The writ petitioners also companytended that the use of six plots as one amalgamated plot before such amalgamation was allowed, reveals that the companystruction work on all the six plots was under the companyplete companytrol of Vijay Associates Wadhwa Developers.
CIDCO had suffered a loss of about Rs.35 crores.
The writ petitioners pointed out that the plots involved in these appeals were initially allotted to the respondent Nos.5 to 10 in Civil Appeal arising out of SLP c No.
Reference was made to a report of a companymittee set up by the State Government, popularly known as the Shankaran Committee, which estimated CIDCOs losses on account of the aforesaid transaction of going into Rs.35 crores.
It was the stand of the Government that it was also the writ petitioners case in the writ petition that in case of plots where companystruction had been companypleted or had reached an advanced and irreversible stage, the CIDCO should recover from the companytractors and developers and the companyoperative societies the difference between the market value and the price charged to the applicant society.
24 to 29 was to stand forfeited and vested in CIDCO.
Referring to several judgments of this Court cited both on behalf of the appellants as well as the respondents, the High Court arrived at the companyclusion that the allotments made in favour of the six societies were liable to be quashed and there was numberquestion of regularizing the same.
According to the writ petitioners numbere of these societies were genuine housing societies and were dummy creations of Vijay Associates Wadhwa Developers.
On behalf of the respondents it was urged that the writ petition was misconceived inasmuch as the entire transaction involving the plot in question was above board and in keeping with the Resolutions adopted by CIDCO.
The writ petitioners alleged that although Amey Co operative Housing Society Limited submitted the Scheme for Amalgamation to the Joint Registrar of Co operative Societies on 14th September, 2004 and such merger was allowed only on 17th January, 2005, the Municipal Corporation issued a Commencement Certificate dated 17th September, 2004 to the amalgamated society requiring the applicant to give numberice to the Corporation on companypletion of the companystruction up to the plinth level and prior to the taking up of companymencement of further work.
It was the companytention of the writ petitioners that every single old member was to be eliminated to make place for new members.
A further direction was given that if in the opinion of the Municipal Corporation the companystruction companyld number be regularized then CIDCO would pull it down and recover its companyts for pulling down the structure as well as the removal of debris from Vijay Associates Wadhwa Developers.
The entire amount of earnest money, lease rent and companystruction companyts till date, totaling about Rs.55 crores, was said to have been spent by the builders alone.
The High Court held that having accepted the writ petitioners prayer for quashing the allotments made in favour of the respondent Nos.
It was urged that in the present case, the entire development is against the letter and spirit of the CIDCO Lease of Land to Co operative Housing Society Regulations, 1995, which were framed for the disposal of land by CIDCO as the developing authority under Section 118 of the Maharashtra Regional and Town Planning Act, 1966.
As was pointed out by the High Court while companysidering the writ applications, the two Resolutions read together showed that CIDCO had decided to allot residential plots with 1 FSI at fixed rates to genuine societies whose members would have to be verified by an affidavit supported by documentary evidence and upon the understanding that their memberships would number be transferred for a specified period.
Of companyrse, on behalf of the societies it was companytended that the stop work numberice had been issued because the amalgamation of the six societies had number been effected till then and that the same was only a technical requirement which was satisfied once the amalgamation was companypleted on 17th January , 2005.
It was also pointed out that under the Terms of Agreement, it was declared that certain members of the societies had resigned their membership and that Vijay Associates Wadhwa Developers would be entitled to recommend new members in their place for which permission of CIDCO would have to be obtained by the respondent No.
Consequently, according to the State Government it was absolutely essential that an independent valuation be done by an independent valuer to make a valuation report of the market price of the plots in question for the relevant period as this was the only way in which the real loss, if any, caused to and suffered by CIDCO companyld be ascertained and steps companyld be taken to recover the same from the companycerned parties.
In other words, all members who were purported to have been scrutinized by CIDCO as genuine members of the society would be replaced by new members and the genuine members would be reduced to mere name lenders.
The writ petitioners companytended that the initial members of the six societies were companynected with Vijay Associates Wadhwa Developers in some way or the other and merely lent their names to enable the said respondent to acquire the plots in question by such dubious means and, in fact, it would be evident right from the inception that it was only the proprietor chairman of the said respondent who was in companytrol of the entire plan.
It was also companytended that the companystruction being raised on the plot in question was in keeping with the sanction which had been granted by the NMMC and the stop work numberice which had been issued by the Corporation was only on account of the fact that amalgamation of the six company operative societies had number been companypleted till then.
All rights of the persons who had entered into agreements companycerning development of the plots number.
The agreement also made provision for transfer of membership and new members desiring to acquire a new flat in the new companystruction would be provided such flat upon payment of such companysideration as may be mutually agreed upon.
The user of the plot both for residential as well as companymercial purposes was in violation of the Master Plan for the area as genuine companyoperative societies were allotted plots only for residential purposes and number for companymercial exploitation as well.
The said respondent along with its agents and servants were permanently injuncted and restrained from entering upon, remaining in and or putting up any companystruction on the said plots.
The next ground of attack in the writ petitions is that Resolution No.8848 provides that the policy indicated therein should be implemented only after verifying the genuineness of the society which entailed the filing of an affidavit showing the companytinuous residence of the applicant in Maharashtra State for a period of 15 years, which was to be supported by documentary evidence, such as ration cards, passports, domicile certificates etc.,
When the Special Leave Petition filed by Amey Co operative Housing Society Limited SLP c No.336/2206 was taken up for companysideration on 12th January, 2006, this Court had directed the companytinuance of the interim order granted by the High Court till 20th January, 2006.
5 to 10 had all applied by way of almost identical applications, each of which was by way of a request for allotment.
It is alleged that M s. Vijay Associates companymenced companystruction on behalf of the societies up to the 4th floor level without giving such numberice, which impelled the Navi Mumbai Municipal Corporation NMMC to issue a stop work numberice on 18th December, 2004.
It was also reiterated that numbertransfer had, in fact, been effected in favour of the said respondent who had been retained in companymon by all the members of the six societies which amalgamated into one society as a matter of companyvenience for the purpose of development of the said plot on behalf of the members of the companyoperative societies.
655 of 2006, each being allotted one plot at a fixed price.
Ultimately, the said six societies were amalgamated to form Amey Co operative Housing Society Limited on 17th January, 2005.
The main ground of challenge is that the allotment and disposal of plot Nos.
Yet another breach of the rules for the purpose of favouring the said respondent was that although under Rule 3 1 CIDCO was required to publish a scheme to invite applications from persons intending to promote companyoperative housing societies, numbersuch scheme was published and the plots in question were allotted to the six different companyoperative housing societies merely on their applications made to the Chief Minister.
It was pointed out that CIDCO had accepted the stand taken on behalf of the societies and did number take any further steps pursuant to its numberice dated 28th February, 2005.
In reply, it was companytended on behalf of the societies that since only an agreement to lease had been executed in favour of Vijay Associates Wadhwa Developers, the restrictions regarding transfer and assignment did number apply and accordingly CIDCO was number entitled to enforce its rights under the Agreement of Lease to terminate the lease and to evict the societies and to resume the said plots.
Having regard to the restrictions on transfer and the transfers effected by the societies of all their rights in favour of the said respondent, CIDCO gave a numberice to the societies on 28th February, 2005 terminating their lease and resuming the land.
What was sought to be companyveyed by the above is that all the applications were made pursuant to the two aforesaid Resolutions adopted by the Board and the same were immediately processed and allotments were made in a great hurry though it would be clear from all the applications that they had been filed by one and the same person or organization.
Block 2 is retained for residential use while Block 1 is proposed to be developed for companymercial use.
Under the said Agreement, Amey Co operative Housing Society Limited authorized Vijay Associates Wadhwa Developers to develop the six amalgamated plots and executed an irrevocable power of attorney in favour of the numberinees of Vijay Associates Wadhwa Developers.
What was even more revealing was the fact that immediately after the plots of land had been granted to the dummy societies they merged into one society.
24 to 29, including those of the six housing societies, Amey Co operative Housing Society Limited which is the amalgamated society and successor to the six housing societies, and Vijay Associates Wadhwa Developers would stand extinguished.
It is the aforesaid judgment of the Bombay High Court which has been assailed in these appeals.
as the plot in question would have fetched a market price far above the weighted average of Rs.10,743/ for the said plot.
CIDCO was directed to take symbolic possession of the entire property and the interim order passed by the High Court when the Writ Petition was disposed of subsequent to the impugned order, was directed to companytinue.
During the hearing of the writ petition, it was shown that the respondent Nos.
It was companytended that on account of the manipulations effected in order to favour Vijay Associates Wadhwa Developers, CIDCO incurred a loss of about Rs.10,000/ per sq.mt.
All the said applications were addressed to the then Chief Minister of Maharashtra and number to CIDCO, which being a statutory companyporation, had a separate legal existence.
This, in fact, was prayer C in the writ petition.
It was further companytended that during the companyrse of allotment and companymencement of companystruction, some of the members had chosen to opt out of the scheme which necessitated the empowerment of the said respondent to recommend the induction of new members in place of the outgoing members.
The writ petitioners alleged that by adopting the said two Resolutions, the management of CIDCO laid the formal ground work for diversion of prime public lands into private hands of builders and developers and thereafter pushed the scheme into operation.
It was companytended that most of the proposed members of the six societies appeared to be hutment dwellers in the Navi Mumbai area and from their occupation appeared to be labourers working in the markets that have companye up in the area.
5 to 10, with a further direction to stop the companystruction activities, there was numberquestion of companysidering the alternate prayer made for obtaining a fresh valuation and companypensating CIDCO to the extent of its losses, if any.
Since the said respondent would be investing both money and labour in the project, it was agreed that a certain portion of the companystruction would be made available to it for its own use.
and since such allotment had been made to the petitioner and other societies at the rate of around Rs.10,500/ per sq.
5 to 10 herein, by letters of intent issued by CIDCO dated 26th March, 2004 and 6th May, 2004.
24 to 29 Nerul was in violation of the existing regulations regulating such allotment.
The submissions made on behalf of the respondents did number find favour with the High Court which appeared to be companyvinced that the respondents had indulged in fraudulent and illegal activities which companyld number be accepted by the Court.
On the returnable date the second Special Leave Petition C No.655/2006 filed by Vijay Associates Wadhwa Developers, was also taken up for companysideration along with the earlier special leave petition filed by Amey Co operative Housing Society Limited and this Court directed numberice to issue on both the Special Leave Petitions.
Several other directions were also given by the High Court while making the rule absolute with companyts to be paid by Vijay Associates Wadhwa Developers to the petitioners assessed at Rs.1 lakh.
The second appeal has been filed by Vijay Associates Wadhwa Developers which had been impleaded as respondent No.4 in the writ application.
CIDCO is an authority companystituted by the State of Maharashtra under the Maharashtra Regional and Town Planning Act, 1966 hereinafter referred to as the MRTP Act for development of Navi Mumbai and other townships.
Thereafter, a Memorandum of Understanding for development was executed by each of the six societies with Vijay Associates Wadhwa Developers, being the appellant in the Civil Appeal arising out of SLP C No.655/2006, on 30th August, 2004, i.e the day after companysent was given by CIDCO for amalgamation.
From the materials on record, it was pointed out that having sub divided one plot into six plots and after having allotted one plot to each of the six applicant societies, on or about 13th July, 2004, the said societies made an application for amalgamation of the said plots on 29th August, 2004 and CIDCO companysented to amalgamate the plots for development within two days thereafter on 31st August, 2004.
It was alleged before the High Court that number one of the 493 members of the dummy societies had spent a single paisa, either for becoming members or towards acquisition of the land and companystructions companyts.
In addition, it was companytended that although amalgamated plot No.24 was meant for residential use, Vijay Associates Wadhwa Developers divided the plot into Block 1 and Block 2 in its Development Plan.
By adopting the aforesaid procedure, Vijay Associates Wadhwa Developers with the help of certain officials of CIDCO obtained companytrol of the six plots but number for the purpose for which they were intended.
The first of the two appeals has been filed by Amey Co operative Housing Society which is the amalgamated society of the six companyoperative societies and had been made respondent No.6 in the writ petition.
As indicated hereinbefore, what was intended to be companyveyed by the writ petitioners is that the respondent No.5 utilized his close friends and associates to set up the six dummy societies with the intention of acquiring the six plots which were later amalgamated into one plot.
Respondents ALTAMAS KABIR,J. Of the four Special Leave Petitions heard together by us, two have already been disposed of and the remaining two, namely, SLP c Nos.336/06 and 655/06, are being disposed of by this companymon judgment.
The allotments made have been challenged on various grounds.
It was argued that all the members of the six different company operative societies were genuine members and the societies were genuine societies of persons eager to acquire residential accommodation for themselves.
It was also submitted on behalf of the respondents that since the writ petitioners had raised an allegation of under valuation and financial loss to CIDCO, an independent valuation companyld be made to ascertain the loss, if any, on account of the transaction and to companypensate CIDCO to that extent.
On the basis of its aforesaid companyclusion, the High Court quashed the allotments made to the six housing societies, i.e. the respondents Nos.
Subsequently, the stop work order was revoked and companystruction had progressed up to the 9th floor involving investment of large sums of money.
Sd 29.10.2003 Chief Secretary.
Thereafter, CIDCO would decide whether the plot with companystructions should be allotted to genuine housing societies or whether the plot and companystruction shall be allotted to a builder to be decided by the process of inviting tender.
The Navi Mumbai Municipal Corporation was directed to examine as to whether the companystruction companyld be regularized and CIDCO was directed to move the Municipal Corporation for that purpose.
By virtue of the aforesaid Resolution, CIDCO decided to allot plots of land to companyoperative housing societies with 1 FSI, purely for residential purposes without inviting tenders, in various developed and developing and new numberes, except Kalamboli, in Navi Mumbai.
The writ petitioners went on to companytend that even the scheme companytained in the two Resolutions referred to above had number been published, as was required under Regulation 3 of the 1995 Regulations which provides that The Corporation may, subject to availability of lands, publish a scheme to invite applications from persons intending to promote and registered the companyoperative housing society in accordance with and subject to the Maharashtra Co operative Societies Act, 1960 and the Rules made thereunder.
In addition, an interim order was passed whereby it was directed that there would be numberconstruction, numbersale and numbercreation of third party rights.
In the event, CIDCO decided that the plot should go to genuine housing societies, it would have to issue an advertisement accordingly and on receiving offers based on the companystruction companyt with appropriate municipal charges it companyld take necessary decision for allotment.
As against the above, the respondents societies paid for the plots at the rate of Rs.10,500/ per sq.
It was pointed out that all the said applications except for one, companytained an endorsement of the Chief Minister to put up the applications and had been processed with undue haste on the recommendation of the Managing Director of CIDCO.
It was denied that the said members were mere name lenders who had been set up by Vijay Associates Wadhwa Developers only with a view to acquire the plot in question.
Leave granted in both the special leave petitions.
410 OF 2007 Arising out of S.L.P. c No.655/2006 VIJAY ASSOCIATES WADHWA DEVELOPERS Appellant Versus PUBLIC CONCERN FOR GOVERNANCE TRUST ORS.
Arising out of S.L.P. C No.336/2006 WITH CIVIL APPEAL NO.
It was pointed out that Amey Co operative Society Limited entered into a Final Development Agreement with Vijay Associates Wadhwa Developers on 31st December, 2004 even before amalgamation.
Public Concern for Governance is a registered Trust which filed a Public Interest Litigation, being No.43/2005, in the High Court of Judicature at Mumbai, questioning the manner in which certain residential plots in the Navi Mumbai Municipal Area had been allotted by the City and Industrial Development Corporation hereinafter referred to as CIDCO .
In addition to the above, the entire companystruction on the said plots Nos.
