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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, SANDEEP K. SHINDE, JJ.
The Municipal Corporation of City of Thane – Appellant
Versus
Mukesh Ramful Gupta – Respondent
First Appeal No.2211 of 2005
Decided On : 22-12-2017
Land Acquisition - Thane Municipal Corporation - Maharashtra Land Revenue Code, 1966, Bombay Land Revenue Code, 1879, Maharashtra Regional Town Planning Act, 1956, Bombay Provincial Municipal Corporation Act, 1949 - Section 122 of the Maharashtra Land Revenue Code, 1966, Section 126 of the Bombay Land Revenue Code, 1879, Section 154 of the M.R.T.P. Act - FSI 1:2 - The court held that the suit land was required to be treated as 'Gaothan' and the finding of the trial Court in that regard cannot be faulted. The court also held that FSI 2 was admissible for the suit land for its development. However, the court could not sustain the direction to issue an occupancy certificate due to lack of jurisdiction and directed the Plaintiff to submit an application to the Corporation for obtaining an occupation certificate of the building constructed on the suit land.
Fact of the Case:
The Plaintiff owned a land that was partially acquired by the Thane Municipal Corporation for a road widening project. The Plaintiff claimed that the Corporation promised to sanction FSI 1:2 for the suit land and thus, executed agreements with tenants to accommodate them in the new building. The Corporation issued a notice to stop construction work and directed the Plaintiff to submit a revised plan with FSI 1. The Plaintiff filed a suit seeking relief and declaration that the suit notice was illegal, malafide, and inoperative, and that the Corporation was not entitled to direct the Plaintiff to submit a revised plan. The Plaintiff also sought an injunction and occupancy certificate for the new building.
Finding of the Court:
The court declared the suit notice as bad in law, inoperative, and unexecutable. It also declared that the Corporation was not entitled to direct the Plaintiff to submit a revised plan/proposal on the basis of FSI 1 for its sanction and approval for construction of a new building in the suit property. The court directed the Corporation to issue an occupancy certificate and restrained it from interfering or demolishing any part of the building constructed by the Plaintiff on the suit property.
Issues: The issues included the legality of the suit notice, the entitlement of the Corporation to direct the Plaintiff to submit a revised plan, and the application of the principle of promissory estoppel.
Ratio Decidendi: The court held that the suit land was required to be treated as 'Gaothan' and the finding of the trial Court in that regard cannot be faulted. The court also held that FSI 2 was admissible for the suit land for its development. However, the court could not sustain the direction to issue an occupancy certificate due to lack of jurisdiction and directed the Plaintiff to submit an application to the Corporation for obtaining an occupation certificate of the building constructed on the suit land.
Final Decision: The court partly allowed the appeal, confirming the rest of the decree except for the direction to issue an occupancy certificate. The court directed the Plaintiff to submit an application to the Corporation for obtaining an occupation certificate of the building constructed on the suit land.
Sandeep K. Shinde, J.
The Thane Municipal Corporation Original Defendant in the Suit has preferred this First Appeal against the judgment and decree dated 10.3.2005 passed by the Civil Judge Senior Division, Thane in the Special Civil Suit No.647 of 1995.
2. Facts in brief of the suit are as follows:
Plaintiff is the owner of the suit land bearing Tika No.2 City Survey No.307 admeasuring 222.41 sq.mtrs. and City Survey No. 308 admeasuring 15.89 sq.mtrs. situated opposite Ashok Talkies near S.T.Stand, Gokhale Road, Chendani, Thane, known as Gupta Estate/House (Hereinafter referred to as 'Suit Property/Plot').
The suit property was purchased by the Plaintiff under registered deed of conveyance on 2.3.1978. It was occupied by the tenants on monthly rent for business/residential purposes. On 14.12.1987, the Special Land Acquisition Officer, Thane informed the Plaintiff about a portion of the land, the Corporation intended to acquire for road widening project. The Thane Municipal Corporation thus, demolished the part of the building and acquired part of the suit plot for road widening project. It is the Plaintiff's case that before demolition of the building, there were several negotiations and meetings between the landlord, tenants and Municipal officers. It is the Plaintiff's case that the then Municipal Commissioner Mr. Chaube promised the landlord that they would sanction plan for proposed building considering the cooperation solicited by the landlord and existing tenants and as such, landlord agreed to accommodate existing tenants in the new proposed building. It is the Plaintiff's case that on 29.11.1989 the then Municipal Commissioner promised to consider plaintiffs' case as a special case for sanction of FSI and building plan as Corporation wanted Plaintiff's portion of land for road widening. Plaintiff further pleaded that the Thane Municipal Corporation provided a suitable temporary accommodation to the tenants within their property or elsewhere.
3. It is the Plaintiff's case that in view of the road widening, the Corporation also vacated and shifted some of the Plaintiffs' old tenants at its own risk and cost. It is the Plaintiff's case that he obtained vacant possession as building was required to be partly demolished for carrying out work of construction of road widening. Plaintiff thus pleaded that the Defendant-Corporation compelled Plaintiff to execute the agreement with the tenants in the old building and all such agreements were executed at the instance of the Corporation. In the circumstances, Plaintiff wanted to construct new building as early as possible so as to accommodate old tenants in the new premises. Plaintiff thus had executed agreements with 11 tenants.
4. Plaintiff submitted plan and specifications of the suit property to the Defendant-Corporation through his architect and the Corporation sanctioned the said plans and specifications vide permit VP 88/341/TMC/TDD/704 dated 20.12.1991 and also issued commencement certificate of the same date 20.12.1991 (Hereinafter called as the 'Sanctioned Plans' and the said 'Commencement Certificate' respectively).
5. That as per the said Sanctioned Plans and as per the prevailing Development Control Rules of the Thane Municipal Corporation (Hereinafter referred to as 'D.C.Rules'), Plaintiff was permitted to use FSI 1:2. The said FSI 1:2 was sanctioned for the suit property because the same was in gaothan. In support of the claim that the suit property was in gaothan land, the Plaintiff had submitted to Corporation title documents along with certified copies of extract of the property card, enquiry register, site plans, etc. obtained from City Survey Officer, Thane. It is the Plaintiff's case that in the extract of the property register card, there was remark in the column of the tenure that the suit property was termed as 'C' (Mafi) i.e. Gaothan”. Plaintiff further pleaded that as per Section 122 of the Maharashtra Land Revenue Code, 1966 which corresponds to Sec
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