Bombay High Court
Kala Nagar Co-Op Hsg Society Ltd vs The State Of Mah'Tra And Ors on 12 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:27555
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5332 OF 1997.
Kala Nagar Co-op. Hsg. Society Ltd.
being a Co-operative Society duly registered
under the Maharashtra Cooperative Societies Act
1960, and having its Registered Office at Kala
Nagar, Bandra (East), Bombay-400 051 ...Petitioner.
Versus
1.The State of Maharashtra
2. Minister For Revenue,
Government of Maharashtra,
having office at Mantralaya, Bombay.
3. Collector, Bombay Suburban District,
having office at 2nd floor, BMRDA Building
Bandra (East), Bombay-51. ...Respondents.
------------
Mr. Kishor V. Tembe for the Petitioner.
Ms. S. D. Chipade, AGP for the respondent-State.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 27th June, 2024.
Pronounced on : 12th July, 2024.
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JUDGMENT :
1. By this petition filed under Article 226/227 of the Constitution of India the Petitioner which is Co-operative Housing Society has challenged the order dated 20th September 1997 passed by the State of Maharashtra through the Minister for Revenue by which the Hon'ble Minister has quashed and set aside the order of the Commissioner for Revenue, Konkan division dated 30 th March 1996 and has thereby confirmed the order of resumption of the land passed by the Collector, Bombay Sub-urban District on 22nd August 1995. The petition came to be admitted on 12th November 1997. FACTUAL MATRIX
2. By virtue of two Government Resolutions dated 30 th November 1960 and 15th May, 1961 two contiguous pieces of Government land ad-measuring 13900 square yards and 16100 square yards respectively out of survey No.341 of Bandra (E) was allotted to the Petitioner on certain terms and conditions recorded in a Sanad executed by and on behalf of the Society. The terms and conditions of grant of land were contained in two Sanads dated 18th April, 1962. Pursuant thereto the petitioner paid the agreed occupancy price of Rs.30,000/- and vacant peaceful possession of land was handed over to the Petitioner.
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3. The Petitioner caused a layout to be prepared dividing the plot into 39 plots together with internal roads. Out of the said 39 plots, 38 plots were allotted to the individual members of the Petitioner- Society whereas the 39th plot which was numbered as serial No.38 was earmarked for being used as community hall which was a condition for grant of the land to the Petitioner-Society. The 38 plots were developed by the individual members. In the year 1985, an application was made by the Petitioner-Society for modification of the user of the plot earmarked for community hall partly for commercial user such as shopping center, bank etc and partly for community hall. By order dated 16th December 1985, the office of the Additional Collector issued an order sanctioning the modification of the Plot No.38 partly for commercial purposes of shopping center and bank etc and partly for the community hall on the terms and conditions contained in the said order. In anticipation of the modification, the petitioner had prepared tentative building plans for development of the said land and these proposed plans were submitted to the Additional Collector vide communication dated 17th December 1985. By the said communication, the Additional Collector was requested to finalize the land value through the valuation department as per the conditions of grant .
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4. On 9th February 1986 development agreement came to be
executed between the Petitioner and one Ramkrishna Development Corporation for development of the Plot No.38 ad-measuring 2100 square yards. By further agreement dated 10 th April 1986 certain clarifications were incorporated as regards the development agreement dated 9th February, 1986. In the year 1986, the Petitioners submitted the proposed building plans to the Planning Authority for sanction. The Planning Authority called upon the Petitioner to modify the building plans as the Plot No.38 was reserved in the development plan for the Welfare Center. The Petitioner therefore pursued the issue of de-reserving the said land with the State Government and on 13th January 1989 the Petitioner was informed about the State Government's decision to delete the proposed reservation and change of Zone for local commercial use.
5. The decision of the State Government to release about 285 plots from reservation which included the subject plot came to be challenged before this Court by way of Writ Petition No.1452 of 1989. This Court by order dated 15th May 1989 granted status quo in respect of the said plots which continued till May 1992 and upon revised development plans being sanctioned the subject land was released from the proposed reservation.
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6. On 11th May 1992, the Collector issued a communication to the Petitioner-Society recording that the land has been allotted to the Petitioner-Society subject to the terms and conditions contained therein. It was further recorded that during inquiry it has been noticed that some of the members of the Society have transferred their plots, bungalows without prior permission from the Government and no objection certificate has been issued by the Petitioner. The Petitioner was called upon to show cause as to why the land in question along with the construction thereon should not be confiscated without paying compensation as there is a breach of the terms and conditions of the sanction of land. The Petitioner vide communication dated 11th June 1992 responded denying the breach of terms and conditions. On 16th July 1992, the Collector stated that there was extension of time granted to the Petitioner by order dated 8 th February 1988 upto 15th December 1989. However by communication dated 13 th April 1992 further request was made for grant of extension of time upto 15 th December, 1994 for which sanction of the Government was necessary. It was stated that no clarification has been given by the Petitioner in the communication dated 13th April 1992 as to why the construction was not carried out within the time limit. It was further stated that the Petitioner-Society has appointed Ramkrishna Development Corporation as its lawful Attorney in connection with plot No.38 and rsk 5 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc as per the agreement executed with the Developer the right of selling the construction is given to the Attorney which is contrary to the terms and conditions of the order of allotment of land. By the said communication, the Society was called upon to remedy the breach within six months failing which the plot along with the construction would be resumed by the Collector.
7. By letter dated 1st January, 1993, the petitioner responded to the letters dated 11th May, 1992 and 16th July, 1992 pointing out that the reasons for extension of the time are stated in the communication addressed earlier. It was further clarified that the ownership of the plot and the auditorium to be constructed on the plot is to remain with the Petitioner-Society itself. It was further stated that as the use of the plot for commercial purpose was sanctioned, the developer was authorized to bring proper persons for giving the premises who would be admitted as nominal members of the Society. It was denied that the Society has given any right to the developer to effect sale of the construction. By communication dated 24 th February, 1993, the Collector did not accept the explanation given by the Petitioner in the communication of 1st January, 1993. On 7th July, 1993, the Petitioner- Society replied to the three letters dated 11 th May, 1992 , 16th July ,1992 and 24th February, 1993 stating the reasons for which the rsk 6 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc extension of time limit was sought. It was stated that though the extension was granted earlier upon the plans being submitted, the reservation of the plot of Welfare Center came to the knowledge of the Petitioner which was taken up with the Planning Authority and thereafter with the State Government and it is only on 10 th February, 1989 that a direction was issued to BMC Authorities by the State Government to approve the plans for construction of multipurpose hall with commercial use. It was further pointed out that before the plans could be approved by the planning authorities in view of the Writ Petition filed before the High Court the status-quo was granted and thereafter the development plan was sanctioned on 7 th May, 1992 and as such there is a delay which was beyond the control of the Society and extension of three years subsequent thereto was sought. The communication further addressed the issue of the construction of the community hall stating that considering the Society's financial position there was a modification to the change of use sought by the Society and the Society had informed the Government that the multipurpose hall for the Society can be constructed only by realizing and utilizing the profits out of the sale of the part portion earmarked for commercial use. It was further stated that personal discussion had taken place with the Additional Collector for payment of market price minus the payment already made at the time of taking possession and rsk 7 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc the Society has been informed to wait till the plans are being approved. As regards the agreement with the developer, it was stated that as per the development agreement the subject plot No.38 will remain as the Petitioner's property along with building constructed on it and thus there is no sale or transfer of the plot. By the said communication, the Petitioner once again called upon the Collector to inform the Petitioner about the amount payable to the Government for commercial use of the plot. Pertinently, by the said communication, permission to sell the commercial portion was sought from the Collector.
8. After a period of almost two years, on 28th June, 1995, the Collector issued show cause notice to the Petitioner calling upon the Petitioner to remain present for hearing on 13 th July, 1995 with documents to show cause as to why the entire land allotted to the Society should not be resumed along with construction thereon. In the show cause notice, it was stated that after the Society's letter dated 7th July, 1993, proposal has been submitted to the Government on 6th October, 1993 for granting extension of time upto 11 th June, 1996, which is pending for approval of the Government. The breach which was alleged in the show cause notice is that the sale of multipurpose auditorium and offices has been done by the Petitioner rsk 8 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc through the developer and by giving the rights of selling the construction to the developer, there is breach of the conditions. The second breach alleged was about change of the members and the carrying out additional construction without permission of the Government.
9. Petitioner by its letter dated 18th July, 1995 informed the Collector that the show cause notice dated 28 th June, 1995 was received by the Society on 17th July, 1995 and therefore the Society could not attend the hearing on 13 th July, 1995. It was stated that the plot had not been rented at any point of time and that extensive reply to the breaches alleged has already been given by communication dated 7th July, 1993.
ORDERS PASSED:
10. On 14th August, 1995 hearing was held by the Collector and on 22nd August, 1995, the Collector passed an order of resumption of land ad-measuring 2100 square yards and directed the Tahsildar, Andheri to take possession of the land forthwith and report the compliance. The Collector noted the following:
"a) Society was expected to plant 21 trees before 30 th September, 1987 but not planted single tree;
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b) Society could not obtain NOC from police commissioner for construction of hall and could not put the land for the purpose of grant;
c) Society could not carry out construction till 15 th December, 1989;
d) Occupancy price was not paid;
e) Society has entered into various litigation with Government forgetting that Government has granted them huge land at cheap rate;
f) Society has sold the land to private builder;
g) Society is earning money by giving land on rent for commercial hoarding;
h) Houses are used surreptitiously for commercial purposes."
The Collector held that the Society had violated the following conditions:
"a) Society could not carry out construction and violated condition No.3 of grant dated 30th September 1985;
b) Society has not planted trees as per condition No.9 of grant."
11. Being aggrieved by the order of resumption, the Petitioner filed a Petition in this Court being Writ Petition No.1890 of 1995 which came to be rejected by this Court on the ground that the impugned rsk 10 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc order is an appealable order. An appeal was preferred before the Additional Commissioner by the Petitioner-Society. By judgment and order dated 30th March, 1996 the Additional Commissioner allowed the appeal and quashed and set aside the order of the Collector dated 22nd August, 1995. The Additional Commissioner held as under:
"a) The plot forming part of land originally granted to Society occupancy price had been paid and only premium for change of user was to be paid;
b)The market value of plot has not yet been determined and no demand was made on Society;
c) The delay was on account of reservation in development plan and order of status quo passed by High Court;
d)The proposal for extension of time is still pending with State Government;
e)The development agreement does not provide for transfer of suit land to developer;
f) There is no provision for outright resumption of land and there is conflict between condition No.5 of Sanad and clause
(iv) of Agreement Schedule II to the Sanad.
12. At the instance of the Collector, the Hon'ble Minister initiated review proceedings purportedly under Section 258 of the Maharashtra Land Revenue Code, 1966 for reviewing the order dated rsk 11 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc 30th March 1996. Pursuant to the notice received by the Society, written statement came to be filed on 29 th April, 1997 in which an objection was raised as to the maintainability of Review Petition and submissions on merits were made. By the impugned order dated 20 th September, 1997, the Hon'ble Minister quashed and set aside the order of the Additional Commissioner and confirmed the order of the Collector dated 22nd August, 1995 directing resumption of the land. The Hon'ble Minister held as under:
"a) No permission was sought from Collector before entering into Development Agreement and thus there is violation of terms of grant.
b)The Additional Commissioner has ignored important material and review is permissible under Section 261/2 of Maharashtra Land Revenue Code, 1966.
c) The reasons given by Additional Commissioner are unacceptable."
SUBMISSIONS:
13. Mr. Tembe, learned counsel for the Petitioner has taken this Court minutely through the records and proceedings right from the order of allotment of the land and the terms and conditions contained therein, the correspondence between the parties and the orders of rsk 12 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc the Collector, Additional Commissioner as well as the Hon'ble Minister. He would submit that the review jurisdiction purportedly exercised by the Hon'ble Minister under Section 258 of the Maharashtra Land Revenue Code is not vested in the Hon'ble Minister. He submits that even if it is held that review is maintainable no grounds of review are made out. He would further submit that what was restricted as per the conditions of Sanad dated 18th April, 1962 was that the utilization of the subject land for the purpose of construction of multipurpose hall and non-transfer of the land or any portion thereof or any interest therein without previous written sanction of the Government. Pointing out to the terms and conditions of the Sanad dated 18th April, 1962 he submits that clause 2(iv) of Schedule II provides that in event of sale or transfer of land, the Government will be entitled to payment equal to half the increase of the price of the land. He would further submit that the user of the land for construction of multipurpose hall was modified by order dated 16 th December, 1985 which permitted construction for commercial purpose such as shopping centre, bank along with the community hall with the condition of payment to the Government the price of the possessory right under the current market rate as per Rules of 1971.
14. Drawing attention of this Court to condition No.4 of the order rsk 13 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc permitting modification, he submits that the value was required to be fixed by the valuation department and prior sanction of the Government was to be obtained for valuation. He submits that the Government had to obtain valuation and vide various communications the Petitioner Society called upon the Government to communicate the valuation so that the same can be paid by the Society.
15. He would submit that by reason of entering into the development agreement there was no transfer/sale of the property allotted to this Society. He has taken this Court through the various clauses of the development agreement and in particular the clauses imposing condition to obtain permission of the Collector in accordance with the conditions of Sanad, and that the property will remain that of the Society. He submits that all that was given was license and permission to the builders to enter upon the said plot. He submits that by reason of intervening events of reservation of the plot, filing of the petition before this Court, the development agreement though executed was not acted upon and could not be acted upon without prior permission of the Collector. He submits that the embargo which has been placed is the payment of the premium in event of sale or transfer of the land and the burden was upon the developer prior to the construction to take necessary permission of rsk 14 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc the Government and make necessary payments. He submits that no right of sale was given to the developer and only to reimburse the cost of the construction of the community hall, the Developer was permitted to sell some portion of the constructed structure to third party who will then be admitted as member of the Society. He submits that there was thus no sale of any portion of the property or any interest therein.
16. Pointing out to the show cause notice dated 28 th June, 1995 he submits that as far as extension of time for construction of the community hall is concerned, the show cause notice itself shows that proposal was pending before the Government. He submits that breach alleged was only on two grounds that is giving the subject plot on rent without prior permission of the Government and giving the right of sale to the developer. He would submit that apart from the above substantial grounds it was also stated that there is change of membership and carrying out additional construction, however same was not carried further. He submits that in the show cause notice there was no mention of any complaint having been received by the Government which fact finds place in the order of resumption. He would point out to the order of resumption which refers to certain complaints against the Petitioner earning money by giving land on rsk 15 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc rent for commercial hoardings as well as houses being used surreptitiously for commercial purpose, tuition classes, garage and business dealership etc. He submits that said allegation was not part of the said show cause notice and the Petitioner was not given copy of the said complaints.
17. He submits that the breach of non plantation of trees was not part of the show cause notice. He submits that the other observation in the impugned order was as regards non-payment of occupancy price and execution of the development agreement. He submits that no demand was raised upon the Petitioner qua the occupancy price. He submits that the whole attempt appears to be to resume the land under any circumstances due to the increase in the real estate value. He would further point out the findings of the Additional Commissioner accepting the contentions of the Society.
18. He submits that the Hon'ble Minister has quashed and set aside the order of the Commissioner only on the ground that the reasons given by the Commissioner are not acceptable. Pointing out to the affidavit in reply filed by the Government, he submits that as far as the occupancy price is concerned, the pleading in the reply is that the Society has not started commercial use and hence there is no question of fixing of occupancy price. He submits that being the stand of the rsk 16 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc Government, the Collector could not have passed the order of resumption on the basis of the occupancy price not being paid. He would further submit that the animosity is reflected from the pleadings in the affidavit-in-reply.
19. Mr. Tembe would further point out the prayers in the petition and would submit that interim relief was granted and was operating till the pendency of the present petition. He submits that at the time of granting of interim relief it was not pointed out by the State that symbolic possession had been taken whereas for the first time in the affidavit of reply at page 261 a panchanama is produced stating that on 25th August, 1995 symbolic possession has been taken of the suit land. He submits that the Petitioners were not present and were not given any notice before the said panchanama was executed.
20. Per contra, Learned AGP submits that land was allotted to the Society subject to certain terms and conditions. She has taken this Court through the terms and conditions and would submit that there has been a breach of the conditions and therefore the State Government was empowered to resume the land. She would further submit that the allotment was made for the purpose of community hall and was thereafter modified to permit the Society to use the same for commercial purposes and even the conditions while granting rsk 17 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc the modification are violated. She has invited attention of this Court to the conditions forming part of the order dated 13th September,1985. She would further submit that the breaches which are alleged are as regards the failure to pay the occupancy price at the market rate in accordance with Rule 31 of the Maharashtra Land Revenue Code (Disposal of the Land Rules) 1971 and the non- construction by the Society of the community hall within a period of two years. She submits that show cause notice was issued pointing out the violations by the Society and in particular the violation of entering into development agreement which amounts to sale of the property without the prior permission of the Collector. She submits that it is not disputed that the Society has entered into a development agreement. She would further point out that by circular dated 22 nd May,1990, it has been made clear that the Collector is entitled to take appropriate action of resumption upon violation of the terms and conditions and it is not necessary to obtain approval of the State Government by the Collector. She has taken this Court in detail through various clauses of the development agreement and would submit that the clauses of the agreement makes it evident that under the guise of development agreement what has been in fact been done is sale of the Government land without prior permission of the Collector.
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REASONS AND ANALYSIS:
21. In accordance with the Rules framed under the Maharashtra Land Revenue(Disposal of Government Lands) Rules, 1971 an agreement was passed by the office bearer of the Petitioner Society agreeing to occupy the subject land on the conditions stated in the agreement and in particular Clause 5 thereof provided that the Society shall not at any time transfer the land or any portion thereof or interest therein without the previous written sanction of the Government. Schedule II of the agreement sets out the special conditions of the grant and the conditions relevant for our purpose is Condition No 2(a), (b)(ii), (iv), (ix) and (xii) and reads thus:
"(a) That on the said land buildings of a substantial and permanent character shall be built within a period of two years from the date hereof or within such period as may be fixed by lawful authority.
b(ii) That the Society shall not sell or in any way transfer by mortgage lease etc any of the plots out of the land to any person other than one of their members or let any tenements to non members or let any tenements to non members without obtaining previous approval of the Collector, B.S.D in writing.
(iv) that in the event of sale or transfer of the lands government will be entitled to premium equal to half the increase in price of land.
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(ix) That the grant shall be liable to be cancelled and land shall be resumed to Government without any compensation for breach of any of the conditions for breach of any of the conditions on the Collector's giving notice of the breach and the Society failing to remedy the breach within six months from the date of notice.
(xii) That the Society shall use the land admeasuring 2,100 square yards for the construction of the Multi purpose Hall."
22. From reading of the terms and conditions of the grant, it is clear that there is no absolute embargo on the sale or transfer of the land and the requirement is of prior sanction of the Government before the alienation takes place. The entitlement of the Government upon alienation is premium equivalent to half the increase in price of land. The Government is entitled to resumption of land in event of breach of condition which breach is not remedied by the Society within the stipulated period after receipt of notice.
23. In consonance with Condition No 2(b)(ix) of the Agreement, a show cause notice dated 28th June, 1995 was issued by the Collector to the Society alleging the following breaches:
1. The subject plot was being given on rent without the prior permission of the Government;
2. The developer has been given right of selling the construction in breach of the terms and conditions of sanction of land;
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3. There has been change of membership and carrying out additional construction which amounts to breach of the terms and conditions of the allotment;
24. In so far as the change of members and carrying out additional construction is concerned the same is not referable to subject plot ad- measuring 2100 square yards which was required to be developed into multipurpose community hall.
25. The reasons for passing order of resumption of land as discerned from the order dated 22nd August, 1995 is that non- plantation of trees, non user for the purpose allotted, no construction within the prescribed period, non payment of occupancy charges for commercial use of land, receipt of complaint of sale of land to private builder, giving land on rent for commercial hoarding, houses being used for commercial purpose and entering into development agreement. The sum and substance of the above stated observations resulted in the finding of the Collector of breach of two conditions i.e. non construction within 2 years and non planting of trees.
26. It is settled position in law that the order cannot travel beyond the breaches alleged in the show cause notice. The purpose of the show cause notice is to make the Society aware of the breaches on the rsk 21 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc basis of which the order of resumption is likely to be passed if the breach is not remedied and satisfactory explanation is not tendered. The show cause notice in the present case was restricted only to land being given on rent, the execution of development agreement and change of members. The land sought to be resumed is land earmarked for construction of community hall and other commercial purposes and therefore change of members in respect of the other land granted is irrelevant. Considering the breaches alleged in the show cause notice and the findings on issues disclosed in the order of resumption which travels beyond the show cause notice, the order of resumption is liable to be set aside on this solitary ground.
27. Apart from the above, there is total non application of mind as regards the findings of Collector. As regards non obtaining of police permission, the No objection issued by the Commissioner has been annexed at page 166 of the petition. The resumption order holds that no construction has been carried out within the additional period of extension of 15th December, 1989 and even till today, which is in teeth of the show cause notice which states that the proposal for extension of construction is pending for consideration of the State Government. That apart there is valid explanation tendered for not carrying out the construction within a period of two years. Considering the period of rsk 22 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc two years contained in Schedule II of the agreement of April 1962, the period of two years would have expired in the year 1964 and an extension was granted by the Government upto 15th December, 1989. Subsequent thereto as the land was reserved for Welfare Centre the community hall could not have been constructed without land being released from reservation and upon its release there was an order of status quo by the High Court till the year 1992. It is thus clear that construction could not be carried out by the Society for the reasons which are beyond its control for which the Society cannot be held responsible. Furthermore the proposal for extension of time was pending for consideration before the State Government and it is not shown that the said proposal had been rejected. Without any adjudication of the proposal by the State Government, the Collector could not have issued the show cause notice dated 28 th June, 1995 alleging non construction within the prescribed period.
28. In so far as the observation of non payment of occupancy charges is concerned, the Collector lost sight of the fact that occupancy charges were paid at the time of taking possession and what remained was payment of premium upon change of user. Immediately upon modification of change of user, a request was made by the Society by its communication dated 17 th December 1985 to rsk 23 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc finalize the land value so that the amount can be paid by the Society and the plans were also enclosed showing the proposed development. There is nothing on record to show that the valuation was fixed and any demand was raised upon the Petitioner Society which the Petitioner had failed to comply with. On the contrary, the reply of the State Government specifically pleads that as Society has not started commercial use, there was no question of fixing the occupancy price and commercial use charges. The pleading is that as grant was incomplete the land remains with the Government. The deponent in Affidavit-in reply has lost sight of the fact that the occupancy price has already been paid and what was required to be paid was only premium which itself has to be calculated by the Government and communicated to the defendant.
29. Now coming to the breach alleged of sale of land without permission of Government by virtue of executing the development agreement, the relevant clauses of the agreement reads thus:
" 9(d) To apply for and obtain from the Additional Collector of Bombay Suburban District, any permission as may be required to be obtained under the provisions of the Sanads herein before recited as well as the said Order dated 16 th December 1985 of the said Additional Collector in respect of the construction of the building."
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14. The development of the said plot by construction of the Building as aforesaid shall be at the entire risk as to costs and expenses thereof and on the entire account of the Builders. The Building to be constructed on the said plot will be in accordance with the Scheme of the Competent Authority/ State Government under the said Urban Land (C & R) Act l976 and the relevant Acts and also in accordance with the development rules and regulations for the time being in force and also as per terms and conditions laid down in the Additional 985, Collector, B. S. D.s order dated 16th December 1985 being Annexure A hereto.
16. The Society hereby gives license and permission to the builders to enter upon the, said plot on the execution hereof with full right and authority to commence carry on and complete construction of the Building thereon in accordance with the permission herein contained. The builders shall also display their name board on the site if they so desire.
17.......The Agreement shall contain a provision that the acquirer of any premises will accept a Lease of the premises form the Society for a period of 99 years with the option for renewal for the same period at a nominal rent of Re 1/ per year in terms of the Draft, approved by the Society.
18. The Builders shall scrupulously observe and perform the terms and conditions of the said two Sanads hereinbefore recited so far as they relate to plot no. 38 and as well as the terms and conditions of the Additional Collector's said order dated 16th December,1985 being Annexure A hereto and they will be responsible for any consequences arising out of breach of any of such terms and conditions.
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19. Whatever amount is required to be paid to the Government of Maharashtra in terms of the said Additional Collector's Order dated l6th December, 1985 particularly in terms of clause (1) and (2) thereof will be paid by the Builders alone and the Builders hereby agree to pay the same to the Government or to the Society for being paid to the Government on demand without fail.
24. The builders shall never claim any right of possession of the said plot or the construction work and the legal possession will remain and shall be deemed to remain always with the Society."
30. The recitals and the covenants of the development agreement dated 9th February, 1986 would indicate that the Developer was put to clear notice about the conditions of grant of land and that the same were required to be complied with. Further, by the agreement there was no sale of the land to the Developer and what was granted was license to enter into the land and carry out constructions. For purpose of recovering the cost of construction permission was granted to sell the constructed commercial premises to third party who shall then be admitted as member of the Society. What was to be done by the Society upon change of user of the land partly to commercial purpose i.e to construct and sell the constructed premises was sought to be done through the Developer. There was no parting with any right or interest in the subject land and agreement was subject to the conditions of grant of land to the Society as well as modification rsk 26 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc which was permitted by the Government permitting the commercial use of the subject land. In particular the development agreement provides that the developer can dispose of the tenements constructed however the transferees will be admitted as members of the Society and that ownership of the building shall vest in the Society and under no circumstances the developer shall have any lien over the said building. Clause 9(d) in particular provides for obtaining permission from the Additional Commissioner.
31. The Collector without considering the true nature of the agreement and without noticing the fact that the clauses of the agreement itself provided that no construction can be carried out without the prior permission of the Collector which ensured compliance of conditions of grant has held that right to sell has been given to Developer. The Collector while issuing the order of resumption has failed to appreciate that there was no construction which was carried out and what was executed was only development agreement which was also to take effect only after prior permission was obtained by the developer from the Government in accordance with the grant. It was nobody's case that without obtaining permission construction has been carried out. By the development agreement what was given was only a license to carry out construction which rsk 27 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc construction was also required to be carried out after prior permission of the Collector. By no stretch of imagination upon holistic reading of the development agreement, it can be said that the said agreement is an agreement for sale. Even if the developer had been given permission to construct commercial premises and to sell, the same was subject to the prior permission and terms and conditions of the grant and thus could not form the ground for resumption of the land.
32. The observation in the order of resumption is that the land was given on rent for commercial hoardings and for commercial purposes. Perusal of the show cause notice would indicate that there is no reference to the complaint received by the Government and in event the Collector intended to rely upon the material in the form of complaint etc., it was necessary that the copy thereof be made available to the Society so that the same could have been sufficiently explained by the Society. The observation of the Collector does not indicate any material before the Authority apart from the complaint in order to conclude that the land was given on rent by the Society. In the absence of any cogent material to indicate that the land was rented by the Society, the observations of the Collector in that regard are legally unsustainable.
33. In the appeal which was filed before the Commissioner the rsk 28 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc order of the Additional Collector was set aside. As against which at the instance of the Collector the Hon'ble Minister has exercised the power of review. Perusal of the communication dated 10 th October 1997 forwarding the copy of the order to the Society shows that the order has been passed under Section 258 of the Maharashtra Land Revenue Code. Provisions of Section 258 of MLRC provides that review of the orders by the State Government of the order passed by itself or any of the predecessors in office and only on the ground of discovery of new and important matter of evidence , some mistake or error apparent on the face of record and for any other sufficient reason reason. I find considerable force in the submissions of Mr. Tembe, that the review jurisdiction could not have been exercised by the Hon'ble Minister under Section 258 of the MLRC. The specific objection to the exercise of review jurisdiction taken by the Petitioners has been dealt with by holding that the exercise was permissible under Section 261/2. There is no such power which vests in the Hon'ble Minister under Section 261/2 of MLRC. It is well settled that there cannot be any inherent power of review which is a creature of a statute and without an express power of review being conferred, the same could not have been exercised by the Hon'ble Minister. The provisions of Section 258 of the MLRC provides for the power of review only where the orders are passed by the Hon'ble Minister or rsk 29 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc the predecessors in office. That apart, the provisions of sub-section (2) of Section 258 of the MLRC circumscribes the power of review and the order of the Hon'ble Minister exercising the review jurisdiction is only for the reason that the Commissioner ignored certain important facts and evidence. As to what are the facts and evidence which are ignored by the Commissioner does not find the mention in the order of the Hon'ble Minister and the only ground for reviewing the order is that the reasons given by the Additional Commissioner are not acceptable. Thus there are no reasoned findings to support the review of the order.
CONCLUSION:
34. The order of resumption passed by Additional Collector is unsustainable for the following reasons:
"a) The breaches alleged in the show cause notice dated 28 th June 1995 was sale of cultural auditorium through Developer and changing of members and carrying out additional construction whereas the order of resumption factors in various issues not forming subject matter of show cause notice.
b) Even in respect of those issues, there is factually erroneous finding as regards obtaining NOC from police authorities;
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c) The finding of non construction for period of two years suffers from infirmity as the intervening events were not considered neither pendeny of proposal before the State Government.
d) The order of resumption proceeds on incorrect reading of the Development Agreement and does not consider the true nature of the agreement especially the clauses pertaining to compliance with conditions of grant."
35. The impugned order of Hon'ble Minister is legally unsustainable as it exercises power of review to correct the order of Additional Commissioner without jurisdiction leading to jurisdictional defect. Further no grounds for review are disclosed in the impugned judgment.
36. In light of the above discussion, the impugned order of the Hon'ble Minister dated 20th September, 1997 and the order of Collector dated 22nd August, 1995 are hereby quashed and set aside. Consequently, any steps taken by the Respondents in pursuance of the impugned orders including taking of symbolic possession, are hereby set aside. Petition succeeds. Rule is made absolute in above terms. In view of disposal of petition, Interim/Civil Applications, if any, rsk 31 of 32 ::: Uploaded on - 12/07/2024 ::: Downloaded on - 26/07/2024 03:25:21 ::: WP-5332-97-F8.doc do not survive for consideration and stand disposed of.
[Sharmila U. Deshmukh, J.]
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