Bombay High Court
Samta Nagar Co-Operative Housing ... vs Municipal Corporation Of Greater ... on 5 February, 2021
Bench: R.D. Dhanuka, Madhav Jayajirao Jamdar
bdp
1/79
wp-1699.16(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1699 OF 2016
1. Samta Nagar Co-operative Housing
Societies Union Limited, a society
registered under the provisions of the
Maharashtra Co-operative Societies
Act, 1960 bearing registration no.
BOM/W-R/HSG (OH)/3246/1987/88
having its registered address at
Building No. 19D/304, Samta Nagar,
Kandivali (East), Mumbai - 400 101
2. SD Corporation Private Limited a
company incorporated under the
provisions of the Companies Act,
1956 and having its office at 41/44
Minoo Desai Marg, Colaba,
Mumbai - 400 005. ... Petitioners
Versus
1. Municipal Corporation of Greater
Mumbai, through the Municipal
Commissioner having its office at
Mahanagarpalika Building, Mumba -
400 001.
2. The Maharashtra Housing and Area
Development Authority, Grihanirman
Bhavan, Kalanagar, Bandra East,
Mumbai, Maharashtra - 400 051.
3. State of Maharashtra through the
Urban Development Department,
having its office at Mantralya,
Mumbai-400 032. ... Respondents
******
Dr. Milind Sathe, Senior Counsel a/w Mr. Bhushan Deshmukh, Mrs.Jasmine
Kachalia, Mr. Aryan Srivastava i/by M/s. Wadia Ghandy and Co. for the
Petitioners.
Mr. Anil Sakhare, Senior Advocate a/w Mr. Rohan Mirpury and Ms.Trupti
Puranik for the Respondent No.1-M.C.G.M.
::: Uploaded on - 05/02/2021 ::: Downloaded on - 06/02/2021 04:16:20 :::
bdp
2/79
wp-1699.16(j).doc
Mr. P. G. Lad a/w Ms. Aparna Kalathil and Ms. Sayli Apte for the
Respondent No.2-MHADA.
Mr. Sukanta Karmakar, Asst. Government Pleader Respondent No.3-State.
******
CORAM: R. D. DHANUKA AND
MADHAV J. JAMDAR, JJ.
RESERVE DATE : 20th JANUARY, 2021.
PRONOUNCE DATE : 5th FEBRUARY, 2021.
JUDGMENT (Per R.D. Dhanuka, J.) :-
. By this petition filed under Article 226 of the Constitution of India,
the petitioners have prayed for a declaration that Regulation 33(5) of the
Development Control Regulations (hereinafter referred to as 'the said D.C.
Regulations') permits utilization of area which is free of FSI area including
staircase, fire escape staircase, car park area, staircase room, lift machine
room, lift rooms, lobby, elevated water tanks in buildings for rehabilitation
component on the land described in the petition without payment of
premium. The petitioners have also impugned an order dated 6 th January,
2018 and seeks refund of Rs.27 crores along with interest incurred thereon
and for other reliefs. Some of the relevant facts for the purpose of deciding
this writ petition are as under :-
2. The petitioner no.1 is an Apex Society incorporated under the
provisions of the Maharashtra Co-operative Societies Act, 1960 and is the
lessees of the respondent no.2 i.e. The Maharashtra Housing and Area
Development Authority (MHADA) with respect to all that piece and parcel
of the land situate and lying at Survey Nos. 55 and 56, CTS No. 837 to 840
of Village Poisar, Taluka Borivali, admeasuring 2,13,867.50 square meters or
bdp
wp-1699.16(j).doc
thereabouts situate at Samta Nagar, Kandivali (East), Mumbai - 400 101
(hereinafter referred to as 'the said land'). The petitioner no.1 comprises of
65 societies and are constructing buildings including rehab buildings for
about 1955 individuals/members of the societies who belongs to Economical
Weaker Sections and Low Income Group.
3. The petitioner no.2 has acquired the development rights with respect
to the said land from the petitioner no.1 and other 65 individual societies.
The respondent no. 2 is the owner of the said land. There were about 165
structures/buildings on the said land which are now being re-developed by
the petitioner no.2.
4. Sometime in the year 1961-62, the respondent no.2 had developed
160 buildings having 2714 tenaments for different income groups such as (i)
High Income Group - 12 buildings - 240 tenaments, (ii) Middle Income
Group - 35 buildings - 700 tenaments, (iii) Low Income Group (LIG-Big) -
45 buildings - 672 tenaments, (iv) Low Income Group (LIG Small) - 31
buildings - 816 tenaments and (v) Economical Weaker Section - 37
buildings - 296 tenaments.
5. On 3rd October, 2007, 29th February, 2008, 20th June,2014, 1st July,
2014 and 31st March, 2016, the respondent no.2 issued Letter of Offer to the
petitioner no.1 for certain buildings comprising of about 1784 tenaments out
of 2714 tenaments for integrated development in the layout.
bdp
wp-1699.16(j).doc
6. On 25th October, 2010, the petitioners no.2 submitted a proposal for
building no.1. On 26th November, 2010, the respondent no.1 issued IOD in
respect of the said building no.1. On 25th July, 2011, the respondent no.1
issued commencement certificate. On 15th January, 2016, the respondent no.1
approved the plans for building comprising of 7 wings for various floors. On
16th April, 2016, the petitioner no.1 applied to the Deputy Chief Engineer,
Building Proposal Department for relaxation/concession by not charging any
premium in accordance with Regulation 33(10), Clause (6) of Regulation
33(5) read with Sub-Regulations 6.21 and 6.22 of Appendix IV of the D.C.
Regulations. The petitioner no.1 submitted amended plans for building no.1
(rehab building).
7. By letter dated 22nd April, 2016, the Deputy Chief Engineer (building
proposal) W.S.-II rejected the said request made by the petitioners for
granting relaxation from paying of premium for staircase, staircase lobby,
lift, lift lobby from FSI configuration on the ground that there was no
provision in Regulation 35(ii)(iv) for the cases of reconstruction dealt with
under Regulation 33(5) of the said D.C. Regulations or any other provisions
of D.C. Regulations 1991 in force. Being aggrieved by the said order dated
22nd April, 2016, the petitioners filed this writ petition for various reliefs on
4th May, 2016.
8. On 7th December, 2016, this Court recorded a statement made by the
petitioners that the comprehensive representation would be submitted to the
Corporation in respect of getting regularization in payment of premium for
bdp
wp-1699.16(j).doc
staircase and lift lobby etc. This Court made it clear that if any such
representation would be received by the respondent no.1 within one week,
the respondent no.1 shall deal with the same in accordance with the law and
to communicate the decision to the petitioners. This Court did not express
any opinion on merits. The said order was clarified by order dated 22 nd
December, 2016. This Court directed the respondent no.1 to decide the said
representation within four weeks from the date 26th December, 2016.
9. The petitioners thereafter filed their detailed representation before the
Municipal Commissioner of the respondent no.1. On 4 th February, 2017, the
Municipal Commissioner of the respondent no.1 held that the provisions of
D.C. Regulation 33(10), Clauses 6.21 and 6.22 i.e. allowing concession for
area of staircase, lift etc without charging premium is applicable only in case
if the applicant follows provisions 1.2 of Appendix IV to D.C. Regulation
33(10). It is held that in the present case, the rehabilitation areas proposed
are more than 25 square meters and hence petitioners were not eligible for
concession under Clauses 6.21 and 6.22. However, the area of staircase, lift
etc proportionate in the existing built-up area of the existing occupants as
received by MHADA could only be considered and the premium shall be
charged on the balance area. The petitioners thereafter applied for
amendment to the Writ Petition and also impugned the said order dated 4 th
February, 2017. The petitioners were allowed to amend the petition on 23 rd
March, 2017.
10. On 12th October, 2017, this Court admitted this writ petition and made
bdp
wp-1699.16(j).doc
the rule returnable on 6th November, 2017 for hearing. This Court directed
that in the meanwhile the respondent no.1 to process the application filed by
the petitioners for occupation certificate in respect of 4 wings of
rehabilitation buildings, construction of which was stated to be already
completed, without exemption for staircase premium. This Court however
made it clear that the said interim order was made subject to the petitioner
no.2 filing an undertaking before this Court that in case it fails in the Writ
Petition, it would make staircase payment. Such undertaking was directed to
be filed within two weeks from the date of the said order. The petitioners
accordingly filed an undertaking before this Court.
11. Being aggrieved by the said interim order dated 12 th October, 2017,
the respondent no.1 preferred a Special Leave Petition (Special Leave to
Appeal) (C) No(s). 32918 of 2017 before the Hon'ble Supreme Court. By an
order dated 15th December, 2017, the Hon'ble Supreme Court issued notice
in the said matter and clarified that in the meanwhile application for the
occupation certificate may be processed but no final order to be passed. The
Hon'ble Supreme Court thereafter recorded the statement made by the
petitioners herein that the petitioners would deposit an amount of Rs.27
crores in the registry of the Hon'ble Supreme Court on or before 31 st
January, 2018. The Hon'ble Supreme Court directed that on receipt of the
said amount, the registry will keep it in a fixed deposit initially for a period
of 6 months and to issue a receipt to the respondents. The respondent no.1
would grant occupancy certificate within two weeks on production of a
receipt of the deposit before the respondent no.1 by the petitioners. The
bdp
wp-1699.16(j).doc
petitioners accordingly deposited the said sum of Rs.27 crores with the
registry of the Hon'ble Supreme Court on 24 th January, 2018. The respondent
no.1 thereafter granted part occupation certificate in favour of the petitioner
no.1 in respect of various buildings.
12. By an order dated 31st August, 2018, the Hon'ble Supreme Court
directed that the said amount of Rs.27 crores deposited by the petitioners
with the registry of the Hon'ble Supreme Court, with accrued interest be
handed over to the respondent no.1 herein subject to final orders passed in
this Writ Petition pending in this Court. The Hon'ble Supreme Court directed
that the respondent no.1 should ensure that all the bylaws and the rules etc.
with regard to the fire safety and other legal requirements were complied
with and disposed of the said Special Leave Petition.
13. In the meanwhile, this Court disposed of the Writ Petition bearing No.
187 of 2016 filed by Wadhwa Estate and Developers(I) Pvt. Ltd. against the
Municipal Corporation of Greater Mumbai seeking a declaration that the
respondent no.1-Corporation did not have the authority to charge premium
@ 100% for the development under Regulation 33(5) of the said D.C.
Regulations for Greater Mumbai 1991 for the open space deficiency. The
petitioners in the said Writ Petition had also challenged the demand notice
issued by the Municipal Corporation by which the petitioners therein were
required to pay 100% premium for the open space deficiency. This Court
allowed the said Writ Petition filed by the said Wadhwa Estate and
Developers(I) Pvt. Ltd. and declared that the respondents therein would not
bdp
wp-1699.16(j).doc
be entitled to charge 100% premium under the regulation pertaining to open
space deficiency under the sub Clause 6 in Annexure 'A' of Appendix IV of
Regulation 33(10) of the Regulation and the impugned notice demanding the
said amount was bad in law.
14. The Hon'ble Supreme Court has admitted Special Leave petition in
Special Leave to Appeal (C) No. 8186 of 2018 against the said judgment
delivered by this Court in case of Wadhwa Estate and Developers(I) Pvt.
Ltd. and another. The Hon'ble Supreme Court has granted stay of the order
passed by this Court in the Writ Petition No. 187 of 2016. The said Special
Leave Petition is pending before the Hon'ble Supreme Court.
15. The Hon'ble Supreme Court expedited the hearing of this Writ
Petition and directed that the Writ Petition be disposed of by 17 th January,
2021. Both the parties were allowed to file their written arguments. The writ
petition was thereafter heard by this Court at length finally and is being
disposed off.
16. The respondent no.1 filed reply dated 24 th June, 2016, additional
affidavit in reply filed on 24th April, 2017 and affidavit in reply dated 9 th
January, 2019. The respondent no.2 filed affidavits dated 17th September,
2016 and 1st January, 2021. The petitioner no.2. filed an affidavit on 26 th
October, 2017 and additional affidavit on 5th January, 2021. Both the parties
also filed compilation containing various provisions of the said D.C.
Regulations for consideration of this Court.
bdp
wp-1699.16(j).doc
17. Dr. Sathe, learned senior counsel for the petitioners invited our
attention to various documents forming part of the record and also various
averments made by the parties in their respective affidavits by his client in
the writ petition.
18. It is submitted that relaxations/exemptions/benefits enumerated under
Regulation 33(10) of D.C. Regulations in respect of Slum Rehabilitation
Projects are also available to the Redevelopment under Regulation 33(5) of
the D.C. Regulations under which the petitioners' redevelopment project
falls. The respondent no.1 has categorized certain areas in a building which
are not to be included in computation of FSI ("Free of FSI Area") which are
enumerated in Regulation 35(2) of the D.C. Regulations. Clause 35(2)(c)
before 2012 and Clause 35(2)(iii) deal with areas covered by staircase
rooms, lift rooms etc. He relied upon Sub-Regulation (6) of Regulation
33(5) of the D.C. Regulations and would submit that all
relaxations/exemptions to the planning requirements under D.C. Regulations
enumerated under Regulation 33(10) of the D.C. Regulations are also
applicable to the present development being undertaken on the said land
under Regulation 33(5) of the D.C. Regulations.
19. Learned senior counsel placed reliance on paragraphs 6.21 and 6.22
of Appendix IV of the D.C. Regulations and would submit that the
provisions of Regulation 35(2) (iv) of the D.C. Regulations insofar as they
relate to the payment of premium for such free of FSI areas in rehabilitation
bdp
wp-1699.16(j).doc
component had been exempted and/or relaxed by Clause 6 of Regulation
33(5) of the D.C. Regulations read with Regulation 33(10) and Appendix IV
of the D.C. Regulations.
20. Learned senior counsel invited our attention to the Regulation 35(2)
of the D.C. Regulations as amended on 6 th January, 2012 and would submit
that certain free of FSI area has been included under Regulation 35(2) (iii)
which are allowed to be constructed without payment of premium to
respondent no.1. The only free of FSI covered under Regulation 33(2) (iv)
are staircases/lift wells including lobbies excluding those covered under D.C.
Regulation no.35(2) (iii). He submits that though Regulation 35(2) of the
D.C. Regulations has been amended, the intent of Sub-Regulation 6.21 and
6.22 of Appendix IV of D.C. Regulations remains that premium shall not be
charged for such free of FSI area under Regulation 35(2) (iv) of the D.C.
Regulations on rehabilitation component.
21. It is submitted that Regulations 35(2) and 33(5) read with Regulation
33(10) and Appendix IV of the D.C. Regulations clearly indicate that areas
covered by staircase room, lift rooms above topmost storey, staircase/lift
wells and passages in stilt, basement and floors exclusively used for parking
and other ancillary users, staircases/lift wells including lobbies, ought to be
allowed to be constructed as free of FSI area and without charging any
premium for a building of the rehabilitation component. The respondent
no.1 however has illegally disallowed the said relaxation by its impugned
letter dated 22nd April, 2016 and order dated 6th January, 2018.
bdp
wp-1699.16(j).doc
22. Learned senior counsel invited our attention to the various Letters of
Offer issued by the respondent no.2 from time to time. He laid emphasis on
various terms and conditions of the NOC dated 1 st July, 2014 issued by the
respondent no.2 for proposed redevelopment of the existing building of the
LIG big size (1 to 45), LIG small size (1 to 31) EWS (37) MIG size ( 1 to 12
and 35 to 38 and 40 to 47) known as Samata Nagar Co-operative Housing
Society Union Limited bearing CTS No. 837 (Part) to 840 (Part) Survey
Nos. 55 and 56 at Samata Nagar, Kandivali (East), Mumbai - 400 101. He
submits that the said NOC was in continuation of various Letters of Offer
issued by the respondent no.2 from time to time. By the said NOC, the
petitioners were granted no objection for redevelopment of their buildings on
the terms and conditions on the plot admeasuring about 90666.48 sq.meters.
The NOC is granted as per the policy laid down by the MHADA vide
MHADA Resolution Nos. 6260 dated 4th June, 2007, A.R.No. 6397 dated 5th
May, 2009 and A.R.No. 6422 dated 7 th August, 2009 subject to various
conditions setout in the said NOC.
23. Learned senior counsel strongly placed reliance on Clauses 4, 21, 31,
32, 35 and the last paragraph of the said NOC. It is submitted by the learned
senior counsel that by the said NOC, the petitioners were granted permission
for redevelopment of the existing buildings of LIG, big size, small size,
economically weaker section, MIG size etc. as per policy laid down by
MHADA. He submits that under the said NOC, it was made clear that 60%
of the total built up area should be in the form of EWS/LIG/MIG. The
bdp
wp-1699.16(j).doc
petitioners were required to construct separate buildings for rehabilitation of
existing tenants and for the purpose of free sale. The petitioners were to form
the independent co-operative housing society for rehab building of tenants as
well as for free sale component after giving possession to the existing
tenants and prospective buyers, wherever possible.
24. Learned senior counsel placed reliance on the last paragraph of the
said NOC which provided that the MHADA shall consider the proposal for
amendment of the layout for 2.5 FSI. Further 2.5 FSI was granted to the
petitioners on the notionally sub-divided area. The proposal of the
petitioners should be considered for the 2.5 FSI and all the directives given
in the Government Resolution of U.D.D. Vide No.TPB/4308/74/
C.NO.11/2008/UD-11 dated 6th December, 2008 shall be applicable to the
petitioners.
25. Learned senior counsel invited our attention to the notification dated
26th August, 2009 describing the maximum area to be allotted for the EWS,
LIG and MIG tenaments. He invited our attention to the Regulation 33(5)(1)
(2)(d) and proviso (3)(c) and would submit that the said provision as on 6 th
December, 2008 also had made it clear that notwithstanding anything
contained in the Regulation 33(10) of that Regulation shall apply for housing
scheme under rehabilitation for tenament under EWS/LIG/MIG categories.
Regulation 33(5) was substituted on 6th December, 2008 which was
applicable to the redevelopment undertaken by the petitioners.
bdp
wp-1699.16(j).doc
26. Learned senior counsel invited our attention to the Regulation 33(5)
thereby substituting the earlier Resolution 33(5) by notification dated 8th
October, 2013. He invited our attention to the Regulation 33(5)(2), (6) and
(9) and would submit that the said amendment substituting the earlier
Regulation 33(5) w.e.f. 8th October, 2013 was clearly not applicable to the
project undertaken by the petitioners. Even if the same would have been
applied, Clause 6 of Regulation 33(5) made it clear that notwithstanding
anything contained in the Regulations incorporated under Regulation 33(10),
these Regulations shall apply to the housing schemes under this regulation
for construction of the tenaments of EWS/LIG and MIG categories. He
submits that the 3 FSI available for redevelopment of existing housing
scheme of MHADA containing (i) EWS/LIG and/or (ii) MIG with carpet
area less than the maximum carpet area described by the MIG was
admittedly not given to the petitioners in view of the petitioners' project
being clearly governed by the directives given in the Government Resolution
dated 6th December, 2008 applying 2.5 FSI only.
27. It is submitted by the learned senior counsel that the irrespective of
the area of the tenaments offered by the petitioners to the existing occupants
under EWS or LIG in this case, the petitioners were entitled to the relaxation
granted to the schemes under Regulation 33(10) of the D.C. Regulations.
The respondent no.1 thus could not have demanded any premium from the
petitioners irrespective of the tenament constructed by the petitioners i.e.
under rehabilitation component. Regulation 33(5)(2)(c) of the D.C.
Regulations does not provide for any specific area for grant of relaxation.
bdp
wp-1699.16(j).doc
Clause (6) of Regulation 33(5) provides for a non-obstante clause and thus
prevail over the other conditions prescribed under the said Regulation. Thus
irrespective of the petitioners having constructed more than 25 sq.mtrs
tenaments, all relaxations available to the schemes under Regulation 33(10)
of the D.C. Regulations would apply to the project undertaken by the
petitioners under Regulation 33(5)(2)(c) of the D.C. Regulations.
28. It is submitted that in this case, the petitioners have not carried out
any tenaments for MIG group. Regulation 33(10) has no qualification.
Clauses 6.21 and 6.22 of Regulation 33(10) which clearly provide that no
premium shall be charged for exclusion of the staircase and lift etc. as
covered under the provisions of D.C. Regulations 35(2)(c) which would
apply to the project undertaken by the petitioners. He submits that under
Clause 6.22 of the said Regulation 33(10) all the relaxation provided under
the said Regulation shall be given to the rehabilitation component free of any
premium proposed under Regulation 33(5) (2) (c) of the D.C. Regulations.
The tenament area mentioned in Regulation 33(10) cannot apply to the
project undertaken under Regulation 33(5).
29. Learned senior counsel invited our attention to the first impugned
order dated 22nd April, 2016 passed by the Deputy Chief Engineer (Building
Proposal) annexed at Ex.I to the petition and would submit that the
application for relaxation of premium made by the petitioners was rejected
solely on the ground that there was no provision in Regulation 35(2)(iv) for
the cases of reconstruction dealt under Regulation 33(5) of D.C. Regulations
bdp
wp-1699.16(j).doc
1991 or any other provisions of modified D.C. Regulations 1991 in force.
He submits that the said order shows total perversity and is ex-facie contrary
to Clause 6 of Regulation 33(5) of the D.C. Regulations.
30. Learned senior counsel strongly placed reliance on the judgment
delivered on 14th November, 2017 by a Division Bench of this Court in case
of Wadhwa Estate and Developer (I) Pvt. Ltd. and Anr. vs. Municipal
Corporation of Greater Mumbai and Others in Writ Petition No.187 of
2016 and in particular paragraphs 3, 4, 6 to 11 and would submit that this
Court on interpretation of Regulations 33(5), 33(10), Clauses 6.21, 6.22 and
6.23 of Annexure A of Appendix IV has declared that the Municipal
Corporation would not be entitled to charge 100% premium for the
relaxation containing open space deficiency under the Sub-clause 6 in
Annexure A of Appendix IV of Regulation 33(10). He submits that the said
judgment would squarely apply to the facts of this case and is binding on this
Court. Learned senior counsel submits that the said judgment though has
been impugned by the Municipal Corporation before the Hon'ble Supreme
Court, the said judgment is not stayed by the Hon'ble Supreme Court.
31. Learned senior counsel for the petitioners invited our attention to the
averments made by the petitioners in paragraph (4) (dd) of the writ petition
and would submit that the petitioners had specifically given various
instances showing that the respondent no.1 had duly granted relaxation in
payment of premium for loading of free FSI area in rehabilitation component
in a project under Regulation 33(5) of the D.C. Regulations to many
bdp
wp-1699.16(j).doc
similarly situated developers/society. He invited our attention to the
document annexed at pages 267 to 296 in support of this submission. The
respondent no.1 has also granted various relaxation to the project under
Regulation 33(7) read with Appendix III Clause (8) on similar basis in
respect of all rehabilitation component. There cannot be a burden on the
developer of additional liabilities of premium. He submits that there was
thus blatant discrimination against the petitioners by the respondent no.1.
32. Learned senior counsel placed reliance on the circular dated 18 th
January, 2016 issued by the respondent no.1 i.e. the policy regarding
condonation of open space deficiency created on account of loading of
fungible FSI and would submit that the said circular would clearly indicate
that all relaxations available under Regulation 33(10) of D.C. Regulations
shall be made applicable to Regulation 33(5) of the D.C. Regulations. He
submits that the said circular also refers to Clause 6 of Regulation 33(5) read
with Clauses 6.21 and 6.22 of Appendix IV (Regulation 33(10) of D.C.
Regulations) of the D.C. Regulations. The petitioners are also seeking to
rely upon the said provision for seeking exemption in payment for loading of
free of FSI area for rehabilitation component.
33. Learned senior counsel for the petitioners submits that the premium
demanded by the respondent no.1 are without authority of law under Article
265 of the Constitution of India. There is neither any express nor any
implied authority for the respondent no.1 to enforce such premium. The
demand for premium raised by the respondent no.1 is in absence of any
bdp
wp-1699.16(j).doc
authority of law under Regulation 33(5) of the D.C. Regulations and thus
such demands are in the nature of compulsory extractions. The respondent
no.1 has no authority to demand such premium and the same would be in
violation of Article 19(1)(g) and/or Article 300-A of the Constitution of
India. In support of this submission, learned senior counsel placed reliance
on the judgment of Supreme Court in case of Ahmedabad Urban
Development Authority vs. Sharadkumar Jayantikumar Pasawalla an
others, (1992) 3 SCC 285 and in particular paragraph (7). He also relied
upon the judgments of this court (i) in case of Bharati Tele Ventures vs.
State of Maharashtra, 2007(4) Mah.L.J. 105 and in particular paragraph
(35) and (ii) Buildarch, Mumbai and another vs. Municipal Corporation of
Greater Mumbai and others, 2010 SCC Online Bom. 778 and in particular
paragraph (15).
34. It is submitted by the learned senior counsel that whilst interpreting
taxing statutes, the golden rule of strict interpretation of law is to be
followed. The State cannot at its whim burden its citizens without any
authority of law. The respondent no.1 cannot be allowed to expand/interpret
to include those which were not intended by the legislature. He submits that
since the Clause 6 of Regulation 33(5) is clear and explicit for relaxation
from payment of premium read with Regulation 35(2) read with Regulation
33(10), condition no.6.21 and 6.22, the respondent no.1 cannot be allowed to
interpret the said provision in a different way so as to deprive the petitioners
from the relaxation provided under those provisions.
bdp
wp-1699.16(j).doc
35. In his alternate submission, he submits that even if there is any
ambiguity under the provision of Regulation 33(5) read with 33(10) and it is
open to two interpretations, the benefit of the interpretation has to be given
to the petitioners and not to the respondent no.1. In support of this
submission, learned senior counsel placed reliance on the judgment of
Supreme Court in case of Promoters & Builders Assn. Of Pune vs. Pune
Municipal Corporation and others, 2007 (6) SCC 143 and in particular
paragraph (11) and judgment of this court in case of Achal Industries vs.
State of Karnataka, 2019 SCC Online SC 428 and in particular paragraph
(11).
36. Learned senior counsel invited our attention to the contentions raised
by the respondent no.1 in the affidavit in reply and made submissions
thereon. Insofar as the issue raised by the respondent no.1 that the writ
petition is not maintainable on the ground that the petitioners had not
exhausted the remedy available in Regulation 64(1)(a) of the D.C.
Regulations prior to filing of this writ petition by applying to the Municipal
Commissioner for seeking special permission is concerned, it is submitted
that the petitioners had already made representation to the respondent no.1
pursuant to the order passed by this Court which representation has been
already decided vide order dated 4th February, 2017 thereby rejecting the said
representation for relaxation. He submits that in any event, since the order
passed by the Municipal Commissioner is ex-facie illegal and
unconstitutional, the petitioners have right to challenge such illegal acts by
filing a writ petition.
bdp
wp-1699.16(j).doc
37. Insofar as the contentions raised by the respondent no.1 that the
petitioners could not be granted relaxation in view of the carpet area
provided by the petitioners under Regulation 33(5) being more than the
carpet area described in Regulation 33(10) which was originally fixed at
minimum 180 sq.feet, increased to 225 sq.feet and thereafter to 269 sq.feet is
concerned, it is submitted by the learned senior counsel that the intent of
Sub-Regulation 6.22 and 6.23 of Appendix IV is clear that no premium shall
be charged for such areas that are free of FSI under Regulation 35(2)
pertaining to rehabilitation component. The D.C. Regulations does not
restrict or fix any minimum or maximum areas in rehabilitation component
for which exemptions as sought for by the petitioners can be restricted. The
areas of rehab component is also fixed by the same D.C. Regulations which
grant the relaxations.
38. Learned senior counsel for the petitioners relied upon various
averments made in the said additional affidavit filed by the petitioners
controverting the said allegations made by the MHADA in the additional
affidavit in reply dated 1st January, 2021.
39. After closure of the arguments, the petitioners circulated 'tabular chart
showing the breakup of the carpet area of the respective tenaments' provided
by the petitioners. The MHADA circulated a compilation of three
notifications. The matter was placed on board for directions on 20 th January,
2021. This Court permitted the petitioners as well as the Municipal
bdp
wp-1699.16(j).doc
Corporation to file a supplementary submissions to deal with the said chart
tendered by the petitioners as well as to address the issue regarding the
Regulation 35(2)(c) of the Development Control Regulations, 1991. The
petitioners as well as the Municipal Corporation filed supplementary
submissions.
40. In the supplementary submissions submitted by the petitioners, it is
contended that all schemes sanctioned under D.C.Regulation 33(5) for EWS/
LIG/MIG including redevelopment thereof are entitled for benefit of non-
payment of premium for exclusion of area like staircase and lift well etc.
from computation of FSI in view of Clause 6 of D.C.Regulation 33(5) as
conferred upon slum schemes under D.C.Regulation 33(10). The benefit of
exclusion of staircase from computation of FSI is applicable to all schemes
under D.C.Regulation 33(5). It is pointed out in the additional written
arguments that the contentions of the respondents that the schemes of the
petitioners is not for the benefit of EWS/LIG/MIG and at the same time that
the original character of the scheme for the benefit of EWS/LIG/MIG
underwent a change and a redevelopment of MHADA colonies is not for the
benefit of EWS/LIG/MIG are inconsistent with each other. The issue raised
about the alleged change in character of scheme is as and by way of
afterthought and cannot be permitted. No such issue was mentioned in the
impugned orders, communications and affidavits filed by either of the
respondent.
41. It is contended that all the schemes sanctioned under D.C.Regulation
bdp
wp-1699.16(j).doc
33(5) are entitled to the benefit of Clause (6) whether it is the original
development of MHADA colony or it is a redevelopment of MHADA
colony. No distinction is made out under Clause (6) of D.C.Regulation 33(5)
between the original development and redevelopment as is artificially sought
to be created by the respondents at that stage contrary to Clause 6 of D.C.
Regulation 33(5). The object of D.C.Regulation 33(5) under D.C.
Regulations is to rehab EWS/LIG/MIG occupants whose buildings have
become dilapidated and MHADA is not in a position to redevelop the same.
The increased FSI and relaxations of dimensions as well as payments of
premium as available for slum projects are also extended to the
redevelopment under D.C. Regulation 33(5). It also contemplates giving
additional area to these occupants EWS/LIG/MIG as mentioned in the
housing policy which translated into D.C. Regulation 33(5). Every sanction
of scheme under 33(5) is for the benefit of EWS/LIG/MIG including the
redevelopment of MHADA colonies.
42. Insofar as area mentioned in the Chart submitted by the petitioners is
concerned, it is contended that D.C. Regulation 33(5) introduced by a
notification dated 6th December, 2008 provides that the carpet area to be
provided through EWS/LIG/MIG tenaments as determined by the
Government from time to time. The Government Resolution dated 5 th
February, 2008 has redefined the EWS/LIG categories and now provides that
the area for EWS and LIG categories as reflected shall not be more than 45
sq.mtrs. The petitioners have provided the areas that are being provided to
EWS and LIG categories in paragraph 5.5 of their additional affidavit dated
bdp
wp-1699.16(j).doc
5th January, 2021. The areas to be provided to both LIG categories and EWS
categories are not exceeding 45 sq.mtrs. of carpet area as per Government
Resolution dated 26th August, 2009 and 5th February, 2008. The area
provided by the petitioners to LIG and EWS categories are less than 45
sq.mtrs. of carpet area.
43. It is submitted that before amendment on 6th January, 2012, certain
areas such as staircase, lift, lobby, basement, covered parking etc. were
excluded from computation of FSI. After the amendment of D.C.Regulation
35(2) w.e.f. 6th January, 2012, areas such as staircase, lift, lobby continue to
be excluded in computation in FSI. Certain areas such as basement, covered
parking etc. are included in computation of FSI. However, a new Clause i.e.
D.C.Regulation 35(4) is added, wherein in Commissioner can permit
fungible FSI not exceeding 35% over and above the existing FSI, for
residential development by charging premium. The case of the petitioners
however falls under Clause 6 of D.C.Regulation 33(5) that no premium shall
be charged for exclusion of staircases and lift well etc. from computation of
FSI. The schemes under D.C.Regulation 33(5) are exempted from the
payment of premium for exclusion of staircase and lift well under
D.C.Regulation 35(2)(c) which is now D.C.Regulation 35(2) (iii). It is
submitted that as per amendment of 6 th December, 2012 to D.C.Regulations,
1991, as per D.C. Regulation 35(4), the fungible FSI not exceeding 35% for
residential development, is permitted over and above the admissible FSI by
charging of premium notwithstanding anything contained in D.C.
Regulations 32, 33 and 34.
bdp
wp-1699.16(j).doc
44. It is contended that at the time, when the petitioners' scheme under
D.C. Regulation 33(5) was sanctioned, the petitioners were providing an area
of not exceeding 45 sq.mtrs. carpet area along with certain free of FSI areas
such as balcony, flower bed etc. After the amendment of D.C. Regulations
on 6th January, 2012, certain areas such as balcony, flower bed which were
earlier excluded from computation of FSI are included in computation of
FSI. Hence, the members of the petitioner no.1 society who were otherwise
entitled to carpet area upto 45 sq.mtrs. along with certain free of FSI areas
such as balcony, flower bed, these free of FSI areas were no longer available.
Hence, to compensate this, the Government introduced "Compensatory
Fungible FSI" of 35% over and above the permissible FSI.
45. It is submitted that explanations made in the additional written
arguments are being provided without prejudice to the arguments that on the
plain reading of D.C. Regulation 33(5), the arguments of 'change of
character' on redevelopment of EWS/LIG/MIG and the argument about the
areas that are being provided to EWS/LIG/MIG etc. are both misconceived.
46. Mr. Sakhare, learned Senior Counsel for respondent no.1 on the other
hand invited our attention to various provisions of Development Control
Regulation amended from time to time, various annexures to the Writ
Petition, to the affidavits-in-reply filed by his client, averments made in the
affidavit-in-reply filed by his client and various contentions raised in the
written argument filed before this Court.
bdp
wp-1699.16(j).doc
47. It is submitted by the learned Senior Counsel that the petitioners had
submitted application for amendment of the plan on 16 th April, 2016 and thus
all the provisions as on 16th April, 2016 in force including the provisions of
D.C. Regulations would apply to the project undertaken by the petitioners
and not earlier Government Resolution and the Notification as sought to be
relied upon by the Petitioners. He invited our attention to the objections
raised by respondent no.1 to the maintainability of this Petition and also on
merits raised in the affidavit-in-reply which are summarised in the written
argument filed by respondent no.1.
48. Learned Senior Counsel invited our attention to the order dated
22.04.2016 and also order dated 04.02.2017 passed by the Municipal
Commissioner on the representation made by the petitioners pursuant to an
order passed by this Court dated 7 th December, 2016. He submits that the
Municipal Commissioner though in the order dated 4th February, 2017 has
rejected the claim made by the petitioners for relaxation in payment of
premium on the area of staircase, lift etc., he has exercised his discretion
under Regulation 64 vested in him and directed that the area of staircase, lift
etc. proportionate to the existing built up area of existing occupants as
certified by MHADA can only be considered and the premium shall be
charged on the balance area. He submits that by exercising such discretion
by the Municipal Commissioner, the original demand for payment of
premium on the entire area of construction of rehabilitation component was
substantially reduced to Rs.27 Crores.
bdp
wp-1699.16(j).doc
49. It is submitted that the Municipal Commissioner in the said order has
already held that the petitioners are not entitled to pick and choose
provisions under Appendix IV of D. C. Regulations under Regulation 33(10)
only for the purpose of seeking relaxation. The relaxation under Section
33(10) only applies to the extent of tenament having size of 20.90 sq. mtrs.
carpet area. There is no provision under Regulation 33(10) to grant
relaxation in excess of the said area. Any proposal for relaxation thus would
only be considered to the extent of area specified under Regulation 33(10)
read with Appendix IV thereunder. The Municipal Commissioner, thus,
rightly decided that the existing built up area of the occupant as certified by
MHADA only would be considered and the premium shall be charged on the
balance area. The petitioners are misreading the provisions of D. C.
Regulations to suit itself and seeking concession more than what was
provided under the Regulations. Regulation 33(10) read with Appendix IV
does not contemplate exclusion of provisions of staircase, lift etc. more than
20.9 sq. mtrs. or tenaments.
50. It is submitted by the learned Senior Counsel that Regulation 33 (5)
of D. C. Regulations, 1991 is not at all applicable to the present case.
Regulation 33 (5) provides for construction of new scheme of low cost
housing implemented by MHADA and also to the redevelopment of existing
scheme. He strongly placed reliance on Regulation 33 (5) (5) (b) (i) and (ii)
and also Clauses 1 and 2 of Regulation 33 (5) introduced by notification
dated 8th October, 2013. He submits that in the present case the development
being undertaken by the petitioners cannot be termed as housing scheme for
bdp
wp-1699.16(j).doc
construction of tenament under EWS/LIG/MIG.
51. It is submitted by the learned Senior Counsel that three categories of
constructions are covered under Regulation 33(5)(5) i.e. "(1) Construction of
EWS/LIG/MIG tenaments by MHADA on vacant plot, (2) Redevelopment
Project of the construction EWS/LIG/MIG tenaments towards the share of
MHADA and (3) Re-development Project on existing housing scheme
having rehabilitation components."
52. Learned Senior Counsel placed reliance on clause Regulation 33(5)
and would submit that the relaxation incorporated in Regulation 33(10) shall
apply to the housing scheme under the Regulation for construction of
tenaments under EWS/LIG/MIG categories by MHADA on a vacant plot or
only if the redevelopment project was for construction of EWS/LIG/MIG
towards the share of MHADA. The Redevelopment Project on already
existing scheme is not covered under Clause 6 as the same is not for
construction of any new tenament for EWS/LIG/MIG. The petitioners are
not entitled to seek any benefit for such clause as the present project is not a
housing scheme for construction of tenament under EWS/LIG/MIG
categories. It is a redevelopment project of existing housing scheme.
53. It is submitted by the learned Senior Counsel that the object of
granting benefit of housing scheme for construction of tenament under
EWS/LIG/MIG categories is on the basis that such projects are undertaken
not with any commercial profit motive. The object of the project is to
bdp
wp-1699.16(j).doc
provide housing at affordable rates to particular communities. Present
development does not involve the construction of tenament of
EWS/LIG/MIG categories and only rehabilitation of existing occupants. The
present project does not fall within the ambit and scope of Regulation 33(5).
The project scheme undertaken by the petitioner no.2 is for utilization of full
plot potential and commercial gain of the developers. The petitioners are
thus entitled to any relaxation available to the project undertaken under
Regulation 33(10).
54. Without prejudice to the aforesaid submission, it is submitted by the
learned Senior Counsel for respondent no.1 that the Regulation 33(10)
contemplates that the provisions of Appendix IV shall apply to the
development thereunder. He placed reliance on Clause 1.1 of Appendix IV
in support of his submission that the said clause contemplates that free of
cost residential tenament having carpet of 20.90 sq. mtrs. i.e. 225 sq. ft.
including balcony, bath and water closet but excluding common area shall be
provided. He relied upon Clause 1.2 of Appendix IV and would submit that
under that clause it is contemplated that the structures having residential area
more than 20.90 sq. mtrs. will be eligible only for 20.90. sq. mtr. Area. The
relaxation is to be given qua 20.90 sq. ft. area and the proposal contains
more area, it shall not be taken up for consideration. Since in this case the
tenament size itself is more than the area of 20.9 sq. mtrs, proposal seeking
relaxation qua payment of premium for area of staircase in respect of area
existing 20.90 sq. mtrs per tenament cannot be considered in view of
express provisions of Regulation 33(10) read with Clauses 1.1 and 1.2 of
bdp
wp-1699.16(j).doc
Appendix IV.
55. It is submitted that minimum carpet area is not defined under the
provisions of Regulation 33(5) of D. C. Regulations i.e. redevelopment of
existing building on land owned by MHADA. On the other hand the same is
variably fixed by Government for EWS/LIG/MIG on land belonging to
MHADA. The limit of carpet area is extended upto 80 sq. mtrs. The
tenament under rehabilitation of slum improvement are of unique size and
category. The condition of the slums prior to redevelopment under
Regulation 33(10) was totally different. The occupants stay in bad clusters
with inadequate facility or natural light of ventilation. There is lack of
sanitation facility.
56. It is submitted by the learned senior counsel that the redevelopment
under existing housing scheme under Section 33(5) are on an entirely
different footing and do not have any of the features as in case of slum
redevelopment. They have adequate light and ventilation facility and
adequate sanitary facility. The redevelopment of MHADA is mainly for
utilization of full plot potential and commercial gain of the developers. The
additional FSI benefit cannot be given by Regulation 33 (5) by involving a
beneficiary development who sells free sale tenament in open market. In
contrast Regulation 33 (10) seeks to provide incentive to the willingly
participating partner who shoulders the responsibility of developing the
slums by deploying his own funds and recovering the same from sale of sale
components in open market. The basis for not charging the premium for
bdp
wp-1699.16(j).doc
area of staircase, staircase lobby, lift, lift lobby and passages thereto is on the
rational of minimum carpet area defined and benefits received.
57. It is submitted by the learned Senior Counsel that the rational for
exemption of staircase, staircase lobby, lift, lift lobby and passages thereto
being on the basis of minimum based carpet area provided under Regulation
33 (10) of the D. C. Regulation, 1991 for Slum Rehabilitation Scheme such
rational cannot be applied to the scheme of redevelopment of existing
building situated on the land owned by MHADA dealt under Regulation 33
(5) of D.C. Regulation, 1991. The provisions of Regulation 33 (5) (iv) do
not permit the exemption of the area of staircase, staircase lobby, lift, lift
lobby and passages thereto without charging premium to the redevelopment
of building on the land owned by MHADA dealt with under Regulation 33
(5) of D.C. Regulation, 1991.
58. Learned senior counsel tendered copy of the compilation of various
provisions of D. C. Regulation, copy of the notifications dated 6th December,
2008, 8th October, 2013 for consideration of this Court. It is submitted by
the learned Senior Counsel that the additional FSI was permitted under the
said notifications only to the development/redevelopment of housing
schemes of MHADA under specific categories. There were more than 12
such categories. He submits that by the said notification dated 6 th December,
2008 the earlier provisions of Regulation 35 (5) in force then were
substituted. He submits that the said Regulation 33(5)(2) i.e. "for
redevelopment of existing housing scheme of MHADA undertaken by the
bdp
wp-1699.16(j).doc
MHADA departmentally or jointly with societies/occupiers or by housing
societies/occupiers of building or lessee of MHADA or by developers is not
applicable to the petitioners since the development is being carried out by
the petitioners-developers and not by MHADA.
59. Learned Senior Counsel placed reliance on the Government
Notification dated 8th October, 2013 and would submit that the Government
Notification dated 6th December, 2008 was substituted by the said
Government Notification dated 8th October, 2013. He submits that in view
of the said amendment, Regulation 33 (5) of D. C. Regulations in existence
prior to 8th October, 2013 does not apply to the developments other than the
developments prescribed in Regulation 33 (5) (5) (b) (i) and (ii). It is
submitted that since the project undertaken by the petitioners would not fall
under Regulation 33 (5) (5) (b) (i) or (ii), there is no question of granting any
relaxation prescribed under Clause (6) of Regulation 33 (5).
60. Learned Senior Counsel for respondent no.1 placed reliance on
paragraph 6 of the additional affidavit-in-reply filed by respondent no.2
(MHADA) on 5th January, 2021 and would submit that even according to
MHADA the redevelopment project by the petitioners is not for EWS/LIG/
MIG. It is submitted by the learned Senior Counsel that respondent no.2 is
admittedly the owner of the said land. Petitioner no.1-Society is a lessee of
respondent no.2 in respect of the said land and are the owners of the
structures thereon. When the petitioner no.1-Society applied for
development of the said plot for rehabilitation, it would develop the said land
bdp
wp-1699.16(j).doc
on its own terms. The petitioner no.2, who is developer, carrying out
construction is also of the choice of petitioner no.1. He submits that in
Regulation 33 (5) (5) (b) (iii) i.e. "for rehabilitation component of
redevelopment project" the words "construction of tenaments
EWS/MIG/LIG" are absent. The legislative intent is thus clear that the
relaxation from payment of premium for the fungible FSI admissible under
Regulation 35(4) is not available in case of rehabilitation component of a
redevelopment project.
61. The next submission of the learned senior counsel for respondent no.1
is that in case of redevelopment of the land in question, then original
character of the members belonging to EWS/LIG/MIG group is lost. Thus,
the redevelopment having being carried out on commercial basis, there is no
question of any relaxation of premium which could be availed of only when
construction of EWS/LIG/MIG tenament would have been carried out by
the MHADA on a vacant plot or if the redevelopment project was for
construction of EWS/LIG/MIG tenaments towards the share of MHADA.
The allotment of tenaments to the members of petitioner no.1 is not on the
basis of EWS/LIG/MIG but is on the basis of existing tenants/
occupants/holders of the tenaments. No new tenaments for EWS/LIG/MIG
are generated in the project.
62. Learned Senior Counsel made an attempt to distinguish the Judgment
of this Court in case of Wadhwa Estate and Developers (I) Pvt. Ltd. (supra)
on the ground that the issue before this Court in the said Judgment was
bdp
wp-1699.16(j).doc
regarding premium for open space deficiency. The issues raised in this
Petition were not raised by respondent no.1 in the said matter before the
Division Bench of this Court. He submits that in any event the Special
Leave Petition filed by respondent no.1 against the said Judgment is
admitted and is still pending before Hon'ble Supreme Court. The learned
Senior Counsel however agreed that the Judgment of this Court in the case
of Wadhwa Estate and Developers (I) Pvt. Ltd. (supra) is not stayed by the
Hon'ble Supreme Court but only an order passed by this Court is stayed.
63. In so far as the submission of the petitioners in respect of alleged
discrimination against the petitioners by respondent no.1 is concerned, it is
submitted by the learned Senior Counsel that even if any wrong advantage is
granted to any other developer by respondent no.1, that would not confer any
right on the petitioners to seek similar advantage. He submits that in any
event pursuant to internal discussion held on this issue on 20 th April, 2017,
respondent no.1 has taken a decision to review Worli case and also to levy
premium, if necessary.
64. In the supplementary written arguments submitted by the Municipal
Corporation, it is contended that since the redevelopment scheme which is
the subject matter of the present petition, is not a housing scheme for
construction of tenaments of EWS/LIG and MIG, the petitioners are not
entitled to the benefits contemplated under Clause 6 of Regulation 33(5) of
D.C. Regulations, 1991 which benefits are specifically meant for housing
schemes for construction of tenaments under EWS/LIG and MIG. The
bdp
wp-1699.16(j).doc
reliance is placed on Clause 4 of Regulation 33(5) in support of the
submission that under the said clause, the carpet area of EWS/LIG/MIG
tenaments shall be as determined by the Government from time to time. The
carpet area provided by the petitioners for EWS/LIG/MIG being more than
carpet area determined by the Government, such schemes cannot be
considered or treated as scheme for EWS/LIG and MIG as contemplated
under Regulation 33(5).
65. It is contended that the Circular dated 5 th January, 2008 relied upon by
the petitioners to contend that the permissible carpet area for EWS/LIG
tenaments were 45.00 sq.mtrs., was issued prior to the amendment of the
Regulation 33(5) and also prior to the Government circular dated 26 th
August, 2009. The said Circular dated 5 th February, 2008 thus would have
no application in the present case. In the alternate submissions, it is
contended that even the said Circular dated 5th February, 2008 contemplates
that the carpet area of 45 sq.mtrs. permissible for EWS/LIG tenaments
would be including the balcony. The submission of the petitioners that the
balcony is excluded from such carpet area is contrary to the said Circular
dated 5th February, 2008.
66. The carpet area mentioned in paragraph 5.5 of the additional affidavit
filed by the petitioners are stated to be the total carpet area including
fungible FSI component. The petitioners however in the chart submitted
now purportedly seeks to set out the carpet area of the tenaments excluding
the fungible FSI component. The chart submitted by the petitioners is
bdp
wp-1699.16(j).doc
misleading in as much as the area of fungible FSI can never be separated
while determining the carpet area of the tenaments as sought to be canvassed
by the petitioners.
67. It is contended that prior to the amendment in D.C. Regulations in
2012, balconies, flower beds and niches were not included in the FSI
computation and many developers/builders were taking undue advantage of
such provision. By way of amendment to Regulation 35 and insertion of
Regulation 35(3) many such areas that were earlier free of FSI came to be
included in FSI computation. It was accordingly decided that the
compensatory FSI on payment of premium would be available as
specifically provided under Regulation 35(4). In the present case, the benefit
of fungible FSI is granted free of premium to the petitioners.
68. It is contended that the petitioners have taken benefit of Clause 5(b)
(iii) of Regulation 33(5) as amended on 8 th October, 2013 which itself shows
that the provisions which are applicable to the project of the petitioners
would be under Regulation 33(5) as amended vide notification dated 8 th
October, 2013. The petitioners cannot be allowed to pick and choose part of
the said provisions and contend that other part would not be applicable. The
reliance placed by the petitioners on the unamended provision is entirely
misconceived and untenable.
69. Reliance is also placed on the definition of the carpet area under
Clause 2(15) of D.C. Regulations, 1991 in support of the contention that the
bdp
wp-1699.16(j).doc
area of fungible FSI is not specifically excluded from floor space index
computation and is included in the carpet area as defined under D.C.
Regulations, 1991. It is contended that under Regulation 35(4) Clause (iii)
the fungible FSI is usable as regular FSI and thus the same is required to be
included while determining the carpet area. After amendment to Regulation
33(5) vide notification dated 6th December, 2008, the Government has fixed
the carpet area for tenaments of EWS/LIG and MIG vide notification dated
26th August, 2009. The contention of the petitioners that the carpet area for
EWS/LIG and MIG is exclusive of fungible FSI is entirely baseless and
misconceived. There is no provision either in the D.C. Regulations or any
notification of the Government that such fungible FSI is to be excluded
while calculating the carpet area.
70. The authority is not made known as to which tenaments are being
allotted to which category of persons and such verification has not been
carried out by any authority viz. MHADA or MCGM. The allotment of
rehab tenaments is entirely based on the private negotiations between the
developer and the society/members/occupiers and thus it is not possible to
ascertain as to which size of tenaments are being allotted to which category
of persons and whether such persons truly belong to such a category at all.
The allotment of tenaments is solely by virtue of persons being existing
occupants of buildings and is not based on the economic status of the
occupiers. The petitioners thus cannot be allowed to urge that the present
redevelopment project is a housing scheme for construction of tenaments
under EWS/LIG/MIG as required to avail benefits of Clause 6 of Regulation
bdp
wp-1699.16(j).doc
33(5).
71. It is contended that the area for EWS under the Government
notification dated 26th August, 2009 is restricted to 27.88 sq.mtrs. However,
minimum size of the tenaments in the buildings of the petitioners is 45.00
sq.mtrs. and thus on this ground also the project undertaken by the
petitioners cannot fall under Clause 4 of the Regulation 33(5) and cannot be
said to be a housing scheme for construction of tenaments under EWS/LIG/
MIG categories for obtaining benefit under Clause (6) of the Regulation
33(5) of Regulation 1991. The project of the petitioners comprises of
rehabilitation of existing occupants and also free sale component as
contemplated under Regulation 33(5) of D.C. Regulations, 1991 and is not a
housing scheme for construction of tenaments under EWS/LIG and MIG.
72. Insofar as the applicability of Regulation 35(2)(c) of the D.C.
Regulations is concerned, it is contended that Regulation 35(2)(c) has been
deleted vide notification dated 6th January, 2012 and replaced by Regulation
35(2)(iii) and Regulation 35(2)(iv). The concept of fungible FSI has been
introduced by the same notification. Since the petitioners have taken benefit
of fungible FSI in pursuance of the notification dated 6 th January, 2012, the
petitioners are estopped from contending that for the purpose of premium,
Regulation 35(2)(c) would be applicable which has been deleted vide the
said notification dated 6th January,2012. The premium is levied under
Regulation 35(2)(iv) which empowers the Municipal Corporation to levy the
premium for exclusion of areas covered by staircase, lift wells including
bdp
wp-1699.16(j).doc
lobbies from FSI and the case of the petitioners is squarely covered under
Regulation 35(2)(iv).
73. Without prejudice to the aforesaid submissions, it is submitted that
even under the earlier Regulation 35(2)(c), the Corporation was charging
premium for exclusion of the areas covered by staircase, lift wells including
lobbies with special permission of the Commissioner. The source of power
for levy of such premium is traceable to section 22(m) of the MRTP Act.
74. Learned senior counsel placed reliance on the judgment of this court
delivered on 10th June, 2010 in case of Buildarch, Mumbai and another vs.
Municipal Corporation of Greater Mumbai and others, 2010(5) Mh.L.J.
327 holding that in absence of any express provision in the Act or
Regulations, the Municipal Corporation did not have the power to levy or
collect premium under Regulation 35(2)(c) of the D.C. Regulations, 1991.
With a view to remove the basis of the said judgment, the State Government
enacted the Maharashtra Regional and Town Planning Act (Amendment and
Validation) Act, 2010 on 21st September, 2010. Section 22(m) of the MRTP
Act was amended partly with retrospective effect from 11 th January, 1967
thereby not only giving power to charge premium for grant of special
permission but also validating the levy and collection of such charges prior
to the date of the commencement of the amending Act. Clause 6.21 of
Appendix IV under Regulation 33(10) has been modified by notification
dated 15th October, 2003.
bdp
wp-1699.16(j).doc
75. It is contended that the said provision has been introduced for the first
time in 1996 and retained in 2003 which shows that the Corporation has
been charging premium since prior to 1996 for exemption under Regulation
35(2)(c). The submission of the petitioners that the Corporation has no
authority to charge premium is contrary to section 22(m) of the MRTP Act
read with Regulation 35(2)(c) of the D.C. Regulations. It is contended that
in any event, the petitioners are taking the benefit of Regulation 35(4)
introduced vide notification dated 6th January, 2012 and thus cannot be
allowed to contend that the amendment to Regulation 35(2) would not apply
to the petitioners.
76. Mr. Prakash Lad, learned counsel for the respondent no.2 (MHADA)
states that he adopts the submissions made by Mr.Sakhare, learned senior
counsel for the respondent no.1 and made additional submissions. He
submits that MHADA is the owner of the said land. He submits that on
23rd May, 2018, his client has been authorized to execute the powers of
Planning Authority in respect of the land owned by the respondent no.2. In
respect of the said land which is the subject matter of this petition, the
respondent no.2 is thus notified as Planning Authority.
77. It is submitted by the learned counsel that the development/
redevelopment is permissible under Regulation 33(5) of the D.C.
Regulations in two cases. D. C. Regulations 33(5)(1) is applicable for the
new housing scheme implemented by MHADA on MHADA's own land
for EWS, LIG and MIG category. The second instance of development
bdp
wp-1699.16(j).doc
under DCR 33(5) is that the redevelopment of the existing scheme of
MHADA undertaken by the MHADA department and jointly with society
and Applicant. As the development is undertaken by the petitioners on the
land owned by MHADA, the request of the petitioners cannot be
considered for exemption from payment of premium. The development
undertaken by the petitioners falls under DCR 33(5)(2) i.e. the
redevelopment on the existing housing scheme framed and executed by
the MHADA. The petitioners can claim benefit of incentive FSI and
fungible compensatory area. The respondent no.2 had granted lease of
land in favour of the petitioner no.1 society and after completion of the
development, conveyed the buildings to the petitioner no.1 society. The
development of the petitioners is in the capacity of lessee of the land and
owner of the building. Reconstruction is undertaken by the petitioners which
is not for EWS, LIG and MIG category. It is combined redevelopment for
rehousing the members of the society who were entitled for the schemes
framed by the respondent no.2 for EWS, LIG and MIG.
78. It is submitted by the learned counsel that the area of EWS, LIG and
MIG tenament has been described as per Government Resolution dated 11 th
August 2009 as EWS-27.80 sq.meter, LIG-45 sq.meter and MIG-80
sq.meter. In the present development, the entitlement of the petitioner no.1
society is for EWS-45 sq.meters and for LIG-52 sq.meters. The petitioner
had not submitted any plan for development for MIG buildings. The
development undertaken by the developer is for EWS, LIG category and
it is not as per the Government Resolution dated 11th August 2009.
bdp
wp-1699.16(j).doc
79. Learned counsel for the respondent no.2 submits that the petitioners
had applied for amendment for plan on 16 th April 2016 and thus the D.C.
regulations prevailing on the said date would apply. He submits that the
notification dated 8th October 2013 will be applicable to the application for
relaxation of premium made by the petitioners which has already substituted
the Government Resolution dated 6th December 2008.
80. Learned counsel for the respondent no.2 invited our attention to the
averments made by the petitioners in paragraphs 5.3 and 5.5 of the
additional affidavit dated 5th January 2020 filed by the petitioner no.2 and
would submit that admittedly the area of tenaments offered by the
petitioners in case of EWS and LIG tenaments is more than the maximum
carpet area prescribed under the Government Resolution dated 26 th August
2009. He submits that even if the area of fungible FSI is considered while
computing the area mentioned in paragraph 5.5 i.e. 53.39 sq.mtrs. in case
of LIG big tenaments, 45 sq.mtrs. for LIG small tenaments, in case of 296
EWS tenaments admeasuring 45 sq.mtrs. each which would be much
more than maximum carpet area of the tenaments prescribed under
Government Resolution dated 26th August 2009.
81. Learned counsel for the respondent no.2 invited our attention to the
averments made by the petitioners in paragraph 3(c) of the Writ Petition
and would submit that the petitioners had also proposed to construct built up
area for commercial exploitation. He invited our attention to the averments
bdp
wp-1699.16(j).doc
made by the petitioner in the additional affidavit dated 6 th January 2021
and would submit that there is no prohibition for sale of tenaments under
Regulation 33(5) prescribed in Government Resolution dated 26 th August
2009.
82. It is submitted by the learned counsel for the respondent no.2 that in
view of the petitioners offering larger area than the actual area of various
tenaments in possession of the tenants/occupants/holders in the building
constructed by MHADA, the status of those tenants/ occupants/holders as
EWS/LIG/MIG has changed. The original status as EWS/LIG MIG is lost.
The relaxation from payment of premium which could be available only if
the tenaments would have been constructed by MHADA itself from open
plot for EWS/LIG/MIG could not be claimed by the petitioners exploiting
the said land for commercial purposes.
83. Dr. Milind Sathe, learned senior counsel for the petitioners in
rejoinder strongly placed reliance on NOC dated 1 st July 2014 issued by
MHADA and more particularly the subject, paragraph 1 which refers to
the NOC as per the Housing Policy laid down by MHADA vide MHADA
Resolution Nos.6260 dated 4th June, 2007, A.R. No.6397 dated 5 th June
2009 and A.R. No.6422 dated 7th August 2009. He submits that under
the said NOC and more particularly in Clause 35 it was clarified that 60%
of total build up areas should be in the form of EWS/LIG/MIG. He relied
upon the last paragraph at the end of Clause 40 of the said NOC and would
submit that project undertaken by the petitioners was specifically governed
bdp
wp-1699.16(j).doc
by the Government Resolution dated 6th July 2008 and was eligible to get
2.5 FSI.
84. Learned senior counsel invited our attention to the notification dated
6th December 2008 and more particularly the recitals in Clauses 1, 2, 4, 6
& 7. He submits that under Regulation 33(5) of the said notification dated
6th December 2008, the redevelopment of existing housing schemes of
MHADA was permissible by the MHADA (i) departmentally or (ii) jointly
with societies/occupiers of buildings or (iii) by housing societies/occupiers
of building or (iv) by lessees of MHADA or (v) by the developer. Total
permissible FSI prescribed was 2.5 in the manner set out in Clause (a) and
(b) of Regulation 33(5)(2). He submits that under Clause (c) of Regulation
33(5)(2), the petitioners have paid premium to the respondent no.2 in
respect of difference between 2.5 FSI and the FSI required for rehab +
incentive in the ratio prescribed therein. The tenaments constructed under
Regulation 33(5) is for redevelopment of the existing housing scheme of
MHADA for EWS, LIG and MIG of the MHADA having at least 60%
built up area in the form of tenaments under EWS, LIG and MIG
categories. The carpet area for EWS, LIG & MIG tenaments has been
determined by the Government from time to time.
85. Learned Senior Counsel strongly placed reliance on Clause 6 of
Regulation 33 (5) in support of the submission that the petitioners were
clearly eligible for relaxation from payment of premium as was available
to redevelopment under Regulation 33 (10). Till 2008, the only MHADA
bdp
wp-1699.16(j).doc
could construct their project. By virtue of the said notification dated 6 th
December 2008, redevelopment of existing housing schemes of MHADA
was permissible by the MHADA (i) departmentally or (ii) jointly with
societies/occupiers of buildings or (iii) by housing societies/occupiers of
building or (iv) by lessees of MHADA or (v) by the developer. Whether
such development is permissible by MHADA by departmentally or by
others as set out in Regulation 33(5)(2), FSI of 2.5 remains the same.
86. Learned senior counsel strongly placed reliance on the Maharashtra
State Housing Policy framed by the Government of Maharashtra, Housing
Department dated 23rd July 2007. He relied upon the Foreword, Preamble,
Clauses 2, 3.2, 20 and 21 of the said policy. He submits that it is clear
from the said policy that there is acute shortage of accommodation. The first
ever Draft State Housing Policy was published on 1 st November, 2006
which made an effort to address the issue of providing affordable housing
for the EWS, LIG and MIG. The said policy recommended various
schemes, redevelopment of old MHADA buildings etc. The preamble
prescribes that Housing implies not only construction of bricks and
mortar; it would include the supporting infrastructure, access to transport
and employment opportunities. Housing in urban areas assumes much
greater significance as it relates not only to basic shelter needs but also
provides a facility to the citizens, to access services and be part of the
development process.
87. It is submitted that objectives of the housing policy are to facilitate
bdp
wp-1699.16(j).doc
affordable housing in urban and rural areas, create adequate housing stock
for LIG, EWS and shelters for the poorest of the poor on ownership or
rental basis. The said policy also recommends availability of land, property
value index based Transfer of Development Rights for LIG/MIG in
identified zones in Metropolitan Region. He strongly placed reliance on
Clause 7.4 of the said policy. He submits that in the said policy,
Government of Maharashtra also noticed the problem of old and
dilapidated buildings particularly in the island city of Mumbai as a major
concern. It was provided that unless reconstruction of old and dilapidated
building is undertaken on a warfooting, disaster is inevitable in every
monsoon. Redevelopment of these buildings will provide better houses to
the tenants, provide them ownership rights and also create additional
housing stock.
88. Learned senior counsel placed reliance on Clause 20 of the said
Housing Policy and would submit that it was proposed to allow
redevelopment of such MHADA colonies all over Maharashtra State by
providing higher FSI and to revise the ceiling of 30 sq.mtrs. for LIG
tenaments which would enable the present occupants to have better
accommodation as well as additional housing stock. Under the present
D.C. Regulations of 33(5), if the MHADA colony has more than 60% LIG
tenaments then 20% extra FSI and permission to load TDR is available.
He submits that this Housing Policy framed by the Maharashtra State is
translated into the said Government Notification dated 6 th December 2008.
He submits that even in the said notification dated 6 th December 2008,
bdp
wp-1699.16(j).doc
there was reference made to the said Housing Policy in the recitals.
89. It is submitted by the learned senior counsel that the petitioners are
obliged to provide the existing tenants/occupants/holders various tenaments
earlier constructed by MHADA of larger size but as described in the NOC
and also in the Government Resolution passed by the State of Maharashtra
free of cost. The petitioners have not been paid any consideration for
providing accommodation to the existing tenants/occupants/holders by
MHADA. On the the other hand the Petitioners are required to spend the
entire construction cost out of its own pocket and also required to pay
premium to MHADA as per Government Notifications. The scheme under
Regulation 33(5) of the D. C. Regulations is self financing scheme by
which the petitioners were allowed to construct additional tenaments by way
of sale component and to sell those additional tenaments to the customers in
open market.
90. It is submitted that the cost of construction on tenaments to be
constructed for EWS/LIG/MIG by the petitioners was to be recovered out of
the proceeds of sale of sale component tenaments. He submits that under
the relevant Government Resolutions as well as the notifications issued by
the Government, no relaxation from payment of premium is available in
respect of sale components nor the petitioners have made any such claim
in this case. The carpet area to be allotted to these
tenants/occupants/holders has been decided by the State of Maharashtra
from time to time. The existing EWS/LIG/MIG stands continued under the
bdp
wp-1699.16(j).doc
scheme availed off by the petitioners. There is no question of change of
status of the then EWS/LIG/MIG as sought to be contended by the learned
counsel for the respondents across the bar.
91. In so far as the Government Notification dated 8 th October 2013
strongly relied upon by the learned counsel for the respondents is
concerned, learned senior counsel for the petitioners invited our attention to
Clause 9 of the said Government Notification and would submit that the
respondents have deliberately not invited attention of this Court to the said
clause. He submits that the said clause makes it clear that redevelopment
proposals where NOC has been issued by Mumbai Board or Offer Letter
has already been issued prior to the date of coming into force of that
modification and which is valid as on the appointed date, shall continue to
be governed by the Regulation applicable prior to this modification. He
submits that admittedly the Letters of Offer have been issued by MHADA
from time to time during the period between 26 th September 2007 and 1st
December 2010. The project undertaken by the petitioners under
Regulation 33(5) would be thus governed not by the said notification dated
8th October 2013 but the notification dated 6th December 2008.
92. It is submitted by the learned senior counsel that admittedly FSI of
3.0 available under the said Government Resolution dated 8 th October 2013
is not made available to the petitioners by MHADA. The FSI of 2.5
continues to apply to the petitioners under the said Government Notification
dated 6th December 2008. The petitioners have however, availed of the
bdp
wp-1699.16(j).doc
fungible FSI made permissible under the Notification dated 6 th January
2012.
93. It is submitted by the learned senior counsel that even if the terms
and conditions under the said Government Resolution dated 8 th October
2013 are made applicable, Clause 6 of Regulation 33 (5) of the Government
Notification clearly provides that notwithstanding anything contained in
these Regulations, the relaxation incorporated in Regulation 33 (1) of these
Regulations shall apply to the Housing Schemes under this Regulation for
construction of tenaments under EWS/LIG and MIG categories. He also
referred to Regulation 33(5)(5)(b)(iii) and would submit that the said
clause will have to be read with Regulation 33(5)(2) which provides that no
premium shall be charged for the fungible FSI admissible as per DCR 35(4)
for rehabilitation of component of redevelopment project. He submits that in
no circumstances, the respondents could refuse the said relaxation from
payment of premium to the petitioners.
94. Learned senior counsel invited our attention to the Government
Notification dated 6th January 2012 and in particular amendment to D.C.
Regulation 33(5) and would submit that Municipal Commissioner is
empowered to permit fungible compensatory FSI, notwithstanding anything
contained in the D.C. Regulations 32, 33 & 34 at a particular percentage by
charging premium subject to the proviso that redevelopment under D. C.
Regulations 33(5) and redevelopment proposal of existing buildings in
suburbs and extended suburbs by availing TDR, the fungible
bdp
wp-1699.16(j).doc
compensatory FSI admissible on FSI consumed in existing structure shall
be granted without charging premium.
95. It is submitted by the learned senior counsel that Sub-Regulation (5)
was required to be added to Regulation 33(5) while issuing Government
Notification dated 8th October 2013 in view of the fungible FSI which was
made available by virtue of Government Notification dated 6 th January
2012. The scheme for redevelopment which was available under the
Government Notification dated 6th December 2008 continues to be made
available till today in view of the Letters of Offer already having been
issued by MHADA much prior to issuance of Government Resolution
dated 8th October 2013 and the terms and conditions set out in the said
Government Resolution dated 6th December 2008.
96. Learned senior counsel for the petitioners lastly invited our attention
to the impugned orders by the Municipal Commissioner and would submit
that in none of the impugned orders, the application for relaxation of
premium under Clause 6 of Regulation 33(5) read with Regulation 33(10)
has been rejected on the ground that proposal for redevelopment submitted
by the petitioners was not under Regulation 33(5) of the D.C. Regulations
nor on the ground that proposal for development submitted by the
petitioners was not under EWS/LIG/MIG in so far as the rehabilitation
component is concerned. The MHADA, in its affidavit and also across the
bar, has admitted that the proposal submitted by the petitioners was under
Regulation 33(5) of the D.C. Regulation.
bdp
wp-1699.16(j).doc
REASONS AND CONCLUSION :-
97. We have perused the records and have heard the learned senior
counsel for the petitioners, for the respondent no.1 and the learned counsel
for the respondent no.2 at length and have given our anxious consideration to
the rival submissions made by the learned counsel. The questions that arise
for consideration of this Court in this Writ Petition are (i) whether
application for relaxation filed by the petitioners fell under Regulation 33(5)
of the D.C. Regulations 1991 or fell under any other provision, (ii) Whether
notification dated 8th October, 2013 substituting notification dated 6 th
December, 2008 and all other notifications regarding Regulation 33(5) prior
to 8th October, 2013 would apply to the NOC granted by the respondent no.2
in favour of the petitioners in respect of the project in question or the
notification dated 6th December, 2008 would continue to apply to the
petitioners' project? (iii) whether the petitioners will be entitled to relaxation
incorporated in Regulations 33(10) of the D.C. Regulations irrespective of
the size of the tenaments under EWS/MIG constructed by the petitioners and
were more than 25 square meters and (iv) Even if notification dated 8 th
October, 2013 substituting then existing Regulation 33(5) of the D.C.
Regulations is applicable, whether petitioners are not entitled to relaxation in
payment of premium for the consumable FSI admissible as per Regulation
35(4) of the D.C. Regulations under Regulation 33(5)(5)(b)(iii) read with
Clause 6 of Regulation 33(5).
98. We shall first decide the issue whether application filed by the
bdp
wp-1699.16(j).doc
petitioners for seeking relaxation for payment of premium does not fall
under Regulation 33(5) as sought to be contended by the respondent no.1
across the bar.
99. A perusal of the order dated 22nd April, 2016 as well as order dated 4 th
February, 2017 passed by the Municipal Commissioner does not indicate that
the application for relaxation for payment of premium made by the
petitioners has been rejected on the ground that the application was not
under Regulation 33(5) of the D.C. Regulations. Though this Court
repeatedly called upon the learned senior counsel for the respondent no.1 to
state the provision under which the application for relaxation was made by
the petitioners, if according to the respondent no.1 the said application was
not under Regulation 33(5) of the D.C. Regulations, the learned senior
counsel could not point out any other provision under which the said
application seeking exemption/relaxation from payment of premium on area
of staircase, lift, life lobby and passages free of FSI without charging
premium would fall.
100. Insofar as the respondent no.2 is concerned, the respondent no.2 in its
additional affidavit in reply dated 1st January, 2021 and in particular
paragraphs 4 and 5 had admitted that the development is undertaken by the
petitioner no.1-society under Regulation 33(5)(2) of the D.C. Regulations
i.e. the redevelopment on the existing housing scheme framed and executed
by the MHADA. Mr. Lad, learned counsel for the respondent no.2 during the
course of his argument also stated that the application for
bdp
wp-1699.16(j).doc
exemption/relaxation made by the petitioners was in respect of the
redevelopment undertaken under the Regulation 33(5)(2) of the D.C.
Regulations. A perusal of the documents annexed to the petition and reply
clearly indicates that the project undertaken by the petitioners is under
Regulation 33(5) of D.C. Regulations. There is, thus, no substance in the
submission made by Mr. Sakhare, learned senior counsel for the respondent
no.1 that the application made by the petitioners for relaxation would not fall
under Clause 6 of the Regulation 33(5) or that the project undertaken by the
petitioners did not fall under Regulation 33(5) of the D.C. Regulations.
101. We shall now decide the issue whether notification dated 8 th October,
2013 substituting notification dated 6th December, 2008 and all other
notifications regarding Regulation 33(5) prior to 8 th October, 2013 would
apply to the NOC granted by the respondent no.2 in favour of the petitioners
in respect of the project in question or the petitioners would be governed by
the notification dated 6th December, 2008.
102. A perusal of the NOC dated 1st July, 2014 read with various Letters of
Offer issued by the respondent no.2 clearly indicates that it was made clear
that the proposal made by the petitioners should be considered for 2.5 FSI
and all the directives given in the Government Resolution of U.D.D. vide
No.TPB/4308/74/C.No.11/2008/UD-11 dated 6th December, 2008 shall be
applicable to the petitioners.
103. A perusal of the notification dated 8th October, 2013 on which reliance
bdp
wp-1699.16(j).doc
is placed by the respondent nos. 1 and 2 by which the then existing
Regulation 33(5) of the D.C. Regulations has been substituted and more
particularly Clause 9 clearly indicates that the redevelopment proposal where
NOC has been issued by the Mumbai Board or Letters of Offer has already
been issued prior to the date of the modification, the said modification
carried out by notification dated 8th October, 2013, offer letters and NOC
valid on the appointed date, shall be continued to be governed by the
Regulation applicable prior to the said modification. It is not in dispute that
the Letters of Offer issued by the respondent no.2 in favour of the petitioners
were issued prior to the appointed date i.e. 8th October, 2013.
104. In our view, in view of the clarification issued in paragraph 9 of the
said notification dated 8th October, 2013 and in view of the fact that all the
Letters of Offer were already issued prior to the date of coming into force of
the said notification, the rights and obligation of the petitioners would be
governed by the Regulations applicable prior to 8th October, 2013 then in
force. Reliance thus placed by the learned senior counsel for the respondent
no.1 and by Mr. Lad, learned counsel for the respondent no.2 on various
Sub-Regulations 33(5) under the said notification dated 8th October, 2013 for
the purpose of denying the relaxation to the petitioners for payment of
premium is totally misplaced.
105. There is also no substance in the submission made by the learned
counsel for the respondents that since the application for amendment of the
sanction plan was made by the petitioners on 16 th April, 2016, the
bdp
wp-1699.16(j).doc
notification dated 6th December, 2008 would not apply to the project
undertaken by the petitioners but notification dated 8 th October, 2013 would
be applicable to such project. It is not the case of the respondents that the
petitioners have been given 3 FSI permissible under the said notification
dated 8th October, 2013. This submission of the learned counsel for the
respondents is ex-facie contrary to Regulation 33(5)(a) introduced by
notification dated 8th October, 2013.
106. Regulation 33(5) (2), (a), (b) and (c), (4), (6) and (7) of the
Government notification dated 6th December, 2008 are extracted as
under :-
2) For redevelopment of existing housing schemes of MHADA,
undertaken by the MHADA departmentally or jointly with
societies/occupiers of buildings or by housing societies/occupiers of
building or by lessees of MHADA or by the developer, the FSI shall
be as under :-
a) Total permissible FSI shall be 2.5 on gross plot area.
b) The incentive FSI admissible against the FSI required for
rehab shall be as under:-
(i) In Island City, for the area upto 4000 sq.mt. the incentive
FSI admissible will be 50%.
(ii) In Island City, for the area above 4000 sq.mt. the
incentive FSI admissible will be 60%.
(iii) In suburban area, for the area upto 4000 sq.mt. the
incentive FSI admissible will be 60%.
(iv) In suburban area, for the area above 4000 sq.mt. the
incentive FSI will be 75%.
c) In the redevelopment scheme either (i) difference between 2.5
FSI and the FSI required for rehab + incentive shall be shared
between MHADA and Society/Developer in the ratio of 2:1 or
(ii) for additional built up area over and above the permissible
FSI as per DCR 32, MHADA shall charge premium at the rate
decided by Govt. in Housing Department from time to time.
4) For the purpose of this Regulation the carpet area for EWS,
LIG or MIG tenament shall be as determined by the Government
from time to time.
6) Notwithstanding anything contained in these regulations, the
bdp
wp-1699.16(j).doc
relaxation incorporated in Regulations No.33(1) of these regulations
shall apply for Housing Schemes under the regulation for tenaments
under EWS/LIG and MIG categories. However, the front open space
shall not be less than 3.6 mt.
7) In any Redevelopment scheme where the Co-operative Housing
Society/Developer appointed by the Co-operative Housing Society
has obtained No Objection Certificate from the MHADA/ Mumbai
Board thereby sanctioning additional balance FSI with a consent of
70% of its members and where such NOC holder has made provision
for alternative accommodation in the proposed building (including
transit accommodation) then it shall be obligatory for all the
occupiers/members of participate in the Redevelopment Scheme and
vacate the existing tenament for the purpose of redevelopment, in
case of failure to vacate the existing tenaments, the provisions of
Section 95A of the MHAD Act mutatis mutandis shall apply for the
purpose of getting the tenaments vacated from the non co-operative
members.
107. Regulation 33(5)(2)(2.1)(A)(5)(6) and (9) read with Regulation
33(5) substituting the then existing Regulation introduced by
notification dated 8th October, 2013 are extracted as under :-
2) For redevelopment of existing housing schemes of MHADA,
containing (I) EWS/LIG and/or (ii) MIG and/or (iii) HIG houses with
carpet area less than the maximum carpet area prescribed for MIG,
the total permissible FSI shall be 3.0 on the gross plot area (exclusive
of the Fungible FSI).
2.1) Where redevelopment of buildings in existing housing schemes
of MHADA is undertaken by the housing co-operative societies or the
occupiers of such buildings or by the lessees of MHADA, the
Rehabilitation Area Entitlement, Incentive FSI and sharing of
balance FSI shall be as follows:-
A) Rehabilitation Area Entitlement:
i) Under redevelopment of buildings in existing Housing Schemes
of MHADA, the entitlement of rehabilitation area for an
existing residential tenament shall be equal to sum total of-
(a) a basic entitlement equivalent to the carpet area of the
existing tenament plus 35% thereof, subject to a
minimum carpet area of 300 sq. ft, and
(b) an additional entitlement, governed by the size of the
plot under redevelopment, in accordance with the
bdp
wp-1699.16(j).doc
Table-A below:-
TABLE A
Area of the Plot under Additional Entitlement (As % of the
Redevelopment Carpet Area of the Existing
tenament )
Upto 4000 sq. m. Nil
Above 4000 sq.m to 2 hect. 15%
Above 2 hect. To 5 hect. 25%
Above 5 hect. To 10 hect. 35%
Explanation : The plot under redevelopment, means the
land demarcated by MHADA for redevelopment.
Provided that the maximum entitlement of rehabilitation
area shall in no case exceed the maximum limit of
carpet area prescribed for MIG category by the Govt.
as applicable on the date of approval of the
redevelopment project.
Provided further that the entitlement of rehabilitation
area as admissible under this regulation shall be
exclusive of the area of balcony.
ii) Under redevelopment of buildings in existing Housing
Schemes of MHADA, the entitlement of rehabilitation
area of any existing commercial/amenity unit in the
Residential Housing Scheme shall be equal to the
carpet area of the existing unit plus 20% thereof.
4) For the purpose of this Regulation, the carpet areas for EWS,
LIG or MIG tenaments shall be as determined by the Government
from time to time.
5) a) For providing the requisite infrastructure' for the increased
population, an infrastructure charge at the rate of 7% of the Land
Rate as per the ASR of the year of approval of the redevelopment
project shall be chargeable for the extra FSI (excluding the fungible
FSI) granted over and above the normal FSI for the redevelopment
schemes. 6/7th part of the Infrastructure Charge levied and collected
by MHADA shall be transferred to the Municipal Corporation of
Greater Mumbai for developing necessary off site infrastructure.
b) No premium shall be charged for the fungible FSI admissible
as per DCR 35(4) for
bdp
wp-1699.16(j).doc
(i) construction of EWS/LIG and MIG tenaments by MHADA
on a vacant plot or
(ii) in a redevelopment project for the construction of
EWS/LIG and MIG tenaments towards the share of
MHADA, or
(iii) for rehabilitation component of a redevelopment project.
6) Notwithstanding anything contained in these Regulations, the
relaxation incorporated in Regulation No. 33(10 of these Regulations
shall apply to the Housing Schemes under this Regulation for
construction of tenaments under EWS/LIG and MIG categories.
However, the front open space shall not be less than 3.6 mt.
9) The Redevelopment proposals where NOC has been issued by
Mumbai Board or Offer Letter has already been issued prior to the
date of coming into force of this modification (hereinafter referred to
as the "appointed date") and which is valid as on the appointed date,
shall continue to be governed by the Regulation applicable prior to
this modification.
108. Regulation 35 (4) introduced by notification dated 6th January,
2012 with provisos and explanatory note are extracted as under :-
Compensatory Floor Space Index (FSI) :-
Notwithstanding anything contained in the D.C. Regulations
32, 33 & 34, the Commissioner may, by special permission, permit
fungible compensatory Floor Space Index, not exceeding 35% for
residential development and 20% for Industrial/Commercial
development, over and above admissible Floor Space Index, by
charging a premium at the rate of 60%, 80% and 100% of the Stamp
Duty Ready Recknor Rate, for Residential, Industrial and
Commercial development respectively.
Provided in case of redevelopment under regulation 33(7),
33(9) & 33(10) excluding clause no. 3.11 of Appendix-IV of
Development Control Regulation 1991, the fungible compensatory
F.S.I. admissible on rehabilitation component shall be granted
without charging premium.
Provided further that redevelopment under D.C. regulations
no. 33(5) and redevelopment proposal of existing buildings in
suburbs and extended suburbs by availing TDR, the fungible
compensatory F.S.I. admissible on F.S.I. consumed in existing
structure shall be granted without charging premium.
Provided further that such fungible compensatory FSI for
bdp
wp-1699.16(j).doc
rehabilitation component shall not be used for free sale component
and shall be used to give additional area over and above eligible
area to the existing tenants/occupants.
Provided, that this regulation shall be applicable in respect of
the buildings to be constructed or reconstructed only.
Explanatory Note :-
i) Where IOD/IOA has been granted but building is not completed,
this regulation shall apply only at the option of owner/developer.
ii) For plots/layouts, where IOD is granted for partial development,
this Regulation will apply for the balance potential of the plot,
iii) The fungible FSI is useable as regular FSI.
Provided, further, the development in Coastal Regulation Zone
(CRZ) areas shall be governed by the Ministry of Environment and
Forests Notification issued from time to time.
Note : The premium amount collected shall be kept in a separate
Account to be utilized for infrastructure development.
109. Relevant portion of Regulation 33(10) and Clauses 6.21 and 6.22
of Appendix IV of Development Control Regulation are extracted as
under :-
33(10) (I) Eligibility for redevelopment Scheme.-
[(a) For this purpose, a person eligible for redevelopment
scheme shall mean a protected occupier as defined in Chapter
I-B of Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment Act, 1971 and orders issued thereunder.]
(b) Subject to the foregoing provisions, only the actual
occupants of the hutments shall be held eligible, and the so
called structure-owner other than the actual occupant if any,
even if his name is shown in the electoral roll for the
structure, shall have no right whatsoever to the reconstructed
tenament against that structure.
6.21 Premium shall not be charged for exclusion of staircase and
lift-well etc. as covered under the provisions of DCR 35(2)(c).
6.22 All relaxation outlined hereinabove shall be given to the
rehabilitation component, and also to the composite buildings
bdp
wp-1699.16(j).doc
in the project Premium shall not be charged for all or any of
the relaxation given hereinabove, or for any other mentioned
in DCR 35(2)(c).
110. Be that as it may, even if the Regulation 33(5) of the D.C. Regulations
introduced by the notification dated 8th October, 2013 thereby substituting
existing Regulation 33 (5) is considered, Regulation 33(5) (2) indicates that
the said Regulation will apply to the redevelopment of the existing housing
scheme of MHADA containing (i) EWS/LIG and/or (ii) MIG and/or (iii)
HIG houses with carpet area less than the maximum carpet area prescribed
for MIG. In this case, we are concerned with the redevelopment of the
existing housing scheme of MHADA containing EWS/LIG. The respondent
no.2 in its affidavit in reply and during the course of the arguments admitted
that the project of the petitioners for redevelopment was under Regulation
33(5)(2).
111. A perusal of the said Regulation 33(5) (5) (b) introduced by
notification dated 8th October, 2013 indicates that no premium shall be
charged for the fungible FSI admissible as per D.C. Regulation 35(4) in three
situations i.e. (i) when MHADA itself raises construction of EWS/LIG and
MIG tenaments on a vacant plot, (ii) when the construction of EWS/LIG and
MIG tenaments are redevelopment project is carried out towards the share of
MHADA, (iii) for rehabilitation component of a redevelopment project.
Admittedly in this case MHADA has not carried out any construction for
EWS/LIG and/or MIG tenaments on vacant plot. The said clause thus would
not apply to the facts of this case.
bdp
wp-1699.16(j).doc
112. Similarly since the MHADA has taken premium from the petitioners
in respect of the shares of MHADA prescribed in Regulation 33(5) (2.1) and
no construction is being carried out by the petitioners of EWS/LIG and MIG
tenaments towards the share of MHADA, the said clause thus also would not
apply to the facts of this case. Be that as it may, even if notification dated 8 th
October, 2013 is considered, since the petitioners are allowed to carry out
redevelopment for rehabilitation on the basis of the existing housing scheme
of MHADA containing EWS/LIG and/or MIG, the case of the petitioners
would fall under Regulation 33(5) (5) (b) (iii). The respondents cannot be
allowed to contend that no premium would be charged only if the
construction of EWS/LIG and MIG tenaments is carried out by the MHADA
on a vacant plot or only if the construction of EWS/LIG and MIG tenaments
in redevelopment project is carried out towards the share of the MHADA
only.
113. In our view, the words no premium shall be charged for the fungible
FSI admissible as per D.C. Regulation 34 at the beginning of three clauses
setting out three situations in Regulation 33(5) (5) (b) (i) (ii) (iii) would
clearly indicate that the relaxation in payment of premium would apply to all
the three eventualities including on rehabilitation component of a
redevelopment project. Admittedly in this case, the petitioners have not
made claim for relaxation of payment of premium for the fungible FSI
admittedly as per D.C. Regulation 35(4) for carrying out the construction of
the tenament of free sale area component. In our view no provision
bdp
wp-1699.16(j).doc
prescribed in the Act can be rendered otiose and more particularly in this
case Regulation 33(5)(5)(b)(iii). Court has to read the provision as it is.
114. Be that as it may, Clause 6 of Regulation 33(5) begins with a non-
obstante clause which makes it clear beyond reasonable doubt that
notwithstanding anything contained in D.C. Regulations, the relaxation
incorporated in Regulation 33(10) of D.C. Regulations shall apply to the
housing schemes under Regulation 33(5) for construction of tenaments
under EWS/LIG and MIG categories. The respondents thus cannot be
allowed to read Regulation 33(5) (5)(b) (i) and (ii) only for the purpose of
relaxation of premium for the fungible FSI and to ignore Clause (3) thereof
which is also one of the eventualities prescribed under Regulation 33(5)(5)
(b) for the purpose of relaxation of premium.
115. A perusal of the impugned orders passed by the respondent no.1
would clearly indicate that in none of the orders, the application for
relaxation from payment of premium for the fungible FSI is rejected on the
ground that such relaxation cannot be permitted in view of the Regulation
33(5)(5)(b) (i) and (ii) prescribed by notification dated 8 th October, 2013. A
perusal of the order dated 22nd April, 2016 passed by the Deputy Chief
Engineer of the respondent no.1 clearly indicate that the claim for relaxation
for payment of premium is rejected on the ground that there is no provision
in Regulation 35(2)(2)(iv) for the case of the reconstruction dealt with under
Regulation 33(5) of the D.C. Regulations, 1991 or any other provision of the
modified D.C. Regulations 1991 in force. In our view, even otherwise in
bdp
wp-1699.16(j).doc
view of Clause 6 Regulation 33(5), reliance placed by the Deputy Chief
Engineer on Regulation 35(2)(4) in the order dated 22nd April, 2016 is
misplaced.
116. We shall now deal with the other issues formulated in paragraphs
97(iii) and (iv). Insofar as the impugned order passed by the Municipal
Commissioner on 4th February, 2017 is concerned, a perusal of the said
order also would clearly indicate that the claim of the relaxation from the
payment of premium made by the petitioners is rejected only on the ground
that the provision of Regulation 33(10), Clauses 6.21 and 6.22 thereby
allowing the concessions for area of staircase, lift etc. without charging
premium is applicable only in case if it follows provisions 1.2 of Appendix
IV to D.C. Regulation 33(10) and not on any other ground. In our view the
said finding of the Municipal Commissioner is ex-facie contrary to Clause
(6) of Regulation 33(5)(6) and more particularly in view of the non-obstante
clause under Clause (6) of Regulation 33(5).
117. In our view, even if the area of the tenament constructed by the
petitioners under EWS/LIG and MIG schemes for rehabilitation thereof is
more than 25 sq.mtrs, that would not disentitle the petitioners from claiming
relaxation in payment of premium of fungible FSI. The Municipal
Commissioner has not rejected the claims made by the petitioners on the
ground that the claim for relaxation made by the petitioners was not under
Regulation 33(5) or that Clause 6 of the Regulation 33(5) was not applicable
to the project undertaken by the petitioners. The entire argument advanced
bdp
wp-1699.16(j).doc
by the learned senior counsel for the respondent no.1 is totally contrary to
the reasons recorded by the Municipal Commissioner in the order dated 4 th
February, 2017 and by the Deputy Chief Engineer (Building Proposal) W.S.-
II dated 22nd April, 2016. The respondents cannot be allowed to supplant the
reasons for the first time in the affidavit in reply or during the course of the
arguments across the bar.
118. Be that as it may, even otherwise there is no substance in the
submission of the learned senior counsel for the respondent no.1 and by the
learned counsel for the respondent no.2 that in view of Regulation 33(5)(b)
(i), (ii) and (iii) introduced by the notification dated 8 th October, 2013, the
claim of the relaxation from the payment of premium on fungible FSI was
not maintainable in the eyes of law.
119. We have perused the relevant paragraphs of the Maharashtra State
Housing Policy framed by the Government of Maharashtra in the month of
July 2007. The foreword of the said policy itself indicates that in the first
draft, State Housing Policy published on 1st November, 2006, an effort was
made to address the issue of providing affordable housing for the
economically weaker section, low income group, middle income group. It
also emphasized the need for reforms and liberalization in the housing sector
as a major challenge. Instead of the role of provider, the State Government
will increasingly play the role as Facilitator and Enabler. It sets out an
ambitious objective of moving from acute shortage of accommodation
towards a surplus situation. That would be possible only if competition is
bdp
wp-1699.16(j).doc
allowed and encouraged. The objectives of the Housing Policy described
therein clearly indicate that the objectives was to facilitate affordable
housing in urban and rural areas, to create adequate housing stock for Lower
Income Group (LIG), Economically Weaker Section (EWS) and shelters for
the poorest of the poor on ownership or rental basis. The objectives of the
housing policy also is to deregulate housing sector and encourage
competition and public private partnerships in financing, construction and
maintenance of houses for LIG and weaker sections of the society. The land
was to be made available for efficient use of land through higher floor space
index (FSI) for low income group housing.
120. Paragraph (20) of the said policy clearly indicates that the
redevelopment of old MHADA colonies all over Maharashtra State has
become an important issue because in several colonies, optimal utilization of
land has not been done. More than 70% of these colonies were built for the
EWS and LIG categories. Over the decades, there has been growth in these
families both in terms of members and income. It provides that under the
present D.C. Regulation 33(5), if the MHADA colony has more than 60%
LIG tenaments, then 20% extra FSI and permission to load TDR is available.
However, the size of the tenament is restricted to 30 sq.mtrs. It is further
provided that there is no justification to expect the EWS/LIG families to stay
in tenaments smaller in size than 30 sq.mtrs. in perpetuity. It was thus
proposed to allow redevelopment of such colonies by providing higher FSI
and to revise the ceiling of 30 sq.mtrs. for LIG tenaments which would
enable the present occupants to have better accommodation as well as create
bdp
wp-1699.16(j).doc
additional housing stock.
121. Clause 21 of the said policy clearly provides that in every layout,
whether private or public, it would be mandatory to provide atleast 10% of
the layout for EWS/LIG tenaments and another 10% of the layout for MIG
tenaments. The size of the EWS/LIG tenaments shall not exceed 30 sq.mtrs.
and it should not exceed 50 sq.mtrs for MIG tenaments in such a composite
layout.
122. A perusal of the notification dated 6th December, 2008 clearly
indicates that the said housing policy was translated into the said notification
dated 6th December, 2008 providing for redevelopment of the existing
housing scheme of MHADA department with societies/occupiers of the
buildings or by lessee of MHADA or by the developer. It is not in dispute
that even in the NOC issued by the MHADA it was clearly provided that
60% of the total built up area should be in the form of EWS/LIG/MIG.
There is thus no substance in the submission made by the learned senior
counsel for the respondent no.1 and by the learned counsel for the
respondent no.2 that the project undertaken by the petitioners was not for
redevelopment of the scheme under EWS/LIG or MIG. The submission
made by the learned counsel for the respondents are ex-facie contrary to the
conditions of NOC and Letters of Offer issued by the respondent no.2 and
various sanctioned also granted by the respondent no.1. Though no such
contentions have been raised by the respondents in their affidavit in reply nor
the applications for relaxation made by the petitioners was rejected on this
bdp
wp-1699.16(j).doc
ground by the Municipal Commissioner and also by the Deputy Chief
Engineer, this Court has considered these submissions made across the bar
by the respondents and responded by the petitioners.
123. In our view, merely because the respondent no.2 has permitted the
petitioners to carry out the construction of the free sale components also, that
would not disentitle the petitioners from claiming relaxation in payment of
premium on the fungible FSI utilized on rehabilitation of EWS/LIG and
MIG tenaments. The entitlement of relaxation from payment of premium on
fungible FSI is not taken away in view of Clause 6 of the Regulation 33(5)
(6) of D.C. Regulations even in these circumstances.
124. The Division Bench of this Court in case of Wadhwa Estate and
Developer (I) Pvt. Ltd. and Anr. (supra) has considered the case of demand
of premium for open space deficiency which was raised by the Municipal
Corporation of Greater Mumbai. This court has considered the provisions of
Regulations 33(5), 33(10) and Appendix IV appended and specifically
Clause 6.23 of Annexure 'A' thereof and also considered a clause similar to
Regulation 33(6) of the D.C. Regulations which provided that
notwithstanding anything contained in these Regulations incorporated under
Regulation 33(10), these Regulations shall apply to the housing schemes
under this Regulation for construction of the tenaments of EWS/LIG and
MIG categories. This Court held that by Regulation 33 of the D.C.
Regulations, the planning authority had decided to grant certain relaxations
to slum redevelopment schemes and schemes of MHADA that were meant
bdp
wp-1699.16(j).doc
for EWS / LIG and MIG tenaments at concessional premium and the very
object of regulation 33(5) and 33(10) stood frustrated by the issuance of the
so called circular dated 26th December 2013. The Municipal Corporation
had thereafter issued second circular on 16 th January, 2016 in pursuance of
the remarks of the Deputy Law Officer and on the advice of TAC on the
issue by referring to regulations 33(5), 33(10), Clauses 6.21, 6.22 and 6.23 in
Annexure A of Appendix IV.
125. This Court accordingly held that the action of the Corporation and its
authorities of directing the petitioners therein to pay 100 percent premium
was not only illegal and arbitrary but was also discriminatory. This Court
declared that the respondents therein would not be entitled to charge 100
percent premium for relaxation pertaining to open space deficiency under the
sub-clauses of Clause 6 in Annexure A of Appendix IV of regulation 33(10)
of the regulations and declared the notice of demand as illegal and bad in
law. This Court directed the respondent to compute the amount payable by
the petitioner therein towards 10 percent of the premium for availing the
relaxation pertaining to open space deficiency and after retaining the said
amount, refund the remaining/balance amount to the petitioner within eight
weeks from the date of the said judgment. Though the Hon'ble Supreme
Court has admitted the Special Leave Petition filed by the respondent no.1
against the said judgment of this Court in case of Wadhwa Estate and
Developer (I) Pvt. Ltd. and Anr. (supra), the said judgment has not been
stayed by the Hon'ble Supreme Court. In our view, the said judgment of this
Court interpreting the identical provisions applies to the facts of this case.
bdp
wp-1699.16(j).doc
Learned senior counsel for the respondent no.1 could not distinguish the said
judgment. We are respectfully bound by the said judgment.
126. In our view, the interpretation of the respondent no.1 while rejecting
the scheme for relaxation of premium made by the petitioner is ex-facie
untenable and contrary to the plain reading of Clause 6 of Regulation 33(5)
read with Regulation 33(10) and Clauses 6.21 and 6.22 of Appendix IV
appended thereto. Unless a specific provision for levy of premium under
any of the provisions of the Development Regulations is made, the
respondent no.1 could not have demanded any such premium from the
petitioners without authority of law and in violation of Article 265 of the
Constitution of India. On the other hand, since there was a specific
provision for relaxation in payment of premium as demanded by the
petitioners, the respondent no.1 could not have refused the said relaxation
by interpreting the said provision differently.
127. Supreme Court in case of Promoters & Builders Assn. Of Pune
(supra) has held that if the language of the Statute is plain and unambiguous,
it is a cardinal principle of construction of a Statute that the Court must give
effect to the words used in the statute and it would not be open to the Court
to adopt a hypothetical construction on the ground that such construction is
more consistent with the alleged object and the policy of the Act. The Court
has to always presume that the legislature inserted every part of a statute for
a purpose and the legislative intention is that every part of the statute should
have effect. In our view on a plain reading of the Housing Policy which was
bdp
wp-1699.16(j).doc
translated into the said notification dated 6 th December, 2008 issued by the
State of Maharashtra, it is clear that the MHADA having failed to carry out
their obligation to rehabilitate EWS/LIG or MIG categories as per Housing
Policy, such obligations of the MHADA are got fulfilled by public private
partnerships in financing, construction and maintenance of the houses for
lower income group and weaker section of the society by providing certain
incentives to the developers. MHADA has already collected premium from
the petitioners towards its share in additional tenaments.
128. The purpose and object under the Housing Policy was to eliminate
acute shortage of accommodation and to have a surplus stock by permitting
redevelopment of such tenaments. In our view, after collecting premium on
its share on additional tenaments, MHADA cannot be allowed to urge that
the status of those occupants as EWS/LIG and MIG stood changed and thus
the petitioners would not be eligible to any relaxation from payment of
premium. The entire object of providing such schemes by MHADA by
encouraging competition and public private partnerships in financing,
construction and maintenance of housing for LIG and weaker section of
society is attempted to be frustrated by the respondents by refusing to grant
relaxation as prayed. The developers are obliged to rehabilitate occupiers of
EWS/LIG/MIG on ownership basis by self financing by selling the sale
component tenaments.
129. None of the respondents disputed the fact that if those tenaments
would have been constructed by MHADA itself, no such premium could
bdp
wp-1699.16(j).doc
have been demanded by the respondent no.1 from MHADA. Even in the
said notification dated 8th October, 2013 strongly relied upon by the learned
counsel for the respondents, relaxation from payment of premium is allowed
also in case of rehabilitation component of a redevelopment project. The
legislative intent is clear that to the extent of the rehabilitation component in
a redevelopment project also, such premium is relaxed as prayed even under
the said Government Resolution dated 8th October, 2013.
130. A perusal of various schemes prescribed under the Development
Control Regulations thereby granting relaxation in payment of premium
clearly demonstrates a common object that the existing occupants or tenants
have to be rehabilitated under those schemes so as to implement and achieve
the object under the housing policy framed by the State of Maharashtra. The
object of rehabilitating such occupants under different schemes including for
rehabilitation of EWS/LIG and MIG is common. The respondents thus
cannot be allowed to reject the claim for relaxation from the payment of
premium overlooking the purpose, object and intent of declaring such
Housing Policy which was translated into the Government notification dated
6th December, 2008.
131. There is no substance in the submission of Mr.Sakhare, learned senior
counsel for the respondent no.1 that the petitioners are not entitled to seek
any benefit of Clause 6 of Regulation 33(5) on the ground that the present
project was not the housing scheme of construction of tenaments under
EWS/LIG and MIG categories. In our view, this submission of the learned
bdp
wp-1699.16(j).doc
senior counsel is ex-facie contrary to the Letters of Offer issued from time to
time and also the NOC by MHADA. The submission of the learned senior
counsel that the present development does not involve the construction of
tenaments of EWS/LIG and MIG categories and was only for the
rehabilitation of existing occupants is also devoid of merits.
132. The rehabilitation of the existing occupants could not have been done
without carrying out redevelopment on the land on which the existing
structure constructed by the MHADA for EWS/LIG and MIG were
constructed. The present project in our view thus clearly fell within the
scope of Regulation 33(5) and thus the petitioners had rightly claimed
relaxation in payment of premium under Clause 6 of Regulation 33(5) read
with Regulation 33(10) and Clauses 6.21 and 6.22 Appendix IV appended
thereto. In our view, Dr.Sathe, learned senior counsel for the petitioners is
right in his submission that even if the Municipal Commissioner has
exercised his discretionary powers under Regulation 64 of D.C. Regulations,
the Municipal Commissioner ought to have granted the entire relief in
payment of relaxation of premium. The Municipal Commissioner could not
have restricted the relaxation of payment of premium only upto 20.90
sq.mtrs. area in respect of each flat.
133. The submission of the respondents that the relaxation of premium in
case of rehabilitation of slums cannot be extended to scheme under
Resolution 33(5) on the ground that the problems such as inadequate light ,
ventilation facility and sanitary facility suffered by the occupants in slums
bdp
wp-1699.16(j).doc
were not suffered by the occupants/tenants under EWS/LIG/MIG group is
totally untenable and contrary to the object of the Housing Policy. The
rational behind providing such relaxation in both these categories was same.
134. Dr.Sathe, learned senior counsel for the petitioners invited our
attention to few incidences where the respondent no.1 had granted relaxation
in payment of premium on fungible FSI in similar situation. Since this Court
is of the view that the petitioners were also eligible for such relaxation in
payment of premium, in this case, the petitioners have rightly contended that
the action on the part of the respondent no.1 is discriminatory against the
petitioners by allowing relaxation in favour of few other developers similarly
situated and by refusing such relaxation in favour of the petitioners.
135. Insofar as the submission made by Mr.Sakhare, learned senior counsel
for the respondent no.1 and adopted by Mr.Lad, learned counsel for the
respondent no.2 are concerned, those submissions are already dealt with in
the earlier paragraphs of the judgment. There is no substance in the
submissions of Mr.Lad that the petitioners have carried out construction of
the larger tenaments than the size permitted by the State Government in the
Government Resolution dated 26th August, 2009. This aspect is clarified by
the petitioners in the additional affidavit on 5th January, 2021 and by filing a
statement showing the break up of the original area permitted under
Government Resolution, fungible FSI utilized and the total carpet area of
those tenaments. We are satisfied with the explanation given by the
petitioners in paragraph 5.5 of the said additional affidavit dated 5 th January,
bdp
wp-1699.16(j).doc
2021. The size of the tenaments constructed by the petitioners for the LIG
big tenaments, LIG small tenaments and EWS tenaments would clearly
indicate that the size 53.39 sq.mtrs., 45 sq.mtrs. and 45 sq.mtrs. respectively
are inclusive of the percentage of the fungible FSI permitted by the State of
Maharashtra under Regulation 35(4) vide notification dated 6th January, 2012
availed of by the petitioners. There is thus no substance in the submission of
the learned counsel for the MHADA that the petitioners had committed any
violation of the Government Resolution prescribing the maximum carpet
area under these schemes.
136. A perusal of the notification dated 6th December, 2008 thereby
modifying Regulation 33(5) of the D.C. Regulations indicates that all the
scheme that are sanctioned under Section 33(5) for EWS/LIG/MIG including
redevelopment thereof are entitled for benefit of non payment of premium
for exclusion of area like staircase and lift etc from computation of FSI and
more particularly in view of Clause 6 of Regulation 33(5) inserted by
notification dated 6th December, 2008. In our view, the contention of
respondents that the schemes of the petitioners is not for the benefit of EWS/
LIG/MIG is totally untenable and contrary to their stand taken in the
affidavit in reply and various sanctions granted by the respondents.
137. Dr. Sathe, learned Senior Counsel for the petitioners is right in his
submission that the submission of the respondents made belatedly across the
bar that the original character of the scheme for the benefit of
EWS/LIG/MIG is after thought and is even otherwise untenable. A perusal
bdp
wp-1699.16(j).doc
of the NOC dated 1st July, 2014 read with Letter of Offers issued from time
to time by the MHADA clearly indicates that the petitioners were required to
carry out construction of large number of tenaments of all the structures
originally constructed by MHADA. The scheme of
redevelopment/rehabilitation under notification dated 6th December, 2008
has to be read with the Housing Policy which was translated into the said
notification dated 6th December, 2008. In our view, there is no distinction
made out under Clause 6 of the Regulation 33(5) between the original
development and the redevelopment/ rehabilitation of the existing
EWS/LIG/MIG.
138. A conjoint reading of the object of D.C. Regulation 33(5) read with
Housing Policy makes it clear that the MHADA on its own was required to
rehab EWS/LIG/MIG occupants whose buildings have become dilapidated
or in joint collaboration with the developers or by permitting the society or
the developers to carry out redevelopment/ rehab the existing
EWS/LIC/MIG occupants by self-financing the project by granting
additional FSI to enable to developers to carry out construction of an
additional tenaments for outright sale.
139. In our view, the present income of the occupants who were then
classified under any of the EWS/LIG/MIG category cannot be considered
now for considering their eligibility under the category of EWS/LIG/MIG
under the project undertaken by the petitioners under Section 33(5) of the
D.C. Regulations to rehabilitate the existing occupants under
bdp
wp-1699.16(j).doc
EWS/LIG/MIG. The respondents could not point out any provision in the
terms of the original allotment of the tenaments to those occupants under
EWS/LIG/MIG allotted by MHADA in the original buildings constructed by
MHADA to the effect that in future at any stage, if the income of any of
those occupants/tenants would exceed the income that was considered for
their eligibility for allotment of those tenaments under EWS/LIG/MIG, they
would cease to be tenants/occupants and would have to vacate their
respective tenaments on such ground. The submission of the learned Senior
Counsel for the Municipal Corporation and learned Counsel for the MHADA
that as of today those occupants/tenants no longer continues to be of the
status of EWS/LIG/MIG and thus the project under taken by the petitioners
could not be considered as a project for rehabilitation of EWS/LIG/MIG
under Regulation 33(5) is totally untenable and ex-facie contrary to the
Housing Policy framed by the State of Maharashtra and the provisions of
Regulation 33(5) of the D.C. Regulations.
140. Be that as it may, it is not the case of the respondents in any of the
pleadings or was the ground for rejection of claim for relaxation of premium
that because of the present status of income of those occupants/tenants of
various documents in the original buildings constructed by the MHADA,
they cease to be the tenants/occupants of the tenaments allotted to them long
back under EWS/LIG/MIG. The Municipal Corporation also had sanctioned
the plan submitted by the petitioners from time to time under those
provisions under Regulation 33(5) of the D.C. Regulations.
bdp
wp-1699.16(j).doc
141. Insofar as the submission of the respondents that the carpet area
offered by the petitioners to the tenants/occupants under EWS/LIG/MIG
being more than the carpet area prescribed under the Government Resolution
dated 26th August, 2009 and thus no exemption from payment of premium
could be granted to the petitioners on that ground is concerned, this aspect
has been clarified by the petitioners in the additional affidavit dated 5 th
January, 2021 filed by the petitioner in this Writ Petition. On the perusal of
the chart submitted by the petitioners after closure of the arguments giving
the breakup of the carpet area allotted to each of the tenants/occupants under
EWS/LIG/MIG, it is clear that the petitioners had taken the benefit of
fungible FSI permitted under Regulation 35(4) of the D.C. Regulations. The
petitioners have rightly explained that the petitioners are providing the carpet
area of not more than 45 sq. meters to LIG and EWS categories as per the
chart as provided in Government Resolutions dated 26 th August, 2009, 5th
February, 2008 and the NOC issued by MHADA.
142. There is merit in the submission of the Dr. Sathe, learned Senior
Counsel for the petitioners that when the petitioners scheme under
Regulation 33(5) was sanctioned, the petitioners were providing an area of
not exceeding 45 sq. meters carpet area along with certain free of FSI areas
such as balcony, flower bed etc. After the amendment of DCR on 6 th January,
2012 certain areas such as balcony, flower bed which were earlier excluded
from computation of FSI were not included in computation of FSI. The
members of the petitioners no.1-society who were otherwise entitled to
carpet area upto 45 sq. meters along with certain free of FSI areas such as
bdp
wp-1699.16(j).doc
balcony, flower bed, those free of FSI areas were no longer available. The
State of Maharashtra accordingly introduced "Compensatory Fungible FSI"
of 35% over and above the permissible FSI. The petitioner no.2 has
accordingly provided the other areas which it was earlier providing by way
of balcony, flower bed to the extent of 35% as it had committed to the
members of the petitioner no.2-society.
143. NOC dated 1st July, 2014 issued by MHADA and more particularly
Clause 21 thereof also clearly indicates that the tenaments of EWS and LIG
are permitted maximum carpet area upto 45 sq. meters. There is no merit in
the submission of Mr. Sakhare, learned Senior Counsel for respondent no.1
and Mr. Lad, learned counsel for the respondent no.2 that the carpet area
provided by the petitioners for EWS/LIG/ MIG were more than the carpet
area determined by the Government or that such schemes cannot be
considered or treated as tenaments for the schemes EWS/LIG/MIG as
contemplated under Regulation 33(5) on the basis of alleged larger area by
the petitioners. The said Clause 21 reads thus "further T/s of EWS/LIG are
permitted maximum carpet area upto 45 meters."
144. There is no substance in the submission of Mr. Sakhare, learned
Senior Counsel for the respondent no.1 that the Circular dated 5 th February,
2008 would have no application in the present case. Be that as it may, the
carpet area of 45 sq. meters is provided in the NOC issued by MHADA itself
in case of EWS and LIG and more particularly Clause 21 of the NOC dated
1st July, 2014. The said Clause 21 of the NOC dated 1 st July, 2014 does not
bdp
wp-1699.16(j).doc
provide that the carpet area upto 45 sq. meters to EWS and LIG was
including of balcony area. The respondent no.1 itself has admitted that in the
present case the benefit of consumable FSI is granted free of premium to the
petitioners.
145. There is no merit in the submission of Mr. Sakhare, learned Senior
Counsel for the respondent no.1 that the petitioners have picked and chosen
any of the provisions from the notification dated 8 th October, 2013. In the
earlier paragraphs of these judgments, we have already taken a view that the
said notification dated 8th October, 2013 does not apply to the projects
undertaken by the petitioners. It is also held by this Court that even if the
said notification applies, the petitioners are entitled to exemption from
payment of premium which are exempted in case of all the schemes under
Regulation 33(10) read with Clauses 6.21 and 6.22 of Appendix IV of the
D.C. Regulations. Reliance placed by the respondent no.1 on the definition
of carpet area under Clause 2(15) of the D.C. Regulations is misplaced. The
NOC issued by MHADA on 1st July, 2014 prescribing the carpet area in
respect of EWS and LIG is after issuance of the notification dated 6 th
December, 2008, Circular dated 5th February, 2008, Government Circular
dated 26th August, 2009 and notification dated 8th October, 2013.
146. It is not the case of the respondents that the petitioners were granted 3
FSI under the said Government Notification 8th October, 2013. The
petitioners have also rightly not demanded 3 FSI under the said notification
dated 8th October, 2013. Neither respondent no.1 nor respondent no.2
bdp
wp-1699.16(j).doc
disputed before this Court that under Clause 21 of the NOC issued by
MHADA carpet area of the tenaments under EWS and LIG was upto 45 sq.
meters. There is no merit in the submission of Mr. Sakhare, learned Senior
Counsel for the respondent no.1 that the allotment of rehab tenaments is
entirely based on the private negotiations between the developer and the
society/members/occupiers thus it is not possible to ascertain as to which
size of tenaments are being allotted to which category of persons.
147. Under the amended plan submitted for sanction by the petitioners and
also in the NOC granted by the MHADA number of buildings required to be
constructed by the petitioners for rehabilitating the EWS/LIG/MIG has been
clearly provided. The Municipal Corporation being the Planning Authority at
the relevant time cannot be allowed to raise this plea for the first time in the
supplementary written arguments. Though this Court had directed the parties
to file supplementary written arguments on limited issue, the Municipal
Corporation has expanded the scope of the supplementary written arguments
by making additional submissions which were not raised across the bar at the
time of arguments nor raised in the detailed written arguments already filed
earlier. Reliance placed on Section 22(m) of the MRTP Act by the
respondents is also misplaced. The provision for charging premium under
Section 33(2)(iv) of the D.C. Regulations, 1991 has to be read with Clause 6
of Regulation 33(5) as amended by notification dated 6th December, 2008. In
our view, there is no substance in any of the additional issues raised by the
respondent no.1 in the supplementary written arguments.
bdp
wp-1699.16(j).doc
148. In our view, the impugned order passed on 6th January, 2018 and 4th
February, 2017 are perverse and contrary to the provisions of D.C.
Regulations and more particularly Clause 6 of Regulation 33(5) read with
Regulation 33(10) read with Clauses 6.21 and 6.22 of Appendix IV. There is
no merit in any of the submissions made by the learned counsel for the
respondents. The petitioners have made out a case for refund of amount of
Rs.27 crores deposited pursuant to the order passed by the Hon'ble Supreme
Court with interest which was allowed to be withdrawn by the respondent
no.1.
149. We, therefore, pass the following order :-
(a) Rule is made absolute in terms of prayer Clauses (a),
(b), (c), (d), (d-1), (d-2) and (g-a).
(b) Respondent no.1 is directed to refund the amount of
Rs.27 crores with interest at the rate of 6% per annum
from the date of withdrawal of the said amount by the
respondent no.1 pursuant to the liberty granted by the
Hon'ble Supreme Court within eight weeks from
today.
(c) There shall be no order as to costs.
(d) The parties to act on the copy of this order duly
authenticated by the Associate of this Court.
[MADHAV J. JAMDAR, J.] [R. D. DHANUKA, J.]
