NARGIS JAL HARADHVALA Vs STATE OF MAHARASHTRA .
Bench: M.Y. EQBAL,ABHAY MANOHAR SAPRE
Case number: C.A. No.-005989-005989 / 2007
Diary number: 34505 / 2007
Advocates: MANIK KARANJAWALA Vs
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‘ REPORTABLE’
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5989 OF 2007
Nargis Jal Haradhvala …Appellant (s)
versus
State of Maharashtra and others … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.:
This appeal by special leave is directed against
judgment and order dated 16.8.2007 of the High Court of
Judicature at Bombay whereby Division Bench of the High
Court dismissed the writ petition preferred by the appellant
challenging orders issued by the respondents.
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2. The factual matrix of the case is that the appellant
applied for an exemption under Section 20 of the Urban Land
(Ceiling and Regulation) Act, 1976 (in short, ‘the Act’) in
respect of land bearing CTS No.1310 of village Versova in
Andheri Taluka of Mumbai Suburban District, measuring
5892.5 sq.mt. (in short, “suit property”), out of which
exemption in respect of 3491.5 sq.mt. was granted by
Respondent No.1 in August, 1987. The balance 2401 sq.mt.
did not need exemption being reserved for road and garden
and was duly handed over to the Municipal Corporation by
the appellant. 500 sq.mt. was “retainable land” that the
landowner is entitled to retain. Exemption order tentatively
specified 30% of the permissible floor space of the exempted
land to be sold to Government Nominees. It was clarified
that the percentage will be prescribed by the Government as
per the extent of the land to be exempted.
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3. On 31.1.1990, this Court in the case of Shantistar
Builders vs. N.K. Toitame, (1990) 1 SCC 520, dealing with
the issue of constructions over exempted lands covered
under Section 20 of the Act laid down that the number of the
government nominees should not exceed 5% of the total
accommodation available in any scheme. The case of the
appellant is that after the aforesaid decision, on 23.11.1990,
by a subsequent corrigendum, Respondent No.1 amended
the area to be surrendered to the Government nominees and
finally prescribed it as 20% of the floor space of the first
2000 sq.mt. of the net permissible F.S.I. of the land
exempted and 30% of the balance sq.mt. permissible.
4. The appellant’s further case is that being unaware of
aforesaid decision of this Court, appellant initially offered 26
flats (1036.39 sq.mt.) by her letters and subsequent
reminders in the years 1990 and 1991, but the respondents
neither took up the flats offered nor did they respond in any
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way to appellant’s letters. However, respondents moved an
application for modification of the judgment in the case of
Shantistar Builders (supra) and maintained the quota of flats
for Government nominees at 10% by its Resolution dated
22.10.1992. Accordingly, appellant requested the
respondents to take over 10% of the net permissible area of
the exempted land viz. 296.73 sq.mt and offered 7 flats
(having area of 303.73 sq.mt.), in reply to which,
respondents acknowledged that only 10% of the area
needed to be surrendered for the Government nominees but
claimed that this 10% worked out to be 414.92 sq.mt. and
not 296.73 sq.mt. However, in May, 1993, respondents took
up only 4 of the 7 flats offered by the appellant, whose area
was 5.86% of the net permissible FSI of the exempted land.
Upon being asked by the appellant for the issuance of the
certificate to the effect that required number of flats have
been surrendered to the Government, Respondent no.3
asked the appellant to hand over 21 flats in addition to the 7
flats already offered. On this, appellant pointed out that only
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5% flats could be claimed in view of Apex Court’s judgment
in Shantistar Builders (supra) and the same had already
been handed over. On 17.11.1995, this Court rejected the
Government request to allow 10% quota for Government
nominees and restricted the quota to 5% only.
5. The appellant, therefore, reiterated in her subsequent
letters to the respondent that only 5% flats could be claimed
in view of aforesaid judgment of the Apex Court, and on
30.9.1998, three more flats were handed over to secure the
Occupation Certificates that were being withheld by the
respondents. It is the case of the appellant that several
representations were made to the Government to limit the
area to be surrendered to the Government as per aforesaid
judgment of the Apex Court, but her requests were rejected
and Respondent No.3, vide letters dated 18.6.2002 and
23.7.2004, asked the appellant to surrender 805.58 sq.mt. of
area in addition to 303.73 sq.mt. already surrendered by
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her. The appellant was also served with notices dated
16.10.2004 and 3.1.2005, in reply to which, appellant
pointed out jurisdiction of Respondent No.3 and the fact
about the wrong calculation of area to be handed over to
Government nominees.
6. By letter dated 18.10.2005, Respondent no.3 informed
appellant that since the appellant has failed to surrender in
all 1109.31 sq.mt. built up area to the Government in the
form of 28 flats from the subject scheme, a criminal case is
being filed against the appellant with the Versova Police
Station. An appeal preferred by the appellant against this
was dismissed by Respondent No.2 by its order dated
25.7.2006, stating inter alia that the Competent Authority is
very much in his powers to hear and act on matters
regarding Section 20 and is in no way exercising any
authority outside his jurisdiction or outside the letter and
spirit of the Act.
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7. Thereafter, the appellant, challenged the order passed
by the respondents by way of writ petition in the Bombay
High Court. The Division Bench of the High Court rejected
the appellant’s writ petition holding that the present case is
not covered by the decision in Shantistar Builders (supra) as
the same does not have retrospective effect and that the
document dated 18.10.2005 was not an order but a
letter/intimation by the competent authority to the appellant
that the conditions of the exemption order were not
complied with. Hence, this appeal by special leave under
Article 136 of the Constitution of India is preferred by the
appellant raising issue what percentage (5%, 10% or higher)
of area in any scheme is to be surrendered under the Urban
Land (Ceiling and Regulation) Act, 1976.
8. Mr. C.A. Sundaram, learned senior counsel appearing
for the appellant in course of argument fairly submitted that
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since the decision rendered by this Court in Shantistar
Builders’s case was prospective in its operation, the same
will not apply in the facts of the present case. However,
admittedly, the respondents issued a corrigendum dated
23.11.1990 amending the area to be surrendered to the
Government nominee and finally prescribed it as 20% of the
floor space of the first 2000 sq.mt. of the net permissible FSI
of the land exempted. Learned counsel submitted that by
another circular dated 22.10.1992 issued under the
signature of Joint Secretary to the Government, the quota for
the Government nominee was reduced from 20% to 10%.
According to the learned counsel the appellant already
handed over 10% of the total accommodation. Mr.
Sundaram then submitted that at the initial stage after
completion of construction 30% of the permissible floor
space was offered for sale to the Government nominee, but
it was neither acknowledged nor accepted by the
Government, hence the respondent is stopped from claiming
the same on the principle of waiver. Learned counsel drawn
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our attention to the relevant document and submitted that
the flats which were surrendered by the appellant have been
sold by the respondent to VIPs and not to the weaker section
of the society. Learned counsel lastly contended that on the
basis of subsequent corrigendum dated 23.11.1990 read
with the circular dated 22.10.1992 the appellant is not liable
to surrender more than 10% of the quota as fixed in the
circular.
9. Per contra, Mr. Rahul Chitnis, learned counsel
appearing for the State, submitted that in support of the
above referred corrigendum and the circular, the appellant
executed indemnity bond on 12.10.1998 and agreed to give
30% of the permissible floor space to the Government
nominee. The appellant further agreed to surrender the
remaining tenements within five years from the date of
execution of indemnity bond. Learned counsel submitted
that as against 30% (28 flats) and 20% (18 flats), the
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appellant has given only seven flats to the respondent till
date.
10. We have considered the entire facts of the case and the
argument advanced by the learned counsel appearing for
the parties.
11. Indisputably exemption under Section 20 of the Act was
granted on 17.8.1987 with the condition to surrender 30% of
the permissible floor space to the allottees nominated by the
Government. It was clarified that the percentage will be
prescribed by the Government as per the extent of the land
to be exempted. It is also not in dispute that subsequent
corrigendum was issued by the Government on 23.11.1990
wherein the extent of 30% was agreed as 20% of the floor
space of the first 2,000 sq.mt. of the net permissible FSI of
the land exempted under the order and 30% of the 2364.37
sq. mt. balance permissible area. However, we do not find
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any authenticity in the circular dated 22.10.1992, copy of
which has been produced before us in support of the
contentions made by the appellant that the 20% quota fixed
by the corrigendum was further reduced to 10% of the floor
space. Further, admittedly, the appellant executed an
indemnity bond on 12.10.1998 wherein it was agreed that
the balance built up area would be surrendered to the
Government within a period of five years i.e. up to 2003.
12. In the background of all these facts, in our considered
opinion, the appellant is bound to surrender to the
Government a total 20% of the permissible floor space in the
light of the corrigendum dated 23.11.1990 issued by the
Government. As noticed above, till date, the appellant has
given only seven flats to the allottees nominated by the
Government. Calculating 20% of the floor space, the
appellant is bound to sell 11 more flats to the persons that
may be nominated by the Government.
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13. We, therefore, allow this appeal and set aside the order
passed by the High Court. Consequently, we modify the
order dated 25th July, 2006, passed by the Additional
Commissioner, Konkan Division, Mumbai and direct the
appellant to sell eleven more flats to the allottees, who shall
be nominated by the Government. Taking note of the fact
that seven flats so surrendered by the appellant have been
sold to the Government nominee in gross violation of the Act
and the Scheme framed by the Government, we do not wish
to issue any direction in this matter. However, we make it
clear that the remaining eleven flats that shall be handed
over by the appellant to the Government shall be sold to the
Government nominees, who must belong to the weaker
section of the society. We also direct the appellant to hand
over and sell remaining eleven flats to the Government
within four months from today.
…………………………….J.
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(M.Y. Eqbal)
……………………………..J. (Abhay Manohar Sapre)
New Delhi January 06, 2015
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