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Judgment
Heard.
By this intra-court appeal, appellants who are registered owners of Plot No.22 situated at Scheme No.31, Route Nos.6 and 7, Indore are aggrieved
by the order dated 14.10.2016 passed in W. P. No.946/2014, by which learned Writ Court upheld the order dated 17. 01.2014, whereby their
representation has been rejected so also the order dated 14.03.2014, rejecting the application of the appellants for building permission on the ground
that premium on FAR (POF) in terms of Indore Development Plan, 2021 has not been deposited.
Facts of the case are that the appellants are owner of the Plot No.22, Scheme No.31, Route Nos.6 & 7, Indore. The appellants intend to construct
a full commercial building on the plot hence, they had applied for building permission on 06.12.2010 but the same was rejected on the ground that
appellants had not disclosed as to how they are entitled for 2.5% FAR and full commercial use. The subsequent application filed by the appellants was
also rejected vide order dated 25.04.2012 on technical ground and thereafter, the appellants had submitted the amended proposal which according to
the appellants was sanctioned in the note sheet dated 26.10.2012 and on 26.10.2012, a sum of Rs.2,25,600/- was demanded which was deposited but
thereafter, instead of sanctioning the map a sum of Rs.35,78,880/- was demanded towards POF charges and subsequently vide another memo dated
30.10.2012, a sum of Rs.65,85,195/- was demanded towards POF and on 5.12.2012, the appellants were informed by respondent No.3 that building
permission has been granted but the appellants are liable to pay the amount of POF. According to the appellants, legal opinion obtained by Indore
Municipal Corporation is in their favour and Writ Petition No.5836/2013 was filed by the appellants before this Court and thereafter, the appellants
were informed that their permission has been rejected on account of non-payment of POF amount.
On 08.10.2013, W. P. No.5836/2013 was disposed of by directing the respondents to decide the appellants' representation and by the impugned
order dated 17.01.2014, the representation has been rejected.
The contention of the learned counsel for the appellants before the learned Writ Court was that they are entitled for sanction of building permission
without payment of POF charges. It is also pointed out that in case of another owners of Plot Nos.18, 19/1, 34 and 35, the sanction for full commercial
construction has been granted without requiring them to pay the POF charges, therefore, the appellants are discriminated in this regard.
The stand of the respondents/Indore Municipal Corporation is that the Indore Development Plan, 2021 came into force w.e.f. 1. 01.2008 and prior
to that, map of the appellants in respect of Plot No.22 was sanctioned by the Indore Municipal Corporation somewhere in 1997 for residential purpose.
Therefore, after coming into force of Indore Development Plan, 2021, they are required to pay POF charges hence, no error has been committed by
the respondents in this regard. If the appellants want to use the plot for commercial purpose, then they are required to pay the POF charges and
prayed for dismissal of the appeal.
It is not in dispute that the appellants want to construct full commercial building on the plot and for the first time, application for building permission
was made by the appellants for constructing full commercial plot on 06.12.2010, whereas, Indore Development Plan, 2021 had come into force w.e.f.
01.01.2008.
As per Master Plan, 2021, if a plot owner wants to construct building on 1.5% FAR, then they are liable to pay POF charges in terms of the clauses
of the Master Plan. Clauses 6.8.4 and 6.8.5 of Indore Development Plan, 2021 provides for 1.5% FAR and ground coverage upto 50%. In case, if the
FAR exceeds, POF becomes payable at the prescribed rate. The said clauses read as under:-
**6-8-4okf.kfT;d Hkwfe mi;ksx ij izhfe;e
okf.kfT;d Hkwfe mi;ksx esa Q'khZ {ks= vuqikr ij izhfe;e ¼ihvks-,Q-½ fuEukuqlkj ns; gksxk%&
1- Q'khZ {ks= vuqikr 1%0-5 ij dksbZ izhfe;e ns; ugh gksxkA
2- 1%0-5 Q'khZ {ks= vuqikr ls vf/kd o`f) dh n'kk esa ¼ihvks-,Q-½ Premium on F.A.R. ns; gksxk A ;g jkf'k ftyk/;{k }kjk izfro""kZ
tkjh gksus okyh ekxZnf'kZdk esa okf.kfT;d mi;ksx gsrq fu/kkZfjr nj dk 5 izfr'kr gksxhA izhfe;e dh x.kuk fuEukuqlkj dh tkosxh%&
dqy ns; jkf'k = Hkw[k.M dk {ks=Qy x ¼lkj.kh dzekad 6-05 ,oa dafMdk 6-8-5 esa mYys[kkuqlkj dy Lohdk;Z ,Q-,-vkj-&0-5½ x ¼Hkfwe dk
eYw;] dysDVj nj½ x 0-05
3- mijksDr izhfe;e dsoy ,d ckj gh ns; gksxk A
4- ;g izhfe;e uxj fuxe@fodkl izkf/kdj.k esa tek djk;k tk;sxk tks bl izhfe;e dk mi;ksXk lacaf/kr {ks= dh okg;~ v/kksljapuk ,oa ikfdZax fodkl gsrq
djsaxsaA ;g njsa jkT; 'kklu }kjk le;≤ ij iqujhf{kr dh tk ldsaxh A
5- Hkw[k.M ij Hkou vuqefr izkIr dj gh fuekZ.k dk;Z fd;k tk ldsxk A
6- Hkw[k.M ij Ik;kZIr ifjogu] ikfdZax] [kqys {ks= ,oa fu;kstu ekin.Mksa dk ikyu djuk gksxkA
6-8-5 okf.kfT;d ekxksZa gsrq fu;eu%&
● lkj.kh 3-6 esa mYysf[kr okf.kfT;d ekxksZ ds lHkh ryksa ij okf.kfT;d xfrfof/k;ka l{ke izkf/kdkjh }kjk Lohd`r dh tk ldsxh A mDr ekxksZ ij vf/kdre
Q'khZ {ks= vuqikr 1-50 ,oa vf/kdre Lohdk;Z Hkw&ry {ks= ¼xzkm.M dojst½ 50 izfr'kr gksxkA
● okf.kfT;d ekxksZ ij fLFkr Hkw[k.Mksa ds lkeus [kqyk lhekar {ks= ¼QzaV ,e- vks- ,l-½ U;wure 7-50 ehVj gksxk A
● uxj dh fof'k""V ikfdZax vko';drkvksa dks n`f""Vxr j[krs gq;s okf.kfT;d ekxksZ ij ikfdZax ds ekud 75 oxZehVj fufeZr {ks=Qy ij ,d dkj ikfdZax dh
O;oLFkk djuk vfuok;Z gksxk A okf.kfT;d ekxksZ ij izhfe;e dafMdk 6-8-4 esa of.kZr nj ,o a izfdz;k vuqlkj n;s gksxkA
● okf.kfT;d ekxZ fpfUgr fd;s tkus ds QyLo:i ;krk;kr vkSj ikfdZax ds vfrfjDr Hkkj dks /;ku esa j[krs gq, ,sls ekxksZ ij lkefwgd ikfdZxa {ks= fu/kkZfjr
fd;s tk;saxsA ;fn dksbZ ikfdZax LFky miyC/k ugha gS rks ;FkklaHko mDr ekxZ ij Hkwfe@IykV VªsMlZ ,lksfl;s'ku }kjk miyC/k djk;k tk;sxk vFkok
ikfdZax lqfo/kkvksa ¼cgqryh; ikfdZax dks izkFkfedrk½ ds fuekZ.k ds fy;s vf/kx`fgr fd;k tk ldsxk A bl izdkj dh ikfdZax lqfo/kkvksa dk fodkl ;k rks
VªsMlZ ,lksfl,'kUl }kjk vFkok Lfkkuh; fudk;ksa }kjk fd;s tk,xk vkSj dk;kZUo;u ds fy, lkoZtfud futh lk>snkjh ¼ih-ih-ih-½ i)fr viukbZ tk ldrh gS A
bl izdkj lqfo/kk fufeZr gksus ds i'pkr gh ekxZ ij okf.kfT;d mi;ksx Lohdk;Z gksxkA**
Learned Writ Court considering the fact that permission of plot to the appellants was sanctioned in the year 1997 for residential purpose and so far
as Plot No.18 is concerned, the same was leased out for commercial purpose, therefore, on the basis of the purpose in the lease deed, building
permission was granted. In respect of Plot No.19/1, permission was granted prior to coming into force of Indore Development Plan, 2021. In respect
of Plot No.35, permission was granted for residential-cum-commercial purpose and, therefore, learned Writ Court has held that there is no case for
discrimination with other plot holders and was of the opinion that the respondents have not committed any legal error in passing the impugned order
and dismissed the writ petition.
Learned counsel for the appellants drew our attention to the letter dated 03.04.2008, which was issued by the State Government, which is at page-
242 and Clause 6.01, which is at page-244 and submit that the State Government after coming into force of Indore Development Plan, 2021 has issued
the aforesaid letter and therefore, the authorities have committed an error in rejecting the prayer.
The appellants are claiming that they are entitled for 2.5% FAR and 80% ground coverage as also 100% commercial use without payment of
premium on FAR.
Admittedly, no permission for commercial purpose has been granted to the appellants prior to 01.01.2008 and, therefore, they will not get any help
with the aforesaid letter. The plea of the appellants that the Indore Municipal Corporation sought legal opinion and the legal expert gave opinion in
favour of the appellants, therefore, the same is binding upon the respondents.
It is well settled that legal opinion given by the legal expert does not create any legally enforceable right in favour of the appellants. It is for the
department to take appropriate decision, in accordance with law, therefore, the said opinion will also not help the appellants in any way. Learned Writ
Court has elaborately examined the grievance of the appellants while considering the order dated 17.01.2014 and passed a detailed order by which
prayer for grant of permission for commercial use without payment of any POF charges has been considered. Paras-5, 6, 10, 11, 15 and 16 of the
order dated 14.10.2016 are relevant, which reads as under :-
5/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the lease deed dated 6/11/1978 Annex.P-3 was
executed by Indore Development Authority in respect of plot No. 22 belonging to the petitioner and falling in scheme No. 31. It has been pointed out
by counsel for respondents that scheme No. 31 is the scheme mainly for residential-cum-commercial purpose and some of the plots are reserved for
commercial purpose. The plot No. 22 was not leased out for commercial purpose.
6/ Petitioners want to construct a full commercial building on the plot and as per averments made in the writ petition for the first time the application
for building permission was made by petitioners on 6/12/2010. Undisputedly Indore Development Plan, 2021 had come into force w.e.f. 1/1/2008. The
petitioners are claiming that they are entitled for 2.5% FAR and 80% ground coverage as also 100% commercial use without payment of premium on
FAR.
10 So far as the plot No. 18 is concerned, it has been pointed out by learned counsel for respondents that by the lease deed dated 2/5/06 the plot No.
18 was leased out for commercial purpose therefore, on the basis of the purpose in the lease deed building permission was granted. In respect of plot
no. 19/1 it has been found that permission was granted prior to 1/1/2008 i.e. prior to coming into force of Indore Development Plan, 2021. In respect
of Plot No.35 learned counsel for respondents has pointed out that permission granted to owner of plot No. 35 is for residential cum commercial
purpose. In respect of plot No. 34 no parity was claimed by petitioners earlier round of litigation. Before this court also it has not been pointed out as
to how the petitioner's case is similar to the owner of the plot No. 34.
11/ In these circumstances I am of the opinion that the plea of discrimination raised by petitioners is also not established. Even otherwise, petitioner
are not entitled to a mandamus contrary to the applicable Rules and Regulations and negative equality cannot be claimed.
15/ The petitioners have also raised the plea that in the note sheet the plan was sanctioned earlier. But the note sheet dated 30/6/14 filed as Annex.P -
48 alongwith the rejoinder reveals that earlier note sheet was cancelled and petitioners were required to make payment and get sanction in accordance
with requirement of new Master Plan.
16/ So far as the aforesaid issues are concerned, the petitioners are not entitled to any relief.
On due consideration of the aforesaid, no case to interfere with the impugned order, as prayed is made out. The intra-court appeal filed by the
appellants have no merit and is accordingly, dismissed.