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2003 Supreme(Bom) 179
IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
K.D. Pendse .... Petitioner.
Versus
Brihan Mumbai Mahanagar Palika others.... Respondents.
Writ Petition (PIL) No. 2147 of 2000, decided on 5/13-2-2003.
Advocates appeared :
R.DSouza with Ms. Jyoti Chavan, i/b Asif Patel, for petitioner.
Mrs. P.A. Purandare, for respondent No. 1.
R.M. Savant, Govt.P., for respondent Nos. 2 7.
Rajiv Patil, for respondent Nos. 3, 4 6.
Dr. Virendra Tulzapurkar with S.C. Dharmadhikari, for respondent No. 5.
Headnote:Bombay Municipal Corporation Act, 1888 - Section 351 - Validity of sanction of plan - Challenged with allegation of fraud - Contravening structures in between two sites - Contention that permission for higher FSI was received with fraud - Not a proper plea - Transaction was meant for whole road - Possession could not be handed over in full - Due to high encroachment - When efforts are already being made there is no grievance to be sorted out by Court. - The petitioner is not entitled to any relief. Apart from the affidavit in reply of respondent No. 3, from the counter affidavit of respondent No. 1 also, it is clear that the transaction entered into between respondent No. 1 and respondent No. 3 was in respect of final plot No. 736-A admeasuring 2090 sq. mtrs. (2100 sq mtrs. approximately). It is not in respect of land admeasuring 1848.53, as contended by the petitioner. The first respondent has also stated that possession of the entire
plot admeasuring 2090 sq. mtrs. could not be handed over to respondent No. 3, since there was contravening structure in existence. That, however, does not mean that the transaction which was entered into between the parties was only for land admeasuring 1848.53 sq. mtrs. The transaction was for the entire land of 2090 sq. mtrs. but because of the contravening structure, actual and physical possession of the entire land could not be given. Respondent No. 3 was, therefore, entitled to FSI on the basis of the entire plot admeasuring 2090 sq. mtrs. and not on the basis of 1848.53 sq. mtrs. Respondent No. 1 was also, therefore, right in considering plans and specifications and in deciding FSI on the basis of land admeasuring 2090 sq. mtrs. If it is so, obviously the petitioner has no occasion to make any grievance against such an action. Hence, even if it is assumed for the sake of argument that the petitioner has approached this Court as pro bono publico (though in the facts and circumstances of the case it appears that he has personal interest in the matter), no illegality can be said to have been committed by any of the respondents. The petition, therefore, deserves to be dismissed
2. It is the case of the petitioner that Brihan Mumbai Nagar Palika was the owner of land bearing Original Plot No. 736 (new Survey No. 736-A) of Final Town Planning Scheme IV of Mahim Division. The said land admeasured 2100.79 sq.mtrs, out of which 1848.53 sq. mtrs. was vacant while balance 252.26 was encumbered. By an agreement dated November 8, 1968, the Corporation agreed to grant on lease vacant portion of 1848.53 sq.mtrs. to respondent No. 3. The balance portion of 252.26 sq.mtrs. encumbered land was excluded. It was an agreement of lease for 99 years and respondent No. 3 had the status of monthly tenant. Respondent No. 3 constructed a ground and three storeyed structure on the said land and was running a school. According to the petitioner, it was subsequently revealed that the construction undertaken was illegal and unlawful and excess FSI was procured.
3. The entire exercise was fraudulent and it was based on misrepresentation by procuring property card extract that it was on the basis of total area of 2100.79 sq.mtrs. which was in fact 1848.53 sq.mtrs. The action was thus clearly illegal, unlawful and deserves to be interfered with by this Court. The respondents in collusion with each other fraudulently manipulated land record to secure FSI far beyond permissible limit for such land. Since no actions have been taken by the authorities, the petitioner has approached this Court. It was, therefore, submitted that the respondents may be directed to take appropriate proceedings. Corporation may be directed to recall its approval and sanction of the building plans and specifications of respondent No. 3 for development of the property and to reconsider and decide on the basis that such plans and specifications could be to the extent of 1848.53 sq.mtrs. only. A prayer is also made to initiate penal action for prosecution of trustees of respondent No. 3 as well as respondent Nos. 5 and 6 for wilful and deliberate misrepresentation and fraud.
4. Notices were issued, pursuant to which respondents appeared.
5. An affidavit in reply is filed by the Sub-Engineer of respondent No. 1, inter alia, stating therein that a plot bearing No. 736-A of Mahim Town Planning Scheme IV admeasuring 1848.52 sq.mtrs. was allotted to respondent No. 3 by an agreement dated November 8, 1968. It was, however, stated that the plot admeasured 2090 sq.mtrs. The area handed over and in possession of the lessee was 1848.52 sq.mtrs. The possession of the remaining area of about 252.26 sq. mtrs. could not be handed over to the respondents as there was existing contravening structure. As per the agreement of 1968, when a proposal was submitted by respondent No. 3 for construction of school building, plans were approved on the basis of the entire plot of 2090 sq.mtrs. and commencement certificate was granted. Respondent No. 3 could not proceed with the work as per the approved plan because of contravening structure existing on the said plot. The action of respondent-Corporation in sanctioning and approving the plan was, therefore, legal, valid and in accordance with law. It was also stated that the construction of the building was almost complete. No illegality was committed by respondent No. 1 in taking action on the basis of the agreement. It was, therefore, prayed that the contentions raised by the petitioner were not well founded.
6. Respondent No. 3 also filed an affidavit praying for dismissal of the petition in limine. It was contended that the petitioner was a partner of M/s. Bi
