Petitioners sought possession of plots allotted to them under government resolutions. Court held that pending allotment cases require fresh applications to competent authority per guidelines in W.P. 75/2004. Petition dismissed for failure to comply with regulatory framework.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.393 OF 2008
Yateemkhana & Madrasa Anjuman
Khairul Islam & Anr. .... Petitioners
Vs.
State of Maharashtra & Anr. .... Respondents
Sri R.A. Shaikh for the Petitioners.
Sarvasri Ravi Kadam, Advocate General a/w
D.A. Nalawade, Government Pleader for the
Respondent Nos.1 and 2.
CORAM: SRI R.M.S. KHANDEPARKAR &
SRI A.A. SAYED, JJ.
DATED: JULY 17, 2008
ORAL ORDER (Per Sri R.M.S. Khandeparkar, J.):
1. Heard. By the present petition the petitioners are
seeking direction to the respondent No.2 to forthwith
handover the possession of the four plots which,
according to the petitioners, were agreed to be allotted
to the petitioners by the respondent No.1 under the
Orders dated 20-3-2002 and 2-1-2003 pursuant to the
decision by the Cabinet Sub-Committee in the Resolutions
dated 1-1-2002 and 16-7-2002 in accordance with
Resolution 16 issued under the Maharashtra Housing &
Area Development (Disposal of Land) Regulations, 1982.
It is the case of the petitioners that in the 16th
meeting of the Ministerial Sub-Committee held on
1-1-2002 it was decided that plot No.9 admeasuring 4960
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sq.mtrs., reserved for play-ground, to be allotted to
the petitioners and further in their meeting held on
16-7-2002 it was decided to allot three plots, namely,
plot Nos.A-5 admeasuring 2206 sq.mtrs., A-22 admeasuring
2257 sq.mtrs., and A-23 admeasuring 2160 sq.mtrs. to be
allotted to the petitioners. However, till this day the
respondents have avoided to deliver the possession of
the said plots without any justification and, therefore,
necessary direction needs to be issued to the
respondents to deliver the possession thereof to the
petitioners.
2. The learned Advocate General, drawing our attention
to the decision of the Division Bench of this Court in
Writ Petition No.75 of 2004 {Ninad Gas Service v. State
of Maharashtra}, delivered on 3-3-2004, submitted that
pursuant to the filing of the said petition, wherein the
petitioner therein had sought direction to the State
Government to formulate guidelines for exercise of
powers under Regulation 16 and further that the powers
under Regulation 16 should not be exercised unless the
guidelines are approved by the Court, this Court by the
interim order dated 3-3-2004 had directed the Government
to formulate and place at the disposal of the Court the
necessary directives and guidelines which would govern
the exercise of powers under Regulation 16 and further
that till such guidelines are framed and approved by the
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Court, the Government was directed not to exercise
powers under Regulation 16 as well as not to dispose of
any of the plots and even direction in that regard was
issued to MHADA not to give effect to any pending
proceedings. Pursuant to the said interim order, the
Government had classified the cases in two parts - those
which were already cleared by way of delivery of
possession and acceptance of money pursuant to the
allotment decision taken by the competent authority and
those wherein merely decisions for allotment were taken
but no further steps were taken in that regard and the
latter cases were considered as the pending cases.
Pursuant to the interim order, in all the pending cases
the Government had not taken any further steps and the
case of the petitioners was in the second category. In
the category of pending cases, no further steps were
taken, neither the exact area was demarcated, nor the
possession was delivered nor any amount or price of the
plot was accepted, nor any decision regarding concession
in the matter of price to be paid by the allottees was
taken and consequently it was merely a pending case
which was covered by the interim order granted in the
said writ petition. Pursuant to disposal of the said
writ petition, it was specifically directed by this
Court in the order dated 15-12-2004 as under:
"19. Shri Naphade, learned Senior
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Counsel appearing for State and MHADA
makes a statement that upon approval of
these guidelines by this Court, all
pending cases would be considered in the
light of observations made in this
judgment as well as in accordance with
the guidelines as approved by this
Court. The apprehension of petitioners
that exercise of powers would be wholly
arbitrary and without any guidance, is,
therefore, not well founded. We record
the statement of the learned Counsel
appearing for State and MHADA and direct
that the State Government shall strictly
abide by the guidelines while exercising
powers under Regulation 16. Needless to
observe that the State would be entitled
to consider applications for allotment
on their merits and in accordance with
law. Further, needless to observe that
individual allotments could always be
subject matter of challenge in
independent proceedings and neither the
observations made in this judgment nor
in our earlier order would constitute a
bar for aggrieved persons to approach
appropriate authorities including this
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Court."
3. The learned Advocate General further submitted that
consequent to the said directions by this Court, as the
petitioners’ allotments were falling in the category of
pending cases, and as no further steps were taken
consequent to the decision of this Court in the said
writ petition, same will have to be reconsidered in
accordance with the guidelines laid down and for that
purpose the petitioners will have to approach the
competent authority in terms of Regulation 16.
Undisputedly, the petitioners have not approached the
competent authority in that regard till this day.
4. The learned counsel for the petitioners thereupon
submitted that the petitioners were not parties to the
Writ Petition No.75 of 2004. Merely because the
petitioners were not parties to the said writ petition,
that would not absolve the Government from not complying
with the directions issued under the said order and,
therefore, the decision in Ninad Gas Service (supra)
would be binding upon all the parties who are interested
in obtaining any plot in terms of Regulation 16 of the
said Regulations. Considering the same and considering
the fact that in the case of the petitioners, apart from
the fact that the decision to allot the plot was
admittedly taken prior to 15-12-2004 and thereafter no
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further steps were taken pursuant to the said decision,
as rightly submitted by the learned Advocate General, it
was a pending case within the meaning of the said
expression under the said decision and, therefore, no
fault can be found with the decision of the respondents
requiring the petitioners to move afresh to get the
plot, if they so desire, by taking resort to Regulation
16 of the said Regulations read with the guidelines
approved in the said writ petition. Till and until the
petitioners do not comply with the said Regulation, no
fault can be found with the respondents’ decision not to
deliver the possession of the said plots. Viewed from
this angle, we do not find any case having been made out
for interference in the case in hand. The petition,
therefore, fails and is rejected.
(A.A.Sayed, J.) (R.M.S.Khandeparkar, J.)
sjs/J8wpo393.8
2 issues framed by the court
Whether directions issued in a prior writ petition by non-parties bind the respondents to allot plots without complying with stated regulations.
Whether the petitioners' allotment cases constitute pending cases requiring fresh application under Regulation 16.
Colour shows how this judgement treated each authority
Ninad Gas Service v. State of MaharashtraRelied on¶23
Ninad Gas Service v. State of Maharashtra, Writ Petition No.75 of 2004
1 provisions across 1 enactments
Yateemkhana & Madrasa Anjuman
Khairul Islam
State of Maharashtra
R.M.S. Khandeparkar
A.A. Sayed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court