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CIVIL APPEAL No.5989 OF 2007 Nargis Jal Haradhvala …Appellant (s) versus State of Maharashtra and others …Respondent(s)

‘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.

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.

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 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 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 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.

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 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 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 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 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.

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.
(M.Y. Eqbal)

……………………………..J.
(Abhay Manohar Sapre)
New Delhi
January 06, 2015

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