City & Industrial
Devt.Corp. Vs. Dosu Aardeshir Bhiwandiwala & Ors.  INSC 1945 (14
JURISDICTION CIVIL APPEAL NO. 6652 OF 2008 (Arising out of SLP(c) No. 23385 of
2007) City and Industrial Development Corporation ...Appellant Versus Dosu
Aardeshir Bhiwandiwala & Ors. ...Respondent With CIVIL APPEAL NO. 6653 OF
2008 [Arising out of SLP(c) No. 27475 of 2008 (CC No. 2044/08)]
condoned in SLP(c) No. ____ of 2008 (CC No. 2044/08).
20.04.2005 the first respondent herein filed a writ petition claiming the
"A) The impugned
action of using the land without acquisition is unconstitutional and contrary
to the provisions of Article 300-A of the Constitution of India. No state of
any Authority of the State is entitled to deprive any citizen of India is
property without following due process of law and without acquiring such
property in accordance with law.
Since the land in
question is being used for CIDCO without payment of any compensation or without
acquiring the same, the entire action is illegal.
B) The respondent no.
1 is being a corporation owned by the respondent no. 2 is not expected to usurp
and illegally take over private land owned by the said Trust of which the
petitioner is a Trustee. For such unauthorized user, the respondent no. 1 is
liable to pay compensation to the Trust.
C). In the alternative,
if the respondent no. 1 is not in a position to return the land, it is liable
to allot alternate land to the Trust on freehold tenure."
appellant herein and as well as the State of Maharashtra through its Secretary
to the Ministry of Revenue and the Collector, Raigad have been impleaded as
party respondents in the said Writ Petition. The first respondent/writ
petitioner claims to be one of the Trustees of Sir Khan Bahadur Hormasji
Bhiwandiwala Trust (hereinafter referred to as `the said Trust') and the writ
petition itself has been filed in his capacity as Trustee. The first respondent
in his writ petition pleaded that the said Trust is the owner of land bearing
Gat No. 8/0 of village Belpada, Taluka Panvel, District Raigad admeasuring 19
Acres 26.4 gunthas which presently bears Survey No. 465 of village Kharghar
Taluka Panvel, District Raigad admeasuring 9 Hectors 96 Aars. The entries in
the revenue records according to him disclose the ownership of the said Trust
in respect of the land in 4 question. For the purposes of implementation of
New Bombay Project vast extent of lands from Panvel Taluka of Raigad district
and Thane district were acquired in the year 1972 or thereabout but so far as
the land in question is concerned the Trust continued to be the owner since the
same were not acquired by the Government at any point of time.
complaint in the writ petition was "that the CIDCO has been illegally and
unauthorisedly using the said land without acquiring the same or without paying
any compensation thereof." Reliance in this regard was placed upon
internal correspondence between CIDCO and Government of Maharashtra and the
Collector, Raigad. He is stated to have sent a representation dated 16.8.2004
to Tehsildar requiring the Tehsildar to record his name as an "heir".
Having failed to receive any response from the concerned authorities he filed
the 5 writ petition in the High Court of Bombay. The summum bonum of the case
set up by the first respondent in the writ petition was that the appellant herein
used the said land without acquiring the same depriving the Trust of its
ownership and possession of the land.
appellant herein filed its affidavit in reply opposing the admission of the
writ petition in the High Court. In the reply affidavit the appellant inter
alia pleaded that the writ petitioner has kept silent for more than 35 years
and has chosen to file the writ petition with inordinate delay which itself
constitutes a ground to dismiss the writ petition summarily. It was also
pleaded that several disputed questions of facts are involved which cannot be
satisfactorily adjudicated in a proceeding under Article 226 of the
Constitution of India.
In para 11 of the
said reply affidavit the appellant took the plea that the land is required for the
Navi Mumbai 6 Project. The land continued to be in its possession for the last
more than 35 years. However, having taken those pleas it was also stated in the
affidavit that the CIDCO "has come to know from the Government letter that
this is a private land and since it is a private land, in possession of CIDCO
and is required for the Navi Mumbai Project, the CIDCO is requesting to (sic;)
the Government to acquire it by following due process of law."
State of Maharashtra and the Collector Raigad not only failed to file their
reply affidavits but their officers who were present in the court instructed
the learned A.G.P., who in turn made an oral statement which is para phrased by
the High Court in its judgment to the effect "the learned A.G.P. Mr. Malvankar
on instructions from Mrs. Revathi A. Gaikar, Special Land Acquisition Officer,
Panvel and Mr. M.N. Sanap, 7 Tahsildar, Panvel who are present in the court
makes a statement that on consideration of the documents in their possession
that except for 93 Ars they have no documentary evidence to show that rest of
the land was acquired."
High Court relying upon the oral statement made by the learned A.G.P. and the
reply affidavit of the appellant disposed of the Writ Petition directing
Collector, Raigad to take steps to acquire the land by following due procedure
and complete the acquisition proceedings within one year of receiving the
requisition from the appellant. The question as to whether the first
respondent/writ petitioner was entitled to payment of any compensation from the
appellant for occupation of the land for over a period of 35 years was left
open to be agitated in appropriate proceedings.
by the order passed by the High Court dated 07.02.2006 the appellant filed
Special Leave Petition (c) No. ..../2007 (CC 2080/2007) but withdrew the same
with the permission to move in review before the High Court. This Court vide
order dated 08.03.2007 dismissed the Special leave Petition as withdrawn.
petition was filed on various grounds which was also dismissed vide order dated
Hence these appeals
by special leave.
Ranjit Kumar, learned senior counsel appearing on behalf of the appellant
strenuously contended that the High Court ought to have summarily dismissed the
writ petition on the ground of laches and delay in as much as the
respondent/writ petitioner approached the court after a period of more than 35
years of loosing possession of the land. It was also submitted that number of
disputed questions concerning the title of the 9 land in question arise for
consideration which cannot be decided in a proceeding under Article 226 of the
Constitution of India. The learned counsel further contended that the first
respondent is guilty of suppression of material facts which itself is
sufficient to dismiss the writ petition. It was submitted that the respondent
was not the owner of the land at any point of time and therefore no relief
could have been granted in the Writ Petition.
R.F. Nariman, learned senior counsel appearing on behalf of the respondent
contended that there is no dispute as regards the title of the respondent
inasmuch as State of Maharashtra and District Collector through their officers
made a statement in the open court that the land in question was not earlier
acquired and the same continued to be a private land. Shri Nariman also relied
on the averments made by the appellant herein in 1 0 the reply affidavit
opposing the writ petition in the High Court stating that CIDCO has come to know
from the Government letter that the land is a private land and therefore, it
had requested the Government to acquire the land by following the due process
have carefully considered the rival submissions.
High Court in its decision appears to have mostly relied upon the oral
statement made through the learned A.G.P. and also some vague averments made by
the appellant in its reply affidavit and accordingly disposed of the Writ
Petition directing the acquisition of the land. The High Court did not consider
as to what is the effect of the said oral statement and the averments made by
the appellant in its reply affidavit. Whether such an oral statement coupled
with the averments made to the effect that the land is a private land by 1 1
themselves would amount to recognising the title of the respondent? The fact
remains that there is no whisper in the impugned order that Sir Khan Bahadur
Hormasji Bhiwandiwala Trust continued to be the true and absolute owner of the
land possessing valid and subsisting title as on the date of the filing of the
writ petition. Nor there is any finding by the High Court as regards the nature
of the land which is one of the most important factor that may have a vital
bearing on the issue as to the entitlement of the respondent to get any relief
in the writ petition. There is also no finding that the writ petitioner who
filed the Writ Petition as an individual is the trustee of the said trust and
thus entitled to prosecute the litigation on behalf of the trust.
The High Court did
not consider as to what is the effect of filing of the Writ Petition claiming
to be a trustee without impleading the trust as the petitioner. The High Court
ignored the statement made by the respondent in 1 2 his Writ Petition about
his representation to Tehsildar requiring to record his name as an
"heir". How can an individual's name be recorded in the revenue
records to be an "heir" of a trust property? The High Court never
considered the effect of such a statement made by the writ petitioner in the
writ petition itself. The High Court also did not consider whether the reliefs
claimed could at all be granted in a public law remedy under Article 226 of the
Constitution of India.
High Court obviously relied upon the oral statement purported to have been made
by the officers present in the court through the learned A.G.P. and considered
the same to be concession as regards the title/ownership of the land in
question. The appellant in its reply affidavit merely referred to a letter
received by it from the Government informing it the land in question to be a
private land. We fail to appreciate as to how the said statement and the
averments made in the reply 1 3 affidavit amount to concession recognising the
title/ownership of the land in question in favour of the respondent. Such a
statement by itself cannot confer title in respect of immovable properties on
any individual. The courts are not relieved of their burden to weigh and evaluate
the relevancy and effect of such statements in adjudicating the lis between the
Writ petition was filed on 20th April, 2005 but whereas the petitioner executed
the Deed of Confirmation on 13th April, 2005 describing himself as vendor in
favour of Ms. Hemlata Bedi and Urmish Udani as the purchasers of the land in
question. The appellant in its review application filed in the High Court
pointed out that as on the date of the filing of the Writ Petition the first
respondent was not the owner of the land in as much as he executed the Deed of
Confirmation on 13th April, 2005 itself. When the 1 4 appellant pointed out
this in its review application the High Court brushed aside the same and
dismissed the Review Petition relying on the explanation offered by the writ
petitioner that the writ petition was drafted much earlier to 13th April, 2005
for filing in the court on 20th April, 2005. The fact remains that the
respondent never brought this fact on record during the pendency of the writ petition.
The High Court ought to have considered whether there was any suppression of
material facts from the court. The High Court did not consider the effect of
respondent describing himself as the vendor in the Confirmation Deed which is
not in tune with the recitals in the Deed of Conveyance dated 26th August,
1982. The High Court did not address to itself as to whether such complex and
disputed facts could be satisfactorily adjudicated in a proceeding under
Article 226 of the Constitution. The Court was carried away by the fact that
the relief had already been granted 1 5 inasmuch as the acquisition
proceedings have commenced after the disposal of the Writ Petition. We are
constrained to express our reservation about the manner and approach of the
High Court in disposing of the Writ Petition and the Review Petition.
our view, the High Court ought to have examined the contents of Deed of
Confirmation as well as the Deed of Conveyance dated 26th August, 1982 before
granting the relief as prayed for by the respondent. It is plainly evident from
the Deed of Conveyance dated 26th August, 1982 that it was executed in favour
of only one person namely Ms. Hemlata Bedi as the purchaser whereas in the Deed
of Confirmation the name of Urmish Udani is also shown as the purchaser along
with Ms. Hemlata Bedi. It is not clear from the document as to how all of a
sudden Urmish Udani's name is shown as the purchaser. The 1 6 circumstances
may lend credence to the submission made by learned senior counsel for the
appellant that Urmish Udani did not purchase the land but the litigation.
However, we do not wish to express any conclusive opinion on the question as to
whether the parties are indulging in any speculative litigation. These are the
aspects which ought to have been taken into consideration by the High Court
before granting relief to the respondent.
In the absence of
finding on the vital issue noticed herein above no relief could have been
granted to the respondent.
regard to the magnitude and complexity of the case the High Court in all
fairness ought to have directed the official respondents to file their detailed
counter affidavits and produce the entire material and the records in their
possession for its consideration. Be 1 7 it noted the reply affidavit filed by
the appellant herein obviously was confined to opposing the admission of writ
petition. The writ petition was disposed of at the admission stage, of course
after issuing Rule as is evident from the order : "Rule. Heard
are constrained to confess the case has left us perplexed. The stance adopted
by the State of Maharashtra and the District Collector is stranger than
fiction. It is difficult to discern as to why they remained silent spectators
without effectively participating in the proceedings before the Court. No
explanation is forth coming as to why they have chosen not to file their
replies to the Writ Petition in the High Court. However, in these appeals the
State Government as well as the appellant filed detailed affidavits disputing
each and every statement and assertion of the writ petitioner made in the Writ
Petition opposing grant of any relief 1 8 whatsoever to the writ petitioner.
But even in this court the State of Maharashtra having filed its affidavit did
not participate in the proceedings and rendered any assistance in the matter.
is well settled and needs no restatement at our hands that under Article 226 of
the Constitution, the jurisdiction of a High Court to issue appropriate writs
particularly a writ of Mandamus is highly discretionary.
The relief cannot be
claimed as of right. One of the grounds for refusing relief is that the person
approaching the High Court is guilty of unexplained delay and the laches.
Inordinate delay in moving the court for a Writ is an adequate ground for
refusing a Writ. The principle is that courts exercising public law
jurisdiction do not encourage agitation of stale claims and exhuming matters
where the rights of third parties may have accrued in the interregnum.
appellant in its reply opposing the admission of Writ Petition in clear and
categorical terms pleaded that the writ petitioner has kept silent for more
than 35 years and filed belated writ petition. It was asserted that on account
of inordinate delay and laches the writ petition suffers from legal infirmities
and therefore liable to be rejected in limine. The High Court did not record
any finding whatsoever and ignored such a plea of far reaching consequence.
noticed hereinabove the High Court obviously was impressed by the oral
statement made during the course of the hearing of the writ petition and some
vague and self defeating averments made in the affidavit filed by the appellant
in the High Court.
our opinion, the High Court while exercising its extraordinary jurisdiction
under Article 226 of the 2 0 Constitution is duty bound to take all the
relevant facts and circumstances into consideration and decide for itself even
in the absence of proper affidavits from the State and its instrumentalities as
to whether any case at all is made out requiring its interference on the basis
of the material made available on record. There is nothing like issuing an
ex-parte writ of Mandamus, order or direction in a public law remedy. Further,
while considering validity of impugned action or inaction the court will not
consider itself restricted to the pleadings of the State but would be free to
satisfy itself whether any case as such is made out by a person invoking its
extra ordinary jurisdiction under Article 226 of the Constitution. The court
while exercising its jurisdiction under Article 226 is duty bound to consider
(a) adjudication of
writ petition involves any complex and disputed questions of facts and whether
they can be satisfactorily resolved;
(b) petition reveals
all material facts;
(c) the petitioner
has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking
the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred
by any laws of Limitation;
(f) grant of relief
is against public policy or barred by any valid law; and host of other factors.
The court in
appropriate cases in its discretion may direct the State or its
instrumentalities as the case may be to file proper affidavits placing all the
relevant facts truly and accurately for the consideration of the court and
particularly in cases where public revenue and public interest are involved.
Such directions always are required to be complied with by the State. No relief
could be granted in a public law remedy as a matter of course only on the
ground that the State did not file its counter affidavit opposing the writ
petition. Further, 2 2 empty and self-defeating affidavits or statements of
Government spokesmen by themselves do not form basis to grant any relief to a
person in a public remedy to which he is not otherwise entitled to in law.
of these parameters have been kept in view by the High Court while disposing of
the Writ Petition and the Review Petition.
the aforesaid reasons, we set aside the impugned orders and remit the matter
for fresh consideration by the High Court on merits.
Consequently, all the
notifications issued under the provisions of the Land Acquisition Act, 1894
including the award passed and the reference made to the Civil Court are set
the course of hearing of these appeals not only affidavits and additional
affidavits but also some documents which may have a vital bearing on the merits
of the case are placed on record. These affidavits and the documents filed into
this court shall form part of the writ proceedings. The matter requires fresh
consideration by the High Court.
are given liberty to supplement their respective pleadings if they so choose
and file additional documents, if any, which shall be received by the High
Court for its consideration. We may hasten to add that we have not expressed
any opinion on the merits of the case. All the contentions of both sides are
expressly kept open for their determination by the High Court.
will not be appropriate to dispose of the matter without one word about the
conduct of the State 2 4 Government reflecting highly unsatisfactory state of
affairs. We express our grave concern as to the manner in which State has
conducted in this case. It is the constitutional obligation and duty of the
State to place true and relevant facts by filing proper affidavits enabling the
court to discharge its constitutional duties.
The State and other
authorities are bound to produce the complete records relating to the case once
Rule is issued by the court. It is needless to remind the Governments that they
do not enjoy the same amount of discretion as that of a private party even in
the matter of conduct of litigation. The Governments do not enjoy any unlimited
discretion in this regard. No one need to remind the State that they represent
the collective will of the society.
State in the present case instead of filing its affidavit through higher
officers of the Government utilised the lower ones to make oral statements and
that too through its A.G.P. in the High Court. This malady requires immediate
remedy. We hope the Government shall conduct itself in a responsible manner and
assist the High Court by placing the true and relevant facts by filing a proper
affidavit and documents that may be available with it. We also hope and trust
that the Legal Advisors of the Government will display greater competence and
attention in drafting affidavits.
Let not the fence eat
29. With these
observations, we allow the appeals accordingly.
(B. Sudershan Reddy)
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