MILAN COOPERATIVE HOUSING SOCIETY LIMITED Vs. PUNE MUNICIPAL CORPORATION

JUDGEMENT

(1.) This second appeal is filed by the original plaintiff to challenge the concurrent judgments and decrees dismissing the suit for a declaration that the plaintiff has the right, title and interest and the authority to develop the suit property. The suit was filed with respect to the plot of land bearing Plot No. 14(part of old survey no.3) out of Survey No. 133, Hissa No. 5B, 6B, 7B ('said land'). The plaintiff's prayer was for a declaration that the plaintiff ('society') has the right to develop the said plot and construct a commercial building in its capacity as the owner. The suit also prayed for a permanent injunction restraining the respondent ('corporation') from obstructing the lawful title of the society as owner and in possession, and the society's right to develop the said plot and construct the commercial building. The second appeal is admitted by order dtd. 2/12/2005 on the following substantial question of law:

(2.) The plaintiff is the cooperative housing society that purchased the land bearing Survey No. 133, Hissa No. 5B, admeasuring about 49 R, 6B, admeasuring about 33 R and 7B, admeasuring about 38 R by way of two sale deeds dtd. 26/12/1967. Thus, the society claimed title and possession over the entire land, totalling about 1 hectare 20 R. After acquiring the aforesaid land, the society decided to divide the total land into a number of plots and to allot such plots to its respective members. Accordingly, the layout plan was approved, and plots were allotted to the members of the society. The open space in the layout was intended for persons who would carry out construction in accordance with the approved layout and was primarily reserved for a playground and a recreational area for the occupants. The open space comprising 10% of the net area of the land in the layout was for the benefit of the members. However, the corporation insisted on retaining 10% of the gross total area as open space. The reservation for the shopping centre was buildable by the persons entitled to carry out construction on the plot allotted, in accordance with the sanctioned layout.

(3.) The society raised an objection to a letter dtd. 9/9/1968, issued by the corporation, calling upon the society to hand over the physical possession of the land admeasuring 12741 square feet, free of cost (equivalent to 10% of the layout area). The officers of the corporation used coercion to obtain a letter from the then office bearers of the society regarding the transfer of the area, to the extent of 12741 square feet, free of cost. The society had requested that the corporation sanction the plan without requiring the 10% open space requirement, on the ground that the layout provided approximately 4% to 6% open space. By taking undue advantage of the fact that the members of the society belonged to a lower or middle-income group, the officers of the corporation coerced the members and the office bearers of the society into agreeing to the transfer of the open space at no cost. Although the possession receipt dtd. 9/10/1970 was executed, physical possession was always held by the society. The possession receipt was executed solely for the purpose of approving the construction plan. Hence, the plaintiff prayed for a declaration that the plaintiff was entitled to develop the plot reserved for a shopping centre.