Full Judgment Text
1
CORRECTED
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 611 OF 2008
Jawed Urdu Primary School
Through its Secretary and Anr. .. Appellants
Versus
Collector of Mumbai & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 29.09.2005 passed by the Division
Bench of the High Court of Judicature at Bombay in Writ Petition
No. 2356 of 2005 by which the High Court has dismissed the
said writ petition preferred by the appellants herein (the original
writ petitioners), the original writ petitioners have preferred the
present appeal.
2
2. The facts leading to the present appeal in nutshell are as
under:
It is the case on behalf of the appellants–original writ petitioners
that the appellantTrust registered under the provisions of the
Maharashtra Public Trusts Act came into existence by virtue of
trust deed on 28.02.2000. That respondent No. 4 herein –
Nasheman Welfare and Educational Society came into existence
in the month of December, 1999. That, in the month of March
2001, the appellantTrust started an Urdu Medium Secondary
School. That the school is located in the slum area. That the
school is in rental premises.
2.1 It was the case on behalf of the original writ petitioners that
due to increasing number of students, the appellantTrust was
finding it difficult to accommodate all of its students, therefore,
the original writ petitioners made an application on 25.07.2001
to the Collector of Greater Mumbai for a plot of land reserved for
primacy school located at CTS No. 174, Kirol and CTS No. 351
Asalpha, Ghatkopar (the land in question). According to the
appellantTrust, on such an application, the Collector of the
Greater Mumbai vide its communication dated 12.09.2001
forwarded the request of the appellantTrust to the City Survey
3
Officer, Ghatkopar and Tahsilder of Kurla and asked to conduct
the inspection of the site and submit a report, if the said plot can
be allotted to the appellantTrust. That, on 13.12.2001, the
Deputy Director of Education granted recognition on no grant
basis to the classes of StandardVIII of the Jawed Urdu High
Court run by appellantTrust from June 2000. That, on
02.04.2002, the Managing Trustee of the appellantTrust made
an application to the Collector of Greater Mumbai for allotment of
plot in question for the primary school. The said application was
submitted in ProformaA. That, on 24.09.2002, the Deputy
Education Inspector submitted his detailed report regarding
details of Trust, requirements and financial status of the
appellantTrust and recommended to allot the land in question to
the appellantTrust. That, on 24.09.2002, the Managing Trustee
of the appellantTrust made an application to the Principal
Secretary, Forest and Revenue Department for allotment of the
plot in question. That, on 27.09.2002, the Maharashtra State
Secondary and Higher Secondary Education Board granted
recognition to the appellantTrust. It was the case on behalf the
appellantTrust that thereafter on 21.04.2003, the Managing
Committee of the appellantTrust again made an application to
4
the Principal Secretary, Forest and Revenue Department,
Government of Maharashtra, Mumbai and submitted the
required documents for allotment of the plot in question. That,
on 28.04.2003, the appellantTrust wrote a letter to the
Commissioner of the Municipal Corporation of Greater Mumbai
for allotment of the plot for Multi Medium Primary School. That,
again on 02.05.2003, another application was made by the
appellantTrust for allotment of the plot in question. That, on
04.06.2003, the Corporation communicated to the appellant
Trust that, as per the policy of the Municipal Corporation, the
Municipal school plot to be allotted to private educational
institution is allotted by giving public advertisement in local
newspaper for calling application from the interested educational
institutions.
2.2 It was the case on behalf of the appellantTrust that, in
between, the appellantTrust learnt that respondent No. 4 –
Nasheman Education and Welfare Society located at Vikroli was
being actively considered for allotment of the plot in question,
though they were not involved in any educational activity and the
aim and objects of respondent No. 4 also do not provide for
running a primary school and, therefore, the appellantTrust,
5
through its Advocates gave a notice on 10.11.2003 to the
respondents calling upon them to inform about the actual status
of the plot in question within seven days and not to allot the plot
of land to any society or institution without advertisement in
local newspaper. That, in the month of February, 2004, the
appellantTrust filed Writ Petition No. 645 of 2004 before the
High Court of Bombay for issue of a writ of Certiorari, Writ of
Mandamus and an order of injunction from allotting the plot in
question to respondent No. 4 or any other
society/institution/person not conforming to the prescribed
norms for allotment of the said plot.
2.3 That, by an order dated 24.06.2004, the Division Bench of
the High Court disposed of the said writ petition by quashing and
setting aside the order of allotment in favour of respondent No. 4
and remanded the matter back to the Minister of Revenue. The
Division Bench also directed the Minister of Revenue to consider
the claim of the appellantTrust on one hand and respondent No.
4 on the other, afresh.
2.4 It is the case on behalf of the appellantTrust that thereafter
the appellantTrust submitted representation in support of its
case. That, by an order dated 01.06.2005, the then Chief
6
Minister and also the Revenue Minister passed an order to allot
the land in question in favour of respondent No. 4 mainly on the
ground that the appellantTrust is already running a school, may
be in the rented premises, however, respondent No. 4 proposes to
establish a new primary school and it is the endeavour of the
State to encourage the new institution.
2.5 Feeling aggrieved and dissatisfied with the order passed by
the then Chief Minister and also the Revenue Minister dated
01.06.2005 allotting the land in question in favour of respondent
No. 4, the appellants herein preferred Writ Petition No. 2356 of
2005 before the High Court. That, by the impugned judgment
and order, the High Court has dismissed the said writ petition
mainly and solely on the ground that, as such, the plot in
question was reserved for the primary school in the development
plan and that the appellantTrust never applied for establishing
the primary school, whereas respondent No. 4 has made
representation for allotment of the plot for establishing a primary
school.
3. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court dismissing the writ
7
petition, the original writ petitioners have preferred the present
appeal.
4. Shri B. B. Sawhney, learned senior counsel has appeared
on behalf of the appellantsoriginal writ petitioners. Shri N.R.
Katneshwarkar, learned advocate has appeared on behalf of the
State of Maharashtra. Shri Atul Yeshwant Chitale, learned
Senior Advocate has appeared on behalf of respondent No. 3 and
Shri Shyam Divan, learned Senior Advocate has appeared on
behalf of respondent No. 4.
5. Shri Sawhney, learned senior counsel appearing on behalf
of the appellantsoriginal writ petitioners has vehemently
submitted that the High Court has materially erred in dismissing
the writ petition preferred by the appellants herein solely on the
ground that the appellantTrust never applied for the allotment of
the land for establishing the primary school. It is vehemently
submitted by the learned senior counsel appearing on behalf of
the appellants that, as such, the appellants were running the
primary school and, in fact, they wanted to shift that primary
school to the plot in question and, therefore, they applied for the
allotment of the plot in question for establishing the primary
school also. Shri Sawhney, learned senior counsel appearing
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for the appellants has taken us through the various
correspondences of the applications/representations made by the
appellants in support of their case that the appellantsoriginal
writ petitioners did apply for the allotment of the land in question
for establishing the primary school.
5.1 It is vehemently submitted by the learned senior counsel
appearing for the appellants that the High Court has, therefore,
dismissed the writ petition and nonsuited the appellantsoriginal
writ petitioner on a wrong premise. Shri Sawhney, learned
senior counsel has further submitted that, as such, the object of
the appellantTrust is to run the educational institution both
secondary as well as the primary. It is submitted that, as such,
the appellants are running the educational institution to cater
the need of the slum area. It is submitted that as the educational
institution was being run in the rented premises, the appellant
Trust and the educational institution were facing difficulties and,
therefore, they applied for the allotment of the land in question.
It is vehemently submitted by the learned senior counsel for the
appellantsoriginal writ petitioners that, as such, in fact,
respondent No. 4 never applied for allotment of the land in
question for establishing the primary school. It is vehemently
9
submitted that even the object of respondent No. 4 Trust do not
provide for running/establishment of a primary school.
5.2 It is vehemently submitted by the learned senior counsel for
the appellants that, in fact, respondent No. 4 never applied for
allotment of the land in question in a prescribed format. It is
submitted that a simple representation was made to the then
Chief Minister for allotment of the land and the then Chief
Minister and the Revenue Minister allotted the land in question
in favour of respondent No. 4. It is submitted that, therefore, the
land in question ought not to have been/could not have been
allotted in favour of respondent No. 4Trust who, as such, was
not even running the primary school at the relevant time and/or
even they did not make an application for recognition of the
primary school. It is submitted that, therefore, the allotment of
the land in question in favour of respondent No. 4 was absolutely
arbitrary and illegal, which deserves to be quashed and set aside.
It is submitted that all the aforesaid facts, though were pointed
out to the High Court, the High Court did not consider the same
and has nonsuited the appellantsoriginal writ petitioners on the
wrong premise that the appellantsoriginal writ petitioners did
not apply for allotment of the land in question for establishing
10
the primary school. It is further submitted that even the
grounds/reasons given by the Chief Minister in the order dated
01.06.2005 are not germane and on the grounds stated in the
order dated 01.06.2005, the land in question could not have been
allotted to respondent No. 4Trust.
5.3 Making the above submissions, it is prayed to allow the
present appeal.
6. Shri Shyam Divan, learned Senior Advocate appearing on
behalf of respondent No. 4, has vehemently opposed the present
appeal. Shri Katneshwarkar, learned advocate appearing on
behalf of the respondentState of Maharashtra has also
supported the order passed by the then Chief Minister dated
01.06.2005.
6.1 Shri Shyam Divan, learned Senior Advocate appearing for
respondent No. 4, while opposing the present appeal, has
vehemently submitted that admittedly the land in question was
reserved for the primary school in the development plan. It is
submitted that even considering the applications/representations
made by the appellantsoriginal writ petitioners, which are on
record, it can be said that the appellantsoriginal writ petitioners
applied for the land in question for mixed use – for establishing
11
the secondary school as well as the primary school. It is
submitted by the learned senior counsel appearing for
respondent No. 4 that, in fact, respondent No. 4’s application was
filed on 11.06.2001 i.e. prior to appellants’ application filed on
25.07.2001. It is submitted that respondent No. 4’s application
sought allotment of the subject land specifically for the purpose
of setting up a primary school. It is submitted that, on the
contrary, the appellants’ application related to a high school. It
is submitted that, therefore, the High Court has rightly dismissed
the writ petition and has rightly refused to grant any relief in
favour of the appellantsoriginal writ petitioners.
6.2 Shri Shyam Divan, learned Senior Advocate appearing for
respondent No. 4, has further submitted that the subject land
has been validly allotted to respondent No. 4. It is submitted that
the subject land has been allotted in favour of respondent No. 4
in compliance of the procedure prescribed for the allotment of
Government lands in Maharashtra; and after due consideration
to the applications received by the Government authorities,
including the application filed by the appellantTrust. It is
submitted that the subject land cannot be allotted to the
12
appellantTrust since its application does not relate to the
construction of a primary school.
6.3 It is further submitted by Shri Shyam Divan, learned
Senior Advocate appearing for respondent No. 4, that the land in
question is allotted in favour of respondent No. 4 considering the
provisions of Section 40 of the Maharashtra Land Revenue Code,
1966 and even Rules 5 and 6 of the Maharashtra Land Revenue
(Disposal of Government Lands) Rules, 1971 and on the terms
and conditions stipulated in the circular dated 08.02.1983 and
after following the due procedure, as required.
6.4 It is submitted by Shri Shyam Divan, learned Senior
Advocate appearing for respondent No. 4 that, pursuant to the
order passed by the then Chief Minister and the Revenue
Minister dated 01.06.2005 granting allotment of the land in
question in favour of respondent No. 4, the name of respondent
No. 4 has been entered in the Revenue records. Making the
above submissions, it is prayed to dismiss the present appeal.
7. Shri Katneshwarkar, learned advocate appearing on behalf
of the respondentState of Maharashtra, has supported the order
dated 01.06.2005 as well as the impugned order passed by the
High Court.
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7.1 It is submitted by Shri Katneshwarkar, learned advocate
appearing on behalf of the respondentState of Maharashtra that,
pursuant to the directions issued by the Division Bench of the
High Court in Writ Petition No. 645 of 2004, the then Chief
Minister, who was also holding the charge of Revenue, considered
the cases of both – appellants as well as respondent No. 4 – and
thereafter considering the pros and cons of the matter and
considering the case of both the applicants, in the larger public
interest and also considering the policy of the State Government,
has allotted the land in question in favour of respondent No. 4. It
is submitted that no are alleged and/or any
mala fides
submissions are made by the learned senior counsel appearing
on behalf of he appellants on mala fides.
8. Shri Atul Yeshwant Chitale, learned Senior Advocate
appeared on behalf of respondent No. 3Brihanmumbai
Municipal Corporation, has stated at the bar that if neither the
appellantTrust nor respondent No. 4 are allotted the land in
question, respondent No. 3Brihanmumbai Municipal
Corporation is ready and willing to take the land in question and
establish a primary school to cater the need of the locality.
14
9. Heard the learned Counsel appearing on behalf of the
respective parties at length. We have perused and considered in
detail the material on record, more particularly, the
applications/representations made by the appellants as well as
the correspondence/representations/applications made by
respondent No. 4.
9.1 It is not in dispute that the land in question is reserved for
the primary school in the development plan. It is the case of
behalf of the appellants as well as respondent No. 4 that both of
them applied for the land in question for establishing the primary
school. It is required to be noted that the applications for
allotment of the land were required to be made in ProformaA.
Relying upon the representations/applications/communications,
right from 25.07.2001, and the subsequent correspondences on
record, it is the case on behalf of the appellantsoriginal writ
petitioners that they made the application for allotment of the
land in question specifically for establishing the primary school.
On a bare reading of the application dated 25.07.2001 made by
the appellantTrust, it appears that the said application cannot
be said to be made specifically for a primary school. In the
application dated 25.07.2001, the appellantTrust requested for
15
allotment of the land in question by stating that the land in
question is reserved for the school or for such purposes by the
Government of Maharashtra and the same is quite convenient
and suitable to them to have school building and to
accommodate their children/students and also to adjust the
growing crowd of the students in the said school. Thereafter, for
the first time, in the representation dated 02.04.2002, the
appellantTrust stated that they are running a high school and a
primary school. Even considering the representation dated
02.04.2002, it cannot be said that the appellants applied for the
allotment of the land specifically for establishing the primary
school. Even in the proforma, the reason for applying the land is
stated to be “for school and playground”. Even in the
subsequent communication dated 24.09.2002, there is no
specific mention that the land is applied specifically for
establishing the primary school. Merely because the appellant
Trust might be running even a primary school, along with the
secondary school, it cannot be presumed that the appellantTrust
applied for the land in question specifically for the primary
school. Therefore, considering the aforesaid facts and
circumstances of the case, it cannot be said that the High Court
16
has committed any error in not granting the relief to the
appellants and/or the High Court has committed any error in
dismissing the writ petition.
9.2 At the same time, we cannot lose sight of the fact that even
the grant of land in favour of respondent No. 4 also cannot be
sustained, as the same, for the reasons stated hereinabove, is
found to be illegal and/or arbitrary.
9.3 Respondent No. 4 is relying upon its first application dated
11.06.2001 in support of its case that they applied for the land in
question for setting up a primary school. However, considering
the material on record, there does not appear to be any
application submitted by respondent No. 4 dated 11.06.2001 and
that too in the ProformaA, but it is on record that a straight
request was made by respondent No. 4 to the then Chief Minister
(Annexure P28). Annexure P29 dated 11.06.2001 is by one
Mohd. Aarif Nasim Khan, the then Minister of State for Food,
Civil Supply and Consumer Protection forwarding the
representation received from respondent No. 4, by which he
recommended to allot the land in question in favour of
respondent No. 4. Even considering the documents produced at
Annexure P28, a representation/request made by respondent
17
No. 4 for allotment of the land in question made to the then Chief
Minister, it is not born out that a request was made for allotment
of land by respondent No. 4 specifically for establishment of a
primary school. Even in the recommendation made by the then
Minister of State for Food, Civil Supply and Consumer Protection
dated 11.06.2001, it cannot be said that even the
recommendation was for allotting the land in question in favour
of respondent No. 4 for establishing the primary school. On the
basis of the said representation, the State Government took a
decision and/or granted sanction to grant the land in question in
favour of respondent No. 4. The subsequent opinions of the
various authorities, if are perused and considered, they are solely
on the basis that the Government has granted the sanction to
allot the land in favour of respondent No. 4. It is also required to
be noted at this stage that even at the relevant time respondent
No. 4 did not even apply for the recognition to start a primary
school. At this stage, noting on the file of the Revenue
Department dated 22.09.2004 deserves to be noted, which reads
as under:
“22092004 The Education Department has not
received any proposal from the Nasheman Education
Welfare Society about starting a school. Further, even
18
a permission has not been given to the society for a
primary school at the place in question. However,
please see the order of the Hon’ble Chief Minister on
page 73/TV. Pursuant thereto there should be no
objection for the Finance Department to concur.”
Therefore, considering the entire material on record and the
circumstances narrated hereinabove, even respondent No. 4
was not eligible and/or entitled to the allotment of the land in
question, as they also never applied for allotment of the land
in question specifically for establishing the primary school
and, that too, in ProformaA. A simple representation was
made to the then Chief Minister and also the Revenue
Minister for allotment and the same representation came to
be accepted by the Government. Therefore, the grant of the
land in favour of respondent No. 4 is also illegal and arbitrary
and the same has been confirmed subsequently by the
concerned Minister by an order dated 01.06.2005 which was
impugned before the High Court. Even the grounds/reasons
stated in the order dated 01.06.2005 confirming the
allotment in favour respondent No. 4 also cannot be said to
be germane and/or a valid ground/reason to allot the land in
question in favour of respondent No. 4. As observed
hereinabove, even respondent No. 4 was not entitled to the
19
allotment of land in question for the reasons stated
hereinabove. Under the circumstances, the allotment of land
in question in favour of respondent No. 4 also cannot be
sustained and the same deserves to be quashed and set aside
by this this Court even in exercise of its powers under Article
142 of the Constitution of India, as this Court has once found
that the allotment in favour of respondent No. 4 is also illegal
and arbitrary, this Court is of the opinion that not interfering
with the order dated 01.06.2005 and/or grant of land in
question in favour of respondent No. 4 would tantamount to
continuing the illegality.
10. As stated by the learned counsel appearing on behalf of
respondent No. 3Brihanmumbai Municipal Corporation at
the bar that if neither the appellantTrust nor respondent No.
4 are allotted the land in question, considering the growing
population and the need of the primary school in the locality,
respondent No. 3Brihanmumbai Municipal Corporation is
ready and willing to take the land in question and establish a
primary school in the locality.
20
11. In view of the above and for the reasons stated above,
we dispose of the present appeal with the following
observations and directions:
(i) The impugned judgment and order dated
29.09.2005 passed by the High Court is hereby
confirmed. It is observed and held that the appellants
hereinoriginal writ petitioners were rightly held to be not
entitled to allotment of the land in question;
(ii) The order dated 01.06.2005 allotting the land in
question in favour of respondent No. 4 is also hereby
quashed and set aside. Therefore, the allotment granted
in favour of respondent No. 4 is hereby quashed and set
aside;
(iii) Neither the appellantsoriginal writ petitioners nor
respondent No. 4 are entitled to the allotment of the land
in question; and
(iv) The land in question be granted/allotted in favour
of respondent No. 3Brihanmumbai Municipal
Corporation after complying with other procedural
requirements and on compliance of the other terms and
conditions in accordance with law and the policy, so that
21
respondent No 3 may establish and run the primary
school on the land in question which will be in the larger
public interest.
12. The present appeal is accordingly disposed of in
terms of the above. However, in the facts and
circumstances of the case, there shall be no order as to
costs.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
April 9, 2019.
22
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 611 OF 2008
Jawed Urdu Primary School
Through its Secretary and Anr. .. Appellants
Versus
Collector of Mumbai & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 29.09.2005 passed by the Division
Bench of the High Court of Judicature at Bombay in Writ Petition
No. 2356 of 2005 by which the High Court has dismissed the
said writ petition preferred by the appellants herein (the original
writ petitioners), the original writ petitioners have preferred the
present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
23
It is the case on behalf of the appellants–original writ petitioners
that the appellantTrust registered under the provisions of the
Maharashtra Public Trusts Act came into existence by virtue of
trust deed on 28.02.2000. That respondent No. 4 herein –
Nasheman Welfare and Educational Society came into existence
in the month of December, 1999. That, in the month of March
2001, the appellantTrust started an Urdu Medium Secondary
School. That the school is located in the slum area. That the
school is in rental premises.
2.1 It was the case on behalf of the original writ petitioners that
due to increasing number of students, the appellantTrust was
finding it difficult to accommodate all of its students, therefore,
the original writ petitioners made an application on 25.07.2001
to the Collector of Greater Mumbai for a plot of land reserved for
primacy school located at CTS No. 174, Kirol and CTS No. 351
Asalpha, Ghatkopar (the land in question). According to the
appellantTrust, on such an application, the Collector of the
Greater Mumbai vide its communication dated 12.09.2001
forwarded the request of the appellantTrust to the City Survey
Officer, Ghatkopar and Tahsilder of Kurla and asked to conduct
the inspection of the site and submit a report, if the said plot can
24
be allotted to the appellantTrust. That, on 13.12.2001, the
Deputy Director of Education granted recognition on no grant
basis to the classes of StandardVIII of the Jawed Urdu High
Court run by appellantTrust from June 2000. That, on
02.04.2002, the Managing Trustee of the appellantTrust made
an application to the Collector of Greater Mumbai for allotment of
plot in question for the primary school. The said application was
submitted in ProformaA. That, on 24.09.2002, the Deputy
Education Inspector submitted his detailed report regarding
details of Trust, requirements and financial status of the
appellantTrust and recommended to allot the land in question to
the appellantTrust. That, on 24.09.2002, the Managing Trustee
of the appellantTrust made an application to the Principal
Secretary, Forest and Revenue Department for allotment of the
plot in question. That, on 27.09.2002, the Maharashtra State
Secondary and Higher Secondary Education Board granted
recognition to the appellantTrust. It was the case on behalf the
appellantTrust that thereafter on 21.04.2003, the Managing
Committee of the appellantTrust again made an application to
the Principal Secretary, Forest and Revenue Department,
Government of Maharashtra, Mumbai and submitted the
25
required documents for allotment of the plot in question. That,
on 28.04.2003, the appellantTrust wrote a letter to the
Commissioner of the Municipal Corporation of Greater Mumbai
for allotment of the plot for Multi Medium Primary School. That,
again on 02.05.2003, another application was made by the
appellantTrust for allotment of the plot in question. That, on
04.06.2003, the Corporation communicated to the appellant
Trust that, as per the policy of the Municipal Corporation, the
Municipal school plot to be allotted to private educational
institution is allotted by giving public advertisement in local
newspaper for calling application from the interested educational
institutions.
2.2 It was the case on behalf of the appellantTrust that, in
between, the appellantTrust learnt that respondent No. 4 –
Nasheman Education and Welfare Society located at Vikroli was
being actively considered for allotment of the plot in question,
though they were not involved in any educational activity and the
aim and objects of respondent No. 4 also do not provide for
running a primary school and, therefore, the appellantTrust,
through its Advocates gave a notice on 10.11.2003 to the
respondents calling upon them to inform about the actual status
26
of the plot in question within seven days and not to allot the plot
of land to any society or institution without advertisement in
local newspaper. That, in the month of February, 2004, the
appellantTrust filed Writ Petition No. 645 of 2004 before the
High Court of Bombay for issue of a writ of Certiorari, Writ of
Mandamus and an order of injunction from allotting the plot in
question to respondent No. 4 or any other
society/institution/person not conforming to the prescribed
norms for allotment of the said plot.
2.3 That, by an order dated 24.06.2004, the Division Bench of
the High Court disposed of the said writ petition by quashing and
setting aside the order of allotment in favour of respondent No. 4
and remanded the matter back to the Minister of Revenue. The
Division Bench also directed the Minister of Revenue to consider
the claim of the appellantTrust on one hand and respondent No.
4 on the other, afresh.
2.4 It is the case on behalf of the appellantTrust that thereafter
the appellantTrust submitted representation in support of its
case. That, by an order dated 01.06.2005, the then Chief
Minister and also the Revenue Minister passed an order to allot
the land in question in favour of respondent No. 4 mainly on the
27
ground that the appellantTrust is already running a school, may
be in the rented premises, however, respondent No. 4 proposes to
establish a new primary school and it is the endeavour of the
State to encourage the new institution.
2.5 Feeling aggrieved and dissatisfied with the order passed by
the then Chief Minister and also the Revenue Minister dated
01.06.2005 allotting the land in question in favour of respondent
No. 4, the appellants herein preferred Writ Petition No. 2356 of
2005 before the High Court. That, by the impugned judgment
and order, the High Court has dismissed the said writ petition
mainly and solely on the ground that, as such, the plot in
question was reserved for the primary school in the development
plan and that the appellantTrust never applied for establishing
the primary school, whereas respondent No. 4 has made
representation for allotment of the plot for establishing a primary
school.
3. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court dismissing the writ
petition, the original writ petitioners have preferred the present
appeal.
28
4. Shri B. B. Sawhney, learned senior counsel has appeared
on behalf of the appellantsoriginal writ petitioners. Shri N.R.
Katneshwarkar, learned advocate has appeared on behalf of the
State of Maharashtra. Shri Atul Yeshwant Chitale, learned
Senior Advocate has appeared on behalf of respondent No. 3 and
Shri Shyam Divan, learned Senior Advocate has appeared on
behalf of respondent No. 4.
5. Shri Sawhney, learned senior counsel appearing on behalf
of the appellantsoriginal writ petitioners has vehemently
submitted that the High Court has materially erred in dismissing
the writ petition preferred by the appellants herein solely on the
ground that the appellantTrust never applied for the allotment of
the land for establishing the primary school. It is vehemently
submitted by the learned senior counsel appearing on behalf of
the appellants that, as such, the appellants were running the
primary school and, in fact, they wanted to shift that primary
school to the plot in question and, therefore, they applied for the
allotment of the plot in question for establishing the primary
school also. Shri Sawhney, learned senior counsel appearing
for the appellants has taken us through the various
correspondences of the applications/representations made by the
29
appellants in support of their case that the appellantsoriginal
writ petitioners did apply for the allotment of the land in question
for establishing the primary school.
5.1 It is vehemently submitted by the learned senior counsel
appearing for the appellants that the High Court has, therefore,
dismissed the writ petition and nonsuited the appellantsoriginal
writ petitioner on a wrong premise. Shri Sawhney, learned
senior counsel has further submitted that, as such, the object of
the appellantTrust is to run the educational institution both
secondary as well as the primary. It is submitted that, as such,
the appellants are running the educational institution to cater
the need of the slum area. It is submitted that as the educational
institution was being run in the rented premises, the appellant
Trust and the educational institution were facing difficulties and,
therefore, they applied for the allotment of the land in question.
It is vehemently submitted by the learned senior counsel for the
appellantsoriginal writ petitioners that, as such, in fact,
respondent No. 4 never applied for allotment of the land in
question for establishing the primary school. It is vehemently
submitted that even the object of respondent No. 4 Trust do not
provide for running/establishment of a primary school.
30
5.2 It is vehemently submitted by the learned senior counsel for
the appellants that, in fact, respondent No. 4 never applied for
allotment of the land in question in a prescribed format. It is
submitted that a simple representation was made to the then
Chief Minister for allotment of the land and the then Chief
Minister and the Revenue Minister allotted the land in question
in favour of respondent No. 4. It is submitted that, therefore, the
land in question ought not to have been/could not have been
allotted in favour of respondent No. 4Trust who, as such, was
not even running the primary school at the relevant time and/or
even they did not make an application for recognition of the
primary school. It is submitted that, therefore, the allotment of
the land in question in favour of respondent No. 4 was absolutely
arbitrary and illegal, which deserves to be quashed and set aside.
It is submitted that all the aforesaid facts, though were pointed
out to the High Court, the High Court did not consider the same
and has nonsuited the appellantsoriginal writ petitioners on the
wrong premise that the appellantsoriginal writ petitioners did
not apply for allotment of the land in question for establishing
the primary school. It is further submitted that even the
grounds/reasons given by the Chief Minister in the order dated
31
01.06.2005 are not germane and on the grounds stated in the
order dated 01.06.2005, the land in question could not have been
allotted to respondent No. 4Trust.
5.3 Making the above submissions, it is prayed to allow the
present appeal.
6. Shri Shyam Divan, learned Senior Advocate appearing on
behalf of respondent No. 4, has vehemently opposed the present
appeal. Shri Katneshwarkar, learned advocate appearing on
behalf of the respondentState of Maharashtra has also
supported the order passed by the then Chief Minister dated
01.06.2005.
6.1 Shri Shyam Divan, learned Senior Advocate appearing for
respondent No. 4, while opposing the present appeal, has
vehemently submitted that admittedly the land in question was
reserved for the primary school in the development plan. It is
submitted that even considering the applications/representations
made by the appellantsoriginal writ petitioners, which are on
record, it can be said that the appellantsoriginal writ petitioners
applied for the land in question for mixed use – for establishing
the secondary school as well as the primary school. It is
submitted by the learned senior counsel appearing for
32
respondent No. 4 that, in fact, respondent No. 4’s application was
filed on 11.06.2001 i.e. prior to appellants’ application filed on
25.07.2001. It is submitted that respondent No. 4’s application
sought allotment of the subject land specifically for the purpose
of setting up a primary school. It is submitted that, on the
contrary, the appellants’ application related to a high school. It
is submitted that, therefore, the High Court has rightly dismissed
the writ petition and has rightly refused to grant any relief in
favour of the appellantsoriginal writ petitioners.
6.2 Shri Shyam Divan, learned Senior Advocate appearing for
respondent No. 4, has further submitted that the subject land
has been validly allotted to respondent No. 4. It is submitted that
the subject land has been allotted in favour of respondent No. 4
in compliance of the procedure prescribed for the allotment of
Government lands in Maharashtra; and after due consideration
to the applications received by the Government authorities,
including the application filed by the appellantTrust. It is
submitted that the subject land cannot be allotted to the
appellantTrust since its application does not relate to the
construction of a primary school.
33
6.3 It is further submitted by Shri Shyam Divan, learned
Senior Advocate appearing for respondent No. 4, that the land in
question is allotted in favour of respondent No. 4 considering the
provisions of Section 40 of the Maharashtra Land Revenue Code,
1966 and even Rules 5 and 6 of the Maharashtra Land Revenue
(Disposal of Government Lands) Rules, 1971 and on the terms
and conditions stipulated in the circular dated 08.02.1983 and
after following the due procedure, as required.
6.4 It is submitted by Shri Shyam Divan, learned Senior
Advocate appearing for respondent No. 4 that, pursuant to the
order passed by the then Chief Minister and the Revenue
Minister dated 01.06.2005 granting allotment of the land in
question in favour of respondent No. 4, the name of respondent
No. 4 has been entered in the Revenue records. Making the
above submissions, it is prayed to dismiss the present appeal.
7. Shri Katneshwarkar, learned advocate appearing on behalf
of the respondentState of Maharashtra, has supported the order
dated 01.06.2005 as well as the impugned order passed by the
High Court.
7.1 It is submitted by Shri Katneshwarkar, learned advocate
appearing on behalf of the respondentState of Maharashtra that,
34
pursuant to the directions issued by the Division Bench of the
High Court in Writ Petition No. 645 of 2004, the then Chief
Minister, who was also holding the charge of Revenue, considered
the cases of both – appellants as well as respondent No. 4 – and
thereafter considering the pros and cons of the matter and
considering the case of both the applicants, in the larger public
interest and also considering the policy of the State Government,
has allotted the land in question in favour of respondent No. 4. It
is submitted that no mala fides are alleged and/or any
submissions are made by the learned senior counsel appearing
on behalf of he appellants on mala fides.
8. Shri Atul Yeshwant Chitale, learned Senior Advocate
appeared on behalf of respondent No. 3Brihanmumbai
Municipal Corporation, has stated at the bar that if neither the
appellantTrust nor respondent No. 4 are allotted the land in
question, respondent No. 3Brihanmumbai Municipal
Corporation is ready and willing to take the land in question and
establish a primary school to cater the need of the locality.
9. Heard the learned Counsel appearing on behalf of the
respective parties at length. We have perused and considered in
detail the material on record, more particularly, the
35
applications/representations made by the appellants as well as
the correspondence/representations/applications made by
respondent No. 4.
9.1 It is not in dispute that the land in question is reserved for
the primary school in the development plan. It is the case of
behalf of the appellants as well as respondent No. 4 that both of
them applied for the land in question for establishing the primary
school. It is required to be noted that the applications for
allotment of the land were required to be made in ProformaA.
Relying upon the representations/applications/communications,
right from 25.07.2001, and the subsequent correspondences on
record, it is the case on behalf of the appellantsoriginal writ
petitioners that they made the application for allotment of the
land in question specifically for establishing the primary school.
On a bare reading of the application dated 25.07.2001 made by
the appellantTrust, it appears that the said application cannot
be said to be made specifically for a primary school. In the
application dated 25.07.2001, the appellantTrust requested for
allotment of the land in question by stating that the land in
question is reserved for the school or for such purposes by the
Government of Maharashtra and the same is quite convenient
36
and suitable to them to have school building and to
accommodate their children/students and also to adjust the
growing crowd of the students in the said school. Thereafter, for
the first time, in the representation dated 02.04.2002, the
appellantTrust stated that they are running a high school and a
primary school. Even considering the representation dated
02.04.2002, it cannot be said that the appellants applied for the
allotment of the land specifically for establishing the primary
school. Even in the proforma, the reason for applying the land is
stated to be “for school and playground”. Even in the
subsequent communication dated 24.09.2002, there is no
specific mention that the land is applied specifically for
establishing the primary school. Merely because the appellant
Trust might be running even a primary school, along with the
secondary school, it cannot be presumed that the appellantTrust
applied for the land in question specifically for the primary
school. Therefore, considering the aforesaid facts and
circumstances of the case, it cannot be said that the High Court
has committed any error in not granting the relief to the
appellants and/or the High Court has committed any error in
dismissing the writ petition.
37
9.2 At the same time, we cannot lose sight of the fact that even
the grant of land in favour of respondent No. 4 also cannot be
sustained, as the same, for the reasons stated hereinabove, is
found to be illegal and/or arbitrary.
9.3 Respondent No. 4 is relying upon its first application dated
11.06.2001 in support of its case that they applied for the land in
question for setting up a primary school. However, considering
the material on record, there does not appear to be any
application submitted by respondent No. 4 dated 11.06.2001 and
that too in the ProformaA, but it is on record that a straight
request was made by respondent No. 4 to the then Chief Minister
(Annexure P28). Annexure P29 dated 11.06.2001 is by one
Mohd. Aarif Nasim Khan, the then Minister of State for Food,
Civil Supply and Consumer Protection forwarding the
representation received from respondent No. 4, by which he
recommended to allot the land in question in favour of
respondent No. 4. Even considering the documents produced at
Annexure P28, a representation/request made by respondent
No. 4 for allotment of the land in question made to the then Chief
Minister, it is not born out that a request was made for allotment
of land by respondent No. 4 specifically for establishment of a
38
primary school. Even in the recommendation made by the then
Minister of State for Food, Civil Supply and Consumer Protection
dated 11.06.2001, it cannot be said that even the
recommendation was for allotting the land in question in favour
of respondent No. 4 for establishing the primary school. On the
basis of the said representation, the State Government took a
decision and/or granted sanction to grant the land in question in
favour of respondent No. 4. The subsequent opinions of the
various authorities, if are perused and considered, they are solely
on the basis that the Government has granted the sanction to
allot the land in favour of respondent No. 4. It is also required to
be noted at this stage that even at the relevant time respondent
No. 4 did not even apply for the recognition to start a primary
school. At this stage, noting on the file of the Revenue
Department dated 22.09.2004 deserves to be noted, which reads
as under:
“22092004 The Education Department has not
received any proposal from the Nasheman Education
Welfare Society about starting a school. Further, even
a permission has not been given to the society for a
primary school at the place in question. However,
please see the order of the Hon’ble Chief Minister on
page 73/TV. Pursuant thereto there should be no
objection for the Finance Department to concur.”
39
Therefore, considering the entire material on record and the
circumstances narrated hereinabove, even respondent No. 4
was not eligible and/or entitled to the allotment of the land in
question, as they also never applied for allotment of the land
in question specifically for establishing the primary school
and, that too, in ProformaA. A simple representation was
made to the then Chief Minister and also the Revenue
Minister for allotment and the same representation came to
be accepted by the Government. Therefore, the grant of the
land in favour of respondent No. 4 is also illegal and arbitrary
and the same has been confirmed subsequently by the
concerned Minister by an order dated 01.06.2005 which was
impugned before the High Court. Even the grounds/reasons
stated in the order dated 01.06.2005 confirming the
allotment in favour respondent No. 4 also cannot be said to
be germane and/or a valid ground/reason to allot the land in
question in favour of respondent No. 4. As observed
hereinabove, even respondent No. 4 was not entitled to the
allotment of land in question for the reasons stated
hereinabove. Under the circumstances, the allotment of land
in question in favour of respondent No. 4 also cannot be
40
sustained and the same deserves to be quashed and set aside
by this this Court even in exercise of its powers under Article
142 of the Constitution of India, as this Court has once found
that the allotment in favour of respondent No. 4 is also illegal
and arbitrary, this Court is of the opinion that not interfering
with the order dated 01.06.2005 and/or grant of land in
question in favour of respondent No. 4 would tantamount to
continuing the illegality.
10. As stated by the learned counsel appearing on behalf of
respondent No. 3Brihanmumbai Municipal Corporation at
the bar that if neither the appellantTrust nor respondent No.
4 are allotted the land in question, considering the growing
population and the need of the primary school in the locality,
respondent No. 3Brihanmumbai Municipal Corporation is
ready and willing to take the land in question and establish a
primary school in the locality.
11. In view of the above and for the reasons stated above,
we dispose of the present appeal with the following
observations and directions:
(i) The impugned judgment and order dated
29.09.2005 passed by the High Court is hereby
41
confirmed. It is observed and held that the appellants
hereinoriginal writ petitioners were rightly held to be not
entitled to allotment of the land in question;
(ii) The order dated 01.06.205 allotting the land in
question in favour of respondent No. 4 is also hereby
quashed and set aside. Therefore, the allotment granted
in favour of respondent No. 4 is hereby quashed and set
aside;
(iii) Neither the appellantsoriginal writ petitioners nor
respondent No. 4 are entitled to the allotment of the land
in question; and
(iv) The land in question be granted/allotted in favour
of respondent No. 3Brihanmumbai Municipal
Corporation after complying with other procedural
requirements and on compliance of the other terms and
conditions in accordance with law and the policy, so that
respondent No 3 may establish and run the primary
school on the land in question which will be in the larger
public interest.
12. The present appeal is accordingly disposed of in
terms of the above. However, in the facts and
42
circumstances of the case, there shall be no order as to
costs.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
April 9, 2019.