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TMI Blog2007 (2) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 03.06.2004, approved the allotment in favour of the appellant considering the fact that there were no multiplex in the area and the earlier effort of CIDCO to advertise for such plots had met with no response. CIDCO issued allotment letter in favour of the appellant asking the appellant to pay Rs. 1,80,00,000/- lacs being the balance price of the plot. The appellant made two separate payments of Rs. 90 lacs each towards the balance price of the plot on 16.08.2004 and 19.08.2004. The appellant paid a sum of Rs. 20,00,600/- being the other charges demanded by the respondent. The appellant was asked to pay a further sum of Rs. 65,096/- which the appellant paid immediately. CIDCO unilaterally decided to ask the appellants to pay a further sum of Rs. 20 lacs by enhancing the rate at which the plot was to be allotted to the appellant from Rs. 2500/- per sq. metre as demanded in the allotment letter to Rs. 2,750/- per sq. metre because the plot of the appellant was on a 24 metre road. The appellant on 17.11.2004 paid a further payment of Rs. 20 lacs along with Rs. 2,96,078/- plus Rs. 4,957/- being the additional cost and the other charges. On 14.01.2005, the appellant paid a further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was by tender or without tender, whether the pricing policy was adopted or not etc. Further information was sought on 13.04.2006 regarding allotment of social facility plots during April, 2003 to March, 2005. CIDCO, vide their letter dated 13.04.2006, has informed the appellant that during April, 2003 to March, 2005, 27 plots were allotted for the opening of schools, 9 plots were allotted for opening of colleges, 5 plots were allotted to charitable and religious institutions, 9 plots were allotted to cultural organizations, 2 plots was allotted for sports and 13 plots were allotted for social welfare. In all 65 plots were allotted under the category of social facility. CIDCO has also confirmed that all the allotments had been made without issuance of tender and that all the abovementioned allotments have been made as per Land Pricing and Land Disposal Policy of CIDCO i.e. the same as was done in the case of the appellant. None of these allotments have been cancelled by CIDCO till date. In this view of the matter, it is clear that the entire basis for seeking to cancel the appellant's plots is illegal and the same cannot stand the test of judicial scrutiny. On 20.04.2006, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to enable the Board to consider the allotment in favour of the appellant. The appellant accordingly made the EMD on 29.06.2004. On 29.07.2004, CIDCO approved the allotment of plot No.2, Sector 11, Airoli in favour of the appellant as the Board had not got any response for similar plots in public tender. The total lease premium in respect of the plot was Rs. 2,07,70,000/- and the appellants were directed to pay the balance amount of Rs. 1,86,93,000/- by 14.09.2004. The allotment was made in terms of the New Bombay Land Disposal Rules, 1975 and also in terms of the Land Pricing and Disposal Policy of CIDCO under which the land could be allotted to any person by considering his individual application at the reserved price fixed by CIDCO. On 16.08.2004 and 13.09.2004, the appellants paid Rs. 1,86,93,000/- as demanded. On 15.10.2004, CIDCO after inspection of the plot issued a corrigendum asking the appellants to pay a further sum of Rs. 53,236/- being the additional amount due to the marginal increase in the demarcation of the plot. The appellant paid the balance amount of Rs. 53,236/- thus making a total payment of Rs. 2,08,22,420/- being the full and final payment in respect of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, learned senior counsel for the appellant and Mr. Altaf Ahmed, learned senior counsel for the contesting respondent. We have carefully perused the entire pleadings, documents and annexures filed along with the special leave petitions. Mr. Vikas Singh, learned senior counsel took us through the various pleadings and also other relevant records. Mr. Vikas Singh made the following submissions: 1. Maintainability of the writ petition: As regards non-maintainability of the writ petition, the appellant relied upon the following decisions of this Court wherein this Court has held that the writ petitions can be held to be maintainable under certain circumstances: i. Smt. Gunwant Kaur & Ors. vs. Municipal Committee Bhatinda & Ors [1969 (3) SCC 769]. ii. Century Spinning & Manufacturing Company Ltd & Another vs. The Ulhasnagar Municipal Council & Another (1970 (1) SCC 582). iii. Dr. Bal Krishna Agarwal vs. State of U.P. & Ors. (1995 (1) SCC 614) iv. Whirlpool Corporation vs. Registrar of Trademarks, Mumbai & Ors. (1998 (8) SCC 1) v. Harbanslal Sahnia & Another vs. Indian Oil Ltd. & Ors. (2003 (2) SCC 107) vi. Corporation of the City of Bangalore vs. Bangalore Stock Exchange (2003 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to him, there is mention of a report submitted by one Dr. D.K. Shankaran, the then Additional Chief Secretary of the Government of Maharashtra. It is submitted that the said report was made behind the back of the appellant and without his knowledge and that the said report is an ex-parte report and no benefit can be taken of the same by CIDCO as the report is based upon conjectures and surmises and there is no scientific basis of the findings in the report. He would also further submit that the CIDCO in the final termination order dated 16.12.2005 did not rightly make a mention of Sankaran Report because the same could not have been relied upon as having been made without any legal sanctity. He invited our attention to the recent pronouncement of this Court in the case of Amey Cooperative Housing Society Ltd. vs. Public Concern for Governance Trust, 2007(2) SCALE 405. In that case, the Advocate General of Maharashtra submitted regarding the status of the Shankaran Committee report that it was treated by the State Government to be a preliminary report only and not conclusive and that in the final cancellation order the only ground made was that the allotment had been made withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal Policy has in all 12 sub-headings like no.1 is residential, no.2 is commercial and no.12 is public utility. In the said policy, making allotment for multiplexes/auditorium/theatre complex to be developed in the private sector is in clause 12 of the Chapter relating to allotment for public utility. CIDCO in their affidavit have made wrong statement on oath that the allotment is commercial because clearly under the Land Pricing and Land Disposal Policy such allotment is not commercial but is allotment for public utility. CIDCO to that extent has committed perjury and are liable as such for the same. Thus, from a conjoint reading of the Regulation and the Land Pricing and Land Disposal Policy of CIDCO, it is clear that the allotment of land could be done by considering individual application i.e. without inviting tenders. From the Land Pricing and Land Disposal Policy it is also clear that disposal of land under different category are to be considered differently. In the case of allotment of land for auditorium/multiplex, theatre complex to be developed in the private sector, it is prescribed that the land is to be allotted at reserved price and the method of disposal is on reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Regulations of the Corporation empower the corporation to make allotment without inviting tenders then such allotment was clearly valid and no challenge to the same would be entertained on the ground that other persons could have been interested in applying for the allotment and that they had not been given opportunity to apply for the same. Clearly in terms of the two judgments referred to above, it could not be said that allotment made without issuance of tenders per se can be said to be bad or being opposed to public policy. Learned senior counsel for the appellants further submitted that the impugned order violates the fundamental rights as guaranteed under Article 14 of the Constitution because in the similar allotments wherein also Dr. D.K. Shankaran had reported that the same had been done without inviting tenders and CIDCO has suffered huge losses running into crores, CIDCO has taken no steps to cancel those allotments and in fact construction on the said plots are continuing without any objection from CIDCO. Learned counsel for the appellant submitted that the appellant is clearly entitled to the same treatment i.e. of being allowed to take the advantage of allotmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held in the case of Corporation of the City of Bangalore's case (supra) to the effect that CIDCO has no such right to revoke the concluded agreement and hence any action taken by CIDCO contrary to the express terms of the agreement is wholly without jurisdiction. CIDCO cannot take recourse of Section 23 of the Contract Act alleging that the agreement is opposed to public policy because clearly such right is reserved only to the Courts and it is submitted that authorities themselves cannot take recourse to the said section in order to annul a concluded agreement. As regards the allegations made against Shri V.M. Lal, the then MD, CIDCO questioning the allotment in the counter affidavit, it is submitted that firstly the entire basis of such allegation does not survive because this Court has already expunged all the remarks against Shri V.M. Lal in regard to similar allotment made without issuance of tender during his tenure and the Anti Corruption Bureau of the State of Maharashtra as well as the State of Maharashtra in disciplinary proceedings initiated against Shri V.M. Lal as ge has also been given clean chit with regard to all allotments made by CIDCO during his tenure as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 sq. mtrs is an ideal location for multiplex. iii. This building will be visible from highway and will add to the image of the city. iv. Adjoining plot no.1 of sector 1 attached to railway station admeasuring 5600 m2 (not demanded yet) is earmarked for city mall." It is also brought to our notice that in the Board's deliberation it was noted by the then Chairman Shri Javed Khan that promoting a Multiplex near railway station shall be adding value to the development of that node and was needed in view of shortage of entertainment facility in Navi Mumbai. As regards the suggestion of irregularity in the allotment in favour of the appellant is concerned it is submitted that the Principal Secretary, Urban Development, Government of Maharashtra was present in the Board meeting in which decision was taken to allot the subject plot in favour of the appellant and the subsequent CMD also in his letter dated 09.03.2005 had justified the allotment by saying that there was no comparable data to fault the allotment on the ground that CIDCO has suffered losses in the same. It is also pertinent to point out that Dr. Shankaran was also a member of the Board of Directors of CIDCO in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that this view is also affirmed in decisions in National Highways Authority of India vs. Ganga Enterprises & anr. reported in 2003 (7) SCC 410 and Rajureshwar Associates vs. State of Maharashtra & Ors. , 2004 (6) SCC 362. Mr. Altaf Ahmed further submitted that in the present case the allotment was cancelled having regard to Section 23 of the Indian Contract Act as the subject allotment was illegal and that as regards the merits of rival contentions a detailed affidavit was filed before the High Court denying the contents of the special leave petition and its accompaniments and list of dates which are inconsistent with and contrary to what is stated hereinabove and as if the same has been expressly traversed and denied. He would, therefore, submit that the appeal is devoid of merits and hence deserves to be dismissed at the threshold in the interest of justice and prayed accordingly. It was further submitted that in case this Court were to remit the matter back to the High Court for fresh disposal, the same writ petition be restored to its original No. along with the pleadings which were already complete with a direction to the High Court to decide the same in a time-bound man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IDCO in the show cause notice has taken the ground of non-issuance of tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to the non-issuance of tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions. Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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