IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10640 OF 2000 SUO MOTU vs. STATE OF GUJARAT & ORS. WITH CIVIL APPLICATION No. 11020 OF 2000 SUMANGALAM BUILDING OCCUPIER'S ASSOCIATION vs. SUO MOTU WITH CIVIL APPLICATION No. 788 OF 2001 ICICI BANK LIMITED vs. STATE OF GUJARAT & ORS. WITH CIVIL APPLICATION No. 853 OF 2001 HDFC BANK LIMITED vs. STATE OF GUJARAT & ORS. WITH CIVIL APPLICATION No. 962 OF 2001 KAMLESH P. SAVALIYA & ORS. vs. SUO MOTU & ORS. WITH CIVIL APPLICATION No. 963 OF 2001 RAJNIKANT J. MEHTA & ORS. vs. SUO MOTU & ORS. WITH CIVIL APPLICATION No. 966 OF 2001 KAMINIBEN VAMANBHAI BAROT & ORS. vs. SUO MOTU & ORS. WITH CIVIL APPLICATION No. 967 OF 2001 MANEKCHAND C. SADHU & ORS. vs. SUO MOTU & ORS. WITH CIVIL APPLICATION No.1219 OF 2001 SHASHANG INFRASTRUCTURE PVT. LTD. vs. STATE OF GUJARAT & ORS. WITH CIVIL APPLICATION No. 1287 OF 2001 SHASHANG INFRASTRUCTURE PVT. LTD. vs. STATE OF GUJARAT & ORS. For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SUO MOTU Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: SPECIAL CIVIL APPLICATION No.10640 OF 2000 MR SB VAKIL for learned Amicus Curiae SUO MOTU for Petitioner No. 1 MR ARUN D OZA GOVERNMENT PLEADER for Respondent No. 1 NOTICE SERVED BY DS for Respondents No. 1,6-7-11 SINGHI & CO for Respondents No. 2-3,21,23 M/S TRIVEDI & GUPTA for Respondent No. 4 MR DN PATEL for Respondent No. 5 MR MD PANDYA for Respondent No. 8 MR AMIT M PANCHAL for Respondents No. 9,25 MR PC KAVINA for Respondents No. 10-11,15,17,22,29 MR KETAN A DAVE for Respondents No. 12-14,16,18,26-27,30 MR BS PATEL for Respondents No. 19-20 MRS RANJAN B PATEL for Respondents No. 19-20 MR RJ GOSWAMI for Respondents No. 24 MR PK JANI for Respondents No. 25 MR MEHUL H RATHOD for Respondents No. 27,28 MR S TRIPATHY for Respondents No. 27 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE RAVI R.TRIPATHI Date of decision: 26/04/2002 C.A.V. JUDGEMENT (Per : MR.JUSTICE B.C.PATEL) [ #. After conclusion of hearing, judgment in the matter was reserved, and dictation and typing of the judgment was in progress. However, in the meanwhile, Ms. Gauri Kumar filed a Civil Application No. 12100 of 2001 and we could not proceed further and complete the judgment. Since this Bench is assembling only for half of a day on some Fridays for taking up specially assigned matters, the aforesaid application could be disposed of only on 19th January 2002. Hence some delay in completing the judgment occasioned, and after disposal of the aforesaid Civil Application, we thought it fit to proceed with the judgment in this matter in the open Court. Thereafter, certain portions of this order were dictated in the open Court. Due to lack of time on account of pressure of the regular court work, the matter was again kept as C.A.V. and is pronounced today. In this complex situation, the date of this judgment shall be deemed to be the date of pronouncement of the judgment.] GENESIS OF THIS PROCEEDINGS: #. Xerox copy of a Government file, including various confidential letters, along with a forwarding letter purported to have been signed by one Piyush Soni, was forwarded to this Court by Speed Post. The subject matter of the file was irregularities and illegalities in connection with allotment of land to Sumangalam Co-Operative Housing Society. The Court (Coram: B.C. Patel & C.K. Buch, JJ.), which was taking up Public Interest Litigation at the relevant time, after perusing the file minutely, passed an order on 6.10.2000, excerpting certain portions from the file and issuing notice to the Chief Secretary, returnable on 16.10.2000. On the returnable date, i.e. on 16.10.2000, a request for time was made by learned Additional Advocate General Mr. Shelat (as he then was). The Court, while granting the time, also issued notice to the Chairmen and Secretaries of the three Societies, Ahmedabad Urban Development Authority (AUDA, for brevity, hereinafter), Registrars of Co-Operative Societies, Gandhinagar and Ahmedabad and to certain IAS Officers. #. On behalf of the Government, Chief Secretary filed an affidavit dated 10.11.2000 and did not deny the authenticity of the excerpts in the order dated 6.10.2000 but the tenor of the affidavit indicated that what is conveyed to the Court through the xerox copy of the entire Government file is correct and the Government itself made certain efforts to unearth the scandal and inspite of repeated efforts even after once closing the file on a note prepared by the General Administration Deptt. (page 17), the file was re-opened, but the efforts could not fructify. Ultimately, the Chief Secretary in his affidavit stated that the Government "will abide by the orders that may be passed by this Honourable Court" and "all necessary files and record will be made available to the Hon'ble Court for perusal". In the circumstances, the Court decided to proceed further with the matter. INTERLOCUTORY ORDER OF THE HIGH COURT ON 16.11.2000 [#. This Court passed the following interim order on 16.11.2000: "In view of what is stated hereinabove, apart from the directions contained in the text of this order hereinabove, we would like to pass the following interim order at this stage. (1). Notice be issued to all the plot holders, to be served through the Secretary of the respondent No.4 Society. (2). State is directed to place on record the relevant material pertaining to the plots allotted at Gandhinagar to the officers who are members of the Respondent No. 4 Society. (3). The buildings, which are constructed and are not in occupation, shall be sealed by AUDA with immediate effect. (4). So far as the buildings which are erected and are being used for residential purposes, the members of the Respondent No.4 Society shall place before the court the nature of transfer of possession. If the property is given on rent or on lease or is transferred, the amount of rent shall be deposited in a separate bank account to be opened by AUDA in a nationalized Bank and it shall deposit the amount so collected in the Bank Account. The Bank, on the amount being deposited, shall automatically invest it in a recurring Fixed Deposit for 46 days till further orders. We shall pass further orders for the properties which have been transferred in any mode other than rental, lease etc. after the details are placed before us by the concerned members. (5). So far as the buildings which are used for the purposes other than residence is concerned, it is directed that on the expiry of the period of notice issued by AUDA if the occupiers on their own do not stop its use, AUDA shall seal the premises. (6). As regards the plots on which no construction is made, no one shall carry out any construction without the permission of this Court. AUDA shall not permit any construction without the permission of this Court or till further order in this regard is passed by this Court. (7). So far as the buildings, which are under construction, are concerned, AUDA shall place a report before this Court indicating the nature and stage of the construction. (8). District Registrar of Co-Operative Societies, Ahmedabad and Gandhinagar are directed to place before this Court as to what action they intend to initiate against the members of these Societies, who have filed affidavits before them. The report shall be filed within a period of 15 days from today. (9). The Respondent No.4 Society is directed to produce bye laws of the Society. (10). The Respondent No.4 Society is directed to give details of its members at the time of its inception. (11). The Respondent No.4 Society shall also furnish details as to when the persons who were not members initially, became members. (12). The Government and AUDA to produce application made by Respondent No. 4 Sumangalam Cooperative Society (Bodakdev) under section 20 of the Urban Land Ceiling Act and for allotment of land respectively. They shall also indicate as to in absence of any application, whether all the aspects were taken into consideration for determining the quantum of land to be allotted to the society in question, and if so, what were those aspects which were considered. As is born out from the record, AUDA had allotted 16571 sq. mtrs. of land on 1.3.1990. (13). The authorities shall also submit in detail as to what are the criteria followed by the authorities for determining the quantum of land to be allotted in such cases." #. The matter was carried to the Supreme Court and the Apex Court, (Coram: V.N. KHARE & SANTOSH HEGDE, JJ.) on 4.12.2000 passed the following orders: "Permission to file SLP is granted. Heard counsel for the parties at length. It is not disputed that the High Court is seized with the matter. The directions that are impugned in these petitions are interlocutory in nature and final order would be passed after the opportunity to the persons who are likely to be affected by our order that may be passed finally. We are, therefore, not inclined to interfere with the direction Nos. 1,2,4,6 to 13. So far as direction Nos. 3 and 5 are concerned, they would remain suspended till the matter is heard and final order is passed by the High Court. However, so far direction No. 3 is concerned, the building may not be sealed, but the owners of such building shall not use the building for commercial purposes hereafter. We are also of the view that the High Court may direct for sending notices to those persons who are likely to be adversely affected by supplying the materials which it seeks to rely, if not send already. This order of ours suspending direction Nos. 3 and 5 shall ceased to have effect as and when any final order is passed by the High Court. Further it may be clarified that this order shall not come in the way of the High Court in passing any order that it may deem fit in the facts and circumstances of the case. With these directions special leave petitions are disposed of."] PUBLIC NOTICE - SUMMONS & QUESTIONS FOR DECISION: #. In this matter, a public notice was published on 23rd December 2000 in two leading newspapers, one English and one Gujarati, published from Ahmedabad calling upon all the members of the Respondent No. 4 Society / allottees of the plots / occupiers of the plots and superstructures put upon the plots, to appear before the Court and file all necessary documents on or before 9th January 2001, either personally or through an advocate duly instructed to argue the case, when the Court will, amongst other questions, decide the following questions. (1). Possession taken by the Respondent No. 4 Society in the name of Sumangalam Co-Op. Society, Bodakdev, Ahmedabad, by using almost similar name to that of Respondent No.2 and without disclosing this fact - whether it is in accordance with law, and if not what order? (2). Whether the permission granted by AUDA to develop the land is in accordance with law or not, and if not, what order? (3). Transfer of plots - Apart from the fact that it was obtained contrary to the provisions of law, can it be subsequently transferred? Assuming for the sake of arguments that it was in accordance with law, then, in view of the lease deed, whether it can be said that the transfer is contrary to provisions of law or not, and if so, what order. (4). Whether earlier judgment in Special C.As. No.3082/91, 3781/91 was obtained by practising fraud or by suppressing relevant and material facts by the respondent No.4 Society or not, so as to render the judgment not binding? (5). At the relevant time, Chairman of AUDA was a member of the Respondent No.2 Co-Op. Society registered at Gandhinagar; Office bearers of the Society were allotted plots at Gandhinagar; Still they made demand of plots at Ahmedabad and obtained the same from AUDA. Can this be said to have been obtained by undue influence and by playing fraud or not, keeping in mind that :- - in the earlier proceedings it was never disclosed before the Court that the plots shall be used for the purpose of construction of offices or other commercial purposes; on the contrary it was disclosed that the plots shall not be used for purposes other than residence; and, - the members were allotted plots at Gandhinagar, and , - possession of the land was not taken by the Society to which AUDA allotted the land, and, - it was never disclosed before the Court that there were three different Societies in existence and the plots in question were allotted to Respondent No.2 Society and not to Respondent No.4 Society. (6). Assuming that the land could have been allotted to the members of the Respondent No. 4 Society, then as per Government resolution, each member was to be allotted a plot of land admeasuring 200 sq. mtrs. and not more, keeping in mind the policy of the government at the relevant time. In violation of the resolution, plots were allotted. In any case, Respondent No. 4 Society and its members were required to fill in Form No. 6 for exemption under the provision contained in Urban Land (Ceiling & Regulation) Act. However, one of the member of Respondent No.4 Society, working in the relevant department as Secretary, put up a note that the form is not required to be filled in. Thus, the breach has been committed by not filling the form and by taking land in excess of 200 sq. mtrs. What is the effect of it in the eyes of law in the present case? (7) Whether AUDA has passed any resolution for grant of lease in question to Respondent No.4 Society, if not, what order? (8) Whether the Respondent No.4 Society obtained the lease from AUDA by misrepresentation and fraud? (9) Whether the allotment of the plots by the Respondent No.4 Society to its members are in contravention of the provisions of the Gujarat Co-Operative Societies Act, 1961 and the Urban Land (Ceiling & Regulation) Act, 1976 and order of exemption under sec. 20 passed thereunder? (10) Whether Respondent No.4 Society and its members have acted in breach of the terms and conditions of the lease and the lease is liable to be cancelled? (11). Whether breach of provisions contained in Co-Operative Societies Act is committed, and whether affidavits filed before the authorities contain correct averments? If not, what order? MUDDLING NAMES OF THREE SOCIETIES #. Three Societies having almost similar names, formed by top ranking I.A.S / I.P.S. Officers are involved in the present case. Some persons are common members in all the three Societies. The details regarding the three Societies are as under: (i). The Sumangal Co-Op. Housing Society Limited, Gandhinagar - having registration No. 9675 dated 10.10.1986. This Society is hereinafter referred to as the respondent No.2 Society. Registration of this Society was cancelled on 9.12.1996 [page 21]. The following persons were the promoters at the time of registration of this Society [page 389] :- 1. Sudhir Mankad 2. Ms. Anuradha Mansingh 3. C.J. Jose 4. S. Jagadeesan 5. D. Kishore Rao 6. P. Paneervel 7. B.P. Meena 8. G.C. Raigar 9. Smt. Sudha Anchalia 10. Balwant Singh 11. K.S. Sugathan 12. A. Prasad A list containing names of the members of the Respondent No.2 is at pages 108 to 110 - having 77 members, which is supplied to AUDA (see page 63). Another list of members as on 10.10.1986 of the Respondent No.2 Society is at pages No.390 to 392 having 94 members. (ii). The New Sumangal Co-Op. Housing Society Limited, Taluka Daskroi, Ahmedabad having registration No. 13338 dated 22.5.1989. This Society is hereinafter referred to as the respondent No.3 Society. Registration of this Society was cancelled on 9.12.1996. The following persons are the members of this Society (page 360): 1. S. Jagadeesan 2. Gauri Kumar 3. D.J. Pandian 4. R.D. Tamhane 5. K.V. Joseph 6. K.V. Bhanujan 7. K. Kumarswamy 8. C.P. Singh 9. Surendra N Sinha 10. C.J. Jose 11. C.I. Joy 12. A.K. Pradhan 13. A. Prasad 14. B.K. Bakshi 15. T.C.A. Rangadurai 16. Maheshwar Sahu 17. R.K. Tripathi (iii). Sumangalam Co-Operative Housing Society Limited, Bodakdev having registration No. 14292 dated 5.7.1990. This Society is hereinafter referred to as the respondent No.4 Society. The following persons were the promoters at the time of registration of the society [page 489]. 1. S. Jagadeesan 2. A. Prasad 3. C.J. Jose 4. M. Sahu 5. D.J. Pandian 6. K.V. Bhanujan 7. A.K. Pradhan 8. R.D. Tamhane 9. S.N. Sinha 10. R.K. Tripathi A list containing additional 25 names of its members as on 13.9.1990 is at pages No.490 and 491. Another list containing additional 19 names (five persons as on 13.9.1990 and 14 persons as on 13.4.1992) is at page 492. FACTUAL MATRIX : #. Shri C.J. Jose, as President of Respondent No.2 Society addressed a letter (undated) to AUDA (page 446) stating that the Society (Respondent No.2) "is a housing co-operative of Government employees mostly of the Gujarat Govt. Eventually about 100 Govt. employees of various categories would be members of the Society". As it appears from the Rubber Stamp on the said letter, the said letter was received by AUDA on 16th July 1987. It is requested in the said letter that the respondent No.2 Society may be allotted land admeasuring 6651 sq. mtrs. from F.P. No.707 TPS Bodakdev, 12514 sq. mtrs. land from F.P. No. 695 TPS Bodakdev, 8693 sq. mtrs. of land from Survey No. 189 and 190 from TPS Vastrapur, 9208 sq. mtrs. from survey No. 199 TPS Vastrapur. It was also requested in the said letter to fix the rate of the land at Rs.300/- per sq. mtrs. On the said letter, Chairman of AUDA (Shri A. Prasad) put up a note, which reads as under: "Please process this application. We may place this before the Board on 8/87. The consideration may: (1). No sale for 5 years after purchase. (2). Only confirmed Government officers can get. (3). Those who already own homes in the certified area (as per PWD Norms) will not be entitled. (4). Construction should be completed in two years as per AUDA regulations. (5). The land may allotted having 15% administration charges development charges. (6). Plot will be of 150 sq. mtr. size as the Society wants tenement to be constructed. Sd/- 16/7 Chairman" #. On 21st July 1987, another letter was addressed by the President of the respondent No.2 Society to AUDA (page 447) stating that "eventually about 150 Govt. employees of various categories would be members of the Society" and requested for allotment of freehold land for housing. It is further indicated in this letter that "each member would have 150-200 sq. mtrs. land". It is also requested in the letter to "kindly fix the rates for the land at or around Rs.300.00 per sq.mtr.". #. On 24th November 1987 another letter is addressed by the said Shri Jose to AUDA (page 448) and it is stated as under: "the Society is going to have about 100 members. Consequently it will not be possible for us to accommodate every member in the land at bearing survey No. 696 or in the land offered to us by your letter dated 24.11.87. We understand that T.P. Plot 695 is designated for neighbourhood centre which would admit variety of uses like garden, play ground, library etc. We request that we may be granted 4000 sq. mts. of this land on condition that part of this land is used for purposes within the meaning of neighbourhood centre". #. Another letter was addressed by Shri C.J. Jose as Chairman of the respondent No.2 Society on 24.11.1987 (page 449) wherein it is indicated as under: "The Sumangal Co-Operative Housing Society is prepared to purchase land bearing Survey No. 189 and 190 (Part) and survey No. 199/1, 2, 3 of Vastrapur at the price indicated by you." #. Another letter is addressed by the said Shri C.J. Jose on 24.11.1987 as Chairman of the respondent No.2 Society to AUDA (page 450) wherein it is stated as under: "We have been offered land bearing Survey No. 180 and 190 (part) and Survey No. 199/1, 2, 3 of Vastrapur village and land is valued at Rs.602 to 700 per sq. mtr. .... .... .... We were told that AUDA would be granting us land bearing Survey No. 707 of Bodakdev T.P. Scheme. However, it is understood now that this land is not likely to be available to us due to zone restriction. We therefore request you to allot us TP Plot No.696 of Bodakdev near Drive-in Cinema." #. Ultimately, in the year 1987, to be precise on 9.12.1987, a decision was taken by AUDA to allot land to the respondent No. 2 Society. Copy of the resolution No. 59 (87-88) dated 9.12.1987 passed by the Land Committee of AUDA is produced before the Court by learned counsel for AUDA (page 564). Reading the same, it appears that AUDA took a decision to allot lands bearing Survey No. 189, 190 Paiki of Vastrapur admeasuring 8693 sq. mtr., Survey No. 199/1/2/3 of Vastrapur admeasuring 9208 sq. mtr and Bodakdev Final Plot No. 694 admeasuring 2739 sq. mtr., F.P. No. 695 admeasuring 12516 sq. mtr and F.P. No. 696 admeasuring 5239 sq. mtr. on lease for 90 years. The land was to be allotted subject to certain terms and conditions, and the price was to be determined by the Chief Town Planner. The decision has been communicated to the President of respondent No.2 Society vide letter No. Estate/Vashi/2267/16836 dated 10.12.1987 (page 566). By two different letters dated 16.6.1988 and 21.7.1988, Shri C.J. Jose, Chairman of the respondent No.2 Society made representations to reduce the rates. Thereafter, on 16.6.1989, the respondeat No.2 Society made a payment of Rs.6,65,000/-, vide AUDA's receipt No.38302 dated 16.6.1989 (page 571). ##. The respondent No.2 Society did not comply with the conditions except making nominal payment of Rs.6,65,000-00 on 16.6.1989, and therefore, in its 118th Board Meeting held on 07.10.1989, by resolution No. 50(89-90), AUDA resolved to refund the amount deposited by the respondent No. 2 and to dispose of the lands by pubic auction (page 557 & 572). Subsequently, AUDA made an order dated 1.12.1989 to refund the amount to the Respondent No.2 Society (page 576). Thereafter, the respondent No.2 Society, clearly mentioning its registration No. 9675/86 made an application (page 577) on 21.12.1989 signed by S. Jagadeesan requesting to reconsider the price and allot the land in response of cancellation of allotment. It is further stated in the said letter that the Society bearing registration No. 9675/86 has paid the amount of more than Rs.6 lakhs and therefore they have preferential right over the land. Pursuant to this, AUDA in its 119th Board meeting, held on 19.1.1990 vide resolution No. 63 (89-90) [page 580] reconsidered its earlier decision and decided to allot Final Plots No. 694, 695 and 696 Bodakdev TP Scheme No. 1/B, admeasuring 16,571 Sq. Mtr. land to the Society which applied to reconsider its earlier decision, i.e. respondent No.2 Society. The said decision was communicated by AUDA by letter No. Estate/Vashi/267/1578 dated 1.3.1990, (page 581-2). Pursuant to this reconsideration, the Society paid a sum of Rs.1,03,85,000-00 by Cheque No. 1426322 of State Bank of Saurashtra (page 583) and AUDA issued its receipt No.