Case: Mafatlal Industries Limited &amp; Another Vs. State of Maharashtra Through Its Ministries Revenue &amp; Forest &amp; Urban Development &amp; Others

3. The prayers in relation thereto, as amended, read asorder and direct Respondent Nos.2 and 5 to act in accordance with the Notification dated 10th February 2004 (Exhibit G hereto); act in accordance with the statements made before this Honble Court in PIL Writ Petition No.660 of 2004; and in view thereof, grant the Petitioners noncash compensation (in terms of Development Rights Certificate) in accordance with the Petitioners entitlement under the Notification dated 10th February 2004 and the Development Control Regulations of Greater Mumbai (as amended);c (i) to (iv)v) stay the effect, implementation and operation of the impugned Panchnama and the impugned receipt dated 7th January 2017/7th January, 2016 (being Exhibits EE and JJ hereto);(vi) restrain and prohibit Respondent Nos.1 to 3 and Respondent No.5, their respective servants, officers and/or agents from in any manner (directly and/or indirectly) acting upon in furtherance and/or otherwise taking any action upon and in relation to the impugned Panchnama and the impugned receipt dated 7th January 2017/7th January 2016 (being Exhibits EE and JJ hereto);(vii) restrain and prohibit Respondent Nos.1 to 3 and Respondent No.5 from in any manner (directly or indirectly) disturbing and/or interfering with the Petitioners possession of the MCGM land (Petition: Exhibit F);AUGUST 16,For appreciating the issue in relation to these prayers, we would have to refer to certain background facts.5. The list of dates, as tendered by Mr. Khambata, learned Senior Counsel appearing for the petitioners, refers to two Indentures of Lease under which the State granted the lease of the lands.6. Under the Indentures of Lease dated, page 85) and, page 98), the State Government granted lease of lands aggregating to 70,361.20 square metres to petitioner No.1/Mafatlals predecessors for an initial period of 99 years with an entitlement to a new lease for a further term of 99 years with the same covenant and provision (including the covenant for renewal). These are, therefore, perpetual leases.7. In the year 1967, under the then Development Plan, 58,197.97 square metres of land was reserved for the purpose of extension to Veermata Jijabai Bhosale UdyanZoo (VJB Udyan for short).8. By its Notification dated(ExhibitG, page 120) (2004 Notification for short), the Urban Development Department of the State of Maharashtra inter alia released 50% of the land from reservation and making it available to Mafatlal for development under D.C. Regulation 58. This land admeasures 30,910.15 square metres and is the subject landpage 117). As regards the balance land, it continued under reservation (for extension of the Zoo) and under the 2004 Notification Mafatlal is to surrender the same to the Municipal Corporation of Greater Mumbai (MCGM for short). This land is the MCGM land (ExhibitF, page 118).9. In March, 2004, Janhit Manchothers filed PIL Writ Petition No.660 of 2004 inter alia challenging the 2004 Notification and the release of the subject land from reservation and the same becoming available to Mafatlal for development.10. OnMafatlal made an application under Section 302 of the Brihanmumbai Municipal Corporation Act, 1888 (BMC Act for short) and under Section 44 of Maharashtra Regional and Town Planning Act, 1966 (MRTP Act for short) to the MCGM seeking permission for carrying out development of the property bearing C.S. No.593 of Mazgaon Division by proposing subdivision/ amalgamation of property and layout of Building.11. Thereafter, the petitioners also submitted an application for surrender of the reserved land for grant of Development Rights Certificate (DRC) under Regulation 34 of the Development Control Regulations For Greater Mumbai, 1991 (DCR, 1991 for short) r/w Appendix VII.12. Onthe Principal Secretary, Urban Development Department, Government of Maharashtra filed an affidavitpage 124) in Writ Petition No.660 of 2004.2.The State Government, particularly the Urban Development Department, Textile Department and the Revenue Department have duly considered matters relating to the said Mazgaon lands in all its aspects to strike a balance between the need to continue the reservation and the practical need of the same and for that purpose had interdepartment meetings, meetings with Respondent No.2 Corporation, meetings with the third Respondent Company, the RMMS, the representative Union of workers and meetings with the Honble Chief Minister before the final decision was taken in February, 2004 to partially dereserve the said Mazgaon lands on the special stipulated conditions.3.I say that the impression sought to be created by the petition was that the State Government had literally granted largesse to the Respondent No.3 Company and that the Mill Owners were profiteering at the cost of public interest is misfounded. I say that the lands were lawfully leased to the 3 rd Respondent Company whose rights could not be brushed away as of no consequence. Further, the Petitioners have submitted that the government should acquire the land for a public purpose and Respondent No.3 be paid compensation taking into account the factors in Paragraph27 of the petition.25.The Corporation which would have acquired the said Mazgaon land, was in no financial condition to acquire the same. The State Government, with its various priorities, also has no financial resources to acquire the said land. The Respondent No.3 Company is in use and occupation of the said Mazgaon land under a subsisting lease which does not restrict the uses to which the same can be put to with provisions for renewal of the said lease on the same terms, (including the provision for renewal), with a right to assign parts of the said land with only a notice to the Lessor as provided therein, etc.26. I say that it was impossible to expect the Respondent No.3 Company to give up its right under the lease deeds. There was likelihood of protracted disputes and litigation, thereby resulting in the workers dues etc. being unsettled and a stalemate, which would not benefit anybody.(emphasis supplied)13. Onone Chandrakant Krishna Watve, Executive Engineer, Municipal Corporation of Greater Mumbai filed an affidavit inreply in PIL Writ Petition No.660 of 2004. Paragraphs 4 and 5 of this affidavit belies the MCGMs present stand.page 340 (123) The same are quoted:4(e)Subsequently, BIFR has approved the revival scheme on 30.10.2002 with total deletion of reservation of the reservation of extension to Veer Jijamata Udyan. The said issue of deletion is examined by the Govt. thereafter and in the public interest issued notification n/n200/UD11 on 10.2.2004, in exercise of the power vested under section 37(2) of the said Act, and retained the reservation of extension to Veer Jijamata Udyan to the extent of 50% of the land held by the said company. The said land is required to be handed over on noncash compensation basis as agreed by the said company.The land on which the reservation ofIn view of the above, I submit that present petition be disposed off accordingly and be dismissed with cost.(Emphasis supplied)14. In October, 2010, H. S. ThakkerAssociates, Architects, for Mafatlal addressed a letter to the Executive Engineer (D.P.) City, MCGM in response to his letter datedIt was stated that the lessees are entitled for grant of DRC as per the provisions of DCR No.34, Appendix IV. It was also stated that as per the Notification datedthe land reserved for extension to Jijamata Udyan is to be handed over to the MCGM at the earliest. In view of the above, a request was made to forward the papers to the Legal Department for title verification and also issue letter to the Superintendent of Land Records (SLR) for joint measurement at the earliest.15. OnMafatlal addressed a letter to the Executive Engineer, Building Proposals (City), MCGM confirming that they were willing to handover 50% of the balance land after deduction of road set back area out of plot bearing C.S. No.593 pursuant to the 2004 Notification. The petitioner/Mafatlal requested the Executive Engineer to ensure that the concerned authorities of the MCGM expedite the procedure for finalisation of the road setback demarcation to enable determination of the exact area to be handed over to the MCGM. Mafatlal also confirmed that they would claim TDR as per the said Notification and relevant DC Regulations for the land to be handed over.16. Onthe Development Agreement (DA) was executed between Mafatlal and Glider.17. By its internal Memos dated, page 228) and, page 252), the State directed the Collector to grant renewal of lease and development permission in respect of the subject land, subject to Mafatlal making payment of ad hoc development premium @ 10% of the ready reckoner value of the subject land.18. On, page 275), Mafatlal addressed a letter to the Collector, Mumbai City recording compliance of both the conditions stipulated by the Collector in the internal Memo dated, page 288), pursuant to the State Governments Memorandum datedthe Collector passed an order granting permission to Mafatlal for development of the subject land and also approved renewal of Mafatlals leases for a period of 30 years. The order records the fact that Mafatlal had made a payment of Rs. 9,77,72,606/

Reasoning:
A perusal of this Notification leaves us in no manner of doubt that land admeasuring 58,197.97 square metres out of City Survey No.593 of Mazgaon Division, styled as the said land, may have been termed in this Notification to be owned by M/s. Mafatlal Industriesland is reserved for extension of VJB Udyan as per the proposals of the Development Plan of E Ward sanctioned by the Government onOn that land is located a cotton textile mill unit. This reservation continued after the term of the Development Plan of 1967 was over. In the earlier plan also, the land was reserved for extension to VJB Udyan, and in the revised Development Plan published under Section 26 of the MRTP Act and submitted to Government under Section 30 of the MRTP Act by the MCGM, the reservation was deleted from that land and it was placed in retention activity. However, while according sanction by the State Government to the revised Development Plan ofthe said land was kept reserved for the said purpose. The cotton textile mill was a running industry upto June, 2000, after which, taking into consideration the financial constraints faced by the company and the complete erosion of itsleading to closure of its activities, the unit of the said company was declared sick by the Board of Industrial and Financial Reconstruction (BIFR for short) under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985.70. What is relevant and material for our purpose is that it is this textile unit/company which approached the Government with a proposal to commercially exploit its lands at Lower Parel and Mazgaon so as to generate funds and from these funds generated pursuant to the development of these lands, to partially revive the said mill and to pay its various dues. The company, therefore, requested that the reservation be deleted. It said that it intends to carry out development in accordance with Regulation 58 of the DCR, 1991, as modified in the year 2001.71. The entire issue was examined with reference to the possible development of the said land as per the proposals of the Development Plan visavis the revival scheme of the said mill as envisaged by the said company. The Government was of the view that after the revival scheme is approved by the BIFR, that will restore the viability of the said mill and also enable it to pay various dues, including labour dues. That would also help to some extent to protect the job of workers of the said mill. However, for this purpose it is necessary that the said land is released from the reservation and placed in retention activity.72. In these circumstances, after considering all the facts and related issues, the Government, in larger public interest, found it expedient to take necessary steps to promote the implementation of the revival package of the said company and for that purpose the Government found it expedient to delete the said reservation conditionally and placed the deleted land as retention activity after following the procedure laid down under Section 37 of the MRTP Act. In the Notification itself it is clarified that the deletion of the reservation would be conditional. It is necessary that a condition be imposed on the petitioners that after deletion, the land shall be developed scrupulously in accordance with the provisions contained in the modified Regulation 58 of the DCR, 1991, as also as per the package of measures, as may be approved by the BIFR in accordance with law. That is why the Government in exercise of the powers vested under Section 37(1) of the MRTP Act, vide order of even number datedhad directed the MCGM to delete the said reservation from the said land and designated the said land so deleted as retention activity. The MCGM was therefore directed to comply with the requirements of Section 37 of the MRTP Act but it failed to publish the requisite notice within the stipulated period of 60 days. That is how the Government of Maharashtra relied upon its powers under Section 37(1A) of the MRTP Act and issued the notice datedregarding proposed modification, and thereby invited suggestions/objections from the general public within a period of one month from the date of publication of the notice in the Official Gazette and it appointed the Deputy Director of Town Planning, Greater Mumbai, as officer, to submit his report to the Government. That would be regarding the suggestions/objections that may be received after the expiry of the period stipulated in its notice. Thus, this notice was published in the Government Gazette onand prior thereto in two newspapers.A careful perusal of this Notification leaves us in no manner of doubt that total deletion of the reservation was not accepted. There was already a Zoo in existence and its extension was required in public interest. That was also necessary for carrying forward the purpose of the Development Plan. It is in these circumstances that the Government of Maharashtra decided to retain the reservation by extension to VJB Udyan but restricted it to the extent of 50% of the land. It decided to release the remaining land from this reservation so as to enable the company to develop the property in order to satisfy the dues of the workers and other dues. This Notification itself records the fact that the company has agreed to handover the reserved land on noncash compensation basis.75. The Government, therefore, exercised its powers under Section 37(2) of the MRTP Act and sanctioned the modification, subject to conditions. If one reads the operative part of this Notification and under the heading/title MODIFICATION, it is evident that the conditional modification cannot be read in the manner suggested by Mr. Khambata. If the conditions are perused in totality or read together and harmoniously, it is evident that had it not been for this partial deletion by the Government, the reservation on the said land would have continued. Thus, the entire land would then have continued under reservation for the public purpose of extension of VJB Udyan. It was then not possible to use the land or develop it for any other purpose, save and except the notified one. If the total deletion of the reservation was sought by the petitioners, but that was not agreed upon and even the partial deletion is conditional, then, the petitioners cannot pick one of the terms and conditions and read it in isolation or to their benefit. If this modification to the Development Plan had not been granted and in the form issued by the State Government, then, it was not possible for the petitioners to develop the land under Regulation 58 of the DCR, 1991 and to the extent of 50% as per this Notification. That it can be developed under this Regulation by styling the petitioners as owners is only to enable them to get the benefit or advantage of the DC Regulation 58. That is specifically inserted in the DC Regulations to enable obtaining of FSI which is attached to the lands in use and possession of textile units/mills in Greater Mumbai. It is only after partial release from the reservation in terms of the Development Plan, that the petitioners could have developed the land to the extent of 50% and as permitted above, and utilised the funds generated from the development of land so released from reservation primarily for adjustment of dues of workers and also for payment of its outstanding dues of financial institutions, as stipulated by the BIFR. Thus, to implement and execute so also enforce the BIFR revival scheme, that this modification in the Development Plan has been made. The condition is to recommence the spinning activity of 10,000 spindles, as stipulated in the BIFR scheme.76. The basic premise on which Mr. Khambatas arguments are canvassed is fallacious and incorrect. The subject Notification is not the one acquiring the private property for public purpose under the sovereign power founded on the right of eminent domain vesting in the State. The subject Notification, as held above, is for effecting a major modification in the sanctioned Development Plan by exercising a statutory power conferred vide Section 37 of the MRTP Act, 1966. That modification is sanctioned conditionally. This is not to be confused with a power to acquire some interest in the land. The land to the extent released is the consideration based on which the rest of the land already under lease with the petitioners can be developed or redeveloped to the fullest by reaping the fruits of D.C. Regulation 58. That allows a land leased for industrial purpose to a textile mill to be redeveloped in terms thereof so that its potential in the market can be exploited to the maximum. It was not possible unless the reservation for public purpose is deleted. For deletion of that alone, partially, the subject Notification is issued. The ownership of the land admittedly vests in the State. The State is not required to acquire its own land. It cannot take recourse to the power of acquisition under the Land Acquisition Act, 1894 or the law now prevailing enabling acquisition of a private land or any interestis not the situation before us at all. The condition based on which the balance of 50% of the land released from reservation could have been developed in terms of the BIFR scheme is that the rest of it continues under reservation for extension of VJB Udyan and to that extent the land, as demarcated, would have to be handed over free of encumbrances on noncash compensation terms to the MCGM, then, it is evident that there is no question of any compensation to be awarded either way. Meaning thereby, either in cash or noncash basis. There is nothing emerging from this Notification which the petitioners can seek, much less as of right from the MCGM. The whole petition to this extent is misconceived. It is as if the petitioners claim to be absolute owners of the land and that they are being deprived of its use, enjoyment and benefits because of the surrender thereof in part for use by the MCGM that they should be compensated, is the foundation of the petitioners case. That foundation itself has no legal support. The petitioners are neither absolute owners nor they have such right as they can seek to enforce against the MCGM. They are not deprived of their property or kept out of its enjoyment by a procedure unknown to law. This is, therefore, not a case where a person is being deprived of his property, save by authority of law. All those cases in which a person is deprived of his property, save by authority of law, are clear. In those cases, the State Government or the Planning Authority by a mere designation or reservation of lands for a public purpose, but without acquiring them in accordance with law, deprive the owners thereof of their rights, that this principle would come into play. This is enshrined in Article 300A of the Constitution of India. In that event, even the guarantee of equality flowing from Article 14 of the Constitution of India is breached and violated. This is not a case of that nature. This is a case where the requirement of the land for a predesignated public purpose is fulfilled by balancing the rights and equities of the petitioners as lessees of Government land or public properties. Pertinently, the petitioners are not challenging the power of the State Government to make a conditional modification in the Development Plan or proposal. The power flowing from the substantive provisions of the MRTP Act can be exercised unconditionally or by imposing terms and conditions consistent with the object and purpose of the MRTP Act. Even the conditions of the Notifications are not challenged. It is but a reading and construction thereof to their advantage which is attempted by the petitioners in this petition. Once we find that such an attempt cannot succeed, then, no relief can be granted to the petitioners, particularly in terms of the prayers set out hereinabove.77. None of the decisions cited by Mr. Khambata would assist the petitioners.78. In those decisions, the controversy was entirely different. The ambit and scope of powers conferred by Section 37 of the MRTP Act was in issue in Pune Municipal Corporation V/s. Promoters and Builders Association (supra). The principle of estoppel and particularly promissory estoppel was pressed into service but even that attempt was not successful because the principles of promissory estoppel cannot be invoked against statutes. The backdrop in which all these issues arose for determination and consideration are totally different and distinct. The question was whether the State Government can make any changes on its own in the modifications submitted by the Planning Authority or not. It is answering that issue in favour of the Pune Municipal Corporation and rejecting all the arguments to the contrary that this Judgment was rendered. Far from assisting the petitioners before us, some of the observations in this Judgment would militate against the contentions of Mr.observations relied upon by Mr. Khambata cannot be read in isolation but must be read in the backdrop of this essential question or controversy. We do not see how then can the petitioners claim any relief based on this Judgment. This Judgment is, therefore, entirely distinguishable.81. We do not see how the other Judgments, and particularly that rendered in the case of Pepsico India Holdings Private Limited (supra), would assist the petitioners. The Pepsicos was a case where the doctrine of promissory estoppel was invoked so as to rely upon a concession/exemption/incentive/rebate in sales tax. The argument was that Pepsico has taken effective steps for acquiring or placing firm orders for the purchase of the necessary plant and machinery under the Notification datedissued under the industrial policy of the State of Kerala. Therefore, it was entitled to the relief in terms of the Notification, namely, exemption from sales tax for a certain period. Its entitlement was thus upheld and the State was prevented from denying the benefit of this exemption Notification to it. We have no such case before us.82. Equally, the other Judgment in the case of Pune Municipal Corporation V/s. Kausarbag Cooperative Housing Society Limited (supra) iscase is also distinguishable.83. We do not think that the other Judgments in the compilation are of any assistance to the petitioners.