Bombay High Court
Dhanraj Jewels Realty Pvt Ltd vs The State Of Maharashtra Through ... on 30 November, 2023
Author: Gs Patel
Bench: G.S.Patel
2023:BHC-OS:14383-DB Dhanraj Jewels Realty Pvt Ltd v The State of Maharashtra & Ors
905-OSWPL-29746-2023-J.doc
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 29746 OF 2023
Dhanraj Jewels Realty Pvt Ltd,
Through its Director and Authorized
Representative Mr Deepak D Murpana,
having office at 22, Jewel Arcade, Waterfield
Road, Bandra (West), Mumbai 400 050 ...Petitioner
~ versus ~
1. The State of Maharashtra,
Through Secretary, Urban
Development Department, having
office at: Mantralaya, Churchgate,
Mumbai 400 028.
2. Municipal Corporation of
Greater Mumbai,
Through Municipal Commissioner,
having office at: Mahapalika Building,
ARUN
RAMCHANDRA Mahapalika Marg, Mumbai 400 001.
SANKPAL
Digitally signed by
ARUN
3. The Executive Engineer,
RAMCHANDRA
SANKPAL
Date: 2023.12.11
Building Proposal,
10:19:56 +0530
H/W Ward, Through Legal
Department, MCGM having office at:
Mahapalika Building, Mahapalika
Marg, Mumbai 400 001. ...Respondents
Page 1 of 13
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Dhanraj Jewels Realty Pvt Ltd v The State of Maharashtra & Ors
905-OSWPL-29746-2023-J.doc
A PPEARANCES
for the petitioner Mr Mayur Khandeparkar, i/b
Aditya Shirke.
for respondent- Mr Milind More, Adl. GP.
STATE
for respondent- Ms Rupali Adhate.
MCGM
Present in person Mr Sushin Main, Sub-Engineer
(Building & Proposal
Department), H/W Ward.
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 30th November 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Rule.
2. By consent of the parties, Rule is made returnable forthwith.
3. The Writ Petition and Interim Application are to be finally
numbered by Monday, 4th December 2023.
4. The Petition is on parity with the cases that we decided by
our detailed judgment in Prestige Estate Projects Ltd v State of
Maharashtra & Ors. 1
1 2023 SCC OnLine Bom 2435.
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5. The controversy was about the concession granted for a
limited period of time during COVID in respect of the premium
payable for the additional Floor Space Index ("FSI"). This
premium is typically payable by developers as a consideration for
obtaining additional FSI benefits under the Development Control
Regulations ("DCR") in force.
6. As we noted in Prestige Estate Projects Ltd, the Government
Resolution ("GR") in question was based upon the
recommendations of a Special Committee appointed to look into the
difficulties being encountered during COVID by various developers
whose construction projects were adversely affected by the
lockdown and pandemic. The Intimation of Disapproval ("IoD"),
when issued, had a validity period of one year. It was at that time
that the premium had to be paid for the additional FSI, but a
necessary requirement was that a Commencement Certificate
("CC") had to be obtained within the one year validity period of the
IoD. Many IoDs lapsed and, for various reasons, CCs could not be
obtained. The Municipal Corporation of Greater Mumbai
("MCGM") then began demanding the premium or the differential
in the premium for a revalidation of an IoD. It was contended before
us that this defeated the entire purpose of the concession under the
GR. Even if credit was being given for the 50% payment, the demand
for the differential in premium essentially rendered the purpose of
the GR and its effect entirely illusory. We found in favour of the
Petitioners.
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7. The Prestige Estate Projects Ltd matter related to several
projects. As the following narrative will show the present case is
similar to two of the cases that were before us in the Prestige Estate
Projects Ltd group.
8. The property here is CTS No 921 and 922 of Village Bandra-
F, Final Plot Nos 122 and 123 of TPS Bandra-IV at Waterfield Road
and 1st Road, Bandra (West), Mumbai. The plot is 919.7 sq mts.
9. On 23rd November 2021, the Petitioner applied for an IoD
and made full payment under the concession scheme. In Prestige
Estate Projects Ltd one of the factors that we noted was that this was
not a concession under the GR that was unrestricted but it was
closely tied to an undertaking that the developer would, until
delivery of possession absorb and bear entirely, the stamp duty
component for all flat purchasers. That condition could not be
waived. A written undertaking was required.
10. In this case also the Petitioners gave precisely such an
undertaking. The IoD followed on 12th January 2022 under the
concession scheme. The Petitioner paid an amount of approximately
Rs 6.25 crores for various permissions. On 11th January 2023, the
IoD lapsed. The Petitioner states that it was unable to apply for CC
due to an allied pending litigation. That was the subject matter of
Writ Petition No 2988 of 2022 and a Tenancy Eviction (T.E.) Suit
No 56 of 2016 which has been expedited.
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11. On 28th October 2023 the Petitioner sought a revalidation of
the IoD. This Petition was filed on 21st October 2023. On 26th
October 2023, Respondent Nos. 2 and 3 rejected the Petitioner's
revalidation application but did so on grounds that we find
extremely curious. The remarks in question are to the effect that
there is 'no provision for revalidation of the IoD under the DCPR
2034 if the CC is not obtained within one year'. This is plainly
incorrect. The DCPR 2034 is not a primary legislation. It is
subordinate legislation. The governing statute is the Maharashtra
Regional and Town Planning Act, 1966 ("the MRTP Act") and it
has a specific provision that deals with an extension or revalidation
of development permissions.
12. The present Petition was amended to challenge the impugned
rejection and to introduce other facts.
13. Prayer clauses (a1) and (b) of the Petition read thus:
(a1) This Hon'ble Court may be pleased to issue a Writ of
Certiorari or any other appropriate writ or order or
direction in the nature of Writ of Certiorari thereby calling
for the record and proceedings in respect of impugned
Rejection dated 26th October 2023 issued by the
officer/engineer of the Respondents No.2 and after
examining the legality, validity and propriety thereof,
quashing and setting aside the same (Being Exhibit "M" to
the Petition): [Mentioned in the Schedule of Amendment).
(b) This Hon'ble Court be pleased to issue a Writ of
Mandamus or any other writ or order or direction in the
nature of Mandamus thereby directing the Respondent
Nos. 1 to 3 not to insist upon any further payment towards
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premiums already paid under the 'Concession Scheme' and
to revalidate the IOD submitted on 20th October 2023 to
the Respondent No.2 under file No. P-9480/2021/(122
And Others)/H/W Ward/FP (Being Exhibit "K" to the
Petition); [Mentioned in the Memo of Petition]."
14. To put this into context, we need to reproduce the relevant
paragraphs of our judgment in Prestige Estate Projects Ltd.
"WRIT PETITION (L) NO. 22774 OF 2023: ANKUR
DEVELOPERS LLP
58. Ankur Premises Developers LLP ('Ankur Premises')
holds development rights for an approximately 598 sq mts
property at CTS No G/397/3 at Santacruz (West). This is
the property of the Santacruz Prem Sagar CHSL. These
development rights were granted to Ankur Premises on 31st
July 2016. It was not until February 2019 that a
supplemental agreement came to be executed. The consent
of one member remained. That was obtained only in
February 2019. On 12th February 2020, a second
supplemental agreement was executed and all members of
the society joined in the execution of that agreement.
59. Ankur Premises took the benefit of the amnesty
scheme and paid the discounted rate sometime in August
2021.
60. As is not atypical in these matters, there were then
further controversies. Demolition of the existing structure
could not proceed. Ankur Premises had an IoD of 18th
August 2021 and this was clearly valid only until 17th
August 2022. Ankur Premises sought revalidation of its
IoD.
61. We will pass over the more intricate details of the
correspondence that went on and note that it was not until
October-November 2022 that members of the Society
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vacated their premises and delivered possession.
62. Ankur Premises has been paying or says it has been
paying transit rent since then. Ankur Premises' IoD has
lapsed. For a revalidation, the MCGM demand is that it
must pay the balance premium computed at current ASR
rates.
63. Hence this Petition on 18th August 2023 for the
following reliefs:
"a) This Hon'ble Court be pleased to issue
a writ in the nature of mandamus or any other
writ or order or direction directing the
respondents to adhere and implement the
amnesty scheme issued by Respondents vide
Circulars dated 22nd February, 2021 and 5th
March, 2021 (Exhibit A and B);
b) This Hon'ble Court be pleased to issue
a writ in the nature of mandamus or any other
writ or order or direction directing the
Respondents to renew and revalidate the IoD
dated 18th August, 2021 (Exhibit C) on
payment of the said Payments for Revalidation
of IoD by the Petitioner without demanding
additional premium amounting to
Rs.2,15,91,065/- (Rupees Two Crores Fifteen
Lakhs Ninety One Thousand and Sixty Five
Only);
c) That this Hon'ble Court be pleased to
issue a writ of certiorari or any other writ,
order or direction calling for the records and
files of the case and after going into the
legality and validity of the decision conveyed
by the Respondent No.4 vide clarification
dated 23rd December, 2022 (Exhibit K),
quash and set aside the decision i.e. demand
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fresh premium for renewal/ revalidation of
IoD;
d) In the alternative of prayer (c) it may be
clarified that the said clarification letter dated
23rd December, 2022 (Exhibit K) is not
applicable to the present case of the
petitioner.
e) That this Hon'ble Court be pleased to
issue a writ of certiorari or any other writ,
order or direction calling for the records and
files of the case and after going into the
legality and validity of the decision conveyed
by the Respondents vide Letter dated 28th
February, 2023 (Exhibit T) quash and set
aside the communication;"
......
WRIT PETITION (L) NO. 27895 OF 2023:
EVERSHINE BUILDERS PVT LTD
86. The Shree Trimurti CHSL owns property at CTS
No 625/12 of Village Bandra-G, TPS II. The land is about
1729 sq mts. at South Avenue, 17th Road, Khar (West).
There was a structure on this of ground and five upper
floors with 17 flats. On 6th February 2018, the society
entered into a Development Agreement with Evershine
Builders. In June 2019 Evershine Builders submitted an
application to the MCGM for the construction of a high rise
residential tower. It paid the applicable scrutiny fees,
infrastructure, improvement charges, development charges
etc.
87. On 4th January 2020, Evershine Builders obtained
an IoD.
88. On 31st August 2020, Evershine Builders had to file
Suit No 81 of 2021 against several non-cooperating
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members of the society demanding vacant and peaceful
possession. On 24th September 2020, these members filed
a Counter Suit No 136 of 2021 for a declaration that the
Development Agreement was void and not binding on
them.
89. Evershine Builders' IoD lapsed on 3rd January 2021.
90. In June 2021, Evershine Builders submitted an
application for an amended IoD for constructing Wing A
and Wing B, basement, stilts, three podium levels, and the
first to 10th floors (and, presumably, all the other
'necessities' of urban life in Mumbai such as swimming
pools, gymnasiums, jogging tracks etc.) Evershine Builders'
application had several proposals for additional FSI
including fungible FSI and slum TDR.
91. By this time the rebate policy was in place. The
MCGM computed various amounts to be paid and in
August 2021, Evershine Builders paid these amounts which,
by a rough reckoning comes to about Rs 10.75 crores.
92. In accordance with the terms of the GR, Evershine
Builders also submitted an undertaking to continue to bear
the entire stamp duty liability. The fresh IoD was issued on
11th August 2021.
93. On 1st July 2022, MCGM issued a notice seeking
eviction of occupants from the property in question. This
notice was challenged by the non-cooperating members
before the Bombay City Civil Court which granted a stay on
16th July 2022. Ultimately, the Notice of Motion for stay
came to be dismissed by the Bombay City Civil Court only
on 25th November 2022. By this time, the second IoD had
also lapsed. In the meantime, the non-cooperating members
came up in an Appeal from Order No 1098 of 2022 against
the 25th November 2022 order of the Bombay City Civil
Court.
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94. That Appeal from Order was ultimately dismissed
but only very recently on 14th September 2023. In the
meantime, Evershine Builders has been told that it must
now pay the balance premium if it wishes a revalidation of
its IoD.
95. On 6th October 2023, Evershine Builders filed this
Writ Petition seeking the following reliefs:
(a) That this Hon'ble Court be pleased to
issue a writ of certiorari or a writ in the nature
of certiorari or any other appropriate writ,
order or direction calling for records
pertaining to the impugned letter dated 23rd
December 2022 (being Exhibit J hereto)
issued by the Respondent No.1 and after
examining the legality and validity thereof be
pleased to quash and set aside the same;
(b) That this Hon'ble Court be pleased to
issue a writ of mandamus or a writ in the
nature of mandamus or any other appropriate
writ, order or direction restraining the
Respondents from demanding any amount as
premium for additional FSI of 797.96 sq. mtrs,
fungible compensatory FSI for 820.85 sq.
mtrs., Staircase premium area 807.72 sq mtrs
and open space deficiency of 1052.56 sq. mtrs.
in respect of the said Property being Plot No.
K-69/78, bearing CTS No. 625/ 12 of Village
Bandra-G, TPS-II, admeasuring 1729.10 sq.
mtrs, lying, being and situate at South
Avenue, 17th Road, Khar (West), Mumbai
400052, while reissuing / revalidating the
Intimation of Disapproval dated 11th August
2021.
......
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165. It is of no consequence when, for instance under the
RERA law, a flat may legitimately be sold. The only
question to be decided is whether the IoD is liable to be
revalidated without insisting on payment of additional
premium for those developers who, being eligible,
participated in the rebate scheme.
166. We hold, in the facts and circumstances that have
been set out above, and on a correct interpretation of the
GR that these IoDs are liable to be revalidated and
Commencement Certificates may in the normal course be
issued without a requirement to pay an additional or
differential premium provided the conditions in the GR are
fully met (including payment of the full amount of the
premium within the time stipulated, submission of the
undertakings etc.).
167. To conclude, we may consider once again the 8th
June 2023 communication from the Maharashtra
Government. It seems to us that the Government has
correctly set out that the 14th June 2021 GR had already
lapsed and there was no question of continuing its benefit in
successive years. But this only meant that its rebate policy
was confined to that year in question. It is for this reason
that the Government concluded by saying that it was
unclear as to under which provisions any concession was
sought to be continued. The State Government asked for a
more precise proposal.
168. Correctly read, the Government communication did
not seek to extend the 14th January 2021 circular beyond its
expiry date of 31st December 2021. But this necessarily
meant that within that period the GR was valid and
subsisting and all its conditions had to be met for its benefits
to be availed of.
169. Consequently, the only fair reading of this GR is,
while insisting on the fulfilment of the conditions, to
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maintain the continuance of the benefit that it confers. Any
other reading of the GR would render it entirely illusory
and even meaningless especially in the long run. No such
concession is available after the period of the GR. It is not
being suggested that in the normal course revalidated or
renewed IoDs will be exempt from payment of the
differential premiums or premium if any.
170. We dispose of all these Petitions by directing the
MCGM to revalidate or renew the IoDs in question
without insisting upon payment of an additional or
differential premium but only in respect of those
developers/projects that have met the conditions of the
14th January 2021 GR.
171. The Petitions are disposed off in these terms. There
will be no order as to costs."
15. On any assessment of the facts, the present case is
indistinguishable from those that were before us in Prestige Estate
Projects Ltd. This is not a matter of concession being recorded on
behalf of the MCGM. We have, indeed, in our judgment in Prestige
Estate Projects Ltd rejected and repelled the contentions that were
advanced by learned Senior Counsel on behalf of the MCGM. We
see no reason to depart from the view that we took in that matter.
16. Accordingly, in the present matter as well, Rule is made
absolute in terms of prayer clauses (a1) and (b) set out above.
17. The directions in paragraph 170 of our judgment in Prestige
Estate Projects Ltd (extracted above) will apply in the present case as
well.
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18. The Petition is disposed of in these terms with no order as to
costs.
(Kamal Khata, J) (G. S. Patel, J)
30th November 2023
