The City and Industrial Development Corporation Ltd. vs The Sate of Maharashtra and Others

S.C. Dharmadhikari, J.—Rule. Respondents waive service. Rule returnable forthwith.

This writ petition under Articles 226 and 227 of the Constitution of India is directed against the order passed by the Minister for Revenue, Government of Maharashtra dated 5th June, 2009, a copy of which is annexed at Annexure-D to the petition.

That order came to be passed on a Revision Application which was filed by the contesting Respondents Nos. 4 to 7 to this petition.

The application alleged that certain lands at Mouje Kharghar, Taluka Panvel, District Raigad were belonging to one Kurvanali Nagarali Khoja. The name of said person is entered in the revenue records as owner. The said lands have been disposed of by the said Kurvanali Khoja to predecessor-in-title of the Respondent Nos. 4 to 7, namely Smt. Chandrabhagabai Pandurang Aaklekar i.e. by a document/deed dated 27th May, 1940. Thereafter, the said Smt. Chandrabhagabai Pundlik Aaklekar was put in possession and she has got absolute title and right in the said property. Her name has been entered in the revenue record as owner qua Entry No. 619.

This land, according to the Respondent Nos. 4 to 7, always remained with Smt. Chandrabhagabai and she never parted with possession thereof nor her title and/or interest therein was transferred in any manner. This land has been erroneously mentioned in the revenue records as "Akaripad". It has not been notified as land belonging to a private party. In these circumstances, the land came to Kharghar Gram Panchayat on certain terms and conditions. The statement made in the application to the State Government invoking its revisional powers, clearly states that the Collector had passed orders on 13th March, 1941 and 19th March, 1941. It is aggrieved by this that the revisional jurisdiction has been invoked purportedly to seek correction and modification in the revenue records so as to show that the said Chandrabhagabai never lost her title and interest in the said properties.

Upon this application, the contesting Respondent viz. Petitioner which is City and Industrial Development Corporation Ltd., (for short "CIDCO") the Planning Authority raised a preliminary objection that such application at the instance of the Respondent Nos. 4 to 7 cannot be entertained at this belated stage. This application cannot be accepted in any event because the land was a Government land and stood vested in the CIDCO free from all encumbrances. It was pointed out that after a lapse of 70 years, the entries are being questioned and without pointing out that during the intervening period the claim was relinquished by Smt. Chandrabhagabai Aaklekar. The Government took possession and thereafter the land was declared as `Akaripad" and declared as Gram Panchayat land. It vested in the Group Gram Panchayat in the year 1952. In the year 1971, the land was notified for Panvel town and Navi Mumbai and the State Government after following the necessary proceedings directed that the said land vests in CIDCO free from all encumbrances. This was a development of 1972 and thereafter the possession was handed over to the CIDCO in the year 1985. Once the land vested in this manner, then, there is no question of the revision being entertained or any orders being passed thereon.

By overruling this objection, according to the Petitioners, the matter was decided by the then Revenue Minister and while directing that the revenue entries be corrected, he further directed that the question of physical possession being handed over to the Respondent Nos. 4 to 7, does not arise on account of supervening development and circumstances. However, it should be held and all the concerned should proceed on the basis of the land having been acquired from the private parties. The land should be treated as private land and therefore, the benefits that are available post acquisition for such lands, be made available to the Respondent Nos. 4 to 7.

Apprehending that the entire matter which stands concluded by the directions of the State Government issued way back in the year 1972, and the land vesting in CIDCO free from all encumbrances is reopened in this manner and CIDCO may have to face further proceedings so also part with either its immovable property or valuable public funds, that the instant writ petition has been filed.

Mr. Jahagirdar. learned Senior Counsel appearing on behalf of the Petitioner submitted that ordinarily the Petitioner which is a public authority, would not approach this Court in writ jurisdiction challenging the said orders of the State Government. However, in the garb of issuing innocuous directions to correct the revenue entries what the State Government has done is that benefits which flow from the acquisition of private lands, is made available to the Respondent Nos. 4 to 7. In other words, apart from seeking monetary benefits and reliefs on the basis of the order passed by the State Government, they would also seek allotment of alternate land under some Schemes which have been framed by the CIDCO. All this would be based on the declaration of the State Government. He submits that if there was a dispute as regards the right, title and interest of parties in the subject immovable properties and if it was their claim that private lands are acquired, then, nothing prevented them from approaching the competent Court for all these years seeking appropriate reliefs. That having not been done, in the garb of entertaining a revision application and that too to set at naught something which took place 70 years back, the State Government has passed the instant order. This is contrary to settled legal principles that the revisional jurisdiction must be exercised within a reasonable time. That reasonable time in given facts and circumstances, could never exceed the period of three years. In these circumstances, looked at any way, the impugned order deserves to be set aside.

The petition has been contested by the Respondent Nos. 4 to 7. Mr. Walawalkar, the learned Senior Counsel on their behalf invited my attention to the affidavit filed in reply and firstly, submitted that CIDCO being an Agency or Instrumentality of the State and a Special Town Planning Authority, it has no locus to question the order of the State Government. Secondly, he submits that none of the factual aspects which were placed before the concerned Minister were ever disputed by the Petitioner. It was pointed out that during the course of hearing before the Minister that there was no relinquishment. Apart from that, the said property was sold by Chandrabhagabai to one Zuelekabai Kazi by registered sale deed dated 29th March, 1946. If the lands were allegedly surrendered and the claim was relinquished by the said Chandrabhagabai then this sale deed could never have been executed. There is a specific mention with regard to this sale deed and copy thereof was also produced. After the sale deed, the purchaser was put in possession and he enjoyed fruits of the deed and when the land was acquired by CIDCO in the year 1972 so also when the actual possession was taken in the year 1985, the purchaser was held entitled to benefits under the award and accordingly, subsequent benefits are granted to him. For all these reasons, this is not a fit case for interference in writ jurisdiction and particularly, when the dispute is with regard to the revenue entries.

With the assistance of the learned Senior Counsel appearing for the parties, I have perused the petition and annexures thereto so also affidavit on record. As far as objection raised by Shri. Walawalkar about the locus standi of the Petitioner and reliance placed upon the decision of the learned Single Judge of this Court in the case of Percival Joseph Pareira v. Special Land Acquisition Officer and Ors. 2010 (5) B.C.R. 344 is concerned, it must be at once noticed that this was a case of reference u/s 18 of the Land Acquisition Act, 1894. The claimants challenged the order passed by the Reference Court directing that the CIDCO should be impleaded as opponent. It was his case that the lands were not acquired by CIDCO nor at their instance. The State Government was the acquiring body and therefore, CIDCO has no locus to appear in the proceedings. It was while dealing with this objection that the locus of CIDCO was decided. This decision can never be of any assistance to question the locus of CIDCO in the instant proceedings. If a Authority like CIDCO are of the opinion that some of the directions in the impugned order exceed the jurisdiction of the State Government u/s 257 of the Maharashtra Land Revenue Code, 1966 and may have far reaching consequences, then, nothing prevents the CIDCO from approaching this Court in its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. These powers are plenary in nature. They can be invoked by the authorities to question the act of the State Government and if it affects public interest so also re-opens already concluded matters. Precisely for this reason that the instant petition has been filed. Therefore, there is no substance in the first objection about the locus of the Petitioner.

As far as the second objection is concerned, it is clear that the predecessor-in-title of the Respondent Nos. 4 to 7 nor the said purchaser has ever approached the Petitioner either seeking benefits under the Award or the authorities under the Land Revenue Code have been approached for correction or modification of the revenue entries by them. The present Respondent Nos. 4 to 7 claim to be entitled to the lands through their predecessor-in-title i.e. Chandrabhagabai. It was their case that said Chandrabhagabai never relinquished her right, title and interest in the lands and continued to retain the ownership thereof. Such a claim and that too for the first time is entertained by the Revenue Minister. Considering the limited scope of the proceedings namely, seeking modification and correction in revenue entries, it was not open for him to go into the disputed the question of title. It was his plain duty in law in such cases to direct the parties to approach the competent Civil Court and claim appropriate declaration in their favour. On the basis of such declaration the revenue records could have been corrected. However, instead of issuing such direction and disposing of the revision application, the Minister entertained it and virtually adjudicated on the disputed issues. The result of the same is that without any declaration in their favour, Respondent Nos. 4 to 7 by impleading CIDCO as party and approaching the State Government u/s 257 of the Maharashtra Land Revenue Code, 1966 obtained certain benefits attached to and arising out of the interest in the land. The question was whether such benefits could have been given by the State Government in the instant proceedings. The Minister clearly went much beyond his power, authority and jurisdiction and issued directions which could be said to be unsustainable in law. There is substance in the contentions of Mr. Jahagirdar that innocuous they may appear at least, direction No. (B) would have the effect of re-opening the concluded acquisition proceedings and directing CIDCO to extend the benefits of certain beneficial schemes to persons who are before the revisional authorities. Whether the issue that the said persons could have claimed the same through their predecessor-in-title benefits or otherwise in law, has not been decided. Indeed, it could not have been decided in the limited authority and power. It has not been held that the facts on record are so undisputed and clear that there was never any doubt about the same on the own showing of the Respondent Nos. 4 to 7 whether Chandrabhagabai retained the title in the lands is a matter which cannot be gone into unless a declaration in their favour is obtained by them from the competent Civil Court. In these circumstances and without any such declaration, the Minister could not have issued the instant direction.

The Minister has clearly exceeded his authority and could he safely be said in legal parlance has abused the powers that are conferred u/s 257 of the Maharashtra Land Revenue Code, 1966 in issuing the instant direction. Section 257 of the Maharashtra Land Revenue Code, 1966 confers powers on the State Government and on certain Revenue and Survey Officers to call for and examine records and proceedings of subordinate officers for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings before such Officer. It is not as if these powers have to be exercised as a matter of course. The powers are conferred specifically to decide the legality or propriety of the decision or the order or regularity of the proceedings. In such limited power, the State Government could not have as in the instant case, taken upon itself the role of an adjudicator of Right and Title to a immovable property. The role of adjudicator, in the given circumstances, was to be performed by a Civil Court. In the absence of any of the factors which would enable the exercise of the revisional jurisdiction that the same have been exercised in the instant case. It is well established principle of law that what cannot be achieved directly cannot be achieved indirectly or by oblique way or method. The Revenue Minister and the State ought to have been aware that all powers of the aforesaid nature are in the nature of a Trust. The same are to be exercised bearing in mind Public good and Public Trust. Private Interest and benefit is subservient to larger Public Interest. The Revisional Authority ought to have been aware that giving directions to its own Agency or Instrumentality and particularly of the aforementioned nature will land it in serious difficulties as so called landowners will then rush to claim back lands or benefits attached to it or monetary compensation at enhanced rates or such other advantages and privileges which may have been given and offered in the past to induce owners of huge tracts of land to part with them for implementing a New Town Development Project. All cases and matters which have been closed decades back will be reopened and an attempt will be made to seek similar reliefs. Floodgates would open and CIDCO may be exposed to unnecessary and futile litigation. In this context, the judgment of the Hon''ble Supreme Court in the case of Scheduled Castes and Scheduled Tribes Officers Welfare Council Vs. State of Uttar Pradesh and another, is relevant. In paras 21 to 23 of this decision, it is observed thus:

S.A. de Smit in his article "The abuse of statutory powers" published in Public Law Series 1956 (page 233) has stated in page 237 under the heading of "Misuse of Powers in Bad Faith and in Good Faith" that a discretionary power may be exercised invalidly if its repository exercises it for an improper purpose or on the basis of irrelevant considerations or in disregard of relevant considerations or with gross unreasonableness... The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonestly and malice. A power is exercised dishonestly if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or his own private interests. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.

In "Public Administration" by Pfiffner Presthus (4th Edn.) at page 550 it is stated that public administration is responsible to the rule of law doctrine which proves a fairly effective standard for judging administrative decision. Political responsibility is similarly involved with the idea of government''s control by public opinion, political parties, and the community. Responsibility is also commonly used to denote the obligation of an individual to behave according to certain standards of conduct. In public administration, responsibility often has a negative connotation; we are usually satisfied if the official is kept from wrong doing. On "Responsibility and Accountability", he states that accountability refers to the formal or legal locus of responsibility. Responsibility, on the other hand, has a highly personal, normal quality and is not necessarily related to formal status or power, although it is probably true that greater power brings greater responsibility. Thus a department head is accountable for the actions of all his subordinates, although in actual fact he is not "responsible" for their use of the power which he must of necessity delegate to them. Similarly, in exercising discretion the official is normally responsible for his decisions, although he is often not legally accountable. In practice, responsibility must be shared; it percolates down the stream throughout the entire administrative branch. On the other hand, accountability, which concerns the formal relationships between administration and the legislative and judicial branches, can never be shared.... The Council of Ministers is accountable for the entire administrative branch. The bureaucracy has a representative function. In the case of regulatory activity, for example, administrators give meaning to broad legislative declarations of social policy by their decisions in specific cases. In advancing the social objective of the community, they sometimes develop the rule of public interest which is applied when decisions are made. The bureaucracy shares with the legislature the task of ensuring that the community receives a reasonable amount of justice in the distribution of public resources.... Obviously, therefore full faith was given to their acts and actions. In selecting among alternative policies, in extending or narrowing the efficacy of rule or policy, the official necessarily must work in a value context. Various factors impinging upon a particular decision are isolated and require assignment of relative weights nor in accordance with what the official thinks is "right" but in tune with and to effectuate mandates of the Constitution. The "public interest" will be the ultimate element in this process.

Again in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, the Hon''ble Supreme Court holds as under:

In the treatise "Environmental Law and Policy: Nature, Law and Society by Plater Abrams Goldfarb (American Casebook series 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the "Doctrine of the public trust". In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated: "The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests-like the air and the sea-have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principle purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit...." with reference to a decision in Illinois Central Railroad Company v. Illinois (1892) 146 US 387, it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public trust litigation. When a state holds a resource which is available for the free use of the general public, a Court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties". This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.

When we keep in view the principles laid by this Court in its various judgments and which we have noticed above, it has to be held that the agreement dated November 4, 1993 is not a valid one. The agreement defies logic. It is outrageous. It crosses all limits of rationality. Mahapalika has certainly acted in fatuous manner in entering into such an agreement. It is a case where the High Court rightly interfered in exercise of its powers of judicial review keeping in view the principles laid by this Court in Tata Cellular Vs. Union of India, , Every decision of the authority except the judicial decision is amenable to judicial review and reviewability of such a decision cannot now be questioned. However, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. On the principle of good governance reference was made to a decision of Division Bench of Bombay High Court in State of Bombay Vs. Laxmidas Ranchhoddas and Another, . It was submitted that bad governance sets a bad example. That is what exactly happened in the present case.

In State of Bombay Vs. Laxmidas Ranchhoddas and Another, a Division Bench of the High Court was considering the argument that the writ of mandamus being discretionary, the Court should consider whether it should not put a limitation upon its own powers and jurisdiction. It was submitted that it was impossible for any State to function if there was a constant interference by the High Court in the executive acts performed by the officers of the State, Chagla, CJ, speaking for the Court, said (Para 12):

It may be that interference by the High Court may result in inconvenience or difficulty in administration. But what we have to guard against is a much greater evil. When we find in the modern State wide powers entrusted to Government, powers which affect the property and person of the citizen, it is the duty of the Courts to see that those wide powers are exercised in conformity with what the Legislature has prescribed. We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the Legislature. Therefore, far from interfering with the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign Legislature has not been obeyed and powers have been assumed which the Legislature never conferred upon the executive.

It is for this reason, that this Court is required to interfere in writ jurisdiction. As a result of the same, the impugned order cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute in terms of prayer Clause (a). However, it is directed that it would be open for the Respondent Nos. 4 to 7 to institute such proceedings as are permissible in law, if they are claiming their right, title or interest in the immovable properties. All contentions in that behalf of the parties are kept open.