Bombay High Court
Shikalgar Co-Op.Housing Society vs The State Of Maharashtra on 3 September, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:36921
WP.2641.2000.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2641 OF 2000
Shikalgar Co-operative Housing Society,
Through its Chairman .. Petitioner
Versus
State of Maharashtra .. Respondent
....................
Mr. Kailas Dewal a/w. Mr. Yash Dewal and Mr. Sham Thakur,
Advocates for Petitioner.
Ms. Sulbha D. Chipade, AGP for Respondent.
Mr. Yuvraj Bangar, Tahsildar (Revenue) MSD, Bandra Present.
....................
CORAM : MILIND N. JADHAV, J.
Reserved on : JUNE 27, 2025
Pronounced on : SEPTEMBER 03, 2025
JUDGMENT:
1. Heard Mr. Dewal, learned Advocate for Petitioner and Ms.
Chipade, learned AGP for Respondent - State.
2. This Writ Petition is filed in the year 2000 by the Society. It
is nomenclatured as Writ Petition No.2041 of 2000. It challenges the
legality and validity of twin orders dated 06.03.1999 passed by the
Collector and 17.07.1999 passed by the Additional Commissioner,
Konkan Division, Mumbai, inter alia, pertaining to resumption of the
land allotted to the Petitioner - Society in the year 1985. Pursuant to
filing of the Petition and its admission, directions were given to the
State Government to consider the Revision filed by the Petitioner -
Society. By virtue of order dated 14.09.2012, State has upheld the
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order dated 17.07.1999 passed by the Additional Commissioner,
Konkan Division. Thus in effect challenge in the Petition is to the
concurrent orders dated 06.03.1999 (passed by the Collector) and
dated 17.07.1999 (passed by the Additional Commissioner, Konkan
Division) and order dated 14.09.2012 passed by Respondent No.1 -
State subsequently.
3. The following relevant facts are required to be gone into for
the purpose of deciding the present Writ Petition. Principal contested
is the State of Maharashtra.
3.1. Members of the Petitioner - Society registered the Society on
18.07.1984. There were 20 members. They applied to the State of
Maharashtra for grant of a plot of land to construct residential houses
for the Members of the Society. Petitioner consisted of Members from
Backward Class (Nomadic Tribe) Community and were therefore
eligible for grant of land, free of cost under the Backward Class Co-
operative Housing Society Scheme.
3.2. Petitioner was granted plot No.43/111-D out of Survey
No.825 (part) at Village Ambivali admeasuring 779.62 square meters
on 15.06.1985. As per the terms and conditions of the Agreement of
grant, Petitioner - Society was to construct the building on the said plot
of land within two years from the date of handing over possession.
Possession was handed over to Petitioner - Society on 20.09.1985 and
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thus case of Respondent - State is that construction of building ought
to have been completed on or before 19.09.1987. Petitioner - Society
was unable to complete construction of building within two years.
However steps were taken by Petitioner to construct the building in
1985 as building plans were submitted in 1985 itself but the Planning
Authority namely Bombay Municipal Corporation (for short "BMC") did
not approve the plans due to area discrepancy in respect of land
allotted to Petitioner - Society. After much persuasion and steps taken
to resolve Petitioner's difficulty, it was gathered that there was a DP
Road to the extent of 130 square meters passing through the plot
allotted to Petitioner - Society which resulted in area discrepancy due
to which plans filed by Petitioner - Society were not sanctioned.
3.3. On 01.02.1990, Additional Collector issued letter to BMC
granting benefit of 60 feet DP Road passing through the plot allotted to
Society and also permitted Society to submit letter for extension of
time to complete construction of building. This was because building
plans were approved by BMC and Commencement Certificate (CC) was
granted to Society to complete construction of the building later after
survey and measurement was effected. It is seen that on 19.07.1989
followed by a second representation dated 28.12.1989, request was
made by Society to Collector for measurement and demarcation of its
boundaries. It is only on 16.09.1989, Petitioner - Society's plot was
surveyed, measured and certified for the first time and it showed that
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Society was holding plot admeasuring 780.04 square meters.
3.4. On 12.01.1990, Petitioner - Society filed letter seeking
extension of time for completing construction. In that regard, it is seen
that Petitioner - Society deposited sum of Rs.26,100/- with the BMC as
per order dated 16.03.1999 for revalidation of the approved plans.
Petitioner - Society also deposited sum of Rs.56,095.51 with State
Government towards land cost and development charges alongwith a
further deposit of Rs.2,90,000/- with BMC for development of
infrastructure, I.O.D., water deposit, electricity deposit, staircase
premium etc.. That apart, Petitioner - Society also paid sum of
Rs.5,50,000/- to the Contractor and liaisoned Architect for completing
construction work and have been regularly paying BMC Assessment
Tax and Revenue Tax in respect of the allotted plot and have paid
amount of Rs. 2,00,000/- till date.
3.5. It is seen that one of the reason as to why the delay occurred
was due to the communal riots in 1992 - 1993 when houses of 12
Members of the Society were completely ransacked and entire record
of Society stored in Society's office and Chairman's office was
completely destroyed. Society reconstructed the entire record and
made Application pursuant to which permission was granted
resultantly leading to delay in completing construction. Society
Members also faced the ignominy of not been able to raise further loan
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and borrowings from the Bank since plans were not revalidated and
had expired for quite some time. In the meanwhile, it is seen that
Society was issued show cause notice dated 09.11.1998 by Collector as
to why the said allotment of plot should not be resumed by Collector
in view of construction of Society building not been completed within
the stipulated prescribed period of two years and Society having
breached condition No.7 of Agreement of grant dated 15.06.1985.
3.6. Society filed its Reply dated 16.11.1998 and hearing was
granted on 17.11.1998, pursuant to which Collector passed the
impugned order dated 06.03.1999 resuming the said plot and directed
Petitioner - Society to hand over physical possession of the same
alongwith all improvements thereon.
3.7. Being aggrieved, Petitioner - Society filed Statutory Appeal
before Additional Commissioner, Konkan Division. By order dated
17.07.1999, Additional Commissioner, Konkan Division upheld the
order passed by Collector of resumption of plot by upholding the
ground that Society had breached condition No.7 of original grant
document and admittedly did not construct building of Society within
the stipulated period of two years.
3.8. Being aggrieved, present Petition was filed on 23.09.1999.
Order passed by Additional Commissioner, Konkan Division was
stayed. Rule was issued on 16.08.2000. When Petition was heard
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previously, directions were passed to State Government to consider the
Statutory Appeal and accordingly in compliance of twin orders dated
23.08.2012 and 10.09.2012, the Additional Chief Secretary (Revenue)
Government of Maharashtra heard Petitioner and passed order dated
14.09.2012, inter alia, upholding the twin orders passed by Collector
(06.03.1999) and Additional Commissioner, Konkan Division
(17.07.1999).
3.9. Hence, the present Writ Petition.
4. Mr. Dewal, learned Advocate for Petitioner - Society would
submit that Society was granted the subject plot of land on inalienable
and impartible tenure as Occupant Class - II under the Maharashtra
Land Revenue Code, 1966. He would submit that the land was
sanctioned and granted to Petitioner - Society under the Backward
Class Co-operative Housing Society Scheme which was the old Post
War Rehabilitation (PWR) Scheme 219 for which Society was eligible
for concession provided land was utilized for housing of members of
the Society.
4.1. He would submit that the grant document dated 15.06.1985
is appended at Exhibit 'B' - page No.16 of Petition perusal of which
would reveal that one of the condition stipulated therein was that
Petitioner - Society was to use the said land and construct residential
building within three years from the date of possession. He would
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submit that Society took immediate steps, but it was realized that there
was discrepancy in the area of land which was allotted to Society as
against the allotment order for which Society had filed representation
with the concerned Department. He would submit that in the event of
breach of any condition the grant in clause 17 provided the remedy
and allowed Society to remedy the breach within a period of 6 months
from the date of issue notice by Collector for the said breach. He
would submit that breach in the present case occurred due to a
genuine reason in as much as despite Society submitting its building
plans in the year 1985, Planning Authority namely BMC did not
approve the same plot due to area discrepancy which was resolved
only after Society's plot was surveyed and measured and report dated
16.09.1989 was filed certifying that plot held by Society admeasured
784.04 square meters. He would submit that, apart from above,
Society also faced the problem about area discrepancy due to the 130
square meters 60' DP Road passing through the plot. He would submit
that after repeated representation, it was only on 01.02.1990 that
Additional Collector addressed letter to BMC by giving FSI benefit of
the DP Road to Society by virtue of which Society was allowed to
submit letter for seeking extension of time to complete construction.
4.2. Thirdly he would submit that when the aforesaid permissions
were procured and building of Society was built in 1992 - 1993
communal riots affected Members of Society in view of its situation
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and location, resultantly leading to members abandoning their houses
and rushing to their villages to protect their lives. He would submit
that it was only after a period of one and half year when Members
returned, they found that their houses were completely ransacked and
destroyed including all records of Society from the Society's office.
4.3. He would submit that it is only after the aforesaid incidents
that Society Members resurrected themselves and obtained fresh
permissions pursuant to which they deposited all requisite statutory
amounts with the Competent Authority towards revalidation,
premium, scrutiny fee, contractor fee etc.. He would therefore submit
that in view of conditions contained in the grant document dated
15.06.1985, condition stipulated in clause 7 thereof requiring the
Society to complete construction of building within 3 years from date
of possession cannot be strictly viewed against the Society in view of
the aforesaid reasons and most importantly the fact that Society was
eligible to make Application for extension of time under clause 17 of
the same Agreement of grant and in the peculiar facts and
circumstances of the present case. He would therefore submit that the
twin orders dated 06.03.1999 and 17.07.1999 passed by the Statutory
Officers alongwith the subsequent order dated 14.09.2012 passed by
the State are all required to be quashed and set aside.
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5. PER CONTRA, Ms. Chipade, learned AGP appearing for the
State and its Statutory Officers would draw my attention to the
Affidavit-in-Reply filed by Ramakant Vasant Bhosale, Secretary to the
Collector dated 24.11.2000 appended at page No.49 of the Petition
and contend that there is an admitted breach by Society in respect of
condition stipulated in clause 7 of the grant document dated
15.06.1985 whereby Society did not complete construction of building
for its Members within the stipulated period of 3 years. She would
submit that building's plans were approved in the year 1989 - 1990
and it was granted CC on 01.11.1989 despite which Society did not
complete construction. She would submit that Society is guilty of
delay and laches since it requested the Corporation for demarcation of
boundaries of the subject plot in the year 1989 without seeking
extension of the time for completion of construction.
6. She would submit that Society ought to have approached for
extension within a period of six months as stipulated in clause 17 after
the period was over, but in the present case there were delay of about
3 years which constituted a clear breach of terms of the grant. In that
view of the matter, she would submit that orders dated 06.03.1999
and 17.07.1999 are required to be upheld alongwith the order dated
14.09.2012 and the Petition be dismissed.
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7. I have heard the submissions made by Mr. Dewal, learned
Advocate for Petitioner and Ms. Chipade, learned AGP for Respondent
- State with their able assistance perused the record of the case.
Submissions made by the learned them have received due
consideration of the Court.
8. At the outset, it is seen that the subject plot of land has been
allotted to the Society under a special scheme of Government namely
the Post War Rehabilitation Scheme 219 under the Backward Class Co-
operative Housing Society Scheme. It is seen that it is true that Society
was unable to complete construction within the stipulated period of 3
years as stated in the grant document, but it cannot be said the Society
derelicted and was responsible for the same.
9. Record shows that after possession was handed over on
20.09.1985, Society has immediately filed building plans in the year
1985 itself. Society was allotted plot No.43/111-D out of Survey
No.825 (part) at village Ambivali. It is seen that BMC did not approve
the area statement and raised a query with respect to area allotted to
Society in view of the reservation of 60' DP Road area of 130 square
meters passing through the said plot of Society.
10. In view of BMC not approving building plans submitted in
the year 1985 Society was left to represent and espouse its cause for
the above grievance. Record clearly shows that by letters dated
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19.06.1989, 11.07.1989, 28.12.1989 and 12.01.1990 Society applied
to the Collector, Bombay Suburban District for extension of time for
construction as per condition No.7 in view of genuine difficulty and
problems faced by Society pertaining to area discrepancy resulting in
non-approval of the building plan.
11. It is also seen that the building plan of Petitioner - Society
was approved in the year 1989 - 1990 and CC dated 01.11.1989 was
issued to Society pursuant to demarcation of area granted to Society.
It is seen that since construction was not completed, the Society once
again sought extension of time by letter dated 27.01.1983 for
completing construction. One of the reasons why this extension of
time was sought was due to the peculiar situation which Members of
the Society found themselves in. It is seen that during the 1992 - 1993
communal riots, Members of the Society had to abandon their houses
due to the riot situation and location of Society building and had to
flee from their houses for safety. It is also an admitted position that
Members of the Society returned after a period of one and half year
only to find that their houses were ransacked and most importantly
entire record of Society maintained in the Society's office was
completely vandalized and destroyed.
12. It is in this context that Members of the Society were not in a
position to complete construction of the building and therefore by
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letters dated 25.11.1994 and 02.01.1996 they repeatedly applied for
extension of time. The order dated 06.03.1999 passed by Collector for
resumption of allotted plot when seen is a cryptic order. All that the
order mentions is violation of condition No.7 namely condition
requiring construction of building by Society within a period of 3 years
and therefore land is directed to be resumed.
13. It is seen that the only reason offered in the said order is that
Petitioner - Society had no difficulty in getting the time period
extended, but they did not apply for extension. This specific reasoning
by Collector in order dated 06.03.1999 is contrary to the record of the
case. It is prima facie seen that Society has applied for extension of
time on 7 different occasions in view of the aforesaid genuine
difficulties faced by Society which has been alluded to herein above.
14. It is only in this context that Collector has passed the
impugned order dated 06.03.1999. The said order has been upheld by
the Additional Commissioner, Konkan Division in Statutory Appeal by
assigning the same reason. It is seen that both the Authorities below
have failed to consider the fact that plans of the Society were
submitted in the first instance in the year 1985, but they were not
approved due to area discrepancy which was resolved by the
Additional Collector only in the year 1990. The letter dated
01.02.1990 addressed by Additional Collector to BMC categorically
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states that Society is given the benefit of 60' DP Road by allowing
Society to use the FSI of the said road and Society was also specifically
permitted to submit letter for extension of time to complete
construction. This letter by Additional Collector has not been taken
cognizance of by Collector while passing the order dated 06.03.1999.
It is further seen that plans filed by Society were revalidated after the
area of the Society was surveyed, measured and certified by report
dated 16.09.1989 pursuant to which Society paid all statutory dues
namely amount of Rs.26,100/- towards revalidation fees and all such
necessary amounts which are referred to and alluded to herein above.
15. Record also shows that members of Society faced issues in
obtaining loans from Bank and financial institutions and had applied to
HUDCO financial organization for loan of Rs.20 lakhs for completing
construction. It is also seen that in the event if there was a breach of
any condition of the Agreement for grant dated 15.06.1985 clause 17
of the same gave an opportunity to the Society to remedy the said
breach. The aforesaid issues have not been considered at all by both
the Authorities as well as the State Government.
16. Be that as it may, by twin orders dated 23.08.2012 and
10.09.2012 this Court allowed Society's representation to be
considered by the Competent Authority namely State. The Society
made a fresh representation dated 30.08.2012 seeking certain
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additional demands, inter alia, pertaining to the Society been allowed
to enroll 30% open category members instead of 10% and 20% of the
commercial use of land be allotted to Society. The said representation
has been rejected by State Government being new demands and not in
consonance with the original grant document dated 15.06.1985. After
perusing the record and the fact that Society faced genuine difficulty
which is narrated herein above and most importantly plans of Society
having been revalidated by BMC and Society having deposited all the
statutory dues. Passing of order dated 06.03.1999, in my opinion, is
not only harsh but arbitrary and high handed in the given facts. The
difficulties faced by Society were known to the Authorities, the said
difficulties were also documented. The said difficulties were not on
account of the conduct of Society, but they emanated from allotment
of the subject plot of land made to the Society. It is seen that BMC did
not approve building plans submitted by Society in the first instance in
the year 1985 due to area discrepancy which was resolved only in the
year 1989 pursuant to which Society paid further amounts for
revalidation of earlier building plans and also deposited all statutory
dues. If such was the case, then the same ought to have been
considered by Collector while passing order dated 06.03.1999. There
is a complete go by given by the Collector as also the Appellate
Authority i.e. the Additional Commissioner while passing orders dated
06.03.1999 and 17.07.1999 to the above facts and therefore in that
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view of the matter, the aforesaid twin orders are not sustainable in
law. They are required to be interfered with and are quashed and set
aside.
17. State Government has filed Affidavit-in-Reply dated
13.01.2012 of Principal Secretary stating that if Petitioner - Society
files the Statutory Appeal against the order of the Additional
Commissioner, the State Government shall consider the case of the
Petitioner's in the light of the existing Government Resolution dated
21.11.1957 and the decision will be taken at the Government level
within 6 months after filing of the Appeal. It is seen that the said
Affidavit also refers to special factors which prevented the Members of
the Society from constructing the building within the stipulated period.
The said Affidavit also considers the fact that on the basis of their
income, hardships and other relevant considerations, members /
Society may have to pay penalty as decided by the State Government.
If the Members of the Petitioner - Society desire to construct on the
said plot allotted to them, they can apply to the State Government for
seeking such permission. It is therefore directed that if any such
Application is made by the Society to the Government, the State
Government is directed by this Court to decide the said Application on
the basis of the policy framed by the Government as contained in the
Government Resolutions dated 21.11.1957 and 25.05.2007 as
applicable strictly in accordance with law.
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18. The State Government is directed to consider the genuine
difficulties of the Members of the Society, if at all any penalty is to be
levied on them and shall consider the same in the light of the above
facts and circumstances.
19. In so far as the order dated 14.09.2012 passed by the State
Government is concerned, that order upholds the order dated
17.07.1999. However reasons given in that order take in account the
additional demand made by the Society. The said additional demand
made by Society is fourfold namely land be allotted to them at the
applicable rate during the year 1985, Society be allowed to enroll 30%
open category instead of 10%, Society be allowed 20% of land use for
commercial purpose and Society be permitted to include MIG / HIG
open category members as per prevailing / admissible FSI. In so far as
these four additional demands are concerned, the order dated
14.09.2012 has been correctly passed since the original terms of grant
cannot be changed. In so far as upholding orders dated 06.03.1999
and 17.07.1999 are concerned, the order dated 14.09.2012 is required
to be interfered with and to that extent the said order is quashed and
set aside. Resultantly Petition succeeds and stands allowed in terms of
prayer clause 'a'.
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20. Writ Petition is allowed and disposed.
21. However, there shall be no order as to costs.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.09.03
11:47:32 +0530
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