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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FERDINO I. REBELLO & A.A. SAYED, JJ.
M/s. Buildarch... Petitioners.
Versus
The Municipal Corporation of Greater... Respondents
WRIT PETITION NO. 1874 OF 1998
Decided on : JUNE 10, 2010
premium - levy of premium for exclusion of FSI - D.C. Regulation 35(2)(c) - The Commissioner had no power to charge premium. The demand for premium was declared illegal. The clarification by order/communication dated 6.7.2009 was held to be ultra vires Regulation No. 35(2)(c) and the provisions of the Act and the Rules. Respondents were directed to refund the premium to the Petitioners for the lands covered.
Fact of the Case:
The Petitioners challenged the levy/charge/imposition of premium by Respondent No. 1 for the area covered by stair case rooms, lift rooms, above the topmost storey, lift wells and stair cases and passages thereto as set out in Regulation No. 35(2)(c) which can be exempted from computation of FSI under the provisions of the D.C. Rules by special permission of the Commissioner as being without the authority of law.
Finding of the Court:
The Commissioner had no power to charge premium. The demand for premium was declared illegal. The clarification by order/communication dated 6.7.2009 was held to be ultra vires Regulation No. 35(2)(c) and the provisions of the Act and the Rules. Respondents were directed to refund the premium to the Petitioners for the lands covered.
Issues: 1. Whether the Commissioner had the power to charge premium for granting special permission to exclude from computation of F.S.I., areas set out in D.C. Regulation 35(2)(c)? 2. Was the Respondent Corporation authorized to pass a resolution to levy premium for exercise of the powers by the Commissioner under D.C. Regulations 35(2)(c) when the regulations confer powers specifically on the Commissioner and not on the Corporation? 3. Can the premium charged be said to be a regulatory fee, and if so can it be charged without there being any specific provision under the provisions of the M.R.T.P. Act? 4. Does Section 479 of the M.M.C Act which confers powers to grant licence and also provides for charging fees by the Commissioner, can be said, to be the power to charge premium for granting special permission by the Commissioner under D.C. Regulation 35(2)(c)? 5. Considering the long standing practice and the fact that the premium is being charged from 10.7.1974, can it be submitted that it is not open to an applicant who applies for special permission to the Commissioner to challenge the charging of premium and in that context if two views are possible should this court accept the interpretation which would result in not upsetting the long standing practice. 6. Is the premium referable to any services performed by the Corporation. 7. Is the premium within the limits set out under section 124A read with Schedule II of the M.R.TP Act as no development charge is levied by the Corporation for sanctioning, building plans in respect of the areas not excluded from FSI restrictions?
Ratio Decidendi: The Commissioner had no power to charge premium for granting special permission to exclude from computation of F.S.I., areas set out in D.C. Regulation 35(2)(c). The demand for premium was declared illegal. The clarification by order/communication dated 6.7.2009 was held to be ultra vires Regulation No. 35(2)(c) and the provisions of the Act and the Rules. Respondents were directed to refund the premium to the Petitioners for the lands covered.
Final Decision: It is declared that Respondents in the absence of any express provisions in the Act or regulations, do not have any power and or authority to levy, charge, demand or collect any premium or amounts by whatever name under D.C. Regulation No. 35(2)(c) for grant of special permission by the Commissioner and consequently such demand is illegal. It is further declared that the clarification by order/communication dated 6.7.2009 is ultra vires Regulation No. 35(2)(c) and or provisions of the Act and the Rules. Consequently respondents are directed to refund the premium to the Petitioners in so far as those lands are covered. If the amounts are refunded within two months from today, it shall not carry any interest failing which the same will carry interest at the rate of 8% per annum from today till final payment.
Ferdino I. Rebello, J.
Petitioner No. 1 is a partnership firm and Petitioner No. 2 is its partner. By the present petition, the Petitioners challenge the levy/charge/imposition of premium by Respondent No. 1 for the area covered by stair case rooms, lift rooms, above the topmost storey, lift wells and stair cases and passages thereto as set out in Regulation No. 35(2)(c) which can be exempted from computation of FSI under the provisions of the D.C. Rules by special permission of the Commissioner as being without the authority of law. In the alternative, to challenge the legality and validity of the letters/orders bearing No. EB/4415/A dated 2.9.1998 issued to the Petitioners by the Assistant Engineer, Building Proposal (City) IV, (Respondent No. 3) in his capacity as Officer of Respondent No. 1 calling on the petitioners to pay additional/enhanced premium for stair case and lift area and open space deficiencies in respect of the building being constructed on the suit property at the revised land rate of Rs.10,270/- per sq. mtr. which has been increased from Rs. 5870 per sq. mtr.
2. The Petitioners are the owners and developers of an immovable property bearing final plot No. 1245, T.P.S. IV of Mahim Division admeasuring 1217.4 sq. mtrs or thereabouts, situated at Old Prabhadevi Road, Prabhadevi, Mumbai 400 025. The Petitioners wanted to redevelop the property and accordingly submitted plans for redevelopment. They paid various amounts by way of scrutiny fees as also other amounts towards deposits that included transit shed deposit, debris deposit, fraudulent deposit, deposit for transplanting tree etc. According to Petitioners they were called upon wrongly to pay a sum of Rs.8,87,978/- towards staircase and lift area premium for 269.90 sq. mtrs. The said premium was charged at the rate of Rs. 3290/- per sq. mtr and they were informed that it was the applicable rate for the year 1995. On the said date, respondents further called upon the Petitioners to pay a sum of Rs.1,89,010/- towards road premium. According to Petitioners, no material was shown which would reveal the basis for charging the said premium. In order not to jeopardize the project, the Petitioners paid to Respondent a sum of Rs.8,87,978/- on or about 10.11.1995 towards premium for stair case and lift room and a sum of Rs. 1,89,010/- towards road premium, thus aggregating to Rs.10,76,988/-. The Petitioners were then finally issued a commencement certificate dated 17.2.1997 for construction upto plinth. Before issuance of commencement certificate, Respondent No. 3 wrongly directed the Petitioners to pay a sum of Rs.3,26,110/- towards additional premium for stair case and lift area. According to Petitioners no material was shown to indicate the basis on which the premium was claimed. In order to avoid confrontation and delay, the Petitioners paid the said amount on or about 31.1.1997. In the course of the construction and in pursuance to the representations made by the Petitioners, category A was granted to the structure standing on the property under MH & AD Act, 1976. As a result of which the Petitioners became eligible to consume additional FSI in respect of the property under Regulation 33(7) of the .D.C Rules, 1991. Petitioners accordingly submitted amended plans. As per amended plans, FSI of 449.65 sq. mtrs was covered under the stair case and lift as against 269.90 sq. mtrs as per the original plans. The plans were approved by Respondent No. 3. The Petitioners were also called upon to pay sum of Rs.12,14,610/- towards premium for stair case and lift area and Rs.6,04,000/- towards premium for open space deficiency and a sum of Rs.96,000/- towards balcony enclosure charges, thus aggregating to Rs.19,14,610/-. The Petitioners again to avoid confrontation and delay paid the said amount. Petitioners request for issuance for further certificate was pending when they were called upon to pay additional premium on account of revised land rate of Rs.10.270/- per
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