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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2641 OF 2000
Shikalgar Co-operative Housing Society, Through its Chairman .. Petitioner
Mr. Kailas Dewal a/w. Mr. Yash Dewal and Mr. Sham Thakur, Advocates for Petitioner.
Ms. Sulbha D. Chipade, AGP for Respondent.
Mr. Yuvraj Bangar, Tahsildar (Revenue) MSD, Bandra Present. ......…...........
JUDGMENT
1. Heard Mr. Dewal, learned Advocate for Petitioner and Ms. Chipade, learned AGP for Respondent - State.
2. This Writ Petition is filed in the year 2000 by the Society. It is nomenclatured as Writ Petition No.2041 of 2000. It challenges the legality and validity of twin orders dated 06.03.1999 passed by the Collector and 17.07.1999 passed by the Additional Commissioner, Konkan Division, Mumbai, inter alia, pertaining to resumption of the land allotted to the Petitioner - Society in the year 1985. Pursuant to filing of the Petition and its admission, directions were given to the State Government to consider the Revision filed by the Petitioner - Society. By virtue of order dated 14.09.2012, State has upheld the 1 of 17 order dated 17.07.1999 passed by the Additional Commissioner, Konkan Division. Thus in effect challenge in the Petition is to the concurrent orders dated 06.03.1999 (passed by the Collector) and dated 17.07.1999 (passed by the Additional Commissioner, Konkan Division) and order dated 14.09.2012 passed by Respondent No.1 - State subsequently.
3. The following relevant facts are required to be gone into for the purpose of deciding the present Writ Petition. Principal contested is the State of Maharashtra.
3.1. Members of the Petitioner - Society registered the Society on 18.07.1984. There were 20 members. They applied to the State of Maharashtra for grant of a plot of land to construct residential houses for the Members of the Society. Petitioner consisted of Members from Backward Class (Nomadic Tribe) Community and were therefore eligible for grant of land, free of cost under the Backward Class Cooperative Housing Society Scheme.
3.2. Petitioner was granted plot No.43/111-D out of Survey No.825 (part) at Village Ambivali admeasuring 779.62 square meters on 15.06.1985. As per the terms and conditions of the Agreement of grant, Petitioner - Society was to construct the building on the said plot of land within two years from the date of handing over possession. Possession was handed over to Petitioner - Society on 20.09.1985 and 2 of 17 thus case of Respondent - State is that construction of building ought to have been completed on or before 19.09.1987. Petitioner - Society was unable to complete construction of building within two years. However steps were taken by Petitioner to construct the building in 1985 as building plans were submitted in 1985 itself but the Planning Authority namely Bombay Municipal Corporation (for short "BMC") did not approve the plans due to area discrepancy in respect of land allotted to Petitioner - Society. After much persuasion and steps taken to resolve Petitioner's difficulty, it was gathered that there was a DP Road to the extent of 130 square meters passing through the plot allotted to Petitioner - Society which resulted in area discrepancy due to which plans filed by Petitioner - Society were not sanctioned.
3.3. On 01.02.1990, Additional Collector issued letter to BMC granting benefit of 60 feet DP Road passing through the plot allotted to Society and also permitted Society to submit letter for extension of time to complete construction of building. This was because building plans were approved by BMC and Commencement Certificate (CC) was granted to Society to complete construction of the building later after survey and measurement was effected. It is seen that on 19.07.1989 followed by a second representation dated 28.12.1989, request was made by Society to Collector for measurement and demarcation of its boundaries. It is only on 16.09.1989, Petitioner - Society's plot was surveyed, measured and certified for the first time and it showed that 3 of 17 Society was holding plot admeasuring 780.04 square meters.
3.4. On 12.01.1990, Petitioner - Society filed letter seeking extension of time for completing construction. In that regard, it is seen that Petitioner - Society deposited sum of Rs.26,100/- with the BMC as per order dated 16.03.1999 for revalidation of the approved plans. Petitioner - Society also deposited sum of Rs.56,095.51 with State Government towards land cost and development charges alongwith a further deposit of Rs.2,90,000/- with BMC for development of infrastructure, I.O.D., water deposit, electricity deposit, staircase premium etc.. That apart, Petitioner - Society also paid sum of Rs.5,50,000/- to the Contractor and liaisoned Architect for completing construction work and have been regularly paying BMC Assessment Tax and Revenue Tax in respect of the allotted plot and have paid amount of Rs. 2,00,000/- till date.
3.5. It is seen that one of the reason as to why the delay occurred was due to the communal riots in 1992 - 1993 when houses of 12 Members of the Society were completely ransacked and entire record of Society stored in Society's office and Chairman's office was completely destroyed. Society reconstructed the entire record and made Application pursuant to which permission was granted resultantly leading to delay in completing construction. Society Members also faced the ignominy of not been able to raise further loan 4 of 17 and borrowings from the Bank since plans were not revalidated and had expired for quite some time. In the meanwhile, it is seen that Society was issued show cause notice dated 09.11.1998 by Collector as to why the said allotment of plot should not be resumed by Collector in view of construction of Society building not been completed within the stipulated prescribed period of two years and Society having breached condition No.7 of Agreement of grant dated 15.06.1985.
3.6. Society filed its Reply dated 16.11.1998 and hearing was granted on 17.11.1998, pursuant to which Collector passed the impugned order dated 06.03.1999 resuming the said plot and directed Petitioner - Society to hand over physical possession of the same alongwith all improvements thereon.
3.7. Being aggrieved, Petitioner - Society filed Statutory Appeal before Additional Commissioner, Konkan Division. By order dated 17.07.1999, Additional Commissioner, Konkan Division upheld the order passed by Collector of resumption of plot by upholding the ground that Society had breached condition No.7 of original grant document and admittedly did not construct building of Society within the stipulated period of two years.
3.8. Being aggrieved, present Petition was filed on 23.09.1999. Order passed by Additional Commissioner, Konkan Division was stayed. Rule was issued on 16.08.2000. When Petition was heard 5 of 17 previously, directions were passed to State Government to consider the Statutory Appeal and accordingly in compliance of twin orders dated 23.08.2012 and 10.09.2012, the Additional Chief Secretary (Revenue) Government of Maharashtra heard Petitioner and passed order dated 14.09.2012, inter alia, upholding the twin orders passed by Collector (06.03.1999) and Additional Commissioner, Konkan Division (17.07.1999).
3.9. Hence, the present Writ Petition.
4. Mr. Dewal, learned Advocate for Petitioner - Society would submit that Society was granted the subject plot of land on inalienable and impartible tenure as Occupant Class - II under the Maharashtra Land Revenue Code, 1966. He would submit that the land was sanctioned and granted to Petitioner - Society under the Backward Class Co-operative Housing Society Scheme which was the old Post War Rehabilitation (PWR) Scheme 219 for which Society was eligible for concession provided land was utilized for housing of members of the Society.
4.1. He would submit that the grant document dated 15.06.1985 is appended at Exhibit 'B' - page No.16 of Petition perusal of which would reveal that one of the condition stipulated therein was that Petitioner - Society was to use the said land and construct residential building within three years from the date of possession. He would 6 of 17 submit that Society took immediate steps, but it was realized that there was discrepancy in the area of land which was allotted to Society as against the allotment order for which Society had filed representation with the concerned Department. He would submit that in the event of breach of any condition the grant in clause 17 provided the remedy and allowed Society to remedy the breach within a period of 6 months from the date of issue notice by Collector for the said breach. He would submit that breach in the present case occurred due to a genuine reason in as much as despite Society submitting its building plans in the year 1985, Planning Authority namely BMC did not approve the same plot due to area discrepancy which was resolved only after Society's plot was surveyed and measured and report dated 16.09.1989 was filed certifying that plot held by Society admeasured
784.04 square meters. He would submit that, apart from above, Society also faced the problem about area discrepancy due to the 130 square meters 60' DP Road passing through the plot. He would submit that after repeated representation, it was only on 01.02.1990 that Additional Collector addressed letter to BMC by giving FSI benefit of the DP Road to Society by virtue of which Society was allowed to submit letter for seeking extension of time to complete construction.
4.2. Thirdly he would submit that when the aforesaid permissions were procured and building of Society was built in 1992 - 1993 communal riots affected Members of Society in view of its situation 7 of 17 and location, resultantly leading to members abandoning their houses and rushing to their villages to protect their lives. He would submit that it was only after a period of one and half year when Members returned, they found that their houses were completely ransacked and destroyed including all records of Society from the Society's office.
4.3. He would submit that it is only after the aforesaid incidents that Society Members resurrected themselves and obtained fresh permissions pursuant to which they deposited all requisite statutory amounts with the Competent Authority towards revalidation, premium, scrutiny fee, contractor fee etc.. He would therefore submit that in view of conditions contained in the grant document dated 15.06.1985, condition stipulated in clause 7 thereof requiring the Society to complete construction of building within 3 years from date of possession cannot be strictly viewed against the Society in view of the aforesaid reasons and most importantly the fact that Society was eligible to make Application for extension of time under clause 17 of the same Agreement of grant and in the peculiar facts and circumstances of the present case. He would therefore submit that the twin orders dated 06.03.1999 and 17.07.1999 passed by the Statutory Officers alongwith the subsequent order dated 14.09.2012 passed by the State are all required to be quashed and set aside. 8 of 17
5. PER CONTRA, Ms. Chipade, learned AGP appearing for the State and its Statutory Officers would draw my attention to the Affidavit-in-Reply filed by Ramakant Vasant Bhosale, Secretary to the Collector dated 24.11.2000 appended at page No.49 of the Petition and contend that there is an admitted breach by Society in respect of condition stipulated in clause 7 of the grant document dated 15.06.1985 whereby Society did not complete construction of building for its Members within the stipulated period of 3 years. She would submit that building's plans were approved in the year 1989 - 1990 and it was granted CC on 01.11.1989 despite which Society did not complete construction. She would submit that Society is guilty of delay and laches since it requested the Corporation for demarcation of boundaries of the subject plot in the year 1989 without seeking extension of the time for completion of construction.
6. She would submit that Society ought to have approached for extension within a period of six months as stipulated in clause 17 after the period was over, but in the present case there were delay of about 3 years which constituted a clear breach of terms of the grant. In that view of the matter, she would submit that orders dated 06.03.1999 and 17.07.1999 are required to be upheld alongwith the order dated 14.09.2012 and the Petition be dismissed. 9 of 17
7. I have heard the submissions made by Mr. Dewal, learned Advocate for Petitioner and Ms. Chipade, learned AGP for Respondent - State with their able assistance perused the record of the case. Submissions made by the learned them have received due consideration of the Court.
8. At the outset, it is seen that the subject plot of land has been allotted to the Society under a special scheme of Government namely the Post War Rehabilitation Scheme 219 under the Backward Class Cooperative Housing Society Scheme. It is seen that it is true that Society was unable to complete construction within the stipulated period of 3 years as stated in the grant document, but it cannot be said the Society derelicted and was responsible for the same.
9. Record shows that after possession was handed over on 20.09.1985, Society has immediately filed building plans in the year 1985 itself. Society was allotted plot No.43/111-D out of Survey No.825 (part) at village Ambivali. It is seen that BMC did not approve the area statement and raised a query with respect to area allotted to Society in view of the reservation of 60' DP Road area of 130 square meters passing through the said plot of Society.
10. In view of BMC not approving building plans submitted in the year 1985 Society was left to represent and espouse its cause for the above grievance. Record clearly shows that by letters dated 10 of 17 19.06.1989, 11.07.1989, 28.12.1989 and 12.01.1990 Society applied to the Collector, Bombay Suburban District for extension of time for construction as per condition No.7 in view of genuine difficulty and problems faced by Society pertaining to area discrepancy resulting in non-approval of the building plan.
11. It is also seen that the building plan of Petitioner - Society was approved in the year 1989 - 1990 and CC dated 01.11.1989 was issued to Society pursuant to demarcation of area granted to Society. It is seen that since construction was not completed, the Society once again sought extension of time by letter dated 27.01.1983 for completing construction. One of the reasons why this extension of time was sought was due to the peculiar situation which Members of the Society found themselves in. It is seen that during the 1992 - 1993 communal riots, Members of the Society had to abandon their houses due to the riot situation and location of Society building and had to flee from their houses for safety. It is also an admitted position that Members of the Society returned after a period of one and half year only to find that their houses were ransacked and most importantly entire record of Society maintained in the Society's office was completely vandalized and destroyed.
12. It is in this context that Members of the Society were not in a position to complete construction of the building and therefore by 11 of 17 letters dated 25.11.1994 and 02.01.1996 they repeatedly applied for extension of time. The order dated 06.03.1999 passed by Collector for resumption of allotted plot when seen is a cryptic order. All that the order mentions is violation of condition No.7 namely condition requiring construction of building by Society within a period of 3 years and therefore land is directed to be resumed.
13. It is seen that the only reason offered in the said order is that Petitioner - Society had no difficulty in getting the time period extended, but they did not apply for extension. This specific reasoning by Collector in order dated 06.03.1999 is contrary to the record of the case. It is prima facie seen that Society has applied for extension of time on 7 different occasions in view of the aforesaid genuine difficulties faced by Society which has been alluded to herein above.
14. It is only in this context that Collector has passed the impugned order dated 06.03.1999. The said order has been upheld by the Additional Commissioner, Konkan Division in Statutory Appeal by assigning the same reason. It is seen that both the Authorities below have failed to consider the fact that plans of the Society were submitted in the first instance in the year 1985, but they were not approved due to area discrepancy which was resolved by the Additional Collector only in the year 1990. The letter dated 01.02.1990 addressed by Additional Collector to BMC categorically 12 of 17 states that Society is given the benefit of 60' DP Road by allowing Society to use the FSI of the said road and Society was also specifically permitted to submit letter for extension of time to complete construction. This letter by Additional Collector has not been taken cognizance of by Collector while passing the order dated 06.03.1999. It is further seen that plans filed by Society were revalidated after the area of the Society was surveyed, measured and certified by report dated 16.09.1989 pursuant to which Society paid all statutory dues namely amount of Rs.26,100/- towards revalidation fees and all such necessary amounts which are referred to and alluded to herein above.
15. Record also shows that members of Society faced issues in obtaining loans from Bank and financial institutions and had applied to HUDCO financial organization for loan of Rs.20 lakhs for completing construction. It is also seen that in the event if there was a breach of any condition of the Agreement for grant dated 15.06.1985 clause 17 of the same gave an opportunity to the Society to remedy the said breach. The aforesaid issues have not been considered at all by both the Authorities as well as the State Government.
16. Be that as it may, by twin orders dated 23.08.2012 and 10.09.2012 this Court allowed Society's representation to be considered by the Competent Authority namely State. The Society made a fresh representation dated 30.08.2012 seeking certain 13 of 17 additional demands, inter alia, pertaining to the Society been allowed to enroll 30% open category members instead of 10% and 20% of the commercial use of land be allotted to Society. The said representation has been rejected by State Government being new demands and not in consonance with the original grant document dated 15.06.1985. After perusing the record and the fact that Society faced genuine difficulty which is narrated herein above and most importantly plans of Society having been revalidated by BMC and Society having deposited all the statutory dues. Passing of order dated 06.03.1999, in my opinion, is not only harsh but arbitrary and high handed in the given facts. The difficulties faced by Society were known to the Authorities, the said difficulties were also documented. The said difficulties were not on account of the conduct of Society, but they emanated from allotment of the subject plot of land made to the Society. It is seen that BMC did not approve building plans submitted by Society in the first instance in the year 1985 due to area discrepancy which was resolved only in the year 1989 pursuant to which Society paid further amounts for revalidation of earlier building plans and also deposited all statutory dues. If such was the case, then the same ought to have been considered by Collector while passing order dated 06.03.1999. There is a complete go by given by the Collector as also the Appellate Authority i.e. the Additional Commissioner while passing orders dated 06.03.1999 and 17.07.1999 to the above facts and therefore in that 14 of 17 view of the matter, the aforesaid twin orders are not sustainable in law. They are required to be interfered with and are quashed and set aside.
17. State Government has filed Affidavit-in-Reply dated 13.01.2012 of Principal Secretary stating that if Petitioner - Society files the Statutory Appeal against the order of the Additional Commissioner, the State Government shall consider the case of the Petitioner's in the light of the existing Government Resolution dated 21.11.1957 and the decision will be taken at the Government level within 6 months after filing of the Appeal. It is seen that the said Affidavit also refers to special factors which prevented the Members of the Society from constructing the building within the stipulated period. The said Affidavit also considers the fact that on the basis of their income, hardships and other relevant considerations, members / Society may have to pay penalty as decided by the State Government. If the Members of the Petitioner - Society desire to construct on the said plot allotted to them, they can apply to the State Government for seeking such permission. It is therefore directed that if any such Application is made by the Society to the Government, the State Government is directed by this Court to decide the said Application on the basis of the policy framed by the Government as contained in the Government Resolutions dated 21.11.1957 and 25.05.2007 as applicable strictly in accordance with law. 15 of 17
18. The State Government is directed to consider the genuine difficulties of the Members of the Society, if at all any penalty is to be levied on them and shall consider the same in the light of the above facts and circumstances.
19. In so far as the order dated 14.09.2012 passed by the State Government is concerned, that order upholds the order dated 17.07.1999. However reasons given in that order take in account the additional demand made by the Society. The said additional demand made by Society is fourfold namely land be allotted to them at the applicable rate during the year 1985, Society be allowed to enroll 30% open category instead of 10%, Society be allowed 20% of land use for commercial purpose and Society be permitted to include MIG / HIG open category members as per prevailing / admissible FSI. In so far as these four additional demands are concerned, the order dated 14.09.2012 has been correctly passed since the original terms of grant cannot be changed. In so far as upholding orders dated 06.03.1999 and 17.07.1999 are concerned, the order dated 14.09.2012 is required to be interfered with and to that extent the said order is quashed and set aside. Resultantly Petition succeeds and stands allowed in terms of prayer clause 'a'. 16 of 17
20. Writ Petition is allowed and disposed.
21. However, there shall be no order as to costs. [ MILIND N. JADHAV, J. ] Ajay