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The Co-operative Societies Act, 1912
The Societies Registration Act, 1860
The Indian Trusts Act, 1882
Article 226 in The Constitution Of India 1949
The Companies Act, 1956

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View the actual judgment from court
Bombay High Court
Mumbai 400 049 vs Ou on 12 November, 2009
Bench: A.M. Khanwilkar

: 1 :

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt

WRIT PETITION NO.731 OF 2009

ou

1. Maharashtra Housing Board Low Income Group Tenements

Housing Societies Federation,

C

registered under Societies

Registration Act, 1960 and the

Bombay Public Trusts Act, 1950,

having its office at Pump House, LIG Colony, Samarth Ramdas Marg, h

JVPD Scheme, Mumbai 400 049

through its President Shri Vishwanth ig

Pundalik Devmane.

2. Vishwanth Pundalik Devmane,

H

And adult Indian inhabitant,

aged 58 years, having his address at 1/11, Jyoti Sadan, 6th Cross

Gulmohar Road, JVPD Scheme,

y

Mumbai 400 049. ...Petitioners ba

Versus

1. The State of Maharashtra

through the Ministry of Housing

om

and the Ministry of Urban

Development to be served

Through the Government

Pleader, High Court, Mumbai.

B

2. The Maharashtra Housing Area

Development Authority,

a statutory body incorporated

under the provisions of the

Maharashtra Housing Area

Development Act, 1976 having

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its Office at Griha Nirman Bhavan, Kala Nagar, Bandra(E),

rt

Mumbai 400 050.

ou

3(a) The Vice President

The Maharashtra Housing and

Area Development Authority, an

Officer of Respondent No.2

C

having his office at Griha Nirman Bhavan, Kala Nagar, Bandra(E),

Mumbai 400 050.

3(b) The Chief Officer, Mumbai Mandal h

The Maharashtra Housing and

Area Development Authority, an

ig

Officer of Respondent No.2

having his office at Griha Nirman Bhavan, Kala Nagar, Bandra(E),

H

Mumbai 400 050.

4. The Municipal Corporation of

Greater Mumbai.

y

A Statutory Body, incorporated

under Bombay Municipal

ba

Corporation Act, having its office at Mahapalika Building,

Mahapalika Marg, C.S.T.

Mumbai 400 001.

om

5. Juhu Harshal Co-operative

Housing Society Limited,

a Society registered

B

under Maharashtra Co-operative

Societies Act, 1960 and having it's Office at 8, Juhu Harshal, Swami Samarth, Ramdas Marg, JVPD

Scheme, Mumbai 400 049.

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6. Tanna Housing Private Ltd.

A Company incorporated under

rt

the Companies Act, 1956 having

its address at 109/110, Super

ou

Shopping Complex, Bajaj X Road,

Kandivali(West),

Mumbai 400 067.

C

7. Tushar-Bindu Co-operative

Housing Society Ltd.

a Society registered

Under Maharashtra Co-operative

Societies Act, 1960 and

h

having it's Office at Bldg.No.5, Plot No.287, JVPD Scheme,

ig

Gulmohur X Road No.9, Juhu,

Mumbai 400 049.

H

8. Swati Mitra Co-operative

Housing Society Ltd.

a Society registered

Under Maharashtra Co-operative

y

Societies Act, 1960 and

having it's Office at Bldg.No.7, ba

JVPD Scheme, Vile Parle(E),

Mumbai 400 049.

9. Lalit-Kutir Co-operative

om

Housing Society Ltd.

a Society registered

Under Maharashtra Co-operative

Societies Act, 1960 and

B

having it's Office at Building

No.9, J.V.P.D.Scheme,

Gulmohur X Road No.9,

Juhu, Mumbai-400 049. ..Respondents. ......

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Mr.P.K.Samdani, Sr.Counsel with Mr.Sanjay Jain i/b Vinod Mistry & Co. for Petitioners.

rt

Mr.G.W.Mattos, A.G.P. for State. ou

Mr.Nitin Thakkar i/b Mr.K.N.Damania for Respondent No.5. Mr.M.P.Rao with Mr.G.C.Mohanty for Respondent No. 6. C

......

CORAM : SWATANTER KUMAR, C.J. AND A.M.KHANWILKAR, J.

h

JUDGMENT RESERVED ON : 2ND SEPTEMBER, 2009. JUDGMENT PRONOUNCED ON : 12TH NOVEMBER, 2009. ig

JUDGMENT (PER KHANWILKAR, J.) :

H

1. Heard Counsel for the parties. y

2. Rule. Rule made returnable forthwith. Counsel waive service for ba

respective Respondents.

3. By this Writ Petition under Article 226 of Constitution of India, the om

Petitioners have questioned the validity of allotment of a portion from the larger property bearing Survey No.287, C.T.S. No.19 at Juhu Vile Parle B

Development Scheme (JVPD Scheme), which is described as Pump Station House, Water Tank and Garden in favour of Respondent No.5. The Petitioners have further prayed for direction against Respondents 2 and 4 to ::: Downloaded on - 09/06/2013 15:18:21 ::: : 5 :

demolish and ensure demolition of all construction carried on by rt

Respondent No.5 and/or 6 on the disputed property and/or by utilising the ou

FSI or the TDR Potential or any other benefits in respect of the disputed property. The Petitioners have further prayed for writ of mandamus to direct C

Respondents 1 to 6 not to interfere with the peaceful use, occupation possession and management of the disputed property by Petitioner No.1 in any manner and in the event, it is held that Respondents 5 or 6 or anyone or h

more of them are in possession of any part of the said property then direct ig

Respondents 1 to 6 to hand over possession thereof to Petitioner No.1 H

forthwith.

y

4. The case made out by the Petitioners in the Writ Petition is that 14 ba

multi-storied buildings were constructed on the larger property for the benefit of persons belonging to low-income group comprising of 280 flats. om

The said flats were offered for purchase to Co-operative Societies and the Buildings were transferred to the Co-operative Societies on ownership and B

the land underneath and appurtenant to the said buildings was leased to the Co-operative Societies by the predecessor of Respondent No.2. The layout of the buildings provided for wide open roads and adequate open space with a big playground as per the layout represented to the members of the ::: Downloaded on - 09/06/2013 15:18:21 ::: : 6 :

Cooperative Societies. It is the case of the Petitioners that the Petitioner rt

No.1 Society which is registered under the Societies Registration Act, 1960 ou

as well as the Bombay Public Trust Act, 1950 is a Federation of 9 Cooperative Housing Societies to whom the 14 buildings were transferred C

by the Authorities upon execution of independent Lease Deeds in respect of plots of land on the larger property. Further, Sale Deeds in favour of each of the 9 Cooperative Societies were executed in respect of the buildings h

constructed on the respective plots of land leased out to them. It is the case ig

of the Petitioners that all the said 9 Cooperative Societies which are lessees H

of the land and owners of the respective buildings on the larger property together formed a Federation i.e. Petitioner No.1. As per the layout, portion y

of the larger property admeasuring 663.50 sq. mtrs. was earmarked for ba

Pump Station, Water Tank, and Garden, which facilities were common to all the 14 buildings. The said portion of plot was meant for the common use om

and enjoyment of all the occupants of all the 14 buildings on the larger property and that it was being so used continuously and uninterruptedly for B

the past 30 years. It is the specific case of the Petitioners that the said portion of the larger property was handed over to the Petitioner No.1 Federation for the Management of the common facilities of pump station, water tank and public garden as back as in 1984 and the same were in use, ::: Downloaded on - 09/06/2013 15:18:21 ::: : 7 :

occupation and possession of the Petitioners since then. According to the rt

Petitioners, the Respondent No.5, a member Society of the Petitioner No.1 ou

who intended to redevelop/reconstruct Building No.8 fraudulently and dishonestly included the said portion of the larger property in its proposal C

for redevelopment and persuaded the Authorities to allot the said plot to enable the Respondent No.5 to develop and enjoy the same along with the land underneath building No.8 which was to be redeveloped. This was h

done notwithstanding the fact that the portion of the larger property which ig

was in common use was already in possession of the Petitioner No.1 H

Federation and the same was being used and meant to be used for common use of all the members of the Petitioner Federation. The No Objection y

Certificate and execution of Supplementary Lease Deed in favour of ba

Respondent No.5 was without the consent and/or concurrence of the Petitioner No.1 Federation and it was an unilateral action on the basis of om

false and fraudulent representation by Respondent No.5. Besides, the allotment of plot was contrary to the policy of the Corporation and the B

Maharashtra Housing Area Development Authority (MHADA). Moreover, the Respondent No.2 had no authority to allot the subject plot by colourable exercise of dividing the same into two parts and illegally describing the same as Tit-Bit (TB) or Neither Tit-bit Nor Independently Buildable (NTB ::: Downloaded on - 09/06/2013 15:18:21 ::: : 8 :

NIB) lands. According to the Petitioners, the common areas of larger rt

property cannot be allotted to an individual Society and more so, without ou

inviting the Petitioner No.1 Federation or other Societies to make offers of allotment of the said property. It is also alleged that the said allotment in C

favour of Respondent No.5 was by ignoring the offers made by the Petitioners and that too at ridiculously low and throw away price. Essentially, the grievance is that the disputed property was in use, h

possession and occupation of the Petitioners as common facility for all the ig

14 buildings and its occupants, for which reason, the same could not have H

been allotted to Respondent No.5-an individual society. Moreover, the allotment was not in accordance with law. This is the broad challenge on the y

basis of which Petitioners have sought reliefs as referred to earlier. ba

5. The Respondents 7 and 9 who are incidentally members of the om

Petitioner No.1 Federation have filed their reply affidavit, more or less adopting the grievance made by the Petitioners in the Writ Petition. Both B

these Respondents although have filed separate affidavits have taken virtually the same stand. According to them, the pump station and water tank was handed over to the Petitioner Federation on 15th October 1980 for maintenance and management of common services such as supply of water ::: Downloaded on - 09/06/2013 15:18:21 ::: : 9 :

to all the 14 buildings and also for maintaining the pump house. They have rt

further stated that the pump house and water tank is situated on the disputed ou

plot along with the garden and the said garden has been in common use and enjoyment of the members and occupants of the buildings belonging to the C

respective Respondents and the said property is being used for various recreational and cultural activities for past 30 years. According to these Respondents, the disputed plot has been maintained and managed by the h

Petitioner Federation for the common benefit of all the member Societies of ig

the Petitioner. Even these Respondents have made grievance that the H

Respondent No.5 have encroached upon the disputed plot and the allotment of the said plot to Respondent No.5 was illegal. It is further stated by them y

that even the said Respondents were entitled to receive proportionate equal ba

share and/or benefit arising out of the said plot along with other Societies. om

6. The Official Respondents 2, 3(a) and 3(b) have opposed this Writ Petition. In the reply affidavit sworn by Kamlakar Dagdu Survade, Assistant B

Land Manager, Andheri Taluka, Mumbai Housing and Area Development Board, a regional unit of MHADA dated 28th April 2009 and additional affidavit dated 28th July 2009, it is stated that the challenge in the Writ Petition is devoid of merits. In the first place, it would involve disputed ::: Downloaded on - 09/06/2013 15:18:21 ::: : 10 :

questions of facts which cannot be adjudicated in exercise of writ rt

jurisdiction. Even on merits, the basis on which the Petitioners have ou

maintained their challenge, is on erroneous assumption and wrong premiss. At the outset, it is pointed out that the Petitioner No.1 Federation is now C

rendered defunct in view of the fact that 10 Cooperative Housing Societies (comprising of 12 buildings) out of 12 Cooperative Societies (comprising of 14 buildings) in the part layout have obtained N.O.C. from Respondent No. h

3(b) to undertake redevelopment of their buildings and have already made ig

arrangements for their independent water connection. The Official H

Respondents have denied that the low income group housing scheme for construction of 14 multi-storied buildings was undertaken in consultation y

with the World Bank or that any financial aid was received from the World ba

Bank therefor as alleged. It is stated that the Scheme was implemented as early as in 1960 and the same was completed in mid 1970; whereas, the om

World Bank had funded some of the projects of the Respondent No.2 in the year 1984-85. It is clearly stated that JVPD Scheme was not one of the B

Housing Schemes funded by the World Bank. The Official Respondents have categorically denied that the plot on which water tank and pump house is situated was "handed over" to the Petitioner Federation or that the Petitioner Federation has acquired any right, title or interest therein. ::: Downloaded on - 09/06/2013 15:18:21 ::: : 11 :

According to the Official Respondents, in a part of the said part layout, the rt

12 Cooperative Housing Societies had a common underground water tank ou

and a water pump house. Through the said underground water tank and pump house, water was supplied to the 12 Cooperative Housing Societies. C

It is further stated on affidavit that the portion of the plot on which water tank and pump house is situated is plot adjacent to the building premises of the Respondent No.5. It was NTB NIB plot. It is stated that the ownership h

of the said plot vested in Respondent No.2. Further, the plot was not a ig

garden plot, as is falsely alleged by the Petitioners but is actually plot which H

is NTB NIB plot. The official Respondents have asserted that the layout has been approved by the Corporation as per the Development Control Rules on y

15th October 1999 which do not describe the disputed property as reserved ba

for garden. The approval of the said layout which was done by following due process of law has been allowed to become final. Considering all these om

aspects, the portion of the larger property was allotted to Respondent No.5 on certain conditions in two trenches, which allotment was in conformity B

with the relevant Rules and Regulations and in particular, in consonance with Resolution Nos.5998 and 6041 passed by the Respondent No.2. The portion of plot other than the plot on which water tank and pump house was situated was first allotted to the Respondent No.5 by way of Supplementary ::: Downloaded on - 09/06/2013 15:18:21 ::: : 12 :

Lease Deed dated 13th August 2007 as it was NTB NIB plot. While the rt

request of Respondent No.5 for allotment of the said plot was pending, ou

another application was received from Respondent No.5 on 19th June 2007 and 25th November 2007 which was duly considered and eventually offer C

letter was issued on 12th February 2008 in respect of the TB plot comprising of underground water tank and pump house. The allotment was in consonance with the modified Resolution pertaining to the rates to be h

charged by Respondent No.2 in respect of the said land, which was decided ig

vide its Resolution No.6260 dated 4th June 2007 passed by Respondent H

No.2. The affidavit further records that the Respondent No.5 paid the amount in installments in terms of the offer letter and has been allotted the y

said plot on terms and conditions specified in the letter of allotment. In ba

substance, the stand of the Official Respondents is that the ownership of the disputed property vests with the Respondent No.2 and that neither the om

Petitioner Federation nor any other Society can claim any right therein. Reliance is placed on Clause 5 of the Sale Deed, executed in favour of the B

individual Cooperative Housing Societies, which in turn stipulates that the Society expressly agrees that the land underneath and appurtenant to the said building is and continues to be property of the Authority and that the Society has no right, title or interest in the said land except the rights ::: Downloaded on - 09/06/2013 15:18:21 ::: : 13 :

reserved under a separate Lease in respect of such land to be executed rt

between the Authority and the Society. Moreover, the allotment of land in ou

favour of Respondent No.5 was in conformity with the extant policy and the relevant Resolutions passed by Respondent No.2. C

7. The Respondent No.5 and Respondent No.6 have also filed independent affidavits. The Respondent No.6 is essentially claiming h

through Respondent No.5, who has been appointed by the Respondent No.5 ig

to redevelop the property belonging to the Respondent No.5 Society. These H

Respondents have additionally placed on record that there are two more Societies being Jeevan CHSL (Building No.7) and Natraj CHSL (Building y

No.9) adjacent to the disputed plot who have intentionally not been made ba

parties to the present Petition. According to these Respondents, the other Societies adjacent to the disputed plot have already redeveloped their om

respective properties. These Respondents have denied that Respondent No.9 Society is adjacent to the said property. Moreover, Respondent No.7 has B

already redeveloped the Society's main building and also constructed a separate building for free sale on the TB land alloted to it. Similarly, Respondent No.8 has also redeveloped their building. These crucial facts have not been mentioned in the Writ Petition. These Respondents have ::: Downloaded on - 09/06/2013 15:18:21 ::: : 14 :

placed on record that as per the approved layout (as approved by the rt

Corporation) on 15th October 1999. It provides a big playground elsewhere. ou

As aforesaid, all the four Societies Tushar-Bindu CHSL-Respondent No.7, Swati Mitra CHSL-Respondent No.8, Jeevan CHSL and Natraj CHSL, C

Building Nos.5,6, 7 and 9 respectively close to the disputed land have already carried out their redevelopment work with the necessary NOC for the same with the TB land in their possession. These Respondents have h

asserted that the allotment of disputed land in its favour is not only after ig

following necessary procedure and in consonance with the relevant rules H

and regulations but also with clear condition that the Respondent No.5 shall be bound to provide water pump and water tank for supply of water to the y

buildings which are not developed and do not have independent water tank ba

so far, so long as they are dependent on the said facility. The Respondent No.5 has given undertaking to abide by the said condition, besides paying om

substantial amount for allotment of the disputed land. These Respondents have also relied on Clause 5 of the Sale Deeds executed in favour of each of B

the Cooperative Housing Society to assert that none of the Societies nor the Federation has any right, title and interest in the disputed property. Further, the Petitioner No.1 Federation was given responsibility "only of maintenance" of pump house and water tank which was to be used as ::: Downloaded on - 09/06/2013 15:18:21 ::: : 15 :

common facility for all the 14 buildings. The land was never transferred to rt

the Petitioners as is sought to be represented. Even these Respondents have ou

contended that the Petition is devoid of merits and the same deserves to be dismissed being filed with ulterior purpose merely to harass the Respondent C

No.5. The Respondent No.6 has placed on record that he has acted upon the Agreement executed in his favour by the Respondent No.5 to redevelop the property of the Respondent No.5 including the disputed property now h

allotted to Respondent No.5 by the Respondent No.2. He has incurred ig

substantial expenditure for the redevelopment work to the extent of over Rs. H

10 crores. Moreover, the construction of the building was at advanced stage. It has reached up to 6th floor. The said Respondents have supported the y

opinion of the Chief Officer in the order passed by him on 11th February ba

2009 after hearing all concerned, which takes the view that it was legitimate for Respondent No.2 to allot the disputed property to Respondent om

No.5 as the same was in consonance with the policy and after following due process. The Chief Officer has rejected the argument of the Petitioners B

by clearly recording the concession of the Petitioners' representative that no Lease Deed has been executed in between the Federation and MHADA in respect of the disputed land. Besides, there was no tangible record to even remotely suggest that the disputed plot was in fact handed over to the ::: Downloaded on - 09/06/2013 15:18:21 ::: : 16 :

Petitioner Federation. On the other hand, the Chief Officer has found that as rt

per the approved layout, the plot was not reserved for garden and portion of ou

the plot was NTB NIB and the plot on which water pump and underground water tank was located, was a TB plot. C

8. Having considered the rival submissions, the first question that needs to be addressed is: whether the Petitioners or any other Society have any h

right in respect of the portion of the larger property which is the disputed ig

property now allotted to Respondent No.5. The Petition proceeds on the H

assertion that the disputed plot was in fact handed over to the Petitioner Federation and the same was in use, occupation and enjoyment of the y

Petitioner Federation uninterruptedly for last over 30 years. In support of ba

this plea, the Petitioners are not in a position to produce any document which would indicate that the disputed property in fact stood transferred to om

the Petitioner Federation by the Authority. As mentioned earlier, even before the Chief Officer, it was conceded by the representative of the B

Petitioner Federation, as is recorded in Paragraph 8.1 of the order dated 4th February 2009, that there is no documentary and contemporaneous evidence to establish that possession of the portion of disputed property was handed over to the Petitioners. Even the documents executed in favour of the ::: Downloaded on - 09/06/2013 15:18:21 ::: : 17 :

respective Societies as well as individual members, in no way, support the rt

stand of the Petitioners that the disputed property was under the control of ou

the Petitioner Federation as such. The Petitioners have relied on Clause (7) of the Sale Deed between Respondent No.2 and the Cooperative Societies. C

However, the said Clause merely provides that the common services other than that of street lights but not including the pump stations and the water tank have been handed over on 15th October 1980 by the Authority to the h

Federation of Co-operative Societies formed by the Cooperative Societies in ig

the Scheme area. This Clause merely refers to handing over of pump H

stations and water tank to the Petitioner Federation by the Authority. That is of no avail to the Petitioners. The Petitioners have then pressed into service y

communication dated 9th May 1984 sent under the signature of Executive ba

Engineer of Housing Board to the Assistant Engineer Water Works. The same reads thus:

om

"BOMBAY HOUSING & AREA DEVELOPMENT BORARD Phone : 538331

536411

B

Griha Nirman Bhavan,

Bandra (East),

Bombay - 400 051.

CB/IT/683 OF 1984 Date : 9-5-84 ::: Downloaded on - 09/06/2013 15:18:21 ::: : 18 :

To,

rt

The Asstt.Engineer,

Water Works (K-West Ward),

Andheri (West),

ou

Bombay.

Sub : Transfer the water meter in the name of M.H.B. L.I.G. Tenants Housing Society Federation. ----------------------------------------------------------------- C

Sir,

Adverting to the above I have to inform you the the 280 Ts.under L.I.G. h

J.V.P.D. Pump House, had been handed over to the above Society w.e.f. 15.10.1980. ig

You are therefore requested to please transfer the water connection No.Kw-433-0004 for the above tenants in the name of M.H.B. LIG, Tenants H

Housing Society Federation immediately. Yours faithfully,

Sd/-

F.Executive Engineer

y

Housing Maintenance Division

Bombay

ba

Copy forwarded with compliments to the Vice President LIG Ts.Housing Society Federation Samarth Ramdas Marg, J.V.P.D. Scheme water pump house, L.I.G. Colony, Bombay-400 048 for favour of information." om

Even on liberal construction of this communication, it is not possible to sustain the plea taken by the Petitioners that an inference be drawn that B

the disputed property was in possession and control of the Petitioners. Reliance is also placed on other communications at Exhibit H and Exhibit I. These communications are between the Secretary of Juhu Harshal CHSL ::: Downloaded on - 09/06/2013 15:18:21 ::: : 19 :

and the President/Secretary of the Petitioner Federation pertaining to rt

shifting of water meter located in their compound. Much emphasis was ou

placed on communication dated 28th June 2007 Exhibit J issued under the signature of Chief Officer of the Board to the Secretary of Lalit Kutir C

CHSL. The same reads thus:

"Mumbai Housing And Area

Development Board

h

(A MHADA Unit) MHADA, ig No.AEM/M.B./JVPD/Lalit Kutir/3154/Land-Breach/07

Date 28.06.07.

To,

H

Secretary,

Lalit Kutir Co-op.Housing Society (Ltd.) B.No.10, Vile Parle, Juhu Scheme, Mumbai 400 049.

y

Sub : Regarding Plot besides building of your Society at JVPD. ba

Ref : Your letter dated 06.12.04. Sir,

om

You are being informed with regard to referenced letter on aforesaid subject that, plot beside your Co-op. Housing Society will not be sold to you. Also, as per resolution of MHADA, said plot will not be sold even in future. Said plot is being kept reserved for entertainment ground for resident of buildings of surrounding and kindly take note of this. B

Sd/-

Chief Officer, Mumbai Board."

In the first place, the official Respondents in affidavit have explained ::: Downloaded on - 09/06/2013 15:18:21 ::: : 20 :

the circumstances in which this communication has been issued. Suffice it rt

to observe that this communication will be of no avail to answer the point in ou

issue as to whether the disputed property was handed over to the Petitioner Federation or for that matter, any other member Society. This C

communication merely records the assurance that the plot will not be sold even in future and will be reserved for entertainment ground for residents of buildings of surrounding colony. As aforesaid, the official Respondents in h

the affidavit filed have clearly stated that the fact recorded in this ig

communication that the plot is reserved for entertainment ground is a H

clerical error and recorded under mistaken belief. In that, the approved layout plan does not make any provision for reservation for play ground of y

the disputed plot.

ba

9. Be that as it may, there is no contemporaneous record to even om

remotely suggest that the disputed plot was in fact handed over to the Petitioners or any other member society. The terms in the Lease Deed and B

the Sale Deed pressed into service by the parties, however, would indicate that only the management of water pump and water tank was given to the Petitioner Federation. The ownership of the disputed property always remained with the Respondent No.2 with full authority to deal with the ::: Downloaded on - 09/06/2013 15:18:21 ::: : 21 :

same in accordance with law. Indeed, the plans which have been produced rt

by the Petitioners along with the Writ Petition do indicate that the disputed ou

property was mentioned as garden; but as aforesaid, the official Respondents have produced the approved layout plan which clearly answers C

the claim of the Petitioners. After the approved layout plan was issued in October 1999, there was no reservation against the disputed property. Considering the above position, it necessarily follows that the authorities h

were competent to deal with the said property in accordance with law. ig

H

10. The next question is: whether the Petitioners or for that matter other Societies ought to have been given notice about the proposed allotment of y

disputed land to the Respondent No.5. The Petitioners have conceded that ba

the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 om

(hereinafter referred to as the `MOFA') are not applicable to Respondent No.2 but have asserted that the Respondent No.2 being an institution of B

State was obliged to observe the principles underlying the said enactment. This contention can be answered in two ways. Firstly, since the Petitioners concede that provisions of MOFA are not applicable to the property in question, it may not be necessary to delve upon the procedural formalities ::: Downloaded on - 09/06/2013 15:18:21 ::: : 22 :

to be observed under the MOFA in detail. The second aspect that needs rt

to be kept in mind is that it is common ground that the building of ou

Respondent No.5 which is to be redeveloped is adjacent to the disputed property. Besides the building of Respondent No.5, there are buildings of C

other Societies. Indeed, all these Societies are the product of one Scheme and the disputed plot was in common use of the occupants. Ordinarily, one would assume that it would have been appropriate to offer the h

proportionate plot to the adjacent buildings. However, it is seen that the ig

adjacent buildings have already resorted to redevelopment work and H

necessary NOC for the same was given to them with the TB land in their possession. The redevelopment work of all the other four Societies adjacent y

to the land have already been carried out on that basis. It is only the ba

Respondent No.5 who has now commenced the redevelopment of its building which is adjacent to the disputed plot. For that reason, the om

Respondent No.5 made request to the Authority to allot the plot as it was a NTB NIB plot. In the context of the said request, the Authorities allotted B

portion of the plot which was NTB NIB admeasuring around 268.43 sq.mtrs. This land was an open land. Soon thereafter, the Authorities issued offer letter in respect of the plot on which water pump and water tank is located admeasuring about 394.72 sq.mtrs. being a TB plot. Upon ::: Downloaded on - 09/06/2013 15:18:21 ::: : 23 :

allotment of the first plot, obviously the plot on which water pump and rt

water tank is situated would become a TB plot, as it would be without any ou

direct access. It is for that reason, the Petitioners would argue that the action of the Authorities was a colourable action of allotting the whole disputed C

plot in two trenches. First as NTB NIB and thereafter as TB plot. This argument though attractive, will have to be turned down. Inasmuch as, the first allotment of portion of land upon execution of supplementary Lease h

Deed was as per the initial request of Respondent No.5 to allot said portion ig

being NTB NIB. Later on, Respondent No.5 submitted another proposal in H

respect of the other portion of the plot which was to be rendered TB plot. That proposal was ultimately accepted on 12th February 2008 and y

supplementary Lease Deed in relation to that portion of land was executed ba

on 28th March 2008. Significantly, it is noticed that no other Society having its building adjacent to the disputed plot have had at any time, come om

forward with request for allotment of the plot in question. On the other hand, each of the said Societies independently submitted their B

redevelopment proposals and availed of TB plot available to them.

11. The next question is: whether it was impermissible for the Chief Officer to make such allotment. No legal provision has been brought to our notice which would affect the powers of the Chief Officer or prohibit such ::: Downloaded on - 09/06/2013 15:18:21 ::: : 24 :

allotment by the Chief Officer. It is noticed that the Chief Officer has acted rt

in consonance with the Resolutions of Respondent No.2 as also the extant ou

policy. Our attention was invited to the Resolution which provides that in the layout of colonies, the premises besides the premises adjacent to the C

various buildings to be given as per the Rules which is independently not redevelopable, the premises which are not appropriate for independent construction or which cannot be independently sub-divided should be h

considered as TB plots. The Chief Officer pursuant to the proposal ig

submitted by the Respondent No.5 considered the location of the disputed H

plot and formed opinion that the same was not independently developable. It was argued that as per the same policy, only plots which do not have y

approach road and closed by adjacent buildings, could be allotted to the ba

adjoining buildings in equal ratio. It was argued that there was access already available to the disputed plot which could be discerned from the om

plans placed on record. In the first place, we have to go by the approved layout plan. The approved layout plan does not support this position. B

Moreover, no Society having building adjacent to the disputed plot have come forward for proportionate allotment of the plot. On the other hand, they submitted independent proposals for redevelopment of their respective buildings by availing of TB plots available to them. ::: Downloaded on - 09/06/2013 15:18:21 ::: : 25 :

12. It was then argued that the question as to whether the plots which are rt

neither TB nor appropriate for development, such proposal ought to be ou

decided by the Vice Chairman and CEO/Authority. The Chief Officer is delegated with the power to consider for residential, commercial and any C

other use till 50% of the area of original tenement and in case of use of more than 50% of the area of the original tenement, the proposal was to be considered by the Vice Chairman and CEO/Authority. The objection h

regarding authority of the Chief Officer is being raised only before this ig

Court. Be that as it may, considering the fact that the first proposal was for H

allotment of open plot admeasuring 268.43 sq.mtrs., the Chief Officer as per the policy, was fully competent to consider the same on his own. He y

accordingly, allotted that portion of the plot to the Respondent No.5 and ba

issued letter of offer on 24th November 2006 and supplementary Lease Deed in that behalf was executed on 13th August 2007. Thereafter, the om

second proposal with regard to plot on which water tank and water pump was situated was considered. It cannot be overlooked that the allotment is B

made by Officer of the level of Chief Officer. The Chief Officer has followed the norms provided in the stated Resolutions. There is nothing on record to indicate that the norms so provided in the Resolution have been breached in any manner. It has also come on record that the Respondent No. ::: Downloaded on - 09/06/2013 15:18:21 ::: : 26 :

5 has paid substantial amount as is specified under the Resolution to rt

effectuate the allotment of land in its favour. Besides, the Respondent No.5 ou

has filed undertaking to abide by the conditions specified for allotment of the disputed land.

C

13. We are of the view that the present Petition ought to fail in the first place because the Petitioners have no right whatsoever in the disputed plot. h

The ownership vests in the Respondent No.2. Moreover, as per the Sale ig

Deed executed by the Societies, the Respondent No.2 would continue to H

have authority to deal with the property in accordance with law. The Respondent No.2 has accordingly allotted the suit plot in consonance with y

the stated Resolutions. The allotment has been made as the plot in question ba

was undevelopable and was adjacent to the building of Respondent No.5 which was to be redeveloped. Besides the Respondent No.5, no other om

Society having its building adjacent to the disputed plot has come forward to claim allotment of the disputed plot or portion thereof. All these aspects B

have been adverted to by the Chief Officer while considering the grievance of the Petitioners and has been rightly answered against the Petitioners.

14. The Petitioners have raised other issues but having answered the above questions against the Petitioners, the other peripheral issues raised by ::: Downloaded on - 09/06/2013 15:18:21 ::: : 27 :

the Petitioners will not take the matter any further. According to the rt

Petitioners, the representation was made to all the Societies as well as the ou

Petitioner Federation that the garden will be allotted to the Federation, which will be available for common use of occupants of all the 14 C

buildings. The argument of the Petitioners that the layout cannot be altered without the consent of the occupants of the 14 buildings is on the premiss of principles underlying provision of MOFA enactment, which admittedly has h

no application. Moreover, it is noticed that the layout plan has been ig

approved by the Corporation under the Development Control Regulations H

by following due process. That was done as back as in October 1999, which approval has been allowed to become final. The argument of the y

Petitioners that the disputed plot always had an independent access, cannot ba

be decided on the basis of the sketch or plan which have come on record, but will have to be answered on the basis of the approved layout plan. That om

indicates that no direct access was available to the disputed plot. It has come on record that all the neighboring buildings have already been B

redeveloped and they have put up compound wall. In any case, going by the approved layout plan, coupled with the fact that the location of the plot is such that it is undevelopable plot, the acceptance of proposal submitted by Respondent No.5 by Respondent No.2 cannot be faltered. ::: Downloaded on - 09/06/2013 15:18:21 ::: : 28 :

15. The Petitioners have relied on the Lease executed in favour of Tushar rt

Bindu CHSL dated 9th March 2001 to contend that the claim of the ou

Corporation that earlier plan has become redundant is belied. The argument though attractive, will have to be rejected as the documents executed C

between Tushar Bindu CHSL and the Respondent No.2 cannot be the basis to ignore the approved layout plan of the Corporation. The Petitioners have also placed emphasis on the application made by Respondent No.9 for h

allotment of garden. In response to which, MHADA had replied that the ig

same cannot be allotted and shall not be allotted in future as it is reserved H

for garden. This aspect has already been dealt with hitherto. The official Respondents in the affidavit have explained that the said fact recorded in y

that communication was a mistake. Moreover, the garden as provided in the ba

layout is not triangular but of squarish shape. The same is on plot other than the disputed plot.

om

16. Significantly, the Petition proceeds on the premiss that the disputed B

land has been handed over to the Petitioners by the Authorities which is factually incorrect. Whereas, the Petitioners were given only management of the water pump and water tank to supply water to all the 14 buildings. With passage of time, the member Societies have already redeveloped their ::: Downloaded on - 09/06/2013 15:18:21 ::: : 29 :

respective buildings and have provided independent water supply rt

arrangement, as was one of the condition for redevelopment. None of the ou

Societies adjacent to the disputed plot at any time requested the Authority to allot the disputed plot as a whole or in part. On the other hand, proposal for C

redevelopment submitted by the said buildings were approved and NOC granted, according to which, the said Societies have already availed of available TB plots. The Respondent No.5, however, has now decided to h

redevelop building No.5, which is adjacent to the disputed plot. Having ig

regard to the peculiar location and shape of the plot, as it was independently H

undevelopable one, the Respondent No.2 has legitimately allotted the same to the Respondent No.5 on certain terms. The Respondent No.5 has also y

filed undertaking to abide by such conditions. Taking overall view of the ba

matter, this Petition should fail being devoid of merits. om

17. Accordingly, this Writ Petition is dismissed with no order as to costs. Rule is discharged forthwith.

B

CHIEF JUSTICE

A.M.KHANWILKAR, J.

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