MAHATMA GANDHI MISSIONversusCITY AND INDUSTRIAL DEVELOPMENT CORPORATION LTD. AND ORS.

A                         MAHATMA GANDHI MISSION
                                          V.

       CITY AND INDUSTRIAL DEVELOPMENT CORPORATION LTD.
                            AND ORS.

                              SEPTEMBER 16, 2005
B
                      [S.B. SINHA AND C.K. THAKKER, JJ.]


          Constitution of India, 1950-Artic/es 136 and 226-State Authority
C allotting land to Charitable Trust for setting up of a College, Charitable
    Hospital, Club and Stadium-Trust wanted to utilise part of allotted land for
    construction ofstaff quarters---Cancellation of allotment of the part of land by
    Authority on ground that possession was not given to the trust for the purpose
    ofstaff quarters-Writ Petition by trust dismissed by High Court---Correctness
    of-Held, on facts, trust failed to produce any documentary evidence to prove
D   lawful possession of land given by Authority for purpose of construction of
    staff quarters-Hence, action of Authority in cancelling allotment upheld.

          Appellant-charitable trust applied to respondent-public authority for
    allotment of land for setting up of an Engineering College, Charitable
    Hospital, Club and Stadium and for construction of staff quarters for its
E   employees. The respondent allotted land and executed agreements with
    the appellant for the lands allotted for College, Charitable Hospital and
    Club and Stadium. The appellant issued a notice to the respondent for
    undertaking actual measurement of the land as it became necessary before
    starting construction of staff quarters. The respondent cancelled the
F   allotment of the disputed land on the ground that the land was not allotted
    for the construction of staff quarters and directed the appellant to hand
    over vacant and peaceful possession of the disputed land to it. The
    appellant filed a Writ Petition before High Court challenging the action
    of the respondent. The High Court dismissed the Writ Petition.

G         In appeal to this Court, the appellant contended that the action of
    the respondent in cancelling the allotment of the disputed land is illegal
    and unlawful since the land was .allotted and given possession to it by the
    respondent for the purpose of construction of the staff quarters. The .
    appellant made an offer of willingness and readiness to pay the amount

H                                        246
          MAHATMA GANDHI MISSION''· CITY AND INDUS. DEVE. CORPN. LTD.     24 7
for the disputed land and furnishing of necessary blank guarantee to the          A
respondent at the time of hearing.

      The respondent contended that no agreement or deed has been
executed with the appellant for allotment of land and possession given to
it for construction of staff quarters; that the appellant illegally entered
into possession of the disputed land and made illegal constructions; and          B
that the appellant had not made any payment for allotment of the disputed
land. The respondent rejected the prayer of willingness and readiness of
the appellant to purchase the disputed land.

      Dismissing the appeal, the Court
                                                                                  c
      HELD: I.I. Respondent Corporation is a statutory public authority
and when such authority makes allotment and hands over possession of
immovable property, such an action would be in writing. The possession
of land was never given to the ap'pellant-trust by the respondent. No
agreement was entered into between the parties, no deed was executed,             D
no possession was given by the respondent to the appellant and the
appellant illegally and unlawfully and in a high handed manner entered
into the land which belonged to the respondent. 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
appellant contended that the land was allotted by the respondent and as           E
to how the appellant came into possession of the disputed land, except for
a bald statement by the appellant that the officers of the respondent
handed over possession to the trust, no material whatsoever had been
produced in the court on the basis of which possession of the appellant
could be said to be lawful. (252-E-F; 253-F-G; 254-A-B]                           F
      1.2. The respondent is right in objecting the prayer of willingness
and readiness of the appellant to purchase the disputed land. The
respondent 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. Keeping in view the           G
facts and circumstances, legal position and also equitable aspect of the
matter, this is not a tit case to exercise equitable jurisdiction under Article
136 of the Constitution in favour of the appellant. (254-B, C, D, E]

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1466 of2005.
                                                                                  H
    248                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A        From the Judgment and Order dated 31.I 0.2002 of the Bombay High
    Court in W.P. No. 4952 of 1999.

          Shekhar Nafde and Shivaji M. Jadhav with him for the Appellant.

          A.S. Bhasme, Shashi Kant Sharma, S.S. Shinde and Ravindra Keshavrao
B Adsure for the Respondents.
          The Judgment of the Court was delivered by

         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
C   Aurangabad on October 3 1, 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
D   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-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
E   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. I
    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
F   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
G   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;
H
 MAHATMA GANDHI MISSION v. CITY AND INDUS. DEVE. CORPN. LTD. [THAKKER,J.] 249

       (I) Housing scheme for employees of Jawaharlal Nehru Engineering          A
           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,    B
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
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 C
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 Hectres 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 D
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 E
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 F
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.                                     G
       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 ;md setting aside letter dated October 11, H
    250                       SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   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
B   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
C   contract. It was also contended that there was gross delay and !aches 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
D   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
E   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.
F
          The Division Bench of the High Court, in the Jig.lit 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 of Jawaharlal Nehru
G   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
H   the High Court to be more probable that the trust unlawfully occupied the
       MAHATMA GANDHI MISSION v. CITY AND INDUS. DEVE. CORPN. LTD. [THAKKER,J.] 251
                                               .
     _land. It was, therefore, open to CIDCO to ask the trust to restore possession      A
      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. Ihe 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           B
      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 wou_ld accept that the area of land was 2.4 7 Hectres   C
     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             D
     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 E
     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 p
     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 G
     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 H
    252                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   Petition in this Court, the trust had shown its readiness and willingness to pay
    the price of land admeasuring 2.4 7 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.

B          Mr. Bhasme, learned counsel for the Respondents, on the other hand,
    supported the order passed by the High Court. lt is submitted that no doubt
                                                                                        I-
    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,
C   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 allotment was made and hence
D   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.

E          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
p   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 Hectres said to
G   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 crncb was that though for other purposes, land
H   was allotted and possession was handed over to the trust, for construction of
  MAHATMA GANDHI MISSION v. CITY AND INDUS. DEVE. CORPN. LID. [THAKKER, J.] 253

staff quarters no such agreement was made. Obviously, in such a situation,        A
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       B
 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        C
 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           D
        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         E
        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        F
        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         G
executed, no possession was given by CIDCO to the appellant and the appellant
illegally and unlawfully and in high handed manner entered int..i the land
belonged to CIDCO. After such illegal act and entering into •mlawful
                                                                      1

possession of the property, it asked CIDCO to get the measuremen'. of land
done for which no payment was made by the trust. Such an ac'.ion' by a
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    254                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

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
B   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
C   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/nonns adopted
    by such authority and at the cost of public exchequer.

D          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
E   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
F   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
G   that point. In our view, the order passed by the High Court does not suffer
    from infinnity or illegality and hence, the appeal is dismissed.

    B.S.                                                         Appeal dismissed.