1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1643 OF 2007 Akruti City Ltd. And anr. ...Petitioners v/s The Municipal Corporation of Greater Mumbai and others ...Respondents Mr M.M. Vashi with Mr Prakash Shinde i/b M/s M. Dhruva and Co. for Petitioners. Mr S.S. Pakale with Ms Modale for Respondent Nos.1, 5 and 6. Mr P. Jadhav, AGP for Respondent No.2. Mr Jagdish Reddy for Respondent No.3. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 5TH OCTOBER 2009. 2 P.C. :- 1] The petitioners, by this petition, claim a direction to the Mumbai Municipal Corporation not to withhold grant of no objection certificate for water connection to the petitioner No.1 without insisting for payment of arrears of property tax in relation to the land on which the slum rehabilitation project has been undertaken by the petitioner No.1. There is no dispute that the petitioner No.1 submitted a project for development to the Slum Rehabilitation Authority. The property was already declared as a slum. The slum rehabilitation project has been sanctioned by the Slum Rehabilitation Authority and necessary building permissions have also been granted. At that stage, the petitioner No.1 made an application to the Mumbai Municipal Corporation for grant of temporary water connection to enable them to carry on the construction work. The Corporation at that time, admittedly put a condition that the petitioner No.1 should clear all the municipal dues 3 in relation to the land on which the slum rehabilitation project has been undertaken as also in relation to the structures standing on the land (slums) before they were demolished for implementation of the slum rehabilitation project. The short submission of the petitioner No.1 is that Appendix IV to Regulation 33(10) of the Development Control Regulations contemplates no objection certificate or permissions which are required from the Authorities for sanction and implementation of the slum rehabilitation project should not be withheld for non-payment of dues either of the Government or of the Corporation and other authorities. The petitioner No.1 relies on clauses 1.12, 1.13 and 2.8 of Appendix IV referred to above. The learned counsel appearing for petitioners also submits that because for starting construction work, water connection was urgently required, the petitioner No.1 made certain payments to the Corporation, the Corporation should be directed to refund those payments. On behalf of the Corporation, on the other hand, it is submitted 4 that so far as clause 1.12 is concerned, it relates only to amounts recoverable by the Corporation as arrears of lease money if the land is owned by the Corporation. It is further submitted that so far as clause 1.13 is concerned, it operates against Slum Rehabilitation Authority regarding grant of approval or building permission. The Corporation also relies on the provisions of regulations 2.2 and 2.4 of Appendix IV. The Corporation also relies on condition 23 fond in the building permission which has been granted in favour of the petitioner No.1 by the Slum Rehabilitation Authority. On behalf of the Corporation, it was also submitted that the bye-laws framed by the Corporation for grant of water connection also contemplate payment of dues by the person seeking water connection before he is granted the water connection. After having heard learned counsel for both the sides in detail and after having perused the record, we find that the provisions have been made in Appendix IV with the intention to expedite grant of approval to the project for rehabilitation 5 of the slum for grant of building permission as also for completion of the project. Clauses 1.12, 1.13 and 2.8 which have been relied on by the learned counsel for petitioners read as under :- 1.12 Automatic cancellation of Vacant Land Tenure :- If any land or part of any land on which slum is located is under vacant land tenure the said tenure / lease created by Brihan Mumbai Municipal Corporation or Municipal Commissioner shall stand automatically terminated as soon as a slum rehabilitation scheme, which is a public purpose, on such land is prepared and submitted for approval to the Slum Rehabilitation Authority. Any arrears of dues to be collected by Brihan Mumbai Municipal Corporation shall not be linked to the issue of any certificate or NOC relating to the Slum Rehabilitation Project. 1.13 Recovery of pending dues such as 6 assessment, compensation, occupation charges, non-agricultural tax / dues etc . Pending with public authorities such as State Government, MHADA and / or Municipal Corporation shall be dealt with separately and not be linked to grant of approval or building permission to the slum rehabilitation projects. 2.8 As soon as the approval is given to the Project, the no objection certificate, for the building permission, of the landowning authority shall be given in respect of that slum located on lands belonging to any department, undertaking agency of the State Government, including MHADA or any local self-Government such as the Municipal Corporation within 30 days after the intimation of such approval to the Project is communicated. In the event of its not being given within the period, it shall be deemed to have been given. 7 The combined reading of these clauses shows that these clauses do not either absolve the person who is submitting the rehabilitation scheme and who is implementing that scheme from making any payments which he may be liable to make under the law. The only condition put by these clauses is the fact that these payments have not been made is not to be used for withholding any permissions or approvals which are necessary either for approval of the slum rehabilitation scheme or for sanctioning the building plans or for commencing and completing the construction work. In our opinion, the provisions made in Appendix IV will operate in relation to grant of water connection for carrying out the construction work of a slum rehabilitation project to the exclusion of the general provisions made in the Corporation Act and the Bye-laws framed thereunder. The effect of the provisions in Appendix IV is not to wipe out the liability for payment of dues including property tax nor is its intention to postpone the recovery of those dues, the only requirement is that grant of NOC for the 8 purpose of approval or for implementation of the project should not be linked to the recovery of those dues. In other words, the Corporation is free to adopt all other modes that may be available to it under the law for recovery of its dues except that it cannot insist on payment of the dues before it grants any permission or NOC required from it either for sanction or for completion of the slum rehabilitation project. Clause 23 of the letter of intent dated 24th August 2001 which is relied on on behalf of the Corporation reads as under :- 23. That the possession of the tenements and shops shall not be handed over to the eligible hutment dwellers before the society is registered and transit accommodation given is surrendered and all the dues to the M.C.G.M. / Government has been cleared. In our opinion, this clause is in consonance with the provisions of Appendix IV. It 9 lays down that possession of the tenement is not to be given to the eligible hutment dweller unless and until the dues of the Municipal Corporation are cleared. It appears that this provision has been specifically made because provisions are made in Appendix IV not to link grant of permissions necessary for construction of the building with recovery of the dues and therefore, in the letter of intent the provision is made that before handing over tenement it is to be seen that municipal dues are paid. In our opinion, therefore, the petitioners are entitled to the relief that they are seeking, restraining the Corporation from linking the payment of its dues to the grant of water connection for the purpose of construction of the building. So far as the prayer made by the petitioners for refund of the amount that has been paid by it is concerned, in our opinion, that relief cannot be granted because we are not in this petition deciding as to who is liable to pay property tax and other taxes in relation to the construction which was in existence before 10 demolition. The liability of the person from whom that property tax is to be recovered, in our opinion, cannot be subject matter of this petition because for deciding that question, there are elaborate provisions made in the Corporation Act for levy and recovery of property tax and other taxes We make it clear that we are not deciding that issue in this petition, therefore the petitioners are free to adopt the remedy available to them in law for the refund of the amount which according to the petitioners, they have deposited. Rule is made absolute accordingly with no order as to costs. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )