Dismissed

Ashok B. Desai v. State of Maharashtra and Ors.

Bombay HC27 Feb 2014PIL/87/2012

Case brief

AI extract

What is this about?

Petitioner filed a PIL seeking commission of inquiry into alleged violations of the ULCR Act and diversion of surplus land. The court dismissed the petition, noting the delay in challenging the order, the repeal of the Act, and the existence of pending litigation affecting slum dwellers.

What did the court decide?

Petition purported to be public interest litigation dismissed; no commission of inquiry ordered.

Ashok B. Desai Vs State of Maharashtra… — Constitutional and Fundamental Rights | Bombay HC (2014)

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

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PIL PETITION NO. 87 OF 2012

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Ashok B. Desai .. Petitioner

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V/s

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State of Maharashtra & Ors. .. Respondents

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Mr. A.K. Singh i/b Lex Remedeum for the petitioner. Mr. S.U. Kamdar, Senior Advocate, with Mr. B.K. Bali i/b Bali Associates for respondent no.5.

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Mr. H.C. Mehta with Mr. Vishal Mehta i/b Mehta & Co. for respondent nos.6 and 8.

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Ms. Geeta Shastry, A.G.P. for the respondent State. Ms. S.M. Modle for the respondent – BMC.

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CORAM : MOHIT S. SHAH, CJ M.S. SANKLECHA, J.

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DATE : 27 FEBRUARY 2014

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P.C. :

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By this petition purported to be a public interest litigation, the petitioner who claims to be a social worker has prayed for the following reliefs:

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(a) That this Hon'ble Court be pleased to issue the writ of certiorari to call for the records and proceedings of the subject case and, after examining the various violations of the said Act (caused by playing fraud and collusion by the respondents, which have deprived various public utility service to the public at large), to direct

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the suitable investigating agency or any other Competent Authority or any competent officer of the respondents no.1 to 3 to conduct an enquiry into the entire matter to determine the various violations of the provisions as aforesaid under the framework of the repealed Act or otherwise to determine the actual loss caused to the public at large or alternatively determine heavy monetary loss caused to the exchequer and submit its report to this Hon'ble Court.

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(b) And, after examining the same, it is further prayed that this Hon'ble Court be pleased to issue a writ of Mandamus issuing directions to the respondent nos.5, 6 and 8 to pay or make good the monetary loss caused to the exchequer.

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(c) The respondents be further dealt with in accordance with provisions of criminal law if the fraud, collusion etc. is revealed prima facie in the preliminary enquiry.

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(d) (i) The respondent nos. 6 and 8 be restrained from continuing with the construction on the subject plot;

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(ii) The respondent nos. 6 and 8 be restrained from creating any third party rights and/or handing over possession of the premises which are under construction on the subject plot.”

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The respondent no.5 is a public charitable Trust under the Bombay Public Trust Act, 1950. The respondent no.5 filed on 8 June 1995 a declaration under the provisions of section 8 of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as “ULCR Act”) declaring the total holding of 91841.2 sq. mts. in village Mulgaon, Taluka Andheri. By an order dated 30 August 1995, the Additional Collector & Competent Authority after making a plotwise scrutiny declared the land admeasuring 53625.8 sq. mts. as surplus vacant land. Thereafter the respondent no.5 Trust applied for exemption under section 19(1)(iv) of the ULCR Act as a public charitable Trust as the land was required for public charitable purposes of the Trust. By an order dated 5 April 1997 read with corrigendum dated 30 April 1997, the State Government in the Housing and Special Assistance Department granted exemption in respect of all the lands, which were earlier declared to be vacant surplus land, under section 19(1)(iv) of the ULCR Act including CTS No.82 in the following terms:

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“2. Upon scrutiny of documents enclosed following facts has been noticed by government

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(1) All India Sobardiya Sangam Trust is registered and its No. is F-917 (Mumbai) dated 8^th January 1963.

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(2) As per memorandum of Association the Trust is going to use the additional vacant land held by Trust for achieving their objectives public library, old age home, educational center, hall etc. purpose.

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As per section 19(1)(iv) of the Urban Land (Ceiling & Regulation)Act, 1976 the referred trust can hold vacant land for their own objectives and Chapter 3 (sections 3 to 24) of the Act is not applicable to the vacant land held by it. Therefore as per the objectives of Trust and provisions of sanctioned Development Control Regulation of Bombay Municipal Corporation government is not having objection for developing the subject land. But for any reason if the Trust wants to transfer the said land to any other person/Trust/society, then prior permission of government will be required to be obtained.”

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It is the case of the Trust that after the aforesaid exemptions were granted, the Trust found that its lands surrounded one piece of land bearing CTS No.61 which belonged to one Cawasji Dinshaw and Mrs. Makki Patel. On account of encroachment on the said land, the respondent no.5 Trust was obstructed from full, free and unrestricted use of their land. Therefore, the respondent no.5 accordingly entered into a Memorandum of Understanding (MOU) dated 30 June 2005 with respondent no.6, i.e. Developer granting development rights for development of land bearing CTS No.82 which admittedly belonged to respondent no.5 Trust and the respondent no.6 handing over the vacant possession of land bearing CTS No.61 after removing encroachments thereon. The respondent no.5 Trust also obtained permission of the Charity Commissioner to implement the aforesaid MOU dated 30 June 2005 and by an order dated 26 July 2006, the Joint Charity Commissioner, Mumbai granted permission to respondent no.5 Trust under section 36 of the

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Bombay Public Trust Act. The said permission granted by the Joint Charity Commissioner came to be challenged in two writ petitions being Writ Petition No.2320 of 2006 and Writ Petition (L) No. 2270 of 2007. Both these writ petitions came to be dismissed by this Court as per judgment and order dated 17 October 2006 and 29 August 2008 respectively.

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In order to remove the encroachment from the plot bearing CTS No.61, it was also necessary for respondent no.5 to provide alternative accommodation to the encroachers on CTS No.61 and, therefore, an agreement between respondent no.5 and respondent no.6 provided for construction of buildings on CTS No.82 as per the Joint Development Agreement dated 27 January 2007. On the basis of the said Agreement, the respondent no.6 and M/s Aditi Constructions have jointly developed the property and constructed two multi storey buildings thereon, after obtaining permissions and sanctions from the Municipal Corporation of Greater Mumbai and the commencement certificate which was granted on 7 March 2008. The learned counsel states that both the buildings have been completed and they are now awaiting occupation certificate from the Municipal Corporation.

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In the prayer clause extracted above, the petitioner has not challenged any specific order of the authorities, but has prayed for appointment of an investigating agency to conduct an enquiry to determine the alleged violations of the provisions of ULCR Act “under the framework of the Repeal Act or otherwise” and to abs 5 of 11

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determine the alleged loss to the public at large or to determine monetary loss to the exchequer.

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In view of the above vague prayer, when we called upon the petitioner to point out the specific alleged violations, learned counsel for the petitioner made submissions to challenge the legality of the order dated 10 May 2007 (Exhibit J) passed by the Additional Collector & Competent Authority (ULC), Greater Mumbai which was issued as a corrigendum to the exemption order dated 5 April 1997 under section 19 of the ULCR Act.

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When confronted with the question of delay of 5 years in challenging the order of 2007, learned counsel for the petitioner has pointed out the statement made in para 8 of the petition, which reads as under:

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“The construction activities are under way on the subject land, which could not have been constructed upon but for the illegal change of its status from “surplus” to “occupied” land. Thus the violations are continuing. The petitioner has filed the present petition in time and without any delay or latches.”

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At the hearing, learned counsel for the petitioner submitted that the petitioner had to obtain information under the Right to Information Act and, therefore, it took some time for the petitioner to collect the facts. However, no particulars in respect thereof are pointed out by the petitioner.

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Learned counsel for the respondent nos.5 and 6 have vehemently submitted that after the order dated 10 May 2007 was passed by the Competent Authority under the ULCR Act, respondent no.6 developer obtained the necessary permission and sanction from the Municipal Corporation for Greater Mumbai and they have already constructed two multi storey buildings on the land bearing CTS No.82, to which the order dated 10 May 2007 pertains. It is submitted that challenging the legality of the said order after such length of time would gravely prejudice not only respondent nos.5 and 6 but also several slum dwellers who were occupying hutments on the land bearing CTS No.61 and who are being allotted alternative permanent premises in lieu of their hutments on the land bearing CTS No.61. Learned counsel have also invited our attention to the history of litigation initiated by those slum dwellers in the City Civil Court and the interlocutory orders passed by the City Civil Court as well as by this Court in Appeal from Order arising therefrom and the judgment dated 21 July 2009 of the Supreme court in Civil Appeal No. 4583 of 2009. It is also submitted by the learned counsel for respondent nos.5 and 6 that after the plaintiff in that suit failed to obtain any interim orders, the present PIL has been filed and therefore the present petition purported to be a PIL is not a bonafide petition.

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It is further submitted by the learned counsel for respondent nos.5 and 6 that in any view of the matter what the petitioner has challenged is the corrigendum to the exemption order under section 19 of the ULCR Act, but with effect from 29 November

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2007 the ULCR Act 1976 has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. It is submitted that the repeal of the ULCR Act does not affect the vesting of any vacant land under section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. In the present case, the possession of land has admittedly remained with respondent no.5 on the date of repeal of the ULCR Act and, therefore, the ULCR Act, 1976 cannot apply to the land in question. It is submitted that the land which was declared as surplus vacant land by the order of 1995 was granted the benefit of exemption under section 19(1)(iv) of the ULCR Act. What the petitioner is now seeking is withdrawal of exemption, but in view of repeal of the ULCR Act, 1976 the exemption already granted way back in 1997 read with the corrigendum dated 10 May 2007 cannot be revoked.

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It is also submitted by the respondent nos.5 and 6 that all that corrigendum has done is to recognize the fact that out of the total area of 4151.5 sq.mts. of land forming CTS No.82, the same has been divided into three parts:

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CTS No. 82-B .. 3647.2 sq. mts. CTS No. 82-C .. 312.0 sq. mts. CTS No.82-D .. 192.03 sq. mts.

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The corrigendum clearly recognises that the City Survey Officer has inspected the site and prepared a plan showing that out of land bearing CTS No.82-B, the same is now divided into three parts. Out

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of CTS No.82-B of 3647.2 sq. mts. in the aggregate, the land admeasuring 1660.3 sq. mts. is land to be left as segregating distance. Land admeasuring 729.4 sq. mts. is reserved as recreational ground as per D.C. Rules and the same is required to be considered as non vacant land. The land admeasuring 1257.5 sq.mts. is also required to be treated as additional land appurtenant and, therefore, there is no surplus vacant land in CTS No.82-B in village Mulgaon, Taluka Andheri. So far as land bearing CTS Nos. 82-C and 82-D admeasuring 312 sq. mts. and 192.3 sq. mts. respectively are concerned, the same are entirely reserved for DP Road.

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It is submitted that the construction on land bearing CTS No.82-B has been put up to accommodate the slum dwellers who are displaced from the land bearing CTS No.61 and, therefore, any interference with the impugned orders passed by the authorities long back under the ULCR Act would unsettle and also deprive the slum dwellers of their alternative premises without the slum dwellers being parties to the present proceeding.

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The learned Additional Government Pleader for the State Government and its officers have also opposed the petition and submitted that no ground is made out for making any inquiries at this stage.

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Having heard the learned counsel for the parties, we find considerable substance in the submissions made on behalf of abs 9 of 11

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respondent nos.5 and 6 that the exemption order was granted in favour of the respondent no.5 Trust as far back as on 5 April 1997 and the said exemption was granted under the provisions of section 19(1)(iv) of the ULCR Act, which reads as under:

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“19. Chapter not to apply to certain vacant land.(1) Subject to the provisions of sub-section (2), nothing in this Chapter shall apply to any vacant land held by -

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(i) …. (ii) …. (iii) …. (iv) any public charitable or religious trust (including wakf) and required and used for any public charitable or religious purposes:

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Provided that the exemption under this clause shall apply only so long as such land continues to be required and used for such purposes by such trust.”

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Learned counsel for the petitioner sought to contend that since respondent no.5 has sold the land bearing CTS No.82 to respondent no.6, it indicates that the land was not required and used for purposes of the Trust and, therefore, the exemption ought to have been revoked. It is too late in the day for the petitioner to raise such contention when the provisions of the ULCR Act, 1976 has been repealed with effect from 29 November 2007. The contention that since the land was not used by the respondent no.5 Trust for its avowed purposes from 1997 till 2007 is also a grievance which cannot be made at this stage.

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The fact remains that the respondent no. 6 and M/s Aditi Constructions have already constructed two multi storey buildings on land bearing CTS No.82-B admeasuring 1257.5 sq. mts. and the petitioner cannot be permitted to raise any grievance about an order which was passed in May 2007 after passage of more than 5-6 years.

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We also cannot help referring to the fact that there is a pending litigation in the Bombay City Civil Court in respect of allotment of alternative premises to hutment dwellers in CTS No.61 in the multi storey buildings constructed on CTS No.82. The plaintiffs in the suit pending in the Bombay City Civil Court lost at the stage of notice of motion and thereafter in appeal before this Court as well as the Supreme Court. Therefore, entertaining the present petition would only mean allowing the plaintiffs in the said suit to get reliefs which they did not succeed in getting in the aforesaid proceedings and in the appeal proceedings before this Court and the Supreme Court.

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For all the aforesaid reasons, we are not inclined to entertain this petition purporting to be public interest litigation. The petition is dismissed.

CHIEF JUSTICE

M.S. SANKLECHA, J.

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Ashok B. Desai v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Ashok B. Desai v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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