CHARKOP ANAND CO OPERATIVE HOUSING SOCIETY LTD Vs. MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This petition is directed against the demand made by respondent No. 1 -MHADA for the additional lease premium of Rs. 5,47,206/- with interest at the rate of 16% p.a. 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 execution 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 The petitioner No. 1 -society made several representations that the demand being illegal and exorbitant, be withdrawn.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.

(2.) 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.

(3.) 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.