Dismissed

Jayshakti Co-Operative Housing Society Ltd. v. Pune Municipal Corporation and Ors.

Bombay HC20 Mar 2014WP/4916/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a cooperative housing society seeking compensation or restoration of possession for land reserved for a Development Plan Road. The court found the claim barred by laches due to a 30-year delay, inferred that the society had voluntarily handed over the land based on an undertaking, and held that no legal provision existed for FSI/TDR compensation at

What did the court decide?

Writ petition dismissed; parties to bear own costs. No compensation or restoration of possession granted.

Jayshakti Co-Operative Housing Society Ltd. Vs Pune… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 4916 OF 2006

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Jayshakti Co-operative Housing ] Society Ltd., Survey No. 38/A/1, ] Karvenagar, Pune 411 052 ] ..Petitioner

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versus 1. Pune Municipal Corporation ] having its office at Corporation ] Building, Shivajinagar, ] Pune 411 005 ] 2. The Commissioner, ] Pune Municipal Corporation ] having its office at Corporation] Building, Shivajinagar, ] Pune 411 005 ] 3. The State of Maharashtra ] Through Ministry of Urban ] Development, Mantralaya, ] Mumbai 400 032 ] 4. Director of Town Planning ] Central Building, Pune 411001] ..Respondents

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Mr. V.P. Sawant, and Mr. Prabhakar Jadhav for Petitioner Mr. Rajdeep Khadapkar for Respondent Nos.1 & 2 Mr. V.S. Gokhale, AGP for Respondent No.3

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CORAM : A. S. OKA & M. S. SONAK, JJ.

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Date of Reserving the Judgment : 18.02.2014 Date of Pronouncing the Judgment : 20.03.2014

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JUDGMENT ( Per : M. S. SONAK, J.) :-

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1] By this Petition under Article 226 of the Constitution of India,

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the Petitioner seeks following reliefs :

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“(a) this Hon'ble Court be pleased to direct the Respondent No. 1 Corporation to pay compensation to the Petitioner Society in respect of the area of 13880 sq. ft. out of S. No. 38/1, Hissa No.A, reserved for 60 ft. wide D.P. Road, as per law;

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(b) in the alternative, declare that the reservation for 60 ft. wide D. P. Road shown in the Revised Development Plan for the City of Pune on S. No. 38/1, Hissa No. A, stands lapsed and that the Petitioner is entitled to receive the land back as the Respondent Corporation has failed to complete the acquisition proceedings;”

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2] The Petitioner, which is a society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960, claims to be owner of property Surveyed under No. 38/1A admeasuring about 65,340 sq. ft., at Pune. In the Development Plan for the City of Pune, which came into force on 01.02.1967, portion of the aforesaid property admeasuring 13,880 sq. ft (“said property”) or thereabouts came to be reserved for construction of the 60 ft. wide Development Plan Road (D.P. Road). The reservation was continued in the Revised Development Plan which came into force with effect from 06.02.1987.

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3] In the year 1973, the Pune Municipal Corporation (PMC)

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granted development permission under Section 45 of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP”) for layout of plots. This is evident from the commencement certificate dated 17.08.1973.

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4] The Petition, without reference to numerous relevant events and circumstances which transpired between the years 1973 and 2005, makes reference to the notice dated 31.02.2005 issued by the Petitioner under Section 127 of the MRTP, calling upon the PMC to acquire the said property in accordance with law. The PMC, vide letters dated 17.02.2005, 11.03.2005 and 15.04.2005 rejected the purchase notice inter alia on the ground that the layout plan had been sanctioned by the PMC on the basis of the condition and undertaking furnished by the Petitioner society that the said property would be handed over to the PMC free of cost. In pursuance of the same, not only was such undertaking furnished by the Petitioner society, but also possession of the said property has been taken over and the DP Road came to be constructed and is being maintained by the PMC since then.

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5] The Petitioner, however contends that though the D.P. Road

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has been constructed and is being maintained by the PMC, no formal possession of the said property was ever taken over by the

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PMC. Further, at no stage had the Petitioner given any undertaking as aforesaid and in any case the condition contained in clause No. 17 of the development permission dated 17.08.1973 is illegal, null, void and unenforceable. The Petitioner further contends that in so far as the adjoining housing society i.e. Suvarnarekha Co-operative Housing Society is concerned, the PMC in virtually identical circumstances has granted additional FSI by way of compensation in respect of acquisition of property. In the circumstances, the Petitioner contends that there is no reason to adopt a different yardstick in so far as the Petitioner is concerned. For all these reasons, Mr. Sawant, the learned counsel appearing for the Petitioner has submitted that the PMC be directed to pay compensation corresponding to market value or FSI and in the alternate to declare that the reservation in respect of the said property stands lapsed and the possession of the said property be restored to the Petitioner. In support of the submission that clause

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17 of the development permission dated 17.08.1973 is void and unenforceable, Mr. Sawant placed reliance upon the ruling of the Supreme Court in the case of Pt. Chet Ram Vashist (dead) by LRs. vs. Municipal Corporation of Delhi¹ .

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6] The PMC has filed a return and a compilation of documents

1 (1995) 1 SCC 47

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by way of defence. Mr. Khadapkar, the learned counsel appearing for the PMC submitted that the Petitioner has suppressed material facts; the Petition involves highly disputed questions of facts and in any case the Petition is barred by gross and unexplained delay and laches. For all these reasons, Mr. Khadapkar submitted that this Court may refrain from exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. Mr. Khadapkar further submitted that the Petitioner at no stage challenged clause 17 of the development permission dated 17.08.1973, rather the Petitioner took advantage of the permission and acted on the basis thereof. The Petitioner society has voluntarily given up the possession of the said property, upon which the PMC has constructed the development road and the same is being maintained by the PMC since then. Mr. Khadapkar further submitted that even prior thereto, the said property was being used as an approach road by the plot owners / residents in the locality. From the contemporaneous material available on record, it is clear that the Petitioner had indeed furnished undertaking and further acted on basis thereof. On account of lapse of almost 30 years, the actual undertaking may be unavailable in the records of the PMC, however, this by itself does not entitle the Petitioner to take advantage of the situation and to seek relief of compensation or restoration of possession after a lapse of almost 30 years. For all

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these reasons, Mr. Khadapkar submitted that the Petition be dismissed.

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7] In the aforesaid facts and circumstances, the main issue which arises is, whether, the Petitioner did submit any undertaking as envisaged in the development permission dated 17.08.1973 and in pursuance thereof voluntarily hand over the said property to the PMC for the construction and maintenance of a D.P. Road almost three decades ago.

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8] Admittedly, such undertaking is not available in the records of the PMC. The Petitioner, in the correspondence with the PMC has been quite guarded in stating that copy of such undertaking was searched for, but is not found in the records of the Petitioner society. The issue whether such undertaking was in fact given or not, is clearly a disputed question of fact. However, there is contemporaneous material / record, from which the probabilities of the Petitioner having furnished such undertaking are substantially established. Accordingly, reference to such material and circumstances becomes necessary.

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9] It was the duty of the Petitioner to have placed on record the true and correct facts along with relevant documents / records. One

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of these would obviously include the development permission / commencement certificate dated 17.08.1973 granted under section 45 of the MRTP by the PMC to the Petitioner while sanctioning the layout. Clause of the development permission / commencement certificate dated 17.08.1973, reads thus :

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“17. The Society / Promoter will construct at its / his own cost Development Plan Road passing through / abutting the Society's / Promoter's land as per alignment to be given by the Pune Municipal Corporation. These Development Plan Roads should be treated as colony roads and their widths and carriage-ways should be as per standards given below:-

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These roads should be constructed as per directions of the Development Engineer and should be handed over to the Pune Municipal Corporation subsequently.”

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10] To the same effect, is the endorsement made upon the sanctioned plan. The commencement certificate dated 10.09.1982 also reiterates the very same condition. Relying upon the ruling of the Apex Court in the case of Pt. Chet Ram Vashist (supra), Mr. Sawant has contended that such clause is unenforceable. The Petitioner however did not bother to place such permission on

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record or even to seek any specific relief, in regard to the enforceability of the said clause.

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11] The PMC has produced on record a scrutiny report prepared by the Assistant Engineer (DP), which dates back to 10.07.1973, which clearly sets out that an undertaking with regard to the said property has been furnished by the Petitioner. Clause 4 of this noting, reads thus:

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“ Society has given an undertaking that an area 60 feet wide D.P. Road admeasuring 13,200 sq. ft. will be handed over to P.M.C. free of cost as this area is @ 20% of the total area under layout (Total area under layout 67,200 sq.ft.).”

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12] The PMC has also produced on record an internal noting of the year 1973, which records that as per the Chief Engineer's instructions, undertakings from both the Societies i.e. Jayshakti Cooperative Housing Society Ltd. and Suvarnarekha Co-operative Housing Society for handing over the area under the D.P. Road free of cost have been obtained. The said contemporaneous record makes it probable that the Petitioner, way back in the year 1973 had indeed furnished the requisite undertaking and in pursuance thereof handed over the said property to the PMC for construction and maintenance of the D.P. Road.

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13] Again, there is no dispute that such D.P. Road came to be constructed by the PMC and is being maintained by the PMC since then. For the period between 1973 and 2005, there is no correspondence emanating from the Petitioner demanding for any compensation or restoration of possession. Assuming that for a period of ten years from the notification of reservation, the Petitioner could not have made such demand, nevertheless such demand would be in order from 1977 when period of ten years from the date of reservation would expire. The first demand in this regard by the Petitioner, however was made in the year 2005. Possibly, such demand was fuelled by grant of increased FSI to the adjoining society i.e. Suvarnarekha Co-operative Housing Society in the year 1998. Even then, there is unexplained delay and laches. The PMC, in its return has categorically stated that the communication offering increased FSI to the adjoining housing society was a mistake and factually no such increased FSI has been offered to the society. Clearly, therefore, the Petitioner's plank of discrimination or the adoption of an unequal yardstick, fails.

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14] The relief of restoration of possession at this length of time, particularly after furnish of undertaking, handing over of possession, is clearly barred by unexplained delay and laches. Besides, Mr.

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Khadapkar, is right in his submission that the Petitioner has taken benefit of the development permission / commencement certificate issued in the years 1973 and 1982. Even in this Petition, there is neither any relief sought to declare clause 17 as null and void nor to quash and set aside the same. The only submission made in course of oral arguments was that such clause is void and therefore unenforceable. The settled position in law is that a party affected by any order or action, is required to take out appropriate proceedings before the appropriate forum and in appropriate circumstances, to get such order or action set aside or otherwise upset. Until this is done, the order or action remains valid and effective for its ostensible purpose as most impeccable of orders or actions. Further, there is requirement that such appropriate proceedings be taken out within the statutorily prescribed period, if there be any or otherwise within a reasonable period. Ultimately, even a Court will invalidate an order only where the right remedy sought by the right person in the right proceedings and circumstances.

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15] The decision in the case of Pt. Chet Ram Vashist (supra) is distinguishable on facts. In the said case there was no issue of the Petitioner itself handing over the reserved property in pursuance of an undertaking. In that case, there was no issue of unexplained delay and laches. Further, in the said case, the Supreme Court

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even after returning findings in favour of the Petitioner, made the following order:

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“7. Even then the question is, should we set aside the order of the High Court and the appellate court and restore that of the trial court or we may alter the order passed by the courts below so as to do substantial justice. We have opted for the latter course for the reasons to be mentioned hereinafter. The appellant's plan was sanctioned subject to the conditions imposed by the Corporation. He did not raise any objection immediately and appears to have proceeded to sell and transfer the land. The suit was filed after nearly one year from the date of sanction. The Corporation has been exercising right over the land in dispute as transferor, since then, for nearly a quarter of a century. In these circumstances interfering with the order of the High Court would be setting at naught settled state of affairs. It was also stated by the learned counsel for Respondent that the appellant has no land or house in the locality.”

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16] In the present case, grant of relief of restoration of possession to the Petitioner would also amount to setting at naught settled state of affairs. In this case, the Petitioner did not react against clause 17 of the development permission for a period of over 30 years. Even in this Petition, there is no relief sought for as against such a clause. In fact the Petitioner has taken advantage of the

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development permission. The basis that relief of increased FSI was granted to the adjoining housing society, no longer survives. The Petitioner cannot be permitted to take advantage of the circumstance that the actual undertaking that may have been furnished by the Petitioner is unavailable in the records of the PMC at this distance of time. On the basis of contemporaneous record and preponderance of probabilities, it is reasonable to proceed on the basis that such undertaking had indeed been submitted by the Petitioner. In exercising extra ordinary jurisdiction under Article 226 of the Constitution of India, we do not deem it appropriate to permit the Petitioner to resile from the same after lapse of 30 years.

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17] On the aspect of possession, it is too late to accept the Petitioner's contention that it continues to be in possession of the said property covered by the D.P. Road. The reliefs claimed for by the Petitioner, themselves, militate against this position. The records establish and there is no serious dispute that it is the PMC which has constructed the D.P. Road and it is maintaining the same since then. In any case, all these are disputed questions of fact, which cannot be conveniently adjudicated in the exercise of extra ordinary jurisdiction.

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18] There is no valid explanation for the delay and laches which

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are writ large in the facts and circumstances of the present case. This is not a case where the reservation can be said to have lapsed in pursuance of the Petitioner's notice dated 30.01.2005. This is a case where possession of the said property came to be handed over by the Petitioner itself almost three decades ago for the purpose of enabling the PMC to put up a D.P. Road. Said D.P. Road has been constructed by the PMC and is being maintained by the PMC since then. The Petitioner, after almost 30 years has come up with a plea that possession was never handed over by it to the PMC or that possession was taken over by the PMC 30 years ago without the authority of law. Such a plea would clearly be barred by laches.

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19] Mr. Khadapkar, learned counsel appearing for the PMC has placed for our consideration Building Bylaws of the year 1956 and Development Control Rules of the year 1982 as applicable to the PMC. Upon perusal of the same, we note that there was no provision in the year 1973 or thereabouts for grant of any FSI or Transferable Development Rights (TDR) in lieu of acquisition or reservations. In the circumstances, it is not possible to accede to the request of the learned counsel appearing for the Petitioner that at least FSI or TDR should have been granted to the Petitioner.

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20] In the case of Ramniklal N. Bhutta and Anr. vs. State of

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Maharashtra & Ors .² , the Supreme Court has observed as under:-

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“....Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay / injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest

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vis-a-vis the private interest while exercising the power under Article 226 – indeed any of their discretionary powers....”

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21] In the light of aforesaid, even if we proceed on the basis that the Petitioner has made out some legal point, it is not obligatory upon a writ court to grant relief in exercise of discretionary jurisdiction under Article 226 of the Constitution of India regardless of various other consequences. In the present case, apart from the circumstance that the Petitioner has not made out any case for grant of reliefs, we must note here that if any relief is granted at this

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distance of time, based upon the same, there is every possibility

2 (1997) 1 SCC 134

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that the PMC is flooded with similar stale claims. This will place an unduly disproportionate burden not merely on the coffers of the PMC, but also upon the town planning process. Thus, taking into consideration the totality of the circumstances and the interests of justice, we are of the opinion that no case has been made out to exercise the discretionary jurisdiction under Article 226 of the Constitution of India in the present case.

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22] For all the aforesaid reasons, we are of the opinion that the Petition is liable to be dismissed. Accordingly, we dismiss the Writ Petition. The parties are left to bear their own costs in the facts and circumstances of the present case.

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(M. S. SONAK, J.)

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Chandka

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Jayshakti Co-Operative Housing Society Ltd. v. Pune Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Jayshakti Co-Operative Housing Society Ltd. v. Pune Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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