Case: JAWED URDU PRIMARY SCHOOL THROUGH ITS SECRETARY Vs. COLLECTOR OF MUMBAI

the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writ petition. 9.2 At the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/or arbitrary. 9.3 Respondent No. 4 is relying upon its first application dated 11.06.2001 in support of its case that they applied for the land in question for setting up a primary school. However, considering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primary school. At this stage, noting on the file of the Revenue Department dated 22.09.2004 deserves to be noted, which reads as under:?22-09-2004 The Education Department has not received any proposal from the Nasheman Education Welfare Society about starting a school. Further, even a permission has not been given to the society for a primary school at the place in question. However, please see the order of the Hon?ble Chief Minister on page 73/TV. Pursuant thereto there should be no objection for the Finance Department to concur.?Therefore, considering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality. 10. As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Heard the learned Counsel appearing on behalf of the respective parties at length. We have perused and considered in detail the material on record, more particularly, the applications/representations made by the appellants as well as the correspondence/representations/applications made by respondent No.It is not in dispute that the land in question is reserved for the primary school in the development plan. It is the case of behalf of the appellants as well as respondent No. 4 that both of them applied for the land in question for establishing the primary school. It is required to be noted that the applications for allotment of the land were required to be made in Proforma-A. Relying upon the representations/applications/communications, right from 25.07.2001, and the subsequent correspondences on record, it is the case on behalf of the appellants-original writ petitioners that they made the application for allotment of the land in question specifically for establishing the primary school. On a bare reading of the application dated 25.07.2001 made by the appellant-Trust, it appears that the said application cannot be said to be made specifically for a primary school. In the application dated 25.07.2001, the appellant-Trust requested for allotment of the land in question by stating that the land in question is reserved for the school or for such purposes by the Government of Maharashtra and the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writAt the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/orconsidering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primaryconsidering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality.As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality.