THE STATE OF MAHARASHTRA AND OTHERS VERSUS MR. ASPI CHINOY AND ANOTHER

THE STATE OF MAHARASHTRA AND OTHERS VERSUS MR. ASPI CHINOY AND ANOTHER 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5809 OF 2011
THE STATE OF MAHARASHTRA
AND OTHERS ...APPELLANT(S)
VERSUS
MR. ASPI CHINOY AND ANOTHER ...RESPONDENT(S)
WITH
CIVIL APPEAL NOS. OF 2022
(Arising out of SLP(C) Nos. 26906-26911 of 2011)
J U D G M E N T
B.R. GAVAI, J.
1. Delay condoned and leave granted in SLP(C) Nos.
26906-26911 of 2011.
2. By way of the present appeals, the State has assailed
the judgment and order dated 29th September 2009 passed
by the Division Bench of the High Court of Judicature at
Bombay in Writ Petition No. 713 of 2001, thereby allowing
the writ petition filed by the respondents.
2
3. The respondents-original writ petitioners had filed
the writ petition challenging the letter dated 27th June 2000
addressed by the Collector to the Sub-Registrar, Bombay
City, Old Custom House. By the said letter, the Collector
had directed the Sub-Registrar not to register any
transaction in respect of transfer of flats in the buildings
situated in B.B.R. Block Nos. 3 and 5, Nariman Point and
Cuffe Parade, Bombay without obtaining a No Objection
Certificate from the Collector.
4. In the year 1971, the State Government had invited
offers for the lease of Plot Nos.93, 94, 99, 100 and 121 from
Block V Back Bay Reclamation Estate. In response to the
said notice, one M/s. Aesthetic Builders Pvt. Ltd. (hereinafter
referred to as the “said builder”) had made a bid for Plot No.
121 (Old) or 119 (New). The bid was on the basis that the
said builder would construct and sell flats on ownership
basis. The purchasers of the flats would thereafter form a
Co-operative Society, in which Society the rights of the
Company would be transferred. The bid of the said builder
was accepted and the State Government granted a licence to
the said builder to enter upon the plot and construct a
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building in accordance with the plans and specifications
sanctioned by the Municipal Corporation of Greater Bombay.
5. On the said plot, a twenty-two storey building
namely Jolly Maker Apartments No.3 was constructed by the
Company and the flats were sold to various parties on
ownership basis. Occupation certificate in respect of the said
building was issued on 12th December 1975. The subject
matter of the present dispute is Plot No. 211, which was sold
to one Mr. A. Madhavan by an agreement dated 22nd
November 1972. After completion of the building in the year
1977, the purchasers of the flats formed a Co-operative
Society called Varuna Premises Co-operative Society Ltd.,
which was duly registered under the Maharashtra Cooperative Societies Act, 1960. By an agreement dated 23rd
May 1978, the said Mr. A. Madhavan sold his rights in the
said flat to one Mrs. Reshmidevi Agarwal. On 16th December
2000, respondent No.1 entered into an agreement with Mrs.
Reshmidevi Agarwal to purchase rights to occupy Flat No.
211 as also five shares in the Society. When respondent
No.1 approached the Sub-Registrar Office for registration, he
was declined the registration and directed to secure a No
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Objection Certificate from the Collector. In the above
backdrop, respondents approached the High Court by way of
the writ petition.
6. The claim of the respondents was resisted by the
State. It was the contention of the State that in view of
Government Resolution dated 12th May 1983 (for short “1983
Resolution”) and Government Resolution dated 9th July 1999
(for short “1999 Resolution”), the State was entitled to claim
premium as a condition for grant of permission for transfer of
the flats. The State had pressed into service Clauses 15 and
16 of the Memo of Terms and Conditions for the Lease of Plot
from Block V Back Bay Reclamation (hereinafter referred to
as the “said terms and conditions”). The High Court did not
find favour with the contentions raised by the State and
allowed the writ petition. Being aggrieved thereby, the State
has approached this Court by way of the present appeal.
7. We have heard Shri Shekhar Naphade, learned
Senior Counsel appearing on behalf of the State and Shri
C.U. Singh, learned Senior Counsel appearing on behalf of
the respondents-writ petitioners.
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8. Shri Naphade submitted that the impugned
judgment and order of the High Court is not sustainable on
several grounds. The learned Senior Counsel submitted that,
the High Court has grossly erred in coming to a conclusion
that the Society concerned would fall under Class 5 as
earmarked in Rule 10 (1) of the Maharashtra Land Revenue
(Disposal of Government Lands) Rules, 1971 (hereinafter
referred to as the “said Rules”). He further submitted that
the High Court has failed to notice Class 9 under which the
Society in question would actually fall. He further contended
that the High Court has also erred in going into the question
as to whether the allotment of land was on a concessional
rate or not. He submitted that the said fact is not at all
relevant for determining the issue. He further submitted that
the High Court has erred in relying on the 1983 Resolution.
He submitted that the 1983 Resolution was superseded by
the 1999 Resolution and is applied with full vigour. The
learned Senior Counsel urged that, though the land was
allotted in the year 1972, the same was subject to the
execution of Agreement to Lease. He further urged that the
said builder has subsequently agreed, vide communication
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dated 5th July 1972, to abide by all the terms and conditions
of the lease. He submitted that this fact has not been taken
into consideration by the High Court.
9. Shri Naphade submitted that Section 40 of the
Maharashtra Land Revenue Code, 1966 (hereinafter referred
to as the “Code”) empowers the State Government to dispose
of any land on such terms and conditions as it deems fit. He
submitted that, since the 1999 Resolution specifically
provides the terms and conditions on which the land could
be disposed of, the judgment of the High Court which failed
to take into consideration the said aspect, is not sustainable.
He further contended that the High Court has erred in
relying on the judgment of this Court in the case of Anita
Enterprises and Another v. Belfer Cooperative Housing
Society Ltd. and Others1 which is not at all applicable to
the present case. He further submitted that the High Court
has erred in relying on the Bye-laws of the Society. He
submitted that in a conflict between the Bye-Laws of the
Society and the said Rules, the Rules will prevail.

1
(2008) 1 SCC 285
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10. Shri Singh submitted that the High Court has
considered all the relevant aspects and as such, no
interference is warranted with the well-reasoned judgment
and order of the High Court.
11. The undisputed facts in the present case are as
under:
The allotment of plot in question was made to the
said builder in the year 1972. As per the said allotment, the
plot was to be leased for a period of 99 years, renewable for
another 99 years on the same terms, but on a revised ground
rent. The said terms and conditions would reveal that, the
licensee was required to construct a building on the said plot
costing not less than Rs.10 lakhs. The use of the building
was for private residence only. As per Clause 13 of the said
terms and conditions, the licensee was to be put in
possession of the plot on his executing the Agreement to
Lease. Undisputedly, after the said allotment in the year
1972, the builder was put in possession of the plot and he
constructed a building thereon. The flats were sold to various
parties. An occupation certificate in respect of the said
building was also issued on 12th December 1975. In the year
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1977, the flat purchasers formed a Co-operative Society
called Varuna Premises Co-operative Society Ltd.
12. It could thus be seen that after the land was allotted
to the said builder on lease basis in the year 1972, the 1983
Resolution came into effect. The 1983 Resolution provided
for grant of land to co-operative societies of different
categories on concessional rates. After the 1983 Resolution,
the Government noticing that, with the passage of time and
the policy being nearly 15-16 years old, it was necessary to
modify and revise the said policy. It will be relevant to refer to
the Preamble of the 1999 Resolution:
“Government Lands are sanctioned in favour
Co-operatives Housing Societies under the
provisions of Section 40 of the Maharashtra
Land Revenue Code 1966 and the
Maharashtra Land Revenue (Allotment of
Government's Land) Rules 1971. From time to
time the Government has laid down policies
supplementary to the said provisions by the
Government orders mentioned above. Some of
the terms and conditions of those orders have
become out dated and it has become inevitable
to make modifications/amendments therein.
As the present policy is nearly 15-16 years old,
a proposal to modify/revise the same was
under consideration of the Government. In
that behalf the Government has now decided
that in suppression of the above mentioned
orders, the revised policy as under should be
adopted in respect of sanctioning lands to Co-
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operative Housing Societies in Maharashtra
State.”
13. It could thus be seen that the 1999 Resolution is in
continuation of the 1983 Resolution, which is applicable to
the co-operative societies to whom the government lands are
sanctioned on concessional rates.
14. It is further to be noted that though Section 40 of
the Code saves the power of the Government with respect to
disposal of lands, Section 295 of the Code specifically deals
with disposal of lands and foreshore. It is not in dispute that
the land in question is a reclaimed land and therefore, is
covered under Section 295 of the Code. It is also not in
dispute that though in accordance with 1983 Resolution and
1999 Resolution, the State Government is empowered to allot
land to the co-operative societies of different categories on
concessional rates, the land in question has been allotted to
the builder who had participated in the bid in response to a
public notice. The land was allotted to the said builder after
he was successful in the bidding process. As per the said
terms and conditions, which specifically deal with lease of
plots from Block V Back Bay Reclamation, the said builder
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was required to construct the building on the said land
costing not less than Rs.10 lakhs and to sell the same for the
purpose of private residence. It is after the said builder sold
the flats to the individual buyers, they formed a Co-operative
Society in the year 1977 in which Society the ownership of
the land came to be transferred by the said builder. It could
thus be seen that, the present case is not a case where the
land is allotted to a Co-operative Society by the Government.
The land was leased out to the builder, who was the
successful bidder and after the ownership of flats was
transferred to the private individuals, a Society of the flat
owners was formed.
15. In that view of the matter, in the peculiar facts and
circumstances of the case, we do not find it necessary to
consider the submissions advanced by Shri Naphade. As
already discussed hereinabove, we find that in the facts of
the present case, since the land was not allotted to a society
but to a builder on lease, who has constructed flats for
private individuals, who have subsequently formed a Cooperative Society, the 1983 Resolution and 1999 Resolution
would not be applicable to the members of such a society.
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We are therefore not inclined to interfere in the present
appeals.
16. In the result, the appeals are dismissed. The interim
stay of the direction for refund of the amount granted by this
Court shall stand vacated.
17. Pending application(s), if any, shall stand disposed of
in the above terms. No order as to costs.
…..….......................J.
[B.R. GAVAI]
….….......................J.
[B.V. NAGARATHNA]
NEW DELHI;
SEPTEMBER 30, 2022.

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