Bombay High Court
Hall And Anderson Limited vs The State Of Maharashtra And 3 Ors on 30 December, 2021
Bench: S.J. Kathawalla, Milind N. Jadhav
Kanchan P Dhuri 1 / 8 IA-3445-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 3445 OF 2021
IN
WRIT PETITION NO. 1096 OF 2021
Hall and Anderson Limited ... Applicant
In the matter between :
Hall and Anderson Limited ... Petitioner
Versus
The State of Maharashtra and others ... Respondents
.........
Mr. Cyrus Ardeshir alongwith Mr. Ziyad Madon, Mr. Ravi Gandhi, Mr. M.A. Kamdar,
Mr. Rashmin Jain and Mr. Karan Thakker instructed by Kanga and Company for the
Applicant/Petitioner.
Mr. Abhay Patki, Addl.GP for the State.
Mr. Rajesh Patil alongwith Ms. Oorja Dhond instructed by Mr. S.K. Sonawane for the
MCGM.
.........
CORAM : S.J. KATHAWALLA, AND
MILIND N. JADHAV, JJ.
DATED : DECEMBER 30, 2021.
(Vacation Court)
P.C. :-
1. This Order disposes of Interim Application No. 3445 of 2021, filed by the Petitioner.
2. The Petitioner is the owner of a plot of land situated at Lower Parel, Mumbai, on which it is constructing Tower "C" of a building known as Lotus Enpar Kanchan P Dhuri 2 / 8 IA-3445-2021.odt Residency ("said Building").
3. On 4th August 2020, the Petitioner made a representation to Respondent No. 2 (with a copy marked to the Municipal Commissioner) under Regulation 4(3) of the DCPR 2034, seeking a clarification as to the interpretation of Regulation 48(5)(A)
(e) of the DCPR 2034, that the proposed second staircase to be constructed by the Petitioner in the said Building (Tower C) ought to be free of FSI without charging premium, being the additional staircase as per Regulation No. 48(5)(A)(e) of the DCPR 2034.
4. It appears that similar representations were also made by CREDAI- MCHI on 4th August 2020 and 26th August 2020 to the Chief Engineer of Respondent No. 3, who, by a communication dated 10 th September 2020, forwarded the same to Respondent No. 2 for his consideration, thereby seeking a clarification on the issues set out therein.
5. As there was no further action by Respondent No. 2, the Applicant thereafter addressed several reminder letters dated 21st September 2020, 4th November 2020, 7th December 2020 and 18th January 2021 to Respondent No. 2 calling upon Respondent No. 2 to issue a clarification. However, Respondent No. 2 failed to reply to the same or issue the clarification.
6. By a Government Resolution dated 14th January 2021, the Government of Maharashtra directed the planning authorities to decide whether to give a 50% Kanchan P Dhuri 3 / 8 IA-3445-2021.odt concession on the premium being levied on the additional FSI such as Staircase and Passages etc, in relation to ongoing projects, if 50% of the premium is deposited on or before 31st December 2021.
7. By a Demand Notice dated 27 th March 2021, Respondent No. 4 demanded that the Petitioner pay a sum of Rs. 64,13,600 towards part payment of premium for staircase, lift and lift lobby area for Tower C.
8. Aggrieved by the same, the Petitioner filed this Writ Petition challenging the Demand Notice dated 27 th March 2021, inter alia contending that the Petitioner was not liable to pay any amount as premium and seeking that the aforesaid representations be decided by Respondent No. 2. It is the Petitioner's case in the Writ Petition that, if the representations are decided in its favour, it will not be liable to pay the premium demanded by Respondent No. 3.
9. By an Order dated 20th July 2021, this Court disposed of the Writ Petition by directing Respondent No. 2 to decide the representations of the Petitioner, Respondent No. 3, CREDAI-MCHI and others, expeditiously and in any event within a period of 8 weeks from the date of the order after hearing all concerned through virtual hearing.
10. The Petitioner addressed two letters dated 27 th August 2021 and 4th October 2021 to Respondent No. 2, calling upon Respondent No. 2 to decide the issue, to which the Petitioner received no reply. The period of 8 weeks from the Order Kanchan P Dhuri 4 / 8 IA-3445-2021.odt dated 20th July 2021 expired on 14th September 2021. However, Respondent No. 2 failed to decide the issue within the time period stipulated.
11. On 13th October 2021, Respondent No. 2 filed Interim Application (L) No. 23656 of 2021 seeking modification of the Order dated 20 th July 2021 and sought extension of time of 6 to 8 weeks to decide the representations, on the ground that the same was a policy matter which could only be decided by the concerned Minister, Urban Development Department, and not by the Principal Secretary (i.e. Respondent No. 2).
12. By an Order dated 25th October 2021, this Court disposed of Interim Application (L) No. 23656 of 2021 by inter alia modifying the order dated 20 th July 2021 to provide that the aforesaid representations be heard by the Minister, Urban Development Department, instead of by Respondent No. 2, within a period of 8 weeks therefrom, after giving all concerned a physical hearing.
13. The Petitioner addressed a letter dated 20th December 2021 to the Minister calling upon him to decide the issue, to which it received no reply. The period of 8 weeks from the Order dated 25 th October 2021 expired on 23rd December 2021. However, the Minister, Urban Development Department has failed to decide the issue.
14. Mr. Cyrus Ardeshir, Ld. Counsel for the Petitioner, submitted that it appears unlikely that the Minister will decide the representation by 31 st December Kanchan P Dhuri 5 / 8 IA-3445-2021.odt 2021. He submitted that, in the event of the representation being decided against the Petitioner, and it being held that the premium is in fact payable, the Petitioner would be desirous of availing of the 50% concession provided for in the Government Resolution dated 14th January 2021. He submitted that, by the aforesaid Government Resolution, the Government of Maharashtra had directed the planning authorities to decide whether to give a 50% concession on the premium being levied on the additional FSI such as Staircase and Passages etc, in relation to ongoing projects, if 50% of the premium was deposited on or before 31st December 2021. He submitted that Tower C of the said Building is an ongoing project. He submitted on instructions that that the Petitioner had already paid more than 50% of the premium to Respondent No. 3, and that, by an application dated 29 th December 2021, it has brought the same to the notice of Respondent No. 3 and applied for the 50% concession. He submitted that the Petitioner has acted with diligence, and has followed up with Respondent No. 2 / the Minister several times, but to no avail. He submitted that the Petitioner ought not to be prejudiced by the failure of Respondent No. 2 / the Minister to decide the representations within the time period stipulated in the two orders dated 20 th July 2021 and 25th October 2021, and in any event prior to 31 st December 2021. He therefore submitted that, in the event of the Minister deciding the representation against the Petitioner after 31st December 2021, as a consequence of which the premium would be payable by the Petitioner, the Petitioner ought to be permitted to Kanchan P Dhuri 6 / 8 IA-3445-2021.odt take advantage of the Government Resolution dated 14th January 2021.
15. We have heard the parties.
16. By the Order dated 20th July 2021, this Court disposed of the Writ Petition by directing Respondent No. 2 to decide the representations within a period of 8 weeks. Respondent No. 2 failed to comply with the order of this Court. At the request of Respondent No. 2, this Court, by its Order dated 25 th October 2021, modified the Order dated 20th July 2021 by directing the Minister, Urban Development Department, to decide the representations instead of Respondent No. 2. By the aforesaid order, this Court also granted an extension of 8 weeks for the aforesaid purpose. The period of 8 weeks from the Order dated 25 th October 2021 expired on 23rd December 2021. Nevertheless, the Minister has failed to decide the representation.
17. We have noted that the Petitioner has acted diligently, and has addressed several reminder letters calling upon Respondent No. 2 / the Minister to decide the representations in accordance with the aforesaid two orders dated 20 th July 2021 and 25th October 2021. We have noted that no replies have been received to the same, and that the Minister has not heard the representation within the time period stipulated. We have also noted Mr. Ardeshir's statement on instructions that the Petitioner has made payment in excess of 50% of the total premium demanded by Respondent No. 3.
18. In these circumstances, the Petitioner is justified in seeking an order of Kanchan P Dhuri 7 / 8 IA-3445-2021.odt the nature prayed for in the interim application, that it be permitted to take the benefit of 50% concession provided in the Government Resolution dated 14 th January 2021, in the event of the Minister deciding the representation against it after 31 st December 2021. We do not think that the Petitioner ought to be prevented from taking advantage of the Government Resolution, simply because the Minister has failed to decide the representations prior to 31st December 2021. The Petitioner cannot be prejudiced. The Petitioner cannot be put to loss for no fault of the Petitioner.
19. We accordingly pass the following order:
a. If as a consequence of the order / clarification passed by the Minister, Urban Development Department on the representations, the Petitioner becomes liable to pay to Respondent No. 3 the premiums demanded by it in relation to the staircase, then, the Petitioner will be permitted a 50% concession on the same, in accordance with the Government Resolution dated 14 th January 2021, despite the aforesaid order / clarification having been passed after 31 st December 2021.
b. The Petitioner has stated that it has already paid more than 50% of the aggregate premium to Respondent No. 3. If that is so, Respondent No. 3 will refund the balance amount to the Petitioner or adjust the excess amount paid towards future payments to be made by the Petitioner. However, if it is found that the Petitioner has paid less than 50% of the premium, the Petitioner shall Kanchan P Dhuri 8 / 8 IA-3445-2021.odt be liable to pay to Respondent No. 3 the shortfall against the 50% concession, along with interest at the rate of 9% p.a. from the date of this order until the date of payment.
c. The Minister, Urban Development Department shall hear all the representations and give his decision thereon not later than 6 weeks from today. We make it clear that no further extension of time shall be granted on any ground whatsoever.
20. The Interim Application is disposed of in the aforesaid terms.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
Digitally
signed by
KANCHAN
KANCHAN PRASHANT
PRASHANT DHURI
DHURI Date:
2021.12.31
15:46:37
+0530