Dismissed

Abdul Hamid Ebrahim Chotani v. State of Maharashtra and Ors.

Bombay HC11 Sept 2014WP/5156/2014

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging Pune Municipal Corporation resolutions transferring school land in dispute since 1950. The Court held the petition was barred by gross delay and latches, refused to adjudicate factual disputes requiring evidence, and noted the existence of pending civil suits.

What did the court decide?

Writ petition dismissed. Parties to bear their own costs.

Abdul Hamid Ebrahim Chotani Vs State of Maharashtra and… — Specific Performance | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5156 OF 2014

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Abdul Hamid Ebrahim Chotani }
Age 74 years, Occupation: Retired
R/at 19, Khalik Villa,Ground Flor,
Balamiya Lane, Mahim, }
Mumbai-400 016. .. Petitioner
vs
1. State of Maharashtra
2. The Secretary }
Urban Development Department,
Mantralaya, Mumbai-400 001.
3. Pune Municipal Corporation }
Through the Municipal Commissioner,
Shivajinagar,
Pune-411 005. }
4. Shikshan Mandal
Pune Municipal Corporation, }
Shivajinagar, Pune-411 005.
5. Bishop's Education Society,
Final Plot No.78, Kalyaninagar, }
Yerawada, Pune
6. The Court Receiver
High Court, Mumbai. } .. Respondents
… .
Mr.Dormann Dalal i/b Mr.Sugandh Deshmukh
and Mr.Sandeep Phatak for Petitioner
Ms.M.P.Thakur AGP for Respondent nos. 1 and 2.
Mr.Rishikesh Pethe for Respondent no.3
Mr.Vineet Naik Sr.Advocate i/b Mr.Sukand Kulkarni for
Respondent no.5.
Mr.S.S.Deshpande Court Receiver,High Court,
Bombay present in Court

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CORAM: A.S.OKA & G.S.KULKARNI,JJ DATE: 11.9.2014

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JUDGMENT (Per G.S.Kulkarni, J)

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By this petition under Article 226 of the Constitution of India the petitioner has inter alia prayed for the following reliefs :

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“(a) that this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction and order under Article 226 of the Constitution of India, 1950 quashing and setting aside the Standing Committee resolution dated 21^st February 2004 bearing No.1595 and the General Body Resolution of the Pune Municipal Corporation dated 20^th July 2004 bearing no.97;

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(b) that this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction and order under Article 226 of the Constitution of India, 1950 quashing and setting aside the entry of the name of the Municipal Commissioner of the Respondent Corporation made in B Form in respect of Final Plot No.80 and be pleased to direct the Respondents to make the entry of the petitioner's name in the record of Final Plot No.80;

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(c)that pending final disposal and hearing of this matter, stay may be granted by this Honourable Court to the implementation of the General Body Resolution and Standing Committee Resolution mentioned above in prayer clause (A).”

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In short the facts are:

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It is the petitioner's case that survey no.208 situated at Yerwada,

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Pune, admeasuring 6 hectares and 46 ares was original plot no.89 under the Draft Town Planning Scheme. Subsequently, this original plot was subdivided into final plot no.79 admeasuring 4 hectares 93.07 ares and final plot no.80 admeasuring 1 hectares 22.93 ares. The petitioner has raised a dispute as regards final plot no.80. (for short 'the said land')

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It is the petitioner's case that the said land land was subject matter of pending litigation in this Court as well as District Court at Pune. The dispute first arose in 1950 when a suit for partition bearing Suit no. 208 of 1950 was filed on the Original Side of this Court by the petitioner's father. By an order dated 14.3.1950 passed in the said suit the Court Receiver came to be appointed by this Court. The name of the Court Receiver was subsequently entered in the 7/12 Extract of the suit property. On 20.3.1950, a preliminary decree was drawn in the said Suit declaring the shares of the parties in the suit property and the suit was accordingly referred to the Commissioner for taking Accounts for partitioning the properties between the plaintiffs and the defendants.

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It is the petitioner's case that the deceased Mia Mohammed Chotani

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had appointed one Kishandas G.Madiwala to manage the suit property. After demise of Madiwalla his heirs claimed to hold the property in lieu of certain debt claimed. Therefore, a further dispute arose in the year 1952 with the Court Receiver filing Civil Suit No. 26 of 1952 before the Court of Civil Judge, Senior Division, Pune, against the widow of the said Madiwalla. A compromise was reached in the said Suit and a compromise decree was drawn on 16.7.1958 by the learned Joint Civil Judge, Senior Division, in which 1/4^th share of the suit land was awarded in favour of the said Madiwala. In the further proceedings of the suit on 21.7.1984 Court Receiver submitted a report to this Court and an order came to be passed on 25.7.1984 in terms of prayer clause (a) and (c) of the report of the Court Receiver which authorized the Court Receiver to partition the suit property by metes and bounds and record the same in the revenue records and hand over the respective shares of the parties by dividing the shares into various sub-plots.

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In the Town Planning scheme of 1977 prepared under the Maharashtra Regional Town Planning Act 1966 an area admeasuring 4271.50 sq.meters in final plot no.79 was reserved for a school and

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remaining portion was reserved as residential zone.As regards final plot No.80 admeasuring 12293 sq.meters, the same was shown as reserved for public and semi-public purpose. Final plot no.80 was reserved for primary school and ownership of the same has been shown in the name of the Commissioner, Pune Municipal Corporation.This was done without following the procedure laid down in the MRTP Act.In support of this contention the petitioner has placed reliance on the Court Receiver's Report No.96 of 2010 in Suit No.208 of 1950 and more particularly para 10 of the Court Receiver's Report.The petitioners also rely on an order dated 5.12.2003 passed by the learned Single Judge in the said suit. This order records the statement on behalf of the Municipal Corporation that possession of plot no. 80 was taken over under the town planning scheme and that the Court Receiver was directed to verify the factual position and submit a report before the Court in that regard. It is the petitioner's case that despite this order the respondent Municipal Corporation with full knowledge of the fact that dispute regarding Final Plot No.80 was pending passed a resolution through its General Body transferring the land to respondent no.5 Bishop's Education Society.The petitioner states that the resolution passed by the Standing Committee on 21.2.2004 and the

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General Body Resolution dated 20.7.2004 of the Pune Municipal Corporation final plot no.80 was given on a 99 year lease to the respondent no.5 at premium of Rs.2,26,12,136/- at yearly rent of Re.1/-. It is the petitioner's case that the respondent no.3 had no authority to transfer the suit property to the respondent no.5 and hence the transfer is bad and illegal. In support of this contention, the petitioner has relied on an order dated 17.6.2006, 28.7.2010 passed by the learned Single Judge of this Court which recognized that the property was in the custody of the Court Receiver since the year 1950. The petitioner also rely upon the various affidavits filed on behalf of the Municipal Corporation in the suit proceedings. The petitioner further relies on order dated 6.4.2011 passed by the learned single Judge of this Court to contend that the learned single Judge had given liberty to challenge entries by filing appropriate proceedings regarding the entries in Final Plot No. 80 by any party to Suit No.208 of 1950.

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On the aforesaid factual background, the petitioner has challenged the legality of Resolution No.1595 dated 21.2.2004 of the Standing Committee and the General Body Resolution No.97 dated 20.7.2004 of the

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Pune Municipal Corporation as also B Form prepared by the Town Planning Department. On behalf of the petitioner, it is urged that in view of the pendency of the suit in this Court since the year 1950 respondent no.3 had no right to transfer the lease or assign the property to the respondent no.5. It is urged that the B Form was in fact fabricated by the respondents in as much as source of Final plot 80 has been shown as survey no.206/AZ and that the Final Plot no.80 has been shown twice and further it is not explained as to how entry of final plot no.80 has been entered in Form B. It is submitted that the respondent no.3 has not produced any documents about entering its name in Form B. In support of his submissions, learned counsel for the petitioner has relied on the decision of the Supreme Court in case of A.V.Papayya Sastry vs Govt.of A.P. (2007) (4) Supreme Court Cases 221 and a decision of the Division

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Bench of this Court in case of Bashir Ahmed Chand Shaikh vs State of Maharashtra reported in 2010 (2) BOM.C.R.224

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On behalf of the respondent no.3-Corporation, the learned counsel has raised a preliminary objection to the maintainability of the present petition on the ground that the same is barred by delay and latches. It is

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submitted that the petitioner is questioning the Resolution of the Standing Committee dated 21.4.2004 and the General Body Resolution dated 20.7.2004 by filing this petition on 20.3.2014. He submits that there is no explanation whatsoever in regard to the gross delay and latches in invoking the extra-ordinary and equitable jurisdiction under Article 226 of the Constitution of India. He submits that even on merits the petitioner's contentions are untenable from the documents on record he submits that the petitioner-Shri.Abdul Hamid Ebrahim Chotani on behalf of the Mulani Chotani had participated in the arbitration proceedings undertaken in regard to the town planning scheme published under section 61 of the Maharashtra and Regional and Town Planning Act 1966. (for short 'MRTP' Act). It is submitted that the State Government had accorded sanction to the draft town planning scheme under Resolution No.TPS-1872/5304-W-II (a) dated 12.12.1972 and by the same resolution had appointed an Arbitrator for finalizing the scheme. It is submitted that Multani Chotani participated in the arbitration proceedings before the Arbitrator on 30.5.1974 by producing a letter of authority from the Solicitors of the Court Receiver authorising him to appear in the arbitration proceedings. It is submitted that the Arbitrator after following the procedure prescribed

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under the MRTP Act,1966 rendered a final decision as regards Final plot no.80 which was reserved and allotted to the Pune Municipal Corporation on 5.2.1977. It is submitted that the Arbitrator had communicated the decision taken by him in respect of each plot to the owners or persons interested in form No.5. The arbitrator had published a notice dated 18.2.1977 in the Official Gazette and the same had appeared on pages 933 and 934 Part 1 Supplementary of Maharashtra Government gazette of Poona Division dated 24.2.1977. It is stated that Shri A.M.Chotani thereafter issued a letter to the Arbitrator intimating his inability to pay the rent as demanded by the Arbitrator. On or about 23.10.1980 the President, Tribunal of Town Planning Appeals, Town Planning SchemeYerawada No. 1 (Final) delivered his judgment containing the decision of the Tribunal constituted under section 72 (3) of the MRTP Act, 1966 in respect of town planning scheme – Yerawada No.1. An appeal filed by Mr.A.M.Chotani was also disposed of by the said decision dated 23.10.1980. The Arbitrator thereafter submitted a final scheme to the Government for a final decision in or about 9.1.1981 that under the town planning scheme, Final plot No.80 was shown as reservation for the purpose of a primary school. On behalf of the Corporation it is pointed out

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that on 5.4.1987 the Assistant Engineer Town Planning Scheme Pune issued a notice to the Court Receiver and informed him that it had been proposed to take over possession of the land under 40 feet TPS Road reserved land for primary school and reconstitution of F.P.No.78 on 27.4.1987. That on 2.5.1987 the Assistant Engineer, Town Planning scheme issued a notice to the Court Receiver that it has been proposed to take over possession of the land under the 40 ft TPS Road reserved land for primary school and reconstituted Final plot no.16 and Final Plot No.78. On 26.10.1989 the Assistant Engineer, Town planing scheme Pune issued a letter thereby informing the parties including the Court Receiver about taking over possession and vesting of Final plot no.80 with the Pune Municipal Corporation. It is submitted that the petitioner is therefore, not correct in raising a dispute to the legality of the possession in the present proceedings. It is submitted that the petitioner at all material times was aware of the position of Final plot no.80 as also of the arbitration proceedings under the Town Planning scheme. It is therefore, submitted that the petitioner cannot maintain the prayers as made in the present petition.

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Having considered the issues as raised on behalf of the petitioner as also having examined the documents as annexed to the petition, we do not feel that this is a fit case in which we can exercise our jurisdiction under Article 226 of the Constitution of India. This is for two-fold reasons. Firstly, that the petitioner has approached this Court raising a challenge to the Standing Committee Resolution and the General body Resolution of Respondent no.3 Municipal Corporation passed in the year 2004. This writ petition admittedly is filed after a period of 10 years. There is not a whisper of averments on the part of the petitioner so as to explain the gross delay in approaching this Court with these prayers. It is a settled position in law that in invoking writ jurisdiction under Article 226 of the Constitution of India, a litigant is required to be diligent and approach the Court at the earliest given opportunity. In the present case, it is clear that the petitioner was aware about the status of the Final plot no.80 and that the same was subject matter of a Town planning scheme and would be utilised for the purpose of a school. It is further clear that on behalf of the petitioners there was a participation in the statutory arbitration proceedings undertaken under the MRTP Act, 1966. The decision of the Arbitrator appears to have attained finality in view of the final Notification

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being issued. This Notification under the Final town planning scheme at no point of time was challenged on behalf of the petitioners. This clearly show that the petitioner completely conceded and accepted the position in regard to the said plot which culminated in the final Notification being passed by the State Government which was the outcome of the arbitration proceedings. Despite this, the petitioner on the basis of the certain material which is part of independent litigation have taken a chance to approach this Court by filing the present petition. We have no manner of doubt that the present petition is barred by the principles of delay and latches and deserves to be dismissed on this ground alone.

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Apart from gross delay and latches, the petitioner has raised various factual disputes which cannot be gone into by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India namely as to whether possession of Final plot no.80 was validly taken by the Pune Municipal Corporation, and as to when the said possession was taken, as to what are the documents involved in the whole process there are are all matters which require evidence to be led. We refuse to entertain a challenge which is based on such disputed factual foundation

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in exercise of our extra-ordinary jurisdiction under Article 226 of the Constitution of India.

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There is one more reason as to why we refrain to exercise our writ jurisdiction in the facts of the present case and that is in view of the complete litigious background in regard to the whole issue. It is clear from the various documents that there is a chequered history of litigation from the year 1950 and there is a litigation still pending in the form of a Suit inter se between the private parties as also involving the respondents which is clear from a reading of the Court Receiver's report. If the parties have any enforceable civil rights, it was always open for the parties to get the same adjudicated by filing appropriate proceedings in regard to the plot in question. The decisions cited on behalf of the petitioner are thus squarely not applicable in the facts of the present case and reliance on these decisions is wholly uncalled for.

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We do not appreciate the attempt on the part of the petitioner to assert such belated grievances on the basis of pleadings and orders passed in collateral proceedings. The writ petition is patently misconceived.

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