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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 ..... asked the appellants to pay an EMD of ₹ 20 lacs being 10% of the tentative price of the plot in order to consider the application of the appellant. The appellant deposited the said amount of EMD immediately. CIDCO, vide its Board Resolution dated 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 ₹ 1,80,00,000/- lacs being the balance price of the plot. The appellant made two separate payments of ₹ 90 lacs each towards the balance price of the plot on 16.08.2004 and 19.08.2004. The appellant paid a sum of ₹ 20,00,600/- being the other charges demanded by the respondent. The appellant was asked to pay a further sum of ₹ 65,096/- which the appellant paid immediately. CIDCO unilaterally decided to ask the appellants to pay a further sum of ₹ 20 lacs by enhancing the rate at which the plot was to be allotted to the appellant from ₹ 2500/- per sq. metre as demanded in the allotment letter to ₹ 2,750/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation from the CIDCO Authorities regarding methodology for allotment of plots for service industries, warehousing, multiplexes, etc. Again on 04.04.2006, the appellant had sought for further information in respect of 15 cases similar to the case of the appellants regarding whether disposal 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 don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to the said application, requested the appellant to submit a detailed project defining all built up activities. The appellant submitted the detailed project report. CIDCO, by their letter of intent, requested the appellant to pay an EMD of ₹ 20,77,000 within 15 days from the receipt of the letter 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 ₹ 2,07,70,000/- and the appellants were directed to pay the balance amount of ₹ 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 ₹ 1,86,93,000/- as demanded. On 15.10.2004, CIDCO after inspection of the plot is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was illegal and that as regards the merits of rival contentions, a detailed affidavit was filed before the High Court and for the sake of brevity a copy of the same was annexed as Annexure-R1. The appellant also filed a rejoinder to the counter affidavit filed on behalf of respondent No.1. We heard the arguments of Mr. Vikas 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t calling for tender which are available at pages 177 and 187 of the SLP paper book in SLP No. 11085 of 2006. Thus it is submitted that the High Court committed grave error in rejecting the petition filed by the appellant as not maintainable. Learned senior counsel made certain submissions in regard to the show cause notice where according 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of CIDCO, CIDCO has been authorized to dispose of various types of land as per the method of disposal prescribed under column 3 of the said policy. The method of disposal has been prescribed broadly in the following manner: 1. By Public Advertisement at fixed rate 2. By tender 3. on request at fixed rate The Land Pricing and Land Disposal 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 La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Printers (Mysore) Ltd. vs. M.A. Rasheed Ors. , 2004 (4) SCC 460 and Chairman MD.BPL. Ltd. vs. S.P. Gururaja Ors., 2003 (8) SCC 567 wherein also the allotment had been challenged on the ground that the same had been made without inviting tenders and the High Court had cancelled the allotment and this Court while reversing the order has held that if 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not even given the copy of Dr. D.K. Shankaran report for effective reply of show cause notice. The impugned order is also liable to be quashed as the same is wholly without jurisdiction. Once a concluded contract has been entered into between the parties, the parties cannot be permitted to resile from the same contrary to the express terms of the concluded contract. It has been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act. Our attention was also drawn to the noting in the file while considering the case of the appellant and before making the allotment that i. There is no cinema/multiplex facility available today for the residents of CBD Belapur, Kharghar and Kalamboli residents. ii. From accessibility and land use compatibility point of view, plot no.1, Sector 2, Kharghar admeasuring about 8000 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad anr. vs. Kurien E. Kelathil Ors., reported in AIR 2000 SC 2573 has categorically held that merely because a Corporation/Electricity Board can be termed as a limb or instrumentality of the Government and hence State within the meaning of Article 12 of the Constitution of India nonetheless in the matter of contract jurisdiction under article 226 of the Constitution of India cannot be invoked 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more people wanting to live in the area in view of the various amenities being provided in the area. Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants. It is also pertinent to mention that CIDCO 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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