SHRIDHAR C. SHETTY (DECEASED) THR. LRS.versusTHE ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY AND ORS.

1002                      [2020]REPORTS
                SUPREME COURT   6 S.C.R. 1002                [2020] 6 S.C.R.


 A            SHRIDHAR C. SHETTY (DECEASED) THR. LRS.
                                         v.
            THE ADDITIONAL COLLECTOR AND COMPETENT
                       AUTHORITY AND ORS.
 B                        (Civil Appeal No. 2019 of 2010)
                              SEPTEMBER 02, 2020
                 [R. F. NARIMAN AND NAVIN SINHA, JJ.]
             Urban Land (Ceiling and Regulation) Act, 1976:
 C            ss. 2(d), 20, 21 and 38(4) – Failure of landowner to handover
       seven tenements to Government nominees as required under the
       conditions of exemption granted u/ss. 20 and 21 – Demand of market
       value of seven tenements plus interest, penalty and recovery expenses
       as arrears of land revenue – Demand affirmed by appellate authority
       as well as High Court – Appeal to Supreme Court – Held: There has
 D
       been breach by the land-owner in terms of the exemption – The
       Authority also did not take any action to withdraw the exemption in
       view of the breach – The tenements, since have been sold, no
       direction can be issued to hand-over seven more tenements from the
       construction – The demand for the market value of the seven
 E     tenements, fall outside the purview of the Act, and hence cannot be
       construed as money due to the Government so as to vest in it the
       nature of arrears of land revenue recoverable u/s. 265 of
       Maharashtra Land Revenue Code, 1966 – The competent Authority
       being the creature of statute u/s. 2(d) cannot act beyond its statutory
       jurisdiction and shall remain circumscribed by the provisions of the
 F
       Act – The demand being de hors the provisions of the Act and being
       beyond statutory powers of the Competent Authority is Arbitrary
       and hence unsustainable.
             Allowing the appeal, the Court
 G            HELD: 1.1 Sections 20 and 21 of the Urban Land (Ceiling
       and Regulation) Act, 1976 contain provisions that if the
       Government or the competent authority, as the case may be is
       satisfied that any of the conditions subject to which exemption
       was granted, is not complied with, it shall be competent for it to
       withdraw the order of exemption or to declare such land to be
 H
                                        1002
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR            1003
                 AND COMPETENT AUTHORITY


excess land under Section 21 of the Act with its attendant              A
consequences as provided under the Act. [Para 9][1009-F-G]
      S. Vasudeva v. State of Karnataka and Ors. (1993) 3
      SCC 467 : [1993] 2 SCR 715 – relied on.
      1.2 In the nature of the composite exemption granted, the
failure of the authorities to cancel or withdraw the exemption for      B
breach by transfer of development rights to respondent Nos. 2
to 4 or construction on one plot only and the consequent claim
based on the “No Objection Certificate” dated 08.06.1993 issued
for purposes of a water connection, is of no avail to the appellant
as the certificate expressly recites that so far only seven             C
tenements had been handed over meaning thereby that the further
seven tenements remained to be handed over. The certificate
was therefore conditional in nature and not absolute. [Para
13][1012-E-F]
      1.3 Subsequent to the grant of exemption, the appellant           D
entered into a development agreement with respondent Nos. 2
to 4 as early as on 29.08.1988 describing himself as the owner
and also handed over the title deeds of the property. But the
appellant informed the authorities of this fact very belatedly on
15.04.2005. The building plan was approved in the name of the
appellant on 19.10.1988. The permission to commence                     E
construction was issued in his name on 28.02.1989. He alone
had applied for extension of the scheme leading to issuance of
the corrigendum dated 29.12.1988. The appellate authority in
his order dated 12.07.2006 has adequately noticed that it was the
appellant who was the de facto owner of the plot, had submitted         F
the application for exemption, given an undertaking on stamped
paper dated 16.05.2005 to fulfil the conditions of the exemption
by providing the additional seven tenements or market value in
respect thereof. The question of any estoppel, therefore, does
not arise. Therefore, any dispute between the appellant and
respondents Nos. 2 to 4 under the development agreement                 G
between them falls in the realm of a private dispute and does not
detract from the exclusive liability of the appellant under the order
of exemption. [Para 14][1012-H; 1013-A-C]

                                                                        H
1004            SUPREME COURT REPORTS                      [2020] 6 S.C.R.


 A           1.4 There is thus no dispute with regard to the fact that
       there had been a breach by the appellant in terms of the
       exemption. The authority under the Act also did not take any
       steps to withdraw the exemption because of such breach. The
       tenements have been constructed and sold. No directions
       therefore can be issued to hand over seven more tenements from
 B
       the constructions so raised. [Para 16][1013-E-F]
             2. The question whether the competent authority under the
       Act possesses the power to recover the market value of seven
       tenements for failure to hand over possession in terms of the
       order of exemption, being a pure question of law, the facts being
 C     undisputed, there is no reason not to allow the appellant to raise
       the same before this Court for the first time. The competent
       authority under the Act could have certainly withdrawn the
       exemption in the event of breach along with all its attended
       consequences. Failure to do so did not deprive the statutory
 D     authority of its powers to proceed appropriately under the Act.
       But the competent authority being a creature of the statute under
       Section 2(d) of the Act, cannot act beyond its statutory jurisdiction
       and the exercise of its powers shall remain circumscribed by the
       provisions of the Act. The undertaking dated 16.05.2005 by the
       appellant, to pay the price of the same in the event of the failure
 E     to do so cannot expand the statutory powers of the competent
       authority under the provisions of Sections 20 and 21 of the Act.
       The demand for the market value of the remaining seven
       tenements, falling outside the purview of the Act, cannot be
       construed as money due to the Government so as to vest in it
 F     the nature of arrears of land revenue recoverable under Section
       265 of the Maharashtra Land Revenue Code, 1966. Therefore,
       the impugned demand is dehors the provisions of the Act and
       unsustainable being beyond the statutory powers of the competent
       authority and thus arbitrary. [Paras 16 and 17][1013-F-H; 1014-
       A-D]
 G
             M/s Shantistar Builders v. Narayan Khimalal Totame
             and Others (1990) 1 SCC 520 – held inapplicable.
             Naraindas Indurkhya v. The State of Madhya Pradesh
             and Others (1974) 4 SCC 788 : [1974] 3 SCR 624;
 H
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR               1005
                 AND COMPETENT AUTHORITY


        Karmarahi Kanji Chandan v. The State of Maharashtra                A
        and Ors. Writ Petition No. 2629 of 1992 dated
        03.12.1992; Nargis Jal Haradhvala v. State of
        Maharashtra and Ors., (2015) 4 SCC 259 : [2015] 1
        SCR 8 – referred to.
                         Case Law Reference                                B
[1974] 3 SCR 624                 referred to              Para 3
(1990) 1 SCC 520                 held inapplicable        Para 4
[2015] 1 SCR 8                   referred to              Para 8
[1993] 2 SCR 715                 relied on                Para 10          C
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.2019 of
2010.
      From the final Order dated 21.06.2007 of the High Court of
Judicature at Bombay in Writ Petition No.2542 of 2006.
                                                                           D
      Amar Dave, Mahesh Agarwal, Ankur Saigal, Gaurav Goel, Yatin
R. Shah, Anirudh Bhatia, E.C. Agrawala, Advs. for the Appellant.
        Sachin Patil, Adv. for the Respondents.
        The Judgment of the Court was delivered by
                                                                           E
        NAVIN SINHA, J.
      1. The appellant is aggrieved by the order of the High Court
affirming the demand dated 15.10.2005 by respondent No.1 for
Rs. 51,97,196/- plus interest, penalty and recovery expenses as arrears
of land revenue. The demand was raised consequent to the failure of        F
the appellant to handover seven tenements to government nominees as
required under the conditions of exemption granted under Sections 20
and 21 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter
referred to as the Act”) (since repealed in 1999). The Additional
Commissioner, Konkan Division, Mumbai as the appellate authority
affirmed the same by his order dated 12.07.2006.                           G
       2. Shri Amar Dave, learned counsel for the appellant submitted
that exemption was granted under Section 20 of the Act on 02.03.1988
for raising construction over two plots being CTS No. 261 and CTS No.
245. In lieu thereof the appellant was required to surrender 20 per cent
of the constructed area to government nominees. The competent authority    H
1006             SUPREME COURT REPORTS                             [2020] 6 S.C.R.


 A     despite being aware that construction had been raised on only one plot,
       never withdrew the exemption. On the contrary, it consciously issued a
       “No Objection Certificate” acknowledging that seven tenements had
       been handed over. It was next submitted that if there had been any
       breach of the conditions of exemption, the Act empowered the authorities
       to withdraw the exemption with all its attendant consequences. Our
 B
       attention was invited to provisions of Sections 20 and 21 of the Act.
              3. It was next submitted that respondent no.1 did not have any
       statutory authority under the Act to levy the impugned demand much
       less recover it as arrears of land revenue. Relying upon Section 38(4) of
       the Act, Shri Dave submitted that the appellant could statutorily impose
 C     a punishment of fine, order imprisonment or impose both. The demand
       being dehors the provisions of the Act must be struck down. Reliance
       was placed on Naraindas Indurkhya vs. The State of Madhya Pradesh
       and Others, (1974) 4 SCC 788.
             4. Contending that the “No Objection Certificate” dated 08.06.1993
 D     was post 30.01.1990 judgment of this Court in M/s Shantistar Builders
       vs. Narayan Khimalal Totame and Others (1990) 1 SCC 520, the
       authorities at best could have enforced a 5% limit for handing over of
       tenements to government nominees.
              5. Shri Dave next submitted that the appellant, to the knowledge
 E     of respondent no.1, had entered into a development agreement for the
       exempted lands with respondent nos. 2 to 4 and given a power of Attorney.
       The liability for breach, if any, and payment in respect thereof were,
       therefore, the exclusive responsibility of the said respondents who alone
       were responsible for the occasioned breaches. Acknowledging the same,
 F     the authorities had also made direct communication with the said
       respondents on 20.01.1994 and 27.01.1994.
               6. Shri Sachin Patil, learned counsel for Respondent Nos. 1 and 5
       submitted that in view of the prohibition contained in Clause 13 of the
       exemption order, the appellant could not have transferred the development
 G     rights to respondent nos. 2 to 4. Any illegal transfer made cannot be of
       any avail to the appellant by urging that the liability for payment, therefore,
       rested with the said respondent to the exclusion of the appellant. The
       exemption granted under the Act was composite in respect of two plots.
       It is not open for the appellant to contend that construction having been
       raised on one plot only, he was not bound by the original conditions of
 H
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR                  1007
        AND COMPETENT AUTHORITY [NAVIN SINHA, J.]


exemption. The no objection certificate relied upon by the appellant was      A
not conclusive as it expressly recited that seven tenements had been
handed over so far, meaning thereby that the remaining seven tenements
were yet to be handed over.
       7. Shri Patil, refuting the submission on behalf of the appellant
that the liability for payment, if any, rested upon respondent Nos. 2 to 4    B
alone, submitted that it was the appellant who had applied for the
exemption under the power of attorney given by the actual land owner.
He alone had applied and was granted permission to start construction.
The building plans were submitted under his signature. Since the appellant
has profiteered by reason of the misuse of the exemption order, the
imposition for recovery of the market value of seven tenements along          C
with penalty, interest etc. as arrears of land revenue calls for no
interference. The appellant himself on 16.05.2005 undertook in writing
to purchase seven tenements in adjoining areas for government nominees
or else pay the market value of seven tenements.
       8. Referring to the submissions for a cap of 5 per cent tenements      D
to be provided only, it was submitted that M/s Shantistar Builders (supra)
has been interpreted as prospective in nature by the Mumbai High Court
relying on Karmarahi Kanji Chandan vs. The State of Maharashtra
and Ors., Writ Petition No. 2629 of 1992 dated 03.12.1992 and which
has been followed in other writ petitions. He also drew our attention to      E
Nargis Jal Haradhvala vs. State of Maharashtra and ors., (2015) 4
SCC 259 in context of the same. It was next submitted that any inter se
dispute between the appellant and respondent nos.2 to 4 in raising the
constructions under the original order of exemption pertains to the realm
of a private dispute between the parties, and with which the authorities
under the Act are not concerned. It was lastly submitted that a mandamus      F
may be issued to the appellant for handing over seven tenements in the
event that this court finds that the impugned demand was unsustainable
for any reason. None has appeared on behalf of respondent nos.2 to 4
despite service of notice.
       9. We have considered the respective submissions made on behalf        G
of the parties. Relevant provisions of the Act which fall for consideration
are Sections 2(d), 20, 21 and 38(4) which are set out hereinunder: -
      “2(d) “competent authority” means any person or authority
      authorised by the State Government, by notification in the Official
      Gazette, to perform the functions of the competent authority under      H
1008      SUPREME COURT REPORTS                          [2020] 6 S.C.R.


 A     this Act for such area as may be specified in the notification and
       different persons or authorities may be authorised to perform
       different functions.
       20. Power to exempt. —(1) Notwithstanding anything contained
       in any of the foregoing provisions of this Chapter—
 B        (a) where any person holds vacant land in excess of the ceiling
          limit and the State Government is satisfied, either on its own
          motion or otherwise, that, having regard to the location of such
          land, the purpose for which such land is being or is proposed to
          be used and such other relevant factors as the circumstances
 C        of the case may require, it is necessary or expedient in the
          public interest so to do, that Government may, by order, exempt,
          subject to such conditions, if any, as may be specified in the
          order, such vacant land from the provisions of this Chapter;
          (b) where any person holds vacant land in excess of the ceiling
          limit and the State Government, either on its own motion or
 D
          otherwise, is satisfied that the application of the provisions of
          this Chapter would cause undue hardship to such person, that
          Government may by order, exempt, subject to such conditions,
          if any, as may be specified in the order, such vacant land from
          the provisions of this Chapter: Provided that no order under
 E        this clause shall be made unless the reasons for doing so are
          recorded in writing.
       Provided that no order under this clause shall be made unless the
       reasons for doing so are recorded in writing.
       (2) If at any time the State Government is satisfied that any of the
 F     conditions subject to which any exemption under clause (a) or
       clause (b) of subsection (1) is granted is not complied with by any
       person, it shall be competent for the State Government to withdraw,
       by order, such exemption after giving a reasonable opportunity to
       such person for making a representation against the proposed
       withdrawal and thereupon the provisions of this Chapter shall apply
 G
       accordingly.
       21. Excess vacant land not to be treated as excess in certain
       cases.—
       (1) Notwithstanding anything contained in any of the foregoing
 H     provisions of this Chapter, where a person holds any vacant land
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR                    1009
        AND COMPETENT AUTHORITY [NAVIN SINHA, J.]


       in excess of the ceiling limit and such person declares within such      A
       time, in such form and in such manner as may be prescribed before
       the competent authority that such land is to be utilised for the
       construction of dwelling units (each such dwelling unit having a
       plinth area not exceeding eighty square metres) for the
       accommodation of the weaker sections of the society, in
                                                                                B
       accordance with any scheme approved by such authority as the
       State Government may, by notification in the Official Gazette,
       specify in this behalf, then, the competent authority may, after
       making such inquiry as it deems fit, declare such land not to be
       excess land for the purposes of this Chapter and permit such
       person to continue to hold such land for the aforesaid purpose,          C
       subject to such terms and conditions as may be prescribed, including
       a condition as to the time limit within which such building are to be
       constructed.
       (2) Where any person contravenes any of the conditions subject
       to which the permission has been granted under subsection (1),           D
       the competent authority shall, by order, and after giving such person
       an opportunity of being heard, declare such land to be excess land
       and thereupon all the provisions of this Chapter shall apply
       accordingly.”
                                    ***                                         E
       38(4) If any person contravenes any of the provisions of this Act
       for which no penalty has been expressly provided for, he shall be
       punishable with imprisonment for a term which may extend to
       two years or with fine which may extend to one thousand rupees
       or with both.”                                                           F
        Both the Sections 20 and 21 of the Act, therefore, contain provisions
that if the Government or the competent authority, as the case may be is
satisfied that any of the conditions subject to which exemption was granted
is not complied with, it shall be competent for it to withdraw the order of
exemption or to declare such land to be excess land under Section 21 of         G
the Act with its attendant consequences as provided under the Act.
      10. This court in S. Vasudeva vs. State of Karnataka and ors.,
(1993) 3 SCC 467 interpreting the provisions of Sections 20 and 21 of
the Act held as follows:
                                                                                H
1010             SUPREME COURT REPORTS                             [2020] 6 S.C.R.


 A            “35. This distinction between Sections 20 and 21 may be noticed
              at this stage. In the first instance, the power given under Section
              20 is to the State Government and not to the competent authority.
              The power given is to exempt the land, and the exemption is to be
              granted to a person. The purpose of exemption is either public
              interest or relief from personal undue hardship. It does not appear
 B
              to be obligatory on the State Government to prescribe any
              conditions while granting the exemption. However, if any conditions
              are specified and if the State Government is later satisfied that
              there is noncompliance with any of the conditions, the State
              Government is given power to withdraw the exemption.
 C            36. As far as Section 21 is concerned, the power conferred by it
              is not to exempt the land but to declare it not to be excess for the
              purposes of Chapter III. The power is given to the competent
              authority itself. It is to be exercised by it only under one
              circumstance. That circumstance is that the holder of the vacant
 D            land should declare before it within a specified time and in the
              prescribed form and manner, that he desires to utilise the land for
              the construction of the dwelling units of not more than the particular
              size mentioned therein for accommodating the weaker sections
              and in accordance with any scheme approved by the specified
              authority. It is the competent authority which is required to make
 E            inquiry as it deems fit into such a declaration, and if it is satisfied,
              to declare that such land shall not be excess within the meaning
              of the said chapter. However, it appears that the competent
              authority is required to prescribe certain terms and conditions while
              declaring the land not to be an excess land, including a condition
 F            with regard to the time-limit within which such buildings are to be
              constructed, and on the breach of any of the conditions, the
              competent authority is also given power to declare the land to be
              an excess land.”
              11. Shri Bhaskar Govind Bhoir and Shri Waman Govind Bhoir
 G     were the original owners of the lands which were declared surplus under
       the Act on 31.07.1980. The agreement for sale dated 12.03.1984
       executed by the owners in favour of the appellant, who was the proprietor
       of M/s. Jay Pali Builders, itself recited that the sale would be subject to
       the provisions of the Act and that the appellant would obtain all permissions
       for development under the same. A general power of attorney dated
 H     15.01.1985 was then executed by the owners in favour of the appellant
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR                   1011
        AND COMPETENT AUTHORITY [NAVIN SINHA, J.]


inter alia authorising him to pursue matters before the competent              A
authority under the Act and to obtain all necessary permissions,
exemptions etc. for development on the lands. The appellant then applied
for exemption which was granted on 02.03.1988 by the State Government
under the guidelines issued under Section 20 of the Act being Government
Resolution, Housing and Special Assistance Department SS 1086/2340/
                                                                               B
XIII dated 22.08.1986. The exemption was granted in respect of 78
tenements to be constructed on the exempted lands identified as Survey
No. 37 (part corresponding to CTS No. 261) and Survey No. 34 (Part
CTS No. 245). The exemption mandated 20 per cent (15 tenements) to
be handed over for allotment to government nominees belonging to
weaker sections of the society. A corrigendum was issued on 29.12.1988         C
by the State Government at the request of the appellant, increasing the
area for construction under Section 8(4) of the Act from 3785 sq.mtrs to
4412.10 sq.mtrs. The 20 per cent requirement for government nominees
accordingly stood enhanced to 18 tenements. As out of the two CTS
plots for which exemption was granted, the appellant developed only
                                                                               D
one plot bearing CTS No. 261, he was therefore liable to surrender 588
sq.mtrs. i.e. 20% of the built-up area in form of 14 tenements for allotment
to Government nominees.
      12. The order of exemption dated 02.03.1988 contained conditions
which were in accord with the statutory provisions. Clauses 5, 9, 13, 17
and 18 are considered relevant and are extracted hereinunder: -                E
      “5. The said person shall commence construction of the tenements
      within a period of 1 year from the date of this exemption order
      shall complete the construction work within 3 years, falling the
      exemption shall stand withdrawn. If only a part of the land utilized
      by the said person and a aprt remains vacant at the end above            F
      date 22.02.1991 the exemption for the part which remain vacant
      or where the buildings are incomplete, for the land under
      incomplete building and the land appurtenant thereto shall be
      deemed to have been withdrawn and vacant land and such land
      with structure and land appurtenant shall be acquired as per chapter
                                                                               G
      III of the Urban Land (Ceiling and Regulation) Act, 1976.
                                    ***
      9. The said person shall sell 20% of the permitted floor space to
      the allottees nominated by the Government of Maharashtra at the
      rate of Rs. Sq.ft. (illegible).                                          H
                                    ***
1012            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


 A           13. The said person shall not transfer the exempted lands or without
             building thereon or any part thereof to any other person, except
             for the purpose of mortgage in favour of any financial institutions
             specified in sub-section (1) of section 19 of the for raising finance
             for the purpose of construction of any one of the tenements
             mentioned above, breach of this conditions shall that exemption
 B
             granted under this order stands withdrawn.
                                          ***
             17. If at any time, the State Government is satisfied that there is a
             breach of any of the conditions mentioned in this order, shall be
 C           competent for the State Government to withdraw by an the
             exemption order from the date specified in the order. Provided
             that, before making any such order the state Government shall
             give reasonable opportunity to the person whose are exempted
             for making representation against the proposed withdrawal.
 D           18. when any such exemption is withdrawn or deemed to be
             withdrawn under these conditions, the provisions of the Chapter-
             III of the said Act shall apply to the lands as if the land had not
             been adopted under this order.”
              13. We are of the considered opinion that in the nature of the
 E     composite exemption granted, the failure of the authorities to cancel or
       withdraw the exemption for breach by transfer of development rights to
       respondents nos.2-4 or construction on one plot only and the consequent
       claim based on the “No Objection Certificate” dated 08.06.1993 issued
       for purposes of a water connection, is of no avail to the appellant as the
       certificate expressly recites that so far only seven tenements had been
 F     handed over meaning thereby that the further seven tenements remained
       to be handed over. The certificate was therefore conditional in nature
       and not absolute.
              14. The plea of the appellant that the liability under the impugned
       demand rested upon respondent nos. 2 to 4 alone in view of the
 G     development agreement between the parties, and that the authorities
       had made any direct communication with the said respondents also does
       not merit any consideration in view of the facts of the case coupled with
       the provisions of the Act. Subsequent to the grant of exemption, the
       appellant entered into a development agreement with respondent nos. 2
       to 4 as early as on 29.08.1988 describing himself as the owner and also
 H
  SHRIDHAR C. SHETTY (DECEASED) THR. LRS. v. ADDL. COLLECTOR                   1013
        AND COMPETENT AUTHORITY [NAVIN SINHA, J.]


handed over the title deeds of the property. But the appellant informed        A
the authorities of this fact very belatedly on 15.04.2005. The building
plan was approved in the name of the appellant on 19.10.1988. The
permission to commence construction was issued in his name on
28.02.1989. He alone had applied for extension of the scheme leading to
issuance of the corrigendum dated 29.12.1988. The appellate authority
                                                                               B
in his order dated 12.07.2006 has adequately noticed that it was the
appellant who was the de facto owner of the plot, had submitted the
application for exemption, given an undertaking on stamped paper dated
16.05.2005 to fulfil the conditions of the exemption by providing the
additional seven tenements or market value in respect thereof. The
question of any estoppel, therefore, does not arise. Shri Patil is therefore   C
right in his submission that any dispute between the appellant and
respondents nos. 2 to 4 under the development agreement between them
falls in the realm of a private dispute and does not detract from the
exclusive liability of the appellant under the order of exemption.
       15. The appellant having failed to hand over the remaining seven        D
tenements, the impugned demand dated 15.10.2005 then came to be
raised by respondent no.1 as being the current market value rate of the
remaining seven tenements pursuant to the undertaking of the appellant
dated 16.05.2005. This was preceded by repeated request to the appellant
for handing over seven tenements.
                                                                               E
       16. There is no dispute with regard to the fact that there had been
a breach by the appellant in terms of the exemption. The authority under
the Act also did not take any steps to withdraw the exemption because
of such breach. The tenements have been constructed and sold as we
were informed. No directions therefore can be issued to hand over seven
more tenements from the constructions so raised. The question that arises      F
for consideration however is whether the competent authority under the
Act possesses the power to recover the market value of seven tenements
for failure to hand over possession in terms of the order of exemption.
The undertaking dated 16.05.2005 by the appellant, to pay the price of
the same in the event of the failure to do so, in our opinion cannot expand    G
the statutory powers of the competent authority under the provisions of
Sections 20 and 21 of the Act. The appellant has justifiably raised a pure
question of law before us for the first time, which was acknowledged
not to have been raised earlier either before the appellate authority or
the High Court under Section 38(4) of the Act.
                                                                               H
1014             SUPREME COURT REPORTS                          [2020] 6 S.C.R.


 A             17. It being a pure question of law, the facts being undisputed, we
       see no reason not to allow the appellant to raise the same before us for
       the first time. The competent authority under the Act could have certainly
       withdrawn the exemption in the event of breach along with all its attended
       consequences. Failure to do so did not deprive the statutory authority of
       its powers to proceed appropriately under the Act. But the competent
 B
       authority being a creature of the statute under Section 2(d) of the Act,
       cannot act beyond its statutory jurisdiction and the exercise of its powers
       shall remain circumscribed by the provisions of the Act. Any undertaking
       by the appellant cannot expand the statutory jurisdiction of the competent
       authority. The demand for the market value of the remaining seven
 C     tenements, falling outside the purview of the Act, cannot be construed
       as money due to the Government so as to vest in it the nature of an
       arrears of land revenue recoverable under Section 265 of the Maharashtra
       Land Revenue Code, 1966. We have, therefore, no hesitation in
       concluding that the impugned demand is dehors the provisions of the Act
       and unsustainable being beyond the statutory powers of the competent
 D
       authority and thus arbitrary.
              18. The submission of Shri Amar Dave with regard to a cap of 5
       per cent on the tenements to be handed over in view of the judgement in
       M/s. Shantistar Builders (supra) has to be stated to be rejected. As
       noticed above, M/s. Shantistar Builders (supra) has been interpreted
 E     to be prospective in nature. A bare perusal of paragraphs 21 and 22 of
       the judgement leaves no doubt in our mind also that it was intended to be
       only prospective in nature in its operation.
             19. The order of the High Court is set aside. The appeal stands
       allowed.
 F

       Kalpana K. Tripathy                                          Appeal allowed.




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