SHIVPRASAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Petition under Article 226 of the Constitution of India has been filed principally, taking exception to the impugned communications dated 27th June, 2017 and 16th October, 2017, bearing Nos.1132 and 1385, and the Board Resolution No.11223 dated 2nd December, 2014. The petitioner has also sought directions to restrain respondent no.2 from levying premium or any amount or fees on utilisation of 1.5 FSI in Growth Centers of Waluj Notified Area.

(2.) Briefly stated the case of the petitioner is that, plot No.519 in growth center No.1 of Nagar-1 of Waluj Notified Area came to be allotted to the petitioners on prevailing market rate. The said plot is situated in Gat No.181 of village Tisgaon, Taluka and District Aurangabad. The lease agreement was registered on 20th September, 2010, by respondent no.2 in favour of the petitioners. It is the contention of the petitioners that, 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. Respondent no.2 has no authority and jurisdiction to charge or collect premium/fees or amount in lieu thereof while according to development permission towards FSI or additional FSI etc. The petitioners have applied for development permission on 5th September, 2013, but the said development permission was submitted considering the basic FSI as 1.0 for stipulation in the draft development plan. The said development permission was granted in favour of the petitioners by respondent no.2 on 14th February, 2014. When the petitioners realized that, the basic FSI in the growth center is 1.5, the petitioners have submitted revised development permission on 14th November, 2014, considering 1.38 FSI. Respondent no.2 has carried out scrutiny, and after verification on 4th December, 2015, communicated the petitioners that, the petitioners are required to make some compliance. By way of said communication, the Planning Department of respondent no.2 has communicated the petitioners that, the revised proposal is submitted with 1.38 FSI and hence for grant of additional 0.5 FSI, permission of respondent no.2 would be necessary. Accordingly, the petitioners sought permission from respondent no.2 by requesting to grant said permission. On not receiving permission, the reminders were issued to respondent no.2.

(3.) It is the case of the petitioners that, meanwhile the petitioners submitted a proposal on 23rd May, 2016, for issuance of completion certificate in respect of commencement / building permission issued on 14th February, 2014. Respondent no.2 again raised certain queries vide letter dated 27th May, 2016. Therefore, the petitioners applied to respondent no.2 for approval of 1.5 FSI on 26th April, 2017. In response to the application of the petitioners, respondent no.2 issued impugned communication No.1132 on 27th June, 2017, informing the petitioners that, they are required to pay an amount of Rs.42,39,844/- towards alleged 0.5 additional FSI. It is contended by the petitioners that, on 19th July, 2017, the petitioners have made compliance of the queries made by respondent no.2, in its letter dated 27th May, 2016, and requested to issue part completion certificate. Respondent no.2, on 14th August, 2017, communicated the petitioners that, the occupancy certificate cannot be granted as construction on the site is above 1.0 FSI and falls in 1.00 to 1.50 FSI category. On 11th September, 2017, the petitioners have submitted detailed representation to respondent no.2, and requested to grant permission as sought by Planning Department for occupancy certificate. According to the petitioners, there is no provision for charging any amount / premium on the basic FSI. On 16th October, 2017, respondent no.2 has issued impugned communication No.1385 to the petitioners, wherein it is mentioned that, as per the Board Resolution No.11223 dated 02.12.2014, the CIDCO has decided to levy premium on 0.5 as additional FSI, which is above 1.00 FSI, permissible in the growth centers of CIDCO. Therefore, the petitioners are required to pay the premium for 0.5 FSI. Accordingly, the petitioners were asked to deposit the amount.