Bombay High Court
Municipal Corporation Of Greater ... vs B. J. Development Corporation Pvt. Ltd. ... on 14 March, 2024
Author: M.M. Sathaye
Bench: B. P. Colabawalla, M.M. Sathaye
2024:BHC-OS:4341-DB
WP-1928-2018 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1928 OF 2018
Municipal Corporation of Greater Mumbai )
A statutory body incorporated under the )
Mumbai Municipal Corporation Act, 1888 )
having office at BMC, H.O. Mahanagarpalika )
Marg, CST, Mumbai - 01 ) .... Petitioner
Versus
1. M/s. B. J. Development Corporation Pvt. Ltd. )
37, Marve Road, Malad (W), Mumbai-400064 )
2. The Collector, Mumbai Suburban, District )
Mumbai )
3. The Divisional Commissioner, Konkan Division )
CBD Belapur, Navi Mumbai )
4. The Sub-Divisional Officer (SDO) )
Western Suburb, Mumbai )
5. The Deputy Director, Town Planning and Land )
Valuation ) .... Respondents
Mr. Girish Godbole, Senior Advocate a/w. Mrs. R.M. Hajare i/b.
Sunil Sonawane, for Petitioner.
Mr. Pravin Samdani, Senior Counsel a/w. Mr. Nivit Srivastav,
Sneha Patil a/w. Amish S. Gandhi i/b. Maniar Srivastava
Associates, for Respondent No. 1.
Mr. A.L. Patki, Addl. G.P., for Respondent Nos. 2 to 5 (State).
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CORAM : B. P. COLABAWALLA
&
M.M. SATHAYE, JJ.
RESERVED ON : SEPTEMBER 13, 2023
PRONOUNCED ON : MARCH 14, 2024
JUDGMENT (Per M.M. SATHAYE, J.)
1. Rule. Mr. Godbole waives service for Respondent No. 1. Mr. Patki, Addl. G.P. waives service on behalf of Respondent Nos. 2 to 5. With the consent of the parties, Rule made returnable forthwith and heard finally.
2. In the above matter, arguments were concluded and we had reserved judgment on 13th September, 2023. However, during the course of dictating the judgment, we had certain doubts and queries and therefore, we had placed the matter in Chambers on 25 th January, 2024, when those queries were resolved by the respective counsel and it was recorded that the judgment shall be pronounced in due course.
3. By this Petition under Article 226 of the Constitution of India, the Petitioner (Municipal Corporation of Greater Mumbai) is challenging the Award dated 03.11.2017 passed by Respondent No. 2 (the Collector Mumbai Suburban, District Mumbai) in LAQ-717/13 Page 2 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc bearing No. SDO/Desk-3/ACQN/LAQ-SR-717/14. The Petitioner is praying for setting aside the said Award passed in favour of Respondent No. 1, who is the present owner of the subject matter property. A piece of land admeasuring 4711.40 sq. meters bearing CTS Nos. 69B/1/2, 69B/1/1(part) and & 69B/1/4(part) situated at Village Valnai, Taluka Borivali, Mumbai Suburban District, is the subject matter of this petition (for short the "subject land").
4. The facts relevant for deciding this case, are narrated below :
(i) In the year 1991, the subject land was reserved for a Recreational Ground which was part of a larger reservation. The original layout plan was submitted by the erstwhile owner of the subject land (M/s. Adarsh Dugdhalay) which was approved in the year 1975, and amended in 1983.
(ii) After Development Control Regulations, 1991 came into force, the plans were amended on 05/05/2008 and the then owner gave an undertaking and agreed to convey the land falling under DP Reservation within the layout and to hand over the same to the Petitioner.
(iii) In 2012, the present Respondent No. 1 purchased the subject land under a registered Sale Deed from the erstwhile owner.Page 3 of 28
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(iv) After purchase, on 17/09/2012, Notice U/s. 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short "MRTP Act") was issued by Respondent No. 1 to the Petitioner.
(v) Accordingly, on 03/08/2013, the Petitioner addressed a letter to Respondent No. 2 - Collector and requested to initiate acquisition proceedings of the subject land.
(vi) On 07/09/2013, a Notification U/s. 126(4) of the MRTP Act r/w. Section 6 of the Land Acquisition Act, 1894 was issued.
(vii) Before the acquisition could be completed, on 01.01.2014, the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (for short, "the 2013 Act") came into force.
(viii) On 14/08/2015, the Petitioner deposited an amount of Rs.17,47,74,960/- with Respondent No. 4 SDO, as per the directions of the Respondent No. 2 - Collector.
(ix) In February 2016, a joint measurement was carried out and the area under acquisition was found to be 4711.40 sq. meters and accordingly, a corrigendum to the Notification was issued on 8th February 2017, for the corrected area.
(x) On 03/11/2017, Respondent 4 / the SDO passed
the impugned Award fixing compensation at
Rs. 31,93,26,175/-.
(xi) On 07/03/2018, a reference being LAR No. 3 of 2018 was
filed in this Court by the Special Land Acquisition Officer at Page 4 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc the request of Respondent No. 1 seeking enhancement.
(xii) In April 2018, the present Petition was filed by the Petitioner, challenging the impugned Award.
(xiii) On 15/02/2019, this Court dismissed the present Petition confirming the Award after hearing both sides, by a reasoned Order.
(xiv) Being aggrieved by the order dated 15/02/2019, the Petitioner-Municipal Corporation filed SLP (C) No. 11828 to 2019 [which was subsequently numbered as Civil Appeal No. 2336 of 2023] before the Hon'ble Supreme Court.
(xv) On 30/04/2019, this Court permitted Respondent No. 1 to withdraw the amount deposited by the Petitioner- Municipal Corporation in the pending LAR.
(xvi) After hearing the parties, the Hon'ble Supreme Court, vide its Order dated 28/03/2023, remanded the matter to this Court for a decision on two specific aspects. The operative part of the said order reads thus:
"29) We remit the matter back only for determining the following two aspects.
(1) The contention of the appellant that the value cannot be derived on the basis of comparison with land which has been built upon.
(2) The impact of the alleged use of the property in the context of the benefit of increased FSI, the alleged nexus between the increased FSI and use of the part of the property in dispute for the same (RG plot).
30) We make it clear that this is the limited scope for the remand.
We request the High Court to take up both this matter and also the reference matter (claim for enhancement).
31) The appeal is partly allowed. The impugned judgment is set aside. We request the High Court to dispose of these matters as Page 5 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc early as possible, preferably within a period of four months."
5. As can be seen from the order of the Hon'ble Supreme Court, that the scope of the present Petition is limited. The learned senior counsel, Mr. Godbole, appearing for the Petitioner-Municipal Corporation has urged that in view of bar U/s. 50 of the Land Acquisition Act, 1894 (for short "the 1894 Act"), as stated in its proviso, the Petitioner being the local authority, is not entitled to demand a reference U/s. 18 of the 1894 Act and therefore, requested this Court (Division Bench hearing challenge to the Award) to go into the issue of quantum also. We are afraid that we will not be able to accede to this request completely, for reasons indicated below.
SUBMISSIONS ON 1ST ASPECT
6. So far as the first aspect is concerned, it is pointed out by Mr. Godbole, learned senior counsel appearing for the Petitioner - Municipal Corporation that in the present case sale instances of only 'flats' around the subject land are considered, because no sale instances of similar open land are available. It is submitted that the exercise of reverse calculation adopted in the Award is based on completely distinct and different immovable property (flats) as compared to the subject matter land, which is an open piece of land. He submitted that this is Page 6 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc against the scheme of section 26 of the 2013 Act. He submitted that the authority ought to have proceeded to determine valuation on the basis of the Ready Recknor method because admittedly no sale instances of comparable land parcels are available. In support of this submission, he relied upon the following judgments.
i. Printers House Pvt. Ltd. V. Mst. Saiyadan (Deceased) By LRS and Ors. (1994) 2 SCC 133.
ii. Chandrashekar (Dead) By LRS and Ors. V. Land Acquisition Officer and Anr. (2012) 1 SCC 390. iii. Viluben Jhalejar Contractor (Dead) by LRS V. State of Gujarat (2005) 4 SCC 789.
Relying on these judgments, it is submitted that comparable sale instances have to be identified having regard to the proximity to the time angle and the situation angle. Also it must be found out what is the nature of the land which is the subject matter and what is the nature of the sale instances and whether they are comparable. It is submitted that the Ready Recknor method ought to have been adopted for arriving at land value, and sale instances of dissimilar properties (flats) could not have been adopted. He submitted that it is hazardous to follow the sale instance method in this case, because the cost of a flat can be affected by several uncertain factors including market conditions, demand and Page 7 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc supply situations, inflationary and recessionary trends in the economy, and hence such method for valuation is impermissible.
7. Per contra, Mr. Samdani, senior counsel for Respondent No. 1 (present owner of the subject land), submitted that there is no bar in placing reliance on the sale instance of flat or 'land which is built upon' for determination of the compensation in respect of vacant land and the only thing that is required to be borne in mind is the deduction and discount to be applied. For this submission, he relied upon the judgment of Sabhia Mohammed Yusuf Abdul Hamid Mulla (Dead) By LRS. And Ors. V. Special Land Acquisition Officer and Ors. (2012) 7 SCC 595 [paragraps 16 to 19]. thereof. Mr. Samdani, emphasizing on paragraph 26 of the Hon'ble Supreme Court's order dt. 28.03.2023 (under which the matter is remanded), submitted that the Hon'ble Supreme Court has made the present exercise of re-hearing, subject to judgments of the Hon'ble Supreme Court limiting the jurisdiction of the High Court in the matters like these viz. involving challenge to the land acquisition Awards. He submitted that the jurisdiction of this court for assailing an Award is circumscribed by catena of judgments of the Hon'ble Supreme Court itself where it is held that it is only on a limited aspect, where no notice is given, or no opportunity to adduce evidence is given, or when Award is vitiated by malafides, perversity or fraud, that Page 8 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc interference in writ jurisdiction is called for. In support of this submission, he relied upon the following judgments.
i. U.P. Awas Evam Vikas Parishad V. Gyan Devi (Dead) by LRS and Ors. (1995) 2 SCC 326.
ii. Santosh Kumar and Ors. V. Central Warehousing Corporation and Anr. (1986) 2 SCC 343.
iii. Neyvely Lignite Corporation Ltd. V. Special Tahsildar (Land Acquisition) Neyvely and Ors. (1995) 1 SCC 221. iv. Satish Kumar Gupta & Ors. V. State of Haryana and Ors.
(2017) 4 SCC 760.
REASONS AND CONCLUSION ON 1ST APSECT
8. We have carefully considered the submissions and the judgments relied upon by both the sides. Admittedly, in the present case, the award is passed adopting the sale instance comparison method and not the ready-recknor method. The moot question is whether in a situation like this, where the land acquired is an open piece of land reserved for a recreational ground, sale instances of constructed flats can be taken into consideration for calculating the market value of the subject land ? It must be noted here that admittedly in the present case, there are no sale instances available of similar or same land (open land). In such a situation, we do not think that sale instances of 'flats' cannot be considered at all. We say so for the following reasons. Page 9 of 28
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9. Let us consider various judgments relied upon by the Petitioner - Municipal Corporation. In the case of Printers House Pvt. Ltd case (supra), the Hon'ble Supreme Court has considered the situation where acquired plot of lands belonged to different persons and did not have similar features and it was held that they should not be treated as a single unit for awarding a uniform rate. Various factors necessary to be considered in applying comparable sale method were discussed and it was held that the price reflected in the sale pertaining to the land closest to the acquired land in features, should form the basis and not the average price reflected. In Chandrashekar (Dead) By LRS case (supra), various heads for applying appropriate deductions were considered and it was held that upper limit of permissible deduction is 75%. In this judgment, deduction under the head of development was also considered by the Hon'ble Supreme Court. In this case, the Hon'ble Supreme Court has also considered how to determine the market value of a large tract of undeveloped acquired land and how deductions are to be applied. Para 27 of the said judgment indicates that even comparison between undeveloped, partially developed, substantially developed or fully developed land and sale instances of developed land (built up) is permissible and the only relevant factor would be applying the appropriate percentage of deduction necessary to balance the Page 10 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc differential factors between sale instances and acquired land. Para 27 of the said Judgment reads thus :
27. "Before applying deductions for ascertaining the market value of the undeveloped acquired land, it would be necessary to classify the nature of the exemplar land, as also, the acquired land. This would constitute the second step in the process of determination of the correct quantum of deductions.
The lands under reference may be totally undeveloped, partially developed, substantially developed or fully developed. In arriving at an appropriate classification of the nature of the lands which are to be compared, reference may be made to the developmental activities referred to by us in connection with the "first component", as also, the "second component" (in paras 19 to 22 above). The presence (or absence) of one or more of the components of development, would lead to an appropriate classification of the exemplar land, and the acquired land. Comparison of the classifications thus arrived, would depict the difference in terms of development, between the exemplar land and the acquired land. This exercise would lead to the final step. In the final step, the absence and presence of developmental components, based on such comparison, would constitute the basis for arriving at an appropriate percentage of deduction, necessary to balance the differential factors between the exemplar land and the acquired land".
[Emphasis Supplied] In the judgment of Viluben Jhalejar Contractor (supra) the Hon'ble Supreme Court considered principles for determination of market value and the relevant positive and negative factors to be considered in the comparable sale instances method. In this judgment, the Hon'ble Supreme Court opined that the proximity from the time Page 11 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc angle and the situation angle can be considered and suitable adjustment can be made having regard to various positive and negative factors.
10. In none of these judgments of the Hon'ble Supreme Court, relied upon by the Petitioner - Municipal Corporation, we find any bar from applying the comparable sale instance method between an open piece of land and a constructed one, especially when only sale instances of developed or built up lands are available. In this context, the case of Sabhia Mohammed Yusuf (supra), relied upon by the owner assumes importance wherein, the Hon'ble Supreme Court has clearly held in para 19 that in fixing market value of the acquired land which is undeveloped or underdeveloped, the Courts have generally approved certain deductions towards development cost.
11. Having found so, we hold that there is no merit in the contention of the Petitioner - Municipal Corporation that the market value of the present subject land cannot be arrived at on the basis of comparison of sale instances of flats or lands which are built upon.
12. As far as the Reference filed under section 18 of the 1894 Act by the owner ( Respondent No. 1) is concerned, we are of the view that the same is a matter purely touching the question of quantum payable Page 12 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc under the Award and will be the subject matter of the pending land reference in this Court which is being heard by the single Judge under the applicable procedural rules and not by us i.e. Division Bench. We note here that the dispute about quantum of compensation is already statutorily pending under section 18 of the 1894 Act under the Land Reference (L.A.R. No. 3 of 2018) on the Original Side of this Court before the learned single Judge which is filed by Respondent No. 1 (owner). Since the Bombay High Court Original Side Rules provide that such land reference has to be heard by Single Judge of this Court, we do not propose to usurp that jurisdiction. We say so also because if we comment upon anything on the quantum of the Award, it will prejudicially affect not only the rights and contentions of both the parties but it may affect the jurisdictional scope of the learned single Judge. There is also another important aspect why we have declined to hear the land reference. If the land reference is heard by the learned Single Judge before whom it is pending, the aggrieved party has a statutory right of appeal before Division Bench of this Court. If we were to usurp the jurisdiction of the learned Single Judge and hear the land reference ourselves, we would be denying either party of their statutory right of appeal. We do not want such a situation to arise. Hence, we have Page 13 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc not heard the land reference pending before the learned Single Judge, namely, LAR No. 3 of 2018.
SUBMISSIONS ON 2ND ASPECT
13. Now we turn to the second aspect / issue framed by the Hon'ble Supreme Court. Mr. Godbole, the learned senior counsel appearing for the Petitioner-Municipal Corporation submitted that the Special Land Acquisition Officer (SLAO) has erroneously calculated the compensation based on 4711.40 sq. meters. because while submitting a layout plan for approval of the larger piece of land (purchased by Respondent No. 1 from the erstwhile owner) admeasuring 22657.60 sq. meters, the area shown for Recreational Ground under DP-reservation was only 4394.82 sq. meters. (hereinafter referred to as "DPRG" for brevity's sake). He submitted that therefore obviously the balance area is used for development purposes including FSI calculation. He submitted that however, on actual measurement, the area of DPRG is found to be 4711.40 sq meters and therefore Respondent No. 1 is not entitled for any compensation so far as the differential area of 316.589 sq. meters (4711.40 - 4394.82) is concerned, because the predecessor of Respondent No. 1 has obviously already used this area in the layout plan. He submitted that since the owner has already utilized the Page 14 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc differential area of 316.58 sq. meters for FSI, the said area cannot be considered again for calculation of the compensation. He submitted that while determining the valuation of the acquired land [for payment of compensation], the fact of FSI benefit already used, must be considered and accordingly the compensation has to be reduced and/or the impugned Award has to be held bad to that extent. He submitted that permitting the land owner to take benefit of utilization of FSI as well as getting monetary compensation for the same portion of differential area, will be contrary to provisions of the MRTP Act, applicable Development Control Regulations and also the 2013 Act, because it would amount to double enrichment.
14. Mr. Godbole, the learned senior counsel for the Petitioner- Municipal Corporation, also submitted as his next argument, that while obtaining the sanction, the land owner was required to maintain 25% layout recreation ground (for short Layout-RG) under the applicable DC Regulations. However, while sanctioning the plan, the Municipal Corporation has incorrectly proceeded to sanction the plan on the basis that the land owner was required to maintain only 15% Layout for RG. He submitted that the total plot area is 22657.60 sq. meters, out of which the land under reservation for DP road is 374.15 sq. meters and the DPRG is 4394.82 sq. meters, leaving behind balance plot area of Page 15 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc 17888.63 sq. meters. He submitted that 10% of this area will be 1788.86 sq. meters. He submitted that as per DC Regulation No. 23(1)(a), 25% of the layout area was required to be kept as layout RG. However, in the present case only 15% area is kept as layout RG and therefore, 10% less area is maintained as open space / layout RG and therefore, this 10% deficit area of 1788.86 sq. meters must also be reduced from consideration while computing the compensation amount and the impugned Award must held as bad to this extent also. He submitted that on this count also, the principle of double enrichment would apply.
15. To sum up, it is the argument of the Petitioner-Municipal Corporation that both these areas, the differential area of 316.58 sq. meters as well as the deficit area of 1788.86 sq. meters should not be considered for the calculation of compensation and to that extent the Award is bad in law.
16. Per contra, Mr. Samdani, the learned senior counsel appearing on behalf of Respondent No. 1 submitted that admittedly the area of the subject land (which is actually acquired as per the joint measurement) is 4711.40 sq. meters and in fact a revised notification/corrigendum was also issued for this increase in area under acquisition. He further submitted that according to the Petitioner's own Page 16 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc valuation, the compensation should be calculated @ Rs.46,300/-, per sq. meters which can be seen from the recitals of the Award itself. If that be so, the rate determined by SLAO, which is lesser than said valuation, cannot be faulted. He further submitted that admittedly in the present case, the subject land under acquisition is a well-defined property enclosed by a compound wall and the compound wall existed since prior to the acquisition. Thus, there is no question of 'land under acquisition' encroaching upon the 'land under development' in the layout. He submitted that it is therefore obvious that the land which was considered for sanction of layout was distinct from the land under acquisition, which was and is, enclosed by a compound wall. He submitted that therefore the argument of the Petitioner that the differential area of 316.58 sq. meters is already utilized for FSI benefit, holds no substance. Referring to para 26 of the Order of the Hon'ble Supreme Court dated 28th March, 2023, Mr Samdani reiterated that while remanding the matter, the Hon'ble Supreme Court itself has clarified that the jurisdiction of this Court to hear the present challenge, is subject to the judgments of the Hon'ble Supreme Court about limiting the jurisdiction while considering the challenge to the Award under Article 226 of the Constitution of India. He submitted that the jurisdiction of this Court for assailing an Award is circumscribed by Page 17 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc various earlier decisions of the Hon'ble Supreme Court where it is held that only on a limited aspect as to where no notice is given or opportunity to adduce evidence is not given or that the Award is vitiated by mala fides, perversity or fraud etc., then interference is permitted. He relied upon the judgments already mentioned above, in support of his submissions.
17. Mr. Samdani further submitted that the argument about the requirement under applicable DC Regulations of physically keeping 25% Layout RG, has absolutely no force, for the simple reason that even in that case the FSI benefits applicable under the DC Regulations will not change because, out of 25% Layout RG, only 15% of the area will be excluded while calculating FSI.
18. Mr. Samdani further submitted that the present land acquisition is u/s. 126(1)(c) of the MRTP Act whereunder, the provisions of the 2013 Act is applicable for the purpose of calculation. He submitted that the present acquisition is not u/s. 126(1)(b) of the MRTP Act where the compensation is in the form of FSI/TDR. He submitted that what is indirectly being argued by the Petitioner-Municipal Corporation is a discount for an alleged illegality on account of the alleged utilization of FSI. He submitted that under the scheme of the Page 18 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc MRPT Act, a combination of two types of compensation [u/s. 126(1)(b) and 126(1)(c)] is not contemplated, nor it is permissible. He submitted that u/s. 126(1)(c) of the MRTP Act, it is a compulsory acquisition which is the present case.
19. Mr. Samdani further submitted that in any event, while deciding the present matter, it will have to be borne in mind that the area acquired was physically measured and it was and is enclosed by a compound wall on all sides and it is not the Petitioner's case that after taking over possession of the acquired land, the area of remaining land is reduced by 316.58 sq. meters. Therefore, he submitted that the argument of the Petitioner on the basis of differential area of 316.58. sq. meters must fail.
20. Mr. Samdani further submitted that in the present case, the Petitioner, wearing one hat of the acquiring body, is trying to find fault with the Award, pointing out fault of itself wearing the hat of the planning authority. He submitted that the Petitioner cannot be permitted to do so. He submitted that the layout plan sanctioned at the instance of the erstwhile owner was sanctioned by the Petitioner itself wearing the hat of planning authority. If that be so, the Petitioner, today wearing the hat of acquiring body, cannot turn around and say that the Page 19 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc plan sanctioned by the Petitioner itself as planning authority is not correctly sanctioned. Therefore, according to Mr. Samdani, even the second argument of Mr. Godbole holds no merit and it must be rejected.
REASONS AND CONCLUSION ON 2ND APSECT
21. We have carefully considered the submissions of both sides. At the outset, it is important to note that the Petitioner has filed the present petition in its capacity as an acquiring body and not as a planning authority. It is common ground before us that the layout plan sanctioned at the instance of the erstwhile owner, and which was sanctioned by the Petitioner acting as planning authority, is not challenged by any of the parties. It is not brought to our notice that the sanction granted to the said layout is revoked either. If that be so, then even assuming that the Petitioner as a planning authority has permitted the owner to load FSI on some additional area (viz. differential area of 316.58 sq. meters), such consideration of additional area for the purpose of FSI cannot be called in question by the Petitioner acting as an acquiring body. The Petitioner itself has acted in both the capacities, as a planning authority as well as an acquiring body. We fail to understand how the Petitioner can argue on the basis of its own fault to have a detrimental effect on the compensation payable to the owner of the Page 20 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc acquired land. The law in respect of compulsory land acquisition is exproprietary in nature. When the land of a citizen is acquired compulsorily, Article 300A of the Constitution of India provides that a citizen cannot be divested of his ownership in the property except by authority of law, which in the present case, is both under MRTP Act and the 2013 Act. The Petitioner, acting as the planning authority, has sanctioned the layout giving FSI benefit to the Petitioner considering the area of the land submitted for development. If the land acquired was always enclosed by a boundary wall and which fact is not at all disputed by the Petitioner-Municipal Corporation, we fail to understand how and in what manner, an increase in the area under acquisition from 4394.82 to 4711.40 sq. meters, will affect the consideration of FSI. In other words, the Petitioner's argument about differential area 316.58 sq. meters being considered twice (at the time of loading FSI as well as at the time of calculation of compensation) is an argument in abstract, in as much as the land submitted for development was always separate and distinct from the land acquired. When the layout sanctioned by the Petitioner itself acting as planning authority remains without any challenge, the argument about differential area of 316.58 sq. meters being considered twice is devoid of any merits. Even otherwise, nothing has been brought on record by the Petitioner - Municipal Corporation to Page 21 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc establish that FSI for the differential area of 316.58 sq meters was used by the erstwhile owner on the land that is already developed. On this ground also, we find no merit in the argument canvassed by Mr. Godbole.
22. The next argument of the Petitioner is based on requirement to keep aside 25% layout RG under Regulation No. 23(1)(a) of the applicable DC Regulations. For the purpose of clarity, it is necessary to consider the applicable Regulation Nos. 23(1)(a) and 35, which are reproduced below for ready reference:
"23. Recreational/Amenity Open Spaces:-
(1) Open spaces in residential and commercial layouts-
(a) Extent- In any layout or sub-division of vacant land in a residential and commercial zone, open spaces shall be provided as under:
(I) Area from 1001 SQ.M. to 2500 SQ.M. 15 per cent (II) Area from 2501 SQ.M. to 10,000 SQ.M. 20 per cent (III) Area above 10,000 SQ.M. 25 per cent These open spaces shall be exclusive of areas of access/ internal roads/ designations or reservations, development plan roads and areas for road-widening and shall as far as possible be provided in one place. Where however, the area of the layout or sub-division is more than 5000 sq. m., open spaces may be provided in more than one place, but at least one of such places shall not be less than 100 sq. m. in size. Such recreational spaces will not be necessary in the case of land used for educational institutions with attached independent playgrounds.
Admissibility of FSI shall be as indicated in Regulation 35.
35. Floor Space Index Computation-
(1) Floor Space Index/ Built-up calculations- The total area of a plot shall be reckoned in floor space index/built-up area calculations Page 22 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc applicable only to new development to be undertaken hereafter as under:-
Plot size in sq. m. Area in sq. m. for FSI Computation (1) (2) Residential and Commercial Zones (1) Upto 1000 sq.m. Total area (2) 1001 to 2500 sq.m. Total area subject to a maximum of 2125 sq.m.
(3) 2501 to 10,000 sq.m. Total area excluding 15 per cent of the area for recreational/ amenity open space vide item
(ii) in clause (a) of sub-Regulation (1) of Regulation 23.
(4) Above 10,000 sq.m. Total area excluding 15 per cent of the area for recreational space under item (iii) of clause (a) of sub-regulation (1) of Regulations 23.
However, the area for FSI computation shall be 90% of net area (after deducting amenity area) in case of change of Industrial user to Residential User in the suburban area of Greater Mumbai as specified in Regulation 56(3)(c)(ii) and 57(4)(c)(ii) (5) Area of the Total area subject to following conditions:-
amalgamated plots (2 or 1) This is applicable only in case of plots more) is more than 2125 sq. where total area of amalgamated plots is not mt. exceeding 10000 sq.mt.
2) That the amalgamation is proposed after the DCR 1991 have come into force.
3) That no single plot in the amalgamated plot is larger in size than 2125 sq. mt. and further no individual plot shall have area more than 50% of the total amalgamated area.
4) A new and separate property card shall be produced in respect of amalgamated plots.
5) At least 15% Recreation Ground shall be kept open to sky and shall be developed as recreation Ground by plantation of trees.
6) All other provisions of D.C. Regulations shall be followed while allowing development of such amalgamated plots.Page 23 of 28
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7) If the amalgamated plot is developed by taking advantage of these Regulations at no time in future any sub-division would be allowed.
Industrial Zones.
Industrial Plots- Total area subject to maximum of 900 sq.m. (1)Upto 1000 sq.m.
(1) More than 1000 Total area excluding 10 per cent out of the sq.m...... area for recreational/ amenity open space vide clause (a) of sub- Regulations of Regulations 23. Industrial Layouts-
(1) Plots of 8000 sq.m. or Total area excluding area of construction more permissible in open space over 1500 sq.m.
according to clauses (a) and (b) of sub-
Regulation (2) of Regulations 23 and excluding 10 per cent out of the area for recreation/ amenity open space vide clause (a) of sub-Regulation (2) of Regulation 23.
* * * *"
(Emphasis supplied.)
23. On a plain reading of the aforesaid two regulations, it is clear that even if there is requirement to maintain/ keep 25% Layout RG space while sanctioning the layout plan, for the purpose of FSI calculation, only 15% area reduction is provided. It is not in dispute that while sanctioning the layout plan in present case, only 15% area reduction is applied and not more. Therefore, whether 25% Layout RG space is physically kept or not is immaterial. Therefore, this argument of Page 24 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc double enrichment due to 1788. 86 sq meters deficit area, is thoroughly misconceived and deserves to be rejected.
24. There is one more reason for rejecting the arguments of the Petitioner based on FSI utilisation and double enrichment. As rightly pointed by Mr. Samdani, on carefully reading Section 126 of the MRTP Act as well as the scheme of compensation, as contemplated under sub-
section 1(a), 1(b) & 1(c) thereof, we find that the modes of compensation provided thereunder are distinct and separate. Plain reading of Section 126 of the MRTP Act and the provisions of sub-sections (1)(a), (1)(b) & (1)(c) thereof, indicates that they are separated by the word "or" and is therefore clearly disjunctive. They are either by agreement or by transfer of FSI/TDR equivalent to the value of owner's interest or by following process of law under 2013 Act.
25. The argument about the differential area of 316.58 sq. meters or deficit area of 1788.86 being considered twice, is clearly an argument suggesting that because some area is considered for grant of FSI u/s. 126(1)(b) of the MRTP Act, the same should not be considered for consideration u/s. 126(1)(c).
26. There is no manner of doubt that the subject matter of the acquisition in this case is an acquisition by following process u/s. 126(1) Page 25 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc
(c). After following the procedure under the MRTP Act and 2013 Act, necessary notifications were issued and the compensation was calculated and the Award was passed. We do not think it possible to mix the modes of compensation as contemplated U/s. 126(1)(b) & 126(1)(c) for holding the Award itself as bad. We do not agree that the consideration under Section 126(1)(b) & 126(1)(c) can be mixed at least in the peculiar facts of this case.
27. We are aware of the specific direction given by Hon'ble Supreme Court in para 26 of its Order dated 28.03.2023. The Hon'ble Supreme Court has clearly stated that while exercising our jurisdiction under Article 226 of the Constitution of India in a challenge to the award in land acquisition, we will have to consider the decisions of the Hon'ble Supreme Court which specifically delineate or limit our jurisdiction in matters of this nature. In this regard, the reliance is placed by Mr. Samdani upon the judgment of Santosh Kumar V. Centre Warehousing Corporation (supra) is well founded. In this decision, the Hon'ble Supreme Court has clearly stated in para 4 that 'there cannot be any possible doubt that scheme of the Act is that apart from fraud, corruption or collusion, the amount of compensation may not be questioned in any proceedings by the local authority at whose instance Page 26 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 ::: WP-1928-2018 (J).doc the acquisition is made. The Hon'ble Supreme Court has further clarified that owing to sections 50(2) and 25 of the Land Acquisition Act, 1894 such conclusion is inevitable. The Hon'ble Supreme Court has further held that 'what may not be done under the provisions of Act may not be permitted to be done by invoking jurisdiction of High Court under Article 226, which is not meant to avoid or circumvent the procedure of law and the provisions of statute'.
28. We find that the Hon'ble Supreme Court, in its judgment of Satish Kumar Gupta V. State of Haryana (supra), has once again reiterated this position by making a reference to Santosh Kumar (supra), namely, that the Award of the Collector could not be challenged by the local authority in a writ petition, except on the ground of fraud, corruption or collusion.
29. In the present petition, admittedly there is no ground of fraud, corruption or collusion alleged or even remotely suggested. In that view of the matter, we do not find the facts of this case appropriate to exercise our extraordinary writ jurisdiction under Article 226 of the Constitution of India.
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30. For all these reasons, the petition is devoid of merits and the same is dismissed accordingly. Rule is discharged. No order as to cost.
31. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned to act on digitally signed copy of this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.] Page 28 of 28 MARCH 14, 2024 Husen ::: Uploaded on - 14/03/2024 ::: Downloaded on - 15/03/2024 09:48:34 :::