Bombay High Court
The State Of Maharashtra And Others vs Kamal Bulchandani on 13 July, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
1/39 RPWL 27315-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 27315 OF 2024
IN
WRIT PETITION NO. 1462 OF 2019
1. The State of Maharashtra, through the
Government Pleader, PWD Building, High
Court, Mumbai.
2. The Collector of Mumbai, having its
office at Old Custom House, Shahid .. Petitioners
Bhagat Singh Road, Fort, Mumbai.
3. The Sub Registrar of Assurances, Mumbai
City, having its office at Old Custom
House, Shahid Bhagatsingh Road, Fort,
Mumbai.
Versus
1. Kamal R. Bulchandani, having its office
at 709, 7th floor, Raheja Centre, Free
Press Journal Marg, Nariman Point,
Mumbai.
2. Loshika K. Bulchandani, 709,
7th floor, Raheja Centre, Free Press .. Respondents
Journal Marg, Nariman Point, Mumbai.
WITH
CONTEMPT PETITION NO. 33 OF 2023
IN
WRIT PETITION NO. 1462 OF 2023
Kamal R. Bulchandani and anr Petitioners
Versus
The State of Maharashtra and ors Respondents
Tilak
2/39 RPWL 27315-24.doc
...
Dr. Milind Sathe, Advocate General with Ms.Prachi Tatke and
Ms. Fatima Lakdawala, AGP for petitioner in RPWL
No.27315/2024 and for respondent in CONPW 33/2023.
Mr. Kamal Bulchandani, respondent no.1 in person in RPWL
27315/2024 and petitioner no.1 in CONPW 33/2023.
Mr.Anurag Dubey for respondent no.2 in RPWL 27315/2024
and for petitioner no.2 in CONPW 33/2023.
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
RESERVED ON : 5th MAY, 2026
PRONOUNCED ON : 13th JULY, 2026
JUDGMENT (Per Bharati Dangre, J)
1 The Review Petition filed by the State of Maharashtra
seek review of the order dated 13/12/2019, which disposed of
Writ Petition No. 1462/2019 filed by Mr.Kamal and Loshika
Bulchandani. The disposal of the Writ Petition was based upon
a concession expressed by the Government Advocate, who did
not dispute the position that in terms of the decision dated
29/9/2009 passed in Writ Petition No.713/2001 ( Aspi Chinoy
& Anr. Vs. State of Maharashtra and ors) 1, the petitioners were
entitled for a refund of Rs. 25,38,518/- which was deposited by
them on 24/8/2018.
The order also record that though a Special Leave Petition
(SLP) was filed before the Apex Court against the said decision
1 2009 SCC OnLine Bom 2541.
Tilak
3/39 RPWL 27315-24.doc
and the direction of the Division Bench for refund was stayed, it
was indicated that if the State did not succeed, the respondents
would be entitled for the interest of the amount deposited.
Thus, granting a declaration in favour of the petitioner as well
as the respondents, to the effect that they would be bound by
the decision of the Apex Court, and the rate at which interest, if
any, granted by the Supreme Court would also enure to their
benefit, it was clarified that if the decision if overruled by the
Supreme Court, that would be the end of the matter.
It is this order which would entitle the petitioners for
refund of the amount deposited towards transfer charges, the
State of Maharashtra filed a Review Petition in August 2024,
seeking review of the order and for staying the execution and
implementation of the said decision.
2 Since the Review Petition was also accompanied with the
application for condonation of delay, and the delay being
condoned by order dated 13/1/2026 upon the State of
Maharashtra showing sufficient cause, we have heard Dr. Milind
Sathe, learned Advocate General for the State and Mr. Kamal
Bulchandani who marked his appearance in person for himself
as well as Ms. Loshika Bulchandani, the original petitioner no.2.
On 11/3/2026, we have heard the submissions of the
learned Advocate General, who urged before us that the relief
granted in favour of Mr. Bulchandani was based on an
inadvertent statement made by the counsel for the State, as it
was the claim of Mr.Bulchandani that the facts in WP No.
Tilak
4/39 RPWL 27315-24.doc
1462/2019 were identical to his case and the relief granted in
his favour shall also be extended to the petitioners.
We also heard the party in person, who opposed the
Review Petition and tendered the documents on which he
placed reliance which included the Government Resolutions
and the precedents on which he wanted to rely.
Responding to the submission of the learned Advocate
General, Mr.Bulchandani also tendered across the bar his
response to the said contentions.
3. The contentions in the Review Petition are to be
appreciated in the backdrop of the relief sought in Writ Petition
No.1462/2019 filed by Mr.Kamal Bulchandani and Ms.Loshika
Bulchandani, the joint owners of Office No. 709, 7 th floor,
Raheja Centre, Nariman Point, Mumbai, who claimed to have
purchased the same from M/s. N.V.R. Trust, under a duly
registered Sale Deed dated 12/9/2018.
The petitioners claim that M/s.N.V.R. Trust was the owner
of the said unit, and it agreed to sell and transfer it to the
petitioners jointly, its shares, together with the ownership
rights, title and interest for valuable consideration. The
agreement, inter alia, provided for obtaining a No Objection
Certificate (NOC) from the office of the Collector, Mumbai, as
contemplated under Government Resolution dated 25/5/2007,
failing which the sale deed would not be accepted for
registration by the Sub-Registrar of Assurances, Mumbai.
Tilak
5/39 RPWL 27315-24.doc
Accordingly, the petitioners and the Trust filed an
application to the Collector, who issued a demand notice on
20/8/2018 demanding a sum of Rs.25,38,518/- towards
transfer charges as a pre-condition for grant of NOC.
The petitioners complied the said stipulation by
depositing the amount through M/s.N.V.R. Trust, by RTGS
transfer and intimated about the same to the Collector, who
granted an NOC on 5/9/2018.
Pursuant to the said NOC, a Deed of Sale was executed on
12/9/2018 by which the right, title and interest in Unit No.709
in Raheja Centre was transferred by way of ownership in favour
of the petitioners jointly and this was followed by its
registration.
4. The petitioners claimed that the Government Resolution
dated 25/5/2007 is not applicable to the transaction, and
therefore, the demand letter dated 20/8/2018, demanding the
transfer fee as a pre-condition for the issuance of NOC, was
illegal and issued without authority of law.
It was specifically pleaded by the petitioners that the
Government lands are allotted in favour of the Co-operative
Housing Societies pursuant to the powers vested in the State
Government under Section 40 of the Maharashtra Land
Revenue Code, 1966 (MLRC) and Maharashtra Land Revenue
(Allotment of Government’s Land) Rules, 1971, and on the
terms and conditions provided under G.R dated 9/7/1999,
modified and consolidated under G.R. dated 25/5/2007 at
Tilak
6/39 RPWL 27315-24.doc
concessional rate for development of buildings and residences.
The G.R according to the petitioners is applicable where the
land is allotted by the State to the Co-operative Housing
Societies at concessional rates and not applicable to the sale
and transfer of the flats in commercial building constructed on
plots not allotted to a Co-operative Housing Society and not at
a concessional rate.
Reliance was placed upon the decision delivered by this
Court in Writ Petition No.713/2001 and it was therefore,
pleaded that the case of the petitioners was governed by the
said decision.
Without prejudice to the aforesaid contention, it was also
urged that the transfer by a member of his shares in a Co-
operative Society do not constitute assignment, transfer, under-
letting or parting with possession of the demised premises/land
on which building has been constructed. In short, the
petitioners pleaded that since the amount deposited by the
petitioners pursuant to the demand being raised, did not apply
to the case of the petitioners, the amount deposited as transfer
fee shall be refunded back. The prayer was also made for
quashing and setting aside of the demand letter dated
20/8/2018 and the NOC dated 5/9/2018, to the extent that it
confirmed the levy of premium and collection thereof.
5. The thrust of the petitioners’ argument was the decision
of the Division Bench delivered on 29/9/2009 in case of Aspi
Chinoy & Anr Vs. State of Maharashtra.
Tilak
7/39 RPWL 27315-24.doc
Through the said petition, the petitioners raised a
challenge to the letter dated 27/6/2000 addressed by the
Collector to the Sub-Registrar, Bombay City, when he directed
that before registering a transaction in respect of the flats in the
building situated at BBR, Block 3 and 5, Nariman Point and
Cuffe Parade, the person approaching for registering the
transaction should be asked to contact the office of the
Collector and obtain necessary certificate from him. Pursuant
to this communication when the petitioner no.1 approached the
Sub- Registrar for registration of the agreement, he declined to
register the document and asked the petitioner no.1 to secure
No Objection from the Collector.
This communication being subjected to challenge, it was
urged that in June 1971, a notice was issued by the State
Government inviting offers for the lease of certain plots from
Block V, Back Bay Reclamation Estate and M/s. Aesthetic
Builders Private Limited made an offer with the object of
constructing a building, in which it proposed to construct and
sell flats on ownership basis. The plot was therefore, bidded on
the basis that the purchasers of the flats would form a co-
operative Society to whom the rights of the Company would be
transferred. The State Government accepted the bid and
agreed to grant lease of the plot in favour of M/s. Aesthetic
Builders.
A twenty two storey building named ‘Jolly Maker
Apartment No.3’ was constructed by the Company and the flats
Tilak
8/39 RPWL 27315-24.doc
were sold to various parties on ownership basis and the
Occupation Certificate in respect of the building was issued on
12/12/1975. Subsequently, the flat purchasers in the building
formed a Co-operative Society which was duly registered under
the Maharashtra Co-operative Societies Act, 1960.
However, it was the common ground that a lease deed as
contemplated by the terms of allotment was not executed by
the Government either in favour of the Company or in favour of
the Co-operative Society.
It is in these facts the petitioner no.1 entered into an
agreement to purchase rights to occupy flat no.211 along with
five shares, but when he approached the Sub-Registrar for
registration, the registration was declined and the petitioner
no.1 was asked to secure No Objection from the Collector, but
the petitioners pleaded that there is no necessity for any No
Objection from the Government or the Collector and the
petition came to be filed.
6. The grievance of the petitioners received consideration by
formulating an issue whether the resolution of the State
Government issued in the year 1983 and 1999 can make it
imperative for the petitioner no.1 to seek Collector’s previous
consent for transfer.
With reference to the Government Resolution of 1999
which was merely a re-iteration of Government Resolution of
1983, it was noted that by the said resolution, Government laid
down the principles of grant of Government land under the
Tilak
9/39 RPWL 27315-24.doc
Maharashtra Land Revenue (Disposal of Government Lands)
Rules, 1971 read with Section 40 of the MLRC. The said
Government Resolution was accompanied with Annexure ‘A’ and
‘B’, ‘A’ providing for qualifications for approval of members in
Co-operative Housing Societies seeking Government lands on
payment of concessional occupancy price, lease rent, whereas
‘Annexure B’ included the term ‘Terms and Conditions of grant
of Government Lands to Co-operative Housing Societies”.
Reading of the said resolution lead to an inference that
the Government Resolution is applicable when the land is
granted in favour of the Co-operative Housing Society at
concessional rate, but there was no question of applicability of
the resolution in the case in hand, as the land was never
allotted in favour of a Co-operative Housing Society, nor the
allotment was sought by the Co-operative Housing Society. It
was noted that the power to grant lease of the land is contained
in Section 40 of the Maharashtra Land Revenue Code and it
was the power of the State Government to dispose of any land,
which is its property, on such terms and conditions as it deem
fit.
On a conjoint reading of the Government Resolution
along with the MLRC and the Land Disposal Rules, the Division
Bench of this Court specifically observed thus :-
“Grant of lease of Government land by the Collector is in
accordance with the Rules framed by the State
Government. Section 40 saves power of the Code.
Government to dispose of the Government land. It is clear
from the Government Resolution that when the
Government grants lease under Section 38 of the Code orTilak
10/39 RPWL 27315-24.docdisposes of the land under Section 40 of the Code, it is
done under the Maharashtra Land Revenue (Disposal of
Government Lands)”
7. Since the land was a foreshore land in the city of Mumbai,
even the provision of Section 295 found in Chapter XIV of the
Code which was also invoked, to note that the said provision
empower the Collector, with the sanction of the State
Government to dispose of any lands or foreshore vested in State
Government. It was therefore, noted that the power to frame
conditions for allotment of foreshore and other lands in
Bombay is given to the Collector, who does so, with the
sanction of the State Government and therefore, Land Disposal
Rules will not apply to the allotment of foreshore under Section
295 which was a special provision.
8. On threadbare consideration of the power of the State
Government along with the Government Resolutions which
only governed the situation contemplated therein, the following
order was passed :-
“Taking overall view of the matter, therefore, in our opinion,
the petition has to be allowed as the State Government does
not have right to ask the petitioner no.1 to seek its previous
approval before entering into the transaction. Therefore, it does
not have any power to demand any premium before
transferring the flat. The petition is allowed. It is held that for
transfer of flat no. 211 in favour of the petitioner no.1, no
permission either of the State Government or of the Collector
is necessary either under the terms and conditions or under
1983 s and 1999 s Government Resolutions. Rule is made
absolute accordingly. Pursuant to the interim order dated
9.4.2001, the petitioner no.1 has paid the amount of premium
which was demanded. In the interim order it was directed that
in case the petition succeeds, the amount of premium would be
refunded to the petitioner no.1 with interest at the rate of 8%
per annum from the date of deposit till refund and payment
Tilak
11/39 RPWL 27315-24.doc
was to be made within a period of two weeks from the date of
disposal of the writ petition. Pursuant to that order, we direct
the Respondent no.2 to refund the amount deposited by the
petitioner no.1 in accordance with the interim order dated
9.4.2001. No order as to costs. At the request of the learned
Counsel appearing for the Government and Collector, it is
directed the respondent no.2 may refund the amount after
expiry of period of Sixteen weeks from today.”
This decision was challenged by a Special Leave to Appeal
before the Apex Court and leave was granted on 15/7/2011.
However, the Appeal was finally decided by the Hon’ble Apex
Court on 30/9/2022, by taking note of the undisputed fact of
allotment of the flat in question to the builder in the year 1972
which was leased for 99 years with a requirement of
construction of a building on the plot costing not less than
Rs.10 lakhs to be used for private residences.
The Apex Court took note of the undisputed facts and also
referred to the Government Resolution of 1983 and 1999 which
was applicable to Co-operative Societies to whom the
Government lands were sanctioned on concessional rate.
The peculiar facts of the case which made the
Government Resolution inapplicable was specifically noted as
below :-
“14. It is further to be noted that though Section 40 of the Code
saves the power of the Government with respect to disposal of lands,
Section 295 of the Code specifically deals with disposal of lands and
foreshore. It is not in dispute that the land in question is a reclaimed
land and therefore, is covered under Section 295 of the Code. It is
also not in dispute that though in accordance with 1983 Resolution
and 1999 Resolution, the State Government is empowered to allot
land to the co-operative societies of different categories on
concessional rates, the land in question has been allotted to the
builder who had participated in the bid in response to a public notice.
The land was allotted to the said builder after he was successful in theTilak
12/39 RPWL 27315-24.docbidding process. As per the said terms and conditions, which
specifically deal with lease of plots from Block V Back Bay
Reclamation, the said builder was required to construct the building
on the said land costing not less than Rs.10 lakhs and to sell the same
for the purpose of private residence. It is after the said builder sold
the flats to the individual buyers, they formed a Co-operative Society
in the year 1977 in which Society the ownership of the land came to
be transferred by the said builder. It could thus be seen that, the
present case is not a case where the land is allotted to a Co-operative
Society by the Government. The land was leased out to the builder,
who was the successful bidder and after the ownership of flats was
transferred to the private individuals, a Society of the flat owners was
formed.
15. In that view of the matter, in the peculiar facts and
circumstances of the case, we do not find it necessary to consider the
submissions advanced by Shri Naphade. As already discussed
hereinabove, we find that in the facts of the present case, since the
land was not allotted to a society but to a builder on lease, who has
constructed flats for private individuals, who have subsequently
formed a Co-operative Society, the 1983 Resolution and 1999
Resolution would not be applicable to the members of such a society.
We are therefore not inclined to interfere in the present appeals.”
The Appeals filed by the State Government were
dismissed and the interim stay of the direction for refund of the
amount was vacated.
Once again, the State Government filed a Review Petition
(Civil) Diary No. (S) 42879/2023 and the Review Petition was
also dismissed by the Apex Court on the ground of delay and on
merits by order dated 5/3/2024.
9. It is this decision which was pressed into service by
Bulchandanis and the Division Bench while disposing of the
Writ Petition accepted the statement made by the Government
Advocate that the case of the petitioners is governed by Aspi
Chinoy’s case and since the SLP was pending before the Apex
Court, the order was passed making the decision subject to the
outcome of the SLP.
Tilak
13/39 RPWL 27315-24.doc
10. The State Government has sought review of the said
decision through the said Review Petition and the learned
Advocate General Dr. Sathe in support of the Review Petition,
has placed before us the chronology of events leading to the
filing of the Writ Petition by the Bulchandanis, raising a
challenge to the demand notice of 20/8/2018 and the NOC
dated 5/9/2018, on the premise that such demand made
pursuant to the Government Resolution dated 25/5/2007 was
applicable only to lands allotted to co-operative housing
societies. It is submitted that the petitioners urged that, their
case was fully covered by the judgment of the High Court in
case of Aspi Chinoy & Ors (WP No. 713/2001) decided on
29/9/2009. The third premises on which the petitioner rest his
case is the absence of any authority in law, empowering the
State Government to demand such transfer fees/premium.
Dr. Sathe would point out the essential features on which
the decision in case of Aspi Chinoy rested viz. (i) allotment
orders not authorizing any levy or transfers (ii) the Government
Resolutions in force i.e. 1983 or 1999 resolutions are applicable
only for allotment of land at concessional rates to co-operative
housing societies and (iii) there was no authority in law or
under contract (allotmment)/grant/leave etc, to recover
transfer fee or premium.
11. According to the learned Advocate General, after the
decision in case of Chinoy, there is a change in the statutory
regime in form of Section 37A introduced in the Maharashtra
Tilak
14/39 RPWL 27315-24.doc
Land Revenue Code (by 2nd Amendment Act, 2012) which was
published in the official gazette on 3/3/2015 and he would
submit that it is an all encompassed provision, which authorise
the State Government to recover such premium or charge or
share of unearned income by ‘general or special order’. Thus,
he would submit that demand for transfer charges in respect of
any transfer, in respect of any land is now statutorily sanctioned
by authority of law as required under Article 265 of the
Constitution of India. He would also place reliance upon the
decision of the Division Bench of this Court in Hindustan
Unilever Limited & Anr Vs. State of Maharashtra and ors, 2
when the constitutional validity of Section 37A has been
upheld. In addition, he would also submit that a proviso came
to be added in Section 259 in the year 2016, that authorises
the State Government to levy premium/transfer
charges/unearned income from foreshore lands.
In short, it is the submission of the learned Advocate
General that since in the present case, it is not disputed that the
land is situated in Mumbai and the grant of the land was made
by the State Government under the provisions of Maharashtra
Land Revenue Code and the transfer was sought to be effected
of a flat in a building subsequent to the introduction of Section
37A in the Code, the prior Governmental approval is required
before the sale is to be effected and for such approval, it is open
for the State Government to levy transfer fees/premium.
2 (2018) 4 Bom CR 204
Tilak
15/39 RPWL 27315-24.doc
According to him, since Section 37A mandate that
transfer fee/charges may be levied by the Government, as may
be specified by ‘general or special order’ issued by the State
Government, he would invoke the provision contained in G.R
dated 7/7/2017 which prescribe the rate of premium/charges
payable on the transfer of units and this include commercial/
industrial use in co-operative housing societies. It is his specific
submission that the said Government Resolution is issued to
give effect to the policy underlying section 37A and would
constitute ‘general order’ which is applicable across the State to
all transfer on such lands which involve a co-operative Society.
According to Dr. Sathe, the omission in the 2017 Resolution to
refer to Section 37A is immaterial as it is a well settled position
in law that omission to refer to the source of power is not
determinative of the legal status of the instrument and it shall
not deprive the instrument of its efficacy, as long as there exist
a power in issuing such an order. For this purpose, he would
rely upon the decision of the Apex Court in case of P.K.
Palanisamy Vs. N. Arunmugham,3and Ram Sundar Ram Vs.
Union of India,4
It is, therefore, his submission that since the existence of
the power in the State Government is not disputed and it can be
traced to the source available in law, the reference to the said
provision in the 2007 Resolution is immaterial.
3 (2009) 9 SCC 173
4 (2007) 13 SCC 255
Tilak
16/39 RPWL 27315-24.doc
Without prejudice to this contention, he would submit
that even if this resolution is not to be construed as a ‘General
Order’, the demand for payment of charges made by the State
Government qua the petitioner, as a condition for grant of
permission for transfer under Section 37A constitute a ‘Special
Order’ and therefore, when the power is traceable to a statutory
provision, the challenge according to Dr. Sathe, is unfounded
and merely because the Advocate appearing for the State
Government gave a concession, being unmindful of the
statutory changes, the judgment is sought to be reviewed and
this Court having already condoned the delay, the matter
deserve its consideration on merits, is the specific submission.
12. Mr.Bulchandani vehemently opposed the Review Petition,
as according to him, in case of grant of land, there can be no
recovery of premium or charge nor there is any question of
seeking permission and it is his specific contention that the
permission from the State Government is required on seeking
transfer of such granted land on terms and conditions
stipulated in a special or general order issued under section
37A and the claim for the charge for premium or unearned
income would only contemplate a rise in asset value.
According to him, the Government Resolution do not
amount to a general order and in absence of a ‘General or
Special order’ being passed by the State Government, the
provision contained in Section 37A cannot come into force.
Tilak
17/39 RPWL 27315-24.doc
It is also the contention of Mr. Bulchandani that the land
was granted by the State Government under Section 40 read
with Rule 27 of the Maharashtra Land Revenue Code and the
transfer of flat, even though it is after insertion of Section 37A
could have no bearing on the facts of the petitioners case and
on the applicability of the ratio laid down by the Apex Court in
Chinoy’s case, there is no transfer of land or building or part of
building thereon, or benefits arising therefrom, what is
transferred is only a flat/unit.
He would further submit that Section 40 read with Rule
27 specifically apply to grant of land by the State Government
for residential purposes to Co-operative Housing Societies at
concessional rates, but Section 37A specifically applies to
transfer/sale of land after the land was allotted and allottee
seek permission for transfer of such land. He would further
submit that under Section 40 r/w Rule 27, the ‘unearned
income’ is equated to the loss of revenue to the Government on
allotment of land at concessional rate, and it is relatable to the
increase in the value of assets from the date of allotment to the
date of transfer of such land. Thus, it is his contention that
Section 37A and Section 40 r/w Rule 27 apply at two different
levels.
13. According to Mr. Bulchandani, the explanation appended
to Section 37A in regards to ‘Government land’ to include land
or building erected on such land or part thereof or any right or
any benefit arising out of or share in relation to such land or
Tilak
18/39 RPWL 27315-24.doc
building or part of such land or building, and therefore, sale of
a flat/unit in a building can never be equated with sale of land
or sale of the building or any part thereof. He would rely upon
the decision in case of Principal Commissioner of Income Tax
Vs. Rahul Uday Tuljapurkar,5
In addition, it is also contended by Mr.Bulchandani that in
the instant case, plot was not allotted to Co-operative Housing
Society at concessional rate, but it was allotted to the builder
for building commercial units in an auction bid for which no
permission is required nor can any premium be charged either
u/s.40 r/w Rule 27 and the Government Resolutions or even
under the amended provision i.e. Section 37A, as there is no
‘unearned income’. In light of the authoritative
pronouncements in Aspi Chinoy’s case, it is his submission that
Section 37A cannot apply to the facts of his case.
In short, it is the submission of Mr. Bulchandani that in
his case, there is no question of ‘unearned income’ as the plot
was allotted by commercial bid and it was never allotted to a
Society on concessional rate, but it was allotted at a market
price prevailing at the relevant time and therefore, there is no
question of the Government being entitled to recover the
unearned income. It is therefore, his submission that the
demand notice dated 3/2/2026 demanding the transfer charges
by invoking Section 37A is not a proper invocation of the
statutory provision and he request the Review Petition to be
5 2019 SCC Online Bom 13288.
Tilak
19/39 RPWL 27315-24.doc
dismissed.
14. In light of the counter submissions advanced, we must
refer to the provisions of the Maharashtra Land Revenue Code,
1966, which has defined the term ‘land’ to include benefits
arising out of the land, things attached to the earth or
permanently fastened to anything attached to the earth, and
shares in, or charges on, the revenue or rent of villages or other
defined portions of territory’.
The Code has set out the manner in which the land shall
be dealt with, proceeding on a presumption that all the Lands
vest in the State Government. The Code has classified the
category of lands and has also conferred the power on the
Collector to lease under grant or contract any unalienated
unoccupied land to any person, for such period and for such
purpose and subject to such conditions which may be imposed
and in such a case, the grantee shall be called as ‘a Government
lessee’ in respect of the land so granted.
Section 40 of the Maharashtra Land Revenue Code is the
saving power of the Government which has empowered it to
dispose of any land, the property of the Government on such
terms and conditions as it deem fit. The Maharashtra Land
Revenue Code also contains a provision for government lands
and foreshore and all unoccupied lands within the city of
Mumbai and every unoccupied portion of the foreshore below
high water mark, is deemed to be and declared to be the
property of the State Government, subject to such rights which
Tilak
20/39 RPWL 27315-24.doc
are recognised as legally subsisting.
It is lawful for the Collector under Section 295 with the
sanction of State Government to dispose of any land or
foreshore vested in the State Government subject to such terms
and conditions as may be imposed.
15. In exercise of the power conferred under section 328 and
several other provisions of the Maharashtra Land Revenue
Code, the Government of Maharashtra has also made the
Maharashtra Land Revenue (Disposal of Land) Rules 1971,
which has set out the provisions for grant of land by the State
Government for various purposes which will include the
revenue free grant as well as the norms for disposal of land
including grant of land for residential purpose, housing scheme
to the members of armed forces, persons with disabilities,
government servants etc. Rule 27 is a provision for grant of
land for housing schemes and the same reads thus :-
“27 Grant of land housing schemes :-Building plots may be
granted by the State Government for various housing schemes
undertaken by any housing board, local authority or co-operative
housing society constituted under any law for the time being in
force, in occupancy rights under Section 40 on inalienable and
impartible tenure on payment of such concessional occupancy
price as the State Government may, from time to time fix, regard
being had to the nature of the scheme, and in the case of a co-
operative housing society, to the income o the members, thereof,
such income being ascertained after making such inquiries as the
State Government may think fit to make in this behalf:
Provided that, any land being land situated outside the limits of
the Bombay Suburban District, in the cities of Nagpur,
Aurangabad and Poona and any town having a population on one
lakh or more, may be granted by the Collector under Section 20
read with Section 31 to any co-operative housing society if the
occupancy price of such land determined under sub-rule(3) ofTilak
21/39 RPWL 27315-24.docRule 26 does not exceed Rs. 2[1,00,000], and with the sanction
of the Commissioner if the occupancy price so determined,
exceeds Rs.[1,00,000] but does not exceeds Rs. [2,50,000].
16. In order to give effect to the provisions of the policy
underlying the Maharashtra Land Revenue Code, the Revenue
and Forest Department of the State has issued resolutions from
time to time, and this has covered the grant of land under
Section 40 r/w Rule 27 of the Land Disposal Rules, 1971.
Though the policy governing the grant was immediately
reflected in the Circulars issued in the year 1968 itself, the
Government Resolution of 12/5/1983 is placed before us.
A reading of the same would reveal that for the purpose
of revising the policy regarding grant of government land to the
co-operative societies, in supersession of the earlier orders, the
Government was pleased to issue the policy regarding grant of
land to the Co-operative housing societies throughout the State
of Maharashtra, under Rule 27 of the Land Disposal Rules, 1971
r/w Section 40 of the MLRC.
The resolution contemplated that the Government lands
except from within the city limits of Mumbai, shall be granted
to the Society at its option, either in form of occupancy rights or
leasehold rights, but the lands from Mumbai City will continue
to be granted on leasehold basis as per the policy of the
Government.
The resolution also provided for the claim of priority to
different type of Societies.
Tilak
22/39 RPWL 27315-24.doc
Annexure ‘A’ to the Government Resolution set out the
qualification for approval of members in the co-operative
housing societies seeking lands on payment of concessional
occupancy price/lease rent.
Annexure ‘B’ incorporated the terms and conditions of
grant of Government lands to the co-operative housing
societies, and it prescribe that the Society shall hold the land.
It was clarified that the Society shall hold the land on an
inalienable and impartible tenure as occupant Class-II under the
Maharashtra Land Revenue Code, 1966.
The restrictions were also imposed on the Society as
regards utilisation of the land and its transfer/alienation and
Clause (viii) specifically provide as below :-
“(viii) The Society shall not permit any of its members
to lease or sublet or to give on leave and licence basis or
to transfer the house/flat held by him or her without the
prior written permission of the Collector or the
Commissioner or the Government as the case may be,
and while granting any permission for transfer of
house/flat, Government shall be entitled to recover from
the Society an amount equivalent to 50% of the
difference between the cost of the house/flat charged by
the Society to the approved member and the cost
transferred to a new member.”
17. On 9/7/1999, the Revenue and Forest Department issued
another Resolution, since the existing policy is contained in G.R
dated 12/5/1983 was found to be outdated and it had become
inevitable to make certain modifications.
This Resolution categorized the Societies and accorded
weightage by carving out the percentage to be made applicable
Tilak
23/39 RPWL 27315-24.doc
with reference to the proportion of plots to be allotted and
available for distribution with 5% discretionary quota being
made available to the Government.
Another revision to the aforesaid policy regarding land
allotment to co-operative housing societies came through the
Resolution of 25/5/2007 which was issued with an object of
consolidating for revising comprehensive directives for granting
government land to the co-operative housing societies in
Maharashtra.
The said Resolution prescribed the mechanism for
allotting the land and was accompanied with Annexure ‘A’,
which set out the eligibility criteria for approval of membership
of the co-operative society, willing to acquire the government
land on concessional occupancy, rent/lease rent, whereas
Annexure ‘B’ set out the terms and conditions of allocation of
government lands to co-operative housing societies.
18. The aforesaid Government Resolutions received
consideration from this Court in case of Aspi Chinoy and ors
(supra) who approached the Court, raising a challenge to a
communication from the Collector addressed to the Sub-
Registrar, Mumbai City, directing that before registering the
transaction in respect of flats in the building, situated at BBR
Block No. III and V, Nariman Point and Cuffe Parade, Mumbai,
to contact the office of the Collector and obtain a necessary
certificate.
Tilak
24/39 RPWL 27315-24.doc
The case involved a flat/unit in a twenty two storey
building named ‘Jolly Maker Apartment No.3’ which was
constructed on plot of land from Block V, Backbay Reclamation
Estate which was allotted to M/s. Aesthetics Builders Pvt. Ltd,
made an offer pursuant to a notice issued by the State
Government, inviting offers for lease of certain plots.
19. The offer was made by the Builder with an object of
constructing a building and proposing sale of flats therein on
ownership basis. The plot was bidded on the basis that the
purchasers of the said flat would form a co-operative society to
whom the rights of the Company would be transferred. The bid
was accepted and lease of the plot was granted in its favour,
who carried out the construction and sold the flats therein to
various parties on ownership basis.
One of the flat in the building belong to petitioner no.1
and when he approached the Sub-Registrar of Registration, he
declined to register the transaction on the basis of the
communication from the Collector, and the petitioner adopted a
stand that the whole approach of seeking No Objection from
the Government of the Collector was unwarranted.
The State Government opposed the reliefs in the petition
by submitting that by virtue of the conditions for lease of plot
and in particular, clause 15 and 16 of the memo of terms and
conditions, it necessarily contemplated obtaining previous
permission of the State Government for transfer of the flat.
Tilak
25/39 RPWL 27315-24.doc
Reliance was placed upon the Government Resolution
dated 12/5/1983 and the resolution of 9/7/1999, to submit
that the State Government could claim premium as a condition
for grant of permission for transfer.
It was urged by the petitioner that Clause 15 will not
apply, when a flat owner in the building is transferring his flat
and that Clause 15 contemplated previous permission when the
original lessee transfers the property for the first time. The
Government Resolution of 1983 and 1999 was urged to be
inapplicable as it laid down terms and conditions for grant of
land by the Government on lease in favour of the existing or
proposed co-operative housing society at concessional rate, but
the plot allotted to M/s.Aesthetic was not allotted to existing or
proposed co-operative housing societies but was allotted in
favour of the Company at competitive rate by inviting bids. It
was also contended that the land in question was a foreshore
land for allotment of which a separate and special provision has
been made in the Code in form of Section 295. It was urged
that the Government Resolutions applied to the allotment of
lands which were made under Section 40 of the Code in
accordance with the Land Disposal Rules.
20. The aforesaid submissions were analysed and it was noted
that the land was allotted to the Company, which pursuant to
the permission granted to it, constructed a multi-storey building
on the plot and sold the flats on ownership basis to various
persons. The purchasers formed the co-operative housing
Tilak
26/39 RPWL 27315-24.doc
society and at the relevant time, some of the flats were unsold
and therefore, the Company was also joined as the promoter
and the provision in the by-laws of the Society permitted the
Company to sell the unsold flats.
With reference to the by-laws, it was noted that the title
of the property vested in the Society and the member got the
right to occupy the flat subject to the by-laws of the Society and
since the Society was not a party to the transaction in hand, as
it had stepped into the shoes of the Company, clause 16 was
held to be not attracted. Apart from this, clause 15 which
operated on a lessee, it was held that the lessee was the
Company, but the Society stepped in its shoes and the members
of the society who only owned the shares in the Society and
right to occupy the flats did not step into the shoes of the lessee
and therefore, even Clause 15 was also not attracted. Further,
as far as applicability of the G.R is concerned, it was noted that
the resolutions laid down the principles for grant of land under
the Land Disposal Rules, 1971 r/w Section 40 of the
Maharashtra Land Revenue Code and the guidelines only apply
when (i) a co-operative housing society seek grant of land and
(ii) when the grant of land is sought at concessional rate.
Recording that in the case before the Court, the allotment
was not made at a concessional rate, but it was made after
inviting bids and the land was not allotted to the co-operative
housing society, but it was granted on lease and the Land
Disposal Rules did not apply to foreshore, which was governed
Tilak
27/39 RPWL 27315-24.doc
by Section 295 of the Code, it was held that the embargo of
seeking requisite permission from the Collector before entering
into the transaction did not operate. As a result, the petition
was allowed and the amount of premium which was depositied
by the petitioner under the interim order of the Court was
directed to be refunded @ 8% per annum from the date of its
deposit till refund, which was directed to be made over within a
period of two weeks.
21. Mr.Bulchandani attempted to draw parlance from the
decision in case of Aspi Chinoy (supra) and has relied upon the
striking similarity, involving plot no.214 at Backbay
Reclamation being allotted to Mr. C.L. Raheja of M/s. Fortune
Hotel, an Estate Private Limited, who constructed a commercial
building known as ‘Raheja Centre’ and sold the units to the
purchasers who formed Raheja Centre Premises Co-operative
Society.
Mr.Bulchandani is concerned with sale of unit no.709 and
the vendor M/s.NVR Trust sought NOC from the Government
by relying upon the resolution of 7/7/2017 for permitting
transfer of the premises in his favour. This resulted in the
Collector issuing a demand letter towards transfer charges as a
pre-condition for grant of NOC. The NVR Trust submitted the
transfer fee challan along with an affidavit/undertaking to the
Collector and the Collector issued the NOC on 5/9/2018.
Mr.Bulchandani then questioned the levy and collection of
the transfer charges by submitting that it was under duress and
Tilak
28/39 RPWL 27315-24.doc
he demanded refund of the premium paid and when his request
was not acceded, he filed Writ Petition NO. 1462 of 2019,
calling in question the Government Resolution dated
25/5/2007 as well as the letter dated 27/6/2000 issued
pursuant to the G.R of 9/7/2019 and also the demand letter
dated 20/8/2018 and NOC dated 5/9/2019 granted by the
Collector on payment of the amount of premium.
Admittedly, the Writ Petition filed by Mr. Bulchandani
was allowed, by applying the principle in Aspi Chinoy (supra)
and the petitioners were held entitled for refund though it was
declared that they would be bound by the decision of the
Supreme Court, since the SLP filed against the decision of Aspi
Chinoy was pending before the Apex Court.
22. After the decision was delivered by the Division Bench on
29/9/2009 and while the Special Leave Petition was still
pending before the Apex Court, changes were brought in the
Maharashtra Land Revenue Code, 1966 by introducing two
amendments of great significance having an impact on the
transactions of land and this are in form of Section 37A and
Section 295.
23. Section 37A is introduced by Maharashtra Act No.4/2015
with effect from 3/3/2015 and the said provision is reproduced
thus :-
37A. Restrictions on sale, transfer, redevelopment, change of
use, etc., in relation to Government land and nazul land.–
(1) Every sale, transfer, redevelopment, use of additional Floor
Space Index (FSI), transfer of Transferable Development Rights
(TDR) or change of use of any Government land in AmravatiTilak
29/39 RPWL 27315-24.docand Nagpur Revenue Divisions, including the Mumbai City and
Mumbai Revenue Divisions in the State, which is granted for
various purposes under the provisions of this Code or the rules
made thereunder or any law relating to land revenue, before
the commencement of this Code, including the nazul lands in
Amravati and Nagpur Revenue Divisions, shall be subject to
taking the prior permission of the State Government.
(2) The State Government shall, while granting such
permission as required under sub-section (1), recover such
premium or charge and share of unearned income, subject to
such terms and conditions as may be specified by general or
special order issued by the Government from time to time:
Provided that, if the provisions of this section or any orders
issued thereunder are inconsistent with the terms and
conditions of the order of land grant or the lease deed executed
prior to the commencement of the Maharashtra Land Revenue
Code (Second Amendment) Act, 2012, the terms and
conditions of such order of land grant or lease deed shall
prevail:
Provided further that, in the case of nazul lands in Amravati
and Nagpur Revenue Divisions, the provisions of sub-section
(1) shall not apply with retrospective effect.
Explanation.– For the purposes of this section–
(a) “Government land” includes the Government land or part of
such land, or any building erected thereon, or any right, benefit
or share arising out of or in relation to such land or building;
and
(b) ……..
By introduction of the said provision, every sale, transfer,
redevelopment, use of Additional FSI, transfer of TDR or
change of use of any government land which was granted for
any purpose under the code, or any rule made thereunder, was
made subject to obtaining prior approval from the State
Government. Sub-section (2) contemplated that such
Tilak
30/39 RPWL 27315-24.doc
permission shall be granted by the State Government by
recovering such premium or charge or share of unearned
income, as may be specified by general or special order issued b
the government. However, by virtue of the proviso, the said
provision or any order issued thereunder was inconsistent with
the terms and conditions of grant of land executed prior to the
MLRC (2nd Amendment Act, 2012) the order of grant shall
prevail.
Worth it to note that the provision also clarified through
the explanation as to what would amount to ‘government land’
and this takes care of the argument of Mr. Bulchandani that he
was merely transferring a flat and not the land.
24. Another provision which is introduced is the proviso in
Section 295 which is added by Maharashtra Land Revenue
Code (fourth Amendment), Act XXIX of 2016 on 22/8/2016,
but giving the said provision effect from 15/8/1967 and now
section 295 with the proviso reads thus :-
“295. Such lands and foreshore how disposed of. It shall be
lawful for the Collector, with the sanction of the State
Government, to dispose of any lands or foreshore vested in the
State Government in such manner and subject to such conditions
as he may deem fit; and in any such case, the land or foreshore
so disposed of shall be held only in the manner, for the period
and subject to the conditions so prescribed.
Provided that, all leases granted by the State Government or the
Collector of the land or foreshore vested in the Government for
whatever term, which were in existence on or before the date
of commencement of this Code or were granted thereafter, shall
notwithstanding the conditions stipulated in such lease-deeds or
lease-agreements or Grant orders executed by the Collector, be
also subject to the following conditions, namely :–
Tilak
31/39 RPWL 27315-24.doc
(i) Leasehold rights in respect of the lands or foreshore vested in
the Government given on lease may be further assigned or
transferred only with the prior permission of the Collector on
payment of such premium on account of unearned income and
transfer fees or charges, at such rates as may be specified by the
Government by an order, from time to time.
(ii) In the case of any contravention of the provisions of sub-
clause (i), the lessee or transferor of such leasehold rights, shall
be liable to pay penalty in addition to such premium and
transfer fees or charges, at such rates as may be specified by the
Government by an order, from time to time.”
25. The validity of the two provisions was subjected to
challenge before the Division Bench of this Court to which one
of us (Justice Bharati Dangre) was a party and while upholding
the validity of both the provisions, the power of the State
Government to recover unearned income/premium or transfer
fee was recognised though it was clarified that whether all of
them could be recovered together or simultaneously or at all
would depend on the facts and circumstances of each case. In
reaching the said conclusion, it is categorically noted as
below :-
“By section 37A, restrictions on sale, transfer, redevelopment, change of
use etc. in relation to Government lands and nazul lands are placed or
imposed. Once again, the Government was well within its rights to
impose such conditions. The earlier attack was on such imposition being
done by a circular or by an executive fiat or by a mere letter, but without
any statutory prescription. If at all restrictions have to be imposed and
amounts or sums quantified in money are to be collected as unearned
income or transfer charges or fees, that will have to be done only by a
legal provision and not otherwise. It is precisely for that reason that the
statute has been amended and now a provision is specifically
incorporated therein. Hence, section 37A puts restrictions in the sense
every sale, transfer, redevelopment, use of additional FSI, TDR or change
of use etc. is not prohibited, but permitted. That will have to comply
with sub- section (1) of section 37A of the Code. That restriction on
deals and transactions will apply to all grants of Government land in
Amravati and Nagpur Revenue Division, including the Mumbai City andTilak
32/39 RPWL 27315-24.docthe Revenue Divisions in the State. These transactions and deals shall be
subject to taking prior permission of the State Government. The State
Government, while granting such permission, as required by sub-section
(1) of section 37A, recover such premium or charge and share of
unearned income subject to such terms and conditions as may be
specified by general or special order issued by the Government from time
to time. By the second proviso to sub-section (2) of section 37A, as
clarified above, in the event of a inconsistency between the provisions of
the lease deed, it is the later which has to prevail. That would be
applicable to those leases or orders of grant, which are executed prior to
the commencement of the Maharashtra Land Revenue Code (Second
Amendment) Act, 2012. That comes into effect on 3rd March, 2015.
Therefore, in the event of any inconsistency in the terms and conditions
of the order of grant or lease deed executed prior to this date, namely,
3rd March, 2015, the terms and conditions of such order of grant or
lease deed and not the provisions (section 37A(1) and (2)) shall prevail.
It is only in the absence of inconsistency that the provision comes into
play. Absent any inconsistency, the proviso to section 37(2) is
inapplicable and then, the provisions of the section would apply.”
26. Apart from this, when this provision was pitched against
the amended Section 295, it was noted that whenever the case
was covered by first proviso to sub-section (2) of Section 37A,
the State cannot recover unearned income even if the sale,
transfer etc. or further assignment was subject to prior
permission of the Collector.
By reconciling the provisions and by harmonising them, it
was held that there may be a term incorporated in the lease
deed or order of grant, permitting the Government to recover
the unearned income, but that by itself the Government could
not override the first proviso to sub-section (2) of Section 37A.
It was conclusively held that in all cases of all those
transactions, the restrictions in Section 37A, operate
irrespective of whether the grant or the lease did
unconditionally allow the transfer. Under both the sections i.e.
Tilak
33/39 RPWL 27315-24.doc
Section 37A and Section 295, which allowed assignment or
transfer, but which was made conditional upon prior permisison
of the Collector on payment of such premium on account of
unearned income or transfer fees or charges even in case of
lands in the city of Mumbai.
27. In light of the fact that the validity of the said provision is
upheld, it is evidently clear that a new statutory regime has
come into effect after the decision of the High Court delivered
in case of Aspi Chinoy. By virtue of Section 37A, the State
Government is empowered to prescribe the premium or charges
which it is entitled to recover for grant of permission for sale,
transfer, redevelopment or change of use in relation to
Government and Nazul land.
This power which was not earlier conferred by the statute
but by introducing it as a condition of grant, now has a
statutory enforceability. Section 37A now mandate that transfer
fees/charges shall be levied by the Government and it may be
specified by general or special order.
It is in this background the government issued a
resolution on 7/7/2017 prescribing the rate of premium/
charges payable on the transfer. The said Government
Resolution issued by the Revenue and Forest Department, has a
reference to the Government Resolution of 25/5/2007 and it
also contain a reference to the provisions of MLRC and Land
Disposal Rules. The preamble to the said Resolution state that
by exercising the said power, the lands belonging to the State
Tilak
34/39 RPWL 27315-24.doc
Government are allotted to the co-operative housing society
and the policy in this regards was formulated through
Government Resolution of 25/5/2007 and from time to time,
by issuing various resolutions/circulars or government letters,
appropriate changes/modifications were made in the said
policy.
However, it was noted that such co-operative societies
when transferred the units therein by way of sale/gift/
donation, transfer fees levied is negligible and it required an
enhancement. The resolution, therefore, determined the
transfer fee payable for different areas being set out with
reference to the period when the transfer is being effected.
The said resolution dated 7/7/2017 is admittedly, issued
after Section 37A is introduced in the Code of 1966 and though
an attempt is made by Mr.Bulchandani to assert that it is
applicable only with reference to the decision of the State
Government as contained in Resolution of 25/5/2007, which is
the allotment of land to the co-operative societies at
concessional rate. Reading of the preface to the said
Government Resolution would reveal that it has one reference,
to a situation where the Government Resolution provided for a
policy for allotment of land to co-operative societies by ivoking
the provisions of Maharashtra Land Revenue Code and the
Rules framed thereunder.
However, section 37A has now empowered the State to
grant permission for every sale, transfer, redevelopment etc. for
Tilak
35/39 RPWL 27315-24.doc
any land in Amravati and Nagpur Revenue Division including
Mumbai City and revenue division in the State, irrespective of
the purpose for which the land was granted. Section 37A is
thus applicable irrespective of the purpose for which the land is
granted under the provision of the Code and Rules made
thereunder and no longer the power of the State government to
recover premium or charge and share of unearned income in
respect of the land belonging to it upon its sale, transfer,
redevelopment, use of additional FSI or TDR is restricted to
term of the grant in favour of the co-operative societies at
concessional rate, which was the subject matter of Government
Resolution of 25/5/2007. Now, the power which is available to
the State Government is permitted to be exercised irrespective
of the purpose for which the land is granted, the only
requirement being that the land must be granted by the State
Government by invoking the provisions of the Maharashtra
Land Revenue Code or the Rules made thereunder or any law
relating to land revenue and the grant was prior to the
commencement of the Code, and the land may be situated in
Mumbai City or in Amravati and Nagpur Revenue Division and
other Revenue Division in the City. Therefore, in the wake of
the change in the statutory regime, when the power to charge
premium/share of unearned income is not dependent upon
whether this was a stipulation provided in the order of grant,
but even if it is so specified, the State Government is
empowered to grant the permission or any transfer, sale etc by
Tilak
36/39 RPWL 27315-24.doc
recovering such premium or charge and share of unearned
income, which would be specified by general or special order
issued by the Government from time to time.
The proviso has only carved out an exception in respect of
any inconsistency in the terms and conditions of the order of
land grant or lease deed and the provision in the said section, if
such lease deed was executed prior to the second amendment
Act, 2012 and in such a case, the order of land grant or lease
deed would prevail. Only in case of Amravati and Nagpur
Revenue Division, the provisions of sub-section (1) of Section
37A shall not apply with retrospective effect.
31. We also do not find merit in the submission of Mr.
Bulchandani that the Government Resolution of 2017 do not
exist in form of ‘General Order’ as contemplated in sub-section
(2) of Section 37A and we must record that merely because
there is no reference to the provision, it is not right to assume
that it is not the decision of the State Government, fixing the
premium or charge or share of unearned income. The State
Government through the Advocate General has made a
categorical statement before us that the G.R dated 7/7/2017
operate as ‘general order’ fixing the rate of ‘Transfer Charge’
(“hastanthar shulk’ ) in case there is a transfer/gift/donation of
the flat/unit of a co-operative housing society and which is
sought to be transferred on completion of period of five years.
28. As far as the petitioner is concerned, his transaction
involve transfer of the unit, in a building, the occupants of
Tilak
37/39 RPWL 27315-24.doc
which have formed a co-operative housing society and that is
the specific reason why the demand has been raised upon the
petitioner for deposit of transfer charges, so that the permission
can be granted for effecting the transfer. The demand notice
dated 3/2/2026 specifically make reference to Section 37A of
the Maharashtra Land Revenue Code and to the Resolution of
7/7/2017 and for the transaction which the petitioner is
interested, it has levied a transfer fee of Rs.25,08,000/-.
We find the demand to be perfectly justified in the facts of
the case, since the permission is sought to transfer unit no.709
in Raheja Centre, which is a building constructed on the land
leased out and the land is conveyed to Raheja Centre Premises
Co-operative Society Limited. The amount has been transferred
by the petitioner in form of transfer fee in accordance with the
G.R dated 7/7/2017, and in our view, the State Government
through the Collector is entitled to recover the said fee in the
wake of Section 37A of the co-operative Societies Act.
29. As on date, the decision delivered in case of Mr.Aspi
Chinoy & Anr (supra) which was subjected to an Appeal before
the Apex Court, is also put to rest by judgment delivered on
30/9/2022 and we have noted the said decision which has
refused to entertain the challenge to the judgment and order
dated 29/9/2009 passed by the Division Bench in WP
No.713/2001, thereby allowing the Writ Petition filed by Aspi
Chinoy and Anr.
Tilak
38/39 RPWL 27315-24.doc
There is no dispute about the fact that the distinguishing
feature of Aspi Chinoy’s case, being the land was leased out to
the builder, who was the successful bidder and thereafter, the
ownership of the flats were transferred to private individuals
and a Society of the flat owners was formed, are the common
factors which also exist in the case of the petitioners, but it is to
be noted that the whole regime of the Government Resolutions
of 1983 and 1999 has now undergone a change with the
introduction of a specific power being conferred on the State
Government through Section 37A, permitting the Government
to charge premium/unearned income/transfer charge for every
transfer, sale etc. of the government land, which has been
explained by the Explanation appended to the said section and
it has to be construed in the widest possible manner to cover an
unit/flat, and therefore, though the said decision of the Apex
Court has come after the introduction of Section 37A and
proviso to Section 295, the said provisions were not brought to
the notice of the Apex Court. In any case, in the wake of the
statutory power now conferred on the State Government
u/s.37A and the proviso appended to Section 295 of the Code,
the validity of both the provisions having been upheld by the
Division Bench of this Court, we are of the view that in the
wake of the change in the statutory provision, pursuant to the
decision delivered in case of Aspi Chinoy & Anr Vs. State of
Maharashtra, the statement made by the learned Government
Advocate on the basis of which Writ Petition No.1462/2019
Tilak
39/39 RPWL 27315-24.doc
filed by Mr.Kamal Bulchandani & Another was disposed of,
deserve to be reviewed.
The order dated 13/12/2019 allowed the Writ Petition
only on the premise that a concession was offered by the
Advocate appearing for the State Government that the case was
covered by the decision of the Division Bench in case of Aspi
Chinoy. However, the said statement definitely did not bind the
State Government as it was not the statement made by the
Advocate General of the State and in any case, in the wake of
existing statutory regime, which came into force with the
introduction of Section 37A and the proviso to Section 295 of
the Maharashtra Land Revenue Code, whether there is a
concession given or not, the statutory regime would prevail.
As a result, we allow the Review Petition filed by the State
and set aside the order passed by the Division Bench on
13/12/2019.
Since we have also heard Writ Petition No. 1462/2019
on merits and in the light of the statutory regime, the relief
sought therein cannot be granted. Hence, we dismiss the Writ
Petition.
No order as to costs.
In the wake of the aforesaid reasoning, the Contempt
Petition is also disposed of.
(MANJUSHA DESHPANDE, J) (BHARATI DANGRE, J.)
Tilak
