Smt. Kasturibai Sukharam Khandelwal Trust vs Indore Development Authority & Ors.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 5308 OF 2010

SMT. KASTURIBAI SUKHARAM KHANDELWAL TRUST .….APPELLANT(S)

VERSUS

INDORE DEVELOPMENT AUTHORITY & ORS. .…RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 5309 OF 2010

INDORE DEVELOPMENT AUTHORITY ….APPELLANT(S)

VERSUS

SHRI KHANDELWAL TRUST & ORS. ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. Both the appellants (respondents before the High Court) being

dissatisfied with the impugned judgment dated 4th November, 2008

have preferred these appeals.

Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2019.10.03 16:18:42 IST

2. The facts in brief relevant for the purpose are that the appellant Reason:

Smt. Kasturibai Sukharam Khandelwal Trust and the 2nd respondent 2

Shri Khandelwal Trust (writ petitioner) are registered public trusts.

The 2nd respondent made an application directly to the Indore

Development Authority(hereinafter referred to as “Authority”) for

allotment of land for public purpose and to carry out trust activities on

30th September, 1988. In sequel thereto, another application was

addressed to the then Chief Minister on 29 th December, 1988 for

allotment of land for the purpose of construction of a community hall

to be used for public purposes.

3. The authority thereafter issued an advertisement dated 7 th

September, 1989 inviting applications for allotment of land to

registered institutions indicating necessary requirements to be

furnished by the institutions desirous for allotment of land. In

response to the advertisement, the appellant Trust submitted an

application on 9th October, 1989. After the applications were

processed, the authority took a decision to allot 50,000 sq. ft land in

scheme no. 54/75­C in favour of the appellant Trust vide

communication dated 2nd July, 1990 and simultaneously, the

authority also communicated the decision for allotment of 30,000 sq.

ft. of land in Scheme No. 54/74­C to the 2 nd respondent vide

communication dated 2nd July, 1990.

4. Immediately after it reveals to the authority of the allotment 3

being made to both the trusts of the same community at the same

place, the authority revisited its decision and under its Resolution no.

21 dated 11th February, 1991 decided that it may not be advisable to

allot land to two trusts of Khandelwal community, cancelled the

application of the 2nd respondent and confirmed the allotment in

favour of the appellant Trust and that became the subject matter of

challenge in a writ petition filed at the instance of the 2 nd respondent

under Article 226 of the Constitution of India.

5. The Single Judge of the High Court, after hearing the parties,

dismissed the writ petition under its order dated 1 st February, 2001

which came to be challenged in letters patent appeal. The Division

Bench of the High Court of Madhya Pradesh, taking note of the rival

claim of the parties and noticing the fact that, in the interregnum

period, the plot had also been allotted to Life Insurance

Corporation(respondent no. 4) which was nowhere the subject matter

but still taking note of the material on record and giving quietus to the

dispute, disposed of the writ petition under its order impugned dated

4th November, 2008 with a direction to the authority to reconsider the

matter of allotment of land afresh after affording opportunity of

hearing to the parties and assess the comparative assessment and

merit of the appellant Trust and 2nd respondent and pass speaking 4

order in accordance with law.

6. Mr. Ranjit Kumar, learned senior counsel for the appellant Trust

submits that the allotment could be made in terms of the Regulations

for Disposal, 1987(hereinafter being referred to as “Disposal

Regulations 1987”) which has been framed in exercise of power under

Section 58 read with Section 86 of the Madhya Pradesh Nagar Tatha

Gram Nivesh Adhiniyam, 1973 and procedure for allotment has been

provided under Chapter III and Regulation 3(A) clearly postulates that

where the authority proposes to transfer any property except as

provided under Regulation 3(B), 3(C) and 3(D), it may do so by (a)

public auction; or (b) inviting tenders or (iii) inviting applications from

eligible persons either on continuing registration basis or otherwise, as

may be specified in terms of the advertisement.

7. The present appellant Trust submitted application pursuant to

an advertisement inviting applications dated 7th September, 1989 and

indisputedly no application was submitted by the 2 nd respondent, still

the application was processed but, after noticing by the authority that

the allotment of land to 2nd respondent being in contravention of

Chapter III of Disposal Regulations, 1987, the mistake was

immediately rectified by cancelling the letter of allotment in favour of

the 2nd respondent and confirmed the allotment in favour of the 5

appellant Trust under its Resolution No. 21 dated 11 th February, 1991

and the decision of the Authority being in conformity with Chapter III

of Disposal Regulations, 1987, interference in writ appeal was not

justiciable and deserves to be interfered by this Court.

8. Learned counsel further submitted that the 2nd respondent does

not appear to be interested in the instant proceedings to put forth his

claim. At the same time, the present appellant had constructed a

community hall which has been used for public purposes and also by

the community for a sufficient long period and the Division Bench of

the High Court was not justified in reopening and reverting back to

square one leaving the authority to decide their respective claims at

such belated stage and, therefore, impugned judgment deserves to be

set aside.

9. Learned counsel for the appellant in the connected appeal filed

by Indore Development Authority, while supporting the submissions,

further submits that apart from the fact that 2nd respondent had not

submitted any application for allotment pursuant to an advertisement

dated 7th September, 1989 required under Disposal Regulations, 1987,

the authority was of the view that it will not be advisable to provide

adjoining plots to one community and after revisiting the factual

matrix of the matter considered it appropriate to cancel the decision 6

for allotment made in favour of the 2 nd respondent and there being no

error in the decision making process held by the authority, the

Division Bench of the High Court committed manifest error in

directing to revisit the whole process of allotment and that needs

interference by this Court.

10. Learned counsel further submits that so far as the allotment

made in favour of 4th respondent(LIC) is concerned, it has nothing to

do with the allotment made in reference to the trust which is

impugned in the proceedings and calling upon the 4 th respondent(LIC)

to participate in the whole process was not justiciable.

11. Heard learned counsel for the appellants and no one has put an

appearance on behalf of the contesting respondent despite service and

with their assistance perused the material available on record.

12. Indisputedly, the 2nd respondent had not submitted any

application for allotment of land pursuant to an advertisement inviting

applications for allotment of land dated 7th September, 1989, despite

being published in the local newspaper. At the same time, application

of the appellant Trust was found to be in order complying with the

necessary requirements as indicated in the advertisement and after

due scrutiny of the applications, plot ad­measuring 50,000 sq. ft was

allotted to the appellant in Scheme No. 75­C for community hall by 7

letter of allotment dated 2nd July, 1990.

13. After noticing that the 2nd respondent had submitted application

for allotment of land for community hall on 30 th September, 1988

directly to the Indore Development Authority and to the then Chief

Minister of Madhya Pradesh dated 29 th December, 1988 which was

erroneously processed in the office of the authority and letter of

allotment of land was issued ad­measuring 30,000 sq. ft. in Scheme

No. 74­C dated 2nd July, 1990 and later noticing the fact that two

separate allotments have been made in the same scheme to two

separate trusts of the same community and that being an apparent

error, the decision was taken by the authority vide its Resolution No.

21 dated 11th February, 1991 to confirm the allotment of 50,000 sq. ft

land in favour of the present appellant at the rate of Rs. 15/­ per sq. ft

and application of the 2nd respondent seeking allotment of land was

rejected.

14. It was not the case of either party that the appellant Trust either

failed to fulfil necessary conditions as referred to under the

advertisement dated 7th September, 1989 pursuant to which the

applications were invited or failed to fulfil necessary requisite

conditions for allotment under any statutory enactment or Disposal

Regulations, 1987 or there was any error being committed by the 8

authority in its decision making process while the allotment of land

was made in favour of the appellant Trust. To the contrary, the

emphasis of the 2nd respondent while approaching to the High Court in

a writ petition filed under Article 226 of the Constitution of India was

that vide Resolution No. 21 dated 11 th February, 1991, the authority

has cancelled their allotment of land without affording opportunity of

hearing and has failed to comply with the principles of natural justice

and that appears to be the reason prevailed upon to the Division

Bench of the High Court directing the Indore Development Authority to

revisit the matter of allotment of land and take a decision in

accordance with law.

15. In the instant facts and circumstances, the facts remain

indisputed that the 2nd respondent has not submitted any application

for allotment of land pursuant to an advertisement dated 7 th

September, 1989. In the ordinary course of business, there was no

justification for the authority to consider the application of the 2 nd

respondent which was not in due compliance and in terms of the

advertisement in reference to which the applications were invited.

That appears to be an apparent error which was committed and

indeed such application was not open to scrutiny and for allotment of

land as desired by 2nd respondent and taking note of the peculiar fact 9

situation, calling upon the 2nd respondent and affording an

opportunity of hearing and for comparative assessment of claim, will

remain an empty formality and no purpose was to be served.

16. In addition to it, the 2nd respondent (writ petitioner) despite

service, has chosen not to appear and participate in the proceedings

before this Court, it appears that he is not interested to pursue and to

put its claim for alleged allotment. That apart, the allotment made to

the LIC, in any manner, have no nexus to the inter se dispute between

the two trusts with regard to allotment of land and thus, there was no

justification for the Division Bench at least to call upon respondent

no. 4 LIC to be a part of the proceedings which the Indore

Development Authority was to undertake in compliance of the

impugned judgment in the instant proceedings.

17. After going through the material on record, we are of the

considered view that directing the Indore Development Authority to

revisit the matter afresh at this stage when the lease deed of the plot

has been executed and the appellant has raised construction and is

running a community hall for the benefit of the public at large and at

the same time, the 2nd respondent has shown complete disinterest in

the proceedings, no purpose otherwise will be served if the parties are

remitted to the authorities to examine their respective claims in 10

compliance of the impugned judgment of the Division Bench.

18. Consequently, both the appeals succeed and are accordingly

allowed. The impugned judgment of the Division Bench of the High

Court dated 4th November, 2008 is hereby set aside. No costs.

19. Pending application(s), if any, stand disposed of.

……..…………………………………J. (N.V. RAMANA)

……..…………………………………J. (MOHAN M. SHANTANAGOUDAR)

………………………………………..J. (AJAY RASTOGI)

NEW DELHI OCTOBER 03, 2019