Bhiwandi Powerloom Co-Operative ... vs The State Of Maharashtra Through ...
2023 Latest Caselaw 8969 Bom

2023:BHC-AS:25245-DB                                        23-aswp-2229-2022-J.doc




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO. 2229 OF 2022


                 Bhiwandi Powerloom Co-operative Society Ltd.
                 (Formerly Known as Bhiwandi Co-operative
                 Spinning Mills Ltd.), having its office at 3,
                 Bengalpura, Bhiwandi, Thane-421 203
                 Through its Chairman Iqbal Ahmed Abdul Rauf
                 Punjabi.                                          ... Petitioner
                            Versus
                 1. The State of Maharashtra, Through its
                     Principal Secretary, Revenue and Forest
                     Department, Mantralaya, Mumbai.
                 2. The Collector, Thane.
                 3. The Tahsildar (Revenue), Having its office
                     at Collector Office, Thane.                   ... Respondents

                 Mr. Raju D. Suryawanshi for Petitioner.
                 Ms. S. S. Bhende, AGP for Respondents-State.


                                            CORAM          K. R. SHRIRAM &
                                                           DR. N. K. GOKHALE, JJ.

DATED: 31st August 2023

JUDGMENT:- (PER Dr. N. K. Gokhale, J.)

1. Rule. Rule is made returnable forthwith. Heard finally by

consent of parties.

2. The Petitioner assails letter/order dated 29 th March 2019

issued by the Respondent No.3 directing the Petitioner to pay an

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amount of Rs.87,04,480/- and for a declaration that the Petitioner is

not liable to pay the said amount towards extension of building

permission in respect of implementation of the project. The

Petitioner also seeks a declaration that the Government Resolution

("GR") dated 1st March 2019 is not applicable to it.

3. The Petitioner is a specified co-operative society registered

under the Maharashtra Co-operative Societies Act, 1960, with an

object of constructing spinning mills for the power loom sector in

Bhiwandi. The Respondents No.2 and 3 are the Collector, Thane

and Tahsildar (Revenue), Thane, respectively, of the Respondent

No.1-State of Maharashtra.

4. Shorn of unnecessary details, the brief facts are that by order

dated 9th September 1977, the Petitioner was allotted land

admeasuring approximately 10 acres and 5 gunthas of Survey No. 60

of Village Savande, Taluka Bhiwandi. In terms of the allotment, the

Petitioner was required to complete the construction of the building

and implement the project within three years from the date of

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handing over the possession of the said land. The possession of the

land was handed over to the Society on 18th October 1977.

5. Accordingly, the Petitioner procured non-agricultural use

("NA") permission on 28th October 1983. By letter dated 31 st

January 1994, the Petitioner requested the collector to change the

NA permission and permit the use of land for power loom shed. By

letter dated 14th September 1994, the Collector issued a notice to the

Petitioner to show cause as to why the land should not be resumed

by the Government for non-compliance of the conditions of

allotment. The Petitioner replied to the notice, however, the land

came to be resumed by the State. An appeal preferred by the

Petitioner was dismissed by the Competent Authority, however, by

order dated 28th February 2002, the Revenue Minister of the State

set aside the resumption order in appeal.

6. It is the case of the Petitioner that he was unable to complete

the construction and implement the project within the stipulated

period on account of obstructions caused by various departments of

the State. By GR dated 11th January 2017, the State decided to grant

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extension for a further period of three years to allottees such as the

Petitioner-Society on payment of 2% of the value of land as

published in the Ready reckoner. A subsequent GR dated 1 st March

2019 modified the amount to be paid for such extension of time.

The Petitioner made an application to the Collector for extension of

time on 8th March 2019. By letter dated 29 th March 2019, the

Tahsildar directed the Petitioner to deposit an amount of

Rs.87,04,182/- calculated as per applicable rate for grant of

extension of time. This is the communication that is impugned in

the Petition.

7. Mr. Suryawanshi, learned Counsel for the Petitioner draws

our attention to the letter of 29 th March 2019 addressed by the

Respondent No.3 to the Tahsildar of Bhiwandi by which the latter

has been directed to grant extension of time to the Petitioner-

Society as per its request subject to deposit of the aforesaid amount.

The said communication refers to the GRs dated 11 th January 2017

and 1st March 2019. He states that the Respondents failed to

appreciate the best efforts made by the Petitioner-Society to start

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the project as it faced obstacles in seeking permission from various

government departments and it is only on 21 st February 2021 that

the Mumbai Metropolitan Regional Development Authority

("MMRDA"), the special planning authority, granted

Commencement Certificate for the construction. He has also put

forth a ground that 25th March 2020 onwards the Petitioner was

unable to move appropriate government departments on account of

the COVID-19 pandemic. He thus urges us to allow the Petition.

8. Ms Bhende, learned AGP points out a letter of 14 th August

2019 at Exhibit "G" (page 46) addressed by the Petitioner to the

Respondent No.2-Collector, clearly conveying that the Petitioner-

Society has abided by the directions of the Collector in respect of

deposit of an amount of Rs.15,63,702/- and furnishing a bank

guarantee of Rs.71,40,480/- issued by the Greater Bombay Co-

operative Bank Ltd., Thane. She also points to a government order

("GO") of 11th September 2019 at Exhibit "H" (page 47) granting

extension of time to the Petitioner-Society up to 1 st March 2021

upon the deposit of the aforesaid amount and furnishing of the

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required bank guarantee. She thus submits that the Petitioner has

already complied with the conditions of the deposit of the charges

and furnishing of bank guarantee on the basis of which time for

implementation of project was extended and therefore, this Petition

is misconceived.

9. We have considered the submissions of both the parties and

have perused the documents on record. Undoubtedly, the

Petitioner was allotted the said land pursuant to GO dated 4 th

September 1977. The idea behind allotment of government land to

deserving persons, societies, corporate entities, etc. was to act as a

catalyst to promote economic growth and accelerate pace of

development. The order itself was passed by virtue of the powers

vested in the government under the provisions of the Maharashtra

Land Revenue (Disposal of Government land) Rules, 1971 ("Rules

1971"). Rule 41 of the Rules 1971 vests in the Collector the power

to annex additional conditions for the grant of land. It is in the

exercise of this power vested in the Collector by the statutory

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provision as well as respective GRs, that the conditions have been

imposed on the Petitioner-Society.

10. Admittedly, the land was allotted to the Petitioner-Society on

9th September 1977 and possession was handed on 18th October 1977.

There was a specific condition No. (xiii) of the allotment order that

non-construction of building would lead to resumption of the said

land under the provisions of the Act and the Rules. As noticed

above, the Petitioner-Society failed to raise construction on the plot

and the land was resumed by the Collector. For the past 46 years,

the Petitioner-Society has failed to complete the construction and

implement the project, the purpose for which the land was allotted.

There is nothing on record to remotely indicate attempts made by

the Petitioner-Society to procure required permissions from

government department and obstacles allegedly created by such

departments to complete the project. On the contrary, the record

itself shows that the Collector has once already resumed the land in

the year 1995 itself for the Petitioner's failure to comply with the

conditions of allotment and it was only on the order of the Revenue

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Minister as an appellate authority that the resumption order was set

aside and the Petitioner was afforded another opportunity to

complete the project. Despite this respite, the project has yet not

taken of and the object of allotting the said land has been frustrated

by the lackadaisical approach of the Petitioner-Society.

11. The record further shows that the Petitioner-Society has

availed the benefits of extension of time on payment of the extension

fee as prescribed and is now trying to assail the very same condition.

In our considered opinion, defaulting allottees of valuable plots

cannot be allowed to approbate and reprobate by first agreeing to

abide by the terms and conditions of allotment and enjoying the

benefits of extended period and later seek to deny their liability as

per the agreed terms. The impugned letter is nothing but a

communication between the competent authorities inter se directing

extension of period subject to payment of the required fee.

Similarly, the assailed GR is applicable to the case of the Petitioner

since it is by virtue of the government decisions itself that the land

came to be initially allotted to it. Having deposited the amount and

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furnishing the bank guarantee, it is now the duty of the Petitioner-

Society to keep the bank guarantee alive as a condition to continued

enjoyment of the benefits of the land. It does not lie in its mouth to

assail at such a belated stage the applicability of the GR of 1 st March

2019 to it.

12. In view of the above discussion, the Writ Petition fails. Rule

is thus discharged. There will be no order as to costs.

                              (DR. N. K. GOKHALE, J.)                         (K. R. SHRIRAM, J.)




Signed by: Raju D. Gaikwad

Date: 01/09/2023 20:45:41       Gaikwad RD