1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO.3068 OF 2009 D.R.Patil .. Petitioner Versus State of Maharashtra and Ors. .. Respondents Mr.R.S.Apte, Senior Advocate with Samir Vaidya, Ms.Gulestan Dubash, Ms.Sakshi Deokar for petitioner Mr.S.R.Nargolkar, A.G.P. For State Mr.Bhalchandra Palav i/b. M/s.Amarchand Mangaldas & S.A. Shroff & Co. for respondent No.4 Mr.Nitin Thakkar, Senior Advocate i/b. C.N.Gole for respondent No.5 and for applicant in C.A. 1054 of 2003 Mr.G.D.Utangale i/b. M/s.Utangale & Co. for respondent No.3. CORAM : SWATANTER KUMAR, C.J. & DR.D.Y.CHANDRACHUD & S.C.DHARMADHIKARI, JJ. Reserved on : 14th December 2009 Pronounced on : 16th December 2009. ORAL JUDGEMENT (Per Dharmadhikari, J) 1] This petition has been placed before the Full Bench of this Court in pursuance of the order of the Division Bench dated 18th March 2009. 2 Pursuant to the order dated 9th Aprril 2009, the entire writ petition has been placed before us along with the applications. We had also directed notice to be issued to Learned Advocate General and learned Assistant Government Pleader (A.G.P) appearing for the State accepted notice on behalf of learned Advocate General. 2] By this petition under Article 226 of the Constitution of India, the petitioner is challenging the Government Resolution (G.R. For short) dated 15th November 2007. Although, the other relief pertain to the orders of the Slum Tribunal, passed in the year 1999-2000, the learned Senior Counsel appearing on behalf of the petitioner confined his arguments to the challenge to the G.R. Dated 15th November 2007. Thus, he sought reliefs in terms of prayer clauses (a)(i) and (b) of the petition. 3] This petition has been filed by the petitionerr proclaiming himself to be the Chief Promotor of proposed Cooperative Housing Society. The First respondent to this petition is State of Maharashtra, second respondent is the High Powered Committee set up under the aforementioned G.R. The third respondent is the Vice President of 3 Maharashtra Housing and Area Development Authority and Member of respondent No.2, High Powered Committee. Respondent Nos. 4 to 6 have been impleaded as formal parties. 4] From the statements made in para 1(a) so also para 2, the principal challenge is to this G.R. The factual background is that a lease in respect of certain plots was granted by the Brihanmumbai Municipal Corporation to one Birla Industries Group Charitable Trust. This is a registered Trust. 5] It is stated that upon the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 (for short Slum Act) being enacted, the then promotor of one Indira Society submitted a scheme for development of Slum on the said plots which were leased to the Trust. The Corporation intimated that the scheme cannot be implemented since the land was in possession of the Trust and they were the lessees. Thereafter, it is stated that the lease and transfer in favour of the Trust came to be challenged by the said Indira society in the City Civil Court and, thereafter, it is stated that the present petitioner intimated on 13th November 1995 to the said Trust that he is desirous of developing the 4 land and addressed a letter for development of the plot as a notified slum. The Municipal Corporation then called upon the petitioner to submit a detailed plan and seek no objection from the Trust. The petitioner called upon the Trust to give its no objection and the NOC came to be received some time in July 1996. 6] The petitioner states that on 18th November 1997, the S.R.A. Granted qualified approval to Indira society to develop the land pending NOC from the Trust. 7] It is alleged that the Slum Rehabilitation Authority (SRA) with an intention to defraud the petitioner, in collusion with Indira society, approved the SRA scheme and the petitioner took inspection of the records in that behalf. However, when the petitioner submitted site plan and location in respect of the first proposed SRA scheme to Corporation, the Corporation issued a letter in his favour stating that it could go ahead with the development. Thereafter, the petitioner entered into a tri-partite agreement with two other entities for development of the plot. He received Annexure -II on 30th March 1998 and the petitioner was 5 permitted to go ahead with the scheme. The NOCs were granted by the Trust based upon which the Letter of Intent (LOI) was sought from the SRA but before the scheme could be approved by SRA it had issued notice to Indira Society. Finally, it is stated that the obstacle was removed and the scheme of the petitioner was approved by the SRA. However, Indira society, not being satisfied with the scheme and in its attempt to dislodge the petitioner, raised several objections and obstacles. Ultimately, the lease in favour of the Trust was also terminated. In the meanwhile, Indira society approached Slum Tribunal which had passed an order, which although challenged, the same is ultimately, not pressed. 8] It is not necessary to advert to the other facts, inasmuch as Mr.Thakkar, learned Senior Counsel on behalf of respondent No.5 raised a preliminary objection to the maintainability of this petition. He pointed out that the conduct of the petitioner is such that this Court should not grant him any equitable and discretionary relief. Mr.Thakkar submitted that the petitioner has suppressed relevant and material facts from this Court. Mr.Thakkar submits that even if a constitutional challenge is raised, ultimately, if the conduct of the party approaching the court is not 6 honest and truthful and is not above board, then, the Court is not obliged to go into such challenge. Mr.Thakkar has invited our attention to the affidavit in reply filed on behalf of respondent No.5 and contended that this petitioner had earlier filed W.P.No.2284 of 2007 in this Court against State of Maharashtra, S.R.A. And Ors., inter alia, for the following reliefs:- “(a) by an appropriate writ, order or direction of this Hon’ble Court the impugned grant of approval to the Rehabilitation Scheme submitted by respondent Nos. 7 to 11 to respondent Nos. 3 to 6 as regards the Plot Nos.88 to 104 Town Planning Scheme, CS No.33, 35, 65, 66 and 41 Worli Scheme 58, Worli, Mumbai be cancelled; (b) by an appropriate writ, order or direction of this Hon’ble Court all the concerned officers of respondent Nos. 3 to 6 be dealt with from granting impugned grant of approval to the Rehabilitation Scheme submitted by Respondent Nos. 7 to 11 to respondent Nos. 3 to 6 as regards the Plots No.88 to 104 7 Town Planning Scheme SC No.2.33, 35, 65, 66 and 41 Worli Scheme 58, Worli, Mumbai on the basis of false, forged and bogus affidavits and individual agreements of the slum dwellers of the said plots submitted by respondent Nos. 7 to 11; (c) by an appropriate writ, order or direction of this Hon’ble Court respondent Nos. 7 to 11 be dealt with for submitting false, forged and frivolous affidavits and individual agreements of the slum dwellers as regards plot Nos. 88 to 104 Town Planning Scheme C.S. 33, 35, 65, 66 and 41 Worli scheme 58, Worli, Mumbai for the grant of approal to the rehabilitation scheme submitted by them to respondent Nos. 3 to 6 and on the basis of false, forged and bogus affidavits and individual agreements of the slum dwellers of the said plots obtained the approval to the said scheme.” 9] In that writ petition all the contesting parties filed their affidavits and it was placed for admission before the Division Bench of this Court, 8 who after hearing both sides by its order dated 5th December 2007 held that the controversy in the writ petition is essentially required to be decided by High Powered Committee constituted by the Government of Maharashtra in furtherance to the Full Bench Judgement and order passed by this Court in the case of Tulsiwadi Navnirman Cooperative Housing Society, reported in 2007 (6) Mh.L.J. 851 (for short Tulsiwadi). The Division Bench directed the present petitioner to approach High Powered Committee and further directed the High Powered Committee to decide the petitioner’s case in accordance with law. The petitioner, thereafter, filed Appeal No.3 of 2007 before the High Powered Committee. He filed affidavits and compilation of documents and even the contesting parties filed their replies. Several hearings were held before the High Powered Committee and the matter was adjourned. However, when the matter was before the High Powered Committee on 4th April 2009, an adjournment was sought on the ground that the petitioner is not present, his advocate is not present but one office bearer produced a copy of the letter written to the Committee seeking adjournment on the ground that a Notice of motion being Notice of Motion No.78 of 2009 is pending in this Court. That is a notice of motion in Writ Petition No.1762 of 2006 and in that 9 notice of motion, the petitioner herein prayed for stay of hearing before the Committee. In the light of this request, the High Powered Committee adjourned the matter to 9th April 2009 and on 9th April 2009, both the petitioner and Advocate were absent before the Committee. The Committee was informed by the petitioner’s same representative that the present petition is filed and that is listed before the Full Bench at 3.00 p.m. On 9th April 2009. Therefore, he sought an adjournment. Our attention was also invited to a notice of motion being Notice of Motion No.36 of 2009 seeking recalling of the order dated 5th December 2007 in W.P. 2284 of 2007. This petition was filed by the petitioner himself and which came to be disposed of by the Division Bench with the aforesaid observations and directions. When this notice of motion was placed before a Division Bench of this Court on 2nd February 2009, it was of the view that the motion is not maintainable. Therefore, the notice of motion came to be withdrawn with liberty to file appropriate proceedings. Mr.Thakkar submits that when the petitioner has not challenged the order dated 5th December 2007 in his own petition by approaching the Hon’ble Supreme Court and instead he abided by the said order and filed an appeal before the Committee, submitted to its jurisdiction, then, he cannot 10 now turn around and challenge its constitution by impugning the subject GR. More so, when even the review/ recall of the order dated 5th December 2008 is not pressed. 10] Mr.Apte, learned Senior Counsel appearing for petitioner on the other hand contended that the petitioner is not estopped in law from challenging the GR inasmuch as what the petitioner is challenging is setting up of the High Powered Committee by the Government itself. Mr.Apte submitted that the Constitution of the Committee and challenge to the GR is a relief which can never be sought before the Committee. The Committee is a creature of the GR itself. It cannot decide the issue of the legality and constitutionality of the GR. Once it is set up under this GR itself, then, the challenge to the GR is a question which cannot be decided by the Committee. Therefore, this petition is maintainable. 11] Mr.Apte further submitted that the challenge to the GR arises in the backdrop of the Constitutional provisions outlining the separation of powers between Legislature, Executive and Judiciary. Mr.Apte submits that in the garb of resolving the conflict between the two judgements of 11 two different division benches of this Court and considering the ambit and scope of the powers of the State Government vide section 3K of the Slum Act, this Court cannot take upon itself the Legislative powers. This Court cannot direct setting up of any Monitoring Agency or committee. This Court cannot in the absence of any amendment to the Legislation by the Competent Legislature direct that disputes and differences between several parties to a SRA scheme should be decided by a Committee and confer upon the committee judicial powers. This is a clear case where this Court has usurped the powers of the Legislature and in any event, by appointing the Committee, it has taken over the executive function. Assuming that such a committee can be set up by the State Government under Article 162 of the Constitution, yet, the GR itself states that the Committee is set up, pursuant to the directions of this Court in the Full Bench decision. Therefore, the constitution of the Committee is bad in law and challenge to the same is, therefore, maintainable. 12] Mr.Apte has relied upon several decisions of the Supreme Court on the ambit and scope of Article 50 of the Constitution of India and the Doctrine of Seperation of Powers. Mr.Apte has also invited our attention 12 to the relevant paras of the Full Bench judgement in Tulsiwadi case and contended that the same would demonstate that it is this Court which directed setting up of a Committee and it is not the Act of the Government. Therefore, this petition be allowed. 13] Mr.Nargolkar, learned A.G.P., appearing on behalf of the State contended that the Committee is not set up pursuant to the directions of this Court in the Full Bench decision. The GR may be referring to the observations and directions but that is a preface. The decision to set up a Committee is taken by the Government itself. It is the Government’s decision to set up a committee and it may be that the Government has taken into consideration the observations and directions in the Full Bench decision. In any event, it is not the directions of the Full Bench which led to the constitution and setting up of the Committee. The Full Bench recorded a statement of the learned Advocate General appearing that the State would set up a monitoring agency / High Powered Committee comprising of officials from concerned and relevant statutory bodies. Once the statement is made by the Advocate General, then, the State is bound to abide by it. Any statement of the Advocate General is binding 13 on the State. The GR is, therefore, nothing but a decision of the Government in exercise of its Constitutional Powers, setting up the Committee and outlining its duties and powers. Therefore, when wide powers are conferred on the State under the Slum Act to set up such a Committee and even otherwise its executive powers permitting it to do so, then, the petitioner cannot be heard to say that the GR is bad in law, unconstitutional, null and void. The mechanism in the form of a committee is devised and set up pending suitable amendment to the Legislation and, therefore, the State was competent to issue the GR setting up the Committee. 14] We have carefully considered these submissions. We have also perused the petition, its annexures, relevant statutory provisions and the decisions brought to our notice. As is evident from the orders passed on this petition, the entire petition is referred to the Full Bench. The order dated 18th March 2009 does not frame any specific question or refer a particular issue for decision by a larger bench. All that the Division Bench states is that the present petition raises a challenge to the GR setting up High Powered Committee and, therefore, it is appropriate that 14 the matter is placed before the very same Full Bench. In such circumstances and in the light of our order passed on this petition, the petition is taken up for admission by consent of parties. 14] From a perusal of the petition and the annexures thereto so also the affidavits placed on record we find much substance in the preliminary objection of Mr.Thakkar. While it is true that a party is not estopped from challenging an action or decision of the State on the ground that it violates a constitutional provision, merely because it abides by or acts in furtherence of such action or decision, yet, in the peculiar facts of this case, we are of the opinion that the challenge to the constitution of High Powered Committee and the GR dated 15th November 2007 cannot be entertained at the instance of this petitioner. This petitioner had filed Writ Petition No.2284 of 2007 in this Court and we have already reproduced the reliefs that are sought in the petition. When that petition was placed before the Division bench of this Court on 5th December 2007, the following order came to be passed:- “We have heard learned Counsel appearing for the parties at some length. We are of the considered view that 15 looking to the prayers made in this petition and the factual controversy raised by the parties, the present writ petition essentially has to be referred to the Committee constituted by the Government in furtherance to the Full Bench judgement of this Court dated 1st November 2007 in Writ Petition No.1326 of 2007 (Tulsiwadi Navnirman Coop., Housing Society Ltd. & Anr Vs. State of Maharashtra & Ors) and other connected writ petitions. Thus, we direct the petitioner to approach the Committee within two weeks from today and the Committee shall proceed and decide the matter in accordance with law after hearing all the affecting parties. We do hope that the Committee do so expeditiously.” 15] The aforequoted order of the Division Bench refers to the Full Bench decision dated 1st November 2007 in W.P. 1326 of 2007 and connected matters (Tulsiwadi) and constitution of High Powered Committee in furtherance of this decision. The Division Bench directed the petitioner to approach, within two weeks from the date of this order, the High Powered Committee. It further directed the Committee to decide the matter in accordace with law after hearing all affected parties. Thus, the dispute raised by the petitioner on merits and the entire factual controversy in W.P.2284 of 2007 was referred for decision to this Committee. This Court was of the opinion that the controversy being factual the matter can be resolved by the Committee. The petitioner 16 accepted this decision. He acted in pursuance thereof and approached the Committee by filing Appeal No.3 of 2007. The petitioner not only appeared before the Committee but filed documents and affidavits. The Committee issued notices to all affected parties and even called for their response. The Committee was proceeding with the appeal and in the midst of the same, the petitioner sought adjournment and filed, firstly the notice of motion bearing No.36 of 2009 seeking recall of the order of the Division Bench and subsequently filed a notice of motion being Notice of Motion No.78 of 2009 in W.P.No.1762 of 2006. He withdrew the request to recall the division bench order. In other words, he withdrew the Notice of Motion No.36 of 2009 in W.P.2284 of 2007. There is a writ petition filed by Birla Industries Group Charity Trust versus State, SRA and others. Respondent No.7 in that petition is the present petitioner. He sought relief that during the pendency and final hearing of the present petition, the proceedings before the Committee be stayed. It is pointed out to us that the notice of motion No.78 of 2009 is pending before this Court. That is a notice of motion moved by the present petitioner in February 2009 and to be precise on 16th February 2009. The instant petition is filed in this Court on 6th March 2009. In the memo of this 17 petition, the petitioner has not disclosed that he has moved the aforementioned notices of motions. He states nothing, beyond annexing a copy of the order dated 5th December 2007 in his own writ petition No. 2284 of 2007. 16] Even if the constitutional challenge is raised, the conduct of the party raising it is a relevant factor. If the conduct is of such a nature as would disentitle him from invoking the discretionary and equitable jurisdiction of this Court under Article 226 of the Constitution of India, then, at his instance, the constitutional challenge need not be considered. This Principle is fairly well settled. (See Pannalal Binjraj Vs. Union of India, A.I.R. 1957 SC 397 and Chancellor Vs. Bijayanand Kar, A.I.R. 1994 S.C. 579). It is equally well settled that a person who has received a benefit under a statute is not entitled to challenge its Constitutional validity (See A.I.R. 1953 S.C. 384 Nain Sukh Das Vs. State of U.P). Further, the Jurisdiction of High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. (See A.I.R. 1975 SC 1121 Har Shankar Vs. Dy.Excise and Taxation Commissioner) The Petitioner does not dispute 18 that this petition is filed invoking article 226 of the Constitution of India. The petitioner does not dispute that when his earlier petition No.2284 of 2007 came up before the Division Bench on 5th December 2007, both the Full Bench decision and the GR was in the field. The petitioner does not dispute that despite this, he did not challenge the GR and instead accepted the decision of this Court to approach the Committee set up in pursuance of this GR. Therefore, he on his own submitted to the jurisdiction of the Committee and abided by the decision of this Court. That decision has gained finality because the order dated 5th December 2007 passed by this Court, has not been challenged further. Even the request to recall or review it is not pressed. In such circumstances, the petitioner cannot turn around and in the garb of a constitutional challenge, seek to resile from the binding decision and order of this Court. The order dated 5th December 2007 binds the petitioner, to say the least. Having been bound by it, at his instance, the challenge to the GR dated 15th November 2007 cannot be entertained. More so, when the petitioner has suppressed withdrawal of his notice of motion for recalling/ reviewing the order of the Division Bench in W.P.No.2284 of 2007. Further, he suppressed filing of Notice of Motion No.78 of 2009 in the pending writ petition of 19 the respondent No.4 to this petition, viz., W.P. 1762 of 2006. The prayers in that motion and the present prayer for stay in this petition is identical. In such circumstances, the petitioner has suppressed relevant and material facts from this Court. 17] One very disturbing factor in this case is that the present petitioner has filed his earlier petition on the Original Side of this Court. The present petition has been filed by him on the Appellate Side. It is clear from the Rules that this Court can take cognisance of a writ petition under Article 226 in its Civil Appellate Jurisdiction, if the cause of action arises outside Greater Mumbai. In the instant case, on the own showing of the petitioner the cause of action has arose within Greater Mumbai. The subject matter of the writ petition is an immovable property at Greater Mumbai. All respondents are amenable to the Ordinary Original Civil Jurisdiction of this Court. Therefore, the writ petition could not have been filed on the Appellate Side. A very serious complaint is made by Mr.Thakkar against the petitioner of forum shopping. This also cannot be over looked. The petitioner has no explanation for such an act on his part. He offers no explanation save and except urging that there is no 20 estoppel against constitution and law. However, once we find that the petitioner’s conduct is blame worthy and the present proceedings are nothing but an absue of the process of this Court, then, we would be failing in our duty if we do not proceed to dismiss this petition by upholding the preliminary objection of Mr.Thakkar. 18] The Writ petition is accordingly dismissed. 19] Even otherwise, from the record it is clear that the State Government has set up the Committee not only because of the observations of the Full Bench but on account of its own statement before this Court. Mr.Nargolkar is right in his submissions that the statement of the learned Advocate General, made on instructions, binds the