IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SLP (CIVIL) No.23447 0f 2008

The BEST Workers Union            … Petitioner

Versus

The State of Maharashtra & Ors.      … Respondents

WITH

SLP(Civil) No.3018 of 2009

BEST Kamgar Sangathana      …Petitioner

Versus

The State of Maharashtra & Ors.     ..Respondents  

O R D E R

Heard  Mr.  Shyam Divan,  learned  senior  counsel  appearing  for  the  

petitioner; also heard the Attorney General appearing on behalf of the Brihan  

Mumbai Electric Supply and Transport Undertaking (‘BEST’, hereinafter),  

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Mr. C.U. Singh, learned senior counsel for Municipal Corporation, Greater  

Mumbai and Mr. Sorabjee learned senior counsel representing respondent  

No.7.  

The government of Maharashtra made an amendment in regulation 9  

of  the  Development  Control  Regulations  for  Greater  Bombay,  1991  and  

inserted an explanation into it vide notification dated July 27, 2006 issued  

under section 37(2) of Maharashtra Regional and Town Planning Act, 1966  

(‘the Act’ hereinafter). On the basis of the amendment in regulation 9, the  

BEST  entered  into  a  development  agreement  dated  May  18,  2007  with  

respondent No.7 in respect  of a piece admeasuring 27,913.93 sq.  metres,  

being part of a much larger block of land measuring 1,54,082.40 sq. metres  

that  had  come  to  the  BEST  following  acquisitions  made  by  the  State  

government  in  the  years  1973  and  1974  for  its  different  purposes.  In  

pursuance of the development agreement, and in the absence of any interim  

order  of  restraint  by  the  court  respondent  No.7 went  ahead with  making  

constructions over the piece of land in question and we were told in the  

course of hearing that more than one multi storied buildings (over 40- stories  

each) were already constructed over the land.

The petitioner is a trade union of the workers of the BEST and it is  

recognized by the management  as representative of the workmen. In that  

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capacity it assails the government notification amending regulation 9 and it  

also  challenges  the  action  of  the  BEST,  on  the  basis  of  the  amended  

notification, to give away a large chunk of its land, on long term lease (60  

years and renewable), to respondent No.7.  

Mr.  Divan  contended  that  the  petitioner  was  a  “person  affected”  

within the meaning of section 37 of the Act and it was, therefore, entitled to  

a  personal  notice  and  a  right  of  hearing,  apart  from  the  public  notice  

published  in  the  Maharashtra  Government  gazette  and  two  newspapers  

namely  “Vartahar”  (Marathi)  and  “Economic  Times”  (English).   No  

personal  notice  was  given  to  the  petitioner  and  hence,  the  amendment  

notification dated July 27, 2006 was bad and illegal being in violation of the  

mandatory requirement of section 37 of the Act.  

Mr. Divan next submitted that there was a large number of materials  

to show that the large block of land with the aggregate area of 1,54,082.40  

sq. metres that had come in the hands of the BEST following acquisitions  

made by the State government in the years 1973 and 1974 had been sub-

divided  into  7  plots  numbered  as  1,  2A,  2B,  2C,  3,  4,  5.  Plot  No.2A,  

admeasuring 27,913.93 sq.  metres,  ear-marked for the BEST undertaking  

staff housing had remained vacant while all the other six remaining plots had  

already  been  put  to  different  uses  for  the  purposes  of  the  BEST.  The  

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development  agreement  between  the  BEST  and  respondent  No.7  was  in  

respect of plot No.2A.  Mr. Divan further submitted that though the amended  

regulation 9 allowed the development of the sites reserved for the BEST for  

the  designated  user  coupled  with  commercial  user,  the  relaxation  for  

commercial  user  was  restricted  to  a  maximum  of  30%  of  the  total  

permissible floor area. According to him, therefore, the commercial user of  

the land forming the subject matter of the development agreement could not  

exceed  30%  of  27,913.93  sq.  metres  (with  the  FSI  being  1)  but  the  

development agreement executed in favour of respondent No. 7 permitted  

commercial user of 39,291 sq. metres of built up which was even in excess  

of 100% of the area of the land. Mr. Divan submitted that the area of which  

commercial  user  was  allowed  to  the  respondent  under  the  development  

agreement was not  in relation to the area of the land forming its  subject  

matter but it was apparently determined by taking 30% of the aggregate area  

(1,54,082 sq. metres) of the entire block of land.  He also submitted that  

other  mandatory  conditions  of  the  construction  bye-laws  were  similarly  

purported to have been followed on the basis of the aggregate area of the  

total  land being 1,54,082.40 sq. metres with the result  that the statutorily  

required recreational grounds for the constructions made over plot No.2A  

(area: 27,913.93 sq. metres) were shown in the sanctioned plan scattered all  

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over the larger block of land (Area: 1,54,082.40 sq. metres)  

Mr. Divan lastly submitted that the alienation of the Corporation land  

was a very serious matter and it could only be sanctioned by the general  

house of the Corporation or one of its committees duly authorized in this  

regard. The General Manager of the BEST, on his own, was certainly not  

competent to give away large chunks of the Corporation land.

In reply to the petitioner’s claim for a personal notice, Mr. Attorney  

General pointed out that the High Court had held the petitioner might be an  

‘interested person’ but it was not an ‘affected person’ within the meaning of  

section 37(1) of the Act.  He further added that the amendment notification  

dated July 27, 2006 was issued following the procedure laid down under  

section  37(1A) and any reference  to  the  provisions  of  section  37(1)  was  

quite misconceived.  He stated that two letters of the State government sent  

on November 9,  1997 and June 17,  2003 asking the Corporation to take  

steps  for  amendment  of  regulation  9  went  unheeded,  and then  the  State  

government had to itself  move to bring about the required amendment in  

terms of section 37(1A) of the Act. The Attorney General pointed out that  

sub-section (1A), unlike sub-section (1) had no provisions for any notice or  

right of hearing to any affected person; it simply required a public notice and  

that requirement was fully complied with.

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Coming  to  the  second  point  raised  by  Mr.  Divan,  the  Attorney  

General submitted that any plea that all  the lands held by the BEST had  

earlier undergone a division resulting in a number of sub-plots coming into  

existence  and that  the  amended provision  of  regulation  9 was applicable  

plot-wise and would apply only to plot No.2A forming the subject matter of  

development agreement was quite unfounded.  He submitted that different  

facilities,  utilities,  and services  like  bus  depot,  scrap yard,  staff  housing,  

approach  road  etc.  were  cited  on  the  different  portions  of  the  land  

(1,54,082.40 sq. metres) simply for functional convenience and there was  

nothing to show any division of the land into sub-plots for the purpose of  

revenue records.  Moreover, a bare reading of the notification dated July 27,  

2006 would make it clear that the provision for commercial user of 30% of  

the  permissible  floor  area  was  allowed  for  sites  reserved  for  the  BEST  

undertaking such as BEST bus depot,  BEST bus station, BEST terminus,  

BEST bus station and staff quarters, BEST bus depot and transport carriage.

In this connection, Mr. Sorabjee referred to the notice inviting tenders  

(AGM(C)/156/2006)  for the development of  plot  No.2A at  BEST Nagar,  

Oshiwara,  Goregaon  (West)  for  residential/commercial  purposes.  In  the  

tender notice the total area of the plot was given as 27,913.93 but the BEST  

offered  to  the  developers  “Approximately  area  of  39,291  sq.  metres  for  

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proposed commercial development i.e. 30% built up area of total permissible  

floor  area  of  entire  acquired land”.  The tender  notice  gave  rise  to  some  

confusion and a pre-bid meeting was held on September 8, 2006 to clarify  

the  doubts/points  of  the  prospective  bidders  in  respect  of  the  terms  and  

condition of the tender document. The minutes of the meeting in the form  

Addendum/Corrigendum is as follows:

Para  No./  clause  No.  & Page No.  from  Tender

Points needs clarification Clarification  given  for  Modification/  Addition/  deletion  to  the  existing  clause  as decided in the meeting  

2, page 5 It  has  been  mentioned  that  the  permissible  area  of  proposed  development  would  be  approx.  39,921  sqm (4,22,772  Sqft  subject  to  actual  area  constructed  for  commercial/  residential  purpose), so the point raised  was that since the tender is  for  development  for  residential/  commercial,  there  was  doubt  in  respect  of  residential  and  commercial  aspect  and  whether  only  30%  of  the  total  plot  is  reserved  for  residential/commercial  purpose.

The  plot  is  reserved  for  Bus  Depot, Scrap yard and housing  in  residential  zone.  The  expected  non-refundable  premium has been worked out  considering  that  the  developer  develops the plot for residential  purpose.  However,  if  the  developer  is  able  to  obtain  approval  from  the  statutory  authorities  concerned  to  develop  it  as  commercial  then  he is welcome to do so and pay  the premium as per the relevant  tender  condition  stipulate  din  the Form of offer of the tender  document i.e. at the rate of 2.15  times  the  rate  quoted  for  residential development

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Para  1,  Para 4

The plot is sub-divided and  so  whether  this  plot  would  have a legal entity separate  from  its  entire  holding,  which  admeasures  about  1,54,082.40 sqm.  

The sub-division of the plot as  referred to in the tender is only  a  technical  sub-division  from  functional point of view of the  BEST.  However,  as  per  law,  the  plot  in  question  cannot  be  considered as sub-divided with  a  separate  legal  entity.  The  developer  can  utilize  the  built  up area of 39,921 sqm (i.e. 30%  of  the  entire  holding)  on  the  plot  area  of  27,913  sqm.  It  is  also  likely  that  the  percentage  of commercial component may  go  upto  50%  subject  to  State  government sanction.

As  to  the  third  objection  raised  by  Mr.  Divan  regarding  the  

competence  of  the  General  Manager  of  the  BEST  to  enter  into  a  

development agreement with respondent No.7, there does not appear much  

substance in it  since the Corporation and the BEST are appearing on the  

same side in this case and the Corporation in strongly supporting the stand  

of the BEST. It was also pointed out that at this stage there is no alienation  

of the land; there is only a development agreement. The stage of alienation  

will arise when lease deeds will be executed in favour of the nominees of  

respondent No.7 and then at that stage all the technical formalities will be  

complied with.

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On hearing counsels for the parties and on a careful consideration of  

the  materials  on record,  we find no merit  or  substance  in  the  objections  

raised by the petitioners. We are clearly of the view that the matter does not  

warrant  interference by this  court.  The SLP (Civil)  No.23447 of  2008 is  

accordingly,  dismissed.  Following  the  order  passed  in  the  SLP  (Civil)  

No.23447 of 2008, the SLP (Civil) No.3018 of 2009 also stands dismissed.  

  …………………………….J.    [Aftab Alam]

……………………………..J.             [Dr. B.S. Chauhan]  

New Delhi, January 15, 2010.

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