Bombay High Court
Macrotech Developers Limited vs The State Of Maharashtra And 9 Ors on 29 October, 2021
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
Digitally signed
by VIDYA
VIDYA SURESH AMIN
SURESH Date:
2021.10.30
AMIN 19:07:38
+0530
912.WPL25336_2021.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 25336 OF 2021
Macrotech Developers Ltd. ... Petitioner
V/s.
State of Maharashtra & Ors. ... Respondents
Mr. Amogh Singh i/b. Jeet Gandhi for the petitioner.
Ms. G.R. Shastri, Addl. G.P. with Mr. Amit Shastri, AGP for the
State.
Mr. Akshay Shinde for respondent no. 2.
CORAM : G.S.KULKARNI, J.
DATE : 29 October, 2021 P.C.:
1. This petition was moved urgently yesterday. Considering the urgency, it was circulated for today. The urgency as set out by the petitioner is to the effect that by the impugned communication dated 17 September, 2021 issued by the Collector, Mumbai City to the Deputy Inspector General of Registration, Fort, Mumbai, a blanket prohibition has been ordered on the registration of any document, such as agreements for sale statutorily required to be undertaken as per the provisions of the Indian Registration Act.
2. The petitioner is seriously affected by such prohibition, as it pertains to land allotted to the petitioner by MMRDA on which the petitioner has already constructed 7 residential towers and 2 commercial towers as also one school. By virtue of the impugned communication, the agreements being registered by the petitioner 1/17
912.WPL25336_2021.doc with the purchasers of the flat/tenements in respect of the construction undertaken of the petitioner is sought to be prohibited.
3. By the impugned communication, the Collector has informed the said authority that no documents interalia in regard to any premises in regard to the land in question, namely, City Survey No. 8 be registered without the permission of the Collector. An official translation of the impugned letter reads thus:
(Revenue Branch) No. CSLR/ RB / Salt Pan / M. No.8/ Date : - 17/09/2021 To, The Deputy Inspector General of Registration, Ground Floor, Old Custom House, Fort, Mumbai - 400 001.
Subject : Land : Mumbai City, Regarding Government Lease property viz. Cadastral Survey No.8 in Salt Pan Revenue Division.
Reference :- 1. Complaint application dated 07/06/2021 of Bandu Jadhav.
2. Letter bearing No. CSLR/RB/ Mumbai City/ G. R./ Miscellaneous / 2016/ 117, dated 10/05/2016 of this office.
In the matter noted in the subject it is informed to you that, as per the letter referred to at No. 2 hereinabove, Government Properties in the Mumbai City District have been sanctioned to various individuals, institutions, Co-operative Housing Societies and Companies and others on lease for various purposes and as per the provisions in the lease agreement in respect of the said properties, it is necessary to take prior permission from the Government for transfer the said properties as well as to inform the Government within stipulated time. Therefore, it was informed that no Deed of transfer, cancellation of any kind in respect of the 2/17
912.WPL25336_2021.doc said property should be registered without the prior permission of this Office/ Government. Moreover, the list of Government properties on lease was enclosed.
Moreover, as Government property on Lease i.e. Cadastral Survey No. 8 in Salt Pan, Revenue Division is not mentioned in the aforesaid list and as the documents in respect of transfer of the said property are registered without the prior permission of this Office, the same has come to the notice and this issue is of serious nature. Hence, the detailed information as to how many Deeds in respect of transfer of the said property, have been registered in this matter till this date, should be submitted to this Office. Similarly, the Government property bearing Cadastral Survey No. 8 in Salt Pan Revenue Division has been given to Mumbai Metropolitan Region Development Authority on lease for a period of 99 years and therefore, the Deeds of Transfer of the said property by way of sale or by any other manner, should not been registered without the prior permission of this Office. This aspect should be brought to the notice of the Office of the Joint Sub- Registrar, under your control. Moreover, if it comes to the notice of the Office that the Deed in respect of transfer of the said property has been registered without the prior permission of this Office then, you shall be held responsible for the financial loss to be incurred by the Government, which may be noted.
(Rajiv Nivatkar) Collector, Mumbai City."
4. The petitioner received knowledge of this communication on 20 October, 2021, as the Sub-Registrar refused to register Agreements of Sale in respect of the petitioner's project on the said land, which as noted above, consists of 7 residential towers, 2 commercial towers and one school. This large scale construction has been put up on land which was allotted to the petitioner on public bids being invited by MMRDA, as the said land was leased to the MMRDA by the State Government.
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912.WPL25336_2021.doc
5. Mr. Singh has argued that these are multi-storeyed residential and commercial towers of more than 35 floors. The buildings are complete, except for some work in relation to one of the buildings. He has stated that already 2004 agreements have been registered for sale of the residential/commercial premises and about 448 agreements are to be now registered.
6. Prima facie it appears to be quite shocking that the Collector, at the mood of passing moment, issued the impugned communication, without verifying the antecedants in respect of the prior actions which were taken not only between the State Government and the MMRDA, but also subsequent to the MMRDA taking action to publicly auctioning the plot of land to be offered for development, of which the petitioner is a beneficiary. It is also quite unknown as to what is the real intention of the Collector in issuing the impugned communication.
7. Be that as it may, some relevant facts are required to be noted. It appears to be not in dispute that the land in question originally belonged to the State Government. The State Government vide its memo dated 6 March, 1982 read with Government Resolution dated 29 December, 1992, a copy of which is handed over to the Court by Ms. Shastri, the land was 4/17
912.WPL25336_2021.doc decided to be allotted to the MMRDA on lease, initially for a period of 30 years effective from 16 June, 1982 for the purpose of the Wadala Truck Terminal (for short "WTT"). Under the State Government letter dated 27 June, 1984, the said land was handed over to the MMRDA. Thereafter by letter dated 3 October, 1997, the Government of Maharashtra extended the lease period from 30 years to 99 years. On 24 October, 2005, the State of Maharashtra decided to lease the said land for the purpose of WTT.
8. On 3 December, 2005, the Government of Maharashtra appointed MMRDA as the Special Planning Authority for the development of "F" North Ward, which includes the land in question. The MMRDA exercised its rights in respect of the said land, which at no point of time, appears to be disputed by the State Government. The MMRDA on 3 March, 2010 invited tenders for the purpose of developing the plots of land in relation to the land in question. It is pertinent to note some of the relevant terms and conditions as set out by the MMRDA in its tender document inviting public bids for allotment of the land in question. The title of the bids being invited was for allotment of commercial plot in Wadala on lease in the said tender issued in March, 2010. The relevant extracts of the tender documents reads thus:
"Introduction 5/17
912.WPL25336_2021.doc MMRDA has been designated as Special Planning Authority (SPA) to develop the said Wadala Truck Terminal (WTT) and Inter State Bus Terminal (ISBT) area keeping in view the integration of facilities and provision of civic amenities to world class standards. In December 2005, Government of Maharashtra vide Notification no. TPB-4305/CR-318/05 dated 3° December, 2005 appointed MMRDA as a Special Planning Authority (SPA) in exercise of its powers under section 40(1)(c) of the Maharashtra Regional & Town Planning Act, 1966. The SPA covers the areas designated as Truck Terminal and ISBT of about 65.51 ha. and has 4 phases. Now the objective of MMRDA is to prepare the development plan for the SPA area and prepare the business development plan Marketing Strategy for the project. The Wadala Truck Terminal site is situated on the south of Eastern Express-Highway (EEH) and to the east of Antop and Raoli Hills. The site falls in F-North ward of MCGM and in the Island city of Mumbai. The site is bound by the connector road of the EEH and the proposed Anik Panjar pol link and the Mahul creek on the East. The site is surrounded by the residential areas of Evarad nagar, Bhakti park etc. Recent development of Imax Multiplex theatre, Engineering College is also an added feature in the surrounding land-use of the area.
............
Offer from MMRDA MMRDA intends to lease for a term of 65 years, a commercial plot located in Wadala Truck Terminal (WTT), for offices purposes to the organisations belonging to following eligible categories:
i) Financial Services such as Banks, Financial Institutions, Non - Banking Financial Companies, Housing Finance Agencies, Merchant Banks, Insurance Agencies, Asset Management Companies and Mutual Funds.
ii) Corporate or regional offices of leading Indian companies with a minimum annual turnover of Rs. 500 crores with a minimum Net worth of Rs. 120 crores and in case of foreign companies with regional headquarters and branch offices in India minimum annual turnover equivalent to Rs. 1000 crores with minimum Net worth of Rs.200 crores. (Partnership firms are not considered eligible) Lease of plot to foreign companies will be subject to approval of Reserve Bank of India.
iii) Organisation engaged in Information Technologies & Telecommunications.
iv) Corporate Developers catering to mixed permissible user as stated in table below.6/17
912.WPL25336_2021.doc
v) In case of above categories except at ii) the gross turn over of the bidders business during the last financial year shall not be less than Rs. 200 crores and the bidder shall have minimum Net worth of Rs. 100 crores as per the last audited balance sheet of the firm at the time of submission of the bid.
vi) Bidder shall have constructed/ completed a building of height not less than 200 mtr.
...................
1. PROJECT LOCATION 1.1 Introduction The Mumbai Metropolitan Region Development Authority (MMRDA) is a body corporate constituted and established under the provisions of Mumbai Metropolitan Region Development Authority Act,1974 (Maharashtra Act IV of 1975). The MMRDA has been appointed as the Special Planning Authority (SPA) for the Wadala Truck Terminal by the State Government in exercise of its powers under Section 40 (I) (c) of the Maharashtra Regional & Town Planning Act, 1966.
1.2 MMRDA intends to lease for a term of 65 years a Commercial plot located in WTT having Commercial- Offices/ Business Centres/ Shopping Malls, Star Hotels and Restaurants, Entertainment Centre, Health, Sports facilities & Residential. to the organizations belonging to following eligible categories :
The six categories are (i) Financial Institutions, Banks and Insurance Agencies, (ii) Front Ranking Indian and Foreign Companies, (iii) Information, Data Processing, Computers & Telecommunications Companies, (iv) Trade and Business Promotion Agencies, (v) Regulatory Authorities and (vi) Business Support Services. The activities permissible under these six categories are given at Annexure-A. 1.3 Offer from MMRDA in order to cater to the present and growing business needs in WTT and Mumbai, MMRDA hereby invites seaied bids to tease Commercial plot located in Wadala Truck Terminal (WTT) for a period of 65 years.
1.4 Particulars of Land Details of the Commercial plot now being offered on 65 years on lease is as follows :
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912.WPL25336_2021.doc Plot No. Plot Area Maximum Permissible Users in sq. permissible mtr. buiit up area ins-. mtr.
Block-C 25,000.00 4,95,000.00 Commercial-Offices/ (Commercial) Business Centres/ Shopping Malls, Star Hotels and Restaurants,Entertain ment Centre, Health, Sports facilities & Residential Note: Plot areas given above are likely to change marginally on actual demarcation on site. However, the maximum Permissible Built up area will remain the same. A map indicating location of plot being offered is enclosed as Annexure-B . and Measurement Plan is enclosed as Annexure -- C. The Lessee will have to apply for power supply, gas & telephone facilities to the appropriate authorities. 1.5 User of the Land The Land shall be applied for the erection of the building or buildings as per allotment. Lessees belonging to categories (i),
(ii) and (iii) mentioned in para-1.2 above, will be able to transfer the floor space in accordance With the provisions of the Lease Deed. However, categories (i), (ii) and (iii) can transfer only upto 40% of the floor space during the first five years of the completion of the building for use of activities described in Annexure-A in accordance with the provisions of the Lease Deed and the remaining 60% thereafter. Where the lessee is a Corporate Developer (category-iv), entire floor space can be transferred to categories (i) to (vi) Specified in para-1.2 above and described in Annexure-A in accordance with the provisions of the Lease Deed.
Commercial Plot: - The allottee may construct commercial building having 4,95,000.00 sq. m. as maximum permissible built up area which can be used for commercial uses such as Commercial-Offices/ Business Centres/ Shopping Malls, Star Hotels and Restaurants, Entertainment Centre, Health, Sports facilities and Residential.
Recreational Ground: The area of Recreational Ground is 6,76,000.00 sq.m. will be part of the commercial plot that will 8/17
912.WPL25336_2021.doc be hand over for development , maintenance and protection at a nominal rent of Rs.1000/-. The total plot area including commercial and R.G. will be 9,26,000.00 sq.m.(9.26 ha). 1.6 Development Controls
i) The maximum permissible height of the building shall be subject to limitations, if any, set out from time to time by the Civil Aviation Department of Government of India.
ii) Subject to the provisions of the Municipal Corporation of Greater Mumbai Act, 1888, and the bye-laws and regulations made thereunder namely the Development Control Regulation sanctioned by Govt. for Greater Mumbai and wadala track terminal (WTT), the allottee will have full discretion to organise inner spaces, both horizontally and vertically, to suit his requirements.
Mode and Conditions of Disposal Disposal of Plot by MMRDA is governed by the provisions of the MMRDA (Disposal of Land) Regulations, 1977 as amended upto 1997. The plot is intended to be disposed of by inviting sealed bids from eligible bidders through public advertisement.
The allottee would be required to enter into the Lease Deed with MMRDA. The Mumbai Metropolitan Region Development Authority (Disposal of Land) Regulations, 1977, along with its Form 'D' (Lease Deed) is enclosed as Annexure-D, The Lessee will be permitted as per the provisions of clause
(p) of the draft Lease Deed to sub lease or assign his lease- hold rights and interests to a different company without any transfer fee in the first instance.
1.8 Approvals The lessee shall obtain statutory approvals and pay all fees, duties, premium, charges (including stamp duty and development charges) for the entire development. 1.9 Taxes The lessee shall pay all municipal taxes, rates, charges including Non Agricultural Assessment, etc. during construction and thereafter."
9. The petitioner was the successful bidder in a public auction 9/17
912.WPL25336_2021.doc which had accordingly taken place and was allotted the land in question on payment of lease premium. An agreement between the petitioner and MMRDA was executed and registered by Agreement dated 23 March, 2014. Again, thereafter there was a Modificatory Agreement to the lease dated 6 July, 2017 and 15 May, 2018. The petitioner, after such allotment was lawfully made to it, has undertaken development of the said land and as noted above has constructed 9 towers, each of the tower being of about 35 storied having residential and commercial tenements as also and one school has been constructed. As noted above, the petitioner has already entered into agreements with about 2004 flat purchasers which are already registered.
10. After so much of water had flown under the bridge, it appears that the Collector, Mumbai has suddenly woken up from deep slumber to issue the impugned communication blanketly stopping the registration of documents qua the petitioners project lawfully constructions. The petitioner states that about 5000 units are being affected by such drastic action of the Collector, taken without notice to the parties who would be adversely affected.
11. According to Ms. Shastri, such communication is in accordance with law, referring to the provisions of Section 37A read with Section 295 of the Maharashtra Land Revenue Code (for 10/17
912.WPL25336_2021.doc short "MLRC"). It needs to be noted that Section 37A was introduced and brought on the law book for the first time in the year 2013. So also the proviso to Section 295, as relied upon by Ms. Shastri, which according to her has conferred power on the State Government to issue such communication, was also incorporated by amendment in 2016 Act with effect from 22 August, 2016 to which I would advert little later.
12. Ms. Shastri has relied on a copy of a document dated 29 December, 1992 stated to be a Government Resolution by referring to paragraph 5 therein, under which she states that the impugned action was taken. The said G.R. in paragragh 5 records as under:
"5. Without prior permission of the State Government, MMRDA shall not sell or transfer the said land. Also the land cannot be used for any purpose than the purpose for which it is sanctioned to be used. However, for the use of the land for truck terminus and/or incidental purposes (आनुषंगगक), it will be permissible to enter into sublease. The sublease as also the main lease shall not be for a long period."
13. Prima facie on a perusal of the above clause of the G.R. dated 29 December, 1992, it is clear that if at all the State Government had any grievance in regard to the change of user of the land, it could take up the matter with the MMRDA in a manner known to law. This apart, the grant of land vide Government Resolution dated 29 December, 1992 would be required to be read in the light of the further developments under order dated 3 October, 1997, 24 October, 2005 and 3 December, 2005 as noted 11/17
912.WPL25336_2021.doc above.
14. Now coming to the provisions of the MLRC, even on a perusal of the provisions of Section 37A of the MLRC, which relate to restrictions on sale, transfer, redevelopment, change of use, etc. in relation to Government land and nazul land, in my opinion, it does not further Ms. Shastri's contention. The said provision reads thus:
37A. Restrictions on sale, transfer, redevelopment, change of use, etc. in relation to Government land and nazul land -
(1) Every sale, transfer, redevelopment,use of additional Floor Space Index (FSI), transfer of Transferable Development Rights (TDR) or change of use of any Government land in Amravati and Nagpur Revenue Divisions including the Mumbai City and Revenue Divisions in the State, which is granted for various purposes under the provisions of this Code or rules made thereunder or any law relating to land revenue, before the commencement of this Code, including the nazul lands in Amravati and Nagpur Revenue Divisions shall be subject to taking the prior permission of the State Government.
(2) The State Government shall, while granting such permission as required under sub-section (1), recover such premium or charge and share of unearned income subject to such terms and conditions as may be specified, by general or special order, issued by the Government, from time to time :
Provided that, if the provisions of this section or of any such orders issued thereunder are inconsistent with the terms and conditions of the order of land grant or the lease deed executed prior to the commencement of the Maharashtra Land Revenue Code (Second Amendment) Act, 2012,(Mah. IV of 2015), the terms and conditions of such order of land grant or lease deed shall prevail:
Provided further that, in case of the nazul lands in Amravati and Nagpur Revenue Divisions, the provisions of sub-section (1) shall not be applicable with retrospective effect.
Explanation.--For the purpose of this section,--
(a) "Government land" includes the Government land or part of such land or building erected on such land or part thereof or any right or 12/17
912.WPL25336_2021.doc any benefit arising out of or share in relation to such land or building or part of such land or building;
(b) "nazul land" means the type of Government land used for nonagricultural purpose such as building, road, market, playground or any other public purpose or the nazul land which has potential for such use in future including such lands granted on long or short term lease or on no compensation agreement.
(emphasis supplied)
--------------------------
79. Section 36BC was inserted by Mah. Act No. 35 of 1974, s.3.
80. Section 37A was inserted by Maharashtra Land Revenue Code, Second Amendment) Act, 2012 (Mah. Act No. 4 of 2015), dated 03-03-2015. It is clear that by virtue of the proviso, the terms and conditions of the allotment of said land in favour of the MMRDA cannot be changed. This provision would certainly not confer any authority with the Collector to issue any such order against the petitioner or the persons who are purchasing the tenements/flats from the petitioner.
15. Insofar as Ms. Shastri's reliance on Section 295 of the MLRC is concerned, in my prima facie opinion, it appears to be totally misplaced. Section 295 provides for such lands and foreshore how to be disposed of. The provision needs to be extracted, which reads thus:
"295. Such lands and foreshore how disposed of:
It shall be lawful for the Collector, with the sanction of the State Government, to dispose of any lands or foreshore vested in the State Government in such manner and subject to such conditions as he may deem fit ; and in any such case, the land or foreshore so disposed of shall be held only in the manner, for the period and subject to the conditions so prescribed.
[Provided that, all leases granted by the State Government or the Collector of the land or foreshore vested in 13/17
912.WPL25336_2021.doc the Government for whatever term, which were in existence on or before the date of commencement of this Code or were granted thereafter, shall notwithstanding the conditions stipulated in such lease-deeds or lease-agreements or Grant orders executed by the Collector, be also subject to the following conditions, namely:--
(i) Leasehold rights in respect of the lands or foreshore vested in the Government given on lease may be further assigned or transferred only with the prior permission of the Collector on payment of such premium on account of unearned income and transfer fees or charges, at such rates as may be specified by the Government by an order, from time to time.
(ii) In the case of any contravention of the provisions of sub-clause (i), the lessee or transferor of such leasehold rights, shall be liable to pay penalty in addition to such premium and transfer fees or charges, at such rates as may be specified by the Government by an order, from time to time.]"
(emphasis supplied)
16. The proviso to Section 295 (supra) was incorporated by 2016 Amendment Act with effect from 22 August, 2016. Clauses
(i) and (ii) of the proviso provide that leasehold rights in respect of the lands or foreshore, vested in the Government given on lease may be further assigned or transferred only with the prior permission of the Collector on payment of such premium on account of unearned income and transfer fees or charges, at such rates as may be specified by the Government by an order, from time to time and in case of any contravention of the provisions of sub-clause (i), the lessee or transferor of such leasehold rights, shall be liable to pay penalty in addition to such premium and transfer fees or charges, at such rates as may be specified by the 14/17
912.WPL25336_2021.doc Government by an order, from time to time. It is astonishing as to how Ms. Shastri can rely on this provision to support the impugned order passed by the Collector blanketly prohibiting registration in the fact situation. If it is a question of any transfer in regard to the said land contrary to the terms of the lease, it is purely a matter between the State Government and the MMRDA. Neither the petitioner nor the flat purchasers have any privity whatsoever with the State Government. In any case, even on this count, the Collector ought to have taken up the issue with MMRDA for any action to be taken in regard to the said plot leased to the MMRDA. In any case, the development of the plot was in public domain, when the land was already subject matter of substantial development as also the buildings having come up.
17. In the above circumstances, the question is whether the Collector oblivious to the ground realities and as to what had transpired from the time the land was leased out to the MMRDA and subsequently alloted to the petitioner, could have issued the impugned communication, which would completely nullify the said substantial developments that had taken place in the intervening period between the MMRDA and its allottees and which actions were never questioned by the State Government. In my prima facie opinion, the Collector certainly could not have resorted to 15/17
912.WPL25336_2021.doc such drastic action.
18. Thus, prima facie it was wholly without authority on the part of Collector to issue the impugned communication. The impugned action of the Collector apart from being brazenly illegal qua the petitioners and its flat purchasers is wholly without application of mind. It has not only seriously affected valuable rights of the petitioner but several other flat purchasers guaranteed under Article 300A of the Constitution.
19. It cannot be overlooked that about 450 documents are now to be registered and purchasers of flat and/or commercial premises who acting on the bonafide and lawful actions taken by the petitioner would have obtained loans, as also they must be paying interest on such loans.
20. In these circumstances, before suffocating the rights of such innocent persons who are purchasers of the premises, the Collector ought to have acted with more responsibility. There appears to be apparent lack of responsibility and accountability in issuing a "fatwa" of the nature as impugned to the Sub-Registrar. Such actions prima facie are unknown to law, there is apparently a direct violation of the constitutional rights guaranteed to the citizens under Article 14, 19(1)(g) and 300A of the Constitution. 16/17
912.WPL25336_2021.doc In my prima facie opinion, such a serious consequence of breach of said constitutional rights of third parties, necessarily ought to have been thought about and realized by the Collector before issuance of the impugned order. This apart, the Collector has purported to be oblivious to the large number of documents which were already registered as noted above.
21. In the aforesaid circumstances, the action of the Collector prima facie is certainly quite severe and painful for the petitioner and to the purchasers of the premises, apart from being illegal. There is, hence, no alternative but to stay the impugned communication issued by the Collector dated 17 September, 2021 and consequently the impugned communication dated 6 October, 2021. Ordered accordingly.
22. The respondents are directed to file reply affidavit to this petition. Let the same be placed on record on or before 17 November, 2021.
23. List this petition for admission on 18 November, 2021.
24. Parties to act on the authenticated copy of this order.
(G.S.KULKARNI, J.) 17/17