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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 611 OF 2008

Jawed Urdu Primary School Through its Secretary and Anr. .. Appellants

Versus

Collector of Mumbai & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment  and order  dated  29.09.2005 passed  by the  Division

Bench of the High Court of Judicature at Bombay in Writ Petition

No. 2356 of 2005 by which the High Court has dismissed the

said writ petition preferred by the appellants herein (the original

writ petitioners), the original writ petitioners have preferred the

present appeal.   

2. The facts leading to the present appeal in nutshell are as

under:

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It is the case on behalf of the appellants–original writ petitioners

that the appellant­Trust registered under the provisions of the

Maharashtra Public Trusts Act came into existence by virtue of

trust deed on 28.02.2000.   That respondent No. 4 herein –

Nasheman Welfare and Educational Society came into existence

in the month of December, 1999.   That, in the month of March

2001, the  appellant­Trust  started an Urdu Medium Secondary

School.   That the school is located in the slum area.   That the

school is in rental premises.   

2.1 It was the case on behalf of the original writ petitioners that

due to increasing number of students, the appellant­Trust was

finding it difficult to accommodate all of its students, therefore,

the original writ petitioners made an application on 25.07.2001

to the Collector of Greater Mumbai for a plot of land reserved for

primacy school located at CTS No. 174, Kirol and CTS No. 351

Asalpha,  Ghatkopar (the land in question).  According to the

appellant­Trust, on such an application, the  Collector of the

Greater Mumbai vide its communication dated 12.09.2001

forwarded the request of the appellant­Trust to the City Survey

Officer, Ghatkopar and Tahsilder of Kurla and asked to conduct

the inspection of the site and submit a report, if the said plot can

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be allotted to the appellant­Trust.   That, on 13.12.2001, the

Deputy  Director  of  Education granted recognition on no  grant

basis to the  classes  of  Standard­VIII  of the  Jawed Urdu High

Court run by appellant­Trust from June 2000.   That, on

02.04.2002, the Managing Trustee of the appellant­Trust made

an application to the Collector of Greater Mumbai for allotment of

plot in question for the primary school.  The said application was

submitted in Proforma­A.   That, on 24.09.2002, the Deputy

Education Inspector submitted his detailed report regarding

details of Trust, requirements and financial status of the

appellant­Trust and recommended to allot the land in question to

the appellant­Trust.   That, on 24.09.2002, the Managing Trustee

of the appellant­Trust made an application to the Principal

Secretary, Forest and Revenue Department for allotment of the

plot in question.   That,  on 27.09.2002, the Maharashtra State

Secondary and Higher Secondary Education Board granted

recognition to the appellant­Trust.  It was the case on behalf the

appellant­Trust that thereafter on 21.04.2003, the Managing

Committee of the appellant­Trust again made an application to

the Principal Secretary, Forest and Revenue Department,

Government of Maharashtra, Mumbai and submitted the

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required documents for allotment of the plot in question.   That,

on 28.04.2003, the appellant­Trust wrote a letter to the

Commissioner of the Municipal Corporation of Greater Mumbai

for allotment of the plot for Multi Medium Primary School.  That,

again on 02.05.2003, another application was made by the

appellant­Trust for allotment of the plot in question.   That, on

04.06.2003, the Corporation communicated to the appellant­

Trust that, as per the policy of the Municipal Corporation, the

Municipal school plot to be allotted to private educational

institution is allotted by giving public advertisement in local

newspaper for calling application from the interested educational

institutions.     

2.2 It  was  the  case  on behalf  of the  appellant­Trust that, in

between, the appellant­Trust learnt that respondent No. 4 –

Nasheman Education and Welfare Society located at Vikroli was

being actively considered  for allotment of  the plot  in question,

though they were not involved in any educational activity and the

aim  and objects of respondent  No.  4 also  do  not  provide for

running  a  primary school and, therefore, the appellant­Trust,

through its Advocates gave a notice on 10.11.2003 to the

respondents calling upon them to inform about the actual status

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of the plot in question within seven days and not to allot the plot

of land to  any  society  or institution  without  advertisement in

local  newspaper.   That, in the  month  of  February,  2004, the

appellant­Trust filed  Writ  Petition  No.  645 of  2004  before the

High Court of Bombay for issue of a writ of Certiorari, Writ of

Mandamus and an order of injunction from allotting the plot in

question to respondent No. 4 or any other

society/institution/person not conforming to the prescribed

norms for allotment of the said plot.   

2.3 That, by an order dated 24.06.2004, the Division Bench of

the High Court disposed of the said writ petition by quashing and

setting aside the order of allotment in favour of respondent No. 4

and remanded the matter back to the Minister of Revenue.  The

Division Bench also directed the Minister of Revenue to consider

the claim of the appellant­Trust on one hand and respondent No.

4 on the other, afresh.     

2.4 It is the case on behalf of the appellant­Trust that thereafter

the  appellant­Trust  submitted representation  in  support  of its

case.   That, by an order dated 01.06.2005, the then Chief

Minister and also the Revenue Minister passed an order to allot

the land in question in favour of respondent No. 4 mainly on the

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ground that the appellant­Trust is already running a school, may

be in the rented premises, however, respondent No. 4 proposes to

establish a new primary school and it is the endeavour of the

State to encourage the new institution.

2.5 Feeling aggrieved and dissatisfied with the order passed by

the then  Chief  Minister and  also the  Revenue  Minister  dated

01.06.2005 allotting the land in question in favour of respondent

No. 4, the appellants herein preferred Writ Petition No. 2356 of

2005 before the High Court.   That, by the impugned judgment

and order, the High Court has dismissed the said writ petition

mainly and solely on the ground that, as such, the plot in

question was reserved for the primary school in the development

plan and that the appellant­Trust never applied for establishing

the primary school, whereas respondent No. 4 has made

representation for allotment of the plot for establishing a primary

school.

3. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court dismissing the writ

petition, the original writ petitioners have preferred the present

appeal.

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4. Shri B. B. Sawhney, learned senior counsel has appeared

on behalf  of  the appellants­original writ petitioners.   Shri N.R.

Katneshwarkar, learned advocate has appeared on behalf of the

State of Maharashtra.   Shri Atul Yeshwant Chitale, learned

Senior Advocate has appeared on behalf of respondent No. 3 and

Shri  Shyam Divan, learned  Senior  Advocate  has  appeared  on

behalf of respondent No. 4.   

5. Shri Sawhney, learned senior counsel appearing on behalf

of the appellants­original writ petitioners has vehemently

submitted that the High Court has materially erred in dismissing

the writ petition preferred by the appellants herein solely on the

ground that the appellant­Trust never applied for the allotment of

the land for establishing the primary school.   It is vehemently

submitted by the learned senior counsel appearing on behalf of

the appellants  that,  as such,  the appellants were running the

primary school  and,  in fact,  they wanted to shift  that primary

school to the plot in question and, therefore, they applied for the

allotment  of the  plot in  question for establishing the  primary

school also.     Shri Sawhney, learned senior counsel appearing

for the appellants has taken us through the various

correspondences of the applications/representations made by the

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appellants  in support of  their case that the appellants­original

writ petitioners did apply for the allotment of the land in question

for establishing the primary school.

5.1 It is  vehemently  submitted by the  learned senior  counsel

appearing for the appellants that the High Court has, therefore,

dismissed the writ petition and non­suited the appellants­original

writ  petitioner  on a  wrong premise.    Shri  Sawhney, learned

senior counsel has further submitted that, as such, the object of

the  appellant­Trust is to run the educational institution  both

secondary as well as the primary. It is submitted that, as such,

the appellants are running the educational  institution to cater

the need of the slum area.  It is submitted that as the educational

institution was being run in the rented premises, the appellant­

Trust and the educational institution were facing difficulties and,

therefore, they applied for the allotment of the land in question.

It is vehemently submitted by the learned senior counsel for the

appellants­original writ petitioners that, as such, in fact,

respondent No. 4 never applied for allotment of the land in

question for establishing the primary school.   It is vehemently

submitted that even the object of respondent No. 4 Trust do not

provide for running/establishment of a primary school.    

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5.2 It is vehemently submitted by the learned senior counsel for

the appellants that, in fact, respondent No. 4 never applied for

allotment of the land in question in a prescribed format.   It is

submitted  that  a simple  representation was made to the then

Chief  Minister for allotment of the land and the then Chief

Minister and the Revenue Minister allotted the land in question

in favour of respondent No. 4.  It is submitted that, therefore, the

land  in question ought not to have been/could not have been

allotted in favour of respondent No. 4­Trust who, as such, was

not even running the primary school at the relevant time and/or

even they  did  not  make  an  application for recognition of the

primary school.   It is submitted that, therefore, the allotment of

the land in question in favour of respondent No. 4 was absolutely

arbitrary and illegal, which deserves to be quashed and set aside.

It is submitted that all the aforesaid facts, though were pointed

out to the High Court, the High Court did not consider the same

and has non­suited the appellants­original writ petitioners on the

wrong premise  that the  appellants­original  writ  petitioners  did

not apply for allotment of the land in question for establishing

the primary school.   It is further submitted that even the

grounds/reasons given by the Chief Minister in the order dated

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01.06.2005 are not germane and on the grounds stated in the

order dated 01.06.2005, the land in question could not have been

allotted to respondent No. 4­Trust.

5.3 Making the  above  submissions, it is  prayed to  allow  the

present appeal.

6. Shri  Shyam Divan,  learned Senior Advocate appearing on

behalf of respondent No. 4, has vehemently opposed the present

appeal.    Shri  Katneshwarkar, learned  advocate  appearing  on

behalf of the respondent­State of Maharashtra has also

supported the  order  passed  by the then  Chief  Minister  dated

01.06.2005.

6.1 Shri Shyam Divan, learned Senior Advocate appearing for

respondent No. 4, while opposing the present appeal, has

vehemently submitted that admittedly the land in question was

reserved for the primary school in the development plan.   It is

submitted that even considering the applications/representations

made by  the  appellants­original  writ  petitioners,  which are  on

record, it can be said that the appellants­original writ petitioners

applied for the land in question for mixed use – for establishing

the secondary school as well as the primary school.   It is

submitted by the learned senior counsel appearing for

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respondent No. 4 that, in fact, respondent No. 4’s application was

filed on 11.06.2001 i.e. prior to appellants’ application filed on

25.07.2001.   It is submitted that respondent No. 4’s application

sought allotment of the subject land specifically for the purpose

of setting  up  a  primary school.   It is submitted that, on the

contrary, the appellants’ application related to a high school.   It

is submitted that, therefore, the High Court has rightly dismissed

the writ petition and has rightly refused to grant any relief in

favour of the appellants­original writ petitioners.  

6.2 Shri Shyam Divan, learned Senior Advocate appearing for

respondent No. 4, has further submitted that the subject land

has been validly allotted to respondent No. 4.  It is submitted that

the subject land has been allotted in favour of respondent No. 4

in compliance of  the procedure prescribed  for the allotment of

Government lands in Maharashtra; and after due consideration

to the applications received by the Government authorities,

including the application filed by the appellant­Trust.   It is

submitted that the subject land cannot be allotted to the

appellant­Trust since its application does not relate to the

construction of a primary school.   

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6.3 It is further submitted by Shri Shyam  Divan, learned

Senior Advocate appearing for respondent No. 4, that the land in

question is allotted in favour of respondent No. 4 considering the

provisions of Section 40 of the Maharashtra Land Revenue Code,

1966 and even Rules 5 and 6 of the Maharashtra Land Revenue

(Disposal of Government Lands) Rules, 1971 and on the terms

and conditions stipulated in the circular dated 08.02.1983 and

after following the due procedure, as required.  

6.4 It is submitted by Shri Shyam Divan, learned Senior

Advocate appearing for respondent No. 4 that, pursuant to the

order passed by the then Chief Minister and the Revenue

Minister dated 01.06.2005 granting allotment of the land in

question in favour of respondent No. 4, the name of respondent

No.  4  has  been entered  in the  Revenue records.  Making  the

above submissions, it is prayed to dismiss the present appeal.    

7. Shri Katneshwarkar, learned advocate appearing on behalf

of the respondent­State of Maharashtra, has supported the order

dated 01.06.2005 as well as the impugned order passed by the

High Court.

7.1 It is submitted  by  Shri  Katneshwarkar, learned  advocate

appearing on behalf of the respondent­State of Maharashtra that,

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pursuant to the directions issued by the Division Bench of the

High  Court in  Writ Petition  No.  645 of 2004, the then  Chief

Minister, who was also holding the charge of Revenue, considered

the cases of both – appellants as well as respondent No. 4 – and

thereafter considering the pros and cons of the  matter and

considering the case of both the applicants, in the larger public

interest and also considering the policy of the State Government,

has allotted the land in question in favour of respondent No. 4.  It

is submitted that no  mala fides  are alleged and/or any

submissions are made by the learned senior counsel appearing

on behalf of he appellants on mala fides.   

8. Shri Atul Yeshwant Chitale, learned Senior Advocate

appeared on behalf of respondent No. 3­Brihanmumbai

Municipal Corporation, has stated at the bar that if neither the

appellant­Trust  nor respondent  No.  4  are  allotted the land in

question, respondent No. 3­Brihanmumbai Municipal

Corporation is ready and willing to take the land in question and

establish a primary school to cater the need of the locality.   

9. Heard the learned Counsel appearing on behalf of the

respective parties at length.   We have perused and considered in

detail the material on record, more particularly, the

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applications/representations made by the appellants as well as

the correspondence/representations/applications made by

respondent No. 4.

9.1 It is not in dispute that the land in question is reserved for

the primary school  in the development plan.  It is the case of

behalf of the appellants as well as respondent No. 4 that both of

them applied for the land in question for establishing the primary

school.   It is required to be noted that the applications for

allotment of the land were required to be made in Proforma­A.

Relying upon the representations/applications/communications,

right from 25.07.2001, and the subsequent correspondences on

record, it is the  case  on behalf  of the  appellants­original  writ

petitioners that they made the application for allotment of  the

land in question specifically for establishing the primary school.

On a bare reading of the application dated 25.07.2001 made by

the appellant­Trust, it appears that the said application cannot

be said to  be  made  specifically for  a  primary school.   In the

application dated 25.07.2001, the appellant­Trust requested for

allotment  of the land in  question  by stating that the land  in

question is reserved for the school or for such purposes by the

Government of  Maharashtra and the same is quite convenient

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and suitable to them to have school building and to

accommodate their children/students and also to adjust the

growing crowd of the students in the said school.  Thereafter, for

the first time, in the representation dated 02.04.2002, the

appellant­Trust stated that they are running a high school and a

primary school.   Even considering the representation dated

02.04.2002, it cannot be said that the appellants applied for the

allotment of the land specifically for establishing the  primary

school.  Even in the proforma, the reason for applying the land is

stated to be “for school and play­ground”.   Even in the

subsequent communication dated 24.09.2002, there is no

specific mention that the land is applied specifically for

establishing the primary school.   Merely because the appellant­

Trust might be running even a primary school,  along with the

secondary school, it cannot be presumed that the appellant­Trust

applied for the land in question specifically for the primary

school.   Therefore, considering the aforesaid facts and

circumstances of the case, it cannot be said that the High Court

has committed any error in not granting the relief to the

appellants and/or the High Court has committed any error  in

dismissing the writ petition.

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9.2 At the same time, we cannot lose sight of the fact that even

the grant of land in favour of respondent No. 4 also cannot be

sustained, as the same,  for  the reasons stated hereinabove,  is

found to be illegal and/or arbitrary.   

9.3 Respondent No. 4 is relying upon its first application dated

11.06.2001 in support of its case that they applied for the land in

question for setting up a primary school.   However, considering

the material on record, there does not appear to be any

application submitted by respondent No. 4 dated 11.06.2001 and

that too  in the Proforma­A, but  it is on record that a straight

request was made by respondent No. 4 to the then Chief Minister

(Annexure P­28).     Annexure P­29 dated 11.06.2001 is by one

Mohd.  Aarif  Nasim Khan,  the then Minister of  State for  Food,

Civil Supply and Consumer Protection forwarding the

representation received from respondent No. 4, by which he

recommended to allot the land in question in favour of

respondent No. 4.  Even considering the documents produced at

Annexure  P­28, a representation/request  made  by respondent

No. 4 for allotment of the land in question made to the then Chief

Minister, it is not born out that a request was made for allotment

of land by respondent No. 4 specifically for establishment of a

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primary school.   Even in the recommendation made by the then

Minister of State for Food, Civil Supply and Consumer Protection

dated 11.06.2001, it cannot be said that even the

recommendation was for allotting the land in question in favour

of respondent No. 4 for establishing the primary school.   On the

basis  of the said representation, the State  Government  took a

decision and/or granted sanction to grant the land in question in

favour  of respondent  No.  4.   The subsequent opinions  of the

various authorities, if are perused and considered, they are solely

on the basis that the Government has granted the sanction to

allot the land in favour of respondent No. 4.   It is also required to

be noted at this stage that even at the relevant time respondent

No. 4 did not even apply for the recognition to start a primary

school.   At this stage, noting on the file of the Revenue

Department dated 22.09.2004 deserves to be noted, which reads

as under:

“22­09­2004  The Education Department has not received any proposal from the Nasheman Education Welfare Society about starting a school. Further, even a permission has not been given to the society for a primary school at the place in question.   However, please see the order of the Hon’ble Chief Minister on page 73/TV.   Pursuant thereto there should be no objection for the Finance Department to concur.”

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Therefore, considering the entire material on record and the

circumstances narrated hereinabove, even respondent No. 4

was not eligible and/or entitled to the allotment of the land in

question, as they also never applied for allotment of the land

in  question specifically for establishing the  primary  school

and, that too, in Proforma­A.   A simple representation was

made to the then Chief Minister and also the Revenue

Minister for allotment and the same representation came to

be accepted by the Government.   Therefore, the grant of the

land in favour of respondent No. 4 is also illegal and arbitrary

and the same has been confirmed subsequently by the

concerned Minister by an order dated 01.06.2005 which was

impugned before the High Court.   Even the grounds/reasons

stated in the order dated 01.06.2005 confirming the

allotment in favour respondent No. 4 also cannot be said to

be germane and/or a valid ground/reason to allot the land in

question in favour of respondent No. 4.   As observed

hereinabove, even respondent No. 4 was not entitled to the

allotment of land in question for the reasons stated

hereinabove.   Under the circumstances, the allotment of land

in  question in favour  of respondent  No.  4  also cannot  be

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sustained and the same deserves to be quashed and set aside

by this this Court even in exercise of its powers under Article

142 of the Constitution of India, as this Court has once found

that the allotment in favour of respondent No. 4 is also illegal

and arbitrary, this Court is of the opinion that not interfering

with the order dated  01.06.2005 and/or grant of land in

question in favour of respondent No. 4 would tantamount to

continuing the illegality.    

10. As stated by the learned counsel appearing on behalf of

respondent  No.  3­Brihanmumbai  Municipal  Corporation at

the bar that if neither the appellant­Trust nor respondent No.

4 are allotted the land in question, considering the growing

population and the need of the primary school in the locality,

respondent  No. 3­Brihanmumbai  Municipal  Corporation is

ready and willing to take the land in question and establish a

primary school in the locality.   

11. In view of the above and for the reasons stated above,

we dispose of the present appeal with the following

observations and directions:

(i) The impugned judgment and order dated

29.09.2005 passed by the High Court is hereby

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confirmed.   It  is observed and held that the appellants

herein­original writ petitioners were rightly held to be not

entitled to allotment of the land in question;

(ii) The order dated  01.06.205 allotting the land in

question in favour  of respondent  No.  4 is  also  hereby

quashed and set aside.  Therefore, the allotment granted

in favour of respondent No. 4 is hereby quashed and set

aside;

(iii) Neither the appellants­original writ petitioners nor

respondent No. 4 are entitled to the allotment of the land

in question; and

(iv) The land in question be granted/allotted in favour

of respondent No. 3­Brihanmumbai Municipal

Corporation after complying with other procedural

requirements and on compliance of the other terms and

conditions in accordance with law and the policy, so that

respondent No 3  may establish and run the primary

school on the land in question which will be in the larger

public interest.

12. The present  appeal is  accordingly  disposed of in

terms of the above.   However, in the facts and

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circumstances of the case, there shall be no order as to

costs.

........................................J. [L. NAGESWARA RAO]

........................................J. [M. R. SHAH]

New Delhi, April 9, 2019.