JUDGMENT :

SANJAY KUMAR, J

1. Leave granted.

2. Denial of a refund to the appellants, Prasad Pandurang Tapkir and Shakuntala Pandurang Tapkir, is in issue.

3. By judgment dated 17.11.2022, a Division Bench of the Bombay High Court dismissed their writ petition on the ground that there was no provision for such refund in the statutory scheme. Hence, this appeal.

4. The appellants owned an extent of agricultural land in Survey No. 103/2/2 of Alandi Taluka in Pune District. They wanted to develop this land under the scheme for homogenous development in areas adjoining municipal corporation limits, formulated by the Government of Maharashtra, which enabled modification of the regional plan. On 25.05.2012, they sought conversion of the use of their land so as to undertake group housing construction thereon. In terms of the regulations framed, premium was payable for construction over and above what was permissible under the Floor Space Index (FSI) Regulations. On 18.06.2012, premium rates were notified by the District Collector, Pune District. On 30.08.2012, upon the appellants’ request for extra FSI, the premium payable was determined and the appellants paid Rs.30,46,290/- to the authorities. On 08.10.2012, the Sub-Divisional Officer, Khed, Pune, granted permission for such conversion and construction. However, the appellants abandoned their group housing construction plan and wanted to make plots instead. Their application dated 16.12.2013 in this regard was accepted and permission was granted to take up the plotting, vide order dated 19.04.2014, making it clear that the terms and conditions of the order dated 08.10.2012 would remain in force.

5. On 13.08.2015, the appellants applied for refund of the premium of Rs.30,46,290/- paid by them, as they had not utilized the extra FSI. Their plea in this regard ultimately came to be rejected by the Assistant Director, Town Planning, Pune Branch, Pune, vide order dated 15.02.2020, on the ground that there was no provision in the Development Control Regulations permitting such refund. This order was challenged by the appellants before the High Court, by way of Writ Petition No. 9040 of 2021. The writ petition came to be dismissed by way of the impugned order. Therein, the Division Bench observed that wherever refund was permissible, the same was expressly provided for in the regulations and the appellants could not seek return of the premium paid by them, as refund thereof was not contemplated. The Bench noted that the State was not to blame for the failure of their project and it was the appellants themselves who had abandoned it. Pointing out that the regulation of FSI is in public interest but a privilege had been granted to the appellants upon payment of premium, the Bench held that it was for them to use the same as the process ended upon payment of such premium. The Bench opined that the decision not to utilize the privilege was entirely that of the appellants and, having relinquished the privilege granted, it was not open to them to seek refund of the premium from the public exchequer. The writ petition was accordingly dismissed.

6. At this stage, we may note that the High Court also held against the appellants on the ground of delay, as they had filed their first writ petition only in the year 2018. However, we find that the appellants sought refund of the premium paid by them on 13.08.2015 itself. This claim on their part was within three years of making the payment on 30.08.2012 and the inaction of the authorities upon their request cannot be attributed to them as delay on their part. In this regard, we may note that the Sub-Divisional Officer, Khed, Pune, addressed letter dated 19.11.2015 to the Assistant Director, Town Planning, Pune District, recommending the case of the appellants. Therein, he stated that as the appellants had not undertaken construction as proposed by them, it would be appropriate to refund the amount paid by them. Despite such recommendation, no action was taken