Bombay High Court
Vishwas Gopal Harne And Anr vs Air India Limited And 2 Ors on 16 April, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-OS:6452-DB
RAMESHWAR
LAXMAN
DILWALE
902-WP-2763-2017 & WP-3065-2021.doc Rameshwar Dilwale
Digitally signed IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by
RAMESHWAR ORDINARY ORIGINAL CIVIL JURISDICTION
LAXMAN
DILWALE
Date: 2025.04.16 WRIT PETITION NO.2763 OF 2017
20:57:25 +0530
1. Shyamrao Umaji Chandanshive }
Residing at 105B, 1st Floor, Uddan }
CHS Ltd., Mhasoba Maidan, }
Near Sampada Hospital, Kalyan (W), }
Thane-421 301. }
2. Uma Mahesh Naik }
Widow of deceased Mahesh Manohar }
Naik, residing at 29/10, Old Air }
India Colony, Kalina, Santacruz }
(East), Mumbai-400 029. }
3. Ramdaulat Jagdatt Pandey }
Residing at B-402, Lotus Agarwal }
Township, Kaul Heritage City, }
Babhola Naka, Bassein Road, }
Vasai (W), Umale Palghar -401 202. }
4. Vijay Pratap }
Residing at 2502, Polaris, Vasant Galaxy, }
Bangur Nagar, Goregaon, }
Mumbai-400 104. }
5. George Abraham }
Residing at A4, Diamond Estate, }
Vidhyanagari Marg, Kalina, }
Mumbai-400 098 }
6. Yarasi Eswara Reddy }
Residing at 33/5, Old Air India }
Colony, Kalina, Santacruz (East), }
Mumbai-400 029. }
7. Narendra M. Jadhav }
Residing at 7/12, Old Air India }
Colony, Kalina, Santacruz (East), }
Mumbai-400 029 }
8. Sunil Pandurang Gaikwad }
1/13
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Residing at C/o-Vishal S. Gaikwad }
"Premsagar" CHS Ltd., F 39/012, }
Sector-29, Vashi, Navi Mumbai. }
9. R. Murugan }
Residing at Shivparvati, B/201, }
Sector-II, Plot No.5A, Kamothe, }
Navi Mumbai-410 218. }
10. Dayachand Dhara Chandalia }
Residing at Walmiki Nagar, }
Bamanwada, Opp. CPWD Office, }
Vile Parle (East), Mumbai-400 099. }
.. Petitioners
Versus
1. Air India Limited }
Air India Building, 21st Floor, }
Nariman Point, Mumbai-400 021. }
2. The Chairman & Managing Director, }
Air India Limited, Air India Building, }
Nariman Point, Mumbai-400 021. }
3. City Industrial Development }
Corporation of Maharashtra Limited, }
CIDCO Bhavan, CBD-Belapur, }
Navi Mumbai-400 614. }
4. Air India Asset Holding Co. Ltd. }
Airlines House, 113, Gurudwara }
Rakabganj Road, New Delhi-110 001. }
.. Respondents
ALONG WITH
WRIT PETITION NO.3065 OF 2021
1. Vishwas Gopal Harne }
Residing at 1004/3, 10th Flr., Police }
Officer Colony, Opp. Santacruz, }
Police Station, Near Juhu Garden, }
Santacruz (West), Mumbai-400054 }
2/13
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902-WP-2763-2017 & WP-3065-2021.doc Rameshwar Dilwale
2. Shankar Yamaji Bhoi }
Residing at 102/1, Sohan Kirti CHS }
Ltd., Kharegaon Naka, Kalwa, }
Thane-400 605. }
.. Petitioners
VERSUS
1. Air India Limited }
Air India Building, 21st Floor, }
Nariman Point, Mumbai-400 021. }
2. The Chairman & Managing Director, }
Air India Limited, Air India Building, }
Nariman Point, Mumbai-400 021. }
3. City Industrial Development }
Corporation of Maharashtra Limited, }
CIDCO Bhavan, CBD-Belapur, }
Navi Mumbai-400 614. }
.. Respondents
Mr. Ashok D. Shetty with Ms. Rita K. Joshi, Advocates for the
Petitioners.
Ms. Ayesha Pinto, Advocate, i/by Saamya Partners, for
Respondent No.1.
Mr. G.S. Hegde, Senior Advocate, i/by Ms. P.M. Bhansali,
Advocate for Respondent No.3.
Mr. Kevic Setalwad, Senior Advocate with Mr. Rakesh Singh, Ms.
Reshaya Malhotra, Ms. Heena Shaikh, Advocates, i/by M.V. Kini &
Co., for Respondent No.4.
CORAM : A.S. CHANDURKAR &
M. M. SATHAYE, JJ
Date on which the arguments concluded : 28 th JANUARY 2025
Date on which the judgment is pronounced : 16 th APRIL 2025.
JUDGEMENT :
( PER : A. S. CHANDURKAR, J)
1. The petitioners in both these writ petitions were employed
with the first respondent-Air India Limited. Pursuant to a proposal
902-WP-2763-2017 & WP-3065-2021.doc Rameshwar Dilwale
to setup an Airport in Navi Mumbai, Air India sought allotment of
land from the third respondent-City and Industrial Development
Corporation (for short, 'CIDCO') with a view to construct service
flats for its employees. An agreement to lease was entered into
between CIDCO and Air India on 13/01/1992. Subsequently, Air
India constructed 508 flats in 25 residential towers on the
aforesaid land. Air India thereafter proposed to sell those
residential flats on outright basis to its employees. On disputes
arising, Writ Petition No.336 of 2010 (Abhimanyu Hunkar Bhosale
(Retd.) and others Vs. State of Maharashtra and others) came to
be filed by employees of Air India seeking issuance of directions in
the matter of allotment of land by CIDCO and thereafter allotment
of the flats constructed by Air India. Pursuant to various orders
passed in the said writ petition including the orders dated
13/06/2010, 11/10/2010, and 08/12/2010, the time to make
necessary payment for allotment of the flats came to be extended
till 13/12/2010. It is the case of the petitioners that they were
issued allotment letters on 11/11/2010 and had accordingly paid
10% of the amount of consideration. On the ground that they were
not aware of the subsequent staff notices and Circulars issued by
Air India in the matter of making the balance payment of 90%,
they issued letters dated 16/01/2017 and 19/06/2017 to Air
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India making a request that the balance consideration to the
extent of 90% be accepted and the flats be allotted. Since there
was no positive response to these communications, Writ Petition
No.2763 of 2017 was filed by ten employees on 11/09/2017 with
a prayer that Air India and / or CIDCO be directed to accept the
balance payment towards cost of the respective flats and
thereafter issue the final allotment letters to the petitioners.
2. In the affidavit in reply filed on behalf of the Air India, it has
been stated that though the petitioners were issued allotment
letters on 11/11/2010, the same came to be cancelled for failure
to make the balance payment within the extended time in that
regard. Insofar as the Petitioner No.8 was concerned, his allotment
was cancelled on 14/01/2011 and with regard to the other
petitioners, the allotment was cancelled on 25/01/2011. It was
further stated that on account of delay on the part of the
petitioners in approaching this Court by filing the present writ
petition, no relief could be granted to them.
In the affidavit in reply filed by CIDCO it has been stated
that it had no role to play in the matter of allotment of the
residential flats and that Air India was the authority to make such
allotment. It is further stated that on 11/01/2016 CIDCO received
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a letter from Air India stating therein that as the petitioners had
paid only 10% of the cost of the flat and the balance amount was
not paid within the stipulated period, the allotment made to them
was cancelled.
3. Writ Petition No.3065 of 2021 has been filed by two similarly
situated employees of Air India on 09/07/2021. The said
petitioners have also made similar prayers as made by the
petitioners in Writ Petition No.2763 of 2017.
4. Mr. Ashok Shetty, learned counsel appearing for the
petitioners referred to the relevant facts from the year 2010 and
onwards as well as the various orders passed in Writ Petition
No.336 of 2010. According to him, the time to make the balance
payment having been extended from time to time coupled with the
fact that the relevant staff notices/Circulars issued by Air India
demanding the balance 90% amount were not brought to the
notice of the petitioners, they ought to be permitted to pay the
balance of consideration with interest, if thought fit, to enable
issuance of the final allotment letters to the petitioners. Having
paid 10% of the amount as indicated in the final allotment letters,
the petitioners were under a legitimate expectation that they
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would be issued the final allotment letters by accepting the
balance consideration. He referred to the decisions in M/S.
Harshal Developers Pvt. Ltd. and Mr. Rajesh Haribhau Sachade Vs.
Mr. Manohar Gopal Bavdekar and Mrs. Shaila Pradumna Rajwade,
2013 (1) MhLJ 855 to submit that the petitioners had a legitimate
expectation in the matter of allotment of the flats in question. On
the aspect of delay in approaching the Court, it was submitted
that the petitioners were under a bonafide belief that the balance
consideration would be accepted by Air India which was however
not done. He also pointed out that during pendency of the writ
petition, the holding of Air India Limited came to be transferred to
the fourth respondent-Air India Asset Holding Company Ltd. Being
a State within the meaning of Article 12 of the Constitution of
India, it was expected that Air India as well as the Air India Asset
Holding Company Ltd. would act fairly in the matter. Reference
was also made to the provisions of the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 to support the prayers in the
writ petitions. It was thus prayed that the reliefs sought by the
petitioners be granted to them.
5. Ms. Ayesha Pinto, learned counsel appearing for Air India
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submitted that in the year 2019 the holding of Air India stood
transferred in favour of Air India Asset Holding Co. Ltd. and hence
no relief could be granted to the petitioners. Though the
petitioners had paid 10% of the total amount of consideration to
Air India, the said amount was thereafter transferred to Air India
Asset Holding Company Ltd. which fact was undisputed. Since the
petitioners were no longer employees of Air India, they could seek
relief, if any, only from the Air India Asset Holding Company Ltd.
Mr. G. S. Hegde, learned Senior Advocate for the CIDCO
submitted that CIDCO had merely allotted land to Air India to
enable service accommodation to be constructed by it for its
employees. The dispute in the present proceedings was between
the petitioners on one hand and Air India and Air India Asset
Holding Company Ltd. on the other. Hence no directions could be
issued to CIDCO at the instance of the petitioners.
6. Mr.Kevic Setalwad, learned Senior Advocate appearing for
Air India Asset Holding Company Ltd. submitted that the
petitioners had approached this Court belatedly in the light of the
fact that the letters of allotment issued to them had been
cancelled in January 2011. There was no explanation for such
delay nor was there any cause of action against Air India Asset
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Holding Company Ltd. as the allotment letters had been cancelled
prior to the transfer of the holding of Air India in its favour. It was
further submitted that the petitioners were seeking enforcement of
contractual obligations and the relief sought by them was in the
nature of specific performance. As the petitioners were not
employees of Air India Asset Holding Company Ltd., no relief could
be granted to the petitioners. To substantiate his contentions, the
learned Senior Advocate referred to the decisions in Kerala State
Electricity Board and another Vs. Kurien E. Kalathil and others,
(2000) 6 SCC 293, Air Corporation Employees rep. By its President
C. Udayashankar Vs. Union of India rep. By the Secretary Ministry
of Civil Aviation and others, (2022) 2 LLJ 180 and R. S. Madireddy
and another Vs. Union of India and others, (2024) SCC OnLine SC
965. It was thus submitted that both the writ petitions were liable
to be dismissed.
7. We have heard the learned counsel for the parties at length
and with their assistance we have perused the documents on
record. Having given due consideration to the respective
submissions, in our view, no relief can be granted to the
petitioners, except a direction for refund, principally for two
reasons:-
902-WP-2763-2017 & WP-3065-2021.doc Rameshwar Dilwale
a) The nature of dispute raised by the petitioners seeks
enforcement of contractual obligations between them and Air
India in the matter of purchase of service flats offered by Air
India. Undisputedly, the petitioners were issued letters of
allotment on 11/11/2010 and they were required to make
payment of the sale consideration within the time stipulated
therein. The petitioners paid 10% of the sale consideration.
By virtue of orders passed in Writ Petition No.336 of 2010,
the extended date for making such payment finally was
30/12/2010. As the petitioners failed to make payment of
the balance amount of consideration, the allotment of
Petitioner No.8 was cancelled on 14/01/2011 and the
allotment of the other petitioners was cancelled on
25/01/2011 Thus, as long as the cancellation of the
allotment is not set aside, no further relief can be granted to
the petitioners. We do not find that there is much scope for
this Court in exercise of jurisdiction under Article 226 of the
Constitution of India to venture into these factual aspects
and examine whether the cancellation of allotment is liable
to be interfered with. The petitioners have not specifically
challenged the action of cancelling the allotment of the
respective flats to them but have merely prayed for directions
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against Air India and/or CIDCO and/or Air India Asset
Holding Company Ltd. to accept the balance consideration
and allot them the respective flats. Thus, unless the
cancellation of the allotment by Air India in January 2011 is
set aside, no further relief can be granted to the petitioners.
It is not the case of the petitioners that they alone have been
singled out by Air India while cancelling their allotment. On
the contrary, the petitioners have pleaded in Grounds I and J
of the writ petition that they had not seen the relevant
Circulars issued by Air India due to which they could not
make the balance payment within the stipulated time. Thus
on the own showing of the petitioners, they failed to notice
the relevant staff notices / Circulars on the basis of which
the balance amount of consideration was to be paid. Hence
on the ground that there is no illegality on the part of Air
India in cancelling the allotments made on account of failure
to pay the balance consideration, no relief can be granted to
the petitioners.
b) The petitioners have approached this Court belatedly
on 11/09/2017 and 09/07/2021 in the respective writ
petitions without indicating the reasons for taking such
steps after lapse of considerable time. There is a dispute
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sought to be raised in the matter of issuance of the letters of
cancellation of allotment to the petitioners in January 2011
and the receipt of those letters by the petitioners. In exercise
of writ jurisdiction, this fact finding enquiry as to whether
the cancellation letters were actual received by the
petitioners or not cannot be gone into. It is a case of oath
against oath at the behest of the petitioners and Air India.
Suffice it to observe that the writ petitions suffer from
unexplained delay and laches. Moreover, the
communications issued by the petitioners to Air India are
only on 16/01/2017 and 19/06/2017. Thus on the ground
that the delay has not been satisfactorily explained coupled
with laches, we do not find that any discretionary relief can
be granted to the petitioners in the matter of allotment of the
flats.
8. Having found that the petitioners are not entitled to any
relief with regard to issuance of a direction to Air India Asset
Holding Company Ltd. to now allot them the residential flats, the
fact remains that admittedly the petitioners had paid 10%
consideration pursuant to the allotment letters issued to them by
Air India. This amount now stands transferred in favour of Air
India Asset Holding Company Ltd. on 31/03/2022 as stated in the
902-WP-2763-2017 & WP-3065-2021.doc Rameshwar Dilwale
additional affidavit filed on behalf of Air India dated 01/04/2024.
Thus, the only relief which can be granted to the petitioners is of
refund of the 10% amount paid by them to Air India pursuant to
the allotment letters issued to them. It is also to be noted that in
the respective letters of cancellation of allotment, Air India had
specifically stated that the 10% amount as paid would be
refunded to the petitioners in due course. In that view of the
matter, the said limited relief can be granted to the petitioners.
9. In the light of aforesaid discussion, the following order is
passed:-
i) The prayer made by the petitioners for issuance of
directions to Air India Asset Holding Company Ltd. to allot
them flats as per the allotment letters issued to them by Air
India is refused.
ii) Air India Asset Holding Company Ltd. shall within a
period of four weeks from today refund the 10% amount to
each petitioner with interest at the prevailing bank rate.
iii) Rule is disposed of in aforesaid terms leaving the
parties to bear their own costs.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
