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CASE NO.: Appeal (civil)  1466 of 2005

PETITIONER: Mahatma Gandhi Mission                                            

RESPONDENT: City & Industrial Development  Corporation Ltd. & Ors.   

DATE OF JUDGMENT: 16/09/2005

BENCH: S. B. SINHA & C. K. THAKKER

JUDGMENT: J U D G M E N T

C.K. Thakker, J.

       The 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.                  To appreciate the controversy raised in the appeal, few relevant facts  may be stated;         The 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 \026 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.

       The 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.           The land was allotted for the following purposes;  1)      Housing   scheme   for    employees          of  Jawaharlal   Nehru   Engineering          College : 2.47 Hectres : Rs. 90/- per sq. mtr.;   2)     Charitable Hospital   : 2 Hectres : Rs. 45/- per sq. mtr.;   3)    Stadium and Club site : 9.74 Hectres : Rs. 9/- per sq. mtr.

       It is 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

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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.  Ultimately, 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.   The 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 possession.   

       The 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.

       An 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.   It was 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.   The trust, therefore, was not entitled to any relief from the court.   

       The 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

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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.  The 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.

       When 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.   The 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.

       We 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 the trust.   Instead 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.

       Mr. Bhasme, 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

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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.

       Having 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.   Submission 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.

        In 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 :

                "I 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.

      I say 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

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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.    Such 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.

            So far 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.

          The 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.   Keeping 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.

       For 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.

         The 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.