Full Judgment Text
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8443 OF 2019
(Arising out of SLP (Civil) No.8864 of 2019)
City & Industrial Development .… Appellant(s)
Corporation of Maharashtra Ltd.
Versus
Lambda Therapeutic Research ….Respondent(s)
Ltd.& Ors.
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2. The appellant City and Industrial Development
Corporation of Maharashtra Ltd., (‘CIDCO’ for short) is before
this Court in this appeal assailing the order dated 29.08.2018
passed by the High Court of Judicature at Bombay in
W.P.No.12674 of 2017. The said order was passed in the writ
petition instituted by the respondents No.1 and 2 herein
Signature Not Verified
Digitally signed by
MADHU BALA
Date: 2019.11.06
14:21:12 IST
Reason:
claiming to be aggrieved by the letter dated 20.04.2016,
(signed on 01.07.2016) issued by the appellant herein to the
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respondent No.3 herein requiring them to pay the sum of
Rs.14,05,60,587/ (Rupees Fourteen Crores, Five Lakhs,
Sixty Thousand, Five Hundred and Eighty Seven) towards
additional lease premium up to 30.03.2007 so as to process
the request of respondent No.3 for grant of ‘No dues
Certificate’ in their favour which in turn was required to
secure Occupation Certificate in respect of the building, from
respondent No.4. The High Court having considered the
matter has quashed the demand made through the impugned
letter dated 20.04.2016/01.07.2016 and has directed the
appellant herein to issue ‘No dues Certificate’. The High Court
has further directed the respondent No.4 herein to process
the application for Occupation Certificate. The appellant is
therefore, aggrieved by the order impugned herein.
3. The brief facts leading to the present situation is that
the appellant herein allotted plot bearing No.7, Sector 15,
CIDCO, Belapur, Navi Mumbai, measuring 3176.25 sq.mtrs
to M/s Mehak Developers Pvt. Ltd., the respondent No.3
herein in terms of the New Bombay Disposal of Land
Regulations, 1975. The said allotment was governed by the
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terms and conditions contained in the Agreement of Lease
dated 04.08.1995. The construction was required to be
completed by the respondent No.3 as per the time frame
agreed including the extended time period. Not putting up
the construction within the time frame agreed was to attract
payment of additional lease premium retrospectively from
06.08.2001 as per the agreed terms. The fact that the
respondent No.3 completed construction of ‘A’ Wing of the
building known as Arneja Chambers II within the initially
extended period i.e. 31.12.2005 is not in dispute.
4. The issue that has given rise to the instant dispute
between the parties is relating to the construction put up as
‘B’ Wing of Arneja Chambers II, in the residual area. In that
regard, the fact remains that as per time extended for
completion of the construction, the same was to be completed
on or before 31.12.2008. Though the respondents No.1 and 2
herein who were the writ petitioners before the High Court
and respondent No.3 herein have sought to contend that the
construction was complete in all respects prior to 31.12.2008
and, therefore, they are entitled to seek for issue of ‘No dues
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Certificate’ so as to secure the occupancy certificate without
levy of the additional lease premium, the case of the appellant
herein is that the construction as required had not been
completed except for creation of certain documents in the
nature of completion certificate dated 24.12.2008. The
appellant contends that the respondent No.3 was, therefore,
liable to pay the additional lease premium retrospectively
from 06.08.2001 and as such the communication dated
20.04.2016/01.07.2016 was issued to respondent No.3 which
is in accordance with the terms of allotment. It is the further
contention on behalf of the appellant that there is no privity
of contract between the respondents No.1 and 2 herein on the
one hand and the appellant on the other. As such, in respect
of the said communication issued to respondent No.3 the
respondents No. 1 and 2 cannot raise any grievance. It is
contended that the writ petition therefore ought not to have
been entertained.
5. In the above background, we have heard Mr. Ajit S.
Bhasme, learned senior advocate for the appellant, Mr.
Shyam Divan, learned senior advocate for respondents No.1
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and 2, Mr. V. Giri, learned senior advocate for respondent
No.3 and Mr. Suhas Kadam, learned advocate for respondent
No.4. We have perused the appeal papers.
6. As noted, there is no dispute between the contesting
parties with regard to the allotment of plot made by the
appellant in favour of the respondent No.3, the completion of
the construction of ‘A’ Wing of the building Arneja Chambers
II within the initial extended period i.e. 31.12.2005 and the
permission having granted by the appellant to the respondent
No.3 for putting up construction of the ‘B’ Wing of the
building Arneja Chambers II in the residual area. The
extension of time for completion of construction of ‘B’ Wing
being granted upto 31.12.2008 is also not in dispute. The
issue which however engages the consideration of the Court
is as to whether in the present circumstance the demand for
additional lease premium amounting to Rs.14,05,60,587/ in
the manner as has been demanded through the
communication dated 20.04.2016/01.07.2016 is justified and
as to whether the challenge to the same could have been
raised by the respondents No.1 and 2 herein. The question
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ultimately is, in that background whether the High Court was
justified in quashing the said communication as a final
conclusion and directing issue of ‘No dues Certificate’ more so
when the respondents No.1 and 2 herein were before the
Court in that regard, while the demand contained therein was
made against the respondent No.3 and they had not assailed
the same.
7. The learned senior advocate for the appellant has at
the outset contended that there being no privity of contract
between the appellant and the respondents No.1 and 2, the
respondents No.1 and 2 had no locus to assail the
communication dated 20.04.2016/01.07.2016 issued to
respondent No.3. The learned senior advocate representing
respondents No.1 and 2 would however seek to contend that
the respondent No.3 after having obtained the allotment of
the plot as also approval and extension of the period for
construction had completed the construction as on
31.12.2018 and in that view the respondents No.1 and 2 had
purchased the ‘B’ Wing of the building Arneja Chambers II
under the Sale Deed dated 16.06.2011 for a consideration of
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Rs. 7,21,00,000/ (Rupees Seven Crores TwentyOne Lakhs).
In that regard a sum of Rs. 7,01,00,000/ (Rupees Seven
Crores One Lakh) was paid to respondent No.3 and a sum of
Rs.20,00,000/ (Rupees Twenty Lakhs) was deposited in
terms of the mutual understanding between the parties. In
such circumstance the respondents No.1 and 2 being a
bonafide purchaser for valuable consideration had interest in
the property in issue and since the regulations required issue
of ‘No due Certificate’ for securing the Occupation Certificate
the respondents No.1 and 2 were left with no other alternative
but to approach the High Court and seek for the relief as has
been done. The learned senior advocate for respondent No.3
would support the contention of respondents No.1 and 2 and
contended that as respondent No.3 was arrayed as a party to
the petition and the contention on their behalf was also
available before the Court, the writ petition being entertained
by the High Court was in accordance with law.
8. Having adverted to the said contention we find that
essentially it is no doubt true that there is no privity of
contract between the appellant and the respondents No.1 and
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2 herein if looked at in technical terms. However, what
cannot be lost sight is that the construction in question is
put up by the respondent No.3 on a plot allotted by the
appellant and such building constructed has been purchased
by the respondents No.1 and 2 under registered Sale Deed
dated 16.06.2011 for a valuable sale consideration. In that
circumstance the respondents No.1 and 2 are desirous of
occupying the building. Though the right in that regard in a
normal circumstance is to be exercised and the specific
performance for possession with Occupation Certificate is to
be enforced against the respondent No.3 who is their vendor,
the respondent No.4 which is the statutory authority for
issuing the Occupation Certificate was also arrayed as a
respondent. The respondents No.1 and 2 while seeking
appropriate directions against the respondent No.4, having
noticed that the impugned communication would come in
their way of securing Occupation Certificate have chosen to
assail the same.
9. Further the covenant contained in the Sale Deed dated
16.06.2011 between respondents No. 1 and 3 in para 6 (G)
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creates an interse liability on mutual understanding with
regard to the costs incurred for securing ‘No dues Certificate’
from appellant which reads as hereunder;
“The Purchasers have deposited in escrow the a
sum of Rs. 20,00,000/ (Rupees Twenty Lakhs
only) with M/s. Khaitan & Jayakar, Advocates &
Solicitors, which will be released to the Developers
as and when the Developers obtain the Occupancy
Certificate for the said premises from the NMMC
and upon receipt of approval for extension of time
period, and consequent issue of No dues
Certificate from CIDCO. The costs incurred for
receipt, of approval for extension of time; period
which shall lead to issue of no dues Certificate
from CIDCO shall be borne by the Developers and
the Purchasers equal proportions.”
Therefore, if the said aspect of the matter is kept in view the
respondents No.1 and 2, to the limited extent can be
considered as aggrieved persons for examination of their
contention to the limited extent. The contentions to indicate
that the construction was completed before 31.12.2008 and
that respondent No.3 is therefore not liable to pay the
amount indicated in the impugned communication cannot
however be accepted at the instance of respondents No.1 and
2 since the fact of completion of construction within the time
frame is to be established by respondent No. 3 alone. Hence
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the further examination herein is to be made keeping in view
this aspect as well.
10. Having arrived at the above conclusion what is
required to be taken note is that the respondent No.3 herein
had submitted an undertaking dated 19.05.2004 which reads
as hereunder:
“UNDERTAKING
We M/s. Mehak Developers undertake to
apply for occupancy certificate for plot no.7,
Sector 15, C.B.D. by 31.12.2005 to N.M.M.C.
failing which we undertake to pay additional
lease premium as applicable from
06.08.2001 for the area for which the
occupancy has not been applied for.
For Mehak Developers,
(Proprietor)
Add: 507, Sharda Chambers,
15, New Marine Lines,
Mumbai – 400 020.”
11. Though the period for completion indicated in the
undertaking is 31.12.2005, the undisputed position is that
the time has been extended upto 31.12.2008 and the issue is
as to whether the respondent No.3 has in fact completed the
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construction within the said period and whether that will be
sufficient to avoid the levy of additional lease premium. The
extension was granted through the communication dated
31.07.2007 (Annexure P6). The said extension is in terms of
the Regulations 6 and 7 contained in Regulations of 1975
which read as hereunder:
Regulations6
“Completion of building, factory, structure or
other work within the prescribed time – The
Lessee shall complete building, factory
structure or other work for which the land
has been granted within the time prescribed
by the Managing Director.”
Regulation – 7
“Permission for extension of time – If the
Intending Lessee obtains development
permission and commences construction
accordance with the conditions of agreement
to lease made between him and the
Corporation but has been unable to complete
the construction within the time stipulated
in the agreement to lease for reasons beyond
his control, the Managing Director may
permit extension of time for completion of
buildings, factory, structure or other work on
payment of additional premium.”
12. The respondent No.3 has relied on the completion
certificate dated 24.12.2008 issued by the architects
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addressed to the respondent No.4 herein. Though the
respondent No.3 has sought to rely on the same, what is
required to be taken note is the communication dated
09.02.2009 addressed by the respondent No.4 to respondent
No.3 indicating the requirement to be complied for grant of
occupancy certificate. What is inter alia sought therein is ‘No
dues Certificate’ from the appellant to be submitted to
respondent No.4. The same would indicate that the
respondent No.3 herein though claimed to have completed
the construction before 31.12.2008 had only sought for issue
of ‘No dues Certificate’ from the appellant herein through the
communication dated 11.08.2010. Subsequently, a letter
dated 31.01.2011 was issued, whereafter the reminder dated
04.05.2013 was sent by respondent No.3 to the appellant
seeking for ‘No dues Certificate’. In the said reminder dated
04.05.2013 reference is made to the occupancy certificate
obtained for 78 per cent of the FSI which relates to ‘A’ Wing
and it has been indicated therein that the balance 22 per cent
was completed by 31.12.2008. It is in reply to the
said letter the impugned communication dated
20.04.2016/01.07.2016 was issued.
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13. In the present circumstance from what has been
narrated above it is noticed that there is lacuna in the
manner in which the appellant has also dealt with the matter.
However, neither the High Court nor this Court while
exercising the limited jurisdiction of judicial review can enter
into the factual aspects to determine whether the
construction in fact had been completed prior to 31.12.2018
before a decision is taken on that aspect by the appellant,
based on the available records and spot verification if need
be. This is more so when that aspect of the matter is disputed
by the appellant herein. The respondents no doubt have
relied on the completion certificate dated 24.12.2008, which
as already taken note has been addressed to the respondent
No.4 and the copy of the same has been furnished to the
appellant while making a request for issue of the ‘No dues
Certificate’. Essentially when the plot was allotted on certain
conditions and the same stipulated completion of the
construction in a time frame to avoid liability and when the
statutory provisions required the ‘No dues Certificate’ from
the appellant so as to seek occupancy certificate from the
respondent No.4 the primary procedure is for the respondent
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No.3 to submit necessary documents to the appellant to
establish that the construction is put up within the time
frame stipulated and to indicate that they are not liable to
pay any additional lease premium. In the instant case we do
not find that such procedure has been complied with. Even if
the requirement was not complied and if the appellant was
entitled to levy the additional lease premium the same was
required to be done by adopting an appropriate procedure.
Hence to that extent the observations of the High Court that
the Principle of Natural Justice has not been complied by the
appellant is justified. However, such lapse in procedure was
not sufficient to nullify the demand in absolute terms. The
High Court, in our view, shall have issued direction to the
appellant Corporation to follow appropriate procedure in that
regard and pass a reasoned order.
14. Further, we take note that the demand made in the
impugned communication is for the period till 30.03.2007
though it is contended by the appellant that the construction
has not been completed as on 31.12.2008 nor would the
communication indicate as to when according to them the
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construction was completed. That apart though certain
details were indicated with regard to the construction in the
reminder letter dated 24.05.2013, in response to which the
impugned communication is issued, there is no reference to
the details therein. Hence, despite the manner in which the
impugned communication dated 20.04.2016/01.07.2016
issued not being sustainable and the quashing of the same as
made by the High Court is justified, the appropriate course
that ought to have been followed by the High Court is to remit
the matter to the appellant herein by directing them to
provide opportunity to the respondent No.3 to file necessary
documents in support of the completion certificate dated
24.12.2008 issued by the Architect so as to enable the
appellant to make a factual determination and to arrive at an
appropriate conclusion afresh by taking into consideration all
aspects of the matter. Hence in that view it would be
appropriate for us to order accordingly.
15. Notwithstanding the said conclusion what cannot be
overlooked is also the fact that the respondents No.1 and 2
who had made a sizeable investment to purchase the
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property are the ones who would be ultimately affected and
when a discretionary jurisdiction is being exercised by this
Court the equities are also required to be worked out and
balanced so as to protect the interest of all parties before the
Court in the meanwhile. Hence pending such reconsideration
an avenue is to be created for the respondent No.4 to issue
the occupancy certificate so as to enable the respondents
No.1 and 2 to occupy and at the same time the interest of the
appellant is also required to be secured.
16. Therefore, pending reconsideration of the matter by
the appellant, the respondents No.1 to 3 shall either jointly or
severally deposit a sum of Rs.3,50,00,000/ (Rupees Three
Crores Fifty Lakhs) with the appellant towards provisional
additional lease premium which would be subject to final
decision. On the said amount being deposited the appellant
shall issue a provisional ‘No dues Certificate’ limited for the
purpose of enabling respondent No.3 to secure the occupancy
certificate from the respondent No.4. On such provisional ‘No
dues Certificate’ being submitted to the respondent No.4, the
respondent No.4 shall process the application for issue of
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occupancy certificate for the ‘B’ Wing of the building Arneja
Chambers II.
17. Insofar as the claim of the appellant for an additional
lease premium in the event of the respondent No.3 does not
satisfy the construction was completed before the
31.12.2008, the appellant shall provide opportunity and pass
fresh orders in that regard. If the appellant is satisfied that
the construction is completed in terms of the extension
granted and if it is found they are not liable for the levy of
additional lease premium the amount of Rs.3,50,00,000/
(Rupees Three Crores Fifty Lakhs) as indicated above shall be
returned to the parties who deposits the same. On the other
hand, on determination it is concluded that the respondent
No.3 is due to pay any additional lease premium, the
appellant would be entitled to recover the same from the
respondent No.3 and until the said aspect attains finality,
there shall be charge over the property purchased by
respondents No.1 and 2. Ultimately if the amount is held to
be due from the respondent No.3 and if the same is not paid,
the appellant will have the liberty of withdrawing the
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provisional “No dues Certificate” issued pursuant to the
direction of this Court and intimate respondent No.4 in that
regard for appropriate action. Needless to mention that if the
interim amount of Rs.3,50,00,000/ (Rupees Three Crores
Fifty Lakhs) is deposited by respondents No.1 and 2, they
would be entitled to work out their interse right against
respondent No.3.
18. The appeal is accordingly allowed in part, in terms of
the observations and directions contained in para 16 and 17
supra. It is made clear that we have not expressed any
opinion on the merits of the matter. There shall be no order
as to costs. All pending applications shall stand disposed of.
….……………………….J.
(R. BANUMATHI)
….……………………….J.
(A.S. BOPANNA)
….……………………….J.
(HRISHIKESH ROY)
New Delhi,
November 06, 2019
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