Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4571 OF 2009
JYPD Scheme Welfare Trust .. Appellant
Versus
The Chief Officer, M.H.A.D. & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 16.12.2004 passed by the High Court of
Bombay in Writ Petition (lodging) No. 2881 of 2004 dismissing the
said Writ Petition preferred by the appellant herein (the original
writ petitioner), the original writ petitioner JVPD Scheme Welfare
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Trust (hereinafter referred to as the ‘Trust’) has preferred the
present appeal.
2. The facts leading to the present appeal and the case of the
appellant herein (the original writ petitioner) in nutshell are as
under:
2.1 That the appellant (herein original writ petitioner) claiming to
be a Public Charitable Trust registered under the Bombay Public
Trust Act applied for the plot in question bearing No. C.T.S No. 27
(part) and admeasuring 5415 square meters situated at Juhu Vile
Parle Development Area in Mumbai and reserved for playground.
It was the case on behalf of the appellant Trust that the objects of
the Trust include development of cultural, social and sports
activities and in order to carry on its welfare activities, the Trust
applied to the State Government for allotment of the plot in
question for a playground. In exercise of powers under Regulation
16 of the Maharashtra Housing and Area Development (Disposal of
Land) Regulations, 1982 (hereinafter referred to as the ‘1982
Regulations’), the HighPowered Cabinet SubCommittee of the
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State of Maharashtra allotted the plot in question to the appellant
Trust vide order dated 05.10.1999. It appears that in the month of
February, 2000 all the allotments of the plots made under
Regulation 16 of 1982 Regulations were stayed.
2.2 The appellant herein approached the High Court of Bombay
by way of Writ Petition No. 6777 of 2002. Vide order dated
28.11.2002, the High Court directed the respondents to decide on
the application of the appellant for allotment of plot within 10
weeks. In the meantime, before any decision was taken on the
application of the appellant for allotment of plot, as directed by the
High Court, vide order dated 20.03.2003, Maharashtra Housing
and Area Development Authority (hereinafter referred to as
MHADA) granted licence to one Anchor Foundation Trust
(Respondent No. 4 herein) for three years for beautification and
development of the plot in issue. However, thereafter, the High
Powered Cabinet Subcommittee on Allotments, vide order dated
12.06.2003 decided in Principle to allot the plot in issue to the
appellant Trust subject to certain conditions. That the said
decision was taken by the State Government pursuant to the order
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passed by the High Court dated 28.11.2002 in W.P No. 6777 of
2002. That, vide letter on behalf of the State Government, MHADA
was intimated about the said decision of the Cabinet Sub
committee to allot the plot in issue to the appellant Trust subject
to certain terms and conditions. That, vide letter dated
16.02.2004, Respondent No. 1Board (MHADA) informed the
appellant Trust that the plot in issue is allotted to the appellant
under special powers conferred upon the State Government under
Regulation No. 16 of the said 1982 regulations. It was also stated
that the allotment is subject to compliance of the terms and
conditions set out therein and submitting the documents as
mentioned in the letter dated 18.10.2003 of the State Government.
That vide letter/communication dated 17.03.2004 the appellant
Trust was required to submit the necessary documents as
demanded by letter dated 16.02.2004 within seven days. It was
further stated that otherwise it would recommend cancellation of
the allotment. It is the case on behalf of the appellant that
immediately thereafter and well within the given time, by letter
dated 22.03.2004 the Appellant Trust submitted all the required
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documents and obtained acknowledgment thereof from the office of
the respondent No. 1Board. However, formal offer of the
allotment was not issued to the appellant Trust. That vide
communication/order dated 24.08.2004 respondent No. 1Board
cancelled the allotment of the plot in issue on the premise that
even after lapse of six months the appellant Trust had failed to
submit the required documents to prove its eligibility and,
therefore, the appellant had committed breach of the terms and
conditions of allotment. It is the case of appellant that thereafter
the representatives of the appellant Trust visited the office of
respondent No. 1Board along with acknowledgment receipt dated
23.03.2004 and requested for recall of the said letter dated
24.08.2004 as the required documents were already submitted.
That respondent No. 1Board executed the licence in favour of
Respondent No. 4 Anchor Foundation Trust on 9/10.09.2004 for
a period of three years for beautification and development of the
plot in issue. According to the appellant original writ petitioner,
the appellant Trust continued to request Respondent No. 1Board
to recall/cancel the cancellation order dated 24.08.2004.
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However, as there was no response from Respondent No. 1Board,
the appellant herein (original writ petitioner) preferred present Writ
Petition No. 2881 of 2004 in the High Court of Bombay. That in
the said writ petition a counter affidavit was filed on behalf of
Respondent No. 1Board on 10.12.2004. According to the
appellant, in the counter affidavit, Respondent No. 1 Board
admitted that the reasons given in the letter dated 24.08.2004 for
cancelling the allotment, inter alia, on account of nonsubmission
of the documents was erroneous/inadvertent. However, in the
counter affidavit, original respondent No. 1Board justified the
cancellation on other grounds, other than mentioned in the letter
of cancellation dated 24.08.2004. It was stated that none of the
trustees of the appellant Trust were residents of Juhu Vile Parle
Development Area and the financial capacity of the Trust was not
clear and that, therefore, a decision was taken by the Board to
carry out the development of playground itself through Anchor
Foundation Trust to which the licence was given vide resolution
No. 5879 dated 20.02.2003. That, considering the grounds set out
in the counter affidavit on behalf of the Respondent No. 1Board,
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by the impugned judgment and order, the High Court has
dismissed the writ petition upholding the validity of the order
dated 24.08.2004 cancelling the allotment to the petitioner Trust.
2.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court dismissing the writ
petition, the Appellant Trust filed the present appeal by way of
Special Leave Petition on 28.03.2005. While issuing notice in the
SLP on 10.05.2005 this Court granted liberty to the Appellant
Trust to file an application to implead Anchor Foundation Trust as
a party and upon filing the same, the said application came to be
allowed and the Anchor Foundation, in whose favour the licence
was granted, was impleaded as Respondent No. 4 on 29.08.2005.
That vide order dated 10.05.2005 this Court also passed an order
that the arrangement, if any, entered into with Anchor Foundation
will be subject to the result of this petition.
3. It appears that thereafter certain developments have taken
place which are required to be referred to, which are as under:
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That on 10.09.2004, MHADA issued a letter whereby the plot
in issue was allotted/granted to Respondent No. 4 – Anchor
Foundation for use as a playground and to carry out the
development and beautification of the same for the period of three
years upon the terms and conditions more particularly stated
therein. That Respondent No. 4 herein Anchor Foundation
complied with all the terms and conditions of the said allotment
plot by depositing an amount of Rs. 5,41,503/ and also by
executing an undertaking. It appears that thereafter by letter
dated 05.01.2005 the MHADA granted to Respondent No. 4, the
plot in issue on lease for a period of 15 years on payment of the
premium and on the terms and conditions more particularly stated
therein. That, pursuant to the terms of the letter dated
10.01.2005, Respondent No. 4 deposited a premium of Rs.
1,38,61,046/ with MHADA on 10.01.2005. That one Upnagar
Shikshan Mandal challenged the allotment of the plot in issue to
Respondent No. 4, before the Bombay High Court by way of W.P.
No. 964 of 2005. That during the pendency of W.P. No. 964 of
2005, the MHADA vide its letter dated 16.03.2005 cancelled the
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allotment granted in favour of Respondent No. 4. That Respondent
No. 4 challenged the said cancellation of the plot in issue before
the Bombay High Court by way of W.P. No. 1489 of 2005. That, by
order dated 24.06.2005 in W.P No. 1489 of 2005, the High Court
directed MHADA to give hearing to Respondent No. 4 and pass a
reasoned order. That pursuant to the directions of the High Court,
MHADA granted an opportunity to Respondent No. 4 of being
heard. After hearing Respondent No. 4, MHADA set aside the
order of cancellation dated 16.03.2005, by its order dated
08.09.2005 and the said order was placed before the High Court.
It appears that, during the pendency of hearing of the writ
petitions, one Gulmohar Area Societies Welfare Group, a group
formed by the residents of JVPD Scheme sought to intervene by
way of Chamber Summons and challenged the allotment of the
plot in issue. By its order dated 21.12.2006, the High Court
permitted the Gulmohar Area Society Welfare Group to be
impleaded as a party/respondent to the said writ petitions. It
appears that thereafter Gulmohar Area Society Welfare Group, on
11.09.2007, filed an independent writ petition bearing writ petition
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No. 1978 of 2007. That during the arguments in the aforesaid writ
petitions, the High Court directed MHADA to give hearing to all the
three parties to the writ petitions and to arrive at an amicable
solution. It appears that, pursuant to the High Court’s order
dated 29.10.2007, MHADA held various meetings with all the three
parties to the writ petitions. That in the said meetings, an
amicable solution was arrived at between the parties to the writ
petitions. The settlement was recorded and signed by the
respective parties to the above referred writ petitions, MHADA and
their respective advocates in the form of consent terms. That the
settlement dated 11.02.2008 was taken on record by the High
Court and accordingly the aforesaid three writ petitions being W.P.
No. 1489 of 2005, W.P. No. 964 of 2005 and W.P. No. 1978 of 2007
came to be disposed of in terms of the consent terms. That
Respondent No. 4 agreed to act as per the settlement dated
11.02.2008 and the consent terms. That in view of the order
passed by the High Court on 11.02.2008 in the aforesaid writ
petitions, MHADA allotted the plot in issue to Respondent No. 4 on
lease for a period of 15 years, which will be renewable for a further
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period of 15 years and subject to the terms and conditions as
stated in the policy of the MHADA and in addition thereto the
terms and conditions as agreed between the parties in consent
terms. It appears that, thereafter, the lease has been further
extended for a period of further 15 years. That, in between, there
is a further development which has taken place that the policy of
the allotment of the land/plots under Regulation 16 of 1982
Regulations was the subject matter of Writ Petition No. 75 of 2004
before the High Court of Bombay. Pursuant to the order passed by
the High Court in the said writ petition, the MHADA came out with
fresh directives and guidelines which would govern exercise of
power under Regulation 16 and the High Court has accepted the
fresh directives and guidelines, which would govern exercise of
power under Regulations 16. Therefore, pursuant to the order
passed by the High Court in Writ Petition No. 75 of 2004, the
powers under Regulation 16 are required to be exercised subject to
following the fresh directives and guidelines approved by the High
Court.
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4. Shri Raju Ramachandran, learned Senior Advocate, has
appeared on behalf of the appellant (the original writ petitioner);
Shri Nishant R. Katneshwarkar, Ld. Advocate, appeared on behalf
of the State of Maharashtra and Shri Shyam Divan, learned Senior
Advocate, has appeared on behalf of Respondent No. 4 herein.
4.1 Shri Raju Ramachandran, learned Counsel appearing on
behalf of the appellant has vehemently submitted that the
impugned judgment and order passed by the High Court is
absolutely contrary to the law laid down by this Court in the case
of Mohinder Singh Gill Vs. Chief Election Commissioner 1978 (1)
SCC 405.
4.2 It is vehemently submitted by Shri Ramachandran, learned
counsel for the appellant (the original writ petitioner) that the
order dated 24.08.2004 passed by MHADA cancelling the
allotment of the plot in issue to the appellant Trust was solely on
the basis that there was a failure on the part of the appellant to
produce the relevant documents proving the eligibility of the
Society. It is submitted that, however, the MHADA explicitly
admitted before the High Court that the letter dated 24.08.2004
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was inadvertently issued and in fact the appellant did produce the
relevant documents proving its eligibility. It is submitted that, in
view of the matter, the High Court ought to have quashed and set
aside the order/letter dated 24.08.2004. It is submitted that
however, erroneously and though not permissible, the High Court
confirmed the order dated 24.08.2004 on altogether other grounds
stated by the MHADA in the counter affidavit filed before the High
Court, which were not the grounds stated in the order/letter dated
24.08.2004. It is submitted and, therefore, the High Court has
committed a grave error in dismissing the writ petition and
confirming the order/letter dated 24.08.2004 considering
altogether new grounds/new story put up by MHADA in the
counter affidavit to justify the cancellation of allotment.
4.3 It is further submitted by the learned Counsel appearing on
behalf of the appellant (original writ petitioner) that in the case of
Mohinder Singh Gill (Supra) it was not open to the authority which
passed the order of cancellation erroneously/inadvertently and
then to justify the order on the other grounds stated in the counter
affidavit which were not the basis/grounds to pass the original
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order. It is submitted that this Court in the aforesaid decision of
Mohinder Singh Gill (supra) observed that when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. It is submitted by the learned counsel appearing for the
appellant that, in the present case, the High Court has materially
erred in confirming the order/letter dated 24.08.2004 cancelling
the allotment of the plot in issue to the appellant considering
altogether a new story/grounds stated in the counter affidavit and
those were not the basis of the original order.
4.4 It is further submitted by Shri Ramachandran, learned
Counsel, appearing on behalf of the appellant (the original writ
petitioner) that even no opportunity was afforded to the appellant
to rebut the new story/grounds put forward for the first time in
the counter affidavit filed in reply to the appellant’s writ petition in
the High Court. It is submitted yet the High Court has confirmed
the impugned cancellation of allotment order/letter dated
24.08.2004.
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4.5 It is further submitted by learned Counsel appearing for
appellant that even the subsequent lease in favour of Respondent
No. 4 is absolutely illegal and by suppression of material facts
before the High Court. It is submitted that, before the High Court,
in writ petition Nos. 9164 of 2005, 1978 of 2007 and 1489 of
2005, neither MHADA nor Respondent No. 4 Anchor Foundation
disclosed that SLP filed by the appellant with respect to very plot is
pending before the Supreme Court. It is submitted that the
subsequent lease in favour of Respondent No. 4 was on the basis
of some settlement between the writ petitioners in the aforesaid
three writ petitions, which is absolutely illegal and obtained by
supressing the material fact. It is submitted that even the
appellant (herein the original writ petitioner) was also not a party
to aforesaid three writ petitions and the consent terms arrived at
between the parties to the aforesaid three writ petitions on the
basis of which the subsequent lease has been granted in favour of
Respondent No. 4. It is submitted that therefore subsequent lease
in in favour of Respondent No. 4 is not binding to the appellant
herein. It is submitted that, even otherwise as per the order
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passed by this Court dated 10.05.2005, the arrangement, if any,
entered into with Anchor Foundation shall be the subject to the
results of the present petition.
4.6 It is further submitted by Shri Ramachandran, learned
Counsel appearing on behalf of the appellant (original writ
petitioner) that, as such, the appellant had complied with all the
terms and conditions of the allotment and is fulfilling all the
eligibility criteria and, in fact, the allotment order was passed in
favour of the appellant and the same came to be cancelled on the
premise that the appellant did not submit the required documents
to prove its eligibility which, as such, were already submitted by
the appellant with the appropriate authority within the stipulated
time, it is prayed to allow to present appeal and quash and set
aside the impugned judgment and order passed by the High Court.
5. The appeal is vehemently opposed by Shri Shyam Divan,
learned Senior Advocate, appearing on behalf of Respondent No. 4;
Shri Nishant R. Katneshwrkar, learned advocate appearing on
behalf of the State of Maharashtra and learned counsel appearing
on behalf of the MHADA.
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5.1 Shri Shyam Divan, learned Counsel appearing on behalf of
the Respondent No. 4, has submitted that admittedly the appellant
claimed the allotment under Regulation 16 of 1982 Regulation. It
is submitted that thereafter Regulation 16 was challenged before
the High Court by way of writ petition No. 75 of 2004. It is
submitted that in the meantime and during the pendency of the
Writ Petition No. 75 of 2004, MHADA and the Government came
out with the fresh directives and guidelines which would govern
exercise of powers under Regulation 16. It is submitted that
therefore powers under Regulations 16 under which the appellant
claimed the allotment are required to be considered as per the
fresh directives and guidelines which would govern the exercise of
powers of Regulation 16. It is submitted that, therefore, the
appellant (original writ petitioner) cannot claim any right of
allotment under the original Regulation 16. It is submitted that,
therefore, there are changed circumstances in view of the
subsequent decision of the High Court in Writ Petition No. 75 of
2004.
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5.2 It is further submitted by Shri Shyam Divan, learned Counsel
appearing on behalf of the Respondent No. 4 that in fact thereafter
there is a lease in favour of Respondent No. 4 initially for a period
of 15 years and thereafter the same has been extended for a
further period of 15 years. It is submitted that under the lease in
favour of Respondent No. 4, Respondent No. 4 has deposited Rs.
Rs. 1,38,61,046/. It is submitted that not only that thereafter
Respondent No. 4 has fully made improvements in the land and
the plot in question and the same is being used by the school
children of the locality and even by the other people of the locality.
It is submitted that Respondent No. 4 has strictly complied with
the consent terms submitted before the High Court in the
aforesaid three writ petitions and has strictly complied with the
terms and conditions of the lease and nobody has raised any
grievance. It is submitted, in the present case, the lease in favour
of Respondent No. 4 is not under challenge. It is submitted that
the appellant (the original writ petitioner) was very much aware of
the earlier allotment in favour of Respondent No. 4 and the
subsequent lease in Respondent No. 4 from the very beginning,
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still the lease in favour of Respondent No. 4 has not been
challenged. Therefore, it is prayed to dismiss the present appeal.
6. Heard learned Counsel appearing on behalf of the respective
parties at length. At the very outset, it is required to be noted that
the appellant herein applied for allotment of plot in issue under
Regulation 16 of 1982 Regulation. It is required to be noted that
at the time when the appellant (the original writ petitioner) applied
and in fact was allotted the plot in issue in the month of February,
2004 there were different guidelines and the directives in force.
However, Regulation 16 itself was under challenge before the High
Court in Writ Petition No. 75 of 2004 on the ground that
Regulation 16 confers uncontrolled, arbitrary as well as sweeping
powers on the Government to allot the plots which are part of
housing schemes implemented by MHADA, to outsiders and third
parties. That, in between, the State as well as MHADA came out
with the fresh directives and guidelines which would govern
exercise of powers under Regulation 16. Therefore, the High Court
by judgment and order dated 15.09.2004 did not set aside
Regulation 16, however, the High Court approved the guidelines.
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Therefore, thereafter the powers under Regulation 16 are to be
exercised as per the fresh directives and guidelines which came to
be approved by the High Court. Therefore, the guidelines under
which the powers were exercised under Regulation 16, at the time
when the appellant applied and claimed the right of allotment is
not in existence. A fresh directives and guidelines would govern
the exercise of powers under Regulation 16, which came to be
approved by the High Court, are to be applied.
7. It is true that when the order of cancellation dated
24.08.2004 was passed, the same was solely on the ground that
the appellant Trust did not submit the relevant documents to
prove its eligibility and on no other ground. The High Court
considered the grounds stated in the counter affidavit and did not
interfere with the order of cancellation dated 24.08.2004. The
appellant would be justified in making the grievance that the High
Court was not justified in considering the grounds stated in the
counter affidavit which were not the basis for passing the original
order of cancellation. However, at the same time, subsequent
development and grant of the lease in favour of Respondent No. 4
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initially for a period of 15 years and thereafter for a further period
of 15 years and the lease in favour of Respondent No. 4 is not
challenged, we do not propose to interfere with the impugned
judgment and order passed by the High Court. It is required to be
noted that there is a lease in favour of Respondent No. 4 since
20042005. That Respondent No. 4 had deposited/paid Rs.
1,38,61,046/. It is also required to be noted that the consent
terms recorded by the High Court in Writ Petition Nos. 9164 of
2005, 1978 of 2007 and 1489 of 2005, on the basis of which the
High Court disposed of the aforesaid three writ petitions in terms
of the consent terms and on the basis of which the lease of plot in
issue in favour of Respondent No.4, the lease in favour of
Respondent No. 4 has not been challenged. The lease granted to
Respondent No. 4 was pursuant to the order passed by the High
Court in the aforesaid three writ petitions. It is true that the
appellant Trust was not a party to the said writ petitions.
However, still, either the order passed by the High Court in the
aforesaid three writ petitions and even the lease granted in favour
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of Respondent No. 4 was/is required to be challenged before the
competent Court of Law.
8. The submission on behalf of the appellant that as per the order passed
by this Court dated 10.05.2005, the arrangement, if any, with Respondent No.
4 would be subject to the result of present writ petition and, therefore, the
appellant is not required to challenge the lease in favour of
Respondent No. 4, cannot be accepted. In the present appeal,
there is no specific challenge to the lease in favour of Respondent
No. 4. Under the circumstances of the case, we decline to interfere
with the impugned judgment and order passed by the High Court
and we decline to grant any relief to the appellant. At the same
time, we observe that we have not expressed anything on the
merits, on the legality and validity of the lease in favour of
Respondent No. 4.
9. In view of the above and for the reasons stated above, the
present appeal deserves to be dismissed and accordingly, the same
is dismissed with the above observations. However, in the facts
and circumstances of the case, there shall be no order as to costs.
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……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
April 9, 2019