The Anjuman - I - Islam vs The Municipal Commissioner , ...
2017 Latest Caselaw 6625 Bom

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                  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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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,

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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

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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.)