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Judgment
Sunil B. Shukre, J
Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
By this petition, the petitioner, a developer of the property of respondent no.3, speaking for itself and also for respondent no. 3, the owner, is seeking a declaration that it is entitled to 50% concession on premium payable for development of its project in terms of Regulation 35 (1)(a)(iii) in view of a scheme of respondent no. 1 floated under the Government Resolution dated 14.01.2021, giving certain concessions including 50% concession or rebate on the premium payable on the development of property during Covid-19 period (hereinafter called for short ‘rebate scheme’). The petitioner is also seeking quashing of communication dated 08.02.2023 of respondent no. 1 whereby the representation made under the rebate scheme for grant of 50% concession on the premium to be paid by the petitioner for the development of its project on the land bearing CS. No. 1913 of Byculla Division, E Ward situated at Maulana Azad Road, Mahalaxmi, Mumbai (‘subject property’ for short), which is owned by respondent no. 3 and which has given all its development rights to the petitioner under agreement dated 05.07.2022, was rejected by respondent no. 1. The petitioner is also seeking a direction to respondent no. 1 to grant all permissions and necessary approvals to the petitioner upon payment of 50% premium as per the rebate scheme dated 14.01.2021.
Earlier respondent no.3 had filed an Online application seeking sanction of Municipal Corporation of Greater Mumbai (MCGM) to layout development on the subject property in terms of Regulation 35(1)(a) of Development Control Regulation for Greater Mumbai, 2034 (‘DCPR 2034’ for short). But, the application was, according to the petitioner, erroneously treated as having been made under Regulation 35(1)(b) of DCPR, 2034, and the Regulation 35(1)
(b) being kept in abeyance by respondent no.1, was not processed any further. The architect of respondent no.3, therefore, sent a clarification on 16.10.2021 to MCGM that Regulation 35(1)(b) was not kept in abeyance entirely and what was kept in abeyance was only a sharing table below Regulation 35(1)(b) and therefore, he made a request to process the application as per Regulation 35(1) read with Regulation 35(6) of DCPR, 2034. However, as there was no response, the respondent no. 3 filed a Writ Petition No. 2859 of 2021 seeking appropriate direction to MCGM. This Court, having considered that the core issue involved in the petition related to respondent no. 1 i.e. Ministry of Urban Development, Urban Development Department, Mantralaya, Mumbai, directed respondent no. 1 to decide the representation within one week of the order and, accordingly, keeping all contentions open regarding entitlement of the petitioner to 50% concession granted by the State Government on the premium payable by the developer, disposed of the petition by the order dated 15.12.2021.
Respondent no. 3, about two days thereafter i.e. 17.12.2021 sent a further representation to respondent no.1 and also MCGM seeking a direction for processing the development proposal of respondent no. 3 under Regulation 35(1)(a) read with Regulation 35(6) of DCPR, 2034. Meanwhile, the Deputy Law Officer of Corporation gave his opinion that as per the existing policy, respondent no. 3 was entitled to 50% concession on premium payable on the development project of respondent no. 3, and, therefore, it could be considered for it’s sanction by the competent authority. The MCGM, therefore, sent a letter on 3.10.2022 to respondent no.1, wherein MCGM mentioned the opinion of its Law Officer and sought further directions of UDD of the Government of Maharashtra i.e. respondent no. 1. Respondent no. 1, by its letter dated 8.02.2023 rejected the representation of respondent no.3 (‘impugned rejection order’ for short) stating that as no premium was paid between the period of 14.01.2021 and 31.12.2021, the representation of respondent no. 3 seeking 50% concession on payment of premium could not be allowed by it.
Being aggrieved by the same, the petitioner, having acquired all rights to develop the subject property, is now before this Court.
Mr. Sakhardande, learned Senior Advocate for the petitioner along with Shri Atul Damle, learned Senior Advocate for respondent no. 3 submits that the impugned rejection letter is illegal as it does not take into consideration the fact that the respondent no. 3 could not pay the concessional premium because the application filed on 21.05.2021 itself was not processed by the Corporation on the erroneous ground that the application was filed under Regulation 35(1)(b) of DCPR, 2034. He further submits that Regulation 35(1)(b) is applicable to open land and it was kept in abeyance at the time when the application was made, but the fact was that Regulation 35 (1) (b) was not applicable to the application made for grant of development permission as in the proposed layout there was no open land available and that was the reason why to the proposal of development Regulation 35(1) (a) was applicable, which was not kept in abeyance. He further submits that the fact that no open land was available is evident from the internal facts sheet of MCGM showing that in the proposed layout development no area of open land was available, and this fact is not disputed by respondent no. 1 which is seen from the impugned rejection dated 08.02.2023, rejecting the development proposal not on the ground that it was in respect of open land under Regulation 35(1)(b) but on the ground that premium was not paid within the stipulated period. He submits that as the application itself was not processed by the MCGM, respondent no. 3 could not deposit the premium, and that was something not within the control of the petitioner or the respondent no. 3.
Learned AGP relies upon the reply filed by the State in the matter and submits that the essential requirement of rebate scheme as per the Government Regulation dated 14.01.2021 was of the deposit of premium amount during the period from 14.01.2021 to 31.12.2021 and as it was not so deposited, owing to the application being kept pending by the Corporation, the petitioner would not be entitled to 50% concession on premium as per the rebate scheme. Thus, he supports the impugned rejection letter.
Upon careful consideration of rebate scheme as declared under Government Resolution dated 14.01.2021 by the State Government, the remark passed by the MCGM on the layout development application dated 21.05.2021, clarification and representations made by the respondent no. 3, the opinion of Law Officer of the Corporation and the internal facts sheet of the Corporation showing that in the development proposal submitted by respondent no. 3 there was no open land available and the provisions of Regulation 35 of DCPR, 2034, we find that there is a great substance in the argument of learned Senior Advocates for the petitioner and respondent no. 3 and no merit in the submissions of learned AGP for the State.
Rebate scheme floated under Government Resolution dated 14.01.2021 had an object of removing the laxity that had set in, in economic and industrial growth of the State as an aftermath of Covid- 19 pandemic. The Government, with a view to removing that laxity, took various measures, one of which was to revive real estate sector. The Government, therefore, took a decision to give certain concessions and rebates on additional FSI and fungible FSI and also on premium payable for development of the projects during the stipulated period of time. For such concessions, the on going projects as well as new projects were eligible but the applications in that behalf were to be made between 14.01.2021 and 31.12.2021. As per the rebate scheme, the development project of the petitioner and respondent no. 3 was entitled for 50% concession on premium payable for the development project, provided the application seeking such concession was made by it in time between 14.01.2021 to 31.12.2021.
In the instant case, the application seeking concessional premium under rebate scheme was made on 21.05.2021 and that was well within time. The application so made was under Regulation 35(1) (a), and not under Regulation 35 (1) (b), there being no open land available as seen from the internal facts sheet of MCGM dated 21.06.2021 (Exhibit-R). The fact of application having been made under Regulation 35(1) (a) is also not in dispute as it is not the case of the respondent no.1 that the application was made under a provision that was kept in abeyance i.e. Regulation 35(1) (b). This regulation, at the time when the application was made being kept in abeyance by the State Government, any application seeking development permission under Regulation 35(1) (b) could not have been processed by the planning authority i.e. MCGM but it was not so in case of an application made under Regulation 35(1) (a) of DCPR, 2034. This provision of DCPR, 2034 was not kept in abeyance and therefore, the application made thereunder was required to be appropriately processed by the MCGM, but that did not happen here. Rather, the application made under Regulation 35(1) (a) by respondent no.3 was treated as one made under Regulation 35(1)(b), a provision that was kept in abeyance which resulted in not processing of the application, because of which the respondent no. 3 could not pay the premium even till the last date of the rebate scheme, which was 31.12.2021 and further extended till 31.01.2022. This was something not within the control of the respondent no. 3 and for that matter, the petitioner as well. If a party like respondent no. 3 or it’s developer could not pay the premium for a reason not attributable to it, but to the planning authority, such a party cannot be blamed for not paying the premium in time and thrown out of the rebate scheme on that ground. Such a party being otherwise eligible, which is respondent no. 3 and the petitioner here, cannot be denied benefit of rebate scheme for a reason for which it is not responsible. The respondent no. 3 here was disabled to pay the premium because of non-processing by the MCGM of it’s application seeking development permission.
The facts discussed above would show that the respondent no.3 could not have been denied the benefit of the rebate scheme dated 14.01.2021, as the application was filed by it was within the validity period of rebate scheme, and it was not processed by the MCGM on an erroneous assumption that it was made under a provision that was kept in abeyance i.e. Regulation 35 (1) (b), and that was what prevented the respondent no. 3 from depositing the premium. The application was actually made under Regulation 35 (1) (a), and if this fact had been appreciated properly, the application would have been processed and the respondent no. 3 would have been able to pay the premium in time, but that did not happen.
Respondent no. 1 has rejected the request for grant of benefit of the rebate scheme only on the ground that respondent no. 3 did not pay the premium during the relevant period starting from 14.01.2021 and ending on 31.12.2021. Respondent no. 1, in doing so, did not take into consideration the inability of the respondent no. 3, and in turn of the petitioner, to pay the premium in time, as rightly submitted by Mr. Sakhardande, learned Senior Advocate for the petitioner and Mr. Damle, learned Senior Advocate for the respondent no. 3. Their inability to pay the premium was because of the mistake committed by the MCGM to process the application, a factor not within the hands of the respondent no. 3 and the petitioner, for which they cannot be blamed nor could be deprived of the benefit of the rebate scheme. Such a rejection, in the facts and circumstances of this case as discussed hereinabove, cannot be upheld by us and it deserves to be quashed and set aside by allowing this petition. The petition is, therefore, allowed and the following directions are issued.
i). The impugned rejection order is hereby quashed and set aside.
ii). Respondent no. 1 is directed to allow 50% concession on payment of premium for the development project of petitioner and respondent no.3 in terms of rebate scheme under Government Resolution dated 14.01.2021.
iii). Respondent no. 1 is further directed to issue necessary directions for processing of layout plan of the petitioner in accordance with law.
Rule is made absolute in the above terms.
Writ Petition is disposed of accordingly.
At this stage, learned AGP makes a request for grant of stay to the effect and operation of the judgment, which is opposed by the learned Senior Counsel for the Petitioner. As no particular time has been given to Respondent no. 1 for complying with the directions, we find that it is not necessary to grant the request, and therefore, it is rejected.