Bombay High Court
The Union Of India vs State Of Maharashtra And 8 Ors on 16 December, 2020
Author: Dipankar Datta
Bench: Dipankar Datta, G. S. Kulkarni
903 TO 903.2-WPL-5983-2020
sng
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3523 OF 2020
The Union of India } Petitioner
Versus
State of Maharashtra }
and Ors. } Respondents
WITH
WRIT PETITION (L) NO. 5983 OF 2020
The Union of India } Petitioner
Versus
State of Maharashtra }
and Ors. } Respondents
WITH
WRIT PETITION (L) NO. 7877 OF 2020
Maheshkumar G. Garodia } Petitioner
Versus
State of Maharashtra }
and Ors. } Respondents
Mr. Anil C. Singh, A.S.G. along with Mr. Rui Rodriques,
Mr.Aditya Thakkar, Mr. Pralhad Paranjpe, Mr. Nikhil Waje,
Mr.D.P. Singh, for the petitioner in WPL/5983/2020 and
WPL/3523/2020 and for R. Nos. 5 to 7 in WPL/7877/2020.
Mr. Shyam Mehta, Sr. Adv. alongwith Mr. Chirag Balsara,
Mr.Kaiwan Kalyaniwalla, Mr. Shehzad A. K. Najam-es-sani i/b
Maneksha & Sethna, Adv. for Petitioner in WPL/7877/2020.
1
903 TO 903.2-WPL-5983-2020
Mr. A.A. Kumbhakoni, Advocate General with Ms. Geeta Shastri,
Addl. G.P. and Mr. Akshay Shinde, (Asstt. to A. G.) for the State
in WPL/5983/2020 and WPL/7877/2020.
Mr. A.A. Kumbhakoni, Advocate General with Mr. G.W. Mattos,
AGP and Mr. Akshay Shinde, (Asstt. to A. G.) for the State in
WPL/3523/2020.
Ms. Janhvi Durve for respondent nos. 5 to 8 in WPL/5983/
2020.
Ms. Anuja Sarvade i/b. Ms. Shweta Rathod for respondent no. 9
in WPL/5983/2020 and WPL/3523/2020.
Dr. Milind Sathe, Senior Advocate a/w. Mr. Saket Mone, Mr.Subit
Chakrabarti, Mr. Abhishek Salian, Mr. Vishesh Kalra, Shantam
Mandhyan i/b.Vidhi Partners for respondent no.11 (MMRDA).
Mr. Zoru Bhathena, Intervenor, present in person.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- DECEMBER 16, 2020
ORAL ORDER :- [Per DIPANKAR DATTA, CJ.]
1. Writ Petition (L) No.3523 of 2020 (hereafter WP-I, for short) and Writ Petition (L) No.5983 of 2020 (hereafter WP- II, for short) are at the instance of the Union of India (hereafter "the UoI", for short).
2. WP-I, presented on September 22, 2020, registers challenge to 2 (two) orders at the instance of the UoI, viz. (i) an order dated May 21, 2015 passed by the Divisional Commissioner, Konkan Division and (ii) an order dated November 1, 2018 passed by the Hon'ble Revenue Minister.
2903 TO 903.2-WPL-5983-2020
3. In WP-II, which was presented on November 6, 2020, not only the aforesaid 2 (two) orders are under challenge (marked Ext. N and Ext. R) but a third order is also challenged, viz., an order dated October 1, 2020 (Ext. X) passed by the Collector, Mumbai Suburban District (hereafter 'the Collector", for short).
4. Writ Petition (L) No.7877 of 2020 (hereafter WP-III, for short), at the instance of Maheshkumar G. Garodia, was presented on December 5, 2020. In WP-III, the order dated October 1, 2020 of the Collector referred to above is under challenge.
5. The UoI and the State of Maharashtra appear to be at loggerheads in respect of ownership and possession of a saltpan land measuring 102 acres in Survey No.275, CTS No.657A at village Kanjur, Taluka - Kurla (hereafter "the subject land", for short). It is the claim of the UoI that the ownership of the subject land has been acknowledged by the Government of Maharashtra (hereafter "the GoM", for short) as well as the Mumbai Metropolitan Region Development Authority (hereafter the "MMRDA", for short) in several orders/letters/ correspondence annexed to WP-I and WP-II. Per contra, the GoM claims that it is the owner of the subject land and, therefore, entitled to deal with the same.
3903 TO 903.2-WPL-5983-2020
6. At the outset, we may note that the orders dated May 21, 2015 of the Divisional Commissioner, Konkan Division and the order dated November 1, 2018 of the Hon'ble Revenue Minister do not pertain to the subject land and hence, its legality, validity and/or propriety need not exercise our consideration. The latter order, i.e., the order dated November 1, 2018 having been passed under the Maharashtra Land Revenue Code, 1966, WP-I ought to be placed for consideration before a learned Single Judge of this Court having determination for it consideration, in terms of the provisions contained in Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. We shall make an appropriate order in that regard at a later part of this interim judgment.
7. The present dispute has its origin in the order dated October 1, 2020 of the Collector (in Marathi). What we discern from the English translation thereof is this. The MMRDA had approached the Collector with a request to allot the subject land for the purpose of setting up a car depot and casting yard of Metro Line (hereafter "the Metro car shed", for short). While considering such application, the Collector considered an order dated January 14, 1997 passed by a learned Judge of this Court in Writ Petition No. 5792 of 1996 (Sumermal Mishrimal Bafna & Ors. Vs. State of Maharashtra & Ors.) (hereafter "Bafna's WP", for short) [wherein an adjudicatory order dated September 30, 1996 4 903 TO 903.2-WPL-5983-2020 passed by the Officer-on-Special Duty, GoM (hereafter "the OSD", for short) was under challenge, excluding the opinion rendered by such officer in respect of the subject land] and formed the views, inter alia, relying on the opinion of the Advocate General for the State of Maharashtra that the subject land was not the subject matter of consideration of Bafna's WP and also that the subject land demanded by the MMRDA is not covered by the interim order dated January 14, 1997 passed on Bafna's WP. The Collector thereafter proceeded to rely on a Notification dated December 31, 2015 to the effect that if any Government land is required for Government projects which are duly approved by the State Government, the Collector shall be competent to provide such land to the concerned department. A reference was also made to a Government Resolution dated June 1, 2017 for the purpose of handing over Government land from a particular department to another department of the Government, which might require such land for a public project. Referring to such notification/resolution, the Collector passed an order granting the prayer of the MMRDA for allotment of the subject land in its favour and ordered that possession thereof is given to the MMRDA for the purpose mentioned therein on the conditions forming part of such order. One of the "Terms/Conditions" relevant for the present purpose is quoted below:-
1. .....
2. .....
3. .....5
903 TO 903.2-WPL-5983-2020
4. ....
5. If some suits are pending in various courts in respect of the said land as well as the order in the Petition No.5792/1996 will be binding upon the Mumbai Metropolitan Region Development Authority and concerns.
6. .....
7. .....
8. .....
9. .....
10. ....."
8. Close on the heels of this order of the Collector, October 6, 2020 to be precise, possession of the subject land was delivered to the MMRDA. It is not disputed at the Bar that the MMRDA has since handed over possession of the subject land to a contractor, Delhi Metro Rail Corporation Limited, for setting up of the Metro car shed.
9. Opposing the order dated October 1, 2020 of the Collector, the I/C Deputy Salt Commissioner, Mumbai, on October 10, 2020 lodged an objection before the Collector.
Based on its contents, the Deputy Salt Commissioner called upon the Collector to immediately withdraw the order dated October 1, 2020. Soon thereafter, the Salt Commissioner too lodged a complaint dated October 12, 2020 before the Principal Secretary, Revenue Department, GoM contending that the order of the Collector was unacceptable and requested the Principal Secretary to direct the Collector to withdraw his order dated October 1, 2020. The Collector by his order dated October 15, 2020 negated the claim of the 6 903 TO 903.2-WPL-5983-2020 I/C, Deputy Salt Commissioner and justified his earlier order dated October 1, 2020.
10. These are the facts and circumstances immediately preceding presentation of WP-II.
11. On behalf of the UoI, Mr. Singh, learned Additional Solicitor General, has sought to impress us that the Collector usurped jurisdiction and in a most arbitrary and highhanded manner passed the order dated October 1, 2020 without putting the UoI on notice and without considering evidence which are relevant, material and germane.
12. At this stage, we need not refer to all the documents shown to us (forming part of the already voluminous records) by Mr. Singh except three, viz. (i) the adjudicatory order of the OSD dated September 30, 1996 (page 86 of WP-II), (ii) letter dated March 28, 2019 (page 602 of WP-II) of the Metropolitan Commissioner, MMRDA addressed to the Joint Secretary, Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India, and (iii) letter dated December 4, 2019 (page 611 of WP-II) of the Additional Chief Secretary, Urban Development Department (UD-1), Government of Maharashtra, addressed to the Secretary, Ministry of Commerce and Industry, Department for Promotion of Industry and Internal Trade, Udyog Bhavan, New Delhi.
7903 TO 903.2-WPL-5983-2020
13. Having read the order of the OSD at (i) supra, it is clear that while considering certain petitions filed by Shri Sumermal Bafna and 2 (two) others against orders passed by the Commissioner, Bombay Division, the OSD upheld "concurrent findings of the Tahsildar, Kurla, and S.D.O." and held that the subject land is still in the possession of the Salt Department, Government of India. Perusal of the letters at (ii) and (iii) supra would reveal that the MMRDA and the GoM acknowledged that the subject land was a saltpan land and that both (the MMRDA and the GoM) were ad idem in respect of transfer of such saltpan land on permanent basis to the MMRDA for the purpose of setting up the Metro car shed.
14. Opposing WP-I and WP-II, Mr. Kumbhakoni, the learned Advocate General for the State of Maharashtra contended that WP-II suffers from the defect of mis-joinder of causes of action. Next, he contended that although the UoI in WP-II has annexed documents to establish that the subject land was acquired invoking the provisions of the Land Acquisition Act, 1894, no award published in terms of such enactment is on record; the documents on record are merely declarations issued under Section 6 thereof. By no stretch of imagination, the subject land could have been acquired by mere issuance of declaration under Section 6 and therefore, the claim of the UoI of being the owner of the 8 903 TO 903.2-WPL-5983-2020 subject land is fallacious. It was then contended that the order of the OSD dated September 30, 1996 is clearly unsustainable, firstly, because such proceedings had arisen out of an inquiry conducted under Section 37 of the Bombay Land Revenue Code, 1879 and in view of the decision of the Supreme Court in Union of India Vs. Mundra Salt and Chemical Industries, reported in (2001) 1 SCC 222, the same cannot result in conferring ownership on the UoI, and secondly, in the proceedings before the OSD, there was no contest regarding title or possession of the UoI and GoM. He was then heard to submit that the Development Plan of the year 1967 prepared after following due process under the Maharashtra Regional and Town Planning Act, includes verification of actual land use and various reservations are shown in respect of the subject land, such as hospital, garden, school, playground, etc. Likewise, in the Development Plan of 1991 and the Development Plan-2034, various other reservations are shown. It would, therefore, appear therefrom that since 1967, activities of salt manufacture have never been carried on, on the subject land, and at no point of time since then has the UoI objected to any of these reservations. All these and many other aspects of the matter, would clearly demonstrate that the UoI neither had or has title, nor had or has actual physical possession of the subject land, and that the State of Maharashtra is the owner and in physical possession of the subject land. In this connection, he also 9 903 TO 903.2-WPL-5983-2020 referred to the revenue records to show that the subject land stands recorded in the name of the State of Maharashtra.
15. While concluding his submissions, Mr. Kumbhakoni relied on the decisions of the Supreme Court in Canbank Financial Services Limited Vs. Custodian and Others, reported in (2004)8 SCC 355, and in Govindammal (dead) by Legal Representatives and Others Vs. Vaidiyanathan, reported in (2019) 17 SCC 433, in support of the proposition of law that an admission can be explained away by its maker.
16. The aforesaid contentions are also contained in Mr. Kumbhakoni's written notes of arguments, which have been taken on record. Having regard thereto, he submitted that the Collector had acted well within his jurisdiction and the order under challenge dated October 1, 2020 is unexceptionable and may not be disturbed.
17. Dr. Milind Sathe, learned senior advocate appearing for the MMRDA, adopted the submissions of Mr. Kumbhakoni. Additionally, he contended that the UoI cannot derive any advantage of the order dated September 30, 1996 of the OSD since it was passed on an application which had been rejected earlier and there was no order reviving such application. Finally, by referring to the 10 903 TO 903.2-WPL-5983-2020 detailed project reports as well as the plans prepared by the MMRDA, he sought to highlight the aspect of public interest that is likely to suffer if interim relief were granted in favour of the UoI on terms as prayed for.
18. During the pendency of WP-I and WP-II, WP-III was presented. Appearing on behalf of the petitioner in WP-III, Mr. Mehta, learned senior advocate brought to our notice how interest in respect of the subject land together with other lands devolved on the petitioner. He further invited our attention to a pending civil suit (Suit No.1173 of 2005), which the petitioner had instituted against the UoI and others challenging its refusal to renew a lease that was granted in 1922, for a period of 99 (ninety-nine) years to be effective from 1917. In such suit, the petitioner had filed Notice of Motion bearing No.1246 of 2005. By an order dated April 26, 2005, a learned Judge of this Court adjourned the hearing till June 13, 2005. While granting time to the defendants in the suit to file affidavit-in-reply, ad-interim relief in terms of prayer clause (a) was granted till June 13, 2005. Prayer clause (a) reads as follows:
"(a) that pending the hearing and final disposal of the suit the defendants or any one of from the office of the defendants be restrained by an order of injunction from taking any further steps pursuant to order dated 2nd November 2004 issued by defendant no.1 without due process of law".11
903 TO 903.2-WPL-5983-2020 By a further order dated July 4, 2005, the ad-interim order passed on April 26, 2005 was directed to continue till hearing and final disposal of the notice of motion. Suit No.1173 of 2005 was thereafter transferred to the Bombay City Civil Court and renumbered as Suit No.6256 of 2005. Notice of Motion bearing No.321 of 2005 was filed in Suit No.1173 of 2002 renumbered as Suit No.6256 of 2005, by the Deputy Salt Commissioner seeking temporary injunction to restrain the plaintiffs from creating third party rights in respect of the suit property. By an order dated April 16, 2016, the Bombay City Civil Court made the said motion absolute in terms of prayer clause (a). Our attention was next invited to Chamber Summons No.1462 of 2018 filed by the MMRDA in Suit No.6256 of 2005 seeking intervention and permission to use a portion of the suit property. According to Mr.Mehta, the suit property is the subject land which the Collector by the impugned order dated October 1, 2020, has been delivered to the MMRDA wrongfully and illegally. The statement of the MMRDA in paragraph 1 of the affidavit-in-support of the Chamber Summons was shown by Mr. Mehta, which reveals the stand of the MMRDA that the suit land belongs to the Central Government. Based on the above, it is Mr. Mehta's contention that the MMRDA did not approach the Collector with clean hands and persuaded the Collector to pass an order whereby possession of the subject land has been 12 903 TO 903.2-WPL-5983-2020 delivered in favour of the MMRDA. According to him, the MMRDA is fully aware of the orders passed in Suit No.6256 of 2005, yet, approached the Collector withholding relevant facts and evidence and obtained the order dated October 1, 2020 deviously.
19. Mr. Mehta also placed before us a decision of a coordinate Bench of this Court dated October 26, 2018 in Writ Petition (L) No.2766 of 2017 (Ms. Amrita Prithwishwar Bhattacharjee & ano. Vs. State Government of Maharashtra & ors.). By such writ petition, the petitioners sought for intervention of the Court so that land at Kanjur Marg be allotted to the MMRDA to construct "car-shed depot" for preventing destruction of trees in Aarey Milk Colony which had been identified as the site for the Metro car shed. Referring to paragraph 20 and onwards of the decision, wherein the stand of the GoM is recorded, Mr. Mehta urged that the land at Kanjur Marg was not found to be suitable and the GoM decided in favour of the Aarey land. The GoM, based on the evidence placed before the Court and the submissions advanced on its behalf, was successful in persuading the Court to dismiss the writ petition. The present move of having the Metro car shed on the subject land, thus, would seem to be a clear deviation from the policy that was earlier taken, without any valid basis.
20. While we were pondering, upon hearing Mr. Singh, Mr. Kumbhakoni and Dr. Sathe, what could be the appropriate 13 903 TO 903.2-WPL-5983-2020 order to be passed on facts and in the circumstances bearing in mind that it was ultimately a dispute between the high and the mighty States and that after all the subject land was a public land over which no private party had claimed any interest and also that public interest in fair measure was involved which required serious consideration, the startling revelations made by Mr. Mehta made us sit back and take a deeper look into the records. After such an exercise, we had, prima facie, expressed in Court on December 14, 2020 that the order of the Collector dated October 1, 2020 could not withstand judicial scrutiny because of serious infirmities in the decision-making process. We had, accordingly, adjourned hearing till December 16, 2020 to enable Mr. Kumbhakoni to obtain instructions from the Collector as to whether he is willing to withdraw the order dated October 1, 2020 and to proceed with the matter in accordance with law upon hearing the relevant parties.
21. Today, Mr. Kumbhakoni submits that the Collector is willing to withdraw the order dated October 15, 2020 by which he dealt with the objections raised by the I/C Deputy Salt Commissioner but not the parent order dated October 1, 2020 and also that he is ready and willing to grant post decisional hearing to the parties as well as to decide the issues within such time that this Court would be pleased to fix. He further submits that since there are media reports 14 903 TO 903.2-WPL-5983-2020 to the effect that the subject property is being encroached upon by a section of the general public with the expectation of receiving compensation while the MMRDA proceeds to develop and use the subject land in future, the MMRDA may be permitted to erect proper fencing around the subject property for the purpose of its security. His last submission is that the MMRDA may be permitted to carry on with soil testing activities.
22. Dr. Sathe, when called upon, placed before us an order dated November 21, 2003 passed by the Supreme Court in SLP (C) No.18717 of 2001 (Resident Association of Chincholi Bunder Area Vs. Municipal Corporation of Greater Bombay & ors.) in support of the contention that at the dawn of this century the GoM had decided to have the Metro car shed on the subject land at Kanjur Marg and that nothing ought to be done in violation of the arrangements made therein.
23. The submissions of Mr. Kumbhakoni and Dr. Sathe, however, faced stiff opposition from both Mr. Singh and Mr. Mehta who insisted that the order of the Collector dated October 1, 2020 should be set aside and status quo ante as on October 5, 2020 ordered to be restored.
24. We were about to pass our order when one Mr. Zoru Bhathena, appearing in person, sought leave to intervene and make submission. We granted him leave. He 15 903 TO 903.2-WPL-5983-2020 brought to our notice Civil Application No.84 of 2016 filed in Bafna's WP. According to him, the applicant - State of Maharashtra through the Revenue Department being the Respondent No.1 in the writ petition, prayed for permission from this Court to use the subject land for construction of main car shed depot for the Metro rail line no.3 (Colaba- Bandra-SEEPZ) Project to be integrated with Jogeshwari- Kanjurmarg elevated metro corridor and also that such application was pending.
25. The twists and turns that emerged since we started hearing these writ petitions left us to wonder whether any more surprise is in store for us.
26. Having seen such application filed on behalf of the State of Maharashtra in Bafna's WP, we had inquired of Mr. Kumbhakoni as to whether he was made aware of such application by his instructing officers. The answer was an obvious 'NO'. He ventured to submit that had he known of such an application, he would have most certainly placed it before us. We find no words to express our displeasure at the learned Advocate General for the State of Maharashtra being put to embarrassment by the officers of the relevant department who had the occasion to deal with the present issue of setting up of the Metro car shed on the subject land at Kanjur Marg. Be that as it may.
27. Although, at the first blush, it could appear that the writ court has been urged to decide a question of title in 16 903 TO 903.2-WPL-5983-2020 respect of an immovable property, on an in-depth scrutiny, what we are left to examine is whether the decision-making process leading to the impugned order of the Collector dated October 1, 2020 suffers from any vice of illegality, irrationality or procedural impropriety to attract judicial review. What is revealed from the materials on record is dispossession of parties interested in a property not by procedure known to law, but by an executive fiat. The Collector has treated the subject land as the property of the GoM and allowed possession thereof to be taken by the MMRDA by referring to certain notifications/resolutions, without giving any opportunity either to the UoI or to the petitioner in WP-III to respond to the prayer of MMRDA. In a society where 'Rule of Law' has primacy, the minimum that we expect of a responsible office as the Collector is to adopt a fair, reasonable and impartial approach. That is unfortunately lacking in the present case. Despite given an opportunity to proceed in accordance with law, he has not availed it. We are, thus, constrained to hold that the impugned order is in the teeth of the decision of the Supreme Court in Bishan Das & ors. Vs. State of Punjab & ors., reported in AIR 1961 SC 1570. Although such decision was rendered when 'Right to Property' was a Fundamental Right, the dictum of the Constitution Bench still has relevance in view of 'Right to Property' being recognized as a Constitutional right.
17903 TO 903.2-WPL-5983-2020
28. That apart, in the process of allowing the prayer of the MMRDA, the Collector does not appear to have considered the evidence which was relevant, material and germane for a decision on the prayer of the MMRDA. This was obviously because the request of the MMRDA was disposed of without putting the UoI and the petitioner in WP-III on notice. The order and the two letters referred to in paragraph 11 supra do not appear to have been placed before the Collector and, therefore, he too did not have the occasion to consider the same. If indeed the same had been placed before him, he ought to have referred to it. Non-consideration of evidence that was relevant, material and germane is a serious flaw in the decision-making process vitiating the impugned order and rendering it perverse.
29. Next, the presentation of Civil Application No.84 of 2016 by the State of Maharashtra has left us intrigued. Permission having been sought for from the Court [obviously because the request of the Salt Department in the UoI for correcting revenue records in terms of the order of the OSD dated September 30, 1996 not having been granted referring to the interim order passed in Bafna's WP (letter dated April 16, 1999 of the Desk Officer, Revenue and Forests Department, page 2 of the compilation of Mr. Singh)] and the Court being seized of such application, it stands to reason that the GoM could not have on its own utilized the subject land for any public purpose conceived 18 903 TO 903.2-WPL-5983-2020 by it. However, we are aghast to note that while Civil Application No.84 of 2016 has been pending, the Collector on his own and without waiting for the outcome of such application has passed the impugned order and delivered possession to the MMRDA. Significantly, the plan annexed to such application and the plan placed before us by Dr. Sathe bear clear resemblance evincing that the site for the proposed Metro car shed is one and the same, i.e., the subject land. We, thus, see no reason as to how during its pendency the Collector could pass such an order. Looking at the decision in Amrita Prithishwar Bhattacharjee (supra), it seems to be clear that there has been a change in policy with change in the ruling dispensation in the State. While changes can be effected keeping in mind what the larger public interest warrants, extraneous considerations ought not to outweigh all other considerations of propriety, legality and fairness in administrative action. The decision- making process leading to the impugned order does not pass the test of judicial scrutiny on this count. We are conscious of the element of public interest involved in setting up of the Metro car shed on the subject land; at the same time, we cannot remain oblivious if a person is divested of its/his right in property without the authority of law.
30. We also find an attempt on the part of the Collector to conveniently not refer to the subsisting order of injunction 19 903 TO 903.2-WPL-5983-2020 in Suit No.6256 of 2005, yet, imposing a condition (which we have extracted supra) suggesting that the MMRDA would be bound by its decision. The ad-interim order of this Court, which has since been extended till disposal of the notice of motion, has been given a complete go-bye by the Collector. We do not wish to be harsh at this stage because all the materials are yet to be placed before us, but cannot desist from observing that the Collector's action of passing the impugned order in the manner he did does border on committing a 'fraud on power'.
31. Further, the application made by the MMRDA on which the Collector has passed the impugned order is yet not on record. We are left to guess whether the MMRDA disclosed therein that it had sought to intervene in Suit No.6256 of 2005 acknowledging that the subject land belongs to the Salt Department, that it requires such land for its use, that such attempt was unsuccessful and that it had agreed to transfer of the subject land by the UoI on permanent basis. If not disclosed, we cannot but deprecate the attempt of the MMRDA to steal a march over the UoI by withholding relevant information. At this stage, it does not appear from the impugned order of the Collector that the MMRDA's application disclosed all events and incidents of the past relating to its unsuccessful attempt to have possession of the subject land. We need to examine this point too once the pleadings are complete.
20903 TO 903.2-WPL-5983-2020
32. The decisions of the Supreme Court relied on by Mr. Kumbhakoni reiterates the settled law that an admission is the best piece of evidence but an admission can be explained by its maker. To what extent the admissions in the present case can be explained for not being acted upon is a question that could come up for consideration when the writ petitions are finally heard. At the moment, we cannot discard the admissions from our consideration, far less turn a blind eye to the same, based on consideration of such decisions.
33. The common contention of Mr. Kumbhakoni and Dr. Sathe that the order dated September 30, 1996 of the OSD is of no effect has not impressed us. An order does not bear a stamp of invalidity on its forehead. It has to be declared void upon institution of proceedings in that behalf. Till this date, the order of the OSD remains a public order, which was publicly made and is effective till such time it is invalidated in appropriate proceedings upon a challenge being laid at the instance of an appropriate person. Also, it is settled law that a respondent in a writ petition cannot attack its own order. If any authority is required, we may usefully refer to the decision of the Supreme Court in State of Assam Vs. Raghav Rajagopalachari, reported in 1972 SLR 44 (paragraph 13).
21903 TO 903.2-WPL-5983-2020
34. We are also of the view that the order in Resident Association of Chincholi Bunder Area (supra) relied on by Dr. Sathe cannot be of any assistance for him since it cannot bind the UoI or the petitioner in WP-III, without it being shown that they were parties to the proceedings before the Supreme Court. The contents of the order does not show that the UoI or the petitioner in WP-III was a party to the proceedings before the Court.
35. These are our prima facie observations, upon consideration of materials placed and the events that have unfolded before us. Resting on the same, we hold the view that a very strong case for admission of WP-II and WP-III as well as for grant of interim relief has been set up, notwithstanding that a public project would be held up in view of the nature of relief that we propose to grant. However, the executive must take the blame for it for being careless in its approach.
36. There shall be Rule as prayed for in WP-II and WP-III, returnable in February, 2021. It is, however, made clear that the subject matter of WP-II and WP-III being confined to the subject land and not any property with which the respondent nos.4 to 8 in WP-I and WP-II are concerned, such respondents shall stand discharged from the array of parties.
22903 TO 903.2-WPL-5983-2020
37. Reply affidavits be filed by the respective respondents by January 22, 2021; rejoinder affidavits thereto, if any, be filed by the respective petitioners by January 29, 2021.
38. We are also of the view that the petitioners in WP-II and WP-III are entitled to interim protection for the prima facie view and the reasons discussed above. There shall be interim order in terms of prayer clauses (h) and (i) of WP-II, reading as follows:
"(h) That pending the hearing and final disposal of the Petition, this Hon'ble Court be pleased to stay the operation of the Order dated 01.10.2020 passed by the Respondent No.10, Collector, MSD to transfer the possession of 102 Acres (41.28 Ha) of land from Survey No.275 pt.
(CTS No. 657-A) of village Kanjur MSD to the Respondent No.11, MMRDA and consequent transfer made to Respondent No.12;
(i) That pending the hearing and final disposal of the Petition, this Hon'ble Court may be pleased to pass a restraint order staying the ongoing operations being carried out by the Respondent No.12, DMRCL on the site of the subject land;"
39. Civil Application No.84 of 2016 in Writ Petition No. 5792 of 1996 (Sumermal Mishrimal Bafna & Ors. Vs. State 23 903 TO 903.2-WPL-5983-2020 of Maharashtra & Ors.) be listed together with WP-II and WP-III.
40. WP-I, i.e., Writ Petition (L) No.3523 of 2020, shall stand de-tagged. It shall be placed before the appropriate Bench having determination for consideration.
41. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.
Jayant V. (G. S. KULKARNI, J.) (CHIEF JUSTICE) Salunke Digitally signed by Jayant V. Salunke Date: 2020.12.17 17:54:06 +0530 24