Case: S.V.ASGAONKAR  Vs. MUMBAI METROPOLITAN REGN.DEVT.AUTH

1999 as was approved by the Authority for the allotment of land to the MMRDA ClassIV Employees Cooperative Housing Society at Panchpakhadi. We are in a readiness to make the necessary payment for taking the possession of the land of 13,700 sq.mtr. area on the terms prescribed in the above referred Government of Maharashtra Resolution. Thanking you, Yours faithfully, (A.V. Ghangurde) Chairman. 16. In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997. 17. Learned counsel for the appellants relying on Resolution dated 01.09.2003 submits that the Resolution dated 01.09.2003 clearly mentions that it modifies condition No.3 contained in earlier Resolution dated 07.06.1997 which clearly means that Resolution dated 01.09.2003 is in continuation of earlier Resolution, hence, the eligibility of the members have to be seen on 07.06.1997 or 05.11.1998. He relies on the following portion of Resolution dated 01.09.2003: "RESOLVED THAT, in exercise of power conferred under SubSection 2 of Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974 and making modification in Condition No.c contained in its resolution dated 727 passed in the 88 th meeting held on 7.6.1997 and as proposed in paragraph 6 of the item note, the authority allots the land situated at Chitalhar, Manpada, Thane to the MMRDA employees cooperative housing society on the following terms and conditions. 18. It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above. 19. The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants. 20. The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time. 21. Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned. 22. There is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003. After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. The letter dated 05.11.1998 refers to Disposal of Land Regulations. At this juncture, we may notice the above Regulations which were amended on 29.04.1997. The amended Regulation, 1997 has been brought on the record by the appellants themselves through rejoinderaffidavit. In the Amendment Regulation Clause (iA) has been added which is to the following effect: "(iA) If half of the premium shall not be paid within one month or in case of Government within two months, if permitted by the Metropolitan Commissioner, the Agreement concluded with the Authority shall stand determined and the Earnest Money deposited by Intending Lessee along with its tender or offer shall stand forfeited to the Authority without prejudice to the rights and powers of Authority to recover compensation for loss or damage, if any suffered in consequence of such breach of the Intending Lessee to so pay half of the premium to the Authority. Likewise, if the balance premium shall not be paid within twelve months as provided hereto before, the Agreement concluded with the Authority shall stand determined and the Earnest Money paid by him along with its tender or offer together with 25 per cent of the premium shall be forfeited to the Authority without prejudice to the right and powers of the Authority to recover compensation for loss or damage, if any, suffered in consequence of such default of the Intending Lessee.In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997.It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above.The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants.The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time.Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned.e is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003.After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr.