Writ Petition No.1270 of 2014,Civil Application No.1591 of 2014

8th August, 2014.

Petitioner Counsel: Mr. SHIKUR G. KUDLE, Mr. GANESH K. SOVANI
Respondent Counsel: Mr. ASHUTOSH M. KULKARNI, Mr. S.N. PATIL

Cases Cited:
Mr. Sumitra Krishna Kadu Vs. The State of Maharashtra and others, PIL No.195/2009, Dt. 7.4.2010 [Para 12]

JUDGMENT

A. S. OKA, J. :- Heard the learned counsel appearing for the Petitioner, the learned counsel appearing for first Respondent and the learned AGP for second to fourth Respondents. We have also heard the learned counsel representing the Applicants in Civil Application No.1591 of 2014. By order dated 30th April, 2014, the parties were put to notice that this Petition will be disposed of finally at the stage of admission and accordingly, time was granted to file a reply till 10th June, 2014. Only the first Respondent has filed a reply.

2. By letter dated 7th August, 2012, the City and Industrial Development Corporation of Maharashtra Limited (for short "CIDCO") allotted a plot of land bearing 17A (for short "the said Plot") admeasuring 699.97 square meters in Sector 8, Sanpada, Navi Mumbai to the Petitioner for setting up a mosque. The terms and conditions of allotment of the said plot on lease were set out in the said letter of allotment. There is a separate letter issued on 21st August, 2012 issued by CIDCO to the Petitioner confirming the allotment. By the said letter, the schedule for payment of premium was set out and miscellaneous charges of Rs.41,499/- were demanded. The terms and conditions of allotment were annexed to the said letter. We must note here that by a Resolution No.10008 passed by the Board of Directors of the CIDCO in a meeting held on 1st December, 2008, approval was granted for allotment of the said plot on lease to the Petitioner. The State Government granted approval on 2nd April, 2012. These facts are recorded in the letter dated 17th May, 2012 addressed by the CIDCO to the Petitioner. The Petitioner is relying upon a letter dated 24th December, 2012 addressed by it to the Managing Director of CIDCO which records that the entire amount of premium of Rs.65,60,331/- and miscellaneous charges of Rs.41,499/- have been deposited by the Petitioner with the CIDCO. The contention of the learned counsel appearing for the Petitioner is that notwithstanding the payment of the entire amount, the first Respondent has not placed the Petitioner in possession of the said plot. His submission is that only because of the opposition by some political parties that the first Respondent CIDCO is not handing over the possession of the said plot to the Petitioner. Therefore, a Writ of Mandamus is prayed for directing the first Respondent to execute necessary agreement and to place the Petitioner in possession of the said plot.

3. The learned counsel appearing for the first Respondent did not dispute that the allotment of the said plot was made to the Petitioner. He has relied upon a letter dated 25th September, 2012 issued by the Senior Inspector of Poilce, Turbhe Police Station to the CIDCO. He pointed out that the said letter records that if after allotment of the said plot, a Masjid is erected thereon by the Petitioner, there will be a serious outbreak of law and order situation in future. He pointed out that the Applicant in the Civil Application for intervention also made a representation to the CIDCO on 25th September, 2012 praying for reconsideration of the said decision. He placed reliance on a letter dated 15th January, 2013 addressed by the Managing Director of CIDCO to the Commissioner of Police, Navi Mumbai for seeking guidance. He has relied upon a letter dated 31st January, 2013 addressed by the Commissioner of Police to the Managing Director of CIDCO in which it was stated that the Commissioner of Police has sought advise from the State Government. He also invited our attention to what is set out in the affidavitinreply of CIDCO and in particular paragraph 13 thereof. He submitted that as the CIDCO is awaiting the guidance from the Commissioner of Police, steps have not been taken for handing over possession of the said plot to the Petitioner especially in the light of the fact that earlier letters of the Police show that a law and order situation is likely to be created. The learned AGP has not received any instructions and there is no reply filed by the State Government.

4. The learned counsel appearing for the Intervenor (Akhil Sanpada Rahivasi Sanskrutik Prathisthan) has made detailed submissions. He submitted that the population of Muslim Community in the area in which the said plot is situated is negligible. He pointed out that the Petitioner does not satisfy the tests laid down in the Board Resolution No.9536 dated 21st December, 2006 of the CIDCO. He stated that he has filed one more Civil Application wherein the Applicant wants to challenge the said Resolution. He submitted that as back in the year 2003, the Commissioner of Police had addressed a letter to the CIDCO warning the CIDCO not to make allotment of the said plot to the Petitioner. He also relied upon a letter of the year 2007 addressed by the Deputy Commissioner of Police, Navi Mumbai warning the CIDCO about possibility of law and order situation being created. He submitted that objections have been submitted by the Applicants to the CIDCO. He urged that the CIDCO cannot allot the plot to the Petitioner considering the location of the plot and considering the fact that serious law and order situation will be created. Lastly, he relied upon a letter dated 21st July, 2011 addressed by the Inspector of Police of Turbhe Police Station to the Commissioner of Police, Navi Mumbai. He urged that considering the issues involved, no relief should be granted to the Petitioner.

5. We have considered the submissions. The learned counsel appearing for the Petitioner, on instructions, states that the Petitioner has deposited the entire amount demanded by the CIDCO as per the letter of allotment. He pointed out that a statement on oath to that effect has been made in paragraph 8 in the affidavitinreply of Mrs. Reema Rajan Dikshit, Chief Social Services Officer of the CIDCO. On instructions, he states that even assuming that there is any shortfall, the Petitioner is ready and willing to pay the same as and when called upon to do so by the CIDCO.

6. We have already noted that a Resolution was passed by the Board of Directors of CIDCO on 1st December, 2008. The Agenda note of Item No.17 regarding the allotment of the said plot to the Petitioner has been annexed to the application for intervention. Paragraphs 2 to 4 of the said Draft Agenda note read thus :-

"2. The Trust has been in correspondence with the Corporation since 1999 for leasing of plot in Sanpada Node for setting up place of worship. The proposal to allot approx. 500 m2 plot to the said Society was principally approved by the Corporation in the year 1999. Since then, though several plots were shown to the Society and suggested to Police Deptt. for issue No objection Certificate from law and order point of view, however, Police Deptt. issued NOC for none of them. Now, the Commissioner of Police finally issued NOC for allotment of Plot No.17A adm.500 m2 in Sector8, Sanpada to Tanzimul Muslimin Society for setting up Mosque. The location plan in placed at Annexure-A. The location was also shown to the representatives of the Trust and NOC was issued by Commissioner of Police vide letter dated 2982008 with regard to suitability of location for the purpose from law and order point of view. A copy of the NOC issued by Police Deptt. is placed at Annexure-B.

3. As per Board Resolution No.9536 dated 21/12/2006, the Board has approved following minimum eligibility criteria for allotment of plot for religious purpose in Navi Mumbai :-

(i) Registration under BPT in Maharashtra.

(ii) The Trust when apply should have completed a period of 4 years from the date of registration.

(iii) 3 years' audited statement of accounts shall be evaluated.

(iv) The Trust should be financially sound to take up a plot and construct the building in stipulated time limit along with the facilities.

(v) Minimum member families 200 or more

The Trust is meeting all the above minimum eligibility criteria fixed by Board.

4. As per the Socioeconomic survey undertaken by the Corporation in the year 2005 conducted by statistical Deptt., the Muslim population of Sanpada Node is 2.79% of total population. The total population of Sanpada Node is 96100 and hence the projected Muslim population is 2683. Based on the norm of 0.15 m2 per person and the total projected population of Islamic community in Sanpada Node, they are eligible for a plot of approx. 402.47 m2 for place of worship." (Underlines added)

7. Thus, the Agenda note specifically records that initially several plots were shown to the Petitioner but the Police Department did not issue No Objection Certificate for the said plots. It is recorded that after considering the suitability of the location from the point of view of the law and order, the Commissioner of Police, Navi Mumbai issued a No Objection Certificate on 29th August, 2008 as regards the said plot. In fact, the Agenda note shows that the No Objection Certificate issued by the Commissioner of Police was placed before Board of Directors of CIDCO. What is set out in the Agenda Note shows that all relevant factors were brought to the notice of the Board of Directors of the CIDCO.

8. We must also note that by letter dated 2nd April, 2012 issued by the Urban Development Department, State Government addressed to the Managing Director of CIDCO, specifically a "No Objection" was granted to the CIDCO for allotment of the said plot to the Petitioner. However, No Objection was subject to conditions incorporated in the said letter. The reliance placed by the learned counsel appearing for the CIDCO is on the letters dated 25th September, 2012 and 1st December, 2012 submitted by the Police Authorities. However, to the affidavit filed by the CIDCO, minutes of the meeting held on 8th February, 2013 have been annexed. The meeting was chaired by a Hon'ble Minister of the State Government who is incharge of Minority Department of the State Government. It appears that in presence of the Deputy Commissioner of Police and the Managing Director of CIDCO, the issue of the allotment of the said plot to the Petitioner was discussed and a direction was issued by the Hon'ble Minister in the said meeting to complete the allotment. The learned counsel appearing for the Applicant is relying upon the letters issued by the Commissioner of Police as well as the Deputy Commissioner of Police which are prior to the year 2008. As we have noted earlier, on 29th August, 2008, a No Objection Certificate was issued by the Commissioner of Police to the CIDCO to enable the CIDCO to allot the said plot to the Petitioner for construction of a mosque.

9. We must note that as of today, no one has challenged the action of CIDCO of allotting the said plot to the Petitioner. The CIDCO has taken the action of allotment only after No Objection Certificate was granted by the Commissioner of Police. Moreover, on 2nd April, 2012, the State Government has granted consent to the allotment subject to compliance with the terms and conditions incorporated in the said letter. According to the case of the Petitioner, the amounts of Rs.65,66,331/- and Rs.41,499/- have been deposited by the Petitioner with the CIDCO as per the demand of the CIDCO. This fact is not disputed in the reply filed by the CIDCO.

10. We, therefore, see no legal impediment in the way of the CIDCO handing over the possession of the said plot which is already allotted to the Petitioner in the year 2012. At this stage, we must refer to what is set out in paragraph 13 of the affidavitinreply of the CIDCO which reads thus :-

"13. The said Mahasangh held the Morcha on 06.03.2013, which was supported by all the leading political parties like Shivsena, Bharatiya Janata Party, Rashtravadi Congress Party, Maharashtra Navnirman Sena. Even in the said Morcha, followers of the said political parties and the members of the Mahasangh were present. As per the information provided by D.B. of Police Department around 4000 people participated in the Morcha. All the schools and shops from Sanpada were kept closed on the said day. The agitators submitted their representation to the Managing Director of CIDCO. In short their grievances were to the effect that in Sanpada Node there has been less Muslim population and still the suit plot is being allotted. They also submitted that there is strong opposition from the other residents societies in the vicinity for allotment of the suit plot to the Petitioner. The CIDCO authorities have received such objections from the Housing Societies in the vicinity of the suit plot, copies of which are annexed hereto and marked as EXHIBIT 'AR5'(Colly.). Therefore they requested to change the location of the allotment of the Petitioner from the suit plot to some other area having more Muslim population. In the said meeting, the Managing Director of CIDCO gave assurance that these issues will be referred to the Government as well as the Police department and as per their directives, the issue will be resolved."

11. The objection of the Intervenor is that the population of Muslim Community in the locality in which the plot is located is negligible and if a Mosque is allowed to be erected on the said plot, there will be a law and order situation created.

12. On this aspect, it will be necessary to make a reference to the decision of the Division Bench of this Court on 7th April, 2010 in PIL No.195 of 2009 in the case of Mr. Sumitra Krishna Kadu Vs. The State of Maharashtra and others. This was a case where the challenge in the Petition was to the allotment by CIDCO of a plot of land to the Islam Welfare Association. One of the objections raised was that there are no members of the Muslim Community in the area and that the members of the public residing in the locality are professing Hindu faith. It was contended that construction of the Mosque on the plot allotted will create a nuisance to the members of the public. While rejecting the Petition, the Division Bench held thus :-

"12. It is not possible to bypass the secular character of our constitution whose preamble sets out that the India amongst others will be a secular democratic republic. India consists of people professing various faiths of different ethnic groups and speaking a multitude of languages. They all constitute the fabric of the nation. Intolerance towards a religious group or linguistic minority, or regional consideration are foreign to our constitutional scheme though we do find, as a practical reality, such issues surfacing at the instance of the organizations and political parties, who though subscribe to uphold the Constitution and laws of India, forget the spirit of the constitution. If in the locality there is preponderance of one group professing a particular faith, that does not mean that the minority group cannot be allowed to practice and profess their religion as long as they obey the law. The threats of violence and or riots are anathema to the rule of law. Tolerance and respect for the constitution is what we must aspire. If we as citizens lose sight of these basic values, it would amount to giving gobye to the constitutional spirit. The Petitioner has annexed letter from the office of the Police Commissioner of Mumbai dated 4.4.2008 wherein it is set out that there is objection of Shiv Sena and Vishwa Hindu Parishad to allot land for Masjid. The rule of law cannot be dictated by political parties or Organizations professing a particular faith. They will have to accept the secular character of our constitution. The police machinery must rise to the occasion and deal with such threats if they are against the law. Threats by such organizations cannot be the basis for cancelling allotment of the land. That itself would be illegal." (Underlines added)

13. Considering the stand taken by the CIDCO which is reflected from paragraph 13 of their affidavit, what is held by this Court will be squarely applicable. Such a stand has been already deprecated by the Division Bench of this Court and the Division Bench upheld the order of allotment made by the CIDCO. In the light of what is held by this Court, even the contentions raised by the Applicant in the Intervention Application will have to be completely rejected. We do not agree with the proposition that as the population of members of the public professing Islam is negligible in a particular locality, a mosque cannot be allowed to be constructed. Such a proposition will not only be contrary to the secular character of our constitution, but it will be contrary to the Article 25 of the Constitution. The Police who are under an obligation to uphold the Constitution and the laws cannot contend that with a view to avoid creation of law and order situation, the allotment of the plot should be put on hold. The CIDCO being the 'State' within the meaning of the Constitution of India, cannot act arbitrarily by keeping the allotment on hold after accepting a sum of about Rs.70,00,000/- from the Petitioner.

14. In the circumstances, we hold that the action of the CIDCO of withholding the possession of the said plot to the Petitioner is illegal. We, therefore, propose to direct the CIDCO to place the Petitioner in possession of the said plot. However, we make it clear that the Petitioner will have to abide by the terms and conditions incorporated in the letter dated 2nd April, 2012 addressed by the State Government to the Managing Director of CIDCO which is annexed as Exhibit" C" to the Petition. The Petitioner will have to co-operate with the Police Authorities for ensuring that law and order is maintained. Moreover, if any amount is due and payable to the CIDCO, the Petitioner will have to pay the said amount.

15. Hence, we pass the following order :-

ORDER

(i) We direct the City and Industrial Development Corporation of Maharashtra Limited to hand over the possession of the said plot more particularly described in the letter of allotment dated 7th August, 2012 to the Petitioner within a period of three months from today;

(ii) We direct the CIDCO to execute necessary documents in favour of the Petitioner subject to the Petitioner making all procedural compliances as required by the CIDCO;

(iii) In the event any amount is due and payable by the Petitioner, the CIDCO shall call upon the Petitioner to pay the said amount. The Petitioner shall pay the said amount within a period of three weeks from the date of demand;

(iv) We make it clear that the Petitioner will be bound by the terms and conditions incorporated in the letter dated 2nd April, 2012 addressed by State Government to the Managing Director of CIDCO. We also make it clear that the Petitioner shall be under an obligation to abide by the terms and conditions for maintaining law and order.

(v) With the above directions, the Petition is disposed of. Civil Application No.1591 of 2014 is rejected. However, we make it clear that the contentions of the Applicant therein as regards the challenge to the Board Resolution No.9536 are expressly kept open;

(vi) All concerned to act upon an authenticated copy of this order.

Ordered accordingly.