1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2228 OF 2007 Godrej Industries Ltd., & Ors. .... Petitioners. vs. The State of Maharashtra & Anr. .... Respondents. Mr. R.A. Dada, Sr. Adv., i/by R. Ravindran for Petitioners. Mr. Sindha Shreedharan, AGP., for Respondent/State. CORAM : J.N. PATEL, & K.K. TATED, JJ. DATE : 29TH AUGUST, 2008. P.C. Heard the learned counsel for the parties. 2 2. Rule. Rule returnable forthwith. AGP waives service for the respondents. 2. The petitioners have filed this petition seeking a writ of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India directing the respondents, their servants and agents to forthwith withdraw and/or cancel the impugned orders (Exhibits 'B', 'D', ' E' , 'F', 'R' and 'S' annexed to the petition and for ancillary reliefs by way of interim orders. 3. It is the case of the petitioner that on 30th July, 1948 Mr. Nowroji Pirojsha transferred extensive lands at Vikhroli including the lands in dispute to Godrej & Boyce Mfg. Co. Ltd., (Petitioner No. 2 herein) and since then the 2nd petitioner has been in possession of the entire property. Subsequently, from 1st March, 1952, the Salsetee Estate Land Revenue Exemption Abolition Act, 1951 came into force which led to the Petitioner No. 2 to file a suit against the then State of Bombay (Suit No. 413 of 1953) seeking a declaration that the 2nd petitioners are the owners of the entire village 3 of Vikhroli on the terms and conditions of the Kowl (Deed of Perpetual Lease) dated 7th July, 1835 and Suplemental writing dated 30th November, 1837 as successor in title of Framji Cawasji Banaji and for a declaration that all lands in the possession of the Petitioner No. 2 in the said village of Vikhroli had been appropriated before 14th August, 1951 for the purpose of the Petitioner No. 2 company which is an industrial undertaking. It is the case of the petitioners that on 8th January, 1962 a consent decree came to be passed in Suit No. 413 of 1953 whereby it was agreed and declared that the village of Vikhroli held by Petitioner No. 2 company is an estate within the meaning of Section 2(1)(b) of the Salsette Act and that save and except lands bearing old Survey No. 15 (part) of Vikhroli admeasuring 21 gunthas and old Survey No. 16 (part) of Vikhroli admeasuring 10 gunthas totally 31 gnthas which vested with the Government, all other lands in the village of Vikhroli were appropriated or brought under culativation before 15th August, 1951 and it is the property of Petitioner No. 2 subject to the provisions of Section 3 of the Salsette Estate Act. 4. It so happened that in the year 1973, the respondent 4 State of Maharashtra filed a suit against Petitioner No. 2 being Suit No. 679 of 1973 seeking a declaration that the lands bearing New Survey Nos. 61 to 65 of Vikhroli belong to and at all material times belonged to Government of Maharashtra and an order and decree is sought againt the Petitioner No. 2 to forthwith hand over quiet and peaceful possession of the suit property or such part thereof as are yet undisposed off by Petitioner No. 2 and not acquired under the law for the time being in force and other ancillary reliefs which is being contested by the petitioners who are the defendants in the said suit and till today the said suit is pending on the original side of this Court. 5. It is the case of the petitioners that Petitioner No. 2 granted various leases of land belonging to them to the Petitioner No. 1 company which has set up their chemical complex and other industrial units on the subject land. 6. It is the case of the petitioners that after the Urban Land (Ceiling & Regulation) Act, 1976 (for short “ULC Act, 1976” came inro force in the State of Maharashtra i.e. From 17th February, 1976, 5 on 12th August, 1976 the Petitioner No. 1 company as lessee of the land filed a declaration under Section 6(1) of the ULC Act, 1976 and also filed an application for exemption under Section 20 of the said Act. During the course of the proceedings before the competent authority under the ULC Act, 1976, after the parties were heard in the matter in respect of the proposed draft statement on 19th September, 1978, Respondent No. 2 passed an order under Section 8 (4) of the ULC Act, 1976 declarating certain lands to be “vacant” and held that the same is liable for acquisition by the State of Maharashtra being surplus land held by the petitoner and issued a final statement as required under Section 9 followed by notification under Section 10(1) of the ULC Act, 1976. 7. It is the case of the petitioners that notice under Section 9 along with final statement was only served on the Petitioner No. 1 company which preferred an appeal on 1st November, 1978 impugning the order dated 19th September, 1978 passed by Respondent No. 2. 8. In the course of the proceedings, the Petitioner No.2 6 sought exemption under Section 20 of the ULC Act, 1976 . By an order dated 14th February, 1979 the respondents rejected the said application made by Petitioner No. 2 company under Section 21 of the said Act. The proposal was forwarded for providing housing for weaker sections of the society. This came to be challenged by the Petitioner No. 2 company by filing a writ petition being Writ Petiton No. 895 of 1979. By an order and judgment dated 28th June, 2004, this Court disposed of the Writ Petition No. 895 of 1979 and held as under :- “(4) In so far as undisputed lands are concerned, liberty to the petitioners to withdraw the petition with leave to take out appropriate legal proceedings including by way of writ petiton after disposal of the pending suit in respect of the disputed lands. In the meantime, all interim orders passed by this Court in the present petition in respect of the land which is the subject matter of the suit will continue till the disposal of the suit and for the period of eight weeks 7 thereafter.” 9. By virtue of the aforesaid order, the Petitiners were granted leave to take out appropriate legal proceedings relating to the subject land. After disposal of the pending suit in respect of the land where the State had disputed the holding of the petitioners. It is the case of the petitioners that by virtue of the judgment and order of this Court dated 28th June, 2004 and the pendency of the Suit No. 679 of 1973 filed by the Respondents disputing the ownership of certain land (which includes the Survey Nos. 61(p), 64(p) and 65(p) in CTS No. 51(p) in this Court, by virtue of the pending litigation the interim order dated 19th April, 1979 and the final order dated 28th June, 2004 in Writ Petiton No. 895 of 1979 would continue to operate against the respondents and, therefore, the respondents could not have proceeded to determine the holding of the petitioner company as surplus land under the ULC Act or acquire the same which would be contrary to the order and injunction of this Court. 10. It is further contended by the petitioners that in so far as the other properties particularly lands falling under survey no. 138 8 (p) (CTS No.3/32) and Survey No. 139 (CTS No. 5(p) with an area of 6897.4 sq. m. and Survey No. 36 (p) (CTS No. 2(p) with an area of 3016 sq.m. Having been shown as “not deemed as vacant” under the said Act and that the respondents have accepted this position which is evident from the order dated 5th October, 1984 under which the plan was duly approved by the Respondent No. 2. It is the case of the petitioners that they had already carried out construction on the said land after seeking due approvals of the appropriate authorities and, therefore, the Respondent No. 2 cannot be permitted to acquire the land on which quarters are constructed by petitioner no. 2 company and leased out to petitioner no. 1, as it will not fall within the purview of vacant land. 11. On the other hand, it is the case of the respondents that the order under Section 8 (4) of the ULC Act, 1976 came to be issued on 19th September, 1978 declaring the vacant land as surplus vacant land which is as under : Village S.No. CTS No. Area declared as Surplus Vacant Land. Ghatkopar 138 pt 3/32 6897.4 9 139 pt 5 pt Vikhroli 36 pt 2 pt 3016.0 61 pt 64 pt 51 pt 145526.5 65 pt According to the respondents, the surplus vacant land admeasuring 145526.5 bearing Survey Nos. 61 (pt), 64 (pt), 65 (pt) of CTS No. 51 (pt) of village Vikhroli form part of the disputed land in O.S. Suit No. 679 of 1973 and, therefore, the notification under Section 10(3) issued in respect of the said land will be withdrawn and the said land will not be acquired till the dispute is decided as the matter is sub judice. Therefore, in so far as the aforesaid land admeasuring 145526.5 sq. mts., is concerned, the parties are not at issue. 12. In respect of other land which according to the respondents have been declared as surplus land is the land which pertains to village Ghatkopar from Survey No. 138 (pt) CTS No. 3/32 and Survey No. 139 (pt), CTS No. 5 (pt) admeasuring 6897.4 sq. meters and that of Village Vikhroli from Survey No. 36 (pt) CTS No. 2 (pt) admeasuring 3016.0 sq. meters is concerned, it is the contention of the respondents that the petitioners vide their letter 10 dated 12th August, 1976 had applied to the Urban Development and Public Health Department for grant of exemption under Section 20 of the ULC Act, 1976 which was being implemented by the Government in General Administration Department of the State of Maharashtra and according to the respondents the petitioners seems to have not applied to the General Administration Department of the State for grant of exemption. Neither the petitioner has pursued the said application as alleged with the Department and, therefore, the petitioners contention is false and concocted. 13. It is the case of the respondents that after the petitioners filed the statement as required under Section 6(1) of the ULC Acct which came to be registered as C(ULC/R-XI/99 on 13th August, 1976. The Competent Authority after conducting due enquiries has passed the order under Section 8 (4) of the said Act on 19th September, 1978 and has rightly declared the subject land as surplus vacant land. It is specifically stated in their affidavit in reply filed by Mr. Shivaji Ranoji Jondhale, Additional Collector and Competent Authority (ULC) Greater Mumbai that the petitioners have not filed their application for seeking exemption before the appropriate forum 11 which was the General Administration Department. On the other hand, they have made an application dated 12th August, 1976 to the Urban Development and Public Health Department of the State of Maharashtra which was not dealing with the issue of exemption under Section 20 of the said Act. Further, they have neither pursued nor followed up proper procedure and, therefore, it cannot be considered that the application dated 12th August, 1976 filed by the petitioner for grant of exemption under Section 20 was required to be considered. 14. It is further contended that the proceedings initiated against the petitioners came to be decided by the Competent Authority after hearing the objections raised by the petitioners which led to the passing of the final and concluding order under Section 8 (4) of the ULC Act, 1976 dated 19th September, 1976 declaring the disputed land as surplus vacant land. Pursuant to the said order under Section 8 (4), final statement under Section 9 and notification under Section 10(1) of the ULC Act came to be issued on 19th September, 1978 which was not challenged by the petitioners by preferring an appeal before the appellate authority. 12 15. In reply to the contention of the petitioners that the Peetitioner No. 2 company has filed Writ Petition No. 895 of 1979 and that it also includes the land held by the Petitioner No. 1 company and that this Court has granted stay in the matter, it is submitted that the said petition came to be decided by this Court on 28th July, 2004 giving directions that the 6(1) statement should be decided excluding the disputed lands therefrom and, therefore, the interim orders in respect of the undisputed land passed by this Court stood vacated and, therefore, there is no merit in the matter as proceedings under Section 10(1) and 10(3) have been correctly initiated by the authorities. It is also clarified that no application under Section 20 or 21 of the petitioner is pending in the office of the respondents nor the petitioners have approached the the competent authority for grant of extemption even after passing of the order dated 28th June, 2004 by this Court in Writ Petition No. 895 of 1979 and, threfore, except for the disputed land covered in Suit No. 679 of 1973 which cannot be acquired, the stay stood vacated. It is the case of the respondents that the matter is pending from the year 1979. The petitioner has not taken any action to get exemption in 13 respect of the surplus undisputed land even after passing of the order dated 28th June, 2004 and, therefore, the action now intiated by the petitioner cannot be taken into consideration and, therefore, the petition deserves to be dismissed. 16. Mr. Dada, the learned Senior Advocate appearing for the petitioners poitned out to this Court that the sum total of the land in respect of which proceedings came to be initiated by the respondents is as under :- Village S.No. CTS No. Area declared as Surplus Vacant Land. Ghatkopar 138 pt 3/32 6897.4 139 pt 5 pt Vikhroli 36 pt 2 pt 3016.0 61 pt 64 pt 51 pt 145526.5 65 pt out of which the respondents themselves admit that the land bearing Survey Nos. 61 (pt), 64 (pt) and 65 (pt), CTS 51 (pt) from Vikhroli admeasuring 145526.5 is pending adjudication in this Court in Suit No. 679 of 1973 which has been filed by the State Government 14 and, therefore, this part of the land which has been included for determinating surplus vacant land has to be by necessary implication excluded from consideration which is also conceded by the respondents. The remaining land i.e., of village Ghatkopar bearing Survey No. 138 (pt) CTS No. 3/32 and 139 (pt) CTS No. 5 (pt) admeasuring 6897.4 and that of village Vikhroli Survey No. 36 (pt) CTS No. 2 (pt) admeasuring 3016.0 is concerned, the Petitioner No. 2 company had filed an application for exemption under Section 20 of the ULC Act, 1976 which came to be allowed by order dated 5th October, 1984, copy of wich is annexed to the petition. Our attention is drawn to the schedule annexed to the order in column 5 (a) of the Schedule which refers to the description of the property for which exemption is sought. There is specific mention of Survey No. 36 (pt) of Village Vikhroli and Survey No. 138 (pt) and 139 (3) of village Ghatkopar in addition to other survey numbers of which particulars are given in column 5(a) and that the total area in sq. mtrs., which came to be exempted was 5,49,134.00 sq. mts. In fact, the exemption was specifically granted for constructing staff quarters in the portion of the land admeasuring 2,57,132.00 sq. mtrs. It was specifically pointed out that even in their afidavit in reply this fact 15 has been accepted by the respondent competent authority wherein in paragraph 14 it is specifically stated :- “14. I say the exemption order dated 5th October, 1984 was issued in favour of M/s. Godrej and Boyce Mfg. Co. Ltd., in respect of lands held by the said Co. and not in favour of the Petitoner.” 17. Mr. Dada, the learned Senior Advocate appearing for the Petitioners pointed out to this Court that the respondents have overlooked the fact that the petition is filed on behalf of Petitioner No. 1 and M/s. Godrej & Boyce Mfg. Co. Ltd., Petitioner No. 2 who were the owners of the land in question and sought exemption from the State Government which came to be granted under order dated 5th October, 1985 and, therefore, we fail to understand the stand taken by the respondents in this regard. It is, therefore, submitted that in view of the fact that part of the land which has been declared as surplus vacant land under the impugned order i.e. Survey 16 nos. 138 (pt) and 139 (pt) of Village Ghatkopar admeasuring 6897.4 sq. mtrs and survey no. 36 (pt) of Village Vikhroli admeasuring 3016.0 sq. meters being exempted and the remaining land bearing survey nos. 61 (pt), 64 (pt) and 65 (pt) of Village Vikhroli admeasuring 145526.5 sq. mtrs., being the subject matter of a civil suit filed by the State Government, none of the land can be held to be as surplus vacant land under the provisons of the ULC Act, 1976 and, therefore, the impugned orders beinig Exhibits ' B', 'D', 'E', 'F', 'R' and 'S' deserve to be quashed and set aside. 18. The learned AGP., appearing on behalf of the Respondents submitted that though certain errors have crept up in the return filed by the respondents in the form of affidavit of Mr. Jondhale, Additional Collector and Competent Authority (ULC), Mumbai, the fact remains that the proceedings initiated against the petitioner and the subsequent orders passed cannot be faulted. 19. It is fairly conceded that in so far as the land at Vikhroli is concerned, which is the subject matter of the civil lsuit filed by 17 the State against the Petitioners who are the defendants in the suit i.e. O.S. Suit No. 679 of 1973 and as the title of the suit land in question is in dispute, the State preserves its right to take appropriate decision after the suit is finally heard and disposed of and, therefore, so far as land bearing Survey nos. 61 (pt), 64 (pt) and 65 (pt) of Village Vikhroli admeasuring 145526.5 sq. mtrs., is concerned, that will have to be excluded from the impugned orders as it cannot be considered for the purpose of determining the holding of the petitioners for the very reason that the State itself has challenged their title over the said land. 20. The learned AGP., was fair enough to accede to the contention of the learned counsel appearing for the petitioners that the remaining lands i.e. Survey nos. 138 (pt) and 139 (pt) of Village Ghatkopar admeasuring 6897.4 sq. mtrs and survey no. 36 (pt) of Village Vikhroli admeasuring 3016.0 sq. meters, the order dated 5th October, 1984 passed by the State Government itself grants exemption in favour of M/s. M/s. Godrej & Boyce Mfg. Co. Ltd., under Section 20 of the ULC Act in respect of the land admeasuring 2,57,132 sq. meters of Village Ghatkopar for 18 consruction of staff quarters and as the Petitioner No. 2 is the party in whose favour such an exemption is granted that also deserves to be excluded. 21. In view of the aforesaid admitted position, this Court finds that the decision of the respondents in declaring the holding of the petitioners particularly petitioner no. 2 who is the original owner of the said land which is surplus vacant land declared under various orders which are subject matter of the petition cannot be sustained in the eyes of law for the simple reason that the land which has been declared as surplus vacant land under the ULC Act, 1976 is also the subject matter of a dispute between the parties in a suit for declaration of title by the State Government i.e. Suit No. 679 of 1973. In so far as the remaining land of Village Ghatkopar i.e. nos. 138 (pt) and 139 (pt) admeasuring 6897.4 sq. mtrs., is concerned, stands exempted under order dated 5th October, 1984 passed by the Housing and Special Assistance Department, Mantralaya, Though the respondents in their return have not referred to the same and have only restricted their reply to the land bearing Survey No. 36 (pt) of Vikhroli, which, 19 according to them, was exempted for construction of staff quarters. 22. Therefore, in so far as the land which was declared surplus the petitioners were able to obtain exemption by filing an application under Section 20 of the ULC Act, 1976 by the order dated 5th October, 1984 which cannot be disputed as there is nothing on record to show that subsequently this order came to be withdrawn nor it is the case of the respondents that no such order was passed in favour of the Petitioner No. 2. The stand taken by the State cannot be accepted as it was not in favour of the Petitioner No. 1 company, the Petitioner No. 2 company cannot enjoy the benefits of such exemption and, therefore, we quash and set aside the impugned orders. Rule is made absolute. No order as to costs. (J.N. PATEL, J.) (K.K. TATED, J.)