( 1 ) wp272.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 272 OF 2006 Ankush s/o. Eknath Labde .. Petitioner Age. 61 years Occ. Retired, R/o. “Ashmita”, 321, N-1/c, Bhakti Nagar, CIDCO, Aurangabad. Versus 1. The State of Maharashtra, .. Respondents Through :- Secretary, Urban Development Department, Mantralaya, Mumbai. 2. The Administrator, CIDCO, New Town, Udyog Bhavan, Aurangabad. Mr. S.R. Choukidar, Advocate for the petitioner. Mr. R.P. Phatke, A.G.P. for respondent No.1. Mr. A.S. Bajaj, Advocate for respondent No.2. CORAM : SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATED : 15.03.2011 ( 2 ) wp272.06 JUDGMENT [PER : SMT. NISHITA MHATRE, J.] :- 1. The short question involved in the petition is whether the petitioner can derive any benefit from the judgment of Division Bench of this Court, rendered in Writ Petition No. 2561 of 1990 and other connected writ petitions on 12.02.2004. By this petition, the petitioner has claimed a refund of excess amount of service charges to the tune of Rs. 51,032/- from respondent No.2 i.e. CIDCO. 2. The CIDCO allotted a plot of land bearing Plot No. 321, N-1 on 15th September, 1978, jointly to Asha Arvind Joshi and Prafulla Arvind Joshi. It appears that the allottees did not develop the plot within one year as required under lease deed. An application was made by them on 20th December, 1987 after almost nine years of the allotment, for the commencement certificate and the part occupancy certificate. They paid an additional premium of 40%. 3. On 15th July, 1988, the rights acquired by allottee ( 3 ) wp272.06 were assigned to the petitioner by a Tripartite Agreement signed by the petitioner and the erstwhile allottees. The petitioner constructed a residence on this plot of land and paid service charges as agreed under the lease deed. On 21st December, 1991, a notice was issued to him directing him to pay service charges from 1978 at the rate of Rs. 4/- per sq. mtr. for the entire plot of land and not ready for the built up portion. It appears that the petitioner paid the charges under protest. However, he took no steps to challenge the issuance of the demand notice, by initiating any legal proceedings. 4. Several other allottees who were issued similar demand notices in 1991 filed writ petitions in this Court challenging those notices. Those writ petitions were heard and disposed of on 12th February, 2004, by Division Bench of this Court. The common question involved in those petitions was – Whether CIDCO had the power to levy and collect service charges from the residents of new Aurangabad at the rate of Rs. 4/- per sq. mtr. on the entire plot of land or only on the built up area. The Division Bench has observed that the ( 4 ) wp272.06 CIDCO was a special planning authority and was required to generate revenue, so that its investment expenditure did not exceed its revenue. The Court then held that it did not find that the levy of service charges at the rate of Rs. 6/- per sq. mtr. for a commercial plot was unreasonable. However, the Division Bench disapproved the charges levied at the rate of Rs.4/- per sq.mtr. for the total residential plot area in every case. The Court was of the view that CIDCO would be justified in levying service charges on the total plot area if there was no construction on the plot or in cases where a structure had been built only to ensure that the allottee did not fall foul of the agreement with the CIDCO. However, the Court observed that where a residential plot had been put to use bonafide by the plot holders and they were occupying the residential place built on it themselves for residential purposes only, there was no justification for the CIDCO to have levied charges on the total plot area. In such cases, the Court observed that the charges should be levied on the built up area alone at the rate of Rs. 4/- per sq. mtr. 5. Two years after this batch of petitions was ( 5 ) wp272.06 decided, the petitioner approached this Court by way of the present writ petition, seeking a refund of the amount paid by him, on the basis of the judgment of the Division Bench. It is true that he had corresponded with the CIDCO for refund of the amount. In fact, he had also approached the District Consumer Disputes Redressal Forum, Aurangabad. That complaint was dismissed as the forum was of the opinion that it had no jurisdiction to grant any relief to the petitioner. 6. Mr. Choukidar, who was appointed as amicus curie in this matter, has argued that the judgment of the Division Bench would be applicable to the present case and that the petitioner would stand to benefit from that judgment. He has been at pains to point out that the Division Bench has clearly disapproved of the policy of the CIDCO of charging service charges at the rate of Rs. 4/- per sq. mtr. for the entire plot, although there may be construction on that plot. Mr. Choukidar has also submitted that the petitioner was residing in the dwelling house constructed by him on the plot and therefore the CIDCO should not have levied charges on the entire plot. The demand of the CIDCO was for payment of ( 6 ) wp272.06 charges at the rate of Rs. 4/- per sq. mtr. for 286 sq. mtrs. from 1978 to 1997-98. The built up area on this plot was 131.17 sq. mtrs. The petitioner, according to learned Counsel, was liable to pay only for built up area and accordingly was entitled to a refund of Rs. 51,032/-. 7. Mr. Bajaj, the learned Counsel appearing for the CIDCO has submitted that the relief claimed by the petitioner cannot be granted in a writ petition, as disputed questions of fact arise which can be resolved only in a civil suit. He further submitted that the petitioner by this writ petition which is filed in 2006 has claimed a refund of an amount which he paid for the period from 1978 to 2004. According to learned Counsel, had a suit been filed, the petitioner could not have maintained the suit for the period prior to three years from the date of filing the suit. On the interpretation of the judgment of the Division Bench in Writ Petition No. 2561 of 1990 and other connected petitions, the learned Counsel submits that no directions were issued by the Court for refund of any amounts to any of the petitioners in those writ petitions, despite there being a prayer for the ( 7 ) wp272.06 same. He pointed out that the decision must be considered to be prospective as the Division Bench had not approved the policy of the CIDCO of charging Rs. 4/- per sq. mtr. for the entire plot, where there was a construction on that plot. 8. We have given our anxious consideration to the submissions of the learned Counsel for the parties and in our opinion the petitioner is not entitled to any relief in the present petition. We have no doubt that this petition raises disputed question of fact. However, since the petition has been admitted in 2006, we have considered the issue in the writ petition. In our opinion, the Division Bench in the aforesaid batch of petitions clearly lays down a new policy from the policy which the CIDCO had framed. In the opinion of the Division Bench, the decision of the CIDCO to charge @ Rs.4/- per sq. mtr. for the entire plot to those who were using the residential plots personally for their residences or dwelling houses was unreasonable. It was, therefore, held that they should not be charged at the same rate as those who were occupying open plots of land. This was clearly a departure from the policy laid down by the CIDCO. In our ( 8 ) wp272.06 opinion, therefore, the question of refund the amount to the petitioner does not arise. Had the petitioner been vigilant about his rights, he could have preferred a writ petition petition immediately after the demand was raised on him on 21.12.1991. It appears that the petitioner chose to wait and watch while the petitioners in the other batch of petitions agitated their grievances before this Court. There is no justification at all pleaded in the writ petition for the petitioner to have approached this Court late. 9. Besides, as rightly pointed out by the learned Counsel for CIDCO, although the petitioners in the aforesaid batch of petitions had sought a refund of the service charges paid by them, the Division Bench has not granted the prayer. 10. In these circumstances, in our opinion, the petition has to be dismissed. Hence, the writ petition is dismissed. 11. Rule discharged. No order as to costs. ( 9 ) wp272.06 12. Before parting with the petition, we must record our appreciation for the able assistance of Mr. Choukidar in this matter. [S.S. SHINDE,J.] [SMT. NISHITA MHATRE,J.] snk/2011/MAR11/wp272.06