Bombay High Court
Mahatma Gandhi Mission Trust vs The State Of Maharashtra on 23 November, 2010
Bench: B.R. Gavai, R. M. Borde
( 1 ) W.P. No. 6310/2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION NO. 6310 OF 2010
Mahatma Gandhi Mission Trust,
Nanded,
through its Secretary,
Shri Ankushkumar s/o. Nanasaheb Kadam,
Age : 67 years,
R/o. Nandanvan Colony,
Aurangabad. .. Petitioner.
versus
1. The State of Maharashtra,
through the Secretary,
Urban Development Department,
Mantralaya, Mumbai - 32.
2. The City and Industrial Development
Corporation of Maharashtra Ltd.,
through its Managing Director,
"Nirmal", Second floor,
Nariman Point, Mumbai.
3. The Administrator,
CIDCO, Udhyog Bhavan,
Town Centre,
New Aurangabad.
4. Prashant s/o. Bansilal Bamb, .. Respondents
Age : 39 years, (No.4 -
Occupation : MLA & Social Work, Intervenor)
R/o. A/p. Lasur Station,
Taluka : Gangapur,
District : Aurangabad.
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( 2 ) W.P. No. 6310/2010
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Mr. V.D. Salunke, Advocate, for the petitioner.
Mrs. A.V. Gondhalekar, Assistant Government Pleader,
for respondent no.1.
Mr. A.S. Bajaj, Advocate, for respondent nos.2 and 3.
Mr. P.M. Shah, Senior Advocate, holding for
Mr. S.P. Shah, Advocate, for respondent no.4 / Intervenor.
ig ........................
CORAM : B.R. GAVAI &
R.M. BORDE, JJ.
DATE : 23RD NOVEMBER 2010
JUDGMENT (Per B.R. Gavai, J.) :
1. The petitioner has filed the present petition,
challenging the letter dated 5th April 2010, issued by the
Government of Maharashtra, and the letter dated 5th May 2010,
issued by the Administrator, City and Industrial Development
Corporation of Maharashtra Ltd. (For short, hereinafter referred
to as "CIDCO").
2. The facts, in brief, giving rise to the present petition
( 3 ) W.P. No. 6310/2010
are as under :
(a) The petitioner is a public trust registered under the
provisions of the Bombay Public Trusts Act, 1950. The
petitioner / Trust is running Medical and Engineering Colleges at
New Mumbai, Aurangabad and Nanded, in Maharashtra, and
Noida in Uttar Pradesh. The Trust is also running other
educational courses.
(b) It is submitted by the petitioner, that the respondent no.2 /
CIDCO has allotted the land in favour of the petitioner / Trust, to
run the Medical College and Engineering College at N-6 area,
CIDCO, Aurangabad. It is contended that the respondent no.2
has allotted 2 hectares of land for M.G.M. Hospital, 6.20 hectares
for Jawaharlal Nehru Engineering College, 2.47 hectares for staff
quarters, 9.74 hectares for club and stadium. It is also contended,
that 7 hectares of land is given in possession of the petitioner, to
develop Priyadarshini Garden. It is the contention of the
petitioner, that while giving possession of the land to the
petitioner, there was a dispute between the petitioner and the
respondent / CIDCO. It is contended that the respondent /
CIDCO itself has accepted that the area given to the petitioner is
less than the allotted one.
(c) It is further contended that the dispute arose in respect of
( 4 ) W.P. No. 6310/2010
the land allotted for staff quarters and the petitioner has deposited
an amount of Rs. 5,00,000/- towards the said land. It is further
contended that the possession of the land for staff quarters,
admeasuring 2.47 hectares is still with the petitioner. It is further
contended that the respondent no.2 cancelled the said allotment
of 2.47 hectares, which was challenged by the petitioner before
this Court; however, the challenge failed and the Special Leave
Petition also came to be dismissed by the Apex Court.
(d) It is contended by the petitioners, that since the petitioner
was in possession of the aforesaid land admeasuring 2.47
hectares, the petitioner has constructed temporary shed to run
Dhamma Ajanta, Aurangabad, and Vipashyana Meditation
Centre. It is contended that in the meanwhile, the respondent /
CIDCO agreed to measure the total land to solve the dispute and
it was accordingly found that the area in possession of the
petitioner was less by 4,827 Square Metre than the land which
was actually allotted. It is contended that accordingly the
respondent no.2 has allotted 4,827 Square Metre land which was
found to be less than actually allotted.
(e) It is further contended that subsequently vide letter dated
5th February 2008, the respondent / CIDCO asked the petitioner,
whether the petitioner was ready to purchase the plot of 9150
Square Metres, at the rate of Rs. 1025/- per Square Metres. It is
( 5 ) W.P. No. 6310/2010
further contended that vide letter of the same date, the respondent
/ CIDCO asked the petitioner, whether the petitioner was willing
to purchase remaining land of 10723 Square Metres for the
purpose of residential quarters of the employees of M.G.M.
Trust, at the rate of Rs. 4200/- per Square Metre. It is contended
that the petitioner responded positively and the Board of
Directors of the respondent / CIDCO, in its meeting dated 2nd
April 2008, had decided to allot the aforesaid land of 9150
Square Metres to the petitioner, at the rate of Rs. 1025/- per
Square Metre, and the land admeasuring 10723 Square Metres, at
the rate of Rs. 4200/- per Square Metre. However, the said
allotment was subject to approval of the State Government. It is
submitted that vide order dated 5th April 2010, the State
Government has refused to approve the resolution of the State
Government and consequently, vide communication dated 5th
May 2010, the respondent / CIDCO has directed the petitioner to
remove the encroachment on the aforesaid two pieces of land.
(f) In this background, the petitioner has approached this
Court.
3. We have heard the learned Counsel appearing for the
respective parties.
4. Mr. V.D. Salunke, learned Counsel appearing for the
( 6 ) W.P. No. 6310/2010
petitioner, submits that once the Board of Directors of CIDCO
had resolved to allot the aforesaid two pieces of land to the
petitioner, of which the petitioner is already put in possession,
the respondents were estopped from withdrawing from the said
offer. He further submits that the State Government has no
power, either to approve or disapprove the resolution passed by
the CIDCO. He further submits that the respondent / CIDCO has
adopted a discriminatory attitude, inasmuch as, in case of
allotment of land in other cities, approval of the State
Government is not sought for and only in case of the petitioner,
the approval is sought. He further submits that the reason given
in the affidavit in reply, that the allotment was not permissible in
view of the orders passed by this Court, in Writ Petition No.
2338/1999, dated 10th November 2000, is not found in the letter
of the respondent / CIDCO. He, therefore, submits that the
reason which is not there in the original order, cannot be
permitted to be supplemented in the affidavit in reply.
5. Mr. A.S. Bajaj, learned Counsel appearing for
respondent nos.2 and 3 / CIDCO, submits that in view of the
judgment passed by the Division Bench of this Court, in Writ
Petition No. 2338/1999, dated 10th November 2000, it was not
permissible for the CIDCO to allot the land to the petitioner,
directly, in the absence of public proclamation or tenders. He
further submits that the possession of the petitioner, on the land
( 7 ) W.P. No. 6310/2010
in question, has been held to be encroachment, by the Division
Bench of this Court, in Writ Petition No. 4952/1999. The said
finding has been affirmed by the judgment of the Apex Court, in
the case of Mahatma Gandhi Mission Vs. City & Industrial
Development Corporation Ltd. & others ((2005) 12 Supreme
Court Cases 115). He, therefore, submits that if the contention
of the petitioner is to be accepted, it would amount to granting
premium to an encroacher. He further submits that an actual
allotment of land was never done to the petitioner. He further
submits that only an offer was made to the petitioner and it was
subject to approval by the State Government.
6. Mr. P.M. Shah, learned Senior Counsel appearing for
respondent no.4 / Intervenor, submits that when the intervenor
noticed that an allotment was sought to be made to the petitioner,
in contravention of the judgments of this Court, the intervenor,
who is a Member of Legislative Assembly, has raised an issue in
the legislature and since the issue was raised, the illegal activities
of the petitioner, in collusion with the respondent / CIDCO, came
to light. It is, therefore, submitted that the petitioner is not
entitled to any relief.
7. It can be noticed that in respect of land, in question,
which is admeasuring 2.47 hectares, there has been dispute
between the petitioner and the CIDCO, at an earlier point of
( 8 ) W.P. No. 6310/2010
time, which has reached up to the Apex Court. Since the
allotment of other land, for the purpose of colleges, hospital, etc.,
is not in dispute, we have not referred to the said allotments.
8. The petitioner had filed Writ Petition No. 4952/1999,
challenging the notice issued by the respondent / CIDCO, dated
11th October 1999, thereby calling upon them to hand over
peaceful and vacant possession of the plot admeasuring 2.47
hectares. It was contended by the petitioner in the said petition,
that the said land admeasuring 2.47 hectares was allotted for the
Housing Society of employees of Jawaharlal Nehru Engineering
College and it was in possession of the petitioner. The
respondent / CIDCO has specifically contended that the
petitioner had taken possession of the said land without any lease
or agreement. The contention which is sought to be raised now,
that an amount of Rs. 8,23,500/- was received by the CIDCO, as
a premium of lease of the said land, was also canvassed in the
said petition. It appears that during the pendency of the said
petition, the Court had directed the Senior Planner of the CIDCO
and the District Inspector of Land Record, Aurangabad, to
measure the subject plot, which is bounded by JNEC Campus on
the west side, a public road and the land in possession of
Bhagwan Shikshan Prasarak Mandal on the northern side, a 24
metre wide public road towards eastern side and Priyadarshini
garden as well as proposed public road towards the south.
( 9 ) W.P. No. 6310/2010
9. The Division Bench, while disposing the Writ Petition
No. 4952/1999, has found that the petitioner had failed to
establish that it has a title to the subject land. It is specifically
observed by the Division Bench, that it was for the petitioner to
explain as to how it had come in possession of the property and
merely saying that the possession was handed over to it by the
officers of CIDCO, on their own, would not be sufficient when it
was seeking a writ from this Court. The contention of the
present petitioner, regarding the payment received by the
CIDCO, towards premium for lease of 2.47 hectares of land, was
also negatived by the Division Bench. It was found that the lease
money, towards the lease of Engineering College, itself was
outstanding against the petitioner and that the said amount was
adjusted towards the said outstanding amount.
10. The aforesaid judgment of this Court, dated 31st
October 2002, in Writ Petition No. 4952/1999, was carried by the
present petitioner, before the Apex Court, by way of Civil
Appeal. The Civil Appeal No. 1466 of 2005 was decided by the
Apex Court vide judgment dated 16th September 2005. The said
judgment is reported in (2005) 12 Supreme Court Cases 115
(supra). It would be relevant to reproduce paragraphs 14, 15 and
16 of the said judgment, wherein the Apex Court has observed
thus :
( 10 ) W.P. No. 6310/2010
"14. From the facts and circumstances and
from the affidavit filed in the High Court,
findings recorded by the High Court and also
the counter-affidavit filed in this Court, it is
clear that the possession of land was never
given to the Trust. No agreement was entered
into between the parties, no deed was
executed, no possession was given by CIDCO
to the appellant and the appellant illegally and
unlawfully and in a high-handed manner
entered into the land which belonged to
CIDCO. After such illegal act and entering
into unlawful possession of the property, it
asked CIDCO to get the measurement of land
done for which no payment was made by the
Trust. Such an action by a charitable trust
would be simply improper as also unlawful.
When called upon to produce evidence or
material to show as to on what basis the Trust
contended that the land was allotted by CIDCO
and as to how the Trust came into possession
of the disputed land, except a bald statement
by the Trust that the officers of CIDCO handed
over possession to the Trust, no material
whatsoever had been produced in the Court on
the basis of which possession of the Trust
could be said to be lawful. The High Court, in
the circumstances, was wholly justified in not
proceeding on unfounded assertion of the Trust
and in dismissing the petition.
15. So far the willingness and readiness of
the Trust to purchase the land is concerned, in
our opinion, CIDCO is right in objecting such
prayer on the grounds mentioned in the
( 11 ) W.P. No. 6310/2010
counter-affidavit filed in this Court. CIDCO is
a statutory public authority. It cannot be asked
to dispose of the land otherwise than in
accordance with statutory provisions and
guidelines/norms adopted by such authority
and at the cost of the public exchequer.
16. The deponent has stated in the said
affidavit that if the land is disposed of as per
the practice of CIDCO, it would fetch a
substantially high amount. It is also the case
of CIDCO that full and final payment of land
allotted to the appellant before about twenty
years has not been made so far. Keeping in
view the facts and circumstances, the legal
position and also the equitable aspect of the
matter, in our opinion, this is not a fit case to
exercise equitable jurisdiction under Article
136 of the Constitution in favour of the
appellant. "
It can, thus, be clearly seen that the Apex Court has also
found that the present petitioner had illegally, unlawfully and in
a high-handed manner entered into the land which belonged to
CIDCO.
11. It will also be pertinent to note that in a public
interest litigation, by way of Writ Petition No. 2338/1999 (For
short, hereinafter referred to as "PIL"), filed before this Court,
the Division Bench of this Court, vide judgment dated 10th
November 2000, had issued certain directions while allowing the
( 12 ) W.P. No. 6310/2010
petition. It will be relevant to reproduce direction "F" in the said
judgment, which reads thus :
" No land in possession of CIDCO as at
present at New Aurangabad shall be
disposed of on the basis of individual request
/ application and in the absence of public
proclamation / tender. "
12. The judgment of the Division Bench of this Court, in
the said public interest litigation, was also carried before the
Apex Court. The Apex Court, vide judgment in the case of
Padma Vs. Hiralal Motilal Desarda and others (AIR 2002 SC
3252), has upheld the judgment of Division Bench of this Court,
except for minor variations stated in the judgment.
13. It can, thus, be clearly seen that the contention of the
present petitioner, that there was allotment of aforesaid piece of
land admeasuring 2.47 hectares, is specifically negatived by this
Court and the Apex Court. Not only this, but the possession of
the present petitioner has been found to be that of an encroacher.
It is further to be noted that in the PIL referred above, this Court
has clearly observed, that no land in possession of CIDCO at
Aurangabad shall be disposed of on the basis of individual
request / application and in the absence of public proclamation /
tender. Not only this, but a categorical statement has been made
( 13 ) W.P. No. 6310/2010
before the Apex Court, by the CIDCO, when the Special Leave
Petition filed by the present petitioner was being heard, that it
was not inclined to consider readiness and willingness of the
present petitioner to purchase the land. The said contention was
upheld by the Apex Court. The Apex Court has specifically
observed, that CIDCO cannot be asked to dispose of the land
otherwise than in accordance with statutory provisions and
guidelines / norms adopted by such authority and at the cost of
the public exchequer.
14. We are, therefore, of the considered view that it was
not at all permissible for the officers of the CIDCO to have
offered the aforesaid land to the present petitioner, in view of the
judgment of this Court and the Apex Court, in case of the
petitioner itself, and in view of the directions issued by this
Court in the PIL, which are affirmed by the Apex Court. We
have no hesitation to observe that the officers of the CIDCO, in
collusion with the petitioner, have made an attempt to allot the
aforesaid land of 2.47 hectares to the petitioner, which claim of
the petitioner has been specifically turned down by this Court
and the Apex Court, in the earlier round of litigation. We further
find that the offer and acceptance are totally in breach of
directions issued in the PIL. It is clear that no land in possession
of CIDCO could have been disposed of, in the absence of public
proclamation / tender. An attempt was made to clandestinely
( 14 ) W.P. No. 6310/2010
allot the land to the petitioner, in breach of the directions issued
by this Court in the PIL.
15. It is further to be noted that vide communication
dated 5th February 2008, what was stated, was only an offer
made to the petitioner. The resolutions in the meeting dated 2nd
April 2008 would also show that the resolution to allot the land
was subject to approval of the State Government. It can, thus, be
seen that there was no right accrued in favour of the petitioner.
Unless the resolution of the Board of Directors of CIDCO was
approved by the State Government, the land could not have been
allotted to the petitioner. We, therefore, find that the ground
raised by the petitioner, regarding estoppel, is without any
substance.
16. In so far as the contention of the petitioner, regarding
acceptance of Rs. 8,23,500/- by the respondent / CIDCO, from
the petitioner, towards premium of lease of the said land of 2.47
hectares, is concerned, the said contention was already raised in
the earlier round of litigation and it has been turned down by this
Court and the Apex Court. In that view of the matter, there is no
merit in the said contention also.
17. In so far as the contention of the petitioner, regarding
the original order not mentioning that the allotment could not
( 15 ) W.P. No. 6310/2010
have been done on account of the orders passed by this Court,
and that the said reason cannot be supplemented in an affidavit,
is concerned, the same is also without any substance. The
petitioner was very well aware that its possession has been held
to that of an encroacher, by this Court, as well as, by the Apex
Court. The petitioner was also aware that the Apex Court has
recorded statement of the CIDCO, that the land cannot be
allotted without following the statutory provisions and guidelines
/ norms of the CIDCO and at the cost of the public exchequer. In
that view of the matter, the petition is found to be without any
substance and is liable to be dismissed.
18. While dismissing the petition, we may note that a
very serious aspect of the matter has come to the notice of this
Court. The officers of the CIDCO were well aware about the
directions issued by this Court in the PIL, that no land in
possession of CIDCO at Aurangabad can be disposed of on the
basis of individual request / application and in the absence of
public proclamation / tender. Not only this, but the respondent /
CIDCO, in the earlier round of litigation, between the present
petitioner and the CIDCO, has specifically taken a stand that it is
not willing to consider the readiness and willingness of the Trust
to purchase the land, and that the said contention has been
upheld by the Apex Court. The Apex Court has specifically
observed, that the CIDCO cannot be asked to dispose of the land
( 16 ) W.P. No. 6310/2010
otherwise than in accordance with statutory provisions and
guidelines / norms adopted by CIDCO and at the cost of the
public exchequer.
19. It is, thus, clear that the act of the officers of the
respondent / CIDCO, in offering the land clandestinely to the
petitioner, was itself in breach of the orders passed by this Court
in PIL, and the statement made by the CIDCO, in the
proceedings between the present petitioner and the CIDCO,
before the Apex Court. We had, therefore, requested the learned
Counsel appearing for the respondent / CIDCO, to give us details
of the officers who were incidentally making offer of the land to
the petitioner. Mr. A.S. Bajaj, learned Counsel appearing for the
petitioner, has informed us, that at the relevant time, Mr.
Manohar Narayan Bhagat, was working as Chief Administrator
of CIDCO, Aurangabad, and Mr. Vasant Gulabrao Salunke was
working as Administrator of CIDCO, Aurangabad.
20. It is pertinent to note that the affidavit filed before the
Apex Court on behalf of the respondent / CIDCO, opposing the
Special Leave Petition filed by the petitioner, was filed by said
Mr. Vasant Gulabrao Salunke, who himself has now made offer
to the petitioner. It will be relevant to refer to paragraph 5 in the
said affidavit filed before the Apex Court, which reads as under :
( 17 ) W.P. No. 6310/2010
" I say that the petitioners, who mala fide
avoided to pay the lease premium now when
the property is worth Rs. 8,52,15,000/- have
shown readiness and willingness to furnish
bank guarantee of Rs. 19 lacs. I say that
conduct of the petitioner is aimed at to cause
wrongful loss to the answering respondent and
make gain out of the same. I say that neither in
law nor in equity, the petitioner is entitled to the
relief sought for. "
It is difficult to understand, as to what made said Mr.
Vasant Gulabrao Salunke, to make an offer to the petitioner,
when he himself on affidavit stated that the conduct of the
petitioner is aimed to cause wrongful loss to the answering
respondent and make gain out of the same. We are prima facie
of the view, that both these officers have acted in a manner
which is in breach and in contravention of the orders passed by
this Court in PIL, which is affirmed by the Apex Court, and the
orders in the earlier round of litigation between the present
petitioner and the CIDCO, pertaining to the same piece of land.
21. We are, therefore, while dismissing the petition,
inclined to issue notice to the aforesaid two officers of CIDCO,
calling upon them to show cause, as to why action for having
committed contempt of the court, should not be initiated against
them.
( 18 ) W.P. No. 6310/2010
22. In the result, the petition is dismissed.
23. However, issue notices to (i) Shri Manohar Narayan
Bhagat, then Chief Administrator of CIDCO, Aurangabad, and
(ii) Shri Vasant Gulabrao Salunke, then Administrator of
CIDCO, Aurangabad, as to why proceedings for committing
contempt should not be initiated against them, for having acted
in defiance and breach of the orders passed by this Court, in Writ
Petition No. 4952/1999, dated 31st October 2002; in Writ
Petition No. 2338/1999, dated 10th November 2000, and the
order passed by the Apex Court, in Civil Appeal No. 1466/2005,
dated 16th September 2005. The notices be issued to the
aforesaid officers, on the present addresses, which would be
supplied by the learned Counsel for the respondent / CIDCO.
The notices are made returnable on 17th January 2011.
( R.M. BORDE ) ( B.R. GAVAI )
JUDGE JUDGE
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bgp/wp6310
