Gandhi Mission Vs. City & Industrial Development Corporation Ltd. & Ors
 Insc 486 (16
B. Sinha & C. K. Thakker C.K. Thakker, J.
present appeal is directed against the Judgment and order passed by the High
Court of Judicature at Bombay, Bench at Aurangabad on October 31, 2002 in Writ
Petition No. 4952 of 1999.
appreciate the controversy raised in the appeal, few relevant facts may be
appellant (Mahatma Gandhi Mission) is a charitable trust and is registered
under the Bombay Public Trusts, Act, 1950. It is established with the aim and
object of providing higher educational facilities in rural and backward areas
of the State of Maharashtra. The appellant trust is running
Medical and Engineering Colleges at New Mumbai, Aurangabad and Nanded in Maharashtra and at Noida in Uttar Pradesh. The
trust is also running other educational courses, such as, Master of Business
Administration, Bachelor of Journalism, Nursing, etc. It is one of the reputed
educational institutions in the State of Maharashtra. According to the appellant - trust, Respondent No. 1 City
& Industrial Development Corporation Ltd. ('CIDCO' for short) is a
statutory authority constituted under the Maharashtra Regional Town Planning
Act, 1966 (hereinafter referred to as the 'Act') for the planned development of
the city of Aurangabad and for allotment of land to individuals as well as
institutions for housing, commercial and charitable purposes.
appellant-trust for the establishment of Medical College, Hospital, Engineering College and other institutions made an application to CIDCO for
allotment of land at Aurangabad. According to the appellant, after
considering the requirement of land by the Trust, CIDCO was pleased to make
allotment from the plot of land available with CIDCO known as 'Town Centre'
(N-6 CIDCO) by passing resolutions. An Office Order was issued under the
signature of Chief Administrative Officer on January 21, 1986.
land was allotted for the following purposes;
Housing scheme for employees of Jawaharlal Nehru Engineering College : 2.47 Hectres : Rs. 90/- per sq. mtr.;
Charitable Hospital : 2 Hectres : Rs. 45/- per sq. mtr.;
Stadium and Club site : 9.74 Hectres : Rs. 9/- per sq. mtr.
asserted by the appellant that consequent upon allotment of land, the trust was
put into possession of the land allotted for the purpose of housing scheme for
employees of Jawaharlal Nehru Engineering College. It is also the case of the appellant-trust that the land
was barren and hilly and there was no specific marking on the spot nor
demarcation of boundaries made by CIDCO. In respect of lands allotted for Charitable Hospital, Engineering College and Club and Stadium, agreements were executed in favour of
the trust but no such agreement was executed for the land allotted for housing
scheme of employees. Actual measurement was not made though the land
admeasuring 2.47 H. had been allotted for housing purposes. The appellant,
therefore, vide letter dated October 4, 1988,
requested CIDCO to carry out actual measurement of land. CIDCO instead of
carrying out measurement, issued a notice on 3rd December, 1988 asking the appellant-trust to pay the amount to CIDCO. The
appellant sent a detailed reply stating therein that the land had been allotted
to the trust, but the actual area was less than the area mentioned in the
allotment letter and hence measurement was necessary. CIDCO was, therefore,
requested to carry out measurement of the land. It is also the case of the
appellant-trust that payment was made for the land allotted for construction of
houses of employees and in spite of such payment, no action was taken by CIDCO.
by a communication dated November
15, 1996, CIDCO
cancelled the allotment and directed the appellant-trust to remove construction
made on the said land and hand over possession to CIDCO.
trust informed CIDCO that the land had already been granted and the trust was
in legal and lawful possession of the land. CIDCO, however, insisted for actual
and vacant physical possession of the land from the trust and vide an order
dated October 11, 1999 asked the Secretary of the appellant-trust to hand over
possession of the land to CIDCO within three days from the receipt of the
letter failing which necessary actions would be taken by CIDCO for taking
appellant-trust, in the light of the stand taken by CIDCO and direction to hand
over possession of land which had been legally and lawfully allotted to the
trust, instituted a petition in the High Court of Bombay at Aurangabad Bench
for quashing and setting aside letter dated October 11, 1999 and directing
CIDCO to take measurement of all the lands allotted to the trust through the
office of the District Inspector of Land Records, Aurangabad and to decide
whether any amount is due and payable by the appellant-trust in respect of land
allotted to the trust for residential purposes of Jawaharlal Nehru Engineering
College employees. Interim relief was also sought. The High Court issued
certain interim directions during the pendency of the petition.
affidavit in reply was filed on behalf of CIDCO inter alia contending that the
petition filed under Article 226 of the Constitution was not maintainable. The
appellant was trying to seek specific performance of the contract. It was also
contended that there was gross delay and laches on the part of the petitioner
in approaching the court inasmuch as the order of cancellation was passed in
November, 1996 whereas the petition was filed in 1999. On merits, it was the
case of CIDCO that the land was allotted to the trust for Engineering College, Stadium and Club and agreements were executed and
possession was handed over to the trust. Allotment relating to housing scheme
of Jawaharlal Nehru Engineering College was, however, totally an independent issue. Whereas for
other purposes allotment had been made, in respect of housing scheme for
employees, neither a deed was executed nor possession was handed over to the
trust. By taking law in its hand, illegal and unlawful possession of land
belonging to CIDCO had been taken by the trust which action was highly
objectionable. CIDCO, therefore, asked the trust to restore possession but it
was not acceded by the trust and, hence, the impugned action was taken of
cancellation of allotment.
also alleged by CIDCO that no full and final payment was made by the trust even
for the land allotted and possession handed over to the trust.
trust, therefore, was not entitled to any relief from the court.
Division Bench of the High Court, in the light of rival contentions of the
parties, considered the facts of the case keeping in view documentary evidence
produced before it. The court on the basis of materials available held that at
no point of time possession of land was handed over by CIDCO to the trust for
construction of houses of employees of Jawaharlal Nehru Engineering College. No agreement and/or deed was
executed by CIDCO in favour of trust. It was, therefore, clear that the trust
was in illegal and unlawful possession of the property belonged to CIDCO.
trust was unable to produce any document, panchnama or communication regarding
handing over possession of land by CIDCO. The case put forward by CIDCO
appeared to the High Court to be more probable that the trust unlawfully
occupied the land. It was, therefore, open to CIDCO to ask the trust to restore
possession to CIDCO, observed the High Court. The court noted that no full
payment was made by trust even for the land allotted to the trust by CIDCO and
substantial amount remained to be paid. The High Court held that CIDCO was
right in appropriating Rs. five lakhs for the land allotted to the trust and it
could not be said that the payment was made by the trust to CIDCO for allotment
of land for the purpose of construction of quarters for employees. The High
Court accordingly dismissed the petition.
Special Leave Petition was filed in this Court, the learned counsel for the
petitioner/appellant stated that forgetting the controversy raised about the
area of land, the trust would accept that the area of land was 2.47 H. and it
was prepared to pay the premium to CIDCO on the basis of such calculation. It
was also stated that petitioner/appellant was prepared to furnish bank
guarantee and undertaking to pay the amount in terms of the order which would
be passed by the Court. This Court, therefore, in the order dated December 16, 2002 asked the appellant to make such
statement on affidavit without prejudice to the respondent's rights.
matter was thereafter adjourned from time to time. On 25th February, 2005, leave was granted and office was
directed to place the matter for final hearing after summer vacation. Thus, the
matter is placed before us.
have heard the learned counsel for the parties. Mr. Nafde, Senior Advocate,
appearing for the appellant trust contended that CIDCO is a statutory authority
and an instrumentality of the 'State'. Every action of CIDCO must, therefore,
be in conformity with Article 14 of the Constitution. It is also submitted that
the land had been allotted to the trust for educational purposes and disputed
land was allotted for construction of quarters for employees of Jawaharlal Nehru Engineering College and possession was handed over to the trust. Since no
actual measurement was carried out, the appellant trust requested CIDCO to
measure the area through its officers. It was legal and reasonable demand of
of complying with the request, CIDCO took undue advantage of the situation. It
is contended that there was no allotment for residential quarters and the
appellant had 'entered the land illegally and unlawfully.' The counsel
submitted that apart from the allotment letters, lease deed and conduct of the
parties, it is clear that land had been allotted for specific purpose of
construction of staff quarters and it was clear from payment of Rs. five lakhs
by appellant to CIDCO. It was, therefore, not open to CIDCO to contend that no
such allotment was made to the appellant-trust. In any case, at the time of
admission and hearing of Special Leave Petition in this Court, the trust had
shown its readiness and willingness to pay the price of land admeasuring 2.47
H. allotted to the trust and furnished even bank guarantee alongwith the
undertaking in due compliance with the statement made at the time of hearing.
It was, therefore, submitted that this is a fit case for grant of prayer and
the appeal, therefore, may be allowed.
learned counsel for the Respondents, on the other hand, supported the order
passed by the High Court. It is submitted that no doubt some land was allotted
to the trust for specific purposes. Appropriate decisions were taken and
agreements/deeds were executed in respect of the said land. So far as the
allotment of land for construction of staff quarters is concerned, neither an
agreement nor deed was executed. No possession at any point of time was given
to the trust. The trust unauthorisedly and illegally, by taking law in its
hands, entered into possession of some land belonged to CIDCO which was clearly
improper and illegal. CIDCO therefore, was constrained to issue letter of
cancellation which action was legal and lawful. In 1996, the appellant was
aware of the fact that no such allotment was made and hence did not take any
action immediately. It was only after two years that a petition was filed in
the High Court. The counsel stated that even in respect of lands which have
been legally allotted to the trust, full payment has not been made so far. Even
today, certain amounts are due and payable to CIDCO. The trust in the
circumstances cannot ask for any equitable relief.
heard the learned counsel for the parties, in our opinion, it cannot be said
that by dismissing the petition, the High Court has committed any error of law
or of jurisdiction which deserves interference by us.
of the learned counsel for CIDCO deserves acceptance that CIDCO is a statutory
authority and when such authority makes allotment and hands over possession of
immovable property, such an action would be in writing. There would be an
agreement, allotment letter, deed, panchnama of taking over and handing over
possession of the land to parties showing in measurement etc.. The High Court,
in our opinion, rightly observed that the trust was not in a position to show
any document whatsoever as to on what basis it was claiming right over the land
admeasuring 2.47 H. said to have been granted by CIDCO for construction of
staff quarters. The High Court noted that though it was the case of the trust
that possession of the disputed land was handed over by the officers of CIDCO,
no material in support of such assertion had been produced in the Court. On the
contrary, all throughout the case of CIDCO was that though for other purposes,
land was allotted and possession was handed over to the trust, for construction
of staff quarters no such agreement was made. Obviously, in such a situation,
there would not be any deed between the parties, or panchnama for handing over
possession by CIDCO and taking over possession by trust. In the affidavit in
reply filed before the High Court, it was specifically contended by CIDCO that
no possession of land was given by CIDCO to trust.
this Court also, the contentions raised by CIDCO before the High Court were
reiterated. Regarding the offer and willingness of the trust to pay the amount
for the land and statement and undertaking given before this Court and
furnishing of bank guarantee, the Administrative Officer of CIDCO has filed an
affidavit. In the said affidavit, it was stated that CIDCO is not in a position
to accept the offer made by the appellant. The deponent has given several
grounds to justify refusal to grant land to the trust.
It is stated
say that now accepting the premium will not only be against the policy adopted
by the CIDCO but also suffer a huge financial loss, and also the residents of
the New Town Aurangabad will be sufferer as the said amount will be utilized
for the development of the New Town and to provide various facility.
that the fact that the land in question was worth Rs.3,27,27,500/- in the year
1996, as the CIDCO charged premium for residential purposes i.e. at the rate of
Rs.1325/- per square meter." I say that by the time when the
affidavit-in-reply was filed in the writ petition before the Honourable High
Court, the base rate was Rs. 2300/- per square meter and the total value of the
land was worth Rs. 5,68,10,000/-. I say that at present the base rate is Rs.
3450/- per square meter and the land is now worth Rs. 8,52,15,000/-." From
the facts and circumstances and from the affidavit filed in the High Court,
findings recorded by the High Court and also the counter affidavit filed in
this Court, it is clear that the possession of land was never given to the
trust. No agreement was entered into between the parties, no deed was executed,
no possession was given by CIDCO to the appellant and the appellant illegally
and unlawfully and in high handed manner entered into the land belonged to
CIDCO. After such illegal act and entering into unlawful possession of the
property, it asked CIDCO to get the measurement of land done for which no
payment was made by the trust.
an action by a charitable trust would be simply improper as also unlawful. When
called upon to produce evidence or material to show as to on what basis the
trust contended that the land was allotted by CIDCO and as to how the trust
came into possession of the disputed land, except a bald statement by the trust
that the officers of CIDCO handed over possession to the trust, no material
whatsoever had been produced in the Court on the basis of which possession of
trust could be said to be lawful. The High Court, in the circumstances, was
wholly justified in not proceeding on unfounded assertion of the trust and in
dismissing the petition.
the willingness and readiness of the trust to purchase the land is concerned,
in our opinion CIDCO is right in objecting such prayer on the grounds mentioned
in the counter affidavit filed in this Court. CIDCO is a statutory public authority.
It cannot be asked to dispose of land otherwise than in accordance with
statutory provisions and guidelines/norms adopted by such authority and at the
cost of public exchequer.
deponent has stated in the said affidavit that if the land is disposed of as
per the practice of CIDCO, it would fetch substantially high amount. It is also
the case of CIDCO that full and final payment of land allotted to the appellant
before about twenty years has not been made so far.
in view the facts and circumstances, legal position and also equitable aspect
of the matter, in our opinion, this is not a fit case to exercise equitable
jurisdiction under Article 136 of the Constitution in favour of the appellant.
the forgoing reasons, no case has been made out by the appellant for
interference with the order passed by the High Court and appeal deserves to be
dismissed, and is dismissed accordingly. In the facts and circumstances of the
case, however, there is no order as to costs.
learned counsel for the appellant stated that the appellant trust is still
ready and willing to apply to CIDCO for grant of land. The learned counsel for
CIDCO stated that his client is not willing to accept the prayer of the
appellant. We make it clear that we are not expressing any opinion on that
point. In our view, the order passed by the High Court does not suffer from
infirmity or illegality and hence, the appeal is dismissed.