Mohta project illegality cannot be ‘mitigated’
The Statesman | 2 September 2025The project was promoted by Sushil Mohta (photo above) of the Merlin group along with Pradeep Sureka (photo right) of the Sureka group and Prakash Bachhawat (photo far right) of the JB group. The Division Bench of Mr Justice Rajasekhar Mantha and Mr Justice Ajay Kumar Gupta rejected all arguments advanced by the promoter of “mitigating circumstances” to stop demolition of the tower.
Mr Abhrajit Mitra, Senior Advocate , had presented three such circumstances – first, that a long period of time had elapsed, that money had been invested and rights (of purchasers in the 16th tower) had been created; second, that the 16th tower had a sanction plan and its structural validity was unchallenged, and third, that the sale agreements enabled the promoter to make further constructions without the consent of the existing flat owners.
Dealing with the first factor cited by Mr Mitra, the court held: “The first circumstance cannot be termed as mitigating, given the dicta of the Supreme Court… where it was held that inaction over a passage of time does not legitimize an illegal construction.” In respect of the second factor, the court held : “ Whether the second circumstance qualifies as mitigating one has to be considered with reference to the reduction of the undivided share of the flat owners of the 15 towers, and a consequent violation of the right under Art 300A of the Constitution, and not with reference to the structural validity of tower no.16.
Article 300A enables the State to deprive a person of his property, provided that the State is authorised by a statute in that regard. The NKDA Act does not e m power the NKDA to deprive a person of his land by allowing a promoter to make construction thereon.” Further, it said: “The grant o f are vised plan for construction on land, not owned by the applicant, without the consent of the original owners thereof, amounts to the acquisition of the land without notifying the original owners… The flat owners of the 15 Towers have Article 300A in their favour, whereas the flat owners of the 16th tower have no such right since the 16th tower was illegally built on muscle power. The only refuge of the flat owners of the 16th tower is the equity.
Unfortunately, equity cannot be invoked against a gross statutory illegality. Equity cannot be taken advantage of by the people who have used their muscle power to build the 16th tower.” Dealing with the third, the Court held: “The third circumstance cannot also be accepted as a mitigating circumstance given the dicta of the Supreme Court in Jayantilal Investments where it was held that the Promoter is bound to disclose to the intending purchaser about the entire project, and in the present case the promoter did not notify the flat owners of the 15 towers that there will be a 16th tower.
Further, the said circumstance cannot ensure to any benefit to the promoter and flat owners of the 16th tower.” The court held that the transfer by the promoter to the original flat owners could not be made conditional, and the clauses in the agreement permitting additional construction violated both the Transfer of Property Act as well as the Contract Act. The court took “serious exception” to an argument advanced by the promoter to justify reduction in the undivided share of the open area, by saying that there had been an addition in the common facilities provided to residents.
This justification, the court held “seeks to bargain undivided share in the land by an increase in the common facilities. The flat owners of the 15 towers have lost their undivided share in the land. Instead, they have not been provided any land, but an increase in the number of common facilities, which cannot compensate for the reduction of their share in the land and particularly in the open common areas.”
