Navbharat Potteries Pvt. Ltd vs Municipal Corporation Of Greater ...
2017 Latest Caselaw 3236 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION
                      WRIT PETITION NO.2953 OF 2016


 Navbharat Potteries Pvt. Ltd.                   ..    Petitioner
       Vs
 Municipal Corporation for Greater Mumbai
 and Others.                                     ..    Respondents
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Shri Piyush Raheja along with Sahil Gandhi i/b M/s. Markand Gandhi & Co. for the Petitioner.

Shri S.S. Pakale along with Ms. Vandana Mahadik for the Respondents BMC.

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                                 CORAM  :      A.S. OKA & 
                                               SMT. VIBHA KANKANWADI, JJ

                                 DATED    :    15TH JUNE 2017

 ORAL JUDGMENT ( PER A.S. OKA, J)

1. Heard learned counsel appearing for the Petitioner and

learned counsel appearing for the Respondents- Mumbai Municipal

Corporation.

2. Rule. The Advocate for the Respondents Mumbai

Municipal Corporation waives service. Taken up forthwith for final

disposal.

3. The Petitioner is claiming to be the owner of a plot of land

which is more particularly described in Paragraph 3 of the Petition. It is

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the case of the Petitioner that it carries on business on the said plot of

land. It is an admitted position that in the Development Plan of the

year 1991 sanctioned under Section 31 of the Maharashtra Regional

and Town Planning Act, 1966 ( for short "the MRTP Act"), the said plot

is affected by reservation of 60 feet (18.30 meters) wide Development

Plan Road on two sides i.e. on South and West Side. The Petitioner is

relying upon the alignment of the Development Plan Road in Paragraph

5 of the Petition. On 26th August 1997, the Petitioner was granted

Development permission for construction of additional building. The

case made out in the Petition is that the Petitioner has not taken benefit

of FSI in respect of the Development Plan Road, and therefore, the

condition imposed in the IOD requiring the Petitioner to hand over the

possession of the Development Plan Road/set back area will not apply

in the present case. It is pointed out in the Petition that there is a

massive encroachment on the properties adjoining the said plot of the

Petitioner including the portion of the land reserved for the

Development Plan Road. The Petitioner is relying upon a letter dated

7th May 1999 issued by the Ward Officer granting permission to the

Petitioner to construct two gates. The Petitioner has taken an exception

by this Petition under Article 226 of the Constitution of India to the

letters dated 1st July 2016, 25th July 2016, 8th August 2016 and 20th

September 2016 (Exhibits N, Q, S and U respectively).

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4. Exhibit N is the letter dated 1 st July 2016 addressed to the

Petitioner by the Mumbai Municipal Corporation. By the said letter, the

Petitioner was informed to demolish unauthorized gates constructed on

the portion affected by road line of the road having width of 18.30

metres. Exhibit Q is the letter dated 25 th July 2016 addressed by the

Assistant Engineer (Building Proposal) City-V. In the said letter, it is

specifically mentioned that as per the lay out Condition No.4, the

portion of the Development Plan Road/set back area is to be handed

over by the Petitioner to the Municipal Corporation which is not yet

handed over. It refers to the Development Plan Road having the width

of 18.30 metres . Exhibit S is the reminder dated 8 th August 2016

addressed to the Petitioner by the Municipal Corporation. By the said

reminder, the Petitioner was called upon to demolish unauthorized

gates constructed in the set back road portion. The last impugned

letter at Exhibit U is dated 20th September 2016. By the said letter, the

Petitioner was informed by the Municipal Corporation that as per the

approval dated 27th January 1994 granted by the Department of EE

(BP) City, a part occupation permission was granted in respect of the

developed property. By the said letter, the Petitioner was called upon to

hand over the set back portion on the Development Plan Road failing

which, a seven days' notice under Section 299 of the Mumbai Municipal

Corporation Act, 1888 ( for short "the said Act of 1888") will be issued.

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5. The first submission of the learned counsel appearing for

the Petitioner is that though the letter dated 25 th July 2016 refers to the

layout Condition No.4, in fact, there is no such condition has been

imposed. The second submission is that in the IOD dated 27 th January

1993, the condition imposed is of surrendering the portion of

Development Plan Road provided FSI of the said road is used. He

submitted that no such FSI has been used. He also tendered across the

bar a letter dated 9th April 1997 addressed to the Architect of the

Petitioner by which the proposal for development was sanctioned. He

submitted that the action under Section 299 of the said Act of 1888

cannot be taken as the road line has not been fixed. He submitted that

the Municipal Corporation has no right to compel the Petitioner to hand

over possession of the land covered by the Development Plan Road. He

lastly submitted that the Petitioner is willing to hand over the

possession of the land covered by Development Plan Road to the

Municipal Corporation provided the Municipal Corporation gives an

undertaking to this Court to ensure that there are no encroachments

made on the set back area/the area of the Development Plan Road and

that the Municipal Corporation constructs a Development Plan Road

within a particular time. He submitted that the Petitioner is not under

an obligation to hand over the portion of the land required for the

Development Plan Road to the Municipal Corporation. If the Municipal

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Corporation gives such undertaking, the Petitioner will hand over the

possession thereof.

6. We have given careful consideration to the submissions. It

is true that the first impugned letter dated 1 st July 2016 refers to the

road line of 18.30 metres. However, there is no dispute that the said

plot of land of the Petitioner is affected by the 18.30 metres wide

proposed Development Plan Road in the sanctioned Development Plan

of the year 1991. It will be necessary to make a reference to the

contents of the letter dated 25th July 2010 at Exhibit Q. The said letter

refers to the Development Plan Road. Relevant part of the said letter

reads thus:

"As per layout conditions No.4, the portion of D.P. Road/set back is to be handed over to M.C.G.M which is not yet handed over to M.C.G.M and also not submitted demarcation of said road before C.C. and it is observed that you have constructed the gate at both ends of the D.P. road."

7. The Petitioner replied to the said letter by its letter dated

2nd August 2016. Admittedly, in the reply, the Petitioner has not come

out with the contention that either there is no layout as referred in the

said letter dated 25th July 2016 or that there is no such Condition No.4.

In fact, in the reply dated 2nd August 2016, the Petitioner has not

specifically disputed the existence of the layout Condition No.4. In the

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letter dated 20th September 2016 Exhibit U, the Municipal Corporation

has stated thus:

"With reference to your letter above reference no.3 it is inform you that this office had received your letter dtd. 21st July 2016 & copy of layout plan showing the proposed D.P. road i.e. set back area which is in your possession till year 1999 and also showing the encroachment on proposed D.P. Road i.e. not developed yet. As per available records Navbharat Estate Potteries on plot bearing C.S. No. 5E/172 & 2/173 of Parel Sewree Division had been developed by obtaining approvals from the dept. of EE(BP) City.u/no. EEBPC/3130/FS/A of 27.01.1994. In the said approval Dy. Ch.E.(BP)City had issued part occupation permission to your above reference developed property & also, instructed to obtain necessary permission/NOC and payment of different Pro Rata charges to MCGM by that handing over of peaceful & unencroached setback of DP Road to MCGM by you."

8. The Municipal Corporation has relied upon the approval

granted under the letter dated 27 th January 1994 which requires the

Petitioner to hand over peaceful and unencroached set back area of

Development Plan Road to the Municipal Corporation. We find that a

copy of the approval dated 27th January 1994 referred in the letter

dated 20th September 2016 Exhibit-U has not been produced by the

Petitioner to show that no such condition has been imposed therein. In

the same letter dated 20th September 2016, it is stated that if the

Petitioner fails to hand over the possession, the same will be taken over

by invoking Section 299 of the said Act of 1888.

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9. In the circumstances, we will have to proceed on the

footing that there is no dispute that the layout condition No.4 is

imposed as stated in the letter dated 21 st July 2016. During the course

of submissions, the learned counsel appearing for the Petitioner tried to

submit that the Petitioner's Architect has informed that there is no such

condition. However, he candidly states that he has not personally seen

the layout conditions. As stated earlier, if there was no such layout

condition No.4, the Petitioner would have raised a specific contention to

that effect in the reply to the said letter. In fact, such a case is not made

out in the Writ Petition itself.

10. Therefore, we find nothing illegal about the demand made

by the Municipal Corporation to the Petitioner to hand over that portion

of the land which is covered by the proposed Development Plan Road.

It is not in dispute that the plot of the Petitioner is affected by the

Development Plan Road. We are not entering into the controversy

whether the Municipal Corporation can invoke Section 299 of the said

Act of 188 for taking over the possession of the portion reserved for

Development Plan Road. As of today, no such action is initiated.

Section 299 of the said Act of 1888 requires the Municipal Corporation

to give a minimum seven days notice in writing before taking over

possession. If such notice is issued, the Petitioner can challenge the

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same in accordance with law. As per the layout condition, the Petitioner

is under an obligation to hand over the portion of the plot of land

affected by the said Development Plan Road to the Municipal

Corporation.

11. In the Writ Petition, the Petitioner is relying upon the

permission granted on 7th May 1999 to put up the gates on the portion

covered by the Development Plan Road Reservation. Page 59 of the

Petition is the said permission which imposed a condition which reads

thus:

"1. Whenever the existing road widens as per revised Development Plan, you may shift the same, as per the new alignment, at your cost without claiming any compensation for the same; according to the undertaking submitted by you."

12. Lastly, we may deal with the submission made by the

learned counsel appearing for the Petitioner that the Petitioner is willing

to hand over possession of the area reserved for Development Plan

Road provided the Municipal Corporation gives an undertaking to this

Court to ensure that no encroachment is made on thereon and the

Development Plan Road is constructed.

13. It is the obligation of the Municipal Corporation as the

Planning Authority to implement the Development Plan and to

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construct Development Plan Roads. There is no law which requires the

Municipal Corporation to give an undertaking to the Court to ensure

that there is no encroachment on the portion reserved for the

Development Plan Road. At the same time, it is the statutory obligation

of the Municipal Corporation to see that maximum possible efforts are

made to ensure that no encroachment is made on the site of the

Development Plan Road. However, we cannot issue a direction to the

Municipal Corporation to give an undertaking as contended by the

learned counsel appearing for the Petitioner.

14. The learned counsel appearing for the Petitioner also tried

to contend that notwithstanding the direction issued by this Court, the

Municipal Corporation has not filed any affidavit-in-reply. We have

perused the orders of this Court passed on 15 th October 2016 and 19th

October 2016. There is no direction issued by this Court to the

Municipal Corporation to file an affidavit. The Municipal Corporation

on its own made a statement on 19 th October 2016 that an affidavit will

be filed.

15. In any case, the Petition must fail if we take into

consideration the documents which are annexed to the Petition and

consider the averments made in the Petition.

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16. Hence, there is no merit in the Petition and the same is

accordingly rejected.

17. The ad-interim relief granted on 19th October 2016 will

continue to operate for a period of six weeks from today.

  (SMT.VIBHA KANKANWADI, J)                                    ( A.S. OKA, J )