The State Of Maharashtra And Ors. vs Mr. Aspi Chinoy

THE STATE OF MAHARASHTRA AND OTHERS ...APPELLANT(S)

VERSUS MR. ASPI CHINOY AND ANOTHER ...RESPONDENT(S)

WITH

CIVIL APPEAL NOS. OF 2022 (Arising out of SLP(C) Nos. 26906-26911 of 2011)

JUDGMENT

B.R. GAVAI, J.

1. Delay condoned and leave granted in SLP(C) Nos.

26906-26911 of 2011.

2. By way of the present appeals, the State has assailed

the judgment and order dated 29th September 2009 passed

by the Division Bench of the High Court of Judicature at

Bombay in Writ Petition No. 713 of 2001, thereby allowing

the writ petition filed by the respondents.

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3. The respondents-original writ petitioners had filed

the writ petition challenging the letter dated 27th June 2000

addressed by the Collector to the Sub-Registrar, Bombay

City, Old Custom House. By the said letter, the Collector

had directed the Sub-Registrar not to register any

transaction in respect of transfer of flats in the buildings

situated in B.B.R. Block Nos. 3 and 5, Nariman Point and

Cuffe Parade, Bombay without obtaining a No Objection

Certificate from the Collector.

4. In the year 1971, the State Government had invited

offers for the lease of Plot Nos.93, 94, 99, 100 and 121 from

Block V Back Bay Reclamation Estate. In response to the

said notice, one M/s. Aesthetic Builders Pvt. Ltd. (hereinafter

referred to as the “said builder”) had made a bid for Plot No.

121 (Old) or 119 (New). The bid was on the basis that the

said builder would construct and sell flats on ownership

basis. The purchasers of the flats would thereafter form a

Co-operative Society, in which Society the rights of the

Company would be transferred. The bid of the said builder

was accepted and the State Government granted a licence to

the said builder to enter upon the plot and construct a

2 building in accordance with the plans and specifications

sanctioned by the Municipal Corporation of Greater Bombay.

5. On the said plot, a twenty-two storey building

namely Jolly Maker Apartments No.3 was constructed by the

Company and the flats were sold to various parties on

ownership basis. Occupation certificate in respect of the said

building was issued on 12th December 1975. The subject

matter of the present dispute is Plot No. 211, which was sold

to one Mr. A. Madhavan by an agreement dated 22nd

November 1972. After completion of the building in the year

1977, the purchasers of the flats formed a Co-operative

Society called Varuna Premises Co-operative Society Ltd.,

which was duly registered under the Maharashtra Co-

operative Societies Act, 1960. By an agreement dated 23rd

May 1978, the said Mr. A. Madhavan sold his rights in the

said flat to one Mrs. Reshmidevi Agarwal. On 16th December

2000, respondent No.1 entered into an agreement with Mrs.

Reshmidevi Agarwal to purchase rights to occupy Flat No.

211 as also five shares in the Society. When respondent

No.1 approached the Sub-Registrar Office for registration, he

was declined the registration and directed to secure a No

3 Objection Certificate from the Collector. In the above

backdrop, respondents approached the High Court by way of

the writ petition.

6. The claim of the respondents was resisted by the

State. It was the contention of the State that in view of

Government Resolution dated 12th May 1983 (for short “1983

Resolution”) and Government Resolution dated 9th July 1999

(for short “1999 Resolution”), the State was entitled to claim

premium as a condition for grant of permission for transfer of

the flats. The State had pressed into service Clauses 15 and

16 of the Memo of Terms and Conditions for the Lease of Plot

from Block V Back Bay Reclamation (hereinafter referred to

as the “said terms and conditions”). The High Court did not

find favour with the contentions raised by the State and

allowed the writ petition. Being aggrieved thereby, the State

has approached this Court by way of the present appeal.

7. We have heard Shri Shekhar Naphade, learned

Senior Counsel appearing on behalf of the State and Shri

C.U. Singh, learned Senior Counsel appearing on behalf of

the respondents-writ petitioners.

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8. Shri Naphade submitted that the impugned

judgment and order of the High Court is not sustainable on

several grounds. The learned Senior Counsel submitted that,

the High Court has grossly erred in coming to a conclusion

that the Society concerned would fall under Class 5 as

earmarked in Rule 10 (1) of the Maharashtra Land Revenue

(Disposal of Government Lands) Rules, 1971 (hereinafter

referred to as the “said Rules”). He further submitted that

the High Court has failed to notice Class 9 under which the

Society in question would actually fall. He further contended

that the High Court has also erred in going into the question

as to whether the allotment of land was on a concessional

rate or not. He submitted that the said fact is not at all

relevant for determining the issue. He further submitted that

the High Court has erred in relying on the 1983 Resolution.

He submitted that the 1983 Resolution was superseded by

the 1999 Resolution and is applied with full vigour. The

learned Senior Counsel urged that, though the land was

allotted in the year 1972, the same was subject to the

execution of Agreement to Lease. He further urged that the

said builder has subsequently agreed, vide communication

5 dated 5th July 1972, to abide by all the terms and conditions

of the lease. He submitted that this fact has not been taken

into consideration by the High Court.

9. Shri Naphade submitted that Section 40 of the

Maharashtra Land Revenue Code, 1966 (hereinafter referred

to as the “Code”) empowers the State Government to dispose

of any land on such terms and conditions as it deems fit. He

submitted that, since the 1999 Resolution specifically

provides the terms and conditions on which the land could

be disposed of, the judgment of the High Court which failed

to take into consideration the said aspect, is not sustainable.

He further contended that the High Court has erred in

relying on the judgment of this Court in the case of Anita

Enterprises and Another v. Belfer Cooperative Housing

Society Ltd. and Others1 which is not at all applicable to

the present case. He further submitted that the High Court

has erred in relying on the Bye-laws of the Society. He

submitted that in a conflict between the Bye-Laws of the

Society and the said Rules, the Rules will prevail.

1 (2008) 1 SCC 285 6

10. Shri Singh submitted that the High Court has

considered all the relevant aspects and as such, no

interference is warranted with the well-reasoned judgment

and order of the High Court.

11. The undisputed facts in the present case are as

under:

The allotment of plot in question was made to the

said builder in the year 1972. As per the said allotment, the

plot was to be leased for a period of 99 years, renewable for

another 99 years on the same terms, but on a revised ground

rent. The said terms and conditions would reveal that, the

licensee was required to construct a building on the said plot

costing not less than Rs.10 lakhs. The use of the building

was for private residence only. As per Clause 13 of the said

terms and conditions, the licensee was to be put in

possession of the plot on his executing the Agreement to

Lease. Undisputedly, after the said allotment in the year

1972, the builder was put in possession of the plot and he

constructed a building thereon. The flats were sold to various

parties. An occupation certificate in respect of the said

building was also issued on 12th December 1975. In the year

7 1977, the flat purchasers formed a Co-operative Society

called Varuna Premises Co-operative Society Ltd.

12. It could thus be seen that after the land was allotted

to the said builder on lease basis in the year 1972, the 1983

Resolution came into effect. The 1983 Resolution provided

for grant of land to co-operative societies of different

categories on concessional rates. After the 1983 Resolution,

the Government noticing that, with the passage of time and

the policy being nearly 15-16 years old, it was necessary to

modify and revise the said policy. It will be relevant to refer to

the Preamble of the 1999 Resolution:

“Government Lands are sanctioned in favour Co-operatives Housing Societies under the provisions of Section 40 of the Maharashtra Land Revenue Code 1966 and the Maharashtra Land Revenue (Allotment of Government's Land) Rules 1971. From time to time the Government has laid down policies supplementary to the said provisions by the Government orders mentioned above. Some of the terms and conditions of those orders have become out dated and it has become inevitable to make modifications/amendments therein. As the present policy is nearly 15-16 years old, a proposal to modify/revise the same was under consideration of the Government. In that behalf the Government has now decided that in suppression of the above mentioned orders, the revised policy as under should be adopted in respect of sanctioning lands to Co-

8 operative Housing Societies in Maharashtra State.”

13. It could thus be seen that the 1999 Resolution is in

continuation of the 1983 Resolution, which is applicable to

the co-operative societies to whom the government lands are

sanctioned on concessional rates.

14. It is further to be noted that though Section 40 of

the Code saves the power of the Government with respect to

disposal of lands, Section 295 of the Code specifically deals

with disposal of lands and foreshore. It is not in dispute that

the land in question is a reclaimed land and therefore, is

covered under Section 295 of the Code. It is also not in

dispute that though in accordance with 1983 Resolution and

1999 Resolution, the State Government is empowered to allot

land to the co-operative societies of different categories on

concessional rates, the land in question has been allotted to

the builder who had participated in the bid in response to a

public notice. The land was allotted to the said builder after

he was successful in the bidding process. As per the said

terms and conditions, which specifically deal with lease of

plots from Block V Back Bay Reclamation, the said builder

9 was required to construct the building on the said land

costing not less than Rs.10 lakhs and to sell the same for the

purpose of private residence. It is after the said builder sold

the flats to the individual buyers, they formed a Co-operative

Society in the year 1977 in which Society the ownership of

the land came to be transferred by the said builder. It could

thus be seen that, the present case is not a case where the

land is allotted to a Co-operative Society by the Government.

The land was leased out to the builder, who was the

successful bidder and after the ownership of flats was

transferred to the private individuals, a Society of the flat

owners was formed.

15. In that view of the matter, in the peculiar facts and

circumstances of the case, we do not find it necessary to

consider the submissions advanced by Shri Naphade. As

already discussed hereinabove, we find that in the facts of

the present case, since the land was not allotted to a society

but to a builder on lease, who has constructed flats for

private individuals, who have subsequently formed a Co-

operative Society, the 1983 Resolution and 1999 Resolution

would not be applicable to the members of such a society.

10 We are therefore not inclined to interfere in the present

appeals.

16. In the result, the appeals are dismissed. The interim

stay of the direction for refund of the amount granted by this

Court shall stand vacated.

17. Pending application(s), if any, shall stand disposed of

in the above terms. No order as to costs.

…..….......................J. [B.R. GAVAI]

….….......................J. [B.V. NAGARATHNA] NEW DELHI;

SEPTEMBER 30, 2022.

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