Bombay High Court
M/S. Siddhi Real Estate Developers vs State Of Maharashtra And Anr on 3 July, 2020
Equivalent citations: AIR 2020 (NOC) 821 (BOM.), AIRONLINE 2020 BOM 715
Bench: S. J. Kathawalla, B. P. Colabawalla
Digitally
signed by
N. D.
N. D. Jagtap
Jagtap Date:
2020.07.03
11:17:31
+0530
9.wp.12285.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12285 OF 2015
M/s Siddhi Real Estate Developers ..Petitioner
Vs.
State of Maharashtra and Another ..Respondents
Mr. P. K. Dhakephalkar, Senior Advocate a/w Mr. Pratik Kothari
i/b Mr. Saurabh Oka, for the Petitioner.
Mr. R. S. Apte, Senior Advocate i/b Mr. A. R. Pitale, for
Respondent No.2.
Mrs. S. D. Vyas, 'B' Panel Counsel for the State.
CORAM:-S. J. KATHAWALLA &
B. P. COLABAWALLA, JJ.
Reserved on : JANUARY 09, 2020.
Prounounced on : JULY 03, 2020
JUDGEMENT:[ B. P. COLABAWALLA J. ]
1. RULE. Respondents waive service. By consent of parties, Rule made returnable forthwith and heard finally.
2. This Petition has been filed under Article 226 of the Constitution of India seeking a declaration that the Petitioner is Aswale 1/39
9.wp.12285.15.doc entitled to Transferable Development Rights ("TDR") in the form of Floor Space Index ("FSI") equivalent to the area of the DP Roads developed and paid for respectively by the Petitioner. Reliefs are also sought for quashing the rejection by the Respondents to grant TDR to the Petitioner as well as for a direction against the Respondents to grant TDR in the form of FSI to the Petitioner equivalent to the area of the DP Roads developed and paid for by the Petitioner.
3. It is the case of the Petitioner that it is the owner of and otherwise well and sufficiently entitled to several pieces and parcels of the land admeasuring in aggregate to approximately 85,778 sq.mtrs. or thereabouts situated at village Dhokali, Thane (for short "the said property"). The Petitioner has inter alia developed a residential project by the name "Highland Residency" on the said property. A portion of the said property admeasuring 6913.21 sq.mtrs. or thereabout were reserved under the development plan of Thane for the purposes of a 25 meter wide development plan road admeasuring 4169.05 sq.mtrs (the first DP Road) and a 15 meter wide development plan road admeasuring 2744.16 sq.mtrs (the second DP Road). According Aswale 2/39
9.wp.12285.15.doc to the Petitioner, since it has paid the entire amount to Respondent No.2 (Thane Municipal Corporation) for construction of the first DP Road and have also constructed the second DP Road (at their own cost) and thereafter surrendered the same to Respondent No.2, the Petitioner is entitled to TDR in the form of FSI equivalent to the area of the said two DP Roads. It is the case of the Petitioner that Respondent No.2 is under a statutory obligation to grant TDR in the form of FSI equivalent to the area of said two DP Roads respectively in terms of clause 6 of Appendix- W to the Development Control Regulations for Municipal Corporation of the City of Thane, 1994 (for short "DCR, 1994") and the applicable provisions of the Maharashtra Regional Town Planning Act, 1966 (for short "the MRTP Act, 1966"). The Petitioner has requested Respondent No.2 to grant the aforesaid TDR to it and which request is rejected by Respondent No.2. It is on this basis that the present Petition is filed.
4. Before we advert to the legal submissions advanced by counsel on both sides, it would be necessary to set out some facts which are really undisputed. As mentioned earlier, the Petitioner is the owner of pieces and parcels of land admeasuring in Aswale 3/39
9.wp.12285.15.doc aggregate approximately 85,778 sq. meters situated at Dhokali, Thane (the said property). Since the Petitioner wanted to develop the said property, the Petitioner, vide its proposal dated 27th November, 2000, submitted building plans to Respondent No.2 for residential development on the said property.
5. This Proposal of the Petitioner was sanctioned and plans for development were approved by Respondent No.2 on 14th December, 2000 on certain terms and conditions. One of the terms and conditions was that the said property was affected by the first DP Road and after construction of the same it was to be handed over by the Petitioner before granting the commencement certificate. Thereafter, on 23rd February, 2001 pursuant to an application bearing no. 6483 made by the Petitioner, Respondent No.2 amended the permissions with respect to the construction of the first DP Road and granted the first commencement certificate. The first commencement certificate issued by Respondent No.2 was on 16th March, 2001 which inter alia stipulated for construction of the first DP Road and stated that it was necessary to construct the first DP Road in the said plot of land along with work of the remaining road of the Thane Municipal Corporation Aswale 4/39
9.wp.12285.15.doc on or before obtaining the Occupation Certificate. This condition was reiterated in the subsequent commencement certificates dated 2nd June, 2001 and 18th August, 2001 respectively.
6. Thereafter, Respondent No.2 decided to construct the first DP Road themselves and hence by a letter dated 2nd March, 2002, Respondent No.2 informed the Architect of the Petitioner that the cost of construction of the first DP Road amounted to Rs.31,67,670/- which amount would have to be deposited with Respondent No.2. It is not in dispute that this amount has been duly deposited between the period 2005 to 2007. It is also not in dispute that this amount was deposited by the Petitioner with Respondent No.2 for the construction of the first DP Road.
7. Thereafter, further commencement certificates were granted by Respondent No.2 dated 20th March, 2002, 22nd October, 2002 and 25th March, 2003 respectively. All the above three commencement certificates stipulated that the Petitioner shall construct the second DP Road and also pay the cost of construction of the first DP Road before obtaining the Occupation Certificate. These commencement certificates can be found at Aswale 5/39
9.wp.12285.15.doc pages 44 to 59 respectively.
8. It is not in dispute that the Petitioner not only paid for the construction of the first DP Road but also completed the construction of the second DP Road and handed over the entire area of 6913.21 sq. mtrs (total of the first and second DP Roads) to Respondent No.2. In fact, the Town Development Department has also issued a possession receipt acknowledging the same and which can be found at page 60 of the Petition.
9. In furtherance of handing over of possession of the two DP Roads, Respondent No.2 vide its letter dated 25th June, 2003 addressed to the Tahsildar, Thane inter alia recorded that the Petitioner has handed over possession of the lands of the DP Road to Respondent No.2 and that the ownership of these lands (namely the DP Roads) should be transferred in the name of Respondent No.2 in the records of rights and a separate 7/12 extract be issued in the name of Respondent No.2.
10. As mentioned earlier, between the year 2005-2007, the Petitioner paid Respondent No.2 an amount of Rs.31,81,670/- Aswale 6/39
9.wp.12285.15.doc towards the cost of construction of the first DP Road and Respondent No.2 has even issued payment receipts towards the same from time to time. These receipts can be found at Exhibits F- 1 to F-5 of the Petition.
11. We must also mention here that there is no dispute that the TDR for surrendering the land for the DP Roads has been given/paid over/allotted to the Petitioner. The dispute in this Petition only relates to the grant of TDR in the form of FSI for the construction and development of the amenities being the aforesaid two DP Roads.
12. In these circumstances, under their letter dated 17th October, 2013 the Petitioner appraised Respondent No.2 with respect to the facts pertaining to (a) handing over of the DP Roads; (b) the development/construction of the second DP Road as an amenity; and (c) payment of the cost of construction for the first DP Road (Rs.31,81,670/-) duly borne and paid for by the Petitioner and deposited with Respondent No.2. In view thereof, the Petitioner requested Respondent No.2 to grant to the Petitioner TDR in the form of FSI equivalent to an area Aswale 7/39
9.wp.12285.15.doc admeasuring 6913.21 sq.mtrs. for the construction and development of the amenities being the first and second DP Roads.
13. Subsequently, another letter was also written on 20th December, 2013 by the Architect of the Petitioner reiterating the facts and pointing out the relevant legal provisions entitling the Petitioner to amenity TDR for the construction of /payment towards the aforesaid two DP Roads.
14. In reply to the aforesaid letters, Respondent No.2 by its letter dated 18th November, 2014 inter alia sought to contend that there was no provision in the DCR, 1994 regarding grant of TDR against the payment deposited for the cost of construction of the first DP Road. According to the Petitioner, since this was wrongly contended by Respondent No.2, it has been continuously following up with the office of Respondent No.2 for the grant of the aforesaid TDR but they have not received any justice from Respondent No.2. It is in these circumstances that the Petitioner has approached this Court under article 226 of the Constitution of India by filing the present Petition in this Court and which was Aswale 8/39
9.wp.12285.15.doc lodged on 29th October, 2015.
15. In this factual background, Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the Petitioner, submitted that in the present case the Petitioner has admittedly
(a) surrendered the land of the first DP Road and also paid the cost of the construction of the first DP road to Respondent No.2; and (b) surrendered the land of second DP Road and also constructed the same at its own costs. He submitted that Respondent No.2 had refused to grant TDR in the form of FSI to the Petitioner for the area equivalent to the construction of the amenity (namely the construction of the two DP Roads) mainly on two grounds. They are:- (a) that there is no provision in the DCR, 1994 to grant TDR for the consideration paid towards the construction of the first DP Road; and (b) the plot holder (namely the Petitioner) is responsible to provide the approach road to the plot of land as per Regulation 47 of the DCR, 1994 and hence TDR asked for by the Petitioner towards construction of such a road is not permissible. Mr. Dhakephalkar submitted that both the aforesaid contentions are without any basis and contrary to the statutory provisions of the DCR, 1994 as well as the MRTP Act, Aswale 9/39
9.wp.12285.15.doc 1966.
16. In this regard, Mr. Dhakephalkar brought to our attention the definition of the word "Amenity" (under the MRTP Act, 1966) which means roads, streets, open spaces, parks, recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences. Mr. Dhakephalkar then brought to our attention the provisions of Section 126 of the MRTP Act, 1966 which deals with acquisition of land required for public purposes specified in plans and placed reliance on Section 126(1)(b) which inter alia states that if any land is required or reserved for any public purpose, specified in any plan, the Planning Authority may, acquire the land by an agreement by paying the agreed amount; or in lieu of such amount, by granting the land owner FSI or TDR against the area of land surrendered free of cost and free from all encumbrances and also further additional FSI or TDR against the development or construction of the amenity on the surrendered Aswale 10/39
9.wp.12285.15.doc land provided the same is developed / constructed at his own cost. Mr Dhakephalkar therefore submitted that the MRTP Act, 1966 itself contemplated the grant of further additional FSI or TDR against the development or construction of an amenity.
17. Mr. Dhakephalkar thereafter brought to our attention Appendix-W of the DCR, 1994 which deals with Regulations for the grant of TDR to the owners/developers and conditions for grant of such TDR. He placed reliance on Clauses 5 and 6 of Appendix-W to show that the built-up area for the purpose of FSI credit in the form of DRC shall be equal to the gross area of the reserved plot to be surrendered and will proportionately increase or decrease according to the permissible FSI of the zone wherefrom the TDR has originated. Mr. Dhakephalkar submitted that Clause 6 of Appendix-W clearly states that when an owner or lessee also develops or constructs the amenity on the surrendered plot at his own cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction, and hands over the said developed/constructed amenity to the Commissioner/appropriate authority free of cost, he may be granted by the Commissioner Aswale 11/39
9.wp.12285.15.doc further Development Rights (DR) in the form of FSI equivalent to the area of the construction/development done by him, utilisation of which etc will be subject to the Regulations contained in Appendix-W. He submitted that it can hardly be disputed and in fact it is not even the case of Respondent No.2 that a road is not an amenity as per the provisions of Section 2(2) of the MRTP Act, 1966. The DCR, 1994 itself is framed and notified under Section 158 of the MRTP Act, 1966 and the DCR, 1994 forms part of the development plan under Section 31 of the MRTP Act. He submitted that, therefore, the rules / regulations framed under the provisions of the Statute (in the present case the "DCR, 1994"
which are framed under the MRTP Act, 1966) form part of the Statute and have statutory force. He submitted that the DCR, 1994 and any amendments / modifications thereto are made as per the provisions contained in the MRTP Act, 1966 and have to be read in consonance with the MRTP Act, 1966. He submitted that it is the responsibility of the Planning Authority (in the present case Respondent No.2) to develop public amenities like roads etc made for use of the public at large and reserved as amenity space in the development plan. In the present case, Mr. Dhakephalkar submitted that the amenities are the two DP Aswale 12/39
9.wp.12285.15.doc Roads. He submitted that the intention of the Legislature for providing additional FSI/TDR to the developer/owner of the land for construction of an amenity on the said land is in the nature of an incentive since such developer/owner develops such amenity or pays the cost of construction of such development, which otherwise is the obligation of the Planning Authority. In the facts of the present case, Mr. Dhakephalkar submitted that admittedly the cost of the construction of the first DP Road was paid entirely by the Petitioner to Respondent No.2. As far as the second DP Road is concerned, Mr. Dhakephalkar submitted that the same was duly constructed by the Petitioner at his own cost. After this, both the DP Roads were handed over to Respondent No.2, namely the Planning Authority. These facts are undisputed. He, therefore, submitted that looking at the undisputed facts and juxtaposing them with the provisions of the MRTP Act, 1966 as well as Appendix-W of the DCR, 1994, the inescapable conclusion is that the Petitioner was entitled to TDR in the form of FSI for the area equivalent to the aforesaid two DP Roads as the same has been duly either constructed by the Petitioner (second DP Road) or was paid for by them (the first DP Road). He submitted that in the facts of the present case, the Petitioner has been issued a Aswale 13/39
9.wp.12285.15.doc Development Rights Certificate (DRC) for TDR in respect of only the land surrendered towards the first DP Road and the second DP Road and not towards the payment / construction of the first DP Road and the second DP Road, and which the Petitioner is entitled to under the provisions of the MRTP Act, 1966 and the DCR, 1994. Mr. Dhakephalkar submitted that in these circumstances and reading the provisions of the MRTP Act, 1966 and the DCR, 1994, it was incorrect on the part of Respondent No.2 to contend that because the Petitioner had paid for the cost of the construction of the first DP Road, it is not entitled to TDR as there was no provision in the DCR, 1994 for grant of TDR for the cost paid towards the construction of first DP Road. He submitted that this is very clear from the provisions of Section 126(1)(b) itself which clearly states that the Petitioner would be entitled to further FSI or TDR against development or construction of the amenity on the surrendered land at his costs. He submitted that the first DP Road was constructed at the cost of the Petitioner. This is undisputed. In these circumstances, it was totally incorrect on the part of Respondent No.2 to contend that the Petitioner was not entitled to TDR because there was no provision in the DCR, 1994 to grant TDR for the costs paid towards the Aswale 14/39
9.wp.12285.15.doc construction of the first DP Road.
18. As far as the second contention of Respondent No.2 is concerned, namely, that the plot holder was responsible to provide the approach road to the plot of land as per Regulation No. 47 of DCR, 1994 and hence the Petitioner was not entitled to TDR, Mr. Dhakephalkar submitted that the reliance placed on the aforesaid Regulation is wholly misplaced. Mr. Dhakephalkar submitted that admittedly the lands that were surrendered for the two roads and which were subsequently constructed were development plan roads and not private/internal access roads. Mr. Dhakephalkar submitted that the DP Roads that are the subject matter of the present Petition run within the Petitioner's land and the same is not an access road as sought to be contended by Respondent No.2. In the present case, the Petitioner has constructed and paid for two DP Roads which are to be used by the public at large and is not a private access road. This is also clear from the fact that the possession of these roads have been handed over to Respondent No.2 and thereafter transferred in the records of the rights and in the 7/12 extracts in the name of Respondent No.2. Mr. Dhakephalkar submitted that even the Aswale 15/39
9.wp.12285.15.doc proviso to Regulation 47 is of no assistance to Respondent No.2 which inter alia stipulates that permission may be granted on the plots facing a proposed DP Road provided the owner undertakes responsibility to construct a partial DP Road and/or alternate means of access. He submitted that the proviso to Regulation 47 does not provide that the construction of such DP road and/or alternate means of access would be free of cost or without any compensation to the owner/developer. This is obvious because it is the obligation of the Planning Authority to construct the amenity and not by a private individual. If such an obligation is discharged by the private individual (other than the Planning Authority), then, the Planning Authority is required to compensate the said individual for the same as provided under Section 126 (1) (b) of the MRTP Act, 1966. He submitted that Regulation 47 of DCR, 1994 does not and in fact cannot provide for anything which is contrary to the parent Act, namely the MRTP Act, 1966. He, therefore, submitted that the justification for not granting TDR to the Petitioner by placing reliance on Regulation 47 is wholly misconceived and misplaced.
19. In support of his submissions, Mr. Dhakephalkar relied Aswale 16/39
9.wp.12285.15.doc upon following decisions:-
(a) (2009) 5 Supreme Court Cases 24 [Godrej & Boyce Manufacturing Co. Ltd. v/s State of Maharashtra and Others.]
(b) Judgement of a Division Bench of this Court dated 20/07/2011 in WP/4172/2010 [Shrikant H. Soni v/s. Asst.
Director, Town Planning Authority Nashik Municipal Corporation & Ors].
(c) Judgment of a Division Bench of this Court dated 20/03/2019 passed in WP/7204/2016 [M/s. Siddhi Real Estate Developers V/s. State of Maharashtra & Others].
(d) Judgment of a Division Bench of this Court dated 18/10/2019 in WP/2531/2009 [Starwing developers Pvt. Ltd. v/s State of Maharashtra & Others].
20. In conclusion, Mr. Dhakephalkar submitted that the Petition be allowed and Respondent No.2 be directed to grant TDR in the form of FSI to the Petitioner for the area equivalent to the aforesaid two DP Roads admeasuring 6913.21 sq. mtrs.
21. On the other hand, Mr. Apte, the learned Senior Counsel appearing on behalf of Respondent No.2, submitted that the request of the Petitioner for grant of TDR equivalent to the area of the said two DP Roads was rejected by Respondent No.2 as far back as on 18th November, 2014. Despite this, the present Petition has been filed on 29th October, 2015 which is almost after Aswale 17/39
9.wp.12285.15.doc one year from the date of rejection. Mr. Apte submitted that the Petitioner has not given any explanation whatsoever for the aforesaid delay and laches and hence the Petition be dismissed on this ground alone.
22. Without prejudice to the aforesaid argument, Mr. Apte submitted that the TDR for construction of a road is granted under the provisions of Appendix-W to DCR, 1994. In the present case, the first DP Road was not constructed/developed by the Petitioner but the same was constructed by the Public Works Department of Respondent No.2. The development of the said road was a condition of the Commencement Certificate and it is in these circumstances that the Petitioner has paid a sum of Rs.31,81,670/- towards the cost of construction of the said road to enable it to get further permissions for its residential project. Mr. Apte submitted that the Municipal Commissioner of Respondent No.2 has issued a circular dated 7th July, 2014 dealing with the policy for grant of TDR for construction of a road. This policy makes it clear that no application shall be entertained by Respondent No.2 for TDR in lieu of any cost paid for development of an amenity. Mr. Apte submitted that neither has Aswale 18/39
9.wp.12285.15.doc the said circular, nor its relevant clauses, been challenged in the present Petition. This circular will, therefore, bind the Corporation and the Petitioner and in these circumstances no TDR could be granted to the Petitioner for and towards the construction of first DP Road.
23. Thereafter, Mr. Apte submitted that even otherwise, under Regulation 47 of DCR, 1994 it was mandatory for the Petitioner to construct an approach road. Mr. Apte brought to our attention and placed heavy reliance on the proviso to Regulation 47 and submitted that the above provisions in the DCR, 1994 fixes the responsibility on the owners/developers to provide access to the development project and the Corporation is duty bound to ensure proper access to the developed project whilst granting any development permission. Mr. Apte submitted that the Corporation has imposed condition for construction of the two DP Roads in the Commencement Certificates themselves with a view that the development proposal mooted by developer would be approvable as per the requirements of the DCR, 1994 and ensure a proper access road to the Petitioner's development project. He submitted that undisputedly, the Petitioner has Aswale 19/39
9.wp.12285.15.doc accepted the said condition and also executed an undertaking to that effect. In these circumstances, the Petitioner is not entitled for TDR for construction of the aforesaid two DP Roads, was the submission.
24. Mr. Apte then submitted that it is important to note that when the development proposal was submitted by the Petitioner, there was neither any DP Road in existence nor was there any access road. It is in these circumstances and as per Regulation 47 of the DCR, 1994, the Corporation being duty bound to ensure proper access to the Petitioner's development project, imposed the conditions for construction of the two DP Roads. In these facts, Mr. Apte submitted that the Petitioner was not entitled to claim TDR against the construction of the aforesaid two DP Roads.
25. As far as the judgments relied upon by the Petitioner are concerned, Mr. Apte submitted that none of the judgments relied upon by the Petitioner refer to Regulation 47 of DCR, 1994. In fact, according to Mr. Apte, the judgment delivered by a Division Bench of this Court in Writ Petition No. 7204 of 2016 Aswale 20/39
9.wp.12285.15.doc pertains to the conditions imposed by the Municipal Commissioner and which were held to be arbitrary and contrary to the provisions of Appendix-W. Even this judgment does not make any reference to Regulation 47 and hence is inapplicable to the facts of the present case. He further submitted that this judgment of the Division Bench (passed in Writ Petition No. 7204 of 2016 on 15th March, 2019) is questioned before the Apex Court and the SLP filed, is pending. He, therefore, submitted that even the judgments relied upon by the Petitioner are of no assistance and the rejection of the grant of TDR to the Petitioner vide Respondent No.2's letter dated 18th November, 2014 was fully justified. He therefore submitted that as a consequence there was no merit in the Writ Petition and the same be dismissed with costs.
26. We have heard the learned counsel for the parties at length and have perused the papers and proceedings in the above Writ Petition as well as the written submissions submitted by the advocates for the Petitioner as well as the advocates for Respondent No.2. We have also considered the case law cited on behalf of the Petitioner. As seen from the discussion above, the Aswale 21/39
9.wp.12285.15.doc controversy in the present Petition is the non-grant of the TDR in the form of FSI to the Petitioner for the area equivalent to the construction of the amenity (the first and second DP Roads) on the surrendered land. As far as the first DP Road is concerned, though, initially the same was to be constructed by the Petitioner, it was later decided that the same would be constructed by Respondent No.2 and for construction of the same, the Petitioner would deposit with Respondent No.2 a sum of Rs.31,81,670/-. It is not in dispute that this cost of construction has been duly deposited by the Petitioner with Respondent No.2. As far as the second DP Road is concerned, it is also not in dispute that the same was duly constructed by the Petitioner on the surrendered land at its own cost and thereafter both the DP Roads were handed over to Respondent No.2. In fact, after possession of the aforesaid two DP Roads was taken over by Respondent No.2, it has also got the same transferred in its name in the records of rights and a separate 7/12 extract was also issued in the name of Respondent No.2 showing Respondent No.2 as the owner of the aforesaid two DP Roads.
27. In these facts, we have to examine whether the Aswale 22/39
9.wp.12285.15.doc Petitioner would be entitled to TDR in the form of FSI for the area equivalent to the construction of the DP Roads and which comes to approximately 6913.21 sq. mtrs. In this regard, before we proceed further, it would be necessary to refer to certain statutory provisions in the MRTP Act, 1966 as well as in the DCR, 1994. Section 2 of the MRTP Act, 1966 is the definitions section. Section 2(2) defines the word "Amenity" and reads thus:-
2.Definitions In this Act, unless the context otherwise requires,---
"2(2) "Amenity" means roads, streets, open spaces, parks, recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences."
28. On a plain reading of the aforesaid Section it is apparently clear that a road would fall within the definition of the word "Amenity". In fact, it has not even been disputed before us that a road would be an amenity as contemplated under Section 2(2) of the MRTP Act, 1966.
29. The next provision which would be relevant for our purpose would be Section 126 of the MRTP Act, 1966 and which Aswale 23/39
9.wp.12285.15.doc inter alia deals with acquisition of land required for public purposes specified in plans. Section 126, insofar as it is relevant for our purposes, is reproduced hereunder:-
"126.Acquisition of land required for public purposes specified in plans "(1) When after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any appropriate Authority may, except as otherwise provided in section 113-A, acquire the land
(a) by an agreement by paying an amount agreed to or,
(b) in lieu of any such amount, by granting the land-
owner or, the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case maybe, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or
(c) by making in application to the State Government for acquiring such land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and the land (together with the amenity, if any, so developed or constructed) so acquired Aswale 24/39
9.wp.12285.15.doc by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appellate Authority."
2 ....................................................... 3 ........................................................ 4 ........................................................."
30. As can be seen from Section 126 (1) when after the publication of a draft Regional Plan, a Development or any other Plan or Town Planning Scheme, any land is required or reserved for any of the public purposes specified in any Plan or Scheme under the MRTP Act, 1966, at any time, the Planning Authority, Development Authority or as the case may be, any Appropriate Authority may, except as otherwise provided in Section 113A, acquire the land (a) by agreement by paying an amount agreed to; or (b) in lieu of such amount, by granting the land-owner FSI or TDR against area of land surrendered free of cost and free from any encumbrances. It further provides that additional FSI or TDR can be granted against the development or construction of the amenity on the surrendered land provided the same is developed/constructed at his own cost (namely other than the cost of the Authority). It is, therefore, quite clear that the Aswale 25/39
9.wp.12285.15.doc provisions of the MRTP Act, 1966 contemplate the grant of further additional FSI or TDR against the development or construction of an amenity.
31. Having said this, we shall now refer to certain provisions of the DCR, 1994. First would be Regulation 47. Insofar as the same is relevant for our purpose, is reproduced hereunder:-
47.Width of means of access-
(1) Residential and Commercial Zone -The plots shall abut on a public means of access like street or road. Plots which do not abut on a street or road shall abut or front on a means of access, the width and other requirements of which shall be as given in Table No. 3-A as given below -
TABLE NO. 3 (A) WIDTH OF ACCESS FOR RESIDENTIAL & COMMERCIAL ZONES Access Area Served (sq.m..) Length In meters Less than 1500- 4000- Over
(m) 1500 4000 10000 10000 1 Width in meters (m) 2 3 4 5 Less than 75 6.0 7.5 9.0 12.0 Above 75 to 7.5 7.5 9.0 12.0 150 9.0 9.0 9.0 12.0 Above 150 to 12.0 12.0 12.0 12.0 Aswale 26/39
9.wp.12285.15.doc 3000 Over 3000 Provided that in residential layouts, straight cul-de-sacs up to 150 m. long roads are permissible. An additional length up to 125 m. will be permissible, if an additional turning space is provided at 150 m. The dead end shall be at a level higher than the main road from where the cul-de-sac road takes off. The turning space, in each case, should not be less than 81 sq.m. in area, no dimension being less than 9 m.
(2) (a) The Commissioner shall permit access from streets having width of not less than 6 m. through land over which the public have a customary right of access or have used it or passed over it uninterruptedly for a period of 20 years.
(b) In congested area width of the right of way may be permitted to be reduced to 4.5 m. upto a length of 150 m. Provided that permission may be granted on plots facing on proposed D.P. Road provided owner undertakes responsibility to construct partial D.P. road and /or alternative mean of access."
32. As can be seen from Regulation 47, it really deals with the width of means of access. This is also clear from Table No. 3 (A) reproduced above. It talks about width of means of access for residential and commercial zone. The proviso to Section 47(2) stipulates that permission may be granted on plots facing on proposed DP Road provided the owner undertakes responsibility to construct a partial DP Road and/or alternative means of access. Aswale 27/39
9.wp.12285.15.doc
33. Thereafter, Appendix-W of DCR, 1994 deals with regulations for grant of TDR to owners/developers and conditions for grant of such TDR. For our purposes, Clauses 5 and 6 are relevant and read as under:-
CLAUSES 5 & 6 OF APPENDIX-W "5. the built up area for the purpose of FSI credit in the form of DRC shall be equal to the gross area of the reserved plot to be surrendered and will proportionately increase or decrease according to the permissible FSI of the zone where from the TDR has originated.
6. When an owner or lessee also develop or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction and hands over the said developed/constructed amenity to the Commissioner /appropriate authority, free of cost he may be granted by the Commissioner a further DR in the form of FSI equivalent to the area of the construction/development done by him utilisation of which etc. Will be subject to the Regulations contained in this Appendix."
34. As can be seen from the aforesaid clauses when the owner or lessee also develops or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction, and hands over the said developed/constructed amenity to the Commissioner/appropriate authority, free of cost he may be granted by the Commissioner Aswale 28/39
9.wp.12285.15.doc further Development Rights (DR) in the form of FSI equivalent to the area of the construction/development done by him, the utilisation of which, would be subject to the Regulations contained in the aforesaid Appendix.
35. When one reads the relevant provisions of the MRTP Act, 1966 along with the provisions of DCR, 1994, we find considerable force in the arguments canvassed by Mr. Dhakephalkar. As correctly submitted, the construction of a road would certainly fall within the definition of the word "Amenity" as defined in Section 2(2) of the MRTP Act, 1966. Further, Section 126(1)(b) itself contemplates that further additional FSI or TDR would be granted against development or construction of the amenity on the surrendered land provided the said amenity is constructed at the Petitioner's own cost. Keeping in consonance with the provisions of Section 126 of the MRTP Act, 1966, even Appendix-W (clause 6 thereof) of DCR, 1994 contemplates that where an owner also develops or constructs the amenity on the surrendered plot/land at his cost, he would be entitled to a further DR in the form of FSI equivalent to the area of the construction/ development done by him. This of course, would be subject to the Aswale 29/39
9.wp.12285.15.doc conditions set out in Clause 6 and utilization of which would be subject to the regulations contained in Appendix-W.
36. In the facts of the present case, it is not in dispute that originally the first DP Road was to be constructed by the Petitioner and was to be handed over to the Corporation before obtaining the Occupation Certificate for the residential project to be developed by the Petitioner. Thereafter, Respondent No.2 decided to construct the first DP Road themselves and hence by a letter dated 2nd March, 2002, Respondent No.2 informed the Architect of the Petitioner that the cost of construction of the first DP road amounted to Rs.31,81,670/- which amount would be deposited with Respondent No.2. It is not in dispute that this amount has been duly deposited by the Petitioner with Respondent No.2 for the construction of the first DP Road. Merely because Respondent No.2 has constructed the first DP Road on its own would not disentitle the Petitioner from claiming additional TDR for construction of the first DP Road as an amenity. This is for the simple reason that Section 126(1)(b) as well as Clause 6 of Appendix-W both contemplate that when an owner also develops or constructs the amenity on the Aswale 30/39
9.wp.12285.15.doc surrendered plot/land at his cost, he would be entitled to additional FSI or TDR. In the facts of the present case, even though the construction of the first DP Road was done by the Public Works Department of Respondent No.2, the same was admittedly done entirely at the cost of the Petitioner. This being the case, we are unable to accept the submission of Mr. Apte that since the road is developed by the Public Works Department of Respondent No.2, there is no provision in the DCR, 1994 for granting TDR towards the cost paid for construction of the said road. If we were to accept the submission made by Mr. Apte, the same would run counter to the direct provisions of Section 126 of the MRTP Act, 1966 as well as Clause 6 of Appendix-W of DCR, 1994. In deciding whether TDR ought to be granted or not, what is important to examine is who has paid for the development of the said amenity. This is why the legislature has advisedly used the words "at his cost" in section 126 of the MRTP Act, 1966 as well as in clause 6 of Appendix W to DCR, 1994.
37. As far as the circular dated 7th July, 2014 issued by the Municipal Commissioner inter alia stating that no application shall be entertained for TDR in lieu of any cost paid for Aswale 31/39
9.wp.12285.15.doc development of an amenity, we find that the same is of no assistance to the Respondent No.2 Corporation. We find that such a circular has absolutely no basis in law and in fact runs counter to the provisions of the MRTP Act, 1966 as well as clause 6 of Appendix-W of DCR, 1994. The Municipal Commissioner, by virtue of a circular, cannot deny the Petitioner's entitlement to TDR which they are otherwise entitled to under the provisions of the Parent Statute (MRTP Act, 1966) and the subordinate legislation (DCR, 1994). We, therefore, find that there is no justification in rejecting the Petitioner's application for grant of TDR on this count. We, therefore, have no hesitation in rejecting the first argument canvassed by Mr. Apte.
38. This now only leaves us to consider the second argument of Mr. Apte, namely, that under Regulation 47 of DCR, 1994 it was mandatory for the Petitioner to construct the approach road, and therefore, by virtue of Regulation 47, the Petitioner would not be entitled to any TDR either for the first DP Road or the second DP Road. For several reasons, we find that the reliance placed on Regulation 47 is wholly misplaced. In the facts of the present case, the DP Roads that are the subject matter of Aswale 32/39
9.wp.12285.15.doc the present Petition admittedly run through the Petitioner's land and the same are not access roads, as sought to be contended by Respondent No.2. In the present case, what the Petitioner has constructed and paid for is a DP Road which is used by the public at large and is not a private access road. This is also clear from the fact that once both the DP Roads were duly constructed the same were handed over to Respondent No.2 - Corporation and it has become the owner thereof. Even the reliance placed on the proviso to Regulation 47(2), in our opinion, is of no assistance to Respondent No.2. As mentioned earlier, the roads that are the subject matter of the present Petition are not access roads and/or alternate means of access but are the DP Roads which are within the property of the Petitioner and which are used by the public at large. It is not as if the DP Roads constructed by the Petitioner can be exclusively used by the Petitioner or residents of its residential development project. It is a DP Road and which was reserved in the development plan of the Thane Municipal Corporation.
39. Further, we also find considerable force in the argument of Mr. Dhakephalkar that even though the proviso to Aswale 33/39
9.wp.12285.15.doc Regulation 47 talks about an alternate means of access or construction of a partial DP Road, it does not contemplate that the same would be free of cost or without any compensation to the owners/developers. This is for the obvious reason that the obligation to construct the amenity under the MRTP Act, 1966 is that of the Planning Authority. If such obligation of the Planning Authority is discharged by a private individual, the Planning Authority is required to compensate the said individual for the same as clearly provided under Section 126 (1) (b) of the MRTP Act, 1966. The DCR, 1994 cannot provide for anything which is contrary to the Parent Act, namely the MRTP Act, 1966. In fact, when one reads the MRTP Act, 1966 harmoniously with DCR, 1994, this is the only interpretation that can be given to the proviso to Regulation 47(2).
40. In the view that we take we are supported by a decision of a Division Bench decision of this Court (to which one of us was a party, B. P. Colabawalla J) passed in the case of M/s. Siddhi Real Estate Developers (supra) [Writ Petition No. 7204 of 2016 decided on 15th March, 2019]. We must mention that though it is the case of Respondent No.2 that in the judgment Aswale 34/39
9.wp.12285.15.doc of this Court in the case of M/s. Siddhi Real Estate Developers (supra), there is no reference to Regulation 47, we find this to be factually incorrect. Firstly, in the judgment itself, we find that Respondent No.2 herein was Respondent No.2 in Writ Petition No. 7204 of 2016. This judgment specifically refers to Regulation 47 of DCR, 1994 in paragraph 11 thereof. After a detailed discussion, this decision considers Clause 6 of Appendix-W and thereafter gives its findings as under:-
21. Now, this condition, if juxtaposed with Appendix "W" and Regulation No.6, it will be apparent that the regulation refers to a situation where an owner or lessee also develops or constructs an amenity on the surrendered plot, at its cost, subject to such stipulations as may be prescribed by the authority, as the case may be, and to their satisfaction and hands over the said developed or constructed amenity to the Commissioner/appropriate authority, free of cost, he may be granted, by the Commissioner, further development rights in the form of FSI equivalent to the area of construction/development done by him, utilisation of which will be subject to the regulations contained in this Appendix. Thus, the development and construction of the amenity and which may include a road, at the cost of the owner or lessee, entitles him to claim this further development right. However, it is subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be. No stipulation prescribed by the Commissioner or appropriate authority has been referred in the impugned order/communication nor is it brought to our notice.
Similarly, we have nothing on record which would indicate that the Commissioner/appropriate authority was dissatisfied with the development or construction of the amenity. In fact, this is not a matter of dispute between the parties. It is undisputed that the amenity was surrendered and on surrendering that amenity, the development right certificate was issued. After that, the claim is for further development right in terms this regulation and that can be claimed upon development or construction of the amenity on the surrendered plot at the cost of the owner or lessee. How this right, as claimed, can be denied on the touchstone of Condition No. 12 is not clear to us at all. Condition No.12 deals with asphalting of road. A development or construction of a road and surrendering a road is a distinct matter Aswale 35/39
9.wp.12285.15.doc altogether. The cost of asphalting can never be claimed by the petitioner/ builder/ Developer in terms of this Condition No.12. When this asphalting is done at the cost of the owner/lessee, then, no compensation is payable and that is what Condition No.12 says. The asphalting should be done at the cost of the owner or lessee before applying for first commencement certificate of the layout or three months after monsoon is the condition. Properly understood, that has no connection with Regulation No.6. That is an independent right, which can be claimed. Merely because such a condition is imposed and which is accepted cannot, therefore, be a justification to deny this right.
22. It is evident from all the conditions contained in the sanction of development permission/ commencement certificate dated 7th June, 2010 that the development is permitted on certain conditions and that the permission will remain valid for a period of one year from the date of its issue. The permission does not entitle the petitioner to develop the land which does not vest in it. Then, the petitioner has to submit a certificate of structural engineer regarding design of structure and necessary stability certificate. It is obliged to display at site the information regarding obtaining occupation certificate. Before such a certificate is issued, no-objection certificates from several authorities should be obtained and the petitioner must provide for storm water drain and rainwater harvesting facility before applying for plinth certificate. All these conditions and seen in a proper perspective so also in the backdrop of the development permission, which is sought, would denote that the petitioners are entitled to develop the property provided they adhere to these conditions. Importantly, Condition No.11 says that the ownership of land under the development plan road and school reservation should be endorsed on record of rights of 7X12 extract before applying for plinth certificate. Thus, consistent with the prior condition, Condition No. 12 is inserted and in order to ensure that the developer/ builder develops the plot by providing basic amenities and facilities. He/she should also adhere to the requirement of providing storm water drain, water harvesting, the other safeguards and which would ensure that the structure is stable. Once the structure/ the building that is to come up to be termed as authorised or legal, these conditions have to be complied with. So long as these conditions are complied with, the development will be in terms of the law. These conditions, therefore, are traceable to the power conferred in the Planning Authority in terms of sections 44 and 45 of the MRTP Act. As far as the DCRs are concerned, they are traceable to the development plan itself and once a regulated development is the aim and object of the plan as also the enactment, then, consistent therewith, the DCRs contain these provisions. Thus, a balancing act is performed and so long as the land or a portion thereof, reserved or designated for Aswale 36/39
9.wp.12285.15.doc a public purpose in a development plan, is voluntarily surrendered, then, a benefit accrues for such surrendering of the land. The further benefit accrues if the amenity is developed by the developer at his own cost. This is how the right to develop one's own property vesting in the owner or other right claimed by the lessee is balanced with the requirement of the Planning Authority. It subserves larger public interest and we achieve a balanced and regulated so also controlled development."
(Emphasis supplied)
41. We, therefore, find that the reliance placed on Regulation 47 is wholly misplaced and does not carry the case of Respondent No.2 any further.
42. This now only leaves us to deal with the argument of Mr. Apte on the issue of delay. Firstly, we find that there is no inordinate delay as sought to be contended by Mr. Apte. As submitted by him, the rejection of the grant of TDR took place by Respondent No.2 for the first time vide its letter dated 18th November, 2014. The present Petition has been filed on 30th October, 2015. We do not think that this would amount to an inordinate delay disentitling the Petitioner to the relief, if it was otherwise entitled to the same. This is more so when one considers that this alleged delay has not caused any prejudice to Respondent No.2 or any other party. Even assuming that there is Aswale 37/39
9.wp.12285.15.doc any delay and the same not being inordinate, we agree with Mr. Dhakephalkar that the same cannot permit Respondent No.2 to expropriate the property of the Petitioner on this ground and nothing more. We, therefore, have no hesitation in rejecting the aforesaid argument.
43. In these circumstances, the Petition succeeds. Rule is accordingly made absolute in terms of prayer clauses (a) (b) and
(c) which read thus:-
"(a) that this Hon'ble Court be pleased to declare that the Petitioner is entitled to TDR in the form of FSI equivalent to the area of the D. P. Roads as respectively developed and paid for by the Petitioner.
(b) That this Hon'ble Court be pleased to issue a writ certiorari and/or any other writ, order or direction under Article 226 of the Constitution of India calling for the records and proceedings pertaining to the rejection of the Respondents to grant to the petitioner; TDR in the form of FSI equivalent to the area of the D. P. Roads as respectively developed and paid for by the Petitioner and after examining the validity or otherwise thereof the same be quashed and set aside.
(c) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other writ, order or direction under Article 226 of the Constitution of India in the nature of mandamus calling upon Respondents to grant in favour of the Petitioner, TDR in the form of FSI equivalent to the area of the D. P. Roads as respectively developed and paid for by the Petitioner."
44. We however make it clear that Respondent No. 2 shall grant TDR to the Petitioner in the form of FSI equivalent to the area of the aforesaid two DP Roads strictly in accordance with the Aswale 38/39
9.wp.12285.15.doc provisions of the MRTP Act, 1966 and Clause-6 of Appendix-W of the DCR, 1994. It is further clarified that utilization of the aforesaid TDR shall also be strictly in accordance with the Regulations in that regard. The Writ Petition is accordingly disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.
( B. P. COLABAWALLA, J. ) ( S. J. KATHAWALLA, J. ) Aswale 39/39