Bombay High Court
A Private Ltd. Company vs Municipal Corporation Of Greater ... on 6 December, 2012
Bench: A.M. Khanwilkar, R.Y. Ganoo
wp1385.12.judgment.doc
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. ]
U.S.Jagtap 1 of 42
::: Downloaded on - 09/06/2013 19:28:32 :::
wp1385.12.judgment.doc
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
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.
U.S.Jagtap 3 of 42
wp1385.12.judgment.doc
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
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
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.
U.S.Jagtap 6 of 42
wp1385.12.judgment.doc
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
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
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.
U.S.Jagtap 9 of 42
wp1385.12.judgment.doc
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.
U.S.Jagtap 10 of 42
wp1385.12.judgment.doc
"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
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
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.
U.S.Jagtap 13 of 42
wp1385.12.judgment.doc
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
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
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
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
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.
U.S.Jagtap 18 of 42
wp1385.12.judgment.doc
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
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
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
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
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.
U.S.Jagtap 23 of 42
wp1385.12.judgment.doc
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
wp1385.12.judgment.doc
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
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
