BUILDARCH Vs. MUNICIPAL CORPORATION OF GREATER MUMBAI CONSTITUTED UNDER THE MUMBAI MUNICIPAL CORPORATION ACT

JUDGEMENT

(1.) Petitioner No. 1 is a partnership firn. 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 staircase rooms, lift rooms, above the topmost storey, lift wells and staircases 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 staircase 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 staircase 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 staircase 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.

(3.) According to petitioners, neither the B.M.C. Act nor the M.R.T.P., Act or D.C. Regulations empower and or authorise respondent No. 1 to charge any premium for the areas that can be exempted from computation of F.S.I., by the Commissioner. Under D.C. Regulation 35(2)(c) F.S.I, can be excluded in the island cities, suburbs and extended suburbs with the special permission of the Commissioner. The word premium reasonably denotes additional charge made for something and or demand made for something. On the areas that can be exempted there is no power to make a demand for exercise of discretion and therefore, the demand is illegal. To single out areas under staircase and lift for charging premium on the basis of the notional land area is illegal and or arbitrary. The demand therefore, by the respondents is ultra vires, illegal and unauthorized. The petitioners have prayed for a declaration that respondents do not have any power and authority to claim or charge or demand or levy in respect of development of properties any premium by whatever name called for the areas exempted from computation of F.S.I, under D.C. Regulation 35(2)(c).