habeeb 1 220.wp.2059.07.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2059 OF 2007
The Anjuman - I- Islam Badruddin ]
Tyabji Marg, Off 92, D. N. Road ]
Mumbai - 400 001. ] .. Petitioner
V/s
1. The Municipal Commissioner, ]
Municipal Corporation of Greater Mumbai ]
D. N. Road, Opp. C.S.T. Mumbai. 400 001. ]
2. State of Maharashtra ]
Through Government ]
Pleader High Court (O.S) Bombay. ] .. Respondents
...
Mr. Arvind G. Kothari for the Petitioner.
Ms. Vandana Mahadik, for the Respondent No.1.
Mr. Sukanta Karmakar, AGP for the Respondent No.2.
CORAM : A. S. OKA &
SMT. VIBHA KANKANWADI, JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED: 27 JUNE 2017 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 31st August 2017 ORAL JUDGMENT: (PER SMT. VIBHA KANKANWADI,J) 1] The Petitioner is a registered Society under the Societies' Registration Act, 1860. The Petitioner is also a Public Trust registered under the Maharashtra Public Trusts Act, 1950. The Petitioner runs ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 2 220.wp.2059.07.doc various High Schools / Junior Colleges, Polytechnic, Engineering College, D. Ed College, B. Ed college, etc. By invoking the Writ Jurisdiction of this Court under Article 226 of the Constitution of India, the Petitioner has prayed for quashing and setting aside the order dated 23rd July 2007 with direction to 1st Respondent to refund the excess premium of Rs.20,02,026/- to the Petitioner with interest @ 12% per annum from the date of the Notification date 14th December 1998. 2] The factual matrix leading to the petition is that in the year 1995, the Petitioner submitted a proposal for additions / alterations to the existing ground + 2 upper floor building of their school at Kurla under Section 342 of the Mumbai Municipal Corporation Act, 1888. The Petitioner had consumed the normal permissible area and their architect had requested for grant of additional F.S.I to the tune of 100% in accordance with Regulation No. 33(2) of Development Control Rules (DCR) 1991. After obtaining necessary orders from the 1 st Respondent for the grant of additional F.S.I., plans for part Ground floor + 3 rd to 5th floor in Horizontal as well as Vertical extension to the Existing School Building were got approved. The I.O.D. was issued in 1995. A condition that premium towards the additional F.S.I. should be paid, was not incorporated in the I.O.D. Thereafter, in the year 1997, the plans were amended. The payment of the premium on the additional F.S.I. was ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 3 220.wp.2059.07.doc insisted by the 1st Respondent. Accordingly, a demand note was sent to the architect appointed by the Petitioner. Amount of Rs.20,18,520/- was demanded towards additional F.S.I. which was required to be paid before issuance of completion certificate up to 2nd Floor. While working out premium for additional FSI in the year 1997, the land rate for the year 1996 was adopted. Subsequently, an additional premium of Rs.4,03,071/- was recovered from the Petitioner based on the land rate of the year 1997.
3] The Petitioner has further contended that the Development Control Regulations for Greater Mumbai, 1991 were sanctioned by the Government under Section 31(1) of Maharashtra Regional and Town Planning Act, 1966 (for short "MRTP"Act) vide Urban Development Department Notification No. DCR 1090 / RDP / UD /X-11 dated 20 th February 1991 which came into force with effect from 25th March 1991. Regulation No. 33(2) of the Regulations empowered the Municipal Commissioner, to grant additional 100% F.S.I. over and above the permissible F.S.I. in respect of buildings of educational institutions. However, it was subject to the payment of such premium as may be decided by the Government. As per the said Notification, concessions in premium for additional F.S.I. to the educational buildings were given in accordance with the Notification issued by the Government dated 19 th of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 4 220.wp.2059.07.doc January 2000. The premium actually payable was based upon the valuation done by the Town Planning and Valuation Department. As per the case of the Petitioner in view of the said Notification, there is excess payment of premium for additional F.S.I. amounting to Rs.20,02,026/-. Petitioner addressed letters dated 4th February 2005 and 3rd June 2005. Thereafter, Advocates notice dated 12 th August 2006 was given to the 1 st Respondent in which facts were briefly stated and refund was prayed for. The Officers of the 1st Respondent have given different interpretation to the Notification dated 14th December, 1998 and thereby illegally and arbitrarily withheld the excess amount. Hence present petition has been filed.
4] Affidavit-in-reply has been filed by one R.S Kuknur, Assistant Engineer with 1st Respondent. He has submitted that a proposal was received from the Petitioner for additions and alterations to the existing building of the Petitioner at Kurla. It was approved in lieu of additional F.S.I. in the year 1995. Premium of Rs.24,22,230/- towards the additional F.S.I. was recovered on 22 nd April 1997 as per the then prevailing policy. Subsequently, the Government issued the Notification dated 14th December, 1998 regarding the payment of premium towards additional F.S.I. granted under DCR 33(2) and 33(4), wherein Government has exempted payment of premium by Educational ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 5 220.wp.2059.07.doc Institutes by 97.5%. The Petitioner then applied for refund of excess premium of Rs.20,02,026/- which was already paid by them. The file of the Petitioner was misplaced and the proposal was put up on the basis of photo copies submitted by the parties as the payment of premium was made by the Trust before the Government Notification came into force, the matter was submitted for the approval of the Municipal Commissioner. The Municipal Commissioner had accorded sanction for the same on 2nd May 2005. Thereafter, the papers were put up before the Municipal Chief Auditor. The Municipal Chief Auditor had objected the said proposal. Affiant has claimed ignorance regarding the basis on which Deputy Secretary had calculated the amount of Rs.4,20,204/-. According to him the Notification dated 14th December, 1998 does not clearly indicate that the exemption/concession was granted with retrospective effect and therefore, the Government Resolution will have the effect from the date of its issuance and not from an earlier date. The Petitioner had earlier filed Writ Petition No. 2431 of 2006 before this Court. This Court had directed the 1st Respondent on 18th June 2007 that it should pass a speaking order on the application of the Petitioner within four weeks from the date of passing of the said order and communicated within 15 days thereafter. Accordingly, hearing was given to the Petitioner and the Municipal Commissioner had passed order on ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 6 220.wp.2059.07.doc 23rd July 2007. The said order of rejecting the application of the Petitioner was communicated to the Petitioner.
5] Heard the learned Advocate appearing for the Petitioner, for the 1st Respondent and the learned AGP for 2 nd Respondent. The learned Advocate appearing for the Petitioner has taken us through the Notification issued by Urban Development Department on 14 th December 1998. It has been submitted that the Government decided to refund the premium in view of the said notification. He also pointed out that initially the Government had notified on 20 th February 1991 the Development Control Regulations for Greater Mumbai under Section 31(1) of the Maharashtra Regional and Town Planing Act, 1966 (for short "MRTP" Act). It came into force w.e.f. 29 th March 1991. Regulations 33(2) and 33(4) of the said Regulations provided for grant of additional F.S.I. over and above the permissible F.S.I. for buildings of Educational, Medical and Institutional users and buildings of star category Residential Hotels on the condition that in lieu of the additional F.S.I. granted, the landowner / developer will have to pay certain amount of premium as may be decided by the Government. However, those regulations did not spell out the amount of premium that will be shared between the Municipal Corporation Greater Mumbai and the State Government. Further Notification came to be issued on 9 th May, ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 7 220.wp.2059.07.doc 1995 which decided that the said premium shall be charged on the basis of market value prevailing on the date of issue of the Government letter granting additional F.S.I. and the premium shall be for the area equivalent to additional floor space index proposed to be granted. At the same time, it was decided to give some relief to Educational, Medical, Institutional users and starred category Residential Hotels. In the light of the provisions contained in the Development Control Regulations, the additional F.S.I to the specific users was to be granted by the MCGM or the Government, after obtaining a undertaking from the owner to the effect that premium shall be paid as may be decided by the Government. Thereafter, Government had received several representations from the Educational Institution etc. praying that the amount of premium worked out on the basis of market value of the land is very much on the higher side and therefore, they requested to lower it down. Considering those facts, the Government granted relief in payment of premium. The revised rates were disclosed in the said Notification and further it was specifically stated that "in all the cases, therefore, where additional F.S.I. is granted in past, on the production of undertaking market value of the land in question prevailing at the time grant of additional F.S.I, references shall be made to the Deputy Director of Town Planning immediately and ascertaining the requisites land ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 8 220.wp.2059.07.doc values". However, the said Notification disclosed that when the owner had deposited amount of premium more than what is actually due as per the revised rates, the balance shall be refunded by the Corporation/State Government to the party. The learned Advocate appearing for the Petitioner, therefore, submitted that the said Notification is squarely applicable to the claim made by the Petitioner. Accordingly, a representation was made. In principle, it was accepted by the Municipal Corporation. However, the Auditor of the 1 st Respondent has taken objection and therefore, it was turned down. The rejection of the representation of the Petitioner is illegal.
6] It has been submitted on behalf of the Respondents that the normal permissible F.S.I/buildup area was already consumed for the existing building by the Petitioner. Thereafter, further request was made for grant of additional F.S.I. As per the provisions then prevailing a premium towards the additional F.S.I was recovered on 22 nd April 1997 in view of the Horizontal as well as Vertical extension up to 5 th floor. While working out on the premium of additional F.S.I. in the year 1997, the land rate in the year 1996 was adopted. Thereafter, after receipt of the land rate of 1997, a difference in the premium amounting to Rs.4,03,710/- was recovered on 2nd September, 1997 from the owner i.e. the Petitioner. Subsequently, the Notification dated 14 th December, 1998 ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 9 220.wp.2059.07.doc for grant of concession in the premium for additional F.S.I. to Educational Building was promulgated. In the present case all the recoveries including the premium were already effected as per the Notification dated 9th May 1995. The issue of the levy of the premium of additional F.S.I. thereof was fully settled prior to the issuance of the Government Notification dated 14th December, 1998. The State Government Notification is silent on the issue with regard to the proposal where premium has been paid fully and the payment issue is already settled. The notification is silent on the issue whether such cases can be reopened and therefore, the representation by the Petitioner has been rightly rejected by the 1st Respondent on 23rd July, 2007. 7] The facts in this case are almost admitted. Only the question of interpretation of the notification is required to be considered. It is not in dispute that the Petitioner had consumed the entire F.S.I. and thereafter, when the plans regarding additions and alterations to the existing building with Horizontal as well as Vertical extension up to 5 th floor were approved on 4th December 1995, the question of payment premium cropped up as per the then prevailing rate. The premium of Rs.20,18,520/- towards the additional F.S.I. was recovered on 22 nd April, 1997. It has been clarified and what is not in dispute is that the said premium was based on the rate of the land in the year 1996. The ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 10 220.wp.2059.07.doc payment of the premium was in the year 1997. Therefore, after the receipt of land rates of 1997, the additional premium was recovered on 2nd September 1997. Therefore, the issue of payment of premium was settled before the Notification dated 14 th December 1998 came into force.
8] Reliance has been placed on clause 5 of the said Notification dated 14th December, 1998. It clearly states that while computing the premium, the market value shall be taken as determined by the Town Planning and Valuation Department of the State Government. What has been specifically stated is that "In all the cases, where additional F.S.I. was granted in the past and on the production of the undertaking market value of the land in question prevailing at the time of grant of additional F.S.I, references shall be made to the Deputy Director of the Town Planning immediately and ascertain the requisites land value". Further, it is stated in clause 6 that after ascertaining the proper market value of the land, the excess amount of the premium shall be worked out by the Corporation/ or the Government as the case may be and the party shall be communicated total amount of premium. Two categories have been contemplated. The first is the category where a part premium has been recovered. In such case the owner was required to pay the balance in accordance with the installments referred in the ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 11 220.wp.2059.07.doc notification. The second category was of the owners who have deposited amount of premium more than what is actually due as per the revised rates. In such cases, the balance shall be refunded by the Corporation/State Government to the party.
9] We are required to read the clause 5 and 6 conjointly. It is required to be seen whether an undertaking was given by the Petitioner as contemplated under clause 5 of the notification. The petition is silent on this point. So also the order that has been issued on 23 rd July 2007 by 1st Respondent. The refund of the amount was made conditional. Another factor to be noted from clause 6 as regard the first category is concerned, is that where only a part premium was paid, it has been specifically mentioned that if there is "balance amount" due, then additional amount to be recovered if any (as per balance installments) from the amount shall not be refunded but adjusted in future installments. In the present case, the Urban Development Department of the State Government had given a letter on 19 th January 2000 to the 1st Respondent in which it is specifically stated that in accordance with the Notification dated 14th December, 1998 the Town Planning and Valuation Department has worked out the premium actually payable by the Petitioner was of Rs.1,68,08,104/- and for educational purpose only 2.5% of the amount is to be recovered. Under the said circumstances, ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 12 220.wp.2059.07.doc the net total amount required to be paid by the Petitioner comes to Rs.4,20,204/-. Accordingly, the balance was recovered. Further in view of the conjoint reading of clause 5 and 6, the refund could considered only when the undertaking had been given and therefore, we are of the view that the matter deserves to be remanded for the consideration of the first Respondent. If the undertaking was given as per the said notification, then it would be open to the Respondents to consider the request of the Petitioner. We may clarify here that we have not expressed/adjudicated our opinion as to whether the Notification dated 14th December, 1998 had retrospective effect. With these observations, we pass the following order:-
O R D E R
a) The 2nd Respondent shall consider whether the Petitioner has given undertaking as contemplated under clause 7 (5) of the Notification issued by Urban Development Department dated 14th December, 1998. If it is found that such undertaking was given, then the request of the Petitioner for refund shall be considered afresh. The decision on the said request be taken ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:24:00 ::: habeeb 13 220.wp.2059.07.doc within a period of two months from the date of uploading of this order. We make it clear here that we have not made any adjudication on the question whether the said notification has a retrospective effect or not.
b) On the above terms, Rule issued in writ petition is stands disposed of with no order as to costs.
(SMT. VIBHA KANKANWADI, J) (A. S. OKA, J.)
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