Bombay High Court
Radha Madhav Developers Thr. Partner, ... vs State Of Maha., Thr. Secy., Urban ... on 15 September, 2025
Author: M. S. Jawalkar
Bench: M. S. Jawalkar
2025:BHC-NAG:9140-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4828 OF 2022
PETITIONER : Radha Madhav Developers, Through its
Partner, Mr.Rajesh Navranglal Agarwal,
Aged about 52 years, Occu.: Business, R/o
Navrang, Vrindavan, Jamtha, Nagpur-
441122.
Having registered office at - 7th Floor, B-
Wing, Devki, Vrindavan, Jamtha, Nagpur-
441122.
-Versus-
RESPONDENTS : 1. State of Maharashtra, Through its
Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2. Nagpur Metropolitan Regional
Development Authority, Through its
Commissioner, Station Road, Sadar,
Nagpur-01.
3. Commissioner, Nagpur Metropolitan
Regional Development Authority, Station
Road, Sadar, Nagpur-01.
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Mr.Madhur Deo, Advocate for the petitioner
Mr.N. R. Patil, AGP for the respondent-State.
Mr.Girish A. Kunte, Advocate for respondent Nos.2 & 3.
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WRIT PETITION NO. 1890 OF 2023
PETITIONER : Radha Madhav Developers, Through its
Partner, Mr.Rajesh Navranglal Agarwal,
Aged about 52 years, Occu.: Business, R/o
Navrang, Vrindavan, Jamtha, Nagpur-
441122.
Having registered office at - 7th Floor, B-
Wing, Devki, Vrindavan, Jamtha, Nagpur-
441122.
-Versus-
RESPONDENTS : 1. State of Maharashtra, Through its
Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2. Nagpur Metropolitan Regional
Development Authority, Through its
Commissioner, Station Road, Sadar,
Nagpur-01.
3. Commissioner, Nagpur Metropolitan
Regional Development Authority, Station
Road, Sadar, Nagpur-01.
-----------------------------------------------------------------------------
Mr.Madhur Deo, Advocate for the petitioner
Mr.N. R. Patil, AGP for the respondent-State.
Mr.Girish A. Kunte, Advocate for respondent Nos.2 & 3.
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WRIT PETITION NO. 5386 OF 2022
PETITIONER : Radha Madhav Developers, Through its
Partner, Mr.Rajesh Navranglal Agarwal,
Aged about 52 years, Occu.: Business, R/o
Navrang, Vrindavan, Jamtha, Nagpur-
441122.
Having registered office at - 7th Floor, B-
Wing, Devki, Vrindavan, Jamtha, Nagpur-
441122.
-Versus-
RESPONDENTS : 1. State of Maharashtra, Through its
Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2. Nagpur Metropolitan Regional
Development Authority, Through its
Commissioner, Station Road, Sadar,
Nagpur-01.
3. Commissioner, Nagpur Metropolitan
Regional Development Authority, Station
Road, Sadar, Nagpur-01.
-----------------------------------------------------------------------------
Mr.Madhur Deo, Advocate for the petitioner
Mr.N. R. Patil, AGP for the respondent-State.
Mr.Girish A. Kunte, Advocate for respondent Nos.2 & 3.
-----------------------------------------------------------------------------
CORAM: SMT. M. S. JAWALKAR &
PRAVIN S. PATIL, JJ.
CLOSED ON : 6TH AUGUST, 2025
PRONOUNCED ON: 15TH SEPTEMBER, 2025
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JUDGMENT (Per : Smt. M. S. Jawalkar, J.)
Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith. Heard finally with
the consent of the learned counsel for the parties.
3. Since similar issue is involved in these petitions, the same
are decided by this common judgment.
4. By these petitions, the petitioner seeks declaration that levy
of infrastructure cost by the respondent No.2 in pursuance of Sanction
Modification in final development plan prepared by respondent No.2
is violative of Articles 14 and 265 of the Constitution of India and is
also de hors the provisions of Maharashtra Regional Town Planning
Act, 1966. The petitioner also seeks declaration that the chart
uploaded on the website of respondent No.2, which lays down the
rate at which the infrastructure cost is to be imposed with effect from
01/01/2021 is bad in the eyes of law and is required to be struck
down. The petitioner also seeks quashing and setting aside demand to
the extent that it levies infrastructure development cost and STP
charges.
5. The petitioner is a developer and owned agricultural land
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bearing Survey Nos.Nos.248, 257/2, 258/2, 258/1G and 258/1K (in
Writ Petition Nos.4828/2022 and 1890/2023) and Survey
Nos.246/Part 1, 246/Part 3, 253 (Writ Petition No.5386/2022), all
surveys situated at Mouza Jamtha, Nagpur (Rural).
6. The main contention of the petitioner is that on
18/06/2012, agreement came to be executed between Nagpur
Improvement Trust (for short "NIT") and the petitioner. As per that
agreement, the petitioner was permitted to develop the said property
as per the layout plan sanctioned by the NIT. The petitioner was put
under an obligation to provide all the amenities at the said property
at its own cost. Therefore, there is no question of any development
cost or infrastructure cost as demanded by the Nagpur Metropolitan
Region Development Authority (for short "NMRDA"). In the year
2015, the NIT prepared a draft development plan for Nagpur
Metropolitan Area. As per the said draft development plan, the
residential zone (hereinafter referred to as 'RZ' for the sake of brevity)
was further subdivided into four zones i.e. RZ-1, RZ-2, RZ-3 and RZ-
4. The RZ-1 was granted FSI (Floor Space Index) of 1.25, RZ-2 was
granted FSI of 2, RZ-3 was granted FSI of 0.75 and RZ-4 was granted
FSI of 0.5. As per the draft development plan, the said property was
categorized as RZ-4. Earlier, the FSI of 1.1 was prescribed for RZ-4. It
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was informed by the NIT that by virtue of saving clause 1.4, the
petitioner was permitted to consume FSI, which was allowed to be
used before the draft development plan was prepared. Vide demand
letter dated 19/08/2019, the respondent No.2 has demanded a sum
of Rs.54,90,258/- towards the infrastructure cost. The petitioner
raised objection dated 12/09/2019, raising protest against the
imposition of infrastructure cost. Its request/representation came to
be rejected on 09/04/2021. It was informed by the Assistant
Engineer, NMRDA vide communication dated 20/11/2019 that
infrastructure cost is levied as per the provisions of law and was
necessary to levy such infrastructure costs. It is contention of the
petitioner that levy of infrastructure cost is illegal and is without any
authority of law. It is further contention that one of the most
important components of taxes is rate of tax at which the same is
imposed. In the present matter, there is no rate prescribed for levy of
infrastructure cost. There is fundamental defect in levy of
infrastructure cost. Even if it is assumed that it is a fee, it is well
settled law that in cases where fee is levied, there has to be
corresponding service which needs to be provided as a quid pro quo.
In the present case there is nothing on record to indicate that there is
corresponding service, which has been provided by respondent No.2.
In the present case, the infrastructure and all amenities on the layout
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is provided by the petitioner. Therefore, demand of infrastructure
cost is illegal. It is further contention that levy of infrastructure cost
amounts to double taxation. The petitioner has already been
demanded an amount of Rs.11,00,041/- towards the land
development fund for the fund created under section 124-J of the Act,
which was already paid. Accordingly, prayer for holding and
declaring that levy of infrastructure cost by the respondent No.2 in
pursuance of sanction modification in sanction draft development
plan prepared by the respondent No.2 is violative of Articles 14 and
265 of the Constitution of India and de hors the provisions of
Maharashtra Regional and Town Planning Act.
7. In Writ Petition No.4828/2022, the petitioner has obtained
Building Permit dated 02/04/2013, which pertains to Plot No.7. On
14/07/2014, the petitioner applied for revision of the building
permit. Thereafter on 08/03/2019, the petitioner moved application
to the respondent No.2 for revision of the building permit. The
respondent No.2 on 19/08/2019 issued a demand of Rs.84,11,278/-,
out of which a sum of Rs.54,90,258/- was towards the infrastructure
cost. Hence, the petitioner is aggrieved by imposition of infrastructure
cost.
8. In Writ Petition No.1890/2023, the petitioner has obtained
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Building Permit, which pertains to Plot No.5. The petitioner applied
for revision of the building permit and the building permit was
revised in the years 2013, 2014 and finally in the year 2018.
Thereafter on 31/03/2021, the petitioner moved application to the
respondent No.2 for revision of the building permit. In response to the
said application, the respondent No.2 on 29/09/2022 issued a
demand of Rs.94,08,297/- out of which a sum of Rs.73,24,095/- was
towards the infrastructure cost and Rs.9,34,100/- was towards STP
charges. Hence, the petitioner is aggrieved by imposition of
infrastructure cost and STP charges.
9. In Writ Petition No.5386/2022, the petitioner moved an
application to the respondent No.2 seeking revision of the layout
permit. In response to the said application, the respondent No.2
issued a demand of Rs.6,97,89,600/- towards infrastructure cost.
Therefore, the petitioner is aggrieved by the imposition of
infrastructure cost.
10. In support of the case, the learned counsel for the petitioner
relied on the following citations:
(i) Amit Maru & anr. vs State of Maharashtra & anr., 2010 (4) Bom.
C.R. 568 (Paras-38, 39, 40, 41, 43, 45, 46 & 49) ,
(ii) Buildarch, Mumbai & anr. v. Municipal Corporation of Greater
Mumbai & oths., 2010(5) Mh.L.J. 327 (Paras-1, 17, 19),
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(iii) Solapur Promoters & Builders Association Society & anr. v. State
of Maharashtra & oths., 2005(4) Mh.L.J. 445 (Para-7),
(iv) J. Jayalalitha & oths v. State of Karnataka & oths., (2014) 2 SCC
401 (Para-34),
(v) Ahmedabad Urban Development Authority v. Sharadkumar
Jayantikumar Pasawalla & oths., (1992) 3 SCC 285 (Paras-7, 8),
(vi) CIT v. Mcdowell & Co.Ltd. (2009) 10 SCC 755 (Para-21)
(vii) Tata Iron & Steel Co.Ltd. v. State of Bihar, (2018) 12 SCC 107
(Para-20)
(viii) Ramon Distilleries Ltd, v. State Of Maharashtra, 2023 (1) Mh.L.J.
(Paras-7, 10),
(ix) Bilt Graphic Paper Products Ltd.v. State of Maharashtra, 2023(3)
Mh.L.J. 130 (Para-18),
(x) Sunil Bhupendradeo Thapar v. State of Maharashtra, 2023(3)
Mh.L.J. 683 (Paras-22, 32, 23),
(xi) Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial & Investment
Corpn., 2021 SCC OnLine 960 (Para-32).
(xii) Smt. Sharayu Ashok Gokhale and others v. The Nagpur
Municipal Corporation, Nagpur and others (Writ Petition N.
994/2011) (Decision Dated 05/08/2022).
11. The respondent Nos.2 and 3 submitted that as the
petitioner approached the office of NMRDA with a revised plan of the
earlier building permit issued on 03/04/2013, therefore, the demand
note for infrastructure charges issued to the petitioner vide demand
note dated 20/08/2019 is just and proper. In revised plan, it is
proposed that built up area would be about 20686.970 sq.mtrs.
Accordingly, the demand note issued by the respondents is just and
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proper. The infrastructure cost is not for internal development of the
layout, but it is for outer development for the purpose of construction
of road, other services in order to provide outer facilities to the
developer. For Nagpur Metropolitan Area, the State Government has
sanctioned D.C.P.R. 2018 along with Substantial Modification (SM)
and Excluded Part (EP) vide its resolution dated 05/01/2018. The
infrastructure cost as decided by the Authorities shall be recovered
while issuing development permission in RZ-3 and RZ-4. There was
development agreement executed on 18/06/2012. The condition-14
of the said agreement reads thus-
"(14)The party No.2 shall not sub-divide the land in this layout
without obtaining prior written permission of the Nagpur
Improvement Trust, land shall be used for residential use
and for the purposes only as shown and specified in the
layout plan appended to this agreement. The buildings on
land in this layout shall be constructed after getting the
building plans sanctioned in accordance with the zoning
and development control regulation for the regional
plan/A, B & C Municipal Council as may be applicable and
in force from time to time and the latrines shall be flushed
ones and connected to the sewers.
The party No.2 shall agree that, any amount due to the
Nagpur Improvement Trust on account of development
works taken up by the Nagpur Improvement Trust as per
the terms of this agreement or on any account, that the
due amount shall be a first charge on land and shall be
recovered by the Nagpur Improvement Trust as per the
law. The party No.2 shall recite this and other terms in
the sale deed/s of the layout/land that, shall be sold by
the party No.2 and shall be binding on the purchasers."
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Therefore, it is not open for the petitioner to dispute the
same by filing petitions. As per sanction modification by the State
Government on 05/01/2018, following clause provides:
"Residential Zone viz. R-1, R-2, R-3 and R-4
proposed in the submitted draft Development Plan is merge into
Common Residential Zone (R). The development in this
common Residential Zone is permissible as per the
Development Control and Promotion Regulations sanctions for
the NMRDA area. However the Infrastructure Cost as decided
by the Authority shall be recovered while issuing development
permission in R3 and R 4 Zone."
12. The respondents made it clear as per development
agreement dated 18/06/2012, that all the internal development is to
be done by the petitioner in Mouza Jamtha. The total expenditure
incurred by the answering respondents on development work is about
Rs.17.36 Crores and again total development works of Rs.5.43 Crores
are under progress. The petitioner has requested for providing 1.5
MLD water for residents of layout at Mouza Jamtha. The pipeline laid
by NMRDA from Shankarpur to Sondapar. For that purpose, the
development work of Rs.18.00 Crores are required to be provided for
water pipeline. As the petitioner revised building plan twice, the
infrastructure cost was demanded. It was pointed out that the
petitioner on affidavit agreed to bear entire cost for laying of water
pipeline and all other infrastructure for outer township project at
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Jamtha. The provisions of recovery of infrastructure cost is sanctioned
by the Government and it is not development charge. It is the
infrastructure cost recovered for providing infrastructure facilities in
the Nagpur Metropolitan Region Development Authority area, which
is in the interest of public at large. If it is interfered at the behest of
the petitioner, it may amount to interference in the policy decision of
the State Government and may also result financial loss to the
Planning Authority as well as the State Government. The
infrastructure facilities such as road, water supply and sewer line upto
the layout of the petitioner are to be provided by the Authority, which
requires substantial expenditure.
13. The learned counsel for the respondents relied on the
following judgments to support their case:
(i) Joint Action Committee of Airline v. Director General of Civil
Aviation & others, (2011) 5 SCC 435 (Paras-11, 12),
(ii) State of U.P. v. Karunesh Kumar, 2022 SCC OnLine SC 1706
(Para-22),
(iii) Yamuna Expressway Industrial Development Authority ETC v.
Shakuntala Education & Welfare Society, 2022 SCC OnLine (SC)
655 (Para-65-Note),
(iv) Ratilal Pannachand Gandhi v. State of Bombay, AIR 1954 SC 388
(Para-22),
(v) Shri Krishna Das V/s. Town Area Committee {1990 (3) SCC 645}
(vi) State of U.P. v. Malti Kaul, (1996) 10 SCC 425 (Paras-13 and 15),
(vii) New Okhla Industrial Development Authority v. Ravindra Kumar
Singhvi, 2022 LiveLaw SC 184 (Paras-17 and 18),
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(viii) Narayanrao Jagobaji Gowande Public Trust v. State of
Maharashtra, (2016) 4 SCC 443 (Paras-39, 47),
(ix) The Chief Engineer Water Resources Department v. Rattan India
Power Ltd., 2023 LiveLaw (SC) 32 (Para-6),
(x) Vijay Nanikram Bhatia v. State of Maharashtra, 2023 SCC OnLine
Bom 2707, (Paras-25 to 29).
14. Heard respective parties at length, perused the documents
placed on record and considered the citations relied on by the
respective parties.
15. There is an agreement executed on 18/06/2012 between
the petitioner and the NIT. From this agreement, it appears that the
internal development would be carried out at the cost of petitioner,
whereas the peripheral development has to be carried out by the NIT,
subject to peripheral development charges, which may be assessed
from the plot in accordance with the provisions of the Nagpur
Improvement Trust Act and Maharashtra Regional and Town Planning
Act. The petitioner applied for revised plan twice. In view of second
revised plan, demand note for infrastructure charges (as per SM-1)
and other required building charges was issued to the petitioner vide
demand note dated 19/08/2019. It is contended by the petitioner that
levy of infrastructure cost is violative of Article 265 of the
Constitution of India, which provides that no tax shall be levied
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except by authority of law. The petitioner relied on Commissioner of
Income Tax v. Mcdowell & Co.Ltd. (supra), wherein Hon'ble Apex
Court held in para-22 as under:
"22. Under Article 366(28) "Taxation" has been defined
to include the imposition of any tax or impost whether general
or local or special and tax shall be construed accordingly.
"Impost" means compulsory levy. The well-known and well-
settled characteristic of "tax" in its wider sense includes all
imposts. Imposts in the context have following characteristics:
(i) The power to tax is an incident of sovereignty.
(ii) "Law" in the context of Article 265 means an
Act of legislature and cannot comprise an executive order or
rule without express statutory authority.
(iii) The term "tax" under Article 265 read with
Article 366(28) includes imposts of every kind viz. tax, duty,
cess or fees.
(iv) As an incident of sovereignty and in the
nature of compulsory exaction, a liability founded on
principle of contract cannot be a "tax" in its technical sense
as an impost, general, local or special."
Relying on the judgment of Commissioner of Income Tax v.
McDowell (supra), the Hon'ble Apex Court in Tata Iron & Steel
Co.Ltd. v. State of Bihar (supra) has taken a similar view.
16. In Ramon Distilleries Ltd, v. State Of Maharashtra (Writ
Petition No.5011/2009) dated 16/06/2022 (supra), wherein it is
held that collection of any fee or tax ought to be by authority of law
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in view of Article 265. In Ahemadabad Urban Development v.
Sharadkumar Jayantikumar Pasawalla (supra), wherein the Hon'ble
Apex Court held that there has to be an express provision under the
Statute to charge tax or fee and there is no scope of implied authority
for imposition of tax or fee. It is contention of the petitioner that
section 31(1) of the Maharashtra Regional and Town Planning Act,
nowhere permits levy of infrastructure cost. Thus, levy of
infrastructure cost is without any authority of law and violative of
Article 265 of the Constitution of India. As against this, the
respondent Nos.2 and 3 submitted that the infrastructure cost is
levied in terms of section 22(m) of the Maharashtra Regional and
Town Planning Act and this made to be levied for special permission
granted by the Government while sanctioning the development plan
and regulations due to which, the petitioner has become entitled for
FSI as permissible in RZ-1 and RZ-2. For the sake of convenience
section 22(m) of the MRTP Act is reproduced as under:
"22. Contents of Development Plan.
- A Development plan shall generally indicate the manner in
which the use of land in the area of a Planning Authority shall be
regulated, and also indicate the manner in which the
development of land therein shall be carried out. In particular, it
shall provide so far as may be necessary for all or any of the
following matters, that is to say,-
(a) to (l) ...............
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(m) provisions for permission to be granted for controlling and
regulating the use and development of land within the
jurisdiction of a local authority 2[including imposition of fees,
charges and premium, at such rate as may be fixed, by the State
Government or the Planning Authority, from time to time, for
grant of an additional Floor Space Index or for the special
permissions or for the use of discretionary powers under the
relevant Development Control Regulations, and also for
imposition of conditions and restrictions in regard to the open
space to be maintained about buildings, the percentage of
building area for a plot, the location, number, size, height,
number of storeys and character of buildings and density of
population allowed in a specified area, the use and purposes to
which buildings or specified areas of land may or may not be
appropriated, the sub-division of plots the discontinuance of
objectionable users of land in any area in reasonable periods,
parking space and loading and unloading space for any building
and the sizes of projections and advertisement signs and
boardings and other matters as may be considered necessary for
carrying out the objects of this Act."
Section 31(1) of the MRTP Act also empowers to sanction
draft development plan, which reads as under:-
"31. Sanction to draft Development plan.
Subject to the provisions of this section, and not later than [six
months] [These words were substituted for the words 'one year
by Maharashtra 10 of 2011, Section 9(1)(a), (w.e.f. 5-4-
2011).] from the date of receipt of such plan from the Planning
Authority, or as the case may be, from the said Officer, [* *
*] [The words 'or not later than such further period not
exceeding twelve months as it may decide' were deleted by
Maharashtra 6 of 1976, Section 12(a).] the State Government
may, after consulting the Director of Town Planning by
notification in the Official Gazette sanction the draft
Development plan submitted to it for the whole area, or
separately for any part thereof, either without modification, or
subject to such modifications as it may consider proper or return
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the draft Development plan to the Planning Authority or as the
case may be, the said Officer for modifying the plan as it may
direct or refuse to accord sanction and direct the Planning
Authority or the said Officer to prepare a fresh Development
plan:
[Provided that, the State Government may, if it thinks fit,
whether the said period has expired or not, extend from time to
time, by a notification in the Official Gazette, the period for
sanctioning the draft Development plan or refusing to accord
sanction thereto, by such further period not exceeding,-(i)twelve
months, in case of a Municipal Corporation having a population
of ten lakhs or more, as per the latest census figures, and (ii) six
months, in any other case, as may be specified in such
notification:]
[Provided further that, where the modifications proposed to be
made by the State Government or submitted by the Planning
Authority under section 34 and proposed to be approved by the
State Government without any further change are of a
substantial nature with respect to the draft Development plan
published under section 26, the Government shall publish a
notice in the Official Gazette and also in not less than two local
newspapers inviting objections and suggestions from any person
in respect of the proposed modifications within a period of one
month, from the date of such notice.] [This proviso was
substituted by Maharashtra 10 of 2011, Section 9(1)(c), (w.e.f.
5-4-2011).]
17. As the provision made in sanction modification for charging
infrastructure cost meant for peripheral development, which is
permissible in terms of section 22(m) read with section 31(1) of the
MRTP Act along with UDCPR-2020 by Regulation No.4.2(i)(v).
18. It is necessary to consider that Section 22 of the MRTP Act
mandates that factors to be considered by the Planning Authority
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while sanctioning the Development Plan under section 31(1) of the
Act.
19. There is no challenge to the validity of section 31(1), what
is argued is that the imposition of infrastructure cost is beyond the
scope of section 22(m).
20. In our considered opinion, the plea is untenable for the
reason that section 22(m) lays down the factors and parameters to be
considered while sanctioning a development plan, which include
imposition of fees, charges and premium at such rate as may be fixed
for the purpose of granting approvals/concessions as indicated
therein. Such an imposition is clearly within the legislative
competence of the legislature as it can provide for composition of
fees, charges and premium for benefits to be accorded to a party
while granting sanction. There is also keeping in mind that funds are
required to be generated for the overall development of the entire
locality and not a particular layout. While the other provisions of the
MRTP Act such as section 124A provides for levy of development
charge, the same is restricted for the use, change of use of any
building or land or development of any land or building, for which
permission is required under the Act. It by the language used in a
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change restricted for a particular usage or its change of specific piece
or parcel of land. Infrastructure charge/cost on the other hand,
contemplates the overall development of the entire locality, which
would indicate integration of sewer, water, electricity, road, storm
water drains between several layouts, to form a homogeneous
network and therefore is a charge which cannot be equated with a
development charge as levied under section 124A of the MRTP Act.
21. The levy of infrastructure cost is directly relatable to section
22(m) read with section 31(1) of the MRTP Act while considering
grant of approval to the development plan and is a separate charge
not relatable to the development charge under section 124A of the
MRTP Act.
22. Thus, we do not see any reason to accept the plea of the
learned counsel for the petitioner. The levy of infrastructure cost is
violative of Article 14 and 265 of the Constitution of India. We also
hold that the levy of infrastructure cost has legislative competence in
view of section 22(m) read with section 31(1) of the MRTP Act.
23. The learned counsel for the petitioner placed reliance on
Amit Maru & anr. vs State of Maharashtra & anr. (supra). In the said
matter, there was a challenge to the Notification dated 10/04/2008
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issued under section 37(1) read with section 154 of the MRTP Act
proposing amendments to D.C. Regulation 32 and a direction bringing
it into force. The State Government immediately then issued another
Notification dated 11/07/2008 in purported exercise of its power
under section 37(1)(A) of the MRTP Act. Subsequent thereto a
notification was issued on 03/10/2008 sanctioning the modification
to Regulation 32 of the Development Control Regulation for
Maharashtra. By the impugned Notification, the Floor Space Index
(FSI) in the suburbs and extended suburbs of Mumbai had been
increased on the respective plots from 1 to 1.33. It was the case of the
petitioner therein that FSI is part of the development plan prepared
under section 22 of the MRTP Act. Section 37 provides for only minor
modifications. The petitioner contended that in this process, the
entire infrastructure cost in the suburbs shall get crushed; the
amendment has been made by the State Government to increase FSI
on erroneous ground; FSI and TDR in the suburbs was already 2
because of the provisions of distribution of TDR; factually FSI in
suburbs was 1 and it can go upto 2, only if TDR was used; TDR was
created primarily on account of surrender of land in open areas, city
parks etc. therefore, question before the Court was whether an
amendment can be done in the development plan only to augment
financial resources and whether the State Government has legal
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authority to charge premium for the sale of 0.33 FSI without such
action being sanctioned by authority of law and whether such
amendment was ultra vires to the provisions of M.R.T.P. Act.
24. The learned counsel for the respondents submitted that in
the matter of Amit Maru (supra), Their Lordships considered section
37(1) of the MRTP Act, which is also involved in the present petition
and the aspect in those cases was restricted whether any power is
available under the Statute for imposition of tax or fee. However, the
aspect of execution of agreement of development with the Planning
Authority was not under consideration in the matter of Amit Maru, or
Buildarch or in the matter of Ahmedabad Urban Development
Authority (supra).
25. The petitioner has already entered into Development
Agreement with the Planning Authority vide agreement dated
18/06/2012, 01/08/2014 and 21/07/2022 and consented that
petitioners were responsible to pay peripheral development charges
and accordingly, the affidavit and undertaking also filed by the
petitioner to the Planning Authority for getting plan sanctioned,
therefore, now it is not open for the petitioner to challenge the same
that it is violative of Article 265 of the Constitution of India. As held
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in CIT v. McDowell (supra) incident of sovereignty and in the nature
of compulsory exaction a liability founded on, principal of contract
cannot be a "tax" in its technical sense as imposed general, local or
special. In Gupta Modern Breweries v. State of J & K, (2007) 6 SCC
317, the Hon'ble Apex Court held as under:
"It is now well settled principle of law that the regulatory
powers are generally to be widely construed. However,
empowering the State Government to impose taxes, fees or
duties and such demands must be authorised by the Statute and
must contain sufficient guidelines."
In the present matter under the MRTP Act, State is
empowered to appoint authority under the Act and to form/pass
regulations to be followed by authority.
26. In the matter of Amit Maru (supra), it is held that the
premium levied is ex facie not a "regulatory fee". The premium is not
for the purpose of meeting the costs or expenses of administering the
regulation. The costs or expenses of administering regulation cannot
vary according to the value of the land/location. As per the
impugned notification, the premium is not for meeting the costs or
expenses of administering the regulations. Charging a premium to
raise funds for implementation of development plan and for creating
infrastructure is clearly beyond the permissible scope/purpose of
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regulatory fee i.e. to meet the costs and expenses of administering the
regulation, if that can be urged. In the said matter neither aspect of
agreement entered into by the party was in question. The essential
element of quid pro quo also involved in the present subject matter, as
the payment for infrastructure development fees recovered for
providing infrastructure facilities i.e. in the public interest such as
road, water, electricity, transport etc. Moreover, once the petitioner
entered into an agreement and also gave undertaking that he will
bear the costs of laying water pipeline for the purpose of drinking
water to the plot holders at the time of getting plan sanctioned and
subsequently it is not permitted to challenge the same as violative of
Article 265 of the Constitution of India.
27. As per section 31 of the MRTP Act, it is the State
Government which is the repository of the exclusive power to either
accord sanction to the Draft Development Plan submitted to it by the
Planning Authority or to return it with direction to modify it or even
refuse the sanction with direction to prepare a fresh plan. Therefore,
the sanctioned modification dated 05/01/2018 under section 31(1) of
the MRTP Act empowers the authority to recover the infrastructure
cost while issuing development permission in RZ-3 and RZ-4 which is
squarely applicable to the present case.
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28. The petitioner after entering into the agreement, was fully
aware about the transactions, conditions and respective obligations
with commitments, after taking the benefits of same and consenting
the same, it cannot challenge the same by way of present petitions.
The petitioner before this Court admittedly applied twice for
modification and applied for grant of permission under section 44 of
the MRTP Act in view of UDCPR-2020.
29. We have already reproduced above Condition-14 of the
Development Agreement dated 18/06/2012. So far as agreement
dated 01/08/2014, which is produced in Writ Petition No.5386 of
2022, Clause (f) of the said agreement is reproduced below:-
"(f) If and when any Improvement scheme/Town Planning
Scheme for development of the area in which the
aforesaid Khasra Nos.245, 246/1, 246/2, 247, 252, 253,
of Mz.Jamtha, Tah.Nagpur (Rural) & Khasra No.42/1,
42/3, 43/1, 43/2, 44/1, 44/2 Mouza Wagdara, Tah.
Hingna the Party No.2 shall be liable to pay to the Party
No.1 the betterment/peripheral development charges
which may be assessed on the plot(s) in accordance with
the provisions of the Nagpur Improvement Trust Act,
1936/Maharashtra Regional & Town Planning Act 1966.
Provided that the Party No.2 shall be liable to pay
Peripheral development charges to the Party No.1 in
respect of the unsold plots in layout and the purchasers
shall be responsible to pay peripheral development
charges to the Party No.1 in respect of the plots sold to
them. The Party No.2 doth bind itself to incorporate a
clause in the sale deed of each plot to the effect that the
plot(s) is sold subject to the responsibility of the
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purchaser/s to pay betterment/Peripheral development
charges to the Party No.1 in accordance with the
provisions of the Nagpur Improvement Trust Act,
1936/Maharashtra Regional & Town Planning Act 1966."
30. Similar agreement dated 21/07/2022, which is at page 68
in Writ Petition No.5386 of 2022 clauses (3) (f) and (g) are
reproduced below:
"(3) That the said Party No.2 doth hereby agree:-
(f) Party No.2 shall have to deposit non refundable
Infrastructure cost to Party No.1 as per the
Modification No.1 sanctioned by Government under
section 31(1) of the MRTP Act, 1966 of Development
Plan of NMA on total land as per the rate decided by
the NMRDA.
(g) Of the aforesaid land is covered by Town Planning
Scheme in future, the party no.02 shall be liable to
pay to the Party No.01 the betterment and
development charges which may be assessed on the
plot(s) in accordance with the provisions of the
Maharashtra Metropolitan Region Development
Authority Act 2016 (Mah. Act III of
2017)/Maharashtra Regional & Town Planning Act
1966.
Provided that the Party No.02 shall be liable to pay
development charges to the Party No.01 in respect of
the unsold plots in layout and the purchasers shall be
responsible to pay development charges to the Party
No.01 in respect of the plots sold to them. The Party
No.02 doth bind itself to incorporate a clause in the
sale deed of each plot to the effect that the plot(s) is
sold subject to the responsibility of the purchaser/s to
pay betterment/ and development charges to the
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Party No.01 in accordance with the provisions of the
Nagpur Metropolitan Region Development Authority
Act 2016 (Mah. Act III of 2017) / Maharashtra
Regional & Town Planning Act 1966."
By these terms, the petitioner agreed to deposit non-
refundable infrastructure cost to Party-1 as per the modification-1
sanctioned by Government under section 31(1) of the MRTP Act,
development plan of NMA on total land as per the rate decided by the
NMRDA. The petitioner also agreed to pay betterment and
development charges if the land in question covered by town planning
scheme in future. At the time of granting permission for revised plan,
the petitioner was well aware about these conditions and he has
deposited also the amount of Rs.6,91,89,600/-. This agreement is
duly signed by the petitioner as well as the NMRDA. The said
infrastructure cost is as per the regulation No.4.2 (I)(v) of UDCPR-
2020, which is reproduced as under:
"4.2 LAND USE CLASSIFICATION AND EQUIVALENCY OF
ZONES
The different land use classification in Development /
Regional Plan / Planning Proposal & different uses
permissible in that land use zone and equivalency of zone
in various Authorities areas shall be as given below:-
I) Residential Zone - Following other zones shall be
treated as equivalent to Residential zone.
i) to iv).......
v) Residential Zone - R-3 and R-4, with payment of
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infrastructure cost as decided by the Authority."
31. The learned counsel for the petitioner placed reliance on
the judgment of J. Jayalalithaa & oths. v. State of Karnataka & oths.
(supra) in support of his contention that the Statute provides for an
act to be done in a particular way, then it has to be done in that
manner. Other methods or mode of performance are impliedly and
necessarily forbidden. There is no dispute over the proposition laid
down in the citation. It is thus clear that it is his contention that as
Statute provides for levy of development charges for grant of
amenities, Planning Authorities forbidden to recover infrastructure
cost in the nature of tax/fee, which is a part of development plan
which in itself is delegated form of legislation. While contending that,
the petitioner has not appreciated the fact that he entered into an
agreement with the respondents, agreed to pay infrastructure cost for
development in peripheral area. The petitioner has not also
considered the fact that he himself applied under section 44 for
revised plan and in view thereof, he entered into an agreement of the
year 2022, as per UDCPR 2020, the development charges, which were
paid does not include infrastructure cost. Though reliance is placed
on Amit Maru's case supra, the aspect of agreement was not dealt
with in the said matter. The petitioner conveniently emphasized only
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on the fact that he was to incur expenses for streetlights, approach
roads, internal pipelines, sewerage line, etc. There is no dispute about
this fact, however, this fact also cannot be overlooked that the RZ-4,
wherein the land of the petitioner falls, is away from Nagpur city and
the development outside the plots is required to be carried out by the
respondents knowing the same that such infrastructure cost, the
petitioner agreed to pay and still challenge the same by way of these
petitions. Considering the recitals in the agreement between the
petitioner and the respondents-Authorities of the year 2022, the
permission was granted permission to develop plot as per revised
map, subject to condition laid down in that agreement. Now there is
no question of raising any objection to such conditions. Moreover, the
said infrastructure cost can be recovered in view of clause 4.2 (i) (v).
32. The project of the petitioner comes under residential Zone
i.e. R-4 area which is currently rural in character and in the future is
intended to support only low to very low density development, but
which is in close proximity to other planned Urban uses, which are
zone under R-4. Therefore, for the development of the infrastructure
facilities, the fund is required for allowing the permissible residential
use in the R-4 zone. Accordingly, the provision is made in the
sanctioned modification for charging infrastructure costs meant for
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peripheral development which is permissible in terms of Section
22(m) read with Section 31(1) of the said Act along with DCPR 2018
and UDCPR-2020 vide Regulation No.4.2 (1)(v). The Unified
Development Control and Promotion Regulations for Maharashtra
State (UDCPR) came into effect from 02/12/2020. These regulations
are sanctioned by the State Government under Section 37(1AA)(c)
and Section 20(4) of the MRTP Act. Under these regulations under
Clause 4.2, land uses classification and equivalency of zones are
given, which reads as under:-
"4.2 LAND USE CLASSIFICATION AND EQUIVALENCY
OF ZONES
The different land use classifications in
Development/Regional Plan/Planning Proposal &
different uses permissible in that land use zone and
equivalency of zone in various Authorities' areas shall
be as given below:-
I) Residential Zone - Following other zones shall be
treated as equivalent to Residential zone.
i) Residential Zone-(R1)
ii) Residential Zone with Shop line. (R-2)
iii) General Residential Zone.
iv) Residential Zone - R-2.(1) (----)
v) Residential Zone - (2) R-3 and R-4, with payment of
(2) infrastructure cost as decided by the Authority.
vi) Urbanisable Zone.
vii) Special Residential Zone.
viii) Pre-dominantly Residential Zone.
ix) Slum Improvement Zone.
x) Low Density Residential Zone in Development Plan
of Jalgaon.
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xi) Mix use Zone."
(1) The word 'R-3' is deleted vide Corrigendum/Addendum under
Regulation No. 1.10 CR 121/21, dt. 2nd December, 2021.
(2) Inserted vide Corrigendum/Addendum No. CR 121/21, dt. 2nd
December, 2021.
33. The contention of the respondent(s) is that, the demand
was issued with respect to the plots for which the permission was
sought under Section 44 of the MRTP Act and not on the entire plots
in the township, which is almost 111 acres. The petitioner till today
has neither challenged any condition of development agreement
executed with respondent- authorities. The petitioner himself applied
under Section 44 of the MRTP Act for grant of permission, which
comes under the purview of UDCPR-2020. The infrastructure
development charges, which is meant for peripheral development i.e.
offsite development, which includes construction of roads, sewage
treatment plant, water supply, storm drain line, water pipeline, road
transportation and other infrastructure facilities in the interest of
public at large which is already agreed by the petitioner at the time of
sanction of the plan. There are conditions in the development
agreement which read as under:-
"A. Condition No. 14 of Development Agreement dated
18/06/2012 (Document No. 6, Page No. 26-27) Writ
Petition No. 4828/2022 in respect of the Plot No. 7.
B. Condition No. 3F of Development Agreement dated
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01/08/2014 (Document No. 15, Page 71-72) Writ
Petition No. 5386/2022.
C. Condition No. 3F & G of Revised Development
Agreement dated 21/07/2022 (Document No. 19, Page
No. 87-88) Writ Petition No. 5386/2022.
D. Condition No. 3E of Development Agreement dated
18/06/2012 (Annexure-D, Page 52-53) of the Writ
Petition No. 1890/2022 in respect of the Plot No. 5"
34. As such, it is now not open to challenge charges which are
accepted by the petitioner. The petitioner has not challenged any of
the conditions of development agreement. As per sanctioned
modification, the land included in residential zone, the development
permission on this land was regulated as per the provision of
Development Control Regulations of Sanctioned Regional Plan. As per
the Government Notification issued by the Urban Development
Department's dated 23/07/1999, Nagpur Metropolitan Area (NMA)
was declared as Planning Authority and as per the Government
Notification dated 31/08/2010, Nagpur Improvement Trust was
appointed as a Special Planning Authority for Nagpur Metropolitan
Area and under Section 26(1) of the MRTP Act and notice to that
effect was published in Government Gazette dated 26/02/2015.
Development Plan for NMA was sanctioned by Government
Notification dated 05/01/2018 which came into force w.e.f.
09/02/2018. As per Sanction Modification-1 (SM-1) of 'the
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WP-4828 of 2022-J.odt
Scheduled-A' of the notification dated 05/01/2018, Residential Zone
viz. R-1, R-2, R-3 and R-4 proposed in the submitted Draft
Development which has been merged into Common Residential Zone
(R) with the condition that infrastructure cost as decided by the
Authority shall be recovered while issuing development permission in
R-3 and R-4 Zone considering location of broad zoning of R-3 and R-4
in Draft Development Plan, its development potential and additional
cost to be incurred by Planning Authority as compared to location
advantages, availability of existing infrastructure and such other
factors in R-1 and R-2 Zone and giving advantage of full FSI in R-3
and R-4 zone to similar FSI as compared to R-1 and R-2 Zone. The
MRTP Act is enacted with the intention & sole purpose to make
provision for planning the Development Plans and their effective
implementations. As per provisions of 31 of the said Act, the State
Government is empowered to sanction the Draft Development Plan
submitted to it for the Area, either without modification or subject to
such modifications as it may consider proper. In view of Section
22(m) of the said Act, the Development Plan may indicate matters
like provision for permission to be granted for controlling and
regulating the use and development of land within the jurisdiction of
the local authority including imposition of fees, changes and premium
at such rates fixed by the State Government or the Planning Authority
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from time to time and such other matters as may be considered
necessary for carry out the objects of the said Act. On merger of R-3
and R-4 in Common Residential Zone, additional FSI was granted to
the density proposed in Draft Development Plan and balancing the
same by changing infrastructure charges likely to burden on the
Planning Authority in excess to the Regular Development Charges to
be recovered under Section 124 of the said Act. Thus, incorporating
infrastructure charges in the Development Plan is within the purview
of Section 22(m) of the said Act.
35. The learned counsel for respondent nos. 2 and 3 relied on
Joint Action Committee of Airline (supra) wherein, the Hon'ble Apex
Court placed reliance on the judgment in R.N. Gasain V/s. Yashpal
Dhir {SCC PP 687-88}, wherein it observed in para 10 as under:-
"11. .....
(10) Law does not permit a person to both approbate
and reprobate, This principle is based the doctrine of
election which postulates that no party can accept and
reject that same instrument and that 'a person cannot
say at one time that a transaction is valid and thereby
obtain some advantage, to which he could only be
entitled on the footing that it is valid and then turn
round and say it is void for the purpose of securing
some other advantage'.
12. The doctrine of election is based on the rule of
stopped - the principle that one cannot approbate and
reprobate inheres in it. The doctrine of stopped by
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election is one of the species of estoppels in pais (or
equitable estoppel) which is a rule by equity. By that
law a person may be precluded by his actions or
conduct or silence when it is his duty to speak, from
asserting a right which he otherwise would have had.
Taking inconsistent pleas by a partly makes its conduct
far from satisfactory. Further, the parties should not
blow hot and cold by taking inconsistent stands and
prolong proceedings unnecessarily."
36. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on State of U.P. V/s. Karunesh Kumar and ors. (supra)
wherein the term "Approbate and Reprobate" is explained. In para 22
of State of U.P. V/s. Karunesh Kumar and ors. (supra), the Hon'ble
Apex Court placed reliance on the judgment in Union of India V/s. N.
Murugesan {(2022) 2 SCC 25} wherein, in para 26, it is held as
under:-
"Approbate and reprobate
"26. These phrases are borrowed from the Scots law.
They would only mean, that no party can be allowed to
accept and reject the same thing, and thus one cannot
blow hot and cold. The principle behind the doctrine of
election is inbuilt in the concept of approbate and
reprobate. Once again, it is a principle of equity coming
under the contours of common law. Therefore, he who
knows that if he objects to an instrument, he will not
get the benefit he wants cannot be allowed to do so
while enjoying the fruits. One cannot take advantage of
one part while rejecting the rest. A person cannot be
allowed to have the benefit of an instrument while
questioning the same. Such a party either has to affirm
or disaffirm the transaction. This principle has to be
applied with more vigour as common law principle, if
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such a party actually enjoys the one part fully and on
principle, if such a party actually enjoys the one part
fully and on near completion of the said enjoyment,
thereafter questions the other part. An element of fair
play is inbuilt in this principle. It is also a species of
estoppels dealing with the conduct of a party. We have
already dealt with the provisions of the Contract Act
concerning the conduct of a party, and his presumption
of knowledge while confirming an offer through his
acceptance unconditionally."
37. As entered into terms and conditions of the Development
Agreement dated 18/06/2012, 01/08/2012, 21/07/2022 and
consented for the payment of peripheral development charges/
infrastructure cost, the petitioner has no right to challenge the
infrastructure development charges. If it is a policy decision of the
Government at the instance of individual, it cannot be superseded.
Moreover, it has backing of law.
38. The learned counsel for the respondent nos. 2 and 3 relied
on Janhit Manch V/s. State & ors. {2019 SCC 505) wherein, in para
13, the Hon'ble Apex Court held as under:-
"13. We have to keep in mind the principles of
separation of powers. The elected Government of the
day, which has the mandate of the people, is to take
care of policy matters. There is a democratic structure
at different levels, starting from the level of Village
Panchayats, Nagar Palikas, Municipal Authorities,
Legislative Assemblies and the elected parliament each
of them has a role to perform. In aspects, as presented
in the instant case, a consultative process is always
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helpful, and is one which has already been undertaken.
The philosophy of Appellant transmitted as a 2 cannot
be mandatory policy of the Government, which is what
would happen were a mandamus to be issued on the
prayers made. Perspective of individuals may vary, but
if the elected bodies which have policy formulation
powers is to be superseded by the ideals of each
individuals, the situation would be chaotic. The policies
formulated and the legislations made, unless they fall
foul of the Constitution of India, cannot be interfered
with at the behest of the appellants. The appellants
have completely missed this point"
39. He further placed reliance on Yamuna Expressway
Industrial Development Authority ETC (supra) wherein the Hon'ble
Apex Court in para 65 held as under:-
"65. We have hereinabove elaborately discussed that
when a policy is changed by the state, which is in the
general public interest, such policy would prevail over
the individual rights/interest. In that view of the matter,
we do not find it necessary to refer to the said
judgments. The policy of the State Government as
reflected in the said G. O. was not only in the larger
public interest but also in the interest of the
respondents."
40. As the issue involved in the present matter is of policy
decision taken by the State along with the Authority by imposing
infrastructure development charges which is in terms of Section
22(m) along with Section 31(1) of MRTP Act vide sanctioned
modification dated 05/01/2018 and as per regulation No. 4.2(I)(v) of
UDCPR-2020, which is in the interest of public at large and the
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Authorities are empowered to recover the same in terms of Section
22(m) of MRTP Act. As such, the State is empowered to fix the rate
and also empowers the planning authority to recover the same. As
such, no interference is required.
41. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on Ratilal Pannachand Gandhi and ors. (supra)
wherein the Hon'ble Apex Court held in para 22 as under:-
"22. Fees on the other hand, are payments primarily
in the public interest, but for some special service
rendered оr some special work done for the benefit of
those from whom the payments are demanded. Thus id
fees there is always an element of 'quid pro quo' which
is absent in a tax. It may not be possible to prove in
every case that the fees that are collected by the
Government approximate to the expenses that are
incurred by it in rendering any particular kind of
services or in performing any particular work for the
benefit of certain individuals. But in order that the
collections made by the Government can rank as fees,
there must be co-relation between the levy imposed and
the expenses incurred by the State for the purpose of
rendering such services. This can be proved by showing
that on the face of the legislative provision itself, the
collections are not merged in the general revenue but
are set apart and appropriated for rendering these
services.
Thus two elements are essential in order
that a payment may be regarded as a fee. In the first
place, it must be levied in consideration of certain
services which the individuals accepted either willingly
or unwillingly and in the second place, the amount
collected must be car-marked to meet the expenses of
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rendering these services and must not go to the general
revenue of the State to be spend for general public
purposes."
42. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on Shri Krishna Das V/s. Town Area Committee
(supra), wherein the Hon'ble Apex Court in para 24 held as under:-
"24. We have seen that a fee is a payment levied by an
authority in respect of services performed by it for the
benefit of the payer, while a tax is payable for the
common benefits conferred by the authority on all tax
payers. A fee is a payment made for some special benefit
enjoyed by the payer and the payment is proportional to
such benefit. Money raised by fee is appropriated for the
performance of the service and does not merge in the
general revenue. Where, however, the service is
indistinguishable from the public services and forms
part of the latter it is necessary to inquire what is the
primary object of the levy and the essential purpose
which it is intended to achieve. While there is no quid
pro quo between a tax payer and the authority in case of
a tax, there is a necessary corelation between fee
collected and the service intended to be rendered. Of
course the quid pro quo need not be understood in
mathematical equivalence but only in a fair
correspondence between two. A broad co-relationship is
all that is necessary."
43. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on State of U.P. and ors. V/s. Malti Kaul and ors.
(supra) in support of his contention that, there is no violation of
Article 265 of the Constitution of India. The Hon'ble Apex Court in
para 13 and 15 held as under:-
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"13. This considered, we hold that, the Act specifically
gives such a power. It is true that under Article 265 of
the Constitution no tax can be levied without any
authority of law. There is no quarrel on the proposition
of law. In this case, from a reading of the aforesaid
provisions it is clear that the statute, instead of
prescribing the rate of developmental charges itself, has
given power to the rule making authority to regulate the
collection of and payment of development fee. It is seen
that under the direction which is not inconsistent with
the provisions of the Act, it indicates the method and
the manner in which the collection is to be secured so as
to see that the area is developed in a planned manner as
per the sanctions given by the competent authority. The
High Court, therefore, was clearly in error in holding
that there is no provision under the Act or the Rules to
levy the Development fee."
15. In Hingir Rampur Coal Co. Ltd. Vs State of Orissa, a
Constitution Bench of this Court has held that fee is
levied essentially for services rendered and there must
be an element of quid pro quo between the person who
pays it and the public authority that imposes it. The
public authority has the power to levy fee in respect of
the services rendered. Therefore, compulsory exaction
by levy of fee was not ultra vires the power of the
authority."
44. In the present matter, the payment for infrastructure
development facilities recovered for providing infrastructure facilities
is in the public interest. Moreover, the petitioner has already entered
into the Development Agreement with the Planning Authorities vide
Agreements dated 18/06/2012, 01/08/2014 and 21/07/2022 and
consented to pay peripheral development charges/infrastructure cost.
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Accordingly, the affidavits and undertaking were also submitted while
getting plans sanctioned. As such, it is not open to challenge the same
on the ground of violation of Article 265 of the Constitution of India.
45. The affidavits submitted is not mere a formality. The
affidavits and undertaking submitted to the Planning Authority at the
time of getting the plans sanctions binds the petitioner to pay the
infrastructure development charges.
46. The learned counsel for respondent nos. 2 and 3 relied on
New Okhla Industrial Development Authority (supra), wherein the
Hon'ble Apex Court held that, "the essential ingredients of an
affidavit are that the statements or declarations are made by the
deponent relevant to the subject matter and in order to add sanctity
to it, he swears or affirms the truth of the statements made in the
presence of a person who in law is authorized either to administer
oath or to accept the affirmation." There is no objection or challenge
to the development agreement at any point of time while entering
into such agreement.
47. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on Narayan Jagobaji Gowande Public Trust (supra),
wherein the Hon'ble Apex Court held in para 39 and 47 as under:-
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"39. Further, the High Court has rightly observed that
another benefit derived by the appellant Trust from the
said development agreement is immediate and
reciprocal sanction for the development of the said land
with permission for the commercial usage of the same,
presuming that there would be по acquisition.
40. .......
(47) When the parties entered into agreement, they
were fully aware of the nature of transaction, conditions
and respective obligations. There was no objection
raised at any point of time while entering into such
agreement and even thereafter when petitioners and
such other persons who based upon the said agreement
got the benefit out of the same. We cannot read the
clauses in isolation. We have to read the whole
agreement in question. It is very clear even from the
provisions of the Contract Act that the consideration of
any such agreement was permissible and not unlawful
and/or not prohibited by law and was not to defeat the
provisions of any law or is fraudulent and/or is immoral
or opposed to public policy."
48. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on The Chief Engineer Water Resources Department
and ors. (supra), in support of his contention that, in a contractual
area where the parties are governed by an agreement in support of
which the petitioner has also tendered an undertaking, it will not be
possible for the Court to pass any order which would obviate
compliance with the agreement. In view of the above referred
citation, the Hon'ble Apex Court reiterated what is held in Narayan
Jagobaji (supra).
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49. The learned counsel for the respondent nos. 2 and 3 also
placed reliance on Vijay Nanikram Bhatia and ors. (supra) wherein
while explaining the true purport of Section 31 of the MRTP Act, this
Court held in para 28 and 29 as under:-
"28. The true purport of section 31 of the Act, if
analyzed in the light of the law as discussed above, is
that it is the State Government which is the repository of
the exclusive power to either accord sanction to the
draft development plan submitted to it by the planning
authority or to return it with direction to modify it or to
even refuse the sanction with the direction to prepare a
fresh plan. In such matters, in our opinion, since, it is
the State Government which is the exclusive repository
of power, the grounds on which challenge in this
petition to the impugned notification and the
corrigendum issued thereto has been made, are not
tenable.
29. We may also note that for challenging any
legislation or legislation, unless its unreasonableness or
arbitrariness is established no fault can found with such
an exercise, provided the procedure for taking out such
subordinate legislation has been followed. In absence of
any substantiated averment in the writ petition relating
to any flaw in the procedure followed by the
respondents as stipulated in the MRTP Act, challenge to
the impugned Notification and the corrigendum issued
thereto by the State Government sanctioning the draft
development plan for the city of Ulhasnagar under
section 31 of the MRTP Act is bound to fail."
50. The learned counsel for the petitioner relied on Solapur
Promoters and Builders Association Society v. State of Maharashtra
(supra), wherein this Court considered the intention behind enacting
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the Maharashtra Regional and Town Planning Act, 1966. It is held
that the Statement of Object and Reasons underlying the enactment
of the Amending Act takes due note of the distinct trend towards
urbanization in Maharashtra and of the concentration of the urban
population in and around Greater Mumbai and other cities and towns
in the State. Urbanization has generated increasing demands for the
creation of an infrastructure that would provide basic civic amenities
such as roads, water supply, sewerage and electricity. It is held in
para-10 as under:
"10. The Development Charge leviable under Chapter VI-A
is a fee that is imposed in order to enable the Authority to
provide public amenities within its area and for the
maintenance and improvement of the area under its
jurisdiction. An institution of use, a change of use or the
development of lands and buildings falling within the
territorial limits of the jurisdiction of a Planning Authority or
a Development Authority places demands on the civic
amenities which the authority is required by law to provide.
The contribution towards the Development Charge is
therefore relatable to the amenities which are provided by the
Authority of roads, parks, hospitals, water supply, electricity,
sewerage and drainage amongst other public services. These
are under Section 2(2) utilities, services and conveniences
provided by the Authority within the area of its jurisdiction."
51. In the present matter, the infrastructure cost as per
development plan is in relation to provide better amenities within the
area and for the maintenance and improvement of the area under the
jurisdiction of Development Authority. It is contended by the learned
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counsel for the petitioner that any undertaking given by the party
concerned cannot expand the statutory jurisdiction of the Authority
concerned. He placed reliance on Sunil Bhupendradeo Thaper v. State
of Maharashtra (supra), wherein this Court held as under:
"22. Similar such view was taken by the Hon'ble Supreme Court
in the case of Shridhar C. Shetty vs. Additional Collector &
Competent Authority and others, reported in (2020) 9 SCC 537.
The Apex Court while dealing with the tenancy and land laws
held that any undertaking given by the party concerned cannot
expand the statutory jurisdiction of the authority concerned."
However, in the present matter, infrastructure cost is fixed
by the Authority as per the provisions of law and UDCPR 2020.
52. The learned counsel for the petitioner also placed reliance
on Smt. Sharayu D/o Ashok Gokhale v. The Nagpur Municipal
Corporation, Nagpur (supra), however, question involved in the said
matter was altogether different, i.e. while renewing lease 3 clauses
were inserted in the existing original lease deed. The question before
the Court was that whether it was permissible for the Nagpur
Municipal Corporation to incorporate additional terms and conditions
in the lease deed while renewing it in the absence of any stipulation
in the initial lease deed permitting it to do so. The answer to this
question was given by this Court in negative. It was held that it is not
permissible for the Nagpur Municipal Corporation to incorporate
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additional terms and conditions in the lease deed while renewing it,
especially when there was no such stipulation in the initial lease deed.
In the present matter, there is no question of any renewal or any
additional terms while renewing the lease deed. Even contract is not
renewed, but in view of application under section 44 after amended
development plan is published and Regulations 2020 came into effect,
when the new agreement entered into by the petitioner, it is not the
case of addition or insertion of new clauses in the earlier contract.
This court relied on the decision of this Court in Smt.Jaikumari. It was
contention in the said petition that insertion of such additional
clauses requiring payment of unearned income notwithstanding the
decision of this Court in Smt.Jaikumari is opposed to public policy
and also violates Article 14 of the Constitution of India. It is held that
defence of estoppel raised by the Corporation is liable to fall to the
ground since estoppel cannot operate against law.
53. In the first place, the petitioner ought to have established
how the infrastructure cost demanded by the Corporation is against
public policy. In fact, to provide better amenities, the infrastructure
cost is levied. If Notification of Regulations 2020 is perused, the
NMRDA is appointed as a Special Planning Authority in exercise of
the power conferred by section 40(1B) of the Maharashtra Regional
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and Town Planning Act, 1966. It is also mentioned in the said
Notification that in accordance with section 31(1) of the said Act after
making necessary enquiries and after consulting the Director of Town
Planning, Maharashtra State, Pune, the State Government has
accorded sanction to the said draft development plan with
modifications in Schedule-A in exercise of powers conferred by sub-
section (1) of Section 31 of the said Act and all other powers enabling
it on that behalf the Government of Maharashtra issued Development
Control Regulations for the whole Nagpur Metropolitan Area with
modifications. The said Development Control and Promotion
Regulations is for Nagpur Metropolitan Regional Development
Authority. The sanction set of DCPR for NMRDA area is attached with
the said Notification. Under these Regulations clause 3.6 provides that
any development permission granted earlier may be revised. While
granting the revised permission to approved plan and commencement
certificate of the earlier permission with the owner and office shall be
stamped as "CANCELLED" by the authority. Thus, the Development
Authority i.e. NMRDA is having authority to impose infrastructure
cost in view of clause 4.2 of the Unified Development Control and
Promotion Regulation 2020. These Regulations are passed as per the
provisions of the Maharashtra Regional and Town Planning Act, 1966
and approved by the State of Maharashtra.
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54. The reliance is also placed by the learned counsel for the
petitioner on the citation of BILT Graphic Paper Products Limited v.
State of Maharashtra (supra), wherein the State Government while
granting permission to mortgage occupancy Class-II lands to bank and
financial institutions demanded mortgage fees of 0.50%. It is held
that said levy is found to be without any authority of law in terms of
Article 265 read with Article 366(28) of the Constitution of India. It is
held that Code of 1966 and specially section 36(4) thereof does not
empower the State Government to levy such mortgage fees while
granting permission to an occupant Class-II holder to mortgage such
land while seeking loan against the same. The learned counsel for the
petitioner also relied on this judgment in support of his contention
that if demand of infrastructure cost is without any authority of law,
the prayer for refund of the amount of infrastructure cost paid under
protest would have to be considered.
55. The learned counsel for the petitioner also relied on Jalkal
Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment
Corporation (supra), however, in our considered opinion, it is not
relevant, as it is in respect of tax.
56. In the present petition, there is sanctioned modification
issued by the State Government on 05/01/2018 (SM-1) which
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empowers to impose the infrastructure development charges as
decided by Authority, shall be recoverable while issuing development
permission in R-3 and R-4 Zone.
57. Thus, it appears that, the due procedure is followed in the
matter as per Sections 21 to 31 of the MRTP Act and there is no such
assertion that, the procedure given under Sections 21 to 31 has not
been followed. In view of sanctioned modification issued by the State
Government for imposing the infrastructure development charges can
be recovered by issuing development permission in R-3 and R-4 Zone.
As such, the charges are neither illegal nor contrary to the provisions
of law. It cannot be termed as a "tax" as referred above. Therefore, the
citations relied on by the petitioner pertaining to tax are not
applicable in the present set of facts. The infrastructure costs is levied
as per regulation which is promulgated by following due procedure.
Neither it is unreasonable nor illegal.
58. Thus, it can be seen from the above discussion that the
infrastructure cost is levied by the Authority, as the petitioner applied
for revised sanction. Clause 4.2 of Chapter IV of UDCPR 2020,
provides for imposing infrastructure cost which can be levied as
decided by the Authority in R-3 and R-4 Zones. This infrastructure
cost is levied to provide public amenities like roads, water supply,
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sewerage line, electricity, etc. Though development of inside the
layout is at the cost of developer i.e. petitioner, however, the above
cost is required to be recovered from the developer as the said area is
in R-4 Zone, which is substantially away from the city and if such
infrastructure cost is not levied, it may cause loss to the NMRDA as
well as Government. As per Regulations 2020, the NMRDA is declared
as Development Authority, who is having authority to impose such
cost. Thus, Regulations 2020 are issued by the State of Maharashtra
as per the provisions of the Maharashtra Regional and Town Planning
Act, 1966 and thus we have no hesitation to hold that there is backing
of law to recover such infrastructure cost. In view thereof, there is no
merit in the petition and the same is liable to be dismissed. The
petition stands dismissed.
59. Rule stands discharged. No order as to costs.
(PRAVIN S. PATIL, J) (SMT. M. S. JAWALKAR, J)
Signed by: Mr. G.S. Khunte KHUNTE/B.T.Khapekar
Designation: PS To Honourable Judge
Date: 16/09/2025 17:59:36
