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2018 Supreme(Bom) 683
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, BHARATI H. DANGRE, JJ.
Hindustan Unilever Limited & Others – Petitioners
Versus
The State of Maharashtra & Others – Respondents
Writ Petition (L) Nos. 122 of 2018, 137 of 2017, 513 of 2017 with Notice of Motion Nos. 45 of 2018, 52 of 2018, 469 of 2017 & Chamber Summons No. 248 of 2017
Decided On : 03-05-2018
For the Petitioners:Virag Tulzapurkar-Senior Advocate with Dr. Birendra Saraf, Melvyn Fernandes, Amit Bhandari, Jineshkumar Gandhi, Nikita Panhalkar i/b. M/s. Vaish Associates, Birendra Saraf, Divyanka Kapoor, Rupen Kanawah, Dr. Milind Sathe, Senior Advocate with Nishit Dhurva, Malav Virani, Rohan Agrawal i/b. M/s. MDP & Partners, Sanjay V. Kadam, Mayur Khandeparkar, Apeksha Sharma, Sanjeel Kadam, Sayalee Rajpurkar i/b. M/s. Kadam & Co., Advocates
For the Respondents:Dr. Milind Sathe, Senior Advocate with Divyanka Kapoor, Akshit Dhedia, Jasmine Kachalia i/b. M/s. Wadia Ghandy & Co., Rafique Dada, Senior Advocate with Prasad Dhakephalkar, Senior Advocate with Ashish Kamat, Aditya Mehta, M.S. Federal, Murtuza Federal, Namrata Shah, Anchal Rohira, Paulomi Mehta i/by M/s. Federal & Rashmikant, Ashutosh Kumbhakoni, Advocate General with Geeta Shastri, Additional Government Pleader, Mr. Abhay Patki, Additional Government Pleader, Uma Palsuledesai, Kedar Dighe, A.G.Ps.
Headnote:
Constitution of India,1950 - Article 226 - Maharashtra Amendment Act - Section 295 - Petitioners are claiming - Quash - Court be pleased to issue a Writ of Mandamus or Writ in nature of Mandamus or any other appropriate Writ order and/or direction Article Constitution of India declaring amendment of Maharashtra Land Revenue Code as illegal ultra vires unconstitutional beyond legislative competence of State and being violative of Article Constitution of India and same be quashed and set aside Court may be pleased to issue a Writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ order or direction Article Constitution of India calling for records of Impugned Notice which is EXHIBIT A annexed hereto and after considering legality validity and propriety or otherwise thereof be pleased to quash or set aside same corollary and incidental to main relief petitioners are praying for issuance of a writ of certiorari or a writ in nature thereof or any other appropriate writ order or direction under Article Constitution of India to call for records of impugned notice and after considering legality validity and propriety thereof to quash and set aside same- Byand amended paragraphs essential and factual position is narrated in following terms –Held, Referred to above manifestly show that it is open to legislature to alter law retrospectively provided alteration is made in such a manner that it would no more be possible for Court to arrive at same verdict- In other words very premise of earlier judgment should be uprooted thereby resulting in a fundamental change of circumstances upon which it was founded legislature validates an executive action repugnant to statutory provisions declared by a Court of law what legislature is required to do is first to remove very basis of invalidity and then validate executive action- In order to validate an executive action or any provision of a statute it is not sufficient for legislature to declare that a judicial pronouncement given by a Court of law would not be binding as legislature does not possess that power- A decision of Court of law has a binding effect unless very basis upon which it is given is so altered that said decision would not have been given in changed circumstances State has also power to recover premium or transfer fees but it is at once clarified that whether all of this can be recovered together or simultaneously or at all would depend upon facts and circumstances in each case- No general rule can be laid down in that behalf amount or sum in money qua each would have to be determined and decided strictly in accordance with law as explained in detail in foregoing paragraphs- If a special order is passed in a lessees case then lessee or affected party can impugn it irrespective of conclusion reached by us regarding power of State – Petition disposed
S.C. Dharmadhikari, J.
Writ Petition No. 122 Of 2018:-
1. By this petition under Article 226 of the Constitution of India, the petitioners are claiming the following principal reliefs:-
“(a)(1) That this Hon'ble Court be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, order and/or direction under Article 226 of the Constitution of India declaring the amendment dated August 22, 2016 to Section 295 of the Maharashtra Land Revenue Code, 1966 as illegal, ultra vires, unconstitutional, beyond the legislative competence of the State and being violative of Article 14 and 19(1)(g) of the Constitution of India and the same be quashed and set aside;
(a) That this Hon'ble Court may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Impugned Notice dated December 26, 2017, which is EXHIBIT A annexed hereto, and after considering the legality, validity and propriety or otherwise thereof be pleased to quash or set aside the same;
(b) that this Hon'ble Court may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India against the Respondent No. 1 and 2 ordering and directing them to withdraw and/or cancel the Impugned Notice dated December 26, 2017;
(c) that this Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India against the Respondent No. 2 and 4 ordering and directing them to forthwith complete the mutation for the Property in the name of Housing Development Finance Corporation Limited (HDFC);
(d) that pending the hearing and final disposal of this Petition the effect, implementation and operation of the Impugned Notice dated December 26, 2017 being annexed hereto be stayed;
(e) that pending the hearing and final disposal of this Petition the Respondent No. 1 and 2 and their subordinates and agents be restrained by an order of this Hon'ble Court from taking steps in furtherance of and/or implement the Impugned Notice which is being annexed hereto as EXHIBIT A; …..”
2. As a corollary and incidental to the main relief, the petitioners are praying for issuance of a writ of certiorari or a writ in the nature thereof or any other appropriate writ, order or direction under Article 226 of the Constitution of India to call for the records of the impugned notice dated 26th December, 2017 (annexure 'A' to the petition) and after considering the legality, validity and propriety thereof to quash and set aside the same. By the unamended and the amended paragraphs, the essential and factual position is narrated in the following terms:-
3. The petitioner No.1 is a company registered under the Companies Act, 1913 and carrying on business of manufacturing, distribution and sale of consumer goods in India. The petitioner No.2 is a shareholder of Petitioner No.1 Company and is a necessary party. Respondent No.1 is the State of Maharashtra through its Law and Judiciary Department. The Law and Judiciary Department of Respondent No.1 is entrusted with the responsibility to formulate policies, supporting and monitoring programmes and coordinating the activities of various Ministries of the State Government and other nodal authorities insofar as they relate to law and judiciary issues in the State of Maharashtra. Respondent No.1 is a 'State' and amenable to the Writ jurisdiction of this Hon'ble Court. The Respondent No.2 is the Collector of Mumbai City having the jurisdiction over the property in question. The Respondent No.3 is HDFC and is the acquirer of the rights from the Petitioner. The Respondent No.3 is a proforma Respondent and no reliefs are claimed against Respondent No.3. The Respondent No.4 is the
