Bombay High Court
M/S. Neelkamal Realtors Suburban ... vs The State Of Maharashtra Thr. Principal ... on 7 April, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:16972-DB
WP-13935-2023_C_.doc
Andreza
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13935 OF 2023 [Civil]
1. M/s. Neelkamal Realtors Suburban
Private Ltd, a Company registered under
the provisions of the Companies Act, 1956
having their registered office at DB Central,
Moulana Azad Road, Rangawala
Compound, Jacob Circle, Mumbai - 400
011.
2. Mr. Ishaq Balwa, an Authorised
representative of Petitioner No. 1 having his
Office at DB Central, Moulana Azad Road,
Rangawala Compound, Jacob Circle,
Mumbai - 400 011. ... Petitioners
Versus
1. The State of Maharashtra, Through its
Principal Secretary Urban Development
Department, through Government Pleader,
High Court, Appellate Side, Bombay.
2. The Mira Bhayander Municipal
Corporation, having its office at Indira
Gandhi Bhavan, Chhatrapati Shivaji Maharaj
Marg, Bhayander West Thane - 401101,
through Commissioner - email:
[email protected]
3. Municipal Commissioner-Mira Bhayander
Municipal Corporation, having its office at
Indira Gandhi Bhavan, Chhatrapati Shivaji
Maharaj Marg. Bhayander (West), Thane -
401101. ... Respondents
***
Mr. Girish Godbole, Senior Advocate A/W Rutuja Patil, Yohann
Shah, Hasan Mushabber i/by Negandhi Shah & Himayatullah,
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Advocates for the Petitioner.
Mr. Y. D. Patil, AGP for Respondent-State.
Mr. N. R. Bubna, Advocate for Respondent Nos. 3 and 4.
---------------------------
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE,J.
RESERVED ON: 12th DECEMBER, 2024
PRONOUNCED ON: 7th APRIL, 2025
JUDGMENT (Per Bharati Dangre, J.)
1. M/s. Neelkamal Realtors Private Limited Company registered
under the provisions of Companies Act, engaged in the business of
development and construction within and around Mumbai and Thane
District is aggrieved by the communication addressed to it by the Mira
Bhayander Municipal Corporation (MBMC) dated 29.03.2022, thereby
rejecting the request of the Petitioner to claim the benefit of the Unified
Development Control and Promotion Regulations (herein after referred
to UDCPR) and permitting it to switch to the new scheme for the
reasons therein.
2. We have heard learned Senior Counsel Mr Godbole for the
Petitioner, Mr. Bubna for the Municipal Corporation and the learned
Additional Government Pleader for the State.
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By consent of the parties, we issue 'Rule' and take up the petition
for final hearing, in the wake of the urgency expressed.
3. Before we come to the impugned Orders which are assailed in
the Writ Petition and adjudicated upon its legality or otherwise, we
must refer to the background facts resulting into passing of the
impugned orders.
The Petitioner no. 1 M/s Neelkamal Realtors is the owner of
contiguous pieces of land situated at Village Mira (now Mahajanwadi)
and also a Developer and is concerned with land bearing CTS Nos. 4100
[part], 4362, 4363, 4454, 4455, 4456, 4513, 4515, 4516, 4517, 4518,
4519, 4520, 4547, 4548, 4549, 4570 to 4572, 4604, 4610, 4611, 4614,
4659, 4638, 4639, 4647, 4686 to 4690, 4691, 4692, 4702, 4704 to
4709, 4710 to 4721, 4724 to 4732 and corresponding S Nos 95/10 to 12,
14, 15, 97/3 [part], 94/1, 2 and 260 (part), located in Dist Thane. The
aforesaid parcel of land fall within the jurisdiction of Respondent no. 2-
MBMC.
It is the case of the Petitioner that in the year 2008-2009,
pursuant to the State of Maharashtra formulating and notifying the
"Rental Housing Scheme" under Section 154 of the Maharashtra
Regional Town Planning Act 1966 (MRTP Act), the same was
implemented by Respondent no.2 within its jurisdiction.
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The Government of Maharashtra through Urban Development
Department, on 26.11.2008, issued Notification purportedly under
Section 20(4) of the MRTP Act, 1966 and sanctioned modification to
the Regional Plan of Mumbai Metropolitan Region, thereby
introducing DCR 15.40 for Rental Housing Scheme, which
contemplated grant of FSI of 4.00 on the plot area out of which FSI was
to be consumed on 25% land area, to be conveyed to Maharashtra
Metropolitan Regional Development Authority (MMRDA) and the
remaining FSI of 3.00 was to be used on 75% of land. The building for
MMRDA was to comprise of small tenements with an area of 14.46
square metres, which was proposed to be used by MMRDA for
implementing Rental Housing Scheme for homeless people. The
scheme contemplated locational/clearance by MMRDA.
On 31.12.2010, the Municipal Corporation of Mira Bhayander
sanctioned land of a larger land of the Petitioner which contemplated
implementation of Rental Housing Scheme on the basis of location
clearance given by MMRDA. Accordingly, the Petitioner commenced
the construction and constructed eight multi storeyed building on 25%
land area by using FS-I whereas on the remaining area other buildings
came to be constructed.
4. On 17.05.2012, the Government of Maharashtra issued a
Resolution and constituted a Committee for submitting a report
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regarding rationalizing and implementation on Rental Housing Scheme
and somewhere in February 2013, the Committee submitted its final
report to the Government.
Based on the recommendations of the Committee, on 30.11.2013,
the Government of Maharashtra published a Notification under Section
37(1aa) of the MRTP Act inviting claims and objections regarding the
proposed modification in the Regional Plan of Mumbai Metropolitan
Region as well as the development plans of various Municipal
Corporations/Councils, who were the Planning Authorities under
Section 2(19) of the MRTP, as it proposed to abolish the Rental
Housing Scheme of MMRDA.
5. On 07.08.2014, a final notification was issued by the State
Government modifying the Regional Plan and the Development Plan of
various planning authorities thereby scrapping the Rental Housing
Scheme. Clause 11 of he Notification prescribed that the Rental
Housing projects for which location/clearance has been granted by the
MMRDA but the commencement certificate has not been issued, can be
allowed to be continued under the said scheme provided such proposal
is submitted to MMRDA within 30 days and it is further submitted by
MMRDA to the State Government for approval. It was also provided
that in cases where Rental Housing Schemes is already approved by
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grant of completion certificate, with the prior approval of the State
Government, they could be converted in to affordable Housing Scheme.
6. On 26.08.2024, the Government of Maharashtra issued another
Notification under Section 20(4) of the MRTP 1996 Act thereby
amending the Regional Plan by providing that the Rental Housing
Scheme shall be discontinued but only those projects in which
locational/clearance has been granted by MMRDA will have an option
to submit the proposal to MMRDA to continue the project under the
Scheme within thirty days of publication of Notification and thereafter
only after scrutiny by MMRDA and sanction by the State Government,
such project could continue as Rental Housing Scheme Projects.
7. On 21.12.2020, the UDPCR was made applicable to all Planning
Authorities and Regional Plan areas except MCGM.
The UDPCR was sanctioned by the State Government under
Section 37(1)(aa)(c) and Section 20(4) of MRTP on 02.12.2020 and it
was published on 02.12.2020 by the State Government in its Gazette,
the UDPCR contain a savings clause to the following effect :
"SAVINGS - Notwithstanding anything contained in
these regulations, any development permission
granted or any development proposal for which any
action is taken under the erstwhile regulations shall
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be valid and continue to be so valid, unless otherwise
specified in these regulations.
Provided that, the words 'action taken' in this
regulation shall also include the issuance of letter for
payment of Development and other Charges issued
after approval of the proposal in principle.
Provided further that if any development permission
has been issued before the date of coming into force of
these regulations and if work is not commenced
within validity period and such permission is not
renewed in time i.e. before expiry of validity period of
one year, then the said development permission shall
be deemed to have been lapsed. However, there is no
bar to further renew the valid permission from year to
year; but such extended period shall in no case exceed
three years.
Provided further that, it shall be permissible for the
owner to -
a) Either continue to develop the project as
approved under the erstwhile regulations in
toto; and for that limited purpose erstwhile
regulation shall remain in force.
"In case the commencement certificate is
issued and the construction is in
progress/part occupancy issued, and if plans
for additional built up area as per erstwhile
regulations are submitted to the Authority
either before or after coming into force of
these regulations by consuming/utilising
FSI / TDR as per the erstwhile regulations;
but could not be sanctioned due to the
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pandemic situation arisen out of COVID-19,
the same may be allowed to be permitted as
per the erstwhile regulations in toto
including the payment of premium/charges,
if the applicant so desires. However, such
cases shall be disposed by the authority
before" 31" January, 2022; else such
applicants will have to submit the fresh
proposal as per these regulations.
Provided further that, if any development
proposal as per erstwhile regulations is
submitted before the date of coming into
force of these regulations either upto
maximum building potential or part of
maximum building potential for which any
action is not taken under the erstwhile
regulations, due to the pandemic situation
arisen out of COVID-19, it shall be
permissible for the owner to continue the
project as per the erstwhile regulations in
toto upto maximum building potential as per
erstwhile regulations, if applicant so desire
and for that limited purpose the erstwhile
regulations shall remain in force. However,
such cases shall be disposed by the authority
before 31st January, 2022 else such
applicants will have to submit the fresh
proposal as per these regulations or
b) Apply for grant of revised permission
under the new regulations, if the project is
on-going and the occupation certificate has
not been granted fully. In such cases,
charges/premium etc. paid earlier against
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the FSI sanctioned, exemptions granted in
side margins, allowing Residential/
Commercial use on the Industrial Zone as
per erstwhile regulations shall be deemed to
have been paid against such earlier
sanctioned FSI/exemptions/allowance of
use. In such cases the charges/premium
under these regulations shall be leviable
against the revised permission and the
charges premium paid earlier shall be
adjusted against the revised charges/
premium under these regulations. Provided
that no refund is permissible in any case.
c) In case the development is started with
due permission before these regulations have
come into force, and if the owner/developer,
at his option, thereafter seeks further
development of plot/layout/buildings as per
these regulations, then the provision of these
regulations shall apply to the balance
development. The development potential of
such entire plot shall be computed as per
these regulations from which the sanctioned
FSI of buildings/part of buildings which are
proposed to be retained as per approved plan
shall be deducted to arrive at the balance
development potential of such plot and
ancillary FSI shall be permissible only on
such balance potential. Such balance
potential can be distributed on one or more
existing, earlier/newly proposed building/s
in a group housing scheme. "In case of
approved layouts in group housing scheme
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with buildings having height between 15 m.
to 24 m., and complying with provisions
mentioned in Regulation No. 1.3(93) (xiv),
NOC from Chief Fire Officer shall not be
necessary, if the applicant is applying for
revised permission under these regulations."
8. It is the claim of the Petitioner that in the wake of the saving
clause, to the aforesaid effect, which permitted the developer to apply
for revised permissions in the case of projects to take the benefits of
FSI sanctioned, exemptions, etc. as per the erstwhile Regulations with
deemed provision, that premium paid thereunder would be treated as
paid under the UDPCR. Reliance is also placed upon the guidelines
issued by the State Government on 01.03.2021, pursuant to the
constitution of Committee under the Chairmanship of Director, Town
Planning Maharashtra State, Pune and it is contended that these
directions were to be construed as the one issued under Clause 1.10 of
the UDPCR and it is the contention of the Petitioner that even these
guidelines permitted the Developer to continue with a mandate of
earlier proposals before 31.07.2021. Further, reliance is also placed
upon the letter addressed by the Urban Development Department to
the President CREDAI-MCHI with regard to conversion of the
approved Rental Housing Project pursuant to the letter dated
29.04.2021 addressed to the Principal Secretary, seeking a clarification
confirming that for projects on Rental Housing wherein development
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agreement and/or conveyance has not been executed in favour of
MMRDA, such projects will be eligible for transition to the UDPCR in
accordance with Regulation 1.5 and the VDD Order dated 01.03.2021.
This communication received a response at the end of the Government
on 21.05.2021 to the following effect :
"... With reference to your above subject letter
regarding conversion of earlier approved rental
housing project as per UDCPR provisions, I am
instructed to inform you that since the rental housing
scheme is the Voluntary Scheme submitted by project
proponent on their own private land, there is no
prohibition to cancel or convert the proposal as per
UDCPR provisions, provided that:
a) There is no Violation of any contractual
obligations if any with the authority, which makes
transition inoperative.
b) The earlier permissions/conversions/benefits
granted by the authorities including Locational
Clearance for the proposal stands withdrawn and
any permissions/approvals/conversions required
in the converted proposal shall be scrutinized and
decided afresh by the authority as per the
provisions of UDCPR and policies in force.
c) As regards refund/adjustment of fees,
premium charges etc. paid earlier, the same shall
be dealt with as per the relevant provisions of
UDCPR and policies.
d) In case of Scheme in progress where land
and/or tenements are already handed over to the
authorities, will not be allowed to claim return of
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the same while converting the scheme as per
UDCPR provisions.
9. In the wake of the aforesaid clarification, the Petitioner through
its Architect, processed its proposal which was scrutinized under
UDCPR Regulation no. 3.4 as well as 6.2.1 and 6.2.3. Since the project
was included in the industrial zone, and it had received approval under
the Rental Housing Scheme, the Architect of the Petitioner, furnished
the plans taking into consideration the FSI 4.0. The proposal clearly
mentioned that part Occupation Certificate has been obtained for
building no. 2 to 5 and even Environmental Clearance is also received
along with the No Objection from the Forest Department since the
project was situated closer to Sanjay Gandhi National Park.
Pursuant thereto, on 09.11.2021, the Municipal Corporation
issued the Commencement Certificate in exercise of power under
Section 44, 45 of the MRTP Act, 1966, which was subject to several
stipulations which are normally included when a building is permitted
to be constructed. The Corporation also addressed a letter to the
Commissioner of MMRDA, highlighting that the total area in the
proposal of MMRDA as Rental Housing Scheme on amalgamated land
of 100352.81 square metres and out of the same, 56,113.00 square
metres was proposed for MMRDA Rental Housing Scheme for which
the location clearance was obtained in 2009. The Government issued
permission to the Petitioner and the Architect for construction, with
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approved plans for 4.00 FSI and with reference to such permission
under 3.00 FSI, 26 building of self component and eight buildings of
rental component for 1.00 FSI are to be developed. Mentioning that
the Commencement Certificate for building permission was issued and
part of the Occupation Certificate has been issued for the commercial
building and building no. 5 on 26.11.2019, with the enforcement of
UDCPR Regulations with reference to clause 1.5 since an application
was made to issue amended building permission, a No Objection
Certificate was prayed for to develop the building as per UDCPR.
10. However, on 31.05.2021, MMRDA addressed a communication
to the Municipal Commissioner, stating that in the wake of clarification
by the Urban Development Department by 21.05.2021, the scheme can
be converted from Rental Housing Scheme to UDCPR as the applicant
has not executed agreement with MMRDA and therefore it has no
objection for its conversion under the UDCPR.
11. On 05.01.2022, the proposal of the Petitioner was returned by
stating that the necessary proposal is to be submitted as per the check
list under the approved UDCPR and the Government Circular which
should be properly paginated.
12. This constrained the Petitioner to approach this Court by filing
Writ Petition No. 1032 of 2022, seeking a mandamus for quashing and
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setting aside of the aforesaid communication or in the alternative,
praying for issuance of IOD and full CC for the entire development plan
as per revised plan, submitted on 13.09.2021 under the UDCPR 2020.
13. It is worth to note that the clarification issued by the State
Government on 21.05.2021 was stayed by the Urban Development
Department on 04.02.2022 but on 20.08.2024, the Deputy Secretary of
Urban Development communicated to the Metropolitan Commissioner
that the clarification issued by the State Government on 21.05.2021 is
cancelled/revoked, which had clarified that the earlier sanctioned
Rental Housing Schemes are eligible for conversion subject to the
terms and conditions specified in Clause 1.5 (Savings) of UDCPR,
sanctioned on 02.12.2020.
14. When this was pointed out to us in the Writ Petition, the learned
Senior Counsel Mr. Godbole agreed to advance his submissions without
the aid of this clarification and we permitted him to do so. We directed
the Corporation to make it stand clear before us in light of the
withdrawal of the communication by the State Government.
15. On 07.10.2024, the Corporation addressed a communication to
the Petitioners in regard to its proposal seeking construction
permission along with revised plan approval as per the UDCPR
whereby it clarified that the Rental Housing Scheme was implemented
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by the Government in Mumbai Metropolitan Region, which permitted
FSI of 4.0 with a condition that the units constructed on 1.0 FSI along
with the rental units shall be mandatorily transferred free of cost to
MMRDA. Though the Government converted the Rental Scheme into
affordable housing scheme in the year 2014, the Petitioner developer
continued under the Rental Scheme and by obtaining extension from
MMRDA, completed constructions of the buildings under sale-able
components and started occupying the buildings but the RCC
construction of buildings that were to be transferred free of costs to
MMRDA was not done.
It was further stated that the developer in the context of the
clarification of the Government dated 21.05.2021 submitted the
proposal seeking development permission for EWS/LIG under the
provision of UDCPR instead of pre-approved rental scheme which was
rejected. Stay was granted by the UD to its clarification dated
21.05.2021 which was cancelled on 20.08.2024 and therefore it is now
mandatory for the developer to complete the proposal under the pre-
approved Housing Scheme and since the project is now under
completion in form of a special scheme it cannot be converted under
the UDCPR as it is obligatory on part of the Developer to transfer the
eight buildings constructed by taking benefit of the scheme, to the
MMRDA.
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16. In wake of the aforesaid, the learned Senior Counsel Mr. Godbole
has urged before us that the benefit of the UDCPR is denied to the
Petitioner despite the fact that it had sought revised permission for the
balance work to be carried out and as per Clause 1.5, which is a Saving
Clause, if the project is "ongoing" and the Occupation Certificate has
not been granted fully, then the Petitioner is allowed to take benefit of
Clause (b) of Clause 1.5. It is also submitted that if the development is
started with due permission before the UDCPR came into force and if
the Developer seek further development as per the new Regulation,
then the Regulation shall apply to the balanced development and
development potential of such entire plot shall be computed as per the
Regulations from which the sanctioned FSI of building/part of the
building which are proposed to be retained shall be deducted to arrive
at a development potential of such plot. According to Mr. Godbole, the
Petitioner is entitled for this benefit as his project is ongoing and even
according to the Corporation, full Occupation Certificate is not received
except a small part which in any way cannot be a ground for refusing
the conversion of the project of the Petitioner under UDCPR. It is
urged before us that as per Clause (b) of Regulation 1.5 of UDCPR, the
developer has an unfettered right to do so and he would submit that
several schemes undertaken in accordance with erstwhile Regulations
were permitted to migrate to UDCPR and no such fetters have been
imposed. It is also his submission that on account of the Government
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directive dated 14.01.2021, reduction of fifty percent in such premium
was a matter of right and in fact while disposing off the Writ Petition
No.103 of 2022 on 04.02.2022, this Court had clarified that the fresh
proposal filed by the Petitioner shall be decided by the Corporation by
treating it as a proposal received prior to 31.12.2021. It is also his case
that all the requirements for grant of deemed approval under Section
45(5) of the MRTP Act, 1966 have been fulfilled and, therefore, the
proposal for conversion is deemed to have been approved and could not
have been rejected on the first occasion on 05.01.2022 on the ground
that there was no pagination and when the proposal was submitted
once again, the deeming fiction operates w.e.f 30.11.2021, for all
benefits with fifty percent premium under UDCPR in terms of the
Notification dated 14.01.2021.
17. The reliefs in the Petition are strongly opposed by Mr. Bubna,
learned Counsel appearing for the Corporation as well as the learned
Additional Government Pleader representing the State Government. It
is the specific stand of the Municipal Corporation that in terms of the
Order passed by the High Court, the Petitioner submitted a fresh
proposal and this was to be treated as a proposal submitted before
31.12.2021 and accordingly the fresh proposal was submitted, which on
due consideration was rejected. A specific stand is adopted by the
Corporation, to the effect that total thirteen construction projects were
sanctioned under the Rental Housing Scheme and out of them ten
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projects are completed and almost 4900 tenements have been handed
over to MMRDA. It is submitted that out of the remaining three
projects, almost 4800 tenements are yet to be handed over to MMRDA.
It is specific of the Corporation that the Petitioner availed the benefit of
Rental Housing Scheme of the State Government and, on account of
which, he was entitled to avail FSI of four against the FSI of one and
therefore when he has taken benefit of the scheme, he must discharge
his obligation, which require him to hand over eight buildings
consisting of G+17 floors having 2967 residential tenements and 82
commercial units, aggregating to 3049 units out of 4800 units, free of
cost.
It is stated by the Corporation on oath that the Petitioner has
carried out RCC construction of eight buildings but have not finished
the tenements and kept them incomplete though he has completed the
sale-able components in the scheme by using the additional FSI scheme
on account of the Rental Housing Scheme but has not been granted
Occupancy Certificates for the said buildings as he is yet to hand over
the tenements to MMRDA. It is specific case of the Corporation that
the Petitioner cannot be permitted to renege out and refuse its
discharge of contractual obligation.
18. The State Government through the Joint Director of Town
Planning has also filed an affidavit wherein it make reference to the
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UDCPR sanctioned under Section 37(1)(A)(c) and Section 20(4) of the
MRTP Act on 02.12.2020, which came into force from 03.12.2020. By
relying upon Clause (b) and (c) of Regulation 1.5, the State Government
has clarified that though the Respondent no.1 had issued a letter to the
President CREDAI-MCHI on 21.05.2021 in respect of the policy under
Regulation 1.5 of UDCPR, it noticed the misinterpretation of the said
letter as it would have resulted in a situation that the Rental units or
the flats which are to be handed over to the Planning Authority will not
be handed over and dual benefits will be claimed by the land
owner/developer, it was therefore constrained to withdraw this letter
on 04.02.2022. Reliance is placed upon Sub-Clause (5) of Clause 1.9 of
UDCPR to submit that if any question arises as per interpretation of
any of these demolitions, the matter shall be referred to the State
Government and the decision of the State Government shall be final
and binding.
19. On hearing the rival contentions advanced before us, it is to be
noted that the Rental Housing Scheme was notified by the State
Government in the year 2008 and MMRDA was appointed as a
Recommending Authority and the respective Municipal Corporation
within whose jurisdiction the land was located, as the authority
implementing the scheme, by scrutinizing and granting the building
planning approval. The Rental Housing Scheme announced by the
State under Section 154 of the MRTP Act, 1966 was also implemented
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by the Mira Bhayander Municipal Corporation and the schemes
received sanction from the State Government under Section 20(4) of
the MRTP Act, 1966.
20. The Petitioner M/s. Neelkamal Realtors, a company engaged in
the business of development and construction, submitted a proposal to
the Respondent No.2-Corporation for development of the entire lay out
admeasuring 1,01,248.00 square metres for development of its part
land under the Rental Housing Scheme and part of the land as per the
prevailing Regulations of Mira Bhayander Municipal Corporation.
Location Clearance was granted for the part land on which the Rental
Housing Scheme was proposed by MMRDA. The Planning Authority
i.e. MBMC scrutinized the building plans and accorded
Commencement Certificate (CC) on entire lay out on 13.11.2009. The
CC issued was for an amalgamated lay out, which was partly approved
under the then prevailing Regulations of the Corporation and partly
under the Rental Housing Scheme. Though the built up area potential
as per the prevailing Regulations was basic FSI 1.0, under the Rental
Housing Scheme over all FSI 4.0 was sanctioned under which built up
area as per 1.0 FSI was required to be constructed and handed over to
MMRDA and balance 3.0 FSI was the sale component.
The Rental Housing Scheme which was proposed on the plot of
50,202.81 square metres, made a built up area of 1.61,994.58 square
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metres available under the sale component whereas a built up area to
50,202.81 square metres was to be handed over to MMRDA as per the
Scheme. Admittedly, the Petitioner was under an obligation to
construct this area and hand it over to MMRDA.
It may be true that the Rental Housing Scheme was ultimately
scrapped in the year 2013-14 and the UDCPR 2020 clearly reflect that
no project under Rental Housing Scheme is permitted after 30.11.2013.
Though the Rental Housing Scheme was scrapped, however, the
ongoing schemes were allowed to continue and taking advantage of the
FSI made available, the Petitioner continued under the said Scheme
and constructed the sale-able component which included 26 buildings
and even handed over the possession of the said flats/units to the
prospective purchasers. Though the scheme contemplated the
implementation of the two wings of the project simultaneously, the
Petitioner did not complete the construction of the eight buildings
which were to be handed over to MMRDA but enjoyed full benefit of 3
FSI by constructing 26 buildings as its sale-able component. When it
came to constructing the buildings on the basis of one FSI, to be
handed over to MMRDA, it was slow in undertaking the construction
and in the meantime on UDCPR 2020 coming into force, is attempting
to take benefit of the Saving Clause by submitting that its project is
"ongoing" and the Occupation Certificate has not been granted fully.
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He is trying to take benefit of Clause (b) of Regulation 1.5 of the
UDCPR which permit in case of an ongoing project, the charges of the
premium, etc. paid earlier against the FSI sanctioned, exemptions
granted in side margins, allowing Residential/Commercial use in the
Industrial Zone as per erstwhile regulations as being deemed to have
been paid.
On availing the Rental Housing Scheme, for which the locational
clearance was obtained by the Petitioner on 26.06.2009 and the
Commencement Certificate granted on 01.03.2009, he had to construct
34 buildings. As per the prevailing Regulations, he was entitled for one
FSI but for availing four FSI, he could put to use only the buildings
constructed by use of three FSI and the building constructed on one FSI
portion, he had to surrender.
Though the Petitioner continued to enjoy four FSI and despite
the Rental Housing Scheme abolished in the year 2013-14, he
continued with the construction of the buildings by use of three FSI and
sold the units in 26 buildings, the Petitioner did not convert himself
into a new scheme since he wanted to enjoy the fruits of the additional
FSI.
Merely because the actual construction activity is ongoing, do not
make us believe that it is an "ongoing" construction when the
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Petitioner deliberately dragged its feet in completing the eight buildings
which it had to transfer the MMRDA. After availing the full benefit of
the Rental Housing Scheme, now we will not permit the Petitioner to
turn around and take benefit under the UDCPR and then make an
attempt to wriggle out of the Rental Housing Schemes by saying that it
is already scrapped by the State Government. In fact without handing
over the units of the MMRDA, the Petitioner cannot even enjoy the
benefit of the buildings which he had constructed by availing three FSI
and he has made sheer profits by selling the units in the 26 buildings
but has failed to satisfy the reciprocal obligation to construct eight
other buildings by availing FSI and hand it over to MMRDA. It is a
specific stand of the Corporation that fifty percent exemption was
granted from development charges on account of COVID but this
cannot be extended now and particularly when the project is not an
"ongoing" project. It may be true that the eight buildings shall not go
to the Corporation but they must go to MMRDA and MMRDA is
misunderstood to have stated that it do not need the said buildings and
for this purpose, reliance is placed by Mr. Godbole on the
communication by the MMRDA which has accorded No Objection for
conversion of the scheme with a conscious mind that the units were to
be allotted to it.
We may not be concerned about what MMRDA says as we find
that for availing the benefit of four FSI, the scheme contemplated of
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handing over of eight buildings for rental accommodation and
ultimately, it will go to the benefit of those who lack housing
accommodation and may be put to use either by Corporation or by
MMRDA. The specific stand of the Corporation is that the Petitioner
has been dishonest as he availed the profits through the sale-able units
but now is avoiding to hand over almost 3000 flats as per the reciprocal
obligation.
At one point of time we have heard Mr. Godbole stating that he
will demolish the eight buildings but we do not think that this is going
to serve any purpose as ultimately, the scheme under which the benefit
was availed by the Petitioner was for larger public benefits and
depriving the MMRDA of the same would be nothing but loss to the
public exchequer. As of now, the State Government has joined hands
with the Corporation as it has withdrawn it clarification which would
have result in the consequences that would have precluded the
Developers/Owners availing the benefit of Rental Housing Scheme
from handing over such portion of the component which was to go to
the benefit of public exchequer. According to the State Government,
the units in the buildings constructed on the sale-able components also
becomes illegal because there is no discharge of obligation by the
developer which was reciprocal i.e. construction of eight more
buildings with the flats being handed over to MMRDA. In that sense,
the buildings are illegal but we do not want to encourage this illegality
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but compel the Petitioner to discharge its obligation of completing the
eight building and handing it over as per the original scheme. It is for
this reason, we are not ready to construe that the scheme of the
Petitioner is an "ongoing" project as we will not permit him to take
benefits of its own illegality and now wriggle out on its obligation on an
innocuous prayer of securing benefit of UDCPR specific Clauses (b) and
(c) of the Saving Clause 1.5.
21. We find no merit and substance in this Writ Petition, the Petition
is dismissed.
MANJUSHA DESHPANDE, J BHARATI DANGRE, J
ANDREZA RODRIGUES Digitally signed by ANDREZA
RODRIGUES EPEREIRA
EPEREIRA Date: 2025.04.15 15:05:46 +05'30'
7th April 2025
