/13 Wp2591.12Jdgmt.Sxw vs Mumbai Metropolitan Region ...
2013 Latest Caselaw 429 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                
                        WRIT PETITION NO. 2591 OF 2012




                                                     
     Bombay Goods Transport Association,
     18, Mehta Cahmbers,




                                                    
     2nd floor, Kalyan Street, Masjid Bunder (E),
     Mumbai- 400 009.

     2. Bombay Parivahan Terminal Ltd.
     c/o. Caravan Roadways,




                                    
     301/308, Trapinex House, Sholapur Street,
     Mumbai 400 009.  
     3. BGTA SUTLEJ CO-OP. PREMISES SOCIETY
                     
     LTD.
     c/o. G. Shantilal PLC Pvt. Ltd.
     BIT Bldg. No.5, Bhandari St., Katha Bazar,
     Mumbai 400 009.                            ...                       Petitioners
      


           V/s.
   



     Mumbai Metropolitan Region Development
     Authority





     2. The Metropolitan Commissioner,
     Mumbai Metropolitan Region Development
     Authority.

     3.  The Chief, Town & Country Planning Division,





     Mumbai, Metropolitan Region Development Authority.

     4. The Lands Manager, Mumbai Metropolitan
        Region Development Authority,

     All above having office at:




                                                     ::: Downloaded on - 06/01/2014 04:10:02 :::
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     Bandra Kurla Complex, 7th floor,
     Bandra (East), Mumbai 400 051.




                                                                                 
     5. Municipal Corporation of Greater Mumbai,




                                                      
        Shri Chhatrapati Shivaji Maharaj Market Building,
        2nd floor, Mata Ramabi Ambedkar Marg,
        Mumbai 400 001.




                                                     
     6. State of Maharashtra
        through its Urban Development Department
        Mantralaya, Mumbai - 400 032.                            ...       Respondents




                                     
     Mr. Aspi Chinoy, Sr. Advocate a/w. Mr. Birendra Saraf and Ms. Shruti Jain
     i/b. ALMT Legal for the petitioners.
                      
     Ms. Kiran Bagalia for respondents 1 to 4-MMRDA.
     Mrs. K.R. Punjabi for respondent no.5-BMC.
                     
                               CORAM : S.C.DHARMADHIKARI AND
                                       REVATI MOHITE DERE, JJ.
      


              J UDGMENT RESERVED ON: 4th December, 2013.
            JUDGMENT PRONOUNCED ON: 24th December, 2013.
   



     JUDGMENT (PER S.C.DHARMADHIKARI, J)

By this writ petition under Article 226 of the Constitution of India, the petitioners are challenging an order dated 17th August, 2012 by which the Mumbai Metropolitan Regional Development Authority (for short

MMRDA) has forfeited the licence agreement and resumed possession of the premises from the date of issuance of the order.

2. The facts necessary to appreciate the challenge to this order are

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briefly these. The respondent no.6 to this writ petition, namely, the State of

Maharashtra has allotted 61.51 hectare of land at Wadala, Mumbai to the MMRDA for use as a truck terminal. The Mumbai Municipal Corporation

(respondent no.5) sanctioned the lay out and in this lay out are, what is subject matter of this writ petition, namely plots K-1, K-2 and K-3.

3. The MMRDA offered to the petitioner no.1 of this writ petition which is an association, the plots including K-1, K-2 and K-3 for 30 years. Annexure H and I to this writ petition evidence this offer. The plots were

demarcated and possession was handed over on 2nd September, 1998. The

MMRDA informed the petitioner no.1 that pursuant to the State Government extending a lease in favour of MMRDA for 99 years, the

benefit of the same would be passed on to the parties like petitioner no.1. It is then urged that despite the possession being handed over, the construction could not commence because the plans in that behalf were not

approved by the Mumbai Municipal Corporation. There is a resolution of

the MMRDA dated 13th September, 2005 managing delays in processing and, therefore, the period of construction was extended for three years till

2008. In February, 2007 the MMRDA was appointed as a Special Planning Authority for Wadala Truck Terminal Area. The MMRDA demanded payment of development charges, inter alia, for plots K-1, K-2 and K-3. It appears that the petitioners applied for Commencement

Certificate regarding construction on these plots in 2008-09. The petitioners pointed out that they did not receive any Commencement Certificate. The letters were issued by MMRDA demanding penalty for

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delayed constructions of the plots excluding K-1, K-2 and K-3. The

MMRDA purported to refund the development charges received for Plot K-

1. The petitioners refusing to accept this refund insisted that the

Commencement Certificate be issued. There were some queries on which answers were sought under the Right to Information Act, 2005 and what then the petitioners are alleging is that for the first time in September, 2011

the MMRDA informed the petitioners of its intended proposal to resume these plots. The petitioners filed writ petitions in this Court requiring the MMRDA to process and grant the Commencement Certificate. These were

for distinct plots. However, as far as those plots were concerned, the Court

directed MMRDA to furnish the list of deficiencies/compliances required for sanctioning the plans and the petitioners were required to complete the

compliance thereof within a week and the MMRDA was to take a decision accordingly. The case of the petitioners is that through their Architect they complied with all these deficiencies/compliances but instead of the

Commencement Certificate being issued, what the petitioners are aggrieved

by is a notice for resumption of plots K-1, K-2 and K-3 on the ground that petitioners had failed to submit their construction proposal so also failed to

commence and complete construction. The MMRDA addressed a letter and pointed out that it has already issued a show-cause notice for resumption and, therefore, all proposals of the petitioners were rejected. There was correspondence on this issue but since no reply was given

insofar as compliance nor were the plans sanctioned that the petitioners filed a second writ petition in this Court and reliance is placed upon an order passed in that writ petition at page-86 of the paper-book. The

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petitioners have, therefore, challenged the order passed on 17 th August,

2012 resuming the plots K-1, K-2, K-3 by this writ petition.

4. Mr. Chinoy, the learned Senior Counsel appearing on behalf of the petitioners submits that the impugned order is contrary to law. It is passed in the teeth of an order of this Court and which records that the MMRDA

will consider the petitioners' applications for grant of approval for construction and development of these plots. Once the MMRDA agreed before this Court that the defects/deficiencies/compliances would be

notified to the petitioners and petitioners were given an opportunity to

remove them and obtain development permission or permission for construction then, the decision to resume the lands makes a mockery of the

order passed by this Court dated 10th January, 2012 in Original Side Writ Petition No. 2145/2011. It is submitted by Shri Chinoy that resumption is bad in law. There is a predetermination to resume the lands and such act

cannot be termed as bonfafide at all. It is contrary to the mandate of

Article 14 and 19(1)(g) of the Constitution of India.

5. Mr. Chinoy submitted that the impugned actions are high handed. They are vitiated by non-compliance with the doctrine of promissory estoppel. The petitioners have relied upon the promises made by the respondents and have altered their position. There is an overriding public

interest. Now the lands are purported to be resumed only because their potential in the market has gone up tremendously. The MMRDA wants to exploit them commercially and this is not expected of a public body,

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particularly, after it gives an assurance that the plans for construction would

be sanctioned provided the deficiencies and defects are removed. For all these reasons it is submitted by him that the writ petition be allowed.

6. On the other hand, Mrs. Bagalia appearing on behalf of the contesting respondent nos. 1 to 4 submitted that it is entirely false to

suggest that any impression was given to the petitioners at any time that the plans would be sanctioned. This is not even an impression given to this Court. At no point of time the MMRDA has waived its right of resumption.

In fact the position is that when the petitioners were allotted the property

and put in possession, for more than 14 years, they did nothing. They never made any serious attempt to utilise the land. In such circumstances

and when there is no right created in them as it was a pure license arrangement, then, all the more they cannot make any grievance of violation of the mandate of Article 14 or 19(1)(g) of Constitution of India.

There is no estoppel and in this case MHADA has acted bonafide. It has

acted in the best interest of the public inasmuch as it has not allowed a party to remain in possession of a immovable property for decades

together. The land in Mumbai is valuable. The petitioner no.1 is guilty of not utilising the property at all. For these reasons, she submits that writ petition has no merit and it should be dismissed.

7. We have with the assistance of Counsel appearing for both sides perused the writ petitions and all annexures thereto. The petitioners do not dispute that the subject plots have been handed over to them on their own

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showing in the year 1998. The plots were to be utilised by the petitioners

and in terms of the licence granted. It is not the case of the petitioners that the terms and conditions of the liecence were not to their knowledge. It is

common ground that by an agreement to lease which was executed way back in the year 1995 between the MMRDA and the petitioner no.1, the petitioner no.1 was informed that the lands are proposed to be allotted.

There is no firm allotment, leave aside a lease in favour of the petitioners. It was purely a licence and that is how it was created under the agreement for lease. The grant of licence is not a assignment in favour of the

petitioners. The same does not create any rights in their favour.

ig There were several stipulations so as to enable submission of the plans, their processing and grant of requisite permissions. There were time limits set

out for commencement and completion of construction work. The power to terminate the agreement and resume the land is admittedly conferred in MMRDA under this agreement. Once the petitioners were aware of the

stipulations in the agreement, then all that they were raising throughout is a

grievance that the MMRDA is not co-operating in early sanction of the plans so as to enable them to construct and develop the plots. In that

behalf, what we find is that the MMRDA has indicated on several occasions that the proper building plans and plan lay outs were carried out. The petitioners could have commenced construction as per the sanction of the Municipal Corporation of Greater Mumbai. The Commencement

Certificate was already issued by Municipal Corporation of Greater Mumbai after approving the lay out. The Commencement Certificate for construction was revalidated upto 19th January, 1997. This is in pursuance

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of the fresh plans for construction submitted in the year 1996. The

MMRDA vide its letter dated 20 th January, 1997 informed the petitioners that if the plans were to be modified, approval of BMC should be obtained

after the consent of the MMRDA as lessor.

8. Once the MMRDA has throughout been maintaining that despite

accommodation the petitioners did not take any steps for construction on the plot, then, we do not find that the stand of the MMRDA is in any way vitiated in law. The MMRDA has complained that there was never any

impediment for the petitioners to commence construction and whatever

concessions were sought, they were given from time to time. The petitioners submitted plans for construction on plot no. K-3 only in March

2008 and plot No. K-1 and K-2 only in April 2009. The proposals were not complete. There were defects and that is how the MMRDA alleges that petitioners have failed to carry out construction. The construction

should have been undertaken and completed long time back and in terms of

the agreement. That agreement itself stipulates that the lease would not be created in the event the plots are not utilised or kept idle and unutilised. In

these circumstances, we do not find that the MMRDA has in any way waived or given up its right to resume possession of the land from the petitioners. These are prime plots in the city of Mumbai. They have been allotted to the petitioners and petitioners were put in possession in the year

1998. If the resumption proceedings have commenced only after 2010, then, we do not find that MMRDA has in any way acted unreasonably and unfairly or arbitrarily. There are no malafides alleged. In fact the

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MMRDA has agreed to grant a lease in favour of the petitioners, had they

complied with the terms and conditions of the agreement to lease. Having executed this agreement, putting the petitioners in possession, the MMRDA

as a public body in larger public interest cannot be expected to wait for the petitioners to commence construction. The MMRDA waited and in our opinion patiently for more than ten years so as to enable the petitioners to

utilise the allotted plots. Once they found that concessions given and even an amnesty scheme being extended, the benefit thereof was not taken by the petitioners, then, we do not find anything unreasonable, illegal in the

MMRDA resuming the plots.

ig The explanation given on affidavit is, therefore, not vitiated by any law of bonafides or perversity.

9. We are not impressed by Mr. Chinoy's argument that MMRDA had at any time given impression to the Court that it was inclined to sanction the plans or condone the deficiencies and that is how the resumption

proceedings are vitiated. The MMRDA in the two orders passed by this

Court had made its stand clear. The petitioners were aware that a notice to show-cause was already issued to the petitioners for the delay in

completing the construction of the building on these plots. The show- cause notice was replied on 23rd February, 2012. That show-cause notice was not withdrawn. However, in the writ petition (L) No. 2145/2011 decided on 10th January, 2012 the MMRDA informed this Court that the

petitioner had at no point of time submitted a complete proposal. They have not removed the defects. It is noted in the Court's order that the MMRDA Counsel pointed out that the petitioners did not commence

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construction activity even during the amnesty period introduced by the

MMRDA in the year 2008. The Counsel for the petitioner on the other hand stated that a proposal for construction was submitted during the

amnesty period but no decision was taken thereon. It is in these circumstances that the Court directed that some decision should be taken by the MMRDA on the pending proposals and prior thereto it should

communicate the list of compliances. We do not find that in this order anything is stated or recorded by this Court by which it gets an impression that the MMRDA does not wish to pursue the show-cause notice for

resumption or that it does not wish to resume the land or that it has waived

its right in that behalf.

10. Thereafter, a further writ petition was filed in this Court and the very Bench which was persuaded to pass the order on 10 th January, 2012 in its further order in WP (L) 1228/2012 decided on 20 th June, 2012 recorded

that the MMRDA will consider the reply to the show-cause notice and pass

a reasoned order. That is how the petitioners withdrew their writ petition. In such circumstances and after having withdrawn the writ petition

unconditionally and to face the proceedings pursuant to the show-cause notice addressed by MHADA that the petitioners cannot now raise a grievance that the MMRDA did not act bonafide. The petitioner's submission that MMRDA tried to mislead this Court or gave any

impression to this Court as noted above, therefore, cannot be accepted.

11. We have perused the order passed by the MMRDA on the show-

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cause notice and we find that it is not vitiated for not assigning any reasons.

The order is passed by a Authority in terms of the powers conferred under the agreement to lease and even otherwise to resume the lands which are

put in possession of the petitioners. That power of resumption or re- entering the land vest in a lessor is recognized by law. That power in a public body has to be exercised reasonably, fairly and by abiding with the

mandate of Article 14 of the Constitution of India. It is not necessary to give reasons like a judgment of a Court. The order must reflect application of mind to germane and relevant materials.

12.

A scrutiny of the order dated 17 th August, 2012 would reveal that it is based on admitted facts and the documents, contents of which were

never disputed. That the initial agreement to lease was to get over in March 2014. That the MMRDA decided not to grant any extension beyond the agreed tenure is reflected in the correspondence between the parties and

to which we have made a detailed reference. That an amnesty scheme was

implemented from 1st October, 2005 thereby facilitating the petitioners to obtain the Commencement Certificate within one year from the date of

resolution is clear. That a further period of three years to complete the construction of the building namely upto 30th September, 2008 was granted. The MMRDA, therefore, acted fairly in extending certain benefits and concessions under the amnesty scheme to the petitioners to facilitate and

enable them to commence the construction. The application or proposal for building permission was not submitted within the stipulated period and equally the construction also was not completed is apparent. That the

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stipulations and terms of the agreement to lease are clear. That is how a

show-cause notice was issued to the petitioners calling upon them to show- cause as to why the land should not be resumed. The reply thereto was

given by the petitioners and one finds that there is absolutely nothing by which one can conclude that the lands have been resumed surreptitiously, suddenly or without adherence to the rule of law. The lands have been

resumed because the petitioners have failed to carry out the construction and abide by the terms and conditions of the agreement to lease. That the MMRDA, a public body waited for more than 14 years to resume the

possession of the land itself indicates that it treated the petitioners in

consonance with the mandate of Articles 14 and 19(1)(g) of the Constitution of India. That there were certain proposals and which were

discussed or that there were negotiations from time to time, will not carry the case of the petitioners any further. We are of the opinion that the MMRDA did not act hastily or in a premeditated or predetermined manner

to resume possession of the land.

13. For the aforementioned reasons, we do not find any merit in the writ

petition and it is accordingly dismissed. No costs.

14. At this stage, request is made to continue the ad-interim order which has been passed by the Division Bench during the pendency of this writ

petition. It is stated that on 6 th November 2012, the Division Bench directed that since the petitioners are in possession of land, that the status- quo should be maintained with regard to the suit property.

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15. On the very day, Ms. Bagalia appeared for the MMRDA and requested to recall the order of status-quo because the same will come in

the way of MMRDA in executing the development work. Therefore, the Court then passed an order that no precipitative steps be taken.

16. Though the petitioners claim to have been put in physical possession in 1998 but neither their development proposal was sanctioned nor any permission to carry out construction on the property was ever granted. In

such circumstances, we do not see how the claim of the nature made and

repeated, viz., physical possession is asserted.

17. In these circumstances and having found no merit in the petition, we are of the opinion that the ad-interim order to maintain status-quo cannot continue. Request made in that behalf is refused.

        (REVATI MOHITE DERE, J.)                  (S.C.DHARMADHIKARI, J.)





     L.S. Panjwani, P.A.