IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE 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)]

J U D G M E N T  

B.SUDERSHAN REDDY,J.

1. Delay condoned in SLP(c) No.   ____ of 2008 (CC No.

2044/08).

2. Leave granted.  

3.  On 20.04.2005 the first respondent herein filed

a writ petition claiming the following reliefs:  

“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.”

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4. The 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

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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.  

5. The  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

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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.  

6. The  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

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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.”

7.    The  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,

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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.”  

8. The  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.

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9. Aggrieved 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.

Thereafter review petition was filed on various grounds

which was also dismissed vide order dated 10.08.2007.  

Hence these appeals by special leave.

10. Shri 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

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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.

11. Shri 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

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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 of law.  

12. We have carefully considered the rival submissions.  

13.   The 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

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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

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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.   

14.    The  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

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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 parties.  

15.   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

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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

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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.   

16.    In  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

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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.  

17. Having 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

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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 forthwith….”  

18. We 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

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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.   

19.   It 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.

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20. The  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.

21. As  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.

22.  In our opinion, the High Court while exercising its

extraordinary  jurisdiction  under  Article  226  of  the

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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 whether :

(a)  adjudication  of  writ  petition  involves  any  complex

and disputed questions of facts and whether they

can be satisfactorily resolved;

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(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,

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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.

23.  None of these parameters have been kept in view

by the High Court while disposing of the Writ Petition

and the Review Petition.

24.   For  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 aside.

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25.  During 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.

26.    Parties  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.

27.  It will not be appropriate to dispose of the matter

without  one  word  about  the  conduct  of  the  State

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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.   

28.  The State  in the present case instead of filing its

affidavit  through  higher  officers  of  the  Government

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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 the grass.

29. With these observations, we allow the appeals

accordingly.  

……………………………………J.           (S.H. Kapadia)

……………………………………J.      (B. Sudershan Reddy)

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New Delhi;  November 14, 2008  

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