Bombay High Court
M/S. Voltas Limited And Anr vs The Municipal Commissioner Thane ... on 6 June, 2023
Bench: G.S. Patel, Neela Gokhale
2023:BHC-AS:14811-DB 901-ASIAWP-1463-2022.DOC
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7222 OF 2007
WITH
INTERIM APPLICATION NO. 1463 OF 2022
IN
WRIT PETITION NO. 7222 OF 2007
Voltas Limited & Anr ...Petitioner/
Applicant
Versus
The Municipal Commissioner of Thane
Municipal Corporation & Ors ...Respondents
Mr Mutahhhar Khan, a/w Rutuja Patil & Yohan Shah, i/b Negandhi
Shah & Himayatullah, for the Petitioner.
Mr Mandar Limaye, for Respondents No. 1 & 2.
Mr VM Mali, AGP, for Respondent-State.
CORAM: G.S. Patel &
Neela Gokhale, JJ.
DATED: 6th June 2023 PC:-
1. The Writ Petition was admitted on 29th July 2008. The hearing has been expedited. The matter is being pending since then.Page 1 of 19
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2. Now the Petitioner has filed an Interim Application No. 1463 of 2022 which seeks the following reliefs:
"(a) this Hon'ble Court be pleased to direct Respondent by an order or direction to consider & approve the Applicants composite proposal dated 04/02/2005 submitted to Respondent No. 1 for construction on entire plot of 3000 sq. mtrs. as per UDCPR-2020 and by providing the constructed amenity of retail market to the extent of 50% of the Applicants land admeasuring 2195 sq. mtrs. and 805 sq. mtrs. of the adjoining land, reserved collectively for Municipal Retail Market in the Development Plan finalized for Thane city;
(b) OR in the alternate, this Hon'ble Court may be pleased to direct the Respondent to issue formal Commencement Certificate and other necessary permission for permitting them to develop as per UDCPR-2020 the D.P. Reservation of Municipal Retail Market to the extent of 2195 sq. mtrs.
only on Applicants own plot situated on part of layout of Applicants land bearing Survey No. 166(pt) to 173(pt), S. No. 282(pt) to 287(pt) and S. No. 304(pt) to 306(pt) at village-Majiwada, Pokhran Road No. 2, Taluka & District- Thane known as Vasant Vihar Housing Complex and to give to the Applicants the benefits the Applicants are entitled to and accruing to them under Clause 68(v) read with Clause II-(c) of Appendix-P of the Development Control Regulations framed for Thane Municipal Corporation and other applicable provision of law;
(c) That this Hon'ble Court be pleased to declare that in view of the ULC Repeal Act which was adopted by the State of Maharashtra in the year 2007, the conditions of ULC Exemption u/s. 21 stands abated/infructuous and no longer survives."
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3. On a plain reading , it seems to us that the reliefs, if granted, would effectively dispose of the Petition itself. The Respondents have no objection to the Interim Application being taken up. We have considered Mr Limaye's submission on behalf of the Thane Municipal Corporation ("TMC")
4. To put these in perceptive, a brief outline of the facts is necessary. The challenge in the Writ Petition is to the action of the TMC in correspondence dated 9th March 2006 and 20th July 2006 demanding possession of all lands under reservation including, importantly for our purposes today, a plot of land reserved for a Retail Market "free of cost". The grounds of challenge in the Writ Petition are many. The principal one is that the ceiling limit and the attached conditions in Clause 10 of an 11th January 1984 order under Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 ("ULC Act") as it then stood no longer survive the repeal of that Act.
5. The ULC Act stood repealed by the Urban Land (Ceiling & Regulation) Repeal Act, 1999. On 29th November 2007, the State Legislature adopted the Repeal Act and it was brought into force in the State of Maharashtra. The Petition itself was filed in 2007 and was amended to reflect the change in law.
6. There is a long jurisprudential history to the effect of the repeal and the savings clause and in particular in regard to Section 20 of the ULC Act.
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7. On 3rd September 2014, a Full Bench of this Court considered the effect of the Repeal Act in Maharashtra Chamber of Housing Industry & Ors v State of Maharashtra & Anr.1 The majority held that exemptions granted under Section 20 of the ULC Act did not abate on repeal.2
8. The Government of Maharashtra appointed a committee under the chairmanship of Mr Justice BN Srikrishna (as he then was) and this committee recommended that the issue of exemption orders under Section 20 could and should be closed by accepting a certain payment. That proposal by the State Government was ultimately accepted in a Civil Appeal before the Supreme Court (order dated 2nd July 2019).3
9. This led to the State Government issuing the first of the GRs dated 1st August 2019 by which it effectively offered to close all pending issues regarding surplus land and retention land by accepting a payment, which we shall call a premium, since this is the terminology commonly used throughout these proceedings. There was a second GR dated 16th September 2019.
10. To appreciate the context, and this may be necessary because we are finally disposing of the Petition itself, it is necessary to briefly 1 2014 SCC OnLine Bom 1083 : (2014) 6 Mah LJ 829 (FB) : (2014) 6 Bom CR 247 (FB).
2 Per SC Dharmadhikari and GS Kulkarni JJ; SC Gupte J dissenting. Kulkarni J delivered a separate judgment concurring with Dharmadhikari J. 3 Maharashtra Chamber of Housing Industry & Ors v State of Maharashtra & Anr, Civil Appeal No 558 of 2017 (unreported), originally Special Leave Petition (C) No 29006 of 2014 from the Full Bench decision, supra.
Page 4 of 196th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC review the position in law. We considered these aspects in a recent judgment delivered on 30th March 2023 in Salim Alimahomed Porbanderwalla & Anr v State of Maharashtra & Ors.4 For compactness, we reproduce the relevant portion of that order:
12. The ULC Act's stated purposes were two: first, to prevent land speculation and profiteering by a concentration of urban lands in the hands of a few; and, second, to achieve an equitable distribution of land in urban agglomeration for the greater common good.
13. Chapter III of the ULC Act had specific provisions directed towards these objective. Broadly, there were three strategies. (1) the imposing of a 'ceiling' on vacant land in urban agglomerations, (2) acquiring lands exceeding the ceiling, and (3) regulating construction on such land.
Chapter III thus -- and logically -- had three sub-parts. Sections 3 through 18 dealt with ceiling limits, determining vacant land and the acquisition of 'surplus' land (land exceeding the ceiling). Sections 19 to 22 dealt with exemptions (and this is important for our purposes today). Sections 23 and 24 dealt with disposal of vacant lands. Section 3 was what we may call the trigger provision. It contained the prohibition -- the heart of the ULC Act. No person could hold vacant land beyond the prescribed ceiling limit in the areas covered by the ULC Act. Ceilings and the method of computing these for different agglomerations were set out in Section 4. We pass over some of the following sections and come to Sections 6 through 9. These set out the operability of the Act. The 'determination' (of ceilings, surplus land, etc) began with a compulsory filing of statements by anyone who held vacant land beyond the ceiling limit as on the date of the ULC Act's commencement. Particulars were to be submitted. The 4 NC: 2023:BHC-OS:2190-DB : 2023 SCC OnLine Bom 731.
Page 5 of 196th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC excess vacant land was to be determined under Section 9. A final statement of determination of excess vacant land (and its service) was to be done under Section 9 (Section 8 contained parallel provisions for a draft statement). Section 10 dealt with the acquisition of excess vacant land by the State Government. A notification with particulars was required proposing the acquisition inviting claims, determining these, and then a declaration of the acquisition. On publication of that notification, the land was deemed to vest absolutely in the State Government with effect from the specified date. Between the dates of the notifications, transfers were forbidden. Then there were provisions for the government to take possession of the acquired lands, including a surrender or possession by force. Compensation was the subject of Sections 11 to 14. Section 19 dealt with situations of exemption -- where Chapter III would not apply to certain vacant lands (such as those held by the State or Central Government, banks, etc). Then came Section 20. This empowered the State Government to exempt any vacant land on specific conditions and also empowered it to withdraw any such exemption for non- compliance. Section 21 set out the circumstances in which some surplus vacant lands would not be treated as such, and Section 22 addressed cases under which land owners could retain the excess vacant land. Sections 23 and 24 had provisions for disposal of vacant lands so acquired by the State Government (i.e., in advancement of the principle of equitable distribution).
14. We need not be delayed with a fuller examination of the remaining sections. Historically, not all acquisitions were completed. Some indeed were, and possession followed. Others were pending, winding their way through appeals and revisions.
15. But for some lands, orders came to be made under Sections 20 and 21, sanctioning what are called 'schemes'.
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16. Section 3 of the Repeal Act had a savings clause. Section 3(1) said the repeal would not affect (1) the vesting of any land of which possession had been taken by the State Government; (2) the validity of any exemption order under Section 20(1) or any action taken thereunder; 5 or (3) any payment made to the State Government as a condition for granting a Section 20(1) exemption. Section 3(2)(a) said that where any land vested in the State Government but possession had not yet been taken by the State Government, and under (b) where any amount had been paid by the State Government regarding such land, then that land would not be restored unless the amount paid (if any) was refunded to the State Government.
17. It is the savings clause that fell for consideration. The reference to the Full Bench was made because there were as many as five Division Bench decisions that took conflicting views.6 Ultimately, by a 2:1 majority, the Full 5 'notwithstanding any judgment of any court to the contrary'. 6 Sundersons v State of Maharashtra, 2008 SCC Online Bom 602 : (2008) 6 Mah LJ 332 : (2008) 5 Bom CR 85 held that the Collector could not instruct sub-registrars to insist on a NOC from the Competent Authority before registering a document of transfer -- the invoked circular did not confer such power. In Damodar Laxman Navare v State of Maharashtra, 2010 SCC OnLine Bom 951 : (2010) 5 Mah LJ 92 : (2010) 6 Bom CR 611, the Division Bench quashed two letters one preventing sanctioning of plans or registering and the other demanding penalty for extending time to complete a Section 20 scheme.
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"(a) That the repeal of the Principal Act shall not affect the validity of the order of exemption under section 20(1) of the Principal Act and all consequences following the same including keeping intact the power to withdraw the said exemption by recourse to section 20(2) of the Principal Act. Further, merely because section 20(2) is not specifically mentioned in the saving clause enacted by section 3(1)(b) of the Repeal Act that does not mean that the power is not saved. The said power is also saved by virtue of applicability of section 6 of the General Clauses Act, 1897. That section of the General Clauses Act, 1897 applies to section 3(1)(b) of the Repeal Act.
(b) Once having held that the power to withdraw the exemption also survives the repeal of the Principal Act, then, all consequences must follow and the said power In Mira Bhayandar Builders & Developers Welfare Association v Deputy Collector, 2009:BHC-AS:15192-DB, the Division Bench upheld a circular directing the sub-registrar to verify if the scheme holder had sought a time extension to complete the scheme, and, if it had, not to register a document if no time extension had been sought (i.e., preventing transfers without completion or a time extension being sought for completion). In Jayesh Tokarshi Shah v Deputy Collector, (Writ Petition No 3815 of 2010, decided on 26th October 2010), another Division Bench considered similar circulars prohibiting registration of conveyances of flats constructed under delayed Section 20 schemes which did not have time extensions or NOCs. That Bench perceived a conflict between the views in Sundersons and Navare on the one hand and Mira Bhayandar on the other. The Jayesh Tokarshi Shah court referenced another decision that held that the powers of the State under Section 20 in cases of breach of exemption conditions were restricted to withdrawing the exemption. The Division Bench preferred this view, but said it would conflict with the decision in Mira Bhayander Builders, and therefore a reference to a Full Bench was necessary.Page 8 of 19
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(c) Question Nos. 1 and 2 in the AFFIRMATIVE, by holding that section 6 of the General Clauses Act, 1897 applies to the savings of the exemption order including all terms and conditions thereof, validity of which or any action taken thereunder has been saved by section 3(1)(b) notwithstanding any judgment of any Court to the contrary.
(d) Question Nos. 3 and 4 will have to be answered as above, but by clarifying that though it would be open for the State to enforce the exemption order and terms and conditions thereof, validity of which is saved by the Repeal Act, but having regard to the language of section 20(2) of the Principal Act it cannot be held that same can be enforced only by withdrawal of the order of exemption in terms of sub-section (2) of section 20, which power also survives the repeal of the Principal Act. In other words, though section 3(1)(b) of the Repeal Act read with section 6 of the General Clauses Act, 1897 states that repeal of the Principal Act shall not affect the validity of the exemption order passed under section 20(1) of the Principal Act or any action taken thereunder notwithstanding any judgment of any Court to the contrary, still the obligations and liabilities incurred Page 9 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC voluntarily under the exemption order by the person holding the vacant land in excess of ceiling limit need not be enforced only by exercise of powers under sub-section (2) of section 20 of the Principal Act, but by all other legally permissible means.
(e) We also clarify that though our answers to Questions 3 and 4 would be as aforesaid, still whether any of these powers could be exercised and to what extent are all matters which must be decided in the facts and circumstances of each case. In the event the State desires to take any action in terms of section 20(2) of the Principal Act it would be open for the aggrieved parties to urge that such an action is not permissible in the given facts and circumstances particularly because of enormous and unexplained delay, the parties having altered their position to their detriment, the proceedings as also the orders in that behalf are grossly unfair, unjust, arbitrary, high handed, mala fide and violative of the principles of natural justice and of the Constitutional mandate enshrined in Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India. These and other contentions can always be raised and irrespective of our conclusions, individual orders can always be challenged and action thereunder impugned in appropriate legal proceedings including under Article 226 of the Constitution of India. (f ) The aggrieved parties can also urge that while seeking to enforce the terms and conditions of the exemption order or recalling or withdrawing the exemption itself the Page 10 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC competent authorities/State has not adhered to the provisions of law applicable for such exercise. Meaning thereby there has to be a specific order in that behalf and mere issuance of administrative instructions or circulars will not suffice. All such objections can as well be raised and in individual cases.
(g) By our answers to Questions 1 to 4 above, we should not be taken to have held that there is a mandate under the Repeal Act to withdraw the order of exemption passed under section 20(1) of the Principal Act and the Government is obliged to withdraw it in the event the said order or any terms or conditions thereof have not been satisfied rather violated or breached. In the light of the wording of section 20(2) of the Principal Act the State is competent to withdraw, but only after giving a reasonable opportunity to the persons concerned for making representation against the proposed withdrawal. The Government is obliged to pass an order withdrawing any exemption and needless to clarify that in the event such an order is passed it can be impugned and challenged by the aggrieved parties in appropriate proceedings on the grounds that it is unreasoned and/or in the given facts and circumstances such an order could not have been passed or need not be passed and the Government could have granted time to comply with the terms and conditions or that the terms and conditions relying on which and for breach of which the exemption order is withdrawn are not violated or breached, they Page 11 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC were not mandatory and have been substantially complied with or were incapable of being complied with because of several factors, obstacles and hurdles each of which cannot be enumerated or termed as exhaustive in any manner. Therefore, if the Government is not mandated to withdraw the exemption order, but can ensure compliance of the terms and conditions without withdrawal of the exemption order or without recourse to section 20(2) of the Principal Act, then, needless to clarify that all liabilities, obligations and equally the remedies available to the parties are unaffected by repeal and can be resorted to in the afore stated events.
(h) In the light of our conclusions as enumerated in paragraph No. 125 above we hold that the view taken by the Division Bench in Vithabai Bama Bhandari v. State of Maharashtra reported in 2009 (4) Mh. L.J. 693 : 2009 (3) Bom. C.R. 663 (Writ Petition No. 4241/2008 decided on 31st March/16th April, 2009) does not lay down the correct law and to the extent indicated hereinabove."
11. This is the jurisprudential background to the Repeal Act and Section 20 of the ULC Act.
12. As regards Section 21, this Court passed an order on 11th March 2015 in Writ Petition No. 1178 of 2014, Swastik Constructions v State of Maharashtra & Ors.7 That decision inter alia held that Section 21 of the ULC Act would not survive the repeal of the ULC 7 2015 SCC OnLine Bom 3848.
Page 12 of 196th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC Act. The conditions of the Exemption Order under Section 21 are not enforceable. The Division Bench held, inter alia following an earlier decision of this Court in Voltas Ltd & Anr v Additional Collector and Competent Authority & Ors:8
9. The effect of an order under Sub-Section (1) of Section 21 is that the vacant land held in excess of ceiling limit which is covered by the order under Sub-Section (1) is declared as not be excess land for the purposes of Chapter III and permit such person to continue to hold such land for the purposes set out in Sub-Section (1), subject to the terms and conditions incorporated in the said order. Sub-Section (2) provides that if there is any contravention of the conditions incorporated in the permission under Sub- Section (1) of Section 21, the Competent Authority is empowered to declare such land to be a vacant land held in excess of ceiling limits and thereupon all the provisions of Chapter III shall apply to the land held in excess of ceiling limit.
10. It will be necessary to make a reference to Sections 3 and 4 of the Repeal Act. From Clause (b) of Sub-Section (1) of Section 3, it appears that notwithstanding the Repeal, the validity of any order granting exemption under Sub-Section (1) of Section 20 will not be affected. In short, the validity of such order has been saved. Section 4 provides that all proceedings relating to any order made or purportedly made under the Principal Act (ULC Act) pending immediately before the commencement of the Repeal Act, before any Court, Tribunal or other authority shall abate. Section 4 saves the proceedings only relating to Sections 11, 13 and 14 of the ULC Act insofar as such proceedings are relatable to the land, the possession of which has been taken by the State Government.
8 NC: 2008:BHC-AS:14572-DB : 2008 SCC OnLine Bom 701 : (2008) 5 Bom CR 746.
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11. We have perused the order dated 27th November, 1983 under Sub-Section (1) of Section 21 of the ULC Act. The legal effect of order under Sub-Section (1) of Section 21 is already noted above. Once there is such an order under Sub-Section (1) of Section 21, the vacant land held in excess of ceiling limit cannot be treated as an excess land for the purposes of Chapter III. Only in case of breach of terms and conditions of the order under Sub-Section (1) of Section 21 that the power under Sub-Section (2) can be exercised by the Competent Authority of declaring the vacant land to be an excess land. On plain reading of the Repeal Act, the validity of order under Sub-Section (1) of Section 21 has not been saved. Even the power under Sub-Section (2) of Section 21 has not been saved. Therefore, till the date of Repeal (i.e. 29th November, 2007), the said land was not a vacant land held in excess of ceiling limit. Though the repeal Act does not save the validity of an order under Sub-Section (1) of Section 21 of the ULC Act, after 29th November, 2007, the provisions of Chapter III cannot be applied to the said land.
(Emphasis added)
13. A Special Leave Petition against this order was dismissed on 5th October 2015, 9and the decision in Swastik Constructions thus attained finality.
14. To return to the facts of the matter at hand, following the Swastik Constructions decision and the dismissal of the Special Leave Petition, the State Government issued a Circular dated 5th December 2018. This specifically references the Swastik Constructions judgment and it directs all Municipal Corporations 9 SLP (C) No 18067 of 2015.
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15. This is the foundation of the Interim Application, i.e. the Swastik Constructions judgment and the subsequent Circular dated 5th December 2018.
16. The applicable town planning law has also altered. The State Government has now approved the Unified Development Control and Promotion Regulations for Maharashtra, 2020 ("UDCPR- 2020") and these now govern development including inter alia in Chapter 11, Regulation 11.1 read with Table 11-A. What has materially altered is that while under the conditions imposed in the Section 21 order the reference was to the Development Control Regulations of 1968, these being now not applicable, according to the Petitioners, their development proposal is and should be held to be controlled by UDCPR-2020. There is an immediate benefit to the Petitioners because the revised and updated development regulations now allow for increased built up area.
17. Importantly, the Petitioners do not question the reservation for a Retail Market itself. They also do not question or assail their obligation to construct the Retail Market and to deliver possession of it to the TMC free of cost.
18. To ensure that there is not a slightest ambiguity about this, yesterday we asked the Petitioners' Counsel to file a short Affidavit Page 15 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC confirming these. We said we would accept these as undertakings to the Court. There is now Affidavit dated 5th June 2023 filed by one Sahil Modi a Director of the 2nd Petitioner. The Affidavit is accepted. A copy of affidavit is given to Mr Limaye. The original is to be filed in the Registry. Paragraph 7 and its table and paragraph 8 of this Affidavit from pages 3 to 5 are reproduced below:
"7. I say that Chapter 11 provides for Acquisition and Development of Reserved Sites in Development Plans. I say that the said chapter provides of use of land situated within the planning authority which have been reserved for certain purpose in the Development Plan, shall be regulated in regard to type and manner of development/redevelopment according to the provisions mentioned in table 11A. I say that the following provision deal with the Commercial- Market and Mandies which read as under:-
3) Commercial 3.1) Market and Planning The Planning Mandies- Authority/ Authority/Appropriate
a) Weekly Market Appropriate Authority shall acquire
b) Vegetable Authority/ the land and develop the Market Owner reservation for the same
c) Open Market purpose.
d) Hawkers Market OR
3.2) Shopping i) The Authority may
Centres allow the owner to
a) Shopping develop the reservation,
Centre subject to handing over
b) Commercial to the Planning Authority
Complex an independent plot
c) District along with constructed
Commercial centre amenity of total area,
d) Municipal mentioned in Note-1
Market below this table & as per
e) Fish Market norms prescribed by the
f) District Authority.
Commercial (C-2) ii) The owner shall be
etc. entitled to develop
remaining land for the
uses permissible in
adjoining zone with full
permissible FSI of the
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901-ASIAWP-1463-2022.DOC
entire plot and
permissible TDR
potential of the entire
plot.
iii) The Authority, if
required, shall allow the
TDR for the unutilized
FSI, if any (after
deducting in -situ FSI), to
be utilized as per TDR
Regulations.
iv) Reservation may be
allowed to be developed
in parts.
Hereto annexed and marked as EXHIBIT "A" is a copy of the said provisions.
8. I say that in terms of the aforesaid provisions of UDCPR now governs the field in accordance with the Chapter-11, Regulation 11.1 and Table-11-A as may be amended from time to time. According to aforesaid table, the Petitioners are entitled to develop the Plot under Reservation of Retail Market according to the policy framed i.e. by constructing 50% of built up area of the entire/whole plot upon 40% of physical land & transferring the same to the Thane Municipal Corporation "free of costs" and the Petitioners are entitled to utilised entire FSI/Additional FSI by way of TDR, premium FSI, TOD FSI or any other FSI that may be permitted in UDCPR or in future including ancillary FSI and Fungible FSI etc of the whole/entire plot on the 60% physical plot for its own use and sale of premises in open market. I say that the built up area amenity along with the plot to be transferred to Thane Municipal Corporation shall be in accordance with the applicable provision as per said UDCPR-2020 as may be amended from time to time."
19. The statements made on affidavit are accepted as undertakings to the Court. To avoid all ambiguity, the undertakings Page 17 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC are that the Petitioners will construct the Retail Municipal Market as per the reservation and will deliver possession of it to the TMC.
20. This necessarily means that the other relaxations that the Petitioners seek, specifically that the development be allowed to be proposed in terms of the UDCPR-2020 should be accepted.
21. Having regards to these undertakings, we do not see how there is any disadvantage or loss to the public authority, namely the TMC. The law itself seems to us abundantly clear and it would be incongruous to hold that only because of the reservation first instituted under Section 21 of the ULC Act, since repealed, the entire development is now constrained to a Development Regulation regime that is no longer in force. It is of course always a Court's primary concern to ensure that a public reservation is not taken away for the asking. Now that we have ensured this aspect of the matter, we do not believe there is an impediment to the grant of relief in the Interim Application.
22. The Interim Application is thus made absolute in terms of prayer clause (a) with the undertakings listed above being accepted as undertakings to the Court.
23. We clarify in closing that our understanding is that the retail market will be constructed by the Petitioners at their cost according to the specifications stipulated by the TMC. The consequence of this is that the Petitioners are at liberty to submit a revised or fresh proposal for redevelopment in accordance with UDCPR-2020. This Page 18 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 ::: 901-ASIAWP-1463-2022.DOC must include the construction according to the Thane Mumbai Corporation's specifications, at the Petitioners' cost, of the Retail Market. Possession of the Retail Market must be delivered to the TMC within the time stipulated by the TMC.
24. In our view, this is also sufficient to dispose of the Petition itself. Rule is thus made absolute in the aforesaid terms. There will be no order as to costs.
(Neela Gokhale, J) (G. S. Patel, J) Digitally signed by RAJU RAJU DATTATRAYA DATTATRAYA GAIKWAD GAIKWAD Date: 2023.06.07 11:11:50 +0530 Page 19 of 19 6th June 2023 ::: Uploaded on - 07/06/2023 ::: Downloaded on - 07/06/2023 21:22:26 :::