Allowed

Dharamchand Nemichand Jain v. City and Industrial Development Cor. Ltd. and Ors.

Bombay HC26 Mar 2008WP/536/2004

Case brief

AI extract

What is this about?

Petitioner challenged cancellation of land allotment letters under a 12.5% scheme. Court held partnership firm is not a separate legal entity and partners are real owners. Impugned orders denying benefits to the firm were set aside.

What did the court decide?

Cancellation letters set aside; direction to hand over possession of Plots No. 76, 77, and 79 in Sector 5, Kopar Khairane, Navi Mumbai.

Dharamchand Nemichand Jain Vs City and Industrial… — Property and Title | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.536 OF 2004

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Dharamchand Nemichand Jain

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....Petitioner

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V/s.

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City and Industrial Development Corporation (Maharashtra) Ltd. & Ors.

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....Respondents

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Mr.Aspi Chinoy I/s. Ms.Chandana Salgaonkar Radia for Petitioner. Mr.Y.S.Jahagirdar with G.S. Hegde & C.M. Lokesh for Respondent No.1 & 2.

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Mr.R.M. Patne, AGP for the Respondent No.3.

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CORAM : D.K. DESHMUKH &

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DATED : 26^th MARCH, 2008

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P.C.:-

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1. By this Writ Petition filed under Article 226 and 227 of the

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Constitution of India, the Petitioner is seeking following reliefs:-

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“23. The petitioner therefore, most humbly

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prays that this Hon'ble Court may graciously be

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pleased to:

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a. Issue a direction or order in the nature

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of Writ of Mandamus to respondents to hand over possession of Plots No.76, 77 and 79 in sector 5, Kopar Khairane, Navi Mumbai as per allotment letters dated 13.05.2003(Exh.D & E).

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a 1) Issue a direction, order or order in the nature of writ of certiorari quashing the Cancellation letter date 6/1/2003 and 19/1/2004 (Exhibit G & I).

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b. that pending the hearing and final disposal of the petition the respondents be restrained from cancelling the allotment of Plots No.76, 77 and 79 in sector 5 of Kopar Khairane, Navi Mumbai allotted in letters dated 13.05.2003 (vide Exh.D & E).

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c. Grant ex parte ad interim relief in

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terms of prayer(b) above.

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d. Grant such other and further relief as

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the nature and circumstances of the case may

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required.”

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Brief facts, in nutshell, are as under:-

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It is case of the Petitioner that they were owners of agricultural

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land and he alongwith ancestors were farmers for more than 80 years. The Respondent No.3- State of Maharashtra took a decision to develop an area known as Navi Mumbai and this decision was taken to develop a Satellite City of Bombay so that part of the ever growing population could be shifted to the new township. Land Acquisition proceedings, therefore, were initiated by the Special Land Acquisition Officer and this land could be handed over to the Respondent No.1 CIDCO for further development of the township. Land of the Petitioner was acquired under Land Acquisition Act, 1894 and compensation was also paid in accordance with the provisions of Land Acquisition Act, 1894.

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The State of Maharashtra, further, took policy decision to

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rehabilitate the agriculturists who were affected by the project and it was decided to allot plots of land for the development of new city to the extent of 12.5% of the area acquired from that persons. The Respondent No.2, accordingly, made an investigation. After satisfying himself that the land was used by the Petitioner, the Respondent No.2 issued a letter of intention to allot a plot and asked the Petitioner and his family members to deposit the amount which was required to be deposited by the owners according to the scheme. The Petitioner himself and others, in pursuance of the letter issued by the Respondent No.2, deposited a sum of Rs.1, 54, 435/- on 28/06/1999 and receipt for the payment of said amount was given by the Respondent No.2.

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Thereafter on 13/05/2003, the Respondent No.2 issued two allotment letters to the Petitioner and his brother Shri.Parasmal Haqarimal Jain allotting 2107.50 sq. metres in Sector 5, Kopar Khairane, Plot No.76 and 77 and 843.15 sq. metres in sector 5, Kopar Khairane, Plot No.79. It was further mentioned in the allotment letter that permission to transfer the plots could not be given till the disposal of the court case between M/s.B.S. Construction(P) Ltd., and the Petitioner.

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The Petitioner approached the Respondent No.2 on 30/12/2003

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and requested them to enter into an agreement. When further inquiry was made, the plot was likely to be allotted to some other persons and when inquires were made, they were informed that the allotment under 12.5% scheme could not be made and the concerned file had been closed and therefore, the Respondent No.2 issued a letter informing the Petitioner that as per decision dated 11^th May, 2001 allotment under the 12.5% scheme could not be made since the name of the Petitioner was Abaji Satraji Company. By the said letter, letter of intention dated 14/05/1999 as also letter of allotment dated 13/05/2003 were cancelled. Being aggrieved by the aforesaid decision, the Petitioner has preferred this Writ Petition under Article 226 and 227 of the Constitution of India.

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The learned counsel appearing on behalf of the Petitioner submitted that decision of the Respondents of cancelling the allotment on the ground that the Petitioner was an institution or a company and therefore, was not entitled to the allotment, was clearly illegal. He submitted that it was well settled position in law that partnership firm is not

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an independent legal entity and that firm's name was only a compendious name given to the partnership firm and that the partners are the real owners of its assets. He submitted that therefore, the Government erred in treating the said firm as a company or an institution. He submitted that initially when the letter was issued by the Respondents, thorough investigation was made by them and after they satisfied that the Petitioner

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and family members were personally cultivating the land, said allotment had been made.

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Shri.Jahagirdar, the learned counsel for the CIDCO submitted that they had asked for clarification from the Government as to whether allotment could be made in case of partnership firm and he submitted that the Government had informed them that in view of policy decision taken by the Government only those persons actually cultivating the land could be allotted the plots under 12.5% scheme and therefore, said allotment was cancelled. He invited our attention to the correspondence and clarification given by the Government.

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We have perused the relevant documents which are annexed to

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the Petition and affidavit filed by the Respondents. Letter dated 11^th May, 2001 which is addressed to the General Manager(Administration), CIDCO and which is written by P.V. Ghadge, Joint Secretary to the Government of Maharashtra, was written only to give clarification in respect of Clause 'J' in the resolution issued by the Government on granting to the land owners 12.5% land of the lands acquired in Navi Mumbai. He has stated as under:-

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“Sir,

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With reference to your above said letter on the subject,

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this is to inform you that except individual, all the organizations are included in the term “Public Charitable Institutions and other institutions'. Except individual land holders, 12.5% scheme is not applicable to any organization.”

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Similarly a letter is written by M.R. Patil, Desk Officer, Government of Maharashtra to the General Manager City and Industrial Development Corporation Limited dated 9^th January, 2004. This letter has been written in reply to the letter written by the CIDCO dated 16/7/2003

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seeking clarification in respect of allotment made to the Petitioner herein. In the said letter he has observed as under:-

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“Sir,

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On the above mentioned subject, reference mentioned at Sr.No.2 may please be seen. Vide said reference, you sought guidelines from the Government in respect of allotment of land under 12.5% scheme to Shri Parasmal Hajarimal Jain and other. In a proposal sent

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to the Government in this regard, you have mentioned that in case of land holder, Shri Parasmal Hajarimal Jain and other, name of Abaji Satraji Company has occurred. In this regard, your attention is invited to Clause (J) of Government Resolution of Urban Development Department, bearing No.LQN/1985/ 1710/CR-217/85/ Navi-10, dated 06 March 1990. The clarification regarding said clause ' J' has already been

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sent to you vide Government letter Navivi No.CID2000/1755/Pra.Kra. 12/01/Navi-10 dated 11 May

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A copy of said letter is enclosed for your ready reference. It will be thus clear from this that except individual, the term 'Public Charitable Institutions/Other

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institutions' include all the organizations. Except individual land holder, 12.5% scheme is not applicable to any institution/ organization, etc.

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In the case under reference, land holder is mentioned as 'Abaji Satraji Company' in land acquisition award. Therefore, this company is not eligible for allotment of land under 12.5% scheme.

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A perusal of the aforesaid two letters clearly discloses that the Government has treated the partnership firm as a separate legal entity or a company and on that basis, has denied allotment which was made to them.

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It would be relevant to consider ' Clause J' of the scheme. ' Clause J' of the Government Resolution dated 6^th March, 1990 reads as under:-

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“J) The Agricultural land owners who do not

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themselves cultivate their own lands('Absentee landlords') the salt works owner, the Public Trusts and other Institutions shall not get the benefit of the said

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land allotment scheme.”

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It is obvious that the Government treated the Petitioner's firm as an institution and therefore, held that they were not entitled to get benefit of the land allotment scheme. In our opinion, the Government has clearly erred in interpreting the partnership firm as an institution having separate legal entity. It is a matter of record that Special Land Acquisition Officer during the course of inquiry at the time when land was acquired, has clearly recorded that the Petitioner and family members were agriculturists and were personally cultivating the land. This fact has not been denied by the Respondents. Petitioner has also submitted the detailed statement when the investigation was made before the allotment of land to the firm and in the said statement, all details regarding the manner in which land is cultivated and all other details have been mentioned. A copy of which is annexed to the Petition. It is, therefore, apparent that the Petitioner and his family members were personally cultivating the land. It is well settled

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position in law that partnership firm is not an independent legal entity and that the firm's name is only compendious name given to the partnership and therefore, the partners are the real owners of its assets. The Apex Court in the case of N. Khadervali Saheb(Dead) by LRS. & Anr. V/s. N. Gudu Sahib(Dead) & Ors. reported in (2003) 3 Supreme Court Cases 229, has considered the said question and held that partnership firm is not an independent legal entity. Firm name is only a compendious name given to the partnership and the partners are the real owners of its assets. There are catena of judgments of the Apex Court on the said point. It is apparent that the Respondents were mislead by the firm's name which is M/s.Abaji Satraji Company. Merely because the word 'Company' is used to describe the name of the firm, it does not become a separate legal entity but the partners are the real owners of its assets. Impugned order, therefore passed by the Respondents is liable to be set aside. Cancellation letters dated 6/1/2003 and 19/1/2004 which are annexed at Ex.G & I are quashed and set aside. The Respondents are directed to hand over possession of the Plots No.76, 77 and 79 in Sector 5, Kopar Khairane, Navi Mumbai as per allotment letter dated 13/5/2003. Writ Petition is allowed in terms of

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prayer clauses(a) and (a1). Rule is made absolute accordingly. Under the

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circumstances, there shall be no order as to costs.

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( D.K. DESHMUKH, J.)

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(V.M. KANADE, J.)

Dharamchand Nemichand Jain v. City and Industrial Development Cor. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Dharamchand Nemichand Jain v. City and Industrial Development Cor. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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