Allowed

Evergreen Associates and Anr. v. the City and Industrial Development Corporation of Maharashtra Limited and Ors.

Bombay HC4 Aug 2023WP/9603/2023

Case brief

AI extract

What is this about?

The High Court directed CIDCO to consider applications for Occupancy Certificates and revised Commencement Certificates on merits within 60 days. Certificates are issued subject to pending PILs but grant no equity if those PILs negatively impact the applicant.

What did the court decide?

CIDCO directed to consider OC applications on merits within 60 days, conditional on PIL outcome without granting equity to petitioners if PIL is adverse.

Evergreen Associates and Anr. Vs the City and… — Writ and Judicial Review | Bombay HC (2023)

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912-913-914-915-ASWP-9606-2023+.DOC

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Arun

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9606 OF 2023

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LK Infrastructure Pvt Ltd & Anr …Petitioners Versus City And Industrial Development Corporation of …Respondents Maharashtra & Ors

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WITH

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WRIT PETITION (L) NO. 13804 OF 2023

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Shankarla L Bhadra …Petitioner Versus The City And Industrial Development …Respondents Corporation & Ors

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WITH

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WRIT PETITION NO. 7684 OF 2023

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Jalaram Enterprises & Anr …Petitioners Versus City And Industrial Development Corporation & …Respondents Ors ARUN RAMCHANDRA SANKPAL WITH Digitally signed by ARUN RAMCHANDRA WRIT PETITION NO. 9603 OF 2023 SANKPAL Date: 2023.08.05 15:12:20 +0530 Evergreen Associates & Anr …Petitioners Versus

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Page 1 of 12 4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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The City And Industrial Development …Respondents Corporation of Maharashtra Limited & Ors

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Mr RD Soni , with VR Kasle, i/b Ram & Co, for the Petitioner in WP/9606/2023, WP/9603/2023

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Ms Pinky Bhansali , for CIDCO in WP/9606/2023, WPST/13804/2023

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Ms PN Diwan, AGP , for State in WP/9606/2023, WPST/13804/2023, WP/9603/2023

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Mr Vipin R Kasle , with Jinesh Sankhala, for the Petitioner in WP/7684/2023 and WPST/13804/2023.

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Mr BD Sharma , for CIDCO in WP/7684/2023. Mrs AA Purav, AGP , for State in WP/7684/2023. Ms Rajlaxmi , i/b Sameer Patil, for CIDCO in WP/9603/2023.

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CORAM G.S. Patel & Neela Gokhale, JJ. DATED: 4th August 2023

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PC:-

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1. We are told that we have to come to the City and Industrial Development Corporation’s (“ CIDCO ”) rescue. This is being told to us in the context of CIDCO repeatedly refusing or in the past refusing Occupancy Certificates because there are pending Public Interest Litigations. Dozens of orders have had to be passed all saying exactly the same thing, viz., that the OC can be issued by CIDCO subject to orders in those PILs, without creating any equities.

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Page 2 of 12

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4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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2. On 12th June 2023, perhaps confronted with the 16th such example, we made an omnibus order:

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“1. Rule. Returnable forthwith.

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The Petition is entirely unnecessary. It has had to be filed only because CIDCO persists in refusing to issue an Occupancy Certificate on the ground of pendency of a Public Interest Litigation.

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We have lost count of the number of orders that we have had to pass in identical situations. Our order of 6th February 2023 in a group of matters reads thus:-

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“1. In all these matters, the Petitioners seek an order against CIDCO to issue an Occupancy Certificate. We are told that these Occupancy Certificates have been delayed (not refused) because of the pendency of some PILs. Our attention is drawn to a previous order dated 8th December 2022. A copy of that order is at page 68 of Writ Petition No. 12452 of 2022. We reproduce that from pages 68 to 69.

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“The Petitioner seeks occupancy certificate.

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2 We have heard learned Counsel for the Petitioner and Respondents.

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3 Reference is made to the order dated 20th January, 2019 in Writ Petition (St.) No.251 of 2020 passed by the coordinate Bench of this Court in similar matter.

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4 In light of that, we adopt

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Page 3 of 12

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4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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the same course and pass the similar order.

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5 The Respondent Nos. 1 and 2 shall consider the application of the Petitioner and grant of occupancy certificate in respect of construction of Plot No.100, Sector No.18, Ulwe Node (12.5% scheme), Navi Mumbai on its own merit. The said decision shall be taken preferably within two months from today.

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6 In case of Occupancy Certificate is granted in favour of the Petitioner by CIDCO, then the same shall be subject to final outcome of PIL No. 154 of 2016 and PIL No121 and 122 of 2019. It is further made clear that the Petitioner herein or any other person claiming through the Petitioner shall not be entitled to claim any equity in the event the orders in PIL No.154 of 2016 and/or PIL No.121 and 122 of 2019 are adverse to the interest of the Petitioner herein or the person claiming through the Petitioner.

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7 We have passed the order in view of the fact that the coordinate Bench has already taken the similar view and

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Page 4 of 12 4th August 2023

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decide the matter.

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8 Writ Petition is disposed of. No costs.”

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There is a similar order of 2nd January 2023 at page 70 which reads thus:

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“Rule. Shri.Hegde, waives service for Respondent Nos.1 and 2-CIDCO. Ms.K.N. Solunke, AGP for StateRespondent No.3. Rule is made returnable forthwith.

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2 By this Petition filed under Article 226 of the Constitution of India, the Petitioner seeks a writ of Mandamus directing the Respondent Nos. 1 and 2 to grant Occupancy Certificate for the building situate at Plot No. 97, admeasuring 1949.64 sq. meters at Section 18 Pt., Ulwe Node Tal. Panvel, Dist. Raigad.

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3 It is not in dispute that the application for Occupancy Certificate is pending on the ground that Public Interest Litigation relating to the subject matter is still pending before this Court.

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4 We have perused the judgment delivered by this Court on 29.01.2020 in Writ Petition (St.) No.251 of 2020 in

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Page 5 of 12 4th August 2023

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case of Pankaj Shankarlal Bhanushali & Ors. Vs. The Municipal Commissioner, Municipal Corporation of City of Panvel & Ors. And also order dated 21.10.2022 passed by Division Bench of this Court in Writ Petition No.11359 of 2022 in case of Reddy’s Infrastructure Pvt. Ltd. & Anr. Vs. The City and Industrial Development Corporation of Maharashtra Limited & Ors. Directing the authority to grant Occupancy Certificate in respect of the subject property on its own merits within a period of two months from the date of order subject to the final out come of PIL No.154 of 2016 and PIL Nos.121 and 122 of 2019.

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5 We adopt the same course and pass the following order:

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a) CIDCO shall consider the application of the Petitioner for grant of Occupancy Certificate on its own merits, in respect of property described in prayer Clause (a) of the petition within two months from today.

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b) In case, the

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Page 6 of 12 4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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Occupancy Certificate is granted in favour of the Petitioner by the CIDCO, the same shall be subject to final out come of PIL No.154 of 2016 and PIL Nos.121 and 122 of 2019.

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c) It is made clear that the Petitioner or any other persons claiming through petitioner shall not be entitled to claim any equity in the event the order or proceedings are adverse to the interest of the Petitioner or a person claiming through the Petitioner.

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d) We have passed this order in view of the fact that our co-ordinate bench has also already taken similar view and decided the matter more particularly in Writ Petition (St.) No.251 of 2020.

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e) Rule is made absolute in the aforesaid terms. Writ Petition is disposed of. No order as to costs.

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Parties to act on the authenticated copy of this order.”

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In all four Petitions, we adopt the same course. We issue Rule. Rule is made returnable forthwith. Rule is made absolute to the following terms:

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Page 7 of 12 4th August 2023

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(a) CIDCO shall consider the application of the Petitioners for an Occupancy Certificate on merits in respect of the properties described in the respective Petitions within sixty days from today.

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(b) If the Occupancy Certificate is granted to the Petitioner by CIDCO, this will be subject to the final outcome of PIL No. 154 of 2016, PIL No. 121 of 2019 and PIL No. 122 of 2019.

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(c) The grant of an Occupancy Certificate will not entitle the Petitioners to claim any equities if the order in the PILs is adverse to the interest of the Petitioners.

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This order is passed since coordinate Benches of our Court have taken an identical view

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The Writ Petitions are disposed of in these terms.

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There will be no order as to costs.”

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As an example there is another order of 28th February 2023 in Writ Petition 2014 of 2023. It reads thus:

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Rule . Returnable forthwith. Respondents waive service.

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An Occupancy Certificate (“ OC ”) is refused because there is a Public Interest Litigation (“ PIL ”) pending. Previously the Court had granted conditional protective orders. One such order is to be found at page 100. It is of 29th January 2020. A similar order, more recently passed, is of 22nd December 2022, a copy of which is at page 112. This is in Writ Petition No. 15781 of

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Page 8 of 12 4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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Paragraph 3 sets out that the reason for the refusal of the OC is the same. Previous Courts have directed the authorities to grant the OC on merits within two months subject to the final outcome of PIL Nos. 154 of 2016, 121 of 2019 and 122 of 2019.

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We pass the same order in this Petition.

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The City and Industrial Development Corporation is to consider the application of the Petitioners for an OC in respect of the property that is the subject matter of the Writ Petition within two months from today. The Commencement Certificate as amended periodically is the one that will be taken into account for this purpose (i.e., not the original CC).

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If the OC is granted in favour of the Petitioners, it will be subject to the final outcome of these PILs. Neither the Petitioners nor any persons claiming through them will claim any equities if the orders in PIL are adverse to the interests of the Petitioners or any person(s) claiming through the Petitioners. This order is necessary because Benches of co-ordinate strength have taken similar views.

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The Writ Petition is disposed of in these terms with no orders as to cost. Rule is made absolute in these terms.

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We fail to understand why CIDCO believes that the High Court must mechanically, and almost as if it is some clerical department of CIDCO, issue the same orders in successive Petitions and why CIDCO refuses to understand that once there is an order where Rule is

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Page 9 of 12 4th August 2023

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made absolute on a certain basis it must conduct itself accordingly for all other matters.

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6. We now make this abundantly clear the pendency of the PIL will not stop CIDCO from issuing an Occupancy Certificate. In every single case that application for an Occupancy Certificate is to be considered on merits and every Occupancy Certificate is explicitly made subject to the outcome of PIL No. 154 of 2016 PIL No. 121 of 2019 and PIL No. 122 of 2019. The issuance of an Occupancy Certificate will not the entitle the applicant to claim any equities if the final orders in PILs are contrary to the interest of the Petitioners.

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7. It is open to CIDCO to endorse these conditions on every single Occupancy Certificate. We will not permit CIDCO to refuse an Occupancy Certificate saying that the applicant should obtain an identical order of this Court. If CIDCO does so, we will proceed to impose costs on CIDCO.

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In the meantime the registry is requested to obtain directions on the administrative side for a priority listing of these PILs. We indicate our willingness to take these PILs, noting that the earliest of them is of 2016.

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Vakalatnama is to be filed by 19th June 2023.

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Rule absolute in these terms. No costs.”

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( Emphasis added )

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3. It is in regard to paragraph 5 that we are now apparently thanked and informed that CIDCO is in fact doing exactly what we would have expected it to do anyway, which is to say that if there is an order in one matter it must apply in all other matters as well.

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Page 10 of 12 4th August 2023

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4. So far as CIDCO is concerned nothing further is required except to point out that having gone down this path, we will not permit CIDCO now to reverse course and demand separate orders in every case where an Occupancy Certificate is demanded.

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5. We note that in the PIL CIDCO is vigorously in opposition to the PIL Petitioner.

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WRIT PETITION NO. 9606 OF 2023:

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6. Mr Soni’s Writ Petition has a difference. He points out from page 90 that here the objection is not to an Occupancy Certificate being subject to orders in the PIL but to a revised Commencement Certificate on the revised sanctioned plan.

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7. The reference to the PIL is the same. Obviously, the Commencement Certificate can be issued on the same terms and conditions, i.e., that the grant of the Commencement Certificate and all other permissions and certificates thereafter are subject to the final orders in the PIL and that even this Commencement Certificate or any construction done or undertaken pursuant to a Commencement Certificate will not entitle the Petitioners to claim equities if the order in the PIL is adverse to the interest of either CIDCO or these Petitioners.

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8. To clarify: if the PIL succeeds, and these Petitioners are required to demolish certain structures or parts of structures or constructions, they will be held to that undertaking.

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Page 11 of 12

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4th August 2023

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912-913-914-915-ASWP-9606-2023+.DOC

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9. We say this only to specify what precisely is meant by no equities so that the developer is under no misapprehension in the future.

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(Neela Gokhale, J)

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(G. S. Patel, J)

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Page 12 of 12 4th August 2023

Evergreen Associates and Anr. v. the City and Industrial Development Corporation of Maharashtra Limited and Ors.

Case brief

What is this about?

What did the court decide?

Evergreen Associates and Anr. v. the City and Industrial Development Corporation of Maharashtra Limited and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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