[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.393 OF 2008 Yateemkhana & Madrasa Anjuman Khairul Islam & Anr. .... Petitioners Vs. State of Maharashtra & Anr. .... Respondents Sri R.A. Shaikh for the Petitioners. Sarvasri Ravi Kadam, Advocate General a/w D.A. Nalawade, Government Pleader for the Respondent Nos.1 and 2. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI A.A. SAYED, JJ. DATED: DATED: DATED: JULY 17, 2008 ORAL ORDER (Per Sri R.M.S. Khandeparkar, J.): ORAL ORDER (Per Sri R.M.S. Khandeparkar, J.): ORAL ORDER (Per Sri R.M.S. Khandeparkar, J.): 1. Heard. By the present petition the petitioners are seeking direction to the respondent No.2 to forthwith handover the possession of the four plots which, according to the petitioners, were agreed to be allotted to the petitioners by the respondent No.1 under the Orders dated 20-3-2002 and 2-1-2003 pursuant to the decision by the Cabinet Sub-Committee in the Resolutions dated 1-1-2002 and 16-7-2002 in accordance with Resolution 16 issued under the Maharashtra Housing & Area Development (Disposal of Land) Regulations, 1982. It is the case of the petitioners that in the 16th meeting of the Ministerial Sub-Committee held on 1-1-2002 it was decided that plot No.9 admeasuring 4960 [2] sq.mtrs., reserved for play-ground, to be allotted to the petitioners and further in their meeting held on 16-7-2002 it was decided to allot three plots, namely, plot Nos.A-5 admeasuring 2206 sq.mtrs., A-22 admeasuring 2257 sq.mtrs., and A-23 admeasuring 2160 sq.mtrs. to be allotted to the petitioners. However, till this day the respondents have avoided to deliver the possession of the said plots without any justification and, therefore, necessary direction needs to be issued to the respondents to deliver the possession thereof to the petitioners. 2. The learned Advocate General, drawing our attention to the decision of the Division Bench of this Court in Writ Petition No.75 of 2004 {Ninad Gas Service v. State Ninad Gas Service v. State Ninad Gas Service v. State of Maharashtra of Maharashtra of Maharashtra}, delivered on 3-3-2004, submitted that pursuant to the filing of the said petition, wherein the petitioner therein had sought direction to the State Government to formulate guidelines for exercise of powers under Regulation 16 and further that the powers under Regulation 16 should not be exercised unless the guidelines are approved by the Court, this Court by the interim order dated 3-3-2004 had directed the Government to formulate and place at the disposal of the Court the necessary directives and guidelines which would govern the exercise of powers under Regulation 16 and further that till such guidelines are framed and approved by the [3] Court, the Government was directed not to exercise powers under Regulation 16 as well as not to dispose of any of the plots and even direction in that regard was issued to MHADA not to give effect to any pending proceedings. Pursuant to the said interim order, the Government had classified the cases in two parts - those which were already cleared by way of delivery of possession and acceptance of money pursuant to the allotment decision taken by the competent authority and those wherein merely decisions for allotment were taken but no further steps were taken in that regard and the latter cases were considered as the pending cases. Pursuant to the interim order, in all the pending cases the Government had not taken any further steps and the case of the petitioners was in the second category. In the category of pending cases, no further steps were taken, neither the exact area was demarcated, nor the possession was delivered nor any amount or price of the plot was accepted, nor any decision regarding concession in the matter of price to be paid by the allottees was taken and consequently it was merely a pending case which was covered by the interim order granted in the said writ petition. Pursuant to disposal of the said writ petition, it was specifically directed by this Court in the order dated 15-12-2004 as under: "19. Shri Naphade, learned Senior [4] Counsel appearing for State and MHADA makes a statement that upon approval of these guidelines by this Court, all pending cases would be considered in the light of observations made in this judgment as well as in accordance with the guidelines as approved by this Court. The apprehension of petitioners that exercise of powers would be wholly arbitrary and without any guidance, is, therefore, not well founded. We record the statement of the learned Counsel appearing for State and MHADA and direct that the State Government shall strictly abide by the guidelines while exercising powers under Regulation 16. Needless to observe that the State would be entitled to consider applications for allotment on their merits and in accordance with law. Further, needless to observe that individual allotments could always be subject matter of challenge in independent proceedings and neither the observations made in this judgment nor in our earlier order would constitute a bar for aggrieved persons to approach appropriate authorities including this [5] Court." 3. The learned Advocate General further submitted that consequent to the said directions by this Court, as the petitioners’ allotments were falling in the category of pending cases, and as no further steps were taken consequent to the decision of this Court in the said writ petition, same will have to be reconsidered in accordance with the guidelines laid down and for that purpose the petitioners will have to approach the competent authority in terms of Regulation 16. Undisputedly, the petitioners have not approached the competent authority in that regard till this day. 4. The learned counsel for the petitioners thereupon submitted that the petitioners were not parties to the Writ Petition No.75 of 2004. Merely because the petitioners were not parties to the said writ petition, that would not absolve the Government from not complying with the directions issued under the said order and, therefore, the decision in Ninad Gas Service Ninad Gas Service Ninad Gas Service (supra) would be binding upon all the parties who are interested in obtaining any plot in terms of Regulation 16 of the said Regulations. Considering the same and considering the fact that in the case of the petitioners, apart from the fact that the decision to allot the plot was admittedly taken prior to 15-12-2004 and thereafter no [6] further steps were taken pursuant to the said decision, as rightly submitted by the learned Advocate General, it was a pending case within the meaning of the said expression under the said decision and, therefore, no fault can be found with the decision of the respondents requiring the petitioners to move afresh to get the plot, if they so desire, by taking resort to Regulation 16 of the said Regulations read with the guidelines approved in the said writ petition. Till and until the petitioners do not comply with the said Regulation, no fault can be found with the respondents’ decision not to deliver the possession of the said plots. Viewed from this angle, we do not find any case having been made out for interference in the case in hand. The petition, therefore, fails and is rejected. (A.A.Sayed, J.) (R.M.S.Khandeparkar, J.) sjs/J8wpo393.8 sjs/J8wpo393.8 sjs/J8wpo393.8