Pandurang T.Kamble vs State Of Mah. & Ors
2014 Latest Caselaw 173 Bom

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                                                      WP1834.96&1763.06




                                                                                  
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                          
             ORDINARY ORIGINAL CIVIL JURISDICTION

                    WRIT PETITION NO. 1834 OF 1996




                                                         
    Pandurang Tukaram Kamble                    )
    Chief Promoter of Sarnath Magas Vargeea
    Sahakari Griha Nirman Sanstha (Niyojith)
    which is now known as Swami Samarth )




                                              
    Co-op. Hsg. Society (Proposed) having )
    its office at 3rd floor, Office No. 21, 201, )
                             
    Nagdevi Street, Mumbai 400 003,
    through Constituted Anil Gulabdas Shah )
                                                 )
                                                     ..      Petitioner
                            
           Versus

    1 The State of Maharashtra                  )
      Mantralaya, Bombay.                       )
      


    2 The Additional Collector,            )
      Bombay Suburban District, having its )
   



      office at Old Custom House,          )
      Bombay 400 023.                      )

    3 Mathadi M. Kamgar Sahakari Griha          )





      Nirman Society Ltd., Shroff Bhavan,       )
      157, P.D'mello Road, Carnac Bunder        )
      Bombay 400 001.                           )    ..      Respondents

                               WITH





                    WRIT PETITION N O. 1763 OF 2006


    Pandurang Tukaram Kamble             )
    Chief Promoter of Shree Swami Samarth)
    Co-op. Hsg. Society (Proposed)       )

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                                                 WP1834.96&1763.06




                                                                             
    Panchsheela Nagar,C/o. Hanuman Kirana




                                                     
    Stores, Shop No. 12, B.M.C. Market  )
    Tilak Nagar, Chembur, Mumbai 400 089)       ..      Petitioner

          Versus




                                                    
    1 The State of Maharashtra              )
      having its office at Mantralaya,      )
      Bombay, through the Secretary,        )
      Revenue & Forest Department.          )




                                           
    2 The Additional Collector,            )
                           
      Bombay Suburban District, having its )
      office at Old Custom House,          )
      Bombay 400 023.                      )
                          
    3 Mathadi Kamgar Sahakari Griha         )
      Nirman Society Ltd., Shroff Bhavan,   )
      157, P.D'mello Road, Carnac Bunder    )
      Bombay 400 001.                       )   ..      Respondents
      


    Shri Shankar Thorat, counsel for petitioner.
   



    Shri G.W. Mottos, AGP for respondents No.1 and 2.
    Shri S.R Nargolkar, Advocate for respondent Nos. 3.

                              CORAM:-NARESH H. PATIL &





                                      A. P. BHANGALE, JJ.

DATE ON WHICH JUDGMENT IS RESERVED:- 18th December,2014 DATE ON WHICH JUDGMENT IS RESERVED: 23rd December,2014

JUDGMENT:-(Per A. P. Bhangale, J.)

Heard submissions at the bar. Perused copies of

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documents including affidavits relied upon by the parties.

2 By Writ Petition No. 1834 of 1996, the Petitioner

prayed that respondents No. 1 and 2 be directed to allot and hand

over the piece of land ad measuring 2.5 Acres out of Survey Nos.

357 and 376 situated at Chembur, Mumbai. It must be noted that

this writ Petition was disposed of earlier by an order dated

05-11-1996 by a Single Judge of this Court. The order was

challenged in Appeal No. 757 of 1997 decided on 09-02-2004 by

Division Bench of this Court, whereby it was restored for hearing

and disposal afresh in accordance with law.

3 The Petitioner claimed as the Chief Promoter of the

proposed Co-operative Housing Society "Sarnath Magasvargiya

Sahakari Griha Nirman Sanstha". He claimed allotment of the

plot of land from the respondent - State of Maharashtra on the

ground that his application was bypassed and the application by the

respondent No. 3 Society was considered. It is case of the

Petitioner that Petitioner's society was established on 14-04-1981

and the Petitioner made an application dated 02-02-1983 to the

Additional Collector , Old Customs House Bombay for allotment of

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an open plot of land. During the period between the year 1983 to

1988 lot of correspondence took place between the Petitioner and

the respondents as the Petitioner had requested for allotment of the

land survey Nos. 357 and 376 situated at Chembur. On 25-03-1988,

the Petitoner came to know from the news item in Marathi news

paper 'Navakal' that the Government has decided to allot 42 acres of

immovable property including survey Nos. 337 and 370 to

respondent No. 3 Society. The petitioner had filed Writ Petition

2332 of 1988. At that time the respondents No 1 and 2 pointed out

that they were actively considering the allotment of Survey No. 90

at Mulund to the petitioner's Society. As a result the said Writ

Petition was dismissed. The Petitioner filed an appeal against the

said order being Appeal No. 15 of 1989. By interim order dated

16th October, 1989 in Appeal No 1153 of 1989 in Writ Petition 2332

of 1998, dismissed earlier was restored to the file. When appeal

came up, Division Bench noted that no steps whatsoever had been

taken and in fact there had been no active consideration qua the

appellant at any stage. According to the Petitioner the appeal was

settled between the respondent no. 3 and the Petitioner and 180

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members of the Petitioner were to be absorbed in the society of the

respondent No. 3 Society, by allotting 2.5 Acres of land separately

and this fact was recorded in the minutes of the meeting between the

Petitioner and the society of Respondent No. 3. On 26-08-1993,

the order was passed by Justice A. V. Savant directing the

respondent No.1 - State to consider the proposal of the Petitioner

and the respondent No 3 Society. On 30-11-1993, Justice B. P.

Saraf directed the respondent No. 1 - State to consider the new

names of the Petitioner's Society expeditiously. 180 names were

submitted by the Petitioner as members of the Petitioner's Society.

On 15-09-1994, respondent No. 3 Society was not willing to

absorb members of the Petitioner though earlier shown willingness

to hand over possession of 2.5 Acres of land to the Petitioner's

Society.

4 On 30-08-1996 Justice Mr. A. P. Shah held that no

relief could be granted on the notice of Motion and the Petitioner

was required to file a substantive petition. Hence Notice of Motion

was withdrawn. Thus Writ Petition No. 1834 of 1996 was filed.

5 By another Writ Petition No. 1763 of 2006, the

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Petitioner prayed for to quash and set aside the allotment order

bearing No. LCS2696/308 case No. 6544/J-3 dated 21-01-2006

granting the land ad measuring 62 acres at Chembur, Wadala and

Anik to the respondent No. 3, Mathadi Kamgar Sahakari Griha

Nirman Sanstha. The Petitioner prayed that the respondents No. 1

and 2 be directed to allow the applications made by the Petitioner

dated 02-02-1983 and 31-03-1983 to the State Government for the

allotment of the plot of land ad mesuring the area of 2.5 Acres in

Survey No. 376 situated at Chembur, Wadala, Mumbai Suburban

area.

6 Learned Advocate Shri Thorat appearing on behalf of

the Petitioner took us through the copies of documents annexed with

the reconstructed Writ Petition and copies of affidavits which were

filed on record and he earnestly submitted that the State

Government was actively considering the allotment of the land in

favour of the Petitioner's proposed co-operative Housing Society as

evidenced by the various orders in the Writ Petitions which were

filed by the petitioner to insist upon the allotment of the land for

housing the members of the Petitioner's Society. State government,

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therefore, ought to have alloted the land in favour of the Petitioner's

co-operative Housing society. Shri Thorat referred to the ruling in

Bakul Cashew Co. vs. Sales Tax Officer Quilon and another

reported in (1986) 2 SCC 365. We have considered the ruling.

In our opinion, in the fact situation of the case in hand, the principle

of equitable doctrine of the Promissory estoppel is not attracted. In

Para 5 the Apex Court stated thus:-

"In cases of this nature the evidence of representation

should be clear and unambiguous. It 'must be certain to every intent'. The statements that are made by ministers at such meetings, such as, 'let us see', 'we shall consider the

question of granting of exemption sympathetically', 'we

shall get the matter examined', 'you have a good case for exemption' etc. even if true, cannot form the basis for a plea of estoppel. Moreover, the events that have taken

place subsequently belie the fact of any such promise by the ministers. It is seen that the Cashew Corporation of India had made a representation to the Government of India on May 7, 1971 and the Government of India wrote

to the State Government on March 4, 1972 urging that the exemption prayed for by the cashew manufacturers may be favourably considered by the Government of Kerala. The

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Government of Kerala, however, rejected the said request.

Then on further pressure being put upon it, it issued the notification dated October 12, 1973 and immediately thereafter withdrew it after it encountered severe public

criticism. This conduct on their part is not consistent with the appellants' case that they had actually promised in the year 1971 to exempt the cashew trade from payment of the

tax. The allegations made in the petition do not establish;

(i)

that there was a definite representation by the Government to the effect that the Government will not levy

the tax;

(ii) that the appellants in fact altered their position by acting upon such representation, and

(iii) that they had suffered some prejudice sufficient to

constitute an estoppel. Hence the whole case of

promissory estoppel lacks the necessary factual foundation. It is, therefore, unnecessary to consider the question of law whether the plea of promissory estoppel can be raised

against a legislation which levies tax and whether an assessee can claim exemption from a tax levied by the legislature merely on the basis of a representation of a

minister."

Thus it is clear that a vague or bare statement made by an public

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authority without certain intent or detail cannot form the plea for the

promissory estoppel. In the cases of transfer of valuable

immovable property by the Government principle / the doctrine of

promissory estoppel is not normally attracted as there can not be

estoppel against the Statute or binding legal provisions which are in

force, requiring the essential conditions for validity of transfer to be

complied when transfer is by any modes like Sale, Gift, Lease,

Exchange, License etc according to law. i.e. in writing, compulsory

registration, stamp duty attestation etc. Section 115 of the Indian

Evidence Act defines estoppel:

"When one person has, by his declaration, act or omission,

intentionally caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or

proceeding between himself and such person or his representative, to deny the truth of that thing."

However the public authority concerned cannot be compelled to

something which is contrary to law, not allowed by law or

prohibited by law. The equitable doctrine of promissory estoppel

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cannot be invoked in case the authority concerned acted against the

statute because no one can be compelled to act in a manner which is

contrary to law .

7 In the present case, we do not find any concrete,

reliable material placed on the record so as to establish that a

definite representation or promise by the Government for allotment

of certain piece of land to the Petitioner's registered Housing Society

with certain number of members as "Mathadi Kamgar" (Manual

labourers) on it's roll from and that the Petitioner 's co-operative

Housing Society acted upon the definite promise, altered it's

position in such a manner, suffering the prejudice so as to constitute

the acceptable plea of the promissory estoppel. Necessary factual

foundation to press the principle of promissory estoppel is thus

unfortunately lacking. In our opinion, an individual cannot insist

upon the public authority or Government to transfer an immovable

property to him unless the promise made is specific, definite with

certain intent creating a legal or equitable right upon the premise of

'promissory estoppel'.

8 Even otherwise in the matters of allotment of

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immovable property to any person, Government can not act like an

unrestricted private individual in exercise of it's power in awarding

it's highly valuable assets i.e. State largess. State Government need

to bear in mind the provisions of the Maharashtra Land Revenue

Code and relevant Statutes, Rules and Regulations to observe

formalities of law required to create transfer / grant of immovable

property.

Section 40 of the M.L.R. Code enacts saving of powers

of Government.

"Nothing contained in any provision of the Code shall derogate from the right of the State Government to dispose of any land, the property of Government, on such terms and

conditions as it deems fit. "

Thus assuming for the sake of argument that the State Government

had full freedom to choose the grantee and make the grant

operative, it had to impose terms and conditions for the grant of

lease of the land as it may deem fit, if the State really intended to

exercise it's right to allot or transfer the immovable property to the

deserving citizens belonging to class of 'Mathadi Kamgar'-Manual

labourers-belonging to economically weaker or socially backward

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sections of the society recognized as Mathadi workers. However,

the State cannot act in such a manner to allow or plunder away its

immovable property to enable opportunist land grabbers and tax

dodgers to loot away valuable immovable assets / property

belonging to the State. In case the State Government intended to

create grant of lease as contemplated under the Maharashtra Land

Revenue Code, it was necessary for the State Government to carve a

lay out of the land specified for the purpose of housing for the poor

Mathadi Kamgars, consistent to the development plan intended in

the area, to be prepared and approved by the planning authority,

public notice was required to be published, if land is to be allotted

by adopting a lottery system or draw of lots amongst beneficiaries/

persons who may apply for allotment of the Government land.

Requisite formalities to complete the grant or transfer of valuable

immovable property according to law are essential. Citizens in the

area concerned must know about availability of plots of immovable

property and must have an equal opportunity to apply for the grant

or transfer of the Government land. State Government cannot

adopt any back door method for the purpose of allotment of

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immovable property. Government is always expected to act fairly,

reasonably and openly in public interest in the matter of allotment

of any immovable property capable of fetching high and best

market value, in a transparent manner to deserving persons in the

society. Properly drawn out social and public policy to uplift

economically weaker section of the society demands that a rational

and transparent decision has to be taken in good faith and not upon

any extraneous consideration. Even when the State Government is

seeking to implement the public or social policy to be implemented

for upliftment of the economically or socially backward persons in

the society, only deserving and eligible person/s are entitled to

compete and insist upon claiming benefit of a well drawn out

social and public policy of the State government. It was necessary

for the State Government to consider whether names of the

members furnished as beneficiaries were genuine with their

particulars as to credentials stated respectively. Favouritism and

nepotism borne of undue influence cannot be allowed in grants from

the State. In such matters no person must have reason to believe

that he or she is discriminated at the hands of the Government,

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while State Government is granting the lease in respect of valuable

immovable property, and considering any application for allotment

or transfer of an immovable property on merits, Government cannot

plunder away its valuable resources in the form of immovable

property in the city of Mumbai, while departing from the rules &

regulations governed by the relevant statutes. If Government

wants to enter in transaction of immovable property with any citizen

it must abide by the law in force. It must follow due process of

law, while discharging the public functions to grant interest in

immovable property to any deserving person, therefore, a

transparent decision must be taken, free from any undue influence,

arbitrariness, malafides, without overstepping the limits or powers

conferred under the statutes concerned.

9 For the aforesaid reasons the State Government must

apply its mind and reconsider the allotment made in favour of the

respondent no. 3 Mathadi Kamgar Sahakari Griha Nirman Society

Limited as to whether the allotment was lawfully made to genuine

and deserving beneficiaries in accordance with the provisions of

law, rules and regulations in force by following the established

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procedure of law and whether the same can be allowed to continue

after considering and knowing the true identity of the members of

the respondent no. 3 Society.

    10           We therefore pass the following order:-

          (A)    Writ Petition No. 1834 of 1996 is found without merit




                                             
          and dismissed .

          (B)
                            

Writ Petition No. 1763 of 2006 is partly allowed as

under:-

State government of Maharashtra is directed to enquire into

allegations made by the Petitioner and re-examine the allotment of

the land made in favour of the respondent No. 3 co-operative

Housing society and then to take an appropriate decision as to

whether the allotment of immovable property can validly continue

in favour of the respondent No. 3 Society, in view of the reasons

recorded in the Judgment. If Decision of the allotment in favour

of the respondent No. 3 continues, reasons be recorded as to the

eligibility of the beneficiary members of the society of respondent

No. 3 society as on the date of the allotment in favour of the

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respondent No. 3. Members ineligible, if any, may be discontinued

and the registered Co-operative Housing Society shall be required

to continue to function only with the eligible or valid beneficiary

members of the said Society as on the date of the allotment of

immovable property in its favour and/or legal representatives of the

deceased member if any, upon whom membership is validly

conferred/transfered in accordance with the rules/bye-laws of the

said Society. It is open for the State Government of Maharashtra to

cancel the allotment, if found unlawful as on the date of allotment in

favour of the respondent No 3. The final decision be taken by the

State Government expeditiously and as early as possible, after

granting opportunity of hearing to the parties concerned. The

Petitioner and the Respondent No. 3 shall be at liberty to file their

written representation, if any, within one month from the date of this

order. Petition is partly allowed accordingly. No order as to costs.

Writ Petitions are disposed of accordingly.

Copy of this Judgment and order be sent to the Chief

Secretary of the State of Maharashtra and the Principal Secretary,

Law & Judiciary Department, State of Maharashtra for information

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and necessary expeditious action.

    (A.P. BHANGALE, J.)                  (NARESH H. PATIL, J.)




                                                
    md.saleem