IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL WRIT PETITION NO. 5052 OF 2008 WRIT PETITION NO. 5052 OF 2008 WRIT PETITION NO. 5052 OF 2008 1. Mandke Construction Company & ors. ] .. Petitioners Versus 1. The State of Maharashtra & 2 ors. ] .. Respondents Mr. G.S. Godbole i/b Mr. Nitin Mulye for the petitioners. Mr. V.S. Gokhale, AGP, for the respondents No.1 to 3. CORAM: CORAM: CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & D.B. D.B. D.B. BHOSALE, JJ. BHOSALE, JJ. BHOSALE, JJ. DATED: DATED: DATED: 27TH JANUARY, 2009 27TH JANUARY, 2009 27TH JANUARY, 2009 P.C. : 1. Heard learned counsel. 2. By an order dated 13th October, 1987, the petitioners were granted exemption under section 20 of the Urban Land (Ceiling & Regulation) Act, 1976. As per the conditions of exemption order, the petitioners were expected to construct 215 tenements out of which the petitioner was asked to hand over 47 tenements to the Government nominees. Out of total nine schemes sanctioned to the petitioners, the petitioners have completed construction of eight schemes and handed over : 2 : 32 tenements to the Government nominees. Therefore, 15 tenements are yet to be handed over by the petitioners after completing the said nine schemes. Though, in the meanwhile the said Act has been repealed, however, the schemes framed under section 20 of the said Act have been protected by the Repeal Act, 1999. 3. Mr. G.S. Godbole, learned counsel for the petitioners submitted that as per the Supreme Court judgment delivered in the case of Shantistar Builders Shantistar Builders Shantistar Builders vs. vs. vs. Narayan Khimalal Totame & ors. Narayan Khimalal Totame & ors. Narayan Khimalal Totame & ors., the Government cannot ask more than 5% reservation for the weaker section and, therefore, the grievance is that the demand of the Government in excess of 5% of the total construction is illegal and it should be brought in consonance with the said judgment which is reported in 1990 1990 1990 (1) SCC 520 (1) SCC 520 (1) SCC 520. 4. We do not find any merit in the submission of the learned counsel for the petitioners. Firstly, the scheme has been sanctioned in October, 1987 and on that basis, the petitioners have proceeded to construct. Not only that, but part possession has been handed over. If the petitioners were aggrieved by the said order, the petitioners should have come to this court in 1987 itself. However, the petitioners acquiesced the said : 3 : order and proceeded for construction and development of the schemes. Then, there is another aspect that in the year 1990, when the judgment was delivered, the petitioners ought to have approached this court. However, from 1990 upto 2008, the petitioners have not approached this court. The petitioners are thus under an obligation to explain the delay and latches from 1987 to 1990 and from 1990 to 2008. Therefore, the petition suffers from gross delay and latches which are not explained anywhere in the Petition. Apart from that, after the said judgment it appears that the Government has issued a Resolution on 15th October, 1997 stating that the said judgment will apply prospectively. Therefore, the case of the petitioners is not covered by the said Government Resolution and/or the reported judgment. The grievance of the petitioners is that it is none of the business of the Government to state that the Supreme Court judgment will operate prospectively, but it is for the Supreme Court to state whether the judgment is to operate either prospectively or retrospectively. 5. We do not find any merit in such submission also because it is well settled principle that all judgments either delivered by this court and/or by the Apex Court are prospective in application unless they : 4 : are specifically made retrospective and/or retroactive by the court concerned. Therefore, what we find is that in the absence of any direction by the Apex Court, the judgment referred to supra is prospective in application irrespective of the Government Resolution dated 15th October, 1997. Therefore, ultimately either by relying on the Government Resolution referred to above and/or applying the principle that the judgment is prospectively applicable, we do not find any merit in the submission of the learned counsel. 6. The Petition deserves to be rejected and it is, accordingly, rejected. Sd/- Sd/- [D.B. [D.B. [D.B. BHOSALE, J.] BHOSALE, J.] BHOSALE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]