JUDGMENT : S.V. GANGAPURWALA, J. 1. Rule. Rule made returnable forthwith. By consent of the parties, taken up for final disposal. 2. All these Writ Petitions are based on similar set of facts and assail the same communication dated 2nd December, 2021 issued by the Collector, Mumbai Suburban District thereby instructing the Municipal Corporation of Greater Mumbai not to grant building permissions in respect of lands granted on B-1 tenure under Form HH under the provisions of Bombay Land Revenue Code, 1879 and the Bombay Land Revenue Rules, 1921, unless confirmation has been received by the Collector, Mumbai Suburban District that the applicant for such permission has deposited conversion premium for converting landholding from B-1 tenure to C tenure as per the Government Notification dated 3rd August, 2019. 3. The vast pieces of government land at village Chembur were converted into SS-III by the respondent no. 1 pursuant to which, individual plots were carved out as part of the said scheme and granted to the purchasers/grantees on certain terms and conditions. One M/s. F.E. Dinshaw was entitled to various plots of land. Dinshaw's rights over the said property came to be assigned in favour of Provident Investment Company of Bombay under a Deed of Assignment dated 28th February, 1935. Mutation Entry was effectuated in the name of Provident Investment Company under kabjedar column in the Revenue record. Respondent No. 1 with a view to settle the land revenue and preservation of proprietary and other rights, pursuant to requisite survey of the said property as per the provisions of the Bombay Land Revenue Code, 1879, executed an agreement under the Form HH and Rule 43 of the Bombay Land Revenue Rules 1921, dated 13th January, 1940, with Provident Investment Company, Bombay. On 18th July, 1940, permission was given to the Provident Investment Company to occupy the said property in accordance with the terms of the agreement in Form HH i.e. 13th July, 1940. On 4th September, 1952, under the Deed of Conveyance executed between Provident Investment Company and one Sitaram Joshi, the said Joshi had acquired various plots. The said acquisition was recorded by the revenue authority by way of mutation entry no. 807 dated 8th December, 1953. Writ Property changed hands. On 4th September, 1952, under the Deed of Conveyance executed between Provident Investment Company and one Sitaram Joshi, the said Joshi had acquired various plots. The said acquisition was recorded by the revenue authority by way of mutation entry no. 807 dated 8th December, 1953. Writ Property changed hands. The same was transferred in the name of Manoramabai Godbole by Joshi and eventually, Manoramabai Godbole under Deed of Conveyance dated 15th October, 1956 sold it to one Sumatibai Bhagwantiprasad, who erected a building on the writ property. Petitioner Nos. 1 to 4 claim to be the legal heirs of deceased Bhagvanti Prasad. It appears that petitioner Nos. 1 to 4 executed a registered development agreement on 30th June, 2005 with the petitioner no. 5 for redevelopment of the writ property. They also executed power of attorney in favour of petitioner no. 5. In the year 2008 building was declared as dilapidated. 4. On or about 19th August, 2021, the respondent no. 5 granted IOD under section 346 of the Mumbai Municipal Corporation Act, 1888 on the terms and conditions enumerated therein. Amended plans for approval were submitted on 25th December, 2021. On 13th January, 2022, the respondent no. 2 issued amended plan approval letter and insisted upon the conditions of obtaining an NOC from the Collector. The said condition is imposed on the basis of communication dated 2nd December, 2021 by respondent no. 2 thereby directing respondent no. 5, not to grant building permissions in respect of lands granted on B-1 tenure and Form HH under the provisions of Bombay Land Revenue Code, 1879 and Bombay Land Revenue Rules, 1921, unless confirmation has been received to the respondent no. 2 that the applicant of building permission has deposited conversion premium for converting the landholding from B-1 tenure to C tenure as per the Government Notification dated 3rd August, 2019. 5. The learned counsel for the petitioners strenuously contends that form HH nowhere prescribes a condition of a prior permission from the Collector for entering into the transaction and/or developing the property. The learned counsel submits that Rule 43(2) of the Bombay Land Revenue Rules, 1921 provides that in case of grants, in which an agreement in Form H or Form HH is to be taken, the Collector may annex such additional conditions to, or omit or vary such of the conditions in the agreement as it thinks fit. The learned counsel submits that Rule 43(2) of the Bombay Land Revenue Rules, 1921 provides that in case of grants, in which an agreement in Form H or Form HH is to be taken, the Collector may annex such additional conditions to, or omit or vary such of the conditions in the agreement as it thinks fit. In the present case, the Collector has not added any additional condition or incorporated in Form HH at the time when Form HH was executed in the year 1940, neither the Form 1 has been executed in the present case. No additional conditions are imposed. In absence of such conditions having been imposed at the inception, the insistence by the respondent no. 3 and respondent no. 5 of obtaining NOC from respondent no. 2 as a precondition to grant commencement certificate by incorporating the impugned condition in the amended plan approval letter, is wholly without jurisdiction and is unjustified. 6. To buttress his submission, the learned counsel relies on the judgment of the Division Bench of this court in the case of Hiren Bharani vs. State of Maharashtra and Others in Writ Petition No. 3119 of 2003. The learned counsel submits that obtaining NOC from the Collector cannot be insisted upon as a pre-condition to grant permission for proposed development. Such insistence is without authority of law. The learned counsel relies on following judgments: 1. Hiren Bharani and Others vs. State of Maharashtra and Others in Writ Petition No. 3119 of 2003, dated 5th October, 2006 2. M/s. Sundarsons and Others vs. State of Maharashtra and Others in Writ Petition No. 2611 of 2005, dated 5th October, 2006 3. M/s. Sundarsons and Others vs. State of Maharashtra and Others in Civil Appeal No. 3276 of 2009, dated 23rd November, 2017 4. Shri Chandravardhan D. Gohil vs. State of Maharashtra and Others in Writ Petition No. 1873 of 2015, dated 14th October, 2017 5. Dhiren Co-operative Housing Society Limited and Others vs. State of Maharashtra and Others in Writ Petition No. 1491 of 2018, dated 14th August, 2018 7. It is further submitted that the terms and conditions in Form HH would have primacy and in the absence of specific condition restraining transfer and/or development, the insistence of compliance of such condition at a later stage would be without authority of law. 8. It is further submitted that the terms and conditions in Form HH would have primacy and in the absence of specific condition restraining transfer and/or development, the insistence of compliance of such condition at a later stage would be without authority of law. 8. The learned counsel to substantiate his contention relies on the following judgments: 1. Sudhir Vasu Shetty vs. City Survey Officer and Another in Writ Petition (L) No. 7184 of 2020, dated 21st December, 2021 2. Basant Vihar Cooperative Housing Society Limited vs. State of Maharashtra in Writ Petition (L) No. 7537 of 2021, dated 14th February, 2022 9. The learned A.G.P. strenuously contends that the Petitioners are governed by the terms and conditions of the HH agreement and Schedule II annexed thereto. The Provident Investment Company, Bombay was allotted plot No. 70 to the extent of 11,923.07 sq.mtrs. at Chembur, Greater Mumbai under HH Agreement as occupants. The Petitioners are occupants of Plot No. 131 admeasuring 653.60 sq.mtrs from Provident Investment Company, Bombay. Once the Provident Investment Company, Bombay, has accepted the terms and conditions mentioned in the HH Agreement and Schedule II, and the same has attained finality, those terms and conditions are binding upon the Petitioners and the Petitioners cannot resile from the same. The Petitioners are bound by the said terms and conditions. The Petitioners have not challenged the terms and conditions mentioned in the HH agreement and Schedule II nor they can challenge it. As per the terms and conditions, the Petitioners are entitled to develop only 1/4th area from 653.60 sq. mtrs. as per condition no. 3 of HH agreement and recital at serial no. 1 of Schedule II. As the Petitioners are intending to develop the entire 653.60 sq. mtrs, it would amount to illegal construction and the Petitioners would be in breach of the terms and conditions of the HH agreement. If the Petitioners want to utilise the entire land, the Petitioners have to make an application to the Collector Mumbai Suburban District for conversion of land from “B1” to “C” to get the benefits of the Government policy. The learned A.G.P. submits that as per the grant of the terms and conditions of the HH agreement and Schedule II, no building shall be erected on the plot for which plans have not been sanctioned by the Collector. The learned A.G.P. submits that as per the grant of the terms and conditions of the HH agreement and Schedule II, no building shall be erected on the plot for which plans have not been sanctioned by the Collector. The learned A.G.P. contends that the judgment relied upon by the Petitioners in the case of Hiren Bharani (Supra) was on the premise that no policy exists seeking permission of the Collector. Now the State Government has come out with the policy by way of executive instruction dated 03.08.2019. Under the said G.R. dated 03.08.2019, guidelines are laid down for carrying out the development activity by the occupants bound by the HH agreement and Schedule II thereto. The special condition 7(g) in the HH agreement shall be read with recital Serial No. 1 of Schedule II. If the Petitioners intend to develop the entire area allotted to it, then the Petitioners have to make an application to the office of Respondent no. 2, for relaxing the special condition of HH Agreement and Schedule II as per the policy enshrined in the G.R. dated 03.08.2019. Upon the application being made, the Collector would have processed the application of Petitioner no. 1 and call for the report, particularly, whether Petitioner Nos. 1 to 4 have violated the terms and conditions of the HH Agreement and Schedule II and thereafter, pass appropriate orders. The Petitioners also require to pay additional charges as per the said G.R. for constructing upon an area more than prescribed in the HH agreement. 10. The learned A.G.P. further submits that the policy of the Government cannot be judicially scrutinised. The Court can set aside the policy decision only if the said policy decision is arbitrary. In the present case, the policy decision does not suffer from vice of arbitrariness and the same is to enable the smooth functioning and due observance to the terms and conditions of HH Agreement. The learned A.G.P. relies upon the judgment of the Apex Court in the case of State of Punjab and Others vs. Ram Lubhaya Bagga and Others, (1998) 4 SCC 117 and another judgment of the Apex Court in the case of Peerless General Finance and Investment Co. Limited and Another vs. Reserve Bank of India, (1992) 2 SCC 343 . The Policy of the Government is not mala-fide. The same is not unfair. Limited and Another vs. Reserve Bank of India, (1992) 2 SCC 343 . The Policy of the Government is not mala-fide. The same is not unfair. In view of that, the said policy may not be interfered with. Reliance is placed on the judgment of the Apex Court in the case of Ugar Sugar Works Ltd. vs. Delhi Administration and Others, (2001) 3 SCC 635 and the following judgments: (a) Parisons Agrotech Private Limited and Another vs. Union of India and Others, (2015) 9 SCC 657 (b) Balco Employees' Union (Regd.) vs. Union of India and Others, (2002) 2 SCC 333 (c) Federation of Railway Officers Association and Others vs. Union of India, (2003) 4 SCC 289 (d) D.N. Jeevaraj vs. Chief Secretary, Government of Karnataka and Others, (2016) 2 SCC 653 11. The learned A.G.P. further contends that the Petitioners have not challenged G.R. dated 03.08.2019. As the said G.R. is not challenged, the Petitioners are bound by the said G.R. and as per the said G.R., notice/application to the Collector for the development activity of the Petitioner is mandatory to be made. 12. We have considered the submissions canvassed by the respective counsel. 13. The fact viz. the writ land in question is governed by the HH Form and Schedule II annexed thereto is not disputed. HH Agreement lays down certain terms and conditions of the manner in which the writ land can be developed. HH Form in the present case as placed on record, does not limit the exercise of the right of the occupants to transfer the land. Neither the terms in Form HH or Schedule II attached thereto, prescribe such a prohibitory condition. However, there are certain restrictions with regard to the extent of the construction to be carried out on the land. The said restriction, it appears, is placed in Schedule II. Some part of the land is to be left open to the sky i.e. to the extent of 3 quarters of the land. No building shall be erected in the land with more than a ground floor and one upper storey and such other conditions. However, there is no restriction to transfer the land. 14. The Municipal Corporation is planning authority. It regulates the construction activity. Before entering into any construction/development activity, the permission of the planning authority is necessary. No building shall be erected in the land with more than a ground floor and one upper storey and such other conditions. However, there is no restriction to transfer the land. 14. The Municipal Corporation is planning authority. It regulates the construction activity. Before entering into any construction/development activity, the permission of the planning authority is necessary. The Petitioners, it appears, have applied for the necessary construction permission from the planning authority. The planning authority is not in a position to issue permission, as the Respondent no. 2 issued the communication dated 02.12.2021. Under the said communication, it is clarified that if the applicant is ready to keep 1/3rd of the area open and requires construction permission only for residential purpose then the permission be granted. However, if the Applicant desires to construct more than the area permitted under HH Agreement and Schedule II, then as per the G.R. dated 03.08.2019, the Applicant should deposit the necessary amount as per the G.R. dated 03.08.2019 and if he has deposited the amount as per G.R. dated 03.08.2019 then only construction permission shall be granted and/or the occupancy certificate. In the present case, no doubt, the Petitioners intend to construct the area more than what was permitted in the Schedule II and HH Agreement. Under the G.R. dated 03.08.2019, in fact, the Government has come out with a policy that if the applicant pays the amount to the State for constructing more area than the permitted under Schedule II and HH Agreement, then the Petitioners may develop the property. For constructing more area than permitted in HH Agreement and Schedule II, the permission of State Government is not mandatory. The said G.R. dated 03/08/2019 is issued from fiscal point of view. 15. In the case of Hiren Bharani (Supra), the Division Bench of this court observed that power does not exist in the State to direct the Municipal Commissioner not to grant development permission without obtaining NOC from the Collector. The Circular directing NOC should be first obtained from the concerned Collector, is without authority of law. The said view was further followed by the coordinate Division Bench of this Court in the case of M/s. Sundarsons and Others vs. State of Maharashtra dated 05.10.2006 and other judgments. 16. The Respondents, even as per its G.R. dated 03.08.2019 would be concerned with the collection of revenue. The said view was further followed by the coordinate Division Bench of this Court in the case of M/s. Sundarsons and Others vs. State of Maharashtra dated 05.10.2006 and other judgments. 16. The Respondents, even as per its G.R. dated 03.08.2019 would be concerned with the collection of revenue. The right of the Respondent State to collect the revenue as per G.R. dated 03/08/2019 and right of petitioners to develop the property can be balanced. Petitioners have already applied for development. The Municipal Corporation can forward the application of the Petitioners for development to the office of the Collector and the Collector may take decision upon it and may issue notice to the Petitioners for payment of the amount as it may be legitimately entitled to recover. However, for the said purpose, it would not be necessary for the planning authority to stay its hands off from processing the application of the Petitioners for construction permission, as per the Development Control Rules and Regulations. 17. In the light of the above, we pass the following order: (a) The Municipal Corporation planning authority may process the proposal of the Petitioners for commencement certificate/construction permission in accordance with law dehors the impugned communication issued by Respondent no. 2. (b) The Municipal Corporation, within two weeks, shall forward the application for construction permission received from the Petitioners to the Collector. (c) The Collector may, in terms of G.R. dated 03.08.2019 take decision with regard to the amount legitimately due and payable by the Petitioners, if any. However, for the same, the process of issuing construction permission need not be stalled. (d) Writ with aforesaid observations and directions.