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 ] Union Act, 1926 and a ] Representative Union approved ] under the provisions of Bombay ] Industrial Relations Act, 1946 ] having its registered office at ] 42, Kennedy Bridge,Mumbai 400004]..Petitioner versus 1. The State of Maharashtra ] through its Department of Urban ] Development, Mantralaya ] Mumbai 400 032 ] 2. The Municipal Corporation of ] Greater Mumbai,having its office] at Mahapalika Marg,Mumbai 400001] 3. The Municipal Commissioner, ] Municipal Corporation of ] Greater Mumbai, having his ] office at Mahapalika Marg, ] 2 Mumbai 400 001 ] 4. The Brihan Mumbai Electric ] Supply and Transport Undertaking] an Undertaking of Municipal ] Corporation of Greater Mumbai ] established under the provisions] of Mumbai Municipal Corporation ] Act, 1888 having its head office] at BEST Bhavan, BEST Marg, ] Colaba, Mumbai 400 001 ] 5. Shri Uttam Khobragade ] General Manager,The Brihanmumbai] Electric Supply and Transport ] Undertaking, an Undertaking of ] Municipal Corporation of ] Greater Mumbai, established ] under the provisions of Mumbai ] Municipal Corporation Act, 1888 ] having its Head Office at BEST ] Bhavan, BEST Marg, Colaba, ] Mumbai 400 001 ] 6. The Deputy Director ] Town Planning for Greater Mumbai] at Mumbai ] 7. M/s. Vijay Associates (Wadhwa) ] Constructions Pvt.Ltd. a company] incorporated under provisions ] of Companies Act, 1956, having ] 3 its registered office at 425-A, ] Vasukamal, 14th Road, Bandra ] (West), Mumbai 400 050 ]..Respondents Mr. V. M. Thorat i/b. Mr. Pramod Patil for the Petitioner. Mr. Pradip Jadhav, AGP for the State. – Respondent No.1 and 6. Mr. C. U. Singh, Sr. Counsel with Ms. S. M. Modle for MCGM – Respondent Nos. 2 and 3. Mr. D. G. Dhanure i/b. M/s. M. V. Kini & Co. for the Respondent No.4. Mr. V. A. Thorat, Sr. Counsel with Mr. D. G. Dhanure and Mr. Vaibhav Sugdare i/b. M/s. M. V. Kini & Co. for the Respondent No.5. Mr. Janak Dwarkadas, Sr. Counsel with Mr. Parimal Shroff, Mr. Subodh Joshi, Ms. Radhika Kalpatrai i/b. M/s. Parimal Shroff & Co. for the Respondent No. 7. CORAM: S.B. MHASE & A.A. KUMBHAKONI, JJ. Date of Reserving the Judgment: 4th July,2008. Date of Pronouncing the Judgment:21st August,2008. ORAL JUDGMENT : (Per: A. A. Kumbhakoni, J.) In view the peculiar facts and circumstances of this case the learned counsels appearing on behalf of all the parties requested us that instead of hearing them for admission of this petition, particularly on the issue of interim relief, we may hear all of them 4 for final disposal of this petition at the admission stage itself, as in their submission they would be advancing similar arguments for both the purposes. Even otherwise this petition raises such issues which require detail scrutiny at our hands. Hence we grant Rule and make it returnable forthwith. All the learned counsels appearing on behalf of the Respondents waive service of the rule on the respective respondents. We have heard all of them for couple of hours each for almost seven consecutive working days and reserved the judgement, which is being delivered today. 1. The petitioner is a Recognised Representative Union of workers of “Brihan Mumbai Electric Supply and Transport Undertaking” (hereinafter referred to as the “BEST” for the sake of brevity), which is an Undertaking of the Municipal Corporation of Greater Mumbai (hereinafter referred to as the “said Corporation” for the sake of brevity). The 2nd Respondent herein is the said Corporation and 4th Respondent herein is the BEST. 5th Respondent herein is the General Manager of BEST who has been made party by his name. The 1st respondent is the State Government. 2. The dispute between the parties in the present 5 petition is in respect of a piece of land. Normally, we would have referred to it as “a plot”. However, we are not doing so as there is controversy amongst the parties as to whether in law, this piece of land in issue can be referred to as “a plot” or not. This piece of land which is the subject matter of the present writ petition admeasures 27,913.93 sq. meters and is a part of Survey no. 6 (part)i.e. City Survey no. 1(Part) of Village Goregaon, Oshiwara, Mumbai, (hereinafter referred to as “the suit property” for the sake of brevity). For the purpose of identification of the suit property, at least in the beginning, we must state that the suit property has been marked as “Plot No.2A” by the BEST in its records,though it is the specific contention of the Respondents that the larger portion of CTS No. 1(part) which admeasures 1,54,082.40 sq. meters ( hereinafter referred to as 'the said large track of land' for the sake of brevity) has not been sub divided into various plots in the eyes of law. We will refer to this controversy at some length at an appropriate stage hereunder. Be that as it may. 3. In the beginning we give hereunder the admitted, but only relevant, Chronology of Dates and 6 Events to understand the facts of the case with some precision. This Chronology will be also handy at the later stage of this Judgment when we will be considering the contention of one of the contesting Respondents i.e. Respondent No. 7, the Developer, that this Petition is liable to be dismissed on the ground of delay and latches, apart from other grounds taken up in defense. 13 th April 1973 :By way of Land Acquisition Award bearing No. LAQ 6748 an area of 95,721 sq. meters out of Survey No. 6 was acquired for Staff Housing of BEST workers and was handed over to the BEST. 29 th August,1974 : By way of Land Acquisition Award bearing No. LAQ 280 an area of 5836.14 sq. meters out of Survey No. 6 was acquired for Staff Housing of BEST workers and was handed over to the BEST. 23 rd October,1989 : A Lay Out Plan for sub- dividing the said large track of land was prepared. In this Lay out Plan, the suit property has been marked as Plot No.2A. 11 th May, 1993 : The Revised sanctioned Development Plan prepared under Maharashtra Regional and Town Planning Act, 1960 (hereinafter referred to as “the MRTP Act”) came into force in which the said 7 large track of land including the suit property was reserved for “BEST Bus Depot, Scrap Yard and Housing”. ---------- : Various portions of the said large track of land used by the BEST for following purposes :- (a)1,69,30.91 sq.mts. Constructing 10 buildings for Staff Housing (b) 5,025.01 sq.mts. Scrap Yard. (c) 7,557.05 sq.mts. Goregaon Bus Depot. (d) 6,540.75 sq.mts. Oshiwara Depot. 17 th October,1995 : The BEST submitted a proposal with the State Government seeking permission to use that portion of the said large track of land which by this time was still laying vacant for commercial purpose, in addition to the purposes for which it was reserved under the aforesaid revised Development Plan. 19 th November,1997 : The State Government issued an order under Section 154 of the MRTP Act directing the said Corporation to take steps to carry out requisite amendments in the Regulation no 9 of the Development Control Regulations, 1991 (hereinafter referred to as the “said DCR”) by taking steps under Section 37(1) of the MRTP Act. However, the said Corporation failed to publish the Notice accordingly within a period of 60 days from the aforesaid Directives. 8 24 th August,2004 : In view of the failure of the said Corporation to take steps under Section 37 of MRTP Act 1960 accordingly, the State Government itself issued a Notice in exercise of its powers under sub Section 1(A) of Section 37 of the MRTP Act. 6 th /8 th Sept.2004 : The said Notice was published in the local newspapers. 9 th Sept,2004 : Said Notice was published in a Government Gazette. 13 th May,2005 : The Deputy Collector of Town Planning submitted a report in this regard to the State Government. 24/27 th July 2006 : The Government published requisite Notification under Section 37 of the MRTP Act effecting amendment in Regulation No. 9 of said DCR. Sept. 2006 : BEST issued Tenders inviting bids for the development to be carried out at the suit property. In all 66 tenderers purchased tender forms. The reserved rate of payment of non refundable deposit was notified as Rs.23,941/- per sq. meters. 8 th September, 2006 :Pre-bid meeting was held. 18 th September, 2006 : Bids of 9 tenderers were opened. One tenderer was disqualified due to submission of invalid Solvency Certificate. The 7th Respondent offered highest bid and quoted rate of 9 Rs.57,000/-(as against the reserved bid of Rs.23,941/-) per sq. meter for payment of non refundable deposit. Thus, the 7th Respondent was adjudged as the highest bidder. 18 th May, 2007 : The 7th Respondent paid Rs.2,23,95,87,000/-(Rs. Two Hundred Twenty Three Croers Ninty Five Lacs and Eighty Even Thousand Only) @ Rs.57,000/- per sq. meter for 39,291 sq. meters to the 4th respondent. The 4th Respondent executed Agreement for Development with the 7th Respondent. 14 th June, 2007 : The 7th Respondent received an IOD for the development of the suit property. 21 st June, 2007 : The 7th Respondent received Commencement Certificate to commence the construction. --------- : It is the case of the 7th Respondent that up till now the construction has proceeded substantially and that the 7th Respondent has put in or spent about Rs. Thirty Cr. towards the developmental activities carried out at the suit property, including Rs. 2.23 Cr. Towards stamp duty and registration fees etc. 9 th October 2007 : Present Writ Petition filed. 4. The Petitioners have filed this Petition in the light of the aforesaid Chronology of Events, impugning 10 or challenging :- (i) Validity, legality and propriety of aforesaid Notification dated 27.7.2006 issued by the State Government in exercise of its powers under Section 37(2)of the MRTP Act whereby Regulation No. 9 of said DCR has been amended; (ii) The decision of the 5th Respondent of allotting the suit property to the 7th Respondent for commercial development; (iii) Resolution dated 6.11.2006 of the BEST approving the Agreement with the 7th Respondent for development of the suit property. (iv) Building and other plans sanctioned by the said Corporation permitting the 7th Respondent to put up construction and/or make development on the suit property. 5. The Petitioners have raised following issues for consideration of this Court by way of the present Writ Petition:- (I) Whether the suit property is affected by Coastal Regulation Zone 11 Notification and Mangroves ? (II) Whether the Notification dated 27th July,2006 amending Regulation No. 9 of the said DCR is liable to be struck down on the ground of non-compliance with the procedure prescribed by Section 37 of MRTP Act, 1960? (III) Whether the suit property is a separate plot prepared on account of an alleged approved sub division of original Survey No. 6(Part)i.e. CTS No. 1 (Part)? (IV) Whether the Resolution dated 6.11.2006 passed by BEST is sustainable in law and in view of the facts of the case? (V) Whether the Agreement dated 18.5.2007 entered into between 5th and 7th Respondent and all consequential Agreements/Contracts/Writings/Permissio ns/Sanctions are sustainable in law and in view of the facts of the case? 6. Instead of reproducing at this stage the entire submissions of the petitioner followed by entire 12 replies thereto given by the Respondents, we propose to set out submissions of Petitioner and the Respondents herein along with our conclusions in that regard, point-wise or issue-wise for the better appreciation of the rival contentions. 7. POINT NO. 1 : Delay and Latches The Respondents, particularly, the 7th Respondent has contested the Petition on the ground that the present Writ Petition suffers from delay and latches. It is contended on behalf of the 7th Respondent that by the time the present petition was filed in this Court, the 7th Respondent had already been out of pocket by at least Rs.223,95,87,000/- towards only the non-refundable deposit made in terms of their successful bid and consequent aforesaid Agreement of Development dated 18th May, 2007. In addition thereto, it is contended by the 7th Respondent that the 7th Respondent has spent amounts towards stamp duty and registration fee for getting the aforesaid agreement duly stamped and registered. It is further contended that the 7th respondent has also incurred additional expenses to the tune of about Rs.30,00,00,000/- (Rs. 30 Croers)in pursuance of the Development Agreement for the purpose of actually conducting developmental 13 activities at the suit property after it was granted IOD on 14.6.2007 and Commencement Certificate on 21.6.2007. 8. It was contended by the learned Senior Counsel appearing on behalf of the 7th Respondent, in the aforesaid background that the Notification, issued under section 37 of the MRTP Act is dated 20.7.2006 and that the present petition has been filed as late as on 9.10.2007. He drew our attention to the Chronology of the Events set out at the threshold of this Judgment and submitted that in the meantime the 7th Respondent has acted bonafide in taking various steps and in spending the huge amounts. He relied on the following two judgments of the Hon'ble Supreme Court to submit that we should not exercise our discretionary writ jurisdiction in entertaining this writ petition, in view of the unexplained delay and latches on the part of the petitioners. (1)The Moon Mills Ltd.,vs. M. R. Meher, President Industrial Court, Bombay & Ors. Reported in [AIR 1967 Supreme Court 1450] (paragraph 6) (2)Maharashtra State Road Transport Corporation vs. Balwant Regular Motor 14 Service, Amravati & Ors. Reported in [AIR 1969 Supreme Court 329](para 6) 9. On the other hand, the learned counsel appearing on behalf of the petitioner contended that in the petition itself, the petitioner has set out various steps which the petitioner took after the petitioner became aware of the modifications/amendments sought to be made in the said DCRs by the State Government and the steps that were taken by the BEST towards disposal of the suit property. The petition has been filed by the petitioner as expeditiously as possible after exhausting various remedies available in law and only after realising that the petitioners were not getting justice at the hands of other Authorities and by taking recourse to other remedies available to them in law. 10. The Supreme Court in the case of Trilokchand Motichand Vs. H.B.Munshi reported in AIR 1970 SC 898 ( Paragraph 10 & 11) has held that in India each case will have to be considered on its own facts and that such issue of delay and latches is one of discretion of the court to follow from case to case. Similar observation also can be found in the case of R.S.Deodhar Vs. State of Maharshtra reported in AIR 15 1974 SC 259 (paragraph 9). After having considered the rival submissions in this regard in the proper perspective, we are of the view that the present petition cannot be thrown out merely on the ground of delay and latches. This writ petition raises important issues of law which need to be dealt with extensively by us. Even otherwise the Chronology of the Events set out at the threshold of this Judgment will certainly demonstrate that the petitioners have filed this petition on 9.10.2007; whereas the 7th respondent paid the amount of consideration set out herein above and got the agreement in issue executed only on 18.5.2007. The IOD has been issued on 14.6.2007 and the Commencement Certificate has been issued on 21.6.2007. 11. These dates in particular show that the petition has been filed within five months from the execution of the Agreement in issue and within about three and half months of issuance of IOD and /or Commencement Certificate. In this regard, we cannot over look the fact that the petitioner is a recognised representative of workers of the BEST and is trying to enforce its alleged rights and/or claims against organisations like BEST, the said Corporation, the 16 State Government and obviously financially sound 7th respondent who has capacity to invest hundreds of crores of rupees in a development project. 12. Considering the overall strength and weakness of the contesting parties and the Chronology of Events set out at threshold of this Judgment, we are of the view that the petition does not suffers from such gross delay and latches that it need not even be entertained by us on these grounds alone. 13. It was also contended on behalf of the respondents that the conduct of the petitioner is blame worthy in as much as the impugned modification and/or amendments in the said DCRs related to three sites of the BEST and that the petitioner was prosecuting its claim and making grievance only in respect of the suit property. In other words, it is contended that the petitioner was not raising even an eyebrow in regard to three sites of the BEST situate at Mahim, Kurla and Dahisar which were also affected by the amendment/modification of the said DCRs in issue and that the petitioner was selectively making a grievance about the suit property alone. 17 14. The learned counsel appearing on behalf of the 7th respondent relied on the Judgment of the Supreme Court delivered in the case of State of Maharashtra vs. Digambar [(1995)4 Supreme Court Cases 683)] (paragraph 19) to buttress his submission that in view of this blame worthy conduct of the petitioner, we should not exercise our extra-ordinary discretionary constitutional writ jurisdiction under Article 226 of the Constitution in the present case. The aforesaid Paragraph 19 reads thus : 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person’s entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 15. The learned counsel appearing on behalf of the petitioner on the other hand contended that in as much as the modification/amendment effected in the said DCRs is concerned, the same has impact on the aforesaid 18 three sites as against the suit property in a factually and actually different manner. In as much as the suit property is concerned, it forms part of the said large track of land and that excepting housing, the other purposes for which the said large track of land is reserved for the development have been already accomplished on account of the developments that have already been carried out by the BEST at various portions of said large track of land other than the suit property. It is contended on behalf of the petitioners that no part of the properties of the BEST situated at Mahim and Dahiser are reserved for housing of workers of the BEST and that at the property of BEST situate at Kurla quarters for workers of BEST were already provided which at present are being redeveloped. On the basis of these factual contentions it is submitted on behalf of the petitioners that the petitioner was justified in filling this petition only in respect of the suit property and in not raising any objection in respect of the other three properties of the BEST situate at Mahm, Kurla and Dahisar. 16. In view of the aforesaid nature of controversy it is to be noted that the Respondents have not placed on record the factual details in regard to the sites of 19 the BEST situate at Mahim,Kurla and Dahisar enabling us to assess the impact of the modification/amendment effected in the said DCRs which are impugned by the present writ petition, on those properties. In absence of any factual details in that regard, we are unable to appreciate the contentions raised on behalf of the respondents in this regard, especially on account of the aforesaid factual dispute raised in that by the Petitioner. Even otherwise only because the petitioners have not raised any objection in regard to other sites, and have raised objections in regard to only the suit property, it cannot be said that the conduct of the petitioners is blame worthy to such an extend that we should refuse to exercise our extra-ordinary constitutional writ jurisdiction in this regard and even refuse to examine the case even in regard to the suit property. In as much as the suit property is concerned, in the context of the said large track of land and in the background of various factual aspects of the matter brought on record as to its actual user, we are of the view that it is necessary for us to examine the legal issues raised by the petitioner. 17. In our view, mere fact that the petitioners have not questioned the correctness of the impugned 20 notification and/or amendments/modifications effected in the said DCRs in regard to other aforesaid three sites of the BEST, cannot detain us in examining the correctness thereof in regard to the suit property. If ultimately we find that the impugned notification and/or amendments/modifications effected in the said DCRs are illegal,unsustainable in law and in view of the facts of the case, it may not be just and proper to let the same go without any scrutiny by us on the ground that the petitioners have let it go in regard to other three sites of the BEST. 18. In view of the aforesaid factual background of the present case, we are of the view that none of the aforesaid three judgments of the Supreme Court apply to the facts of this case. In our view, the facts of the present case are eloquent enough to reject the contention of the respondents that the present petition is required to be thrown out and need not be considered on the ground of delay and/or latches as also on the ground of alleged blameworthy conduct of the petitioner. We will therefore proceed to consider the rival contentions raised by the parties on merits. 19. POINT NO.2: Whether the suit property is 21 affected by Coastal Zone CRZ Notification: It is the contention of the petitioner that part of the suit property is affected by Coastal Zone Regulation Notification and that part of the suit property is also covered by mangroves. It is, therefore, contended by the Petitioner that the development on the suit property is not permissible in law and on this count also the development in issue is unsustainable in law and in view of the facts and circumstances of the case. 20. An affidavit-in-reply has been filed by the 7th respondent dated 7.12.2007 making out a case that the 7th respondent has made necessary applications to MOEF under Environmental Impart Assessment Notification seeking necessary clearance and that the application is pending with MOEF. However, in the affidavit-in-reply filed on behalf of the corporation dated 31.1.2008, it has been clarified that the suit property is only partly affected by CRZ-II and it is not that the entire suit property comes under CRZ-II. This affidavit further explains that the 7th respondent has submitted plans for putting up construction on such area of the suit property which is not affected by CRZ-II. In other 22 words the contention is that the construction of buildings proposed by the 7th respondent is not on such area of the suit property which is covered by CRZ-II, but is on such area