- (1.) The Petitioners herein have challenged the judgment and order of the High Court of Judicature at Bombay dated 11.2.2013 whereby the writ petition No. 1299/2012 filed by the Petitioners herein was dismissed by the Division Bench of the High Court since it refused to set aside the 'No Objection Certificate' granted in favour of the contesting Respondents by the Competent Authority under the Urban Land Ceiling Act, Greater Mumbai and further refused to set aside the orders dated 17th December, 2008 and 2nd November, 2010 passed by the Respondent No. 2-Municipal Corporation of Greater Mumbai restoring the 'Occupation Certificate' granted earlier in favour of Respondent No. 3 M/s. Wellworth Developers. The High Court vide its impugned judgment and order was pleased to hold that the Petitioners indulged in multiple and vexatious proceedings for challenging the order granting occupancy certificate to the Respondent No. 3 but the same did not deter them from filing a writ petition in the High Court which lacked merit and also suffered from delay and laches which led to the dismissal of the writ petition filed by the Petitioners herein.
(2.) The substantial question, therefore, which requires determination in this Special Leave petition in order to avoid gross miscarriage of justice affecting valuable rights of the contesting parties lies in a narrow compass which may be formulated as follows: Whether approval of the High Court to the grant of Occupancy Certificate by the Competent Authority contrary to the express terms and conditions in the Memorandum of Understanding affecting the valuable rights of all the stakeholders in the disputed property should not be treated as a perversity so as to invoke the jurisdiction under Article 136 of the Constitution As also: Whether the competent authority was not duty bound to examine the terms and conditions of the Memorandum of Understanding before granting Occupancy Certificate to the claimant-Respondent giving rise to a protracted litigation.
(3.) The factual background of the matter in so far as it is relevant for appreciating the controversy involved herein discloses that the Petitioner's predecessor i.e. the deceased (father of the Petitioner) Chandrarao Ganpatrao Kadam (referred to as Mr. CG Kadam) entered into a Memorandum of Understanding (for short 'MOU') dated 7.10.1992 with the Respondent Nos. 4, 5 and 6 who constituted partnership firm M/s. Wellworth Developers being Respondent No. 3 hereto. The deceased predecessor of the Petitioner Late Mr. CG Kadam admittedly owned a large tract of land comprising an area admeasuring 42,669.40 sq. mtrs. bearing CTS No. 47 and 47/1 to 47/20 of village Chandivali, Mumbai and CTS Nos. 17 and 18 of village Saki, Mumbai. As per the terms of MOU, the deceased Mr. CG Kadam (predecessor of the Petitioners herein) and Respondent Nos. 4, 5 and 6 as already stated formed a partnership firm subject to certain terms and conditions in view of which the deceased was to bring in the said plot of land for a total consideration of Rs. 2.40 crores which the deceased Mr. CG Kadam was to receive in installments. Pursuant of the MOU, the Respondent No. 3 to 6 were entitled to development and construction on a part of the plot of land measuring 21766 sq. mtrs. described in the second schedule to the MOU and another part of the said plot of land admeasuring 20903 sq. mtrs. which the Petitioners referred as their retained portion was to be leased for a period of 999 years constituting lease in perpetuity by Respondent No. 3 in favour of the deceased Mr. Kadam with the Floor Space Index (FSI) measuring 37,865 sq. feet specified on the said portion for the use of the deceased Mr. Kadam. The structures existing on the retained portion continued to exist even today as per the Petitioners' case who are the legal heirs of late CG Kadam and are running a film studio for shooting purposes on the retained portion but have wrongly and illegally been shown as demolished by the Respondent No. 3-developer while obtaining occupancy certificate for the plot.;