1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3239 OF 2009. Raosaheb S/o Manikrao Deshpande, age 62 years,Occu. Pensioner, R/o Plot No. 11, Block No. 140, Beed By pass road, Satara Parisar, Aurangabad Tq. & Dist. Aurangabad .. PETITIONER. VERSUS 1) The State of Maharashtra. 2) Symboisis Cooperative Housing Society Through its Chairman, Plot No. 6, Sy.No. 6 Sectot N-8, CIDCO, Aurangabad. 3) City and Industrial Development Corporation of Maharashtra Limited Through its Chief Administrator (N.T.) CIDCO Ltd., Udyog Bhavan, Chikalthana, New Aurangabad... RESPONDENTS. ... Shri C.R. Deshpande, Advocate for Petitioner. Shri V.H. Dighe, Assistant Government Pleader for respondent No. 1. Shri A.M. Gaikwad, Advocate for respondent No. 2. Shri A.S. Bajaj, Advocate for respondent No. 3. ... CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 20th JANUARY, 2010. 2 PER COURT: 1. This Writ Petition takes exception to the communication dated 8-12-2008 issued by the respondent No.3 to the petitioner calling upon him to deposit the amount of Rs.2,85,250/- by way of additional lease premium in respect of plot allotted by the respondent No.2 society, which is marked as D-1 in the map drawn by the said society. 2. The learned counsel appearing for the petitioner submits that, the possession of the plot No.6 admeasuring 2000 Square meters has been handed over to respondent No.2 society. The document “Possession slip” has been signed by the officers of the CIDCO, Aurangabad as well as on behalf of respondent No.2 Society. According to the counsel for the petitioner, the commencement certificate has been issued on 08-02-1994 permitting the respondent No.2 Society under Section 45 of Maharashtra Regional And Town Planning Act, 1966 for construction of residential buildings, as per approved plan and, 3 on the terms and conditions stated therein. It is stated that the commencement certificate dated 08-02-1994 was renewed for the period of 08-02-1995 to 07-02-1996 by the communication dated 21-02-1995. He would further submit that upon perusal of the communication dated 21-02-1995, it is evident that, the commencement certificate dated 08-02-1994 was for the built up area of 840 square meters. It is further submitted that, as per the Rules and Regulations of CIDCO the allottee of plot of CIDCO has to raise and complete the construction over a portion OF 25% of the plot area. According to the learned counsel for the petitioner, since the plot is allotted to the respondent No.2 Society, it was incumbent upon the respondent No.2 society to raise and complete the construction over the area of 500 square meters. The respondent No.2 society has raised and completed the construction over the portion of 1017.54 square meters, as 8 members of the society out of 10 members, have already raised and completed the construction, and therefore, the Rule regarding construction of minimum portion would apply to 4 the society in respect of entire plot. Therefore, learned counsel would submit that, the allotment of plot No.6 admeasuring 2000 square meters is in favour of the cooperative Society not in favour of individual member of the Society and since more than 25% construction has been raised by the other members of the Society, the condition regarding construction of minimum 25% area has been fulfilled. It is submitted that in view of this, the communication dated 08-12-2002 issued by the respondent No.3 directing the petitioner to pay the additional lease premium of Rs.2,85,250/- is unsustainable in law. 3. The sum and substance of arguments of the learned counsel for the petitioner is that, in view of construction of more than 25% area raised by other members of the society, the society has fulfilled the said condition and allotment letter does not impose any such condition that each member should raise minimum 25% construction over individual plot, within the stipulated period. The general Rules and Regulations of the Society require 25% construction to be completed within 5 stipulated period, if in case society has completed 25% of construction, the said condition imposed by CIDCO stands complied with. Therefore, the learned counsel for the petitioner would submit that, the communication dated 08-12-2008 asking the petitioner to deposit Rs.2,85,250/- is not sustainable in law. Therefore, learned counsel for the petitioner would pray that this petition may be allowed. 4. The learned counsel appearing for the respondent No.3, invited our attention to the affidavit in reply filed on behalf of respondent No.3 and submitted that levy of additional lease premium for non development of the plot / land in question, is in public interest as the CIDCO is appointed as a Special Planning Authority. The object behind allotment of the plot is not that one to obtain the plot on lease basis and keep it undeveloped for years together and make money out of the same and/or to keep it undeveloped for years together and then to take benefit of the same, depriving the needy persons thereof. The basic Scheme of respondent No.3 is to provide 6 plots to the persons, who are immediately in need to develop the same. This very requirement is also necessary for effective working of the services and infrastructural facilities provided, more particularly, the underground drainage system, etc. The learned counsel for respondent No.3 further submitted that, charging of the additional lease premium is concession given to the allottee, otherwise under the terms of agreement the consequence of non-development as agreed is cancellation of the allotment and termination of the agreement. The learned counsel for respondent No.3 further submitted that, under the agreement the plot as a whole is to be developed. It is further submitted that, the respondent No.3 has adopted policy considering development of the individual plot of the members for charging of additional lease premium. The learned counsel would submit that, the petition is devoid of any merits and same deserves to be dismissed. 5. The learned counsel appearing for the respondent No.2 submitted that when the other 7 similarly situated members of the respondent No. 2 society were called upon by the respondent No. 3 to pay additional lease premium, as in the instant case, they have paid the said additional lease premium and, therefore, this Court may pass appropriate order. 6. We have heard learned counsel appearing for the respective parties at length and carefully perused the contents of agreement to lease at Exh.B from pages 23 to 43 of the compilation of the Writ Petition. For proper adjudication of this petition, the relevant clauses of the said agreement are at page Nos.29 to 32. The said lease agreement contemplates period of six months for submission of plans for approval to the Sr. Planner (NT) of the Corporation for construction of the buildings agreed by the Licensee to be erected on the said land and the Licensee has to do this at his own cost, and also has to amend the same, as and when called for. The agreement to lease further provides that, the allotted land should be properly fenced 8 by the Licensee at his / their / its expenses within a period of two months from the date of agreement. The agreement to lease further provides that no work of construction should begin until plans are approved. The important clause in the said agreement to lease is time limits for commencement and completion of construction work. The said clause reads thus:- “(d) That he/they/it shall within a period of one year from the date hereof commence, and within a period of three years from the date hereof at his /their /its own expenses and in a substantial and workman like manner and with new and sound material and in compliance with the said Development (Control Regulations and any other law for the time being in force and in strict accordance with the approved plans, elevations, sections, specifications and details to the satisfaction of the Town Planning Officer and conformably to the building lines marked on the plan and completely finish fit for occupation a building to be used a 9 Residential building with all requisite drains and other proper conveniences thereto.)” 7. The time limit which is provided for commencement and completion of construction work is one year from the date of allotment and same is required to be completed within three years as per approved plan and should be fit for occupation to be used a residential building with all requisite drains and other proper conveniences thereto. 8. It is admitted position that, the petitioner is original member of the respondent No.2 Society and has been allotted plot by the respondent No. 2. It is also admitted position that, some of the members of the society have applied in their individual capacity for construction of their plots allotted by the Society. In Para No.7 of the petition it is demonstrated that as many as five members have applied for occupancy certificate after raising construction on their respective plots. It is also admitted position that, the members of the society have applied for 10 the permission of construction in their individual capacity and obtained permission from the respondent No.3 for construction as per terms laid down in the agreement to lease. It is also not in dispute that, the 25% of the area of allotted plot is required to be constructed within stipulated time as mentioned in the agreement to lease. The agreement to lease empowers the respondent No.3 to terminate agreement in case, the Senior Planner (NT) has not approved the plans, elevations, specifications and details originally submitted within the time here-in-before stipulated, the Managing Director may, by notice in writing to the Licensee, revoke the License and re-enter upon the said land and thereupon the license shall come to an end. The said agreement to lease also empowers the Corporation that, until the buildings and works have been completed and certified as completed, the authorities of the corporation may, at reasonable time, enter upon the said land to view the said progress of the work for all other reasonable purposes. The said agreement to lease also further provides that, in 11 case licensee fails to complete the building within time as afore said in accordance with the stipulations provided in the agreement to lease, the land can be resumed, without making any compensation and allowance to the licensee for and without work any payment to the licensee for refund or repayment of any premium paid by him / them. Under the said agreement to lease, the Managing Director may in his discretion give notice to the licensee of his intention to enforce the Licensee’s Agreement, by fixing extended period for the completion of the building and the work for the said period mentioned, in case the licensee satisfies that the buildings and works could not be completed within the prescribed time for reason beyond the control of the Licensee and if the Licensee shall agree to pay additional premium as may he fixed by the Managing Director in each individual case and thereupon the obligation herein under of the licensee to complete the building to accept a lease shall be taken to refer to such extended period. 12 9 Therefore, it follows from the agreement to lease that, each individual has to apply separately for the permission to construct the building and get it approved from the concerned authority and to commence the work and complete the same so as to be fit for occupation. In case any individual plot holder of the society fails to adhere to the terms of agreement to lease, the respondent No.3 has to take necessary measures as laid down in the said agreement to lease. 10. It is admitted position that the petitioner herein has failed to comply the terms of agreement to lease and, therefore, the respondent No.3 has rightly communicated the petitioner to pay additional lease premium of Rs. 2,85,250/-. We find, considerable substance in the arguments advanced by the learned counsel for the respondent No.3 that even the authority has power to cancel the allotment and to resume the land. However, the lenient view has been taken by requesting the petitioner to pay additional premium, so that he should not lose the plot 13 allotted by the respondent No.2 Society. 11. It is undisputed position that, the plot is allotted to the respondent No.2 Society way back in the year 1991 and agreement has been executed on 24-03-1992. At least, five members of the said respondent No.2 society individually applied for construction of their respective buildings and completed the construction and further applied for occupancy certificate. As rightly contended by the counsel appearing for the respondent No.2, some of the members of the society have paid additional lease premium as demanded by the respondent No.3. 12. Taking over all view of the matter, it is not possible to accept the contention of the learned counsel for the petitioner that, the plot was allotted to the respondent No.2 society and since some of the members have raised the construction on their respective plots, thereby condition of construction over 25% of the area allotted has been complied with and petitioner is, therefore, not liable to pay additional 14 premium. On perusal of the terms of the agreement, it is abundantly clear that, each individual member of the society has to apply for permission for commencement of the construction and also for completion and occupancy certificate. The time limit which is prescribed under the agreement would bind each member of the society qua the plot allotted to him by the society out of the larger plot, and therefore, the petitioner should have commenced the work of construction on the plot allotted to him by the society within stipulated time as mentioned in the agreement to lease. 13. We do not find, any substance in the petition. The petition is devoid of any merits and it is, therefore, dismissed. [ S.S. SHINDE, J ] [ A.M. KHANWILKAR, J ] SDM* WP3239.09