2007 Supreme(SC) 112

2007(2) Supreme 871
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. AR. Lakshmanan and Altamas Kabir, JJ.
Amey Co-op. Housing Society Ltd.—Appellant
versus
Public Concern for Governance Trust & Ors.—Respondents
Civil Appeal No. 408 of 2007
(Arising out of S.L.P. (C) No. 336/2006)
With
Civil Appeal No. 410 of 2007
(Arising out of S.L.P. (C) No. 655/2006)
Decided on 1-2-2007
Counsel for the Parties :
For the Appearing Parties : G.E. Vahanvati, S.G., Ravi Kadam, Advocate General, F.S. Nariman, R.F. Nariman, Mukul Rohtagi, Chander Uday Singh, Altaf Ahamed, Sr. Advocates, P.H. Parekh, E.R. Kumar, Sameer Parekh, Ranjeeta Rohatgi, Nitin Thukral, Sumit Goel (for M/s. P.H. Parekh & Co.), Parimal K. Shroff, Ms. Bina Gupta, Ms. Inklee Barooah, Ms. Amrita Swarup, V.N. Raghupathy, Sidhartha Chowdhury, S.S. Shinde, R.P. Wadhwani, Varun Thakur, Sanjay Dubey, A.S. Bhasme, Vinay Navare and Naresh Kumar, Advocates and Petitioner-In-Person in SLP (C) No. 2707/2006.

IMPORTANT POINT
Considering the enormity of the expenses which had already been incurred in the development of the plots and the construction had been raised upto and beyond the 4th floor, even though the High Court was satisfied that undue favour had been shown to the co-operative societies, the directions given for forfeiture of the land and the constructions raised thereupon were unrealistic, particularly when an alternate prayer had been made for a fresh valuation of the plots for the purpose of compensating CIDCO.

Headnote:Maharashtra Regional and Town Planning Act, 1966—Section 118—CIDCO (Lease of Land to Co-operative Housing Society) Regulations, 1995—Allotment of certain residential plots in Navi Mumbai Municipal Area—Public Interest Litigation challenging the manner of allotment being in violation of existing regulations regulating such allotment—According to writ petitioners the plots in question were cornered by builders who set up dummy societies to acquire the plots and to raise constructions thereon making large gains for themselves and defrauding CIDCO—Immediately after the plots of land had been granted to the dummy societies they merged into one society—Builder commenced construction on behalf of the societies upto the 4th floor level without giving such notice—Stop work notice was issued by the Mumbai Municipal Corporation—It was contended that the entire development is against the letter and spirit of the CIDCO Regulations—Allegations that on account of the manipulations effected in order to favour the Developers, CIDCO incurred a loss of about Rs. 10,000/- per sq. mt. as the plot in question would have fetched a market price for above the weighted average of Rs. 10,743/- for the said plot—High Court quashed the allotments made in favour of six housing societies—Respondents were permanently injuncted and restrained from entering upon, remaining in and/or putting up any construction on the said plots—Construction had been raised upto and beyond the 4th floor when the writ petition was moved—Whether High Court was justified in ordering that the entire construction on the said plots was to stand forfeited and vested in CIDCO—(No)—State Government is directed to cause a fresh valuation of all the plots and to compensate CIDCO.

       Held : Considering the enormity of the expenses which had already been incurred in the development of the said six plots and having further regard to the fact that the construction had been raised up to and beyond the 4th floor when the writ petition was moved, we are of the view that even though the High Court was satisfied that undue favour had been shown to the respondent co-operative societies and M/s. Vijay Associates (Wadhwa) Developers, the directions given for forfeiture of the land and the constructions raised thereupon were unrealistic, particularly when an alternate prayer had been made for a fresh valuation of the plots for the purpose of compensating CIDCO in the event the plots were found to have been under-valued.(Para 53)

       We cannot lose sight of the fact that the writ petition had been filed by way of a public interest litigation to remedy a wrong that may have been committed, but not to extract the proverbial pound of flesh. There are ample facts to support the case of the writ petitioners that undue advantage had been shown to the concerned co-operative societies and in the bargain to M/s. Vijay Associates (Wadhwa) Developers Limited, but the writ petitioner Trust approached the Court with its grievance when the construction was already under way with the due sanction of the Municipal Authorities and huge expenses had already been incurred.(Para 54)

       In our view, the more pragmatic approach of the High Court would have been to take recourse to the relief prayed for in prayer ‘C’ of the writ petition and to have the plots re-valued by an independent government valuer and to compensate CIDCO in respect of any loss that may have been caused to it on account of under-valuation of the said plots. Apart from the above, the Bombay High Court could have also imposed suitable penalties to discourage similar transactions in future instead of taking recourse to such drastic measures such as forfeiture along with cancellation of the allotments.(Para 55)

       The State Government is directed to cause a fresh valuation of all the plots in question as on the date on which the allotments were made, with notice to the petitioner and the respondent-co-operative societies through an independent government valuer and in the event the value is found to be higher than that paid by the respondent-co-operative societies, the difference in value will be paid by Amey Co-operative housing Society Limited.(Para 56)

       Once such valuation is effected and payment, if any, is made, the injunction shall stand revoked and the respondent co-operative societies will be entitled to continue with the construction work.(Para 57)