Case Note & Summary
The petitioner, Rustomjee Realty Private Limited, a company incorporated under the Companies Act, 1956, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court. The petitioner challenged an order dated 18 September 2019 passed by the Executing Engineer, Building Permission Department, B.M., MHADA (Maharashtra Housing and Area Development Authority). The order refused to grant a subsequent commencement certificate for construction, citing an assurance given by the Minister of Housing that building permission for the project was suspended. The petitioner had previously obtained various permissions from MHADA for constructing buildings, some of which were already constructed. The petitioner applied for a further commencement certificate, which was refused based on the ministerial assurance. The respondents included MHADA, the Mumbai Housing and Area Development Board, and New D.N.Nagar Co-operative Housing Societies Union Limited. The court considered whether the refusal was legally valid. The petitioner argued that the order was without authority of law, as the Minister's assurance could not override statutory provisions. The respondents did not seriously contest the matter. The court held that the impugned order was not sustainable and quashed it, directing MHADA to consider the petitioner's application for a subsequent commencement certificate afresh in accordance with law, without being influenced by the ministerial assurance. The court also directed that the application be decided within two weeks from the date of the order. The petition was disposed of accordingly.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of the Constitution of India - Refusal of Commencement Certificate - The petitioner challenged the order of the Executing Engineer refusing subsequent sanction for commencement certificate based on a ministerial assurance. The court held that the order was without any authority of law and could not be sustained. (Paras 3-5) B) Housing Law - Statutory Permissions - Maharashtra Housing and Area Development Act, 1976 - Suspension of Building Permission - The Executing Engineer refused the certificate on the ground that the Minister of Housing had assured suspension of building permission. The court held that such an assurance cannot override statutory provisions and the order was quashed. (Paras 4-5) C) Administrative Law - Executive Orders - Binding Nature - Ministerial Assurance - The court held that an assurance given by a Minister cannot be a valid ground to refuse a statutory permission unless backed by law. The impugned order was set aside. (Para 5)
Issue of Consideration
Whether the Executing Engineer of MHADA could refuse to grant a subsequent commencement certificate based on an assurance given by the Minister of Housing, and whether such refusal was legally sustainable under the Maharashtra Housing and Area Development Act, 1976.
Final Decision
The impugned order dated 18 September 2019 is quashed and set aside. The respondents are directed to consider the petitioner's application for a subsequent commencement certificate afresh in accordance with law, without being influenced by the assurance given by the Minister of Housing. The application shall be decided within two weeks from the date of the order. Rule is made absolute accordingly. No order as to costs.
Law Points
- Article 226 of the Constitution of India
- Maharashtra Housing and Area Development Act
- 1976
- Executive authority cannot override statutory provisions
- Ministerial assurance cannot suspend statutory permissions
- Right to carry on construction under valid permissions
