Bombay High Court
M/S. Neelkamal Realtors Suburban ... vs The State Of Maharashtra Thr. Principal ... on 7 April, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:16972-DB
WP-13935-2023_C_.doc
Andreza
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13935 OF 2023 [Civil]
1. M/s. Neelkamal Realtors Suburban
Private Ltd, a Company registered under
the provisions of the Companies Act, 1956
having their registered office at DB Central,
Moulana Azad Road, Rangawala
Compound, Jacob Circle, Mumbai - 400
011.
2. Mr. Ishaq Balwa, an Authorised
representative of Petitioner No. 1 having his
Office at DB Central, Moulana Azad Road,
Rangawala Compound, Jacob Circle,
Mumbai - 400 011. ... Petitioners
Versus
1. The State of Maharashtra, Through its
Principal Secretary Urban Development
Department, through Government Pleader,
High Court, Appellate Side, Bombay.
2. The Mira Bhayander Municipal
Corporation, having its office at Indira
Gandhi Bhavan, Chhatrapati Shivaji Maharaj
Marg, Bhayander West Thane - 401101,
through Commissioner - email:
[email protected]
3. Municipal Commissioner-Mira Bhayander
Municipal Corporation, having its office at
Indira Gandhi Bhavan, Chhatrapati Shivaji
Maharaj Marg. Bhayander (West), Thane -
401101. ... Respondents
***
Mr. Girish Godbole, Senior Advocate A/W Rutuja Patil, Yohann
Shah, Hasan Mushabber i/by Negandhi Shah & Himayatullah,
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Advocates for the Petitioner.
Mr. Y. D. Patil, AGP for Respondent-State.
Mr. N. R. Bubna, Advocate for Respondent Nos. 3 and 4.
---------------------------
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE,J.
RESERVED ON: 12th DECEMBER, 2024
PRONOUNCED ON: 7th APRIL, 2025
JUDGMENT (Per Bharati Dangre, J.)
1. M/s. Neelkamal Realtors Private Limited Company registered under the provisions of Companies Act, engaged in the business of development and construction within and around Mumbai and Thane District is aggrieved by the communication addressed to it by the Mira Bhayander Municipal Corporation (MBMC) dated 29.03.2022, thereby rejecting the request of the Petitioner to claim the benefit of the Unified Development Control and Promotion Regulations (herein after referred to UDCPR) and permitting it to switch to the new scheme for the reasons therein.
2. We have heard learned Senior Counsel Mr Godbole for the Petitioner, Mr. Bubna for the Municipal Corporation and the learned Additional Government Pleader for the State.
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7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc By consent of the parties, we issue 'Rule' and take up the petition for final hearing, in the wake of the urgency expressed.
3. Before we come to the impugned Orders which are assailed in the Writ Petition and adjudicated upon its legality or otherwise, we must refer to the background facts resulting into passing of the impugned orders.
The Petitioner no. 1 M/s Neelkamal Realtors is the owner of contiguous pieces of land situated at Village Mira (now Mahajanwadi) and also a Developer and is concerned with land bearing CTS Nos. 4100 [part], 4362, 4363, 4454, 4455, 4456, 4513, 4515, 4516, 4517, 4518, 4519, 4520, 4547, 4548, 4549, 4570 to 4572, 4604, 4610, 4611, 4614, 4659, 4638, 4639, 4647, 4686 to 4690, 4691, 4692, 4702, 4704 to 4709, 4710 to 4721, 4724 to 4732 and corresponding S Nos 95/10 to 12, 14, 15, 97/3 [part], 94/1, 2 and 260 (part), located in Dist Thane. The aforesaid parcel of land fall within the jurisdiction of Respondent no. 2- MBMC.
It is the case of the Petitioner that in the year 2008-2009, pursuant to the State of Maharashtra formulating and notifying the "Rental Housing Scheme" under Section 154 of the Maharashtra Regional Town Planning Act 1966 (MRTP Act), the same was implemented by Respondent no.2 within its jurisdiction. Page 3 of 25
7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc The Government of Maharashtra through Urban Development Department, on 26.11.2008, issued Notification purportedly under Section 20(4) of the MRTP Act, 1966 and sanctioned modification to the Regional Plan of Mumbai Metropolitan Region, thereby introducing DCR 15.40 for Rental Housing Scheme, which contemplated grant of FSI of 4.00 on the plot area out of which FSI was to be consumed on 25% land area, to be conveyed to Maharashtra Metropolitan Regional Development Authority (MMRDA) and the remaining FSI of 3.00 was to be used on 75% of land. The building for MMRDA was to comprise of small tenements with an area of 14.46 square metres, which was proposed to be used by MMRDA for implementing Rental Housing Scheme for homeless people. The scheme contemplated locational/clearance by MMRDA.
On 31.12.2010, the Municipal Corporation of Mira Bhayander sanctioned land of a larger land of the Petitioner which contemplated implementation of Rental Housing Scheme on the basis of location clearance given by MMRDA. Accordingly, the Petitioner commenced the construction and constructed eight multi storeyed building on 25% land area by using FS-I whereas on the remaining area other buildings came to be constructed.
4. On 17.05.2012, the Government of Maharashtra issued a Resolution and constituted a Committee for submitting a report Page 4 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc regarding rationalizing and implementation on Rental Housing Scheme and somewhere in February 2013, the Committee submitted its final report to the Government.
Based on the recommendations of the Committee, on 30.11.2013, the Government of Maharashtra published a Notification under Section 37(1aa) of the MRTP Act inviting claims and objections regarding the proposed modification in the Regional Plan of Mumbai Metropolitan Region as well as the development plans of various Municipal Corporations/Councils, who were the Planning Authorities under Section 2(19) of the MRTP, as it proposed to abolish the Rental Housing Scheme of MMRDA.
5. On 07.08.2014, a final notification was issued by the State Government modifying the Regional Plan and the Development Plan of various planning authorities thereby scrapping the Rental Housing Scheme. Clause 11 of he Notification prescribed that the Rental Housing projects for which location/clearance has been granted by the MMRDA but the commencement certificate has not been issued, can be allowed to be continued under the said scheme provided such proposal is submitted to MMRDA within 30 days and it is further submitted by MMRDA to the State Government for approval. It was also provided that in cases where Rental Housing Schemes is already approved by Page 5 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc grant of completion certificate, with the prior approval of the State Government, they could be converted in to affordable Housing Scheme.
6. On 26.08.2024, the Government of Maharashtra issued another Notification under Section 20(4) of the MRTP 1996 Act thereby amending the Regional Plan by providing that the Rental Housing Scheme shall be discontinued but only those projects in which locational/clearance has been granted by MMRDA will have an option to submit the proposal to MMRDA to continue the project under the Scheme within thirty days of publication of Notification and thereafter only after scrutiny by MMRDA and sanction by the State Government, such project could continue as Rental Housing Scheme Projects.
7. On 21.12.2020, the UDPCR was made applicable to all Planning Authorities and Regional Plan areas except MCGM.
The UDPCR was sanctioned by the State Government under Section 37(1)(aa)(c) and Section 20(4) of MRTP on 02.12.2020 and it was published on 02.12.2020 by the State Government in its Gazette, the UDPCR contain a savings clause to the following effect :
"SAVINGS - Notwithstanding anything contained in these regulations, any development permission granted or any development proposal for which any action is taken under the erstwhile regulations shall Page 6 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc be valid and continue to be so valid, unless otherwise specified in these regulations.
Provided that, the words 'action taken' in this regulation shall also include the issuance of letter for payment of Development and other Charges issued after approval of the proposal in principle.
Provided further that if any development permission has been issued before the date of coming into force of these regulations and if work is not commenced within validity period and such permission is not renewed in time i.e. before expiry of validity period of one year, then the said development permission shall be deemed to have been lapsed. However, there is no bar to further renew the valid permission from year to year; but such extended period shall in no case exceed three years.
Provided further that, it shall be permissible for the owner to -
a) Either continue to develop the project as approved under the erstwhile regulations in toto; and for that limited purpose erstwhile regulation shall remain in force.
"In case the commencement certificate is issued and the construction is in progress/part occupancy issued, and if plans for additional built up area as per erstwhile regulations are submitted to the Authority either before or after coming into force of these regulations by consuming/utilising FSI / TDR as per the erstwhile regulations; but could not be sanctioned due to the Page 7 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc pandemic situation arisen out of COVID-19, the same may be allowed to be permitted as per the erstwhile regulations in toto including the payment of premium/charges, if the applicant so desires. However, such cases shall be disposed by the authority before" 31" January, 2022; else such applicants will have to submit the fresh proposal as per these regulations.
Provided further that, if any development proposal as per erstwhile regulations is submitted before the date of coming into force of these regulations either upto maximum building potential or part of maximum building potential for which any action is not taken under the erstwhile regulations, due to the pandemic situation arisen out of COVID-19, it shall be permissible for the owner to continue the project as per the erstwhile regulations in toto upto maximum building potential as per erstwhile regulations, if applicant so desire and for that limited purpose the erstwhile regulations shall remain in force. However, such cases shall be disposed by the authority before 31st January, 2022 else such applicants will have to submit the fresh proposal as per these regulations or
b) Apply for grant of revised permission under the new regulations, if the project is on-going and the occupation certificate has not been granted fully. In such cases, charges/premium etc. paid earlier against Page 8 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc the FSI sanctioned, exemptions granted in side margins, allowing Residential/ Commercial use on the Industrial Zone as per erstwhile regulations shall be deemed to have been paid against such earlier sanctioned FSI/exemptions/allowance of use. In such cases the charges/premium under these regulations shall be leviable against the revised permission and the charges premium paid earlier shall be adjusted against the revised charges/ premium under these regulations. Provided that no refund is permissible in any case.
c) In case the development is started with due permission before these regulations have come into force, and if the owner/developer, at his option, thereafter seeks further development of plot/layout/buildings as per these regulations, then the provision of these regulations shall apply to the balance development. The development potential of such entire plot shall be computed as per these regulations from which the sanctioned FSI of buildings/part of buildings which are proposed to be retained as per approved plan shall be deducted to arrive at the balance development potential of such plot and ancillary FSI shall be permissible only on such balance potential. Such balance potential can be distributed on one or more existing, earlier/newly proposed building/s in a group housing scheme. "In case of approved layouts in group housing scheme Page 9 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc with buildings having height between 15 m.
to 24 m., and complying with provisions mentioned in Regulation No. 1.3(93) (xiv), NOC from Chief Fire Officer shall not be necessary, if the applicant is applying for revised permission under these regulations."
8. It is the claim of the Petitioner that in the wake of the saving clause, to the aforesaid effect, which permitted the developer to apply for revised permissions in the case of projects to take the benefits of FSI sanctioned, exemptions, etc. as per the erstwhile Regulations with deemed provision, that premium paid thereunder would be treated as paid under the UDPCR. Reliance is also placed upon the guidelines issued by the State Government on 01.03.2021, pursuant to the constitution of Committee under the Chairmanship of Director, Town Planning Maharashtra State, Pune and it is contended that these directions were to be construed as the one issued under Clause 1.10 of the UDPCR and it is the contention of the Petitioner that even these guidelines permitted the Developer to continue with a mandate of earlier proposals before 31.07.2021. Further, reliance is also placed upon the letter addressed by the Urban Development Department to the President CREDAI-MCHI with regard to conversion of the approved Rental Housing Project pursuant to the letter dated 29.04.2021 addressed to the Principal Secretary, seeking a clarification confirming that for projects on Rental Housing wherein development Page 10 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc agreement and/or conveyance has not been executed in favour of MMRDA, such projects will be eligible for transition to the UDPCR in accordance with Regulation 1.5 and the VDD Order dated 01.03.2021. This communication received a response at the end of the Government on 21.05.2021 to the following effect :
"... With reference to your above subject letter regarding conversion of earlier approved rental housing project as per UDCPR provisions, I am instructed to inform you that since the rental housing scheme is the Voluntary Scheme submitted by project proponent on their own private land, there is no prohibition to cancel or convert the proposal as per UDCPR provisions, provided that:
a) There is no Violation of any contractual obligations if any with the authority, which makes transition inoperative.
b) The earlier permissions/conversions/benefits granted by the authorities including Locational Clearance for the proposal stands withdrawn and any permissions/approvals/conversions required in the converted proposal shall be scrutinized and decided afresh by the authority as per the provisions of UDCPR and policies in force.
c) As regards refund/adjustment of fees, premium charges etc. paid earlier, the same shall be dealt with as per the relevant provisions of UDCPR and policies.
d) In case of Scheme in progress where land and/or tenements are already handed over to the authorities, will not be allowed to claim return of Page 11 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc the same while converting the scheme as per UDCPR provisions.
9. In the wake of the aforesaid clarification, the Petitioner through its Architect, processed its proposal which was scrutinized under UDCPR Regulation no. 3.4 as well as 6.2.1 and 6.2.3. Since the project was included in the industrial zone, and it had received approval under the Rental Housing Scheme, the Architect of the Petitioner, furnished the plans taking into consideration the FSI 4.0. The proposal clearly mentioned that part Occupation Certificate has been obtained for building no. 2 to 5 and even Environmental Clearance is also received along with the No Objection from the Forest Department since the project was situated closer to Sanjay Gandhi National Park.
Pursuant thereto, on 09.11.2021, the Municipal Corporation issued the Commencement Certificate in exercise of power under Section 44, 45 of the MRTP Act, 1966, which was subject to several stipulations which are normally included when a building is permitted to be constructed. The Corporation also addressed a letter to the Commissioner of MMRDA, highlighting that the total area in the proposal of MMRDA as Rental Housing Scheme on amalgamated land of 100352.81 square metres and out of the same, 56,113.00 square metres was proposed for MMRDA Rental Housing Scheme for which the location clearance was obtained in 2009. The Government issued permission to the Petitioner and the Architect for construction, with Page 12 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc approved plans for 4.00 FSI and with reference to such permission under 3.00 FSI, 26 building of self component and eight buildings of rental component for 1.00 FSI are to be developed. Mentioning that the Commencement Certificate for building permission was issued and part of the Occupation Certificate has been issued for the commercial building and building no. 5 on 26.11.2019, with the enforcement of UDCPR Regulations with reference to clause 1.5 since an application was made to issue amended building permission, a No Objection Certificate was prayed for to develop the building as per UDCPR.
10. However, on 31.05.2021, MMRDA addressed a communication to the Municipal Commissioner, stating that in the wake of clarification by the Urban Development Department by 21.05.2021, the scheme can be converted from Rental Housing Scheme to UDCPR as the applicant has not executed agreement with MMRDA and therefore it has no objection for its conversion under the UDCPR.
11. On 05.01.2022, the proposal of the Petitioner was returned by stating that the necessary proposal is to be submitted as per the check list under the approved UDCPR and the Government Circular which should be properly paginated.
12. This constrained the Petitioner to approach this Court by filing Writ Petition No. 1032 of 2022, seeking a mandamus for quashing and Page 13 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc setting aside of the aforesaid communication or in the alternative, praying for issuance of IOD and full CC for the entire development plan as per revised plan, submitted on 13.09.2021 under the UDCPR 2020.
13. It is worth to note that the clarification issued by the State Government on 21.05.2021 was stayed by the Urban Development Department on 04.02.2022 but on 20.08.2024, the Deputy Secretary of Urban Development communicated to the Metropolitan Commissioner that the clarification issued by the State Government on 21.05.2021 is cancelled/revoked, which had clarified that the earlier sanctioned Rental Housing Schemes are eligible for conversion subject to the terms and conditions specified in Clause 1.5 (Savings) of UDCPR, sanctioned on 02.12.2020.
14. When this was pointed out to us in the Writ Petition, the learned Senior Counsel Mr. Godbole agreed to advance his submissions without the aid of this clarification and we permitted him to do so. We directed the Corporation to make it stand clear before us in light of the withdrawal of the communication by the State Government.
15. On 07.10.2024, the Corporation addressed a communication to the Petitioners in regard to its proposal seeking construction permission along with revised plan approval as per the UDCPR whereby it clarified that the Rental Housing Scheme was implemented Page 14 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc by the Government in Mumbai Metropolitan Region, which permitted FSI of 4.0 with a condition that the units constructed on 1.0 FSI along with the rental units shall be mandatorily transferred free of cost to MMRDA. Though the Government converted the Rental Scheme into affordable housing scheme in the year 2014, the Petitioner developer continued under the Rental Scheme and by obtaining extension from MMRDA, completed constructions of the buildings under sale-able components and started occupying the buildings but the RCC construction of buildings that were to be transferred free of costs to MMRDA was not done.
It was further stated that the developer in the context of the clarification of the Government dated 21.05.2021 submitted the proposal seeking development permission for EWS/LIG under the provision of UDCPR instead of pre-approved rental scheme which was rejected. Stay was granted by the UD to its clarification dated 21.05.2021 which was cancelled on 20.08.2024 and therefore it is now mandatory for the developer to complete the proposal under the pre- approved Housing Scheme and since the project is now under completion in form of a special scheme it cannot be converted under the UDCPR as it is obligatory on part of the Developer to transfer the eight buildings constructed by taking benefit of the scheme, to the MMRDA.
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16. In wake of the aforesaid, the learned Senior Counsel Mr. Godbole has urged before us that the benefit of the UDCPR is denied to the Petitioner despite the fact that it had sought revised permission for the balance work to be carried out and as per Clause 1.5, which is a Saving Clause, if the project is "ongoing" and the Occupation Certificate has not been granted fully, then the Petitioner is allowed to take benefit of Clause (b) of Clause 1.5. It is also submitted that if the development is started with due permission before the UDCPR came into force and if the Developer seek further development as per the new Regulation, then the Regulation shall apply to the balanced development and development potential of such entire plot shall be computed as per the Regulations from which the sanctioned FSI of building/part of the building which are proposed to be retained shall be deducted to arrive at a development potential of such plot. According to Mr. Godbole, the Petitioner is entitled for this benefit as his project is ongoing and even according to the Corporation, full Occupation Certificate is not received except a small part which in any way cannot be a ground for refusing the conversion of the project of the Petitioner under UDCPR. It is urged before us that as per Clause (b) of Regulation 1.5 of UDCPR, the developer has an unfettered right to do so and he would submit that several schemes undertaken in accordance with erstwhile Regulations were permitted to migrate to UDCPR and no such fetters have been imposed. It is also his submission that on account of the Government Page 16 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc directive dated 14.01.2021, reduction of fifty percent in such premium was a matter of right and in fact while disposing off the Writ Petition No.103 of 2022 on 04.02.2022, this Court had clarified that the fresh proposal filed by the Petitioner shall be decided by the Corporation by treating it as a proposal received prior to 31.12.2021. It is also his case that all the requirements for grant of deemed approval under Section 45(5) of the MRTP Act, 1966 have been fulfilled and, therefore, the proposal for conversion is deemed to have been approved and could not have been rejected on the first occasion on 05.01.2022 on the ground that there was no pagination and when the proposal was submitted once again, the deeming fiction operates w.e.f 30.11.2021, for all benefits with fifty percent premium under UDCPR in terms of the Notification dated 14.01.2021.
17. The reliefs in the Petition are strongly opposed by Mr. Bubna, learned Counsel appearing for the Corporation as well as the learned Additional Government Pleader representing the State Government. It is the specific stand of the Municipal Corporation that in terms of the Order passed by the High Court, the Petitioner submitted a fresh proposal and this was to be treated as a proposal submitted before 31.12.2021 and accordingly the fresh proposal was submitted, which on due consideration was rejected. A specific stand is adopted by the Corporation, to the effect that total thirteen construction projects were sanctioned under the Rental Housing Scheme and out of them ten Page 17 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc projects are completed and almost 4900 tenements have been handed over to MMRDA. It is submitted that out of the remaining three projects, almost 4800 tenements are yet to be handed over to MMRDA. It is specific of the Corporation that the Petitioner availed the benefit of Rental Housing Scheme of the State Government and, on account of which, he was entitled to avail FSI of four against the FSI of one and therefore when he has taken benefit of the scheme, he must discharge his obligation, which require him to hand over eight buildings consisting of G+17 floors having 2967 residential tenements and 82 commercial units, aggregating to 3049 units out of 4800 units, free of cost.
It is stated by the Corporation on oath that the Petitioner has carried out RCC construction of eight buildings but have not finished the tenements and kept them incomplete though he has completed the sale-able components in the scheme by using the additional FSI scheme on account of the Rental Housing Scheme but has not been granted Occupancy Certificates for the said buildings as he is yet to hand over the tenements to MMRDA. It is specific case of the Corporation that the Petitioner cannot be permitted to renege out and refuse its discharge of contractual obligation.
18. The State Government through the Joint Director of Town Planning has also filed an affidavit wherein it make reference to the Page 18 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc UDCPR sanctioned under Section 37(1)(A)(c) and Section 20(4) of the MRTP Act on 02.12.2020, which came into force from 03.12.2020. By relying upon Clause (b) and (c) of Regulation 1.5, the State Government has clarified that though the Respondent no.1 had issued a letter to the President CREDAI-MCHI on 21.05.2021 in respect of the policy under Regulation 1.5 of UDCPR, it noticed the misinterpretation of the said letter as it would have resulted in a situation that the Rental units or the flats which are to be handed over to the Planning Authority will not be handed over and dual benefits will be claimed by the land owner/developer, it was therefore constrained to withdraw this letter on 04.02.2022. Reliance is placed upon Sub-Clause (5) of Clause 1.9 of UDCPR to submit that if any question arises as per interpretation of any of these demolitions, the matter shall be referred to the State Government and the decision of the State Government shall be final and binding.
19. On hearing the rival contentions advanced before us, it is to be noted that the Rental Housing Scheme was notified by the State Government in the year 2008 and MMRDA was appointed as a Recommending Authority and the respective Municipal Corporation within whose jurisdiction the land was located, as the authority implementing the scheme, by scrutinizing and granting the building planning approval. The Rental Housing Scheme announced by the State under Section 154 of the MRTP Act, 1966 was also implemented Page 19 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc by the Mira Bhayander Municipal Corporation and the schemes received sanction from the State Government under Section 20(4) of the MRTP Act, 1966.
20. The Petitioner M/s. Neelkamal Realtors, a company engaged in the business of development and construction, submitted a proposal to the Respondent No.2-Corporation for development of the entire lay out admeasuring 1,01,248.00 square metres for development of its part land under the Rental Housing Scheme and part of the land as per the prevailing Regulations of Mira Bhayander Municipal Corporation. Location Clearance was granted for the part land on which the Rental Housing Scheme was proposed by MMRDA. The Planning Authority i.e. MBMC scrutinized the building plans and accorded Commencement Certificate (CC) on entire lay out on 13.11.2009. The CC issued was for an amalgamated lay out, which was partly approved under the then prevailing Regulations of the Corporation and partly under the Rental Housing Scheme. Though the built up area potential as per the prevailing Regulations was basic FSI 1.0, under the Rental Housing Scheme over all FSI 4.0 was sanctioned under which built up area as per 1.0 FSI was required to be constructed and handed over to MMRDA and balance 3.0 FSI was the sale component.
The Rental Housing Scheme which was proposed on the plot of 50,202.81 square metres, made a built up area of 1.61,994.58 square Page 20 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc metres available under the sale component whereas a built up area to 50,202.81 square metres was to be handed over to MMRDA as per the Scheme. Admittedly, the Petitioner was under an obligation to construct this area and hand it over to MMRDA.
It may be true that the Rental Housing Scheme was ultimately scrapped in the year 2013-14 and the UDCPR 2020 clearly reflect that no project under Rental Housing Scheme is permitted after 30.11.2013.
Though the Rental Housing Scheme was scrapped, however, the ongoing schemes were allowed to continue and taking advantage of the FSI made available, the Petitioner continued under the said Scheme and constructed the sale-able component which included 26 buildings and even handed over the possession of the said flats/units to the prospective purchasers. Though the scheme contemplated the implementation of the two wings of the project simultaneously, the Petitioner did not complete the construction of the eight buildings which were to be handed over to MMRDA but enjoyed full benefit of 3 FSI by constructing 26 buildings as its sale-able component. When it came to constructing the buildings on the basis of one FSI, to be handed over to MMRDA, it was slow in undertaking the construction and in the meantime on UDCPR 2020 coming into force, is attempting to take benefit of the Saving Clause by submitting that its project is "ongoing" and the Occupation Certificate has not been granted fully. Page 21 of 25
7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc He is trying to take benefit of Clause (b) of Regulation 1.5 of the UDCPR which permit in case of an ongoing project, the charges of the premium, etc. paid earlier against the FSI sanctioned, exemptions granted in side margins, allowing Residential/Commercial use in the Industrial Zone as per erstwhile regulations as being deemed to have been paid.
On availing the Rental Housing Scheme, for which the locational clearance was obtained by the Petitioner on 26.06.2009 and the Commencement Certificate granted on 01.03.2009, he had to construct 34 buildings. As per the prevailing Regulations, he was entitled for one FSI but for availing four FSI, he could put to use only the buildings constructed by use of three FSI and the building constructed on one FSI portion, he had to surrender.
Though the Petitioner continued to enjoy four FSI and despite the Rental Housing Scheme abolished in the year 2013-14, he continued with the construction of the buildings by use of three FSI and sold the units in 26 buildings, the Petitioner did not convert himself into a new scheme since he wanted to enjoy the fruits of the additional FSI.
Merely because the actual construction activity is ongoing, do not make us believe that it is an "ongoing" construction when the Page 22 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc Petitioner deliberately dragged its feet in completing the eight buildings which it had to transfer the MMRDA. After availing the full benefit of the Rental Housing Scheme, now we will not permit the Petitioner to turn around and take benefit under the UDCPR and then make an attempt to wriggle out of the Rental Housing Schemes by saying that it is already scrapped by the State Government. In fact without handing over the units of the MMRDA, the Petitioner cannot even enjoy the benefit of the buildings which he had constructed by availing three FSI and he has made sheer profits by selling the units in the 26 buildings but has failed to satisfy the reciprocal obligation to construct eight other buildings by availing FSI and hand it over to MMRDA. It is a specific stand of the Corporation that fifty percent exemption was granted from development charges on account of COVID but this cannot be extended now and particularly when the project is not an "ongoing" project. It may be true that the eight buildings shall not go to the Corporation but they must go to MMRDA and MMRDA is misunderstood to have stated that it do not need the said buildings and for this purpose, reliance is placed by Mr. Godbole on the communication by the MMRDA which has accorded No Objection for conversion of the scheme with a conscious mind that the units were to be allotted to it.
We may not be concerned about what MMRDA says as we find that for availing the benefit of four FSI, the scheme contemplated of Page 23 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc handing over of eight buildings for rental accommodation and ultimately, it will go to the benefit of those who lack housing accommodation and may be put to use either by Corporation or by MMRDA. The specific stand of the Corporation is that the Petitioner has been dishonest as he availed the profits through the sale-able units but now is avoiding to hand over almost 3000 flats as per the reciprocal obligation.
At one point of time we have heard Mr. Godbole stating that he will demolish the eight buildings but we do not think that this is going to serve any purpose as ultimately, the scheme under which the benefit was availed by the Petitioner was for larger public benefits and depriving the MMRDA of the same would be nothing but loss to the public exchequer. As of now, the State Government has joined hands with the Corporation as it has withdrawn it clarification which would have result in the consequences that would have precluded the Developers/Owners availing the benefit of Rental Housing Scheme from handing over such portion of the component which was to go to the benefit of public exchequer. According to the State Government, the units in the buildings constructed on the sale-able components also becomes illegal because there is no discharge of obligation by the developer which was reciprocal i.e. construction of eight more buildings with the flats being handed over to MMRDA. In that sense, the buildings are illegal but we do not want to encourage this illegality Page 24 of 25 7th April 2025 ::: Uploaded on - 15/04/2025 ::: Downloaded on - 19/04/2025 08:04:11 ::: WP-13935-2023_C_.doc but compel the Petitioner to discharge its obligation of completing the eight building and handing it over as per the original scheme. It is for this reason, we are not ready to construe that the scheme of the Petitioner is an "ongoing" project as we will not permit him to take benefits of its own illegality and now wriggle out on its obligation on an innocuous prayer of securing benefit of UDCPR specific Clauses (b) and
(c) of the Saving Clause 1.5.
21. We find no merit and substance in this Writ Petition, the Petition is dismissed.
MANJUSHA DESHPANDE, J BHARATI DANGRE, J
ANDREZA RODRIGUES Digitally signed by ANDREZA
RODRIGUES EPEREIRA
EPEREIRA Date: 2025.04.15 15:05:46 +05'30'
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