NARGIS JAL HARADHVALAversusSTATE OF MAHARASHTRA AND OTHERS

                         (2015] 1 S.C.R. 8


A                  NARGIS JAL HARADHVALA
                                 V.
           STATE OF MAHARASHTRA AND OTHERS
                (Civil Appeal No.5989 of 2007)
                        JANUARY 06, 2015
B
      [M.Y. EQBAL AND ABHAY MANOHAR SAPRE, JJ.]

       Urban Land (Ceiling and Regulation) Act, 1976 - s. 20
  - Application under, seeking exemption - Exemption order
C tentatively specified 30% of the permissible floor space of the
  exempted land to be sold to Government Nominees -
  Clarification that the percentage would be prescribed by the
  Government as per the extent of the land to be exempted -
  Issuance of corrigendum by the Government that the
o appellant-land owner to surrender to the Government
  nominees 20% of the floor space of the first 2000sq.mt. of the
  net permissible FSI of the land exempted and 30% of the
  balance sq.mt. permissible - Appellant's case that only 5%
  area-flats could be claimed in view of the judgment by this
E Court - Respondent No. 3 asking the appellant to surrender
  805.58 sq.mt. of area in addition to 303.73 sq.mt. already
  surrendered by her - Writ petition by appellant, set aside by
  High Court - On appeal, held: Appellant bound to surrender
  to the Government a total 20% of the permissible floor space
F in the light of the corrigendum - Calculating 20% of the floor
  space, appellant to sell 11 more flats to the persons that may
  be nominated by the Government.

        Allowing the appeal, the Court

G       HELD: Exemption under Section 20 of the Urban
    Land (Ceiling and Regulation) Act, 1976 was granted on
    17.8.1987 with the condition to surrender 30% of the
    permissible floor space to the allottees nominated by the
    Government. It was clarified that the percentage would be
H                                8
      NARGIS JAL HARADHVALA v. STATE OF                     9
                MAHARASHTRA

prescribed by the Government as per the extent of the           A
land to be exempted. Subsequent corrigendum was
issued by, the Government on 23.11.1990 wherein the
extent of 30% was agreed as 20% of the floor space of
the first 2,000 sq.mt. of the net permissible FSI of the land
exempted under the order and 30% of the 2364.37 sq. mt.         B
balance permissible area. However, there is no
authenticity in the copy of the circular dated 22.10.1992
produced by the appellant that the 20% quota fixed by
the corrigendum was further reduced to 10% of the floor
space. Further, admittedly, the appellant executed an           c
indemnity bond on 12.10.1998 wherein it was agreed that
the balance built up area would be surrendered to the
Government within a period of five years i.e. up to 2003.
The appellant is bound to surrender to the Government
a total 20% of the permissible floor space in the light of
                                                                0
the corrigendum dated 23.11.1990 issued by the
Government. Till date, the appellant has given only seven
flats to the allottees nominated by the Government.
Calculating 20% of the floor space, the appellant is
directed to sell 11 more flats to the persons that may be
                                                                E
nominated by the Government. The order passed by the
High Court is set aside. [Para 11, 12] [14-C-H; 15-A, B]

     Shantistar Builders vs. N.K. Toitame (1990) 1 SCC 520
- referred to.
                                                                F
                  Case Law Reference :
    (1990) 1 sec 520         Referred to           Para 3

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5989 of 2007                                                    G
     From the Judgment and Order dated 16.08.2007 of the
High Court of Judicature at Bombay in Writ Petition No. 1394
of 2007.

     C. A. Sundaram, Gopal Jain, Abhishek Roy, Devina           H
    10       SUPREME COURT REPORTS . (2015] 1 S.C.R.


A   Sehgal, Khushboo Bari, Nandini Gore, Manik Karanjawala for
    the Appellant.

        Rahul Chitnis, Aniruddha P. Mayee, Charudatta
    Mahindrakar, A. Selvin Raja for the Respondents.
B        The Judgment of the Court was delivered by

         M.Y. EQBAL, J. 1. This appeal by special leave is
    directed against judgment and order dated 16.8.2007 of the
    High Court of Judicature at Bombay whereby Division Bench
c   of the High Court dismissed the writ petition preferred by the
    appellant challenging orders issued by the respondents.

        2. The factual matrix of the oase 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
D 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
E reseNed 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
F Nominees. It was clarified that the percentage will be
  prescribed by the Government as per the extent of the land to
  be exempted.

       3. On 31.1.1990, this Court in the case of Shantistar
G Builders vs. N.K. Toitame, (1990) 1 SCC 520, dealing with the
  issue of constructions over exempted lands covered under
  Section 20 of the Act laid down that the number of the
  government nominees should not exceed 5% of the total
  accommodation available in any scheme. The case of the
  appellant is that after the aforesaid decision, on 23.11.1990,
H
      NARGIS JAL HARADHVALA v. STATE OF                        11
         MAHARASHTRA [M.Y. ,EQBAL, J.]
by a subsequent corrigendum, Respondent No.1 amended the             A
area to be surrendered to the Government nominees and finally
prescribed it as 20% of the floor space of the first 2000 sq.mt.
of the net permissible F.S.I. of the land exempted and 30% of
the balance sq.mt. permissible.
                            ,
                                                                     B
      4. The appellant's further case is that being unaware of
aforesaid decision of this Court, appellant initially offered 26
flats (1036.39 sq.mt.) by her letters and subsequent reminders
in the years 1990 and 1991, but the respondents neither took
up the flats offered nor did they respond in any way to
appellant's letters. However, respondents moved an application       c
for modification of the judgment in the case of Shantistar
Builders (supra) and maintained the quota of flats for
Government nominees at 10% by its Resolution dated
22.10.1992. Accordingly, appellant requested the respondents
to take over 10% of the net permissible area of the exempted         D
land viz. 296.73 sq.mt and offered 7 flats (having area of 303.73
sq.mt.), in reply to which, respondents acknowledged that only
 10% of the area needed to be surrendered for the Government
nominees but claimed that this 10% worked out to be 414.92
sq.mt. and not 296.73 sq.mt. However, in May, 1993,                  E
respondents took up only 4 of the 7 flats offered by the
appellant, whose area was 5.86% of the net permissible FSI
of the exempted land. Upon being asked by the appellant for
the issuance of the certificate to the effect that required number
of flats have been surrendered to the Government, Respondent         F
 no.3 asked the appellant to hand over 21 flats in addition to
the 7 flats already offered. On this, appellant pointed out that
 only 5% flats could be claimed in view of Apex Court's judgment
in Shantistar Builders (supra) and the same had already been
 handed over. On 17.11.1995, this Court rejected the                 G
Government request to allow 10% quota for Government
 nominees and restricted the quota to 5% only.

      q. The appellant, therefore, reiterated in her subsequent
letters to the respondent that only 5% flats could be claimed in
                                                                     H
    12       SUPREME COURT REPORTS                [2015) 1 S.C.R.


A view of aforesaid judgment of the Apex Court, and on
  30.9.1998, three more flats were handed over to secure the
  Occupation Certificates that were being withheld by the
  respondents. It is the case of the, appellant that several
  representations were made to the Government to limit the area
B to be surrendered to the Government as per aforesaid
  judgment of the Apex Court, but her requests were rejected and
  Respondent No.3, vide letters dated 18.6.2002 and 23. 7.2004,
  asked the appellant to surrender 805.58 sq.mt. of area in
  addition to·303.73 sq.mt. already surrendered by her. The
c appellant was also served with notices dated 16.10.2004 and
  3.1.2005, in reply to which, appellant pointed out jurisdiction of
   Respondent No.3 and the fact about the wrong calculation of
  area to be handed over to Government nominees.

        6. By letter dated 18.10.2005, Respondent no.3 informed
D 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 fiats 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
E 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.
F
       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
G 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
H by special leave under Article 136 of the Constitution of India
      NARGIS JAL HARADHVALA v. STATE OF                        13
         MAHARASHTRA [M.Y. EQBAL, J.]
is preferred by the appellant raising issue what percentage          A
(5%, 10% or higher) of area in any scheme is to be
surrendered under the Urban Land (Ceiling and Regulation)
Act, 1976.

     8. Mr. C.A. Sundaram, learned senior counsel appearing
                                                                     8
for the appellant in course of argument fairly submitted that
since the decision rendered by this Court in Shantistar
Builders's case was prospective in its operation, the same will
not apply in the facts of the present case. However, admittedly,
the respondents issued a corrigendum dated 23.11.1990
amending the area to be surrendered to the Government                C
nominee and finally prescribed it as 20% of the floor space of
the first 2000 sq.mt. of the net permissible FSI of the land
exempted. Learned counsel submitted that by another circular
dated 22.10.1992 issued under the signature of Joint Secretary
to the Government, the quota for the Government nominee was          D
reduced from 20% to 10%. According to the learned counsel
the appellant already handed over 10% of the total
accommodation. Mr. Sundaram then submitted that at the initial
stage after completion of construction 30% of the permissible
floor space was offered for sale to the Government nominee,          E
but it was neither acknowledged nor accepted by the
Government, hence the respondent is stopped from claiming
the same on the principle of waiver. Learned counsel drawn our
attention to the relevant document and submitted that the flats
which were surrendered by the appellant have been sold by the        F
respondent to VIPs and not to the weaker section of the society.
Learned counsel lastly contended that on the basis of
subsequent corrigendum dated 23.11.1990 read with the
circular dated 22.10.1992 the appellant is not liable to surrender
more than 10% of the quota as fixed in the circular.                 G
     9. Per contra, Mr. Rahul Chitnis, learned counsel appearing
for the State, submitted that in support of the above referred
corrigendum and the circular, the appellant executed indemnity
bond on 12.10.1998 and agreed to give 30% of              . the      H
    14       SUPREME COURT REPORTS                (2015) 1 S.C.R.


A   permissible floor space to the Government nominee. The
    appellant further agreed to surrender the remaining tenements
    within five years from the date of execution of indemnity bond.
    Learned counsel submitted that as against 30% (28 flats) and
    20% (18 flats), the appellant has given only seven flats to the
8   respondent till date.

         10. We have considered the entire facts of the case and
    the argument advanced by the learned counsel appearing for
    the parties.

C      11. Indisputably exemption under Section 20 of the Act was
  granted on 17.8.1987 with the condition to surrender 30% of
  the permissible floor space to the allottees nominated by the
  Government. It was clarified that the percentage will be
  prescribed by the Government as per the extent of the land to
o be exempted. It is also not in dispute that subsequent
  corrigendum was issued by the Government on 23.11.1990
  wherein the extent of 30% was agreed as 20% of the floor
  space of the first 2,000 sq.mt. of the net permissible FSI of the
  land exempted under the order and 30% of the 2364.37 sq. mt.
E balance permissible area. However, we do not find any
  authenticity in the circular dated 22.10.1992, copy of which has
  been produced before us in support of the contentions made
  by the appellant that the 20% quota fixed by the corrigendum
  was further reduced to 10% of the floor space. Further,
F admittedly, the appellant executed an indemnity bond on
  12.10.1998 wherein it was agreed that the balance built up area
  would be surrendered to the Government within a period of five
  years i.e. up to 2003.

       12. In the background of all these facts, in our considered
G opinion, the appellant is bound to surrender to the Government
  a total 20% of the permissible floor space in the light of the
  corrigendum dated 23.11.1990 issued by the Government. As
  noticed above, till date, the appellant has given only seven flats
  to the allottees nominated by the Government. Calculating 20%
H
       NARGIS JAL HARADHVALA v. STATE OF                       15
          MAHARASHTRA [M .Y. EQBAL, J .]
of the floor space, the appellant is bound to sell 11 more flats     A
to the persons that may be nominated by the Government.

     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
                                                                     B
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             C
any direction in this matter. However, we make ft 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 weaiser section of the society. We also
direct the appellant to hanctOver and sell remaining eleven flats    D
to the Government within four months from today.

Nidhi Jain                                          Appeal allowed