Nargis Jal Haradhvala vs State Of Maharashtra & Ors

2. The factual matrix of the case is that the appellant applied for an exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short, 'the Act') in respect of land bearing CTS No.1310 of village Versova in Andheri Taluka of Mumbai Suburban District, measuring 5892.5 sq.mt. (in short, "suit property"), out of which exemption in respect of 3491.5 sq.mt. was granted by Respondent No.1 in August, 1987. The balance 2401 sq.mt. did not need exemption being reserved for road and garden and was duly handed over to the Municipal Corporation by the appellant. 500 sq.mt. was "retainable land" that the landowner is entitled to retain. Exemption order tentatively specified 30% of the permissible floor space of the exempted land to be sold to Government Nominees. It was clarified that the percentage will be prescribed by the Government as per the extent of the land to be exempted.

6. By letter dated 18.10.2005, Respondent no.3 informed appellant that since the appellant has failed to surrender in all 1109.31 sq.mt. built up area to the Government in the form of 28 flats from the subject scheme, a criminal case is being filed against the appellant with the Versova Police Station. An appeal preferred by the appellant against this was dismissed by Respondent No.2 by its order dated 25.7.2006, stating inter alia that the Competent Authority is very much in his powers to hear and act on matters regarding Section 20 and is in no way exercising any authority outside his jurisdiction or outside the letter and spirit of the Act.

7. Thereafter, the appellant, challenged the order passed by the respondents by way of writ petition in the Bombay High Court. The Division Bench of the High Court rejected the appellant's writ petition holding that the present case is not covered by the decision in Shantistar Builders (supra) as the same does not have retrospective effect and that the document dated 18.10.2005 was not an order but a letter/intimation by the competent authority to the appellant that the conditions of the exemption order were not complied with. Hence, this appeal by special leave under Article 136 of the Constitution of India is preferred by the appellant raising issue what percentage (5%, 10% or higher) of area in any scheme is to be surrendered under the Urban Land (Ceiling and Regulation) Act, 1976.

13. We, therefore, allow this appeal and set aside the order passed by the High Court. Consequently, we modify the order dated 25th July, 2006, passed by the Additional Commissioner, Konkan Division, Mumbai and direct the appellant to sell eleven more flats to the allottees, who shall be nominated by the Government. Taking note of the fact that seven flats so surrendered by the appellant have been sold to the Government nominee in gross violation of the Act and the Scheme framed by the Government, we do not wish to issue any direction in this matter. However, we make it clear that the remaining eleven flats that shall be handed over by the appellant to the Government shall be sold to the Government nominees, who must belong to the weaker section of the society. We also direct the appellant to hand over and sell remaining eleven flats to the Government within four months from today.