1 PIL No.1179 of 2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 1179 OF 2004 Akhil Bhartiya Bharshtachar Virodhi Samaj Punarnirman Samiti and another. ... Petitioners Versus State of Maharashtra and others. ... Respondents None for the petitioners. Mr. Satish Shah with Ms. Gauri Gandhi and Mr. Ashish Ghadre i/by M/s. Tamhane & Co. for respondent No.8. Ms. Geeta Shastri, Assistant Government Pleader for State-respondent Nos.1 and 2. Mr.C.S. Balsara i/by Mr. P.K. Shroff for respondent Nos.4 and 5. Ms. Monica Parikh for respondent Nos.7, 9 and 10. CORAM : MOHIT S. SHAH, C.J. & S.C. DHARMADHIKARI, J. DATED : 8TH JULY, 2010 P.C. This petition under Article 226 of the Constitution of India is in the nature of Public Interest Litigation. 2. The petitioners have prayed for various directions including the direction to the State Government to withdraw the exemption order dated 20th October, 1989 (Exhibit `L') which was granted in favour of respondent Nos.4 and 5 under section 20(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1976 ("ULC Act" for short) and also to direct the State Government to issue orders under the ULC Act in respect 2 PIL No.1179 of 2004 of the surplus vacant land in the holdings of respondent No.5, afresh. The petitioners have also prayed for other reliefs to be referred to hereinafter. 3. Respondent No.5 herein had filed statement under section 6(1) of the ULC Act, 1976 in respect of his holdings on 14th August, 1976. It is the petitioners' case that in the said return, he had declared the total area of his land survey No.163 as 6,39,000 sq. mts. i.e. about 157 acres (excluding 6 acres of land sold by Salsette Co-operative Society to Veera Jasta Nagpal). According to the petitioners, the total holding of respondent No.5 was only 131 acres and that the area of his holding was inflated to 163 acres and 6 gunthas. After the original holder filed a statement under section 6 of the ULC Act, he expired on 25th March, 1978 and thereafter, his heirs proceeded with the matter. It is stated that respondent No.5 made an application under section 20(1) of the Act for exemption which was granted by the State Government by order dated 20th October, 1989 subject to certain conditions which read as under: "1) The landholders shall surrender to the State Government an additional area of 14 acres of land, exclusive of D.P. Roads and D.P. reservations other than Public Housing at U.L.C. price, whereby the total land surrendered by them to Government for Public Housing shall come to exactly 57 acres; 3 PIL No.1179 of 2004 2) The residual surplus vacant land held by the landholders shall be used principally for construction of residential tenements with a plinth area of upto 50 and 80 sq.mtrs. in equal numbers and such other ancillary users as are permissible in accordance with the sanctioned Development Plan and the Development Control Rules in force at the relevant time. The landholders shall make full utilisation of the permissible Floor Space Index of the exempted land for the purposes permissible vide this exemption order. xxxxx xxxxx xxxxx 5) All lands under Development Plan reservations, except land designated as Public Housing, and D.P. Roads as well as reservations prescribed by the B.M.C. in the lay-out for various public amenities and also internal roads (in case these are to be transferred as per the B.M.C. requirements) shall be surrendered by the landholders to Govt. of Maharashtra/Bombay Municipal Corporation, without charging any monetary consideration, whenever called upon to do so by the State Govt., and in any case before the Occupation Certificate is obtained for the last building to be constructed on the exempted land. Internal roads shall be brought upto the standards laid down by the B.M.C. before they are transferred. The land holders shall be entitled to claim the entire benefit of FSI of D.P. roads and any other non-monetary benefit that Government may be pleased to approve for surrender of land affected by D.P. reservations. xxxxx xxxxx xxxxx 7) The landholders shall be required to surrender 10% of the residential tenements for allotment to persons nominated in this behalf by the State Govt. at prices to be fixed by the State Government. In case the landholders construct tenements of different sizes, the 4 PIL No.1179 of 2004 10% surrender shall be made proportionately from different size groups in order that the flats surrendered to Government represent exactly 10% of the F.S.I. utilised for residential purpose. 8) Re-sale of dwelling units shall be prohibited for a period of 5 years after the first transfer is made by the landholders in favour of the purchaser. xxxxx xxxxx xxxxx 10) The selling price of residential tenements constructed on the exempted land shall not exceed Rs.248/- per sq.ft. of plinth area (Rs.2.663 per sq.mtrs.). However, as provided in Government Resolution No.ULC-1088/2798/D-XIII dated 19.8.1988, the landholders would be at liberty to transfer dwelling units to members of one or more cooperative housing societies to be promoted by them/their nominees on such terms and conditions as may be mutually settled between them. xxxxx xxxxx xxxxx 12) The area required to be kept open according to the D.C. rules and the building regulations of the B.M.C., Town Planning Rules and other statutory regulations shall always be kept open . In case there is a change in such rules in future whereby additional construction becomes possible, the landholders may undertake construction strictly in accordance with such revised rules. 13) The landholders shall submit returns once in every six calender months to the Additional Collector and Competent Authority, U.L.C. Bombay, indicating the physical progress of construction on the exempted land. The first such return shall be furnished on 30th June, 1990. If at any time the State Government is satisfied that there is a breach of any of the conditions 5 PIL No.1179 of 2004 mentioned in this order, it shall be competent for the State Government to withdraw by an order the exemption granted in terms of this order. Provided that, before making any such order, the State Government shall give the landholders/their nominees a reasonable opportunity to represent against the proposed withdrawal. 14) When any such exemption is withdrawn or deemed to be withdrawn under these conditions, the provisions of Chapter-III of the ULC Act, 1976 shall apply to the land as if the land had not been exempted under this order." 4. According to the petitioners, though respondent No.5 had committed breach of several conditions of the said exemption, still the State Government has not taken any action in spite of breach of such conditions. 5. It appears that after issuance of the notice on this petition, the State Government issued a show-cause notice dated 5th October, 2006 calling upon respondent Nos.4 and 5 to show cause as to why necessary action as per the provisions of ULC Act, 1976 shall not be taken against them for violating the conditions of the exemption order. Specific reference was made to violation of Condition No.13 of exemption order that the landholder/developer shall submit half yearly returns indicating progress of the construction work and condition No.10 requiring the 6 PIL No.1179 of 2004 land holder or the developer to sell the tenements at the selling price fixed by the Government to the Government nominees. 6. The Competent Authority thereafter passed order dated 24th November, 2006 holding that the respondent Nos.4 and 5 had committed breach of condition No.10 and 13 of the aforesaid exemption order. The competent authority, however, specifically mentioned in the order as under: "However as per information submitted by land holder/developer it is seen that the 1.00 FSI of the exempted surplus vacant land is already utilized and most of the tenements are already sold out in open market and third party interest are already created therefore considering this facts, now it would not be proper at this stage to withdraw the said exemption order and acquire the exempted surplus vacant land as per section 10 of Urban Land (Ceiling & Regulations) Act, 1976. In the circumstances stated above the alternative is to charge some amount of penalty to the land holder/developer for violation of condition no.10 and 13 of the exemption order. Further in the Government guidelines for effective implementation of housing schemes there is no clear cut guide lines in respect of penalty for violations of terms and conditions of the exemption order. As the exemption order is issued by Government it would be proper to refer the matter to Government alongwith the consideration of request to issue a corrigendum to the exemption order as per Government guidelines in this respect as it is not a part of show cause notice." (emphasis supplied) 7 PIL No.1179 of 2004 The competent authority, accordingly, referred the matter to the State Government for determining the rate of penalty for violation of the conditions of exemption order but did not pass any order for acquiring exempted surplus vacant land as per section 10 of the ULC Act, 1976. 7. Respondent Nos.4 and 5 challenged the said order in Appeal No.48 of 2007 before the Additional Commissioner, Konkan Division. By order dated 9th July, 2007, the Additional Commissioner partly allowed the appeal and remanded the case back to the competent authority for enquiry and final decision on merit after specifically noting that the State Government in the Urban Development Department vide its decision dated 6th February, 2007 had held that where there is violation of the condition of exemption order, the competent authority shall impose penalty at the rate of Rs. 2.50 per sq.ft. and that the said amount be recovered from the developer. The Additional Commissioner further observed that as the scheme under section 20 on the exempted land is already completed, he did not find any reason to give any direction to the competent authority for fresh computation of surplus vacant land but left it open to the developer to approach the State 8 PIL No.1179 of 2004 Government through the competent authority for redressal of their grievances. 8. It is the case of the respondent Nos.4 and 5 that the penalty imposed by the competent authority in compliance of the Government directive at the rate of 2.50 per sq.ft. has already been paid by them to the competent authority. 9. The only question which now survives before us is whether the petitioners' prayer for direction to the respondent-authorities to withdraw the exemption order granted in October, 1989 can be considered at this stage. 10. Mr. Balsara, the learned counsel for respondent Nos.4 and 5 has invited our attention to the decision dated 16th April, 2009 of another Division Bench of this Court in Vithabai Bama Bhandari v. State of Maharashtra & another, 2009(4) All MR 51. It is submitted that in that case on 28th June 2007 the State Government had not only withdrawn the exemption order, but the Competent Authority had thereafter proceeded under section 10 of the Act but before possession could be 9 PIL No.1179 of 2004 taken over, the ULC Repeal Act, 1999 came into force in the State of Maharashtra with effect from 29th November, 2007. In view of the provisions of the Repeal Act, the Division Bench held that the proceedings pursuant to the order made by the State Government dated 28th June, 2007 withdrawing exemption under the ULC Act, and all further actions taken under section 10(3) shall stand abated and can no longer be proceeded further. The Division Bench further held that all further proceedings under the provisions of ULC Act, 1976 in relation to the land of the petitioner mentioned in declaration made under sub- section (3) of Section 10 of the ULC Act, 1976 had lapsed and those lands no longer vest in the State Government. Relying on the aforesaid decision, it is vehemently submitted that in the instant case, there was no order withdrawing the exemption. On the contrary, the competent authority had specifically declined to take any actions for withdrawal of exemption and had already passed an order imposing penalty which has already been paid by respondent Nos. 4 and 5 and that, therefore, the question of taking of any action under section 10 of ULC Act, 1976 cannot arise. Admittedly, possession of the land in question had remained with respondent Nos.4 and 5 on the date 10 PIL No.1179 of 2004 of coming into force of the Repeal Act i.e. 29th November, 2007. 11. None appears for the petitioners. It was also recorded in the court's order dated 5th May, 2010 that none had appeared for the petitioners on that date. It was also recorded in the said order that on the last occasion, the matter was adjourned on account of the leave note of the advocate. The matter was thereafter adjourned to 9th June, 2010 on which date also, the learned advocate for the petitioners had requested for adjournment. Today also, when the matter was called out, none appeared for the petitioners. Since this is public interest litigation, we did not dismiss the petition for default, but in view of the aforesaid judgment of another Division Bench of this Court, we have gone through the merits of the matter and we find that after coming into force the Repeal Act, no direction can be issued to the State Government for recalling the exemption which was granted as far back as on 20th October, 1989. 12. The learned AGP appearing for the State would, however, submit that the show-cause notice was already issued for taking necessary action under the ULC Act of 1976 on 5th October, 2006 before the 11 PIL No.1179 of 2004 Repeal Act came into force in the State on 29th November 2007 and, therefore, it cannot be said that the petition has become infructuous. 13. As already indicated above, the show-cause notice had been proceeded with further, and culminated into order dated 24th November 2006 only imposing penalty. No order was passed by any authority for withdrawing the exemption. Assuming that the exemption order had been withdrawn prior to the date of coming into force of the Repeal Act, even then admittedly the possession of the land in question had still remained with respondent Nos.4 and 5 and had not been taken over by the State Government prior to 25th November, 2007. Hence, there was no scope for any proceedings being continued under the ULC Act, 1976 after 29th November 2007, much less there can be any question of issuing any direction to the Government to commence any proceeding on or after 29th November, 2007. 14. There are other prayers made by the petitioners which pertain to the exact area of survey No.163. According to the petitioners, the original area was 131 acres and predecessor of respondent No.5 had wrongly indicated the area as 163 acres. It is further submitted that 43 12 PIL No.1179 of 2004 acres of land was surrendered to MHADA as per the condition of exemption order, and MHADA is required to give an account of what has been done with the said land. 15. The learned counsel for the respondent Nos.4 and 5 states that Mr. J.S. Pareira had already paid occupancy price in respect of 32 acres of land which is the subject matter of the controversy sought to be raised by the petitioners. 16. We do not propose to go into the controversy about area of survey No.163, because the learned AGP states that the State Government has already initiated proceedings for correcting the record of rights to show that the area of Survey No.163 was 131 acres, 28 gunthas and 13 anas and not 163 acres 6 gunthas and 10 anas as per the order of the Superintendent of Records, Mumbai passed on 13th July, 1979. We do not propose to go into this controversy as the matter is being examined by the State Government and disposal of this writ petition shall not preclude the authorities from deciding this controversy in accordance with law. 13 PIL No.1179 of 2004 17. As regards the prayer that respondent No.2 MHADA be directed to disclose the account of 43 acres of land surrendered to MHADA in compliance of one of the conditions of exemption order, the learned AGP has invited our attention to the relevant portion in para 4 of the affidavit-in-reply dated 23rd August, 2006 stating that respondent No.2 MHADA had taken over 43 acres of land of survey No.163 under possession receipt dated 12th November, 1980 (Exhibit 7 to the reply affidfavit dated 18th July, 2006) and that MHADA has developed 28 acres for constructing buildings for weaker section persons which is now named as Mahavir Nagar Co-operative Housing Society and that the remaining area admeasuring 17.94 acres has been encroached upon by the slum dwellers. 18. As regards the petitioners' prayer for directing the State Government to hold enquiry into the act of respondent Nos.4 to 6, in fraudulently compelling some of the Adivasi families to forgo their respective claims, the learned AGP has invited our attention to the averments made in the affidavit dated 18th July, 2006. Para 15 of the said affidavit reads as under:- 14 PIL No.1179 of 2004 "15. I say that Cabinet Sub-Committee approved the proposal with a Condition that the developer had to submit this undertaking that there is no third party interest created on 14 acres of land which is demanded by Developer. It was also approved and directed that developer should not develop the land admeasuring 2 Acres 28 Gunthas which was claimed by Shri Badlya Vilas till the dispute comes to an end and developer should not be allowed to use the FSI of the said land elsewhere in the Scheme. I say that as per the decision taken in the Cabinet Sub-Committee Meeting, the Government issued Corrigendum to Exemption Order dated 13.9.1996. I say accordingly corrigendum dated 13.9.1996 was issued and Condition No.1 was deleted partly but Condition No.7 was totally deleted. The action taken by Government is consistent with the Government Policy and the contention of the Petitioner in paragraph 16 and 17 of the Petition are denied." 19. In view of the above, we do not propose to continue this proceeding any further but we clarify that in case any of the Adivasi families in question have any grievance in respect of the above land, disposal of this petition shall not come in their way in agitating their grievance before the appropriate forum. 20. In compliance with the order dated 9th June, 2010, the CVK & Associates, Chartered Accountants have submitted report dated 22nd July, 2010 and have also submitted letter dated 30th June, 2010 raising their bill for a sum of Rs.2,20,600/- for the services rendered by them. 15 PIL No.1179 of 2004 The learned counsel for respondent Nos.4 and 5 states that without prejudice to their rights and contentions, respondent Nos.4 and 5 will pay the said amount of Rs.2,20,600/- in favour of CVK & Associates, Chartered Accountants by an account payee Pay Order within three weeks from today which Pay Order shall be handed over to the Registrar/Prothonotary & Senior Master, High Court, Original Side, Bombay. 21. The learned AGP has placed before us the report of the Executive Engineer, PWD indicating the result of the survey showing the cost of the building per square ft. built by respondent No.4 on the land in question being survey No.163. The learned AGP submits that the cost of the said survey quantified at about Rs.27 lakhs should also be borne by respondent No.4. In the facts and circumstances of the case, we are not inclined to grant the above request made by the learned AGP. We direct respondent No.4 to pay the State Government a sum of Rs.2,20,600/- within three weeks from today. This amount shall also be paid by Pay Order in favour of the State Government to be handed over to the Registrar/Prothonotary and Senior Master, High Court, Original Side, Bombay. 16 PIL No.1179 of 2004 22. As regards the letter dated 22nd June, 2010 received from the Additional Collector & C.A. , U.L.C., Greater Mumbai, it is clarified that disposal of this writ petition does not exonerate the respondent Nos.4 and 5 and their successors in interest from complying with the conditions of the exemption order., which have no relation to the ULC Act, 1976 already repealed, such as condition Nos.1, 5 and 12. 23. With the above directions and clarifications, the writ petition is dismissed. CHIEF JUSTICE S.C. DHARMADHIKARI, J.