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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4571 OF 2009

JYPD Scheme Welfare Trust .. Appellant

Versus

The Chief Officer, M.H.A.D. & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 16.12.2004 passed by the High Court of

Bombay in Writ Petition (lodging) No. 2881 of 2004 dismissing the

said Writ Petition preferred by the appellant herein (the original

writ petitioner), the original writ petitioner ­ JVPD Scheme Welfare

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Trust (hereinafter referred to as the ‘Trust’) has preferred the

present appeal.    

2. The facts leading  to the present appeal and the case of the

appellant  herein  (the  original  writ  petitioner) in  nutshell  are  as

under:

2.1 That the appellant (herein original writ petitioner) claiming to

be a Public Charitable Trust registered under the Bombay Public

Trust Act applied for the plot in question bearing No. C.T.S No. 27

(part) and admeasuring 5415 square meters situated at Juhu Vile

Parle Development Area in Mumbai and reserved for playground.

It was the case on behalf of the appellant­ Trust that the objects of

the Trust include development of cultural,  social and sports

activities and in order to carry on its welfare activities, the Trust

applied to the State Government for allotment of the plot in

question for a playground.  In exercise of powers under Regulation

16 of the Maharashtra Housing and Area Development (Disposal of

Land) Regulations,  1982 (hereinafter referred to as the ‘1982

Regulations’), the  High­Powered Cabinet Sub­Committee of the

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State of Maharashtra allotted the plot in question to the appellant­

Trust vide order dated 05.10.1999.  It appears that in the month of

February, 2000 all the allotments of the plots made under

Regulation 16 of 1982 Regulations were stayed.   

2.2 The appellant herein approached the High Court of Bombay

by  way of  Writ Petition  No. 6777 of 2002.   Vide order dated

28.11.2002, the High Court directed the respondents to decide on

the  application  of the  appellant for  allotment  of  plot  within  10

weeks.   In the meantime, before any decision was taken on the

application of the appellant for allotment of plot, as directed by the

High Court,  vide order dated 20.03.2003, Maharashtra Housing

and Area Development Authority (hereinafter referred to as

MHADA) granted licence to one Anchor Foundation Trust

(Respondent No. 4 herein)  for three years for beautification and

development of the plot in issue.   However, thereafter,  the High­

Powered Cabinet Sub­committee on Allotments, vide order dated

12.06.2003 decided in Principle to allot the plot  in issue to the

appellant­  Trust subject to certain conditions. That the said

decision was taken by the State Government pursuant to the order

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passed by the High Court dated 28.11.2002 in W.P No. 6777 of

2002.  That, vide letter on behalf of the State Government, MHADA

was intimated about the said decision of the Cabinet Sub­

committee to allot the plot in issue to the appellant­ Trust subject

to certain terms and conditions.   That,  vide letter dated

16.02.2004, Respondent No. 1­Board (MHADA) informed the

appellant Trust that the plot in issue is allotted to the appellant

under special powers conferred upon the State Government under

Regulation No. 16 of the said 1982 regulations.  It was also stated

that the allotment is subject to compliance of the terms and

conditions set out therein and submitting the documents as

mentioned in the letter dated 18.10.2003 of the State Government.

That vide letter/communication dated 17.03.2004 the appellant­

Trust was required to submit the necessary documents as

demanded by letter dated 16.02.2004 within seven days.   It was

further stated that otherwise it would recommend cancellation of

the allotment.   It is the case on behalf of the appellant that

immediately thereafter  and well  within  the given  time,  by  letter

dated 22.03.2004  the Appellant­ Trust submitted all the required

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documents and obtained acknowledgment thereof from the office of

the respondent No. 1­Board.   However, formal offer of the

allotment was not issued to the appellant­  Trust.   That vide

communication/order dated 24.08.2004 respondent No. 1­Board

cancelled the allotment of the plot in issue on the premise that

even after lapse of six months the appellant­  Trust had failed to

submit the required documents to prove its eligibility and,

therefore, the appellant had committed breach of the terms and

conditions of allotment.  It is the case of appellant that thereafter

the representatives of the appellant­  Trust visited the office of

respondent No. 1­Board along with acknowledgment receipt dated

23.03.2004 and requested for recall of the said letter dated

24.08.2004 as the  required documents were already submitted.

That respondent  No.  1­Board  executed the licence in favour  of

Respondent No. 4 ­ Anchor Foundation Trust on 9/10.09.2004 for

a period of three years for beautification and development of the

plot in issue.   According to the appellant­ original writ petitioner,

the appellant­ Trust continued to request Respondent No. 1­Board

to recall/cancel the cancellation order dated 24.08.2004.

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However, as there was no response from Respondent No. 1­Board,

the appellant herein (original writ petitioner) preferred present Writ

Petition No. 2881 of 2004 in the High Court of Bombay.   That in

the  said  writ  petition  a  counter  affidavit  was  filed  on behalf  of

Respondent No. 1­Board on 10.12.2004.   According to the

appellant,  in the counter affidavit,  Respondent No. 1 Board

admitted that the reasons given in the letter dated 24.08.2004 for

cancelling the allotment, inter alia, on account of non­submission

of the  documents  was  erroneous/inadvertent.  However, in the

counter affidavit,  original respondent  No. 1­Board justified the

cancellation on other grounds, other than mentioned in the letter

of cancellation dated 24.08.2004.   It was stated that none of the

trustees of the appellant­ Trust were residents of Juhu Vile Parle

Development Area and the financial capacity of the Trust was not

clear and that,  therefore, a decision was taken by the Board to

carry  out the  development  of  playground itself through Anchor

Foundation Trust to which the licence was given vide resolution

No. 5879 dated 20.02.2003.  That, considering the grounds set out

in the counter affidavit on behalf of the Respondent No. 1­Board,

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by the impugned judgment and order,  the High Court has

dismissed the  writ petition  upholding the validity of the order

dated 24.08.2004 cancelling the allotment to the petitioner­ Trust.  

2.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court dismissing the writ

petition, the Appellant­  Trust filed the present appeal by way of

Special Leave Petition on 28.03.2005.  While issuing notice in the

SLP on 10.05.2005  this  Court  granted  liberty to the  Appellant­

Trust to file an application to implead Anchor Foundation Trust as

a party and upon filing the same, the said application came to be

allowed and the Anchor Foundation,  in whose favour the licence

was granted, was impleaded as Respondent No. 4 on 29.08.2005.

That vide order dated 10.05.2005 this Court also passed an order

that the arrangement, if any, entered into with Anchor Foundation

will be subject to the result of this petition.   

3. It  appears that thereafter  certain developments have taken

place which are required to be referred to, which are as under:

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That on 10.09.2004, MHADA issued a letter whereby the plot

in issue was allotted/granted to Respondent No. 4 – Anchor

Foundation for use as a playground and to carry out the

development and beautification of the same for the period of three

years upon the terms and conditions  more particularly stated

therein.   That Respondent No. 4 herein ­ Anchor Foundation

complied with all the terms and conditions of the said allotment

plot by depositing an amount of Rs. 5,41,503/­ and also by

executing  an  undertaking.   It appears that thereafter  by letter

dated 05.01.2005 the MHADA granted to Respondent No. 4, the

plot in issue on lease for a period of 15 years on payment of the

premium and on the terms and conditions more particularly stated

therein.   That,  pursuant to the terms of the letter dated

10.01.2005, Respondent No. 4 deposited a premium of Rs.

1,38,61,046/­  with MHADA on 10.01.2005.  That  one Upnagar

Shikshan Mandal challenged the allotment of the plot in issue to

Respondent No. 4, before the Bombay High Court by way of W.P.

No. 964 of 2005.   That during the pendency of W.P. No. 964 of

2005, the MHADA vide its letter dated 16.03.2005 cancelled the

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allotment granted in favour of Respondent No. 4.  That Respondent

No. 4 challenged the said cancellation of the plot in issue before

the Bombay High Court by way of W.P. No. 1489 of 2005.  That, by

order dated 24.06.2005 in W.P No. 1489 of 2005, the High Court

directed MHADA to give hearing to Respondent No. 4 and pass a

reasoned order.  That pursuant to the directions of the High Court,

MHADA  granted an opportunity to  Respondent  No. 4 of being

heard.  After  hearing  Respondent  No.  4,  MHADA set  aside the

order of cancellation dated 16.03.2005,  by its order dated

08.09.2005 and the said order was placed before the High Court.

It appears that,  during the pendency of hearing of the writ

petitions,  one Gulmohar  Area Societies  Welfare  Group,  a  group

formed by the residents of JVPD Scheme sought to intervene by

way of  Chamber Summons and challenged the allotment of the

plot in issue.  By its order  dated  21.12.2006, the  High  Court

permitted the Gulmohar Area Society Welfare Group to be

impleaded as  a  party/respondent to the  said  writ  petitions.   It

appears that thereafter Gulmohar Area Society Welfare Group, on

11.09.2007, filed an independent writ petition bearing writ petition

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No. 1978 of 2007.  That during the arguments in the aforesaid writ

petitions, the High Court directed MHADA to give hearing to all the

three parties to  the  writ  petitions  and to arrive  at  an amicable

solution.   It appears that,  pursuant to the  High  Court’s order

dated 29.10.2007, MHADA held various meetings with all the three

parties to the writ petitions.   That in the said  meetings, an

amicable solution was arrived at between the parties to the writ

petitions.   The settlement was recorded and signed by the

respective parties to the above referred writ petitions, MHADA and

their respective advocates in the form of consent terms.  That the

settlement  dated  11.02.2008  was taken  on record  by the  High

Court and accordingly the aforesaid three writ petitions being W.P.

No. 1489 of 2005, W.P. No. 964 of 2005 and W.P. No. 1978 of 2007

came to be disposed of in terms of the consent terms.   That

Respondent No. 4 agreed to act as per the settlement dated

11.02.2008 and the consent terms. That in view of the order

passed  by the  High Court on  11.02.2008 in the  aforesaid  writ

petitions, MHADA allotted the plot in issue to Respondent No. 4 on

lease for a period of 15 years, which will be renewable for a further

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period of  15 years  and subject to the terms and conditions  as

stated  in  the  policy  of the  MHADA and  in  addition  thereto the

terms and conditions  as  agreed between the parties in  consent

terms.   It appears that,  thereafter,  the lease  has  been further

extended for a period of further 15 years.  That, in between, there

is a further development which has taken place that the policy of

the allotment of the land/plots under Regulation 16 of 1982

Regulations was the subject matter of Writ Petition No. 75 of 2004

before the High Court of Bombay.  Pursuant to the order passed by

the High Court in the said writ petition, the MHADA came out with

fresh directives and guidelines  which  would govern exercise of

power under Regulation 16 and the High Court has accepted the

fresh directives  and guidelines,  which  would  govern  exercise  of

power under Regulations 16.   Therefore,  pursuant to the  order

passed by the  High Court in  Writ  Petition No.  75 of  2004, the

powers under Regulation 16 are required to be exercised subject to

following the fresh directives and guidelines approved by the High

Court.

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4. Shri Raju Ramachandran, learned Senior Advocate, has

appeared on behalf of the appellant (the original writ petitioner);

Shri Nishant R. Katneshwarkar, Ld. Advocate, appeared on behalf

of the State of Maharashtra and Shri Shyam Divan, learned Senior

Advocate, has appeared on behalf of Respondent No. 4 herein.  

4.1 Shri Raju Ramachandran, learned Counsel appearing on

behalf of the appellant has vehemently submitted that the

impugned judgment and order passed by the High Court is

absolutely contrary to the law laid down by this Court in the case

of Mohinder Singh Gill Vs. Chief Election Commissioner 1978 (1)

SCC 405.   

4.2 It is vehemently submitted by Shri Ramachandran, learned

counsel for the appellant (the original  writ petitioner) that the

order dated 24.08.2004 passed by MHADA cancelling the

allotment of the plot in issue to the appellant­ Trust was solely on

the basis that there was a failure on the part of the appellant to

produce the relevant documents proving the eligibility of the

Society.   It is submitted that,  however, the  MHADA explicitly

admitted before the High Court that the letter dated 24.08.2004

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was inadvertently issued and in fact the appellant did produce the

relevant documents proving its eligibility.  It is submitted that,  in

view of the matter, the High Court ought to have quashed and set

aside the order/letter dated 24.08.2004.   It is submitted that

however, erroneously and though not permissible, the High Court

confirmed the order dated 24.08.2004 on altogether other grounds

stated by the MHADA in the counter affidavit filed before the High

Court, which were not the grounds stated in the order/letter dated

24.08.2004.   It  is submitted and, therefore, the High Court has

committed a grave error in dismissing the writ petition and

confirming the order/letter dated 24.08.2004 considering

altogether new grounds/new story put up by  MHADA in the

counter affidavit to justify the cancellation of allotment.

4.3 It is further submitted by the learned Counsel appearing on

behalf of the appellant (original writ petitioner) that in the case of

Mohinder Singh Gill (Supra) it was not open to the authority which

passed the order of cancellation erroneously/inadvertently and

then to justify the order on the other grounds stated in the counter

affidavit  which were not the  basis/grounds to pass  the original

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order.  It is submitted that this Court in the aforesaid decision of

Mohinder Singh Gill  (supra) observed that when a statutory

functionary makes an order based on certain grounds, its validity

must be judged by the reasons so  mentioned and cannot be

supplemented by fresh reasons in the shape of affidavit or

otherwise.  It is submitted by the learned counsel appearing for the

appellant that, in the present case, the High Court has materially

erred in confirming the order/letter dated 24.08.2004 cancelling

the  allotment of the  plot in issue to the  appellant considering

altogether a new story/grounds stated in the counter affidavit and

those were not the basis of the original order.

4.4 It is further submitted by Shri Ramachandran, learned

Counsel,  appearing on behalf  of the appellant (the  original  writ

petitioner) that even no opportunity was afforded to the appellant

to rebut the new story/grounds put forward for the first time in

the counter affidavit filed in reply to the appellant’s writ petition in

the High Court. It is submitted yet the High Court has confirmed

the impugned cancellation of allotment order/letter dated

24.08.2004.  

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4.5 It is further submitted by learned  Counsel appearing for

appellant that even the subsequent lease in favour of Respondent

No.  4 is  absolutely illegal  and by  suppression of  material facts

before the High Court.  It is submitted that, before the High Court,

in  writ  petition  Nos.  9164 of  2005,  1978 of  2007 and 1489 of

2005, neither MHADA nor Respondent No. 4­ Anchor Foundation

disclosed that SLP filed by the appellant with respect to very plot is

pending before the Supreme Court.   It is submitted that the

subsequent lease in favour of Respondent No. 4 was on the basis

of some settlement between the writ petitioners in the aforesaid

three writ  petitions,  which  is  absolutely illegal  and obtained by

supressing the material fact.   It is submitted that even the

appellant (herein the original writ petitioner) was also not a party

to aforesaid three writ petitions and the consent terms arrived at

between the parties to  the aforesaid three writ  petitions on the

basis of which the subsequent lease has been granted in favour of

Respondent No. 4.  It is submitted that therefore subsequent lease

in in favour of Respondent No. 4 is not binding to the appellant

herein.   It is submitted that,  even otherwise as per the order

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passed by this Court dated 10.05.2005,  the arrangement, if any,

entered into with Anchor Foundation shall be the subject to the

results of the present petition.

4.6 It is further submitted by Shri Ramachandran, learned

Counsel appearing on behalf of the appellant (original writ

petitioner) that, as such,  the appellant had complied with all the

terms and conditions of the allotment and is fulfilling all the

eligibility criteria and, in fact,  the allotment order was passed in

favour of the appellant and the same came to be cancelled on the

premise that the appellant did not submit the required documents

to prove its eligibility which,  as such, were already submitted by

the appellant with the appropriate authority within the stipulated

time, it is prayed to allow to present appeal and quash and set

aside the impugned judgment and order passed by the High Court.

5. The appeal is vehemently opposed  by  Shri Shyam Divan,

learned Senior Advocate, appearing on behalf of Respondent No. 4;

Shri Nishant R. Katneshwrkar, learned advocate appearing on

behalf of the State of Maharashtra and learned counsel appearing

on behalf of the MHADA.

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5.1 Shri Shyam Divan, learned Counsel appearing on behalf of

the Respondent No. 4, has submitted that admittedly the appellant

claimed the allotment under Regulation 16 of 1982 Regulation.  It

is submitted that thereafter Regulation 16 was challenged before

the  High  Court  by  way  of  writ  petition  No.  75  of  2004.   It is

submitted that in the meantime and during the pendency of the

Writ Petition No. 75 of 2004, MHADA and the Government came

out with the fresh directives and guidelines which would govern

exercise of powers under  Regulation 16.   It is submitted that

therefore powers under Regulations 16 under which the appellant

claimed the  allotment  are  required to  be  considered as  per the

fresh directives and guidelines which would govern the exercise of

powers of Regulation 16.   It is submitted that,  therefore,  the

appellant (original writ petitioner) cannot claim any right of

allotment under the original Regulation 16.   It is submitted that,

therefore,  there are changed circumstances in view of the

subsequent decision of the High Court in Writ Petition No. 75 of

2004.  

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5.2 It is further submitted by Shri Shyam Divan, learned Counsel

appearing on behalf of the Respondent No. 4 that in fact thereafter

there is a lease in favour of Respondent No. 4 initially for a period

of 15 years and thereafter the same  has been extended for a

further period of 15 years. It is submitted that under the lease in

favour of Respondent No. 4, Respondent No. 4 has deposited Rs.

Rs. 1,38,61,046/­.   It is submitted that not only that thereafter

Respondent No. 4 has fully made improvements in the land and

the plot in question and the same is being used by the school

children of the locality and even by the other people of the locality.

It is submitted that Respondent No. 4 has strictly complied with

the consent terms submitted before the High Court in the

aforesaid three writ petitions and has strictly complied with the

terms and conditions of the lease and  nobody  has raised any

grievance.  It is submitted, in the present case, the lease in favour

of Respondent No. 4 is not under challenge.   It is submitted that

the appellant (the original writ petitioner) was very much aware of

the earlier allotment in favour of Respondent No. 4 and the

subsequent  lease  in Respondent No. 4 from the very beginning,

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still the lease in favour of Respondent No. 4 has not been

challenged.  Therefore, it is prayed to dismiss the present appeal.

6. Heard learned Counsel appearing on behalf of the respective

parties at length.  At the very outset, it is required to be noted that

the appellant herein applied for allotment of plot in issue under

Regulation 16 of 1982 Regulation.  It is required to be noted that

at the time when the appellant (the original writ petitioner) applied

and in fact was allotted the plot in issue in the month of February,

2004 there were different guidelines and the directives  in  force.

However, Regulation 16 itself was under challenge before the High

Court in Writ Petition No. 75 of 2004 on the ground that

Regulation 16 confers uncontrolled, arbitrary as well as sweeping

powers  on  the  Government to  allot the  plots  which are  part  of

housing schemes implemented by MHADA, to outsiders and third

parties.  That,  in between, the State as well as MHADA came out

with the fresh directives and guidelines which would govern

exercise of powers under Regulation 16.  Therefore, the High Court

by judgment and order dated 15.09.2004 did not set aside

Regulation 16, however,  the High Court approved the guidelines.

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Therefore, thereafter the  powers  under  Regulation 16 are to  be

exercised as per the fresh directives and guidelines which came to

be approved by the High Court.   Therefore,  the guidelines under

which the powers were exercised under Regulation 16, at the time

when the appellant applied and claimed the right of allotment is

not in existence.   A fresh directives and guidelines would govern

the  exercise  of  powers  under  Regulation 16,  which came  to  be

approved by the High Court, are to be applied.

7. It is true that when the order of cancellation dated

24.08.2004 was passed,  the same was solely on the ground that

the  appellant­  Trust  did  not  submit the relevant  documents to

prove its eligibility and on  no other ground.   The  High  Court

considered the grounds stated in the counter affidavit and did not

interfere  with the  order  of cancellation  dated  24.08.2004.  The

appellant would be justified in making the grievance that the High

Court was not justified in considering the grounds stated in the

counter affidavit which were not the basis for passing the original

order  of cancellation.  However, at the same time,  subsequent

development and grant of the lease in favour of Respondent No. 4

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initially for a period of 15 years and thereafter for a further period

of 15 years and the lease  in favour of Respondent No. 4  is not

challenged,  we do not propose to interfere  with the impugned

judgment and order passed by the High Court.  It is required to be

noted that there is a lease in favour of Respondent No. 4 since

2004­2005.   That Respondent No. 4 had deposited/paid  Rs.

1,38,61,046/­.   It is also required to be noted that the consent

terms recorded by the High Court in Writ Petition Nos.  9164 of

2005, 1978 of 2007 and 1489 of 2005, on the basis of which the

High Court disposed of the aforesaid three writ petitions in terms

of the consent terms and on the basis of which the lease of plot in

issue in favour of Respondent No.4, the lease in favour of

Respondent No. 4 has not been challenged.   The lease granted to

Respondent No. 4 was pursuant to the order passed by the High

Court in the  aforesaid three  writ  petitions.   It is true that the

appellant­ Trust was not a party to the said writ petitions.

However, still,  either the order passed by the High Court in the

aforesaid three writ petitions and even the lease granted in favour

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of Respondent No. 4 was/is required to be challenged before the

competent Court of Law.   

8. The submission on behalf of the appellant that as per the order passed

by this Court dated 10.05.2005, the arrangement, if any, with Respondent No.

4 would be subject to the result of present writ petition and, therefore, the

appellant is not required to challenge the lease in favour of

Respondent  No.  4,  cannot  be accepted.   In the  present  appeal,

there is no specific challenge to the lease in favour of Respondent

No. 4.  Under the circumstances of the case, we decline to interfere

with the impugned judgment and order passed by the High Court

and we decline to grant any relief to the appellant.   At the same

time,  we observe that  we  have  not expressed anything on the

merits,  on the legality and validity of the lease in favour of

Respondent No. 4.   

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

present appeal deserves to be dismissed and accordingly, the same

is dismissed with the above observations.   However, in the facts

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

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……………………………………J. (L. NAGESWARA RAO)

……………………………………J. (M. R SHAH)

New Delhi; April 9, 2019