Bombay High Court
Sir Gangadharrao Chitnavis ... vs The Nagapur Municipal ... on 9 January, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 167 OF 2021
Sir Gangadharrao Chitnavis Memorial Medical Research Trust
Vs.
Nagpur Municipal Corporation
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri Sunil Manohar, Senior Advocate assisted by Shri Atharv Manohar,
Advocate for the petitioner.
CORAM :- SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED :- 09.01.2021
Heard Shri Sunil Manohar, the learned senior
counsel assisted by Shri Atharv Manohar, learned counsel for the
petitioner.
Issue notice to the respondent, returnable after two
weeks.
The short question involved is once the land stands
already developed, as in the present matter, where the land in
question stands in Civil Lines area in the city of Nagpur, whether the
development charges can again be levied at the time of subsequent
sanction, when the building is to be constructed on the said land.
In the instant case, the building permit was issued
for construction, which is communicated by demand in this regard at
page No.47, dated 10.11.2018, which accepting the position that the
land is already developed, imposes the charges only for the
construction purpose. When the construction was complete and
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application was filed for issuance of occupancy certificate, objections
were raised that the building in question has a slight deviation,
inasmuch as width of the building is 0.79m wider and the length of
the building is 1.64m longer and on this ground the occupancy
certificate was declined and the petitioner was asked to again apply
afresh for sanction of the entire building, ignoring the fact that the
sanction was already granted earlier in 2009.
When the application was made, by the communication
dated 19.07.2019, the development costs for the land was assessed as
Rs.60,60,056/- and the petitioner was asked to pay the same.
In the information obtained under the Right to
Information Act, para No. 9 of the information obtained, which is the
order-sheet of N.M.C. (page No.91 of the petition) indicates that
development charges were claimed inadvertently not to have been
assessed at the time of initial sanction and therefore, the same have
been charged.
Shri Manohar, learned senior counsel invites our attention
to the provision of Section 124A of the Maharashtra Regional & Town
Planning Act, 1966 and contends that the development charges can
only be levied in respect of the land which is not earlier developed.
He also invites our attention to the judgment of this Court in case of
Sanjay Lakhanlal Agnihotri and others vrs. Union of India and others,
reported in 2018(1) Mh.L.J. 760 and specifically para 21 thereof,
which states that whenever a person approaches and seeks sanction to
a building plan, if his plot is in approved layout, it is clear that no
development charges in relation thereto can be demanded.
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There is no dispute about the fact that the land in
question is already developed, as the houses were constructed
thereupon, as indicated by the demand notice dated 10.11.2008. That
being the position, the demand on account of development charges of
land again under the impugned notice is clearly unsustainable in law.
Shri Manohar, learned Senior Advocate fairly submits that there is an
appeal provided under Section 124G of the said Act. However, in the
light of the fact that no show-cause notice was issued, nor the
opportunity was granted, such an exercise would, according to him, be
an exercise in futility.
Having considered the above position, we are of the
view that prima facie case has been made out for grant of interim
relief.
Therefore, there shall be an interim stay to the
effect and operation of the order dated 11.04.2014 and to the demand
made in pursuance thereto as per prayer clause c. Insofar as the issue
of part occupancy certificate is concerned, the respondent is directed
to act upon the same and if otherwise permissible in law, the same be
issued to the petitioner.
JUDGE JUDGE
Rvjalit
