: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.731 OF 2009 1. Maharashtra Housing Board Low Income Group Tenements Housing Societies Federation, registered under Societies Registration Act, 1960 and the Bombay Public Trusts Act, 1950, having its office at Pump House, LIG Colony, Samarth Ramdas Marg, JVPD Scheme, Mumbai 400 049 through its President Shri Vishwanth Pundalik Devmane. 2. Vishwanth Pundalik Devmane, And adult Indian inhabitant, aged 58 years, having his address at 1/11, Jyoti Sadan, 6th Cross Gulmohar Road, JVPD Scheme, Mumbai 400 049. ...Petitioners Versus 1. The State of Maharashtra through the Ministry of Housing and the Ministry of Urban Development to be served Through the Government Pleader, High Court, Mumbai. 2. The Maharashtra Housing Area Development Authority, a statutory body incorporated under the provisions of the Maharashtra Housing Area Development Act, 1976 having : 2 : its Office at Griha Nirman Bhavan, Kala Nagar, Bandra(E), Mumbai 400 050. 3(a) The Vice President The Maharashtra Housing and Area Development Authority, an Officer of Respondent No.2 having his office at Griha Nirman Bhavan, Kala Nagar, Bandra(E), Mumbai 400 050. 3(b) The Chief Officer, Mumbai Mandal The Maharashtra Housing and Area Development Authority, an Officer of Respondent No.2 having his office at Griha Nirman Bhavan, Kala Nagar, Bandra(E), Mumbai 400 050. 4. The Municipal Corporation of Greater Mumbai. A Statutory Body, incorporated under Bombay Municipal Corporation Act, having its office at Mahapalika Building, Mahapalika Marg, C.S.T. Mumbai 400 001. 5. Juhu Harshal Co-operative Housing Society Limited, a Society registered under Maharashtra Co-operative Societies Act, 1960 and having it’s Office at 8, Juhu Harshal, Swami Samarth, Ramdas Marg, JVPD Scheme, Mumbai 400 049. : 3 : 6. Tanna Housing Private Ltd. A Company incorporated under the Companies Act, 1956 having its address at 109/110, Super Shopping Complex, Bajaj X Road, Kandivali(West), Mumbai 400 067. 7. Tushar-Bindu Co-operative Housing Society Ltd. a Society registered Under Maharashtra Co-operative Societies Act, 1960 and having it’s Office at Bldg.No.5, Plot No.287, JVPD Scheme, Gulmohur X Road No.9, Juhu, Mumbai 400 049. 8. Swati Mitra Co-operative Housing Society Ltd. a Society registered Under Maharashtra Co-operative Societies Act, 1960 and having it’s Office at Bldg.No.7, JVPD Scheme, Vile Parle(E), Mumbai 400 049. 9. Lalit-Kutir Co-operative Housing Society Ltd. a Society registered Under Maharashtra Co-operative Societies Act, 1960 and having it’s Office at Building No.9, J.V.P.D.Scheme, Gulmohur X Road No.9, Juhu, Mumbai-400 049. ..Respondents. ...... : 4 : Mr.P.K.Samdani, Sr.Counsel with Mr.Sanjay Jain i/b Vinod Mistry & Co. for Petitioners. Mr.G.W.Mattos, A.G.P. for State. Mr.Nitin Thakkar i/b Mr.K.N.Damania for Respondent No.5. Mr.M.P.Rao with Mr.G.C.Mohanty for Respondent No. 6. ...... CORAM : SWATANTER KUMAR, C.J. AND A.M.KHANWILKAR, J. JUDGMENT RESERVED ON : 2ND SEPTEMBER, 2009. JUDGMENT PRONOUNCED ON : 12TH NOVEMBER, 2009. JUDGMENT (PER KHANWILKAR, J.) : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith. Counsel waive service for respective Respondents. 3. By this Writ Petition under Article 226 of Constitution of India, the Petitioners have questioned the validity of allotment of a portion from the larger property bearing Survey No.287, C.T.S. No.19 at Juhu Vile Parle Development Scheme (JVPD Scheme), which is described as Pump Station House, Water Tank and Garden in favour of Respondent No.5. The Petitioners have further prayed for direction against Respondents 2 and 4 to : 5 : demolish and ensure demolition of all construction carried on by Respondent No.5 and/or 6 on the disputed property and/or by utilising the FSI or the TDR Potential or any other benefits in respect of the disputed property. The Petitioners have further prayed for writ of mandamus to direct Respondents 1 to 6 not to interfere with the peaceful use, occupation possession and management of the disputed property by Petitioner No.1 in any manner and in the event, it is held that Respondents 5 or 6 or anyone or more of them are in possession of any part of the said property then direct Respondents 1 to 6 to hand over possession thereof to Petitioner No.1 forthwith. 4. The case made out by the Petitioners in the Writ Petition is that 14 multi-storied buildings were constructed on the larger property for the benefit of persons belonging to low-income group comprising of 280 flats. The said flats were offered for purchase to Co-operative Societies and the Buildings were transferred to the Co-operative Societies on ownership and the land underneath and appurtenant to the said buildings was leased to the Co-operative Societies by the predecessor of Respondent No.2. The layout of the buildings provided for wide open roads and adequate open space with a big playground as per the layout represented to the members of the : 6 : Cooperative Societies. It is the case of the Petitioners that the Petitioner No.1 Society which is registered under the Societies Registration Act, 1960 as well as the Bombay Public Trust Act, 1950 is a Federation of 9 Cooperative Housing Societies to whom the 14 buildings were transferred by the Authorities upon execution of independent Lease Deeds in respect of plots of land on the larger property. Further, Sale Deeds in favour of each of the 9 Cooperative Societies were executed in respect of the buildings constructed on the respective plots of land leased out to them. It is the case of the Petitioners that all the said 9 Cooperative Societies which are lessees of the land and owners of the respective buildings on the larger property together formed a Federation i.e. Petitioner No.1. As per the layout, portion of the larger property admeasuring 663.50 sq. mtrs. was earmarked for Pump Station, Water Tank, and Garden, which facilities were common to all the 14 buildings. The said portion of plot was meant for the common use and enjoyment of all the occupants of all the 14 buildings on the larger property and that it was being so used continuously and uninterruptedly for the past 30 years. It is the specific case of the Petitioners that the said portion of the larger property was handed over to the Petitioner No.1 Federation for the Management of the common facilities of pump station, water tank and public garden as back as in 1984 and the same were in use, : 7 : occupation and possession of the Petitioners since then. According to the Petitioners, the Respondent No.5, a member Society of the Petitioner No.1 who intended to redevelop/reconstruct Building No.8 fraudulently and dishonestly included the said portion of the larger property in its proposal for redevelopment and persuaded the Authorities to allot the said plot to enable the Respondent No.5 to develop and enjoy the same along with the land underneath building No.8 which was to be redeveloped. This was done notwithstanding the fact that the portion of the larger property which was in common use was already in possession of the Petitioner No.1 Federation and the same was being used and meant to be used for common use of all the members of the Petitioner Federation. The No Objection Certificate and execution of Supplementary Lease Deed in favour of Respondent No.5 was without the consent and/or concurrence of the Petitioner No.1 Federation and it was an unilateral action on the basis of false and fraudulent representation by Respondent No.5. Besides, the allotment of plot was contrary to the policy of the Corporation and the Maharashtra Housing Area Development Authority (MHADA). Moreover, the Respondent No.2 had no authority to allot the subject plot by colourable exercise of dividing the same into two parts and illegally describing the same as Tit-Bit (TB) or Neither Tit-bit Nor Independently Buildable (NTB : 8 : NIB) lands. According to the Petitioners, the common areas of larger property cannot be allotted to an individual Society and more so, without inviting the Petitioner No.1 Federation or other Societies to make offers of allotment of the said property. It is also alleged that the said allotment in favour of Respondent No.5 was by ignoring the offers made by the Petitioners and that too at ridiculously low and throw away price. Essentially, the grievance is that the disputed property was in use, possession and occupation of the Petitioners as common facility for all the 14 buildings and its occupants, for which reason, the same could not have been allotted to Respondent No.5-an individual society. Moreover, the allotment was not in accordance with law. This is the broad challenge on the basis of which Petitioners have sought reliefs as referred to earlier. 5. The Respondents 7 and 9 who are incidentally members of the Petitioner No.1 Federation have filed their reply affidavit, more or less adopting the grievance made by the Petitioners in the Writ Petition. Both these Respondents although have filed separate affidavits have taken virtually the same stand. According to them, the pump station and water tank was handed over to the Petitioner Federation on 15th October 1980 for maintenance and management of common services such as supply of water : 9 : to all the 14 buildings and also for maintaining the pump house. They have further stated that the pump house and water tank is situated on the disputed plot along with the garden and the said garden has been in common use and enjoyment of the members and occupants of the buildings belonging to the respective Respondents and the said property is being used for various recreational and cultural activities for past 30 years. According to these Respondents, the disputed plot has been maintained and managed by the Petitioner Federation for the common benefit of all the member Societies of the Petitioner. Even these Respondents have made grievance that the Respondent No.5 have encroached upon the disputed plot and the allotment of the said plot to Respondent No.5 was illegal. It is further stated by them that even the said Respondents were entitled to receive proportionate equal share and/or benefit arising out of the said plot along with other Societies. 6. The Official Respondents 2, 3(a) and 3(b) have opposed this Writ Petition. In the reply affidavit sworn by Kamlakar Dagdu Survade, Assistant Land Manager, Andheri Taluka, Mumbai Housing and Area Development Board, a regional unit of MHADA dated 28th April 2009 and additional affidavit dated 28th July 2009, it is stated that the challenge in the Writ Petition is devoid of merits. In the first place, it would involve disputed : 10 : questions of facts which cannot be adjudicated in exercise of writ jurisdiction. Even on merits, the basis on which the Petitioners have maintained their challenge, is on erroneous assumption and wrong premiss. At the outset, it is pointed out that the Petitioner No.1 Federation is now rendered defunct in view of the fact that 10 Cooperative Housing Societies (comprising of 12 buildings) out of 12 Cooperative Societies (comprising of 14 buildings) in the part layout have obtained N.O.C. from Respondent No. 3(b) to undertake redevelopment of their buildings and have already made arrangements for their independent water connection. The Official Respondents have denied that the low income group housing scheme for construction of 14 multi-storied buildings was undertaken in consultation with the World Bank or that any financial aid was received from the World Bank therefor as alleged. It is stated that the Scheme was implemented as early as in 1960 and the same was completed in mid 1970; whereas, the World Bank had funded some of the projects of the Respondent No.2 in the year 1984-85. It is clearly stated that JVPD Scheme was not one of the Housing Schemes funded by the World Bank. The Official Respondents have categorically denied that the plot on which water tank and pump house is situated was “handed over” to the Petitioner Federation or that the Petitioner Federation has acquired any right, title or interest therein. : 11 : According to the Official Respondents, in a part of the said part layout, the 12 Cooperative Housing Societies had a common underground water tank and a water pump house. Through the said underground water tank and pump house, water was supplied to the 12 Cooperative Housing Societies. It is further stated on affidavit that the portion of the plot on which water tank and pump house is situated is plot adjacent to the building premises of the Respondent No.5. It was NTB NIB plot. It is stated that the ownership of the said plot vested in Respondent No.2. Further, the plot was not a garden plot, as is falsely alleged by the Petitioners but is actually plot which is NTB NIB plot. The official Respondents have asserted that the layout has been approved by the Corporation as per the Development Control Rules on 15th October 1999 which do not describe the disputed property as reserved for garden. The approval of the said layout which was done by following due process of law has been allowed to become final. Considering all these aspects, the portion of the larger property was allotted to Respondent No.5 on certain conditions in two trenches, which allotment was in conformity with the relevant Rules and Regulations and in particular, in consonance with Resolution Nos.5998 and 6041 passed by the Respondent No.2. The portion of plot other than the plot on which water tank and pump house was situated was first allotted to the Respondent No.5 by way of Supplementary : 12 : Lease Deed dated 13th August 2007 as it was NTB NIB plot. While the request of Respondent No.5 for allotment of the said plot was pending, another application was received from Respondent No.5 on 19th June 2007 and 25th November 2007 which was duly considered and eventually offer letter was issued on 12th February 2008 in respect of the TB plot comprising of underground water tank and pump house. The allotment was in consonance with the modified Resolution pertaining to the rates to be charged by Respondent No.2 in respect of the said land, which was decided vide its Resolution No.6260 dated 4th June 2007 passed by Respondent No.2. The affidavit further records that the Respondent No.5 paid the amount in installments in terms of the offer letter and has been allotted the said plot on terms and conditions specified in the letter of allotment. In substance, the stand of the Official Respondents is that the ownership of the disputed property vests with the Respondent No.2 and that neither the Petitioner Federation nor any other Society can claim any right therein. Reliance is placed on Clause 5 of the Sale Deed, executed in favour of the individual Cooperative Housing Societies, which in turn stipulates that the Society expressly agrees that the land underneath and appurtenant to the said building is and continues to be property of the Authority and that the Society has no right, title or interest in the said land except the rights : 13 : reserved under a separate Lease in respect of such land to be executed between the Authority and the Society. Moreover, the allotment of land in favour of Respondent No.5 was in conformity with the extant policy and the relevant Resolutions passed by Respondent No.2. 7. The Respondent No.5 and Respondent No.6 have also filed independent affidavits. The Respondent No.6 is essentially claiming through Respondent No.5, who has been appointed by the Respondent No.5 to redevelop the property belonging to the Respondent No.5 Society. These Respondents have additionally placed on record that there are two more Societies being Jeevan CHSL (Building No.7) and Natraj CHSL (Building No.9) adjacent to the disputed plot who have intentionally not been made parties to the present Petition. According to these Respondents, the other Societies adjacent to the disputed plot have already redeveloped their respective properties. These Respondents have denied that Respondent No.9 Society is adjacent to the said property. Moreover, Respondent No.7 has already redeveloped the Society’s main building and also constructed a separate building for free sale on the TB land alloted to it. Similarly, Respondent No.8 has also redeveloped their building. These crucial facts have not been mentioned in the Writ Petition. These Respondents have : 14 : placed on record that as per the approved layout (as approved by the Corporation) on 15th October 1999. It provides a big playground elsewhere. As aforesaid, all the four Societies Tushar-Bindu CHSL-Respondent No.7, Swati Mitra CHSL-Respondent No.8, Jeevan CHSL and Natraj CHSL, Building Nos.5,6, 7 and 9 respectively close to the disputed land have already carried out their redevelopment work with the necessary NOC for the same with the TB land in their possession. These Respondents have asserted that the allotment of disputed land in its favour is not only after following necessary procedure and in consonance with the relevant rules and regulations but also with clear condition that the Respondent No.5 shall be bound to provide water pump and water tank for supply of water to the buildings which are not developed and do not have independent water tank so far, so long as they are dependent on the said facility. The Respondent No.5 has given undertaking to abide by the said condition, besides paying substantial amount for allotment of the disputed land. These Respondents have also relied on Clause 5 of the Sale Deeds executed in favour of each of the Cooperative Housing Society to assert that none of the Societies nor the Federation has any right, title and interest in the disputed property. Further, the Petitioner No.1 Federation was given responsibility “only of maintenance” of pump house and water tank which was to be used as : 15 : common facility for all the 14 buildings. The land was never transferred to the Petitioners as is sought to be represented. Even these Respondents have contended that the Petition is devoid of merits and the same deserves to be dismissed being filed with ulterior purpose merely to harass the Respondent No.5. The Respondent No.6 has placed on record that he has acted upon the Agreement executed in his favour by the Respondent No.5 to redevelop the property of the Respondent No.5 including the disputed property now allotted to Respondent No.5 by the Respondent No.2. He has incurred substantial expenditure for the redevelopment work to the extent of over Rs. 10 crores. Moreover, the construction of the building was at advanced stage. It has reached up to 6th floor. The said Respondents have supported the opinion of the Chief Officer in the order passed by him on 11th February 2009 after hearing all concerned, which takes the view that it was legitimate for Respondent No.2 to allot the disputed property to Respondent No.5 as the same was in consonance with the policy and after following due process. The Chief Officer has rejected the argument of the Petitioners by clearly recording the concession of the Petitioners’ representative that no Lease Deed has been executed in between the Federation and MHADA in respect of the disputed land. Besides, there was no tangible record to even remotely suggest that the disputed plot was in fact handed over to the : 16 : Petitioner Federation. On the other hand, the Chief Officer has found that as per the approved layout, the plot was not reserved for garden and portion of the plot was NTB NIB and the plot on which water pump and underground water tank was located, was a TB plot. 8. Having considered the rival submissions, the first question that needs to be addressed is: whether the Petitioners or any other Society have any right in respect of the portion of the larger property which is the disputed property now allotted to Respondent No.5. The Petition proceeds on the assertion that the disputed plot was in fact handed over to the Petitioner Federation and the same was in use, occupation and enjoyment of the Petitioner Federation uninterruptedly for last over 30 years. In support of this plea, the Petitioners are not in a position to produce any document which would indicate that the disputed property in fact stood transferred to the Petitioner Federation by the Authority. As mentioned earlier, even before the Chief Officer, it was conceded by the representative of the Petitioner Federation, as is recorded in Paragraph 8.1 of the order dated 4th February 2009, that there is no documentary and contemporaneous evidence to establish that possession of the portion of disputed property was handed over to the Petitioners. Even the documents executed in favour of the : 17 : respective Societies as well as individual members, in no way, support the stand of the Petitioners that the disputed property was under the control of the Petitioner Federation as such. The Petitioners have relied on Clause (7) of the Sale Deed between Respondent No.2 and the Cooperative Societies. However, the said Clause merely provides that the common services other than that of street lights but not including the pump stations and the water tank have been handed over on 15th October 1980 by the Authority to the Federation of Co-operative Societies formed by the Cooperative Societies in the Scheme area. This Clause merely refers to handing over of pump stations and water tank to the Petitioner Federation by the Authority. That is of no avail to the Petitioners. The Petitioners have then pressed into service communication dated 9th May 1984 sent under the signature of Executive Engineer of Housing Board to the Assistant Engineer Water Works. The same reads thus: “BOMBAY HOUSING & AREA DEVELOPMENT BORARD Phone : 538331 536411 Griha Nirman Bhavan, Bandra (East), Bombay – 400 051. CB/IT/683 OF 1984 Date : 9-5-84 : 18 : To, The Asstt.Engineer, Water Works (K-West Ward), Andheri (West), Bombay. Sub : Transfer the water meter in the name of M.H.B. L.I.G. Tenants Housing Society Federation. ----------------------------------------------------------------- Sir, Adverting to the above I have to inform you the the 280 Ts.under L.I.G. J.V.P.D. Pump House, had been handed over to the above Society w.e.f. 15.10.1980. You are therefore requested to please transfer the water connection No.Kw-433-0004 for the above tenants in the name of M.H.B. LIG, Tenants Housing Society Federation immediately. Yours faithfully, Sd/- F.Executive Engineer Housing Maintenance Division Bombay Copy forwarded with compliments to the Vice President LIG Ts.Housing Society Federation Samarth Ramdas Marg, J.V.P.D. Scheme water pump house, L.I.G. Colony, Bombay-400 048 for favour of information.” Even on liberal construction of this communication, it is not possible to sustain the plea taken by the Petitioners that an inference be drawn that the disputed property was in possession and control of the Petitioners. Reliance is also placed on other communications at Exhibit H and Exhibit I. These communications are between the Secretary of Juhu Harshal CHSL : 19 : and the President/Secretary of the Petitioner Federation pertaining to shifting of water meter located in their compound. Much emphasis was placed on communication dated 28th June 2007 Exhibit J issued under the signature of Chief Officer of the Board to the Secretary of Lalit Kutir CHSL. The same reads thus: “Mumbai Housing And Area Development Board (A MHADA Unit) MHADA, No.AEM/M.B./JVPD/Lalit Kutir/3154/Land-Breach/07 Date 28.06.07. To, Secretary, Lalit Kutir Co-op.Housing Society (Ltd.) B.No.10, Vile Parle, Juhu Scheme, Mumbai 400 049. Sub : Regarding Plot besides building of your Society at JVPD. Ref : Your letter dated 06.12.04. Sir, You are being informed with regard to referenced letter on aforesaid subject that, plot beside your Co-op. Housing Society will not be sold to you. Also, as per resolution of MHADA, said plot will not be sold even in future. Said plot is being kept reserved for entertainment ground for resident of buildings of surrounding and kindly take note of this. Sd/- Chief Officer, Mumbai Board.” In the first place, the official Respondents in affidavit have explained : 20 : the circumstances in which this communication has been issued. Suffice it to observe that this communication will be of no avail to answer the point in issue as to whether the disputed property was handed over to the Petitioner Federation or for that matter, any other member Society. This communication merely records the assurance that the plot will not