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PETITIONER: STATE OF MAHARASHTRA & ORS.

       Vs.

RESPONDENT: PANDURANG K. PANGARE & ORS.

DATE OF JUDGMENT13/02/1995

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SINGH N.P. (J)

CITATION:  1995 AIR 1202            1995 SCC  Supl.  (2) 119  JT 1995 (2)   334        1995 SCALE  (1)679

ACT:

HEADNOTE:

JUDGMENT: 1. These are two applications filed by Maharashtra and  Area Develop- 335 ment Authority (in brief ’MHADA’)-one for taking proceedings for  contempt  against the opposite parties  and  other  for initiating proceedings for perjury against Shri P.K. Pangare (referred  in brief as ’Pangare’), the respondent in  S.L.P. and opposite party No. 1 in the contempt petition., 2.   Before adverting to these applications it is  necessary to   mention  in  brief  the  background  in   which   these applications  came  to  be filed.  On 12th  January  1980  a Notification   was  issued  under  Section  41(3)   of   the Maharashtra Housing and Area Development Act, 1976 (referred as  ’the  Act’) by the Deputy Secretary of  the  Government, Housing  and  Special Assistant  Department,  Government  of Maharashtra whereby it was notified that the lands mentioned in the Schedule vested in the Government of Maharashtra.  In pursuance  of this Notification name of A was  mutated  over survey no. 18.  The acquisition was challenged by the owner, Pangare  by Writ Petition No.3585 of 1981 on  12th  November 1981.   It  was allowed on 8th November 1983  following  the judgment rendered in Writ Petition No.4192 of 1981 by  which sub-sections  (3) and (4) of Section 44 of the Act had  been struck down as ultra vires.  The State filed S.L.P. in  this Court  against  the decision in the main writ  petition  and other  writ  petitions including the one  filed  by  Pangare which  was numbered as S.L.P. No.3340 of 1984.   Notice  was issued  on it but no interim order was granted.  The  S.L.P. filed  by one Basantibai was allowed in 1986.  The  judgment and order of the High Court was reversed.  It was held  that Section  44 of the Act did not suffer from  any  invalidity. The  S.L.P. filed against Pangare was however  dismissed  on 18th  April 1991.  On 4th December 1992 an  application  was filed on behalf of the State seeking review of the Order  as the  Order was passed under misapprehension.  It was  stated

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that  at  the time of argument it was urged by  the  learned counsel  for the State of Maharashtra that  the  controversy raised in the petition stood concluded by a decision of this Court which fact was noticed in the Order, yet by mistake in the  operative portion it was mentioned that the  S.L.P.  is dismissed.  It was served on Pangare on 7th April 1993.  The Order was recalled on 3rd September 1993. 3.   What happened in the meantime that Pangare applied  for mutation of his name     in the revenue records.  Notice  of it  appears to have been served on A. But it is  averred  it did  not file any reply nor any one appeared.   Consequently the  application was allowed and the name of A was  directed to  be  deleted and an order was passed directing  that  the name of Pangare be entered in the revenue records.   Pangare sold  portion  of Survey No. 18 to one  Mohd.   Shafi  Abdul Wahab  Shaikh.   The said Shaikh in 1990  obtained  sanction from  the Municipal Council for layout plan and  sub-divided the  area  purchased by him into 7  sub-plots  for  building purposes.   In January 1992 Shaikh sold all the 7  plots  by separate  conveyance  to one Shri S.R. Gupta and  six  other persons.   In  October  1992 the  revised  layout  plan  was sanctioned  by  the  Municipal  Council  and  the  plan  was sanctioned  in  respect  of the  said  plots.   Commencement certificate was also issued.  Between January to March  1993 plot  nos.  1 to 6 of Survey No. 18 were sold in  favour  of M/s.  Volition Investments Pvt.  Ltd. (hereinafter  referred to as ’VEPL’) by separate deeds of conveyance. 336 4.   When  notice of review was served on Pangare  he  filed reply  to  the  affidavit filed in  support  of  the  review application  on 27th July 1993.  It was stated by  him  that even  though the writ petition had been allowed, but  MHADA. had not challenged the Order passed by the High Court by way of  S.L.P. Therefore, it had no locus standi to file  review petition.  It was stated when his name was mutated over  the land   he  sold  it  in  favour  of  Shaikh  for   a   total consideration  of  Rs.8 lacs.  The said  Shaikh  had  issued Public  Notice  in the local Lonawala Times  indicating  his intention  to  purchase the property, but no  objection  was filed.  Not only that he submitted a revised layout building plan to the Municipal Authorities which was sanctioned.  The same  procedure  was repeated by Shri S.R. Gupta  (in  brief ’Gupta’) when he purchased the land.  It was further  stated that  when plan was sent by Gupta to Municipal  Authorities, notice  was given to A but no objection was filed.   Notices are  stated  to have been got published even by  VIPL  after agreement  was  entered  between Gupta  and  VIPL.   In  the Rejoinder  Affidavit  filed  in October 1993  by  Shri  S.V. Bapat,  Assistant Engineer, in reply to the affidavit  filed by  the  respondent on 21st September 1993 and  1st  October 1993,  it is not denied that the MHADA did not  receive  any notice  when Pangare applied for change of mutation  of  his name over the land in dispute.  What has been stated is that A  became  aware sometime in April 1992 of the  proposal  to erect  multi-storeyed  building  on the  site  and  then  it addressed  a  letter  to  the  Lonawala  Municipal   Council pointing out specifically that the S.L.P. filed by the State was  pending  and  that  no  building  activity  should   be permitted  to  be carried on on the land by  any  one.   But according  to  its  own  affidavit  the  Lonawala  Municipal Council  did not act in accordance with the said  reasonable request   and   proceeded  straightaway  to   sanction   the respondent’s  building plan and also to  issue  commencement certificate  in October 1992.  It has been stated that  this was done by the Municipal Council because Gupta to whom  the

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land was sold is a builder and his brother was Councilor  of the  Lonawala Municipal Council.  It is further stated  that in  March, 1993 A had issued a letter to the Tehsildar  that no mutation should be done and it even issued an  advertise- ment  in May 1993 calling upon persons not to  purchase  any flat  or to advance any amount for purchase of flat  as  the building was being constructed illegally. 5.   When  S.L.P. was listed on 17th September 1993  it  was brought to the notice of this Court by the A which had  come on  the scene by now, that the respondents were carrying  on construction  over  the land in dispute.  The  petition  was directed  to be listed on 24th September 1993 and  an  order was  passed that in the meanwhile there will be  no  further construction.   When  the  matter  was  taken  up  on   24th September  1993 it was stated by the learned counsel  for  A that  the  construction  activity was  going  on  which  was vehemently  opposed  by  the other side.   However,  on  the request  of the learned counsel the petition was  adjourned. Since  both parties were vehemently refuting allegations  of each  other,  on 15th October 1993 this Court  directed  the Principal  District  Judge  to make a  spot  inspection  and submit  a, report if any construction was being carried  on. Inspection was made on 22nd October 1993.  It was found that construction  work  was  going on in Survey  No.  18/2.   An affidavit was filed by Pangare 337 denying that any construction activity was being carried  on on the land in dispute.  When the petition was listed  again on  26th  November 1993 the application filed by  MHADA  for impleadment  was allowed and the contempt petition filed  by it was taken on Board.  Notice was directed to be issued  on it.   The  application purported to be  against  Pangare  as opposite party no. 1, Gupta as opposite party no.2 and  four other  persons as Chief Promoters of VIPL.  In  response  to this  notice  reply was filed by Gupta stating that  he  had already  sold  the  plot  and he was  not  making  any  con- struction,  therefore,  the  contempt  proceedings  may   be discharged.  Affidavits were also filed by the alleged chief promoters  of VIPL stating that they had nothing to do  with VIPL  and  one Harakchand Nagindas Shah, Director.   In  the circumstances  the notices issued against Gupta  and  others were  discharged  on  24th  October  1994.   The  MHADA  was permitted  to implead Harakchand Nagindas Shah, Director  of VIPL as opposite party no. 3. Notice was issued to Shri Shah in reply to which he has filed detailed affidavit. 6.   A  filed  an  application  for  taking  proceedings  in perjury  against Pangare as he was  deliberately  misleading the   Court   by  suppressing  facts   and   making   untrue allegations.   In reply Pangare filed an  affidavit  denying the allegations and reiterating what was said by him in  his earlier affidavits. 7.   We  shall take up the contempt application first.   The order  prohibiting any construction to be, raised  over  the land  in  dispute was passed on 17th  September  1993.   The question  is whether this order was violated by  any  person and if so its effect From the facts stated above it is clear the  Pangare had sold his interest and  clear  that  Pangare had  sold his interest and it was ultimately VIPL  in  whose favour the property was transferred sometime between January and  March  1993.   It further  appears  that  this  company started  construction in June and July 1993.  But  the  con- tempt application was filed against Pangare, Gupta and  four other persons alleged to be Chief Promoters of the VIPL.  It has  been mentioned earlier that in view of  the  affidavits filed   by  them  the  notices  issued  against  them   were

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discharged.   Shri Shah, the Director of VIPL was  impleaded in  October 1994 only.  Since the day he was  impleaded  and received  the notice which was served on his counsel on  the same day in the Court no construction has been carried on in the   land   in  dispute.   Therefore,   even   though   the construction had been started by VIPL in June and July  1993 and  it was continued by it even after the order was  passed by this Court as stands established by the affidavits  filed by the officials of A and the report of Additional  District Judge,  yet Shri Shah being not a party and the  notice  for contempt  having not been served either on Shri Shah  or  on VIPL  before November 1994, no proceedings for contempt  can be taken against him.  There is thus no option but to reject the contempt application against Shri Shah. 8.       As  regards the application for  per-jury  we  must confess that we had been baffled by the conduct of Pang=  as even though he had sold the property in favour of Shaikh who in  its  turn sold it in favour of Gupta and  it  ultimately came  to VIPL yet it was Pangare who was not only  appearing in  this  Court  but was assuring through  his  counsel  and contesting that no construction was going on on the plot  in dispute.  The explanation of the learned                             338 counsel appearing for VIPL that Pangare filed his  affidavit because  a  portion  was still in  his  possession,  is  not convincing.   In  fact  on  17th  September  1993  and  24th September  1993  it  was Pangare’s  counsel  who  vehemently challenged  the statement made on behalf of MHADA  that  any construction was going on.  He has in his affidavit filed in reply  to perjury, attempted to whittle down the  report  of the  Additional District Judge by saying that it  does  riot indicate  that construction was going on. Since Pangare  had sold the property and he was not making any construction  on the  portion  which  was  in his  occupation  there  was  no occasion  for  him to make such statement which was  apt  to mislead  the  Court.  Technically speaking he may  be  right that  he was not making any construction.  But factually  he was wrong as construction activity was going on in the plot. He  may  not  be guilty of contempt or perjury  but  he  was certainly  unfair to the Court.  It is not necessary to  say anything  further.   We do not propose to  take  any  action against him for perjury but we arc of opinion that he should be  directed  to pay a cost of Rs. 10,000/- which  shall  be deposited  by  him  within  one month  with  the  Legal  Aid Committee of this Court. 9.   This  disposes of the two applications filed by  MHADA. We may also express our displeasure with the casualness with which  MHADA  has dealt with the matter.  In  the  affidavit filed  by  Pangare a.-id Shah it is stated that  when  Gupta purchased  the  land he not only notified it but  even  sent intimation  to the MHADA.  That was in 1988.  Even the  VIPL when  it  entered into an agreement of sale  with  Gupta  is stated to have intimated the A in 1992.  But they slept over the matter.  No reply has been filed in this Court  about the intimation and service of notice to  MHADA. Similarly we are also at pains to observe that the Municipal Council  despite  intimation  from MHADA in  1992  that  the dispute  in  respect of the plot no.18 was  pending  in  the Supreme  Court  chose to sanction the plan of  VIPL.   Since sufficient  material is not before us we are  directing  the Chairman of both MHADA and the Municipal Council to make  an enquiry into the authenticity of these allegations and if it is  true that MHADA was served in 1988 then why  no  officer appeared on its behalf and did not bring it to the notice of the  Mutation  Authority that dispute was  pending  in  this

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Court.   Similarly  we also direct the  Chairman,  Municipal Council  to look into the matter and to find out whether  it was  correct  as  stated by MHADA  in  its  affidavit.  that despite  intimation by it the Municipal  Council  sanctioned the  plan of VIPL.  If it is found to be true then both  the Authorities  are  directed  to  take  action  against   the, officials  concerned  and report compliance of  it  to  this Court within six months. 10.The learned counsel for VIPL vehemently prayed that  they may be permitted to complete the constructions.  The  prayer is  rejected.  We make it clear that VIPL shall  not  either itself  or through any other person or assignee,  raise  any further  construction  nor it shall carry  on  any  building activity  in  the  building till the disposal  of  the  writ petition by the High Court. 11.In  the  circumstances  of the case  indicated  above  we request  the  High  Court to decide  the  writ  petition  of Pangare  which stands transferred to it in view of  the  al- lowing  of the S.L.P., within a period of three months  from the  date  a copy of this order is produced in  that  Court. The Reg- 339 istrar  after production of the copy shall obtain orders  of Hon’ble  the  Chief Justice and get the case  listed  before appropriate Bench for disposal. 12. The two applications are disposed of accordingly. 340