Bombay High Court
M/S. Juhi Habitant Pvt. Ltd vs The State Of Maharashtra And Anr on 3 May, 2023
Bench: G. S. Kulkarni, R. N. Laddha
2023:BHC-AS:13409-DB
WP2473_2021.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2473 OF 2021
WITH
INTERIM APPLICATION NO.20290 OF 2022
Shelton Infrastructure Pvt Ltd.
having its registered office at
31, Sakhar Bhavan, Opp. Oberio Shopping Centre,
230, Nariman Point, Mumbai - 400 021. ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
4th floor Madam Cama road,
Hutatma Rajyaguru Chowk,
Mumbai - 400 032.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.,
Having its registered office
at "Nirmal", 2nd floor, Nariman Point,
Mumbai - 400 021.
3. Navi Mumbai Municipal Corporation,
having its office at
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1067 OF 2022
IN
WRIT PETITION NO. 2473 OF 2021
The City Industrial And Development
Corporation Of Maharashtra Ltd. ...Applicant
In the matter between
Shelton Infrastructure Pvt Ltd. ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 2479 OF 2021
WITH
INTERIM APPLICATION NO. 20295 OF 2022
Neelkanth Infratech Co.
A partnership firm having its office at
Shop no. 15, Sunberry, Plot No. 26,
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Sector-08, Ghansoli,
Navi Mumbai - 400 701 ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Having its registered office
at "Nirmal", 2nd floor, Nariman Point,
Mumbai - 400 021.
3. Navi Mumbai Municipal Corporation,
having its office at NMMC Headquarters,
Plot No. 1 & 2, Near Kille Gaothan,
Palm Beach Junction, Sector - 15A,
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1068 OF 2022
IN
WRIT PETITION NO. 2479 OF 2021
The City Industrial and Development Corporation
Of Maharashtra Ltd. ...Applicant
In the matter between
Neelkanth Infratech Co. ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 2476 OF 2021
WITH
INTERIM APPLICATION NO. 20296 OF 2022
M/s. Juhi Habitat Pvt. Ltd.
through its authorised representative Vijaykumar Bajaj
having its registered office at 1605/1606,
The Ambience Court, Plot No. 2, Sector-19D,
Vashi, Navi Mumbai - 400 703. ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
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Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Through its Managing Director
Having office at 2nd floor, CIDCO Bhavan
CBD Belapur, Navi Mumbai - 400 614.
3. Navi Mumbai Municipal Corporation
Through its Municipal Commissioner
15A, Plot, Sector 1, 2 Palm Beach Raod
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1064 OF 2022
IN
WRIT PETITION NO. 2476 OF 2021
CIDCO ... Applicant
in the matter between
M/s. Juhi Habitant Pvt. Ltd. ... Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 2477 OF 2021
WITH
INTERIM APPLICATION NO. 20293 OF 2022
Gami And Satyam Ventures Pvt Ltd .
Having its office at
B/3/31, 2-3, Ashtavinayak Apartment,
Opp. Vijaya Bank, Sector-15, Vashi,
Navi Mumbai - 400 703. ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Having its registered office
at "Nirmal", 2nd floor, Nariman Point,
Mumbai - 400 021.
3. Navi Mumbai Municipal Corporation,
Having its office at NMMC Headquarters,
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Plot No. 1 & 2, Near Kille Gaothan,
Palm Beach Junction, Sector - 15A,
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1062 OF 2022
IN
WRIT PETITION NO. 2477 OF 2021
The City Industrial and Development Corpn.
Of Maharashtra Ltd. ...Applicant
In the matter between
Gami And Satyam Ventures Pvt Ltd . ...Petitioner
Versus
The State Of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 2478 OF 2021
WITH
INTERIM APPLICATION NO. 20292 OF 2022
Gami And Satyam Ventures Pvt Ltd .
Having its office at
B/3/31, 2-3, Ashtavinayak Apartment,
Opp. Vijaya Bank, Sector-15, Vashi,
Navi Mumbai - 400 703. ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Having its registered office
at "Nirmal", 2nd floor, Nariman Point,
Mumbai - 400 021.
3. Navi Mumbai Municipal Corporation,
having its office at NMMC Headquarters,
Plot No. 1 & 2, Near Kille Gaothan,
Palm Beach Junction, Sector - 15A,
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1063 OF 2022
IN
WRIT PETITION NO. 2478 OF 2021
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The City Industrial and Development Corporation
Of Maharashtra Ltd. ...Applicant
In the matter between
Gami And Satyam Ventures Pvt Ltd. ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 2475 OF 2021
WITH
INTERIM APPLICATION NO. 20294 OF 2022
Godrej Properties Ltd.
having its registered office at
Godrej One, 5th floor, Pirojshanagar,
Eastern Express Highway, Vikhroli (E),
Mumbai - 400 079. ...Petitioner/Applicant
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Having its registered office
at "Nirmal", 2nd floor, Nariman Point,
Mumbai - 400 021.
3. Navi Mumbai Municipal Corporation,
having its office at NMMC Headquarters,
Plot No. 1 & 2, Near Kille Gaothan,
Palm Beach Junction, Sector - 15A,
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1069 OF 2022
IN
WRIT PETITION NO. 2475 OF 2021
The City Industrial and Development Corporation
Of Maharashtra Ltd. ...Applicant
In the matter between
Godrej Properties Ltd. ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
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WRIT PETITION NO. 1214 OF 2021
WITH
INTERIM APPLICATION NO. 20297 OF 2022
M/s. Kamdhenu Green,
through Partner Surinder A. Sabhlok &
Mr. Chirag Kirit Shah
Office at 75-76, Mahavir, Sector-17
Vashi, Navi Mumbai - 400 703 ...Petitioner
Versus
1. The State Of Maharashtra, through the
Urban Development Dept.-I
Government of Maharashtra,
Mantralaya, Mumbai.
2. The City Industrial and Development Corpn.
Of Maharashtra Ltd.
Through its Managing Director
Having office at 2nd floor, CIDCO Bhavan,
CBD Belapur, Navi Mumbai - 400 614.
3. Navi Mumbai Municipal Corporation,
through its Municipal Commissioner,
15A, Plot., Sector 1,2, Palm Beach Road
C.B.D. Belapur, Navi Mumbai - 400 614. ...Respondents
WITH
INTERIM APPLICATION NO. 1066 OF 2022
WITH
WRIT PETITION NO. 1214 OF 2021
CIDCO ...Applicant
in the matter between
M/s. Kamdhenu Green ... Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
Mr Virag Tulzapurkar, Senior Advocate a/w. Ms. Bindi Dave, Mr. Ieshan
Sinha, Mr. Aayesh Gandhi for Petitioner in WP/2473/2021 and applicant
in IA/20290/2022.
Mr Dinyar Madon, Sr. Advocate a/w Mr Rohaan Cama a/w Mr. Sanjay
Udeshi, Mr Aditya Udeshi, Mr. Netaji Gawade, Mr. Rahul Sanghvi i/b.
M/s Sanjay Udeshi & Co. For Petitioner in WP/2478/2021 and Applicant
in IA/20292/2022.
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Mr Rajiv Chavan, Senior Advocate a/w. Mr. Rohaan Cama, Mr. Sanjay
Udeshi, Mr. Aditya Udeshi. Mr. Netaji Gawde, Mr. Rahul Sanghvi i/b.
M/s. Sanjay Udeshi & Co. For Petitioner in WP/2477/2021 and applicant
in IA/20293/2022.
Mr Arshad Shaikh, Senior Advocate a/w Mr. Rohaan Cama, Mr. Aditya
Udeshi a/w Mr Sanjay Udeshi, Mr. Netaji Gawde, Mr. Rahul Sanghavi i/
b. M/s Sanjay Udeshi & Co. For Petitioner in WP/2479/2021 and
Applicant in IA/20295/2022.
Dr. Milind Sathe, Senior Advocate a/w Mr Yash Momaya a/w Mr Samit
Shukla a/w Ms Saloni Shah a/w Ms Sayali Diwadkar i/b DSK Legal for
Petitioner in WP/2475/2021 and Applicant in IA/20294/2022.
Mr R.D. Soni a/w Ms. Bhumika Bajaj i/b Ram & Co. For Petitioner in
WP/2476/2021 & WP/6916/2022 and Applicant in IA/20296/2022.
Mr Girish Godbole, Senior Advocate a/w. Ms Shivani Samel, i/b. Mr
Aditya P. Shirke for Petitioner in WP/1214/2021 and Applicant in
IA/20297/2022.
Dr. Birendra D. Saraf, Advocate General with Mr. P.P. Kakade,
Government Pleader with Ms. M.P. Thakur, AGP for Respondent State.
Mr Tejesh Dande for Navi Mumbai Municipal Corporation in
WP/2473/2021, WP/2479/2021, WP/6916/2022, WP/2486/2021, WP/
2475/2021, WP/1214/2021
Mr. G.S. Hegde, Sr. Advocate a/w. Ms. P.M. Bhansali, for Respondent/
CIDCO and for applicant in IA/1067/2022, IA/1066/2022,
IA/1069/2022, IA/1064/2022, IA/1062/2022, IA/1063/2022,
IA/1068/2022.
_______________________
CORAM: G. S. KULKARNI
& R.N. LADDHA, JJ.
RESERVED ON : 23 March, 2023
PRONOUNCED ON: 3 May, 2023
_______________________
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WP2473_2021.DOC
JUDGMENT (Per G.S. Kulkarni, J.)
1. Rule. Rule made returnable forthwith. Respondents waive service. By
consent of the parties, heard finally.
2. This batch of petitions raise common issues of law and facts, hence can
be conveniently disposed of by this common judgment.
3. The conspectus of facts, which are not in dispute are required to be
stated:
The City and Industrial Development Corporation (for short "CIDCO")
is impleaded as a respondent in all these petitions. CIDCO issued public
tenders sometime in February, 2021 inviting bids for allotment of residential-
cum-commercial plots of land at Navi Mumbai. Such plots offered for
allotment, were plots belonging to and/or vested with the CIDCO. The
petitioners participated in the different public tenders as invited by CIDCO.
The petitioners were successful allottees qua the plots as alloted to them by the
CIDCO and subject matter of the present proceedings. In participating in such
tenders, each of the petitioners have deposited with CIDCO substantial
amounts, as earnest money deposit, later to be adjusted in the total
consideration to be paid by them, namely, the lease premium to be paid to the
CIDCO. The first instalment of the lease premium was to be paid in four
weeks from the date of allotment and the second instalment after six weeks
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from the payment of first instalment. Thus, within ten weeks, the total amount
of lease premium was required to be deposited by the petitioners with the
CIDCO.
4. Before the petitioners could deposit the first instalment of lease
premium with the CIDCO, under their respective allotments, clouds of
uncertainty hovered in relation to these plots of land allotted to the petitioners,
on account of actions being resorted by the Navi Mumbai Municipal
Corporation (for short "NMMC"), namely, that it was proposed by the NMMC
that these plots of land, which were allotted to the petitioners shall be subjected
to reservation for different public purposes. It is not necessary to delve into
details of such public purpose for which the plots were proposed to be reserved,
suffice it to observe, that such issue of reservation being asserted by the
Municipal Corporation and the same being resisted by the CIDCO was subject
matter of litigation before this Court in Public Interest Litigation No. 22 of
2021 in case of Nishant Karsan Bhagat & Ors.vs. City and Industrial
Development Corporation of Maharashtra Ltd. & Ors. and in Public Interest
Litigation No. 37 of 2021 in case of Mr. Sunil J. Garg & Ors. vs. State of
Maharashtra & Ors.
5. Some background on such PIL proceedings can be noted. The State
Government sometime in the year 1970 conceived a plan to set up a twin city
across the Mumbai harbour at the relevant time known as "New Bombay" and
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now "Navi Mumbai". According to the provisions of Section 113 of the
Maharashtra Regional and Town Planning (for short "MRTP Act") which falls
in Chapter VI of the MRTP Act providing for "New Towns", specified sites
came to be designated for setting up the new town of Navi Mumbai. Sub-
section (3A) came to be inserted in Section 113 of the MRTP Act by
Maharashtra Act 21 of 1971 authorizing the State Government to constitute a
New Town Development Authority. Sub-section (3A) as inserted by the said
amendment reads thus:
"Having regard to the complexity and magnitude of the work involved in
developing any area as a site for the new town, the time required for
setting up new machinery for undertaking and completing such work of
development, and the comparative speed with which such work can be
undertaken and completed in the public interest, if the work is done
through the agency of a corporation including a company owned or
controlled by the State as a new town, the State Government may
notwithstanding anything contained in sub-section (2), require the work
of developing and disposing of land in the area of a new town to be done
by any such corporation, company or subsidiary company aforesaid, as
an agent of the State Government; and thereupon, such corporation or
company shall, in relation to such area be declared by the State
Government, by notification in the Official Gazette, to be the New
Town Development Authority for that area".
6. The State Government, thereafter, issued a notification under sub-
section (3A) of Section 113 of the MRTP Act, designating CIDCO as the New
Town Development Authority, for the New Bombay area. In exercise of its
authority as a New Town Development Authority, CIDCO was authorized and
empowered to develop lands as vested in it in the various nodes (areas) of Navi
Mumbai and make allotment of plots. In the year 1975, CIDCO also framed
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the New Bombay Disposal of Land Regulations, 1975 for disposal of the
lands, as vested with the CIDCO, for residential and commercial uses etc. and
the revenue which was received from the disposal of such land was being
utilized by CIDCO for the Planning and Development of the new town. By
such process, CIDCO developed lands for various public purposes including to
provide various amenities, by designating lands for bus depots, railways,
gardens, playgrounds, airport, hospitals, commercial establishments and
residential areas. The lands vested with the CIDCO were being gradually
developed and after such development, by virtue of the powers vested with the
CIDCO as a New Town Development Authority, CIDCO at all material times,
had become entitled to make allotment of the plots by following the lawful
procedure.
7. Almost after about twenty years of CIDCO being designated as the new
town development authority, the State Government by a notification dated 17
December, 1991, issued under section 3 of the Bombay Provincial Municipal
Corporation Act, 1949 (now the NMMC Act, 1949) constituted the NMMC
for the areas of 44 revenue villages as specified therein w.e.f. 1 January, 1992.
The State Government by its orders dated 15 December, 1994 and 29 July,
2008 conferred on the NMMC powers as a "planning authority" in two phases.
Thus, the NMMC also became the "planning authority" within the meaning of
Section 2(19) of the MRTP Act, in its capacity as the "local authority" as
3 May, 2023
WP2473_2021.DOC
defined under section 2(15) of the MRTP Act, that is a Municipal Corporation
as constituted under the NMMC Act, 1949.
8. Also, by a notification dated 15 December, 1994 as issued by the State
Government under Section 154 of the MRTP Act, the NMMC was permitted
to act as a Planning Authority in respect of the developed nodes of Vashi,
Sanpada, Belapur, Kopar-khairne and Airoli as also was empowered to exercise
all powers under Chapter III and IV of the MRTP Act. Such notification also
provided that considerable portion of land in the said areas were still to be
developed and disposed of by CIDCO, hence, in order to enable CIDCO to
discharge its functions as the New Town Development Authority, it would not
be necessary for CIDCO to approach the NMMC for development permission
in regard to areas of land being vested in and developed by CIDCO. Although
the NMMC was constituted and designated as Planning authority, however,
the mandate and authority vested with the CIDCO to exercise powers as the
New Town Development Authority and accordingly to take all actions in
regard to the portions of land to be developed and disposed of by the CIDCO,
continued to remain in operation and subsisted with CIDCO, despite the
NMMC being constituted.
9. Thus, for the Navi Mumbai area, there were two planning authorities
under the MRTP Act, which remained functional, however, under different
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spheres. The original authority, being the CIDCO, with whom the functions of
Planning and Development, and preparation of the development plan for the
purpose of Town Planning stood vested in the year 1980, in exercise of such
powers, had prepared a "Draft Development Plan" which was submitted to the
State Government. By notification dated 18 January, 1980, the State
Government, in exercise of powers under section 31(1) of the MRTP Act,
sanctioned such Draft Development Plan to be the final development plan
which was in the form of a structural plan for the New Town area to be
brought into force w.e.f. 1 March, 1980. CIDCO had accordingly continued to
function as the Development Authority on this front.
10. On 14 December, 2017, NMMC published a notification under section
23(1) of the MRTP Act declaring its intention to prepare a draft development
plan for the area under its jurisdiction. Immediately thereafter, on 22
December, 2017 NMMC addressed a letter to the CIDCO directing CIDCO
not to sale any vacant land owned by it in view of the notification under
section 23(1) of MRTP Act. This letter was not in the public domain. On such
backdrop, on 13 December, 2019, the General Body of NMMC passed a
resolution to the effect that several plots in different nodes of Navi Mumbai be
reserved for public purposes. It is pertinent that the said General Body
resolution was also not in the public domain albeit it was merely a resolution.
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11. Notably, the stand of the NMMC acting under the General Body
resolution dated 13 December, 2019 to the effect that the CIDCO should not
allot/dispose of any vacant land owned by it, in view of a notification published
by the NMMC under section 23(1) of MRTP Act declaring its intention to
prepare a draft development plan, was not part of any of the disclosure in the
tenders issued by the CIDCO. The plots of land in respect of which CIDCO
had issued tenders, in fact were sought to be reserved by NMMC for public
purposes. The petitioners obviously not aware and/or oblivious of such stand
of the NMMC, submitted their respective bids, participating in the tenders in
question. It is later on, in view of certain litigation which had come before this
Court in Writ Petition No. 9283 of 2019 (Arham Developers vs. CIDCO) and
in another case of Fornex Realty, who were similarly placed like the petitioners,
and who were refused development permissions and/or whose allotment was
cancelled on uncertainity created by such issue, the petitioners discovered that
there were serious issues between NMMC and CIDCO in relation to the plots
being allotted to them and which were not disclosed to the petitioners or other
allotees in the tenders. It was also discovered by the petitioners that the plots
which were represented to the petitioners to be unencumbered and freehold,
were actually sought to be reserved by the NMMC for public purposes, and
hence, if the petitioners were to take forward the allotment process, there was
immimently a chance that the allotment itself would not be fruitful. This for
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the reason that on one hand the petitioners would make the entire payment to
the CIDCO, and in lieu thereof what would be received by them from CIDCO
are plots of land which would remain of no utility for any commercial/
residential development for which the public bids were invited by CIDCO in
which the petitioners were successful bidders. In these circumstances, the
petitioners have approached this Court. The prayers in all these petitions are
almost similar. Illustratively, we note the prayers in Writ Petition No. 2473 of
2021 (Shelton Infrastructure Pvt. Ltd. ), which reads thus:
"a) That this Hon'ble Court be pleased to issue Writ of Mandamus or
any other writ in the nature of Mandamus or any other appropriate writ,
order or direction under Article 226 of the Constitution of India directing
the respondent no. 1 to issue directions and/or instructions, and
respondent nos. 2 and 3 to follow such directions and/or instructions, to
exclude any reservation on the said plot and specify the purpose and use of
the said Plot as Residential and Commercial;
b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or
such other writ(s)/order(s) and/or direction(s) in the nature of Mandamus,
directing respondent no. 3 to process/consider development permissions in
respect of the said plot, as and when applied for, in accordance with law and
on the basis that the land use of the said plot is residential and commerical;
c) That without prejudice and in the alternative to prayer clauses (a)
and (b) above, this Hon'ble Court be pleased to issue a Writ in the nature
of Mandamus or such other writ(s)/order(s) and/or direction(s) in the
nature of Mandamus directing respondent no. 2 to refund the Earnest
Money Deposit, i.e., Rs.2,53,91,000/- paid by the petitioner in respect of
the said plot along with interest thereon @ 18% p.a. or at such rate as this
Hon'ble Court deems fit from the date of deposit till refund/payment,
without any deduction or adjustment or penalty;
d) That this Hon'ble Court be pleased to issue a Writ of Mandamus or
such other writ(s)/order(s) and/or direction(s) in the nature of Mandamus,
directing respondent no. 2 to amend/revise the terms of the Allotment
Letter to delete Clause G and provide for clause regarding extension of
time to pay lease premium to bring it in harmony with the provisions of the
Navi Mumbai Disposal of Lands Regulations 2008;
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e) That this Hon'ble Court be pleased to issue a Writ of Mandamus or
such other writ(s)/order(s) and/or directions(s) in the nature of Mandamus,
directing respondents to charge for additional FSI only in accordance with
Unified Development Control & Promotion Regulations and nothing in
addition thereto;
f) That pending the hearing and final disposal of the instant Writ
Petition, this Hon'ble Court be pleased to direct Respondent no. 2 to
suspend and/or extend the schedule of payment stipulated at clause G of
the Allotment Letter, Exhibit I hereto, without levying on the petitioner,
any interest or charges or penalty of any nature, monetary or otherwise,
and/or forfeiture and/or termination of the Allotment Letter, Exhibit "I"
hereto;
g) That pending the hearing and final disposal of the instant Writ
Petition, this Hon'ble Court be pleased to restrain respondent no. 2 from,
in any manner, levying or charging or demanding or recovering any further
amount under the said Scheme or any interest or charges or penalty
monetary or otherwise, from the petitioner;
(h) That pending the hearing and final disposal of the instant Writ
Petition, this Hon'ble Court be pleased to direct Respondent no. 2 to
deposit in this Hon'ble Court, with all accrued interest thereon, an amount
of Rs.2,53,91,000/- being the Earnest Money Deposit paid by the
petitioner for the said plot with necessary directions that the said amount
be invested and earn interest as the Court deems appropriate.
(I) For ad-interim reliefs in terms of prayers(f), (g) and (h) above."
12. The above Writ Petition was moved before the Court for ad-interim
reliefs on 7 May, 2021 when a co-ordinate Bench of this Court, of which one of
us (G.S. Kulkarni, J.) was a member, passéd an order granting interim
protection in terms of the following order:
1. We have heard Mr. Tulzapurkar, learned senior counsel for the
petitioners, Mr.Hegde, learned counsel for the CIDCO and Mr.Marne,
learned counsel for the Navi Mumbai Municipal Corporation.
2. The petitioners in these three petitions are similarly situated. They
are participants in a tender process initiated by the CIDCO for allotment
of residential-cum-commercial plots. The CIDCO has held them eligible
for such allotment. At the time of submission of their bids, the
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petitioners have paid substantial amounts as 'Earnest Money Deposit' and
now the allotment process has reached to a stage that the first installment
of the lease premium is required to be paid by the petitioners after some
days. It is at this stage, by certain actions which are taken by Navi
Mumbai Municipal Corporation, an uncertainty has arisen qua the
proposed allotment in favour of the petitioners, for the reason that these
open and free plots offered to the petitioners, are now sought to be placed
under reservation by Navi Mumbai Municipal Corporation for public
purposes.
3. The contention of the petitioners is to the effect that if the plots are
now to be reserved, the entire purpose for which the petitioners have
participated in the CIDCO's tender process would stand nullified as the
petitioners would not be in a position to use the plots for the purpose of
which the allotment procedure was undertaken by the CIDCO. The
petitioners intention was never to participate in a process to seek
allotment of any plots which in any manner are encumbered.
4. The petitioners have also contended that when the plots were so
notified under the tender, there was no proposal to have any reservation
for the public purpose qua such plots. In fact the CIDCO had notified
that the plots shall be used only for the purposes for which they have
been notified that is for residential and commercial use.
5. On the backdrop of the controversy, the immediate urgency which
has been pointed out on behalf of the petitioners is that the first
installment of the lease premium is immediately payable to the CIDCO
and if such an installment is paid and in the event the plots are declared
to be under reservation, the entire purpose of the allotment would stand
nullified causing a serious prejudice and injury to the petitioners. They
have accordingly prayed for interim reliefs to postpone and/or suspend
the payment of the installment which is immediately due.
6. Considering the nature of the grievances as urged on behalf of the
petitioners, we would require the Navi Mumbai Municipal Corporation
and the CIDCO to file reply affidavits and accordingly adjourn these
petitions, and while doing so grant an interim protection to the
petitioners. We accordingly adjourn the hearing of these petitions to July
13, 2021. The respondents-Corporation and CIDCO shall file their
respective reply affidavits by June 21, 2021. Rejoinder, if any, be filed by
July 05, 2021.
7. Till July 30, 2021 or until further order, whichever is earlier, there
shall be ad-interim reliefs in terms of prayer clause (f) in writ petition
Nos.10294 of 2021 and 10295 of 2021 and prayer clause (i) in writ
petition No.10316 of 2021 which read thus:-
"Writ Petition Nos.10294 of 2021 and 10295 of 2021
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f. That pending the hearing and final disposal of the instant
Writ Petition, this Hon'ble Court be pleased to direct Respondent
No.2 to suspend and/or extend the schedule of payment
stipulated at clause G of the Allotment Letter, Exhibit I hereto,
without levying on the Petitioner, any interest or charges or
penalty of any nature, monetary or otherwise, and/or forfeiture
and/or termination of the Allotment Letter, Exhibit "I" hereto."
" Writ Petition No.10316 of 2021
I. That pending the hearing and final disposal of this Writ
Petition, this Hon'ble Court be pleased to direct Respondent
No.2 to extend and/or suspend the Schedule of Payment at
Clause C of the Allotment Letters, without levying any interest or
charges or penalty or late payment charges of any nature,
whatsoever on Petitioner."
(emphasis supplied)
13. Another batch of petitions with similar cause of action (Writ Petition
(St.) Nos. 10617 of 2021, Writ Petiton (St.) No. 10614 of 202, Writ Petiton
(St.) No. 10371 of 2021 and Writ Petition No. 1214 of 2021) were moved
before the Vacation Bench of this Court on 11 May, 2021, when following
interim order was passed:
"1. Heard.
2. The Petitioners are participants in a tender process initiated by
the CIDCO for allotment of residential-cumcommercial plots.
The CIDCO has held them eligible for such allotment and
allotted plot nos.8 + 9, Sector 18, Sanpada, Navi Mumbai. At the
time of submission of their bids, the Petitioners have paid
substantial amounts as 'Earnest Money Deposit' and now the
allotment process has reached to a stage that the frst installment
of the lease premium is required to be paid by the Petitioners
after some time.
3. It is at this stage, certain actions which are taken by Navi
Mumbai Municipal Corporation, an uncertainty has arisen qua
the proposed allotment in favour of the Petitioners, for the
reason that these open and free plots offered to the Petitioners,
are now sought to be placed under reservation by Navi Mumbai
Municipal Corporation for public purposes.
3 May, 2023
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4. The learned Senior Counsel for the Petitioner submits that in
view of these subsequent development, they approached this
Hon'ble Court to restrain the Respondents from insisting to pay
the installment of lease premium. He submits that similar issue
was before this court in Writ Petition (St.) No.10294 of 2021
Shelton Infrastructure Pvt. Ltd. vs. State of Maharashtra through
Urban Development Department & Ors., Writ Petition (St.)
No.10295 of 2021 Shelton Infrastructure Pvt. Ltd. vs. State of
Maharashtra through Urban Development Department & Ors.
and Writ Petition (St.) No.10316 of 2021 Godrej Properties Ltd.
vs. State of Maharashtra through Urban Development
Department & Ors. He submits that after hearing all the parties,
this court by order dated 07.05.2021, directed Respondent
CIDCO not to take any coercive action against the Petitioners in
those matters. He submits that those three Writ Petitions are
pending for hearing and fnal disposal on its own merits. He
submits that similar orders may be passed in the present
proceeding so that issue can be decided simultaneously along
with other pending matters.
5. These facts are not disputed by Mr.Hegde, the learned
Counsel for the appearing for the CIDCO. He submits that there
is no order from Navi Mumbai Municipal Corporation that they
are reserving those plots for public purpose. Therefore, there is
no question of granting any ad-interim relief at this stage. He
further submits that if this court comes to the conclusion that
Petitioners are entitled adinterim relief, in that case, issue about
payment of interest may be kept open.
6. We have heard both the sides at length. We have also gone
through the order dated 07.05.2021 in Writ Petition (St.)
No.10294 of 2021. Similar issue is pending before this court for
hearing and fnal disposal on its own merits. In view of these facts,
following order is passed:
(a) Respondents to fle their affdavit in reply on or before
21/06/2021, with copy to other side.
(b) Rejoinder, if any, to be fled on or before 05/07/2021,
with copy to other side.
(c) Ad-interim relief in terms of prayer clauses (i) and (j)
is granted, which read thus :-
"(i) That pending the hearing and fnal disposal of this
Writ Petition, this Hon'ble Court be pleased to direct
Respondent No.2 to extend and/or suspend the
Schedule of Payment at Clause C of the Allotment
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Letter, without levying any interest or charges or
penalty or late payment charges of any nature,
whatsoever on the Petitioner;
(j) That pending the hearing and fnal disposal of this
Writ Petition, this Hon'ble Court be pleased to
restrain Respondent No.2 from cancelling/
terminating the allotment of the Plot to the
Petitioner; and terminating the Allotment Letter; and
from taking any coercive or penal steps under the
Tender or under the Allotment Letter."
(d) The matter to appear on the board on 13/07/2021
with connected Writ Petition Stamp No. 10294 of 2021."
(emphasis supplied)
The above interim reliefs as granted in the present proceedings have continued
to operate till date.
14. It needs to be noted that in the meanwhile, PIL petitions Nishant
Karsan Bhagat vs. CIDCO and Sunil J. Garg vs. State of Maharashtra (supra)
were heard by a co-ordinate Bench of this Court, of which one of us (G.S.
Kulkarni, J.) was a member, and were decided by a judgment and order dated
30 August, 2022. In such decision, the Division Bench inter alia held that it
was not permissible for NMMC to make reservation of the plots of land vested
with CIDCO in its capacity as the New Town Development Authority, being
the plots, which were subject matter of allotment to the petitioners. It was held
that CIDCO rightfully auctioned these plots of land of which the petitioners
were beneficiaries, to be developed at the hands of the petitioners/allottees,
who were also the respondents in the said petition. The following questions
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were framed by the Division Bench as seen in paragraph 55 of the judgment,
which were answered in the negative:
"(i) Whether the General Body resolution of the NMMC proposing
to reserve CIDCO plots of land for public amenities, in the absence of
publication of a Draft Development Plan as per the provisions of
Section 26 of the MRTP Act would create an embargo of a
reservation?
(ii) Whether passing of a resolution by the General Body of the
NMMC proposing to reserve the plots/lands, can in any manner
divest the rights of CIDCO to make allotment of the plots of land?
(iii) Whether the directions issued by the State Government under
section 154 of the Act dated 14 June, 2021 and subsequent directions
dated 6 September, 2021 are in any manner illegal contrary to the
provisions of the MRTP Act?
15. The decision of the Division Bench in Nishant Karsen Bhagat (supra)
was assailed before the Supreme Court by one of the petitioners in the said PIL
petitions in the proceedings of Special Leave to Appeal (Civil) No. 22639 of
2022 (Chandra Mohan Bhatnagar & Ors. vs. State of Maharashtra & Ors. ),
which came to be dismissed by the Supreme Court by an order dated 10
February, 2023.
16. Thus, the Division Bench in Nishant Karsen Bhagat's case having held
that there was no embargo of any reservation in respect of plots of lands in
question being allotted by CIDCO to the petitioners, and that the said plots
could not be subjected to reservation in any proposed development plan
necessarily a consequence was brought about that the allotment procedure
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could be taken forward, as the dark clouds of uncertainty faded into
insignificance.
17. It is on the above backdrop the proceedings are before us today. On
behalf of the petitioners, the common contention is to the effect that dismissal
of SLP before the Supreme Court, affirming the decision of this Court in
Nishant Bhagat's case (supra) has paved the way for finalising the allotments of
these plots in favour of the petitioners by the CIDCO, for which the CIDCO
needs to accept the two installments of lease premium, the payment of which
had remained suspended by virtue of the interim orders passed by this Court in
the present petitions and as noted above.
18. Mr. Viraj Tulzapurkar, Dr. Milind Sathe, Mr. G.S. Godbole, Mr. Rajeev
Chavan and Mr. Madon, learned senior counsel for the petitioners have made
the following submissions:
(i) On CIDCO's tender, the petitioners submitted their bids for the plots of
land which were unencumbered and having potential of development for the
purpose of for which the bids were invited. There was not a slightest indication
in the public advertisement and the information brochure, inviting bids that
the plots for which the petitioners would be submitting their offers, in any
manner were subject to any reservation for public amenities at the hands of
NMMC. In such situtation, if the petitioners were to proceed to make
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payment of installments of lease premium in the prevailing situtation, it would
have been nothing more than the petitioners being put in a position of serious
prejudice, jeopardy and litigation.
(ii) It was never the intention of the petitioners nor the intention of the
CIDCO that the petitioners who were being allotted plots, should in any
manner be entangled in litigation, in respect of the allotted plots and/or receive
plots having no development potential, being created by virtue of the actions of
the NMMC, asserting that these plots shall be subjected to reservation for
public purpose. It can never be an intention of commercial persons like the
petitioners, that by participating in such public tenders issued by CIDCO,
would not be having the benfit of what was offered by the CIDCO and/or that
any uncertainty would prevail after the full amount of lease premium was paid
by the petitioners.
(iii) In regard to the uncertainty created by the reservation as proposed by the
NMMC over the allotment of these plots, it is submitted that in paragraph 6 of
the affidavit-in-reply of Mr. Hemant Thakur, filed on behalf of NMMC, it was
categorically stated that the General Body in its meeting held on 13 December,
2019 has accorded sanction to the Draft Development Plan with major changes
and further resolved to publish it for inviting suggestions/objections from the
general public as envisaged under section 26(1) of the MRTP Act. It is
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submitted that the General Body Resolution No. 1516 dated 13 December,
2019 was received by the Town Planning Officer on 28 February, 2020 which
had inter alia suggested reservation of various plots which were yet to be
allotted by CIDCO. In the affidavit it was categorically stated that in respect of
plots involved in the petition, the General Body had suggested reservation and
that after incorporating major changes suggested by the General Body
Resolution, further process of publication of the draft development plan for
inviting suggestions and objections was to be initiated.
(iv) It is submitted that the reply affidavit of NMMC had also made it clear
that a communication was addressed by NMMC to the CIDCO on 22
December, 2017 inter alia informing the CIDCO that without permission from
the NMMC, no sub-division, amalgamation or allotments of plots to
individuals shall be granted by CIDCO. It is submitted that CIDCO also
pointed out in its reply affidavit that CIDCO had addressed letters dated
1February, 2021 and 5 March, 2021 to the State Government as also NMMC
to delete the proposed reservations in the draft Development Plan clamped on
CIDCO's 300 plots. In such context, NMMC had by its letter dated 12 April,
2021 had submitted its detailed report to the Government to protect the
statutory rights of NMMC as Planning and Local Authority and also had
sought protection from the State Government to allow NMMC to publish the
draft Development Plan. It is submitted that after allotment letters were
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addressed in April, 2021 to the Assistant Director of Town Planning of the
NMMC, informing that the petitioners had participated in the E-tender cum
E-auction, as undertaken by CIDCO and that the petitioners were successful
bidders and beneficiaries of the allotment letters issued by CIDCO, allotting
plots for which the bids were submitted and thereafter the petitioner was to
make payment of first installment of lease premium by 13 May, 2021 and
second installment by 13 June, 2021. In such context, NMMC was requested
by the petitioners that the petitioners were given to understand that NMMC in
its Planning Committee had reserved some plots as public utility plots and
hence it be informed to confirm whether the plot as allotted to the petitioners
were reserved for public utility purposes by the NMMC or otherwise, before
the installments are paid. However, no reply was received from NMMC and in
these circumstances, the petition came to be filed and this Court had granted
protection to the petitioners on 7 May, 2021and 11 May, 2021. Also such
letters are addressed to CIDCO, however, no reply was received. It is thus
submitted that all these are the circumstances which would show that there
were encumberances on the plots of land, namely, of the reservation for public
utility and it is for such reason, a protection came to be granted by interim
orders passed by this Court. It is contended that the Vacation Bench of this
Court in such circumstances on 11 May, 2021 granted interim relief in terms of
prayer clause (i) and (j), which was a direction to CIDCO to extend and/or
3 May, 2023
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supend the Schedule of Payment at Clause C of the Allotmnet letter, without
levying any interest or charges or penalty or late payment charges of any nature,
whatsoever on the petitioner and also to restrain CIDCO from
cancelling/terminating the allotment of plots to the petitioner and terminating
the allotment letter and from taking any coercive or penal steps under the
tender or under the allotment letter.
(v) The petitioners, hence, have rightly invoked the jurisdiction of this
Court, not only in assailing such action of the NMMC, in regard to which the
petitioners have already succeeded in their prayers as made in the petition to
such extent, when the PIL petitions came to be decided in their favour by the
judgment of the Division Bench in "Nishant Karsan Bhagat" case (supra) and
further the Supreme Court dismissing the SLP filed against the said decision of
the Division Bench.
(vi) It is submitted that the petitioners were throughout protected by
substantive orders, which certainly have legal consequences inasmuch as the
CIDCO could not have demanded payment of lease premium either the first or
the second installment, by virtue of the said interim orders. Thus, by the
interim orders passed by this Court on 7 May 2021 and 11 May 2021 the
petitioners have remained protected. The legal consequence brought about by
the orders passed by this Court cannot be overlooked by CIDCO. The CIDCO
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is now under an obligation to pave the way to enable the petitioners to make
payment of the balance lease premium, without demanding any interest or
delayed payment charges, as now the uncertainty over the reservation has come
to an end as a result of the SLP being dismissed against the decision of the
Division Bench of this Court in Nishant Karsan Bhagat's case (supra).
(vii) It is submitted that the consequences as brought about by the interim
orders dated 7 May, 2021 and 11May, 2021 were accepted by the CIDCO and
now when the uncertainty of allotment of plots has been removed in view of
the orders passed by the Supreme Court dismissing the SLP, the CIDCO
cannot turn around and take a position that CIDCO would now not accept two
installments of lease premium payable by the petitioners under the allotment
of plots in question. It is submitted that even the Earnest Money Deposit at all
material times stood deposited with the CIDCO and it was never attempted to
be refunded to the petitioners much less by praying for modification of the
interim orders dated 7 May, 2021 and 11 May, 2021.
(viii) It is submitted that the petitioners were in a total state of uncertainty
inasmuch as Section 46 of the MRTP Act was staring at the petitioners once
the NMMC had decided to assert that the plots of land allotted to the
petitioners are under reservation. This for the reason that even if the
petitioners were to proceed to pay the balance lease premium and accept
3 May, 2023
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allotment, plots which were purportedly reserved by the NMMC, the
petitioners could not have proceeded to develop the plots in the light of the
proposed reservation.
(ix) It is next submitted that the position of the plots alloted to the
petitioners being proposed to be reserved by the NMMC was so firm that the
State Government was required to intervene by issuance of a notification under
section 154 of MRTP Act dated 14 June, 2021 and 6 September, 2021, which
itself was subject matter of challenge in the PIL petitions filed by Nishant
Karsen Bhagat and by Sunil J. Garg. It is thus submitted that till the Division
Bench of this Court decided that the NMMC could never exercise its powers as
Planning Authority to reserve the plots in question, being allotted to the
petitioners, uncertainty on the allotment of the plots in favour of the
petitioners very much subsisted, till the same was ultimately confirmed by the
Supreme Court in the SLP being dismissed on 10 February, 2023.
(x) It is submitted that most significantly the brochure inviting bids in
respect of plots inviting tenders, in regard to the time limit for payment of
installment of lease premium recognize the powers of the Managing Director
to extend the period determined in the payment of installments of lease
premium, being Clause No. 19 and 20. It is submitted that such clauses as
contained in the brochure were completely in consonance with the statutory
3 May, 2023
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regulations, being the Navi Mumbai Disposal of Land (Amendment
Regulations, 2008), as framed by the CIDCO in exercise of powers under sub-
clause (i)(a) of Section 159(1) of MRTP Act. It is submitted that however in
the allotment letter as issued to the petitioners, a representation as contained in
Clauses 19 and 20 of the brochure was absent, as the allotment letter contained
a clause contrary to the same, namely, Clause (g) when it provided that all the
installments of lease premium shall be required to be paid within the time limit
as prescribed in the allotment letter and no extension of time whatsoever will
be given to the allottee by the Corporation under any circumstances.
(xi) It is submitted that to overcome the situation of any such uncertainty,
Regulation 6 of the New Town Disposal of Land Regulations (supra), clearly
provides for a power with the Managing Director to grant relaxation of the
time limit to make payment of the lease premium, as may be prescribed in the
allotment letter for making payment of lease premium and for relaxation for
making of payment on delayed payment charges. This is a fit case where the
Managing Director ought to have exercised his powers and ought to have
accepted two installments of lease premium from the petitioners.
(xii) Supporting such contentions, learned senior counsel for the petitioner
has placed reliance on the decision of Hira Tikkoo vs. Union Territory,
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Chandigarh & Ors.,1 and the decision of Division bench of this Court in
Nishant Karsen Bhagat vs. CIDCO & Ors. (supra).
19. On the other hand, Mr. Hegde, learned senior counsel for CIDCO has
made the following submissions:
(i) At the outset, it is not disputed that the protection granted to the
petitioners by virtue of interim orders dated 7 May, 2021 and thereafter on 11
May, 2021 has contined to operate. Mr.Hegde would, however, submit that
now as the petitions are at the stage of hearing, the interim orders ought to
have any consequence on the principal prayers, as made in the petition.
(ii) It is submitted that it is not in dispute that in February, 2021,
brochure/advertisements were published inviting e-Tenders cum E-Auctions.
The bidders had submitted online bids by making payment of Earnest Money
Deposit and that the bids were finalized by end of February, 2021 and
allotment letters were issued. He would submit that allotment letters issued to
the petitioners have a specific condition, namely, that the lease premium is
required to be paid by allotees/petitioners in two installments divided into a
period of 10 weeks and no extension of time shall be granted in making
payment of the installments.
1 (2004) 6 SCC 765
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(iii) It is submitted that PIL petitions filed by Nishant Karsen Bhagat (supra)
and Sunil J. Garg (supra) were frivolous and there was no impediment for the
petitioners to make payment of lease premium without prejudice to their rights
and contentions. The petitioners were in fact required to show their bonafides
by depositing amounts of lease premium with CIDCO. However, the
petitioners took a contrary position and approached this Court and prayed for
interim orders.
(iv) It is his submission that by virtue of interim orders as obtained by the
petitioners, the petitioners did not make payment of the amounts and they had
retained the said amounts and in fact used the amounts, which were to be paid
by the petitioners to CIDCO. Mr. Hegde has submitted that in this situation,
the petitioners cannot be permitted to take advantage that now they would not
pay the interest and/or delayed payment charges, having clearly been put to
notice that the petitioners in fact were beneficiaries of such amounts and
having utilized by not paying it to CIDCO.
(v) It is submitted that the NMMC by its letter dated 6 April, 2021 issued
to the petitioner (petitioner in Writ Petiton No. 2473/2022) in response to a
right to information application of the said petitioner dated 1 March, 2021,
had not furnished correct information in regard to the reservation of the said
plots. Mr. Hegde's submission is that in fact in law, the plots were never under
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reservation and what the CIDCO had tendered were encumbered plots and for
such reason, it was incumbent for the petitioner to make payment of lease
premium as per the terms and conditions of allotment letter. It is submitted
that the petitions are not maintainable, as the petitioners are demanding
something which is contrary to the terms and conditions of the allotment letter.
(vi) It is submitted that these petitions were filed only on an apprehension.
In fact the directives of the State Government issued under section 154 of the
MRTP Act were very clear that CIDCO had the authority to make allotment of
the plots in question and accordingly, the allotments were made to the
petitioners and, therefore, the petitioners were required to make payment of
the installments of lease premium. However, the petitioners were not willing to
make such payment, thus, necessarily the petitioners would be required to pay
delayed payment charges/interest, as per the allotment letters as also as
permissible under the New Bombay Disposal of Land Regulations. The
petitioners in fact on their own accord ought to have paid the lease premium
amounts.
(vii) It is submitted that, in fact after the Division Bench of this Court
dismissed the PIL petitions filed by Nishant Karsen Bhagat (supra) and by Mr.
Sunil Garg (supra), it was incumbent on the petitioners to make the payment
and they ought not to have waited till the Supreme Court dismissed the Special
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Leave Petition and thus, there is no question of any relief being granted to the
petitioners. It is accordingly, submitted that the interim orders need to be
vacated and the petitions be dismissed. In support of such contentions, Mr.
Hegde has placed reliance on the decision of the Supreme Court in Amarjeet
Singh & Ors. vs. Devi Ratan & Ors. 2 to submit that it is a settled principle of
law that no litigant can derive any benefit from mere pendency of case in a
court of law, as the interim order passed by the Court always merges in the final
order to be passed in the case.
20. In rejoinder, on behalf of the petitioners, learned senior counsel for the
parties would submit that the present petitions were always listed along with
the PIL petitions as the petitioners were also respondents in the PIL petitions,
and in fact the petitioners have succeeded insofar as part of their prayers as
made in the present petitions in regard to the issue of reservation by NMMC
on the tendered plots, hence CIDCO cannot take a position that petitions were
filed on apprehension. It is submitted that for such reason, prayer clause (a) is
not required to be adjudicated. It is next submitted that it is too much for the
CIDCO to expect that the allottees like the petitioners get sandwiched between
two public bodies, namely, CIDCO and NMMC. The petitioners having partly
succeeded in their petitions on the prayers on the NMMC purporting to make
2 2009 SCC Online SC 1817
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reservation on these plots, hence, the decision of the Supreme Court in
Amarjeet Singh (supra) is totally not applicable.
Analysis and Conclusion
21. We have heard learned senior counsel for the petitioners. We have
perused the record.
22. Indisputedly, the petitioners are the beneficiaries of public tenders issued
by CIDCO inviting bids for allotment of plots, which stood vested in the
CIDCO. The vesting of such plots in the CIDCO was certainly by virtue of the
authority and power as conferred on the CIDCO by the State Government
appointing CIDCO as the 'New Town Development Authority.' It is now clear
that although NMMC was constituted, CIDCO never lost its authority and
power to dispose of the plots in question, in accordance with the statutory
regulations, namely, the New Bombay Disposal of Lands Regulations, as noted
above. It is by virtue of such statutory authority, CIDCO had invited the bids
in question in February, 2021. The petitioners are all successful bidders. They
have been issued allotment letters allotting the respective plots in their favour.
3 May, 2023
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23. At this juncture, it needs to be observed that when public tenders came
to be issued by the CIDCO, the plots in question as allotted to the petitioners
in no manner whatsoever were indicated to be encumbered and/or were under
any proposed reservation of the NMMC. Thus, the legitimate expectation of
the petitioners was certainly, that the petitioners when were receiving allotment
of such plots, after paying extraordinary large sums of money/valuable
consideration, the plots would be available to the petitioners to be developed
by them, for the purpose as set out in the brochure and in the allotment letters
issued to the petitioners. However, there is no doubt whatsoever, as also the
record is replete with materials, that such impression of the petitioners as borne
out by the allotment letters, that they are receiving unencumbered plots was
not correct and/or in fact there was a dent to this impression that the plots
allotted to the petitioners were in fact being subjected to reservation by the
NMMC. This position was further clear and compounded by the NMMC
taking a stand asserting reservation in respect of plots in question and on the
other hand, CIDCO insisting that the plots cannot be subject matter of
reservation by the NMMC, and in such situation, the State Government was
required to intervene, by issuing directives under section 154 of the MRTP
Act, clarifying the position that NMMC cannot reserve the plots which stood
vested with CIDCO. Further, such directives including the insistence of the
NMMC to implement the decision of the General Body of the NMMC to
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reserve these plots, as also the directives of the State Government were subject
matter of challenge before this Court in the proceedings of the PILs files by
Nishant Karsen Bhagat and by Sunil J. Garg (supra), was a situation writ large
for the petitioners to pursue the present proceedings.
24. Such PIL petitions were adjudicated by the Division Bench of this
Court in the case of Nishant Karsan Bhagat & Ors.vs. City and Industrial
Development Corporation of Maharashtra Ltd. & Ors. (supra). By its
judgment and order dated 30 August, 2022, the Division Bench held that
NMMC had no authority to make any reservation or to reserve the subject
plots which were allotted to the petitioners. The directives of the State
Government issued under section 154 were upheld by the Division Bench and
PILs were dismissed. The SLP against the said PILs was also dismissed by the
order dated 10 February, 2023 passed by the Supreme Court. It is thus quite
clear that uncertainty on the issue of plots allotted to the petitioners being
reserved by the NMMC, stood wiped out by the Supreme Court dismissing the
SLP in question as noted above.
25. The CIDCO, therefore, would not be correct in its contention that the
allotment of plots in favour of the petitioners was without any dispute or
controversy in regard to the reservation proposed to be imposed by the
NMMC.
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26. It also cannot be overlooked that the petitioners were allotted such plots
purely for commercial purposes, that is, to be utilized for
residential/commercial development and unless such allotment was to be as
clear as the sunlight without any uncertainty on its development potential, the
petitioners could not have proceeded to complete the transaction formalities of
making further payments. Thus, considering as to what was promised by the
CIDCO in the notice inviting bids, the petitioners could not be said to be
incorrect in their contentions that they had reason to believe that for making
payment of instalments, every uncertainty not only from the CIDCO but also
from NMMC and State Government was required to be removed.
27. It also needs to be observed that public body like the CIDCO cannot
place the allottees of the plots like the petitioners in a situation of uncertainty
or a fait accompli, when the representation of the CIDCO to the bidders was to
the effect that these were clear plots available for development which later on
was realised to be not the correct position. This more particularly when the
petitioners were to make payment accepting a clear representation from the
CIDCO as made to them, namely, of the plots not being under reservation.
After payment of the total lease premium, which are large amounts, the
petitioners could not been confronted with a situation that the plots as allotted
to them by the CIDCO could not be developed as they are proposed to be
reserved by NMMC for public purposes, and further after making such large
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payments, the petitioners are made to litigate either for refund of the amounts
or for removal of such uncertainty of any proposed reservation to be removed.
It is in these circumstances, the petitioners approached this Court in the
present proceedings.
28. It also needs an emphasis that the petitioners were parties in both the
PILs as filed by the petitioner-Nishant Karsen Bhagat (PIL No. 22 of 2021)
and by the second PIL as filed by Sunil J. Garg (PIL No. 37 of 2022). The
petitioners defended these petitions along with CIDCO and State
Government. The observations as made by the Division Bench in Nishant
Bhagat's case relevant in the present context are required to be noted, which
reads thus:
"76. On a cumulative reading of the different notifications as
issued by the State Government under Section 154 of the MRTP Act
and as discussed above, it is manifest that although the NMMC was
constituted as a Municipal Corporation in exercise of the powers under
section 3 of the NMMC Act, 1949, there was never an intention on the
part of the State Government to divest CIDCO of any of its authority
as a New Town Development Authority or a Development Authority
within the meaning of Section 113(3A) read with Section 2(8) of the
MRTP Act. Thus, CIDCO was within its power to develop the
undeveloped lands even in the developed nodes, which stood vested in
it and allowed the said lands by exercising its statutory powers as
conferred under section 118 of the MRTP Act along with other
ancillary powers being exercised under the New Bombay Disposal of
Land Regulations, 1975 and Navi Mumbai Disposal of Lands
(Amendment) Regulations, 2008 for disposal of lands.
77. In these circumstances, it was not permissible for the NMMC to
take any position to prevent CIDCO from exercising its statutory
powers and duties as the New Town Development Authority to
dispose of such lands by purporting to impose an embargo by foisting
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reservations on the plots of land being developed by CIDCO and now
subjected to an allotment by public auction by virtue of the tender
process as undertaken in the month of January, 2021 which already
stands completed and the allottees, namely, the private respondents, are
in the process of finalizing such allotments.
78. To our mind, it is quite clear that the roles of both CIDCO and the
NMMC qua the Navi Mumbai area have been recognized by the State
Government and completely within the parameters of the MRTP Act.
Time and again by issuance of different notifications, the State
Government has clarified the position that no conflict ought to be
brought about in the functioning of both these bodies exercising
their powers and functions as conferred on them under the
MRTP Act. Significantly, the intention of the State Government not
only from its directives but also from the stand taken by the State
Government in the reply affidavit appears to be quite clear, namely, to
recognize the role of both these authorities which is quite
compartmentalized. The State Government has categorically
recognized that since the time CIDCO was constituted as the New
Town Development Authority and till the constitution of the NMMC
and for such period even after its constitution, CIDCO has discharged
its functions as the Planning Authority by reserving lands for different
public amenities and it is not the case as put up by the petitioners that
the Navi Mumbai area was developed by CIDCO without being alive
to the different public needs and purposes and in fact has allocated
lands for large number of public purpose. Thus, the charge of the
petitioners that the allotment in question in favour of the private
respondents by CIDCO is only a revenue earning exercise, is totally
untenable. Such revenue being earned by disposal of lands by CIDCO
is also being utilized for the purpose of development of Navi Mumbai,
which itself is a public purpose.
(emphasis supplied)
29. Considering the decision of the Division Bench and as confirmed by the
Supreme Court, there is no manner of doubt that the petitioners are correct in
their contention that the very plots alloted to the petitioners were not only
subject matter of proposed reservation by NMMC and if the PIL petitions were
to succeed, the allotment itself could never have materialized. In these
circumstances, if the entire payment of lease premium was to be made by the
petitioners, the same would have ended in a non-sequiter, as the allotment
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would have remained only a paper allotment, that too after the petitioners
parting with large amounts of lease premium. Such was never the intention of
CIDCO in inviting bids and calling upon the petitioners to participate. As
noted above, it was never the intention of the petitioners to bid for plots which
were under such clouds of uncertainty and/or impredicability. Moreover, it can
never be expected from a pubic body that it can vaguely deal with any public
largesse and in a manner not intended by the original terms and conditions of
allotment and/or in deviation from the original terms and conditions, on the
basis of which the allottees participated in the tenders. Significantly, in the
present case, possibility of the petitioners being led to a total inconsequential
and/or a non-fruitful allotment of plots, if the PIL petitions were to succeed,
would have culminated into a total inconsequential allotment of plots by
CIDCO to petitioners. Such action of CIDCO would have been clearly hit by
petitioners rights guaranteed by Article 14 of the Constitution, as the
petitioners were treated arbitrarily and/or not fairly in the matter of allotment
of the plots read with Section 19(1)(g), as the allotments were for commercial
purposes. This apart, this would have also led CIDCO to a litigation if it was
not to refund the amounts.
30. It can never be an intention of a public body that private parties are
dragged into unwarranted litigation when such public body deals with public
largesse. Thus, certainly a public body like the CIDCO was required to bear in
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mind adherence to the requirement of fairness, non-discrimination and
fulfillment of the basic and legitimate expectations of the allottees of plots in
question, namely, that the plots could be utilized for the purpose for which it is
allotted and only on such firm foundation accept consideration from the
allottees.
31. In our opinion, it would have been a fair approach for the CIDCO
having known the intention of NMMC to reserve the plots by adhering to the
principles of fairness and non-discrimination, instead of insisting the
petitioners to make payment of lease premium, CIDCO should have let the
doubts, dilemna and the questions marks on such allotments withered down.
The CIDCO thus ought to have waited for adjudication of PIL petitions and
till the issues reached their finality, the allotment of plots could not have been
disturbed by the CIDCO. Such an expectation from the public body like
CIDCO could have been a fair and legitimate approach in the facts and
circumstances of the present case, when NMMC was initially at logger heads
with CIDCO to reserve the plots of land as allotted to the petitioners, till the
State Government intervened by issuing directives under section 154 of MRTP
Act and finally when such clouds of uncertainty were removed by the decision
of the Division Bench in PIL petitions and confirmed by the Supreme Court.
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32. We are hence are not inclined to accept any of the contentions of Mr.
Hegde when in the present facts, he submits that despite the hanging sword of
uncertainty on the allotment of plots as made in favour of the petitioners, the
petitioners ought to have paid two instalments of lease premium and having
not paid the amounts, they are liable to pay delayed payment charges and/or
interest.
33. Mr. Hegde is also not correct in asserting the above proposition for the
reason that such an argument completely overlooks and militates against the
directives of this Court in the interim orders dated 7 May, 2021 and 11 May,
2021 by virtue of which this Court had suspended and/or directed the CIDCO
to extend the schedule of payment stipulated in clause G of the Allotment
Letters, without levying on the petitioner, any interest or charges or penalty of
any nature, monetary or otherwise, and/or forfeiture and/or termination of the
Allotment Letter. The interim orders passed by this Court certainly brought
about binding legal consequences, namely, that such interim order passed by
this Court suspended the schedule of payment stipulated in the allotment
letter, also directing the CIDCO not to claim any interest or impose any
penalty. Such interim orders passed by this Court were accepted by CIDCO, as
the interim orders were never assailed by the CIDCO, and such interim order
continued to operate till date.
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34. Also, Mr. Hegde's contention that the petitioners be directed to make
payment of interest and/or delayed payment charges is directly in the teeth of
the interim orders passed by this Court. By virtue of such orders, CIDCO can
neither demand any interest or delayed payment charges nor the CIDCO can
terminate the allotments as made in favour of the petitioners. If this is the
plain consequence of the interim orders dated 7 May, 2021and 11 May, 2021
as passed by this Court, we wonder as to how Mr. Hegde can argue a position
contrary to such orders, when the interim orders were wholly accepted by the
CIDCO. Even for such reason, the contentions as urged on behalf of CIDCO
that the petitioners ought to pay to CIDCO any delayed payment charges and/
or interest cannot be accepted.
35. Now coming to the decisions as relied on behalf of the parties, Mr.
Tulzapurkar has relied on the decision of the Supreme Court in Hira Tikkoo
vs. Union Territory, Chandigarh & Ors. (supra). We find that the reliance on
such decision to be well-founded. The Supreme Court in such decision has
emphasized on the rule of reasonableness and fairness to be adhered by the
statutory authority, in the context of parties, who for no fault on their part were
deprived of original plots alloted to them, and in fact it is recognized that they
would be entitled to refund of the amount. The relevant observations in that
regard can be noted:
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"25. Surely, the doctrine of estoppel cannot be applied against public
authorities when their mistaken advice or representation is found to be in
breach of a statute and therefore, against general public interest. The
question, however, is whether the parties or individuals, who had suffered
because of the mistake and negligence on the part of the statutory public
authorities, would have any remedy of redressal for the loss they have
suffered. The "rules of fairness" by which every public authority is bound,
require them to compensate loss occasioned to private parties or citizens who
were misled in acting on such mistaken or negligent advice of the public
authority. There are no allegations and material in these cases to come to a
conclusion that the action of the authorities was mala fide. It may be held to
be careless or negligent. In some of the English cases, the view taken is that
the public authorities cannot be absolved of their liability to provide
adequate monetary compensation to the parties who are adversely affected
by their erroneous decisions and actions. But in these cases, any directions to
the public authorities to pay monetary compensation or damages would also
indirectly harm general public interest. The public authorities are entrusted
with public fund raised from public money. The funds are in trust with them
for utilisation in public interest and strictly for the purposes of the statute
under which they are created with specific statutory duties imposed on
them. In such a situation when a party or citizen has relied, to his detriment,
on an erroneous representation made by public authorities and suffered loss
and where the doctrine of "estoppel" will not be invoked to his aid, directing
administrative redressal would be a more appropriate remedy than payment
of monetary compensation for the loss caused by non-delivery of the
possession of the plots and consequent delay caused in setting up industries
by the allottees.
(See Administrative Law by H.W.R. Wade and C.F. Forsyth, 8th Edn., at pp.
370-73. Also the book Judicial Review of Administrative Action by de
Smith, Woolf and Jowell, 5th Edn., at p. 565, para 13-028.)
30. After considering the rival submissions made on behalf of various
parties, we are of the view that the rule of reasonableness and fairness by
which every statutory authority is bound, demands that the consentees, who,
for no fault on their part, were deprived of the original plots of larger sizes,
should not be further made to suffer by demanding from them higher price
for the alternative plots of smaller sizes. It would be highly iniquitous to
demand from them higher price for smaller sizes of plots and add to their
losses caused by undue delay in setting up their industries. The
Administration is mainly to be blamed for the situation in which the
allottees of plots find themselves today. In preparing scheme and allotting
plots, it could not have ignored the notification reserving a part of land for
the forst and the restriction to the extent of 900 metres around the air force
base. The allottees of the plots have paid full or part-price and that amount
throughout remained with the Administration. In such circumstances, the
Administration must bear a portion of loss, if any, occasioned to it and
compensate to some extent the loss caused to the consentees who never
objected to allotment of alternative plots of smaller sizes. Direction 2 of the
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High Court, therefore, to the extent of charging price from the consentees as
prevailing on the date of draw of lots i.e., 27-3-1991, deserves to be set aside
and substituted with the directions that the consentees on being allotted a
particular plot of smaller size shall be charged the same price which was
prevailing at the time of original allotment of the plot in their favour.
Necessary adjustment or refund of price, as the case may be, shall be given to
them for the small size of plot allotted."
(emphasis supplied)
36. Mr. Hegde would contend that interim order would merge in the final
order and if the PIL petitions were dismissed, the interim order as passed on
the present petitions would be inconsequential is a difficult proposition to be
accepted in the present facts. In supporting such proposition, Mr. Hegde relied
on the decision of Amarjeet Singh & Ors. (supra). We do not agree with Mr.
Hegde when he is canvassing such proposition relying on the decision of
Amarjeet Singh. This for the reason that it is clearly seen that the petitioners
have partly succeeded in their prayers, which pertained to their case of assertion
of rights against reservation of the plots in question, having been turned down
by a Division bench of this Court. Illustratively we have already noted prayer
clause (a) in Writ Petition No. 2473 of 2021. Thus, the petitioners are not in
the same position as that of the petitioners in the case of Amarjeet Singh &
Ors. (supra). In such case, Amarjeet had claimed benefits under the interim
order passed by the High Court, when the petitions itself stood dismissed
before the High Court. Thus, the observations of the Supreme Court that no
litigant can derive any benefit from mere pendency of a case in a court of law,
as the interim order always merges in the final order to be passed in the case,
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and if the writ petition is ultimately dismissed, the interim order stands
nullified automatically and such party cannot be allowed to take any benefit of
its own wrongs, by getting an interim order and thereafter blame the court, is
inapplicable in the facts of the present case. The following observations of the
Supreme Court as relied by Mr. Hegde, in our opinion, are wholly inapplicable
in the facts and circumstances of the present case:
"16. In view of the fact that the respondents continued on a higher post
under the orders of this Court for years together and even after dismissal of
the petition filed by the State, and the exercise for making promotions was
not undertaken by the State Authorities, the appellants should not suffer for
no fault of theirs. It has fairly been conceded by learned counsel appearing
for the respondents that had the exercise of making promotions been
undertaken immediately after the order of this Court dated 19.8.1998, the
appellants could have been promoted much earlier and they could have been
senior to the respondents. Thus the question does arise as to whether
appellants should be asked to suffer for the interim order passed by this
Court in a case having no merits at all.
17. No litigant can derive any benefit from mere pendency of case in a
Court of Law, as the interim order always merges in the final order to be
passed in the case and if the writ petition is ultimately dismissed, the interim
order stands nullified automatically. A party cannot be allowed to take any
benefit of his own wrongs by getting interim order and thereafter blame the
Court. The fact that the writ is found, ultimately, devoid of any merit, shows
that a frivolous writ petition had been filed. The maxim "Actus Curiae
neminem gravabit", which means that the act of the Court shall prejudice
no-one, becomes applicable in such a case. In such a fact situation the Court
is under an obligation to undo the wrong done to a party by the act of the
Court. Thus, any undeserved or unfair advantage gained by a party invoking
the jurisdiction of the Court must be neutralised, as institution of litigation
cannot be permitted to confer any advantage on a suitor from delayed action
by the act of the Court. (Vide Shiv Shankar & Ors. Vs. Board of Directors,
Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl. (2)
SCC 726; M/s. GTC Industries Ltd. Vs. Union of India & Ors., AIR 1998
SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC
423). 16.
18. In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors., AIR 1992
SC 1888 this Court examined the similar issue while placing reliance upon
its earlier judgment in Grindlays Bank Limited Vs. Income Tax Officer,
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Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from
the act of the Court and in case an interim order has been passed and
petitioner takes advantage thereof and ultimately the petition is found to be
without any merit and is dismissed, the interest of justice requires that any
undeserved or unfair advantage gained by a party invoking the jurisdiction
of the Court must be neutralized.
(emphasis supplied)
37. Considering the above observations, it is not the case that the writ
petition of the petitioners on reservation of the plots by the NMMC had stood
dismissed and in such situation, the petitioners were asserting any advantage
from the interim order having suffered a dismissal of the writ petition as in
Amarjeet's case. In fact, it is quite contrary that the petitioners have succeeded
in their prayers for reservation as noted by us in the foregoing paragraphs.
Furthermore, Mr. Hegde is also not contending that the petitioners are taking
advantage on a dismissed writ petition.
38. We may also observe that these were appropriate and fit cases for the
Managing Director of CIDCO to exercise his authority under Regulation 8 of
the New Bombay Disposal of Land Regulations (supra) to issue appropriate
directives not to charge any delayed payment charges or interest from the
petitioners when the allotment of plots itself was subject matter of protracted
litigation.
39. In such context, we may usefully refer to the decision of the Supreme
Court in Unitech Limited & Ors. vs. Telangana State Industrial Infrastructure
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Corporation (TSIIC) & Ors.,3 in which the Supreme Court recognized the
applicability of provisions of Article 14 in contractual matters and more
particularly, in a case of allotment of land in favour of Unitech Ltd. by the
respondent-TSIIC. The allotment of land in such case was rendered
inconsequential in view of TSIIC losing in the pending litigation in which it
was held that TSIIC had no authority to make allotment of land in favour of
Unitech, as it was not the owner of the land. It was held that in making an
allotment of a nature to Unitech, which ultimately was rendered
inconsequential, it was legitimate for Unitech to invoke jurisdiction under
Article 226 of the Constitution, as certainly the rights of Unitech as guaranteed
under Article 14 of the Constitution stood violated. Moreover, the Supreme
Court exercising its jurisdiction under Article 142 of the Constitution granted
refund of entire amount of Rs.165 crores as paid by Unitech together with
interest. Thus, certainly by virtue of interim orders passed by this Court, the
situation as in Unitech's case, namely, of the petitioners paying full amount of
lease premium on unpredicability of the allotments and/or existence of such
shaky grounds stood avoided. More significantly the interim orders have
continued to operate till date as accepted by the CIDCO, and hence the benefit
of such orders has continued in favour of the petitioners till the time we are
pronouncing the present order.
3 2021 SCC Online SC 99
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40. In the light of the above discussion, we are of the clear opinion that the
petitions are required to be allowed. The Writ Petitions are accordingly
allowed in terms of following orders:
(i) CIDCO is directed to accept the amounts of lease premium
in two instalments as per the terms and conditions of allotment
letters issued to the petitioners, to be paid by the petitioners
within ten weeks from today without insisting on any delayed
payment charges or interest, on such installments.
(ii) In the event, the amounts of lease premium as directed in
clause (i) above are not deposited by the petitioners with the
CIDCO, the CIDCO is permitted to take appropriate action as
may be permissible.
(iii) It is declared that the petitioners shall be entitled to develop
the plots subject to the terms and conditions of the allotment
letter, and as may be permissible in law as per the development
permission, which may be issued in favour of the petitioners.
41. Rule is made absolute in the above terms. No costs.
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42. In view of disposal of Writ Petitions, Interim Applications do not
survive and the same are accordingly disposed of.
(R.N. LADDHA, J.) (G. S. KULKARNI, J.)
3 May, 2023
