High Court
Legal Reasoning
( 1 ) wp5136.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5136 OF 2025Mahatma Gandhi MissionVERSUSCity and Industrial Development Corporation of Maharashtra Ltd. & Anr.Mr. R.N. Dhorde,Sr. Advocate Mr. V.S. Kadam, Advocate for the petitioner.Mr. Sachin Deshmukh a/w. Mr. Suyash S. Jangada, Advocate for therespondents.CORAM:KISHORE C. SANT, J.RESERVED ON:23.04.2025PRONOUNCED ON:06.05.2025ORDER :-01. Heard learned Advocates for the parties. This petition istaken up for final disposal by consent of the parties.02.Challenging the judgment and order passed by the learnedDistrict Judge-2, Chhatrapati Sambhajinagar in Misc. Civil Appeal No. 155of 2019, the petitioner / original plaintiff has approached this Court. Byway of the impugned judgment and order, the learned District Judge-2has dismissed the Misc. Civil Appeal filed by the petitioner with costs byits order dated 04.02.2025. The appeal was preferred challenging the ( 2 ) wp5136.25order of rejection of Exh.5 application seeking injunction against therespondents passed by the learned 12th Jt. CJSD, Aurangabad in SpecialCivil Suit No. 179 of 2017.03.The petitioner is a trust running educational institutions andis allottee of the lands by the respondents. Respondent No.1 is the Cityand Industrial Development Corporation [for short “CIDCO”], a planningauthority established under the Act. Respondent No.2 is an Administratorof respondent No.1. 04.The facts giving rise, in short, to the present petition are thatthe petitioner runs an Educational Institution in Chh. Sambhajinagar. Thepetitioner also runs charitable hospitals at various places. For thepurpose of establishing educational institutions and hospitals, thepetitioner applied for allotment of land. The land was allotted forengineering college, hospital, staff quarters, club and stadium at TownCentre, CIDCO, Chh. Sambhajinagar. Respondent No.1 passed resolutionallotting land in Town Center for development as requested by thepetitioner by passing resolution dated 27.12.1985 in respect of (i) landfrom Survey No. 7, 8 and 12 of village Baijipura for housing scheme foremployees of Jawaharlal Nehru Engineering college (ii) land for Charity ( 3 ) wp5136.25Hospital adjoining to the land previously allotted to Jawaharlal NehruEngineering College quarters adm. 2 hectare and (iii) land for stadiumand club adm. 9.74 hectare. This land was already reserved for thesame purpose in the plan. The first land was admeasuring 2.47 Hectare(was to be allotted subject to demarcation) in Survey Nos. 7,8 and 12.Second land was was admeasuring 2 Hectare (again subject todemarcation) and third land was admeasuring 9.74 Hectare excluding thepart of stadium site at certain rate. Thus, these three lands weredecided to be allotted by Resolution No. 3569.05.It is the case that while handing over the possession of theland, the actual land available was only handed over without carryingproper measurement. Therefore, the lease deed came to be executed inrespect of 6.2 hectare land allotted for the educational purpose byexecuting an agreement on 16.12.1985. Thereafter, the land of 2hectare was given for hospital purpose by executing agreement to leaseon 24.01.1990 for hospital purpose. This was also given withoutmeasurement. On 05.10.1990 third lease deed came to be executed for2 hectare land allotted for hospital purpose. Then again landadmeasuring 9.74 hectare came to be allotted for the club and stadiumby executing agreement to lease on 14.08.1987. When the lands were
Decision
( 4 ) wp5136.25handed over, there was threat of encroachment over the land by slum-dwellers and land mafiyas. It was case of the petitioners that though thelands were handed over, since there was no proper measurements of thelands, the land that was 2.47 hectare was less than the actual size andtherefore request was made to measure the entire land of 2.47 Hectare.Said application was made on 11.02.1991. In 1999, CIDCO had issuednotice. In the meantime, there was litigation in between the petitionerand CIDCO in respect of other two lands. The writ petition was,therefore, filed in this Court. Same came to be dismissed. The SLP filedagainst the said judgment also came to be dismissed.06.So far as present suit land is concerned, the petitioner prayedfor measurement by letter dated 04.05.2007. It was the case of thepetitioner that the land is lesser by 1.45 Acres than the area actuallyallotted by the CIDCO. On request, a measurement was carried on04.05.2007. The then Joint Managing Director of respondent No.1communicated that the land is found to be deficit on the site. It wasinformed that the said measurement would be worked out and deficitarea will be carved out and will be allotted. Thereafter, pursuant to letterdated 08.05.2007 the land was measured. It was then decided to givedeficit land on the basis of report dated 22.05.2007. The Administrator ( 5 ) wp5136.25thereafter proposed to give 4827 sq. mtr. land to the petitioner. Bycommunication dated 05.02.2008, the Administrator informed theTrust/Petitioner and allotted the land and closed the file. However, it wasmade clear that in the said land, there is Vipashyana Center and saidland is to be used for the said purpose. The resolution was thereafterpassed and was forwarded to the Government for approval. Saidresolution was however, not accepted. The Government directed theAdministrator that the said resolution is cancelled. It was stated that onthe said land, there is encroachment made by the petitioner. It wasdirected to remove said encroachment and to put the land for auction byCIDCO. This was challenged in Writ Petition No. 6310 of 2010. Asalready stated, said Writ Petition came to be dismissed and SLP againstthe said decision also came to be dismissed.07.Present dispute as per the petitioner is not in respect of thesubject matter of Writ Petition No. 6310 of 2010. It is only about 4287sq. mtr. land. Present dispute started in view of notice given by therespondents dated 23.09.2016 in respect of the land given to stadiumand club admesuring 7641 sq. mtr. It is stated that there is provisionthat if the land is found to be lesser than the actual allotment, theamount charged for the same is to be refunded without interest. If the ( 6 ) wp5136.25land is found to be in excess, then the amount would be charged as perthe rate at the time of allotment. However, there is no policy of givingalternative land if the land is found to be lesser than the actualallotment. It was stated that the resolution of granting and allotting landof 4827 sq. mtr. is sought to be cancelled. By notice, explanation wascalled. Said notice was replied on 01.10.2016. It was the case of thepetitioner that the land is given in possession of the society afterfollowing due process. Once resolution was passed, same could not havebeen reviewed. It was stated that the resolution be not sent forapproval. Thereafter, CIDCO issued a letter directing to hand overpossession of the land that was wrongly allotted of 4827 sq.mtr. andfurther it was directed to pay amount for the land, which is found to beallotted in excess with interest.08.On this, the petitioner approached Civil Court by filing SpecialCivil Suit, with prayer that the notice dated 17.04.2017 and theresolution dated 23.02.2017 be cancelled. It prayed for declaration thatnotice dated 23.09.2016 is void ab-initio, illegal and not binding on theplaintiff. Further injunction was prayed. The petitioner also prayed fortemporary injunction by filing application under Order 39 Rule 1 and 2under Exh.5. It is the case of the respondent in the suit that though ( 7 ) wp5136.25letter dated 05.02.2008 by CIDCO was given to the petitioner, it waserroneously issued by the then Authorized Officer of the CIDCO. Saidlatter was in violation off its own regulations. In any case, said allotmentwas subject to approval of the State Government. The Government bycommunication dated 05.04.2010 had specifically refused to approve theresolution. Same was challenged in the Writ Petition No. 6310 of 2010 inwhich the petitioners lost, in this Court as well as in the Hon’ble ApexCourt. Except this letter, there is no other document like allotment letter,agreement to lease etc. filed on record by the plaintiff. It is further casethat all the lands allotted to the petitioner were subject matter of WritPetition No. 6310 of 2010.09.The learned Trial Judge accepted this case and for this reasonrejected the application against which Misc. Civil Appeal came to be filed.The learned District Judge also concurred with the reasoning given by theTrial Court and dismissed the appeal. The petitioners are thus, beforethis Court.10.Mr. Dhorde, learned Sr. Advocate for the petitionervehemently argued that three pieces of lands were allotted to thepetitioner by duly passing resolutions. The lease deeds are executed ( 8 ) wp5136.25between the parties. Since it was found that lesser area is given inpossession of the petitioner, the then Authorities of the CIDCO verifiedthis fact and thereafter land to the extent of 4782 sq. mtr. was given.On the said land already Vipashyana Center was there. As per thecondition, the petitioner did not change user of the said land and isrunning Vipashyana Center. The land given in possession of thepetitioner is the land which was found to be lesser. No illegality iscommitted in granting land. In view of principles of estoppel, it is notopen for the respondent Authorities to take back possession. It iswrongly held by both the Courts that the subject matter of the presentpetition was also the subject matter of earlier writ petition. Both theCourts have misinterpreted order passed in earlier writ petition and haveheld against the petitioner. He submits that during pendency of Exh.5application and Misc. Civil Appeal, there was temporary injunction orderin operation and same be continued by directing the Trial Court toexpedite the suit. Learned Sr. Advocate submits that there were threeletters issued for allotment of three lands in the said writ petition andtherefore confusion is created. However, resolutions were different ofallotment of all the three plots. The resolution under challenge is only inrespect of Resolution No. 9841 which was sent to the Government andnot resolution in respect of present land. ( 9 ) wp5136.2511.Learned Advocate Mr. Sachin Deshmukh vehemently opposedthe writ petition. He submits that the subject matter of earlier writpetition and the present suit is the same. The land was falling short isnot disputed. The question was only as to whether to compensate thesame, another piece of land could have been given? Second question asto whether the Officer who allotted land was empowered to do so? Hesubmits that though resolution was passed, the same was not approvedby the Government. Thus, the Government’s order is final. The basis ofclaiming allotment by the Petitioner itself is now not available in view ofthe communication by the Government. By way of present suit, thepetitioner is trying to re-open the issue. The attempt is to continue withthe possession. He prays for dismissal of the writ petition with costs.Mr. Deshmukh further submits that the identity of the plot is very clearas in the writ petition it is clearly mentioned that on the said land therewas Vipashyana Center. 12.The main issue for consideration of this Court is thus,whether the petitioner has any right to continue with the possession ofthe land involved in the suit? Secondly as to whether both the Courtshave rightly concluded that the present suit land was the subject matter ( 10 ) wp5136.25of earlier writ petition.13.The learned Trial Judge had considered that there is nodispute that Vipashyana Center is being run on the said disputed land. Itis rightly considered that though the resolution was passed to give landthat was found deficit, same was without any Authority with the officer.In any case, said resolution was not accepted by the Government andthe Government specifically directed to take back the land, byconsidering the relevant paragraph of the judgment in the earlier writpetition.14.The learned Appellate Court also further observed that thelearned Trial Court has applied its mind and has considered the principlesgoverning grant of interim prayers i.e. prima facie case, balance ofconvenience and irreparable loss. The Court did not find any perversityin the order. The Court considered the allotment of that land as anencroachment in view off directions of the State Government. It isfurther held that the plaintiff failed to establish legal right over the suitproperty and the possession of the plaintiff itself is illegal. 15.This Court has gone through the reasoning of both the ( 11 ) wp5136.25Courts. This Court finds that both the Courts have considered primafacie case. It is correctly held that there is no any document executedbetween the parties, so far as present land is concerned. Only letter wasissued by the then Administrator of CIDCO to allot the land. Pursuantthereto resolution was also passed. However, the Government in specificwords refused to accept the resolution and directed to take back thepossession. As there is no legal allotment in favour of the petitioner,possession of the petitioner needs to be taken as encroachment. It is amatter of record that there is no lease deed executed in respect of thisland. Mere resolution, assuming if any, will not confer any title on thepetitioner. It is trite law that to confer title, there has to be validdocument executed between the parties. No such document is placed onrecord by the plaintiff. When the plaintiff has failed to prove the primafacie case itself, the Court need not go into further question of balance ofconvenience and irreparable loss. For considering the two aspects ofbalance of convenience and irreparable loss, it is necessary that a primafacie case is made out. Unless person shows any legal right, he cannotproceed further to show balance of convenience or irreparable loss asthere is no right itself vested in such person and secondly there is noquestion of irreparable loss. ( 12 ) wp5136.2516.So far as submission as to whether this very land was subjectmatter of earlier writ petition is concerned, this Court finds that both theCourts below by going through the judgment in the writ petition haveheld that this land was also a subject matter of the writ petition. In ParaNo. 2 (d), this Court in the judgment has clearly held that the land whichwas allotted, there is Vipashyana Centre in it. There is also reference ofthe area of the plot i.e. 4827 sq. mtr. which was found to be less thanthe actual allotted land. Said para is reproduced below :-“(d) It is contended by the petitioners, that since the petitioner was inpossession of the aforesaid land admeasuring 2.47 hectares, thepetitioner has constructed temporary shed to run Dhamma AjantaAurangabad, and Vipashyana Meditation Centre. It is contended that inthe meanwhile, the respondent /CIDCO agreed to measure the total landto solve the dispute and it was accordingly found that the area inpossession of the petitioner was less by 4,827 Square Metre than the landwhich was actually allotted. It is contended that accordingly therespondent no.2 has allotted 4,827 Square Metre land which was found tobe less than actually allotted.”.Para Nos.14 and 15 of the said judgment read as under :-“14.We are, therefore of the considered view that it was not at allpermissible for the officers of the CIDCO to have offered the aforesaidland to the present petitioner, in view of judgment of this Court and theApex Court, in case of the petitioner itself, and in view of the directionsissued by this Court in the PIL, which are affirmed by the Apex Court. Wehave no hesitation to observe that the officers of the CIDCO, in collusionwith the petitioner, have made an attempt to allot the aforesaid land of2.47 hectares to the petitioner, which claim of the petitioner has beenspecifically turned down by this Court and the Apex Court, in the earlierround of litigation. We further find that the offer and acceptance aretotally in breach of directions issued in the PIL. It is clear that no land inpossession of CIDCO could have been disposed of, in the absence ofpublic proclamation / tender. An attempt was made to clandestinely allot ( 13 ) wp5136.25the land to the petitioner, in breach of the directions issued by this Courtin the PIL.15. It is further to be noted that vide communication dated 5thFebruary 2008, what was stated, was only an offer made to the petitioner.The resolutions in the meeting dated 2nd April 2008 would also show thatthe resolution to allot the land was subject to approval of the StateGovernment. It can, thus, be seen that there was no right accrued înfavour of the petitioner. Unless the resolution of the the Board of Directorsof CIDCO was approved by the State Government, the land could nothave been allotted to the petitioner. We, therefore, find that the groundraised by the petitioner, regarding estoppel, is without any substance.”17.Reading the above paragraphs, there is no doubt that thisvery land was subject matter of the earlier writ petition. This Court inthe said judgment had even issued notices as to why proceeding shouldnot be initiated of committing contempt against the then AdministrativeOfficer of respondent No.1. When these are the facts, still the petitionerhas ventured to file suit contending that they have legally occupied thesaid plot.18.The Hon’ble Supreme Court in the judgment in he case ofSopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner& Ors., reported in (2004) 3 SCC 137, by relying on judgment in thecase of Dalpat Kumar Vs. Prahlad Singh, (1992) 1 SCC 719,considered that it is settled position that no injunction could be grantedagainst true owner at the instance of person in unlawful possession. In ( 14 ) wp5136.25the present case, there is no doubt that the CIDCO is owner of the land.Merely, by issuing letter by Administrative Officer, the petitioner cannotbecome lawful owner of the plot.19.Hon’ble Apex Court in the case of Premji Ratansey Shah &Ors. Vs. Union of India & Ors., (1994) 5 SCC 547 considered as towhether injunction be refused. It is held that no injunction would beissued in favour of trespassers. It is held that the Trial Court and theApex Court rightly rejected the relief of inunction in favour of thepetitioners, who were not having any interest in the property.20.In the judgment in the case of Mohd. Mehtab Khan & Ors.Vs. Khushnuma Ibrahim Khan & Ors., reported in 2013 (9) SCC221, the Trial Court had taken a view that the entitlement of the plaintiffto get order of interim mandatory injunction was in serious doubt. TheAppellate Court interfered with the exercise of discretion by the TrialJudge. It is held by the Hon’ble Apex Court that said exercise was foundto be palpably incorrect or untenable.21.In the present case, this Court has seen that both the Courtshave given cogent reasoning. The Trial Court has used discretion based ( 15 ) wp5136.25on some principles. This Court finds that no case is made out calling forinterference at the hands of this Court. There is no merit in the WritPetition. The Writ Petition, therefore, stands dismissed with no order asto costs.[KISHORE C. SANT, J.] snk/2025/apr25/wp5136.25