: 1 : 2173-11-fa-Judgment=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2173 OF 2011 WITH CIVIL APPLICATION NO. 4759 OF 2011 Sumukh Anthony Dias A-1102, Vikas Marg, Link Road, Mith Chowki, Malad (West), Mumbai – 400 064. .. Appellant v/s. 1. Anthony Benedict Dias & Ors. R/at 201, Amore, 316, Perry Cross Road, Bandra (W), Mumbai – 400 050 2. Wayne C. D’Lima R/at 601, Almar Arcad, F. Augustine D’Souza Road, Orlem, Malad (W), Mumbai – 400 064. 3. Municipal Corporation of Greater Mumbai, Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai – 400 001. .. Respondents ......... Mr. R.S. Apte, Sr. Counsel with Ms. Divya S. Sanghvi for the appellant Mr. P.K. Dhakephalkar, Sr. Counsel i/b M/s. Pravin Mehta & Mithi & Co. for respondent no. 2. ......... : 2 : 2173-11-fa-Judgment=.sxw CORAM : A.V. NIRGUDE, J DATE : 1st DECEMBER,2011. P.C. : 1. The original plaintiff filed this appeal challenging the judgment and order dated 1st October, 2011 passed by the learned Judge of the City Civil Court, Dindoshi, Goregaon, Mumbai in L.C. Suit No.3129 of 2006. The facts leading to this litigation in short can be stated as under. 2. In 1973, the respondent no.1 received the suit land a vacant plot of land and other properties in partition that took place between his siblings. In 1976, the Urban Land (Ceiling and Regulation) Act, 1976 was introduced. The respondent no.1 filed a declaration before the ULC Authority pursuant to the notice issued by them. The respondent no.1 then appeared before the ULC authority for making submissions before finalizing the extent of land which could be declared as surplus. The respondent no.1 on 25th November, 1991 appeared before the ULC authority and produced documents. The ULC authority on perusal of the documents held that as many as 9 pieces of Urban land came to the share of respondent no.1. The total holding of respondent no.1 was 6250.7 sq. meters of urban land. Out of this holding, land admeasuring 4673.4 sq. : 3 : 2173-11-fa-Judgment=.sxw meter fell in the non development zone and so, the ULC authority held that only the remaining 1577.3 sq. meters land would be vacant land within the meaning of ULC Act. As per the provisions of the ULC Act, the respondent no.1 at the most could have held 500 sq. meters of land and the remaining land would be treated as surplus land. But in order to protect his land, the respondent no.1 made oral submission before the ULC authority wherein he stated that he has two major sons namely the appellant and his brother. He further stated that they too are entitled to have ceiling limit of 500 sq. meters land separately. In view of this submission, the learned Officer who sat as authority under ULC Act gave a ruling that the respondent no.1 could save all his land because he and his family members would be entitled to have 1500 sq. meters land in aggregate. He then held that there was no surplus land with the respondent no.1. The respondent no.1 thereupon entered into sale transactions of various lands after obtaining consent from his sons and sold them. 3. However, the respondent no.1 entered into development agreement on 31st December, 2005 with the respondent no.2 in respect of the suit piece of land without seeking permission/consent of the appellant. Soon : 4 : 2173-11-fa-Judgment=.sxw thereafter in 2006, the respondent no.2 secured necessary IOD and Commencement Certificate for development of the suit land on 24th January, 2006. On 7th July, 2006 the appellant filed the present suit for declaration that the IOD and Commencement Certificate issued by respondent no.3 Municipal Corporation were illegal and were in violation of the provisions of ULC Act. He also sought permanent injunction against the respondent no.1 and 2 from developing the suit land. During the pendency of the suit, due to certain directions issued by this Court in related proceeding arising from this suit, the Executive Engineer of the Municipal Corporation directed the respondent nos. 1 and 2 to get necessary clarification from ULC authority. The respondent no.2 thereafter obtained a letter from ULC authority and relying on that the Executive Engineer issued a fresh IOC and Commencement Certificate. 4. The appellant plaintiff asserted in the plaint that in view of the above mentioned facts specially the representation made by the respondent no.1, his father and the order passed by the ULC, he has a right to the suit land as co-owner. He said due to the representation made by his father and the order passed by the ULC his right is recognized by the competent authority. He, therefore, asserted that his father could not have : 5 : 2173-11-fa-Judgment=.sxw handed over the suit land for development to the respondent no.2 unilaterally without obtaining his consent etc. The respondent no.1 contested the suit saying that the appellant had no right to the suit property in view of the law of Succession applicable to the Christians. The learned Judge of the trial Court in view of the rival contentions framed certain issues, allowed the parties to lead evidence and held that the appellant plaintiff did not have any right in the suit property and so his suit was dismissed. 5. After perusal of the entire proceedings and after hearing the submissions of the learned Counsels and pleadings and evidence, following points arose for my consideration. (i) Whether the appellant plaintiff has title to the suit land ? (ii) Whether the appellant plaintiff has right to the suit land based on principle of estoppel embodied in the provisions of Section 115 of the Evidence Act ? 6. It is common ground between the parties that since the parties are Christians, the appellant plaintiff would not get right to the suit property during the lifetime of his father. It is his case, that because his father made certain representation indicating that along with him his two major sons : 6 : 2173-11-fa-Judgment=.sxw have right to the property which was subjected to the provisions of ULC Act, he would get co-ownership. This belief of the appellant plaintiff was held to be incorrect by the learned Judge of the trial Court. I am also of the same view. On perusal of the order passed by the ULC Act on the representation of the respondent no.1 it is clear respondent no.1 had not filed any written objection to the proposal of the ULC authority for holding his land as surplus land. It is when the matter was called out, the respondent no.1 disclosed that he has two major sons and they have individual entitlement to hold land upto 500 sq. meter. The learned Officer erroneously thought that the vacant land held by the respondent no.1 could be divided amongst three persons of the family and if such division is permitted, there would be no surplus land. This conclusion was patently incorrect but it is still intact and is in force. In other words, a patently erroneous order passed by the ULC authority benefited the respondent no.1. Before passing the order a notice was issued by the ULC authority to the respondent no.1 alone. The notice was not give to the appellant or his brother. They were not heard in the matter. They never any representation that they are co-owners of the land in question with the respondent no.1. As said above, during the argument, the names of the appellant and his brother cropped up and as observed above, the : 7 : 2173-11-fa-Judgment=.sxw erroneous order was passed. By no stretch of imagination, it can be said that this order has created or recognized any right to the lands in question. Besides, the object of the ULC Act is not to create any right in lands/holdings by its operation but to prevent individuals from controlling large tracks of land and to remove the imbalance of holdings etc. 7. The principle of estoppel is embodied in Section 115 of the Evidence Act. Section 115 reads as under. “115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 8. The argument of the appellant is that the respondent no.1 by his declaration before the ULC authority permitted him to believe that he is co-owner of the suit land. For the sake of argument one may agree to this submission. But the later part of the definition of estoppel is not completed in this case. The appellant plaintiff after believing that he is co-owner of the suit land did not deal with the property and did not act to his/others detriment and so the case of estoppel is not made out in this case. The illustration given below in Section 115 is purposely quoted : 8 : 2173-11-fa-Judgment=.sxw above to illustrate a typical case of estoppel. In this case, the respondent no.1 and the appellant did not induce any third party to buy the suit property or any part of it from the appellant and then did not come to Court for getting such transaction set aside. The learned Counsel appearing for the appellant on his point placed reliance on two judgments. I will deal with these judgment one by one. (i) Smt. Shivani S. Roy & Anr. Vs. Shri Hari Pada Roy and Ors 1998(1) Bom.C.R. 305 :- The facts of the Shivani’s case are different and the ratio laid down in the judgment are not at all applicable to the facts of this case. This was a suit for partition. Plaintiff Shivani sought partition of suit property, a residential flat in Mumbai against her brother-in-law. Admittedly, the suit property belonged to Shivani’s late husband and his brother, the defendant no.1. The defendant no.1 contended that when the flat was purchased in the joint name, the entire price for purchase of the flat was paid by him alone. This Court having regard to the joint ownership and certain admissions given by the defendant no.1 that the suit flat jointly belonged to him and his brother rejected his defense. There is detail discussion in this judgment in respect of admissions given by the defendant no.1 about joint ownership etc. : 9 : 2173-11-fa-Judgment=.sxw (ii) The second judgment is of Supreme Court in the case of B.L. Sreedhar Vs. K.M. Munireddy (2003) 2 SCC 355. : - This is a judgment discussed the principle of estoppel. Father of the appellants gave consent to re-grant certain lands under certain statutory provisions in the name of his son “G” alone. “G” thereafter sold part of the land to the to the respondents. Ten years later, the appellants’ father filed suit for declaration that he was absolute owner of the suit land and sought injunction against the respondent purchasers. The Supreme Court held that the High Court was right in holding that the appellants as well as their father were bound by the principle of estoppel. This judgment is not applicable to the facts of this case and will not help the appellant. 9. There is one more point which is requires consideration. The learned Counsel appearing for the appellant as a last resort asserted that the appellant is still entitled to a declaration that IOD and Commencement Certificate granted by the respondent no.3 Corporation to the respondent nos. 1 and 2 is illegal. He pointed out that the Municipal Officer had given certain directions to the respondent nos. 1 and 2 and the direction was not implemented. He said that despite of disobedience of the : 10 : 2173-11-fa-Judgment=.sxw directions given by the Municipal Corporation ultimately gave IOD and Commencement Certificate and so such IOD and Commencement Certificate is illegal. I have narrated this aspect of the case while narrating the facts. However, this submission is devoid of merit because as per the direction given by the Municipal Officer, the respondent nos. 1 and 2 obtained a fresh NOC from ULC authority. It is beyond the scope of the suit to examine as to whether the ULC authority were right in giving a fresh NOC but the fact remains that such NOC was issued by ULC authority and so relying on the same, the Corporation issued new IOD and Commencement Certificate. This act on the part of the Corporation can not be said to be illegal. The Appeal thus fails. Appeal is dismissed accordingly. In view of this, civil application does not survive hence dismissed. (A.V. NIRGUDE, J.)