D.R.Patil vs State Of Maharashtra And Ors
2009 Latest Caselaw 114 Bom

                                                                                     1




                                                                              
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATEJURISDICTION




                                                      
                   WRIT PETITION NO.3068 OF 2009


    D.R.Patil                                   .. Petitioner




                                                     
           Versus
    State of Maharashtra and Ors.               .. Respondents

    Mr.R.S.Apte, Senior Advocate with Samir Vaidya, Ms.Gulestan Dubash,
    Ms.Sakshi Deokar for petitioner




                                         
    Mr.S.R.Nargolkar, A.G.P. For State
    Mr.Bhalchandra Palav i/b. M/s.Amarchand Mangaldas & S.A. Shroff &
                           
    Co. for respondent No.4
    Mr.Nitin Thakkar, Senior Advocate i/b. C.N.Gole for respondent No.5
    and for applicant in C.A. 1054 of 2003
                          
    Mr.G.D.Utangale i/b. M/s.Utangale & Co. for respondent No.3.
           

                                    CORAM : SWATANTER KUMAR, C.J.
                                                      &
        



                                             DR.D.Y.CHANDRACHUD
                                                      &
                                             S.C.DHARMADHIKARI, JJ.

                      Reserved on            : 14th December 2009

                      Pronounced on          : 16th December 2009.





    ORAL JUDGEMENT (Per Dharmadhikari, J)


    1]    This petition has been placed before the Full Bench of this Court in

pursuance of the order of the Division Bench dated 18th March 2009.

Pursuant to the order dated 9th Aprril 2009, the entire writ petition has

been placed before us along with the applications. We had also directed

notice to be issued to Learned Advocate General and learned Assistant

Government Pleader (A.G.P) appearing for the State accepted notice on

behalf of learned Advocate General.

2]

By this petition under Article 226 of the Constitution of India, the

petitioner is challenging the Government Resolution (G.R. For short)

dated 15th November 2007. Although, the other relief pertain to the

orders of the Slum Tribunal, passed in the year 1999-2000, the learned

Senior Counsel appearing on behalf of the petitioner confined his

arguments to the challenge to the G.R. Dated 15th November 2007. Thus,

he sought reliefs in terms of prayer clauses (a)(i) and (b) of the petition.

3] This petition has been filed by the petitionerr proclaiming himself

to be the Chief Promotor of proposed Cooperative Housing Society. The

First respondent to this petition is State of Maharashtra, second

respondent is the High Powered Committee set up under the

aforementioned G.R. The third respondent is the Vice President of

Maharashtra Housing and Area Development Authority and Member of

respondent No.2, High Powered Committee. Respondent Nos. 4 to 6

have been impleaded as formal parties.

4] From the statements made in para 1(a) so also para 2, the principal

challenge is to this G.R. The factual background is that a lease in respect

of certain plots was granted by the Brihanmumbai Municipal Corporation

to one Birla Industries Group Charitable Trust. This is a registered Trust.

5] It is stated that upon the Maharashtra Slum Areas (Improvement,

Clearance and Re-development) Act, 1971 (for short Slum Act) being

enacted, the then promotor of one Indira Society submitted a scheme for

development of Slum on the said plots which were leased to the Trust.

The Corporation intimated that the scheme cannot be implemented since

the land was in possession of the Trust and they were the lessees.

Thereafter, it is stated that the lease and transfer in favour of the Trust

came to be challenged by the said Indira society in the City Civil Court

and, thereafter, it is stated that the present petitioner intimated on 13th

November 1995 to the said Trust that he is desirous of developing the

land and addressed a letter for development of the plot as a notified slum.

The Municipal Corporation then called upon the petitioner to submit a

detailed plan and seek no objection from the Trust. The petitioner called

upon the Trust to give its no objection and the NOC came to be received

some time in July 1996.

6]

The petitioner states that on 18th November 1997, the S.R.A.

Granted qualified approval to Indira society to develop the land pending

NOC from the Trust.

7] It is alleged that the Slum Rehabilitation Authority (SRA) with an

intention to defraud the petitioner, in collusion with Indira society,

approved the SRA scheme and the petitioner took inspection of the

records in that behalf. However, when the petitioner submitted site plan

and location in respect of the first proposed SRA scheme to Corporation,

the Corporation issued a letter in his favour stating that it could go ahead

with the development. Thereafter, the petitioner entered into a tri-partite

agreement with two other entities for development of the plot. He

received Annexure -II on 30th March 1998 and the petitioner was

permitted to go ahead with the scheme. The NOCs were granted by the

Trust based upon which the Letter of Intent (LOI) was sought from the

SRA but before the scheme could be approved by SRA it had issued

notice to Indira Society. Finally, it is stated that the obstacle was removed

and the scheme of the petitioner was approved by the SRA. However,

Indira society, not being satisfied with the scheme and in its attempt to

dislodge the petitioner, raised several objections and obstacles.

Ultimately, the lease in favour of the Trust was also terminated. In the

meanwhile, Indira society approached Slum Tribunal which had passed

an order, which although challenged, the same is ultimately, not pressed.

8] It is not necessary to advert to the other facts, inasmuch as

Mr.Thakkar, learned Senior Counsel on behalf of respondent No.5 raised

a preliminary objection to the maintainability of this petition. He pointed

out that the conduct of the petitioner is such that this Court should not

grant him any equitable and discretionary relief. Mr.Thakkar submitted

that the petitioner has suppressed relevant and material facts from this

Court. Mr.Thakkar submits that even if a constitutional challenge is

raised, ultimately, if the conduct of the party approaching the court is not

honest and truthful and is not above board, then, the Court is not obliged

to go into such challenge. Mr.Thakkar has invited our attention to the

affidavit in reply filed on behalf of respondent No.5 and contended that

this petitioner had earlier filed W.P.No.2284 of 2007 in this Court against

State of Maharashtra, S.R.A. And Ors., inter alia, for the following

reliefs:-

"(a) by an appropriate writ, order or direction of this Hon'ble

Court the impugned grant of approval to the Rehabilitation

Scheme submitted by respondent Nos. 7 to 11 to respondent

Nos. 3 to 6 as regards the Plot Nos.88 to 104 Town Planning

Scheme, CS No.33, 35, 65, 66 and 41 Worli Scheme 58, Worli,

Mumbai be cancelled;

(b) by an appropriate writ, order or direction of this Hon'ble

Court all the concerned officers of respondent Nos. 3 to 6 be

dealt with from granting impugned grant of approval to the

Rehabilitation Scheme submitted by Respondent Nos. 7 to 11

to respondent Nos. 3 to 6 as regards the Plots No.88 to 104

Town Planning Scheme SC No.2.33, 35, 65, 66 and 41 Worli

Scheme 58, Worli, Mumbai on the basis of false, forged and

bogus affidavits and individual agreements of the slum

dwellers of the said plots submitted by respondent Nos. 7 to

11;

(c)

by an appropriate writ, order or direction of this Hon'ble

Court respondent Nos. 7 to 11 be dealt with for submitting

false, forged and frivolous affidavits and individual

agreements of the slum dwellers as regards plot Nos. 88 to 104

Town Planning Scheme C.S. 33, 35, 65, 66 and 41 Worli

scheme 58, Worli, Mumbai for the grant of approal to the

rehabilitation scheme submitted by them to respondent Nos. 3

to 6 and on the basis of false, forged and bogus affidavits and

individual agreements of the slum dwellers of the said plots

obtained the approval to the said scheme."

9] In that writ petition all the contesting parties filed their affidavits

and it was placed for admission before the Division Bench of this Court,

who after hearing both sides by its order dated 5th December 2007 held

that the controversy in the writ petition is essentially required to be

decided by High Powered Committee constituted by the Government of

Maharashtra in furtherance to the Full Bench Judgement and order passed

by this Court in the case of Tulsiwadi Navnirman Cooperative Housing

Society, reported in 2007 (6) Mh.L.J. 851 (for short Tulsiwadi). The

Division Bench directed the present petitioner to approach High Powered

Committee and further directed the High Powered Committee to decide

the petitioner's case in accordance with law. The petitioner, thereafter,

filed Appeal No.3 of 2007 before the High Powered Committee. He filed

affidavits and compilation of documents and even the contesting parties

filed their replies. Several hearings were held before the High Powered

Committee and the matter was adjourned. However, when the matter was

before the High Powered Committee on 4th April 2009, an adjournment

was sought on the ground that the petitioner is not present, his advocate is

not present but one office bearer produced a copy of the letter written to

the Committee seeking adjournment on the ground that a Notice of

motion being Notice of Motion No.78 of 2009 is pending in this Court.

That is a notice of motion in Writ Petition No.1762 of 2006 and in that

notice of motion, the petitioner herein prayed for stay of hearing before

the Committee. In the light of this request, the High Powered Committee

adjourned the matter to 9th April 2009 and on 9th April 2009, both the

petitioner and Advocate were absent before the Committee. The

Committee was informed by the petitioner's same representative that the

present petition is filed and that is listed before the Full Bench at 3.00

p.m. On 9th April 2009. Therefore, he sought an adjournment. Our

attention was also invited to a notice of motion being Notice of Motion

No.36 of 2009 seeking recalling of the order dated 5th December 2007 in

W.P. 2284 of 2007. This petition was filed by the petitioner himself and

which came to be disposed of by the Division Bench with the aforesaid

observations and directions. When this notice of motion was placed

before a Division Bench of this Court on 2nd February 2009, it was of the

view that the motion is not maintainable. Therefore, the notice of motion

came to be withdrawn with liberty to file appropriate proceedings.

Mr.Thakkar submits that when the petitioner has not challenged the order

dated 5th December 2007 in his own petition by approaching the Hon'ble

Supreme Court and instead he abided by the said order and filed an

appeal before the Committee, submitted to its jurisdiction, then, he cannot

now turn around and challenge its constitution by impugning the subject

GR. More so, when even the review/ recall of the order dated 5 th

December 2008 is not pressed.

10] Mr.Apte, learned Senior Counsel appearing for petitioner on the

other hand contended that the petitioner is not estopped in law from

challenging the GR inasmuch as what the petitioner is challenging is

setting up of the High Powered Committee by the Government itself.

Mr.Apte submitted that the Constitution of the Committee and challenge

to the GR is a relief which can never be sought before the Committee.

The Committee is a creature of the GR itself. It cannot decide the issue

of the legality and constitutionality of the GR. Once it is set up under this

GR itself, then, the challenge to the GR is a question which cannot be

decided by the Committee. Therefore, this petition is maintainable.

11] Mr.Apte further submitted that the challenge to the GR arises in the

backdrop of the Constitutional provisions outlining the separation of

powers between Legislature, Executive and Judiciary. Mr.Apte submits

that in the garb of resolving the conflict between the two judgements of

two different division benches of this Court and considering the ambit

and scope of the powers of the State Government vide section 3K of the

Slum Act, this Court cannot take upon itself the Legislative powers. This

Court cannot direct setting up of any Monitoring Agency or committee.

This Court cannot in the absence of any amendment to the Legislation by

the Competent Legislature direct that disputes and differences between

several parties to a SRA scheme should be decided by a Committee and

confer upon the committee judicial powers. This is a clear case where

this Court has usurped the powers of the Legislature and in any event, by

appointing the Committee, it has taken over the executive function.

Assuming that such a committee can be set up by the State Government

under Article 162 of the Constitution, yet, the GR itself states that the

Committee is set up, pursuant to the directions of this Court in the Full

Bench decision. Therefore, the constitution of the Committee is bad in

law and challenge to the same is, therefore, maintainable.

12] Mr.Apte has relied upon several decisions of the Supreme Court on

the ambit and scope of Article 50 of the Constitution of India and the

Doctrine of Seperation of Powers. Mr.Apte has also invited our attention

to the relevant paras of the Full Bench judgement in Tulsiwadi case and

contended that the same would demonstate that it is this Court which

directed setting up of a Committee and it is not the Act of the

Government. Therefore, this petition be allowed.

13] Mr.Nargolkar, learned A.G.P., appearing on behalf of the State

contended that the Committee is not set up pursuant to the directions of

this Court in the Full Bench decision. The GR may be referring to the

observations and directions but that is a preface. The decision to set up a

Committee is taken by the Government itself. It is the Government's

decision to set up a committee and it may be that the Government has

taken into consideration the observations and directions in the Full Bench

decision. In any event, it is not the directions of the Full Bench which led

to the constitution and setting up of the Committee. The Full Bench

recorded a statement of the learned Advocate General appearing that the

State would set up a monitoring agency / High Powered Committee

comprising of officials from concerned and relevant statutory bodies.

Once the statement is made by the Advocate General, then, the State is

bound to abide by it. Any statement of the Advocate General is binding

on the State. The GR is, therefore, nothing but a decision of the

Government in exercise of its Constitutional Powers, setting up the

Committee and outlining its duties and powers. Therefore, when wide

powers are conferred on the State under the Slum Act to set up such a

Committee and even otherwise its executive powers permitting it to do

so, then, the petitioner cannot be heard to say that the GR is bad in law,

unconstitutional, null and void. The mechanism in the form of a

committee is devised and set up pending suitable amendment to the

Legislation and, therefore, the State was competent to issue the GR

setting up the Committee.

14] We have carefully considered these submissions. We have also

perused the petition, its annexures, relevant statutory provisions and the

decisions brought to our notice. As is evident from the orders passed on

this petition, the entire petition is referred to the Full Bench. The order

dated 18th March 2009 does not frame any specific question or refer a

particular issue for decision by a larger bench. All that the Division

Bench states is that the present petition raises a challenge to the GR

setting up High Powered Committee and, therefore, it is appropriate that

the matter is placed before the very same Full Bench. In such

circumstances and in the light of our order passed on this petition, the

petition is taken up for admission by consent of parties.

14] From a perusal of the petition and the annexures thereto so also the

affidavits placed on record we find much substance in the preliminary

objection of Mr.Thakkar. While it is true that a party is not estopped from

challenging an action or decision of the State on the ground that it

violates a constitutional provision, merely because it abides by or acts in

furtherence of such action or decision, yet, in the peculiar facts of this

case, we are of the opinion that the challenge to the constitution of High

Powered Committee and the GR dated 15th November 2007 cannot be

entertained at the instance of this petitioner. This petitioner had filed Writ

Petition No.2284 of 2007 in this Court and we have already reproduced

the reliefs that are sought in the petition. When that petition was placed

before the Division bench of this Court on 5th December 2007, the

following order came to be passed:-

"We have heard learned Counsel appearing for the parties at some length. We are of the considered view that

looking to the prayers made in this petition and the factual controversy raised by the parties, the present writ petition

essentially has to be referred to the Committee constituted by the Government in furtherance to the Full Bench judgement of this Court dated 1st November 2007 in Writ Petition No.1326 of 2007 (Tulsiwadi Navnirman Coop., Housing Society Ltd. &

Anr Vs. State of Maharashtra & Ors) and other connected writ petitions.

Thus, we direct the petitioner to approach the

Committee within two weeks from today and the Committee shall proceed and decide the matter in accordance with law

after hearing all the affecting parties. We do hope that the Committee do so expeditiously."

15] The aforequoted order of the Division Bench refers to the Full

Bench decision dated 1st November 2007 in W.P. 1326 of 2007 and

connected matters (Tulsiwadi) and constitution of High Powered

Committee in furtherance of this decision. The Division Bench directed

the petitioner to approach, within two weeks from the date of this order,

the High Powered Committee. It further directed the Committee to

decide the matter in accordace with law after hearing all affected parties.

Thus, the dispute raised by the petitioner on merits and the entire factual

controversy in W.P.2284 of 2007 was referred for decision to this

Committee. This Court was of the opinion that the controversy being

factual the matter can be resolved by the Committee. The petitioner

accepted this decision. He acted in pursuance thereof and approached the

Committee by filing Appeal No.3 of 2007. The petitioner not only

appeared before the Committee but filed documents and affidavits. The

Committee issued notices to all affected parties and even called for their

response. The Committee was proceeding with the appeal and in the

midst of the same, the petitioner sought adjournment and filed, firstly the

notice of motion bearing No.36 of 2009 seeking recall of the order of the

Division Bench and subsequently filed a notice of motion being Notice of

Motion No.78 of 2009 in W.P.No.1762 of 2006. He withdrew the request

to recall the division bench order. In other words, he withdrew the Notice

of Motion No.36 of 2009 in W.P.2284 of 2007. There is a writ petition

filed by Birla Industries Group Charity Trust versus State, SRA and

others. Respondent No.7 in that petition is the present petitioner. He

sought relief that during the pendency and final hearing of the present

petition, the proceedings before the Committee be stayed. It is pointed

out to us that the notice of motion No.78 of 2009 is pending before this

Court. That is a notice of motion moved by the present petitioner in

February 2009 and to be precise on 16th February 2009. The instant

petition is filed in this Court on 6th March 2009. In the memo of this

petition, the petitioner has not disclosed that he has moved the

aforementioned notices of motions. He states nothing, beyond annexing

a copy of the order dated 5th December 2007 in his own writ petition No.

2284 of 2007.

16] Even if the constitutional challenge is raised, the conduct of the

party raising it is a relevant factor. If the conduct is of such a nature as

would disentitle him from invoking the discretionary and equitable

jurisdiction of this Court under Article 226 of the Constitution of India,

then, at his instance, the constitutional challenge need not be considered.

This Principle is fairly well settled. (See Pannalal Binjraj Vs. Union of

India, A.I.R. 1957 SC 397 and Chancellor Vs. Bijayanand Kar, A.I.R.

1994 S.C. 579). It is equally well settled that a person who has received a

benefit under a statute is not entitled to challenge its Constitutional

validity (See A.I.R. 1953 S.C. 384 Nain Sukh Das Vs. State of U.P).

Further, the Jurisdiction of High Court under Article 226 of the

Constitution is not intended to facilitate avoidance of obligations

voluntarily incurred. (See A.I.R. 1975 SC 1121 Har Shankar Vs.

Dy.Excise and Taxation Commissioner) The Petitioner does not dispute

that this petition is filed invoking article 226 of the Constitution of India.

The petitioner does not dispute that when his earlier petition No.2284 of

2007 came up before the Division Bench on 5th December 2007, both the

Full Bench decision and the GR was in the field. The petitioner does not

dispute that despite this, he did not challenge the GR and instead accepted

the decision of this Court to approach the Committee set up in pursuance

of this GR. Therefore, he on his own submitted to the jurisdiction of the

Committee and abided by the decision of this Court. That decision has

gained finality because the order dated 5th December 2007 passed by this

Court, has not been challenged further. Even the request to recall or

review it is not pressed. In such circumstances, the petitioner cannot turn

around and in the garb of a constitutional challenge, seek to resile from

the binding decision and order of this Court. The order dated 5th

December 2007 binds the petitioner, to say the least. Having been bound

by it, at his instance, the challenge to the GR dated 15th November 2007

cannot be entertained. More so, when the petitioner has suppressed

withdrawal of his notice of motion for recalling/ reviewing the order of

the Division Bench in W.P.No.2284 of 2007. Further, he suppressed

filing of Notice of Motion No.78 of 2009 in the pending writ petition of

the respondent No.4 to this petition, viz., W.P. 1762 of 2006. The

prayers in that motion and the present prayer for stay in this petition is

identical. In such circumstances, the petitioner has suppressed relevant

and material facts from this Court.

17] One very disturbing factor in this case is that the present petitioner

has filed his earlier petition on the Original Side of this Court. The

present petition has been filed by him on the Appellate Side. It is clear

from the Rules that this Court can take cognisance of a writ petition under

Article 226 in its Civil Appellate Jurisdiction, if the cause of action arises

outside Greater Mumbai. In the instant case, on the own showing of the

petitioner the cause of action has arose within Greater Mumbai. The

subject matter of the writ petition is an immovable property at Greater

Mumbai. All respondents are amenable to the Ordinary Original Civil

Jurisdiction of this Court. Therefore, the writ petition could not have

been filed on the Appellate Side. A very serious complaint is made by

Mr.Thakkar against the petitioner of forum shopping. This also cannot be

over looked. The petitioner has no explanation for such an act on his

part. He offers no explanation save and except urging that there is no

estoppel against constitution and law. However, once we find that the

petitioner's conduct is blame worthy and the present proceedings are

nothing but an absue of the process of this Court, then, we would be

failing in our duty if we do not proceed to dismiss this petition by

upholding the preliminary objection of Mr.Thakkar.

18]

The Writ petition is accordingly dismissed.

19] Even otherwise, from the record it is clear that the State

Government has set up the Committee not only because of the

observations of the Full Bench but on account of its own statement before

this Court. Mr.Nargolkar is right in his submissions that the statement of

the learned Advocate General, made on instructions, binds the State

Government. The State Government has accepted the Full Bench

decision and set up a High Powered Committee. It is not as if the Full

Bench directed the Constitution of the Committee and the Stated acted in

furtherance thereof. A proper and complete reading of the Full Bench

decision demonstrates that the State Government has constituted the

Committee of its own but in due deference to the statement of the learned

Advocate General and the observations of the Full Bench. This by itself

does not mean that the Committee has been set up by this Court or in

furtherance to this Court's direction. Both Full Bench decision and the

GR will have to be read as a whole. So read, it is apparent that the GR

dated 15th November 2007 is issued by the State Government after taking

into account the observations in the Full Bench decision and the

provisions of the relevant Statute.

20] We are informed that the Full Bench decision of this Court in

Tulsiwadi's case is challenged before the Supreme Court and that

challenge is pending on the own showing of the petitioner. Hence,

Judicial discipline demands that during the pendency of such a challenge

we should not go into any larger and wider controversy. Therefore, the

issue as to whether this Court has taken over Legislative and Executive

powers and functions of the State and whether the Full Bench decision

violates the Doctrine of Separation of Powers enshrined in the

Constitution must be properly raised and dealt with during the course of

that challenge. This Full Bench cannot sit in the judgement over its own

decision rendered earlier. That would be also impermissible and more so

in the teeth of the pending challenge before the Supreme Court.

Therefore, leaving these wider issues open for being raised in the pending

proceedings before the Supreme Court or in other appropriate case, we

proceed to dismiss this petition. Accordingly, the petition is dismissed.

(Chief Justice)

(Dr.D.Y.Chandrachud, J)

(S.C.DHARMADHIKARI, J)