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jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 904 OF 2010
The City & Industrial Development ]
Corporation Ltd., a body established ]
under the provisions of the City and ]
Industrial Development Corporation ]
Act, having office at CIDCO Bhavan, ]
CBD Belapur, Navi Mumbai-400 0614
ig ]..Petitioner
Vs.
1. The Sate of Maharashtra ]
through the Ministry of Revenue ]
and Forest, Mantralaya, ]
Mumbai-400 032 ]
2. The Hon'ble Minister for ]
Revenue, State of Maharashtra ]
Mantralaya, Mumbai-32 ]
3. The Collector, Raigad ]
4. Vinayak Pundlik Aaklekar ]
Age Adult, Occ: Retired ]
5. Smt.Sanjivani Bhalchandra ]
Aaklekar, Aged adult, ]
Occ: Household ]
6. Rajendra Bhalchandra Aaklekar ]
Age adult, Occ: Service ]
7. Ms. Pradnya Bhalchandra ]
Aaklekar, Age adult, Occ: Service]
Nos. 4 to 7 residing at 140/4752 ]
Pritisagar Society, Kurla (East) ]
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Through their Power of Attorney ]
Shri. Indrajeet V.Bhadra, ]
Age Adult, Occ: Business, ]
Residing at 9/D, Devkinandan ]
Sector 3E, Navi Mumbai ]..Respondents
Shri. Y.S.Jahagirdar Senior Advocate with Shri. S.S.Kanetkar for
petitioners
Shri. N.V.Walawalkar Senior Advocate with Shri.Umesh
Mankapure advocate for respondent nos. 4 to 7
Shri. R.M.Patne AGP for respondent nos.1 to 3
CORAM : S.C.DHARMADHIKARI, J.
DATE : 20th JULY, 2011.
ORAL JUDGMENT:
1. Rule. Respondents waive service. Rule returnable
forthwith.
2. This writ petition under Articles 226 and 227 of the
Constitution of India is directed against the order passed by
the Minister for Revenue, Government of Maharashtra
dated 5th June, 2009, a copy of which is annexed at
Annexure-D to the petition.
3. That order came to be passed on a Revision Application
which was filed by the contesting respondents nos. 4 to 7 to
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this petition.
4. The application alleged that certain lands at Mouje
Kharghar, Taluka Panvel, District Raigad were belonging to
one Kurvanali Nagarali Khoja. The name of said person is
entered in the revenue records as owner. The said lands
have been disposed of by the said Kurvanali Khoja to
predecessor-in-title of the respondent nos. 4 to 7, namely
Smt. Chandrabhagabai Pandurang Aaklekar i.e. by a
document/deed dated 27th May, 1940. Thereafter, the said
Smt. Chandrabhagabai Pundlik Aaklekar was put in
possession and she has got absolute title and right in the
said property. Her name has been entered in the revenue
record as owner qua Entry No.619.
5. This land, according to the respondent nos.4 to 7, always
remained with Smt. Chandrabhagabai and she never parted
with possession thereof nor her title and/or interest therein
was transferred in any manner. This land has been
erroneously mentioned in the revenue records as
“Akaripad”. It has not been notified as land belonging to a
private party. In these circumstances, the land came to
Kharghar Gram Panchayat on certain terms and conditions.
The statement made in the application to the State
Government invoking its revisional powers, clearly states
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that the Collector had passed orders on 13th March, 1941
and 19th March, 1941. It is aggrieved by this that the
revisional jurisdiction has been invoked purportedly to seek
correction and modification in the revenue records so as to
show that the said Chandrabhagabai never lost her title and
interest in the said properties.
6. Upon this application, the contesting respondent viz.
petitioner which is City & Industrial Development
Corporation Ltd., (for short “CIDCO”) the Planning
Authority
raised a preliminary objection that such
application at the instance of the respondent nos. 4 to 7
cannot be entertained at this belated stage. This
application cannot be accepted in any event because the
land was a Government land and stood vested in the CIDCO
free from all encumbrances. It was pointed out that after a
lapse of 70 years, the entries are being questioned and
without pointing out that during the intervening period the
claim was relinquished by Smt. Chandrabhagabai Aaklekar.
The Government took possession and thereafter the land
was declared as `Akaripad” and declared as Gram
Panchayat land. It vested in the Group Gram Panchayat in
the year 1952. In the year 1971, the land was notified for
Panvel town and Navi Mumbai and the State Government
after following the necessary proceedings directed that the
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said land vests in CIDCO free from all encumbrances. This
was a development of 1972 and thereafter the possession
was handed over to the CIDCO in the year 1985. Once the
land vested in this manner, then, there is no question of the
revision being entertained or any orders being passed
thereon.
7. By overruling this objection, according to the petitioners,
the matter was decided by the then Revenue Minister and
while directing that the revenue entries be corrected, he
further directed that the question of physical possession
being handed over to the respondent nos. 4 to 7, does not
arise on account of supervening development and
circumstances. However, it should be held and all the
concerned should proceed on the basis of the land having
been acquired from the private parties. The land should be
treated as private land and therefore, the benefits that are
available post acquisition for such lands, be made available
to the respondent nos. 4 to 7.
8. Apprehending that the entire matter which stands
concluded by the directions of the State Government
issued way back in the year 1972, and the land vesting in
CIDCO free from all encumbrances is reopened in this
manner and CIDCO may have to face further proceedings
so also part with either its immovable property or valuable
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public funds, that the instant writ petition has been filed.
9. Mr. Jahagirdar. learned Senior Counsel appearing on behalf
of the petitioner submitted that ordinarily the petitioner
which is a public authority, would not approach this Court
in writ jurisdiction challenging the said orders of the State
Government. However, in the garb of issuing innocuous
directions to correct the revenue entries what the State
Government has done is that benefits which flow from the
acquisition of private lands, is made available to the
respondent nos. 4 to 7. In other words, apart from seeking
monetary benefits and reliefs on the basis of the order
passed by the State Government, they would also seek
allotment of alternate land under some Schemes which
have been framed by the CIDCO. All this would be based
on the declaration of the State Government. He submits
that if there was a dispute as regards the right, title and
interest of parties in the subject immovable properties and
if it was their claim that private lands are acquired, then,
nothing prevented them from approaching the competent
Court for all these years seeking appropriate reliefs. That
having not been done, in the garb of entertaining a revision
application and that too to set at naught something which
took place 70 years back, the State Government has
passed the instant order. This is contrary to settled legal
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principles that the revisional jurisdiction must be exercised
within a reasonable time. That reasonable time in given
facts and circumstances, could never exceed the period of
three years. In these circumstances, looked at any way,
the impugned order deserves to be set aside.
10. The petition has been contested by the respondent nos. 4
to 7. Mr. Walawalkar, the learned Senior Counsel on their
behalf invited my attention to the affidavit filed in reply and
firstly, submitted
ig that CIDCO being an Agency or
Instrumentality of the State and a Special Town Planning
Authority, it has no locus to question the order of the State
Government. Secondly, he submits that none of the factual
aspects which were placed before the concerned Minister
were ever disputed by the petitioner. It was pointed out
that during the course of hearing before the Minister that
there was no relinquishment. Apart from that, the said
property was sold by Chandrabhagabai to one Zuelekabai
Kazi by registered sale deed dated 29th March, 1946. If the
lands were allegedly surrendered and the claim was
relinquished by the said Chandrabhagabai then this sale
deed could never have been executed. There is a specific
mention with regard to this sale deed and copy thereof was
also produced. After the sale deed, the purchaser was put
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in possession and he enjoyed fruits of the deed and when
the land was acquired by CIDCO in the year 1972 so also
when the actual possession was taken in the year 1985, the
purchaser was held entitled to benefits under the award
and accordingly, subsequent benefits are granted to him.
For all these reasons, this is not a fit case for interference in
writ jurisdiction and particularly, when the dispute is with
regard to the revenue entries.
11. With the assistance of the learned Senior Counsel
appearing for the parties, I have perused the petition and
annexures thereto so also affidavit on record. As far as
objection raised by Shri. Walawalkar about the locus standi
of the petitioner and reliance placed upon the decision of
the learned Single Judge of this Court in the case of
Percival Joseph Pareira Vs. Special Land Acquisition
Officer and others reported in 2010 (5) B.C.R. 344 is
concerned, it must be at once noticed that this was a case
of reference under Section 18 of the Land Acquisition Act,
1894. The claimants challenged the order passed by the
Reference Court directing that the CIDCO should be
impleaded as opponent. It was his case that the lands were
not acquired by CIDCO nor at their instance. The State
Government was the acquiring body and therefore, CIDCO
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has no locus to appear in the proceedings. It was while
dealing with this objection that the locus of CIDCO was
decided. This decision can never be of any assistance to
question the locus of CIDCO in the instant proceedings. If a
Authority like CIDCO are of the opinion that some of the
directions in the impugned order exceed the jurisdiction of
the State Government under Section 257 of the
Maharashtra Land Revenue Code, 1966 and may have far
reaching consequences, then, nothing prevents the CIDCO
from approaching this Court in its extra ordinary jurisdiction
under Articles 226 and 227 of the Constitution of India.
These powers are plenary in nature. They can be invoked
by the authorities to question the act of the State
Government and if it affects public interest so also re-opens
already concluded matters. Precisely for this reason that
the instant petition has been filed. Therefore, there is no
substance in the first objection about the locus of the
petitioner.
12.As far as the second objection is concerned, it is clear that
the predecessor-in-title of the respondent nos. 4 to 7 nor
the said purchaser has ever approached the petitioner
either seeking benefits under the Award or the authorities
under the Land Revenue Code have been approached for
correction or modification of the revenue entries by them.
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The present respondent nos. 4 to 7 claim to be entitled to
the lands through their predecessor-in-title i.e.
Chandrabhagabai. It was their case that said
Chandrabhagabai never relinquished her right, title and
interest in the lands and continued to retain the ownership
thereof. Such a claim and that too for the first time is
entertained by the Revenue Minister. Considering the
limited scope of the proceedings namely, seeking
modification and correction in revenue entries, it was not
open for him to go into the disputed the question of title. It
was his plain duty in law in such cases to direct the parties
to approach the competent Civil Court and claim
appropriate declaration in their favour. On the basis of
such declaration the revenue records could have been
corrected. However, instead of issuing such direction and
disposing of the revision application, the Minister
entertained it and virtually adjudicated on the disputed
issues. The result of the same is that without any
declaration in their favour, respondent nos. 4 to 7 by
impleading CIDCO as party and approaching the State
Government under Section 257 of the Maharashtra Land
Revenue Code, 1966 obtained certain benefits attached to
and arising out of the interest in the land. The question
was whether such benefits could have been given by the
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State Government in the instant proceedings. The Minister
clearly went much beyond his power, authority and
jurisdiction and issued directions which could be said to be
unsustainable in law. There is substance in the contentions
of Mr. Jahagirdar that innocuous they may appear at least,
direction no. (B) would have the effect of re-opening the
concluded acquisition proceedings and directing CIDCO to
extend the benefits of certain beneficial schemes to
persons who are before the revisional authorities. Whether
the issue that the said persons could have claimed the
same through their predecessor-in-title benefits or
otherwise in law, has not been decided. Indeed, it could
not have been decided in the limited authority and power.
It has not been held that the facts on record are so
undisputed and clear that there was never any doubt about
the same on the own showing of the respondent nos. 4 to 7
whether Chandrabhagabai retained the title in the lands is a
matter which cannot be gone into unless a declaration in
their favour is obtained by them from the competent Civil
Court. In these circumstances and without any such
declaration, the Minister could not have issued the instant
direction.
13.The Minister has clearly exceeded his authority and could
he safely be said in legal parlance has abused the powers
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that are conferred under Section 257 of the Maharashtra
Land Revenue Code, 1966 in issuing the instant direction.
Section 257 of the Maharashtra Land Revenue Code, 1966
confers powers on the State Government and on certain
Revenue and Survey Officers to call for and examine
records and proceedings of subordinate officers for the
purpose of satisfying themselves as to the legality or
propriety of any decision or order passed, and as to the
regularity of the proceedings before such Officer. It is not
as if these powers have to be exercised as a matter of
course. The powers are conferred specifically to decide the
legality or propriety of the decision or the order or
regularity of the proceedings. In such limited power, the
State Government could not have as in the instant case,
taken upon itself the role of an adjudicator of Right and
Title to a immovable property. The role of adjudicator, in
the given circumstances, was to be performed by a Civil
Court. In the absence of any of the factors which would
enable the exercise of the revisional jurisdiction that the
same have been exercised in the instant case. It is well
established principle of law that what cannot be achieved
directly cannot be achieved indirectly or by oblique way or
method. The Revenue Minister and the State ought to
have been aware that all powers of the aforesaid nature are
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in the nature of a Trust. The same are to be exercised
bearing in mind Public good and Public Trust. Private
Interest and benefit is subservient to larger Public Interest.
The Revisional Authority ought to have been aware that
giving directions to its own Agency or Instrumentality and
particularly of the aforementioned nature will land it in
serious difficulties as so called landowners will then rush to
claim back lands or benefits attached to it or monetary
compensation at enhanced rates or such other advantages
and privileges which may have been given and offered in
the past to induce owners of huge tracts of land to part with
them for implementing a New Town Development Project.
All cases and matters which have been closed decades
back will be reopened and an attempt will be made to seek
similar reliefs. Floodgates would open and CIDCO may be
exposed to unnecessary and futile litigation. In this
context, the Judgment of the Hon’ble Supreme Court in the
case of S.C. and S.T. Welfare Council Vs. State of Uttar
Pradesh reported in AIR 1997 S.C. 1451 is relevant. In
paras 21 to 23 of this decision, it is observed thus :
” 21. S.A. de Smit in his article “The abuse of
statutory powers” published in Public Law Series 1956
(page 233) has stated in page 237 under the heading
of “Misuse of Powers in Bad Faith and in Good Faith”
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that a discretionary power may be exercised invalidly
if its repository exercises it for an improper purpose
or on the basis of irrelevant considerations or in
disregard of relevant considerations or with gross
unreasonableness… The concept of bad faith eludes
precise definition, but in relation to the exercise of
statutory powers it may be said to comprise
dishonestly and malice. A power is exercised
dishonestly if its repository intends to achieve an
object other than that for which he believes the power
to have been conferred. His intention may be to
promote another public interest or his own private
interests. A power is exercised maliciously if its
repository is motivated by personal animosity towards
those who are directly affected by its exercise.
23. In “Public Administration” by Pfiffner Presthus
(4th Edn.) at page 550 it is stated that public
administration is responsible to the rule of law
doctrine which proves a fairly effective standard for
judging administrative decision. Political responsibility
is similarly involved with the idea of government’s
control by public opinion, political parties, and the
community. Responsibility is also commonly used to
denote the obligation of an individual to behave
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according to certain standards of conduct. In public
administration, responsibility often has a negative
connotation; we are usually satisfied if the official is
kept from wrong doing. On “Responsibility and
Accountability”, he states that accountability refers to
the formal or legal locus of responsibility.
Responsibility, on the other hand, has a highly
personal, normal quality and is not necessarily related
to formal status or power, although it is probably true
that greater power brings greater responsibility. Thus
a department head is accountable for the actions of
all his subordinates, although in actual fact he is not
“responsible” for their use of the power which he must
of necessity delegate to them. Similarly, in exercising
discretion the official is normally responsible for his
decisions, although he is often not legally
accountable. In practice, responsibility must be
shared; it percolates down the stream throughout the
entire administrative branch. On the other hand,
accountability, which concerns the formal
relationships between administration and the
legislative and judicial branches, can never be
shared…… The Council of Ministers is accountable for
the entire administrative branch. The bureaucracy
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has a representative function. In the case of
regulatory activity, for example, administrators give
meaning to broad legislative declarations of social
policy by their decisions in specific cases. In
advancing the social objective of the community, they
sometimes develop the rule of public interest which is
applied when decisions are made. The bureaucracy
shares with the legislature the task of ensuring that
the community receives a reasonable amount of
justice in the distribution of public resources……
Obviously, therefore full faith was given to their acts
and actions. In selecting among alternative policies,
in extending or narrowing the efficacy of rule or
policy, the official necessarily must work in a value
context. Various factors impinging upon a particular
decision are isolated and require assignment of
relative weights nor in accordance with what the
official thinks is “right” but in tune with and to
effectuate mandates of the Constitution. The “public
interest” will be the ultimate element in this process.”
Again in M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu, the
Hon’ble Supreme Court holds as under:
“60. In the treatise “Environmental Law and Policy :
Nature, Law and Society by Plater Abrams Goldfarb
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(American Casebook series 1992) under the Chapter
on Fundamental Environmental Rights, in Section 1
(The Modern Rediscovery of the Public Trust Doctrine)
it has been noticed that “long ago there developed in
the law of the Roman Empire a legal theory known as
the “Doctrine of the public trust”. In America Public
Trust doctrine was applied to public properties, such
as shore-lands and parks. As to how doctrine works it
was stated: “The scattered evidence, taken together,
suggests that the idea of a public trusteeship rests
upon three related principles. First, that certain
interests– like the air and the sea — have such
importance to the citizenry as a whole that it would be
unwise to make them the subject of private
ownership. Second, that they partake so much of the
bounty of nature, rather than of individual enterprise,
that they should be made freely available to the
entire citizenry without regard to economic status.
And, finally, that it is a principle purpose of
government to promote the interests of the general
public rather than to redistribute public goods from
broad public uses to restricted private benefit……”
with reference to a decision in Illinois Central Railroad
Company Vs. Illinois, (1892) 146 US 387, it was stated
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that “the Court articulated in that case the principle
that has become the central substantive thought in
public trust litigation. When a state holds a resource
which is available for the free use of the general
public, a Court will look with considerable skepticism
upon any governmental conduct which is calculated
either to reallocate the resource to more restricted
uses or to subject public uses to the self-interest of
private parties”. This public trust doctrine in our
country, it would appear, has grown from Article 21 of
the Constitution.
68. When we keep in view the principles laid by this
Court in its various judgments and which we have
noticed above, it has to be held that the agreement
dated November 4, 1993 is not a valid one. The
agreement defies logic. It is outrageous. It crosses all
limits of rationality. Mahapalika has certainly acted in
fatuous manner in entering into such an agreement. It
is a case where the High Court rightly interfered in
exercise of its powers of judicial review keeping in
view the principles laid by this Court in Tata Cellular
Vs. Union of India (1994) 6 SCC 651 : (1994 AIR SCW
3344 : AIR 1996 SC 11), Every decision of the
authority except the judicial decision is amenable to
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judicial review and reviewability of such a decision
cannot now be questioned. However, a judicial review
is permissible if the impugned action is against law or
in violation of the prescribed procedure or is
unreasonable, irrational or mala fide. On the principle
of good governance reference was made to a decision
of Division Bench of Bombay High Court in State of
Bombay V. Laxmidas Ranchhoddas AIR 1952 Bombay
468 at 475 (Para 12). It was submitted that bad
governance sets a bad example. That is what exactly
happened in the present case.
69 . In State of Bombay V. Laxmidas Ranchhoddas,
AIR 1952 Bom 468 a Division Bench of the High Court
was considering the argument that the writ of
mandamus being discretionary, the Court should
consider whether it should not put a limitation upon
its own powers and jurisdiction. It was submitted that
it was impossible for any State to function if there was
a constant interference by the High Court in the
executive acts performed by the officers of the State,
Chagla, CJ, speaking for the Court, said (Para 12):
“It may be that interference by the High Court may
result in inconvenience or difficulty in
administration. But what we have to guard against
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17-wp-904-10.docis a much greater evil. When we find in the
modern State wide powers entrusted to
Government, powers which affect the property and
person of the citizen, it is the duty of the Courts to
see that those wide powers are exercised in
conformity with what the Legislature has
prescribed. We are not oblivious of the fact that in
order that the modern State should function the
Government must be armed with very large
powers. But the High Court does not interfere with
the exercise of those powers. The High Court only
interferes when it finds that those powers are not
exercised in accordance with the mandate of the
Legislature. Therefore, far from interfering with the
good governance of the State, the Court helps the
good governance by constantly reminding
Government and its officers that they should act
within the four corners of the statute and not
contravene any of the conditions laid down as a
limitation upon their undoubtedly wide powers.
Therefore, even from a practical point of view,
even from the point of view of the good
governance of the State, we think that the High
Court should not be reluctant to issue its
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prerogative writ whenever it finds that the
sovereign Legislature has not been obeyed and
powers have been assumed which the Legislature
never conferred upon the executive.”
14.It is for this reason, that this Court is required to interfere
in writ jurisdiction. As a result of the same, the impugned
order cannot be sustained. It is accordingly quashed and
set aside. Rule is made absolute in terms of prayer clause
(a). However, it is directed that it would be open for the
respondent nos. 4 to 7 to institute such proceedings as are
permissible in law, if they are claiming their right, title or
interest in the immovable properties. All contentions in
that behalf of the parties are kept open.
[ S.C. DHARMADHIKARI, J. ]
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