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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by ASHISH
SAHEBRAO MHASKE
Date: 2024.06.20 17:01:50
+0530
ASHISH SAHEBRAO
MHASKE
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINATING SUMMONS NO.15 OF 2019
Vithalnagar Co-operative Housing .. Plaintiff
Society Ltd.
Versus
Municipal Corporation of Greater .. Defendants
Mumbai & Ors.
…
Mr.F.E. Devitre, Senior Advocate with Mr. Kunal Dwarkadas
i/b Dastur Kalambi & Associates for the Plaintiff.
Mr.J.P. Sen, Senior Advocate a/w. Mr. Abhishek Khare a/w. Mr.
Rohan Sathey a/w Ms. Sailee Dixit and Ms. Sheetal Metakari
i/b Mr. Sunil Sonawane for BMC/Defendant No.1 & 2.
Mr. P.G. Lad a/w Ms. Sayali Apte and Ms. Shreya Shah, for
Defendant no.3 (MHADA).
Mr.Nishant Thakkar a/w Mr. Bhavesh Bhatia i/b. Mint &
Confreres for Defendant No.7.
Mr. Aditya A. Joshi i/b Ms. Ketki Gadkari and Purav Damania
for Defendant No.17.
Mr. Surendra Kumar Arvikar, Exe. Eng. (DP) present.
Mr. Mitkari, Asst. Eng. (DP) present.
Mr. Daniel Kamble, officer on Special duty, BMC officer
present.
CORAM : BHARATI DANGRE, J.
th
RESERVED ON : 29 FEBRUARY, 2024
th
PRONOUNCED ON : 18 JUNE, 2024
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JUDGMENT :-
1. The Plaintiff, Vithalnagar Society Ltd, a Co-operative
Housing Society registered under the Bombay Co-operative
Housing Societies Act, 1925 has filed the Originating
Summons, for determination by this Court, of the true and
correct interpretation and legal effect of some of the clauses,
terms and conditions in the written instrument executed
between the Co-owners Societies (being ‘Common Plots
Conveyance’) and the defendant no.3 i.e. the Maharashtra
Housing and Area Development Authority (MHADA) a
statutory body constituted under the provisions of the
Maharashtra Housing and Area Development Authority Act,
1976, (erstwhile ‘Bombay Housing Board’, a statutory body
constituted under the provisions of the Bombay Housing Act,
1948 ), for sale and purchase of lands being the common plots
namely viz. the Indenture of Conveyance dated 26/04/1960.
14 individual building plot Conveyances were also
executed between the Bombay Housing Board and each
individual co-owners Society between 14/10/1956 and
22/11/1956.
The Plaintiff seeks determination of the following
questions arising from and in respect of the said common plot
conveyance to the following effect:
“(a) Whether on a true and correct construction of the
registered Common Plot Conveyance (read with the 14 Building Plot
Conveyances), the Common Plots are granted, conveyed and
transferred absolutely to the fourteen Co-owners Societies, i.e. the
Plaintiff and Defendant Nos.4 to 16 herein, as co-owners?
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(b) Whether by reason of the use of the expression “tenants in
common” in the registered Common Plots Conveyance (read with
the 14 Building Plot Conveyances), the said instrument granted
only on alleged lease of the Common Plots to the Plaintiff and
Defendant Nos.4 to 16 with title allegedly still remaining in
Defendant No.3 (i.e. MHADA)?
(c) Whether Defendant No.3 (i.e. MHADA) has any right title or
interest in the Common Plots after execution fo the registered
Common Plots Conveyance (read with the executed 14 Building Plot
Conveyances)?”
2. It would be apposite to highlight the background facts in
which the determination of the above questions arises, with
the introduction of the parties to the proceedings before me.
The plaintiff is the one of the Co-operative Housing
Society, whereas the defendant nos. 4 to 16 are distinct Co-
operative Housing Societies, who are the owners of distinct
residential plots and Co-owners of certain common plots, all
forming part of the Juhu Vile Parle Development (‘JVPD’),
located on the left bank of Irla Nala, in Juhu.
The Plaintiff and the defendant nos.4 to 16 are
collectively referred to as the ‘Co-owners Societies’, who
formed an Association, “Juhu Vile Parle Development Co-
operative Housing Association Ltd” i.e. defendant no.17
(hereinafter referred to as the ‘Association’).
Defendant no.1 is the Municipal Corporation of Greater
Mumbai a statutory body constituted under the provisions of
the Mumbai Municipal Corporation Act (hereinafter referred
to as MCGM) whereas the defendant no.2 is its Municipal
Commissioner. The defendant No.3 is the Maharashtra
Housing and Area Development Authority ( MHADA) formerly
the Bombay Housing Board (‘BHB’).
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3. In or around 1950, at the request of the Co-owner
Societies, the Government of Bombay acquired distinct pockets
of land in village Juhu, admeasuring 202 Acres and 35
Gunthas or thereabouts as well as certain pieces and parcels
of land in village Vile Parle admeasuring 223 Acres 27
Gunthas for housing schemes, to be conveyed to be Co-owner
Societies, which agreed to pay the cost of acquisition and
development of the said lands, situated on both the right bank
as well as the left bank of Irla Nala in Juhu.
On acquisition, possession of the said land was handed
over to the Bombay Housing Board by the Special Land
Acquisition Officer and the land thereafter, vested in it.
4. The Government of Bombay vide its order dated
14/05/1951, a written instrument, sanctioned the scheme for
laying out and development of the said land for the purpose of
allotment, to the Co-owners Societies and entrusted the work
of the execution of the scheme to Bombay Housing Board and
at its request granted exemption to the scheme, from the
provisions of Section 26 to 33 of the Bombay Housing Board
Act, 1948. As per the recital in the instrument, the
Development Department of the Government of Bombay
approved the final layout of the said scheme and the allotment
of building plots to individual participating societies by its
letter dated 1/06/1955 and approval was granted for the
distribution of the areas for roads, canalization, creek and
common amenities and public utility plots to the participating
societies.
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The building plot allotted and conveyed to the each of the
Co-owner Societies as well as the Common Plots conveyed and
owned in common by the Co-owner Societies are situated on
the left bank of Irla Nala and the present proceedings involve
the same though, there were other plots on the right bank of
Irla Nala, which were conveyed to some other participating
Societies.
5. The written instruments recorded the understanding
between the Bombay Housing Board and the Co-owner
Societies in regard to the building plots, roads etc., by setting
out various stipulations and it was understood that a separate
Deed of Transfer would be made between Defendant No.3 and
the Co-owner Societies the Common Plots and the remaining
area falling under the roads, canalization and creek as ‘tenants
in common.
6. Pursuant thereto, the Bombay Housing Board entered
into 10 separate building plot conveyances with the defendant
nos. 4, 6, 7, 9, 12, 13, to 16 and with the Plaintiff on
14/10/1956 and 3 more conveyances were executed on
30/10/1956 involving defendant nos.8, 10 and 11, whereas on
22/11/1956 building conveyance was executed with defendant
no.5.
Pertinent to note that each of the building plot
conveyance is substantially the same, differing essentially only
in regards to the amount of compensation and the share of
each Society in the common plots, internal roads, canalization
and creek.
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By and under the distinct conveyances, the building plot
describe therein was conveyed separately to each of the Co-
owner Society, and their respective shares in the common
plots, internal road, canalization, and creek were also
specified, as agreed.
7. On execution of the aforesaid conveyances the Bombay
Housing Board, conveyed, sold and transferred the plots
constituting the JVPD Housing Scheme on the left bank of Irla
Nala absolutely to each Co-owner Society, for the consideration
set out in each of the building plot conveyances, worked out by
it at the rate of Rs. 10/- per square yard of the area of each of
the building plot and the consideration included the cost of
acquisition and development of the common areas i.e. the
common plots as well as the remaining areas of the internal
road, canalization and creek.
The total area of the building plots conveyed to the Co-
owner Societies under the distinct conveyances was 6,00,103
Sq. yards and as per the plaintiff, the Co-owner societies paid
an aggregate sum of Rs.60,01,030 (Rupees Sixty Lakh One
Thousand and Thirty only) to the Bombay Housing Board as
the agreed consideration for sale, transfer and conveyance of
the plots and the conveyance for the common plots along with
the remaining areas, falling under the roads, canalization and
creek to be owned in common by the Societies.
8. The Bombay Housing Board thereafter executed the
Common Plots Conveyances dated 26/04/1960, which
acknowledged the aggregate consideration paid by the
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Societies for allotment of the building plots as well as the
acquisition and development of the common plots i.e. the areas
under road, canalization and creek. It is the specific case of the
plaintiff that by and under the Common Plots Conveyances,
the Bombay Housing Board granted, conveyed and assured
unto the Co-owner Societies of all those pieces and parcels of
vacant land constituting (i) the common plots [which include
18 amenity plots, and 16 utility plots]; (ii) 40 feet internal
roads; and (iii) canalization and creek of Juhu Vile Parle
Development Scheme, (JVPD) altogether admeasuring
6,07,036 square yards and thereabouts and particularly set
out in Schedule III.
It also conveyed all the estate, right, title, interest, both
at law and in equity and as per the plaintiff, the lands stood
transferred forever, as tenants in common in proportion
particularly set out therein.
9. It would be necessary at this stage to refer to ‘Common
Plots Conveyance’ dated 26/04/1960 and based upon its
covenants, the plaintiff stake a claim that the Societies on the
left bank of Irla Nala were accepted as tenant in common with
its respective shares mentioned of the amenity and public
utility plots as also of the areas falling under the roads,
canalization and creek by specifically declaring as under:
“that it shall be lawful for the said Societies from time to time and at
all times hereinafter peaceably and quietly to enter upon posses
and enjoy the said land and to receive the benefits and profits
thereof and of every part thereof without any Suit, lawful eviction,
interruption, claim or demand whatsoever of from or by the board
or any person or persons lawfully or equitably claiming or to claim
by from under or in trust for the board or them or any of them and
that free from all encumbrances whatsoever made or suffered by
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the board or any person or persons lawfully or equitably claiming as
aforesaid.”
10. It is the case of the Plaintiff, that on true and correct
interpretation of the Common Plots Conveyance, it is evident
that the indenture is an instrument by which all right, title
and interest of the Bombay Housing Board as the owner of the
Immovable property, in respect of the common plots as well as
the remaining areas in the road, canalization and creek is
conveyed and transferred to the respective Societies
absolutely as Co-owners, thereof as tenants in common in the
shares and proportion therein set out and on execution and
registration of the Common Plot Conveyance and the 14
individual building plot conveyances, neither the defendant
no.3 nor its predecessors Bombay Housing Board can claim
any right, title or interest and since it enjoyed the common
plots and area commonly shared, as “tenants in common”,
which is indicative of the nature of the common ownership
rights of and between the Co-owners Societies and its nature
being, full ownership right.
It is the specific case of the plaintiff that the true legal
effect and meaning of the provisions of the Common Plots
Conveyance and the meaning of the expression “tenants in
common” as used therein, is evident from the reading of the
Common Plots Conveyance in conjunction with the Building
Plot Conveyance, under which each of the Co-owners Society
has paid the entire consideration for allotment, sale, transfer
and conveyance of the building plots in its favour individually,
for the acquisition and development of the common plots
including the remaining areas under internal roads,
canalization, and creek. This position, according to the
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Plaintiff was enjoyed by each Co-owner Society and the
defendants also acted based on this understanding, until
recently in 2018, when it sought to raise a plea that the Co-
owners Societies are only Lessees of the common plots and this
according to the plaintiff is a wholly misconceived notion and a
belated and afterthought stand.
11. It is the case of the Plaintiff, that at all material times
the Co-owner Societies have acted on the basis of their joint
ownership rights with respect to common plots and the period
between 2010-2011, 8 separate notices were issued by the
defendant no.17 to defendant nos.1 and 2 under Section 127
(1) of the Maharashtra Regional and Town Planning Act, 1966,
by relying upon the Common Plots Conveyance, premised on a
assertion that the Co-owners Societies are joint owners of the
common plots, calling upon the authorities to take necessary
action, to complete the acquisition of the common plots, all of
which were reserved for various purposes like library,
playground, municipal retail market, D.P. Road, Garden,
Recreation Ground etc.
Upon purchase notices being issued, acquisition
proceedings for the Reserved Common Plots, were commenced
by the Additional District Collector by issuing notifications
under Section 6 of the Land Acquisition Act, 1894 r/w Section
126 (4) of the MRTP Act, 1966, and presently the acquisition
proceedings are pending.
This event is relied upon by the plaintiff to assert that
the acquisition proceedings by defendant nos.1 and 2 was
premised on the Co-owner Societies having full ownership
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rights in respect of the common plots by virtue of the common
plots conveyance and it is only in the later part of 2017, it was
informed that the acquisition proceedings were suspended.
12. The Co-owner Societies came across the reports in
newspapers, where defendant nos.1 and 2 asserted that the
common plots belong to MHADA and the Co-owner Societies
were tenants and therefore RTI Applications were filed, which
resulted in procuring certain internal documents, in form of
communications exchanged between the defendants however,
there was no intimation received by the Co-owner Societies from
MHADA.
According to the Plaintiff, defendant nos.1 to 3, as well as
the State of Maharashtra have accepted and proceeded on the
basis that the Co-owner Societies are joint-owners of the
common plots and admittedly paid entire consideration under
the Building Conveyances/Common Plots Conveyance but the
denial of these rights at this stage and after lapse of almost 50
years, is the cause for seeking true and correct interpretation of
the terms of the Common Plots Conveyance and the Building
Plot Conveyance and the true constructions of the words
‘tenants in common’ in the context, in which the expression is
used in the instruments. What is expected by the Plaintiff is an
earlier resolution of this question, which according to it will
prevent a multitude of disputes involving matters of pure legal
interpretation and legal effects of the terms in the written
instruments.
13. Learned Senior Counsel Mr.Fredun, by inviting my
attention to Chapter XVII of the Bombay High Court (Original
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Side) Rules 1980 “Originating Summons” would submit that any
person claiming to be interested in the relief sought as
beneficiary under the trusts of any deed or instrument, or as
claiming by assignment, may apply for issuance of Originating
Summons for such relief of the nature or kind, as set out in Rule
238 by issuing summons. He would place reliance upon Rule
245 of Chapter XVII, where any person claiming to be interested
under the deed, will or other written instrument, may apply for
issuance of an Originating Summons for determination of any
question of construction arising under the instrument and for a
declaration of the rights of the person interested.
The learned Senior Counsel would place reliance upon the
decision of division bench of this Court in case of Mazda
1
Theatres Ltd vs. Gordhandas Tribhuwandas Mangaldas , and
would submit that only two conditions are required for
maintainability of an Originating Summons; that there must be
a written instrument and what is required to be done by the
Court, is declaration of the rights of the person interested under
the written instrument.
By submitting that the plaintiff and the defendant nos.4 to
16 are the absolute owners of various plots of lands situated in
Juhu, under 14 separate deeds of conveyance executed in their
favour, he would submit that lands were conveyed to the
Societies for housing purpose and by a separate, duly registered
deed of conveyance dated 24/04/1960, the Bombay Housing
Board transferred and conveyed absolutely, the common plots
as part of the scheme to the 14 Societies, in their capacity as
‘tenants in common’, i.e. as Co-owners to the extent of their
proportionate share in the total area.
1 (1954)LVI BLR 1080
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Mr. Devitre would submit that after lapse of about 60
years of the date of registered conveyance, the defendant
nos.1 to 3 for the first time are attempting an interpretation of
some terms of the Common Plot Conveyance to indicate that
the common plots did not vest in the Society’s, as owner but
they are only the ‘tenants’, as the Common Plots Conveyance
has used the terminology “tenants in common”, and therefore,
on completion of the JVPD scheme, the common plots vested in
the MCGM and in the wake of this situation, it was not open for
the Bombay Housing Board to convey or transfer them to the
14 Co-owner Societies. Therefore, according to Mr. Devitre, it
has become necessary to ascertain whether, on a true and
correct construction of the Common Plots Conveyance read
with the Individual Plot Conveyances, whether the common
plots are conveyed absolutely to the Co-owner Societies as Co-
owners and whether MHADA (erstwhile Bombay Housing
Board) has any right, title or interest in the common plots,
after execution of the registered Common Plots Conveyance.
In addition another important point, which deserve
determination is whether, the conveyances granted the lease
of common plots, in the wake of the expression “tenants in
common” used in this instrument and whether the ownership
of the common plots with the title continue to vest in
defendant no.3.
14. According to Mr. Devitre, the questions for determination
deserve consideration by this Court, in light of the specific
terms of the Common Plots Conveyance under which the
Bombay Housing Board transferred the ownership rights of the
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common plots to the Housing Societies, by referring to them as
“Co-owners” of the Common Plots as “tenants in common” and
by focusing upon the recitals in the Common Plots Conveyance.
Further he propound, that the question will have to be
determined in the backdrop of the factual position, relating to
the approvals, sanctions and directions of the State
Government and other Authorities for the acquisition by and
vesting of the common plots in the Bombay Housing Board for
the purposes of the scheme and its transfer to the 14 Co-owner
Societies. According to him, the material fact of the Building
Plot Conveyances in favour of 14 Co-owner Societies is not in
dispute and it is also not disputed that the transfer was with the
approval and sanction of the State of Bombay.
He would emphasis on the payment of consideration for
acquisition of the plots included in the scheme by the Societies
and its exemption from the provisions of Section 26 to 33, as
well as an undisputed fact, that there was no declaration under
Section 38 (1) of the of the Bombay Housing Board Act, 1948,
or any resolution being passed by the Board exercising any
option under Section 38(2). According to him, the common
plots vested in the Bombay Housing Board, were conveyed and
transferred to the 14 Co-owner Societies and therefore, he
would request for determination of the aforesaid issue by
arguing in favour of maintainability of the Originating
Summons.
15. The learned Senior Counsel, Mr. J. P. Sen, who represent
the MCGM has raised preliminary objection as regards the
scope of the Originating Summons and the objection is raised
on two counts; the scope of the Originating Summons and also
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on the point that even if it is held to be maintainable, whether
the relief prayed can be granted.
Mr. Sen would submit that the High Court exercises a
limited jurisdiction while deciding the Originating Summons
and its scope is defined under Chapter XVII and in particular
in Rule 238 to 261 of Original Side Rules.
Responding to the submission on behalf of the plaintiff,
that the Originating Summons is maintainable in light of Rule
245, he would submit that the scope for enquiry under this
provision is very limited and the High Court can only
determine a question of construction of a particular
instrument or declaration of any rights thereunder and hence,
the jurisdiction is restricted only to such a construction or
declaration and nothing more.
It is submitted that once the validity of an instrument,
the construction whereof, or declaration of any rights
whereunder, is set up in defence by the defendant, this Court
would have no jurisdiction to determine the validity or legality
of such an instrument while deciding an originating summons
and he would place reliance upon Rule 241 .
It is further contended by Mr. Sen, that questions
regarding the existence or validity of a contract or instrument
cannot be adjudicated upon while deciding the Originating
Summons and this Court shall not exercise its jurisdiction to
decide upon the existence or validity of a conveyance, which is
sought to be interpreted/construed by the Plaintiff by taking
recourse to the procedure of Originating Summons. A specific
stand is adopted by Mr. Sen, to the effect that the conveyance
itself is a void document in view of the statutorily vested right
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in defendant no.1, to receive conveyance of the open spaces
from the Bombay Board in view of Section 38(2) of the
Bombay Housing Board Act, 1948.
According to him, the conveyance which is the focal point
of the proceedings itself is a void document which cannot confer
any right, title and/or interest in favour of the Plaintiff or the
Association of which it is a member i.e. defendant no.17 in
respect of the amenity plots, which are areas earmarked for
recreation and ventilation, as the Bombay Board could not have
conveyed any open spaces, to any entity other than the MCGM
and if it was not permissible for it to do so, any conveyance
which is alleged to have conveyed the right, title and interest in
the plots to the plaintiff or the other Societies is void ab initio
and therefore there is no question of seeking a declaration on
the basis of the purported conveyance, that the Societies are co-
owners of the amenity plots without deciding the issue of
legality of the purported conveyance.
In addition, another point of significance according to Mr.
Sen is filing of Suit No.89 of 2017, by the Plaintiff along with the
other member Societies of defendant no.17, seeking the reliefs
in respect of one of the amenity plots namely plot no.A-6 and by
inviting my attention to the prayers in the Plaint, he would
submit that the prayers necessarily presuppose and are
ancillary to the determination of the title of the Societies to the
said amenity plot and by extension, the issue of validity for the
purported conveyance and the issue raised in the Originating
Summons is the one which is covered by the Suit.
In an extremely critical manner, Mr. Sen would urge that,
what the Plaintiff is really seeking through the Originating
Summons is, determination in a summary manner and
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without evidence at trial of the principal issue arising out of
the Suit, already instituted and this is nothing but an attempt
of forum shopping, which disentitle the plaintiff to any relief in
the Originating Summons and he should await the outcome of
the Suit, as invocation of the jurisdiction of this Court is
nothing but an abuse of process and an exercise in
opportunism.
16. On merits Mr. Sen would elaborate on two points, which
he has raised by way of preliminary objection and he would
submit that the defendant no.1 has a vested right to receive a
conveyance of all open spaces for recreation or ventilation,
including all amenity plots as also public streets and roads
forming part of the Housing Scheme under the Act of 1948 and
he has pitched this vested right, as akin to a statutory vesting
as provided under Section 38 (2) of the Bombay Housing
Board Act, as soon as the Housing scheme is completed. By
relying upon the unamended provision, of sub-Section (2) of
Section 38, it is the submission of Mr. Sen that when any open
space for purposes of ventilation or recreation has been
provided by the board in executing any housing scheme, it
shall on completion be transferred to the local authority
concerned by resolution of the board and it shall thereupon
vest in and be maintained at the expense of the local
Authority.
Mr. Sen would point his finger to the two failures on part
of the Board i.e. the transfer of the spaces contemplated under
Sub-section (2) of Section 38 to the Plaintiff and secondly its
failure to pass any resolution. According to him, the language
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used in sub-section (2) is mandatory and in case of violation of
this mandate, a right has accrued in defendant no.1, to receive
conveyance of the said plots, akin to statutory vesting and this
vested right is a complete vesting in title of such plots and such
right comes into existence as soon as the housing scheme is
completed under the Bombay Board Act, 1948.
It is further submitted that the present Juhu Vile Parle
Development Scheme JVPD has been completed before 1960
when the said conveyance was executed by the Bombay Board
in favour of the defendant no.17 and since the JVPD Scheme is
a housing scheme under the Bombay Board Act, Sections 23 to
41 would apply to the scheme with equal force though the
scheme has received exemption from application of Sections
26 to 33 of the Act of 1948.
Despite such exemption, according to Mr. Sen, the
provision contained in subsection (2) of Section 38 would
continue to apply to such a housing scheme and exemption
from some of the provisions of the statute would have no
impact on the statutory creation of vested right in favour of
defendant no.1 i.e. MCGM as contemplated under Section
38(2) of the Bombay Board Act.
Mr. Sen would submit that the Bombay Board Act was
amended in the year 1964 and the amended Section 38, and in
particular Sub-section (2) gave an option to the board, to
transfer such open space to the local authority concern on
completion of the scheme by passing a resolution and
thereupon such open space shall be vested and be maintained
at the expense of the local authority. However this amended
provision, would not be applicable in the present case is the
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specific submission as the amendment was effected in the year
1964 i.e. after the vesting of statutory right in the defendant
no.1 under the unamended Section 38(2) of the Bombay Board
Act, since by the amended provision the board had an option,
to transfer the open space to the local authority which option
was not available earlier.
Further upon the Bombay Board Act being repealed by
the Maharashtra Housing and Area Development Act, 1976,
the option, continue to find place in sub-section (2) of Section
61, which leave it open for the Authority i.e. Maharashtra
Housing Development Authority (MHADA) to exercise the
option to transfer such open space to the local authority, by
passing a resolution and like the amended sub-section (2) of
Section 38, such open space shall vest in and be maintained by
the local authority.
17. In the wake of the aforesaid statutory scheme, Mr. Sen
has submitted that at the relevant time i.e. in the year 1960
and prior thereto when the housing scheme was completed,
the Bombay Board was statutorily bound to compulsorily
transfer the open spaces in favour of defendant no.1, MCGM,
which was entitled to receive conveyance of the open spaces
from the Board and now from MHADA.
18. The next point which Mr. Sen has pressed into service,
being about the common conveyance/indenture dated
26/04/1960, being void as it defeated the statutory vested
right of MCGM.
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Mr. Sen has relied upon Section 23 of the Indian Contract
Act, 1872, which has declared, as to what consideration and
objects are lawful and what are not and by invoking the said
provision, he would submit that the consideration/object of the
agreement is lawful unless it is forbidden by law or is of such a
nature that, if permitted, it would defeat the provisions of any
law.
Every agreement of which the object or consideration is
void according to Mr. Sen.
By invoking Section 6(h) of the Transfer of Property Act,
1882, which provide that no immovable property can be
conveyed to a person for an unlawful object or consideration
within the meaning of Section 23 of the Contract Act, to be read
with Section 84 of the Indian Trusts Act, which provide that
when the owner of the property transfer it to another, for an
illegal purpose and such purpose is not carried into execution,
the transferee must hold the property for the benefit of the
transferrer, he would submit that the plaintiff as well as other
members of the Society of defendant no.17, would derive no right,
title, and or interest in the amenity plots, conveyed under the
conveyance and they would simply hold such plots as trustees for
the benefit of the transferee i.e. the erstwhile Bombay Board and
now MHADA and which benefit, defendant no.1 would be
ultimately entitled to, pursuant to this statutory vested right
under Section 38 (2) of the unamended Bombay Board Act.
The quintessence of his argument is, that the Bombay
Board could not have conveyed the plots under the conveyance
in favour of the Societies and no right, title or interest has been
transferred pursuant to the said conveyance to the defendant
no.17 Association and/or its members and therefore the
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submission that it was conveyed for consideration according to
him is irrelevant, as mere payment of consideration cannot
make otherwise void conveyance valid, legal or binding and
particularly as against the MCGM, which has a statutory
vested right to receive conveyance of the property.
19. Dealing with the arguments that the MCGM initiated a
process for acquisition of the conveyed plots, Mr. Sen would
assertively submit that the the acquisition proceedings in
respect of the subject plot were incorrectly initiated, as the
plaintiff and the other Societies are not the owner of the subject
plot which was conveyed through a void document.
His last submission in law is that though MCGM had
incorrectly taken steps to begin acquisitions of the subject plot
but on realizing the mistake, the acquisition was promptly
stopped and there can be no estoppel against law and the right
which vested in MCGM as a statutory right to receive the
conveyance of the open spaces of the JVPD scheme from the
Bombay Board and now from MHADA in no way is effected by the
steps taken by it to acquire the subject plot.
Mr. Sen has relied upon various Authorities in law to
bolster his submission and as I deal with the counter contentions,
I shall also deal with the Authorities cited by Mr. Sen.
20. On hearing learned Senior Counsel Mr.F. E. Devitre for the
plaintiff and learned Senior Counsel Mr. J. P. Sen for the
defendant No.1 - Municipal Corporation of Greater Mumbai
(MCGM), I have perused the entire record placed before me,
which include the written submissions placed by the respective
Senior Counsel. I have also heard learned Counsel Mr. P. G. Lad
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for the MHADA, the erstwhile Bombay Housing Board, who has
tendered its response in form of Affidavit and also its brief
submissions.
The arguments of Mr.Devitre has to be appreciated in the
wake of the two objections raised by Mr. Sen, the first being the
maintainability of the originating summons and specifically
reliance being placed on Rule 241 of the Bombay High Court
(Original Side) Rules and his submission that a question
affecting the existence on validity of the contract cannot be
determined by this Court while exercising the power conferred
under Chapter XVII of the Original Side Rules.
This argument which Mr. Sen has elaborated in the wake
of Section 23 of the Contract Act is to be read with Section 6(h)
of the Transfer of Property Act, 1882 and it is his submission
that when the Conveyance agreement in question itself is void,
no immovable property has been conveyed within the meaning
of Section 23 of the Contract Act and in view of this, the
conveyance is a void document as it defeat the statutorily
vested right in the defendant No.1 under Section 38(2) of the
Unamended Bombay Housing Board Act, 1948 and according to
him, the void document has failed to convey any valid title in
favour of the plaintiffs and by stretching his arguments further,
Mr. Sen has argued that the documents being void, it need not
be challenged by him, contending it to be void ab intio and in
fact, in the wake of the legal position, which he has relied upon,
no cognizance ought to be taken of such a void document.
21. It has, therefore, become necessary to deal with the
necessary documents on the basis of which, the plaintiff has
filed this originating summons, calling upon this Court to
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answer the three questions, referred to above and seeking a
declaration on the same.
The first document, which warrant attention is the
Indenture dated 26/04/1960 executed between the Bombay
Housing Board constituted under the Bombay Act of 1948 "the
Board" of one part and the 14 Co-operative Housing Societies
including the plaintiff i.e. Vithalnagar Co-operative Housing
Society Ltd, the 14 Societies being located on the left bank Irla
Nala being registered under the Bombay Co-operative Societies
Act, 1925.
The Indenture record that at the request of the certain
Co-operative Housing Societies, the Government of Bombay
acquired all that piece and parcel of Khajan Land in the Village
called Juhu in the District Bombay Suburban, Tq. South
Salsette admeasuring 202 acres, 35 Gunthas as or thereabout
also in the village called Vile Parle in the District Bombay
Suburban, Tq. South Salsette admeasuring 22 to 23 acres, 27
Gunthas as described in Schedule-I for Housing Schemes to be
allotted to Co-operative Housing Societies, which had agreed to
pay the cost of acquisition and development of the said land,
the indenture clearly recording that on acquisition, possession
of all the said land was given to the Board and the land shall
vest in the Board.
This arrangement was recorded, in the wake of the
Resolution dated 15/03/1949, issued by the Government of
Bombay deemed, as it deemed expedient to make provision to
provide Housing accommodation and to the Improvement and
Development of the said land. With this avowed object, the
Government of Bombay, through Labour and Housing
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Department sanctioned the scheme of laying out and
developing of the land for the purpose of allotment to the Co-
operative Housing Societies and entrusted the work of
execution of the scheme to the Board vide its order dated
14/05/1951. This scheme received exemption from the
provisions of Sections 26 to 33 (Both inclusive) of the Bombay
Housing Board Act, 1948.
In pursuance of the said scheme, the Board marked out
building plots for allotment of Co-operative Housing Societies
demarcated and constructed roads and marked out plots for
General Amenity and Public Utility purposes to be owned in
common by the present Societies both on the left bank of Irla
Nala and the right bank.
22. This Indenture received approval from the Government
vide Letter No.JDS 1155/17015-H on 01/06/1955, when
approval was granted to the final layout of the scheme and the
allotment of building plots to individual Societies and also
distribution of the areas occupied by Roads, Canalization, Creek
and Common Amenities and Public Utility Plots to the Societies.
Even the cost of earth fielding and construction of roads and
Canalization was determined in the Indenture and it
contemplated as below :-
"Whereas on the basis of the total cost of completing scheme on the
left bank of Irla Nala including the cost of earth fielding and
construction of roads and Canalization, the cost payable by each
society works out about Rs.10.00 per square yard of the building
plots to be allotted to each society including the proportionate cost
of acquisition and development of common Amenity and Utility
Plots, Roads and Canalization and whereas the 14 societies have
paid the proportionate cost payable by them amounting in all to
Rs.60,01,030.00, which is total estimated cost of acquisition and
development of the whole area on the left bank of Irla Nala".
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23. The indenture also recorded that the Bombay Housing
Board has handed over to each society the building plots as
allocated by the respective conveyances and this included the
conveyance dated 14/10/1956 in favour of the plaintiff,
Vithalnagar Co-operative Housing Society Ltd. In addition,
there were other 13 conveyances, which were executed, being
the individual conveyance and the Board also acknowledged
the receipt of the amount payable by each society aggregating
to Rs.61,01,030.00.
The status of these societies was specifically set out, as
below :-
"AND WHEREAS it has been agreed that the said Societies on the
left bank of the Irla Nala are tenants in common with their
respective shares as hereinafter mentioned of the amenity and
public utility plots as hereinabove recited as also of the areas falling
under the roads, canalisation and creek admeasuring about
8,15,467 square yards as delineated on Plan No.II hereto annexed
and more particularly described in Schedule II hereunder written
AND WHEREAS it has been agreed that the said 60' and 100' roads
should be transferred to the Municipal Corporation of Greater
Bombay on terms and conditions agreed to by all Co-operative
Housing Societies participating in the Scheme and the Municipal
Commissioner of Greater Bombay AND WHEREAS it has been
agreed that the remaining areas of amenity and utility plots,
internal roads, canalization and creek belong to the Fourteen
Societies as tenants in common and each individual society has a
share in them as detailed below AND WHEREAS it has been agreed
that a separate Deed of Transfer should be made between the Board
and the fourteen Co-operative Housing Societies on the left Bank of
the Irla Nala participating in the scheme conveying to the said
Societies the common area mentioned above as tenants in common
as aforesaid AND WHEREAS the Board and the said Societies have
now decided to execute the said deed."
24. By the said Indenture, the Plaintiff along with other 13
societies were conveyed all that piece or parcel of vacant land,
by specially referring to, as below :-
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"All that piece or parcel of vacant land plot Nos. (Amenity Plots) A1,
A2, A3, A4, A5, A6, A7, A8, A9, A9A, A10, A10A, A10B, A11, A12,
A12/1, A12/2, A12/3, (Utility plots) U1, U2, U3, U4, U5, U6, U7, U8,
U9, U10, U11, U12, U13, U14, U15, U16; 40' internal roads,
canalisation and creek of Juhu Vile Parle Development scheme
situate at Juhu Vile Parle in Greater Bombay in the Registration
Sub District of Bandra in the Registration District of Bombay
admeasuring in all 6,07,036 square yards or thereabouts more
particularly described in the third Schedule hereunder written and
delineated on the Plans No.II, III(1), III(2), III(3), III(4), III(5),
III(6), III(7), III(8), III(9), III(10), III(11), III(12), III(13), III(14),
III(15), III(16), III(17), III(18), III(19), III(20), III(21), III(22) and
III(23), hereto annexed together with all and singular the yards
wells, ways, roads, compounds, paths, canalisation, creeks, waters,
water-courses, sewers, ditches, drains, trees; plants, lights,
liberties, easements, profits; privileges, advantages, rights,
members and appurtenances whatsoever to the said land belonging
or in anywise appeartaining to the same or any part thereof now or
at any time heretofore usually held used occupied or enjoyed or
reputed to belong or be appurtenant thereto and all the estate right
title interest claim and demand whatsoever both at law and in
equity of the Board in, to or upon the said land and every part
thereof TO HAVE AND TO HOLD the said land hereby granted
conveyed and expressed so to be unto and to the use of the said
Societies for over as tenants in common in the proportion
hereinafter stated."
25. In the wake of the aforesaid Indenture, the Board was
granted full right, power and absolute authority to grant
convey and assure the land granted, conveyed and assured
under the Indenture so to be unto and to the use of the
societies in the manner stated therein and it was declared that
it shall be lawful to the societies from time to time and all the
times, hereafter peacefully and quietly to enter upon, possess
and enjoy the said land and to receive the benefits and profits
thereof and of every part thereof without any suit, lawful
eviction, interruption claim or demand whatsoever from or by
the Board or any person or persons lawfully or equitably
claiming or to claim by from under or in trust of the Board or
any of them and free from all encumbrances whatsoever.
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26. Separate and individual Indentures/Deeds were executed
with each individual society by the Bombay Housing Board,
largely similar in its covenant and the Indenture dated
14/10/1956 with the Plaintiff - Society is annexed at Exh.B and
the contents thereof are specifically taken note of, which
reproduced hereunder :-
"NOW THIS INDENTURE WITNESSETH that in pursuance of the said
agreement and in consideration of the sum of Rs.6,01,000/- (Six
lacs One thousand only) .................... paid as aforesaid before the
execution of these presents by the Society to the Board the receipt
of which the Board doth hereby admit and acknowledge and of and
from the same and every part thereof doth for ever release and
discharge the said Society the Board doth hereby grant convey and
assure unto the said Society all that piece or parcel of vacant land
admeasuring 60,100 ..... square Yards bearing plot Nos.12/1, 12/2 &
12/3 of the Juhu Vile Parle Development Scheme situate at Juhu
Vile Parle in Greater Bombay in the Registration Sub District of
Bandra in the Registration District of Bombay more particularly
described in Schedule III hereunder written and delineated on the
Plan No. III thereof hereto annexed and shown thereon by a
boundary line coloured red together with all and singular the yards
wells, ways, compounds, paths, waters, water courses, sewers,
ditches, drains, trees, plants, lights, liberties, easements, profits,
privileges, advantages, rights, members and appurtenances
whatsoever to the said land belonging or in anywise appertaining to
the same or any part thereof now or at any time heretofore usually
held used occupied or enjoyed or reputed to belong or be
appurtenant thereto AND all the estate right title interest claim and
demand whatsoever both at law and in equity of the Board in, to or
upon the said land and every part thereof TO HAVE AND TO HOLD
the said land hereby granted conveyed and expressed so to be unto
and to the use of the said Society for ever for housing scheme
SUBJECT NEVERTHELESS to the payment to the said Board of the
balance of the cost of the said land and payment of liabilities in
execution of the scheme for its development as mentioned above
and to the payment of all rents taxes rates assessments dues and
duties now or hereafter to become payable to the Municipality or
the State of Bombay or any other public or local body in respect of
the said land AND the Board doth hereby covenant with the Society
that notwithstanding any act deed or thing whatsoever by the
Board at any time heretobefore made done or committed or omitted
to the contrary the Board now hath good right full power and
absolute authority to grant convey and assure the said piece or
parcel of vacant land hereby granted conveyed and assured or
expressed so to be unto and to the use of the Society in manner
aforesaid."
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27. The submission of Mr. Sen that this conveyance is void,
as it is unlawful or illegal under Section 23 of the Indian
Contract Act, as it is canvassed by him that it is the MCGM i.e.
Defendant No.1, who has a vested right to receive conveyance
of all the open spaces for recreation or ventilation, including
all amenity plots, as also public streets and lights forming part
of the Housing Scheme and this right is akin to a statutory
vesting, as soon as the Housing Scheme is completed. By
placing reliance on Unamended Section 38, Mr. Sen has urged
that on completion of the scheme, all the open spaces for the
purpose of ventilation or recreation, which has been provided
by the Board, shall vest in, on passing of the Resolution by the
Board and it shall be maintained at the expense of Local
Authority.
According to Mr.Sen, the use of the word 'shall' in the
said provision, leave no option open for the Bombay Board
under the Act to consider transferring the open spaces to any
entity other than Defendant No.1 and the effect of the said
provision, result in a vested right in MCGM to receive
conveyance of the said plots and there is complete vesting in it.
According to Mr. Sen, in 1960 and prior thereto, a Housing
Scheme was completed and, hence, the Bombay Board was
mandatorily required to transfer the open space to Defendant
No.1 and a right was created in its favour to receive
conveyance of the open spaces from Bombay Board and now,
MHADA and if there is no compliance of the stipulation, the
conveyance dated 26/04/1960 is rendered void, as it failed to
comply the statutory requirement of vesting of these spaces in
MCGM under Section 38(2) of the Unamended Bombay Board
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Act. He has therefore, sought to convey, that the consideration
or object of agreement, which is of such a nature that if
permitted, would defeat the provisions of Statutory Law or
Rules framed thereunder is unlawful and such an agreement is
consequently void under Section 23 of the Indian Contract Act,
1872.
28. In order to test this argument, which is strongly resisted
by Mr.Devitre, I must turn my attention to the Statutory
Provisions.
The Bombay Housing Board Act enacted in 1948 aimed at
making such schemes and carrying out such works, as are
necessary for the purpose of satisfying the need of the Housing
Accommodation and with that object in view, the Maharashtra
Housing Board was incorporated, as Body Corporate, having
perpetual succession, competent to acquire and hold property
both movable and immovable and to contract and to perform all
such things necessary for giving effect to the Enactment.
Chapter-III of the Act contemplated "Housing Schemes", as
it provided that the State Government may on such terms and
conditions as it deemed fit to impose, entrust to the Board the
framing an institution of any Housing Scheme and the Board
may then, on such terms and conditions, as may be agreed upon
and with the previous approval of the State Government, take
over for execution any Housing Scheme on behalf of Local
Authority or Co-operative Society or on behalf of employer,
when it undertake to cater to the Housing need of its employees.
Section 24 of the Act clearly provided as to what shall be
provided in the scheme and the following is provided amongst
others :
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f] Construction and re-construction of buildings.
g] The sale, letting or exchange of any property comprised in
the scheme.
h] The construction and alteration of streets and back lanes.
j] The provision of Parks, Playing Fields and Open Space for
the benefit of any area comprised in the scheme for any adjoining area
and enlargement of existing Parks, Playing Fields, Open Spaces, and
Approaches.
p] Any other matter for which, in the opinion of the [State]
Government, it is expedient to make provision with a view to provide
Housing Accommodation and to the Improvement or Development of
any area comprised in scheme or any adjoining area or the general
efficiency of the scheme.
29. Section 34 of the Act of 1948 clearly provided for
transfer of any street, square or other land or any part thereof
situated in any area of a Corporation, Municipality or Zilla
Parishad and vested in it, but is required for the purpose of any
Housing Scheme and Section 35 is a provision of re-vesting of
the said land in the Corporation, Municipality or Zilla
Parishad, as a part of street or of an open space under Section
38.
The most relevant provision, is Section 38, which
contemplate vesting in Corporation, Municipality or Zilla
Parishad of streets laid out or altered and open space provided
by the Board under the Housing Scheme and Sub-section (2) of
Section 38 and the said provision read thus :-
"38. (1) Whenever the Provincial Government is satisfied -
… …. …
(2) When any open space for purposes of ventilation or recreation
has been provided by the Board in executing any housing scheme, it
shall on completion be transferred to the local authority concerned,
by resolution of the Board, and shall thereupon vest in, and be
maintained at the expense of, the local authority:
Provided that the local authority may require the Board before any
such open space is so transferred to enclose, level, turf, drain and
lay-out such space and provide footpaths therein, and if necessary,
to provide lamps and other apparatus for lighting it".
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30. Sub-section (2), which read as above, however came to
be substituted by Maharashtra Act No.III of 1964 and the
amended provision read to the following effect :-
"(2) When any open space for purposes of ventilation or recreation
has been provided by the Board in executing any housing scheme,
[the Board may at its opinion by resolution transfer such open
space to the local authority concerned on completion of the scheme
and thereupon such open space shall vest in], and be maintained at
the expense of, the local authority".
31. The present case is covered by the Unamended provision,
which contemplated that on completion of any Housing
Scheme by the Board, the open spaces for the purpose of
ventilation or recreation shall be transferred to the Local
Authority i.e. MCGM and continues to vest in it.
This provision is, however subjected to, to safeguards;
the first being it shall be transferred to the Local Authority by
passing Resolution by the Board and the second being,
thereupon, it shall vest in and be maintained at the expense of
the Local Authority.
In the present case, admittedly, there was no Resolution
passed by the Board and as a result thereof, the Amenities and
Public Utilities were never transferred to the Corporation and
in fact, as per the Deed of 26/04/1960, the 14 societies as well
as the Respondent No.17 continued to enjoy, hold and possess
18 Amenity Plots and 16 Utility Plots. The individual Deed of
Conveyances in favour of the Plaintiff and the Defendant No.4
to 16 - Societies had clearly contemplated that remaining areas
of Amenity and Utility Plots, Internal Roads, Canalization and
Creek shall be owned in common by the society participating
in the scheme, in which the society shall have its share in
proportion, as tenants in common and it also clearly
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contemplated that the cost of acquisition and development of
the common areas is included in the total cost on the basis of
which, the society had paid its share of cost of the building
plots.
The common plots conveyance, thus included other
common areas i.e. 40 feet Internal Roads, Canalization, Streets
and Creek Land.
The areas for 100 feet and 60 feet wide road (admeasuring
2,08,431 square yards) was agreed to be transferred to MCGM
in terms of the conveyance and it was accordingly transferred.
All the 14 societies paid the proportionate cost payable by them
amounting to Rs.60,01,030.00, which is total estimated cost of
acquisition and development of the whole area on the left bank
of Irla Nala and in the common plot conveyance, the Bombay
Housing Board, acknowledged the receipt of this amount, which
also stipulated that on completion of the scheme, the Board will
work out the final cost of the scheme and intimate to the society
concerned, the balance, if any of the amount payable by it to the
Board by way of its final liability.
Admittedly, no such intimation was ever received by the
Plaintiff or any of the co-owner society.
32. The Plaintiff has placed on record a letter dated
22/11/1960 from the Housing Commissioner addressed to the
MCGM (the then Municipal Commissioner), through its
Additional Affidavit filed on 15/07/1953 being marked as
Exh.M, which had recorded as below :-
“The area to the South of Irla Nala in the scheme has been allotted
to the 14 Co-operative Housing Societies. The residential plots have
been sold to the societies individually, while the Utility and Amenity
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Plots, Internal Roads, and Land under Canalization and Creek have
been allotted to the 14 societies as "tenants in common" i.e. they are
owned "jointly" for the 14 societies having their share in proportion
to the residential area purchased by each of them.”
The letter further mention that the layout plan of the scheme
has been approved by the Government and the 14 societies
have to utilize the plots for specific purpose for which they are
earmarked in the layout plan.
A copy of the Conveyance Deed executed by the Board
with the 14 societies, together with a layout plan of the
scheme, clearly mentioning the use and purpose of each of the
common plots or area was also forwarded with a request that
the Municipality may ensure that the construction work other
than the purpose specified in the layout is not undertaken,
either by the societies or by other parties to whom the
societies may sell these common plots with a further rider
being imposed, that any change in the use of the plots can be
effected only after obtaining prior approval of the Government
through the Maharashtra Housing Board.
33. The aforesaid situation continued till recently, when the
Municipal Commissioner on 09/04/2022 addressed a
Communication to the Chief Executive Officer / Vice-President,
MHADA, purporting to exercise its right over the common
spaces by making reference to the Housing Scheme being
sanctioned under the Bombay Housing Board Act, 1948 for
village Juhu and village Parle in the year 1949 and 1953. The
communication also clearly set out that the Amenity and
Utility Plots, which were conveyed by the Indenture dated
26/04/1960 for Public Amenities, Public Utilities, Internal
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Roads, Canalization and Creek Plots as "Tenants in Common"
having subsequently earmarked as Public Reservations and
Designations in the Development Plan of K / W Ward
sanctioned from time to time. It also make a mention of
Purchase Notices being served by the Association of the Co-
operative Societies on the Municipal Corporation under
Section 127 of the MRTP Act, 1966 claiming ownership, on
failure of the Planning Authority to initiate steps for
acquisition pursuant to the Purchase Notices resulting in
lapsing of the Reservations / Designations.
It is in this letter, the Defendant No.1 - Corporation
projected its understanding, to the effect that since the land
has been given to the society as "Tenant in Common", which
itself proved that the 14 societies cannot claim any legal right
as a owner of the land and they are holding as tenants and
since the Indenture was executed by erstwhile Bombay
Housing Board, which is now substituted by MHADA, by virtue
of Repeal of the Act of 1948, the claim of the society as owner
is not tenable and MHADA is the owner of the property. Action
was initiated for termination of Tenancy in common spaces by
issuing separate notice to the society and by placing reliance
on Section 38(1) and (2) of the Bombay Housing Board Act,
1948, it was informed that MHADA claimed ownership of all
Public Roads, Open Spaces for the purpose of ventilation or
recreation in JVPD Housing Scheme. The reference was
therefore, made to the State Government under Section 38(3)
and the Chief Secretary of Housing had given concurrence to
the letter issued by the Vice-President / CEO (MHADA).
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In short, MCGM claimed ownership of all these plots by
virtue of built in provision in Section 38 of the Act of 1948 and
MHADA Act, 1976, by referring to Section 188 by stating that
these lands on completion of the scheme, vest in the
Corporation.
34. A reading of the Unamended Section 38 of 1948 Act
though sought to be projected by Mr. Sen, by contending that it
is automatic, when the provision in the Statute is read, it
contemplate transfer to the Local Authority concerned by a
Resolution of the Board and it is only thereupon, any open
space for the purposes of ventilation or recreation shall vest in
the Local Authority here MCGM.
35. Mr. Devitre for the Plaintiff, has raised a doubt whether
these spaces contemplated in sub-section (2) of Section 38,
which has referred to "all open spaces” for the purpose of
ventilation or recreation would cover the Amenities and Public
Utility, and I am of the view that it would, as a bare look at
Section 24, which provide for the matters to be provided in the
Housing Scheme by Clause (j) as reference of Parks, Playing
Fields and Open Spaces, which are for the benefit of the area
comprised in the scheme and the enlargement of existing
Parks, Playing Fields, Open Spaces and Approaches and
therefore, sub-section (2) would definitely cover Public
Utilities and Amenities.
However, the argument of Mr. Sen that it is automatic
vesting, which is akin to the statutory vesting of the land on
the Local Authority as soon as the scheme is complete, suffers
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from incongruity, as Sub-section (2) provide that on
completion of the Housing Scheme, the open spaces shall be
transferred to the Local Authority, by Resolution of the Board
and the words "shall thereupon" will have to be assigned its
due meaning, as the vesting of the land in the Local Authority
is preceded by a condition of passing of Resolution by the
Board, but in the present case, there is no Resolution passed
by the Board ever. It is after a lapse of almost 60 years, the
Corporation is coming forward claiming its right over the
Utility and Amenity Plots, which continued to be owned jointly
by the 14 Societies, since the date of the Indenture i.e.
Common Plot Conveyance as well as the Individual Plot
Conveyance.
In fact, 8 Purchase Notices were issued by the Defendant
No.17 in respect of 8 common plots calling upon the MCGM to
take necessary action to complete the acquisition of the plots
under the MRTP Act. Pursuant to the Purchase Notices,
acquisition proceedings were commenced by the Additional
Commissioner, who issued Notification under Section 6 of the
Land Acquisition Act, 1894 read with Section 126 (4) of the
MRTP Act, but all of a sudden, in the year 2016, it was learnt
by the societies that the acquisition proceedings were
suspended as MCGM is of the opinion that the common plots
did not vest in the co-owner societies, as they were only
tenants and could not claim ownership thereof.
36. Turning my attention to the objection raised by Mr. Sen
that the common plots conveyances is 'void ab initio' as no
transfer of property can be legally made under Section 6(h) of
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the Transfer of Property Act, for unlawful object or
consideration within the meaning of Section 23 of the Contract
Act. It is apposite to reproduce the provisions :-
"Section 23. What considerations and objects are lawful, and what
not.—
The consideration or object of an agreement is lawful, unless—
it is forbidden by law; or is of such a nature that, if permitted, it
would defeat the provisions of any law;
or is fraudulent ; or
involves or implies injury to the person or property of another; or
the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement
is said to be unlawful. Every agreement of which the object or
consideration is unlawful, is void."
37. Section 6(h) of the Transfer of Property Act reads as
below :-
"6. What may be transferred.—
Property of any kind may be transferred, except as otherwise
provided by this Act or by any other law for the time being in force.
(a) …
(b) …
…
(h) No transfer can be made (1) in so far as it is opposed to the
nature of the interest affected thereby, or (2) for an unlawful object
or consideration within the meaning of section 23 of the Indian
Contract Act, 1872 (IX of 1872), or (3) to a person legally
disqualified to be transferee."
38. A conjoint reading of the above would lead to a legal
position, that no immovable property can be conveyed to a
person for an unlawful object or consideration within the
meaning of Section 23 of the Indian Contract Act.
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What considerations and objects are not lawful or they
are illegal is set out in Section 23, which stipulate that the
consideration or object of an agreement is lawful unless, it is
forbidden by law or it is of such a nature that if permitted, it
would defeat the provisions of any law.
It is an argument advanced on behalf of MCGM that the
conveyance is a void document, as it amount to defeating the
statutorily vested right in MCGM under the Unamended Sub-
section (2) of Section 38 of the Bombay Board Act. The sequel
of which is projected that the Plaintiff and all other members
of the societies of Defendant No.17 - Association would derive
no right, title and/or interest in the amenity plots sought to be
conveyed under the conveyance, as the Bombay Board could
not have conveyed the plots, which it sought to be conveyed to
the societies under the conveyance and therefore, it is a void
document. Mr. Sen has also urged that whether any
consideration has been paid or not, is not a relevant test to
remove its voidness, as a void conveyance would not be
validated on this count.
39. In order to bolster the aforesaid submission, Mr. Sen is
relying upon the decision of the Apex Court in the case of G. T.
Girish Vs. Y. Subba Raju (Dead) by Legal Representatives &
2
Anr. .
I must, therefore, indulge with this decision, which has
held that a contract, which is expressly or impliedly prohibited
by a Statute, or is violative of Section 23 of the Contract Act, in
any other way, cannot be enforced by a Court.
2 (2022) 12 SCC 321
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The facts involved indicate that the Bangalore
Development Authority (BDA) entered into a Lease Cum Sale
Agreement with the Defendant, who was put in possession.
This Defendant entered into an agreement with the Plaintiff
agreeing to execute the Sale Deed within three months from
the date on which the Plaintiff obtained the Sale Deed from
BDA.
The Plaintiff issued letters to the First Defendant calling
upon her to execute the Sale Deed, but the Defendant
responded by intimating the Plaintiff that it was in breach and
the Agreement itself had lapsed and the advance amount by
the Plaintiff was forfeited. The Plaintiff instituted a Suit
seeking specific performance and the Trial Court declined to
grant relief of specific performance and instead, directed
return of Rs.50,000/- with 9 % interest. The High Court
however, recording that entire sale consideration was paid by
the Plaintiff to the First Defendant and nothing remained to be
done thereafter, found that the Second Defendant was not
bonafide purchaser for value without notice, decreed the Suit
by directing the First Defendant (her heirs) and the Second
Defendant to jointly convey the Plaint Schedule Property to
the Plaintiff.
While arguing on behalf of the Appellant before the
Hon'ble Apex Court, the prohibition against the alienation of
the site or the Plaint Schedule Property for a period of 10 years
under the City of Bangalore Improvement (Allotment of Sites)
Rules, 1972 and in particular, Rule 18 (2) imposing an
embargo against alienation for a period of 10 years was
pressed into service. Since this was a condition clearly
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stipulated in the Lease Cum Sale Agreement entered into
between BDA and the First Defendant, it was urged that the
Court could not have granted specific performance unless
there was compliance of the conditions contained in the
agreement.
40. The Hon'ble Apex Court by referring to the City of
Bangalore Improvement Act, 1945 and the Rules framed
thereunder, which determined the principles for selection of
Applicants for allotment of site and the conditions of allotment
and sale of site, by referring to the restrictions, conditions and
limitations on sale of site contained in Rule 18, concluded that
the agreement executed by BDA related to allotment of public
property and the allottee was to be a lessee, who was to pay
rent, as per Rule 7. On making reference to the statutory Lease
cum Sale Agreement, referred to Rule 18(1), it is held that the
allottee begins its innings as a lessee and the terms of the lease
are set out in the Rules and he is obliged to observe the
conditions of Lease cum Sale Agreement and is forbidden from
alienating the site or the building that may be constructed
during the period of tenancy, the period of tenancy being fixed
as 10 years from the date of giving possession to the allottee.
Thus, an allottee, who entered into a Lease cum Sale
Agreement is prohibited from alienating the site or the
building, which may be put up for a period of 10 years.
It is in this background, Their Lordships were confronted
with the issue of conditional decree of specific performance.
Reference was made to the decision of the Privy Council in
3
Motilal & Ors. Vs. Nanhelal & Anr. , where it was categorically
3 A.I.R. 1930 Privy Council 287
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ruled that in an agreement, wherein the vendor agrees to
convey property, which is permissible only with the
permission of some Authorities, the Court can in appropriate
cases grant relief.
After referring to several Authoritative Pronouncements,
dealing with the suit for specific performance, it was conclusively
held that whatever may be the intention of the parties, a contract
which is expressly or impliedly prohibited by a Statute, may not
be enforced by the Court.
41. While dealing with the question as to whether the
agreement in question falls foul of Section 23 of the Contract Act,
note was taken of the Three Bench decision in Gherulal Parekh
4
Vs. Mahadeodas Maiya & Ors. ,which recorded as under :-
"8. .... 'act or undertaking is equally forbidden by law whether it
violates a prohibitory enactment of the legislature or a principle of
unwritten law. But in India, where the criminal law is codified, acts
forbidden by law seem practically to consist of acts punishable
under the Penal Code and of acts prohibited by special legislation, or
by regulations or orders made under authority derived from the
legislature."
42. Pertinent observation on which Mr. Sen, would focus is
reproduced below :-
"102. A contract may expressly or impliedly, be prohibited by
provisions of a law. The intentions of the parties do not salvage such
a contract. [See Sobhag Singh V. Jai Singh]. What is involved in this
case, may not be a mere case of a conditional decree for specific
performance being granted as was the case in the line of decisions
commencing with Motilal (supra) and ending with Ferrodous
Estates (supra). The Rules contemplate a definite scheme. Land,
which is acquired by the Public Authority, is meant to be utilised for
the particular purpose. The object of the law is to invite applications
from eligible persons, who are to be selected by a Committee and
the sites are allotted to those eligible persons, so that the chosen
ones are enabled to put up structures, which are meant to be
residential houses."
4 AIR 1959 SC 781
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By referring to the Rules and the Lease cum Sale
Agreement, it was concluded that a sale of a site to any other
person clearly, stood prohibited in Rule 18(3), unless the
allottee / lessee is compelled to sell. In the circumstances,
provided therein and therefore, if the Plaintiff wanted to
enforce the agreement for sale of the site on an immediate
basis, it would clearly attract the embargo, as it was
completely prohibited. A perusal of the aforesaid decision
would lead to an obvious conclusion that the dealing by the
First Defendant, was in the teeth of the embargo, was a case
contemplated under Section 23 of the Indian Contract Act, as
there was clear violation of a Statute and if the transfer was
made defeating the statutory right, relief of specific
performance shall be refused, as such, transfer need not be set
aside, as no person can transfer any property pursuant to such
void agreement.
43. The above decision is rightly distinguished by Mr.
Devitre and this distinction is categorically noted, being that it
was a case of where ex-facie the transaction was illegal, as it
was expressly forbidden by the Rules, which prescribed that
any contravention would render the transaction null and void
ab initio. The Apex Court held that the illegality perpetrated by
the parties was, that executory agreement for sale was an
attempt to transfer the land allotted under the Statute within a
period of 10 years and the transaction was without the
obligation to construct a residential building on such a land
and this was inconsistent with the object of the Statute and it
was forbidden by law.
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However, in the present case, the ratio in case of G. T.
Girish (supra) is not attracted, as there is no prohibition for
transfer of common plots to the Housing Societies and rather,
it was transferred with prior approval and necessary
directions being sought from the Government, which
continued to remain in force and binding even at the time of
the completion of the scheme and thereafter.
The object of Bombay Housing Board Act, 1948 was to
take measures to implement schemes necessary for Housing
and the object of the satisfying the need of the Housing
Accommodation was intended to be served by establishing a
Board, which was empowered to take necessary measures for
giving effect to the object of the Statute The State Government
itself had entrusted to the Board the task offraming and
execution of JVPD Scheme, after the Government had
acquired the land for Housing Schemes to be allotted to the Co-
operative Housing Societies, who had agreed to pay the cost of
acquisition and development of land. The land vested in the
Board, with a view to provide Housing Accommodation and the
action of the Government / Board in transferring the common
plots to the societies was in furtherance of the object of the
Statute of providing Housing, with the scope of the scheme
clearly highlighted in the Indenture, as well as approved by the
Government of Bombay, by specifically approving the final
layout of the scheme and the allotment of building plots to the
individual society and also for the distribution of the areas
occupied by Roads, Canalization, Creek and Common
Amenities and Public Utility Plots to the societies located at
the left bank or right bank of Irla Nala.
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44. Mr. Sen has also placed reliance upon the two other
decisions, one from Calcutta High Court in case of Pranballav
5
Saha & Anr. Vs. Tulsibala Dassi & Anr. and a decision of
Allahabad High Court in case of Ghumna & Anr. Vs. Ram
6
Chandra Rao & Anr. , which have focused on Section 23 of the
Indian Contract Act by highlighting the consequences of an act /
action entered into for immoral purpose.
In Pranballav Saha (supra), the plaintiffs, the executors
and Trustees of the Will of one Ranubala Dassi, who died leaving
the suit premises at Calcutta, as an asset, obtained the probate
of the Will and since the premises were let out by Ranubala
Dassi to the Defendant for running a Brothel for carrying out
prostitution, sought her eviction, as it was pleaded that they
want the premises to administer the Trust imposed by the Will
of setting up a Charitable Dispensary.
The Plaintiff raised proverbial defence that a property left
for immoral purpose is irrecoverable in the Court of Law though
the Defendant denied the charge of running a brothel and staked
a claim that she was residing with her family and children.
The Trial Judge found the Plaintiff's case for letting for
immoral purpose not proved and even if immoral letting was
proved, Plaintiff could not recover possession by relying upon
the decision in Ayerst Vrs. Jenkins (1) Law Report 16 Equity .
The learned Judge extended the doctrine not only to the original
parties guilty of immorality, but also to the Trustees and
Executors under the Will.
A Division Bench on merits set aside the findings of the
Trial Judge and held that the premises were let out to the
Defendant for the purpose of running a brothel.
5 AIR 1958 Calcutta 713
6 1925 Allahabad 437
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Dealing with the question of law as to what are the legal
implications in the facts of the case and whether the Court
should grant relief, reference was made to Section 6(h) (2) of
the Transfer of Property Act and Section 23 of the Indian
Contract Act and Shri Justice P. B. Mukharji (As His Lordship
Then Was) held in Para Nos.21 and 22 as under :-
"21. The effect, therefore, of Section 6(h)(2) of the Transfer of
Property Act is, when applied to the facts of this case relating to
immorality, that no transfer of this property has taken place in law
because the object or consideration is immoral. Therefore, it follows
from the plain construction of the statute that a transfer of
property for immoral consideration or purpose is no transfer in law
and it does not succeed in transferring the property to such a
transferee. No estate passes under such an attempt at transfer. The
point then is that if a transferor transfers the property for the
immoral object of prostitution the law regards it as no transfer. In
other words, if a person lets out a house for the purpose of
prostitution, the apparent lessee is not a lessee at all in law and the
lessor has not parted with the leasehold interest in the estate.
Where then does the property remain? It ought in plain
commonsense and on obvious principles of conveyancing, to remain
where it was, namely, with the owner. When the law says in Section
6(h)(2) of the Transfer of Property Act that no transfer can be
made for an immoral object or immoral consideration, the owner
cannot divest himself of ownership by disregarding the law.
22. The reason why ordinarily a person who has himself been a
party to the immoral purpose or consideration is not allowed relief
in Court is not because the transfer for immoral purpose is good, but
because a person participating in immorality is not assisted by the
court to take the help of law to enforce his rights. It is a bar on his
right of recovery with the aid of court and not a legal sanction to
transfer in breach of Statute. It has been put, explained, expounded
and formulated in diverse ways. Behind the numerous justifications
for this rule the one underlying recurring reason is not that what
the law says to be void is not void, but that the court does not allow
its own procedure to be used by one who has himself been a party to
the immoral purpose of consideration."
45. The doctrine that the Court does not grant relief to a
person, who is in pari delicto or particeps criminis was opined
to have been extended beyond its rational and legitimate limits
and Justice Mukharji concluded that the Plaintiffs, Executors
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and Trustees are not in pari delicto or particeps criminis,
either literally or metamorphically and they are not so either
by any propriety devolution because Section 6(h)(2) of the
Transfer of Property Act says no transfer of property at all can
take place for immoral purpose. By referring to various
Authoritative Pronouncements, where the object was to
achieve immoral purpose, distinction was drawn on the Indian
Front from the law holding the field in England. However, I
need not delve deeper into the said aspect, as in the present
case, there is no question of any immorality.
46. Justice Bachawat, another Judge, who wrote a separate
concurring opinion, approached the issue with the slightly
different angle, when he noticed that the Plaintiffs did not
serve upon the Defendants notice to quit, as it was pleaded by
them that it is not necessary, as the lease was for the purpose
of running a brothel and if it is proved that the lease is in
contravention of Section 6(h)(2) of the Transfer of Property
Act, then it is void and not voidable and the Plaintiffs may
ignore the lease and entitled for possession as a matter of
right.
Justice Bachawat then proceeded to discuss the scope of
the Rule of Public Policy, which deny the relief particeps
criminis and traced the English Law on the point, which was
7
set out in the Classical Judgment in Holman Vs. Johnson ,
where the principle of the Public Policy was stated as; ‘ex dolo
malo non oritur actio - No’ i.e. no Court will lend its aid to a
man, who found his cause of action upon an immoral or illegal
act.
7 (20)(1775) 1 Cowp 341
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It is in furtherance of this principle, it was held that the
Courts will not allow the particeps criminis to recover money
paid on illegal contract, which cannot be enforced, either at
law or in equity.
If the transfer itself is prohibited by Statute, the transfer
is void and the title to the property does not pass is the ratio
flowing from the observation of Shri Justice Bachawat. After
discussing the position under English Law, the effect of
illegality on contract and rights of property and the claim for
relief by particeps criminis was highlighted by referring to
three-fold dimension viz; 1] Our Statute Law particularly the
Indian Contract Act, the Transfer of Property Act and the
Specific Relief Act; 2] Rules of English Law 3]; our Judicial
decisions. It is in this background with reference to the
Contract Act and the following observation, in particular, is
relied upon by Mr. Sen;
“101. Section 6(h) Clause 2 of the Transfer of Property Act
has no counterpart in English law. Under that law a transfer
pursuant to an illegal agreement or for an illegal purpose is valid at
law. Ayerst v. Jankins (1) 16 Eq. 275, lays down the principles upon
which a Court of Equity may or may not set aside a transfer so valid
at law and made by a transferor for an illegal purpose of his own. In
our system of law a transfer for an unlawful object or purpose in
contravention of Section 6(h) clause 2 of the Transfer of Property
Act is a nullity and need not be set aside. The case of Ayerst v.
Jankins (1) 16 Eq. 275, has no application to a case where the
transfer is void and a suit for recovery of possession of the property
is brought either by the transferor on the strength of his original
title or by the transferee claiming title on the basis of the transfer.
The assumptions and rulings to the contrary in Daivanayaga v.
Muthu Reddi (2) 44 Mad. 329 and Sabava v. Yamanapva (41) A.IR.
1933 Bom. 209 are erroneous and those rulings ought not to be
followed on this point.
102. The transferee does not acquire any title under a transfer in
contravention of Section 6(h) Clause 2 of the Transfer of Property
Act and cannot recover possession of the property on the strength
of such transfer."
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47. Relying upon the aforesaid observation, that in Indian
Law, a transfer for an unlawful object or consideration within
the meaning of Section 23 of the Indian Contract Act i.e.
prohibited by Section 6(h)(2) of the Transfer of Property Act
and such transfer is void, Mr. Sen has suggested, that when an
instrument is void on account of illegality not appearing on the
face of it and the transaction is such that it cannot stand on
the ground of public policy, the Court will decree its
cancellation. He would further rely upon the ratio of the
decision, that the transferer need not file suit for cancellation
of the void instrument or transfer, but if he does so, the Court
has discretionary power to grant him relief under Sections 31
to 41 of the Specific Relief Act, and Mr. Sen has argued that no
question of limitation arises, since the Defendant No.1 was not
to challenge the alleged statutory violation.
48. On somewhat similar lines, Mr. Sen has relied upon the
decision of Allahabad High Court where the Plaintiff's claim
that the Deed of Gift had been obtained by fraud and it was
void, as being for an immoral and an illegal consideration.
The District Judge found that the Donar made a gift of
property to husband and wife on the condition that they
should have physical enjoyment of the latter and the High
Court recording that the consideration of the transfer was the
future illicit connection between Donar and Musammat
Prabhawati and such an agreement was obviously worked
immorally and opposed to the Public Policy within the meaning
of Section 23 of the Indian Contract Act and hence, it was
altogether unlawful. It was held that the Deed was not only
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voidable, but absolutely void from the very beginning and it
was even not necessary for Ramakant to have it avoided by the
suit and he could have merely ignored it.
49. The aforesaid two decisions relied upon by Mr. Sen, are
clearly founded on distinct proposition of law, where the
Calcutta High Court noting that the object and consideration of
the agreement by which property was let out for running a
brothel for an immoral purpose and therefore, void under
Section 23 of the Contract Act. Similarly, the Allahabad High
Court also recorded a finding on the facts placed before it that
a Gift by a third party to a husband and his wife, the
consideration for which was maintenance of the immoral
relations between the Donar and the wife was held to be
immoral and opposed to Public Policy. Hence, void ab initio.
Another decision on which reliance is placed, i.e. in case
8
of Ishtak Vs. Ranchod Zipru Bhate , which declared that the
agreement in question to be void because the Gift Deeds in
question referred to previous agreement to make a Gift in
consideration of past illicit cohabitation and such
consideration was found to be immoral and unlawful.
50. The principles laid down in the aforesaid Judgments in
no case, can be applied to the facts of the present case, as there
was no prohibition in transferring the lands to the Housing
Societies, particularly, when it was to accomplish the object of
Housing and it was only upon obtaining necessary permission
and approval of the plans by the Government, when none of
the approvals or sanctions have been ever challenged by the
8 ILR 1947 Bom.206
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Board or by the Defendant No.1, by no stretch of imagination,
the conveyance of the open plots in the form of Amenities or
Utilities can be termed to be "forbidden" by any law. The
principle of 'particeps criminis' and 'in pari delicto' are also
not applicable in the present case, as it necessary to convey 'a
partner in crime'; and 'accomplice' or 'accessory'.
It is completely incorrect to say that the Government of
Bombay, Bombay Housing Board and the Co-owners Societies
colluded or particeps criminis, in order to defeat the
provisions of law and hence, forbidden by law.
51. Section 23 of the Contract Act, 1872 clearly convey that
the consideration or object of an agreement is lawful unless it
is forbidden by law or it is of such nature that would defeat the
provisions of any law or is fraudulent or involves or implies
injury to the person or property of another or the Court regard
it as immoral or opposed to public policy.
There are three well settled principles by the application
of which the enforceability or otherwise of a contract should be
determined, these are :
(i) A contract is void if its purpose is the commission of an
illegal act;
(ii) A contract which is expressly or impliedly prohibited
by law; and
(iii) A contract whose performance is not possible without
disobedience to law.
52. The principle underlying in Section 23 of the Contract
Act would come into force, where the agreement is executed
for an illegal purpose or it aims to defeat a Statue, and where
the 'object' and 'consideration' must be unlawful. However,
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merely because the open spaces have been vested in the
societies by executing common conveyance as well as
individual conveyance, and the Board completely faltering to
hand over the possession to the Corporation, who also
remained in slumber for almost 60 years, would not be
stamped with an illegal purpose designed to deprive its vesting
in the MCGM by the Government or the Bombay Housing
Board. Under Section 23 of the Contract Act, 1872, an
agreement is void only when its 'object or consideration is
unlawful', but this is not the situation here.
The MCGM / Defendant No.1 is raising cloud over the
conveyance only on the basis that the open plots statutorily
should have vested in it, once the scheme is complete,
unmindful of the fact that it is not a deemed vesting, but
contemplated an action on the part of Board to have passed a
Resolution and if the Board has failed to adhere to this
procedure, then definitely, the intention of the Statute was not
to have the effect of a deemed vesting. It is trite position in law
that Statute prescribed a particular mechanism to be followed,
right / liabilities flowing therefrom shall accrue only upon
completion of those requirements and if not, then no rights or
liabilities shall accrue or fall upon the party.
Worth it to note that this very provision was substituted by
effecting an Amendment in the year 1964, when an option was
given to the Board to transfer open space to the Local Authority
on completion of the scheme by diluting the mandatory
requirement contained in the Original Act of 1948. It is thus,
evident that after the Amendment, an option is given to the
Board to transfer such open space to the Local Authorities
concerned on completion of the scheme and thereupon, such
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open space shall vest in and be maintained at the expense of the
Local Authority.
Above Amendment in the Board Act, 1948 clearly indicate
that the Legislation intended to vest the open plots / open space
in the Local Authority, provided the Board passed a Resolution to
that effect. However, by amending the Statute, it made it optional
for the Board to pass a Resolution thereupon, the open spaces
would vest in the Local Authority.
53. The shift in the approach adopted by the Legislation,
make it obvious that the original sub-section (2) was never
intended to have the effect of the transaction itself being
rendered void, as it is seen that the conveyance in favour of
the 14 societies, was also in respect of those plots where the
buildings are constructed for Housing purpose and it was
coupled with certain other plots in the form of Amenities and
Utilities, Public Streets, which were coupled with the vesting of
the former.
The void act / transaction is the one, which is only
without jurisdiction, ab initio void i.e. void at the inception and
for avoiding the same, no declaration is necessary.
In Dhurandhar Prasad Singh Vs. Jai Prakash University
9
& Ors. , the Hon'ble Supreme Court has drawn a distinction in
a void act and a voidable act, by declaring as under :-
"Thus the expressions void and voidable have been subject matter of
consideration on innumerable occasions by courts. The expression
void has several facets. One type of void acts, transactions, decrees
are those which are wholly without jurisdiction, ab initio void and
for avoiding the same no declaration is necessary, law does not take
any notice of the same and it can be disregarded in collateral
proceeding or otherwise. The other type of void act, e.g., may be
transaction against a minor without being represented by a next
friend. Such a transaction is good transaction against the whole
9 2001(6) SCC 534
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world. So far the minor is concerned, if he decides to avoid the same
and succeeds in avoiding it by taking recourse to appropriate
proceeding the transaction becomes void from the very beginning.
Another type of void act may be which is not a nullity but for
avoiding the same a declaration has to be made. Voidable act is that
which is a good act unless avoided, e.g., if a suit is filed for a
declaration that a document is fraudulent and/or forged and
fabricated, it is voidable as apparent state of affairs is real state of
affairs and a party who alleges otherwise is obliged to prove it. If it
is proved that the document is forged and fabricated and a
declaration to that effect is given a transaction becomes void from
the very beginning. There may be a voidable transaction which is
required to be set aside and the same is avoided from the day it is so
set aside and not any day prior to it. In cases, where legal effect of a
document cannot be taken away without setting aside the same, it
cannot be treated to be void but would be obviously voidable."
54. The two distinct types of invalidity though belong to the
same genus would differ in species, as in the one invalidity is
so obvious and grave that it would amount to a nullity and
there is no way out, it is automatically null and void. The other
kind is when it is not void altogether, but it is voidable and it
stands, unless it is set aside.
This principle is equally applicable to ‘void’ and ‘voidable’
contract, as a question that would arise is whether in case of
concluded transfer of title, where the attempt is to divest a
party of its title or its ownership as unless and until, the
invalidity goes to the root of the contract, a party may not be
divested, as the law provides avenues for rescinding or setting
aside such instrument or for declaring it to be validly avoided
under the Specific Relief Act in appropriate proceedings.
Admittedly, MCGM has not resorted to any such proceedings.
55. In this aforesaid background, when the conveyance of
1960 is carefully read, it is evidently clear that its prime object
was effective and expedient completion of the Housing Scheme
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on the terms sanctioned by the Government of Bombay, being
implemented under the Bombay Housing Board Act, 1948 and
the object of this conveyance / contract cannot be said to be
illegal or unlawful merely because under sub-section (2) of
Section 38 of the Act of 1948, the land in the form of open
spaces was not transferred to MCGM. The genesis of the
Housing Scheme was the acquisition of different parcels of
land in the form of plots at the instance and for the benefit of
14 societies and the societies parted with the consideration in
lieu thereof, as the Government of Bombay assured effective
and successful implementation of the Housing Scheme by
acquisition of the plots for the societies and agreed to transfer
the plots to them, as sanctioned and approved by the
Government, all acts being discharged pursuant to the
authority and powers granted under the Act of 1948.
56. For the above, I have no hesitation in holding that the
object and consideration of the conveyance was to provide
affordable Housing to the societies, for a consideration that
came from these societies and there is no illegality either in
object or consideration, as the object of the entire arrangement
was to implement the Housing Scheme. Between 1949 to 1956,
the Board specifically obtained sanctions, approvals and
directions of the Government of Bombay to the Housing
Scheme and also obtained approval for transferring and
conveying of the common plots to the co-owner societies.
Government of Bombay had clearly declared that it was
expedient to make provision with a a view to provide Housing
Accommodation and to the Improvement and Development of
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the said lands and it categorically specified the laying out and
Development of the said lands including the common plots,
when it declared that they should be joint and exclusive
property of the 14 co-owner – societies and be transferred to
them. Worth it to note that from time to time, this
arrangement received approval from the Government of
Bombay, as the Resolution dated 15/03/1949 where the
Government of Bombay exercised the power conferred by
Section 24(p) of the Bombay Housing Board Act made it clear
that it had resolved to make provision with a view to provide
Housing Accommodation and to improve and develop the lands
for the purpose of allotment to Co-operative Housing Societies.
Government of Bombay also sanctioned the scheme by
its order dated 14/05/1951 and on 31/07/1952 conveyed the
approval to the decision of Advisory Committee of JVPDS that
the common plots earmarked for shops, playgrounds, etc.
should be the joint and exclusive property of the societies.
Apart from this on 01/06/1955, the Government of Bombay
approved the demarcation of the final layout of the scheme,
which included the common plots.
The above sanctions, approvals and directions were
aimed at effective, expeditious successful implementation of
the Housing Scheme in favour of the societies for whom, the
lands have been acquired and the Government and the Board
were authorized under the Act of 1948 to take steps to
implement the scheme.
57. Under the Bombay Housing Board Act, there is no
prohibition, express or implied on a sale of open plots to the
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Housing Societies for whom the lands were acquired and for
whose benefit, the Housing Scheme was approved / sanctioned
and implemented. The necessary approvals and sanctions
were obtained from the Government of Bombay before
completion of the scheme and definitely, it shall bind all those
concerned including the Board. By no stretch of imagination, it
can be said that the conveyance intended to defeat any rights
of Defendant No.1, who now claims to be the owner of the open
spaces, without exercise being carried out by the Board under
sub-section (2) of Section 38 of the Act, 1948. The Board was
authorized to sell, transfer or otherwise dispose of any land in
Housing Scheme so long as it was for effective implementation
of the scheme and development of the lands comprised in the
approved scheme as Section 24(g) and (p) clearly permitted
that a Housing Scheme shall permit the sale, letting or
exchange of any property comprised in the scheme or
undertake any other act, which the Government deems it
appropriate to complete the Housing Scheme.
In the wake of above, I do not find merit in the
submission of Mr. Sen that the object for consideration of 1960
common plots conveyance defeated the provisions of the
Unamended Section 38(2) of Bombay Housing Board Act, 1948
and hence, I reject the said contention.
58. Having held that 1960 Conveyance is not unlawful and
void as attempted to be canvassed, under Section 23 of the
Contract Act and therefore, the transfer being hit by Section
6(h) of the Transfer of Property Act, 1882 being effected for an
unlawful object or consideration, I shall now deal with the
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scope and ambit of Originating Summons, which seek
determination on three points in the factual background,
which I have already referred to as above.
The Plaintiff and the Defendant Nos.4 to 16 claiming to
be the absolute owners of plots of lands situated in Juhu,
Mumbai vide 14 separate Deeds of Conveyances executed in
favour of each of it, claimed that the Bombay Housing Board
had conveyed the distinct plots of land respectively for
Housing to the societies. It is also stated that by a separate
duly Registered Deed of Conveyance dated 24/04/1960, the
Board had transferred and conveyed absolutely certain
common plots i.e. Utility and Amenity Plots as a part of JVPD
Scheme to the 14 societies as "Tenants in Common" i.e. as co-
owners to the extent of their respective proportionate shares
in the total area.
After lapse of about 60 years for the date of registered
conveyance since Defendant Nos.1 to 3 for the first time,
sought to interpret the terms of common plots conveyance and
read it to the effect that the common plots did not vest in the
14 co-owner societies and they are not the owners of the same,
but hold it only in the capacity as 'Tenants', since the common
plots conveyance, as allegedly used the term 'Tenants in
Common' and therefore, on completion of the JVPD Scheme,
the common plots vested in Defendant No.1 and the Board has
committed an illegality by conveying and transferring the
same in favour of the co-owner societies.
59. It is in this background, the Originating Summons are filed
by the Plaintiff on 27/06/2019 seeking determination of three
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questions and in order to answer these questions, it is necessary
to consider the scope of the Originating Summons under the
Bombay High Court (Original Side) Rules and since Mr. Devitre
has invoked Rule 245, which deserve reproduction :-
"R. 245. Person interested under deed etc. may apply for issue of
originating summons.- Any person claiming to be interested under
a deed, will or other written instrument, may apply for the issue of
an Originating FSummons returnable before the Judge in Chambers
for the determination of any question of construction arising under
the instrument and for a declaration of the rights of the person
interested."
60. Chapter-XVII of the Bombay High Court (Original Side)
Rules provide for Originating Summons and Rule 238 reads
thus :-
"R. 238. Who may apply for the issue of originating summons and in
respect of what matters. - The executors or administrators of a
deceased person or any of them and the trustees under any deed or
instrument or any of them, and any person claiming to be
interested in the relief sought as creditor, devisee, legatee, heir or
legal representative, or as beneficiary under the trusts of any deed
or instrument, or as claiming by assignment or otherwise under
any such creditor or other person as aforesaid, may apply for the
issue of an Originating Summons returnable before the Judge in
Chambers for such relief of the nature or kind following as may by
summons be specified and circumstances of the case may require
(that is to say), the determination, without an administration of the
estate or trust, of any of the following questions or matters. :-
(a) any question affecting the rights or interest of the person
claiming to be creditor, devisee, legatee, heir or legal representative
or beneficiary ;
(b) the ascertainment of any class of creditors, devisees, legatees,
heirs, legal representatives, beneficiaries or others;
(c) the furnishing of any particular accounts by the executors,
administrators or trustees and the vouching (when necessary) of
such accounts;
(d) the payment into Court of any moneys in the hands of the
executors, administrators or trustees;
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(e) directing the executors, administrators or trustees to do or
abstain from doing any particular act in their character as such
executors, administrators or trustees;
(f) the approval of any sale, purchase, compromise or other
transaction;
(g) the determination of any question arising in the administration
of the estate or trust.”
61. Rule 241 is another contingency stipulated when the
Vendor or Purchaser may apply for the issue of Originating
Summons and this is the provision, which Mr. Sen has placed
heavy reliance and it reads thus :-
"R. 241. Vendor or purchaser may apply for the issue of originating
summons. – A vendor or purchaser of immovable property or their
representatives respectively may, at any time or times and from
time to time, apply for the issue of an Originating Summons
returnable before the Judge in Chambers for the determination of
any questions which may arise in respect of any requisitions or
objections or any claim for compensation, or any other question
arising out of or connected with the contract, not being a question
affecting the existence or validity of the contract."
In addition to the aforesaid provisions, Rule 243 is a
provision where a Mortgagee or Mortgagor may apply for issue
of Originating Summons, whereas under Rule 244, a partner
may apply for issue of Originating Summons.
62. An Originating Summons filed in Form No.43 is signed by
the Prothonotary and Senior Master before being issued and it
need not be accompanied by any documents unless for greater
gravity or clearness of some documents are to be annexed along
with the Plaint.
Whereas Rule 258 set out the effect of order made on the
Originating Summons and it prescribe that if the Judge consider
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the matter to be fit, he may pronounce such Judgment, as the
nature of case is required and any order made by him shall be
drawn up as a Decree of the Court and as per the Rule 259, the
Judge may give any directions touching the carriage or execution
of such decree or service thereof upon persons not parties as he
may think fit.
63. It is in this scheme contained in Chapter XVII of the
Original Side Rules, I must consider whether the Plaintiff has
made out a case for determination of the questions raised in
the Plaint (Originating Summons) and whether it deserve the
determination on Point Nos.(a), (b) and (c).
The determination of the questions raised in the
Originating Summons placed before me relate to the true and
correct interpretation of the common plots conveyance,
including the correct construction of, "Tenants in Common"
used in the instrument and whether the Board is entitled to
the common plots after execution and registration of 1960
Conveyance as regards plots of Utility and Amenity in favour
of the societies.
64. The scope of the Originating Summons came up for
consideration before the Division Bench of this Court headed
by Shri M. C. Chagla, The Chief Justice in case of Mazda
Theatres Ltd. (supra).
Dealing with an Appeal against the Judgment holding
that the Originating Summons cannot be maintained in the
wake of Rule 241 of the High Court Rules, the Division Bench
took note of the essential facts. The Plaintiffs, took out the
Originating Summons, where the lessees sought proper
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construction of Clause 2(r) of the Indenture of Lease dated
21/11/1997 and summons were taken out against the lessor,
the Defendant. The parties agreed on having the clause
constructed by means of an Originating Summons and the
Plaintiff agreed to pay the cost of summons.
The question that arose for construction was whether
the Defendant was entitled to use the complementary pass
issued to him by the lessees free from liability to pay
Entertainment Duty. Under Clause 2(r), the lessees had
undertaken the obligation to give complementary pass to the
lessor and reserve one box of six seats to be used by the lessor
and his family and friends in every Show on every day. This
obligation was abided till the time, when the Government
decided to levy Entertainment Duty even on complementary
tickets. When the Entertainment Tax was amended and the
lessees became liable to pay Entertainment tax, the obligation
became a heavy one and therefore, the lessees wanted to be it
to be determined by the Court whether the Entertainment
Duty had been paid by the lessor to the lessees. This is the
question which was sought to be decided by the Court of an
Originating Summons.
It is in this background, Shri M.C.Chagla, held as under:-
"The only two conditions which are required are that there must be
a written instrument and what should be required to be done by the
Court is the declaration of the rights of the person interested under
the written instrument. In this case, there is a lease : undoubtedly it
is a written instrument, and what the plaintiffs seek is the
declaration of their rights or the declaration of the rights of the
defendant. The view that the learned Judge seems to have taken is
that this rule does not apply when on a broad construction of a
contract the question to be decided is whether there is or there is no
liability on one party or the other under the contract. Now, with
very great respect to the learned Judge, he seems to have
overlooked the fact that, if you declare a right under an instrument
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in favour of a party, it necessarily follows that there is a
corresponding liability upon someone else. If in this case the lessees
have the right not to pay the entertainment duty on the
complimentary tickets to be given to the defendant, obviously there
is a liability upon the defendant to pay the entertainment duty.
Conversely, if there is a right in the defendant to have the
complimentary tickets without paying the entertainment duty, then
there is an obligation or liability upon the plaintiffs to pay the
entertainment duty. Therefore, it is not correct to say that what the
plaintiffs wanted to determine was a declaration of liability. The
learned Judge also seems to have been under the impression that
contractual rights cannot be determined under r. 241."
Further, it was thus, concluded that the learned Judge
had not exercised the discretion conferred under Rule 242 and
if he had exercised the discretion, the matter might have been
different and as the view taken by him was that he had no
jurisdiction to entertain the Originating Summons, which view
was erroneous and thus, set aside.
As a result, the Appeal was allowed and the order of
dismissal being set aside, the Originating Summons was sent
back to trial on merits.
65. The Bombay High Court in Homi P. Ranina & Ors. Vs.
10
Eruch B. Desai & Ors. pronounced upon the scope of the
Originating Summons and Justice A. P. Shah, (As His Lordship
Then Was) and by referring to Rule 238 decided the objection
raised by the Defendant Nos.2 to 5 about the maintainability of
the summons, as it was contended that the Originating
Summons are decided outside the scope of Chapter-XVII and
the Plaintiffs are required to prove alleged custom by adducing
evidence and the Court would be required to decide
complicated questions beyond the scope and summary nature
of the Originating Summons.
10 1996(2) Bom.C.R.577
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The Pertinent observation in Law Report reads as
below :-
"In that context, Judgment delivered by Pratt, J. in (Vithaldas
Cursondas v. Dulsukhbhai Vadilal), 21 Bom. L. R. 972, is extremely
relevant. In considering the Rules, it has been observed by Pratt, J.:
"It is contended that these authorities do not apply as the Bombay
Rules are wider. There is some force in this contention for our rules
go further than the English Rules and allow a partner to take put an
originating summons and the procedure approximates more nearly
to that of a regular suit for the rules contemplate pleadings. A plaint
is required by Rule 218 and a written statement is permitted by
Rule 221.
The rules do not forbid questions of fact being determined on an
originating summons and I am not prepared to hold that this form
of action is always inappropriate whenever there is a question of
fact in dispute.
But I think it clear that an originating summons is not the proper
procedure where the disputed facts are of such complexity as to
involve a considerable amount of oral evidence. There is no
machinery for discovery and inspection and Rule 223 indicates that
the action should be confined to matters which are capable of
decision in a summary way.
10. I am in respectful agreement with the view taken by Pratt, J.
The object appears to be to decide the matters mentioned in Rule
238 by providing an effective and inexpensive remedy. Clause (g) of
the said Rule clearly empowers the Court to determine any question
arising in the administration of the estate or Trust. The only
question that is raised by the plaintiffs in this originating summons
relates to the mode of appointment of the President. The facts are
almost admitted on both sides. In my opinion, unless it is shown
that the disputed facts are of such complexity as to involve a
considerable amount of oral evidence, the jurisdiction to decide the
question of the mode of appointment of the President, application of
Rule 238 cannot be excluded on the basis of a bald plea that the
facts are disputed."
66. In a subsequent decision of the Bombay High Court in
case of Charu K. Mehta Vs. Lilavati Kirtilal Mehta Medical
11
Trust & Ors. , the purpose of Originating Summons under the
Bombay High Court (Original Side) Rules, 1980 came up for
consideration once again and in the backdrop of the Bombay
Trust Act as well as Rule 238, the scheme of Chapter-XVII
along with the procedure contemplated was considered
11 2013(3)Mh.L.J.269
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threadbare and its origin was traced to the Rules of Procedure
in England when Lindely, L. J. speaking for the Court of Appeal
in Re W. Holloway 1894 Vol. 2 QB 163 had noted as below:-
"What, then, was an "originating summons" at that time ? It was a
method of commencing proceedings in Chancery by a summons in
chambers instead of by bill. At the time when the Judicature Act was
passed there were two kinds of summonses in use, an ordinary
summons and an "originating summons", the latter being used in the
Court of Chancery in certain cases instead of a bill. The Rules of the
Supreme Court of 1875 did not affect the practice of the Chancery
Division as regarded originating summonses. The rules were re-cast in
1883, and then the term "originating summons" was for the first time
introduced into the Judicature Rules and defined. The term, however,
had not lost its original meaning. It still meant a summons which
originated proceedings in Chancery, the summons being substituted for
a writ in a suit or an action, which had by the Judicature Act taken the
place of a suit"
In other words an Originating Summons meant "only a summons by
which proceedings are commenced which must formerly have been
commenced by a bill or a writ.".
The distinction between the writ of summons and the
Originating Summons was succinctly noted and position of law
in Halsbury's Laws of England, Fourth Edition, Vol. 37 Para 130
came to be reproduced :-
"1] Proceedings in which the sole or principal question at issue is, or
is likely to be, one of construction or some questions of law;
2] Proceedings in which there is unlikely to be any substantial
dispute of fact".
The object of Rule was thus discerned to be dealing only
with procedure and to facilitate the determination of short
questions of construction, which can be examined without
Affidavit upon the instrument itself.
67. The position of this scope of an Originating Summons in
India was specifically analyzed by recording that this procedure
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does not per se forbid a determination of question of fact, but
where the dispute on facts involved a degree of complexity, it is
held that the Originating Summons would not be appropriate.
Justice B. N. Srikrishna (as the learned Judge then was)
12
in Rama Aziz Vs. Balkrishna K. Mehta , held that while
exercising jurisdiction in an Originating Summons, the Court
is not determining a lis, since it does not adjudicate upon the
rights and liabilities of the parties.
The Division Bench of Calcutta High Court in Gokul
13
Chand De Vs. Gopi Nath Dey , held that where the dispute
between the parties cannot be disposed of merely by a
construction of the Deed of Trust and where before the rights
of the parties can be decided, the Court would have to decide
the questions, such as plea of estoppel and plea of adverse
possession, which were not pure questions of law, the
procedure by way of an Originating Summons is not an
appropriate remedy.
68. The Division Bench of this Court (Coram : Dr. D. Y.
Chandrachud and A. A. Sayed, JJ.) pronounced upon the scope
of the Originating Summons and gainfully relied upon the
observations of the Division Bench in Mazda Theatres Ltd.
(supra) while it was held that the provisions in Chapter XVII
of Rules of the Original Side, which embody the procedure for
Originating Summons have to be interpreted broadly and
liberally, as the procedure envisages a summary remedy,
which is available to determine issues of construction or the
interpretation and though determination of factual issue is not
12 1993(1) Bom.C.R.267
13 AIR 1952 Calcutta 705
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barred, conventional learning in this area is that where
complexity of evidence and fact arises, the parties should be
relegated to the remedy of suit in the ordinary course.
The scope of the Originating Summons was specifically
pronounced upon in the following words :
"21. The jurisprudential origin of the procedure envisaged in
an Originating Summons has been traced by us in order to shed
light on how the procedure has evolved, the rationale for its
existence and the limitations subject to which the procedure has to
be applied. History and, for judges precedent, are illuminating
sources of learning. The institution of proceedings through an
Originating Summons was considered as a simple and efficacious
procedure that would be applied in the resolution of simple and
straightforward issues of construction and interpretation. Though
the ambit of the issues that could be decided in an Originating
Summons came to be expanded over time, the principle underlying
the invocation of the procedure remained relatively constant.
22. The rules in regard to Originating Summons indicate that this
was a simple and expeditious procedure of initiating proceedings by
applying for the issuance of an Originating Summons before the
Judge in Chambers. The persons at whose behest an Originating
Summons could be issued and the nature of the relief that could be
granted are specified in the rules. A summary procedure is
envisaged. But the summons remains a species of the original civil
jurisdiction in a suit, commencing with a plaint under Rule 248 and
ending with the pronouncement of a judgment and the drawing up
of a decree under Rule 259. The judge is empowered to issue
directions for the carriage and execution of the decree (Rule 260).
Since the procedure envisaged is summary, the Judge retains
control over the proceedings and has the discretion as to whether
an Originating Summons should be entertained. Once accepted, the
plaint is numbered as an ordinary suit with the letters O.S."
69. An insightful reading of the provisions included in
Chapter-XVII of the Bombay High Court (Original Side) Rules
and the evolution of law on the same would make it evident that
the institution of proceedings through an Originating Summons
is considered as a simple and efficacious procedure that would
be applied in resolution of simple and straightforward issues of
construction and interpretation. This is remedy provided in the
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form of expeditious procedure before the Judge in Chamber
and, which contemplate a summary procedure to be followed.
With the summons remaining the species of the Original
Civil Jurisdiction in a suit, commencing with a Plaint under
Rule 248 and ultimately resulting in drawing up a decree on
pronouncement of Judgment, which is envisaged under Rule
259, the Judge is empowered to issue directions for the
execution of the decree and it is a discretionary relief, the
Judge being vested with the discretion whether the Originating
Summons should be entertained.
In other words, Originating Summons has been regarded
as an appropriate remedy where a question of interpretation
arise, that does not involve appreciation of evidence or
determination of dispute of factual matter of some complexity.
The Rules confer a wholesome discretion on the Court whether
a question of construction should, or should not be determined
on an Originating Summons and Rule 246 has made it apparent
that the Court is not bound to determine such a question, if it is
of the opinion that it not to be determined.
As has been clearly held in case of Charu K. Mehta
(supra) that the provisions in Chapter-XVII of the Rules of the
Bombay High Court Original Side, provide the procedure for an
Originating Summons, which must receive broad and liberal
interpretation. What is required to be looked into while
entertaining the reliefs prayed in an Originating Summons
having clearly set out in Mazda Theatres Ltd. (supra), and the
only two things are kept in mind, the first being in existence of
written instrument and the second being the declaration of the
rights of the person interested under the written instrument.
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70. Coming to the case in hand, the Defendant No.1 had
placed reliance upon Rule 241 of the Bombay High Court
(Original Side) Rules to contend that this Court has no
jurisdiction to determine the validity or legality of the contract
/ instrument. However, reliance upon the Rule 241 is in my
considered opinion entirely misplaced, as Chapter-XVII has
contemplated various situations, when the remedy of
Originating Summons can be invoked and Rule 241 is one such
contingency.
When a vendor or purchaser may apply for Originating
Summons, for determination of any questions, which may arise
in respect of any requisitions or objections or any claim for
compensation or any question arsing out of or connected with
the contract, but not being a question affecting the existence
and validity of the contract. In the present scenario, the Plaintiff
has invoked the jurisdiction of this Court, but it is not in respect
of any requisitions or objections or claim for compensation and
he is not seeking determination of a question, which would affect
the existence and validity of the contract.
Rule 241 operates in a totally different regime being of
executory contracts, including claims for specific performance
of such contract. It definitely do not cover the contracts, which
have travelled 'from the realm of contract' 'to the realm of
conveyance' i.e. a situation whether the immovable property is
already transferred and the transfer is complete in all aspects.
Reading of Rule 241, which is applicable to 'any
requisitions or objections or any claim for compensation', the
word "any other question arising out of or connected with the
contract", would definitely have to be read ejusdem generis, as
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Rule 241 is a provision pertaining to a different arena, as it
may be appropriate to determine any question arising in
respect of any requisitions or objections or claim for
compensation or any other question of the like nature arising
out of or connected with the contract. A suit for specific
performance relates to executory contracts, which a party
claims to be entitled to enforce performance by having
immovable property transferred to itself under such contract.
Where the Originating Summons is filed in such cases,
the Court cannot determine question under Rule 241, as
whether such a contract of which performance is sought exist
or valid or not. However, the scope of the distinct Rules in the
said Chapter differ in its nature and in Rules 243, 244 and
245, there is no restriction in the Court to determine all
questions, including questions relating to existence or validity
of the deed or instrument of transfer.
Rule 243 deals with instrument of the Transfer of
Property Act namely a mortgage and the relief, which may be
sought may include relief regarding "Sale, Foreclosure, ...... by
the Mortgagor" and "Redemption, re-conveyance ..... by the
Mortgagee". This relief necessary involve questions of title and
questions relating to existence and validity of instrument.
However, the invocation of Rule 245 by the Plaintiff is by a
person claiming to be interested under a Deed (Conveyance of
1960) and it is for determination of the questions of
construction arising under the said instrument and for
declaration of the rights of the Plaintiff, since what is sought to
be determined through the Originating Summons is; whether
on a true and correct construction of the registered common
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plots conveyance, the common plots are conveyed and
transferred absolutely to the co-owner societies; Whether by
reason by use of the expression "Tenants in Common", the said
instrument granted a lease of common plots to the societies
with the title still being retained by the Defendant No.3 and
whether it has any right, title or interest in the common plots
subsequent to the execution of the registered common plots
conveyanced.
The present Originating Summons thus, seek
determination in respect of all 34 common plots, 18 Amenity
Plots, and 16 Utility Plots.
In the backdrop of the clear understanding recorded by
the parties in the common conveyance as well as individual
conveyance and the intention of the parties being clearly
discerned through this conveyance, what is merely sought
through the Originating Summons is the construction /
interpretation arising under the instrument for declaration of
the rights of the Plaintiff, since there is no complex issue
involved, but what is expected from the Court is giving finality
to the terminology rules in the deed / instrument, since
contrary to the intention of the parties, the MHADA, i.e.
(earlier the Bombay Housing Board) is now attempting to
interpret the instrument in its favour to indicate that the land
was not conveyed to the societies as its owners.
Considering the scope of the Originating Summons and in
particular, Rule 245, the determination of the question Nos.A,
B and C would avoid multiple proceedings, which would be
instituted by the Plaintiff or the Defendants.
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71. Mr. Sen has also made a feeble attempt to allege that Suit
No.89/2017 is filed, which has raised identical issues. However,
on perusal of the reliefs in the suit, it is evident that it revolve
around only one of the common plots, which was reserved for
market and it revolves around a distinct cause of action,
involving the question of trespass by the Corporation upon a
permissive gratuitous basis, subject to question by Defendant
No.1 in accordance with law. However, as far as the present
proceedings are concerned, it is for determination of the
questions arising on an interpretation of 1960 Conveyance and
is not relating to trespass or acquisition and thus, filing of this
suit as well as other suits, if any for trespass is based on
distinct cause of action and would not pose any hindrance in
entertaining the present proceedings. It is informed that
another Suit No.2554/2005 was instituted by the societies for
injunction and possession of one of the common plots in the
scheme, on which a Hospital - R. C. Kupar Hospital has been set
up by the Corporation.
On arrangement being worked out with the societies and
the societies had given possession of the said plot to the
Corporation at a concessional rate, which was paid by the
Corporation. The Corporation however, attempted to dispose of
the plot to a third party, claiming to be its owner under an
alleged agreement under Sections 90 and 91 of the Municipal
Corporate Act. The Corporation claimed that the ownership of
the plot was transferred to it by a private contract and it is
informed by Mr.Devitre that this plea was negated by an order
passed by this Court in an Appeal against order and even the
Hon'ble Apex Court had declined to interfere with the said
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decision. Eventually, the suit was compromised with Defendant
No.1, inter alia agreeing to develop the Hospital on the said
common plot by itself.
72. The attempt on the part of Mr. Sen to respond to the
submission of the Plaintiff by asserting that the Plaintiff is not
only seeking interpretation of 1960 Conveyance, but it is
seeking a declaration that the Plaintiff along with other
societies are owners of all the common plots, which are subject
matter of convenience and MHADA has no right, title and
interest in them is not in my opinion on the correct
understanding of the argument of Mr.Devitre. Mr. Sen has also
attempted to suggest that in answering questions, which are
sought to be determined, it would require determination of the
issue raised by the Defendant No.1 that 1960 Conveyance is
unlawful and therefore, void.
At this stage, I must necessarily take note of the fact that
the Defendant No.1 - MCGM never raised any challenge to the
1960 Conveyance as being unlawful and void and rather, it
continued to act on it as in the past, when the Purchase Notices
were issued by 8 such societies claiming that they are the
owners, proceedings were initiated under the MRTP Act,
though it is a different matter that thereafter, the Corporation
took a U Turn and suspended the proceedings. The MCGM has
not taken any independent proceedings for the last 60 years
seeking declaration that the conveyance was void and
unlawful and it is only in response to the proceedings
instituted by the Plaintiff, it is trying to piggyback and want a
declaration to the effect that 1960 Conveyance is void.
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The arguments that the relief sought in the Originating
Summons are beyond the jurisdiction of the Court, in my view,
does not hold good as I have exhaustively dealt with the
argument of Mr. Sen about the conveyance being invalid /
unlawful, since it did not conform to Section 38(2) of the
Bombay Housing Board Act and specifically, the Unamended
provision.
The premise of Mr. Sen's argument is that the object of the
conveyance in favour of the society itself is unlawful and this
contention I have disapproved in my earlier discussion, but at
this stage, once again, I deem it appropriate to reiterate that the
object of 1960 Conveyance is to provide land to the Housing
societies for housing purpose and the intention is clearly
reflected in the Indenture dated 26/04/1960 executed between
the Bombay Housing Board constituted under the Bombay Act
LXIX of 1948 and which included its successor and assigns and
the 14 Co-operative Housing Societies including the Plaintiff
and the object of the arrangement was in conformity with
Section 24(p) of the Bombay Housing Board Act, 1948 and the
Government of Bombay by keeping in mind this object by its
Resolution dated 15/03/1949 deemed it expedient to make
provision with a view to provide Housing Accommodation and
to the Improvement and Development of the said land and for
that purpose, specified the laying out and developing the said
land.
By the said Indenture, the land vested in the Board, but
it was to be utilized for the purpose of the Housing Scheme and
when the object and consideration of the conveyance are
present and clearly highlighted in the Indenture, the
Corporation, by no stretch of imagination, can take upon itself
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and argue that since there was no compliance of sub-section
(2) of Section 38 by the Board, the conveyance is void and
quoting Mr. Sen, since the object and consideration of the
conveyance was unlawful.
This Indenture has also determined the scope of the
scheme and also fixed the consideration, when it provided that
the total cost of completing the scheme, including the cost of
earth fielding and construction of roads and Canalization, cost
payable by each society is worked out at Rs.10.00 per square
yard of the building plots to be allotted to each society,
including the proportionate cost of acquisition and
development of common Amenity and Utility Plots, Roads and
Canalization and it may make a reference for payment of
Rs.60,00,000/-, the total estimated cost being paid by the
societies.
73. The Indenture of 1960, therefore, clearly state that the
Board has conveyed in favour of the societies all that piece or
parcel of vacant plots, including the Amenity Plots, Utility
Plots, etc. in all admeasuring 6,07,036 yards described in
Third Schedule, in favour of the societies with a right
conferred, "To have and to hold", the said land, "unto and to the
use" of the said societies, forever as "Tenants in Common" in
proportion set out therein and as far as Vithalnagar Housing
Co-operative Society Ltd. is concerned, its proportion is
reflected as 0.100.
The Conveyance of 1960 being read with Schedule-I and
Schedule-II thereof clearly set out the description of the open
plots being bifurcated under Public Amenities like recreation
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ground, play ground, public hall, 60 feet road, creek, etc. and
the public utilities like shops and public buildings, municipal
office, police station, shops, fire brigade, post office, bank,
shops, schools, shops and markets, etc. The Schedule-II clearly
set out that 2,08,431 area in square yard had been transferred
to the MCGM for 100 feet and 60 feet road, whereas area of
1,40,203 has been transferred under internal roads to the
MCGM.
With this clear stipulation set out in the conveyance, the
stand of the MCGM that the conveyance is void and its validity
cannot be gone into the wake of Rule 241 of the Originating
Summons has failed to persuade me to decline the entertaining
of the Originating Summons as well as grant of reliefs therein.
74. The learned counsel Mr.Lad appearing for MHADA-
Respondent No.3, by inviting my attention to Exh.B i.e.
Indenture dated 14/10/1956 (individual conveyance) feebly
submit that consideration was paid towards buildings and not
for the amenities and the utilities and, therefore, he would
question as to how the societies can become owners? He has
invited my attention to the lists of public amenities and utilities,
which are appended as Schedule I and Schedule II to the
Conveyance and the long and short of his argument is, the
societies cannot become owners because they have not paid
consideration to acquire ownership right, but as far as common
amenities are concerned, they can use it alongwith others, but
in contrast, the claim is for ownership and as such, all 14
societies cannot claim ownership of the land.
The aforesaid argument deserve a perforce rejection, as
the recitals in the common conveyance as well as the individual
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conveyance has clearly recorded that in pursuant of the scheme
sanctioned by the Labour and Housing Department for laying
out and developing the land for the purpose of allotment to the
co-operative housing societies, the land was demarcated for
building plots, constructed roads and general amenities and
public utilities purposes to be owned in common, by
participating societies in proportion with the area of the
building plots of each societies bears to the total building area
on the two banks of Irla Nala.
Upon the total cost of completing the scheme being
worked out and the particular area being allotted to the
individual society i.e. 60,100 to Vithalnagar Co-Operative
Housing Society i.e. the Plaintiff on plot 12/1, 12/2 and 12/3
and more particularly described in Schedule III. It was
recorded that the society had paid to the Board amount of
Rs.6,01,000/-, being the proportionate cost pertaining to the
land to be allotted to the society and in lieu thereof, what was
conveyed to the society was the vacant land admeasuring
60,100 sq. yards, particular described in Schedule III with all
its appurtenances whatever belonging to it and this included,
the easements, profits, privileges etc. Schedule II appended to
Exh.B has referred to the areas on the left bank of Irla Nala
and provides the details of amenities and public utilities plots,
60 and 100 ft. road, internal roads, canalization and what was
conveyed was what was set out as a part of the said document.
Hence, the argument of Mr.Lad cannot be accepted, as even
MHADA, after its incorporation, never asserted its right over the
amenity and utility plots.
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75. Another point which ought to have focused upon is the
holding of the open plots (Amenities and Utilities as "Tenants
in Common"), but since Mr. Sen has conceded to the legal
position that the use of phraseology "Tenants in Common" in
the Conveyance of 1960 confers ownership, Mr. Devitre has
not advanced his argument on the said aspect of the matter
and therefore, he has restricted his reliefs in Originating
Summons to Clauses (a) and (c) only.
Since the Corporation without raising the challenge to
the Deed of Conveyance and transfer of the land in favour of
the societies by the Board, which act the Board indulged into
with prior permissions from the Government of Bombay, after
lapse of almost 64 years, it is not open for the Corporation to
adopt such a stand premised on its own reading of deeming of
vesting of the open lands in its favour once the scheme was
completed.
76. For the reasons offered above, the points sought for
determination in the Originating Summons are answered in
the following manner :
a] On true and correct construction of the
registered common plot conveyance (read with 14
individual building plot conveyances), it is declared that
the common plots mentioned in the conveyance (Utilities
and Amenities) are conveyed and transferred absolutely
to the co-owner societies i.e. Plaintiff and Defendant
Nos.4 to 16 as co-owners and;
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b] By use of the expression “tenants in common” in
the registered common plot conveyance (read with 14
building plot conveyances), the instrument granted
ownership in favour of the Plaintiff and the 14 societies
and the conveyance was not restricted and confined to
lease of the common plots in their favour.
c] The Defendant No.3 - MHADA has no right, title
or interest in the common plots after execution of the
registered common plot conveyance along with
individual plot conveyance in favour of the 14 societies.
[ SMT. BHARATI DANGRE, J.]
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