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SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, NAVIN SINHA, JJ.
Shridhar C. Shetty (deceased) Thr. Lrs. - Appellant(s)
Versus
The Additional Collector And Competent Authority And Ors. - Respondent(s)
Civil Appeal No(s).2019 of 2010
Decided on : 02-09-2020
Urban Land (Ceiling and Regulation) Act, 1976 – Sections 2(d), 20, 21 and 38(4) – Demand – Withdrawal of exemption – In the nature of composite exemption granted, failure of authorities to cancel or withdraw exemption for breach by transfer of development rights to respondents or construction on one plot only and consequent claim based on “No Objection Certificate” issued for purposes of a water connection, is of no avail to appellant as certificate expressly recites that so far only seven tenements had been handed over meaning thereby that further seven tenements remained to be handed over – Certificate was conditional in nature and not absolute – Plea of appellant that liability under impugned demand rested upon respondents alone in view of development agreement between parties and that authorities had made any direct communication with said respondents also does not merit any consideration in view of facts of case coupled with provisions of the Act – Question of any estoppel does not arise – Any dispute between appellant and respondents under development agreement between them falls in realm of a private dispute and does not detract from exclusive liability of appellant under order of exemption – Appellant having failed to hand over remaining seven tenements, impugned demand came to be raised by respondent no.1 as being current market value rate of remaining seven tenements pursuant to undertaking of appellant – Competent authority under the Act could have certainly withdrawn exemption in the event of breach along with all its attended consequences – Failure to do so did not deprive statutory authority of its powers to proceed appropriately under the Act – But competent authority being a creature of statute under Section 2(d) of Act, cannot act beyond its statutory jurisdiction and exercise of its powers shall remain circumscribed by provisions of the Act – Any undertaking by appellant cannot expand statutory jurisdiction of competent authority – Demand for market value of remaining seven tenements, falling outside purview of Act, cannot be construed as money due to Government so as to vest in it nature of an arrears of land revenue recoverable under Section 265 of Maharashtra Land Revenue Code, 1966 – Impugned demand is de hors provisions of the Act and unsustainable being beyond statutory powers of competent authority and arbitrary – Order of High Court set aside. (Paras 13, 14, 15, 16, 17 and 19)
Facts of the case:
The appellant is aggrieved by the order of the High Court affirming the demand dated 15.10.2005 by respondent No.1 for Rs. 51,97,196/- plus interest, penalty and recovery expenses as arrears of land revenue. The demand was raised consequent to the failure of the appellant to handover seven tenements to government nominees as required under the conditions of exemption granted under Sections 20 and 21 of the Urban Land (Ceiling and Regulation) Act, 1976(since repealed in 1999). Question that arises for consideration however is whether the competent authority under the Act possesses the power to recover the market value of seven tenements for failure to hand over possession in terms of the order of exemption.
Findings of Court:
There is no dispute with regard to the fact that there had been a breach by the appellant in terms of the exemption. The authority under the Act also did not take any steps to withdraw the exemption because of such breach. The tenements have been constructed and sold as we were informed. No directions therefore can be issued to hand over seven more tenements from the constructions so raised.
Result : Appeal allowed.
JUDGMENT :
NAVIN SINHA, J.
The appellant is aggrieved by the order of the High Court affirming the demand dated 15.10.2005 by respondent No.1 for Rs. 51,97,196/- plus interest, penalty and recovery expenses as arrears of land revenue. The demand was raised consequent to the failure of the appellant to handover seven tenements to government nominees as required under the conditions of exemption granted under Sections 20 and 21 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act”) (since repealed in 1999). The Additional Commissioner, Konkan Division, Mumbai as the appellate authority affirmed the same by his order dated 12.07.2006.
2. Shri Amar Dave, learned counsel for the appellant submitted that exemption was granted under Section 20 of the Act on 02.03.1988 for raising construction over two plots being CTS No. 261 and CTS No. 245. In lieu thereof the appellant was required to surrender 20 per cent of the constructed area to government nominees. The competent authority despite being aware that construction had been raised on only one plot, never withdrew the exemption. On the contrary, it consciously issued a “No Objection Certificate” acknowledging that seven tenements had been handed over. It was next submitted that if there had been any breach of the conditions of exemption, the Act empowered the authorities to withdraw the exemption with all its attendant consequences. Our attention was invited to provisions of Sections 20 and 21 of the Act.
3. It was next submitted that respondent no.1 did not have any statutory authority under the Act to levy the impugned demand much less recover it as arrears of land revenue. Relying upon Section 38(4) of the Act, Shri Dave submitted that the appellant could statutorily impose a punishment of fine, order imprisonment or impose both. The demand being dehors the provisions of the Act must be struck down. Reliance was placed on Naraindas Indurkhya vs. The State of Madhya Pradesh and Others, (1974) 4 SCC 788.
4. Contending that the “No Objection Certificate” dated 08.06.1993 was post 30.01.1990 judgment of this Court in M/s Shantistar Builders vs. Narayan Khimalal Totame and Others (1990) 1 SCC 520, the authorities at best could have enforced a 5% limit for handing over of tenements to government nominees.
5. Shri Dave next submitted that the appellant, to the knowledge of respondent no.1, had entered into a development agreement for the exempted lands with respondent nos. 2 to 4 and given a power of Attorney. The liability for breach, if any, and payment in respect thereof were, therefore, the exclusive responsibility of the said respondents who alone were responsible for the occasioned breaches. Acknowledging the same, the authorities had also made direct communication with the said respondents on 20.01.1994 and 27.01.1994.
6. Shri Sachin Patil, learned counsel for Respondent Nos. 1 and 5 submitted that in view of the prohibition contained in Clause 13 of the exemption order, the appellant could not have transferred the development rights to respondent nos. 2 to 4. Any illegal transfer made cannot be of any avail to the appellant by urging that the liability for payment, therefore, rested with the said respondent to the exclusion of the appellant. The exemption granted under the Act was composite in respect of two plots. It is not open for the appellant to contend that construction having been raised on one plot only, he was not bound by the original conditions of exemption. The no objection certificate relied upon by the appellant was not conclusive as it expressly recited that seven tenements had been handed over so far, meaning thereby that the remaining seven tenements were yet to be handed over.
7. Shri Patil, refuting the submission on behalf of the appellant that the liability for payment, if any, rested upon respondent Nos. 2 to 4 alone, submitted that it was the appellant who had applied for the exemption under the power of attorney given by the act
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