Case Note & Summary
The petitioners, M/s. Buildarch and its partner, owned a property at Prabhadevi, Mumbai, and sought to redevelop it. They submitted plans and paid various fees, including a premium of Rs.8,87,978 for staircase and lift area at the rate of Rs.3,290 per sq. mtr (1995 rate) and Rs.1,89,010 for road premium, totaling Rs.10,76,988. Subsequently, before issuance of the commencement certificate, the respondents demanded an additional premium of Rs.3,26,110 for the same areas at a revised rate of Rs.10,270 per sq. mtr. The petitioners paid this amount under protest to avoid project delays. They then filed a writ petition challenging the levy of premium for exempted FSI areas under Regulation 35(2)(c) of the D.C. Rules as being without authority of law, and alternatively challenging the specific demand letters. The court examined the provisions of the Mumbai Municipal Corporation Act and the D.C. Rules. It noted that the premium is charged for allowing additional FSI beyond the permissible limit, and the rate is determined by the Commissioner based on prevailing land rates. The court held that the Corporation is entitled to charge premium at the rate prevailing at the time of granting permission, and the petitioners had no vested right to the earlier rate. The payment under protest did not invalidate the demand. The court dismissed the petition, upholding the levy.
Headnote
A) Municipal Law - Levy of Premium - Regulation 35(2)(c) D.C. Rules - The court considered whether the Municipal Corporation can charge premium for exempted FSI areas at the prevailing land rate. The petitioners challenged the demand for additional premium at a revised rate of Rs.10,270/- per sq. mtr. The court held that the Corporation is entitled to charge premium at the rate prevailing at the time of issuance of the commencement certificate, and the petitioners have no vested right to the earlier rate. (Paras 1-6) B) Municipal Law - Payment Under Protest - The petitioners paid the premium under protest to avoid delay in construction. The court held that such payment does not bar the petitioners from challenging the levy, but on merits, the levy was found to be valid. (Paras 2-3) C) Municipal Law - Writ Petition - The court dismissed the writ petition, holding that the demand for additional premium at the revised land rate was lawful and within the powers of the Municipal Commissioner under the D.C. Rules. (Para 6)
Issue of Consideration
Whether the Municipal Corporation is entitled to charge premium for areas covered by staircase rooms, lift rooms, lift wells, and staircases above the topmost storey at the revised land rate, and whether the demand for additional premium at the revised rate is without authority of law.
Final Decision
The writ petition is dismissed. The demand for additional premium at the revised land rate is upheld.
Law Points
- Levy of premium for exempted FSI areas
- Regulation 35(2)(c) D.C. Rules
- Mumbai Municipal Corporation Act
- 1888
- premium at prevailing land rate
- no vested right to earlier rate
- payment under protest does not bar challenge
- writ petition maintainability
