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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1385 OF 2012
Manish Estates Pvt. Ltd. ]
A Private Ltd. Company, incorporated under ]
the provisions of Companies Act, 1956, and ]
having its registered office at 401, Kshamalaya, ]
37, New Marine Lines, Mumbai - 400 020. ] .. Petitioners
V/s.
1. Municipal Corporation of Greater Mumbai, ]
A statutory Corporation duly constituted ]
under the provisions of Mumbai Municipal
ig ]
Corporation Act, 1888 and having its Head office ]
at Mahapalika Bhavan, Mahapalika Marg, ]
Fort, Mumbai - 400 001. ]
]
2. Deputy Chief Engineer (City) ]
Building Proposals, Brihanmumbai Mahanagar ]
Palika, "E" Ward Office, 10 Sheikh Hafisuddin ]
Marg, Byculla, Mumbai - 400 008. ]
]
3. The Assistant Commissioner (Estates) ]
of Mumbai Municipal Corporation, having ]
its office at Chatrapati Shivaji Maharaj Mande ]
Palton Road, Mata Ramabai Ambedkar Marg, ]
Mumbai - 400 001. ]
]
4. M/s. Hindalco Industries Ltd. ]
A company incorporated under the ]
Companies Act, 1956, and having their office ]
at Aditya Birla Centre, S.K. Ahire Marg, ]
Worli, Mumbai - 400 018. ]
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5. M/s. Grasim Industries Ltd. ]
A company incorporated under the ]
Companies Act, 1956, and having their office ]
at Aditya Birla Centre, S.K. Ahire Marg, ]
Worli, Mumbai - 400 018. ] .. Respondents
...........
Mr. Vijay Hansaria, Sr. Advocate with Mr. Bipin Joshi, Mr. Sanjay Sarin and
Mr. Gobinda C. Mohanty for the petitioners
Mr. S.U. Kamdar, Sr. Advocate a/w. Trupti Puranik for the respondent nos.
1 to 3.
Mr. Edul P. Bharucha, Sr. Advocate, Mr. J.J. Bhatt, Sr. Advocate a/w. Mr.
Sunil Tilokchandani, Adv. Ms. Subhasree Chatterjee i/b Manilal Kher
Ambalal & Company for the respondent nos. 4 and 5.
ig ........
CORAM : A.M. KHANWILKAR &
R.Y.GANOO, JJ.
JUDGMENT RESERVED ON : 30th OCTOBER, 2012.
JUDGMENT PRONOUNCED ON : 6th DECEMBER, 2012.
JUDGMENT : (Per R.Y. Ganoo, J.)
1. Heard learned Counsel on both sides.
2. Rule. Rule is made returnable forthwith, by consent.
3. Learned Senior Counsel Mr. S.U. Kamdar waives service on behalf of respondent nos. 1 to 3. Mr. E.P. Bharucha, learned Senior Counsel waives service on behalf of respondent nos. 4 and 5. By consent, petition is taken U.S.Jagtap 2 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc up for final hearing and disposal.
4. By this petition, the petitioners are challenging following orders :-
(a) Order dated 6th October, 2010 passed by Deputy Chief Engineer (Building and Proposal) City Department vide EB/4570/GS/A.
(b) Order passed by respondent no.1. Municipal Corporation of Greater Mumbai (For short said Corporation) bearing No. AC/Estate/26537/Makta-3/25 dated 25th March, 2011.
(c) Resolution No.29, dated 4th May, 2011 passed by Improvement Committee, which Resolution has been confirmed by the Corporation by Resolution No.113 dated 30th May, 2001.
(d) NOC granted by respondent no.3 in favour of respondent nos.
4 and 5 by letter bearing No.AC/7/4629/Makta-3 dated 10 th June, 2011 for amalgamation of Plot No.216 and 216A.
(e) Order dated 9th May, 2012 passed by Deputy Municipal Commissioner (Improvement).
5. Few facts necessary for the disposal of this petition are as under.
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6. Respondent no.1 is the owner of Plot No. 216 equivalent to CTS No.4/1629, admeasuring about 8000 sq. yards. at Dr. Annie Besant Road, Lower Parel Division, Worli, Mumbai - 400 025. Respondent nos. 4 and 5 are the lessees in respect of Plot no.216, more particularly set out in City Survey extract, which is at page 106 of the petition. There exists another Plot of land bearing Plot No.216A equivalent to CTS No.5/1629, admeasuring 7202 sq. yard at Dr. Annie Basent Road, Lower Parel Division, Worli, Mumbai - 400 025. It is a common ground that Plot no.216 and Plot no.216A are adjacent to each other. Respondent no.1 had originally leased out this Plot no.216A to Mr. Shantaram Mahadeo Dahanukar and Dinkar Namdeo Dahanukar. Said Mr. Shantaram Mahadeo Dahanukar and Dinkar Namdeo Dahanukar on 29th September, 1972 assigned the lease hold interest held by them in favour of the petitioners in regard to the entire Plot of land bearing no. 216A. That is how, the names of the petitioners appeared in the City Survey record. Accordingly, entries were made in City Survey record. A copy of relevant City Survey extract is at page 106 of the petition. The petitioners were enjoying the said property bearing No.216A. It is noticed that 3 theaters by name Satyam, Shivam and Sachinam stood constructed on part of Plot no.216A. On the rest of the property, a building came to be constructed; by name, Manish Commercial U.S.Jagtap 4 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc Centre. The area covered by the 3 theaters was about 39,986 sq.ft.
Between the 3 theaters and the building Manish Commercial Centre, there existed a wall to divide the two buildings.
7. It is admitted by the petitioners that in original Application No.1347/2000 filed in Debt Recovery Tribunal-I at Mumbai a decree came to be passed against the petitioners. It is noticed that Recovery proceeding No.466 of 2003 was initiated against the petitioners. In the said recovery proceeding, the portion of land bearing no.216A was put up for sale. The said portion was the land below the 3 theaters Satyam, Shivam and Sachinam admeasuring 39,986 sq.ft. + basement and land appurtenant thereto. The said Sale Notice specifically excluded the property "Manish Commercial Centre Building" and the land appurtenant thereto admeasuring approximately built up area of 48,750 sq.ft. occupied by Manish Commercial Centre. Respondent nos. 4 and 5 were successful bidders. They secured the said property put up for sale jointly.
Respondent no.4 and 5 acquired leasehold interest of petitioners to the extent of property described in Sale Notice. Two sale Certificates each dated 23rd March, 2005 came to be issued. The property, which came to be sold in auction as mentioned aforesaid has been specifically described in U.S.Jagtap 5 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc the Certificates of Sale and the description of the said property is as under.
"50% of the undivided share of the immovable property of land bearing Plot No.216A, Dr. Annie Besant Road, CTS No.5/1629, Lower Parel Division, Worli, Mumbai alongwith structures thereon including 3 theaters Satyam, Sachinam and Sundaram containing built-up area of approx. 39,986 sq.ft. plus basement excluding the Manish Commercial Centre Building and the land appurtenant thereto admeasuring approximately built up area of 48,750 sq.ft. occupied by the said Manish Commercial Centre Building owned by Manish Commercial Estate."
Given under my hand and seal at Mumbai on this 23 rd March, 2005."
8. Respondent nos. 4 and 5 after securing the property as aforesaid, applied to the respondent no.1 for sub-division of Plot no.216A as they had leasehold rights in respect of the property specified in the Sale Certificates.
The said request for sub-division was rejected by respondent no.1.
9. The respondent nos. 4 and 5 thereafter submitted plans under file No.EB/4570/GS/A for redevelopment of the land covered by the 3 theaters and thereafter demolished the existing 3 theaters. The petitioners learnt that respondent nos. 4 and 5 were not leaving compulsory open space between Manish Commercial Centre and the proposed building of respondent nos. 4 and 5.
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10. The Manish Commercial premises Co-operative Society (For short said Society) filed Writ Petition No.2596 of 2010 so as to challenge the construction, which was proposed by respondent nos. 4 and 5 adjacent to their building on balance portion of Plot no.216A. In the said Writ Petition, respondent no.1 Corporation agreed to examine the application given by Manish Commercial Premises Co-operative Society Ltd. about the alleged illegal construction carried out by respondent nos. 4 and 5 and agreed to communicate its decision to said Society. Consequently, Writ Petition No.2596 of 2010 was disposed of.
11. The grievance of the said Society was considered by the Deputy Chief Engineer (B.P.) City. After hearing concerned parties by order dated 9 th March, 2011, he rejected the stand taken by the said Society. He by the said order held that plans sanctioned by the Corporation were in accordance with D.C. Regulations, directives and notifications in force.
12. Being aggrieved by the said order dated 9 th March, 2011, the present petitioners and the said Society filed Writ Petition No.799 of 2011 in this Court. The said petition was disposed of by order dated 25 th July, 2011 on account of sanction of the modified building plans. The petition was U.S.Jagtap 7 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc rendered infructuous and was accordingly disposed of.
13. The respondent nos. 4 and 5 in September, 2010 applied for amalgamation of Plot no.216 and 216A by making representation to the Corporation that respondent nos. 4 and 5 are entitled to the Plot no.216 and 216A and that they are entitled to carry out construction on the said Plots. It was represented to the Corporation that on account of purchase of the land as per the auction sale, respondent nos. 4 and 5 are entitled to call themselves as persons having right to enjoy the said Plots bearing no.216A. The proposal of respondent nos. 4 and 5 for amalgamation of Plot nos. 216 and 216A was processed by the Corporation. The said proposal was approved of by the Corporation by letter / order No.EB/4670/GS/A dated 6th October, 2010. The Corporation had passed the plan for construction on the land as would form after amalgamation of Plot no.216 and 216A. The Corporation had also addressed a letter No.AC/Estate/4629/Contract-3 dated 10/6/2011 to architects of respondent nos. 4 and 5 concerning amalgamation of Plot nos. 216 and 216A.
14. According to the petitioners, in May, 2011 the petitioners came to U.S.Jagtap 8 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc know about the aforesaid order of amalgamation of Plot nos. 216 and 216A. The petitioners after collecting the necessary documents, filed Writ Petition (L) No.2498 of 2011 in this Court so as to challenge the order of amalgamation of Plot Nos. 216 and 216A and such other Resolutions / letters passed by the Corporation or its committees.
15. The said petition was disposed of on 13 th February, 2012 in terms of Minutes of Order dated 13th February, 2012. The text of minutes of order are as follows.
"1. The challenge made by the petitioners to the decisions of the Municipal Corporation.
(i) to approve amalgamation of Plot No.216A and Plot No.216 as set out in Municipal Commissioner letter dated 25.03.2011 and other documents (Exh.I to Exh.R)
(ii) proposing to execute fresh Joint Lease Deed; and
2. The Municipal Commissioner of Greater Mumbai or an officer appointed shall decide the aforesaid questions raised in the Writ Petition after affording an opportunity of being heard to the petitioners and all other concerned / interest persons including the respondents herein.
3.The petitioner and respondents shall be at liberty to file further documents before the Commissioner within two weeks from today.
4.The Commissioner shall hear the matter and take decision thereupon within a period of 8 weeks from today.
5.All contentions of all the parties are kept open and the Municipal Commissioner shall decide the matter independently without being influenced by this order.
6.Liberty to the parties to adopt appropriate proceedings after the decision of the Commissioner if necessary.
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7.The Interim order passed by this Court dated 02.12.2011 shall continue to operate till the Municipal Commissioner takes a decision as aforesaid and for a period of 8 weeks from the date of communication of the order to the petitioners.
8.The Writ Petition stands disposed off."
16. On account of order dated 13th February, 2012, the petitioners addressed a detailed representation to the Corporation being representation dated 7th March, 2012. Thereafter, the Deputy Municipal Commissioner (Improvement) heard the representatives of the petitioners as well as the representatives of respondent nos. 4 and 5. Said Deputy Municipal Commissioner (Improvement) passed an order dated 9 th May, 2012. The said order was communicated to the petitioners' advocate by forwarding letter dated 9th May, 2012. Said letter was sent by the Legal Department of the Corporation. The Deputy Municipal Commissioner (Improvement), came to the conclusion that the plans for amalgamation have been approved and commencement Certificate has been issued and the work is in progress. He came to the conclusion that the question-which he was supposed to decide involves questions of title and that such a dispute is required to be adjudicated by a Civil Court. He, therefore, directed the petitioners as well as respondent nos. 4 and 5 to approach Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights. The operative part of the order dated 9th May, 2012 is as follows.
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"Both parties i.e. petitioners and respondents Nos. 4 and 5 are directed to approach Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights."
17. Being aggrieved by this order dated 9 th May, 2012, the order dated 6th October, 2010 and other resolutions passed by the Corporation and / or its various Authorities, the petitioners have filed this petition for the reliefs mentioned aforesaid.
18. Parties herein have filed their respective affidavits. Learned Senior Counsel Mr. Vijay Hansaria appearing on behalf of the petitioners took us through the entire record so as to point out the various documents concerning Plot no.216 and 216A. Learned Senior Counsel Mr. Hansaria appearing on behalf of the petitioners submitted that entire Plot no.216A was held by the petitioners as a lessee on account of assignment of the lease in respect of the said Plot of land in their favour by Mr. S.M.
Dahanukar and Mr. D.N. Dahanukar. He further pointed out that a suit was filed by Manish Commercial Premises Co-operative Society earlier referred to as the said Society against the petitioners on the original side of this Court being Suit No.1927 of 1984. In the said suit, the said society had prayed that the petitioners be ordered to specifically perform the U.S.Jagtap 11 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc agreement for sale executed between the petitioners and the purchasers of basement, ground floor and office and other premises on the upper premises of the building Manish Commercial Centre as per proforma agreement annexed to the plaint by executing the sub-lease for a term of 99 years in respect of the portion of the land, forming part of the Plot bearing no.216A. He further pointed out that in the said suit, a consent decree came to be passed on 17th December, 1984 and the petitioners agreed to convey to the said society building known as Manish Commercial Centre.
He further pointed out that the said decree was to operate as a conveyance in respect of the portion of Plot bearing no.216A on which the building Manish Commercial Centre was standing and the said lease was to be for 99 years and could be renewed for a further period of 99 years. Our attention was drawn to the decree dated 17 th December, 1984 where it was provided that save and except the land, which was referred to as sub-
divided land, said society had no interest in the land in the other portion of Plot bearing no.216A. Learned Senior Counsel Mr. Hansaria submitted that the other portion of the land was the one which was covered by the 3 theaters and the land appurtenant thereto. Learned Senior Counsel Mr. Hansaria also pointed out that the existence of the dividing wall between the building of the said society and the 3 theaters was accepted by the U.S.Jagtap 12 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc petitioners and the said society and that a reference to the same was made in the said consent decree dated 17 th December, 1984. He further pointed out that the area covered by the building of the said society was 48,750 sq.ft.
19. Learned Senior Counsel Mr. Hansaria further submitted that originally the petitioners were in possession of entire Plot of land bearing no.216A.
However, on account of decree dated 17 th December, 1984, the said society became a sub-lessee of the petitioners'. He submitted that even though such a sub-lease was created in favour of the said society in respect of the land covered by the building of the said society and the land appurtenant thereto, the petitioners continued to be lessee of the Corporation and as such held rights in respect of the Plot no.216A.
20. Learned Senior Counsel Mr. Hansaria further pointed out that on account of sub-lease in favour of the said Society, as per consent decree dated 17th December, 1984 a part of Plot no.216A which was occupied by the 3 theaters and the land appurtenant thereto was put up for sale in the Recovery proceeding No.466 of 2003. This was done as petitioners were enjoying the said portion as lessee. It was pointed out that respondent nos.
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4 and 5 secured 50% undivided interest in the said portion of land, which was mentioned in the sale notice and the sale certificate. Learned Senior Counsel Mr. Hansaria, therefore, submitted that looking to the developments which took place as mentioned aforesaid, it can be said that the petitioners lost their rights as a lessee in respect of the portion of the Plot no.216A, which was occupied by the 3 theaters and the land appurtenant thereto. He emphasized that the petitioners after the auction sale, continued to have rights as lessee in respect of the portion of Plot no.216A covered by building of the said society admeasuring 48,750 sq.f.t and the land appurtenant thereto.
21. Learned Senior Counsel Mr. Hansaria, therefore, submitted that the very fact that respondent nos. 4 and 5 had applied for sub-division of Plot no.216A clearly indicates that they very well knew that they do not have rights in regard to entire Plot no.216A. He also pointed out that said application was rejected to the knowledge of respondent nos. 4 and 5. He submitted that after the acquisition of rights by respondent nos. 4 and 5 as per auction sale, the names of respondent nos. 4 and 5 were entered in the city survey record and at the relevant time, the names of the present petitioners continued to be shown as lessee in respect of Plot no. 216A with U.S.Jagtap 14 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc reference to balance Plot No.216A. Learned Senior Counsel Mr. Hansaria submitted that despite such a knowledge by respondent nos. 4 and 5 that they have no right in respect of entire Plot no.216A, they misrepresented to the Corporation that they have rights in respect of entire Plot of land no.216A along with Plot no.216 and made the Corporation to accept request for amalgamation of Plot nos.216 and Plot no.216A. Learned Senior Counsel Mr. Hansaria submitted that respondent nos. 4 and 5 were successful in persuading the Corporation to grant the request of amalgamation of Plot nos.216 and 216A, though, factually such amalgamation was not permissible without the consent of the petitioners, who continued to be the lessee of the Corporation in regard to the portion of Plot no.216A on which the building of the said Society i.e. Manish Commercial Centre stood and the land appurtenant to the said building.
Learned Senior Counsel Mr. Hansaria further submitted that the request for amalgamation of Plot no.216 and 216A was processed by the Corporation without giving an opportunity to the petitioners to put up their say. He further submitted that procedure for grant of amalgamation of Plot nos.
216 and 216A was completed by passing various resolutions by the Corporation behind the back of the petitioners. Learned Senior Counsel Mr. Hansaria submitted that on account of order of amalgamation of Plot U.S.Jagtap 15 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc nos.216 and 216A, the rights of the petitioners have been violated and the petitioners had no other alternative but to approach this Court so as to redress their grievances and to have order of amalgamation of Plot nos.216 and 216A and other order / sanctions / resolutions quashed and set aside.
Learned Senior Counsel Mr. Hansaria submitted that on account of amalgamation of Plot no.216 and 216A and grant of sanction of plans for construction treating Plot no.216 and 216A as one Plot, the petitioners' rights in respect of the portion of Plot no.216A, which was not sold to the respondent nos. 4 and 5 came to be violated.
22. Learned Senior Counsel Mr. Hansaria submitted that on account of order passed by this Court in Writ Petition (L) No.2498 of 2011, the Deputy Municipal Commissioner (Improvement) gave hearing to the parties and came to the conclusion that the petitioners as well as respondent nos. 4 and 5 should approach the Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights. He submitted that by the said order, the Deputy Municipal Commissioner (Improvement) in terms, declined to accept the stand of the petitioners that the amalgamation of Plot nos. 216 and 216A was wrongly approved. He further submitted that by the order dated 9th May, 2012 passed by the Deputy Municipal Commissioner U.S.Jagtap 16 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc (Improvement), said officer declined to perform the job which he was supposed to do. Learned Senior Counsel Mr. Hansaria submitted that though the Deputy Municipal Commissioner (Improvement) took a note of the consent terms entered into by and between the petitioners and the said society, he erred in declining to accept the stand of the petitioners that without the consent of the petitioners, who were lessee in respect of the land covered by the building of the said Society and the land appurtenant thereto, amalgamation of Plot nos. 216 and 216A was not possible. Learned Senior Counsel Mr. Hansaria submitted that the said Deputy Municipal Commissioner (Improvement) as well as the concerned officers of the Corporation should not have granted the amalgamation of Plot nos. 216 and 216A. Learned Senior Counsel Mr. Hansaria submitted that the Deputy Municipal Commissioner (Improvement) pursuant to the said decision of amalgamation erred in not accepting the status of the petitioners as lessee in respect of the portion of Plot no. 216A as mentioned aforesaid.
23. Learned Senior Counsel Mr. Hansaria submitted that the Deputy Municipal Commissioner (Improvement) was empowered to decide the questions referred to him. Learned Senior Counsel Mr. Hansaria submitted that the documents and material placed before him clearly showed that the U.S.Jagtap 17 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc petitioners continued to be the lessee of the portion of Plot no.216A i.e. land covered by the building of the said society and land appurtenant thereto. He further submitted that view taken by the Deputy Municipal Commissioner (Improvement) that the matter before him involved a dispute over title of the land and was required to be decided by the Debt Recovery Tribunal-1 / Civil Court is erroneous. Learned Senior Counsel Mr. Hansaria submitted that the Debit Recovery Tribunal-1 had nothing to do with the claims put up by the petitioners and challenge to the amalgamation. He pointed out that the Debt Recovery Tribunal came in picture only as regards the sale of the land described in Sale Notice and Sale Certificates dated 23rd May, 2005. He further submitted that the Deputy Municipal Commissioner (Improvement) declined to perform his job and refused to take cognizance of rights of the petitioners in respect of the portion of Plot no.216A of which they continued to enjoy their rights as lessee. He further submitted that respondent nos. 4 and 5 misrepresented to the Authorities that they have rights in respect of entire Plot nos. 216 and 216A and secured an order in their favour to the prejudice of the petitioners. Learned Senior Counsel Mr. Hansaria further submitted that the petitioners are entitled to reliefs in terms of prayer clause (a) of this petition.
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24. Learned Senior Counsel Mr. Hansaria further submitted that if the stand of the petitioners is accepted and this Court grants reliefs to the petitioners in terms of prayer clause (a), the construction work in progress by respondent nos. 4 and 5 on Plot no.216A pursuant to plans sanctioned, taking into consideration Plot no.216 and 216A as one Plot of land, should be stopped.
25. Learned Senior Counsel Mr. S.U. Kamdar appearing on behalf of the respondent no.1 Corporation and its officers opposed the submissions advanced by learned advocate for the petitioners. Learned Senior Counsel Mr. Kamdar supported the stand taken by respondent no.1 in the matter of amalgamation of Plot no.216 and 216A and submitted that the process of amalgamation of Plot nos.216 and 216A was attended to by following the procedure in accordance with the provisions of law and that the said order and the plans sanctioned consequent upon amalgamation of Plot nos. 216 and 216A have become final and cannot be challenged. Learned Senior Counsel Mr. Kamdar submitted that the stand of the petitioners that they continued to hold rights as a lessee in respect of the portion of Plot no.216A is not correct as per the record maintained by the Corporation. He U.S.Jagtap 19 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc submitted that the Deputy Municipal Commissioner (Improvement) has considered all the points involved in the matter which were referred to him for his decision and he has rightly arrived at the conclusion that the dispute raised by the petitioners involve questions of title of land and that the petitioners and respondent nos. 4 and 5 should approach Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights. Learned Senior Counsel Mr. Kamdar submitted that the Deputy Municipal Commissioner (Improvement) had no authority to deal with the questions of title and that the order passed by the Deputy Municipal Commissioner (Improvement) dated 9th May, 2012 is correctly passed and needs no interference. He further submitted that the order of amalgamation cannot be declared as illegal unless the petitioners establish their rights in the Civil Court over the portion of the Plot no.216A. Learned Senior Counsel Mr. Kamdar submitted that the petition should be dismissed.
26. Learned Senior Counsel Mr. Bharucha appearing on behalf of respondent nos. 4 and 5 equally opposed the petition. He had taken us through various documents including the Sale Certificates issued in favour of respondent nos. 4 and 5, the text of the consent decree dated 17 th December, 1984 and had submitted that after the auction sale and issuance U.S.Jagtap 20 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc of Sale Certificates in favour of respondent nos. 4 and 5 respectively, the petitioners had no right in respect of Plot no.216A and as such challenge to the amalgamation of Plot nos. 216 and 216A cannot sustain. Learned Senior Counsel Mr. Bharucha further submitted that in the past, an effort was made by the present petitioners along with said society by filing Writ Petition No.2696 of 2010 so as to put up challenge to the building plans, which were sanctioned by the Corporation to construct building over that portion of the land, which was once upon a time occupied by the three theaters. He submitted that at the relevant time the petitioners had not challenged the amalgamation of Plot nos. 216 and 216A. He further submitted that the question of construction by respondent nos. 4 and 5 again surfaced in Writ Petition No.799 of 2011 wherein the petitioners and said Society had challenged the decision of the Deputy Chief Engineer (City) regarding the plans. He submitted that as the plans were modified and duly sanctioned by the Corporation, the said petition was disposed of.
He submitted that even at that stage, there was no challenge to the amalgamation of Plot nos.216 and 216A. He, therefore, submitted that it is not open for the petitioners to challenge the decision of the Deputy Municipal Commissioner (Improvement) dated 9th May, 2012, amalgamation of Plot nos. 216 and 216A and other Resolutions passed by U.S.Jagtap 21 of 42 ::: Downloaded on - 09/06/2013 19:28:32 ::: wp1385.12.judgment.doc the Corporation. Learned Senior Counsel Mr. Bharucha had submitted that the stand of the petitioners that without their consent, amalgamation of Plot no.216 and 216A was not possible, cannot sustain as the petitioners had no right in respect of Plot no.216A at all after the completion of auction sale in favour of respondent nos. 4 and 5. According to him, the Sale Certificates dated 23rd May, 2005 clearly indicate that the petitioners lost their rights in the entire Plot no.216A and consequently after 2005, it was not open for the petitioners to put up their claim in respect of the Plot bearing no.216A. Learned Senior Counsel Mr. Bharucha, therefore, submitted that the petition should be dismissed.
27. Learned Senior Counsel Mr. Bharucha submitted that in Writ Petition (L) No.2498 of 2011 the petitioners had challenged the amalgamation of Plot nos. 216 and 216A and various other resolutions. He pointed out to the Court that minutes of order dated 13th February, 2012 and submitted that the petitioners had agreed to refer the dispute to the decision of the Municipal Commissioner (Improvement) or an officer appointed in that behalf. Learned Senior Counsel Mr. Bharucha submitted that on account of minutes of order, the petitioners were obliged to accept the decision which would be rendered in the said reference. He further submitted that the U.S.Jagtap 22 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc Deputy Municipal Commissioner (Improvement) to whom the dispute was referred has rightly arrived at a conclusion that questions relating to rights pertaining to the said land should be settled by Debt Recovery Tribunal-1 / Civil Court. Learned Senior Counsel Mr. Bharucha, therefore, submitted that no fault can be found in the order dated 9th May, 2012 as also in the order permitting amalgamation of Plot nos. 216 and 216A and other Resolutions. He, therefore, submitted that the petition should be dismissed.
28. We have heard learned Counsels appearing on behalf of respective sides. A perusal of City Survey extract at page 106 shows that there existed two Plots at Dr. Annie Basent Road, Worli, Mumbai being Plot no.216 and Plot no.216A. It is also noticed that these two Plots are adjacent to each other. So far as Plot no.216 is concerned, the name of Municipal Corporation, City of Bombay is shown as lessor. It is noticed that said Plot no.216 was originally leased to Mr. Maniyar. Thereafter, one finds successive assignment of lease and ultimately the names of respondent nos.
4 and 5 are shown as lessees. This means the title of respondent nos. 4 and 5 qua Plot no.216 is clear and that they are lessees in respect of said plot of land no.216.
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29. So far as Plot no.216A is concerned, the name of the Corporation is shown as lessor. It is noticed that the Corporation had leased out said Plot in favour of Mr. S.M. Dahanukar and D. N. Dahanukar as lessees. It also shows that the petitioners secured assignment of a lease in their favour from these two persons by Deed of Assignment dated 29 th September, 1972.
Consequently, the names of said S.N.Dahanukar and Dinkar N. Dahanukar have been put in a bracket so as to show that their rights have come to an end in respect of Plot no.216A. The name of the petitioners appears as a lessee and the same name is not bracketed. This will show that petitioners continue to be the lessee of this plot. After the name of the petitioners in column no. 10 of City Survey extract, the names of respondent nos. 4 and 5 are shown as lessees on account of Sale Certificates dated 23 rd March, 2005 and each of them has 50% of share in total built-up area of 39,986 sq.ft. It is pertinent to note that the name of the petitioners is not put in a bracket in column no. 10. Since the name of the petitioners is not put in a bracket, entries appearing in column 10 and 11 in City Survey extract clearly show that the petitioners continue to have rights in Plot no.216A as a lessee. It is thus indisputable that name of the petitioners appears in the property record qua plot no.216A. Therefore, regardless of the extent of U.S.Jagtap 24 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc share or subsisting right of petitioners in the said plot on lessees, in law, the Corporation could not have allowed amalgamation of Plot No.216 and 216A without notice to the petitioners.
30. Reverting to the consent decree dated 17 th December, 1984 arrived at between the petitioners and the said Society in Suit No.1927 of 1984, there is a clear reference to the dividing wall between building of the said Society and the property over which three theaters were standing. The relevant portion of the consent decree one finds a reference to the existence of the common wall and provisions as regards maintenance of the same, as follows:
"...that there is a common wall as shown on the said plan annexed in Green colour in between the Building Manish Commercial Centre and Satyam Theatre and the twin theatres Sundaram and Sachinam belonging to the Defendants and the Plaintiff hereby agree to undertake to this Hon'ble Court not to cut off repair, remove or destroy the said wall, or any portion or portions thereof at any time AND THIS COURT BY AND WITH SUCH CONSENT DOTH ORDER that the repairs, removal, renovation and / or reconstruction of the said wall shall always be carried out by the Defendants AND THIS COURT BY AND WITH SUCH CONSENT DOTH RECORD that the Plaintiff agree and undertake to this Hon'ble Court to afford all facility and Cooperation to the Defendants in repairing removing renovating and / or reconstructing the said all."
31. A reading of the said consent decree would go to show that Plot U.S.Jagtap 25 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc no.216A was divided into two portions namely; portion no.1 which was covered by the building of the said Manish Commercial Centre and portion no.2 which was covered by the 3 theaters. It has been asserted by the respondent nos. 4 and 5 in their affidavit-in-reply, filed by Mr. Nitin Mathuriya, dated 1st August, 2012, at paragraph 21, that on 20 th July, 2004 an order was passed by this Court in Judges Order No.83 of 2004 in Execution Application No.77 of 2002 for sale of the entire Plot of land bearing no.216A admeasuring 6022 sq.meters. and on account of the aforesaid order, the Debt Recovery Tribunal had put up the entire Plot no.216A for auction. We are not inclined to accept this stand of the respondent nos. 4 and 5 on account of the text of the public notice issued by the Debt Recovery Tribunal for sale of the land. The description of the property mentioned in the said sale notice is as follows.
"Immovable property of land bearing Plot No.216A, Dr. Annie Besant Road, CTS No.5/1629, Lower Parel Division Worli, Mumbai along with structures thereon including 3 theaters Satyam, Sachinam and Sundaram containing builtup area of approx. 39,986 sq.ft. plus basement excluding the Manish Commercial Centre Building and the land appurtenant thereto admeasuring approximately built up area of 48,750 sq.ft. occupied by the said Manish Commercial Centre Building owned by Manish Commercial Estate." (emphasis supplied)
32. A perusal of the said notice would clearly go to show that entire Plot no.216A was not put up for sale. However, only the portion of the land U.S.Jagtap 26 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc covered by 3 theaters and the land appurtenant thereto was put up for sale.
The existence of the wall between the building of the said Manish Commercial Centre and the 3 theaters must have been taken into consideration while drafting the said notice for sale. If at all, the entire Plot no.216A was to be sold, then, there was no need to exclude the properties then held by Manish Commercial Center building and the land appurtenant thereto. It is also required to be noted that on account of the Consent Decree dated 17th December, 1984, the said Society has secured sub-lease in respect of the land admeasuring 1440 sq.meters i.e. the land below the building of the Manish Commercial Centre and the land appurtenant thereto. Surely, on account of such a sub-lease in favour of the said society as per the consent terms, that portion of the land could not have been sold in auction. It is to be noted that the sub-lessee i.e. said Society cannot get rights higher than the covenants in the sub-lessee and only those limited rights were passed on to the Society in respect of the relevant portion of 216A. The Society has come on the scene only as sub-lessee and not as assignee having absolute rights therein. In other words, the petitioners continue to be the lessees in respect of the said portion of 216A. Further, as the petitioners did not have possession of the said portion admeasuring 1440 sq.meters, the sale could not be conducted U.S.Jagtap 27 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc in respect of entire Plot no.216A. Thus, the sale was conducted only in respect of part of Plot no.216A i.e. the property below the three theaters and land appurtenant thereto. This is clear from the two Sale Certificates dated 23rd March, 2005. The description of the property mentioned in the sale notice tallies with the description mentioned in Sale Notice. It is noticed that no one, in particular, respondent nos. 4 and 5, have challenged the said description of immovable property mentioned in the Sale Certificates. In fact, perusal of City Survey Extract at page 106 of the petition clearly shows that respondent nos. 4 and 5 accepted the said description in the Sale Certificates and applied to the Corporation for bringing their names on record on that basis. That request was duly granted by the Corporation and the names of respondent nos. 4 and 5 were brought on record in respect of Plot no. 216A by mentioning the names of respondent nos. 4 and 5 as follows.
Particulars mentioned in Column no.10.
"(D) [M/s. Grasim Industries Ltd.
(50% shares in total built up area of 39986 sq.ft.) F-M/s. Hindalco Industries Ltd.
(50% shares in total built up area of 39986 sq.ft.) (LESSEE)"
33. The mode of acquisition by respondent nos. 4 and 5 was mentioned in City Survey Extract as against the names of respondent nos. 4 and 5 as U.S.Jagtap 28 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc follows.
Particulars mentioned in Column no.11.
(D) (Deed No.9450/2005 Sale Certificate Dt. 23.3.2005 issued by Municipal Debts Recovery Tribunal-I, where by the 50% shares of the built up area 39986 sq.ft. and the land appurtenant thereto to "E" in Col.10 for Rs.21,00,50,000/- vide M.R No.231/2005 (Deed No.9449/2005) Sale Certificate dt. 23.3.2005 issued by Mumbai Debts Recovery Tribunal-I, where by the 50% shares of the built up area 39986 sq.ft. and the land appurtenant thereto to "E" in Col.10 for Rs.21,00,50,000/- vide M.R No.232/2005."
34. In addition to the above, the name of the petitioners is shown as lessee without putting their name in a bracket.
35. A reading of the said city survey extract at page 106 clearly shows that name of the petitioners continued to be shown as lessee and the names of respondent nos. 4 and 5 are shown as lessees in respect of a portion of Plot no.216A. The stand of the respondent nos. 4 and 5 that on account of the auction sale, the petitioners completely lost their rights in the entire plot No.216A, therefore, cannot be accepted. If at all, the petitioners had lost their rights in respect of entire Plot no.216A, the name of the petitioners would have been put in a bracket as has been done in the case of assignors of the petitioners' name Shantaram N. Dhanukar and Dinkar N.
Dhanukar. It is pertinent to note that respondent nos. 4 and 5 have not challenged the said City Survey Extract which is produced before the Court U.S.Jagtap 29 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc at page no.106 of paper book. In view of the aforesaid discussion, it is clear that as of today the name of the petitioners stands in the city survey record as a lessee.
36. The petitioners did hold the entire Plot no.216A as a lessee up to the completion of a sale for which Sale Certificates were issued on 23 rd May, 2005. The fact that there was a dispute as regards a portion of the land bearing no.216A between the petitioners and the said society is evident from the decree dated 17th December, 1984 passed by this Court in Suit No.1927 of 1984 filed by the said society against the petitioners on the original side of this Court. The respondent nos. 4 and 5 have annexed the copy of the decree dated 17th December, 1984. We have gone through the said decree. A perusal of the said decree goes to show that a building by name Manish Commercial Centre was constructed on the portion of the Plot no.216A and the said society had sought conveyance of the land underneath said centre as well as land appurtenant thereto. A perusal of the said consent decree indicates that the parties had agreed that the petitioners had a right in respect of entire Plot of land no.216A as a lessee and the area of the said Plot was 7202 sq.yards equivalent to 6022 sq.meters. The description of the said Plot no.216A agreed to by and U.S.Jagtap 30 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc between the said society and the petitioners is as follows.
"First :- All that piece or parcel of leasehold land or ground being larger property situate at Worli being Plot No.216A of the Scheme 52 of the Worli Estate of the Corporation in the City Island and Registration Sub-District and District of Bombay now in the registration Sub-District and District of Bombay City and Bombay Suburban containing by admeasurement 7202 sq.yds. Equivalent to 6022 sq.metres or thereabouts and registered in the Books of the collector of Land Revenue under Cadastral Survey No.5/1629 of Lower Parel Division together with all buildings and structures standing thereon and assessed by the Assessor and Collector of Municipal Rates and Taxes under G Ward No.1455(1) and 1455(1-A) and Street nos.454 and 454A and bounded on or toward the east by drainage channel, on or toward the West by 40 feet Road No.11 on or towards the North by 100 feet Dr. Annie Besant Road, and on or towards the South by Plot No.216 of the said Estate of the Corporation leased to May and Baker Ltd. the above property (being larger property) is delineated on the plan hereto annexed and is shown thereon surrounded in Red Colour boundary line."
37. The said consent decree further indicates as to what was agreed to be conveyed to the said Society and what rights were sought to be conferred upon the said Society. The relevant portion of Consent Decree is as under.
"AND THIS COURT BY AND WITH SUCH DOTH FURTHER ORDER and DECREE that the Defendants do convey to the plaintiffs the building Manish Commercial Centre constructed by the Defendants on the demised land AND THIS COURT BY AND WITH SUCH CONSENT DOTH FURTHER ORDER and Decree that this decree do operate and as a sub-lease in respect of the said portion of the land shown on the said plan in yellow colour boundary line (being the sub demised land) and on which the Building Manish Commercial U.S.Jagtap 31 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc Centre stands, by the Defendants in favour of the plaintiffs for a term of 99 years from the date hereof on an yearly rent of Re.1/- payable by the Plaintiffs to the Defendants AND THIS COURT BY AND WITH SUCH CONSENT DOTH FURTHER ORDER AND DECREE THAT the sub-lease shall stand renewed for a further period of 99 years on the expiry of the initial period of 99 years from the date hereof AND THAT THIS COURT BY AND WITH SUCH CONSENT DOTH FURTHER ORDER AND DECREE that this decree do operate as conveyance from the Defendants in favour of the plaintiffs in respect of the building Manish Commercial Centre standing on the sub demised land AND THAT THIS COURT BY AND WITH SUCH CONSENT DOTH FURTHER ORDER and decree that save and except sub-lease in favour of the Plaintiffs by the Defendants in respect of the sub demised land, the Plaintiffs have no interest in the remaining portion of the larger property described first in the schedule annexed hereto as Exhibit "A".
ig (emphasis supplied)
38. The description of the property in respect of which such rights were created in favour of the said society is as follows.
"Secondary :- All that piece or parcel of leasehold land or ground situate at Worli containing by by admeasuring 1400 sq.mts. Or thereabouts being sub-demised land and being the part of the larger property i.e. Plot no.216A of the Scheme 52 of the Worli Estate of the Corporation in the City Island and Registration sub- District and District of Bombay now in the registration sub-District and District of Bombay City and Bombay Suburban described first in the schedule abovementioned and bearing CS No.5/1629 part of Lower Parel Division together with the Building Manish Commercial Centre standing thereon and delinated on the plan hereto annexed in yellow colour boundary line."
39. A perusal of the aforesaid portions show that out of the total area of Plot no.216A admeasuring 6022 sq.meters, the said Society became the U.S.Jagtap 32 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc "sub-lessee" in respect of land admeasuring 1400 sq.meters i.e. land on which the building namely Manish Commercial Centre is standing and land appurtenant thereto. The said Society became "owner of building" by name Manish Commercial Centre. This will clearly go to show that the petitioners had executed a "sub-lease" in favour of the said society. This of course does not mean that the petitioners were divested of their rights as lessee of the Corporation in respect of the land admeasuring 1400 sq.meters. Since the said society was a sub-lessee in respect of Plot admeasuring 1440 sq.meters, there was no question of said property being sold in auction. The stand of the petitioners that the auction sale did not result in divesting their rights in respect of entire Plot no.216A is therefore indisputable and required to be accepted. If the said property would have been put in for auction, it would have violated the rights of the said Society qua the land admeasuring 1440 sq.meters and the building by name Manish Commercial Centre. It is obvious that the Debt Recovery Tribunal had noted this aspect of the matter and had accordingly put up that portion of the Plot of land bearing no.216A over which three theaters were standing. At the cost of repetition, it may be noted that the description of the property mentioned in the Sale Certificates as well as the records maintained in terms of the City Survey Extract clearly go to show that the U.S.Jagtap 33 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc portion of the land which was enjoyed by the said society as a sub-lessee was not put up for auction in the year 2005 by the Debt Recovery Tribunal.
Once this finding is reached, the stand of the respondent nos. 4 and 5 that they acquired rights in the entire Plot of land no.216A is untenable and is required to be rejected. It can be observed that respondent nos. 4 and 5 secured rights in respect of the portion of Plot no.216A which has been duly mentioned in the Sale Certificates dated 23 rd May, 2004 and the property described in city survey extract at page 106 of the paper book.
40. It is noticed that after the Sale Certificates and acquisition of rights in respect of the portion of 216A respondent nos. 4 and 5 applied to the Corporation for sub-division of Plot no.216A. The very fact that respondent nos. 4 and 5 applied for sub-division of Plot no.216A clearly indicates that they were conscious of the fact that they do not hold rights in respect of entire Plot no.216A and that they had acquired rights pursuant to the auction sale only in regard to the portion of the land of 216A which came to be described in the Sale Certificates and the said City Survey Extract.
We were not shown any material by the learned Senior Counsel for the respondent nos. 4 and 5 that after the request for sub-division of Plot no.216A was rejected, they had challenged the said decision. This would U.S.Jagtap 34 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc clearly estop respondent nos. 4 and 5 from claiming rights in the entire Plot no.216A. The very fact that respondent nos. 4 and 5 accepted the decision of the Corporation, whereby the Corporation declined to sub-divide Plot no.21A in two portions clearly shows that at the time when the respondent nos. 4 and 5 applied for amalgamation of Plot no.216 and 216A, they knew that they had no right in respect of the entire Plot no.216A. It necessarily follows that there is force in the stand of the petitioners that respondent nos. 4 and 5 "misrepresented" the Corporation that respondent nos. 4 and 5 had right in respect of the entire Plot no.216A.
41. It is common ground that the Corporation happens to be the lessor in respect of Plot no.216A. In such a situation, it should have been very clear to the Corporation, on the basis of the record available with the Corporation as also the City Survey Extract being the title document that the present petitioners continued to be the lessees in respect of the part of 216A i.e. the land covered by the said society and land appurtenant thereto. If the Corporation had examined their own record in proper perspective, it is indisputable that the petitioners continued to be lessee in respect of part of Plot no.216A. It was, therefore, obligatory for the Corporation to call upon the petitioners to submit their response on the U.S.Jagtap 35 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc question of amalgamation of Plot nos. 216 and 216A before taking any final decision in that regard. However, the amalgamation of Plot o.216 and 216A was permitted to be done by the Corporation ignoring the rights of the petitioners as the lessee on account of false claim of the respondent nos. 4 and 5 that they had rights in the entire plot. The learned Counsel for the Corporation could not show that before granting amalgamation of Plot no.216 and 216A, the petitioners were heard and / or their say was considered. Thus, the Corporation committed manifest error in hastening the process of amalgamation of the said plot at the instance of the respondent nos. 4 and 5 for reasons best known to it. This act of the Corporation has resulted in violation of rights of the petitioners qua the stated portion of Plot no.216A. The action of the Corporation granting amalgamation and granting a permission to construct on Plot no.216 and 216A by treating these two plots as one will have to be termed as illegal, if not fraudulent or colourable exercise of power.
42. It is noticed that the petitioners were aggrieved by the action of the Corporation concerning amalgamation of Plot no.216 and 216A and had, therefore, challenged the said order of amalgamation dated 6 th October, 2012. The petitioners were aggrieved by other order / resolutions passed U.S.Jagtap 36 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc by the Corporation. The petitioners therefore filed Writ Petition (L) No.2498 of 2011 in this Court. In the said Writ Petition the Corporation as well as respondent nos. 4 and 5 along with the petitioners agreed to have the dispute raised by the petitioners resolved by the Municipal Commissioner of the Corporation or a competent officer. It is noticed that the Deputy Municipal Commissioner (Improvement) was entrusted with the task of hearing the petitioners, respondent nos. 4 and 5 and all other persons. A perusal of the order dated 9 th May, 2010 passed by the Deputy Municipal Commissioner (Improvement) indicates that the the Deputy Municipal Commissioner (Improvement) in paragraph 16 of the said order noted the stand of the petitioners that the order regarding amalgamation was passed without obtaining consent of the petitioners. This would show that the said officer was well informed at the stage of the hearing that the order of amalgamation and other orders were passed behind the back of the petitioners and in violation of the rights of the petitioners. The said officer i.e. the Deputy Municipal Commissioner (Improvement) has thereafter in paragraph 17 taken a note of the Suit No.1927 of 1984 filed by the said Society against the petitioners and the consent decree. The Deputy Municipal Commissioner (Improvement) has referred to the Sale Certificates and has thereafter arrived at conclusion that the description U.S.Jagtap 37 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc mentioned in the Sale Certificate creates an ambiguity as regards the area of land. On such erroneous basis, he proceeded to hold that the dispute referred to him involved disputed questions of title and that petitioners and respondent nos. 4 and 5 are required to approach the Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights. In our view, this reason given by the Deputy Municipal Commissioner (Improvement) is clearly unstatable. For, the Deputy Municipal Commissioner (Improvement) could have on the basis of record before him easily proceeded on the premise that the petitioners continued to be the lessee in respect of the portion of Plot no.216A over which the building of the said Society viz. Manish Commercial Centre was standing and land appurtenant thereto. In our view, the Deputy Municipal Commissioner (Improvement) failed to perform the task which was assigned to him; and moreso he came to a wrong conclusion that the rights of the petitioners and the respondent nos. 4 and 5 are required to be decided by Debt Recovery Tribunal-1 / Civil Court. It is noticed that after passing of the order dated 13th February, 2012, the petitioners had filed a detailed representation dated 7th March, 2012 addressed to the Municipal Commissioner of the Corporation. The respondent nos. 4 and 5 had also put in their reply dated 20th March, 2012. In the said reply, in paragraph 10, respondent nos. 4 and U.S.Jagtap 38 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc 5 have made reference to the consent decree in the Suit No. 1927 of 1984.
This would mean that entire relevant record was before the Deputy Municipal Commissioner (Improvement) as well as the Commissioner and on perusal of the said record, in our view, he has had no option but to answer the point raised by the petitioners namely; even on the date of the hearing of the matter by the Deputy Municipal Commissioner (Improvement) the petitioners continued to be the lessee in respect of the portion of Plot of land no.216A in the affirmative. And on that basis, he could have passed appropriate orders setting aside the order of amalgamation of Plot nos. 216 and 216A. He could have passed consequential orders also. In our opinion, the Deputy Municipal Commissioner (Improvement) failed to consider the documents placed before him and wrongly came to the conclusion that the matter involves disputed question of title which can be resolved by a Debt Recovery Tribunal-1 / Civil Court. The very fact that the operative part refers to calling upon the petitioners and respondent nos. 4 and 5 to approach Debt Recovery Tribunal-1 / Civil Court for declaration of their respective rights is clearly indicative of the fact that the concerned Deputy Municipal Commissioner (Improvement) did not apply his mind properly. Even if it is accepted for a moment that the decision of the Deputy Municipal U.S.Jagtap 39 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc Commissioner (Improvement) was proper in asking the parties to have their rights adjudicated by a Civil Court, the reference to Debt Recovery Tribunal-1 was totally out of place. The Debt Recovery Tribunal-1 was concerned in the entire matter only with reference to the sale of a portion of Plot of land no.216A, which was occupied by the 3 theaters and the land appurtenant thereto. The Debt Recovery Tribunal-1 in any case, could not have decided rights of the parties qua the properties involved.
43. After having considered the entire record in particular relevant property title documents, we are inclined to observe that the rights of the petitioners qua the portion of land bearing Plot no.216A over which the building of the aforesaid society is standing and the land appurtenant thereto have been violated on account of amalgamation of Plot no.216 and 216A and the consequential orders / Resolutions passed by the Corporation.
44. In our view, the order passed by the Corporation thereby granting amalgamation of Plot no.216 and 216A and consequential orders / resolutions as also permission to construct as per the plans sanctioned by the Corporation on that basis are illegal and are required to be quashed.
U.S.Jagtap 40 of 42
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45. For the aforesaid reasons, we are inclined to allow the petition.
Needless to mention that if the order of amalgamation dated 6 th October, 2012 and other orders / resolutions are declared to be illegal, the respondent nos. 4 and 5 cannot carry out construction on the basis of the plans sanctioned by the Corporation reckoning the amalgamation order.
As the very sanction would be illegal, appropriate order and directions will have to be issued as prayed for.
46. For the reasons mentioned aforesaid, following order is passed to dispose of this petition.
ORDER
(a) Rule is made absolute in terms of prayer clause (a).
(b) The amalgamation of Plot nos. 216 and 216A is hereby set aside.
As a result, the plans for construction of buildings treating Plot nos.216 and 216A as one plot of land are also set aside. The Corporation is directed to forthwith take corrective measures in the light of this decision in accordance with law and not permit the respondent nos. 4 and 5 to carry out any further construction on Plot no.216A under File bearing No. EB/4570/GS/A and on Plot no.216 under file bearing No. U.S.Jagtap 41 of 42 ::: Downloaded on - 09/06/2013 19:28:33 ::: wp1385.12.judgment.doc EB/3353/GS/A on the basis of the impugned approved plans and call upon the said respondent nos. 4 and 5 to submit amended plan and rectify the construction already done in consonance with the amended plan as would be approved by it.
(c)There shall be no order as to costs.
[R.Y.GANOO, J.] [A.M. KHANWILKAR, J.]
U.S.Jagtap 42 of 42
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