The court ruled that the refusal to grant an Occupancy Certificate by CIDCO was arbitrary and unconstitutional, affirming the right of the petitioner society to admit an additional member under applicable regulations.

Judgment :

(G. S. Kulkarni, J.)

1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally.

2. This petition under Article 226 of the Constitution of India, in our opinion, is a gross case, of not only a glaringly unreasonable and arbitrary approach on the part of respondent No.2, City and Development Corporation of Maharashtra Limited ( for short "CIDCO") but also quite high-handed, when it withheld for almost six years an “Occupancy Certificate” to the building constructed for the benefit of the members of petitioner No. 1/ the Dolphin Co-operative Housing Society Limited. The construction of such building as per the certificate of the Architect was Kiran Kawre completed on 11 July 2018 and till date, the Occupancy Certificate has been withheld, keeping away, the eighteen members of the society, who are persons of limited means, from their abode / residential units from being occupied. The ordeal of the petitioners as set out in the petition and the mechanical approach of the officers of the CIDCO would in fact shock the conscience of the Court.

3. Seventeen persons (member of the petitioner No.1 / Society) on 10 August 2001 applied to the CIDCO for allotment of a plot on a long term lease as per the policy of the CIDCO for construction of a residential building. Their application was successful. An allotment letter dated 14 May 2015 was issued in favour of the Chief Promoter of the petitioner No.1 (then a proposed society), allotting plot No. 59/C, situated at Sector 21, Kharghar, New Mumbai, admeasuring 499.87 sq. meter. An Agreement to Lease was to be entered, as per the terms and conditions after the amount of lease premium was paid to the CIDCO and after a co-operative housing society of these persons registered under the provisions of Maharashtra Co-operative Societies Act, 1960, (for short "the MCS Act"). Also a list of seventeen members duly approved by the CIDCO was annexed to the allotment letter as “Annexure – A”. The relevant contents of the allotment letter are required to be noted which reads thus :

"4. A list of members duly approved by the Corporation is annexed hereto as Annexure -A. These promoters will be the applicants for getting the Society registered.

5. On getting the society registered under the provisions of Maharashtra Co-operative Societies Act, 960 with members whose names are mentioned in Annexure -A, the Society will execute an Agreement to lease with Corporation within a period of 15 days from the date of such registration."

4. Accordingly, petitioner No.1 / society was registered on 2 June 2015, and to that effect a Certificate of Registration was issued by the Assistant Registrar, Co-operative Housing Societies. As per the terms and conditions of the allotment letter, an Agreement to Lease (not a final lease deed) was entered between the CIDCO and the petitioner on 9 June 2015. Under the Agreement to Lease, the petitioner was entitled to use “One FSI”, equivalent to permissible construction of 499.506 sq. mtr.

5. It appears to be not in dispute that the FSI which was available was commensurate to construct tenements, not only for the existing seventeen members, but for one additional tenement, that is total eighteen tenements/units each admeasuring 355 sq. ft. carpet. To undertake construction, petitioner No.1 appointed petitioner No.2 / Developer. The construction plans were submitted to the CIDCO, it being the Planning Authority. On 15 January 2016, the Senior Planner (Building Permission) of the CIDCO issued a Commencement Certificate for construction of "eighteen residential units" of a building consisting of stilt plus six floors with FSI of 499.506 sq. mtr. Accordingly, the building which was approved to be constructed was to house eighteen residential units as per the said Commencement Certificate issued by the CIDCO.

6. The case of the petitioner is that as eighteen residential units were permitted to be constructed, considering the financial constraints on the seventee