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The Urban Land (Ceiling and Regulation) Act, 1976
The Special Marriage Act, 1954
Section 20 in The Urban Land (Ceiling and Regulation) Act, 1976
Section 21 in The Urban Land (Ceiling and Regulation) Act, 1976
The General Clauses Act, 1897

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Bombay High Court
In The High Court Of Judicature At ... vs // on 14 August, 2008
Bench: D.D. Sinha, A.P. Bhangale
    W.P.No.5684 of 2007                  1




                                                                               
                                                       
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR




                                                      
                          WRIT PETITION NO. 5684 OF 2007


       PETITIONER




                                            
                             :   Shri Mohan s/o. Gopalrao Mate,
                                 Ex. M.L.A., Aged about 38 yrs.,
                                 Occ. Social Worker, r/o. near
                                 
                                 C.P. and Berar College, Mahal,
                                 Nagpur, Tah. and Distt. Nagpur.
                                
                                  // VERSUS //


       RESPONDENTS           :   1. Principal Secretary,
            

                                    Urban Development Department,
                                    Government of Maharashtra,
                                    Mantralaya, Mumbai-400 032.
         



                                 2. The Collector,
                                    Nagpur District,
                                    Nagpur.





                                 3. Competent Authority under the
                                    provisions of Urban Land (Ceiling
                                    and Regulation) Act, 1976;
                                    Collectorate, Nagpur.





       INTERVENER            :     M/s. Rathi Realtors Pvt. Ltd.,
                                   being represented through its
                                   authorised Director Shri Vijay
                                   s/o. Chirkutrao Raut, Aged
                                   about 41 yrs, Occ. Business,
                                   r/o.Jaitala Road, Nagpur,
                                   Tq. & Distt. Nagpur.




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     W.P.No.5684 of 2007               2




                                                                            
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
             Mr.C.V.Kale, Counsel for Petitioner.




                                                    
             Mr.S.V.Akolkar, Adv. for Intervenor.
             Mrs.B.H.Dangre, AGP for Respondents.
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                   ________




                                                   
             Date of reserving the Judgment    : 30.07.2008.
             Date of pronouncement of Judgment : 14.08.2008.
                               ________




                                          
                                   CORAM     : D.D.Sinha and
                                               A.P.Bhangale, JJ.
                              ig   DATED     : AUGUST 14, 2008.
                            
     JUDGMENT        ( Per D.D.Sinha, J )     :

1. Rule made returnable forthwith by the consent of Mr.C.V.Kale, Counsel for Petitioner, Mr.S.V.Akolkar, Adv. for Intervenor and Mrs.Dangre, Additional Government Pleader for Respondents. Heard the learned counsel for the respective parties.

2. Counsel for the petitioner has submitted that the petitioner is Ex-MLA and a social worker. The impugned Government Resolutions have adversely affected large number of Housing Schemes and it will also affect large number of individual flat owners in ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 3 several such Schemes. It is next to impossible to acquire land in the vicinity and to construct and hand over 5 % built up area in today's rate and sell it to Government nominees at Rs.400/- per square feet of the built-up area, which is the Government pre-determined rate for Government quota flats. The instant petition aims at protecting large number of people, which includes buyers of the apartments, from the undue hardship that may ensue due to implementation of the impugned Government Resolutions, which are unjust, discriminatory, invalid and contrary to the provisions of law,.

3. Counsel for the petitioner has further submitted that the petitioner has filed the present petition in the interest of Public as the Government Resolutions dated 8.11.2007 and 12.4.2007 are against the Public Policy and would affect the citizens who are the original owners of the lands and were legally granted exemption to hold vacant lands in excess of the ceiling limit U/s. 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the ULC Act", which has been repealed w.e.f. 29.11.2007 by the Government by adopting the Urban ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 4 Land (Ceiling And Regulation) Repeal Act, 1999 (hereinafter referred to as "the Repeal Act"). Though the ULC Act has been repealed intentionally and mala- fidely, Government has issued the aforesaid resolutions which are impugned in this petition. As a result, the Government, instead of ruling out manipulation, is giving opportunity to the respondent Nos. 2 and 3 to take arbitrary and malafide decision so as to harass ig the original land owners/scheme holders as well as a common man who has purchased the flats in the said Scheme. It is submitted that, after granting exemption to hold vacant land in excess of the ceiling limit under section 20 of the ULC Act, the land owners have to surrender certain portion of the vacant land to the Government free of cost. The Government, prior to adoption of Repeal Act, allowed to utilize such lands by the original land owners under the provisions of section 23 of the said Act, if it was not possible to use such a land for any public purpose and was likely to be encroached. It is further submitted that considering inability of Government to protect the possession of said land, it was permissible to the land owners to buy-back such lands vide Government Resolution No.ULC 10 (2004)/C ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 5 No.93/ULCA-2 dated 14.07.2004. However, for no cogent reason, Government has issued the impugned Resolution dated 8.11.2007 which is prima-facie arbitrary, unjust and not in the public interest and therefore, the same is liable to be quashed and set aside. This decision of the Government is arbitrary and that would give rise to the respondent Nos. 2 and 3 to allot such lands (surrendered lands) to the men of their choice.

     This     has    happened   on
                                 ig   a    large      scale,    as     has      been

specifically observed and pointed out by the " JUSTICE BATTA COMMISSION" and therefore, revoking the earlier decision i.e. buy-back of surrendered land, again there would be accumulation of huge lands with the respondent Nos. 2 and 3 and there would be repetition of the mala-fide acts by the respondent Nos. 2 and 3. As a result of which, the main aim and object of the Special Act would be defeated.

4. It is submitted by the learned counsel for the petitioner that Government has issued a G.R. dated 31.07.2006, however, the effect and operation of said Govt. Resolution has been stayed by this Court in Writ Petition No.4966 of 2006 by passing the following orders :

::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 6
Order dt.4.10.2006 :
" Heard Mr. C.V.Kale, Adv. for the petitioner.
Notice returnable in three weeks.
Mr.Agrawal, AGP waives notice on behalf of respondent nos. 1 to 3. In the meanwhile, the parties to maintain status-quo".
Order dt. 7.11.2006 :
" We grant ad-interim relief in terms of prayer clause (ii) of the petition during the pendency of the petition. With this observation, the application is disposed of.
Order dt. 8.12.2006 :
" In the meantime, the authorities need not pass orders on the applications made under the scheme until further orders."

5. However, the Government has issued a fresh G.R. dt. 12.4.2007 flouting the afore-said orders passed by this Court in Writ Petition No.4966 of 2006 ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 7 and therefore, the Govt Resolution dt. 12.4.2007 is liable to be quashed and set aside.

6. Counsel for the petitioner has further submitted that the ULC Act proposed to be repealed in the winter session held in the month of November, 2007 at Nagpur, as there was heavy pressure from the Central Government for scrapping the ULC Act, the Government of Maharashtra has issued one more Govt.

Resolution dt. 8.11.2007, which is impugned in this petition, without giving any reference of earlier Govt. Resolutions dt. 24.4.2000, 19.9.2001 and 14.7.2004. The Govt. Resolution dt. 8.11.2007 has been issued as if the Govt. Resolutions dt. 24.4.2000, 19.9.2001 and 14.7.2004 are not in existence. Thus, the Government was well aware about the Repeal Act, 1999 and the provisions made thereunder. To negate those provisions, the following Government Resolutions were issued mala-fidely.

                 1.   G.R.      dated    24.4.2000.
                 2.   G.R.      dated    19.9.2001.
                 3.   G.R.      dated    14.7.2004.
                 4.   G.R.      dated    8.11.2007.
                 5.   G.R.      dated    12.4.2007.




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     W.P.No.5684 of 2007                          8




                                                                                          
      7.          In       the     present           petition,       petitioner              is
      challenging                validity            of     Govt.            Resolutions




                                                                  
      dt.8.11.2007 and 12.4.2007.


      8.          Counsel          for     the        petitioner         has       further




                                                                 
      contended           that    the     Government        of    Maharashtra              has
      issued      G.R.       dt.     8.11.2007,           therein       it     has       been




                                                      

disclosed that Government has taken the decision on 31.6.2007 whereby the popular and successful scheme on Talegaon Dabhade pattern evolved as per G.R. dt. 15.01.1992 (Special Dispensation for plotted development) was unilaterally cancelled. By this decision dt. 31.6.2007 the Government has again flouted the orders dt. 4.10.2006, 7.11.2006 and 8.12.2006 which were passed by this Court in Writ Petition No.4966 of 2006. By the Govt. Resolution dt. 31.7.2006, Government has cancelled all final orders granting special plots scheme on the pattern of Talegaon Dabhade on surplus land, under the ULC Act. The operation of this G.R. has been stayed by this Court vide the afore-said orders.

9. Counsel for the petitioner has submitted that the impugned Govt. Resolution dt. 8.11.2007 ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 9 issued by the Government alleging that many scheme holders have committed violations of the terms and conditions of Scheme and therefore, several land owners/scheme holders approached the Govt. with a request that though violation of terms and conditions of the scheme has occurred at their hands, but 3rd party interest has been created in respect of flats, construction of which is completed in some schemes and some schemes are in progress and in such a situation, on sympathetic consideration, partial modifications have been effected in the Government resolutions issued on 12.4.2007 and the revised Government Resolution dt. 8.11.2007 has been issued. It is submitted that the preamble of the impugned Govt. Resolution dt. 8.11.2007 has no basis and it is totally imaginary and concocted. So far as the alleged violation No.1 mentioned in the Government Resolution is concerned, the amalgamation has been permitted by the Government vide Govt. Resolution dt. 24.4.2000. So far as alleged violation No.2 is concerned, the same is with the permission of the competent authority under the ULC Act. And so far as the alleged violation No.3 is concerned, the Government and it's planning ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 10 authority is free to initiate appropriate action under the provisions of the the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as " the MRTP Act ").

10. It is submitted by the learned counsel for the petitioner that granting exemption u/s. 20 to hold vacant land in excess of the ceiling limit was under the purviewig of the ULC Act and the jurisdiction of competent authority under the ULC Act was to the extent of granting exemption u/s. 20 and once the scheme was sanctioned under the said Act by the ULC authority, the functions of ULC Department ceased and it had no authority to interfere with the functions of Planning Department i.e.

✂✁☎✄ ✆✞✝✠✟✡ ☞☛✍✌ , which controls and regulates the activities of building and Construction. Under such circumstances, issuance of impugned Govt. Resolution is nothing but an encroachment upon the functions of the planning authority and to have a control over the building and construction activities being carried out on the lands exempted under the ULC Act which is also repealed w.e.f. 29.11.2007.

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11. Counsel for the petitioner has submitted that there is no justification in fixing 12.4.2007 as the cut-off date for taking action under the impugned Govt. Resolution. The exemption orders u/s 20(1)(a) as per existing policy of Government have already been granted and acted upon and the Schemes are completed in most cases. No action, as envisaged by new Govt. Resolution can be justified and possible.



      12.         Counsel
                                   
                                  for    the     petitioner        has       submitted

that, moreover, there is no relevance for this cut-

off date 12.4.2007 as the Govt. Resolution dt. 12.4.2007 is also in violation of the order passed by this Court in Writ Petition No.4966 of 2006 on 4.10.2006, 7.11.2006 and 8.12.2006.

13. Counsel for the petitioner has further submitted that, in the Govt. Resolution dt. 8.11.2007, Government has admitted that the Planning Authority has granted permission prior to 12.4.2007 and accordingly, constructions have been carried out by the land owners/scheme holders. In that case, there is no question of any irregularity carried out by the land owners/scheme holders. If any ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 12 irregularity is committed by any land owners/scheme holders in respect of sanction given by the Planning Authority, action can be taken under the provisions of the MRTP Act by the said Planning Authority and the competent authority, under the ULC Act, has no legal right to cancel permission granted by Planning Authority in view of alleged violation, if any.

However, the ULC Department unlawfully wants to regulate the functions of the Planning Authority of a particular area. It is further submitted that whosoever commits any violation of the sanction given by the Planning Authority, the Planning Authority is competent to initiate appropriate action against such person and it is not the job of the ULC Department.

14. Counsel for the petitioner has further contended that if we read the clauses (a) and (b) of the Govt. Resolution dt. 8.11.2007 together, it reveals that the ULC Department has granted permission for amalgamation of entire scheme and accordingly, permit has been issued prior to 12.4.2007 by the Planning Authority and in some cases, building permit has been granted by the Planning Authority after 12.4.2007. When the ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 13 permission has already been granted by the Planning Authority, it is inappropriate and unjust to cancel the same. In Clause (b) of the said Govt. Resolution, it is mentioned that if the scheme holder demands permission for constructing multi-storied building by amalgamating the plots, then in that case, such a permission can be granted subject to the condition of restoring 5 % constructed area to the Government at the pre-determined rate out of such constructed area and maintaining area of apartment in scheme limited to 80 sq. mtrs. This clearly goes to show the mala-

fides of Government as Govt. would grant permission if it is demanded by scheme holder for consolidation of plots and construction of multi-storied building.

15. It is the case of petitioner that when the ULC Act has been repealed, permission granted earlier u/s. 20 of the said Act with certain conditions, the land owner is legally entitled to carryout the said scheme as per the order passed u/s. 20 (1) of the said Act and the conditions stipulated therein cannot be modified by the Government by issuing impugned Govt. Resolution. There is no provision in the Repeal Act to permit extra construction on surrendering 5 % ::: Downloaded on - 09/06/2013 13:41:53 ::: W.P.No.5684 of 2007 14 apartments to the Government. Similarly, Government cannot alter the said exemption order to negate the order of sanction passed by the Planning Authority.

16. Counsel for petitioner has submitted that, by the impugned Government Resolution dt. 8.11.2007, the Government is trying to implement the policy and impose conditions of the earlier Scheme for construction of tenements ig for economically weaker section as per the guidelines dt. 22.8.1996 i.e. to compel the land owners/scheme holders to sell to the Government 5 % built-up area in the given scheme at pre-determined rates. These rates are just 10-20 % of the present market value. It is submitted that the scheme dt. 22.8.1986 was specially designed for EWS and hence, there were restrictions on size, number and price of tenements to be constructed and sold by the land owners/developers. The scheme on Talegaon Dabhade Pattern is by way of special dispensation and is not for EWS as the same permits plotted development and sell of plots and/or tenements in open market. Restrictions under the guidelines are only as regards to size of plots and tenements, if the plots are amalgamated at the option of the ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 15 owner/developer. Thus, both the schemes are distinct and evolved to achieve different objectives.

Conditions of one scheme cannot be imposed on another scheme by giving retrospective effect. Moreover, the Government has already cancelled the scheme on Talegaon Dabhade Pattern vide Govt. Resolution dt. 31.7.2006.

17. Counsel for the petitioner further contended that, during the course of arguments, the learned Additional Government Pleader, on the point of effect of Repeal Act, tried to take shelter of saving clause i.e. Section 3 (1)(b) of the U.L.C.

Repeal Act, 1999, in support of the impugned Govt.

Resolution dated 8.11.2007. However, plain reading of the said Govt. Resolution makes it crystal clear that what is saved is particular order u/s. 20 (1) granting exemption and action taken thereunder. In this view of the matter, only individual order granting exemption u/s. 20(1) and action taken thereunder are treated as valid and saved. The impugned Govt. Resolution dt. 8.11.2007 cannot therefore, by any stretch of imagination, be considered or treated as "action taken thereunder"

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as is projected by the Government.

18. It is equally important to note that the Legislature has saved only orders and actions taken thereunder (meaning past actions). It is submitted that Section 20(2) of the said Act, which confers upon the State power to withdraw exemption for breach of the conditions of the exemption order, whereas in fact Section 20 (2) of the said Act was the only remedy available under the said Act if any condition is violated. The impugned Govt.

Resolution dt. 8.11.2007 is virtually a substitute to provisions of Section 20(2) of the said Act and hence, cannot find support in law in view of the Repeal Act, 1999.

19. Counsel for the petitioner further submitted that perusal of the Statement of Objects And Reasons of the Repeal Act shows that the principal Act was required to be repealed because of the unanimous public opinion that not only the principal Act has failed to activate what was expected of it but it has pushed up the land prices to unconscionable levels. In this background, therefore, the impugned ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 17 Govt. Resolution dt. 8.11.2007 was deliberately passed by the Government to continue its unlawful policy, just 20 days prior to the repealing enactment came into force i.e. on 29.11.2007. When the principal Act has been repealed, the Government cannot continue its activities by the impugned Govt. Resolutions as the same have not been saved by saving clause and what has been saved under Clause (3)(1)(b) of the Repeal Act is as follows :

" the validity of any order granting exemption under sub-section 1 of section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary"

Therefore, Government has no power to issue the impugned Govt. Resolutions dt. 12.4.2007 and 8.11.2007 as the said Govt. Resolutions are contrary to the provisions of law.

20. It is submitted that, after granting exemption u/s. 20 (1) of the Principal Act, which has been saved by the Repeal Act, the competent Authority used to permit amalgamation of plots in the schemes and exemption order used to be passed and thereafter, ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 18 the land owners/scheme holders used to submit their plans for the proposed construction to the Planning Authority and considering the exemption granted for amalgamation of plots under schemes by the competent authority under the Principal Act, the Planning Authority used to issue the building permits in view of the provision of the MRTP Act. In case there is violation while undertaking the construction work, the Planning Authority is competent to take suitable actions under the Principal Act. It is obvious that, for violation of building permit, two departments of the Government i.e. Planning Authority and department of ULC cannot initiate the same action. In that view of the matter, there is no logic to fix the cut-off date, whether a land owner/scheme holder obtains building permit prior to 12.4.2007 or after 12.4.2007. Under the Principal Act, respondents cannot make any discrimination between a person who obtains building permit prior to 12.4.2007 when the exemption orders with amalgamation of plots and schemes have been saved under the Repeal Act. It is submitted that respondents cannot give retrospective effect by issuing impugned Govt. Resolutions and all of a sudden withdraw the permission for amalgamation ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 19 of plots and schemes of those who have not obtained the building permit prior to 12.4.2007. Not obtaining building permit from the Planning Authority prior to 12.4.2007 is not the fault on the part of land owners/scheme holders as they were pursuing the matter with the Planning Authority and therefore, the impugned Govt. Resolutions dt. 12.4.2007 and 8.11.2007 are nonest and hence the same may be quashed and set aside.

21. Mrs.B.H.Dangre, Additional Government Pleader for Respondent Nos. 1 to 3 has submitted that the petitioner had invoked the writ jurisdiction of this Court on the ground that he is active social worker and has filed the present writ petition espousing a public cause and for resolving the grievance of the public. The petitioner has no personal interest in the present writ petition. The petitioner, by the present writ petition, has sought direction to quash the Government Resolution dated 08.11.2007 being in violation of the provisions of Article-14 of the Constitution.

22. It is further submitted by the Additional ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 20 Government Pleader that the instant petition is not a Public Interest Litigation and is rather a Individual Interest Litigation or a litigation espousing the cause of the developers and builders under the guise of Public Interest Litigation. The petitioner in the entire petition has failed to disclose the element of Public Interest as claimed by him and said element of Public Interest is conspicuously absent in the Public Interest Litigation. ig The grant of scheme of exemption under Sections 20 & 21 of the ULC Act was for the construction of dwelling units and the Government has scraped the Talegaon Dabhade scheme by issuing Government Resolution dated 31.07.2006 specifically because the persons to whom the exemption were granted and who were permitted to develop the land on the pattern of Talegaon Dabhade scheme had totally misused the said exemption. It is most respectfully submitted that the present writ petition is nothing but misuse of the writ jurisdiction of this Hon'ble High Court and the petitioner, who claims that jurisdiction of this Court has been invoked to serve the public cause, has failed to demonstrate the larger public interest involved in the present writ petition. The preamble ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 21 of the Government Resolution itself indicates that there were several irregularities committed in respect of implementation of the schemes sanctioned under Section 20 of the ULC Act and instead of canceling the entire scheme where third party interest was already created, several scheme holders had approached the Government with a request that though violation of the terms and conditions has occurred at their hands, but due to creation of third party interest, they would face tremendous inconvenience and requested the Government for relaxing the conditions mentioned in the guidelines dt.22.08.1986. The petitioner made oral statement before this Court that no such scheme holders had approached the Government and the Government had taken a decision on its own. The said statement is without any relevance as the impugned Government Resolution discussed the same in detail and the Government had considered the Larger Public Interest and therefore the petition under the guise of Public Interest Litigation at the instance of present petitioner is not maintainable.

22. The Additional Government Pleader has further ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 22 contended that the State Government has framed scheme U/s 20 of the ULC Act and granted exemption to the persons holding vacant land in excess of ceiling limit which authorized the Government to exempt the said person from the provisions of the Act. Further Clause-II of Section 20 authorizes the Government to withdraw such exemption if it is found that the conditions subject to which the exemption was granted under Clauses (a) or (b) of Sub-Section (1) were not complied with by any person. It is submitted that Section 21 gives powers to State Government in case of vacant land in excess of ceiling limit and if such person declared within such time, in such form and in such manner as may be prescribed before the competent authority that such land would be utilized for the construction of dwelling units for the accommodation of the weaker sections of the society in accordance with the scheme approved by the competent authority as the State Government may specify to treat such land not in excess. Section 21, sub-section (2) authorized the competent authority to declare the said land as excess if there was any violation of the conditions subject to which the permission has been granted.

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23. It is further submitted that the State Government from time to time has formulated the scheme for housing for weaker Sections of the society in exercise of the powers U/s 20 of the ULC Act.

Such scheme was also formulated U/s 21 for construction of houses for weaker Sections and the Scheme announced by the State Government in the year 1979 was amended from time to time.

24. It is further submitted that the Urban Development Department, State of Maharashtra has approved and brought in force the special dispensation scheme for grant of exemption under section 20 of the Urban Land Ceiling Act in favour of persons holding surplus land by Resolution dated 22.08.1988 and the Government Resolution dated 31.07.2006 has cancelled this scheme.

25. It was contended that Section 21 of the Said Act makes a provision, where a person holding any land in excess of the ceiling limit declared within such time, in such form and in such manner as may be prescribed before the competent authority that such ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 24 land was to be utilized for the construction of dwelling units (each such dwelling unit having a plinth area not exceeding of upto 40 & upto 80 for the accommodation of the weaker sections of the society, in accordance with any scheme approved by such authority as the State Government may specify such person, was permitted to continue to hold such land for the aforesaid purpose, subject to such terms and conditions as may be prescribed.

                                    ig                           Section 21 also
     provided        that        on    contravention           of     any       of      the

conditions subject to which the permission has been granted, by giving opportunity to the person concerned, provisions of the ULC Act would apply to such land.

26. It is further submitted that, in the backdrop of the said scheme of the ULC Act, the Housing and Special Assistance Department, vide Government Resolution dated 22nd August, 1986 provided guidelines for smaller sizes tenements, core houses or single room tenements on the surplus land to be exempted under section 20 of the ULC Act.

27. The Additional Government Pleader has further ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 25 submitted that the Housing and Special Assistance Department vide Government Resolution dated 22 August, 1988, the Government has approved a Special Dispensation Scheme for grant of exemption under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 in favour of person holding surplus vacant land on Talegaon-Dabhade pattern. The said scheme which become popularly known as "Talegaon Dabhade Scheme" which required the land holder to surrender some percentage of the land free of cost to Government as enumerated in the Government Resolution and on the land allowed to be retained by the landholder, plotted development was permitted. It was also kept open to the landholder to either sell individual plots or to undertake construction on such plots and sell the dwelling units to members of the public. It was mandatory for the land holder to get the layout of the land permitted to be retained by him approved by the Planning Department. Failure to comply with any of the stipulation mentioned in the said Govt. Resolution, the Government was authorized to revoke the exemption or refuse to grant further extension of time.

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28. It is submitted that, as per the scheme, one individual holder was entitled to a retainable share of 1500 sq. meters. From the surplus land, the landholder was to surrender the Government share as per the percentage, upto 4000 sq. mtr., the Government share was nil from 4500 sq. meter to 6000 sq. meter the Government share was 15% and above, it was 25%. The plots could be sub-divided into three types (a) 100 sq. mt. (b) 250 sq. mt. (c) 500 sq. mtr. In each of these categories 1/3 surplus areas was required to be maintained.

29. It was further contended that the ULC Act was made applicable to the urban agglomeration i.e. Greater Mumbai, Thane, Pune, Ulhasnagar, Kilhapur, Solapur, Nagpur, Sangli, Nashik. At the time of implementing the provisions of Act, initially housing schemes u/s 20 and 21 of the Act were used to be approved and implemented. However, due to lack of proper infrastructure facilities and semi urban nature, in some of the urban agglomeration, implementation of housing scheme was not found to be feasible to the landholder. Keeping this in mind, the Special dispensation scheme, i.e. Talegaon ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 27 Dabhade Yojana, for plotted development of surplus land was brought into force for the development of Talegaon Dabhade and 21 adjacent villages. Thereafter, due to consistent demand for the benefit of Talegaon Dabhade Pattern to Nagpur and other such agglomeration, the Government of Maharashtra finally took a policy decision and the benefit of scheme of Talegaon Dabhade Pattern was also extended to other agglomeration including ig Nagpur urban agglomeration. The said policy decision is enumerated in Government Resolution dated 16.01.1992.

30. It was submitted that, due to escalated urbanization in the course of time, the semi urban nature of urban agglomeration has come to an end and better infrastructural facilities are being made available in the said urban area. In the special dispensation scheme namely Talegaon Dabhade scheme, the plots of the size of 250 sq. mtr. and 500 sq. meters were put for sale by scheme holder. It is submitted that the person who purchases the plot under the said scheme of the above size has not only to pay for cost of land but was also to bear the expenses for making construction on the said plot, ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 28 thus making it difficult for the common man to own the house. Moreover, the cost of land is increasing day by day and some people purchase the plots only for the sake of investment and for profiteering. This defeats the whole purpose of special dispensation scheme.

31. It was further submitted by the Additional Government Pleader that it is also observed by the State Government that many scheme holders of Special Dispensation Scheme, by amalgamating the adjacent plots, are constructing the multi-storied building on the said plot, without surrendering 5% flats to the Government as per the requirements of the scheme and without following the restriction of the size of tenement and sold these plots to the rich section of the society. For granting exemption under sections 20 and 21 of the ULC Act was granted for making houses for the weaker section under the scheme, the prices are predetermined so that they are well within the reach of weaker section of the society. However, there is no Government control on the price of the plot of land to be sold under special dispensation scheme.

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32. The Additional Government Pleader further submits that, in view of the aforesaid aspects, a policy decision was taken by the Cabinet Sub Committee, for cancellation of the special dispensing scheme, in view of the mis-utilization of the scheme which was defeating very purpose of granting exemption, and it has adversely effected the economically weaker Sections of the Society. Looking to the increase in population and for making available housing for weaker Section at affordable price, it is more feasible to construct multi-storied building than single storied building on such land and therefore, need for Special Dispensation Scheme was dispensed with and cancelled.

33. It was submitted that a conscious decision, therefore, was taken and the Government Resolution dated 31.07.2006 was passed which was challenged by the petitioner and said petition is still pending before this Court.

34. It was further contended that, as far as the impugned Government Resolution is concerned, it is ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 30 based on sympathetic consideration whereby modifications have been effected in the Government Resolution dated 12.04.2007. The impugned Government Resolution is based on the concession and relaxation which is given to the scheme holders who had availed the special dispensation scheme by agglomerating the adjacent plots and have constructed the multi-storied buildings on the said plots without surrendering 5% flats to the Government and without following the restrictions of size of tenements. In order to deal with the situation, irregularities and violation with the specifications and conditions, subject to which the scheme has been approved, the Government has issued the Government Resolution dated 08.11.2007 which is nothing but the modified form of policy decision as contained in the Government Resolution dated 12.04.2007 to provide economical affordable housing for the poor persons. Misuse of the exemption was tried to be regularized by imposing certain conditions which cannot be said to be arbitrary. The petitioner is probably trying to impress upon the Court that the Government is totally incompetent to impose any restrictions once it has sanctioned the scheme. In fact, Section 21 of the General Clause Act ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 31 which confers a power to issue, include power to add, to amend, vary or rescind orders, any notifications, orders, rules or bye-laws and therefore if a scheme is sanctioned by the Government and it was modified from time to time, the State Government is empowered to impose certain conditions necessary for effective implementation of the scheme. The respondents strongly place reliance on the Section 21 of the General Clause Act and submit that when there is a power to frame a scheme and once it is framed, it is competent for the State Government to modify, cancel, vary or impose condition as a part of the said scheme and cancellation of the exemption would have resulted into tremendous difficulties and hardship as third party interest was already created by completing construction in utter violation of the scheme. The respondents cannot be said to be helpless in implementing the scheme which was nothing but concession to the land owners subject to terms and conditions.

35. It is most respectfully submitted that, the ULC Act was repealed on 29.11.2007 but the validity of any order granting any exemption U/s 20 Sub Clause ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 32 (1) or any action taken thereunder is saved by virtue of saving clause, scheme granted U/s 20 along with all its consequences are saved. It includes power to modify the Scheme.

36. In the circumstances, it is submitted that the grievance of the petitioner is, therefore, totally un-sustainable and therefore, the Writ Petition deserves to be dismissed.

37. We have given our anxious thoughts to the various contentions canvassed by the learned counsel for the respective parties. Perused the relevant provisions of the ULC Act, provisions of relevant Government Resolutions and the provisions of the Repealing Act. We propose to consider the preliminary objection raised by the Additional Government Pleader regarding maintainability of present Public Interest Litigation. So far as the contention of Mrs. Dangre, Additional Government Pleader that the petitioner is not propagating the public cause and is espousing the cause of developers and builders under the guise of public interest is concerned, it is well settled that whenever there is a public injury or public wrong ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 33 caused by the act of the State or public Authority, which is contrary to the Constitution or law, any member of the public acting bona fide and having sufficient interest can maintain action for redressal of such public wrong or public injury. In the instant case, the issue involved is whether the action of the State Government in issuing the impugned Government Resolutions is without jurisdiction or authority of law. The action of the State Government undoubtedly has far reaching consequences and would not only affect the scheme holders but would also affect a common man who has purchased the flat in such Scheme. We cannot forget that u/s. 20 and 21, the State Government only has power to exempt and formulate the Scheme for providing housing accommodation to the weaker section of the Society and therefore, any action of the State Government which retrospectively affects the validity of the terms and conditions of the Scheme, which has a effect of negativing grant of building permit issued by the competent Authority in respect of the said Scheme, would bound to adversely affect the interest of the common man, members of the weaker section of the Society and therefore, in our view, ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 34 the objection regarding maintainability of present Public Interest Litigation is not sustainable in law and is rejected.

38. After taking into consideration the rival contentions as well as the provisions of the relevant Act and Rules including that of Government Resolutions, the questions which fall for our consideration are as follows ig :

1. Whether the State Government under the provisions of Sections 20, 21 or any other provisions of the ULC Act has jurisdiction, competence and power to cancel, alter or revoke the building permit/permission /sanction for construction granted by the Planning Authority under the Maharashtra Regional Town Planning Act to the land holders/scheme holders as per the norms and guidelines of the Scheme, which was in existence at the time of grant of such sanction, permission or building permit ?

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2. Whether in case of breach of condition of the Scheme or non-compliance thereof by the Scheme holder, State was empowered to regularise the unauthorised construction carried out by the Scheme holder which was inconsistent with the building permit issued by the Planning Authority, in view of the power vested u/ss. 20 or 21 of the ULC Act, by modifying the terms and conditions of the Scheme which was in force at the time of grant of such building permit, at a latter point of time, by giving retrospective effect ?

3. The extent of power State has u/ss. 20, 21 of the ULC Act on account of breach of condition of the Scheme by Scheme holder?

4. Whether the Competent Authority under the ULC Act is empowered to take action in respect of construction carried out by the Scheme holder which was inconsistent with the order of sanction/building permit granted by the Planning Authority in respect of the same?

5. Which action of the State Government is saved under the Repealing Act and whether the scope of power which is saved can be widened in view of provisions of Section 21 of the General Clauses Act ?

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39. Before we answer the questions, it is expedient to consider the background in which the Parliament has enacted the ULC Act as well as the purpose for which the said Act was enacted and what were the objectives to be achieved by such enactment.

40. The Legislature evolved the ULC Act for the purposes of achieving the following objectives :

(i) to prevent concentration of urban property in the hands of a few persons and speculation and profiteering therein;
             
          



                   (ii)     to bring about socialization of
                            urban land in urban agglomerations
                            to subserve the common good by
                            ensuring       its       equitable
                            distribution;





                   (iii)    to   discourage   construction of
                            luxury    housing     leading  to
                            conspicuous consumption of scarce
                            building materials and to ensure
                            the equitable utilisation of such
                            materials; and





                   (iv)     to secure orderly urbanization.



41. The ULC Act is a central legislation enacted ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 37 by the Parliament to achieve above objectives.

However, the Parliament has no power to make laws for the State in respect of the matters relating to imposition of ceiling on vacant land in Urban agglomerations for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, except as provided in Articles 249 and 250 of the Constitution of India. Similarly, in pursuance of clause (1) of Article 52 of the Constitution, resolutions have been passed by all the houses of Legislatures of the States such as States of Andhra Pradesh, Gujarat, Haryana, Himachal Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and West Bengal, and as per these resolutions, the matters aforesaid should be regulated in those States by the laws made by the Parliament.

42. Necessity to enact the ULC Act was felt by the Parliament since the demand for imposing ceiling on the urban properties was made by some of the State Governments in view of growth in population and increasing urbanization and therefore, it was necessary for orderly development of urban areas. It ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 38 was, therefore, necessary to take measures for exercising social control over the scarce resources of urban land with a view to ensure its equitable distribution. Certain States have passed resolutions empowering the Parliament to undertake legislation in this behalf and therefore, the Urban Land (Ceiling and Regulation) Bill was introduced in the Parliament and the ULC Act came into force on 17.2.1976. The Urban Ceiling Act was enacted in order to provide imposition of ceiling on vacant land in urban agglomerations, for acquisition of excess vacant land by the State Government with powers to dispose of the same to sub- serve the common good, for payment of amount for acquisition of excess land, for granting exemption in respect of certain specific categories of vacant lands, for regulating the transfer of vacant lands within the ceiling limit, for regulating the transfer of urban or urbanizable lands with buildings for a stipulated period and for restricting plinth area for construction of future residential buildings etc. The provisions of ULC Act, therefore, empower the State Government to exercise power through different provisions of the ULC Act to achieve these objectives and neither the statements of objects and reasons nor ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 39 the preamble of the ULC Act even remotely demonstrate that the Parliament ever intended to clothe the State with power to encroach upon the provisions of any other legislation or law for the time being in force including the MRTP Act.

43. In the backdrop of the above referred aspect, it will be appropriate to consider the provisions of the ULC Act, which are relevant and connected with the issue in question. Those are namely : Sections 20 and 21 of the ULC Act and for ready reference, these provisions are re-produced below :

                 Section 20         :
          



                   Power to exempt :

                  (1)      Notwithstanding anything contained in





any of the foregoing provisions of this Chapter-

(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 of the case may require, it is necessary or expedient in the public interest so to do, that ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 40 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 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 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 conditions subject to which any exemption under clause (a) or clause (b) of sub-

section (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 accordingly.

Section 21 : Excess Vacant land not to be treated as excess in certain cases :-

(1) Notwithstanding anything contained in any of the foregoing provisions ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 41 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 of being heard, declare such land to be excess land and thereupon all the provisions of this Chapter shall apply accordingly.

44. Plain reading of provisions of Section 20(1)(a) of the Act clearly shows that the State ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 42 Government has a power to exempt a vacant land held by a person in excess of the ceiling limit from the provisions of the ULC Act, in the public interest, by evolving a Scheme, subject to such terms and conditions as it deems fit. The object and purpose of the Scheme must be to provide housing accommodation to the weaker section of the Society.

45. Similarly, ig the provisions of Section 20(1)(b) also empower the State Government to exempt vacant land in excess of ceiling limit on account of undue hardship to such person if the provisions of the ULC Act were applied, subject to such conditions, if any, as mentioned in the order of exemption.

46. Section 20 (2) empowers the State Government to withdraw the order of exemption passed by the competent Authority u/s. 20(1)(a) or (b) at any time if the State Government was satisfied that any of the conditions, subject to which any exemption under clauses (a) or (b) of sub-section (1) was not complied with by such person, after giving reasonable opportunity to such person for making a ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 43 representation against the proposed withdrawal and once the exemption was withdrawn, the provisions of chapter III of ULC Act would apply to the land which was exempted.

47. It is, therefore, evident that u/s. 20 (1), the State Government had a power to exempt vacant land in excess of the ceiling limit subject to such conditions, as mentioned in the order of exemption, from the provisions of Chapter III of the ULC Act. At the same time, in case of breach of conditions of the order of exemption, the State Government also had a power u/s. 20 (2) to withdraw such order of exemption by following procedures mentioned therein.

The power vested in the State Government u/s. 20(1)(2) was restricted to grant of exemption in respect of a land which was in excess of the ceiling limit on certain terms and conditions mentioned in the order and withdraw the same in case of breach of condition/s. The provisions of Section 20 did not either empowered the State Government nor clothe it with jurisdiction to cancel the permission/sanction/ building permit issued by the Competent Authority of the Planning Department on account of breach of the ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 44 terms and conditions of the Scheme evolved by the State Government u/s. 20 which was in existence at the time of grant of such sanction/permission.

48. It is pertinent to note that the principles of interpretation of Statute does not permit either to widen the scope of Statute or jurisdiction of the Authority vested in view of such Statute. Job of the Court is to interpret the Statute strictly on the basis of the language used in such Statute by the legislation. Therefore, though the State Government u/s. 20(2) was competent to withdraw the order of exemption issued under sub-section (1) of Section 20, it will be wholly misconceived to hold that the State Government, therefore, also had a jurisdiction and power to cancel the order of sanction/building permit issued by the Planning Authority under the MRTP Act. The provisions of Section 20 did not permit the State Government to exercise power beyond the parameters mentioned in Section 20 of the ULC Act and therefore, exercise of power by the State Government beyond the ambit and scope of provisions of Section 20 would render such action of the State Government, to that extent, ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 45 invalid in law. The power which was vested in the State Government u/s. 20 of the ULC Act was limited to the extent of grant of exemption in respect of vacant land in excess of the ceiling limit subject to certain terms and conditions and to withdraw such order of exemption in case of breach of condition/s and therefore, any action of the State Government which was beyond the scope of such power conferred on it or jurisdiction vested in it u/s. 20 would be without authority of law.

49. It is pertinent to note that the order of exemption u/s. 20 (1) is passed by the State Government or the Competent Authority under the ULC Act in view of certain contingencies mentioned in sub-section (1) of Section 20, the Legislature has also empowered the State Government to withdraw such exemption; where as the MRTP Act is an independent legislation evolved for the purpose of regulating and monitoring the construction activity. The area of operation of the MRTP Act is completely different and distinct and therefore, the power exercised by the competent Authority under the MRTP Act while granting building permit/sanction is strictly as per ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 46 the provisions of the MRTP Act.

50. Similarly, Section 21 of the ULC Act empowers the State Government to declare the vacant land in excess of ceiling limit not to be surplus in certain contingencies mentioned therein. Section 21 contemplates that where a person held any vacant land in excess of ceiling limit and such person declared within such time, in such form and in such manner as may be prescribed, before the competent Authority that such land was to be utilized for the construction of dwelling units (where plinth area of each unit does not exceed 80 sq. mtrs) for accommodation of weaker section of Society in accordance with any Scheme approved by such Authority, the State Government may by notification in the Official Gazette specify in this behalf;

then, the competent Authority may, after making such enquiry as it deems fit, declare such land not to be excess for the purposes of Chapter III of the ULC Act and could permit such person to continue to hold such land for the aforesaid purpose, subject to such terms and conditions, as may be prescribed.

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51. Similarly, the State Government is legally competent, in view of provisions of sub-section (2) of Section 21, to declare the vacant land which was not to be treated as excess in view of provisions of sub-section (1) of Section 21, to be excess land on account of breach of conditions, subject to which permission was granted under sub-section (1) by the competent Authority.

52. Power vested in the State Government u/ss. 20 and 21 to exempt the vacant land in excess of ceiling limit though was similar, however, it is required to be exercised in different contingencies as mentioned in the respective provisions, however, the object to be achieved was one and the same i.e. to provide housing accommodation to the weaker section of the Society by formulating a Scheme which would serve a public good. Power u/s. 20 was limited to grant of exemption; whereas u/s. 21, in certain cases, the State was empowered to declare vacant land not to be treated as excess. The exemption order passed u/s. 20 or declaration that the vacant land not to be treated as excess u/s. 21 was subject to such terms and conditions mentioned in the ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 48 Schemes which were evolved by the State Government. As already observed hereinabove, provisions of both these sections only empowered the State Government in case of breach of conditions of the Scheme, to withdraw the order of exemption as well as declare vacant land to be excess which was declared not to be treated as excess u/s. (1) of Section 21 of the ULC Act. Whereas provisions of neither of these Sections clothed the ig State Government with the jurisdiction or power to nullify the order/ sanction/building permit granted or issued by the Planning Authority under the MRTP Act. It is nodoubt true that the Planning Authority was required to grant building permit or sanction for construction in view of provisions of the Scheme evolved by the State Government, provided it was consistent with the provisions of the MRTP Act as well as building bye-laws. However, once the permission was granted by the Planning Authority, which is an independent Statutory Authority, it is also vested with the jurisdiction to take action in accordance with the provisions of the MRTP Act in case the terms and conditions of the building permit or the order of sanction is breached by a person in whose favour ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 49 such building permit or sanction was granted. Whereas u/s. 20 or 21 of the ULC Act, the power vested in the State Government was only to the extent of withdrawing the Exemption Certificate or declare the land in excess of ceiling limit in case of breach of conditions of the Scheme 'not in excess'. It did not include the power to revoke or cancel building permit or sanction granted by the Planning Authority under the MRTP Act.

53. The MRTP Act requires every local Authority to prepare a development plan for the area within its jurisdiction. Under a development plan, a local authority can allocate land for different uses i.e. for residential, industrial, commercial and agricultural and reserved sites required for public purposes. The development plan proposals are executed by a local Authority either by compulsory land acquisition or by preparing and executing town planning schemes for different parts of the town, so that when all the proposals are carried out, it would result in harmonious and well planned development of the town. In other words, the object of the MRTP Act is to make provisions and planning ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 50 for the development and use of land, to make better provision for preparation of development plan of land, to provide for creation of new towns etc. The MRTP Act is an independent legislation and though the job of Planning/Local Authority is to prepare a development plan for the area within its jurisdiction; however, the power exercised by the Planning Authority under the MRTP Act is completely distinct and different than the one exercised by the State Government u/s. 20 or 21 of the ULC Act and therefore, the order passed by the Planning Authority could not be either altered, modified or revoked by the State Government by exercising power u/ss. 20 or 21 of the ULC Act for want of jurisdiction.

54. In the present petition, grievance of the petitioner is in respect of the Government Resolutions dt. 12.4.2007 as well as 8.11.2007. It was contended by the learned counsel for the petitioner that, by the Government Resolution dt.24.4.2000, the State has permitted to lay a lay- out in the entire Scheme for developing 100 sq. mtrs. plot and has also permitted to construct ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 51 apartments/tenements having its area ad-measuring 40 sq. mt. by amalgamating proposed 100 sq. mtrs. plot in a Scheme so as to increase housing stock. It was further contended that, vide Government Resolution dt. 19.9.2003, the State Government has permitted to construct 80 sq. metrs. (built up area) apartments/tenements. Similarly, vide Government Resolution dt. 14.7.2004, the State Government has permitted the Scheme holders to buy back the land surrendered to the Government free of costs by paying prevalent market price as per the ready reckoner. It was submitted by the counsel for the petitioner that, vide impugned Government Resolution dt. 12.4.2007, the Scheme evolved by the Government Resolution dt. 22.8.1986, was made applicable to the Schemes wherein multi-storied buildings was constructed or the construction was in progress, by amalgamating more than 2/3rd plots in the sanctioned Special Plot Schemes. In the Government Resolution dt. 12.4.2007, it is stipulated that if the area of tenements/flats which were already constructed or were under construction in the sanctioned Special Plot Scheme was more than 80 sq. mtrs, in that case price of the area exceeding 80 sq. mts. shall be ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 52 recovered as per existing market rate from the Scheme holder/developer. Similarly, condition of surrendering to the Government 5 % land suitable for construction from the housing Scheme permitted on the land under Special Plot Scheme was also made binding on the Scheme holder. However, in case 5 % land was not available for surrendering to the Government, then, in that case, price of such land/flat, as per existing market rate, was to be recovered from the Scheme holder or developer.

      55.          So      far        as        the     issue       in        question            is
      concerned,          the        relevant         clause      of      the      Government
             

Resolution dt. 12.4.2007, wherein it is stipulated that permission granted for amalgamation of more than 1/3rd plots in sanctioning Special Plot Scheme should be cancelled immediately by the concerned competent Authority where construction was not started yet on the plots and also cancel the permission granted for amalgamation of Schemes and to convey this fact to the concerned Municipal Corporations/Municipal Council. It is also mentioned in the Government Resolution dt. 12.4.2004 that for non-compliance of provisions of this Government ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 53 Resolution, the concerned Competent Authority shall be held solely responsible. It was submitted by counsel for the petitioner that when the Planning Authority granted building permit/sanction for construction on the land where amalgamation of more than 1/3rd plots in the sanctioned Special Plot Scheme was permissible as per the then existing terms and conditions of the Scheme/Government Resolution, which was holding the field, therefore, the sanction granted by the Planning Authority was consistent with the provisions of the terms and conditions of the Scheme which was in force on the date sanction was granted by the Planning Authority.

It is contended that the State Government, did not have power to cancel permission granted earlier for amalgamation of more than 1/3rd plots in a Special Plot Scheme retrospectively in view of sanction/building permit granted by Planning Authority for construction in favour of scheme holder on the basis thereof by passing the Government Resolution dt. 12.4.2007. Similarly, the State Government also did not have power to direct the Municipal Corporation to cancel the permission granted for amalgamation of Schemes for want of ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 54 jurisdiction or power.

56. Similarly, vide Government Resolution dt.8.11.2007, whereby permission for construction was given by the Planning Authority before 12.4.2007 regarding construction of multi-storied building by amalgamation of 1/3rd plots in the Special Plot Scheme and construction was completed or under progress, in such Scheme, the State Government has made applicable the following terms and conditions in order to regularise the irregularities committed by the Scheme holders. Those are mentioned in the clauses (1), (2) and (3) of the Government Resolutions.

1. In cases where permission for construction has been given by the Planning Authority before 12.4.2007 regarding constructing multi-storied buildings by consolidating more than one schemes in Special Plot Scheme and in view of that permission where construction has been done or under progress, in all such cases, the following terms and conditions are being made applicable to the scheme holders with a view to regularize the irregularities :-

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A) It is binding on the scheme holder to restore to the Government at pre-determined rate 5 % constructed area of the area for which maps of multi-storied buildings have been sanctioned by consolidating the plots/schemes. In exceptional circumstances, in case it is impossible to restore to the Government 5 %. Constructed area from such scheme, then in that case proposal for accepting area due to the Government from the project of the same grade undergoing in that area or accepting price of said 5 % constructed area at the existing market rate as ig per the ready reckoner will be taken into consideration.

B) The apartments limited to 80 sq. mt. area will be admissible on the area in the Scheme. In case construction of more than this area is proposed/completed then in that case it is binding on the scheme holder to pay to the Government an amount at the existing market rate as per Ready reckoner for the area exceeding the admissible area.

C) The landholder is not allowed to demand back area to be restored from the Special Plot Scheme which was surrendered to the Govt., free of cost.

Clause (2) of the said Government Resolution reads thus :

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2) In case where the planning Authority has not issued certificate for starting construction of multi-

storied buildings on the plots in Special Plot Scheme and for their consolidation before 12.4.2007, the following decision has been taken in such cases :-

A) The permission granted for consolidation of more than one Scheme or consolidation of more than 1/3 of plots in the scheme has been cancelled and it is binding on the scheme holder to implement the scheme in original nature.

B) However, in case scheme holder demands for issuing permission for constructing multi-storied building by consolidating the plots, then in that case such permission can be granted subject to the condition of restoring 5 % constructed area to the Govt at the pre-determined rate out of such constructed area while keeping area of apartment in scheme limited to 80 sq. mt.

C) However, the scheme holder is not allowed to demand back area to be restored to the Govt. from the Special Plot Scheme.

Clause (3) of the said Government Resolution reads thus :

3) The concerned Municipal Corporations / Municipal Councils are hereby directed that they shall not sanction maps of multi-storied ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 57 building on the land under sanctioned Special Plot Scheme without permission under Urban Land Ceiling Act.

57. In the backdrop of above, the State Government undoubtedly was empowered to evolve a Scheme u/s. 20 and exempt the vacant land which was in excess of ceiling limit subject to such terms and conditions as it deems fit. The State Government, in fact, formulated such schemes from time to time either by modifying the terms and conditions of the earlier scheme or came up with the new scheme. The State Government was perfectly justified in doing so and also had jurisdiction to do so as per the provisions of Sections 20 and 21 of the Act.

However, in case of the building permit issued by the Planning Authority under the MRTP Act for construction in favour of land/Scheme holder, in view of the terms and conditions of the Scheme, which was evolved by the State Government and was in force at the time of grant of such building permit, however, the State Government did not have power to cancel the building permit or sanction granted by the Planning Authority nor the State Government had a power to alter the terms and conditions of the ::: Downloaded on - 09/06/2013 13:41:54 ::: W.P.No.5684 of 2007 58 Scheme which was in force on the date of grant of building permit retrospectively, which had a effect of rendering such building permit granted by Planning Authority invalid in law. When the provisions of Sections 20 and 21 did not permit the State Government, even in case of breach of condition of Scheme by the Scheme holder/land holder, to cancel or revoke the building permit issued by the Planning Authority under the MRTP Act, the State Government cannot indirectly do the same by modifying the terms and conditions of the Scheme retrospectively which results in nullifying the force of the order of the Planning Authority.

58. Sub-clause (a) of Clause (2) of the Government Resolution dt. 8.11.2007 stipulates that where permission was granted by the Planning Authority for construction of multi-storied building in the Special Plot Scheme and the construction activity has not been commenced prior to 12.4.2007, all such permissions/sanctions given by the Planning Authority stand cancelled and it is binding on the scheme holder to implement the Scheme in its original nature. We once again reiterate that, the ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 59 State Government was empowered, u/s. 20 and 21 of the ULC Act, to formulate the Schemes and impose conditions as it deems fit, and in case of breach of conditions, power of withdrawal of Exemption Certificate was also vested in the State Government.

However, there is absolute no power vested in the State Government either u/s. 20, 21 or any other provisions of the ULC Act to nullify or cancel the order passed or building ig permit issued by the Planning Authority under the MRTP Act. Breach of condition by the land holder or holder of the scheme did not clothe the State Government with the jurisdiction to cancel or revoke the order of the Planning Authority, though the State Government could withdraw the exemption granted u/s. 20 or take such action against the scheme holder as provided u/s. 21 of the ULC Act.

59. Similarly, so far as other clauses of both these impugned Government Resolutions are concerned, which were evolved for the purpose of regularising the irregularity committed by the Scheme/land holder, the State Government was also not empowered either under the provisions of Section 20 or 21 or ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 60 under any other provisions of the Act, in case of construction carried out by the land/scheme holder was inconsistent with the building permit, to initiate action, if any and there was also no power vested in the State Government either u/s. 20 or 21 to regularise the irregularity committed by the land/scheme holder with regard to the terms and conditions of the building permit or order of sanction issued by the Planning Authority.

ig It is well settled that in case of any construction which was inconsistent with the building permit or building bye-laws, it is the competent Authority under the provisions of the MRTP Act alone who is competent to initiate action under the provisions of the said Act and the State Government cannot assume such power which was not provided under the provisions of the ULC Act, except withdrawal of exemption granted u/s. 20 of the Act. If the State Government is permitted to regularise the illegal construction carried out by the land or Scheme holder which is inconsistent with the building permit or sanction order issued by the Planning Authority, such action of the State Government will not only be without the authority of law, but the ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 61 same also shall render the provisions of MRTP Act negatory and therefore, the impugned Government Resolutions, in our view, cannot be sustained in law.

60. It is not in dispute that, the Scheme holder/land holder, at the time of submitting proposal under the Special Plot Scheme for grant of exemption, had to surrender some percentage of land free of costs to the Government and the Government could dispose of the same in accordance with the provisions of the ULC Act. So far as clause in the Government Resolution dt. 8.11.2007 pertaining to this aspect is concerned, it is brought to the notice of this Court that the land holder is ready and willing to buy back the said land at the prevailing market price if the Government is ready and willing to do so. It was contended that the State Government in many cases disposed of the said land at a price which was hopelessly less than the market price of the land. It was submitted that the land holder being a owner of the land and was required to surrender some portion of the land under the Scheme to the State Government and the State ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 62 Government was allotting the said land to the people of its choice,in that case, if the preference is given to the land holder to buy back the said land at the prevalent market price, it will generate huge revenue for the Government. It was further brought to the notice of this Court that because of the irregularities committed by the State Government in allotment of land in excess of ceiling limit, which was either surrendered to the State Government under the Special Plot Scheme or declared surplus under the ULC Act, the High Court has constituted One Man Commission i.e. "Justice Batta Commission" to inquire into the irregularities alleged to have been committed by the State Government in allotment of all these vacant lands. It is further contended that the report of "Justice Batta Commission" shows that there are numerous irregularities committed by the State Government in allotment of these lands, which has resulted in causing great revenue loss to the public exchequer; whereas if the preference is given to the land holder to buy back the land at the market rate, it will generate revenue for the State Government and public exchequer also will be benefited. This policy was in existence prior to ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 63 issuance of impugned Government Resolutions dt 14.7.2004. However, vide Resolution dt. 8.11.2007 the Government has changed this policy and as per the clause (1)(c) of the Government Resolution, the land holder is not allowed to demand back the said land which was surrendered to the State Government free of cost under the Special Plot Scheme. The change in policy of buy back in fact has resulted in giving unfettered powers to the State Government in allotment of such lands to the persons of their choice which has also resulted in arbitrariness and misuse of power. Similarly, the public exchequer is also deprived of revenue which was generated in view of old policy of buy back. Hence, same is not in the interest of either State Government or public at large.

61. It is nodoubt true that it is the domain of the State Government to formulate terms and conditions of the Scheme evolved under the provisions of the ULC Act and therefore, the policy of permitting the land holder to buy back the land at the rate fixed by the State Government was for generating the revenue for the State Government as ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 64 well as remove arbitrariness in allotment of land by Government was in the public interest.

62. Mrs. B. H. Dangre, Additional Government Pleader, during the course of arguments, has submitted that there is no reason why the land holder should not be permitted to buy back the said land at the prevalent market price by giving preference above other options the State Government has in allotment of such land. She has also not disputed that the policy of giving choice to buy back the land at market price will generate lot of revenue for the State which will undoubtedly benefit the public exchequer. We are, therefore, of the view that the clause in Government Resolution dt. 8.11.2007, which has dropped the policy of buy back is not in the interest of State and would result in arbitrariness in the allotment procedure by the Government.

63. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force on 18th March, 1999. Section 3 of the said Act deals with the provisions of the ULC Act which are saved and reads thus :

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"Saving- (1) The repeal of the principal Act shall not affect -

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary;

( c ) any payment made to the State Government as a condition for granting exemption under sub-

section (1) of Section 20.

(2) Where -

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

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64. In the case in hand, we are concerned with Sub-clause (b) of Section (3) of Repeal Act which contemplates that repeal of the principal Act shall not affect validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, not withstanding any judgment of any Court to the counter. It is, therefore, evident that validity of order granting exemption under sub-

section (1) of Section 20 of the ULC Act though passed prior to Repeal Act came into force, would continue in view of the said saving clause. Similarly, any action taken by the State Government under sub-section (2) of Section 20 prior to the Repeal Act came into force is also continued to be valid even after the Repeal Act came into force. Perusal of provisions of Section 3 (1)(b) makes it evident that repeal of Principal Act shall not affect validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder. Hence, to grant exemption in respect of land which was in excess of the ceiling limit as well as action, if any taken by the State Government thereunder in view of Section 20 (1) is ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 67 saved. Similarly, any action taken by the State Government against the scheme holder under sub-

clause (2) of Section 20 prior to coming into force of the Repeal Act, is also saved. However, the power of the State Government to alter, change or modify the terms and conditions of any of the Schemes formulated prior to coming into force of the Repeal Act and on the basis thereof, sanction was granted by the Planning Authority is not saved by the saving clause.

65. So far as the provisions of Section 21 of the General Clauses Act is concerned, it is of a general application. It embodies a rule of construction which should be applied if the construction cannot be arrived at or determined with reference to the context or subject matter of particular Statute. The rule of construction embodied in Section 21 should be applied only if the construction cannot be arrived at or determined with reference to the context or subject matter of the particular Statute. The nature and extent of application of Section 21 is required to be considered in view of relevant Statute which confers ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 68 power to issue such order/notification etc. We have already observed that the State Government had a power to grant exemption u/s. 20 subject to such terms and conditions as it deems fit. The State Government also had a power to evolve a scheme by formulating such terms and conditions as it deems fit. However, once the Planning Authority grants building permit, sanction for construction in favour of land holder or scheme holder in view of the terms and conditions stipulated in the scheme existed on the date on which building permit was granted under the provisions of the MRTP Act, the State Government ceased to have power either to cancel the said building permit issued by the Planning Authority and could not change the terms and conditions of the said Scheme which had a effect of rendering such building permit or order of sanction negatory in view of the saving clause. Hence, considering the saving clause of the Repeal Act, the provisions of Section 21 of the General Clauses Act, in our view, is not of any help to the State.

66. It is not in dispute that the validity of the Government Resolution dt. 31.7.2006 issued by ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 69 the Government was challenged by filing Writ Petition No.4966 of 2006 and this Court, after hearing the counsel for the petitioner and the State, passed an interim order dt. 4.10.2006 whereby parties were directed to maintain status-quo. On 7.11.2006, this Court granted ad-interim relief in terms of prayer clause (II) of the said petition during the pendency of the petition. Similarly, vide order dt. 8.12.2006, the Authorities were directed by this Court not to pass orders on the application made under the Scheme until further orders. The State Government, without filing any application for modification or revocation of this order, issued Government Resolution dt. 12.4.2007 as well as Government Resolution dt. 8.11.2006 and thereby gave a 'go-bye' to these interim orders passed by this Court, which shows that the State Government was in a hurry to issue Government Resolution dt. 12.4.2007 as well as Government Resolution dt. 8.11.2007, before the Repeal Act came into force with effect from 29.11.2007. The entire conduct of the State Government creates doubt about its bona-fides. However, we have already recorded our findings that the State Government was not clothed with ::: Downloaded on - 09/06/2013 13:41:55 ::: W.P.No.5684 of 2007 70 jurisdiction, competence or power to issue these Government Resolutions in view of the provisions of either Section 20 or Section 21 of the ULC Act in order to alter, modify or cancel the order of sanction/grant of permit, issued by Planning Authority, nor the State has competence in view of the provisions of Section 20 or Section 21 of the ULC Act to alter or modify the terms and conditions of the Scheme, which was in existence, on the basis of which the building permits were issued by the Planning Authorities by giving retrospective effect, which would have an effect of rendering order passed by Planning Authority null and void.

67. For the reasons stated hereinabove, we answer the questions accordingly :

FINDINGS AS TO QUESTION NO.1 :

Question is answered in the negative.

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FINDINGS AS TO QUESTION NO.2 :

Question is answered in the negative.

FINDINGS AS TO QUESTION NO.3 :

Power of the State Government u/s. 20 in case of breach of condition of the order of exemption is limited to withdraw exemption order only and so far as Section 21 is concerned, declare the land which is not to be treated as excess land in view of sub-section (1) in case of breach of condition, State can declare such land to be excess in view of sub-section (2) of Section 21. Thereupon, the provisions of Chapter III will apply to the said land.

FINDINGS AS TO QUESTION NO.4 :

Question is answered in the negative.

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FINDINGS AS TO QUESTION NO.5 :

Question is answered in the negative.

For the reasons stated hereinabove, the Government Resolutions dated 12.4.2007 and 8.11.2007 are hereby quashed and set aside. Rule is made absolute in the above terms. No order as to costs.

                                      JUDGE                 JUDGE


     jaiswal
             
          






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