2012(5) ALL MR 90
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.A. BOBDE AND MRIDULA BHATKAR, JJ.
Charkop Anand Co-Operative Housing Society Ltd. & Anr. Vs. The Maharashtra Housing & Area
Writ Petition No.346 of 2000
23rd January, 2012
Petitioner Counsel: Mr. R.R. AROLKAR
Respondent Counsel: Mr. MILIND MORE, Mrs. VIDYA GHARPURE
Maharashtra Housing and Area Development (Disposal of Land) Rules (1985) - Lease - Demand of additional lease premium - Validity - Plot allotted to society petitioner on lease for period of 90 years for construction of flats for Govt. servants - Society paid lease rent pursuant to agreement - Society constructed 17 flats and 3 shops after approval of MHADA - However a conditional approval for lease of non residential/ commercial use granted - MHADA by letter demanded additional lease premium for such commercial use to be paid within 1 month of letter failing which interest rate @ 16% p.a. held to be charged for delayed payment - MHADA being lessor has power to charge additional premium for conversion of premises from residential to commercial - Despite knowledge society converted premises to commercial without fulfilling said condition - Demand of additional lease premium held valid - However interest rate @ 16% p.a. reduced to 12% p.a. (Para 5)
2. The petitioner no.1 is a Co-operative Housing Society to whom a plot bearing no.158, admeasuring 943.31 sq. meters at Charkop, Kandivli in Municipal Ward No.R, was allotted in Nivara Housing Scheme of respondent no.1. On executiion of agreement dated 20.10.1987 the plot was leased for a period of 99 years. The petitioner no.1-society submitted the plans of ground + 4 storied building, consisting of 16 flats and three shops. The said plans were approved by the respondents. Interalia, three shops were constructed occupying area of 181.35 sq. meters. However, by letter dated 7.8.1994 (Exhibit-F) respondent no.1-MHADA called upon the petitioners to pay the additional lease premium of Rs.5,47,206/-. The petitioner no.1-society made several representations that the demand being illegal and exorbitant, be withdrawn. However, there was no favourable response from respondent no.1. Hence, this petition.
3. Learned Counsel for the petitioner no.1-society submitted that it is a society of retired Government servants who, to fulfill their dream to have own house in the scheme have invested their life-savings. Mr.Arolkar argued that the construction of the flats was made as per the sanctioned plan therefore, the demand of additional lease premium is illegal. The petitioner-society did not use any excess FSI while constructing the residential and shop premises and has informed about the construction of 3 shops and its commercial use to respondent no.1 at the time of its construction. The petitioners have already paid all taxes to the BMC. It is prayed that appropriate writ be issued and the demand made by respondent no.1 in letter dated 6.11.1999 be set aside. Learned Counsel Mr.Arolkar argued that as per the booklet (brochure) which is (Exhibit-D) annexed to the petition, 1.2 FSI was available for the construction and the arrangement can be made on the ground floor for shops. He submitted that nowhere in the booklet, such condition of payment of additional premium or enhanced premium for the construction of shops is mentioned. Therefore, the demand made by MHADA is illegal.
4. Respondent no.1-MHADA is the main contestant and opposed the petition by filing affidavit-in-reply. It was contended that MHADA has right to charge additional lease premium for the use of the commercial premises. Learned AGP Mr.More pointed out a letter Exhibit-H dated 7.5.1994 written by MHADA to the Secretary of the petitioner no.1-society, in which it was mentioned that the society is liable to pay additional lease premium of Rs.5,47,206/- for the commercial use of the premises of 181.35 sq. meters of the impugned plot. The permission to use the premises for commercial purpose was subject to the payment of additional lease premium and demand of 16% interest is also made if the said additional lease premium is not paid within one month. It was submitted that demand of the additional lease premium was made as per the Maharashtra Housing Area Development Authority (Disposal of lands) Rules & Regulations.
5. The plot bearing no.158-RDP/7 admeasuring about 943.31 sq. mtrs at survey no.149 of village Kandivali was alloted to the petitioner-society on the lease for the period of 90 years. The petitioner-society has paid the lease rent of Rs.6,60,317/- pursuant to the agreement executed on 20th October, 1987. The petitioner-society has constructed 17 flats and 3 shops in the building on the said plot only after approval from MHADA. However, respondent no.1-MHADA by its letter dated 7.5.1994 has given a conditional approval for use of non-residential/ commercial use of those 3 shops subject to payment of additional lease premium of Rs.5,47,206/-. In the said letter it was mentioned that the additional lease premium was to be paid within one month from the date of the letter, failing which interest at the rate of 16% p.a would be charged for delayed payment. Thereafter the petitioner-society made representations to respondent no.1 and the concerned Minister of Housing Development in respect of not charging additional lease premium for commercial use of 3 shops. However, MHADA by further correspondence, time and again, reiterated the charge of additional premium for non residential user and demanded the said dues. Learned AGP Mr.More drew our attention to the annexure to the Resolution No.3094 which states about the land disposal pricing policy of MHADA. He pointed out that the MHADA can charge additional premium at 100% of market price of that locality for commercial user or twice the residential market value whichever is more. Thus, MHADA being a lessor, has power to charge the additional lease premium for conversion of the premises from residential to commercial. Moreover, at the time of giving approval by letter dated 7.5.1994, for the construction and for conversion into use of commercial premises, has made first demand of Rs.5,47,206/-. Despite of this knowledge the petitioners converted the premises for commercial use without fulfilling the said condition.
6. We therefore, of the view that there is no merit in the petition. The petitioner no.1 is a society of retired Government servants therefore, the rate of interest at the rate of 16% p.a is found too high hence, it is reduced upto 12% p.a. Petition is dismissed. Rule stands discharged.