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2008 Supreme(Bom) 948
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
S.B. MHASE & A.A. KUMBHAKONI, JJ.
The BEST Workers Union - Petitioner
Versus
The State of Maharashtra & Ors. - Respondents
WRIT PETITION NO. 2296 OF 2007
Decided on : 4th July,2008.
Mr. V. M. Thorat i/b. Mr. Pramod Patil for the Petitioner.
Mr. Pradip Jadhav, AGP for the State. – Respondent No.1 and 6. Mr. C. U. Singh, Sr. Counsel with Ms. S. M. Modle for MCGM – Respondent Nos. 2 and 3. Mr. D. G. Dhanure i/b. M/s. M. V. Kini & Co. for the Respondent No.4. Mr. V. A. Thorat, Sr. Counsel with Mr. D. G. Dhanure and Mr. Vaibhav Sugdare i/b. M/s. M. V. Kini & Co. for the Respondent No.5. Mr. Janak Dwarkadas, Sr. Counsel with Mr. Parimal Shroff, Mr. Subodh Joshi, Ms. Radhika Kalpatrai i/b. M/s. Parimal Shroff & Co. for the Respondent No. 7.
Headnote:
The High Court of Bombay held that the Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37 of the MRTP Act, 1960, was valid and legal. The Court also held that the suit property was not a separate plot as defined by Section 2(21) of the MRTP Act, 1966 and could not be considered as an independent and separate piece of land inasmuch as the applicability of DCRs was concerned. The Court further held that the Agreement for Development dated 18.5.2007 entered into by and between BEST and the 7th Respondent was only an executory agreement which contemplated and, at the highest, assured execution of lease in future and did not create a lease in praesenti. The Court also held that the said Agreement did not create any right, title or interest in the suit property in favour of the 7th Respondent being only “Agreement for Development”.
Fact of the Case:
The Petitioner, a Recognised Representative Union of workers of “Brihan Mumbai Electric Supply and Transport Undertaking” (BEST), filed a Petition in the High Court of Bombay challenging the Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37 of the MRTP Act, 1960, on the ground that it was issued in breach of mandatory provisions of Section 37 of the MRTP Act, 1960. The Petitioner also challenged the decision of the BEST to allot the suit property to the 7th Respondent for commercial development, the Resolution dated 6.11.2006 of the BEST approving the Agreement with the 7th Respondent for development of the suit property, and the Building and other plans sanctioned by the said Corporation permitting the 7th Respondent to put up construction and/or make development on the suit property.
Finding of the Court:
The High Court of Bombay held that the Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37 of the MRTP Act, 1960, was valid and legal. The Court also held that the suit property was not a separate plot as defined by Section 2(21) of the MRTP Act, 1966 and could not be considered as an independent and separate piece of land inasmuch as the applicability of DCRs was concerned. The Court further held that the Agreement for Development dated 18.5.2007 entered into by and between BEST and the 7th Respondent was only an executory agreement which contemplated and, at the highest, assured execution of lease in future and did not create a lease in praesenti. The Court also held that the said Agreement did not create any right, title or interest in the suit property in favour of the 7th Respondent being only “Agreement for Development”.
Issues: 1. Whether the Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37 of the MRTP Act, 1960, was valid and legal? 2. Whether the suit property was a separate plot as defined by Section 2(21) of the MRTP Act, 1966 and could be considered as an independent and separate piece of land inasmuch as the applicability of DCRs was concerned? 3. Whether the Agreement for Development dated 18.5.2007 entered into by and between BEST and the 7th Respondent was only an executory agreement which contemplated and, at the highest, assured execution of lease in future and did not create a lease in praesenti? 4. Whether the said Agreement created any right, title or interest in the suit property in favour of the 7th Respondent being only “Agreement for Development”?
Ratio Decidendi: 1. The Court held that the Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37 of the MRTP Act, 1960, was valid and legal as it was issued in compliance with the mandatory provisions of Section 37 of the MRTP Act, 1960. 2. The Court held that the suit property was not a separate plot as defined by Section 2(21) of the MRTP Act, 1966 and could not be considered as an independent and separate piece of land inasmuch as the applicability of DCRs was concerned, as the suit property was only a portion of a larger tract of land and was not numbered and shown as one plot in the town planning scheme. 3. The Court held that the Agreement for Development dated 18.5.2007 entered into by and between BEST and the 7th Respondent was only an executory agreement which contemplated and, at the highest, assured execution of lease in future and did not create a lease in praesenti, as the said Agreement did not create any right, title or interest in the suit property in favour of the 7th Respondent. 4. The Court held that the said Agreement did not create any right, title or interest in the suit property in favour of the 7th Respondent being only “Agreement for Development”, as the said Agreement only contemplated creation of a lease of the tenement and/or residential/commercial construction to be put up on the suit property and did not contemplate creation of a lease in anybody's favour in regard to the land underneath the construction i.e. the suit property or part thereof.
Final Decision: The High Court of Bombay dismissed the Petition and discharged the Rule with no order as to costs.
1. The petitioner is a Recognised Representative Union of workers of “Brihan Mumbai Electric Supply and Transport Undertaking” (hereinafter referred to as the “BEST” for the sake of brevity), which is an Undertaking of the Municipal Corporation of Greater Mumbai (hereinafter referred to as the “said Corporation” for the sake of brevity). The 2nd Respondent herein is the said Corporation and 4th Respondent herein is the BEST. 5th Respondent herein is the General Manager of BEST who has been made party by his name. The 1st respondent is the State Government.
2. The dispute between the parties in the present petition is in respect of a piece of land. Normally, we would have referred to it as “a plot”. However, we are not doing so as there is controversy amongst the parties as to whether in law, this piece of land in issue can be referred to as “a plot” or not. This piece of land which is the subject matter of the present writ petition admeasures 27,913.93 sq. meters and is a part of Survey no. 6 (part)i.e. City Survey no. 1(Part) of Village Goregaon, Oshiwara, Mumbai, (hereinafter referred to as “the suit property” for the sake of brevity). For the purpose of identification of the suit property, at least in the beginning, we must state that the suit property has been marked as “Plot No.2A” by the BEST in its records,though it is the specific contention of the Respondents that the larger portion of CTS No. 1(part) which admeasures 1,54,082.40 sq. meters ( hereinafter referred to as 'the said large track of land' for the sake of brevity) has not been sub divided into various plots in the eyes of law. We will refer to this controversy at some length at an appropriate stage hereunder. Be that as it may.
3. In the beginning we give hereunder the admitted, but only relevant, Chronology of Dates and Events to understand the facts of the case with some precision. This Chronology will be also handy at the later stage of this Judgment when we will be considering the contention of one of the contesting Respondents i.e. Respondent No. 7, the Developer, that this Petition is liable to be dismissed on the ground of delay and latches, apart from other grounds taken up in defense. 13 th April 1973 :By way of Land Acquisition Award bearing No. LAQ 6748 an area of 95,721 sq. meters out of Survey No. 6 was acquired for Staff Housing of BEST workers and was handed over to the BEST. 29 th August,1974 : By way of Land Acquisition Award bearing No. LAQ 280 an area of 5836.14 sq. meters out of Survey No. 6 was acquired for Staff Housing of BEST workers and was handed over to the BEST. 23 rd October,1989 : A Lay Out Plan for subdividing the said large track of land was prepared. In this Lay out Plan, the suit property has been marked as Plot No.2A. 11 th May, 1993 : The Revised sanctioned Development Plan prepared under Maharashtra Regional and Town Planning Act, 1960 (hereinafter referred to as “the MRTP Act”) came into force in which the said large track of land including the suit property was reserved for “BEST Bus
