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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 934/94, 967/92, 1179/93, 3085/93,
1784/92, 1034/95, 1512/2000, 1136/93, 2322/92, 822/99,
1070/2000 & 5145/07.
(1) WRIT PETITION NO. 934 OF 1994.
Friends Cooperative Housing Society
Limited, Nagpur, duly registered
under the Maharashtra Cooperative
Societies Act, 1960, bearing Registration
No. HSG/NGP/123 of 1962, having
its registered office at 41, Tatya Tope
Nagar, Nagpur-15, through its
Secretary.
ig.... PETITIONER.
....Versus....
1.The Nagpur Improvement Trust, through
its Chairman, Civil Lines, Nagpur,
2.The State of Maharashtra, through its
Secretary, Department of Urban
Land Development, Mantralaya Annexe,
Bombay-32,
3.Matru Seva Sangh, a society registered
under the Bombay Public Trusts Act,
having its registered office at Sitabuldi,
Nagpur, through its Secretary,
4.Sati Mata Shikshan Sanstha, through
its Secretary, 11, Vyankatesh Nagar,
Khamla Road, Nagpur-25. .... RESPONDENTS.
Mr. Uday Dastane, Counsel for petitioner,
Mr. A.S. Fulzele, A.G.P. for respondent no.2,
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Mr. S.K. Mishra, Counsel for respondent no.1,
Mr. S.S. Joshi, Counsel for respondent no.3.
Mr. S.D. Deshpande, Counsel for respondent no.4.
(2) WRIT PETITION NO. 967 OF 1992.
PETITIONERS: 1. Dharampeth Grihanirman Sahakari
Sanstha, bearing Registration No.
1041/55, 89-C, Ramnagar, Nagpur-10,
through its Secretary - Shri Gangadhar s/o
Narayan Morone, aged 61 years, Occu:
Pensioner, r/o 117, Abhyankar Nagar,
Nagpur.
2. Citizen Uplift Society,
ig23, Gawande Lay-out, Khamla Road,
Nagpur-15, by its Secretary, Shri Ramrao
Wankhede.
: VERSUS :
RESPONDENTS: 1. The Nagpur Improvement Trust,
through its Chairman, Kings way, Sadar
Nagpur-1.
2. Bhartiya Adim Jati Sewak Sangh,
through Secretary Shri M.N.More,
Yogabhyasi Mandal, Ramnagar, Nagpur-10.
3. National Centre for Rural Development,
through Managing Director Shri Ram Kale,
253 Shivaji Nagar, Nagpur-10.
INTERVENORS: Deendayal Nagar Semutkarsha Sanstha Ltd.,
through its Secretary, Registered Office at
29-Dharampeth Layout, Deendayal Nagar,
Nagpur-22.
Mr.R.S.Parsodkar,Advocate for the petitioners.
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Mr.S.K.Mishra, Advocate for N.I.T.
Shri S.W.Ghate, Advocate for the intervenor.
(3) WRIT PETITION NO.1179 OF 1993.
PETITIONER: Saraswati Cooperative Housing Society Ltd.
bearing registration No.1796/60, through
its Secretary, Shri H.B. Chikerur, aged about
74 years, Occupation : Retired from Service,
R/o 57-58, Deendayal Nagar, Nagpur.
: VERSUS :
RESPONDENTS: 1. The Nagpur Improvement Trust, through its
Chairman, near Liberty Cinema Sadar,
Nagpur.
2. Halba Koshti Housing Society, through its
Executive Member Shri Asai,
Civil Lines, Nagpur.
INTERVENOR : Dnyan Vidnyan Vardhini, 185, NIT Layout,
Trimurti Nagar, Ring Road, Nagpur, through
its General Secretary Smt. Preeti P. Siras.
Mr.R.S.Parsodkar,Advocate for the petitioner.
Mr.S.K.Mishra, Advocate for N.I.T./respondent no.1.
Shri Ambilwade, Adv. for respondent no.2.
Shri D.L.Dharmadhikari, Adv. for the Intervenor.
(4) WRIT PETITION NO.3085 OF 1998.
PETITIONER: Telecom Engineering Cooperative
Housing Society Ltd., through its
Secretary Shri G.V.Sohoni, 71, Telecom
Amenity Hall, Telecom Nagar, Nagpur.
: VERSUS :
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RESPONDENTS: 1. The Nagpur Improvement Trust,
through its Chairman, Near
Liberty Cinema, Sadar,Nagpur.
2. The Corporation of the City of Nagpur through
the Municipal Commissioner, Civil Lines,
Nagpur.
3. Vidarbha Cricket Association,
through its Secretary, Nagpur.
Mr.A.M.Ghare, Advocate for the petitioner.
Mr.S.K.Mishra, Advocate for respondent no.1.
Mr.R.S.Parsodkar, Advocate for respondent no.2.
(5)
WRIT PETITION NO. 1784/1992
The Rani Laxmi Nagar Nagrik Sabha,
Regd. No. 567, Laxmi Nagar, Nagpur,
through its President.
.....PETITIONER
...V E R S U S...
1. The Nagpur Improvement Trust,
through its Chairman.
2. The Scientific Cooperative Housing
Society, Rani Laxmi Nagar, Nagpur,
through its Secretary. .....RESPONDENTS
Mr. M. M. Agnihotri, Advocate for the petitioner.
Mr. S. K. Mishra, Advocate for respondent no. 1.
Mr. P. T. Trivedi, Advocate for respondent no.2.
(6) WRIT PETITION NO. 1034/1995
1. Keshao s/o Pandurang Shivankar,
aged about 53 years, r/o Plot No. 16,
Gawande Colony, Chhatrapati Nagar,
Nagpur.
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2. Prabhakar Krishnarao Patrikar,
aged about 60 years, r/o plot No. 11-A,
Pendse Layout, Wardha Road, Nagpur.
3. Narayanrao Jagobaji Gawande Public
Trust, through its Secretary, Shri Madhukar
Pandurang Gawande, r/o Gayatri Nagar,
South Ambazari Road, Nagpur.
.....PETITIONERS
...V E R S U S...
1. State of Maharashtra, through its
Secretary, Urban Development,
Mantralaya, Bombay-32.
2. Nagpur Improvement Trust,
through its Chairman, Station Road,
Sadar, Nagpur.
3. Santaji Mahavidyalaya through its
Chairman Govindrao Wanjari,
Wardha Road, Nagpur.
4. Shri Govindrao Wanjari,
President, Santaji Mahavidyalaya,
Wardha Road, Nagpur. .....RESPONDENTS
Mr. Anand Parchure, Advocate for the petitioner.
Mrs. K.S. Joshi, A.G.P. for respondent no. 1.
Mr. R. P. Joshi, Advocate for respondent no.2.
Mr. S. P. Dharmadhikari, Advocate for respondent nos. 3 and 4.
(7) WRIT PETITION NO.1512 OF 2000.
PETITIONER: Janta Co-operative Housing Society Ltd.,
Nagpur, duly registered under the
Maharashtra Cooperative Societies Act, 1960,
bearing Registration No. HSG/NGP/952 of
1955, having its registered office at 374,
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Shankar Nagar, Nagpur-15 through its
Secretary.
: VERSUS :
RESPONDENTS: 1. The Nagpur Improvement Trust,
through its Chairman, Civil Lines, Nagpur.
2. The State of Maharashtra,
through its Secretary, Department of Union
Land Development, Mantralaya, Annexe,
Mumbai 400032.
3. The Nagpur Municipal Corporation, Nagpur,
through its Municipal Commissioner.
Mr.U.Dastane, Advocate for the petitioner.
Mr.S.K.Mishra, Advocate for respondent no.1.
Mrs. K.S. Joshi, A.G.P. for respondent no.2.
(8) WRIT PETITION NO. 1136 OF 1993.
PETITIONER: Shri Gajanan Cooperative Housing
Society Ltd., Wardha Road, Nagpur through
its Secretary Shri J.G.Padnis, Plot No.53,
Gajanan Nagar, Wardha Road, Nagpur.
: VERSUS :
RESPONDENTS: 1. The Nagpur Improvement Trust,
through its Chairman, Kingsway,Nagpur.
2. Kanya Kubjya Vaishya (Halwai)
Hitkarni Sangh, through their President,
C/o Anant Gupta Bhandar, Nalsaheb Chowk,
Bhandara Road, Nagpur
Mr.V.S.Kukday, Advocate for the petitioner.
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Mr.S.K.Mishra, Advocate for respondent no.1.
Mr. Shyam D. Dewani, Advocate for respondent no.2.
(9) WRIT PETITION NO.2322 OF 1992.
PETITIONER: Bhanudas s/o Pancham Varade,
aged about 70 years, Occu: Nil, residents
of Untkhana Dahipura Layout, near
Baidyanath Chowk, Varade Bhavan, Nagpur.
: VERSUS :
RESPONDENTS: 1. State of Maharashtra through its
Secretary, Urban Development Department,
Mantralaya, Bombay - 32.
2. The Nagpur Improvement Trust,
through its Chairman, Station Road, Sadar,
Nagpur.
3. The Divisional Officer,
C.S.E.S., Nagpur Improvement Trust, Nagpur.
4. Asit Multi-purpose Association,
Registered No.31 N/75, through its President
Shri Shyam Bhagat, Untkhana, Nagpur.
Mr.Anand Parchure, Advocate for the petitioner.
Mrs. K.S. Joshi, A.G.P. for respondent no.1,
Mr.S.K.Mishra, Advocate for respondents no.2 and 3.
Mr.Z.A.Haq Advocate for respondent no.4.
(10) WRIT PETITION NO. 822 OF 1999
P. M. G. Office Staff Cooperative
Housing Society Limited,
Madhav Nagar, Nagpur-through
its President, Madhav Nagar
Nagpur. PETITIONER.
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VERSUS
1. Nagpur Improvement Trust,
through its Chairman, Near
Liberty Cinema Building, Sadar,
Nagpur.
2. Vidarbha Cricket Association,
Opp. I. B. M. Building, Sadar,
Nagpur through its President. RESPONDENTS.
Shri A. R. Patil, Counsel for the petitioner.
Shri S. K. Mishra, Counsel for respondent No. 1.
Shri A. S. Jaiswal, Counsel for respondent No. 2.
(11) WRIT PETITION
ig NO. 1070 OF 2000
Friends Cooperative Housing
Society Ltd. Nagpur, duly registered
under the Maharashtra Cooperative
Societies Act, 1960, bearing
Registration No. HSG/NGP/123 of
1962, having its registered office at
41, Tatya Tope Nagar, Nagpur-15,
through its Secretary. PETITIONER.
VERSUS
1. The Nagpur Improvement Trust,
through its Chairman, Civil
Lines, Nagpur.
2. The State of Maharashtra,
through its Secretary,
Department of Urban Land
Development, Mantralaya,
Annexe, Mumbai-32.
3. The Nagpur Municipal
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Corporation, Nagpur,
through its Municipal
Commissioner. RESPONDENTS.
Shri. U. S. Dastane, Counsel for the petitioner.
Mr. A.S. Fulzele, A.G.P. for respondent no.2,
Shri S.K. Mishra, Counsel for respondent No.1.
(12) WRIT PETITION NO. 5145 OF 2007.
The Greater Nagpur Cooperative
Development and Housing Society
Limited, having its Head Office at
51, Alhad Jyoti Apartment, Ramkrishna
Nagar, Khamla, Nagpur-25, through
its President Chandrashekhar K.
Najpande, R/o Ramkrishna Nagar,
Khamla, Nagpur-25. .... PETITIONER.
....Versus....
1.State of Maharashtra, through its
Secretary to the Urban Development
Departments, Mantralaya, Mumbai-32,
2.Nagpur Improvement Trust, through
its Secretary, having its office at
Kingsway, Sadar, Nagpur,
3.The Corporation of the City of Nagpur,
through its Commissioner, having its
Office at Civil Lines, Nagpur,
4.Sneh Manila Vikas Sanstha, through
its Secretary, Nagpur. .... RESPONDENTS.
Mr. Anand Parchure, Advocate for the petitioner,
Mrs. K.S. Joshi, A.G.P. for respondent no.1,
Mr. S.K. Mishra, Counsel for respondent no.2,
Mr. S.V. Manohar, Counsel for respondent no.4.
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CORAM: ANOOP V. MOHTA & C.L. PANGARKAR, JJ.
DATED: AUGUST 29, 2008.
JUDGMENT (PER ANOOP V. MOHTA, J.)
The petitioners have challenged the action of
allotment of their land by Nagpur Improvement Trust (for short
“NIT”), a public body, to the public institutions and public trust
being public utility plots. The points and submissions are
common, interlinked and, therefore, this common judgment.
2. In Writ Petition No. 934/94, as averred, the petitioner
is a cooperative housing society, which has developed various
layouts and other projects successfully. The petitioner society
has purchased land admeasuring about 13.45 acres comprised
in Khasra Nos. 130/1, 3, 4 and 5 of Mouza Parsodi (Bhamti) in
Malik Makbuza rights. The land is covered by the Bhamti
Parsodi scheme of NIT.
3. The petitioner society applied to NIT for developing
the said land and also gave an undertaking to agree to have
the layout of the land as per plans, suggestions and directions
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of NIT. Pursuant to the undertaking given by the petitioner
society, NIT approved the layout of the entire land
admeasuring about 13.45 acres. Accordingly, an agreement
came to be executed between the NIT and the petitioner
society on 27.5.1977. The sanctioned layout map is a part
and parcel of the agreement.
4. The development work of the said land was almost
completed by the year 1981 and some of the members of the
society have constructed their residential houses on the plots
allotted to them. On 8.2.1982, the society requested NIT to
release entire 40,000 sq. ft. of public utility land in their favour.
The petitioner society promptly submitted all the information
required by the Nagpur Improvement Trust vide its
communication dated 22.3.1983. On 27.11.1985, the
petitioner society sent a communication along with a cheque
for Rs.30,000/- as no demand came to be raised by NIT and
sought release of said 20,000 sq. ft. of public utility land
offered by NIT vide its communication dated 24.12.1981. NIT
did not take any steps whatsoever thereafter and suddenly on
29.7.1987, after about 2 years, informed that in terms of
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clause 9 of the agreement, the society has to transfer free of
cost the public utility land reserved for primary school and,
therefore, the society should within 7 days hand over the said
land to NIT and the petitioner society should make a separate
application for the said public utility land being allotted to it.
With the said communication, the cheque of the petitioner
society for an amount of Rs.30,000/- came to be returned by
the NIT.
5. NIT issued an advertisement inviting applications from
various registered charitable public institutions and registered
trusts on or before 28.6.1991 for allotting the said land for
period of 30 years on lease. Thereafter various representations
and applications were made to NIT, however, it was rejected by
a communication dated 24.8.1993, which is also a subject
matter of this petition.
6. In Writ Petition No. 967/92, the petitioner-Society has
challenged the action of respondent no.1 and sought further
declaration that they cannot transfer or allot open space as
shown by letters “A,B,C,D,A” in Annexure-3 by bifurcating the
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same to an institution for institutional purpose. In the year
1969, the petitioner-society purchased land bearing khsara
no.87 patwari halka no.44 of Mouza Bhamti Parsodi in Nagpur
vide registered sale deeds dated 16/10/1968, 12/12/1968,
26/3/1969 and 3/4/1969 for valuable consideration. It is
submitted that the said lands previously belonged to Padole
family from whom the petitioner-Society purchased the same
as stated above. The petitioner applied to the NIT for
necessary sanction of lay out and the said lay out was
sanctioned on executing various documents including an
agreement in question. All the development work in the lay
out has been done by NIT and the cost on such development
work has been paid by the petitioner-society in full.
7. As per condition no.9 in the agreement and condition
no.4 of the Memorandum, the open spaces have to be
transferred to the respondent-Trust. Areas covered by sewer,
water pipe line, open spaces for public utility purposes have to
be transferred to the respondents. However, it is submitted
that the same has not been transferred. The tittle of the said
open spaces remains with the petitioner.
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8. The petitioner was surprised to see an advertisement
published by the respondent NIT in various local dailies of
Nagpur, whereby they wanted to transfer the land shown by
letters A,B,C,D “A” in Annexure 3 to various private institutions.
The open spaces by letters A,B.C,D “A” has been bifurcated in
three different portions and sought to be allotted to various
private institutions The said land is reserved for public utility
purpose and not for institutional purposes as per the
sanctioned layout plan. The respondent NIT wanted to transfer
the said open space reserved for public utility purpose to the
three institutions.
9. That, the petitioner thus submits that the action of the
NIT in advertising and intending to transfer on allotment of this
public utility land without there being any title, is void. The
agreement clause nos.8 and 9 are void as no law permits
transfer of public utility space open space i.e. Public utility
space to the NIT free of cost. There is no provision under the
Nagpur Improvement Trust Act nor there is any law by which
the open space in the lay out or public utility land can be
transferred like this and therefore, the entire action of
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advertising and bifurcating this land in to plots for its allotment
is clearly void and illegal and the same is liable to be set aside.
10. In Writ Petition No. 1179/93 the petitioner-Society has
challenged the action of respondent no.1 and further
declaration that they cannot transfer or allot open space as
shown by letters A,B,C,D, and D in Annexure-2 by bifurcating
the same to an institution for institutional purpose. The
petitioner-society purchased the land bearing Khasra No.78 to
82 of Mouza Bhamti Taluka District Nagpur and sale deeds were
executed on 10/4/1969 for valuable consideration, of the said
land from Padole Family. The petitioner applied to the Trust
for sanction of lay out and in order to get sanction, the
petitioner was required to execute various documents. That,
accordingly the layout plan was sanctioned. That, an
agreement in question was drawn between the Nagpur
Improvement Trust and the petitioner-society. In the
sanctioned lay out plan various open space were left in the lay
out for public convenience and specific land shown by letters
A,B,C,D and D in Annexure 2 were kept for public utility
purpose. All the development work in the lay out is being done
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by respondent-Trust and the cost of such development were
paid by the petitioner-society in full. As per one of the
condition in agreement, the open space has to be transferred
to the respondent-Trust, the area covered by sewer, water pipe
line etc., has to be transferred to the Nagpur Municipal
Corporation. The petitioner society is in possession of the land.
The title is not yet transferred.
11.
The petitioner submits that the land being reserved for
primary school, the petitioner society applied to NIT for
allotment for starting a school. The petitioner submits that in
terms of the advertisement, respondent No.2 – Halba
Mahasangh through its Executive Member Shri Asai, Civil Lines,
Nagpur applied and they have been allotted the said public
utility land.
12. The petitioner has challenged the said action on the
part of respondent-Trust by filing present petition. This
Honourable court by order dated 30.4.1993 passed order of
status quo restraining the respondents from alienating this land
and further restraining from making new construction over the
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said public utility land and also disturbing the possession of the
petitioner over the said land. However, this Honourable Court
on 14th June, 1993 passed the following order –
“It is restricted to the submission of Respondent no.2
is making the construction at its own risk and in the event the
petition succeeds the Respondent no.2 shall not claim any
compensation”.
We accept as undertaking by the Respondent no..2.
Interim relief is refused,
ig Ad-interim order earlier made shall
stand vacated. Rejection of interim relief is subject to the
undertaking depending upon final result is subject to the
undertaking depending upon final result in the petition. Shri
Parsodkar for petitioner says that open land and public utility
land left by the petitioner is in excess of the land. If that be so,
it is to the petitioner to get their land modified so as to utilize
the excess land for the purpose of making additional plots
Order accordingly”
That in view of the above order, Halba Maha Sangh has
constructed Community Hall. The same has been in use since
then.
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13. It is, therefore, submitted that the clause and the
entire action of advertising and bifurcating this land in to plots
are void and illegal and be set aside.
14. In Writ Petition No. 3085/98, the petitioner has
challenged the action of respondent based upon the agreement
dated 27/1/1970 executed between the petitioner and the
respondent NIT. The petitioner Society was registered under
Maharashtra Cooperative
ig Societies Act vide registration
No.246. On 23/2/1968, the petitioner-society purchased land
area 6.81 Hects. Kh.No.15 and 17 of mouza Khamla from one
Shri Vithoba Nigote. On 21/3/1969 the sub-Divisional Officer,
Nagpur granted permission for change of user of the land from
Agriculture to non-agricultural purpose. Respondent no.1 has
sanctioned the layout vide agreement dated 27/1/1970. As per
norm, some portion of the land is reserved for public utility
purpose like primary school or civic center. It is agreed
between the petitioner and respondent no.1 that 10% of the
area of total plots shall be kept reserved and transferred in
favour of respondent no.1 and 2 free of cost for primary
school, public institution and public utility purpose. In
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pursuance to this agreement, some land is kept reserved for
primary school in the layout of the petitioner-society. The
petitioner has requested respondent no.1 to release the said
land in its favour to construct and/or to have primary school or
such other educational institution. In may 1997, the office
bearers of the petitioner society found some work of levelling of
ground and digging of well in the portion kept reserved for
public utility purpose i.e. primary school. On enquiry, the office
bearers of the petitioner society came to know that the said
work had started by respondent no.3 – association. On
19/5/1997, the petitioner protested this allotment of land to
respondent no.3. On 16/6/1997, respondent no.1 confirmed
allotment of land in favour of respondent no.3. The work of
levelling was stopped for some period but later on it was
recommenced. Hence, this petition.
15. In Writ Petition No. 1784/92, the petitioner is a Society
registered under the Societies Registration Act. Basically it
consists of the residents of Laxmi Nagar locality. By this
petition, the challenge is to an advertisement dated 18.01.1992
proposing allotment of plot no. 301/1 to 5 issued by
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respondent-NIT. By an agreement subsequently, as it was
released/allotted in favour of respondent no. 2-Society. The
challenge was raised accordingly. The challenge is same in the
present petition also on similar lines with other petitions
against NIT with regard to the unauthorised
allotment/distribution of plots not owned by NIT; there is no
question of automatic transfer agreement and as such the
action is null and void and it is beyond the scope and power of
NIT. The whole action need to be quashed and set aside as NIT
grabbed the land free of cost. By order dated 25.08.1992, this
Court has granted order of status quo. The status quo order
has been continuing till this date. Respondent no. 1/NIT by
their written submission resisted the case on all counts on
similar lines along with other petitions and accordingly heard
also.
16. In Writ Petition No. 1034/95, the petitioners have
challenged the validity of action of respondent no. 2 NIT of
allotting open space from Khasra no. 65, Mouja Ajni in favour of
respondent no. 3. Respondent no. 2 admittedly entered into an
agreement with respondent no. 3 for sanction of the layout on
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21.02.1985 and pursuance to the agreement, the petitioner
agreed to transfer the open space in favour of respondent no 2.
The said land accordingly allotted to respondent no.3. By order
dated 07.04.1995, this Court has granted order of status quo as
the respondents commenced construction on the land/plot.
The status quo is in force. As the challenge revolves around
the identical agreement, therefore, the petitioners have
challenged the same; being without jurisdiction Authority and
contrary to the Act and; therefore, the whole action is null and
void. The respondents, by their reply resisted the same.
17. In Writ Petition No. 1512/2000, the petitioner has
challenged the action of respondent based upon the
agreement dated 9/7/1979 executed between the petitioner
and the respondent NIT. The petitioner Society is a Housing
Society registered under the Maharashtra Cooperative
Societies Act. The Society has developed various layouts and
flat schemes for its members. In one of its layout at
Deendayal Nagar, Nagpur, the Society intended to use its
public utility land for construction of hostel of working women
or for adult education activity and accordingly asked for
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necessary permission from respondents. However, respondent
vide notification dated 31/3/2000 and corrigendum dated
7/4/2000 is seeking to acquire the said public utility land in the
layout of the petitioner society for allotment to some other
trusts/societies for being used for public utility, denying the
claim of the petitioner. The petitioner has also challenged
excess reservation sought to be made for public utility purpose
in the land of the Society. Hence, this petition. The common
submissions are raised along with the other petitions based
upon the similar clauses and agreements in question.
18. In Writ Petition No. 1136/93 the petitioner has
challenged the action of respondent based upon the agreement
dated 11/3/1970 in question, executed between the petitioner
and respondent NIT. The petitioner Society was formed and
registered under Maharashtra Cooperative Societies Act vide
registration No. NGP/HSG/202. The object of the Society is to
provide houses/Flats to its Members. On 17/9/1966, in
furtherance of the object of the Society, the Society purchased
land in S.No.90/3 admeasuring 11.84 acres in village Ajni,
P.H.No.9 from Shri S.S.Mahajan of Nagpur. On 20/9/1962, the
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vendor Shri S.S. Mahajan had already obtained permission
from S.D.O., Nagpur for converting this land for non-agricultural
use. On 16/1/1969 the land in question came within the
purview of Ajni Street Scheme of Respondent No.1 and
sanctioned by State Government. On 11/3/1970, an Agreement
was executed between the petitioner society and the N.I.T. for
sanction of layout as the land came under the control of
Respondent no.1 because of sanctioned Street Scheme.
Thereafter layout was sanctioned.
ig On 13/2/1993, respondent
no.1 issued a notice asking the petitioner Society to demolish
the structure constructed on public utility plot marked A in Site
Plan, which was constructed for library. Similar notice was
being issued on 15/12/1990 also which was replied by
petitioner society on 27/12/1990. In March, 1993, NIT
demolished the structure marked ‘A’ in the site plan. Hence
this petition, challenging the action of respondent no.1 of
selling/leasing out the plot to respondent no.2, on similar
grounds.
19. In Writ Petition No. 2322/92, the petitioner has
challenged the action of respondent based upon the
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24
agreement dated 20/8/1973 in question executed between the
petitioner and respondent NIT. As per petitioner, on
19/10/1954, the petitioner and Mr. Patil purchased an
agricultural field by a registered sale deed from its original
owner. On 2/1/1964, the said field diverted to non-agricultural
use by the permission of the S.D.O. Nagpur. On 20/8/1973,
the agreement was executed between the petitioner Shri Patil
and respondent no.2. On 23/2/1984, respondent no.2
published an advertisement in news paper ‘Lokmat” invited the
offers from the public for allotting the said public utility land.
On 16/3/1985, the petitioner wrote a letter to Executive Officer,
NIT Nagpur regarding the advertisement. On 4/10/1992,
respondent no.2 and 3 again issued a letter to petitioner asking
to handover the possession. The petitioner replied to the letter
dated 4/10/1992. On 4/9/1992, respondent no.4 has informed
the circle Engineer – II that it is holding possession of the
public utility and open land. Hence, this petition on identical
grounds with other writ petitions.
20. In Writ Petition No. 822/99, the petitioner Cooperative
Housing Society has challenged the action of respondent
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25
no.1 NIT of allotting a plot in favour of respondent No. 2
pursuance to an agreement dated 27/01/1970 between
petitioner and NIT. The petitioner is the Cooperative Housing
Society registered under the Maharashtra Cooperative
Societies Act, 1960 having its registration No. 1265, working
since last 38 years. The petitioner had developed four lay outs
in Nagpur City. All these layouts are approved and sanctioned
by the NIT. The petitioner had purchased agricultural land
vide Sale Deed dated 14/06/1968 having Khasra No. 130 of
Mouza Parsodi. The land is admeasuring 10 acres.
Respondent No.1 had sanctioned and developed the layout.
The copy of the sanctioned plan is at Annexure ‘B’. While
sanctioning the plan, respondent No.1 left open place reserved
for Primary School, and an open area. Respondent No. 1 also
entered into an agreement in question of development with
petitioner on 27/01/1970. Since last 29 years, the open land is
in possession of the petitioner Society, being absolute owner
by virtue of the Sale Deed dated 14/06/1968. All of a
sudden without responding to the earlier correspondence
the open land owned by the petitioner allotted to respondent
No. 2 without the consent of the petitioner. The petitioner,
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26
therefore, immediately sent a letter on 14/12/1998 and legal
notice through counsel on 20/12/1998, but there is no reply
from respondent No.1. The main challenge of the petitioner
revolve around Clause 10 of the Agreement and action arising
out of the same claiming it to be illegal, arbitrary, malafide and
bad in law, void ab-initio and further it is contrary to the
guidelines of the Government of Maharashtra dated
10.06.1996.
21. In Writ Petition No. 1070/2000, petitioner-Cooperative
Housing Society has challenged the decision and action of NIT
of taking action pursuance to agreement dated 10.03.1970
between petitioner and NIT claiming allotment of the plot to the
exclusion of other Education Society. The petitioner adopted all
the grounds and arguments made in Writ Petition No. 934 of
1994 Friends Cooperative Housing Society Vs. Nagpur
Improvement Trust and 3 Others.
22. In Writ Petition No. 5145/07, the petitioner has
challenged the action of respondent no.2 NIT in refusing to allot
the public utility land belonging to the petitioner society to the
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27
society itself and instead allotting it to respondent no.4 society.
On 23.8.1965 the petitioner society had purchased land
admeasuring 9.38 acres of Khasra No.22 of Mouza Khamla
from its original owner by a sale-deed. On 30.3.1966 the
diversion of the said land to non-agricultural use was permitted
by Sub-Divisional Officer, Nagpur.
23. The layout plan for development of the land was
sanctioned by Respondent no.2 and an agreement was entered
into between the petitioner society and NIT. As per the
agreement the petitioner has reserved 10% of the total land
admeasuring about 14941.60 sq. ft. for public utility purpose
and transferred the same to NIT free of cost. On 18.6.1982 the
petitioner had applied for re-allotment of the land and on
making such application NIT had vide its communication dated
18.6.1982 demanded an amount of Rs.22,413/- @ Rs.1.50 per
sq. ft. from the petitioner and the said amount was deposited
by the petitioner. On 15.11.1990 the NIT published an
advertisement for allotment of the Public Utility Land and out of
the total public utility land a portion of land was allotted to one
Nagarjun Medical Trust. On 14.6.1996 the petitioner had
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28
preferred a Writ Petition No. 539/1994 challenging the said
allotment. However, this Court vide order dated 14.6.1996
refused to entertain the petition. On 15.3.1999 & 30.1.2000
the NIT published an advertisement in the newspaper for
allotment of remaining portion of public utility land. On
19.4.2000 the petitioner society made an application for
allotment of the remaining portion of public utility land. On
19.4.2005 the petitioner issued a legal notice to the
respondents for allotment of the remaining portion of land to
the petitioner society. The petitioner made number of
representations to the respondents regarding allotment of the
land. However, the respondent NIT did not consider the
request of the petitioner and allotted the said land to some
other society. The petitioner therefore, made an application to
NIT on 17.7.2007 under the Right to Information Act. N.I.T.
vide its letter dated 8.8.2007 informed that the remaining
portion of land admeasuring about 961.58 sq. mtrs. Has been
allotted to one Sneh Mahila Vikas Sanstha. The petitioner has,
therefore, challenged this action of the respondent Trust by
way of this petition.
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29
24. Respondent No.2 NIT resisted the petition by its reply
dated 12.12.2007. Respondent no.4 has also opposed the
petition on various grounds. The parties have filed their
Written Submissions also.
25. In view of this, principally following interlinked points
arise for consideration :-
a) Whether the clause contained in the agreement entered into
between the various petitioners and NIT by which the
petitioners have voluntarily agreed to surrender a portion of
their land from the layout to NIT free of cost for being used
for public purpose is unenforceable, void being
unconscionable, grossly unequal in bargaining power and
opposed to public policy ? …..No.
b) Whether anything including the decision reported in AIR
1995 SC 470 (Pt. Chaitram’s case) precludes NIT from
receiving and allotting the land voluntarily surrendered by
the petitioners without paying any monetary compensation
and valid transfer of the land in view of the binding
agreements/undertakings in the facts and circumstances of
the case ? ……No.
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30
c) Is the alleged clause and contract void and, therefore, needs
any declaration to that effect ? …..No.
d) Is the contract void for want of consideration/registration ?
….No.
e) Whether the principles of law of limitation, delay, laches,
waiver and other equitable principles apply to the present
Writ Petitions ? …Yes.
f) Is NIT legally entitled to allot/lease out the said land to
public institutions or public trusts by following the process of
law ? ……Yes.
g) Whether the petitioners have first or exclusive right to
allotment of the land in question ? …….No.
The common reasons :-
26. Writ Petition No. 5145/07 is not maintainable in view
of the decision in Writ Petition No. 539/94 which was between
the same parties. While dismissing the earlier Writ Petition,
this Court has observed as under :-
“(A) As per initial agreement with the Nagpur
Improvement Trust on 5.2.1971 vide Clause 9, it was
specifically agreed by the petitioners society to hand
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31over the public utility plot in favour of the Nagpur
Improvement Trust free of cost. The validity of the
said clause has not been challenged at the relevant
time. (Emphasis supplied),
(B) Sometime in 1982, the petitioner applied
for re-allotment of the said plot and offered certain
price. However, the same was not finally
materialized. This was also not challenged.”
It is clear that the earlier Writ Petition was dismissed on the
ground of delay and laches. There was no challenge to the
validity of Clause 9 of the agreement between the petitioner
and NIT in question, at the relevant time. The said judgment
has attained finality and, therefore, binds the parties. The
contention now raised and reagitated in the present petition is
impermissible. (Gorie Gouri Naidu (Minor) and another
.vs. Thandrothu Bodemma & others : (1997) 2 SCC 552).
The Writ Petition is liable to be rejected also for the reasons
given below.
27. All the points are interlinked and interconnected,
therefore following common reasons :-
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32The clause in the agreement is not unenforceable, void, unconscionable, unequal and opposed to public policy :- The relevant clause 8/9/10 of the respectiveagreement (for short “the clause”), identical in all the
agreements, is reproduced as under:-
“(9) The party no.2 shall reserve in the
layout the percent of the total land or more as may
be required, and transfer the same to the party no.1
free of cost, and duly developed, for public utility
purpose and for such other purpose the party no.1
may determine, and such lands according to its
rules and regulations.”
The above quite similar clause is under challenge in all the writ
petitions.
28. The relevant Sections 23 & 25 of the Contract Act read
as under:-
“Section 23 : What consideration and objects
are lawful, and what not :- The consideration or
object of an agreement is lawful, unless —-
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33it is forbidden by law; or
is of such a nature that, if permitted, it
would defeat the provisions of any law; or is
fraudulent; or
involves or implies, injury to the person or
property of another; or
the Court regards it as immoral, or
opposed to public policy.
In each of these cases, the consideration or object
of an agreement is said to be unlawful. Every
agreement of which the object or consideration is
unlawful is void.”
“Section 25. Agreement without
consideration, void, unless it is in writing and
registered or is a promise to compensate for
something done or is a promise to pay a debt
barred by limitation law – An agreement made
without consideration is void, unless–
1)it is expressed in writing and registered under
the law for the time being in force for the
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34registration of documents and is made on
account of natural love and affection between
parties standing in a near relation to each other;
or unless,
2) it is a promise to compensate, wholly or in part,
a person who has already voluntarily done
something for the promisor, or something which
the promisor was legally compellable to do or
unless,
3)it is a promise, made in writing and signed by the
person to be charged therewith, or by his agent
generally or specially authorised in that behalf, to
pay wholly or in part a debt of which the creditor
might have enforced payment but for the law for the
limitation of suits.
In any of these cases, such an agreement is a
contact.
Explanation 1.– Nothing in this section shall affect
the validity, as between the donor and donee, of
any gift actually made,
Explanation 2.– An agreement to which the consent
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35of the promisor is freely given is not void merely
because the consideration is inadequate; but the
inadequacy of the consideration may be taken into
account by the Court in determining the question
whether the consent of the promisor was freely
given.”
29. The Clause 16 of the agreement (in Writ Petition No.
934/94):-
“16. It is hereby agreed between the parties
hereto that in the event of breach on the part of party
no.2 of any of themes expressed herein or his failure
to comply with any of the terms expressed herein
mentioned the party no.1 will not grant permission
for constructing the buildings or any plot(s) in this
layout or in any part thereof.”
30. The material Sections and Scheme of the Nagpur
Improvement Trust Act (the “NIT Act”) are :-
“Section 58 : Power to purchase or lease land by
agreement:
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36The Trust may enter into an agreement with any
person for the acquisition, by purchase, lease or exchange by
the Trust from such person, of any land within the area
comprised in a sanctioned scheme.”
“Section 68 : Abandonment of acquisition in
consideration of special payment :
1)Wherever in any area comprised in any
improvement scheme under this Act the State
Government has sanctioned the acquisition of land
which is subsequently discovered to be unnecessary
for the execution of the scheme, the owner of the
land, or any person having an interest therein may
make an application to the Trust (requesting that the
acquisition of the land not required for the purposes
of the scheme should be abandoned on his
executing an agreement to observe conditions
specified by the Trust in respect of the development
of the property and to pay a charge to be calculated
in accordance with sub-section (2) of section 69 of
the Act.
2) The Trust shall admit every such application if it —
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37a) reaches it before the time fixed by the Deputy
Commissioner under section 9 of the Land
Acquisition Act, 1894, for making claims in
reference to the land, and
b) is made by any person who has an interest in
the land or holds a lease thereof, with an
unexpired period of seven years,
3) On the admission by the Trust of any such
application, it shall forthwith inform the Deputy
Commissioner, and the Deputy Commissioner shall
thereupon stay for a period of three months all
further proceedings for the acquisition of the land,
and the Trust shall proceed to fix the conditions on
which the acquisition of the land may be abandoned.
4)When an agreement has been executed in
pursuance of sub-section (1) in respect of any land
the proceedings for the acquisition of the land shall
be deemed to be abandoned,
5)The provisions contained in sections 70, 71, 72, 73
and 74 relating to the assessment, interest, recovery
and payment of betterment charge and civil suits
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38shall apply mutatis mutandis to the assessment,
interest, recovery and payment of abandonment
charge and civil suits in respect thereof.”
“S. 45. Notification of sanction of improvement
scheme and other regarding vesting of property
in Trust :-
1) Whenever the State Government sanctions an
improvement scheme, it —
a) shall announce the fact by notification and,
except in the case of a deferred street
scheme, development scheme, or future
expansion or improvement scheme, the Trust
shall forthwith proceed to execute the same,
b) may order that any street, square, park, open
space or other land, or any part thereof, which
is the property of the Government and
managed by the Central Government or the
State Government shall, subject to such
conditions as it may impose, vest in the trust for
the purpose of the scheme.
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392) The publication of a notification under sub-section
(1) in respect of any scheme shall be conclusive
evidence that the scheme has been duly framed and
sanctioned.”
31. NIT is created by the State Government for the
improvement of the city of Nagpur through its various
improvement schemes. Section 26 of the NIT Act empowers
the Trust to frame various schemes.
ig Section 39 provides that such schemes framed by the NIT are required to be published by notification. Section 39 is equivalent to Section 4 of the Land Acquisition Act. The provisions ofSections 40, 41, 42, 43 & 44 further clarify that the
improvement schemes are sanctioned by the Government by
notification issued under Section 45 of the NIT Act which is
equivalent to Section 6 of the Land Acquisition Act. The
alteration/improvement to the scheme is permissible under
Section 46 of the NIT Act. NIT, therefore, has jurisdiction over
the areas/lands which fall within the sanctioned improvement
schemes being part and parcel of notification under Section 6
which is equivalent to Section 45 of the NIT Act. Having once
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40sanctioned the scheme by Government, the NIT need to
implement the said scheme as per the mandate of Section 45
of the NIT Act. NIT thereafter can proceed to implement the
scheme by acquiring the entire land and further can use the
said land for the purpose of scheme. The Trust is further
entitled to utilise/dispose of the remaining land as per its Land
Disposal Rules (for short “the NIT Rules”). Section 76 of the
NIT Act permits NIT to dispose of the land. Section 76 reads as
under :-
“76. Power to dispose of land :- Subject to
Rules made by the State Government under this Act,
the Trust may retain or may let on hire, lease, sale,
exchange or otherwise dispose of any land vested in
or acquired by it under this Act.”
It is clear that Section 58 of NIT Act empowers/authorises the
Trust to enter into an agreement with any person for the
acquisition, by purchase, lease or exchange by the Trust from
such person of land within the area comprised in a sanctioned
scheme.
32. In totality, the Act provides and permits NIT to enter
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41into an agreement with any person. The petitioner society
and/or individual person have accordingly knowing fully the
scheme of NIT and purpose and object of the same voluntarily
without any influence and/or misrepresentation of any kind by
NIT, approached NIT and voluntarily entered into the
commercial transaction/agreement in question. The
application was moved/filed for sanction of the private layout.
The said private layout was sanctioned and the petitioner
society/person in view of the agreed terms acted upon and
enjoyed all the benefits including selling of the plots to its
respective members. The said plot owners/members
individually applied for obtaining sanction knowing fully the
terms and conditions of those clauses. The subsequent
purchasers/members also understood the said clauses and
obtained the individual sanctions. The respective
members/individual members have further utilised the said
plots/layouts and constructed the buildings/flats and enjoyed
all the benefits in view of the said agreement and sanction of
the private layout by NIT.
33. There is nothing on record to justify their challenge
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42now to the said agreements and basically the Clause. The
petitioners are admittedly not challenging the whole
agreement. The petitioners have admittedly acted upon and
have been enjoying the benefits pursuant to the said
agreement till this date.
34. We have noted that there is no specific pleading as to
how the contract or the clause in the contract is void at the
instance of the petitioners, who entered into such commercial
contract with full knowledge of those clauses/conditions and
factually acted upon the same till the date. Therefore, in the
absence of pleading, material and proof, such plea is
unacceptable. (State of Kerala & another .vs. M.A.
Mathai (2007) 10 SCC 195) and Union of India .vs. Surjit
Singh Atwal (1979) 1 SCC 520.
35. The present contract, unless set aside or declared to
be void by the Court, is binding especially to the parties who
voluntarily entered into such contracts acted upon and enjoyed
all the benefits. Sultan Sadik .vs. Sanjay Raj Subba and
others (2004) 2 SCC 377, Velamuri Venkata Sivaprasad
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43(Dead), By Lrs. .vs. Kothuri Venkateswarlu, (Dead) By
Lrs. and others (2000) 2 SCC 139, Tayyabbhai,
Mohammedbhai Bagasarwalla and another 1997(2)
Mh.L.J. 1.
36. Such terms and conditions, therefore, in no way can
be said to be unconscionable and void terms in contract as
submitted based upon Central Inland Water Transport
Corporation Limited .vs. Brojonath Ganguly reported in
(1986) 3 SCC 156 & LIC of India and another .vs.
Consumer Education and Research Centre and others
reported in (1995) 5 SCC 482. This can never be said to be
an unconscionable bargain as noted, the terms and conditions
have been settled over the years which are formed by consent
with the persons having commercial interest and accordingly, it
has been widely adopted and utilised by people at large. The
terms and conditions, therefore, cannot be said to be unfair
and unreasonable, especially when the parties bargaining
powers and authority throughout was not one sided and/or
unequal.
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4437. There is no substance in argument that there was
gross inequality of bargaining power. In view of above,
reliance as placed on Premsingh and others .vs. Birbal and
others (2006) 5 SCC 353, Yamunabai Anatrao Adhav .vs.
Anantrao Shivraj Adhav (1988) 1 SCC 530 that there is no
need of a decree to set aside such document as Clause 9/8 is
void ab initio, especially when the agreement as well as clause
in question are clear and there is no ambiguity at any point of
time.
The nature of transaction in the background read with
the surrounding and attending circumstances and especially
when the document/agreement in question is a commercial
document, in no way said to be unclear or with any infirmity or
ambiguity (State Bank of India and another .vs. Mulla
Sahakari Sakhar Karkhana Limited (2006) 6 SCC 293,
Sappani Mohammad Mohideen .vs. R.V.
Sethusubramania Pillai (1974) 1 SCC 615.
38. The terms and conditions in questions are binding
between the parties. (Bihar State Electricity Board, Patna
and others .vs. M/s. Green Rubber Industries and others
: AIR 1990 SC 699). They have already acted upon those
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45terms and conditions. Therefore, the entire agreement need to
be respected in totality. There is no question of reading
and/or severing any unequal clause in isolation or in parts. The
party to an agreement cannot be allowed to approbate and
reprobate as expressed by the Supreme Court in the case of
Harshad Kumar Natwarlal Dalal and others (1981) 1 SCC
538. Paragraph 48 is reproduced below :-
“48. It is a fundamental principle of general
application that if a person of his own accord, accepts
a contract on certain terms and works out the
contract, he cannot be allowed to adhere to and abide
by some of the terms of the contract which proved
advantageous to him and repudiate the other terms of
the same contract which might be disadvantageous to
him. The maxim is qui approbat non reprobat (one
who approbates cannot reprobate). This principle,
though originally borrowed from Scots Law, is now
firmly embodied in English Common Law. According
to it, a party to an instrument or transaction cannot
take advantage of one part of a document or
transaction and reject the rest. That is to say, no
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46party can accept and reject the same instrument or
transaction (Per Scrutton, L.J., Verschures Creameries
Ltd. v. Hull & Netherlands Steamship Co.; see Douglas
Menzies v. Umphelby; see also Stroud’s Judicial
Dictionary, Vol. I, page 169, 3rd Edn.).
The Apex Court has further reiterated the principle of
approbate and reprobate and dismissed the matter on that
count also. (Kashmir Singh .vs. Union of India and other;
(2008) 7 SCC 259).
39. In the case of Prem Singh and others .vs. Birbal
and others (2006) 5 SCC 353, the Supreme Court has held
that with respect to both void, as well as voidable transactions,
the action has to be brought within the period of limitation.
We cannot overlook the fact that in the present case, the
petitioner has invoked Article 226 & 227 of the Constitution of
India and raised these challenges after more than 11 years.
Therefore, the facet of the period of limitation though not
strictly applicable to writ jurisdiction, still in cases like this the
principle of filing of suit for cancellation of such transaction as
governed by Article 59 even if any just cannot be overlooked.
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47The relevant Articles of Limitation Act are Article 58 (any
declaration) or Article 59 (for cancellation or setting aside of
instrument) or Article 113 (residuary clause). Therefore, in all
these cases, limitation would not be more than 3 years. The
petitions, therefore, suffer from grave delay which is not
explained at all. State of Madhya Pradesh and another
.vs. Bhailal Bhai and others AIR 1964 SC 1006.
40.
The Apex Court in State of Madhya Pradesh
(supra) has observed in paragraph no.21 as under :-
“21.The learned Judges appear to have failed to notice
that the delay in these petitions was more than the
delay in the petition made in Bhailal Bhai’s case, 1960
M.P.C. 304 out of which Civil Appeal No. 362 of 62 has
arisen. On behalf of the respondents-petitioners in
these appeals (C.A. Nos. 861 to 867 of 1962) Mr.
Andley has argued that the delay in these cases even
is not such as would justify refusal of the order for
refund. We argued that assuming that the remedy of
recovery by action in a civil court stood barred on the
date these applications were made that would be no
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48reason to refuse relief under Art. 226 of the
Constitution. Learned Counsel is right in his
submission that the provisions of the Limitation Act do
not as such apply to the granting of relief under Art.
226. It appears to us however that the maximum
period fixed by the legislature as the time within
which the relief by a suit in a civil court must be
brought may ordinarily be taken to be a reasonable
standard by which delay in seeking remedy under Art.
226 can be measured. This Court may consider the
delay unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy
but where the delay is more than this period, it will
almost always be proper for the Court to hold that it is
unreasonable. The period of limitation prescribed for
recovery of money paid by mistake under the
Limitation Act is three years from the date when the
mistake is known. If the mistake was known in these
cases on or shortly after January 17, 1956 the delay in
making these applications should be considered
unreasonable. If, on the other hand, as Mr. Andley
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49seems to argue, that the mistake discovered much
later this would be a controversial fact which cannot
conveniently be decided in writ proceedings. In either
view of the matter, we are of opinion that the orders
for refund made by the High Court in these seven
cases cannot be sustained.”
41. The Apex Court in Union of India .vs. Surjit Singh
Atwal reported in (1979) 1 SCC 520 refused to allow plea of
illegality of the agreement after 13 years even in a civil suit. In
the present facts and circumstances, there is no case at all to
allow to raise such pleas restricted only to the Clause of the
agreement after more than 13 to 20 years. It is not correct
submission that no limitation would be applicable in the event
the transaction/agreement is void (Prem Singh (supra). In
the present case, the challenge is raised by invoking the writ
jurisdiction only to the Clause of the binding agreement.
It is not the case like a decree being void or nullity at the
inception as a whole. The Apex Court has further clarified in
Eastern Coalfields Limited .vs. Dugal Kumar; 2008 (10)
SCALE 449 that the delay or laches on the part of the
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50petitioner can be considered at the time of final hearing also
whether relief should be granted in favour of such petitioner or
not. Inordinate delay, in the present case, is also an additional
factor to refuse to exercise discretion in favour of the
petitioner.
42. When the parties entered into agreement, they were
fully aware of the nature of transaction, conditions and
respective obligations. There was no objection raised at any
point of time while entering into such agreement and even
thereafter when petitioners and such other persons who based
upon the said agreement got the benefit out of the same. We
cannot read the clauses in isolation. We have to read the
whole agreement in question. It is very clear even from the
provisions of the Contract Act that the consideration of any
such agreement was permissible and not unlawful and/or not
prohibited by law and was not to defeat the provisions of any
law or is fraudulent and/or is immoral or opposed to public
policy.
43. The submissions, that such contract and especially
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51the Clause is void, in view of provisions contained under
Section 23/25 of the Indian Contract Act being opposed to
public policy; violative of fundamental rights of the petitioner;
violative of the right of property of petitioner/society; because
of unequal bargain power; being forbidden by law and further
in view of Section 25 of the Contract Act, as the agreement to
transfer is without consideration and the same was not
registered, have no force.
44. We have noted that there are no averments of undue
influence and/or misrepresentation or any sort of coercion or
threat at the time of entering into the agreement in question
by the petitioner with NIT. There is no justification whatsoever
on record as to why they have not questioned and or
challenged the said clause at an earlier stage.
45. There is substance in the argument of
respondents/allottees that the doctrine/principle of waiver also
applies in cases like this. The petitioners and such other
persons took conscious decision to enter into such agreement
and bind themselves to the terms and conditions. Therefore,
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52whatever rights even if any they have voluntarily waived and
abandoned as there was nothing wrong at the relevant time
and even otherwise to enter into such agreement as it was
within permissible limits of both the parties.
46. The doctrine/principle of waiver, while referring to an
earlier judgment reported in 1959 Supp 2 SCR 217 (Waman
Shriniwas Keni versus Ratilal Bhagwandas & Company) has
been defined by the Hon’ble Apex Court in Paragraph No.5 in
the case of Diwan Singh .versus. Champat Singh & Ors.,
reported in 1969 (3) SCC 445 as below :
“waiver is the abandonment of a right which normally
everybody is at liberty to waive. A waiver is nothing else it
amounts to release. It signifies nothing more than an intention
not to insist upon the right.”
47. The Apex Court in the case of Satyanarayan versus
Yelloji Rao, AIR 1965 Supreme Court, 1405 has explained
the said principle in Paragraph No.11, as below :-
“We have used the expression waiver in its legally
accepted sense, namely,
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53“waiver is contractual, and may constitute a cause of
action: it is an agreement to release or not to assert a right.”
48. The principle of waiver is based on the maxim of law
“quilibet potest renunciare juir pro se introducto” which
means, “an individual may renounce a law made for his special
benefit”. (Reference : 1994 (4) SCC 422.
49.
The Apex Court in Sikkim Subba Associates vs.
State of Sikkim reported in (2001) 5 SCC 629 further
elaborated and reiterated the meaning of “waiver” and
“consideration” in reference to an agreement with the State in
following words by observing that “he who seeks equity must
do equity” :-
“Waiver involves a conscious, voluntary and
intentional relinquishment or abandonment of a
known, existing legal right, advantage, benefit, claim
or privilege, which except for such a waiver, the party
would have enjoyed. The agreement between the
parties in this case is such that its fulfilment depends
upon the mutual performance of reciprocal promises
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54constituting the consideration for one another and
the reciprocity envisaged and engrafted is such that
one party who fails to perform his own reciprocal
promise cannot assert a claim for performance of the
other party and go to the extent of claiming even
damages for non-performance by the other party.”
In the present case, we have no doubt that there are reciprocal
promises/obligations which are required to be performed
and/or followed by the parties.
ig Admittedly, the agreement is not one sided. The petitioners have voluntarily entered intocontract and already acted upon and now avoiding to perform
their part of the obligations by challenging the Clause of the
agreement without any basic pleading and prayer. The
submission, therefore, that there was no consideration paid or
received by the person like the petitioner has no force. The
reciprocal obligation, in the facts and circumstances of the
case, itself falls within the ambit of the term “consideration” as
per the Contract Act. Knowing fully the terms and conditions
both the parties have abandoned and waived their various
rights and acted upon the said agreement voluntarily; firstly,
by surrendering the portion of the land to the Trust voluntarily
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55for public purpose. NIT has released the property from
acquisition which was admittedly notified pursuant to Sections
31, 37 & 46 of the NIT Act. There is no dispute that as per
Section 45 of the NIT Act, once the land/scheme is notified
which is conclusively of duly formed and sanctioned scheme,
NIT pursuant to this policy and agreement permitted the
person like the petitioner to develop the layouts and further
permitted to be sub-divided into plots. In totality, the object of
releasing the property from acquisition and then getting the
same portion of land from the land owner. The Trust has been
utilising and allotting the said portion of surrendered land for
charitable and public purpose. There is nothing to show that
the sanctioned scheme and/or lands and layouts are contrary
to the development plan. In view of this, there is no force in
contention that the agreement and/or clause is void for want of
consideration and it is beyond or opposed to public policy.
50. In Babulal Verma .vs. Surat Municipal Corporation reported in 2008 (3) SCALE 206 : InHalsbury’s Law of England, Volume 16(2) 4th Edition, para 907,
it is stated :-
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56“The expression ‘waiver’ may, in law, bear
different meanings. The primary meaning has been
said to be the abandonment of a right in such a way
that the other party is entitled to plead the
abandonment by way of confession and avoidance if
the right is thereafter asserted, and is either express
or implied from conduct. It may arise from a party
making an election, for example whether or not to
exercise a contractual right… Waiver may also be by
virtue of equitable or promissory estoppel; unlike
waiver arising from an election, no question arises of
any particular knowledge on the part of the person
making the representation, and the estoppel may be
suspensory only…. Where the waiver is not express,
it may be implied from conduct which is inconsistent
with the continuance of the right, without the need for
writing or for consideration moving from, or detriment
to, the party who benefits by the waiver, but mere
acts of indulgence will not amount to waiver, nor may
a party benefit from the waiver unless he has altered
his position in reliance on it.”
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57In the present case, as we have noted both the parties have
altered their position. The petitioners have already got the
benefit out of the same. This is a case of express waiver. The
legal principle emerging from these decisions is also stated in
Craies on Statute Law (6th Edn.) at page 369 as follows :-
“As a general rule, the conditions imposed by
statutes which authorise legal proceedings are
treated as being indispensable to giving the court
jurisdiction.
But if it appears that the statutory
conditions were inserted by the legislature simply for
the security or benefit of the parties to the action
themselves, and that no public interests are
involved, such conditions will not be considered as
indispensable, and either party may waive them
without affecting the jurisdiction of the court.”
Applying the above principles to the present case, it
must be held that the benefit of notice provided under the Act
and Rules being for the benefit of the Appellant in which no
public interests are involved, he has waived the same.”
In the present case also, the petitioners waived the rights
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58based upon the voluntarily agreed terms and conditions of the
contract. There is nothing illegal and/or against the public
policy if a party agreed to particular terms by abandoning or
waiving his rights and accordingly got the benefits also.
51. A similar conclusion was reached in the case of
Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229], and the
principle has been stated far more precisely, in the following
words :
“9. The principle of waiver although is akin to the
principle of estoppel; the difference between the two,
however, is that whereas estoppel is not a case of
action; it is a rule of evidence; waiver is contractual
and may constitute a cause of action; it is an
agreement between the parties and a party fully
knowing of its rights has agreed not to assert a right
for a consideration.
10. A right can be waived by the party for whose
benefit certain requirements or conditions had been
provided for by a statute subject to the condition that
no public interest is involved therein. Whenever
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59waiver is pleaded it is for the party pleading the
same to show that an agreement waiving the right in
consideration of some compromise came into being.
Statutory right, however, may also be waived by his
conduct.”
[See also Bank of India v. O.P. Swarnakar (2003) 2
SCC 721].
52.
In totality, therefore, the petitioners through their
conduct have waived their rights. The conduct operates
against them with respect to ascertaining a right over a portion
of the land in question.
53. In this background, it is worth to mention the
observations given by the Apex Court in Babulal (supra) to
answer all the basic contentions as raised in the present
matter.
“27. We are, however, not unmindful of the
fact that a statute of town planning ex facie is not a
statute for acquisition of a property. An owner of a
plot is asked to part therewith only for providing for
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60better facilities of which he would also be a
beneficiary. Every step taken by the State does not
involve application of the doctrine of eminent
domain.
In this case, the appellant did not oppose the
draft scheme. It accepted that the State had a right
to do so. Existence of a public purpose and increase
in the valuation of the property was admitted.
There exists a distinction in the action of the
planning authority as regards vesting of a property
in it and one so as to enable it to create a third party
interest vis-a-vis for the purpose of re-allotment
thereof. In the former case, the vesting of the land
may be held to be an act of acquisition, whereas in
the latter, it would be distribution of certain benefits
having regard to the purpose sought to be achieved
by a statute involving town planning. It was on that
legal principle, this Court in State of Gujarat v.
Shantilal Mangaldas & others [1969 (3) SCR 341],
opined that when a development is made, the owner
of the property gets much more than what would
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61have he got, if the same remained undeveloped in
the process as by reason thereof he gets the benefit
of living in a developed town having good town
planning.”
(emphasis added).
54. In Ranganayakamma and another v. K.S.
Prakash (D) by L.Rs. and others (JT 2008 (8) SC 510) in
reference to Sections 23 & 25 of the Contract Act, 1872 the
Apex Court has elaborated the aspect of “consideration”
including nominal and inadequate consideration as under:-
“49. Mr. Chandrasekhar, however, has drawn our
attention to Anson’s Law of Contract, page 154, wherein the
law is stated to be as under :-
“…..Some additional factor is required to bring a case
within one of the exceptions; for example, the existence of a
relationship in which one party is able to take an unfair
advantage of the other. In the absence of some such factor,
the general rule applies that the courts will enforce a promise
so long as some value for it has been given.”
As regards, nominal and inadequate consideration, the learned
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62Author states :
“Nominal consideration’ and ‘nominal sum’ appear……
as terms of art, to refer to a sum as consideration which can be
mentioned as consideration but is not necessarily paid…….”
“50. The same principle might have been applied in the
Indian Contract Act, “Consideration” has been defined in
Section 2(d) of the Indian Contract Act, which reads as under :-
“(d) When, at the desire of the promisor, the promisee or
any other person has done or abstained from doing, or does or
abstains from doing, or promises to do or to abstain from
doing, something, such act or abstinence or promise is called a
consideration for the promise.”
“51. Consideration even in the Indian context would
mean a reasonable equivalent or other valuable benefit passed
on by the promisor to the promisee or by the transferor to the
transferee. Love and affection is also a consideration within
the meaning of Sections 122 and 123 of the Transfer of
Property Act.”
55. In Writ Petition No. 3208/89 Pragati Housing
Society .vs. Nagpur Improvement Trust, a Division Bench
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63of this Court by order dated 7.2.1990 after considering the
similar rival contentions observed as under :
“Having obtained sanction on that basis it is
impermissible for the petitioners to go behind the
same. There is nothing illegal in the agreement.
The property vests by surrender in the Trust for the
limited purpose of having a planned development.
Under the circumstances, no question of paying
compensation by the Trust can arise. Provisions
relating to acquisition and payment of compensation
(Section 56 of the Nagpur Improvement Trust Act)
are not attracted in such surrenders.”
In Writ Petition No. 539/94, another Division Bench
of this Court by order dated 14.6.1996 considering the similar
agreements and challenge rejected the Writ Petition by
observing as under :-
“(A) As per the initial agreement with the Nagpur
Improvement Trust on 5.2.1971 vide Clause 9, it was
specifically agreed by the petitioner society to hand
over the public utility plots in favour of the Nagpur
Improvement Trust free of costs. The validity of the
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64said clause has not been challenged at the relevant
time.”
It is worth to mention that this Court in Writ Petition
No. 2978/98 while considering the similar agreement under
the Maharashtra Municipalality Act, 1965 whereby the person
like the petitioners agreed to hand over 10% of the land free of
cost to respondent no.1, the Amravati Municipal Corporation
and State Corporation to retain possession for public purpose,
it was specifically provided that the petitioner shall have no
right or ownership on the said land. Another agreement was
entered between the parties. The said plot was thereafter
allotted to other society like the petitioners and leased out for
30 years on nominal rent. The petitioner thereafter based
upon Pandit Chetram case raised quite similar points. A
Division Bench based upon the agreements rejected the similar
contentions in that petition also on the ground of estoppel. The
Civil Appeal Nos. 3389/2000 and 3390/2000 Ganesh
Sahakari .vs. Amravati Municipal Corporation against the
said judgment were also dismissed by the Supreme Court by
order dated 3.8.2005.
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65
56. We have noted that even otherwise, a surrender of
private land for public purpose and/or acquisition of portion of
land for public purpose is not an unknown phenomenon. In
M.C. Mehta .vs. Union of India & others (1996) 4 SCC
351, the Supreme Court has issued direction that land which
would become available on account of shifting and relocation
of hazardous industries from the city of Delhi shall be used in
the manner as provided for in the said judgment, thereby the
land owner was declared to develop a portion of the said land
after surrendering and deducting to the Delhi Development
Authority, a portion of the land for development of green belts
and other places. The land which was required to be
surrendered was upto 68%. The Apex Court rejecting the case
of landowners for compensation in lieu of surrender of portion
of land declined the said compensation on the ground that the
FSI permitted to be used on the land retained by the owner
was 1.5% of the permissible FSI and hence the same was a
consideration for surrendering the land. (M.C. Mehta .vs.
Union of India & others 2000 (5) SCC 525). The Apex
Court in Bombay Dyeing & Manufacturing Company
Limited .vs. Bombay Environmental Action Group and
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66
others (2006) 3 SCC 434 has upheld the Clauses of the
Development Control Rules, 1958 applicable to Bombay which
provide for surrender of the land if the landholder seeks to
develop the remaining land for other purposes as provided
under the Rules. The decision as relied in Vrajlal Jinabhai
Patel, since deceased through his L.Rs. Smt. Jagrati
Vrajlal Patel and another .vs. State of Maharashtra and
others 2003(3) Mh.L.J. 215 to submit that an ownership in
open space under the layout could be vested or transferred to
the Municipal Council is not applicable on facts and
circumstances as referred above. This is not a case also where
there is any question of blocking and encroachment upon the
open space and plot or area of the locality. The respondents
State and/or NIT are bound to stick to the development plan
and scheme as announced. The Apex Court in Chairman,
Indore Vikas Pradhikaran .vs. Pure Industrial Coke &
Chemicals Limited and others (2007) 8 SCC 705 while
dealing with the aspect of Town Planning and Articles 300-A, 14
& 17 of the Constitution of India has also observed :
“………..The courts must make an endeavour to strike
a balance between the public interest on the one
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67hand and protection of a constitutional right to hold
property, on the other. For the aforementioned
purpose, an endeavour should be made to find out as
to whether the statute takes care of public interest in
the matter vis-a-vis the private interest, on the one
hand, and the effect of lapse and/or positive inaction
on the part of the State and other planning
authorities, on the other.”
NIT or such other local authority need to consider the purpose,
scheme, development plan and the circular issued from time
to time by striking a balance of public and private interest.
The petitioners are bound by the agreement and undertaking
as given. In fact, both the parties are bound by the
agreements. In totality the permissible action of respondent
NIT is within the frame of law and the record. There is no
substance in these petitions.
57. Furthermore, factually, the Clause of the
agreement is not void and illegal for want of
consideration. After considering the whole scheme of the NIT
Act and especially Sections 29 to 70 & 121 read with the
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68
agreement entered into by the parties shows that the said
agreement creates reciprocal rights/obligations with following
major objects as rightly contended by the learned Counsel
appearing for respondents/allottees.
(a) Abandonment of the land from acquisition of NIT,
(b)Permission to develop the said land and sanction of a
scheme of a layout therein,
(c) Entrustment of the job of supervision of such development
on NIT,
(d) Transfer of the public utility land, reserved in the said
layout, to the NIT,
(e) immediate and reciprocal permission to develop the land by
making a layout in the said land and permission to sell plots
therein, i.e. permission for commercial exploitation of the
land,
58. Thus, seeking abandonment of the land from
acquisition proceedings is a major and huge benefit which the
petitioner society gained from the agreement.
59. One more benefit which the petitioner derived from
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69
this agreement is immediate and reciprocal sanction for
development of the land (scheme of layout) and permission for
its commercial exploitation, thus averting further loss of time,
money and energy, in obtaining such a permission and
sanction, presuming that there would be no acquisition.
60. The consideration for the voluntary surrender as
recorded above is also that the land which was under
acquisition by NIT for the street scheme has been released
from acquisition and permitted to be used for developing the
layout by the petitioners. The land has been permitted to be
sub-divided into plots. The object of surrendering the land to
NIT voluntarily by the petitioners and such other persons in this
background is definitely charitable and for public purpose.
Apart from this, the petitioners have got all benefits and
advantages under the agreement. They have constructed
various buildings/flats on the developed plots after forming
layouts. The land which they have surrendered, therefore,
cannot be said to be free of consideration. In this background,
the said surrender cannot be said to be immoral or opposed to
public policy. The whole basic object of respondents is also to
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70
distribute or allot such surrendered portion of land for public
utility, i.e. for public purpose. It is not the case of the
petitioner that they need to surrender all developed plots or
layouts. It is only portion which they surrendered after getting
all the benefits as agreed.
61. The submission of petitioners, as noted above,
revolves around the the common Clause of the respective
agreements, being unreasonable, irrational, illegal and void ab
initio as it is without consideration and registration. There is
no force as already noted above even in this submission,
especially when the said Clause has been agreed to be
incorporated by the petitioner society on its free consent and
voluntarily. The quantum of consideration and/or nature of
consideration cannot be permitted to be agitated now in the
Writ Petitions. It is the mutual understanding based upon the
total terms and conditions of the said agreement. There is no
question of any registration in this background of the matter.
NIT as per scheme wants to reallot or lease out for public
purpose, these public utility plots. The submission that theory
of waiver of right to receive compensation for the said land still
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71
results in void agreement is not correct. In this background,
the Apex Court decision as relied, in Waman Shriniwas
Kini .vs. Ratilal Bhagwandas & Co. 1959 Supp. (2) SCC
217 = AIR 1959 SC 689 is of no assistance. The law and
principle of Sections 23 & 25 is not in dispute. The agitation is
the applicability of those principles to the facts and
circumstances of the present case. There is nothing to justify
that the plea of waiver cannot be raised in the present case.
There is nothing opposed to public policy in the present case.
It is not the case that the whole agreement is against the
public policy, but only the clause which is said to be void. The
clause as referred above is interconnected and provides
intermixed obligations and conditions, voluntarily entered into
by the parties.
62. In Pandit Chet Ram (supra), there was no occasion
in that case to consider the agreement like present one
whereby the parties themselves already acted upon and
enjoyed the benefits. The consideration so got by the
petitioners in lieu of so-called compensation is already
elaborated and especially when they themselves agreed for
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72
the same, that itself distinguishes the facts and circumstances
of the present case with that of Pandit Chet Ram.
There was no such voluntary agreement involved in the
said matter. The said challenge is raised only by a very few
people of the society. Most of them have enjoyed the benefits
of the the NIT scheme. NIT pursuant to their scheme instead
of acquiring the land sanctioned permitted the petitioners to
enjoy the position and utilised the same for their individual
members’ benefit by keeping their power and authority to allot
the already declared public utility plots to the educational
institutions and/or public Trusts by following the due procedure
of law of advertisement. Such facts were not in the
background of Pandit Chetram case. Supreme Court has dealt
with sub-section (3) of Section 313 of Delhi Municipal
Corporation Act. Even the case of Pandit Chetram (supra) was
considered and the challenge was negatived long back by
accepting the case of respondents in identically placed facts
and circumstances of the case.
63. The same is the case in Yogendra Pal (supra). The
facts and circumstances of the said Supreme Court case are
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73
also different and distinguishable in view of the reasoning
given in view of above paras. Such agreements cannot be said
to be violative of fundamental rights of persons like the
petitioners and/or opposed to public policy. It is not in breach
of any rights as guaranteed under Article 31 and Article 300-A
as submitted by the petitioners. The Apex Court’s decisions in
Central Inland Water Transport Corporation Ltd. .vs.
Brojonath Ganguly (1986) 3 SCC 156 and LIC of India
and another .vs. Consumer Education and Research
Centre and others (1995) 5 SCC 482 are, therefore, also of
no assistance to the petitioner. The doctrine and principle as
laid down is in no dispute. The facts and circumstances of
that case and present case makes the position distinct and
distinguishable. In Yogendrapal (supra), there was challenge
to the provisions of the Punjab Municipal Act. There is no
challenge in the present case at any point of time to the
provisions as well as to the scheme as announced by the
respondent NIT at relevant time and till this date. The
petitioners have in fact agreed voluntarily and enjoyed the
benefits and after so many years restricting their challenge
only to the Clause of the agreement whereby they are refusing
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74
to perform their part of reciprocal obligations which were basic
terms and conditions of the consent contract as respondent NIT
has already acted upon the said conditions and sanctioned the
plot and further layouts upon which respective members
and/or even third persons have constructed the building. As
noted, the land could have been acquired by NIT but for the
policy and the agreement it was permitted to retain with the
petitioners on condition of leaving the portion in question for
reallotment for the educational or other institutions.
64. The aspect of resolution passed by the petitioners (in
W.P. No. 937/93) and others whereby they agreed/resolved to
surrender public utility plot pursuant to the said agreement
just cannot be overlooked while considering the challenges as
raised by the petitioners in the present petition. The
petitioners cannot blow hot and cold like this, especially after
such long time and in the petitions like this merely because
respondent NIT is also a ‘State’ falling within the meaning of
Article 12 of the Constitution of India.
65. There is force in the submission raised by the
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75
respondents that they are estopped from challenging the
agreement. The doctrine of estoppel of acquiescence in
challenging the only clause 9/8 of the agreement is squarely
applicable. The Apex Court in P.S. Gopinath .vs. State of
Kerala & others : 2008(4) SCC 85, has rejected such
petitions/action of person like the petitioner based upon this
doctrine itself.
66.
There is no dispute that as per the scheme after
sanctioning the layout though entire expenses for the
development were borne out by the petitioner society or such
other person and NIT in return after due advertisement allowed
the said public utility plot in the public interest to registered
Trust and educational institutions, cannot be said to be beyond
the scope and power of NIT Act.
67. The submission that there is nothing mentioned in the
agreement about any kind of consideration and it is mentioned
specifically that the land shall be transferred free of cost and,
therefore, to reagitate the issue about the interpretation in
view of so-called unambiguous terms is clearly impermissible,
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76
especially at the instance of parties who admittedly
understood and agreed upon the same and in fact acted after
enjoying the benefits now reagitating all these questions based
upon the facts and evidence in the present Writ Petition is
unjust and it is in breach of their terms and conditions and
obligations. No equity lies in favour of such persons. The
challenge to the contractual obligations, especially when other
side is a ‘State’ though permissible, in a given case, but in the
present case, in view of above, it is totally frivolous and
impermissible.
68. Admittedly, the agreement was entered into between
the society and NIT and not between the individual
members/plot owners. Merely because there are no Sections
referred in the agreement, that itself cannot be reason that
there was no consideration paid and/or the terms and
conditions are vague, unclear, unequal and gives unbriddled
and arbitrary powers to NIT to utilise/use and allot the said
utility plots, as per the layout for the other public purposes
pursuant to the scheme.
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77
69. The submission that the Clause is severable from the
whole agreement is incorrect. Clause 16 read with Clause 9
and whole agreement only makes the contract valid and
binding to the parties, especially when all the parties pursuant
to the same agreed and acted upon uninterruptedly knowing
fully the provisions of law, the power of NIT and their
respective obligations. As noted, Clause 9 of agreement is
not severable from the rest of the clauses. All are inter-
connected and interlinked and, therefore, the persons like
petitioners have enjoyed all the benefits out of the same. The
challenge after more than 10 to 15 years to the said Clause by
relying on doctrine of ‘blue pencil’ or severance is totally
impermissible. (Beed District Central Cooperative Bank
Limited .vs. State of Maharashtra and others reported
in (2006) 8 SCC 514) & Shin Satallite Public Company
Limited .vs. Jain Studios Limited reported in (2006) 2
SCC 628 are totally not applicable in the facts and
circumstances of the present case. The whole agreement is
not challenged and having enjoyed the benefits because at
that time the petitioners and such other persons thought it to
be valid now cannot invoke the doctrine of severability to the
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78
terms by ignoring the terms and the whole agreement. The
submission that this Clause/actions are no actions in the eyes
of law and do not create any right or obligation in the parties
and, therefore, severable is not correct and impermissible. We
are of the view that there is no ambiguity in the clause of the
agreement. All clauses are clear. The background, the
intention of the parties at the relevant time and surrounding
circumstances apart from the conduct of the parties is
sufficient to reject this contention. Reliance on State of
India and another .vs. Mulla Sahakari Sakhar Karkhana
Limited (2006) 6 SCC 293 and Sappani Mohammad
Mohideen .vs. R.V. Sethusubramania Pillai (1974) 1 SCC
615 are of no assistance because of distinguishable facts and
circumstances.
70. The petitioner even now has gone to the extent of
saying after enjoying the whole fruit of the said agreement that
the society has no title in the said P.U. Plots and the plot
holders have undivided shares and, therefore, the resolution
passed by the society was also without any authority and is of
no consequence to surrender the said land by the society as it
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79
would be without authority. This itself shows the whole
conduct of the petitioner and its members. It is difficult to
accept such pleas as agitated in the present matter at the
instance of such petitioners. Therefore, the self-destructive
submissions against the doctrine of waiver, estoppel,
constructive res judicata, approbation and reprobation without
any pleading and material on record, go against the petitioners
and/or such other person in all respects.
71. In this background, the advertisement and the
allotment so made in favour of respondents/allottees cannot be
said to be irregular and/or without authority. The respondent
NIT needs to take steps in accordance with the law to allot the
plots after advertisement as per their declared scheme and
only to the eligible persons for the public utility as announced.
The petitioners have no first or exclusive right as claimed. The
person in breach of such agreement is not entitled for any
equitable relief. The action of respondents, therefore, is legal
and within the authority to advertise and allot the plots in
favour of allottee respondents or such other public Trusts or
such institutions.
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80
72. NIT, right from its inception, has disposed of the public
utility land in the layouts of NIT from time to time. It is further
submitted that near about 99.9% of the allottees have
accepted and acted upon the agreement and accordingly, NIT
has allotted the lands to the allottees adhering to the Rules.
The petitioners themselves had filed an application for
allotment of the public utility lands to them and as they are not
qualified as per the Land Disposal Rules, they have approached
this Court in seeking the declaration that the lands should be
allotted to them. The petitioners have not challenged any
clause or any rule of the Rules. It is submitted that the
allotment is being made strictly in consonance to the Rules.
NIT after giving an advertisement, invites applications from the
charitable or educational institutions as per the terms and
conditions of the advertisement. Those applications are
scrutinized and the Board of the Nagpur Improvement Trust
recommends the allotment to be made in favour of the
prospective allottees. The said recommendations have been
got approved from the Government in view of Rule 20 of the
Rules and on approval of the Government, the said allotment
has been made. Therefore, there cannot be any fault, which
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can be found out with the allotment being made in favour of
the allottees, who have applied in consonance to the
advertisement and fulfilled the terms and conditions of the
agreement. NIT has allotted the public utility land to following
institutions; which are : Maharashtra Rashtrabhasha Sabha,
Nagpur, Hostel for Women, South Indian Educational Society,
Deaf and Dumb’s School, Indian Medical Association,
Institutions like Nagrik Sahakari Rugnalaya, Kusumtai
Wankhede Hall, Shri Guru Raghvendra Swami Bhajan Mandal,
Maharana Pratap Smuruti Mandir Sanstha, Matru Sewa Sangh,
Shashkiya Chitrakala Mahavidyalaya, Chaitanya International
Hospital, L.A.D. College, Vidarbha Bridge Association, Kalakunj,
Yogabhayasi Mandal, Rani Laxmibai Jhansichi Smarak Samiti,
Bhagwad Pad Sabha, Bhratru Mandal, Yogabhasi Mandal,
Karnatak Sangh, Ved Dharma Shastra Papipalan Sabha,
Satchikitsa Prasarak Mandal, Mahila Sewa Samaj, Nagendra
Digambar Jain Samaj, Khaire Kumbhi Samaj, Sewadal
Education Society, Shri Sant Tukaram Gyan Mandir, Nagpur
Houses of Mary Immanulate, Bhartiya Bhasha Dnyan Mandir,
Dr. Hedgewar Smarak Samiti, Sant Gulab Baba Sewa Ashram,
Gayatri Parivar Trust, Keshaonagar Sanskrutik Mandir, Stree
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Shikshan Prasarak Mandal, Printers Guild, Manav Uttam Sewa
Samiti, Eastern Sports Club, Punjab Sewa Samaj, Shri
Radhakrishna Charitable Trust, Shioprasad Poddar Charitable
Trust, Shri Charottar Patidar Samaj, Mathadi Hamal and Area
Transport Works Union, Nagpur General Works Union,
Parampujya Parmatma Ek Sewak Mandal, Steel and Hardware
Chamber of Commerce, Nag Vidarbha Chamber of Commerce,
Lohana Mahajan Samaj, Hariyana Nagrik Sangh, Vidarbha Dal
Miller Association, Sugar Vachanalaya, Mrugwa Swami Vyayam
Shala, Nagpur Gujarathi Kewalani Mandal, Indian Red Cross
Society, Gurunanak Sindhi Hindi Vidya Samiti, Shri Chokhamela
Samaj Girl’s High School, Sikh Education Society, Bhartiya
Boudha Mahasabha, Nagpur Bidi Majdoor Sangh, Gondwana
Vikas Mandal, Bharat Sewak Samaj/Cancer Relief Society,
Nagpur Nagar Akhada Sanghtan Samiti, Employees State
Insurance Corporation, Indian Cancer Relief Society, Bhartiya
Boudhajan Mahasabha. It is not the case in the facts and
circumstances of the case that the respondent NIT by this
policy and scheme has unjustly enriched itself. The whole
action is in the interest of public at large.
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73. The reliance on Supreme Court judgments; that
alternative remedy is no bar (Assistant Collector of Central
Excise .vs. Jaison Hosiery Industries (1979) 4 SCC 22,
Popcorn Entertainment and another .vs. SIDCO and
another 2007(9) SCC 593 and Whirlpool Corporation .vs.
Registrar of Trademarks, Mumbai and others (1998) 8
SCC 1) and; Writ Petition in the sphere of contracts though
needed detailed investigation, High Court may exercise
jurisdiction under
ig Article 226; Hindustan Petroleum
Corporation Ltd. and another .vs. Dolly Das (1994) 4
SCC 450 and Himmatlal .vs. State of M.P. AIR 1954 SC
403 would also not assist the petitioner to support his case for
the relief as claimed in the facts and circumstances of the case
itself.
74. The additional vague challenge is about the validity of
Rule 20 of the Land Disposal Rules of NIT. Considering the
scheme and purpose of NIT Act and in view of the above
reasons given, there is no substance in this challenge also.
The same is within the framework of law. For the above
reasons, the G.R. dated 10.6.1996 as relied in Writ Petition No.
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1353/99 is also of no assistance to the petitioners which only
provides further instruction how to deal with the situations
based upon the prior agreements as in some cases the persons
like the petitioners have not handed over the possession
physically and obtained interim orders of protections from
various Courts and in the result, there are status-quo in
operation in many cases.
75.
For the above reason also, the points as raised and
submitted by the petitioners have no force and accordingly
rejected. The respondent NIT is free to allot the land by
following due procedure of law for public purpose as
announced. There is no arbitrariness or any illegality in doing
so.
76. Therefore, taking all into consideration, the points (a),
(b), (c), (d), (g) are answered in the negative and the points (e)
& (f) in positive.
77. In view of the above reasons, all the Writ Petition Nos.
934/94, 967/92, 1179/93, 3085/93, 1784/92, 1034/95,
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1512/2000, 1136/93, 2322/92, 822/99, 1070/2000 & 5145/07
are dismissed. Interim order so granted also stands vacated.
No order as to costs.
78. At this stage, learned Counsel appearing for the
petitioners seek stay of present judgment basically for the
reason that till this date the writ petitions are pending and the
undertakings and interim orders so granted have been in force
since more than 15 years. In the circumstances, therefore, the
effect and operation of the judgment is stayed for eight weeks.
JUDGE. JUDGE.
J.
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