AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (7) TMI 1074
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....he acquisition of four plots, Town Planning Scheme as described hereinabove for Posts and Telegraph Offices. After considering the report submitted by the Collector under Section 5A(2), the State Government issued declaration dated 7.11.1975 under Section 6(1) of the Act. The Special Land Acquisition Officer (respondent No.2) passed award dated 31.3.1982 and fixed market value of Plot Nos. 1087 and 1088 as Rs. 14,14,282/- and Rs. 13,29,897/-, respectively. Assistant Engineer (Phone) (L.A., Mumbai Telephones) deposited the amount of compensation on 9.8.1982. 4. Since some portions of the acquired land were occupied by slum dwellers, respondent No.2 sent letters dated 10.2.1983 and 22.3.1983 to the officers of the Bombay Telephones to rehabilitate the hutment dwellers or pay rehabilitation compensation and deposit the establishment and service charges. Between 9.6.1983 and 3.8.1992 the officers of Bombay Telephones and Posts and Telegraph Department exchanged correspondence inter se and sent communications to Bombay Housing and Area Development Board, Department of Housing and Special Assistance, Government of Maharashtra and other functionaries of the State Government for deliver....
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....ed land. They woke up from slumber in 2006. Between 1.1.2006 and 4.8.2006, about 20 communications were sent to respondent No.2 and others to deliver possession of Plot No.1088. In those communications, no mention was made about Plot No. 1087 because compensation deposited in respect of that plot had been withdrawn. 6. In the meanwhile, Municipal Corporation of Greater Mumbai sanctioned redevelopment of Plot No. 1088 for rehabilitation of slum dwellers numbering 495, who formed Prabhadevi Cooperative Housing Society (Proposed). The Society signed Development Agreement dated 16.11.2003 with M/s. Shree Ahuja Properties (respondent No.5) for development of Plot Nos. 1087 and 1088. More than 70% of the eligible slum dwellers (352) gave consent affidavits for redevelopment under the Slum Rehabilitation Scheme, which was approved by Additional Municipal Commissioner and competent authority vide order dated 17.9.2004 passed under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short, 'the 1971 Act'). After two months, Executive Engineer-III, SRA issued order dated 6.11.2004 for execution of the scheme by respondent No.5. On 8.4.2005,....
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....ct the respondent No.5 to hand over the above built up area to MTNL. A copy of this order be served upon the Post Master General at Mumbai. In case, the Post Master General of Mumbai has any claim over the built up area in question, it will be open to the said authority to take up the matter with MTNL and with Union of India in the concerned ministry. Since the MTNL has been allotted only built up area admeasuring 1706 sq. metres, we are not called upon to examine the claim of 5723.10 sq. metres made by the petitioner-MTNL in this petition. Any further claim of the petitioner-MTNL with regard to additional built up area, the petitioner-MTNL will be entitled to get the same adjudicated by the appropriate authority. The writ petition stands disposed of." 9. Soon after disposal of the writ petition Ms. S.I. Shah, who had appeared on behalf of the appellant before the High Court, on instructions from her client, sent letter dated 12.10.2010 to Wadia Ghandy and Co., advocate for respondent No.5, to execute separate MOU for 1706 sq. mtrs. built up area. That letter reads as under: "S. I. SHAH & CO. ADVOCATES & NOTARY Office : &n....
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....sp; Lamington Road, 38, Cawasji Patel Street, Mumbai -400 008 Fort, Mumbai -400 001 &n....
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....for the said purpose. Your clients be informed accordingly and let our clients know the specific time limit during which the said construction work will be completed and handed over to our client. Kindly do the needful for execution of MOU in the matter and handover the Draft Agreement to be executed between MTNL and your client. Thanking you, Yours faithfully, Sd/ S. I. Shah & Co. C.C. To. MTNL" (underlining is ours) 10. Between 29.12.2010 and 31.10.2011 the officers of the appellant and respondent No.5 exchanged several communications on the issue of construction of separate building on 1706 sq. mtrs. area, which was to be handed over to the appellant free of cost in terms of the order passed by SRA and the direction given by the High Court. Those communications are also reproduced below: "MAHANAGAR TELEPHONE NIGAM LIMITED,MUMBAI From: 0/0. D.G.M. Plg.) 3rd Flr., Telephone House, Veer Savarkar Marg, Prabhadevi, Dadar (W), Mumbai - 400028 No.PELA-1-691/F.P. 1088/2010-11 &....
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....ner V/S State of Maharashtra & Ors. .. Respondents Dear Sir, With reference to the above subject, as per an order no. SRA/Eng/940/GS/ML&STG/LOI dtd. 8th August 2008 of SRA, MTNL is entitled to 1706 sq. mtrs. built up area free of cost. Nothing is heard from you after the Honourable High Courts judgement dtd. 13th August 2010. It is to inform you that a separate building is to be constructed with separate gate/entrance as per the specifications to be given by MTNL. It is therefore necessary to execute a separate MOU for he said purpose. You are hereby requested to intimate the time limit during which the said construction work will be completed & handed over to MTNL. MTNL, Mumbai Deputy General Manager (Planning) desires to have a meeting with you regarding the above issue. Please fix a convenient day & time for the meeting at an earliest. Thanking you, Sd/- Asst. General Manager (Plg.) MTNL, Mumbai-28. (24228977)" "Shree Ahuja Properties and Realtors Private Limited Flat No.301/302/303/304, 3rd Floor, 190 Linking Road, V.N. Sphere Bldg., Bandra (West), Mumbai - 400 050 Tel. 66285000 (10 Lines) Fax: 66285050 Date : 12....
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....andra (W), Mumbai - 400 050 Sub: Proposed building for MTNL, plan and layout. Ref: Compliance of Condition No. 23 of LOI Sir, With reference to your letter dated 14/09/2011, it is brought to kind notice that in compliance of Condition No.23 of Letter of Intent No.SRA/ENG/1940/GS/ML&STOL/LOI dated 8/08/2008, it was required that the planning and specification for the said buildable reservation shall be obtained from us.However, the building plan and layout proposed by you indicates that the proposed building for MTN is sandwiched between SRA and saleable building. The building is not suitable with regard to its size mentioned, apart from the other difficulties such as separate building compound, a good and proper access for the members of public to proposed MTNL building. Thus the proposed dimensions in the layout building is not acceptable to us.In view of the above, kindly re-examine the case and submit your proper proposal to have easy access, prominence and a good ands usable layout for the proposed MTNL building. Sd/- Sr. Manager (LA) MTNL, Mumbai" 11. After having virtually agreed to take 1706 sq. mtrs. built up area free of cost, the ....
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....Solicitor General becoming aware of order dated 13.8.2010 from the file summoned on 7.11.2011 is clearly an afterthought and a patently incorrect statement has been made to persuade this Court to entertain the special leave petition by condoning the unexplained delay of more than one year. Shri Rohatgi also invited the Court's attention to paragraph 5(vii) of the rejoinder filed by the appellant to the counter affidavit of respondent No.5 to show that as early as in February, 2011 officers of the appellant became aware about the order passed by the High Court. Shri Rohatgi submitted that the conduct of the appellant in seeking the intervention of the Court with unclean hands is sufficient for non-suiting it. In support of his submissions, Shri Rohatgi relied upon the judgments of this Court in Dalip Singh v. State of U.P. (2010) 2 SCC 114, Oswal Fats and Oils Ltd. v. Commr. (Admn.) (2010) 4 SCC 728 and Postmaster General v. Living Media India Ltd. (2012) 3 SCC 563 and order dated 16.2.2012 passed in IA Nos.3-5 in SLP(C) No.4810/2012. 13. Shri P.P. Rao, Shri Gopal Subramanium and Dr.A.M. Singhvi, learned senior counsel appearing for other respondents supported Shri Rohatgi and ar....
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....ncy of SLP (C) No.22747/2010 filed by three occupants of the tenement No.591, 593 and 592 in respect of adjoining plot No.FP No. 1087 TPS IV Mahim, Mumbai, before this Hon'ble Court. While defending the said SLP, the Ld. ASG, called for the file from the Legal Cell pertaining to the impugned order in the present case relating to plot No. 1088 on 7.11.2011. On perusing the file the Ld. ASG became aware of the order dated 13.08.2010 passed in respect of plot no. 1088 in WP No. 1517/2010 and sought the comments from the Ministry regarding order dated 13.08.2010. On this the petitioner came to know about the order dated 13.08.2010 and it was advised to the petitioner to take appropriate steps for challenging the order dated 13.8.2010 in Writ petition No. 1517/2010. It is also relevant to note that the Ministry of Environment and Forest and the Ministry of Communication & Information Technology had vehemently defended SLP (C) 22747/2010 before this Hon'ble Court and had vehemently opposed the action of the State Govt, of Maharashtra in taking away the land bearing plot no. 1087 and 1088 under the 'Slum Rehabilitation Scheme', which belongs to the petitioner and was acqui....
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....dent No.5. Any person of ordinary prudence is entitled to assume that she must have done so under the instructions of the concerned officers. The three officers who exchanged letters with respondent No.5 were Class-I Officers of the appellant. They must have written to respondent No.5 on the basis of instructions given by the higher officers. Therefore, the mere fact that the file notings do not contain a corresponding entry cannot lead to an inference that the senior management of the appellant was not aware of the High Court's order. If Ms. S.I. Shah and three officers of the appellant had exceeded their brief and unauthorisedly exchanged communications with respondent No.5 and its Advocate, then the senior officers of the appellant would have certainly taken action against them. However, it is neither the pleaded case of the appellant nor it has been suggested that Ms. S.I. Shah and three officers had acted unauthorisedly. The averments contained in paragraph 5(vii) of the rejoinder filed by the appellant to the counter of respondent No.5 clearly shows that as early as in February, 2011, the officers of the appellant knew that the High Court had disposed of the writ petition by ....
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....verments made in the appeal before the High Court. That may be so, but the fact still remains that two important statements which, if true, may have been considerable assistance to the appellant in invoking the protection of Section 13(1)(a) even on the construction placed by the High Court on that section are found to be untrue, and that, in our opinion, is a very serious infirmity in the petition itself. It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading." (emphasis added) 19. In Dalip Singh v. State of Uttar Pradesh (supra), this Court considered the question whether relief should be denied to the appellant who did not state correct facts in the application filed before the Prescribed Authority and who did not approach the High Court with clean ....
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....sion over excess land, then there would have been no occasion for the High Court or this Court to entertain the writ petition or the special leave petition. 20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person." (emphasis supplied) 21. By applying the ratio of the above noted judgments to the facts of this case, we hold that the appellant is guilty of not coming to this Court with clean hands and the explanation given by it for 401 days' delay has to be treated as wholly unsatisfactory and the prayer for condonation of delay is liable ....
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....of pronouncement of the award by respondent No.2 and there was no tangible explanation for the delay. We have no doubt that if the appellant had pressed its prayer for issue of a mandamus to the official respondents to deliver possession of the acquired land after evicting the slum dwellers, the High Court would have non-suited it on the ground of laches by taking cognizance of total inaction between 23.6.1998, i.e., the date on which Deputy General Manager (Planning) had written letter to respondent No.2 to hand over vacant possession of the acquired land or refund the compensation, and January, 2006, when exchange of correspondence again started. The High Court would have also taken note of the fact that while the appellant was sleeping over its rights, the Municipal Corporation had sanctioned Slum Rehabilitation Scheme, the Cooperative Society formed by the slum dwellers had entered into development agreement with respondent No.5 and the latter had constructed buildings and handed over 600 units to the slum dwellers for permanent residence and dismissed the writ petition by applying the ratio of the judgment of the Constitution Bench in State of Madhya Pradesh v. Bhailal Bhai AI....