Suman Shyam, J.

1. Rule. Rule is made returnable forthwith.

2. By consent of the parties, the matter is taken up for final hearing.

3. Assailing the demand-cum-show cause notice dated 12th September 2017 (Exhibit “R”), whereby, the Respondent No.1– Mumbai Metropolitan Region Development Authority (“MMRDA”) had demanded additional premium/penalty as per statements ‘A’ and ‘B’ annexed thereto, for the alleged delay of 7 years and 12 days in completion of construction of a Convention & Exhibition Centre and Commercial Complex on Plot No. C-64, ‘G’ Block, Bandra-Kurla Complex, Mumbai, the Petitioners have approached this Court by filing this Writ Petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India. During the pendency of the Writ Petition, by the communication dated 13th June 2019 (Exhibit “X”) a further amount of Rs.1116,83,10,102/- was demanded from the Petitioner No. 1 as additional premium, along with interest, towards extension of time for completing the construction of the building by using the additional built up area of 72,500 sq mtrs. allotted under the Supplementary Lease Deed dated 13th July 2007. The said Notice is also under challenge in this Writ Petition. The facts and circumstances giving rise to the filing of the present Writ Petition, shorn of unnecessary details, are as hereunder.

4. The Petitioner No.1 is a company incorporated under the provisions of the Companies Act, 1956. As per statements made in the Writ Petition it is engaged inter alia in the business of exploration of petroleum products and allied activities. Petitioner No.2 is a shareholder of the Petitioner No.1 company. The expression “Petitioner” shall here-in-after refer to the Petitioner No.1 company. The Respondent No.1, MMRDA, is a statutory authority constituted under Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974. Respondent Nos.2 and 3 are its officers.

5. In the month of December 2005, Respondent No.1, being the owner of the land, had invited bids for leasing out Plot No. C- 64 admeasuring approximately 75,000 sq. mtrs. situated in ‘G’ Block of Bandra-Kurla Complex (BKC) for the purpose of construction of “Convention and Exhibition Centre and Commercial Complex”. The Petitioner had submitted its bid for the said plot and was declared successful bidder. As such, by the letter dated 15th February 2006, the Respondent No.1 had approved the proposal for leasing out the aforesaid plot of land to the Petitioner for a maximum permissible built-up area of 65,000 sq. mtrs. for the Convention and Exhibition Centre and 50,000 sq. mtrs. for the Commercial Complex, aggregating to 1,15,000 sq. mtrs., for a total premium of Rs.1104 crores. Pursuant thereto, a registered Lease Deed dated 1st September 2006 came to be executed by and in between the Petitioner and Respondent No.1 for leasing out the demised plot for a term of 80 years. Possession of the said plot of land was handed over to the Petitioner on the same day i.e. on 1st September 2006.

6. Article 2(d) of the Lease Deed dated 1st September, 2006 stipulates that the lessee shall, within three months from receipt of approval of plans, commence and within a period of four years from the date of the lease, build and completely finish the construction of the Convention and Exhibition Center and Commercial Complex, fit for occupation. Article 2(e) lays down that in case of failure to adhere to the said time limit, extension of time may be granted upon payment of additional premium at the prescribed rates.

7. On 14th October 2006 the Petitioner had applied for permission to start excavation and removal of earth on site by attaching a report of the Structural Consultants. By the said letter, the Petitioner had also informed the Respondents that it will not carry out any construction activity on the site without prior intimation to the MMRDA and also without obtaining the required statutory permissions.

8. After the execution of the Leased Deed dated 1st September 2006, the FSI for the plots in block ‘G’ of BKC was increased from 2.00 to 4.00. As such, in the month of February 2007, the Petitioners had applied for allotment of additional built-up area of 72,500 sq. mtrs.. By the letter dated 7th May 2007, the Respondent No.1 had approved the allotment of additional built up area of 41,000 sq. mtrs. for the Convention Centre and 31,500 sq. mtrs. for the Commercial Complex, aggregating to 72,500 sq mtrs., against payment of premium of a total amount of Rs.696 crores. Upon allotment of the additional built up area, as aforesaid, a Supplementary Lease Deed dated 13th July 2007 was executed by and between the parties in respect of the additional built-up area.

9. It would be pertinent to note herein that after the allotment of the additional built up area, Reliance Communication & Infrastructure Ltd., along with another, had instituted Writ Petition No.1165 of 2007 before this Court challenging the grant of the additional FSI of 71,500 sq mtrs to the Petitioner for the Convention and Exhibition Centre (41,000 sq mtrs) and Commercial Complex (31,500 sq mtrs). The Petitioner was impleaded as Respondent No. 3 in that writ petition. By the interim order dated 15th October 2007 passed in the said Writ Petition, a Division Bench of this Court had restrained the Petitioner from utilizing the additional FSI of 31,500 sq. mtrs. allocated for the Commercial Complex.

10. On 17/04/2008, the Petitioner submitted revised plans seeking necessary approvals. Based on the same, on 12th June,2008, Commencement Certificate (CC), upto the plinth level, only in respect of the Convention & Exhibition Centre plot “A’ of plot C-64 in Block “G” of BKC Complex, with total permissible built up area of 1,06,000sq mtrs. was issued in favour of the Petitioner. However, no CC was issued in respect of the commercial complex.

11. There is no controversy in this case about the fact that the proposed development was composite in nature with common basement and foundation. As such, by the letter dated 28th January 2009, the Petitioner had submitted progress report and informed the Respondent No.1 that commencement of construction at site was affected due to the interim order passed by the court since the basement and foundation of the Convention & Exhibition Centre (CEC) as well as the Commercial Complex (CC) was common. However, by letter dated 18th February 2009, the Respondent No.1 had replied that since there was no restraint order in respect of the Convention & Exhibition Centre, hence, the Petitioner to continue with the construction of the CEC as per CC (1,06,000 sq mtrs) and also expedite the final hearing of the proceeding pending in the court. The Petitioner was also asked to furnish Bank Guarantee of Rs 20 crores towards liquidated damage and Completion Guarantee for a sum of Rs 20 crores.

12. In response to the above, by the letter dated 16th March 2009, the Petitioner had highlighted the design uncertainty in proceeding with the construction and had sought the guidance of the MMRDA in the matter. Due to the uncertain circumstances arising in view of the pending Court proceedings, the Petitioner had also sought extension of time to complete the project. However, in the meantime, the Commencement Certificate issued earlier on 12th June 2008 had lapsed in June 2009.

13. While the matter was poised as above, in the 129th Meeting of the MMRDA held on 8th September 2011, the Respondent No.1 had resolved to extend the time for allotment of additional FSI in ‘G’ Block till December 2012. Accordingly, by the letter dated 8th November 2011, the Respondent No.1 had offered additional built-up area to the Petitioner by recording that there would be no time limit for construction of such additional built-up area.

14. However, in view of the pendency of Writ Petition No 1165 of 2007 and the interim order operating therein, on 14th October 2010, the Petitioner had offered to surrender the additional built up area of 72,500 sq.mtrs and sought refund of the amount of Rs 1064 crores being the premium, along with interest, paid for the aforesaid built up area. The said request was followed by the subsequent letters dated 3rd August 2020 and 10th January 2012 rehearing the request. In response to the above request of the Petitioner, by the letter dated 1st February 2012, the Respondent No.1 had informed the Petitioner that its request for refund of lease premium by surrendering the additional built up area cannot be considered as there is no provision in the Leased Deed as well the Supplementary Lease Deed permitting the same. It was, however, clarified that in so far as the request for extension of time for completion of construction on the plot under reference as per Article 2(d) of the Lease Deed dated 1st September 2006, is concerned, the period during which the stay order of the court was under operation, will not be considered for computing the four years time period, meaning thereby, that the period, during which the interim order passed in Writ Petition No.1165 of 2007 was operative, shall be excluded while computing the four-year period stipulated under Article 2(d) of the Lease Deed dated 1st September, 2006. Be it stated here in that the Writ Petition No 1165 of 2007 was withdrawn on 12th March 2012 as a result of which, the stay order also got vacated on the same day.

15. In the wake of the aforesaid development, the Respondent No.1, by letters dated 20th March 2012 and 3rd April 2012 approved allotment of further additional built-up area of 1,00,000 sq. mtrs. and 25,000 sq. mtrs. against payment of premiums of Rs.1470 crores and Rs.367.50 crores respectively. With the allotment of the additional built up area of 1,25,000 sq mtrs, the total built-up area allotted by the Respondent No.1 to the Petitioner for construction to be carried out on the same plot, was increased to 3,12,500 sq. mtrs. It is a matter of record that the Petitioner had paid an aggregate premium of Rs.4,005 crores to the Respondent No.1 for the allotment of the entire built up area of 3,12,500 sq. meters.

16. In view of the allotment of additional built-up area, as aforesaid, the Petitioner was required to revise the development plans for a composite structure and also obtain various statutory approvals afresh including the environmental clearance under the EIA Notification dated 14th September 2006, height clearance from Civil Aviation Authorities, approval from the High Rise Committee, permission from the Municipal Corporation of Greater Mumbai and other statutory authorities. Accordingly, various approvals were obtained during the year 2013 and early part of the year 2014.

17. On 26th June 2013, Environment Clearance for the proposed “ Convention & Exhibition Centre and Commercial Complex” over plot No. C-64 in Block-G of BKC was granted to the Petitioner for the entire FSI of 3,12,500 Sq. Mtrs. In the said communication also, the CEC & CC was shown as a composite construction.

18. After compliance of the above requisites and submission of the revised plans, the Respondent No.1 had issued Commencement Certificate dated 16th April 2014 for construction upto the 7th floor level of the composite building comprising Convention & Exhibition Centre and Commercial Complex. Thereafter, further Commencement Certificates were issued on 23rd December 2016, 17th April 2017 and 19th May 2017.

19. In the meantime, in its 131st Meeting held on 22nd October 2012, the Respondent No.1 had considered granting extension of time for completion of construction by taking note of the delay caused in obtaining multiple statutory permissions/ clearance form different agencies. After considering the matter, the Respondent No.1, vide Resolution No.1283 adopted in the said meeting, had recommended extension of time from four years to six years for completing the construction. The said resolution was, however, kept in abeyance for some. Finally, in its 138th Meeting held on 26th August 2015, the Respondent No.1 had resolved to amend Article 2(d) to provide six years time period for completion of construction in respect of plots leased after the date of the resolution and further resolved to constitute a One Man Committee to examine the issue of recovery of additional premium in the cases where delay was attributable to time required for obtaining statutory permissions.

20. Notwithstanding the above developments,the Respondent no.1 had insisted on an undertaking from the Petitioner to pay the additional premium for grant of extension of time for completing the construction of the building. As such, on 18th November 2016, the Petitioner had submitted an undertaking to the above effect thus, agreeing to pay the additional premium for extension of time for completing the construction of the building over Plot No- C-64 in Block “G” of the BKC before receipt of Occupation Certificate or decision of the Authority, which ever was earlier, with a further undertaking not to create any third party liability on the project till receipt of the Occupation Certificate.

21. Based on such undertaking, the Respondent No 1 had issue further Commencement Certificate dated 19th May 2017 for the Fire Check floor and the 15th (part) floor.

22. While the above process was under way, the Respondent No. 1 had issued the impugned Notice dated 12th September 2017, alleging that as per Article 2(d) of the Lease Deed dated 01st September 2006, the Petitioner had the obligation to erect and completely finish the construction, fit for occupation, within four years from the date of execution of the Lease Deed. However, although, there was delay of 7 years and 12 days the Petitioner had failed to pay the penalty for the entire period of delay till completion of the construction, fit for occupation. It was further mentioned that the amount on account of delay in construction, along with interest, has been shown in Annexures “A” and “B”. It was alleged that the Petitioner had committed breach of the terms and conditions of the Deed of Lease. As such, the MMRDA had the power to recover the said amount as arrears of land revenue and also resume the land as per Articles 5 & 6 of the Lease Deed. The Petitioner was, therefore, called upon to remedy the situation within 30 days, failing which, the Authority will have the right to determine the lease and enter upon the leased premise and also proceed to recover the amount due as arrears of land revenue.

23. It would be pertinent to mention here-in that the Notice dated 12th September, 2017 does not mention the amount claimed by the Respondent No. 1. The figures projected in the Statements “A” & “B” annexed to the Writ Petition are also not legible. However, it appears that upon receipt of the Notice dated 12th September 2017, the Petitioner had sent reply dated 11th October 2017 denying its liability to pay the amount claimed with a further request to withdraw the show cause notice dated 12th September, 2017. However, no action was taken by the Respondents on such request made by the Petitioner.

24. Aggrieved by the dated 12th September 2017 the Petitioner had instituted Writ Petition on 30th November, 2017 which was originally registered as Writ Petition (L) No 3395 of 2017. On 8th December 2017, this Court, while issuing notice, had recorded the statement made on behalf of Respondent No.1 that till next date of hearing no coercive steps would be taken pursuant to the impugned notice. Records reveal that the said ad-interim order was extended by the court from time to time. Subsequently, the said writ petition was registered as Writ Petition No.242 of 2018 i.e. the present Writ Petition.

25. On 06th February 2019, the Architect engaged by the Petitioner had applied for part Occupation Certificate for the built up area of 44,621 sq.mtrs. That apart, by the letter dated 18th February 2019, the Petitioner had deposited a sum of Rs.646,77,68,594 (Rupees Six Hundred and Forty Six Crores Seventy Seven Lakhs Sixty Eight Thousand Five Hundred and Ninety Four) after deducting TDS amount of Rs.21,32,20,676/- and furnished a Bank Guarantee of an amount of Rs.13,12,54,85,287/- (Rupees Thirteen Hundred Twelve Crores Fifty Four Lakhs Eighty Five Thousand Two Hundred and Eighty Seven) based on an alternate computation treating the delay to be for the period from 01st September 2010 to 17th February 2019. It was also mentioned in that letter that the amount was being deposited under protest and without prejudice to the rights and contention of the Petitioner in the pending Writ Petition.

26. Upon receipt of the above amount, on 20th February 2019, the Respondent No.1 had issued part Occupation Certificate for 44,621 sq. mtrs. However, soon thereafter i.e. on 13th June 2019, the Petitioner was served with another communication demanding payment of a further amount of Rs.1116,83,10,102/- as additional premium for the delay in completing the construction of the additional built up area as allotted under the Supplementary Lease Deed dated 13th July 2007.

27. Despite the notice dated 13th June 2019, the Petitioner, through its Architect, had applied for further part Occupation Certificate for the built up area of 1,24,000 sq. mtrs. However, the Respondent No. 1 refused to process the same until the amount of Rs.1116,83,10,102/- was paid. Under such circumstances, the Petitioner had filed Interim Application No.2171 of 2020 arising out of this Writ Petition, seeking a direction upon the Respondent No.1 for issuance of Occupation Certificate without insisting upon payment of the additional premium. By the judgment and order dated 12th July 2021 passed in the Interim Application No. 2171 of 2020, this Court had allowed the prayer made in the Interim Application and directed the Respondent No.1 to process the applications seeking Occupation Certificates including the application dated 3rd February 2020, without insisting on payment of the amount mentioned in the subsequent demand notice dated 13th June 2019. In the said order it was also observed that when the court was in seisin of the matter and considering the earlier interim order dated 8th December 2017, the Respondents ought not to have issued the notice dated 13th June 2019. By carrying out amendments in the writ petition, the Petitioner has challenged the letter dated 13th June 2019.

28. The Respondent Nos. 1 and 2 have opposed the Writ Petition by filing joint Reply. The plea taken by the Respondents in their Reply, reduced to their essence, is to effect that that the Writ Petition involves disputed questions of fact, which cannot be adjudicated in a Writ Petition; that the Writ Petitioners have an alternate, efficacious remedy by way of Civil Suit; that the dispute is purely contractual in nature involving interpretation of the terms and conditions of the contract, which cannot be entertained in a Writ Petition; that this is not a case of infringement of any constitutional, statutory or fundamental right of the Petitioner; that the Demand Notice has issued on account of breach of conditions of the Lease Deed and, therefore, the same does not involved violation of any constitutional right; that Articles 2(a) and 2(d) of the Lease Deed, which require completion of the construction within a period of four years from the date of Lease Deed are binding and mandatory clauses in the Lease Deed. Therefore, those are enforceable under the law; even if the delay in construction has occurred due to interim order of Court or on account of force majeure, even than, in view of Article 2(d), any extension of time could only been granted upon payment of additional premium. Since the MMRDA would not have any power to waive such amount, therefore, payment of additional premium/penalty was inevitable in case of delay; that the restraint order of the Court was limited only to the additional area of 31,500 sq.mtrs. of commercial FSI. Therefore, the same did not prevent commencement and completion of construction of the Convention Centre; that allotment of additional built-up area was optional. Since the Petitioners have opted for the additional builtup area, therefore, the allotment of additional built up area cannot be a justifiable ground for the delay in completion of construction; that the Petitioners have issued an unconditional undertaking on 14th December 2016 agreeing to pay the additional premium/penalty for grant of extension of time. Therefore, they would be bound by such undertaking; that the Writ Petitioner has approached this Court by suppressing material facts and particulars pertaining to the undertaking dated 14th December 2016, therefore, the Writ Petition is liable to be dismissed on such count alone; that the decision of the MMRDA to extend the time period from four years to six years was applicable prospectively, i.e., with effect from August, 2015 and therefore, the same would not cover the case of lessees such as the Petitioner in respect of whom, the Lease Deed was executed prior to August, 2015.

29. By filing Rejoinder, the Writ Petitioner, while denying the assertions made by the Respondents, has reiterated that it is a case of violation of fundamental right of the Petitioner guaranteed under Article 14 of the Constitution of India. It has further been asserted that even in contractual matters, unfair treatment extended by the State or its instrumentality would be amenable to writ jurisdiction of this Court; that due to the allotment of the additional built-up area and the integrated design of the project, it would be impossible to complete the original portion of the building within four years since it included common structures such as common basement and services, etc. The Petitioners have also denied the contention that the restraint order of the Court did not affect the integrated planning and common infrastructure of the project so as to permit bifurcation of the construction; it has also been alleged that the Petitioner being similarly situated Lessee, extension of time from four years to six years would be equally applicable to them as denial of such benefit would amount to unfair discrimination; the Petitioners have further contended that similarly situated entities such as Bharat Diamond Bourse & Indian Oil Corporation have been granted extension of time without levy of additional premium; it has also been contended that the undertaking dated 14th December 2016 was obtained under coercion viz. On the threat of withholding Occupation Certificate and, therefore, the same cannot preclude the Petitioner from agitating its grievance as per law; the Petitioner has also denied suppression of material facts.

30. In their additional Reply, the Respondents have controverted the statements made in the Rejoinder Affidavit while maintaining their original stand justifying the demand for the additional premium.

31. This Writ Petition was analogously heard along with three other Writ Petitions being Writ Petition No.864 of 2018, Writ Petition No.2377 of 2018 and Writ Petition No.3209 of 2017, involving similar issues wherein, identical reliefs were sought by the Writ Petitioner(s).

32. We have heard the learned Senior Counsel appearing for the parties and have also perused the pleadings and documents placed on record.

33. Mr. Vikram Nankani, learned Senior Counsel appearing for the Petitioners, has argued that the impugned demand notice dated 12th September 2017 and the subsequent communication dated 13th June 2019 issued by Respondent No.1 seeking recovery of additional premium on account of alleged delay in completion of construction are arbitrary, illegal and unsustainable in law. According to the learned Senior Counsel, the demand proceeds on an erroneous interpretation of Clauses 2(a), 2(c) and 2(d) of the Lease Deed dated 1st September 2006, in as much as under Clause 2(c), no construction work could commence until the plans and specifications were approved by the planning authority. It is therefore submitted that the timeline for completion of construction cannot be computed independent of such approvals.

34. The learned Senior Counsel further submits that the project contemplated construction of a Convention and Exhibition Centre and Commercial Complex as a composite development. Subsequent to the execution of the Lease Deed, Respondent No.1 had allotted additional built-up area of 72,500 sq. mtrs. under the Supplementary Lease Deed dated 13th July, 2007, and thereafter, further additional built-up area of 1,25,000 sq. mtrs. in the year 2012. The allotment of such additional built-up area required revision of the development plans and fresh statutory approvals and therefore, the timelines originally contemplated under the Lease Deed dated 1st September 2006 cannot be strictly applied to such construction.

35. The learned Senior Counsel further has submitted that the allotment of additional built-up area was unconditional and Respondent No.1 had itself clarified that there would be no time limit for construction of such additional built-up area. Therefore, by granting such additional development rights during the subsistence of the Lease Deed, Respondent No.1 must be deemed to have waived the condition relating to completion of construction within four years.

36. It is also submitted that the development of the project was affected by the order of injunction passed by this Court in Writ Petition No.1165 of 2007, which restrained utilization of a portion of the additional built-up area until 12th March 2012. The Petitioners had requested Respondent No.1 to exclude the said period while computing the four-year period stipulated under the Lease Deed which was confirmed by the Respondent No. 1 vide communication dated 1st February 2012. As such, such time line cannot be enforced.

37. The Senior Counsel has further submitted that the project required several statutory approvals from various authorities including environmental clearance, aviation height clearance, approval of the High-Rise Committee and permissions from the Municipal Corporation of Greater Mumbai. According to the Petitioner, these approvals were obtained over a period of time and the commencement certificate for the integrated project was eventually issued only in the year 2014. The learned Senior Counsel therefore submits that the period of four years contemplated under Clause 2(d) of the Lease Deed must be construed in a commercially reasonable manner and the same must be computed only after approval of the development plans and issuance of the necessary commencement certificates.

38. The learned Senior Counsel has further argued that the Respondent No.1 had itself recognized the practical difficulties faced by developers in completing construction within four years and at its 138th Meeting held on 26th August 2015, resolved to amend the standard form of lease by extending the period for completion of construction from four years to six years. According to the Petitioner’s Counsel, restricting the benefit of the said decision only to leases executed after 26th August 2015 would be arbitrary and discriminatory, since all developers in Bandra-Kurla Complex are required to obtain similar statutory approvals. It is, therefore, contended that the impugned action of the Respondent No.1 violates Article 14 of the Constitution of India.

39. To sum up his arguments, the learned Senior Counsel has submitted that the present case is squarely covered by the decision of this Court rendered in the case of Raghuleela Builders Pvt. Ltd. & Anr vs. MMRDA & Ors., whereby in identical fact situation and similar circumstances, this Court, by interpreting similar clauses in the lease deed, has held that the demand of additional premium on account of delay in completing the construction was arbitrary and illegal and, accordingly struck down such demand.

40. Dr. Birendra Saraf, learned Senior Counsel appearing for the Respondent Nos.1 and 2,on the other hand, has opposed the prayer made in the Writ Petition and has also questioned the maintainability of the Writ Petition by contending that the dispute between the parties arise out of contractual obligations contained in the Lease Deed and the Supplementary Lease Deed and the same involves several disputed questions of fact which cannot be adjudicated in a writ petition in exercise of jurisdiction under Article 226 of the Constitution of India. He has further argued that the Writ Petition is hit by delay and laches and the relief prayed for is also barred by limitation. According to Dr. Saraf, , since the Petitioner had earlier sought extension of time for completion of construction and had not challenged the communications issued by Respondent No.1 at the relevant time, hence, the challenge made to such demand notices is not maintainable at this point of time.

41. The learned Senior Counsel for the Respondents has further argued that the recovery sought by Respondent No.1 is strictly in accordance with the provisions of the MMRDA Act, the MMRDA (Disposal of Land) Regulations, 1977 as well as the terms and conditions of the Lease Deed executed by and between the parties. According to learned counsel, the clauses contained in the Lease Deed are statutory in nature. Therefore, under Article 2(e), extension of time for completion of construction can be granted only upon payment of additional premium at the prescribed rates which cannot be waived even by the MMRDA.

42. Dr. Saraf has further argued that the Petitioner had furnished undertakings promising to pay the amount of additional premium for the delay in completing the construction. Therefore, the Petitioner cannot now resile from such promise.

43. The learned Senior Counsel for the Respondents has also argued that the reliance placed by the Petitioner on the judgment in Raghuleela Builders Pvt. Ltd. & Anr. (Supra) is misplaced in as mush as the said decision was rendered in the peculiar facts of that case.

44. To sum up his arguments, Dr. Saraf has submitted that the Petitioners have approached this Court without disclosing material facts and producing the relevant documents. Since they have approached this court with unclean hands, hence, the Petitioners are not entitled to any relief from the court of equity. As such, the Writ Petition be dismissed.

45. In support of his above arguments, Dr. Saraf, has relied upon the following decisions:-

                   (a) State of Punjab and Ors. vs. Dhanjit Singh Sandhu((2014) 15 SCC 144.)

                   (b) Atur Park-4 Co operative Housing Society Ltd. vs State of Maharashtra(2023 SCC Online Bom 874.)

                   (c) State of Goa vs. Dr. Alvaro Alberto Mousinho((2019) 10 SCC 465.)

Plea regarding Maintainability of the Writ Petition :-

46. Insofar as the plea regarding maintainability of the Writ Petition is concerned, at the very outset, it deserves to be mentioned herein that although the maintainability of the Writ Petition has been questioned inter-alia on the ground that several disputed questions of facts are involved there-in, yet, after examining the record, we find that the material assertions made in the Writ Petition are all based on documents annexed thereto, which are admitted documents. Moreover, in view of the plea raised by the Petitioner that the action of the Respondent No. 1 in levying additional premium/penalty for the delay in completion of construction is not only contrary to the terms and conditions of the Lease Deed, but also, arbitrary and illegal and hence, in violation of the fundamental rights guaranteed to the Petitioner under Article 14 of the Constitution, we are of the view that the issues raised in the Writ Petition have an element of public law character.

47. In the case of Joshi Technologies International IBC vs. U.O.I. & Ors., the Hon’ble Supreme Court has observed that there is no absolute bar to the maintainability of a Writ Petition, even in contractual matters or where there are disputed questions of fact or even when monitory claim is raised, provided, the Court is called upon to examine the issue which has a public law character attached to it. Having regard to the core controversy involved in this proceeding and considering the fact that the issues involved in this Writ Petition would call for determination by this Court based on interpretation of the relevant Articles of the Lease Agreement as well as the documents exchanged by and between the parties so as to ascertain fairness in the action of the Respondent No 1, we are unable to agree with the stand of the Respondents that the Writ Petition ought to be dismissed on the ground that it raises disputed questions of facts.

48. Likewise, from a reading of Section 44 of the MMRDA, Act 1974, we find that the provision for Appeal provided thereunder, is available for disputes regarding recovery of money due to the authority as arrears of land revenue. Since the challenge made to the impugned demand notice is on the ground that the same is contrary to the terms of the Supplementary Lease Deed and hence, illegal and arbitrary as such, we are of the opinion that the said controversy cannot be effectively adjudicated in an Appeal filed under Section 44. Therefore, we reject the contention of the Respondents that the Petitioner has an effective and efficacious alternative remedy.

49. We also find that all material facts necessary for appreciating the controversy have been disclosed in the Writ Petition. Therefore, we are of the view that the Writ Petition cannot also be dismissed on account of suppression of material facts as well.

50. In so far as the grounds of delay and laches as well as the plea of the claim being barred by the Law of Limitations is concerned, save and except making a bald assertion on such count the Respondents have failed to mention as to on which date the cause of action for the petitioner to institute the proceeding had ceased and on what count. There is also no oral argument advanced to that effect.

51. In Banda Development Authority, Banda vs. Motilal Agarwal & Ors.((2011) 5 SCC 394.) the Hon’ble Supreme Court has observed that no limitation has been prescribed for filing a Writ Petition under Article 226 of the Constitution of India. However, the High Court will treat the delay in filing the Writ Petition as unreasonable, if the same is filed beyond the period of limitation prescribed for filing a Civil Suit for a similar cause. From the above, it would be apparent that although un-explained delay in instituting a Writ Petition could be a valid ground to decline relief to the Petitioner, yet, the law of Limitation would not have strict application in a Writ Petition.

52. There is no dispute in this case about the fact that the Respondent No. 1 is an instrumentality of the State and, therefore, would be an “other authority” within the meaning of Article 12 of the Constitution of India.

53. Law is well settled that arbitrariness in the decision making process of the State or its instrumentality is a facet of Article 14 of the Constitution of India. In E.P..Royappa v State of Tamil Nadu,((1974) 4 SCC 3.) it was pointed out that Article 14 would strike at arbitrariness in State action and ensure fairness and equality of treatment.

54. The present is not a proceeding simpliciter for enforcing a money claim but raises significant questions pertaining to the validity and fairness in the impugned action of the Respondent No 1, which are required to be adjudicated on the touch stone of Article 14. As such, we are of the considered opinion that such plea cannot be brushed aside merely on the ground of delay and laches, more so, since such delay has evidently not given rise to any parallel right of a third party.

55. In view of the foregoing discussions, we are of the view that the Writ Petition is maintainable in law as well as in the facts and circumstances of the case.

56. It would be further pertinent to note herein that in an earlier decision rendered by a co-ordinate Bench of this Court dated 20th November 2019 in Raghuleela Builders Pvt. Limited and Anr. vs. The Mumbai Metropolitan Regional Development Authority & Ors. (Supra) wherein, identical issues were involved, this Court had entertained the Writ Petition. In that case also the Petitioners had challenged a similar Demand Notice dated 12th September 2017 issued by the Respondent No.1, by invoking similar provisions of the Lease Deed as well as the Supplementary Lease Deed, demanding payment of a sum of Rs. 432 Crores as penalty for the delay in completion of construction of the building. That was also a case wherein, although the initial built up area was 30550 sq. meters, which was to be consumed by constructing 9 (nine) floors in the building, yet, subsequently, due to the increase in the FSI, the Respondent No.1 had allotted additional built up area of 67000 sq. meters to the Petitioner resulting in construction of 11 additional floors in the same building. Due to the addition in the built up area, the construction of the building could not be completed within four years, as stipulated in Article 2(d) of the original Lease Deed, as a result of which, Demand Notice dated 12th September 2017 was served for recovery of penalty/additional premium along with interest calculated thereon.

57. By the Judgment and Order dated 20th November 2019, in Raghuleela Builders Pvt. Ltd. & Anr. (Supra), the Division Bench had set aside the impugned Demand Notice dated 12th September 2017 by holding that such a demand was not maintainable in the eyes of law. That apart, it was also observed that in view of the change in policy of the MMRDA increasing the time limit for completion of the building “Fit for occupation”, from four years to six years, the demand for penalty/additional premium for delay in completion of construction within four years was ex-facie unreasonable, unjustified and discriminatory.

58. The Special Leave Petition (C) No. 6411 of 2020 preferred by the Respondent No.1 assailing the Judgment and Order dated 20th November 2019 was dismissed by the Hon’ble Supreme Court by the order dated 27th July 2020 after taking note of the findings recorded in paragraphs No. 38 and 40 of the Judgment and Order dated 20th November 2019. However, it was clarified that since the judgment of the Division Bench of the Bombay High Court was rendered in the facts of that case, hence, it cannot influence any other matter in this behalf. With the above observation the Special Leave Petition was dismissed.

59. In the order dated 27th July 2020 the Hon’ble Supreme Court, while dismissing the Special Leave to Appeal (C) No(s) 6411/2020, had observed as follows:-

                   “We are not inclined to exercise our jurisdiction under Article 136 of the Constitution of India in the given facts of the case and more so as reflected from paragraphs 38 and 40 of the impugned judgment.

                   Mr. K. K. Venugopal, learned Attorney General for India expresses some apprehension on account of there being other matters pending.

                   We clarify that the present matter is in the given facts of the case as stated aforesaid and thus, cannot be said to influence any other matter in this behalf.

                   The special leave petition is dismissed in terms aforesaid.

                   Pending applications shall also stand disposed of.”

60. It appears that the Respondent No. 1 had filed a Review Petition seeking review of the order dated 27th July 2020, which was also dismissed by the Hon’ble Supreme Court vide order dated 29th September 2020 passed in Review Petition (Civil) No. 1764 of 2020 arising out of SLP (C) No. 6411 of 2020.

61. From a plain reading of the decision rendered in Raghuleela Builders Pvt. Ltd. & Anr. (Supra) we are of the opinion that, even if the said decision is treated to have been rendered in the fact situation of that case, even then, we can take note of the legal principles emanating therefrom. In that view of the matter we are unable to agree with the submission of the learned Counsel for the Respondents that the decision in the case of Raghuleela Builders Pvt. Ltd. & Anr. (Supra) cannot be looked into by this Court even for the purpose of deciding the question of maintainability of the Writ Petition.

62. It is to be noted herein that the question of maintainability of a Writ Petition is a mixed question of law and facts. Therefore, such question would obviously have to be considered having due regard to the peculiar facts and circumstances of each case. Having regard to the facts and circumstances of this case and considering the fact that a similar Writ Petition, raising similar issues in Raghuleela Builders Pvt. Ltd. & Anr. (Supra) had earlier been entertained by this Court, for the sake of maintaining uniformity in judicial decisions, we are not inclined to non-suit the Writ Petitioner merely on the plea of maintainability as raised by the Respondents.

On Merits:-

63. During the Course of arguments, the learned Counsel for the Respondents has made it clear that the demand for additional penalty on account of delay in completing the construction had been raised by the Respondent No.1 in deference to Article 2(d) & (e) of the Lease Deed dated 1st September 2006 which is as per Form ‘D’ of Regulation No 10 of the Mumbai Metropolitan Region Development Authority (Disposal of Land) Regulations, 1977. Therefore, the question as to whether such a claim /demand of the Respondent No. 1 for payment of additional premium/ penalty on account of delay in completing the construction was maintainable in the eyes of law as well as in the facts and circumstances of the case would undoubtedly have to be answered by this court in the light of materials brought on record and by constructing the relevant clauses of the Lease Agreement. For the above purpose Articles 2 (d) and (e) of the Lease Deed dated 1st September 2006 would be relevant and therefore, the same are being reproduced herein-below for ready reference:-

                   “(d) Time limits for commencement and completion of construction work: That the Lessee shall within three months from the receipt of approval of its plans and specifications of building or buildings intended to be erected on the said plot of land, commence and within a period of four years from the date of this lease at his own expense and in a substantial and workman like manner and with the sound materials and in compliance with the said Development Control Regulations and Building Regulations and all Municipal Rules, bye-laws and Regulations applicable hereto and in strict accordance with the approved plans, elevations, sections, specifications and details as specified in the Section 5, 6 & 8 of the said RFP and the said allotment letter, to the satisfaction of the Metropolitan Commissioner and conforming to the Bandra- Kurla Complex Notified Area, Development Control Regulations, 1979 & all other relevant Rules, Regulations & Acts and further as provided in Section 5 of the said RFP and the said allotment letter, build and completely finish fit for occupation a (i) “Convention & Exhibition Centre” and (ii) “Commercial Complex”to be used as (i) “Convention & Exhibition Centre” and (ii) “Commercial Complex” with all requisite drains and other proper conveniences thereto.

                   PROVIDED THAT the construction of Convention and Exhibition Centre will be commenced before the commencement of construction of Commercial Complex and Occupation Certificate of Convention and Exhibition Centre (65000 sq. mtr. shall be obtained prior to the request for Occupation Certificate of Commercial Complex (50000 sq. mtr) as set out in the said RFP and the said allotment letter the Lessee shall scrupulously observe the approved Work Execution Plan (copy Whereof is set out in the SIXTH SCHEDULE hereunder written).

                   PROVIDED FURTHER THAT as set out in the said allotment letter, the Lessee shall submit the periodic progress report of the Convention and Exhibition Center say in the first week of every third month to the Metropolitan Commissioner, Mumbai Metropolitan Region Development Authority. The Evaluation Committee appointed by the Metropolitan Commissioner as referred in the Proviso to clause (a) hereinabove, will review the progress of the development of Convention Center report by the Lessee and submit its report to the Metropolitan Commissioner. The Evaluation Committee as indicated above will satisfy itself regarding the development of the Convention and Exhibition Center which has to be of international standards and if necessary the Evaluation Committee will make suggestions in that respect to the Metropolitan Commissioner and the Lessee shall incorporate changes so directed by the Metropolitan Commissioner.’

                   (e) Extension of time stipulated for construction of building or development of land:

                   (i) If the Lessee shall not perform and observe the limitations of the time mentioned in clause 2 (d) above for construction of the intended (i) “Convention & Exhibition Centre” on plot of land admeasuring 55000 sq. mtr. and (ii) “Commercial Complex” on plot of land admeasuring 20000 sq. mtr. or otherwise development of said plot of land leased to him for reasons beyond his control, the Metropolitan Commissioner may permit extension of such time on payment of additional premium at the following rates: