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2010 Supreme(Bom) 310
2010(4) ALL MR 827
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
F.I. REBELLO & J. H. BHATIA, JJ.
Bank of Baroda & Anr. – Appellants
Versus
Mumbai Metropolitan Regional Development Authority & Ors. – Respondents
Writ Petition No.750 of 2000
Decided on : 2nd March, 2010.
Mr. F. D'VETRE, Sr. Counsel a/w Mr. J. P. SEN & Mr. P.DUBASH i/b. Mulla & Mulla & Craigie Blunt & Caroe, Advocates, for the Petitioners.
Ms. KIRAN BAGALIA, Advocate, for Respondent Nos.1 & 2.
Mr. R. J. MANE, AGP, for Respondent No.3.
Headnote:Mumbai Metropolitan Region Development Authority Act, 1974 - Section 3(1)(2)(3) - Mumbai Metropolitan Region Development Authority (Disposal of Land) Regulations, 1977, Regulation 4 - Bandra Kurla Notified Area Development Control Regulations, 1979, Regulation 4-A(i)(e) - Government Grants Act, 1895, Sections 2 and 3 - Agreement of lease - Payment of lease premium - Plot allotted to petitioners for construction of building - Petitioners sought permission for providing additional basement - Respondent-1 informed, 20% of lease premium to be paid for additional basement - Challenged - Held - Land not granted to petitioner by or on behalf of Government under Section 2 of Act, 1895 - Charging premium @ 20% of lease premium statutory requirement under Regulation 4-A(i)(e) - Permission to use additional basement area granted to petitioner during period when respondent-1 statutorily required to charge @ 20% of leave premium - Writ petition dismissed. - Coming of the facts of the case, record reveals that firstly, on 31.10.1996, the petitioners made an application for permission for construction of Diaphragm
Wall and use of additional basement on payment of premium. On 15.11.1996 the permission was granted by the respondent No. 1 and the petitioners were called upon to pay the amount of Rs. 4,26,23,501/- as premium for additional basement. Admittedly that was equivalent to 20% of the lease premium for the basement area in terms of the Regulation in force at that time. Several representations were made by the petitioners to charge at the rate of 5% but that was not accepted and on 20.1.1998 the petitioners made payment as per demand towards premium for additional basement at the rate of 20%. The record reveals that first commencement certificate was issued by the respondent No. 1 on 9.3.1998 and the second commencement certificate dated 10.71998 was issued for office building upto plinth level only on request of the petitioners. Both these commencement certificates reveal that they would be valid for one year from the date of issue. The intimation of Disapproval under Section 346 of the Mumbai Municipal Corporation Act was issued by the Municipal Corporation on 30.10.1998 and thus the permission was granted subject to certain conditions stated therein. On 17.12.1999 the Municipal Corporation addressed a letter granting no objection to carry out the work as per the amended plan. The respondent No. 1 by letter dated 8.6.2001 extended the period for completion of construction of building by three years with effect from 8.2.2001 when the earlier period of three years had expired. That letter clearly shows that the permission was granted as per resolution dated 20.3.1998 and the construction was to be completed by 8.3.2001. Merely because the petitioner made certain amendment in the plan and sought necessary permission from the Municipal Corporation which took some time and therefore it could not complete the construction within the specified period and on its request, the period for construction was extended by the respondent No. 1, it does not mean that the petitioner was granted permission to use additional basement area for the first time after 15.1.1999 when the rates were again reduced. Admittedly, the said Regulation was amended by Notification dated 15.1.1999 as per the resolution dated 14.2.1997 and the premium amount was reduced from 20% to 5% again. However during the period from 14.10.1994 till 14.1.1999 the rate was 20%. The record reveals that the petitioner made an application seeking permission to use the additional basement area and that permission was granted during the period when as per the Regulation 4-A(i)(e), (iii) the respondent No. 1 was statutorily required to charge premium at the rate of 20% of the lease premium. The learned counsel for the petitioner contended that even if permission was granted during the relevant period of 14.10.1994 to 15.1.1999 in view of the fact that the premium amount was reduced to 5% on the basis of resolution dated 14.2.1997 there was no justification to charge premium from the petitioners at the rate of 20%. Court not impressed by this contention. The respondent No. 1 was bound to charge the premium as per the provisions of the Regulations as applicable during the relevant period because the amendment dated 15.1.1999 does not show that it had any retrospective effect.
J.H.BHATIA, J.:- The respondent NO.1 has been constituted as "Metropolitan Authority" or "Authority" under the Mumbai Metropolitan Region Development Authority Act, 1974. By a Memorandum dated 20.2.1985, the Government of Maharashtra - respondent No.3 sanctioned and granted 180.162 Hectares of Government land situated at Bandra-Kurla Complex to the respondent No.1 for development of that area as an "International Finance and Business District/Centre" and, accordingly, the land was transferred to respondent no.1 by an order dated 10.5.1985 passed by the Additional Collector. On 23.3.1994, respondent No.1 invited tenders for disposal of various plots of land in the International Finance and Business Centre known as "G" Block of the Bandra-Kurla Complex. On 9.5.1994. the petitioner No.1 Bank of Baroda submitted a tender for plot No.C-26. That tender was accepted on 20.6.1994 and, accordingly, the petitioner No.1 - paid amount of Rs.80.71 crore by cheque towards lease premium for the plot No.C-26.
Thereafter, on 15.7.1994, an agreement to lease was executed between the petitioner No.1 and respondent No.1 and accordingly the petitioners were allowed to enter upon and occupy the said plot as licensees. By a Notification dated 14.10.1994, a new Regulation 4-A was inserted in the Bandra-Kurla Notified Area Development Control Regulations, 1979 ("DCR Rules" in brief). As per sub-clause (e) in Regulation 4A(i),it was provided that for additional area of basement to be used for regular vehicular parking only, a premium at the rate of 20% of the lease premium shall be paid by the allottee to the Metropolitan Authority. In July. 1996, the petitioners submitted plans of the proposed building to be constructed on the said plot and on 31.10.1996, the petitioners applied for permission for providing additional basement for underground parking facility in the basement. On 15.11.1996, the respondent No.1 MMRDA granted "No objection in principle" to the request of the petitioners and required the petitioners to pay an amount of Rs.4,26,23,50l/ - as premium for additional basement. In response to that, the petitioner raised a protest by a letter dated 20.11.1996 to the respondent No.1 pointing out that as per the terms of the agreement dated 15.7.1994 and the booklet given to the petitioners, 5% of lease premium was to be paid for additional basement. As per that rate, amount of premium worked out to be Rs.l,05,98,603.75 towards the additional basement as against the amount claimed by the respondent No.1. The petitioners requested the respondent No.1 to confirm the correct position.
Thereafter some more letters were addressed by the petitioners to the respondent No.1 seeking clarification of the premium amount for the additional basement. On 4.2.1997, the respondent No.1 replied that in view of the Regulation 4A(i)(e), which was effective from 14.10.1994, for the building proposals received thereafter, charging a premium at the rate of 20% of the lease premium for the additional basement was necessary and, therefore, 20% lease premium was required to be paid by the petitioners. According to the petitioners, on 14.2.1997, again a resolution was passed, in exercise of powers under Section 40 of the MR TP Act, 1966, to reduce the rate to 5 % and on 15.1.1999, a notification was issued accordingly and the rate was reduced to 5%.
Meanwhile, on 20.1.1998, the petitioner had made payment of Rs.4,26,23,507/- by a cheque towards the premium demanded by the respondent No.1 for additional basement area. The petitioners contended that in view of the terms of the agreement and the resolution passed on 14.2.1997 and the amendment dated 15.1.1999 in Regulation 4-A(i)(e)(iii), the petitioners should be required to pay 5% of the lease premium. However, that request was turned down and the request for refund of the excess money was rejected by the letter dated 26.5.1999 by the respondent No.1. In view of these facts and circumstances, the petitioners, by this
