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TMI Blog2002 (9) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... ewerage, street lights and landscaping etc. (b) To build as many houses and community centers, shopping centers, parks, play grounds, bus stations, etc. to meet the day to day needs of the population, as well as for a fast take up of new growth areas and also to make available and develop the plots at affordable prices, so as to construct residential dwellings for self occupation. (c) To promote growth of commercial, wholesale market activities, warehousing, transport, office and other activities in order to evolve expeditiously a sound economic base for self sustained growth and achieve, at the same time, a process of relieving congestion in the cities like Bombay as well as the fast developing cities in other parts of Maharashtra and (d) While doing so, to maintain ecological balance and ensure that environmental degradation is not allowed. The CIDCO was declared as special planning authority for Aurangabad notified area under Sub-section 3(A) of Section 113 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the Act) for residential, commercial and industrial purposes. The state of Mahrashtra acquired huge land for CIDCO in villages Mukundwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed further with acceptance of the tenders in respect of the bulk sale. After the initial application that was filed, several other applications were filed, challenging the alleged disposal of land made by CIDCO and ultimately the High Court by the impugned Judgment, came to the conclusion that the action of CIDCO in the matter of disposal of land by bulk plots is against the public interest and the so-called allotment of land in Sectors N-2 and N-4, consisting of Survey Numbers 23, 24 and 70 is null and void, as the draft development plan has not been approved by the State Government, as required under Section 115 of the Maharashtra Regional and Town Planning Act. Accordingly, those allotments were cancelled. The High Court also held that the proclamations issued for disposal of land are illegal and would stand cancelled. Individual allotments made in favour of respondent Nos. 5, 8, 9, 10 and 15 also were annulled and the Administrator was directed to take immediate possession of the respective lots, including the structure and buildings standing thereon. It was further ordered that as and when the Government of Maharashtra approves the Draft Development Plan, then the land ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the land in question is for providing opportunity to the citizens to have their houses built on the land and the action of CIDCO is required to be examined from that stand point. It is urged that no personal interest of any authority of the CIDCO having been found to have been augmented on account of the allotment of bulk land the Court was not justified in exercising its discretionary jurisdiction and interfering with the allotment made. It is urged that CIDCO being a Special Planning Authority constituted under Section 40 of the Maharashtra Regional Town Planning Act is not required to be covered by the provisions of the Act relating to preparation of Draft Development Plan and the conclusion of the High Court on that score is thus vitiated. It is also contended that the Regulations in question having been framed by CIDCO in exercise of power conferred under Section 159(l)(a) of the Maharashtra Regional Town Planning Act, which is known as the New Town Disposal Regulation, 1992, and the disposal of lands impugned in the Writ Petition having been made in accordance with the said prescribed procedure under the Regulation, the High Court should not have interfered with the same, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Chief Administrator have allotted plots to themselves and their family members which on the face of it is illegal and such an allotment could not have sustained the scrutiny of any Court of law. According to the learned counsel the price fixed for allotment was even lower than the base price of ₹ 1,500 per sq. metre and this could not have been done without the board's agreement which was required under the CIDCO publication title New Aurangabad Guidelines . The counsel urged that there has been allotment of land at a price of ₹ 1,300 per sq. metre which was done without re-advertising or tendering. So far as procedural irregularities are concerned, the counsel urged that the applications were entertained without any formal application and even without any payment of earnest money and allotments were made to the parties even who never had made any application for the same. It was also vehemently urged that the very method of sale of bulk plot caused serious financial loss to the CIDCO and no court should permit such sale at the cost of public exchequer. It was also urged that the proposal of CIDCO to the State Government for sale of bulk plots to the builder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f developing the township further in accordance with the development plan which was yet to be sanctioned by the State Government and thought that it would be profitable to hold bulk sales of remaining land and earn a lot of money therefrom and thereby enrich itself. We can understand an individual being overpowered by greed; however, here what the High Court notices is greed of an institution-an institution, the primary object whereof is not solely to earn money but to serve the people through activities in tune with the avowed objects with which it has been found and as set out in the earlier part of this judgment. However, as the several findings arrived at by the High Court and noticed shortly hereinafter would show the greed was implanted into the institution by builders who had an eye over the left-over developable land so as to grab the same by prevailing over CIDCO and manipulate allotment to their own commercial advantage. Lest we should digress and drift away, we revert back to notice yet another event. In the year 1998, Section 80-1B of the Indian Income Tax Act, 1961 was amended by Parliament whereby payment of income tax was exempted on income derived from the housing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile hearing a public interest litigation the constitutional court acts as the sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct - well defined by series of judicial pronouncements. The Court is obliged to see while scrutinising the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office hold a trust for public good and therefore his actions should all be above board. Whatever may have been the grievance raised in the writ petition filed by the original writ petitioner, vide its order dated 28.4.2000 the High Court framed the following four questions laying down the scope of hearing before it:- (a) Whether C1DCO should be allowed to resort to bulk land sale as a normal course of its activities? (b) Whether such an action by CIDCO is permissible in the public interest vis-a-vis its objectives? (c) Whether the bulk land sale transactions made in the recent past and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings before us. (b) Mrs. Padma representing Tapadia Construction Pvt. Ltd., respondent No.9, (hereafter referred to simply as 'Tapadia', for short). (c) Aurangabad Ajanta Bahu Udeshiya Seva Sanstha, CIDCO, Aurangabad, respondent No.5, Suchita Housing Society, Aurangabad, respondent No.6 and Aurangabad Holiday Resort Pvt. Ltd., respondent No. 15. The allotments to group 'b' and group 'c' above though made during the same period of time and suffering from vitiating factors of more or less equal magnitude yet have some essential difference which will have a bearing on constructing the ultimate relief to be given and therefore we have carved out these groups. The High Court has also, during the course of its judgment, set out the facts referable to these two groups with some margin of differentiation. So far as the facts, and the findings flowing from the documents, are concerned, for the purpose of this judgment, it would suffice if we extract and reproduce the gist thereof from the detailed and well cast judgment of the High Court inasmuch as after affording full-dressed hearing to the learned counsel for the parties we are satisfied that so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.2.1999 and put up on 25.2.1999 recommending cancellation of all the tenders. Of their own, the tenderers started negotiations and revision of their offers. On 20.4.1999, Shri Ajmera made a representation revising his offer of ₹ 1300 per sq. meter for plot A, This revised offer was endorsed by the Administrator on 28.4.1999 recommending allotment of plots A and D, having an area of 4182 sq. meters each to Shri Ajmera. The Joint Managing Director, having held a discussion with the Administrator and the Chief Economist of CIDCO, opined in favour of counter offers of the base rate for these plots which was ₹ 1500 per sq. meter being mooted to the tenderers. On 29.4.1999, the counter offers were sent to all the three tenderers calling for their response within three days. On 13.5.1999, Tapadia responded by revising its offer to ₹ 1300 per sq. meter for two or four plots whereas Ajmera revised his offer to ₹ 1301 per sq. meter for four plots, viz. A, B, C and D. On 13.5.1999, CIDCO issued tender notices for sale of bulk plots from survey no. 70 of Mukundwadi and survey No.23 and 24 of Garkheda (south). Plots Nos. A, B, C and D were excluded from the tender n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistrator was also present and CIDCO could proceed further 'as per the instructions given by the Joint Managing Director' during the course of discussion on 9.6.1999 without placing on record what those instructions were. On the next day the same authority directed plots Nos. A and B to be allotted to Ajmera and plots Nos. C and D to be allotted to Tapadia. This was approved by the Joint Managing Director on 24.6.1999. Ajmera's offer in respect of plots No. E and F was rejected. Another striking feature of the allotment is that allotment letters to Holiday Resorts in respect of plots No. A and B and to Tapadia in respect of plots No. C and D were issued by the Administrator, C1DCO on 21.6.1999 although the approval of Joint Managing Director is dated 24.6.1999 and the approval of the Board of Directors, which was insisted on by the Chief Economist in his note dated 31.5.1999, was never obtained. While plots No. A, B, C and D were so allotted, the tender notice in respect of plots other than these issued on 13.5.1999 was cancelled in view of the pendency of the writ petition in the High Court in view of the note put up by the Administrator, CIDCO (on 16.9.1999). Tapad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 17.8.1999 for allotment of bulk land for developing a sports club and maintenance of play field. This vague expression employed by Sewa Sanstha outwardly sound to be very benevolent as if the sports club and a play field are meant for serving the inhabitants of New Aurangabad. However, the Sewa Sanstha came to be registered as a public trust on 6.2.1999 under the Bombay Public Trust Act, 1950. The list of trustees too is revealing. Shri Sambhaji Pawar, respondent No. 12, who was already holding the office of Director in CIDCO, is one of the trustees in the above said trust and the other trustees are his wife, his son, his daughters, his aunt, his niece and so on. The High Court has found it as 'abundantly clear' that it was a trust managed by Shri Sambhaji Pawar, his family members and close relations. Suchita Housing Society, respondent No.6, has as its members most of whom are either the family members of Shri Sambhaji Pawar, the respondent No. 12 or his close relations/friends and some senior government officers. Beyond this we need not dwell further in view of the High Court having noticed that the allotment of land by CIDCO to this society was at a later stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as so kept by employing choicest expression and is not supported by any resolution or decision of CIDCO. The allotment as per recitals of the lease deed purports to have been made pursuant to the resolution dated 22.12.1998. The allotment of land made to Sewa Sanstha, the respondent No.5 suffers from several serious infirmities. An area of about 4 acres has been parted in favour of respondent No.5 without affording other competitors or rivals an opportunity of participating in the bid at the price at which it has been parted with. The revised development plan of CIDCO as regards this allotment was pending with the Government of Maharashtra for approval as required by Section 115 of the Act and was not cleared by the State Government. The parting with has been without any transparency and almost in secrecy. A marginal percentage of a huge chunk of land was kept reserved in the development plan for development in accordance with requirements of future expansion obviously which should be guided by the paramount consideration of catering to the needs of those who have already become a part and parcel of development and expansion till then. That is why the law insists on a develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Incorporation and Memorandum of Association to CIDCO projecting as if this was the private limited company in the mind of Ajmera when he had submitted his tender in February 1999. Even in the affidavit filed in the High Court, as late as on .30.8.2000, Ajmera, impleaded as respondent No. 10 in the writ petition, does not indicate how and in what manner he was connected or associated with Holiday Resorts, a private limited company. The High Court has noted it as a 'mystery' the failure on the part of the record of CIDCO to reveal as to how and under what circumstances on 21.6.1999 the Administrator, CIDCO issued letter of allotment in favour of Aurangabad Holiday Resorts Pvt. Ltd. touching plots No. A and B though Ajmera had not at all till then revealed the name and particulars of M/s. Ajmera Holiday Resorts Pvt. Ltd. In the opinion of the High Court the issuance of letter of allotment in the name of such company was most uncalled for. There was some ghost-play indeed inasmuch as the learned Judges of the High Court meticulously compared the signatures of Ajmera appearing at various places in the numerous letters addressed to CIDCO purportedly by him and found such v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gabad. The development plans were finalized and approved by the State Government whereon CIDCO acted and marginal land was left out of decision by the State Government at that point of time and it can safely be' assumed that it was a conscious decision to plan the development of such left over land at a later and appropriate point of time by which point of time the other land stands utilized so as to keep in view the till then development over major part of the acquired land, its trend and needs and the march of times. The State Government could have approved a development plan for the land left out from planning earlier and earmarked only as 'developable land' so as to cater to the needs of the township which had come into existence by that time guided by the requirements of healthy human living. By no stretch of imagination it can be contemplated that it was or could have been intended either at the time of acquisition or at the time of sanction of development plans by the State Government that at some point of time in future the developable land would be available to be disposed of by bulk sale and that too in favour of professional builders. That is why a condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le dealing with this aspect of the matter has assigned several convincing reasons why the very concept of sale of bulk land cannot sail with CIDCO, either in law of in propriety. Assuming that an extraordinary situation-which there was none- had warranted a policy decision for bulk sale the decision should have been of the Board and accompanied by reasons. In the present case, if only the proposal would have been placed before the Board of CIDCO in all probability it would have been discarded. It is pertinent to note that good number of officials, through whose hands the proposal passed while travelling up, were not agreeable to and had their own reservations on the proposal of such bulk sale. What prevailed with one or two of those placed at the higher rung of bureaucratic ladder in permitting such bulk sale in hot haste defies explanation for the simple reason that in the decisions available on the note sheets of the record looked into by the High Court no reasons have been assigned in favour of endorsing the proposal for bulk land sale. We are not prepared to accept even for a moment that there was no demand of land. Even if the development plan for the developable land was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land was a felt-necessity it should have satisfied at least two conditions: (i) a well-considered decision at the highest level; and (ii) a sale by public auction or by tenders after giving a more wide publicity than what was done so as to attract a larger number of bidders. It was contended that Shri Sambhaji Pawar, the respondent no. 12 was not a party to any of the decisions whereby the land was allotted to Sewa Sanstha, Suchita Housing Society or Holiday Resorts (respondent nos. 5, 6 and 15 respectively) and therefore the allotment is not vulnerable on this count. We are not impressed. Shri Sambhaji Pawar was holding a public office and that too in CIDCO. If he directly or indirectly proposed to deal in property and in the course of such business activity to encounter with CIDCO then he should have not accepted the directorship of CIDCO. Else if he was motivated with the idea of serving the society by being a Director of CIDCO he should have seen that he cautiously kept away from directly or indirectly dealing with CIDCO. The least that was expected of him was to have informed CIDCO very specifically that the respondent nos. 5, 6 and 15 consisted of his family members and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the contesting respondents herein persuaded the High Court in modifying its order by demonstrating a pressing necessity in that regard. Obviously any change of status quo brought about during the pendency of the proceedings is at the risk of beneficiaries thereof. Record of SLP(C) No. 19687/2000 filed by Tapadia does not show that Tapadia had anyone inside CIDCO exerting his or her influence from within to oblige Tapadia as it has been in the case of Shri Sambhaji Pawar and his cloaked duplicates. By 16.10.2000, the date on which Tapadia filed her affidavit in the High Court, five buildings having 72 tenants had come up as 'complete' and rest of the construction was in 'full swing' with an investment to the tune of over rupees three crores on the project for which she had taken a loan of about rupees one crore from the bank and rest from other sources. Vide para 30, the High Court has noted the contention of Tapadia, the respondent No.9, that it had already constructed multi-storeyed building consisting of residential apartments and those apartments were ready for allotment; in all 132 tenements had been constructed on plot No. C and D. Several persons had bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15 are vitiated and hence not binding on CIDCO; 2. In spite of holding the sale in favour of respondent No.9 vitiated, in view of subsequent events, the situation having become irreversible on account of construction of vast magnitude having come up and third party interests having been created, we direct that the respondent No.9 shall remain liable to pay the price of the land allotted to it @ ₹ 1500 per sq. meter-the reserve price, within a time to be appointed by CIDCO. 3. The sale in favour of Aurangabad Ajanta Bahu Uddeshiya Sewa Sanstha, respondent No.5, shall stand annulled, as held by the High Court and the land shall revert back to CIDCO. 4. The land sold to Aurangabad Holiday Resorts, the respondent No. 15, shall be inspected, surveyed and demarcated under the supervision of a highly placed and responsible official of CIDCO to be nominated by its Board. Such of the land on which substantial construction has come up rendering the situation irreversible shall be separated alongwith some more area of contiguous land so as to make its user practical. The total area of such land shall be calculated and in that regard the buyer shall pay to C1DCO the price @ &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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