Bombay High Court
Godrej And Boyce Mfg Co Ltd And Anr vs Bmc And Ors on 19 September, 2024
Author: M.S.Sonak
Bench: M.S.Sonak
2024:BHC-OS:14332-DB Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
Darshan Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1507 OF 2005
1. GODREJ & BOYCE MFG. CO. LTD.,
a Public Limited Company having its
Registered Office at Pirojshanagar
Vikhroli, Mumbai 400 079
2. NAYAN A. SHAH,
through MAYFAIR HOUSING its
partner of Mumbai, Indian
Inhabitant, having his office at 272,
Prabhu Prabhu, 9th & 11th Junction
DARSHAN Road, Khar (West), Mumbai - 400
PRAKASH
PATIL 052 ...PETITIONERS
Digitally signed by
DARSHAN PRAKASH
PATIL
Date: 2024.09.20
~ VERSUS ~
11:26:57 +0530
1. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI,
a statutory Corporation constituted
under the Bombay Municipal
Corporation Act, 1988, having its
office at Mahapalika Marg,
Mahapalika Bhavan, Mumbai - 400
001
2. THE MUNICIPAL COMMISSIONER,
having his office at Mumbai
Municipal Corporation of Greater
Mumbai, Mahapalika Bhavan,
Mahapalika Marg, Mumbai - 400
001
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Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
3. THE EXECUTIVE ENGINEER,
Water Works (Planning & Research)
Room No.33, 3rd Floor, "B" Ward
Municipal Office, 121, Ramchandra
Bhatt "X" Lane, Opposite J.J.
Hospital, Byculla, Mumbai-400009
4. THE DEPUTY CHIEF ENGINEER
(ROADS),
Easter Suburbs, Pant Nagar, Garage
Bldg, 5th Floor, Behind BEST Depot,
Ghatkopar (East), Mumbai - 400
075 ...RESPONDENTS
A PPEARANCES
FOR THE PETITIONERS Mr Surel Shah, Senior Counsel,
with Mr Amrut Joshi, Yazad
Udwadia, Mr Arun Panickar,
Vinay Nair, i/b Arun
Panickar.
FOR THE RESPONDENT-BMC Mr A Y Sakhare, Senior Counsel,
with Mr Kunal Waghmare,
i/b Mr S K Sonawane.
CORAM : M.S.Sonak &
Kamal Khata, JJ.
RESERVED ON : 12 September 2024
PRONOUNCED ON : 19 September 2024
JUDGMENT (Per MS Sonak J):
-
1. Heard learned counsel for the parties.
2. The petitioners, by instituting this petition, have sought
the following substantive relief in this petition:-
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
"(a) That this Hon'ble Court be pleased to issue a Writ of
Mandamus or a Writ in the nature of Mandamus or any
other appropriate, Writ direction or order in exercise of its
Power under Article 226 of the Constitution of India
calling for the records of the case and after examining the
legality and propriety of the case under which the demand
towards road opening and back filing charges for
excavation work (Reinstatement charges) by Demand
Notice dated 10th May 2005 (Exhibit "F") for
Rs.48,36,150/- towards reinstatement charges and
Rs.50,000/- towards penalty and the stop work notice
dated 28th March 2005 (Exhibit "E") issued by the
Respondent No.4 be quashed and set aside."
3. The learned Vacation Judge (Coram: R.S. Mohite J.), on
18 May 2005, made the following order granting limited
interim relief to the petitioners:-
"1. The Advocate for the petitioners states that he is willing
to continue to lay down the water mains in accordance
with the permission and terms contained in the permission
dated 10.5.2005 except Condition No.10. He makes a
statement that an amount of Rs.12/-lacs are lying with the
Corporation. In so far as Condition No.10 is concerned, he
will give bank guarantee of Rs.36/- lacs in favour of the
Prothonotary and Sr. Master of this court within a period
of one week from today. He further states that he will
complete the aforesaid work within 20 days from today. In
view of this, list the matter on 8.6.2005. It is directed that
the B.M.C will not obstruct for laying down the water
mains. The bank guarantee will be without prejudice to the
rights and contentions of the parties.
2. All concerned to act on the copy of this order duly
authenticated by the Court Stenographer of this court."
4. After that, the rule was issued in this petition on 18
April 2006, and the petitioners were directed to keep the bank
guarantee they had furnished alive pending the final disposal
of the petition.
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
5. Mr Shah learned Senior Advocate for the petitioners
submitted that Brihanmumbai Mahanagar Palika ("BMC") had
earlier issued an NOC for laying water mains. However, a stop
work order was issued after the petitioner commenced the
work. He submitted that later, on 10 May 2005, formal
permission was granted by the BMC subject to 10 conditions.
Mr Shah submitted that one of the conditions was that the
petitioners should backfill the trenches with granular material
to cover up the water pipelines. Since the petitioners were
directed to reinstate the trenches with backfilling, there was
no question or justification for levying reinstatement charges
of Rs.48,36,150/- and a penalty of Rs.50,000/- as the 10th
condition in the permission dated 10 May 2005.
6. Mr Shah submitted that there was no statutory provision
based upon which the above levy towards reinstatement
charges or penalty could be justified. He submitted that the
condition was absurd and illogical, given that the petitioners
were directed to reinstate the trenches and restore the road to
its original condition. Mr Shah submitted that the petitioners
furnished the necessary bank guarantee and completed laying
the water mains. He submitted that since the 10th condition
was arbitrary, absurd and illogical, the BMC should not be
permitted to enforce the same and insist upon payment of
reinstatement charges and penalty. He submitted that even the
principles of natural justice and fair play were not complied
with before levying the above amount on the petitioners.
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
7. For the above reasons, Mr Shah submitted that the rule
in this petition may be made absolute and the bank guarantee
furnished by the petitioners discharged or returned to them.
8. Mr Sakhare, the learned Senior Advocate for the BMC,
submitted that the petitioners commenced laying of water
mains without obtaining any permission from the BMC. He
submitted that even the works were not undertaken or
completed in terms of the permission dated 10 May 2005. Mr
Sakhare submitted that letters were written to the petitioners
from time to time, pointing out the defaults and deficiencies.
Still, no cognisance was taken of such defaults and
deficiencies. He submitted that even the work was not
completed within the prescribed period. He submitted that as
a result of such delays, defaults, and deficiencies, other BMC
projects suffered.
9. Mr Sakhare relied upon the policy guidelines to grant
permissions to utility and municipal agencies for excavation
and reinstatement after that. In particular, he relied upon the
schedule for penalties and submitted that there was provision
for recovery of actual costs where there were damages to
Municipal Utility or other Utilities. He submitted that clause
10 of the permission, dated 10 May 2005, was consistent with
such policy guidelines that were binding upon the petitioners.
10. Mr Sakhare submitted that in the above circumstances,
the BMC was justified in demanding reinstatement charges or
levying a penalty of Rs.50,000/-- on the petitioners.
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
11. Mr Sakhare submitted that this petition involves
disputed questions of fact. He submitted that the petitioners
had pleaded a false case, even though the record shows that
the petitioners delayed and defaulted on the execution of
works, thereby causing severe damage to the BMC and public
interest.
12. The rival contentions now fall for our determination.
13. The petitioners have pleaded that they commenced the
work of laying the water mains after obtaining permission
from the BMC. Prima facie, this may not be entirely correct.
The stop work orders were issued after the work commenced,
and the petitioners did stop the work and apply for
permission.
14. The permission was granted on 10 May 2005. The
Petitioners do not quarrel with 9 out of the 10 conditions in
the permission dated 10 May 2005. However, the petitioners
have a serious objection to the 10th condition, which reads as
follows:-
"10) The necessary R.I. charges of Rs.48,36,150/- and a
penalty of Rs.50,000/- shall be paid in the office of Dy.
Chief Engineer (Roads) Eastern Suburbs, Pant Nagar
Garage Bldg., 5th Floor, Behind B.E.S.T. Depot, Ghatkopar
(East), Mumbai -400 075."
15. The BMC has justified the 10th condition by contending
that the petitioners commenced works without permission
and, further, even the works were not completed within the
assigned time or by following all the conditions (excluding the
10th condition).
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
16. There are assertions on either side supporting their
respective versions. Photographs have also been produced by
both parties in support of their respective versions. There are
seriously disputed questions of fact as to whether petitioners
commenced work after obtaining permission, whether the
petitioners completed the works within the prescribed period,
whether the petitioners complied with conditions subject to
which permissions were granted to them and so on. Some
decision would be necessary on all these questions of fact
before we can rule upon the validity or otherwise of the
BMC's impugned demand. We cannot decide on all these
questions exercising our extraordinary but summary
jurisdiction under Article 226 of the Constitution of India.
Decisions on such issues may be necessary, but we cannot
adjudicate such questions under the summary proceedings.
17. Accordingly, it would not be appropriate for us to decide
all such disputed questions in this petition even though the
rule was issued on 18 April 2006. Such questions are best
adjudicated in a Suit, where both parties can lead evidence
supporting their respective versions. Therefore, we decline to
adjudicate upon this petition's disputed questions of fact. This
petition will, hence, have to be dismissed by granting the
petitioners liberty to institute a Suit, inter alia, to question the
levy of R.I. charges of Rs.48,36,150/- and penalty of
Rs.50,000/-.
18. If the petitioners institute a suit within two months from
today, then the trial court must consider the period spent by
the petitioners bona fide in pursuing this petition. This
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
petition was instituted on 13 May 2005 and is now being
disposed of on 19.09.2024. The petitioners spent This entire
period in bona fide pursuing their claims. Therefore, the trial
court must give due credence to this significant circumstance.
Mr Sakhare, learned Senior Advocate for the BMC, also, quite
reasonably, admitted that the petitioners were bona fide
pursuing this matter before this court.
19. As noted earlier, this court granted ad-interim relief in
this matter on 18 May 2005. Based on this ad-interim relief,
the petitioners were permitted to proceed with the works
upon furnishing the bank guarantee. The rule was issued in
this matter on 18 April 2006 with directions to the petitioners
to keep the bank guarantee alive pending the final disposal of
this petition. Mr Shah submitted that the bank guarantee has
been kept alive.
20. Accordingly, though we are disposing of this petition
and as a consequence of such disposal, we would have had to
permit the BMC to encash the bank guarantee, we direct the
petitioners to keep such bank guarantee alive but restrain the
BMC from encashing such bank guarantee for three months
from today. Meanwhile, if the petitioners institute a suit and
obtain ad-interim or interim orders, there will be no question
of the BMC encashing such bank guarantee. However, if no
suit is instituted with prior notice within two months from
today and no ad-interim or interim order is obtained within
three months, the BMC would be entitled to encash the bank
guarantee.
Godrej & Boyce Mfg. Co.Ltd. and Anr. v The
Municipal Corporation of Greater Mumbai and Ors.
WP-1507-2005-F.docx
21. The observations, if any, in this judgement and order or
in the interim order made by the learned Vacation Judge on
18 May 2005 should not influence the trial Court in deciding
the suit if instituted by the petitioners. The suit must be
decided based on the evidence laid by the parties and by
following the law. All contentions of all parties are left open.
22. This petition is disposed of in the above terms without
any orders for costs. All concerned to act on an authenticated
copy of this judgment.
(Kamal Khata, J) (M. S. Sonak, J)
