Full Judgment Text
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5428 OF 2013
(Arising out of SLP(C) No. 3009/2012)
Mahanagar Telephone Nigam Limited …Appellant
versus
State of Maharashtra and others ...Respondents
J U D G M E N T
G. S. SINGHVI, J.
1. Leave granted.
2. Feeling dissatisfied with order dated 30.7.2010 read with order dated
13.8.2010 passed by the Division Bench of the Bombay High Court in Writ
JUDGMENT
Petition No.1517/2010 for issue of a mandamus to respondent Nos. 2 to 4 to hand
over vacant possession of final Plot bearing No.1088, Town Planning Scheme-IV
(City) (Mahim) situated at Kashinath Dhuruwadi, Standard Mill Lane, Rajabhau
Desai Marg, New Prabhadevi, Mumbai and for restraining respondent No.5 from
carrying out further development on that plot or creating third party rights, the
appellant has sought intervention of this Court.
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3. By Notification dated 24.9.1973 issued under Section 4(1) of the Land
Acquisition Act, 1894 (for short, ‘the Act’) the Government of Maharashtra
proposed the acquisition of four plots, Town Planning Scheme as described
hereinabove for Posts and Telegraph Offices. After considering the report
submitted by the Collector under Section 5A(2), the State Government issued
declaration dated 7.11.1975 under Section 6(1) of the Act. The Special Land
Acquisition Officer (respondent No.2) passed award dated 31.3.1982 and fixed
market value of Plot Nos. 1087 and 1088 as Rs.14,14,282/- and Rs.13,29,897/-,
respectively. Assistant Engineer (Phone) (L.A., Mumbai Telephones) deposited
the amount of compensation on 9.8.1982.
4. Since some portions of the acquired land were occupied by slum dwellers,
respondent No.2 sent letters dated 10.2.1983 and 22.3.1983 to the officers of the
Bombay Telephones to rehabilitate the hutment dwellers or pay rehabilitation
compensation and deposit the establishment and service charges. Between
JUDGMENT
9.6.1983 and 3.8.1992 the officers of Bombay Telephones and Posts and
Telegraph Department exchanged correspondence inter se and sent
communications to Bombay Housing and Area Development Board, Department
of Housing and Special Assistance, Government of Maharashtra and other
functionaries of the State Government for delivery of possession of the two plots
but did not get desired response apparently because more and more persons had
encroached and occupied the acquired land. After about 6 years, Deputy General
Manager (Planning), Mahanagar Telephone Nigam Ltd., sent letter dated
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23.6.1998 to respondent No.2 to either hand over vacant possession of the two
plots or refund the amount of compensation with interest. That letter reads as
under:
“ MAHANAGAR TELEPHONE NIGAM LIMITED MUMBAI
O/o Dy. General Manager (Planning)
rd
3 Flr, Telephone House,
V.S. Marg, Dadar (West),
Mumbai-400 028,
No. PELA-1-166/98-99 Date:
23/6/98
To,
Special Land Acquisition Officer,
st
Old Custom House, 1 floor,
Fort, Mumbai
Sub: Acquisition of Plot No. 1087 and 1088 in TPS-IV of Mahim,
Prabhadevi.
Sir,
Award for the above plot No. 1087 and 1088 declared
on 1.6.1979 and 31.3.1982 respectively. Accordingly, this
department paid compensation amount of Rs. 14,14,282/-
on 26.7.79 and Rs. 13,29,897/- on 30.3.82 totaling to Rs.
27.65 lakhs including establishment charges. Inspite of
voluminous correspondences and frequent visuals and
meetings with you to get the vacant possession of the plots,
the plot is not yet made over to MTNL. At present plot is
fully encroached and you are not in a position to give
vacant possession of the said plots.
JUDGMENT
It is once again requested to hand over the vacant
possession within three months, failing which you are
requested to refund the compensation paid by us with
interest.
Page 3
4
Sd/-
Dy. General Manager ( Plg.)
MTNL, Mumbai ”
(underlining is ours)
5. For the next about 8 years the officers of Bombay Telephones, Posts and
Telegraph Department and the appellant are not shown to have sent any
communication to the functionaries of the State Government including respondent
No.2 in the matter of delivery of possession of the acquired land. They woke up
from slumber in 2006. Between 1.1.2006 and 4.8.2006, about 20 communications
were sent to respondent No.2 and others to deliver possession of Plot No.1088. In
those communications, no mention was made about Plot No. 1087 because
compensation deposited in respect of that plot had been withdrawn.
6. In the meanwhile, Municipal Corporation of Greater Mumbai sanctioned
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redevelopment of Plot No. 1088 for rehabilitation of slum dwellers numbering
495, who formed Prabhadevi Cooperative Housing Society (Proposed). The
Society signed Development Agreement dated 16.11.2003 with M/s. Shree Ahuja
Properties (respondent No.5) for development of Plot Nos. 1087 and 1088. More
than 70% of the eligible slum dwellers (352) gave consent affidavits for
redevelopment under the Slum Rehabilitation Scheme, which was approved by
Additional Municipal Commissioner and competent authority vide order dated
17.9.2004 passed under Section 4(1) of the Maharashtra Slum Areas
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(Improvement, Clearance and Redevelopment) Act, 1971 (for short, ‘the 1971
Act’). After two months, Executive Engineer-III, SRA issued order dated
6.11.2004 for execution of the scheme by respondent No.5. On 8.4.2005, SRA
granted Commencement Certificate to respondent No.5. After about three years,
SRA passed order dated 8.8.2008 and directed respondent No.5 to allot built up
area measuring 1706 square meters to the appellant free of cost.
7. Respondent No.5 completed rehabilitation building Nos. 1 and 2 on Plot
No.1088 sometime in 2009. The Executive Engineer, SRA issued Occupation
Certificates dated 1.12.2009 and 4.12.2009 and approximately 600 units were
handed over to the slum dwellers for permanent residence. The status of the
buildings is revealed from 21 photographs produced by respondent No.5, which
have been marked as Annexure R-1.
8. After 37 years of initiation of the acquisition proceedings and 28 years of
the pronouncement of award by respondent No.2, the appellant filed writ petition
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with the prayers about which reference has been made hereinabove. The Division
Bench of the High Court disposed of the writ petition vide order dated 30.7.2010.
Due to some mistake, that order was recalled on 13.8.2010 and was substituted
with the impugned order, the relevant portions of which are extracted below:
“In this petition under Article 226 of the Constitution of India,
the Mahanagar Telephone Nigam Limited has prayed for a writ
of mandamus to direct respondent Nos.2 to 4 to hand over
vacant possession of the land admeasuring 5723.10 sq. metres
situated at Mahim bearing FP No.1088 TPS-IV.
Page 5
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2. Learned counsel for respondent No.5, in whose favour the
slum development authority has sanctioned the slum
rehabilitation scheme in question, states that as per the order
dated 8th August, 2008 of the Slum Rehabilitation Authority,
the built up area admeasuring 1706 sq, metres is allotted under
Item No.10 to MTNL. The said built up area will be handed
over to the Appropriate Authority free of costs. It is stated that
since the Post and Telegraph Department of the Union of India
is not a party to this proceeding, respondent No.1 may not be
held liable if the Mahanagar Telephone Nigam Limited is given
the above built up area free of costs.
3. Since the Slum Development Authority itself has indicated in
the scheme itself, that the built up area admeasuring 1706 sq.
metres is to be handed over to MTNL, no prejudice would be
caused if respondent No.5 is directed to hand over the built up
area of 1706 sq. metres to MTNL free of costs. We accordingly
direct the respondent No.5 to hand over the above built up area
to MTNL. A copy of this order be served upon the Post Master
General at Mumbai. In case, the Post Master General of
Mumbai has any claim over the built up area in question, it will
be open to the said authority to take up the matter with MTNL
and with Union of India in the concerned ministry. Since the
MTNL has been allotted only built up area admeasuring 1706
sq. metres, we are not called upon to examine the claim of
5723.10 sq. metres made by the petitioner-MTNL in this
petition. Any further claim of the petitioner-MTNL with regard
to additional built up area, the petitioner-MTNL will be entitled
to get the same adjudicated by the appropriate authority. The
writ petition stands disposed of.”
JUDGMENT
9. Soon after disposal of the writ petition Ms. S.I. Shah, who had appeared on
behalf of the appellant before the High Court, on instructions from her client,
sent letter dated 12.10.2010 to Wadia Ghandy and Co., advocate for respondent
No.5, to execute separate MOU for 1706 sq. mtrs. built up area. That letter reads
as under:
“ S. I. SHAH & CO.
ADVOCATES & NOTARY
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Office : Resi.:
S. I. SHAH Navjivan Co-operative
Advocate & Notary Housing Society Limited
“Veet-Rag Chambers” Bldg. No.9 Flat No. 51,
(Old Cama House) Lamington Road,
38, Cawasji Patel Street, Mumbai -400 008
Fort, Mumbai -400 001 Tel.:23010306, 23010700
Tel.:22022928, 22852759
To 12.10.2010
Wadia Ghandy & Co.,
Advocates & Solicitors,
N. M. Wadia Buildings,
123 Mahatma Gandhi Road,
Mumbai -400 001.
Sub:- High Court Mumbai, O.O.C.J
Writ Petition No. 1517 of 2010
Mahanagar Telephone Nigam Ltd. ...Petitioner
V/s.
State of Maharashtra & Ors. . ..Respondents
Dear Sir,
We are concerned for MTNL in the above matter. You have
represented Respondents No. 5, i.e. M/s. Shree Ahuja Properties in the
above matter. The above Petition is disposed of vide an order dt. 30th
July, 2010 and subsequent order dt. 13th August, 2010 by their
Lordships Mr. Chief Justice and Mr. Justice S. C. Dharmadhikari.
Your clients are aware that as per an order dt. 8 August, 2008 of slum
Rehabilitation Authority, MTNL is entitled to 1706 sq. mtr. Built up
area free of cost.
JUDGMENT
We are instructed by our clients to inform your clients that the
separate building of the said 1706 sq. mtr. Built up area be constructed
by your clients with separate gate / Entrance as per the specification to
be given by our clients. It is therefore necessary to execute separate
MOU for the said purpose. Your clients be informed accordingly and
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let our clients know the specific time limit during which the said
construction work will be completed and handed over to our client.
Kindly do the needful for execution of MOU in the matter and
handover the Draft Agreement to be executed between MTNL and
your client.
Thanking you,
Yours faithfully,
Sd/-
S. I. Shah & Co.
C.C.
To.
MTNL”
(underlining is ours)
10. Between 29.12.2010 and 31.10.2011 the officers of the appellant and
respondent No.5 exchanged several communications on the issue of construction
of separate building on 1706 sq. mtrs. area, which was to be handed over to the
appellant free of cost in terms of the order passed by SRA and the direction
given by the High Court. Those communications are also reproduced below:
“MAHANAGAR TELEPHONE NIGAM LIMITED,MUMBAI
JUDGMENT
From: 0/0. D.G.M. Plg.)
3rd Flr., Telephone House,
Veer Savarkar Marg,
Prabhadevi, Dadar (W),
Mumbai - 400028
No.PELA-1-691/F.P. 1088/2010-11 Date: 29/12/2010
To,
M/S. Shree Ahuja Properties,
A-1, Rajpipla,
Opp. Standard Chartered Bank,
Linking Road,
Page 8
9
Santacruz (W), Mumbai-400054
Sub: High Court Mumbai O.O.C.J., W.P. No.1517/2010
Mahanagar Telephone Nigam Ltd. .. Petitioner
V/S
State of Maharashtra & Ors. .. Respondents
Dear Sir,
With reference to the above subject, as per an order no.
SRA/Eng/940/GS/ML&STG/LOI dtd. 8th August 2008 of
SRA, MTNL is entitled to 1706 sq. mtrs. built up area free of
cost. Nothing is heard from you after the Honourable High
Courts judgement dtd. 13th August 2010.
It is to inform you that a separate building is to be constructed
with separate gate/entrance as per the specifications to be given
by MTNL. It is therefore necessary to execute a separate MOU
for he said purpose.
You are hereby requested to intimate the time limit during
which the said construction work will be completed & handed
over to MTNL.
Thanking you,
Sd/-
Asst. General Manager (Plg.)
JUDGMENT
MTNL, Mumbai-28.
(24228977)
th
End: The order copy dtd. 13 August 2010”
___________________________________________________
“MAHANAGAR TELEPHONE NIGAM LIMITED,MUMBAI
From: O/O. D.G.M. (Plg)
rd
3 , Flr. Telephone House,
Veer Savarkar Marg,
Prabhadevi, Dadar (W),
Mumbai - 400028
No.PELA-l-691/F.P.1088/2010-11 Date: 02/02/2011
Page 9
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To,
M/S. Shree Ahuja Constructions,
3rd flr., V.N. SPHERE,
199, Linking Road
Opp. Shoppers Stop
Bandra (W), Mumbai-40005
Sub: High Court Mumbai O.O.C.J., W.P. No.1517/2010
Mahanagar Telephone Nigam Ltd. .. Petitioner
V/S
State of Maharashtra & Ors. .. Respondents
Dear Sir,
With reference to the above subject, as per an order no.
SRA/Eng/940/GS/ML&STG/LOI dtd. 8th August 2008 of
SRA, MTNL is entitled to 1706 sq. mtrs. built up area free of
cost. Nothing is heard from you after the Honourable High
Courts judgement dtd. 13th August 2010. It is to inform you
that a separate building is to be constructed with separate
gate/entrance as per the specifications to be given by MTNL. It
is therefore necessary to execute a separate MOU for he said
purpose.
JUDGMENT
You are hereby requested to intimate the time limit during
which the said construction work will be completed & handed
over to MTNL.
MTNL, Mumbai Deputy General Manager (Planning) desires to
have a meeting with you regarding the above issue. Please fix a
convenient day & time for the meeting at an earliest.
Thanking you,
Sd/-
Asst. General Manager (Plg.)
MTNL, Mumbai-28.
(24228977)”
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“Shree Ahuja Properties and Realtors Private Limited
Flat No.301/302/303/304, 3rd Floor, 190 Linking Road, V.N.
Sphere Bldg., Bandra (West), Mumbai - 400 050 Tel. 66285000
(10 Lines) Fax: 66285050
Date : 12 July, 2011
To,
The Divisional Manager, MTNL,
MTNL Building
Prabhadevi, Mumbai -400 025
Subject: Submission of MTNL Building Plan
Ref: CTS No. 1087 & 1088, Mahim Division, Rejabhau Desai
Marg, Prabhadevi, Mumbaio-400 025
Dear Sir,
We are submitting the MTNL Building Plan for your record and
future advice.
Please acknowledge the same. Thanking You,
Yours Faithfully,
For Shree Ahuja Properties & Realtors Pvt. Ltd.
Sd/-
JUDGMENT
Authorized Signatory
Enclose: MTNL Building Plan”
“Shree Ahuja Properties and Realtors Private Limited
Corporate Office: V.N. Sphere, Level Three, 199 Linking Road,
Opp. Shoppers Stop, Bandra (W), Mumbai - 400 050 Tel.: +91
22 66285000 Fax: +91 22 66285050
th
Date: 14 September, 2011
To,
The Divisional Manager, MTNL,
MTNL Building,
Prabhadevi, Mumbai -400 025
Page 11
12
Subject: Submission of MTNL Building Plan
Ref: CTS No. 1087 & 1088, Mahim Division, Rejabhau Desai
Marg, Prabhadevi, Mumbai-400 025
Dear Sir,
With reference to the captioned Subject and our letter dated
12th July, 2011, in compliance of condition no.23 of Letter of
Intent No. "SRA/Eng/940/GS/ML & STOL/LOI" dated
08/08/2008; please find enclosed the detailed Building Plan
showing your building on the same. As per your letter
no.PELA/1/691/F.P. No. 1088/2020-11, dated 02/02/2011
where you asked us for separate building compound and access
all these requirements are satisfied in our plan.
Please arrange to sent the details of specification and necessary
approvals to enable us to take approvals from Slum
Rehabilitation Authority at the earliest.
Thanking you,
Yours Faithfully,
For Shree Ahuja Properties & Realtors Pvt. Ltd.
Sd/-
JUDGMENT
Authorized Signatory
Enclose: MTNL Building Plan”
“MAHANAGAR TELEPHONE NIGAM LIMITED, MUMBAI
(A Govt, of India Enterprise)
O/o. The Dy. General Manager (Plg.) 3Rd, Floor, Telephone
House, V.S. Marg, Dadar (W), Mumbai-28.
Tel.No.2436 2333 / Fax 2437 5252
No.PELA-1-691/Standard Mills Compound/2011-12
Date: 31/10/2011
To
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M/s. Shree Ahuja Properties and Realtors Pvt. Ltd.
V.N. Sphere, Level Three,
199 Linking Road, Opp. Shoppers Stop,
Bandra (W), Mumbai - 400 050
Sub: Proposed building for MTNL, plan and layout. Ref:
Compliance of Condition No. 23 of LOI
Sir,
With reference to your letter dated 14/09/2011, it is brought to
kind notice that in compliance of Condition No.23 of Letter of
Intent No.SRA/ENG/1940/GS/ML&STOL/LOI dated
8/08/2008, it was required that the planning and specification
for the said buildable reservation shall be obtained from us.
However, the building plan and layout proposed by you
indicates that the proposed building for MTN is sandwiched
between SRA and saleable building. The building is not
suitable with regard to its size mentioned, apart from the other
difficulties such as separate building compound, a good and
proper access for the members of public to proposed MTNL
building. Thus the proposed dimensions in the layout building
is not acceptable to us.
In view of the above, kindly re-examine the case and submit
your proper proposal to have easy access, prominence and a
good ands usable layout for the proposed MTNL building.
JUDGMENT
Sd/-
Sr. Manager (LA)
MTNL, Mumbai”
11. After having virtually agreed to take 1706 sq. mtrs. built up area free of
cost, the appellant filed special leave petition questioning the order of the High
Court. It also filed an application for condonation of 401 days’ delay.
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12. We have heard Shri Harin P. Raval, learned senior counsel for the
appellant, S/Shri Mukul Rohatgi, P.P. Rao, Gopal Subramanium, Dr. A. M.
Singhvi and Shri Shekhar Naphade, learned senior counsel appearing for the
State of Maharashtra and others and carefully scrutinized the records including
the files made available by the counsel assisting Shri Raval. Shri Rohatgi argued
that the appellant’s prayer for condonation of delay should not be entertained
because it has not approached the Court with clean hands and the explanation
given for condonation of more than one year’s delay is wholly unsatisfactory. He
pointed out that Shri Dnyaneshwar Konde, who has filed affidavit in support of
the special leave petition, has verified the contents of the special leave petition,
synopsis and list of dates and interlocutory applications on the basis of
knowledge derived from the records and an attempt has been made to show that
Senior Management was not aware of the High Court’s order till November,
2011 but the appellant has deliberately omitted to make a mention of the letter
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sent by its own advocate to the advocate of respondent No.5 and the
correspondence exchanged between the officers of the appellant and respondent
No.5 on the issue of providing 1706 sq. mtrs. built up area free of cost. Shri
Rohatgi submitted that even though the officers of the rank of Assistant General
Manager (Planning), Divisional Manager and Senior Manager (LA) were very
much aware that Writ Petition No.1517/2010 had been disposed of by the High
Court vide order dated 30.7.2010, which was corrected on 13.8.2010 and
direction was given to respondent No.5 to deliver 1706 sq. mtrs. of built up area
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free of cost, but a misleading and false statement has been made in paragraphs 2
and 3 of the application for condonation of delay that Shri V.T. Dhere, Senior
Manager (LA) did not bring the High Court’s order to the notice of the Senior
Management till his retirement on 31.5.2011 and the order came to the
knowledge of the Senior Management during the pendency of SLP(C)
No.22747/2010 filed by three occupants of tenement Nos. 591, 592 and 593 in
respect of the adjoining plot. Learned senior counsel emphasised that the theory
of the Additional Solicitor General becoming aware of order dated 13.8.2010
from the file summoned on 7.11.2011 is clearly an afterthought and a patently
incorrect statement has been made to persuade this Court to entertain the special
leave petition by condoning the unexplained delay of more than one year. Shri
Rohatgi also invited the Court’s attention to paragraph 5(vii) of the rejoinder
filed by the appellant to the counter affidavit of respondent No.5 to show that as
early as in February, 2011 officers of the appellant became aware about the order
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passed by the High Court. Shri Rohatgi submitted that the conduct of the
appellant in seeking the intervention of the Court with unclean hands is sufficient
for non-suiting it. In support of his submissions, Shri Rohatgi relied upon the
judgments of this Court in Dalip Singh v. State of U.P. (2010) 2 SCC 114, Oswal
Fats and Oils Ltd. v. Commr. (Admn.) (2010) 4 SCC 728 and Postmaster General
v. Living Media India Ltd. (2012) 3 SCC 563 and order dated 16.2.2012 passed
in IA Nos.3-5 in SLP(C) No.4810/2012.
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13. Shri P.P. Rao, Shri Gopal Subramanium and Dr.A.M. Singhvi, learned
senior counsel appearing for other respondents supported Shri Rohatgi and
argued that the appellant is not entitled to be heard on the merits of the case
because it deliberately withheld several facts from this Court. Shri P.P. Rao
relied upon the judgment in Hari Narain v. Badri Das (1964) 2 SCR 203 (at 207,
208 and 209). Dr. Singhvi relied upon the judgment in Udai Chand v. Shankar
Lal (1978) 2 SCC 209.
14. Shri Harin P.Raval, learned senior counsel appearing for appellant invited
our attention to affidavit dated 17.2.2012 filed by Executive Director of the
appellant and some portions of the rejoinder filed to the counter affidavits of
respondent Nos. 5 and 6 and argued that the appellant cannot be accused of
concealment of material facts because none of the senior officers was aware
about the disposal of the writ petition by the High Court till November, 2011.
Shri Raval emphasised that the correspondence exchanged between the counsel
JUDGMENT
for the appellant and counsel for respondent No.5 or between respondent No.5
and officers of the rank of Assistant General Manager, Divisional Manager and
Senior Manager (LA) cannot lead to an inference that Senior Management of the
appellant was having knowledge about the High Court order. Shri Raval relied
upon the judgment in State of Karnataka v. Y. Moideen Kunhi (2009) 13 SCC
192 and argued that in matters like the present one in which larger public interest
is involved, this Court should overlook small aberrations in the pleadings or
delay in filing the special leave petition.
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15. We have considered the respective submissions. In paragraphs 2 and 3 of
the application for condonation of delay, the appellant has tried to explain the
delay by making following averments:
"2. That it is submitted that the writ petition was being pursued
by the Land Acquisition Department of MTNL, Mumbai and
was entrusted to Shri V.T. Dhere, Sr. Manager, (Land
Acquisition), ST No.71898. The said officer attended the court
hearings regularly during pendency of the petition before the
Hon'ble High Court. However, the passing of the order dated
13.08.2010 by the Hon'ble High Court was not brought to the
knowledge of the Sr. Management of the petitioner by Mr. V.T.
Dhere, Sr. Manager. In the meanwhile, Shri V.T.Dhere retired
from the services of the petitioner w.e.f. 31.5.2011.
3. That the order dated 13.8.2010 came to the knowledge of the
Sr. Management of the petitioner during the pendency of SLP
(C) No.22747/2010 filed by three occupants of the tenement
No.591, 593 and 592 in respect of adjoining plot No.FP No.
1087 TPS IV Mahim, Mumbai, before this Hon'ble Court.
While defending the said SLP, the Ld. ASG, called for the file
from the Legal Cell pertaining to the impugned order in the
present case relating to plot No. 1088 on 7.11.2011. On
perusing the file the Ld. ASG became aware of the order dated
13.08.2010 passed in respect of plot no. 1088 in WP No.
1517/2010 and sought the comments from the Ministry
regarding order dated 13.08.2010. On this the petitioner came to
know about the order dated 13.08.2010 and it was advised to
the petitioner to take appropriate steps for challenging the order
dated 13.8.2010 in Writ petition No. 1517/2010. It is also
relevant to note that the Ministry of Environment and Forest
and the Ministry of Communication & Information Technology
had vehemently defended SLP (C) 22747/2010 before this
Hon'ble Court and had vehemently opposed the action of the
State Govt, of Maharashtra in taking away the land bearing plot
no. 1087 and 1088 under the 'Slum Rehabilitation Scheme',
which belongs to the petitioner and was acquired for public
purposes of the petitioner. However, the said SLP was
dismissed as withdrawn in view of settlement of disputes
between the petitioners in that SLP and the concerned
Developer. However, while allowing the petitioners in the said
JUDGMENT
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SLP the Hon'ble court had observed that the rights of the
Ministry of Communication and Information Technology and
the Ministry of Environment and Forest would not be effected
and they were granted liberty to take appropriate steps. It is
submitted, that the present case is being filed on the ground that
public interest and exchequer has been defrauded to benefit
private individuals."
16. At the cost of repetition, we deem it proper to observe that the averments
contained in the application for condonation of delay have been verified by Shri
Dnyaneshwar Konde, who filed affidavit in support of the special leave petition,
on the basis of knowledge derived by him from the record. He is an officer of the
rank of Divisional Engineer. Therefore, it is reasonable to presume that before
filing the affidavit he must have gone through the entire record including letter
dated 12.10.2010 sent by Ms. S.I. Shah, Advocate for the appellant to Wadia
Ghandhy & Co., who represented respondent No.5 before the High Court and the
correspondence exchanged between the officers of the appellant and respondent.
A reading of that letter shows that Ms. S.I. Shah had written to the advocate for
JUDGMENT
respondent No.5 on the basis of the instructions given by the concerned officers
that separate MoU is required to be executed in respect of 1709 sq. mtrs.
constructed area, which was handed over to the appellant. This inference is
strengthened by the letters of Assistant General Manager (Planning), Divisional
Manager and Senior Manager (L.A.), which were sent to respondent No.5.
17. However, with a view to keep this Court in dark about the correspondence
exchanged on the issue of allotment of 1706 square meters of built up area by
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respondent No.5 to the appellant free of cost, the concerned officer made a
patently incorrect statement that order dated 13.8.2010 was not brought to the
knowledge of the Senior Management of the appellant by Mr. V.T. Dhere. In our
view, Ms. S.I. Shah could not have written letter to the Advocate of respondent
No.5, on her own, on the issue of signing of MoU for transfer of 1706 square
meters of built up area by respondent No.5. Any person of ordinary prudence is
entitled to assume that she must have done so under the instructions of the
concerned officers. The three officers who exchanged letters with respondent
No.5 were Class-I Officers of the appellant. They must have written to
respondent No.5 on the basis of instructions given by the higher officers.
Therefore, the mere fact that the file notings do not contain a corresponding entry
cannot lead to an inference that the senior management of the appellant was not
aware of the High Court’s order. If Ms. S.I. Shah and three officers of the
appellant had exceeded their brief and unauthorisedly exchanged
JUDGMENT
communications with respondent No.5 and its Advocate, then the senior officers
of the appellant would have certainly taken action against them. However, it is
neither the pleaded case of the appellant nor it has been suggested that Ms. S.I.
Shah and three officers had acted unauthorisedly. The averments contained in
paragraph 5(vii) of the rejoinder filed by the appellant to the counter of
respondent No.5 clearly shows that as early as in February, 2011, the officers of
the appellant knew that the High Court had disposed of the writ petition by
directing respondent No.5 to hand over 1706 sq. mtrs. built up area to the
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appellant free of cost. Therefore, the assertion contained in the application for
condonation of delay that the Senior Management did not know of the direction
given by the High Court till November, 2011 cannot but be treated as a deliberate
attempt to mislead the Court and on that ground alone the prayer for condonation
of delay is liable to be rejected.
18. In Hari Narain v. Badri Das (supra), this Court considered the prayer made
by the respondent for revocation of leave granted to the appellant who was a
tenant in the suit premises. The respondent had sued the appellant for eviction on
the ground of default in payment of rent and house tax. The trial Court dismissed
the suit. The appellate Court set aside the judgment of the trial Court and
decreed the suit. The second appeal filed by the appellant was dismissed by the
High Court. In the petition for special leave, the appellant made inaccurate
statement about his status as a statutory tenant and on the issue of payment of
rent. Shri M.C. Setalvad, appearing on behalf of the appellant submitted that he
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had not urged the particular grounds at the time of grant of leave. While agreeing
with Shri Setalvad, this Court refused to accept the explanation given by the
appellant for the inaccurate statement made in the special leave petition and
revoked the leave. This is evinced from the following observations made in the
judgment:
“It is true that in the present case, special leave was granted on
26th September, 1962 and it is possible for Mr Setalvad to
recall what he argued before the Court when special leave was
granted. But it is necessary to bear in mind that the appeal may
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come on for hearing long after special leave is granted, that
counsel appearing at the stage of admission may not be the
same as at the stage of final hearing, and the Bench that granted
special leave may not necessarily deal with the appeal at with
final stage. Therefore, it is no answer to the respondent's
contention that though the material statements in the special
leave petition may be substantially inaccurate, though not
wholly untrue, those statements may not have influenced the
Court in granting special leave. Mr Setalvad has also invited
our attention to the fact that the impugned statements and
grounds are substantially copied from the averments made in
the appeal before the High Court. That may be so, but the fact
still remains that two important statements which, if true, may
have been considerable assistance to the appellant in invoking
the protection of Section 13(1)(a) even on the construction
placed by the High Court on that section are found to be untrue,
and that, in our opinion, is a very serious infirmity in the
petition itself. It is of utmost importance that in making material
statements and setting forth grounds in applications for special
leave, care must be taken not to make any statements which are
inaccurate, untrue or misleading. In dealing with applications
for special leave, the Court naturally takes statements of fact
and grounds of fact contained in the petitions at their face value
and it would be unfair to betray the confidence of the Court by
making statements which are untrue and misleading.”
(emphasis added)
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19. In Dalip Singh v. State of Uttar Pradesh (supra), this Court considered the
question whether relief should be denied to the appellant who did not state
correct facts in the application filed before the Prescribed Authority and who did
not approach the High Court with clean hands. After making a reference to some
of the precedents, the Court observed:
“while exercising discretionary and equitable jurisdiction under
Article 136 of the Constitution, the facts and circumstances of
the case should be seen in their entirety to find out if there is
miscarriage of justice. If the appellant has not come forward
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with clean hands, has not candidly disclosed all the facts that he
is aware of and he intends to delay the proceedings, then the
Court will non-suit him on the ground of contumacious
conduct.”
20. In Oswal Fats and Oils Limited v. Additional Commissioner
(Administration) (supra), relief was denied to the appellant by making the
following observations:
“It is quite intriguing and surprising that the lease agreement
was not brought to the notice of the Additional Commissioner
and the learned Single Judge of the High Court and neither of
them was apprised of the fact that the appellant had taken 27.95
acres land on lease from the Government by unequivocally
conceding that it had purchased excess land in violation of
Section 154(1) of the Act and the same vested in the State
Government. In the list of dates and the memo of special leave
petition filed in this Court also there is no mention of lease
agreement dated 15-10-1994. This shows that the appellant has
not approached the Court with clean hands. The withholding of
the lease agreement from the Additional Commissioner, the
High Court and this Court appears to be a part of the strategy
adopted by the appellant to keep the quasi-judicial and judicial
forums including this Court in dark about the nature of its
possession over the excess land and make them believe that it
has been subjected to unfair treatment. If the factum of
execution of lease agreement and its contents were disclosed to
the Additional Commissioner, he would have definitely
incorporated the same in the order dated 30-5-2001. In that
event, the High Court or for that reason this Court would have
non-suited the appellant at the threshold. However, by
concealing a material fact, the appellant succeeded in
persuading the High Court and this Court to entertain
adventurous litigation instituted by it and pass interim orders. If
either of the Courts had been apprised of the fact that by virtue
of lease deed dated 15-10-1994, the appellant has succeeded in
securing temporary legitimacy for its possession over excess
land, then there would have been no occasion for the High
Court or this Court to entertain the writ petition or the special
leave petition.
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20. It is settled law that a person who approaches the court for
grant of relief, equitable or otherwise, is under a solemn
obligation to candidly disclose all the material/important facts
which have bearing on the adjudication of the issues raised in
the case. In other words, he owes a duty to the court to bring out
all the facts and refrain from concealing/suppressing any
material fact within his knowledge or which he could have
known by exercising diligence expected of a person of ordinary
prudence. If he is found guilty of concealment of material facts
or making an attempt to pollute the pure stream of justice, the
court not only has the right but a duty to deny relief to such
person.”
(emphasis supplied)
21. By applying the ratio of the above noted judgments to the facts of this
case, we hold that the appellant is guilty of not coming to this Court with clean
hands and the explanation given by it for 401 days’ delay has to be treated as
wholly unsatisfactory and the prayer for condonation of delay is liable to be
rejected.
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22. The judgment in State of Karnataka v. Y. Moideen Kunhi (supra) on which
reliance has been placed by Shri Harin P. Raval contains reiteration of the settled
principles of law that the Court should be liberal in exercising power under
Section 5 of the Limitation Act and cognizance can be taken of the impersonal
character of the Government as also inefficiency, lethargy and tardiness in the
functioning of the State and its agencies which, at times, results in delay and that
while deciding the application for condonation of delay, the Court should keep in
mind the larger public interest. However, that proposition cannot be invoked in
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the appellant’s case because it has been found guilty of suppression of facts and
making misleading statement.
23. Notwithstanding the above conclusion, we have considered the appellant’s
challenge to the order of the High Court, the tenor of which gives an impression
that counsel appearing for the parties had agreed to the transfer of 1706 sq. mtrs.
built up area by respondent No.5 to the appellant. If this was not so, the
appellant’s counsel would not have written letter dated 12.10.2010 to her
counterpart for execution of separate MoU and to indicate the time limit for
completion of the construction and handing over of possession and the officers of
the appellant would not have entered into correspondence with respondent No.5
for construction of separate building and providing independent access.
Therefore, the appellant cannot be heard to make a grievance against the
impugned order.
24. The matter deserves to be considered from another angle. If the appellant
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was of the view that the High Court had disposed of the writ petition without
examining its prayer for issue of a mandamus to the concerned respondents to
deliver possession of the acquired land, then it would have filed a petition for
review of the impugned order by asserting that even though the grievance made
in the writ petition in the matter of non-delivery of possession of the acquired
land had been highlighted during the course of hearing, the same has not been
decided by the High Court. However, the fact of the matter is that no such
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petition was filed. The reason for the appellant’s omission to adopt that course is
not far to see. The appellant knew that it was on a weak wicket. It had filed the
writ petition after almost three decades of pronouncement of the award by
respondent No.2 and there was no tangible explanation for the delay. We have no
doubt that if the appellant had pressed its prayer for issue of a mandamus to the
official respondents to deliver possession of the acquired land after evicting the
slum dwellers, the High Court would have non-suited it on the ground of laches
by taking cognizance of total inaction between 23.6.1998, i.e., the date on which
Deputy General Manager (Planning) had written letter to respondent No.2 to
hand over vacant possession of the acquired land or refund the compensation, and
January, 2006, when exchange of correspondence again started. The High Court
would have also taken note of the fact that while the appellant was sleeping over
its rights, the Municipal Corporation had sanctioned Slum Rehabilitation
Scheme, the Cooperative Society formed by the slum dwellers had entered into
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development agreement with respondent No.5 and the latter had constructed
buildings and handed over 600 units to the slum dwellers for permanent
residence and dismissed the writ petition by applying the ratio of the judgment of
the Constitution Bench in State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC
1006, the relevant passages of which are extracted below:
“It has been made clear more than once that the power to give
relief under Art. 226 is a discretionary power. This is specially
true in the case of power to issue writs in the nature of
mandamus. Among the several matters which the High Court
rightly take into consideration in the exercise of that discretion is
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the delay made by the aggrieved party in seeking this special
remedy and what excuse there is for it. Another is the nature of
controversy of facts and law that may have to be decided as
regards the availability of consequential relief. Thus, where, as in
these cases, a person comes to the Court for relief under Art. 226
on the allegation that he has been assessed to tax under a void
legislation and having paid it under a mistake is entitled to get it
back, the court, if it finds that the assessment was void, being
made under a void provision of law, and the payment was made
mistake, is still not bound to exercise its discretion directing
repayment. Whether repayment should be ordered in the exercise
of this discretion will depend in each case on its own facts and
circumstances. It is not easy nor is it desirable to lay down any
rule for universal application. It may however be stated as a
general rule that if there has been unreasonable delay the court
ought not ordinarily to lend its aid to a party by this
extraordinary remedy of mandamus.
Learned counsel is right in his submission that the provisions of
the Limitation Act do not as such apply to the granting of relief
under Art. 226 . It appears to us however that the maximum
period fixed by the legislature as the time within which the relief
by a suit in a civil court must be brought may ordinarily be taken
to be a reasonable standard by which delay in seeking remedy
under Art. 226 can be measured . The Court may consider the
delay unreasonable even if it is less than the period of limitation
prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the
court to hold that it is unreasonable. The period of limitation
prescribed for recovery of money paid by mistake under the
Limitation Act is three years from the date when the mistake is
known. If the mistake was known in these cases on or shortly
after January 17, 1956 the delay in making these applications
should be considered unreasonable.”
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(emphasis supplied)
25. Shri Harin P. Raval made valiant attempt to persuade us to consider the
appellant’s prayer for directing the respondents to hand over possession of that
portion of the acquired land on which construction has not been raised so far, but
we are not felt impressed. The delay of almost 3 decades stares in the face of the
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appellant and we do not find any justification for entertaining the prayer for issue
of a mandamus at this belated stage by ignoring the developments which have
taken place in the intervening period.
26. In the result, the appeal is dismissed as barred by time and also on merits.
..................................................J.
(G.S. SINGHVI)
..................................................J.
(V. GOPALA GOWDA)
New Delhi;
July 11, 2013.
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