Bombay High Court
Mafatlal Industries Ltd vs /15 on 28 August, 2014
Author: Anoop V. Mohta
Bench: Anoop V. Mohta, A.S. Gadkari
ssm 1 wp-2500.13-Judgment.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2500 OF 2013
1 Mafatlal Industries Ltd.
(with which erstwhile Mafatlal
Fine Spinning & Manufacture
Company Limited is amalgamated)
through their Constituted Attorney
namely Eversmile Construction Co.
Pvt. Ltd., a Company registered under
Companies Act 1956, having their address
for purpose of the Petition as D.B. House,
Gen. A.K. Vaidya Marg, Goregaon (East),
Mumbai 400 063.
2 Eversmile Construction Co. Pvt. Ltd.,
a Company registered under Companies
Act 1956, having its registered office
at D.B. House, Gen. A.K. Vaidya Marg,
Goregaon (East), Mumbai-400 063.
3 Mrs. Sunita Goenka @ Bali,
Aged 52 years, Indian Citizen,
Inhabitant-Mumbai,
Shareholder & Director of Petitioner
No 1 abovenamed and having it's
regd. Office at D.B. House,
Gen. A.K. Vaidya Marg,
Goregaon (East),
Mumbai-400 063. ....Petitioners.
Vs.
1/15
::: Downloaded on - 28/08/2014 23:49:03 :::
ssm 2 wp-2500.13-Judgment.sxw
1 Municipal Corporation of Greater
Mumbai, a statutory corporation
having its office at Mahapalika
Bhavan, Mahapalika Marg,
Fort, Mumbai-400 001.
2 Municipal Commissioner,
having his office at 1st Floor,
Head office, Mahapalika
Bhavan, Mahapalika Marg,
Fort, Mumbai-400 001.
3 State of Maharashtra
Through Urban Development
Department Mantralaya,
Mumbai-400 032. ...Respondents.
Mr. Milind Sathe, Senior Advocate i/by Negandhi, Shah and
Himayatulla for the Petitioners.
Mr. S.U. Kamdar, Senior Advocate with Ms. A.R. Joshi for Respondent
Nos. 1 to 3.
CORAM : ANOOP V. MOHTA AND
A.S. GADKARI, JJ.
RESERVED ON : 25 AUGUST 2014.
PRONOUNCED ON : 28 AUGUST 2014.
JUDGMENT:- (PER ANOOP V. MOHTA, J.) Rule. Rule is made returnable forthwith.
Heard finally, by consent of the parties.
2/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 3 wp-2500.13-Judgment.sxw
2 The Petitioners, being the owner, Developer and
Constituted Attorney, have challenged impugned
communication/letters dated 5 March 2012 and 10 April 2013 issued by Respondents-Corporation, thereby revoked the Letter of Intent (for short, LOI) issued earlier and not considering the request for additional TDR against the construction of road.
3The relevant prayers of the Petitioners are as under:-
"(a) That this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to call for the records and proceedings pertaining to the subject matter and after examining the legality, validity and impropriety of the impugned Letters dated 5.3.2012 (Ex. B and B-1 hereto) and impugned letter dated 10th April 2013 (Ex. C hereto), be pleased to quash and set aside the same, being invalid and illegal and ultra vires;
(b) That this Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction to the Respondent No. 1 & 2 to issue to Petitioners the DRC for 100% of Amenity TDR as per law in force in respect of construction of 13.40 meter wide D.P. Road as per Letters of Intent both dated 6.2.2008 bearing Ref No TDR/ES/MW-44/Addl. MW 6 Rd in respect of CTS No. 2/3 and ref. no. TDR/ES/MW-44 /Addl.
MW-6 Rd in respect of CTS No. 2/6 for which the 3/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 4 wp-2500.13-Judgment.sxw work is completed;"
4 Petitioner No.1 is absolutely seized and possessed of certain pieces of land at Village Mahul, near Chembur Taluka, including lands bearing CTS No. 2/3 (pt) and CTS No. 2/6 admeasuring 5360.00 and 3843.00 sq. meters respectively (for short, "the said land").5
On 9 April 1996, Respondent No.1 issued circular stipulating that additional TDR would be given for 15% of the area of Development Plan Roads constructed/developed. Various Petitions challenging the same were filed before this Court including Writ Petition No. 845 of 1998 (the Judgment whereunder was subsequently impugned before the Supreme Court in Civil Appeal No. 1592 of 2007). On 1 October 1997, Petitioner No.1 entered into a Development Agreement with Petitioner No.2, granting thereby Petitioner No.2-Authority to develop, on "as is where is basis", the immovable property described therein, pursuant to which, Petitioner No.2 is constructing on parts of the larger property tenements with the approval of the Slum Rehabilitation Authority (for short, "SRA"), which are to be handed over to Respondent No.1 under the provisions 4/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 5 wp-2500.13-Judgment.sxw of the Development Control Regulations for Greater Mumbai, 1991.
(for short, "DCR"). On 9 November 2006, the SRA issued LOI, principally approving the implementation of the proposed Slum Rehabilitation Scheme (for short "the project") and specifying certain stipulations in respect of handing-over to Respondent No.1. The said LOI was subsequently revised, entitling Respondent No.2 to complete the project on the terms and conditions as set out therein and further entitling Petitioner No.2 to Land TDRs of approximately 1,47,169.50 sq. mtrs and construction TDRs which would be issued by SRA/Respondent No.1 in the form of DRCs. The said land was reserved for public amenity in the Development Plan prepared under the MRTP Act. Under the provisions of the DCR, the owner/lessee of a plot of land which is reserved for an amenity/public purpose in the Development Plan is eligible for the award of TDRs in the form of FSIs equal to the gross area of the reserved plot surrendered under DCR, Appendix VII(5) and equivalent to the area of the construction/development done by him if he also develops or constructs the amenity on the surrendered plot at his cost, under DCR Appendix VII (6). Petitioner No. 2 has duly surrendered the said land covered by Development Plan Roads to Respondent No.1 and was 5/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 6 wp-2500.13-Judgment.sxw given TDR equivalent to the area of the said land in terms of Appendix VII (5).
6 In the month of December 2005, the Petitioner applied to the Municipal Commissioner for permission for Development Right Certificate under Regulation No. 34 read with Appendix No. VII (6) of the DCR for the issuance of Amenity TDR in lieu of constructing road at their expenses. In the month of February 2008, in response thereto, Respondent No.1 issued two LOIs informing the Petitioners that their request for grant of additional TDR in lieu of construction of road would be considered on the compliance of certain requirements involving various Departments and their completion certificates and directing the said Departments to furnish pro rata charges/detailed specifications.
7 On 6 February 2009, in the meanwhile, the Supreme Court allowed the Civil Appeal. On 21 February 2011, the Petitioners addressed a letter to the Executive Engineer (DP) E.S., inter alia intimating him to the compliance of the requirements specified under the aforesaid LOIs and making a request for processing the grant of 6/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 7 wp-2500.13-Judgment.sxw 100% additional TDR in respect of the said land in light of the aforesaid judgment of the Supreme Court. On 24 February 2011, in reply to the aforesaid letter, Respondent No.1, inspite of the aforesaid Supreme Court Judgment and contrary thereto and also contrary to DCR 34, informed the Petitioners that the request for grant of 100% TDR/FSI of DP Road cannot be considered, as the LOI was issued in terms of circular dated 5 May 2004 (which stipulates that additional TDR would be given for 25% of the area of Development Plan Roads constructed/developed) and also informed them that the DCR wold be issued on completion of all conditions of the said LOI. On 29 March 2011, aggrieved by Respondents' reply, the Petitioners filed a Writ Petition No. 595 of 2011 before this Court. By order dated 29 March 2011 inter-alia setting aside letter dated 24 February 2011 issued by the Respondents and directed the authority to reconsider the application submitted by the Petitioners in accordance with law, including the judgment of the Supreme Court in the matter of Godrej & Boyce Manufacturing Company Limited Vs. State of Maharashtra & Ors. 1 .
1 (2009) 5 SCC 24
7/15
::: Downloaded on - 28/08/2014 23:49:03 :::
ssm 8 wp-2500.13-Judgment.sxw
8 On 5 March 2012, by two separate letters, Respondent
Nos. 1 and 2 informed the Petitioners that as the conditions of LOIs dated 6 February 2008 for construction of 13.40 meter wide D.P. Road on plot bearing CTS No. 2/6 and CTS No. 2/3, in lieu of additional 25% TDR is not complied with and therefore the LOI was revoked and the said 13.4 DP Road will not be constructed by Respondent-
Corporation. Accordingly, the request of the Petitioners for TDR against construction of Road was not considered. On 6 April 2012, the Petitioners addressed a letter to the Respondents recording some of the aforesaid facts and informed the Respondents that all the terms and conditions of both the LOIs were complied with by the Petitioners and all the supporting documents were forwarded to the Respondents.
Accordingly, it was requested to withdraw letter dated 5 March 2013 and issue 100% amenity TDR as per law and in terms of the order of this Court. On 9 April 2012, various documents were obtained under RTI, which revealed that even the then Municipal Commissioner made an endorsement on the Petitioners' letter dated 6 April 2012 that TDR can be given if the Corporation asked them to develop the amenity for the Corporation. On 5 May 2012, the Legal Department of the Corporation after considering the decision of the then Municipal 8/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 9 wp-2500.13-Judgment.sxw Commissioner and the facts that LOI were issue and the amenity work was already constructed and the Tar Surfacing also already completed which was pending due to SRA Scheme of adjoining plot, confirmed that the Developer has already acted upon the LOI. The Legal Department reiterated that the issue of additional TDR of 100% or 25% is already directed to be decided as per law in force and the Supreme Court Judgment. The Legal Department also confirmed to Respondent Nos.1 and 2 that LOI cannot be refused unilaterally.
9 On 19 May 2012, a further report was put up to the then Municipal Commissioner with complete facts and the opinion of the Legal Department and the EEDP (ES) once again recommended issue of 100% TDR. On 5 June 2012, it appears that in the meanwhile, the then Municipal Commissioner had retired and the present Municipal Commissioner took charge the present Municipal Commissioner put remarks "Please discuss". On 10 April 2013, the Respondents through its Chief Engineer informed Petitioner No.2 that pursuant to order dated 29 March 2011 passed by this Court in Writ Petition No. 595 of 2011, the Petitioners had not approached the office of the Chief Engineer DP till 5 March 2012 by completing the construction of Road 9/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 10 wp-2500.13-Judgment.sxw in all respects and hence having failed to construct the road and comply with the conditions of LOIs for a period of four years, the LOIs were revoked by the Corporation by letter dated 5 March 2012 and the request of the Petitioners (by letter dated 6 April 2012) to recall and withdraw the decision conveyed by letter dated 5 March 2012 and to grant 100% amenity TDR, cannot be considered. Hence, the present Petition.
10The learned Senior counsel appearing for the Corporation, basically contended that once the LOI has cancelled/revoked, the work done by the Petitioners was unauthorized though there is no dispute with regard to the compliances made by the Petitioners based upon LOIs dated 6 February 2008. The Petitioners' entitlement just cannot be denied once it is established and there are documents on record to show that the Petitioners completed their work as required and accordingly handed over the site to the Respondents' Officers.
There are acknowledgement to that effect on record. No dispute with regard to the said compliances, which are as under:-
a) H.E.'s remarks are granted on 7 October 2008 and work has 10/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 11 wp-2500.13-Judgment.sxw already been completed. The sanction under Section 270 A of the BMC Act is obtained. Part certification done by the Corporation on 10 December 2009 and thereafter full certification don on 25 February 2010.
b) Amount of Rs.57,09,780/- already paid towards pro rata charges for laying sewers and receipt for the same is issued on 20 April 2007.
c) SWD is constructed along with the DP roads bearing CTS No. 2/6 as per the SWD remarks dated 24 December 1999 and part completion certificates were issued on 2 December 2003 and 21 April 2010 and thereafter completion certificate issued on 15 March 2012.
d) Full completion certificate for construction of 13.40 mt. Wide DP Roads and their junction, 6.00 mt. and 9.00 mt. Wide internal access roads issued on 29 March 2012 referring to the latest layout approval dated 29 February 2012 which is issued only after DP Roads are constructed.
e) Letter of the Corporation specifying details of street lighting issued on 26 August 2009. The receipts for payments of pro rata charges issued on 21 July 2004 and 24 June 2010.
11/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 12 wp-2500.13-Judgment.sxw
11 The reply, contentions and the reasons so given by the
Respondents-Corporation to oppose the prayers so made in the present Petition, therefore, unacceptable. The Respondents are bound by the letters of their officers having powers to do so. Internal non-communication, even if any, as sought to be contended with regard to the knowledge of revocation of LOI which, in our view, is wrongly invoked, which cannot be the basis to deny the entitlement based upon the provisions of law so declared by the Hon'ble Supreme Court in Godrej & Boyce (Supra) and in the following cases:-
a) Municipal Corporation of Greater Bombay & Anr.
Vs. Yeshwant Jagannath Vaity & Ors. 2
b) Natvar Parikh & Co. Pvt. Ltd. Vs. The State of Maharashtra & Ors. 3 12 The Submissions of delay, latches and the non-compliances within time, as sought to be contended, are also unacceptable as the Respondents themselves granted the relevant Completion Certificate 2 (2011) 11 SCC 88 3 Writ Petition No. 451 of 2010 dated 22 April 2014 (this Court) 12/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 13 wp-2500.13-Judgment.sxw and after due measurements at the relevant point of time. As recorded, there is no denial to the work done by the Petitioners in pursuance to the LOI, therefore, there is no case to refuse the prayers so made by the Petitioners as they have completed the work and the Respondents have already taken possession of the same. The project in question is also completed.
13 The aspect of order dated 29 March 2011 passed by this Court to decide the validity of LOI within 15 days and so also 100% entitlement of TDR, just cannot be overlooked. The Respondents are bound by the same. Therefore, the revocation or revival of the LOI already granted, which was not the subject matter of the earlier order passed by this Court and/or at least there is no such issue raised in this regard at that time, the Respondents, therefore, in a way passed and taken action of revocation of LOI contrary to the said order itself, which is impermissible and cannot be accepted. Once this Court has passed the order and directed the Respondents to consider the case in accordance with law, as referred above, there is no question of passing such order by invoking the LOI as done in the present case.
13/15 ::: Downloaded on - 28/08/2014 23:49:03 ::: ssm 14 wp-2500.13-Judgment.sxw
14 As the Petitioners have completed the work as per the LOI
and the Respondents have recorded the same, and factually the possession of the same has been already handed over, the submission referring to revocation of LOI, in view of above, just cannot be the reason to deny the entitlement of the Petitioners based upon the law laid down by the Courts, as recorded above. The issue with regard to the revocation of LOI in view of above reasons and in the fact that the Respondents never objected, and in fact, permitted the Petitioners to complete the work and accordingly endorsed and issued a relevant certificate, just cannot be permitted to raise such reply in the Writ Petition.
15 This Court has already observed in Natvar Parikh & Co.
Pvt. Ltd. (Supra) as under:-
10 The Respondent-Corporation, in view of above, is under obligation to grant the benefits/reliefs as prayed having once factually completed requisite formalities by the Petitioner for the same. In our view, the issue in the present case, therefore, stand concluded in favour of the Petitioner as reiterated even by the Judgment (supra) which further followed and approved in The Municipal Corporation of Greater Bombay & Anr. Vs. Yeshwant Jagannath Vaity & Ors. "for other amenity" also. Therefore, the Petitioner is entitled for the reliefs as prayed."14/15 ::: Downloaded on - 28/08/2014 23:49:03 :::
ssm 15 wp-2500.13-Judgment.sxw
16 Therefore, taking over all view of the matter and in view
of the above observations made in Natvar Parikh & Co. Pvt. Ltd.
(Supra), the Petition is allowed in terms of prayer clauses (a) and (b).
17 There shall be no order as to costs.
(A.S. GADKARI, J.) ig (ANOOP V. MOHTA, J.)
15/15
::: Downloaded on - 28/08/2014 23:49:03 :::