Bhimraj Deepchandji Kothari Vs State of Mah. and 3 Ors.

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

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 P.I.L.No.145 of 2006

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 Bhimraj Deepchandji Kothari )
 an Indian Inhabitant of )
 Mumbai, aged about 55 years )
 Occupation business,residing)
 at Hanuman Mandir Marg, )
 Marol Gaon, Andheri (East) )
 Mumbai 400 059 ) ..Petitioner
 vs.

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 1. State of Maharashtra )
 through Urban and Land )
 Ministry having his office)
 at New Administrative )
 Building, Opp.Mantralaya )
 Mumbai 400 032 )
 2. The Additional Collector )
 and Competent Authority )
 (ULC), ULC Department, )
 Administrative Building, )
 near Chetana College )
 Bandra (E), Mumbai 400051)
 3. Tahsildar )
 Taluka Andheri, near )
 Navrang Talkies, Andheri )
 (West), Mumbai 400 058 )
 4. M/s Tyabji Estates )
 Private Limited, having )
 his officer at 1017/18 )
 Dalamal Towers, 10th )
 floor, Nariman Point, )
 Mumbai 400 021 ) ..Respondents

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 Mr.V.A.Thorat, Sr.Advocate i/b Mr.A.K.Pande and Co. for
 petitioner.

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 Mr.K.R.Belosey, Govt.Pleader for respondent nos.1 to 3
 Mr.Venkatesh Dhond i/b M/s Federal and Rashmikant for
 respondent no.4.

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 Judgment Reserved on: 21.6.2007
 Judgment delivered on: 19.7.2007

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CORAM: SWATANTER KUMAR C.J.
AND S.C.DHARMADHIKARIJ.
 19th July, 2007

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ORAL JUDGMENT: (Per S.C.Dharmadhikari J.)

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 1. The Public Interest Litigation prays for issuance of a
 writ of certiorari or any other writ, order or direction
 in the nature thereof to quash and set aside the order
 dated 14th December, 1999 passed under sec.8(4) of the
 Urban Land (Ceiling and Regulation) Act, 1976, for short
 ULC Act. The copy of the order impugned is at Exh.H to
 the petition.

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 2. The petitioner claims to be a public spirited citizen,
 social worker as also a businessman. The petitioner has a
 jewellery business at Andheri, Mumbai.

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 3. The grievance of the petitioner is that respondent
 nos. 1 to 3 have committed gross illegalities in granting
 permission to respondent no.4 for development on a plot of
 land bearing Survey Nos. 33 to 59 admeasuring in all 74
 acres 19.3/4 gunthas situate at village Majas, Taluka
 Andheri, Mumbai.

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 4. It is pointed out that one Ismail Mohammed was the

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 owner of this property and he had 3 sons. The said Ismail
 died intestate and the property has been transferred in
 the names of the sons of the deceased Ismail.

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 5. It is the grievance of the petitioner that by a
 Registered Conveyance two out of the three sons of the
 deceased Ismail transferred and sold this property to a
 third party and details of conveyance and the transferees
 are set out in the petition.

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 6. It is contended that the property was inheritted by 3
 sons of the deceased but no particulars of the third son
 joining in the deal are to be found. Therefore, it cannot
 be assumed that third son Suleiman has joined in the
 conveyance in favour of the transferee.

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 7. The transferees are Tyabji family. They have
 incorporated respondent no.4 which is a private limited
 company and original transferees have sold, transferred
 and assigned their right, title and interest in the
 property in favour of respondent no.4.

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 8. The principal grievance is that without ascertaining
 the details of all the sons of the deceased and also the
 authenticity of the documents, respondent nos. 1 to 3 had

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 permitted respondent no.4 to develop the property in
 accordance with the scheme filed under the ULC Act.

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 9. The details of the application made with regard to the
 computation of surplus vacant land and notice issued
 thereon so also the finalised statements are to be found
 in paras 15 to 19 of the petition. In the above said
 circumstances, Mr.Thorat, learned Senior Counsel appearing
 for the petitioner, submits that the order dated 14th
 December,1999 under sec.8(4) of the ULC Act is vitiated.
 According to the petitioner, if the records had been
 perused in their entirity and proceedings held in
 accordance with law, the computation of the surplus vacant
 land and the portion permitted to be retained by
 respondent no.4 could not have been arrived at by the
 authorities. In such circumstances, in public interest
 this order should be set aside.

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 10. Affidavits have been filed in reply to this petition
 by the State as well as respondent no.4.

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 11. The State through the Additional Collector, Thane,
 the Competent Authority, ULC, has pointed out that the
 land bearing C.T.S.Nos.166, 14, 167, 77, 78, 79 and 80

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 which is held by respondent no.4 forms one compact block.

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 There are authorised structures on these lands. The
 structures are shown in the original city survey plan by
 Black Ink and the tenure of the land is shown as
 Authorised Non-Agricultural use. It is in these

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 circumstances that the Competent Authority has worked out
 an area under the plinth and the land appurtenant of the
 structure i.e. they have been held as non Vacant Lands.
 The Authority has rightly allowed and excluded the
 structures as they were used as dwelling units. The area
 under Reservation was also treated as non vacant. It is
 in such circumstances about 500 sq.meters of land was
 allowed as within the ceiling unit. It was permitted to
 be retained. The other land is shown as provisional
 surplus vacant land. Thereafter the statement was
 finalised and the impugned order has been passed. The
 application under sec.20 seeking exemption was not decided
 because the statement under sec.8 was not finalised. Upon
 its finalisation under the impugned order, the authorities
 noted that there is no surplus vacant land. It is in
 these circumstances, that the impugned order has been
 passed.

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 12. Apart from these contentions, the respondents have
 challenged the maintainability of the petition on the

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 ground that the same is in pure private interest. It is a
 private dispute. It is filed at the instance of one Abid
 Bahadur Choudhary, the slum lord. The details about the
 said Choudhary and the petitioner being the power of
 attorney holder of the said Choudhary are set out in the
 affidavit of respondent no.4 and it is contended that this
 is not a bonafide public interest litigation.

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 13. Apart from that, both State as well as respondent
 no.4 appearing through their respective counsel have urged
 that the present petition is barred by delay and latches.
 The order under challenge is dated 14th December, 1999.
 After the said order, respondent no.4 has commenced
 development of the plot and he is constructing 10
 buildings having aggregate of 614 tenements. 5 buildings
 have been completed and 5 buildings are under
 construction. 5 buildings which have been completed
 contain in all 318 flats out of which 316 have been sold.
 In sofar as 5 buildings which are under construction are
 concerned, 296 flats are proposed therein out of which 115
 have already been sold. The third party rights have thus
 intervened. The flat purchasers have availed of Bank
 Loans by mortgaging these properties/flats. In such
 circumstances, this petition should not be entertained.

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 14. We enquired from the learned Senior Counsel appearing
 for the petitioner with regard to these facts and the
 learned Counsel has invited our attention to the affidavit
 in rejoinder filed by the petitioner. However, he was
 unable to offer any explanation with regard to the belated
 challenge. There is thus no explanation for the delay and
 latches. The petition is hopelessly delayed in as much as
 the petitioner being aware of the proceedings and the
 construction has not bothered to move this Court or any
 authority. This petition has been filed on 14th August,
 2006 to challenge the order dated 14th December, 1999.
 The seven years delay and complete silence about the
 knowledge of the petitioner about the progress of work at
 site are factors which cannot be brushed aside.

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 15. Hence, apart from the fact that the petitioner could
 not substantiate his challenge to the impugned order by
 demonstrating public interest involved, we find that the
 petition is hopelessly barred by delay and latches. In
 Chairman and M.D.,B.P.L.Ltd. Vs.S.P.Gururaja and other
 reported in AIR 2003 Supreme Court 4536 the Hon’ble
 Supreme Court has observed that the principle of delay and
 latches applies to public interest litigation as well. In
 this context this is what is observed by the Hon’ble
 Supreme Court.

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 "26. In Narmada Bachao Andolan Vs. Union of India
 and others (2000) 10 SCC 664), this Court opined:

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 "47. The project in principle, was cleared
 more than 25 years ago when the foundation
 stone was laid by late Pandit Jawahar Lal
 Nehru. Thereafter, there was an agreement
 of the four Chief Ministers in 1974,
 namely, the Chief Ministers of Madhya
 Pradesh, Gujarat, Maharashtra and Rajasthan
 for the project to be undertaken. Then
 dispute arose with regard to the height of
 the dam which was settled with the award of
 the tribunal being given in 1978. For a
 number of years, thereafter final clearance
 was still not given. In the mean time some
 environmental studies were conducted. The
 final clearance was not given because of
 the environmental concern which is quite

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 evident. Even though complete data with
 regard to the environment was not
 available, the Government did in 1987

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 finally give environmental clearance. It
 is thereaftrer that the construction of the

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 dam was undertaken and hundreds of crores

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 have been invested before the petitioner
 chose to file a writ petition in 1994
 challenging the decision to construct the
 dam and the clearance as was given. In our
 opinion, the petitioner which had been
 agitating against the dam since 1986 is
 gulty of laches in not approaching the
 Court at an earlier point of time.

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 "31. In the facts and circumstances, we do not
 find that the Board and the State had committed any
 illegality which could have been a subject matter
 of judicial review. The High Court in our opinion
 committed an manifest error insofar as it failed to
 take into consideration that the delay in this case
 had defeated equity. The allotment was made in the
 year 1995. The writ application was filed after
 one year. By that time the Company had not only
 took possession of theland but also made sufficient
 investment. Delay of this nature shall have been
 considered by the High Court to be of vital
 importance."

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 16. Tested on the touch stone of these principles w e

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 find that the petition is barred by delay and latches.
 The challenge is belated. Thus, without entering into the
 merits of the controversy, we are of the opinion that the
 petition deserves to be dismissed only on the ground of
 delay and latches. It is accordingly dismissed summarily.

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(CHIEF JUSTICE)

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(S.C.DHARMADHIKARI J.)

Bhimraj Deepchandji Kothari v. State of Mah. and 3 Ors.

Case brief

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Bhimraj Deepchandji Kothari v. State of Mah. and 3 Ors.

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