Bombay High Court
Laksh Nagri Seva Sanstha vs State Of Maharashtra And Ors on 23 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 988
Bench: S.C. Dharmadhikari, R.I. Chagla
suresh 908-PIL-127.2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.127 OF 2012
Laksh Nagri Seva Sanstha
Maharashtra State, Mumbai .... Petitioner
Vs.
State of Maharashtra & Others .... Respondents
Mr. P.M. Shah with Mr. Dishang Shah, Mr. Harsh
Gala & Mr. Chirag Unadkat for the Petitioner.
Mr. Abhay Patki, Addl. Government Pleader, for
the Respondent-State.
Ms Anchita Nair i/by Ms Sharmila Deshmukh for
Respondent No.4.
Ms K.H. Mastkar for the Respondent-MCGM.
Mr. S.R. Rajguru with Ms Nisha W. for Respondent
Nos.13 & 14.
Mr. Vishal Jathar i/by MDP & Partners for Respondent
No.19.
Mr. Aspi Chinoy, Senior Advocate, with Mr. Jai
Chabbaria, Mr. Rohan Dakshini, Ms Nikita Mishra
& Ms Kinjal Shah i/by Rashmikant & Partners for
Respondent No.20.
Mr. Aayesh Gandhi i/by Wadia Gandhy & Co. for
Respondent No.23.
Mr. Nilesh Tated with Mr. Sachin Shankar i/by DSK
Legal for Respondent No.24.
Mr. Aspi Chinoy, Senior Advocate, with Mr. Sharan
Jagtiani & Ms Sheetal Shah i/by Mehta & Girdharlal
for Respondent No.26.
Mr. Cyrus Ardheshir with Ms Nikita Panse i/by Veritas
Legal for Respondent No.27.
Mr. Kartikeya Desai with Mr. Asadali Mazgaonwala
i/by Kartikeya & Associates for Respondent No.30(a)
to 30(e).
Mr. P.N. Raut, Maintenance Surveyor, City Survey
Office, Mulund, and Ms Nanda Makane, Talathi,
Tahsildar, Kurla Office, present.
Page 1 of 99
suresh 908-PIL-127.2012.doc
CORAM: S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
DATE : JANUARY 23, 2020 P.C:
1. From the previous orders on this PIL, it is evident that the Court was inclined to entertain it. A formal order of admission of the PIL has not been passed. We pass it today.
Hence, Rule. The respondents appearing through Advocates waive notice and accept service.
2. On 27-11-2019, after hearing both sides, the following order was passed on this PIL:-
"1. Mr. Patki appearing for the State prays for time to take instructions and to file an affidavit.
2. This matter was adjourned on the last occasion because Mr.P.M.Shah, learned advocate appearing for the PIL petitioner, was in personal difficulty.
3. The PIL alleges large scale illegalities and irregularities so also unauthorised construction activity on lands, which are vesting in the State. It is alleged that the original lessees have created sub-leases and in the garb of a blanket regularisation, the irregularities are perpetuated.
4. From the petition itself, we have seen that there are complaints of this nature in relation to the lands in the Mumbai Suburban District. For instance, in para 28, Survey No.275, CTS No.657, Village Kanjur, Taluka Kurla, Mumbai Suburban District is stated to be a land belonging to the Government. It is reserved for public utility like District Centre Flower Market, Public Housing, Municipal Hospital, Fire Brigade Page 2 of 99 suresh 908-PIL-127.2012.doc etc. One of the usage contemplated is playground/ recreation ground. The complaint is that one Jolly Brothers and its sister concern Lodha Developers are jointly carrying out the construction work and that is overlooked by the statutory functionaries despite written complaints.
5. When such PILs are filed and repeatedly in this Court, the ever increasing number of such PILs depicts and demonstrates and rather proves that the State machinery is not functional. All Governmental and Executive functions are now expected to be taken over by this Court. When this Court does take over as an exception, the complaint is that there is undue interference by the judiciary. The authorities must realise that it is their inaction only which compels the members of the public to approach this Court by way of a PIL. Neither we are equipped nor we have the experience to discharge and perform the functions and duties of these statutory authorities. We are aware of the doctrine of separation of power enshrined in Article 50 of the Constitution of India. We respect that constitutional distinction. We are aware of the fact that we can only impress upon the Government machinery to take action and ensure that the lands, which are public properties and which the Government holds as a trustee for the public, are not encroached upon or taken over in the manner complained.
6. We are informed that now, there will be a new dispensation in power shortly. We expect this political dispensation to note our pain and anguish and not allow this Court to be flooded with any more PILs of this nature.
7. The matter is stood over to 2nd January, 2020 to enable Mr.Patki to file an affidavit setting out the steps taken therein."
3. A brief reference to the facts of this PIL is necessary. It has been filed by a non-governmental organisation claiming an interest in preserving and protecting public properties and Government lands. The respondents to Page 3 of 99 suresh 908-PIL-127.2012.doc this PIL are, the State of Maharashtra through the Department of Revenue and Forest, the Department of Social Justice & Empowerment, the District Collector (the Collector, Mumbai Suburban District), the Superintendent of Land Records, the Tahsildar, the City Survey Officer and the Officers of the above Departments functional in Mumbai, the Chief Forest Conservator, the Commissioner of Konkan Division, the Commissioner of Police, the Commissioner of the Economic Offences Wing of the police. These respondents are represented by the learned Additional Government Pleader Mr. Abhay Patki. The Deputy Salt Commissioner and the Commissioner of Salt, Government of India, are parties represented by the Advocate, namely, the Central Government Advocate. The rest of the parties are private entities claiming right, title and interest in certain lands. They have been impleaded because their claims are based, according to the petitioner, on some documents to which extensive reference has been made.
4. The petition concerns plot of land bearing Old Survey Nos.73, 74 & 169, New Survey Nos.57, 58, 59 & 275, CTS Nos.1293 (Part), 1294 (Part) & 657 (Part) of Mauja Kanjur, Taluka Kurla. The total area is stated to be 1668 acres and 24 gunthas. It is claimed that there are reservations for public utilities like District Centre, Flower Market, etc.. This land is Page 4 of 99 suresh 908-PIL-127.2012.doc stated to be belonging to the State of Maharashtra. In the petition, in para 2, it is stated that, several complaints have been made to the statutory authorities, bringing to their notice the irregularities and unauthorised construction work and fraud perpetrated on the public by private parties. The petitioner claims that there was a writ petition, being Writ Petition No.5792 of 1996, filed by one of the private entities and that petition is pending. There is an order of status quo passed on 14-1-1997 in that petition.
5. The petitioner states that originally Survey No.275 of Village Kanjur vested in the Khot of Kanjur Shri Mohamed Yusuf. There was an inquiry held under the Salsette Estates (Land Revenue Exemption Abolition) Act, 1951 ("the Salsette Estates Act"). That inquiry resulted in land admeasuring 1668 acres and 24 gunthas being vesting in the Government. There is a Property Registration Card ("PR Card"). The entire plot was declared as Government land. There is a reservation thereon and that is referred in para 5 of the petition.
6. It is claimed that the Government of Maharashtra is concerned with the area which has not been taken over by the Railways, by a power supply line and by salt pans. Thus, this area admeasures about 200 acres 15 gunthas and 4 annas and continues to be owned by the Government of Maharashtra. The Page 5 of 99 suresh 908-PIL-127.2012.doc petitioner says that out of the total 208 acres and 30 gunthas bearing the above survey numbers, the entire property was reserved for District Centre as well as other reservations. The remaining 14 acres was reserved for achieving the aims and objects of various public purposes, namely, industrial purpose as it was in I-Zone of "S" Ward, Village Kanjur, which is within the limits of the Municipal Corporation of Greater Mumbai.
7. The petitioner places reliance upon certain information derived by it from the statutory records.
8. It is stated that one Mohamed Yusuf Khot was claiming rights over the property. A suit was filed being Suit No.481 of 1953 in this Court's Ordinary Original Civil Jurisdiction. The suit was filed against the State of Bombay. In this suit, Consent Terms were filed on 11-10-1957 between the plaintiff and the defendant. The petitioner says that there was an inquiry pending under the Salsette Estates Act. During the pendency of this inquiry, Mohamed Yusuf Khot allegedly leased 80 acres of land out of Survey No.275 to M/s. Jolly Brothers Pvt. Limited, respondent No.19 to this petition. That is under a Deed dated 5-3-1957. That Deed in fact created a sub-lease for 999 years. The area is mentioned in the Schedule of the Deed, more particularly mentioned in Schedule-A thereto. A copy of this Deed is annexed as Exhibit "D" to the petition. The copy of Page 6 of 99 suresh 908-PIL-127.2012.doc the Consent Terms is annexed as Exhibit "E" to the petition.
9. The petitioner then says, in para 7, that a Sanad was executed by the Government of Maharashtra in favour of Anil Hardboard Limited (respondent No.25) in respect of part of the entire property admeasuring 1 acre 16 gunthas and 12 annas (approximately 6867 sq. yards). This is part of Survey No.72 and new survey numbers referred above, excluding 80 acres. The final Sanad was executed on 16-2-1967. A copy of this Sanad is annexed as Exhibit "F" to the petition.
10. Then there is a reference made to a sub-lease dated 5-10-1960 between Sir Mohamed Yusuf Khot Trust, Jolly Brothers and Anil Hardboard Limited. This document says that the Khot is the first sub-lessor, Jolly Brothers is the confirming party and Anil Hardboard Limited is a sub-lessee. There is a reference made to the immovable property which is covered by this sub-lease and it is said that it is part and parcel of the larger area referred in the foregoing paragraphs. This sub-lease is said to be illegal and its copy is annexed as Exhibit "G" to the petition.
11. Then it is said that in the year 1961, land admeasuring 4 acres and 21 1/2 gunthas was declared to be Government land and after due inquiry as per Section 37(2) of the Maharashtra Land Revenue Code, 1966 (''the Revenue Page 7 of 99 suresh 908-PIL-127.2012.doc Code of 1966"), land admeasuring 2 acres 11 gunthas was declared to be that of the Government of Maharashtra and 2 acres 2 gunthas of Mohamed Yusuf Khot and 8 1/2 gunthas is in dispute. This is the subject-matter of the allegations in paras 7 and 8 of the petition.
12. The claim of the petitioner is that, the said Jolly Brothers Pvt. Limited, Anil Hardboard Limited, Anil India and Jolly Anil India have no right, title and interest in respect of land bearing Old Survey Nos.56, 57, 58 and 59 and CTS Nos.1293 (1 to 5) and 1294 (3 to 7). The City Survey Department has, without ascertaining the rights of respondent No.19 to this petition, allowed transactions at the behest of interested parties. The transactions evidencing the transfer are questioned by the petitioner by pointing out that the documents in relation thereto are questionable and the Government has not investigated properly the issues in relation to these documents.
13. In para 9 of the petition it is stated that there was an order passed by the Revenue and Forest Department dated 15-11-1969. That refers to the land bearing Survey No.275. This order says that the Government has decided to lease land admeasuring about 80 acres out of Survey No.169 (New Survey No.275) of Village Kanjur to M/s. Jolly Brothers Pvt. Limited, subject to two conditions. Exhibit "H" is a copy of the Page 8 of 99 suresh 908-PIL-127.2012.doc order dated 15-11-1969. After that the petitioner alleges that there has been an order of 11-5-1970 by which, in exercise of the powers conferred by the Salsette Estates Act, the entire land admeasuring 1668 acres, 24 gunthas bearing Old Survey No.169 and New Survey No.275 and CTS No.657 lying being and situate at Village Kanjur, Taluka Kurla was declared as Government property. A copy of this order is annexed as Exhibit "I" to the petition. The petitioner says that once the land has been declared to be a Government land and even the physical possession was with the Government, ordinarily, steps would have been taken to safeguard and protect the superior title of the Government in these lands. However, the petitioner obtained certain information which reveals that M/s. Jolly Brothers Pvt. Limited had illegally and unlawfully sub-leased 14 acres of land out of the said property without obtaining the permission of the Government. The sub-lease is in favour of M/s. Anil Hardboard Limited, M/s. Particle Boards India Limited, M/s. Jolly Anil India and M/s. Bombay Burma Trading Corporation. There is an internal note in relation to this and to be found from the Government files. In these circumstances, a Show Cause Notice dated 13-5-1980 was issued by the Additional Collector to the Managing Director of M/s. Jolly Brothers Pvt. Limited alleging that there is violation of the Revenue Code of 1966 and the user of the land has been changed although it was reserved for industrial purpose. The Page 9 of 99 suresh 908-PIL-127.2012.doc party was called upon to show cause as to why the lease should not be cancelled and the possession of land admeasuring 80 acres should not be taken back.
14. The petitioner, therefore, alleges that there is no question of M/s. Jolly Brothers entering into any deed and when it was a recipient of such a notice. Therefore, all the transactions in relation to this land or property ought to have been nullified. An order to that effect was passed on 18-12-1989 (Exhibit "M") by which the Government sought to initiate proceedings for revoking the lease agreements. It is claimed that being aggrieved and dissatisfied by this order, M/s. Jolly Brothers Pvt. Limited approached the Government and the Hon'ble Minister of Revenue. He passed an order dated 20-5-1992 quashing and setting aside the order of the Additional Collector of Mumbai Suburbs.
15. After this order, the company claimed that it was entitled to all the benefits under the lease in respect of 80 acres of land. The petitioner, however, says that all these agreements and particularly those referred in para 18 of the petition, are not binding simply because they ignored the contents of the earlier binding orders and directions of the Competent Authorities exercising powers under the aforementioned statutes.
16. The petitioner relies upon an information provided to Page 10 of 99 suresh 908-PIL-127.2012.doc it under the Right to Information Act, 2005. It then came across a Power of Attorney dated 2-12-2005. Pursuant to that Power of Attorney, there is a right created in favour of M/s. Lodha Builders and Developers. On the strength of the Power of Attorney, there is stated to be a construction activity. A commercial complex and residential building have come up on the plot. The details are set out in Exhibits "P" and "Q" to the petition.
17. The petitioner says that it could not obtain any document based on which the said Lodha Builders are claiming rights in the property. It is said that Lodha Developers have undertaken work in respect of land admeasuring 11,127 sq.mtrs..
18. In para 22, therefore, it is said that when the Government of Maharashtra has been held to be entitled to 80 acres of land, then, all transactions which took place during the course of the inquiry and before the declaration in favour of the State Government could not have survived nor can they be said to be legal and valid and based on that no further rights in the property could have been created by the beneficiaries of the various deeds referred above. In any event, the land was allotted for industrial purpose and there is a change of user. Now, the developers are constructing a commercial and Page 11 of 99 suresh 908-PIL-127.2012.doc residential complex. The development agreement has also been referred to in para 23. It is, therefore, alleged that all the construction activities at site are contrary to law. Paragraphs 24, 25 and 26 of this petition read thus:-
"24. The Petitioner states that the said land was to be used for Industrial purposes, but Lodha Builders managed to procure on the basis of purported Power of Attorney and illegally and unauthorized change of user for constructing residential complexes from the Commissioner of MMC through an undertaking of the terms and conditions Letter No.CE/146/BPES/LOS dated 22/1/2008 bearing Receipt No.4976, Document No.545/2008. The proposal file No.CE/1086/BPES/AS for the above development work contains the following plan:
(a) residential Building, F Wing, Stilt + 1 Podium + 2 Podium and Ground Part + 1 to 20 upper floors.
(b) residential Building G Wing, Stilt + 1 Podium + 2 Podium and Ground Part + 1 to 20 upper floors.
(c) Commercial & residential Building + Wings H, I, J, K. The Petitioner states that the said M/s. Lodha Developers have already constructed two towers consisting of 14 storeys each, named as I-Think Part, a commercial complex, and residential building of two wings 'F' and 'G' consisting of 20 storeys each, and is illegally disposing off the flats in the open market on ownership basis, which is ranging approx. between Rs.1.00 to 1.5 crores per flat.
25. The Petitioner states that upon perusing the photographs in the site of Internet Google Earth Map Land situated at land bearing Survey No.275, CTS No.657 which is meant for District Centre + flower market, it has been observed that hundreds of trees existing on land bearing CTS No.657 / Survey No.275 at Village Kanjur is being filled with soil by M/s. Jolly Brothers, Lodha Developers, Anil Hardboard, Jolly Anil India Ltd., M/s. Particle Board India Ltd., and through this illegally occupied the land. Simultaneously by cutting trees especially Mangroves, the said builder: M/s. Lodha Developers having address at Lodha Pavilion, Apollo Milk Compound, N.M. Joshi Marg, Mahalaxmi, Mumbai - 400 011 has erected huge cement concrete plant and the Page 12 of 99 suresh 908-PIL-127.2012.doc construction of a multi storied building is in full swing. The Petitioner has lodged N.C. Complaint with the Kanjur Marg (East), Police Station, against the said building for illegally and unauthorizedly cutting trees with the help of outsiders. The Petitioner has also taken photographs, however, the said companies are highly influential and due to the builder lobby and high influence, so far no action is taken against the said builders by any Government authorities, and hence, to protect the trees there is no other legal recourse except to approach your honours. The said plot of is covered under Plot Nos.1, 2 and 3 in the sketch plan annexed hereto being Exhibit 'C1', delineated in yellow, brown and light green coloured wash.
26. The said builders and developers are illegally and unlawfully have encroached upon the land reserved for Qabrastan, Hindu and Christian Cemetery. The Petitioner states that adjacent to the Eastern Express Highway and Vikhroli-Jogeshwari Link Road in the eastern side of the proposed D.P. Land for Navi Mumbai Link Road, the work of filling the soil is going on. Attached to the said area, there is reserved land for Qabrastan and cemeteries. The Petitioner states that builders have recently covered the land with sheets and fencing for the said purpose. Similarly, at Tagore Nagar, Group No.7, there is a Hindu cemetery and in the northern side after the nala, the land is reserved for Muslim Qabrastan which plot of land is also covered with Tin shed and fencing. The Petitioner states that the builders: Kukreja Builders, (Ravi Estate) having address at Laalasis Plot No.219, 11th Rd, Chembur, Mumbai - 400071 Registered office:- 613, Maker Chember - 5, 221, Nariman Point, Mumbai - 400021, and allegedly claiming themselves to be owners of land, thereby usurping the land reserved for the last resting place of humans. Prima facie, it appears that the Government Authorities have joined hands over the said land for cemeteries, under part of Plot Nos.7 and 8 in the sketch plan annexed hereto being Exhibit 'C1' with the builders and developers, and have allowed the said Builders and Developers to occupy the said properties, by illegally and unlawfully allowed change of user, which property is specifically reserved for specific purpose i.e. flower market. However, the builders i.e. Ajmera and Kukreja, intend to construct commercial and residential premises and have put up the Patra shed and fencing on the said property. While the builders have no legal rights on the said property, however, in collusion and connivance with Government by ignoring the demands of the public and except the Hon'ble Court, the common man has no remedy. The Muslim community of Kanjur Marg (East), Vikhroli and Bhandup (East), are facing severe problems of burial. The Petitioners have reliably Page 13 of 99 suresh 908-PIL-127.2012.doc learnt that Ajmera Builders (Respondent No.28) are claiming rights on the basis of some purported document."
19. In para 27, the petitioner summarises the allegations in relation to M/s. Kukreja Builders. They are said to have colluded with the Municipal Authorities and levelled the land and have occupied a portion stated to be plot No.8. Then the petitioner, in paragraph 28, prays for stopping all illegal construction on the Government land. The petitioner points out as to how the reservation of the land for District Centre is systematically defeated by the construction activity. Then there is a reference made to the construction activity which has been carried out on portions of the land which have been reserved as also having mangroves thereon. That is a reference made in para 30 of the petition. Thereafter, the petitioner says there are complaints made but they have not been attended to. Thus, the deals and transactions which the companies and builders have been successful in arriving at, are bogus. There is no title conferred in them in respect of the Government land. The petitioner cannot be expected to take note of every information and get itself impleaded. On the other hand, It is inviting the attention of the Government to the impact and legal consequences of the litigation which is pending and that is said to be a writ petition being Writ Petition No.5792 of 1996 and the interim order therein. Reference in the further paragraphs is in Page 14 of 99 suresh 908-PIL-127.2012.doc relation to this pending litigation. Thereafter the petitioner says that the deals by M/s. Jolly Brothers Pvt. Limited with M/s. Lodha Developers have resulted in violation of the provisions of law and the terms and conditions based on which the purported rights are claimed by the private parties, namely, the predecessors-in-title of M/s. Lodha Developers. It is stated that M/s. Jolly Brothers sold Government land admeasuring 39,690.85 sq.mtrs. to Lodha Developers for constructing residential buildings. A proposal for making 6 to 20 storey buildings was approved by the Mumbai Municipal Corporation in the year 2010. Thus the Government owned land is currently being used and sold as privately owned and residential complex comprises of buildings which are constructed or are under construction. For all these reasons, there is a reference made to an order dated 28-6-2010. That order is stated to have been passed by the Government. The original order is in Marathi and copy of which is annexed as Exhibit "V" and its English translation is at Exhibit "V1". Now the Mumbai Municipal Corporation has no land available to implement the reservations which are made in public interest and for public good. Thereafter there is reference made to certain entities who have carried out construction on other lands and paras 40 to 42 refer to the same. The petitioner then says that the Hon'ble Supreme Court has time and again held that when there is a Government land, that land cannot be dealt with save and Page 15 of 99 suresh 908-PIL-127.2012.doc except in public interest and for public good. If there is designation of a land for certain public purposes, all the more, the deals in relation to such land are unsustainable in law.
20. The further paragraphs of the petition, therefore, elaborate as to how the petitioner has brought to the notice of all concerned these doubtful, suspicious and allegedly bogus deals. The petitioner has also annexed a copy of the legal notice issued by it to the private parties and the Government and the reply that it received in relation thereto. For all these reasons, the petitioner prays, in paras 59, 60 and 61, as under:-
"59. The Petitioner submits that this Hon'ble Court may be pleased to issue appropriate directions by passing appropriate order directing the Respondent Nos.1 to 18 to call for the records and proceedings in respect of the said disputed property bearing Old Survey Nos.73, 74, 169, new Survey Nos.57, 58, 59, 275, CTS Nos.1293, 1294, 657 (all parts) Mauja Kanjur, Taluka Kurla, land admeasuring 208 acres and 30 gunthas approx., covered under Plot Nos.1 to 8 shown in the sketch plan annexed hereto being Exhibit 'C1' a portion of which is reserved for public utility like District Centre, Flower market, Public Housing, Municipal Hospital, Fire Brigade, Shopping Centre, Municipal School, Playground, Recreation Ground, Commercial Public usage, by the Government of Maharashtra, and after verifying the records pass appropriate orders in the interest of public at large where various government rules, regulations, Development Control Rules, with regard to the construction, reservations etc. which are violated by Respondent builders being Respondent Nos.19 to 29, and restore the said disputed property to it's original position and the purpose.
60. The Petitioner submits that this Hon'ble Court may be pleased to call for the papers and proceedings of the Order No.LND/2695/1060/PNO6277/J-3 dated 28.06.2010, passed by the Under Secretary, Revenue and Forest, and set aside the said illegal, vexatious and Page 16 of 99 suresh 908-PIL-127.2012.doc fraudulent order, in respect of Plot Nos.3 to 7, shown in the sketch plan, delineated in light green, purple, brown annexed hereto being Exhibit 'C1', approx. admeasuring 80 acres on part of the said disputed property.
61. The Petitioner submits that this Hon'ble Court may be pleased to pass appropriate Order directing the Respondent Nos.1 to 18, their servants, agents, or persons claiming through them to take immediate steps for demolishing the unauthorized construction put by Respondent Nos.19 to 33 on the portion of the said disputed property bearing Old Survey Nos.73, 74, 169, new Survey Nos.57, 58, 59, 275, CTS Nos.1293, 1294, 657 (all parts) Mauja Kanjur, Taluka Kurla, land admeasuring 208 acres and 30 gunthas approx., covered under Plot Nos.1, 2, 3 (admeasuring about 18 acres 6 gunthas approx.) and Plot No.8 (admeasuring about 120 acres approx.), delineated in yellow, brown, light green and red coloured wash, in the sketch plan annexed hereto being Exhibit 'C1'."
21. The prayers in the petition are, therefore, based on these substantive paragraphs. The petition has been amended to point out that the petitioner has not projected any private interest or interest which is personal in nature.
22. After this PIL was filed in this Court and after it was circulated, several orders have been passed directing the authorities to file their replies since a request was made in that behalf. We will now proceed to refer to the contents of the reply affidavits.
23. We have noted that the index prepared by the Registry in relation to this petition denotes that replies have not been filed by the State initially but there is a reference to a reply affidavit of 28-6-2013. That is stated to be filed by respondent Page 17 of 99 suresh 908-PIL-127.2012.doc Nos.13 and 14 to this petition. The respondent Nos.13 and 14 are the Deputy Salt Commissioner and the Commissioner of Salt. These are Central Government Officials. We do not wish to refer to their reply. Volume III of the paper-book consists of the affidavits and it would be interesting to refer to an affidavit in reply dated 30-4-2012 of respondent No.23. That affidavit is of Niroman H. Golwalla, Manager-Legal of respondent No.23. The affidavit proceeds to state that there is a mis-joinder of parties. There is a reference to a Scheme of Amalgamation executed between respondent No.21, being the transferor and respondent No.23, being the transferee and the shareholders of these respondents respectively, merging respondent No.21 with respondent No.23. We are not referring to the scheme or the orders passed by this Court in relation thereto for the simple reason that we are not considering the objections of the private parties to this PIL. The affidavit in reply highlights the aspect of delay. It says that transactions as old as of 1950 and 1960 are being reopened by this PIL. Thus, the motive of this PIL petitioner is challenged as also its locus.
24. However, what is material for us is that respondent No.23 says in the affidavit that land bearing Private Survey No.169 (Part), corresponding to New CTS No.275 (Part), and admeasuring approximately 80 acres is a larger property and vesting in Mohamed Yusuf Khot. Then it says that the Page 18 of 99 suresh 908-PIL-127.2012.doc Government enacted the Salsette Estates Act by virtue of which, all the waste lands were to vest in the State of Maharashtra in accordance therewith. After this Law was enacted, in 1953 Mohamed Yusuf Khot filed a Suit bearing No.481 of 1953 claiming a declaration that the Act of 1951 was not applicable to the larger property. Concededly, this affidavit says that during the pendency of the suit, Mohamed Yusuf Khot executed an agreement to lease dated 5-3-1957 in favour of respondent No.19. Then it is stated that the validity of the Salsette Estates Act was upheld and proceedings, to determine whether the larger property vested in the Government, were resumed by the Tahsildar. An order was passed on 26-5-1960, and a further order on 5-3-1962 under which the larger property was declared as Government land and a mutation entry was made being Mutation Entry No.95, dated 14-3-1962, noting the vesting of the land in the Government.
25. On 11-5-1970, the 2nd respondent to the petition issued a resolution sanctioning the grant of lease of the larger property to respondent No.19 for a period of 99 years. On 1-8-1963, respondent No.19 sub-leased a part of the larger property admeasuring 16,257 sq.mtrs. to respondent No.21. The respondent No.19 also granted sub-leases of certain other parcels of land/properties forming part of the larger property to one Anil Hardboard India Limited, that is, respondent No.25 and Page 19 of 99 suresh 908-PIL-127.2012.doc Bombay Burma Trading Corporation Limited, the respondent No.22.
26. On 13-5-1980, the Additional Collector, Bombay Suburban District issued a show cause notice and called upon respondent No.19 to explain as to why the order passed on 11/13-5-1970 should not be cancelled and possession of the larger property resumed by the State. The show cause notice also alleged that respondent No.19 created sub-leases with respect to a portion of the larger property in favour of respondent Nos.21, 22 and 25. They are contrary to the express terms of the lease. Therefore, an attempt was made to seek regularisation of the sub-leases, and the Government Resolution dated 17-2-1984 says that the Government grants lease of an area of 66 acres of the land forming part of the larger property in favour of respondent No.19 and 14 acres of the land forming part of the larger property which was sub- leased by respondent No.19 to various sub-lessees, separate lease agreements would be executed for a period of 30 years from the date of execution of a lease. That is how there is a reference made to Mutation Entry No.786, dated 31-3-1986. Then there is a Government Resolution dated 13-5-1985 issued by the 2nd respondent regularising the payment of arrears under the agreement of lease, which arrears are due from respondent No.19. There is a direction that separate lease deeds be Page 20 of 99 suresh 908-PIL-127.2012.doc executed with the respective sub-lessees of respondent No.19 for the area aggregating 14 acres for the prospective period of 30 years. However, all this was preceding the order passed by the Additional Collector, Bombay Suburban District on 18-12-1989 directing respondent No.19 to hand over vacant and peaceful possession of the larger property to the Tahsildar. The respondent No.19 thereafter filed an Appeal before the Minister of Revenue, Government of Maharashtra who passed order dated 20-5-1992, setting aside the order of the Additional Collector dated 18-12-1989. Therefore, respondent No.1, as the lessor, executed an agreement dated 18-11-1999 with respondent No.21 as the lessee and that lease agreement is stated to cover land admeasuring 16,257.52 sq.mtrs. of the Mumbai Suburban District and bounded, as enumerated in the lease deed. The relevant clauses of this agreement have been reproduced in this affidavit at running pages 311-313, based on which it is urged that the Government has executed this agreement leasing the property to respondent No.21 and respondent No.21 is entitled to peaceful possession of the same. That is how the Company Petition and the scheme was filed by respondent No.23 and that scheme has been approved by this Court.
27. For all these reasons, it is submitted that this PIL should not be entertained. Now, that everything is regularised Page 21 of 99 suresh 908-PIL-127.2012.doc and perfected, all the more this PIL, at the instance of the petitioner before us, should not be entertained as it erroneously presumes usurpation of the Government land. We have extensively referred to this affidavit of 30-4-2012 simply because all affidavits filed by the private parties, more or less, reiterate the contents of this affidavit. The affidavit in reply of Lodha Developers Limited to oppose the admission and grant of any interim relief in this petition is at page 355 of the paper- book. The affidavit seeks to clarify that the PIL is wrongly filed against Lodha Developers. The name of the company is Lodha Developers Limited and it was formerly known as Lodha Developers Pvt. Ltd.. The affidavit further says that it is necessary to make distinction between Jolly Board Limited (respondent No.26) and Jolly Brothers Private Limited (respondent No.19). Jolly Board Limited is only holding a lease on a small portion of the larger property, that is approximately 9 acres 32 gunthas of CTS No.657-A, whereas Jolly Brothers Private Limited is holding a separate lease over approximately 66 acres of the larger property. The development being carried out by Lodha Developers Limited and Jolly Board Limited is restricted to the part of the larger property, which is leased to Jolly Board Limited and has no relation whatsoever with the property leased to Jolly Brothers Pvt. Limited. In these circumstances, it is claimed that the joint development agreement, as reflected above, cannot be the subject-matter of Page 22 of 99 suresh 908-PIL-127.2012.doc the present PIL. The PIL petitioner confuses the lands and the parties to the deeds and transactions deliberately so as to approach this Court with a grievance which has no substance.
28. How the present petition is not a PIL nor can be treated as such is then pointed out by reference to Exhibits "A" to "A10". The present petitioner says that these are Government lands but the description of the same is not accurate, according to the deponent of this affidavit. The petitioner has intentionally suppressed and/or neglected to annex any Revenue or Government record in respect of property "B" and property "C". The Government records would clearly indicate that none of the lands belong to the Government and such lands are private properties and lawfully in use, occupation and possession of and are being developed after obtaining relevant permissions from the statutory authorities. The petitioner has projected the case of one Pramod Devsharan Shukla, who has verified the petition but it is incorrect to state that the construction activities, though known from 2006, have surprisingly been never objected to until this PIL was filed or an attempt made to file it. Thus, the PIL is a pressure tactic. Now, the events which are set out in this affidavit are identical to those which have been set out in the affidavit of respondent No.23, dated 30-4-2012. Thus the deponent of the affidavit, filed on behalf of Lodha Developers Page 23 of 99 suresh 908-PIL-127.2012.doc Limited, has raised identical contentions based on this affidavit. The said affidavit therefore need not be referred to in further details, save and except it proceeds to annex copies of the relevant documents, including the order of 4-7-2011. That is at page 456 of the paper-book. We will refer to this order a little later. In relation to this document, Lodha Developers Limited state in this affidavit and while asserting the correct factual position that pursuant to the Government Resolution dated 28-6-2010, the Collector, Mumbai Suburban District, in order to calculate the fees/premium payable for the development/change of user/uses of TDR as per the prevalent resolutions, made the further orders. The further orders are dated 14-6-2011 and 4-7-2011. The Jolly Board Limited is entitled to develop the property in accordance with the Government Resolution dated 28-6-2010 and Regulation Nos.54 and 57 of the Development Control Regulation for Greater Bombay, 1991 ("DCR of 1991") on the terms and conditions as contained in the order dated 13-7-2011, copy of which is Exhibit "II" (page 476) to this affidavit.
29. Thus, these three documents are referred in the affidavit of Lodha Developers Limited and based on that it is claimed that Lodha Developers have paid Rs.8,77,03,762.12 to respondent Nos.26 and 27. The respondent Nos.26 and 27 thereafter applied for several permissions and based on that it Page 24 of 99 suresh 908-PIL-127.2012.doc is claimed that the joint development has resulted in construction of residential buildings. The construction is of a building known as Lodha Aurum, which is nearly complete and Lodha Aurum Grande, which is at an advanced stage of construction. Then the joint developers are developing an IT building/commercial building by name "iThink"/Lodha Supremus on the said property. The Government Resolution of 4-12-2008 is mentioned to state that in this building the Government/Corporation will get a space of almost 1,25,000 sq.ft. free of cost. The construction activities on the property are commenced in phased manner and third party rights have been created. The Lodha Developers Limited have incurred cost of Rs.150 crores approximately towards the construction. It is, therefore, claimed that the units in the buildings developed/being developed have not only been sold/agreed to be sold, the buyers thereof have also raised finances against the same and have been put in possession of the same. It is thereafter that the petition is dealt with para-wise.
30. Then we have an affidavit of one Mahesh Bhavsar, Company Secretary of respondent No.26. That is an affidavit in which the issue raised is of non-compliance with the PIL rules by the present petitioner. This affidavit also refers to the same factual position which has been brought on record in the affidavit of Lodha Developers Limited and the respondent Page 25 of 99 suresh 908-PIL-127.2012.doc No.23. We have thereafter an affidavit which is filed by respondent No.20, Niranjan Hiranandani. That is on behalf of Jolly Anil India Limited. That affidavit then raises, more or less, same contentions on the point of maintainability, delay and laches and says, as far as the factual position, that respondent Nos.19 to 26 are alleged to have occupied Government lands and carrying on construction activities. It is stated that the City Survey Records show that M/s. Jolly Anil is in possession as a sub-lessee/lessee since 16-8-1967 in respect of the land of M/s. Jolly Anil admeasuring 15,461.2 sq.mtrs. bearing CTS No.657-C. There is no physical structure constructed by M/s. Jolly Anil. However, the affidavit alleges that the petition suppresses material facts and events. It is stated in the affidavit that the Government has sanctioned a lease of 80 acres to M/s. Jolly Brothers Pvt. Limited and Jolly Brothers are therefore entitled to all the benefits under this lease. The petitioner is accused to have suppressed further orders and subsequent to the order dated 28-6-2010. The further order of 4-7-2011 modifies the order of 28-6-2010 and restricts it to 6 acres of land leased to M/s. Jolly Brothers and 9 acres belonging to respondent No.26 (Jolly Board Limited). The affidavit then reiterates the very same facts but in relation to title of M/s. Jolly Anil to plot of land bearing City Survey No.657-C admeasuring 15,461.2 sq.mtrs., equivalent to 3 acres and 32 gunthas. We need not reproduce or refer to the same factual statements Page 26 of 99 suresh 908-PIL-127.2012.doc which are made in the affidavits of the other private parties. However, this affidavit says that there is no cause of action arising as far as M/s. Jolly Anil or respondent No.20. These two entities are concerned only with 3 acres and 32 gunthas, which land is claimed as a lessee. No development or construction activities are presently going on and there are no structures standing thereon as on today. After this affidavit we have on record the affidavit in reply of respondent No.19. That is an affidavit of Dev Prakash Awasthi, authorised signatory of respondent No.19-Company Jolly Brothers Pvt. Limited. We should clarify immediately that there are two entities known as Jolly Board Limited and Jolly Brothers Private Limited. It says that the petitioner is not a bona fide litigant at all. There are no details provided of the registered office of the petitioner. In fact the registered address is that of the residential accommodation of the President of the petitioner which is a chawl at Mumbai. It has a branch office at office No.14, Mercury Building, Sun City Complex, Near Gandhi Nagar Junction, Powai, Mumbai - 400 076. However, this office remains closed and is used to carry on business of real estate agency/consultancy. Then the allegation in the affidavit is that the petitioner has not properly reconciled old survey number with the new survey number and/ or CTS numbers and this could lead to a confusion. Apart from reiterating the preliminary objection on the point of delay, it is said in this affidavit that the petitioner has not placed on record Page 27 of 99 suresh 908-PIL-127.2012.doc the details of the lease agreement dated 21-6-1995, executed between the State of Maharashtra and M/s. Jolly Brothers Pvt. Limited. Under this agreement, the Government of Maharashtra demised unto M/s. Jolly Brothers Pvt. Limited all that piece and parcel of Government land bearing Old Survey No.169 and New Survey No.275 corresponding to CTS No.657-A (Part) situated at Kanjur, Taluka Kurla of Bombay Suburban District admeasuring about 2,38,375.8 sq.mtrs. or thereabout equivalent to 58 acres 36¼ gunthas together with all rights, easements and appurtenant thereto for a period of 99 years commencing from 8-5-1969. Thereafter again, by and under a lease agreement dated 9-6-2004, executed between the State of Maharashtra and M/s. Jolly Brothers Pvt. Limited, the Government of Maharashtra demised unto M/s. Jolly Brothers Pvt. Limited all that piece and parcel of Government land bearing Old Survey No.169 and New Survey No.275 corresponding to CTS No.657-A (Part) admeasuring 28,707.5 sq.mtrs. or thereabout equivalent to 7 acres 3 gunthas 12 annas together with all rights, etc., for a period of 99 years commencing from 8-5-1969 upon the terms and conditions particularly mentioned in these agreements. Thereafter the same factual averments as are made in the affidavits of other private parties are reiterated. The rest of the affidavit is thereafter dealing with the petition para-wise and denying whatever is inconsistent with the stand of the private entities.
Page 28 of 99suresh 908-PIL-127.2012.doc This affidavit in reply is filed on 24-7-2012 and thereafter there is an affidavit which has been filed on behalf of respondent Nos.13 and 14. That is the affidavit of the Salt Commissionerate. We shall not make any reference to it in details save and except what is necessary for our prima facie conclusion.
31. Then respondent No.30 has filed an affidavit and claims to be the co-owner of Old Survey No.169, New Survey No.275 corresponding CTS No.657. The co-ownership is stated to be traceable to Kowl (Permanent Lease) dated 7-7-1935 executed by the then Collector of Thane in favour of one Framjee Cawasji Banajee. The affidavit of respondent No.30 says that the 1951 Act, namely, the Salsette Estates Act, is the relevant Law. The then estate holder of the land Sir Mohamed Yusuf had purchased the said land by a deed of assignment dated 5-7-1938 executed by Central Bank of India, being the mortgagee and Mulji Haridas & others, being the mortgagors of the said land, and which deed is duly registered with the Sub- Registrar of Assurances at Bombay. Pursuant to the commencement of the Salsette Estates Act, this Mohamed Yusuf filed a Suit and we have already made reference to the Suit and the compromise terms therein. This respondent clearly says that during the course of the inquiry, he purchased the land from the estate holder. The Tahsildar passed an order Page 29 of 99 suresh 908-PIL-127.2012.doc holding that the land was not appropriated before the commencement of the Salsette Estates Act. The matter was carried in Appeal to the Collector but that Appeal was heard by the Commissioner, Bombay Division. The Commissioner's order being adverse, a Revision Application was preferred before the Minister of Revenue. Interestingly, this affidavit says that one Ramji Gopal Koli filed a Suit in this Court being Suit No.690 of 1972. That Suit was filed against the State of Maharashtra, claiming certain rights in respect of portion of this land and for a declaration that the orders passed by the Revenue authorities are null and void. The Minister of Revenue, by order dated 15-4-1974, had disposed of the Revision Application holding that no useful purpose will be served by deciding it since the Suit of Ramji Gopal Koli was pending. That orders passed by the Revenue authorities therefore would have to abide by the outcome of the Suit, is the conclusion of the Minister. The deponent of this affidavit says that there was an order made on 15-4-1974 by the Minister of Revenue and therefore Miscellaneous Petition No.623 of 1974 was filed by him in this Court aggrieved by the same. This Court directed fresh hearing to be given to the petitioners in that miscellaneous petition. However, after the fresh hearing also the Minister passed the same order as was made earlier by him. The subsequent order is of 3-2-1975. The deponent of this affidavit then says that in or about 1983 the Suit of Ramji Gopal Koli came to be dismissed.
Page 30 of 99suresh 908-PIL-127.2012.doc Thereafter, an application was made to the Minister of Revenue to take up the matter and decide it in accordance with law. Since the Minister was not responding, Writ Petition No.19 of 1987 was filed in this Court. There was an order passed on 7-1-1987 which is an interim order in this petition. That interim order purported to restrain the Government and its officers from implementing the prior orders of the Revenue authorities, including that of the Minister. Since the State Government was aggrieved by this interim order, it preferred Appeal No.294 of 1987 before the Division Bench but that came to be dismissed. The Writ Petition No.19 of 1987 was disposed of by Minutes of Order dated 22-6-1995 and this Court set aside all orders of the Revenue authorities. It continued the interim order dated 7-1-1987 passed in the Writ Petition and directed that the petitioner's Revision Application be decided afresh. Pursuant to the order and direction of this Court, the Revenue Authority decided the Revision Application and passed an order on 30-9-1996. Since that order did not decide the issue on merits, Writ Petition No.5792 of 1996 was filed aggrieved by the same. That has been admitted and an interim order made thereon on 14-1-1997. Thus the deponent justifies the filing of the Writ Petition by respondent No.30. He further says that on 4-12-2012 he came across a press release in the Times of India wherein it was stated that the Collector, Mumbai Suburban District has cancelled a lease granted on 21-6-1996 in favour of Page 31 of 99 suresh 908-PIL-127.2012.doc respondent No.19 due to certain illegalities and/or change of user of land and/or non-observance/compliance of the terms and conditions of lease by respondent No.19. Thereupon he entered into correspondence. However, what this affidavit maintains is that the issue is pending before this Court. Until all this, we did not have any affidavit of the State Government. Surprisingly, an affidavit has been filed on behalf of the Municipal Corporation of Greater Mumbai. This affidavit is affirmed by an Assistant Engineer and he says that the Municipal Corporation received a letter from the Deputy Collector (Removal of Encroachment) in respect of providing machinery/manpower for taking demolition action against Sai Corporation located at Jogeshwari-Vikhroli Link Road, Near Gandhi Nagar Bridge, Karve Nagar, Kanjur Marg (East), Mumbai - 400 042. It is stated to be a garage. Now, he says that machinery and manpower were provided but the Deputy Collector granted time to Sai Corporation to remove/shift buses, cars, etc. and other parts and accessories and demolish the encroachment by 9-5-2011. If that was not done, then the Deputy Collector would take the necessary action. However, a complaint was received on 16-8-2012 and that complaint, according to the Municipal Corporation, mentions the very garage but when it was found that the garage is on the Collector/Government land, it took no steps to redress the grievance of the complainant thereafter.
Page 32 of 99suresh 908-PIL-127.2012.doc
32. The petitioner filed an affidavit in rejoinder to the affidavits in reply of respondent Nos.13 and 14, respondent No.19, respondent No.20, respondent Nos.21 and 23 and respondent Nos.26 and 27 and we shall make a reference to this rejoinder affidavit a little later.
33. Since our order directed filing of an affidavit by the Government, the affidavit in reply of the State Government and particularly the Collectorate is extremely relevant. That is relevant because it outlines the stand of the Government and the Collector. This affidavit contains the following relevant paragraphs:-
"3. Without prejudice to whatever is stated hereinabove, I respectfully say that, the Petitioners have not only misconstrued the true and correct facts with regard to, the questioned lands but also has mixed up the legal issues, as regards "the STATUS" of Lands in question. The correct land survey numbers and their corresponding C.T.S. numbers are as under:
Old New New
Survey Survey CTS No.
No. No.
169, 73 275, 657
pt. 59/2,
59/1 pt.
73 pt. 74 58 pt. 1293
pt.
73 pt. 59/1 pt.
72 pt. 73 57/4
pt.
71 55/1 pt.
65 pt. 32/5 pt.
Page 33 of 99
suresh 908-PIL-127.2012.doc
72 pt. 56/1 to 5 1294
73 pt., 58 pt.
74 pt.
All situated at village Kanjur, Taluka-Kurla, Mumbai Suburban District.
4. The chronology of the events pertaining to the above properties, situated at Village Kanjur, Taluka Kurla, MSD has already been placed before this Hon'ble Court by respective Respondents in their Affidavits. I confirm and adopt the same as the part and parcel of the present Affidavit in Reply, to avoid the repetition of the same.
5. It is respectfully submitted that, 'an Act' known as The Salsette Estates (Land Revenue Exemption Abolition Act, 1951), hereinafter referred to as the said Act of 1951, came to be enacted, and which came into force with effect from 14th January 1952, with the objects of "abolishing the exemption granted from payment of Land Revenue, to certain land holders in 'the Island of Salsette' in the Bombay Suburban as well as Thana Districts". By virtue of section 4 of the said Act of 1951, certain lands were "declared" to be the property of State Government. It was lawful for the State, "to sell and dispose of" the such Lands, by the authority vested in the Government by virtue of Land Revenue Code. The Lands which were held by "the Estate holders" and which had not been appropriated or brought under cultivation, before 14 August 1951, came to be declared as the property of State. I crave leave to refer to and rely upon the provisions of the said Act 1951, as and when necessary.
6. The immovable property bearing 'old Survey No. 169', i.e. New Survey No.275 corresponding to CTS no. 657 situated at village Kanjur, Mumbai Suburban District, came under the purview of provisions of said Act of 1951 and an enquiry as contemplated under the said Act of 1951 came to be initiated with regard to the lands held by the Estate Holders, i.e. Mohd. Yusuf Khot. The Estate Holder of the Lands, filed a Suit, in this Hon'ble Court, being suit No.481 of 1953, for various reliefs. On 11/10/1957 "Consent Terms" came to be arrived at between the parties to the Suit, particularly with regard to "the Lease Transactions" in respect of the immovable properties held by Estate Holders. The respective Lessees agreed to abide by any demands that might be raised, on behalf of the State Government, and to pay the same to the Government, in the event the lands were held and Page 34 of 99 suresh 908-PIL-127.2012.doc came to be declared as "vested" in the State Government. An enquiry, contemplated under section 37 of the Land Revenue Code commenced to determine the Vesting of the Lands. Vide Orders dated 22.01.1959 and 26.05.1960, the Land bearing old Survey No.169, (i.e. new Survey No.275 corresponding to CTS No. 657) came to be held as "waste land" and hence "vested" in the State Government in accordance with provisions of said Act of 1951. The relevant entries were made in the Revenue Records in respect of the said Land as belonging to the State Government. I crave leave to refer to and rely upon the records, proceedings and the Orders passed in this behalf as may be necessary.
7. M/s. Jolly Brothers, who claimed to be in possession of the portion of Lands made a request to the State Government, to grant "on lease basis", the land in their possession, out of the Survey No.275, admeasuring about 80 acres, for a term of 99 years. The request of M/s. Jolly Brothers, to grant the lease of the land on certain terms and conditions came to be allowed Vide Order dated 11.05.1970. I crave leave to refer to and rely upon the Government Resolution dated 11.05.1970, issued by the Revenue and Forests Department, Government of Maharashtra together with the terms and conditions of the grant of the lease to M/s. Jolly Brothers.
8. It further appears from the records that, said M/s. Jolly Brothers had already created sub-lease of the portion of the plot of land which was in their possession, and which later on was granted by way of lease to M/s. Jolly Brothers Pvt. Ltd. Upon the necessary enquiries, by the Government, it was noticed that M/s. Jolly Brothers had already "sub-leased" about 14 Acres of land out of the said 80 Acres, to their 4 sister concerns. In this connection, the Government of Maharashtra vide Memorandum dated 17.02.1984, had accorded "No objection" to execute the lease deeds in respect of the 66 Acres of land in actual possession of M/s. Jolly Brothers Pvt. Ltd. and it was also decided that in respect of the remaining 14 Acres of land, out of S.No.275 of Kanjur, which had been sub-leased by M/s. Jolly Brothers Pvt. Ltd. to their 4 sister concerns, during the period from 1963 to 1969, necessary Orders/approvals would be issued separately. Subsequently vide Order dated 13.05.1985, the Government of Maharashtra, in its Revenue and Forest Department, Resolved "to regularize" the sub-leases granted by M/s. Jolly Brothers to its subsidiary companies, upon certain terms and conditions. I crave leave to refer to and rely upon the relevant Government Page 35 of 99 suresh 908-PIL-127.2012.doc Memorandums and orders issued in this behalf as may be necessary.
9. It further appears that, Land bearing Survey No. 275 had been "Reserved" towards establishment of District Commercial Centre, in the Development Plan for Greater Mumbai, as per the DC regulations of 1991. The questioned plot of land, is also affected by the then existing CRZ restrictions, due to which further development over the plot of Land could not proceed with. As such M/s. Jolly Brothers Pvt Ltd, the lessee represented to the State Government to permit "change of user" of the said plot of land so as to effect "development" over the said plot of land, in accordance with the Development Plan and existing DC Regulations for Greater Mumbai. The State Government considered the said request and decided to give permission to M/s. Jolly Brothers Pvt. Ltd., for "the change of user" of the said plot of land, on certain terms and conditions vide Government Memorandum dated 28.06.2010 issued by the Revenue and Forests Department, Government of Maharashtra. I crave leave to refer to and rely upon the said Government Memorandum 28.06.2010 as and when necessary.
In this regard, it is respectfully submitted that after securing the said permission, it was for the Planning Authority i.e. the Municipal Corporation of Greater Mumbai to process and approve the plans submitted for development over the said plot of land, in accordance with the Development Plan and the then existing DC regulations for Greater Mumbai 1991. Any further submissions and contentions of the Petitioners as regards sanction of the plan for construction in accordance with DC regulations and Development Plan are required to be addressed and responded by the concerned Planning Authority i.e. Municipal Corporation of Greater Mumbai.
10. It appears that, since M/s. Jolly Brothers Pvt Ltd. by themselves were not in position, to carry out the development of the plot of land, out of their own resources, as such the State Government while permitting "the change of user", had permitted M/s. Jolly Brothers Pvt Ltd. "to raise financial assistance"
from the financial institutions. The Lessees were also permitted "to utilize the TDR" over the said plot of land, and as per their request, the State Government permitted "the availing of services of Developers", to carry out the Development in accordance with DC regulations for Greater Mumbai. I crave leave to refer to and rely upon the said Government Memorandum dated 28.06.2010."
Page 36 of 99suresh 908-PIL-127.2012.doc Concededly, the deponent does not feel anything while stating that chronology of events pertaining to the property at Village Kanjur, Taluka Kurla, MSD has already been placed before this Hon'ble Court by the respective respondents. The deponent confirms and adopts the same as part and parcel of his affidavit in reply to oppose the petition. It is, therefore, not a co- incidence that every single factual averment from the affidavit of private parties find place in this affidavit of the State Government. The deponent also says that similar permissions as were issued vide Government Resolution dated 28-6-2010, have been issued in favour of M/s. Jolly Board Limited, one of the sub-lessees of M/s. Jolly Brothers Pvt. Limited. In accordance with the permission issued by the State Government, M/s. Jolly Brothers Pvt. Limited as well as their sister concern M/s. Jolly Board Limited have carried out the development over the respective plots of land in accordance with the Development Plan as well as the DCR of 1991. Thereafter, in para 12, there is reference made to the transactions and deals between Mohamed Yusuf Khot and M/s. Jolly Board Limited, which was previously known as M/s. Anil Hardboard Limited. In para 13, there is reference made to encroachments and illegal constructions on a plot of land bearing CTS No.657 (Part) and the report of the Deputy Collector (Encroachment/Removal) dated 7-11-2019. There Page 37 of 99 suresh 908-PIL-127.2012.doc was a joint inspection carried out way back in 2011 and it says that this portion of land bearing Survey No.275 corresponding to CTS No.657-A (Part) (which belongs to the State Government) had been illegally occupied and encroached upon by one M/s. Ravi Estates, without the permission of the State Government. That is why show cause notice was issued. At the time of hearing of the show cause notice, an order dated 14-1-1997, passed in Writ Petition No.5792 of 1996, came to be relied upon and it was urged that there is an order of status quo in this petition. In the circumstances, the order prevented the authorities from taking further steps and the show cause notice was not adjudicated.
34. Thereafter, a reference is made to Civil Application No.84 of 2016, filed by the Collector, MSD in Writ Petition No.5792 of 1996 and it is claimed that this application is pending.
35. In para 15, there is a reference made to a Civil Suit filed by M/s. Khetan Industries Pvt. Limited against the State Government in the Bombay City Civil Court, Bombay in respect of the immovable property - Survey No.275, claiming certain rights to the extent of 120 acres of land. That Suit is pending. In para 16, the deponent says that since various legal proceedings are already pending in respect of the immovable Page 38 of 99 suresh 908-PIL-127.2012.doc property involved in the present petition, it is highly unjust, unfair and improper on the part of the petitioner to make baseless allegations against the authorities as to non-initiation of further action in respect of the questioned immovable properties. The petitioner is accused of misconstruing judicial and quasi-judicial orders and Government Resolutions issued from time to time.
36. The rejoinder affidavit that has been filed by the petitioner would require some reference at this stage so as to appreciate some of the oral arguments canvassed before us. The rejoinder affidavit says that out of 1668 acres and 24 gunthas of land at Village Kanjur, 1400 acres of land given to Salt Commissionerate is not sub-divided. There is no proper demarcation of land and boundaries and no separate property card. That is why the writ petitioner impleaded respondent Nos.13 and 14.
37. As far as respondent No.19 is concerned, the rejoinder affidavit points out that as per the agreement dated 5-3-1957 and the Order of the Government dated 11-5-1970, it was decided to give 80 acres of land on lease to Jolly Brothers Pvt. Limited. From the records, it appears that between 5-3-1957 to 11-5-1970 M/s. Jolly Brothers Pvt. Limited gave 14 acres of land to four companies on the basis of sub-lease.
Page 39 of 99suresh 908-PIL-127.2012.doc However, as per the order of the Government of Maharashtra dated 11-5-1970, the lands which were given for industrial purpose on sub-lease to M/s. Anil Hardboard, M/s. Particle Boards India Limited, M/s. Jolly Anil India Limited and the Bombay Burma Trading Corporation can be separated and 66 acres out 80 acres was given to M/s. Jolly Brothers Pvt. Limited by a separate lease agreement and as per the instructions of the Law and Judiciary Department. Thus, there was direct lease and sub-lease in favour of M/s. Jolly Brothers Pvt. Limited. The affidavit in rejoinder then says that there is a chart annexed which would denote that excess area was acquired besides 14 acres of land and that excess area is 5 acres 27 gunthas and 10 annas. That has been taken by M/s. Jolly Brothers Pvt. Limited. It has therefore been the beneficiary of the allotment of these 66 acres and excess land of 3 gunthas 12 annas as well. The four leases in respect of four entities referred above resulted in excess area of 5 acres 27 gunthas and 10 annas, and as far as M/s. Jolly Brothers Pvt. Limited, it has taken the excess land to the above extent.
38. Then, Jolly brothers made agreement of lease with the Government of Maharashtra on 21-6-1995 for industrial use of 66 acres. However, the land has not been used for industrial purpose. The purpose has been industrial/residential.
Page 40 of 99suresh 908-PIL-127.2012.doc
39. As far as M/s. Jolly Anil India Limited, it is stated that it has been the beneficiary of a lease of land for industrial use under Lease Agreement dated 25-10-1999. That company was functioning till 16-8-1967 and Mr. Niranjan Hiranandani is on the Board of Directors of that company. That company has not used the Government land for any industrial purpose from 1967 till date. As far as respondent Nos.21 and 23 are concerned, it is pointed out that M/s. Particle Board India Limited was shown as functioning up to a certain time and thereafter it sold the land to M/s. Nitco Marble Company. The petitioner then deals with the affidavit in reply which has been filed on behalf of respondent Nos.26 and 27. With regard to that, after explaining the stand of the PIL petitioner, it is contended that the underlying controversy is not examined and that is that the Government continues to be the owner of this land. The parties cannot claim any right higher than that of the State. If that is how they have derived a limited right from the State and the lease contains specific terms and conditions which have allegedly been not complied with, then, all the more the matter requires a closer look. For instance, it is pointed out in para 27 that M/s. Jolly Board Limited has a huge plot of land in their possession. The same is used without in any manner informing the Government that the name of Anil Hardboard was changed as M/s. Jolly Board Limited. That has not been informed and whether any change in the status or in the name Page 41 of 99 suresh 908-PIL-127.2012.doc would enable the lessee to continue with the lease or would the same require approval of the Government to continue or for continuation it requires the approval of the Government, has not been clarified. Similarly, the development agreement has been executed but there was no preceding lease agreement with the State. The Government land is thus usurped, is the serious allegation.
40. As far as the stand of respondent Nos.30 to 32 in their affidavits in reply, it is contended that the order of this Court in Writ Petition No.5792 of 1996 if prevents the State from taking action and carrying ahead its show cause notice, then, that should have been the basis for not allowing others to deal with the lands. An order of status quo thus cannot be construed and interpreted conveniently. For all these reasons, it is urged that this Court take serious cognisance of the allegations in the PIL and issue appropriate orders and directions to the State.
41. On the above materials, we have heard Mr. P.M. Shah, appearing for the petitioner. He would submit that this PIL has raised serious issues pertaining to taking over and usurping Government land/public property. If the initial act of the Government is subject to certain terms and conditions and there is a violation of the same, then whether the breaches and violations can be regularised or not has to be determined by an Page 42 of 99 suresh 908-PIL-127.2012.doc independent person or body. Secondly, the Government has categorically stated that during the pendency of the inquiry under the Salsette Estates Act, some deals and transactions have been undertaken. If based on them there are further deals, then, post conclusion of that inquiry those deals cannot survive. In any event, the Additional Collector has, in the initial order, not accepted the stand of these respondents. When they approached the Revenue Minister, their request was allowed. Even thereafter, the petitioner has pointed out as to how the order passed in the month of May, 2010 is conditional. It has been misread and misinterpreted. The unilateral interpretation of this Government order creates all the confusion. In fact and in essence the Government has to explain as to how any regularisation is permissible by condoning illegal acts. The underlying illegalities vitiate the whole transaction. Thereafter, there is no continuation of the lease. For all these reasons he would submit that the PIL be allowed and appropriate orders and directions be issued. Our attention has also been invited to the list of dates and events and which has been handed in. He would submit that crucial dates and events have not been pointed out or they have been held back by all the private entities. For instance, Mr. Shah would submit that reliance is placed on the order of the Minister dated 20-5-1992 and the interim order of the single Judge of this Court passed in Writ Petition No.5792 of 1996. Thereafter, it is stated that a formal Page 43 of 99 suresh 908-PIL-127.2012.doc lease deed had been executed on 19-6-2006. It is then said that there is a Notification under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 ("the MRTP Act") modifying Table 4 of Regulation 9 by providing that land reserved for a District Commercial Centre/Town Centre could be developed in the manner set out in this Notification. However, the argument is that if there are intervening deals and transactions, then all of them can be said to be sham. Mr. Shah has also pointed out that the PIL is filed in 2012. Now, the industrial user has become commercial-cum-residential. Reliance is placed on Section 37(2) of the MRTP Act. If the instances highlighted in the PIL make out a prima facie case of collusion and connivance while granting permission to sub- lease and change of user, then, the PIL deserves to be entertained. There is no question of the PIL petitioner being either a busy body or espousing a private interest. This is not a blackmail or an extortion action but a genuine concern expressed by an organisation of public spirited citizens. For all these reasons, Mr. Shah would submit that appropriate orders and directions be issued.
42. We have the benefit of the arguments of only Mr. Chinoy, learned Senior Counsel and the other counsel who purport to adopt his stand but appearing for private parties. Unfortunately, Mr. Abhay Patki, appearing for the State, has Page 44 of 99 suresh 908-PIL-127.2012.doc been instructed not to go beyond the affidavit filed by the State in this PIL and that too after the order passed by this Court on 27-11-2019. Mr. Patki has been instructed to state that the inquiry as sought by the PIL petitioner cannot be initiated now and after all the deals and transactions have been finalised.
43. Mr. Chinoy, learned Senior Counsel, submits that this PIL is not a bona fide litigation. The PIL petitioner has not complied with the PIL Rules. The petitioner carries on business from a business premises and that business is of an Estate Agent. In other words, the petitioner's address is that of an Estate Broker's office. This itself will demonstrate as to how the PIL has been filed with ulterior motives and to knock out something from the reputed builders and developers.
44. Apart therefrom, on merits as well, this PIL creates only a fog. There is no challenge to the specific dealings and transactions. These dealings and transactions have been formalised by executing lease agreements and sub-lease agreements, none of which have been questioned. Despite the affidavit disclosing all the details of these deals, the petitioner has not bothered to insert appropriate pleas with regard to individual deals and thereafter seek relief to quash every one of them. The petitioner is thus conceding that the plots are no longer Government land or public property. They are private Page 45 of 99 suresh 908-PIL-127.2012.doc properties. They are not vesting in the Government. After general and vague allegations in the memo of the PIL, the petitioner feels that the user or alleged change in the same can also be introduced as a cause of action. That is also not specifically introduced. In the absence of proper pleadings and challenge based on grounds, it will be difficult for all the private respondents to point out to this Court as to how their right, title and interest in the properties are derived and that there is no basis for contending that the Government land/public property has been usurped and/or taken over illegally and unauthorisedly. There is thus no basis to assume that the lands involved are Government land/public property. There is no challenge to the registered agreements. In these circumstances, the PIL has no substance and deserves to be dismissed.
45. Mr. Chinoy has highlighted each of the events in the list of dates and events presented by him to urge that there is a modification made to the Development Control Regulations. The Development Control Regulations are part and parcel of the Development Plan. The modification thereto has to follow the route set out in the MRTP Act. That route has been taken and followed after which the modifications to the Development Plan have been made. By these modifications, the user could be either industrial or composite or commercial or residential. In Page 46 of 99 suresh 908-PIL-127.2012.doc any event, residential user is not prohibited. For all these reasons, Mr. Chinoy would submit that the PIL makes out no case for intervention. All the more, when substantial amounts have been paid. He also highlights the fact that if the petitioner was indeed pursuing the cause bona fide, then the petition would not have merely created a cloud but raised issues, pleas and substance. By a vague reference to the transactions but raising no challenge to them, no relief can be sought. The approval orders are clear and nothing has been done clandestinely and secretly. For all these reasons, he would submit that the PIL be dismissed.
46. We have, with the assistance of the counsel appearing for the petitioner, perused the PIL and the annexures thereto. We have also perused all the affidavits in reply and the rejoinder of the petitioner together with the annexures to the same.
47. We must and for the purposes of properly appreciating and understanding the controversy note the essential controversy. The essential controversy is that none of the parties before this Court and respondents to the PIL have claimed such absolute title in them as is projected during the course of the arguments. That the land has lost its character as a Government land or public property may be an oral argument Page 47 of 99 suresh 908-PIL-127.2012.doc but we must find out, for a prima facie purpose, whether there is any truth in this stand of the respondents.
48. Before that we must note the salutary principles laid down in the Judgments of the Hon'ble Supreme Court. These principles are succinctly summarised in the more recent Judgment of the Hon'ble Supreme Court reported in AIR 2011 SC 1834 (Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh & Others). The relevant paras read as under:-
"12. What is significant to be noted is that there is no provision in the Act or the Rules for disposal and/or transfer of land in respect of which a regional plan or development plan or zonal plan has been prepared. The only provision which has nexus with the Government land is contained in Rule 3 which, as mentioned above, imposes a bar against the transfer of Government land vested in or managed by the Authority except with the general or special sanction of the State Government.
13. .... ....
14. We shall now consider whether the State Government could allot 20 acres of land to respondent No.5 without issuing an advertisement or adopting a procedure consistent with the doctrine of equality so as to enable other similar organizations/institutions to participate in the process of allotment.
15. The concept of `State' has changed in recent years. In all democratic dispensations the State has assumed the role of a regulator and provider of different kinds of services and benefits to the people like jobs, contracts, licences, plots of land, mineral rights and social security benefits. In his work "The Modern State"
MacIver (1964 Paperback Edition) advocated that the State should be viewed mainly as a service corporation. He highlighted difference in perception about the theory of State in the following words:
Page 48 of 99suresh 908-PIL-127.2012.doc "To some people State is essentially a class-
structure, "an organization of one class dominating over the other classes"; others regard it as an organisation that transcends all classes and stands for the whole community. They regard it as a power-
system. Some view it entirely as a legal structure, either in the old Austinian sense which made it a relationship of governors and governed, or, in the language of modern jurisprudence, as a community "organised for action under legal rules". Some regard it as no more than a mutual insurance society, others as the very texture of all our life.
Some class the State as a great "corporation" and others consider it as indistinguishable from society itself."
16. When the Constitution was adopted, people of India resolved to constitute India into a Sovereign Democratic Republic. The words `Socialist' and `Secular' were added by the Constitution (Forty-second Amendment) Act, 1976 and also to secure to all its citizens Justice - social, economic and political, Liberty of thought, expression, belief, faith and worship; Equality of status and/or opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The expression `unity of the Nation' was also added by the Constitution (Forty-second Amendment) Act, 1976. The idea of welfare State is ingrained in the Preamble of the Constitution. Part III of the Constitution enumerates fundamental rights, many of which are akin to the basic rights of every human being. This part also contains various positive and negative mandates which are necessary for ensuring protection of the Fundamental Rights and making them real and meaningful. Part IV contains `Directive Principles of State Policy' which are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Article 39 specifies certain principles of policy which are required to be followed by the State. Clause
(b) thereof provides that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. Parliament and Legislatures of the States have enacted several laws and the governments have, from time to time, framed policies so that the national wealth and natural resources are equitably distributed among all sections of people so that have-nots of the society Page 49 of 99 suresh 908-PIL-127.2012.doc can aspire to compete with haves.
17. .... ....
18. For achieving the goals of Justice and Equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of rule of law.
19. In his work `Administrative Law' (6th) Edition, Prof. H.W.R. Wade, highlighted distinction between powers of public authorities and those of private persons in the following words:
"... The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, no absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms."
Prof. Wade went on to say:
"...... The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.Page 50 of 99
suresh 908-PIL-127.2012.doc There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law; it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities: it applies no less to ministers of the Crown. Nor is it confined to the sphere of administration: it operates wherever discretion is given for some public purpose, for example where a judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law.
For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere."
(emphasis supplied) 20 to 23 .... ....
24. In Ramana Dayaram Shetty v. International Airport Authority of India (supra), Bhagwati, J. referred to an article by Prof. Reich "The New Property" which was published in 73 Yale Law Journal. In the article, the learned author said, "that the Government action be based on standard that are not arbitrary or unauthorized." The learned Judge then quoted with approval the following observations made by Mathew, J. (as he then was) in V. Punnen Thomas v. State of Kerala AIR 1969 Ker. 81 (Full Bench):
"The Government is not and should not be as free as an individual in selecting recipients for its largesses. Whatever its activities, the Government is still the Government and will be subject to the restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal."
Bhagwati, J. also noticed some of the Page 51 of 99 suresh 908-PIL-127.2012.doc observations made by Ray, C.J. in Eursian Equipments and Chemicals Ltd. v. State of West Bengal (1975) 1 SCC 70 : (AIR 1975 SC 266) who emphasized that when the Government is trading with public the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions and held:
"........This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
(emphasis supplied) 25 to 30 .... ....
31. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action / decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of Page 52 of 99 suresh 908-PIL-127.2012.doc discretion, if any, conferred upon the particular functionary or officer of the State.
32. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions de hors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
33. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
34 to 41 .... ....
42. The challenge to the locus standi of the appellant merits rejection because it has not been disputed that the appellant is a public spirited organization and has challenged other similar allotment made in favour of Punjabi Samaj, Bhopal, That apart, as held in Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227 : (AIR 1987 SC 294) even if a person files a writ petition for vindication of his private interest but raises question of public importance involving exercise of power Page 53 of 99 suresh 908-PIL-127.2012.doc by men in authority then it is the duty of the Court to enquire into the matter."
These principles are reiterated in (2019) 10 SCC 483 (Bihar State Housing Board and others vs. Radha Ballabh Health Care and Research Institute Private Limited).
49. Further, the status of executive orders and directions is too well known and settled. In P.H. Paul Manoj Pandian v. P. Veldurai, reported in AIR 2011 SC 1660, the Hon'ble Supreme Court held as under:-
"5. ...... The learned Judge took into consideration the evidence adduced by the parties and the principle laid down by this Court in Competent Authority vs. Bangalore Jute Factory and others (2005) 13 SCC 477, wherein it is held that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone and in no other manner and concluded that the G.O. dated November 16, 1951, issued by the Government of Tamil Nadu, was only an administrative instruction but not a statute enacted by the Legislature and, therefore, the ratio laid down in the above mentioned decision was not applicable to the facts of the case. The learned Judge held that it was rightly pointed out that the Government Order dated November 16, 1951 contained only administrative instructions and while communicating the said Government Order to the Superintending Engineers and Divisional Engineers, it was specifically mentioned that the said administrative instruction was for information and guidance. ......"
"19. Departmental circulars are a common form of administrative document by which instructions are disseminated. Many such circulars are identified by serial numbers and published, and many of them contain general statement of policy. They are, therefore, of great importance to the public, giving much guidance about governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatever, having no statutory authority. But they may be used as a vehicle in Page 54 of 99 suresh 908-PIL-127.2012.doc conveying instructions to which some statute gives legal force. It is now the practice to publish circulars which are of any importance to the public and for a long time there has been no judicial criticism of the use made of them. Under Article 162 of the Constitution, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. Yet the limitations of the exercise of such executive power by the Government are two fold; first, if any Act or Law has been made by the State Legislature conferring any function on any other authority - in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the Legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor. Once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the Constitution to prescribe in the same field by an executive order. However, it is well recognized that in matters relating to a particular subject in absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the Executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate Legislature. Subject to these limitations, such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State. The powers of the executive are not limited merely to the carrying out of the laws. In a welfare state the functions of Executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is co-terminus with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State Executive can make regulations and issue Government Orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative if the Legislature has enacted a law with respect to the Page 55 of 99 suresh 908-PIL-127.2012.doc subject. ......"
50. We are also mindful and aware of the legal position that challenge to executive action can be considered only when the initial burden is discharged by the person approaching the Court {see: AIR 2000 SC 3313 (Netai Bag and others v. The State of West Bengal and others)}.
51. After the PIL petition is perused carefully, what we find is that there is a copy of the PR Card. In that PR Card, copy of which is at page 66 of the paper-book, it is said that the property bearing CTS No.657-A is admeasuring 62,26,788.7 sq.mtrs. and after the area in sq.mtrs. is set out, it has been said that the original title holder is the Maharashtra Government. Then below that are the details of the deals and transactions so also the orders passed by the Revenue authorities. In that it has been said that on 17-5-1979 the particulars of the orders have been entered and those orders are of the Tahsildar, Kurla and the Superintendent of Land Records, Mumbai. That say that 30,048 sq.mtrs. of land has to be deleted and there has to be a bifurcation made, namely, 657-A and 657-B. Thereafter, the original records are stated to have been in a torn state but that original record had to be cancelled and that is cancelled in terms of the direction of the Competent Authority, but the deals in pursuance thereof are Page 56 of 99 suresh 908-PIL-127.2012.doc entered on 29-5-1993. There are orders passed on 23-6-1992 and 12-8-1992 and they say that out of the total area, land admeasuring 2,38,375.8 sq.mtrs. has been handed over to M/s. Jolly Brothers Pvt. Limited. That has been handed over on 24-9-1992. After the said details are entered, there is a reference to an order passed in Writ Petition No.3246 of 2004 dated 6-10-2005 by this Court. There is also an order passed by the Commissioner of Land Records, Pune and there are further directions issued by the Superintendent of Land Records, Mumbai in the communications, more particularly set out therein. Thus there is a reference to an order passed by this Court in a PIL in relation to protection of mangroves and on 14-8-2008 land admeasuring 30,59,830.0 sq.mtrs. has been designated as protected mangroves. Thus there is a further correction made on 30-3-2010. This is in relation to City Survey No.657-A. Similar position obtains if one peruses copy of the PR Card of City Survey No.657-B. Then a survey of the PR Card of City Survey Nos.657-C and 657-D. There, reference is made to the rights of the Government and the Government is said to be the holder of the land/lessor. There is a clear reference to the fact that there is no lease deed between Jolly Anil India Limited and the Maharashtra Government insofar as City Survey No.657-C is concerned. Even with regard to City Survey No.657-D, there is no lease deed between the State and M/s. Particle Boards India Limited. After we have referred Page 57 of 99 suresh 908-PIL-127.2012.doc to the copies of the PR Cards and their translations in English, the petition also has some photographs and maps. We are not concerned as much with these photographs and maps for the time being. We are primarily concerned with the case placed before us and particularly on the Articles of Agreement of 5-3-1957 between Sir Mohamed Yusuf and Jolly Brothers Private Limited. Now, a copy of this is at page 84 of the paper- book. In these, Sir Mohamed Yusuf is described as the sub- lessor and Jolly Brothers Private Limited are described as sub- lessees. It is stated that the sub-lessor shall lease and the sub- lessees shall take on sub-lease all that piece or parcel of land situate at Kanjur near Kanjur Village bearing Survey Nos.73/1, 73/2 and 74/1 admeasuring approximately 34,000 sq.yards or thereabout and more particularly described in the Schedule "A". The period of sub-lease is 999 years renewable in perpetuity upon the same terms and conditions as will be contained in such sub-lease. The exact area of the land to be comprised in the sub-lease shall be ascertained on joint survey of the land by surveyors of both the parties.
52. The said piece of land as also the Khari land or creek land is held by the sub-lessor under a lease in perpetuity granted by the Government of Bombay to the predecessors-in- title of the sub-lessor and the sub-lease shall be subject to the terms and conditions contained in the Head Lease from the Page 58 of 99 suresh 908-PIL-127.2012.doc Government in favour of the predecessors-in-title of the sub- lessor and also on the same terms and conditions as are contained in the sub-lease executed by the sub-lessor in favour of Ciba Pharma Limited. Then there is a reference to a Suit being O.S. Suit No.431 of 1953 against the State of Bombay challenging the application of the Salsette Estates Act pending on the date of this Agreement and there is a reference made to an injunction against the State of Bombay. That order of injunction has been passed in favour of the sub-lessor. Importantly, in Clause 3 it is said that permission from the Collector of Bombay is necessary to indicate that the sub- lessor's rights are not affected by the said Act before the sub- lease could be executed. The sub-lessor will make an application for necessary permission to sub-lease the land comprised in Scheduled "A" hereto to the sub-leases. If such permission is granted within three months from the date of such application, the sub-lease shall be completed within two months thereafter. If, however, the permission is not granted within three months from the date of the application, either party will be entitled to put an end to the Agreement by giving eight days' notice in writing to the other party in which case the earnest money agreed to be paid thereunder shall be returned to the sub-lessees but without interest or costs. Provided further that if such permission is refused, the Agreement will be treated as an end and the sub-lessees shall be entitled to the return of the Page 59 of 99 suresh 908-PIL-127.2012.doc earnest money but without interest or costs. The other clauses, namely, Clauses 4 and 5 are then denoting that the rent will have to be computed and if the rent has to be computed and there are any proceedings in relation thereto, how the parties would approach the proceedings. In this case, it has been also clarified that the rates and taxes that may be levied by the Government or Municipal or Local Authority or Public Authority in respect of the land has to be paid and the sub-lessees will indemnify and keep indemnified the sub-lessor against such claim. The terms and conditions have to be in common with the sub-lease granted to Ciba Pharma Limited. Therefore, as is apparent from the reading of the memo of this petition and the Agreement that the same is executed during the pendency of the inquiry under the Salsette Estates Act and particularly during the pendency of the Suit. Thereafter, there is a reference to Consent Terms. The Consent Terms which are annexed to the petition as Exhibit "E" are carefully perused by us. It is clear from a perusal of the same that the Agreements to sub-lease mentioned in List-II to the Consent Terms and referred to as Items 1, 2, 4 and 5 in Exhibit "A" to the affidavit of Ishwarlal H. Kaji, dated 27-8-1957, in support of the Notice of Motion be and they are hereby sanctioned as hereinafter modified by the Consent Terms. Then it is said that the plaintiff do simultaneously with the execution of the sub-leases referred to hereinabove obtain from the respective sub-lessees an Page 60 of 99 suresh 908-PIL-127.2012.doc undertaking that the said respective sub-lessees will agree to pay to the Government, the defendant aforesaid, in respect of the lands comprised in their respective sub-leases the difference, if any, between the amount of the premiums agreed to between the respective sub-lessees and the plaintiff and the premium fixed by the Government of Bombay on the basis of the report of the Assistant Consulting Surveyor. After this the Consent Terms clearly say that the undertaking would be to this effect that in the event the Government succeeding in the Suit, they will abide by and observe the rules and regulations of the Land Revenue Code. Thus, it is termed as if the whole Suit is decreed in terms of the Consent Order but the Consent Order opens with the details of the Notice of Motion dated 27-8-1957 and it is on a reading of the Notice of Motion and the affidavits mentioned in List-I to the Consent Order that the terms are taken on file. It is stated in the Terms that the plaintiff, within a month or such time as may be extended by consent of the parties, from the respective date of the valuation by the Department, do deposit in the joint names in fixed deposit with Bank of India the amount of the premium and that amount would be lying in fixed deposit until final determination and disposal of the Suit by the highest Court of Appeal unless otherwise agreed upon by the parties and thereafter do pay to the Government of Bombay, if they succeed, the entire amount deposited with them and if the plaintiff succeeds, to pay the Page 61 of 99 suresh 908-PIL-127.2012.doc amount of the premium at the aggregate rate in respect of each sub-lease to the plaintiff and refund the amount of the difference to the respective sub-lessees. The consequences of default are also pointed out. The purported Consent Order apart, what one can refer from List-I and List-II of the Consent Order is that List-II makes a reference to an Agreement of sub- lease dated 5-3-1957 between Sir Mohamed Yusuf Kt. and Jolly Brothers Private Limited, acting on behalf of Anil Hardboards Limited for sub-leasing lands and more particularly described in the List-II, Item-1, page 93 of the paper-book. Then there is a reference to an agreement of sub-lease dated 7-5-1957 between Sir Mohamed Yusuf Kt. and Ved Prakash K.R. Irani . Then there is reference to other sub-leases.
53. What one notices thereafter is the reliance placed on an order in relation to a Kowl. We will come to that aspect a little later. However, the petition says that the presumption drawn from the Suit, the Consent Terms, is that all the sub- leases have been accepted unconditionally and not to be questioned by the Government, is not accurate. It is clear from the Consent Terms that it would have to be determined as to whether the Suit would be decreed in favour of the plaintiff therein and in absolute terms. Even after we perused carefully the affidavits of the private parties, what emerges from the documents extensively referred by them is that, respondent Page 62 of 99 suresh 908-PIL-127.2012.doc No.23 to this PIL and who is stated to have filed the first affidavit in reply is M/s. Nitco Marble Limited. We have perused this affidavit and which says that there was a scheme. Pursuant to that scheme, there is a merger. That scheme of merger has been sanctioned by this Court. Apart from what is highlighted in the sub-paragraph - Delay and Laches, it is stated that a sub- lease was executed in favour of respondent No.21 to this petition. The respondent No.21 is M/s. Particle Board India Limited and thereafter a formal agreement was executed by the Government in favour of respondent No.21 in the year 1999. However, the PR Card, extract of which has been annexed to this memo of PIL, does not make any reference to the formal document in favour of this party. Yet the party asserts that there was a lease in its favour. Apart therefrom, what has been said in this sub-paragraph is that the petitioner has approached the Court after a period of over 12 years from the date of execution of the agreement for lease. Prima facie, we do not see any record of the lease save and except this assertion to be found in the reply of M/s. Nitco Marble Limited. This Nitco Marble is stated to be a successor in title of respondent No.21. Apart therefrom, it is contended that there is no legal entity by name M/s. Particle Board India Limited existing any longer. That is on the basis of the scheme of merger sanctioned by this Court by order dated 8-7-2011. Prima facie, all this would definitely require a probe and we are surprised as to how the State of Page 63 of 99 suresh 908-PIL-127.2012.doc Maharashtra, through the deponent of its affidavit in this PIL, is conceding to this position.
54. Thereafter, in this affidavit there is a reference to the relevant and material facts in respect of the property occupied by respondent No.23. There is a clear admission therein and that is that the Government enacted the Salsette Estates Act by virtue of which, all the waste lands in the State of Maharashtra are to vest in the Government in accordance with the provisions of the Act. There is a reference to the Suit filed by Mohamed Yusuf Khot and it is conceded that during the pendency of the Suit, Mohamed Yusuf Khot executed an agreement to lease dated 5-3-1957 in favour of respondent No.19 inter alia with respect to the larger property on the terms, conditions and covenants mentioned therein. Pertinently, respondent No.19 to this PIL is Jolly Brothers Pvt. Limited. Thereafter, an Order is referred and it is conceded that this was a Consent Order dated 11-10-1957 in a Notice of Motion in the Suit bearing No.481 of 1953. The Consent Order also refers to the mutual obligations and we do not think that on a reading of the same that, prima facie, absolute title could have been derived under the sub- leases and the Consent Order by the beneficiary private party.
55. Thereafter it has been said that the validity of the Salsette Estates Act, 1951 was upheld and proceedings to Page 64 of 99 suresh 908-PIL-127.2012.doc determine whether the larger property vested in the Government were resumed by the Tahsildar. He made an order and declared that the larger property was a Government land. That is how the mutation entry of the larger property, admeasuring 80 acres, was made in the name of the Government (Mutation Entry No.95, dated 14-3-1962). After this there is reference to a Resolution of respondent No.2 to this petition. The respondent No.2 is the Revenue and Forest Department of the Government of Maharashtra and that Resolution is dated 11-5-1970, copy of which is at Exhibit "I" to this PIL. Exhibit "I" to the PIL is at page 154 of the paper-book. Page 154 of the paper-book was carefully perused by us and in that we find that a reference is made to a lease of Survey No.275 to M/s. Jolly Brothers. That Resolution says that sanction is a accorded to the lease of Government land admeasuring 80 acres from Survey No.275 of Kanjur in Bombay Suburban District to M/s. Jolly Brothers for industrial purpose on payment of rent at 6 1/2% per annum on the full market value of the land as on 8-5-1969. That will be fixed by the Government in due course and subject to the terms and conditions mentioned in the accompanying memorandum of terms and conditions. The Resolution is issued with the concurrence of the Finance Department. The Resolution itself is relied upon in this affidavit of M/s. Nitco Marble Limited (respondent No.23) to urge that there is a lease of the larger Page 65 of 99 suresh 908-PIL-127.2012.doc property to respondent No.19 for 99 years. Pertinently, there is a sentence appearing in the sub-paragraph on page 308 of the paper-book in main paragraph 4 that, on 1-8-1963 respondent No.19 sub-leased a part of the larger property admeasuring 16,257 sq.mtrs. to respondent No.21. The respondent No.21 to this petition is M/s. Particle Board India Limited. We have already seen that there is no reference to such a lease in the PR Card. Apart therefrom, this sentence is very guarded. It says that "In the meantime", "On or about the same time". It appears that respondent No.19 also granted sub-lease of certain parcel of land/property forming part of the larger property to one Anil Hardboard India Limited (respondent No.25) and Bombay Burma Trading Corporation Limited (respondent No.22). Then there is a reference made to show cause notice dated 13-5-1980, copy of which is at Exhibit "L" to the petition. We have perused that notice at page 162 of the paper-book. That notice is premised on the fact that Consent Terms dated 11-10-1957, arrived at in the Suit filed by Sir Mohamed Yusuf Khot in this Court, required fulfilment of terms and conditions in respect of the land admeasuring about 80 acres. The terms and conditions are that, there has to be a payment simultaneously with the execution of sub-leases and there was to be an undertaking from the respective sub- lessees. The show cause notice alleges that the sub-lessee Jolly Brothers have sub-leased land to three different Page 66 of 99 suresh 908-PIL-127.2012.doc companies, as shown in the show cause notice, without getting permission from the Government and has committed breach of the provisions of the MRTP Act. The notice alleges that land admeasuring 22,199 sq.yards has been subsequently sold to Anil Hardboard on 5-10-1960. The matter pertaining to ownership of the land in question was sub judice and any action by either party to transfer the land is totally illegal and void and there is breach of trust and violation of the agreement as also the clauses of the Consent Terms, amounting to contempt. Then it is alleged that M/s. Jolly Brothers Pvt. Limited were supposed to give an undertaking to the plaintiff that they will agree to pay to the Government difference, if any, of the premium charged by the plaintiff and the premium that will be chargeable as per the Assistant Consulting Surveyor's report, but no such undertaking is given by M/s. Jolly Brothers to the plaintiff. M/s. Jolly Brothers were supposed to abide by the provisions of the MRTP Act. However, they have made residential use in the land reserved for industrial purpose and hence they violated the provisions of the Land Revenue Code. For all these reasons, the allegation is that all prior orders, including the one dated 13-5-1970 are liable for cancellation.
56. Now, the private parties are referring to the regularisation by Government Resolution dated 17-2-1984. Even that has been carefully perused by us. A copy of that is to Page 67 of 99 suresh 908-PIL-127.2012.doc be found in this paper-book and that is self-explanatory. What we have noticed is that after the above act attributed to the Government (respondent No.2) and the Mutation Entry No.786 of 31-3-1986, a further Government Resolution dated 13-5-1985 is relied upon. However, the order by the State of Maharashtra passed on 18-12-1989 makes an interesting reading. After the case history has been given, the order of the Government says that the Government had initially, by Resolution and order dated 17-2-1984, fixed the market value as on 8-5-1969 at Rs.5.50 paise per sq.mtr. as per the estimate of Assistant Director of Town Planning. The lease rent was to be calculated at 61/2% of the full market value equal to the market value of the land plus 16 times the N.A. assessment. The Government also decided to regularise the intervening period from 5-3-1957 to 7-5-1969 for the lands in actual possession of the respondents and directed that a separate lease agreement be made for the period on payment of lease rent at 5% per annum on the full market value calculated on the basis of the rate of Rs.1500/- per acre, as estimated by the Assistant Surveyor to Government in 1957. The Government also directed that the arrears of lease rent be recovered from the respondents along with interest at 8% per annum till the payment of the rent in full. The Government called upon the respondents by office letter dated 11-9-1984 to pay the lease rent along with interest for the period 5-3-1957 to 31-3-1984.
Page 68 of 99suresh 908-PIL-127.2012.doc That was to be paid immediately. It also made clear that the lease agreement in respect of the lands in question would be issued only after the payment of the amount to the office. However, M/s. Jolly Brothers made a representation and approached the Government with the request that interest may not be charged on the arrears of lease rent, the arrears may be allowed to be paid in five annual instalments, the lease area may be surveyed and demarcated, and the land may be allowed to be used for residential purpose instead of industrial. The Government considered this request by its Resolution of 3-5-1985. However, it modified the interest rates and in addition to the above also allowed instalments for payment of the outstanding amount. The instalments were to be adjusted and no further concession should be given. The Government worked out the amount with interest and that was crystalised at Rs.31,89,880.95 paise. The instalments were also worked out. From the record it is revealed that the schedule of payment was accepted but there was a default. The amounts were not paid. This despite issuance of notices from time to time. There were other breaches of the conditions of lease as a result of which the lease became liable for termination and the land resumed to the Government. That is how the show cause notice was issued and that show cause notice is dated 11-5-1989. The relevant details of this show cause notice are in para 17 of the order passed on the show cause notice. The running pages are 170- Page 69 of 99
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171. The relevant paras, namely, 17, 18 and 19 read as under:-
"17. The respondents were issued with a show cause notice dt. 11-05-89 asking them to show cause as to why the lands may not be resumed on the following grounds:
(1) As per condition No.1 of the terms & conditions, the respondents were to furnish an indemnity- bond which was not received till date. (2) As per condition No.3 of the terms & conditions of the lease-deed, the respondents were supposed to pay lease rent @ 6½% per annum of full market value. As per condition No.9, the above lease rent was payable before 10 th of January every year. The total outstanding as on the day of the notice were indicated as Rs.91,63,613.58 ps.
The respondents had however failed to make the above payment & had hence violated the terms of lease.
(3) As per the condition 4 of the terms & conditions of the lease-deed the respondents were required to deposit as security deposit, an amount equal to one year's lease amount. The respondent's have failed to deposit the above security deposit. (4) As per condition No.11 of the terms & conditions of the lease-deed, the respondents had to put half of the land in question into N.A. use within 2 years and full land into N.A. use within 5 years of the lease. It was noticed that the respondents had not put the land to N.A. use so far, as per the above conditions & had thus violated this condition of the lease.
(5) As per condition No.12 of the terms & conditions of the lease-deed, the respondents were to pay 50% of the unearned income to the Govt.
whenever it subleased the lands. It was noticed that the respondents had leased out lands to M/s Anil Hard-boards, M/s Particle Board India Ltd. & M/s Bombay Burmah Trading Corp. Ltd. but had failed to pay the 50% of the amount of unearned income to the Govt. & had hence committed a violation of the terms of the lease.
18. The respondents were therefore asked to show cause as to why the lease for entire lands in their possession may not be terminated and the lands Page 70 of 99 suresh 908-PIL-127.2012.doc resumed to Govt. without the payment of any compensation. The respondents were also allowed to appear personally in case they wished to do so.
19. The respondents have vide their written reply dt. 29-5-89 given their say in the matter. Another date was also fixed on 19-6-89 to hear any further arguments of the respondents. On 19-6-89 the respondents failed to appear though they were fully aware of the proceedings having been fixed for that date. Presumably the respondents did not want to make any further submissions other than the written say and hence the case was closed for order."
57. At a hearing of this show cause notice and the order passed thereon holds that, firstly, the affected parties objected to the notice on the ground that Writ Petition No.3716 of 1988 is filed by them and there was an order of stay passed in that petition on 7-12-1988 pending admission. Therefore the show cause notice is not tenable, was the initial objection No.1. However when the record of the writ petition was perused, the High Court granted an interim stay in respect of order of attachment and seizure and consequential sale of the factory premises and godown of Oil & Natural Gas Commission which were on the premises of Jolly Anil Limited, one of the three sub- lessees of the respondents before the Additional Collector. This order of the High Court could not have therefore enabled the respondents to raise any objection to the show cause notice. That is how this objection came to be rejected. Then the further objection has also been dealt with and after the Additional Collector made a reference to the Consent Order in the Suit, the Additional Collector concludes that the Consent Order did Page 71 of 99 suresh 908-PIL-127.2012.doc not in any way grant further title to the respondents and in fact held as valid the provision of the lease deed between the respondents and the ex-khot that the lease dated 5-3-1957 shall cease to exist as soon as the claim of the ex-khot is finally decided by the Government. Since the sub-lessor ex-khot lost the case against the Government in respect of land in question, it is clear that the lease in favour of the respondents could, at most, continue till the dispute in regard to vesting of the land in question in the Government was decided finally in the year 1971. In other words, the respondents could not claim any right as lessee of the Government after the dispute is finally decided as per the terms of the above lease agreement, on the basis of which the Consent Decree dated 11-10-1957 is passed. Thus, this detailed order of the Additional Collector passed in the year 1989, upheld the show cause notice and eventually directed the respondents to comply with his directions. The directions are found in the operative part of the order at page 203 of the paper-book.
58. The private parties are aware that this order of the Government (Additional Collector) has been questioned, on their own showing, in an Appeal before the Minister. The list of dates relied upon before us by Mr. Chinoy and the private entities who have filed affidavits, clarify that after the order of the Additional Collector dated 18-12-1989 a Revision was filed.
Page 72 of 99suresh 908-PIL-127.2012.doc The Revision Application was decided on 20-5-1992. The order in that application is at page 206 of the paper-book. The order says that it is also filed against the order of the Additional Commissioner, Konkan Division, on 19-11-1990. The Additional Commissioner disposed of two Appeals before him by a common order. The Advocate representing the appellant M/s. Jolly Brothers Pvt. Limited raised an issue that 66 acres of land allotted but purportedly resumed by the order of the Additional Collector dated 18-12-1989 may be directed to be restored and order under appeal be set aside and the Collector may be directed to demarcate the same from the land of Khetan Industries and boundaries may be fixed, through the Survey Department. A request was made that while fixing the boundaries and ascertaining the area of 66 acres of land from Survey No.275 of Village Kanjur, strip of land falling under the impact of high tension wire passing through the land may be directed to be excluded. The name of M/s. Jolly Brothers Pvt. Limited, removed from the other rights column of Record of Rights, may be directed to be restored and relevant mutation may be directed to be cancelled. No interest should be charged. Thereafter grievance was made that the matter was under dispute and development was not permitted. So the substantive request was to recall everything and after the facts were noted, the order passed by the Revenue Minister says that the orders of the Collector dated 18-12-1989 and 3-7-1990 Page 73 of 99 suresh 908-PIL-127.2012.doc of the Additional Commissioner, Konkan Division are set aside. The mutation entry bringing the name of the Government in the Kabjedar column of the Revenue Records should be cancelled and the name of the appellant be restored. All the lands mentioned in para 6 of the order of the Minister should be demarcated and measured and actual land in possession be worked out by deducting whatever was leased out to M/s. Andhra Valley Corporation in 1921-25. The appellant should get 66 acres of land as per the Government Resolution dated 18-5-1985. The lease rent thereafter should be worked out, as mentioned in paras 5 and 6 of the order. The interest on arrears of lease rent should be charged as indicated in the Government Resolution dated 18-5-1985. The observations in para 5 of this order are, that the appellant was holding land from the ex-khot of Kanjur. The land was declared as Government ownership. The appellant is therefore liable to pay lease rent to Government in terms of the lease sanctioned by the Government. Then a reference is made to the order of the Collector of Bombay Suburban District and confirmed in Appeal by the Additional Commissioner. In para 5 of the order of the Minister it is held that it is clear that the land is resumed by the Collector for breach of condition, namely, non-payment of lease rent by the lessee/appellant. It is clear that no grievance about payment of lease rent has been made and the appellant has accepted the terms and conditions of lease but it has a Page 74 of 99 suresh 908-PIL-127.2012.doc grievance about the basis of calculation of lease rent, calculation of arrears on that basis and charging of interest on such amount. The foremost grievance is regarding survey and demarcation of land granted to it by the Government on lease. Thereafter there is a reference made to a litigation by M/s. Khetan Industries Limited who have claimed possession of part of that land. Thus there was no proper survey and no demarcation. It is in these circumstances that in paras 5 and 6 of the order of the Minister, it is observed as under:-
"5. It will be clear from the history narrated in brief, in the foregoing para that the Appellant in the present case was holding land from Ex-Khot of Kanjur and his existence on the land was regularised by Government by treating him as Government lessee, when the land was finally declared as of Government ownership. The Appellant is therefore, liable to pay lease money to Government in terms of lease sanctioned by Government the Lessor. From the elaborate order passed by the Collector of Bombay Suburban District and confirmed in Appeal by the Additional Commissioner, Konkan Division, it is clear that the land is resumed by the Collector for breach of condition viz. Non-payment of lease rent by the lessee the Appellant. From the submission of the Appellant in Appeal memo as well as of the pleader of Appellant at the time of hearing as set out specifically in para 3 above, he has no grievance about payment of lease rent, the Appellant having accepted the terms and conditions of lease, but he has a grievance about the basis of calculation of lease rent, calculation of arrears on that basis charging of interest on such amount.
The Appellants foremost grievance is regarding survey and demarcation of land granted to him by Government on lease. Though originally land has been surveyed and granted to leasee. One M/s. Khetan Industries Ltd. has claimed possession of part of that land. In suit No.3405 of 1981, Judge of the City Civil Court has passed an order on 5.8.1986 that D.I.L.R. or such other authorities concerned with the work of carrying out survey and demarcation, shall carry out survey in presence of both the parties and/or Page 75 of 99 suresh 908-PIL-127.2012.doc their representatives, and shall submit report to the Court on completion of Survey. The court has further directed to maintain status quo till this survey and demarcation is carried out. This will show that part of the land which lessor has leased to the Appellant Lessee is being claimed by some other party and the survey and demarcation directed to be done by the Court, to decide the claim, has not been carried out by the authorities concerned till this date. In the face - this fact, which is on the record of this case, it will not be correct to say that the lessee has committed breach of condition by non-payment of lease rent when there is dispute regarding the precise area of the land leased inasmuch as some other party is claiming part of the same land, which has lead to issue of the directive in the form of an order from the Court as aforementioned. I, therefore, order that the Collector, should get the demised land measured and demarcated as directed by the Judge with notice to all the parties as mentioned in the court order (suit No. 3405 of 1981) and ensure that report is sent to court as mentioned in the Court Order. This will set right the controversy regarding demised land in possession of the Appellant Lessee. Once this is done, it will be possible to calculate the lease rent payable by lessee in accordance with the terms and condition of lease sanctioned in his favour. The calculation of lease rent and arrears thereof, which are communicated to the lessee is thus likely to undergo certain changes. The impugned order, passed for breach of condition-viz- non-payment of lease rent and arrears thereof in view of aforementioned facts, is theretofore not properly passed and is set aside.
Further dispute is about interest charged on such amount. Unless the root cause of dispute aforementioned is resolved, it is futile to initiate action to recover the amounts by coercive process.
6. The land involved in this matter was already held on lease by the Appellant from Ex-Khot and Government as Lessor, has already decided to accept the Appellant as lessee on terms and conditions set out in G.R., R. & F.D. No.LND 2678/14758(A) G8(11), dated 13th May 1985 which are binding on the lessee, once he agrees to accept the same.
The extent of the land leased is shown as 80 Acres approximately. Thereafter, portion of this land has been sub-leased to following parties by the Appellant lessee:-
1) M/s. Anil Hard Board
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2) M/s. Particles Board India Ltd.
3) M/s. Jolly Anil India
4) M/s. Bombay Burma Trading Corporation.
The exact area sub-leased to the aforementioned parties has been demarcated and determined. The Appellant wants that payments made by these sub- lessees of Appellant to Govt., should be adjusted against lease rent payable by him. This submission of the Appellant is quite reasonable. Govt. would never like to recover lease rent in respect of same area of land from two parties for the same period. However, whether the Collector has worked out the payable lease rent in the aforementioned manner from both the parties (i.e. leasee and his sub-lessees) or otherwise is not sufficiently clear. The Collector will, therefore, have to bear this aspect in mind while finalising his demand, in accordance with the directives in this order.
It is also the contention of the Appellant that H.T. power lines of Andhra Valley Power Corporation are passing through the land shown under lease with Appellant. Obviously, Government as lessor cannot lease such land to Appellant. The exact area made over to the Andhra Valley Power Corporation for the said Transmission lines will have to be deducted from the area under lease with the Appellant Lessee viz. M/s. Jolly Brothers Pvt. Ltd. Thus, the area under lease has to be calculated first by survey and demarcation and then the lease rent will have to be worked out on the basis of terms and conditions subject to which the lease is sanctioned.
The Appellant has also raised following two points:-
i) Charging of Interest on amount of lease rent retrospectively is not proper inasmuch as arrears were not accumulated because of any lapse on the part of lessee.
ii) Taking into account capitalisation of N.A.A. for the purpose of ascertaining of F.M.V. is not proper because land is not put to N.A. use.
Looking to the historical background of this case, it is clear that the Government decided to accept the appellants as Government Lessees for the land in question, as a compromise formula to end protracted litigation. The conditions of lease prescribed by the Lessor are the same as normally prescribed in all such cases and I have not come across any deviation therefrom in this particular case. The full market value fixed at Rs.5.50 per sq.mtr. as on 8.5.1969 is in Page 77 of 99 suresh 908-PIL-127.2012.doc consultation with Town Planning Deptt., and has been fixed as per normal procedure. The rent fixed for lands granted on lease for non-agricultural purpose is at the prescribed percentage of the full value which includes the incidence of 16 times the non agriculture assessment. Besides, the orders issued in G.R., R.& F.D.No. LND-2678/14758(ii)-0-8(ii) dated the 18th May 1985 are thus a part of the conscious decision of Government to lease the land to the Appellants on the terms and conditions laid down therein. However at the time of hearing the appellant strongly objected to the market value fixed at Rs.5.50 per sq.mtr. as on 8.5.1969. In view of the objection of the appellant, the market value on that date may be re-examined and if necessary re-fixed within a period of three months and further action may be taken as per rules."
In para 6, there is a reference made to the various sub-leases and the finding therein is that the orders issued by the Government are part of a conscious decision to lease the land to the appellant on the terms and conditions laid down in the Government Resolution dated 18-5-1985. It is in these circumstances that another argument was considered that there has been neither parting of possession nor sub-leasing of the land. The order of the Minister is thus passed on a sympathetic consideration. After this order, what emerges from the list of dates is that there was a litigation in relation to a land claimed by Bafna. There is afterwards a lease stated to have been executed on 19-6-2006. That is annexed as Exhibit "F" to the affidavit in reply of respondent No.27. The said document has been carefully perused by us. That is at page 431 of the paper- book. That is an agreement between the State of Maharashtra and M/s. Jolly Board Limited. The State of Maharashtra is the Page 78 of 99 suresh 908-PIL-127.2012.doc lessor and M/s. Jolly Board Limited are the lessees. After the recitals making a reference to all the above facts and circumstances, what the lease says is that the parties have agreed and particularly the lessee unequivocally admits the title of the lessor to the land. The lessee agreed to deposit with the Collector of Bombay Suburban District Rs.19,29,038.80 paise, in cash. After this the covenants are that during the term of this lease the lessee will pay the rent and from time to time without falling in arrears, that the taxes would be paid and that the Municipal Corporation of Greater Mumbai would have to be approached to seek approval to the specific plans and for the construction activity. That it will not commence any work on the piece of land until the plans, elevation details and specifications are approved, that the demised premises would be used only for industrial purpose, as may be provided by the Director of Industries, Government of Maharashtra and for no other purpose [see clause (I) on page 437 of the paper-book]. Thereafter the parties agree that the lessees will maintain and repair the premises. The clear specification is that the lessee will not assign or transfer the demised premises or any part thereof, that the lessee will abide by all provisions of the Maharashtra Land Revenue Code, 1966. The further covenants of the lease are also important and what we have noticed is that the lease will be for 30 years from 19-6-2006, the ground rent will be fixed as per the Government policy from time to time.
Page 79 of 99suresh 908-PIL-127.2012.doc The lease will be subject to renewal after the expiry of 30 years on condition that there is no breach of any of the conditions of the lease agreement and also of payment of revised rent. The lessee shall also obtain the Non-Agricultural permission as per the provisions of the Revenue Code of 1966. The lessee shall utilise the land for Non-Agricultural purpose within a period of five years from the date of execution of agreement. In case the lessee approaches the Government for sub-letting the lease hold rights, it would be competent for the Government to charge premium representing 50% of the unearned income and also to lay down such further conditions as the Government decides. The lessee would comply with all provisions of the Revenue Code of 1966 and the Rules made thereunder.
59. Now, the argument is that there is a Government Notification under Section 37 of the MRTP Act modifying Table- 4 of Regulation 9. Prior to that we must also refer to the affidavit and which follows the stand in the first affidavit in reply and borrows virtually the same words. The crucial affidavit in that regard is by respondent No.19. As far as that affidavit is concerned, it is affirmed by Dev Prakash Awasthi. In that affidavit, the deponent, insofar as these facts are concerned, while relying upon the lease deed, has prior thereto stated that there was a lease agreement dated 21-6-1995 executed between the State of Maharashtra and M/s. Jolly Brothers Pvt.
Page 80 of 99suresh 908-PIL-127.2012.doc Limited. The Jolly Brothers were demised land admeasuring 58 acres, 36 1/4 gunthas for a period of 99 years commencing from 8-5-1969. Thereafter, by and under a lease agreement dated 9-6-2004, executed between the State of Maharashtra and M/s. Jolly Brothers Pvt. Ltd., the Government demised land corresponding to CTS No.657-A (Part) admeasuring about 7 acres 3 gunthas 12 annas. The two agreements are dated 21-6-1995 and 9-6-2004. As far as events prior to the above agreements, they have been summarised in this affidavit. The Jolly Brothers have claimed to have sub-leased a part of the land. We have also the stand of this respondent that the petitioner refers loosely to parties as M/s. Jolly Brothers without indicating which respondent it is referring to. M/s. Jolly Board Limited, respondent No.26, is altogether a separate legal entity than respondent No.19 to this petition. It is, therefore, the stand of these two parties that they are not one and the same legal entity. Yet, in this affidavit there is reference to all the facts as narrated in the affidavit of Nitco Marble. It is also clear from this affidavit that respondent No.19 to this petition is claiming that the land in question and the land which is the subject-matter of the deal between M/s. Lodha Developers, is different. This respondent No.19 says that it has no connection with Jolly Board Limited, which is arrayed as respondent No.26 and which apparently entered into a development agreement with M/s. Lodha Developers. It is reiterated that respondent No.19 is Page 81 of 99 suresh 908-PIL-127.2012.doc not connected either with M/s. Jolly Board Limited or M/s. Lodha Developers.
60. For this reason, it would be necessary to refer to the affidavit and which respondent No.26 has filed. The respondent No.26, in this affidavit affirmed by Mahesh Bhavsar, has stated that the land bearing Old Survey No.169 (Part) corresponding to New Survey No.275 (Part) admeasuring approximately 80 acres at Village Kanjur, Taluka Kurla, Kanjur Marg was vesting in Mohamed Yusuf Khot. The Suit, Consent Terms, Consent Order, Additional Collector's order, Minister's order are all referred to and thereafter it is said that having regard to the fact that sub-leases were created in favour of respondent Nos.21, 22 and 25 in respect of pieces of the larger property by Government Resolution dated 17-2-1984, the Government inter alia decided that a lease in respect of an area admeasuring 66 acres, forming a part of the larger property, should be executed in favour of respondent No.19 and separate orders would be issued in respect of 14 acres of land, forming part of the larger property, which was sub-leased by respondent No.19 to its sister concerns, including the erstwhile respondent No.25. Thereafter there is a reference made to all the Government Resolutions and culminating into the one dated 13-5-1985. There, the Government had agreed to grant to respondent No.26 lease in respect of Property "A" bearing Survey No.275 Page 82 of 99 suresh 908-PIL-127.2012.doc (Part) admeasuring 9 acres 32 gunthas. However, on 24-6-1985, the name of respondent No.25 was changed to Jolly Board Limited, that is respondent No.26. Then there is a reference made to the order of the Additional Collector, Bombay Suburban District dated 18-12-1989 and the order passed on the Revision Application of respondent No.19. The occasion to refer to all this is to justify the lease of 19-6-2006, but what that says is that the same is between the State of Maharashtra and Jolly Board Limited. As far as the land bearing Property "B", in relation to that the facts are summarised and once again it is pointed out that the name of Anil Hardboard changed with effect from 18-6-1985 to Jolly Board Limited. Thus the name of respondent No.25 changed to Jolly Board Limited and the name of Anil Hardboard changed with effect from 18-6-1985 to Jolly Board Limited. After all the property details are summarised, what this affidavit seeks to project before us is that there is an error in the petition inasmuch as respondent No.19 Jolly Brothers Pvt. Limited and respondent No.20 Jolly Anil India Limited are not connected in any way with Jolly Board Limited, respondent No.26. Jolly Board Limited is a party arrayed as respondent No.26 to the petition. It is claimed that the petitioner appears to be a NGO created by some interested land occupants and that is hardly one year old. It claims that the entire property is owned by the Government of Maharashtra. The affidavit then says that respondent No.26 has Page 83 of 99 suresh 908-PIL-127.2012.doc not committed any irregularity or unauthorised construction work nor has played or committed any fraud or any scam. All land leases are by registered documents and as per the Consent Terms filed in the High Court Suit. It is submitted that respondent No.26 is not carrying out any construction work by itself. The respondent No.26 appointed M/s. Lodha Developers, respondent No.27, to carry out the construction. The respondent No.27 has agreed to take all required permissions, approvals and respondent No.26 understood that respondent No.27 has taken all required permissions and approvals. It is claimed that the development of the property is done as per the policy of the Government. The change in user of land, particularly for residential purpose is with the permission of the Collector. Then it is said that Jolly Board Limited is not a party to Writ Petition No.5792 of 1996 and therefore do not know its present status.
61. It is claimed that this PIL has impleaded respondent No.26 but there is absolutely no issue about the title of respondent No.26. It is claimed that the only connection with respondent No.26 is the lease deed dated 19-6-2006 executed in its favour for land admeasuring 39,690 sq. mtrs. bearing CTS No.657-A. It is therefore claimed that the petitioner has mixed the issues. It is clear that there is a Resolution passed by the Government of Maharashtra sanctioning grant of lease to Jolly Page 84 of 99 suresh 908-PIL-127.2012.doc Brothers Pvt. Limited. After taking the land, respondent No.26 used it for industrial purpose from 1958 to 2005 and thereafter the same has been developed for IT user which is also an industry. It is denied that M/s. Jolly Brothers Pvt. Limited has illegally and unlawfully sub-leased a portion out of the property bearing CTS No.657, Survey No.275 to respondent No.26, as alleged by the petitioner. This affidavit therefore justifies the stand of not only this respondent No.26 but other parties also. It is saying in para 42 and 43 that Jolly Board Limited has paid the lease rent, as directed by the Revenue Minister on 22-10-1992. As on date the Government has not issued any letter or notice to the effect that respondent No.26 has any outstanding rent payable. It is regularly paying the lease rent. The respondent No.26, according to this deponent and as per para 47 of this affidavit, properly executed co-development agreement on 2-12-2005 with respondent No.27 which entitles respondent No.27 to carry out the construction with all required permissions. The respondent No.27 has obtained IOD before commencing the work and complied with all the requirements and has obtained Occupation Certificate from the BMC for two buildings in iThink Techno Campus. In respect of the construction work which is in progress, respondent No.27 has obtained IOD before commencing work from the BMC, also obtained permission from the Collector to use the land for residential and commercial purpose. The development on the Page 85 of 99 suresh 908-PIL-127.2012.doc said property, which had a prescribed user of District Centre, is in line with modification of the relevant DCR vide Notification dated 4-12-2008 of the Urban Development Department of the Government of Maharashtra. This Notification modified relevant Regulation No.54 of the DCR permitting development of District Commercial Centre on compliance of conditions specified therein. One of the conditions is to handover a specified percentage of constructed area to the BMC for public purpose. This condition is also complied with. A Power of Attorney dated 2-12-2005 is executed mainly to enable respondent No.27 to represent respondent No.26 before various authorities for the purpose of obtaining approvals and permissions and execution of required documents. Mr. Arvind Jolly has signed the Power of Attorney not in his personal capacity but as Managing Director of Jolly Board Limited (respondent No.26). All the allegations about change of user have been denied and the affidavit then says that the Government has modified reservation in accordance with law and the same is gazetted and the said Resolution is not challenged at all. The affidavit then says that the Government has not removed reservation but allowed to construct premises for public purpose and handover, free of cost, the said premises to the BMC. The entire construction is in consonance with the DCR. In para 66, it is stated that the petitioner has not proved before the appropriate Court that the title of the land is defective. Assuming whilst denying the Page 86 of 99 suresh 908-PIL-127.2012.doc correctness of the allegations made by the petitioner, it is now too late for the Government to take back the land as more than 30 years have passed. The physical possession has been with respondent No.26 since more than 50 years, with the knowledge of the Government.
62. We have noted the above affidavit in detail simply because the argument before us is now we should not look at any lease deed but an order of the Government dated 28-6-2010. Then we should not also miss out a subsequent order of 13-7-2011 which clarifies that it applies to the 66 acres leased to respondent No.19 and also the 9 acres 32 gunthas leased to respondent Nos.25 and 26. This order also notes that out of the total area of 9 acres 32 gunthas, that is, 34,906 sq.mtrs., 4,783.88 sq.mtrs. was falling under industrial zone and that commercial/residential use could be permitted on payment of Rs.5,84,69,174.75 paise which the order itself records has been deposited by respondent No.26. We must also note that pursuant to these two orders and Notifications, respondent Nos.26 and 27 have constructed two commercial towers and two residential towers. Three more towers are in the advanced stage of construction. In accordance with the modification of DCR, these respondents have already constructed a building consisting of 30% of reserved area for being handed over to the Municipal Corporation of Greater Page 87 of 99 suresh 908-PIL-127.2012.doc Mumbai.
63. Before we conclude, we will make a reference to this order of 28-6-2010 heavily relied upon. A copy of that is at page 246 of the paper-book. This order has been passed on the subject of allotment of land to Jolly Brothers Pvt. Limited. The land is stated to have been allotted on 11-5-1970. That is admeasuring about 80 acres. It is for a period of 99 years. It is a lease. In this there is a condition that after 33 years the ground rent can be revised. Therefore from the year 2002, the ground rent was required to be revised. However, the land has not been developed on account of CRZ Regulations and other reasons. Therefore the revision should not be effected. Alternatively, if revision has to be effected then that should be done after a period of 33 years from the date of the lease. The other point or subject or issue was that, though the land was allotted for industrial purpose, still in the Development Plan, it has been reserved for District Commercial Centre. Therefore, it can be used for a commercial purpose and for sale. No premium should be charged. These are the demands as also related issues raised by M/s. Jolly Brothers Pvt. Limited. The Government decided that after consideration of all these issues the land can be used or developed after its release from CRZ in terms of the DCR of 1991 and on obtaining approvals from the Competent Authority. This has been agreed to by the Page 88 of 99 suresh 908-PIL-127.2012.doc Government. However, what this document says is that whenever the purpose for which the land has been leased or allotted is proposed to be changed, the permission of the Government is necessary. The land has been allotted for industrial purpose. However, in the DCR of 1991, the subject land has been included partly in commercial, partly in industrial and residential zone. The entire land therefore cannot be used for industrial purpose. The request is that the utilisation or use may be permitted in accordance with the deregulation and changes therein. For that purpose one condition in the lease deed be relaxed. A reference is made to that aspect of the matter and it has been said that such a user consistent with the zone is permissible but that is conditional upon the terms specified therein. After the land has to be utilised in the manner set out in this order, then, portions thereof which are reserved for road, playground, recreational ground, such portions would have to be handed over to the Competent Authority. Further, the user is permitted on the revision in the lease rent and therefore the lease rent will have to be computed on the basis that the land is utilised for commercial purpose. The rate in accordance with such user should be charged. The entity which is utilising the land as per the changed DCR must comply with all the Regulations and the Regulations in the DCR of 1991. It will be incumbent upon the entity utilising this land for the changed purpose to ensure that there is no violation of the CRZ Page 89 of 99 suresh 908-PIL-127.2012.doc Notification. Pertinently, it will be open for the Collector to impose such other conditions as he may deem fit. As far as raising of finances for the purpose of the utilisation, this order contains specific stipulations. As far as the request made by M/s. Jolly Brothers Pvt. Limited that they should be allowed to carry out the development and the development rights should be conferred on them, their attention was invited to a Government Resolution dated 9-7-1999. There the permissible TDR can be availed of provided there is a premium over and above the market value of such TDR to the extent of 3% and if the TDR has to be used for commercial/industrial purpose, then over and above the market value 5% would be the premium. This is the stipulation in this order. However, there are additional conditions and that are to be found in sub-para (c). The other stipulation in this is for permitting development of the land through a developer. There as well the stipulations are contained in sub-para (d). It is clearly stipulated therein that when the land is being developed through a developer, no third party right should be created. The stipulation is that all agreements between the lessee and the developer would be executed after the draft of the same has been forwarded to the Collector for approval and the Collector has approved the same. Further and importantly, while developing the land and executing the development agreement, the lessee has to ensure that interest of the State and the public is not adversely Page 90 of 99 suresh 908-PIL-127.2012.doc affected. Even the Collector will have to ascertain that. Thereafter, on the point of measurement as well, the attention of M/s. Jolly Brothers Pvt. Limited is invited to the order of the State Government, passed by the Revenue Minister on 20-5-1992. By inviting the attention of M/s. Jolly Brothers Pvt. Limited to that order, it is categorically held that this order has not been implemented. Thus, the order is disobeyed and in terms of that order necessary action has to be taken. Therefore, measurements and demarcation will be done by the Competent Authorities in terms of the Government policies by charging the requisite fees.
64. Prima facie, we do not think that any material has been placed of compliance with these terms of the order dated 28-6-2010. While placing reliance on this order, prima facie, the terms thereof have been overlooked. We are surprised that the Government has filed an affidavit without even adverting to the terms and conditions of this order and all prior documents, including the lease in favour of M/s. Jolly Brothers Pvt. Limited. We do not see how the State can justify its contradictory stand. Insofar as Bafna is concerned, the Government moves Civil Application No.84 of 2016 in Writ Petition No.5792 of 1996 and seeks variation of the interim order as the interim order of status quo has been misused and rather abused by the parties. The Government then should justify its non-intervention when it Page 91 of 99 suresh 908-PIL-127.2012.doc has made a categorical order on 28-6-2010 on the application/proposal of M/s Jolly Brothers Pvt. Limited insofar as the land bearing CTS No.657-A. If that land was the subject matter of lease then that lease ought to have taken note of the transaction with M/s. Lodha Developers. If there was a lease in favour of M/s. Jolly Brothers Pvt. Limited and on that basis there is reliance placed by M/s. Lodha Developers on the same, then, all the more we feel that the Government ought to have satisfied the Court with regard to total transparency in this deal. It has failed to establish, even prima facie, compliance with all this. We find that the PIL petitioner has made out a case for initiation of inquiries and we therefore direct the Collector, Mumbai Suburban District, irrespective of what has been set out in the affidavit filed in this petition on behalf of respondent No.2, to initiate the necessary inquiries. He should in relation to all matters covered by this PIL and the lands referred therein take the necessary steps. We do not think that mere initiation of inquiries would prejudice any parties. We do not think that initiation of inquiries would be barred by delay and laches, as proclaimed, if the utilisation in terms of the Government permission and order is yet to be made by M/s. Lodha Developers and by respondent No.26. In the circumstances, prima facie, the proposed notice would not be barred by delay and laches. In any event, after the notice is issued and served, it would be open for the parties, against whom the same is Page 92 of 99 suresh 908-PIL-127.2012.doc issued, to urge that by passage of time the deals and transactions already concluded should not be reopened. All such contentions can be raised irrespective of the prima facie finding that the proposed notice is not vitiated by delay and laches. There is a difference between notice being issued belatedly and that notice affecting all deals and transactions concluded decades prior to its issuance. It is the latter part which can be still agitated by giving reply to the show cause notice and raising appropriate contention. Thus the merits of the show cause notice are not commented upon by us. We are concerned because this is a Government land and claimed as such. The parties have gone to the extent of saying that Government has lost its right, title and interest in the land merely because of passage of time. To our mind, if the Government is the lessor and the parties under the Government are lessees, then this assertion, in the absence of specific covenants in the lease deed is prima facie not acceptable. In the circumstances, all the more, larger public interest will be sub-served by initiation of such inquiries and by invoking the powers to initiate them, as conferred by the Maharashtra Land Revenue Code, 1966. Ultimately, the lease is traceable to Sections 20, 38 and 40 of the Revenue Code of 1966 and the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971. If these Rules contemplate grant of a lease hold rights, then, whether that have been Page 93 of 99 suresh 908-PIL-127.2012.doc breached or not can surely be probed by the Government. We do not think that such an inquiry is foreclosed merely because of the assertions in the affidavits in reply.
65. We summarise the issues on which the inquiry should be made. Firstly, the prima facie conclusions recorded by us denote that the land is Government land/public property. Secondly, the Collector of the concerned District within which such lands are situate ought to be conducting the inquiry. Thirdly, none including senior executive functionaries such as the Secretary in the Department of Revenue and Forest would issue any directions or interfere with the exercise of power by the Collector pursuant to our order. The Collector shall, uninfluenced by any direction, conduct the inquiry.
66. The inquiry shall be conducted on the following points and issues:-
(a) Whether the terms and conditions on which the land was allotted or leased have been complied with by the lessee?
(b) Whether the sub-leases created by the lessee are in accordance with the terms and conditions of the lease deed executed between the State and the head lessee?Page 94 of 99
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(c) Whether the terms and conditions of the lease with regard to payment of lease rent in a timely manner, or if delayed, along with interest, are complied with?
(d) Whether all previous show cause notices and the adjudication made in furtherance thereof is binding on parties to the lease?
(e) If the lessee and the sub-lessees claim that the orders made by the State Government and particularly that of the Revenue Minister dated 20-5-1992 are absolute and the moment this order is passed, the earlier orders including that of the Additional Collector automatically stand set aside?
(f) If the order of the State Government/Revenue Minister is conditional, then, whether all the terms and conditions set out in the said order are complied with and in what manner?
(g) Whether the lands could have been dealt with relying upon the Consent Terms filed in the suit, namely, Suit No.481 of 1953 dated 11-10-1957, particularly when these terms do not dispose of the suit but an interim application/notice of motion therein?Page 95 of 99
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(h) When the lands have been dealt with relying upon the Consent Terms but during the pendency of the inquiry under the Salsette Estates Act, then, whether the outcome of this inquiry would impact the suit and the Consent Terms?
(i) In other words, when the lands were held to be Government lands and vest in the State Government so also the suit later on being dismissed, can all intervening transactions (deals and transactions during the pendency of the suit by the Khot) could have been relied upon to claim further rights in the property.
(j) If the lands retain their character as Government land/public property and could have been claimed only under the State by the parties to the transactions and deals, then, any order passed conferring or creating rights in the immoveable property in favour of the allottee can be considered as absolute?
(k) Can there be any order regularising the deals and transactions unconditionally, particularly in relation to Government lands/public property?
(l) Whether all orders claimed to be in favour of the private parties to this petition and parties claiming through them Page 96 of 99 suresh 908-PIL-127.2012.doc can be termed as legal and valid?
(m) Whether the terms and conditions of the orders including the Government Resolutions dated 28-6-2010 and 4-7-2011 and 13-7-2011 and binding on the parties have been complied with and if they are conditional, is there any proof furnished of compliance with the terms and conditions thereof?
(n) Whether the construction and development activities at the site and on the land carried out by M/s. Lodha Developers Limited are legal and valid?
(o) Whether the developers and builders have furnished proof of compliance with the terms and conditions of the order dated 28-6-2010 and further orders, particularly the one requiring prior approval and permission of the State Government and the Collector to dispose of the units/tenements in the buildings constructed at site?
(p) Whether the construction of commercial-cum-residential buildings has been permitted by the Competent Authorities and whether the user has been effected in accordance with the DCR of 1991?
67. These points or issues are not exhaustive and if any Page 97 of 99 suresh 908-PIL-127.2012.doc other point or issue relevant to the adjudication is necessary to be framed or considered, the above does not preclude or prohibit the Collector from framing and considering it.
68. We clarify that although we have not referred to the Salt Pan lands but the stand of the Central Government, as reflected in the affidavit filed in relation thereto, can definitely be noted and looked into by the Collector during the course of the inquiry to be conducted by him pursuant to our order and direction.
69. Any documents, including the affidavit filed by the Salt Commissionerate in this petition can also be looked into and taken note of by the Collector. We have clarified already that beyond noting the essential controversy and rejecting the objections of the respondents to the inquiry or their attempts to resist the prima facie conclusions, we have not expressed any opinion on the rival contentions. Our opinion is tentative and prima facie and our observations are made only to support our ultimate direction of holding an inquiry. We have found that the inquiry is absolutely necessary.
70. Therefore we direct that while issuing the notice and holding inquiries in pursuance therewith, the affidavits filed in this PIL and the contents thereof be ignored. The notice be adjudicated on its own merits uninfluenced by the contents of Page 98 of 99 suresh 908-PIL-127.2012.doc these affidavits. The notice be adjudicated strictly in accordance with law.
71. We direct that such notice be issued within a period of two (2) months from the date of communication of this order.
72. A compliance report after issuance of the notice shall be placed before this Court. We grant time to place such report. The report be placed within twelve (12) weeks from the date of issuance and service of the notice.
73. List, for compliance report, on 25-6-2020.
(R.I. CHAGLA, J.) (S.C. DHARMADHIKARI, J.)
Digitally signed
by SURESH
SURESH JAGDISH
SAJNAWAT
JAGDISH Date:
SAJNAWAT 2020.02.07
12:52:45
+0530
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