1 Trust-Petn-5 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Trust Petition No.5 of 2008 Official Trustee .. .. Petitioner v/s. M/s.Earth Designers and Developers & ors. .. Respondents Mr.R.V. Govilkar for Petitioner. Mr.P.K. Samdhani, Sr.Advocate i/by M/s.Kishore Thakordas & Co. for Res.No.1. Ms.Geeta Shastri, AGP for Res.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 13th September, 2010 P.C. : 1.This Petition is filed by the Official Trustee appointed as such under the Official Trustees Act, 1913 by Government of India (the Act) and who has been appointed as Official Trustee in respect of the suit Trust Petition which is a temple bearing C.S. No.113 at Banganga, Walkeshwar and its precincts having inter alia chawl and Dharamshala constructed thereon. 2.The Petitioner entered into a Memorandum of Understanding (MOU) on 29th November 1994 for development of the balance FSI on the suit plot of 2 Trust-Petn-5 land. That available FSI was to the extent of 2294 sq. feet. 3.The Respondents herein filed Trust Petition No.5 of 1995 for approval of the same under the said MOU. Before it could be approved, a Public Interest Litigation came to be filed challenging the said sale. In view thereof, the approval, as prayed, was not granted and instead certain Minutes of the order came to be passed on 8th August 1997. Under the Minutes of the Order, it was directed that there would not be any sale of the temple, chawl and temple land to the Respondents herein. They shall continue to vest in the Official Trustee, the Petitioner herein. The Respondents were held entitled to avail of only the privilege of the FSI available in respect of the property including the form of TDR in accordance with Regulation 67 of the Development Control Regulations (DC Regulations). 4.DC Regulation 67 is in respect of heritage building. DC Regulation 67(2) sets out the restriction on development, redevelopment and repairs of heritage structure. 5.The available FSI, including the TDR, was, therefore, to be used for the development of the suit plot of land 3 Trust-Petn-5 in consonance with the restriction on the development under Regulation 67(2) of the DC Regulations. Whatever be the further FSI, including the TDR, which may be available could, therefore, be used elsewhere and other than on the suit plot of land 6.This FSI, which was available in respect of the suit property, was to be granted for a consideration of Rs. 1.36 Crores. In addition thereto, the Respondents herein were directed to pay Rs.35 Lakhs for repairing and maintaining the temple. The Petitioner was to grant a Power of Attorney in favour of Respondent No.1- Director for negotiating with and obtaining consent agreement with the tenants for putting up a proposal for availing of the developable FSI in the form of TDR, including the TDR in respect of the chawl. The Respondents herein were directed to comply with the Municipal rules, regulations and guidelines applicable to the heritage properties. The plan, therefore, to be submitted was the plan for development, if any, of a heritage property under Regulation 67 of the DC Regulations. 7.It is contended on behalf of the Petitioner that the FSI, which was available was the then FSI available on the plot of land on the date the Minutes of Order was passed. That included the FSI in the form of TDR also. 4 Trust-Petn-5 The Petitioner claims that the balance FSI on the plot at the relevant time was 2294 sq. feet which was the entitlement of the Respondents herein under the said Minutes of the order since that was the FSI available in respect of the property. 8.The Respondents claim that whatever was the FSI that was then available as well as the FSI which was available from time to time thereafter pursuant to changes in the law and rules or otherwise would be the entitlement of the Respondents upon the same consideration since it would be a one time transaction for the transfer of the FSI including TDR to the Respondents. This contention is taken despite the fact that the very sentence of the Minutes of the order was that There shall not be any sale of the temple, chawl and temple land to the Petitioner. The land would, therefore, continue to vest in the Official Trustee and the Official Trustee would not be divested of the land. However, whatever was the then FSI available, including the TDR would be the entitlement of the Respondents herein for the consideration aforesaid. 9.A Power of Attorney was, however, to be executed by the Official Trustee in favour of the Respondents. The Power of Attorney was executed on 8th September 1997, a month after the Minutes of order came to be passed. The 5 Trust-Petn-5 Power of Attorney is for preparing plans in respect of the suit property and to submit the same to MHADA, MMC and other Authorities to obtain the TDR/FSI available in respect of the suit property, to enter upon the suit property, survey it and negotiate with the tenants for repairs/reconstructions of their structures with a view to enable the Respondents to obtain the balance FSI by way of TDR/FSI, to carry on correspondence with the required Authorities to obtain TDR/FSI within the heritage precincts, to represent the official assignee for obtaining the balance FSI, to appoint Architects for repairs/reconstruction work as also to obtain balance TDR/FSI, to give letters, writings and undertakings to the MMC and MHADA for obtaining NOC in connection with the suit property and for balance TDR/FSI, to represent the Petitioner before the aforesaid Authorities for sanctioning the plans, obtaining FSI for repair and reconstruction of the structure and for availing the balance FSI, to obtain consent from the tenants in occupation of the structures for repair and reconstruction of their structures in respect of the balance available FSI with prior approval of the Petitioner. 10.A reading of the Power of Attorney shows the grant of permission to do the various acts which are otherwise required to be done but as would be applicable to the 6 Trust-Petn-5 property in a heritage precinct. It also shows that for each of the acts for which the authority is granted that it was ultimately to obtain the balance TDR/FSI. It also shows that the consent of the tenants, which had to be obtained in respect of the balance FSI, was to be with the prior approval of the Petitioner. 11.The Petitioner challenged the Minutes of the order in a Special Leave Petition which came to be rejected. 12.The Petitioner filed Trust Petition No.5 of 2004. He made a grievance that the Respondents sought to submit plans for obtaining FSI which was more than the FSI available in respect of the property as mentioned in the Minutes of the order. He complained that certain plans were sanctioned for development under Regulation 33(7) of the DC Regulations, 1991 and the Respondents were to commence certain construction without informing of the same to the Petitioner and which would be in breach of Regulation 67 of the DC Regulations, 1991. The Petitioner obtained a copy of the redevelopment proposal of the Respondents and found that it was for demolishing the existing chawl, structure and building a new structure. Consequent upon such demolition, the Respondents were to obtain FSI to the extent of 2.5 of the existing FSI. That was to be 2.5 times more than the FSI available in respect of the property as on 7 Trust-Petn-5 8th August 1997, when the Minutes of the order came to be passed. He contended that the Respondents sought to usurp the property without paying for the same and sought to demolish the structure and obtain additional FSI and TDR without paying for the same. He contended that the balance FSI, if any, could be sold by the Official Trustee on behalf of the Trust property which was a heritage property to third parties instead of the Respondents. He applied for an order and direction that the Respondents were to use FSI of only 2294 sq. feet which was the FSI available of the property at the time the Minutes of the order came to be passed. He sought direction that the Respondents were not entitled to demolish the chawl and for other incidental reliefs. 13.An order came to be passed by this Court by Aguiar, J. (as he then was) on 9th March 2005 interpreting the Minutes of the order dated 8th August 1997 and taking into account the fact that at the time of the execution of the MOU dated 29th November 1994, the FSI could not have been restricted to 2294 sq. feet and upon the footing that the Petitioner would be aware of the entire FSI potential of the suit plot, the Petition came to be rejected. The Division Bench of this Court dismissed the Appeal therefrom on 10th October 2005. 8 Trust-Petn-5 14.The Respondents sought to continue to develop the suit property and put up construction thereon which came to be challenged in Writ Petition No.1469 of 2009 by the Petitioner herein and in which the construction is ordered to be stopped. 15.The Petitioner has thereafter filed this Petition to be divested of his appointment as Official Trustee of the heritage property and for other consequential reliefs upon the premise and the case that the temple, chawl and the chawl land were specifically not sold to Respondent No.1 and continued to vest in the Petitioner and hence on the temple land no construction to be put and no plans in that behalf could be sanctioned under Regulation 33(7). The Petitioner contends that the MMC, MHADA and other Authorities have not heeded his contention and have allowed the demolition of the chawl and construction thereon which has rendered his efforts to protect the Trust Petition futile and negated. 16.It is contended on behalf of the Respondents that the Petitioner has again and again come to Court with the same reliefs and is barred by the principles of res judicata as well as of issue estoppel and that he has taken up this contention for the third time. 17.Mr.Samdhani on behalf of Respondent No.1 argued that 9 Trust-Petn-5 the first attempt was in challenging the Minutes of order in the SLP which came to be rejected. The second attempt of the Petitioner was in filing Trust Petition No.5 of 2004 which came to be rejected, including the Appeal which came to be dismissed and the third attempt is in filing this Petition on the same facts. 18.This Petition is, however, not for the same relief. In any event, a Writ Petition has also been filed by the Petitioner and in which the Petitioner has obtained relief for protection of the Trust property by an order of injunction against further construction. 19.In any event, the first challenge to the Minutes of order was on the premise that the Minutes of order as such could not be passed. Trust Petition No.5 of 2004 came to be filed upon accepting the Minutes of order and interpreting it and seeking directions in terms of that interpretation. This Petition is filed, obviously upon the same interpretation by the same party, the Petitioner herein, but for his release in his official capacity. 20.Mr.Govilkar on behalf of the Petitioner drew my attention to Section 10(1) of the Official Trustees Act, 1913 in which the High Court would have the power to appoint Official Trustee as trustee of a property 10 Trust-Petn-5 with his consent. Mr.Govilkar claims that the Petitioner has chosen to call it a day in view of the fact that his efforts have not yielded fruits with the MMC, MHADA and other Development Authorities who have allowed the Respondents to carry on construction under plans which are submitted under Regulation 33(7) of the DC Regulations by demolishing the chawl and reconstructing thereon, an aspect, which according to the Petitioner, has not been allowed under the Minutes of the order dated 8th August 1997. 21.Upon the Court s query as to why and how the Power of Attorney came to be executed by the Petitioner in favour of the Director of Respondent No.1, if no construction was to be put up, Mr.Govilkar drew my attention to various clauses of the Power of Attorney as cited above granting the aforesaid power specifically suffixing the same in respect of TDR and FSI available in respect of the said property . Mr.Govilkar, therefore, contends that whatever that could be done under the power by the Director of Respondent No.1 as the Constituted Attorney of the Petitioner was ultimately to obtain the TDR/FSI available in respect of the said property which was the main mandate of the Minutes of the order dated 8th August 1997. Mr.Govilkar, therefore, argued that submitting the plans, entering into agreement with 11 Trust-Petn-5 tenants, carrying on correspondence with the Authorities, appointment of Architects for repair/reconstruction, the actual development of the property by repair/reconstruction was to be essentially with a view to obtain TDR/FSI available in respect of the suit property and no more. Similarly he pointed out that the consent in Clause 15 of the Power of Attorney, which was to be obtained from the tenants, was to be with a prior approval of the Petitioner. In short he contended that under the Minutes of the order, the Respondents did not have the free hand and absolute authority as all other developers and builders would have in respect of the properties which are not within the heritage precincts and which are not Trust properties and for which no special permission of the High Court would be required to be obtained. 22.It is seen that if the Respondents can carry on any work of construction of unabated, undeterred and unrestricted by rules for heritage building more specially DC Regulation 67 and could carry on construction pursuant to the plans submitted under Regulation 33(7) of the DC Regulations, the very restriction on the sale of the temple, chawl and the temple land would be of no avail. The specific restriction upon the same would be completely diluted. It is consequent upon such restriction on the sale that 12 Trust-Petn-5 the Respondents were granted the FSI, including TDR, which was then available on the suit plot of land which they were entitled to avail of in accordance with DC Regulation 67. Mr.Govilkar s contention that, therefore, taking the FSI/TDR, which was then available on the suit plot, the Respondents could have built upon or developed any other property appears to have been considered by the Division Bench of this Court in the Writ Petition already filed by the Petitioner. 23.Mr.Samdhani drew my attention to the fact that the Respondents have sought to develop the suit property under Regulation 67 and accordingly, obtained the permission of the heritage Committee required thereunder. The permission is dated 21st March 1998 which allows the Respondents to demolish the chawls, structure and put up a new single storeyed structure on the similar footprint as that of the existing structure in accordance with the plans submitted. The construction put up on these plans has been challenged in the Writ Petition and the interim order obtained therein. 24.It is seen that the Petitioner has sincerely and with dedication pursued his role as an Official Trustee for the protection of the Trust property for whom he was appointed by the High Court since 1927 and has sought 13 Trust-Petn-5 to withstand, what the Petitioner considers, certain acts in excess of the entitlement of the Respondents allowed by various Authorities. It is also seen though the construction and development was to be specifically and only under Regulation 67 of the DC Regulations, which is distinct and different from development of the property under Regulation 33(7) thereof, the MMC, MHADA, etc. have completely ignored the distinction and the Respondents have sought to keep the Petitioner at bay and sought to deal with the authorities without restraint and with tenants and occupants of the suit plots without the consent of the Petitioner, expressly required to be obtained under the limited authority granted to them by the Power of Attorney under which they sought to act. Surprisingly the authorities are also seen to have ignored or bypassed the specific mandate under the order dated 8th August 1997 and the limited authority of the Respondents under the Power of Attorney granted to them. In fact, it is astonishing that MHADA Authorities have issued notice/order upon the Petitioner, who is the legal owner of the suit plot and in which the property is declared to have remained vested under the order of this Court dated 9th August 1997, to vacate the Trust land, which order has been challenged in Writ Petition No.1469 of 2009. The unbridled acts of the Respondents and the allowance by the authorities, otherwise not authorised by the 14 Trust-Petn-5 aforesaid order or the Power of Attorney of the Petitioner can be checked and controlled by the Petitioner alone. The Petitioner would require to put on kid gloves before the balloon goes up to safeguard the suit property from further onslaught. The Petitioner knows the facts of the case threadbare. The Petitioner has consistently acted in the interest of the Trust property since 1994 when the initial MOU for development of the property came to be executed and the Minutes of order which later came to be passed. The Petitioner has also filed Writ Petition No.1469 of 2009 and has thwarted attempts to defile the property. He must not throw in the towel at this juncture. It would be in the fitness of things and in the interest of the Trust property, which is the heritage property, that the Petitioner sees it through the end. The Petitioner would be in the best position to give instructions to his Counsel in the Writ Petition in which the Petitioner has obtained an interim order of injunction against further construction. This time is, therefore, not appropriate for the Petitioner to be divested of his appointment as Official Trustee. In fact, the Petitioner s duties are further required to be complied in the Writ Petition. Consequently, though the Petitioner may not have been heeded by the Authorities, his efforts must be and are appreciated by the Court. The Petitioner must prosecute the litigation that he 15 Trust-Petn-5 has commenced with the tolerance and dedication required. The Petitioner s prayer of divesting him of his appointment as Official Trustee, therefore, cannot be granted in the interest of the Trust. 25.There shall be no order on this Trust Petition. No order as to costs. (SMT.ROSHAN DALVI, J.)