Public Interest Litigation (Lodging) No. 105 of 2012. Case: 1. Oshiwara Lokhandwala Citizens Association, 2. Aysha Imtiaz Patel, 3. Rakesh Coelho, 4. Lalu Keswani Vs 1. Maharashtra Housing and Area Development Board, 2. Brihan Mumbai Municipal Corporation, 3. Ward Officer, K West Ward, Municipal Corporation of Greater Mumbai, 4. State of Maharashtra, through the Secretary, Urban Development Department, 5. Janata Education Society, Mumbai. High Court of Bombay (India)
| Case Number | Public Interest Litigation (Lodging) No. 105 of 2012 |
| Counsel | For Appellant: Mr. Mihir Desai, Adv. and For Respondents: Dr. Milind Sathe, Senior Advocate with Ms. Madhubala Kajle, Mr. A. Y. Sakhare, Senior Advocate with Ms. Sharmila Modle and Yamuna Parekh, Mr. G.W. Mattos, AGP, Mr. Ravi Kadam, Senior Advocate with Sharan Jagtiani and Co. |
| Judges | Mohit S. Shah, CJ And Anoop V. Mohta, J. |
| Issue | Maharashtra Regional Town Planning Act - Section 154; Societies Registration Act, 1860; Bombay Public Trusts Act, 1950; The Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981 - Rules 4, 5; Constitution of India - Article 14 |
| Judgement Date | March 13, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
Anoop V. Mohta, J.
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Heard finally by consent of the parties.
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The residents of Oshiwara and Lokhandwala area of Mumbai, the Petitioners, have filed this Public Interest Litigation on 13/08/2012 basically against respondent 5, a registered Janata Education Society/Trust ( for short, "the Trust") and prayed as under:-
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For a Writ of Certiorari or a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the Lease Deed in respect of Plot No.A-23 admeasuring 2160 sq. metres in CTS No.1 Part along with an adjacent play ground admeasuring 3850 sq. meters in DP-6 admeasuring 3650 square meters at Oshiwara, Andheri (West), Mumbai dated 28.8.2008, anneed at Exhibit Q, IOD dated 1.2.2012 annexed at Exhibit Y and Commencement Certificate dated 27.4.2012 annexed at Exhibit Z to this Petition;
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For a writ of Mandamus or a writ, order or direction in the nature of Mandamus directing the Respondent Authorities
(I) to take back possession of the Plot No.A-23 admeasuring 2160 sq.metres in CTS No. 1 Part along with an adjacent play ground admeasuring 3850 sq. meters in DP-6 at Oshiwara, Andheri (West), Mumbai from Respondent No.5;
(II) allow the residents of the area full and complete access at all times to the playground admeasuring 3850 sq. meters in DP-6 at Oshiwara, Andheri (West), Mumbai;
(III) for costs of this Petition;
(IV) for such other and further reliefs as the nature and circumstances of the case may require.
They have also prayed for connected interim reliefs.
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The basic facts, as per the Petitioners, are as under: This Petition is concerned with two plots. Plot bearing No. A-23 admeasuring 2160 sq. metres in CTS No. 1 Part, along with an adjacent play ground admeasuring 3850 sq. meters in DP-6. The plot admeasuring 2160 sq. metres is reserved in the Development Plan for a municipal primary school while the adjacent plot of 3850 sq. meters is reserved for a common play ground.
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The plots belonged to Maharashtra Housing and Area Development Authority (MHADA). The municipal head office wrote to the Chief Engineer on 6 April, 2000 that the municipal corporation was ready to grant TDR benefits to MHADA in lieu of handing over the plot reserved for play ground and municipal primary school.
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The residents approached MHADA and objected for private negotiation in respect of these plots, with the Trust/School. However, the residents have subsequently learnt that on or about 1.1.2002 a decision was taken by the State Government directing MHADA to allot both these plots to the Trust for starting an international school. On 21.12.2002 a letter of allotment was issued by MAHADA to the Trust in respect of both these plots.
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In September, 2008, the land earmarked for play ground and school (i.e. both these plots) came to be covered with tin sheets. The residents addressed a legal notice to the concerned authorities and to the Trust. As alleged, none of these addressees responded.
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On 09.07.2010, MHADA in reply to a query of a resident stated that both the plots, were leased to the Trust for 30 years in August 2008. No further actions initiated by the objectors. The Trust has been proceeding further to utilize the plots. In the letter dated 15.12.2010 from the Office of the Chief Fire Officer it is stated that part of the ground and first floor will be used for commercial purposes with independent staircase and upper floors will be used for school purposes. Mr. Kadam, learned senior counsel for respondent No.5, under instructions, states that notwithstanding the statement in the permission dated 15 December 2010 issued by the Deputy Chief Fire Officer (W.S.), no part of the building will be used for commercial purpose. Mr. Kadam adds that on the plot in question, respondent No.5 will put up construction only for a Municipal school with independent access and the school to be run by respondent No.5.
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On 12.04.2012 some of the residents submitted an application mentioning about "the arbitrary and unjustified action" of MHADA of allotting the plot to the Trust with a request to cancel the allotment. In the meantime, on 1.2.2012 the IOD and on 27.4.2012 the CC were issued. On 27 April, 2012 and 22 May, 2012, the petitioners protested and objected to the restrictions put on use of the play ground by the children. On 7.7.2012 the petitioners raised their objection again. On 22.10.2012 BMC addressed a letter to the Trust intimating that no permission was granted for construction on playground.
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Respondent No.1 has filed affidavit dated 1 January 2013 and resisted the averments and prayer so made by the petitioners. Respondents 2 and 3 by reply dated 31 October 2012 have also opposed the petition. The Trust has filed detailed affidavit dated 20 October 2012 with compilation of documents to demonstrate that the allotment/lease of the school plot was legal and valid and so also of the play ground. Various other contentions raised to dismiss the petition including on the ground of delay and latches and suppression of facts.
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The Trust having an object to promote education is registered under the Societies Registration Act, 1860 and also under the Bombay Public Trusts Act, 1950. A school established by them in the year 1972 now has more than 500 students in Bandra (East), Mumbai. Respondent No.1-MHADA by letter dated 8 April 1975 leased out to respondent No.5 3000 sq. yards at Khernagar, Bandra (Bandra plot) for the purposes of secondary school subject to terms and conditions as per then Government policy. An Indenture of Lease dated 7 November 1979 was registered accordingly. The adjacent land, though it was initially offered to the Trust (4400 sq. meters) but could not be taken as need was limited in the year 1972, was allotted to one Bombay Suburban Arts and Crafts Society by respondent No.4. A writ petition was filed therefore by this respondent and challenged the said allotment as they were in need of the adjacent plot to expand their school and as there was no play ground for the children and as their application for the same was pending for long. The dispute went on for long. The Trust therefore, made various representations to the various authorities. The request all the time was also for the adjacent plot in question. Ultimately, respondent No.1 vide its letter dated 20 March 2002 allotted the land to the Trust on terms and conditions as per Regulation 16 of the MHADA (disposal of land) Regulation, 1982. By another letter dated 21 December 2002 more details were asked for and the same were provided as the play ground/plot attached to the school. The special terms and conditions have been added. The Trust has obtained NOC from other concerned respondentsauthorities as the...
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