Bombay High Court
Century Textiles And Industries ... vs The Municipal Corporation Of ... on 14 March, 2022
Bench: S.J. Kathawalla, B.P. Colabawalla
Digitally signed by
SWAROOP
Kanchan P Dhuri SHARAD
SWAROOP
SHARAD PHADKE
Date: 2022.03.14
1 / 83 WP-295-2017Final.docx
PHADKE 21:05:18 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 295 OF 2017
1. Century Textiles and Industries Limited,
a company within the meaning of the
Companies Act, 2013 having its registered
office at Century Bhavan, Dr. Annie Besant
Road, Worli, Mumbai - 400 030.
2. Mr. Hariprasad Shankarish Bale,
residing at 2nd Floor, Room No.47,
BDD Chawl, 59, Worli, Mumbai - 400 018. ... Petitioners
Versus
1. The Municipal Corporation of Greater Mumbai,
a Corporation established under Mumbai
Municipal Corporation Act, 1888, having its
office at Brihan Mumbai Mahapalika Marg,
Mahapalika Building, Fort, Mumbai - 400 001.
2. State of Maharashtra through the Collector
of Mumbai City having his office at Old
Custom House, 3rd Floor, Shahid Bhagat Singh
Marg, Fort, Mumbai - 400 001.
3. Assistant Commissioner (Estate),
Annex Municipal Building, Municipal
Kanchan P Dhuri 2 / 83 WP-295-2017Final.docx
Corporation Head Office, 4th Floor, Fort,
Mumbai - 400 001.
4. Deputy Chief Engineer (Building Proposal)
City, Building Proposal Department (City),
G-1/2, Dosti Venus, Off S.M. Road,
Opp. Dosti Estate, Near Vidyalankar College,
Wadala (East), Mumbai - 400 017.
5. Deputy Municipal Commissioner
(Improvement), Annex Municipal Building,
Municipal Corporation Head Office, 6th Floor,
Fort, Mumbai - 400 001. ... Respondents
.........
Mr. Janak Dwarkadas, Senior Advocate alongwith Mr. Zal Andhyarujina, Ms. Naira
Jeejeebhoy and Ms. Nandini H. Joshi, Mr. Jehangir Mistry and Ms. Namrata Parikh
instructed by Harish Joshi and Co. for the Petitioners.
Mr. J. Reis, Senior Advocate alongwith Ms. Yamuna Parekh and Ms. Rupali Adhate
for the Respondent-MCGM.
Mr. L.T. Satelkar, AGP for Respondent No.2.
.........
CORAM : S.J. KATHAWALLA AND
B.P. COLABAWALLA, JJ.
JUDGMENT RESERVED ON : 4th MARCH, 2022
JUDGMENT PRONOUNCED ON : 14th MARCH, 2022
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JUDGMENT (PER S.J. KATHAWALLA & B.P. COLABAWALLA, JJ.)
I N D E X:
Page
Sr. Nos. Description Nos.
2 Facts leading to the filing of the Writ Petition 4-18
3 The Petitioners' Submissions 18-23
5 Scheme of the Acts 33-36
6 Analysis 36-80
7 Conclusion 80-83
1. INTRODUCTION:
1.1 This Petition inter alia seeks a Writ of Mandamus against Respondent
No. 1 ("MCGM") to (i) recognize Petitioner No.1 / Century Textile and Industries
Limited as the absolute owner of plot bearing C.S. No. 1546 of Lower Parel Division
and the buildings standing thereon (collectively referred to as the "said Premises");
and (ii) to do all such acts and things as may be necessary for formalizing the vesting of
the said Premises in Petitioner No. 1.
Kanchan P Dhuri 4 / 83 WP-295-2017Final.docx
2. FACTS LEADING TO THE FILING OF THIS WRIT PETITION:
2.1 The City of Bombay Improvement Act, 1898 as amended by the City of
Bombay Improvement (Amendment) Act, 1913 (the "1898 Act") provided for poorer
classes accommodation schemes for necessitous employee members. Under Section
32G of the 1898 Act, land and buildings covered by such schemes are leased to
employers for a period of 28 years. As per Section 32I (2) of the 1898 Act, where no
default is made in the conditions of the lease, upon determination of the lease period,
the right, title, and interest in and to the land and the buildings built there upon, would
automatically vest in the employer. Section 32I (2) of the 1898 Act reads as under:
"(2) Where no default is made in the conditions of the lease, then on
the determination of the lease all the right, title and interest of the Board
in and to the dwellings and in and to the land on which the dwellings are
constructed shall vest in the employer free from all liabilities created by
this Act."
2.2 On 12th April, 1918, Petitioner No. 1 applied to the Trustees for the
Improvement of the City of Bombay (the "Trustees") for a scheme to provide
dwellings for poorer classes under Section 32B of the 1898 Act.
2.3 On 16th April, 1918, pursuant to Section 32B (2) of the 1898 Act, the
Trustees passed Resolution No. 121 and proceeded to make a poorer classes
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accommodation scheme which provided (amongst other things) for the acquisition of
land by the board and for construction thereon by Petitioner No. 1 (as Lessee) of 44
blocks of poorer classes dwellings containing 980 rooms and 20 shops.
2.4 Pursuant to Resolution No. 121, on 1st May, 1918, the Trustees notified
the Poorer Classes Accommodation Scheme as Scheme No.51 ("the Scheme").
2.5 On 16th August, 1919, the Sp. Collector appointed by the local
government under the Land Acquisition Act, 1894 acquired the said land admeasuring
57,758 sq. yards from the then owners. A total amount of Rs.1,65,692/- required for
acquiring the said lands were paid over by Petitioner No. 1 to the Improvement Trust
Board. On 13th January, 1919, a sum of Rs. 39,000/- was paid and on 20 th May, 1927, a
sum of Rs. 1,26,692/- was paid by Petitioner No. 1 to the Improvement Trust Board.
These monies paid over by the Petitioner were in turn paid to the owners of these
lands.
2.6 Possession was thereafter handed over to Petitioner No. 1 between the
years 1919 and 1925.
2.7 In 1925, the 1898 Act was repealed and replaced by the City of Bombay
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Improvement Trust Transfer Act, 1925 (the "1925 Act"). Section 4 of the 1925 Act
inter alia provided that the repeal of the 1898 Act shall not affect the validity or
invalidity of anything already done under the 1898 Act. Section 55 of the 1925 Act
required all schemes sanctioned or executed under the 1898 Act to be executed with
due diligence by the Board constituted under the 1925 Act ("Board"). Section 51(2)
of the 1925 Act is similar to Section 32I of the 1898 Act except that it provides for
conveyance of the premises under a scheme instead of automatic vesting of ownership
in the lessee / employer. Section 51(2) of the 1925 Act reads as under:
"Where no default is made by the lessee in the conditions of the lease,
then on determination of the lease at the end of the term thereof the
Board shall convey the premises to the lessee at his cost and free of all
restrictions and liabilities imposed by the lease and by this Act or by the
City of Bombay Improvement Act, 1898."
2.8 On 10th March, 1927, having already constructed 20 blocks containing
476 rooms and 10 shops, Petitioner No. 1 made an application to the Board requesting
it to alter the Scheme under Section 37(2) of the 1925 Act inter alia by:
i discharging Petitioner No. 1 from its obligation to construct further
blocks of rooms on the remaining portions of the said land acquired
for the purposes of the Scheme;
ii to take account of the total costs of the said Scheme incurred by the
Board and to allow Petitioner No. 1 to settle such accounts outright
Kanchan P Dhuri 7 / 83 WP-295-2017Final.docx
by payment to the Board of the sum found due and payable by
Petitioner No. 1 to the Board on taking such accounts;
iii to grant to Petitioner No. 1 a Lease of the said portion of land
admeasuring 30,550 sq. yards or thereabouts on which Petitioner
No.1 had constructed blocks of rooms under the Scheme for a period
of twenty-eight years from 1st April, 1927 at a nominal rent of Rupee
one per annum; and
iv to convey to Petitioner No. 1 the said portion of the land at the
expiration of the term of the lease.
2.9 On 20th May, 1927, Petitioner No.1's agent, C N Wadia and Co.,
addressed a letter to the Board seeking alteration of the Scheme, which letter is
reproduced below:
"With reference to the Committees resolution No 165 dated 24 th March
we beg to request that as we have paid to the board the sums due under
Section 46(3) of the Act, the Committee may be moved to alter the
Scheme under Section 37(2) by the omission therefrom of Blocks B and
C on the accompanying plan.
2. We also request that the Committee will now grant to the
Company a Lease of Block A, for a period of 28 years at a nominal rent of
one rupee per annum as provided in the Act and a conveyance of Block
B.
3. It was arranged in 1923 that Plot C should revert to the Trust.
4. We agree to keep a strip 5 feet in width along the eastern boundary
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of Block A, open and unbuilt upon, to permit the board to lay a sewer
therein should they find it necessary to do so. The Conveyance in
respect of this land to be granted on the expiration of the lease will
also make provision for this.
5. As regards Block B we agree on the following conditions:-
(a)... ...
(b)... ...
(g)... ...
6. It is understood that at the end of the period of lease, Block A is
to be conveyed to us as a freehold land."
(emphasis supplied)
2.10 On 31st May, 1927, the Board agreed to alter the Scheme upon payment
by Petitioner No. 1 to the Board the balance sum of Rs. 1,26,692/- (in addition to Rs.
39,000/- already deposited with the Improvement Trust Board by Petitioner No. 1 in the year
1919), found due by Petitioner No. 1 to the Board on taking accounts of the total cost
of the Scheme incurred by the Board.
2.11 Upon payment of the said amount by Petitioner No. 1, the Board passed
Resolution No.325 dated 31st May, 1927 approving the alteration of the Scheme as
follows:
"Resolution 325. - The Scheme should be and the same is hereby altered
by the exclusion of Blocks B & C on the Estate Agent's plan No. 98
dated 17th May 1927.
2. A lease of Block A for a period of 28 years should be granted to
the Company on the terms mentioned in paras 2&4 of Messrs. C. N.
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Wadia's letter dated 20th May 1927..."
2.12 On 10th January, 1928 Block B i.e. land bearing C.S. No. 1545 was
conveyed to Petitioner No. 1. Block C was reverted to the Trust.
2.13 On 3rd October, 1928, the Board granted the lease of the premises
comprising Block A (now Cadastral Survey No. 1546) together with 22 buildings
thereon consisting partly of 20 blocks of dwelling houses to Petitioner No. 1 for a
period of 28 years w.e.f. 1st April, 1927 at a yearly rent of Re.1 /-. In the recital to the
lease, the fact that prior to the execution of the lease, Petitioner No. 1 had met with its
obligation of constructing dwellings for poorer classes accommodation, has been
acknowledged and recorded. The lease deed inter alia refers to the foregoing facts as
well as the provisions of the 1898 Act and the 1925 Act. In particular, whilst referring
to the date on which the lease commences, the lease deed states that the Board has
fixed this date "pursuant to Section 32H of the said Act as amended by Section 48 of the
said City of Bombay improvement Trust Transfer Act, 1925". The lease was to expire on
31st March, 1955.
2.14 It is the Petitioner's case that:
(i) in October 1954, BMC's Estate and Land Management Department
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prepared a Site Plan of Scheme 51 (viz. the Scheme in question) and the
same bears the following legend:
"Block A leased for a period of 28 years expiring on 1-04-1955
under lease dated 3-10-1928 (to be conveyed thereafter)"
(emphasis supplied by the Petitioner)
(ii) The 28-year lease period expired on 31st March, 1955.
(iii) Petitioner No. 1 has been in uninterrupted possession of the said
Premises even after expiry of the lease.
(iv) On 7th December, 1961, MCGM, keeping in mind the provisions of
Section 51(2) of the 1925 Act, prepared a "Conveyance Plan" on which is
depicted the said Premises, referred to as "Block A" which forms part of
Scheme 51.
(v) In or around 1986, Petitioner No. 1 applied to Respondent No. 1 for a
NOC for amalgamation of Plots bearing C.S. No. 1545 (Block B) and
1546 (Block A).
(vi) An Internal Note dated 26th July, 1986 was addressed from the Ward
Officer (Estates) to the Law Officer (I) of Respondent No. 1. The
relevant extract is reproduced hereinbelow:
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"As per the provisions in the lease the land is to be conveyed to
the lessee on expiration of the term of 28 years which means that
on expiry of the term the land will no longer remain as lease land
and no control so far as this department is concerned can be
exercised. (Portion side-lined 'A' at Page 7-8) "
(vii) An internal Note dated 3rd September 1986 (sic) was addressed from the
Deputy Law Officer to the Ward Officer (Estates). The relevant extract
is reproduced hereinbelow:
"... ...Originally the plot bearing No. C.S. No.1946 belonging to
Improvement Trust in respect of which the lease is executed for a
period of 28 years. After the expiry of the period of lease, there is
covenant to convey to the lessee the portion of the land. The lease
period expired after 28 years from the 1st day of April 1927.
Thereafter, as stated in your note, the Corporation is not entitled
to recover nominal rent and the Corporation will no longer remain
as lessor and have no control over the property........ ... ....Since
the company is in possession unobstructed for more than 25 years
after the expiry of the lease period, corporation has no objection
to proposal of amalgamation of C.S. Nos.1545 & 1546. We may
therefore give our N.O.C. for the proposed amalgamation subject
to the company's agreeing to execute the Deed of
Conveyance....."
(viii) On 10th September 1987, MCGM wrote a letter to Petitioner No. 1, the
relevant extract of which is reproduced hereinbelow:
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"..... I have to inform you that the land comprised in C.S. No.
1546 of Lower Parel Division is leased for a term of 28 years from
1st April, 1927. On expiry of the said lease term, the property in
question is to vest in the Mill by a Conveyance which is not yet
prepared. Though the Conveyance is not prepared in respect of
the land on expiry of the lease period, the Mill is in possession of
the entire land for the last over 25 years and therefore, it has
acquired the possessory title to the said land....."
(ix) Petitioner No. 1 was informed by MCGM that if it wished to
amalgamate the said land with another plot, Petitioner No. 1 should
formalize its title. MCGM suggested two ways in which this could be
done - (a) by entering into a Deed of Conveyance; or (b) by entering
Petitioner No. 1's name on the Property Register Card (without a
Conveyance), if the Collector of Bombay effects the change on the
strength of a declaration by Petitioner No. 1.
(x) On 17th September, 2008, MCGM responded to an application dated 12 th
September 2008, filed under the Right to Information Act 2005 through
the architects of Petitioner No. 1, stating that as per its records, plot
bearing C.S. No. 1546 (Block A) of Scheme 51 is free hold land and
conveyed and that no lease rent has been collected since the land is
conveyed to Petitioner No. 1. The relevant extract of the Asst. Engineer
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(Imp) Estates, Public Information Officer's letter is reproduced as
under:
"...In this connection, this is to inform you that as per this office
record Conveyance Plan No.277 dtd.07.12.1961, the plot bearing
C.S. No.1546, Sch.51 is free hold land and conveyed. The
available documents such as plan, extract of conveyed book will be
made available on payment of schedule charges. ..."
(xi) Pursuant to the Development Control Regulations being amended
requiring the mill industry to be shifted out, Petitioner No. 1 closed the
mill operated by it in the year 2008. By 2009, since the structures
standing on the said Premises occupied by the ex-mill workers had
outlived their life and were in a dilapidated condition, the Petitioners
were desirous of rehabilitating the ex-mill workers in a newly
constructed building on the said Premises. Accordingly, Petitioner No. 1
made an application for re-development to MCGM and the IOD and
Commencement Certificate were issued for redevelopment of plots
bearing C.S. Nos. 1545 (Block B) and 1546 (Block A).
2.15 On 17th March, 2011, an Integrated Development Scheme ("IDS")
approval was granted to Petitioner No.1 for developing C.S. No.1546.
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2.16 The land to be handed over to MCGM for recreational ground ("RG")
under the IDS is located partly on lands bearing C.S. Nos. 1545 (Block B) and 1546
(Block A). Accordingly, it is the Petitioner's case that in order to surrender the land
reserved for RG, Petitioner No. 1 requires formal title to the said land bearing C.S. No.
1546. Petitioner No. 1 therefore approached MCGM for a conveyance. When MCGM
was unresponsive, Petitioner No. 1 approached the Collector on the strength of
MCGM's letter dated 10th September 1987. The Collector expressed its willingness to
enter Petitioner No. 1's name in the Property Register Card, provided the letter of 10 th
September 1987 was reconfirmed by MCGM. Petitioner No. 1 therefore approached
MCGM for the same, but again received no response.
2.17 Thereafter, in response to its RTI Application, Petitioner No.1 received
the Internal Report dated 17th June 2013 made by the Assistant Commissioner (Estate)
in which he has opined that the said premises should not be conveyed to Petitioner
No. 1.
2.18 On 13th March 2014, a meeting was held between Petitioner No. 1 and
Respondent No. 1 wherein the various objections of MCGM were discussed and
clarified. Pursuant to the meeting, by way of its letter dated 27 th March 2014,
Petitioner No. 1 once again requested MCGM to execute a formal Deed of
Conveyance and to confirm the letter of 10th September, 1987. When Petitioner No.1
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received no response, the Petitioners addressed a follow up letter dated 30 th November
2016 to MCGM calling upon it to execute the formal Deed of Conveyance within 15
days. Once again, there was no response.
2.19 On 23rd December 2016 the Petitioners filed the present Petition.
2.20 On 11th January 2017, MCGM replied to Petitioner No.1's letter dated
30th November 2016 stating that its letter has been forwarded to the Law officer of
MCGM for a legal opinion and that the matter will be dealt with accordingly.
2.21 On 29th June, 2017, pursuant to an RTI application, Petitioner No. 1
received certain documents, one of which was an Internal Directions Note bearing No.
A.C/Estates/5815/A.E. (1)-IV dated 12th June 2017 ("Direction Note") issued by
Respondent No.3 to Respondent No.4. In the said Direction Note, the following
paragraph is marked 'A':
"Dy.ChE(BP) City is therefore requested not to issue any permission in
the subjected proposal without NOC from Estate Department , stop the
ongoing work if any and put up the case to Hon'ble M/C for obtaining
sanction for cancellation of the Layout approval for the I.D.S. granted
u/no. EB/3086/GS/a dt. 17/3/2011 and any subsequent approvals
thereof, immediately please."
2.22 MCGM's Deputy Municipal Commissioner (Improvements) has
endorsed the recommendation in the Direction Note and has directed as follows:
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" DCE B.P City
In view of the report of A.C.Est please do 'A' above in next 15
days and submit compliance thereof."
" A.C.Est
Please follow up and get compliance done"
2.23 The Direction Note dated 12th June, 2017 relies upon MCGM's Affidavit
in Reply and states that the same has been filed. However, the Petitioners contend that
the Affidavit in Reply was not served on the Petitioners until 8 th June, 2017 and filed
until 28th July, 2017.
2.24 On 30th June, 2017, the Petitioners moved a Chamber Summons to
amend the Petition so as to challenge the Direction Note and to seek ad-interim and
interim reliefs against the proposed action. By an order dated July 28, 2017, a bench of
this Court comprising of A.S. Oka and Vibha Kankanwadi JJ, permitted the
amendment of the Petition.
2.25 In the meanwhile, on 3rd July 2017, this Court passed an order recording
the statement made on behalf of MCGM as follows:
"Learned senior counsel appearing for the first respondent states that an
action of cancellation of layout approval shall not be taken without issuing
a show cause notice to the applicants and without giving an opportunity of
being heard to them. We accept the statement. Hence as of today, no ad-
interim relief need be granted."
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2.26 On 28th March 2018, Petitioner No. 1 received a Show Cause Notice
from MCGM calling upon it to show cause as to why the amended IDS Layout should
not exclude plot bearing C.S. No. 1546. In its Direction Note dated 12 th June 2017 and
Show Cause Notice dated 15th February 2018, Respondent No. 1 has alleged that the
documents relied upon by Petitioner No. 1 are "non-authentic" and "null and void".
In the Show Cause Notice, MCGM has stated that the documents used by Petitioner
No.1 were given to it "without obtaining sanction from the competent authority i.e.
Improvement Committee and Corporation" and "It is in violation of the MMC Act as the
Improvement Committee and Corporation are only legally empowered to decide and sanction
the conveyance of Municipal land to a private entity. The statutory powers of Improvement
Committee / Corporation cannot be delegated nor circumscribed by any authority including
Municipal Commissioner or any of his officers especially in light of the clear directives of the
Improvement Trust vide above said Resolution No. 325 of 31st May 1927".
2.27 On 4th April 2018, the Petitioners filed second Chamber Summons to
amend the Petition to challenge the aforesaid Show Cause Notice and to seek ad-
interim and interim reliefs against the proposed action. On 12 th April 2018, a bench of
this Court comprising of S.C. Dharmadhikari and Prakash D. Naik JJ passed an order
allowing amendment of the Petition and in view of the pendency of the Petition,
directed Respondent No. 5 not to proceed to adjudicate the Show Cause Notice until
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further orders.
2.28 Following the aforesaid, this Petition was heard finally by us and
reserved for orders.
3. THE PETITIONERS' SUBMISSIONS :
3.1 Appearing for the Petitioners, Senior Advocate Mr. Janak Dwarkadas,
submitted that the Petitioners had applied for the Scheme to provide dwellings for the
poorer classes and expended large amounts inter alia on the basis of the representation
and promise made by virtue of the provisions of the Act that the said Premises would
vest in Petitioner No.1 on expiry of the lease. The Respondents are therefore,
estopped from acting contrary to the provisions of the 1898 Act and 1925 Act to the
prejudice of the Petitioner.
3.2 That a total amount of Rs. 1,65,692/- required for acquiring the said
lands was paid over by Petitioner No. 1 to the Improvement Trust Board.
3.3 That prior to the repeal of the 1898 Act, the following acts had already
taken place:
i Resolution No. 121 came to be passed on 16th April, 1918;
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ii Scheme No.51 came to be notified on 1st May, 1918;
iii The lands in question were acquired on 16 th August, 1919 by the Sp.
Collector and handed over to the Improvement Trust Board who in
turn handed over the same to Petitioner No.1;
iv Petitioner No.1 deposited a substantial sum of monies in 1919;
v Petitioner No.1 commenced construction of 20 blocks containing 476
rooms and 10 shops on the portion of the said Premises in question;
vi Petitioner No.1 paid the balance substantial amount for acquisition of
the said premises in the year 1927.
3.4 That the savings provisions in Sections 4 and 55 of the 1925 Act, with
regards to the acts already done by Petitioner No.1 under the provisions of the 1898
Act apply to this case. That as per Section 4 of the 1925 Act, the repeal of the 1898 Act
shall not affect the validity or invalidity of anything already done under the same.
3.5 That Section 55 of the 1925 Act requires "all schemes sanctioned" under
the 1898 Act to be executed with due diligence by the Board constituted under the
1925 Act.
3.6 That Petitioner No. 1 is therefore entitled to the benefit of the vesting of
the said Premises at the end of the lease period of 28 years by virtue of Section 32(I)
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(2) of the Act.
3.7 That when Resolution No.325 dated 31st May 1927 is read in its proper
context with the letter dated 20 th May 1927 addressed by C N Wadia and Co. to the
Board and in consonance with the provisions of the 1925 Act, in particular Section
51(2) thereof, the correct legal position would emerge that Resolution No.325
expressly approves of paragraph no. 4 of the said letter.
3.8 That from the letter dated 20th May 1927 addressed by C N Wadia and
Co. to the Board, it is clear that the alteration sought was only the omission of Blocks
B and C from the ambit of the Scheme. That Block A (which is the subject matter of the
present Petition) continued to be covered by the Scheme. That paragraph no. 2 of the
said letter makes it clear that the Lease was to be granted as envisaged by the Act.
That the 1925 Act requires the conveyance of the said Premises on the expiry of the
lease.
3.9 That by Resolution No.325, the Board approved the amendment /
alteration of the Scheme only to the extent of excluding Blocks B and C. That the
provisions of the 1898 Act applicable to Poorer Classes Accommodation Schemes
would, therefore, continue to apply to Block A, now C.S. No.1546, under Scheme 51,
including the provision for conveyance on expiry of the Lease.
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3.10 Petitioner No.1 applied for alteration of the Scheme under Section 37(2)
of the 1925 Act because, owing to the construction by the Development Department
of a very large number of rooms in the immediate vicinity, more than sufficient
accommodation was available and it became inexpedient in the circumstances to
proceed with further construction.
3.11 That the definition of the term 'premises' included both land and
buildings and therefore Section 51(2) of the 1925 Act, would provide for conveyance of
both, land and buildings built thereupon. That the Lease deed also demises unto the
Petitioners land together with the buildings and refers to the land bearing C.S.
No.1546 viz. Block A. That the scheme also refers to Land and building constructed
thereon and Section 47(2) of the 1925 Act includes cost of land and building in the
cost of the Scheme, which has been duly paid by the Petitioners.
3.12 That since the word "premises" is not defined in the 1925 Act, reference
must be made to Section 5 of the 1925 Act which provides that in the 1925 Act, unless
there be something repugnant in the subject or context, words shall be deemed to have
the meaning ascribed to such words under the City of Bombay Municipal Act, 1888.
3.13 Since the definition of "premises" under Section 3 (gg) of The Mumbai
Municipal Corporation Act, 1888 includes buildings and lands, the conveyance of
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"premises" referred to in Section 51(2) of the 1925 Act would tantamount to
conveyance of the Land and Buildings. Section 48(a) of the 1925 Act refers to "demised
premises", however Section 51(2) refers to only "premises" since the land would be
deemed to be vested if there is no default in the lease.
3.14 That the contents of the Preamble of the 1925 Act shows that the said
Scheme is of a public nature and is beneficial to the public. That since Petitioner No.1
has carried out construction under the Scheme and paid for the cost of acquisition
they are entitled to the conveyance, not only of the building, but also of the land. That
the proviso to Section 47(5) of the 1925 Act states that "...in the event of the employer
having paid to the Board under the last preceding section the whole of the cost of the scheme,
the rent shall be Re.1 per annum" and since Petitioner No.1 has paid the money for
acquisition, the rent, until vesting after the lease period is over, is only Re.1 per
annum.
3.15 That the scheme provides for application by an employer employing
members of poorer classes and therefore the scheme is to enable the "employer" to
provide accommodation to his "employees who belong to the poorer classes". That the said
scheme is for the benefit of the employer to inter alia accommodate his employees of
the poorer classes and since the employer has paid for acquisition of land under the
scheme, the Rent is Re.1 per annum and nothing more.
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3.16 That on the expiry of the lease and on account of there being no default,
the land and buildings vested in Petitioner No.1 under the provisions of the 1898 Act.
3.17 That Petitioner No.1 has been in uninterrupted and undisputed
possession of the said land and buildings. No lease rent has been paid by Petitioner
No.1 or even been demanded by Respondent No.1 after determination of the Lease.
This is because the said Premises vest in Petitioner No.1 as the absolute owners
thereof.
3.18 That by granting the IOD and Commencement Certificate in respect of
plots bearing C.S. No.1545 (Block B) and 1546 (Block A), Respondent No.1 has
acknowledged that the said land vests in Petitioner No.1.
3.19 That the Show Cause Notice is a weak attempt to wriggle out of the
admissions made in Respondent No.1's own documents.
3.20 That in view of the above submissions, Petitioner No.1 is entitled to a
formal conveyance of the said Premises by Respondent No.1 in favour of Petitioner
No.1.
4. RESPONDENT NO.1'S SUBMISSIONS:
4.1 Appearing for Respondent No.1 / MCGM, Senior Advocate Mr. Reis,
Kanchan P Dhuri 24 / 83 WP-295-2017Final.docx
submitted that in the instant case, the initial Scheme of construction of rooms was
approved in 1918 and therefore it was under the old Act of 1898 as amended by the Act
of 1913. The Petitioners' Application for altering the Scheme was made in 1927 and it
is therefore governed by the 1925 Act. That the prelude to claiming benefit under the
old Act of 1898 as amended by the Act of 1913 is the construction of the dwelling units
for members of poorer classes. The Petitioners having been duly compensated for
construction of 476 tenements, obtained conveyance of Block "B" in 1927-28 itself,
where admittedly there was no construction for poorer classes and the aforesaid Block
"B" was conveyed at the request of the Petitioners in view of the amended / altered
Scheme. The Respondents contend that the Petitioners have been duly compensated
and nothing further remains to be granted to them.
4.2 That even if there is any legal right, the entire action was under the 1925
Act and not under the 1898 Act (as amended by the Act of 1913). That there is no
public interest involved. That unlike Section 32I of the 1898 Act (as amended by the
1913 Act), there is no clause of vesting of property under the 1925 Act. That under
Section 32I of the 1898 Act (as amended by the 1913 Act), there is a provision of
vesting of the land and dwellings, whilst under the 1925 Act, Section 51(2) provides
for the Board to convey the premises. The layout for the aforesaid land, as approved by
the Building Proposal, includes a Recreational Ground on part of Block "A".
Kanchan P Dhuri 25 / 83 WP-295-2017Final.docx
4.3 That the word "premises" is not defined in the 1898 Act (as amended by
the 1913 Act) or the 1925 Act. That Section 48(a) speaks about duty of the Lessee to
keep the premises together with their fixtures in good and substantial repair and
condition. Therefore, the reference to repairing lease in Section 47(4) and reference to
fixtures in Section 48(a) would clearly show that what is contemplated is the lease of
buildings / dwellings and not the land. That the interpretation given by the Petitioners
is not sustainable since Section 5 of the 1925 Act makes it clear that unless there is
something repugnant in the subject or context, words shall be deemed to have the
meaning ascribed to such words in the City of Bombay Municipal Act, 1888. That
Section 42(3) states in clause (b) therein that the scheme shall provide for giving of
lease to the employer of the dwellings so constructed and of the other accommodation
provided in the scheme. A perusal of the said section would show that there is an
express exclusion of the word "land" and therefore the intention of the legislature is to
exclude the lease of the land and restrict the lease only to buildings. That Section 48(a)
obliges leaving the demised premises together with their fixtures in good and
substantial repair and condition. That on a reading of Section 42(3)(b), 47(4) and
48(a), the intention of the legislature of granting lease of only buildings would be clear
and therefore the recourse to Section 5 of the 1925 Act for referring to the definition of
premises under Section 3(gg) of the City of Bombay Municipal Act, 1888, would be
Kanchan P Dhuri 26 / 83 WP-295-2017Final.docx
repugnant to the objective of provisions of the 1925 Act as set out above. Further, that
the Petitioners' submission that Section 48(a) refers to "demised premises" whereas
Section 51(2) refers to only "premises" is incorrect.
4.4 That Section 4 of the 1925 Act provides for repeal of the 1898 Act,
which will also repeal the amendments carried out in 1913. That Section 4(a) of the
1925 Act only saves anything already done under the Act of 1898. That by having not
discharged their (Petitioners') duty of completion of the Scheme as contemplated
under the 1898 Act (as amended in 1913) and by not constructing the originally
proposed residential and shop premises, any right that otherwise would have accrued
to the Petitioner has not accrued at all. That due to the repeal of the 1898 Act as
amended by the 1913 Act, and subsequent alteration of the Scheme, contrary to the
provisions of the 1925 Act, the Petitioner's cannot claim any vesting or right to
conveyance of Block "A".
4.5 That Resolution No.325 to alter the Scheme, does not contemplate
attracting any provisions of the scheme for poorer employees, since the construction
of the originally proposed Rooms has been given up by the Petitioners, they cannot
claim any rights under the Poorer Classes Scheme. That by their conduct and writings,
they have not discharged their obligations as obliged to be discharged under the
Kanchan P Dhuri 27 / 83 WP-295-2017Final.docx
Scheme for the Poorer Employees.
4.6 That the Petitioners attempt to read and interpret vesting in Section
47(5) of the 1925 Act is incorrect and goes beyond the intention of the legislature. In
view of application of the Petitioners to alter the Scheme after constructing only 476
rooms, the Scheme cannot be under any circumstances be called a scheme for poorer
classes but a scheme alien to and beyond the same. That, therefore, the contentions of
the Petitioners that the property is vested in the Petitioners based on a letter by some
officer of Respondent No.1, are without any substance and without any force in law.
4.7 That under Resolution No.325 of the Board (whereby the alteration of the
Scheme was approved), it is very clear that Paragraph 6 in the Petitioner's letter to the
Board (C N Wadia and Co's letter to Board dated 20 th May 1927) asking for conveyance
of Block "A" is not granted and only conveyance of Block "B" was granted. That this
Resolution No. 325 makes it abundantly clear that Block "A" was given on lease and
Paragraph 2 of the 20th May, 1927 letter (C N Wadia and Co's letter to Board) makes it
clear that C N Wadia and Co wanted the lease of Block A and conveyance of Block B.
Paragraph 4 of the aforesaid letter of the Petitioners does not speak about conveyance
in favour of Petitioner No.1, but it deals with a strip of 5 feet in width along the eastern
boundary of Block A, open and unbuilt upon, and to permit the Board to lay a sewer
Kanchan P Dhuri 28 / 83 WP-295-2017Final.docx
therein. That the context is completely different. That Resolution No.325, having
accepted only Paragraphs 2 and 4 of the letter dated 20 th May, 1927, Paragraph 6 which
speaks about Conveyance of Block "A", is deemed to be rejected. That when
Paragraph 6 is not granted, the Petitioners cannot indirectly rely upon Paragraph 4 to
contend that under Paragraph 4, they are entitled to a conveyance. That the Board by
Resolution No.325, not having accepted Paragraph 6, being one of the root clauses of a
conveyance in favour of the Petitioners, has rejected the aforesaid request of the
Petitioners. That admittedly, the Petitioners completed only 50% of the poorer classes
accommodations as originally proposed in the year 1918 under the Poorer Classes
Accommodation Scheme; therefore, unless the Board accepted and granted
conveyance, the Petitioners could never get title to Block "A". That having
constructed only little less than 50% of poorer classes accommodations, the Petitioners
cannot ask for a right to the entire property. Even otherwise, it will be inequitable to
give largess of public property to a private party like the Petitioners when contrary to
what was envisaged initially, the Petitioners got title to the portion of 14,101 sq. yds in
Block "B" which otherwise under the provisions of both the Acts, they will not be
entitled to since they have not completed the Scheme and had it altered at their
request. Furthermore, the Act of 1925 does not envisage any conveyance.
4.8 That the Lease Deed dated 3rd October, 1928 does not recite that a
Kanchan P Dhuri 29 / 83 WP-295-2017Final.docx
conveyance would be executed after the expiry of the lease period. At page 2, in the
second recital, it is mentioned that the Petitioners on 20 th May, 1927 sought alteration
of the Scheme. It speaks about the requests made by the Petitioners including the
request to convey the leased portion of land after the expiry of the lease. Thereafter,
reference is made to Resolution No.325. That while the said recital makes a reference
to the lease, it does not mention that the parties understood or agreed to convey Block
"A" to the Petitioners. That Clause 4 records the covenants by the Board and it
mentions very clearly that the lessees can enjoy the property only during the term of
the lease and nothing more. That, therefore, looked at from any angle, the Petitioners
are not entitled to any conveyance of the said Premises.
4.9 That disputed questions of title cannot be decided in a Writ Petition.
Reliance was placed on the decision in State of Rajasthan vs. Bhawani Singh and
Others.1 in support of this proposition. That as has been held by the Full Bench of this
Court in the matter of Tulsiwadi Navnirman Coop. Housing Society Ltd. And Ors.
Vs. State of Maharashtra and Ors.2, the plenary and constitutional jurisdiction of this
Court is not to replace the ordinary remedy of a civil suit or statutory remedy and
ought not to be exercised in cases involving serious disputes about the right to claim
relief.
AIR 1992 SC 218
2008 (1) All MR 318
Kanchan P Dhuri 30 / 83 WP-295-2017Final.docx
4.10 The Writ Petition is not maintainable on the ground of delay and latches.
That there is complete inaction on the part of the Petitioners from 1955 to 2016 and
therefore, the Petition ought not to be entertained. Reliance was placed on the
decisions in State of Maharashtra vs. Digambar3, Srinivas Bhat vs. A. Sarvothama
Kini4 and Apurva Natvar Parikh & Co. Pvt. Ltd. Vs. The State of Maharashtra &
Ors.5 to deny relief to the Petitioners on the ground of delay and latches.
4.11 That Petitioner No.1 had admittedly issued a notice under Section 527 of
the MMC Act, however, it chose not to file a Suit within 6 months from the date of the
said notice and therefore, Petitioner No.1 cannot now avail the remedy of a Writ
Petition. The limitation being six months, even a Suit will now be barred by limitation.
4.12 That the Petitioners, in the absence of discharging their public duty,
cannot seek the benefit of the original Scheme of having both Blocks "A" and "B",
conveyed to them. This is not the object of Resolution No.325, and the Petitioners
cannot be allowed to enjoy the property given to a public body. In any event, the
Petitioners do not wish to continue to provide Poorer Classes Accommodation and
have submitted Plans for altering the use of the land for commercial exploitation.
(1995) 4 SCC 683
AIR 2010 SC 2106
MANU/MH/3432/2018
Kanchan P Dhuri 31 / 83 WP-295-2017Final.docx
4.13 That the Petitioners rely upon 5 documents of Respondent No.1 to
contend that Respondent No.1 admits that Block "A" has to be conveyed in favour of
the Petitioners. However, Respondent No.1 objects to these documents on the
following grounds:
(i) The first document relied upon by the Petitioners is a Note dated 26 th
July, 1986. The third paragraph of the Note mentions that relevant
papers in connection of the lease are not available. That in spite of the
same, an opinion has been given relying on the Indenture of Lease in the
following paragraph. That the Note is signed by some person "for Ward
Officer" in 1986. That the same person has also signed another letter
"for Ward Officer" on 10th September, 1987. Therefore, this document
appears to be "suspicious".
(ii) Paragraph no. 2 of the letter at page 94 of the Petition speaks about
covenants in the Lease Deed to convey the land and about the
Petitioners purportedly acquiring possessory title to the land. Both these
bases are wrong and without foundation.
(iii) That the letter dated 10th September, 1987 speaks about the property
vesting in the Petitioners due to the purported possessory title acquired
by the Petitioners due to long possession even after expiry of the lease.
That the same is incorrect.
(iv) That Page 100 of the Petition relied upon by the Petitioner is the
Kanchan P Dhuri 32 / 83 WP-295-2017Final.docx
information given under the Right to Information Act, 2005. That this
information is absolutely without any truth since, contrary to what is
reflected therein and admittedly, C.S. No.1546 is leasehold property
leased to the Petitioners and therefore not conveyed.
(v) That the Petitioners have relied upon an unsigned Plan bearing No.277
dated 7th December, 1961. This Plan was not signed by the
Commissioner.
4.14 That in terms of this Court's order dated 3 rd July, 2017, a Show Cause
Notice was issued to the Petitioners but they have not replied to the same and have
instead approached this Court with an amendment and for a stay on the proceedings in
respect of the Show Cause Notice. That the Petitioners should be directed to file a
reply to the Show Cause Notice and Respondent No.1 will give a hearing to the
Petitioners before arriving at its decision.
4.15 That the present Petition cannot be considered to be a Petition for
discharge of a statutory duty of public nature or in public interest as contended by the
Petitioners. That this is not a Petition like those under the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer)
Act 1963 or the Real Estate (Regulation and Development) Act, 2016, where
conveyance is sought for a class of society of occupants who have purchased flats in
Maharashtra. That, therefore, there is no reason for this Court to exercise jurisdiction
Kanchan P Dhuri 33 / 83 WP-295-2017Final.docx
under Article 226 of the Constitution of India.
4.16 Therefore, in view of the aforesaid submissions, Respondent No.1
concluded that the Petitioners have not made out any case for the reliefs sought and
the Petition be dismissed with compensatory costs.
5. SCHEME OF THE ACTS :
5.1 Prior to dealing with the arguments canvassed by the parties, it would be
necessary to understand the scheme, scope, and ambit of the 1898 Act (as amended in
1913) and the 1925 Act.
5.2 The 1898 Act was enacted for the purpose of making improvements to
the city of Mumbai and to provide space for its future expansion. It inter alia also
provided for the construction of new sanitary dwellings for certain classes of
inhabitants of the City. The preamble of the Act is set-out below:
"WHEREAS it is expedient to make provision for the improvement and
for the future expansion of the City of Bombay, by forming new and
altering existing streets, by removing or altering insanitary buildings in
certain areas, by providing open spaces for better ventilation and for
recreation, by constructing new sanitary dwellings for certain classes of
the inhabitants of the said City and for the Presidency Police, by laying out
vacant lands and by reclaiming and laying out parts of the foreshore of the
Island of Bombay; and whereas it is expedient that a Board of Trustees
Kanchan P Dhuri 34 / 83 WP-295-2017Final.docx
should be appointed and endowed with special powers to carry out the
aforesaid purposes in the manner and subject to the restrictions and
conditions hereinafter specified and whereas it is proposed that certain
lands and reclamation rights shall be vested in the Board in the manner
hereinafter appearing, and whereas the plans of such last mentioned lands
have been deposited with the Collector of Bombay and are hereinafter
referred to as the deposited plans;"
5.3 Bombay Act No. 1 of 1913 amended the 1898 Act and amongst other
things, introduced a new provision titled "Poorer Classes Accommodation Schemes".
Thereafter, The City of Bombay Improvement Trust Transfer Act, 1925 repealed the
1898 Act.
5.4 The 1925 Act also provides for poorer classes accommodation schemes,
in terms pari materia to those under the 1898 Act. Under the 1925 Act, the powers of
the Board of Trustees constituted under the 1898 Act including the properties vested
in the Board and the duties of carrying out the purposes as specified in the 1898 Act,
were transferred to the Municipal Corporation of the City of Bombay. The relevant
portion of the preamble of the 1925 Act is as follows :-
"An Act to transfer the powers and duties of the Trustees for the
Improvement of the City of Bombay to, and to vest the property and rights
vested in the said Trustees in the Municipal Corporation of the City of
Bombay. WHEREAS the City of Bombay Improvement Act, 1898, was
enacted with a view to make provision for the improvement and for the
future expansion of the City of Bombay by forming new and altering
existing streets, by removing or altering insanitary buildings in certain
Kanchan P Dhuri 35 / 83 WP-295-2017Final.docx
areas, by providing open spaces for better ventilation and for recreation, by
constructing new sanitary dwellings for certain classes of the inhabitants
of the said city and for the Bombay City police, by laying out vacant lands
and by divers other means; And whereas a Board of Trustees endowed
with special powers was constituted under the said Act for the aforesaid
purposes and certain property and rights were vested in the said Board;
And whereas it is now deemed expedient that the powers conferred upon
the said Board should be transferred to the municipal corporation of the
city of Bombay and that the said property and all existing rights of the said
Board should vest in the said corporation and that the duty of carrying out
the aforesaid purposes should, subject to the conditions and limitations
hereinafter specified, be vested in the said corporation... "
5.5 The provisions of the 1898 Act and 1925 Act indicate that the vesting of
the land and buildings in the Board is solely for the purposes of the scheme. In
essence, the employer assists the Board in carrying out welfare schemes, which is
otherwise the State's statutory duty. Accordingly, once the employer carries out the
scheme, it gets the benefit provided under the said Acts viz. the vesting / conveyance
of the land and buildings free of all restrictions and limitations imposed by the lease or
even the 1925 Act or the 1898 Act.
5.6 Under the 1925 Act, at the end of the lease, if the conditions of the lease
have been complied with, the right of the Board to contend that the premises vest in
them comes to an end and the Board only has an obligation to convey the premises to
the employer. The 1925 Act requires the formalisation of the employer's title by way
Kanchan P Dhuri 36 / 83 WP-295-2017Final.docx
of a conveyance.
5.7 With the aforesaid scheme in mind, we shall now proceed to test the
arguments put forth by the parties.
6. ANALYSIS :
6.1 The primary question that arises for consideration in the facts and
circumstances of the present Writ Petition is whether or not Respondent No.1 is
justified in denying Petitioner No.1 a formal conveyance of the said Premises and
whether the contentions raised by Respondent No.1 in support of such denial are
valid. For the reasons narrated hereinafter, we have come to the conclusion that
Respondent No.1 is not entitled to deny conveyance in favour of Petitioner No.1.
6.2 We have heard the learned Senior Advocates appearing for the
Petitioners and Respondent No.1 at length and have also gone through the pleadings
and the material available on record. Keeping the the legislative scheme, scope and
ambit of the 1898 Act (as amended in 1913) and the 1925 Act [as discussed earlier] in
mind, we shall deal with the objections raised by Respondent No.1.
(A) THAT THE MATTERS RAISED IN THE PRESENT PETITION
CANNOT BE DECIDED IN WRIT PROCEEDINGS AS THE
Kanchan P Dhuri 37 / 83 WP-295-2017Final.docx
PETITION RAISES DISPUTED QUESTIONS OF FACTS AND
AMOUNTS TO SEEKING SPECIFIC PERFORMANCE :
6.3 Before proceeding to decide whether or not the matters raised in the
present Writ Petition can be decided in Writ proceedings, we first need to visit the law
on the subject.
6.4 It is now well settled that the Writ Court is not bound to relegate parties
to a suit merely because one of the parties to the litigation raises a dispute regarding
the facts nor is there any bar to the entertainment of a Writ Petition if the same arises
out of a contractual obligation. This position has been amply made clear by the
Supreme Court in the decision of ABL International Ltd. vs. Export Credit
Guarantee Corpn of India6, relevant paragraphs of which are reproduced as under:
"8. As could be seen from the arguments addressed in this appeal and
as also from the divergent views of the two courts below, one of the questions
that falls for our consideration is whether a writ petition under Article 226 of
the Constitution of India is maintainable to enforce a contractual obligation of
the State or its instrumentality, by an aggrieved party.
9. In our opinion this question is no more res integra and is settled by
a large number of judicial pronouncements of this Court. In K.N.
Guruswamy v. State of Mysore [AIR 1954 SC 592 : (1955) 1 SCR 305] this
Court held: (AIR pp. 595-96, para 20)
"20. The next question is whether the appellant can
complain of this by way of a writ. In our opinion, he could
have done so in an ordinary case. The appellant is interested
in these contracts and has a right under the laws of the State
to receive the same treatment and be given the same chance
as anybody else. ...
We would therefore in the ordinary course have given the
appellant the writ he seeks. But, owing to the time which this
(2004) 3 SCC 553
Kanchan P Dhuri 38 / 83 WP-295-2017Final.docx
matter has taken to reach us (a consequence for which the
appellant is in no way to blame, for he has done all he could to
have an early hearing), there is barely a fortnight of the
contract left to go. ... A writ would therefore be ineffective
and as it is not our practice to issue meaningless writs we
must dismiss this appeal and leave the appellant content with
an enunciation of the law."
10. It is clear from the above observations of this Court in the said
case, though a writ was not issued on the facts of that case, this Court has
held that on a given set of facts if a State acts in an arbitrary manner even in a
matter of contract, an aggrieved party can approach the court by way of writ
under Article 226 of the Constitution and the court depending on facts of the
said case is empowered to grant the relief. This judgment in K.N.
Guruswamy v. State of Mysore [AIR 1954 SC 592 : (1955) 1 SCR 305] was
followed subsequently by this Court in the case of D.F.O. v. Ram Sanehi
Singh [(1971) 3 SCC 864] wherein this Court held: (SCC p. 865, para 4)
"By that order he has deprived the respondent of a valuable
right. We are unable to hold that merely because the source of
the right which the respondent claims was initially in a
contract, for obtaining relief against any arbitrary and unlawful
action on the part of a public authority he must resort to a suit and
not to a petition by way of a writ. In view of the judgment of
this Court in K.N. Guruswamy case [AIR 1954 SC 592 : (1955)
1 SCR 305] there can be no doubt that the petition was
maintainable, even if the right to relief arose out of an alleged
breach of contract, where the action challenged was of a public
authority invested with statutory power."
(emphasis supplied)
16. A perusal of this judgment though shows that a writ petition
involving serious disputed questions of facts which requires consideration of
evidence which is not on record, will not normally be entertained by a court in
the exercise of its jurisdiction under Article 226 of the Constitution of India.
This decision again, in our opinion, does not lay down an absolute rule that in
all cases involving disputed questions of fact the parties should be relegated to
a civil suit. In this view of ours, we are supported by a judgment of this Court
in the case of Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC
769] where dealing with such a situation of disputed questions of fact in a writ
petition this Court held: (SCC p. 774, paras 14-16)
"14. The High Court observed that they will not
determine disputed question of fact in a writ petition. But what
facts were in dispute and what were admitted could only be
determined after an affidavit-in-reply was filed by the State. The
High Court, however, proceeded to dismiss the petition in
Kanchan P Dhuri 39 / 83 WP-295-2017Final.docx
limine. The High Court is not deprived of its jurisdiction to
entertain a petition under Article 226 merely because in
considering the petitioner's right to relief questions of fact may
fall to be determined. In a petition under Article 226 the High
Court has jurisdiction to try issues both of fact and law. Exercise
of the jurisdiction is, it is true, discretionary, but the discretion
must be exercised on sound judicial principles. When the
petition raises questions of fact of a complex nature, which may
for their determination require oral evidence to be taken, and on
that account the High Court is of the view that the dispute may
not appropriately be tried in a writ petition, the High Court may
decline to try a petition. Rejection of a petition in limine will
normally be justified, where the High Court is of the view that
the petition is frivolous or because of the nature of the claim
made dispute sought to be agitated, or that the petition against
the party against whom relief is claimed is not maintainable or
that the dispute raised thereby is such that it would be
inappropriate to try it in the writ jurisdiction, or for analogous
reasons.
15. From the averments made in the petition filed by
the appellants it is clear that in proof of a large number of
allegations the appellants relied upon documentary evidence and
the only matter in respect of which conflict of facts may possibly
arise related to the due publication of the notification under
Section 4 by the Collector.
16. In the present case, in our judgment, the High
Court was not justified in dismissing the petition on the ground
that it will not determine disputed question of fact. The High
Court has jurisdiction to determine questions of fact, even if
they are in dispute and the present, in our judgment, is a case in
which in the interests of both the parties the High Court should
have entertained the petition and called for an affidavit-in-reply
from the respondents, and should have proceeded to try the
petition instead of relegating the appellants to a separate suit."
19. Therefore, it is clear from the above enunciation of law that
merely because one of the parties to the litigation raises a dispute in regard to
the facts of the case, the court entertaining such petition under Article 226
of the Constitution is not always bound to relegate the parties to a suit. In the
above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the
extent of holding that in a writ petition, if the facts require, even oral
evidence can be taken. This clearly shows that in an appropriate case, the
writ court has the jurisdiction to entertain a writ petition involving disputed
questions of fact and there is no absolute bar for entertaining a writ petition
Kanchan P Dhuri 40 / 83 WP-295-2017Final.docx
even if the same arises out of a contractual obligation and/or involves some
disputed questions of fact.
27. From the above discussion of ours, the following legal principles
emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an
instrumentality of a State arising out of a contractual obligation is
maintainable.
(b) Merely because some disputed questions of fact arise for
consideration, same cannot be a ground to refuse to entertain a writ petition
in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also
maintainable.
28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the Constitution of
India, the court should bear in mind the fact that the power to issue
prerogative writs under Article 226 of the Constitution is plenary in nature
and is not limited by any other provisions of the Constitution. The High
Court having regard to the facts of the case, has a discretion to entertain or
not to entertain a writ petition. The Court has imposed upon itself certain
restrictions in the exercise of this power. (See Whirlpool Corpn. V. Registrar
of Trade Marks [(1998) 8 SCC 1] .) And this plenary right of the high Court
to issue a prerogative writ will not normally be exercised by the Court to the
exclusion of other available remedies unless such action of the State or its
instrumentality is arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other valid and legitimate reasons,
for which the Court thinks it necessary to exercise the said jurisdiction."
6.5 In Hari Krishna Mandir Trust vs. State of Maharashtra and Ors. 7,
at paragraph 104, the Supreme Court has held:
"104. The High Court is not deprived of its jurisdiction to entertain a
petition under Article 226 merely because in considering the petitioner's
right to relief, questions of fact may fall to be determined. In a petition under
Article 226, the High Court has jurisdiction to try issues both of fact and law.
Exercise of the jurisdiction is, it is true, discretionary, but the discretion
must be exercised on sound judicial principles. Reference may be made inter
alia to the judgments of this Court in Gunwant Kaur v. Municipal Committee,
(2020) 9 SCC 356: 2020 SCC OnLine 631
Kanchan P Dhuri 41 / 83 WP-295-2017Final.docx
Bhatinda [Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC
769] and State of Kerala v. M.K. Jose [State of Kerala v. M.K. Jose, (2015) 9
SCC 433] . In M.K. Jose [State of Kerala v. M.K. Jose, (2015) 9 SCC 433] ,
this Court held: (SCC pp. 442-43, para 16)
"16. Having referred to the aforesaid decisions, it is
obligatory on our part to refer to two other authorities of this
Court where it has been opined that under what
circumstances a disputed question of fact can be gone into.
In Gunwant Kaur v. Municipal Committee, Bhatinda [Gunwant
Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769] ,
it has been held thus: (SCC p. 774, paras 14-16)
'14. The High Court observed that they will not
determine disputed question of fact in a writ
petition. But what facts were in dispute and what were
admitted could only be determined after an affidavit-in-
reply was filed by the State. The High Court, however,
proceeded to dismiss the petition in limine. The High
Court is not deprived of its jurisdiction to entertain a
petition under Article 226 merely because in considering
the petitioner's right to relief questions of fact may fall to be
determined. In a petition under Article 226 the High
Court has jurisdiction to try issues both of fact and law.
Exercise of the jurisdiction is, it is true, discretionary, but
the discretion must be exercised on sound judicial
principles. When the petition raises questions of fact of
a complex nature, which may for their determination
require oral evidence to be taken, and on that account
the High Court is of the view that the dispute may not
appropriately be tried in a writ petition, the High
Court may decline to try a petition. Rejection of a
petition in limine will normally be justified, where the
High Court is of the view that the petition is frivolous
or because of the nature of the claim made dispute
sought to be agitated, or that the petition against the
party against whom relief is claimed is not
maintainable or that the dispute raised thereby is such
that it would be inappropriate to try it in the writ
jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed
by the appellants it is clear that in proof of a large
number of allegations the appellants relied upon
documentary evidence and the only matter in respect
of which conflict of facts may possibly arise related to
the due publication of the notification under Section 4
by the Collector.
Kanchan P Dhuri 42 / 83 WP-295-2017Final.docx
16. In the present case, in our judgment, the High
Court was not justified in dismissing the petition on the
ground that it will not determine disputed question of fact.
The High Court has jurisdiction to determine questions of
fact, even if they are in dispute and the present, in our
judgment, is a case in which in the interests of both the
parties the High Court should have entertained the petition
and called for an affidavit-in-reply from the respondents,
and should have proceeded to try the petition instead of
relegating the appellants to a separate suit.'"
(emphasis in original and supplied)
6.6 In Popatrao Patil vs. State of Maharashtra 8, this Court declined to
entertain a Writ Petition on the ground that there were disputed questions of facts and
relegated the Petitioner to a Civil Suit. Setting aside the said decision and requiring
the High Court to consider the matter on merits, the Supreme Court held thus:
"11. No doubt that, normally, when a petition involves disputed questions of
fact and law, the High Court would be slow in entertaining the petition under
Article 226 of the Constitution of India. However, it is a rule of self-restraint and
not a hard and fast rule. In any case, this Court in ABL International Ltd. v. Export
Credit Guarantee Corpn. of India Ltd.1 has observed thus:
"19. Therefore, it is clear from the above enunciation of law that
merely because one of the parties to the litigation raises a
dispute in regard to the facts of the case, the court entertaining
such petition under Article 226 of the Constitution is not always
bound to relegate the parties to a suit. In the above case of
Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the
extent of holding that in a writ petition, if the facts require, even
oral evidence can be taken. This clearly shows that in an
appropriate case, the writ court has the jurisdiction to entertain
a writ petition involving disputed questions of fact and there is
no absolute bar for entertaining a writ petition even if the same
arises out of a contractual obligation and/or involves some
disputed questions of fact"
2020 SCC OnLine SC 291
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12.While summing up the conclusions in the aforesaid case, this Court
concluded thus:
"27. From the above discussion of ours, the following
legal principles emerge as to the maintainability of a writ
petition:
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of fact
arise for consideration, same cannot be a ground to refuse to
entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of
monetary claim is also maintainable.
28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the fact
that the power to issue prerogative writs under Article 226 of
the Constitution is plenary in nature and is not limited by any
other provisions of the Constitution. The High Court having
regard to the facts of the case, has a discretion to entertain or
not to entertain a writ petition. The Court has imposed upon
itself certain restrictions in the exercise of this power.
(See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8
SCC 1].) And this plenary right of the High Court to issue a
prerogative writ will not normally be exercised by the Court
to the exclusion of other available remedies unless such
action of the State or its instrumentality is arbitrary and
unreasonable so as to violate the constitutional mandate of
Article 14 or for other valid and legitimate reasons, for which
the Court thinks it necessary to exercise the said
jurisdiction."
13. It could thus be seen, that even if there are disputed questions of
fact which fall for consideration but if they do not require elaborate evidence
to be adduced, the High Court is not precluded from entertaining a petition
under Article 226 of the Constitution. However, such a plenary power has to
be exercised by the High Court in exceptional circumstances. The High
Court would be justified in exercising such a power to the exclusion of other
available remedies only when it finds that the action of the State or its
instrumentality is arbitrary and unreasonable and, as such, violative of
Article 14 of the Constitution of India. In any case, in the present case, we
find that there are hardly any disputed questions of facts.
16. This Court, has time and again held, that the State should act as a
model litigant. In this respect, we can gainfully refer to the following
Kanchan P Dhuri 44 / 83 WP-295-2017Final.docx
observations made by this Court in Urban Improvement Trust,
Bikaner v. Mohan Lal2:
"6. This Court has repeatedly expressed the view that
Governments and statutory authorities should be model or ideal
litigants and should not put forth false, frivolous, vexatious,
technical (but unjust) contentions to obstruct the path of justice.
We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 :
1974 SCC (L&S) 89] this Court extracted with approval the
following statement [from an earlier decision of the Kerala High
Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of
India, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ
723], AIR pp. 107-08, para 5)]: (SCC p. 562, para 25)
"25. ... '5. ... The State, under our Constitution,
undertakes economic activities in a vast and
widening public sector and inevitably gets involved
in disputes with private individuals. But it must be
remembered that the State is no ordinary party
trying to win a case against one of its own citizens
by hook or by crook; for the State's interest is to
meet honest claims, vindicate a substantial de-fence
and never to score a technical point or overreach a
weaker party to avoid a just liability or secure an
unfair advantage, simply because legal devices
provide such an opportunity. The State is a
virtuous litigant and looks with unconcern on
immoral forensic successes so that if on the merits
the case is weak, Government shows a willingness
to settle the dispute regardless of prestige and other
lesser motivations which move private parties to
fight in court. The layout on litigation costs and
executive time by the State and its agencies is so
staggering these days because of the large amount
of litigation in which it is involved that a positive
and wholesome policy of cutting back on the
volume of law suits by the twin methods of not
being tempted into forensic showdowns where a
reasonable adjustment is feasible and ever offering
to extinguish a pending proceeding on just terms,
giving the legal mentors of Government some
initiative and authority in this behalf. I am not
indulging in any judicial homily but only echoing
the dynamic national policy on State litigation
evolved at a Conference of Law Ministers of India
way back in 1957.'"
Kanchan P Dhuri 45 / 83 WP-295-2017Final.docx
8. In Madras Port Trust v. Hymanshu International [(1979) 4
SCC 176] this Court held: (SCC p. 177, para 2)
"2. ... It is high time that Governments and public
authorities adopt the practice of not relying upon
technical pleas for the purpose of defeating
legitimate claims of citizens and do what is fair and
just to the citizens. Of course, if a Government or a
public authority takes up a technical plea, the Court
has to decide it and if the plea is well founded, it
has to be upheld by the court, but what we feel is
that such a plea should not ordinarily be taken up
by a Government or a public authority, unless of
course the claim is not well founded and by reason
of delay in filing it, the evidence for the purpose of
resisting such a claim has become unavailable."
9. In a three-Judge Bench judgment of Bhag Singh v. UT of
Chandigarh [(1985) 3 SCC 737] this Court held: (SCC p. 741,
para 3)
"3. ... The State Government must do what is fair
and just to the citizen and should not, as far as
possible, except in cases where tax or revenue is
received or recovered without protest or where the
State Government would otherwise be irretrievably
be prejudiced, take up a technical plea to defeat the
legitimate and just claim of the citizen." "
6.7 From the aforesaid judgements, the law as laid down by the Supreme
Court and repeatedly followed by this Court is that there is no hard and fast rule
pertaining to the maintainability of Writ Petitions involving disputed questions of facts
and law. On a given set of facts, if the State acts in an arbitrary manner even in a
matter of contract, an aggrieved party can approach the Court seeking issuance of a
Writ under Article 226 of the Constitution, and the Court, depending on facts of the
case, is empowered to grant relief. There is no absolute rule that in all cases involving
disputed questions of fact, the parties should be relegated to a Suit. Merely because
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one of the parties to the litigation raises a dispute regarding the facts of the case, the
Court entertaining such Petition under Article 226 of the Constitution is not always
bound to relegate the parties to a Suit. In fact, Courts have frowned upon public bodies
raising such contentions and held that State instrumentalities ought not to raise
technical pleas to defeat the rights and legitimate claims of a citizen.
6.8 Keeping the aforesaid decisions in mind, we now analyse as to whether
or not this Writ Petition does in fact raise a major 'disputed' question of fact. For the
reasons narrated in the following sections of this decision, in our considered opinion,
the law brought to our notice is overwhelmingly in support of the Petitioners' case and
cannot justify Respondent No.1's non-execution of a formal conveyance of the said
Premises in favour of Petitioner No.1. In our considered opinion, this Petition calls
upon us to interpret and enforce statutory rights arising under the 1898 Act and the
1925 Act and not adjudicate upon facts, whether disputed or undisputed.
6.9 At this stage, we deem it appropriate to draw useful reference to the law
as laid down by the Supreme Court in the case of RBF Rig Corporation, Mumbai vs.
the Commissioner of Customs (Imports), Mumbai 9 and the following extracts
therefrom:
(2011) 3 SCC 573
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"19. Article 226 of the Constitution confers powers on the High Court
to issue certain writs for the enforcement of fundamental rights conferred by
Part III of the Constitution or for any other purpose. The question, whether
any particular relief should be granted under Article 226 of the Constitution,
depends on the facts of each case. The guiding principle in all cases is
promotion of justice and prevention of injustice.
20. In Comptroller and Auditor-General of India v. K.S.
Jagannathan [(1986) 2 SCC 679 : 1986 SCC (L&S) 345 : (1986) 1 ATC 1] ,
this Court has held : (SCC pp. 692-93, para 20)
"20. There is thus no doubt that the High Courts in India
exercising their jurisdiction under Article 226 have the power
to issue a writ of mandamus or a writ in the nature of
mandamus or to pass orders and give necessary directions
where the Government or a public authority has failed to
exercise or has wrongly exercised the discretion conferred
upon it by a statute or a rule or a policy decision of the
Government or has exercised such discretion mala fide or on
irrelevant considerations or by ignoring the relevant
considerations and materials or in such a manner as to
frustrate the object of conferring such discretion or the policy
for implementing which such discretion has been conferred.
In all such cases and in any other fit and proper case a High
Court can, in the exercise of its jurisdiction under Article
226, issue a writ of mandamus or a writ in the nature of
mandamus or pass orders and give directions to compel the
performance in a proper and lawful manner of the discretion
conferred upon the Government or a public authority, and in
a proper case, in order to prevent injustice resulting to the
parties concerned, the court may itself pass an order or give
directions which the Government or the public authority
should have passed or given had it properly and lawfully
exercised its discretion."
21. In Dwarka Nath v. ITO [AIR 1966 SC 81] this Court pointed out that
Article 226 is designedly couched in a wide language in order not to confine
the power conferred by it only to the power to issue prerogative writs as
understood in England, such wide language being used to enable the High
Courts to reach injustice wherever it is found and to mould the reliefs to meet
the peculiar and complicated requirements of this country."
(emphasis supplied)
6.10 In our opinion, the aforesaid judgement of the Supreme Court is
squarely applicable to the present matter. As will be made clear by what is stated in the
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following sections of this decision, Respondent No.1, being a public authority, has
failed to exercise its duties cast upon it by the 1925 Act. Further, Respondent No.1 has
taken into account irrelevant considerations whilst denying Petitioner No.1 its
statutory right to a formal conveyance of the said Premises.
6.11 Further and in any event, Respondent No.1 has failed to appreciate that
this Writ Petition does not seek specific performance of any contract but is in fact for
the enforcement of rights vested in the Petitioner by law. In Gujarat State Financial
Corpn vs. M/s Lotus Hotels Pvt. Ltd10, the Supreme Court has categorically laid down
that a Writ Petition would lie to enforce performance of a statutory duty. The relevant
portion of this decision reads as under:
"13. Now if appellant entered into a solemn contract in discharge and
performance of its statutory duty and the respondent acted upon it, the
statutory corporation cannot be allowed to act arbitrarily so as to cause harm
and injury, flowing from its unreasonable conduct, to the respondent. In
such a situation, the court is not powerless from holding the appellant to its
promise and it can be enforced by a writ of mandamus directing it to perform
its statutory duty. A petition under Article 226 of the Constitution would
certainly lie to direct performance of a statutory duty by "other authority"
as envisaged by Article 12."
6.12 Similarly, in Ayaaubkhan Noorkhan Pathan vs. The State of
Maharashtra and Ors.11, at paragraph 9, the Supreme Court has laid down:
"9. It is a settled legal proposition that a stranger cannot be permitted
to meddle in any proceeding, unless he satisfies the authority/court, that he
(1983) 3 SCC 379
(2013) 4 SCC 465
Kanchan P Dhuri 49 / 83 WP-295-2017Final.docx
falls within the category of aggrieved persons. Only a person who has
suffered, or suffers from legal injury can challenge the act/action/order, etc.
in a court of law. A writ petition under Article 226 of the Constitution is
maintainable either for the purpose of enforcing a statutory or legal right, or
when there is a complaint by the appellant that there has been a breach of
statutory duty on the part of the authorities. Therefore, there must be a
judicially enforceable right available for enforcement, on the basis of which
writ jurisdiction is resorted to. The Court can, of course, enforce the
performance of a statutory duty by a public body, using its writ jurisdiction at
the behest of a person, provided that such person satisfies the Court that he
has a legal right to insist on such performance. The existence of such right is
a condition precedent for invoking the writ jurisdiction of the courts. It is
implicit in the exercise of such extraordinary jurisdiction that the relief
prayed for must be one to enforce a legal right. In fact, the existence of such
right, is the foundation of the exercise of the said jurisdiction by the Court.
The legal right that can be enforced must ordinarily be the right of the
appellant himself, who complains of infraction of such right and approaches
the Court for relief as regards the same. [Vide State of Orissa v. Madan Gopal
Rungta [AIR 1952 SC 12] , Saghir Ahmad v. State of U.P. [AIR 1954 SC
728], Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962 SC
1044], Rajendra Singh v. State of M.P. [(1996) 5 SCC 460 : AIR 1996 SC
2736] and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C.
Sekar [(2009) 2 SCC 784] .]"
6.13 The aforesaid decisions clearly lay down that a Petition under Article
226 of the Constitution would certainly lie to direct performance of a statutory duty.
Such Petition would lie for the purpose of enforcing a statutory or legal right or when
there is a complaint that there has been a breach of a statutory duty on the part of the
State.
6.14 As recorded above, Respondent No.1 has relied upon the decisions of
State of Rajasthan vs. Bhawani Singh and Others, 12 and Tulsiwadi Navnirman Coop.
supra
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Housing Society Ltd. And Ors. vs. State of Maharashtra and Ors, 13. In Bhawani
Singh's case, the Petitioner therein claimed to have purchased the suit land vide a sale
deed executed by the then Maharaja of Jaipur and the title of the Petitioner was very
much in dispute. However, there was no mention of any statutory right to ownership
of the land vested in the Petitioner therein. For similar reasons, reliance on the "self-
imposed restrictions on the exercise of plenary and constitutional powers" as laid down in
Tulsiwadi's case is also of no assistance to Respondent No.1.
6.15 The present case involves the interpretation and enforcement of
statutory rights arising under the 1898 Act and the 1925 Act. If we were to deny the
Petitioners their statutory rights under the 1898 Act and 1925 Act, it would be akin to
laying down a dangerous precedent in as much as public authorities may one day be
permitted to renege on their obligations for absolutely no justifiable reasons thereby
dealing a severe blow to the trust reposed by the people in the State and to private-
state partnership, which was the very foundation of the Poor Classes Accommodation
Scheme.
6.16 For all of the aforesaid reasons, we reject this objection on the
maintainability raised by Respondent No.1.
supra
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(B) THAT THERE WAS INACTION OR DELAY AND LATCHES
ON THE PETITIONERS' PART IN FILING THE PETITION:
6.17 The next argument for denying relief to the Petitioners is that of delay
and latches. Respondent No.1 contends that from 1955 - 1986, the Petitioners did
nothing which amounts to an admission by conduct that they have no claims in the
said Premises.
6.18 It is the Petitioners' case that it filed the above Writ Petition when, in
response to their RTI Application, it was discovered for the first time that contrary to
the consistent stand taken in its earlier letters and reports, one Asst. Commissioner
(Estate) of Respondent No. 1 opined in or around June 2013 that the said Premises
should not be conveyed to the Petitioner. However, till the date of filing of the above
Writ Petition, no formal decision was taken, much less communicated to the
Petitioners by Respondent No. 1 in this regard.
6.19 The record reflects that by a letter dated 11 th November, 2017,
Respondent No. 1 responded to the Petitioner's notice stating that the matter has been
referred to its legal department. It is only in its Affidavit dated 8 th June, 2017, in Reply
to the present Petition, that Respondent No.1 has for the first time communicated its
denial of the Petitioner's rights to and in the said Premises.
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6.20 The record further reflects that despite multiple requests made by
Petitioner No.1 for a formal conveyance, until after the filing of the Petition,
Respondent No.1 had not formally communicated to Petitioner No.1 that it did not
accept Petitioner No.1's statutory right to a conveyance of the said Premises. Had the
Petitioners not approached this Court, it appears that Petitioner No.1 would have
endlessly continued to request Respondent No.1 for a formal conveyance without any
explanation for non-execution of the same by Respondent No.1.
6.21 The delay, if any, is therefore at the end of Respondent No.1 and not the
Petitioners. This fact is further buttressed from the fact that Respondent No. 1 has
only issued a Show Cause Notice as late as 15 th February 2018 i.e. post the filing of the
above Writ Petition.
6.22 Moreover, what is clear from the facts before us is that post expiry of the
lease, the Respondents have treated Petitioner No.1 as an owner. Undisputedly,
Petitioner No.1 has remained in uninterrupted and exclusive legal possession of the
said Premises. Respondent No. 1 has not demanded any lease from the Petitioner after
the expiry of the lease in 1955. Despite determination of the lease as far back as in
1955, Respondent No.1 had not made any demand whatsoever for possession of the
said Premises back from Petitioner No.1. Petitioner No.1 has paid municipal taxes and
is paying the same till date as the owner of the Premises. Moreover, there is sufficient
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material on record to show that the Respondents have expressly acknowledged
Petitioner No.1's right to the said Premises.
6.23 As far as the allegation of the MCGM that there is complete inaction on
the part of the Petitioners from 1955 to 1986, or even for that matter until 2016 is
concerned, irrespective of the veracity of this claim, we reiterate that the Petitioners
had absolutely no reason to believe that their rights to the said Premises would be
denied by the Respondents. No such formal communication has been made by the
Respondents to Petitioner No.1. Petitioner No. 1 has been in uninterrupted and
undisputed possession of the said Premises even after expiry of the lease. This right of
Petitioner No.1 was never interfered with nor questioned by the Respondents, either
during the tenure of the Lease or even after its expiry (until after the filing of this
Petition).
6.24 We fail to see how this alleged inaction on the part of the Petitioners can
be regarded as an admission on their behalf that they purportedly do not have a claim
to the said Premises or that they have abandoned and / or waived their rights.
6.25 The 1st Respondent's submissions as to delay proceed on the mistaken
basis that the Petitioners failed to take necessary steps. Au contraire, under the 1898
Act, there was to be an automatic vesting of the land in the Petitioner on the expiry of
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the lease, and under the 1925 Act, the Board was required to formalise the Petitioner's
title by entering into a conveyance (which statutory duty Respondent No.1 is yet to
perform). Respondent No.1 have not put forth any reason to explain how the
Petitioners were expected to act earlier, when there was no official communication
whatsoever from Respondent No.1 informing Petitioner No.1 that the Petitioner's
rights in the said Premises and / or the Petitioner's entitlement to formal title therein
was being denied by the Respondents.
6.26 The decision of the Supreme Court in State of Maharashtra vs.
Digambar14 cites the appropriate passage from Sir Barnes Peacock, in Lindsay
Petroleum Co. v. Hurd,15 which enunciates the principal as to when delay / latches
would disentitle the grant of discretionary relief. The relevant portion reads thus:
"20. Laches or undue delay, the blameworthy conduct of a person in
approaching a court of equity in England for obtaining discretionary relief
which disentitled him for grant of such relief was explained succinctly by Sir
Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Hurd [(1874) 5 PC 221]
thus:
"Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be practically
unjust to give a remedy, either because the party has, by his
conduct, done that which might fairly be regarded as equivalent
to a waiver of it, or where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet put the other party
in a situation, in which it would not be reasonable to place him if
the remedy were afterwards to be asserted, in either of these
cases, lapse of time and delay are most material. But in every
case, if an argument against relief, which otherwise would be
supra
[(1874) 5 PC 221]
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just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute or limitations, the validity of
that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such cases,
are, the length of the delay and the nature of the acts done
during the interval, which might affect either party and cause a
balance of justice or injustice in taking the one course or the
other, so far as it relates to the remedy." "
6.27 In the present case, Petitioner No.1 has neither waived its rights in the
said Premises nor has it placed Respondent No.1 in a situation in which it would not be
reasonable to place it, on asserting the remedy. On the contrary, Petitioner No. 1 has
taken several steps and incurred large expenses and would be gravely prejudiced if the
reliefs claimed are not granted. The contention by Respondent No. 1 that the
Petitioners have not provided any explanation for the alleged delay is also incorrect
and misconceived. The allegation of delay has been duly met and explained by the
Petitioners in the Affidavit dated 18 th August 2017 in Rejoinder to the Reply filed by
Respondent No. 1.
6.28 The 1st Respondent has relied upon the decision of the Supreme Court in
State of Maharashtra vs. Digambar,16 to contend that the present Writ Petition is not
maintainable on account of delay and latches on the part of the Petitioner. The
Supreme Court in Digambar's case was faced with an Appeal against the judgement of
this Court vide which the Petitioner was granted relief in a Writ Petition filed in the
Supra
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year 1991, whereas the land of the Writ petitioner was allegedly utilised by the
government without any compensation and without his consent sometime in the year
1972 i.e. after a lapse of almost twenty years. The Supreme Court set aside the
judgement of this Court on the ground of delay and latches. The three-Judge bench
felt that the respondents were guilty of blame-worthy conduct and that the High Court
ought not have relieved the Writ Petitioner of his obligation to establish his
unblameworthy conduct for getting such relief, on account of the state being a welfare
state. The Supreme Court was of the opinion that since the High Court had not
properly considered the writ petitioner's blameworthy conduct such as laches or
undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even
if the relief was granted in respect of alleged deprivation of his legal right by the State.
6.29 In the present case, the facts are completely different. It cannot be said
that the Petitioners herein are guilty of any blameworthy conduct such as laches or
undue delay, acquiescence, abandonment, or waiver. There is recorded evidence of the
multiple attempts made by the Petitioners to secure a formal deed of conveyance in
their favour. The allegation of delay levelled against the Petitioners has been duly met
and explained by them and the Petitioners have adequately met the allegations levelled
by the Respondent No.1 of delay and latches. Therefore, the said judgement would be
of no avail to Respondent No.1 in the case at hand. For similar reasons, the Learned
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Senior Advocate's reliance on Apurva Natwar's (supra) case also does not persuade us
to hold that the above Writ Petition ought to be dismissed on the ground of delay and
latches.
6.30 For all of the reasons aforesaid, we hold that the allegation of inaction or
delay and laches on the Petitioners' part in filing the present Petition is misconceived
and hereby rejected.
(C) THAT A SUIT WAS NOT FILED BY THE PETITIONERS
WITHIN 6 MONTHS OF ISSUING A NOTICE U/S 527 OF THE
MMC ACT:
6.31 Moving on, the Respondents have also argued that Petitioner No.1 had
admittedly issued a notice under Section 527 of the MMC Act, however, it chose not
to file a Suit within 6 months from the date of the said notice and therefore, Petitioner
No.1 cannot now avail the remedy of a Writ Petition. The limitation being six months,
even a Suit will now be barred by limitation.
6.32 Although Section 527 of the MMC Act prevents a suit from being
instituted if not filed within 6 months of the notice, it can by no means be taken to
mean that the right to file a Writ Petition in cases where there is a breach of a statutory
duty or a public duty cast upon a statutory authority, gets eclipsed. Since it has been
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repeatedly held that a breach of a statutory or public duty on the part of a statutory
authority is actionable by way of a Writ filed under Article 226 of the Constitution of
India, which does not require the giving of any notice under Section 527 of the MMC
Act, this defence is not sustainable.
6.33 Moreover, there has in fact been no delay or laches on the part of the
Petitioners and / or waiver of any rights by the Petitioners. On the contrary, between
the intervening period 2006 when the notice under section 527 came to be issued and
2016-2017 when the present Petition came to be filed, the following acts performed by
the Petitioners establish that the Petitioners have acted diligently and repeatedly called
upon Respondent No. 1 to comply with its statutory obligations and have not waived /
abandoned their rights:
i RTI Application dated 12th September 2008, made by the Petitioners
inter alia seeking details of plot bearing Block A.
ii On 17th September 2008, Petitioners received a reply to the above RTI
Application from the Assistant Engineer (Imp) 1 Estates stating "...that
as per this office record Conveyance Plan No.277 dated 07-12-1961, the plot
bearing C.S. No.1546 Scheme 51 is freehold land and conveyed... "
iii On 21st April, 2009, the Petitioners addressed a letter to Respondent
No.1 forwarding the draft of the Conveyance.
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iv On 5th April, 2010, the Petitioners addressed another letter to
Respondent No 1 following up on the above letter dated 21st April, 2009.
v On 15th July, 2010, the Petitioners, in response to its RTI Application,
received a copy of Report of Deputy Law Officer of Respondent No 1
dated 11th September, 2009
vi On 5th January, 2011, the Petitioners, in response to its RTI application,
received copies of the Site Plan for Scheme No 51 dated 18 th October,
1954 and Conveyance Plan dated 7th December, 1961.
vii On 18th June, 2012, the Petitioners wrote another letter to Respondent
No.1 seeking reconfirmation of the letter dated 10th September, 1987 as
per the direction of the Collector of Mumbai.
viii On 17th September, 2012 the Petitioners wrote another letter to
Respondent No.1 following up on the request contained in the earlier
letter dated 18th June, 2012.
ix On 11th October, 2012, the Petitioners wrote another letter to
Respondent No.1 recording its meeting with Commissioner of
Respondent No 1 and following up on the request contained in the
earlier letter dated 18th June, 2012.
x On 16th April, 2013, the Petitioners, in response to its RTI Application,
received a copy of the Report of Deputy Law Officer of Respondent No
1 dated 8th April, 2013.
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xi On 30th June, 2013, the Petitioners, in response to its RTI Application,
received a Copy of the Internal Note made by the Assistant
Commissioner (Estates) of Respondent No 1 dated 17th June, 2013.
xii On 12th March, 2014, the Petitioner received a notice for a meeting from
Assistant Commissioner of Respondent No 1. On 13 th March, 2014,
representatives of the Petitioners attended the meeting at the office of
the Assistant Commissioner of Respondent No 1. On 27 th March, 2014,
the Petitioners recorded the above meeting in its letter to Assistant
Commissioner of Respondent No 1. Vide this letter, Petitioner No. 1
once again requested Respondent No.1 to execute a formal Deed of
Conveyance and to confirm the letter of 10th September, 1987.
xiii Sometime in September / October, 2016, the Petitioners, in response to
their RTI application, received copies of the notification of Scheme 51,
copy of the newspaper publication regarding Scheme 51, excerpt of the
proceedings of improvement Committee meeting of 31st May, 1927.
xiv On 30th November, 2016, the Petitioners addressed a notice to
Respondent No 1 referring to the Acts and the statutory rights of the
Petitioners and called upon Respondent No.1 to fulfil its statutory
obligations.
6.34 From the aforementioned facts, it is clear that the Petitioners have at all
material times acted diligently and repeatedly called upon Respondent No. 1 to comply
with its obligations and have not waived / abandoned their rights. The Petitioners have
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made multiple efforts to obtain a formal conveyance of the said Premises, and all these
efforts are well documented and produced before us. In our considered opinion, the
Petitioners' have done all that was in their ability to be granted a formal conveyance of
the said Premises before approaching this Court.
(D) THAT OWING TO MODIFICATION OF THE SCHEME, THE
PETITIONERS ARE NOT ENTITLED TO CONVEYANCE :
6.35 In order to consider this submission of Mr. Reis, we first consider
Section 37(2) of the 1925 Act. Section 37(2) of the 1925 Act allows alteration of a
scheme and execution of the scheme as altered. The Petitioner applied for alteration of
the Scheme which was duly granted by the Board under Section 37(2) by issuing
Resolution No.325. Accordingly, on a plain and literal reading of the provisions of the
1925 Act, the Petitioners were discharged from constructing further blocks of rooms
on the remaining portions of land acquired (with the consent of the Board).
6.36 We find that there is no provision in the 1898 Act or in the 1925 Act,
under which Petitioner No.1 could have lost its right to a conveyance of the said
Premises upon alteration of the Scheme under Section 37(2) of the 1925 Act.
Moreover, from the material placed on record, it is evident that the Board had not
made any indication to the effect that the said Premises would not vest in / be
conveyed to Petitioner No.1 upon alteration of the Scheme or for that matter,
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alteration of the Scheme would serve as an impediment in any manner whatsoever. We
cannot also omit reference to the fact that at the time when Petitioner No.1 applied for
the Scheme i.e. in 1918, it did so and expended monies on the basis of the
representation that by virtue of the provisions of the 1898 Act, Petitioner No.1 would
become the owner of the land after expiry of the lease. Section 37(2) of the 1925 Act
expressly allows alterations of an approved scheme and provides for execution of the
scheme as altered. As a result of the lease deed dated 3 rd October 1928 having been
executed on the basis of the altered scheme, Respondent No.1 is now estopped from
contending that the Petitioner is not entitled to a conveyance of the land owing to the
alteration in the scheme.
6.37 It is well settled that this Court cannot read into a statute a condition
which does not exist. We cannot possibly assume that Petitioner No.1's right to a
conveyance of the said Premises gets eclipsed upon alteration of the Scheme when the
1898 Act and/or the 1925 Act itself indicate no such condition. We cannot also ignore
that on 3rd October 1928, the Board duly granted the lease of the premises comprising
Block A (now Cadastral Survey No. 1546) together with 22 buildings thereon consisting
partly of 20 blocks of dwelling houses to Petitioner No. 1 for a period of 28 years w.e.f.
1st April 1927 at a yearly rent of Rs.1 /-. In the recital to this lease, the fact that prior to
the execution of the lease, Petitioner No. 1 had met with its obligation of constructing
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dwellings for poorer classes accommodation has been acknowledged and recorded.
6.38 It is trite law that if the recitals are clear and the operative part is
ambiguous, it is the recitals that govern the construction of the document. In this
context, we place reliance on the Supreme Court's decision in Ram Charan Das Vs.
Girija Nandini Devi & Ors17. In the present case, the recitals have very clear
provisions regarding conveyance to be made in favour of Petitioner No.1 after the
expiration of the lease. The operative part of the lease governs the terms and
conditions on which the lease is granted. The recitals on the other hand inter alia
provide a record of the agreement arrived at to grant the conveyance. Further, the
lease also does not contain any provision for renewal or for re-entry after expiry of the
term of the lease.
6.39 In view of the aforesaid, in our considered opinion, notwithstanding
alteration of the Scheme, the Petitioners are entitled to the benefit of the statutory
provisions for vesting / conveyance in respect of the land. Our finding is buttressed by
the fact that there is no provision in the 1898 Act or the 1925 Act under which
Petitioner No.1 could have lost its right to a conveyance of the said Premises upon
alteration of the Scheme under Section 37(2) of the 1925 Act. Further, no document
and/or other material has been brought on record by the Respondents to demonstrate
(AIR 1966 SC 323)
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that alteration of a scheme under Section 37(2) of the 1925 Act would adversely affect
the rights of an employer to a conveyance upon expiration of the lease.
6.40 Mr. Reis has also relied on Resolution No.325 to contend that since the
said Resolution was passed only in terms of paragraphs 2 and 4 of the Petitioner's
letter dated 20th May 1927 (C N Wadia and Co's letter to the Board) and not in terms of
paragraph 6 thereof, the Petitioners are not entitled to a conveyance. To deal with this
submission, it would be apposite to first refer to paragraph no. 4 of C N Wadia and
Co.'s letter dated 20th May 1927 which reads as under:
"4. We agree to keep a strip 5 feet in width along the eastern
boundary of Block A, open and unbuilt upon, to permit the Board to lay a
sewer therein should they find it necessary to do so. The Conveyance in
respect of this land to be granted on the expiration of the lease will also
make provision for this."
(emphasis supplied)
6.41 Paragraph no.4 of the above letter indicates that a 5 feet wide strip of
land was to remain open and unbuilt upon so that a sewer could be laid, if required.
Resultantly, as and when the conveyance for Block A is to be executed, it would
include the above 5 feet wide strip of land along with a provision for it to remain open
and unbuilt upon so that a sewer could be laid, if required. This is the only
interpretation that can be drawn from the aforesaid paragraph.
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6.42 Thereafter, paragraph no. 6 of the said letter reads as under:
"6. It is understood that at the end of the period of lease, Block A is
to be conveyed to us as a freehold land."
6.43 On a mere reading of the said letter, it is evident that the contents of
paragraph no. 6 are already previously "understood" / covered by the language in the
second sentence of paragraph no. 4. This being apparent from the use of the words
"The conveyance in respect of this land to be granted on the expiration of the lease...." and
"will also". A reading of this sentence indicates to us that conveyance was to be
granted for the entire Block A which "will also" include the 5 feet strip of land on the
eastern boundary of Block A "to be granted on the expiration of the lease". The words
"this land" can only be the entire Block A referred to in the first portion and which is
the subject matter of the resolution. The condition in paragraph 4 of the letter to keep
a strip of 5 feet in width open and unbuilt upon and to permit the Board to lay a sewer
can mean nothing else except that the said condition would continue to operate even
after the land i.e. land bearing C.S. No.1546 being Block A, is conveyed to the
Petitioners. It certainly cannot be interpreted to mean only conveyance of a 5 feet strip
in width since no purpose would be served by conveying a strip which could not be
built upon while not conveying the remainder of the land.
6.44 Pertinently, paragraph no.6 has not been negated or expressly rejected in
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Resolution No.325. Instead, the resolution came to be passed in terms of paragraph
nos.2 and 4 of C N Wadia and Co.'s letter dated 20th May 1927. Had the intention of
the Board been to not convey the land, there would not have been a specific reference
to paragraph no.4. By the passing of Resolution No.325, the Board approved the
amendment/alteration of the Scheme only to the extent of excluding Blocks B & C.
The provisions of the Act therefore continued to apply to Block A.
6.45 We are also unable to agree with Mr. Reis' contention that paragraph
no.2 of C N Wadia and Co's letter to the Board makes it very clear that C N Wadia
and Co wanted lease of Block A and conveyance of Block B. This contention also does
not hold any water. Paragraph no.2 makes it clear that the lease was to be granted as
envisaged under the Act.
(E) THAT THE PETITIONERS ARE DISENTITLED TO
CLAIM CONVEYANCE OWING TO PETITIONER NO.1'S
FAILURE TO PERFORM THE ORIGINAL SCHEME :
6.46 This argument of Mr. Reis though impressive at first blush fails to
recognize that the alteration of the Scheme was not a unilateral act of Petitioner No.1
but was with the consent and express permission of the Trustees. This being so and on
this fundamental ground alone, Mr. Reis cannot be permitted to now argue that the
Petitioners are disentitled to a conveyance owing to their failure to complete the
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Scheme as sanctioned prior to its alteration.
6.47 Section 37(2) of the 1925 Act expressly provides and permits for
alterations of previously approved schemes and execution of such schemes once
altered. Exercising this right, under the scheme as altered, the Petitioners were
discharged from constructing further blocks of rooms on the remaining portions of
land acquired.
6.48 As stated hereinabove, the recitals to the Lease expressly record
acceptance of the altered scheme by the Trustees. At the cost of repetition, we
reproduce the following recital from the Lease:
"The Board on 31" Day of May, One Thousand Nine Hundred and
Twenty Seven passed a Resolution being Resolution No 325 altering the
said Scheme inter alia by discharging the Lessees from their obligation to
construct further block of rooms on the remaining portions of the said
land so acquired as aforesaid and to grant to the lessees a lease only for the
portion of the said land hereby demised for a term of 28 years at the
nominal rent of Re.1 per annum. "
6.49 As can be seen from the aforesaid recital, the Board has, in very clear
terms, declared that the Petitioners were discharged from their obligation to construct
further blocks of rooms on the said land. The recitals indicate that Petitioner No.1 had
prior to execution of the lease, met with its obligation of constructing dwellings for
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poorer classes accommodation.
6.50 For the reasons aforesaid, in our considered opinion, Mr. Reis is now
estopped for raising this argument owing to the fact that the Trustees had themselves
executed the Lease dated 3rd October, 1928 on the basis of the altered scheme.
(F) THAT THE PETITIONERS HAVE BEEN DULY
COMPENSATED FOR CONSTRUCTION OF 476 TENEMENTS
BY CONVEYANCE OF BLOCK B IN THEIR FAVOUR:
6.51 At the outset, we note that there is no material on record to suggest or
confirm the submission that there is no requirement of conveying Block A considering
that Petitioner No.1 was duly conveyed Block B previously. Nothing on record even
remotely seems to suggest that Petitioner No.1 was conveyed Block B in exchange for
constructing 476 tenements on Block A. This being so, we cannot accept this oral
submission which is neither backed by the provisions of the Acts nor by any document
produced by Respondent No.1.
6.52 The aforesaid submission is in fact contrary to the record and contrary to
the statutory mandate of the concerned Acts as narrated in detail herein.
(G) THAT THE PETITIONERS ARE ENTITLED TO A
CONVEYANCE, IF AT ALL, OF THE DWELLING UNITS AND
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NOT THE LAND:
6.53 On behalf of the Respondents, it has been submitted that the word
"premises" is not defined in the 1898 Act, 1913 Act or the 1925 Act. It is therefore
contended that on a reading of Sections 42(3)(b), 47(4) and 48(a) of the 1925 Act, the
intention of the legislature of granting lease of only buildings would be clear and
therefore, recourse to Section 5 of the 1925 Act for referring to the definition of
premises under Section 3(gg) of the City of Bombay Municipal Act, 1888, would be
repugnant to the provisions of the 1925 Act. That there is an express exclusion of the
word land and therefore, the intention of the legislature was to exclude a lease of land
and only restrict such lease to buildings. As a consequence, if at all, the Petitioners are
entitled to a conveyance, it would only be of the dwelling units on the land and not the
land itself, was the argument.
6.54 In this respect, we firstly note that the Lease deed refers to the land
bearing C.S No.1546 viz. Block A. Furthermore, the scheme also refers to Land and
building constructed thereon. Further, Section 47(2) of the 1925 Act includes the cost
of land and building for computing the cost of the scheme. Section 5 of the 1925 Act
provides that, in the 1925 Act, unless there is something repugnant in the subject or
context, words shall be deemed to have the meaning ascribed to such words under the
City of Bombay Municipal Act, 1888. Section 5 of the 1925 Act reads as follows:
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"In this Act, unless there be something repugnant in the subject or
context, words shall be deemed to have the meaning ascribed to such
words under the City of Bombay Municipal Act, 1888, hereinafter referred
to as "the Municipal Act..."
6.55 The definition of "premises" under Section 3 (gg) of The Mumbai
Municipal Corporation Act, 188 includes buildings and lands.
6.56 Section 32 I of the 1898 Act provides for the vesting in the employer of
the right, title and interest of the Board in and to the dwellings and in and to the land
on which the dwellings are constructed free from all the liabilities created by the 1898
Act. Section 4 of the 1925 Act provides that the repeal of the 1898 Act shall not affect
the validity or invalidity of anything already done under the 1898 Act.
6.57 It is a well settled rule of statutory interpretation that the intention of the
legislature must be found by reading the statute as a whole. When we follow this
principle of statutory interpretation, what we have to do is read Sections 42(3)(b),
47(4) and 48(a) of the 1925 Act not in isolation as canvassed by Respondent No.1, but
with reference to the other relevant provisions of the 1898 Act and 1925 Act. On a
reading of all the provisions of the 1898 Act (as amended by the 1913 Act) and the 1925
Act itself, it is clear to us that the intent of the legislature was to grant conveyance of
not only the buildings, but also the land upon which they were built. The word
'premises' must be construed with some purpose which lies behind it and the purpose
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can only be determined by reading the other provisions of the Acts.
6.58 The submission of Respondent No.1 that on a reading of Section 42(3)
(b), 47(4) and 48(a) of the 1925 Act, the intention of the legislature of granting lease of
only buildings would be clear and therefore the recourse to Section 5 of the 1925 Act
for referring to the definition of 'premises' under Section 3(gg) of the Act of 1888
would be repugnant to the provisions of the 1925 Act, is not tenable. If this argument
is given any credence, it would be a flagrant violation of the principles of statutory
interpretation that provisions in an enactment must be read as a whole, before
ascertaining the scope of any particular provision.
6.59 We cannot also omit reference to the fact that admittedly, for acquisition
of the land, a total amount of Rs.1,65,692/- has already been paid over by Petitioner
No. 1 to the Improvement Trust Board. On 13th January, 1919, a sum of Rs. 39,000/-
was paid and on 20th May, 1927, a sum of Rs. 1,26,692/- was paid by Petitioner No. 1.
As recorded hereinabove, these monies paid over by the Petitioner were in turn paid to
the owners of these lands. Pertinently, the Petitioners' have constructed the buildings
on the land at their own cost. This being so, in our considered opinion, the Petitioners
are not only entitled to a conveyance of the dwelling units, but the land as well. This
interpretation would not be repugnant in the subject or context of the 1925 Act.
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(H) THAT EVEN IF THERE IS ANY LEGAL RIGHT, THE
ENTIRE ACTION WAS UNDER THE ACT OF 1925 AND
NOT UNDER THE ACT OF 1898:
6.60 It is Mr. Reis' argument that since all the actions were taken at the time
when the 1925 Act was in force, unlike Section 32I of the 1898 Act as amended by the
1913 Act, there is no clause of vesting of property under the 1925 Act.
6.61 The fundamental difference between the 1898 Act and the 1925 Act is
that under Section 32I of the Act, there is provision of vesting of the land and
dwellings, whilst under the 1925 Act, Section 51(2) provides for a conveyance. As per
Section 4 of the 1925 Act, the repeal of the 1898 Act shall not affect the validity or
invalidity of anything already done under the 1898 Act. Section 55 of the 1925 Act
requires all schemes sanctioned or executed under the 1898 Act to be executed with
due diligence by the Board constituted under the 1925 Act. Section 51(2) of the 1925
Act is similar to Section 32I of the 1913 Act except that it provides for conveyance of
the premises under a scheme instead of an automatic vesting.
6.62 Prior to the repeal of the 1898 Act, the following acts had already taken
place:
i Resolution No. 121 came to be passed on 16th April, 1918;
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ii Scheme No.51 came to be notified on 1st May, 1918;
iii The lands in question were acquired on 16th August, 1919 by the
Sp. Collector and handed over to the Improvement Trust Board
who in turn handed over the same to Petitioner No.1;
iv Petitioner No.1 deposited a substantial sum of monies in 1919;
v Petitioner No.1 commenced construction of 20 blocks containing
476 rooms and 10 shops on the portion of the said Premises in
question;
vi Petitioner No.1 paid the balance substantial amount for acquisition
of the said premises in the year 1927.
6.63 On an analysis of the aforesaid, it is glaringly apparent that the repeal of
the 1898 Act does not affect the validity or invalidity of anything already done under
the 1898 Act and all schemes sanctioned or executed under the 1898 Act are to be
executed with due diligence by the Board constituted under the 1925 Act. Admittedly,
the Scheme in question was first sanctioned in the year 1918 i.e. it was sanctioned
under the 1898 Act. As per the Scheme, there was to be an automatic vesting of the
land in favour of the Petitioners. Now, just because the 1925 Act replaces "vesting"
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with "conveyance", that alone is not sufficient to deny the Petitioners their right to the
said Premises as contended by Respondent No.1. The objective of both - the 1898 Act
and 1925 Act is to make the employer the owner of the land in question upon
determination of the lease and satisfaction of the conditions there under. That remains
unchanged under both Acts.
6.64 For these reasons, we cannot also accept this submission of Mr. Reis.
(I) THAT THE DOCUMENTS REFERRED TO BY THE
PETITIONERS ARE NULL AND VOID, NOT VALID, NON-
AUTHENTIC, SIGNED BY UNKNOWN PERSONS AND NOT
APPROVED BY THE COMPETENT AUTHORITY :
6.65 It has been submitted before us that the documents referred to by the
Petitioners are null and void, not valid, non-authentic, signed by unknown persons and
not approved by the Competent Authority. The basis for this stance put forth is that
the said documents were given to the Petitioner "without obtaining sanction from the
competent authority i.e. Improvement Committee and Corporation" and "It is in violation of
the MMC Act as the Improvement Committee and Corporation are only legally empowered to
decide and sanction the conveyance of Municipal land to a private entity. The statutory
powers of Improvement Committee / Corporation cannot be delegated nor circumscribed by
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any authority including Municipal Commissioner or any of his officers especially in light of
the clear directives of the Improvement Trust vide above said Resolution No. 325 of 31" May
1927".
6.66 At the outset, prior to dealing with this contention, we reiterate, at the
cost of repetition, that as has been held by us hereinabove, the Petitioners have a
statutory right to a formal conveyance of the said Premises under the 1925 Act.
Consequently, there is a corresponding statutory duty in Respondent No.1 to execute
the same. Once we have arrived at this conclusion on the basis of the reasons stated
hereinabove on an analysis of both the Acts, we see no need to examine whether the
documents referred to by the Petitioners are null and void, not valid, non-authentic,
signed by unknown persons and not approved by the Competent Authority.
Nevertheless, we will still address this contention put forth by the Respondent No.1
and the following discussion will only go on to further defeat the stand taken by
Respondent No.1 in the present matter.
6.67 The original Scheme was sanctioned under the provisions of the 1898
Act as amended by the 1913 Act and was subsequently altered and approved by
Resolution No. 325 dated 31st May, 1927 under the provisions of the 1925 Act. The
lease deed dated 3rd October 1928 came to be executed in respect of the Scheme as
altered and approved by the Board under the provisions of the 1925 Act. None of these
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facts have been disputed by Respondent No.1.
6.68 It is in the aforesaid circumstances, under Section 51(2) of the 1925 Act,
the Board was obliged to convey the premises free of all restrictions and liabilities to
Petitioner No.1.
6.69 The Respondents stand that the documents in question "... is in violation
of the MMC Act as the Improvement Committee and Corporation are only legally empowered
to decide and sanction the conveyance of Municipal land to a private entity.:" is incorrect
for the sole reason that Respondent No.1 has a statutory duty to convey the land in
favour of Petitioner No.1. There is no discretion left in Respondent No.1 "to decide"
whether to convey the land in favour of Petitioner No.1 or not. All that Respondent
No.1 is empowered to do in this regard is to convey the said Premises in favour of
Petitioner No.1 in consonance with its statutory duties.
6.70 Equally, the Respondent's contention that the internal notes and
opinions made available to the Petitioners under the RTI Act cannot be relied upon
because they have not been finally approved by the Competent Authority is of no avail
to the Respondents inter alia because these notes are consistent with the statutory
provisions and obligations under the 1898 Act (as amended by the 1913 Act) and the
1925 Act. Moreover, these internal notes and legal opinions were relied upon by the
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Petitioners only for the purpose of corroborating the stand taken by the Petitioners as
also to demonstrate that right up to 2018 when the Show Cause Notice came to be
issued, there was no reason whatsoever put forth by the Corporation to not execute a
conveyance or to pass any order excluding C.S. No. 1546 from the IDS.
6.71 To us it appears that Respondent No.1 is now attempting to disown those
officials who have issued communications duly acknowledging Petitioner No.1's right
to a conveyance of the said Premises and corroborating the version of the Petitioners.
Respondent No.1 is a public authority and the citizens of India can reasonably assume
that any communication issued by a body like Respondent No.1 (especially when there
are multiple communications reiterating Petitioner No.1's right to the said Premises), is
authentic and been issued under the appropriate authority. As we have stated earlier,
Petitioner No.1 has only referred to the said documents to corroborate its case. Even if
we were to assume that the documents / communications relied upon by the
Petitioners are actually faulty, it would make no difference to the strength of the case
of Petitioner No.1 since Petitioner No.1's statutory rights remain unaffected under the
applicable law i.e. the 1898 Act and the 1925 Act.
( J) THAT THE PETITIONERS DO NOT WANT TO CONTINUE
TO PROVIDE POORER CLASSES ACCOMMODATION AND
HAVE SUBMITTED PLANS FOR ALTERING THE USE OF THE
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LAND FOR COMMERCIAL EXPLOITATION :
6.72 The next defence raised is that since the Petitioners do not wish to
continue to provide Poorer Classes Accommodation and have submitted Plans for
altering the use of land for commercial exploitation, the Petitioners should be denied
their prayers. Once again, this argument finds no reference in the applicable legislation
or documentation.
6.73 The fallacy in the aforesaid argument is that it omits to keep in mind that
under Section 51(2) of the 1925 Act, it is apparent that the premises are to be
conveyed to the Lessees by the Board, free of all restrictions and liabilities imposed by
the Lease, by the 1925 Act, or by the 1898 Act. Upon conclusion of the term of the
lease, the Petitioners are no longer bound by the terms and conditions of the lease or
the Scheme under which the lease was granted. On this count alone, we cannot accept
this defence raised to oppose the grant of reliefs.
6.74 We disagree with the contention of Mr. Reis that, the said Premises were
worth about Rs.728 Crores in the year 2018 and that since it belongs to a public body,
it shall be used for Poorer Classes by Respondent No.1. The right of the Petitioner
No.1 to a formal conveyance of the said Premises should not and does not get eclipsed
by the fact that the said property is worth Rs. 728 Crores or any other monetary sum,
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however small or large. As long as Petitioner No.1 has fulfilled its obligations under the
Scheme, albeit in its modified form, it would be a grave miscarriage of justice to deny
the Petitioners their statutory right to a formal conveyance only on account of the
enormous monetary value of the said Premises in today's day.
(K) THAT THE PETITIONERS SHOULD FILE A REPLY TO THE
SHOW CAUSE NOTICE :
6.75 It has been argued that in terms of this Court's order dated 3 rd July, 2017,
a Show Cause Notice was given to the Petitioners but they have not replied to it and
instead approached this Court with an amendment and for stay of the proceedings in
respect of the Show Cause Notice. It is therefore submitted that the Petitioners should
be directed to file a reply to the Show Cause Notice and thereafter, Respondent No.1
will offer a hearing before coming to any decision.
6.76 On a mere reading of the facts and circumstances of this case, and after
thoroughly observing all the material brought on record by the Petitioners and
Respondents, the arbitrary and unjustifiable conduct of Respondent No.1 with regard
to this matter, is writ large. The Petitioners have repeatedly called upon Respondent
No.1 to fulfil its statutory duty to execute a formal conveyance of the said Premises in
favour of Petitioner No.1, but all such calls made by the Petitioners seem to have fallen
on deaf ears.
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6.77 Looking at the in-action and arbitrary approach adopted by Respondent
No.1 over the past several years, we have every reason to believe that this is a fit case
for the intervention of this Court at this stage rather than have the matter relegated to
the stage of a Show Cause Notice which will only give rise to several further years of
litigation. We cannot aid multiplicity of proceedings in such manner. Therefore, we
find no merit in this contention of the Respondents.
7. CONCLUSION :
7.1 The Petitioners had applied for a Scheme under the 1898 Act which was
duly approved. They thereafter at their own cost constructed buildings on the land and
applied for alteration of the Scheme under the 1925 Act, which alteration was duly
granted. The Petitioners paid Rs.1,65,692/- being the full cost of the Scheme i.e. the
cost of the land acquired (the Petitioners' have constructed the buildings thereon at their
own cost), to the Board. The Petitioners were then granted a lease for a period of 28
years of the said Premises. No default / breach of the terms of the lease has been
committed by the Petitioners. The 1st Respondent has also at no point of time during
the period of the lease ever alleged a breach of any lease conditions. As such, no
breach of the lease was reported to the Petitioners during subsistence of the lease.
Thus, the Petitioners became entitled to a formal conveyance of the said Premises as
per the provisions of Section 51(2) of the 1925 Act. By virtue of the statute, Petitioner
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No.1 has an indefeasible right to the benefit under Section 51 of the 1925 Act to obtain
a formal conveyance in its favour.
7.2 Although no formal deed of conveyance has been executed till date, in
our opinion, both, Petitioner No.1 and the 1 st Respondent have treated the said
Premises as vested in Petitioner No.1 post determination of the lease. This is also
evident from the fact that post determination, no lease rent has been demanded from
Petitioner No.1 and/or paid by Petitioner No.1. Ever since determination, Petitioner
No.1 has enjoyed undisturbed possession of the said Premises and has been paying
municipal taxes etc. in respect thereof as the owner.
7.3 To us, the reasons put forth by Respondent No.1 to deny Petitioner No.1
its statutory right to a conveyance of the said Premises are not only contrary to and
inconsistent with the prior conduct of Respondent No.1 whereby it has acknowledged
Petitioner No.1's right to ownership of the said Premises, but are also vague,
unsubstantiated and suffer from grave non-application of mind.
7.4 In view of the aforesaid, Petitioner No. 1 has sufficiently demonstrated
its legitimate entitlement to a formal conveyance of the said Premises.
Notwithstanding this position, despite multiple requests, Respondent No.1 is yet to
grant Petitioner No.1 a formal conveyance of the said Premises.
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7.5 None of the documents brought on record by Respondent No.1
substantiate any of its contentions. When we juxtapose the applicable law with
Respondent No.1's documents, it becomes ex-facie clear that Respondent No.1 has no
well-founded reason for denying Petitioner No.1 a formal conveyance. One cannot also
ignore the fact that Petitioner No. 1 has been in uninterrupted and undisputed
possession of the said Premises even after expiry of the lease to the express knowledge
of Respondent No.1. Despite this position, no steps whatsoever have been taken by
Respondent No.1 to either interfere with and / or contest the right of Petitioner No.1
to the said Premises.
7.6 In view of all that has been held hereinabove, we are of the considered
opinion that the present Petition deserves to be allowed. Petitioner No.1 has
sufficiently demonstrated its entitlement to a formal conveyance of the said Premises.
It is unfortunate that for speculative and irrelevant considerations, Respondent No. 1
has withheld the formal conveyance of the said Premises from the Petitioners.
7.7 The Petitioners have been made to run from pillar to post and are
awaiting the execution of a formal conveyance of the said Premises. Till date, there is
no cogent reason whatsoever for withholding the formal conveyance of the said
Premises in favour of Petitioner No.1. In the facts and circumstances of the case, we
do not feel that it is appropriate to leave this matter to the discretion of Respondent
Kanchan P Dhuri 83 / 83 WP-295-2017Final.docx
No.1 and direct the Petitioners to file a reply to the Show Cause Notice issued by
Respondent No.1. This is therefore a fit case to issue a writ of mandamus ordering,
directing and compelling Respondent No.1 to perform its statutory duties in a proper
and lawful manner.
7.8 In view of the detailed discussion set out earlier in this judgement, we
pass the following Order:
(a) The Petition is allowed. Respondent No. 1 is directed to execute
the formal conveyance of plot bearing C.S. No. 1546 of Lower
Parel Division in favour of Petitioner No.1 within a period of
eight weeks from today;
(b) Rule made absolute in the aforesaid terms. There shall be no
order as to costs.
(B.P. COLABAWALLA, J.) (S.J. KATHAWALLA, J.)
