Supreme Court of India
CITY AND INDUSTRIAL DEVELOPMENT CORPORATIONversusDOSU AARDESHIR BHIWANDIWALA & ORS.
- Citation
- 2008 INSC 1301
- Decided
- 14 November 2008
- Disposal
- Appeal(s) allowed
- Bench
- S H KAPADIA
Holding
The Supreme Court set aside the High Court's order and remitted the matter for fresh consideration, holding that the High Court failed to apply the proper parameters for exercising writ jurisdiction under Article 226.
Summary
The petitioners, City and Industrial Development Corporation (CIDCO), were directed by the Bombay High Court to acquire a 19‑acre tract of land claimed by the respondent, Dosu Aardeshir Bhiwandiwala, who alleged he was a trustee of the Bhiwandiwala Trust and that the land was private property. The High Court relied on an oral statement made by the Assistant Government Pleader and vague averments in CIDCO's reply affidavit, without a proper affidavit from the State, and ordered acquisition of the land. CIDCO appealed, arguing that the writ petition was filed after a 35‑year delay, that the petitioner lacked locus standi, and that the High Court failed to apply the parameters for exercising writ jurisdiction under Article 226. The Supreme Court held that the High Court erred in granting relief without proper factual findings, ignoring the delay, laches, and the need for a proper State affidavit, and therefore set aside the order. The matter was remitted to the High Court for fresh consideration, and all acquisition notifications were vacated.
Issues considered
- The High Court erred in granting a writ of mandamus based solely on oral statements and without a proper State affidavit.
- Whether the writ petition should be dismissed on the ground of inordinate delay and laches.
- Whether the petitioner, as a self‑styled trustee, had locus standi to sue on behalf of the Bhiwandiwala Trust without impleading the trust.
- Whether the land in question is private property and whether the trust holds a valid title.
- Whether the Supreme Court should set aside the High Court's order and remit the case for fresh consideration.
Legislation cited
Subjects
Article 226writ jurisdictionland acquisitiondelay and lachestrustee standingpublic law remedystate affidavitremand
Judgment
[2008] 16 S. C.R. 28
7
A CITY AND INDUSTRIAL DEVELOPMENT CORPORATION
v.
DOSU AARDESHIR BHIWANDIWALA & ORS.
(Civil Appeal No. 6652 of 2008)
NOVEMBER 14, 2008
B
[S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] +
'
Constitution of India, 1950 - Art. 226 - Dispensation of
writ petition - Dispute· pertaining to huge tract of land -
c Respondent No. 1, as trustee of the Bhiwandiwala Trust, laid·
claim to said land after prolonged delay of 35 years - He
filed writ petition contending that Appellant, an instrumentality
of the State, had been illegally and unauthorizedly using the
said land without acquiring the same or without paying
D compensation therefor.- High Court, in absence of a proper y
affidavit from the State Government and without coming to
any finding about entitlement of Respondent No. 1, directed
acquisition of the land by considering the oral submission of
the State's counsel as a concession recognising the title I
E ownership of the. land in question in favour of Respondent
No. 1 - Held: Matter remitted back to High Court for fresh
consideration since in its earlier verdict the High Court did
not keep in view the parameters of exercising its writ
jurisdiction under Art. ·226 of the Constitution - Conduct of
F State Government in not filing proper affidavit and in
remaining a silent spectator without effectively participating
in proceedings before the Coult, deprecated.
Dispute arose pertaining to a huge tract of land.
Respondent No.1; as a trustee of the Bhiwandiwala Trust,
G laid claim to the said land after prolonged delay of 35
years. He filed writ petition before the High Court
contending that Appellant, an instrumentality of the State,
had been illegally and unauthorizedly using the said land
H 28
CITY AND INDUS. DEVE. CORPN. v. DOSU 29
AARDESHIR BHIWANDIWALA & ORS.
without acquiring the same or without paying any A
compensation therefor.
The High Court, in absence of a proper affidavit from
the State Government and without coming to any finding
about the entitlement of Respondent No.1, directed
8
acquisition of the land by considering the oral
submission of the State's counsel as a concession
recognising the title I ownership of the land in question
in favour of Respondent No.1. Review petition against the
order was dismissed. Hence the present appeals.
c
Allowing the appeals with certain observations about
the conduct of the State Government, the Court
HELD: 1.1. The High Court mostly relied upon the
oral statement .made through the A.G.P. and also some 0
vague averments made by the appellant in its reply
affidavit to the effect that.the land in question is a private
land and accordingly disposed of t_he Writ Petition
directing the acquisition of the land. There is no whisper
in the impugned order of the High Court that the
Bhiwandiwala Trust continued to be the true and absolute E
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 F
of the respondent to get any relief in the writ petition.
There is also no finding that Respondent No.1 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 G
is the effect of filing of the Writ Petition by someone
claiming to be a trustee without impleading the trust as
the petitioner. The High Court ignored the statement
made by the respondent in his Writ Petition about his
representation to Tehsildar requiring to record his name H
30 SUPREME COURT REPORTS (2008] 16 S.C.R
A as an "heir". 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.
B [Para 13] [37-H; 38-A-G]
1.2. The High Court relied upon the oral statement
purported to have been made by the officers present in
the court through the A.G.P. and considered the same to
be concession as regards the title/ownership of the land
c 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. One.
fails to appreciate as to how the said statement and the . ·
averments made in the reply affidavit amount to
D concession recognisi~g the title/ownership of the land in
'(
question in favour ofthe 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
E effect of such statements in adjudicating the lis between
the parties. [Para 14f[38-H; 39-A-B]
1.3. The High Court ought to have considered
whether there was any suppression of material facts from
F the Court. 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.
[Paras 15 and 17] [39-F; 40-F]
G
2. The stance adopted by the State of Maharashtra
.i
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
H proceedings before the Court. No explanation is
CITY.AND1NDUS. DEVE. CORPN .. v. DOSU 31
AARDESHIR BHIWANDIWALA & ORS.
t forthcoming as to why they have chosen not to file their A
, replies to the.Writ Petition in the High Court. [Para 18) [41-
A]
3.1. Under Article 226 of the Constitution, the
jurisdiction of a High Court to issue appropriate writs
B
particularly a writ of Mandamus is highly discretionary.
f The relief cannot be claimed as of right. One of the
grounds for refusing reliefis that the person approaching
the High Court is guilty of unexplained delay and the
!aches. Inordinate delay in moving the court for a Writ is
an adequate ground for refusing a Writ. The principle is c
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. [Para 19] [41-D-E]
D
3.2. The High Court while exercising its extraordinary
jurisdiction under Article 226 of the 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 E
instrumentalities as to whether any case at all is made out
requiring its interference on the basis of the material
madf: available on record. There is nothing like issuing
an ex-pa rte writ of Mandamus; order or direction in a
public law remedy. Further, while considering validity of
F
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 G
; to consider whether : (a) adjudication of writ petition
involves any complex and disputed questions of facts
and whether they can be satisfactorily resolved; (b)
i petition reveals all material facts; (c) the petitioner has any
alternative or effective remedy for the resolution of the H
32 SUPREME COURT REPORTS [2008] 16 S.C.R.
A 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. [Para 22] [41-A, B, C, D, E, F; G]
B
3.3. 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~n cases where public revenue and
C public interest are involved. Such directions always are
required to be complied with by the State. No relief could
be granted in a publid law remedy as a matter of course
only on the ground triat the State did not file its counter
affidavit opposing the writ petition. Further, empty and
D self-defeating affidavits or statements of Government
spokesmen by thems~lves do not form basis to grant any
relief to a person in ~ public remedy to which he is not
otherwise entitled to in law. [Para 22] [42-H; 43-A-B]
E 3.4. None of th~se parameters have been kept in
view by the High court while disposing of the Writ
Petition and the Review Petition. For the aforesaid
reasons, the impugi;ied order of the High Court is set
aside and the.matter is remitted for fresh consideration
F 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. [Paras 23,
24] [43-C-D]
G 4.1. It will not be; appropriate to dispose of the matter
without one word; about the conduct of the State
Government reflecting highly unsatisfactory state of
affairs. This Court expresses its grave concern as to the :
manner in which State has conducted in this case. It is
H
CITY AND INDUS. DEVE. CORPN. v. DOSU 33
AARDESHIR BHIWANDIWALA & ORS.
1-
the constitutional obligation and duty of the State to place A
" true and relevant facts by filing proper affidavits enabling
the court to discharge its constitutional duties. The State
and <>~her 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 B
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 needs to remind the State that they
represent the collective will of the society. [Para 27] [43- c
H; 44-A-C]
4.2. The 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 D
requires immediate remedy. It is hoped that the
Government shall conduct itself in a responsible manner
... and assist the High Court by placing the true and relevant
;·;r
facts by filing a proper affidavit and documents that may
be available with it. [Para 28] f44-C-D] E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6652 of 2008.
From the final Judgment and Order dated 10.08.2007 of
the High Court of Judicature at Bombay in Review Petition F
Stamp No. 5407 of 2007.
WITH
Civil Appeal No. 6653 of 2008.
G
Ranjit Kumar and Shekhar Naphade, Sr. Advs., Brajesh
Pandey and AS. Bhasme for the Appellant.
R.F. Nariman, Sr. Adv., Kavin Gulati, Pravin Satale, Saurab
Mitra, Rajiv Shankar Dvivedi and Ravindra Keshavrao Adsure
for the Respondents. H
34 SUPREME COURT REPORTS [2008] 16 S.C.R.
..v
'
A The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J. 1. Delay condoned in
SLP(c) No. 27475 of 2008 (CC No. 2044/08).
2. Leave granted.·
8
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
c 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
D
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
..
F
the respondent n9. 2 is not expected to usurp and illegally
E take over private land owned by the said Trust of which the
petitioner is a Trustee. For such unauthorized user, the
respondeni 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
F
to the Trust on freehold tenure."
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
G 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
H pleaded that the said Trust is the owner of land bearing Gal No.
"'
CITY AND INDUS. DEVE. CORPN. v. DOSU AARDESHIR 35
BHIWANDIWALA & ORS. [B. SUDERSHAN REDDY, J.]
8/0 of village Belpada, Taluka Panvel, District Raigad A
admeasuring 19 Acres 26.4 gunthas which presently bears
Survey No. 465 of village Kharghar T,aluka 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 question. For the purposes B
of implementation of New Bombay Project vast extent of lands
from Panvel Taluka of Raigad district arid 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 C
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 D
correspondence between CIDCO and Government o.f
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 E
the 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. F
6. The appellant herein filed its affidavit in reply opposing
the admission of the writ petition in the High G.ourf. 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 G
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
H
36 SUPREME COURT REPORTS [2008] 16 S.C.R.
~
A said reply affidavit the appellant took the plea that the land is
required for the Navi Mumbai 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
B 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 r~questing to (sic;) the Government to
acquire it by following due process of law."
7. The State of Maharashtra and the Collector Raigad not
c 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
D Land Acquisition OfficedPanvel and Mr. M.N. Sariap, Tahsildar,
Panvel who are presenJ 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."
E '
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
F
receiving the requisition from the appellant. The question as
to whether the first respondent/writ petitioner was entitled to
payment of any cof1ipensation from the appellant for
occupation of the land 'for over a period of 35 years was left
open to be agitated in 'appropriate proceedings.
•.G
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
H Court vide order dated 08.03.2007 dismissed the Special
CITY AND INDUS. DEVE. CORPN. v. DOSU AARDESHIR 37
BHIWANDIWALA & ORS. [B. SUDERSHAN REDDY, J.]
't"-
leave Petition as withdrawn. Thereafter review petition was filed A
on various grounds which was also dismissed vide order dated
10.08.2007.
Hence these appeals by special leave.
B
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 !aches 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 c
submitted that number of disputed questions concerning the title
of the 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 D
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.
E
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
F
earlier acquired and the same continued to be a private land.
Shri Nariman also relied on the averments made by the
appellant herein in 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
G
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 H
38 SUPREME COURT REPORTS [2008] 16 S.C.R.
A relied upon the oral statement made through the learned A.G.P.
arid 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
B the averments made ,~Y 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 themselves
would amount to recoghising the title of the respondent? The
fact remains that there i~ no whisper in the impugned order that
c Sir Khan Bahadur Hormasji ' Bhiwandiwala Trust continued to
be the true and absolute owner of the land possessing valid
and subsisting title as o~ the date of the filing of the writ petition.
Nor there is any finding py the High Court as regards the nature
of the land which is one of the most important factor that may
have a vital bearing o~ the issue as to the entitlement of the
0
respondent to .
get any Irelief in the writ petition. There is also
no finding that the writ petitioner who filed the Writ Petition as
an individual is the truslee 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
E Petition by someone claiming to be a trustee without impleading
the trust as the petitioner. The High Court ignored the statement
made by the respondent in 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
F 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
G 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
H be concession as regards the title/ownership of the land in
,,
CITY AND INDUS. DEVE. CORPN. v. DOSU AARDESHIR 39
BHIWANDIWALA & ORS. [B. SUDERSHAN REDDY, J.]
)--
question. The appellant in its reply affidavit merely referred to A
a letter received by it from the Government informing itthe 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 affidavit
amount to concession recognising the title/ownership of the
lfnd in question in favour of the respondent. Such a statement B
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
c
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 D
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 appellant pointed out this in its
review application the High Court brushed aside the same and
dismissed the Review Petition relying on the explanation E
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 F
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 G
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 inasmuch as the acquisition
proceedings have commen<(ed after the disposal of the Writ H
40 SUPREME COURT REPORTS [2008) 16 S.C.R.
A 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
B 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
C 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 circumstances may lend credence to the
submission made by learned senior counsel for the appellant
D 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
E granting relief to the respondent.
In the absence offinding 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
F 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, it noted the reply affidavit filed by the
appellant herein obviously was confined to opposing the
G 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. l-;leard forthwith .... "
18. We are constr~ined to confess the case has left us
H perplexed. The stance ~dopted by the State of Maharashtra
CITY AND INDUS. DEVE. CORPN. v. DOSU AARDESHIR 41
BHIWANDIWALA & ORS. [B. SUDERSHAN REDDY, J.]
and the District Collector is stranger than fiction. It is difficult to A
discern as to why they remained silent spectators without
effectively participating in the proccedings 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 t~ese appeals the State Government as well as the appellant B
filed detailed affidavits disputing each and every statement and
assertion of the writ petitioner made in the Writ Petition
opposing grant of any relief 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 c
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 D
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 E
agitation of stale claims and exhuming matters where the rights
of third parties may have accrued in the interregnum.
20. The appellant in its reply opposing the admission of
Writ Petition in clear and categorical terms pleaded that the writ F
petitioner has kept silent for more than 35 years and filed
belated writ petition. It was asserted that on account of
inordinate delay and !aches 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 G
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 H
42 SUPREME COURT REPORTS [2008] 16 S.C.R.
A High Court.
22. In our opinion, the High Court while exercising its
extraordinary jurisdiction' under Article 226 of the Constitution
is duty bound to take all .the relevant facts and circumstances
into consideration and decide for itself even in the absence of
B
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 ari ex-parte writ of Mandamus, order or
direction in a public law remedy. Further, while considering
c 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
D 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;
E •
(b) petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy
. '
for the resolution of the dispute;
.
F (d) person invoking the jurisdiction is guilty of >-
unexplained delay and !aches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by
G 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
H for the consideration of the court and particularly in cases where
CITY AND INDUS. DEVE. CORPN. v. DOSU AARDESHIR 43
BHIWANDIWALA & ORS. [B. SUDERSHAN REDDY, J.)
public revenue and public interest are involved. Such directions A
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, empty and self-defeating
affidavits or statements of Government spokesmen by B
_,.. 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.
c
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 D
award passed and the reference made to the Civil Court are
set aside.
- 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
E
requires fresh consideration by the High Court.
-<
26. Parties are given liberty to supplement their respective F
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 G
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 Government reflecting
highly unsatisfactory state of affairs. We express our grave
H
44 SUPREME COURT REPORTS [2008] 16 S.C.R.
A 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 re.cords
B · 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
c 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 utilised the
lower ones to make oral statements and that too through its
A.G.P. in the High Co'urt. This malady requires immediate
D remedy. We hope the.Government sh~ll conduct itself in a
responsible manner and assist the High)~ourt 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
E competence and attention in drafting a.ffidavits.
Let not the fence eat the grass.
29. With these observations, we allow the appeals
F accordingly. "'
B.B.B. Appeals allowed.
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