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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3488 OF 2018 (ARISING OUT OF SLP(C)NO.26056 OF 2012)

S.V. ASGAONKAR & ORS.                       … APPELLANTS

VERSUS

THE MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY & ORS.         … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This  appeal  has  been  filed  against  judgment  dated

19.06.2012 of the High Court of Bombay by which Writ

Petition No.8224 of 2011 filed by the appellants has been

dismissed.

2. Brief facts of the case giving rise to this appeal

are:

The Mumbai Metropolitan Region Development Authority

has been constituted under the   Mumbai Metropolitan

Region Development Authority Act, 1974. The Authority has

framed Regulations, namely,   Mumbai Metropolitan Region

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Development Authority (Disposal of Land) Regulations,

1977 which were also amended vide Notification dated

29.04.1997. The Authority in accordance with the

Regulations is empowered to dispose of its land.  

3. The appellants were employees of  Mumbai Metropolitan

Region Development Authority (hereinafter referred to as

'Authority'). The Resolution dated 07.06.1997 was passed

by the Authority granting permission to allot the land of

Authority situated at Chitalsar Manpada Village, District

Thane admeasuring about 13,700 sq.mtr. to the proposed

Co­operative Housing Society of the employees of the

Mumbai Metropolitan Region Development Authority for the

purpose of construction of houses on lease hold basis for

a period of 80 years. The Resolution by condition No.3

provided that Housing Society will have to pay an amount

at the rate of Rs.1400/­ per sq. mtr. for a period of 80

years as premium. Letter dated 05.11.1998 was issued to

the proposed Society informing about the Resolution dated

07.06.1997 and the terms and conditions thereof. A Co­

operative Housing Society of the employees of the

Authority was registered on 25.06.1999 under the

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Maharashtra Co­operative Societies Act, 1960. The Society

in reference to the above wrote letters dated 23.07.1999,

19.11.1999 and further dated 09.12.1999 wherein it made

three requests, namely:

(a) The rate of Rs.1400/­ per sq. mtr. is the rate

of developed plots and, therefore, the land falling

under road and compulsory open spaces should be made

available free of cost.

(b) Instead of insisting on payment of the premium

in one or two instalments, the Society may be

permitted to pay the land cost in yearly instalments

spread over 10 to 15 years.

(c) Pending the final decision, advance possession

of the plot of land be given to the Society by

charging a token amount @ 2% of the estimated cost of

the land.

4. On 09.07.1999, the Government of Maharashtra had

issued Government Resolution pertaining to the Govt. land

to be allotted to the Housing Society. The document

contained various terms and conditions under which

Government land can be allotted to the Co­operative

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Housing Society. The letter dated 09.12.1999 of the

Society was not favourably responded by the Authority.

Again letter dated 26.02.2001 was sent by the Society to

the Authority requesting to put up a proposal for

consideration of the Authority in the forthcoming meeting

for allotment of land to Society on similar terms as that

of the allotment of land to the MMRDA Class­IV Employees

Co­operative Housing Society. Reminder dated 27.04.2001

was again sent by the Society.   The Authority vide its

letter dated 03.05.2001 wrote to the Society where the

Authority  requested the Society to go through the terms

and conditions given in the Resolution dated 09.07.1999

and communicate its willingness so that further action

be taken in the matter.   Copy of Government Resolution

dated 09.07.1999 was forwarded to the Society to

communicate its willingness as per terms and conditions

given in Government Resolution dated 09.07.1999.

5. The Authority in its meeting dated 01.09.2003

resolved to allot the land to the Society as per the

terms and conditions dated 09.07.1999. In the Resolution

it was further stated that the allotment will be made at

the rate of Rs.2500/­ per sq.mtr. In the above respect,

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the condition No.(c) contained in the Resolution dated

07.06.1997 was modified. A letter dated 11.12.2003 was

issued by the Authority to the Society relating to grant

of land area 13,700 sq.mtr. as per Resolution dated

01.09.2003. The letter further stated that the list of

eligible members may be approved by submitting proposal

with necessary proofs in that respect and verifying the

eligibility of members, the built up area will be

allotted to the members and thereafter possession of land

will be given by executing lease. The Society vide letter

dated 10.06.2004 submitted final list of eligible members

as requested by the Authority as on 11.12.2003. In

response to the letter of the Society, further, letter

dated 09.12.2005 was issued to the Society informing

allotment of land to the Society admeasuring 10,700

sq.mtr. with total premium to be paid, along with the

letter list of non­eligible members with remarks “not in

the service on the date of LOI” including the names of

the appellants was also furnished.

6. The appellants aggrieved by the aforesaid

communication dated 09.12.2005 filed Writ Petition

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No.8224 of 2011 praying for quashing the communication

dated 09.12.2005 holding the appellants as non­eligible.

Further, to issue mandamus, directing the respondents to

include the names of the present appellants as persons

being eligible to receive tenements/flats. Prayer to

strike down condition No.8 of Annexure­A of the

Government Resolution dated 09.07.1999 was also made. The

High Court vide its judgment dated 19.06.2012 dismissed

the writ petition. The High Court held that the proposal

dated 27.04.2001 submitted by the Society was neither in

continuation of the earlier allotment letter issued by

the Authority in the year 1997 nor has any nexus in

respect thereof. The allotment dated 01.09.2003 was made

on the basis of fresh proposal. It was one of the

conditions of the Government Resolution dated 09.07.1999

that only such employees who were in the employment on

the date of allotment of the land would be eligible to be

the members of the Society. The appellants on that day

being not in employment of  respondent No.1, they  have

not rightly been held eligible. With the aforesaid

observation, the writ petition has been dismissed.

Challenging the said judgment this appeal has been filed.

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7. Shri Huzefa Ahmadi, learned senior counsel appearing

for the appellants submits that the appellants were fully

eligible for allotment of land. He submits that the

allotment of land has to be treated as allotment made on

07.06.1997 on the basis of which Letter of Intent dated

05.11.1998 was issued. He submits that the appellants

were eligible on the date of Resolution dated 07.06.1997

as well as on 05.11.1998 they being in service on the

above relevant dates they could not be held to be not

eligible relying  on the date 11.12.2003 on  which  date

letter was issued on the basis of Resolution 01.09.2003.

He submits that subsequent Resolution dated 01.09.2003

was in continuation and in modification of earlier

Resolution dated 07.06.1997, hence, the eligibility has

to be seen on the date when Resolution dated 07.06.1997

was passed. The appellants being eligible on the original

date when the Resolution was passed, the view taken by

respondent No.1 that they are not eligible for allotment

was erroneous.It is further submitted that the appellants

being members of the Society and eligible for allotment,

they will not lose the eligibility merely on the ground

that a subsequent Resolution dated 01.09.2003 was passed.

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He submits that the view of the High Court that the

allotment was made on the basis of a fresh proposal made

by the Society, is incorrect. The allotment is

consequent to earlier proposal which culminated into the

Resolution dated 07.06.1997.

8. Shri Shivaji M. Jadhav, learned counsel appearing for

the respondent refuting the submissions made by the

appellants contends that a fresh allotment was made on

01.09.2003 on the basis of Government Resolution dated

09.07.1999 which is separate allotment having no relation

to the earlier Resolution dated 07.06.1997. He submits

that the appellants being not in service of the Authority

on the date when Letter of Intent was issued i.e.

11.12.2003, they have rightly been excluded from the list

of eligible members. He submits that the High Court has

taken correct view of the matter.

9. We  have  considered  the  submissions  of the learned

counsel for the parties and perused the records.

10. The High Court has dismissed the writ petition taking

the view that allotment dated 01.09.2003 was passed on

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the fresh proposal submitted by the Society and the

Resolution dated 01.09.2003 being passed on separate and

distinct proposal, eligibility on 07.06.1997 is not

relevant. Whether the above reason given by the High

Court for dismissing the writ petition is correct or not

is the first issue which needs to be answered in this

case.

11. In pursuance of Resolution dated 07.06.1997 Letter of

Intent dated 05.11.1998 was issued in which following

terms were mentioned for allotment of land:

“1. The Association of employees will form the proposed Co­operative Housing Society of the Employees within a period of 60 days from the date of receipt of Authority's letter and to get the said Society registered within a period of 6 months.  

2. Land will be allotted for a period of 80 years on lease hold basis.

3. The employees of the Authority of the Housing Society will have to pay an amount at the rate of Rs.1400/­ per sq.mtr. as per the market rate fixed by the Town Planning Department, Thane for a period of 80 years as a premium.

4. The provision of the Mumbai Metropolitan Region Development Authority (Disposal of Land) Regulations will be applicable to this allotment of land.”

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12. The  letter  dated  05.11.1998  refers  to Disposal  of

Land Regulations. At this juncture, we may  notice the

above Regulations which were amended on 29.04.1997. The

amended Regulation, 1997 has been brought on the record

by the appellants themselves through rejoinder­affidavit.

In the Amendment Regulation Clause (iA) has been added

which is to the following effect:

"(iA) If half of the premium shall not be paid within one month or in case of Government within two months, if permitted by the Metropolitan Commissioner, the Agreement concluded with the Authority shall stand determined and the Earnest Money deposited by Intending Lessee along with its tender or offer shall stand forfeited to the Authority without prejudice to the rights and powers of Authority to recover compensation for loss or damage, if any suffered in consequence of such breach of the Intending Lessee to so pay half of the premium to the Authority. Likewise, if the balance premium shall not be paid within twelve months as provided hereto before, the Agreement concluded with the Authority shall stand determined and the Earnest Money paid by him along with its tender or offer together with 25 per cent of the premium shall be forfeited to the Authority without prejudice to the right and powers of the Authority to recover

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compensation for loss or damage, if any, suffered in consequence of such default of the Intending Lessee.”

13. The  Disposal  of  Land  Regulations  as  amended  being

applicable, it was required for the Society to make

payment of premium within the time prescribed by the

Authority. Admittedly, the Society did not make the

payment of premium and has submitted a request for

permitting to make payment by instalments spread over 10

to 15 years.  It was further prayed that the land falling

under road and compulsory open spaces will be made

available free of cost. The Society requested for

relaxation of various conditions which were not granted

by the Authority at any point of time. The Resolution

dated 07.06.1997 and consequent allotment dated

05.11.1998 did not fructify into allotment of land and

lapsed as per Disposal of Land Regulations as amended in

1997, Regulation (iA). In the meantime the Government of

Maharashtra has issued Resolution dated 09.07.1999

providing various terms and conditions for allotment. In

the present case, we are concerned with one of the

conditions which is condition No.8 of Annexure­A.

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Annexure­A is ”Eligibility for approval to the members of

the Co­operative Housing Societies who intend to obtain

Government land by paying concessional occupancy charges/

lease rent”. Condition No.8 which is a part of Annexure­A

to the Resolution is to the following effect:

"8. It is a pre requisite that the Government Employee   will be in the service on the date on which the indent letter will be issued to the Co­operative Housing Society, and only then such employee will be treated as eligible for membership.”

14. The Society itself has made various applications to

the Authority after Resolution dated 07.06.1997. One of

the applications dated 09.12.1999 is Annexure P­5 where

the allotment on certain modified terms and conditions

was prayed for, which was never granted. Again an

application dated 26.02.2001 was given by the Society

where it has referred to the Resolution made on

07.06.1997 by which proposal for allotment to MMRDA

Employees Co­operative Housing Society was passed. Prayer

was made in the letter dated 26.02.2001 to put up a

proposal for consideration of the Authority for allotment

of land to Society.

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15. Again letter dated 27.04.2001 was submitted by the

Society to the Authority where it was requested to put up

a proposal for consideration of the Authority in its

forthcoming meeting in accordance with Government of

Maharashtra Resolution dated 09.07.1999. It is useful to

quote the prayer made in paragraph 4 of the aforesaid

letter:

"4. You are now requested to put up a proposal for the consideration of the Authority in its forthcoming meeting for the allotment of earmarked MMRDA land at Chitalsar Manpada to the MMRDA Employees Co­operative Housing Society, Chitalsar Manpuda,Thane in accordance with the Government of Maharashtra Resolution No. LCA­1095/P.K.37/95/J­1 (together with its Annexures) dated 9th  July, 1999 as was approved by the Authority for the allotment of land to the MMRDA Class­IV Employees Co­operative Housing Society at Panchpakhadi. We are in a readiness to make the necessary payment for taking the possession of the land of 13,700 sq.mtr. area on the terms prescribed in the above referred Government of Maharashtra Resolution.

Thanking you, Yours faithfully,

Sd/­  (A.V. Ghangurde)

Chairman”

16. In response to letter dated 27.04.2001, the Authority

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wrote a letter dated 03.05.2001 to the Society forwarding

the Resolution dated 09.07.1999 and requesting the

Society to go through the terms and conditions and

communicate Society's willingness so that further action

be taken. The Society vide letter dated 10.05.2001

communicated its willingness to abide by the Resolution

dated 09.07.1999 and thereafter Resolution dated

01.09.2003 was passed for allotment of land. In pursuance

of Resolution dated 01.09.2003, letter dated 11.12.2003

was issued by the Authority to the Society. The Authority

vide letter dated 11.12.2003 informed that lease premium

may be charged at Rs.2500/­ per sq.mtr. instead of

Rs.1400/­ per sq. mtr. as was earlier approved. From the

aforesaid sequence of events, it is clear that the

allotment dated 01.09.2003 was a fresh allotment of land

on a higher premium that is Rs.2500/­ per sqr. mtr.

Earlier allotment dated 07.06.1997 had lapsed due to non­

fulfilment of the conditions as required by the Disposal

of Land Regulations, 1977 as noted above. Thus, the

allotment dated 01.09.2003 was on the basis of the fresh

proposal relying on the Government of Maharashtra

Resolution dated 09.07.1999. We, thus, are of the view

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that the High Court is right in its conclusion that

allotment dated 01.09.2003 was on the basis of fresh

proposal of the Society and same has no nexus with

respect to Resolution dated 07.06.1997.

17. Learned counsel for the appellants relying on

Resolution dated 01.09.2003 submits that the Resolution

dated 01.09.2003 clearly mentions that it modifies

condition No.3 contained in earlier Resolution dated

07.06.1997 which clearly means that Resolution dated

01.09.2003 is in continuation of earlier Resolution,

hence, the eligibility of the members have to be seen on

07.06.1997 or 05.11.1998. He relies on the following

portion of  Resolution dated 01.09.2003:

"RESOLVED THAT, in exercise of power conferred under Sub­Section 2 of Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974 and making modification  in Condition No.”c” contained in its resolution dated 727 passed in the 88   th    meeting held on 7.6.1997  and as proposed in paragraph 6 of the item note, the authority allots the land situated at Chitalhar, Manpada, Thane to the MMRDA employees cooperative housing society on the following terms and conditions.”

18. It is true that Resolution dated 01.09.2003 modifies

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condition No.(c) as was contained in Resolution

07.06.1997. Condition No.(c) was with regard to amount of

premium per sq.mtr. which was Rs.1400/­. The Resolution

dated 01.09.2003 modifies the said amount as Rs.2500/­

per sq. mtr. The modification of above condition has been

specifically mentioned since earlier the Authority has

offered the plot on Rs.1400/­ per sq. mtr. which was

subsequently made as Rs.2500/­ per sq.mtr. As noted above

the Resolution dated 07.06.1997 itself was not honoured

by the Society and it lapsed as per statutory Regulations

noted above.

19. The fresh allotment was made on 01.09.2003 in

pursuance of which Letter of Intent was issued on

11.12.2003, thus, the eligibility has to be seen as per

condition of Annexure­A of the Government Resolution

dated 09.07.1999. On the strength of Resolution dated

01.09.2003 in so far as it modifies the rate of premium

per sq.mtr., it cannot be said that the same allotment

which was made on 07.06.1997 has been continued on

01.09.2003 and the eligibility of members has to be

pegged on the date of Resolution dated 07.06.1997 or

05.11.1998 i.e. issue of Letter of Intent.  We, thus, do

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not find any substance in the above submission of the

learned counsel of the appellants.  

20. The submission of the learned counsel for the

appellants that eligibility with regard to being in

service has to be seen on the date 07.06.1997 or

05.11.1998, thus, cannot be accepted. The Society itself

has given approval vide its communication dated

10.05.2001 to consider the allotment to the Society in

its forthcoming meeting on 17.05.2001 on  the basis of

Government of Maharashtra Resolution dated 09.07.1999. It

is thus clear that the Society itself has requested for a

fresh consideration and fresh Resolution on the basis of

the eligibility laid down by Resolution 09.07.1999. After

after issuance of allotment letter dated 11.12.2003 by

which list of eligible members was asked for, in response

to which Society has sent its communication dated

10.06.2004 stating the following:

"...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary

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time.”

21. Thus, the Society was conscious of the fact that

eligibility of members has to be seen as on 11.12.2003

that is the date on which Letter of Intent was issued in

pursuance of allotment. The Society having accepted the

aforesaid clause of eligibility   and accepted the offer

of allotment as given by the Authority, we fail to see

that how the eligibility as on 11.12.2003 be permitted to

be questioned.

22. There is one more fact which needs to be noted. The

Authority   has  proposed allotment of  13,700 sq.mtr of

land which is apparent from its Resolution dated

01.09.2003 as well as letter dated 11.12.2003. After

scrutinising   the list of eligibility, ultimately, the

allotment was made only for land admeasuring 10,700

sq.mtr. by letter dated 09.12.2005. The Authority had not

taken into consideration the area for non­eligible

members while finalising the list and due to the

aforesaid reasons the area allotted to the Society has

been reduced from 13,700 sq.mtr. To 10,700 sq.mtr..

23. Taking into consideration the aforesaid facts and

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circumstances, we are of the view that no relief can be

granted to the appellants. The High Court did not commit

any error in dismissing the writ petition. We do not find

any infirmity in the judgment of the High Court. The

appeal is dismissed.

...............................J. ( A.K. SIKRI )

...............................J. ( ASHOK BHUSHAN )

NEW DELHI, APRIL 09, 2018.