S. V. ASGAONKAR & ORS. versus THE MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY & ORS. on 9 April 2018

SUPREME COURT REPORTS[2018] 3 S.C.R. 410

[2018] 3 S.C.R.

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S. V. ASGAONKAR & ORS.

v.

THE MUMBAI METROPOLITAN REGION DEVELOPMENTAUTHORITY & ORS.

(Civil Appeal No. 3488 of 2018)

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APRIL 09, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Mumbai Metropolitan Region Development Authority(Disposal of Land) Regulations 1977:

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Disposal of land under the Regulations – MumbaiMetropolitan Region Development Authority passed Resolutiondated 7.6.1997 for allotting land – To the proposed Co-operativeHousing Society of its employees – The Co-operative Societyrequested the Authority to alter the terms and conditions of theDResolution – Request was not heeded to – State Government issuedResolution dated 09.07.1999 pertaining to allotment of Govt. landfor Housing Society with various terms and conditions – TheAuthority by its Resolution dated 01.09.2003 decided to allot theland to the Society as per the terms and conditions dated 09.07.1999E– The Authority allotted the land to the Society on 01.09.2003 –Letter of intent was issued on 11.12.2003 – It excluded the non-eligible members (including names of appellants) on the groundthat they were not in service on the date of Letter of Intent – Writpetition by the appellants – Dismissed by High Court holding thatthe appellants had been rightly held ineligible being not in serviceFon the date of allotment as the allotment was made on the basis offresh proposal – On appeal, held: Earlier allotment dated07.06.1997 had lapsed due to non-fulfillment of the terms andconditions – Allotment dated 01.09.2003 was a fresh allotmentpursuant to Resolution dated 09.07.1999 – Therefore, eligibilityGhas not to be seen as per Resolution dated 07.06.1997 – Theeligibility of the members has to be seen as on 11.12.2003 i.e. whenthe letter of intent was issued - The appellants have been rightlyheld ineligible.

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Dismissing the appeal, the Court

HELD: 1. From the sequence of events in the present case,it is clear that the allotment dated 01.09.2003 was a fresh allotmentof land on a higher premium that is Rs.2500/- per sqr. mtr. Earlierallotment dated 07.06.1997 had lapsed due to non-fulfilment ofthe conditions as required by Mumbai Metropolitan RegionDevelopment Authority (Disposal of Land) Regulations, 1977.Thus, the allotment dated 01.09.2003 was on the basis of thefresh proposal relying on the Government of MaharashtraResolution dated 09.07.1999. High Court is right in its conclusionthat allotment dated 01.09.2003 was on the basis of fresh proposalof the Society and same has no nexus with respect to Resolutiondated 07.06.1997. [Para 16] [419-B-C]

2. The fresh allotment was made on 01.09.2003 inpursuance of which Letter of Intent was issued on 11.12.2003,thus, the eligibility has to be seen as per condition of theGovernment Resolution dated 09.07.1999. On the strength ofResolution dated 01.09.2003 in so far as it modifies the rate ofpremium per sq.mtr., it cannot be said that the same allotmentwhich was made on 07.06.1997 has been continued on 01.09.2003and the eligibility of members has to be pegged on the date ofResolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter ofIntent. [Para 19] [420-A-B]

3. The plea that eligibility with regard to being in servicehas to be seen on the date 07.06.1997 or 05.11.1998, thus, cannotbe accepted. The Society itself has given approval vide itscommunication dated 10.05.2001 to consider the allotment to theSociety in its forthcoming meeting on 17.05.2001 on the basis ofGovernment of Maharashtra Resolution dated 09.07.1999. It isthus clear that the Society itself has requested for a freshconsideration and fresh Resolution on the basis of the eligibilitylaid down by Resolution 09.07.1999. [Para 20] [420-C-D]

4. Thus, the Society was conscious of the fact that eligibilityof members has to be seen as on 11.12.2003 that is the date onwhich Letter of Intent was issued in pursuance of allotment. TheSociety having accepted the aforesaid clause of eligibility andaccepted the offer of allotment as given by the Authority, the BC

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Aeligibility as on 11.12.2003 cannot be permitted to be questioned.[Para 21] [420-G]

5. The Authority has proposed allotment of 13,700 sq.mtrof land which is apparent from its Resolution dated 01.09.2003as well as letter dated 11.12.2003. After scrutinising the list ofBeligibility, ultimately, the allotment was made only for landadmeasuring 10,700 sq.mtr. by letter dated 09.12.2005. TheAuthority had not taken into consideration the area for non-eligiblemembers while finalising the list and due to the aforesaid reasonsthe area allotted to the Society has been reduced from 13,700sq.mtr. to 10,700 sq.mtr. There is no infirmity in the judgment ofCthe High Court. [Paras 22 and 23] [420-H; 421-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3488of 2018.

From the Judgment and Order dated 19.06.2012 of the High CourtDof Judicature at Bombay in Writ Petition No. 8224 of 2011.

Huzefa Ahmadi, Sr. Adv., Mrs. Shubhangi Tuli, Adv. for theAppellants.

Shivaji M. Jadhav, Brij Kishor Sah, Ms. Astha Deep, NicholasChaudhary, Shivaji M. Jadhav, Satyajit A. Desai, Ms. Anagha S. Desai,EMehmood Umar Faruqui, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filed againstjudgment dated 19.06.2012 of the High Court of Bombay by which WritPetition No.8224 of 2011 filed by the appellants has been dismissed.F

2. Brief facts of the case giving rise to this appeal are:

The Mumbai Metropolitan Region Development Authority hasbeen constituted under the Mumbai Metropolitan Region DevelopmentAuthority Act, 1974. The Authority has framed Regulations, namely,GMumbai Metropolitan Region Development Authority (Disposal of Land)Regulations, 1977 which were also amended vide Notification dated29.04.1997. The Authority in accordance with the Regulations isempowered to dispose of its land.

3. The appellants were employees of Mumbai MetropolitanHRegion Development Authority (hereinafter referred to as ‘Authority’).

The Resolution dated 07.06.1997 was passed by the Authority grantingpermission to allot the land of Authority situated at Chitalsar ManpadaVillage, District Thane admeasuring about 13,700 sq.mtr. to the proposedCo-operative Housing Society of the employees of the MumbaiMetropolitan Region Development Authority for the purpose ofconstruction of houses on lease hold basis for a period of 80 years. TheResolution by condition No.3 provided that Housing Society will have topay an amount at the rate of Rs.1400/- per sq. mtr. for a period of 80years as premium. Letter dated 05.11.1998 was issued to the proposedSociety informing about the Resolution dated 07.06.1997 and the termsand conditions thereof. A Co-operative Housing Society of the employeesof the Authority was registered on 25.06.1999 under the MaharashtraCo-operative Societies Act, 1960. The Society in reference to the abovewrote letters dated 23.07.1999, 19.11.1999 and further dated 09.12.1999wherein it made three requests, namely:

(a) The rate of Rs.1400/- per sq. mtr. is the rate of developedplots and, therefore, the land falling under road and compulsoryopen spaces should be made available free of cost.

(b) Instead of insisting on payment of the premium in one or twoinstalments, the Society may be permitted to pay the land cost inyearly instalments spread over 10 to 15 years.

(c) Pending the final decision, advance possession of the plot ofland be given to the Society by charging a token amount @ 2% ofthe estimated cost of the land.

4. On 09.07.1999, the Government of Maharashtra had issuedGovernment Resolution pertaining to the Govt. land to be allotted to theHousing Society. The document contained various terms and conditionsunder which Government land can be allotted to the Co-operative HousingSociety. The letter dated 09.12.1999 of the Society was not favourablyresponded by the Authority. Again letter dated 26.02.2001 was sent bythe Society to the Authority requesting to put up a proposal forconsideration of the Authority in the forthcoming meeting for allotmentof land to Society on similar terms as that of the allotment of land to theMMRDA Class-IV Employees Co-operative Housing Society. Reminderdated 27.04.2001 was again sent by the Society. The Authority vide itsletter dated 03.05.2001 wrote to the Society where the Authorityrequested the Society to go through the terms and conditions given in the AB

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AResolution dated 09.07.1999 and communicate its willingness so thatfurther action be taken in the matter. Copy of Government Resolutiondated 09.07.1999 was forwarded to the Society to communicate itswillingness as per terms and conditions given in Government Resolutiondated 09.07.1999.

B5. The Authority in its meeting dated 01.09.2003 resolved to allotthe land to the Society as per the terms and conditions dated 09.07.1999.In the Resolution it was further stated that the allotment will be made atthe rate of Rs.2500/- per sq.mtr. In the above respect, the conditionNo.(c) contained in the Resolution dated 07.06.1997 was modified. Aletter dated 11.12.2003 was issued by the Authority to the Society relatingCto grant of land area 13,700 sq.mtr. as per Resolution dated 01.09.2003.The letter further stated that the list of eligible members may be approvedby submitting proposal with necessary proofs in that respect and verifyingthe eligibility of members, the built up area will be allotted to the membersand thereafter possession of land will be given by executing lease. TheDSociety vide letter dated 10.06.2004 submitted final list of eligiblemembers as requested by the Authority as on 11.12.2003. In responseto the letter of the Society, further, letter dated 09.12.2005 was issued tothe Society informing allotment of land to the Society admeasuring 10,700sq.mtr. with total premium to be paid, along with the letter list of non-eligible members with remarks “not in the service on the date of LOI”Eincluding the names of the appellants was also furnished.

6. The appellants aggrieved by the aforesaid communication dated09.12.2005 filed Writ Petition No.8224 of 2011 praying for quashing thecommunication dated 09.12.2005 holding the appellants as non-eligible.Further, to issue mandamus, directing the respondents to include theFnames of the present appellants as persons being eligible to receivetenements/flats. Prayer to strike down condition No.8 of Annexure-A ofthe Government Resolution dated 09.07.1999 was also made. The HighCourt vide its judgment dated 19.06.2012 dismissed the writ petition.The High Court held that the proposal dated 27.04.2001 submitted byGthe Society was neither in continuation of the earlier allotment letterissued by the Authority in the year 1997 nor has any nexus in respectthereof. The allotment dated 01.09.2003 was made on the basis of freshproposal. It was one of the conditions of the Government Resolutiondated 09.07.1999 that only such employees who were in the employmenton the date of allotment of the land would be eligible to be the membersH

of the Society. The appellants on that day being not in employment ofrespondent No.1, they have not rightly been held eligible. With theaforesaid observation, the writ petition has been dismissed. Challengingthe said judgment this appeal has been filed.

7. Shri Huzefa Ahmadi, learned senior counsel appearing for theappellants submits that the appellants were fully eligible for allotment ofland. He submits that the allotment of land has to be treated as allotmentmade on 07.06.1997 on the basis of which Letter of Intent dated05.11.1998 was issued. He submits that the appellants were eligible onthe date of Resolution dated 07.06.1997 as well as on 05.11.1998 theybeing in service on the above relevant dates they could not be held to benot eligible relying on the date 11.12.2003 on which date letter was issuedon the basis of Resolution 01.09.2003. He submits that subsequentResolution dated 01.09.2003 was in continuation and in modification ofearlier Resolution dated 07.06.1997, hence, the eligibility has to be seenon the date when Resolution dated 07.06.1997 was passed. The appellantsbeing eligible on the original date when the Resolution was passed, theview taken by respondent No.1 that they are not eligible for allotmentwas erroneous.It is further submitted that the appellants being membersof the Society and eligible for allotment, they will not lose the eligibilitymerely on the ground that a subsequent Resolution dated 01.09.2003was passed. He submits that the view of the High Court that the allotmentwas made on the basis of a fresh proposal made by the Society, isincorrect. The allotment is consequent to earlier proposal whichculminated into the Resolution dated 07.06.1997.

8. Shri Shivaji M. Jadhav, learned counsel appearing for therespondent refuting the submissions made by the appellants contendsthat a fresh allotment was made on 01.09.2003 on the basis ofGovernment Resolution dated 09.07.1999 which is separate allotmenthaving no relation to the earlier Resolution dated 07.06.1997. He submitsthat the appellants being not in service of the Authority on the date whenLetter of Intent was issued i.e. 11.12.2003, they have rightly beenexcluded from the list of eligible members. He submits that the HighCourt has taken correct view of the matter.

9. We have considered the submissions of the learned counsel forthe parties and perused the records.

10. The High Court has dismissed the writ petition taking the viewthat allotment dated 01.09.2003 was passed on the fresh proposal A

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Asubmitted by the Society and the Resolution dated 01.09.2003 beingpassed on separate and distinct proposal, eligibility on 07.06.1997 is notrelevant. Whether the above reason given by the High Court fordismissing the writ petition is correct or not is the first issue which needsto be answered in this case.

B11. In pursuance of Resolution dated 07.06.1997 Letter of Intentdated 05.11.1998 was issued in which following terms were mentionedfor allotment of land:

“1. The Association of employees will form the proposed Co-operative Housing Society of the Employees within a periodCof 60 days from the date of receipt of Authority’s letter and toget the said Society registered within a period of 6 months.

2. Land will be allotted for a period of 80 years on lease holdbasis.

3. The employees of the Authority of the Housing Society willDhave to pay an amount at the rate of Rs.1400/- per sq.mtr. asper the market rate fixed by the Town Planning Department,Thane for a period of 80 years as a premium.

4. The provision of the Mumbai Metropolitan RegionDevelopment Authority (Disposal of Land) Regulations willEbe applicable to this allotment of land.”

12. The letter dated 05.11.1998 refers to Disposal of LandRegulations. At this juncture, we may notice the above Regulations whichwere amended on 29.04.1997. The amended Regulation, 1997 has beenbrought on the record by the appellants themselves through rejoinder-Faffidavit. In the Amendment Regulation Clause (iA) has been addedwhich is to the following effect:

“(iA) If half of the premium shall not be paid within onemonth or in case of Government within two months, ifpermitted by the Metropolitan Commissioner, the Agreementconcluded with the Authority shall stand determined and theEarnest Money deposited by Intending Lessee along with itstender or offer shall stand forfeited to the Authority withoutprejudice to the rights and powers of Authority to recovercompensation for loss or damage, if any suffered inconsequence of such breach of the Intending Lessee to so G

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S. V. ASGAONKAR v. THE MUMBAI METROPOLITANREGION DEVELOPMENT AUTH. [ASHOK BHUSHAN, J.]

pay half of the premium to the Authority. Likewise, if thebalance premium shall not be paid within twelve months asprovided hereto before, the Agreement concluded with theAuthority shall stand determined and the Earnest Money paidby him along with its tender or offer together with 25 percent of the premium shall be forfeited to the Authority withoutprejudice to the right and powers of the Authority to recovercompensation for loss or damage, if any, suffered inconsequence of such default of the Intending Lessee.”

13. The Disposal of Land Regulations as amended being applicable,it was required for the Society to make payment of premium within thetime prescribed by the Authority. Admittedly, the Society did not makethe payment of premium and has submitted a request for permitting tomake payment by instalments spread over 10 to 15 years. It was furtherprayed that the land falling under road and compulsory open spaces willbe made available free of cost. The Society requested for relaxation ofvarious conditions which were not granted by the Authority at any pointof time. The Resolution dated 07.06.1997 and consequent allotment dated05.11.1998 did not fructify into allotment of land and lapsed as perDisposal of Land Regulations as amended in 1997, Regulation (iA). Inthe meantime the Government of Maharashtra has issued Resolutiondated 09.07.1999 providing various terms and conditions for allotment.

In the present case, we are concerned with one of the conditions whichis condition No.8 of Annexure-A. Annexure-A is “Eligibility for approvalto the members of the Co-operative Housing Societies who intend toobtain Government land by paying concessional occupancy charges/lease rent”. Condition No.8 which is a part of Annexure-A to theResolution is to the following effect:

“8. It is a pre requisite that the Government Employee will bein the service on the date on which the indent letter will beissued to the Co-operative Housing Society, and only thensuch employee will be treated as eligible for membership.”

14. The Society itself has made various applications to theAuthority after Resolution dated 07.06.1997. One of the applicationsdated 09.12.1999 is Annexure P-5 where the allotment on certain modifiedterms and conditions was prayed for, which was never granted. Againan application dated 26.02.2001 was given by the Society where it hasreferred to the Resolution made on 07.06.1997 by which proposal for AB

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Aallotment to MMRDA Employees Co-operative Housing Society waspassed. Prayer was made in the letter dated 26.02.2001 to put up aproposal for consideration of the Authority for allotment of land to Society.

15. Again letter dated 27.04.2001 was submitted by the Society tothe Authority where it was requested to put up a proposal for considerationBof the Authority in its forthcoming meeting in accordance withGovernment of Maharashtra Resolution dated 09.07.1999. It is useful to quote the prayer made in paragraph 4 of the aforesaid letter:

“4. You are now requested to put up a proposal for theconsideration of the Authority in its forthcoming meeting forCthe allotment of earmarked MMRDA land at ChitalsarManpada to the MMRDA Employees Co-operative HousingSociety, Chitalsar Manpuda,Thane in accordance with theGovernment of Maharashtra Resolution No. LCA-1095/P.K.37/95/J-1 (together with its Annexures) dated 9[th] July, 1999as was approved by the Authority for the allotment of land toDthe MMRDA Class-IV Employees Co-operative HousingSociety at Panchpakhadi. We are in a readiness to make thenecessary payment for taking the possession of the land of13,700 sq.mtr. area on the terms prescribed in the abovereferred Government of Maharashtra Resolution.E Thanking you, Yours faithfully, Sd/- F

(A.V. Ghangurde)Chairman”

16. In response to letter dated 27.04.2001, the Authority wrote aletter dated 03.05.2001 to the Society forwarding the Resolution dated09.07.1999 and requesting the Society to go through the terms andGconditions and communicate Society’s willingness so that further actionbe taken. The Society vide letter dated 10.05.2001 communicated itswillingness to abide by the Resolution dated 09.07.1999 and thereafterResolution dated 01.09.2003 was passed for allotment of land. Inpursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was H

issued by the Authority to the Society. The Authority vide letter dated11.12.2003 informed that lease premium may be charged at Rs.2500/-per sq.mtr. instead of Rs.1400/- per sq. mtr. as was earlier approved.From the aforesaid sequence of events, it is clear that the allotmentdated 01.09.2003 was a fresh allotment of land on a higher premium thatis Rs.2500/- per sqr. mtr. Earlier allotment dated 07.06.1997 had lapseddue to non-fulfilment of the conditions as required by the Disposal ofLand Regulations, 1977 as noted above. Thus, the allotment dated01.09.2003 was on the basis of the fresh proposal relying on theGovernment of Maharashtra Resolution dated 09.07.1999. We, thus, areof the view that the High Court is right in its conclusion that allotmentdated 01.09.2003 was on the basis of fresh proposal of the Society andsame has no nexus with respect to Resolution dated 07.06.1997.

17. Learned counsel for the appellants relying on Resolution dated01.09.2003 submits that the Resolution dated 01.09.2003 clearly mentionsthat it modifies condition No.3 contained in earlier Resolution dated07.06.1997 which clearly means that Resolution dated 01.09.2003 is incontinuation of earlier Resolution, hence, the eligibility of the membershave to be seen on 07.06.1997 or 05.11.1998. He relies on the followingportion of Resolution dated 01.09.2003:

“RESOLVED THAT, in exercise of power conferred under Sub-Section 2 of Section 3 of the Mumbai Metropolitan RegionDevelopment Authority Act, 1974 and making modificationin Condition No.”c” contained in its resolution dated 727passed in the 88[th] meeting held on 7.6.1997 and as proposedin paragraph 6 of the item note, the authority allots the landsituated at Chitalhar, Manpada, Thane to the MMRDAemployees cooperative housing society on the following termsand conditions.”

18. It is true that Resolution dated 01.09.2003 modifies conditionNo.(c) as was contained in Resolution 07.06.1997. Condition No.(c)was with regard to amount of premium per sq.mtr. which was Rs.1400/-. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/- per sq. mtr. The modification of above condition has been specificallymentioned since earlier the Authority has offered the plot on Rs.1400/-per sq. mtr. which was subsequently made as Rs.2500/- per sq.mtr. Asnoted above the Resolution dated 07.06.1997 itself was not honoured bythe Society and it lapsed as per statutory Regulations noted above.

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A19. The fresh allotment was made on 01.09.2003 in pursuance ofwhich Letter of Intent was issued on 11.12.2003, thus, the eligibility hasto be seen as per condition of Annexure-A of the Government Resolutiondated 09.07.1999. On the strength of Resolution dated 01.09.2003 in sofar as it modifies the rate of premium per sq.mtr., it cannot be said thatthe same allotment which was made on 07.06.1997 has been continuedBon 01.09.2003 and the eligibility of members has to be pegged on thedate of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter ofIntent. We, thus, do not find any substance in the above submission ofthe learned counsel of the appellants.

20. The submission of the learned counsel for the appellants thatCeligibility with regard to being in service has to be seen on the date07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itselfhas given approval vide its communication dated 10.05.2001 to considerthe allotment to the Society in its forthcoming meeting on 17.05.2001 onthe basis of Government of Maharashtra Resolution dated 09.07.1999.

DIt is thus clear that the Society itself has requested for a freshconsideration and fresh Resolution on the basis of the eligibility laid downby Resolution 09.07.1999. After after issuance of allotment letter dated11.12.2003 by which list of eligible members was asked for, in responseto which Society has sent its communication dated 10.06.2004 statingthe following:E

“...The final list of members eligible as on 11.12.2003 byscrutiny of said list as per terms and conditions under theGovernment Resolution through the Land Branch will beaccepted to the Society. Also, the waiting list of total 33members has been present till date through the Society and itFwill be sent to the Land Branch at the necessary time.”

21. Thus, the Society was conscious of the fact that eligibility ofmembers has to be seen as on 11.12.2003 that is the date on whichLetter of Intent was issued in pursuance of allotment. The Society havingaccepted the aforesaid clause of eligibility and accepted the offer ofGallotment as given by the Authority, we fail to see that how the eligibilityas on 11.12.2003 be permitted to be questioned.

22. There is one more fact which needs to be noted. The Authorityhas proposed allotment of 13,700 sq.mtr of land which is apparent fromits Resolution dated 01.09.2003 as well as letter dated 11.12.2003. After H

S. V. ASGAONKAR v. THE MUMBAI METROPOLITANREGION DEVELOPMENT AUTH. [ASHOK BHUSHAN, J.]

scrutinising the list of eligibility, ultimately, the allotment was made onlyfor land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. TheAuthority had not taken into consideration the area for non-eligiblemembers while finalising the list and due to the aforesaid reasons thearea allotted to the Society has been reduced from 13,700 sq.mtr. To10,700 sq.mtr..

23. Taking into consideration the aforesaid facts and circumstances,we are of the view that no relief can be granted to the appellants. TheHigh Court did not commit any error in dismissing the writ petition. Wedo not find any infirmity in the judgment of the High Court. The appeal isdismissed.

Kalpana K. Tripathy

Appeal dismissed.

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