Whether Municipal Corporation can permit Mall to utilize their Open Spaces for temporary ice-cream fest?

 Having perused Regulation 27 and more particularly sub clause (1)(g) (ii), we do not notice any restriction/embargo for the recreation area in the petitioner’s mall to be used for the purpose for which the petitioner has made the application in question, to the MCGM. Admittedly, the activity to be undertaken by the petitioners is for a limited period of about three days, by installation of temporary stalls. The Regulation in fact clearly permits “recreational activities”, as can be clearly noticed from Clause (1)(g)(ii). No restriction as to any temporary commercial activity has been provided in Regulation 27(g)(ii), hence, the same cannot be read in Regulation 27 as sought to be interpreted by the Municipal Corporation. This more particularly when there is no definition of “recreational activities”, under the DCPR 2034. In the absence of such definition, ordinary and natural meaning is required to be given to the words “recreational activities”.{Para 6}

10. We are also informed that to have such activity, stalls would be installed by persons who are already having permanent licensed premises for selling such items inside the petitioners mall. Thus, it is not the case that some temporary unregulated commercial activity is being undertaken by the petitioners. In other words, it is only an activity where the visitors of the mall would enjoy the benefit of a variety of edibles at a common open space, which, in our opinion, is a permissible recreational activity within the meaning of Regulation 27.

11. As noted above such activities are intended to the benefit of the public at large, and more particularly in the city like Mumbai when large segment of the population would be interested to take benefit of such events, being organized in the public places like malls where open areas are available. Certainly such temporary activity subject to any other compliances is required to be permitted, so that the open spaces can also be utilized, as permissible under Regulation 27(1)(g)(ii).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 11686 OF 2023

R Mall Developers Pvt. Ltd. & Anr. Vs The Municipal Corporation of Greater Mumbai,

CORAM: G. S. KULKARNI & R.N. LADDHA, JJ.

DATED: 26 April, 2023

ORAL ORDER (Per G.S.Kulkarni, J.)

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Whether Open space owned by the Municipality in front of the shopping complex can be used For Dharna Or Public Meetings?

 The issue involved in this writ petition would then

revolve around the question whether an open space in front of

a Shopping Complex, in this case owned by the Municipality,

would be a public place or public space. The Statement filed

by the 3rd respondent-Municipality would clearly indicate that

the open space is intended for parking the vehicles of the

licensees and customers. Though every citizen has a right to

access to the Shops in the building, the open space is

intended for parking of the vehicles of the customers only.

Therefore, such spaces can have a status of semi-public

space only. No organisation or group of citizens can claim a

right to organise Dharna or public meeting in such places,

without the permission of the Municipality. {Para 11}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 7181 OF 2023

 PRIYESH B KARTHA Vs THE DEPUTY SUPERINTENDENT OF POLICE

PRESENT

 MR.JUSTICE N.NAGARESH

Dated:  30th day of March, 2023

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Karnataka HC: Sexually Harassing In Open Spaces Like Mall & Office Highly Improbable

 The places of sexual contact that is depicted in the complaint is what shocks. The places are at Mindtree office, Forum Mall-Koramangala, Barton Center-M.G.Road, all of which are open places. The petitioner sexually abusing the complainant in such open places cannot but be an allegation that is highly improbable. The police, after investigation, file a charge sheet in the matter, based upon the statement recorded during the investigation.A perusal at the charge sheet would indicate that the allegation against the petitioner is that he has tried to touch the complainant inappropriately wanting to kiss her. Neither the complaint nor the charge sheet would indicate any ingredient of offence under Section 354(A) of the IPC which deals with outraging the modesty of a women. Therefore, the said offence cannot be laid against the petitioner and requires to be obliterated.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION NO. 697 OF 2020

SRI SAMEER DINAKAR BHOLE Vs  THE STATE OF KARNATAKA

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

DATED:  02ND DAY OF MARCH, 2023

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Whether a person can claim that his construction is authorized as per deemed permission if his construction is on open space?

 Deemed permission to an application under section 44 of  MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.

    The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011

Decided On: 21.10.2011

The Court on its own motion and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde & M.N. Gilani, JJ.

Author: S.A. Bobde, J.

Citation : 2012 (1)MhLj 232

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Whether Municipal Corporation can permit layout owners to use open spaces for further development?

 Once such layout is finalized, if the development takes place, the

layout virtually becomes unalterable. The plot in such layout are

sold and are developed by individuals. The land reserved for

road and open spaces are utilized for such purposes and none

else. In an ideal case, the plot owners would form a cooperative

society and using contributed funds they would keep spaces for

recreation, clean and tidy and usable for recreation. They may

develop garden or play ground on such lands. The building bylaws also contemplated that such plots would be handed over to the Municipal Corporation so that they would not only protect

them but would also develop them as play grounds or gardens.

It is not only the plot holders in the locality but even outsiders

who would come in this locality would be entitled to use the land

for its designated purpose such as; road and open spaces for

recreation. In other words, right of user of this open spaces and

roads accrued to public at large. No one can interfere in such

right. In view of this also, the attempt of the Municipal

Corporation to allow the layout owners to use open spaces for

further development was inappropriate and illegal. The

resolution of the Municipal Corporation for the reasons above,

cannot be said to be lawful. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO. 5044 OF 1999

 Vasantrao s/o Vinayakrao Deshmukh Vs Aurangabad Municipal Corporation

CORAM : A. V. NIRGUDE & V. L. ACHLIYA, JJ.

DATED : MARCH 5TH, 2015.

 (PER A. V. NIRGUDE, J.)

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Whether construction is permissible in open spaces left in approved building layout plans in residential zone?

     The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions.  {Para 22}

23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.                                  Supreme Court

JUSTICE MOHAN M. SHANTANAGOUDAR JUSTICE R. SUBHASH REDDY

Anjuman E Shiate Ali & Anr. Vs. Gulmohar Area Societies Welfare Group & Ors. etc.

CIVIL APPEAL NOS. 6216-6217 OF 2019

17th April 2020

Citation: 2020 SCC OnLine SC 373,2021(1) ALL MR 367 (S.C.)

Author: R. SUBHASH REDDY, J.

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Whether Municipal Corporation can lease out open space vested in it in layout to third party?

 Considering the provisions applicable to the present matter, keeping in view observations of the Hon'ble Supreme Court, we find that the Corporation does not have unfettered rights relating to open space. The Corporation has to use it for the purpose for which the space is left open. {Para 12}

13. In this regard, the petitioners have rightly pointed out the Circular issued by the Government of Maharashtra having Writ Petition No.4208/1998 No.TPB4396/114/C.No.89/96/NV.11, dated 10th June 1996. The Circular refers to misuse being done of such 10% open spaces handed over to public institutions. The Circular records that, to such open spaces, the first right is of the plot holders of the layout, because the plot holders have indirectly to the extent of their plots paid price to the owner of the plot even for the open space which was required to be left by the owner. It is stated that, even if from the open space 10% would be constructed for "Balak Mandir, Club Hall" etc., still such use should be made by the Corporation or jointly by the plot holders of the layout. The Circular requires forming of Co-operative Society/ Federation of plot holders of the lay-out. The proposal should be received from the Co-operative Society/ Federation of the plot holders and should be for common use. If Society/ Federation has not been formed, Registered Undertaking can be taken from plot holders to use the open space for the purposes specified. Such structure can be only for purposes of recreation. As per the directions issued by the State Government, the remaining space has to be left open permanently for the common use of the plot holders as a playground or garden or space for recreation. The Circular contains directions that it would be permissible for the Corporation to give such 10% open space to the Co-operative Society/ Federation of the plot holders on rent on such terms and Writ Petition No.4208/1998 conditions as mentioned in the Circular.

14. The above circular was issued on 10.6.1996, which was before the respondent Corporation passed resolution dated 30.3.1998 to give away the land to the respondent Club. There is no material to show that the Corporation made any efforts as were directed under the above Circular dated 10.6.1996.

15. This Court has, in the matter of "R.S. Pool Table & others Vs. The Aurangabad Municipal Corporation & ors."

(Writ Petition No.4335 of 2012), decided on 8th July 2014, held that, even where Corporation has to lease its land, it would be necessary to follow transparent procedure inviting tenders by issuing advertisement. In this matter, the Corporation cannot justify its action of simply receiving an application from a Club hardly two years old, managed by one of its Corporator and leasing out property, in violation of the Circular dated 10.6.1996, which had been recently issued at that time. In fact the Circular issued by State was specifically to curb leasing outs to such public institutions. Neither the Circular was resorted to nor any transparent procedure was followed for leasing out the land. In fact, as per direction Clause 'B' of the Circular, the only course open for the Corporation was to either lease out the open space to the Society/ Federation or develop the same itself.

Writ Petition No.4208/1998

16. For such reasons, the allocation of the open space made by the Corporation in favour of respondent No.3 and the impugned agreement dated 7.9.1998 is quashed and set aside.

Looking to the averments of the respondent No.3 that the petitioner No.1 was misusing the open space to park his vehicles etc., we record that it would be responsibility of the Municipal Corporation to ensure that the open space is kept open and for common use of the plot holders of the lay-out. The Corporation would be at liberty to take necessary steps as per the Circular referred and to ensure that open space is used strictly for the purpose for which it is left open under the bye-laws and shall take action against violation, if any.

Bombay High Court

Punjabrao Srihari Wadje And Anr vs Municipal Corpn. Aurangabad Thr. ... on 29 February, 2016

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Whether Municipal corporation can lease out out open space in layout without inviting tenders by issuing advertisement?

 This Court has, in the matter of "R.S. Pool Table & others Vs. The Aurangabad Municipal Corporation & ors."

(Writ Petition No.4335 of 2012), decided on 8th July 2014, held that, even where Corporation has to lease its land, it would be necessary to follow transparent procedure inviting tenders by issuing advertisement. In this matter, the Corporation cannot justify its action of simply receiving an application from a Club hardly two years old, managed by one of its Corporator and leasing out property, in violation of the Circular dated 10.6.1996, which had been recently issued at that time. In fact the Circular issued by State was specifically to curb leasing outs to such public institutions. Neither the Circular was resorted to nor any transparent procedure was followed for leasing out the land. In fact, as per direction Clause 'B' of the Circular, the only course open for the Corporation was to either lease out the open space to the Society/ Federation or develop the same itself.

Bombay High Court

Punjabrao Srihari Wadje And Anr vs Municipal Corpn. Aurangabad Thr. ... on 29 February, 2016

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Whether trespasser can claim that the land belongs to him based on the imposition of Non-agricultural tax and penalty on him?

 From the above it is clearly discernible that the N.A.

order does not give any entitlement of right or title to the plaintiffs in the suit open space. Needless to state that the open space belongs to one Dyanesh Kamlakar Samant as per the revenue record. Therefore it is beyond any reasonable doubt that the Plaintiffs are ranked encroachers in respect of the suit structures as well as the suit open space. The N.A. assessment order itself states that an application was made by Plaintiff Nos. 1 and 2 along with two others seeking to levy assessment in respect of the structures and the open space used by both for commercial purpose. The provision of section 45 of the MLRC

Act clearly envisage that it pertains to penalty for so using the land without permission of the Collector. The contents of the N.A. order levied penalty to the extent of ten times of the fine of the annual commercial assessment for the use of the structures and the open space. To construe that the N.A. order puts the Plaintiffs in settled possession and confers title on the Plaintiffs in respect of the open space is a fallacy and an erroneous proposition of law adopted by the Plaintiffs in their submissions. Such a position cannot be countenanced by the Court which requires to look at documentary evidence of title or existence of the names of the Plaintiffs in the primary revenue record pertaining to the suit land. In absence of any documentary evidence of title, the Plaintiffs' case of settled position and having right, title and interest conferred on the Plaintiffs by the N.A. order dated 26.01.2005 stands rejected.{Para 12}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER (ST) NO.4532 OF 2021

WITH

INTERIM APPLICATION (ST) NO.4533 OF 2021

Ramesh R. Pandey Vs Municipal Corporation of Greater Mumbai 

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : MAY 18, 2021

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Whether provisions of Maharashtra rent control Act is applicable if open space is given on lease with permission to make construction on it?

Appellant/defendant was inducted as tenant vide registered lease-deed dated 21st December, 1970 in the land bearing Survey No. 182, 182-A, C.T.S. No. 5923 to 5951 admeasuring 2086.04 sq.mtrs. ('Suit Property' for short). The lease was of open land and the lessee was permitted to raise construction with a rider that upon expiry of lease period, he shall remove construction at his own cost. Lease period was for 30 years, which came to end on 31st December, 2000. 

Thus, taking into consideration facts of the case and the law laid down by the Apex Court as well as by this Court in aforesaid two cases and for the reasons stated here-in-above, suit property was not "Premises" within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999 and, therefore, suit for eviction filed under the general law of the Transfer of Property Act, 1882 was maintainable and as such, provisions of the Maharashtra Rent Control Act were not applicable as the lease in question was for open plot. 

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

 Narendra Harilal Jethwa  Vs.  Bholadasji Mandir and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(6) MHLJ 885

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Whether provision of Maharashtra rent control Act is applicable if open space is given to tenant in which tenant has made construction?

1) The trial Court after considering the evidence on record held

that construction was carried out by the defendant and thereafter the

agreement dated 10.02.2005 at Exhibit 63 was entered into. After the

construction was made by the defendant, rights were conferred on him by

the plaintiff and the defendant was paying rent of Rs.400/per

month. It

was further held by considering the evidence on record that the defendant

was tenant of the open plot alongwith the structure standing thereon.

Thus, the provisions of the said Act were applicable and after finding that

the plaintiff had made out ground for eviction as pleaded, the suit came

to be decreed.

2) Referring to the agreement at Exhibit 63, it was submitted that on a plain

reading of the same, it was clear that on the entire plot admeasuring

1000 square feet, the defendant had erected construction to the extent of

10 Feet X 10 Feet at his expense and on the area admeasuring 6 Feet X

10 Feet a column alongwith plinth was constructed by the defendant.

The plaintiff agreed that whenever the constructed portion would be sold,

it would be only to the defendant and not anybody else. The property

was thus given to the defendant on monthly rent of Rs.400/.

3) On a plain reading of the aforesaid agreement it was clear that

the same was entered into after the construction in question was carried

out by the defendant and therefore the suit property was 'premises' as

defined under the said Act. The trial Court rightly held the suit to be

governed by the provisions of the Maharashtra Rent Control Act, 1999

and had rightly decreed the same. 

4) The observations in Kamla Devi (supra) to the effect that if a plot

with a structure is let out, the same would fall within the meaning of the

term “premises” but if an open plot is given without any structure, it

would not fall within the meaning of the term “premises” support the case

of the plaintiff. The evidence on record indicates the open plot along

with structure being let out to the defendant as per Exhibit 63. For same

reason, the ratio of the decision in Ram Sarup Gupta (supra) does not

assist the case of the defendant.

5) It is thus held that the appellate Court erred in holding that it

was only the open plot that was given on lease to the defendant and

hence the provisions of the said Act were not applicable. Instead, it is

held that portion of the open plot alongwith structure standing thereon

had been given to the defendant at monthly rent of Rs.400/.

The subject

matter of the suit was premises within the meaning of Section 7(9) of the

said Act. The suit was therefore, maintainable and adjudication on merits

was necessary.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CIVIL REVISION APPLICATION No. 51/2018

Shaikh Wasim Shaikh Ismail, Vs Mohammad Faiyyaz Noor Mohammad,

CORAM : A.S. CHANDURKAR, J.

DATED:  02 TH NOVEMBER, 2018

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Whether lessee can seek protection of Maharashtra rent control Act if construction was to be removed after expiry of lease period?

 On the date of expiry of the lease period, i.e. on 31st December, 2003, the Rent Control Legislations were not in force as the same was repealed by provisions of Section 58(1)(b) of Maharashtra Rent Control Act, 1999 with effect from 31st March, 2000. In the given set of facts, the learned Judge has held thus;

"It is not in dispute that the leases in respect of open land are not governed by the provisions of the Maharashtra Rent Control Act Hence, the only remedy available was to file a suit invoking the ordinary jurisdiction of a Civil Court for eviction of tenant and for possession under the general law of the Transfer of Property Act, and neither the provisions of the Rent Control Legislations, nor the provisions of the Maharashtra Rent Control Act were applicable, as the lease in question was for the open land."

19. Thus, taking into consideration facts of the case and the law laid down by the Apex Court as well as by this Court in aforesaid two cases and for the reasons stated here-in-above, suit property was not "Premises" within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999 and, therefore, suit for eviction filed under the general law of the Transfer of Property Act, 1882 was maintainable and as such, provisions of the Maharashtra Rent Control Act were not applicable as the lease in question was for open plot. Questions are answered accordingly.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

Narendra Harilal Jethwa Vs. Bholadasji Mandir and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: AIR 2019(NOC) 648 Bom

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Whether Suit for eviction of a tenant from an open plot of land is tenable U/S 41 of Presidency small cause Act?

In the facts of the case, it is clear that the applicant was not granted any tenancy which would include some part in the building along with the open plot of land. It is only the open plot of land which has been independently let out and thus the contention as urged on behalf of the applicant that the word 'appurtenant' is required to be read as forming part of the building, with which the applicants have no connection whatsoever cannot be accepted. If this contention is accepted it would also amount to accepting something which is completely alien to the facts on record namely that the tenancy which is granted to the applicant is in respect of the open plot and no other premises in the building. The contention of Mr. Jahagirdar that it is a open plot within the compound wall and being an open space compulsory required to be maintained under the municipal laws also cannot be accepted. Such a hypothesis, contrary to the agreement of tenancy which is only in respect of open plot of land, is totally untenable. This submission of Mr. Jahagirdar does not have any foundation on the facts and the evidence on record. Also the contention as urged on behalf of the applicant that the premises in question are commercial premises and therefore, the open ground as let out to the applicant would be required to be treated as 'appurtenant' to the building cannot be accepted, in view of the clear definition of the 'premises' under section 7(9) of the Act. The submission in fact again goes contrary to the agreement of tenancy and the admitted position that what was let out is the open plot of land. The learned counsel for the respondents would be justified in placing the reliance on the Division Bench of this Court in Morarji Goculdas Deoji Trust & Ors. vs. Madhav Vithal Kudwa (supra) where the Court has interpreted the word 'appurtenant' though under the provision of section 5(8)(b) of the Bombay Rent Act, the Court had observed that the word 'appurtenant' has a distinct and definite meaning, it would import nothing more than what is strictly pertaining to the subject matter of the grant. 

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 358 of 2015

Decided On: 08.01.2018

Auto Hirers and Ors. Vs.  Commerce Centre Cooperative Society Ltd.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(3) MHLJ 942

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Whether tenant is liable to be evicted if he puts structure on open space adjoining to tenanted premises?

 I agree with the view taken by the learned judges of the appellate Bench of the Small Cause Court that the premises appurtenant to the rented premises are certainly part of the premises themselves let out to the tenant. In my opinion, the contrary view will lead to certain anomalies, for example, the tenant who is occupying the premises, is using the passage for going and if a decree is passed against him for delivery of possession of a room which he is occupying he may as well occupy the passage itself and say that the Rent Court has no jurisdiction to evict him, which situation, I do not think, is contemplated by the legislature while using the expression "erection of permanent structure on the premises". In my opinion, in order to give a realistic meaning to the provisions, it will have to be held that any structures or additions made to adjoining space will have to be treated to have been made as a part of the premises appurtenant to the tenanted premises or as a part of space which is necessary for beneficial enjoyment of rented premises. I, therefore, think that the contention of the learned Counsel for the petitioner in this behalf is not well founded.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 1157 of 1981

Decided On: 15.11.1984

Shridhar Govind Natu Vs. Ankush Krishnaji Sawant

Hon'ble Judges/Coram:

S.J. Deshpande, J.

Citation: 33 Bom RC 1986

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Whether court should see merits of amendment while allowing amendment of plaint in rent suit?

The whole basis of the defendant's opposition to the amendment application and in fact, in support of its case for rejection of plaint under Order 7 Rule 11(d) of the Code, is that the plaint, on the face of it, shows that the suit is not maintainable under the provisions of the Maharashtra Rent Control Act under which it is purportedly filed. It is submitted that an open plot of land cannot be termed as 'premises' so as to bring the suit for eviction in respect of such plot of land within the jurisdiction of the Small Causes Court under Sections 15 and 16 of the Maharashtra Rent Control Act. On the face of it, however, the plaint does not indicate that the suit premises, which is said to be tenanted by the defendant, is an open plot of land, though the averments made in this behalf in the plaint are somewhat vague. In the very opening portion of the plaint, while describing the suit property, the following words are used:

"On the said pot owned by the plaintiff there are various structures in certain portions and defendant is occupying a portion of the said plot (which?) admeasures about 36,000 square feet along with other Firms of defendant's family." (sic.)

Though vague, this statement cannot be said to mean that the plaintiff has come to the Court with a specific case that the suit premises consists of an open plot of land. In fact, even the defendant does not suggest that in its application under Order 7 Rule 11(d) of the Code. The defendant, in its application (paragraph 4), in terms, submits that "....the notice issued by the plaintiff and the plaint are silent as regards the type of premises given on rent to the Defendant." and further "it is no where mentioned in the entire plaint that whether the premises given on rent to the present Defendant are constructed premises or open piece of land or a temporary structure." It is one thing to say that the plaint does not take up a definite position on the nature of the premises, whether an open plot or constructed premises or temporary structure, and quite another to say that the plaintiff has come to the Court with a specific case that the suit premises consists of an open plot of land.

7. The plaintiff merely wants to rid the plaint of this vagueness by incorporating a specific averment in the description that the suit premises consists of a plot of land with structure. In the premises, there is no infirmity in the impugned order allowing the amendment.

8. In the case of Zohra Khatoon decided by Calcutta High Court, the Court was of the view that it inherently lacked jurisdiction to entertain the suit. The suit was in respect of lands which fell outside the territorial jurisdiction of the Court. The Court was of the view that granting of an amendment, which would have permitted the plaintiff to delete various prayers in the plaint so as to bring the suit within the jurisdiction of the Court, would be impermissible, since granting of such amendment postulates an authority in the Court to entertain the suit, in the first place. It is not necessary for me to express any opinion on the propositions laid down by Calcutta High Court in that case. Suffice it to say, for the purposes of the present application, that there is no such case here. Here, as we have noted above, from the description of the suit property in the plaint, it could not be said that the Court inherently lacked jurisdiction to entertain the suit. At best, the description of the suit property in the plaint could be said to be vague and it was precisely to do away with this vagueness that the amendment was sought to be introduced and therefore, rightly allowed by the Court.

9. Even otherwise, a suit for eviction for arrears of rent in a case, which is not covered by the provisions of the Rent Control Act, would, under the provisions of the Transfer of Property Act, lie before the same Court, though on a different basis, that is to say, under Section 106 of the Transfer of Property Act and not under Sections 15 and 16 of the Maharashtra Rent Control Act. Even on that reasoning, it cannot be said that the Court inherently lacks jurisdiction to entertain the suit.

10. Learned counsel for the petitioner (original defendant) submits that the amendment takes away his client's right to have the plaintiff non-suited on account of the suit premises falling outside the definition of "premises" under Section 7(9) of the Maharashtra Rent Control Act. I am afraid learned counsel is not right even there. Whether the suit premises consists of an open plot, as suggested by the defendant, or is land appurtenant to the structure, as claimed by the plaintiff, is a matter of merit to be decided in the suit. If the defendant is right in its defence that the suit premises is nothing but an open plot of land, the plaintiff would be non-suited on his case of eviction under Sections 15 and 16 of the Maharashtra Rent Control Act and possibly also, on his case for eviction under Section 106 of the Transfer of Property Act, though this Court need not express its final opinion on that question.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3729 of 2017

Decided On: 04.09.2017

Bharat Travellers Vs. Sumitrabai Vinayakrao Buty

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2017(6) MHLJ 703

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Whether recovery of dead body from deserted building will amount to recovery from open space?

Next significant circumstance against appellant is
that pursuant to information given by accused Arif under
Section 27 of the Evidence Act with regard to dead body
(Exhibit P-65) and similar information given by accused Sunil
Panchal(Exhibit P-66), the police immediately reached the
place where from they recovered dead body of Abhishek vide
Exhibit P-17 at 8.00 P.M. on 14.03.2005 itself which heither to
remained untraceable. We are not inclined to countenance
the argument that since recovery of dead body was made
from open place, no new fact can be held to have been
discovered at the instance of the accused. Rajendra
ojha(P.W.24), the investigating officer has made it clear that
it was a deserted multi storied building, which normally no
one visits. Such unfurnished multi storied deserted building
can by no stretch of reasoning be descried as an open place.
Moreover, as per the post mortem report, duration of death
was 72 to 120 hours. The fact that no one could notice the
dead body lying there even for so long, only reinforces the
conclusion that the dead body could be recovered only on the
basis of information furnished by the accused under Section
27 of the Evidence Act. Solely because information memos,
arrest memos and information memo and seizure memo of
motorcycle and STD slip mentioned offence under Section 302
IPC, which were prepared an hour or so prior to preparation
of recovery memo of dead body at 8.00 P.M. on 14.03.2005
could not render this significant stage of investigation asdoubtful. On the information given by the accused
immediately after their arrest, if the police had come to
know about murder of abducted boy and mentioned offence
under Section 302 IPC in the aforesaid memos, the same was
quite natural and there was nothing unnatural in what the
police did at that time.
The Supreme Court in State of Maharashtra Vs.
Damu Gopinath Shinde, AIR 2000 SC 1691(supra) has
observed that the basic idea embedded in Section 27 of the
Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any
fact is discovered in search made on the strength of any
information obtained from the accused, such a discovery is
guarantee that the information supplied by the accused is
true. The information might be confessional or non
inculpatory in nature, but if it results in discovery of a fact, it
become reliable information. Therefore, the law permits
such information to be used as evidence by restricting the
admissible portion to the minimum. Relying on the judgment
of Privy Council in Pulukuri Kottayya Vs. Emperor, AIR
1947 PC 67, the Supreme Court held that “fact discovered”
envisaged in the section embraces the place from which the
object was produced, the knowledge of the accused as to it,
but the information given must relate distinctly to the effect.
Minor discrepancies in the investigation cannot be
a reason to discard the entire prosecution case. The Supreme
Court in State Govt. of NCT of Delhi Vs. Sunil & Another,
(2001) 1 SCC 652 held that mere absence of independent
witness when investigating officer recorded the statement of
the accused and the article was recovered pursuant thereto is
not sufficient ground to discard the evidence. Evidence of
police officer regarding the recovery at the instance of the
accused should ordinarily be believed. Official acts of police
should be presumed to be regularly performed. Archaic
notion to approach actions of police with initial distrust
should be discarded. Even if, for the present we do not
believe the factum of recovery of silver chain and silver
amulet at the instance of the accused-appellant Sunil
Panchal, because as per Niranjan Gautam(P.W.13), police
photographer, he saw them lying on the floor near the dead
body on 14.03.2005 and took pictures of the same which are
Exhibits P-28, P-32 and P-33, there is otherwise enough
evidence on record which points to the guilt of the accusedappellants
and none else. Since discovery of the place where
the dead body was found was made pursuant to information
given by the accused under Section 27 of the Evidence Act,
which eventually led to recovery of dead body of the
abducted boy, recovery of silver chain and silver amulet from
that place then even, as per testimony of Niranjan
Gautam(P.W.13) relied by the defence, could also be read
against the accused-appellants. Moreover, cricket bat was
also recovered at the instance of accused Arif vide Exhibit P-
59. Mere non-mention of these articles in the missing person
report and first information report may not be a reason to
hold that they did not belong to the deceased, particularly
when they have been identified by his father, Subroto
Mukherjee(P.W.3) in the proceedings conducted by HariMohan Gupta(P.W.15). 

REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.

D.B. CRIMINIAL APPEAL NO. 151/2007

SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.

DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj

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Presumption of possession over an open land always is deemed to be that of owner and not of a trespasser

The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession.

The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.

Equivalent Citation : AIR 1998 Guj 17

IN THE HIGH COURT OF GUJARAT

Second Appeal No. 137 of 1985

Decided On: 10.04.1997

Navalram Laxmidas Devmurari
Vs.
 Vijayaben Jayvantbhai Chavda

Hon'ble Judges/Coram:
J.M. Panchal, J.

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Whether municipal corporation can acquire ownership right in open space of layout which was given to it for management?

The finding of the High Court that such condition did not amount. to transfer of ownership but it was only a transfer of the right of management cannot be accepted. The two rights, namely, of ownership and of management, are distinct and different rights. Once a vacant site is transferred in favour of another free of cost then the person transferring it ceases to be owner of it. Whereas in transfer of right of management the ownership continues with the person to whom the property belongs and the local authority only gets rights to manage it. But the conditions imposed by the Standing Committee clearly meant to transfer the ownership in favour of the Corporation. The Corporation as custodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such amenities but whether such a provision can entitle a Corporation to claim that such property should be transferred to it free of cost appears to be fraught with insurmountable difficulties. The law does not appear to be in favour of the Corporation. Public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and school then he was not acting against public interest. This cannot be stretched to create a right and title in favour of a local body which utmost may be entitled to manage and supervise only.

Supreme Court of India

Pt.Chet Ram Vashist vs Municipal Corporation Of Delhi on 26 October, 1994

Equivalent citations: 1995 AIR 430, 1995 SCC (1) 47

JT 1994 (7) 159 1994 SCALE (4)695

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Whether municipal corporation can direct land owner to surrender open space to it while sanctioning layout?

None of its provisions entitled the Corporation to claim any right or interest in the property of the owner. Sub-section (3) empowers the Standing Committee to accord sanction to the layout plan on such conditions as it may think fit. The expression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. The Corporation has been given the right to examine that the layout plan is not contrary to any provision of the Act or the rules framed by it. For instance a person submitting a layout plan may be required to leave certain open space or he may be required that the length and width of the rooms shall not be less than a particular measurement or that a coloniser shall have to provide amenities and facilities to those who shall purchase land or building in its colony. But the power cannot be construed to mean that the Corporation in the exercise of placing restrictions or imposing conditions before sanctioning a layout plan can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favour of the Corporation free of cost. That would be contrary to the language used in the section and violative of civil rights which vests in every owner to hold

his land and transfer it in accordance with law. The resolution passed by the Corporation directing the appellant to transfer the space reserved for tubewells, school and park in its favour free of cost was depriving the owner of his property and vesting it in the Corporation against law. 

Supreme Court of India

Pt.Chet Ram Vashist vs Municipal Corporation Of Delhi on 26 October, 1994

Equivalent citations: 1995 AIR 430, 1995 SCC (1) 47,JT 1994 (7) 159 1994 SCALE (4)695

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Whether ownership in open space can be vested or transferred to Municipal Council on payment of compensation of Re. 1/- ?

Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 183 - Standardised Building By-laws and Development Control Rules for 'A' Class Municipal Councils of Maharashtra - By-law No. 14 - Constitution of India, 1950 - Article 300-A - Open spaces - Rule provides for laying out new streets and not open spaces - Municipal Council has power only to acquire land under streets and not open spaces - No person can be deprived of his property save by authority of law.

Held:

Rule 14 appears to have been framed in furtherance of Section 183 of the Act which relates to laying out or making of new streets. It nowhere provides for the open spaces. Therefore, the power, if any, of acquiring the land under the streets is only contemplated under Section 183. Acquisition of open spaces is not contemplated under Section 183. Rule 14.3 which is a delegated legislation cannot, confer a power of acquisition of the open space under the lay out. Under Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law. The authority of law means by or under any law made by a competent Legislature. No law made by the Legislature was shown under which the ownership in the open space could be vested or transferred to the Municipal Council whether by payment of compensation of Re. 1/- or otherwise.

Bombay High Court

Vrajlal Jinabhai Patel, Since ... vs State Of Maharashtra And Ors. on 29 August, 2002

Bench: B Marlapalle, D Karnik

Citation: 2003(4)ALLMR299, 2003(105(1))BOMLR223, 2003(3)MhLj215

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