In a setback to Shiv Sena (UBT) MLA Ravindra Waikar, the Bombay High Court on Friday dismissed his petition challenging the decision of Brihanmumbai Municipal Corporation (BMC) cancelling permission granted to him to construct a luxury hotel in Jogeshwari, observing that he “suppressed facts” and gave a “false undertaking” while seeking permission for the same.
A division bench of Justices Sunil Shukre and Rajesh Patil said: “… there is no merit in the present Writ Petition and the same is dismissed. There shall be no order as to costs.
Interim relief from coercive action for four weeks
However, following a request by Waikar’s advocate Joel Carlos, the HC has extended interim relief from coercive action for four weeks to permit him to challenge the order before the Supreme Court. The HC, on June 21, had granted interim relief from action against the hotel till further orders.
Petition was filed by Waikar, his wife Manish Waikar and business partners Asoo Nihalani, Amardeep Singh Bindra and Raj Lalchandani, alleging that the permission was cancelled by the BMC in June this year without giving them a show cause notice or a hearing which is against the “principle of natural justice”.
The BMC said that the petitioners obtained the permission in January 2021 and commencement certificate on February 26, 2021, by suppressing the facts that the reservation / designation on the plot as placed in the 1991 Development Plan had already been implemented as per the policy that time.
The bench noted that while preparing the report, the BMC was unaware about the earlier development Agreement dated 9 February 2004. “According to our view, the Petitioners had suppressed the material clauses from the earlier Development Agreement while submitting the proposal under DCPR 2034,” the bench said.
In addition, the petitioners had given an undertaking to the BMC that no purchase notice/ TDR /FSI /award/compensation whatsoever had been received in the past nor any proposal with regard to claiming any benefits there under.
“False undertaking was given by Petitioners”: Court
“Therefore on the face of it false Undertaking was given by Petitioners,” averred the bench.
“In this backdrop we are of the view that the Petitioners submitted a proposal for development of the reservation in the 2034 plan by suppressing the fact that the reservation has already been implemented and that there is a Tripartite Agreement to that effect between the owners, occupiers and Corporation executed way back in 2004 and the same has not been set aside or cancelled or rescinded,” the court added.
On February 9, 2004, a tripartite agreement was signed between the original owners of the land, Directors of Mahal Pictures Private Limited (Amrohis), the BMC and Waikar. According to it, they shall develop 67 percent of the plot area for its designated public purpose and for unrestricted use of the general public and the remaining 33 percent would be used by the owners/ occupiers. The construction on the balance 33 percent would be in terms of DCR.
The bench noted that once the petitioners received benefit under the DC Regulations 1991 and had constructed the club house, therefore effectively the whole scheme was implemented. And, therefore having received compensation in the form of FSI for a land which is reserved for garden purpose, the Petitioners now cannot, in view of DCPR 2034, again apply for compensation when the reservation on the subject land has not changed.
BMC claims to follow the principle of natural justice by issuing show cause notice
The BMC claimed that it followed the principle of natural justice by issuing show cause notice and cancelling permission after receiving its reply.
Also, since the BMC had granted permission in January 2021, the Development permission lapsed after 2 years i.e. on 19 January 2023.
“Architect of Petitioners has not revalidated the Development Permission dated 20 January 2021. As the Development permission was cancelled by Corporation the Commencement Certificate issued to Petitioners is also lapsed.”
