Adarsh Report Part II

re REPORT OF COMMISSION OF INQUIRY ADARSH C.H.S. LTD., COLABA, MUMBAI CONSISTING OF THE HONOURABLE SHRI JUSTICE J.A. PATIL (RETD.)__CHAIRMAN AND SHRI P. SUBRAHMANYAM, RETIRED CHIEF SECRETARY, GOVT. OF MAH. _ MEMBER ON TERMS OF REFERENCE NOS. 3 TO 13 PART II Volume I - Page Nos. 116 to 334 i) Introductory - Page Nos. 116 and 117 ii) Background Facts- Page Nos. 117 to 158 iii) Term No3 - PageNos. 158 to 199 iv) Term No4 - PageNos. 200 to 225 v) TermNo5 - Page Nos. 226 to 283 vi) Term No8 - Page Nos. 284 and 285 vii) Term No9 - Page Nos. 285 to 334INDEX Sr. No, Topic Para No. Page No. Introductory Background facts. i) The Adarsh CHS Ltd. Hunt for Govt.land Intervention of Shri Kanhaiyalal Gidwani iv) Alternate proposal for allotment of land in question v) Society's letter to the Revenue Minister Shri Ashok Chavan vi) Proposal for reduction in the proposed width of Capt. Prakash Pethe Marg vii) Steps taken by the Govt. viii) Processing of the proposal for allotment of land to Adarsh CHS ix) Issue of letter of intent x) Grant of Letter of Allotment 23 to 40.2. 24&241, 25 &25.1 26 to 26,2. 27 to 27.4. 28 29. to 29.2. 30 to 30.1. 31 32, 33 & 33.1. ) 116 &117 1178118 118 to 120 120 to 122 122 to 127 128&129 129 to 132 132 to 134 1348135 135 to 137 137 & 138xii) xiv) xv) xvi) Move for securing addl. FSI of BEST plot Grant of Addl. FSI to Adarsh society xiii) CRZ clearance from MoEF Construction of the building of Adarsh cHs Reference to the High Rise Committee Membership of Adarsh CHS xvii) Valuation of the land in question and addl. FSI granted to the society 34 t0 34.3. 35 36 to 36.2 37 &37.1. 38 to 38.2, 39 to 39.5. 40 & 40.2 138 to 143 144&145 146 to 148 148 to 150 150 to 152 153 to 156 156 to 158 i) ii) iii) iv) 2. Term No.3 of reference. Modification of the Development Plan Notice to MOD/LMA was necessary Whether the said modification amounts to change in the character of the entire Development Plan Whether the object of the said modification was valid 41 to 44.7 41,1 to 41.7 41.8 to 41,10 42 & 421 43 to 43.18 158 to 199 158 to 167 167 to 169 170 to 173 173 to 193|v) Whether there wasa change of \ reservation Hae Term No.4 of reference i) Additional facts ii) | Whether loading of FSI of BEST plot on { the land in question without amalgamation is HE Ee Eclat 4. | Term No.5 of reference |i) Which DCRis applicable to the bldg... of Adarsh CHS ii) Whether there have | been contraventions in utilization of FSI in respect of certain | items in the construction of the bldg. of Adarsh CHS. a) Floor Space Index b) FSI for items of stair case, lift, { lobby ete. ©) Podium d) Recreation ground | e) Set back area _f) Height of the bldg. 44to 44.7 45 to 46.10 45 to 45.12 46 to 46.10 47 to 52.13 47 to 47.15 48 to 52.13 | 48 to 48.7 49 &49.1 49.2 to 49.8 50 to 50.6 51to 51.2 193 to 199 200 to 225, 200 to 215 216 to 225 226 to 283 226 to 241 241 to 283 241 to249 249 to 251 251 to 258 258 to 267 267 to 270 _ S2to 524 270 to 276| g) Reference to High Rise Committee to 52.13 276 to 283 | { 5. Term No.8 of reference 53 284 & 285 ] 6. | Term No.9 of reference 54 to 54.42. | 285 to 334 i) Environment 54to54.3 | 285 to 291 (Protection) Act, 1986, | the Rules framed thereunder and the Notification dt. 19-2- 1991 _ issued by the { MoEF. ii) Coastal Zone 54.4 to 54.10 291 to 298 | Management Plan & Coastal Zone Management ) Authority. iii) Plea of Adarsh CHS 54.11 to 54.13 | 298 to 300 that Act 1986 & | Notification 1991do | not apply to it... whether correct. | iv) Whether CRZ 54.14 to 54.17; 301 to 304 clearance/ permission was required by Adarsh CHS v) Whether the Adarsh 54.18 304 &305 CHS applied for CRZ | clearance. vi) Whether theletters | 54.19to 54.22 | 305 to311 Exh.AS-86 & Exh.MMRDA-47 amount to CRZ I clearance avii) ix) Ambiguous and contravential letter dt. 11-3-2000 of Shri Senthil Vel Whether the letter dt. 15-3-2003 Exh.MMRDA-47 amounts to CRZ clearance and if yes, whether a valid clearance The provisions of paragraph 6(2) of Annexure-I to the notification, 1991 are mandatory 54.23 to 54.28 54,29 to 54.36 54.37 to 54.42 311 to 318 318 to 329 329 to 334( 7. Term No.6 of reference T 55 to 60 335 &542 i) Preliminary 55 335 336 if) Eligibility criteria for 55.1t055.7 | 336 to 345 membership under the GR dt. 9-7-1999 & Gr. Dt. 25-5-2007 iii) Procedure followed | 55.8t055.10 | 345to348 by the Adarsh CHS / for selecting its members Iv) Procedure followed by the Collector for 55.110 55.14 | 348 to 351 scrutiny of membership applications A wing - flats with areas of 1076 sq.ft. each. 56 to56.85 | 351t0 414 a) Lt. Car. Gurumukhsingh 56 & 56.1. 351 to 353 Grewal (Retd.) { b) ShriJitendraAwhad | 56.2 & 56.3 353 & 354 MLA c) Late Major Narayan | 56.4 to 56.6 354 to 357 W. Khankhoje (Retd.) d) Smt. Seema Vyas 56.7 to 56.11 357 to 361 e) Brig. Avinash Chander | 56.12 to 56.14 } 361 to 363 Chopra f) Lt.Gen. Shantanu 56.15 to 56.17 | 363 to 365 | Choudhary(Retd.) g) LtGen.Gurubaksha- | 56.18 to 56.20 | 365 to 367 Singh Sihota. (Retd.) h) Shri P.V.Deshmukh 56.21 to 56.24 | 367 to 370 i) Shri Babasaheb 56.25 to 56.29 | 370 to 374 Kupekar | 9) Vice.Admiral Madanjit | 56.30 to 56.32 | 374 to 377 Singh ire \wk) Cdr. Arigapudi Purankumar 1) Admiral Madhavendra Singh (Retd.) m) Shri Suresh Prabhu n) ShriJ.M. Abhyankar ©) Shri Arun Pandurang Pawar p) Major Ashish Tandan q) Cmde. Gopal Bharati r) Lt. Gen. P.K. Rampal s) Dr. Devayani Khobragade t) Smt. Idzes Angmo Kundan u) Shri Ram Chandra Thakur v) Lt.Col.Arun Pratap Singh w)Shri Kanhaiyalal Gidwani x) Brig. Tarakant Sinha y) Cdr. Raju Pilo z) Major Gen. T.K.Kaul Awing- Flats with area of 650 sq. ft. a) Shri Aditya Bhagat Patil b) CoLR.K. Bakshi ©) Shri Amarsingh H. Waghmare 4) Shri Vishal Kedari e) Dr. Archana Tiwari f) Lt.Gen. Tejinder singh g) Dr. Sripat B Chavan 56.33 & 56.34 56.35 to 56.37 56.38 to 56,43 | 56.44 to 56.47 56.48 to 56.50 56.51 to 56.53 56.54 & 56.55 56.56 to 56.60 56.61 to 56.64 56.65 to 56.69 56,70 to 56.72 56.73 to 56,75 56.76 to 56.78 56.79 & 56.80 56.81 & 56,82 56.83 to 56.85 57 to 57.69 57 to 57.2. 57.3 57.4 to 57.7 57.8 & 57.9 57.10 to 57.12 57.13 & 57.14 57.15 to 57.17 al 377 &378 378 to 380 381 to 385, 385 to 387 388 & 389 390 to 392 392 &393 393 to 396 396 to 399 400 to 403 403 to 406 406 to 408 408 to 410 410&411 411 &412 413 &414 415 to 458 415 to 417 417 & 418 jane to 420 420 &421 421 to 423 423 &424 424 to 426h) Smt. Seema Vinod | Sharma i) Prof. Satyasandha Vinayak Barve j) Lt. Cdr. Chunilal k) Shri Uttam Gakhare 1) Shri Sajjan singh Yadav m) Shri Girish Pravin Chandra Mehta n) Shri Kanishka J. Phatak 0) Ms. Supriya V. Mhaske p) Shri Omkar Tiwari q) Cdr. Harbhajan singh r) Shri Arun S. Adate s) Shri Sanjoy Sankaran t) Dr. Sanjay Radkar u) Shri Jagdish Prasad Sharma vy) Shri Dhondiram G. Waghmare w) Shri Kailash K. Gidwani x) Smt. Kavita Godbole y) Dr. (Surg. Capt.) P.S. Thampi z) Smt. Sheetal Vinod Ganju 57.18 to 57.22 57.22 to 57.25 57.26 & 57.27 57.28 to 57.30 57.31 & 57.32 57.33 to 57.35 57.36 to 57.38 57.39 to57.41 57.42 to 57.44 57.45 to 57.46 57.47 & 57.48 57.49 & 57.50 57.51 to 57.53 57,548 57.55 57.56 & 57.57 57.58 to 57.60 57.61 to 57.63 57.64 to 57. 67 } 57.68 & 57.69. 426 to 430 430 to 432 432 &433 433 to 435, 435 & 436 436 to 438 438 to 440 440 & 441 442 &443 444 8445 445 & 446 446 to 448 448 & 449 449 to 451 4518452 452 to 454 4548455 455 to 457 457 & 458B wing flats with area of 650 sq.ft. a) Shri C. R. Gaikwad b) Shri Sidhharth Sonu Gamre ©) Shri Bhavesh Ambalal Patel 4) Shri Anant Ss. Bharose \ e) Shri Sudhakar ' Laxman Madke f) Shri Paramveer Abhay Sancheti g) Shri Parmanand K. Hinduja h) Shri Madanlal Milkhiram Sharma i) Smt. Susheela | Shaligram j) Shri Malav Jayant Shah k) Shri Kiran Bhadange 1) Shri Shivaji Shankar Kale m) Ms. Rupali H. Raorane i n) Brig. M.M. Wanchoo 0) Shri Raghunath M, Bhosale p) Ms. Sonia Suresh Kolhapure q) Shri Ranjit Chintamani ! Sangitrao r) Shri Shivajirao C. Deshmukh cy 58 to 58.54 58 to 58.3 58.4 & 58.5. 58.6 & 58.7 58.8 & 58.9 58.10 & 58.11 58.12 to 58,14 58.15 & 58.16 58.17 & 58.18 58.19 58.20 &58.21 58.22 58.33, 58.24 & 58.25 58.26 & 58.27 58.28 & 58.29 58.30 &58.31 58,32 to 58.34 58.35 & 58.36 458 to 495 458 to 460 460 & 461 462 & 463 | 463 & 464 465 466 to 468 468 & 469 4690 471 471 & 472 472 & 473 473 & ATA 474 8475 475 to 477 477 & 478 478 to 480 480 & 481 481 & 482 483 & 484s) Shri Sandusingh Fulsingh Rajput t) Shri Sriniwas Dadasaheb Patil u) Shri Manilal K. Thakur v) Shri Sampat R. Khidse w)Shri Amit K. Gidwani x) Gen. Nirmal Chander Vij y) Major Gen. Varinder singh Yadav 2) Shri Sushilchandra Sharma B wing -remaining 26 flats with area of 650 sq. ft. a) Shri Balasaheb Yashwantrao Sawant b) Capt. Praveen kumar ©) Brig. M.D. Singh d) Shri Rajeshkumar Das e) Shri Suresh Gulabrao Atram f} Shri Rajesh Shantilal Bora g) Col. Amarjitsingh h) Smt. Bhagwati Sharma i) Smt. Sumeela Sethi 58.37 & 58.38 58.39 &58.40 | 485 & 486 | 58.41 to 58.43 | 486 to 489 58.44 to58.46 | 489 to 491 58.47 &5848 | 4918492 58.49to 58.51 | 492 to 494 58.52 &58.53 | 4948495 58.54 495 | 59 to59.65, 496 to 542 59 &59.1 496 & 497 59.2 &59.3 497 to 499 59.4 & 59.5 499 & 500 59.68&59.7 | 500 to 502 59.8t059.10 502 &503 59.11&5912 | 504&505 59.13 505 & 506 59.14t059.16 | 506 to 508 59,17 to 59.19 508 to 511 | 484 & 485a j) Shri Dhaval Rajesh Shah I) Shri Amol Karbari }) Shri Krishnarao Dhondiba Bhegde m) Lt, Col. R.K. Singh n) Col. KJ.S. Khurana ©) Shri Vishwas Bapu Chougule p) Cdr. John Mathew q) Shri Anil Kumar Thakur 1) Shri Nivrutti G. Bhosale s) Gen. Deepak Kapoor t) Car. AS. Balkrishnan u) Lt. Col. Paramahans Ram v) Dr. Arun V, Dawle w)ShriGajanan Sadashiv Koli x) Brig. Romesh Chander Sharma y) Maj. Gen. RK. Hooda z) Shri Mukundrao G. Mankar Summary of conclusions onissue no. 6 59.20 to 59.22 59.23 & 59.24 59.25 & 59.26 59.27 & 59.28 59.29 & 59.30 59.31 &59.32 59.33 to 59.35 59,36 to 59.38 59,39 to 59.41 59.42 to 59.45 59.46 & 59.47 59.48 & 59.49 59.50 to 59,52 59.53 & 59.54 59.55 to 59.58 59.59 to 59.61 59.62 to 59.65 60. 511 to 513 513 to515 515 &516 516 &517 517 &518 518 to 520 520 to 522 522 to 524 524 to 526 | 526 to 528 528 & 529 529&520 530 to 534 534 &535 535 to 537 537 to 539 539 to 541 541 & 5422 8. Term No.11 of reference i) Preliminary ii) The Benami Transactions (Prohibtion) Act, 1988 iii) Some decisions on Benami issue iv)Benami Transactions in | “adarsh cHs. a) Major Arun Pratap Singh (Mrs. Priyanka Lakhadawala) b) Ms. Sheetal Vinod Ganju (Smt. Neelu Tej Kaul) c) Shri Amarsingh H. Waghmare (Smt. Irawati Parkar) d) Shri Vishal Kedari (Shri Ram Sevak Nayyar & Smt. Parveen Nayyar) e) Prof. Satyasandha Vinayak Barve (Smt. Sharmila Barve) f) Shri Uttam R. Gakhare (Mrs. Arundhadi Upadhyay) g) Shri Dhondiram G. Waghmare (Jay Maharashtra Consumers Pvt.Ltd.) h) Shri Gajanan Koli (ShriSunil Gidwani) 1) Ms. Rupali Raorane (Superline Construction Pvt.Ltd. +e \\ 61 & 62. 543 to 579 61 543 &544 611 544 to 546 61.2 to 61.5 546 to 551 61.6 to 62 551 to 579 61.6 to 61.8 551 to 553 61.9 553 & 554 61.10 to 61.13 555 to 558 61.140 61.17 | 558 to 560 61.18 & 61.19 560 to 562 61.20 562 & 563 61.21 563 & 564 | 61.22 564 &565 61.23 & 61.24 565 to 567j) Shri. Mukundrao Mankar (Landscaper Realtors Pvt.Ltd.) k) Shri Sandusingh Fulsingh Rajput (Shri Narayandas Agarwal) 1) Shri Raghunath Maruti Bhosale & Shri Vishwas B. Chougule ( Shri Umesh Dhondiram Shinde) m) Shri Suresh Gulabrao Atram, Shri Sudhakar Laxman Madke, Shri Rajesh Shantilal Bora, Shri Jagdishprasad Sharma, Shri Paramanand K. Hinduja, Shri Manilal K. Thakur, Lt.Col, Paramhans Ram, Col. Late Amarjitsingh and Shri Kiran | Bhadange (M/s, San Finance Corporation - Shri Abhay Sancheti) n) Shri Madanlal Milkhiram Sharma (Shri Malav Jayant Shah) (Note: The names in the bracket are the names of benamidars) _ _ Term No.7 of the reference a) i) Meaning of quid pro quo if) Who is a public servant iii) Dr. Pradeep Vyas iv) Shri P.V. Deshmukh Lv) Shri Ramanand Tiwar fo 61.25 & 61.26 61.27 to 61.29 61.30 to 61.33 61.34 to 61.40 61.41 &62 63 to 70.1, 63 64 to 64.2 65 to 65.6 66 to 66.3 67 & 67.1 567 & 568 569 &570 570 to 572 573 to 578 578 &579 580 to 609 580 &581 581 to 584 584 to 589 589 to 592 592 & 593vi) Dr. Jairaj Phatak 68 to 68.2 593 to 596 vii) Shri Ashok Chavan 69to 69.11 596 to 606 viii) ShriBabasaheb 70 to 70.1 606 to 609 Kupekar b) Whether the 71to 711. 609 & 610 provisions of Prevention of Corruption Act would be attracted? 10 | Term No.10 of the 72 to 73.2 611 to 644 | reference Preliminary 72 to 72.3 611 to 615. Relevant provisions of 72.40 72.5 615 to 621 AIS Rules iii) Shri Subhash Lalla 72.6 to72.8 621 to 623 iv) Smt. Seema Vyas&Dr, — 72.9& 72.10 624 Pradeep Vyas v) Dr Jairaj Phatak 72.11 625 vi) Shri Shivajirao 72.12 626 Deshmukh vii) Shri Ramanand Tiwari | 72.13 to 72.15 626 to 629 viii) Shri C.S.Sangitrao 72.16 629 & 630 ix) Shri Uttam Khobragade | 7217 630 & 631 x)Dr.D.K.Sankaran&Dr. | 72.18 to 72.21 631 to 634 Smt. Joyce Sankaran xi)Smt. LA.Kundan 72.22to 72.25 | 635 to 637 xii)Shri Srinivas Patil 72.26 637 & 638 xiii) Shri Thomas Benjamin | 72.27 to 72,30 638 to 640 xiv)Shri P.V.Deshmukh 72.31 640 & 641 xv)Army officers 73 641 & 642 xvi) Officers of the 73.1&73.2 643 & 644 MMRDA a11. | Term No.12 of the 74 to 77.1 | 644 to 663 reference | 74 | 644. & 645, i) Preliminary ii) Politicians’ patronage to | 75 to 77.1 645 to 662 the Adarsh CHS a) Shri Vilasrao Deshmukh | 75 to 75.6 645 to 651 b) Shri Sushilkumar Shinde | 76 to 76.8 651 to 661 |” and Shri Shivajirao Nilangekar Patil c) Shri Sunil Tatkare and T7T&ITA 661 to 663 |__| _ Shri Rajesh Tope ei see eae 12 | Term no. 13 of reference. 78 (Ato}) 663 to 668 13 | Summary of conclusions 79(ItoXXV) | 668 to 674 14 | Epilogue 80 & 81. 674 676APPENDECIES 1 | Appendix- VI - List of the witnesses examined before the commission. er eee 2 | Appendix - VII - Part plan of ‘A’ ward of sanctioned development plan 688 of greater Mumbai. 3. | Appendix - VIII- Map showing area of plots ‘A’ op 689 and ‘BY, 4 | Appendix-IX - Chart showing floorwise names of members of Adarsh CHS. Ltd. 690 5 | Appendix -X - Plan showing the modification ' to be carried out vide | } Government's Order bearing 691 | No. TPB 2099/1095/CR-154/ 99/B/UD-12, dated 28-2-2001. }ance of Advocates from 14-4-2012 to 15 Ms. Asha Bhambwani, Adv. for Shri Luktuke - MMRDA. Ms. Kiran Bagalia, Adv. for T. Chandrasekhar. Shri Som Sinha with Ms Sharon Rodrigues, Advs. for Dr. Senthil Vel, MOEF, GOI. Ms. Vaishali Bhiungade with Milind More, Advs. for Om Prakash Gupta, BEST. Shri Om Sinha and Ms. Sharon Rodrigues, Advs. for Shri Bharat Bhushan, MOEF, GOI. Shri Rohan Samant and Ms. Ameeta Kuttikrishanan, Shri Yogesh Jaybhaye, Advs. for Shri P.V. Deshmukh. M/s Vidhii Partners, Advs, for Shri Amol Karbhari, Shri Gajanan Koli, Shri Kiran Bhadange, Ms Kavita Godbole, Shri Madhavendra Singh, Shri Girish Mehta, Cdr. Puran Kumar, Shri Sudhakar Madke, Shri A.P. Pawar, Maj. Gen. T.K. Kaul, Shri P.K. Hinduja, Shri J.M. Abhyankar, Brig. T.K. Sinha, Adm. Madanjit Singh, Lt. Col, A.P. Singh, Shri Onkar Tiwari, Dr. S.B, Chavan, Shri Uttam Gakhare, Ms Rupali Raorane, Shri CS. Sangitrao, 14. Col. P.H Ram, Shri Ramanand Tiwari, Shri Santonu Choudhari, Shri Subhas Laila, Shri Kanhaiyalal Gidwani, Shri Kailash Gidwani, Shri Amit Gidwani, Shri Vishal Kedari, Ms. Priyanka Lakdawala, Shri R. C. Thakur, Maj. Gen. A.R. Kumar, Shri Anilkumar Thakur, Dr. Pradeep Vyas, Lt. Gdr. Chunilal, Cdr. Gopal Bharti, Cdr. Gurumukh Grewal, Cap. Kiran Khankhoje, Lt. Gen. Tejinder Singh, Brig. M.M. Wanchu, Shri J.P. Sharma, Shri Manilal Thakur, Lt Gen. GS. Shihota, Mrs. Sheetal Ganju, Shri Bhavesh Patel, Shri Amarsingh Waghmare, Smt. Irawati Parkar, Smt, Sumeela Sethi. $/Shri Atul Daga and Suraj Iyer, Sushrut Desai i/b Ganesh & Co., Advs. for Shri Sidharth Gamare, Shri Abhay Sancheti, Shri Paramveer Sancheti and Shri Rajesh Bora, Shri Aditya Singh, Adv. for Shri Santosh Daundkar. Shri GS. Pikale, Adv. for Cdr. A.S. Balkrishnan. M/s Ganesh & Co. Advs. for San Finance Corpn. Shri Joel Carlos, Adv. for Dr. Arun Dawle. {=-2- Shri Manish Choudhari i/b Kadam and Co. Advs. for Shri Praveen Kumar. Shri Shriram Sirsat, Ady. for Smt. IA. Kundan. Shri Sekhar Bhise, Adv, for Shri Jitendra Awhad. M/s Mullani & Co, Adv. for Suresh Atram. S/Shri Butala and M.P. Rao, Advs. for Shri Suresh Prabhu. Shri Ram Apte, Sr. Adv. for S/Shri Jairaj Phathak and Dr. Pradeep Vyas. Shri P.K. Dhakephalkar, Sr. Adv. with Amol Mhatre for Jayant Shah and also for Malav Shah and Dhaval Shah i/b by Vidhii Partners. S/Shri Pradeep M Patil and Sachin D. Bagal, Advs. for Shri Sunil Tatkare. Shri Anand Deshmukh, Adv. for Shri S.L. Kondawar. Shri Faizal Sayyed i/b M.K. Ambalal & Co. for ICICI Bank. Shri Ashok Mundargi, Sr, Counsel with Abhishek Yende, Advs. for Shri Vinod Sharma, Smt. Seema Sharma and Shri Madanlal Sharma. Shri Abhishek Yende, Adv. for Shri Narayandas Agarwal and Shri Sandusing Rajput. Shri Ramesh Dube-Patil with Ms Shama Mulla, Advs. for Smt. Sharmila Barve and Shri S.V. Barve. Ms Ruchi Rita, Adv. for MOEF, GOI. Shri Vikram Chavan, Adv. for Shri Arun Adate, Ms Sonia Kolhapure and Ms Supriya Mhaske. $/Shri LM. Acharya and Kunal Bhange, Advs, for Shri Jayant Patil. Shri Rakesh Mishra, Adv. for Uttam Khobragade. Shri AR. Kadam, Adv. for Shri Babasaheb Kupekar. $/Shri GK. Dravid with U.R. Mankapure and Nilesh Wable, Advs. for Shri Shivaji S. Kale. \ Shri Vidyasagar Sakhare, Adv. for Shri Dnondiram Waghmare. '116 COMMISSION OF INQUIRY INTO THE ALLEGED IRREGULARITIES RELATING TO ADARSH C.H.S. LTD. COLABA, MUMBAI. RJ TER! RI INTRODUCTORY 23. The Commission has already submitted its first and final report on term Nos. 1 and 2 of the Reference on 13-4-2012 recording its findings to the effect that the land in question belonged to the Government of Maharashtra (GOM) and not Ministry of Defence (MOD). It has also recorded its finding that the land in question or the membership of the Adarsh CHS was not reserved for housing Defence Personnel or Kargil War Heroes, 23.1 The Commission now submits its second and final report on the rest of the Terms of Reference ie, Issue Nos. 3 to 13. Since this report is in continuation of the previous report, sequential page numbers and paragraph numbers are given to maintain the continuity. 23.2 The Commission has recorded the evidence of in all 180 witnesses on Term Nos. 1 to 13. The list of all these witnesses is17 given in Appendix VI annexed to this report. The oral evidence of the witnesses runs into about 3000 pages. In addition, 34 formal witnesses were examined before the Commission who produced more than 400 files of various departments of GOM and other authorities running into thousands of pages. 23.3. Extensive arguments of the Id. Counsel for the Commission, GOM, MMRDA and the Adarsh CHS on issue nos. 3 to 13 were heard. In addition, the individual members of the Adarsh CHS were also given opportunity of argument, if they chose to do so, on the issue concerning the membership. The Ministers and concerned officers in the Mantralaya were also given hearing either in person or through their advocates in connection with the said issues and particularly issue No.7 relating to quid pro quo. BA FACTS. 24, THE ADARSH CO-OPERATIVE HOUSING SOCIETY LIMITED. 24.1 The Adarsh CHS (proposed) was floated in around 1994 with Shri RC. Thakur as the Chief Promoter and Brig. M.M. Wanchoo (Retd.) as the Secretary. At the relevant time Shri Thakur was working as Sub Divisional Officer in Defence Estates Office, Colaba, Mumbai and he continued in the service of that department till 2002. Brig. Wanchoo had already retired from service in 1994 and he was re-employed with Tata Power18 Company, Mumbai. He continued in that company for about 8 years and thereafter settled in Pune. Both Shri R.C. Thakur and Brig, Wanchoo were known to each other since before. They also knew many other military officers who joined them for taking the decision of forming the Adarsh CHS in the year 1994. The said society was registered much later ie. on 28-9-2004 under the Maharashtra Co-operative Societies Act 1960 as is seen from its registration certificate Exh. AS-58. The objective of the said society as disclosed from its earliest letter dt. 6-8-1994 (Exh.AS- 139), which was addressed by Shri Thakur in his capacity as the Chief Promoter of the said society to the then Chief Minister was, “This is a society of mainly of serving and retired defence officers who have not been able to procure a shelter despite full length of service to the mother land”. The same objective is re-iterated in the letters which were addressed on behalf of the society by its incumbents to the government authorities while applying for grant of government land. HUNT FOR THE GOVERNMENT LAND 25, Initially when Shri Thakur addressed a letter dt. 6-8-1994 (Exh.AS-139) to the Chief Minister, he sought allotment of land in CS. No. 4/600 admeasuring 8300 sq. mtrs. lying adjacent to Oyster and Dolphin buildings in Colaba area. In a subsequent letter dt. 6-1-1995 (Exh.AS-140) addressed by Shri Thakur to the Principal Secretary, Law & Judiciary Department, Government of A119 Maharashtra, it was stated that the said piece of land was surrounded by the defence area and the Government of Maharashtra may not be able to use the said land for any commercial or other purposes. It was also assured that the society would produce the NOC from the defence authorities for allotment of the said land to it. The society's request for allotment of the said land was however not accepted by the GOM and the Collector, Mumbai city by his letter dt. 4-9-1996 (Exh.AS- 143) informed the Under Secretary R&FD with a copy marked to Brig. Wanchoo that in view of the CRZ notification dt. 19-2-1991 issued by the MoEE, no construction could be made upon the land falling within 500 mtrs. from the High Tide Line and therefore the land applied for by the Adarsh CHS could not be allotted to it. A similar letter dt. 29-12-1998 (Exh.AS-146) was later on addressed by the Under Secretary R&FD to Brig. Wanchoo regretting the government's inability to allot the plot of land adjacent to Oyster and Dolphin buildings for the same reason. 25.1 The society would not however give up its efforts so easily. Shri Thakur again addressed letter dt. 20-7-1998 (Exh.AS-145) to the Secretary, R&FD and re-iterated the demand for allotment of the said land stating that as per the Development Plan of Mumbai, a 60.96 mtrs. road has been shown towards Uran bridge and the said road is towards the sea side and therefore there should be no objection from the CRZ point of view. Shri Thakur further assured. that in spite of that if any hitch persisted from CRZ point of view, the allotment of land could be made subject to clearance from the120 MoEF vide Exh. AS-144, Thereafter another letter dt, 23-2-1999 (Exh.AS-147) was addressed on behalf of the society to Shri Narayan Rane, the then Chief Minister, pointing out that the society had been struggling for the last five years to get allotment of the land but the same was denied on the ground of CRZ objection. It was tried to convince that the society had already explained with regard to the CRZ objection and requested Shri Rane to intervene in the matter for allotment of the said land to the society, “For shelter to our members who have dedicated their lives for the services of mother land”, INTERVENTION OF SHRI KANHAIYALAL GIDWANI. 26. For the first few years the society could not do much for achieving its above mentioned objective. Finding that its efforts were falling too short, the office bearers of the society decided to take assistance of Shri Kanhaiyalal Gidwani who was then an active member of the Shiv Sena during the period from 1996 to 2006, and who later on became a member of the Legislative Council from 26-7-2000 to 30-5-2006. Later on, he joined the Congress Party. The evidence of Shri Thakur (A.S.W. No.2) shows that he was introduced to Shri Gidwani by Capt. Kala who advised him to seek the help of Shri Gidwani in getting the government land allotted to the society. Shri Gidwani was a political figure wielding much influence and having direct access to the Chief Minister and other Ministers. Therefore it was decided by Shri Thakur and Brig. Wanchoo to take the help of Shri Gidwani , whoa. agreed to act as a co-ordinator to deal with and represent the society “For the exclusive purpose of allotment of the said plot of land to the society for welfare and housing of Defence Personnel or Army Navy Air Force servicemen or ex-servicemen under the Defence Ministry or in the service or ex-service men of para-military force, Defence Estate Organisation, Coastguards, Military Engineering Personnel or under any of the services of the Defence Ministry exclusively and absolutely qualified in accordance with the bye-laws of the said society” vide para 5 of the declaration-cum- undertaking dt. 9-6-1999 Exh. AS-82. 26.1 The assistance promised by Shri Gidwani was however not unconditional and unqualified. Shri Thakur and Brig. Wanchoo had to execute a declaration cum undertaking dt. 9-6-1999 (Exh.AS-82) in favour of Shri Gidwani who consented to act as a co-ordinator and agreed to represent the society to the concerned competent authorities of the Government of Maharashtra for the purpose of allotment of government land for the said society. In consideration for the assistance promised by Shri Gidwani, both the above mentioned office bearers of the society agreed that 30 flats would be placed at the disposal of the co-ordinator. It is with this assurance given to the co-ordinator Shri Gidwani, the society started its hunt for a suitable plot for constructing its building, 26.2 After Shri Gidwani took over as Co-ordinator, he pursued the matter of allotment of the land in question by writing a number of letters to various authorities including the Chief122 Minister. During the period from 21-6-2000 to 18-3-2002, he wrote at least a dozen of letters to the authorities requesting for allotment of the land in question to the Adarsh CHS. These letters are at Exh. AS-35 to 42 and 45. Out of these letters, the letters dt. 7-8-2000, 25-9-2000, 14-10-2000, 13-2-2001, 16-3-2001, 7-5- 2001, 22-8-2001 and 18-3-2002 were addressed to the then Chief Minister Shri Vilasrao Deshmukh. In most of these letters it was requested to expedite the matter looking to the genuineness of the case and the sacrifice made by the military officers for the mother land. ALTERNATE PROPOSAL FOR ALLOTMENT OF LAND IN QUESTION. 27. It appears that to overcome the obstruction of CRZ clearance, the office bearers of the society even discussed the matter with the Secretary of MoEF, New Delhi who advised them to approach the GOM for change of classification of the plot from CRZ-I category to CRZ-II category. However, after realizing that change of zone in respect of the land in CS No.4/600 was difficult and it would consume further time, the society came with an alternate proposal for allotment of other land i.e. land in question. On behalf of the society a letter dt. 13-1-2000 Exh. GOM-169 was addressed by Shri Thakur to Shri Ashok Chavan, the then Minister of Revenue. It appears from the said letter that prior to its writing, Shri Ashok Chavan had given a personal hearing to the office bearers of the society as is seen from the following recital123 in the said letter which reads, : "We are extremely grateful to you for having given us an opportunity to place our view point before your goodself......”. A similar letter dt. 7-2-2000 Exh. GOM-67 colly. was addressed by the Chief Promoter to the Chief Minister stating "While the changing of zones may take some time and formalities may delay the project, we have an alternative proposal for allotment of a small block admeasuring only 3854 sq. mtrs. of land out of Block VI of Backbay Reclamation Scheme. Presently this land is duly fenced with a compound wall and in physical possession of the Local Military Authorities”. It was pointed out in the same letter that about 15 years back the GOM had proposed to widen Cuffe Parade Road and join it to a 60 mtrs. wide road known as Colaba Uran Road. It was further pointed out that the said proposal came to be dropped since the government had banned reclamation and therefore there was no need to widen the Cuffe Parade Road beyond BEST depot. It was therefore suggested that with little changes in the Development Plan which was then still pending for approval with the UDD, the project of the Adarsh society could be cleared by allotting the land in question which was then in possession of the Local Army Authority. Shri Vilasrao Deshmukh the then Chief Minister made following order on the said letter “Pri. Sec. (Rev.) Pl. call for the proposal and put up immediately. Sd/ 19-2-". 27.1 Pursuant to the said order passed by the Chief Minister Shri Vilasrao Deshmukh, the Revenue & Forest Dept. by its letter dt. 6-3-2000 (Exh. GOM-67 colly.) requested the Superintendent,124 Land Records, to submit a self-explanatory report in the matter along with relevant documents within a period of ten days. Thereafter the Collector, Mumbai city by his letter dt. 13-3-2000 (Exh. GOM-69) directed the Maintenance Surveyor to visit the land in question personally, measure it and submit the map along with his report. Accordingly the Maintenance Surveyor of the land records office visited the land which was shown to him by the representative of the Adarsh CHS on 29-3-2000 and measured the same and prepared a map. Thereafter he submitted his report Exh. GOM-68 dt. 29-3-2000 wherein it was stated that the said land was plot No.87-C in Block No.VI adjacent to Backbay bus depot and that it measured approximately 3758.82 sq. mtrs. He also pointed out that the said land was falling in the proposed road widening of Capt. Prakash Pethe Marg in the Development Plan of MMRDA. 27.2 Before that the Collector, Mumbai city by his letter dt, 28- 3-2000 Exh. GOM-70 called upon the Chief Promoter to submit necessary information as prescribed in Annexure A and B thereof. The Collector also addressed a letter dt. 29-3-2000 (Exh. MOD-59) to the GOC. HQ. Maharashtra & Gujarat area, Colaba pointing out that at the time of the site inspection it was revealed, “The military department has constructed a wall to the above plot and hence government land was protected from encroachment”. It was brought to the notice of the GOC that the same land was applied for by the Adarsh CHS and therefore he called upon the GOC, “To confirm that there is no objection to allot the land to the proposed125 society of the service personnel by the Government of Maharashtra’. To this letter, an unusually prompt reply dt. 5-4-2000 Exh. MOD-7 was given by Col. SS. Jog on behalf of the GOC stating, “The said land falls in Block No.VI of Colaba Division (Backbay Reclamation Scheme- VI) which falls outside the defence boundary. Necessary action at your end may be taken as deemed fit for the welfare of service personnel/ex servicemen /their widows." 27.3. On the basis of the above mentioned reports, the Collector Shri Debashish Chakraborty submitted his report dt. 12- 5-2000 Exh. GOM-17 to the Principal Secretary, R&FD stating that the proposed society was of 40 members from the defence services or retired officers of first grade in Army/Navy and Defence Estates. It was further stated that the defence department had unauthorisedly taken possession of the land and set up a garden by constructing a wall thereon. However, the GOC had clarified that the said land was outside the limits of defence area. It was further reported by the Collector that the Chief Promoter of the said society had given an undertaking on a stamp paper of Rs. 50/- stating that all the terms and conditions mentioned in the GR dt. 9-7-1999 were acceptable to it. The Collector further pointed out that as per the draft Development Plan the said land was reserved for the widening of Capt. Prakash Pethe Marg and therefore no objection certificate was required to be obtained from the MCGM as well as MMRDA before allotment of the land. In the report it was stated that the allottee would be required to pay the occupancy price of Rs. 6,79,476.00 which is126 20% of the total amount of Rs. 33,97,38,000 being the amount calculated at the rate of Rs. 8,400 for the total area of 3758.82 sq. mtrs. as per the ready reckoner. It was clarified that the said occupancy price was subject to the final assessment made by the Dy. Director, Town Planning. In his report the Collector Shri Chakraborty emphasized that since the said land was in possession of the Army, it was first necessary to get it transferred from the defence department to the GOM without seeking redress in any court of law. 27.4. The Dy. Secretary of R&FD by his letter dt. 5-6-2000 Exh. GOM-73 sought information from the Collector on the following points. i) Whether there is a property card in respect of the said land and ifyes, to whom it belong. ii) Whether the government could allot the land unless it was taken in possession from the defence authorities and entered in its name. iii) Whether the land was affected by the proposal of road widening and whether without changing the reservation it could be allotted for residential purpose.127 iv) Whether the eligibility of the members of the said society was examined with reference to the GR dt. 9-7-1999. v) Whether the said land was affected by CRZ Regulations. vi) As per para 3 clause (2) of the Gr. Dt, 30-6-1999 the price of the land as on 1-2-1976 will have to be taken into consideration. It was therefore requested to inform the provisional occupancy price of the land. To this, the Collector submitted his further report dt. 19-6-2000 Exh. GOM-43 wherein it was made clear that the land belongs to the government but its property extract was not prepared and in the draft Development Plan prepared by the MMRDA it was given a plot number only. It was clarified that though the land was in unauthorized possession of the defence department, it was out of BBR Block No.VI and it was reserved for the proposed widening of the Capt. Prakash Pethe Road. Therefore, the reservation will be required to be changed from road to residence. As regards the CRZ clearance , the Collector was of the view that the said land was not affected by CRZ Regulation since there was a permanent structure of BEST depot on the rear side of it. However the Collector recommended that opinion of the UDD/Environment Dept. should be obtained to ascertain this fact. It was stated that steps were being taken to get the valuation of the land assessed as on 1-2-1976 from the Asstt. Director, Town Planning and Assessment, Mumbai.128 SOCIETY’S LETTER TO THE REVENUE MINISTER SHRI ASHOK CHAVAN. 28, As pointed out above, since beginning it was being represented on behalf of the society that it was exclusively for servicemen and ex-servicemen of defence, but later on the society appears to have relented and modified its initial stand so as to allow civilians to become its members. The change in the stand of the society in this respect is indicated by its letter dt. 2-6-2000 Exh. IW-4 addressed to Shri Ashok Chavan, the then Minister of Revenue. This letter states inter alia:~ “Further to our letter dt. 3-1-2000 and personal meeting in your chamber with office bearers of our society on 2-6-2000, we wish to submit the following for your consideration. i) That we are agreeable to accommodate civilian members (members from outside defence services) in our society to the extent of 40%. 19 members against 31 members from defence services. List of 31 members of defence services is enclosed.” It was further stated that the society was prepared to leave 10 ft. to 15 ft. land for further road widening if required. It was stated that there was no question of any CRZ issue since a large building was already constructed on the seaward side of the said land. It Was mentioned that the proposal of construction of 200 ft. wide129 Uran road would not be feasible because of the ban on reclamation and as two multi storeyed buildings namely Bhagirathi and Gangotri had already been constructed in the proposed road alignment. While requesting for allotment of the said land it was stated, "This piece of land which is already in physical custody of Local Military Authorities who have been protecting the land from encroachment since last 25-30 yea PROPOSAL FOR REDUCTION IN THE PROPOSED WIDTH OF CAPT. PRAKASH PETHE MARG. 29, The land in question, the allotment of which was sought for by the Adarsh CHS admittedly falls in BBRS Block No. VI. Abutting the land in question there is Capt. Prakash Pethe Marg on the eastern side which runs north-south in direction The width of the said road as shown in various maps and plans on the record is 18.40 mtrs. There was a garden called Khukri park on the land in question and it was set up by the Army authorities probably with a view to prevent encroachment being made on it from the western side. The said park was fenced with a compound wall and there was an entrance gate to it opening on Capt. Prakash Pethe Marg. In several letters addressed by the Adarsh CHS to the Chief Ministers and Revenue Ministers it is stated that the said land has been in possession of the Army. Even in the Collector's reports Exh, GOM-17 dt. 12-5-2000 and Exh. GOM-43 dt, 19-6-2000 the said land being in the occupation of the Army130 has been acknowledged. Above all, the Letter of Intent Exh, GOM- 4-A dt. 18-1-2003 and Letter of Allotment Exh. GOM-5-A dt. 9-7- 2004 also make a positive mention of the fact that the land has been in occupation of the Army. 29.1. The land which was occupied by Khukri Park is the same land which was sought for allotment by the Adarsh CHS. In the BBR Scheme which was approved by the government in 1972 and which was incorporated in the draft Development Plan of Greater Mumbai, there was a proposal for widening of Capt. Prakash Pethe Marg from 18.40 mtrs. to 60 mtrs. on the seaward side. The road widening to the extent of 60 mtrs, was apparently proposed to provide a link to the proposed Colaba-Uran sea link. The report on Development Plan for BBRS Block III to VI Exh. GOM- 306 mentions that the proposal of road widening of Capt. Prakash Pethe Marg/Jagannath Bhosale Marg will be implemented within a period of first five years from the date of approval to the proposal of the Development Plan. It may be pointed out that the draft development Plan was approved in two parts, first on 3-6- 2000 and second on 17-3-2001. It would therefore be obvious that the land in question would not have been available for allotment unless and until the Development Plan was suitably amended to reduce the proposed width of Capt. Prakash Pethe Marg and also to change the reservation of road to residence. The Adarsh society was fully aware of this difficulty since beginning and therefore in various letters addressed to the government on its behalf, it was suggested to modify the Development Plan. For131 instance in the letter Exh. GOM-86 dt. 8-3-2000 addressed to the Chief Minister, a reference was made to the proposed widening of Cuffe Parade road (Capt. Prakash Pethe Marg) so as to join it to, Colaba-Uran road. It was pointed out that since the government had banned reclamation of sea, the proposal of Colaba-Uran sea link did not materialize. It was therefore suggested, "In view of the above it is submitted that there is no need now to widen the Cuffe Parade road beyond BEST depot in the Backbay as military area starts from that point. In any case the proposal was to terminate the said widening at the junction of Block VI and VII of the Colaba Division. Our proposed block is exactly located at the very junction where military area begins and there is no proposal of any such widening in the military area and therefore with little changes in the Development Plan, which is still pending for approval with the Ministry of Urban Development, our project can be cleared ....” A similar prayer was made by Shri Gidwani in his letter dt. 7-8-2000 Exh.AS-36 addressed to the Chief Minister wherein it was requested as follows : “If due to some technical reasons, there is difference of opinion regarding widening of Prakash Pethe Marg, the widening should be restricted to the jurisdiction of the civil authorities opposite military inspection bungalow , as defence have their own planning body and authority for military areas". 29.2 Since MMRDA was the Planning authority for BBRS Block II to VI, the reduction in the proposed width of Capt. Prakash Pethe Marg could not have been done without its approval. In view of the above mentioned two letters addressed on behalf of132 the Adarsh CHS, the UDD by its letter dt. 10-8-2000 Exh. GOM- 306 called upon the Chief C&TP of MMRDA to submit his report in this behalf. Accordingly Shri V.K. Phatak C&TP submitted his report dt. 13-9-2000 Exh. GOM-308 to the Principal Secretary, UDD stating “Apparently, the southern link ie. Colaba-Uran link is at present not actively pursued. Moreover as pointed out in the letter of Defence Estate Officer dt. 23-9-1999 that in the approach road of Colaba-Uran link High Rise buildings known as Gangotri, Bhagirathi and Choudhary House have already been constructed. It is therefore unlikely that the original alignment of the approach to Colaba-Uran link will continue to be valid any more.” It was however clarified in the said letter as follows: “The question of deleting the reservation of approach road to Colaba-Uran link is however outside the jurisdiction of MMRDA as the SPA for BBRS. However, if such a decision is arrived at and a logical consequence of that, the road width of Prakash Pethe Marg Is to be accordingly reduced , MMRDA would have no objection to such a proposal. Once the width of the Prakash Pethe Marg is determined, development of land requested by Adarsh Co-operative Housing Society will become feasible”. STEPS TAKEN BY THE GOVERNMENT 30. The GOM therefore appears to have decided to accede to the request made by the Adarsh CHS and started taking steps for reducing the proposed width of Capt. Prakash Pethe Marg. By its aN133 order dt. 28-2-2001 Exh. GOM-313 the MMRDA was directed to initiate the modification to the Development Plan by taking recourse to the provisions of section 37 of the MRTP Act. In the first instance the MMRDA was asked to issue requisite notice inviting suggestions/objections upon such modification within a period of 60 days. However since the MMRDA failed to publish the requisite notice, the government, in exercise of its powers under sec. 37(1)-A decided to publish a notice Exh. GOM-312 colly. for inviting suggestions and objections from the general public within a period of one month. proposing to reduce the proposed width of the said road from 60.90 mtrs. to 18.92 mtrs. and the area so deleted to be included in residential zone, partly to be included in parade ground, partly to be included in helipad and garden and partly to be included in BEST depot as per the accompanying plan. A copy of the said plan is annexed to this report as Appendix-VIL It appears that nobody except Rajak Co-operative Housing Society raised an objection to the said modification but the objection was to the inclusion of part of the road in parade ground instead of including the same in residential zone. 30.1. Finally on 10-4-2002 after the Development Plan was finalized, the government in UD department issued a notification under sec. 37 of the MRTP Act, Exh. GOM-378 accepting the proposal for reduction in the proposed width of Capt. Prakash Pethe Marg by modifying the Development Plan. The modification in this respect reads as under: wi \134, “The width of Captain Prakash Pethe Marg as regards to the section of road marked as E-J is reduced from 60.97 mt. to that of 18.40 mt. and the area so deleted is included partly in residential zone (marked as A-B-C-D), partly included in Parade Ground (marked as G-H-I-J), partly included in Helipad and garden area (marked as E-F-G-H) and partly included in BEST DEPOT (marked as C-D-E-F) as shown on plan in blue colour’. Note-1 below this notification states that the development of land within CRZ area shall be subject to the conditions mentioned in MoFF notification dt. 19-2-1991 as amended from time to time. PROCESSING OF THE PROPOSAL FOR ALLOTMENT OF LAND TO THE ADARSH CHS. 31. After a lot of correspondence and references, the R&FD of the GOM prepared a noting dt. 29-4-2002 Exh. GOM-173 giving the details of the progress made in the matter and pointed out that the Collector had not verified the eligibility of the members of the said society with reference to the GR dt. 9-7-1999. It was also noted that the requisite information was not submitted to the Collector by the society. It is seen from various documents on record that several letters were addressed to the Chief Ministers particularly by Shri Gidwani, the co-ordinator of the society for expediting the matter which was pending since long time. Taking the above mentioned facts into consideration, the R&FD put up a ae135 proposal that the government could issue a Letter of Intent for allotment of the land in question to the said society and that final order in this behalf could be issued only after detailed information regarding the members of the said society was submitted. In this respect a detailed note dt. 21-5-2002 Exh. GOM-175 was put up by Shri Gharat, the Under Secretary of the R&FD which was approved by Shri Ramakant Asmar the Jt. Secretary of the said department on 22-5-2002. The Principal Secretary R&FD Sr. D.K. Sankaran also approved the said note by making a separate remark to the effect that as per the opinion given by the UDD, the land in question was falling in CRZ-II category and therefore before making any construction it was necessary to obtain previous permission of the MoEF. He suggested that this condition should be incorporated in the Letter of Intent and before final allotment of the land, eligibility of the membership should be thoroughly examined. It is necessary to state that this noting was approved by the Revenue Minister Shri Ashok Chavan and the Chief Minister Shri Vilasrao Deshmukh. ISSUE OF LETTER OF INTENT. 32, _ In view of the above proceeding the government in R&FD issued Letter of Intent (LOI) Exh. GOM-4 and 4-A on 18-1-2003 in favour of the Adarsh CHS in respect of an area of about 3758.22 sq. mtrs. near plot no. 87 in BBR Block VI on rent by assessing the value of right of occupancy on condition of fulfilling following <136 terms stated therein for the purpose of construction of flats for the members of the said society, a list of whom was annexed to the LOL hh i) A detailed information and affidavits of the members of the society should be submitted to the Collector, Mumbai along with the recent photographs of passport size of each member within two months from the receipt of the letter. il) The members of the society will be eligible to get flats of the carpet area on the basis of the monthly income of their family as per para 3 of the GR dt. 9-7-1999. For that purpose, the amount of occupancy price will be calculated as shown in the said GR. iii) 20% of the total members of the society shall be of SC/ST and NT. iv) The conditions of eligibility of the members of the society are as stated in Annexures A and B. The society will have to give a written undertaking that the terms and conditions stated therein will be binding upon it. v) The society shall produce all the required certificates in respect of the monthly family income of its members to the Collector, Mumbai city. It will be necessary for the members of the society to submit certificates of their employers regarding their monthly income.137 vi) The members of the society shall submit the rent receipts issued by their respective landlords or the society in respect of the premises and the area of those premises occupied by them. Similarly they shall submit to the Collector, Mumbai city documents and certificates showing their domicile in the State of Maharashtra for 15 years. vii) Since the land in question falls in CRZ-II category, it will be obligatory to obtain permission of the MoEF before making any construction thereon. Para 2 of the LOI specifically stated that the above mentioned information and affidavits should be submitted to the Collector, Mumbai city within a period of two months from the receipt of the letter failing which the LOI would stand cancelled. It was further stated that the Collector shall verify the information so supplied by the members of the society by visiting their residences / offices and submit his report to the government, GRANT OF LETTER OF ALLOTMENT. 33. About 18 months after the issuance of LOI in favour of the Adarsh CHS, the government issued LOA in its favour on 9-7- 2004 Exh. GOM-5-A. The LOA states that government land admeasuring 3758.82 sq. mtrs. near plot No. 87-C in BBR Block VI which is in possession of the defence department has been allotted to the Adarsh CHS on occupancy rights for temporary AL f138 occupancy price of Rs. 10,19,19,652 subject to seven conditions mentioned therein. The conditions are almost the same which were stated in the LOI. A list of 20 members of the society was approved by the government. It appears that the society had submitted a list of 71 members but the government directed the Collector to verify the eligibility of those 71 members and after the same was approved by the government, to deliver possession of the land in question. Accordingly possession of the land in question was given to the Adarsh CHS on 4-10-2004 as per the charge receipt Exh. L.W.7. 33.1. _ In view of the society’s letter dt. 19-7-2004 Exh. GOM-77 the R&FD issued a corrigendum dt. 16-8-2004 Exh. GOM-78 as per which two material corrections were made in the LOA. The first was regarding the error in mentioning the correct area of the land in question. In the LOA the same was mentioned as 375.82 sq. mtrs. and the correction was for 3758.82 sq. mtrs. The second correction was for deleting the words which indicated that the land was in possession of the defence department. MOVE FOR SECURING ADDITIONAL FSI OF BEST PLOT. 34. As seen above the LOI in respect of the land in question came to be issued on 18-1-2003. But since, much before that, moves were made by the society to secure additional FSI in respect of the adjoining BEST plot. This is clear from certain letters which were addressed on behalf of the society to the 7139 Principal Secretary, UDD. The earliest letter is dt. 7-1-2002 Exh.AS-42 written by Shri Kanhaiyalal Gidwani to the Principal Secretary, UDD wherein he stated, “Meanwhile I have received a letter dt. 20-10-2001 and dt. 26-12-2001 from proposed Adarsh Co- op. Housing. Society, Colaba with request of adjoining FSI/opening The two for the Military officer's Co-operative Housing Society. letters referred to by Shri Gidwani are at Exh.AS-44 and AS-43 respectively. The first mentioned letter was addressed by the Chief Promoter Shri R.C. Thakur to the Principal Secretary, wherein he wrote, “It will be desirable to give access to this plot from north side also, it being a narrow plot. The access to BEST plot should be part of D.P. Road. This will enable us to have side access to our plot. The width of this road approximately to the BEST should be 15 mtrs. and the society plot should be extended to this road. This will enable us to use the available land/FSI.......” In the second mentioned letter also addressed to the Principal Secretary, UDD, Shri Thakur requested to consider the request for allowing and opening towards BEST approach road also, because of the narrow size of the proposed plot of the society. 34.1, After the issuance of LOI in favour of the society, Shri Thakur wrote a letter dt17-3-2003 Exh.AS-168 to Shri Sunil Tatkare, Minister of State for UDD, thanking him for the allotment of the land in question and making a further request for grant of additional FSI. He has written, “Because of number of members of the society having gone up to 71 (seventy one) which has been approved by the Government of Maharashtra, department of aA140 Revenue, we are finding it difficult in allotting the residential flats to all of them as the plot is smail in size. To overcome the said problem we propose to avail FSI of the area adjacent to our plot which is available for allotment by government as shown in the site plan- Annexed X”. In another letter of the same date Exh. GOM- 129 addressed to the Chief Minister Shri Sushilkumar Shinde, Shri Thakur wrote , "......That our society may be permitted to avail FSI of the plot marked as B on the enclosed plan which is 2669.68 sq. mtr, situated adjoining to our plot on payment of reasonable charges as may be levied by the government. We undertake to keep the land as it is and also submit herewith our no objection to BEST for using the same as approach road to their bus depot. Acopy of the plan annexed to this letter is marked as Exh. GOM-129-A and the same is annexed to this report as Appendix-VIII. A letter containing the same contents Exh. GOM-382 of the same date was also addressed to the Revenue Minister Shri Shivajirao Nilangekar Patil. 34.2. There is a lot of correspondence made by Shri Gidwani and Shri Thakur with the government for allotment of additional FSI and it is not necessary to refer to each and every letter in this respect. It is clear that the government did not consider the proposal for about a year. In fact Shri Sunil Tatkare, Minister of State for UDD by his letter dt. 6-1-2004 Exh. AS-63 informed Shri Gidwani that the said land was reserved for BEST depot in the BBRS and therefore it was not permissible under the provisions of the DCR to use the FSI of that land on the adjoining land. It iN141 was further stated with regret that the society's request was therefore rejected. Despite this fact the Adarsh CHS did not give up its efforts to secure additional FSI in respect of the BEST plot for using the same on the land in question which was proposed to be granted to the society as per the LOI dt. 18-1-2003. 34.3, Finally on 13-7-2004 Shri Gidwani_ again wrote a letter Exh. AS-66 to the Chief Minister Shri Sushilkumar Shinde requesting him to call for a meeting of the concerned officers at the earliest to consider the request for additional FSI as by that time the land in question was allotted to the society as per the LOA dt. 9-7-2004, It was stated in the letter, “This extra FSI will greatly help the society to house the members of the society who are mostly service personnel. Also I will like to draw your kind attention to the fact that the Government of Maharashtra will be generating revenue from this FSI without losing the current status being the BEST’s continuation of use of the land.” \t is seen from Exh.AS-67 colly dt. 19-8-2004 that a meeting was called on 14-7-2004 in the chamber of the Minister of State for UDD in respect of grant of additional FSI to the Adarsh society. The said meeting was attended by AGM (C), BEST, Dy. Superintendent (EST), BEST, State Government's officers in UDD, Revenue, Collector and Shri Gidwani, The minutes of the meeting show that Shri Gidwani stated that as per the directives 71 members were required to be accommodated in the society but the FSI of the land in question was insufficient to accommodate them and therefore additional FSI of adjoining land owned by the GOM which was being used as aL142 an access by the BEST was required. The minutes further show that Shri Ramanand Tiwari, Principal Secretary, UDD expressed his view that it was not feasible to allot the FSI of the adjoining plot to the society and for that purpose the society would have to approach the State Government for allotment of the said land by deleting the reservation of BEST bus depot by following due process of law under sec. 37 of the MRTP Act. This procedural period would be of at least six months. It appears that the Minister and other officials agreed for the same and the meeting was concluded. 34.3 It appears that the UDD of the GOM made a reference to the BEST and called for its specific comments on the proposal of allotting additional FSI of the BEST plot to the Adarsh CHS. The Asstt. General Manager prepared a note dt. 7-12-2004 recording his views in the following words, “We have examined the proposal and it is felt that we may differ with the Principal Secretary, Urban Development's above views expressed by him in the meeting held on 14-7-2004 i. deleting the reservation of BEST depot and then allot the land to the society. In view of the above it is felt that the subjected plot/land should be out of the purview of any reservation and allotment and shall be retained as an exclusive access to the BEST bus depot.” There was another meeting held on 29-12- 2004 at the residence of the Minister of State for UD (Shri Rajesh Tope) at Nagpur. The minutes of the said meeting Exh. GOM-368 show that it was clarified to the Hon. Minister that as far as BEST was concerned it would not grant NOC for de-reservation of land A143 as suggested by Shri Ramanand Tiwari, Prin. Secretary, UDD. Thereafter the Hon. Minister stated that he would discuss the issue with Shri Ramanand Tiwari and further decision in the matter would be taken thereafter. It may be pointed out that this meeting was attended by the Asstt. General Manager of the BEST. Thereafter on 11-1-2005 Shri Tayshetye the Asstt. General Manager of the BEST put up a note before the General Manager observing, “As regards the issue of allotting FSI of the said plot to Adarsh society, it is felt that we may convey to the State Government that it may decide on the request made by the Adarsh society to allow them to utilize the FSI of the subjected plot However, while doing so the Undertaking’s interest shall be fully protected by maintaining the present status of the access to the BEST bus in perpetuity without any encroachment on the said land.” This note was approved by the General Manager on 12-1-2005. On the same day Shri Tayshetye informed the UDD by his letter Exh. IW-15 that the land was being used as an approach road by the BEST buses as an easementary right and that in future also the same user will be required. It was therefore suggested that maintaining the status of the access road of 44.40 mtrs. and keeping the interest of the BEST unaffected, the government may take appropriate decision on the request made by the Adarsh CHS.144 GRANT OF ADDITIONAL FSI TO THE ADARSH SOCIETY. 35. Treating the said letter of the BEST as no objection, the R&FD prepared a note dt. 5-4-2005 Exh. IW-38 that the FSI of the land admeasuring 2669.68 sq. mtrs. in the use of the BEST may be granted to the Adarsh CHS for using the same on the land in question which was granted to it subject to certain conditions on payment of occupancy price of Rs. 6,14,02,640. It was specified that since the said land was falling in CRZ category and since it was reserved as BEST depot, the society will not use the FSI without first getting the reservation of it changed to residence. The construction which the society proposed to make will be subject to the DCR as applicable on 19-2-1991 and it will be obligatory for the society to obtain MoEF's clearance if the cost of the project was more than Rs. 5 crores. It was also stated that the land would be kept vacant as it is, in order to allow BEST buses for ingress and egress to the depot and that no construction would be made upon it. The Adarsh CHS was permitted to make commercial use of 700 sq. mtrs. of the total built up area. This note was approved by the Principal secretary, Revenue as well as the then Chief Minister Shri Vilasrao Deshmukh, Pursuant to the said noting approved by the Chief Minister, the R&FD issued a memorandum dt. 5-8-2005 Exh.AS-93 in favour of the society and granted its request for additional FSI subject to the same conditions enumerated in it. It was made clear that the society shall not use the additional FSI without first complying with the first three conditions which contemplated change of reservation a. \145, from BEST depot to residence, obtaining of clearance from the MoEF if the cost of the project was more than Rs. 5 crores and without the prior permission of the Special Planning Authority i. MMRDA and MCGM. 35.1. Thereafter a note dt. 16-1-2006 Exh. GOM-325 was put up by the UDD again in respect of the society's prayer after receiving a query in this regard from CM's Secretariat for additional FSI. It appears that the note was for the purpose of changing the zone of the BEST plot and it was suggested that instead of following the procedure under sec. 37 of the MRTP Act, recourse could be had to the provisions of section 50 of the said Act which contemplate deletion of reservation of designated land for interim draft of final Development Plan because the land was no longer required for public purpose for which it was designated or reserved. This note was approved by the Principal Secretary, UDD Shri Ramanand Tiwari on 17-1-2006 and was further approved by the Chief Minister Shri Vilasrao Deshmukh. Thereafter the GOM in exercise of its powers under sec. 50(2) of the MRTP Act issued a notification dt. .....2-2006 Exh. GOM-326 in which it was stated, “The government hereby sanctions the proposal for deletion; thereby deleting the said land from the said reservation of BEST depot and including the same in the residential zone subject to {following conditions :— The said land shall always be kept open without any construction in future as the approach road to BEST depot.” |146 CRZ CLEARANCE FROM MoEF. 36. As stated above, the Adarsh CHS was required to obtain previous clearance from the MoEF before _ starting the construction work. Both the LO! Exh. GOM-4 and LOA Exh. GOM- 5A contained a specific condition to that effect so far as the construction on the land in question was concerned. The same condition was incorporated in the notification dt nil Exh. GOM- 326 as per which additional FS! of the BEST plot was allotted to the Adarsh CHS. The LOA in respect of the land in question was issued in favour of the Adarsh CHS on 9-7-2004 whereas the notification granting additional FSI of the BEST depot was granted to the said society in February, 2006. It is however pertinent to note that Shri P.V.Deshmukh Dy. Secretary, UDD (who subsequently became a member of the Adarsh CHS) wrote a letter dt. 5-10-2002 Exh.AS-295 to the MoEF seeking “development permission on land deleted 60.96 mts. to 18.40 mts. Road for residential purposes. BBR Block Il to VI, Adarsh Co-op. Hsg. Society’. It was stated in the letter that the State Government had decided to allot plot under reference to the Adarsh CHS for residential development. It was therefore requested that NOC for development of plot under reference may be issued. There is no document on record to show that the Adarsh CHS sought CRZ clearance from the MoEF. We shall deal with this aspect in details AL |17 while dealing with issue No. 9 which relates to obtaining of requisite environmental permissions and clearances. 36.1. It appears that thereafter some more letters were exchanged by Shri Deshmukh with the MoEF in connection with development permission to the Adarsh CHS. On 11-3-2003 Exh. AS-86 Shri Senthil Vel, Jt. Director, MoEF replied to Shri Deshmukh that the proposed residential complex falls within CRZ-II area and that the MoEF had already delegated the powers to the concerned State Government for undertaking development in CRZ-II and that the proposed construction may be taken up as per the CRZ notification of 1991. Thereafter on 15-3-2003 Shri Deshmukh addressed a letter Exh. MMRDA-47 to the Chief Engineer (DP) MCGM informing that the MoEF has communicated its no objection to allow the said residential development. Copies of this letter were marked to the Chief Planner, MMRDA, Executive Engineer, MCGM and the Chairman of Adarsh CHS. It appears that the society treated the two letters Exh.AS-86 and MMRDA-47 as being CRZ clearance contemplated by the conditions mentioned in the LOI, LOA and the notification under which additional FSI was granted to it. The MMRDA also treated the letter Exh. MMRDA-47 as CRZ clearance given to the Adarsh CHS by the GOM and accordingly proceeded to approve the plans and also issued C.C. 36.2. Shri Simpreet Singh, a social activist of an organization called National Alliance of People’s Movement made complaints AON148 about the allotment of land in question to the Adarsh CHS and about the violation made by it of the CRZ Notification 1991. He forwarded his complaint to various authorities including MoEF. It appears that thereafter a show cause notice was issued to the Adarsh CHS by the MoEF for the alleged violation of CRZ Notification. The Adarsh CHS sent a detailed reply to the said show cause notice through its advocate Shri Satish Maneshinde. After considering the said reply, the National Coastal Zone Management Authority recommended that the unauthorized structure put up by Adarsh CHS be removed. Thereafter the Director of MoEF by his order dt. 14-1-2011 Exh.C-46 directed the removal of the unauthorized structure of Adarsh CHS and to restore the land to its original condition failing which the MoEF would take an action under sec. 15 of the Environment (Protection) Act 1986. Feeling aggrieved by the said order, the society has moved the Bombay High Court by filing writ petition No, 2407/2010 for quashing and setting aside the impugned order passed by the MoEF. The said writ petition is still pending and it is reported that recently the Adarsh CHS has moved the High Court for transferring the said writ petition to the National Green Tribunal. CONSTRUCTION OF THE BUILDING OF ADARSH CHS. 37. The Adarsh CHS appointed Shri Bharat Yamsanwar of Team One Architect (I) Pvt. Ltd, as the Principal Architect and he submitted the plans of the proposed work along with other 1he 149 requisite documents and application to the CT&CP, MMRDA for approval Exh. AS-191 dt. 21-6-2005. It may be pointed out that for the area falling in BBRS, the MMRDA has been appointed as Special Planning Authority from 1983. In due course the plans were approved by the MMRDA and first commencement certificate (C.C.) Exh. AS-213 was issued on 6-9-2005. As per this C.C, permission was granted under sec. 45 of the MRTP Act for construction up to plinth level for development of the proposed residential building consisting of stilt plus 14 upper floors with a plinth area admeasuring about 414.93 sq. mtrs. subject to various conditions incorporated therein, one of which was that the development work in respect of which permission was granted under the C.C. was liable to be revoked if the development was not carried out or the user thereof was not in accordance with the sanctioned plans. The second C.C, Exh.AS-217 was issued on 11-6-2007 and it was for the proposed development of the residential building consisting of stilt plus two level podium plus four upper floors consuming 1161.72 sq. mtrs. out of permissible built up area of 7764.49 sq. mtrs. The second C.C. contained 12 conditions, one of which was that the applicant shall obtain permissions under the provisions of other applicable statutes, wherever necessary, prior to commencement of the construction. 37.1. The third C.C. Exh.AS-234 came to be issued on 22-1-2008 and it was for the proposed development of the residential building consisting of stilt plus two level podium plus 27 upper150 floors consuming built up area of 7692.64 sq. mtrs. ‘This C.C. contained 15 terms and conditions one of which was that the applicant society shall comply with the conditions mentioned in the letter dt. 1-9-2007 issued by the High Rise committee of BMC. It was stated in this C.c. that the earlier C.C. dt. 11-6-2007 was cancelled. It may be pointed out that all the three C.Cs. were to be valid for a period of one year from the date of issue but they could be renewed thereafter, The fourth and last C.C. Exh.AS-254 was issued on 4-8-2010 for the proposed additional 28th floor and amendments in other floor plans of the residential building for proposed total built up area of the entire building was to be of 8401 sq. mtrs. This C.C. was also to be valid for a period of one year and it included 18 conditions. REFERENCE TO THE HIGH RISE COMMITTEE 38. The GOM by its GR dt. 28-7-2004 Exh. IW-20 constituted a technical committee for scrutiny of proposals of High Rise buildings having height of more than 70 mtrs. The committee is of an advisory nature and it has to advise the Municipal Commissioner regarding the feasibility of development proposals that might be referred to the Commissioner. It is however open to the Commissioner to overrule the recommendations made by the committee, after giving proper and reasonable justification. As per the plan Exh. IW-32 which was prepared by Team One Architects the building of the Adarsh CHS was to be of 27 floors with a height of 97.60 mtrs. up to terrace. The height of the ano151 building up to the lift room was to be of 102.80 mtrs. and the height up to overhead tank was to be of 104.46 mtrs. In view of this position, the case of the Adarsh CHS was referred to the High Rise Committee, The note Exh. IW-79 dt. 23-8-2007 prepared by the Chief Engineer (DP) of MCGM shows that the reports and drawings in respect of the building of Adarsh CHS were placed before the High Rise Committee for its scrutiny on 3-1-2007. The proposal envisaged construction of a high rise residential building comprising of two wings having stilt plus two level podium plus first and second floor for commercial use plus third to 27% upper residential floors with a height of 97.60 mtrs. up to terrace floor level. After scrutiny of the relevant papers and discussion with the members , the said proposal was accepted on 21-6-2007. 38.1. About two and half years i.e. on 14-10-2009 after the High Rise Committee had approved the proposal of Adarsh building for the height of 97.60 mtrs., a meeting was held in the Chamber of the Municipal Commissioner Dr. Jairaj Phatak which was attended by Shri Kanhaiyalal Gidwani, the structural consultant Shri Umesh Kamat and architect of M/s. Team One Architect Shri Parish Kapse. In that meeting it was submitted that the structural design of the building was for the height of 103.40 mtrs. but the architectural plans were submitted for the height of 97.60 mtrs, which was approved by the said High Rise Committee. It was pointed out that the society had already constructed one more floor raising the height up to 100.70 mtrs. which was within AL152 the limit of the height scrutinized by the High Rise Committee. The Chief Engineer (DP) of MCGM_ suggested that there was no necessity to obtain a fresh NOC from the High Rise committee. This suggestion was accepted by the Municipal Commissioner Dr. Jairaj Phatak with a rider that the approval of the MMRDA may be obtained vide Exh. AS- 284. It is not in dispute that the MMRDA regularized the construction of 28* floor by imposing a penalty of Rs 39,74,235 on the Adarsh CHS on 4-8-2010. 38.2. The Occupancy Certificate dt. 16-9-2010 Exh. AS-132 was issued by the MMRDA in respect of the residential building consisting of stilt plus two level podium plus 28 upper floors with total built up area of 8401 sq. mtrs. against the permissible built up area of 8402 sq. mtrs. subject to 13 conditions enumerated therein one of which was that the provisions in the proposal which were not conforming to the applicable DCR and other Acts were deemed to be not approved. However, in the next month only i.e. on 30-10-2010 the government in UDD, in exercise of its powers under sec. 154 of the MRTP Act passed an order Exh. MMRDA-60 and directed the MMRDA to revoke the Occupancy Certificate on the ground that the Adarsh CHS had not obtained any CRZ clearance from the MoEF. Accordingly the Metropolitan Commissioner of MMRDA communicated to the Principal Architect of Team One Architect, and revoked the O.C. granted to the Adarsh CHS on the same day.153 MEMBERSHIP OF THE ADARSH CHS. 39, The earlier letters which were addressed on behalf of the Adarsh CHS to the Chief Ministers, Revenue Ministers and Principal Secretary of UDD to which reference is already made above, make it clear that it was represented to the government that a plot of land was required for the purpose of providing housing to the servicemen and ex-servicemen of the defence department. It was also represented that the proposed society was going to be exclusively for the servicemen and ex-servicemen of the defence department. But later on the society diluted its stand and allowed civilian persons to be its members. Initially a list of only 41 members was submitted to the GOM out of which the government approved 20 members only. The list of those 20 members is annexed to the LOA Exh.GOM-5S-A dt. 9-7-2004. It included 6 servicemen/ex-servicemen of the defence department and the remaining 14 were all civilians. 39.1 One of the conditions in the LOA Exh. GOM-5-A was that the Collector should scrutinize the eligibility of at least 71 members and get the same approved from the government before delivery of possession to the society. The record shows that later on the society submitted additional lists of its proposed members to the Collector from time to time for the purpose of verifying their eligibility and after scrutiny thereof by the Collector, the GOM finally approved a list of 103 members. The increase in the number of members was on account of grant of aL154 additional FSI to the society. The final approved list of 103 members of the society is annexed to this report as Appendix VIL. 39.2 The GOM had issued a G.R. dt. 9-7-1999 Exh. IW-3 laying down the policy regarding allotment of government lands to Co- operative Housing Societies in the State. The said GR has two annexures A and B. The said GR lays down certain conditions regarding el ity of members of Co-operative Housing Societies to which government lands have been allotted. There are several conditions and two important conditions therein relate to income limit of the proposed members and minimum 15 years domicile in the State of Maharashtra. So far as the condition relating to income is concerned, the upper limit for the beneficiaries other than government employees is between Rs. 7501 and Rs. 12500 for admissible carpet area of 650 sq. ft. However there is no such income limit for entitlement of those persons to whom admissible carpet area is 1076 sq. ft. Subsequently the GOM relaxed the condition regarding income and raised it to Rs. 20,000 as per the GR dt. 25-5-2007 Exh. AS-78. As regards the condition of domicile, Annexure A to the said GR requires, minimum 15 years domicile in the State of Maharashtra in order to be eligible to become a member of any Co-operative Housing Society in the State. However, as per clause (1) in Annexure A to the said GR it is clarified that this condition will not be applicable to the government servants deputed to the State of Maharashtra, Members of the Parliament elected from the State of Maharashtra,155 Members of the Legislative Council and Legislative Assembly, inservice and ex-servicemen and retired government employees in the State. 39.3. As regards the other conditions of eligibility, Annexure A specifies following conditions of eli ty and they are, (i) Applicant not having any employment, business or source of income shall not he eligible, (ii) Monthly income of the applicant should be decided on the monthly income of his family for the preceding 36 months, (iii) The applicant can apply for only one flat in the concerned Co-operative Housing Society, (iv) The applicant or his spouse or his or her minor child or any person dependent on him or her should not be a member of the Co- operative Housing Society within the area of operation of the concerned society, (v) The applicant or his spouse should not be holding any plot or premises already given by the government at concessional rate, (vi) If the applicant who is a government employee dies during the tenure of his service then his wife or her husband will be cligible to get membership of the society till the prescribed date of his or her retirement, (vii) A government employee in order to be eligible for membership must be in government service on the date on which Letter of Intent would be given to the concerned society. 39.4, It may be pointed out that the GOM issued GR dt. 25-5- 2007 Exh.AS-78 declaring its revised policy in the matter of allotment of government land to private housing societies and156 prescribing eligibility criteria for being members of such society. Condition No.9 in Annexure A to the said GR is to the effect that if the persons who became member of Co-operative Housing Societies after 1-1-2002 have more than two children then they would be ineligible for being members of such societies. It is clarified that this condition would also be applicable to the permanent members of the society. It appears that this new condition which was absent in the GR dt. 9-7-1999 came to be included in the Gr. 25-5-2007 in view of the supplementary GR dt. 10-2-2001 issued by the government in R&ED. (vide Exh. AS-70). 39.5. Applications of persons desirous of becoming members of the society were to be scrutinized by the Collector as per the directions given in the LOI and LOA. The Collector was supposed to submit his report to the government regarding eligibility or otherwise of the applicants to the government for final approval. In this connection it may be pointed out that the LOI dt. 18-1- 2003 Exh. GOM-4-A contains a direction to the Collector, Mumbai to submit detailed information along with affidavits of the members of the society within two months otherwise the LOI would stand cancelled. The Collector was further directed to make home visits in order to verify the eligibility of the members of the society. VALUATION OF THE LAND IN QUESTION AND ADDITIONAL FSI GRANTED TO THE SOCIETY.157 40. The LOA dt. 9-7-2004 Exh. 5-A states that the land in question was granted to the society on occupancy right and the valuation of the occupancy right was temporarily fixed as per the ready reckoner at Rs. 10,19,19,652. However the final valuation of the land in question was to be made by the Director, Town Planning and the occupancy price of the land in question would be 20% of the valuation so made by him. The note dt. 16-6- 2004 put up by the R&FD (Exh. GOM-180) states that as per the ready reckoner of 1999 the value of the land was calculated at the rate of Rs. 8400 per sq, ft. ie. Rs. 90,384 per sq. mtr. as in the year 1999 and adding 10% increase per year in the said value, the valuation of the land in question would be Rs. 1,35,574 per sq mtr. 20% of the total valuation of the land admeasuring 3758.22 sq. mtrs. as per the ready reckoner was worked out at Rs. 10,19,19,652. The final valuation of the land in question was worked out by the Dy. Director, Town Planning, Mumbai at the rate of Rs. 1,15,000 per sq. mtr. and the total valuation of the entire land in question was calculated at Rs. 49,09,84,150. 40.1, As stated earlier the additional FSI in respect of the BEST plot bearing plot no. 87-C was allotted to the society on the same terms and conditions. The valuation in respect of the said additional FSI admeasuring 2669.68 sq. mtrs. was made at Rs. 25,33,43,850. The 20% of both these amounts together come to Rs, 14,88,65,600 which was the value of the occupancy rights which the society was liable to pay to the government.158 40.2. After having understood the back ground facts of the matter, it would be now proper to deal with the remaining terms of reference i.e. Term Nos. 3 to 13 ad-seriatim. Issue No.3: Whether the reduction of the width and the changes of the reservation from road to residential in respect of Captain Prakash Pethe Marg was in accordance with law.? MODIFICATION OF DEVELOPMENT PLAN 41. The factual aspect of this issue is already stated in para 29, 30 and 31 above. Therefore to avoid repetition, the same need not be restated here. This issue contemplates legality or otherwise of two things in respect of Capt. Prakash Pethe Marg viz. reduction of width and change of reservation from road to residential. In this connection it is important to bear in mind that the land in question i. CS No. 652 i carved out of the proposed expansion of the width of Capt. Prakash Pethe Marg. The original width of this road is 18.40 mtrs, and under the Development Plan it was proposed to be widened to the extent of 60.97 mtrs. However the proposed widening of the said road was given up and the width of the road in the section marked by letters E-] in the plan was maintained to its original size. It will thus be seen that the reduction is not in the existing width of the road but in the proposed width of the road. The final notification was issued by the GOM in this respect on 10-4-2002 Exh. MOD-60. The159 modification in the Development Plan in the instant case so far as Capt. Prakash Pethe Marg is concerned, is twofold i.e. (i) reduction in the width of the road and (ii) deletion of reservation of road and change thereof to residential. Both these things have been done under the same notification. 41.1. Chapter III of the MRTP Act, 1966 contains provisions regarding Development Plan. So far as modification of Development Plan is concerned the relevant section is section 37. It is true that section 22-A also contemplates modification of substantial nature in the Development Plan but the provisions contained therein are not relevant for our purpose for the simple reason that section 22-A contemplates modification of a substantial nature in the draft Development Plan, whereas Section 37 contemplates modification of final Development Plan and therefore the provisions contained in section 37 would be relevant for our discussion. Hence they are reproduced as under:- 37. Modification of final Development Plan. (1) Where a modification of any part or any proposal made ina final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government (shail, within ninety days from the date of such direction, publish a notice) in the Official Gazette (and in such other manner as may be determined by it) inviting objections and160 suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. (1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority. (1AA}(a)_ ‘Notwithstanding anything contained in sub-sections, (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development Plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice, and shall also serve notice on all persons161 affected by the proposed modification and the Planning Authority. (b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its consideration. The Planning Authority shall, thereupon, submit its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the government. (c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, publish the approved modification with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development Plan shall be deemed to have been modified accordingly (18). (2). The State Government may, (make such inquiry as it may consider necessary) and after consulting the Director of Town Planning by notification in the Official Gazette, sanction the modification (***) with or without such changes, and subject aL162 to such conditions as it may deem fit, or refuse to accord sanction. If a modification is sanctioned, the final Development Plans shall be deemed to have been modified accordingly. “ 41.2. The provisions of section 37 quoted above need to be summarized for proper appreciation and in our opinion the best way to do the same is to refer to the summary as given in para 31 of the decision given by a Division Bench of the Bombay High Court ( BN. Srikrishna & $.S. Parkar JJ.) in the case of Vijay Krishna Kumbhar Vs. the State of Maharashtra and ors. 2000 (2) Bom. GR. 293. It reads as follows: “Section 37 provides the procedure to be adopted for modification of final Development Plan. If the proposal for modification is of such nature that it would not change the character of Development Plan, the Planning Authority, may, or when so directed by the State Government, it shall publish a notice in the Official Gazette inviting objections and suggestions to the proposed modifications and after giving one month’s time and hearing all persons concerned or affected, submit the proposed modifications to the State Government for sanction. If the Planning Authority fails to issue the notice as directed by the State Government, the State Government itself is empowered to issue such a notice. After making inquiry as it may constder necessary and after consultation with the Director of Town Planning, the State163 Government is empowered to issue a notification in the Official Gazette sanctioning the modifications with or without such changes and subject to such conditions as may deem fit, or refuse to accord sanction. If a modification is sanctioned, the final Development Plan shall be deemed to have been modified accordingly.” 41.3. It is important to bear in mind that what was sought to be modified was the final Development Plan and not the draft Development Plan. The final Development Plan was already approved and sanctioned by the GOM partly in 2000 and partly in 2001. In view of this position, the relevant provisions of the MRTP Act are the provisions of section 37(1) and not section 22-A which contemplates modification of a substantial nature in the draft Development Plan. As observed by a Division Bench of the Bombay High Court in the case of M.A. Panshikar Vs. State of Maharashtra - 2002 (5) Bom.C.R. 318, section 37 comes into operation after the plan has become final and section 22-A is not at all attracted to a modification sanctioned under sec. 37 of the MRTP Act. Section 22-A is relevant only at the stage of preparation of draft Development Plan and its modification by the Planning Authority or the State Government. Section 37 becomes applicable when the finalized Development Plan is sought to be modified. It was further observed that the concept of modification of a substantial nature is not relevant while considering modification of the final Development Plan under sec. 37 of the MRTP Act. In KL i\164 view of this position, what is required to be seen is whether for effecting modification in the final plan ie. reduction in the width of Capt. Prakash Pethe Marg and deleting the reservation from road to residential was done after complying with the requirements contemplated by section 37 of the MRTP Act. 414, It would not be out of place to state here that the proposed Colaba- Uran Sea link was under consideration of the government and the widening of Capt. Prakash Pethe Marg to the extent of 200 ft. was apparently proposed to provide a link to the said sea link. However, later on Colaba- Uran Sea Link ‘was not actively pursued in view of the fact that certain high rise buildings such as Gangotri, Bhagirathi and Choudhary House were already constructed on the approach road to the said sea link with the result that the original alignment of the approach to Colaba -Uran Sea link became no more valid. These facts are clear from the letter of the Metropolitan Commissioner of MMRDA dt. 13-9-2000 Exh. GOM-308 addressed to the Principal Secretary, UDD. In the said letter the Metropolitan Commissioner referred to the proposal for reduction of the width of Capt. Prakash Pethe Marg and observed “However, if such a decision is arrived at and a logical consequence of that, the road width of Prakash Pethe Marg is to be accordingly reduced, MMRDA would have no objection to such a proposal. Once the width of the Prakash Pethe Marg is AL \165 determined, development of land requested by the Adarsh Co-op. Housing Society will become feasible.” 41.5. Similarly, the government by its letter dt. 23-11-2000 Exh. GOM-310 sought a report of the Dy. Director, Town Planning in connection with the widening of Capt. Prakash Pethe Marg. Accordingly the Dy. Director by his letter dt. 12-12- 2000 Exh. GOM-311 submitted his report opining that if the proposed Uran road of the width of 60.96 mtrs. as shown in the Development Plan is dropped or diverted elsewhere then only the proposed width of Capt. Prakash Pethe Marg could be reduced. 41.6. So far as the procedural requirements in this respect are concerned, it is seen that the proposal to reduce the width of Capt. Prakash Pethe Marg was initiated at the instance of Shri Kanhaiyalal Gidwani, the Co-ordinator of the Adarsh CHS. Before proceeding to issue notice about the modification of the said road, the UDD by its order dt. 28-2-2001 Exh. GOM-313 put forward the said proposal before the Special Planning Authority ie. MMRDA calling upon it to initiate modification by taking recourse to the provisions of section 37 of the MRTP Act by inviting suggestions and objections from the public within a period of 60 days. However, since the MMRDA failed to issue the requisite notice, the GOM on its own accord issued a notice dt. 3-10-2001 Exh. GOM-312 under sec. 37(1A) calling for objections and suggestions from the public within a period of166 one month for the proposed modification in respect of Capt. Prakash Pethe Marg. By the said notice the GOM appointed Dy. Director of Town Planning, Gr. Mumbai as an officer under section 162(1) of the MRTP Act to make inquiry and submit his report to the government within 30 days. 41.7. Accordingly the Dy. Director, Town Planning submitted his detailed report dt. 23-11-2001 Exh. AS-166 to the Principal Secretary, UDD informing that objection was raised. by one Shri Chandrashekhar on behalf of the members of Rajak Co- operative Housing Society on 29-10-2001 for inclusion of the portion marked by letters G,H.LJ in the parade ground (Vide the plan at Appendix-VI1). According to them on the said portion of land they have their huts and that they had already submitted a proposal for redevelopment of the said slum area. The report of the Dy. Director however states that the objection was without any substance. He therefore submitted that all the proceeding under sec. 37 of the MRTP Act had been completed and therefore he recommended to the government to sanction the proposed modification in the Development Plan regarding reduction of the width of Capt. Prakash Pethe Marg as suggested. Thereafter the GOM issued the notification dt. 10-4- 2002 Exh. GOM-378 colly. and sanctioned the proposal regarding the said modification in exercise of its powers under sec. 37 (2) of the MRTP Act. The modification sanctioned by the GOM is already reproduced in para 30.1 above. At this stage it is important to point out that the said notification contains the167 following note which reads, "(1) Development of land within Coastal Regulation Zone area shall be subject to the conditions mentioned in Govt. of India, Ministry of Environment and Forests No. SO 114 (E) dt. 19% February 1991 and as modified by Govt. of India, Ministry of Environment & Forests from time to time’. NOTICE TO MOD/LMA WAS NECESSARY 41.8. Shri Merchant, the Id. Senior Counsel of the Commission pointed out that before carrying out the said modification no notice was given to the MOD. He drew our attention to the provisions of section 37(1) of MRTP Act which inter alia state, “cue and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons...” Such a special notice is, in addition to the notice to be published, in official gazette as well as notice to be given in any other manner for inviting objections and suggestions from any person. According to Shri Merchant, the MOD/LMA_ was the affected person and as such a special notice ought to have been given to it inviting its suggestions and objections, if any, to the proposed modification. This was all the more necessary in view of the fact that the land in question was admittedly in possession of the MOD/LMA in the form of Khukri park. But for the proposed modification, the said land would have gone into the proposed widening of Capt. Prakash Pethe Marg and would not have been available for allotment to Adarsh CHS. There is no dispute of this fact and as stated earlier in thisa\ 168 report there are letters addressed by Shri Kanhaiyalal Gidwani and Shri R.C. Thakur that the land is in possession of the MOD/LMA which has put up a compound wall around it to protect it from being encroached by others. Moreover the LOI as well as the LOA also specifically refer to the land in question “as being presently in the occupation of defence department”. (ar dm fearren seat sseN). 41.9. The question which therefore arises for consideration is whether the MOD could be regarded as affected person within the meaning of section 37(1) of the MRTP Act? It is true that this Commission has already rejected the claim of the MOD that the land in question belongs to it and held that the same belongs to the GOM. Therefore without any legal title to the land in question, could the MOD be treated as affected person within the meaning of section 37(1). In the BEST Workers Union Vs. State of Maharashtra & ors. reported in 2008 (5) ALL MR 848 a Division Bench of the Bombay High Court observed in para 51 of the judgment as follows: “In the context of section 37 of the MRTP Act 1966, when we refer to the term “Person interested’, it always means a person having some right which is recognizable in law over or in respect of such property in respect of which such an action under sec. 37 is taken. A person who in common parlance is only “Interested” in a land having no such right which is recognizable in law cannot be termed as a person affected by an action under sec. 37 of the MRTP Act 1966.”169 41.10. Itis true that the MOD has no right of ownership to the land in question. However it cannot be ignored that at the relevant time when the modification in the Development Plan was proposed to be made and even thereafter, the MOD was admittedly in possession of the land in question. In this connection reference may also be made to the evidence of Shri Kanhaiyalal Gidwani. In para 64 of his evidence, he has stated “It is true that on the date of this letter (Exh. GOM-77) i.e. 19-7- 2004 the society was not in possession of the land in question. The possession was with the LMA on that day’. In spite of lack of title to the land in question, the MOD, in case of its dis- possession thereof, could have very well filed a legal action under the provisions of section 9 of the Specific Relief Act 1963 against the person dis-possessing it and sought restoration of possession irrespective of the question of title. It must therefore be said that the MOD had some legal right, to the extent stated above, to the land in question. Viewed from this angle, it will have therefore be said that the MOD was certainly a “person affected” within the meaning of section 37(1) of the MRTP Act and a notice to it ought to have been served for the proposed modification. It is important to bear in mind that service of such a notice on the affected person is mandatory as. indicated by the word “shall” in section 37(1) of the MRTP Act. Under these circumstances, it cannot be said that there was full compliance of the provisions of section 37(1) of the MRTP Act before modifying the Development Plan.170 WHETHER THE SAID MODIFICATION AMOUNTS TO CHANGE IN THE CHARACTER OF THE ENTIRE DEVELOPMENT PLAN. 42. Coming to the substance of section 37(1) of the MRTP Act, the most important thing required to be considered is that the modification in the Development Plan should be of such a nature that it will not change the character of such Development Plan. It therefore becomes necessary to see as to whether reduction of the width of a road in the final Development Plan and the inclusion of the balance area of the said road in residential would change the character of the Development Plan. Shri Dipan Merchant the Id. Sr. Counsel for the Commission submitted that such modification amounts to change of the character of the Development Plan. However, upon consideration of several decisions cited at the bar, it is not possible to accept the submission of Shri Merchant. In this connection reference may be made to the following decisions: i) In Bombay Dyeing & Mfg. Co.Ltd. Vs. Bombay Environmental Action Group & ors. reported in AIR 2006 S.C. 1489, the Supreme Court observed in para 249 as follows: “A Development Plan is an organic document in the sense that periodic changes are contemplated thereby. A Development Plan is required to be changed every 20 years. Such changes are to be brought about keeping in view the past experience of the Planning Authority and the intended future development of the town. While, therefore, interpreting the words “Change in the171 character of plan” the question would be as to whether the change in the character is referable to alteration of the entire plan. The change in the character, would therefore, necessarily mean the change in the basic feature thereof and the entire plan as a whole wherefor the same must be read in totality.” ii) In Mihir Yadunath Thatte Vs, State of Maharashtra & ors. reported in 2007 (Supp.) Bom.C.R. 308, the question was whether the conversion of a plot admeasuring 1.75 hectares from Hill Top Hill Slope Zone (HTHS ZONE) to residential zone amounted to change in character of the Development Plan of the city of Pune. The Division Bench of the Bombay High Court observed that, it will have to be seen whether the modification in the Development Plan brings about Whether such the loss of identity of the original plan as a whole, change would result in disappearance of the distinguishing features of the Development Plan and whether it would destroy the characteristic feature of the Development Plan. It was observed, “If every modification in the Development Plan is to be construed as a change in the character of the Development Plan then section 37 of the Town Planning Act may be rendered otiose and of no avail. That is not the scheme of section 37. The validity of the modification in the Development Plan has to be tested on the touch stone of the alteration in the character of the Development Pian.” The Division Bench therefore opined that the conversion of 1.70 hectors from HTHS zone to residential aLa2 zone did not amount to change in character of the Development Plan of the city of Pune. iii) The third decision in this respect is again by a Division Bench of the Bombay High Court in the case of Sangharsh Kruti Samiti, Nagpur Vs. State of Maharashtra & ors. reported in 2007(2) Mh.LJ. 681 wherein the fact was that the government issued a notification whereby user of the land in question was changed from park to commercial. The Division Bench observed, “In the instant case, proceedings were initiated for a change of user only in respect of land in question as specified in the Development Plan and the State Government by the impugned notification dt. 30-1-2003 permitted such change of user, which restricted only to the land in question and therefore, it does not amount to changing the character of the whole Development Plan. What is prohibited as per provisions of section 37 of the MRTP Act is modification in the Development Plan of nature, which will change the character of the Development Plan as a whole and not modification which is limited in its application.” iv) In the case of M.A. Panshikar Vs. State of Maharashtra (supra) the question was whether increase in the FSI in respect of a Gaothan land from 1.33 to 2.00 amounted to 4 modification changing the character of the Development Plan. In para 47 of the judgment, the Division Bench observed that the modification was not such as would bring about a change in173 the character of the Development Plan. It was pointed out that the modification of the D.C. Regulations as sanctioned by the government is applicable only to cases of reconstruction/ redevelopment undertaken by the Corporation of the owners of the existing authorized buildings destroyed by fire, collapsed, demolished etc. It was not as if there was a general increase in the FSI and any builder or developer could raise a structure with FSI: 3. It is only in the cases specified where such increased FSI was permissible. 42.1, In the light of the law laid down by the above referred decisions and having regard to the modification made in the Development Plan of BBRS Block III to VI, it cannot, by any stretch of imagination, be said that the reduction in the proposed width of Capt. Prakash Pethe Marg from 60.97 mtrs. to 18.40 mtrs. and inclusion of the area so deleted partly in residential zone, is a modification of such a nature as to change the nature of the entire Development Plan. WHETHER THE OBJECT OF THE SAID MODIFICATION WAS VALID. 43. After testing the lawfulness or otherwise of the modification relating to Capt. Prakash Pethe Marg in the light of the provisions of section 37 of the MRTP Act, it will have to be further tested on the touch stone of the object of the said modification. We have already referred to the various letters of the Chief Promoter Shri R.C. Thakur and the co-ordinator Shri a174 Kanhaiyalal Gidwani requesting the government to reduce the proposed width of Capt. Prakash Pethe Marg in order to create a plot of land which could be allotted to the Adarsh CHS for its residential project. This suggestion made on behalf of the Adarsh CHS was finally accepted by the GOM. In this connection reference may be made to the letter dt. July 2002 Exh. AS-46 addressed by Shri Sunil Tatkare, the then Minister of State for UDD to Shri Gidwani. The original letter is in Marathi and its English translation would read as under: “No. noting-2099/109...205/99/UDD-12 July 2002. Subject: Regarding reduction of the width of Capt. Prakash Pethe Marg at Colaba. Adarsh Co-op.Housing Society. Dear Shri Please refer to your letters dt. 7-8-2000, 27-8-2000, 14-10- 2000 and 13-2-2001 addressed to the Hon, Chief Minister on the subject noted above, The government has taken a decision to reduce the width of Capt. Prakash Pethe Marg so that a plot of land could be made available to the proposed Adarsh Co-op. Housing Society at Colaba. In this connection, the final notification dt, 10-4-2002 a\- \)175 has been issued, A copy of the said notification is attached with this letter for your information. Yours sincerely, sd/- (Sunil Tatkare), To Shri Kanhiayalal Gidwani, Hon, Member, Legislative Council, D-84, “Manora” MLA hostel, Nariman Point. Mumbai- 400021.” 43.1, The material question which therefore requires to be considered is whether and how far it was proper on the part of GOM to oblige the Adarsh CHS in this way. There is no dispute of the fact before the Commission that for making the said modification in the Development Plan, there was no other object, except to allot a plot of land to the Adarsh CHS. It is true that the land in question, as has been held by this Commission in its earlier report, no doubt belongs to the GOM and therefore it has power to dispose it of. Section 40 of the Maharashtra Land Revenue Code 1966 deals with the powers of GOM to dispose of its land or property and it reads as under: “40. Saving of powers of Government: - Nothing contained in any provision of this Code shall derogate from the right of the State Government to dispose of any land, the176 property of Government, on such terms and conditions as it deems fit.” Section 20(1) of the MLRC deals with title of State in all lands, public roads etc. which are not property of others and states inter alia as under:. "All public roads........... and all lands wherever situated, which are not the property of persons legally capable of holding property and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force and are hereby declared to he, with all rights in or over the same, or appurtenance thereto the property of the State Government and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as may be prescribed by the State Government in this behalf, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting". Section 328 of the MLRC enumerates the State Government's power to make Rules not inconsistent with the provisions of the Code for the purpose of carrying into effect the provisions of the Code. Section 328 (2)(iv) states about the State Government's power to make Rules regarding the manner of disposal of its property. Sub clause (2)(x) of the said section states that the State Government has power to make Rules for the grant of un- alienated land including provision for payment of price, option aN f \77 and condition to be annexed to such grant. Accordingly the GOM has framed Maharashtra Land Revenue (Disposal of Government Lands) Rules 1971 and the relevant Rule for our discussion is Rule No. 27 which reads as under: “27. Grant of land for 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 of 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 of 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) of Rule 26 does not exceed Rs. 2,50,000 and with the sanction of the Commissioner if the occupancy price so determined, exceeds Rs. 2,50,000 but does not exceed Rs. 6,25,000.” th178 43.2. Initially it was represented to the GOM that the proposed society was meant for the servicemen and ex- servicemen who have dedicated their lives for the mother land as also for the widows/heroes of Kargil war. However, later on the initial complexion of the society was completely changed and it became a co-operative housing society dominated by civilians and it was not restricted to only servicemen and ex-servicemen. The representation made by Shri R.C. Thakur, the Chairman of the society and Shri Kanhaiyalal Gidwani, the co-ordinator of the society was only a pretext or ploy to invoke sympathetic consideration from the government for getting allotment of a plot of land. Unfortunately the government did not realize this chicanery plan of the society or preferred to overlook the same for the reasons best known to it. It is true that the GOM is the absolute owner of the land in question, but it is not absolutely free to dispose of its land to any person on any terms which it likes. 43.3. In Bonbehari V. Nimbkar & ors. Vs. State of Maharashtra & ors reported in AIR 1996 BOMBAY 261 a Division Bench of the Bombay High Court observed in para 6 of its judgment as under: “We are in this petition dealing with State’s power to dispose of government land. It can be taken as settled law that the State is not and cannot be as free as an individual in a \ a i179 selecting the recipient for its largess. A democratic government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. The Division Bench referred to the Supreme Court decision in Ramana Dayaram Shetty Vs. The International Airport Authority of India & ors. reported in AIR 1979 SC 1628 wherein it was observed as under: “The power or discretion of the government in the matter of grant of largess including award of jobs, contract quotas, licenses etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case, the action of the government would be liable to be struck down, unless it can be shown by the government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory’. In the same judgment the Supreme Court further observed that the government must act in public interest and it cannot act arbitrarily or without reason and if it does so, its action would be liable to be invalidated. 43.4. Reference may also be made to another Division Bench decision of the Bombay High Court in the case of Bhupal Anna Vibhute Vs. Collector of Kolhapur & ors. reported in AIR180 1996 BOMBAY 314 wherein the facts were that a land admeasuring 1115.4 sq. mtrs. situated at Jaisingpur was sold by the government to respondent no.3 for starting a motor mechanical servicing centre. The Collector, Kolhapur who processed the application of respondent no.3 recommended his case for the grant of the said land to him. The government however disagreed with the proposal made by the Collector and directed that the land should be disposed of by auction after fixing the upset price with reference to the current market value to be determined by the Asstt. Director of Town Planning. However within a week the government changed its decision and passed another order superseding the earlier order and allotted the said land to respondent no.3, as a special case, for motor mechanical servicing centre without auction for Rs. 78,078 as occupancy price. The petitioner challenged the allotment of the land to respondent no.3, While upholding the said challenge, the Division Bench referred to its earlier decision in Writ Petition No. 1520 of 1988 wherein it was observed that the provisions of section 40 of the MLR Code empower the State Government to dispose of any land on such terms and conditions as it may deem fit. But the said discretion given to the State Government is not an absolute or unbridled discretion. The same has to be exercised in a just, fair and reasonable manner. The Division Bench also referred to the decision in M/s. Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir reported in AIR 1980 SC 1992,181 wherein it was observed that unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Whatever be its activity, the government is still the government and is subject to restraints inherent in its position in a democratic society. It was further observed that every activity of the government has a public element in it and it must, therefore, be informed with reason and guided by public interest. The Division Bench of the Bombay High Court quashed and set aside the order of allotment of land in favour of respondent no.3. 43.5. Shri Dipan Merchant, the Id. Sr. Counsel of the Commission further relied upon a recent decision of a Division Bench of the Bombay High Court in the case of Mohamadiya Welfare Society Vs. State of Maharashtra & ors. reported in 2012 (5) Mh.L.J. 644 wherein the facts were that a plot of land situated within the city limits of Achalpur, belonging to the government was sought for by the appellant and respondent no.3. But the Sub Divisional Officer rejected the request of both. Therefore the matter was carried in appeal but the Addl. Commissioner dismissed the appeal. Hence respondent no.3 filed a revision application to the State Government. The same was heard and decided by the Minister of State for Revenue who set aside the impugned order and allotted the land to respondent no.3 with a direction to take necessary steps in terms of Rule 28 of the MLR (Disposal of Government land) Rules 1971. The appellant challenged the182 order of allotment in favour of respondent no.3 by filing a writ petition. The Division Bench observed that it is incumbent upon the Collector to follow the mandate of the Rules and the law laid down by the Supreme Court to the effect that public lands are not to be allotted unless and until the allotment precedes by inviting bids and offers from public and that mode has been followed and adhered to. All such powers and particularly of the nature conferred by the 1971 Rules are in the nature of trust. There is no absolute discretion and uncontrolled and unguided power of allotment of government or public lands, and no such authority vested in the Minister. The court therefore, set aside the order of allotment in favour of respondent no. 43.6. The next decision on the point is the decision in ITC Ltd. Vs. State of U.P. & ors. reported in AIR 2012 Supreme Court 1820 wherein it was observed that before a completed transfer is interfered on the ground of violation of Regulations, it will be necessary to consider two questions. The first question is whether the transferee had any role to play (fraud, misrepresentation, undue influence etc.) in such violation of the Regulations, in which event cancellation of transfer is inevitable, But if the transferee had acted bonafide and was blameless, it may be possible to save the transfer but that again would depend upon the answer to the further question as to whether public interest has suffered or will suffer as a consequence of the violation of the Regulations. The Supreme 4_\183 Court further observed that if the public interest has neither suffered nor is likely to suffer on account of the violations then the transfer may be allowed to stand. On the other hand, if the violation of Regulations leaves or likely to leave an everlasting adverse effect or impact on public interest (as for example when it results in environmental degradation or results in a loss which is not reimbursable) public interest should prevail and the transfer should be rescinded or cancelled. 43,7, The common thread which runs through all the above mentioned decisions is, in short, that although it is the discretion of the government to dispose of its property in the way it likes to do, yet such discretion cannot be used arbitrarily. The government is bound to take care of the public interest which is likely to be served or affected on account of such disposal of its property. A question may be asked as to what is the relevance of public interest with the modification in question in respect of Capt. Prakash Pethe Marg. As already observed the only object of the said modification was to provide a plot of land to the Adarsh CHS which is a private co- operative housing society. No public interest was going to be promoted nor any public purpose was going to be achieved by making the said modification in the final Development Plan. The government could have allotted a suitable plot situated elsewhere in the city of Mumbai to the Adarsh CHS. But the insistence of the society was on getting the land in question184 only for its housing project. Therefore to serve that purpose of the society, the land in question was specially carved out from the proposed expansion of the Capt. Prakash Pethe Marg. Shri Pradeep Yadav (I.W.No.4) the Sr. Planner of the MMRDA has stated in para 13 of his evidence that as per the notification the entire width of Capt. Prakash Pethe marg was not be reduced from 60.97 mtrs. to 18.92 ntrs but only the width of the road between Cuffe Parade police station and the south west boundary of Backbay area was to be reduced. It will thus be seen that the modification of the Development Plan is directly connected with the allotment of land in question to the society. It is from this point of view that public interest becomes relevant for considering the propriety and legality of the said modification of the Development Plan. Nothing has been pointed out on behalf of the GOM, how the said modification of the Development Plan served the public interest. On the contrary it has gone exactly against its own approved Development Plan. In fact, the Development Plan envisages the widening of the road in phases so as to sub serve the interest of the public in decongesting the Cuffe Parade area. 43.8. In this connection reference may also be made to para 1.3 in the report of the draft Development Plan for BBRS Exh. GOM-306 which states about freezing of reclamation. Sub para 1.3.1 reads, “Thereafter, in response to public criticism, the State Government took a policy decision on 1% December 1978 to dW \ nw \ \185 freeze the reclamation in Backbay areas at the then existing level except for certain small areas which may be necessary for fisherman and BEST. It was also decided that all the un- llotted plots should be i joses:” Sub para 1.3.2 in substance states that, subsequently it was realized that abrupt freezing of reclamation resulted in certain anomalies and in order to remove the anomalies the Executive Committee of BMRDA recommended a scheme to government which involved inevitable reclamation of 17.26 hectors (42.68 acres) in August 1981 mainly for public and semi public purposes. In short, the reclaimed area was proposed to be used only for public and semi public purposes. It must be noted that the land in question is a reclaimed land. 43,9. Shri Anil Sakhare, the Id. Senior Counsel submitted on behalf of the GOM that since the proposed Colaba-Uran Sea link project was given up, the need to expand the width of Capt. Prakash Pethe Marg from 18.40 mtrs. to 60.97 mtrs. did not survive and therefore the width of the said road was decided to be retained to its original width. In fact the original notification of th Colaba Uran link road mentioned by letters ABCD has not yet been finally deleted from the DP, even though a notification under sec. 37 was issued in this regard. It will thus be seen that although on paper there was no actual reduction in the width of Capt. Prakash Pethe Marg, still on account of the modification of the Development Plan the GOM.186 was able to carve out a plot of the width of about 42.57 mtrs. east-west from the proposed expansion of the width and allot the same to the Adarsh CHS. It is thus clear that all this exercise of modifying the Development Plan was motivated to favour the Adarsh CHS for materializing its housing project on the land in question. [t must therefore be said that the GOM in effect served the purpose of a private housing society without taking into consideration the question of public interest involved in the said modification. 43.10. Shri Merchant, the Id. Sr. Counsel of the Commission pointed out that although it was submitted on behalf of the GOM that the proposed Colaba-Uran Sea link project was given up; no modification was made in the final Development Plan by following due procedure laid down in Section 37 of the MRTP Act. It may be true that the execution of the said project may have become difficult on account of certain buildings coming up in its way. But unless and until the final Development Plan is suitably modified to delete the said project, it remains on the Development Plan as a proposed project. Supposing that in future the government decides to pursue and complete that project, it will not be in a position to expand the width of Capt. Prakash Pethe Marg which was supposed to be a feeder road to the said Colaba-Uran Sea link.187 43.11. Reference may be made to certain documents relating to Bandra Worli Sea Link Project. The letter dt. 18-4-2001 Exh. GOM-302 addressed by Shri Ajit Nimbalkar, Vice Chairman and Managing Director of Maharashtra State Road Development Corporation Limited (MSRDC) to Shri A.P. Sinha, Principal Secretary, UDD states that the MoEFF has already given environmental clearance for the said project which is a part of the Western Freeway connecting Bandra to Nariman Point. The letter further refers to an alignment “Which is predominantly running parallel to shore line at about 100 to 150 mtrs. towards sea and is connected to Nariman Point. The Committee further recommended an extension to Cuffe Parade for proper disbursal of traffic in Nariman Point area. The Government of Maharashtra approved the alignment as recommended by the Committee. It was requested by this letter to initiate urgent action for suitable amendment to the Development Plan to incorporate the proposed alignment in view of the importance of project in alleviating traffic congestion and improving the environment and air quality. It may be clarified here that the “Alignment” referred to in this letter is nothing else but Colaba-Uran Sea Link. 43.12, There is another letter dt. 14-5-2001 Exh. GOM-304 addressed by Shri Ajit Warty, Metropolitan Commissioner to Shri A.P. Sinha, Principal Secretary, UDD on the same subject. This letter makes a reference to Shri Nimbalkar’s letter dt. 18-188 4-2001 and further states that the government has directed MMRDA to reduce the width of Capt. Prakash Pethe Marg from 60.97 mtrs. to 18.92 mtrs. and the MCGM to delete road marked by letters ABCD in the enclosed map. Shri Warty (LW.No.6) further writes, “You would notice that the very section A,B which you have directed MCGM to delete, the MSRDC wants to be restored. If this section A, B is built it would also have some implications on the net work connecting such a link. 1 would therefore like to request you to reconsider your earlier directives in the light of MSRDC’s proposals and issue us an appropriate directive in terms of modification to be carried out to the sanctioned planning proposals.” Shri RK. Jha, Executive Director, MSRDC by his letter dt. 27-12-2001 Exh. GOM-305 wrote to the Dy. Director of Town Planning stating, “The government had earlier approved that considering future needs of this region, there would be need to have a southern mainland Trans Harbour Link between Colaba and Uran, say by the year 2020. As such for this purpose reservation "D-E” needs to be retained.” 43.13. The above referred correspondence shows that the MSRDC felt the necessity of having Colaba -Uran Link from the view point of traffic disbursal. In his evidence before the Commission Shri Ajit Nimbalkar (GOM W.No. 8) stated that the government issued notice on 29-10-2001 deleting the road line marked “ABCDE”. (vide Appendix-X). This, according to him , would affect the further disbursal of traffic in the area189 and the linkage to proposed Colaba-Uran Sea Link. Therefore the MSRDC raised an objection by its letter Exh. GOM-305. The GOM however appears to have not paid serious attention to the said objection and decided not to proceed with the Colaba- Uran Sea Link Project. This in effect afforded a ground to the GOM for reducing the proposed width of Capt. Prakash Pethe Marg, from 60.97 mtrs. to 18,40 mtrs. It must be said to the discredit of the GOM that it ignored the well thought advice given by its own body from the view point of traffic. Apart from the fact whether the Colaba-Uran Sea Link Project materialized or not, there was no real and_ sufficient justification for giving up the proposal for expanding the width of Capt. Prakash Pethe Marg, 43.14, As per the plans on record the existing width of Capt. Prakash Pethe Marg is stated to be 18.40 mtrs. But when the Commission took site inspection on 13-4-2011 and measured and width of the said road, it was found to be 10.80 mtrs., from the southern compound wall of the society's building up to the wall of military petroleum depot on the east. The width of the road at the northern end of the building was found still lesser ie. 9.70 mtrs. including the footpath of 1.35 mtr. width. The Commission found that the Capt. Prakash Pethe Marg is comparatively much narrower in front of the Adarsh building and some northern portion up to the police station than the southern portion of the same road. This in effect is causing a190 bottle neck for the traffic resulting in congestion. It is not known why the width of the road was not found 18.40 mtrs. in front of the Adarsh building. Where has the additional 8 mtrs. portion gone? Shri Ramanand Tiwari (AS.W.No.3) the then Prin. Secretary of the UDD has stated in para 15 of his evidence that in the existing land use Plan Exh. MMRDA-12 the width of Capt. Prakash Pethe Marg is shown as 27.40 mtrs. However at the time of issuance of the notification dt. 10-4- 2002 he did not ask any officer of the UDD to check the actual width of the road nor did he think it necessary to check the actual width of the road before issuance of the notification. It may be pointed out that in the notification dt. 10-4-2002 Exh. GOM-36 there is a discrepancy in mentioning the exact width of the said road. On the second page of the notification there is a reference to reducing the width of the road to 18.40 mtrs. whereas in the order dt. 28-2-2001 directing the MMRDA to initiate proceeding under sec. 37 of the MRTP Act Exh, GOM- 313 the width of the said road is mentioned as 18.92 mtrs. Shri Tiwari has admitted this discrepancy in para 20 of his evidence. 43.15. There are two possibilities; one is that the actual width of the road was never 18.40 mtrs. and it was less than that. But in order to give the benefit of Regulation 31 of the DCR 1991 for the purpose of height of building, the width of the road is shown to be 18.40 mtrs. Under the said Regulation height of the building is co-related to the width of the road. aL \ \191 The height of a building cannot exceed one and half times the total width of the road on which it abuts. However this restriction of height ceases to apply where the road in front of the plot has width of more than 18 mtrs. The other possibility is that the additional portion of 8 mtrs. has been unauthorisedly included in the open area in front of the Adarsh building. 43.16. There is one more reason which would justify the widening of Capt. Prakash Pethe Marg. This road connects the military area on the south. Tomorrow if any exigency arises on account of war or military operations, Capt. Prakash Pethe Marg would not be able to meet the requisite need of the army for transport of its vehicles. The narrow width of Capt. Prakash Pethe Marg in front of the Adarsh building would thus hamper and affect free and easy access to army vehicles and thereby cause a danger to the general security. This important aspect was totally ignored by the GOM when it approved the modification of reducing the proposed width of Capt. Prakash Pethe Marg. In this connection reference may be made to the evidence of Shri Pradeep Yadav (IW. No.4) who is the Sr. Planner, Town & Country Planning Division of MMRDA. In para 9 of his deposition Shri Yadav has stated, “It is apparent on the record that even in the year 1987 the BMRDA thought it necessary to widen Capt. Prakash Pethe Marg to the extent of 200 ft. (60 mtrs.) for avoiding traffic flow. It is correct that therefore the BMRDA was of the opinion in the year 1987 that it192 was not desirable to delete public reservation for D.P. road widening in favour of a private co-operative housing society...” 43.17. It was submitted by Shri Merchant that the reduction in the width of Capt. Prakash Pethe Marg has adversely affected public amenity. Under sec. 2(2) of the MRTP Act “amenity” means roads, streets, open spaces, parks, recreational grounds etc. and includes other utilities, services and conveniences. The amenity of road has however to be construed in the context of its existing condition or position. If the existing width of any road is reduced then it would certainly affect amenity which is available to the public. However, the prospective amenity which would be available on account of prospective widening of the road, it cannot be said to have been affected if the plan to widen the road is given up. Because it is not an amenity actually in the enjoyment of the public, 43.18. The net result of the foregoing discussion is that the reduction of the proposed width of Capt. Prakash Pethe Marg was not at all in public interest and it was meant to sub-serve the interest of a private co-operative housing society. The considerations of traffic congestion and security operations of army during exigent time were totally ignored. Moreover the modification in the final Development Plan in this respect was not made in accordance with the provisions of section 37(1) of the MRTP Act since no notice was given to the MOD which is an193 affected party, by the said modification pertaining to reduction in the width of the road. WHETHER THERE WAS A CHANGE OF RESERVATION. 44. The second part of issue No.3 is concerned with the change of reservation of the related portion of Capt. Prakash Pethe Marg and its inclusion in residential zone. This modification is consequential to the reduction of the proposed width of the said road and its validity or otherwise has to be considered with reference to the relevant provisions of the MRTP Act and also the CRZ notification dt. 19-2-1991 issued by the MoEF in exercise of its power under sec.1 and 3(2)(v) of the Environment (Protection) Act, 1986, since the land in question admittedly falls in CRZ-II category. 44.1. As already stated, the land in question is situated on the western side of Capt. Prakash Pethe Marg and it is abutting that road on the seaward side. There is no dispute of the fact that in the final Development Plan the land in question was covered by the proposed expansion of the width of Capt. Prakash Pethe Marg from 18.40 mtrs. to 60.97 mtrs. But since it was decided to carve out a plot admeasuring 3758.82 sq. mtrs. for allotment to Adarsh CHS, its reservation from road to residential was required to be changed by modifying the final Development Plan. The GOM therefore initiated a proceeding under section 37(1A) of the MRTP Act for effecting the an |194 modification of change of reservation in the final Development Plan and finally as per the notification dt. 10-4-2002 Exh. GOM-378 effected the modification stating inter alia that "the section of road marked as B-J is reduced from 60.97 mtrs. to that of 18.40 mtrs. and area so deleted is included partly in residential zone (marked as ABCD)....n. as shown on plan in blue colour.” 44.2. While dealing with the question regarding reduction of the width of the said road, we have already made cert comments and referred to several decisions to support of our conclusion that the said modification ignores public interest and_ it was done only to favour a private housing society namely Adarsh CHS. We do not wish to repeat the same discussion here again and hold that for the same reason the modification in the final Development Plan, in so far as it relates to change of reservation from road to residential, is bad and not legal with reference to the provisions of the MRTP Act. 44.3. Since the land in question falls in CRZ-II category, it will have to be seen whether for changing the said reservation from road to residential, previous CRZ clearance was required or not under the notification dt. 19-2-1991 issued by the MoEF in exercise of its powers under sec. 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986, This notification enumerates 13 activities which are declared as prohibitory within CRZ and one of such prohibited activities is mentioned aN \v195 in clause (xi) which reads, “Construction activities in ecologically sensitive areas as specified in Annexure-I of this notification.” However there is nothing on record to show that the land in question has been declared as ecologically sensitive area. Para 3 of the said notification deals with regulation of permissible activities. It states that all other activities, except those prohibited in para 2 above will be regulated in the manner laid down in clauses 1, 2 and 3 of the said paragraph. Clause 2 of para 3 refers to various construction activities, operational construction of ports and harbours etc. thermal power plants for transport of raw materials, demolition or reconstruction of buildings of archaeological or historical importance heritage building, buildings under public use and also all other activities with investment exceeding Rs. 5 crores. It is necessary to point out that under clause 1 of para 3 of the said notification, it is stated that clearance shall be given for any activity within CRZ only if it requires water front and foreshore facilities. 44.4, The said notification includes Annexure-|_ which contains Coastal Area Classification and Development Regulations. Para 6(1) states that for regulating development activities, the coastal stretches within 500 mtrs. of High Tide Line of the landwards side are classified into four categories namely CRZ-I, CRZ-II, CRZ-IIl and CRZ-IV. We are concerned with CRZ-Il category since the land in question falls in that category. Para 6(2) lays down the norms for regulation of \ a196 activities and it reads, “The development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities in the State/Union Territory level, in accordance with the following norm’. So far as CRZ-IL category is concerned the relevant norms are as under: (i) Buildings shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorized structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorized structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR. Provided further that the above restrictions on construction based on existing roads/authorized structures, roads proposed in the approved Coastal Zone Management Plans, new roads shall not apply to the housing schemes of State Urban Development Authorities implemented in phases for which construction activity was commenced prior to 19% February, 1991 in atleast one phase and all relevant approvals from State/Local Authorities were obtained prior to 19 February, 1991, in all such cases specific197 approval of the Ministry of Environment and Forests would be necessary on a case to case basis. (i) Reconstruction of the authorized buildings to be permitted subject with the existing FSI/FAR norms and without change in the existing use. (iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style.” ‘Emphasis provided) It is important to note that the above mentioned three clauses of para 6(2) do not refer to any norms of development but they refer only to the norms of construction activities. The CRZ notifi 9-1998 Exh. MMRDA-71 issued by the Joint Secretary of the ion dt, 19-2-2001 was clarified by a letter dt. 18- MoEF. But this letter furnishes clarifications with reference to new building/reconstruction/expansion of _ existing authorized buildings etc. But it does not talk of or explain anything about development activity in the CRZ area. Building a house is obviously a construction activity so also constructing a road is a construction activity which would require CRZ clearance if it is carried in any of the CRZ areas. 44.5. Shri Merchant relied upon the decision in the case of Sneha Mandal Co-operative Housing Society Limited & ors.198, Vs. The Union of India & ors. reported in 2000(1) Bom.C.R. 395 in which a plot in CRZ area which was earmarked for garden was sought to be changed to that for housing. The High Court however held that as the plot in question was ear marked for garden when CRZ notification came into effect and no change in that had been allowed, in the circumstances no change of use could be made without permission of Maharashtra Coastal Zone Management Authority (MCZMA). Therefore according to Shri Merchant the change of reservation from road to residential cannot be regarded as being in accordance with law. Shri Merchant further relied upon the decision in Suresh Estates Pvt. Ltd. &ors. Vs. Municipal Corporation of Gr. Mumbai & ors. reported in (2007) 14 SCC 439, wherein it was held that when the CRZ notification dt. 19-2-1991 refers to “existing rules” , the same shall mean existing as on the date of notification and not on the date of grant of permission. It was further observed that on the date of notification ie. 19-2-1991 Development Control Rules (DCR) 1967 were in force. Hence building activities would be governed by the 1967 DCR and not by draft DCR 1989 or DCR 1991 44.6. Shri Manish Desai, !d. Counsel for the Adarsh society drew our attention to the sanctioned Development Plan Exh. GOM-27. It is the final Development Plan of A ward prepared by the MCGM in 1967. Pointing out our attention to the letter “R” on the said plan, Shri Desai submitted that the land in a! \199 question was in residential zone even in 1967 and therefore there is really no change of its zone, It may however be observed that Shri Desai has conveniently ignored the fact that the letter “R” which indicates residential zone is on the eastern side of Capt. Prakash Pethe Marg, whereas the land in question which is on the western side of the said road was not in existence at that time as the said plan shows that it was all sea. It means that it was not in any zone, much less a residential zone. However after its reclamation and thereafter by the modification in the final Development Plan the same has been included in the residential zone for the first time. Since its inclusion in residential zone, there would be obviously a change of user ie, from “No use” to “Residential use”. Therefore, it has to be treated as change of reservation which could not have been done without CRZ clearance. At that time the MCZMA duly constituted was in existence and its approval was required to be taken. At no stage, did the UDD consider it necessary to consult the department of Environment, even though so enjoined by R&FD resolutions. 44.7. With this, we conclude the discussion on issue no.3 and record that the reduction of the proposed width and change of reservation from road to residential in respect of Capt. Prakash Pethe Marg was not in accordance with the provisions of the MRTP Act and it was illegal and malafide. Accordingly we record our finding on issue no.3.issue No.4: Whether the deletion of the reservation of plot reserved for BEST and its conversion to residential purpose for allotment to the Society was in accordance with law? ADDITIONAL FACTS 45. The factual background of this issue is stated in para Nos. 34 to 34.3, 35 and 35.1 above. A few more and relevant facts may be added here. ‘The BEST is an undertaking which is responsible for providing public transport and electricity to the citizens of Mumbai. The evidence of Shri Swadheen Kshatriya (GOM W.No.15) who was the General Manager of BEST shows that the BEST was given plot No. 87-C ( CS No. 652) admeasuring 21,139 sq. mtrs. under a Lease Deed of 1973 for a period of 99 years on yearly rent (Exh. IW-22) by the GOM and on that plot the BEST commissioned its depot in 1976. It is necessary to point out that the plot allotted to the BEST is just behind the Jand in question on the seaward side. The BEST depot has access to it from Capt. Prakash Pethe Marg through an open space of the width of 44.40 mtrs. which adjoins the land in question on the northern side. The BEST buses make use of this open space for ingress and egress though the lease deed is totally silent on this point. Along with201 the lease deed a plain map Exh. IW-23 is annexed and it shows the location of BEST plot. 45.1. Admittedly the GOM issued a notification dt. 3-3-2006 Exh. AS-110 under sec. 50 of the MRIP Act and deleted the reservation of BEST depot and included the same in residential zone subject to certain conditions. This notification makes a reference to the reduction of the width of Capt. Prakash Pethe Marg, and that the deleted land has been included in the reservation of adjoining land ie. BEST depot as per the notification dt. 10-4-2002. It also mentions that as per the Development Plan of BBR, BEST is the appropriate authority for development of said reservation. The notification then refers to the request made by the Adarsh CHS for permission to use the FSI of the BEST plot on the adjoining land i. land in question which was granted to it. It is further stated in the said notification that the appropriate authority ie, BEST has informed the government that they have no objection to take decision regarding the said reservation with a condition that the approach road of the width of 44.40 mtrs. shall be kept open permanently for BEST buses. The notification further refers to the GR dt. 5-8-2005 whereby FSI of the BEST plot was granted on the adjoining plot of Adarsh CHS with a condition that the FSI shall be permitted after effecting the necessary modification of deletion of the reservation of BEST depot and its inclusion in residential zone. It further records that the said \ LL202 land is not required by the BEST except for approach road of the width of 44.40 mtrs. The notification then proceeds to state as under: “Now therefore, Govt, find its necessary to delete the said land from the said reservation in view of the powers vested under section 50(2) of the said Act, Govt. hereby:- A) Sanctions the proposal of deletion thereby deleting the said land from the said reservation of BEST depot and include the same in the residential zone subject to following condition:- The said land shall always be kept open and used as an approach road to BEST depot without any construction in future, B) _ Fixes the date of publication of this Notification in. the official gazette (Ordinary) as the date of coming into force of this modification. ©) Directs the said Corporation that in the schedule of modification sanctioning the said plan, after the last entry, the above referred (A) shall be added.” A part plan of sanctioned Development Plan of BBR area is annexed with the said notification at Exh.AS-110 (A). However the copy of the said map not being very much clear, we refer to the copy of the plan at Exh. GOM -312-A, which gives a clear203 idea of the deleted portion of land from BEST depot. A copy of this plan is therefore annexed to this report at Appendix- IX. 45.2 After getting the full background facts before us, it would be proper to turn to the relevant provisions of law under which the said notification has been issued. Section 50 of the MRTP Act is necessary and it reads as under:- 50. Deletion of reservation of designated land for interim draft of final Development Plan. (1) The Appropriate Authority (other than the Planning Authority), if it is satisfied that the land is not or no longer required for the public purpose for which it is designated or reserved or allocated in the interim or the draft, Development Plan or plan for the area of Comprehensive development or the final Development Plan, may request ~ (a) the Planning Authority to sanction the deletion of such designation or reservation or allocation from the interim or the draft Development Plan or plan for the area of Comprehensive Development, or (b) The State Government to sanction the deletion of such designation or reservation or allocation from the final Development Plan.204 (2) On receipt of such request from the Appropriate Authority, the Planning Authority, or as the case may be, the State Government may make an order sanctioning the deletion of such designation or reservation or allocation from the relevant plan: Provided that, the Planning Authority, or as the case may be, the State Government may, before making any order, make such enquiry as it may consider necessary and satisfy itself that such reservation or designation or allocation is no longer necessary in the public interest. (3) Upon an order under sub-section (2) being made, the land shall be deemed to be released from such designation, reservation, or , as the case may be, allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land, under the relevant plan.” ‘The term “Appropriate Authority” used in section 50 is defined in section 2(3) of the Act and it reads as under:- “Appropriate Authority” means any public authority on whose behalf land is designated for a public purpose in any plan or scheme and which it is authorized to acquire.”AT 205 45.3. A careful perusal of sub section (1) of section 50 makes it clear that there are three ingredients as follows: - (1) That it is the satisfaction of the Appropriate Authority (2) That such satisfaction must be to the effect that the land is not or no longer required for public purpose for which it is reserved or allocated in the Development Plan and (3) The request for deletion of reservation must proceed from the Appropriate Authority. In the instant case, there is no doubt or dispute that the BEST is the Appropriate Authority for the purpose of section 50. This fact is acknowledged even in the notification dt. 3-3-2006 Exh.AS-110. It is therefore obvious that the satisfaction contemplated by section 50 must be the satisfaction of the BEST which is the Appropriate Authority in this case and that the request for deletion of the reservation of the land must be of the BEST and nobody else. In the light of the above mentioned position of law, we shall now turn to the evidence on record, 45.4. The evidence on record shows that Shri Sunil Tatkare, Minister of State for UDD took keen interest and initiative in the matter for calling a meeting of the concerned officers to consider the issue of grant of additional FSI to the Adarsh CHS. Exh. AS-64 is a letter dt. 13-7-2004 addressed by his Personal Secretary requesting the Secretary R&FD, Secretary UDD, Managing Director BEST, Officer of the MMRDA and the Collector Mumbai to attend a meeting scheduled on 14-7-2004 in the chamber of the Hon. Minister of State. Accordingly the206 said meeting was held as scheduled. The minutes of the said meeting are at Exh.AS-67 colly. and they show that Shri Gidwani who was present in the meeting made a statement that as per the government's direction 71 members were required to be accommodated in the society but the present FSI was found to be insufficient and therefore additional FSI of adjoining land was required by the society. Shri Ramanand ‘Tiwari, the Principal Secretary, UDD who was present in the meeting however expressed his view that it was not feasible to allot FSI of the land reserved for BEST depot to the society although it was willing to pay land cost to the State Government. The Minutes of the meeting further record, “In order to sort out the issue, he stated that the society shall have to approach the State Govt. for allotment of the subjected land by deleting the reservation of BEST bus depot by following due process of law under sec. 37 of MRTP Act which includes inviting objections from the person/persons, public bodies etc. affected by the said proposed modification. This procedural period will be at least six months, The Hon. Minister and other officials agreed for the same and meeting concluded at 7.15 p.m.” 45,5. It appears that the UDD thereafter asked the BEST to give its specific comments in this respect. Accordingly Shri Umesh Tayshetye, Asstt. General Manager (Civil) of BEST prepared the note Exh. GOM-367 dt. 7-12-2004. In that note he referred to the meeting held on 14-7-2004 in the chamber of Minister of State, UDD and mentioned what had transpired me207 in the said meeting. Shri Tayshetye has written in his note as under: 4. “Now the Under Secretary, Urban Development Dept. Mantralaya has asked for the specific comments of the Undertaking on above said proposal. We have examined the proposal and it is felt that we may differ with the Prin. Secretary, Urban Development Department's above views expressed by him in the meeting on 14-07-2004 ie. deleting the reservation of Bus Depot and then allot the land to the society, 5. In view of the above, it is felt that the subjected plot/land should be out of the purview of any reservation and allotment and shall be retained as an exclusive access to the BEST Bus Depot.” Clarifying his observations in the said note, Shri Tayshetye (GOM W.No.22) has stated in para 5 of his deposition that the intention of BEST, to differ with the suggestion of Prin, Secretary was regarding deletion of reservation of BEST Depot by following due process of law under sec. 37 of the MRTP Act. He added that the point of difference was with regard to deleting the reservation of BEST Depot and then allotting the land to the society. Shri Swadheen Kshatriya (GOM W.No.15) who was at the relevant time the General Manager of the BEST has stated that he did not attend the meeting held on 14-7- 2004 but according to him, “The BEST was of the view that we a \ i208 did not agree for the change of reservation, This view can be seen consistently in all the three meetings of which the record is available.” Explaining further the grounds on which the BEST differed with the advice given by the Prin. Secretary, UDD, Shri Kshatriya has stated , “The ground on which BEST differed was that we are using the land as an access since 1976. It was the only access and there was no alternative access and because BEST required the access in future also. Without this land we cannot enter our BEST bus depot.” 45.6. The second meeting on the same issue was held on 15- 12-2004 at Nagpur by Shri Rajesh Tope, the then Minister of State for transport. ‘This meeting was not attended by Shri Kshatriya but it was attended by Shri Tayshetye who has stated in para 6 of his deposition that in that meeting Shri Kanhaiyalal Gidwani and Shri R.C. Thakur were also present. According to Shri Tayshetye in that meeting he pointed out to the Hon. Minister that as far as BEST was concerned, it would not grant NOC for de-reservation of land as suggested by Shri Ramanand Tiwari. According to him, this explanation was given by him of his own and was later on confirmed by his superior officers. Shri Tayshetye prepared a note dt. 29-12- 2004 Exh. GOM-368 giving the details of the meeting at Nagpur. At the end of this note Shri Tayshetye writes, “After giving patient hearing, the Hon. Minister stated that he would discuss the issue with the Prin. Secretary Shri Ramamand Tiwari (\ Wh208 in detail and further decision in the matter will be taken thereafter” 45.7. | There was yet another meeting held on this issue in the chamber of Shri Rajesh Tope, who was at that time Minister of State, UDD. This meeting was attended by Shri Kanhaiyalal Gidwani, Shri Ramanand Tiwari, Shri Tayshetye and others. In this respect a note dt. 11-1-2005 Exh. GOM-369 was prepared and placed by Shri Tayshetye before the General Manager Shri Kshatriya. This note mentions that Shri Ramanand Tiwari pointed out in the meeting that the land belonged to the State Government and that it was not allotted to BEST. The BEST would be required to bear the land cost at the present market rate if it was allotted to them. It is further stated that the Hon. Minister directed the BEST to send its comments. At the end of this note, Shri Tayshetye has made the following remarks: “The subjected plot of land proposed to be included in the Depot, is under the use of BEST Undertaking as an access to the Backbay Bus Depot since 1976. The said land is not in the possession of the BEST Undertaking. As regards the issue of allotting FSI of said plot to Adarsh society, it is felt that we may convey to the State Govt. that it may decide on the request made by the Adarsh society to allow them to utilize FSI of the subjected plot. However while doing so the Undertaking’s interest shall be fully protected a \210 by maintaining present status of the access to the Bus Depot in perpetuity without any encroachment on the said land. If approved, the Under Secretary (UD) of Govt. of Maharashtra would be informed as per the draft letter, in Marathi, addressed to the Under secretary (UD) Govt. of Maharashtra placed at page 177/C.” This note was approved by Shri Kshatriya on 12-1-2005 with a remark “We may send our comments accordingly to GOM". 45.8. On the same day i.e. on 12-1-2005 Shri Tayshetye addressed a letter Exh. [W-15 to the Additional Secretary, UDD on the subject about grant of additional FSI of BEST plot to the Adarsh CHS. The letter is in Marathi and its English translation would be as under : Hon, Addl. Secretary 12% Jan.2005 Govt. of Maharashtra, Urban Development Dept. Mantralaya, Mumbai 400 032. Subject : Regarding request of the society For grant and use of FSI in respect of the land in the use of Bus Depot on the land BB Block- VL CS 87-C allotted to the society.21 Sir, Reference to your letter dt. 30-10-2004,U.0. R. -203/2004/ UD-11. Backbay Bus Depot of the (BEST) Undertaking is functioning since the year 1976. The subject plot is also being used as an approach road by way of easementary right for ingress and egress to the above mentioned depot and the same will be required even in future as an approach road for reaching Backbay Bus Dept. Taking into consideration this fact and retaining the approach road in its present condition with the width of 44.40 mtrs. and also keeping the interest of the Undertaking unaffected, the government may take appropriate decision under the prevalent Rules on the request made by Adarsh Co-op. Housing society. Yours, ‘Sd/- (UD. Tayshetye) Asstt. Gen. Manager(Civil)’. In his evidence before the Commission, Shri Tayshetye stated that there was no change in the stand taken by the BEST and it wanted to retain the plot reserved for BEST and that interest to be protected. In the cross examination by Shri Saket Mone, the Id. Advocate for the Adarsh CHS, Shri Tayshetye stated that the interest of the BEST was limited only to the extent of plot being kept reserved for approach road to the BEST.212 45.9. In this connection it may be pointed out that the Adarsh CHS has filed Writ Petition No.2407 of 2010 against the State of Maharashtra and 9 others challenging the revocation of Occupancy Certificate granted to it and on other grounds. In that writ petition, on behalf of the BEST Shri Shridhar A. Kaikani, Civil Engineer, (Civil) of BEST (Respondent no.6) has filed his affidavit dt. 28-6-2011 which is marked as Exh. GOM- 370. Therein he has affirmed that the said plot admeasuring 2669.68 sq. mtrs. fronting the ingress and egress to the bus depot plot on and from 11-10-1976 has been consistently used by BEST for access to the bus depot and consequently the BEST has been exercising easementary right of way over the said area. This fact is affirmed in para 6 and 9 of his affidavit. In para 22 of the said affidavit Shri Kaikani has affirmed as under: 22. “I say that as the said land admeasuring about 2669.68 sq. mtrs was to be always kept open and to be used as an approach road to BEST Depot without there being any expenditure on part of BEST for acquisition of the said land admeasuring about 2669.68 sq. mtrs, the BEST bonafide believed that the interest of BEST had been safeguarded by the Government of Maharashtra ". Shri Mone drew the attention of Shri Kshatriya to this affirmations made by Shri Kaikani in his affidavit filed on behalf of BEST before the High Court. But Shri Kshatriya AL \213, avoided to express his opinion by saying “! would not like to comment on that’. 45.10, The foregoing discussion thus makes it clear that so far as the interest of BEST qua the plot admeasuring 2669.68 sq. mtrs. is concerned, remained unaffected despite its deletion from reservation as “BEST Depot” and inclusion thereof in residential zone. The BEST does not have any proprietary right in the said land since it was neither allotted nor leased to it for its use and occupation. But it has been making use of the said plot as an approach road for its buses to the Depot by way of easementary right since 1976. This right is kept intact and not affected in any way by the notification dt. 3-3-2006 whereby modification in the Development Plan was made. It is not the case of BEST that it had sought allotment of this plot and that the GOM refused to give the same to it. Shri Mone, the Id. Advocate for the Adarsh CHS pointed out that the BEST could not have used the FSI of the said plot on the building of its Depot since it is on the seaward side and falls in CRZ-II category. There seems to be much substance in the submission of Shri Mone. In short, the position in respect of he said plot has not changed in any way and it continues to be the same as it was before the modification in question was made. 45.11. Despite this position, it must be noted that the said modification is not strictly in accordance with the provisions of section 50 of the MRTP Act which are reproduced above. A214 The request for deletion of reservation of the designated land must proceed from the Appropriate Authority which in the instant case is the BEST Undertaking. If we take into consideration the events preceding the said modification as discussed above, it will be seen that there was no request by the BEST for deletion of reservation. It never suggested or wrote to the Planning Authority or the State Government that it did not require the said plot for public purpose. In fact, the move for additional FSI of that plot was initiated by the Adarsh CHS and the same was upheld and pursued by the GOM. At any rate the letter dt. 12-1-2005 Exh. IW-15 addressed by Shri Tayshetye to the GOM cannot be regarded as a “request” within the meaning of section 50 (1) of the MRTP Act. It is pertinent to note that Shri Ramanand Tiwari, the Prin. Secretary, UDD who earlier suggested a recourse to section 37(1) of the MRTP Act for effecting the modification in this respect on 14-7-2004 put up a note dt. 16-1-2006 Exh. GOM-325 for taking recourse to section 50 of the MRTP Act for effecting the modification. It is surprising to note that in the said noting the letter Exh. [W-15 dt. 12-1-2005 of Shri ‘Tayshetye has been mis-interpreted as a request by the BEST within the meaning of section 50 of the Act. Shri Anil Sakhare the Id. Sr. Counsel for the GOM fairly conceded that, recourse to section 50 of the Act was not proper and correct and that the proper course was to follow the provisions of section 37(1) of the MRTP Act for effecting the modification in 4215 question. According to Shri Sakhare, this was an error of judgment on the part of the concerned in applying the provisions of section 50 of the said Act for effecting the modification. We do not agree with this submission made by Shri Sakhare the ld. Counsel for the GOM that it was merely an error of judgment. 45.12. Shri Mone the Id. Advocate for the Adarsh CHS pressed into service the doctrine of promissory estoppel and submitted that the GOM has changed its original stand in this respect. He further submitted that relying upon the grant of additional FSI, the society altered its position and constructed additional 17 floors on its building and therefore it is not now open to the GOM to fall back and say that recourse should have been taken not under section 50 but under section 37 of the MRTP Act. It may be noted that the Commission is not a court of law to adjudicate upon the legal rights of parties. The matter before the Commission is not a /is but only an inquiry with reference to the terms of reference. Therefore the contention raised by Shri Mone in this respect cannot be agitated before this Commission. The government may or may not change its stand regarding application of section 50 of the Act but the fact remains that the procedure followed by the GOM for effecting the modification in respect of BEST plot is not in accordance with the provisions of section 50 of the MRTP Act and therefore on that count it is not legal. a \L (\216 WHETHER LOADING OF FSI OF BEST PLOT ON THE LAND IN QUESTION WITHOUT AMALGAMATION IS LEGAL. 46, The Government in Revenue & Forest Department issued a memorandum dt. 5-8-2005 Exh. AS-93 and granted permission to the Adarsh CHS to use the FSI of the BEST plot on the land in question which was already granted to it. It is not understood how the Revenue Dept. could permit the utilization of the FSI of one plot to the adjoining plot. The subject matter of FSI and loading of it to the adjacent plot belongs to the UDD. _ By the same memorandum the Adarsh CHS was further permitted to make use of 700 sq. mtrs, built up area for commercial purpose. The permissions granted as per this memorandum is subject to certain conditions enumerated in it and condition No.3 which is relevant for the purpose of discussion on the above mentioned point is to the effect that prior permission of the MMRDA being the Special Planning Authority and the MCGM shall be obtained for using the FSI of the BEST plot on the land in question allotted to the Adarsh CHS. Admittedly the BEST plot and the land in question are contiguous and they belong to GOM. But they have not been amalgamated. Therefore a question arises as to whether transfer of FSI of BEST plot in favour of the Adarsh CHS without its amalgamation with the land in question would be lawful. For this purpose reference will have to be made to the oral evidence of some of the witnesses.217 46.1 Smt. Valsa Nair Singh (GOM W.No.17) worked as Collector, Mumbai city from 28-7-2006 to 21-4-2007 and thereafter she has been holding the charge of the post of Prin. Secretary, Department of Environment, GOM from 29-8-2008. She has stated in para 6 and 7 of her deposition that if the plots are amalgamated then only the FSI can be used. However she was not aware if there is any provision in any Act or circular requiring amalgamation of two plots. In para 16 of her evidence she has stated that she was the Chair Person of the 66% meeting of MCZMA held on 3-11-2010. The minutes of the said meeting are at Exh. C-58-A which record inter alia “No MOoEF clearance was taken for amalgamating part of BEST plot admeasuring 2669 sq. mtrs. and the transfer of FSI to the construction though this was mandatory condition in the order of Revenue Department while allotting the said plot to the society’. In para 18 of her evidence she stated “As per clause (2) MoEF clearance is meant in totality for amalgamation, transfer of FSI and construction on the BEST Plot.” it may be pointed out that clause (2) of the memorandum Exh. AS-93 does not specifically speak about amalgamation. The original memorandum is in Marathi and its English translation reads as under: “ Since the land falls in CRZ, construction upon the said land would be permissible subject to the terms and conditions of the Development Control Rules dt. 19-2-1991. It will be necessary for the society to obtain permission of the MoEF in case the cost of its project is more than Rs. five crores.” (‘There he.218 appears to be some mistake in condition No.2 as mentioned in the memorandum Exh. AS-93. The DCR of 1991 are dt. 20-2- 1991 and they came in force on 25-3-1991. Probably reference was intended to the MoEF notification dt. 19-2-1991). 46.2. In para 21 of her evidence she stated that she had no power as a Collector for amalgamation of plots without the direction of the government. She further stated that if he government passes order of amalgamation then as a Collector she would have to follow the same but she does not know the parameters for granting or not granting amalgamation of clause. In para 22 of her evidence Smr. Valsa Nair Singh was put the following question and she answered accordingly : “Q. Clause (a) of the order dt. 5-8-2005 gives direction to the Collector to pass all appropriate orders to facilitate use of FSI of BEST plot for construction on plot in question. Such use would not be possible according to you unless there is an order of amalgamation, Is it correct ? Ans: I do not agree with this.” She was further asked as to whether the requirement of amalgamation of two plots is only ancillary requirement as against the substantial requirement and her reply was to the effect that the ancillary requirement and substantial requirement are closely linked and that both are linked to each other. 46.3. Shri Subodhkumar (LW. No.3) who has been working as Municipal Commissioner since 3-1-2011 has stated in para a219 18 of his evidence that as regards the amalgamation of two plots there is no restriction in the city of Mumbai but he was unable to find out any specific provision under which FSI of one plot can be loaded on the other plot. He further stated that in case of amalgamation, two plots become a single plot with single CTS number and therefore the question of loading of FSI of one plot on the other does not survive. He further stated that the BMC had not received any document showing amalgamation of the two plots in question. In para 32 of his evidence he stated that the BMC does not allow FSI of one plot to another plot unless the two plots have been merged and CTS record is corrected. This, according to him, is necessary to ensure that “FS! does not get claimed by the first plot by different CTS numbers in future’. 46. Shri Sitaram Kunte (GOM W NO. 16) the present Municipal Commissioner has stated in para 16 of his evidence that he was unable to pin point the exact provision of MRTP Act and DCR under which amalgamation of two plots is mandatory. However he added that it was mandatory on the basis of the deliberations made in the 66"" meeting of MCZMA. Shri Sanjay Kurvey (GOM W.No.13) who is the Dy. Director of Town Planning, Gr. Mumbai has stated that he wrote a letter dt. 14-3-2006 Exh. GOM-351 to the Prin. Secretary, UDD giving opinion on certain points on which clarification was sought by the said department. Point No. 3(b) is to the effect as to under which provision of the DCR, FSI of two plots can be allowed to te \220 be used on one plot. In reply to this query he has stated in the said letter that the Special Planning Authority has the power to permit amalgamation of two plots. However when he was called upon to point out a specific provision in the DCR, he sought time and on the next day he replied in para 17 of his evidence that he did not find any such provision in any DCR. He further stated that in the absence of any provision regarding amalgamation of plots in any DCR, FSI of one plot cannot be loaded on the other. In para 53 of his evidence Shri Kurvey admitted that he could not even name the statute under which amalgamation is required to be made. According to him amalgamation is a subject of R&FD and he could not say as to who has to apply for amalgamation of plots. 46.5. Shri T.C. Benjamin who has been working as Addl. Chief Secretary, UDD stated in para 24 of his evidence that if the FSI of adjoining plot is to be used on the original plot, amalgamation of both the plots is necessary. Replying to the question : “Whether for use of FSI of the plot reserved for BEST on the plot allotted to Adarsh, would CRZ clearance be required ?”, Shri Benjamin replied as under: “ Using the FSI of BEST plot on the plot of Adarsh itself is wrong. FSI is plot specific. By virtue of its own definition FSI is the ratio of the total covered areas of all the floors to the plot area. The plot is defined in MRT&P as a portion of land held in one ownership and numbered and shown as one plot, In this case the two plots are numbered different. The Adarsh plot is CS No. 652 and the BEST221 plot is CS No. 657. If the ownership is common, without amalgamation of the plot on which there is no construction and of which FSI has already been used can be sold and independently used subsequently without knowledge of the fact that it does not have any FSI potential. Such instances have happened in several parts of the State. So amalgamation is a prerequisite condition when FSI of plots of the same owner has to be utilized.” \n para 41 of his evidence Shri Benjamin stated that amalgamation of two plots means compiling two plots having two distinct survey numbers and making a single plot with discrete survey number and discrete boundary. It will be shown as one plot in the property card and it is done by the Collector under the Land Revenue Code. 46.6. We have referred to the evidence of the relevant witnesses in details only because there is no specific provision either in the MRTP Act or the DCR about amalgamation of two plots and particularly loading of FSI of one plot on the other. No body at the Bar could also point out any particular provision or Rule in this respect. Under these circumstances, reference will have to be made to the provisions of the Maharashtra Land Revenue Code, 1966. Section 40 of the Code deals with the saving of powers of government which reads, “Nothing contained in any provision of this Code shall derogate from the right of the State Government to dispose of any land, the property of government on such terms and conditions as it deems fit” It is thus seen that the government's right to a22 dispose of its property including any land is absolute. In the context of BEST plot what is transferred is not the plot in itself but only the FSI of that plot. Therefore the question which arises is; whether FSI in respect of a land/plot can be regarded as “Land” within the meaning of the term as given in section 2(16) of the Code or section 2(14) of the MRTP Act. Section 2(16) of the Code reads as under: “16. “Land” includes benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, and also shares in, or charges on, the revenue or rent of villages, or other defined portions of territory.” Section 2(14) of the MRTP Act reads as under: “14. “Land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.” 46.7, The term “benefits to arise out of land" has not been defined in the MLR Code. However, in the Advanced Law Lexicon by Shri P. Ramanath Iyer its meaning is given as follows: - “Future rents payable in respect of lands are benefits to arise out of land within the meaning of section 3 of the Registration Act. Similarly a debt which is made a charge on land constitutes “benefit to arise out of land’ within the meaning of those words in clause 2(5) of General Clauses Act AL223 1868”, Clause 24 of section 3 of the Bombay General Clauses Act 1904 defines immovable property as follows: “Immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth”. The term “benefits to arise out of land” has not been defined specifically under the General Clauses Act 1897 as well as the Bombay General Clauses Act 1904 probably because FSI is a subsequent concept. However since the FSI arises out of the land itself, there is no reason not to treat the same as “benefits to arise out of land” and therefore it is an immovable property. In this connection it may be noted thatthe concept of TDR (Transfer of Development Rights) in Mumbai was introduced in the DCR 1991 to accelerate acquisition of reserved plots of land and eliminate payment of compensation to the owners. Regulation 34 stipulates “in certain circumstances, the development potential of the land is separated from the land itself and may be made available to the owner of the land in the form of Transferable Development Rights (TDR).....". We are therefore of the opinion that, there should be no difficulty in treating FSI of a land to be an immovable property which can be transferred. The concept of TDR as a saleable right was first introduced in the 1991 DCR. Therefore in cases where DCR 1967 are applicable, the concept of TDR did not exist. In addition, even the DCR 1991 which introduced the concept of TDR as a transferable and saleable right did not permit it to be Ae224 used in island city of Mumbai but is applicable only in respect of TDR arising out of heritage structure which is allowed in the same ward. 46.8. Our view in this respect is supported by the decision of the Bombay High Court in Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid & ors. -2007(3) MAH.LJ. 402 and the decisions of other High Courts relied upon by the Division Bench of the Bombay High Court. The following observation made by the Division Bench in para 15 of its judgment is relevant and it reads as under: “Can FSI/TDR be said to be a benefit arising from the land. Before answering that issue, we may refer to some judgments for that purpose. In Sikandar & ors Vs. Bahadur & ors. XXVII Indian Law Reporter, 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of section 3 of the Indian Registration Act, 1877. A lease, therefore, of such right for a period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in Ram Jiwan and anr. Vs, Hanuman Prasad and Ors. AIR 1940 Oudh 409 also held, that bazar dues, constitute a benefit arising out of the land and therefore a lease of bazar dues is a \ he225 lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi Vs. Ram Das and ors. AIR 1974 Allahabad 473 on a consideration of section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in money would be an adequate relief.” 46.9. In the instant case the GOM was therefore within its right when it transferred the FSI of BEST plot admeasuring 2669 sq. mtrs. to the Adarsh CHS. The question of amalgamation of the two lands i.e. the land in question and BEST plot does not arise since both the properties are owned by the GoM. 46.10, To conclude the discussion on issue no.4, we however say that the deletion of the plot reserved for BEST and its conversion to residential purpose for allotment to the Adarsh CHS was not in accordance with law, particularly as per section 50 of the MRTP Act. We record our finding on issue no.4 accordingly. a226 Issue No.5:- Whether provisions of Maharashtra Regional and Town Planning Act, 1966 and Development Control Rules and Regulations framed thereunder have been contravened in utilization of FSI for items like staircase, lift, lobby etc. and raising the height of the Society's building. WHICH DCR IS APPLICABLE TO THE BUILDING OF ADARSH CHS? 47. This is the most crucial, basic and debatable question which was argued before the Commission by the concerned parties. It may be noted that the MRTP Act 1966 has been enacted inter alia to make provisions for planning the development and use of land in regions established for that purpose and to make better provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective. The said Act came into force on 11-1-1967. Prior to the said Act, the Bombay Town Planning Act 1954 was in force in the then State of Bombay. But the same was repealed by the provisions of section 165(1) of the MRTP Act, 1966 which has substituted itself in place of that Act. The Development Control Rules for Greater Bombay (DCR 1967) were made in 1967 under the provisions of this Bombay Town Planning Act, 1954 and “they came into force with effect from 9-2- 1967 for the purposes of all parts of the Development Plan of Greater Bombay (as amended up to date)’. After the coming into force of wy207 MRTP Act, 1966, the Municipal Corporation of Greater Bombay prepared a revised Development Plan for Greater Bombay and also new draft DCR in 1989 which ultimately culminated in Development Control Regulations for Greater Mumbai 1991 (DCR 1991). They were notified on 20-2-1991 and they came in force with effect from 25-3-1991. 47.1. The evidence of Shri Bharat Yamsanwar, the Principal Architect, Team One Architect (IW. No. 13) shows that the proposal for construction of the building of Adarsh CHS was submitted under the letter dt, 7-3-2005 Exh. AS-273 colly. to the Executive Engineer, Building proposal (City) MCGM along with the requisite documents. It appears that sometime thereafter Shri R.C. Thakur, Chairman of Adarsh CHS applied to the MCGM for issue of the Commencement Certificate. However, his application Exh. AS- 191-B does not bear any date. The Commencement Certificate dt. 6-9-2005 Exh, AS-213 was issued by the MMRDA for the development of proposed residential building consisting of stilt plus 14 upper floors on the land in question. This was the first Commencement Certificate and it was granted for construction up to plinth level subject to the conditions enumerated therein. In short, the processing of the building proposal of the Adarsh CHS was started in the year 2005 by the MMRDA. 47: As already pointed out the DCR 1991 had come into force with effect from 25-3-1991. However, instead of applying the provisions thereof, the MMRDA applied the provisions of draft Mh28 DCR 1989 on the ground that they were more stringent. We shall deal with this aspect a little later. For the present, it is necessary to bear in mind that the land in question falls in CRZ-Il category which fact has a material bearing on the question as to which DCR would apply to the building proposal of Adarsh CHS. At this stage it would be necessary to make a reference to the CRZ notification dt. 19-2-1991 issued by the MoEF. We have already referred to the relevant provisions of this notification in para 44.3 and 44.4 above. But for the purpose of continuity of discussion we may briefly refer to para 6(2) of the said notification which is at Exh. MMRDA-35. Para 6(2) lays down norms for regulation of activities and it states that development or construction activities in different categories of CRZ area shall be regulated by the concerned authorities at the State/Union territory level in accordance with the norms. So far as CRZ-II area is concerned, it states that building shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management plan of the area) nor on seaward side of existing authorized structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorized structure shall be subject to the existing local Town & Country Planning Regulations including the existing norms of FSI/FAR. A clarification dt. 8-9-1998 Exh. MMRDA-71 was issued by the Jt. Secretary of MoEF and the relevant para of the clarification reads as under: \ de47.3, 229 “2. It is clarified that the phrase “Existing Authorised Buildings” means those buildings of a permanent nature that were existing prior to 19-2-1991, and were constructed in accordance with the building regulations and bye-laws in vogue prior to 19-2-91, and had received necessary sanctions including commencement and occupation certificates from the concerned local authority prior to 19-2-1991. Further, the construction of buildings, including expansion and reconstruction, should be in accordance with the FSI/FAR norms and all other Town & Country Planning Regulations, including maximum permissible density, height, zoning etc. that were prevalent and in force as on 19-2-1991. The phrase building means a permanent fixed structure with a roof forming in enclosure and providing protection from the elements.” In Overseas Chinese Cuisine (India) Pvt. Ltd & anr. Vs. The Municipal Corporation of Greater Bombay & ors. -2000(1) Bom.C.R. 341, interpreted the word “existing” as used in the notification and observed that the same cannot be read differently at different places within the same part of the notification. It was observed, "The use of participle “existing” to qualify Local Town and Country Planning Regulations including the norms of Floor Space Index/Floor Area Ratio is, in our view not merely accidental. It serves an important purpose, namely, to highlight that irrespective a230 of what Local Town and Country Planning Regulations may provide in future in any nook and corner of the country and irrespective of how the norms of Floor Space Index/Floor Area Ratio might be revised at some point of time, the building activity permitted under the notification in CRZ-II shall be frozen to the laws and norms existing on the date of notification. This interpretation, in our view, is perfectly in consonance with Legislative intention behind the Environment(Protection) Act 1986.” 474. In Buildarch & anr. Vs. Union of India & ors. - 2000(Supp.) Bom.C.R. 564, another Division Bench of the Bombay High Court had the occasion to consider the validity of clarificatory letter dt. 8-9-1998 (Exh. MMRDA-71) addressed by the Jt. Secretary of the MoEF. The Division Bench agreed with the view expressed by the earlier Division Bench in the case of Overseas Chinese Cuisine (India) Pvt. Ltd. and observed that the said clarification is in consonance with the notification dt. 19-2- 1991 and it does not in any manner amend, modify or alter the original notification dt. 19-2-1991. 47.5. The most important decision on the question as to which DCR would be applicable in the present case is the decision of the Supreme Court in the case of Suresh Estates (supra). In para 27 of the said judgment it is observed as under:231 “It is true that the DC Regulations for Greater Bombay, 1991 were notified on 20-2-1991 and came into force with effect from 25-3-1991. However, a doubt was raised whether the existing DC Regulations for Coastal Regulation Zone II (CRZ-II) would mean the DC Rules, 1967 or Draft Development Control Regulations, 1989 which ultimately culminated into the DC Regulations, 1991 and, therefore, MOEF was consulted. MoEF issued a clarification on 8-9-1998 stating that the DC Regulations as existing on 19-2-1991 would apply for all developmental activities in Coastal Regulation Zone including CRZ Il. MoEF also issued clarification on 18-8-2006 reiterating that the existing DC Regulations applicable to CRZ II areas in Mumbai would mean the DC Rules, 1967. Even the Municipal Corporation in its letter dated 31-12-2005 addressed to the Principal Secretary, Urban Development Department, Government of Maharashtra, had expressed the view that the application made by the appellants for construction of a luxury hotel with additional FSI under the DC Rules, 1967 be granted under Rule 10(2) of the Rules.” It will thus be seen that so far as the building proposal of the Adarsh CHS is concerned, the only DCR which would apply to it is the DCR 1967 and not the draft DCR 1989 or the DCR 1991. it may be pointed out that the CRZ notification was issued one \\ of232 day earlier i.e, on 19-2-1991 whereas the notification regarding the DCR 1991 was issued on 20-2-1991 and the said DCR became applicable with effect from 25-3-1991. Therefore the DCR 1967 were applicable to the building proposal of Adarsh CHS even though the said proposal was made in the year 2005 when DCR 1991 were in force. This position may ex-facie appear to be absurd but the same was held to be perfectly feasible and compatible with the legislative intent as observed in the case of Overseas Chinese Cuisine (India) Pvt. Ltd. (supra). Therein it was observed, “After all, what the Notification intends is that the FSI norms be pegged at the level at which they existed in February 1991. This was the extent to which the coastal area had already been built upon. If, therefore, even in future, notwithstanding reduction of the FSI norms elsewhere, the CRZ-II zone is given this benefit, we see nothing wrong or objectionable therein, nor any reason against such construction being adopted. At the highest, this may be a factor to be reckoned with in the future legislation. We decline to consider the construction of the CRZ notification done by the petitioners are arbitrary, absurd or irrational". 47.6, Asalready stated the Planning Authority i.e. MMRDA has, in the instant case applied draft DCR 1989. To justify that act on the part of the MMRDA, Ms. Kiran Bagalia the Id. Counsel for the AL233 MMRDA tried to draw support from the provisions of section 46 of the MRTP Act which read as under: “46, Provisions of Development Plan to be considered before granting permission. The Planning Authority in considering application for permission shall have due regard to the provisions of any draft or final plan or proposal, published by means of notice, submitted or sanctioned under this Act’. Ms. Bagalia the Id. Counsel submitted that it has been a widely accepted town planning principle that pending finalization of proposed change, the Planning Authority will grant permissions by following the more stringent of the two DCRs. She emphatically submitted that this method is in public interest besides being proper, prudent and logical. However it is not possible to accept the submission of Ms. Bagalia, in view of a clear finding recorded by the Supreme Court in para 26 of its judgment in Suresh Estates case which is to the effect “Having regard to the facts of this case, the court is of the opinion that the contention that Planning Authority has to take into consideration the draft Regulations of 1989 and therefore the appellant would not be entitled to additional FS cannot be accepted and is hereby rejected.” *&\234 477. Ms. Bagalia relied upon the following decisions to substantiate her contention that the draft DCR of 1989 also have to be taken into consideration by the Planning Authority. These decisions are: 1) S.N. Rao & ors. Vs. State of Maharasthra & ors.- (1988) 1 SCC 586, 2) Shirdi Nagar Panchayat Vs. Gordia Budget Hotel & ors. - 2009(2) Mh.LJ. 714 and 3) Shrikant s/o Uttamrao Bhutekar & ors. Vs. State of Maharashtra & ors. - 2009(2) Mh.L.J. 673. The ratio of these three decisions that the Planning Authority while granting permission shall have due regard to the provisions of any draft of final plan holds good in the peculiar facts and circumstances of those cases. It is important to bear in mind that unlike the three cases referred to above, in the instant case, the land in question falls under CRZ-II category and the decision in the case of Suresh Estates holds the field. Even otherwise the submission of Ms. Bagalia, does not appeal to reason for the simple reason that draft DCR means the DCR which have not been finalized and come into effect. They become effective only after the same are finalized and approved by the competent authority. The words “shall have due regard” appearing in section 46 of the MRTP Act cannot be regarded as absolute and they will have a limited application in a particular case only. 47.8. Shri Pradeep Yadav has affirmed in para (i) of his affidavit that the permissible FSI on the land in question as per the DCR 1967 is 3.5 and as per the draft DCR 1989 it is 1.33. He has further stated that since the FSI is the governing factor in ee235 determining the intensity of the overall development and considering the spirit of CRZ notification of 1991, the MMRDA restricted the FSI to 1.33 by using the stringent of two Development Control Regulations. The same thing is affirmed by Shri Yadav in para (g)(2) of his affidavit dt.13-1-2011 Exh. MMRDA-140 filed in Writ Petition no. 2407 of 2010 by the Adarsh CHS in the High Court. Para 1 of the said affidavit makes it clear that the same was filed by him “to place on record the stand of respondent no.5 in so far as the issues raised in the above petition are concerned”. Respondent no.5 in that petition is the MMRDA. It is therefore clear that it was the official stand of the MMRDA to apply draft DCR 1989 to the construction proposal of the Adarsh CHS. 47.9. Since before the building proposal of the Adarsh CHS was processed by the MMRDA, it was fully aware of the CRZ notification dt. 19-2-1991 but it was of the view that draft DCR 1989 was applicable to the BBR area. This is clear from the note dt, 27-4-2005 Exh. MMRDA-32 prepared by Shri Khandare, Dy. Planner and approved by his superiors. The same note is drafted in Marathi and para (viii) of this note refers to the CRZ notification dt. 19-2-1991, It is concluded therein that the draft DCR published on 14-12-1986 were applicable to the BBRS area since they contain a more stringent provision regarding permissible FSI which is only 1.33. The MMRDA seems to have forgotten its own notification published as early as 1977 freezing the FSI to 1,33 and later reiterated in a consolidated GR in 1987, io236 47.10. After the Adarsh CHS submitted its proposal for construction of a residential building, a note Exh. MMRDA-51 was put up by Planner Shri Khandare of the MMRDA on 23-8-2005 for approval of the said proposal. In para 7 of the said note there is a reference to the land in question as falling in CRZ-II category and also to the CRZ notification dt. 19-2-1991 stating that development is permissible in CRZ-II area according to the prevailing DCR. Shri Khandare has then referred to DCR 1967, draft DCR 1989 and DCR 1991 and proceeded to observe, “the permissible FSI on the plot under reference is 3.5 as per the DCR 1967 and FSI 1.33 is permissible under draft DCR 1989. The stringent between the FSI under DCR sanctioned by government in the year 1967 and the draft DCR published in the year 1989 is applicable, which is the draft DCR published in the year 1989.” Even in the earliest correspondence with the GOM in connection with the construction proposal of the Adarsh CHS, it is seen from Exh. MMRDA-46 which is a letter dt. 22-12-2005 addressed by Shri Luktuke, Chief, Town & Country Planning, MMRDA to the Principal Secretary, R&FD, it is stated in para 4-A that since the land in question falls under CRZ area, the permissible FSI as per Rule 26(2)(iii) of the draft DCR 1989 is 1.33. In yet another note dt. 16-8-2006 Exh. MMRDA-84 on the same subject the Planner Shri Khandare has observed in para 6 as under: “According to the CRZ provisions prevailing DCR i.e. Draft Development Control Regulations published on 1989 are applicable to this development within the preview (sic aL237 purview) of these regulations, MMRDA has granted to this applicant development permission up to plinth & issued the Commencement Certificate on 6-9-2005 and the society started the construction work.” It is not necessary to refer to each and every letter and/or note of the MMRDA on the subject of the construction proposal of the Adarsh CHS. The above mentioned letters and notings are sufficient illustrations of the fact that the MMRDA applied draft DCR 1989 to the construction proposal of the Adarsh CHS. 47.11, It is important to point out that Shri Senthil Vel, Addl. Director, MoEF by his letter dt. 18-8-2006 Exh. MMRDA-54 informed the Principal Secretary, UDD that all developmental activities proposed to be taken up in the CRZ area have to follow the norms as existed on 19-2-1991 including the FSI/FAR norms. He further pointed out that the word “existing” has been interpreted by the Ministry vide letter dt. 8-9-1998 addressed to the Chief Secretary, GOM as prevalent on 19-2-1991. He has further clarified, “In view of the above clarification, the DCR Regulations which was under implementation on 19-2-1991 ie. approved DCR of 1967 shall be considered and not the draft (DCR)of 1989 which came into force on 20% February 1991 as it was still in a draft stage on 19-2-1991." It is pertinent to note that despite this clarification, the MMRDA has proceeded to apply draft DCR 1989 to the construction proposal of Adarsh CHS. wb \\238 47.12. Ms. Bagalia pointed out that the letter Exh, MMRDA-54 was addressed to the Principal Secretary, UDD but the same was not circulated by him. According to her “the State Government was not clear of its stand and was opposed to the interpretation of making 1967 Development Control Regulations applicable to CRZ area’. (vide page 14 of Ms. Bagalia’s written submission). Shri Ramanand Tiwari (AS W. No.3) who was at the relevant time Principal Secretary, UDD was confronted with the letter Exh. MMRDA-54. In para 43 of his evidence he admitted to have seen the said letter and stated that he did not circulate this letter to the Planning Authority. The explanation of Shri Tiwari for his failure to do so has been recorded by the Commission in the following words, ” The witness volunteers that this letter was in response to his letter to the MoEF. Although this clarification was received, the Government has some cases where it was thought that immediate circulation of this circular may lead to some practical problems and distortion of the land use in CRZ areas. In fact, following the circular could have led to use of more FSI in CRZ area than in non- CRZ areas. The Government therefore decided not to circulate the said letter. This was done in the larger public interest)" The Commission does not appreciate and much less approve the explanation given by Shri Ramanand Tiwari in this respect. It smacks of high handedness and ulterior motive. Neither Shri Tiwari nor the GOM produced any file or noting to show that such a decision not to circulate the said letter was taken at the government's level. The explanation of Shri Ramanand239 Tiwari ignores the fact that by a notification dt. 10-6-1977 which was subsequently consolidated in 1989, the MMRDA had frozen the FSI to 1.33 within the areas of the city of Bombay. Therefore the apprehension expressed by Shri Tiwari that if the letter Exh. MMRDA-54 had been circulated, it would have led to use of more FSI is groundless. Further the explanation of Shri Tiwari is found to be contrary to the spirit of the decisions in the cases of Overseas Chinese Cuisine (India) Pvt. Ltd. and Buildarch & anr, decided by the Bombay High Court way back in 1999. The judgment in Suresh Estates case came in 2007. 47.13, Whatever be the reason for Shri Ramanand Tiwari’s failure to bring the letter Exh. MMRDA-54 to the notice of the MMRDA, the fact remains that so far as CRZ-II area is concerned, the DCR 1967 and not draft DCR 1989 or DCR 1991 which ought to have been applied. The MMRDA has been working as the Special Planning Authority for BBR area since 1983. It is fully aware of the CRZ notification dt. 19-2-1991 as well as the clarification dt. 8-9-1998 given by the MoEF. If these two documents had been carefully perused by the officers of the MMRDA, then they would not have faced any difficulty to realize that what was intended was the construction of buildings etc. in CRZ area ought to be in accordance with FSI/FAR norms and all other Town & Country Planning Regulations prevalent and in force on 19-2-1991. Itis therefore clear that the DCR which were in force on 19-2-1991 were no other but the DCR 1967. If the MMRDA had any doubt in its mind as to which DCR the MMRDA wl,240 should apply for construction activity in BBRS area, it could have very well sought clarification of the MoEF through GOM. The MMRDA could have also consulted and obtained opinion of its legal department about the question as to which DCR was to be applied in CRZ area. However nothing of this sort appears to have been done by the MMRDA. There is no consistency in the evidence of two officers of the MMRDA as to why draft DCR of 1989 was applied in the present case. 47.14. — The Sr. Planner Shri Pradeep Yadav has referred to the letter dt. 7-6-2006 Exh. MMRDA-72 addressed to it by the UDD and stated that this letter indirectly directs the MMRDA to apply 1991 DCR since the clauses referred to therein pertain to the DCR 1991, Again in para 120 of his evidence he has stated that ultimately the entire project was examined with reference to the DCR 1991 subsequent to the clarification from the UDD’s letter dt. 7-6-2006. As against this, Shri Umesh Luktuke (CW W.No.8) who was the Chief of Town & Country Planning Division has stated in para 9 of his evidence that the “DCR 1991 was made applicable not on the say of the UDD but of our own. The DCR 1991 was applied on my own based on the sanctioned Development Plan for BBRS. The land in question falls in CRZ-II area and therefore draft DCR 1989 was made applicable to Adarsh CHS.” The self contradiction in the evidence of Shri Luktuke is evident. Moreover, there has been no consistency in applying the provisions of draft DCR 1989 and DCR 1991. For instance, Shri Yadav has stated in para 218 of his evidence that initially the draft DCR 1989 were made aL241, applicable but later on the DCR 1991were made applicable to the Adarsh CHS. He further added that the draft DCR 1989 were made applicable for the grant of first C.C. dt. 6-9-2005 up to the plinth level and subsequently all C.Cs. were issued as per the DCR 1991. Shri Yadav while answering to a question in para 224 of his evidence viz. “Q. - Is it true that MMRDA was not consistently applying “stringent of the two" criterion to the case of Adarsh CHS 2", replied as under. “No. not itemwise but the stringent DCR in terms of FSI which is the governing factor for controlling the intensity of development has been applied in the case of Adarsh CHS." Shri Yadav further volunteered that “Two DCRs cannot be applied at one instance”. 47.15. To conclude the discussion on the point in question we hold that the appropriate DCR which ought to have been applied to the construction proposal of Adarsh CHS are the DCR 1967 for the aforesaid reasons. WHETHER THERE HAVE BEEN CONTRAVENTIONS IN UTILISATION OF FSIIN RESPECT OF CERTAIN ITEMS IN THE CONSTRUCTIONOF THE BUILDING OF ADARSH CHS.? Floor Space Index (FSI) 48. Once it is concluded that the only DCR which was applicable to the case of Adarsh CHS is the DCR 1967, the violations in the LL242 utilization of FSI for various items have to be checked with reference to that DCR only. Consequently it is needless to refer to the other two DCRs. ie. draft DCR 1989 and DCR 1991 to find out as to what provision they contain for consumption of FSI for various items. As per Reg. 10 Rule 9(i) of the DCR 1967 the FSI permissible in residential and commercial zone shall not exceed 3.5 in BBRS Blocks III to VI. However it is necessary to note the modification in the said FSI_ made by the Metropolitan Authority by issuing a notification dt. 10-6-1977 which along with subsequent notifications was consolidated in the notification dt 5-10-1989 (Exh. MMRDA-26) in exercise of its power under sec. 13(1) of the BMRDA Act 1974 read with section 21 of the Bombay General Clauses Act 1904. As per this modification certain specified types of development of land cannot be undertaken within the specified area by any authority of person except with the permission of the Metropolitan Authority. Clause (B) of the said notification mentions as under: “Construction or reconstruction of any building, including addition to any existing building, so as to have a floor space index, as defined in Rule No.51 of the Development Control Rules for Greater Bombay, exceeding 1.33 or that provided in the said Development Control Rules, whichever is lower, but excluding construction or reconstruction of any building or addition to any existing building.” at \243 48.1. Shri Manish Desai the Id. Counsel for the Adarsh CHS contended that reduction of FSI from 3.5 to 1.33 by issuing notification amounts to change of DCR Rules and plan. It appears that the initial notification dt. 10-6-1977 was amended on 5-10- 1989 (vide Exh, MMRDA-26) by which all previous notifications in this behalf were consolidated into single notification. The consolidated notification makes reference to section 13(1) of the BMRDA Act 1974 and section 21 of the Bombay General Clauses Act 1904. Section 21 of the Bombay General clauses Act reads as under: “21. Power to make to include power to add, to amend, vary or rescind orders, etc.- Where, by any Bombay Act (for Maharashtra act) a power to issue notifications, orders, rules or bye-laws is conferred, then, that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws, so issued.” In view of the above mentioned provisions, it is not possible to accept the contention of Shri Desai. Further it may be noted that it is beyond the scope of this Commission to examine the validity or otherwise of the notification Exh. MMRDA-26. If the Adarsh CHS felt aggrieved by the said notification on account of reduction in FSI, it was open to it to challenge the same at the appropriate forum. \ ae244 48.2. Shri Desai further contended that the said notification was not in force and it ceased to apply in 1991. Therefore according to him the said notification could not have been validly applied in the year 2006. In support of his submission Shri Desai drew our attention to para 3 of the said notification which reads, “This Notification shall continue to have effect and be in force until the 10° October 1991,” It may however be pointed out that the life of the said notification was further extended till 10-10-1993 by a subsequent notification No.A/RDM/1091/910 dt. 10-10- 1991 issued by the BMRDA. Subsequently by another notification No. A/RDM/1092/910 dt. 21-8-1992 the Metropolitan Authority rescinded and repealed its notification No. A/RDM/1091/910. In short, it means that the initial notification of 1977 which along with other notifications was consolidated in 1989 was effective till 21-8-1992. Therefore the submission of Shri Desai does not hold any ground. It may further be pointed out that the CRZ notification Exh. MMRDA-35 was issued on 19-2-1991 and it has the effect of controlling the construction activities as per the then existing norms of FSI/FAR. On the date of the CRZ notification the FSI available in CRZ-II area was only 1.33 in view of the above mentioned notifications. Therefore even on merits Shri Desai’s submission is untenable. 48.3. It will thus be seen that the FSI of 3.5 provided by the DCR 1967 came to be frozen way back in 1977. Therefore there mL245, is absolutely no substance in the statement made on behalf of the MMRDA that DCR which provided lesser FSI was made applicable to the case of Adarsh CHS. This contention is based on the FSI of 3.5 as mentioned in Reg. 10 Rule 9(i) of the DCR 1967 by ignoring the subsequent modification made by the notification referred to above. Incidentally it may be pointed out that the draft DCR 1989 as well as the DCR 1991 provide for 1.33 as permissible FSI. Shri Yadav has submitted a chart Exh. MMRDA- 143 which gives comparative item wise position of available FSI for various items. 48.4. Shri Bharat Yamsanwar (IW. No.13) who is a Director and Principal Architect of Team One Architect (1) Pvt. Ltd. was appointed by the Adarsh CHS as its architect under an agreement dt. 23-2-2005 Exh. IW-55. He submitted the building proposal to the MCGM as per his letter dt. 7-3-2005 Exh. AS-273 colly. along with several documents which include a copy of plan of the property showing the location of both the plots. As per this plan Plot A is the land in question and Plot B is the adjoining BEST plot of which additional FSI was allotted to the Adarsh CHS. He has prepared two tables of area calculation in respect of the said two plots. (Exh. IW-64-A and IW-64-B respectively). The former table contains the area calculation of Plot A whereas the later contains area calculation of Plot A and B. The second table ie. Exh. IW-64-B is reproduced below for the purpose of he246 understanding as to how he has calculated the FSI of both the plots. Itis as under: Area Calculation of Plot A & Plot B. 1. [PlotArea A 3824.93 sq. mt. | 41171.54 sq.ft. 2. |Plot Area B (neighbor- | 2664.13 sqmt | 28676.69 sq.ft. ing plot. "3. [Total Area of Plot(1+2) | 6489.06 sq.mt. | 69848,24 sqft. | 4. |Deduction for road set | 1004.58 sqmt. | 10813.29 sqft. back 5. | Balance Area of Plot (3- | 5484.48 sq.mt. | 59034.94 sqft. 4) 6. |Deduction for RG(15%|573.73sqmt. | 6175.62 sq.ft. on 1) 7. | Net Area of plot (5-6) | 4910.74 sq.mt. | 52859.20 sqft 8. | Addition for FSI (add 4/5915.32 sqmt. | 63672.50 sqft 100%) 9, | FSI permissible 1.33 10. | FSI available 7867.37 sq.mt. | 84684.37 sq.ft. 48.5. Inthe notings dt. 2-11-2010 Exh. GOM-396 and dt. 9-11- 2010 Exh, GOM-399 the calculation of permissible FSI for Adarsh CHS has been worked out as follows: bh247 1. The area of the plot granted by the R&FD -- 3824.43 sq. mtrs 2. FSI of the plot reserved for BEST granted to the AdarshCHS -- 2669.68 sq.mtrs. 3. Consolidated area ofboth the plots —_-- 3824.43 +2669.68 = 6494.11 sq.mtrs. 4. Permissible FSI = 1.33 = 1.33 X 6494.11 = 8637.16 (sq.mtrs) 5. Actual permissible built up area -- 8402.00 sq.mtrs. 6. Actual built up area -- 8401.00 sq.mtrs. (as per 0.C.) 48.6. Wehavechecked the calculations of FSI as made by Shri Yamsanwar and the UDD and we find that both are not correct. ‘The first mistake which they have committed is with regard to the actual area of the land in question (which is shown as Plot A in the plans Exh. IW-64-A and 64-B) is stated to be 3824.43 sq. mtrs, whereas as per the LOA Exh. GOM-5 read with the corrigendum Exh. GOM-78 it is 3758.82 sq. mtrs. The second mistake which both of them have committed is that they have worked out the total area of both the plots on a wrong footing. The Adarsh CHS was not allotted the plot reserved for BEST depot. What was allotted to it was only the FSI of that plot admeasuring 2669.68 sq.mtrs. The matter would have been different if the Adarsh CHS had been allotted the BEST plot itself. Therefore it is not correct to add this FSI to the area of the land wh248 in question and multiply their sum-total by 1.33. However both of them appear to have overlooked this material fact and proceeded to add the FSI of 2669.68 to the area of 3758.82. The correct and proper method would be to first work out the FSI of the land in question which admeasures 3758.82 and then to add to it the additional FSI of the BEST plot. Thus the total permissible FSI of both the plots is as under: 1.Area of the land in question -- 3758.82 sq. mtrs 2. FSI of the plot at Sr. No.1. at the rate of 1.33 -- 4999.23 sq.mtrs. 3. Additional FSI of the Plot of BEST depot. -- 2669.68 sq.mtrs 4. Total of item Nos. 2 & 3. ~ 7668.91 sq.mtrs. (82,449.78 sq.ft) It will thus be seen that both Shri Yamsanwar and the UDD have wrongly worked out the total FSI and the society has consumed excess FSI by 968.15 sq.mtrs. 48.7. Assuming for the sake of argument that both Shri Yamsanwar and the UDD are correct in multiplying the FSI of the BEST plot ie. 2669.68 sq. mtrs. by the ratio of 1.33 = 3550.67 sq. mtrs., the total of area mentioned in item Nos. 2 and 3 in the an \V249 above table would come to 8549.90 sq. mtrs., there is consumption of excess FSI of 87.26 sq. mtrs. FSI FOR ITEMS OF STAIR CASE, LIFT, LOBBY ETC. 49, At the outset it may be made clear that the list of items mentioned in issue no.5 is not exhaustive but illustrative only. This fact is clear from the use of the abbrevation “etc.” The Commission will have therefore to check other items also in order to find whether there has been contravention of FSI rules in respect of podium, recreation ground (RG) and set back area. 49.1. Regulation 51 of the DCR 1967 gives definitions of certain terms including FSI. Clause (vi) of Reg. 51 reads as under: (vi). “Floor Space Index” of a plot or premises is the ratio of the combined gross floor area of all storeys including the area of all walls as well as mezzanine floors of a building on a Plot or premises to the total area of the Plot or premises, The gross floor area of a building shall be calculated as above, excepting that the following shall not be counted towards computation of floor space index.” (a) A basement of cellar and space under a building constructed on stilts and used as a parking space, store- room and air conditioning plant room, used as accessory to the principal use alyaN (b) (q (@ @ 250 Electric cabin or sub-station, watchmen’s booth, pump house, garbage, shafts, space required for location of fire hydrants, electric fittings and water tanks and such other requirements required for the fitting purposes. Projections and accessory buildings as specifically exempted under these rules. Staircase room and/or lift rooms above the top-most storey architectural features, chimneys and elevated tanks of dimensions as permissible under these rules, One unit of sanitary Block consisting of a Bath room and Water closet of standard size as per Building Bye- laws provided for the use of domestic servants engaged on the premises at each floor level, One room measuring 12'-0” x 10’-0” on the ground floor of the Co-operative Housing societies buildings and other multi-storeyed buildings as office-cum-letter box room. However, in case of bigger Co-operative Housing Societies having 12 or more flats area of such office room upto 240 sqft. Means of access to the 15per cent recreation ground in respect of a single holding where only one building is to be constructed. With the approval of the Corporation, the Commissioner may add to alter or amend the above list of exemptions.251 It will thus be seen that the items of stair case, lift, lift lobby, common passage etc. are not exempted from computation of FSI. It therefore means that the FSI consumed by these items has to be taken into consideration while working out the permissible FSI. However, in the case of Adarsh CHS the FSI of these items have been excluded and the MMRDA by charging premium had permitted the FSI consumed on these items as additional FSI. In this connection reference may be made to para 11 of the notings dt. 2-11-2010 Exh. GOM-396 and dt. 9-11-2010 Exh. GOM-399 made by the UDD which specifically high light this position and states that the total FSI of these items is 2814.92 sq.mtrs. For the sake of ready reference para 11 of both the notings which are in Marathi is reproduced as under: “fon, fou-2, feure oat, ai Yr gem eer TUS FF gay VT ATCA aa Ee ae fr amie at oravee aracty UnUvemetet aa tant aad fer Réeiart sae 7 aT fe STAT A Fee ae, TI wa a 2ce¥.92 That. ame“. PODIUM. 49.2 Admittedly the building of Adarsh CHS consists of stilt, plus two podium plus 28 floors. Appendix IX of the draft DCR 1989 and the sanctioned DCR 1991 contain provisions relating a252 to development in large holdings in residential zone. The draft DCR 1989 states as under: “The following facility will be available for residential development undertaken by a single developer as one scheme in a single plot exceeding 20,000 sq. mtrs. in area:- (1) Aplatform or podium may be built at floor 1 and 2 level but not over 7.5 m. from the level of the approach road to join residential building towers (subject to the lighting and_ ventilation requirements being fulfilled) and to cross over public roads adjoining this development. The provision in sanctioned DCR 1991 in this respect is almost identical except the addition of the following words, ‘with the clearance of the Chief Fire Officer’. The word “Podium” is not defined in any of these DCRs but the dictionary meaning of the word is “A small raised platform for giving a speech or conducting an orchestra’, “A small platform on which a person may stand to be seen by an audience, a continuous projecting base or pedestal under a building’. In the context of a high rise building, podium is understood as a “parking place’. 49.3. As observed earlier draft DCR 1989 or sanctioned DCR 1991 are not applicable to the construction of Adarsh CHS. The only DCR which can be applied to the same is the DCR 1967. Consequently, the item of podium also has to be checked with ae253 reference to the provisions of DCR 1967. Admittedly, in the said DCR, there is no provision for construction of podium. However, Reg. 36 deals with parking, loading and unloading spaces and it reads as under: 36. Parking, loading and unloading spaces :- The requirements for parking and loading , unloading spaces shall be as follows:- a) Parking space of 8’ x 18’, shall be provided at the rate of- 1) One for every tenement with carpet area upto 500 sq. ft. ii) One for every two tenements having a carpet area of 500 sq. ftor... ft. but not exceeding 1000 sq.ft iti) Two for every tenement with carpet area exceeding 1000 sq. ft. in Malabar hill, Cumballa Hill, Reclamation, Fort and Colaba area and Reclamation area Backbay, Sasson Dock and nepean Sea Road. (emphasis provided.) However, while approving the building plan submitted by the Adarsh CHS, the MMRDA has not applied the Rules of DCR 1967. It may however be pointed out that there is no mention nor prohibition in the DCR 1967 for construction of podium. At the most the podium can be treated as a separate floor. fe Ww254 49.4, It appears from the letter dt. 16-8-2005 Exh. MMRDA-33 addressed by the Planner Shri Khandare to the Principal Architect of Team One Architects that certain deficiencies were noted in the proposal. The first of which is “The plot under reference falls in CRZ area. According to the Appendix IX of the draft DCR 1989, the podium is not permissible for the plot having area less than 20,000 sq.mtrs. The land in question is obviously much lesser than 20,000 sq. mtrs. Therefore even as per the draft DCR 1989 podium was not permissible in the instant case. The noting dt. 17- 1-2007 Exh. MMRDA-106 is in connection with the “Premium for deficiency in open space due to podium of proposed residential building on plot bearing CS No. 652, Block VI of BBRS area”. This noting inter alia states “In the present case, the area covered under podium is free of FSI under DCR 32(2)(f) which reduces the required marginal open spaces. MC has already approved to allow the podium for the plot u/r. We are in process to grant the permission for podium free from computation of FSI under DCR 32(2)(, by charging the premium as per BMC policy. The premium is calculated as under. In the said noting the deficient area covered under two podiums is worked out at 3967.66 sq. mtrs. The land rate as per stamp duty ready reckoner - 2007 is stated to be Rs. 91,100 per sq. mtr, for FSI 1. The permissible FSI being 1.33, the land rate (Rs. 91,100 x 1.33) is worked at Rs. 1,21,163 per sq. mtr. and 25% thereof is worked at Rs. 30,291 per sq. mtr. The formula to calculate premium is stated to be Area x land rate and it is worked out as under: ALN255, Area of staircase, lifts Land Rate (Rs./sq.m.}_ | Total premium and passages ef 2 1x2 3967.66 30,291/- 12,01,84,389.06 say 12,01,84,390.00 The source of this calculation is stated to be MCGM's circular No. CHE/2245/Acq-C dtd. 23-3-2006. 49.5. The noting dt. 16-5-2007 Exh. MMRDA-93 (para 5) refers to the podium deficiency and it is stated “Considering the above hardship and as directed by the government in UDD (letter dt. 7-6- 2006), the Commissioner has power to relax the concession in dimensions of marginal open spaces under the DCR 64(b). In view of the foregoing, MC may consider grant of relaxation in providing two level 7.5 m. high podium for accommodation of car parking use only by exercising the powers under DCR 64(b) applicable to this development. MC may be also requested to grant the relaxation in the provision of marginal open space resulting due to the car parking podium”. This note was prepared by the Dy. Planner (D) and it was approved by the Planner Shri Khandare and Chief T&CP Division Shri Luktuke. Final approval was given by Shri _256 Chandrashekhar , the then Metropolitan Commissioner on 7-6- 2007. 49.6. As already stated the noting Exh. MMRDA-106 dt, 17-1- 2007 was prepared by the Dy. Planner for calculating premium for the deficiency in open space due to podium This noting states “In the present case, the area covered under podium is free of FSI under DCR 32(2)() which reduces the required marginal open spaces. MC has already approved to allow the podium for the plot u/r. We are in process to grant the permission for podium free from computation of FSI under DCR 32(2)() by charging the Shri Luktuke the Chief T&CP premium as per BMC policy. Division was confronted with the noting Exh. MMRDA-106 in para 43 of his evidence and what he has stated in that respect is as under: “Shown the table Exh. MMRDA-105. It is true that on the basis of the calculations of podium deficiency of Rs. 12,01,84,389.06 is worked out. This deficiency has been worked out under the draft DCR 1989. Shown the note dt. 17-1-2007 Exh. MMRDA-106. I have signed this note. By this note it was proposed to condone the deficiency by charging premium of Rs. 12,01,84,390. I approved the said proposal. After approval of the said proposal, the MC is the highest authority in the MMRDA who can dis-approve it. This proposal was not sent to MC. Since the said proposal was not forwarded to the MC, it remained dormant. I will check and let the Commission know as to why the said proposal was not forwarded to the MC for his approval/disapproval. All proposals where MMRDA a257 charges premium or development charges are forwarded to the MC for his approval.” 49.7, Shri Luktuke was further asked a question as to why the proposal was kept dormant even though the amount of podium deficiency was a large amount to be recovered by MMRDA from the society. The reply given by Shri Luktuke is: “Since the recovery was towards condonation of deficiency of open space due to podium proposed in the building, by the Commissioner under his powers to condone such deficiencies which was resultant of 1989 DCR application, at office level we wanted to confirm it from the point of applicability of Rules. Therefore it was kept dormant." A specific question was put to Shri Luktuke in para 47 of his evidence. The question put to him and the answer given by him are as under: "Q Bynot placing the file before MC for charging premium {for podium deficiency and keeping the file dormant you have caused a oss to MMRDA to the extent of Rs. 12,01,84,390 and benefitted the society to that extent ? Ans, I deny this allegation.” Shri Chandrashekhar, the then Metropolitan Commissioner has stated in para 14 of his evidence as under: “It is correct to say that as MMRDA ultimately applied DCR 1991 while granting further CC and OC to Adarsh CHS, as per UDD's letter dt. 7-6-2006 Exh. MMRDA-72 clarifying the position regarding applicability of DCR uly258 1991, there was no question of charging premium of 12 crores for deficiency in respect of podium to the Adarsh CHS.” 49.8. The above discussion will thus show that two level podium was allowed to be constructed by the Adarsh CHS free from computation of FSI. Thereafter the society was exempted from paying the premium of Rs. 12,01,84,390 which was calculated for the said deficiency. What a colossal loss was caused to the MMRDA and incidentally to the State on account of the arbitrary act of Shri Luktuke ! The explanation given by Shri Luktuke in this respect is not at all satisfactory. He had absolutely no reason to suppress the relevant proposal by not forwarding the same to the Metropolitan Commissioner for his approval/disapproval, Therefore there is reason to believe that Shri Luktuke acted malafide and with dishonest intention to oblige the Adarsh CHS. Anyway the construction of two level podium covering deficient area of 3967.66 sq. mtrs. (vide Exh. MMRDA-106) itself was violation of the DCR 1967 which do not provide for construction of podium. RECREATION GROUND. 50. ‘The provisions regarding recreational ground are contained in Reg. 39 of the DCR 1967 and they are as under:- 39. Layouts or Sub-division, - (a) Layouts or sub- division in residential and commercial zones: Ak259 (i) When the land under development admeasures 3000 sq. yds. or more the owner of the land shall submit a proper layout or sub-division of his entire independent holding. (ii) In any such layout or sub-division 15 percent of the entire holding area shall be reserved for a recreational space which shall be as far as practicable in one place. (iii) No such recreational space shall admeasure less than 450 sq.yds. (iv) The minimum dimension of such recreational space shall in no case be less than 25 ft. and if the average width of such recreational space is less than 80 ft. the length there of shall not exceed 2 ¥% times the average width. (v) No independent plot in a sub-division shall have an area less than 400 sq. yds, And width less than 50 ft. (vi) Every such plot and the recreational space shall have an independent means of access. (vii) For the purpose of FSI the net area of the plot shall only be considered. In case of layout proposals such net area shall be calculated after deducting from the gross area of plot, the area covered by means of access and recreational space.260 In case of plots, the area of which varies from 2550 sq. yds, to 2999 sq. yds. The floor space index shall be allowed only over an area of 2550 sq. yds. (viii) Any such layout or sub-division shall take into account the provisions of the development plan and if the land is effected by any reservation for public purposes the Commissioner may agree to adjust the location of such reservation to suit the development without altering the area of such reservation (ix) In all layouts the parking and loading , unloading spaces as required under the Rules shall be clearly shown on the plan. (x) In the case of layouts or sub-divisions of the areas in excess of 5 acres a separate plot for shopping centre shall be provided which may have an area upto 2 per cent of the area of the plot. (xi) In a layout or sub-division of plot 5 acres or more suitable site for an electric sub-station shall be provided. (N.B. Independent holding means continuous (sic contiguous) piece of land in one ownership.) (b)...261 50.1. Shri Yadav, the senior Planner of MMRDA has stated in para 60 of his evidence that the RG area has to be 15% of the total area of the plot. He has further stated in para 224 of his evidence that as regards the recreation ground, the more stringent DCR is the draft DCR 1989 than the DCR 1967. However, the question is not as to which of the two DCRs is more stringent. The question is which of the two is the proper DCR, the provisions of which can be applied for the purpose of ascertaining whether proper area has been left by the Adarsh CHS for recreation ground. Shri Yadav has stated in para 63 of his evidence that in the instant case, the Adarsh CHS made a provision of RG area on the podium itself. This is surprising and inconsistent with the very concept of recreation ground which is meant for the use of pleasurable activity engaged in for relaxation or enjoyment by the occupants of the building. Moreover, when car parking is provided on the podium, how the occupants of the building can use the same as recreational ground? 50.2. We have on our record, the letter dt. 20-12-2008 Exh. MMRDA-112 addressed by the Chief Engineer (DP) of the MCGM to the Metropolitan Commissioner wherein it is stated that the Secretary of the Adarsh CHS intimated the office that while approving its plans for development, the MMRDA has deducted 15% RG of the plot area. It is further stated in the said letter that te |262 in the BBR Scheme, common RG is already provided and hence 15% deduction for individual plot is not required. This letter further refers to the total area of the plot in the instant case as being 6494.11 sq. mtrs. and on that basis 15% RG is calculated at 479,38 sq. mtrs. The letter further reads, “It appears that the BBR Schemes are treated as layout in which common RG is provided. In the past while allowing development in BBRS Ill, 15% deduction for FSI purpose was not insisted even though individual plot area exceeded 2500 m. However, this being MMRDA Scheme, it is for MMRDA as a Planning Authority to decide whether 15% RG is to be deducted or not while allowing development of the property bearing CS No, 652 Block VI, Colaba Division”. 50.3. Two letters were addressed on behalf of the MMRDA to the UDD seeking its clarification on the issue of deduction of 15% RG. The first is the letter dt. 24-3-2009 Exh, MMRDA-102 addressed by Shri Ratnakar Gaikwad the then Metropolitan Commissioner to Shri T.C. Benjamin Principal Secretary, UDD. This letter is in Marathi and it contains an area statement in respect of the land in question. Therein the recreational ground of 15% has been mentioned as_ being 479.38 sq. mtrs. In this letter a reference has been made to the letter Exh. MMRDA-112 which is referred to above. Shri Gaikwad has also referred to an earlier letter dt. 24-1-1986 addressed by the Public Works Department to the MMRDA in connection with the construction of MLA hostel (Manora) wherein it appears to have been stated that it is not necessary to exclude 15% open space as recreation |263 ground in each plot. Shri Gaikwad has further stated that on the basis of this communication a proposal was drafted and placed before the Executive Committee of the MMRDA which took the following decision on 10-6-1987. It reads, “The committee decided that the benefit of claiming FSI on 15% recreation ground should be allowed to the MLA hostel building as such benefit has been granted in the past in respect of constructions on plots in Backbay reclamation area exceeding 3000 sq. mtrs”. Shri Gaikwad therefore requested the GOM to consult with the MCGM about his assumption that under Reg. 35 ( of DCR 1991) it is not necessary to leave 15% RG in each plot in BBR area. 50.4. On the basis of this letter the UDD put up a noting dt. 4- 4-2009 Exh. GOM-358 wherein it was suggested that it would be proper to consult the MCGM before expressing any opinion in connection with the letter dt. 24-3-2009 addressed by the Metropolitan Commissioner. Shri Thomas Benjamin the then Prin. Secretary, UDD has made his remark in Marathi in his own handwriting and when translated into English, it reads as under: “Taking into consideration that the Manora building being “a building for public use” concession of 15% RG might have been given. However this concession cannot be generally granted to all.” It is seen that another noting dt. 2-6-2009 was again put up before the UDD for reconsideration of the decision taken in Exh. GOM-358 in view of the letter of the society's architect. ‘Thereafter the Prin. Secretary, UDD Shri Benjamin himself put up a fresh noting dt. 2-6-2009 Exh. GOM -360 stating as follows: a264 “2, In fact, there appears to be several precedents to this practice, borne out of a decision of the U.D. taken before 1986. 3. Therefore, if 15% RG area is available in the Scheme, we may agree with the Metropolitan Commissioner to allow the developer not to exclude 15%RG area from FSI computation.” This note is approved by Shri Ashok Chavan the then Chief Minister. On the basis of this note the UDD by its letter dt. 20-7- 2009 Exh. MMRDA-103 informed the Metropolitan Commissioner in Marathi, the English translation of which would read as under: “After considering the decisions taken in previous cases your proposal is approved since in the instant case 15% RG area is available in the Scheme. Accordingly I am directed to inform you to grant approval without excluding 15% RG from the total FSI.” 50.5. 16 months thereafter i.e. on 15-11-2010 Shri Benjamin made following further remarks below the same note. “Thad recommended that if 15% RG is available in the scheme, we might agree with the M.C. not to exclude the said 15% area from FSI computation. It was expected that while issuing orders, after this note was approved, required verification about the availability of the 15% RG area in the a50.6. 265 scheme would be done, This does not seem to have been done. From what I gather, large tracts of land other wise served for RG, is presently occupied by slums, thereby creating a possibility that RG area may not be to the extent of 15%. This, indeed, will vitiate the decision of the Government. Further, it is now borne out that at the time of making the request ot the Government regarding making the 15% RG for FSI computation, MMRDA failed to take into cognizance the fact that 1.33 FSI allowed includes the lift, lobby, staircase area also, which is not as per the 67 DCR applicable in this case. In short, the FSI has been sought from the 15% RG at a time when FSI allowed had already exceeded the allowable limits resulting in the request being faulty, erroneous and unwarranted. It will therefore be necessary to withdraw the clearance given by the government in this regard. Inform the Planning Authority accordingly. Please put up. Prin. Secretary, UD-1." Shri Benjamin (GOM W.No.20) has stated in para 14 of his evidence that verification referred to in this note was required to be done by the Planning Authority but it was not done. He further stated that after the alleged scam in respect of the Adarsh CHS broke out, he had an opportunity to go around a \ i266 the Backbay reclamation and see the conditions there. According to him he saw large tracks of so called RG areas covered by slums. Therefore physical availability of RG to the extent of 15% needed to be verified. In para 15 of his evidence he stated that’ if RG is not physically available due to encroachment, then the same can be recreated by removing the encroachment. The UDD therefore wrote a letter dt. 23-11-2010 Exh. GOM-390 to the Metropolitan Commissioner — seeking information on two points. The first is how much area of 15% of RG was actually available when the letter dt. 24-3-2009 was sent and how much area of the said RG is vacant and how much is occupied by slum and other construction. The second point is that how much FSI was consumed at the time of sending the letter under reference ie. 24-3-2009. The Metropolitan Commissioner by his letter dt. 6-12-2010 Exh. GOM-391 informed the UDD that the lands in the BBRS not being owned by the MMRDA, it has no information as to how much area of 15% RG is vacant and how much area is occupied by slums or other construction. It was further stated that in the said letter that the Collector, Mumbai city was requested to furnish the requisite information. As regards the second point, the MMRDA pointed out that along with the letter dt. 24-3-2009 a copy of the Plan dt. 6-9-2005 while granting development permission up to the plinth level as well as copy of the plan dt. 22-1-2008 while granting development permission for construction of stilt plus two level podium plus 27 upper floors, were attached to the AC f267 letter dt. 24-3-2009 and that both the plans contain information regarding the permissible FSI. Para 16 of the evidence of Shri Benjamin shows that several D.O. letters were addressed to the Collector, Mumbai city seeking the requisite information but no information was given by the Collector. It appears that thereafter the issue regarding RG stood concluded since the GOM agreed with the MMRDA that when 15% RG is provided in the lay out itself, there is no need to deduct 15% RG separately on each plot in the lay out. SET BACK AREA. 51. Reg, 11 of the DCR 1967 contains provisions regarding open space in residential zone. Clause (1) thereof reads as under: “Front open space. - (a) There shall be a minimum open space of 10 ft. in width between the street and the building in the Residential Zones of the city’. Clause (ii) states about distance from central lines of street and it states “No construction work of a building shall be undertaken within - (@. (b) 25 feet from the central line of minor street in the268 city (6) somson @d).. The central line of streets shall be determined by the Commissioner. For the purpose of this Rule, “Minor Street” is that which is not more than % mile in length or is not connected at both ends to public streets which is at least 40 feet in width.” Shri Subodhkumar, Municipal Commissioner (J.W. No.3) has explained the set back area in para 9 of his evidence in the following words. “Set back area means when the Development Plan is prepared, it shows the width of the road that how much wide road is required in that area. Existing road may be less than that. For widening the desired width of the road, the land falling within the road line may belong to a private party. When it comes to development, we ask the party to hand over that portion of land to the Planning Authority. This is called set back area.” 51.1. There is no dispute of the fact that the length of Capt. Prakash Pethe Marg is less than % mile. Therefore the set back area in the instant case is the distance between the central line of Capt. Prakash Pethe Marg and the front wall of the building. wy269 The location of the set back area is shown in the map Exh. GOM- 56-B drawn by the MMRDA. In this map the east-west width of the land in question is mentioned as 42.57 mtrs. Similarly the width of Capt. Prakash Pethe Marg is shown as 18.40 mtrs. including the set back area which is shown by hatched lines. In the plan Exh. MMRDA-124 drawn by the society's architect, the situation of the set back area vis-a-vis the Adarsh building and Capt. Prakash Pethe Marg is clearly seen. Therein the width of the set back area (east-west) is mentioned as 8.21 mtrs. In another plan Exh, IW-59 which is also prepared by the society's architect, the set back area is mentioned as 427 sq. mtrs. It may be noted that at the time when the Commission took site inspection on 13-4-2011 the width of the said road from the compound wall of the society's building upto the wall of Military Petroleum Depot on the east was found to be 10.80 mtrs. The width of the said road at the northern end of the building was 9.70 mtrs. including the footpath of 1.35 mtrs. | However the width of the road on the north side just in front of the BEST depot was found to be 10.50 mtrs. The width of the road in front of the building of Adarsh CHS was found to be 9 mtrs. These facts clearly show that what is shown as set back area is in fact part of Capt. Prakash Pethe Marg itself and not a part of the land in question which was allotted to the Adarsh CHS. 51.2, Shri Yadav has, in para 48 of his evidence, referred to the map Exh. GOM-56-B and stated that in front of the land in question, the width of Capt. Prakahs Pethe Marg is 10 mtrs. He —270 has further stated that as per the directions given by the State Government, the proposed width of the said road has to be 18.4 mtrs. After taking into consideration the proposed width of 18.4 mtrs. of the said road, only the plot of the width of 42.57 mtrs. could have been given to Adarsh CHS. He further stated that the width of 42.57 mtrs. would exclude the set back area. Shri Yadav admitted “It is true that the set back area could not have been given in possession of the Adarsh CHS as the proposed width of Capt. Prakash Pethe Marg was to be kept as 18.4 mtrs, after modification.” While replying to the next question, Shri Yadav admitted that the Adarsh CHS could not have utilized or claimed FSI of the hatched portion shown in the map Exh. GOM-56-B. The Adarsh CHS has not parted with the possession of set back area and yet taken benefit of additional FSI in lieu of the same. This is clear violation of DCR. HEIGHT OF THE BUILDING 52. The Adarsh building consists of a stilt plus two level podium plus 28 floors with a total height of 104.46 mtrs. including the height of lift room and overhead tank. The question to be considered here is whether there has been violation of the provisions of the MRTP Act and DC Rules/Regulations in raising the height of the building to such a level. We have already pointed out that the only DCR which would be applicable to the 4.am Adarsh building is the DCR 1967 since the land in question falls in CRZ -ll area. As per the CRZ notification dt. 19-2-1991 Exh. MMRDA-132 read with the clarification dt. 8-9-1998 Exh. MMRDA-71, further clarification dt. 18-8-2006 Exh. MMRDA-54, and the decision in Suresh Estates case (supra) the existing Local Town & Country Planning Regulations are the DCR 1967. Therefore, the question whether there was any contravention of the Rules in raising the height of the Adarsh building to 104.46 mtrs. will have to be examined with reference to the relevant provisions of 1967 DCR. The society's architect Shri Yamsanwar has stated in para 24 of his evidence; “While designing the height of the building, we did not take into consideration 1967 DCR but the provisions of draft DCR 1989 and DCR 1991.” This is patently incorrect in view of the above mentioned position. Shri Yadav has however stated in para 223 of his evidence as follows: “As regards the height of the building, the draft DCR of 1989 was applied to the Adarsh CHS up to the issuance of first CC and thereafter DCR of 1991 was applied. The DCR 1967 is more stringent than the DCR 1991 so far as the height of the building is concerned.” It may be pointed out that Reg. 31 of DCR 1991 states as under: “The height of the building shall not exceed one and a half times the total of the width of the street on which it abuts and the required front open space. The restrictions of height of the building spelt out in Regulation No. 31(1) shall however, cease to apply in case where the plot front on road having with more than 18.00 mers. and where front marginal open space of 12 AN,272 mtrs. minimum is observed, provided that open spaces on other sides are made available as required from the fire safety point of view.. ” Itwill thus be seen that “stringent of the two” test to which Shri Yadav has made reference in his evidence was ignored so far as the item regarding the height of the Adarsh building is concerned. Moreover, even as per Shri Yadav's evidence two DCRs cannot be applied to the same project. If this is true then there is no justification for applying the provisions of draft DCR 1989 to part of the building and the provisions of DCR 1991 to the remaining part of the same building. These facts only reflect that whichever Rules were convenient for the Adarsh CHS, were applied to its building project. Be that as it may, the correct position would however be that DCR 1967 would be applicable to the Adarsh building. 52.1. Rule 9 of the DCR 1967 contains height provisions of buildings in residential zones and it reads as under: “9, Height provisions in Residential Zones.- () Except with the written permission of the Commissioner, no building shall be erected or raised to a height greater than one and half times the sum of the width of the streets on which abuts and the width of the open space between the street and the building as measured from the level of the centre of the street in front;273 Provided that if the width of the face of the building abutting the street is restricted to one-fourth the width of the site of the building abutting the street, the height of the buildings maybe permitted to two and half time the sum of the width of the street and the width of the open space between the street and the building. (ii) Where the building abuts upon more than one street... (iii) Architectural features, chimneys, elevated tanks and the roofs over staircase ... (iv) For the purpose of sub-rule (i) the width of the street may be the prescribed width of the street, provided the height of the building does not exceed twice the sum of the width of the existing street and the width of the open space between the existing street and the building. (v) The width of the open space between the street and the building shall be calculated by dividing the area of the land between the street and the building by the length of the face of the building. 52.2. The Adarsh building abuts only on one road ie. Capt. Prakash Pethe Marg. Therefore, clause (ii) of Rule 9 reproduced above, will not be applicable to it. However clause (1) of Rule 9 applies to the present case. The permissible height of the Adarsh building would be one and half times of the sum total of tL274 the width of Capt. Prakash Pethe Marg and the front marginal open space from western boundary of the said road upto the eastern wall of the Adarsh building, As per the plan Exh. MMRDA-124 the width of Capt. Prakash Pethe Marg is 18.44 mtrs. including the set back area of 8.21 mtrs. The distance between the front (eastern) wall of the Adarsh building up to the western boundary of the said road is 12.71 mtrs. Therefore one and half times of the sum total of 18.44 mtrs. plus 12.71 mtrs. (set back area of 8.21 plus the front marginal space from the front wall of the building upto main gate i.e. 4.50 mtrs.) comes to 47.40 mtrs. To put this in a mathematical way, it reads:- + Y= . This would be the permissible height of the Adarsh building. It is however to be noted that under Rule 9, the height of a building can be more than the ratio specified in clause (1). But the height in excess of that ratio is permissible only with the written permission of the Commissioner. It is not the case of the Adarsh CHS or the MMRDA that written permission of the Metropolitan Commissioner or the Municipal Commissioner was obtained for raising the height of its building above 47.40 mtrs. 52.3. The proposal for construction of residential building of the Adarsh CHS was submitted by its architect Shri Yamsanwar as per the letter dt. 21-6-2005 (Exh. AS-191). Shri Yamsanwar has stated in para 45 of his evidence that the plan of the building for a height of 54.40 mtrs. was submitted. In the letter dt. 1-6-2005 addressed by him to the Executive Director, Air AN275 Port Authority of India, Mumbai for issue of No Objection Certificate, it was stated that the height of the proposed building was 98.60 mtrs. Any way the first Commencement Certificate Exh. AS-213 issued by the MMRDA on 6-9-2005 states that permission was granted under section 45 of the MRTP Act to the “Applicant Adarsh Co-operative Housing Society Limited upto plinth level for development of the proposed residential building which consists of stilt plus 14 upper floors on land bearing CS No. 652 of Block VI of BBRS, Colaba , Mumbai.” This certificate reiterates that it was granted upto plinth level for residential building subject to the conditions enumerated therein. The second Commencement Certificate is Exh. AS-217 dt. 11-6-2007 is for construction of stilt plus two level podium plus four upper floors on the same land. It further mentions that the applicant society has made part payment of the premium amount of Rs. 4,86,92,577. It further states that Commencement Certificate for construction of above fourth floor will be issued on receipt of the balance amount of premium for stair case, lift, lobby etc. The third Commencement Certificate is Exh.AS-234 dt. 22-1-2008 under which permission was granted for proposed development of the residential building consisting of stilt plus two level podium plus 27 upper floors subject to the conditions mentioned therein. The fourth and last Commencement Certificate is Exh.AS-254 colly. dt. 4-8-2010 as per which permission was granted for the proposed additional 28" floor AN276 and amendments in other four plans of the residential building subject to the conditions mentioned therein. 52.4. Para 61 of the evidence of Shri Yamsanwar shows that when the first application for construction of the building was made, it was with the FSI of plot A(land in question) but even at that time the likelihood of grant of additional FSI was taken into consideration. It appears that with the grant of additional FSI of 2669.68 sq. mtrs. of BEST plot as also the rise in the number of membership of the society, the Adarsh building went up high and high. REFERENCE TO HIGH RISE COMMITTEE 52.5. At this stage reference may be made to the GR dt. 28-7- 2004 issued by the government in UDD under which a technical committee was constituted for scrutiny of development proposals of high rise buildings. The said GR is at Exh. IW-20 and the introductory paragraph of the said GR spells out the reasons and objects of forming such a committee. It states, “High rise buildings and their impact on infrastructure and environment has been attracting public attention for the past sometime. It was observed that coming up of indiscriminate high rise structures may cause adverse effect on the structural stability of adjoining buildings due to sub-soil conditions, environmental degradation etc. With a view to examine the overall effect of high rise buildings in Mumbai ........ the government constituted a Study Group under the Chairmanship of Chief Secretary...... The Study WY27 Group on 29% May 2003 has submitted its report to the Government, which has been considered by the Government Among other recommendations, the Study Group has recommended that a Technical Committee be appointed to scrutinize Development Proposals of all the buildings having height more than 70 mtrs, and that experts in the field of structural engineering, soil mechanics, _ architecture, environmental engineering be included among the members of the Technical Committee. In the circumstances government is pleased to appoint a Technical Committee for scrutiny of proposals of high rise buildings having height more than 70 mers.” 52.6. By the same notification the government appointed a Technical Committee of six members including Shri Justice Ashok Agarwal, former Chief Justice of Tamil Nadu as the Chairman. The terms of reference of the said Committee state that it shall be of advisory nature and it will advise the Municipal Commissioner regarding the feasibility of development proposals that might be referred to it by the Commissioner. The second term is that it will be open for the Commissioner to overrule the recommendations of the Committee after giving a proper and reasonable justification in writing. Such powers will not be delegated to any sub-ordinate officer. The third term of reference states that in specific cases, if the Chairman desires, any expert from other fields may be invited for the meeting of the Committee. The tenure of the Committee is stated to be for three years and it will be reconstituted thereafter. AL278 52.7. Admittedly the case of the Adarsh CHS was referred to the high rise committee for its advice since the height of the building exceeded 70 mtrs. It appears that by the time reference was made to the High rise Committee the construction of the 27 floor of the Adarsh building with a height of 97.60 mtrs, was completed. Hence the proposal was made to the said Committee for approving that height. The minutes of the 17 meeting of the High rise Committee held on 20-7-2007 Exh. IW-16 shows that the proposal in respect of the Adarsh CHS was proposal no. 57 and the same was approved by the Hon. Chairman in view of the opinion of the members. 52.8. In page 5 of the affidavit of Dr. Jairaj Phatak, (IW. No.5) the then Municipal Commissioner has affirmed that the office bearers of the Adarsh CHS met him with the architect and requested that since the increased height of one floor was within the limit of the height scrutinized by the High rise Committee, permission for regularizing the additional constructed 28" floor without clearance from High rise Committee should be granted. It appears that in this respect there was a meeting held by Shri Phatak which was attended by Shri Kanhaiyalal Gidwani with other members of the society, structural consultant Shri Umesh Kamat and architect Shri Parish Kapse of M/s Team One Architects and others. The note dt. 20-10-2009 Exh. AS-284 which was put up by the Chief Engineer DP, mentions that the High rise Committee had already scrutinized the proposal for the height of the building of 103.40 mtrs. but as the |279 architectural plans were submitted for the height of 97.60 mtrs., the NOC dt. 1-9-2007 was issued accordingly mentioning the height of the building of 97.60 mtrs. only. In the said meeting it was pointed out that one more floor was already constructed, thereby increasing the height of the building to 100.70 mtrs. which was within the limit of the height scrutinized by the High rise Committee The note further states that the Committee Members of the Adarsh CHS and the architect therefore requested the Municipal Commissioner “To grant permission to regularize the constructed floor without insisting clearance from High rise Committee’. _ The said note further shows that the Chief Engineer also opined that there was no necessity to obtain fresh NOC from the High rise Committee. Dr. Phatak accepted this proposal by making following endorsement in his own handwriting below the note, “In view of the portion marked ‘X’ on page no.1, there is no need to obtain fresh N.0.C. from High rise Committee. However the appropriate authority’s ie. MMRDA’s approval may be obtained’. The portion marked by letter ‘X’ in the said note reads, “Now it is proposed for additional one more floor which was already constructed, thereby increasing the height by 100.70 mtrs. which is within the limit of the height scrutinized by the High rise Committee’. 52.9. In para 42 of his evidence Dr. Phatak has stated that the application for regularization of constructed floor which was made to him was not in writing but oral. He has also stated that the society did not request for referring the matter back to the AL280 High rise Committee but on the contrary it was requested not to refer the matter to the High rise Committee since it would take long time and the height was already scrutinized. In para 38 of his evidence the following question was put up to Dr. Phatak and the following answer was given by him: "Q. Is it correct that the GR gives the Commissioner a discretion to accept the recommendation or reject the recommendation of the High rise Committee but does not give discretion to the Commissioner to decide whether to refer the matter to the High rise Committee or not ? Ans, The power to overrule envisages the power to decide whether the revised plan is within the already scrutinized height or not.” The version of Dr. Phatak in this respect is contradicted by Shri Subodhkumar IW. No.3 in para 10 of his evidence in the following words: “ In view of the circular the applicant has to make the application to the High rise Committee and the Commissioner cannot waive it, but the Commissioner may differ on the recommendation of the High rise Committee. The Commissioner has to have the recommendation of the High rise Committee before him before he takes any decision. The Municipal Commissioner does not have a discretionary power not to refer the matter to the High rise Committee.” 52.10. After a careful consideration, the Commission does not approve the stand taken by Dr. Phatak and approves the opinion A\V281 expressed by Shri Subodhkumar. In the first instance, Dr. Phatak should not have entertained the oral request made on behalf of the society for regularizing the construction of 28% floor of the Adarsh building. He should have insisted on the society to file an application in writing to that effect. Secondly, it was not proper on his part to hold a meeting dt. 14-10-2009 in his chamber to consider the society's request. Such a conduct is generally viewed with suspicion. Besides it gives wrong signals. Thirdly, there was no reason for Dr. Phatak to worry about the delay which would have probably caused by making a fresh reference to the High rise Committee unless he had personal interest in the society getting the NOC as early as possible. It is in this context that the fact of his son Shri Kanishk being a member of the Adarsh CHS, becomes very much relevant. It may further be noted that Dr. Phatak could have disagreed or overruled the advice given by the High rise Committee in case it had refused to approve the proposal for the additional height of 28" floor. 52.11, There is yet another reason and it is condition no.2 incorporated in all the Commencement Certificates. For instance, the CC Exh, AS-213 contains the following condition: "2. Any development, carried out in contravention of or in advance of the Commencement Certificate is liable to be treated as unauthorized and may be proceeded against under section 53 or as the case may be under section 54 of the MR&TP Act, 1966. The applicant and/or his agents in such cases may be proceeded \282 against under section 52 of the MR&TP Act, 1966, To carry out an unauthorized development is treated as a cognizable offence and is punishable with imprisonment apart from fine.” However, despite this specific condition neither the MMRDA nor the MCGM ever took any objection for the society's constructing 28% floor unauthorizedly. This material aspect was totally ignored by Dr. Phatak when he recommended approval of the construction of 28" floor made unauthorisedly by the Adarsh CHS. It will thus be seen that the conduct of Dr. Phatak in this respect does not appear to be fair and proper. 52.12, Anyway the approval given by the High rise Committee for a height of 97.60 mtrs, as well as the approval given by Dr. Phatak for regularizing the construction of 28" floor need not detain us any more for the simple reason that not referring the matter again to the High rise Committee in this respect, was not justified. As pointed out above, the permissible height of the Adarsh building could not have exceeded 47.40 mtrs. as per the provisions of the DCR 1967. Without the written permission of the Commissioner the Adarsh building could not have been raised to a height more than 47.40 mtrs. However, no such application seeking permission of the Commissioner was ever made by the Adarsh CHS or its architect. Moreover, neither the MCGM nor the MMRDA bothered to go into the question of the height of Adarsh building with reference to the appropriate DCR. \ a283 As pointed out earlier from the evidence of Shri Yadav for part of the height draft DCR 1989 were applied and for the remaining height DCR 1991 were applied. In our opinion if the MMRDA which is the Planning Authority had applied the right DCR ie. DCR 1967 then there was no occasion for referring the matter to the High rise Committee. There is nothing on record to show that the High rise Committee was apprised of the fact that the land in question falls in CRZ-II area and the construction of residential building thereon is governed by the provisions of 1967 DCR. The High rise Committee also seems to be unaware of the correct position in this respect, particularly the CRZ notification dt. 19-2-1991 together with subsequent clarifications given and the decision of the Supreme Court in the case of Suresh Estates. Therefore, the approval given by the High rise Committee approving the proposal of the height of the Adarsh building of 97.60 mtrs. does not appear to be proper and correct in view of the position stated above. 52.13. Consequently, it must be observed that there has been a clear violation of the DCR 1967 in approving the height of the ‘Adarsh building above 47.40 mtrs. a53. 284 Issue No. 8:-. Whether the land allotted to the Society, falls under the Coastal Regulation Zone (CRZ) and if, so, in which category ?. Clause (1) of the notification dt. 19-2-1991 Exh. MMRDA-35 issued by the MoEF under section 3(1) and 3(2) (v) of the Environment (Protection) Act, 1986 defines Coastal Regulation Zone (CRZ) in the following words. “Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone.. We do not have any document on record to show the exact distance between the land in question and the sea shore on the western side. However, in the notes of site inspection Exh. 3 it is mentioned that from the western side of the society building, there is open sea which is at a distance of about 1000 metres. There is in fact no dispute at all that the land in question falls under CRZ -II category. There are copious references found in several documents brought on the record of the Commission as Mo \,285, evidence indicating this fact. It is not possible nor necessary to refer to each of these documents and it will suffice to refer to two documents only ie. LOI dt. 18-1-2003 Exh. GOM- 4-A and the LOA dt. 9-7-2004 Exh. GOM-5-A which state that the land in question falls in CRZ category. Clause (7) of the LOI Exh. GOM- 4-A specifically mentions that the land in question falls in CRZ-I] category. This position is admitted by all the parties before the Commission. Therefore there is no difficulty in recording a finding accordingly. Issue No. 9 :- Whether requisite Environmental permissions and clearances had been obtained by the Society from the State Government, Central Government, or prescribed authorities under Environment (Protection) Act, 1986 and Rules framed under the Act as well as Notifications issued there-under? ENVIRONMENT (PROTECTION) ACT, 1986, THE RULES FRAMED THEREUNDER AND THE NOTIFICATION DT. 19-2-1991 ISSUED BY THE MOEF. 54. The Environment (Protection) Act, 1986 (hereinafter referred to as the Act 1986) was enacted to provide for protection and improvement of environment and for matters ny286 connected thereto. Section 3 of the said Act states about the power of the Central Government to take measures to protect and improve environment. Under sub-section (1) of section 3 the Central Government has the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. Sub section (2) of section 3 enumerates 14 matters with respect to which the Central Government can take measures. However, the list of 14 matters enumerated in sub-section (2) of section 3 of the Act 1986 is not exhaustive but only illustrative as is clear from the words “In particular, and without prejudice to the generality of the provisions of sub-section (1) such measures may include Section 6 and 25 of the Act, 1986 state about the power of the Central Government to make Rules for carrying out the purposes of the Act. Accordingly, the Central Government has framed the Environment (Protection) Rules, 1986 (hereinafter called as the Rules, 1986) which came into force on 19-11-1986. 54.1. Pursuant to the above mentioned powers under the Act 1986, the Central Government in the Ministry of Environment & Forests (MoEF) has issued a notification dt. 19-2-1991 which is at Exh. MMRDA-35. It is seen from the said notification that it is issued under section 3(1) and (2) (v) of the Act 1986 and Rule 5(3)(d) of the Rules 1986, Clause (1) of the said notification States that a notification under section 3(1) and (2)(v) of the Act 1986 was issued on 15-12-1990 inviting objections against the 44,287 declaration of Coastal stretches as CRZ and imposing restrictions on industries, operations and processes in the CRZ. It further states that all objections received were duly considered by the government. It further reads, “Now, therefore, in the exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) utp 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone and imposes with effect from the date of this Notification, the following restrictions on the setting up and expansion of industries, operations or processes etc. in the said Coastal Regulation Zone (CRZ). For purposes of this Notification, the High Tide Line (HTL) will be defined as the line up to which the highest high tide reaches at spring tides.” 54,2. Para 2 of the said notification enumerates 13 activities which are prohibited within the CRZ. However they do not specifically include the activity of construction of houses/buildings in the CRZ. Para 3 of the said notification deals with the regulation of permissible activities and states that all other activities, except those prohibited in para 2 will be regulated. Clause (1) of the said para states, AL \288 “Clearance shall be given for any activity within the Coastal Regulation Zone only if it requires water front and foreshore facilities”. Clause (2) of the said para reads as under: “The following activities. will require environmental clearance from the Ministry of Environment and Forests, Government of India namely, (i) Construction activities related to Defence requirements for which foreshore facilities are essential (ii) Operational constructions for ports and harbours and light houses requiring water frontage. (iti) Thermal power plants. (iv) All other activities with investment exceeding rupees five crores except those activities which are to be regulated by the concerned authorities at the State/Union Territory level in accordance with the provisions of paragraph 6, sub-paragraph (2) of Annexure | of the notification”. (3) (‘The coastal States and Union Territory Administrations shall prepare, within a period of one year ‘from the date of this Notification. Coastal Zone Management Plans identifying and classifying the CRZ areas within their289 respective territories in accordance with the guidelines given in Annexures-I and II of the Notification and obtain approval (with or without modifications) of the Central Government in the Ministry of Environment & Forests. (ii) Within the frame work of such approved plans, all development and activities within the CRZ other than those covered in para 2 and para 3(2) above shall be regulated by the State Government, Union Territory Administration or the local authority as the case may be in accordance with the guidelines given in Annexures -I and I of the Notification.” (iii)... 54.3. Annexure-I to the said notification states about Coastal area , classification and development Regulations. Para 6 (1) of the Annexure reads as under: “ For regulating development activities, the coastal stretches within 500 meters of High Tide Line of the landward side are classified into four categories, namely; Category (1) - CRZ-1 Category -Il (CRZ-I1) The area that have already been developed upto or close to the shore-line. For this purpose ‘developed area’ is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains, a290 Category Ill (CRZ-MD.. Category-IV (CRZ-1V) ... Para 6(2) lays down norms for regulation of activities and it reads, “The development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities at the State/Union Territory level, in accordance with the following norms.” CRZ-1 CRZ-Il- Building shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) or on the landward side of existing authorized structures. Building permitted on the landward side of the existing and proposed roads/existing authorized structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio. Provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads proposed in the approved Coastal Zone Management Plan) which are constructed on the seaward side of the existing road.291, Provided further that the above restrictions on construction, based on existing roads/authorized structures, roads/authorized structures, roads proposed in the approved Coastal Zone Management Plans, new roads shall not apply to the housing schemes of State Urban Development Authorities implemented in phases for which construction activity was commenced prior to 19* February 1991 in at least one phase and all relevant approvals from State/Local Authorities were obtained prior to 19 February 1991; in all such cases specific approval of the Ministry of Environment and Forests would be necessary on a case to case basis.” COASTAL ZONE MANAGEMENT PLAN AND COASTAL ZONE MANAGEMENT AUTHORITY. 54.4, In view of the direction contained in para 3 (i) of the Annexure to the notification 1991, the GOM submitted its Coastal Zone Management Plan (CZMP) Exh. GOM 34-B to the MoEF for its approval Dr. Senthil Vel (C.W.No.10) who is the Director of MoEF has stated in para 7 of his evidence that CZMP of Maharashtra and the rest of the country came into operation in 1996 However, since there were some errors, a committee was formed under the Chairmanship of the Chief Secretary of GOM to submit its recommendation to MoEF in 1998 and the MoEF approved the revised CZMP for Greater Mumbai in 2000. This is also clear from the letter of Dr. Senthil Vel dt. 19-1-2000 Exh. MMRDA-49 that292 “approval is hereby accorded to the proposed categorization of Coastal areas in Greater Mumbai subject to the following: velopmen. Spaces in rea FSI upto 15% shall be allowed in respect of parks, playgrounds and other open spaces falling in CRZ-II which were required to be classified as CRZ-II as per the approved Coastal Zone Management Plan. However, use of such vacant land shall be restricted to construction of civic amenities, stadium, gymnasium, etc, meant for recreational/sports related activities. Residential/commercial use of such open space shall not be permissible.” 54.5. As already stated under section 3(1) and (2) of the Act 1986 the Central Government has power to take such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment. Sub section 3 of section 3 of the said Act further empowers the Central Government “To constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub section 2 as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such x, \-293 authority or authorities may exercise the powers or perform the functions to take the measures so mentioned in the order as if such authority or authorities had been empowered by this act to exercise those powers or perform those functions and take such measures.” Accordingly the Central Government by its order dt. 26-11-1998 Exh. MMRDA-52 constituted MCZMA for a period of two years with effect from the date of the publication of the order in the official gazette. | There were seven members including the Secretary of the Department of Environment, GOM who was the Chairman of the said Committee. Besides the Principal Secretaries, R&FD and UDD were amongst the members of the said Committee. This order enumerates several powers given to the MCZMA. Clause II (i) of the said order states that the MCZMA shall have the power of “Examination of proposals for changes/modifications in classification of Coastal Regulation Zone areas and in the Coastal Zone Management Plan (CZMP), received from the Maharashtra State Government and making specific recommendations to the National Coastal Zone Management Authority therefor.” 54.6. Clause VIII of the said order reads as under: “The Authority shall examine all projects proposed in Coastal Regulation Zone areas and give their recommendations before the project proposals are referred to the Central Government or the agencies who have been entrusted to clear such projects under the notification, of the Government of India in the ministry of AY294 Environment and Forests vide number S.0, 144(E) dated 19% February 1991." The above quoted two clauses of the order dt. 4- 1-2003 Exh. MMRDA-S3 are relevant for our discussion. The power given under clause I(1) contemplates examination of proposals for changes or modifications in classification of CRZ area, whereas the power given under clause VIII contemplates examination of all projects proposed in CRZ area, and give recommendations before the project proposals are referred to Central Government. It is important to bear in mind that MCZMA is not a State authority or an authority under the control of the State Government. The provisions of section 3(3) of the Act 1986 make it clear that MCZMA is an authority appointed by the Central Government for the purpose of exercising or performing such powers and functions of the Central Government under the Act 1986 and for taking measures with respect to the matters referred to it. The latter part of section 3(3) of the Act makes it clear that MCZMA is subject to supervision and control of the Central Government. 54.7. The tenure of MCZMA was to be for a period of two years from the date of publication or the order dt. 26-11-1998. However, it is not known as to when the said order was published in the official gazette. Presuming that the said order might have been published in the gazette within a month, it will be seen that its tenure came to an end by the end of the year 2000, It is also not known whether the said authority was given further J295 extension, But that is not very much relevant for this discussion. Thereafter on 4-1-2002 the MoEF again constituted MCZMA of eight members including the Chairman for a period of three years with effect from the date of the publication of the order in the official gazette (vide Exh. MMRDA-53). It is therefore obvious that the reconstituted MCZMA was functioning at least till 4-1- 2005 ie. for a period of three years tenure as specified in the order. 54.8. Dr. Senthil Vel has, however stated in para 12 of his evidence that on 22-4-2003 the MoEF withdrew the delegated powers of granting CRZ clearance in CRZ-II area from the State Government. This is clearly a misstatement on the part of Dr. Senthil Vel. If we take into consideration the provisions of the Act 1986 as well as the Notification dt. 19-2-1991, it becomes clear that the State Government has no role to play in respect of the matters contemplated by the Act and the said Notification. At this stage, it is necessary to point out that as per the letter dt. 27-9-1996 Exh. C-24 addressed by the MoEF to the Chief Secretary of Maharashtra, certain duties are cast upon the GOM in connection with CZMP. One of such duties, which is stated in Clause (x) of Para A of the said letter, is to the effect that the GOM shall ensure that all development and activities in CRZ areas take place within the frame work of the approved CZMP and violations shall be subject to the provisions of the Act 1986. Clause (xvii) of the same para makes it clear “Government of Maharashtra will not make any change in the approved ay296 categorization of CRZ areas without prior approval of Ministry of Environment and Forests, Government of India”. 54.9. Both the Act 1986 and the Notification 1991 do not spell out any power given to the State Government in this behalf, It is therefore not known on what basis Dr. Senthil Vel made this incorrect statement. There is no notification or any document on record to show specifically and positively that the powers of the State Government to grant clearance were withdrawn on 22-4- 2003 as stated by Dr. Senthil Vel. In this connection reference may be made to the notification dt. 22-4-2003 Exh. MMRDA-36 by which amendment was made in para 3, sub para 2 of clause (iv) of the notification 1991 which is to the following effect: “(iv) All other activities with investment of five crore rupees or more. Provided that activities involving investment of less than five crore rupees shall be regulated by the concerned authorities at the State or Union territory level in accordance with the provision of sub paragraph (2) of paragraph 6 of Annexure-l of this notification.” It may be pointed out that the Jt. Director of the MoEF by his letter dt, 27-12-1996 Exh, C-23 inter alia clarified to all the Chief Secretaries of different States including Maharashtra as under: “In this regard it is clarified that the concerned authorities at the State/UT level can accord clearance for construction LS4 297 activities in the CRZ-Il areas approved in the Coastal Zone Management Plans, in accordance with the provisions under Clause 6(2) of CRZ Notification, 1991, even though the investment cost exceeds Rs. 5 crores.” If we read the notification dt. 22-4-2003 Exh. MMRDA-36 in the light of the letter dt. 18-8-2006 Exh. MMRDA-54 sent by the MoEF, then it explains the above mentioned statement made by Dr. Senthil Vel in para 12 of his evidence. What he means thereby is probably that by the notification Exh. MMRDA-36 dt. 22-4-2003 the power of the State authority ie. ee respect of activities involving investment of Rs. five crores 0, more was withdrawn by necessary implication. But it cannot be ignored that the power to deal with activities involving investment of less than Rs. five crores continued to be with the MCZMA. In view of this position the statement made by Dr. Senthil Vel (C.W.No.10) in para 12 of his evidence that the MoEF withdrew the delegated powers of granting CRZ clearance in CRZ-II area from the State Government clearly appears to be a wrong statement. 54.10. Secondly, it must be borne in mind that MCZMA is only a recommendatory authority for the grant of CRZ clearances in the matter which are referred to the MoEF. This is clear from what Dr. Senthil Vel has stated in para 4 of his evidence which is to the effect, “After the notification of the year 2002 under which MCZMA was constituted, the applicant had to submit an application along with the recommendation of MCZMA.” Any way, the above298 mentioned statement of Dr. Senthil Vel need not detain us any more for the simple reason that our main concern is — what happened in respect of the alleged CRZ clearance to Adarsh CHS prior to 22-4-2003. PLEA OF ADARSH CHS THAT ACT 1986 AND NOTIFICATION 1991 DO NOT APPLY TO IT ----- WHETHER CORRECT ? 54.11. After having referred to the relevant provisions of the Act 1986 as well as the Notification 1991, it will be proper to deal with the arguments advanced on behalf of the Adarsh CHS. The first. blasting submission made by Shri Manish Desai, the Id. Counsel for the Adarsh CHS is that the Act 1986 and notification 1991 do not apply to construction activity but they apply only to industries. For this purpose, Shri Desai drew our attention to the provisions of section 3 of the Act 1986 as well as Rule 5 of the Rules 1986. It is true that section 3(2) of the Act 1986 speaks of the power of the Central Government to take measures for protecting and improving the quality of environment. Clause (v) of section 3(2) of the Act 1986 speaks of restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out. Section 5 of the Act 1986 speaks about prohibition and restriction on the location of industries and the carrying on processes and operations in different areas. Clause (3)(d) of section 5 enables the Central Government to impose prohibition or restrictions on L \,299 location of such industries and the carrying on of any process or operation in an area. 54.12. Shri Desai emphasized and pointed out that the notification 1991 is issued under section 3(1) and (2)(v) of the Act 1986 and Rule 5 (3)(d) of the Rules 1986. At the first blush, the argument of Shri Desai appears to be attractive but on a careful perusal of the notification 1991 it becomes clear that it also deals with other activities also, including construction activities. This notification, in the first instance, prohibits industrial activities in CRZ which are specified in para 2 thereof. However, it is pertinent to note that para 3 of the said notification speaks of regulation of permissible activities and one of such activities, as stated in para 3 (2)(iv) of the said notification is, “All other activities with investment exceeding Rs. five crores”. The words “All other activities" include those activities other than industries. Such other activities would therefore include construction activity. Itis obvious that activity of construction of building in CRZ is regulated by the notification 1991. Para 6(2) of the notification 1991 states that development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities at the State/Union Territory level in accordance with the norms laid in the said para. Therefore, even though the notification 1991 makes reference to section 3(2)(v) of the Act 1986, it also purports to have been issued under Clause (xiv) of section 3(2) of the Act which enables the Central Government to take measures on “Such other matters as the Ly300 Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.” Otherwise there was no reason to specify in the notification 1991 regulation of “All other activities with investment exceeding Rs. five crores.” Consequently, it must be said that a housing project in CRZ area is covered by the norms laid down by the notification 1991. For these reasons we are unable to accept the submission made by Shri Desai. 54.13. The second submission of Shri Desai is to the effect that what is sought to be regulated under para 3 of the notification 1991 are the activities which require water front and/or foreshore facilities. He pointed out that the construction project of Adarsh CHS did not require water front and/or foreshore facility and therefore according to him it falls outside the scope of para 3 of the notification 1991. We fail to appreciate this submission for the simple reason that “All other activities” stated in clause (iv) of para 3 of the notification 1991 do not require water front and foreshore facility and there is no reason as to why the construction activity in respect of the building of Adarsh CHS would not be covered under Clause (iv) of para 2 of the notification 1991, if the investment in the said project exceeds Rs. five crores. We therefore, reject the second submission also made by Shri Desai. LE301 WHETHER CRZ CLEARANCE / PERMISSION WAS REQUIRED BY ADARSH CHS 54,14. According to Shri Manish Desai no CRZ clearance/ permission was required to be obtained by the Adarsh CHS. This contention will have to be rejected at the inception itself for the simple reason that para 3(2) of the notification 1991 enumerates the activities which require environment clearance from the Ministry of Environment & Forests, Government of India. As seen above, one of such activities is the activity of construction with investment exceeding Rs. five crores. Moreover, para 4 of the said notification states that the “Ministry of Environment & Forests and the government of State or Union Territory of such other authorities at the State or Union territory levels, as may be designated for this purpose shall be responsible for monitoring and enforcement of the provisions of this notification within their respective jurisdictions’, Para 6(2) of the said notification states that the development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities at the State /Union territory level. 54.15. Exh. C-23 which is a clarificatory letter dt. 27-12-1996 issued on behalf of the MoEF relates to permission to be given for construction activities in CRZ-II areas approved in the CZMP of States/UTs. The clarification given in this letter to which reference is already made above, is to the effect that MCZMA can accord clearance for construction activities in CRZ-II areas a302 approved in the CZMP in accordance with the provisions of para 6(2) of the notification 1991. There is yet another letter which is dt. 27-9-1996 Exh. C-24 addressed by the MoEF to the Chief Secretary of Maharashtra on the subject of CZMP of Maharashtra. Approval to the CZMP is granted as per this letter subject to certain conditions enumerated in para A and B. Clause (iii) of Para A states that permissible activities shall be regulated in accordance with section 3 and follow the norms of regulation as indicated in section 6(2) of the CRZ notification 1991. Clause (x) of para A of this letter casts a duty on the GOM to ensure that all development and activities in CRZ areas take place within the frame work of the approved CZMP and violations shall be subject to the provisions of the Act 1986 and other relevant laws. 54.16. There is one more reason which requires the Adarsh CHS to obtain CRZ clearance and it is the incorporation of specific conditions in the LOI and LOA (Exh. GOM 4-A and 5-A respectively) to the effect that since the land in question falls in CRZ-II category, it will be necessary (for the society) to obtain clearance /permission of the MoEF before making any construction thereon. Moreover, in every C.C. issued by the MCGM and MMRDA requires the clearance from MoEF. There is nothing in any of the affidavits or documents filed on behalf of the Adarsh CHS contending that the said condition is redundant and not binding on it. Moreover, in the undertaking dt. nil which was forwarded to the Collector with a forwarding letter dt. 3-6-2006 Exh, AS-112 the Secretary Shri R.C. Thakur of the Adarsh CHS303 undertook in clause 3, “To avail necessary permission from the Central Government's Environment Department for the construction on the said land’. _ In para 6 of his affidavit, Dr. B.N. Patil (C.W. No.12) who was Member Secretary of MCZMA has affirmed “1 say that Adarsh Co-operative Housing Society has not sought or obtained any permission /recommendation from Maharashtra Coastal Zone Management Authority and Environment Department from CRZ point of view". This affirmation has not been controverted on behalf of the Adarsh CHS during the cross examination of Dr. B.N. Patil. It therefore appears that the Adarsh CHS,in order to justify its failure to obtain CRZ clearance/permission has tried to contend, in vain, that no such permission was at all necessary. 54.17, Para 3 (2) of the notification 1991 enumerates the activities which require environment clearance from the MoEF. Sub clause (v) of clause 2 of para 3 refers to “All other activities with investment of five crore rupees or more”. Indisputably the cost of the construction project of the Adarsh CHS is much more than Rs. five crore. The value of the land in question itself is more than Rs. 10.19 crore. In addition , the value of the additional FSI of BEST plot is of more than Rs. 6.14 crore. The Adarsh building consists of 31 storeys consisting of a stilt, two podiums, two commercial spaces plus 26 upper floors. There are 26 flats each of the size of 1076 sq. ft. and 78 flats each of 650 sq. ft, in all 104 flats in the entire building. For each flat of 1076 sq, ft. the price fixed was more than Rs, 80 lacs and for each flat of 650 sq. ft. the wy304 price fixed was more than Rs. 60 lacs. All this data therefore shows that the investment in the Adarsh project was many times more than Rs. five crores. Therefore, it was obligatory on the part of the Adarsh CHS to obtain the CRZ clearance. WHETHER THE ADARSH CHS APPLIED FOR CRZ CLEARANCE / PERMISSION ? 54.18. After having considered the relevant provisions in the Act 1986 and the Notification 1991, it is found that for making construction upon the land in question, it was necessary for the Adarsh CHS to obtain clearance/permission from the MoEF with the recommendation of MCZMA since the land in question falls in CRZ-II, The Adarsh CHS was fully aware that MoEF clearance was a much before proceeding with the construction work. But they avoided to approach the MoEF through MCZMA. This according to us was a deliberate omission on the part of the Adarsh CHS. It is not the case of the Adarsh CHS that any application for such permission was ever made by it. In none of the affidavits filed on behalf of the Adarsh CHS, particularly the affidavits of the Chief Promoter Shri R.C. Thakur, the Co-ordinator Shri Kanhaiyalal Gidwani and the Chairman Brig. Wanhoo, there is a whisper of having made such an application. So also their evidence before the Commission in this respect is totally silent. In para 30 of his evidence , Dr. Senthil Vel stated that the permission of the MoEF305 is required to be sought for by the proponent of the project and not by the UDD. In para 46 he explained that the person who is in charge of undertaking the project is called the project proponent. Earlier in para 29 while replying to a question put on behalf of the GOM, Dr. Senthil Vel admitted that it was correct that the applicant cannot apply for CRZ clearance in CRZ-II area to MoEF unless and until the land is allotted and the applicant is in possession of the land for which clearance is sought. We have pointed out these facts only with a view to counter the submission of the Adarsh CHS that the letter dt. 11-3-2003 Exh. AS-86 addressed by Dr. Senthil Vel (C.W. No.10) to Shri P.V. Deshmukh, Dy. Secretary, UDD (I.W. No.9) read with the letter dt. 15-3-2003 Exh. MMRDA-47 addressed by Shri Deshmukh to the Chief Engineer, (DP) MCGM amounts to the CRZ clearance. WHETHER THE LETTERS EXH. AS-86 AND EXH. MMRDA-47 AMOUNT TO CRZ CLEARANCE ? 54.19. Before turning to the above mentioned two letters, it is necessary to refer to some correspondence with the MoEF by the UDD preceding the said two letters. Shri P.V.Deshmukh, Dy. Secretary, UDD (I.W. No.9) wrote the following letter Exh. AS-295 to the MoEF.306 No. TPB2009/1095/CR-154-99/ UD-12. Urban Development Department Mantralaya, Mumbai 400 032. Date 5 October 2002. To, The Secretary, Ministry of Environment & Forest, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 001. Sub: - Development permission on land deleted 60.96 mt. To 18.40 mt. road for residential purposes, BBR Block -IIl to IV, Adarsh Co-op.Hsg. Society. Ref:- Chief Promoter, Adarsh CHS letter dated 3/8/2002 (Copy enclosed). Sir, The Chief Promoter, Adarsh CHS vide its letter cited above, have (has ?) requested Government of Maharashtra to grant Govt. land for construction of welfare and housing facility to serving and ex-servicemen of Defence services. Considering the request of the society and existing situation in the surrounding area, the State Government had modified the sanctioned Development Plan of Backbay Reclamation area reducing the width of 60 mt. wide road to 18.40 mt. road and proposes to allot some land deleted from road to Co-op. society subject to MOEF, CRZ Notification dated 19/2/1991.307 The plot under reference is situated in ‘A’ ward of Municipal Corporation of Gr. Mumbai and on the west side Captain Prakash Pethe Marg. As per the CZMP for Brihan Mumbai Municipal Corporation area sanctioned by MOEF vide letter dated 19/1/2000, the land under reference is situated in CRZ Backbay Reclamation BEST Bus Depot and of existing road. The development is permissible as per development Control Regulation prevailing as on 19/2/1991. The infrastructure facilities such as electricity, water supply, drainage etc. are also is in existence. The land is situated on the west side of the Capt. Prakash Pethe Marg on which is development for residential and commercial proposes is in existence. Considering these facts the State Govt. has decided to allot plot under reference to the Adarsh Housing society for residential development. The modification to the Development Plan is sanctioned by the State Govt. under the provisions of section 37 of MR&TP Act, 1966, subject to the MOEF notification dated 19/2/1991. It is therefore, requested that NOC for development of plot under reference may pleased be issued. All documents such as application of applicant, part plan of D.P. showing plot under reference, HTL and CRZ categorization is enclosed herewith. Encl. as above. Yours faithfully, Sd/- (PV. Deshmukh) Dy. Secretary. To govt. Copy forwarded for information to:- Chief Promoter, Adarsh Co-op. Housing society (proposed) Pilot Bunder Road, Colaba, Mumbai 400 005".308 54.20. It is important to note that this letter was written much before the GOM issued LOI Exh. GOM-4-A in favour of the Adarsh CHS on 18-1-2003. It appears that at the time of writing this letter the request of the Adarsh CHS for allotment of the land in question was under consideration of the GOM. But Shri Deshmukh in his over enthusiasm informed MoEF that the GOM had decided to allot the land to Adarsh CHS for residential development. In the first para of the letter, Shri Deshmukh made it clear that the GOM had modified the sanctioned Development Plan of BBRS by reducing the width of Capt. Prakash Pethe Marg to 18.40 mts. It is significant to note that before modifying the Development Plan, the GOM, and in particular the UDD, did not seek permission of the MoEF. The modification of the Development Plan was sanctioned by the government on 10-4- 2002 Shri Deshmukh was asked the following question in para 53 of his evidence and he gave the following reply. "Q. At what stage and when is the NOC required to be obtained from MoEF in respect of classification ?, Ans. If the land falls in CRZ area then after sanctioning of modification in the DP, such permission for classification is required from MoEF.” Indisputably, no permission was sought and obtained from the MoEF before effecting the modification in the Development Plan in respect of the width of Capt. Prakash Pethe marg. The tL309 notification Exh. GOM-36 however contains a foot note that “Development of land within Coastal Regulation Zone area shall be subject to the conditions mentioned in Govt. of India , Ministry of Environment & Forests notification No. SO-114(E) dt. 19 February 1991 and as modified by Govt. of India, Ministry of Environment & Forests from time to time." In fact, in view of para 6 (2) of Annexure-1 of the notification dt. 19-2-1991 the development or construction activities in different categories of CRZ area shall be regulated by the concerned authorities at the State/Union territory level in accordance with the norms stated in the said para. We have already pointed out that MCZMA was constituted in the State in the year 1998 and thereafter it was reconstituted in January 2002. Therefore, it was not the MoEF but the MCZMA to whom the application for development permission in respect of reduction of the said road ought to have been made and permission obtained. However this was not done. 54.21. In para 34 of his evidence , Shri Deshmukh stated that it was on the request of the Adarsh CHS in its letter dt. 3-8-2002 that he wrote the letter dt. 5-10-2002 (Exh. AS-295) to the MoEF (unfortunately the letter dt. 3-8-2002 addressed by the Adarsh CHS was not found in the files of UDD and it was stated that it was missing). But in para 37 of his evidence Shri Deshmukh conveniently turned round and stated that he wrote the letter dt. 5-10-2002 at the direction of the Prin. Secretary Shri Ramanand Tiwari ( A.S.W.No.3). Shri Ramanand Tiwari confirmed this fact in para 31 of his evidence by stating that , he is aware of this letter AL i310 and that his approval was taken before writing this letter. In the same para Shri Tiwari further stated that the project proponent - Adarsh CHS- was supposed to obtain the CRZ clearance for development of the land. He was, therefore, asked a question in para 34 of his evidence as to what was the necessity of writing the letter Exh.AS-295 to MoEF, to which he replied “It was just to get confirmation of the view and action taken by the department’. He further stated that the said letter was by way of abundant caution regarding classification of the CRZ categorization and buildability. In para 31 of his evidence Shri Tiwari has also stated that CRZ clearance for development of land was to be obtained from UDD. This statement made by him is totally incorrect in view of the fact that the power to grant such clearance was vested with the MCZMA in view of section 3(3) of the Act 1986 read with para 4 of the Notification 1991 and para 6 (2) of Annexure-1 to the said Notification. It will thus be seen that there was really no good reason for Shri Deshmukh to address the letter dt. 5-10-2002 Exh.AS-295 to the MoEF particularly when the land in question was not allotted to the Adarsh CHS and when it was for the Adarsh CHS to apply for development permission from the MoEF. The above facts thus give a clear indication that both Shri P.V. Deshmukh and Shri Ramanand Tiwari were acting in tandem in advance to canvas the cause of Adarsh CHS. It is in this context that the fact that Shri Deshmukh and Shri Omkar Tiwari, the son of Shri Ramanand Tiwari became members of the a311 Adarsh CHS and were allotted flats in the Adarsh building, becomes relevant. 54.22. Inreply to the letter Exh. AS-295, Dr. Senthil Vel wrote the letter dt. 2-12-2002 Exh.AS-296 to Shri P.V. Deshmukh pointing out that HTL and CRZ categorization of the area as mentioned in the letter were not received. He therefore requested Shri Deshmukh to send the plot boundary super imposed on the approved revised CZMP of Greater Mumbai indicating the presence of authorized structure of road existed prior to 19-2-1991 abutting the proposed site on seaward side. In compliance of the request made in this letter, Shri Deshmukh submitted the requisite information and necessary documents to the MoEF along with his letter dt. 4-1-2003 Exh.AS-299. THE AMBIGUOUS AND CONTROVERSIAL LETTER DT. 11-3-2000 OF SHRI SENTHIL VEL. 54.23. With this, we come to the letter dt. 11-3-2003 Exh. AS-46 addressed by Dr. Senthil Vel to Shri Deshmukh. Though a short letter, it is big enough to create disputes and controversy about its interpretation. It is therefore necessary to reproduce the said letter as under:312 "E.No. J.17011/46/2002-IA Ill GOVERNMENT OF INDIA MINISTRY OF ENVIRONMENT AND FORESTS (IA-III Division) Paryavaran Bhavan, C.G.0. Complex, Lodhi Road, New Delhi -110 003. Dated 11% March 2003. To, Shri P.V. Deshmukh Dy. Secretary, Govt. of Maharashtra Urban Development Department, Mantralaya, Mumbai 400 032. Sub: - Development permission on land deleted 60.96 mt. to 18.40 mt. road for residential purposes, BBR Block II to V1, Adarsh Co-op. Original Petition. Hsg. Society. Sir, This has reference to your letter No. TPB 2009/1095/CR- 154/99/UD 12, dated 4 January 2003 regarding the subject mentioned above. As per the information provided in the above letter and the revised Coastal Zone Management Plan of Greater Mumbai, it is noted that the proposed residential complex falls within the Coastal Regulation Zone-II area. This Ministry has already delegated the powers to the concerned State Government for undertaking development in coastal Regulation Zone-ll. Accordingly, the proposed construction may be taken up as per the Coastal Regulation Zone Notification, 1991 (as amended from time wy313, to time) and the approved revised Coastal Zone Management Plan of Greater Mumbai. Yours faithfully, Sd/- (A Senthil Vel) Joint Director. 54.24. With respect to this letter, Dr. Senthil Vel has made following affirmations in para 11 of his affidavit: “After appropriate review in the Ministry and obtaining approval on the file, MoEF in its letter of 11% March 2003 referred the matter back clarifying to UDD, GOM since powers were already delegated to the State Government with regard to construction in CRZ-II area, stating that the proposed construction in the said area may be taken up as per the CRZ Notification, 1991, as amended from time to time and the approved revised CZMP of Greater Mumbai. This exchange of correspondence was between the MoEF and UDD, GOM and not with the project proponent ie. the proposed ACHS.” In para 12 of his affidavit Dr. Senthil Vel made it clear that the letter dt. 11-3-2003 of MoEF can, in no way, be construed as an NOC or a clearance under the CRZ Notification. He stuck to the same stand in para 14 of his evidence before the Commission. 54.25. Shri P.V. Deshmukh’s interpretation of the letter Exh. AS- 86 is to the effect that since the reply given by the MoEF was in aw314 the context of the query of issuance of No Objection Certificate, as an ordinary prudent man, ‘I interpreted the same that the Environment _ Minist! had_no objection if the proposed construction is carried out in accordance with the Coastal Regulation Zone Notification 1991 and Coastal Zone Management Plan of Greater Mumbai. | therefore forwarded the said letter dt. 11-3-2003 to the Chief Engineer, Brihan Mumbai Municipal Corporation with my perception and understanding about the reply......". (vide para 20 of Deshmukh’s affidavit dt. 17-2-2011). However, in his subsequent affidavit dt. 13-6-2011, Shri Deshmukh deviated from his earlier stand and affirmed in para 11(b) of his affidavit that, by his letter dt. 15-3-2003 he merely forwarded the letter dt. 11-3-2003 Exh. AS-86 with ” my perception of having been granted clearance for development and not for construction.” \t may be pointed out that in para 63 of his evidence before the Commission, while replying to a question put to him in the cross examination on behalf of the MoEF, Shri Deshmukh clearly admitted , “/t is true that the MoEF letter dt. 11- 3-2003 is not an environment clearance under the CRZ Notification of 1991 for construction of Adarsh building.” ‘The contradictions in these three affirmations of Shri Deshmukh are obvious and they show an attempt on his part to save his skin. 54.26. A careful reading of the letter dt. 11-3-2003 Exh. AS-86 would show that it is not couched in plain language conveying a clear and unambiguous meaning, Particularly the last sentence of iy315, the letter is ambiguous and capable of misinterpretation. The words used in the last sentence of the letter “Accordingly the proposed construction may be taken up as per Coastal Regulation Zone Notification, 1991......" could be misinterpreted to mean that permission was granted to the proposed construction. Dr. Senthil Vel could have done well if, instead of using the above mentioned words in his letter, he had plainly stated that the proposal for development may be taken up with the MCZMA. He appears to have not given a second thought to the words “The proposed construction may be taken up” and failed to note that they were capable of giving an impression that what was granted was permission for construction. Therefore, to understand the clear import we will have to refer to the letter dt. 5-10-2002 Exh. AS- 295 addressed by Shri Deshmukh in reply to which Dr. Senthil Vel wrote the letter Exh. AS-86. The first thing to be noted is that the subject of the letter Exh. AS-295 is “Development permission on land deleted 60.96 mt. to 18.40 mt. road for residential purpose, BBR Block I to VI, Adarsh Co-op. Housing Society". What was requested under the said letter was NOC for development of plot. Dr. Senthil Vel has stated in para 10 of his evidence that on the date of writing the letter Exh. AS-296-A ie. 2-12-2002 he was sure that MoEF could not have granted any development permission to the project. Thereafter in para 11 of his evidence he stated that he conveyed to the State Govt. by his letter dt. 11-3- 2003 Exh.AS-86 that the powers of granting development in CRZ- Il area were with the State Govt. and not with the MoEF. He aw316 further stated that therefore, on 11-3-2003 MoEF was not authorized to grant CRZ clearance in CRZ-II area and it was within the powers of the State Govt. to grant such clearance. (We will deal with the statement of Dr. Senthil Vel about the State Govt. having powers to grant such clearance a little later). 54.27. Seven and half years after the issuance of the letter Exh. AS-86, the MoEF issued a press note dt. 28-10-2010 Exh. GOM- 354 clarifying the factual position with regard to the said letter. It is stated therein that news items appeared in various newspapers stating that the MoEF had issued a No Objection Certificate to Adarsh CHS on 11-3-2003 for the construction of a residential building. It is clarified that in March 2003 the approving authority was meant to be the State Govt. and in the case of Maharashtra it was the Environment Department, Govt. of Maharashtra. In para 3 (c ) of the said press note it was clarified as under: “The Ministry had approved the revised Coastal Zone Management Plan of Mumbai on 19% January 2000. To obtain clearance under Coastal Regulation Zone Notification, 1991 the project proponent needs to submit the proposal enclosing the details of construction, classification of Coastal Regulation Zone area in the requisite format and submitted to the concerned Coastal Zone Management Authority, in this case this proposal should have been submitted to the MCZMA.” -317 In clause (f) para 3 of the said press note it was stated that the power to issue CRZ clearance was withdrawn by amendment S.0. No. 460(E) dt. 22-4-2003 in respect of projects costing more than Rs. five crores for the reason that the State Govts. were mis- utilizing the powers and permitting construction in non- permissible area. The press note, in conclusion, clarified that the letter of the MoEF dt. 11-3-2003 was obviously a clarification to the queries raised by the UDD and it was neither a clearance under the CRZ Notification, 1991 nor a No Objection Certificate. 54.28. The letter Exh. AS-86 should not be and cannot be interpreted as being a CRZ clearance to the Adarsh CHS for construction upon the land in question. The reasons are that on the date of the said letter i.e. 5-10-2002, the land in question had not been allotted to the Adarsh CHS, nor even a Letter of Intent proposing to allot the land in favour of the Adarsh CHS was issued by the GOM. Secondly, the letter Exh, AS-295 dt. 5-10-2002 addressed to the MoEF was not by the proponent ie. the Adarsh CHS but by the UDD. Thirdly, as clarified in the press note Exh. GOM-354 the said letter was not accompanied with the details of construction, classification of CRZ area etc. Moreover, the proposal for construction could have been submitted to the MoEF for CRZ clearance only after the building plans were approved and sanctioned by the Special Planning Authority ie. MMRDA. Therefore, if we read the so called CRZ clearance i.e. the letter dt. 11-3-2003 Exh. AS-86 in the light of the letter dt, 5-10-2002 Exh. A318, AS-295, then it becomes clear that no clearance or permission was granted by the MoEF but only a direction was given to proceed under the CRZ Notification, 1991 and the approved revised CZMP of Greater Mumbai. WHETHER THE LETTER DT. 15-3-2003 EXH. MMRDA-47 AMOUNTS TO CRZ CLEARANCE AND IF YES, WHETHER A VALID CLEARANCE ? 54.29. After the receipt of the so called clearance from MoEF i.e. Exh. AS-86, Shri Deshmukh wrote the following letter dt. 15-3- 2003 Exh. MMRDA-47 to the Chief Engineer, MCGM and forwarded copies thereof to three persons including the Chairman of the Adarsh CHS. The letter reads as under: “Government of Maharashtra. No. TPB 2099/1095/CR-154/99/UI Urban Development Department. Mantralaya, Mumbai -400 032. Dated: 15 March, 2003. To The Chief Engineer, (Development Plan), Brihanmumbai Municipal Corporation, Fort, Mumbai. Sir, Subject:- Development permission on land deleted 60.96 mt. road for residential purposes, BBR Block Ill to V1, Adarsh CO-op. Housing Society. \ _319 Reference.- 1) Office letter No. TPB 2099/1095/CR- 154/99/UD-12 dated 10% April, 2002. 2) MOEF letter No, FF No. J-17011/46 /2002/IA Ill dated 11% March, 2003. The Government in Urban Development Department vide Notification No. TPB 2099/1095/CR-154/99 (A)/UD-12 dated 10% April, 2002 sanctioned the modification to the Development Plan of Mumbai Backbay Reclamation area under section 37(2) of the Maharashtra Regional and Town Planning Act, 1966 as regards change in the width of the Prakash Pethe Marg. By virtue of this modification, the width of Prakash Pethe Marg was modified to 18.40 mtrs. from 60.97 mtrs. and in the area so deleted, as shown on the accompanied plan of Notification was included partly in residential zone, parade ground, Helipad and BEST Depot. The matter was referred to the Ministry of Environment, Government of India as regards modification since it falls in CRZ-Il area. It was specifically noted in the Notification that the development of land within Coastal Zone area CRZ-II shall be subject to the conditions mentioned in Government of India, Ministry of Environment and Forests Notification No. SO 114(E) dated 19% February 1991 as modified from time to time. Accordingly, the reference was made to the government of India MOEF, seeking permission for the Adarsh Co-op. Housing Society to allow them to have a building on the land which falls in residential zone vide Government letter dated 4 January 2003. The Ministry of Environment and Forests have communicated their no objection to allow the said residential development since it falls within the Coastal Regulation Zone II area which satisfies the norms of Notification dated 19% February, 1991 and amendments made therein made upto 21stMay 2002. Now there appears therefore, no objection to allow the residential development to the Adarsh Co-op. Housing Society on the land included in residential zone as per the notifications sanctioned by the Government. The copy of the letter dated MOEF wh320 dated 11° March 2003 is enclosed herewith for ready reference. Yours sincerely, (P.V. Deshmukh) Deputy Secretary to Government Copy to: 1) Chief Planner, Mumbai Metropolitan Region Development Authority, Mumbai. 2) The Executive Engineer, (Bldg. proposal), Municipal Corporation of Gr, Mumbai, Byculla. 3) The Chairman, Adarsh Co-op. Housing Society, Mumbai’. The perusal of this letter makes it clear that reference was made to the MoEF seeking permission for the Adarsh CHS to allow a building on the land falling in residential zone. It further states that the MoEF communicated its no objection to allow the said residential development since it falls within the CRZ-II area and satisfies the norms of the notification, 1991 as amended upto 21- 5-2002. What is thereafter communicated under this letter is “There appears therefore no objection to allow the residential development to the Adarsh Co-op, Housing Society on the land included in residential zone as per Notification sanctioned by the Government”. The plain meaning of this communication makes it clear that it purported to communicate a CRZ clearance for construction. However Shri Deshmukh has affirmed in para 5 of his second affidavit dt. 13-6-2011 to the following effect: AN32a “I say that my letter dt. 15-3-2003 is being misinterpreted and misconstrued to read as having granted clearance for construction by the Ministry of Environment & Forests, Delhi, as contemplated by CRZ Notification of 1991.” Before the Commission Shri Deshmukh stated in para 58 of his evidence that the letter Exh. MMRDA-47 only informed about the approval of classification approved by MoEF. This is yet another attempt on the part of Shri Deshmukh to wriggle out of the statement made in the said letter. If the letter was meant to convey approval of classification by the MoEF, then what was the necessity for Shri Deshmukh to inform by the said letter that there appears to be no objection to allow residential development? Moreover the said letter does not refer to any classification having been approved by the MoEE. The subject of the said letter is not classification but development permission. Therefore, it is futile for Shri Deshmukh to contend that what he conveyed by this letter was not a CRZ clearance. The letter Exh. MMRDA-47 therefore ex-facie appears to be a communication of CRZ clearance by the UDD. 54.30. Ms. Kiran Bagalia, the Id. Counsel for the MMRDA has stated on page 45 of her written submission, “In this peculiar case the State Government has sought and given CRZ clearance in its function as owner of the land and statutory authority to grant clearance.” It was submitted by Shri Manish Desai and Shri Saket Mone, Id. Counsel for the Adarsh CHS that the letter dt. 15-3-2003 is a valid clearance and that the State Government was the WV322 appropriate authority to grant clearance. It was further submitted that the power to grant clearance at the relevant point of time was delegated to the State Government by the MoEF under the 1997 Notification. | We have gone through the said Notification but there is nothing specific to indicate that the power to grant CRZ clearance was given or delegated to the State Government. The said Notification inter alia amends sub clause (iv) of clause (2) of para 3 of the Notification 1991 which deals with regulation of permissible activities, The activity which would be permissible under sub clause (iv) is “All other activities with investment exceeding Rs. five crores except those activities which are to be regulated by the concerned authorities at the State/Union territory level in accordance with the provisions of paragraph 6 sub para (2) of Annexure-1 of the Notification’. It therefore impliedly means that a construction activity less than Rs. five crores or not exceeding Rs. five crores does not need environmental clearance from the MoEF or the concerned authority at the State level ie. MCZMA. It is important to note that admittedly the construction activity of the Adarsh CHS was involving investment exceeding Rs. five crores. Therefore, CRZ clearance in terms of paragraph 6(2) of the Notification, 1991 was mandatory and the only competent authority to grant a valid CRZ clearance was the MoEF. 54.31. This brings us to the statement made by some witnesses before the Commission that till 22-4-2003 the GOM was competent to grant CRZ clearance. Referring to the letter dt. 11-323 3-2003 Exh. AS-86, Shri Ramanand Tiwari has stated in para 41 of his evidence that the said letter speaks that the MoEF had already delegated the powers to the concerned State Governments for undertaking development in CRZ-II. He further stated that this power was exercisable by the State Government till 22-4-2003. Shri Deshmukh also stated in para 51 of his evidence that it was the Prin. Secretary, UDD-1 who could grant the NOC from the CRZ point of view. In para 52, he stated that on 5-10-2002 he was fully aware that the power to issue NOC was with the State Government. Similarly Dr. Senthil Vel also stated in para 11 of his evidence that by his letter dt. 11-3-2003 Exh. AS- 86 he conveyed that the powers of granting development in CRZ- II area were with the State Government and not with the MoEF. He further added that on 11-3-2003 the MoEF was not authorized to grant clearance in CRZ-II area and it was within the powers of the State Government to grant such clearance. In para 12 he stated that on 22-4-2003 the MoEF withdrew this powers of the State Government. 54,32, Dr. B.N. Patil who has been a Member Secretary of MCZMA since January 2009 has stated in para 3 of his evidence that in the year 2002-2003 it was UDD which used to verify whether a particular land was falling in CRZ-Il area. Dr. Patil has produced a copy of the Standing Order 394(E) dt. nil Exh. C-64 which appears to have been published in parts during the period from 16-4-1987 to 21-8-1989. This, he produced in reply to the question, whether under the Act 1986 powers were delegated to iN324 the Chairman and Member Secretary of MCZMA ordering demolition of the whole building or part thereof without referring to the concerned Minister. Actually the said Standing Order specifies the officers authorized for taking cognizance of offence under sec. 19(a) of the Act 1986. Under entry 3 thereof the Government of State represented by the Secretary of Environment has the power to take cognizance of any offence under the Act 1986 and file a complaint. Any way this Standing Order does not spell out that the State Government was authorized or delegated with the powers to grant CRZ clearance. 54.33, Smt. Valsa Nair Singh (GOM W.No.17) who was previously Collector of Mumbai and presently Secretary of Department of Environment , GOM stated in para 8 of her evidence that the project proponent has to make the application for MCZMA recommendation and such application can be made either directly to the MCZMA or routed through UDD. In para 9 of her evidence Smt. Valsa Nair replied in the negative to a question as to whether prior to 22-4-2003 the Planning Authority could grant CC before obtaining CRZ recommendation from the MCZMA. Shri Thomas Benjamin (GOM W. No.20) was asked the following question in para 22 of his evidence, “Was it necessary to obtain CRZ clearance by the project proponent from the UDD and with a recommendation of MCZMA prior to 22-4-2003 ? and the reply given by Shri Benjamin is, “ No. with regard to UDD as the sole authority was MCZMA. Before 22-4-2003 the CRZ clearance were given by MCZMA vide Order of the MoEF dated 4-1-2002 whereby he q AC325, MCZMA was reconstituted. So from 4-1-2002 to 22-4-2003 MCZMA was the authority to give CRZ clearances regardless of the investments. During this particular period the UDD does not come into picture.” 54,34. In the absence of any documentary or oral evidence to show that the GOM was invested with powers to grant CRZ clearances, the best way to seek the answer, is to refer to the provisions of the Act 1986 itself. We have already quoted the provisions of section 3(3) of the Act 1986 in para 54.2 above. Now to recapitulate the same, we think it proper to highlight certain parts of the section 3(3) of the said Act by omitting those parts not relevant for the present discussion. The highlighted portion would therefore read as under: “3) The Central Government may wes. BY OFdEF eon constitute an authority... by such name as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government...... for taking measures with respect to such of the matters referred to in sub section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority.... may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority had been empowered by this Act to exercise 2.326 those powers or perform those functions or take such measures.” As stated earlier MCZMA was first constituted by an order dt. 26-11-1998 Exh. MMRDA-S2 by the Central Government for a period of two years and thereafter it was reconstituted by an order dt. 4-1-2002 Exh. MMRDA-S3 for a period of three years. Both these orders were issued in exercise of the powers conferred by sub section (1) and (3) of section 3 of the Act 1986. Therefore, MCZMA isa statutory and autonomous body and it is competent to exercise the powers and perform functions which are specified in the orders dt. 26-11-1998 and 4-1-2002. MCZMA is a creation of a Central statute and therefore is independent of the State Government's jurisdiction. Although sub section (3) purports to give wide powers to such an authority which is indicated by the words, "As if such authority had been empowered by this Act to exercise those powers or perform those functions or take such measure’, however, both these orders do not give any power to the MCZMA to grant CRZ clearance. The MCZMA is empowered inter alia to examine proposals for changes or modifications in classification of CRZ areas and make specific recommendations to MoEF as also to examine all projects proposed in CRZ area and give their recommendations before the project proposals are referred to the Central Government. a \\307 54.35. It was contended by Ms. Bagalia on behalf of the MMRDA that the MCZMA was not functional during the year 2002-2003 as it was not manned with sufficient establishment to discharge its functions. However it is not possible to accept this submission because Dr, Patil has stated in para 26 of his evidence that MCZMA was discharging the functions outlined in the orders dt. 26-11-1998 and 4-1-2002. He produced the minutes of the 6" meeting dt. 30-7-2001 held by the MCZMA. Earlier in para 14 of his evidence Dr. Patil stated that the first recommendation for clearance in CRZ-II area was given by the MCZMA in its second meeting held on 5-5-2002. Dr. Patil is associated with MCZMA since January 2009 but he has made this statements on the basis of certain records. Our attention was drawn to certain statements made by Dr. Patil in para 26 of his evidence wherein he stated, “J cannot answer whether the MCZMA was not discharging its function because it had not the requisite staff. 1 cannot say if during the year 2002-2003 the MCZMA did not have sufficient establishment to discharge its functions under the above mentioned two orders. I cannot say if during the year 2002-2003 the government did not forward any building proposal to MCZMA for recommendations......... 1am not aware if during the said period ie. 2002-2003 all the proposals were required to be ‘forwarded by the UDD directly to the MoEF.” Ms. Bagalia put the following question to Dr. Patil in para 26 of her cross examination. The question and the answer given by him are as under: 4328 “Q. Would it be correct to say that though it was mandatory, it was practically impossible for compliance as MCZMA did not have the required machinery ? Ans, It is not true as the environment department was assisting the MCZMA.” In view of the above stated position, we are unable to accept the submission of Ms. Bagalia that during the relevant period MCZMA was not functioning. 54,36. Assuming for the sake of argument that during the relevant period the MCZMA was not functional as contended by Ms. Bagalia; still this fact ipso facto does not put the UDD in the Place of MCZMA. It cannot be ignored that the MCZMA is a statutory authority created under the provisions of the Act 1986 which does not give any power to the State Government in the matter of CRZ clearance. Therefore if despite this legal position, the UDD had taken upon itself to give CRZ clearances then they would be void ab initio. Such an action on the part of UDD is nothing but encroachment upon the provisions of the Act 1986. The word “Authority” mentioned in section 3(3) of the Act 1986 refers to MCZMA and not any authority of the State Government. Similarly the words, "Concerned authorities at the State/Union territory level” used in para 6(2) of Annexure-1 of the Notification 1991 do not refer to any department or authority under the State Government. In short, the powers delegated to MCZMA under the order dt. 4-1-2002 by the Central Government cannot be exercised by the UDD as it is not an authority Me329 constituted under section 3(3) of the Act 1986 read with the Order dt. 4-1-2002 Exh. MMRDA-53 issued by the Central Government, THE PROVISIONS OF PARAGRAPH 6(2) OF ANNEXURE-1 TO THE NOTIFICATION 1991 ARE MANDATORY. 54.37. Para 3 of the Notification 1991 enumerates the activities which “will require environment clearance” . Para 6(2) of Annexure-I however states, “ The development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities at the State/Union territory level in accordance with the following norms”. (underlining provided). It will thus be seen that ex-facie and prima facie the provisions of para 6(2) of Annexure-I are mandatory. A number of decisions were cited by Shri Manish Desai along with Shri Saket Mone and Ms. Tejaswini Bhakare, the Id. Counsel for the Adarsh CHS, to show that the use of auxiliary (verb) “shall” is not necessarily mandatory but it is only directory as the non-compliance of the provision in para 6(2) of Annexure-I of the Notification 1991 does not provide for any consequences. In support of their submission reliance is placed upon the following decisions: 1) In the State of U.P. Vs. Manbodhan Lal Srivastava - 1958 SCR 533, the Supreme Court in the context of Article 320 (3)(c ) of the Constitution of India which contemplates consultation with the UPSC or the State PSC observed that the use of the word “shall” is not mandatory as the non-compliance Me330 with the requirement of the provisions contained in Article 320(3)(c ) does not provide for any consequences. 2) Inthe case of Ram Deen Maurya (DR.) Vs. State of Uttar Pradesh & ors. -(2009) 6 SCC 735 it was held that whether a particular provision is mandatory or directory has to be ascertained from the content, subject matter and object of the statute. It was held that the word “shall” is not decisive. If consequences of non-compliance with procedural requirement is not provided by the statute, the requirement may be treated as directory. 54.38. Shri Dhiren Shah, the Id. Counsel for the MoEF on the other hand, relied upon the following decisions: 1) In the case of Raza Buland Sugar Company Limited Rampur Vs. Municipal Board, Rampur -1964 DGLS (Soft.) 276 it was observed that the use of word “shall” is not itself sufficient to hold that a particular provision in the Act is directory or mandatory. The question has to be decided upon the facts of each case and the object of the statute concerned. The purpose for which the provision has been made, its nature, the intention of the legislature, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise331 on the facts of a particular case, including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. 2) In the case of Dinkar Anna Patil Vs. State of Maharashtra - 1998 DGLS (Soft) 1023 one of the questions before the Supreme Court was in the context of Rule 4-A of Maharashtra Civil Services (Regulation of Seniority) Rules 1982 which provides that if in the opinion of the State Government, the exigencies of service so required, the government may in consultation with the MPSC wherever necessary make appointments to the posts in relaxation of the percentage prescribed in Rule 4 of the Rules by promotion and nomination. The tribunal held that the word “may” used in the said Rule is directory. The Supreme Court however held that to give such a meaning would render the very object o consultation with MPSC wherever necessary nugatory. It would give unbridled power to the government to dispense with the consultation with MPSC which may result into arbitrary exercise of powers by the authority. It was observed that this could never be the object of Rule 4-A and therefore the word “may” must mean “shall”. 54.39. Turning to the decisions relied upon by Adarsh CHS, it is necessary to bear in mind that it is a misconception that non- compliance of para 6(2) of Annexure-I of the Notification 1991, -332 does not provide for any consequence. In this connection reference may be made to section 5 of the Act 1986 which states that the Central Government may in exercise of its powers and performance of its functions under the Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. It is in exercise of this power that the MoEF by its order dt. 14-1- 2011 Exh. C-46, directed “the unauthorized structure built at Block V1, Backbay reclamation area, near Backbay Bus Depot, Capt. Prakash Pethe Marg, Colaba, Mumbai -400 005, A ward should be removed in its entirety and the area restored to its original condition”. The same order further states that , “In case the above directions are not complied within three months from the date of receipt of this order, the ministry will be constrained to enforce this direction and undertake action under sec. 15 of the Environment (Protection) Act 1986". It is further important to note that section 15 of the Act 1986 provides for penal consequences for contravention of the provisions of the Act and the Rules, Order and directions. Each failure or contravention of the order or direction is punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lac rupees of with both. Sub section (2) of section 15 of the Act provides that if the failure or contravention continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. In the light of these penal consequences provided WL333, by the Act itself, it is futile for the Adarsh CHS to contend that the provisions of para 6(2) of Annexure-l of the Notification 1991 are directory and without any consequences. 54.40. Shri Dhiren Shah the Id. Counsel for the MoEF submitted before us that to read the requirement of the MCZMA recommendation as merely directory would be to remove the critical environmental safeguard imposed by the Notification of 4-1-2002 and to disregard the statutory mandate of section 24(1) of the Act 1986 which gives over riding effect in law to the said Notification. It would also eliminate the essentiality of review of the proposed project by an expert technical body and render the decision making process arbitrary, unreasonable and irrational. Besides it would confer unbridled powers on the GOM/MMRDA even in respect of environmental matters. On a careful consideration, we are inclined to accept the submission of Shri Dhiren Shah as we find that the reasons put forward by him are very much valid and consistent with the spirit of the Act 1986 as well as the Notification 1991. 54.41. Shri Manish Desai further relied upon the decision in Life Insurance Corporation of India Vs. Escorts Ltd. & ors. - (1986) 1 SCC 264 wherein the Supreme Court in the context of section 29(1) of the Foreign Exchange Regulation Act 1973, observed that the permission of the Reserve Bank of India contemplated under the said section need not necessarily be a Ky334 prior one and it may also be ex-post facto, We are not impressed by this submission. It does not lie in the mouth of the Adarsh CHS, after having constructed a 31 storeyed skyscraper unauthorizedly without any valid CRZ clearance from a competent authority, to say that CRZ clearance can be obtained now, Much water has flown after the order of demolition was passed by the MoEF on 14-1-2011. The Adarsh CHS has challenged the said order by filing a writ petition in the Bombay High Court and the same is pending. The Adarsh CHS is at liberty to press this contention in the High Court. But the fact is that it is not the case of Adarsh CHS even now that it had applied for CRZ clearance from MoEF with the recommendation of MCZMA after the said demolition order. Therefore the submission made by Shri Desai in this respect is of no consequence. 54.42. To conclude the foregoing discussion, we record that it was mandatory for the Adarsh CHS to have obtained a valid CRZ clearance from a competent authority but the same has not been obtained and therefore there has been contravention of the provisions of the act 1986 as well as the Rules under the Act and the Notification 1991. We also hold that neither the letter dt. 11- 3-2003 Exh. AS-86 nor the letter dt. 15-3-2003 Exh. MMRDA-47 amounts to the requisite CRZ clearance . Hence the finding on issue no.89 is in the negative.REPORT OF COMMISSION OF INQUIRY ADARSH C.HS. LTD., COLABA, MUMBAI CONSISTING OF THE HONOURABLE SHRI JUSTICE J.A. PATIL (RETD.) _ CHAIRMAN AND SHRI P. SUBRAHMANYAM, RETIRED CHIEF SECRETARY, GOVT. OF MAH. _ MEMBER ON TERMS OF REFERENCE NOS. 3 TO 13 PART II Volume II - Page Nos. 335 to 542 Term No6 - Page Nos. 335 to 542 (Membership issue)116&117 1. Introductory Background facts. i) The Adarsh CHS 248241. 117&118 Ltd. ii) Hunt for Govt.land 25&25.1 iii) Intervention of Shri Kanhaiyalal 26 to 26.2. Gidwani iv) Alternate proposal 27to 27.4. for allotment of land in question |v) Society's letter to 28 128 & 129 | the Revenue \ Minister Shri Ashok | Chavan | | I | 118 to120 120 to 122 122 to 127 vi) Proposal for 29.t029.2. | 129to 132 reduction in the proposed width of Capt. Prakash Pethe Marg vii) Steps taken by the 30 to 30.1. 132 to 134 Govt. viii) Processing of the 31 1348135 proposal for | allotment of land to | } { | | | | | | { i Adarsh CHS ix) Issue of letter of 32 135 to 137 intent x) Grant of Letter of Allotment ____|_—_— 33 & 33.1. | 137 &138 " PageNo. |xi) Move for securing addl. FS! of BEST 34 t0 34.3, | plot xii) Grant of Addl, FSI to Adarsh society 35 xiii) CRZ clearance from MoEF 36 to 36.2 146 to 148 xiv) Construction of the building of Adarsh 37 &37.1. 148 to 150 cHS | xv) Reference to the High Rise Committee xvi) Membership of Adarsh CHS xvii) Valuation of the Jand in question and addl. FSI granted to the society 138 to 143 1448145 38 to 38.2. 150 to 152 3910 39.5, 153 to 156 40 & 40.2 156 to 158 i) Modification of the 41.1t041.7 | 158 to 167 Development Plan ii) Notice to MOD/LMA was necessary ili) Whether the said 42 & 42.1 170 to 173 modification amounts to change in the character of the entire Development Plan { | i | | i { { pe 2. Term No.3 of reference. 41t0 44.7 158 to 199 41.8 to 41.10 167 to 169 | | | iv) Whetherthe object | 43 t0 43.18 173 to 193 of the said \ I | modification was | | Ge dest sagagcage Wea estateacteagctaaec Sa sia eca Ccv) Whether there was a change of reservation i) Additional facts ii) Whether loading of | FSI of BEST plot on 3. oe Term No.4 of reference the land in question without amalgamation is 4. | TermNo.5 of reference |i) Which DCRis | applicable to the \ bldg.. of Adarsh CHS | ii) Whether there have { been contraventions in utilization of FS! in respect of certain items in the construction of the bldg. of Adarsh CHS. a) Floor Space Index b) FSI for items of stair case, lift, lobby etc. ) Podium d) Recreation ground e) Set back area | 45 to 46.10 45 to 45.12 46 to 46.10 47 to 52.13 47 to 47.15 48 to 52.13 48 to 48.7 49& 49,1 49.2 to 49.8 50 to 50.6 51to51.2 _52to 52 200 to 225 200 to 215 216to 225 226to 283 226 to241 241 to 283 i | | | 241 to249 249to 251 251to258 | 258 to 267 267 to 270 270t0276f g) Reference to High | | Rise Committee 6. Term No.9 of reference i) Environment (Protection) Act, 1986, the Rules framed thereunder and the notification dt. 19-2- 1991 _ issued by the MoEF. ii) Coastal Zone Management Plan & | Coastal Zone | Management | Authority. | ili) Plea of Adarsh CHS \ that Act 1986 & \ Notification 1991 do | not apply to it.... | whether correct. | iv) Whether CRZ | clearance/ permission was required by Adarsh cHS v) Whether the Adarsh CHS applied for CRZ clearance. vi) Whether the letters Exh.AS-86 & Exh.MMRDA-47 amount to CRZ __clearance 52.5. to 52.13 54 to 54.42, 54 to 54.3 54,11 to 54.13 54.14 to 54.17 54.18 54.19 to 54.22 276 to 283 284 & 285 { 285 to 334 285 to 291 291 to 298 298 to 300 301 to 304 304&305 305 to311| 54.23 to 54.28 vil) Ambiguous and 311 to 318 contravential letter } dt. 11-3-2000 of Shri Senthil Vel viii) Whether the letter dt. 54.29 to 54.36 | 318 to 329 15-3-2003 Exb.MMRDA-47 amounts to CRZ clearance and if yes, whether a valid clearance ix) Theprovisionsof | 54.37t054.42 | 329to 334 paragraph 6(2) of | Annexure-Stothe | notification, 1991 are | mandatory | eecttL (term No.6 of reference 55to 60 |i) Preliminary 55 | | li) Eligibility criteria for 55.1to55.7 | membership under the GR dt. 9-7-1999 & Gr. Dt. 25-5-2007 ili) Procedure followed | 55.8 to 55.10 by the Adarsh CHS for selecting its members Iv) Procedure followed by | the Collector for | 55.11 to 55.14 scrutiny of membership | applications { { { of 1076 sq.ft. each. 56 to 56.85 a) Lt. Cdr. | Gurumukhsingh 56 & 56.1. Grewal (Retd.) b) ShriJitendra Awhad | 56.2&56.3 MLA ¢) Late Major Narayan | 56.4 to 56.6 W. Khankhoje (Retd.) d) Smt. Seema Vyas 56.7 to 56.11 e) Brig. Avinash Chander | 56.12 to 56.14 Chopra f) Lt.Gen. Shantanu 56.15 to 56.17 Choudhary(Retd.) g) Lt.Gen.Gurubaksha- | 56.18 to 56.20 Singh Sihota. (Retd.) | | | { \ | A wing - flats with areas i I | | | | | | h) Shri P.V.Deshmukh 56.21 to 56.24 | i | | | )) Shri Babasaheb | (56.25 to56.29 Kupekar | | )) Vice.Admiral Madanjit | 56.30 to 56.32 | Singh | o x 335 336 336 to 345 345 to 348 348 to351 351to 414 351to 353 353&354 354 to 357 357 to 361 361 to 363 363 to 365 365 to 367 367 to 370 370 to 374 374 to 377~~ k) Cdr. Arigapudi — 56.33 &56.34 | 377&378— Purankumar 1) Admiral Madhavendra | 56.35 to 56.37 | 378 to 380 Singh (Retd.) m) Shri Suresh Prabhu | 56.38 t0 56.43 | 381 to 385 n) ShriJ.M. Abhyankar | 56.44t056.47 | 385 to 387 0) ShriArunPandurang | 56.48t056.50 | 388 &389 Pawar | Pp) Major Ashish Tandan | 56.51t056.53 | 390 to 392 q) Cmde. Gopal Bharati. | 56.54&56.55 | 392 & 393 r) Lt. Gen. P.K. Rampal 56.56 to 56.60 393 to 396 s) Dr. Devayani 56.61 to 56.64 | 396 to 399 | Khobragade t) Smt. Idzes Angmo 56.65 to 56.69 | 400 to 403 Kundan | u) Shri Ram Chandra 56.70 to 56.72 403 to 406 Thakur | |v) LtCoLArun Pratap | 56.73 to 56.75 | 406 to 408 | Singh | | w)Shri Kanhaiyalal | 56.76 056.78 | 408 to 410 Gidwani | x) Brig. Tarakant Sinha | 56.79&56.80 | 410&411 y) Cdr. Raju Pilo 56.81&56.82 | 411&412 2) Major Gen. T.K.Kaul | 56.83 to 56.85 | 413.8414 Awing- Flats with area of | 57 to 57.69 | 415to 458 650 sq. ft. a) Shri Aditya Bhagat | 57 to 57.2. 415 to 417 Patil b) CoLR.K. Bakshi 57.3 417 & 418 c) Shri Amarsingh H. | 57.4 to 57.7 418 to 420 Waghmare d) Shri Vishal Kedari | 57.8 & 57.9 420 &421 e) Dr. Archana Tiwari | 57.10 to 57.12 | 421 to 423 f) Lt.Gen.Tejinder | 57.13 &57.14 | 423 &424 singh \ g) Dr. Sripat B Chavan | 57.15 to57.17_| 424 to 426 ah) Smt. Seema Vinod Sharma i) Prof. Satyasandha Vinayak Barve \ ky Shri Uttam Gakhare }) Shri Sajjan singh | Yadav m) Shri Girish Pravin Chandra Mehta n) Shri Kanishka J. Phatak 0) Ms. Supriya V. Mhaske p) Shri Omkar Tiwari q) Cdr. Harbhajan singh ) Shri Arun S. Adate 8) Shri Sanjoy Sankaran t) Dr. Sanjay Radkar u) Shri Jagdish Prasad Sharma | v) Shri Dhondiram G. Waghmare w)Shri Kailash K. Gidwani x) Smt. Kavita | Godbole y) Dr. (Surg, Capt.) PS. Thampi z) Smt. Sheetal Vinod | j) Lt Cdr. Chunilal | | | 57.18 to 57.22 57.22 to 57.25 57.26 & 57.27 57.28 to 57.30 57.31 &57.32 57.33 to 57.35 57.36 to 57.38 57.39 to 57.41 57.42 to 57.44 57.45 to 57.46 57.47 &S7.48 57.49 & 57.50 57.51 to 57.53 57.54& 57.55 57.56 & 57.57 57.58 to 57.60 57.61 to 57.63 57.64 to 57. 67 57.68 & 57.69. ~ | 426 to 430 | | 430 to 432 432 &433 433 to 435, 435 & 436 436 to 438 438 to 440 440 & 441 442 & 443 444 &445 445 & 446 446 to 448 448 &449 449 to 451 4518452 452 to 454 4548455 | | 455 to 457 | | 457 & 458 ayB wing flats with area of | 58to 58.54 458 to 495 650 sq.ft. | a) Shri C.R. Gaikwad | 58 to 58.3 458 to 460 b) Shri Sidhharth 5848585. | 460& 461 Sonu Gamre c) Shri Bhavesh 58.6858.7 | 462 & 463 Ambalal Patel | d) Shri Anant. 5888589 | 463 & 464 Bharose | e) Shri Sudhakar 581085811 , 465 Laxman Madke f) ShriParamveer | 58.120 58.14 | 466 to 468 Abhay Sancheti g) Shri Parmanand K. | 58.15&58.16 | 468 & 469 Hinduja h) Shri Madanlal 58.178&58.18 | 469t0471 Milkhiram Sharma } i) Smt. Susheela 58.19 471 & 472 | Shaligram j) ShriMalavJayant | 58.20&58.21 | 472&473 Shah k) Shri Kiran | 38.22 473 & 474 Bhadange 1) Shri Shivaji 58.33 474 &475 Shankar Kale m) Ms. Rupali H. | 582485825 | 475t0477 Raorane \ | n) Brig. MM. 58.26&58.27 | 477&478 Wanchoo | 0) Shri Raghunath M. | 58.28&58.29 | 47810 480 Bhosale p)Ms.SoniaSuresh | 58.30 &58.31 | 4808481 Kolhapure q) Shri Ranjit 58.32 to 58.34 | 481 &482 Chintamani Sangitrao 1) Shri Shivajiraoc. | 583585836 | 483 & 484 | Deshmukh ay's) Shri Sandusingh Fulsingh Rajput t) Shri Sriniwas Dadasaheb Patil u) Shri Manilal K. Thakur v) Shri Sampat R. Khidse w)Shri Amit K. Gidwani x) Gen. Nirmal Chander Vij y) Major Gen. Varinder singh Yadav z) Shri Sushilchandra Sharma B wing -remaining 26 flats with area of 650 sq. ft. a) Shri Balasaheb Yashwantrao Sawant b) Capt. Praveen kumar c) Brig. M.D. Singh d) Shri Rajeshkumar Das e) Shri Suresh Gulabrao Atram f) Shri Rajesh Shantilal Bora g) Col. Amarjitsingh h) Smt. Bhagwati Sharma i) Smt. Sumeela Sethi 58,37 & 58.38 58.39 & 58.40 58.41 to 58.43 58.44 to 58.46 58.47 & 58.48 58,49 to 58.51 58.52 & 58.53 58,54 59 to 59.65 59& 59.1 59.2 & 59.3 59.4&59.5 59.6 & 59.7 59.8 to 59.10 59.11 & 59,12 | 59.13 59,14 to 59.16 59.17 to 59.19 484 & 485 485 & 486 486 to 489 489 to 491 491 & 492 492 to 494 | 494% 495 | 495 496 to 542 496 & 497 497 to 499 499 &500 500 to 502 502 &503 504.&505 | 505 & 506 506 to 508 | | 508 to 511 LL a \vu j) Shri Dhaval Rajesh Shah kk) Shri Amol Karbari 1) ShriKrishnarao | Dhondiba Bhegde | m) Lt. Col. R.K. Singh n) Col. KJ.S. Khurana ©) Shri Vishwas Bapu Chougule | p) Cdr. John Mathew q) Shri Anil Kumar Thakur r) Shri Nivrutti G. Bhosale s) Gen. Deepak Kapoor t) Car. AS. Balkrishnan u) Lt. Col. Paramahans Ram v) Dr. Arun V. Dawle w) Shri Gajanan Sadashiv Koli x) Brig. Romesh Chander Sharma y) Maj. Gen. R.K. Hooda z) ShriMukundrao G. Mankar | Summary of conclusions on issue no. 6 59,20 to 59.22 59,23 & 59.24 59.25 & 59.26 59.27 & 59.28 59.29 & 59.30 59,31 & 59.32 59.33 to 59.35 59.36 to 59.38 59.39 to 59.41 59,42 to 59.45 59.46 & 59.47 59.48 & 59.49 59.50 to 59.52 59.53 & 59.54 59.55 to 59.58 59.59 to 59.61 59.62 to 59.65 | 60. | | \ 511 to513_ 513 to 515 515&516 516 &517 517&518 518 to 520 520 to 522 522 to 524 524 to 526 526 to 528 528 &529 529&520 530 to 534 534&535 535 to 537 537 to 539 539 to 541 541 &542 alli) Ms. Rupali Raorane | (Superline Construction | |__ Pvt.Ltd. Term No.11 of reference 61 & 62. 543 to 579 i) Preliminary 61 543 & 544 if) The Benami 611 544 to 546 Transactions (Prohibtion) Act, 1988 li) Some decisions on 61.2 to 61.5 546 to 551 Benami issue | iv)Benami Transactionsin | 61.6 to 62 551 to 579 Adarsh CHS. | a) Major Arun Pratap 616t0618 | 551t0553 Singh (Mrs. Priyanka | Lakhadawala) \ b) Ms. Sheetal Vinod Ganju | 61.9 553 &554 (Smt. Neelu Tej Kaul) | c) Shri Amarsingh H. | 61.10to 61.13 | 5550558 Waghmare (Smt. Irawati Parkar) 4) Shri Vishal Kedari (Shri | 61.14to 61.17 | 558to 560 Ram Sevak Nayyar & Smt. Parveen Nayyar) e) Prof. Satyasandha 611886119 | 560t0 562 Vinayak Barve (Smt. Sharmila Barve) f) ShriUttam R.Gakhare | 61.20 562 & 563 (Mrs. Arundhadi | Upadhyay) | g) Shri Dhondiram G. 61.21 563 & 564 | Waghmare (Jay { | Maharashtra | Consumers Pvt.Ltd.) \ | h) Shri Gajanan Koli j 61.22 564. & 565 (ShriSunil Gidwani) 61.23 &61.24 | 565 to 567 coj) Shri. Mukundrao Mankar (Landscaper Realtors Pvt.Ltd.) k) Shri Sandusingh Fulsingh Rajput (Shri Narayandas Agarwal) Shri Raghunath Maruti Bhosale & Shri Vishwas B, Chougule ( Shri Umesh Dhondiram Shinde) m) Shri Suresh Gulabrao Atram, Shri Sudhakar Laxman Madke, Shri Rajesh Shantilal Bora, Shri Jagdishprasad Sharma, Shri | Paramanand K. Hinduja, Shri Manilal K. Thakur, Lt.Col. Paramhans Ram, | | Col, Late Amarjitsingh | and Shri Kiran Bhadange (M/s. San Finance Corporation - Shri Abhay Sancheti) n) Shri Madanlal Milkhiram Sharma (Shri Malav Jayant Shah) (Note: The names in the bracket are the names of benamidars) j "| 61.25 & 61.26 61.27 to 61.29 61.30 to 61.33 61.34 to 61.40 61.41 & 62 567 & 568 | | | 569&570 { 570 to 572 573 to 578 578 &579 Term No.7 of the reference a) i) Meaning of quid pro quo ii) Who is a public servant iii) Dr. Pradeep Vyas | iv) Shri P.V. Deshmukh | v) Shri Ramanand Tiwar 67 & 67.1 acl 63 to 70.1 63 64 to 64.2 65 to 65.6 66 to 66.3 580 to 609 580 & 581 581 to 584 584 to 589 589 to 592 592 &593 _1 4 vi) Dr. Jairaj Phatak 68 to 68.2 1593 to 596 vii) Shri Ashok Chavan 69 to 69.11 | 596 to 606 viii) ShriBabasaheb 70 to 70.1 | 606 to 609 Kupekar | b) Whether the 71 to 71.1, 609 & 610 provisions of Prevention of Corruption Act would be attracted? | | | | | 10 Term No.10 of the 72 to 73.2 611 to 644 | reference | Preliminary | 72 to 72.3 611 to 615 ii) Relevant provisions of | 72.4 to 72.5 615 to 621 AIS Rules \ iii) Shri Subhash Lalla 72.6to728 | 621 to 623 iv) Smt. Seema Vyas & Dr. 72.9 & 72.10 624 Pradeep Vyas v) DrJairaj Phatak 7211 625 vi) Shri Shivajirao 72.12 626 Deshmukh vii) Shri Ramanand Tiwari | 72.13 to 72.15 626 to 629 viii) Shri CS.Sangitrao 72.16 629 & 630 ix) Shri Uttam Khobragade 7217 630 & 631 x)Dr. D.K.Sankaran & Dr. 72.18 to 72.21 631 to 634 Smt. Joyce Sankaran xi)Smt. LA.Kundan 72.22 to 72.25 635 to 637 xii)Shri Srinivas Patil 72.26 637 & 638 xiii) Shri Thomas Benjamin | 72.27 to 72.30 638 to 640 xiv)Shri P.V.Deshmukh 72.31 640 & 641 xv)Army officers 23 641 & 642 | xvi) Officers of the 7318732 | 643 & 644 L MMRDA ele ay11. | Term No.12 of the 7400 77.1 644 to 663 reference 74 644 & 645 i) Preliminary ii) Politicians’ patronage to 75to 77.1 645 to 662 the Adarsh CHS a) Shri Vilasrao Deshmukh | 75 to 75.6 645 to 651 b) Shri Sushilkumar Shinde | 76 to 76.8 651 to 661 and Shri Shivajirao | Nilangekar Patil c) Shri Sunil Tatkare and T7771 661 to 663 Shri Rajesh Tope 12 | Term no. 13 of reference, 78 (Ato J) 663 to 668 13. | Summary of conclusions 79 (Ito XXV) | 668 to 674 14 =| Epilogue 80 &81. 674 676335 Issue No.6:- Whether any person who was not eligible to become member of the Society, was approved to be made a member of the Society, if so, who ? PRELIMINARY. 55. This issue contemplates consideration of two things, The first is regarding the eligibility criteria of persons to become members of a Co-operative Housing Society to which government has allotted land. The second is ineligibility, if any, of any of the members who despite the ineligibility have been granted membership of the Adarsh CHS. Before proceeding to consider these two aspects, it is necessary to point out that there are in all 104 flats in the Adarsh building which consists of two wings, A and B. Out of these 104 flats, 26 flats in A wing are of the size of 1076 sq. ft. while the remaining 78 flats in both the wings are of the size of 650 sq. ft. vide the chart Exh. MEM-1077. It is seen from the said chart that one flat_on 6* floor of A wing has not been allotted to anybody but it was proposed to be allotted to Col. RK. Bakshi. Thus there are 103 members of the Adarsh CHS. The classification of those 103 members is; 61 - Civilians (private persons) 35 - Inservice and ex-servicemen 4 - Politicians. 3 - Bureaucrats 103 Total.336 Out of these 103 members seven, namely, Col. Amarjitsingh, Shri Kanhiayalal Gidwani, Shri Babasaheb Kupekar , Smt. Bhagwati Sharma, Smt. Sushila Saligram, Major N.W. Khankhoje and Dr. Sanjay Radkar have passed away. ELIGIBILITY CRITERIA FOR MEMBERSHIP UNDER THEG.R. DATED 9-7-1999 & G.R. DT. 25-5-2007 55.1. Dr. Pradeep Vyas (C.W. No.2) who was the Collector of Mumbai city from 28-8-2002 to 16-5-2005 has stated in para 52 of his evidence before the Commission that as per the LOI duty was cast upon the Collector to scrutinize the details given by the society of its proposed members with reference to the GR of R&FD dt. 9-7-1999 and to send a report to the government about their eligibility. A copy of the said GR is produced at Exh. LW. 3 (in Marathi) and GOM-70 colly.{in English) and it contains policy regarding allotment of government lands to Co-op. Housing Societies. The said GR contains three Annexures A, B and C. Annexure-A contains “Qualification for recognition of members in the Co-op. Housing Society seeking to acquire the government land by paying concessional lease value/lease rent”. In fact the said annexure incorporates the conditions of eligibility to become a member of a Co-op. Housing Society to which government land is allotted, There are seven conditions in Annexure- A which are as follows: wh337 1) The member of the society should be a resident of Maharashtra for at least for 15 years, however this qualification shall not be applicable to the (Government) members of parliament, members of legislative Assembly & Legislative Council & serving & ex-servicemen etc. whose said period is less than the specified period. ( The members of Parliament are not members of Government; probably what is meant is that Government servants, members of Parliament etc.) 2) Any member who is not in service or business or has not any other separate source of income should not be considered for membership. 3) For the purpose of fixing the income group of any member, the total monthly income of previous 36 months of said member's family should be taken into consideration. 4) A person can have only one House/flat as his own independent or in a Co-operative Housing Society in the jurisdiction of the Municipal Corporation. 5) The Member or his wife/her husband or his/her any minor child or any person depending upon the member should not be a member of any Co-operative Housing Society in the jurisdiction of the society in which he wants to be a member. 6) The member or his wife/her husband should not have got any plot or place at concessional rate with the why338 derequisitioned place from the Government in the jurisdiction of the Co-operative Housing Society. 7) If any Govt, Servant should be in service on the day on which intention letter is given to Co-operative Housing Societies , then only such employee shall be held eligible for membership. It may be pointed out that after the issuance of the said GR dt. 9-7- 1999, the same has been amended from time to time for ten times till 25-5-2007. The following two more conditions appear to have been added to Annexure-A by another GR dt. 10-2-2001. 8) If any government employee dies during service period, then his/her wife/husband shall be considered as eligible for membership of the society till the prescribed date of the superannuation of such employee. For this purpose the condition that the government employee must be in service on the date of the Letter of Intent shall be relaxed. However, the other terms and conditions prescribed for membership shall continue to be applicable 9) The persons having more than two children will not be eligible to be members of the Co-operative Housing Society to which government land is granted after 1-1-2002. This condition will also apply to the life members of the society. 55.2. At this stage it is necessary to point out some other provisions in the GR dated 9-7-1999 which have a relevance to ay339 the eligibility of the members of Co-op. Housing Societies. Para 2 of the said GR gives definitions of “Total monthly income of family of a member” and “Jurisdiction of Co-op. Housing Society”. Both the definitions are given together and they read as under: “The total monthly income of family means monthly income received by the person by all sources and it includes the income of his/her spouse. The jurisdiction of any society means the city, village or urban area of municipality or Municipal Corporation where the said society is situated.” 55.3. Para 3 of the said GR contains the following table showing income limit of members in various income groups and permissible FSI of flat and cost of occupancy right/floor rent to be charged. Se. [Permissible | Incomelimit [Group of | Costof | If land is to] No | FSI for the | Government | CCUPAPEY | be allotted on | right per- beneficiary | servant [as | centage of | lease. the market who is not a| per St) Pay | value as on | government | Commission) | thelst Jan- servant nary onwe year in the | land is _| allotted ze fe eeaz 3 4 5 6340 {~]300sqft. | Upto D Spercent | As per ) column NoS 1 Rs5000/- according to (Rs.8000/-) the rate of floor rent | permissible in that year| \ on the concessional cost of occupancy. I 450 sq.ft Rs. 5001 to] K(C) 10 percent | As above 2 7500/- (Rs. 8001/- to | | Rs.12000/-) 650sqft. | Rs. 7501 to] B 15 percent | Asabove 3 12500/- (Rs 12001/- to | Rs.20,000/-) 1076 sqft. | Not A 20 percent | As above | | permissible 4 — — —_— | J Note:- The bracketed figures given in column 3 are as per the amended GR dt. 25-5-2007. 55.4. It is indeed ironic that on issue no.6 Government has asked the Commission to look into the question of eligibility of members to become the members of the Adarsh CHS. It may be pointed out that para 6 of Government Resolution dt. 9-3-1999 clearly enjoins the applicant namely the Chief Promoter to make an application either to the Government or to the Collector indicating therein the details regarding the plot asked for viz.341 CTS. Number, CS Number, Plot number the area of the plot, a map of 1;4000 ratio its property card number, its 7/12 extract, and the exact number of the proposed members, their present residential addresses, their income per month, the domicile certificate and whether he belongs to the backward classes etc. Para 9 lays down that every society to which government land has been allotted for constructing residential flats should have registered 20% members of the total number of its members from amongst scheduled castes, scheduled tribes and nomadic tribes. Para 12 (IV) states that if the respective number of eligible applicants in Co-op. Housing Societies in the respective group is more than the plot available for that group, the decision as to whom the plot is to be allotted should be taken by a lot publicly. 55.5. The amended GR dt. 25-5-2007 Exh. AS-78 incorporates two proformas D and E. Proforma D is in respect of an affidavit which the applicant member has to make on a stamp paper of Rs. 100/-. The proformas are given in Marathi and their English translation would be as under: AFFIDAVIT “l, Shri/Mrs... sat Dore solemn affirmation and on oath state that 1 am applying for a . on membership of the proposed housing society by name ... which has been allotted government land bearing survey No./Hissa NOwervnom OPED situated at village .. . Taluka sone oe DIStTICE... il342 1) At present Iam serving /carrying on my occupation at .. 2) Lam resident of the State of Maharashtra and I have been residing in the State of Maharashtra Since .....u.1.u:YeQ?S. 3) My/my families total monthly income from all sources is RS... 4) Neither ! nor any member of my family has been allotted by the government any plot/flat/house within the jurisdictional area of the said society. 5) Ihave read / 1. am aware of the terms and conditions mentioned in the GR of the Revenue& Forests Department bearing No. 1L.CS/0606/case No. 54/]-1 dt. 25-5-2007 in connection with the buildings constructed /to be constructed on the government land. Iam fully aware of the same and they are binding on me. In addition to the same | am ready to observe the terms and conditions which the Collector of may prescribe from time to time. T have given the above information to the Chief Promoter/ Promoter of society and the same is true and correct as per my belief. it .am filing this affidavit today te. ........ at . for the purpose of getting membership of ..... burp Gg Society at .. Name and Signature Seal Before Metropolitan/City Magistrate” ut55.6. Personal information to be furnished by the applicant member of a Co-operative Housing Society established on government land”. 343, “Proforma E Passport size recent photograph of the applicant. ‘Name of the society and full address, [Fullname ofthe member __ Date of birth Sex Address of present residence als eles! | Information regarding the present residence (on rent or otherwise) a [Source of income (service/business/any other) Total monthly income of the family from all sources Income certificate issued by the competent ‘authority (the applicants mentioned in column 9 below should attach monthly pay certificate/monthly pension certificate) Brief information if the applicant is a Maharashtra government servant, retired employee of the Maharashtra govt, Member of the Parliament, Legislative Assembly/ Legislative Council, serving/ ex-servicemen in the State of Maharashtra. 10. Domicile certificate, whether attached , for others excluding those mentioned in column Nog. _ — — —_ Whether the applicant desires to avail of the relevant certificate is enclosed. (for | backward classes) uy benefit of reservation and whether — the| desirous.344 Sir, The above given information is true as per my belief. I do not have more than two children alive as on this date and neither I nor any member of my family owns any plot/flat/house within the jurisdictional area of the society mentioned above. Yours (faithfully) Sd/- Full Name & Date I know the applicant Sd-/ Name , Address & Signature of the Promoter/Chief Promoter of the society.” 55.7. Ona careful perusal of the GR dt. 25-5-2007 coupled with the eligibility criteria enumerated in the Annexure thereto, it will be seen that the government has purposely made two categories of the beneficiaries of its largess. The first is the category of government employees who are grouped as ABC and D depending upon their pay groups. The beneficiaries other than government servants are however categorized in three groups depending upon their monthly income. What is important to be noted is if the monthly income of a beneficiary other than a government servant is more than Rs. 20,000 per month then he will not be entitled to get any allotment and he is not eligible to get permissible FSI of 1076 sq. ft. In short, those beneficiaries oh345, other than government employees having monthly income of Rs. more than 20,000 stand excluded from the benefits of the GR; whereas this is not so in the case of Government employees. The reason appears to be that private persons having monthly income of more than Rs. 20,000 can compete in the open market to secure accommodation. However, this is not so with the government servants who have financial constraints. It further appears that the object of the said GR is to confer benefits upon the government servants and_ needy and poor private persons whose income does not exceed Rs. 20,000 per month. If such ceiling of income is not provided in the GR then the private persons with high income are likely to snatch the benefits of the GR regarding allotment of lands and flats. ‘THE PROCEDURE FOLLOWED BY THE ADARSH CHS FOR SELECTING ITS MEMBERS. 55.8. Shri R.C. Thakur (AS.W.No.2) who was initially the Chief Promoter of the proposed Society who subsequently became the Secretary, has stated in para 8 of his deposition that they had formed a Managing Committee which consisted of five persons who used to take decisions regarding admitting a person as member of the proposed society. He further stated that all the proposed members of the society were promoters. Shri Kanhaiyalal Gidwani (AS.W.No.1)_ he evidence that after the persons desirous of getting membership stated in para 161 of his made applications, the same were placed before the Managing346 Committee of the society. The Managing Committee used to examine those applications from the angle of eligibility and then forward the same to the Collector. Shri Gidwani further stated that initially it was a Committee of seven members but later on it was enlarged and made a Committee of nine members. The initial seven members of the Committee were the Secretary Shri Thakur, Chairman Brig. Wanchoo, Shri Gidwani himself as Jt. Secretary, his son Kailash, lady member Smt. Kavita Godbole, Brig. T.K. Sinha, Major Gen. T.K. Kaul and Cdr. Rajiv Pilo. He further stated that applications for membership were discussed in the meeting of the Managing Committee whenever it was called. The minutes of such meetings were prepared by the Secretary and the Chairman who were authorized to recommend the names of desirous members for approval by making endorsement below the applications showing approval. The endorsement of approval was required to be made by both the Secretary and the Chairman. Shri Gidwani also stated that the scrutiny of the applications was done by the Secretary and the Chairman. The Managing Committee itself was not looking into the contents of the documents submitted by the applicants. In para 162 of his evidence Shri Gidwani stated that whenever an applicant approached him for membership, he used to tell him to produce domicile certificate and income certificate. He also used to tel] him that for becoming a member of the Adarsh CHS the applicant must not be owning any house in the city of Mumbai or suburban district, He also used to ask the applicant about his residential proof. Shri Gidwani further stated that the An {347 potentiality of the applicant member to pay the cost of construction was not considered. 55.9. _ In para 24 of his evidence Shri Gidwani stated that before the LOI was issued, the number of the members of the proposed Adarsh CHS was increased. According to him, Shri R.C. Thakur, Brig. Wanchoo and sometimes he himself decided to increase the list of members. In that list, the names of Shri Jitendra Avhad, MLC, Shri Suresh Prabhu MP. and Shri Sriniwas Patil MP, were included. He stated that these three persons had approached them for becoming members of the Adarsh CHS. Shri Gidwani further stated, “We found that the above mentioned three persons were like minded and therefore it was decided to give them membership of the proposed Adarsh CHS. My idea of like-minded person is one who will be helpful in the cause of the proposed society and who is of my acquaintance". Shri Thakur on the other hand stated in para 5 of his evidence, “A group of likeminded persons sponsored the membership of our society. By the word ‘Like minded” I mean the persons who were having no accommodation in Mumbai and who wanted to work for the Adarsh society”. 55.10. The above versions of both Shri Gidwani and Shri Thakur give an idea about the manner in which the Managing Committee of the Adarsh CHS used to select its prospective members of their choice. It is found that below the application of the applicant, Shri Thakur used to make an endorsement “approved” and sign it. That does not however mean that the membership of the applicant was finally approved. It only means A328 that the application was approved for being forwarded to the Collector, for the purpose of recommending the same to the GOM for final approval. In short, the Managing Committee used to select and propose the names of the members, the Collector, Mumbai used to recommend their names and finally the GOM used to approve the names of the members so suggested and recommended. PROCEDURE FOLLOWED BY THE COLLECTOR FOR SCRUTINY OF MEMBERSHIP APPLICATIONS. 55.11. Shri Debashish Chakraborty (C.W. No.3), who was the Collector, Mumbai city from 17-6-1999 to 28-8-2002 has stated in para 31 of his evidence that he is aware of the procedure for approving membership of Co-op. Housing Societies. The said procedure, in his own words, is as follows: “ We take an affidavit from the concerned applicant for that purpose. We check from our record whether the concerned applicant owns any flat in any Co-operative Housing Society to which government land is allotted. The applicant is called, if necessary, for verification. The residence of the applicant is verified only on the basis of the domicile certificate produced by him’. Shri Chakraborty further stated that it is mandatory for the Collector's office to check and verify all the requirements of an |349 eligibility of applicant members. According to him, if any information given by an applicant is found to be incorrect or false then the Collector's office can issue a show cause notice to him and thereafter it may file a police case against him. 55.12. Dr. Pradeep Vyas (C.W.No.2) who was the Collector of Mumbai city from 28-8-2000 to 16-5-2005 stated in para 31 of his evidence that scrutiny of matters including membership of society is done by the Collectorate. In para 52 of his evidence Dr. Vyas further stated, “As per the LOI, the duties cast upon the Collector were to scrutinize the details given by the society of its proposed members with reference to GR of Revenue & Forests Department dt. 9-7-1999 and send a report to the government about their eligibility. I scrutinized the conditions prescribed for ..” A copy of the LOI Exh. GOM-4-A dt. 18-1-2003 was forwarded by the R&FD to the Collector with a direction that membership. after the society obtained information in respect of its members in terms of the GR dt. 9-7-1999, the Collector should personally make home visits on the addresses given by the members and verify their eligibility. As regards this direction, Dr. Vyas has stated in para 78 of his evidence that when he sent his report to the government he did not mention that it was not feasible for the office of the Collector to personally visit the places. He further stated that the Collector office relied upon the documents submitted, since most of the members were residing in the districts outside Mumbai city. In para 79 he stated that he did not ask the government to waive the condition requiring the Collector ( N350 to make home visits for the purpose of scrutinizing the eligibility of the members. The government did not waive the condition of home visits for verification of the eligibility of members as per the LOL. 55.13. The Commission understands the difficulty, a Collector has to face in making personal home visits for the purpose of verifying the details of the applications for membership of Co-op. Housing Societies. It is too much to expect a high ranking officer like Collector who is over burdened with multifarious duties to move from door to door, like a census worker for the purpose of verifying the contents of the membership applications. But it must be noted at the same time that Dr. Vyas could have called the concerned applicants to his office for the said purpose or he could have at least deputed his subordinate staff to do that work. Dr. Vyas however does not seem to have adopted any such course. It may be pointed out that all the members whose evidence was recorded before the Commission, have unanimously stated that they were not called in the Collector's office nor any body from the Collector's office visited their houses for the purpose of verification. 55.14, After having understood the provisions about criteria of eligibility of applicants to become members of a Co-op. Housing Society to which government land is allotted and after going through the actual procedure, as stated by the Collectors, for the purpose of verification of the membership applications, we now take up the main issue i.e. issue no.6 and scrutinize the case of «1351 each member. For the sake of convenience, we propose to consider the cases of those 26 members first, to whom flats having areas of 1076 sq. ft. have been allotted. The residential flats start from the 5" floor and end with 30" floor. The order in which we take up the cases of members is from downstairs to upstairs. All the members were directed to file their respective affidavits concerning the issue of membership along with a compilation of documents giving following details: 1) Sr. No. of the member, 2) Flat No. allotted, 3) Date of membership application, 4) Membership application together with documents submitted, 5) Documentary evidence to show payments made towards the cost of the flat, 6) Bank statements for the relevant period, 7) If loan taken from banks/relatives/others, all documents pertaining thereto, 8) Income tax returns, three years prior to the purchase of flat till date, 9) Any other correspondence made by the member with Adarsh CHS or any other authority. A WING - FLATS WITH AREAS OF 1076 SQ.FTS. EACH. yD 56. As per his affidavit , Lt. Cdr. Gurmukh Singh Grewal, joined Indian Navy in 1963 and retired in November 2002 after completing almost 40 years of service. He has further stated in his affidavit that he disposed of his ancestral land at his native place and his flat in Jal Vayu Vihar at Kharghar, Navi Mumbai, In a352 para 22 of his evidence he has stated that previously he had advanced a loan of Rs. 17 lacs to Lt. Cdr. Chunilal who repaid that amount to him. He invested the entire amount including his pensionary benefits and savings for buying flat No. 501 in A wing in Adarsh CHS. It is seen that he applied for membership of Adarsh CHS by filling in the prescribed form Exh. MEM-486 on 10- 3-2000. In the said application, he has shown his monthly income as Rs. 21,500/- and the residential as well as occupational address as of New Delhi. It appears that the total price of the flat allotted to him was Rs. 79,03,340/-. He paid Rs. 45 lacs to the society and according to him he still has to pay an amount of Rs. 34 lacs but the society handed over possession of the said flat to him. He was granted membership of the society as per the letter dt. 10-11- 2008 Exh. MEM-503 addressed by the Collector to the Secretary of the Adarsh CHS. He has been allotted the above mentioned flat as per the society's letter dt. 1-10-2010 Exh. MEM-501 56.1. So far as the conditions of eligibility are concerned, Lt. Cdr. Grewal fulfills all the requisite conditions. The condition requiring 15 years residence in the State of Maharashtra is not applicable inter alia to serving and ex-servicemen. As regards his income group, it is seen that he is the only earning member of his family and having regard to his monthly income as on the date of the application ie. 10-3-2000 he would fall in A group of government servants as per 5‘ Pay Commission. ‘Therefore he is entitled to a flat having area of 1076 sq. ft. His evidence further shows that on the date of his application as also on the date on AL353 which membership was granted to him, he or his wife was not owning or having any flat within the jurisdiction of the Adarsh CHS i.e. Municipal area of Mumbai. He had already disposed of his, flat in Kharghar, Navi Mumbai, There is nothing on record to show that he or his wife was a member of any Co-op. Housing Society within the municipal limits of Mumbai. Taking these facts into consideration it will have to be held that Lt. Cdr. Grewal is eligible to become member of the Adarsh CHS and_ his membership has been rightly approved by the government. 2. Shri Jitendra Awhad, MLA, 56.2. Shri Jitendra Awhad has been a Member of the State Legislative Assembly since 2002. His. application for membership Exh. MEM-422 is dt. 8-6-2004 in which his residential address is given as “C-11, Vishwajeet Society, Naupada, Thane”. He has stated before the Commission that he was informed by the society on 2-9-2004 that his membership of the Adarsh CHS was approved by the government. He has been allotted flat No. 601 in A wing having area of 1076 sq. ft. He has stated that he has paid Rs. 79,26,256.50 towards the price of the said flat. He has produced a statement Exh. MEM-426 which shows the manner in which he raised the said amount. It is seen from the said statement that the first three amounts of Rs. 50,000, Rs. 5,00,000 and Rs. 2,00,000 (in all Rs. 7,50,000) were ing amounts were paid out of Jitnat Infrastructure Pvt. Ltd. of which paid by him on his own account whereas all the remai he was a Director and shareholder. Another important thing to _354 be noted about Shri Awhad is that he belongs to Hindu Vanjari caste which is a Nomadic Tribe. He has produced his caste certificate at Exh, MEM-423 along with a list of Scheduled Castes and Scheduled Tribes issued by the GOM which shows Vanjari community as Nomadic Tribe. Shri Awhad has stated that despite making full payment, he has not been given possession of the said flat. 56.3. As regards the conditions of eligibility, Shri Awhad seems to have fulfilled all the relevant conditions. He has been Member of the State Legislative Assembly for the last ten years. Although he has not specifically stated that he is a resident of Maharashtra at least for 15 years, still being an MLA the said condition does not apply to him. In the application he has stated his income to be Rs. 25,000 and it can be presumed that it is his monthly income though it is not so specifically clarified in the application form, ‘There is nothing on record to show that he or his wife owns any flat or plot within the jurisdiction of Municipal Corporation, Mumbai. He has stated that he is not a member of any Co-op. Housing Society in Mumbai or anywhere in the State of Maharashtra. Taking these facts into consideration Shri Awhad is found to be eligible for being a member of the Adarsh CHS and he has been rightly granted the membership. 2 j. an W. Khankhoje (Retd. 56.4. The application form Exh. MEM-249 filled in by Major Khankhoje is dt. 23-6-2004 and at the time of making the Guic t355, application he was 81 years old. His address in the application form is given as of Talegaon, Dabhade, Dist. Pune. The monthly income is shown to be Rs. 11,699 which appears to be his pensionary income. It is seen from the letter dt. 2-9-2004 addressed to Major Khankhoje (Retd.) by the society that his membership was approved by the government. Unfortunately, Major Khankhoje (Retd.) passed away on 9-9-2009. His son Capt. Kiran Khankhoje (AS. W. 26) has given evidence before the Commission and stated that his father was allotted flat No. 701 in A wing having 1076 sq. ft. area. However deceased major Khankhoje had not taken possession of the said flat. The evidence of his son Capt. Kiran Khankhoje shows that he is the nominee in respect of the said flat. The form of nomination dt. 12-12-2008 is produced at Exh. MEM-246 which shows the name of Capt. Kiran as the nominee. 56.5. It may be noted that as per the application form Exh. MEM-249 the monthly income of deceased Major Khankhoje (Retd,) was Rs. 11,699/- There is no document to show that he was getting any monthly income from other sources besides his pension. His son Capt. Kiran is silent on this point in his affidavit. Therefore going by the figure of income as mentioned in the application form, it is seen that deceased Major Khankhoje falls in the B group and as per Sr. No.3 in the statement given in the GR Exh. GOM-70, the permissible FSI allowable to him was only 650 sq. ft. and not 1076 sq. ft. There is nothing on record to show that either deceased Major Khankhoje or his wife had any flat or aneae 356 house in the area of Municipal Corporation, Mumbai. It is true that his son Capt. Kiran has stated that he owns flat No.C-201 in Jal Vayu Vihar, Powai, Mumbai since 1999. Besides he and his son Uday jointly hold flat No. B-1301 in the said society since 2003-2004. However, in para 6 of his evidence Capt. Kiran clarified that he is not a member of his father’s family. 56.6. The GR dt. 9-" has been issued under section 40 of the Maharashtra Land 1999 which was amended on 25-5-2007 Revenue (Disposal of Government Lands) Rules 1971 and the said Rules define the word “Family” in Rule 2(g) as under: (g). Family - other than a joint Hindu family, in relation to an individual for purposes of grant of land, includes husband, wife, minor sons, unmarried daughters and dependent brother, sister, father and mother whether or not they are separate in estate, but does not include brothers who are major and separate in estate, and the father or mother who is not dependent on such individual.” This definition is inclusive but it is pertinent to note that it does not include major son. Therefore Capt. Kiran Khankhoje who was more than 60 years of age on the date of giving evidence on 21-6- 2012 cannot be treated as a member of the family of his father deceased Major Khankhoje. Consequently, condition Nos. 4 and 5 in Annexure- A of the GR dt. 9-7-1999 do not affect the case of deceased Major Khankhoje. Similarly condition No.1 requiring 15 years residence in the State of Maharashtra is not applicable to357 deceased Major Khankhoje. It is true that he is survived by his wife Smt, Urmila, married daughter Smt. Usha Dharmadhikari and the son Capt. Kiran. But the nomination form Exh. MEM-246 is only in the name of Capt. Kiran. However, it is the choice and desire of the deceased to appoint his nominee. At any rate sucha nomination does not create any interest in Capt. Kiran in respect of the flat allotted to deceased Major Khankhoje. Capt. Kiran will be holding that flat as a trustee on behalf of all the heirs of the deceased. It is thus seen that deceased Major Khankhoje was eligible for being a member of the Adarsh CHS and he was rightly approved as such by the GOM. However, as pointed out above, he was not entitled to a flat admeasuring 1076 sq. ft. area since his entitlement was only of 650 sq. ft. area. 4) Smt. Seema Vyas, Commissioner, ESIS Govt. of Maharashtra. 56.7. Smt. Seema Vyas ( AS. W.No. 75) applied for membership of the Adarsh CHS as per her application Exh. MEM-704 dt. 10-4- 2004. Her evidence before the Commission shows that at that time she was working as Dy. Secretary to Govt. in GAD, Mantralaya and she was given information regarding Adarsh society by Dr. Jairaj Phatak who was then Secretary of Food and Civil Supplies Dept. She has further stated that she obtained a membership form from Shri Kanhalyalal Gidwani whom she was already knowing, In the application form she has stated her monthly income as Rs. 24,000 approximately. She has also mentioned in the application that she was not a member of any AU358 Co-op. Housing Society and that neither she nor her husband owns any house or flat in Mumbai. At this stage it may be pointed out that the husband of Smt, Seema Vyas is Dr. Pradeep Vyas (C.W.No.2) who was at the relevant time the Collector of Mumbai and as such he was responsible for processing her application form and forwarding the same to the GOM for approval 56.8, Smt, Seema Vyas has been allotted flat No. 801 in A wing admeasuring 1076 sq. ft. According to her, as per the GR of 1999 she was entitled to get a three bed room flat. She further stated that till the date of her evidence i.e, 27-7-2012 she has paid a total amount of Rs. 84,55,350 to the Adarsh CHS for the purchase of the flat. She has also explained that she borrowed a loan of Rs. 35 lacs from State Bank of India, Alibaug. In addition, she also took housing building advance of Rs. 7.5 lacs from the GOM. She claims to have paid Rs. 20,40,350 from her personal savings including arrears of 5" Pay Commission and Rs, 7.55 lacs from partial withdrawal of her PPF Account with the SBI. In addition she appears to have taken a personal short term interest free loan of Rs. 14,10,000 from her husband Dr. Pradeep Vyas. All these payments are reflected in the documents produced by her before the Commission. Smt. Vyas has stated that she has not yet taken possession of the flat allotted to her and that she has still to pay Rs. 5,47,822 to the society towards legal fees and other charges. It may be pointed out that Smt. Vyas informed the GOM by her letter dt. 19-7-2004 Exh. MEM-707 that she had applied for membership in Adarsh CHS. She also appears to have informed the GOM about am |359 the various loans she obtained from the bank. Exh. GOM-80 dt. 24-8-2004 is a memorandum issued by the R&FD approving the list of 51 members and therien the name of Smt. Vyas appears at Sr. No.26. 56.9. As regards the conditions of eligibility, the first condition in Annexure-A of the GR dt. 9-7-1999 that the applicant should be a resident of the State of Maharashtra for at least 15 years. This condition however carves out certain exceptions in the case of “Government members of parliament, members of legislative Assembly & Legislative Council & serving & ex-servicemen etc.” However, the first condition in Annexure A as given in the Marathi GR reads as under: “9. dem aa 2? fon ey 3 Tent ae teat sree unfest fasss wae Fee, Tee faerrarat/ faarrahep aeey omit wit sardten aad Hemet free aerate: eet sao wait a sear ony atone are.” This clearly indicates that the officers of IAS, IPS, IFS etc. who are the servants of Central Government but who have been deputed or allotted to the Maharashtra State are included in the exception. However in the English translation, which is obviously improper, misleading and poor translation, this material fact is missing. Moreover the words “Government members of parliament” aoccurring in the English version of condition No.1 is not proper as the members of parliament are never described as “Government members of parliament” . To us, it appears that after the word “Government” the word “Servants” is missing. We therefore prefer to go by the Marathi version of the conditions in Annexure Ato the GR dt. 1999. 56.10. The result is that Smt. Seema Vyas is covered by the exception carved out in condition no.1 in the Annexure of the said GR. Therefore even though she does not fulfill the condition of 15 years residence in the State of Maharashtra, she will have to be treated as eligible vis-a-vis condition No.1. It may be pointed out that Smt. Vyas was allotted to the State of Maharashtra in 1992 as is clear from the certificate dt. 11-5-2004 issued by the Under Secretary, GAD which is at page 3 of the file Exh. A-56. As such her total stay in the State of Maharashtra is not more than 12 years. But as seen above, her case is covered by the exception and therefore she must be deemed to have fulfilled condition no.1. 56.11. _ So far as the condition of income group is concerned, it is seen that Smt. Vyas being an IAS officer, and her monthly salary being around Rs. 24,000 at the relevant time falls in A group of government servants as per the 5‘ Pay Commission and her entitlement is FSI of 1076 sq. ft. area. It is further seen that neither Smt. Vyas nor her huband Dr. Pradeep Vyas owns any house or flat within the jurisdiction of Municipal Corporation, Mumbai nor do they have taken membership of any other Co-op. A361 Housing Society within the said local jurisdiction. There seems to be no other bar affecting her eligibility. Consequently, Smt. Vyas will have to be treated as_a person eligible to become a member of the Adarsh CHS and that she has been rightly approved as such as the member of the Adarsh CHS. 5. Brig. Avinash Chander Chopra (Retd.) 56.12. Brig. Chopra (A.S.W.No.18) has stated before the Commission that in 1997 he was posted in Mumbai as Adm. Comdt. in MG&G Area and at that time he came to know from Shri RC. Thakur who was then serving as SDEO about the Adarsh CHS. He has further stated that he applied for membership of the -1997 Exh, MEM-155. In the said application he has stated his monthly income as Rs. 30,000 Adarsh CHS by his application dt. 3 and added that the income of his spouse is nil. However, the undertaking dt. April 2000 Exh. MEM-156 given by him states his monthly income from all sources is Rs, 23,000. Brig. Chopra stated that he was not sure as to which of the two statements is correct. He admitted that the Adarsh CHS was not registered in 1997 and therefore the statement contained in his application Exh, MEM-155 that he has read the bye-laws of the society is incorrect. 56.13. Brig. Chopra was allotted flat No. 901 in A wing with a carpet area of 1076 sq.ft. He has stated that he made a total payment of Rs. 85 lacs approximately to the society but the society has not given him the final statement of accounts. He has ©362 submitted a statement containing details of payments (Exh. MEM- 157 colly.) made to the society. According to him, his son Abhinav paid the first item of Rs. 50,000 so also the items at Sr. 2, 4 and 7 each of Rs. one lac were paid by his son Abhinav. The second item of Rs. 2,50,000 was part of the retirement benefits which he claims to have received after his retirement in 2003. His further evidence shows that he borrowed Rs. 50,000 and Rs. one lac from his sister-in-law Smt. Madhu Chopra. Brig. Chopra has further stated that he owns a flat in Salunkhe Vihar, Pune and by selling the same he paid Rs. 6 lacs to the society. Besides he took a loan of Rs. 40 lacs from ICICI bank, Nagpur. He claims to have raised the amount of Rs. 2,30,000 from his share of the sale proceeds of his father-in-law’s property. It appears from the statement of accounts Exh. MEM-157 that he raised the remaining amount of nearly Rs, 22 lacs from other sources. He has stated that he was given possession of the said flat on 14-10- 2010. 56.14, Now turning to the eligibility criteria given in Annexure A of the GR dt. 9-7-1999, it is found that being a member of the Armed Forces, Brig. Chopra falls under the excepted category and as such he need not have stay of at least 15 years in the State of Maharashtra. As regards the income criteria, Brig. Chopra would fall in A group of Government Servants though there is some discrepancy in the figures of his income. At any rate his monthly income was more than Rs, 12,500. Therefore his entitlement is for a flat having FSI of 1076 sq. ft. His application wW\363 shows that neither he nor his wife or any member of his family owns any house or flat in Mumbai nor any of them is a member of any other Co-op. Housing Society. In view of this position, Brig. Chopra is found to be eligible to become a member of the Adarsh CHS. Consequently the approval given to his membership is proper and correct. 6. Lt Gen. Shantonu Choudhary(Retd.) 56.15. In the year 2003, Lt. Gen. Shantonu Choudhary (A.S. W. No.91) was Vice-Chief of the Army staff. His son Shri Samarjit was working in a private sector in Mumbai for a long time and therefore Lt Gen. Choudhary was looking for a flat in a Co-op. Housing Society in Colaba at a reasonable price. It is at this time that he came to know about the floating of Adarsh CHS for servicemen and ex-servicemen. His application for membership Exh. MEM-881 is dt. 23-8-2003 and it gives his residential address as New Delhi. He has stated in the application his annual income as Rs. 4 lacs approximately. His application further shows that he was not a member of any Co-op. Housing Society nor did he or any member of his family owned any flat or house in the area of operation of the Adarsh CHS. None of them was a member of any other Co-op. Housing Society in the city. 56.16. The letter dt. 2-9-2004 Exh, MEM-883 addressed to him by the Adarsh CHS shows that he was informed about the approval of his membership on 2-9-2004. Lt. Gen. Choudhary has been allotted flat No. 1001 in A wing having a carpet area of 1076 mL364, sq. fts. He has stated before the Commission that he has made a total payment of Rs. 88,36,066.49 to the society towards the price of the flat allotted to him. His evidence further shows that he raised this amount by obtaining a loan of Rs. 25 lacs from ICICI bank, Nagpur branch, Rs. 7,41,832.59 by borrowing a loan from his friend Shri Om Arora. In addition, he received Rs. 20 lacs from Shri Om Arora as per the letter dt. 18-8-2007 Exh. MEM-888. Lt. Gen. Choudhary also borrowed Rs, 8,00,898.88 from his son Shri Samarjit, Rs. 7,35,373.83 were received from his nephew Shri Ranjit Cboudhary and Rs. 8,00,898.88 were borrowed from his brother's son Shri Sandeep Choudhary. These details which are reflected in his account statement substantiate that he raised around Rs. 78 lacs from various sources. Lt. Gen. Choudhary has stated that he received possession of flat on 29-10-2012 as per the possession receipt Exh. MEM-892. 56.17. Regarding the eligibility of Lt. Gen. Choudhary, it is seen that he is covered by the exception stated in condition No.1 of Annexure A to the GR 9-7-1999 which requires 15 years residence in the State of Maharashtra. There is nothing on record to show that either Lt. Gen. Choudhary or any of his family members owned at the relevant time any house or flat or was a member of any other Co-op. Housing Society within the municipal limits of Mumbai city. It is material to note that Lt. Gen, Choudhary was a high ranking Army Officer, next only to the Chief of the Army Staff and he would fall under A group as per 5'* Pay Commission. Therefore the FSI which was permissible to \ om365 him was 1076 sq. ft. There is no bar which affects his eligibility. In view of this position, we hold that Lt. Gen. Choudhary was eligible to become member of the Adarsh CHS and has rightly been granted membership of the Adarsh CHS. Z Lt. Gen. Gurbaksh Singh Sihota(Retd.) 56.18. Lt. Gen. Sihota ( AS.W.No. 51) retired from the service of Army on 20-9-2004. He was posted in Pune from October 2001 till his retirement. He retired as GOC -in-C Southern Command, Pune. According to him, he happened to read a news item that a land belonging to the defence was going to be used for a private housing society. He therefore directed his staff to obtain full- fledged information regarding the status of the land and thereafter submitted a report that the land in question does not belong to the defence. Lt. Gen. Sihota made application for membership of Adarsh CHS (Exh, MEM-454) on 9-7-1999 wherein he has given his residential address as 22, Queens road , Pune. He has mentioned his annual income as being Rs. 5 lacs and that his spouse income as nil. He has also stated in the application that he or any member of his family is not already a member of any other Co-op. Housing Society and that they do not own a flat or house in the municipal area of Mumbai. 56.19. He has further stated that by a letter dt. 2-9-2004 Exh. MEM-456 the society informed him that his membership application was granted. He was allotted flat No. 1101 in A wing having carpet area of 1076 sq.ft. He has stated that he paid Rs. A366 88,05,366 to the society towards the price of the said flat. As regards the source of the said payment, he stated that it was his pension, retirement benefits, the allowances which he received by way of gallantry allowance and his own savings. In addition he borrowed a loan of Rs. 4,99,000 from his mother- in -law and Rs. 19 lacs from ICICI bank, Nagpur, He further stated that he foreclosed the said loan after selling his agricultural land at his native place in Dist. Jullender for Rs. 79,30,000. Lt. Gen. Sihota has stated that he did not get possession of the above mentioned flat and that at present he is residing in his wife's house at Panchkula in Haryana State. He stated that at the time of applying for the membership of Adarsh CHS he was not sure whether he would reside in Pune or Mumbai or Panchkula and therefore he applied for a flat in Adarsh CHS, It is seen from his evidence that he owns a flat at Gurgaon which was allotted through AWHO. In the cross examination made by Shri Dhiren Shah on behalf of the MOD it was tried to be pointed out that Lt. Gen. Sihota has violated the provisions of Defence Rules and Regulations. We will deal with that aspect while considering issue no.10, 56.20. As regards the conditions of eligibility, it may be noted that Lt. Gen. Sihota being an officer in the service of Army at the time of his application in 1999 and after his retirement in 2004 he is an ex-serviceman. Therefore he falls in the category of excepted persons mentioned in condition No.1 of the Annexure A of GR of 1999. As regards the other conditions, he falls in the A group of government servants as per the 5" Pay Commission. He aL367 was a very high ranking Army officer next to the Chief of the Army Staff. Therefore the permissible FSI of his entitlement is 1076 sqft. As stated above he or his wife does not own any house or flat nor any of them is a member of any other Co-op. Housing Society in the city of Mumbai. There is therefore no bar which affects his eligibility. Consequently it will have to be held that Lt. Gen. Sihota was eligible for being a member of the Adarsh CHS and he was rightly granted the membership thereof. 8 Shri P.V. Deshmukh, Dy, Secretary, UDD. 56.21. At the relevant time Shri P.V. Deshmukh (I.W. No. 9) was Deputy secretary, UDD in Mantralaya. He applied for membership of Adarsh CHS as per his application dt. 12-3-1999 Exh. 1W-99, Therein he has given his residential address as C-16 Gaurinandan, Almeda Road, Thane (West). In the said application his monthly income is shown to be Rs. 250312/- per month which appears to be a mistake. Shri Deshmukh is not from IAS cadre and he was only Dy. Secretary, UDD. Therefore his salary cannot be Rs. 250312 per month. It is quite possible that he has included his income from other sources in the said amount. It may be pointed out that in his affidavit/undertaking dt. 18-2-2003 Exh. IW-100 he has mentioned his total source of income at Rs. 25,312/-. He has stated in the application that he is not a member of any other Co-op. Housing Society nor does he or his wife own any house in the area of operation of the Adarsh CHS. In para 93 of his evidence Shri Deshmukh was asked as to how he applied for membership of Adarsh CHS on 12-3-1999 when neither LOI a368 nor LOA in respect of the land in question was issued in favour of the Adarsh CHS. Shri Deshmukh’s reply was that his application to the society is dt. 10-2-2003 and for this purpose he relied upon the society's letter dt. 27-12-2010 Exh. IW-98 wherein the society informed him “That there appears to be a mistake in almost all applications with regard to the date’. It is pertinent to note that the letter Exh. IW-98 was issued after the alleged scam in respect of Adarsh CHS broke out in the month of November 2010. The said explanation is not at all satisfactory for the simple reason that incorrect date may be possible in one or two applications but not “in almost all applications.” 56.22. The membership application of Shri Deshmukh was approved on 9-7-2004. Shri Deshmukh has stated that he has been allotted flat No. 1201 in A wing having 1076 sq. ft of carpet area and that he has taken possession of the said flat. In para 97 of his evidence he stated that he has made a total payment of Rs. 87,87,024 towards the price of the said flat. He claims to have taken a loan of Rs. 10 lacs from his son Shri Harsh Deshmukh who is employed ina private company. In addition, he also took a loan of Rs. 5 lacs from his wife. This explains the raising of an amount of Rs. 15 lacs only. Shri Deshmukh is however silent in his affidavit as well as in his evidence before the Commission about the source of remaining amount of Rs. 72 lacs. He has produced a statement giving summary of payments made by him to the Adarsh CHS. It is at Exh. [W-101 and it contains entries from 6-3- 2003 to 20-7-2010 totaling the amount of Rs. 87,87,024. He has A |369 also produced zerox copies of the bank pass book which shows the above mentioned entries of payment. However he has not produced a zerox copy of the front page of the pass book which gives the details regarding the bank, account number, name and address of the account holder etc. In the absence of this, it is not possible to conclude positively that the zerox copies of pass book at page 27 to 29 of file A-477 pertain to the bank account of Shri Deshmukth and no other person. 56.23, _ It may be pointed out that Shri Deshmukh has filed two affidavits before this Commission. The first is dt. 17-2-2011 and the additional affidavit on 13-6-2011 but both the affidavits are meticulously silent about the source of income from which he raised such a huge amount of nearly Rs. 88 lacs. In para 83 of his evidence Shri Deshmukh has however stated that he has made payment for the said flat right from the year 2005 to 2010 and that “I have paid the money out of my hard earned money.” We do not wish to go deep in this aspect. 56.24, Coming to the eligibility criteria, there is no dispute that Shri Deshmukh has been residing in the State of Maharashtra for more than 15 years, The certificate dt. 17-2-2003 issued by the Director, Town Planning, State of Maharashtra, Pune (Page 5 of the file A-55) shows that Shri Deshmukh entered into the services of the Town Planning on 30-5-1969. It is therefore obvious that since then till his retirement he was serving in the State of Maharashtra only. As regards the other conditions of eligibility, it is seen that neither Shri Deshmukh himself nor his AL370 wife owns any flat or house in the local area of Municipal Corporation of Mumbai. He or his wife is also not a member of any Co-op. Housing Society in the jurisdiction of the Adarsh CHS. Shri Deshmukh was in government service on the date when LOI was issued in favour of the Adarsh CHS on 18-1-2003 . There is nothing to show that he or his wife was allotted any plot at concessional rate within the local jurisdiction of the Adarsh CHS. Thus despite the above mentioned discrepancies and irregularities, the eligibility of Shri Deshmukh for being a member of the Adarsh CHS remains intact and the same has been rightly approved. Shri Deshmukh falls in group A of government servants as per the 5' Pay Commission and therefore his entitlement is of FSI of 1076 Sq. ft. 9._Shri_Krishnajirao_Rakhm Kupekar. 56.25. Shri Babasaheb Kupekar, (AS W. No. 69) as he was popularly known, was the Speaker of Maharashtra Legislative irao_Desaj Alias Babasaheb Assembly. Before that from November 1999 to November 2004 he was a Minister of State for Co-operation and at the time of giving evidence before the Commission on 25-7-2012 he was the Chairman of State Planning Commission. Unfortunately, Shri Kupekar is now no more. 56.26. He has stated that in 2005 Shri Kanhaiyalal Gidwani informed him that the Adarsh CHS was allotted a land. Shri Kupekar further stated that on earlier occasions also Shri AL371 Gidwani had asked him whether he would like to be a member of the said society and finally in 2005 Shri Kupekar decided to take membership of the said society. He applied for membership of Adarsh CHS as per his application dt. 5-8-2005 Exh. MEM-639. At that time he was the Speaker of Maharashtra Legislative Assembly and his residential address given in the application is 6 Sarang, Gen. Jagannath Bhosale Marg, Mumbai-21. The monthly and annual income stated in clause (4) of the application by him is Rs. 18,000 per month (Rs. 2,16,000 annual gross). However, in para 15 of his evidence before the Commission, Shri Kupekar admitted “The figure of Rs. 18,000 given by me against column (4) in my application form is not correct and it does not include my salary as Speaker of the Assembly as well as the rent received from my Powai flat’. The Commission feels very sorry for the incorrect, nay wrong information, given by Shri Kupekar regarding his actual income. A person who has adorned the high post of Speaker of the Legislative Assembly should not have made such a false statement as it does not befit him. 56.27. _ In clause (8) of the application form, which is “Name and address of any other Co-op. Housing Society wherein | am already a member”, the information supplied by Shri Kupekar is “No”. This is again a patently false statement made by Shri Kupekar and in para 4 of his evidence he admitted that the said information is not correct. Admittedly Shri Kupekar was allotted a flat admeasuring 500 sq. ft. situated at Hiranandani Garden, Powai from the discretionary quota of the Chief Minister and he A372 was holding that flat on the date of the application for membership of Adarsh CHS. Shri Kupekar has further stated that after getting permission from UDD he made a gift deed of that flat in favour of his daughter. It may be pointed out that on 5-8-2005 ie. on the very date on which he applied for membership of Adarsh CHS, Shri Kupekar wrote two letters to Shri Vilasrao Deshmukh, the then Chief Minister (Exh. AS-94-A and Exh. AS-94- B) seeking permission to dispose of his flat at Powai which was granted to him on 17-1-2001 from the discretionary quota of the Chief Minister. The reason mentioned in these two letters was his financial difficulty. It is however not known as to why he did not sell that flat to get over his so called financial difficulty instead of making a gift thereof in favour of his daughter. Anyway the information supplied by Shri Kupekar against clause (8) is false. For the same reason the affirmation made by Shri Kupekar in his affidavit dt. 5-8-2005 Exh. MEM-640 which he submitted along with his application and which reads, “That, |, Mr. Krishnajirao Rakhmajirao Desai alias Babasaheb Kupekar do not own any house in my name or in the name of my family members in the city of Mumbai and Mumbai Suburban District” is also false. 56.28. Shri Kupekar was allotted flat No. 1301 in A wing having carpet area of 1076 sq.ft. In para 8 of his evidence before the Commission he stated that he paid Rs. 1,07,03,340 towards the purchase of the said flat. He stated that he borrowed a loan of Rs. 36 lacs from Parshwanath Co-op. Bank Ltd. Vashi, New Mumbai and executed a mortgage deed of his flat in Adarsh CHS AL373 as security for repayment of the said loan. Shri Kupekar has not explained as to how he raised the remaining amount of Rs. 71 lacs. But it may be pointed out that his monthly income is much more than Rs. 18,000 as stated in his application Exh. MEM-638 because he did not include therein his salary and allowances which he was receiving as Speaker of the Legislative Assembly. Moreover, in a reply Exh. MEM-644 given to a notice dt. 7-7- 2011 given by the Dy. Director of Income Tax, Kolhapur he has stated as under: " Since we are only two members remaining in the family and our day to day expenses are minimum. On many occasions our expenses are met by the daily allowance received and by others (ie. party workers)". It is further seen from the said reply that Shri Kupekar and his family own 22 acres of irrigated agricultural land in which sugar cane, paddy, cashew, vegetables are grown. Shri Kupekar has produced copies of his bank statements at Exh. MEM-643 colly. Having regard to all these facts, it was not difficult for Shri Kupekar to raise the requisite amount for the purchase of a flat in Adarsh CHS. 56.29. Coming to the eligibility criteria, it may be noted that Shri Kupekar being a member of the Legislative Assembly falls in the category of excepted person who require minimum 15 years residence in the State. Even otherwise there is no dispute that Shri Kupekar has been a resident of this State for more than 15 years. As regards condition no.3 which is about the income criterion, Shri Kupekar falls in A group as per the 5 Pay Commission. However, so far as condition No.4 is concerned, KY374 Shri Kupekar did not fulfill the same for the simple reason that at the time of making the application he was owning a flat at Hiranandani Garden, Powai which was _ given to him in 2001 under discretionary quota of the Chief Minister. It is seen from the society's letter dt. 12-5-2008 (page 34 of the affidavit of Shri Kupekar) that Shri Kupekar was informed on the said date that the competent authority had approved his name to be enrolled as. a member of the Adarsh CHS. Shri Kupekar has stated in para 9 of his deposition that two years after the letter Exh. AS-14-B he sought permission of the CM to allow him to sell his Powai flat. It is seen from the letter dt. 19-11-2008 Exh. MEM-642 that Shri Kupekar was given such permission by the competent authority to transfer the said flat to his daughter Smt. Sunetra Rajendra Chavan. The above facts thus make it clear that on the date of the application ie. on 5-8-2005 as well as on the date when Shri Kupekar was granted membership ie. 12-5-2008, he was holding the flat in Hiranandani Garden at Powai. This fact clearly makes him ineligible to be a member of the Adarsh CHS since it is in contravention of condition No.4 of Annexure A of the GR dt. 9-7- 1999, It must therefore be said that the membership of Shri Kupekar was approved despite his above mentioned ineligibility. th 56.30. Vice Admiral Madanjit Singh (AS.W. No.49) was posted in Mumbai on 15-10-2003 and he retired from service in 2006. According to him he first came to know about the Adarsh CHS by the end of the year 2002. Thereafter on 14-12-2003 he submitted cae375 his application Exh. MEM-437 for membership of Adarsh CHS. Before the Commission he stated in para 3 of his evidence that the contents of the application were already filled in when he put his signature on the form. He further stated that the word “Mumbai” and the date “14-12-2003” mentioned at the foot of the application are not in his handwriting. In clause (4) of the application he has given his monthly income as Rs. 42,720. In clause No. (8) which contemplates “Name and address of any other Co-op. Housing Society wherein 1 am already a member" the information given by him is in the negative. However, para 4 of his evidence shows that at the relevant time he was a member of Powai Jal Vayu Vihar, Sector -A Co-op. Housing Society Ltd. of which he became member in 1996 and continued to be so till 2004. According to him, later on he sold that flat. His further evidence shows that he had entered into an agreement of sale in respect of the said flat on 1-12-2004 with Smt. Priya Arvind Dabir. A copy of the agreement of sale is produced at Exh. MEM-438. In para 5 of his evidence Vice Admiral Madanjit Singh admitted that the flat in Jal Vayu Vihar was in his possession and therefore the information “No” supplied by him while answering clause (8) of his application Exh. MEM-437 is incorrect. 56.31. He has further stated that by a letter dt. 2-9-2004 Exh. MEM-442 addressed by the society, he was informed that his request for grant of membership was allowed by the government. It appears that initially he was allotted flat No. 2401 in A wing but he exchanged the same for flat No. 1401 which was initially \ te376 allotted to Smt. LM. Kundan. Both the flats have same FSI i.e. 1076 sq. ft. According to Vice Admiral Madanjit Singh the total cost of flat No. 1401 was Rs. 87,55,564 and he has paid the entire amount of consideration. He has produced a statement of payments Exh. MEM-445 regarding the payments made by him to the society which shows payment of Rs. 87,55,564 made by him during the period from 25-10-2004 to 28-7-2010. He has stated that the amounts paid by him to the society from his pension account in SBI are his pension amounts. However, there are only three entries in the said statement showing a total payment of Rs, 18 lacs from his account with the SBI. The rest of the entries are in respect of bank accounts with HDFC bank. Besides there are two entries, one indicating payment of Rs. 10 lacs received from his wife Jyoti Dave from her account with UBI and the other of Rs. 4 lacs from the account of his daughter Simrit Singh with Syndicate bank. He has also produced copies of receipts of payments and bank statements. According to him, he has taken possession of the flat but he did not physically occupy the same. 56.32. As regards the first condition of eligibility, Vice Admiral Madanjit Singh was at the relevant time a top officer of the Indian Navy. He therefore falls in the excepted category of persons who do not require 15 years residence in the State of Maharashtra. Having regard to the salary of Vice Admiral Madanjit Singh, it is obvious that he falls in A group as per 5% Pay Commission and therefore the permissible FSI available to him is 1076 sq. ft. However, so far as the condition No.4 is concerned, it is clear N377 that Vice Admiral Madanjit Singh does not fulfill the same since at the relevant time he was holding a flat in Jal Vayu Vihar. In his affidavit /undertaking Exh, MEM-439 he has affirmed in clause (3) as follows: “That I do not own any house in my name or in the name of my family in the city of Mumbai or Mumbai suburban District.” But in para 15 of his evidence before the Commission he admitted “It is true that my said statement in my undertaking is incorrect as on the date of the undertaking I was owning a flat in Jal Vayu Vihar society.” It will thus be seen that Vice Admiral Madanjit Singh was not eligible to be a member of the Adarsh CHS and yet his membership was approved despite his ineligibility in contravention of condition no(4) of Annexure A of GR dt. 9-7- 1999, rig i Kumar 56.33. Cdr. A. Puran Kumar (AS. W. No. 14) is the son of Major General A.R. Kumar (C.W. No.4) who was GOC for MG&G Area at the relevant time. It may be recalled that Col. S.S. Jog (C.W. No.1) alleged that he wrote the letter dt. 5-4-2000 Exh. MOD-7 stating that the land in question falls outside the defence boundary. It may be pointed out that the Commission has not however accepted this part of the evidence of Col. Jog. 56.34. Cdr. A Puran Kumar initially applied for membership of Adarsh CHS on 25-6-1997 Exh. MEM-116-A and thereafter he made a second application on 10-3-1998 Exh. MEM-116. In both the applications he has given his. monthly income as Rs. 14,000 lace \378 and yearly income as Rs. 1,68 lacs. In the application he has stated that he was not already a member of any other Co-op. Housing Society and that no member of his family or his spouse owned a house or a building site in the area of operation of the Adarsh CHS. He further stated that he was allotted flat No. 1501 in A wing having three bed rooms and a total carpet area of 1076 sq. ft. According to him he got possession of the said flat as per the possession letter dt. 24-2-2010. He has stated that he paid Rs. 88,55,319 to the society by the time when he was given possession of the said flat. As regards the source of the payment he stated that it was raised from his own savings, his father’s savings and home loan from ICICI bank, Nagpur. In his compilation he has produced copies of the receipts passed by the society as well as bank statements and income tax returns. Prima facie there is nothing suspicious about his eligibility to become a member of the Adarsh CHS since he complies with all the requisite conditions. Consequently he will have to be held as eligible for being member of the Adarsh CHS and that his membership was rightly approved by the GOM. 12. Admiral Madhvendra Singh (Retd.) 56.35. Admiral Madhvendra Singh (AS. W. No. 11) entered into the Indian Naval service in 1961 and retired in July 2004 as Chief of the Naval Staff. In his affidavit filed before the Commission, he has affirmed that he was invited in 2001 to become a member of |378 the Adarsh CHS, At that time he was serving as Vice Chief of Naval Staff at New Delhi. He applied for membership of Adarsh -2002 Exh. MEM-79 in which he CHS as per his application dt. 9. has given his monthly income as Rs. 46,000 and that of his spouse as nil. He has further stated inthe same application that he was not already a member of any other Co-op. Housing Society nor did he or any member of his family or spouse was a member of any Co-op. Housing Society within the area of operation of the Adarsh CHS. Admiral Madhvendra Singh further stated that he was allotted flat No. 1601 in A wing having carpet area of about 1076 sq. ft. He claims to have paid Rs. 81 lacs as cost of the said flat. He raised the said amount by borrowing a loan of Rs.34,19,336 from the ICICI bank, Nagpur branch. His evidence further shows that he and his son Bhriguraj Singh applied for a loan to the SBI which approved a loan of Rs. 72 lacs on giving security of the flat which would be allotted to him. It is however not known as to how much amount was actually disbursed by the SBI to him towards the loan. Admiral Madhvendra Singh has filed a compilation of documents which contain copies of the bank statements, income tax returns and other documents. According to him on 29-6-2010 the outstanding amount due from him to the society was Rs. 8 lacs. 56.36. Admiral Madhvendra Singh has stated in para 7 of his evidence that by his e-mail dt. 30-10-2010 he expressed his desire to resign from the membership of the society with immediate effect and requested for refund of the money paid by AL | /380 him. In the same e-mail he made a further request that the flat allotted to him may be allotted to Kargil hero/widow nominated by the government. He made the similar request by his letter Exh, MEM-87 dated 30-10-2010. In his evidence he has further stated that it was his conditional offer to resign and the reason for the offer to resign was that the was given to understand that the society was meant for Kargil War heroes but later on it turned out that it was not so. Therefore he offered to resign from the membership of the society on condition that the flat allotted to him should be given to a Kargil War widow. He further stated that the society did not repay the money and therefore he withdrew his offer from the membership by his letter dt. 5-8-2011 Exh. MEM-88. Thus he continues to be a member of the Adarsh CHS. 56.37, So far as_ the conditions of eligibility are concerned, Admiral Madhvendra Singh seems to fulfill the same. Being a Naval Officer of the highest rank, he is covered by the exception in condition No.1 of Annexure A which requires 15 years of minimum residence in the State of Maharashtra. His evidence shows that neither he nor his spouse or any member of his family owns a house or flat in the city of Mumbai nor any of them is a member of any other Co.op Housing Society in Mumbai. There is nothing on record which renders him ineligible. Therefore there is no difficulty in concluding that Admiral Madhvendra Singh was eligible to become a member of the Adarsh CHS and that his membership was rightly approved by the GOM.381 13. Shri Suresh Prabhu 56.38. Shri Suresh Prabhu (AS.W. No.74) was a member of the Lok Sabha during the period from 1996 to 2004 and he was returned to the Lok Sabha on Shiv Sena ticket. He was also a Cabinet Minister in the Union Government and was _ holding five different port folios such as industries, environment & forests, chemicals and fertilizer, power and additional charge of heavy industries. He has stated that he was holding the portfolio of Ministry of Environment & Forests during the period from 1998 till mid1999, Shri Prabhu has stated that Shri Kanhaiyalal Gidwani informed him that a co-op. housing society was coming up in Colaba area and therefore he applied for membership of that society. It may be pointed out that Shri Gidwani himself was a MLA elected on Shiv Sena ticket. Moreover it was consistent with the idea of Shri Gidwani of “Like minded persons’ to offer Shri Prabhu a membership of Adarsh CHS because having once held the port folio of environment, Shri Gidwani must have thought that Shri Prabhu would be of much help for securing CRZ clearance to the society. Shri Prabhu’s application for membership is at Exh. MEM-696 and it bears a date “28-7-06" . Rest of the contents of the application are typed one. Shri Prabhu is unable to state whether the said date mentioned in the application form is in his hand writing382 56.39. Shri Prabhu has stated his annual income as being Rs. 3,43,750 with a rider “taxable income p.a. as per A.Y. 2003-04". In clause No. 8 of the application which is about “Name and address of any other Co-op. Housing Society wherein I am already a member", the information given is “N.A.” meaning thereby “Not applicable". The information in respect of clause (9) is in the negative. This clause contemplates whether the applicant member or his spouse is a member of any other Housing Society in the area of operation of the society and whether the society has allotted a flat. Similarly the information given by Shri Prabhu with regard to clause (10) namely “Whether the member or his or her spouse owns a house or a building site in the area of operation and the details of such house or building site” is in the negative 56.40. _ In his application Shri Prabhu has given his residential address as “B-21, Sadhana, 16% Road, Khar (west), Mumbai 400 052.” In para 5 of his evidence before the Commission he has however clarified that the said flat belongs to his mother Smt. Sumati Prabhakar Zantye. The memorandum of transfer of share Exh. MEM-697-A records that the said flat was transferred in the name of the mother Smt. Sumati and wife Smt. Uma of Shri Suresh Prabhu. Shri Prabhu has however clarified that his mother was not able to attend the meetings of the society and therefore she had requested the society that she would be represented by her daughter-in-law Mrs. Uma. According to Shri Prabhu this was only an authorization given to his wife by his mother to attend the meetings of the society. The evidence of Shri a \383 Suresh Prabhu further shows that his mother Smt. Sumati passed away two years back and under a will executed by her, the said flat at Khar has been bequeathed to his son Shri Ameya. We are satisfied with the explanation given by Shri Prabhu in this respect and we are of the opinion that Shri Prabhu has not contravened the condition nos. 3 and 4 of Annexure A of the GR dt. 9-7-1999. 56.41. Shri Suresh Prabhu has been allotted flat No. 1701 in the A wing of the Adarsh CHS having carpet area of 1076 sq. ft. The total amount paid by him to the society is Rs. 87,87,256. As regards the source of this amount, Shri Prabhu has produced a copy of this statement of payments made to the Adarsh society Exh. MEM-701. According to him the first two items of Rs. 50,000 and Rs. 5 lacs respectively are paid from his own account with ICICI bank, Connaught place, New Delhi. 56.42. The third item of Rs. 24,74,746 is the amount which he borrowed from the ICICI bank, Nagpur branch under the arrangement made by the society for a group loan. In para 14 of his evidence Shri Prabhu has further stated that item nos. 4 to 11 in the said statement are from his own account with ICICI bank, Nariman Point, Mumbai. He has stated that the source of his income for making the said payment was his professional income including the consultancy fees paid to him by the United Nations’ Industrial Development Organization. It may be pointed out that Shri Prabhu is a Chartered Accountant. The documents filed in his compilation explain the source of the payments made by him and we have no doubts about the same. uh384, 56.43. Shri Prabhu has not taken possession of the flat allotted to him. According to him, the society demanded more amounts over and above the amounts paid by him but he had not paid the same. As regards the compliance of the conditions of eligibility, the first condition in Annexure A of the GR dt, 9-7-1999 is the requirement of at least 15 years residence in the State of Maharashtra. Shri Suresh Prabhu ceased to be a Member of the Parliament in the year 2004. The application for membership of Adarsh CHS was made by him in the year 2006. Therefore he cannot avail of the benefit of the exception stated in condition no.1. However we have on record acertificate dt. 21-7-2004 Exh. MEM-699 which was issued by the Modern Co-operative Housing Society, Khar (W), Mumbai to his mother Smt. Sumati wherein it is certified that “She is living with her son Shri Suresh Prabhakar Prabhu for the last 45 years”. This according to us is sufficient to show that Shri Prabhu fulfills the first requisite condition. As regards the other conditions, it is seen that neither Shri Prabhu nor his wife Smt. Uma owns any flat or house within the area of operation of Adarsh CHS. As already pointed out, Shri Prabhu has been allotted a flat having 1076 sq.ft. area. However, he is not a government servant who could have been counted in A group of government servants as per the 5" Pay Commission. After 2004 he is a private person and as per para 4 of the GR dt. 25-5-2007 Exh. AS-78 FSI of 1076 sq, ft is not permissible for persons other than government servants. even though their income may be above Rs. 20,000 per month. Therefore although Shri Prabhu is eligible to become a member of the Adarsh CHS, and although his A385 membership has been rightly approved by the GOM, still it will have to be noted that he is not entitled for allotment of a flat having more than 650 sq. ft. In this connection it may be pointed out that allotment of flats is not made by the GOM but by the society itself. 14. ri J.M. nk forme! ite Pre Dire 56.44. Shri Abhyankar (AS.W. No.23) was the State Project Director for Sarva Shiksha Abhiyan and he retired in 2006. In his evidence before the Commission he has stated that while at Nagpur he got acquainted with Shri R.C. Thakur and other Army personnel from whom he came to know about the Adarsh CHS. He stated that the Army personnel used to approach him for getting admissions in Schools and Colleges. He applied for membership of Adarsh CHS as per his application dt. 5-3-1998 Exh. MEM-211. It appears that at that time he was Divisional Chairman of SSC & HSC Board. Against clause (4) in the said application, Shri Abhyankar has stated his monthly income as “Basic Pay Rs. 15,350". The income of the spouse is stated to be nil. In para 5 of his evidence Shri Abhyankar stated that his total pay at the relevant time was around Rs. 25,000. Asked as to why he did not state that amount in the application form, Shri Abhyankar stated, “I did not feel it necessary to mention my total pay in the application form". 56.45. Shri Abhyankar has stated in para 6 of his evidence that 2004, He he was granted membership of the Adarsh CHS on 2 dy386 was confronted with the letter dt. 16-12-2010, particularly Schedule A thereof Exh, MEM-212 colly. wherein he appears to have stated that his membership was approved by the Collector on 4-6-2006. But before the Commission Shri Abhyankar stated that the said date is not correct and that it should be 4-7-2004, Shri Abhyankar stated that the society was in need of a Scheduled Caste member and that was one of the reasons for which he applied for membership. The second reason, according to him, for making the application was that he was in government service. Shri Abhyankar has been allotted flat No. 1801 A wing having carpet areaof 1076 sq. ft. Para 7 of his evidence shows that Dr. Thampi who is also a member of the Adarsh CHS was not allotted a flat admeasuring 1076 sq. ft. and therefore he filed a civil suit no. 2522 of 2009 in the City Civil Court impleading Shri Abhyankar as a defendant and praying for allotment of a bigger flat. Shri Abhyankar has stated that the society informed him by the letter dt. 2-9-2004 Exh. MEM-213 to deposit his share of cost of land amounting to Rs. 18,95,000. However, neither in his affidavit nor in his evidence before the Commission Shri Abhyankar has disclosed the total cost of the flat allotted to him. But having regard to the cost of other flats in the same building having same area, it can be taken that it must be around Rs. 88 lacs, 56.46. As regards the source of payments made to the Adarsh CHS, the evidence of Shri Abhyankar is to the effect that he took a loan of Rs. 19 lacs from the ICICI Bank, Nagpur branch, Rs. 6 lacs tL387 from Nirmal Education Society and Rs. 4 lacs from one Mrs. Arunaben Desai. It appears that Shri Chitrasen who is the son of Shri Abhyankar is the trustee of Nirmal Education Society. It is however not known under what provision and with whose permission the said Education Society could lend a loan of Rs. 10 lacs to the father of its trustee. It is seen from the statement Exh. MEM-225 that Shri Abhyankar received the total retiral benefits of about Rs. 14 lacs. This explains the source of income to the extent of Rs. 43 lacs. However, the evidence of Shri Abhyankar with regard to the source of the remaining amount is not clear and satisfactory. It is of very doubtful nature. Moreover, he does not seem to have informed that the government that he was going to but a flat in the Adarsh CHS, as is required by the Service Rules. We shall deal with this aspect while discussing issue no.10. 56.47. So far as the conditions of eligibility are concerned, Shri Abhyankar seems to have fulfilled the same since he has been residing in the Stateof Maharashtra for more than 15 years. Neither he nor his wife Mrs. Nirmala owns any flat or house or a house site in the city of Mumbai. Having regard to his monthly salary at the relevant time, he falls in A group of 5 Pay Commission and thus his entitlement is of 1076 sq. ft of FSI. There is nothing on record to show that his eligibility to become a member of the Adarsh CHS was affected and barred by any other fact. Under these circumstances Shri Abhyankar must be held to be eligible to become member of the Adarsh CHS and that he has been rightly granted membership of the said society. at388 1, rang Pawar, Former Chief Commis: of Income Tax. 56.48. Shri Arun Pawar (AS, W.No.16) applied for membership of Adarsh CHS on 30-1-2000 as per his application Exh. MEM-131. At that time neither the said society was registered nor any plot was allotted to it. Therefore, his application was premature to be entertained by the society. But any way the society appears to have accepted his application form, Shri Pawar has stated his annual income is Rs. 6 lacs. He has further stated that earlier he had applied for membership of two other Co-op. Housing Societies in Mumbai but they did not materialize. It appears that he was knowing Shri Kanhaiyalal Gidwani who later on introduced him in the Adarsh CHS. Shri Pawar was allotted flat No. 1901 in A wing having carpet area of 1076 sq, ft. The total consideration paid by him for the said flat was of Rs. 93,78,697 The possession receipt Exh. MEM-143 shows that he got possession of the said flat in April 2010 56.49. According to Shri Pawar he obtained a loan of Rs. 20,75,250 from ICICI bank, Kandivli branch against the security of his flat in Adarsh CHS. He has produced a copy of his own letter dt. nil at page 4 of the CBI file (file No. A-138) which shows that he borrowed Rs. 39,53,482 from the Union Bank and Rs. 33,82,282 from Dr. M.A. Nikam, Mrs. Shalini Nikam and Mrs. Nema Zanjale who are his close relations. Shri Pawar has produced a statement containing details of payments made to the Adarsh CHS at Exh. MEM-138. In the said statement his daughter &\y389 Dr. Reshma is described as Associate member of the Adarsh CHS. As per this statement Shri Pawar has paid Rs. 46,25,215 whereas his daughter Dr. Reshma has contributed Rs. 47,53,482. Thus the total payment comes to Rs. 93,78,697. The source of the payments made by Shri Pawar is stated to be a loan of Rs. 1,96,000 from Income Tax Co-op. Bank, Rs. 3 lacs from SBI Satara, Rs. 20,75,215 from ICICI Bank, Rs. 8 lacs from Union Bank, Rs. 6,63,000 from withdrawal of PPF account and Rs. 5,91,000 from out of his own savings. 56.50. As regards the conditions of eligibility, Shri Pawar seems to have complied with all the relevant conditions. In his declaration/affidavit dt. 5-3-2003 he has affirmed that he is residing in the State of Maharashtra for more than 20 years. In his application he has stated that he does not own any flat or a house in the city of Mumbai and that he is not a member of any other Co- op. Housing Society. So also his spouse does not own any house or flat in Mumbai and that she is not a member of any other Co-op. Housing Society in the city. There is nothing on record to indicate any deficiency which can debar him from being a member of Adarsh CHS. Hence Shri Pawar will have to be held as eligible to become member of the said society with entitlement of 1076 sq. ft of FSI and that his membership has been rightly approved by the GOM.390 16. Major Ashish Tandon 56.51. On behalf of Major Ashish Tandon, (AS.W. No. 42) his father Col. (Retd.) Soami Dayal Tandon, who holds a Power of Attorney for him Exh. MEM-369, has filed his affidavit dt. 28-2- 2011. However, before the Commission Major Ashish Tandon appeared in person to give evidence. He stated that the contents of the affidavit filed by his father are true and correct. It appears that initially Col. $.D. Tandon submitted the application form dt. 1- 5-1999 Exh. MEM-370 in his name. But later on 20-2-2003 he submitted a letter Exh. MEM-371 to the Chief Promoter of the Adarsh CHS requesting “Due to certain family problem I would like to opt the name of my only son Capt. Ashish Tandon who is also serving in the Indian Armed Forces. Deposit of Rs. 50,000 with the society may be considered as a payment made on behalf of the Capt. Ashish Tandon.” It is further seen that on the very day Capt. Ashish Tandon (as he then was) submitted his own application Exh. MEM-372 in the prescribed form. Therein he has given his monthly income as Rs. 16,282 p.m. He has also stated that his spouse income is nil, With regard to clause (8) “Name and address of any other Co-op. Housing Society wherein I am already a member” no information is given either positively or negatively but only a horizontals line is drawn against that clause. However, the information on clause (9) and (10) is in the negative indicating that neither he nor his spouse is a member of any other Co-op. Housing Society within the area of the operation of Adarsh CHS x391 and that neither he nor his spouse own a house or a building site in the area of operation of said Adarsh CHS. 56.52. Major Ashish Tandon has stated that by its letter dt. 2-9- 2004 Exh. MEM-375 he was informed that membership was granted to him. He further stated that he has been allotted flat No, 2001 in A wing having carpet area of 1076 sq. ft and that the total amount paid by him to the society towards its price is Rs. 79,35,611 Later on he stated that the total amount paid by him to the society is Rs. 87,36,611. He further stated that he took a loan of Rs. 22,68,000 from the State Bank of India, Churchgate branch and a loan of Rs. 8 lacs from ICICI bank , Nagpur ranch. Major Ashish Tandon has further stated that his father sold his own flat at Nerul for Rs, 10 lacs while he sold his own flat at Gurgaon for Rs. 26 lacs. In this way the amount required to buy a flat in the Adarsh CHS was raised. A statement containing details of payments is produced at Exh. MEM-377 which includes Provident Fund withdrawal Rs. 4 lacs, amount received by inheritance from Maternal Grant-mother Rs. 7 lacs, loan from cousin Ra. Two lacs and personal savings and retiremental benefits ( of his father) Rs. 15,68,611. All these amounts make a total of Rs. 87,36,611. All these payments are reflected in the bank accounts and other documents produced on record. According to Maj. Ashish Tandon he had made an excess payment of Rs. 7,99,000 to the society but the same was repaid to him. He further stated that he got possession of the above mentioned flat in October 2010. A392 56.53. Major Ashish Tandon thus fulfills all the requisite conditions of eligibility and therefore it must be said that he was eligible to become a member of the Adarsh CHS and he has been rightly granted the membership of the said society. 12Z_Cmde. Gopal Bharti (Retd.). 56.54. Cmde. Gopal Bharti (AS.W.No. 58) submitted his application for membership of Adarsh CHS on 6-3-1999 Exh. MEM-528. The application mentions that he belongs to a back ward class. He has produced his Caste Certificate dt. 26-9-2002 which is at page 11 of the file Exh.A-SS and the same mentions his caste as “Gosavi’. In the said application, Cmde. Bharti has stated his income as Rs. 21,000 which appears to be his monthly income and the income of his spouse as nil. The information on points nos, (8), (9) and (10) is however in the negative. In addition he has stated that at the time of applying for membership of Adarsh CHS neither he nor his family members had any residential flat in Mumbai. It appears that he has been allotted flat No. 2101 inA wing having carpet area of 1076 sq. ft. In para 7 of his evidence he has stated that the total amount paid by him for the said flat is Rs. 88,04,757. He has given a statement Exh. MEM-532 colly. disclosing the source of finance for the said flat. As per the said statement, the first amount of Rs. 44,06,576 is the amount of pension and commuted pension. This statement mentions two more amounts, one of Rs. 36 lacs from HDFC bank Delhi and Rs. 27 lacs from ICICI bank, Nagpur branch. Cmde. Bharti has stated that he borrowed a loan of Rs. 1,64,792 from his elder brother AL393 Shri Ashok Bharti and Rs. 50,000 from his niece Ms. Smita Giri who is a Pilot in Jet Airways. His evidence shows that he owns two flats, one at Gurgaon and the other at Noida. He gets rent in respect of both the flats. The facts stated by Cmde. Bharti are not disputed in his cross examination. Moreover, the documents produced by him before the Commission substantiate his claim of being financially capable of buying a flat in the Adarsh CHS. 56.55. Coming to the eligibility criteria as per the GR dt. 9-7- 1999, it may be noted that Cmdr. Bharti being a Naval Officer falls in the excepted category of persons who do not require minimum 15 years residence in the State of Maharashtra. As regards conditions No, (8), (9) and (10), he has stated that neither he nor his spouse owns any flat or house within the Municipal area of Mumbai. So also neither he nor his wife is a member of any other Co-op. Housing Society. No circumstance is pointed out which would render him ineligible. We, therefore, hold that Cmde. Bharti was eligible to become a member of the Adarsh CHS and he his membership has been rightly approved by the GOM. 18._Lt Gen, (Retd.) P.K. Rampal. 56.56. Lt. Gen P.K. Rampal (AS. W.No. 17) took over as Commander Mumbai Sub Area from Brig. T.K. Kaul from 5-1- 2000 and he was holding that post till 12-4-2002. Before the Commission he has stated that he became aware of the Adarsh CHS for the first time in February 2000. In para 3 of his evidence he has however stated that he applied for the membership of the bl394 said society on 12-4-1998 (Vide Exh. MEM-146), Later on he tried to correct himself by stating that the date put on the said application is not correct. According to him he did not put any date on the application when he signed it because one Col. Bakshi told him that the society would fill up the date in the application. 56.57. At this stage the Commission thinks it necessary to observe that this is not the only case regarding discrepancy of date. There are several cases wherein the dates were subsequently written. Many members whose evidence was recorded have stated that the date put below their applications is not in their handwriting. We have more than one copy of the original applications of the applicant members and we have most commonly noticed that one copy bears a particular date whereas the other copy does not bear any date. There is therefore ground to believe that the applicant members were advised to leave the space of the date blank which has given scope for manipulating suitable dates of the applications. 56.58. In his application Brig, P.K. Rampal (as he then was) has stated his annual income as approximately Rs. 3,60,000 and that of his spouse as nil, The information on clause (8),(9) and (10) regarding ownership of flat or house or membership of any other Co-op. Housing Society within the area of operation of the Adarsh CHS is given as nil. Brig, P.K. Rampal has annexed his affidavit/undertaking dt. 20-2-2003 to his application wherein he has stated his monthly income as Rs. 33,328. It appears that by that time he was promoted to the rank of Major General. Before aL395 the Commission he has stated that he was allotted flat No. 2201 admeasuring 1076 sq. ft. in A wing. He has filed a statement Exh. MEM-150 containing details of payment of cost of flat in the Adarsh CHS which shows that payments were made during the period from 9-9-2004 to 15-7-2010 and the total payment made by him amounts to Rs. 86.61 lacs. He has also produced copies of the bank statement which reflect these payments. As regards the raising of finance for buying the said flat, he has stated that the ICICI bank, Nagpur branch sanctioned a loan of Rs. 59 lacs out of which Rs. 50.40 lacs were actually disbursed to him. Lt. Gen. Rampal has further stated that in addition to his salaried income he was getting agricultural income of Rs. 48,000 per year. His evidence further shows that he was a member of a group housing society in Gurgaon but he cancelled his membership and in January 2003 he withdrew his entire amount of Rs. 6.50 lacs which he invested for making initial payment for a flat in the Adarsh CHS. All these facts clearly show that Lt. Gen, Rampal was financially capable of buying a flat in the Adarsh CHS. 56.59. In his affidavit filed before the Commission on 9-3-2011, Lt. Gen. Rampal has stated that he is one of the persons named in the FIR dt. 29-1-2011 registered by the CBI. The CBI has after completing the investigation of the case filed a charge sheet against 14 accused on 4-7-2012 with a remark that no evidence has come on record to indicate the involvement of Brig. P.K. Rampal and Brig. R.C. Sharma and therefore they have not been charge sheeted. anh396 56.60. As regards the conditions of eligibility, Lt. Gen. Rampal fulfills all the requisite conditions. There is nothing on record to show that his eligibility is affected by any other fact. He or his wife does not own any flat or house within the area of jurisdiction of the Adarsh CHS. Both of them are not members of any other Co-op. Housing Society within the municipal area of Mumbai. Therefore Lt. Gen. Rampal is eligible to become a member of the Adarsh CHS and his membership has been rightly approved by the GOM. Dr_D iki indian F s 56.61. On behalf of Dr. Devayani Khobragade, (AS. W. No.44)her father Shri Uttam Khobragade who was the General Manager of BEST, filed his affidavit dt. 28-2-2011 stating that Dr. Devayani was posted in Indian Embassy at Berlin and that he holds a Power of Attorney on her behalf. The application form for membership of Adarsh CHS was also filled in and signed by him on his daughter's behalf. It is dated 29-7-2004 Exh, MEM-392. In the said application her annual income is stated to be Rs. 1.80 lacs. The information with regard to clause (8) ie. “Name and address of any other Co-op. Hsg. Society wherein I am already a s stated to be nil. The caste certificate dt. 26-6-1991 membei produced at page 6 of the file A-56 shows that Dr. Devayani is ‘Mahar’ by caste. She therefore belongs to a reserved category. In para 4 (a) of his affidavit dt. 26-7-2012 Shri Uttam Khobragade has stated that the information given in the application form is as on 18-1-2003. He was therefore asked to clarify as to why he did Ay397 so when the application form is dt. 29-7-2004. The reply given by Shri Khobragade is that the society told him that the information should be as on 18-1-2003. It may be noted that it is on this date that LOI was issued in favour of the Adarsh CHS. 56.62. Before the Commission both Dr. Devayani (AS.W.No.44) and Shri Uttam Khobragade (IW. No.10) have given evidence. Dr. Devayani has been allotted flat No. 2301 admeasuring 1076 sq. ft. in A wing. In none of his affidavits dt. 28-2-2011 , 27-7-2011 and 26-7-2012 Shri Uttam Khobragade has stated about the price of the said flat. So also he and his daughter Dr. Devayani are silent in this respect when they gave their oral evidence. However a copy of the ledger account of the Adarsh CHS in respect of Dr. Devayani for the period from 1-4-2008 to 31-3-2011 is produced at page 17 of her compilation of documents, file A-418 and it shows total payment of Rs. 1,10,367,363.72. Both of them have also not stated anything about the source of money for buying the flat in the Adarsh CHS. However the balance sheet Exh. MEM- 400 annexed to the income tax return for the year 1-4-2005 to 31-3-2006 discloses that Dr. Devayani is a well to do person since she owns agricultural land, flats in New Delhi, Aurangabad, Thane, Pune and investments of large amounts. It appears that no loan was obtained by her for buying the flat in Adarsh CHS. 56.63. Dr. Devayani has been in the service of Ministry of External Affairs, New Delhi since 1999 and in July 2004 she was posted in Germany. However, a certificate dt. 1-9-2004 issued by the Tahasildar & Executive Magistrate, Mumbai is produced at am398 page No. 13 of the file A-56 which states that the residence of Dr. Devayani during the period of 20 years prior to 31-8-2004 has been more than 15 years. It is seen that this certificate was obtained for getting allotment of a flat in MHADA of which her father Shri Uttam Khobragade was the Managing Director. Any way there is no difficulty in holding that Dr. Devayani fulfills the requisite condition of 15 years residence in the State as required by the GR dt. 9-7-1999. 56.64. As regards the information on clause (8) in the application form of dr. Devayani the same is discrepant. We have on record two copies of her applications, both dt. 29-7-2004 and signed on her behalf by her father Shri Uttam Khobragade. The application form Exh. MEM-392 gives the information on clause (8) as nil whereas the application form Exh. MEM-392-A gives the information as Meera Co-op. Hsg. Society, CTS No. 1(pt), S.No. 41, Oshiwara Next to Oshiwara Police Stn. Jogeshwari (W), Mumbai 400 012. There is however no dispute of the fact that at the relevant time Dr. Devayani owned flat No. 1701 in Meera Co-op. Hsg. Society, Oshiwara which was a flat allotted by MHADA. Before the Commission Dr. Devayani stated that in 2004 she did not own any flat in Meera CHS and that she acquired flat No. 1701 in that society in the year 2005. This statement made by her is obviously false because in the application Exh. MEM-392-A dt. 29-7-2004 against clause No. (8) she has stated “I am a member of the above society, but | will resign from the society when | am AL399 allotted a flat in your society”. It is further seen that the flat in Meera CHS was transferred on 30-9-2008 by Dr. Devayani in favour of Shri Sidharth Basu under the sale deed Exh. MEM-395 for a handsome price of Rs. 1.90 crores. In clause (II) of the said sale deed it is stated as under: " The transferor herein has been admitted as the bonafide member of the above said society as certified vide the allotment letter dated 5‘ July 2004 and subsequently also allotted five fully paid up shares of Rs. 50/- issued under Share Certificate No. 90 dated 5% September 2002, bearing distinctive Nos. 446 to 450 (both inclusive).” This clearly shows that Dr. Devayani was owning a flat in the Meera CHS on the day ie. 29-7-2004 when application Exh. MEM-392 was made on her behalf for membership of Adarsh CHS. She continued to be member of Meera CHS till she disposed of that flat on 30-7-2008 under the sale deed Exh. MEM-395. In this connection her father and holder of Power of Attorney Shri Uttam Khobragade has stated in para 8 of his evidence as follows: “The membership of my daughter to Adarsh CHS was approved on 12-5-2008. On that day she was still a member of Meera CHS. I sold her flat in Meera CHS on 30-7-2008". It is thus obvious that there is breach of the eligibility condition mentioned at clause (4) ands (5) of Annexure A to the GR dt. 25-5-2007 by Dr. Devayani which renders her ineligible for becoming member of the Adarsh CHS. Consequently it will have to be held that her membership has been approved though she was ineligible. Al (\400 lan r Collector, Mumbai 56.65. Smt. 1.A. Kundan (AS.W. No.98) became Collector of Mumbai city District on 24-4-2007 and continued to hold that 2010. In her affidavit dt. 15-2-2011 she has stated that examining the eligibility of the members of Co-op. Housing post till 5-5 Societies to which government lands in Mumbai are granted is one of the duties of the Collector, Mumbai. She has referred to the GR dt. 25-7-2007 which consolidates all previous GRs wherein the eligibility criteria in respect of every type of category has been laid down. _ It is important to note that herself being the scrutinizing officer, Smt. Kundan applied for membership of Adarsh CHS her application Exh, MEM-985 bears the date 1-4- 2006. But in para 15 of her affidavit she has stated that she made the application in 2009. In para 15 of her evidence she categorically stated that she had applied for membership of Adarsh CHS on 6-2-2009. In the next para she stated that the application is signed by her but the date "1/4/06" is not in her handwriting. Exh.AS-287 is a letter dt. 6-2-2009 addressed by the Adarsh CHS to the then Revenue Minister for approval of three names including the name of Smt. Kundan against the name of Shri Gulabrao Atram whose name had been kept pending. Shri Patangrao Kadam the then Revenue Minister has made an endorsement in Marathi on this letter, directing the Collector, Mumbai city to take appropriate action. Smt. Kundan was confronted with this letter and asked as to why she did not object wh401 to her name being put against the name of a person whose application was pending before her as approving authority. The answer given by Smt. Kundan in para 27 of her evidence is as under: “As per the GR dated 25-5-2007, I, as a Government servant serving in Maharashtra is entirely eligible to become a member of any government co-operative housing society if I fulfill the criteria under the said GR. It is the prerogative of a society to accept or not to accept or recommend any membership. It is not the duty of the Collector to question as to why some names are being held back by the society or why some names is totally prerogative of the society to recommend or not to recommend or to keep some names pending. The role of the Collector starts when a name is recommended by the society’. 56.66. Smt. Kundan was further asked as to why she did not consider it proper to recuse herself from the file of Adarsh CHS when her name was recommended by the Adarsh CHS. Her reply was to the following effect: “By applying to the government and forwarding my name for appropriate decision to be taken at the government level I had acted in full propriety and as expected of an officer. I did not recuse myself from handling all matters pertaining to the testing eligibility of proposed members of Adarsh CHS as these are administrative processes and giving clearance to eligibility of a member or rejecting does not accrue to benefitting the society’. We are not impressed by the explanation given by Smt. Kundan in this respect. In fact, in order to keep her image 4 \402, clean, Smt. Kundan should have either recused herself from the file of Adarsh CHS or should not have applied for its membership. 56.67. _In her application Exh. MEM-985 Smt. Kundan has stated her gross income as Rs. 40,196 which appears to be her monthly income. But in her affidavit/undertaking dt. 6-2-2009 Exh. MEM-986 she has stated “That my salary including that of my family members is Rs. 80,000 p.m. ( approx.) (all inclusive) She has explained that this figure includes the salary of her husband Shri Niket Kaushik who is an IPS officer Smt. Kundan belongs to “Boto’ community which is notified as a Scheduled Tribe in Ladakh under the Constitution of Jammu & Kashmir. She has produced a true copy of her caste certificate at page 9 of the file A-56. There is no dispute of this fact. 56.68, Smt. Kundan has been allotted flat No. 2401 having carpet area of 1076 sq. ft in A wing. In para 53 of her evidence she has stated that so far she has made a total payment of Rs. 89,11,481 towards the price of the flat and balance amount of Rs. 15,88,519 is yet to be paid to the society. In the previous para she stated that she has taken a loan of Rs, 91.53 lacs from SB] Bandra-Kurla Complex branch. Her father-in-law Dr. R.K. Kaushik gave her Rs. 10 lacs as a gift whereas her husband gave her Rs. 2.50 lacs as a gift. In addition, Smt. Kundan obtained a non-refundable advance of Rs. 2,40,000 from her Provident Fund for buying the flat. This fact is seen from the letter dt. 24-8-2009 issued by the Under Secretary, GAD (Exh. MEM-1050 colly.). In this way she appears to have raised the finance required for buying the flat in Adarsh AW403 CHS. She has produced all the relevant documents including bank statement, income tax return etc. pertaining to this and there can be no doubt about her financial capability to buy a flat in the Adarsh CHS. 56.69. As regards the eligibility conditions, Smt. Kundan fulfills the same. She joined the civil services in 1996 and since then she has been serving at various places in Maharashtra. Her period of residence in the State is therefore less than 15 years but since she falls in the excepted category of civil servants allotted to the State of Maharashtra the condition of 15 years residence is not applicable to her. As regards condition No.(5) & (6) of Annexure A of the GR dt. 27-5-2007, her application shows that neither she nor her husband own any house or flat or is a member of any other Co-op. Housing Society in the municipal limits of Mumbai city. There is nothing on record to indicate that her eligibility is barred . In view of this position, it will have to be held that Smt. Kundan is eligible to become a member of the Adarsh CHS and her membership has been rightly approved by the GOM. |. Shri Ram Chandra Thakur, Sect darsh CHS. 56.70. Shri RC. Thakur (AS W.No.2) who was the Chief Promoter and later the Secretary of the Adarsh CHS is a founder member of it. He belongs to Carpenter community of village Madhiyata, Dist. Madhubani in Bihar which is a Scheduled Caste. His application for membership is at Exh. AS-137 and it bears the date 1-1-1996. However, on his own admission the application is an i404 ante-dated. In para 4 of his evidence he stated that the Adarsh CHS was not registered on the date of the application ie. 1-1- 1996. In spite of that he has used the word “Ltd.” after the society’s name in the application. He further stated “J submitted the application Exh.AS-137 in the year 2002 and then back dated it showing the date as 1-1-1996. I do not exactly remember the date and the year on which the application form Exh.AS-137 was filled in by me but it was sometime in 2002-2003. I had back dated the application with the object of showing that I was listed as a member on 1-1-1996", $6.71. In his application Exh. AS-137 Shri Thakur has stated his annual income as Rs. 1,80,000 and spouse’s income as nil. Shri Thakur has been allotted flat No. 2501 having carpet area of 1076 sq.ft. in A wing and he was informed by the society accordingly on 1-10-2009. He has produced a compilation of certain documents called for by the Commission. They are in file A-464. This file contains a statement of payments made by Shri Thakur to the Adarsh CHS and it shows that the total amount paid by him for the said flat is Rs. 87,26,293. The said file also contains a statement at page 6 showing sources of funds for payment made to Adarsh CHS. The sources of income included in this statement are that of Shri Thakur himself, his son Navin Thakur and wife Smt. PramilaThakur The statement is for the period from 1999- 2000 to 31-3-2011. The total income of his son Navin Thakur is shown as Rs. 1,02,04,508 for the said period. Shri Thakur’s own “savings from salary” is Rs, 35 lacs. It is further stated that Smt. kL, \ '405 Pramila Thakur got a legacy from her father late Suraj Narayan Thakur. It appears that out of these sources that the total payment of Rs. 87,26,293 has been made to the Adarsh society towards the price of the flat. Unfortunately Shri Thakur was not questioned with regard to the sources of income stated in the said statement. 56.72. As regards the ligibility to become a member of the Adarsh CHS, Shri Thakur's declaration mentions that he is domiciled in the State of Maharashtra. There is however no domicile certificate produced by him. But para 2 of his evidence shows that he joined the Defence service as a Surveyor in 1971 in Mumbai and since then till his retirement, excluding his stay at Ahmedabad for four years he has been residing in the State of Maharashtra. Shri Thakur has stated in his application and also affirmed in his declaration that neither he nor his wife owns any flat or house in the area of operation of the Adarsh CHS. He has also affirmed that none of his family members is a member of any other Co-op. Housing Society in Mumbai. Shri Thakur retired as SDEO in the Defence services and having regardto his salary, he falls under B group as per the 5” Pay Commission. However since he does not belong to defence services per se, but to auxiliary services of defence and therefore he will not be entitled to the benefits which are available to exserviceman. Consequently Shri Thakur will have to be treated as a private person and having regard to his pensionary income, he becomes entitled only to category Ill, the entitlement of this category is 650 sq.ft. {406 Therefore even though Shri Thakur is found to be eligible to be a member of the Adarsh CHS, he will not be entitled to a flat having 1076 sq. of carpet area but only to 650 sq. ft. 22. Lt. Col. Arun Pratap Singh 56.73. Lt. Col. Arun Pratap Sing (AS.W. No.87) was a Captain in the Army, when he applied for membership of Adarsh CHS as per his application dt. 3-3-2003 Exh. MEM-835. In the said application he has given his monthly income as Rs. 16,000 and stated that neither he nor his spouse own any flat or house in the area of operation of the Adarsh CHS nor do they hold membership of any other Co-op. Housing Society within that area. An affidavit /undertaking Exh. MEM-836 affirming this fact is also filed. In para 2 of his evidence before the Commission he has stated that he was commissioned on 5-9-1997 and during the period from 10-11-2002 to 5-8-2005 he was posted in Mumbai. 56.74. Lt. Col. A.P-Singh has been allotted flat no. 2601 having carpet area of 1076 sq.ft. in A wing. But he has not yet taken possession thereof. It appears from his evidence that his wife is working in Mumbai and therefore he was interested in having a ated that he has paid Rs. 79,61,685 .31 to the society towards the price of the flat. However he raised this flat in Mumbai. He has amount by taking a loan of Rs. 79,61,000 from Ms. Priyanka Lakadawala (nee Priyanka Kaul) who according to him is his Rakhi sister. Ms. Priyanka is the daughter of Major Gen. TK. Kaul who has been allotted flat No. 3001 in Adarsh CHS. He has a. f407 produced a copy of the agreement dt. 10-9-2004 Exh. MEM-841 made with the said Priyanka. This agreement is a loan agreement for Rs. 60 lacs which is repayable within 9 years after getting possession of the flat in Adarsh CHS and the rate of interest chargeable on this loan is 6% per annum for the first three years, 9% per annum for the second three years and 11.5% for the next. three years. The evidence of Lt. Col. A.P.Singh shows that Ms. Priyanka is CEO of the Centre of Obesity and diabetic surgery. In 2004 she was a fund manager in her own company by name Tri- Colour Advisory. She got married in 2011. Ms. Priyanka Lakadawala (AS.W. No.99) was examined before the Commission wherein she stated that she has advanced a sum of Rs. 79 lacs to Lt. Col. A.p.Singh from Sept. 2004 by issuing cheques and that the amount advanced was entirely from her own sources. The question as to the real nature of the transaction between the two will be considered while dealing with issue no.11. For the present it is suffice to mention that Lt, Col. A.P.Singh has raised the requisite amount of consideration by borrowing a private loan, He has produced in his compilation the relevant documents including bank statement, income tax returns and payment receipts 56.75. As regards the conditions of eligibility, Lt. Col.A.P.Singh seems to fulfill the same. Being an Army officer , he falls in the excepted category of persons who do not require at least 15 years residence in the State of Maharashtra. His application supported by his affidavit/undertaking shows that he complies a408 with condition Nos. 3 and 4 of Annexure A of the GR dt. 27-5- 2007. Therefore he is eligible to be a member of the Adarsh CHS and has been rightly approved as a member thereof. This conclusion is however subject to the finding on issue No.11. MLC and Jt. ta Adarsh CHS. 56.76. Shri Kanhaiyalal Gidwani (AS.W. No.1) acted as a Co- ordinator between he Adarsh CHS and the GOM. He was also the Jt. Secretary of the society. He applied for membership of the Adarsh CHS as per his application dt, 13-8-2002 Exh.AS-324 wherein he has given his monthly income as Rs. 30,000 and that of his spouse's income as nil. In para 203 of his evidence he has stated that he was informed by the society under its letter dt. 2- 9-2004 Exh. MEM-326 about the grant of membership of the Adarsh CHS. Shri Gidwani was allotted flat No. 2701 having carpet area of 1076 sq. ft. in A wing, According to him, he has paid a total amount of Rs. 82,66,112 towards the price of the flat. In para 206 of his evidence he has stated that he had taken some amount of loan from his family and friends for buying the said flat. Shri Gidwani was Member of Legislative Council for the period from 26-7-2000 to 30-5-2006. Besides he was doing the business of real estate and commodities including sugar. He is also a Director of a company called Apeksha Impex Pvt. Ltd. which carries the business in real estate. Shri Gidwani is also a Director of another company called Green Earth Biofuel Agriculture Pvt. Ltd. which is an Agro based company. In short he appears to be a tL409 very resourceful man. He has produced a statement showing the payments made by him from time to time to the Adarsh CHS towards the price of the flat allotted to him. He has also furnished copies of his income tax returns. 56.77. Inhis application as well as the declaration Shri Gidwani has affirmed that neither he nor his wife owns any flat or house in the area of operation of Adarsh CHS. So also he claims that neither he nor any member of his family is a member of any other Co-op. Housing Society in Mumbai. The evidence of Shri Gidwani shows that he is residing in flat No. 1001, Bhima,Worli Sagar Co- op. Housing Society, Worli, Mumbai, However in para 3 of his evidence Shri Gidwani has clarified that the said flat belongs to his son Sunil. He has also stated that the flats in Bhima were meant for the Members of Legislative Assembly and Legislative Council and the said flat was allotted to Shri Gangadhar Nilkanth Swami who was an MLA but later on Shri Swami entered into an agreement of sale for the transfer of the said flat. He further stated that in 2001 he was allotted a flat in Shubhada society at Worli but he did not occupy the same and took back his money as he was allotted a flat in Adarsh CHS. Shri Gidwani also stated that his son Amit has taken a flat in Bhima building on rent. His other son Sunil resides in Chaitanya building at Prabhadevi on rent. All this evidence has not been controverted with the result that it will have to be held that at the relevant time Shri Gidwani did not own any flat of his own within the municipal limits of Mumbai AL410 and that he was not a member of any other Co-op. Housing Society in Mumbai. 56.78. Shri Gidwani being MLC at the relevant time is covered by clause (a) of para 4 of the GR dt, 9-7-1999 and as such there is no income limit applicable to his eligibility. Consequently he will have to be treated as eligible to become a member of the Adarsh CHS. 24. Brig. (Retd.) Tara Kant Sinha. 56.79. Brig. T-K. Sinha (AS W. No. 25) was working as Col. (Q) M&G Area , Mumbai from 1-2-2001 till 7-9-2003 and as per his own version he had an opportunity to deal with the file relating to the land in question. He applied for membership of Adarsh CHS as per his application dt. 26-2-2003 Exh. MEM-239. His monthly income is stated therein as Rs. 31,612. Along with his application he also filed his affidavit/undertaking affirming the facts stated in the application. Before the Commission he stated that Shri R.C Thakur informed him that his membership was approved on 14-5-2003 but according to him it was granted by the end of the year 2004. He was informed by the society that he was entitled to get a three bed room flat. Brig. T.K. Sinha has been allotted flat No. 2801 having a carpet area of 1076 sq. ft. in A wing. The total cost of the said flat which he has paid is stated to be Rs. 87,44,624. Brig. T.K. Sinha has stated that he obtained a loan of Rs. 22 lacs from ICICI bank, Nagpur branch. He did not borrow any loan from any other bank or financial institution. Brig. Sinha \ oeau. has produced a compilation of relevant documents which include bank statements, statement of payments made to the Adarsh CHS, income tax returns etc. He has stated that he was given possession of the said flat only for doing interior work and furnishing but he did not occupy the said flat. 56.80. Brig. Sinha seems to fulfill all the requisite conditions of eligibility. Being an Army officer, he falls under the excepted category of persons for whom 15 years residence in the State of Maharashtra is not mandatory. The application as well as the declaration made by Brig. Sinha shows that neither he nor his spouse own any house or a house site in the area of operation of the Adarsh CHS and none of them is a member of any other Co- op-Housing Society within the municipal limits of Mumbai. Taking all these facts into consideration it will have to be held that Brig. T.K. Sinha is eli; and his membership has been rightly approved by the GOM. ible to become a member of the Adarsh CHS 25. Cdr. Rajiv Pilo 56.81. Cdr. Rajiv Pilo (AS W.No. 86) was posted in Mumbai and he came to know about the Adarsh CHS from Shri R.C. Thakur. He applied for membership of the Adarsh CHS as per his application Exh, MEM-829 on 25-2-2003. Therein he has stated his income (without specifying whether it is monthly or annual) as Rs. 3 lacs. Along with his application he also filed an affidavit /undertaking affirming the contents of the application. He has stated that he was allotted flat No. 2901 having carpet area of 1076 sqft. in A AN wy412 wing for which he has so far paid Rs. 82 lacs to the society. He has stated that he took a loan of Rs. 12 lacs from ICICI bank, Nagpur branch and also obtained a loan of Rs. 7 lacs from LIC Housing Finance. Except these two loans he did not borrow any other loan. He has filed a compilation of documents including a statement of payments made by him to the Adarsh CHS. He has also filed copies of bank statements and income tax returns as well as copies of receipts of payments made to the Adarsh CHS. After going through all these documents, there is nothing to doubt about his financial ability to buy a flat in the Adarsh CHS. 56.82. As regards the eligibility of Cdr. Rajiv Pilo to become a member of the Adarsh CHS, it may be noted that being a Naval Officer, he falls under the excepted category of persons for whom 15 years residence in the State of Maharashtra is not mandatory. Even otherwise , as stated by him in para 2 of his evidence that since 1986 till his retirement on 31-1-2004 he was posted in Maharashtra. Cdr. Rajiv Pilo has affirmed that neither he nor his spouse own any flat or house in the area of operation of the Adarsh CHS and none of them is a member of any other Co-op. Housing Society. There is nothing to indicate that his eligibility is affected. It must therefore be said that Cdr. Rajiv Pilo is eligible to become a member of the Adarsh CHS and his membership has been rightly approved by the GOM. Similarly the allotment of a flat having 1076 sq. ft. to him is as per his entitlement KLa3 26. Major Gen. Tej Krishen Kaul (Retd.). 56.83. Major Gen, T.K. Kaul was GOC, MG&G Area , Mumbai from November 2002 till his retirement on 31-7-2005. During that period he came to know about the proposed formation of Adarsh CHS and accordingly he made his application Exh. MEM- 178 dt. 7-4-1999 for membership of the said society. Along with his application he submitted an affidavit/undertaking _re- affirming the contents of the application. In his application he has stated his income (without specifying whether it is monthly or annual) as Rs. 26,000 and the income of his spouse as being nil. It may be pointed out that at the time of making the application he was Brigadier. 56.84. Major Gen. T.K. Kaul had been allotted flat No. 3001 having 1076 sq.ft. carpet area in A wing. The total cost of the said flat according to him is around Rs. 80-90 lacs. He has however stated in his evidence that he has not taken any loan from any bank for raising the amount for buying the flat. Major Gen. T.K. Kaul has filed a compilation of relevant documents which include copies of payment receipts issued by the Adarsh CHS, bank statements and income tax returns and statement showing payments made to the Adarsh CHS. The statement of payment shows that during the period from 1-2-2003 to 2-9-2010 a total payment of Rs. 1,58,12,498.31 has been made by Major Gen. T.K. aya4 Kaul. This fact is confirmed by him in para 10 of his evidence but he has not explained as to why he made such an over payment of nearly double amount to the society. This fact becomes suspicious particularly when Major Gen T.K.Kaul has categorically stated in para 11 of his evidence that he did not obtain any loan from any bank for raising amount for buying the flat. Any way Major Gen. T.K-Kaul has not made any grievance about the said over payment and it is a matter to be sorted out by him and the society. It may be pointed out that Major gen. T-K.Kaul is one of the 14 accused who have been charge sheeted by the CBI for various charges. 56.85. As regards the conditions of eligibility, Major Gen. T.K.Kaul must be said to have fulfilled the same. Being an Army officer, he falls in he excepted category of the persons for whom 15 years residence in the State of Maharashtra is not mandatory. Major Gen. T.K.Kaul has affirmed in his application form and the undertaking that neither he nor his wife owns any flat or house within the area of operation of the Adarsh CHS and that he and his wife are not members of any other Co-op. Housing Society in the municipal area of Mumbai, Under these circumstances, Major gen. T.K.Kaul is found to be eligible to become a member of the Adarsh CHS and approval of his membership has been rightly granted by the GOM.415 A- WING- FLATS WITH AREA OF 650 SQ. FTS. 22._ Shri Aditya Bhagat Patil, 57. Shri Aditya B. Patil (AS.W.No.29) who is now 27 years old was a boy of 18 years only when he applied for membership of Adarsh CHS on 2-4-2003 as per his application Exh. MEM-262. In the said application his date of birth is mentioned as 2" February 1985 and occupation is mentioned as business. The monthly income is stated to be Rs. 10,000. Before the Commission he has stated that he was a partner in Aditya Ventures which was in a restaurant business. His father, mother and brother were the other partners of the said firm. Shri Aditya Patil is a resident of Islampur in Sangli district. According to him, his father was knowing Shri Kanhaiyalal Gidwani who informed that a flat in Adarsh CHS was available for allotment, It appears that therefore Shri Aditya Patil applied for the membership of Adarsh CHS. 57.1. Shri Aditya Patil has been allotted flat No. 502 having carpet area of 650 sq. ft. in A wing. It isa two bed room flat. He has further stated that he has paid an amount of Rs. 61,61,623 for the said flat. As regards the source of finance for buying the said flat, he has stated that he and his family members are the share- holders and Directors of M/s. Affluent Estates Pvt. Ltd. which is a public limited company carrying the business in real estates. There are two more companies namely M/s. Rajaram Solvex Ltd. which manufactures solvents from oil and M/s. Garden Court \ |416 Distilleries Pvt. Ltd. which trades in commodities. The father of Shri Aditya Patil is Director of both these companies. The statement of payments Exh. MEM-265 shows that loans were given to him by the above mentioned three companies. In addition his father Shri B.R.Patil is also shown to have given two loans of Rs. 9 lacs and Rs. 5 lacs to Shri Aditya Patil for buying the flat. It is further seen that Smt. Kusum Rajaram Patil, the grand- mother of Shri Aditya Patil gave him a loan of Rs. 50,000 on 12-4- 2003 and this fact is evidenced by a copy of the bank pass book of Smt. Kusum Patil as well as the certificate issued by K.C. Mehta & Associates, Chartered Accountants, Mumbai, Shri Aditya Patil has produced bank statements, income tax returns, balance sheet ete. 57.2. As regards the eligibility of Shri Aditya Patil it is found that he was a boy of 18 years only when he applied for membership of the Adarsh CHS in April 2003. He has stated his monthly income to be Rs. 10,000 only. However, that will not be sufficient for the purpose of assessing his eligibility from the income point of view. As per Annexure A to the GR dt. 25-5-2007 income of the entire family has to be taken into account for assessing the eligibility. The family of Shri Aditya Patil consists of himself, his father mother and brother who are the partners of the firm Aditya Ventures. In addition he has been the Director of M/s. Affluent Estates Pvt. Ltd. His father is a Director of another company namely Rajaram Solvex Ltd. as well as M/s. Garden Court Distilleries Pvt. Ltd. Shri Aditya Patil has filed a compilation of +a7 documents which includes copies of the income tax returns for the assessment year 2004-05 of himself, his father Shri Bhagat Rajaram Patil and grand- mother Smt. Kusum Rajaram Patil. As per these returns the income of Shri Aditya Patil during the said year is Rs. 151,999; whereas the income of his father Shri Bhagat Rajaram Patil for the same year is shown as Rs. 60,000. The income of his grand-mother Smt, Kusum Patil for the same assessment year is Rs. 1,97,400. We do not know what is the brother of Shri Aditya and what is his income. Even then, if we take into consideration the annual income of these three persons of the same family, it comes to Rs. 4,08,000. In view of this fact, it cannot be said that Shri Aditya fulfills the eligibility condition of income as contemplated by the GR dt. 25-5-2007. It may further be noted that Shri Aditya Patil has admitted in para 9 of his evidence that when he applied membership of Adarsh CHS, he was residing with his father at Raheja Classique, Andheri. Even in his evidence before the Commission he has given the same address. Therefore he becomes ineligible on the ground that he or his father was having his own house within the municipal area of Mumbai. Consequently it must be said that approval of membership to Shri Aditya Patil in respect of the Adarsh CHS was not proper. 28, Col, R.K. Bakshi. 57.3. Col. RK. Bakshi has not filed any affidavit before this Commission nor has he produced any documents. It appears that WL418 his name was approved for membership of Adarsh CHS and it is at Sr. No. 13 of the list of 71 members Exh. AS-33. It further appears that flat No. 602 in A wing was proposed to be allotted to him but the allotment does not appear to have materialized. 29, Shri Amarsingh H. Waghmare,- Private service, 57.4. Shri Amarsingh Waghmare (AS.W. No.8) belongs to Scheduled Caste and he comes from Nagpur. He is working in Container Corporation of India at Nagpur as Asstt. Supervisor. According to him he was never working in Mumbai but his friend Shri Anilkumar Thakur, who is the nephew of Shri R.C. Thakur told him about Adarsh CHS and thereafter he made an application Exh, MEM-844 dated nil for getting membership of the Adarsh CHS. In his evidence before the Commission he has stated that he forgot to write date and place on his application. However, according to him he had come to Mumbai for submitting his application on 6-9-2006. In the application he has stated his monthly income as Rs. 16,025. With regard to clauses (8), (9) and (10) of the application form which contemplate giving information about membership of any other Co-op. Housing Society or ownership of any other flat within the area of operation of the Adarsh CHS, the informations supplied by Shri Waghmare is "N.A.” 57.5. Shri Waghmare was informed by the society as per its letter dt. 12-5-2008 Exh. MEM-848 that his application for membership was approved by the competent authority. Shri —419 Waghmare has been allotted flat No. 702 having carpet area of 650 sq, ft. in A wing. Before the Commission he has stated that so far he has made payment of Rs. 85,50,000 to the society towards the price of the said flat. At this stage it may be pointed out that the members who have been allotted three bed room flats each having carpet area of 1076 sq. ft. have paid price of around Rs. 88 lacs for the same and_ those who have been allotted two bed room flats having carpet area of 650 sq. ft. each have paid the price of around Rs. 60 lacs. Therefore it is not known as to why Shri Waghmare should make an excess payment of Rs. 25 lacs to the Adarsh CHS. 57.6. Shri Waghmare has produced a statement of payments Exh, MEM-849 made to the Adarsh society which confirms the fact of total payment of Rs. 85,50,000. He has also produced a copy of the cheque dt. 25-10-2010 Exh. MEM-850 which he issued in favour of the society for Rs. 50 lacs which payment is reflected in the statement Exh. MEM-849. When asked about the source of the payment of Rs. 50 lacs, as per the cheque dt. 25-10-2010 Exh. MEM-850, Shri Waghmare stated that on 18-10-2010 he entered into an agreement with Smt. Iravati Kishore Parkar of Mumbai as per which he gave his flat to her on rent and in consideration of that Smt. Parkar paid him Rs. 90 lacs as security deposit. We shall discuss this aspect in details while dealing with issue No.11. For the present, it is suffice to say that this fact has no relevance with the eligibility of Shri Waghmare. \ i420 57.7. As regards the conditions of eligibility, it is found that Shri Waghmare fulfills all the conditions mentioned in Annexure A of the GR dt. 25-5-2007. Therefore his membership is rightly approved by the GOM. }. Shri Vishi ‘ishore Kedari ~ Ve nd 57.8. Shri Vishal Kedari ( AS. W. No. 94) is a vegetable vendor of Khatki, Pune . He belongs to a Scheduled Caste. According to him, he was also doing some social work and therefore came in contact with Shri Sevak Nayyar who was the CEO in Khadki Cantonment Board. He has further stated that Shri R.C. Thakur used to come to the house of Shri Nayyar and on one occasion he found them discussing in connection with Adarsh CHS. Shri Kedari has stated that he asked Shri Thakur he was very much desirous of having a house in Mumbai and Shri Thakur told him that it was not within his reach as it would cost Rs. 60 lacs to Rs. 70 lacs. Despite this fact Shri Kedari made his application for membership of Adarsh CHS on 23-10-2007 Exh. MEM-923. In the said application he has stated his monthly income as being Rs. 16000 per month. In para 5 of his evidence before the Commission he has stated that he does not have a vegetable shop and that he sells vegetables by the side of the road. 57.9. — Shri Kedari has been allotted flat No. 802 having carpet area of 650 sq. ft. in A wing, He has stated that that the society had called upon him by its letter dt, 19-11-2008 Exh, MEM-930 to make payment of Rs. 59,10,768 towards the price of the said flat mL421 Shri Kedari has stated that he took a loan of Rs, 5,50,000 from Shri Sevak Nayyar, Rs. 28 lacs from the wife of Shri Sevak Nayyar, Rs. 10 lacs from Shri Sunil Advani and Rs. 20 lacs from Shri Amit Thepade. He has further stated that he mortgaged the said flat to Shri Nayar. We will discuss these facts in details while dealing with issue No.1. For the present we are on the eligibility of Shri Kedari to become a member of the Adarsh CHS in his individual capacity. He appears to have fulfilled the requisite conditions of eligibility. He is unmarried and he does not own any house or flat nor he is a member of any Co-op. Housing Society within the municipal limits of Mumbal. Therefore he is eligible to become member of the Adarsh CHS and his membership has been rightly approved by the GOM. 31. Dr. Archana Tiwari 57.10. Dr. Archana Tiwari (AS.W. No. 34) is M.D. (Pathology) and presently she is working in Ranbaxy Laboratories, Goregoan. She got married in 2005 but before that in 2004 after coming to know about the Adarsh CHS she applied for its membership as per her application dt. 18-6-2004 Exh. MEM-285. It appears that at that time she was residing with her father Dr. P.L. Tiwari at 2, Jal Kiran, Cuffe Parade, Mumbai 400 005. In the said application she has stated her income as “Net taxable income approx. Rs. 10,000/- p.m.” In fact she ought to have stated her total monthly income. However she has not done so and therefore adverse inference is liable to be drawn against her to the effect that her total monthly422 income was more than Rs. 20,000 but in order to bring her case within the eligible limit of income, she has purposely stated the taxable income. The office of the Collector has failed to scrutinize her application properly particularly with regard to the figure of her monthly income and ought to have sought explanation from her in that respect. The information given by her regarding clauses (8),(9) and (10) in the application form is in the negative. 57.11. It appears that after the application of Dr. Archana ‘Tiwari was approved by the GOM and after she made some payments to the society, the society informed her by its letter dt. 25-10-2008 Exh. MEM-293 that due to insufficient FSI available at the disposal of the society, she could not be accommodated as a member for allotment of a dwelling unit in the society. She therefore raised a dispute in that behalf before the Co-operative Court. There was a round of litigation between her and the society upto the High Court and finally the parties filed consent terms. Thereafter Dr. Archana Tiwari was allotted flat no.902 having carpet area of 650 sq.ft. in A wing. She has stated that she has made a total payment of Rs. 70,50,768 towards the price of the said flat and the society has acknowledged the said payment by its letter dt. 3-9-2010 Exh. MEM-299, Dr. Archana Tiwari has stated that she raised this amount by borrowing loans from her father, mother and husband. She has filed a compilation of documents which include copies of the receipts issued by the society, bank statements, statement giving details of loans wy423 borrowed by her from the above mentioned persons as well as copies of the income tax returns and other documents. 57.12. Since we hold that the ......_ income of Dr. Archana Tiwari was more than Rs. 20,000 per month, she becomes ineligible to become member of the Adarsh CHS and therefore she should not have been granted membership of the Adarsh CHS. 32__Lt, Gen. Tejinder Singh (Retd,) 57.13. Lt. Gen Tejinder Singh (AS.W. No. 79) applied for membership of Adarsh CHS as per his application dt. 23-11-2006 Exh. MEM-737. [t appears that at that time he was posted in Mumbai as GOC, MG&G Area. It may be pointed out that no information regarding his monthly or annual income is supplied in the application form and the column is left blank. However, in the supporting affidavit dt. 27-11-2006 he has stated “That my salary including that of my family members is Rs. 41,000/- per month”, He has produced before the Collector his statement of account with Syndicate Bank Exh, MEM-738 on the basis of which he stated in para 6 of his evidence before the Commission that his salary during December 2005 was Rs. 41,705. His information with regard to clauses (8), (9) and (10) in the application form is in the negative. 57.14. The membership application of Lt. Gen. Tejinder Singh came to be approved in November 2008 and accordingly the Collector by his letter dt. 7-11-2008 Exh. MEM-744 informed him about the same. In para 13 of his evidence, Lt. Gen. Tejinder Singh wh424 has stated that he has been allotted flat No. 1002 having carpet area of 650 sq. ft. in A wing and that he has taken possession of the said flat. He further stated that he has made a total payment of Rs. 70.50 lacs to the society towards the price of the said flat. As regards the source of payment, he has given a statement stating the details of payment at Exh. MEM-749 which shows that Rs. 16 lacs were received by sale of his share in the ancestral property and Rs. 55 lacs by the sale of his flat in Gurgaon. Lt. Gen Tejinder Singh has filed a compilation of documents which include bank statement, income tax returns and other documents. Taking all these facts into consideration, it is seen that Lt. Gen. Tejinder Singh was eligible to become a member of Adarsh CHS and he his membership application has been rightly approved by the GOM. However, having regard to the high rank which he was holding in the Army as well as his income group, he falls under A group of employees as per the 5% Pay Commission report. Therefore the allotment of a small flat of 650 sq. ft. to him does not appear proper. at ao Chavan, 57.15. Dr. S.B. Chavan (AS.W.No. 71) was posted in Mumbai and he retired as the Director, Health Services on 31-1-2009. He belongs to Banjara Caste which is recognized as Vimukta Jati. One Shri Eknath Damu Rathod is his co-brother. The said Rathod had applied for and was granted membership of the Adarsh CHS. wh425 However, by his letter dt. 12-4-2010 addressed to the Secretary of the Adarsh CHS, Shri Rathod voluntarily withdrew his membership with a request to accept his resignation and transfer his membership along with assets and liability to Dr. Chavan. On the same day Dr. Chavan submitted his application Exh. MEM-667 for membership of the Adarsh CHS. By a separate letter dt. 12-4- 2010 Exh. MEM-669 Dr. Chavan requested the Secretary of the Adarsh CHS to grant him membership against the membership of Shri Eknath Rathod who was resigning only to accommodate him. In his application he has stated his monthly income as Rs. 1.5 lacs. It appears that after his retirement from government service, Dr. Chavan joined Wadia hospital as CEO. Having regard to the fact that admittedly at the time of making the application his monthly income exceeded far more than Rs. 20,000 per month, Dr. Chavan becomes ineligible to become a member of the society. His application indicates that he or his wife did not own any house or building site in the area of operation of the Adarsh CHS and that none of them was a member of any other Co-op. Housing Society in Mumbai. 57.16. On behalf of the Adarsh society its secretary informed Dr. Chavan by his letter dt. 3-9-2010 Exb. MEM-671 that the competent authority had approved his name as member of the Adarsh society and that flat No. 1102 having 650 sq.ft. in A wing was allotted to him. By the same letter Dr. Chavan was called upon to make a payment of Rs. 70,50,768 towards the price of the flat. Dr. Chavan has stated that he has not paid the total cost of oe426 Rs. 70,50,678 but paid Rs. 61 lacs towards the purchase of the said flat. In para 13 of his evidence before the Commission, Dr. Chavan has stated that amount of Rs. 54 lacs was transferred from the account of Shri Eknath Rathod to his account and thereafter he paid Rs. 7.5 lacs to the society. Dr. Chavan has filed a compilation of documents which includes copies of his caste certificate, bank statements income tax returns and other documents. Dr. Chavan has stated that he has not taken possession of the flat as yet. 57. The version of Dr. Chavan has not been controverted both by the Adarsh CHS and the GOM. Therefore there is no difficulty in accepting his version. As regards certain money transactions between him and his co-brother Shri Eknath Rathod, it is not necessary for this Commission to go into that since it is a private matter between the two. The fact is that Dr. Chavan has been accommodated in Adarsh CHS as a member in place of his co-brother Shri Eknath Rathod who also belongs to Vimukta Jati. Dr. Chavan however does not fulfill the eligibility criterion of monthly income of Rs. 20,000 and therefore he becomes ineligible for being member of the Adarsh CHS. Consequently his application ought to have been rejected by the GOM. 4, Smt. Seema Vinod Sharma, Asstt. Dit Mumbai. 57.18. | Smt. Seema Sharma (AS.W. No.82) is the wife of Shri Vinod Manoharlal Sharma who happens to be the brother-in-law wha7 of Shri Ashok Chavan, the former Chief Mi Smt. Amita Chavan, the wife of Shri Ashok Chavan is the sister of ister of Maharashtra. Shri Vinod Sharma. Smt. Seema Sharma has been working with LIC since 1982 and on her own saying, she has been staying in Mumbai since 1991. She has stated before the Commission that she came to know from one Shri Hiralal Shah who is a friend of her mother-in-law Smt. Bhagwati M. Sharma that a flat was available in Adarsh CHS. Therefore Smt. Seema Sharma applied for allotment of a flat in the Adarsh CHS as per her application Exh. MEM-791. In the said application she has given her residential address as 91, Walkeshwar Road, White House, Mumbai -400 006, However she has stated that the said flat belongs to Patel India Pvt. Ltd. with whom her father-in-law Shri Manoharlal Sharma was employed. The evidence of her husband Shri Vinod Sharma (C.W. No.23) shows that Shri Manoharlal Sharma passed away on 6-10-1983 but the company did not take back the said flat and it still continues to be in the occupation of Sharma family. Shri Vinod Sharma has further stated “We however do not make any payment to the said company for our occupation of the said flat but we only pay the electricity charges.” Itis difficult to digest the statement that the company is allowing the Sharma family to occupy its flat at gratis in a posh locality of Mumbai and that too for about 30 years after the death of its employee Shri Manoharlal Sharma. 57.19. The application Exh. MEM-791 of Smt, Seema Sharma bears the date 18-6-2004. In the said application she has given act !428, her monthly income as being Rs. 18,435. It is however pertinent to note that point Nos. 5 to 11 except point no.8 in the application form are let blank, Point No.8 is “Name and address of any other Co-op. Hsg. Society wherein I am already a members’ and the information given on this point is “NA.” which means “Not applicable”. Smt. Seema Sharma could not assign any reason for not filling up clauses 5,6,7,9,10 and 11 of the application. It may be noted that under point no.9 the applicant is expected to state whether he/she or his or her spouse is a member of any other Co- op. Housing Society in the area of operation of the Adarsh CHS and whether any flat or plot has been allotted. Point no.10 requires the applicant to give information whether his or her spouse owns a house or building site in the area of operation of the Adarsh CHS, It is surprising that despite the fact that the application of Smt. Seema Sharma was not completely filled in and that information on very material point was not given, her application was approved and she was given membership of the Adarsh CHS. This fact by itself is eloquent and needs no comment. 57.20. The most important thing which was suppressed by Smt. Seema Sharma in her application is the fact that her husband was owning a flat in Florida building, Lokhandwala Complex at Andheri West. She has stated about this flat in para 3 of her evidence before the Commission. Besides her husband Shri Vinod Sharma (C.W. No.23) also stated in para 3 of his evidence as follows: “During the period from 2002 to 2012, | owned a flat in a429 Shastri Nagar, Lokhandwala Complex, Andheri (W). The name of the building in which the flat is located is Florida. It was 800 sq. ft in area. I had purchased that flat in 1988 and sold it in 2007. The number of the flat was 505. The said flat was purchased by me out of the 10% discretionary quota of the Chief Minister. During the entire period from 1988 to 2007 the said flat was lying vacant”. Shri Ashok Mundargi, the ld. Counsel for Smt. Seema Sharma submitted that it was a bonafide mistake on her part in not mentioning Florida flat in her application. In our view such an obvious omission cannot be treated as bonafide. In fact, this was a fact which was well within the knowledge of Smt. Seema Sharma and it ought to have been disclosed in her application for membership of Adarsh CHS, However, such a disclosure would have rendered her ineligible to become a member of the Adarsh CHS because in view of condition No.5 and 6 in Annexure A of the GR dt. 25-5-2007, Smt. Seema Sharma would not have been entitled to the membership of Adarsh CHS. Whatever be the reason, the result is that Smt. Seema Sharma though ineligible, was granted membership of Adarsh CHS in breach of the said GR. 57.21. St. Seema Sharma has been allotted flat No. 1202 having carpet area of 650 sq, ft. in A wing. She has stated that she has paid a total price of Rs. 73,33,985 as detailed in the statement of payments Exh, MEM-798 during the period from 7-3-2003 to 22- 7-2010. She claims to have borrowed the initial sum of Rs. 50,000 from her mother-in-law Smt. Bhagwati M. Sharma. The amounts at Sr. Nos. 2 to 8 in the said statement, according to her, 4h.430 are the amounts of loan given to her by her husband Shri Vinod Sharma. Shri Vinod Sharma has produced copies of his income tax returns for the relevant years and they reflect the above mentioned payments made by him to his wife Smt. Seema Sharma. 57.22. For the aforesaid reasons we hold that Smt. Seema Sharma was ineligible to become a member of the Adarsh CHS and yet she was given membership thereof. 35. Prof. Satyasandha Vinayak Barve, Retd. Professor. 57.23. Shri S.V. Barve (AS.W. No. 45) has stated in his affidavit that he retired from active service on 31-12-1986 and thereafter he was staying in a rented accommodation at Ambernath (East). However after the death of his wife in October 2009 he shifted to the house of his elder son Dr. Sidhivinayak at Ambernath (East). He has further affirmed that he was actively associated with Indian National Congress and got acquainted with Shri Kanhaiyalal Gidwani_and inquired with him whether there was any vacancy inthe Adarsh CHS. Later in March or April 2009 Shri Gidwani said to have informed him that the society was likely to get additional FSI and that he should therefore submit his application. Accordingly Shri Barve appears to have submitted his -2009 Exh. MEM-403 for membership of application dt. 28 Adarsh CHS. In the said application Shri Barve has stated his age as being 82 years. He has mentioned his monthly income as Rs. 14,658, His information in respect of clause (8),(9), and (10) in aly431 the application is in the negative. Along with the application he also filed a supporting affidavit and reaffirmed the contents of his application 57.24 Shri Barve has stated in para 3 of his evidence that the society informed him in 2009 itself that his membership was approved. Initially he was allotted a flat on 6" floor but on his request he was allotted flat No. 1302 but he does not remember the wing. The area of the said flat according to him is approx.. 600 sq. ft. The society has not given possession of the flat to him. Shri Barve claims to have made a total payment of Rs. 65,05,768 to the society. He raised this amount by borrowing a loan of Rs. 49 lacs -law Ms, Sharmila Sanjay Barve whose from his daught husband is Inspector General of Police in Maharashtra State. He has filed a compilation of documents including a statement regarding details of payments made against the purchase of the said flat which shows four entries of receipt of amounts in his account. The first is dt. 7-10-2009 of Rs. 50,000; the second is dt. 10-10-2009 of Rs. 10 lacs; the third is dt. 15-10-2009 of Rs. 49,10,768 and the fourth is dt. 26-11-2009 of Rs. 5,45,000. Annexure-II to this statement makes it clear that the first three amounts were received by him from Mrs. Sharmila Barve. The fourth amount also appears to be a family loan but he has not disclosed the name of his relative who gave that loan to him. Shri Barve does not appear to have contributed from his own source towards the price of the said flat and almost the entire amount seems to have received from the account of his daughter-in-law AL !432 Mrs. Sharmila Barve. However, that will be a relevant question for deciding whether Shri Barve is the real owner or a benami. We will deal with this point when we discuss the issue of benami transaction. 57.25. Going by the conditions of eligibility, Shri Barve seems to fulfill all the requisite conditions and therefore his membership application is rightly approved by the GOM. 36,_Lt. Cdr. Chunilal, Retd, 57.26. Lt. Cdr. Chunilal (AS W. No. 63) has stated that his total service in Mumbai has been of 12 years. He joined the Naval service as a sailor and retired as Lt. Cdr. According to him he learnt about the Adarsh CHS from Lt. Cdr. G.S. Grewal. He made his application Exh. MEM-591 on 6-7-2002. Therein he has stated his monthly income as Rs. 25,202. His information with regard to column No. 8 to 10 in the application is in the negative. Lt. Cdr. Chunilal has stated in his evidence before the Commission that by its letter dt. 2-9-2004 Exh. MEM-593 the society informed him that his request for grant of membership of Adarsh CHS was accepted by the government. He has further stated that he was allotted flat No. 1402 having carpet area of 650 sq. ft in A wing. According to him he has made a total payment of Rs. 60,39,209 towards the price of the flat allotted to him. He raised this amount by borrowing a loan of Rs. 17 lacs from Lt. Cdr. Grewal , Rs. 25 lacs from ICICI Bank, Nagpur branch, Rs. 9.5 lacs from his brother Kasturilal , Rs. 5 lacs from his younger brother Hansraj |.433 and Rs. 21,78,240 from Shri Sharad Madan. Para 10 of the evidence of Lt. Cdr. Chunilal shows that he has borrowed in all Rs. 81 lacs from Shri Sharad Madan who is NRI and out of that amount Rs. 35 lacs have been paid towards security deposit as he has entered into a leave and license agreement with Shri Madan on 25-6-2008. In para 9 of his evidence Lt. Cdr. Chunilal stated that it was his future plan to make a provision for the residence of his sons in case they decided to shift to Mumbai. It therefore appears very doubtful whether Lt. Cdr. Chunilal purchased the flat in Adarsh CHS for himself or for his family. 57.27. So far as the conditions of eligibility are concerned, Lt. Cdr. Chunilal seems to fulfill all of them and therefore he is eligible to be a member of the Adarsh CHS and accordingly his membership was granted by the GOM 37. Shri Ut tor. 57.28. Shri Uttam Gakhare (AS.W. No. 72) who has failed in 12" standard examination, claims to be carrying business as Civil Contractor at Nagpur. Before the Commission he stated that he had no occasion to carry on this business in the city of Mumbai but he thought that if he could get a house in Mumbai then he would carry on the construction business in Mumbai city also. He further stated that a house in Mumbai would be useful to him from the view point of the education of the children. He saw Colaba area for the first time in 2003. According 0 him one Shri Arun Upadhyay of Nagpur gave him information about the Adarsh A be434 society and thereafter he came down to Mumbai and submitted his application dt, 17-3-2003 Exh, MEM-673 for getting membership of Adarsh CHS. In the said application he has stated his monthly income as Rs. 10,000. The information in respect of points Nos. 7 to 10 is however in the negative. Shri Uttam Gakhare has further stated that in Mumbai he met Shri Kailash Gidwani who told him that a flat in Adarsh CHS would cost him about Rs. 52 to Rs. 5S lacs. 57.29. It is seen from Exh. MEM-675 which is a letter dt. 2-9- 2004 addressed by the society to Shri Uttam Gakhare that he was informed about the grant of membership to the Adarsh CHS. It appears from the possession receipt Exh. MEM-678 dt. 19-10- 2010 that Shri Gakhare was allotted flat No. 1502 having carpet area of 625 sq. ft. in A wing. He has produced a compilation of documents including the details of payments, made towards the cost of the flat Exh. MEM-676. This statement shows that during the period from 17-3-2003 to 18-7-2009 a total payment of Rs. 51,15,394 was made towards the cost of the said flat. According to Shri Gakhare the payment of first four amounts totaling Rs. 17.50 lacs was made from his own account whereas the remaining five amounts totaling Rs. 34,15,394 was made by Smt. Arundhati Upadhyaya, who runs a English medium School at Nagpur. Shri Gakhare has stated, “ She paid me the said amounts as hand loan of Rs. 34,15,394. I did not execute any loan document in her favour. It was an interest free loan. No security was given by me for the repayment of this loan. I have not so far repaid the said al435, loan to Smt. Upadhyaya. She has not given any notice to me demanding the repayment of the loan. | am still working with Shri Upadhyaya.” 57.30. We propose to consider the nature of this transaction a little later when we deal with issue No. 11. At this stage, it will suffice to say that Shri Gakhare complies with the requisite conditions of eligibility and therefore the grant of membership of Adarsh CHS in his favour cannot be faulted on the ground of ineligibility. 38._Shri Sajjan Singh Yadav, Service (Engine: . 57.31. Shri $.S. Yadav (AS.W. No. 32) has been working as an Engineer in the Central Workshop of Tata Institute of Fundamental Research, Colaba, Mumbai since 20-6-1979. According to him he came to know from Cmdr. Pilo about the Adarsh CHS and thereafter on 7-9-2006 he submitted his application Exh. MEM-281 for membership of Adarsh CHS. In the said form he has given his monthly income as Rs. 23, 327 approx. The information with regard to point nos. 8 to 11 is in the negative. He further stated that by a letter dt. 19-11-2008 Exh. MEM-282 he was informed by the society that the competent authority had approved his name for membership. By the same letter he was called upon to make a payment of Rs. 59,10,768 towards the price of the flat and other things. 57.32. However in para 6 of his evidence Shri Yadav has stated that the total amount paid by him to the society towards the al436 purchase of the flat is Rs. 70,50,768. He further stated that the State Bank of Patiala sanctioned a loan of Rs. 30 lacs to him but disbursed the actual loan of Rs. 24,45,000. The statement of payments made by Shri Yadav to the society is found in his letter dt, 5-1-2011 Exh. MEM-283 addressed to the Income tax Officer (INV) Unit -1, Mumbai. This statement shows a total payment of Rs. 70,50,768 and bears a note that out of the said amount Rs. 40,10,768 were paid by his wife Mrs. Gindo Sajjan Yadav out of the sale proceeds of land at Usarly, Taluka Panvel. Shri Yadav has produced a compilation of documents which includes copies of payment receipts issued by the society, bank statements and income tax returns etc. Shri Yadav being a government servant, he falls in group A as per the 5‘ Pay Commission, Taking all these facts into consideration, it is seen that Shri Sajjan Singh Yadav is eligible to become a member of the Adarsh CHS and he has been rightly granted membership thereof. ira Mehta, Diamond merchant 57.33. Shri Girish Mehta ( AS.W.No. 10) applied for membership of Adarsh CHS as per his application dt. 11-12-2007 Exh, MEM-73. In the said application he has described his occupation as “self employed/director” and given his monthly income as Rs. 17,719. The information on point nos. 8 to 10 is however in the negative. In para 6 of his evidence, Shri Girish Mehta stated that at the time of making the application for membership of Adarsh CHS, his source of income was his salary which was Rs.17,000 per month. a437, According to him, he was working with Atul Diamonds Pvt. Ltd. and he was paid for being the Managing Director of that company. However in his affidavit dt. 9-1-2009 Exh. MEM-67 which he appears to have submitted along with his application for membership, he has stated , “/ am presently engaged in business of JEMS at Opera House, Mumbai ‘ONES MANUFACTURING, as a Proprietor/Director, situated In para 6 of his evidence Shri Girish Mehta further stated that the Jems Stone Manufacturing company are separate entities. He further stated that his income from Jems Stone Manufacturing company which is Rs. 17,000 per month is not reflected in his income tax returns Exh. MEM-75 and 76. It therefore become obvious that the monthly income of Shri Girish Mehta at the relevant time was Rs. 34,719. In addition, it may be pointed out that Shri Girish Mehta has not taken into consideration the income of his wife Mrs. Giraben Mehta. The copies of income tax returns of Mrs. Giraben Mehta for the assessment year 2008-09 produced by him shows that her gross total income during that year was Rs. 1,13,193. Shir Girish Mehta claims to have borrowed a loan of Rs. 65 lacs on 29-6-2000 from Superline Construction Pvt. Ltd. He has further stated that it was an interest free loan. In para 8 of his evidence Shri Girish Mehta has stated that he has repaid the loan to Superline Construction Pvt.Ltd. and that the repayment of loan was made from his own firm i.e. Atul Diamonds. He however admitted that the capital account of Atul Diamonds is not reflected in his income tax return Exh, MEM-76, Whatever it may be, a man who could repay a loan a |438 of Rs. 65 lacs within two years is certainly a resourceful man and it cannot be believed that his income was only Rs. 17,719 p.m, at the relevant time. Taking these facts into consideration, it is obvious that the income of Shri Girish Mehta including that of his family was exceeding far more than the ceiling of Rs. 20,000 per month. 57.34. Shri Girish Mehta has been allotted flat No. 1702 having carpet area of 650 sq. ft. in A wing but he did not get possession thereof. According to him, he obtained a Joan of Rs. 65 lacs from Super Line Construction Pvt. Ltd. which was an interest free loan. The said loan is reflected in his bank statement Exh. MEM-77 as per the entry dt. 29-6-2010. He has further stated that he has repaid the said loan to Super Line Construction and this fact is reflected by two entries dt. 20-3-2012 of Rs. 50 lacs and dt. 22-3- 2012 of Rs. 15,10,000. In addition, there is one more entry dt. 31- 3-2012 of Rs. 8,50,000. All these are debit entries. 57.35. Having regard to the above mentioned facts it must be held that Shri Girish Mehta is not eligible to become a member of the Adarsh CHS and that his approval granted to his membership was not proper and correct. Phatal Lodha Group. 57.36, Shri Kanishka Phatak (AS. W. No.40) is the son of Dr. Jairaj Phatak, former Municipal Commissioner. Shri Kanishka is a Chartered Accountant and has also done Post Graduate Diploma a439 in Management. He applied for membership of Adarsh CHS as per his application dt. 7-6-2003 Exh. MEM- 354. At the time of making the application, he was 20 years old and doing C.A. Article ship. He has stated his monthly income as being Rs. 11,800. However, in para 5 of his evidence Shri Kanishka has stated that “At that time | was a student. At that time | was not making any earning and I was dependent on my father’, In para 6 of his evidence he has clarified that the figure of income of Rs. 11,800 is his share in the HUF rental income. The information on points Nos. 8 to 11 given by him is nil. 57.37. Shri Kanishka has stated that he was granted membership of the Adarsh CHS in August 2004 and the allotment of the flat to him was made in July 2009. He has further stated that he took possession of the said flat sometime in late 2010. Shri Kanishka has been allotted flat No. 1802 having carpet area of 650 sq. ft. in A wing. The total consideration paid by him for of documents which includes a detail, state ent of payments acquiring the said flat is Rs. 59,64,000. He ue a compilation made by him to the Adarsh CHS and the source of the payments. It is at Exh. MEM-357. According to Shri Kanishka he obtained a loan of Rs. 9.75 lacs from ICICI bank, Nagpur which fact is evidenced by the bank's letter dt. 23-6-2008 Exh. MEM-359. 57.38. Having regard to all the evidence on record, it is found that Shri Kanishka was eligible to become a member of the440 Adarsh CHS and his membership application has been rightly approved by the GOM. 41._Miss. Supriva V. Mhaske 57.39. Mis. Supriya Mhaske (AS.W. No. 47) is the daughter of Shri Vasantrao Mhaske (1.W. No.15) who was Dy. Inspector General of Registration at Pune at the relevant time. Her caste certificate issued by the Dy. Director of Social Welfare, Pune shows that she belongs to Dhangar caste which is a Nomadic Tribe. However, according to Ms. Supriya the information regarding the Adarsh CHS was given to her by Shri Suresh Kolhapure, a builder in Pune and thereafter she applied for membership of Adarsh CHS as per her application. Dt. 3-6-2003 Exh. MEM-410. In the application she has _ stated her occupation as “Agriculture and service and education’. The figure of her monthly income stated in the application is Rs. 10,830. Ms. Supriya has stated in para 4 of her evidence that at the time of making the application she was doing a part time job with Shri Suresh Kolhapure. The information on point Nos. 9 to 12 is however in the negative. 57.40. Ms. Supriya was informed by the Adarsh CHS by its letter dt. 2-9-2004 Exh. MEM-412 that her request for grant of membership of Adarsh CHS was accepted by the GOM. Ms. Supriya has been allotted flat No. 1902 having area of 650 sq. ft in Awing. She has filed a compilation of documents which includes a statement of payments made towards the cost of the flat, bank statements, information regarding loans taken and income tax WL4a return. Exh. MEM-415 is a statement containing details of payments made to Adarsh CHS during the period from 19-5-2004 to 15-11-2010. The total payment made by her to the society is Rs. 61,97,095. In para 8 of her evidence She has stated that she received Rs. 3 lacs from Shri Umesh Shinde who is a builder in Kolhapur and that her mother lent her Rs. 2 lacs. She has produced three documents Exh. MEM-417 colly. regarding confirmation of loans borrowed from Shri Nilesh Toshniwal and Shri Sandeep Thorat, both of Pune. It appears that she borrowed a loan of Rs. 12 lacs from the two persons. Ms. Supriya has further stated that she obtained a Joan of Rs. 40,50,000 from Shri Jayant Shah a builder in Pune who is also her family friend. She further stated that she has repaid the said loan with interest. In para 11 of her evidence she has stated that she executed a deed of assignment dt. 2-7-2011 in favour of Sheshmal Bastimal Bothra in respect of her immovable property and received a sum of Rs. 50 lacs. A copy of the deed of assignment is at Exh. MEM-421 and it shows that what was transferred under the deed was a flat in Jedhe Park, Ashwamedh Arcades, All these facts show that Ms. Supriya is a resourceful lady capable of raising the finance required for buying a flat in the Adarsh CHS. 57.41. Taking these facts into consideration, it will have to be held that Ms. Supriya Mhaske ts eligible to become a member of the Adarsh CHS and her application for membership is rightly approved by the GOM. uh442 42. Shri Omkar Tiwari, IT Analyst. 57.42. Shri Omkar Tiwari (AS.W. No. 76) is the son of Shri Ramanand Tiwari (AS.W. No.3) who was at the relevant time Principal Secretary of the UDD, Government of Maharashtra. After completing his post graduation, he started working in Tata Consultancy Services, Mumbai. He has stated that he was looking for a house and came to know about the Adarsh CHS. He also stated that he had discussions with his father in connection with his eligibility of becoming a member of the Adarsh CHS in terms of the GR of 1999. He applied for membership of Adarsh by his application dt. 4-5-2006 Exh. MEM-710. In the said application he has given his residential address as B-15 Amaltas Coop Hsg. Society, Juhu Versova Link Road, Andheri (West), Mumbai 400 053. In para 5 of his evidence he has stated that the said flat belongs to his father and that it is a Co-op. Hsg. society of government officers. There is a letter dt. 1-3-2006 Exh. MEM-713 issued by his father Shri Ramanand Tiwari himself stating that the said flat in Amaltas Co-op. Housing Society belongs to him and that his son Omkar stays in that flat temporarily as he has no accommodation of his own. The figure of income stated in the application by him is Rs. 16,667. The information given by him on point nos. 8 to 11 is in the negative. 57.43. Shri Omkar Tiwari was informed by the Adarsh CHS by its letter dt. 12-5-2008 Exh. MEM-714 about the grant of membership of the society by the competent authority. He has a.443 stated that he was allotted flat No. 2002 having carpet area of 650 sq. ft. in A wing. However he has not taken possession of the said flat. He has stated that he has made a total payment of Rs. 70,95 lacs. In his compilation of documents he has included a statement of details of payments made to Adarsh CHS at Exh. MEM-719 which shows that during the period from 9-10-2007 to 12-7-2010 a total payment of 70.95 lacs has been made. The said statement also gives sources from which the same were made. He has stated that he borrowed a loan of Rs. 10 lacs from M/s. Vijay Trading. However, the rest of the amount of Rs. 60.95 lacs appear to have been contributed by his father Shri Ramanand Tiwari and mother Smt. Sheela Tiwari by way of loans. His own contribution appears to be of Rs. 6 lacs only. 57.44. However, the source of finance is not relevant for the purpose of assessing the eligibility of Shri Omkar Tiwari which has to be decided with reference to the condition mentioned in the Annexure A of the GR dt. 25-5-2007. The fact that his father Shri Ramanand Tiwari owns a flat in a Co-op. society in Andheri does not affect his eligibility because he is not dependent on his father and on the date of the application he was 25 years old. Shri Omkar fulfills the other conditions of eligibility and therefore he must be held to be eligible to be a member of the Adarsh CHS and that he has been rightly granted the membership of the said society by the GOM. A!aaa 43. Cdr. Harbhajan Singh (Retd.) 57.45. Cdr. Harbhajan Singh (AS.W. No. 27) retired as a Naval Officer in November 1989 while he was serving in Mumbai. He applied for membership of the Adarsh CHS on 23-8-2002 as per his application Exh. MEM-254. In the said application he has given his residential address as 92, Shangrilla, Colaba Post Office, Mumbai 400 005. In his evidence he has clarified that it is the address of his daughter-in-law who is a private medical practitioner. He has further stated that his son Shri Sakpal Singh is a surgeon in 7 Hills Hospital at Marol, Andheri. In his application he has given his monthly income as Rs. 11,250 which appears to be his monthly pension. He was allotted flat No. 2102 having carpet area of 650 sq. ft. in A wing. According to him he has made a total payment of Rs. 61,69,504 to the society towards the flat allotted to him. However he did not borrow any loan from any bank, In para 9 of his evidence he stated that his daughter - in-law and son paid some amount and he also sold his agricultural land to raise the amount. 57.46. Cdr. Harbhajan Singh has filed a compilation of documents which include a statement of details of payments made to the Adarsh CHS Exh. MEM-257. As per this statement during the period from 11-2-2003 to 29-11-2010 he has paid in all Rs. 61,69,504 to the Adarsh CHS. He has also produced copies of the receipts passed by the society for the said payment. He has 744s also filed bank statements and copies of income tax returns. Taking into consideration all these evidence there is no difficulty to hold that Cdr. Harbhajan Singh is eligible to become a member of the Adarsh CHS and accordingly his membership has been rightly approved by the GOM. 44. Shri Arun S. Adate 57.47, Shri Arun Adate (AS.W. No. 97) is an agriculturist of village Nazare, Taluka Sangola, Dist. Solapur. He has passed 10 standard examination and since 2008 he has been working as a Supervisor in Sinhagad College at Lonawala. He has stated that his father was dealing in grocery articles due to which he got acquainted with Shri Kanhaiyalal Gidwani who told him that a flat was available in Adarsh CHS. Shri Arun Adate has stated that thereafter he made an application dt. 10-7-2004 Exh. MEM-965 for membership of Adarsh CHS. In the said application he has stated his income as Rs. 1,20,000 without specifying whether it is monthly or annually. His information on point nos. 8 to 11 in the application is in the negative. According to him he was allotted flat No. 2202 having carpet area of 650 sq. ft. in A wing and that he has made a total payment of Rs. 63,16,033 to the society towards the price of the said flat. He claims to have raised the finance by borrowing Rs. 10 lacs from his brother Hari, Rs. 12.50,000 from his another brother Kisan, Rs, 9 lacs from his another brother Sanjay and Rs. 2 lacs from his mother Smt. Bhagirathi. He also claims to have borrowed a sum of Rs. 5,45,000 ay446 from Shri Maruti Navle who is the Chairman of Sinhagad Education Society. He further claims to have paid Rs. 30 lacs from his own agricultural income. If we go by the figures of income as stated by Shri Arun Adate , then it becomes very difficult to believe that the figure of Rs. 1,20,000 as stated in his application is true and correct. A person who can afford to save Rs. 30 lacs out of his agricultural income for investing the same in the purchase of a flat in Mumbai must be taken to be earning more than Rs. 1,20,000 per annum. At any rate his monthly income cannot be less than Rs. 20,000 per month. He being a private person, he is bound by the ceiling of income laid down in the GR dt. 25-5-2007. 5748. Consequently, Shri Arun Adate will have to be treated as ineligible to become member of the Adarsh CHS and _ his application for membership is not rightly approved by the GOM. 5. Shri Sanjoy Sh Fi consul 57.49. Shri Sanjoy Shankaran (AS.W. No. 38) is the son of Dr. DK. Shankaran, the former Chief Secretary and Dr. Mrs. Joyce Shankaran former Addl. Chief Secretary of the Govt. of Maharashtra, He applied for membership of Adarsh CHS on 22-3- 2006 as per his application Exh. MEM-330. In the said application he has stated his occupation as Finance Executive but left the column of monthly and annual income blank. However in his supporting affidavit Exh. MEM-313 he has stated his net taxable monthly income as Rs. 16,750. In fact Shri Sanjoy was expected to state his total monthly or yearly income and not net taxable aS i447 income in his application or affidavit. The omission to mention his total income in his application Exh. MEM-330 appears to be deliberate. Moreover, he has not produced copy of his income tax return for the relevant year ie. 2006 when he applied for membership. Taking these facts into consideration, there is every reason to believe that Shri Sanjoy has tried to suppress the true figure of his income in order to show that he is eligible within the income criterion stated in the GR dt. 25-5-2007. His information on points No. 7 to 10 is in the negative. Shri Sanjoy has been allotted flat No. 2302 having carpet area of 650 sq. ft. in Awing. The cost of the said flat which was informed to him as per the letter Exh. MEM-335 is Rs. 59,10,768. By the same letter he was informed that his application for membership of Adarsh CHS was approved by the Competent Authority. 57.50. Shri Sanjoy has however stated that he has made a payment of Rs. 70 lacs to the society. Before the Commission he has stated that he obtained a loan of Rs. 50 lacs from the Union Bank of India as mentioned in the letter dt. 7-5-2009 Exh. MEM- 336 which was paid to him in two instilments; one of Rs. 30 lacs and the other of Rs. 20 lacs. He has stated that this amount was directly paid to the society. In addition, Shri Sanjoy has stated that he borrowed a loan of Rs. 11,40,000 from his father , mother and grand-mother as stated in the statement Exh. MEM-338. He has stated that these loans were interest free loans and no security was given for repayment of the same. Shri Sanjoy has produced a compilation of documents which include receipts of YL44g payments made to the society, bank statements and income tax returns. Since we are of the opinion that the monthly income of Shri Sanjoy Sankaran was at the relevant time more than Rs. 20,000, he becomes ineligible to become a member of the Adarsh CHS. 46. Dr. Sanjay Radkar (Expired) 57.51. Dr. Sanjay Radkar was working as Deputy Secretary, R&FD in Mantralaya at the time when he filed his application dt. 14-7-2004 for membership of Adarsh CHS. In his application he has stated his monthly income as Rs. 22,000. He has been allotted flat No. 2402 having carpet area of 650 sq. ft. in A wing of the Adarsh society. It is seen from the copy of letter dt. 29-12- 2008 addressed by the Secretary of the Adarsh CHS to the Branch Manager of State Bank of India, Nerul branch that Shri Sanjay Radkar had till then made a payment of Rs. 49,77,838 to the society and he was still liable to make further payment of Rs. 15 lacs. 57.52. It is necessary to point out that dr. Sanjay Radkar is now ho more. His brother Shri Satish Radkar, advocate Pune has informed that Dr. Sanjay Radkar and his wife Mrs. Shubhangi Sanjay died in a fatal accident on 19-10-2010 leaving behind them their minor daughter Priyadarshini aged 8 years, Therefore he could not file’. any affidavit before the Commission nor could he appear for giving evidence. An \449 57.53. The application dt. 14-7-2004 filed by Dr. Sanjay Radkar shows that at the time of making the said application he was a member of Jay Mahalakshmi Co-op. society, Tarabai park, Kolhapur. In addition he was a member of Annapurna Co-op. Housing Society, Oshiwara, Mumbai. However he has mentioned in column 9 of the application that he has resigned . However he has not specified as to when he resigned from the membership of the said society nor has he produced any copy of his resignation letter. No document is produced to show that his resignation was accepted by the said society. Taking these facts into consideration it is obvious that at the time of making application for membership of Adarsh CHS, Dr. Sanjay Radkar was a member of other Co-op. Housing Society within the municipal limits of Mumbai and therefore in view of the conditions laid down in Annexure A of the GR dt. 25-5-2007 he was not eligible to become a member. Consequently it will have to be held that the membership granted to him in respect of Adarsh CHS was not proper and correct. 42. Prasad S] Ret lay 57.54. Shri Jagdish Prasad Sharma (ASW. No, 84) is closely related to Shri R.C. Thakur, the Secretary of Adarsh CHS. The daughter of Shri J.PSharma is married to the son of Shri RCThakur. According to him he came to know about the Adarsh CHS from Shri Thakur himself. He filed his application dated nil Exh, MEM-807 in which he has given his monthly income as being a he450 Rs. 12,000. However, a copy of the said application in the Collector's file A-55 bears the date 7-9-1999, His information on point Nos. 8 to 11 is in the negative. It appears that he filed two affidavits dt. 4-3-2003 and 15-4-2008 in support of his application. But he is unable to explain as to why he filed the two affidavits. It may be noted that on his own admission in para 2 of his evidence, Shri J.P.Sharma has got transport business, petrol pump, bar and restaurant. His declared income for the assessment year 2007-08 is Rs. 8,49,700. With this data available on record, it is difficult for us to persuade us to accept that his monthly income was Rs. 12,000 only as stated in the application. 57.55. Shri J.P.Sharma has been allotted flat No. 2502 having carpet area of 650 sq. ft. in A wing. In this connection it is pertinent to note that this flat is adjoining the flat allotted to Shri RC. Thakur. By a letter dt. 19-11-2008 Exh. MEM-810 he was informed that his application for membership was approved by the competent authority and he was called upon to make payment of the balance amount of Rs. 44,10,768. According to him he has made a total payment of Rs. 74,40,000 to the society towards the price of the said flat. As regards the finances raised for buying the said flat, Shri J.P.Sharma has stated that he took a loan of Rs. 25 lacs from San Finance on 26-2-2009. It was an interest free loan without any security. In addition he claims to have borrowed loans of Rs. 50 lacs from his family members. The transactions regarding raising of money as stated by Shri Sharma do not appear to be free from doubt. Having regard to the information w451 available on record, Shri J.P.Sharma is found ineligible to become a member of the Adarsh CHS and his membership applicable has not been rightly approved by the GOM 48. Shri Dhondiram G. Waghmare, Ex. M.L.A. 57.56. Shri Dhondiram Waghmare (AS.W. No.35) is an Ex- MLA who was elected froma reserved constituency of Maan in Satara District. According to him Shri Kanhaiyalal Gidwani informed bm about the availability of a flat in Adarsh CHS and therefore he submitted his application dt. 9-1-2006 Exh, MEM-313 for membership of Adarsh CHS. In the said application he has given his residential address as 505, Sicily Park, Plot No.54, Sector - 12B Kopar Khairne , New Mumbai and stated his monthly income as Rs. 8500. His information on point Nos. 8 to 11 in the application is nil. Shri Waghmare has been allotted flat No. 2602 having carpet area of 650 sq. ft. in A wing. He has stated that he did not get possession of the flat. He has stated that by its letter dt. 30-8-2009 Exh. MEM-318 the society called upon him to pay Rs. 59,10,768 towards the price of the flat. As regards the finance required for buying the said flat, the version of Shri Waghmare before the Commission is that he borrowed a loan of Rs. 59,10,768 from Jai Maharashtra Consumers Pvt. Ltd. which belongs to Shri Sunil Gidwani. He further stated that he has not given any security to the said company towards repayment of the loan borrowed from it and that no interest is charged on the loan amount. So far he has not made any repayment of loan. But even Kh452 then the said company has not filed any suit against him for recovery of the said loan. These facts will be relevant for considering the nature of the real transaction between him and Jai Maharashtra Consumer Pvt. Ltd which we propose to consider later at appropriate stage. 57.57. Any way from the information available on record Shri Wghmare appears to be eligible for becoming member of the Adarsh CHS and he has been rightly granted its membership by the GOM, 49._ Shri Ka ‘anhaiya! 57.58. Shri Kailash Gidwani (AS W.No.4) is the elder son of Shri Kanhaiyalal Gidwani who was the real promoter of the Adarsh CHS as well as its Jt. Secretary. He submitted his application dt. 4- 2-2002 Exh. MEM-9-A in which he has stated his monthly income as Rs, 10,500. His information on point nos. 8 to 11 is in the negative. Shri Kailash Gidwani is the Director of a Private Limited Company called Jai Maharashtra Consumers Pvt.Ltd. His two brothers namely Shri Sunil and Shri Amit are the other directors of the said company. Before the Commission Shri Kailash has stated that he was also a partner of the firm called Gurukripa Sales Corporation during the period from 1993 to 2003 which was dealing in agricultural commodities like sugar and wheat. He has further stated that his main source of income during the said period was trading in agricultural commodities. He was elected as a member of the Managing Committee of the Adarsh CHS. wa453 57.59. Shri Kailash has been allotted flat No. 2702 admeasuring 650 sq. ft. carpet area in A wing. In para 32 of his evidence he has stated that he has so far paid Rs. 56 lacs towards cost of construction and infrastructure funds. He is supposed to pay Rs. 64 lacs for the said flat. In spite of that he has been handed over possession of the flat. In para 40 of his evidence he has stated that his brother Amit has been allotted the adjoining flat bearing No. 2703 while his father Shri Kanhaiyalal Gidwani has been allotted flat No. 2701. Shri Kailash Gidwani has produced a compilation of documents including the statement of payments made to Adarsh CHS, bank statements and income tax returns. 57.60. The evidence of Shri Kailash Gidwani shows that Jai Maharashtra Consumer Pvt. Ltd. of which he is a Director has advanced interest free loans of Rs. 69,40,000 to Shri Dhondiram Waghmare, Rs. 58,75,000 to Shri Sampat Khidse , Rs. 50,84,164 to Shri Arun Dhavle for buying flats in Adarsh CHS, Having regard to this fact, as well as to the business carried by the said company, it is difficult to believe that the monthly income of Shri Kailash Gidwani could be as low as Rs, 10,500 in the year 2002. He was aware of the GR dt. 9-7-1999 and in fact he has annexed a copy thereof to his affidavit filed before the Commission Therefore he seems to be fully conscious of the fact that in order to show his eligibility his income has to be shown as low as below Rs. 20,000 per month. Viewed from this angle it must be said that Shri Kailash Gidwani is not eligible to become a member of the Adarsh CHS since he does not fulfill the requisite criterion of abasa eligibility. Consequently, it must be said that he was wrongly granted membership of the Adarsh CHS. 50. Smt. Kavita Godbole, Business, Garment Export 57.61. Smt. Kavita Godbole (AS.W.No.9) applied for membership of Adarsh CHS as per her application dt. ../02/03 Exh. MEM- 62. In the application she has stated her occupation as business-garment export and the figure of monthly income as Rs. 10,000. Her information regarding point Nos. 8 to 11 is in the negative. Before the Commission she stated that she is residing at Kalyan Nagar, Pune and that she is a self employed business person. The name of her firm is M/s. Kavex which is a proprietary firm. She also owns another firm by name Lotus Pond, which carries business in Mumbai. She has stated that the firm M/s. Kavex was established in the year 1984-85 while the firm M/s. Lotus Pond was established sometime between 1990 and 1992. The offices of both the firms is at 308, Unique Industrial Estate, Bombay Dyeing Compound, Prabhadevi, Mumbai . Smt. Kavita has stated that she knows Shri Kanhaiyalal Gidwani since last 30 years and that in the year 1994-95 she and Shri Kanhaiyalal Gidwani started Apeksha Impex Pvt. Ltd. which carries business of export of garments. 57.62. She has stated that she came to know about the Adarsh CHS from Shri Kanhaiyalal Gidwani and accordingly applied for membership of Adarsh CHS and accordingly forwarded her application Exh. MEM-62 along with a covering letter dt. 20-8- Aly455 2002 to the Secretary of the Adarsh society with a request to grant her application. She has stated that she was allotted flat No. 2802 having 650 sqft carpet area in A wing. She has stated that she has paid Rs. 60 lacs for buying the said flat and that all payments were made by her from her own sources. She has filed a compilation of documents and on the covering page which is marked as Exh. MEM-59 she has stated “No loan from bank. Payment from business. Sale of plot + term loans of bank". Before the Commission she stated that at the time of paying the third or fourth installment, she sold her plot in Pune for Rs. 10 lacs under a registered document. Smt. Kavita Godbole has filed a compilation of documents which includes copies of receipts of payments made to the Adarsh CHS, bank statements and income tax returns. 57.63. Taking into consideration all these facts it will have to be held that Smt. Kavita Godbole is eligible to become member of the Adarsh CHS and that her membership application is rightly granted by the GOM Capt.) P. i 57.64. Capt. P.S. Thampi (AS.W. No.22) was previously serving in Indian Navy as a regular Commissioned Officer from 1981 to April 2007 and he took premature retirement thereafter. At the time of his retirement he was posted in Mumbai He has stated that Lt. Comdr. John Mathew informed him about the formation of Adarsh CHS and accordingly he submitted his application dt. 8-7- a \456 1998 Exh. MEM- 195 for membership of Adarsh CHS. In the said application he has stated his monthly income as Rs. 30,000 per month. His information on point Nos. 9 to 11 is in the negative. 57.65. It is the case of Capt. Thampi that initially he was allotted a flat admeasuring 1076 sq. ft. carpet area but later on the allotment was change and he was allotted flat No. 2902 having carpet area of 650 sq. ft. in A wing. His evidence shows that feeling aggrieved by the change of allotment, he approached the City Civil Court, Mumbai for a direction to allot to him a bigger flat having 1076 sq. ft. That suit is still pending. Moreover, Capt. Thampi has already accepted the allotment of flat No. 2902. It is seen from his evidence that in 2009 the Collector, Mumbai issued a show cause notice to him pointing out that he was holding a flat in Jal Vayu Vihar type B Co-op. Housing Society Itd. Powai, Mumbai-76 and that the Adarsh CHS had therefore requested to re-examine his eligibility for being its member vide Exh. MEM- 199. Inhis reply dt. 14-8-2010, Capt. Thampi admitted the fact of having purchased a flat in the Jal Vayu Vihar society but pointed out that it was only a stop gap arrangement made by him in 2006 and that he had disposed of the said flat. It appears that thereafter no further action was taken by the Collector in the matter. 57.66. Surg.Capt. Thampi has stated he has paid a total sum of Rs. 60,08,322 to the Adarsh CHS towards the price of the said flat. He has produced a statement Exh, MEM-205 giving details of w\-457 payments made to the Adarsh CHS. Two amounts ie. Rs. 5,97,499 and Rs. 10 lacs respectively stated therein were borrowed by him from ICICI bank, Nagpur. In addition he took a housing loan of Rs. 35 lacs from the State Bank of India which fact is evidenced by the letter dt. 13-4-2010 Exh. MEM-208. 57.67. Taking these facts into consideration, Surg.Capt. Thampi appears to be eligible to become a member of the Adarsh CHS and his membership has been rightly approved by the GOM. 52, Smt. Sheetal Vinod Ganju, media consultant. 57.68. Smt. Sheetal Ganju (AS.W. No. 28) is the maternal niece of Major Gen. T.K. Kaul who has been allotted flat No. 3001 in A wing adjoining the flat which has been allotted to her. She has stated that presently she resides in her father’s flat at Dahisar. She came to know about the Adarsh CHS from Major Gen. T.K.Kaul and accordingly applied for membership as per her application dt. nil Exh, MEM-258. The affidavit filed by her in support of her application is dt. 24-4-2009. In the application she has stated her monthly income as Rs. 17,977. Her information on point nos. 7 to. 10 in the application is nil. 57.69. She stated that the initial amount of Rs. 50,000 being the entrance fee was paid by her from her own account. However, so far as the remaining amount is concerned, she borrowed a loan of Rs. 70 lacs from her maternal aunt Smt. Neelu Tej Kaul who is the wife of Major Gen. T.K.Kaul. She further stated that she has executed aloan agreement Exh. MEM-260 dt. 6-4-2009 in favour tL458 of her maternal aunt . As per the said agreement interest at the rate of Rs. 3% per annum is payable by her for the first five years. ‘Thereafter for the second five years the rate of interest is 5% per annum and for the next five years the rate of interest is stated to be 7.5 % per annum. We will consider the nature of this transaction while dealing with issue No.11. But for the present it is sufficient to state that Smt. Sheetal Ganju was eligible to become a member of the Adarsh CHS and accordingly her membership has been rightly approved by the GOM. B. WING FLATS WITH AREA OF 650 SQ. FT. 53. Shri Chandrashekhar R. Gaikwad, Retd. Dy, Engineer, PWD, 58. Shri C.R. Gaikwad (AS.W. No. 43) was serving as Dy. Engineer in the PWD at Pune in the year 2004. On coming to know about the Adarsh CHS, he applied for its membership as per his application dt. 14-7-2004 Exh. MEM-383. In the said application he has stated his monthly income as Rs. 20,000, with basic pay of Rs.11,300. He has further mentioned that he is a member of Mahalaxmi society Tarabai Park, Kolhapur but it appears from his application that neither he nor any member of his family owns any flat or house or is a member of any Co-op. Housing Society within the limits of the area of operation of Adarsh CHS. AL459 58.1. Shri Gaikwad appears to have availed of special leave of 2 years and 46 days during the period from 16-11-2005 to 31-12- 2007 and during that period he was permitted to get himself engaged in any private service or carry on any business not connected with his duties as a government servant. He has produced a copy of this order dt. 7-11-2005 at Exh. MEM-402. His evidence shows that during that period he was carrying on business of real estate consultancy. He further stated that he was Director of Satellite Hospitality and Management Services Pvt. Ltd. Pune and was getting remuneration from Satellite Hospitality and Management Services Pvt. Ltd, Pune and was getting remuneration of Rs.30,000 per month, 58.2. Shri Gaikwad has been allotted flat No. 503 having carpet area of 650 sq. ft. in B wing. The total cost of the said flat is Rs. 59,65,000. He has stated he had obtained a loan of Rs. 50,000 on 15-7-2004 to make the initial payment. Thereafter he obtained two loans of Rs. 2,50,000 and Rs. 6,50,000 from one Brijendrakumar Tiwari. In addition he also obtained a loan of Rs. 8,11,175 from one Shri Habib Farooqui. He also stated that he received Rs. 5,99,000 from the sale of his immovable property at Kolhapur. However he does not appear to have informed the government about these transactions. Shri Gaikwad has filed a compilation of documents including a statement of loans accepted and returned from friends and relatives. The total amount of loan as per this statement is Rs. 40,86,175 and that includes a loan of Rs. 18.25 lacs from his own wife Mrs. Neha th460 Gaikwad, However in his application Exh. MEM-383. Shri Gaikwad had not mentioned the income of his wife. 58.3. Shri Gaikwad’s monthly income, on his own admission being more than Rs. 20,000, he cannot be said to have fulfilled the eligibility criterion to become a member of the Adarsh CHS. ‘Therefore it will have to be held that his membership application has not been rightly approved by the GOM. 4. SI usines: 584. Shri Sidharth Gamre (ASW. NO. 12) applied for membership of Adarsh CHS as per his application dt. 9-9-2007 Exh. MEM-93 wherein he has given his residential address as 6/63, New Police Camp, Petit Mill Compound, Tardeo, Mumbai - 400 034. Before the Commission he has stated that his younger brother is a Police Constable and that he resides with him in his quarters in the police colony. Although in his application he has mentioned his occupation as business (real estate), he has not specified any amount of monthly or annual income therein. However in the supporting affidavit which does not bear any date but only month and year as January 2010 he has specified his total income inclusive of all sources of himself and his family members as Rs. 15,000 per month. Copy of extract of his ration card at page 6 of the file A-55 shows that his family consists of his father, mother, brother, brother's wife, uncle and cousin brothers etc. However, the income of other earning members of the family is not taken into consideration while making the a461 application as well as the affidavit. Taking into consideration that his younger brother Suresh is a police constable, it is obvious that the monthly income of Suresh must not be less than Rs. 10,000. This fact was not taken into consideration by the Collector, while scrutinizing the application of Shri Sidharth Gamre. It will thus be seen that the income of two members of the family of Shri Sidharth Gamre, including himself is around Rs. 25,000 per month. He is not a government servant and therefore he would not be eligible for getting a flat in the Adarsh CHS. His information on points Nos. 8 to 11 in the application is nil. 58.5. Shri Gamre belongs to Nav Buddh Community which is recognized as a Scheduled Caste. He has produced his caste certificate. He has been allotted flat No. 603 having carpet area of 650 sq. ft. in B wing for which he claims to have paid Rs. 64,55,768 to the society. In para 7 of his evidence Shri Gamre has stated, "I paid this amount not from my own bank account but from the amount which | had with Lodha group”. It is seen that the entire amount of Rs. 64,55,768 has been paid by Manager’s cheque drawn on HDFC bank, Mumbai (Exh. MEM-101). This fact also go to show that the statement made by Shri Gamre in his affidavit that his monthly income is Rs. 15,000 cannot be true. We are not satisfied that Shri Sidharth Gamre is eligible to become a member of the Adarsh CHS and in our opinion, membership has been granted to him without having regard to his real income as discussed above. al462 55. Shri Bhavesh Ambalal Patel -Business. 58.6. Shri Bhavesh Ambalal Patel (AS.W. No. 30) applied for membership of Adarsh CHS as per his application Exh. MEM-268 which does not bear any date. But before the Commission he stated that he applied around 28-7-2009. His address in the application is given as 2/16, Sherry House, Rustom Sidhwa Marg, Fort-1, 40, Viva Vida Maker Arcade, Cuffe Parade, Mumbai-5. In the application his occupation is stated as “Business partner” and the figure of monthly income is stated to be Rs. 15,000. The information with regard to point Nos. 8 to 11 in the application is nil. Shri Patel has been allotted flat No. 703 having carpet area of 650 sq. ft. in B wing for which the total consideration paid by him is Rs. 70,51,000. In para 8 of his evidence he stated that he did not take any loan from any bank for the purpose of making payment to the society towards the purchase of the said flat and that the entire amount of Rs. 70.50 lacs came from his own account. He further stated that he had taken two loans, of Rs. 55 lacs and Rs. 5 lacs from his mother and that these amounts have been shown in the mother’s income tax returns. Shri Bhavesh Patel has stated that he is managing a liquor store in Cuffe Parade in partnership with his mother Smt. Diwaliben Ambalal Patel. The name of the firm is Patel Wines. 58.7. Shri Bhavesh Patel has however not taken into consideration the income of his mother Smt. Diwaliben who is a member of his family as well as partner in his business. Shri wh463 Bhavesh Patel was called upon to produce the copies of the income tax returns of his mother Diwaliben. Accordingly he has produced copies of her income tax returns for the assessment years 2006-2007 to 2010-2011. Copy of her income tax return for the assessment year 2008-09 at page 32 of Exh. MEM-321 colly. shows that the gross total income of Smt. Diwaliben was Rs. 16,53,192. It may be noted that while assessing the eligibility of an applicant to become a member of a Co-op. Housing Society to which government land is granted, it is not only the individual income of the applicant but the income of his entire family has to be taken into consideration as per the GR dt. 25-5-2007. It is however found that the eligibility of Shir Bhavesh Patel has been assessed only on the basis of his individual income. This is not proper and correct. After taking into consideration the income of his mother Smt. Diwaliben it will have to be held that Shri Bhavesh Patel is not eligible to become a member of the Adarsh CHS. Consequently his membership has not been properly granted. inand _S. Bi 588. Shri Anand Bharose (AS. W. No. 81) is a resident of Parbhani. At present he is working as Vice President of Agricultural Produce Market Committee, Parbhani. But in the year 2004 when he applied for membership of Adarsh CHS he was studying as well as doing agriculture. He has stated that his father Shri Sheshrao Dhondji Bharose was the President of Zilla ALS464 Parishad in 1995 and he was known to Shri Kanhaiyalal Gidwani. In 2004 Shri Anand Bharose was doing his law at the Law College, Parbhani but he had no intention to shift to Mumbai for legal practice. However he used to frequently visit Mumbai in connection with politics. Shri Anand Bharose is the borhter-in- law of Shri H.K. Jawale who was working as Personal Secretary to Shri Shivajirao Nilengekar Patil who was then Revenue Minister in 2004. 58.9, Shri Anand Bharose applied for membership of Adarsh CHS as per his application dt. 20-2-2004 Exh. MEM- 779 and 780. In the said application he has stated his income as Rs. 10,000 per month. His information on point nos. 8 to 11 is however in the negative. Shri Anand Bharose has been allotted flat No. 803 having carpet area of 650 sq. ft. in B wing for which he claims to have made a total payment of Rs.62,46,273. According to him, he obtained a loan of Rs. 42 lacs from State Bank of India and Rs. 25 lacs from the Abhyudaya Bank, Fort branch. He has produced a compilation of documents which includes a statement showing details of bank name and payments made against the flat, Exh. MEM-784, It is seen from the said statement that he had borrowed a loan of Rs. 10,49,500 from Sanjivani Bank, Parbhani. The other documents includes bank statements and copies of his income tax returns. Taking into consideration all the evidence , Shri Anand Bharose appears to be an eligible person to become member of the Adarsh CHS and accordingly he has been rightly granted the membership thereof by the GOM. \ iy465 Shri Sudhakar Laxmai ce 58.10. Shri Sudhakar Madke (ASW. No. 13) is a resident of Nagpur. He belongs to Mahar caste which is a Scheduled Caste. He has produced his caste certificate. Shri Madke has studied up 8 vernacular standard but he cannot read and write English. He visited Colaba for the first time in the year 2002. He works as a driver with Shri Abhay Sancheti who is a builder and financier of Nagpur. According to him Shri Thakur used to visit the office of Shri Sancheti and he told him about the availability of a flat in Adarsh CHS. He therefore submitted his application dt. 15-2- 2001 Exh. MEM-109 for membership of Adarsh CHS. In the application he has. stated his monthly income as Rs. 8,600. His information on points nos. 8 to 11 is in the negative. 58.11. Shri Madke has been allotted flat No. 903 having carpet area of 650 sq. ft. in B wing. But he did not get possession thereof. He claims to have paid an amount of Rs. 60 lacs to the society towards the price of the said flat. According to him he obtained a loan from his employer to make the said payment. Thus his own contribution towards the price of the flat appears to be nil. The question whether Shri Madke is the real purchaser or not is a different issue which can be considered while dealing with issue no.11. But so far as_ his eligibility is concerned, he fulfills the requisite conditions and therefore he must be said to have been rightly granted membership of Adarsh CHS by the GOM. \ the466 58.12. Shri Paramveer Abhay Sancheti (AS.W. No. 77) is the son of Shri Abhay Sancheti who is the Director of SMS Infrastructure Limited. He applied for membership of Adarsh CHS as per his application dt. 26-4-2006 Exh, MEM-722 in which he has stated his age as 19 yrs. And 8 months and the occupation as service with monthly income of Rs. 13,630 per month. His information on points nos. 8 to 11 is in the negative. Before the Commission he has stated in para 6 of his evidence that on the date of the application for membership of Adarsh CHS he was only a student and was studying at Coimbatore. According to him, his father told him that it was a good investment to buy a flat in Adarsh CHS and therefore he applied for membership. It appears that Shri R.C. Thakur was known to his father and from him he came to know about the Adarsh CHS. 58.13. It appears from the letter dt. 8-4-2008 Exh. MEM-726 addressed by the Collector Smt. Kundan to the Secretary of the Adarsh CHS that Shri Paramveer Sancheti was declared ineligible as he completed 18 years of age on 17-11-2005 and that he had not submitted income tax returns of past three years. It is further seen that Shri Paramveer Sancheti filed a revision application before the Minister of State for Revenue against the order passed by the Collector, Mumbai declaring him as ineligible. The Hon. Minister of State Shri Rana Jagjit Singh Patil by his order dt. 11-2- 2009 allowed the revision application and declared Shri ke467 Paramveer Sancheti as eligible in view of the fact that by that time copies of income tax returns for past three years were submitted by him. 58.14. Shri Paramveer Sancheti has been allotted flat No. 1003 having carpet area of 650 sq. ft. in B wing. He has stated that he has paid Rs. 71 lacs to the Adarsh CHS as the price of the said flat. He has further stated that the entire amount of Rs. 71 lacs was taken by him as loan from San Finance, Nagpur. In this connection it may be noted that as per the version of Shri Paramveer his father Shir Abhay Sancheti is a partner of San Finance Corporation. In addition he is also a Director of SMS Infrastructure Ltd. Copy of the ration card shows that Shri Paramveer is a member of the family of his father Shri Abhay Sancheti. However in his application Exh. MEM-722 no mention is made to the income of his family. This appears to have been done consciously in order to bring Shri Paramveer within the financial limits of eligibility. The Commission has noticed that San Finance Corporation has given finances running into several crores of rupees to ten members of the Adarsh CHS namely, 1) Suresh Atram, 2) Paramveer Sancheti, 3) P.H. Ram, 4) Parmanand K. Hinduja, 5) Manilal Thakur, 6) Rajesh Bora, 7) Sudhakar Madke, 8) Amarjit Singh, 9) Amarjit Singh Waghmare, and 10) J.P. Sharma. The purpose of stating this fact is only to point out that for the purpose of assessing eligibility with reference to the GR dt. 25-5- 2007, the income of not only the applicant member but his entire family has to be taken into consideration. Therefore in any event a468 the income of the family of Shri Paramveer Sancheti was more than Rs. 20,000 per month and this fact would render him ineligible to become a member of the Adarsh CHS. However the application of Shri Paramveer Sancheti has not been scrutinized from this angle and therefore he is improperly declared as eligible. 59, Shri Parmanand K. Hindi td, e Superintendeni (DEO). 58.15. Shri Parmanand Hinduja (AS.W. No. 21) was working in Defence Estate Office and he retired on 31-1-1989. Since beginning he was acquainted with Shri R.C. Thakur from whom he came to know about the Adarsh CHS. _ Before the Commission he has stated in para 8 of his evidence that he had a dream to have a flat in Mumbai. He therefore applied on 25-3-1996 for membership of Adarsh CHS as per his application Exh. MEM-186. In the said application he has stated his monthly income as Rs. 12,464 and added that his spouse's income is nil. His information on point nos. 8 to 11 is in the negative. Although his application is dated 25-3-1996, his supporting affidavit Exh. MEM- 187 is dt. 25-2-2003. 58.16. Shri Hinduja has been allotted flat No. 1103 having carpet area of 650 sq. ft. in B wing. He has filed a compilation of documents which contains a statement showing payments made on his behalf to the Adarsh CHS during the period from 13-9-2004 to 12-7-2010. The total amount paid to the society is Rs. aS469 65,58,500 His evidence shows that except the amount of Rs. 50,000, the rest of the consideration amount was borrowed by him from San Finance Corporation, Nagpur. He has produced a copy of the letter dt. 8-12-2010 along with the statement Exh. MEM-189 which certifies that the loan given to him amounts to Rs. 65,58,500. In para 11 of his evidence Shri Hinduja has stated that it was Shri R.C. Thakur who introduced him to Shri Abhay Sancheti of San Finance Corporation sometime between 2002 and 2004. We shall consider the nature of the said transaction while dealing with issue No.11. For the present it is sufficient to state that the entire consideration amount has been paid to the Adarsh CHS on behalf of Shri Hinduja and that he was also put in possession of the flat allotted to him. Shri Hinduja complies with the requisite conditions of the GR dt. 25-5-2007 and therefore he is eligible to become member of the Adarsh CHS and accordingly his membership has been rightly approved by the GOM. Shri tani 58.17. Shri Madanlal Sharma (AS.W. No. 70) , now 84 years old applied for membership of Adarsh CHS as per his application dt. 13-8-2009 Exh. MEM-650. In the said application he has given his residential address as 501 Andheri Ideal Co-op. Housing Society Ltd. CTS 338, Survey No,29, Gundavali, Andheri (E), Mumbai 400 060. He has stated his income in the said application as Rs. 18,500 p.m. and Rs. 2,22,000 per annum. His information on points nos, 8 to 11 is in the negative. However the information \ wh470 given by him on point nos. 8 to 11 is false in view of what he has admitted before the Commission in para 4 of his evidence, which reads , “At the time of filling up the said application form, the flat at Andheri was owned and possessed by me. Therefore the answer “NA.” (not applicable) given to clause 8 in the application is not correct. The flat in Andheri stands in my name. In view of my owning a flat in Andheri the reply given at clause 9 to the effect “N.A." in the application is incorrect.” The fact disclosed by Shri Madanlal Sharma through his admission is enough to show that he was not eligible to become a member of the Adarsh CHS. 58.18. It may be pointed out that Shri Madanlal Sharma is the brother of Shri Manoharlal Sharma, whose daughter Ms. Amita is married to Shri Ashok Chavan, the former Chief Minister of Maharashtra. In para 10 of his evidence Shri Sharma has admitted, ” Shri Ashok Chavan was the CM of Maharashtra State during the period when I made my application for membership on 13-9-2009 and when my application for membership of Adarsh CHS was approved on 30-8-2009". Shri Sharma has been allotted flat No. 1203 having carpet area of 650 sq. ft. in B wing. Shri Sharma is single and although he has stated in his application his monthly income as Rs. 18,500 the entire consideration amount of Rs. 70,51,118 except a small amount of Rs. 350, as stated in Exh MEM-661, was borrowed by him from one Shri Malav Shah of Pune. In para 9 of his evidence Shri Sharma stated that he does not know Shri Malav Shah personally but knows his grand- father Shri Hiralal Shah who is a family friend. We shall consider the aan nature of the transaction between Shri Sharma and Shri Malav Shah when we deal with issue No.11. Shri Sharma has stated that he has now resigned from the membership of the Adarsh CHS. But there is nothing to show that his resignation has been accepted. For the present it is sufficient to conclude that Shri Madanlal Sharma was ineligible to become a member of the Adarsh CHS but his membership has been wrongly approved by the GOM. shalt lousehold wort 58.19, Smt. Sushila Shaligram applied for membership of Adarsh CHS on 17-7-1998 as per her application Exh. IW-103. Her application shows that at that time she was residing at Chaitraban Residency, Block No. H/7 off ITI road, Aundh , Pune-7. In the said application she has stated her monthly income as Rs. 2000 approximately (pensionable income) However in the supporting affidavit/undertaking dt. 7-3-2003 Exh. IW-105 she has_ stated her total income inclusive of family income at Rs. 10,000 p.m. Smt. Sushila Shaligram was informed by the society as per its letter dt. 1-10-2009 Exh. [W-106 that she was allotted flat No. 1303 having carpet area of 650 sq. ft. in B wing. It appears from the evidence of her grand-daughter Ms. Sumeela Sethi that Smt. Sushila Shaligram has paid Rs. 60 lacs for the said flat. It is necessary to point out that Smt. Sushila Shaligram passed away in May 2005 as stated by her son Shri Subhash Lalla (LW.No.7) and_ grand-daughter Ms. Sumeela Sethi (AS.w.No.33). wh472 Ms. Sumeela Sethi has produced a copy of the nomination form dt. 7-9-2004 Exh. MEM-302 purporting to have been executed by her grand-mother Smt. Sushila Shaligram, Ms. Sumeela Sethi has stated before the Commission “As on today I am holding two flats in Adarsh CHS, One in my own name and the other in the name of my late grand-mother.” In the absence of the evidence of Smt. Sushila Shaligram it is not possible to say anything about her eligibility to become a member of the Adarsh CHS. 62. Shri Malav Jayant Shah - Business. 58.20. Shri Malav Shah (AS.W. No. 60) was a boy of 18 years and 8 months when he applied for membership of Adarsh CHS as per his application dt, 18-6-2004 Exh. MEM-543. if he has correctly stated his birth date and age in the application, then on the date of the application i.e, 18-6-2004 he would be a boy of 21 years. It therefore appears that the date on the application was subsequently written. It is however strange to find that his supporting affidavit is dt. 7-2-2003 ie. nearly 8 months before he made the application. In the said application he has stated his ‘occupation as business and monthly income as Rs. 11,000. His information on points Nos. 8 to 11 in the application is in the negative. 58.21. It may be noted that Shri Malav Shah is the son of Shri Jayant Shah who is a partner of M/s. Jairaj Developers, Pune. It also appears that Shri Malav Shah himself is one of the partners. Shri Malay Shah has been allotted flat No. 1403 having carpet area |473 of 650 sq. ft. in B wing. He has stated that he has paid a total amount of Rs. 61,14,231 towards the price of the said flat. He has produced a compilation of documents which includes a summary of payments made by him to Adarsh CHS towards the cost of the flat Exh. MEM-549, This statement shows that out of the amount of Rs. 61,14,231, an amount of Rs. 10.95 lacs were drawn from the saving account of his father Shri Jayant Shah while rest of the amounts were drawn from his own account. His compilation includes copies of drafts given to the Adarsh CHS, bank statement and income tax returns, It is found that Shri Malav Shah fulfills all the requirements contemplated by the GR dt. 25-5-2007 regarding eligibility and there is nothing adverse which affects his eligibility. Therefore there is no difficulty in holding him eligible for membership of Adarsh CHS which has been rightly granted to him by the GOM. 63. Shri Kiran Bhandage Service. 58.22. Shri Kiran Bhadange (AS.W.No. 6) belongs to Mahar caste which is a Scheduled Caste. He applied for membership of Adarsh CHS as per his application dt. 13-2-2002 Exh. MEM-34 in which he has given his monthly income as Rs. 9,500. His information on point nos. 8 to 10 in the application is in the negative. He has been allotted flat No. 1503 having carpet area of 650 sq. ft. in B wing. He has produced a compilation of documents which contains a statement regarding payments made by him or on his behalf to the Adarsh CHS towards the price of the flat allotted to AL)474 him Exh. MEM-38. As per this statement the total received by the society appears to be Rs. 52,25,456 and the amount due was Rs. 10,90,350. It therefore means that the total price of the flat was around Rs. 63 lacs. In para 6 of his evidence he has stated about the amounts which were paid to him by Mrs. Devi Gidwani who is the wife of Shri Kanhaiyalal Gidwani. The total of these amounts comes to Rs. 34.70 lacs. He has further stated that all these amounts were given to him interest free and he has not yet repaid any amount. Shri Bhadange has stated that he has resigned from the membership of Adarsh CHS as his financial capacity was not good enough to pay Rs. 55 lacs. According to him he had already taken a loan of Rs. 52 lacs from Shri Gidwani but his capacity to repay was only upto Rs. 30 to Rs. 35 lacs. However he has not received any reply in writing about the acceptance of his resignation. Shri Bhadange fulfills the eligibility conditions prescribed by the GR dt. 25-5-2007. Therefore it will have to be held that his membership was rightly approved by the GOM. 64. Shivaji Shankar Kale - Government Contractor. 58.23. Shri Shivaji Kale (AS.W. No. 67) has been allotted flat No. 1603in B wing having carpet area of 650 sq.ft. He has stated that he works as a Government contractor and he carries this business mostly in Pune and sometimes in Mumbai. According to him Shri Sanjay Radkar Dy. Collector, Navi Mumbai was his friend and_he told him about the Adarsh CHS. Accordingly he applied for membership of Adarsh CHS as per his application dt. 12-7-2004 KY47s Exh. MEM-625. In the said application he has mentioned his occupation as service and income as Rs. 1,44,000 without specifying whether it is monthly or annual. However, this fact need not detain us more because in para 3 of his evidence Shri Kale has stated ,"Item No.4 which refers to my monthly or annual income as being Rs. 1,44,000 is not correct. At the time of making this application my annual income was around Rs. 4 lacs.” Similarly in para 4 of his evidence he has stated that the mention of his occupation as “service” in his application is not a correct statement. Whatever it may be the fact is that Shri Shivaji Kale, cannot be treated as eligible to become member of the Adarsh CHS because on his own admission his income at the time of making the application was around Rs. 4 lacs. Shri Kale not being a government servant and he comes under the category of beneficiaries who are not government servants. As already discussed a person having income of more than Rs. 20,000 becomes ineligible and not entitled to the benefit of the GR dt. 25- 5-2007. It must therefore be held that the approval given to the membership of Shri Shivaji Kale was not proper and correct. 65. 58.24. Ms. Rupali Raorane (AS.W.No. 83) is a resident of Kankavli Dist. Sindhudurg, She has stated that she is a Director of Sindhdurg Infracstructure Pvt. Ltd, and also the Proprietor of Sai Sidhhi Agencies having dealership of Indian Oil Corporation. She has further stated that the petrol dealership is there since last my476 12 years, Her father Shri Harishchandra Babajirao Raorane is a worker of Congress party and Secretary of INTUC. According to her Shri Kanhaiyalal Gidwani told her father about the availability of a flat in Adarsh CHS. She therefore applied for membership of the said society as per her application dt. 7-7- 2007 Exh. MEM-799. In her application she has not specified her monthly or annual income but only stated “As per statement’. Her information with regard to point nos. 8 to 11 in the application is in the negative. In her supporting affidavit dt. 29-8- 2008 Exh. MEM-801 she has affirmed that the total income of herself and her family members from all sources is Rs. 19,852 per month. The copy of her income tax return for the assessment year 2007-2008 which she has produced in her compilation gives her gross total income as Rs. 238,220. Having regard to the fact that she is a Director of Sindhudurg Infrastructure Pvt. Ltd., which has the business of metal crusher and being the Proprietor of Sai Sidhi Agencies having dealership of Indian Oil Corporation for about 12 years, it is difficult to believe that her monthly income at the relevant time could be less than Rs. 20,000. It appears that she has made a conscious attempt to understate her real income to get rid of the income limit provided in the GR dt. 25-5-2007 which would bar her eligibility to become a member of the Adarsh CHS. In this connection it is pertinent to note that the copies of income tax returns filed by Ms. Rupali for subsequent years disclosed comparatively a much higher income. For instance her income for the assessment year 2008-2009 is Rs. 7,45,160, that eua7 for the assessment year 2009-2010 it is Rs. 9,86,577 and that for the assessment year 2010-2011 it is Rs. 12,18,503. This high figures of income for immediately subsequent periods thus justify our inference that during the relevant period the income of Ms. Rupali must have been much more than Rs. 20,000 p.m. 58.25. Ms. Rupali Raorane has been allotted flat No. 1703 having carpet area of 650 sq, ft. in B wing and she claims to have paid price of Rs, 65,05,768 for the same. Before the Commission she stated that she paid this amount by obtaining loan from Super- line Construction. This fact is confirmed bya letter dt. 24-5-2012 Exh. MEM-804 addressed to her by Superline Construction, Ghatkopar (West), Mumbai. As regards the nature of the said loan transaction, we propose to deal with the same while considering the issue no.11. Having regard to the income of Ms. Rupali Raorane, as stated above, she becomes ineligible to become member of the Adarsh CHS since her income is above the prescribed limit under the GR dt. 25-5-2007. Consequently it will have to be held that her membership of the Adarsh CHS has not been properly granted by the GOM. 66. Brig. M.M. Wanchu- (Retd.) 58.26. Brig. MM. Wanchu (AS.W. No. 78) retired from Army in 1990 After his retirement he joined Tata Power Company, Mumbai and continued with that company for about 8 years. Thereafter he settled in Pune in his own house in Salunke Vihar, Kondhwa. He got acquainted with Shri R.C. Thakur during the an478 period from 1983 to 1986 when both of them were at Kamptee at Nagpur. Brig. Wanchu has stated that Shri Thakur mooted the idea of forming a society of Army people to which he agreed and also participated in the formation of the Adarsh CHS initially as Chairman. 58.27. Brig. Wanchu applied for the membership of adarsh CHS as per his application dt. 12-12-1998 Exh. MEM-774. In the said application he has mentioned his monthly income as Rs. 9550 per month and that of his spouse as nil. His information on point nos. 8 to 11 in the application is in the negative. Brig. Wanchu has been allotted flat No. 1803 having carpet area of 650 sw. ft. in B wing . In para 51 of his evidence before the Commission he stated that he has paid Rs. 59,57,860 to the society towards the price of the said flat and that the said amount is all his savings from 40 yea’s service. He did not obtain any loan from any bank. Brig. Wanchu had filed a compilation of documents which include a statement regarding details of payments, made to the Adarsh CHS, bank statements and copies of income tax returns, Considering his evidence coupled with the documents on record it is found that Brig. Wanchu is eligible to become member of the Adarsh CHS and his membership has been rightly approved by the GOM. 58.28, Shri R.M. Bhosale (AS.W. No.64) has been working as Asstt. Teacher in Vidyapeeth High School and Jr. College, Kolhapur a479 since last 33 years. He has stated that Shri Umesh Shinde who is a builder and proprietor of Raj Devendra Construction Co.Pvt Ltd, Kolhapur is the Chairman of his school. Shri Bhosale has stated that Shri Kanhaiyalal Gidwani told him to apply for membership of the Adarsh CHS and accordingly he submitted his application dt. 23-7-2004 Exh. MEM-596 for membership of Adarsh CHS. In the application Shri Bhosale has stated his average monthly income of previous three years as Rs. 10,500. His information on point nos. 9 to 11 in the application is in the negative. He has mentioned that hi aying on rent ina flat at Kolhapur. 58.29. Shri Bhosale has been allotted flat No. 1903 having carpet area of 650 sq, ft. in B wing. He has stated that he has made a total payment of Rs. 52 lacs towards the price of the said flat. He has filed a compilation of documents which includes a statement of payment and sources of funds for the said flat Exh. MEM-603. As per this statement the total payment which he appears to have made to the Adarsh CHS is Rs. 52,11,000. Out of this amount his own contribution appears to be only of Rs. 50,000 paid in cash. However, this statement does not appear to be correct in view of what he has stated in para 14 of his evidence to the effect that the amount of Rs. 50,000 was paid by a DD dt. 10-2-2003 Exh. MEM- 607. The statement Exh. MEM-603 shows that Shri Sangram Gade gave him a total loan of Rs. 13.50 lacs while Shri Umesh Shinde gave him a loan of Rs. 38,11 ,500. Shri Bhosale has stated that he has not been given physical possession of the flat allotted480 to him. As per the evidence of Shri Bhosale both the loans given to him were without any security and interest. We will consider the nature of this transaction while dealing with issue no.11. However, so far as the question of eligibility of Shri Bhosale is concerned, he is found eligible to become a member of the Adarsh CHS and has been rightly granted the membership by the GOM Is. Sol Suresh Kolhapure ~Director of Co: 58.30. Ms. Soniya Kolhapure (AS.W. No. 90) applied for membership of Adarsh CHS as per her application dt. 30-7-2004 Exh. MEM-873. It appears that at the time of making the said application she was 18 years old and she has stated her occupation as student and service. In the said application her monthly income is shown as Rs. 11,000. Her information with regard to point nos. 8 to 11 in the application is in the negative. Presently Ms, Soniya is working as Director of Sunako Constructions Pvt. Ltd. of which her father Shri Suresh Narayan Kolhapure, her mother and sister all are Directors and share holders of that company. In addition Ms. Soniya is also director of Sunako Kemo Pvt. Ltd., Sunako Trading and Investment Pvt. Ltd. and Satyam Erectors. 58.31. Ms. Soniya has stated that Shri Kanhaiyalal Gidwani told her father about the availability of a flat in Adarsh CHS and thereafter she made her application Exh. MEM-873 for the membership of Adarsh CHS. Ms. Soniya has been allotted flat No. 2003 having carpet area of 650 sq. ft. in B wing for which she he481 claims to have paid total amount of Rs. 61,12,636. As regards the source of this finance her version is that she had taken a loan of Rs. 64,02,000 as stated in the statement Exh. MEM-877. It is seen from the said statement that she was given major finance by her father while her mother gave her a loan of Rs. 5.50 lacs. Her own contribution as per this statement is Rs. 2.97 lacs. Ms. Soniya has produced a compilation of documents which includes bank statements, copies of income tax returns and other documents. ‘Taking into consideration the oral evidence of Ms. Soniya and the documents produced by her, there appears to be no doubt about her eligibility to become a member of the Adarsh CHS and she has been rightly granted membership of the same by the GOM. 69. Shri Ranjit Chintamani Sangitra 58.32. Shri Ranjit Sangitrao (AS.W. No. 68) is the son of Shri Chintamani Sangitrao and he has been allotted flat No. 2103 in B wing having carpet area of 650 sq. ft. He is the son of Shri Chintamani Sangitrao, who retired as Secretary, Transport, State Excise and Ports Department in September 2010 and was also the Secretary to the Chief Minister. Shri Ranjit is B.E. of Mumbai University and also done his MBA from Singapore. He applied for membership of Adarsh CHS as per his application Exh. MEM-633 on 7-6-2007. In the application he has mentioned his occupation as “Small business (student)” and his income as Rs. 15,550 without specifying whether it is monthly or annual. However in482 the supporting affidavit of the same date Exh, MEM-638 he has affirmed that the said income is his monthly income. 58.33. Before the Commission Shri Ranjit stated that he does not own any flat in Mumbai. However, his father owns a residential flat in Jasmin Co-op. Housing Society, Bandra (East), Mumbai and his brother Vikram owns a flat in Andheri. He also stated that his sister Mrs. Rucha Mistry owns a flat in Sai Prasad Building at Bandra (East). He has further stated, “ have a commercial property in Andheri from which I get a monthly income of Rs. 3.5 lakhs. | acquired a gala in the year 2004 for an amount of Rs. 11 lakhs, It is located in Andheri (E). I rented it out. The monthly income of that was Rs. 19,000 p.m. These two properties are different’. 58.34, This statement made by Shri Ranjit clearly shows that the figure of income stated in his application Exh. MEM-633 is not true and correct and that his actual income exceeds far more than that. Shri Ranjit is not a government servant. He therefore falls in the category of the beneficiaries who are not government servants, As already pointed out the maximum permissible limit of income for a beneficiary falling under this category is Rs. 20,000 per month. On his own admission, the income of Shri Ranjit is obviously much more than that. Therefore he is not eligible to become a member of the Adarsh CHS and the membership granted to him is not proper and correct. thy483, 0. Shivajirao C. Deshmukh- Retd. Government Servant. 58.35. Shri Shivajirao Deshmukh (AS.W.No. 59) was in government service and he retired on 31-3-2004 as Secretary (Marketing & Corporation Dept.) to the Government of Maharashtra. He applied for membership of Adarsh CHS six days before his retirement ie. on 25-3-2004 as per his application Exh. MEM-535. In the said application he has given his income as Rs. 32,941 without specifying whether it is monthly or annual. But in the supporting affidavit of the same date exh. MEM-536 he has affirmed that his monthly income is Rs.32,941. The information given by him on point nos. 8 to 11 in the application is in the negative. 58.36. Shri Deshmukh has been allotted flat No. 2203 having carpet area of 650 sq. ft. in B wing. He has stated that he has made a total payment of Rs. 59,51,274 towards the price of the said flat in the Adarsh CHS. He has filed a compilation of documents which contains details of payment made by him for the allotment of the said flat Exh. MEM-540. This statement shows that his own contribution has been of Rs. 34,81,274 and the remaining amount of Rs. 24,70,000 was raised by him by way of loans. In para 10 of his evidence before the Commission he stated that he got Rs. 20,78,000 as retirement benefits. He further stated that he has an HUF of which he himself , his wife, son and daughter are members. The HUF owns agricultural land in Sangamner and Shevgaon Talukas in Ahmednagar district and a4g the income from those lands is the HUF income. He also owns a bungalow in Pune which he has given on rent. His son Dhairyasheel is Managing Director of Bank of America, Merrylynch, in USA. The compilation filed by Shri Deshmukh includes copies of the cheques issued in favour of the Adarsh CHS as well as the receipts of payment passed by it. The compilation also includes his bank statements and income tax returns. Taking into consideration his own statement along with the documents produced by him, it is found that Shri Deshmukh is eligible to become member of the Adarsh CHS. He falls under A group as per the 5 Pay Commission which entitles him to a flat with FSI of 1076 sq. ft. But he has been allotted a flat of 650 sq.ft. area. Anyway he does not appear to have any grievance about it. The membership granted to Shri Deshmukh is rightly approved by the GOM. Z Phulasing Rajput shri Sandu: 58.37. Shri Sandusing Rajput (AS.W. No. 83) has been working in a private organization called Bejo Sheetal Seeds Pvt. Ltd. at Jalna. One Shri Suresh Omkardas Agarwal is the Director and Chairman of this company. According to him in 1998 hehad been to Mantralaya along with Shri Ravindra Agarwal who introduced him to Shri R.C. Thakur. He further stated that Shri Thakur asked him about his caste and on his disclosing that he belong to VJNT, Shri Thakur told him that a flat was available in the Adarsh CHS for VINT and that he could apply for the same. Accordingly Shri LY485 Rajput submitted his application dt. 3-7-1998 Exh. MEM-814 for membership of Adarsh CHS. In the application he has given his income as Rs. 12,200 which appears to be his monthly income. His information on point nos. 8 to 11 in the application is in the negative. 58.38. Shri Rajput has been allotted flat No. 2303 having carpet area of 650 sq. ft. in B wing. The total consideration paid for the said flat is Rs. 65,11,118. However his own contribution towards the consideration amount appears to be less than Rs. 2 lacs because in para 8 of his deposition he has stated that Rs. 63,61,118 have been paid by one Shri Narayandas Shankarlal Agarwal of Nagpur directly to the Adarsh CHS. We will consider the nature of this transaction while dealing with issue no.11. However for the purpose of the present issue, it can be concluded that Shri Rajput fulfills the requisite criteria of eligibility and therefore he has been rightly granted the membership of Adarsh CHS by the GOM. 72. Shri Shriniwas Dadasaheb Patil - Former M.P. 58.39. Shri Shriniwas Patil (AS.W. No.66) was a Member of the Parliament from October 1999 to April 2004 and thereafter from May 2004 to April 2009. He belongs to Nationalist Congress Party. He applied for membership of Adarsh CHS as per his application dt. 18-6-2004 Exh. MEM-620. In the said application he has stated his monthly income as Rs.52,500. His information on point No. 8 to 11 in the application is in the negative. A485 58.40. Shri Patil has been allotted flat No. 2403 having carpet area of 650 sq. ft. in B wing. He has stated that he made a total payment of Rs. 60,18,930 to the Adarsh CHS towards the price of the flat allotted to him. As regards the source of finance for buying the said flat, Shri Patil has filed a compilation of documents which includes details of payments made to the Adarsh CHS during the period from 22-5-2004 to 18-8-2010 Exh. MEM-623. Shri Patil has stated before the Commission that all the amounts mentioned in this statement were paid from his own account and he had taken a loan of Rs. 13 lacs from his HUF. He did not take any loan from any bank. The compilation filed by Shri Patil includes his bank statements, copies of the cheques issued to the Adarsh CHS and income tax returns. Taking into consideration the above mentioned facts, it is seen that Shri Patil is covered by clause (b) of para 4 of the GR dt. 25-5-2007 which inter alia includes Members of Parliament who would fall in A group as per the 5‘ Pay Commission. It must be noted that on the date of the application ie. 18 -2004 Shri Patil was a sitting member of the Lok Sabha. He is therefore eligible to be a member of the Adarsh CHS and he has been rightly approved as member of the said society by the GOM. Z. yhri Manil 58.41. Shri Manilal Thakur (AS.W. No. 56) is closely related to Shri R.C. Thakur who is the Chairman/Secretary of Adarsh CHS. ry487 Their wives are real sisters. Shri Manilal Thakur retired from Naval service in 1986. He applied for membership of Adarsh CHS as per his application dt. 8-8-2007 Exh, MEM-511. In the said application he has stated his occupation as private service/exserviceman and the monthly income as Rs. 19,000. His information on point nos. 8 to 11 in the application is in the negative. However, his evidence shows that he owns two flats at Vashi, His supporting affidavit dt 20-4-2010 Exh. MEM-515 shows that he gets monthly pension of Rs. 5000 and_ present salary of Rs. 14,000 as a Master. 58.42. Shri Manilal Thakur has been allotted flat No. 2503 having carpet area of 650 sq.ft. in B wing. It may be pointed out that this flat is adjoining the flat of Shri R.C. Thakur on the same floor. In his affidavit filed before the Commission he claims “I have invested a sum of Rs. 70,51,118 (Rupees Seventy Lakhs fifty one thousand one hundred eighteen only) after obtaining loan from M/s. San Finance Corporation, Nagpur”. It is necessary to point out that initially one Subhedar Ramnarayan A. Thakur had applied for membership of Adarsh CHS but by his declaration dt. 22-5-2010 Exh. MEM-512 he resigned from the membership or deemed membership of the Adarsh CHS in favour of Shri Manilal Thakur. The declaration states that a total amount of Rs. 51 lacs was paid by Subhedar Ramranayan Thakur towards the price ofa two bed room flat in the society. It further states “ Since I have resigned, I am entitled for the refund of this amount. However, as per my settlement of account with the said Shri Manilal Thakur, | do a488 permit and authorize to the Society to transfer the said amount of Rs, 51,00,000 (Rupees fifty one lacs only) in favour of the said Shri Manilal K:-Thakur’. t appears that accordingly the society forwarded the name of Shri Manilal Thakur to the Collector who by his order dt 5-5-2010 Exh. MEM-1082 approved the membership of four persons including Shri Manilal Thakur. Shri Manilal Thakur has stated in para 7 of his evidence that the settlement was for transfer of the amount standing to the credit of Shri Subhedar Ramnarayan Thakur to his account in the society. He further stated that he has not repaid the amount of Rs. 51 lacs to Shri Subhedar Ramnarayan Thakur. 58.43. The compilation of documents filed by Shri Manilal Thakur includes a copy of the letter dt. 10-7-2010 Exh. MEM-518 addressed by the San Finance Corporation to the Adarsh CHS in which it is stated that finance has been provided by the said company to Sbri Manilal Thakur for the purchase of his flat in the society. The letter further recites, "We wish to inform you that as per the terms of finance agreed between us, in the event of his inability to repay us the amount advanced by us, the flat allotted to him shall be transferred to us, as and when transferable, in lieu of the advanced amount unpaid”, In para 8 of his evidence Shri Manilal Thakur has stated that he is not aware of the contents of this letter. Whatever it may be, the transaction in question does not appear to be free from doubts and we will deal with the same while discussing the issue no.11. So far asthe conditions of eligibility are concerned, Shri Manilal Thakur seems to fulfill the all489 same and therefore there is no bar for approving his membership of the Adarsh CHS. = Pri 58.44. Shri Sampat Khidse (AS.W. No. 39) was at the relevant time working with an NGO called Dr. Venkatrao Dawale Medical Foundation, Ambajogai, District Beed. The Chairman of this institute was Shri Shivajirao Nilangekar Patil who was the Chief Minister of the State. Dr. Dawle's son Dr. Arun is the son-in-law of Shri Shivajirao Nilangekar Patil. According to Shri Khidse Dr. Arun Dawle told him that a flat was available for sale in Adarsh CHS. Shri Khidse has stated in para 4 of his evidence , "Except what I was earning from my service with the above mentioned foundation, I had no other source of income when I made my application for membership of Adarsh CHS. I now say that I had some income from my agricultural lands". Shri Khidse accordingly applied for membership of the Adarsh CHS by his application dt. nil Exh, MEM-342. Before the Commission he however stated that he made his application for membership in February 2004. In the said application he has stated his residential address as “ 36, Shriram Classics, Opp: Kothrud PMT Depot, Paud Road, Bhusari Colony, Kothrud, Pune 411 038.” He has stated his monthly income as Rs. 10,000. The application form filed by Shri Khidse is different from the forms filed by other members. Clause 9 of the said application reads, "Give particulars of membership in any other housing society in Maharashtra of a430 any member of the family”, The answer given to this query is in the negative. 58.45. Shri Khidse has been allotted flat No. 2603 having carpet area of 650 sq. ft. in B wing. Shri Khidse has not stated anything about the price paid by him for buying the said flat, However, his evidence before the Commission shows that he borrowed three unsecured loans for buying the said flat. According to him Dr. Arun Dawale gave him a loan of Rs. 3,25,000 while Shri Prithviraj Chavan, his own brother-in-law , who is an architect is said to have given him an interest free loan of Rs. 34,45,768 without any. security. According to Shri Khidse he has repaid these two loans. The third loan which he got was from Jai Maharashtra Consumer Pvt. Ltd. which is a company of Shri Kanhaiyalal Gidwani. The loan given by this company was Rs. 58,75,000. It was also an interest free loan without security. The evidence of Shri Khidse shows that he owns ancestral lands in Udgir Taluka and it is of the value of Rs. 45 lacs. In addition he also owns agricultural lands in Nanded district. He ownsa flat in Pune. However he has not sold any of his properties to repay the loan obtained from Jai Maharashtra Consumers Pvt.Ltd. In view of this fact the loan transaction entered into by Shri Khidse for buying the flat in Adarsh CHS appears to be shrouded with mystery. We shall consider this aspect while dealing with issue no.11. 58.46. However so far as the conditions of eligibility are concerned, Shri Khidse appears to have fulfilled the same.491, Therefore it will have to be held that his membership of the Adarsh CHS has been rightly approved by the GOM. ri Aj 58.47. Shri Amit Gidwani (AS.W. No.5) is the son of Shri Kanhaiyalal Gidwani who was the real promoter of the Adarsh CHS. Shri Amit Gidwani applied for membership of Adarsh CHS as per his application dt. 4-2-2003 Exh. MEM-28 & 28-A. In the said application he has stated his occupation as business and given his monthly income as Rs. 9,500. His information on point nos. 8 to 11 in the application is nil. In his evidence before the Commission he stated that upto the year 2004 he was doing his studies. He has further stated that he became a Director of M/s jai Maharashtra Consumers Pvt. Ltd. in 2004-05. He is also a Director of Apeksha Impex Pvt.Ltd. which is a company of his family. Presently he is working with Indiabulls Real Estate since 2008. 58.48. Shri Amit Gidwani has been allotted flat No. 2703 having carpet area of 650 sq, ft. in B wing. According to him he has paid Rs. 56 lacs upto 8-11-2010. He has filed a compilation of documents and on the front page thereof which is marked as Exh. MEM-31 he has stated against point no.7 as “No loan taken from bank. Loans/Advance taken from relatives and friends”. Before the Commission he stated that he has also taken loan from Jai Maharashtra Consumers Pvt. Ltd. and Apeksha Impex Pvt. Ltd ACS f492 But there is no documentation showing that he had taken loans from these two companies as well as from his relatives and friends. His evidence shows that he borrowed a loan of Rs. 27 lacs from Shri Jayant Shah. The evidence of Shri Amit Gidwani further shows that his company Jai Maharashtra Consumers Pvt.Ltd. and Apeksha Impex Pvt-Ltd. have given unsecured loans to $/Shri Amol Karbhari, Kiran Bhadange, Sampat Khidse, Shri Arun Dawale, Dhondiram Waghmare and Gajanand Koli. Any way Shri Amit Gidwani appears to be financially a sound person capable of buying a flat in the Adarsh CHS. He fulfills the requisite conditions of eligibility as at the time of making the application his monthly income was Rs.9,500 . It was subsequently that he became Directors of the companies stated above. Therefore there is no difficulty in holding Shri Amit Gidwani as eligible for membership of Adarsh CHS. Consequently it will have to be held that his membership is rightly approved by the GOM. al Chand 58.49. Gen. Nirmal Chander Vij (AS.W.No. 93) retired as Chief of the Army staff on 31-1-2005 and thereafter he was Vice Chairman, National Disaster Management Authority till 10-9-2010. According to him he came to know about the Adarsh CHS sometime in April 2006 and thereafter in May 2006 he applied for membership of Adarsh CHS by his application dt. 6-5-2006 Exh. MEM-907.In the said application he has stated his residential mh493 address of Delhi (Cantonment). His monthly income is given as Rs. 39,325. His information on point nos. 8 to 11 is in the negative. In para 5 of his evidence Gen. Vij has stated that after his retirement he has settled at Gurgaon. He further stated that the reason for buying a flat in Mumbai was that his only son was working in USA and that he wish that he should come to India. According to him Mumbai was one of the likely places where his son could have come. This was the reason for which he decided to buy a flat in Mumbai. 58.50. Gen. Vij has been allotted flat No. 2803 having carpet area of 650 sq. ft in B wing. He stated that when he applied for membership, he presumed that he would get a bigger flat but he added that he was happy with what was allotted to him. Gen Vij has made a total payment of Rs. 70,00,768 to the society towards the price of the said flat. He has filed a compilation of documents which include statement regarding payments made to the Adarsh CHS Exh. MEM-914. In the said statement he has also disclosed the source from which he raised the finance required for buying the said flat and it is out of sale proceeds of lands which were deposited in capital gain account. 58.51. Having regard to the above mentioned facts, it is found that Gen, Vij fulfills the requisite conditions of eligibility and was therefore eligible to become a member of the Adarsh CHS. His membership has been rightly approved by the GOM. It may a494 however be pointed out that Gen. Vij does not wish to continue his membership of he Adarsh CHS and he has written a letter dt. 30- 10-2010 Exh, MEM-916 to the society that he would like to return his flat with a request that it may be allotted to a war widow. However he has not received any official communication from the Collector that his resignation has been accepted 77._Major Gen. Varinder Singh Yadav (Retd.) 58.52. Major Gen. V.S. Yadav (AS.W. No, 15) was the GOC, M&G Area during the period from 21-7-2000 to 17-11-2002. At that time he came to know about the Adarsh CHS. Thereafter he applied for membership of Adarsh CHS as per his application Exh. MEM-126. It may be pointed out that the said application bears the date 20-4-1998. However, Major Gen. Yadav has clarified that the said date is not correct because he came to Mumbai in July 2000. In the said application he has given his monthly income as Rs. 33,000 and that of his family as nil. His information on point nos. 8 to 11 is in the negative. 58.53, Major Gen Yadav has been allotted flat No. 2903 having carpet areaof 650 sq.ft in B wing. He stated that so far he has paid Rs. 60,60,620 towards the price of the flat. He further stated that he had taken a loan of Rs. 31,23,945 from ICICI bank, Nagpur. He has filed a compilation of documents which include bank495, statements and income tax returns, It appears that he raised the remaining finance from his own sources. Having regard to his evidence and the documents produced by him, there is no doubt that Major Gen. Yadav is eligible to become a member of the Adarsh CHS and his membership has been rightly approved by the GOM. ‘78._Shri Sushil Chand Sharma ~ Ex POME Indian Navy. Z 58.54. Shri Sushil Chand Sharma (AS.W. No. 37) applied for membership of Adarsh CHS as per his application dt. 17-12-2004 Exh. MEM-328. At that time he was in the service of Indian Navy and his monthly salary was Rs. 13,300. His information on point Nos. 7 to 10 in the application is in the negative. Along with his application he made a payment of entrance fee of Rs. 50,000. Thereafter he was informed in May 2010 that his membership was approved. However, By his letter dt. 4-10-2010 Exh. MEM- 329 he informed the society that he was unable to pay the remaining amount to the society. He therefore surrendered his membership and received back the initial payment of Rs. 50,000. I short Shri S.C. Sharma is no longer a member of the Adarsh CHS and it is not necessary to consider whether he is eligible and whether his membership has been rightly approved by the GOM. re \ J496 B. WING - REMAINING 26 FLATS WITH AREA OF 650 SQ. FT. 79, Shri Balasaheb Yashwantrao Sawant -_Ex-serviceman, Indian Navy. 59. Shri Balasaheb Sawant ( AS.W. No.50) retired from Navy as Able Seaman in 1964 and thereafter for 15 years he was in reserve. He finally retired in the year 1979. According to him he learnt from Shri Ajit Singh Daphale, a Police Commissioner that a flat in Adarsh CHS in Mumbai was available. Accordingly, he decided to apply for the membership of the said society as he wanted to have a flat in Mumbai because his wife was suffering from cancer and she was being treated in Tata Memorial Hospital, Mumbai. His application is dt. 18-10-2006 Exh. MEM-446 wherein he has given his annual income as Rs. 1,85,600. His information on point nos. 8 to 11 is in the negative. 59.1. Shri Sawant has been allotted flat No. 504 having carpet area of 650 sq.ft. in B wing. He stated before the Commission that he has paid Rs. 64.80 lacs to the society towards the cost of the said flat. According to him the society made a further demand of Rs. 40 lacs which he has not paid and therefore the society has filed a proceeding under the Maharashtra Co-op. Societies Act for recovery of the same. As regards the finance raised by him for buying the said flat, his evidence shows that he borrowed Rs. 10 lacs from his wife Ms. Shobhana Sawant and Rs. 5,90,000 from his mother-in-law Smt. Snehalata Shinde. In addition he obtained a497 loan of Rs.. In addition he obtained a loan of Rs.34,40,000 from Bharati Sahakari Bank Ltd. Pune. Shri before the Commission that his wife owned a bungalow in Sagar Sawant further stated Housing Society, Pune which was old for Rs. 58 lacs. Shri Sawant has filed a compilation of documents which contains statement Exh, MEM-452 regarding the particulars and sources of the payments made to the Adarsh CHS. His compilation also includes bank statements, copies of income tax returns, certificate of income and _ extracts regarding his agricultural lands situated at village Suslad, Taluka Jath, Dist. Sangli. Taking all these evidence into consideration it is found that Shri Sawant fulfills the requisite conditions of eligibility and therefore he must be held to have been rightly granted membership of the Adarsh CHS by the GOM. 80. Capt. Praveen Kumar (Retd. 59.2. Capt. Praveen Kumar (AS.W. No. 53) who has been allotted flat No. 604 in B wing having carpet area of 650 sq. ft. was in the service of Navy and after 24 years of service, he took premature retirement in April 1996. He has stated that out of his 24 year’s service he has served in the State of Maharashtra for about 16 or 17 years. According to him Shri R.C. Thakur told him about the Adarsh CHS and asked him whether he would like to be a member of the said society. Accordingly Capt. Praveen Kumar submitted his application dt. 3-8-1997 Exh. MEM-473. In the said application he has stated his annual income as Rs. 96,000 and that the498 of his spouse as nil. He has mentioned that he belongs to a backward class. He has also produced a copy of the certificate issued by the Tahasildar of Buland in U.P. showing that he belongs to Jat community which is a backward caste. His information with regard to point nos. 9 to 11 is in the negative. 59,3. In para 5 of his evidence before the Commission, Capt. Praveen Kumar has stated, “From January 2003 to 2008 the only source of my income was my pension which was Rs. 12,270 p.m. 1 was in New Zealand from April 2003 and | still continue to be in New Zealand. In New Zealand I was working as a consultant till 2008-2009 and thereafter I have been writing books. 1 am a permanent resident of New Zealand. During the period from 2003 to 2008 my annual income was. 50,000 to 60,000 New Zealand dollars.” In para 13 of his evidence he stated, "! left India for New Zealand in April 2003. Since then I continued to stay in New Zealand. I have acquired citizenship of New Zealand in 2007." He further admitted that at no point of time he informed the Collector that he had shifted permanently to New Zealand. In his affidavit dt. 4-3-2011 which he filed before the Commission he is silent on this point and not disclosed that he has taken citizenship of New Zealand. We consider this failure on his part as_ serious and in our opinion it was absolutely necessary for him to have brought to the notice of the Collector, Mumbai that after applying for the membership of Adarsh CHS, he had permanently shifted to New Zealand. It is found that Capt. Praveen Kumar had made a conscious attempt to suppress the crucial fact of change of his aol ian499 citizenship. In his letter dt. 8-12-2008 Exh. MEM-484 addressed to the Collector, Mumbai he has falsely given his address as 20/B Sheetal Apartment, Ghatkopar (West). In para 13 of his evidence he admitted that the said letter was actually written by him from New Zealand but "I did not mention my New Zealand address in this letter because Shri Thakur had told me that I should maintain my address in Mumbai to make my case stronger". In short Capt. Praveen Kumar is found to have suppressed important and crucial fact about the change of his citizenship. Therefore in our opinion he cannot be held to be eligible for membership of Adarsh CHS. 8 .D. Sit 59.4. Brig. M.D. Singh (AS.W.No.52) applied for membership of Adarsh CHS as per his application dt.13% April. However the application does not bear the year. Before the Commission he has stated that he applied for membership on 13-4-1999. His supporting affidavit/undertaking Exh. MEM-463 is dt. 25-2-2003. In his application Brig. M.D.Singh has stated his monthly income as Rs. 18,000 and that of his spouse as nil. His information on points 8 to 11 is in the negative. Brig. M.D.Singh is still in the service of defence. In para 14 of his evidence he stated that he was interested in the scheme of Adarsh CHS because after retirement he was thinking of settling down in Mumbai. He stated that his two children were studying in Mumbai at that time. wf {500 59.5. Brig. M.D. Singh has been allotted flat No. 704 having carpet area of 650 sq. ft. in B wing. He has stated that so far he has paid Rs. 57 lacs for buying the said flat. As regards the sources out of which he made payment to the society, he stated that he took a loan of Rs. 2.50 lacs from Bank of Baroda and a loan of Rs. 2.50 lacs from his colleague Shri V.V. Vashishth. He further stated that he sold his flat at Gurgaon for Rs, 26.18 lacs to repay the loan borrowed from Shri Vashishth. Brig. M.D. Singh has filed a compilation of documents which includes a statement of payments and source of payments made to the Adarsh CHS Exh. MEM-470. He has also produced copies of the cheques/drafts issued in favour of the Adarsh CHS and his bank statements and income tax returns. In the cross examination made by Shri Dhiren shah, the Id. Advocate for MOD, Brig. M.D.Singh stated that there is no express permission letter given by his superior authority for becoming member of the Adarsh CHS. Taking into consideration the oral evidence and documents of Brig. M.D.Singh, we find that he fulfills the conditions of eligibility and therefore he has been rightly granted membership of Adarsh CHS by the GOM. iS Preside 59.6. Shri Rajesh Kumar Das (AS.W. No. 41) is a member of Indian Forest Service and he has been residing in the State of Maharashtra since 1985. He got information about the Adarsh society from Col. Rajiv Singh and accordingly by his application dt. 18-6-2004 Exh. MEM 361 he applied for membership of the 4501 Adarsh CHS. In his application he has stated his monthly income as Rs. 24,200. His information with regard to point nos. 8 to 11 in the application is in the negative. Before the Commission he stated that he is aware of the Service Rules regarding acquisition of immovable properties by a government servant. But before making the application for membership he did not obtain permission of his department. 59.7. Shir R.K.Das has been allotted flat No, 804 having carpet area of 650 sq. ft. in B wing. In para 7 of his evidence he has stated so far he has paid to the society a total amount of Rs. 37.55 lacs towards the purchase of the flat. He further stated that his brother Vikas Gaurav has filed an application for co-ownership in December 2006 and paid Rs. 20 lacs to the society directly. However, the application for co-ownership which was made to the society has not been accepted. Any way membership of the society has been granted to Shri R.K. Das only. As regards the source of payment, he has stated that he had taken a loan of 21 lacs from ICICI bank and a loan of Rs. 42 lacs from the Union Bank of India, Fort branch, Mumbai. Out of the amount of loan borrowed from the Union Bank of India, he claims to have paid of the loan of ICICI bank. Shri Das has filed a compilation of documents which includes a statement of accounts Exh. MEM- 366 maintained by the society as per which the amount due from him to the society appears to be Rs. 12,19,324.57. Shri Das has stated that he has not been given possession of the flat. Taking into consideration the oral evidence as well as the documents on wR502 record, it is found that Shri R.K.Das is eligible to become a member of the Adarsh CHS and his membership has been rightly approved by the GOM. 83. Shri Suresh Gulabrao Atram - ite service 59.8. Shri S.G. Atram (AS.W. No.73) applied for membership of Adarsh CHS as per his application dt. 7-10-2001 Exh. MEM-681 In the said application he has given his monthly income as Rs. 9000 p.m. He belongs to Gond community which is recognized as a Scheduled Caste. His information with regard to point nos. 8 to 11 in the application is in the negative. Before the Commission Shri Atram has stated thati n 2003 he was working as supervisor in M/s. Khaitan Steel Company at Nagpur as part timer and he was also working with SMS Infrastructure Ltd. Nagpur as a peon. According to him he used to get monthly salary of Rs. 4500 from each of these two companies. He has produced a compilation of documents which includes a salary certificate dt. 30-4-2008 Exh. MEM-679 issued by M/s. M.D. Khaitan which states that his monthly salary as godown keeper is Rs. 13,500. However before the Commission he stated that the figure of salary mentioned in the certificate is not correct. He further stated that Shri M.D. Khaitan is the sole proprietor of Khaitan Stee! Corporation while Shri Shaktikumar Sancheti is the Director of SMS Infrastructure Ltd. 59.9. According to him, Shri Sudhakar Madke , also a member of the Adarsh CHS and driver of Shir Sancheti, gave him information acl \503 about the Adarsh CHS and that Shri R.C. Thakur gave him the application form. Shri Atram has stated that he neither inquired with Shri Thakur nor did he tell him about the location of the site where the building of the Adarsh would be coming up. In para 13 of his evidence he stated that it was his desire to reside permanently in Nagpur only where he has been residing for the last 32 years. Shri Atram has been allotted flat No. 904 having carpet area of 650 sqft. in B wing. He has stated that the total amount paid towards the price of the said flat is Rs. 59,50,000. As regards the source of payment, Shri Atram stated that he obtained a loan of Rs. 10,53,000 from San Finance Corporation. Shri Shaktikumar Sancheti gave him a loan of Rs. 20,000 on his oral request. Shri Atram further stated, “Whatever additional amounts are paid on my behalf to the society are paid by San Finance Corporation. The total amount paid to the society is Rs. 59,50,000. I do not have any evidence to show that the additional amount of Rs. 39,50,000 has been paid by me. In my income tax return I have not shown the loan taken from San Finance Corporation’ 59.10. Shri Atram may be financially incapable of buying a flat in a posh locality of Cuffe Parade. However so far as the conditions of eligibility are concerned, he appears to have fulfilled the same and there is no bar for his becoming a member of the of the Adarsh CHS. Hence it will have to be held that his membership has been rightly approved by the GOM ko504 84, Shri Rajesh Shantilal Bora 59.11. Shir Rajesh S. Bora (AS.W. No. 89) applied for membership of Adarsh CHS as per his application dt. nil Exh. MEM-867. In that application he has given his monthly income as Rs. 11,000. His information on point nos. 8 to 11 in the application is negative. The supporting affidavit/undertaking Exh. MEM-866 filed by him bears the date 12-5-2003. Shri Bora stated before the Commission that Shri R.C. Thakur was his neighbour in Nagpur and that Shri Thakur told him about the availability of a flat in Adarsh CHS. Shri Bora has been allotted flat No. 1004 having carpet area of 650 sq. ft. in B wing. In para 8 of his evidence before the Commission he stated that he had written a letter to the society requesting allotment of a flat which would be adjoining the flat of Shri Sancheti. He further stated that Shri Paramveer Sancheti is his maternal nephew. It may be pointed out that Shri Paramveer Sancheti has been allotted flat No. 1003. 59.12. As regards the source of payment for buying the said flat Shri Bora stated that he obtained the entire amount of Rs. 60 lacs from San Finance by way of loan. He further stated “There is no writing to show that the said amount was taken as a loan. I have not mortgaged my flat to San Finance Corporation. I obtained the loan in 2003 or 2004. The rate of interest has not till date been decided. I have not made any repayment of the loan amount. The San Finance Corporation has not made any demand in writing from o

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