1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1752 OF 2008 M/s Happy Home Estate ...Petitioners v/s State of Maharashtra and ors. ...Respondents Mr Aspi Chinoy, Sr. Counsel with Mr M.P.S. Rao i/b M/s Chitnis Vaity and Co. for Petitioners. Mr Ravi Kadam, AG for Respondent Nos.1 to 4. Mr V.M. Parshurami for Respondent No.5. Mr D.D. Madon with Mr S.A. Sawant and Mr H.V. Kode for Respondent No.6. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 16TH SEPTEMBER 2009. 2 ORAL JUDGMENT (PER D.K. DESHMUKH J) :- 1] By this petition, the petitioners challenge the order dated 1st July 2008 passed by the Chief Officer, Maharashtra Housing and Area Development Authority rejecting the claim of the petitioners that they are entitled to redevelop the non-cessed portion of the land. The relevant facts are that the land admeasuring 2469.38 sq.mtrs., bearing survey No.1806 and C.S. No.1169 and final plot No. 1006, TPS IV, situated at Prabhadevi is the subject matter of this petition. Out of total area of that plot, area admeasuring 1048 sq.mtrs. was cessed and the remaining area admeasuring 1421.38 sq.mtrs. was non-cessed property. Admittedly, on 1st October 1982, the State Government issued a Notification under section 41 of the of the MHADA Act 1976 acquiring the non-cessed portion of the plot. That Notification was challenged by the owners of the land by filing writ petition No.525 of 1983. Writ petition No.525 of 1983 was disposed off in terms of the consent terms arrived between the 3 parties. Clauses (1) and (2) of the consent terms are relevant for our purpose. They read as under :- 1.Petitioners agree and undertake to this Hon ble Court to fulfill the terms and conditions of the Intent Letter dated 9.10.85 bearing No.NOC/F/85/16293. On fulfilling the conditions Respondent No.2 will grant NOC to the petitioners. 2. Respondent No.1 (State) agrees to withdraw / cancel notification u/s 41(1) dated 1st October 1982 within one month from issue of final NOC to the petitioners by the respondent No.2 petitioners agree not to claim any compensation / damages. By consent terms, the owners of the land agreed to comply with the terms of the letter of intent dated 9th October 1985 and the State Government agreed to cancel / withdraw the Notification issued under section 41 of the MHADA 4 Act 1976 as a result of which the non-cessed portion had vested in the State Government. 2] The petitioners acquired the property and became owners thereof in the year 1994. According to the petitioners, all the tenants who were occupying the property on non-cessed portion consented to the redevelopment of the property to the petitioners. Therefore, writ petition No.1756 of 1993 was filed wherein it was claimed that an agreement has been arrived at between the petitioners and respondent No.3  Board that the petitioners would develop the cessed portion of the property and the respondent No.3  Board would develop the non-cessed portion of the property. A copy of the agreement is annexed to this petition. Writ petition No.1756 of 1993 was disposed off in terms of the consent terms by order dated 22nd September 1993. In substance, the consent terms provided that the petitioners will develop the cessed portion of the property and the non-cessed portion of the property would be developed by the 5 Board. It appears that thereafter the petitioners developed the cessed portion of the property but no development took place in relation to the non- cessed portion of the property. 3] According to petitioners, they came to know that the Board has decided to get the property developed through respondent No.6  Co-operative Housing Society. Therefore, they filed a representation dated 11th August 2006 before the Board claiming that in terms of the 1993 consent terms, the Board itself can develop non-cessed property and if the Board does not want to develop the property, then as erstwhile owners of the property, the petitioners are entitled to be given preference in developing the property. That representation was not decided by the Board. Therefore, writ petition No.3160 of 2006 was filed claiming a direction to the Board to decide the representation of the petitioners dated 11th August 2006. That writ petition was disposed off by order dated 21st February 2007 directing the Board to 6 decide the representation dated 11th August 2006 in accordance with law. On that representation, an order was made by the Board dated 16th July 2007. That representation was rejected. Writ petition No.1909 of 2007 was filed in this Court challenging that order. That writ petition has been decided by a Division Bench of this Court by order dated 17th January 2008. The Division Bench by that order held that the Board has not taken into consideration the material on record and therefore, the order was set aside and the matter was remanded back to the Board for a fresh decision. Pursuant to this order, the Chief Officer has made the order dated 1st July 2008 again holding that the petitioners are not entitled to claim any right to develop the non-cessed portion of the land. It is this order which is challenged in the present petition. 4] The first contention of the learned counsel appearing for petitioners is that so far as the non-cessed portion of the property is 7 concerned, because of clause (1) of the 1993 consent terms, the petitioners are owners of that portion and if the MHADA itself is not developing the property, the petitioners as owners are entitled to develop the property. It is also claimed that clause (5) of the 1993 consent terms permitted only the Board to develop the non-cessed portion of the property but as the Board has assigned the work of development to respondent No.6 Society, the MHADA cannot develop the property and now it is only the petitioners who can develop the non-cessed portion of the property. The learned Advocate General appearing for Authority, on the other hand, contended that the petitioners are not owners of the non-cessed portion of the property. The property is vested in the State Government by Notification issued in the year 1983 and the ownership of the State Government has not been disturbed either by an order of Court setting aside the Notification or by any registered conveyance executed by Government in favour of the petitioners. He submitted that the claim of the 8 petitioners that because of clause (1) of 1993 of the consent terms, the petitioners became owners of the non-cessed portion of the property is not correct. He submitted that even the petitioners understood till they filed writ petition No.1909 of 2007 that they were erstwhile owners of the property and not present owners of the property. We have also heard learned counsel appearing for respondent No.6. He supported the order of the Board. He pointed out that what was to be decided by the Authority was the representation dated 11th August 2006. That representation claims that the petitioners were erstwhile owners of the property and not present owners of the property and therefore, the petitioners cannot be allowed now to contend that they continued to be owners of the non-cessed portion of the property even after the Notification was issued. The learned Advocate General also stated before us that the development of the property is not assigned by the Board to the respondents, development of the property is being carried out by the Board through the respondent No. 9 6  Society pursuant to a contract that has been entered into between the Board and the respondent No.6  Society. 5] Now, if in the light of these rival submissions if the record of the case is perused, it is an admitted position that so far as the non- cessed portion of the property is concerned, a Notification under section 41 of the MHADA Act has been issued. It is sub-section (3) of section 41 which is relevant for our purpose which reads as under :- 41(3) Where a notification aforesaid is published in the Official Gazette, the land shall, on and from the date on which the notification is so published, vests absolutely in the State Government free from all encumbrances. Thus, on and from the date of issuance of the Notification i.e. 1st October 1982, the non- 10 cessed portion of the land vested in the State Government. The first consent terms of 1983 we have already reproduced above. Perusal of those consent terms shows that it was agreed between the parties that the State Government will withdraw or cancel the Notification issued under section 41 of the said Act. It is also common ground that to this date, the State Government has not issued any Notification cancelling or withdrawing that Notification. The petitioners claim that clause (1) of the 1993 consent terms has the effect of cancelling that Notification. Clause (1) reads as under :- 1.It is declared, confirmed and recorded that the property more particularly described in the Schedule being Exh. A hereto annexed and delineated on the plan hereto annexed and thereon shown red colour boundary line, absolutely belongs to the Petitioners. 11 Perusal of the Schedule Exh.A to these consent terms shows that it describes the entire plot (both cessed and non-cessed portion), therefore it is contended on behalf of the petitioners that clause 1 of the consent terms has the effect of cancelling the Notification acquiring the non-cessed portion. But this contention cannot be accepted for several reasons. The consent terms entered into in 1983 had a specific clause which provided for cancellation of the acquisition Notification. While entering into new consent terms, that clause was deleted. This indicates that the parties did not intend that the acquisition Notification is to be cancelled because now the agreement reached between the parties was for the development of the non-cessed portion of the plot by the Board and that was in consonance with the acquisition of the non-cessed portion for the benefit of the Board. In writ petition No.1756 of 1993, the petitioners themselves have described how agreement was reached between the parties. 12 It is to be noted that the consent terms of 1993 are nothing but reproduction of the agreement which was entered into between the parties and for recording which, writ petition No.1756 of 1993 was filed. Paragraphs 11, 12, 13 and 18 of writ petition No.1756 of 1993 is relevant, which reads as under :- 11. The Petitioners say that as per the consent terms arrived at in writ petition No.525 of 1983 the Petitioners applied the Respondent herein to reconstruct and develop the said plot of land described in Exh.A hereto. The Petitioners say and submit that as per the previous agreement with the Respondents the Petitioners agreed to develop both the cessed and the noncessed portion of the said property subject to their releasing the noncessed portion of the property after the Petitioners complete the developments 13 of the cessed portion of the property. Pursuant to negotiations between the Petitioners and the Respondent Nos.3 and 4 it was agreed that the Petitioners would develop the cessed portions and the Respondent No.l3 would develop the non- cessed portion. The Petitioners say and submit that the proposal before the Respondent No.1 of the Petitioners is that the Petitioners would reconstruct and/or develop the cessed portion and construct a building in which 62 tenements (units) would be given free of cost to the 1st Respondent. The Respondent No.3 would develop the non-cessed portion and utilise the FSI on the property. The Respondent No.3 would therefore be able to construct tenements far in excess of the tenants and occupants on the said property. Also the Respondent No.3 would be able to dispose of at the price it desires the excess tenements (units) it would construct after 14 giving premises to 112 tenants in the noncessed portion. The Petitioners say that the Respondents also gain from the fact that Petitioners are giving prime land free of cost at a prime location at Mahim Division to the Respondents out of the suit property for develop0ment on the noncessed portion of the said property. 12. The Petitioners accordingly put forth a proposal to the Respondents that the Petitioners would develop the cessed property only as per the development rules, with the modification of utilising the Index of 2-0 FSI. The aforesaid increase in FSI was pursuant to the availability of the said FSI as per the rules, bye-laws under the MHADA Act as also the liberty granted by the Hon ble High Court in the consent terms dated 26th October 1988 as filed in writ petition No.525 of 1983 between the then owners and the Respondents 15 herein. The Petitioners further proposed that out of the total tenements which the Petitioners would construct the Petitioners would handover to the Respondent No.3, 62 tenements (units) free of cost in the reconstructed building. In the aforesaid 62 tenements (units) the Respondent No.3 will to accommodate 62 tenements from the cessed plot. Each of the said 62 tenements / units were to have a minimum carpet area of 180 sq.ft. In the cessed portion where the Petitioners were to develop the property and reconstruct a building. The Petitioners proposed that they would be entitled to sell, transfer and dispose off the remaining residential flats, commercial premises and other units in the developed cessed property to the buyer of their choice at such consideration and upon such terms and conditions as the Petitioners may deem fit and proper without reference to the Respondent No.3. 16 13. The Petitioners also submitted a proposal that the non-cessed portion of the said property shall be simultaneously developed by the Respondent No.3 at their own cost and expenses in accordance with the development rules and the tenants and occupants in respect of the cessed and non- cessed property were to be shifted to a transit camp and all costs, expenses were to be incurred by the Respondent No.3 in respect of the arrangement at transit camp to accommodate all the tenants and occupants of the cessed as well as noncessed property being Exh.A. 18. In the circumstances the petitioners say and submit that the petitioners drew up consent terms and forward the same to the requisite authorities under the various acts. The petitioners thereupon forwarded the consent 17 terms which in principal have been agreed and acted upon by all the authorities concerned in respect of the development of the said property being Exh.A hereto. A copy of the consent terms as agreed between the petitioners and the respondents is annexed and marked Exh.D hereto. It is clear that the consent terms were arrived between the parties, a copy of those consent terms was filed at Exh.D to that petition. In paragraph 19 it was stated that though the consent terms have been exchanged and accepted by all the concerned parties, the respondents are not acting on those consent terms. For the purpose of finding out whether according to the petitioners, the 1993 consent terms divested the State Government of the ownership of the non-cessed portion of the property, in our opinion, clause (g) of paragraph 20 of writ petition No.1756 of 1993 is decisive, which reads as under :- 18 The petitioners are also giving up free of cost of prime land at Mahim Division to the respondent No.3 i.e. the non-cessed portion admeasuring 1421 sq.mtrs. It is clear from paragraphs 11, 12, 13, 18 and 20(g) quoted above that the understanding of the petitioners in respect of consent terms at Exh.D to that petition was that the petitioners were giving up free of cost the non-cessed portion of the property in favour of the respondent No.3 in that petition. The respondent N.3 in that petition was the Board. Clause 1 of the consent terms at Exh.D to writ petition No.1756 of 1993 and clause 1 of the Court order passed in that writ petition are identical. The petitioners clearly understood that because of the 1993 consent terms, the State Government continues to be the owners of the non-cessed portion of the property. Perusal of prayer clause of that petition shows that the petitioners are seeking a direction from this Court to the respondents to act in accordance with the 19 agreement at Exh.D to that petition. Perusal of the prayer clause of that petition shows that the petitioners nowhere asked for an order divesting the State Government of the ownership in non-cessed portion of the property, ownership of which vested in it because of the Notification. It is thus clear that the petitioners themselves never understood that the 1993 consent terms would result in divesting the State Government of the ownership of the non-cessed portion of the property, on the contrary they understood that as a result of these consent terms, the State Government will continue to be the owner of the non-cessed portion of the property. This fact is further reinforced by the representation that was filed by the petitioners before the Board dated 11th August 2006. In paragraph 1 of that representation, the petitioners stated thus :- We were the owners of the property being final plot No.1006 (Part) TPS IV, alongwith 20 building standing thereon, known as Mithawala Chawl, Mahim, Sayani Road, Prabhadevi, Mumbai which is totally admeasuring 2469.38 sq.mtrs. Then in ground (C), the respondents stated thus :- C) Since we were earlier owners of the said property and the same is settled by way of consent terms, wherein MHADA agreed to simultaneously develop the said property, but even after the lapse of 13 years, MHADA has not developed the said property, we are entitled to develop the same by way of preferential right. Thus, in the representation, the case of the petitioners was that they were earlier the owners of the property and presently they are not the owners of the property and they were claiming entitlement to develop the property as ex-owners. 21 That representation was not decided, therefore writ petition No.3160 of 2006 was filed. In that writ petition, in paragraph 2(b) again, the petitioners stated thus :- (b) The petitioners say that petitioners were owners of the property, being final plot No.1006(Part), TPS IV, Mahim, alongwith building standing thereon and known as Mithiwalla Chawl, Mahim, Sayani Road, Prahadevi, Mumbai which is totally admeasuring 2469.30 sq.mtrs. ....... By prayer clause (a) of that petition, the petitioners sought direction to the Board to decide their representation dated 11th August 2006. The Division Bench of this Court disposed off that petition by order dated 21st February 2007. The Court directed the Board to decide the representation dated 11th August 2006. The relevant observations read as under :- 22 We find that the respondents can be directed to consider the representation dated 11th August 2006 filed by the petitioner, in accordance with law, after giving due opportunity of hearing to the petitioner and intervenors and decide their respective rights accordingly. Thus, before this Court also, the case of the petitioners was that they are not the owners of the non-cessed portion of the property. It appears that after the Board rejected the representation by order dated 16th July 2007 holding that as erstwhile owners they are not entitled to develop the property, they changed their stand in writ petition No.1909 of 2007 and claimed that they are the owners of the property. This Court set aside the order passed by the Board and remitted the matter back but remission of the matter back was for consideration of representation dated 11th August 2006. It is clear from the order of the Division Bench dated 17th January 2008 that it was urged 23 before the Division Bench that the petitioners are owners of the property and this Court, on finding that that question was not considered by the Board, remanded the matter back. In our opinion, however, for requiring the Board to decide that question, it was necessary for the petitioners to at least amend their representation and merely filing additional submissions taking a stand contrary to that stand was not enough. However, even assuming that because of the order of the Division Bench, the Authority was obliged to consider the question whether because of the consent terms of 1993, the petitioners became owners of the property, in our opinion, the order of the Board cannot be faulted for any reason. It is clear from the facts narrated above that the petitioners who wee parties to the consent terms, who had filed writ petition No.1756 of 1993 to get the consent terms accepted themselves never understood clause (1) of the consent terms to divest the State Government of the ownership of non-cessed portion of the property. The respondents acting pursuant to the consent 24 terms had given alternate accommodation to the tenants on both the portions of the property. Clause (1) of the 1993 consent terms will have to be read in the light of the conduct of the parties to those consent terms before the consent terms were recorded by the Court and after the Court disposed off writ petition No.1756 of 1993. If that is taken into consideration, it is clear that clause (1) of the consent terms related to the cessed portion of the property and not to the non- cessed portion of the property. In any case, it cannot be said to be the intention of the parties to vest by that clause ownership in the petition of the non-cessed portion of the plot because apart from all other things, it will be contrary to the scheme agreed to between the parties that the petitioners will develop the cessed portion and the Board shall develop the non-cessed portion. In our opinion, this will be the reasonable reading of the consent terms. Clause (5) of the consent terms permitted development of non-cessed portion by the respondent No.3. Clause (5) reads as under :- 25 Agreed, recorded and confirmed that non- cessed portion of the property shall be simultaneously developed by respondent No.3 at their own costs and expenses as per relevant Development Rules. All the tenants and occupants, whose names are mentioned in the list already submitted on 20.12.1991 to the respondent No.3 will be shifted to the transit camp, and that the respondent No.3 at their own costs and expenses shall make arrangement to provide suitable transit camp accommodation to all such tenants and occupants of the said cessed and non-cessed property. Hereto annexed and marked Exh. B in the said list. Had it been the intention of the parties to the consent terms that the petitioners would continue to be owners of the non-cessed portion, clause (5) would have contemplated petitioners 26 executing document, transferring ownership of the property to the tenants or the tenants on redevelopment continuing to be the tenants of he petitioners. Clause (5) contemplates the Board developing the property in accordance with relevant Development Rules. It means that on development of the property, the tenants would have become owners of the property and had it been the intention of the parties to the consent terms that petitioners to continue as owners of the property while the property is being developed, consent terms would have provided for the petitioners executing some documents either in favour of the Board or in favour of the tenants to transfer ownership of the property either to the Board or to the tenants. There is no such term included in the consent terms. Even today, the case of the petitioners is that in terms of clause (5), the Board can develop the property. We fail to understand if according to the petitioners they continue to be owners of the non-cessed portion of the property, then how can the Board develop the property effectively 27 without there being any transfer of property either in favour of the Board or in favour of the tenants. In our opinion, the petitioners changed the stand which was consistently taken