9911796707
TMI Blog2020 (9) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... el, therefore, does not arise. Shri Patil is therefore 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. The Appellant having failed to hand over the remaining seven 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. 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? - HELD THAT:- 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 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant was required to surrender 20 per cent of the constructed area to government nominees. The competent authority 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 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 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 v. The State of Madhya Pradesh and Ors. (1974) 4 SCC 788. 4. Contending that the No Objection Certificate dated 08.06.1993 was post 30.01.1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t nominees or else pay the market value of seven tenements. 8. Referring to the submissions for a cap of 5 per cent tenements 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 v. 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 Nargis Jal Haradhvala v. 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the foregoing provisions of this Chapter, where a person holds any vacant land in excess of the ceiling limit and such person declares within such 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 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, 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 Sub-section (1), the competent authority shall, by order, and after giving such person an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make 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 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 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 15.01.1985 was then executed by the owners in favour of the Appellant inter alia authorising him to pursue matters before the competent authority under the Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 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. 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 composite exemption granted, the failure of the authorities to cancel or withdraw the exemption for breach by transfer of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant dated 16.05.2005. This was preceded by repeated request to the Appellant for handing over seven tenements. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
