Dismissed

Proposed Vaibhav v. State of Maharashtra and 4 Ors.

Bombay HC24 Feb 2012WP/928/2010

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a petition challenging land allotment to a cooperative society, holding that the petitioners could not raise new grounds regarding the allotment after omitting them in a prior writ. The Court rejected claims that the allotment was void due to subsequent disqualification of ineligible founder members or procedural irregularities in land rules.

What did the court decide?

The writ petition is dismissed as devoid of merits.

Proposed Vaibhav Vs State of Maharashtra and 4 Ors. — Property and Title | Bombay HC (2012)

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SQP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.928 OF 2010

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Proposed Vaibhav Cooperative Housing Society, Mumbai through its Chief Promoter Hiraman Umaji Nirbhavane, aged 62 years, Occ.Retired, residing at C/o Chinar Coop. Housing Society Ltd., B-301, 3^rd Floor, Parsik Nagar, Kalwa, Thane.

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...Petitioners

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Versus

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1.State of Maharashtra, through The Chief Secretary, Mantralaya, Mumbai.

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2.The Under Secretary, Revenue & Forest Department, Mantralaya, Mumbai.

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3.The Divisional Commissioner, Kokan Division, Kokan Bhavan, 1^st Floor, Navi Mumbai-400 614.

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4.The Collector, Mumbai Suburban District, Administrative Building, Bandra (East), Mumbai – 400 051.

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5.Medinova Regal Cooperative Housing Society Ltd., having its Address at B/7, Chittaranjan Nagar Rajawadi, Ghatkopar (East), Mumbai – 400 077.

...Respondents

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Mr.S.S.Patwardhan for Petitioners.

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Ms.Geeta Shastri, A.G.P. for Respondent Nos.1 to 4.

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Mr.Sandeep Marne for Respondent No.5.

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CORAM:- A.M.KHANWILKAR AND N.M.JAMDAR, JJ. DATED:- FEBRUARY 24, 2012.

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P.C.

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This is second round of litigation by the petitioners herein. In this

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Petition filed under Article 226 of the Constitution of India, it is prayed that direction be issued to respondent Nos.1 and 2 to forthwith cancel and/or revoke the impugned order-cum-letter dated 7^th December, 2009 Exhibit

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`Z’. Petitioners have further prayed for directions against respondent No.2

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to consider and decide proposal submitted by the petitioners for allotment of plot of land at Bandra (East), Kherwadi, Taluka Andheri, District

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Mumbai Suburban.

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By the communication dated 7^th December, 2009 Exhibit `Z’, the Under Secretary, Revenue and Forest Department informed the Collector

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that the Divisional Commissioner, Kokan Division has opined that out of seven named members of the respondent No.5 Society, only two were found to be eligible for membership as per the conditions specified in Government Resolution (GR) dated 25^th May, 2007. After excluding said five persons, only eight members of respondent No.5 were eligible as per the norms in GR dated 25^th May, 2007 and the Society could add new members by following procedure specified in Condition No.2 of Government Memorandum dated 10^th April, 2008.

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In the first round of Writ Petition being Writ Petition No.2185 of 2008, the petitioners herein had challenged the Letter of Intent dated 16^th January, 2003 issued in favour of proposed Society formed by Dr.C.N.Shenoy and 10 others as well as the allotment of plot made in favour of respondent No.5 Society dated 10^th April, 2008. The said letter of allotment refers to names of 13 persons approved to be members of the respondent No.5 Society. When the said Writ Petition was taken up for hearing on 23^rd March, 2009, the only grievance made by the petitioners was that persons who were not eligible for membership of the respondent

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No.5 Society on account of their income being higher than the income prescribed under the Scheme have been made members of the respondent

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No.5 Society. No other grievance was made before the Division Bench of this Court as can be discerned from the order dated 23^rd March, 2009. In the context of the said grievance, the Petition came to be disposed of - as the State Authorities informed the Court that the matter will be placed before the Chief Secretary to the Government of Maharashtra, who shall pass appropriate orders after hearing the parties. The said order reads thus:

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“The challenge in the present writ petition is to the order passed by the Government dated 10th April, 2008 making allotments of plots to certain persons. According to the petitioner, they are not eligible as their income is higher than the prescribed income under the scheme. The learned Government Pleader appearing for the State submits that the order passed by the Under Secretary to the Government of Maharashtra, Revenue and Forest Department shall be placed before the Chief Secretary to the Government of Maharashtra who should hear both the parties and pass appropriate orders.

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In view of the statement made, nothing survives in this petition and the same is disposed of. The Chief Secretary may examine the matter and pass the order expeditiously. Until passing of the order by the Chief Secretary, status-quo as of today shall continued. ”

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After the said decision, the matter was considered by the Chief Secretary, who, by a detailed order dated 7^th November, 2009 dealt with the said grievance made by the petitioners. Notably, even before the Chief Secretary, the only grievance made was about the eligibility of members of respondent No.5 Society.

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Be that as it may, considering the fact that five members were already held to be ineligible, the respondent No.5 moved proposal before the State Authorities for allowing them to add new members. In the first proposal, the Society asked for permission to add four new members and in the second proposal, had asked for permission to add two more members. Both these proposals were duly considered and accepted by the State Authorities. The Collector vide communication-cum-order dated 21^st December, 2009 opined that as against the vacancy caused due to cancellation of membership of five ineligible persons, the respondent No.5 Society can admit four new persons as per their proposal dated 15^th April, 2008. He further opined that on according approval to the proposal for allowing the respondent No.5 Society to admit the said four new members, the strength of the members of the Society will rise to 12 eligible members. As regards the second proposal submitted by the respondent No.5 Society to allow the Society to admit two more members, even that was considered and accepted by the Collector, which position is stated in the communication-cum-order dated 4^th June, 2010. On the basis of the approval so granted, the respondent No.5 Society have admitted those six persons as members of the respondent No.5 Society. The orders passed by

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the Collector/State Authorities to allow the respondent No.5 Society to admit those six persons as members of the respondent No.5 Society have not been challenged in the present Petition. Those orders having attained finality and the respondent No.5 Society having admitted those six persons as eligible members of the respondent No.5 Society, the strength of members of respondent No.5 Society has now risen to 14 members. This position is indisputable. What is pertinent to mention is that in the present Petition, no grievance whatsoever is made about the eligibility of these 14 members. In other words, it is not the case of the petitioners that some of the existing members of respondent No.5 Society are ineligible and could not have been made members of the Society. It is also noticed that on the basis of order of allotment of plot, the respondent No.5 Society as well as the State Authorities have acted upon the same and possession of the plot has also been made over to the respondent No.5 Society.

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In the present Petition, however, the petitioners have raised several grounds to question the action of allotment of plot in favour of respondent No.5 Society. However, we are in agreement with the stand taken by the respondents that the petitioners cannot be permitted to agitate the grounds which were available to them in the first Writ Petition No.2185/2008,

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having not pressed those grounds while the said Writ Petition was heard and disposed of on 23^rd March, 2009; and more so because, those grounds were not agitated by the petitioners even before the Chief Secretary.

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The argument of the petitioners, however, is that the order dated 23^rd March, 2009 passed by this Court did not and ought not to be read as denuding the petitioners from agitating other grounds. It is not possible to countenance this argument. In the first place, the bare reading of order dated 23^rd March, 2009 does not indicate that the petitioners had in fact urged all grounds available to them and also sought liberty to agitate all grounds before the Chief Secretary in addition to the issue of eligibility of members of respondent No.5 Society. Secondly, from the said order, it is obvious that only one ground was agitated by the petitioners before this Court and in respect of which assurance was given by the State Authorities that the said grievance will be considered by the Chief Secretary after hearing both the parties. Admittedly, the Chief Secretary gave opportunity to all concerned and considered the only issue raised by the petitioners herein, as is evidenced from proceedings dated 7^th November, 2009. Even before the Chief Secretary, the only point agitated by the petitioners was about the eligibility of the members named in the letter of allotment dated

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10^th April, 2008 and no other issue. For all these reasons, the argument of

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the petitioners that it is open to the petitioners to argue all grounds including pertaining to the allotment of plot will have to be stated to be rejected.

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The Counsel for the petitioners would then submit that it is open to the petitioners at least to urge those grounds which have become available to the petitioners after the decision of the Chief Secretary about ineligibility of substantial number of founder members of the respondent No.5 Society. The argument proceeds that out of the original 11 founder members of the respondent No.5 Society, five members have been held to be ineligible as having income exceeding the prescribed income. As a result, the strength of original founder members got reduced to only six members and that strength was not good enough for permitting those persons to form a Cooperative Society, much less, to allot land to such group of persons intending to form a Housing Society. It is argued that after excluding five original founder members, the respondent No.5 Society was left with no other option but to take new members, as a result, it decided to admit six new members. The concomitant of these developments is that the allotment of land made on 10^th April, 2008 to group of persons,

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most of whom were ineligible, had vitiated. In that, the validity of allotment will have to be tested on the basis of the combination of persons who were the founder members of the proposed Society. The argument though attractive at the first blush, does not commend to us. Indeed, five of the original founder members of the proposed Society are different from the founder members of the present Society i.e. respondent No.5. No legal provision or Government Policy is brought to our notice which deals with this situation. Merely because some or as in this case, most of the original founder members (five out of eleven) have been found to be ineligible after enquiry, that does not mean that the remaining majority of the members of the group cannot be allowed to pursue the scheme. Further, it is nobody’s case that all or majority of the founder members of the proposed Society voluntarily transferred their interest for consideration after Letter of Intent was issued in favour of the proposed Society. The five persons who were required to be removed by respondent No.5 Society was on account of the opinion of the competent Authority that the said persons were ineligible to be made members of the respondent No.5 Society. That was not by choice but because of the direction so issued on the finding recorded against the said persons. At the same time, the State Authorities allowed the proposed Society to admit new members after

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following necessary procedure. Notably, the condition No.2 of Government Memorandum dated 10^th April, 2008 permits admission of new members in the Society. It has not been challenged. Considering the said provision and the observation of the State Authorities that the proposed Society is free to admit new members by following the procedure prescribed thereunder, the respondent No.5 decided to add six new members in two phases and submitted proposals in that behalf to the competent Authority. The competent Authority, in turn, has approved the said proposals and allowed the respondent No.5 to take the said six persons as members of the respondent No.5 Society. With the adding of those six persons as members of respondent No.5 Society, the strength of members has risen to 14 members.

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The question is: whether it was open to the respondent No.5 to add new members to replace the outgoing ineligible members. In this behalf, our attention has been invited to Annexure `B’ of Letter of Intent dated 16^th January, 2003. Clause (7) thereof provides that notwithstanding anything contained in the Bye-Laws of the Society, the Society without written permission of the Collector/Commissioner/Government will not register any new member and the Authority will have power to accept the request

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of the Society or reject the same or to grant permission on such terms and conditions which the said Authority will deem just and proper. As noticed earlier, the proposal submitted by the respondent No.5 for permitting admission of six new members was duly considered by the Appropriate Authority. Approval has also been accorded by the said Authority. Consequent to the said approval, those persons have been admitted as members of the Society. The approvals granted on 21^st February, 2009 and 3^rd June, 2010 respectively, have not been challenged. In that view of the matter, the question under consideration will have to be answered in favour of respondent No.5.

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The Counsel for the petitioners did argue that the Court should not adopt pedantic approach by limiting the petitioners to only one ground of eligibility of members, as the matter concerns distribution of largesse by the State Authorities. For the reasons already recorded, it is not possible for us to allow the petitioners to argue other grounds pertaining to the allotment of land to the respondent No.5 Society.

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Learned Counsel invited our attention to the decision of the Division Bench of our High Court in the case of Cuffe Parade Residents

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Association vs. State of Maharashtra & Ors. reported in 2011 (1) Mh.L.J. 984 , in particular, paragraph 8 thereof. This decision has no bearing on the ground relating to eligibility of the existing 14 members of the respondent No.5 Society or for that matter, that the order of allotment of plot in favour of respondent No.5 would vitiate because of the subsequent disqualification of some of the original founder members, being declared ineligible to be members of the respondent No.5 Society.

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Even the other Judgment pressed into service in the case of Sonbehari V.Nimbkar & Ors. vs. State of Maharashtra & Ors. reported in 1996(2) Mh.L.J. 361, in particular paragraphs 5 to 10, will be of no avail to the petitioners with regard to the ground of challenge under consideration about the eligibility of members of the respondent No.5 Society and the effect of some of the founder members being found to be ineligible.

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The Counsel for the petitioners then invited our attention to the order

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dated 12^th January, 2012 passed in this Petition, which reads thus:

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“1. Ms.Geeta Shastri, the learned AGP appearing for Respondent Nos.1 to 4, seeks time to file an affidavit stating whether possession

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of the land in question has been handed over to the Respondent No. 5-Medinova Regal Co-operative Housing Society Ltd. and whether reasons for allotting the land to Respondent No.5 – Medinova Regal Co-operative Housing Society Ltd. were recorded in terms of G.R.No.99 dated 9th July, 1999 and that will be a Clause 12(8) or Rule No.26 of the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971.

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Stand over to 30^th January, 2012.”

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Relying on this order, it was urged that the petitioners are free to

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raise all grounds so as to challenge the allotment of plot in favour of respondent No.5 and not limit them to only one ground of eligibility of members of respondent No.5. In the first place, this order does not recognise any right in favour of the petitioners. More over, the tentative observation was only to call upon the respondent Nos.1 to 4 to disclose the factum of compliance of clause 12(8) of GR No.99 dated 9^th July, 1999 and/or Rule 26 of the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971. Going to the Rule No.26, that is found in Part IV of the Rules of 1971 dealing with grant of land for non-agricultural purposes. The matters relating to grant of land for residential use are dealt with in sub-part B of Part IV. Rules 26 to 30 deal with those matters. Each of these rule deal with specific use. Rule 26 is specific to disposal of building sites. Whereas, Rule 27 deals with grant of land for housing schemes with which we are presently concerned. Rule 28 deals with grant of land to freedom

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fighters, members of armed forces, goldsmiths, persons with disability and Government servants. Rule 29 deals with grant of land to backward class persons and landless agricultural labourers and Rule 30 deals with grant of plots in new village sites.

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The argument of the petitioners is that the stipulation contained in Rule 26 is incorporated by reference even in Rule 27. On the other hand, we find substance in the stand of the respondents that each of these rules deal with different situations. The requirement of issuing publication and allotment of occupancy right in building sites to the highest bidder provided in Rule 26 will have no application to the procedure prescribed in Rule 27 for grant of land for housing schemes. This is the scheme of the statutory Rules of 1971. It is not the case of the petitioners that procedure prescribed in Rule 27 has not been followed in any manner. The argument of the petitioners is that Rule 27 does not open with non-obstante clause to ignore the requirement of Rule 26. As aforesaid, each of the rules 26 to 30 deal with different situation and different procedure has been prescribed therefor. If the argument of the petitioners were to be accepted, it would result in re-writing of the statutory rules, as the requirement under Rule 26 will have to be also read into in the situations governed by Rules 28 to 30

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respectively. It is not possible to accept this extreme argument of the petitioners.

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As regards the requirement of Clause 12(8) of Government Resolution dated 9^th July, 1999, even this argument is without any substance. The GR dated 9^th July, 1999 will have to be read as a whole. Clause 11 of the said Resolution deals with allotment of plot which has application to the present case. Clause 12 of the said Government Resolution applies to situation where more than two plots are available for allotment. Sub-clause (8) of Clause 12 would be applicable to that situation and not the situation envisaged in Clause 11. The petitioners have countered the claim of the State Authorities that the present case was covered by Clause 11 on the ground that there were six plots available for allotment. This position is stated in the rejoinder affidavit. As regard this contention, the same will have to be stated to be rejected because the petitioners are relying on correspondence pertaining to year 2000, which position had undergone change. We are concerned with the date of issuance of Letter of Intent. On that date, as stated in the affidavit of the respondents only one plot was available for allotment at the relevant time. There is no reason to doubt the correctness of this position stated on

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affidavit on the basis of some correspondence pertaining to anterior period. Suffice it to observe that there is no substance even in this contention. As a matter of fact, it is not open to the petitioners to raise this contention in the present Writ Petition as this ground was available to the petitioners when the first Writ petition was filed and disposed of. Be that as it may, for the reasons recorded hitherto, even this contention will have to be stated to be rejected.

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Taking overall view of the matter, therefore, the Petition deserves to

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be dismissed being devoid of merits. Ordered accordingly.

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(N.M.JAMDAR, J.)

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(A.M.KHANWILKAR, J.)

Proposed Vaibhav v. State of Maharashtra and 4 Ors.

Case brief

What is this about?

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Proposed Vaibhav v. State of Maharashtra and 4 Ors.

Case brief

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What did the court decide?

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