D R BHARADWAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is preferred to challenge legality of judgment dated 26/10/1990 passed by learned single Judge summarily dismissing Writ Petition No. 2728 of 1990. It is necessary to set out facts which gave rise to the filing of the petition in detail as the issue involved is one of considerable importance.

(2.) THE respondent No. 5 is a Co-operative Housing Society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act ). The Society was desirous of constructing residential building for accommodation of members and requested Government of Maharashtra to allow Plot No. 125 of the lay out of Survey No. 111-D-141-A of Village Ambvali, Taluka Andheri. The State Government allotted the plot in accordance with the Rules framed by the Government lands to Co-operative Housing Societies and the grant was on terms and conditions which are set out in Government Resolution dated 12/05/1983. The Government Resolution, inter alia, recites that the question of grant of Government land to Co-operative Housing Societies was under consideration in view of acute shortage of available space and unusual demand from various sources. The Government, therefore, issued orders regarding grant of land to Co-operative Societies throughout the State of Maharashtra in exercise of powers under S. 40 of Maharashtra Land Revenue Code, 1966 read with R. 27 of Maharashtra Land Revenue' (Disposal of Government Lands) Rules, 1971. The policy decision of the State Government, inter alia, recites that Government land should be granted to Co-operative Societies for construction of residential tenaments for the members belonging to various income groups. The Government decided to give priority while disposing of Government lands to freedom-fighters, retired or serving members of the armed forces and the State police and families of armed forces and State police who were killed while on duty. The Resolution recites that eligibility for membership in Co-operative Housing Societies seeking Government land on payment of concessional occupancy price/lease rent should be examined in the light of the qualifying conditions prescribed in Annexure 'a' to Resolution. The Resolution further provides that the allotment of land should only be to a registered Co-operative Housing Society and affairs of such Housing Society established on Government land should be managed in accordance, with the provisions of the Act and the Rules framed therein and as per bye-law adopted by the Societies, subject to further conditions prescribed by Government in the land grant orders. The Resolution makes it clear that possession of Government land should be granted td Housing Societies only after such Societies are registered under the provisions of the Act.

(3.) ANNEXURE 'a' to the Resolution sets out qualification for approval of members in Co-operative Housing Societies seeking Government lands on payment of concessional occupancy prices/lease rent. Some of the conditions are that a member should be resident of Maharashtra for at least 15 years, the members should have an independent source of income and the member should not have in his own. name and possession or in the name and possession of his spouse or minor child or member of family dependent upon him any land, house, bungalow or flat in excess of 600 square feet carpet area in area of operation of Housing Society. The member should also not hold any rental accommodation in excess of 600 square feet carpet area and in case such a member desires to join the Co-operative Housing Society, then, it can only be on the condition of such person giving an undertaking to relinquish by surrender, sale or transfer of the existing accommodation. Annexure 'b' to the Government Resolution sets out the terms and conditions of grant of Government lands to Co-operative Housing Societies. The terms demand that a Society shall utilise the land only for the purpose of construction of residential tenaments for its approved members. The terms demand that a Society shall not permit any of its members to lease or sub-let or to give on lease and licence basis or to transfer the tenament allotted to him without the prior permission of the Collector. Term No. (ix) provides that the Society shall not enroll any new member or substitute any member approved by the Collector/commissioner/government under the provisions of its bye-law notwithstanding without prior written permission of the said authority and the said authority shall have a right to approve or disapprove any such request, or to grant permission on such terms and conditions as the said authority considers fit. Cl. (x) inter alia, provides that if any member does not occupy the tenament, then the Society shall place the tenament at the disposal of the Collector who shall arrange to pay the rent to the member holding the flat. Clause (ix) reads as under: