{"id":5601,"date":"2010-07-08T00:00:00","date_gmt":"2010-07-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-damodar-laxman-navare-vs-state-of-maharashtra-on-8-july-2010"},"modified":"2015-05-25T08:13:22","modified_gmt":"2015-05-25T02:43:22","slug":"shri-damodar-laxman-navare-vs-state-of-maharashtra-on-8-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-damodar-laxman-navare-vs-state-of-maharashtra-on-8-july-2010","title":{"rendered":"Shri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010<\/div>\n
Bench: P. B. Majmudar, R. M. Savant<\/div>\n
                                     1     wp\/6300\/09\n\n    mmj\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                \n                      IN ITS CIVIL APPELLATE JURISDICTION\n                         WRIT PETITION NO.6300 OF 2009\n\n\n\n\n                                                        \n    1.    Shri Damodar Laxman Navare\n\n    2.    Shri Yeshwant Laxman Navare\n\n\n\n\n                                                       \n    3.    Shri Raghunath Laxman Navare\n\n    4.    Shri Govind Laxman Navare\n\n    5.    Shri Moreshwar Laxman Navare\n\n\n\n\n                                                 \n          All adults, Indian Inhabitant,\n          residing at Navare Bungalow,\n\n          (East) Thane\n                               \n          Shiv Mandir Road, Ambernath\n                                                              ..Petitioners\n\n                Versus\n                              \n    1.    State of Maharashtra  \n          Through Urban Development\n          Department, Mantralaya,\n            \n\n          Mumbai, copy served through\n          Government Pleader, High Court\n         \n\n\n\n          Appellate Side, Bombay\n\n    2.    The Deputy Collector and\n          Competent Authority (ULC)\n          Ulhasnagar Urban Agglomeration\n\n\n\n\n\n          having his office at 4th floor,\n          Collectorate, Thane\n\n    3.    The Chief Executive Officer,\n          Ambernath Municipal Council\n\n\n\n\n\n          having its office at Ambernath\n          Thane\n\n    4.    Town Planner Ambernath\n          Municipal Council, having its\n          office at Ambernath, Thane\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 16:06:59 :::\n                                            2    wp\/6300\/09\n\n    5.       Sub-Registrar of Assurances at\n             Kalyan and Ulhasnagar having\n\n\n\n\n                                                                                                \n             its office at Nagar Palika Office,\n             Tehsil Karyalaya, Gandhi Road,\n             Ulhasnagar - 5 and at \n\n\n\n\n                                                                        \n             Opp. Shiv Temple, Ambernath (East)                               ..Respondents.\n              \n              \n\n\n\n\n                                                                       \n    Shri Y.S.Jahagirdar Sr. Counsel a\/w Shri A.A.Joshi with Shri Sateyen Vora, Smt \n    Tanvi   Gandhi   with   Shri   Prashant   Ghelani   and   Ms.   Pratiti   Naphade   i\/b   M\/s. \n    Markand Gandhi & Co. for the Petitioners\n\n    Shri   N.V.Walawalkar   Sr.   Counsel   with   Shri   S.N.Patil   AGP   with   Shri   Devidas \n\n\n\n\n                                                        \n    Keluskar AGP for Respondent State\n                                     \n    Shri Virendra Pethe i\/b Shri B.D.Joshi for Respondent Nos.3 & 4 \n\n\n                                            Coram:           P.B.MAJMUDAR AND\n                                    \n                                                             R.M. SAVANT, JJ.\n<\/pre>\n
                                                             8th July, 2010<\/p>\n
    ORAL JUDGMENT (Per Shri R.M.Savant J.)<\/p>\n
    1.             Rule, made returnable forthwith by the consent of the parties and <\/p>\n
    heard.\n<\/p>\n
    2.             The   Petitioners   who   claim   to   be   the   owners   of   certain   lands   in <\/p>\n
    Thane District, by way of this Petition filed under Article  226 of the Constitution <\/p>\n
    of India, principally challenge the letters dated 11-2-2009 and 18-6-2009 Exhibit <\/p>\n
    L   and   M   respectively.   By   letter   dated   11-2-2009,   the   authorities   mentioned <\/p>\n
    therein i.e. the Municipal Council, Kalyan and Dombivali Municipal Corporation, <\/p>\n
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    the Sub-Registrar, Kalyan and the Chief Officer of the Ambernath Nagar Palika, <\/p>\n
    were directed not to sanction the plans and to register the documents presented <\/p>\n
    for registration by the Petitioners in respect of the flats constructed on the land <\/p>\n
    owned   by   the   Petitioners.   By   letter   dated   18-6-2009,   the   Petitioners   were <\/p>\n
    informed that they would have to pay an amount of Rs.56,97,263\/- as penalty for <\/p>\n
    extension   of   time   that   will   be   granted   for   completing   the   scheme   sanctioned <\/p>\n
    under Section 20.\n<\/p>\n
    3.<\/p>\n
            Shorn   of   unnecessary   details,   the   facts   necessary   to   be   cited   for <\/p>\n
    adjudication of the above Petition can be stated thus:\n<\/p>\n
    4.              The Petitioners herein claim to be the owners of land bearing Survey <\/p>\n
    No.26\/4.   36\/15,   36\/17,   36\/19,   37,   39\/2   and   178   of   Village   Khol   Khutiwali, <\/p>\n
    District Thane ad-measuring about 85945 sq.mtrs. The said land was declared as <\/p>\n
    surplus by a virtue of order passed under Section 8(4)   of the ULCR ACT 1976 <\/p>\n
    (for brevity’s sake referred to as the said Act,) by the Additional Collector and <\/p>\n
    Competent Authority, by order dated 19-4-1982. It appears that the Petitioners <\/p>\n
    pursuant to the said 8(4) order applied for exemption under Section 20(1) of the <\/p>\n
    said Act.\n<\/p>\n
    5.      By an order dated 19-6-1990, the State Government granted exemption to <\/p>\n
    the extent of land ad-measuring 5298.86 sq.mtrs. which exemption initially was <\/p>\n
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    for   a   period   of   8   years.   It   appears   that   the   Petitioner   thereafter   sought <\/p>\n
    development permission from Kalyan Dombivali Municipal Council as it was then <\/p>\n
    known   which   granted   the   Intimation   of   Disapproval   (IOD)   on   15-4-1995   and <\/p>\n
    Commencement Certificate dated 18-4-1995 for construction of the buildings. The <\/p>\n
    Petitioners thereafter obtained NA permission for non agricultural use of the land.\n<\/p>\n
    In terms of the development permission, the Petitioners commenced construction <\/p>\n
    and   till   the   filing   of   the   present   Petition,   had   constructed   three   buildings <\/p>\n
    consisting of 42 flats and 18 shops which were sold to third parties. Thereafter, <\/p>\n
    certain facts have intervened which in our view are not germane for a decision in <\/p>\n
    the   above   matter.   However   on   25-11-2005,   the   said   exemption   order   dated <\/p>\n
    19-6-1990 was cancelled by the Additional Collector and Competent Authority, on <\/p>\n
    account of the non compliance of the said order within the stipulated time. On <\/p>\n
    such cancellation, the Petitioners filed an Appeal under Section 34 of the said Act, <\/p>\n
    which   Appeal   came   to   be   numbered   as   Appeal   No.364   of   2005   before   the <\/p>\n
    Additional Commissioner, Konkan Division. The said Appeal was allowed by the <\/p>\n
    Additional Commissioner by his order dated 24-4-2006 and the matter as regards <\/p>\n
    the   cancellation   came   to   be   remanded   back   to   the   Additional   Collector   and <\/p>\n
    Competent Authority. On such remand, the Additional Collector and Competent <\/p>\n
    Authority, by his order dated 14-11-2006 recommended to the Respondent No.1 <\/p>\n
    the   extension   of   time   to   implement   the   scheme.   Accordingly,   by   letter   dated <\/p>\n
    15-11-2006,   the   Additional   Collector   and   Competent   Authority   forwarded   a <\/p>\n
    report   to   the   State   Government   i.e.   Respondent   No.1   recommending   the <\/p>\n
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    extension. Whilst the said process was in motion, a Notification came to be issued <\/p>\n
    under Section 10(1) of the said Act on 17-11-2007 followed by the Notification <\/p>\n
    under Section 10(3) dated 19-11-2007 in respect of the lands in question. In so <\/p>\n
    far as the acquisition was concerned, the matter has rested there. Thereafter on <\/p>\n
    27-11-2007,   the   Petitioners   were   informed   by   letter   dated   16-11-2007   of   the <\/p>\n
    Respondent   No.1   that   the   recommendation   of   the   Respondent   No.2   has   been <\/p>\n
    accepted. By the said letter, it was further informed that the Respondent No.1 i.e. <\/p>\n
    State Government is proposed to levy fine for grant of extension for completion of <\/p>\n
    the scheme. The said letter disclosed that the extension was to be granted only on <\/p>\n
    payment of the penalty levied.  Thereafter a defining event in the form of the said <\/p>\n
    Act, being repealed in so far as the State of Maharashtra is concerned, came into <\/p>\n
    operation   on   29-11-2007.   The   Petitioners   had   thereafter   filed   a   Writ   Petition <\/p>\n
    being Writ Petition No.9266 of 2007 challenging the Notification under  Section <\/p>\n
    10(1) and 10(3) of the said Act, which Writ Petition came to be allowed by a <\/p>\n
    Division Bench of this Court by judgment and order dated 11-6-2008 and the said <\/p>\n
    Notifications came to be quashed and set aside, on the ground that the Repeal Act <\/p>\n
    having come into force the proceedings have abated. However in so far as the <\/p>\n
    issue regarding the scheme under Section 20 was concerned, the matter was left <\/p>\n
    open by the Division Bench for the Petitioners to agitate the same in appropriate <\/p>\n
    proceedings. This is how the Petitioners have filed the instant Petition.\n<\/p>\n
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                                              6   wp\/6300\/09<\/p>\n
    6.              The above Petition has been appearing for admission from time to <\/p>\n
    time. By order dated 30-7-2009, the Petitioners were granted ad-interim relief in <\/p>\n
    terms   of   prayer   clause   (d)   and   (e)   subject   to   the   Petitioners   depositing   the <\/p>\n
    amount mentioned in Exhibit M i.e. the amount of Rs.56,97,263\/-. The Petitioners <\/p>\n
    have accordingly deposited the said amount which we are now informed is lying <\/p>\n
    in deposit in this Court.\n<\/p>\n
    6.              As indicated above, the challenge in the present Petition is to the <\/p>\n
    two letters Exhibit L and M to the Petition. In so far as letter dated 11-2-2009, <\/p>\n
    Exhibit L to the Petition is concerned, by the said letter a directive has been issued <\/p>\n
    to the two planning authorities within whose jurisdiction the lands in question fall <\/p>\n
    the directive is to the effect that the plans submitted by the Petitioners should not <\/p>\n
    be approved unless so intimated by the Respondent No.1.\n<\/p>\n
            The directive to the sub-Registrar is to the effect that his office should not <\/p>\n
    register   any   document   presented   by   the   Petitioners   for   registration   unless   so <\/p>\n
    intimated by the Respondent No.1. In our view considering the provisions of the <\/p>\n
    said Act we do not see any such power being vested in the authorities in the said <\/p>\n
    Act. The issue as to whether such directives could be issued to the Sub-Registrar <\/p>\n
    by the authorities in exercise of powers under the said Act had also come up for <\/p>\n
    consideration before a Division Bench of this Court in Writ Petition No.1955 of <\/p>\n
    2007 and companion Petitions in the matter of   Sundarsons & ors. Vs. State of <\/p>\n
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\n                                           7   wp\/6300\/09<\/p>\n
    Maharashtra & Ors., the Division Bench by Judgment and Order dated 26-6-2008 <\/p>\n
    reported in 2008(6) MLJ page 332 has held that the Collector is not empowered <\/p>\n
    to give directions to the authorities to the extent issued as the Collector has no <\/p>\n
    Appellate Supervisory or Revisional powers over the Registering officer under the <\/p>\n
    Act. From the point of view of the present controversy the relevant paragraphs of <\/p>\n
    the said Judgment is paragraph 23, 26 and 28 which are reproduced hereunder:\n<\/p>\n
                 “23. Part VI of the Registration Act  deals with the provisions <\/p>\n
                 of   documents   dealing   with   the   proceeding   relating   to   the <\/p>\n
                 presentation of documents for documentation. Section 32 lays <\/p>\n
                 down   the   persons   who   can   present   the   documents   for <\/p>\n
                 registration, section 32A states that a photograph of both the <\/p>\n
                 executing parties has to be fixed. Section 33 lays down that <\/p>\n
                 the   Power   of   Attorney   can   be   given   by   any   person,   who <\/p>\n
                 intends   to   present   the   document   for   registration   and   the <\/p>\n
                 relevant   provision   for   the   purpose   of   deciding   the   issue   in <\/p>\n
                 question   are   sections   34   and   35.   Section   34   empower   the <\/p>\n
                 Registering     Authority   to   make   an   enquiry   with   the <\/p>\n
                 registration   and   section   35   lays   down   in   the   circumstances <\/p>\n
                 under   which  registration  can  be   denied.  Section  34   and   35 <\/p>\n
                 reads as under:-<\/p><\/blockquote>\n
                 “34.   Enquiry   before   registration   by   registering   officer   –   (1) <\/p>\n
                 Subject to the provisions contained in this Part and in sections <\/p>\n
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\n                                8   wp\/6300\/09<\/p>\n
     41,   43,   45,   69,   75,   77,   88   and   89,   no   document   shall   be <\/p>\n
     registered under this Act, unless the persons executing such <\/p>\n
     document,   or   their   representatives,   assigns   or   agents <\/p>\n
     authorised as aforesaid, appear before the registering officer <\/p>\n
     within the time allowed for presentation under Section 23, 24, <\/p>\n
     25 and 26.\n<\/p>\n
     Provided   that,   if   owing   to   urgent   necessity   or   unavoidable <\/p>\n
     accident all such persons do not so appear, the Registrar, in <\/p>\n
     cases   where   the   delay   in   appearing   does   not   exceed   four <\/p>\n
     months, may direct that on payment of fine not exceeding ten <\/p>\n
     times the amount of the proper registration fee, in addition to <\/p>\n
     the fine, if any, payable under section 25, the document may <\/p>\n
     be registered.\n<\/p>\n
             (2)   Appearance   under   sub-section   (1)   may   be <\/p>\n
     simultaneous or at different times.\n<\/p>\n
             (3) The registering officer shall thereupon-\n<\/p>\n
             (a)   enquire   whether   or   not   such   document   was <\/p>\n
     executed  by the persons by whom it purports to have been <\/p>\n
     executed.\n<\/p>\n
             (b)   satisfy   himself   as   to   the   identify   of   the   persons <\/p>\n
     appearing before him and alleging that they have executed the <\/p>\n
     document;  and<\/p>\n
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             (c)   in   the   case   of   any   person   appearing   as   a <\/p>\n
     representative, assign or agent, satisfy himself of the right of <\/p>\n
     such person so to appear.\n<\/p>\n
             (4) Any application for a direction under the proviso to <\/p>\n
     sub-section (1) may be lodged with a Sub-Registrar, who shall <\/p>\n
     forthwith   forward   it   to   the   Registrar   to   whom   he   is <\/p>\n
     subordinate.\n<\/p>\n
             (5) Nothing in this section applies to copies of decrees <\/p>\n
     or orders.\n<\/p>\n
             35.   Procedure   on   admission   and   denial   of   execution <\/p>\n
     respectively-\n<\/p>\n
             (1)(a) If all the persons executing the document appear <\/p>\n
     personally   before   the   registering   officer   and   are   personally <\/p>\n
     known to  him, or  if he be otherwise  satisfied that they are <\/p>\n
     persons they represent themselves to be, and if the all admit <\/p>\n
     the execution of the document, or <\/p>\n
             (b)if   in   the   case   of   any   person   appearing   by   a <\/p>\n
     representative, assign or agent, such representative, assign or <\/p>\n
     agent admits the execution, or<\/p>\n
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               (c) if the person executing the document is dead and <\/p>\n
     his   representative   or   assign   appears   before   the   registering <\/p>\n
     officer and admits the execution, the registering officer shall <\/p>\n
     register   the   document   as   directed   in   sections   58   to   61, <\/p>\n
     inclusive.\n<\/p>\n
               (2)   The   registering   officer   may,   in   order   to   satisfy <\/p>\n
     himself that the persons appearing before him are the persons <\/p>\n
     they   represent   themselves   to   be,   or   for   any   other   purpose <\/p>\n
     contemplated   by   this   Act,   examine   any   one   present   in   his <\/p>\n
     office.\n<\/p>\n
               (3) (a) if any person by whom the document purports <\/p>\n
     to be executed denied its execution or <\/p>\n
               (b) if any such person appears to the registering officer <\/p>\n
     to be a minor, an idiot or a lunatic, or <\/p>\n
               (c) if the person by whom the document purports to be <\/p>\n
     executed is dead, and his representative or assign denies its <\/p>\n
     execution,   the   registering   officer  shall   refuse   to   register   the <\/p>\n
     document as to the person so denying, appearing or dead :\n<\/p>\n
               Provided that, where such officer is a Registrar, he shall <\/p>\n
     follow the procedure prescribed in part XII:\n<\/p>\n
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                              11    wp\/6300\/09<\/p>\n
             43   (provided   further   that   the   44(State   Government) <\/p>\n
     may, by notification in the 45(official Gazette), declare that <\/p>\n
     any Sub-Registrar named in the notification shall, in respect of <\/p>\n
     documents the execution of which is denied, be deemed to be <\/p>\n
     a   Registrar   for   the   purposes  of   this  sub-section   and   of  Part <\/p>\n
     XII.)<\/p>\n
             From   the   perusal   of   section   34   and   section   35   it   is <\/p>\n
     apparent that no power has been given to the Collector to give <\/p>\n
     directions   to   the   Sub-Registrar   to   refuse   registration   of   the <\/p>\n
     document.   The   provisions   regarding   registration   of   the <\/p>\n
     document are enumerated in the Registration Act, 1908. It is a <\/p>\n
     settled position in law that executive instructions which are <\/p>\n
     given by the State by exercising its powers under Article 162 <\/p>\n
     of   the   Constitution   of   India   cannot   circumvent   a   statutory <\/p>\n
     provision.   It   has,   therefore,   now   to   be   seen   under   which <\/p>\n
     provisions   the   said   letter\/circular   dated   19th  May   2007   has <\/p>\n
     been issued by the Collector. The said letter\/circular has been <\/p>\n
     issued   by   the   Collector   and   is   in   a   cyclostyled   form.   It <\/p>\n
     enumerates   the   various   classes   of   lands     belonging   to   the <\/p>\n
     Government.   If   further       states   that   these   lands   have   been <\/p>\n
     granted   to   different institutions  and  individuals   on  various <\/p>\n
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     terms and conditions. It further states that these lands cannot <\/p>\n
     be   transferred   without   Government   permission.   It   further <\/p>\n
     mentions   that   these   lands   are   being   transferred   without <\/p>\n
     obtaining the Government Permission and as a result of such <\/p>\n
     unathorised transfer, Government is losing revenue amount in <\/p>\n
     crores   of   rupees   and   thereafter   the   following   direction   has <\/p>\n
     been given:\n<\/p>\n
             “Therefore, in future such transfers could not take place <\/p>\n
     without   permission,   nor   any   entry   made   into   Government <\/p>\n
     records.”\n<\/p>\n
             Perusal   of   the   said   circular   clearly   discloses   that   the <\/p>\n
     letter does not disclose the source of the power under which it <\/p>\n
     has been issued. It also does not state either the power which <\/p>\n
     is vested in the Collector to issue the said letter to the Sub-\n<\/p>\n
     Registrar either under the provisions of the Maharashtra Land <\/p>\n
     Revenue   Code   or   under   the   Registration   Act,   1908,   or   the <\/p>\n
     rules   framed   thereunder.   The   learned   Government   Pleader <\/p>\n
     had   strenuously   urged   before   us   that   these   lands   are <\/p>\n
     Government   lands   under   the   provisions   of   the   Maharashtra <\/p>\n
     Land Revenue Code that the Government had power to take <\/p>\n
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     action against the allottees for breach of terms and conditions <\/p>\n
     of   the   allotment   order,  he     invited  our   attention  to   various <\/p>\n
     provisions   of   the   Land   Revenue   Code.   However,   it   is   an <\/p>\n
     admitted   position  that   none   of   these   provisions   empowered <\/p>\n
     the Collector to issue directions to the Sub-Registrar who is <\/p>\n
     the   Statutory  Authority  under  the  Registration Act, 1908   to <\/p>\n
     desist from registration of a document on account of breach of <\/p>\n
     any   terms   and   conditions   in   allotment   of   land   by   the <\/p>\n
     Government   to   the   allottees.   The   said   submission   made   by <\/p>\n
     Shri   Belose,   the   learned   Government   Pleader   appearing   on <\/p>\n
     behalf of the State, therefore, cannot be accepted.”\n<\/p>\n
     26   The   Counsel   appearing   on   behalf   of   the   petitioners   has <\/p>\n
     relied on the judgment of the Madras High Court in the case <\/p>\n
     of   Pandurangan   Vs.   Sub-Registrar,   Reddiarpalayam <\/p>\n
     Pondicherry and ors. Reported in AIR 2007 Madras page 159.\n<\/p>\n
     The   learned   Single   Judge   of   the   Madras  High   Court  has  in <\/p>\n
     paragraph Nos.17 and 18 of its Judgment has observed that :\n<\/p>\n
             17. A conjoint reading of sections 34 and 35 of the Act <\/p>\n
     shows   that   the   scope   of   the   enquiry   to   be   made   by   the <\/p>\n
     Registering   Officer   is   limited   by   the   Act,   to   the   factum   of <\/p>\n
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     execution   and   the   identity   of   the   person   executing   the <\/p>\n
     document,   other   than   the   levy   of   stamp   duty,   collection   of <\/p>\n
     registration   charges   and   the   completion   of   procedural <\/p>\n
     formalities such as attestation etc.<\/p>\n
             18. When the power of Registering Officer himself is so <\/p>\n
     circumscribed by the provisions of the Act. It is not open to the <\/p>\n
     third respondent  to issue an instruction to respondents 1 and <\/p>\n
     2 to withhold the registration of any transaction, as he has no <\/p>\n
     Appellate,   Supervisory   or   Revisional   powers   over   the <\/p>\n
     Registering Officer, under the Act.”\n<\/p>\n
             We are in respectful agreement with the observations <\/p>\n
     made by the learned Single Judge of the Madras High Court.\n<\/p>\n
     In the present case also, it was not open or the Collector to <\/p>\n
     issue   instructions   to   the   respondent   No.3   to   withhold <\/p>\n
     registration   of   the   documents   as   he   has   no   Appellate, <\/p>\n
     Supervisory or Revisional  powers over the Registering Officer <\/p>\n
     under the Act.\n<\/p>\n
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                               15    wp\/6300\/09<\/p>\n
     28.For the aforesaid reasons, in our view the letter issued by <\/p>\n
     the   Collector   dated   19th  May   2007   is   clearly   illegal   and <\/p>\n
     without authority of law.\n<\/p>\n
             It is however, made clear that it is specifically clarified <\/p>\n
     that it would be open for the State Government to take such <\/p>\n
     steps, if any breach has been committed by the petitioner or <\/p>\n
     by its Predecessor-in-title in respect of the land allotted to the <\/p>\n
     Petitioners   or   its   Predecessor-in-title   by   following   due <\/p>\n
     procedure of law.\n<\/p>\n
             Further   it   is   expressly   made   clear   that   we   have   not <\/p>\n
     decided   the   question   as   to   whether   the   petitioners   are   the <\/p>\n
     owners of the land as claimed by them or the contentions of <\/p>\n
     the   Government   that   the   petitioners   and   its   Predecessor-in-\n<\/p>\n
     title were having B-1 tenure. These questions are kept open <\/p>\n
     and   the   Petitioners   are   liberty   to   take   our   appropriate <\/p>\n
     proceeding for seeking a declaration that the petitioners are <\/p>\n
     the owners of the land.\n<\/p>\n
             The   Writ   Petitions   accordingly   are   allowed   and <\/p>\n
     respondent No.3 is directed to register the documents which <\/p>\n
     are presented to him as per the provisions of the Registration <\/p>\n
     Act in accordance with law. Under these circumstances there <\/p>\n
     shall be no order as to costs.”\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:07:00 :::<\/span><\/p>\n
                                              16   wp\/6300\/09<\/p>\n
    7.              The   said   legal   position   has   been   reiterated   by   another   Division <\/p>\n
    bench of this Court in the Judgment reported in 2009(1) Bom CR page 275. In so <\/p>\n
    far as the said Judgment (Supra) is concerned the directions in the said case were <\/p>\n
    issued to the Planning Authorities under the MRTP Act 1966. The Division bench <\/p>\n
    in   the   said   case   held   that   there   is   no   absolute   power   vested   in   the   State <\/p>\n
    Government under Section 20 or 21 or any other provisions of the ULC Act to <\/p>\n
    nullify   or   cancel   the   order   passed   or   building   permit   issued   by   the   Planning <\/p>\n
    Authority under the MRTP Act. The relevant paragraph of the said Judgment is <\/p>\n
    paragraph 58 which is reproduced hereunder:\n<\/p>\n
                     “58.   Sub-Clause   (a)   of   Clause   (2)   of   the   Government <\/p>\n
                     Resolution   dt.   8.11.2007   stipulates   that   where   permission <\/p>\n
                     was   granted   by   the   Planning   Authority   for   construction   of <\/p>\n
                     multistories   building   in   the   Special   Plot   Scheme   and   the <\/p>\n
                     construction   activity   has   not   been   commenced   prior   to <\/p>\n
                     12.4.2007,   all   such   permissions\/sanctions   given   by   the <\/p>\n
                     Planning Authority stand cancelled and it is binding on the <\/p>\n
                     scheme   holder   to   implement   the   Scheme   in   its   original <\/p>\n
                     nature. We once again reiterate that, the State Government <\/p>\n
                     was empowered, under Sections 20 and 21 of the U.L.C. Act, <\/p>\n
                     to formulate the Schemes and impose conditions as it deems <\/p>\n
                                                                          ::: Downloaded on – 09\/06\/2013 16:07:00 :::<\/span>
\n                                            17    wp\/6300\/09<\/p>\n
                 fit, and in case of breach of conditions, power of withdrawal <\/p>\n
                 of   Exemption   Certificate   was   also   vested   in   the   State <\/p>\n
                 Government. However, there is absolute no power vested in <\/p>\n
                 the State Government either under Sections 20 and 21 or any <\/p>\n
                 other   provisions   of   the   U.L.C.   Act   to   nullify   or   cancel   the <\/p>\n
                 order   passed   or   building   permit   issued   by   the   Planning <\/p>\n
                 Authority under the MRTP Act.  Breach of condition by the <\/p>\n
                 land holder or holder of the scheme did not clothe the State <\/p>\n
                 Government   with   the   jurisdiction   to   cancel   or   revoke   the <\/p>\n
                 order   of   the   Planning   authority,   though   the   State <\/p>\n
                 Government   could   withdraw   the   exemption   granted   under <\/p>\n
                 section 20 or take such action against the scheme holder as <\/p>\n
                 provided under Section 21 of the U.L.C. Act.”\n<\/p><\/blockquote>\n
                                                                              (emphasis supplied)<\/p>\n<\/blockquote>\n
    8.           Hence   in   the   light   of   the   legal   position   as   enunciated     by   the <\/p>\n
    Judgments (Supra), we have no hesitation to hold that the directives of the nature <\/p>\n
    contained in Exhibit L could not have been issued and, therefore, the same are <\/p>\n
    illegal and ultra vires the powers of the authorities under the said Act. The said <\/p>\n
    communication Exhibit L dated 11-2-2009 is, therefore, required to be quashed <\/p>\n
    and set aside and is accordingly quashed and set aside.\n<\/p><\/blockquote>\n
                                                                           ::: Downloaded on – 09\/06\/2013 16:07:00 :::<\/span><\/p>\n
                                              18    wp\/6300\/09<\/p>\n<\/blockquote>\n
    9.               In so far as the second challenge of the Petitioners is concerned i.e. <\/p>\n
    letter dated 18-6-2009 Exhibit M to the Petition, by the said letter the Petitioners <\/p>\n
    have   been   called   upon   to   deposit   an   amount   of   Rs.56,97,263\/-   which   the <\/p>\n
    Petitioners have now deposited without prejudice to their rights and contentions <\/p>\n
    in the above Petition. The said letter also in a way threatens the Petitioners that in <\/p>\n
    the   event,   the   said   amount   is   not   deposited   by   the   Petitioners,   the   follow   up <\/p>\n
    action   will   be   taken   by   the   authorities   including   the   launching   of   criminal <\/p>\n
    prosecution against the Petitioners. It would be worth while to note that the letter <\/p>\n
    itself is a sequitur to the letter dated 16-11-2007, by which a decision was taken <\/p>\n
    by the State Government to grant extension of time to the Petitioners to complete <\/p>\n
    the scheme on condition of penalty that would be levied by the State Government.\n<\/p><\/blockquote>\n
    By the impugned communication Exhibit M, the Petitioners have been informed of <\/p>\n
    the amount of penalty that they would have to pay. Therefore, the Petitioners <\/p>\n
    have in a way challenged the consequential order without challenging the main <\/p>\n
    order dated 16-11-2007, it would also be pertinent to note that all the orders upto <\/p>\n
    the order dated 16-11-2007 have been passed when the said Act was very much <\/p>\n
    in force. Though it is the case of the Petitioners that since they have not complied <\/p>\n
    with the order granting them extension on the condition of payment of penalty <\/p>\n
    and, therefore, there is no exemption order in existence today and, the Petitioners <\/p>\n
    are, therefore, not bound to develop the said property in terms of the exemption <\/p>\n
    order, in our view, in the facts and circumstances of the present case, it is not <\/p>\n
    necessary for us to go into the said issue at this stage. As indicated earlier, the <\/p>\n
                                                                           ::: Downloaded on – 09\/06\/2013 16:07:00 :::<\/span>
\n                                              19    wp\/6300\/09<\/p>\n
    Petitioners   have   been   informed   that   unless   they   pay   the   amount   of   penalty <\/p>\n
    extension   would   not   be   granted   and   if   penalty   is   not   paid,   the   same   may   be <\/p>\n
    recovered as arrears of land revenue as well as the Petitioner are threatened with <\/p>\n
    criminal prosecution. The Petitioners have approached this Court against the said <\/p>\n
    Exhibit  M, in the  context of  the  said  Act being  repealed. It  is  the   case  of  the <\/p>\n
    Petitioners that the Repeal Act would have far reaching consequences for them in <\/p>\n
    as much as on account of the repeal the scheme cannot be said to be in existence.\n<\/p>\n
    10.<\/p>\n
                     Per contra, it is the case of the Respondents that the order dated <\/p>\n
    17-11-2007 having being passed prior to the Act being repealed and when the Act <\/p>\n
    was in force is saved by sub Section 3(1)(b) of the Repeal Act as indicated above, <\/p>\n
    we need not go into the said aspect as in our view it would be necessary for the <\/p>\n
    State Government to have a fresh look at the matter considering the aforesaid <\/p>\n
    conspectus of facts. We, therefore, set aside the impugned communication Exhibit <\/p>\n
    M and direct the State Government to take a fresh decision in the matter in the <\/p>\n
    light of the Repeal Act 1999 and in the light of the conspectus  of facts as narrated <\/p>\n
    above.  Since we have directed the State Government to take a fresh decision, we <\/p>\n
    have not delved into the merits of the rival contentions and leave it to the parties <\/p>\n
    to   agitate   the   same   before   the   appropriate   forum   in   appropriate   proceedings.\n<\/p>\n
    Considering the fact that the scheme is being implemented since the year 1990, it <\/p>\n
    would be in the interest of the parties if the State Government takes a decision <\/p>\n
    expeditiously and not later than two months from date.\n<\/p>\n
                                                                          ::: Downloaded on – 09\/06\/2013 16:07:00 :::<\/span><\/p>\n
                                               20    wp\/6300\/09<\/p>\n
    11.              In   so   far   as   the   amount   of   Rs.56,97,263\/-   deposited   by   the <\/p>\n
    Petitioners in this Court, is concerned the Petitioners are permitted to withdraw <\/p>\n
    the   said   amount   for   which,   the   Learned   Senior   Counsel   appearing   for   the <\/p>\n
    Respondents has no objection. The permission to withdraw the amount is not an <\/p>\n
    expression of any opinion as regards the merits of the case of either of the parties <\/p>\n
    and the State Government would be free to decide the case on its own merits and <\/p>\n
    in accordance with law. The State Government, in the light of the consequences <\/p>\n
    that its decision would have is directed to hear the Petitioners before arriving at <\/p>\n
    any decision.\n<\/p>\n
    12.              Rule   is   accordingly   made   absolute   to   the   aforesaid   extent   with <\/p>\n
    parties to bear  its own costs.\n<\/p>\n
    (R.M.SAVANT, J.)                                                 (P.B.MAJMUDAR, J.)\n\n\n\n\n\n\n                                                                       ::: Downloaded on - 09\/06\/2013 16:07:00 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010 Bench: P. B. Majmudar, R. M. Savant 1 wp\/6300\/09 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6300 OF 2009 1. Shri Damodar Laxman Navare 2. Shri Yeshwant Laxman Navare 3. Shri […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-5601","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-damodar-laxman-navare-vs-state-of-maharashtra-on-8-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010 - 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