Case Note & Summary
The petitioners, three individuals engaged in business, filed a writ petition under Article 226 of the Constitution of India challenging communications dated 27 June 2017 and 16 October 2017, and Board Resolution No. 11223 dated 2 December 2014, whereby the City Industrial and Development Corporation (CIDCO) demanded a premium of Rs. 42,39,844/- for utilization of 0.5 additional FSI on their plot in a Growth Centre of Waluj Notified Area. The plot was allotted on prevailing market rate and a lease agreement was registered on 20 September 2010. The petitioners applied for development permission on 5 September 2013, which was granted on 14 February 2014, based on a basic FSI of 1.0. They later submitted a revised proposal on 14 November 2014 with 1.38 FSI. CIDCO's planning department informed them that approval for additional 0.5 FSI required permission. The petitioners contended that the basic permissible FSI in Growth Centres as per the sanctioned Development Control Regulations (DCR) was 1.5, and there was no provision to levy any premium on basic FSI. They relied on a technical remark by the Director of Town Planning, Maharashtra State, Pune, dated 2 April 2014, which stated that the basic FSI in Growth Centres is 1.5 and no premium can be charged on 0.5 out of the 1.5 FSI. The State Government, after hearing CIDCO representatives, directed on 19 August 2014 that the levy was contradictory to the sanctioned DCR. The petitioners argued that under the Maharashtra Regional and Town Planning Act (MRTP Act), the State Government's directives are binding on CIDCO, and a board resolution cannot override the DCR. CIDCO, in its reply affidavit, contended that the petitioners had constructed up to 1.38 FSI despite permission being granted only for 1.0 FSI, which was unauthorized. It further stated that as per the lease agreement, the petitioners were allotted the land with the right to construct only up to 1 FSI, and the petitioners had suppressed this fact. CIDCO argued that the petition should be dismissed for non-disclosure and unclean hands. The High Court reserved the judgment on 28 November 2018 and pronounced it on 8 January 2019. The provided text of the judgment is incomplete and does not contain the final decision or reasoning of the court.
Headnote
A) Town Planning - Development Control Regulations - Basic FSI - Maharashtra Regional and Town Planning Act, 1966, Sections 31, 149, 154 - Sanctioned Development Control Regulations for Waluj Notified Area specify basic permissible FSI in Growth Centres as 1.5 - Director of Town Planning opined that no provision exists to levy premium on basic FSI - State Government directed CIDCO that charging premium on 0.5 out of 1.5 FSI is contradictory to DCR - The matter involved examination whether CIDCO's demand was lawful (Paras 2-5).
B) Administrative Law - Powers of Development Authority - Board Resolution vs. Sanctioned Regulations - Maharashtra Regional and Town Planning Act, 1966, Section 154 - CIDCO Board Resolution No.11223 dated 02.12.2014 levying premium on 0.5 FSI above 1.0 FSI was challenged as contrary to the State Government's directives and the sanctioned DCR - Petitioners contended that State Government has overall control under Section 154 and that a board resolution cannot override statutory regulations (Paras 3-5).
C) Constitutional Law - Writ Jurisdiction - Suppression of Facts - Constitution of India, Article 226 - Respondents contended that petitioners suppressed the fact that the lease agreement limited construction to 1 FSI and that the construction made up to 1.38 FSI was unauthorized - The Court was to consider whether the petitioners approached with clean hands to invoke extraordinary jurisdiction (Paras 6-7).
Issue of Consideration
Whether CIDCO can levy premium or charges on utilisation of 0.5 FSI above 1.0 FSI in Growth Centres of Waluj Notified Area when the sanctioned Development Control Regulations stipulate basic permissible FSI as 1.5 and the State Government has directed that no premium is chargeable on basic FSI?
Law Points
- Basic permissible FSI in Growth Centres of Waluj Notified Area as per sanctioned Development Control Regulations is 1.5
- Sanctioned Development Control Regulations do not provide for levy of any premium or fees on basic FSI
- State Government's directives under Maharashtra Regional and Town Planning Act are binding on development authorities
- Board resolution cannot override provisions of sanctioned Development Control Regulations
- Section 149 of Maharashtra Regional and Town Planning Act attaches finality to decisions of State Government
- Section 154 of Maharashtra Regional and Town Planning Act gives State Government overall control over planning authorities
Case Details
2019 LawText (BOM) (01) 31
Writ Petition No. 1966 of 2018
S.S. Shinde and K.K. Sonawane
Mr. D.P. Palodkar (for Petitioners), Mr. S.B. Narwade (AGP for Respondent/State), Mr. A.S. Bajaj (for Respondent No. 2)
Shivprasad s/o. Ramlal Agrawal, Nandkishor s/o. Babulalji Agrawal, Yogesh s/o. Kalyanmalji Kasliwal
The State of Maharashtra and City Industrial and Development Corporation (CIDCO)
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging communications and board resolution demanding premium for utilization of 0.5 additional FSI on a plot in Growth Centre of Waluj Notified Area.
Remedy Sought
Quashing of impugned communications dated 27.06.2017 and 16.10.2017 and Board Resolution No.11223 dated 02.12.2014; direction to restrain CIDCO from levying premium or any amount on utilisation of 1.5 FSI.
Filing Reason
CIDCO demanded payment of Rs.42,39,844/- as premium for 0.5 additional FSI above 1.0 FSI on plot No.519 in Growth Centre No.1 of Waluj Notified Area, despite petitioners claiming that the sanctioned Development Control Regulations provide for basic FSI of 1.5 and no premium is chargeable on basic FSI.
Previous Decisions
The Director of Town Planning, Maharashtra State, Pune, opined on 02.04.2014 that basic FSI in Growth Centres is 1.5 and no premium can be levied. The State Government, after hearing CIDCO, directed CIDCO on 19.08.2014 that charging premium on 0.5 out of 1.5 FSI is contradictory to the sanctioned Development Control Regulations.
Issues
Whether CIDCO can levy premium or charges on utilisation of 0.5 FSI out of 1.5 FSI in Growth Centres of Waluj Notified Area when the sanctioned Development Control Regulations provide for basic FSI of 1.5 and no premium is specified.
Whether the Board Resolution No.11223 is valid and binding despite being contrary to the State Government's directives and the sanctioned Development Control Regulations.
Submissions/Arguments
Petitioners contended that the basic permissible FSI in Growth Centres as per the sanctioned Development Control Regulations is 1.5 and there is no provision to levy any premium or fees on the basic FSI. CIDCO's demand for premium on 0.5 FSI is ultra vires and contrary to the DCR. The State Government's directive dated 19.08.2014 is binding on CIDCO under Sections 149 and 154 of the MRTP Act. The Board Resolution cannot override the sanctioned DCR or the State's directive.
Respondents argued that the petitioners were granted development permission only for 1.0 FSI, but they constructed up to 1.38 FSI in contravention of the permission. As per the lease agreement, the petitioners' rights were limited to construction of 1 FSI, and the premium for allotment was charged on that basis. The petitioners suppressed these material facts and did not approach the court with clean hands, disentitling them to relief under Article 226.
Judgment Excerpts
The basic FSI in growth centers of each town of the CIDCO is now 1.5. The basic FSI is the limit up to which the construction or development can be carried out on the plot without charging any amount/premium.
In the said letter, the Director of Town Planning, Maharashtra State, Pune, has clearly mentioned that, as per the sanctioned Development Control Regulations of Waluj Notified Area, the basic permissible FSI in growth centre is 1.5, and there is no provision to levy premium / fees / any amount on 0.5 out of 1.5 FSI.
the Government i.e. respondent no.1, vide letter No. TPS3014/164/CR93/2014 dated 19 th August, 2014, has directed the CIDCO Authorities that, as per the sanctioned Development Control Regulations of Waluj Notified Area, basic permissible FSI in Growth Centre is of 1.5 FSI, and therefore, the act of CIDCO to levy premium / any amount / fees for 0.5 out of 1.5 FSI is contradictory to the provisions of sanctioned Development Control Regulations.
the petitioners have carried out construction in contravention of the permission granted by respondent no.2 on 14 th February, 2014. Such unauthorized construction / development is illegal act, and offence in terms of the provisions of the MRTP Act
Procedural History
Plot No.519 in Growth Centre No.1 of Waluj Notified Area was allotted to the petitioners on prevailing market rate. A lease agreement was registered on 20.09.2010 by CIDCO in favour of the petitioners. The petitioners applied for development permission on 05.09.2013, which was granted on 14.02.2014, considering basic FSI as 1.0. On 14.11.2014, the petitioners submitted a revised development permission considering 1.38 FSI. After scrutiny, CIDCO communicated on 04.12.2015 that permission for additional 0.5 FSI was required. The petitioners sought such permission. On 26.04.2017, the petitioners applied for approval of 1.5 FSI. CIDCO issued communication No.1132 on 27.06.2017 demanding Rs.42,39,844/- as premium for 0.5 additional FSI. On 19.07.2017, the petitioners made compliance and requested part completion certificate. CIDCO on 14.08.2017 stated occupancy certificate could not be granted as construction was above 1.0 FSI. On 11.09.2017, the petitioners submitted a detailed representation. On 16.10.2017, CIDCO issued communication No.1385 stating that as per Board Resolution No.11223 dated 02.12.2014, premium was leviable on 0.5 FSI above 1.0 FSI. The petitioners filed the present writ petition. The Court reserved judgment on 28.11.2018 and pronounced it on 08.01.2019.
Acts & Sections
- Constitution of India: Article 226
- Maharashtra Regional and Town Planning Act: Sections 31, 149, 154
