Pendse, J. - (1.)By this petition filed under Article 226 of the Constitution of India, the petitioner is seeking a writ directing respondents Nos. 1 and 2 to cancel condition (b) in the notice dated May 29, 1978, whereby the demand is made for the payment of sum of Rs. 33,206/- being 50 per cent of the unearned Increment.
(2.)The few facts which have led to the filing of this petition are as follows; The petitioner was member of the respondent No, 3 Society. The Society requested the Government to allot a plot admeasuring 17 Acres and 50 sq. yards in the Town Planning Scheme No. VI at Santacruz for construction of houses for its members. In pursuance of the request, the Government of Maharashtra issued a Sanad in favour of the Society on December 24, 1971 in Form HH/1 as provided under Rule 43 of the Land Revenue Code Rules 1921. The Sanad inter alia provided that the plot was to be used for building purpose and structures on the land are to be used only for residenial purpose. The Grant was subject to the special conditions mentioned in the Second Schedule to the said Sanad. Condition No. 2 inter alia provided that the Society or any member shall not sell or transfer any plot or block in the flat to any person other than a member of the Society without obtaining previous written approval of the Additional Collector, Bombay Suburban District. The condition also entitled the Additional Collector to exercise option to take the plot or the flat and the exercise of the option has to be exercised within 30 days of the receipt of the intimation of the transfer.
(3.)The petitioner is the owner-member of Flat No. 19 in the construction raised by the Society. On February 3, 1978, the petitioner entered into an agreement of sale in respect of the flat in favour of Mr. and Mrs. Fernandes. On February 10, 1978 the petitioner informed the Additional Collector about the transaction and sought his approval for the transfer. The letter was duly received by respondent No. 2 on February 13, 1978. The petitioner also informed the Society about the proposed transfer and the Society in its turn informed respondent No. 2 seeking approval for the said transfer. In answer to the request made by the Society, the Society was informed by letter dated May, 29, 1978 from the Revenue and Forest Department, Mantralaya, Bombay, that the membership of Fernandes and proposed transfer are provisionally agreed subject to three conditions and the Society was called upon to comply with the said three coadltions. The condition (b) reads as under ;
"The Law Co-op. Housing Society Limited pays to Government an amount of Rs. 33,206/- being 50% of the unearned increment in the transfer of flat in question. The amount may be debited to the budget head "029-1 and Revenue (h) other receipts-(v) other items'."
The petitioner has filed the present petition to challenge the imposition of this condition before grant of approval for the purpose of transfer.