The main legal point established in the judgment is that delay in challenging sanctioned plans and raising grievances for the first time can lead to the dismissal of a petition, and permissions granted in accordance with the law are upheld.

Anoop V. Mohta, J.

1. The petitioner, a Co-operative Housing Society, which had entered into an agreement in the year 1996 with the land owner and respondent No. 5, a builder/ developer, for construction of buildings between Wings A and B of the land bearing CTS/610 District Mumbai Sub-urban, has, after termination of the said agreement in 2009, challenged second excavation permission dated 23 October, 2012 issued by respondents 1, 2 and 4, as per Rule 18 of Bombay Minor Mineral Extraction Rules, 1955 and Section 21 of the Mines and Mineral (Development and Regulation) Act, 1957, in favour of the builder.

2. The petitioner has filed present petition on 1 November, 2012. On 6 November, 2012, this Court issued notices to respondents and further directed respondent No. 5, not to proceed with the construction, if any, on the land in question, keeping in mind the steps as per Regulation 2(1)(a) and Regulation 43 of the Development Control Regulation for City of Greater Mumbai, 1991 (for short, DCR). The respondents/Corporation was also directed to place on record the minimum open space which is required between the petitioners property and the disputed construction. The Sub-Divisional Officer, Mumbai has filed reply dated 5 December, 2012 opposing the prayers. The Assistant Engineer, R Ward resisted the averments in all respects by affidavit dated 3 December, 2012. The respondent No. 5/builder has filed its reply with documents on 23 November, 2012. The matter was listed for admission/hearing on 6 December, 2012 and heard finally by consent.

3. Admittedly, the petitioner had challenged the Sanctioned Plan of the builder in the year 2002 by writ petitions. Those petitions were disposed of by two different orders. The petitioner was permitted to raise objections with regard to the sanctioned plans. By another order, as prayed, the Court permitted the petitioner to be heard before sanctioning the plan, basically the construction of basement. A criminal complaint is filed against the builder by the petitioner some time in 2011 for damaging the compound wall. The petitioner also filed consumer complaints against the builder in January, 2012. All these matters are pending.

4. The contesting respondents by their affidavits placed on record the material to show that the allegations of alleged illegality of granting permission to quarry and/or the threat to life and property of residents living in the adjacent flats because of piling work of the builder, are not correct. They denied all the charges/averments so made by the petitioner against them.

5. There is no denial to the fact that the respondent/builder, pursuance to the permissions, completed all the work. The basement has been filled in. The statement is made in the affidavit that micro filling work has been completed. The concerned Sanctioning Authority has confirmed that in 2003 pursuance to the direction given by the High Court, after giving hearing and by passing reasoned order, the builders plans were approved as per the DCR in consonance with the policies. Those orders were never challenged by the petitioner at any point of time. The respondents have also averred that they have already filled up the basement long before. The plinth of the proposed building is nearing completion. The proposed building plans were approved on 7 July, 2010. They have received c.c. (commencement certificate) up to the plinth level on 22 July, 2010.

6. As directed, the concerned Authority s officers have filed the affidavit by giving details and asserted that as there was deficiency of 0.91 meter i.e. 9.94% and 9.68% with regard to the joint open space in question, they condoned the deficiency as per DCR 64(B) and granted the sanction accordingly. It is further made clear that as the approved building under reference is within 24 meters height and the same is not a multi-storied and high rise building.

7. It is also clear from the affidavit filed by the Sub-Divisional Officer, who granted the perm