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2012 Supreme(Bom) 2169
High Court of Judicature at Bombay
MOHIT S. SHAH & RANJIT MORE, JJ.
Nitin Shankar Deshpande
Versus
Registrar General & Others
Criminal Public Interest Litigation No. 12 of 2011
Decided on : 22-11-2012
For the Petitioner:Amit Karande with Ulhas T. Naik, Advocates.
For the Respondents:R1, Janak Dwarkadas, Senior Advocate with M.S. Karnik, R2, D.J. Khambata, Advocate General with V.R. Dhond, Special Public Prosecutor, Mrs. Revati Mohite Dere, N.P. Deshpande, AGP, R3, I.M.Chagla, Senior Advocate with F.E. Divitre, Sr.Advocate, J.P. Avasia, Zal Andhyarujina i/b. M/s. Dastur Dadhich & Kalambi, R4, Rafiq Dada, Senior Advocate with Amit Desai, Sr. Advocate, Shyam Mehta, Senior Advocate, C. Rashmikant, Murtuza Federal, Rohan Dakshini i/b M/s. Federal & Rashmikant, Advocates.
Headnote:Maharashtra Regional and Township Planning Act, 1966 - Section 37 - Development Control Regulations for Greater Mumbai, 1991, Regulation 9 - Modification in Development Plan.
Where reservation "housing for dishoused" was deleted therefore obligation upon owner is only restricted to handing over 10% of permissible built up area. - In a case where the land with the reservation "housing the dishoused" is allotted by the Government, for de-reservation the allottee would have to give away 10% built up area (100 sq. mts.) to the Municipal Corporation for housing the dishoused and then use the balance 90% (900 sq.mts.) area for himself and in addition get additional FSI of 10% (100 sq.mts.) to compensate for the 10% built up area given to the Municipal Corporation for housing the dishoused.
It is, therefore, clear that there is no obligation that the entire plot area has to be issued for the purpose of housing the dishoused. The reservation itself makes it clear that the obligation upon owner is only restricted to handing over 10% of the permissible built up area. In other words, for a plot admeasuring 10,000 sq.mtrs. with FSI of 1, the owner is free to use the entire FSI of the plot and construct 10,000 sq.mts. of built up area, subject to handing 10% built up area (1000 sq. mtrs.) over to the Municipal Corporation.
Maharashtra Regional and Township Planning Act, 1966 - Section 37 - Maharashtra L.R. (Disposal of Government Lands) Rules, 1971, Rules 27, 28 - Allotment of Land.
Allotment of Government Lands to Co-operative Housing Societies of Judges, without public auction, is legal and permissible under Rules 27, 28 of Rules, 1971. - There was nothing illegal in the allotment of Government lands without public auction to co-operative societies whose members were sitting Judges of High Court at the time of allotment of land. Since such co-operative housing societies of persons are treated as a special class for rendering public service and since allotment of lands to co-operative housing societies without public auction is not only legal but in fact is permissible under Rules 27 and 28 of Disposal of Government Lands Rules, there is no reason by Co-operative Housing Societies of Judges should be excluded.
Even in the past, lands have been allotted without auction for setting up of co-operative housing societies whose members were Judges. In future, of course, it may be desirable that applications of Co-operative housing Societies of sitting Judges of the High Curt for allotment of land may be routed through the Registrar General of the High Court.
CHIEF JUSTICE
In this petition, purporting to be public interest litigation, the petitioner claiming to be a public spirited citizen has challenged the allotment of plots admeasuring 1400 sq.mts. and 1500 sq.mts. by the State of Maharashtra to two cooperative housing societies-respondent Nos.3 and 4 respectively. The petitioner has also prayed for demolition of the existing structures constructed by the above respondents and has prayed for a direction to the State of Maharashtra to restore the original reservation granted in respect of the above plots. The petitioner has also prayed for a direction to the State of Maharashtra to take action against the State Government officers who had changed the reservation.
2. Before setting out the grounds of challenge, it is necessary to note that the allotment of land admeasuring 1400 sq. ms. was made in favour of respondent No.3 – Nyaysagar Co-operative Housing Society Ltd. (hereinafter referred to as “the Nyaysagar Society”) on 22 June 2004. Construction of the building having 16 flats commenced in April 2006. Construction was completed in December 2008 and the occupancy certificate was issued by the Municipal Corporation for Greater Mumbai on 30 March 2009. The present petition was, however, filed on 3 March 2011. The petitioner has not offered any explanation for the delay except stating that there is no delay in filing the PIL as the petitioner had made representation on 29 December 2010 to the Chief Minister, State of Maharashtra.
3. Similarly, respondent No.4 – Siddhant Co-operative Housing Society Ltd. (hereinafter referred to as “the Siddhant Society”) was allotted land admeasuring 1500 sq.ms. on 30 October 2007. Possession of the plot was handed over to respondent No.4 on 15 February 2008. Construction of the compound wall was carried out immediately thereafter. IOD for construction of the building was issued by the Municipal Corporation on 7 October 2008 and the construction of 11 flats commenced in January 2009 and has thereafter been completed. Here also the petitioner has offered no other explanation for the delay in filing the petition in March 2011.
4. In R & M Trust vs. Koramangala Residents Vigilance Group & Ors., (2005) 3 SCC 91, the Supreme Court has held that the sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends. The Court held that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. In the facts of that case, the construction was started in 1987 and stopped after the building had come up to three floors in 1988. In March 1991, it was resumed after permission was granted and the writ petition was filed in November 1991. In the meanwhile, construction was almost complete. The Supreme Court held that delay was fatal. Similarly, in Chairman & MD, BPL Ltd. vs. S.P. Gururaja & Ors., (2003) 8 SCC 567, the allotment made in the year 1995 was challenged in the writ petition filed after one year. By that time, the appellant company had not only taken possession of the land but also made sufficient investment. The Supreme Court held that the delay in that case had defeated equity and the delay of the nature should be considered to be of vital importance.
5. The above mentioned facts regarding allotment of land admeasuring 1400 sq.mts. in favour of respondent No.3 society in 2004 and land admeasuring 1500 sq.mts. in favour of respondent No.4 society in 2007 and commencement of construction of building in each case long prior to filing of the writ petition in 2011 would have been sufficient to dismiss the PIL on the ground of delay, but since the petitioner has alleged that the Government machinery acted in an illegal and arbitrary manner to do favour to the Judges of this Court, we heard the learned counsel
