Bombay High Court
Yogacharya Shri Anandji vs Commissioner Of Police And Ors on 31 March, 2016
Bench: Ranjit More
PIL- 165.07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.165 OF 2007
Yogacharya Shri Anandji )
Age: 49 yrs. Occ : Self Employed )
Prop: Yoga Training Centre, )
Ground Floor, 51, Jaihind Society, )
11th N-S Road, JVPD Scheme, )
Mumbai - 400 049. ) ..Petitioner
Versus
1. Commissioner of Police )
Greater Mumbai Police HD.Qtrs. )
Near Crawford Market )
Mumbai - 400 001. )
2. The Urban Development Ministry )
Maharashtra State, Mantralaya, )
Mumbai - 400 032. )
3. The Home Ministry, )
Maharashtra State, Mantralaya, )
Mumbai - 400 032. )
4. The Secretary/Chairman )
(Society registered under Co-op. )
Societies Act) )
Vasundhara Co-op.Hsg.Society Ltd. )
East-West Road No.3, JVPD Scheme, )
Amough Bldg, Mumbai - 400 049. )
5. The Secretary/Chairman )
JVPD Association, )
2nd Floor, Plot No.51, Jaihind CHS Ltd. )
11th N-S RD. JVPD Scheme, )
Mumbai - 400 049. )
6. Shri Hemant M. Shah )
Chairman : M/s. Akruti Nirman Ltd. )
Akruti Trade Centre. RD. No.7, )
Marol MIDC, Andheri (E), )
Mumbai - 400 093. )
patilsr. 1 of 16
::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 11:07:37 :::
PIL- 165.07
7.The Dy.Chief Engineer (WS) )
Municipal Corporation of Mumbai, )
Palika Marg, Mumbai - 400 001. ) ..Respondents
Yogacharya Shri Anandji, petitioner in-person.
Mr. A.B. Vagyani, Government Pleader with Mr. V. N. Sagare, AGP for
respondent Nos. 1 to 3- State.
Mr. P. K. Dhakephalkar, senior counsel with Mr. Chetan Kapadia, Mr. P.
K. Shroff, Mr. D. V. Deokar and Mr. Dhruvesh Parikh i/b. M/s. P. K. Shroff
and Co, advocates for respondent No.4.
Mr. Prateek Seksaria i/b. M/s. Dastur Kalambi and Associates, advocates
for respondent No.5.
Ms. Trupti Puranik, advocate for respondent No.7-BMC.
CORAM
ig : RANJIT MORE &
ANUJA PRABHUDESSAI, JJ.
DATE OF RESERVING JUDGMENT : 2nd FEBRUARY, 2016.
DATE OF PRONOUNCEMENT : 31st MARCH, 2016.
ORAL JUDGMENT. : (Per Ranjit More, J.)
The Hon'ble the Chief Justice, by order dated 5 th
December, 2014, assigned the above PIL along with criminal writ petition
No.1315 of 2010 to this Court for hearing. Accordingly, we have heard
the arguments of the petitioner-in-person and learned counsel
appearing for the respective respondents and closed the matter for
orders. The parties were, however, directed to file short synopsis along
with their written submissions within two weeks. Except respondent
No.4, none of the parties have filed the written submissions within the
patilsr. 2 of 16
PIL- 165.07
stipulated time and, therefore, we are disposing this PIL on the basis of
record and arguments advanced on 2nd February, 2016.
2. By this PIL, which came to be filed on 25 th October, 2007,
the petitioner seeks judicial inquiry to investigate the illegal transaction
of CST Plot No.320 and 194A-2, the circumstances of its de-reservation,
various favours and irregularities practiced at the instance of respondent
No.5, stay of occupation certificate to be granted by the Municipal
Corporation of Greater Mumbai to respondent No.4 and a restraint
order from giving possession of the flats to the members of respondent
No.4-Society. The petitioner is also seeking an order restraining
respondent No.5 from creating third party interest in CST Plot No. 320
located at V. K. Mehta Road, adjoining Juhu Police Station.
3. Though the petitioner claims irregularities in transaction of
CST Plot No.320 and 194A-2, the Division Bench of this Court (Coram :
Swatanter Kumar, C.J. and V. M. Kanade, J.) after hearing the petitioner-
in-person and learned counsel appearing for the respondents passed
the following order :
"1. Dispute in the present Petition relates to
der-eservation of Plot which was reserved for building
police quarters.
2. It is stated on behalf of the respondents that the
patilsr. 3 of 16
PIL- 165.07
Police Station on the part of the property in question has
been fully constructed and is in operation. The post office
for the benefit of public at large is being constructed on the
plot which is under construction and is built up by
respondent No.5 in terms of the agreement with the
Society. We do not wish to entertain any contention in
regard to these two buildings. This fact is made clear to the
Petitioner. However, the basic contention of the Petitioner,
now, is that the major part of the plot which is being used
for building flats of the Police Officers was reserved for
public purpose viz. providing police quarters and de-
reservation of the said plot is a colorable exercise of power
in an arbitrary manner.
3. List this case for final disposal limited to the
contention of the Petitioner in relation to the Police
Quarters which is stated to have been constructed and
occupied. This, of course, is without prejudice to the rights
and contentions of the parties.
4. Stand over to 19/06/2008."
The Division Bench noted that the main grievance of the
petitioner was that the major part of the plot which is being used for
building flats for the police officers was reserved for public purpose
(namely providing police quarters) and the de-reservation of the said
plot is colorable exercise of power in an arbitrary manner and,
directions were given to list the matter for final disposal limited to the
contention of the petitioner in relation to the police quarters.
4. The petitioner-in-person submitted that respondent No.2
has handed over a large piece of prime residential land bearing CST
patilsr. 4 of 16
PIL- 165.07
No.194A-2 on East-West Road No.3, JVPD Scheme, Mumbai - 400 049 to
private society of IPS Officers. This land was originally reserved for
police quarters. He submitted that several irregularities have been
committed in this entire transaction. The petitioner also alleged that
respondent No.2 under suspicious circumstances de-reserved the said
plot in/or about April, 2003, when at the relevant time, the police
department had a pending requirement of over 150 premises for their
various categories of personnel. Thus, the petitioner has taken
exception to the de-reservation of the said plot and handing over of
possession of the same to respondent No.4-private society. It is the
contention of the petitioner that de-reservation and handing over of the
said plot to respondent No.4- private society is a colorable exercise of
power by respondent No.2 and this was done for the benefit of the IPS
Officers who are the members of respondent No.4-private society. The
petitioner submitted that the de-reservation of the plot and handing
over of the same to respondent No.4 was contrary to the procedure
contemplated under the Maharashtra Regional and Town Planning Act,
1966 (for short "the MRTP Act") and that the Government largesse are
given to private persons. The petitioner lastly submitted that the State
Government could have easily auctioned the plot for a hefty price being
at a prime location and it could have easily fetched a great premium
which could have been effectively used for the benefit of police
patilsr. 5 of 16
PIL- 165.07
department.
5. Mr. Dhakephalkar, learned senior counsel appearing for
respondent No.4-private society contested the petition vehemently. At
the outset, he submitted that the petition deserves to be dismissed on
the ground of delay and laches. He submitted that the petitioner has
approached this Court in the month of October-2007 whereas the
complete Occupation Certificate in respect of the building constructed
on the said plot of land was received by respondent No.4 in the month of
April, 2007 itself. He submitted that the petition is not in public interest
but the petitioner has private interest in the litigation. In this regard, he
submitted that the petitioner has a dispute with respondent No.5 with
regard to premises at one Jai Hind Society, a member of respondent
No.5-Association and, therefore, this petition should not be entertained
by this Court. Mr. Dhakephalkar lastly submitted that the petition is filed
as if the said plot is belonging to the Government, however the same is
not correct and the said plot belongs to respondent No.5 and it was
purchased by respondent No.4 for valuable consideration, and
thereafter, encroachment on it was removed by incurring heavy
expenses. He submitted that the said plot was reserved for police
quarters and this reservation was deleted by the competent authority
after following the procedure under Section 50 of the MRTP Act
patilsr. 6 of 16
PIL- 165.07
inasmuch as respondent No.3 - appropriate authority no more required
the said plot for public purpose. He submitted that the petition is devoid
of any merits and ought to be dismissed. Learned counsel appearing for
rest of the respondents adopted the arguments advanced by Senior
Advocate Mr. Dhakephalkar.
6. In R & M Trust Vs. Koramangala Residents Vigilance
Group and ors.(2005) 3 SCC 91, the Supreme Court had held that the
sacrosanct jurisdiction of public interest litigation should be invoked very
sparingly and in favour of vigilant litigant and not for the persons who
invoke this jurisdiction for the sake of publicity or for the purpose of
serving their private ends. The Court held that delay is a very important
factor while exercising extraordinary jurisdiction under Article 226 of the
Constitution. In the facts of that case, the construction was started in
1987 and stopped after the building had come upto three floors in 1988.
In March, 1991, it was resumed after permission was granted and the
writ petition was filed in November, 1991. In the meanwhile,
construction was almost complete. The Supreme Court held that the
delay was fatal. Similarly, in Chairman & MD, BPL Ltd. vs. S. P.
Gururaja and ors. (2003) 8 SCC 567, the allotment made in the year
1995 was challenged in the writ petition filed after one year. By that
time, the appellant company had not only taken possession of the land
patilsr. 7 of 16
PIL- 165.07
but also made sufficient investment. The Supreme Court held that the
delay in that case had defeated equity and the delay of the nature
should be considered to be of vital importance.
7. In the light of the above decisions of the Apex Court, let us
consider the facts of the present case. Since 1974, the plot in question,
viz. CTS. No. 194A-2, was reserved for the police quarters in the
Development Plan. On 21st April, 2001, Respondent No.1- Commissioner
of Police, Brihan Mumbai, communicated that the land is no longer
required for the purpose for which it was reserved in the Development
Plan. On 26th March, 2003, respondent No.3-Home Department
communicated to respondent No.2 -Urban Development Department
that the said land is no longer required for the purpose for which it was
reserved in the Development Plan. On 25 th April, 2003, Respondent
No.2-Urban Development Department , in exercise of powers vested in it
under Section 50 of the MRTP Act, deleted reservation of police quarters
on the said plot. Respondent No.5, being the owner, thereafter
conveyed the said land to respondent No.4 on 14 th May, 2003.
On 4th June, 2004, respondent No.4 submitted building plans which were
duly sanctioned. On 7th August, 2004, IOD dated 14th June, 2004 was
issued and Works Commencement Certificate was received by
respondent No.4. On 12th April, 2007, Full Occupation Certificate in
patilsr. 8 of 16
PIL- 165.07
respect of the constructed building on the said plot was received by
respondent No.4 and the present PIL is thereafter filed on 25 th October,
2007. Thus, the building on the said plot was constructed long before to
the filing of this PIL. In our considered view, the ground of delay and
laches would be sufficient to dismiss this petition, but since the
petitioner is alleging irregularities in de-reservation of the plot, we are
dealing with the petition on merits as well.
8.
The subject matter of the petition are lands bearing C.T.S.
Nos.194A-2, plot No.A/7/3 and plot Nos. 319 and 320 of the JVPD
Scheme. These three plots of land were reserved for the purposes of
police quarters being reservation No.610, Police Station bearing
reservation No.604 and Post Office bearing reservation No.593
respectively in final Development Plan which was sanctioned in the year
1993. This is evident from the notification dated 19 th March, 1993
annexed at "Exhibit - R1" of the affidavit filed by one Sanjay R. Kurve.
The affidavit also discloses that the plot Nos. 319 and 320 continued to
be reserved for the purposes of Police Station and Post Office
respectively and the reservation over plot No.A/7/3(CTS No. 194A-2) was
deleted taking recourse to the provisions of Section 50(2) of the MRTP
Act. Otherwise also, by the interim order dated 24 th April, 2008, the
Division Bench restricted this petition to de-reservation of plot bearing
patilsr. 9 of 16
PIL- 165.07
CTS No.194A-2 which was reserved for police quarters. The reservation
was deleted by taking recourse to the provisions of Section 50(2) of the
MRTP Act. It is the stand of respondent Nos.1 and 3 viz. Commissioner
of Police and Home Department that this plot was not required and,
therefore, deletion of reservation was recommended. Mr. Manohar
Bhoir, Deputy Commissioner of Police (HQ-II), Brihan Mumbai has filed
affidavits dated 11th January, 2008 and 21 st January, 2008 on behalf of
respondent No.1. On behalf of respondent No.3, Mr. Sunil Rawade,
Section Officer, Home Department, Government of Maharashtra, has
filed an affidavit dated 16 th January, 2008. In the above affidavit,
Respondent No.1 has stated that, in pursuance of reservation, the police
station is already constructed on the plot bearing CST No.319 of JVPD
Scheme. It is further stated that, apart from the land bearing CST
No.194A-2, 9 other pieces of land were also reserved for the said
purpose viz. for police quarters and some of these plot of lands are
constructed upon and the police quarters once constructed on those
plots would be substantially sufficient to house the present police force.
Respondent No.1 also averred that sufficient accommodation would be
created for the purpose of police quarters, if these lands are utilised and
constructed upon. In additions to these 9 pieces of land, respondent
No.1 has also given list of 56 other pieces of land which are available to
the Home Department for construction thereupon.
patilsr. 10 of 16
PIL- 165.07
On behalf of respondent No.3-Home Department, an
affidavit is filed by Mr. Sunil B. Rawade, Section Officer, Home
Department on 16th January, 2008. The affidavit shows that the Home
Department vide its communication dated 26 th March, 2003, had
requested the Government to delete the reservation of the land bearing
CST No.194A-2 in accordance with the provisions of Section 50 of the
MRTP Act. The de-reservation was sought considering that the available
land would be sufficient to take care of the needs of police quarters. It
was also stated that it was not possible to acquire land in question as no
budgetary allocation in that regard was made by the Department. It was
averred that the reservation had been imposed for more than 20 years
before the said request was made as the reservation would have lapsed
in case steps were not taken to acquire the same.
On behalf of respondent No.2, affidavits are filed by Mr.
Sanjay R. Kurve, Deputy Director of Town Planning on 15 th January, 2008
and 28th January, 2008. The stand of respondent no.2 is that the plot was
reserved for police quarters for the period exceeding 23 years. If the
original owner had given a purchase notice, the Government would have
faced with an option of acquiring the land at market value. It is the
specific case of respondent No.2 that taking into consideration the
period for which the said land was reserved for public purpose and
other aspects viz. requirement of the Department coupled with the fact
patilsr. 11 of 16
PIL- 165.07
that the Department was facing financial crunch and no allocation of
funds were made for the purpose of acquiring new lands, the
reservation on the said plot was deleted after following the procedure
under Section 50 of the MRTP Act.
9. The dereservation of the plot in question was made taking
recourse to section 50 of the MRTP Act, which reads thus :
"50. Deletion of reservation of designated land for
interim draft of final Development Plan:-
(1) The Appropriate Authority [(other than the Planning
Authority)], if it is satisfied that the land is not or no longer
required for the public purpose for which it is designated or
reserved or allocated in the interim or the draft,
Development plan or plan for the area of Comprehensive
development or the final Development plan, may request-
(a) the Planning Authority to sanction the deletion of such
designation or reservation or allocation from the
interim or the draft Development plan or plan for the
area of Comprehensive development, or
(b) the State Government to sanction the deletion of such
designation or reservation or allocation from the final
Development plan.
(2) On receipt of such request from the Appropriate
Authority, the Planning Authority, or as the case may be, the
State Government may make an order sanctioning the
deletion of such designation or reservation or allocation
from the relevant plan:
Provided that, the Planning Authority, or as the
case may be, the State Government may, before making any
order, make such enquiry as it may consider necessary and
satisfy itself that such reservation or designation or
allocation is no longer necessary in the public interest.
patilsr. 12 of 16
PIL- 165.07
(3) Upon an order under sub-section (2) being made,
the land shall be deemed to be released from such
designation, reservation, or as the case may be, allocation
and shall become available to the owner for the purpose of
development as otherwise permissible in the case of
adjacent land, under the relevant plan."
10. The "Appropriate Authority" has been defined in Section 2(3)
of the MRTP Act to mean any Public Authority on whose behalf the land
is designated for a public purpose in any plan or scheme and which is
authorized to acquire. Since the plot in question was reserved for the
police quarters, respondent No.3- Home Department is the appropriate
authority, on whose request the Planning Authority or the State
Government is authorised to sanction deletion of the reservation after
making enquiry and satisfying itself that such reservation is not
necessary.
11. The affidavits filed on behalf of respondent Nos. 1, 2 and 3
make it clear that request was made by the appropriate authority to the
Government for deletion of the said reservation meant for police
quarters on the said plot on the ground that the said land is no longer
necessary in the public interest. The Government on making
appropriate enquiry, satisfied itself that the reservation is no longer
necessary in the public interest and thereafter passed the order under
patilsr. 13 of 16
PIL- 165.07
Section 50(2) of the MRTP Act by issuing notification dated 25 th April,
2003, a copy of which is annexed to the affidavit dated 11 th January,
2008 filed on behalf of respondent No.1. This notification also reveals
that the appropriate authority has informed that the said land is no
longer required for the purpose for which it was reserved in the
Development Plan and after making enquiry the Government found it
expedient to delete the said reservation. The Petitioner has not
controverted or disputed these affidavits by filing rejoinder.
12. Thus, we find that while deleting the reservation for police
quarters on the land bearing CST No.194A-2, the Government followed
the procedure contemplated under Section 50 of the MRTP Act and,
therefore, no fault can be found in this regard. The said plot thereafter
stood released from such reservation and became available to the
owner viz. respondent No.5 for the purpose of development. As stated
above, respondent No.5 thereafter agreed to transfer the said plot and
entered into conveyance dated 14 th May, 2003 with respondent No.4.
Respondent No.4 thereafter, having obtained requisite permissions,
constructed the building and obtained occupation certificate in April
-2007. We, therefore, do not find any merit in the petitioner's
contention that de-reservation of the said plot is done in a colorable
exercise of power and in an arbitrary manner.
patilsr. 14 of 16
PIL- 165.07
13. Be that as it may, admittedly, the petitioner has a long
standing dispute with respondent No.5 in respect of the premises in one
Jai Hind Society, a member of respondent No.5 Association. The
petitioner had also filed a declaratory suit in the Small Causes Court at
Bandra against Jai Hind Society in respect of ground floor premises of
the building belonging to Jai Hind Society situated at JVPD Scheme. The
suit was dismissed on 19th January, 2004. The petitioner thereafter on
24th March, 2006, and 29th July, 2006 respectively, filed an application
for stay of the impugned order dismissing the suit and an application for
claiming ownership of the articles and things lying in the premises. Both
the applications were dismissed. The petitioner thereafter filed criminal
contempt petition against Jai Hind Society. The said petition was also
dismissed on 20th April, 2006. The petitioner thereafter alleged theft and
house-breaking and approached the police. On failure of the complaint
filed before the police, the petitioner filed the present public interest
litigation in order to exert pressure on the police and respondent No.5.
Thus, we find that the petitioner has private interest in the litigation and
on this point also, the petition deserves to be dismissed.
14. In short, we find that plot bearing CST No.194A-2 reserved for
police quarters was deleted from the reservation by the Government
patilsr. 15 of 16
PIL- 165.07
after following due process of law. That apart, the petition suffers from
gross delay and laches and the petitioner has private interest in the
litigation. The petition is devoid of any merits and the same is
accordingly dismissed.
15. In view of the disposal of main petition-PIL, all civil
applications taken out in this PIL do not survive and same are
accordingly disposed of.
[ANUJA PRABHUDESSAI, J.]
ig [RANJIT MORE, J.]
patilsr. 16 of 16
