{"id":71581,"date":"2008-08-21T00:00:00","date_gmt":"2008-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-act-vs-the-state-of-maharashtra-on-21-august-2008"},"modified":"2018-05-26T15:46:58","modified_gmt":"2018-05-26T10:16:58","slug":"union-act-vs-the-state-of-maharashtra-on-21-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-act-vs-the-state-of-maharashtra-on-21-august-2008","title":{"rendered":"Union Act vs The State Of Maharashtra on 21 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Union Act vs The State Of Maharashtra on 21 August, 2008<\/div>\n
Bench: S.B. Mhase, A.A. Kumbhakoni<\/div>\n
                             1\n\n\n\n\n                                                                     \n         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n           ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                             \n            WRIT PETITION NO.    2296   OF       2007\n\n\n\n\n                                            \n         The BEST Workers Union          ]\n         A union duly registered under   ]\n         the provisions of Indian Trade ]\n\n\n\n\n                                \n         Union Act, 1926 and a           ]\n         Representative Union approved ]\n                     \n         under the provisions of Bombay ]\n         Industrial Relations Act, 1946 ]\n                    \n         having its registered office at ]\n         42, Kennedy Bridge,Mumbai 400004]..Petitioner\n\n                 versus\n           \n\n\n    1.   The State of Maharashtra        ]\n        \n\n\n\n         through its Department of Urban ]\n         Development, Mantralaya         ]\n         Mumbai 400 032                  ]\n\n\n\n\n\n    2.   The Municipal Corporation of    ]\n         Greater Mumbai,having its office]\n         at Mahapalika Marg,Mumbai 400001]\n\n\n\n\n\n    3.   The Municipal Commissioner,            ]\n         Municipal Corporation of               ]\n         Greater Mumbai, having his             ]\n         office at Mahapalika Marg,             ]\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 13:42:39 :::\n                             2\n\n         Mumbai 400 001                   ]\n\n\n\n\n                                                               \n    4.   The Brihan Mumbai Electric      ]\n         Supply and Transport Undertaking]\n\n\n\n\n                                       \n         an Undertaking of Municipal     ]\n         Corporation of Greater Mumbai   ]\n         established under the provisions]\n\n\n\n\n                                      \n         of Mumbai Municipal Corporation ]\n         Act, 1888 having its head office]\n         at BEST Bhavan, BEST Marg,      ]\n         Colaba, Mumbai 400 001          ]\n\n\n\n\n                               \n    5.   Shri Uttam Khobragade\n                     ig                  ]\n         General Manager,The Brihanmumbai]\n         Electric Supply and Transport   ]\n                   \n         Undertaking, an Undertaking of ]\n         Municipal Corporation of        ]\n         Greater Mumbai, established     ]\n         under the provisions of Mumbai ]\n           \n\n         Municipal Corporation Act, 1888 ]\n         having its Head Office at BEST ]\n        \n\n\n\n         Bhavan, BEST Marg, Colaba,      ]\n         Mumbai 400 001                  ]\n\n\n\n\n\n    6.   The Deputy Director             ]\n         Town Planning for Greater Mumbai]\n         at Mumbai                       ]\n\n\n\n\n\n    7.   M\/s. Vijay Associates (Wadhwa) ]\n         Constructions Pvt.Ltd. a company]\n         incorporated under provisions ]\n         of Companies Act, 1956, having ]\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 13:42:40 :::\n                                     3\n\n            its registered office at 425-A, ]\n            Vasukamal, 14th Road, Bandra    ]\n\n\n\n\n                                                                           \n            (West), Mumbai 400 050          ]..Respondents\n\n\n\n\n                                               \n    Mr. V. M.       Thorat   i\/b.   Mr.   Pramod      Patil         for       the\n    Petitioner.\n    Mr. Pradip Jadhav, AGP for the State. - Respondent No.1\n\n\n\n\n                                              \n    and 6.\n    Mr. C. U. Singh, Sr. Counsel with Ms. S. M. Modle for\n    MCGM - Respondent Nos. 2 and 3.\n\n\n\n\n                                         \n    Mr. D. G. Dhanure i\/b. M\/s. M. V. Kini & Co.                     for the\n    Respondent No.4.\n                             \n    Mr. V. A. Thorat, Sr. Counsel with Mr. D. G. Dhanure\n    and Mr. Vaibhav Sugdare i\/b. M\/s. M. V. Kini & Co. for\n    the Respondent No.5.\n                            \n    Mr. Janak Dwarkadas, Sr. Counsel with Mr. Parimal\n    Shroff, Mr. Subodh Joshi, Ms. Radhika Kalpatrai i\/b.\n    M\/s. Parimal Shroff & Co. for the Respondent No. 7.\n         \n\n\n            CORAM:    S.B. MHASE & A.A. KUMBHAKONI, JJ.\n<\/pre>\n
         Date of Reserving the Judgment:            4th July,2008.
\n         Date of Pronouncing the Judgment:21st August,2008.\n<\/p>\n
    ORAL JUDGMENT    : (Per: A. A. Kumbhakoni, J.)<\/p>\n
            In view the peculiar facts and circumstances of<\/p>\n
    this case the learned counsels appearing on behalf of
\n    all the parties requested us that instead of hearing
\n    them for admission of this petition, particularly on
\n    the issue of interim relief, we may hear all of them<\/p>\n
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\n                                              4<\/span><\/p>\n
    for final disposal of this petition at the admission<\/p>\n
    stage    itself,      as    in    their       submission         they       would        be
\n    advancing similar arguments for both the purposes. Even<\/p>\n
    otherwise      this        petition       raises        such       issues          which
\n    require detail scrutiny at our hands. Hence we grant
\n    Rule and make it returnable forthwith. All the learned<\/p>\n
    counsels appearing on behalf of the Respondents waive
\n    service of the rule on the respective respondents. We<\/p>\n
    have heard all of them for couple of hours each for
\n    almost seven consecutive working days and reserved the<\/p>\n
    judgement, which is being delivered today.\n<\/p>\n
    1.        The petitioner is a Recognised Representative
\n    Union of workers of “Brihan Mumbai Electric Supply and<\/p>\n
    Transport      Undertaking” (hereinafter referred to                                     as
\n    the   “BEST”    for        the    sake       of   brevity),         which        is      an<\/p>\n
    Undertaking of the               Municipal Corporation of Greater
\n    Mumbai     (hereinafter            referred            to     as       the         “said<\/p>\n
    Corporation”       for       the     sake         of    brevity).             The       2nd
\n    Respondent     herein        is    the        said     Corporation             and      4th
\n    Respondent herein is the BEST.                    5th Respondent herein is<\/p>\n
    the General Manager of BEST who has been made party by
\n    his name. The 1st respondent is the                     State Government.\n<\/p>\n
    2.        The dispute between the parties in the present<\/p>\n
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\n                                              5<\/span><\/p>\n
    petition is in respect of a piece of land. Normally,<\/p>\n
    we would have referred to it as “a plot”. However, we
\n    are not doing so as there is controversy                          amongst the<\/p>\n
    parties as to whether in law, this piece of land in
\n    issue can be referred to                     as “a plot” or not. This
\n    piece    of       land    which    is    the    subject    matter         of      the<\/p>\n
    present writ petition admeasures 27,913.93 sq. meters
\n    and is a part of Survey no. 6 (part)i.e. City Survey<\/p>\n
    no.    1(Part)       of    Village       Goregaon,     Oshiwara,          Mumbai,
\n    (hereinafter             referred to as “the suit property” for<\/p>\n
    the sake of brevity). For the purpose of identification
\n    of the suit property, at least in the beginning, we<\/p>\n
    must state that the suit property has been marked as
\n    “Plot No.2A” by the BEST in its records,though it is<\/p>\n
    the specific contention of the Respondents that the
\n    larger       portion      of    CTS    No.   1(part)    which       admeasures<\/p>\n
    1,54,082.40 sq. meters ( hereinafter referred to as
\n    ‘the said large track of land’ for the sake of brevity)<\/p>\n
    has not been sub divided into various plots in the eyes
\n    of    law.    We    will       refer    to   this   controversy          at     some
\n    length at an appropriate stage hereunder. Be that as it<\/p>\n
    may.\n<\/p>\n
    3.           In    the     beginning           we   give    hereunder             the
\n    admitted, but only relevant, Chronology of Dates and<\/p>\n
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\n                                     6<\/span><\/p>\n
    Events to understand the facts of the case with some<\/p>\n
    precision. This Chronology will be also handy at the
\n    later   stage    of     this   Judgment      when        we      will         be<\/p>\n
    considering the contention of one of the contesting
\n    Respondents i.e. Respondent No. 7, the Developer, that
\n    this Petition is liable to be dismissed on the ground<\/p>\n
    of delay and latches, apart from other grounds taken up
\n    in defense.\n<\/p>\n
            13th    April   1973\n                             ig    :By   way    of   Land       Acquisition\n<\/pre>\n
    Award bearing No. LAQ 6748 an area of 95,721 sq. meters
\n    out of Survey No. 6 was acquired for Staff Housing of<\/p>\n
    BEST workers and was handed over to the BEST.\n<\/p>\n
            29th August,1974 : By way of Land Acquisition<\/p>\n
    Award bearing No. LAQ 280 an area of 5836.14 sq. meters
\n    out of Survey No. 6 was acquired for Staff Housing of<\/p>\n
    BEST workers and was handed over to the BEST.\n<\/p>\n
            23rd October,1989 : A         Lay    Out      Plan for sub-\n<\/p>\n
    dividing the said       large track of land was                 prepared.
\n    In this Lay out Plan, the suit property has been marked
\n    as Plot No.2A.\n<\/p>\n
            11th    May,    1993    :    The    Revised           sanctioned
\n    Development Plan prepared under             Maharashtra Regional
\n    and Town Planning Act, 1960 (hereinafter referred to as
\n    “the MRTP Act”) came into force in which the                              said<\/p>\n
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\n                                             7<\/span><\/p>\n
    large track of land including the suit property was<\/p>\n
    reserved for “BEST Bus Depot, Scrap Yard and Housing”.\n<\/p>\n
              ———-               : Various portions of the said<\/p>\n
    large track of land used by the BEST for following
\n    purposes :-\n<\/p>\n
              (a)1,69,30.91 sq.mts. Constructing 10 buildings<\/p>\n
                            for Staff Housing\n<\/p><\/blockquote>\n
              (b) 5,025.01 sq.mts. Scrap Yard.\n<\/p><\/blockquote>\n
              (c) 7,557.05 sq.mts. Goregaon Bus Depot.\n<\/p><\/blockquote>\n
              (d) 6,540.75 sq.mts. Oshiwara Depot.<\/p><\/blockquote>\n
              17th     October,1995         :     The     BEST     submitted             a<\/p>\n
    proposal with the State Government seeking permission
\n    to use that portion of the said large track of land<\/p>\n
    which    by      this    time     was       still    laying       vacant          for
\n    commercial purpose, in addition to the purposes for
\n    which    it   was       reserved   under       the    aforesaid           revised<\/p>\n
    Development Plan.\n<\/p>\n
              19th November,1997 :                 The     State        Government
\n    issued   an      order    under    Section      154    of     the      MRTP       Act
\n    directing the said Corporation to take steps to carry<\/p>\n
    out requisite amendments in the Regulation no 9 of the
\n    Development       Control       Regulations,          1991      (hereinafter
\n    referred to as the “said DCR”)                  by taking steps under<\/p>\n
    Section 37(1) of the MRTP Act.\n<\/p>\n
                  However,      the     said       Corporation          failed          to
\n    publish the Notice accordingly                 within a period               of 60
\n    days from the aforesaid Directives.\n<\/p>\n
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\n                                          8<\/span><\/p>\n
                24th August,2004 : In view of the failure of the<\/p>\n
    said Corporation to take steps under Section 37 of MRTP
\n    Act   1960     accordingly,        the     State   Government               itself<\/p>\n
    issued a Notice in exercise of its powers under sub
\n    Section 1(A) of Section 37 of the MRTP Act.\n<\/p>\n
                6th\/8th Sept.2004 : The said Notice was published<\/p>\n
    in the local newspapers.\n<\/p>\n
                9th Sept,2004 : Said Notice was published in a<\/p>\n
    Government Gazette.\n<\/p>\n
                13th May,2005 :ig    The Deputy        Collector of Town
\n    Planning submitted a report in this regard to the State<\/p>\n
    Government.\n<\/p>\n
                24\/27th   July   2006    :     The   Government           published
\n    requisite Notification under Section 37 of the MRTP Act<\/p>\n
    effecting amendment in Regulation No. 9 of said DCR.\n<\/p>\n
                Sept. 2006 : BEST issued Tenders inviting bids
\n    for   the    development      to    be   carried       out      at     the      suit
\n    property. In all 66 tenderers                purchased tender forms.\n<\/p>\n
    The reserved rate of payment of non refundable                            deposit
\n    was notified as Rs.23,941\/-              per sq. meters.\n<\/p>\n
                8th September, 2006 :Pre-bid meeting was held.\n<\/p>\n
                18th September, 2006 : Bids of 9 tenderers were
\n    opened.       One     tenderer       was     disqualified               due         to
\n    submission      of    invalid      Solvency      Certificate.             The      7th
\n    Respondent      offered      highest       bid   and     quoted         rate       of<\/p>\n
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\n                                            9<\/span><\/p>\n
    Rs.57,000\/-(as against the reserved bid of Rs.23,941\/-)<\/p>\n
    per sq. meter for payment of non refundable deposit.
\n    Thus, the 7th Respondent was adjudged as the highest<\/p>\n
    bidder.\n<\/p>\n
               18th May, 2007:       The         7th         Respondent                paid
\n    Rs.2,23,95,87,000\/-(Rs. Two Hundred Twenty Three Croers<\/p>\n
    Ninty      Five    Lacs    and     Eighty          Even        Thousand          Only)
\n    @ Rs.57,000\/- per sq. meter for 39,291 sq. meters to<\/p>\n
    the 4th respondent. The 4th Respondent executed Agreement
\n    for Development with the 7th Respondent.\n<\/p>\n
               14th June, 2007 : The 7th Respondent                       received an
\n    IOD for the       development of the suit property.\n<\/p>\n
               21st June, 2007 : The 7th Respondent received
\n    Commencement Certificate to commence the construction.\n<\/p>\n
               ---------               : It is the case of the 7th\n    Respondent        that    up   till        now     the    construction               has\n         \n\n\n\n    proceeded substantially and                that the 7th Respondent has\n    put   in    or    spent    about   Rs.       Thirty        Cr.      towards          the\n\n\n\n\n\n    developmental        activities        carried           out     at      the       suit\n<\/pre>\n
    property, including Rs. 2.23 Cr. Towards stamp duty and
\n    registration fees etc.<\/p>\n
               9th October 2007 : Present Writ Petition filed.\n<\/p>\n
    4.         The Petitioners have filed this Petition in the
\n    light of the aforesaid Chronology of Events, impugning<\/p>\n
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\n                                           10<\/span><\/p>\n
    or challenging :-\n<\/p>\n
            (i)       Validity,           legality      and       propriety
\n            of aforesaid       Notification dated 27.7.2006<\/p>\n
            issued by the State Government in exercise
\n            of its powers under Section 37(2)of the
\n            MRTP Act whereby Regulation No. 9 of said<\/p>\n
            DCR has been amended;\n<\/p><\/blockquote>\n
            (ii)      The decision of the 5th Respondent<\/p>\n
            of allotting the suit property to the 7th
\n            Respondent for commercial development;\n<\/p><\/blockquote>\n
            (iii)     Resolution dated 6.11.2006 of the
\n            BEST approving the Agreement with the 7th<\/p>\n
            Respondent       for    development             of    the       suit
\n            property.\n<\/p><\/blockquote>\n
            (iv)      Building                 and      other             plans\n            sanctioned             by      the       said     Corporation\n        \n\n\n\n            permitting    the       7th        Respondent        to    put      up\n            construction      and\/or            make   development              on\n\n\n\n\n\n            the suit property.\n\n\n    5.      The     Petitioners have raised following issues\n\n\n\n\n\n<\/pre>\n
    for consideration of this Court by way of the present
\n    Writ Petition:-\n<\/p><\/blockquote>\n
           (I)        Whether       the         suit   property           is\n           affected     by     Coastal            Regulation          Zone\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 13:42:40 :::<\/span>\n                                     11<\/span>\n\n           Notification and Mangroves ?\n\n\n\n\n                                                                              \n           (II)      Whether the Notification dated\n           27th July,2006 amending Regulation No. 9<\/span>\n\n\n\n\n                                                      \n           of the    said DCR is liable to be struck\n           down on the         ground    of    non-compliance\n           with     the        procedure       prescribed           by\n\n\n\n\n                                                     \n           Section 37 of MRTP Act, 1960?\n           (III)     Whether the suit property is a\n\n\n\n\n                                          \n<\/pre>\n
           separate plot prepared on account of an
\n           alleged     approved
\n                           ig            sub    division            of
\n           original Survey No. 6(Part)i.e. CTS No.
\n           1 (Part)?\n<\/p><\/blockquote>\n
           (IV)      Whether       the     Resolution         dated
\n           6.11.2006 passed by BEST is sustainable<\/p>\n
           in law and in view of the facts of the
\n           case?\n<\/p><\/blockquote>\n
           (V)       Whether       the     Agreement          dated
\n           18.5.2007 entered into between 5th and<\/p>\n
           7th Respondent         and    all    consequential
\n           Agreements\/Contracts\/Writings\/Permissio
\n           ns\/Sanctions are sustainable in law and<\/p>\n
           in view of the facts of the case?\n<\/p><\/blockquote>\n
    6.       Instead      of    reproducing      at     this       stage         the
\n    entire submissions of the petitioner followed by entire<\/p>\n
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\n                                            12<\/span><\/p>\n
    replies thereto given by the Respondents, we propose to<\/p>\n
    set out submissions of Petitioner and the Respondents
\n    herein     along    with       our    conclusions     in      that       regard,<\/p>\n
    point-wise or issue-wise for the better appreciation of
\n    the rival contentions.\n<\/p>\n
    7.         POINT NO.       1 : Delay and Latches\n\n               The      Respondents,            particularly,        the              7th\n\n\n\n\n                                                \n    Respondent       has contested the Petition on the ground\n<\/pre>\n
    that the present Writ Petition suffers from delay and<\/p>\n
    latches. It is contended on behalf of the 7th Respondent
\n    that by the time the present petition was filed in this<\/p>\n
    Court, the 7th Respondent had already been out of pocket
\n    by    at    least     Rs.223,95,87,000\/-             towards        only         the<\/p>\n
    non-refundable         deposit        made      in    terms        of        their
\n    successful bid and consequent aforesaid Agreement of<\/p>\n
    Development dated 18th May, 2007. In addition thereto,
\n    it    is   contended      by    the    7th    Respondent      that       the      7th<\/p>\n
    Respondent has spent amounts towards stamp duty and
\n    registration fee for getting the aforesaid agreement
\n    duly stamped and registered. It is further contended<\/p>\n
    that the 7th respondent has also incurred additional
\n    expenses to the tune of about Rs.30,00,00,000\/- (Rs. 30
\n    Croers)in pursuance of the Development Agreement for
\n    the    purpose       of    actually          conducting      developmental<\/p>\n
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\n                                            13<\/span><\/p>\n
    activities at the suit property after it was granted<\/p>\n
    IOD    on    14.6.2007         and    Commencement           Certificate              on
\n    21.6.2007.\n<\/p>\n
    8.          It was contended by the learned Senior Counsel
\n    appearing      on    behalf      of    the     7th    Respondent,             in    the<\/p>\n
    aforesaid      background        that       the      Notification,             issued
\n    under section 37 of the MRTP Act is dated 20.7.2006 and<\/p>\n
    that the present petition has been filed as late as on
\n    9.10.2007. He drew our attention to the Chronology of<\/p>\n
    the Events set out at the threshold of this Judgment
\n    and submitted that in the meantime the 7th Respondent<\/p>\n
    has    acted   bonafide        in     taking      various       steps         and     in
\n    spending the huge amounts.               He       relied on the following<\/p>\n
    two judgments of the Hon’ble Supreme Court to submit
\n    that   we    should      not    exercise       our       discretionary             writ<\/p>\n
    jurisdiction        in   entertaining         this       writ     petition,           in
\n    view of the unexplained delay and latches on the part<\/p>\n
    of the petitioners.\n<\/p>\n
                (1)The Moon Mills Ltd.,vs. M. R. Meher,
\n                President     Industrial          Court,       Bombay         &<\/p>\n
                Ors. Reported in [AIR 1967 Supreme Court
\n                1450] (paragraph 6)
\n                (2)Maharashtra           State        Road     Transport
\n                Corporation        vs.    Balwant        Regular      Motor<\/a><\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:42:40 :::<\/span>
\n                                      14<\/span><\/p>\n
            Service,      Amravati      &   Ors.    Reported            in<\/p>\n
            [AIR 1969 Supreme Court 329](para 6)<\/p>\n
    9.      On    the     other    hand,       the        learned            counsel
\n    appearing on behalf of the petitioner contended that in
\n    the petition itself, the petitioner has set out various<\/p>\n
    steps which the petitioner took after the petitioner
\n    became aware of the modifications\/amendments sought to<\/p>\n
    be made in the said DCRs by the State Government and
\n    the steps that were taken ig     by the BEST towards disposal
\n    of the suit property. The petition has been filed by
\n    the   petitioner    as    expeditiously          as      possible            after<\/p>\n
    exhausting various remedies available in law and only
\n    after realising that the petitioners were not getting<\/p>\n
    justice at the hands of other Authorities and by taking
\n    recourse to other remedies available to them in law.\n<\/p>\n
    10.     The Supreme Court in the case of Trilokchand<\/p>\n
    Motichand Vs. H.B.Munshi reported in AIR 1970 SC 898
\n    ( Paragraph 10 & 11) has held that in India each case
\n    will have to be considered on its own facts and that<\/p>\n
    such issue of delay and latches is one of discretion of
\n    the   court   to    follow     from      case    to        case.         Similar
\n    observation    also      can   be       found    in         the       case        of
\n    R.S.Deodhar Vs. State of Maharshtra reported in AIR<\/p>\n
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\n                                               15<\/span><\/p>\n
    1974 SC 259         (paragraph 9).\n<\/p>\n
              After having considered the rival submissions
\n    in this regard in the proper perspective, we are of the<\/p>\n
    view that the present petition cannot be thrown out
\n    merely on the ground of delay and latches. This writ
\n    petition raises important issues of law which need to<\/p>\n
    be dealt with extensively by us. Even otherwise the
\n    Chronology of the Events set out at the threshold of<\/p>\n
    this    Judgment       will        certainly          demonstrate           that       the
\n    petitioners         have     filed
\n                                  ig         this       petition       on     9.10.2007;\n<\/p>\n
    whereas       the     7th     respondent             paid     the        amount          of
\n    consideration         set      out        herein       above       and       got       the<\/p>\n
    agreement in issue executed only on 18.5.2007. The IOD
\n    has    been    issued        on    14.6.2007          and    the      Commencement<\/p>\n
    Certificate has been issued on 21.6.2007.\n<\/p>\n
    11.       These       dates         in     particular          show        that        the
\n    petition has been filed within five months from the<\/p>\n
    execution of the Agreement in issue and within about
\n    three   and     half        months       of    issuance       of     IOD      and       \/or
\n    Commencement        Certificate.              In    this    regard,       we      cannot<\/p>\n
    over look the fact that the petitioner is a recognised
\n    representative of workers of the BEST and is trying to
\n    enforce       its    alleged         rights         and\/or      claims          against
\n    organisations         like        BEST,       the    said    Corporation,              the<\/p>\n
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\n                                          16<\/span><\/p>\n
    State Government and obviously financially sound                                     7th<\/p>\n
    respondent      who    has    capacity         to   invest        hundreds           of
\n    crores of rupees in a development project.\n<\/p>\n
    12.       Considering the overall strength and weakness
\n    of the contesting parties and the Chronology of Events<\/p>\n
    set out at threshold of this Judgment, we are of the
\n    view that the petition does not suffers from such gross<\/p>\n
    delay and latches that it need not even be entertained
\n    by us on these grounds alone.ig\n<\/p>\n
    13.       It    was    also        contended        on     behalf          of      the<\/p>\n
    respondents that the conduct of the petitioner is blame
\n    worthy in as much as the impugned modification and\/or<\/p>\n
    amendments in the said DCRs related to three sites of
\n    the BEST and that the petitioner was prosecuting its<\/p>\n
    claim and making grievance only in respect of the suit
\n    property.      In   other    words,       it   is    contended           that       the<\/p>\n
    petitioner was not raising even an eyebrow in regard to
\n    three sites of the BEST              situate at           Mahim, Kurla and
\n    Dahisar        which        were      also          affected            by         the<\/p>\n
    amendment\/modification of the said DCRs in issue and
\n    that the petitioner was selectively making a grievance
\n    about the suit property alone.\n<\/p>\n
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\n                                       17<\/span><\/p>\n
    14.        The learned counsel appearing on behalf of the<\/p>\n
    7th respondent relied on the Judgment of the Supreme
\n    Court delivered in the case of State of Maharashtra vs.<\/p>\n
    Digambar<\/a> [(1995)4 Supreme Court Cases 683)] (paragraph\n<\/p>\n
    19) to buttress his submission that in view                       of this
\n    blame worthy conduct of the petitioner, we should not<\/p>\n
    exercise           our      extra-ordinary             discretionary
\n    constitutional writ jurisdiction under Article 226 of<\/p>\n
    the Constitution in the present case. The aforesaid
\n    Paragraph 19 reads thus :\n<\/p>\n
              19. Power of the High Court to be<\/p>\n
              exercised   under   Article   226   of   the
\n              Constitution, if is discretionary, its
\n              exercise must be judicious and reasonable,
\n              admits of no controversy. It is for that
\n              reason, a person’s entitlement for relief<\/p>\n
              from a High Court under Article 226 of the
\n              Constitution, be it against the State or
\n              anybody else, even if is founded on the<\/p>\n
              allegation of infringement of his legal
\n              right, has to necessarily depend upon
\n              unblameworthy   conduct   of    the   person
\n              seeking relief, and the court refuses to
\n              grant the discretionary relief to such<\/p>\n
              person in exercise of such power, when he
\n              approaches   it   with  unclean   hands   or
\n              blameworthy conduct.\n<\/p><\/blockquote>\n
    15.        The learned     counsel appearing on behalf of the
\n    petitioner on the other hand contended that in as much
\n    as the modification\/amendment effected in the said DCRs
\n    is    concerned,    the   same   has   impact   on    the      aforesaid<\/p>\n
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\n                                       18<\/span><\/p>\n
    three sites as against the suit property in a factually<\/p>\n
    and actually different manner. In as much as the suit
\n    property is concerned, it forms part of the said large<\/p>\n
    track of land and that excepting housing, the other
\n    purposes for which the said large track of land is
\n    reserved     for    the   development         have       been         already<\/p>\n
    accomplished       on account of the developments that have
\n    already     been   carried     out     by   the    BEST       at      various<\/p>\n
    portions of said large track of land other than the
\n    suit   property.     It   is
\n                               ig   contended     on      behalf          of     the
\n    petitioners that no part of the properties of the BEST
\n    situated at Mahim and Dahiser are reserved for housing<\/p>\n
    of workers of the BEST and that at the property of BEST
\n    situate    at   Kurla   quarters       for workers of            BEST       were<\/p>\n
    already      provided     which        at    present          are          being
\n    redeveloped. On the basis of these factual contentions<\/p>\n
    it is submitted on behalf of the petitioners that the
\n    petitioner was justified in filling this petition only<\/p>\n
    in respect of the suit property and in not raising any
\n    objection in respect of the other three properties of
\n    the BEST situate at Mahm, Kurla and Dahisar.\n<\/p>\n
    16.        In view of the aforesaid nature of controversy
\n    it is to be noted that the Respondents have not placed
\n    on record the factual details in regard to the sites of<\/p>\n
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\n                                             19<\/span><\/p>\n
    the BEST situate at Mahim,Kurla and Dahisar enabling us<\/p>\n
    to    assess   the    impact       of        the   modification\/amendment
\n    effected in the said DCRs which are impugned by the<\/p>\n
    present writ petition, on those properties. In absence
\n    of any factual details in that regard, we are unable to
\n    appreciate     the   contentions             raised      on   behalf         of     the<\/p>\n
    respondents in this regard, especially on account of
\n    the aforesaid factual dispute raised in that by the<\/p>\n
    Petitioner. Even otherwise only because the petitioners
\n    have not raised any objection in regard to other sites,<\/p>\n
    and have raised objections                   in regard to only the suit
\n    property, it cannot be said that the conduct of the<\/p>\n
    petitioners is blame worthy to such an extend that we
\n    should    refuse      to         exercise          our         extra-ordinary<\/p>\n
    constitutional       writ    jurisdiction            in    this       regard        and
\n    even refuse to examine the case even in regard to the<\/p>\n
    suit   property.     In     as    much        as   the    suit      property          is
\n    concerned, in the context of the said large track of<\/p>\n
    land and in the background of various factual aspects
\n    of the matter brought on record as to its actual user,
\n    we are of the view that it is necessary for us to<\/p>\n
    examine the legal issues raised by the petitioner.\n<\/p>\n
    17.       In our view, mere fact that the petitioners
\n    have not questioned the correctness of the impugned<\/p>\n
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\n                                          20<\/span><\/p>\n
    notification      and\/or     amendments\/modifications                 effected<\/p>\n
    in the said DCRs in regard to other aforesaid three
\n    sites of the BEST, cannot detain us in examining the<\/p>\n
    correctness thereof in regard to the suit property. If
\n    ultimately      we    find    that    the    impugned         notification
\n    and\/or    amendments\/modifications           effected        in      the     said<\/p>\n
    DCRs are illegal,unsustainable in law and in view of
\n    the facts of the case, it may not be just and proper to<\/p>\n
    let the same go without any scrutiny by us on the
\n    ground that the petitioners have let it go in regard to<\/p>\n
    other three sites of the BEST.\n<\/p>\n
    18.       In view of the aforesaid factual background of
\n    the present case, we are of the view that none of the<\/p>\n
    aforesaid three judgments of the Supreme Court apply to
\n    the facts of this case.          In our view, the facts of the<\/p>\n
    present    case      are     eloquent       enough     to      reject          the
\n    contention of the respondents that the present petition<\/p>\n
    is required to be thrown out and need not be considered
\n    on the ground of delay and\/or latches as also on the
\n    ground     of     alleged      blameworthy           conduct          of       the<\/p>\n
    petitioner. We will therefore proceed to consider the
\n    rival contentions raised by the parties on merits.\n<\/p>\n
    19.       POINT      NO.2:     Whether      the   suit      property          is<\/p>\n
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\n                                            21<\/span><\/p>\n
              affected by Coastal Zone CRZ Notification:\n<\/p>\n
               It is the contention of the petitioner that
\n    part of the suit property is affected by Coastal Zone<\/p>\n
    Regulation      Notification          and    that     part     of      the      suit
\n    property     is     also      covered         by    mangroves.            It      is,
\n    therefore,       contended       by     the        Petitioner         that        the<\/p>\n
    development on the suit property is not permissible in
\n    law and on this count also the development in issue is<\/p>\n
    unsustainable      in    law    and     in    view     of    the     facts        and
\n    circumstances of the case.\n<\/p>\n
    20.          An affidavit-in-reply has been filed by the<\/p>\n
    7th respondent dated 7.12.2007 making out a case that
\n    the 7th respondent has made necessary applications to<\/p>\n
    MOEF under Environmental Impart Assessment Notification
\n    seeking necessary clearance and that the application is<\/p>\n
    pending with MOEF.\n<\/p>\n
               However,     in     the    affidavit-in-reply               filed        on<\/p>\n
    behalf of the corporation dated 31.1.2008, it has been
\n    clarified       that    the    suit         property     is      only        partly
\n    affected by CRZ-II and it is not that the entire suit<\/p>\n
    property comes under CRZ-II.                   This affidavit further
\n    explains that the 7th respondent has submitted plans for
\n    putting    up     construction        on     such     area     of      the      suit
\n    property which is not affected by CRZ-II.                               In other<\/p>\n
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\n                                        22<\/span><\/p>\n
    words    the     contention   is    that    the    construction               of<\/p>\n
    buildings proposed by the 7th respondent is not on such
\n    area of the suit property which is covered by CRZ-II,<\/p>\n
    but is on such area of the suit property which is not
\n    affected by CRZ-II.           It is, therefore, contended on
\n    behalf of the respondents that there is no violation of<\/p>\n
    CRZ Notification.\n<\/p>\n
    21.       The learned counsel appearing on behalf of the
\n    petitioner in his usual fairness has conceded that the<\/p>\n
    aforesaid explanation and\/or clarification given by the
\n    said Corporation is not disputed by the petitioner.\n<\/p>\n
    Thus, the noncontroversial factual position which now
\n    has emerged, is clear as under:-\n<\/p>\n
              (i)        That the entire suit property (known as
\n                         plot no.2-A)is not affected by CRZ-II.\n<\/p><\/blockquote>\n
              (ii)       The 7th respondent has proposed to put
\n                         up construction on such portion of the<\/p>\n
                         suit   property    which     is     not      at     all
\n                         covered\/affected by CRZ-II.\n<\/p><\/blockquote>\n
    22.       In view of the aforesaid facts the objection of
\n    the     petitioner    to    the    effect    that       the        impugned
\n    transaction is illegal on account of the violation of
\n    CRZ Notification does not survive.\n<\/p>\n
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\n                                            23<\/span><\/p>\n
    23.         The    respondents         have    further          by      the       same
\n    affidavit         dated         31.1.2008          filed        on         4.2.2008<\/p>\n
    specifically       and       categorically         stated     that       the      suit
\n    property known as plot no.2-A is not at all affected by
\n    mangroves.         This        categorical          contention             of        the<\/p>\n
    respondents       is     not    disputed      by    the     learned          counsel
\n    appearing on behalf of the petitioner. We, therefore,<\/p>\n
    need not deal with this factual non-controverted aspect
\n    any further.\n<\/p>\n
    24.         We therefore conclude that the developmental<\/p>\n
    activities permitted by the said Agreement and proposed
\n    to    be   carried       out    in    pursuance      thereof         by      the      7th<\/p>\n
    respondent, on the suit property known as plot no.2-A,
\n    is    neither     contrary       to    CRZ    Notification            nor       is    it<\/p>\n
    covered\/affected by mangroves.\n<\/p>\n
    25.          Point No. 3: Validity of Notification dated
\n                 27.7.2007 issued under Section 37 of MRTP
\n                 Act, 1960:-\n<\/p>\n
                             A    large   track    of     land        was      acquired\n    under      the    Land       Acquisition      Act    as     and       by     way       of\n    compulsory        acquisition         from     private          owners\/holders\n<\/pre>\n
    prior to 1975. The acquisition was for the purpose of<\/p>\n
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\n                                         24<\/span><\/p>\n
    staff housing of BEST workers. The suit property forms<\/p>\n
    part    thereof.      As       stated     herein     above,          in      the
\n    Development Plan brought into force in accordance with<\/p>\n
    the    MRTP     Act   1960,   the    same   property         came       to      be
\n    reserved for BEST Bus Depot, Scrap Yard and Housing.
\n    However it is pertinent to note that in the Development<\/p>\n
    Plan itself separate portions of the said large track
\n    of land were not shown separately for each of these<\/p>\n
    purposes for which the use of said large track of land
\n    was so designated. In other words the designation so<\/p>\n
    made was a consolidated one for the entire large track
\n    of    land    taken   together      and   not   purpose-wise            and\/or<\/p>\n
    area-wise separate designation.\n<\/p>\n
    26.            It has come on record that in the said large
\n    track of land activities have already been carried out<\/p>\n
    by the BEST to comply with the purposes for which                             the
\n    aforesaid       reservations     were     provided     in     the       entire<\/p>\n
    reserved site i.e. said large track of land. There is
\n    no dispute between the parties that on                  the said large
\n    track of land not only Scrap Yard, Bus Depot have been<\/p>\n
    constructed but also on a portion thereof a Housing
\n    Society of BEST workers has been put up which is known
\n    as    “Ankur    Co-operative     Housing     Society”.        Admittedly,
\n    out of the said large track of land, the suit property<\/p>\n
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\n                                          25<\/span><\/p>\n
    is the only portion which at the relevant time, when<\/p>\n
    the aforesaid action under Section 154 of the MRTP Act
\n    was taken, was open and available for the development.\n<\/p>\n
    27.         It is the contention of the BEST that it was
\n    at the relevant time suffering huge financial losses to<\/p>\n
    the tune of about Rs.450 Crores per annum and that                                   it
\n    had no means of             getting over these losses. In the<\/p>\n
    absence of any financial resources worth the name, it
\n    is contended by the BEST that the only option available<\/p>\n
    for it was to permit commercial activity at the suit
\n    property     along    with     other       properties          of      the       BEST<\/p>\n
    situate     at     Mahim,    Kurla        and    Dahisar         and       thereby
\n    generate funds to wipe out the losses.                     It is therefore<\/p>\n
    contended    by     the     BEST    that    way        back     in     1995,         as
\n    reflected    by     the   aforesaid        Chronology         of      Events,         a<\/p>\n
    proposal     was     moved     by    the        BEST     with        the       State
\n    Government seeking permission to commercially exploit<\/p>\n
    the suit property. On account of specific reservation
\n    provided     in     the     Development         Plan      over        the        suit
\n    property, which did not include and\/or which did not<\/p>\n
    enable     such     commercial       exploitation             of      the        suit
\n    property, it became necessary to carry out appropriate
\n    amendments       and\/or     modifications         in      the       Development
\n    Plan.\n<\/p>\n
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\n                                          26<\/span><\/p>\n
    28.        There were two modes available to bring about
\n    such   a   change.       One   of     them   was      to       modify          the<\/p>\n
    reservation\/designation itself to include a commercial
\n    use of the suit property and the other one was to amend
\n    the said DCRs permitting such a commercial use of the<\/p>\n
    said large track of land, in addition to the use of the
\n    property for the purpose for which it was designated in<\/p>\n
    the Development Plan.\n<\/p>\n
               It appears that the State Government chose<\/p>\n
    the other option, viz. effecting amendment\/modification
\n    in the said DCRs. Consequently, the State Government<\/p>\n
    issued a direction under Section 154 of the MRTP Act,
\n    1960 to the said Corporation for taking appropriate<\/p>\n
    steps for effecting requisite amendment\/modification in
\n    Regulation   No.     9   of    the    said   DCR.     The       facts        will<\/p>\n
    indicate that inspite of such a direction of the State
\n    Government, the said Corporation did not take any steps<\/p>\n
    in that direction, within 60 days. Consequently, the
\n    State Government started the process of modification at
\n    its own level as contemplated by sub section (1A) of<\/p>\n
    Section 37 of the MRTP Act.\n<\/p>\n
    29.        As reflected by the aforesaid Chronology of
\n    Events, the State Government issued Public Notices, one<\/p>\n
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\n                                          27<\/span><\/p>\n
    in the English newspaper and the other one in Marathi<\/p>\n
    (i.e.   local        language)       newspaper         and       called           for
\n    objections. It has been brought on record by way of the<\/p>\n
    Affidavit     filed     by   Dy.    Director           of    Town       Planning
\n    Greater Mumbai, dated           7.1.2008 that only one objection
\n    from Prakash Chhabria and 41 others was received in<\/p>\n
    response to the aforesaid Public Notices.<\/p>\n
\n\n\n\n\n                                              \n    30.         The   Notification            in   issue     itself         mentions\n    that,   not    only     after\n                              ig       the     Deputy      Director         of      Town\n<\/pre>\n
    Planning, Greater Mumbai submitted its report to the
\n    Government        but        also         after        considering                the<\/p>\n
    suggestions\/objection received and after consulting the
\n    Director of Town Planning, Maharashtra State, the State<\/p>\n
    Government     has    issued       the     impugned      Notification               in
\n    exercise of powers conferred on it by sub section (2)<\/p>\n
    of Section 37 of the MRTP Act, 1960. This                       Notification
\n    dated   27.7.2006       is    impugned         by   the       present           Writ<\/p>\n
    Petition.\n<\/p>\n
    31.         The only ground on which the legality and\/or<\/p>\n
    validity of the impugned Notification is questioned by
\n    the present Writ Petition is that mandatory prescribed
\n    procedure has not been followed by the State Government
\n    while issuing the impugned Notification.\n<\/p>\n
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\n                                          28<\/span><\/p>\n
    32.         The      First    contention         of   the    petitioner            is
\n    that under Section 37 it is mandatory                       to consult the<\/p>\n
    Director        of   Town    Planning       before       issuing          such       a
\n    Notification and that the Director of Town Planning was
\n    not consulted.\n<\/p>\n
    33.         On the other hand               it is the contention of<\/p>\n
    the respondents that as a matter of fact the Director
\n    of Town Planning has been consulted before issuance of<\/p>\n
    impugned Notification and that it is accordingly stated
\n    in the impugned Notification itself.\n<\/p>\n
    34.         The impugned Notification specifically states<\/p>\n
    thus :\n<\/p>\n
                “And whereas, considering the suggestions \/<\/p>\n
                objections and after consulting Director of
\n                Town Planning, Maharashtra State, Government<\/p>\n
                is of the opinion that the said modification
\n                shall be sanctioned with some changes;”\n<\/p><\/blockquote>\n
                                                    (emphasis supplied)<\/p>\n<\/blockquote>\n
    35.        We    had   called    for      the    original       file       of     the
\n    State    Government          which     dealt      with      the       aforesaid
\n    Notification. Perusal of the file shows the Director of<\/p>\n
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\n                                          29<\/span><\/p>\n
    Town Planning was in fact consulted and that at page<\/p>\n
    number 309 of this file the remarks\/submissions of the
\n    said    Director     addressed       to     the    Principle            Secretary<\/p>\n
    Urban    Development       Department       can    be       found.        Thus        on
\n    verification of the record it does appear that in fact
\n    the     said     Director      was        consulted         by       the         State<\/p>\n
    Government. Therefore we do not find any substance in
\n    the said objection of the petitioner.\n<\/p><\/blockquote>\n
    36.            The   second contention of the petitioner is<\/p>\n
    that it was necessary for the State to serve Notice on
\n    all persons affected by the proposed modification and<\/p>\n
    that     the    proposed     modification          was        affecting             the
\n    petitioner (in as much as it was affecting the BEST<\/p>\n
    workers). According to the Petitioners such a Notice
\n    having been admittedly           not served on the petitioner,<\/p>\n
    the     impugned     Notification         has     been      issued          in      non
\n    compliance with the aforesaid mandatory provisions of<\/p>\n
    issuance of Notice to affected persons.\n<\/p>\n
    37.            The reply of the respondents is that firstly<\/p>\n
    public     notices      were    admittedly           issued            and        that
\n    therefore it was not necessary to issue separate notice
\n    to either the petitioner or any of the BEST workers.
\n    Secondly according to the Respondents in law such a<\/p>\n
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\n                                          30<\/span><\/p>\n
    notice is required to be served only on the “persons<\/p>\n
    affected” by the proposed modification. It is further
\n    submitted    that     neither      the     petitioner      nor       the      BEST<\/p>\n
    workers to whom the petitioner represents are “persons
\n    affected” by the proposed modification. It is therefore
\n    submitted that though admittedly no notice has been<\/p>\n
    specifically      served     on    the     petitioner      prior        to      the
\n    issuance    of    the    impugned     Notification,          it      will       not<\/p>\n
    render     the    impugned        Notification       invalid          for       non
\n    compliance with mandatory procedure.\n<\/p>\n
    38.         In as much as the second contention of the<\/p>\n
    petitioner       as     to   non    service     of      Notice         on       the
\n    petitioner       is   concerned,      sub     section      (1AA)        (a)      of<\/p>\n
    Section 37 of the MRTP Act, 1960, reads thus:\n<\/p>\n
                  “(1AA) (a) Notwithstanding anything<\/p>\n
          contained in sub-sections (1), (1A) and (2),
\n          where the State Government is satisfied that
\n          in the public interest it is necessary to
\n          carry out urgently a modification of any part
\n          of, or any proposal made in, a final<\/p>\n
          Development Plan of such a nature that it will
\n          not change the character of such Development
\n          Plan, the State Government may, on its own,
\n          publish a notice in the Official Gazette, and
\n          in such other manner as may be determined by
\n          it, inviting objections and suggestions from<\/p>\n
          any person with respect to the proposed
\n          modification not   later than one month from
\n          the date of such notice and shall also serve
\n          notice on all persons affected by the proposed
\n          modification and the Planning Authority.”\n<\/p><\/blockquote>\n
                                              (emphasis supplied)<\/p>\n
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\n                                            31<\/span><\/p>\n<\/blockquote>\n
    39.         A    bare   perusal       of    the    aforesaid             provision<\/p>\n
    clearly         demonstrates       that     the    State       Government              is
\n    required        to   issue    a    Public    Notice       in      the      Official<\/p>\n
    Gazette and in such other manner as may be determined
\n    by     it    for     inviting       objections      and      suggestions               in
\n    respect to the proposed modification. In addition to<\/p>\n
    such    a    Public      Notice,      the    law    requires           the       State
\n    Government         to   “also      serve”    Notice         on      all      persons<\/p>\n
    affected by the proposed modification.                         The term “also
\n    serve” clearly shows that in addition to Public Notice,<\/p>\n
    independent Notice is also required to be served on all
\n    persons affected by the proposed modification.<\/p><\/blockquote>\n
                We therefore hereby reject the contention of
\n    the respondents to the effect that the Public Notice<\/p>\n
    was admittedly issued, one in local language and one in
\n    English      language        in    widely   circulated          newspaper            and<\/p>\n
    that therefore it was not necessary to serve a separate
\n    Notice on the petitioner. If at all the petitioner can<\/p>\n
    satisfy that the petitioner was “person affected by the
\n    proposed modification” then obviously it was mandatory
\n    for the State Government to serve an independent Notice<\/p>\n
    on the petitioner             even though two Public Notices were
\n    issued in the local newspapers by the State Government.
\n    We therefore hold that mere issuance of Public Notice
\n    under       Section     37    of    the     MRTP    Act      is      not       enough<\/p>\n
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\n                                             32<\/span><\/p>\n
    compliance with the provisions of the said Act but in<\/p>\n
    addition        thereto     it     is     necessary           for        the       State
\n    Government       to    “also     serve”        notice       on      ‘all       persons<\/p>\n
    affected’ by the proposed modification.\n<\/p>\n
    40.        We    will     however        hasten        to      add       that        such<\/p>\n
    additional service of Notice is required to be effected
\n    only   on       “all     persons        affected”        by        the       proposed<\/p>\n
    modification       and     therefore         now    it      will      have       to     be
\n    determined as to whether the petitioner can be said to<\/p>\n
    be “person affected” by the proposed modification.\n<\/p>\n
    41.        In    regard     to    this        aspect     of       the      matter         a
\n    serious controversy is raised and arguments at length<\/p>\n
    were advanced before us by the contesting parties. The
\n    gist of the same is as under:-\n<\/p>\n
               It is the contention of the petitioner that it
\n    is a Recognised\/Approved Representative Union of the<\/p>\n
    Workers of the BEST and that one of the uses for which
\n    the    suit      property        has         been   designated                in      the
\n    Development Plan is housing for BEST workers. Therefore<\/p>\n
    according to the petitioner if any modification in the
\n    said Regulations were sought to be made whereby the use
\n    of the property in dispute was being permitted for a
\n    purpose       other       than     ‘housing         of        BEST         workers’,<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:42:40 :::<\/span>
\n                                       33<\/span><\/p>\n
    obviously, the BEST workers would be deprived of the<\/p>\n
    property reserved for the purposes of their housing and
\n    consequently the BEST workers were adversely affected<\/p>\n
    by such a Notification. As the petitioner was\/is the
\n    Representative     Approved\/Recognised            Union      of     the      BEST
\n    workers,    the   State     Government      ought     to      have       issued<\/p>\n
    Notice     at least to the petitioner union, if not to
\n    each and every BEST worker, in regard to the proposed<\/p>\n
    modification.\n<\/p>\n
    42.<\/p>\n
               Admittedly, such Notice not having been served
\n    either on the petitioner Union or on any one of the<\/p>\n
    BEST workers, in the submission of the petitioner the
\n    impugned Notification was issued in breach of mandatory<\/p>\n
    provisions of Section 37 of the MRTP Act, 1960.\n<\/p>\n
    43.        On the other hand, it is the contention of the
\n    respondents that neither the petitioner nor the BEST<\/p>\n
    workers as such can be said to be “persons affected” by
\n    the   proposed    modification.        It    is    submitted           by      the
\n    Respondents that the reservation i.e. designation of<\/p>\n
    the entire property including the suit property in the
\n    Development Plan was for various purposes, one of which
\n    was   housing.    It   is   not   that      the   suit      property           was
\n    itself separately and specifically reserved for housing<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                           34<\/span><\/p>\n
    of    BEST     workers.       It    was     further        submitted           that<\/p>\n
    admittedly out of the site so designated, large portion
\n    has already been used for providing housing to the BEST<\/p>\n
    workers by way of leasing out portion thereof to Ankur
\n    Co-operative        Housing        Society     formed       by      the        BEST
\n    workers. It was submitted by the Respondents that how<\/p>\n
    much portion of the entire                 designated site is to be
\n    used for a particular purpose for which it is reserved,<\/p>\n
    when many such purposes are collectively provided by
\n    such consolidated reservation was and has to be left to<\/p>\n
    the discretion of the BEST i.e. the management and that
\n    its workers cannot have any say in that regard. It was<\/p>\n
    also further contended by the Respondents that if at
\n    all any person was affected by such a modification, at<\/p>\n
    the highest it would be BEST itself and not the workers
\n    of the BEST. It was further contended that providing<\/p>\n
    housing to the workers was a privilege of the BEST and
\n    the workers had no right as such, to claim housing<\/p>\n
    accommodation.\n<\/p>\n
    44.          In    this   regard      reliance       was   placed         by     the<\/p>\n
    Respondents       on    the   Division       Bench    Judgment          of     this
\n    Court delivered in the case of PARISAR, an Organisation
\n    and   others      vs.   The   State    of    Maharashtra          and      others<\/a>
\n    reported in 1990(1) Bom.C.R. 79                wherein it is observed<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                     35<\/span><\/p>\n
    as under:\n<\/p>\n
                  “In our view, both the submissions
\n          made by Shri    Shivade    deserve     to    be
\n          rejected. So far as the general public is<\/p>\n
          concerned publication of notification in the
\n          Official Gazette    inviting   objections   and
\n          suggestions is enough. Individual notices are
\n          required to be served on the persons actually
\n          and   factually  affected   by   the   proposed
\n          modification. The expression used in this<\/p>\n
          behalf in the section is “and shall also serve
\n          notice on all persons affected by the proposed
\n          modification.”As regards the publication of
\n          notification in the two newspapers and the
\n          submission of the proposal by the planning<\/p>\n
          authority to the State Government within a
\n          week thereof, it is not possible to accept
\n          Shri Shivade’s argument in the absence of<\/p>\n
          evidence.”\n<\/p><\/blockquote>\n
                                         (emphasis supplied)<\/p>\n<\/blockquote>\n
    45.      It was therefore contended on behalf of the
\n    Respondents by relying on the aforesaid portion of the<\/p>\n
    observation on which we have supplied our emphasis that<\/p>\n
    such individual notices are required to be served only
\n    on the person who are “actually and factually affected”\n<\/p><\/blockquote>\n
    by the proposed modification and that since neither the<\/p>\n
    petitioner   nor   the   BEST   workers   were    ‘actually            and
\n    factually affected’ by the proposed modification, no
\n    Notice was   required to be served on either of them and<\/p>\n
    consequently for non service of such notice as claimed
\n    by the petitioner issuance of the impugned Notification
\n    cannot be faulted.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                    36<\/span><\/p>\n
    46.       It is submitted by the Respondents that the<\/p>\n
    term “person affected” must be given the same meaning
\n    as “person aggrieved” or “aggrieved party” as defined<\/p>\n
    in the Black’s Law Dictionary 8th Edition Page no. 1154
\n    which reads thus :-\n<\/p>\n
              “aggrieved”,adj.(of a person or entity)
\n              having legal rights that are adversely
\n              affected; having been     damaged by an
\n              infringement of legal rights.\n<\/p><\/blockquote>\n
              “aggrieved party” A party entitled to<\/p>\n
              a remedy; esp., a party whose personal,
\n              pecuniary,or property rights have been<\/p>\n
              adversely affected by another person’s
\n              actions or by a court’s decree or
\n              judgment-Also termed party aggreived;
\n              person aggreived [Cases: Action    -13;\n<\/p><\/blockquote>\n
              Appeal and Error – 15; Federal Civil
\n              Procedure – 103.2. C.J.S. Actions – 57-
\n              63; Appeal and Error – 168]<\/p>\n<\/blockquote>\n
    47.       We find     considerable force in the contentions<\/p>\n
    raised on behalf of the respondents in this regard. A<\/p>\n
    perusal of the MMC Act, 1888, will demonstrate that
\n    neither any legal right is created in favour of the<\/p>\n
    workers    of   the   BEST   nor    any   corresponding             legal
\n    obligation is cast on the BEST to provide housing to
\n    the workers of the BEST. Upon a specific query in that
\n    regard, the learned counsel appearing on behalf of the<\/p>\n
    petitioner was also unable to point out any provision
\n    of law creating any such right in favour of workers of
\n    BEST or any corresponding obligation cast on the BEST
\n    to provide housing to the workers of the BEST.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                            37<\/span><\/p>\n
    48.         A    feeble    attempt      however        was      made        by      the
\n    learned counsel appearing on behalf of the petitioner<\/p>\n
    to    spell      out   such     a   right     and\/or          obligation              by
\n    contending that the BEST has agreed to provide housing
\n    to    its   workers       in   terms    of   an    agreement            and\/or         a<\/p>\n
    settlement between the BEST and its workers. Neither
\n    any such agreement nor any such settlement has been<\/p>\n
    produced on record. We were not able to find out any
\n    specific        contention  ig to    this    effect          either         in      the
\n    petition or in any of the bulky rejoinders filed on
\n    behalf of the petitioner. Consequently, in absence of<\/p>\n
    any material on record, we are unable to accept the
\n    contention of the petitioner that either such a right<\/p>\n
    or such an obligation exist in law, on the basis of
\n    which it can be said that workers of the BEST have a<\/p>\n
    legal right enforceable against the BEST for providing
\n    housing accommodation to them.\n<\/p>\n
    49.             All workers\/employees do not acquire a right,
\n    merely on account of their employment, to claim housing<\/p>\n
    accommodation from their employer.                     Such a right has to
\n    be acquired by the employees\/workers in law.                              In other
\n    words,      unless        by    operation         of      some         law,         the
\n    employees\/workers acquire a right of claiming housing<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                            38<\/span><\/p>\n
    accommodation            from           their                employer,                  the<\/p>\n
    employees\/workers        do     not    get        a    right against                their
\n    employer to claim housing accommodation for themselves<\/p>\n
    only on account of their employment. In law, therefore,
\n    in absence of any condition of service or contract of
\n    service or rule\/regulation, it is always a privilege of<\/p>\n
    an     employer          to       provide              housing              to          its
\n    employees\/workers.\n<\/p>\n
    50.       Having come to a conclusion that there is no<\/p>\n
    legally enforceable right in favour of the BEST workers
\n    to    claim    housing        accommodation            from       the       BEST,         as<\/p>\n
    discussed herein         above,       it    cannot       be       said       that       the
\n    workers of the BEST are deprived of any property meant<\/p>\n
    for   providing    housing        to        the       BEST     workers           by     the
\n    impugned Notification\/modification. It cannot be said<\/p>\n
    that BEST workers are “affected” by such an action. In
\n    other words neither the BEST workers nor the petitioner<\/p>\n
    who   represents       them      are       “persons          affected”            by      an
\n    action, which results into user of a property meant for
\n    housing of BEST workers, for a purpose                                   other than<\/p>\n
    housing   of    BEST     workers.          Of     course       this        will        also
\n    include any step taken in that direction such as the
\n    change of user.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                    39<\/span><\/p>\n
    51.      In our view, inasmuch as the applicability of<\/p>\n
    the said provision of section 37 of the MRTP Act is
\n    concerned,   the    term    “person    interested”         will        not<\/p>\n
    include each and every person who may be “interested”
\n    in such a land as we say in the common parlance.                        In
\n    the context of Section 37 of the MRTP Act 1960, when we<\/p>\n
    refer to the term “person interested”, it always means
\n    a person having some right which is recognisable in<\/p>\n
    law, over or in respect of such a property in respect
\n    of which such an action under section 37 is taken.\n<\/p>\n
                              ig                                              A
\n    person who in common parlance is only “interested” in a
\n    land having no such right which is recognisable in law,<\/p>\n
    therefore, cannot be termed as a “person affected” by
\n    an action under section 37 of the MRTP Act, 1966.\n<\/p>\n
    52.     In as much as      the said DCRs are concerned, the<\/p>\n
    same are framed under Section 22(m) of the MRTP Act. It
\n    is now settled position of law that making of DCRs or<\/p>\n
    effecting amendments thereto is a legislative function
\n    and that Section 37 of the MRTP Act is to be used as
\n    repository   of    the   legislative   powers     for      effecting<\/p>\n
    amendment to the said DCRs. This legislative power of
\n    amending DCRs is delegated to the State Government. In
\n    this regard, reliance can be placed on the following
\n    two Judgments of the Supreme Court :\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                            40<\/span><\/p>\n
              1.Pune Municipal    Corporation & Anr.\n<\/p>\n
                vs.Promoters and Builders Association
\n                & Anr. Reported in [(2004) 10 SCC 796]
\n                (paragraph 5).\n<\/p>\n
              2.Promoters and Builders Association of
\n                Pune vs. Pune Municipal Corporation &
\n                Ors.<\/a> [(2007) 6 SCC 143].\n<\/p>\n
    53.        Consequently, we hold that by the modification
\n    and\/or    amendment      affected       by     the     Notification            dated
\n    27.7.2006 in issue neither the BEST workers nor the<\/p>\n
    petitioner who represents them has been affected and<\/p>\n
    therefore both of them do not fall within the category
\n    of “persons affected” as contemplated by the aforesaid<\/p>\n
    provisions of Section 37 of the MRTP Act, 1960.\n<\/p>\n
    54.        In    the     result,       we     hold     that        though          the<\/p>\n
    respondents were legally bound to serve notice on ‘all<\/p>\n
    persons    affected’       by    the        proposed    modification,                in
\n    addition    to    the    Public    Notice           issued    by     them,         the
\n    respondents      were     not    legally        bound        to    serve         such<\/p>\n
    separate notice of the proposed modification either on
\n    the   workers     of     the    BEST    or     on    the     petitioner            who
\n    represents       them,     while       effecting           modification             or<\/p>\n
    amendment vide Notification dated 27.7.2006 in issue.
\n    Obviously therefore for non service                     of such a notice
\n    it cannot be said that any procedural defect has crept
\n    in,   while      issuing       Notification          dated        27.7.2006          in<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                          41<\/span><\/p>\n
    issue.\n<\/p>\n
    55.        We are also supported in this regard by the<\/p>\n
    Judgment delivered by Division Bench of this Court in
\n    the case of PARISAR, an Organisation & Ors. (supra)
\n    whereby it has been specifically observed that under<\/p>\n
    Section      37       individual notices are required to be
\n    served     on     the    persons          “actually         and       factually<\/p>\n
    affected” by the proposed modification. As we have come
\n    to a conclusion that neither the BEST worker
\n                               ig                                            nor the
\n    petitioner      who     represents    them,      can      be     said       to     be
\n    “persons actually and factually affected” in the eyes<\/p>\n
    of law, by the proposed modification effected by the
\n    Notification dated 27.7.2006, the same cannot be said<\/p>\n
    to be defective on that count.\n<\/p>\n
    56.        It may not be out of place, in addition to the
\n    aforesaid legal aspect of the matter, to note herein<\/p>\n
    that in the said large track of land (of which the suit
\n    property    forms       part),   admittedly       following             portions
\n    have already been utilised for providing housing to the<\/p>\n
    BEST workers:\n<\/p>\n
               10425.00 sq. meters on Ankur Co-operative
\n               Housing Society (of BEST workers)
\n               33344.20      sq.   meters     BEST   Undertaking              Staff
\n               Housing.\n<\/p><\/blockquote>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                         42<\/span><\/p>\n
               3717.77      sq. meters BEST Undertaking Staff
\n               Housing.\n<\/p><\/blockquote>\n
    57.        As mentioned herein above, said the large track
\n    of land has been collectively and in a consolidated
\n    manner designated in the Development Plan for BEST Bus<\/p>\n
    Depot, Scrap Yard and Housing. The Development Plan
\n    does not specify         as to how much area out of the said
\n    large track of land is to be used for housing and how<\/p>\n
    much is to be used for other purposes set out in the
\n    designation.\n<\/p>\n
               Considering this aspect of the matter, it will<\/p>\n
    be for the BEST to decide as to what extent an area out
\n    of the said large track of land is to be used for the
\n    aforesaid    three      purposes    for    which    the      entire         said<\/p>\n
    large   track      of    land      has     been    designated            in      a<\/p>\n
    consolidated       manner.      Having      admittedly           used         the
\n    aforesaid portions of the land out of the very same
\n    said large track of land for housing, it cannot be said<\/p>\n
    that in law the BEST was duty bound to use the suit
\n    property    also     only    and    only    for    housing        the       BEST
\n    workers. In other words neither the BEST workers nor<\/p>\n
    the petitioner in law are entitled to compel the BEST
\n    to use the suit property only and only for the purpose
\n    of providing housing to the BEST workers and not for
\n    any other purpose.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                        43<\/span><\/p>\n
    58.      It has also been brought on record on behalf of
\n    the BEST that the BEST has constructed 52 buildings for<\/p>\n
    BEST Staff Quarters which consist of 1,353 tenements,
\n    in the West Zone area. It is             stated in this affidavit
\n    dated 29.2.2008 that out of these 1,353 tenements, 165<\/p>\n
    tenements were lying vacant. In as much as South Zone
\n    is concerned, this affidavit states that there are                            28<\/p>\n
    buildings for BEST Staff Quarters consisting of 1,373
\n    tenements, out of which   ig       1 tenement was still vacant.
\n    In regard to the North East Zone, this affidavit states
\n    that    there    are    42   buildings      comprising          of      1,424<\/p>\n
    tenements, out of which 33 tenements were                 vacant. This
\n    affidavit further states that there are 7 MHADA Staff<\/p>\n
    Quarters for BEST Staff consisting of 608 tenements,
\n    out of which 8 tenements were still vacant. The affiant<\/p>\n
    of the aforesaid affidavit therefore has categorically
\n    emphasised that on the date of filing of the Affidavit<\/p>\n
    total    207    tenements    were       laying   vacant         and       were
\n    available for BEST Staff\/Employees and has given the
\n    detailed Zone wise break up of these vacant tenements<\/p>\n
    in this affidavit.\n<\/p>\n
    59.      In     the    Rejoinder    dated    25.3.2008          filed        on
\n    behalf of the petitioner in response to the aforesaid<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                              44<\/span><\/p>\n
    affidavit,         it    is    stated     in   paragraph       7     that           164<\/span><\/p>\n
    tenements were lying vacant in Santacruz                           area because
\n    they were not habitable and were not repaired for a<\/p>\n
    long time. It is contended that the tenements at Kurla
\n    were    actually           got     vacated       by     BEST        itself          for
\n    redevelopment. This rejoinder insists that there was<\/p>\n
    still       long    waiting      list     of    208   employees           who       are
\n    awaiting for the allotment of service quarters. Be that<\/p>\n
    as it may.\n<\/p>\n
    60.<\/p>\n
                 If there are service quarters available which
\n    can     not        be      occupied       for     want         of       requisite<\/p>\n
    repairs\/maintenance the remedy for the petitioner is to
\n    get the same repaired and\/or properly maintained by the<\/p>\n
    BEST so that the same become habitable and available
\n    for the BEST workers. The facts will remain that though<\/p>\n
    there does not appear to be any legal obligation cast
\n    on the BEST to provide housing to its staff\/workers it<\/p>\n
    has    in    fact       made     the     aforesaid      provision          to     make
\n    housing accommodation available to its workers\/staff.\n<\/p>\n
                 In    view of this and such other aspects of the<\/p>\n
    matter set out herein above, it cannot be said that by
\n    putting the suit property to a use other than providing
\n    housing       to    its       workers,    BEST    has    “factually                 and
\n    actually” affected its workers.                       On this additional<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                        45<\/span><\/p>\n
    ground also, even on facts apart from the aforesaid<\/p>\n
    legal aspect of the matter, it cannot be said that
\n    either   the     BEST     workers        or   the      petitioner              who<\/p>\n
    represents      them     are      “persons       affected”           by        the
\n    Notification dated 27.7.2006 in issue.\n<\/p>\n
    61.           It is contended on behalf of the petitioner
\n    that the modification and\/or amendment effected by the<\/p>\n
    aforesaid exercise in issue was of substantial nature
\n    and, therefore, attracted section 22A (b) & (f) of the<\/p>\n
    MRTP   Act,    1966.      It   is,      therefore,      submitted            that
\n    modification so made being major modification and not<\/p>\n
    minor modification, the aforesaid action undertaken by
\n    the respondents by virtue of section 37 of the MRTP<\/p>\n
    Act, 1966 is unsustainable in law.\n<\/p>\n
    62.       First and foremost, this contention is not
\n    raised specifically by the petitioner in the present<\/p>\n
    proceedings.         There are no pleadings worth the name
\n    made by the petitioner in this regard.                 That apart, for
\n    the reasons set out hereunder, we do not find any force<\/p>\n
    in this contention.\n<\/p>\n
    63.      By    the     exercise    in    issue      performed          by      the
\n    respondents under section 37 of the MRTP Act, 1966, all<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                      46<\/span><\/p>\n
    that is done is that regulation no.9(iv)(c) and (d) of<\/p>\n
    the said DCRs has been modified by adding explanatory
\n    note   at    sr.    no.(v)   below    Table   4      contained             in<\/p>\n
    regulation 9 of the said DCRs.        This note reads thus:-\n<\/p>\n
                “(v) sites reserved for BEST Undertaking
\n                such as BEST Bus Depot, BEST Bus Station,
\n                BEST Terminus, BEST Bus Station and Staff<\/p>\n
                Quarters, BEST Bus Depot and Transport
\n                Carriage may be developed by the BEST
\n                Undertaking for the specified     purpose
\n                coupled with commercial user subject to
\n                the following conditions:-\n<\/p><\/blockquote>\n
                (a)     The   built   up   area   of   such\n                commercial user shall\n                            ig           not    exceed 30%\n                of the total permissible floor area.\n                (b)      Out of such permissible commercial\n                user 50%         built-up     area      not\n                          \n                exceeding    of   the   total   permissible\n<\/pre>\n
                commercial user may be permitting on the
\n                ground floor. While remaining floor area
\n                for commercial user may be permitted on
\n                the upper floor.\n<\/p><\/blockquote>\n
                (c)     Extent of built-up area proposed
\n                to be used for commercial purpose shall<\/p>\n
                be such that it does not adversely affect
\n                the principal user.\n<\/p><\/blockquote>\n
                (d)     The proposal for such composite\n                user shall be   cleared  by    Additional\n\n\n\n\n\n<\/pre>\n
                Commissioner of Police (Transport),
\n                Mumbai.\n<\/p><\/blockquote>\n
                (e)     Considering the strategic location
\n                of reserved sites with reference to the
\n                volume and nature of the traffic in the<\/p>\n
                vicinity of the reserved site,Municipal
\n                Commissioner shall have right to prescribe
\n                additional condition as deemed fit and
\n                also restrict the commercial area to the
\n                        justifiable extent.\n<\/p><\/blockquote>\n
                (f)      Provision    for separate parking\n                shall    have  to     be  provided as  per\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 13:42:41 :::<\/span>\n                                      47<\/span>\n\n              prevailing norms in such a way that    it\n<\/pre>\n
              does not affect movement of BEST buses as<\/p>\n
              well as the traffic of road.\n<\/p><\/blockquote>\n
              (g)     the above commercial user shall be<\/p>\n
              permitted on plot having area of 2000 sq.
\n              mtr. & above.\n<\/p><\/blockquote>\n
              (h)     If   there   is  any  storage   of
\n              diesel\/petrol or any explosive material on
\n              the plot, then the above commercial user<\/p>\n
              is permissible by maintaining segregating
\n              distance between them as decided by the
\n              Chief Fire Officer.”\n<\/p><\/blockquote>\n
    64.            Thus, by the action taken under section 37<\/p>\n
    of the MRTP Act, 1966, all that the respondents have
\n    done is that a note is added at sr. no.(v) below Table<\/p>\n
    4 contained in regulation 9 of the said DCRs.                          This
\n    explanatory note which is added deals with only and
\n    only ‘the sites reserved for BEST Undertaking’ which<\/p>\n
    are obviously very few in the entire development plan<\/p>\n
    of the city of Mumbai.         As compared to the entire area
\n    covered   by   the development plan      as    also       by     various
\n    reservations made therein, the area covered by such<\/p>\n
    reservations meant for BEST Undertaking is very very
\n    small. It is obvious that addition of the aforesaid
\n    explanatory note is going to affect only the sites that<\/p>\n
    are   reserved    for   BEST    undertaking    only.         Thus        the
\n    modification so made by adding explanatory note no.(v)
\n    below Table 4 contained in regulation 9 of the said
\n    DCRs can by no stretch of imagination bring in any<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 13:42:41 :::<\/span>
\n                                     48<\/span><\/p>\n
    change and\/or modification and\/or amendment in either<\/p>\n
    in the entire development plan as such or such change
\n    which is contemplated by the section 22A – (b) & (f) of<\/p>\n
    the MRTP Act, 1966.        Obviously, therefore, for such a
\n    modification and\/or amendment, it cannot be said that
\n    the provisions of section 22A – (b) & (f) of the MRTP<\/p>\n
    Act   are    attracted,   as   contended   by     the      petitioner.
\n    These provisions read thus:-\n<\/p>\n
          “22A.    In section 29 or 31, the expression
\n          “of a substnatial nature” used in relation to<\/p>\n
          the   modifications   made   by   the   Planning
\n          Authority or the officer appointed by the
\n          State Government under sub-section (4) of
\n          section 21 (hereinafter referred to as ” the<\/p>\n
          said Officer”) or the State Government, as the
\n          case may be, in the Draft Development Plan
\n          means,-\n<\/p><\/blockquote>\n
          (a)   ……\n<\/p><\/blockquote>\n
          (b)all changes which result in the aggregate<\/p>\n
          to a reduction of any public amenity by more
\n          than ten per cent of the area provided in the
\n          planning unit or sector in a draft Development<\/p>\n
          Plan prepared and published under section 26
\n          or published with modification under section
\n          29 or 31, as the case may be;\n<\/p><\/blockquote>\n
          (c) ..\n<\/p><\/blockquote>\n
          (d) ..\n<\/p><\/blockquote>\n
          (e) ..\n<\/p><\/blockquote>\n
          (f)alternation in the Floor Space Index beyond
\n          ten per cent of the Floor Space Index
\n          prescribed    in   the    development    Control
\n          Regulations   prepared   and   published   under
\n          section 26 or published with modification<\/p>\n
          under section 29 o4 31, as the case may be.\n<\/p><\/blockquote>\n
    65.         The   petitioner   has   not   raised           any        other
\n    contention in regard to the legality and\/or validity of
\n    the    aforesaid      Notification    dated         27.7.2006              and<\/p>\n
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\n                                            49<\/span><\/p>\n
    therefore we have no reason to interfere with the same<\/p>\n
    and grant any relief in favour of the petitioner in
\n    this regard.\n<\/p>\n
    66.        POINT NO. 4 :- Whether “Plot No.2A” has been
\n               carved out in law as a separate plot or not:-\n<\/p>\n
               The answer to the aforesaid question is truly
\n    going to be the most decisive factor in this case,<\/p>\n
    which will be           clear from the contentions of both the
\n    sides that are set out hereunder.\n<\/p>\n
    67.        The said large track of land bearing CTS No. 1<\/p>\n
    (part) i.e. Survey No. 6 (Part) admeasures 1,54,082.40
\n    sq.   meters.          The    dispute       between    the        parties           is<\/p>\n
    restricted to only             an area admeasuring 27,913.93 sq.
\n    meters out of the said large track of land and is being<\/p>\n
    referred to in this judgment as the “suit property”.\n<\/p>\n
    68.        The       contentions      raised   by     the    petitioner             in
\n    regard to this aspect of the matter in short are as
\n    under:-\n<\/p>\n
               A     Lay    Out    Plan     was    prepared       by      the       BEST\n    dividing       the     said   large    track    of    land     into       various\n<\/pre>\n
    plots. This lay out was sanctioned on 23.10.1989. In
\n    this sanctioned lay out plan the suit property has been<\/p>\n
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\n                                             50<\/span><\/p>\n
    marked and\/or numbered as “Plot No.2\/A”. As the suit<\/p>\n
    property has been separately carved out in the form of
\n    a “separate plot” it will                    have to be treated as a<\/p>\n
    separate       plot   for     all       legal        purposes,           including
\n    calculation of FSI, applicability of DCRs and for all
\n    other aspects of the matter. In that event the entire<\/p>\n
    development      permitted         by    the        transaction          in      issue
\n    becomes    illegal,      in   as    much       as such         development            is<\/p>\n
    permitted only and only with reference to the total
\n    area of the said large track of land and not with<\/p>\n
    reference to the separate area of the suit property
\n    alone. In other words, the permitted Development in<\/p>\n
    issue     is    impermissible           under       the    DCRs,         including
\n    amended    and\/or     modified          DCR     No.9      if     the       same        is<\/p>\n
    considered in relation to the area of only and only the
\n    suit property and not the total area of the said large<\/p>\n
    tack of land (of which the suit property is only a
\n    small part).\n<\/p>\n
               In view of the defence of the Respondents to
\n    the     contrary,     rejoinders              have     been      filed        by     the
\n    petitioners      dated    25.1.2008           and    25.3.2008.           In these<\/p>\n
    rejoinders apart from the original petition a case is
\n    tried to be made out by the petitioner that by and
\n    under the orders of the then Municipal Commissioner
\n    dated 23.10.1989, the aforesaid large track of land has<\/p>\n
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\n                                           51<\/span><\/p>\n
    been sub divided into plots and a plan also has been<\/p>\n
    approved of this sub division bearing No. CE\/759\/LOP
\n    dated    23.10.1989,     a     copy    of    which       is     produced           on<\/p>\n
    record. This approved plan of sub division shows clear
\n    demarcation      of various plots prepared out of the said
\n    large track of land, in which the suit property has<\/p>\n
    been specifically shown\/marked as Plot No.2-A and is
\n    marked    as     reserved       for        “BEST     Undertaking             Staff<\/p>\n
    Housing”.\n<\/p>\n
              Even in the Agreement in issue dated 18.5.2007<\/p>\n
    the suit property has been described specifically as a
\n    separate plot carved out on account of the aforesaid<\/p>\n
    sub   division    of    the     original      large     track        of      land,
\n    sanctioned by the Municipal Commissioner on 23.10.1989.\n<\/p>\n
    In terms of DCR No. 21 preparation of a lay out for
\n    having sub division of plots is necessary when more<\/p>\n
    than one building is proposed to be constructed on the
\n    large    track   of    land.    Admittedly,        in    the      said       large<\/p>\n
    track of land various buildings have come up like that
\n    of Ankur Co-operative Housing Society, BEST Depot, etc.
\n    In law    it would not have been permissible to carry out<\/p>\n
    such activities on the portions of the aforesaid large
\n    track of land if the was not sub divided into plots.
\n    Therefore, in the submission of the Petitioners the
\n    fact that such activities were permitted shows that the<\/p>\n
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\n                                         52<\/span><\/p>\n
    said large track of land has already been sub divided<\/p>\n
    and that the suit property is a separate plot which has
\n    been    resultantly      carved     out   on    account       of     such       sub<\/p>\n
    division.\n<\/p>\n
    69.            It is further pointed out by the Petitioner<\/p>\n
    that even in the revenue records in regard to said
\n    large tract of land, an entry dated 21.6.1991 has been<\/p>\n
    effected whereby a separate property register card has
\n    been prepared in the name of Ankur Co-operative Housing<\/p>\n
    Society Limited to which an area of 10,425.0 sq. mtrs.
\n    Area has been leased out by the BEST.                      A copy of the<\/p>\n
    property register card is produced as Exh.3-A along
\n    with the affidavit-in-rejoinder dated 25.1.2008 filed<\/p>\n
    on behalf of the petitioner.                   On this basis, it is
\n    contended that the said large tract of land is not<\/p>\n
    continued as one piece and\/or one plot, but has been
\n    sub-divided.\n<\/p>\n
              It is further pointed out by the Petitioner
\n    that    even    a     proposal    bearing      no.   CHE\/1229\/LOP               for
\n    amalgamation of all the sub-plots of the said large<\/p>\n
    tract    of    land    has   been    submitted       and     that       such       a
\n    proposal for amalgamation itself demonstrates that the
\n    said large tract of land has been sub-divided and that,
\n    only therefore, a need was felt to submit a proposal<\/p>\n
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\n                                             53<\/span><\/p>\n
    for amalgamation.\n<\/p>\n
    70.                  On the basis of these factual aspects of<\/p>\n
    the matter, the contention of the petitioner is that
\n    the said large tract of land has been sub-divided into
\n    various sub-plots and that the suit property is one of<\/p>\n
    such plots carved out of the said large tract of land
\n    and is a separate plot bearing “plot no.2-A”, which is<\/p>\n
    the suit property.\n<\/p>\n
    71.<\/p>\n
                         On the other hand, the respondents have
\n    stoutly denied the contentions of the petitioner in<\/p>\n
    this regard and it is claimed that the said large tract
\n    of land, in law, has not been sub-divided and continues<\/p>\n
    to be a contiguous single piece of land.                        In as much as
\n    the   allegations           of    the     petitioner        that        the        suit<\/p>\n
    property        is    a    separate     plot        is   concerned,           it      is
\n    contended that only for identification purposes, the<\/p>\n
    area of the suit property is marked as “plot no.2-A”
\n    and not as a result of legal, authentic and authorized
\n    sub-division in terms of the MRTP Act, 1966 creating a<\/p>\n
    separate plot out of the said large tract of land.\n<\/p>\n
               It    is       the   defense      that    though      there        was      a
\n    proposal by way of lay-out plan for sub-dividing the
\n    said large tract of land, by letter dated 23.10.1989<\/p>\n
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\n                                            54<\/span><\/p>\n
    bearing no. CE\/579\/LOP, the said proposal was made only<\/p>\n
    approvable as per the DCRs., subject to the terms and
\n    conditions indicated therein. It is further submitted<\/p>\n
    that    by    such    order      the         lay-out          was     only         made
\n    “approvable” and that by that order the lay out was not
\n    “approved” as such. The final approval to such a lay-\n<\/p>\n
    out or the sub-division was to be accorded after the
\n    conditions of construction of internal roads, including<\/p>\n
    lighting, sewerage, drainage, etc., was completed and
\n    spaces for recreation amenities were developed by BEST<\/p>\n
    as was provided in the proposal for sub-division.                                      It
\n    is, therefore, contended that since these conditions<\/p>\n
    set out in the letter dated 23.10.1989 were not and
\n    have not been fulfilled by the BEST, the permission for<\/p>\n
    lay-out\/sub-division           never        fructified         into      effecting
\n    legal sub-division of the said large tract of land and<\/p>\n
    the    same   remained    pending           at    the    stage      of      only       an
\n    “approvable     lay-out”,        which           has    not    resulted            into<\/p>\n
    creation of a separate sub-plot i.e. the suit property.\n<\/p>\n
    72.             It is further the case of the respondents<\/p>\n
    that in law, sub-division of land requires not only
\n    sub-division     in      the     Municipal              records,         but       also
\n    corresponding sub-division of records maintained by the
\n    Collector     under   the       Maharashtra             Land     Revenue           Code<\/p>\n
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\n                                           55<\/span><\/p>\n
    resulting         into     preparation        of        separate           property<\/p>\n
    register cards with new city survey numbers assigned to
\n    each    sub-division          so   made.      In        the     present          case,<\/p>\n
    admittedly, no such separate record has been prepared
\n    and\/or maintained by the Collector in regard to the
\n    suit    property.        On   this   ground    also           the    respondents<\/p>\n
    contend that the suit property is not and can not be
\n    treated      as     a     separate     plot        as     claimed           by      the<\/p>\n
    petitioner.\n<\/p>\n
    73.<\/p>\n
                  Section 2(21) of the MRTP Act, 1966 defines
\n    the term “plot” thus:-\n<\/p>\n
                “(21) “plot” means a portion of land held in
\n                one ownership   and numbered and shown as one
\n                plot in a town planning scheme;”\n<\/p><\/blockquote>\n
                             Admittedly, the suit property does not<\/p>\n
    fall within this definition even if the case of the
\n    petitioner is accepted at its face value.                            Admittedly,<\/p>\n
    the suit property is not numbered and shown as one plot
\n    in    the   town    planning       scheme.    In        terms       of    the      town
\n    planning scheme the suit property is still a part of<\/p>\n
    City Survey No. 1 equivalent to part of Survey No. 6.\n<\/p><\/blockquote>\n
    Consequently, the suit property cannot be termed as “a
\n    plot” as defined by the MRPT Act, 1966.\n<\/p>\n
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\n                                      56<\/span><\/p>\n
    74.      The contention of the petitioner is factually<\/p>\n
    correct that not      only in the tender notice (exh.`C’ to
\n    the petition), but also in the agreement in issue dated<\/p>\n
    18.5.2007,     the    suit     property        is       referred             to
\n    specifically as ‘plot no.2-A’ and it is also stated
\n    therein that the same is ‘a sub-divided plot of land’<\/p>\n
    out of a large tract of land bearing C.T.S. no.1(Pt.),
\n    survey   no.6(Pt.)    of     village       Goregaon     and       that        it<\/p>\n
    admeasures 27,913.92 sq. mtrs.\n<\/p>\n
             However, only because the documents issued by<\/p>\n
    BEST and\/or executed by BEST refer to the suit property
\n    as a “sub-divided plot” it does not necessarily mean<\/p>\n
    that in law also the suit property is a “sub-divided
\n    plot”.   The suit property will be considered in law as<\/p>\n
    a   separate   plot   resulted        on   account     of     sanctioned
\n    and\/or approved sub-division of the said large tract of<\/p>\n
    land in issue only and only if the alleged sub-division
\n    of the said large tract of land is approved and\/or<\/p>\n
    sanctioned in accordance with law.             Otherwise, the suit
\n    property will continue to be only and only a part of
\n    the said large tract of land as one piece and will not<\/p>\n
    have an separate identity as “a plot”.\n<\/p>\n
    75.          Though the petitioner has heavily relied on
\n    the order dated 23.10.1989 as an order resulting into<\/p>\n
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\n                                        57<\/span><\/p>\n
    approval\/sanction       of   the   lay-out\/sub-division               of      the<\/p>\n
    said large tract of land, unfortunately, even a copy
\n    thereof       was     not    produced    on    record             for        our<\/p>\n
    consideration by the petitioner.              What the petitioner
\n    has produced on record is only the lay-out plan which
\n    no    doubt   marks    the   suit property as          ‘plot        no.2-A’.\n<\/p>\n
    However, mere marking on the lay-out plan of the suit
\n    property as ‘plot no.2-A’ will not make it a separate<\/p>\n
    and    independent      plot,especially       in       terms         of       the
\n    applicability of the said DCRs.\n<\/p>\n
                                 ig               This is more so in
\n    view of the specific defense of the respondents that
\n    the said order dated 23.10.1989 on which reliance is<\/p>\n
    placed by the petitioner is only a conditional order
\n    whereunder the sub-division of the said large tract of<\/p>\n
    land     in   issue    became   only    “approvable”,             that        too
\n    conditionally. The copy of this order is produced by<\/p>\n
    the 4th Respondent, the BEST, along with an affidavit
\n    dated 1st March 2008. The opening sentence thereof reads<\/p>\n
    thus :\n<\/p>\n
           ”    Your     plans    submitted     of    the
\n           layouts\/subdivision of above plot along with
\n           your letter dtd. 4.7.89 are approvable as they
\n           are as per Development Control Rules, subject<\/p>\n
           to the terms and conditions already intimated
\n           to you as per previous approval.”\n<\/p>\n
              The petitioner has not satisfied us as to what
\n    were these terms and conditions and as to whether such<\/p>\n
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\n                                         58<\/span><\/p>\n
    conditions were\/are in fact satisfied or not so that it<\/p>\n
    could be said that the layout in issue has been finally
\n    approved. The petitioner ought to have produced enough<\/p>\n
    material on record to show that either by order dated
\n    23.10.1989       sanctioning\/approving          the     lay-out          of      the
\n    said large tract of land was approved unconditionally<\/p>\n
    or that the conditions,if any, subject to which such
\n    lay   out    (resulting      into   sub-division          of      said       large<\/p>\n
    tract of land) was made approvable, are\/were in fact
\n    fulfilled,       enabling  igus   in     fact   and    law      to      draw       an
\n    inference that the large tract of land has been sub-
\n    divided creating the suit property as a separate plot.\n<\/p>\n
                On the basis of whatever material available on
\n    record,     it    does   appear     that    the   proposal           for      sub-\n<\/p>\n
    division of the said large tract of land in terms of
\n    the proposed lay-out was made only approvable, that too<\/p>\n
    conditionally, by the said letter dated 23.10.1989. In
\n    absence of final approval it will not be possible for<\/p>\n
    us to conclude and consequently hold that the aforesaid
\n    layout has been approved and that such approval has
\n    resulted into effecting sub-devisions of the said large<\/p>\n
    track of land creating the suit property as a “separate
\n    plot” in law and in fact.\n<\/p>\n
    76.              Moreover,     the revenue record of the said<\/p>\n
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\n                                      59<\/span><\/p>\n
    large tract of land in issue also does not reflect any<\/p>\n
    such sub-division of the same.           Admittedly, the suit
\n    property does not have a separate property register<\/p>\n
    card drawn up by the Collector enabling us to hold that
\n    the suit property is a separate plot created on account
\n    of approved legal sub-division of the said large tract<\/p>\n
    of land.     Mere marking of the suit property as “plot
\n    no.2-A” on the plans of the BEST or mere references to<\/p>\n
    the suit property made in various documents of BEST as
\n    “a    sub-divided   plotig no.2-A”    will    not   make       the      suit
\n    property ‘a plot’.         In our view, such marking and\/or
\n    references are found in the record only for the purpose<\/p>\n
    of    identification       of   the   exact     location            and\/or
\n    situation of the suit property forming part of the said<\/p>\n
    large tract of land in issue admeasuring 1,54,082.42
\n    sq. mtrs.     It appears to us that for the purpose of<\/p>\n
    convenience of identification of the area alone, the
\n    suit property is addressed and referred throughout by<\/p>\n
    the    BEST as “plot no.2-A”.\n<\/p>\n
    77.          It is also pertinent to note that though a<\/p>\n
    separate property register card was prepared in the
\n    revenue records in regard to the property leased out to
\n    Ankur Co-operative Housing Society Ltd., that has not
\n    resulted into actual sub-division of the said large<\/p>\n
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\n                                          60<\/span><\/p>\n
    tract of land.          This is principally because though a<\/p>\n
    lease      was    created   in     favour    of    Ankur       Co-operative
\n    Housing Society Ltd., the lessor of the land continued<\/p>\n
    to be the BEST. As there was no severance of ownership
\n    of the said large tract of land the same has continued
\n    to    remain       undivided.      Mere   creation       of     a     separate<\/p>\n
    property         register   card    in    the     name    of      Ankur        Co-
\n    operative Housing Society Ltd., in law has not resulted<\/p>\n
    into effecting of sub-division of the said large tract
\n    of land.\n<\/p>\n
    78.         We, therefore, conclude that the suit property<\/p>\n
    is not a separate plot as defined by section 2(21) of
\n    the MRTP Act, 1966 and cannot be considered for the<\/p>\n
    purpose of this petition as an independent and separate
\n    piece of land inasmuch as the applicability of DCRs is<\/p>\n
    concerned.         In other words, the suit property will have
\n    to    be    considered      in     law,     for   all     the       purposes,<\/p>\n
    especially for the applicability of DCRs, as a portion
\n    of one single piece of large tract of land admeasuring
\n    1,54,082.42 sq. mtrs.\n<\/p>\n
    79.         POINT NO.6 :     Legality of the permissions
\n                granted for the development that is being
\n                carried out at the suit plot by the 7th
\n                Respondent :-\n<\/p>\n
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\n                                             61<\/span><\/p>\n
                This issue is truly a fall out of the earlier<\/p>\n
    issue framed and answered hereinabove which deals with
\n    the question as to whether the suit property is in law<\/p>\n
    a “separate plot” or not.\n<\/p>\n
    80.         It is the contention of the petitioner that the<\/p>\n
    suit    property        is   a    separate    plot    which        admeasures
\n    27,913.93 sq. mtrs. and is carved out of the said large<\/p>\n
    tract of land admeasuring 1,54,082.40 sq. mtrs.                           On the
\n    basis       of   this    contention,
\n                                  ig             the    petitioner           further
\n    submits that for the purpose of determining the extent
\n    to which development and\/or construction is permissible<\/p>\n
    ( which can be carried out) on the suit plot, the area
\n    of    the    plot   should       be    considered    only     and      only       as<\/p>\n
    27,913.93 sq. mtrs. i.e., the suit property and not
\n    1,54,082.40 sq. mtrs. i.e.,                  the said large tract of<\/p>\n
    land.\n<\/p>\n
    81.         Admittedly,          the   requisite    permissions           and\/or
\n    sanctions and\/or approvals have been granted in favour
\n    of the 7th respondent developer by the said corporation<\/p>\n
    and\/or other competent authorities in terms of the said
\n    DCRs by considering the said large tract of land as one
\n    single plot\/unit admeasuring 1,54,082.40 sq. mtrs and
\n    not by considering the suit property as a separate<\/p>\n
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\n                                            62<\/span><\/p>\n
    plot\/unit admeasuring 27,913.93 sq. mtrs.                         Therefore,<\/p>\n
    if we come to the conclusion that the suit property is
\n    a        separate         plot,             obviously,          all            the<\/p>\n
    permissions\/sanctions\/approvals                granted      for       carrying
\n    out developmental activities on the suit property will
\n    be contrary to the said DCRs and thus impermissible in<\/p>\n
    law.\n<\/p>\n
    82.       However,       in    terms    of    the   aforesaid         detailed
\n    discussions made and conclusions drawn by us, we will<\/p>\n
    have to proceed on the basis that the suit property is
\n    not a separate plot as contemplated in law (and as<\/p>\n
    contended by the petitioner) and that it is only a
\n    portion of the said large tract of land (as is the case<\/p>\n
    of       the     respondents).               Obviously,         appropriate
\n    calculations for applicability of the said DCRs will<\/p>\n
    have to be made on the basis that the suit property is
\n    a    undivided    part    of    the     said    large     track       of     land<\/p>\n
    admeasuring 1,54,082.40 sq. mtrs.\n<\/p>\n
    83.       In as much as the issue of permissibility of<\/p>\n
    extent     of    construction          at    the    hands       of     the       7th
\n    Respondent is concerned, firstly, it is the                            case of
\n    the    petitioner    that       the    permissible        FSI     and       other
\n    calculations in that regard are required to be made on<\/p>\n
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\n                                             63<\/span><\/p>\n
    the basis that the suit property is a separate plot. We<\/p>\n
    have    however      herein       above      by    a    detailed        reasoning
\n    rejected this contention of the petitioner that the<\/p>\n
    suit     property      is    a     separate        plot.      We      have        held
\n    hereinabove that the same is a part and parcel of an
\n    undivided       said    large          track       of    land       admeasuring<\/p>\n
    1,54,082.40 sq. meters.\n<\/p>\n
    84.          It was in the alternative submitted on behalf
\n    of the petitioner that in case if we hold that the suit<\/p>\n
    property is not a separate plot but is an undivided
\n    portion of said large track of land, even then the<\/p>\n
    permission      granted      to    the       7th   Respondent        to     put      up
\n    construction to the extent of 38,653.51 sq. meters is<\/p>\n
    far in excess of the legally permissible limits even
\n    under the amended DCRs.                In this regard, our attention<\/p>\n
    was drawn by the learned counsel appearing on behalf of
\n    the     petitioner      to       the    contentions         raised         by      the<\/p>\n
    petitioner on pages 25 and 29 of the writ petition and
\n    calculations given in the affidavit in reply filed on
\n    behalf of the 2nd Respondent, said Corporation dated<\/p>\n
    16.6.2008. Relying on the very same calculations given
\n    by     the    said   Corporation,            it    is   contended           by     the
\n    petitioner that the balance permissible FSI works out
\n    to 83,920.07 sq. meters and that 30% of the same works<\/p>\n
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\n                                                  64<\/span><\/p>\n
    out    to     only       24,900        sq.     meters          and        therefore           the<\/p>\n
    permission         granted       to     the       7th    respondent             to      put     up
\n    construction to the extent of 38,653.51 sq. meters                                              is<\/p>\n
    far in excess of permissible limits.\n<\/p>\n
    85.          It    was        further    submitted              on      behalf         of     the<\/p>\n
    petitioner that even under the amended DCRs i.e. DCR
\n    No. 9       the sites which were open and vacant alone are<\/p>\n
    to    be    considered          and therefore                 the    areas        which        are
\n    already       used       by    putting
\n                                     ig           up    scrap           yard,      bus       depot,
\n    service       quarters          and\/or        Ankur           Co-operative             Housing
\n    Society       from and out of the said large track of land<\/p>\n
    will have to be executed. In the submission of the
\n    petitioner therefore even if for the sake of argument<\/p>\n
    the suit property is not considered as a separate plot
\n    and it is considered as an undivided portion of the<\/p>\n
    said       large       track    of    land,        the    FSI        permitted           to     be
\n    utilised by the 7th respondent at the suit property of<\/p>\n
    30,653.51          sq.        meters     is        far        in      excess          of      the
\n    permissible limits in law and that on this ground also
\n    the    agreement          in         issue,        the        resolution           in      issue<\/p>\n
    passed            by      the          BEST             and         the          consequent
\n    permissions\/approvals granted to the 7th respondent are
\n    liable to be quashed and set aside.\n<\/p>\n
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\n                                    65<\/span><\/p>\n
    86.      On the contrary on behalf of the respondents it<\/p>\n
    is contended that the true and correct interpretation
\n    of     Explanation     No.(v)introduced              by         way          of<\/p>\n
    amendment\/modification in issue           effected in DCR No. 9,
\n    will show that the area to be considered is not just
\n    open\/vacant area out of the said large track of land,<\/p>\n
    but   total   permissible   area    out    of    the       entire         site
\n    reserved for BEST Undertaking.           Our attention has been<\/p>\n
    drawn to the calculations set out in the affidavit of
\n    the BEST dated 30.11.2007, particularly, in paragraphs<\/p>\n
    9 and 11 thereof. On that basis, it is contended that
\n    30% of the total permissible built up area (1,28,845.04<\/p>\n
    sq meters) works out to 38,653.51 sq. meters and that
\n    accordingly permissions\/approvals have been granted to<\/p>\n
    the 7th respondent and that therefore this court may not
\n    interfere with the same.\n<\/p>\n
    87.      Admittedly   in    terms   of     DCR     32(3),         the      FSI<\/p>\n
    permissible at the suit property is one. In as much as
\n    the interpretation of Amended DCR No. 9 is concerned,
\n    the amended portion, viz. Explanation (v) is already<\/p>\n
    set out by us herein above. A perusal of the same
\n    demonstrates that it deals with “sites reserved for
\n    BEST Undertaking” and development of such sites by the
\n    BEST Undertaking for the specified purpose coupled with<\/p>\n
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\n                                              66<\/span><\/p>\n
    commercial      user        thereof.          Obviously,         therefore            the<\/p>\n
    contention of the petitioner that the calculations of
\n    FSI will have to be made by taking into consideration<\/p>\n
    only open\/vacant area out of the said large track of
\n    land    is     not        correct.      There        is     nothing         in       this
\n    explanation          which      can      possibly           warrant          such         a<\/p>\n
    restrictive interpretation of the said provision. For
\n    the purposes of calculating FSI and for other purposes<\/p>\n
    of calculations set out in the aforesaid Explanation
\n    No. (v) the entire area of “sites reserved for BEST<\/p>\n
    Undertaking”         will       have     to     be        considered.           If      so
\n    considered, the area of the entire said large track of<\/p>\n
    land    i.e.    1,54,082.40            sq.    meters       will      have        to     be
\n    considered as the basis for the requisite calculations,<\/p>\n
    as this entire area (and not just the suit property) is
\n    ‘a     site    reserved         for     the     Best        Undertaking’.               We<\/p>\n
    therefore reject the contention of the petitioner to
\n    the contrary and hold that for the purpose of all the<\/p>\n
    calculations         to    be   made     for    determining            permissible
\n    development at the suit property, area to be considered
\n    as basis will be the total area of the said large track<\/p>\n
    of land i.e. 1,54,082.40 sq. meters and not just the
\n    area of the suit property i.e.27,913.93 sq. mtrs.\n<\/p>\n
    88.       Now, in as much as splitting of the aforesaid<\/p>\n
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\n                                            67<\/span><\/p>\n
    area is concerned, fortunately, there is no dispute as<\/p>\n
    to the area which are actually used for putting up bus
\n    depot, scrap yard, staff housing and Ankur Co-operative<\/p>\n
    Housing     Society.           There    is    also     no     dispute          about
\n    balance area which is lying vacant. On the basis of
\n    these admitted facts and figures, calculations works<\/p>\n
    out as under:-\n<\/p>\n
               Area to be excluded :<\/p>\n
              2,500.00 sq. mts.              Area handed over to the said Corporation
\n            22,737.36 sq. mts.     ig        15% Recreation Ground<\/p>\n
               Net area of the plot after aforesaid exclusion
\n    works   out      to    1,28,845.04      sq.     mts.     And      30%      of      the<\/p>\n
    aforesaid 1,28,845.04 sq. mts. works out to 38,653.51
\n    sq. mts., which is permitted to be developed by the 7th<\/p>\n
    Respondent.<\/p>\n
\n         \n\n\n\n               Area so far consumed by the BEST\n\n                  37,061.77 sq. mts.                       Staff Housing\n\n\n\n\n\n                   5,025.01 sq. mts.                       Scrap Yard\n                   7,557.05 sq. mts                      Goregaon Bus Depot\n                   6,540.75 sq. mts.                     Oshiwara Bus Depot\n\n               The     total      area   thus    consumed       is      1,26,168.47\n\n\n\n\n\n<\/pre>\n
    sq.mts., which leaves the BEST with 27,913.93 sq.mts
\n    i.e. suit property.\n<\/p>\n
    89.        In regard to the aforesaid calculations, it is<\/p>\n
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\n                                            68<\/span><\/p>\n
    worthwhile to note that sub clause (a) of the aforesaid<\/p>\n
    Explanation          No.      (v)          introduced            by         way         of
\n    modification\/amendment of the DCR No. 9 shows that the<\/p>\n
    built up area for commercial user is not to exceed 30%
\n    of     the    “total      permissible        floor       area”.          The       total
\n    permissible floor area of the said large track of land<\/p>\n
    in terms of the aforesaid calculations works out to
\n    1,28,845.04          sq.mts.          Obviously,              therefore               the<\/p>\n
    respondents were fully justified in law in permitting
\n    the 7th respondent to carry out development at the suit<\/p>\n
    site    to    the    extent      of   30%        of   the     aforesaid            total
\n    permissible floor area i.e. 1,28,845.04 sq. mts. which<\/p>\n
    works out to 38,653.51 sq. mts.\n<\/p>\n
                 The    contention        of     the      Petitioner            that        in<\/p>\n
    accordance with the amended\/modified DCR no 9, 30% has
\n    to     be    of    the    83,920.07        sq.mts       i.e.       only        balance<\/p>\n
    permissible FSI available for the BEST as on the date
\n    of impugned transaction, can not be accepted. In our<\/p>\n
    view the ‘total permissible floor area’ {as set out by
\n    clause (a) of the explanation (v) of the DCR no.9} has
\n    to     be    considered     of      the     ‘site       reserved           for       BEST<\/p>\n
    undertaking’        and    not   just       of    the    ‘available\/balance
\n    FSI’ as contended by the Petitioner. Acceptance of such
\n    contention of the petitioner will amount to reading
\n    something into the said DCR that is not there, which of<\/p>\n
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\n                                             69<\/span><\/p>\n
    course is impermissible in law.\n<\/p>\n
                 Considering the case, from this aspect of the<\/p>\n
    matter, it is clear that the development permitted to
\n    be carried out by the 7th respondent is strictly within
\n    the four corners of the amended provisions of the said<\/p>\n
    DCR No.9.<\/p>\n
\n\n\n\n\n                                                \n    90.          The    aforesaid      calculations         will     also       further\n    demonstrate             that     even\n                                    ig       after        permitting          the        7th\n<\/pre>\n
    respondent to carry out development to the extent of
\n    38,653.51. sq. mts. FSI, the BEST still will be left<\/p>\n
    with the balance FSI to the extent of 45,266.56 sq.
\n    mts. which can be utilised by the BEST in carrying out<\/p>\n
    development at the said large track of land. This part
\n    of     the    calculations          also     further      shows         that       the<\/p>\n
    contention of the petitioner that the 7th respondent is
\n    permitted          to    carry    out    developments          in     excess         of<\/p>\n
    permissible FSI is far from the truth.\n<\/p>\n
    91.          It    also    further      needs    to    be stated          that in<\/p>\n
    paragraph 7 of the affidavit dated 31.1.2008 filed on
\n    behalf of the said Corporation, it is stated that the
\n    proposal for development submitted with it comprises of
\n    only    residential            buildings     and      that     no     commercial<\/p>\n
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\n                                            70<\/span><\/p>\n
    development is proposed on the suit property. It is<\/p>\n
    further     stated    in        this     paragraph          that      the       said
\n    Corporation has approved plans of residential buildings<\/p>\n
    only.\n<\/p>\n
    92.       In view of our aforesaid calculations, we also<\/p>\n
    do not find any substance in the contention of the
\n    petitioners     to   the        effect       that     permitting          the       7th<\/p>\n
    respondent     to    carry       out        development       at       the       suit
\n    property to the extent of 38,653.51 sq. mts. amounts to<\/p>\n
    permitting the 7th respondent to use the FSI of such
\n    other portion of the said large track of land which<\/p>\n
    falls beyond the suit property and that therefore it
\n    amounts to using TDR (Transferable Development Rights)<\/p>\n
    which is not permitted in law.\n<\/p>\n
    93.       POINT NO.7 :          What is the nature of “Agreement
\n              for Development” dated 18.5.2007 entered into<\/p>\n
              by and between BEST and 7th respondent ?:
\n              As   set   out    hereinabove,             after    following           the
\n    procedure      of    inviting          bids      by     way        of        public<\/p>\n
    advertisement, the BEST selected 7th respondent as the
\n    successful     bidder      in    as    much     as    the    7th     respondent
\n    offered maximum premium as and by way of non-refundable
\n    deposit at the rate of Rs.57,000\/- per sq. mtr., for an<\/p>\n
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\n                                           71<\/span><\/p>\n
    area of 39,291 sq. mtrs.             of the suit property.                It has<\/p>\n
    come    on    record     that   the    7th    respondent         accordingly
\n    deposited       the    entire     amount      which     worked          out       to<\/p>\n
    Rs.2,20,32,21,000\/-         (Two hundred twenty crores thirty
\n    two lakhs twenty-one thousand only) with the BEST and
\n    that on deposit of such amount, the BEST has entered<\/p>\n
    into “Agreement for Development” with the 7th respondent
\n    on    18.5.2007       (hereinafter     referred       to    as     the      “said<\/p>\n
    Agreement” for brevity sake).                A copy of the Agreement
\n    has been produced as Exh.`2′ by the petitioner along<\/p>\n
    with its affidavit-in-rejoinder dated 25.1.2008.                                The
\n    annexures thereof have been separately tendered by the<\/p>\n
    petitioner      after     conclusion         of   arguments,          for       the
\n    purpose      of completion      of    record. However             we do not<\/p>\n
    think that these annexture produced subsequently, make
\n    any difference to the case of either the Petitioner or<\/p>\n
    that of any of the Respondents.\n<\/p>\n
    94.          According to the petitioner, the said Agreement
\n    is an agreement which creates a lease and, therefore,
\n    the provisions of section 460K and 460Q of the said<\/p>\n
    Act, 1888 are attracted.              It is the contention of the
\n    petitioner that as a result of the execution of the
\n    said Agreement, a lease in respect of the suit property
\n    stands        created      and,        therefore,           taking             into<\/p>\n
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\n                                          72<\/span><\/p>\n
    consideration the aforesaid amount of huge premium, the<\/p>\n
    provisions of section 460K(b) and 460Q(d) are attracted
\n    to such a transaction.               It is, therefore, submitted<\/p>\n
    that the General Manager of the BEST who has executed
\n    the   said    Agreement       was   required      to    comply         with       the
\n    aforesaid provisions of law by obtaining prior approval<\/p>\n
    of the said Corporation before execution of the said
\n    Agreement and that approval\/permission of the said BEST<\/p>\n
    committee      was     not    sufficient         compliance           with        the
\n    aforesaid provisions of law.\n<\/p>\n
    95.         On the contrary, it is the contention of the<\/p>\n
    respondents that the said Agreement by itself does not
\n    create any lease in favour of anyone and, therefore,<\/p>\n
    the aforesaid provisions of law relied on behalf of the
\n    petitioner are not at all attracted to the facts and<\/p>\n
    circumstances of the case.                 It is the case of the
\n    respondents         that     the    said    Agreement           is       only        a<\/p>\n
    development agreement and by itself the same does not
\n    create any leasehold rights as such either in favour of
\n    the 7th respondent or the nominees of the 7th respondent<\/p>\n
    in    the    suit     property.      In    the     submission             of      the
\n    respondents,        since    the    General      Manager       has      obtained
\n    appropriate approval and\/or sanction for execution of
\n    the said agreement from the BEST Committee, the said<\/p>\n
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\n                                       73<\/span><\/p>\n
    Agreement is legal, valid and enforceable in law.                               In<\/p>\n
    support of this contention, the respondents relied on
\n    the    Resolution    dated    20.10.2006     passed        by     the       BEST<\/p>\n
    Committee, copies of which are also produced by the
\n    petitioner as Exh.`E’ to the petition.\n<\/p>\n
    96.       The crucial issue, therefore, to be determined
\n    is as to whether the said Agreement is “an Agreement of<\/p>\n
    lease” or an “Agreement to lease”.                In other words, it
\n    is to be determined as to whether the said Agreement is<\/p>\n
    only an agreement whereby the BEST has agreed to create
\n    a lease in future or is it an agreement which by itself<\/p>\n
    creates a lease in praesenti.           In legal terms, it will
\n    have    to   be    determined    whether     the      said        Agreement<\/p>\n
    creates “a present demise” or not.\n<\/p>\n
    97.       Before    dealing     with   the   aforesaid           issue,         we
\n    must take care of one interesting legal controversy<\/p>\n
    raised as an offshoot of the aforesaid legal issue. It
\n    is thus :\n<\/p>\n
           whether an assignment of “right to lease” an<\/p>\n
           immovable    property     amounts     to    creating           an
\n           interest in such an immovable property ?\n<\/p><\/blockquote>\n
    98.       Ownership of immovable property is a bundle of<\/p>\n
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\n                                           74<\/span><\/p>\n
    various rights.             Obviously, one of such right is a<\/p>\n
    “right to lease” such an immovable property.                            A right
\n    to sell is another such right from the aforesaid bundle<\/p>\n
    of rights.       Only to the aforesaid limited context a
\n    “right to sell” is something which is similar, if not
\n    higher, to a “right to lease” an immovable property.\n<\/p>\n
    It is well-settled position of law that an “agreement
\n    to sell” does not create any legal interest in the<\/p>\n
    immovable property. Though                  an agreement to sell is
\n    enforceable     in     law,  igsuch    an    agreement        does       not      by
\n    itself    create      any    right,    title     or    interest          in      the
\n    immovable property.           Certainly, an “agreement to sell”\n<\/p>\n
    creates rights which are similar (if not higher) in
\n    nature as are created by an “agreement to lease”.                                  We<\/p>\n
    are, therefore, of the view that if an agreement to
\n    sell     does   not    create      any      right     in     an      immovable<\/p>\n
    property, obviously, an agreement to lease also does
\n    not create any right in an immovable property.\n<\/p>\n
    99.       We    are,        therefore,      of   the       view       that        an
\n    “agreement to lease” does not create any right, title<\/p>\n
    or interest in the immovable property. It creates only
\n    a right to obtain a deed of Lease in future. However an
\n    “agreement of lease” certainly creates rights in the
\n    immovable property as contemplated by the Transfer of<\/p>\n
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\n                                              75<\/span><\/p>\n
    Property Act.          Thus, we will have to now examine the<\/p>\n
    said Agreement to find out as to whether it is an
\n    “agreement       to    lease”      or    an     “agreement          of     lease”         to<\/p>\n
    answer    the     issue      as    to    whether        the       said      agreement
\n    attracts       the    aforesaid         provisions          of    Section         460       K
\n    and\/or 460 Q of the said Act 1888.\n<\/p>\n
    100.       The aforesaid question raised by the parties to<\/p>\n
    the    present       proceedings         as    to     the    applicability                of
\n    section 460K and\/or section 460Q of the said Act 1888<\/p>\n
    will have to be answered only after finding out the
\n    true     and    correct      purport           and     nature       of      the       said<\/p>\n
    Agreement.        It will, therefore, be necessary to dwell
\n    into some of the important terms of the said Agreement<\/p>\n
    to    appreciate       the    exact       nature        of       the     transaction
\n    entered into by and between the parties to the said<\/p>\n
    Agreement.\n<\/p>\n
    101.       As    the    Agreement          is        very    bulky        and       gives
\n    numerous        details,      it        will     not        be    convenient              to
\n    reproduce herein the terms thereof.                          We will, however,<\/p>\n
    prefer to mention hereunder generally as to the nature
\n    of the transaction the parties have entered into by
\n    virtue of the said Agreement.\n<\/p>\n
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\n                                            76<\/span><\/p>\n
    102.      The 7th respondent has agreed to pay the “non-\n<\/p>\n
    refundable premium” to the BEST.                   In fact, as set out
\n    hereinabove,       the     same    is       already    paid        by     the       7th<\/p>\n
    respondent to the BEST.                In consideration thereof, the
\n    7th   respondent     is       permitted      to   enter     upon        the      suit
\n    property and construct commercial\/residential premises<\/p>\n
    therein in terms of the aforesaid explanatory note no.\n<\/p>\n
    (v) added below Table 4 contained in regulation 9 of<\/p>\n
    the said DCRs.           The 7th respondent is further granted a
\n    one time right to nominate the lessee(s) with respect<\/p>\n
    to the premises that the 7th Respondent is permitted to
\n    construct at the suit property.                    The 7th respondent is<\/p>\n
    entitled to receive consideration for such a nomination
\n    to be made by the 7th respondent.                  The 7th respondent is<\/p>\n
    not    liable   to        the    BEST       to    account       for       such        a
\n    consideration that the 7th Respondent will be receiving<\/p>\n
    from its nominees.              The 7th respondent is to intimate
\n    the names of such lessees and the name of the trade<\/p>\n
    which will be conducted by such lessees in the allotted
\n    premises.    BEST has agreed to lease out the constructed
\n    commercial\/residential premises on carpet area basis to<\/p>\n
    the lessee(s) so recommended by the 7th respondent, for
\n    which the BEST has agreed to execute the lease deed(s)
\n    with each of such lessee(s).                 BEST has also agreed and
\n    confirmed    that        it     will    execute       any    other         related<\/p>\n
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\n                                            77<\/span><\/p>\n
    documents as may be required to be executed to prefect<\/p>\n
    the    title   of   the    developer’s         nominees      to     the       said
\n    constructed and allotted premises as lessees of the<\/p>\n
    such premises without any delay or demur, provided that
\n    the 7th respondent does not commit breach of any of its
\n    obligation     under      the   said        Agreement.    It     is     further<\/p>\n
    clarified      by   the    said       Agreement    that     once        the      7th
\n    respondent nominates the names of the proposed lessees<\/p>\n
    and the BEST enters into lease deed with such lessees
\n    in respect of the premises constructed and allotted by<\/p>\n
    the 7th respondent at the suit property, the right of
\n    the 7th respondent          to nominate such names of lessees<\/p>\n
    will extinguish.          In other words, it is clarified that
\n    in case of early termination of such proposed lease(s)<\/p>\n
    for any reason whatsoever, the 7th respondent shall have
\n    no further right to nominate any name with respect to<\/p>\n
    the premises under such lease(s).                   It is also agreed
\n    that the 7th respondent will be entitled to form or<\/p>\n
    cause    to    be    formed       a    society     of     such        proposed
\n    lessees\/nominees of the 7th respondent and that the BEST
\n    has agreed to execute an Indenture of Lease in respect<\/p>\n
    of such property in favour of such proposed society, if
\n    any.\n<\/p>\n
    103.      Inasmuch as the lease period is concerned, it<\/p>\n
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\n                                         78<\/span><\/p>\n
    is agreed to be initially of 60 years for which the<\/p>\n
    monthly lease rent is agreed to be Rs.1\/- per sq. foot
\n    of built-up area for the first 30 years and Rs.2\/- per<\/p>\n
    sq. foot of built-up area for the subsequent 30 years.
\n    Thereafter, the lease period is agreed to be renewable
\n    at monthly lease rent to be determined by the BEST.                              It<\/p>\n
    is clarified that the lease rent shall be exclusive of
\n    all taxes.         However, clause 12 of the agreement states<\/p>\n
    that the lease rent will commence from the date of
\n    receipt       of    Occupation
\n                                ig      Certificate        from        the        said
\n    Corporation         in    respect        of   residential\/commercial
\n    construction or 48 months from the date of the said<\/p>\n
    Agreement, whichever is earlier.                    It further states
\n    that the 7th respondent shall be responsible for payment<\/p>\n
    of     the    lease      rent   with      respect      to      the        entire
\n    constructed premises from the date of commencement of<\/p>\n
    the lease rent.           This clause further states that the
\n    lessee will be required to pay a deposit equivalent to<\/p>\n
    12 months’ monthly lease rent in advance to the BEST.\n<\/p>\n
    104.         The said Agreement sets out various terms and<\/p>\n
    conditions subject to which the 7th respondent is to
\n    carry out the development in issue.                   Nothing turns on
\n    these terms and conditions and, therefore, we need not
\n    set out the same herein. Suffice it to say that the<\/p>\n
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\n                                    79<\/span><\/p>\n
    right to carry out development conferred by the said<\/p>\n
    agreement on the 7th respondent is not unconditional,
\n    but the same is very much subject to compliance with<\/p>\n
    certain terms and conditions.\n<\/p>\n
    105.    A perusal of the said Agreement and the nature<\/p>\n
    of transaction effected thereby,            in short, as set out
\n    hereinabove will demonstrate that the said Agreement by<\/p>\n
    itself does not create a lease in anybody’s favour,
\n    much less either in favour of the 7th respondent or in<\/p>\n
    favour of the nominees of the 7th respondent.                   There can
\n    be no manner of doubt that the said Agreement with<\/p>\n
    certainty assures the 7th respondent that without any
\n    delay or demur the BEST will execute the lease deed and<\/p>\n
    all other documents in favour of the nominees of the 7th
\n    respondent    for   creating   a    lease    in      favour         of      the<\/p>\n
    nominees of the 7th respondent in respect of the portion
\n    of the premises\/building that will be constructed and<\/p>\n
    allotted by the 7th respondent to such nominees.                          This
\n    commitment made by the BEST to the 7th respondent by
\n    virtue of the said Agreement, howsoever strong and\/or<\/p>\n
    unequivocal   may   be,   still     the   same     falls        short         of
\n    actual creation of a lease in favour of the nominees of
\n    the 7th respondent, there being no question of creation
\n    of any lease in favour of the 7th Respondent.                   The terms<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                               80<\/span><\/p>\n
    of the said Agreement clearly demonstrate that such<\/p>\n
    leases assured by the BEST are to be created in future.
\n    Obviously,        therefore,         there      is    nothing     in       the     said<\/p>\n
    Agreement which can be read to mean that a `present
\n    demise has taken place’ by virtue of the said Agreement
\n    either in regard to the suit property or in respect of<\/p>\n
    the    building         to    be     constructed       thereon        by     the      7th
\n    Respondent.\n<\/p>\n
    106.        The    specific     ig   clause     which     requires          the       7th
\n    respondent to pay the amount of lease rent to the BEST
\n    with the expiry of the period of 48 months from the<\/p>\n
    date of the said Agreement does not by itself create a
\n    lease       of    the    suit       property     in     favour       of     the       7th<\/p>\n
    respondent.         This term appears to have been included in
\n    the said Agreement only as and by way of quantum of<\/p>\n
    amount that will become payable by the 7th respondent to
\n    the BEST. By paying such an amount as agreed, the 7th<\/p>\n
    respondent cannot acquire any lease-hold rights in the
\n    suit property nor can the 7th respondent thereby acquire
\n    any status of a lessee in law of the construction that<\/p>\n
    may    be    put    up       by     the   7th   respondent       on       the     suit
\n    property.\n<\/p>\n
    107.        In      as       much    as   the    issue    as    to      whether         a<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                       81<\/span><\/p>\n
    particular document creates a “present                    demise” or not,<\/p>\n
    no doubt is always a question which is to be answered
\n    by considering the document in issue, terms thereof and<\/p>\n
    the nature of transactions that the parties may have
\n    contemplated under the same. However, so far as legal
\n    aspect of creating “present demise” is concerned, the<\/p>\n
    Supreme    Court    had   occasion      to    deal     with        the       same,
\n    basically    in     the   light     of       provisions          of       Indian<\/p>\n
    Registration       Act,   1908.     Observations            made        by      the
\n    Supreme Court, though are in the context of provisions<\/p>\n
    of   Registration     Act,   1908      and   in   the      background             of
\n    factual controversy involved in such matters, the same<\/p>\n
    may be useful for considering the aforesaid question
\n    involved in this case. These observations can be found<\/p>\n
    in the following few Judgments :\n<\/p>\n
                   (a)Trivenibai * Anr. Vs.Smt. Leelabai
\n           reported in AIR 1959 S. C. 620 (paras 11,15).\n<\/p><\/blockquote>\n
                   (b)State      of   Maharashtra         &    Ors.       Vs.
\n           Atur India Pvt. Ltd.,(1994)2 SCC 497(para 24).\n<\/p><\/blockquote>\n
    108.      In the aforesaid Judgments, the Supreme Court
\n    has considered the distinction between “agreement to
\n    lease” and “agreement of lease”. This distinction is
\n    considered by the Supreme Court by referring not only<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                          82<\/span><\/p>\n
    English law but also Indian Law.\n<\/p>\n
    109.       The Supreme Court again placed reliance on the<\/p>\n
    ratio of the Judgment delivered by it in Trivenibai’s
\n    case    (supra)       while    dealing     with    the    case       of      Food
\n    Corporation      of    India    &   Ors.   vs.           Babulal       Agarwal<\/a><\/p>\n
    reported    in    [(2004)       2   SCC    712].   The     paragraph            10
\n    thereof reads thus:\n<\/p>\n
           “………….There must be demise of the<\/p>\n
           property in praesenti. But an agreement for
\n           securing another agreement or deed in future
\n           would not be such an agreement or document
\n           which may require registration. Clause 8 of<\/p>\n
           the agreement did not create any right in
\n           praesenti nor was there any immediate demise
\n           of the property. It was only an executory
\n           agreement. The construction of the plinths, it
\n           seems, had yet to start with other facilities<\/p>\n
           and   amenities.    On    completion,   such    a
\n           certificate was to be obtained from the
\n           defendant.   It   was    thereafter   that    the<\/p>\n
           possession was to be handed over under the
\n           lease agreement which was to be executed
\n           between the parties. The construction was to
\n           be strictly in accordance with the directions
\n           and specifications of the defendant. Condition<\/p>\n
           9 also contemplated that if the structure was
\n           found defective or workmanship was faulty, the
\n           defendant could refuse to take possession of
\n           the premises and the earnest money was liable
\n           to be forfeited. Hence it is evident that no
\n           possession, right or title had passed on in<\/p>\n
           praesenti at the time of execution of the
\n           agreement,   and    there    were   many    prior
\n           conditions    attached     thereto.    Such    an
\n           agreement, in our view, has been rightly held
\n           to be only an executory agreement and not an
\n           agreement creating rights in the immovable
\n           property, hence not compulsorily required to
\n           be registered. It was a mere agreement between<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                         83<\/span><\/p>\n
           the parties which was not registered but was
\n           admissible in evidence.”\n<\/p><\/blockquote>\n
    110.      These    Judgments        and     such     other         judgments
\n    delivered by      the    Supreme     Court   in    this       regard         have
\n    crystalised     the     law   on   the    point    as   to     distinction<\/p>\n
    between the nature of document, which is a “Agreement
\n    of Lease” and “Agreement to lease”. The crux                          of this
\n    distinctions is to find out as to whether the document<\/p>\n
    in issue creates or does not create “a present demise”.\n<\/p>\n
    If the document and\/or transaction creates a lease in
\n    praesenti then the same is an “Agreement of Lease”. On<\/p>\n
    the other hand, if the document is only executory in
\n    nature and instead of creating               a lease in praesenti
\n    only assures and\/or promises to create such a lease in<\/p>\n
    future, the same is “Agreement to Lease”.\n<\/p>\n
    111.      In view of the aforesaid legal background as to<\/p>\n
    the    distinction      between    the    aforesaid       two      different
\n    types of documents relating to lease and in view of the
\n    facts    and   circumstances       of      this    case      discussed           in
\n    detailed herein above, we hold that the Agreement in<\/p>\n
    issue dated 18.5.2007 is only executory agreement i.e.
\n    an “Agreement to Lease” and that the same is not an
\n    “Agreement of lease”. Consequently, we conclude that
\n    the aforesaid Agreement in issue dated 18.5.2007 does<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                              84<\/span><\/p>\n
    not create any right, title or interest in favour of<\/p>\n
    the 7th Respondent in praesenti and particularly such a
\n    right,    title     or     interest       as       is   contemplated            by     the<\/p>\n
    provisions of Section 260Q of the said MMC Act, 1888.\n<\/p>\n
    112.       One more important aspect of the matter is that<\/p>\n
    in     India,      dual       ownership        is       recognized          in       law.
\n    Therefore, leasing out the building i.e. the super-\n<\/p>\n
    structure or a part thereof that will be constructed on
\n    the suit plot and leasing out the suit plot and\/or area<\/p>\n
    thereof will be two different aspects in law.                                In other
\n    words,    creating        a    lease     in        respect      of      the      super-\n<\/p>\n
    structure is entirely different than creating a lease
\n    of the land on which the super-structure stands. If the<\/p>\n
    said Agreement is considered from this legal aspect of
\n    the     matter,     it     will      become         clear      that        the       said<\/p>\n
    Agreement contemplates only creation of lease of the
\n    tenement and\/or residential\/commercial construction to<\/p>\n
    be put up on the suit property and does not contemplate
\n    creation of a lease in anybody’s favour in regard to
\n    the    land     underneath         the   construction           i.e.       the       suit<\/p>\n
    property or part thereof.                 Thus the said Agreement for
\n    this additional reason also does not in law, create any
\n    lease    in     favour        of   anybody         inasmuch        as      the       suit
\n    property      or    part      thereof         is    concerned.             The       said<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                   85<\/span><\/p>\n
    Agreement only contemplates creation of a lease of the<\/p>\n
    portion of the building that will be constructed on the
\n    suit property or part thereof by the 7th Respondent.\n<\/p>\n
    113.    In view of the aforesaid discussion, we hold
\n    that the said Agreement is only an executory agreement<\/p>\n
    which   contemplates   and,    at   the   highest,           assures
\n    execution of lease in future and does not create a<\/p>\n
    lease in praesenti.    We, therefore, conclude that the
\n    said Agreement does not create a `present demise’ in<\/p>\n
    law and, therefore, is not a lease deed and further
\n    that the said Agreement does not create any right in<\/p>\n
    the suit property in favour of the 7th respondent being
\n    only “Agreement for Development”.\n<\/p>\n
    114.    With the aforesaid conclusions we proceed to<\/p>\n
    deal with the issue of applicability of the aforesaid
\n    provisions of Section 460 K and 460 Q of the said Act<\/p>\n
    1888. As this issue overlaps the next point framed for
\n    consideration we will deal with the same collectively
\n    as under.\n<\/p>\n
    115.    POINT NO.8:    Legality and validity of the
\n            Resolutions dated 6th November 2006 of the BEST
\n            and the Agreement for Development dated 18th May
\n            2007 :-\n<\/p>\n
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\n                                        86<\/span><\/p>\n
                As set out herein above, this issue needs to be<\/p>\n
    answered, taking into consideration the nature of the
\n    said Agreement.        The entire edifice of the case of the<\/p>\n
    petitioner that the said Agreement is illegal is built
\n    on the foundation that the said Agreement creates a
\n    lease and\/or in any case an interest in law, in the<\/p>\n
    suit property, either in favour of the 7th respondent or
\n    in favour of the nominees of the 7th respondent.                       On the<\/p>\n
    basis of such a foundation, the aforesaid argument is
\n    made by the learned counsel appearing on behalf of the<\/p>\n
    petitioner that the General Manager of the BEST has not
\n    obtained       the   requisite     approval      and\/or        permission<\/p>\n
    and\/or      sanction    from     the    said    Corporation            before
\n    executing the said Agreement and that therefore there<\/p>\n
    is non-compliance with the provisions of Section 460 K\n<\/p>\n
    (b) r\/w 460 Q (d) of the said Act 1888.\n<\/p>\n
    116.        However, as we have concluded hereinabove that<\/p>\n
    the    said    Agreement   does   not    create    either         lease        in
\n    praesenti       or any interest in law in favour of anybody
\n    in    the     suit   property,    in    our    view,    the      aforesaid<\/p>\n
    provisions relied on behalf of the petitioner will not
\n    be attracted.        The relevant portion of section 460K and
\n    section 460Q of the said Act, 1888 read thus:-\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                        87<\/span><\/p>\n
     “460K. Making of contracts:- With respect
\n     to the making of contracts for the<\/p>\n
     purposes of the Brihan Mumbai Electric
\n     Supply     and    Transport    Undertaking)
\n     (including   contracts   relating  to   the<\/p>\n
     acquisition and disposal of immovable
\n     property or any interest therein, or any
\n     right thereto) the following provisions
\n     shall have effect, namely:-\n<\/p>\n
     (a)     …………………………….\n<\/p>\n
     ……………………….\n<\/p>\n
     (b)     no such contract for any purpose
\n     which, in accordance with any provision of
\n     the Chapter, the General Manager may not<\/p>\n
     carry out without the approval or sanction
\n     of some other municipal authority, shall
\n     be made by him until or unless such<\/p>\n
     approval or sanction has first been duly
\n     given ;<\/p>\n
\n     (c)   no contract which will involve an\n              \n     expenditure     exceeding ten lakhs rupees\n     shall be made by the    General    Manager\n<\/pre>\n
     unless the same is previously   approved
\n     by the Brihan Mumbai Electric Supply and
\n     Transport Committee:\n<\/p>\n
     Provided that, where the previous approval
\n     of the Committee is sought for any such<\/p>\n
     contract by the General Manager, the
\n     Committee shall consider and dispose of
\n     such proposal within thirty days from the
\n     date of on which the item is first
\n     included in the agenda of any meeting of<\/p>\n
     the Committee, failing which, the previous
\n     approval shall be deemed to have been
\n     given by the Committee for such Contract
\n     on the last day of the period of thirty
\n     days aforesaid.   A report to that effect
\n     shall be made by the General Manager to<\/p>\n
     the Committee;\n<\/p>\n
     (d) ………………………………..
\n     ………………………..\n<\/p>\n
     (e)   ………………………………
\n     ………………………..”\n<\/p>\n
                                  ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                        88<\/span><\/p>\n
     “460Q.   Provisions governing disposal of<\/p>\n
     municipal property:- With respect to the
\n     disposal of property vesting in the
\n     corporation for the purposes of the Brihan<\/p>\n
     Mumbai   Electric  Supply   and  Transport
\n     Undertaking the following provision shall
\n     have effect, namely:-\n<\/p>\n
     (a)     the General Manager may, dispose\n     of by sale,     hire,  hire-purchase   or\n\n\n\n\n                                  \n<\/pre>\n
     otherwise, any movable property belonging
\n     to the corporation not         exceeding
\n     in value in each instance, two thousand
\n             rupees;\n<\/p>\n
     (b)     the General Manager may grant a\n     lease of any    immovable       property\n     belonging to the corporation\n                ig                 for    any\n<\/pre>\n
     period not exceeding twelve months at a
\n     time:\n<\/p>\n
         [Provided that, every lease granted by<\/p>\n
     the General Manager (other than a contract
\n     for monthly tenancy) the annual rent of
\n     which exceeds fifteen thousand rupees
\n     shall be reported by him, within fifteen
\n     days after the same has been granted, to<\/p>\n
     the Brihan Mumbai electric Supply and
\n     Transport Committee];\n<\/p>\n
     (c) with the sanction of the [Brihan
\n     Mumibai Electric Supply and Transport
\n     Committee],   the   General   Manager    may
\n     dispose of, by     sale or otherwise, any
\n     movable   property    belonging    to    the<\/p>\n
     corporation   of which the value does not
\n     exceed [one lakh rupees], and may grant a
\n     lease of any immovable property belonging
\n     to   the   corporation   for   any    period
\n     exceeding one year, or sell or grant a
\n     lease in perpetuity of any immovable<\/p>\n
     property belonging to the corporation for
\n     any period exceeding one year, or sell or
\n     grant a lease in perpetuity of any
\n     immovalbe   property   belonging    to   the
\n     corporation the value whereof      does not
\n     exceed [one lakh rupees] or the annual
\n     rental whereof does not exceed [ten
\n     thousand rupees];\n<\/p>\n
                                   ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                         89<\/span><\/p>\n
                (d) with the sanction of the corporation,<\/p>\n
                the General Manager    may lease, sell or
\n                otherwise convey any property, moveable or
\n                immovable, belonging to the corporation.”\n<\/p><\/blockquote>\n
    117.        Considering the nature of the said Agreement,<\/p>\n
    we are of the view that the provisions of section 460K\n<\/p>\n
    (c) alone are attracted.              In our view, the provisions
\n    of section 460-Q are not at all attracted, in the facts<\/p>\n
    and circumstances of the case and that Section 460-Q<\/p>\n
    will not govern and\/or apply to the said Agreement.
\n    Section 460-Q will apply only when the property of the<\/p>\n
    BEST is to be disposed of.                     In our view, the said
\n    Agreement does not dispose of the suit property.                                  At
\n    the highest, the said Agreement may be read to mean<\/p>\n
    that thereby a strong unequivocal commitment is made on<\/p>\n
    behalf of the BEST by the General Manager with the
\n    previous        approval   and\/or     sanction        of     the       BEST       to
\n    dispose of the property of the BEST.                  However, the said<\/p>\n
    Agreement certainly falls short of such actual disposal
\n    of the suit property.           It has been brought on record
\n    that the BEST        Committee has passed a resolution on 6th<\/p>\n
    Nov. 2006 not only approving and\/or sanctioning the
\n    tender     in     favour   of   the      7th    respondent,          but      also
\n    approving        and\/or    sanctioning          the     said         Agreement
\n    executed in favour of the 7th respondent on behalf of<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                        90<\/span><\/p>\n
    the BEST.     In view of the provisions of section 460K<\/p>\n
    (c),    the   General      Manager      was,   therefore,           legally
\n    competent to make the contract i.e., the said Agreement<\/p>\n
    and, therefore, the said Agreement does not suffer from
\n    any legal infirmity.\n<\/p>\n
    118.     It needs to be mentioned herein that on behalf
\n    of the BEST it is made clear that at an appropriate<\/p>\n
    stage when an occasion will arise for the execution of
\n    the actual leases as contemplated\/assured by the said<\/p>\n
    Agreement,    the   BEST    will     take   appropriate         steps        as
\n    required by the aforesaid provisions of the said Act<\/p>\n
    1888.\n<\/p>\n
    119.     It was contended on behalf of the BEST that<\/p>\n
    there are two classes of properties possessed by the
\n    BEST. The first one are those which belong to the said
\n    Corporation and are only given to the BEST for its<\/p>\n
    user.    The second one are those properties which are
\n    acquired directly by the BEST and therefore are held
\n    and possessed by the BEST. It was contended that the<\/p>\n
    suit property falls in the second category and that it
\n    is acquired by the BEST and therefore that it is owned
\n    and held by the BEST. It was therefore contended on the
\n    basis of such a submission that the                    provisions of<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n                                              91<\/span><\/p>\n
    Section 260K and 260Q of the said Act 1888 will have to<\/p>\n
    be considered accordingly.\n<\/p>\n
    120.        We are unable to express our opinion and take a
\n    definite view in this regard, one way or the other, as
\n    no material adequate enough to perform such an exercise<\/p>\n
    has been produced on record by either sides to show the
\n    source      of   acquisition        of    the    suit    property          and      its<\/p>\n
    vesting in the BEST. In this case therefore we do not
\n    propose to venture into an exercise to determine the<\/p>\n
    correctness or otherwise of this contention raised on
\n    behalf      of    the   Respondents.            For     want      of      adequate<\/p>\n
    material to trace out the title of the BEST and decide
\n    as     to   whether      or    not       the     said     Corporation              has<\/p>\n
    title\/ownership         of    the    suit       property,      we      keep      this
\n    issue specifically open.\n<\/p>\n
    121.        Having considered all the contentions raised on<\/p>\n
    behalf of all the parties and having found no substance
\n    in the case of the Petitioner we hereby dismiss this
\n    petition and discharge the Rule with no order as to<\/p>\n
    costs.\n<\/p>\n
                (A.A.KUMBHAKONI, J.)                      (S.B.MHASE, J.)<\/p>\n
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\n                                               92<\/span><\/p>\n
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\n                   ORDINARY ORIGINAL CIVIL JURISDICTION<\/p>\n
                     WRIT PETITION NO.             2296   OF          2007<\/p>\n
    DATE OF PRONOUNCEMENT OF JUDGEMENT                    :-      21st August 2008<\/p>\n
    FOR APPROVAL AND SIGNATURE :-\n<\/p>\n
    HON'BLE SHRI JUSTICE S.B.MHASE                        )\n\n\n\n\n\n                                                          )\n\n<\/pre>\n
    HON’BLE SHRI JUSTICE A.A.KUMBHAKONI )<\/p>\n
    1. Whether Reporters of Local Newspapers may be               )<\/p>\n
        allowed to see the judgement ?\n<\/p>\n
    2. Whether to be referred to the Reporters or not?            )<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>
\n            93<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 13:42:43 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Union Act vs The State Of Maharashtra on 21 August, 2008 Bench: S.B. Mhase, A.A. Kumbhakoni 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2296 OF 2007 The BEST Workers Union ] A union duly registered under ] the provisions of Indian Trade ] […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-71581","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUnion Act vs The State Of Maharashtra on 21 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-act-vs-the-state-of-maharashtra-on-21-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Act vs The State Of Maharashtra on 21 August, 2008 - 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