TaxTMI 
TaxTMI 
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2013 (7) TMI 1074
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....g 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 delivery of possession of the two plots but did not....
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.... 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communications, no mention was made about Plot No. 1087 because compensation deposited in respect of that plot had been withdrawn. 6.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, SRA granted Commencement Certificate to respondent No.5. After about three years,....
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....e 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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....nbsp; Lamington Road, 38, Cawasji Patel Street, Mumbai -400 008 Fort, Mumbai -400 001 &n....
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....ement 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 Date: 29/12/2010 To, M/S. Shree Ahuja Properties, A-1, Rajpipla, Opp. Standard Chartered Bank, Lin....
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....se. 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 July, 2011 To, The Divisional Manager, MTNL, MTNL Building Prabhadevi, Mumbai -400 025 Subject: Submission of MTNL Building Plan Ref: CTS No. 1087 & 1088, Mahim Division, Rejabhau Desai Marg, Prabhadevi, Mumbaio-400 025 Dear Sir, We are submitting the MTNL Building Plan for your record and future advice. Please acknowledge the same. Thanking You, Yours Faithfully, For Shree Ahuja Properties & Realtors Pvt. Ltd. Sd/- Authorized Signatory Enclose: MTNL Building Plan" "Shree Ahuja Properties and Realtors Private Limited Corporate Office: V.N. Sphere, Level Thr....
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....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 appellant filed special leave petition questioning the order of the High Court. It also filed an application for condonation of 401 days' delay. 12. We have heard Shri Harin P. Raval, learned senior counsel for the appellant, S/Shri Mukul Rohatgi, P.P. Rao, Gopal Subramanium, Dr. A. M. Singhvi and Shri Shekhar Naphade, learned senior counsel appearing for the State of Maharashtra and others and carefully scrutinized the records including the files made available by the counsel assisting Shri Raval. Shri Rohatgi argued that the appellant's prayer for condonation of delay should not be entertained because it has not approached the Court with clean hands and the explanation given for condonation of more than one year's delay is wholly unsatisfactory. He pointed out that Shri Dnyaneshwar Konde, who has filed affidavit in support of the special leave petition, has verified the co....
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....) 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 argued that the appellant is not entitled to be heard on the merits of the case because it deliberately withheld several facts from this Court. Shri P.P. Rao relied upon the judgment in Hari Narain v. Badri Das (1964) 2 SCR 203 (at 207, 208 and 209). Dr. Singhvi relied upon the judgment in Udai Chand v. Shankar Lal (1978) 2 SCC 209. 14. Shri Harin P.Raval, learned senior counsel appearing for appellant invited our attention to affidavit dated 17.2.2012 filed by Executive Director of the appellant and some portions of the rejoinder filed to the counter affidavits of respondent Nos. 5 and 6 and argued that the appellant cannot be accused of concealment of material facts because none of the senior officers was aware about the disposal of the writ petition by the High Court till November, 2011. Shri Raval emphasised that the correspondence exchanged between the counsel for the appellant and cou....
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....y 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 acquired for public purposes of the petitioner. However, the said SLP was dismissed as withdrawn in view of settlement of disputes between the petitioners in that SLP and the concerned Developer. However, while allowing the petitioners in the said SLP the Hon'ble court had observed that the rights of the Ministry of Communication and Information Technology and the Ministry of Environment and Forest would not be effected and they were granted liberty to take appropriate steps. It is submitted, that the present case is being filed on the ground that public interest and exchequer has been defrauded to benefit private individuals." 16. At the cost of repetition, we deem it proper to observe that the averments contained in the application for condonation of delay have been verified by Shri Dnyaneshwar Konde, who filed affidavit in support of the special leave petition, on the basis of knowledge derived by him fr....
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....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 directing respondent No.5 to hand over 1706 sq. mtrs. built up area to the appellant free of cost. Therefore, the assertion contained in the application for condonation of delay that the Senior Management did not know of the direction given by the High Court till November, 2011 cannot but be treated as a deliberate attempt to mislead the Court and on that ground alone the prayer for condonation of delay is liable to be rejected. 18. In Hari Narain v. Badri Das (supra), this Court considered the prayer made by the respondent for revocation of leave granted to the appellant who was a tenant in the suit premises. The respondent had sued the appellant for eviction on the ground of default in payment of rent and house tax. The trial Court dismissed the suit. The appellate Court set aside the judgment of the trial Court and decreed the suit. The second appeal filed by the appellant was dismissed by the High Court. I....
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....ngh 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 hands. After making a reference to some of the precedents, the Court observed: "while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct." 20. In Oswal Fats and Oils Limited v. Additional Commissioner (Administration) (supra), relief was denied to the appellant by making the following observations: "It is quite intriguing and surprising that the lease agreement was not brought to the notice of the Additional Commissioner and the learned Single Judge of the High Court and neither of them was apprised of the fact that the appellant had ta....
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....is 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 to be rejected. 22. The judgment in State of Karnataka v. Y. Moideen Kunhi (supra) on which reliance has been placed by Shri Harin P. Raval contains reiteration of the settled principles of law that the Court should be liberal in exercising power under Section 5 of the Limitation Act and cognizance can be taken of the impersonal character of the Government as also inefficiency, lethargy and tardiness in the functioning of the State and its agencies which, at times, results in delay and that while deciding the application for condonation of delay, the Court should keep in mind the larger public interest. However, that proposition cannot be invoked in the appellant's case because it has been found guilty of suppression of facts and making misleading statement. 23. Notwithstanding the above conclusion, we have considered the appellant's challenge to the order of the High Court, the tenor of which gives an impression that counsel appearing for the part....
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....tructed 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 AIR 1964 SC 1006, the relevant passages of which are extracted below: "It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made mista....