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                            NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5428      OF 2013 (Arising out of SLP(C) No. 3009/2012)

Mahanagar Telephone Nigam Limited …Appellant

versus

State of Maharashtra and others                  ...Respondents

J U D G M E N T

G. S. SINGHVI, J.

1. Leave granted.

2. Feeling  dissatisfied  with  order  dated  30.7.2010  read  with  order  dated  

13.8.2010 passed  by the Division Bench of  the  Bombay High Court  in  Writ  

Petition No.1517/2010 for issue of a mandamus to respondent Nos. 2 to 4 to hand  

over vacant possession of final Plot bearing No.1088, Town Planning Scheme-IV  

(City) (Mahim) situated at Kashinath Dhuruwadi, Standard Mill Lane, Rajabhau  

Desai Marg, New Prabhadevi, Mumbai and for restraining respondent No.5 from  

carrying out further development on that plot or creating third party rights, the  

appellant has sought intervention of this Court.

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3. By Notification dated 24.9.1973 issued under  Section 4(1) of  the Land  

Acquisition  Act,  1894  (for  short,  ‘the  Act’)  the  Government  of  Maharashtra  

proposed  the  acquisition  of  four  plots,  Town  Planning  Scheme  as  described  

hereinabove  for  Posts  and  Telegraph  Offices.  After  considering  the  report  

submitted by the Collector under Section 5A(2), the State Government issued  

declaration dated 7.11.1975 under Section 6(1) of  the Act.  The Special  Land  

Acquisition Officer (respondent No.2) passed award dated 31.3.1982 and fixed  

market value of Plot Nos. 1087 and 1088 as Rs.14,14,282/- and Rs.13,29,897/-,  

respectively. Assistant Engineer (Phone) (L.A., Mumbai Telephones) deposited  

the amount of compensation on 9.8.1982.

4. Since some portions of the acquired land were occupied by slum dwellers,  

respondent No.2 sent letters dated 10.2.1983 and 22.3.1983 to the officers of the  

Bombay Telephones  to  rehabilitate  the  hutment  dwellers  or  pay  rehabilitation  

compensation  and  deposit  the  establishment  and  service  charges.  Between  

9.6.1983  and  3.8.1992  the  officers  of  Bombay  Telephones  and  Posts  and  

Telegraph  Department  exchanged  correspondence  inter  se and  sent  

communications to Bombay Housing and Area Development Board, Department  

of  Housing  and  Special  Assistance,  Government  of  Maharashtra  and  other  

functionaries of the State Government for delivery of possession of the two plots  

but did not get desired response apparently because more and more persons had  

encroached and occupied the acquired land.  After about 6 years, Deputy General  

Manager  (Planning),  Mahanagar  Telephone  Nigam  Ltd.,  sent  letter  dated  

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23.6.1998 to respondent No.2 to either hand over vacant possession of the two  

plots or  refund the amount of  compensation with interest.  That letter reads as  

under:

“MAHANAGAR TELEPHONE NIGAM LIMITED MUMBAI

O/o Dy. General Manager (Planning)  3rd Flr, Telephone House,  

V.S. Marg, Dadar (West),  Mumbai-400 028,

No. PELA-1-166/98-99 Date:  23/6/98

To, Special Land Acquisition Officer,  Old Custom House, 1st floor,  Fort, Mumbai

Sub: Acquisition of Plot No. 1087 and 1088 in TPS-IV of Mahim,  Prabhadevi.

Sir,

Award for the above plot No. 1087 and 1088 declared  on 1.6.1979 and 31.3.1982 respectively.  Accordingly,  this  department paid compensation amount of Rs. 14,14,282/-  on   26.7.79   and Rs. 13,29,897/- on 30.3.82 totaling to Rs.  27.65  lakhs  including  establishment  charges.  Inspite  of  voluminous  correspondences  and  frequent  visuals  and  meetings with you to get the vacant possession of the plots,  the plot is not yet made over to MTNL.   At present plot is  fully  encroached  and  you  are  not  in  a  position  to  give  vacant possession of the said plots.

It  is  once again  requested to  hand over the vacant  possession  within  three  months,  failing  which  you  are  requested  to  refund  the  compensation  paid  by  us  with  interest.

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Sd/- Dy. General Manager (Plg.)  

MTNL, Mumbai”

(underlining is ours)

5. For the next about 8 years the officers of Bombay Telephones, Posts and  

Telegraph  Department  and  the  appellant  are  not  shown  to  have  sent  any  

communication to the functionaries of the State Government including respondent  

No.2 in the matter of delivery of possession of the acquired land.  They woke up  

from slumber in 2006. Between 1.1.2006 and 4.8.2006, about 20 communications  

were sent to respondent No.2 and others to deliver possession of Plot No.1088.  In  

those  communications,  no  mention  was  made  about  Plot  No.  1087  because  

compensation deposited in respect of that plot had been withdrawn.   

6. In the meanwhile, Municipal Corporation of Greater Mumbai sanctioned  

redevelopment of Plot No. 1088 for rehabilitation of slum dwellers numbering  

495,  who  formed  Prabhadevi  Cooperative  Housing  Society  (Proposed).   The  

Society signed Development Agreement dated 16.11.2003 with M/s. Shree Ahuja  

Properties (respondent No.5) for development of Plot Nos. 1087 and 1088.  More  

than  70%  of  the  eligible  slum  dwellers  (352)  gave  consent  affidavits  for  

redevelopment under the Slum Rehabilitation Scheme, which was approved by  

Additional  Municipal  Commissioner  and competent  authority  vide order  dated  

17.9.2004  passed  under  Section  4(1)  of  the  Maharashtra  Slum  Areas  

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(Improvement,  Clearance and Redevelopment)  Act,  1971 (for  short,  ‘the 1971  

Act’).  After  two  months,  Executive  Engineer-III,  SRA  issued  order  dated  

6.11.2004 for execution of the scheme by respondent No.5. On 8.4.2005, SRA  

granted Commencement Certificate to respondent No.5.  After about three years,  

SRA passed order dated 8.8.2008 and directed respondent No.5 to allot built up  

area measuring 1706 square meters to the appellant free of cost.

7. Respondent No.5 completed rehabilitation building Nos. 1 and 2 on Plot  

No.1088 sometime in 2009.  The Executive Engineer, SRA issued Occupation  

Certificates  dated  1.12.2009 and  4.12.2009 and approximately  600 units  were  

handed  over  to  the  slum dwellers  for  permanent  residence.  The  status  of  the  

buildings is revealed from 21 photographs produced by respondent No.5, which  

have been marked as Annexure R-1.

8. After 37 years of initiation of the acquisition proceedings and 28 years of  

the pronouncement of award by respondent No.2, the appellant filed writ petition  

with the prayers about which reference has been made hereinabove.  The Division  

Bench of the High Court disposed of the writ petition vide order dated 30.7.2010.  

Due to some mistake, that order was recalled on 13.8.2010 and was substituted  

with the impugned order, the relevant portions of which are extracted below:

“In this petition under Article 226 of the Constitution of India,  the Mahanagar Telephone Nigam Limited has prayed for a writ  of  mandamus  to  direct  respondent  Nos.2  to  4  to  hand  over  vacant possession of the land admeasuring 5723.10 sq. metres  situated at Mahim bearing FP No.1088 TPS-IV.  

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2. Learned counsel for respondent No.5, in whose favour the  slum  development  authority  has  sanctioned  the  slum  rehabilitation scheme in question,  states that as per the order  dated 8th August, 2008 of the Slum Rehabilitation Authority,  the built up area admeasuring 1706 sq, metres is allotted under  Item No.10 to MTNL. The said built up area will be handed  over to the Appropriate Authority free of costs. It is stated that  since the Post and Telegraph Department of the Union of India  is not a party to this proceeding, respondent No.1 may not be  held liable if the Mahanagar Telephone Nigam Limited is given  the above built up area free of costs.   

3. Since the Slum Development Authority itself has indicated in  the scheme itself, that the built up area admeasuring 1706 sq.  metres is to be handed over to MTNL, no prejudice would be  caused if respondent No.5 is directed to hand over the built up  area of 1706 sq. metres to MTNL free of costs. We accordingly  direct the respondent No.5 to hand over the above built up area  to MTNL. A copy of this order be served upon the Post Master  General  at  Mumbai.  In  case,  the  Post  Master  General  of  Mumbai has any claim over the built up area in question, it will  be open to the said authority to take up the matter with MTNL  and with Union of India in the concerned ministry. Since the  MTNL has been allotted only built up area admeasuring 1706  sq.  metres,  we are  not  called  upon to  examine the  claim of  5723.10  sq.  metres  made  by  the  petitioner-MTNL  in  this  petition. Any further claim of the petitioner-MTNL with regard  to additional built up area, the petitioner-MTNL will be entitled  to get the same adjudicated by the appropriate authority. The  writ petition stands disposed of.”

9. Soon after disposal of the writ petition Ms. S.I. Shah, who had appeared on  

behalf of the appellant before the High Court, on instructions from her client,  

sent letter dated 12.10.2010 to Wadia Ghandy and Co., advocate for respondent  

No.5, to execute separate MOU for 1706 sq. mtrs. built up area.  That letter reads  

as under:

“S. I. SHAH & CO. ADVOCATES & NOTARY

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 Office : Resi.: S. I. SHAH Navjivan Co-operative Advocate & Notary Housing Society Limited “Veet-Rag Chambers” Bldg. No.9 Flat No. 51, (Old Cama House) Lamington Road, 38, Cawasji Patel Street, Mumbai -400 008 Fort, Mumbai -400 001 Tel.:23010306, 23010700

Tel.:22022928, 22852759   To 12.10.2010   Wadia Ghandy & Co.,  Advocates & Solicitors,  N. M. Wadia Buildings,  123 Mahatma Gandhi Road,  Mumbai -400 001.   Sub:- High Court Mumbai, O.O.C.J

Writ Petition No. 1517 of 2010

Mahanagar Telephone Nigam Ltd. ...Petitioner V/s.

State of Maharashtra & Ors. . ..Respondents

Dear Sir,

We  are  concerned  for  MTNL  in  the  above  matter.  You  have  represented Respondents No. 5, i.e. M/s. Shree Ahuja Properties in the  above matter. The above Petition is disposed of vide an order dt. 30th  July,  2010  and  subsequent  order  dt.  13th  August,  2010  by  their  Lordships Mr. Chief Justice and Mr. Justice S. C. Dharmadhikari.   Your clients are aware that as per an order dt. 8 August, 2008 of slum  Rehabilitation Authority, MTNL is entitled to 1706 sq. mtr. Built up  area free of cost.

We  are  instructed  by  our  clients  to  inform  your  clients  that  the  separate building of the said 1706 sq. mtr. Built up area be constructed  by your clients with separate gate / Entrance as per the specification to  be given by our clients. It is therefore necessary to execute separate  MOU for the said purpose. Your clients be informed accordingly and  

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let  our  clients  know the  specific  time  limit  during which  the  said  construction work will be completed and handed over to our client.

Kindly  do  the  needful  for  execution  of  MOU  in  the  matter  and  handover the Draft  Agreement to be executed between MTNL and  your client.

Thanking you, Yours faithfully,  

Sd/- S. I. Shah & Co.

C.C. To. MTNL”

(underlining is ours)

10. Between  29.12.2010  and  31.10.2011  the  officers  of  the  appellant  and  

respondent No.5 exchanged several communications on the issue of construction  

of separate building on 1706 sq. mtrs. area, which was to be handed over to the  

appellant free of cost  in terms of the order passed by SRA and the direction  

given by the High Court.  Those communications are also reproduced below:

“MAHANAGAR TELEPHONE NIGAM LIMITED,MUMBAI

From: 0/0. D.G.M. Plg.) 3rd Flr., Telephone House,  

Veer Savarkar Marg,  Prabhadevi, Dadar (W),  

Mumbai - 400028

No.PELA-1-691/F.P. 1088/2010-11 Date: 29/12/2010

To,

M/S. Shree Ahuja Properties,  A-1, Rajpipla, Opp. Standard Chartered Bank, Linking Road,  

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Santacruz (W), Mumbai-400054

Sub: High Court Mumbai O.O.C.J., W.P. No.1517/2010  Mahanagar Telephone Nigam Ltd. .. Petitioner  

V/S State of Maharashtra & Ors. .. Respondents

Dear Sir,

With  reference  to  the  above  subject,  as  per  an  order  no.  SRA/Eng/940/GS/ML&STG/LOI  dtd.  8th  August  2008  of  SRA, MTNL is entitled to 1706 sq. mtrs. built up area free of  cost.  Nothing  is  heard  from you  after  the  Honourable  High  Courts judgement dtd. 13th August 2010.

It is to inform you that a separate building is to be constructed  with separate gate/entrance as per the specifications to be given  by MTNL. It is therefore necessary to execute a separate MOU  for he said purpose.

You  are  hereby  requested  to  intimate  the  time  limit  during  which the said construction work will be completed & handed  over to MTNL.

Thanking you, Sd/-

Asst. General Manager (Plg.) MTNL, Mumbai-28.

(24228977)

End: The order copy dtd. 13th August 2010” ___________________________________________________

“MAHANAGAR TELEPHONE NIGAM LIMITED,MUMBAI

From: O/O. D.G.M. (Plg)  3rd, Flr. Telephone House,

Veer Savarkar Marg,  Prabhadevi, Dadar (W),

Mumbai - 400028

No.PELA-l-691/F.P.1088/2010-11 Date: 02/02/2011

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To,

M/S. Shree Ahuja Constructions,  3rd flr., V.N. SPHERE,  199, Linking Road  Opp. Shoppers Stop  Bandra (W), Mumbai-40005

Sub: High Court Mumbai O.O.C.J., W.P. No.1517/2010  

Mahanagar Telephone Nigam Ltd. .. Petitioner V/S

State of Maharashtra & Ors. .. Respondents

Dear Sir,

With  reference  to  the  above  subject,  as  per  an  order  no.  SRA/Eng/940/GS/ML&STG/LOI  dtd.  8th  August  2008  of  SRA, MTNL is entitled to 1706 sq. mtrs. built up area free of  cost.  Nothing  is  heard  from you  after  the  Honourable  High  Courts judgement dtd. 13th August 2010. It is to inform you  that  a  separate  building  is  to  be  constructed  with  separate  gate/entrance as per the specifications to be given by MTNL. It  is therefore necessary to execute a separate MOU for he said  purpose.

You  are  hereby  requested  to  intimate  the  time  limit  during  which the said construction work will be completed & handed  over to MTNL.

MTNL, Mumbai Deputy General Manager (Planning) desires to  have a meeting with you regarding the above issue. Please fix a  convenient day & time for the meeting at an earliest.

Thanking you,

Sd/- Asst. General Manager (Plg.)

MTNL, Mumbai-28. (24228977)”

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“Shree Ahuja Properties and Realtors Private Limited Flat No.301/302/303/304, 3rd Floor, 190 Linking Road, V.N.  

Sphere Bldg., Bandra (West), Mumbai - 400 050 Tel. 66285000  (10 Lines)  Fax: 66285050

Date : 12 July, 2011 To, The Divisional Manager, MTNL, MTNL Building Prabhadevi, Mumbai -400 025

Subject: Submission of MTNL Building Plan

Ref: CTS No. 1087 & 1088, Mahim Division, Rejabhau Desai  Marg, Prabhadevi, Mumbaio-400 025

Dear Sir,

We are submitting the MTNL Building Plan for your record and  future advice. Please acknowledge the same. Thanking You,

Yours Faithfully, For Shree Ahuja Properties & Realtors Pvt. Ltd.  

Sd/-

Authorized Signatory  

Enclose: MTNL Building Plan”

“Shree Ahuja Properties and Realtors Private Limited Corporate Office: V.N. Sphere, Level Three, 199 Linking Road,  Opp. Shoppers Stop, Bandra (W), Mumbai - 400 050 Tel.: +91  

22 66285000  Fax: +91 22 66285050

Date: 14th September, 2011

To, The Divisional Manager, MTNL, MTNL Building, Prabhadevi, Mumbai -400 025

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Subject: Submission of MTNL Building Plan

Ref: CTS No. 1087 & 1088, Mahim Division, Rejabhau Desai  Marg, Prabhadevi, Mumbai-400 025

Dear Sir,

With reference  to  the  captioned Subject  and our  letter  dated  12th July, 2011, in compliance of condition no.23 of Letter of  Intent  No.  "SRA/Eng/940/GS/ML  &  STOL/LOI"  dated  08/08/2008;  please  find  enclosed  the  detailed  Building  Plan  showing  your  building  on  the  same.  As  per  your  letter  no.PELA/1/691/F.P.  No.  1088/2020-11,  dated  02/02/2011  where you asked us for separate building compound and access  all these requirements are satisfied in our plan.

Please arrange to sent the details of specification and necessary  approvals  to  enable  us  to  take  approvals  from  Slum  Rehabilitation Authority at the earliest.

Thanking you,  

Yours Faithfully, For Shree Ahuja Properties & Realtors Pvt. Ltd.

Sd/-

Authorized Signatory  

Enclose: MTNL Building Plan”

“MAHANAGAR TELEPHONE NIGAM LIMITED, MUMBAI (A Govt, of India Enterprise)

O/o. The Dy. General Manager (Plg.) 3Rd, Floor, Telephone  House, V.S. Marg, Dadar (W), Mumbai-28. Tel.No.2436     2333 / Fax 2437 5252

No.PELA-1-691/Standard Mills Compound/2011-12 Date: 31/10/2011

To

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M/s. Shree Ahuja Properties and Realtors Pvt. Ltd.  V.N. Sphere, Level Three,  199 Linking Road, Opp. Shoppers Stop,  Bandra (W), Mumbai - 400 050

Sub: Proposed  building  for  MTNL,  plan  and  layout.  Ref:  Compliance of Condition No. 23 of LOI

Sir,

With reference to your letter dated 14/09/2011, it is brought to  kind notice that in compliance of Condition No.23 of Letter of  Intent  No.SRA/ENG/1940/GS/ML&STOL/LOI  dated  8/08/2008, it was required that the planning and specification  for the said buildable reservation shall be obtained from us.

However,  the  building  plan  and  layout  proposed  by  you  indicates  that  the  proposed building for  MTN is  sandwiched  between  SRA  and  saleable  building.  The  building  is  not  suitable with regard to its size mentioned, apart from the other  difficulties  such  as  separate  building compound,  a  good and  proper access for the members of  public to proposed MTNL  building. Thus the proposed dimensions in the layout building  is not acceptable to us.

In view of the above, kindly re-examine the case and submit  your proper proposal  to have easy access,  prominence and a  good ands usable layout for the proposed MTNL building.

Sd/-

Sr. Manager (LA) MTNL, Mumbai”

11. After having virtually agreed to take 1706 sq. mtrs. built up area free of  

cost, the appellant filed special leave petition questioning the order of the High  

Court. It also filed an application for condonation of 401 days’ delay.

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12. We  have  heard  Shri  Harin  P.  Raval,  learned  senior  counsel  for  the  

appellant,  S/Shri  Mukul  Rohatgi,  P.P.  Rao,  Gopal  Subramanium,  Dr.  A.  M.  

Singhvi  and Shri  Shekhar  Naphade,  learned senior  counsel  appearing for  the  

State of Maharashtra and others and carefully scrutinized the records including  

the files made available by the counsel assisting Shri Raval.  Shri Rohatgi argued  

that the appellant’s prayer for condonation of delay should not be entertained  

because it has not approached the Court with clean hands and the explanation  

given for condonation of more than one year’s delay is wholly unsatisfactory.  He  

pointed out that Shri Dnyaneshwar Konde, who has filed affidavit in support of  

the special leave petition, has verified the contents of the special leave petition,  

synopsis  and  list  of  dates  and  interlocutory  applications  on  the  basis  of  

knowledge derived from the records and an attempt has been made to show that  

Senior  Management  was  not  aware of  the High Court’s  order  till  November,  

2011 but the appellant has deliberately omitted to make a mention of the letter  

sent  by  its  own  advocate  to  the  advocate  of  respondent  No.5  and  the  

correspondence exchanged between the officers of the appellant and respondent  

No.5 on the issue of providing 1706 sq. mtrs.  built  up area free of cost.  Shri  

Rohatgi submitted that even though the officers of the rank of Assistant General  

Manager (Planning),  Divisional Manager and Senior Manager (LA) were very  

much aware that Writ Petition No.1517/2010 had been disposed of by the High  

Court  vide  order  dated  30.7.2010,  which  was  corrected  on  13.8.2010  and  

direction was given to respondent No.5 to deliver 1706 sq. mtrs. of built up area  

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free of cost, but a misleading and false statement has been made in paragraphs 2  

and 3 of the application for condonation of delay that Shri V.T. Dhere, Senior  

Manager (LA) did not bring the High Court’s order to the notice of the Senior  

Management  till  his  retirement  on  31.5.2011  and  the  order  came  to  the  

knowledge  of  the  Senior  Management  during  the  pendency  of  SLP(C)  

No.22747/2010 filed by three occupants of tenement Nos. 591, 592 and 593 in  

respect of the adjoining plot. Learned senior counsel emphasised that the theory  

of  the Additional  Solicitor  General  becoming aware of  order dated 13.8.2010  

from the file summoned on 7.11.2011 is clearly an afterthought and a patently  

incorrect statement has been made to persuade this Court to entertain the special  

leave petition by condoning the unexplained delay of more than one year. Shri  

Rohatgi  also invited the Court’s  attention to paragraph 5(vii)  of  the rejoinder  

filed by the appellant to the counter affidavit of respondent No.5 to show that as  

early as in February, 2011 officers of the appellant became aware about the order  

passed  by  the  High  Court.  Shri  Rohatgi  submitted  that  the  conduct  of  the  

appellant in seeking the intervention of the Court with unclean hands is sufficient  

for non-suiting it. In support of his submissions,  Shri Rohatgi relied upon the  

judgments of this Court in Dalip Singh v. State of U.P. (2010) 2 SCC 114, Oswal  

Fats and Oils Ltd. v. Commr. (Admn.) (2010) 4 SCC 728 and Postmaster General  

v. Living Media India Ltd. (2012) 3 SCC 563 and order dated 16.2.2012 passed  

in IA Nos.3-5 in SLP(C) No.4810/2012.

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13. Shri  P.P.  Rao,  Shri  Gopal  Subramanium and Dr.A.M.  Singhvi,  learned  

senior  counsel  appearing  for  other  respondents  supported  Shri  Rohatgi  and  

argued that the appellant is not entitled to be heard on the merits of the case  

because it  deliberately withheld several  facts  from this Court.   Shri  P.P.  Rao  

relied upon the judgment in Hari Narain v. Badri Das (1964) 2 SCR 203 (at 207,  

208 and 209). Dr. Singhvi relied upon the judgment in Udai Chand v. Shankar  

Lal (1978) 2 SCC 209.

14. Shri Harin P.Raval, learned senior counsel appearing for appellant invited  

our  attention  to  affidavit  dated  17.2.2012  filed  by  Executive  Director  of  the  

appellant  and some portions of  the rejoinder filed to the counter  affidavits of  

respondent  Nos.  5  and 6 and argued that  the appellant  cannot  be accused of  

concealment  of  material  facts  because  none of  the  senior  officers  was  aware  

about the disposal of the writ petition by the High Court till November, 2011.  

Shri Raval emphasised that the correspondence exchanged between the counsel  

for the appellant and counsel for respondent No.5 or between respondent No.5  

and officers of the rank of Assistant General Manager, Divisional Manager and  

Senior Manager (LA) cannot lead to an inference that Senior Management of the  

appellant was having knowledge about the High Court order. Shri Raval relied  

upon the judgment in State of Karnataka v. Y. Moideen Kunhi (2009) 13 SCC  

192 and argued that in matters like the present one in which larger public interest  

is  involved,  this  Court  should  overlook small  aberrations  in  the  pleadings  or  

delay in filing the special leave petition.

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15. We have considered the respective submissions. In paragraphs 2 and 3 of  

the application for condonation of delay, the appellant has tried to explain the  

delay by making following averments:

"2. That it is submitted that the writ petition was being pursued  by the Land Acquisition Department of MTNL, Mumbai and  was  entrusted  to  Shri  V.T.  Dhere,  Sr.  Manager,  (Land  Acquisition), ST No.71898. The said officer attended the court  hearings regularly during pendency of the petition before the  Hon'ble High Court. However, the passing of the order dated  13.08.2010 by the Hon'ble High Court was not brought to the  knowledge of the Sr. Management of the petitioner by Mr. V.T.  Dhere, Sr. Manager. In the meanwhile, Shri V.T.Dhere retired  from the services of the petitioner w.e.f. 31.5.2011.

3. That the order dated 13.8.2010 came to the knowledge of the  Sr. Management of the petitioner during the pendency of SLP  (C)  No.22747/2010 filed by three occupants  of  the tenement  No.591, 593 and 592 in respect of adjoining plot No.FP No.  1087  TPS  IV  Mahim,  Mumbai,  before  this  Hon'ble  Court.  While defending the said SLP, the Ld. ASG, called for the file  from the Legal  Cell  pertaining to the impugned order  in  the  present  case  relating  to  plot  No.  1088  on  7.11.2011.  On  perusing the file the Ld. ASG became aware of the order dated  13.08.2010  passed  in  respect  of  plot  no.  1088  in  WP  No.  1517/2010  and  sought  the  comments  from  the  Ministry  regarding order dated 13.08.2010. On this the petitioner came to  know about the order dated 13.08.2010 and it was advised to  the petitioner to take appropriate steps for challenging the order  dated  13.8.2010  in  Writ  petition  No.  1517/2010.  It  is  also  relevant to note that the Ministry of Environment and Forest  and the Ministry of Communication & Information Technology  had  vehemently  defended  SLP  (C)  22747/2010  before  this  Hon'ble Court and had vehemently opposed the action of the  State Govt, of Maharashtra in taking away the land bearing plot  no.  1087  and  1088  under  the  'Slum Rehabilitation  Scheme',  which belongs  to  the  petitioner  and was  acquired  for  public  purposes  of  the  petitioner.  However,  the  said  SLP  was  dismissed  as  withdrawn  in  view  of  settlement  of  disputes  between  the  petitioners  in  that  SLP  and  the  concerned  Developer. However, while allowing the petitioners in the said  

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SLP  the  Hon'ble  court  had  observed  that  the  rights  of  the  Ministry of Communication and Information Technology and  the Ministry of Environment and Forest would not be effected  and they were granted liberty to take appropriate  steps.  It  is  submitted, that the present case is being filed on the ground that  public  interest  and  exchequer  has  been  defrauded  to  benefit  private individuals."

16. At the cost of repetition, we deem it proper to observe that the averments  

contained in the application for condonation of delay have been verified by Shri  

Dnyaneshwar Konde, who filed affidavit in support of the special leave petition,  

on the basis of knowledge derived by him from the record.  He is an officer of the  

rank of Divisional Engineer.  Therefore, it is reasonable to presume that before  

filing the affidavit he must have gone through the entire record including letter  

dated 12.10.2010 sent by Ms. S.I. Shah, Advocate for the appellant to Wadia  

Ghandhy & Co., who represented respondent No.5 before the High Court and the  

correspondence exchanged between the officers of the appellant and respondent.  

A reading of that letter shows that Ms. S.I. Shah had written to the advocate for  

respondent No.5 on the basis of the instructions given by the concerned officers  

that  separate  MoU  is  required  to  be  executed  in  respect  of  1709  sq.  mtrs.  

constructed area,  which was handed over  to  the appellant.   This  inference  is  

strengthened by the letters of Assistant General Manager (Planning), Divisional  

Manager and Senior Manager (L.A.), which were sent  to respondent No.5.

17. However, with a view to keep this Court in dark about the correspondence  

exchanged on the issue of allotment of 1706 square meters of built up area by  

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respondent  No.5  to  the  appellant  free  of  cost,  the  concerned  officer  made  a  

patently incorrect statement that order dated 13.8.2010 was not brought to the  

knowledge of the Senior Management of the appellant by Mr. V.T. Dhere.  In our  

view, Ms. S.I. Shah could not have written letter to the Advocate of respondent  

No.5, on her own, on the issue of signing of MoU for transfer of 1706 square  

meters of built up area by respondent No.5. Any person of ordinary prudence is  

entitled  to  assume  that  she  must  have  done  so  under  the  instructions  of  the  

concerned officers.  The three officers who exchanged letters with respondent  

No.5  were  Class-I  Officers  of  the  appellant.   They  must  have  written  to  

respondent  No.5  on  the  basis  of  instructions  given  by  the  higher  officers.  

Therefore, the mere fact that the file notings do not contain a corresponding entry  

cannot lead to an inference that the senior management of the appellant was not  

aware of  the  High Court’s  order.   If  Ms.  S.I.  Shah and three  officers  of  the  

appellant  had  exceeded  their  brief  and  unauthorisedly  exchanged  

communications with respondent No.5 and its Advocate, then the senior officers  

of the appellant would have certainly taken action against them.  However, it is  

neither the pleaded case of the appellant nor it has been suggested that Ms. S.I.  

Shah and three officers had acted unauthorisedly.  The averments contained in  

paragraph  5(vii)  of  the  rejoinder  filed  by  the  appellant  to  the  counter  of  

respondent No.5 clearly shows that as early as in February, 2011, the officers of  

the appellant  knew that  the  High Court  had disposed  of  the  writ  petition by  

directing  respondent  No.5  to  hand  over  1706  sq.  mtrs.  built  up  area  to  the  

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appellant free of cost.  Therefore, the assertion contained in the application for  

condonation of delay that the Senior Management did not know of the direction  

given by the High Court till November, 2011 cannot but be treated as a deliberate  

attempt to mislead the Court and on that ground alone the prayer for condonation  

of delay is liable to be rejected.

18. In Hari Narain v. Badri Das (supra), this Court considered the prayer made  

by the respondent for revocation of leave granted to the appellant who was a  

tenant in the suit premises.  The respondent had sued the appellant for eviction on  

the ground of default in payment of rent and house tax.  The trial Court dismissed  

the  suit.   The  appellate  Court  set  aside  the  judgment  of  the  trial  Court  and  

decreed the suit.  The second appeal filed by the appellant was dismissed by the  

High Court.   In  the  petition  for  special  leave,  the  appellant  made  inaccurate  

statement about his status as a statutory tenant and on the issue of payment of  

rent.  Shri M.C. Setalvad, appearing on behalf of the appellant submitted that he  

had not urged the particular grounds at the time of grant of leave.  While agreeing  

with Shri  Setalvad,  this Court  refused to accept the explanation given by the  

appellant  for  the  inaccurate  statement  made  in  the  special  leave  petition  and  

revoked the leave.  This is evinced from the following observations made in the  

judgment:

“It is true that in the present case, special leave was granted on  26th  September,  1962  and  it  is  possible  for  Mr  Setalvad  to  recall what he argued before the Court when special leave was  granted. But it is necessary to bear in mind that the appeal may  

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come on for  hearing long after  special  leave is  granted,  that  counsel  appearing at  the  stage  of  admission  may not  be  the  same as at the stage of final hearing, and the Bench that granted  special leave may not necessarily deal with the appeal at with  final  stage.  Therefore,  it  is  no  answer  to  the  respondent's  contention  that  though the  material  statements  in  the  special  leave  petition  may  be  substantially  inaccurate,  though  not  wholly untrue, those statements may not have influenced the  Court in granting special  leave. Mr Setalvad has also invited  our  attention  to  the  fact  that  the  impugned  statements  and  grounds are substantially copied from the averments made in  the appeal before the High Court. That may be so, but the fact  still remains that two important statements which, if true, may  have been considerable assistance to the appellant in invoking  the  protection  of  Section  13(1)(a)  even  on  the  construction  placed by the High Court on that section are found to be untrue,  and  that,  in  our  opinion,  is  a  very  serious  infirmity  in  the  petition itself. It is of utmost importance that in making material  statements and setting forth grounds in applications for special  leave, care must be taken not to make any statements which are  inaccurate, untrue or misleading. In dealing with applications  for special leave, the Court naturally takes statements of fact  and grounds of fact contained in the petitions at their face value  and it would be unfair to betray the confidence of the Court by  making statements which are untrue and misleading.”  

(emphasis added)

19. In Dalip Singh v. State of Uttar Pradesh (supra), this Court considered the  

question  whether  relief  should  be  denied  to  the  appellant  who  did  not  state  

correct facts in the application filed before the Prescribed Authority and who did  

not approach the High Court with clean hands.  After making a reference to some  

of the precedents, the Court observed:

“while exercising discretionary and equitable jurisdiction under  Article 136 of the Constitution, the facts and circumstances of  the case should be seen in their entirety to find out if there is  miscarriage of  justice.  If  the appellant  has not  come forward  

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with clean hands, has not candidly disclosed all the facts that he  is aware of and he intends to delay the proceedings, then the  Court  will  non-suit  him  on  the  ground  of  contumacious  conduct.”

20. In  Oswal  Fats  and  Oils  Limited  v.  Additional  Commissioner  

(Administration)  (supra),  relief  was  denied  to  the  appellant  by  making  the  

following observations:

“It is quite intriguing and surprising that the lease agreement  was not brought to the notice of the Additional Commissioner  and the learned Single Judge of the High Court and neither of  them was apprised of the fact that the appellant had taken 27.95  acres  land  on  lease  from  the  Government  by  unequivocally  conceding  that  it  had  purchased  excess  land  in  violation  of  Section  154(1)  of  the  Act  and  the  same  vested  in  the  State  Government. In the list of dates and the memo of special leave  petition filed in  this  Court  also there is  no mention of  lease  agreement dated 15-10-1994. This shows that the appellant has  not approached the Court with clean hands. The withholding of  the  lease  agreement  from  the  Additional  Commissioner,  the  High Court and this Court appears to be a part of the strategy  adopted by the appellant to keep the quasi-judicial and judicial  forums  including  this  Court  in  dark  about  the  nature  of  its  possession over the excess land and make them believe that it  has  been  subjected  to  unfair  treatment.  If  the  factum  of  execution of lease agreement and its contents were disclosed to  the  Additional  Commissioner,  he  would  have  definitely  incorporated  the  same  in  the  order  dated  30-5-2001.  In  that  event, the High Court or for that reason this Court would have  non-suited  the  appellant  at  the  threshold.  However,  by  concealing  a  material  fact,  the  appellant  succeeded  in  persuading  the  High  Court  and  this  Court  to  entertain  adventurous litigation instituted by it and pass interim orders. If  either of the Courts had been apprised of the fact that by virtue  of lease deed dated 15-10-1994, the appellant has succeeded in  securing temporary legitimacy for  its  possession  over  excess  land,  then  there  would  have  been  no  occasion  for  the  High  Court or this Court to entertain the writ petition or the special  leave petition.

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20. It is settled law that a person who approaches the court for  grant  of  relief,  equitable  or  otherwise,  is  under  a  solemn  obligation to candidly disclose all the material/important facts  which have bearing on the adjudication of the issues raised in  the case. In other words, he owes a duty to the court to bring out  all  the  facts  and  refrain  from  concealing/suppressing  any  material  fact  within  his  knowledge  or  which  he  could  have  known by exercising diligence expected of a person of ordinary  prudence. If he is found guilty of concealment of material facts  or making an attempt to pollute the pure stream of justice, the  court not only has the right but a duty to deny relief to such  person.”

(emphasis supplied)

21. By applying the ratio of the above noted judgments to the facts of this  

case, we hold that the appellant is guilty of not coming to this Court with clean  

hands and the explanation given by it for 401 days’ delay has to be treated as  

wholly unsatisfactory and the prayer  for  condonation of  delay is  liable  to  be  

rejected.

22. The judgment in State of Karnataka v. Y. Moideen Kunhi (supra) on which  

reliance has been placed by Shri Harin P. Raval contains reiteration of the settled  

principles  of  law that  the  Court  should  be  liberal  in  exercising  power  under  

Section 5 of the Limitation Act and cognizance can be taken of the impersonal  

character of the Government as also inefficiency, lethargy and tardiness in the  

functioning of the State and its agencies which, at times, results in delay and that  

while deciding the application for condonation of delay, the Court should keep in  

mind the larger public interest.  However, that proposition cannot be invoked in  

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the appellant’s case because it has been found guilty of suppression of facts and  

making misleading statement.  

23. Notwithstanding the above conclusion, we have considered the appellant’s  

challenge to the order of the High Court, the tenor of which gives an impression  

that counsel appearing for the parties had agreed to the transfer of 1706 sq. mtrs.  

built  up  area  by  respondent  No.5  to  the  appellant.   If  this  was  not  so,  the  

appellant’s  counsel  would  not  have  written  letter  dated  12.10.2010  to  her  

counterpart  for  execution  of  separate  MoU and to indicate  the  time limit  for  

completion of the construction and handing over of possession and the officers of  

the appellant would not have entered into correspondence with respondent No.5  

for  construction  of  separate  building  and  providing  independent  access.  

Therefore,  the  appellant  cannot  be  heard  to  make  a  grievance  against  the  

impugned order.  

24. The matter deserves to be considered from another angle. If the appellant  

was of the view that the High Court had disposed of the writ petition without  

examining its prayer for issue of a mandamus to the concerned respondents to  

deliver possession of the acquired land, then it would have filed a petition for  

review of the impugned order by asserting that even though the grievance made  

in the writ petition in the matter of non-delivery of possession of the acquired  

land had been highlighted during the course of hearing, the same has not been  

decided by the High Court.   However,  the fact  of  the matter  is  that  no such  

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appellant and we do not find any justification for entertaining the prayer for issue  

of a mandamus at this belated stage by ignoring the developments which have  

taken place in the intervening period.

26. In the result, the appeal is dismissed as barred by time and also on merits.   

            ..................................................J.      (G.S. SINGHVI)

    ..................................................J.    (V. GOPALA GOWDA)

New Delhi; July 11, 2013.

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