IMPORTANT POINT
In order to avail exemption conditions prescribed therfor have to be complied with.

JUDGMENT

M.Y. Eqbal, J.:

This appeal by special leave is directed against judgment and order dated 16.8.2007 of the High Court of Judicature at Bombay whereby Division Bench of the High Court dismissed the writ petition preferred by the appellant challenging orders issued by the respondents.

2. The factual matrix of the case is that the appellant applied for an exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short, ‘the Act’) in respect of land bearing CTS No.1310 of village Versova in Andheri Taluka of Mumbai Suburban District, measuring 5892.5 sq.mt. (in short, “suit property”), out of which exemption in respect of 3491.5 sq.mt. was granted by Respondent No.1 in August, 1987. The balance 2401 sq.mt. did not need exemption being reserved for road and garden and was duly handed over to the Municipal Corporation by the appellant. 500 sq.mt. was “retainable land” that the landowner is entitled to retain. Exemption order tentatively specified 30% of the permissible floor space of the exempted land to be sold to Government Nominees. It was clarified that the percentage will be prescribed by the Government as per the extent of the land to be exempted.

3. On 31.1.1990, this Court in the case of Shantistar Builders vs. N.K. Toitame, (1990) 1 SCC 520, dealing with the issue of constructions over exempted lands covered under Section 20 of the Act laid down that the number of the government nominees should not exceed 5% of the total accommodation available in any scheme. The case of the appellant is that after the aforesaid decision, on 23.11.1990, by a subsequent corrigendum, Respondent No.1 amended the area to be surrendered to the Government nominees and finally prescribed it as 20% of the floor space of the first 2000 sq.mt. of the net permissible F.S.I. of the land exempted and 30% of the balance sq.mt. permissible.

4. The appellant’s further case is that being unaware of aforesaid decision of this Court, appellant initially offered 26 flats (1036.39 sq.mt.) by her letters and subsequent reminders in the years 1990 and 1991, but the respondents neither took up the flats offered nor did they respond in any way to appellant’s letters. However, respondents moved an application for modification of the judgment in the case of Shantistar Builders (supra) and maintained the quota of flats for Government nominees at 10% by its Resolution dated 22.10.1992. Accordingly, appellant requested the respondents to take over 10% of the net permissible area of the exempted land viz. 296.73 sq.mt and offered 7 flats (having area of 303.73 sq.mt.), in reply to which, respondents acknowledged that only 10% of the area needed to be surrendered for the Government nominees but claimed that this 10% worked out to be 414.92 sq.mt. and not 296.73 sq.mt. However, in May, 1993, respondents took up only 4 of the 7 flats offered by the appellant, whose area was 5.86% of the net permissible FSI of the exempted land. Upon being asked by the appellant for the issuance of the certificate to the effect that required number of flats have been surrendered to the Government, Respondent no.3 asked the appellant to hand over 21 flats in addition to the 7 flats already offered. On this, appellant pointed out that only 5% flats could be claimed in view of Apex Court’s judgment in Shantistar Builders (supra) and the same had already been handed over. On 17.11.1995, this Court rejected the Government request to allow 10% quota for Government nominees and restricted the quota to 5% only.

5. The appellant, therefore, reiterated in her subsequent letters to the respondent that only 5% flats could be claimed in view of aforesaid judgment of the Apex Court, and on 30.9.1998, three more flats were handed over to secure the Occupation Certificates that were being withheld by the respondents. It is the case of the appellant that several representations were made to the Government to limit the area to be surrendered to the Government as per aforesai