{"id":62134,"date":"2009-09-01T00:00:00","date_gmt":"2009-08-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/popcorn-entertainment-vs-the-city-industrial-development-on-1-september-2009"},"modified":"2018-12-24T20:20:08","modified_gmt":"2018-12-24T14:50:08","slug":"popcorn-entertainment-vs-the-city-industrial-development-on-1-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/popcorn-entertainment-vs-the-city-industrial-development-on-1-september-2009","title":{"rendered":"Popcorn Entertainment … vs The City Industrial Development on 1 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Popcorn Entertainment … vs The City Industrial Development on 1 September, 2009<\/div>\n
Bench: V.C. Daga, Mridula Bhatkar<\/div>\n
                                  1\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                \n                 WRIT PETITION NO. 9467 OF 2005\n\n\n\n\n                                       \n     1. Popcorn Entertainment Corporation,\n        through is proprietor Shri Nilesh\n        Gala, D-1\/S-10, M.G.Complex,\n        Sector-14. Vashi, Navi Mumbai.\n\n\n\n\n                                      \n     2. Shri Nilesh Gala,\n        D-1\/S-10, M.G.Complex, Sector-14.\n        Vashi, Navi Mumbai.                             ...  Appellants.\n\n\n\n\n                              \n              V\/s.\n                     \n     1. The City Industrial Development\n        Corporation, Through its Managing\n        Director, CIDCO Bhavan, Kokan\n        Bhawan, Navi Mumbai.\n                    \n     2. The State of Maharashtra,\n        Through its Secretary, Mantralaya,\n        Mumbai- 400 032. Maharashtra.                   ...  Respondents.\n      \n\n\n                                WITH\n   \n\n\n\n                 WRIT PETITION NO. 9468 OF 2005\n     1. Platinum Entertainment,\n        through is proprietor Shri Nilesh\n\n\n\n\n\n        Gala, D-1\/S-10, M.G.Complex,\n        Sector-14. Vashi, Navi Mumbai.\n\n     2. Shri Nilesh Gala,\n        D-1\/S-10, M.G.Complex, Sector-14,\n        Vashi, Navi Mumbai.                             ...  Appellants.\n\n\n\n\n\n              V\/s.\n\n     1. The City Industrial Development\n        Corporation, Through its Managing\n        Director, CIDCO Bhavan, Kokan\n        Bhawan, Navi Mumbai.\n\n     2.   The State of Maharashtra,\n          Through its Secretary, Mantralaya,\n          Mumbai- 400 032. Maharashtra.                 ...  Respondents.\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 14:58:07 :::\n                                              2\n                                           WITH\n                    WRIT PETITION NO. 3423 OF 2006\n\n\n\n\n                                                                             \n     Platinum Square Trust,through\n\n\n\n\n                                                     \n     its trustee Shri Damji Kunverji\n     Gala Navi Mumbai.                                               ...  Appellant.\n\n                 V\/s.\n\n\n\n\n                                                    \n     1. The City Industrial Development\n        Corporation, Through its Managing\n        Director, CIDCO Bhavan, Kokan\n        Bhawan, Navi Mumbai.\n\n\n\n\n                                        \n     2.   The State of Maharashtra,\n          Through its Secretary, Mantralaya,\n                        \n          Mumbai- 400 032. Maharashtra.                              ...  Respondents.\n                       \n     Vikas Singh, senior counsel with Ms.Amrita Narayan, Navdeep Vora, Rajmani \n     Verma,   Madhukar   Kalzunkar   and   Mr.Suhas   Patil   i\/b.   Navdeep   Vora   & \n     Associates for the petitioners.\n      \n\n     G.S.Hegde with C.M.Lokesh i\/b. G.S.Hegde & Associates for respondent No.1.\n   \n\n\n\n     P.I.Khemani, A.G.P. For respondent No.2.\n\n\n                 CORAM :                             V.C.DAGA and\n                                                     MRS.MRIDULA BHATKAR, JJ.\n<\/pre>\n
                 LAST DATE OF HEARING :              4th August 2009.\n<\/p>\n
                 DATE OF JUDGMENT :                  1st September 2009.\n<\/p>\n
     JUDGMENT :    (Per V.C.Daga, J.)\n\n\n                 The first and second petitioners                         M\/s.Popcorn\n     Entertainment         in    W.P.No.9467\/2008          ( M\/s.Popcorn                for\n<\/pre>\n
     short) and M\/s.Platinum Entertainment in W.P.No.9468\/2008
\n     ( M\/s.Platinum         for short) were allotted plot of lands by<\/p>\n
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\n                                                   3<\/span>
\n     respondent No.1             The City and Industrial Development<\/p>\n
     Corporation         ( CIDCO           for        short)        for             erecting
\n     entertainment        complex          in    Navi    Mumbai.          Whereas         third<\/p>\n
     petitioner      –     M\/s.Platinum               Square     Trust        in      W.P.No.
\n     3423\/2006 ( Platinum Square                   for short) was allotted plot
\n     of land for establishment of country club.                                    The said<\/p>\n
     allotments were cancelled by CIDCO.                       The petitioners have
\n     challenged the said orders of cancellation through these
\n     petitions filed under Article 226 of the Constitution of
\n     India.\n<\/p>\n
     2.
\n     almost<\/p>\n
                The facts giving rise to these petitions are
\n               similar.              The        questions      of     law      raised        are
\n     identical.      Rival submissions made are common to all<\/p>\n
     petitions.      Common written submissions are circulated by
\n     the     parties.          However,            the    petitions               filed        by
\n     M\/s.Popcorn         and    M\/s.Platinum              Entertainment             are      the<\/p>\n
     subject matter of remand order passed by the Hon ble
\n     Supreme     Court,        whereas            third      petition,           filed         by<\/p>\n
     M\/s.Platinum Square is coming up for consideration before
\n     this    Court   for       the    first        time     along      with      other       two
\n     remanded petitions since the facts and issues involved<\/p>\n
     are common.     It has           become necessary to state the facts
\n     separately in each petition for the sake of clarity and
\n     to     demonstrate        common           thread     running         between         them<\/p>\n
     requiring identical judicial approach.                         But, before we do
\n     so, we may point out the facts common to all in relation
\n     to the source of power of allotment of land by CIDCO and
\n     reasons for cancellation of allotments made in favour of
\n     the petitioners.\n<\/p>\n
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\n                                             4<\/span><\/p>\n
     Facts Common to All :\n<\/p>\n
     3.          The respondent No.1               CIDCO has been nominated<\/p>\n
     as new town planning authority for the new town of New
\n     Bombay.     The respondent No.2 is the Managing Director of
\n     respondent       No.1.         Respondent         No.3     is        the   State       of<\/p>\n
     Maharashtra, who is having ultimate authority and power
\n     to control and regulate the activities of planning and
\n     development       under    the     Maharashtra           Regional          and     Town
\n     Planning Act, 1966 ( MRTP Act               for short)<\/p>\n
     4.<\/p>\n
                 In exercise of powers conferred by sub-clause\n<\/p>\n
     (a) of clause (1) of section 159 of the MRTP Act, the<\/p>\n
     CIDCO being new town development authority for the area
\n     comprised in the site of New Bombay under sub-section
\n     (3A)   of    section      113    of   the    said        Act,        has   with       the
\n     previous approval of the State Government published in<\/p>\n
     the Maharashtra Government Gazette Part IV0C on 26th July,<\/p>\n
     1979 the New Bombay Disposal of Lands Regulations, 1975
\n     ( the Regulations         for short).\n<\/p>\n
     5.          The aforesaid regulations, inter alia, provide
\n     for the demarcation of plots vested in the Government by
\n     CIDCO into disposable plots having regard to their size
\n     and use.         The said regulations also make provision for<\/p>\n
     conditions of lease, mode of disposal and for grant of
\n     land for religious, educational, charitable and public
\n     purposes.         For    the    present     purpose,         regulation           4    of
\n     Chapter     IV    which    provides         for     mode        of     disposal        is
\n     material.     We may quote the same.\n<\/p>\n
                  4.      Manner of disposal of land: The
\n                 Corporation may dispose of plots of land<\/p>\n
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\n                                                 5<\/span>
\n                 by   public  auction   or  tender   or  by
\n                 considering individual applications as the<\/p>\n
                 Corporation may determine from time to
\n                 time.\n<\/p>\n
     6.          Suffice it to say that in exercise of the above
\n     powers      the     plot      of     lands      were     allotted           to        the<\/p>\n
     petitioners         by       CIDCO       and     after     receipt           of     full
\n     consideration, CIDCO executed                      agreements of lease in
\n     favour      of      two      petitioners,          viz.        M\/s.Popcorn            and
\n     M\/s.Platinum.            Though the entire consideration was paid<\/p>\n
     by the third petitioner- M\/s.Platinum Square to CIDCO,<\/p>\n
     the possession of the plot was to be handed over to it
\n     only after its registration as society and\/or charitable
\n     trust as the case may be.\n<\/p>\n
     7.          The State Government subsequent to the confirmed
\n     allotments        appointed         the    Additional          Chief        Secretary,<\/p>\n
     Government of Maharashtra Dr.D.K.Shankaran to go into the
\n     question of validity of the allotments of plots during<\/p>\n
     the    tenure      of        the    Managing      Director        of    CIDCO,        one
\n     Mr.V.M.Lal. Dr.D.K.Shankaran, after conducting discrete
\n     enquiry, submitted his reported on 31st March, 2005.                                  The<\/p>\n
     State Government vide its letter dated 15th April, 2005
\n     forwarded this report to the CIDCO with direction to
\n     implement         the recommendations made by Dr.D.K.Shankaran<\/p>\n
     in his report ( Shankaran Report                   for short).\n<\/p>\n
     8.          The show cause notices were issued by the CIDCO
\n     on    the   basis       of   the     above     report     to    the     petitioners
\n     without           making           any         allegations             of         fraud,
\n     misrepresentation or undue influence on the part of the
\n     petitioners in the matter of allotment of plots.                                      The
\n     substance of the notices is that the allotments were made<\/p>\n
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\n                                               6<\/span>
\n     without      inviting       public      tenders        and     the       concluded<\/p>\n
     agreements were void on the thrust of section 23 of the
\n     Contract Act, 1872 being opposed to the public policy.\n<\/p>\n
     9.           The aforesaid show cause notices were replied by
\n     the    petitioners        by   their     separate       replies        requesting<\/p>\n
     therein to supply copy of the Shankaran Report contending
\n     that in absence of report it was not possible for them to
\n     effectively         reply      the     show     cause        notices.              The
\n     petitioners also alleged               breach of principles of natural<\/p>\n
     justice and raised other legal and factual contentions<\/p>\n
     reiterating their specific request for supply of copy of
\n     the Shankaran Report which had been heavily relied upon
\n     by the CIDCO in its show cause notices.\n<\/p>\n
     10.          It appears that the CIDCO                  without furnishing
\n     copy    of    the    Shankaran       Report     passed       impugned         orders<\/p>\n
     cancelling allotment of plots                   mentioning therein that
\n     the Board of Directors of CIDCO had found themselves in<\/p>\n
     substantial      concurrence         with     the    findings       recorded         by
\n     Dr.D.K.Shankaran in its enquiry.                      The impugned orders
\n     further mention that the agreements signed by the CIDCO<\/p>\n
     were void ab initio            under section 23 of the Contract Act
\n     as the tenders were not invited and that the allotments
\n     were made in violation of Article 14 of the Constitution<\/p>\n
     of India.        The petitioners were called upon to remain
\n     present on the site to hand over peaceful possession of
\n     the    subject      plots.        It    also        provided     that       on     the
\n     surrender of the plot, CIDCO would repay the amount of
\n     consideration        to     the   petitioners          received        by     it     on
\n     account of premium without interest.\n<\/p>\n
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\n                                                7<\/span><\/p>\n
     11.          Being      aggrieved    by       the    aforesaid          orders,        the<\/p>\n
     petitioners       have     filed    these      three       separate          petitions
\n     detailed hereinbelow.\n<\/p>\n
     12.          Two petitions out of three, i.e. the petitions
\n     filed by M\/s.Popcorn and M\/s.Platinum Entertainment came<\/p>\n
     up     for   hearing      before     the            learned       Division          Bench
\n     presided over by Shri V.G.Palshikar, J. (as he then was).
\n     The petitions were heard and dismissed by an order dated
\n     30th June, 2006 relegating the petitioners to have an<\/p>\n
     alternate efficacious remedy                  by way       of civil suit.\n<\/p>\n
     13.          Being
\n                         ig  aggrieved    by       the    aforesaid          order,       both
\n     petitioners approached the Hon ble Supreme Court by way<\/p>\n
     of S.L.P.         The Apex Court, on 24th July, 2006, issued
\n     notices       returnable          within       six        weeks         and       stayed
\n     dispossession        of    the    subject      petitioners             with     further<\/p>\n
     direction directing them not to put up any construction
\n     until further orders.              Later on the leave to appeal was<\/p>\n
     granted.       After hearing the parties to the appeal, the
\n     Apex     Court     vide     its     judgment         and      order       dated        29th
\n     February,        2007     was     pleased      to      hold      that       the      writ<\/p>\n
     petitions        were     maintainable         and      that       an     error        was
\n     committed by this Court in relegating the petitioners to
\n     the civil Court.          The matters were remanded to this Court<\/p>\n
     for decision on merits.              The Apex Court while remanding
\n     the     matters         expressed     its       opinion           on      the       rival
\n     contentions raised by the parties,                      the details of which
\n     are referred in the latter part of the judgment so as to
\n     maintain proper sequence.             That is how, all these matters
\n     were placed before us for final hearing.\n<\/p>\n
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\n                                                  8<\/span><\/p>\n
     The Factual Matrix :\n<\/p>\n
     14           The factual matrix giving rise to each petition<\/p>\n
     is sketched hereinbelow:\n<\/p>\n
     W.P.No.9467\/2008 :\n<\/p>\n
     15.          The petitioner made an application on 22.2.2004
\n     requesting for allotment of plot reserved for multiplex.
\n     On 8.6.2004, the petitioner made a request for allotment<\/p>\n
     of    the    plot        in   Airoli    for     setting      up     multiplex-cum-\n<\/p>\n
     to    the    said<\/p>\n
     auditorium-cum-entertainment centre.\n<\/p>\n
                            application,         requested\n                                                                 CIDCO, in response\n                                                                 the     petitioner           to\n                           \n     submit       a         project        defining     their         future       built-up\n     activities.            The petitioner submitted                  detailed project\n     report.          CIDCO, by their letter of intent, requested the\n<\/pre>\n
     petitioner to pay an EMD of Rs.20,77,000\/- within 15 days<\/p>\n
     from the receipt of the letter to enable the Board to<\/p>\n
     consider the allotment in favour of the petitioner.                                    The
\n     petitioner          accordingly         made     EMD        on     29.6.2004.            On
\n     29.7.2004,         CIDCO approved the allotment of Plot                            No.2,<\/p>\n
     Sector 11, Airoli in favour of the petitioner as the
\n     Board    had       not    got    any    response      for    similar         plots       in
\n     public tender.            The total lease premium in respect of the
\n     plot was Rs.2,07,70,000\/- and the petitioner was directed<\/p>\n
     to    pay        the     balance       amount    of     Rs.1,86,93,000\/-                 by
\n     14.9.2004.          The allotment was made in terms of the New
\n     Bombay Land Disposal Regulations, 1975 and also in terms
\n     of the Land Pricing and Disposal Policy of CIDCO under
\n     which       the    land       could    be   allotted        to    any      person        by
\n     considering individual application at the reserved price
\n     fixed       by    CIDCO.         On     16.8.2004       and       13.9.2004,           the<\/p>\n
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\n                                             9<\/span>
\n     petitioner       paid     Rs.1,86,93,000\/-          as      demanded.                On<\/p>\n
     15.10.2004, CIDCO after inspection of the plot issued a
\n     corrigendum asking the petitioner to pay a further sum of<\/p>\n
     Rs.53,236\/-       being    the    additional        amount         due      to     the
\n     marginal increase in the demarcation of the plot.                                  The
\n     petitioner paid the balance amount of                              Rs.53,236\/-,<\/p>\n
     thus, making a total payment of Rs.2,08,22,420\/- being
\n     the full and final payment in respect of allotment in
\n     favour    of     the    petitioner     as   demanded         by     CIDCO.           An
\n     agreement to lease was entered into with CIDCO in respect<\/p>\n
     of the plot allotted to the petitioner.\n<\/p>\n
     16.<\/p>\n
                CIDCO, on 1.8.2005, issued a show cause notice to
\n     the petitioner regarding the plot at Airoli seeking to<\/p>\n
     cancel the agreement to lease executed in favour of the
\n     petitioner.       The petitioner submitted reply to the show
\n     cause    notice.        The petitioner also sought information<\/p>\n
     from     CIDCO    under     the   Right       to    Information             Act      on
\n     21.12.2005 \/ 3.4.2006 \/ 4.4.2006 \/ 13.4.2006 \/ 20.4.2006<\/p>\n
     regarding allotment to various parties and the details
\n     thereon.\n<\/p>\n
     17.        The    petitioner      on   28.10.2005,          approached           this
\n     Court against the cancellation order dated 18.12.2005 by
\n     way of present petition.               The petition was listed for<\/p>\n
     hearing on 2.1.2006 and this Court granted stay to the
\n     operation of the order dated 18.12.2005.                          Parties were
\n     asked    to    file    their   reply    and    rejoinder          etc.      in    the
\n     petition.      The matter was listed on 17.5.2006 for hearing
\n     and thereafter it was heard and dismissed in limine by an
\n     order dated 30th June, 2006 detailed hereinafter.\n<\/p>\n
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\n                                            10<\/span><\/p>\n
     W.P.No.9468\/2008 :\n<\/p>\n
     18.         The petitioner made an application for allotment<\/p>\n
     of plot on 18.5.2004 for construction of a multiplex at
\n     Kharghar Railway Station.             The first respondent, the City
\n     Industrial        Development       Corporation            (in   short        CIDCO )<\/p>\n
     asked the petitioner to pay an EMD of Rs.20 lakh being
\n     10%    of   the    tentative      price     of       the    plot    in     order       to
\n     consider      the       application       of     the        petitioner.              The
\n     petitioner deposited the said amount of EMD immediately.\n<\/p>\n
     CIDCO, vide its Board resolution dated 3.6.2004, approved<\/p>\n
     the allotment in favour of the petitioner considering the
\n     fact that there was no multiplex in the area and the
\n     earlier effort of CIDCO to advertise for such plots had<\/p>\n
     met with no response.               CIDCO issued allotment later in
\n     favour of the petitioner asking the petitioner to pay Rs.
\n     1,80,00,000\/- being the balance price of the plot. The<\/p>\n
     appellant made two separate payments of Rs.90 lakh each<\/p>\n
     towards the balance price of the plot on 16.8.2004 and
\n     19.8.2004.        The petitioner paid a sum of Rs.20,00,600\/-
\n     being the other charges demanded by the respondent.                                  The
\n     petitioner was asked to pay a further sum of Rs.65,096\/-,<\/p>\n
     which       the     petitioner        paid           immediately.                 CIDCO
\n     unilaterally        decided    to    ask       the    petitioner         to     pay      a
\n     further sum of Rs.20 lakh by enhancing the rate at which<\/p>\n
     the plot was to be allotted to the petitioner from Rs.
\n     2500 per square meter as demanded in the allotment letter
\n     to    Rs.2750     per    square     meter      because       the    plot      of     the
\n     petitioner was on a 24 meter road.                          The petitioner on
\n     17.11.2004 paid a further payment of Rs.20 lakh along
\n     with Rs.2,96,078\/- plus Rs.4957\/- being the additional
\n     cost and the other charges.               On 14.1.2005, the petitioner
\n     paid a further sum of Rs.19,828\/- being the sum demanded<\/p>\n
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\n                                                    11<\/span>
\n     by the respondent.                The petitioner on 17.1.2005 entered<\/p>\n
     into an agreement to lease with the respondent for the
\n     allotment of the plot.                    On 28.2.2005, CIDCO being the<\/p>\n
     development         authority       of        the   area        issued       commencement
\n     certificate to the petitioner permitting the petitioner
\n     to start construction.\n<\/p>\n
     19.           On   14.7.2005,           the    petitioner            received           a    show
\n     cause notice seeking to cancel the allotment in favour of
\n     the petitioner on the ground that the allotment was void<\/p>\n
     in    view    of    Section        23    of     the      Contract         Act      as       being<\/p>\n
     opposed to public policy.                      The main ground in the show
\n     cause notice was that the allotment was without issuance
\n     of     tender      and      was    opposed          to      public         policy.             On<\/p>\n
     27.7.2005,         the   petitioner submitted reply to the                                  show
\n     cause    notice.            On    16.12.2005,            CIDCO       issued        an       order
\n     cancelling the agreement to lease and sought to resume<\/p>\n
     the possession of the plot.\n<\/p>\n
     20.           With the above facts, the petitioner approached
\n     this     Court      on    28th     December,          2005        with       the      present
\n     petition against the impugned order of cancellation dated<\/p>\n
     16.12.2005 and this Court granted stay to the order dated
\n     16.12.2005 and adjourned the matter for further hearing
\n     on 4.1.2006.\n<\/p>\n
     21.           The petitioner, vide reference dated 8.3.2006 of
\n     CIDCO,    under       the    Right       to     Information            Act,      2005,       has
\n     asked them to supply information regarding the allotments
\n     made     by     the      Social     Service           Department             without          any
\n     advertisement               i.e.         by         considering                  individual
\n     applications.               On     16.3.2006,             the      petitioner               filed
\n     rejoinder          before        this     Court          pointing           out       further<\/p>\n
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\n                                         12<\/span>
\n     information sought under the Right to Information Act, so<\/p>\n
     as to demonstrate that the allotment in favour of the
\n     petitioner was completely in order and was made in terms<\/p>\n
     of the Land Pricing and Land Disposal Policy and also
\n     that   there   was    no    loss   caused    to     CIDCO       in     the     said
\n     allotments.\n<\/p>\n
     22.       The petitioner sought another information from
\n     the CIDCO authorities regarding methodology for allotment
\n     of     plots    for         service     industries,              warehousing,<\/p>\n
     multiplexes, etc.          Again on 4.4.2006, the petitioner had<\/p>\n
     sought for further information in respect of 15 cases
\n     similar to the case of the petitioner regarding whether
\n     disposal was by tender or without tender, whether the<\/p>\n
     pricing   policy      was    adopted    or      not,       etc.           Further
\n     information was sought on 13.4.2006 regarding allotment
\n     of social facility plots during April 2003 to March 2005.\n<\/p>\n
     CIDCO, vide its letter dated 13.4.2006, has informed the
\n     petitioner that during April 2003 to March 2005, 27 plots<\/p>\n
     were allotted for the opening of schools, 9 plots were
\n     allotted for opening of colleges, 5 plots were allotted
\n     to charitable and religious institutions, 9 plots were<\/p>\n
     allotted to cultural organizations, 2 plots were allotted
\n     for sports and 13 plots were allotted for social welfare.\n<\/p>\n
     23.       In all, 65 plots were allotted under the category
\n     of social facility. CIDCO has also confirmed that all the
\n     allotments had been made without issuance of tender and
\n     that all the above mentioned allotments had been made as
\n     per Land Pricing and Land Disposal Policy of CIDCO i.e.
\n     the same as was done in the case of petitioner.                           None of
\n     these allotments have been cancelled by CIDCO till date.\n<\/p>\n
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\n                                             13<\/span><\/p>\n
     24.        On     the    above      backdrop,             the      petitioner            is<\/p>\n
     contending that the entire basis for seeking to cancel
\n     the petitioner s plots is illegal and the same cannot<\/p>\n
     stand to the test of judicial scrutiny.\n<\/p>\n
     W.P.No.3423\/2006 :\n<\/p>\n
     25.        The     petitioner       made       an      application                on     4th
\n     December, 2003 through its Managing Director requesting
\n     for allotment of plot of land admeasuring 80,000 sq.mtr.<\/p>\n
\n\n\n\n\n                                        \n     at Kharghar hill for establishment of country club.                                    The\n     first respondent\n     for     similar\n                         ig    CIDCO having a plot of land earmarked\n                        purpose,      considered            the      request         of     the\n<\/pre>\n
     petitioner and called upon the petitioner to pay Rs.39.52<\/p>\n
     lakh on or before 20th April, 2004 before 20th April, 2004
\n     constituting 10% of the value of the plot as EMD so as to
\n     enable the CIDCO to place the proposal of the petitioner<\/p>\n
     before the Board of Directors. CIDCO further requested
\n     the petitioner to submit registration certificate either<\/p>\n
     under    the    Trust    Act   or    the    Society             Registration           Act
\n     before allotment\/ possession of the land so that the case
\n     of the petitioner could be considered for allotment                                      at<\/p>\n
     subsidized        rate   in    terms      of        the     policy;          otherwise
\n     commercial rates were to attract                          for such allotment.
\n     The petitioner in terms of the letter of CIDCO deposited<\/p>\n
     a sum of Rs.39.52 lakh with them.\n<\/p>\n
     26.        The petitioner got its trust deed registered on
\n     14th    May,    2004;    wherein    six     Trustees            were       appointed.
\n     Amongst others, objectives of the Trust are to establish
\n     and support, maintain and run sports club, gymnasium,
\n     health club, amusement park, yoga centre, water sports
\n     etc. and to carry out activities relating thereto.                                     One<\/p>\n
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\n                                                 14<\/span>
\n     of the trustees of the Platinum Square Trust                                 vide his<\/p>\n
     letter dated 18th May, 2004 addressed to the Assistant
\n     Charity Commissioner, Thane gave his no objection for the<\/p>\n
     Platinum Square Trust to use his address as registered
\n     address of the Trust.\n<\/p>\n
     27.          The     petitioner       was    alloted       50,350         sq.mtr.       Of
\n     land    by       CIDCO   for    a   total     sale    consideration             of    Rs.
\n     3,43,70,800\/-.           Out of the said amount of consideration,
\n     the petitioner had already deposited Rs.39.52 lakh as<\/p>\n
     such     the       petitioner        was     directed         to     deposit          Rs.\n<\/p>\n
     1,52,09,400\/- in two installments i.e. on 30th July, 2004
\n     and 29th August, 2004 being the balance lease premium
\n     payable in respect of the subject plot.                        In the allotment<\/p>\n
     letter, it was specifically mentioned that                                payment of
\n     lease premium in a stipulated period is an essence of
\n     concluded contract.                  It was further provided in the<\/p>\n
     allotment letter that extension of time could be granted
\n     which would be up to 3 months for payment of the first<\/p>\n
     installment and up to 16 months for the payment of the
\n     second installment.               It was provided therein that up to 3
\n     months the petitioner would be charged 13% interest and<\/p>\n
     beyond       3    months    the     petitioner       would      be     charged        16%
\n     interest for the extended period of time.\n<\/p>\n
     28.          The petitioner, on 15th September 2004, paid the
\n     first installment of Rs.1,52,09,400\/- within the extended
\n     time permitted under the allotment i.e. within 2 months
\n     from the due date and within 3 months from the date of
\n     allotment of the plot.                The petitioner, on 3rd May, 2005,
\n     wrote    letter       to    the     CIDCO    for   extension          of    time      for
\n     making       payment       of   second      installment       up     to     December,
\n     2005.        Clearly in terms of the allotment letter, the<\/p>\n
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\n                                         15<\/span>
\n     petitioner could ask extension of second installment up<\/p>\n
     to 29th December, 2005.\n<\/p>\n
     29.       The petitioner Trust was registered under the
\n     Bombay Public Trust Act, 1950 on 19th April, 2005.                             The
\n     petitioner submitted documents to CIDCO on 25th May, 2005<\/p>\n
     evidencing registration of the Trust.\n<\/p>\n
     30.       The petitioner, on 20th July, 2005, received show
\n     cause notice seeking to cancel the allotment made in<\/p>\n
     favour    of    the   petitioner    on   the     basis        of     Shankaran
\n     Report.\n<\/p>\n
     31.       The petitioner, on 3rd August, 2005, submitted<\/p>\n
     its detailed reply to the show cause notice challenging
\n     the cancellation of allotment of plot, reiterating that
\n     the allotment was in accordance with law as such it could<\/p>\n
     not be cancelled.\n<\/p>\n
     32.       The    petitioner,   on    29th    December,          2005,       wrote
\n     letter to the Marketing Manager of CIDCO requesting him
\n     to accept payment of second installment being the last<\/p>\n
     date up to which the extension could be granted under the
\n     allotment.      However, CIDCO refused to accept the payment.
\n     The petitioner on the same date wrote another letter<\/p>\n
     recording the fact that CIDCO has refused to accept the
\n     second installment and that the petitioner would not be
\n     liable to pay any further interest from the said date and
\n     that the allotment could not be canceled on the ground
\n     that the payment has not been made by the petitioner.
\n     The petitioner also informed the respondent that they
\n     would be responsible for any damages, liabilities arisen
\n     out of nonacceptance of payment.\n<\/p>\n
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\n                                             16<\/span><\/p>\n
     33.        The petitioner was served with the order dated
\n     28th   April,     2005    canceling      allotment          of     plot      made      in<\/p>\n
     favour of the petitioner.\n<\/p>\n
     34.        Being        aggrieved      by   the       aforesaid           order        of<\/p>\n
     cancellation, the petitioner approached this Court on 11th
\n     May, 2006 by way of present petition filed under Article
\n     226 of the Constitution of India.                  This Court by an order
\n     dated    17th    May,    2006    stayed     the     impugned          action       and,<\/p>\n
     thereafter,        on 22nd March, 2007 admitted petition for
\n     final hearing.\n<\/p>\n
     Rival Submissions Common to All :\n<\/p>\n
     35.        Heard        learned       counsel         appearing            for       the
\n     respective parties.             Rival submissions advanced by them<\/p>\n
     are sketched hereinbelow:\n<\/p>\n
     36.        The gravamen of the submissions of the learned
\n     senior counsel for the petitioners is that the allotment<\/p>\n
     made in favour of the petitioners was cancelled by CIDCO
\n     by issuing       show cause notices wherein CIDCO had referred
\n     to     Shankaran       report    in    relation        to     the      petitioners
\n     alleging        that    in   the      allotment        in      favour         of     the<\/p>\n
     petitioners, CIDCO had suffered losses and in the same
\n     show cause notices, according to the petitioners, the
\n     only ground seeking to cancel the allotment was non-
\n     issuance of tender before making allotment in favour of
\n     the petitioner and the same being void under section 23
\n     of the Contract Act          was opposed to the public policy.\n<\/p>\n
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\n                                                17<\/span><\/p>\n
     37.        It    was       urged     that       in     the      case       of     Popcorn<\/p>\n
     Entertainment and Platinum Entertainment when the Writ
\n     Petition was initially filed in this                          Court the same was<\/p>\n
     dismissed by this Court relegating the petitioner to seek
\n     alternative      remedy       by   filing       a    civil        suit,        which     was
\n     challenged by the petitioners before the Hon’ble Supreme<\/p>\n
     Court    and    the        Hon’ble     Supreme         Court       by      a    detailed
\n     judgment reported in 2007 (9) SCC 593 allowed the Civil
\n     Appeal    filed       by     the     Petitioner.              According           to     the
\n     petitioners, the Hon’ble Supreme Court noted extensively<\/p>\n
     the     arguments      canvassed          before       the      Court       and        while<\/p>\n
     remanding the matter specifically held that the arguments
\n     advanced should be taken into consideration by the High
\n     Court before deciding the instant writ petition.                                         The<\/p>\n
     Hon’ble Supreme Court in para 48, however was pleased to
\n      set aside the order of CIDCO seeking to resile from a
\n     concluded contract in favour of the appellants.                                          The<\/p>\n
     Hon’ble Supreme Court in para 49 was further pleased to
\n     record as under :\n<\/p>\n
                  49.     It is also pertinent to mention that
\n                 CIDCO in the show-cause notice has taken the
\n                 ground of non-issuance of tender as the only
\n                 basis for cancelling the allotment and CIDCO in<\/p>\n
                 the final order has also confined itself to the
\n                 non-issuance of tender as the ground for
\n                 cancellation but in the reply to the writ
\n                 petition, CIDCO is seeking to add further
\n                 grounds to justify the order of cancellation,<\/p>\n
                 which is clearly not permissible in terms of the
\n                 law laid down by this Court in several of its
\n                 decisions.\n<\/p><\/blockquote>\n
     38.        According to the learned senior counsel, in terms
\n     of the clear observations of the Hon’ble Supreme Court in
\n     paras-    48    and    49,    it     is   not       open     to    CIDCO        to     argue
\n     anything further or to enlarge the scope of the writ<\/p>\n
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\n                                             18<\/span>
\n     petition by trying to argue any other ground other than<\/p>\n
     the non-issuance of tender as the basis for cancellation
\n     of the allotment.\n<\/p>\n
     39.          According    to     the    learned          senior         counsel,        the
\n     superior      court,     normally,          while      remanding          the      matter<\/p>\n
     mentions that the lower                court be not, in any manner,
\n     influenced by the observations made in the remand order.
\n     That is how,         in the instant cases, the Supreme Court has
\n     in paragraph 50 & 51, specifically mentioned that the<\/p>\n
     High    Court    should     consider         all       the     submissions            made
\n     before    the
\n                      Hon’ble
\n     matter afresh on merit.\n<\/p>\n
                                    Supreme       Court        while         deciding        the<\/p>\n
     40.          Learned senior counsel addressed us on merits on
\n     the four aspects of the matter categorized hereinbelow:\n<\/p>\n
     I.           Whether     CIDCO    is    justified            in      canceling          the<\/p>\n
     allotment as being opposed to public policy under Section
\n     23 of the Contract Act on the only ground that tender had
\n     not been issued prior to making allotment in favour of
\n     the petitioner?\n<\/p>\n
     a.           It is urged that the New Bombay Land Disposal
\n     Rules are the specific rules governing the disposal of<\/p>\n
     land to be done by CIDCO.              Rule 4 of the said rules which
\n     is    quoted    in     opening    part       of      this      judgment          clearly
\n     provides that CIDCO has the authority to dispose plots of
\n     land    by    public     auction       or    tender         or     by     considering
\n     individual application as the corporation may determine
\n     from time to time.\n<\/p>\n
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\n                                       19<\/span><\/p>\n
     b.        It    is   further   urged   that   the      CIDCO       has     been<\/p>\n
     relying upon the aforesaid rule in this court to justify
\n     the allotments made in favour of commercial complexes,<\/p>\n
     societies as well as sports complexes saying that such
\n     allotment made without issuance of tender were justified
\n     as being within the power vested in CIDCO under Rule 4 of<\/p>\n
     the NBDL rules.       The affidavits filed by CIDCO in respect
\n     of allotment above are in the following cases:\n<\/p>\n
                (i)      Sunil Patil (P.I.L. No. 45879 of 2003)
\n                K. Raheja Corporation<\/p>\n<\/blockquote>\n
                (ii)     Shakti  Commercial             Premises           Society
\n                (W.P. No. 3970 of 2005)<\/p>\n<\/blockquote>\n
                (iii)    Sanjay Damodar Surve Vs.                   D.Y.       Patil
\n                Sports Academy (PIL No.140\/2004)<\/p>\n<\/blockquote>\n
                (iv)     Public Concern for              Government            Trust
\n                (W.P.No.43 of 2005)
\n                         Amey   Co-Operative             Housing           Society
\n                Limited.<\/p><\/blockquote>\n
               Amongst the four writ petitions mentioned above,
\n     three    were    cases   where    Shankaran       had      made       adverse
\n     comments stating that CIDCO has suffered huge losses in<\/p>\n
     the said allotment as the same had been done without
\n     inviting tenders.        The loss in each of the cases was as
\n     under.\n<\/p>\n
                      Name                                        Loss Amount\n\n               Shakti Commercial                              Rs.35.00 crore\n\n               Amey Co-Operative                              Rs.40.00 crore\n\n               K.Raheja                                       Rs.49.75 crore\n\n\n\n\n                                              ::: Downloaded on - 09\/06\/2013 14:58:07 :::<\/span>\n                                             20<\/span>\n               According       to     the    petitioner,          all      the      above\n\n\n\n\n                                                                            \n<\/pre>\n
     allotments have been regularized by CIDCO and no action
\n     whatsoever has been taken to cancel the above allotments.\n<\/p>\n
     c.        Learned senior counsel for the petitioners urged
\n     that in view of the fact that the rules provide for three<\/p>\n
     methods of disposal i.e. by tender, by public auction or
\n     by    considering        individual         applications,           CIDCO        vide
\n     various board resolutions have specifically provided the
\n     exact    method   of     disposal      for    various      types       of     plots.\n<\/p>\n
     CIDCO accordingly has framed the Land Pricing and Land<\/p>\n
     Disposal Policy as approved by various board resolutions
\n     wherein various categories of plots are mentioned like
\n     for   instance    residential use, commercial use, use                             for<\/p>\n
     public utility etc.              In the case of commercial plots
\n     where FSI 1.5 is permitted the land price rate determined
\n     under the policy is 450% of the reserve price and the<\/p>\n
     method of disposal is by tender and in the alternative at
\n     fixed rate.       Similarly, for allotment of multiplexes the<\/p>\n
     rate specified under the policy is at reserve price and
\n     the method of disposal is upon request at fixed rate or
\n     by competitive bidding.                The two different methods of<\/p>\n
     disposal between a commercial allotment and the allotment
\n     for   multiplex     is    significant         because      in     the     case       of
\n     commercial allotment, by tender is the first method of<\/p>\n
     disposal prescribed and at fixed rate is the alternative
\n     method    of   disposal     prescribed        whereas       in    the      case      of
\n     allotment for multiplex\/auditorium on request at fixed
\n     rate is the first method and by competitive bidding is
\n     the alternative method of allotment.\n<\/p>\n
     d.        Learned        senior     counsel        further          urged        that
\n     similarly,        in       the         case      of         allotment              for<\/p>\n
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\n                                                21<\/span>
\n     stadium\/recreation             activity\/amusement               park\/golf           course<\/p>\n
     i.e. Allotment in the case of Platinum Square Trust the
\n     land price of open area\/running track is specified to be<\/p>\n
     10%     of    the       reserve     price       and        of     area        used        for
\n     construction is to be at 50% of the reserve price and the
\n     method of disposal is only upon request at fixed rate<\/p>\n
     from the registered trust\/registered                            under the Public
\n     Trust Act\/SRA.            In view of the above, it is urged that
\n     the allotments in favour of the petitioners were clearly
\n     in conformity with the rules and also in conformity with<\/p>\n
     the Land Pricing and Land Disposal Policy framed by CIDCO<\/p>\n
     for allotment of various types of land in the Navi Mumbai
\n     area.\n<\/p>\n
     e.           It was further submitted that the Supreme Court
\n     in the case of Chairman & MD, BPL                               v. S.P. Gururaja,<\/a>
\n     2003    (8)    SCC      567;      Printers       (Mysore)          Ltd.         v.     M.A.\n<\/p>\n
     Rasheed & Ors., 2004 (4) SCC 460 has clearly held that a<\/p>\n
     development      authority         while       allotting         land       can      do    so
\n     without      calling for tender or without inviting                                 offers
\n     from    the    general         public    if    the      statutory          regulations
\n     regarding disposal of land by public authority permit the<\/p>\n
     authority to do so.               In other words, if the authority
\n     under the statutory regulations for disposal of land has
\n     the right to consider individual applications for making<\/p>\n
     the allotment, then the same cannot be faulted on the
\n     ground that no tender has been called for before making
\n     the said allotment.               Reliance is placed on the Supreme
\n     Court judgment in              the case of Kasturi Lal Lakshmi Reddy
\n     v. State of J & K reported in 1980 (4) SCC 1; wherein the
\n     Hon’ble       Supreme     Court     has       held    that       the     State        while
\n     considering         a   proposal        is     not     required          to     ask       the
\n     proposer to wait for an advertisement and apply against<\/p>\n
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\n                                              22<\/span>
\n     the same instead of considering the proposal directly in<\/p>\n
     the larger interest of the State.\n<\/p>\n
     f.           It was also pointed out during the course of
\n     arguments that a similar case like that of the petitioner
\n     was the case of Sunil Pannalal Banthia,                        whose allotment<\/p>\n
     had also been cancelled on the only ground that the same
\n     had been made without inviting tenders.                            In that case
\n     also a Division Bench of this                   Court had dismissed the
\n     writ    petition        by     relegating      the      petitioner            to     the<\/p>\n
     alternative remedy of filing a civil suit against which<\/p>\n
     order the petitioner in that case had preferred a special
\n     leave petition which was tagged along with the cases of
\n     first two petitioners as ground for cancellation in both<\/p>\n
     the    cases    were       identical.          While       referring          to     the
\n     judgment in the case of Sunil Pannalal Banthia, reported
\n     in    2007   (10)      SCC    674       paras-       3,4,5,6,9,11,12,14,17,<\/p>\n
     20,21, and 22; wherein the Supreme Court has held that
\n     once an allotment had been made in favour of a party,<\/p>\n
     CIDCO has no right thereafter to cancel the allotment on
\n     the ground that no tenders had been invited.                           The Supreme
\n     Court    also       held      that   the     CIDCO     had      power       to     make<\/p>\n
     allotment without calling for tender under rule 4 of the
\n     NBDL Rules and thus also it could not be said that the
\n     allotment in favour of Sunil Pannalal Banthia was in any<\/p>\n
     manner contrary to the rules for making such allotment.
\n     According      to    the      learned   senior       counsel,        the      subject
\n     judgment        also         deals    on      indoor         management            very
\n     specifically.          It was also sought to be pointed out that
\n     the allotment in favour of Sunil Pannalal Banthia was a
\n     commercial      allotment where the method of disposal                               was
\n     different under the policy formulated by CIDCO i.e. where
\n     tender was the first option and on request was the second<\/p>\n
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\n                                              23<\/span>
\n     option       still    the    Hon’ble         Supreme    Court        quashed         the<\/p>\n
     decision of CIDCO in seeking to resile from the allotment
\n     in favour of the petitioner therein.\n<\/p>\n
                   According to the petitioners, the counsel for the
\n     CIDCO had opposed the matter before the Supreme Court and<\/p>\n
     had sought remand of the matter on the ground that the
\n     case of Banthia was identical to the case of the first
\n     two    petitioners         herein;      where     the     Supreme        Court       had
\n     already remanded the matter to the High Court, but the<\/p>\n
     said    ground       was    rejected     by    the     Supreme       Court       while<\/p>\n
     allowing the Special Leave Petition.\n<\/p>\n
     case of the petitioner before this Court that once CIDCO
\n                                                                 It is, thus, the<\/p>\n
     had taken a specific stand before the Supreme Court that<\/p>\n
     the case of the petitioner is identical to the case of
\n     Banthia it is not open to CIDCO to argue before this
\n     Court to the contrary.\n<\/p>\n
     g.            It was further urged that the allotment in favour<\/p>\n
     of     the    petitioner         had   been     made      by     following           the
\n     procedure prescribed for the same and that the allotment
\n     had    been    made     by the Board of Directors of CIDCO                             by<\/p>\n
     considering       all      objections        raised    during       deliberations
\n     and in fact in the board note it was mentioned in the
\n     case    of    Popcorn      Entertainment        as     well    as     of    Platinum<\/p>\n
     Entertainment that no useful purpose would be served in
\n     inviting       tenders      as   in    the    recent    past      there       was      no
\n     response to global and national tenders for a multiplex
\n     in     the    developed      Vashi      node     as    against         Airoli        and
\n     Kharghar which were much less developed than Vashi.\n<\/p>\n
     h.                         It was also pointed out at the time of
\n     hearing that a public utility plot has never been put to<\/p>\n
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\n                                          24<\/span>
\n     tender by CIDCO till date and the information in that<\/p>\n
     regard had been provided to the petitioners under the
\n     Right to Information Act, for the period April 2003 to<\/p>\n
     March 2005 (during which period the allotments had been
\n     made in favour of the petitioners).                 The learned senior
\n     counsel while referring to the chart provided by CIDCO to<\/p>\n
     the     petitioners       under     Right    to       Information             Act,
\n     specifically,     relied on the specific mention that                           the
\n     allotment to all the 56 allottees have been made without
\n     inviting tenders as per Land Pricing and Land Disposal<\/p>\n
     Policy and the price charged is as per the policy as<\/p>\n
     approved vide board resolution mentioned in respect of
\n     each of the allotment.          These allotments were done in the
\n     period of Mr.V.M.Lal as MD of CIDCO but this was not<\/p>\n
     scrutinized by Dr.D.K.Shankaran at all and even though
\n     these    allotments were made without tender not forming
\n     part of the enquiry report.\n<\/p>\n
     i.         It was also pointed out by the learned senior<\/p>\n
     counsel to this Court during the course of hearing that
\n     no prior applicant had ever shown interest in respect of
\n     the     plot   allotted    to     the    petitioners        and      the      said<\/p>\n
     information was also provided to the petitioners under
\n     the Right to Information Act, in respect of M\/s.Popcorn
\n     and M\/s.Platinum respectively.            We may place it on record<\/p>\n
     that the material sought to be referred to and relied
\n     upon by the learned senior counsel for the petitioners is
\n     available on record.\n<\/p>\n
     j.         It was also pointed out to us that on remand,
\n     writ petition No.2275\/1993 (S.K.Agarwal & Ors. Vs. CIDCO
\n     & Ors) was listed along with the writ petitions filed by
\n     the present petitioners wherein the cancellation had been<\/p>\n
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\n                                                25<\/span>
\n     done on the ground that no tender had been invited prior<\/p>\n
     to the making of the allotment and that the allotment was
\n     in breach of section 23 of the Contract Act as such it<\/p>\n
     was opposed to public policy.                        The said writ petition
\n     was    also    allowed       by    a     Division      Bench       of    this     Court
\n     comprising of Hon’ble Chief Justice and Justice Ranjana<\/p>\n
     Desai vide its order dated 2nd May, 2008, the copy of
\n     which was also made available to us.                           In the said writ
\n     petition a point was raised that the Banthia judgment
\n     would not apply to that case because in Banthia’s case<\/p>\n
     substantial          construction          had    been        done       after        the
\n     allotment
\n                         and     on      that
\n     distinguishable, the learned Division Bench
\n                                                    basis         the        cases
\n                                                                             vide paras-\n<\/p>\n
                                                                                         were<\/p>\n
     29,31,32 & 36             rejected the said argument and held that<\/p>\n
     in    law   the      same    will       not   make     any    difference          while
\n     setting aside the order of the CIDCO seeking to resile
\n     from the concluded contract.                     According to the learned<\/p>\n
     senior counsel, in the petitioners’ case also CIDCO is
\n     trying to argue & add the same distinguishing feature as<\/p>\n
     one of the grounds for not following the judgment in the
\n     case of Sunil Pannalal Banthia.                   In this submission, this
\n     court need to follow the judgment of the learned Division<\/p>\n
     Bench delivered in the case of S.K.Agarwal (supra)<\/p>\n
     k.          It was urged that the allotment in favour of<\/p>\n
     Popcorn       and    Platinum       Entertainment         were       cancelled          on
\n     16.12.2005 and 18.12.2005 respectively whereas Mr. Ashok
\n     Sinha, the Managing Director of CIDCO in reply to the
\n     Accountant General of Maharashtra to an audit para on 21st
\n     April, 2006 (which is produced at pages 42 and 46 of
\n     compilation-1), has clearly justified the allotment both
\n     on the ground that no tender were invited and also on the
\n     ground      that      price       was     correctly       charged          from       the<\/p>\n
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\n                                                 26<\/span>
\n     petitioners and that the loss alleged by Shankaran was<\/p>\n
     without       any     basis.          According          to      the        petitioners,
\n     Mr.Ashok Sinha, while justifying the allotment, clearly<\/p>\n
     distinguished a public utility allotment for multiplexes
\n     and a commercial allotment saying that the profitability
\n     in both the allotments being substantially different the<\/p>\n
     prices for these two allotments were not comparable in
\n     any manner.           The said justification, according to the
\n     learned    counsel,            was    done      by     Mr.Sinha          without        even
\n     noticing       the    fact     that    public          utility         allotment          for<\/p>\n
     multiplex       was     only    with       1    FSI     whereas         a     commercial
\n     allotment
\n     further
\n                    was
\n                            with
\n                   distinguishing
\n                                    1.5     FSI
\n                                           feature
\n                                                     because
\n                                                            between
\n                                                                    such
\n                                                                             a
\n                                                                              fact      is
\n                                                                                   commercial
\n                                                                                               the<\/p>\n
     allotment       and     the    allotment         made       for      public        utility<\/p>\n
     (multiplex).          Shri. Sinha has further confirmed in his
\n     letter to the Accountant General that the allotment has
\n     been done strictly in terms of the Land Pricing and Land<\/p>\n
     Disposal       Policy      which     has       been    framed        under       the      New
\n     Bombay Disposal of Land Regulations, 1975 which in turn<\/p>\n
     had    been    published        in    the      Government           Gazette        on     the
\n     approval of the State Government.\n<\/p>\n
     l.                         It was further argued before this                           Court
\n     that cancellation under Section 23 of the Contract Act is
\n     not a power available to the executive as the Contract<\/p>\n
     Act,    specifically,          confers          the     said       power       upon       the
\n     courts.       A judgment of the Hon’ble Supreme Court on the
\n     subject reported in 2005 (12) SCC 77 was relied upon                                      and
\n     paras- 36, 37, 41, 42, 50 and 63 thereof were pressed
\n     into    service       to   contend      that      the       said      power       is    only
\n     available to the Court and on the concept of separation
\n     of    power,         the said power is not exercisable by                                 the
\n     executive unilaterally without reference to the Court.\n<\/p>\n
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\n                                            27<\/span><\/p>\n
     II.        Whether CIDCO has suffered any loss in making the
\n     allotment in favour of the petitioner?\n<\/p>\n
     a.         It   was    specifically        contended          that      the      said
\n     ground is not available to CIDCO in the case of Popcorn<\/p>\n
     Entertainment and Platinum Entertainment in view of the
\n     specific      observation       of     Hon’ble        Supreme          Court         in
\n     paragraph 49 of its judgment quoted hereinabove.                               It is
\n     also not available in the case of Platinum Square Trust<\/p>\n
     to the CIDCO because in the cancellation order there is<\/p>\n
     the   same    while<\/p>\n
     no whisper of the Shankaran report and CIDCO has accepted
\n                           making    the     cancellation           and     hence       the
\n     question of considering any loss does not arise at all in<\/p>\n
     any of the three writ petitions.\n<\/p>\n
     b.         Without prejudice to the above contentions made<\/p>\n
     regarding the fact that the question of loss cannot be<\/p>\n
     gone into by the High Court, the petitioners have also
\n     urged that, in fact, there was no loss caused to CIDCO in
\n     making the allotments to the petitioners.\n<\/p>\n
     c.         The petitioners have again reiterated                          that all
\n     the public utility allotments by CIDCO have been made not
\n     only without inviting tenders but also strictly at the<\/p>\n
     rates specified under the Land Pricing And Land Disposal
\n     Policy and the method of disposal also under the same
\n     policy is by considering individual application at the
\n     reserve price, there is no question of any loss to CIDCO
\n     in making the allotment.\n<\/p>\n
     d.         Learned     senior        counsel      for      the       petitioners
\n     relying      upon   para-48    of    the   judgment          of    the      Hon ble<\/p>\n
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\n                                           28<\/span>
\n     Supreme Court in the case of M\/s.Popcorn and M\/s.Platinum<\/p>\n
     urged that it is not open to CIDCO to contend that there
\n     has been any loss caused to CIDCO while CIDCO is trying<\/p>\n
     to provide entertainment facility in an area which is
\n     completely devoid of the same.\n<\/p>\n
     e.          Learned    senior     counsel        also       urged        that       as
\n     regards     the     allotment     in      case     of     M\/s.Popcorn             and
\n     M\/s.Platinum, the reserve price of CIDCO was Rs.2,000\/-
\n     and Rs.1,800\/- respectively, and in the case of Mohan<\/p>\n
     Entertainment where the reserve price was Rs.3,220\/-, the<\/p>\n
     allotment had been made at 25% above the reserve price
\n     which should be Rs.4,025\/- rounded off to Rs.4,000\/- and
\n     in the case of Popcorn Entertainment upon adding the 25%<\/p>\n
     the reserve price became Rs. 2,500\/- the allotment was to
\n     be   made   at    Rs.2,500\/-    as     done   in    Mohan       Entertainment
\n     however a further amount of Rs.250\/- was added being 10%<\/p>\n
     of the effective sale price on the basis of the road
\n     width available to such allottee.                  Similarly in the case<\/p>\n
     of   Platinum     Entertainment        the    reserve        price       was      Rs.
\n     1,800\/-, 25% thereof was Rs. 450\/- and further 35% was
\n     added with the road width making the allotment price to<\/p>\n
     be   made   at    Rs. 3037.50 which was rounded off to                            Rs.
\n     3,100\/- per sq.mtrs, which rounding off was on the higher
\n     side   as    against    rounding       off    in    the      case      of      Mohan<\/p>\n
     Entertainment which was on the lower side.                       Thus, in the
\n     case of Platinum Entertainment the price worked out was
\n     Rs.3,037.50 rounding off at Rs. 3100\/- whereas in the
\n     case   of   Mohan     Entertainment       was      Rs.4,025\/-         which       was
\n     rounded off to Rs.4,000\/-.\n<\/p>\n
     f.          Learned senior counsel for the petitioners urged
\n     that   as   regards    the   so   called        losses      referred         to     by<\/p>\n
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\n                                              29<\/span>
\n     Dr.D.K.Shankaran, the petitioners came to know the basis<\/p>\n
     thereof after the remand order by the Hon’ble Supreme
\n     Court     when       another       party     had     asked         for      the      said<\/p>\n
     information under the Right to Information Act and the
\n     petitioners obtained the same from the said party.                                     The
\n     basis     for        calculating        the       loss       as       computed           by<\/p>\n
     Dr.Shankaran is by comparing the allotment in favour of
\n     the petitioners, which is a public utility having 1 FSI,
\n     with the highest price obtained anywhere in the node in
\n     respect       of     a    commercial       allotment         having         1.5      FSI.\n<\/p>\n
     Similar calculation of loss had been done in the case of
\n     Mohan
\n     Report,<\/p>\n
               Entertainment          and,      according
\n                   the highest price for commercial plot in Vashi
\n                                                                 to     the      Shankaran<\/p>\n
     had gone at Rs.21,831\/- as against Rs.18,490\/- in Airoli<\/p>\n
     and     Rs.14,475\/-         in     Kharghar.       The      loss       reported          by
\n     Shankaran Report, accordingly, on that basis was Rs.23
\n     crore    in    the       Mohan   Entertainment,          Rs.10       crore      in     the<\/p>\n
     Platinum       Entertainment,         Rs.9.5       crore      in      the     case       of
\n     Popcorn        Entertainment.               Thus,        according            to       the<\/p>\n
     petitioners,         the computation of loss is without basis as
\n     two unequals have been compared and the entire reasoning
\n     for calculating the loss cannot stand to the test of<\/p>\n
     judicial scrutiny.\n<\/p>\n
     g.         Moreover as regards the Shankaran report it was<\/p>\n
     specially       pointed      out    that     the    said       report        had     been
\n     prepared       ex-parte      i.e.    Without       issuing         notice       to     the
\n     petitioners and along with the show cause notices issued
\n     to the petitioner also the said report was not furnished
\n     in spite of reliance having been placed on the same in
\n     the     show       cause     notices        and      the       petitioners             had
\n     specifically, asked for the said report in their reply to
\n     the show cause notices and the same was not provided to<\/p>\n
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\n                                             30<\/span>
\n     the petitioners before passing the impugned cancellation<\/p>\n
     orders.      In this view of the matter, it is urged that the
\n     Shankaran report could not, in any manner, be utilized<\/p>\n
     for any purpose whatsoever in order to find fault with
\n     the allotment made in favour of the petitioners.\n<\/p>\n
     h.          It was also sought to be urged that when the
\n     learned Division Bench of this High Court while hearing a
\n     public interest litigation questioning the allotment in
\n     favour of Amey Co-operative had passed some strictures<\/p>\n
     against the State Government, the State of Maharashtra<\/p>\n
     had filed the Special Leave Petition in the Supreme Court
\n     seeking to expunge those strictures and in Supreme Court
\n     a specific stand had been taken by the learned Advocate<\/p>\n
     General      of   the    State    of    Maharashtra        saying        that      the
\n     Shankaran Report was only a preliminary report meaning
\n     thereby that no action could have been taken on the basis<\/p>\n
     of    the   same.        The    statement    of   the      learned        Advocate
\n     General was pointed out to us by referring to paragraph<\/p>\n
     44 of the judgment of the Hon ble Supreme Court in the
\n     case of Amey Coop. Housing Society Ltd. v. Public Concern<\/a>
\n     for Governance Trust,            (2007) 4 SCC 635.\n<\/p>\n
     i.          It is also canvassed that the allotment in favour
\n     of M\/s.Platinum Square had been compared by Dr.Shankaran<\/p>\n
     to an allotment in favour of BARC to contend that CIDCO
\n     has suffered losses to the extent of 11 crore.                                   Once
\n     again,      according     to    the    petitioners,        Dr.Shankaran            has
\n     committed a grave mistake by comparing the allotment of
\n     the    petitioners,        in    which      allotment,        the      petitioner
\n     effectively       gets    0.4    FSI   as    against     the      allotment          in
\n     favour of the BARC which gets 1 FSI for the entire plot.
\n     There was no comparable data or allotment available to<\/p>\n
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\n                                              31<\/span>
\n     CIDCO or Dr.D.K.Shankaran for Country Club at Kharghar<\/p>\n
     Hill Plateau.\n<\/p>\n
     j.         As regards the loss is concerned, it is also
\n     submitted that the petitioners had applied to the CIDCO
\n     under the Right to Information Act to find out as to<\/p>\n
     whether the allotment had been made as per the policy
\n     prevalent       and    also    at    the    price     prescribed           by     CIDCO.
\n     CIDCO,     in   reply     to    the    query    of      the     petitioner,            has
\n     categorically mentioned that the allotment was strictly<\/p>\n
     in terms of the Land Pricing and Land Disposal Policy and<\/p>\n
     at the price prescribed under the same hence no loss was
\n     caused to CIDCO. The said answers are produced on record.
\n     It   was   also       pointed    out    to    us     that      Dr.Shankaran            had<\/p>\n
     reported loss in number of allotments pointed out by the
\n     petitioners (data receive under RTIA from CIDCO itself)
\n     varying     from      massive       63.55    crore,       49.75       crore,        22.60<\/p>\n
     crore etc.       It was sought to be canvassed that in none of
\n     the cases any recovery of loss have been made by CIDCO<\/p>\n
     and none of the allotments apart from the petitioners
\n     have been cancelled,            and that almost all the allotments
\n     have   been     regularized.           According to the petitioners,<\/p>\n
     they are the only one who are singled out.                                  Hence the
\n     impugned action of the CIDCO is bad                     in law.\n<\/p>\n
     III.       Whether the allotment in favour of the petitioner
\n     is in any manner arbitrary or unjustified?\n<\/p>\n
                It is not necessary to reproduce submissions made
\n     on this count in view of the earlier submissions already
\n     sketched; wherein reliance was placed on the assertion of
\n     the CIDCO in reply to the RTI query wherein CIDCO has
\n     replied that the          allotment was made strictly as per the<\/p>\n
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\n                                                32<\/span>
\n     Land     Pricing      and     Land    Disposal             Policy       there        is     no<\/p>\n
     question      of    alleging       that        the    allotment          were       in     any
\n     manner       arbitrary      or    unjustified.                   According          to     the<\/p>\n
     petitioners, all the files of allotments had been moved
\n     from all concerned departments like Marketing, planning,
\n     Economics, MD and, Ultimately, Board of Directors, who<\/p>\n
     had finally approved the allotment considering need of
\n     Entertainment         facility            in     Navi        Mumbai         after          due
\n     discussions on all possible aspects.                            Hence the question
\n     of arbitrary allotment is imaginary is the submission of<\/p>\n
     the petitioners.\n<\/p>\n
     General Submissions of the Petitioners :\n<\/p>\n
     41.          The    learned       counsel       for      the      petitioners             also
\n     relied       upon     the     allotment          in        the     case        of     Mohan
\n     Entertainment         claiming        it       to     be        similar       allotment;\n<\/p>\n
     wherein loss of 23 crore had been reported by CIDCO and<\/p>\n
     which         has    been     approved          and     regularized            by     CIDCO
\n     contending         that   CIDCO      is    trying          to    justify        the       said
\n     allotment by contending that the same had been done after
\n     testing the market.               According to the petitioners, the<\/p>\n
     said stand of CIDCO is misleading because the plot had
\n     been put to tender in the year 1998-99; wherein the plot
\n     did    not    receive       any   offer        even     at      the    reserve         price<\/p>\n
     whereas the allotment in Mohan Entertainment was done in
\n     2003 i.e. after four years of putting the same on tender
\n     and this time at 25% above the reserve price meaning
\n     thereby that between these four years demand in that area
\n     i.e. Vashi area which is a developed Node of Navi Mumbai
\n     has definitely increased.                  According to the petitioners,
\n     in their case, the allotments were done in Airoli and
\n     Kharghar in the year 2004 and that the said areas were<\/p>\n
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\n                                               33<\/span>
\n     similar     to    Vashi      in    the    year       1998-99        and      hence       the<\/p>\n
     justification both in the case of Popcorn Entertainment
\n     and Platinum Entertainment was that if no tenders have<\/p>\n
     been received in the developed node Vashi, no fruitful
\n     purpose     would      have     been     served       in     going       through         the
\n     tender route before making the allotment in favour of the<\/p>\n
     petitioners.\n<\/p>\n
     42.         Learned senior counsel for the petitioners urged
\n     that the CIDCO in the joint affidavit has mentioned that<\/p>\n
     the allotment in favour of the petitioners has been done
\n     on    concessional
\n     petitioners,
\n                            ig     rate       whereas,          according
\n                           the allotments have been done at the rate
\n                                                                                     to       the<\/p>\n
     prescribed by Land Pricing and Land Disposal Policy as<\/p>\n
     was   done       in    Mohan      Entertainment            and      hence,        in     the
\n     submission        of     the       petitioners,             reference            to      the
\n     concessional rates is clearly motivated and made only to<\/p>\n
     harm the case of the petitioners.\n<\/p>\n
     43.         It is also the case of the petitioner that even
\n     if    the    land       is     required        for      public         utility,          the
\n     development       authority        has    no     right        to    resile        from       a<\/p>\n
     concluded contract in order to provide for the same as
\n     has been held by the Hon ble Supreme Court in the case of
\n     Corporation of the City of Bangalore Vs. Bangalore Stock<\/p>\n
     Exchange reported in 2003(10) SCC 212.                             In that case the
\n     land in lease deed was sought to be converted into park
\n     and the development authority wanted to cancel the lease
\n     on that basis.           The Supreme Court clearly held that if
\n     the   lease      deed    does      not    permit        the      said      ground        for
\n     cancellation, the development authority has no right to
\n     cancel the said allotment.\n<\/p>\n
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\n                                             34<\/span><\/p>\n
     44.          In the instant case it was also pointed out                                 by<\/p>\n
     the     petitioners that under the agreement entered into
\n     between the parties and CIDCO,                     no right to cancel the<\/p>\n
     allotment        was     available     to    the      CIDCO       on     the      ground
\n     mentioned in the cancellation order.                            The malafide of
\n     CIDCO       in     the    case   of    the    petitioners              was      further<\/p>\n
     established when in the case of Platinum Square Trust on
\n     21st March 2006 itself CIDCO informed the petitioner under
\n     the Right to Information Act that the allotment in favour
\n     of the petitioner has been cancelled whereas the decision<\/p>\n
     of the board to cancel the same was taken on 3rd April
\n     2006                 <\/span>
\n             (the relevant pages of the information supplied to
\n     the petitioners are at pages 201 of the writ petition)
\n     whereas from a perusal of the cancellation order at page<\/p>\n
     226 of the writ petition paper book                         as such, according
\n     to    the    petitioners,        it   is     clear      that      the      board       had
\n     decided to cancel the same only on 3rd April, 2006.\n<\/p>\n
     45.          In the submission of the petitioners, in case of<\/p>\n
     Platinum         Square      Trust    the     allotment            letter         itself
\n     provided that the second installment could be paid on a
\n     later       date    on    payment     of    interest.             The      petitioner<\/p>\n
     availed the said offer vide petitioners                          letter dated 3rd
\n     May, 2005 and in terms of the said offer the payment had
\n     to be made by the end of December 2005. The petitioner<\/p>\n
     accordingly tendered the payment on 29th December, 2005
\n     (available in the writ petition at pages 147-149) and
\n     CIDCO refused to accept the same and when the same was
\n     not accepted by CIDCO, the petitioner by letter of the
\n     same    date       clearly    wrote    to    CIDCO       contending            that      no
\n     interest thereafter was payable by the petitioner on the
\n     said payment.\n<\/p>\n
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\n                                           35<\/span><\/p>\n
     46.          In conclusion, learned senior counsel appearing
\n     for the petitioners in all these petitions prayed for<\/p>\n
     setting      aside   and    quashing      the    order       of     cancellation
\n     passed by the CIDCO and prayed for reliefs in terms of
\n     prayer made in the petition.\n<\/p>\n
     SUBMISSIONS OF CIDCO :\n<\/p>\n
     47.          Mr.Hegde, learned counsel appearing for the CIDCO<\/p>\n
     in reply submitted that the petitioners                       contention that
\n     the   show
\n                   cause       notice   mentions      only
\n     invite tender as the basis for issuance of the said show
\n                                                                 the     omission          to<\/p>\n
     cause notice is contrary to record.                     In his submission,<\/p>\n
     the   show      cause notices          were issued on the grounds
\n     mentioned in para 12 and 13 thereof, specimen of which
\n     was   referred       to    at   page-65     of      the      W.P.No.9468\/2005<\/p>\n
     reproduced hereinbelow:\n<\/p>\n
                  12.      The then Additional Chief Secretary
\n                  has observed in his findings with reference
\n                  to the land so allotted to you that this
\n                  allotment is made in an Arbitrary manner<\/p>\n
                  without calling tenders which is peruse
\n                  illegal   &    void.   Further,   the   then
\n                  Additional Chief Secretary reported that
\n                  the Corporation suffered financial loss of
\n                  Rs.938.00 lacs and recommended that the<\/p>\n
                  financial loss caused to Corporation needs
\n                  to   be   recovered   by   cancellation   of
\n                  allotments made in an arbitrary and illegal
\n                  manner or alternatively, if cancellation of
\n                  allotment is not possible due to various
\n                  reasons, the Government should direct CIDCO
\n                  to recover difference of price as per the
\n                  prevailing market rate to make good the
\n                  loss.\n<\/p><\/blockquote>\n
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\n                                            36<\/span><\/p>\n
                13.      The State Government has by its
\n                letter No.CID-3304\/PR\/189\/UD-10 dated 15th<\/p>\n
                April, 2005 copy annexed hereto informed
\n                the   Corporation   of   the   findings and
\n                recommendations of the then Additional<\/p>\n
                Chief    Secretary     and    directed  the
\n                Corporation    to     proceed     with  the
\n                implementation of such recommendations.\n<\/p><\/blockquote>\n
     48.        According         to    Mr.Hegde,       Dr.D.K.Shankaran                 had
\n     observed    in    the      findings    that     the     allotments           to     the<\/p>\n
     Petitioners were made in an arbitrary manner which were
\n     per se illegal and void.              Further it was mentioned that
\n     the   Corporation
\n     1,031.13    lakh.\n<\/p>\n
                        ig   had
\n                                The
\n                                      suffered
\n                                       Respondent
\n                                                 a   financial
\n                                                     submits
\n                                                                        loss
\n                                                                     that      in
\n                                                                                  of     Rs.\n<\/p>\n
                                                                                     their<\/p>\n
     reply dated 31st January, 2006, it has been mentioned that
\n     as per Shankaran Report it was necessary to allot the
\n     plots by inviting tenders and testing the market.                              Had it
\n     been so done, these plots would have fetched at least 5<\/p>\n
     times greater value than the actual value received.                                   It<\/p>\n
     was also mentioned therein that Shri Nilesh Gala, who is
\n     the proprietor of M\/s. Platinum Entertainment, has used
\n     the same modus operandi for obtaining allotment of plots<\/p>\n
     for country club at Kharghar and another multiplex plot
\n     in Kharghar and that this is a case of favoritism, CIDCO
\n     was found to have suffered a loss of Rs.10 crore in this
\n     case.\n<\/p>\n
     49.        It is further submitted that in the Shankaran
\n     Report referred to in the show cause notice three grounds
\n     were stated, viz. favoritism, non-issuance of tender and
\n     loss caused to the Corporation.                 It is, thus,             submitted
\n     that the show cause notice was issued on all the three
\n     grounds.         It   is    further     urged      that          the     order        of<\/p>\n
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\n                                         37<\/span>
\n     cancellation of the allotment specifically states that<\/p>\n
     the Board of Directors of the Corporation found itself in
\n     substantial concurrence with the findings recorded by the<\/p>\n
     Dr.D.K.Shankaran.        Thus, the order of cancellation of the
\n     allotment is on all the three grounds mentioned above.\n<\/p>\n
     50.       It is sought to be urged by Mr.Hegde that the
\n     application    was     made   by   the    petitioners          to    the     Chief
\n     Minister and the same was considered by the Board of
\n     CIDCO.     The agenda note and the resolution reveal that<\/p>\n
     there was no discussion about individual merit of the<\/p>\n
     be    justified<\/p>\n
     allottee and only the need for a multiplex was sought to
\n                       in    the   discussion.          However,          individual
\n     merit of the allottee was not discussed which, according<\/p>\n
     to Mr.Hegde, is a pointer to               show that the allotments
\n     were made in arbitrary manner.             That there was no reason
\n     given for dispensing with the tender process and choosing<\/p>\n
     the petitioners for all the three plots of land.\n<\/p>\n
     51.       Mr.Hegde urged that Chapter                  V     of New Bombay
\n     Land Disposal Rules, 1975 provides for allotment of land
\n     for    religious,      education,        charitable        etc.       purposes.\n<\/p>\n
     Though the allotment of plots of lands for construction
\n     of multiplex are treated as allotment for public utility
\n     purposes yet, in substance, qua allottees it is allotment<\/p>\n
     for commercial purposes.\n<\/p>\n
     52.       In   the     submission of Mr.Hegde, the allotments
\n     which are made for the purposes of social, educational,
\n     charitable etc. do not entail any profit to the allottee,
\n     however, multiplex is for commercial exploitation which
\n     ensures profit to the allottees.                     In his submission,
\n     the manner of disposal of lands enumerated in the said<\/p>\n
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\n                                               38<\/span>
\n     policy by and large suggest that most of the allotments<\/p>\n
     have to be made by inviting tenders or bids. It is, thus,
\n     submitted that the allotment for plots at item 12A to 12H<\/p>\n
     referred to by the petitioners was                       on request at fixed
\n     rate     since        they    were   not      meant      for      any      commercial
\n     exploitation.\n<\/p>\n
     53.        Mr.Hegde          urged   that        allotment         for      plot       for
\n     multiplex falls under Item 12 (i) of the policy document
\n     and it is to be allotted on request at fixed rate\/by<\/p>\n
     competitive bid.             CIDCO has, in the past, allotted a plot<\/p>\n
     having    failed<\/p>\n
     for multiplex to Mohan Entertainment on application after
\n                             to     receive     any    response        to     the      tender
\n     floated on 2 occasions.                  This implies that CIDCO                       had<\/p>\n
     resorted         to      inviting        tenders         before          considering
\n     individual application.              Reliance is placed on affidavit
\n     of Shri D.L.N.Murty filed on behalf of CIDCO dated 6th<\/p>\n
     March, 2009 to point out that in the past 4 plots were
\n     allotted for construction of Cinema Theater by inviting<\/p>\n
     tenders.          It is further urged that the plot situated at
\n     Belapur    in     sector 1 A             was initially for Cinema                      cum
\n     shopping complex.                 However, Mahtma Gandhi Mission was<\/p>\n
     allotted adjoining plot for construction of hospital and
\n     they   took      objection with the concerned authorities                                as
\n     such, the allottee Pratibha Builders were not able to<\/p>\n
     obtain     necessary           licence     for     running          Cinema             and
\n     therefore       user     was    changed          from   Cinema        cum     Shopping
\n     Complex to commercial use with shops on the ground floor
\n     and offices at upper floor.                   It is, thus, submitted that
\n     the allotments made in favour of the petitioners were
\n     illegal and there was no compelling reason for deviating
\n     from such practice.              Reliance is placed on the judgment
\n     in the case of Haji T.M.Hasam,                     (1988) I SCC               page 166<\/p>\n
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\n                                           39<\/span>
\n     to urge that nothing should be done by the state which<\/p>\n
     created an impression of favoritism and that, ordinarily,
\n     these factors would be absent if the plots are sold by<\/p>\n
     public    auction      or by tenders.            It was also urged                    by
\n     Mr.Hegde       that    there   may     be    situations            necessitating
\n     departures from the rule,               but then deviation must be<\/p>\n
     justified by compulsion and not by compromise.                            According
\n     to Mr.Hegde, in the instant cases no reasons have been
\n     given    for     dispensing     with      the     practice          of     inviting
\n     tenders, particularly, which it is seen that 3 plots were<\/p>\n
     allotted to one individual.             He urged that it is duty of<\/p>\n
     the court to exercise their power in case any illegality
\n     is noticed in the allotment.              Reliance is placed on                     the
\n     judgment of the Supreme of Court Kasturilal Laxmi Reddy s<\/p>\n
     case reported in (1980) 4 SCC               page 1.\n<\/p>\n
     54.        Mr.Hegde while replying to the charge of certain<\/p>\n
     allotment      made    by the CIDCO without inviting tenders,
\n     submitted       that     the    allotments           made        are        to      the<\/p>\n
     institutions for construction of schools \/ colleges and
\n     in some cases for religious, social welfare and cultural
\n     and sports activities.               In his submission, allotments<\/p>\n
     made to M\/s Mohan Entertainment Pvt. Ltd, and D.Y.Patil
\n     Sports Academy are not comparable as explained in the
\n     affidavit filed on behalf of CIDCO.\n<\/p>\n
     55.        It is submitted that the plots were mostly sold
\n     by auction or by inviting bids.                  Reliance was placed on
\n     the Resolution No.8714 dated 30th April, 2003.                                By the
\n     said     Resolution      it    was     resolved         that       large         size,
\n     residential      and    commercial      plots       were      to     be    sold       by
\n     auction.       According to Mr.Hegde, the present plots are
\n     also allotted for commercial purpose as the profit factor<\/p>\n
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\n                                              40<\/span>
\n     is the prime motive for seeking allotment of plot for<\/p>\n
     multiplex. The Corporation has filed additional Affidavit
\n     of Mr. Murty dated 6.3.2009 in which Exhibit A                          refers to<\/p>\n
     the plots which have been sold for commercial use and
\n     residential use during the period from 2004 onwards and
\n     which are in the vicinity of the petition plots.                             In the<\/p>\n
     said    Affidavit          reasons      for   selling         two      plots         by
\n     application viz. Plot No.11\/2\/27 and plot No.20\/1\/ have
\n     been explained.            One of the plots was allotted to Well
\n     Wishers      which    was    also    subject    matter        of     enquiry         by<\/p>\n
     Dr.Shankaran.         The petitioners plots are also mentioned
\n     in the said list.\n<\/p>\n
     56.          Mr.Hegde urged that the           allotments enquired into<\/p>\n
     by Dr.Shankarran            were during the tenure of Mr.V.M.Lal
\n     who was Managing Director of CIDCO and the details of the
\n     cases which were dealt with by the CIDCO on the basis of<\/p>\n
     the said report are also enumerated.                     In the submission
\n     of Mr.Hegde, the charge of the petitioners that they were<\/p>\n
     singled out for treatment is falsified by the fact that
\n     about 14 allotments were cancelled by CIDCO.                              Mr.Hegde
\n     also   relied       upon    the   affidavit     filed        along       with      the<\/p>\n
     minutes of the meeting in which the plots were allotted
\n     to    show    that   in     the   meeting     held     on     3rd    June,       2004
\n     allotments were made to M\/s.Platinum Square for setting<\/p>\n
     up country club and in the said meeting allotments were
\n     also made to M\/s.Popcorn. The persons who were present in
\n     the meeting are shown. It was sought to be pointed out
\n     that    in    the    meeting      one    Mr.Mhatre        had       opposed        the
\n     allotment which objection was brush aside saying it is a
\n     political objection.\n<\/p>\n
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\n                                                  41<\/span><\/p>\n
     57.          Mr.Hegde sought to canvass that the multiplex<\/p>\n
     policy      which    came        into       existence       in     the      year      2002,
\n     certain tax benefits were granted to the Multiplexes as<\/p>\n
     such while making allotment this benefit ought to have
\n     been     taken      into        account.         While       fixing         land      price
\n     considering huge            demand      of multiplex due to concessions<\/p>\n
     granted by the Government.                    It is further submitted that
\n     even assuming that some other allotments were made by
\n     CIDCO, which may not meet with judicial approval cannot
\n     and     could    not       be     a   ground      for       not      cancelling           the<\/p>\n
     allotment        made      to     the       Petitioners.              It     is,      thus,<\/p>\n
     submitted that if the allotment made to the Petitioners
\n     are arbitrary and has caused loss to the CIDCO then same
\n     cannot be saved merely because some other allotments may<\/p>\n
     have been made by CIDCO which are not proper.                                 In support
\n     of this submission, reliance is placed on the Judgment in
\n     the case of Coromandel Fertilisers Ltd.                                v.       Union of<\/p>\n
     India, AIR<\/a> 1984 SC 1772 (para-12).\n<\/p>\n
     58.          Mr.Hegde while referring to the letter written by
\n     the Managing Director of CIDCO                    Mr.Sinha, in response to
\n     the Audit objection, sought to submit that the CIDCO                                      has<\/p>\n
     filed an Affidavit               and have annexed thereto the official
\n     order of the Comptroller of Auditor General, wherein it
\n     has    been     clearly     mentioned          that     the      reasons        given       by<\/p>\n
     CIDCO       are not acceptable and that there is loss caused
\n     to the Corporation by virtue of said allotment made to
\n     the Petitioners.                 It is also sought to be pointed out
\n     that Dr.Shankaran has considered the allotment made by
\n     CIDCO       during the relevant period and has worked out
\n     weighted average of the price fetched for allotments made
\n     in    the    vicinity       and       has    fixed     the       average        which       is
\n     Rs.18,490\/- p.s.m. in respect of the plot at Airoli and<\/p>\n
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\n                                             42<\/span>
\n     Rs.14,475\/- for the plots at Kharghar.                               It is, thus<\/p>\n
     submitted that if a plot with FSI 1.5 fetches a price in
\n     the range of Rs.14,000\/- p.s.m. then at least a plot with<\/p>\n
     one FSI     will fetch upto Rs.8,000\/- to 10,000\/-.                                 The
\n     allotment made to the Petitioner at reduced price of Rs.
\n     2,500\/- and Rs.3,100\/- are on the lower side and has<\/p>\n
     resulted in loss to the CIDCO.                  In the case of Platinum
\n     Square the comparison is made with the offer made by
\n     CIDCO      to BARC, i.e. offer rate Rs.2,800\/-p.s.m.                                  is
\n     taken as the basis for comparison.                      Even assuming that<\/p>\n
     the price of Rs.2,800\/- p.s.m. amount was not acceptable<\/p>\n
     to BARC, yet there is no reason given as to why the rates
\n     were reduced in the case of Platinum                      Square, which has
\n     lead to a loss of nearly 11 crore.\n<\/p>\n
     59.        Mr.Hegde sought to criticize the action of the
\n     Board of Directors of CIDCO saying that in the very first<\/p>\n
     meeting    Board      cleared       the      subject     proposals           without
\n     considering the individual merits.                  In the meeting hardly<\/p>\n
     any    official      members were present when the allotments
\n     were    made    to    the     Petitioners.             Mr.Hegde        sought         to
\n     distinguish judgments sought cited at the bar on behalf<\/p>\n
     of the petitioners.             He submits that reliance on the
\n     judgment       of    Sunil     P.     Bantia     (supra)        is      misplaced.
\n     According to him,            Dr.Shankaran had recommended that the<\/p>\n
     subject    plot      should      be     cancelled       unless         it     is      an
\n     irreversible          position        like     constructions           have        been
\n     undertaken and in that event loss                    was       directed to be
\n     recovered.           The     Apex     Court    noted      that       there         were
\n     constructions on the plot.                    In the circumstances, the
\n     cancellation order was held to be not sustainable.\n<\/p>\n
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\n                                          43<\/span><\/p>\n
     60.         Mr.Hegde also sought to justify the action of the
\n     CIDCO on the basis of Section 154 and 118 of the M.R.T.P.\n<\/p>\n
     Act contending that the purpose of constituting CIDCO is
\n     to develop a town by making allotment and therefore the
\n     purpose of the Act,          inter alia,     is to develop the area<\/p>\n
     by allotment of plots by CIDCO.              In case the allotments
\n     are allowed to be made in arbitrary manner and, if such
\n     allotments are sustained, then it amounts deviation from
\n     the purpose of the Act and hence directions can be issued<\/p>\n
     by the State Government under Section 154                     for efficient<\/p>\n
     implementation of the Act and same are binding on CIDCO
\n     and hence cancellation can be justified on this count.\n<\/p>\n
     61.         Mr.Hegde urged that section 23 of the Contract
\n     Act    also    envisages     cancellation        on    account        of        the
\n     allotment      \/    agreement,   if   it    is        opposed       to     public<\/p>\n
     policy.       It is urged that allotment of aforesaid plots
\n     was made in an arbitrary, illegal manner and this                           Court<\/p>\n
     can    sustain      the   cancellation     being      opposed       to     public
\n     policy.       According to him, the Supreme Court has ruled
\n     that   it     is   bounden   duty     of    the       court    to     act     when<\/p>\n
     illegality         is brought to the notice of the Court.                       The
\n     allotment made without inviting                  tenders leads to the
\n     presumption of nepotism, bias etc. and it can only be<\/p>\n
     justified by citing compelling reasons.                    In the present
\n     case no reasons were mentioned, individual merits were
\n     not considered and allotments were                 made surreptitiously
\n     to one person which smacks of arbitrariness.                      Hence it is
\n     prayed that the allotments be held                     opposed to public
\n     policy.\n<\/p>\n
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\n                                           44<\/span><\/p>\n
     62.        Mr.Hegde urged that the petitioners are asking<\/p>\n
     for writ for quashing the allotment order passed                                    by
\n     statutory authority which is not maintainable as Writ of<\/p>\n
     certiorari cannot be issued to quash an order passed by a
\n     statutory body.       Only a Writ of mandamus can be issued.
\n     However, even if the Mandamus is to be issued it may not<\/p>\n
     be issued in the instant case as the result of allowing
\n     the Petition will amount to review an allotment which is
\n     bad and illegal.          Reliance is placed on judgment of the
\n     Supreme    Court    in     the    case     Municipal       Corporation            for<\/p>\n
     Greater Bombay       v.    Advance Builders,           AIR<\/a> 1972 SC 793 to<\/p>\n
     support the legal proposition that the writ of mandamus
\n     is not a writ of right but as a rule is matter for
\n     discretion of the court.              It is, thus, submitted that<\/p>\n
     even assuming that the action of CIDCO is irregular for
\n     not following the procedural rules, yet the action was
\n     taken to correct the illegality and hence the Writ of<\/p>\n
     Mandamus should not be issued.\n<\/p>\n
     63.        Mr.Hegde while dealing with the charge of not
\n     giving copy of the            Shankaran Report submits that the
\n     issue    has    become infructuous and insignificant as                           the<\/p>\n
     petitioners have produced details of the report and have
\n     argued    the    matter     on    that     basis.        No     prejudice           is
\n     suffered by the petitioners due to non-supply of the said<\/p>\n
     report.    He also urged that it is possible for the CIDCO
\n     even at this stage               to withdraw the notice and issue
\n     fresh notice after giving a copy of the Shankaran Report,
\n     however, it shall be a futile exercise as the petitioners
\n     have already argued the petition by referring                               to the
\n     report    and this        Court has to consider as to whether any
\n     purpose    shall    be     served     by    directing         the      CIDCO        to
\n     undertake such an exercise.                It is also urged that even<\/p>\n
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\n                                             45<\/span>
\n     after referring to the said report the petitioners could<\/p>\n
     not justify     the allotment in their favour,                     hence it is
\n     submitted that cancellation orders need be sustained.\n<\/p>\n
     64.        It is submitted that in the case of M\/s.Platinum
\n     Square the matter was not carried to the Supreme Court<\/p>\n
     and hence this Court can consider whether Writ will be
\n     maintainable or otherwise.              According to the submissions
\n     made, the petitioner is, basically, praying for specific
\n     performance of the Agreement by asking for a lease deed<\/p>\n
     to be executed which does not lie within the domain of
\n     Writ jurisdiction.ig           In this case, petitioner was not
\n     even registered as charitable trust when they applied for
\n     a plot and yet their application was considered under<\/p>\n
     Chapter V of Land Disposal Regulation of CIDCO, which
\n     requires    that   only       public    charitable        trust       should        be
\n     allotted     the      plots     for     sports       and       other         allied<\/p>\n
     activities.\n<\/p>\n
     65.        Mr.Hegde     canvassed        that    while        remanding           the
\n     matter back to this Court, the Hon’ble Supreme Court has
\n     only formed a prima facie view of the matter and has<\/p>\n
     categorically mentioned that the matter is remanded for
\n     consideration on merits and the same are also mentioned
\n     in para 20 of the Judgment of Supreme Court in Sunil<\/p>\n
     Banthia s     case.    It is, thus, submitted that this                        Court
\n     can   consider     the        matter     on     merits        without         being
\n     constrained by any direction of the Supreme Court.\n<\/p>\n
     66.        In nutshell, it is submitted that the CIDCO has
\n     cancelled the allotments due to the arbitrary manner in
\n     which the plots were allotted and the loss caused to
\n     CIDCO.     The basis for computing the loss was the report<\/p>\n
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\n                                         46<\/span>
\n     of Dr. Shankaran, which has referred several allotments<\/p>\n
     in the vicinity and the offer made to BARC.                               It is,
\n     thus,     submitted that this Court cannot, in the writ<\/p>\n
     jurisdiction, decide the price prevailing in the area at
\n     the time of allotment and hence the Writ be dismissed on
\n     account of the disputed question of facts.                     It is, thus,<\/p>\n
     prayed that the petition be rejected.\n<\/p>\n
     67.       The    learned       counsel    appearing        for      the     State
\n     adopted   the    submissions made by Mr.Hegde, hence,                         they<\/p>\n
     need no reproduction.\n<\/p>\n
     REJOINDER TO THE REPLY OF CIDCO AND
\n     THE STATE OF MAHARASHTRA :\n<\/p>\n
     68.       Mr.Singh, Senior Counsel for the petitioners in
\n     reply urged that a specific request was made to supply
\n     Shankaran report in the reply to the Show cause notice<\/p>\n
     submitted by the petitioner. In fact the petitioner had<\/p>\n
     specifically mentioned in the reply that the same was an
\n     interim reply and that the final reply could be given
\n     only after the entire Shankaran report was given to the<\/p>\n
     petitioner along with the methodology used by Shankaran
\n     to allege losses. That it is also admitted fact that the
\n     cancellation order was passed without supplying the copy
\n     of the Shankaran report to the petitioner.\n<\/p>\n
     69.       It is urged that in all the three writ petitions
\n     a specific ground had been taken by the petitioners that
\n     the cancellation order is vitiated being in violation of
\n     principles      of   natural    justice    for     having        been      passed
\n     without giving a copy of the Shankaran report along with
\n     all Annexures to the petitioners.\n<\/p>\n
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\n                                         47<\/span><\/p>\n
     70.         It is also canvassed that the Shankaran report<\/p>\n
     having been prepared behind the back of the petitioners,
\n     i.e. without any notice to them and a copy of the same
\n     having not been supplied to them, the same could not be<\/p>\n
     used    for   any    purpose     against   the     petitioners.                The
\n     submission thus made is, legally if Shankaran report is
\n     to     be   ignored,   while      considering      the        case      of     the
\n     petitioners then the allegation of loss caused to CIDCO<\/p>\n
     automatically       disappears    and   there     is     no    question          of<\/p>\n
     alleging that CIDCO has suffered any loss in making the
\n     allotment in favour of the petitioners.\n<\/p>\n
     71.         It is submitted that in the initial reply filed
\n     to the writ petition, CIDCO had taken a stand that in
\n     view of the Multiplex Policy, 2000 incentives were given<\/p>\n
     for setting up of multiplexes because of which the demand
\n     for multiplex had arisen. In response to the same it was<\/p>\n
     submitted that if the policy of 2000 was the reason for a
\n     huge demand, surely CIDCO was not justified in making the
\n     allotment in favour of Mohan Entertainment in 2003 on the<\/p>\n
     ground that the plot had been put to tender twice in the
\n     year 1998 and 1999, i.e. prior to the issuance of the
\n     policy. It was also pointed out that the policy did not<\/p>\n
     evoke any response in Navi Mumbai as no party came during
\n     that time for allotment of land. It was also pointed out
\n     to the Hon ble Court that both Mohan Entertainment and
\n     the petitioner applied for allotment of land for setting
\n     up of multiplexes after the policy had already expired on
\n     16.8.2002.\n<\/p>\n
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\n                                               48<\/span><\/p>\n
     72.        It was further submitted that in the statement of<\/p>\n
     objects and reasons for issuance of the Multiplex policy
\n     ordinance, Dr. D.K. Shankaran himself being the author of<\/p>\n
     the    same,    had    noticed      the    slump       in    the       entertainment
\n     industry and the fact that incentives were necessary to
\n     encourage       parties     to     set    up    multiplexes            being     highly<\/p>\n
     capital intensive. Dr. Shankaran, while preparing his ex-
\n     parte    report       has   completely          lost       sight       of   the     same
\n     statement       of     reasons      by     erroneously                comparing        the
\n     allotment      of    multiplexes having 1 FSI with commercial<\/p>\n
     allotments having 1.5 FSI.\n<\/p>\n
     73.<\/p>\n
                It was sought to be canvassed in reply that in
\n     the case of Gurudev Industrial Premises Society, CIDCO<\/p>\n
     while regularizing the said allotment, wherein Shankaran
\n     had reported 63.55 crore loss, CIDCO justified the same
\n     by    noticing       that   the    initial       allotment            in    favour      of<\/p>\n
     Gurudev Industrial Premises Society was with 0.5 FSI as
\n     against the comparison by Shankaran with 1.5 FSI. CIDCO<\/p>\n
     also     while        regularizing         the        said        allotment         took
\n     cognizance of a valuation report got prepared by Gurudev
\n     Industrial       Premises         Society        itself          to     justify        the<\/p>\n
     allotment at the rate at which it had been done.                                   It is
\n     thus     surprising         that     the        same        allottee         had       got
\n     enhancement of F.S.I. from 0.5 to 1.5 to 3.0.\n<\/p>\n
     74.        It    was    also      urged    that       in     a    Public     Interest
\n     Litigation       challenging        the    allotment             in   favour      of    K.
\n     Raheja, wherein also Shankaran had reported 49.75 crore
\n     loss,    CIDCO       justified      the        said    commercial           allotment
\n     without issuance of tender as being within the right of
\n     CIDCO under the NBDLR, 1975 and under the other powers
\n     vested    with       CIDCO.        Accordingly         to        petitioners,          the<\/p>\n
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\n                                               49<\/span>
\n     rightful stand taken by CIDCO on affidavit in case of K.\n<\/p>\n
     Raheja is contradictory to stand taken in Petitioner s
\n     case to mislead the court & harm Petitioners case.\n<\/p>\n
     75.         It was also submitted that four cases of cinema
\n     hall    allotments      made      by     CIDCO    through         the      tendering<\/p>\n
     process relate to the years 1976, 1981, 1988 & 2000. Upto
\n     the year 1988 there was no concept of multiplex in this
\n     country and the allotments were for cinema halls as a
\n     commercial allotment.             The photographs of all the sites<\/p>\n
     were placed before the court along with the affidavit
\n     filed on 18.3.2009. ig            It was also pointed out that in
\n     Belapur, no cinema hall was constructed and the entire
\n     building is a commercial complex with FSI 1.5. In Panvel,<\/p>\n
     Shubham      Cinema         Cum    Commercial         Complex         is      also       a
\n     Commercial Complex with 450 seater cinema with FSI 1.5
\n     In Kopar Khairane, the tender papers inviting tenders for<\/p>\n
     the same were already in the writ petition paper book at
\n     page 46 of the rejoinder in writ petition no. 9468 of<\/p>\n
     2005, wherein it is clearly mentioned that the tenders
\n     are    being       called    for       allotment       of      multiplex           with
\n     concerned complex wherein the tenderer had the to develop<\/p>\n
     30%    of    the    area    commercially         and      wherein          the     only
\n     eligibility was the earnest money to be submitted along
\n     with the tender.            From the tender papers it was clear<\/p>\n
     that the tenderer s status in the business of multiplex
\n     was not even a requirement for eligibility. Since 2000
\n     the Cinema Cum Commercial Complex is yet not ready for
\n     its    functioning.        All    this    lead    to     acute       shortage          of
\n     cinema      theaters\/      multiplexes\/       entertainment             centres        in
\n     the areas of Navi Mumbai.                 It is also an indicator of
\n     less profitability of the cinema\/multiplex\/entertainment
\n     centre business.\n<\/p>\n
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\n                                               50<\/span><\/p>\n
     76.                      It was also sought to be canvassed that<\/p>\n
     in spite of the status of the tenderer not being relevant
\n     for making allotment of land for multiplex, in the case
\n     of the petitioner, CIDCO had asked for the petitioner s<\/p>\n
     bank statement to prove his financial capability and the
\n     petitioner       had     also    submitted         a    project        report        of     a
\n     competent    party        having       experience        in     the      business         of
\n     setting     up     multiplex\/cinema                hall.           The      same        was<\/p>\n
     considered by CIDCO before making the allotment in favour<\/p>\n
     was   thoroughly<\/p>\n
     of the petitioner. Also project report for Country Club
\n                              scrutinized          by    planning         department           of
\n     CIDCO & allotment area was curtailed to 50,000 sq.mtrs<\/p>\n
     from 80,000 sq.mtrs. Remarks of all concern departments
\n     in all three allotments have been placed on record.\n<\/p>\n
     77.        The allotment at Koper Khairane, with right to<\/p>\n
     commercial exploitation was pressed into service while
\n     giving    rejoinder        to    contend       that     in     the     case      of     the
\n     petitioner in Platinum Entertainment the petitioner was
\n     allotted          land          for       multiplex-cum-auditorium-cum-\n<\/p>\n
     entertainment           centre     with       no       right      for       commercial
\n     exploitation       and in the case of Popcorn Entertainment
\n     petitioner        had     been        given    the       right        to     construct<\/p>\n
     multiplex along with entertainment centre.\n<\/p>\n
     78.        It was also urged that in the allotments made by
\n     CIDCO on request there was no concept of market price
\n     because allotments have to be made at the reserved price
\n     or as fraction\/multiple of the same.                          The petitioner has
\n     downloaded from the website of CIDCO a note on reserve
\n     price     which    clearly        brings       out      the      methodology            for<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                            51<\/span>
\n     calculating the same.            Accordingly if allotment is made<\/p>\n
     at the reserve price in terms of the policy, there is no
\n     question of any loss caused to CIDCO, especially when the<\/p>\n
     allotment is made out at a higher price than the reserve
\n     price.\n<\/p>\n
     79.        It was also sought to be pointed out that the
\n     photographs available from pages 7-20 in the additional
\n     affidavit filed on 18.3.2009 that the allotment in favour
\n     of the petitioner at Airoli and Kharghar are away from<\/p>\n
     habitation       and     any     construction         activity,            whereas<\/p>\n
     are   in    highly<\/p>\n
     allotment in the case of Mohan Entertainment and others
\n                              developed      areas,       having         a     lot       of
\n     construction         activity    around.       Thus,       also         CIDCO     was<\/p>\n
     justified       in    making    the   allotment       in     favour        of     the
\n     petitioner       at    the   reserve    price,      keeping         the      larger
\n     interest of the development of area in mind.\n<\/p>\n
     80.        It was also canvassed that Platinum Square Trust<\/p>\n
     initially did not want the country club in the name of
\n     the Trust and it was only at the instance of CIDCO, that
\n     Platinum Square Trust agreed to form the Trust in order<\/p>\n
     to meet the objection of making the allotment as per the
\n     policy.     In this regard it is further submitted that the
\n     policy     is   famed    by     the   Board    of     Directors          and      the<\/p>\n
     allotment is also made by the same board of directions
\n     which has the power to change the policy and hence if the
\n     board of directors made a conditional allotment, no fault
\n     could be found with the same.                 In terms of the Board
\n     Resolution however, possession of the plot was not to be
\n     handed over to the petitioner, till the registration of
\n     the trust.       In the case of allotment of land for petrol
\n     pump, the policy required that the same could be made<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                           52<\/span>
\n     only in favour of oil companies.               CIDCO board has relaxed<\/p>\n
     the policy by regularizing the allotment in favour of
\n     individual contrary to the policy in case of (1) Vivek B.\n<\/p>\n
     Shinde (2) Raj Enterprises.               In any case, this ground is
\n     not available to CIDCO, as the same was neither in the
\n     show cause notice nor in the cancellation order.\n<\/p>\n
     81.        Lastly, it is submitted that the entire argument
\n     of CIDCO regarding loss etc. is not available to them as
\n     they      cannot          travel      beyond         the         show           cause<\/p>\n
     notice\/cancellation          order\/observations            of      the      Hon ble<\/p>\n
     Supreme Court in para 49 of the judgment in the case of
\n     Popcorn Entertainment reported in 29007 (9) SCC 593.\n<\/p>\n
     82.        It    is urged by Mr.Singh that in the case                               of
\n     Platinum       Entertainment       and    Popcorn      Entertainment             this
\n     Court should grant interest on the entire deposit made by<\/p>\n
     the petitioners being full value of the price of the
\n     plots     as     the      petitioners       were       unable          to       start<\/p>\n
     construction due to illegal and malafide actions of the
\n     respondents and in the case of Platinum Square Trust this
\n     court    should      grant interest for the first installment<\/p>\n
     deposited by the petitioner from the date of deposit till
\n     the     date    of    judgment      and    further       that       the       second
\n     installment       shall    become    payable      without         any     interest<\/p>\n
     within four weeks from the date of judgment and the time
\n     for making the construction on all the 3 plots be granted
\n     from the date of judgment as if the original allotment
\n     was made on the said date.\n<\/p>\n
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\n                                        53<\/span><\/p>\n
     Binding Nature of Remand Order :\n<\/p>\n
     83.       It is fairly stated that power of jurisdiction
\n     of the Court lower in hierarchy after remand, depends on
\n     specifications of the remand order.              Whether the order of<\/p>\n
     remand lays down any limits of enquiry to be made by the
\n     Court lower in hierarchy that Court has no jurisdiction
\n     to    entertain    any   question      which    falls       outside         those<\/p>\n
     limits.      In     other    words,     where       the      Court        passes
\n     restricted order of remand it is not open to any of the<\/p>\n
     parties or any Court to enlarge the scope of the remand
\n     order, that too, by a side window.                  If such course is<\/p>\n
     permitted, it would be a destructive of all judicial
\n     discipline and will strike at the root of the efficacy
\n     and binding nature of an order of a superior Court on the<\/p>\n
     parties to a dispute and the necessity of a sub-ordinate
\n     Court to faithfully implement an order of the superior<\/p>\n
     Court.\n<\/p>\n
     84.       Having    said    so,   it   is   necessary          to    find      the<\/p>\n
     contours of scope of judicial review               of this Court after
\n     remand.    It can only be determined on the basis of the
\n     directions of the Apex Court contained in para-41 of the
\n     judgment, which reads as under:\n<\/p>\n
                       It is also pertinent to mention
\n               that CIDCO in the show-cause notice has
\n               taken a ground of non-issuance of tender as
\n               the only basis for cancelling the allotment
\n               and CIDCO in the final order has also
\n               confined itself to the non-issuance of
\n               tender as the ground for cancellation but
\n               in the reply to the writ petition, CIDCO is
\n               seeking to add further grounds to justify<\/p>\n
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\n                                          54<\/span>
\n                the order of cancellation, which is clearly
\n                not permissible in terms of the law laid<\/p>\n
                down by this Court in several of its
\n                decisions.\n<\/p><\/blockquote>\n
     The aforesaid observation           of the Apex Court contained in
\n     the   remand      order     binds     us     and      prevents           us     from<\/p>\n
     considering any other ground other than the ground for
\n     cancellation       taken     in     the    show       cause        notice         and
\n     reiterated in the final order.\n<\/p>\n
     Grounds beyond the scope of Show Cause notices:\n<\/p>\n
     85.        On<\/p>\n
                      the   above     backdrop,    we     are     constrained            to<\/p>\n
     observe    that    the     respondents       tried      to     justify         their
\n     action of cancellation of allotment of plots and order
\n     thereof on the grounds which were neither raised in the
\n     show-cause      notices    nor    made    foundation         of    their       final<\/p>\n
     orders.    Thus, the additional grounds falling beyond the<\/p>\n
     scope of show cause notices sought to be pressed into
\n     service     to     sustain        their     action         are        summarized
\n     hereinbelow:-\n<\/p>\n
           1.          Mr.Nilesh        Gala,      the       Proprietor             of
\n           M\/s.Platinum Entertainment has used some modus-
\n           operandi for obtaining allotment of plots meant<\/p>\n
           for country club and another plot for multiplex
\n           in Kharghar.\n<\/p>\n
           2.          An      application        was        made        by        the
\n           petitioners to the Hon ble Chief Minister and the
\n           same was considered favourably by the Board of
\n           CIDCO.\n<\/p>\n
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\n                                           55<\/span><\/p>\n
     3.           The undue haste is shown in allotment of
\n     plots        resulting          in        illegal          and      arbitrary<\/p>\n
     allotment          with    malafide            intention           to      cause
\n     wrongful gain to the individual person.                                 It is a
\n     case    of    favoritism         supported           by    the     report       of<\/p>\n
     Dr.D.K.Shankaran Report.\n<\/p>\n
     4.           The     agenda          note      and     the       resolutions
\n     demonstrate         no    discussion           about       the    individual<\/p>\n
     merit        of     the      allottees            except          need         for
\n     multiplexes
\n     course<\/p>\n
                  of
\n                         sought
\n                         discussion
\n                                     to     be      justified
\n                                               without
\n                                                                      during
\n                                                               indicating
\n                                                                                    the
\n                                                                                    any
\n     reason       for    choosing         group       of       petitioners          for<\/p>\n
     allotment of plots.\n<\/p>\n
     5.           Absence of official members in the Board<\/p>\n
     Meeting wherein the decisions of                                allotment of
\n     plots to the petitioner were taken.\n<\/p>\n
     6.           The     allotment            of    plot        of     land        are
\n     factually for commercial purposes in the garb of<\/p>\n
     construction of multiplexes and country club with
\n     a view to inure profit to the allottees.\n<\/p>\n
     7.           The multiplex policy whereby certain tax
\n     benefits were granted with effect from                              Year 2002
\n     were ignored while making the allotment of plots
\n     to   the     petitioner         overlooking               the    demand        for
\n     multiplexes         due    to    concessions              granted       by     the
\n     Government.\n<\/p>\n
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\n                                 56<\/span><\/p>\n
     8.       No reasons are to be found to justify<\/p>\n
     allotment of three plots in favour of one group
\n     of persons.\n<\/p>\n
     9.       Refusal    on    the   part    of     Comptroller           of
\n     Auditor General to accept the reasons given by<\/p>\n
     CIDCO justifying absence of law suffered by CIDCO
\n     by virtue of     the subject allotments of plots to
\n     the petitioners.\n<\/p>\n
     10.      Dr.D.K.Sankaran s report is the basis for<\/p>\n
     calculation of loss suffered by CIDCO.\n<\/p>\n
     11.      Justification of the powers of the State<\/p>\n
     Government directing cancellation of allotment of
\n     plots on the basis of Sections 118 and 154 of the
\n     M.R.T.P.Act.\n<\/p>\n
     12.      Surreptitious      arbitrary         allotment           made<\/p>\n
     without inviting tenders leads to the presumption
\n     of nepotism and bias etc.<\/p>\n
     13.      The petitioner M\/s.Platinum Entertainment
\n     were   not   registered   as    a   charitable          trust       yet
\n     their application for allotment was considered by<\/p>\n
     CIDCO favourably.\n<\/p>\n
     14.      Failure on the part of the petitioner to
\n     produce any valuation report to justify at which
\n     rate the allotment was made by the CIDCO.\n<\/p>\n
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\n                                        57<\/span><\/p>\n
     86.       The aforesaid grounds, in our considered opinion,<\/p>\n
     travel beyond the scope of the show cause notices issued
\n     in these cases and that none of the aforesaid grounds was<\/p>\n
     made basis of the order of cancellation of allotment of
\n     plots which were allotted to the petitioners.\n<\/p>\n
     Grounds available for Judicial Review :\n<\/p>\n
     87.       Having said so, what remains for consideration<\/p>\n
     are the grounds on which the show causes notices were
\n     built    and    the   foundation       on     which         the     action         of<\/p>\n
     cancellation of plots is based.             They are as under:\n<\/p>\n
                A.         Allotment    of       plots      is     arbitrary          and
\n                contrary to the established Rules, Regulations
\n                and    Conventions     causing        substantial            loss       to
\n                CIDCO since no tenders were invited, hence per<\/p>\n
                se illegal and void.\n<\/p><\/blockquote>\n
                B.         Allotment of plots is ab initio void on
\n                the thrust of section 23 of the Contract Act,<\/p>\n
                1872.\n<\/p><\/blockquote>\n
     88.       The aforesaid very two grounds were also pressed
\n     into service during the course of hearing by the CIDCO to<\/p>\n
     sustain the order of cancellation of plots. Similarly,
\n     very    same    two   grounds   were        also      canvassed           by     the
\n     petitioners before the Hon ble Supreme Court in appeal in
\n     support of their action.\n<\/p>\n
     89.       On    being asked, the petitioners have produced
\n     copy of the S.L.P.\/ civil appeal on record of this Court<\/p>\n
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\n                                     58<\/span>
\n     vide their affidavit dated 4th August, 2009.                  The perusal<\/p>\n
     of S.L.P.\/ civil appeal, unequivocally, demonstrates that
\n     the aforesaid two grounds      were raised in appeal memo in<\/p>\n
     paras- 29 to 31 and 40 to 43.            They were specifically
\n     canvassed    by   the   petitioners     and      countered           by     the
\n     respondents before the Apex Court in appeal and on the<\/p>\n
     top of it, the findings were also invited thereon which
\n     is clear from     paras- 32 and 39 of the             judgment of the
\n     Supreme   Court   reproduced   herein    below       at    the      cost      of
\n     repetition for immediate reference<\/p>\n
                  32.   igThus, from a conjoint reading of the
\n                 Regulation and the Land Pricing and Land
\n                 Disposal Policy of CIDCO, it is clear that the
\n                 allotment of land could be done by considering<\/p>\n
                 individual application i.e. without inviting
\n                 tenders. From the Land Pricing and Land
\n                 Disposal Policy it is also clear that disposal
\n                 of land under different category are to be
\n                 considered   differently.   In  the   case   of<\/p>\n
                 allotment of land for auditorium\/multiplex,
\n                 theater complex to be developed in the private<\/p>\n
                 sector, it is prescribed that the land is to be
\n                 allotted at reserved price and the method of
\n                 disposal is on request at fixed rate failing
\n                 which by competitive bidding thus, in the
\n                 instant case there is no infirmity in the<\/p>\n
                 allotment because the same has been made on
\n                 request at fixed rate at the reserved price.
\n                 Such allotment is clearly permitted under
\n                 Regulation and prescribed as the manner of
\n                 allotment under the Land Pricing and Land<\/p>\n
                 Disposal Policy of CIDCO. Even CIDCO in their
\n                 affidavit filed in the case of Sanjay Damodar
\n                 Surve vs. State of Maharashtra,<\/a> being PIL No.
\n                 140\/2004 as well as in the case of K.Raheja,
\n                 (PIL No.45879\/2003, 7637\/2004) have stated on
\n                 oath this very stand that they have the right
\n                 to make allotment by considering individual
\n                 applications in terms of the power vested on
\n                 them under Regulation 4 of the New Bombay
\n                 Disposal of Lands Regulations, 1975 and it is
\n                 not understood why CIDCO is seeking to take a<\/p>\n
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\n                                          59<\/span>
\n                   different stand in this matter by singling out
\n                   the appellant.\n<\/p>\n
                   39.      The impugned order is also liable to be
\n                   quashed    as  the    same   is   wholly    without<\/p>\n
                   jurisdiction. Once a concluded contract has
\n                   been entered into between the parties, the
\n                   parties cannot be permitted to resile from the
\n                   same contrary to the express terms of the<\/p>\n
                   concluded contract. It has been held in the
\n                   case of          Corporation of the City of
\n                   Bangalore’s case (supra) to the effect that
\n                   CIDCO has no such right to revoke the concluded
\n                   agreement and hence any action taken by CIDCO<\/p>\n
                   contrary to the express terms of the agreement
\n                   is wholly without jurisdiction. CIDCO cannot
\n                   take recourse of
\n                       ig               Section 23 of the Contract
\n                   Act alleging that the agreement is opposed to
\n                   public policy because clearly such right is
\n                   reserved only to the Courts and it is submitted<\/p>\n
                   that    authorities    themselves    cannot    take
\n                   recourse to the said section in order to annul
\n                   a concluded agreement.\n<\/p>\n
     90.      On the above observations, the learned senior<\/p>\n
     counsel for the petitioners has laid great stress in the
\n     submissions to contend that they are in the nature of
\n     obiter dicta binding on this Court.                He submits that the<\/p>\n
     aforesaid two grounds were debated in the Hon ble Supreme
\n     Court   and    the   Court   has    considered       and      expressed         its
\n     opinion, which this Court cannot ignore.\n<\/p>\n
     Binding Effects of Obiter Dictum :\n<\/p>\n
     91.      There       are   numerous      judgments       of     the      Supreme
\n     Court on both sides of watershed              those prescribing that
\n     even the obiter dicta of           the Supreme Court is binding on
\n     other courts and those proscribing the enforcement of
\n     obiter dicta (see Raval and Co.              v.      K.G.Rama Chandran,<\/a><\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                                   60<\/span>
\n     AIR 1974 SC 818, ADM, Jabalpur v. Shivkant Shukla, AIR<\/p>\n
     1976 SC 1207, Sreenivasa General Traders v.                                    State of AP,
\n     AIR 1983 SC 1246, Amar Nath Om Prakash                                       v.       State of<\/p>\n
     Punjab, AIR<\/a> 1985 SC 218, ONGC                         v.        Western Co. of North
\n     America, AIR 1987 SC 674, MCD                         v.      Gurnam Kaur, AIR 1989
\n     SC 38, Sanjay Dutt                    v.        State through CBI,                      Bombay,<\/p>\n
     (1994)    5     SCC       402,     Director        of        Settlements,             AP         v.
\n     M.R.Appa Rao, AIR 2002 SC 1598, Nathi Devi                                         v.       Radha
\n     Devi    Gupta,<\/a>       (2005)       2   SCC       271,       State        of     Haryana           v.
\n     Ranbir, AIR<\/a> 2006 Sc 1796 and Oriental Insurance Co. Ltd.\n<\/p>\n
     v.    Meena Varial, (2007) 5 SCC 428).\n\n\n     92.\n                         \n<\/pre>\n
                Generally, even an obiter dictum is expected to
\n     be    obeyed       and     followed.             Some       times        well      considered<\/p>\n
     obiter dicta of the Supreme Court is taken as precedent,
\n     but every passing expression of a judge cannot be treated
\n     as an authority [see Saiyada Mossarat                                     v.      Hindusthan<\/p>\n
     Steel Ltd., Bhilai Steel Plant,<\/a> (1989) 1 SCC 272].\n<\/p>\n
     93.        Although,             under      the       traditional              doctrine          of
\n     precedent, an obiter dictum has no binding force, it may
\n     nevertheless          be    held      entitled          to        have       great      weight.\n<\/p>\n
     General observations which are in th penumbral regions of
\n     the    ratio       have    great      weight       when           the    point        has    been
\n     argued    and       deliberated            on    by     the        judges         though       not<\/p>\n
     strictly       required       in      the       case.                With       the     gradual
\n     erosion of the distinction between ratio and obiter the
\n     practice has gained ground for treating even the obiter
\n     dicta of the Supreme Court binding on the High Court.\n<\/p>\n
     94.        The Supreme Court while holding that obiter had
\n     only     persuasive         value          observed          in     Srinivasa           General
\n     Traders       v.    State of          A.P., (1983) 4 SCC 354:AIR 1983 SC<\/p>\n
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\n                                          61<\/span>
\n     1246 that every judgment must be read as applicable to<\/p>\n
     the particular facts proved, or assumed to be proved,
\n     since    the   generality     of   the    expressions            which      may      be<\/p>\n
     found there are not intended to be expositions of the
\n     whole law but governed or qualified by the particular
\n     facts of the case in which such expressions are to be<\/p>\n
     found.     In Prethipal Singh Bedi                   v. Union of              India,
\n     (1982) 3 SCC 140:AIR 1982 SC 1413, the Supreme Court held
\n     that    observations    made       on   questions         not      specifically
\n     arising    for   decision,     but      discussed         are      entitled          to<\/p>\n
     respect by succeeding bench of the Supreme Court, though<\/p>\n
     observations are obiter.\n<\/p>\n
     95.       The Calcutta High Court also had similarly ruled<\/p>\n
     that    even   the   obiter    dicta     of    the      Supreme        Court       are
\n     binding (see Aswini Kumar Roy              v.       Kshitish Chandra Sen
\n     Gupta, AIR 1971 Cal 252).                In fact, the Calcutta High<\/p>\n
     Court has even asserted that so long as the Supreme Court
\n     decision holds the filed it will not be open to the High<\/p>\n
     Court to go against it on the footing that a particular
\n     aspect was not considered in the judgment.                          The Gujarat
\n     High Court also held that the obiter dicta of the Supreme<\/p>\n
     Court are in the same category as ratio decidendi for the
\n     purposes of Article 141.            The M.P. High Court has also
\n     taken the view that the obiter dicta of the Supreme Court<\/p>\n
     are binding on all the courts (see Narbada Prasada v.
\n     Awadesh Narain, AIR 1973 MP 179).                  The Kerala High Court
\n     has held in State of Kerala               v.      Parameshwaran Pillai,
\n     1974 Ker LT 617, that judicial propriety demands that
\n     even the obiter dictum of the Supreme Court should be
\n     accepted as binding.\n<\/p>\n
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\n                                                62<\/span><\/p>\n
     96.          Be that at it may, the Andhra Pradesh High in<\/p>\n
     Bhagavati saran             v.    State of U.P., AIR 1961 SC 931 has
\n     moved to the other end of the spectrum by saying that a
\n     decision of the Supreme Court cannot be disregarded on<\/p>\n
     the ground that no ratio decidendi is discernible.                                 Thus,
\n     many of the High Courts                   are inclined to bring obiter
\n     dicta of the Supreme Court within the purview of Article\n<\/p>\n
     141.     The Punjab High Court has also held that the obiter<\/p>\n
     of the Supreme Court is binding if it lays down a point
\n     of law.\n<\/p>\n
                       It is fair summary to say that judicial dicta
\n     overwhelmingly support the binding nature of obiter dicta
\n     in the context of Article 141.                         The Supreme Court in<\/p>\n
     Kausalya Devi Bogra               v.    Land Acquisition Officer, (1984)
\n     2 SCC 324:          AIR 1984 SC 892, has pointed out                          that the
\n     judicial          decorum        and    discipline        require          that        the<\/p>\n
     directions         of    the     Supreme       Court   should        be      taken       as
\n     binding on subordinate courts.                   In case of Narinder Singh<\/p>\n
     v.     Surjit Singh,<\/a> (1984) 2 SCC 402: AIR 1984 SC 1359, the
\n     Supreme Court has               observed that when the decision of the
\n     Supreme Court             in certain respect as was not to                             the<\/p>\n
     liking       of    the    judge    of    the    High    Court       when       his     own
\n     decision was set aside by the Supreme Court and such a
\n     decision becomes the law of the land and it is the duty<\/p>\n
     of everyone including the High Court to obey the order
\n     and not try to avoid it.\n<\/p>\n
     97.          As     already       stated       hereinabove,             so      far      as
\n     categorical and unequivocal observations made by the Apex
\n     Court    revolving          around       the    issues      relating          to      non-
\n     observation of            rule and regulations causing substantial
\n     loss    to    the       CIDCO    since    no    tenders      were       invited        and<\/p>\n
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\n                                               63<\/span>
\n     interpretation         of    section     23   of     the     Contract          Act     are<\/p>\n
     concerned, they operate as obiter binding on us as such
\n     we have to fall in line with the view expressed by the<\/p>\n
     Apex Court.\n<\/p>\n
     On Re-valuation :\n<\/p>\n
     98.          Having    said        so,   at   this      stage,        we     may     also
\n     mention that the necessity of remanding the matters vis-
\n     a-vis first two petitions in hand is concerned,                                        the<\/p>\n
     Supreme Court has explained the same in the case of Sunil
\n     Pannalal Banthia   ig        v.     CIDCO, (2007) 10 SCC 674 on which
\n     heavy reliance was placed by the petitioners.                              When Sunil
\n     Banthia s case was being argued before the Supreme Court,<\/p>\n
     learned      counsel        for    the    CIDCO      appearing           before        the
\n     Supreme Court had made a submission that the matter be
\n     remitted back to the High Court for fresh determination<\/p>\n
     since the case involves identical facts and issues as<\/p>\n
     were     involved       in        Platinum    Entertainment                and      while
\n     rejecting this submission the observations made by the
\n     Apex Court in para- 20 of the judgment suggest that the<\/p>\n
     necessity of revaluation of the subject plots was in the
\n     mind of the Apex Court.                   We, accordingly, desired to
\n     consider the question of revaluation.                         While considering
\n     this aspect of the matter, we noticed that                               no evidence<\/p>\n
     in    this    behalf    was       available    on      record       as     such      both
\n     parties       were     asked        whether    they         desire          to      bring
\n     additional evidence on record.                    Parties to the petition
\n     showed       their reluctance.           Even our suggestion of making
\n     the reference to the arbitrator for revaluation did not
\n     find favour with either of the parties.                              CIDCO went to
\n     the extent      of contending that, this Court cannot in writ
\n     jurisdiction decide price prevailing in the area at the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                           64<\/span>
\n     time of allotment.            Consequently, for want of evidence,<\/p>\n
     we    found    it     difficult       to    undertake              exercise           of
\n     revaluation.\n<\/p>\n
     Relevant Case-law :\n<\/p>\n
     99.       The case of Sunil Banthia (supra), was decided
\n     on merits, the facts of which are similar to the cases in
\n     hand.    The factual matrix in that case reveal that the<\/p>\n
     CIDCO had issued a letter of allotment of a commercial
\n     plot measuring 1453.75 sq. mtrs. on lease in Plot No.1 in<\/p>\n
     Section 9, Panvel, Navi Mumbai for a period of 60 years
\n     for a premium of Rs.2,12,24,750\/- in favour of Mrs. Meera<\/p>\n
     Balkrishna     Dhumale        and    Mrs.       Neeta       Hemant         Patankar
\n     jointly. The original allottees applied for transfer of
\n     the said plot to the appellants-                    Banthias.                     Upon
\n     accepting the transfer charges of Rs.2 lacs, CIDCO issued<\/p>\n
     a    corrigendum    to   the    original        allotment          letter        dated<\/p>\n
     5\/2\/2004 and executed a deed of lease in favour of the
\n     appellants on receipt of full lease premium. CIDCO also
\n     executed a deed of confirmation                       in       favour of            the<\/p>\n
     appellants     and       issued      the development permission and
\n     commencement certificate in terms of section 45 of the
\n     MRTP Act.      On the basis of the above, the appellants
\n     commenced the construction work and proceeded upto first<\/p>\n
     floor    and   also      completed        the      construction             of      the
\n     underground water tank. On 19\/7\/2005, CIDCO issued a show
\n     cause notice to the appellants to show cause why the
\n     agreement to lease should not be terminated as being void
\n     under   section     23   of    the   Contract        Act.      The      appellants
\n     replied to the show cause notice. Despite the same, on
\n     29\/3\/2006,     CIDCO      passed      an    order           terminating             the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                                  65<\/span>
\n     agreement of lease and demanded return of possession of<\/p>\n
     the allotted plot.\n<\/p>\n
     100.               Sunil Banthia filed a writ petition in this
\n     court against CIDCO challenging the show cause notice
\n     dated 19\/7\/2005 and the order dated 29\/3\/2006 terminating<\/p>\n
     the agreement of lease. This court dismissed the writ
\n     petition      on    the       ground        that       alternative           remedy        was
\n     available to the petitioners. A special leave petition
\n     was filed in the Supreme Court challenging the                                    order of<\/p>\n
     this Court.\n<\/p>\n
     101.       Upon<\/p>\n
                          consideration               of    rival      contentions,             the
\n     Supreme Court observed that the legal position is quite<\/p>\n
     obvious that having acted and held out the assurances to
\n     the    appellants,        which          caused       the    appellants          to     alter
\n     their position to their prejudice, it was not open to<\/p>\n
     CIDCO    to    take       a    unilateral             decision        to     cancel        the
\n     allotment     on     the       ground       that        it    had      acted        without<\/p>\n
     jurisdiction        and\/or          in    excess       of    jurisdiction           and      in
\n     violation     of    its       rules       and     regulations.              The     Supreme
\n     Court    further      observed            that    the       argument       advanced          on<\/p>\n
     behalf of CIDCO even as regards its decision to cancel
\n     the     allotment, it being in violation of section 23 of
\n     the     Contract      Act       is       unacceptable           having        regard         to<\/p>\n
     Regulation     4    of        the    said       Regulations         which       empowered
\n     CIDCO to dispose of plots of land even on the basis of
\n     individual applications. The argument that the decision
\n     to cancel the allotment was taken because the allotment
\n     was opposed to public policy was rejected by the Supreme
\n     Court by observing that in fact the stand taken by CIDCO
\n     is opposed to public policy since CIDCO was not entitled
\n     to take unilateral decision to cancel the allotment after<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                       66<\/span>
\n     the appellants had acted on the basis thereof and had<\/p>\n
     expended large sums of money towards the construction
\n     which had progressed to some extent. The Supreme Court<\/p>\n
     observed    that   the    said   Regulations       allowed        CIDCO        to
\n     entertain    individual    applications      for     allotment.              The
\n     Supreme Court rejected the argument that the allotment<\/p>\n
     was contrary to public policy on a fresh consideration
\n     made by the Board of Directors of CIDCO upon considering
\n     the recommendations made by Dr. D.K. Shankaran, the then
\n     Additional     Secretary     (Planning)       of       the       State         of<\/p>\n
     Maharashtra. The Supreme Court observed that Dr.Shankaran<\/p>\n
     had been appointed by the State Government in January,
\n     2005 to conduct a discreet inquiry into the allotments of
\n     certain plots of land made by CIDCO during the tenure of<\/p>\n
     Mr.V.M.Lal, the then Vice Chairman and Managing Director
\n     allegedly in contravention of         the    established                rules,
\n     regulations    and conventions. The Supreme Court observed<\/p>\n
     that Shankaran Report was not sufficient to cancel the
\n     allotment which had been made in accordance with the said<\/p>\n
     Regulations    and   the     Banthia’s      had    made        payment         as
\n     directed by CIDCO which, in fact, was higher than the
\n     price recommended by Shankaran Committee.                      The Supreme<\/p>\n
     Court, in the circumstances, set aside the impugned order
\n     of this court and quashed the show cause notice and order
\n     cancelling the allotment issued by CIDCO.\n<\/p>\n
     102.       Learned counsel for the petitioners also placed
\n     heavy reliance on the Learned Division Bench judgment of
\n     this Court presided over by the Hon ble the Chief Justice
\n     delivered in W.P.No.2275\/1993 (S.K.Agarwal and others                          v.
\n     CIDCO and others)          on 2nd May, 2008; wherein the plots
\n     alloted to the petitioners for constructing 25 bungalows
\n     by CIDCO were cancelled.          By letter dated 19th October,<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:58:08 :::<\/span>
\n                                       67<\/span>
\n     1988 petitioners were informed that the management of<\/p>\n
     CIDCO had cancelled allotment of plots in their favour
\n     and, therefore, the petitioners are no more licensees                       in<\/p>\n
     respect of those plots.      Consequent upon the cancellation
\n     of allotment, the development permission under section 45
\n     of the M.R.T.P. Act was also denied to the petitioners.\n<\/p>\n
     103.    Being aggrieved by the said action of CIDCO, the
\n     petitioners had filed writ petition in this Court.                         The
\n     said petition was finally decided by the learned Division<\/p>\n
     Bench of this Court vide its order dated 25th February<\/p>\n
     1993, whereby and whereunder the order of cancellation of
\n     allotment was set aside and hearing was directed since
\n     the action was found to be in breach of the principles of<\/p>\n
     natural justice.    The    CIDCO served upon the petitioners
\n     fresh show notices dated 3rd May, 1993 calling upon them
\n     to say why the letters of allotment in respect of the<\/p>\n
     said bungalow plots should not declared as void under
\n     section 23 of the Contract Act.            The said show cause<\/p>\n
     notice contained following three grounds:\n<\/p>\n
               (a)        that the allotment of the subject\n\n\n\n\n\n              plots     was    done   without    inviting          public\n              tenders.\n              (b)        that the rate of premium charged by\n\n\n\n\n\n<\/pre>\n
              the respondent at Rs.150\/- per sq.mtr. was
\n              lower than the market rate.\n<\/p>\n
              (c)        the     petitioners        being          in       a\n              transferable       service   such       allotment            of\n              residential plots is incorrect.\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 14:58:08 :::<\/span>\n                                          68<\/span>\n\n\n\n\n                                                                         \n<\/pre>\n
     The petitioners replied to the said show cause notices.
\n     The petitioners         advocate was accorded personal hearing.\n<\/p>\n
     By an order dated 22nd September, 1993,                        CIDCO, inter
\n     alia;    declared the allotment of bungalow plots as void
\n     and of no effect.\n<\/p>\n
     104.      The    aforesaid     action     of   the      CIDCO       was     again
\n     challenged in W.P.No.2275\/1993 by 22 petitioners.                               The
\n     said    petition   was    decided    on   merits        and     the      learned<\/p>\n
     Division Bench of this Court was pleased to quash and set
\n     aside    the
\n                     order    of   the   CIDCO      cancelling
\n     allotted to the petitioners therein relying upon the case
\n                                                                        the      plots<\/p>\n
     of Sunil Banthia (supra) since the facts involved in the<\/p>\n
     subject petition were identical. The Division Bench while
\n     setting aside the action of the CIDCO held as under:\n<\/p>\n
                 30.      …     …      …     The
\n                 allotment orders issued in favour of the<\/p>\n
                 petitioners have been cancelled on the ground
\n                 that they are illegal having regard to section
\n                 23 of the Indian Contract Act. We have already
\n                 noted that this argument has been rejected in
\n                 Banthia’s case (supra) by the Supreme Court on<\/p>\n
                 the ground that Regulation 4 of the said
\n                 Regulations empowers CIDCO to dispose of plots
\n                 of land even on the basis of individual
\n                 applications.       These observations of the
\n                 Supreme Court clearly cover the present case<\/p>\n
                 also.\n<\/p>\n
                 31.     But there is one distinguishing factor
\n                 on which CIDCO has laid stress. In Banthia’ s
\n                  case   (supra) considerable construction was
\n                 made on the allotted plots and, therefore, the
\n                 Supreme Court observed that having acted and
\n                 held out assurances to the appellants, which
\n                 caused the appellants to alter their position
\n                 to their prejudice, it was not open to CIDCO to
\n                 take a unilateral decision to cancel the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:58:09 :::<\/span>
\n                                      69<\/span>
\n               allotment on the ground that it had acted
\n               without jurisdiction. On behalf of CIDCO, it is<\/p>\n
               argued that since the petitioners have not made
\n               any construction on the said lands, it cannot
\n               be said that they have altered their position<\/p>\n
               to their prejudice on account of assurances
\n               held out by CIDCO.\n<\/p>\n
               32.    We are unable to accept this submission.\n<\/p>\n
               Though it is true that the petitioners have not
\n               made any construction on the said lands, it is
\n               their case that they have expended large sums
\n               on preparation of building plans by engaging
\n               architects. Moreover, the entire lease premium<\/p>\n
               is paid by them in the year 1986 and the money
\n               is lying with CIDCO since then. In such a
\n               situation, it is not possible to say that there<\/p>\n
               is no prejudice caused to the petitioners.
\n               Therefore,   in   our  opinion,   judgment   in
\n               Banthia’s case (supra) is squarely applicable<\/p>\n
               to the present case.        The impugned order
\n               cancelling allotment orders will have to be,
\n               therefore, set aside.\n<\/p>\n
     105.     The issues sought to be raised in the present<\/p>\n
     petition are squarely covered by the judgment of the Apex
\n     Court in the case of Sunil Banthia (supra) as well as
\n     that of Division Bench judgment of this court in the case<\/p>\n
     of S.K.Agarwal (supra) as such these petitions for the
\n     reasons stated therein       are liable to be allowed.\n<\/p>\n
     106.     It   is,    no   doubt,     true     that       the     CIDCO        is<\/p>\n
     justified in contending that remand order operates only
\n     in respect of   first two petitioners, namely, M\/s.Popcorn
\n     Entertainment and M\/s.Platinum Entertainment.                    So far as
\n     third   petitioner    i.e.   M\/s.    Platinum      Square        Trust        is
\n     concerned, it is not under the umbrella of remand order.
\n     However, the facts being identical in all these three
\n     cases, the judicial consideration has to be identical.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:58:09 :::<\/span>
\n                                             70<\/span><\/p>\n
     No two different yardsticks as sought to be suggested by<\/p>\n
     learned counsel appearing for the CIDCO can be applied.\n<\/p>\n
     107.       At    this      juncture,      we   cannot      resist        ourselves
\n     from observing that CIDCO has resorted to half-hearted
\n     action for the reasons best known to it.                               CIDCO even<\/p>\n
     failed to supply the             copy of Shankaran Report on the
\n     basis of which they claim to have taken action.                                     The
\n     supply of some extracts of the Shankaran Report, that
\n     too, during the course of hearing before this Court can<\/p>\n
     hardly be said to be in compliance with the principles of
\n     natural justice.\n<\/p>\n
     serious lapse.\n<\/p>\n
                        ig       Even on this count CIDCO has committed<\/p>\n
     108.       At one stage of the hearing, the learned counsel
\n     appearing       for   the    CIDCO   through        his    oral     as       well    as
\n     written    submission        tried   to     suggest       that    it     would       be<\/p>\n
     possible for the CIDCO to withdraw subject show cause
\n     notices and issue fresh show cause notices after giving<\/p>\n
     copy of the Shankaran s Report.                    But on second thought,
\n     the    officials      of     CIDCO   felt      it    would        be     a    futile
\n     exercise.        As a mater of fact, the officials of CIDCO<\/p>\n
     expected    certain        directions       from    this    Court        so    as    to
\n     undertake fresh exercise of issuing proper show cause
\n     notices.    However, we do not think, we would be justified<\/p>\n
     in opining in this count.               It is for the CIDCO to take
\n     informed decision.\n<\/p>\n
     Conclusion :\n<\/p>\n
     109.       Taking overall view of the matter, petitions are
\n     liable to be allowed.           Impugned action of the respondent-\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:09 :::<\/span>
\n                                    71<\/span><\/p>\n
     CIDCO is unsustainable and liable to be quashed and set<\/p>\n
     aside.       In the result, impugned orders of the CIDCO
\n     dated 16th December, 2005 and 28th April, 2006 are quashed<\/p>\n
     and set aside.      All the petitions are allowed.                Rule in
\n     Writ     Petition   Nos.9467\/2005   and    9468\/2005           is      made
\n     absolute in terms of prayer clause (a) and rule in Writ<\/p>\n
     Petition No.3423\/2006 is made absolute in terms of prayer
\n     clauses (a) and (b).      No order as to costs.\n<\/p>\n
       (MRIDULA BHATKAR, J.)           (V.C.DAGA, J.)<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 14:58:09 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Popcorn Entertainment … vs The City Industrial Development on 1 September, 2009 Bench: V.C. Daga, Mridula Bhatkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9467 OF 2005 1. Popcorn Entertainment Corporation, through is proprietor Shri Nilesh Gala, D-1\/S-10, M.G.Complex, Sector-14. Vashi, Navi Mumbai. 2. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-62134","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nPopcorn Entertainment ... vs The City Industrial Development on 1 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/popcorn-entertainment-vs-the-city-industrial-development-on-1-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Popcorn Entertainment ... vs The City Industrial Development on 1 September, 2009 - 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