Paragraph numbers below are the court’s original numbering, recovered from the source text.
6. By letter dated 18.10.2005, Respondent no.3 informed D appellant that since the appellant has failed to surrender in all 1109.31 sq.mt. built up area to the Government in the form of 28 fiats from the subject scheme, a criminal case is being filed against the appellant with the Versova Police Station. An appeal preferred by the appellant against this was dismissed E by Respondent No.2 by its order dated 25.7.2006, stating inter alia that the Competent Authority is very much in his powers to hear and act on matters regarding Section 20 and is in no way exercising any authority outside his jurisdiction or outside the letter and spirit of the Act.
7. Thereafter, the appellant, challenged the order passed by the respondents by way of writ petition in the Bombay High Court. The Division Bench of the High Court rejected the appellant's writ petition holding that the present case is not G covered by the decision in Shantistar Builders (supra) as the same does not have retrospective effect and that the document dated 18.10.2005 was not an order but a letter/intimation by the competent authority to the appellant that the conditions of the exemption order were not complied with. Hence, this appeal H by special leave under Article 136 of the Constitution of India NARGIS JAL HARADHVALA v. STATE OF MAHARASHTRA [M.Y. EQBAL, J.] is preferred by the appellant raising issue what percentage (5%, 10% or higher) of area in any scheme is to be surrendered under the Urban Land (Ceiling and Regulation) Act, 1976.
8. Mr. C.A. Sundaram, learned senior counsel appearing for the appellant in course of argument fairly submitted that since the decision rendered by this Court in Shantistar Builders's case was prospective in its operation, the same will not apply in the facts of the present case. However, admittedly, the respondents issued a corrigendum dated 23.11.1990 amending the area to be surrendered to the Government C nominee and finally prescribed it as 20% of the floor space of the first 2000 sq.mt. of the net permissible FSI of the land exempted. Learned counsel submitted that by another circular dated 22.10.1992 issued under the signature of Joint Secretary to the Government, the quota for the Government nominee was reduced from 20% to 10%. According to the learned counsel the appellant already handed over 10% of the total accommodation. Mr. Sundaram then submitted that at the initial stage after completion of construction 30% of the permissible floor space was offered for sale to the Government nominee, but it was neither acknowledged nor accepted by the Government, hence the respondent is stopped from claiming the same on the principle of waiver. Learned counsel drawn our attention to the relevant document and submitted that the flats which were surrendered by the appellant have been sold by the respondent to VIPs and not to the weaker section of the society. Learned counsel lastly contended that on the basis of subsequent corrigendum dated 23.11.1990 read with the circular dated 22.10.1992 the appellant is not liable to surrender more than 10% of the quota as fixed in the circular.
9. Per contra, Mr. Rahul Chitnis, learned counsel appearing for the State, submitted that in support of the above referred corrigendum and the circular, the appellant executed indemnity bond on 12.10.1998 and agreed to give 30% of the (2015) 1 S.C.R. permissible floor space to the Government nominee. The appellant further agreed to surrender the remaining tenements within five years from the date of execution of indemnity bond. Learned counsel submitted that as against 30% (28 flats) and 20% (18 flats), the appellant has given only seven flats to the respondent till date.
10. We have considered the entire facts of the case and the argument advanced by the learned counsel appearing for the parties.
11. Indisputably exemption under Section 20 of the Act was granted on 17.8.1987 with the condition to surrender 30% of the permissible floor space to the allottees nominated by the Government. It was clarified that the percentage will be prescribed by the Government as per the extent of the land to o be exempted. It is also not in dispute that subsequent corrigendum was issued by the Government on 23.11.1990 wherein the extent of 30% was agreed as 20% of the floor space of the first 2,000 sq.mt. of the net permissible FSI of the land exempted under the order and 30% of the 2364.37 sq. mt. E balance permissible area. However, we do not find any authenticity in the circular dated 22.10.1992, copy of which has been produced before us in support of the contentions made by the appellant that the 20% quota fixed by the corrigendum was further reduced to 10% of the floor space. Further, F admittedly, the appellant executed an indemnity bond on 12.10.1998 wherein it was agreed that the balance built up area would be surrendered to the Government within a period of five years i.e. up to 2003.
12. In the background of all these facts, in our considered G opinion, the appellant is bound to surrender to the Government a total 20% of the permissible floor space in the light of the corrigendum dated 23.11.1990 issued by the Government. As noticed above, till date, the appellant has given only seven flats to the allottees nominated by the Government. Calculating 20% NARGIS JAL HARADHVALA v. STATE OF MAHARASHTRA [M .Y. EQBAL, J .] of the floor space, the appellant is bound to sell 11 more flats to the persons that may be nominated by the Government.
13. We, therefore, allow this appeal and set aside the order passed by the High Court. Consequently, we modify the order dated 25th July, 2006, passed by the Additional Commissioner, Konkan Division, Mumbai and direct the appellant to sell eleven more flats to the allottees, who shall be nominated by the Government. Taking note of the fact that seven flats so surrendered by the appellant have been sold to the Government nominee in gross violation of the Act and the Scheme framed by the Government, we do not wish to issue any direction in this matter. However, we make ft clear that the remaining eleven flats that shall .be handed over by the appellant to the Government shall be sold to the Government nominees, who must belong to the weaiser section of the society. We also direct the appellant to hanctOver and sell remaining eleven flats to the Government within four months from today. Nidhi Jain Appeal allowed