Case Note & Summary
The petitioners, Sanjay Phulwaria and others, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging the part occupation certificate dated 8 June 2017 granted by the Mumbai Metropolitan Region Development Authority (MMRDA) to respondent no.5, the developer of the housing project 'Lodha New Cuffe Parade' at Wadala, Mumbai. The petitioners claimed to be purchasers of flats in the project and alleged that the building height exceeded the permissible and approved height, amounting to an illegality. They also contended that the developer had undertaken demolition of upper floors to bring the construction to permissible height, causing damage to lower floors. The petitioners sought quashing of the part occupation certificate and the commencement certificate, or alternatively, revocation of the part occupation certificate. The respondents, including MMRDA, the Municipal Corporation of Greater Mumbai (MCGM), and the developer, opposed the petition on the ground of maintainability, arguing that the petitioners had an alternative remedy under the Real Estate (Regulation and Development) Act, 2016 (RERA) before the Real Estate Regulatory Authority. The court, after hearing arguments, held that the writ petition was not maintainable as the petitioners had an efficacious alternative remedy under RERA. The court observed that the petitioners, as flat purchasers, could not seek revocation of the occupation certificate as they were not the planning authority and had no vested right to challenge the certificate. The court further noted that the grievance regarding demolition causing damage to lower floors was a matter of contract between the petitioners and the developer, which could be adjudicated by RERA or a civil court. The court dismissed the petition, leaving it open to the petitioners to avail of the alternative remedy under RERA or any other appropriate forum. The court also disposed of the chamber summons for intervention.
Headnote
A) Constitutional Law - Writ Jurisdiction - Alternative Remedy - Maintainability of Writ Petition under Article 226 - Petitioners, flat purchasers, challenged part occupation certificate granted by MMRDA alleging building height violation - Court held that writ petition is not maintainable as petitioners have efficacious alternative remedy under Section 79 of the Real Estate (Regulation and Development) Act, 2016 (RERA) before the Real Estate Regulatory Authority - Held that the existence of alternative remedy is a bar to the exercise of writ jurisdiction unless exceptional circumstances exist (Paras 10-15). B) Real Estate Law - Occupation Certificate - Challenge by Flat Purchasers - Petitioners sought quashing of part occupation certificate on ground of unauthorized construction - Court held that flat purchasers cannot seek revocation of occupation certificate as they are not the planning authority and have no vested right to challenge the certificate - Held that the remedy lies before RERA or civil court for breach of contract, not by way of writ petition (Paras 16-20). C) Planning Law - Unauthorized Construction - Part Occupation Certificate - Alleged excess height of building - Court observed that the planning authority (MMRDA) had granted part occupation certificate after due consideration and that the petitioners' grievance regarding demolition causing damage to lower floors is a matter of contract between the petitioners and the developer - Held that the writ court cannot interfere with the planning authority's decision in the absence of mala fides or perversity (Paras 21-25).
Issue of Consideration
Whether the petitioners, who are purchasers of flats in a housing project, can maintain a writ petition under Article 226 of the Constitution of India challenging the part occupation certificate granted by the planning authority on the ground that the building height exceeds the permissible limit, and whether such a petition is maintainable in view of the alternative remedy available under the Real Estate (Regulation and Development) Act, 2016 (RERA).
Final Decision
The Bombay High Court dismissed the writ petition, holding that it is not maintainable as the petitioners have an efficacious alternative remedy under the Real Estate (Regulation and Development) Act, 2016 (RERA). The court left it open to the petitioners to avail of the remedy under RERA or any other appropriate forum. The chamber summons for intervention was also disposed of.
Law Points
- Alternative remedy
- maintainability of writ petition under Article 226
- jurisdiction of RERA
- challenge to occupation certificate by flat purchasers
- unauthorized construction
- part occupation certificate
- planning authority's discretion
