Bombay High Court
Pandurang Tukaram Kamble vs The State Of Maharashtra And 2 Ors on 23 December, 2014
Author: A. P. Bhangale
Bench: Naresh H. Patil, A. P. Bhangale
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WP1834.96&1763.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1834 OF 1996
Pandurang Tukaram Kamble )
Chief Promoter of Sarnath Magas Vargeea
Sahakari Griha Nirman Sanstha (Niyojith)
which is now known as Swami Samarth )
Co-op. Hsg. Society (Proposed) having )
its office at 3rd floor, Office No. 21, 201, )
Nagdevi Street, Mumbai 400 003,
through Constituted Anil Gulabdas Shah )
)
.. Petitioner
Versus
1 The State of Maharashtra )
Mantralaya, Bombay. )
2 The Additional Collector, )
Bombay Suburban District, having its )
office at Old Custom House, )
Bombay 400 023. )
3 Mathadi M. Kamgar Sahakari Griha )
Nirman Society Ltd., Shroff Bhavan, )
157, P.D'mello Road, Carnac Bunder )
Bombay 400 001. ) .. Respondents
WITH
WRIT PETITION N O. 1763 OF 2006
Pandurang Tukaram Kamble )
Chief Promoter of Shree Swami Samarth)
Co-op. Hsg. Society (Proposed) )
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WP1834.96&1763.06
Panchsheela Nagar,C/o. Hanuman Kirana
Stores, Shop No. 12, B.M.C. Market )
Tilak Nagar, Chembur, Mumbai 400 089) .. Petitioner
Versus
1 The State of Maharashtra )
having its office at Mantralaya, )
Bombay, through the Secretary, )
Revenue & Forest Department. )
2 The Additional Collector, )
Bombay Suburban District, having its )
office at Old Custom House, )
Bombay 400 023. )
3 Mathadi Kamgar Sahakari Griha )
Nirman Society Ltd., Shroff Bhavan, )
157, P.D'mello Road, Carnac Bunder )
Bombay 400 001. ) .. Respondents
Shri Shankar Thorat, counsel for petitioner.
Shri G.W. Mottos, AGP for respondents No.1 and 2.
Shri S.R Nargolkar, Advocate for respondent Nos. 3.
CORAM:-NARESH H. PATIL &
A. P. BHANGALE, JJ.
DATE ON WHICH JUDGMENT
IS RESERVED:- 18th December,2014
DATE ON WHICH JUDGMENT
IS RESERVED: 23rd December,2014
JUDGMENT:-(Per A. P. Bhangale, J.) Heard submissions at the bar. Perused copies of 2/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 3 WP1834.96&1763.06 documents including affidavits relied upon by the parties.
2 By Writ Petition No. 1834 of 1996, the Petitioner prayed that respondents No. 1 and 2 be directed to allot and hand over the piece of land ad measuring 2.5 Acres out of Survey Nos.
357 and 376 situated at Chembur, Mumbai. It must be noted that this writ Petition was disposed of earlier by an order dated 05-11-1996 by a Single Judge of this Court. The order was challenged in Appeal No. 757 of 1997 decided on 09-02-2004 by Division Bench of this Court, whereby it was restored for hearing and disposal afresh in accordance with law.
3 The Petitioner claimed as the Chief Promoter of the proposed Co-operative Housing Society "Sarnath Magasvargiya Sahakari Griha Nirman Sanstha". He claimed allotment of the plot of land from the respondent - State of Maharashtra on the ground that his application was bypassed and the application by the respondent No. 3 Society was considered. It is case of the Petitioner that Petitioner's society was established on 14-04-1981 and the Petitioner made an application dated 02-02-1983 to the Additional Collector , Old Customs House Bombay for allotment of 3/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 4 WP1834.96&1763.06 an open plot of land. During the period between the year 1983 to 1988 lot of correspondence took place between the Petitioner and the respondents as the Petitioner had requested for allotment of the land survey Nos. 357 and 376 situated at Chembur. On 25-03-1988, the Petitoner came to know from the news item in Marathi news paper 'Navakal' that the Government has decided to allot 42 acres of immovable property including survey Nos. 337 and 370 to respondent No. 3 Society. The petitioner had filed Writ Petition 2332 of 1988. At that time the respondents No 1 and 2 pointed out that they were actively considering the allotment of Survey No. 90 at Mulund to the petitioner's Society. As a result the said Writ Petition was dismissed. The Petitioner filed an appeal against the said order being Appeal No. 15 of 1989. By interim order dated 16th October, 1989 in Appeal No 1153 of 1989 in Writ Petition 2332 of 1998, dismissed earlier was restored to the file. When appeal came up, Division Bench noted that no steps whatsoever had been taken and in fact there had been no active consideration qua the appellant at any stage. According to the Petitioner the appeal was settled between the respondent no. 3 and the Petitioner and 180 4/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 5 WP1834.96&1763.06 members of the Petitioner were to be absorbed in the society of the respondent No. 3 Society, by allotting 2.5 Acres of land separately and this fact was recorded in the minutes of the meeting between the Petitioner and the society of Respondent No. 3. On 26-08-1993, the order was passed by Justice A. V. Savant directing the respondent No.1 - State to consider the proposal of the Petitioner and the respondent No 3 Society. On 30-11-1993, Justice B. P. Saraf directed the respondent No. 1 - State to consider the new names of the Petitioner's Society expeditiously. 180 names were submitted by the Petitioner as members of the Petitioner's Society.
On 15-09-1994, respondent No. 3 Society was not willing to absorb members of the Petitioner though earlier shown willingness to hand over possession of 2.5 Acres of land to the Petitioner's Society.
4 On 30-08-1996 Justice Mr. A. P. Shah held that no relief could be granted on the notice of Motion and the Petitioner was required to file a substantive petition. Hence Notice of Motion was withdrawn. Thus Writ Petition No. 1834 of 1996 was filed.
5 By another Writ Petition No. 1763 of 2006, the 5/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 6 WP1834.96&1763.06 Petitioner prayed for to quash and set aside the allotment order bearing No. LCS2696/308 case No. 6544/J-3 dated 21-01-2006 granting the land ad measuring 62 acres at Chembur, Wadala and Anik to the respondent No. 3, Mathadi Kamgar Sahakari Griha Nirman Sanstha. The Petitioner prayed that the respondents No. 1 and 2 be directed to allow the applications made by the Petitioner dated 02-02-1983 and 31-03-1983 to the State Government for the allotment of the plot of land ad mesuring the area of 2.5 Acres in Survey No. 376 situated at Chembur, Wadala, Mumbai Suburban area.
6 Learned Advocate Shri Thorat appearing on behalf of the Petitioner took us through the copies of documents annexed with the reconstructed Writ Petition and copies of affidavits which were filed on record and he earnestly submitted that the State Government was actively considering the allotment of the land in favour of the Petitioner's proposed co-operative Housing Society as evidenced by the various orders in the Writ Petitions which were filed by the petitioner to insist upon the allotment of the land for housing the members of the Petitioner's Society. State government, 6/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 7 WP1834.96&1763.06 therefore, ought to have alloted the land in favour of the Petitioner's co-operative Housing society. Shri Thorat referred to the ruling in Bakul Cashew Co. vs. Sales Tax Officer Quilon and another reported in (1986) 2 SCC 365. We have considered the ruling.
In our opinion, in the fact situation of the case in hand, the principle of equitable doctrine of the Promissory estoppel is not attracted. In Para 5 the Apex Court stated thus:-
"In cases of this nature the evidence of representation should be clear and unambiguous. It 'must be certain to every intent'. The statements that are made by ministers at such meetings, such as, 'let us see', 'we shall consider the question of granting of exemption sympathetically', 'we shall get the matter examined', 'you have a good case for exemption' etc. even if true, cannot form the basis for a plea of estoppel. Moreover, the events that have taken place subsequently belie the fact of any such promise by the ministers. It is seen that the Cashew Corporation of India had made a representation to the Government of India on May 7, 1971 and the Government of India wrote to the State Government on March 4, 1972 urging that the exemption prayed for by the cashew manufacturers may be favourably considered by the Government of Kerala. The 7/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 8 WP1834.96&1763.06 Government of Kerala, however, rejected the said request.
Then on further pressure being put upon it, it issued the notification dated October 12, 1973 and immediately thereafter withdrew it after it encountered severe public criticism. This conduct on their part is not consistent with the appellants' case that they had actually promised in the year 1971 to exempt the cashew trade from payment of the tax. The allegations made in the petition do not establish;
(i) that there was a definite representation by the Government to the effect that the Government will not levy the tax;
(ii) that the appellants in fact altered their position by acting upon such representation, and
(iii) that they had suffered some prejudice sufficient to constitute an estoppel. Hence the whole case of promissory estoppel lacks the necessary factual foundation.
It is, therefore, unnecessary to consider the question of law whether the plea of promissory estoppel can be raised against a legislation which levies tax and whether an assessee can claim exemption from a tax levied by the legislature merely on the basis of a representation of a minister."
Thus it is clear that a vague or bare statement made by an public 8/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 9 WP1834.96&1763.06 authority without certain intent or detail cannot form the plea for the promissory estoppel. In the cases of transfer of valuable immovable property by the Government principle / the doctrine of promissory estoppel is not normally attracted as there can not be estoppel against the Statute or binding legal provisions which are in force, requiring the essential conditions for validity of transfer to be complied when transfer is by any modes like Sale, Gift, Lease, Exchange, License etc according to law. i.e. in writing, compulsory registration, stamp duty attestation etc. Section 115 of the Indian Evidence Act defines estoppel:
"When one person has, by his declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
However the public authority concerned cannot be compelled to something which is contrary to law, not allowed by law or prohibited by law. The equitable doctrine of promissory estoppel 9/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 10 WP1834.96&1763.06 cannot be invoked in case the authority concerned acted against the statute because no one can be compelled to act in a manner which is contrary to law .
7 In the present case, we do not find any concrete, reliable material placed on the record so as to establish that a definite representation or promise by the Government for allotment of certain piece of land to the Petitioner's registered Housing Society with certain number of members as "Mathadi Kamgar" (Manual labourers) on it's roll from and that the Petitioner 's co-operative Housing Society acted upon the definite promise, altered it's position in such a manner, suffering the prejudice so as to constitute the acceptable plea of the promissory estoppel. Necessary factual foundation to press the principle of promissory estoppel is thus unfortunately lacking. In our opinion, an individual cannot insist upon the public authority or Government to transfer an immovable property to him unless the promise made is specific, definite with certain intent creating a legal or equitable right upon the premise of 'promissory estoppel'.
8 Even otherwise in the matters of allotment of 10/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 11 WP1834.96&1763.06 immovable property to any person, Government can not act like an unrestricted private individual in exercise of it's power in awarding it's highly valuable assets i.e. State largess. State Government need to bear in mind the provisions of the Maharashtra Land Revenue Code and relevant Statutes, Rules and Regulations to observe formalities of law required to create transfer / grant of immovable property.
Section 40 of the M.L.R. Code enacts saving of powers of Government.
"Nothing contained in any provision of the Code shall derogate from the right of the State Government to dispose of any land, the property of Government, on such terms and conditions as it deems fit. "
Thus assuming for the sake of argument that the State Government had full freedom to choose the grantee and make the grant operative, it had to impose terms and conditions for the grant of lease of the land as it may deem fit, if the State really intended to exercise it's right to allot or transfer the immovable property to the deserving citizens belonging to class of 'Mathadi Kamgar'-Manual labourers-belonging to economically weaker or socially backward 11/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 12 WP1834.96&1763.06 sections of the society recognized as Mathadi workers. However, the State cannot act in such a manner to allow or plunder away its immovable property to enable opportunist land grabbers and tax dodgers to loot away valuable immovable assets / property belonging to the State. In case the State Government intended to create grant of lease as contemplated under the Maharashtra Land Revenue Code, it was necessary for the State Government to carve a lay out of the land specified for the purpose of housing for the poor Mathadi Kamgars, consistent to the development plan intended in the area, to be prepared and approved by the planning authority, public notice was required to be published, if land is to be allotted by adopting a lottery system or draw of lots amongst beneficiaries/ persons who may apply for allotment of the Government land.
Requisite formalities to complete the grant or transfer of valuable immovable property according to law are essential. Citizens in the area concerned must know about availability of plots of immovable property and must have an equal opportunity to apply for the grant or transfer of the Government land. State Government cannot adopt any back door method for the purpose of allotment of 12/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 13 WP1834.96&1763.06 immovable property. Government is always expected to act fairly, reasonably and openly in public interest in the matter of allotment of any immovable property capable of fetching high and best market value, in a transparent manner to deserving persons in the society. Properly drawn out social and public policy to uplift economically weaker section of the society demands that a rational and transparent decision has to be taken in good faith and not upon any extraneous consideration. Even when the State Government is seeking to implement the public or social policy to be implemented for upliftment of the economically or socially backward persons in the society, only deserving and eligible person/s are entitled to compete and insist upon claiming benefit of a well drawn out social and public policy of the State government. It was necessary for the State Government to consider whether names of the members furnished as beneficiaries were genuine with their particulars as to credentials stated respectively. Favouritism and nepotism borne of undue influence cannot be allowed in grants from the State. In such matters no person must have reason to believe that he or she is discriminated at the hands of the Government, 13/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 14 WP1834.96&1763.06 while State Government is granting the lease in respect of valuable immovable property, and considering any application for allotment or transfer of an immovable property on merits, Government cannot plunder away its valuable resources in the form of immovable property in the city of Mumbai, while departing from the rules & regulations governed by the relevant statutes. If Government wants to enter in transaction of immovable property with any citizen it must abide by the law in force. It must follow due process of law, while discharging the public functions to grant interest in immovable property to any deserving person, therefore, a transparent decision must be taken, free from any undue influence, arbitrariness, malafides, without overstepping the limits or powers conferred under the statutes concerned.
9 For the aforesaid reasons the State Government must apply its mind and reconsider the allotment made in favour of the respondent no. 3 Mathadi Kamgar Sahakari Griha Nirman Society Limited as to whether the allotment was lawfully made to genuine and deserving beneficiaries in accordance with the provisions of law, rules and regulations in force by following the established 14/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 15 WP1834.96&1763.06 procedure of law and whether the same can be allowed to continue after considering and knowing the true identity of the members of the respondent no. 3 Society.
10 We therefore pass the following order:-
(A) Writ Petition No. 1834 of 1996 is found without merit and dismissed .
(B) Writ Petition No. 1763 of 2006 is partly allowed as under:-
State government of Maharashtra is directed to enquire into allegations made by the Petitioner and re-examine the allotment of the land made in favour of the respondent No. 3 co-operative Housing society and then to take an appropriate decision as to whether the allotment of immovable property can validly continue in favour of the respondent No. 3 Society, in view of the reasons recorded in the Judgment. If Decision of the allotment in favour of the respondent No. 3 continues, reasons be recorded as to the eligibility of the beneficiary members of the society of respondent No. 3 society as on the date of the allotment in favour of the 15/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 16 WP1834.96&1763.06 respondent No. 3. Members ineligible, if any, may be discontinued and the registered Co-operative Housing Society shall be required to continue to function only with the eligible or valid beneficiary members of the said Society as on the date of the allotment of immovable property in its favour and/or legal representatives of the deceased member if any, upon whom membership is validly conferred/transfered in accordance with the rules/bye-laws of the said Society. It is open for the State Government of Maharashtra to cancel the allotment, if found unlawful as on the date of allotment in favour of the respondent No 3. The final decision be taken by the State Government expeditiously and as early as possible, after granting opportunity of hearing to the parties concerned. The Petitioner and the Respondent No. 3 shall be at liberty to file their written representation, if any, within one month from the date of this order. Petition is partly allowed accordingly. No order as to costs.
Writ Petitions are disposed of accordingly.
Copy of this Judgment and order be sent to the Chief Secretary of the State of Maharashtra and the Principal Secretary, Law & Judiciary Department, State of Maharashtra for information 16/17 ::: Downloaded on - 23/12/2014 23:47:19 ::: 17 WP1834.96&1763.06 and necessary expeditious action.
(A.P. BHANGALE, J.) (NARESH H. PATIL, J.)
md.saleem
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