w w w . L a w y e r S e r v i c e s . i n



Vinobha Bhave Nagar Godavari Adhyapak Co-operative Housing Society Ltd., Through its Secretary & Another v/s Central Railway, through its Dy. Chief Engineer (G) & Others


Company & Directors' Information:- S V HOUSING PRIVATE LIMITED [Active] CIN = U70109DL2006PTC150816

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226DL1910PLC299886

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226UP1910PLC000093

Company & Directors' Information:- V G P HOUSING PRIVATE LIMITED [Active] CIN = U65922TN1972PTC006240

Company & Directors' Information:- B R HOUSING PVT LTD [Active] CIN = U45203WB1995PTC073083

Company & Directors' Information:- GODAVARI CORPORATION PRIVATE LIMITED [Active] CIN = U51900MH1946PTC022398

Company & Directors' Information:- G K S HOUSING LIMITED [Amalgamated] CIN = U45201TN1996PLC036147

Company & Directors' Information:- R. J. HOUSING PRIVATE LIMITED [Active] CIN = U45400WB2007PTC114792

Company & Directors' Information:- INDIA HOUSING LIMITED [Active] CIN = U45200PN2008PLC131883

Company & Directors' Information:- R D HOUSING PVT LTD [Active] CIN = U70101WB1996PTC081099

Company & Directors' Information:- G C HOUSING PRIVATE LIMITED [Active] CIN = U45201DL2003PTC122011

Company & Directors' Information:- J. D. HOUSING PRIVATE LIMITED [Active] CIN = U45309PN2016PTC166622

Company & Directors' Information:- A N HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400UP2008PTC035479

Company & Directors' Information:- D L HOUSING PRIVATE LIMITED [Active] CIN = U45400WB2009PTC135703

Company & Directors' Information:- G M K HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069486

Company & Directors' Information:- R G HOUSING PRIVATE LIMITED [Active] CIN = U70102UP2012PTC052735

Company & Directors' Information:- B B HOUSING PRIVATE LIMITED [Strike Off] CIN = U70109WB1997PTC084775

Company & Directors' Information:- B S R HOUSING PRIVATE LIMITED [Strike Off] CIN = U70102AP2005PTC048146

Company & Directors' Information:- M. P. HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200UP2007PTC033329

Company & Directors' Information:- OPERATIVE INDIA PRIVATE LIMITED [Active] CIN = U74300KA2008FTC048079

Company & Directors' Information:- S K J HOUSING PRIVATE LIMITED [Active] CIN = U63023WB1999PTC089993

Company & Directors' Information:- S V R HOUSING INDIA PRIVATE LIMITED [Strike Off] CIN = U45200AP2009PTC064511

Company & Directors' Information:- R K HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032252

Company & Directors' Information:- J HOUSING PRIVATE LTD [Active] CIN = U74899DL1980PTC010338

Company & Directors' Information:- K P A HOUSING PRIVATE LIMITED [Strike Off] CIN = U45201TN2005PTC055354

Company & Directors' Information:- V. D. P. HOUSING PRIVATE LIMITED [Active] CIN = U70102UP2012PTC054142

Company & Directors' Information:- G R E HOUSING PRIVATE LIMITED [Active] CIN = U70102AP2008PTC061004

Company & Directors' Information:- G M HOUSING PRIVATE LIMITED [Strike Off] CIN = U99999MH1994PTC076203

Company & Directors' Information:- BHAVE PRIVATE LIMITED [Active] CIN = U22219MH1949PTC007839

Company & Directors' Information:- K K HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200DL2012PTC232532

Company & Directors' Information:- V R HOUSING PRIVATE LIMITED [Strike Off] CIN = U45201AP1998PTC030550

Company & Directors' Information:- A. S. HOUSING PRIVATE LIMITED [Active] CIN = U45209PB2012PTC036226

Company & Directors' Information:- S. N. HOUSING PRIVATE LIMITED [Active] CIN = U45400MH2010PTC202407

Company & Directors' Information:- P & M HOUSING PRIVATE LIMITED [Active] CIN = U70102MH2012PTC229509

Company & Directors' Information:- D. H. HOUSING PRIVATE LIMITED [Active] CIN = U70102MH2012PTC237322

Company & Directors' Information:- N K HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200MH2003PTC139304

Company & Directors' Information:- NAGAR CORPORATION PRIVATE LIMITED [Active] CIN = U74900PN2013PTC148356

Company & Directors' Information:- C S R HOUSING PRIVATE LIMITED [Active] CIN = U45400TG2012PTC078681

Company & Directors' Information:- K-HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200TN2009PTC070655

Company & Directors' Information:- L R HOUSING PRIVATE LIMITED [Active] CIN = U70100TG2013PTC089981

Company & Directors' Information:- K N S HOUSING PRIVATE LIMITED [Active] CIN = U45400DL2007PTC167504

Company & Directors' Information:- R C HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032258

Company & Directors' Information:- ENGINEER & ENGINEER PRIVATE LIMITED [Active] CIN = U74999DL2016PTC293097

Company & Directors' Information:- C S ENGINEER PRIVATE LIMITED [Strike Off] CIN = U45201DL2003PTC122355

Company & Directors' Information:- W B HOUSING COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL2013PTC250413

Company & Directors' Information:- B G HOUSING PRIVATE LIMITED [Active] CIN = U70101DL2004PTC124095

Company & Directors' Information:- A K Y HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400TG2007PTC056210

Company & Directors' Information:- M K Y HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400TG2008PTC059752

Company & Directors' Information:- G M R HOUSING PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102TG2002PTC038792

Company & Directors' Information:- THE HOUSING CORPORATION LIMITED [Dissolved] CIN = U99999MH1946PLC010719

    Writ Petition (L) No. 969 of 2020

    Decided On, 03 December 2020

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA & THE HONOURABLE MR. JUSTICE MADHAV J. JAMDAR

    For the Petitioners: Amrut Joshi alongwith Pooja Batra instructed by Pratik Amin, Advocates. For the Respondents: R1, T.J. Pandian, R2, P.G. Lad alongwith Aparna Kalathil, Sayali Apte, Advocates, R4, Abhay Patki, Addl. G.P. alongwith Jyoti Chavan, AGP.



Judgment Text

S.J. Kathawalla, J.1. Rule, made returnable forthwith. Respondents waive service. Considering the issue involved in the present Petition, by consent of the parties, the same is heard finally at the stage of admission.2. The Petitioners have filed the present Petition under Article 226 of the Constitution of India challenging Respondent No. 1’s refusal to grant a No-Objection Certificate [‘NOC’] for re-development of the existing building of Petitioner No. 1, communicated by Respondent No.1 through its letters dated 30th August 2018, 17th October 2018 and 23rd April 2019 (‘Impugned Letters’).3. The Petitioners have in the above Writ Petition prayed for the following reliefs :“a. This Hon’ble Court be pleased to issue a writ of Certiorari or any other writ, order or direction in the form of Certiorari thereby calling for the records and proceedings in respect of the impugned letters dated 30th August 2018, 17th October 2018 and 23rd April 2019 (being Exhibit ‘V’, Exhibit ‘Y’ and Exhibit ‘FF’ respectively) issued by Respondent No. 1 and after perusal of the same be pleased to quash and set aside the same;b. This Hon’ble Court be pleased to issue a writ of Certiorari or any other writ, order or direction in the form of Certiorari thereby calling for the records and proceedings in respect of Respondent No. 1’s internal letters dated 30th May 2017, 9th October 2017 and 30thJuly 2018(being Exhibit ‘L’, Exhibit ‘P’ and Exhibit ‘U’ respectively) internally rejecting Petitioner No. 1’s grant of NOC, and after perusal of the same be pleased to quash and set aside the same;c. This Hon’ble Court be pleased to issue a writ of Mandamus or any other writ, order or direction in the form of Mandamus thereby directing Respondent No. 1 to issue the No-objection certificate in favour of Petitioner No. 1 for re-development of existing building on the subject land situate at Survey No. 260 to 263 and 171 to 174, bearing CTS No. 922 (Pt) at Vinobha Bhave Nagar, Kurla (west), Mumbai - 400070;d. In the alternative to prayer clauses (a), (b) and (c) above, this Hon’ble Court be pleased to direct Respondent Nos. 2 and 3 to process and sanction Petitioner No.1’s proposal for re-development without insisting on a 'No Objection Certificate' from Respondent No. 1;”4. Briefly stated, the case of the Petitioner is as under:4.1. Petitioner No. 1 is a Co-operative Housing Society Ltd. registered under the Maharashtra Co-Operative Societies Act, 1960 (the Act) on 10th October, 1994. The Petitioner No. 2 - M/s. Nisar Properties Pvt. Ltd. is a Private Limited Company incorporated under the Companies Act, 1956. Petitioner No. 1 - Society has appointed Petitioner No. 2 as the Developer to carry out the re-development of the building / property of the Petitioner No. 1 - Society.4.2. Respondent No. 1 - Central Railway is a Zonal Railway, Respondent No. 2 is Maharashtra Housing and Area Development Authority (MHADA), Respondent No. 3 is Maharashtra Housing and Area Development Board (MHADB), Respondent No. 4 is the State of Maharashtra.4.3. Respondent No. 2 - MHADA was possessed of and otherwise well and sufficiently entitled to a piece and parcel of land admeasuring 852.25 sq. mts. situate at Survey No. 260 to 263 and 171 to 174, bearing CTS No. 922 (Pt) at Vinoba bhave Nagar, Kurla (west), Mumbai-400070 [‘subject land’]. Sometime in 1993, Respondent No. 3/MHADB built a building bearing No. 55-A & B wings [‘subject building’] on the subject land under a special scheme for teachers. The allottees of tenements in the subject building are members of Petitioner No. 1.4.4. The subject building was sold by Respondent No. 2 - MHADA to Petitioner No. 1 by a sale deed dated 13th October 2010 for a consideration of Rs. 50,15,000/-. Under an indenture of lease of even date, Lease rights were also granted in favor of Petitioner No. 1, for the subject land for a period of 90 years commencing from 1st August 1993. Mutations were carried out in the revenue records accordingly.4.5. In December 2011, Petitioner No. 1 decided to re-develop the subject building, whose condition by then had deteriorated considerably. Under a registered Development Agreement, Petitioner No. 2 was appointed as the developer to carry out the re-development.4.6. Since the subject land is a part of a MHADA lay-out, Petitioner No. 1 submitted a proposal to Respondent No. 3 seeking its approval for the said redevelopment pursuant to which Respondent No. 3 issued an offer letter dated 4th December 2015 approving the proposal for re-development subject to obtaining a NOC from the Railway Authorities. This condition is included in the ofer letter because the subject land is adjacent to the railway line (i.e. Central Railway).4.7. On 16th December 2015, an application was made to the Divisional Railway Manager, Land Management (LM) of Respondent No. 1 for grant of NOC supported by all necessary and relevant documents. The Divisional Engineer (Land Management) [DEN (LM)] of Respondent No. 1 vide an internal letter addressed to different divisions of Respondent No.1 sought their approval for the grant of the NOC for said re-development.4.8. In June-July 2016, various divisions of Respondent No. 1, being Sr. DOM/BB, Dy. CE (C) DR and ADEN(T) Byculla division, vide their respective internal letters deemed the re-development as feasible and approved the drawing that had been provided by the Petitioners for the said re-development. The said approvals for the NOC as given by the various divisions of Respondent No. 1 were internally forwarded to the Deputy Chief Engineer (G) [‘Dy. CE (G)’] of Respondent No. 1 in March 2017 for his approval to the grant of NOC.4.9. The Dy. CE (G) of Respondent No. 1 while examining the application found a discrepancy in the width of the railway land at the concerned location on a comparison of the Original Paper Tracing (OPT) done by the division, with the width mentioned as per the Roll Plan. He therefore internally rejected Petitioner No. 1’s Application for grant of NOC vide letter dated 30th May 2017. In the said letter, the Dy. CE (G) has interalia stated that the “….proposed structure lies on the Railway land. Hence the present proposal for issuance of the NOC for the proposed construction cannot be considered and hence rejected till demarcation and verification of Railway land.”4.10. In response to the said letter of 30th May 2017, the DEN(LM) of Respondent No. 1 vide his letter dated 14th June 2017 informed the Dy. CE(G) that the subject land had been duly verified and after verification it was observed that the “….property under NOC process is out of railway boundary”. Despite this confirmation, the Dy. CE (G) did not accept the finding and vide an internal letter dated 4th August 2017 interalia ordered the Sr. DEN (Co)/BB of Respondent No. 1 to get the land verified, modify the OPT, consolidate the land plans and to demarcate the railway land. In compliance with this direction, DEN (LM) once again verified the railway land width at site and informed the Dy. CE (G) that the width found at the site was more than what is shown on the OPT.4.11. Despite the verification and affirmation of its officers to the effect that the subject land was out of railway boundary, the Dy. CE (G) alleged callous attitude on part of its divisional staff in verifying the land and getting the railway land demarcated and once again internally rejected Petitioner No 1’s application vide an internal letter dated 9th October 2017. This was not informed to the Petitioners.4.12. Since considerable time had lapsed from the time the application was made for grant of NOC, Petitioners enquired about the status of its application. They were informed that demarcation and measurement would have to be carried out at the concerned location. Petitioner No. 1 therefore made an application to the revenue authorities requesting for an urgent survey and demarcation of the subject land.4.13. In June 2018, a joint survey of the subject land and of the railway land was conducted by the revenue department, in the presence of Petitioner No. 1 as also of officials of Respondent No. 1, including the DEN (LM). On the basis of the survey map the boundaries of the said lands were confirmed by the City Survey Officer. Thereafter a joint demarcation was carried out on the basis of the survey map and the boundaries of the said lands were confirmed by the City Survey Officer. The said demarcation was agreed upon by Petitioner No. 1 as also by Respondent No. 1. No complaints of any nature were raised regarding the said survey and/or demarcation.4.14. On 10th July 2018, the DEN (LM) duly informed the DY. CE (G) about the joint survey and demarcation having been conducted, the railway land width being verified at site and the same being in conformity with the railway land plan with no encroachment having been done by Petitioner No. 1. Despite this position, on 30th July 2018, Dy. CE (G) for the third time in a row, internally rejected the grant of NOC.4.15. The rejection of grant of NOC was communicated to Petitioner No. 1 by DEN (LM)’s letter dated 30th August 2018. The ground mentioned therein is that a “part of the property falls in the railway land as per railway records”. Petitioner No. 1 therefore addressed a detailed representation by its letter dated 11th September 2018 putting on record the events that had transpired. A request was made to revive the application for grant of NOC. Respondent No. 1, through Dy. CE (G), once again vide its letter dated 17th October 2018 rejected the said request for grant of NOC.4.16. Thereafter in November 2018, at the request of Petitioner No.1, the General Manager held a meeting with the Chief Engineer General and Dy. CE (G) and directed his officials to conduct another joint measurement of the subject land by the revenue authorities, for the purpose of taking a fresh decision on the grant of NOC.4.17. In the meantime, Respondent No. 3 - MHADB vide its letter dated 27th November 2018 interalia informed Respondent No. 1 that the subject building on the subject land was built by Respondent No. 2 and allotted to Petitioner No. 1 on ownership basis free from encroachment. In view of the same and in view of the 1st joint survey report, Respondent No. 3 requested Respondent No. 1 to grant the NOC in favor of Petitioner No. 1. Despite this, in April 2019, Respondent No. 1 once again rejected the grant of NOC on the same ground that “part of plot on which the redevelopment of the existing building has been proposed is falling on Railway land as per Railway’s record”.4.18. Various letters were addressed by Petitioner No. 1 disputing the fact that subject land had encroached upon Respondent No. 1’s land. Petitioner No. 1 further pointed out that since there already was a 6 ft. tall boundary wall in between the railway land and the subject land (the said wall being the demarcated boundary confirmed by the City Survey Officer), as also an open gutter of 18 ft. width adjacent to Petitioner No. 1’s subject land going through the railway land, there was no question of the subject land encroaching upon the railway land. Repeated requests were made for grant of NOC.4.19. Four months after the directions of the General Manager of Respondent No. 1, the revenue department once again carried out a joint survey and demarcation of the subject land and further fixed 28th May 2019 as the date for demarcating the railway land boundary. Thereafter, on 30th May 2019, in compliance with the instructions of the General Manager of Respondent No.1, the City Survey Officer demarcated the boundary of the railway land as also of the subject land in conformity with the records, in the presence of Petitioner No. 1’s representatives as also the Respondent No.1’s officials. The findings of the City Survey Officer were recorded by him in his report dated 31st May 2019. As per the said report, the boundaries were marked and confirmed on the basis of the records and no part of the railway land was said to be encroached by the subject land. The findings of demarcation in the report were duly accepted by both Petitioner No. 1 as also by Respondent No. 1 and no complaints of any nature either with respect to the survey or the demarcation were raised by any party.4.20. In view of the findings of the City Survey Officer in the two joint survey reports and the demarcation of the railway and subject land having been carried out, Petitioner No. 1 vide its letter dated 16th June 2019 once again requested Respondent No. 1 to grant the necessary NOC. It was also pointed out in the said letter that Respondent No. 1 had issued NOC’s to various other developers and builders between 2010 and 2018 for carrying out construction of multi-storied buildings on the lands adjoining the railway land, i. e. on the same CTS No. 922(Part) and sub divided CTS No. 921, 921-A. which are adjacent to Petitioner No. 1’s subject land and are sharing the same railway land boundary with Petitioner No. 1.4.21. On 25th February 2020, in order to resolve the issue of grant of NOC, Petitioner No. 1 once again met the Dy. CE (G) who, despite two joint surveys and demarcations already having been conducted in June 2018 and May 2019, directed a fresh demarcation of the railway land to be carried out by the Revenue Authorities for the third time.4.22. The Petitioner therefore filed the present Petition, seeking reliefs set out in paragraph 3 above.5. On the other hand, Respondent No.1’s case is as under:5.1. The application for grant of NOC came to be rejected for the reason that part of the proposed building to be re-developed falls within the railway land in the sense that the required railway land width which is actually available at the said location is lesser than what should be available as per the railway records, more particularly the land plans available with the railway.5.2. It is not known how Respondent Nos. 2 and 3 (MHADA and MHADB) became seized of plots bearing CTS No. 922. Moreover, vide the sale deed dated 13th October 2010 Respondent No. 2 has conveyed the subject building standing on subject land admeasuring 852.25 sq.mtrs., whereas while granting approval for redevelopment the Respondent No. 2 has granted approval for 880.42 sq.mtrs. which includes tit-bit land of 27.99 sq.mtrs. This raises a doubt on the authenticity of Respondent No. 2’s – MHADA’s title over the subject land.5.3. The subject building which exists on the subject land at present was constructed in 1990 without obtaining Respondent No. 1’s NOC and therefore there are serious procedural lapses on the part of Respondent No. 2 - MHADA and Municipal Corporation of Greater Mumbai.5.4. The internal communications informing ‘feasibility’ to grant NOC are only from the operating point of view and the same are not concerned with the issue of ownership of the subject land. As regards the construction of boundary wall, the same is for the purpose of protection from unauthorized railway crossings / trespassing from safety point of view and the same is not a determinative factor of the Railway boundary.5.5. The demarcation drawing of the revenue survey is not commensurate with the Railway land plan at this location as the Railway land width should be 345.6 mtrs. as per the available record. Land plans are prepared at the relevant time based on the acquisition and the documents / land plans being contemporary in nature, a great authenticity is attached to them. This demonstrates the acquisition of land at this location by the Railways since 1853 till 1957. When Railways had not surrendered any piece of land to the State Government, it is not known how Respondent Nos. 2 and 3 became seized of the portion which belongs to Railways. This aspect could not be effectively pointed out by the field staff of the division who witnessed the surveys.5.6. As far as grant of NOC’s to adjacent land portions are concerned, the same has no bearing on the present case since the railway land width differs from location to location as the area of land acquired in the same line is not uniform. As such no comparison can be made with reference to the NOC granted to the other buildings situated on the same line.5.7. A proposal for grant of NOC is rejected by Respondent No. 1 even if there is a slightest apprehension that the proposal may vitiate the interests of the Railways. This includes the apprehension of there being an encroachment over Railway land.5.8. The Petition raises seriously disputed questions of fact and on that count, it is liable to be dismissed.6. The learned Advocate for the Petitioner has relied on several documents and has made the following submissions :6.1. The subject building of the Petitioner No. 1 - Society was constructed in 1993 and at the relevant time there was no objection raised by Respondent No. 1. At no point in time did Respondent No. 1 ever raise any dispute as regards any encroachment having been done on the Railway land either by Respondent Nos. 2 and 3 (MHADA and MHADB) or by the Petitioners. Inviting our attention to the various documents on record, it is submitted that Petitioner No. 1 has validly derived its title to the subject building as its owner and to the subject land as its lessee from Respondent Nos. 2 and 3 under registered deeds of sale and lease respectively.6.2. That on a perusal of the internal correspondence exchanged between various departments of Respondent No. 1 it is clear that the railway land at the concerned location has been verified and that the boundaries have been confirmed by various officials of Respondent No. 1. Letter dated 20th July 2017 was relied upon to show that the officials of Respondent No. 1 have themselves verified the subject land and the boundary according to the railways land plans and it was in furtherance of this position that vide 8th March 2017 an internal request was made by the concerned ofcial of Respondent No. 1 to Dy. CE (G) to approve the grant of NOC.6.3. That by his letter dated 14th June 2017 the DEN (LM) has clearly opined that the subject land falls outside the railway boundary. The opinion in this letter, was given by the concerned official after verifying the land again in furtherance of letter dated 30th May 2017 wherein Dy. CE (G) of Respondent No. 1 had raised the issue of discrepancy in the railway land width at the concerned location. It is submitted that therefore there was no necessity for any further enquiry.6.4. That despite the clear opinion given by DEN (LM) as aforesaid, further objections were raised internally by Dy. CE (G) which ultimately led to a survey and demarcation being carried out by revenue authorities. Such a joint survey and demarcation has been carried out by the revenue authorities in the presence of the officials of Respondent No. 1 on two occasions. It is pointed out that on both these occasions the concerned officials of Respondent No. 1 have confirmed the factual position at site as regards the boundaries of the subject land with the railway land. Our attention was invited to the joint survey reports and correspondence exchanged between the officials of Respondent No. 1 on that basis.6.5. That despite this position, Respondent No. 1 issued the letter dated 30th August 2018 to the Petitioners informing that the proposal for grant of NOC has been rejected on the ground that the part of the property falls in the railway land. He has also invited our attention to the subsequent letters of rejection of NOC on the same ground.6.6. That it is apparent on the face of the record that the shortfall in the railway land width, if any, has to be from the other side of the railway land and not at the side on which the subject land of the Petitioner No. 1 lies. This would be the only logical conclusion that can be drawn given the fact that the boundary of the railway land from the side of the subject land has been confirmed and accepted in two joint survey and demarcation reports. That even if it is assumed that there is any shortfall in the railway land width from the opposite side, that cannot be a reason for withholding the NOC by Respondent No. 1, especially when it is clear that there is no encroachment on the railway land from the side of the subject land.6.7. That the sketch plan brought on record by Respondent No. 1 itself, in its affidavit in reply demonstrates how there could not have been any encroachment by the Petitioners on the railway land.6.8. That Respondent No. 1 has granted NOC’s to several developers and societies whose buildings are situate on plots of land which are adjacent to the subject land sharing the same common boundary wall. Reliance has been placed on images obtained from Google Maps which show the physical position of the plots and the buildings standing on them. By pointing out that such other plots which have received NOC’s lie besides the subject land on either sides, it is submitted that Respondent No. 1 has singled out the Petitioners for reasons best known to them.6.9. That Respondent No. 1, on the other hand, has not brought any document to show its entitlement or ownership over the subject land or any part thereof. That apart from taking a stand that there is a supposed shortfall in the railway land width at the concerned location, nothing has been brought on record by Respondent No. 1 to show that the Petitioners have encroached upon any portion of the railway land. That in fact there are discrepancies and contradictions in the Respondent No. 1’s own documents and the calculations relied upon in support of their claim of shortfall in the width of railway land, which raises a serious doubt about the credibility of these documents. Our attention was invited to a tabular chart contained in the affidavit in rejoinder where the Petitioners have attempted to highlight some of these contradictions and discrepancies. One significant contradiction that is pointed out is that although Respondent No. 1 claims that the railway land width at the concerned location should be 345.6 mtrs, the sum total of the widths of various land parcels set out in paragraph 4(i) of Respondent No. 1’s Affidavit in reply, is only 325.2 mtrs.6.10. That the letters issued by Respondent No. 1 rejecting the grant of NOC to the Petitioner No. 1 are wholly devoid of reasons. That the internal letters exchanged between various departments of Respondent No. 1 were obtained by Petitioner No. 1 only subsequently and were not communicated to it at the relevant time. That by supplementing the unreasoned letters of rejection of NOC by raising grounds for the first time before this Court by way of affidavits is not permissible. In this regard, reliance was placed on the decision of the Supreme Court in the case of Rashmi Metaliks Ltd and Anr. v/s. Kolkata Metropolitan Development Authority and Ors (2013) 10 SCC 95 - (Paragraphs 14, 15 and 16). 6.11. Relying on various photographs showing the physical condition of the subject building, it is submitted that the subject building is in a highly dilapidated condition. Petitioner No. 1 Society is waiting for the grant of NOC for almost four years which requires to be issued immediately to enable the Society to forthwith commence the work of re-development of the subject building.7. The learned Counsel for Respondent No. 1 has on the other hand adopted the case set out in the Affidavits filed by Respondent No. 1. As regards the confirmation of the boundaries and the demarcation as mentioned in the survey reports, it is submitted on behalf of Respondent No. 1 that the officials who attended the surveys did not have sufficient knowledge about the land plans and the shortfall in the width of the railway land as per the said land plans.7.1. As regards the boundary wall which is put up by Respondent No. 1, it is submitted that the same is erected only for the limited purpose of preventing railway crossing and encroachments.7.2. On a specific query put by us to Learned Counsel for Respondent No. 1 as regards the existence of any document which would show Respondent No. 1’s entitlement to the subject land, the Learned Counsel for Respondent No. 1 fairly submitted that there is no such document in the possession of Respondent No. 1. As regard the railway land width at the subject location, he submitted that the only available documents are the land plans which are prepared at the time of acquisition by Railways and that the same are the only contemporaneous records which are available with the Railways.7.3. Lastly, as regards the various discrepancies in the calculations of the actual railway land width in the records of Respondent No. 1, learned Counsel for Respondent No. 1 submitted that the discrepancies arise on account of scale conversion. He submitted that even a minor error in tracing would alter the actual reading to a great range. He however submitted that leaving aside this discrepancy, the shape of the Railway boundary as demarcated by the revenue authorities does not match with any land plans available with the Railways.8. Learned Counsel for Respondent Nos. 2 and 3 (MHADA and MHADB) has supported the case of the Petitioners. He submitted that once Petitioner No. 1 has submitted proper documents showing its entitlement to the subject land and the subject building, Respondent No. 1 has to issue the required NOC. Our attention was invited to a letter dated 27th November 2018 addressed by Respondent No. 3 (MHADB) wherein it is specifically recorded that the boundary of the subject land is defined and the area of the subject land has also been confirmed by the City Survey Officer / Kurla of Land Record department in the presence of the Railway representatives. He pointed out that vide the same letter Respondent No. 3 also made a request to Respondent No. 1 to grant its NOC.9. We have heard the learned Counsel appearing for the Petitioners and Respondents and have also gone through the pleadings and the material available on record including the written submissions filed by the Petitioners.9.1. The questions that arise for consideration in the facts and circumstances of the present Petition is whether Respondent No. 1 is justified in withholding the NOC for the re-development proposal of Petitioner No. 1 Society and whether the contentions raised by Respondent No. 1 in support of this withholding are valid.9.2. The record indicates that the subject land is part of various land parcels which were acquired by Respondent No. 4 State vide two notifications dated 17th January 1959 and 13th June 1962. Possession of the said lands, which includes the subject land, was handed over to the Maharashtra Housing Board in 1963 for construction of residential houses / colony. Necessary entries also have been carried out in the revenue record which would indicate the possession. Respondent No.1’s contention that it is not known how Respondent Nos.2 and 3 became seized of the plots is questionable does not hold water for it is contrary to the written record.9.3. Perusal of the registered sale deed under which the subject building was sold to Petitioner No. 1 and the lease deed under which the subject land was leased to Petitioner No. 1, both dated 23rd July 2010, reveals that Respondent No. 3 built the subject building on the subject land for residential purpose, more particularly to house persons belonging to the Middle-Income Group. The members of Petitioner No. 1 Society (40 in number) are those persons to whom the tenements in the subject building have been allotted.9.4. There is also on record a notification dated 23rd May 2018 issued by the Urban Development Department of Respondent No. 4 appointing Respondent No. 2 as the planning authority under Maharashtra Regional and Town Planning Act, 1966 in respect of lands forming part of MHADA layouts. The survey numbers of the lands forming part of the MHADA layout are contained in a schedule appended to the said notification. The subject land is included in the said schedule which is appended to the said notification as being part of a MHADA layout.9.5. In view of the aforesaid comprehensive and undisputed facts supported by documentation, Petitioner No. 1 Society has sufficiently demonstrated its legitimate entitlement to the subject building as the owner thereof and the subject land as the lessee thereof. In fact, the learned Counsel for Respondent No. 1, as we have noted hereinabove, has conceded that there is no document in possession of Respondent No. 1 to show its entitlement over the subject land. Notwithstanding this position, despite a lapse of almost 5 years, the NOC is yet to be issued on frivolous grounds as we will narrate hereinafter.9.6. Having clarified the aforesaid position as to the Petitioners’ right and title, the next aspect that requires consideration is whether any portion of the subject land or the said building can be said to be encroaching upon or falling upon the railway land for this also appears to be Respondent No.1’s reasoning for withholding the issuance of the NOC to the Petitioner.9.7. Firstly, we note that the letter dated 20th July 2016 which is an internal letter between two departments of Respondent No. 1, clearly records that “Rail Land boundary is verified as per Railway Land plan No. 2”. It further records that the correctness of the building has also been verified and that the plot is 21.99 mtrs. away from the railway track boundary. It is on these grounds that the concerned department of Respondent No. 1 has deemed the proposal as ‘feasible’. There is also a letter dated 8th March 2017 whereby Dy. CE (G) has been requested by DRM (W) to convey his approval for granting NOC.9.8. The Dy. CE (G), however, vide his letter dated 30th May 2017 states that there is a shortfall in the railway land width. It is also specifically recorded in the said letter that grant of NOC for the proposed construction cannot be considered till the demarcation and verification of the Railway land is carried out. It is in response to this letter that DEN (LM) informs Dy. CE (G) that the land at the site has been verified and the property in question is falling outside the railway boundary. Dy. CE (G) of Respondent No. 1 still appears to insist in his letter dated 4th August 2017 that the land at site needs to be verified, the Land plans need to be consolidated and the railway land needs to be demarcated. He is yet again informed by a subsequent communication dated 12th September 2017 by DEN (LM) that the railway land width at the said location is found more than what is shown on the OPT (Original Paper Tracing). One would think that this position would be accepted and the required NOC would be granted to the Petitioner No. 1 Society so as to enable it to re-develop its building. The Dy. CE (G) however, appears to remain adamant on the stand that the actual railway land width at the site is not in conformity with some land plan, a plan, which as we will set out herein after, does not adequately set out anything conclusively.9.9. A survey and a demarcation is then carried out, as was also desired by Dy. CE (G) in several of his letters. The result of this exercise which appears to have taken place in June 2018 led to a finding that “railway land boundary is correct on party’s plot side” which is communicated to Dy. CE (G) by DEN (Land Management) under the letter dated 10th July 2018. We have also perused the survey report placed on record in respect of this exercise and from the same we find that all the persons in whose presence this exercise was carried out, have accepted the correctness of the same. The Dy. CE (G) however, vide his letter dated 30th July 2018 rejected and disregarded the said joint measurement and demarcation. The said letter states the basis on which Respondent No. 1 is withholding the NOC. The relevant extract of this letter reads as under :“The joint measurement sheet has been examined and it has been observed that the joint measurement sheet of CTS No. 922 does not show the Railway boundary on both sides due to which the total railway land width at the subject location cannot be ascertained. The Railway land width as per Railway Land plan No. 2SE, 2HB, LP No. 3184R and 4206 (copies enclosed) is 345.6 m, which division vide letters dated 27.12.2017, 15.03.2018 and 10.07.2018 under ref (1) has repeatedly certified that the Railway land width at the subject location is 250 m.”(emphasis supplied)9.10. From the aforesaid letter it is clear that despite accepting the position that the railway boundary at the Petitioners’ plot side was correct, the survey report was still disregarded because the survey and the demarcation exercise did not reveal the correctness of the railway boundary on the opposite side. In our opinion, the joint survey and demarcation exercise was not meant to assess the correctness of the railway boundary on the opposite side which is not the concern of the Petitioner No. 1 Society.9.11. In view of this position, contrary to what one would have otherwise expected, Respondent No. 1 vide its letter dated 30th August 2018 informed the Petitioners that their proposal for NOC has been rejected. The reason stated therein is that : “part of the property falls in the railway land as per railways records”. To our mind, this reason is not only contrary to survey report and the repeated communications given to Dy. CE (G) by other departments of Respondent No. 1, but is also vague, unsubstantiated and suffers from non-application of mind. This letter does not specify the exact part of the property which falls on the railway land. Further, it also does not state what exactly these “railway records” are. Pertinently, this letter also states that the proposal “can be resubmitted after necessary clarification”. This led to the Petitioner No. 1 - Society making several representations to secure its right to re-develop the subject building. Requests for revival of the application for grant of NOC were turned down by letters dated 17th October 2018 and 23rd April 2019 with the oft quoted reason that part of the plot is falling on railway’s land “as per railway’s records”.9.12. It appears that these representations and even a communication from Respondent No. 2 (MHADA) was not found sufficient by Respondent No. 1. As a result, the Parties were compelled to go in for a second round of joint survey and demarcation. This exercise, which was carried out in May 2019, yielded an identical result. The boundaries of the railway land and the subject land were demarcated and confirmed on the basis of the records and no part of the railway land was said to be encroached by the subject land in the presence of the representatives of the Petitioners and Respondent No.1. This position was accepted by representatives of both the parties present.9.13. On 30th May, 2019, in compliance with the instructions of Respondent No.1’s General Manager, the City Survey Officer demarcated the boundary of the railway land as also of the subject land in conformity with the records and in the presence of Petitioner No.1’s representatives and also Respondent No.1’s officials. The findings of the City Survey Officers were recorded by him in his report dated 30th May, 2019. As per this report, the boundaries were marked and confirmed on the basis of the records and no part of the railway land was said to be encroached by the subject land.9.14. From the record it appears, that despite the fact that for a second time the correctness of the boundary of the subject land with the Railway land was confirmed, Respondent No. 1 did not budge from its adamant position and withheld the NOC. Members of Petitioner No. 1 - Society continued to make representations. Despite this, a perusal of the Minutes of the meeting held on 25th February 2020 and in particular paragraph 4 thereof reveals that Respondent No. 1 wanted a third attempt at demarcation. Had the Petitioners not approached this Court, it appears to us that this would have continued as an endless process thereby impinging upon the rights of the members of the Petitioner No. 1 Society who have been earnestly waiting for the subject building to get re-developed.9.15. We deprecate this conduct on the part of Respondent No. 1. This is not conduct we expect out of an instrumentality of the State. It is not the case of Respondent No. 1 that on the perusal of the building plans of the proposed building, the construction would come in the way of the smooth operation of the railways. The only reason given by Respondent No. 1 to reject the NOC despite the correctness of the railway boundary from the side of the Petitioners’ plot, is that there is a supposed shortfall in the railway land width at the concerned location on the basis of some plan. This excuse is given after allowing the subject building on the Plot leased to it by MHADA, since the last 27 years, and only when the subject building is in an extremely dilapidated condition and the 40 members alongwith their families who are facing an imminent danger of collapse of the subject building are taking steps to get the same redeveloped.9.16. At this juncture, it is also necessary to note that we are inclined to accept the submissions made by the learned Counsel for the Petitioner that there could not have been any scope for encroachment by the Petitioners on the railway land. He has taken us through the sketch prepared and annexed by Respondent No. 1 itself in its affidavit (at Page 214 of the paperbook). The markings in colour are made by the Advocate for the Petitioners, only for better understanding of the factual position. This particular sketch has been explained by the Advocates for the Petitioner in their written submissions and for a proper appreciation of the factual position, we deem it appropriate to extract the same in the present order. The same is as under:“CHART”“56. The Blue line is where the boundary wall has been constructed and on one side of this Boundary wall lies the “Quarry” portion, i.e. the Open Gutter (See Page 297, the photograph is taken from the camera mounted on wall overlooking the Gutter/Quarry and the Railway land beyond that.). Now, as per the sketch and plan at Pages 214 and 215 of the Affidavit in Reply filed by the Respondent No. 1 respectively, it is clear that the measurement of width begins at “Quarry”, i.e. the Blue Line and moves Eastwards towards Point B. The subject land of the Petitioners (denoted by the Green circle) is Westwards. In these circumstances, it is impossible that the subject land of the Petitioners (denoted by the Green circle), which is situated behind the Blue Line, i.e. behind even the starting point of the measurement of the width, would ever encroach upon the Railway land or consume any width of the Railway Land. Resultantly, assuming there is any shortfall in the width according to the Railways, the same cannot be from the side of the subject plot but may be from the side of Point B, i.e. the other side. In that event, that is not the concern of the Petitioners and on account of alleged shortfall of width, the Respondent No. 1 cannot withhold NOC from the Petitioners.”9.17. From the above, it is clear that Respondent No. 1 itself understands that quarry (or the deep pit/nallah/gutter as it remains today) is the starting point of the railway land. This quarry is separated from the subject land by a boundary wall, which has been confirmed in two joint survey and demarcation reports. Given this position, when the subject land is behind the point of zero metre and the measurement of the width of the railway land begins at such a point and moves in the opposite direction (as is apparent from the photographs taken from the boundary wall), it becomes increasingly clear to us that if at all there is any shortfall in the width of the railway land, it has to be from the opposite side.9.18. Whilst on this, it is important to consider the stand taken by the learned Counsel for Respondent No. 1 that the boundary wall is not determinative of the true boundary but is only a measure to prevent railway crossing and encroachment. Firstly, the correctness of the boundary has been accepted by the representatives of Respondent No. 1 in two joint measurement and survey reports. Secondly, and more importantly, this stand has been taken by Respondent No. 1 by simply making an averment in an affidavit before this Court. Nothing whatsoever has been brought on record to substantiate this stand and for this reason it does not commend itself to us. Even from the land plans, Respondent No. 1 has not been able to demonstrate anything. The land plans, most of which are unsigned, appear to be Respondent No. 1’s internal documents at best. We cannot accept Respondent No.1’s contention that the boundary wall was constructed merely to prevent people from crossing the railway track. This assertion is unsubstantiated, without any particulars and contrary to the various joint measurements/survey reports.9.19. None of the documents brought on record by Respondent No.1 substantiate any of its contentions. When we juxtapose the overwhelming documents brought on record by the Petitioners with Respondent No.1’s documents, it becomes ex-facie clear that Respondent No.1 never had any possession or ownership over the said land. One cannot also lose sight of the fact that Respondent No.2 and the Petitioners have been in possession of the subject land right since 1964 and 2010 respectively to the express knowledge of Respondent No.1. Despite this position, no steps whatsoever have been taken by Respondent No.1 to either take possession of the subject land and/or get the revenue records rectified which till date show Respondent No.2 as the owner and Petitioner No.1 as the lessee of the subject land. Likewise, Respondent No.1 has also failed to establish that there has been any encroachment by the Petitioners over the railway land.9.20. In view of all that has been held hereinabove, we are of the considered opinion that the present Petition deserves to be allowed. Petitioner No. 1 Society has sufficiently demonstrated its entitlement. In our view the members of the Petitioner No. 1 Society who have been living in a dilapidated building since the last several years ought not to be kept waiting. It is unfortunate that for speculative and irrelevant considerations, Respondent No. 1 has withheld the NOC from the Petitioners for almost 5 years. While doing so, Respondent No. 1 has neither shown its own entitlement to the subject land nor shown how the Petitioners have encroached upon any portion of the railway land. Respondent No. 1 has also not shown how the interests of the railways would be vitiated if the re-development of the Petitioner No. 1 Society’s building is permitted. As observed herein above, it is not Respondent No. 1’s case that the proposed building is going to impede the smooth functioning of the railways at the subject location. Respondent No. 1 has failed to show these considerations even on a prima-facie basis.9.21. In view of the fact that we have held in favour of the Petitioners, we see no reason to opine on the grant of NOC(s) to other buildings in the vicinity.9.22. In so far as the contention raised by Respondent No.1 that the present petition raises disputed questions of fact, we find no substance in this submission. It is now well settled that a Writ Petition would be maintainable notwithstanding a dispute as to certain facts. The Supreme Court in ABL International Ltd. v/s. Export Credit Guarantee Corpn of India (2004 3 SCC 553)at paragraph 19 has held:"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows

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that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact."9.23. In any event, we see no ‘disputed’ question of fact in this Petition. The documents brought to our notice in this Petition are overwhelmingly in support of the Petitioners’ case and cannot justify Respondent No.1’s withholding of the NOC. Further, the ‘dispute’ sought to be raised by Respondent No.1 is on the basis of surmises and conjectures.9.24. In order to ascertain the nature of powers of this Court under Article 226 of the Constitution of India, especially in a matter like the present one, useful reference can be made to the law laid down by the Supreme Court in the case of RBF Rig Corporation, Mumbai v/s. the Commissioner of Customs (Imports), Mumbai (2011) 3 SCC 573). Paragraphs 19, 20 and 21 of the said decision which are relevant are reproduced as under:“19. Article 226 of the Constitution confers powers on the High Court to issue certain writs for the enforcement of fundamental rights conferred by Part-III of the Constitution or for any other purpose. The question, whether any particular relief should be granted under Article 226 of the Constitution, depends on the facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice.20. In Comptroller and Auditor-General of India v. K.S. Jagannathan MANU/SC/0066/1986 : (1986) 2 SCC 679, this Court has held: 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fde or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other ft and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. 21. In Dwarkanath v. ITO, MANU/SC/0166/1965 : AIR 1966 SC 81, this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country. (emphasis supplied)9.25. In our considered opinion, the Impugned Letters are unreasoned and arbitrary based on speculative concerns. None of the defences raised by Respondent No.1 are substantiated by documentation. The admitted position is that the said building is in a highly dilapidated condition. The Petitioners have been made to run from pillar to post and are awaiting issuance of the NOC for almost 5 years. The first application for NOC was submitted on 16th December, 2015. Despite a lapse of almost 5 years, till date, there is no cogent reason whatsoever for withholding the Petitioners’ NOC. Respondent No.1 has failed to exercise its discretion on the basis of speculative and irrelevant considerations. This is therefore a ft case to issue a writ of mandamus ordering, directing and compelling Respondent No.1 to perform its statutory duties in a proper and lawful manner.10. In view of the foregoing discussion, we pass the following Order:a) The Petition is allowed in terms of prayer clause (a) and the impugned letters dated 30th August 2018, 17th October 2018 and 23rd April 2019 are quashed and set-aside.b) Respondent No. 1 is directed to issue the No-objection certificate in favour of Petitioner No. 1 for re-development of existing building on the subject land situate at Survey No. 260 to 263 and 171 to 174, bearing CTS No. 922 (Pt) at Vinobha Bhave Nagar, Kurla (west), Mumbai- 400070 within a period of 4 weeks from today;c) Rule made absolute in the aforesaid terms.
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