Steel Plant Private Limited v. The Municipal Corporation of Greater Mumbai

2. The petitioners in Writ Petition No. 3350 of 2022 have prayed for writ of certiorari for quashing and setting aside the impugned notice dated 28th February, 2022 issued by the respondent no.2 in respect of the property of the petitioners issued under section 299 of the Mumbai Municipal Corporation Act, 1888 (for short the MMC Act) intending to take possession of the land bearing CTS No. 345/60, Village Marol, Mumbai – 400 059 lying within the proposed regular line of 13.40M wide Gaodevi Road, Village Marol, Andheri (East) of the public street as prescribed and sanctioned by the Commissioner under section 297 (1)(b) of the said MMC Act together with its enclosing wall, hedge fencing, otla or other structure external to a building or any portion of a platform, verandah, step or other such structure which may be found upon the said land.

3. The petitioners have also prayed for writ of certiorari for quashing and setting aside the prescription and sanction of the proposed regular line of the Gaodevi Road between points D to E as prescribed by the Commissioner under section 297 (1)(b) of the MMC KVM Act as shown on the plan bearing no. E.E.T. & C/WS/RL/219 dated 11th May, 2020. The petitioners have prayed for writ of mandamus directing the respondent no.2 to set aside and cancel the sanction of the proposed regular line of 13.40 M Gaodevi Road between points D to E as prescribed by the Commissioner under section 297 (1)(b) of the said MMC Act and to grant inspection of the plan referred to in the impugned notice dated 28th February, 2022.

4. The petitioners in Writ Petition No. 3351 of 2022 have also prayed for similar reliefs. Some of the relevant facts for the purpose of deciding these two petitions are as under:-

5. The petitioners are the owners of the land bearing CTS No.345/60 of the Revenue Village Marol, at Makwana Road, Marol, Andheri (East), Mumbai – 400 059 (hereinafter referred to as the ‘writ property’). It is the case of the petitioners that the said property is vacant and is in physical possession of the petitioners.

6. As per the Development Plan of the City of Mumbai, 2034, the said property is affected by the reservation of a 13.40 M wide proposed KVM D.P.Road. The said proposed D.P.Road has not been surrendered/handed over by the petitioners to the respondent Corporation till date.

7. On 7th June, 2022, the Director of the petitioner no.1 was served with the notice dated 28th February, 2022 issued by the respondent no.2. In the said notice, it was alleged that the writ property lies within the regular line of 13.40 M wide Gaodevi Road of the ‘Public Street’ as prescribed by the Commissioner under section 297(1)(b) of the MMC Act. The respondent nos. 2 and 3 intended to take possession of the said property within seven days from the date of service of the impugned notice. The said notice was served upon the petitioners with a plan enclosed therein showing the said property affected by the notice hatched in red colour. The respondent no.2 offered the petitioners the inspection of the plan of the said land.

8. On 9th June, 2022, the petitioners sent an interim reply and denied the contents of the impugned notice in toto. The petitioners requested the respondent nos. 2 and 3 to grant inspection of the plan as offered in the impugned notice and to provide coloured photocopies KVM thereof and also the certified copy of the C.R.No.512 dated 4th March,

2021. The petitioners called upon the respondent nos. 2 and 3 not to act upon the said impugned notice or to take steps in pursuance thereof until such inspection and certified copies are granted. The respondent nos. 2 and 3 neither offered inspection of the plan of the land referred to in the impugned notice nor furnished the photocopies of the said plan and certified copies of C.R.No.512 dated 4th March, 2021. The petitioners thereafter applied and obtained certain copies of plans, reports etc. from the respondents under the provisions of Right to Information Act, 2005.

9. Dr.Birendra Saraf, learned senior counsel for the petitioners invited our attention to sections 291, 297, 299 and the definition of the public street defined under section 2(x) of the said MMC Act. It is submitted by the learned senior counsel that the affected land out of the said property owned by the petitioners is situated from points D to E. The said plan clearly evinces that there is no existing road from points D to E and the existing road stops at Point D. There is also no public street between points D to E as per the definition of ‘public street’ under section 2(x) of the said MMC Act. The land between ‘D to E’ KVM vest completely in the hands of the petitioners and not with the Municipal Corporation. It is neither levelled, paved, metalled, channelled, sewered, repaired nor maintained by the Municipal Corporation and has no public access.

10. It is submitted that the land between D to E does not fall within the definition of a ‘public street’ under section 2(x) of the MMC Act. The plan relied upon by the Corporation does not show that the land between D to E is a public street. It is submitted that though as per the plan relied upon by the respondents and the impugned notice, a regular line has been proposed from D to E under section 297(1)(b) of the MMC Act, the said provisions however are not applicable in the present facts.

11. It is submitted that the said provision of section 297(1)(b) can only be initiated to substitute ‘any line so prescribed or for any part thereof’. He submits that an ‘existing prescribed line’ is a precondition for applying section 297(1)(b) which pre-condition is neither met nor complied with by the Corporation in this case. Learned senior counsel placed reliance on the remark of the Assistant Engineer, KVM Building Proposal (Survey) and submitted submit that even the said remark clearly recorded that ‘with reference to above, this is to inform you that there is no sanctioned or proposed R.L. of this department for the road portion marked A-B-C-D-E’.

12. It is submitted that the circular dated 5th April, 2019 issued by the respondent no.1 also clearly indicates that the new public streets cannot be fixed or prescribed by the respondent no.1 under section 297 of the MMC Act. It is submitted that since section 297(1)(b) is not applicable to the land between the Point ‘D to E’, even on the basis of circular dated 5th April, 2019, the impugned notice itself is without jurisdiction and deserves to be quashed and set aside on that ground itself.

13. The report providing the remarks of the Assistant Engineer, Building Proposal (Survey) clearly records that there is no sanctioned or proposed regular line of this department for the road under reference. Further as per D.P. 2034, the stretch marked A-B is shown as existing road to be widened to 13.40 mtrs width and stretch B-C-D- E is shown as 13.40 mtrs proposed D.P. road. It is submitted that there KVM are various fundamental errors and mis-statements in the said report at page C/35. The said report does not bear out any remarks of Assistant Engineer (Maint). K/East Ward.

14. Mr.Godbole, learned counsel for the Municipal Corporation on the other hand submits that section 291 can be invoked by the Commissioner. He submits that it is not even necessary to follow section 291 and the Commissioner can directly invoke section 297. He submits that the Corporation is willing to fix compensation under section 301 of the MMC Act and the petitioner would have a right to claim enhancement if he so desires. He further submitted that the Municipal Corporation is willing to consider grant of 2 FSI to the petitioners in lieu of the said acquisition. The Municipal Corporation is not willing to withdraw the said notice under section 299 of the MMC Act. He lastly submits that if this petition is allowed by this Court, the right of the Municipal Corporation to follow the requisite procedure under the provisions of the MMC Act should be kept open.

15. Learned senior counsel for the petitioners in rejoinder, submits that section 297 cannot be applied in the present circumstances where KVM there is no Public street. He submits that, without prejudice to the rights and contentions of the petitioners, the Municipal Corporation has not offered any compensation; and that compensation under the provisions of the MRTP Act would be far greater amount than the compensation that would be offered by the Municipal Corporation under section 301 of the MMC Act.