An interesting question was asked on twitter on collectors land. The question was whether it is legal to ask for transfer charges by Collector Mumbai for issuing NOC of flats in Society standing on land belonging to Collector?
In Mumbai Collector owns nearly 1282 properties on which development is permitted and sanctioned on Lease. As per latest data available about 517 properties Lease has been expired and in Mumbai lease of about 149 properties have been expired.
Government has given this land on meager yearly lease rent. So Government prescribed a policy for increase in ground rent on 5th October, 1999. Which was challenged and directions were given to give hearing to those whose lease has been expired and also give opportunity to convert occupancy to Class II occupants on one time payments as specified in the Circular. The lease of land for purpose other than Agriculture is granted under provisions inter-alia of the Maharashtra Land Revenue Code, 1966 (“ Said Code” ) and the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971 ( Said “ Rules”) .
The Said Rule B-26 -27 empowers Collector to Grant Land for Residential use. It reads as under
B. Grant of land for residential use
26. Disposal of building sites :- (1) Except as otherwise provided in these rules, the occupancy rights in building sites shall be disposed of by the Collector under Section 20 read with Section 31 by publication to the highest bidder, unless for reasons to be recorded in writing, the Collector thinks that in any particular case, there is reason for granting the land without auction. (2) Where a building site is to be disposed of without auction under sub-rule(1), the Collector shall dispose of the site in occupancy right under Section 20 read with Section 31 on inalienable tenure [If the occupancy price determined under sub-rule(3) does not exceed Rs. 25,000 and with sanction of the Commissioner, if the occupancy price exceeds Rs. 25,000 but does not exceeds Rs. 1,00,000 and with the sanction of the State Government, in other cases.] (3) The Collector shall determine the occupancy price of the site, regard being had to the following factors that is to say, (a) the sale prices of similar lands in the locality; (b) the situation of the building site; (c) the availability of, and demand for, similar lands; (d) factors which are taken into account in determining the value of land under the Land Acquisition Act, 1894.
27. Grant of land housing schemes :-Building plots may be granted by the State Government for various housing schemes undertaken by any housing board, local authority or co-operative housing society constituted under any law for the time being in force, in occupancy rights under Section 40 on inalienable and impartible tenure on payment of such concessional occupancy price as the State Government may, from time to time fix, regard being had to the nature of the scheme, and in the case of a co-operative housing society, to the income 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 on one lakh or more, may be granted by the Collector under Section 20 read with Section 31 to any co-operative housing society if the occupancy price of such land determined under sub-rule(3) of Rule 26 does not exceed Rs. 2 [1,00,000], and with the sanction of the Commissioner if the occupancy price so determined, exceeds Rs. 1 [1,00,000] but does not exceeds Rs. 3 [2,50,000].
The Occupancy is transferable , subject to the provisions contained in section 72 and to any conditions lawfully annexed to the tenure, and save as otherwise provided by law, be deemed an heritable and transferable property as per Section 36 of the Said Code.
Government Lands and Foreshore
294. All unoccupied lands within the City of Bombay, and every unoccupied portion of the foreshore, below high water mark, shall be deemed, and are hereby declared to be, the property of the State Government, subject always to the rights of way and all other rights of the public legally subsisting. For the avoidance of doubt, it is hereby expressly declared that nothing in this section shall be taken to affect the right of the State Government to unoccupied lands declared to be the property of the State Government by any earlier law.
295. It shall be lawful for the Collector, with the sanction of the State Government, to dispose of any lands or foreshore vested in the State Government in such manner and subject to such conditions as he may deem fit ; and in any such case, the land or foreshore so disposed of shall be held only in the manner, for the period and subject to the conditions so prescribed.
Transfer of lands, etc.
296. (1) Whenever the title to any land, house or other immovable property, subject to the payment of land-revenue to the State Government, is transferred or assigned, the person transferring or assigning the same and the person to whom the same is transferred or assigned, shall respectively cause notice of such transfer or assignment to be given to the Collector. (2) Such notice shall be given within twenty days after execution of the instrument of transfer or assignment, or after its registration if it be registered, or after the transfer or assignment is effected, if no instrument is executed. (3) In the event of the death of any person in whose name the title to any property is entered in the records of the Collector, the person to whom such title is transferred as heir or otherwise shall cause notice thereof to be given to the Collector within one year from such death.
297. (1) The notice shall be in the form either of Schedule H or Schedule I as the case may be, and shall state clearly all the particulars required by the said form.
(2) It shall be accompanied, whenever the Collector shall deem fit so to require, by the instrument of transfer if any, by a plan to be furnished of the land which is the subject of the transfer or assignment, drawn and attested by such officer as the Collector may direct and by a certificate that public notice has been given of the transfer or assignment by beat of bataki.
Question arise What is Premium?
Answer is given in Section 2 (19) which defines term ” land revenue” means all sums and payments, in money received or legally claimable by or on behalf of the State Government from any person on account of any land or interest in or right exercisable over land by or vested in him, under whatever designation such sum may be payable and any cess or rate authorised by the State Government under the provisions of any law for the time being in force; and includes premium, rent, lease money, quit rent, judi payable by a inamdar or any other payment provided under any Act, rule, contract or deed on account of any land;
Who are Occupants?
Its answered in Section 29.Of the Grant of land Classes of persons holding land. (1)There shall be under this Code the following classes of persons holding land from the State, that is to say (a)Occupants – Class I, (b)Occupants – Class II, (c)Government lessees.
(2)Occupants – Class I shall consist of persons who (a)hold unalienated land in perpetuity and without any restrictions on the right to transfer ; (b)immediately before the commencement of this Code hold land in full occupancy or Bhumiswami rights without any restrictions on the right to transfer in accordance with the provisions of any law relating to land revenue in force in any part of the State immediately before such commencement; and (c)if they hold land in Bhumidhari rights in any local area in Vidarbha which has not been excepted under section 150 of the Madhya Pradesh Land Revenue Code, 1954 and are permitted hereafter subject to rules made by the State Government in this behalf, on payment of a premium (not exceeding three times the assessment payable in respect of such land) to be included in Occupants- Class I.
(3)Occupants- Class II shall consist of persons who, (a)hold unalienated land in perpetuity subject to restrictions on the right to transfer ; (b)immediately before the commencement of this Code hold (i)land in Vidarbha in Bhumiswami rights with restrictions on the right to transfer or in Bhumidhari rights under the Madhya Pradesh Land Revenue Code, 1954; and (ii)Elsewhere hold land in occupancy rights with restrictions on the right to transfer under any other law relating to land revenue; and (c)before the commencement of this Code have been granted rights in unalienated land under leases which entitle them to hold the land in perpetuity, or for a period not less than fifty years with option to renew on fixed rent, under any law relating to land revenue and in force before the commencement of this Code; and all provisions of this Code relating to the rights, liabilities and responsibilities of Occupants- Class II shall apply to them as if they were Occupants-Class II under this Code.
The question raised on twitter had also come up before Bombay High Court in matter of Aspi Chinoy Vs State in which Senior Counsel of Bombay High Court challenge demand by collector of transfer charges on Collectors Land, in which Division Bench held that State Government has no power to demand Transfer Charges
The said order was challenged by State and Supreme Court has given Stay on Bombay High Court Division Bench Order and matter is pending for final disposal.
Thereafter State Government has issued yet another guidelines and Circular and fixed transfer charges of Collectors land which is as under :
Now those Societies who want to avoid payment of hefty transfer charges may choose to convert their holding on payment of premium as stipulated in the above circular. In the mean time the issue of entitlement power and authority of Collector to charge per square feet Transfer Charges is sub-judice and flat purchasers have no option but to pay. Whether all will get refund of these payments if Supreme Court finally decides answer is in negative because it is Right in Persona and not Right in rem . Hence each affected party has to challenge or collectively can file Writ challenging such levy of premium.