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1. Whether the provisions of the impugned amendment to the Development Control Regulations of Greater Mumbai, 1991 ("DCR"), in pith and substance amount to compulsory acquisition?
2. Whether the provisions of the impugned amendment to the DCR are ultra vires the Maharashtra Regional Town Planning Act, 1966 ("MRTP Act")?
3. Whether the provisions of the impugned amendment to the DCR are violative of Articles 14, 19(1)(g) and 300A of the Constitution of India?

29 It was also contended by the Petitioner that the impugned notification is violative of Article 19(1)(g) and 300-A of the Constitution of India. It is submitted that restriction on the land owner's, right to develop and construct on his land is ex facie arbitrary and constitutes an unreasonable restriction on the Petitioner's right under Article 19(1)(g) of the Constitution of India. In support, reliance is placed upon the decision of the Supreme Court in Chairman Indore Vikas Pradhikaran v/s. Pure Industrial Coke & Chemicals Ltd. 2007(8) SCC 705- wherein it has been observed that the right to property is not only a constitutional right but a human right. The Court held that even though a right to property had ceased to be a fundamental rights, yet it exists as a legal right and no person can be deprived of the same, except in accordance with law as provided in Article 300-A of the Constitution of India. The learned Advocate General opposed the contention and stated that the MRTP Act and the DCR 1991 constitute law. Thus, there is no violation of Article 300A of the Constitution of India.

30 It is undisputed that the denial of the right to property through an exproprietary legislation must be given strict construction. The Supreme Court in Jilibhai N. Khachar v/s. State of Gujarat 1995 Suppl. 

    S.R.JOSHI                                                                                 26 of 29





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(1) SCC 596 has considered the scope of Article 300A of the Constitution and observed that the deprivation of property rights in view of Article 300-A of the Constitution of India can only be with the sanction/ in accordance with the law. In other words, Article 300A only limits the power of the State by providing that no person shall be deprived of its property save by authority of law. There has to be deprivation without sanction of the law for successfully invoking the safeguard provided in Article 300A of the Constitution of India. Further, the Court observed that the law may provide an amount or fix the manner in which the amount of compensation is to determined. It is a settled that such a law cannot be questioned on the ground that the amount fixed is not adequate unless of course it is illusory. In this case, the land is being taken under the provisions of the MRTP Act and the DCR 1991. Thus, the State is acting with the sanction of law. Therefore, no issue on the above ground of challenge can arise. Besides, the Petitioners are being given compensation in the form of FSI or in the form of construction cost as per the ready reckoner. The compensation in both the above forms is not illusory. The land owner can exploit the land to the fullest extent by virtue of receiving FSI attributable to the 20% of the land which is taken over for the Economically Weaker Section of the Society. The cost of the construction is also paid at the ready reckoner rates where the land owner builds tenements and gives it to the MHADA. In fact, the Supreme Court in Godrej Boyce Manufacturing Company Ltd (supra) has accepted that grant of FSI is valid form of compensation for a person who surrenders a plot of land free of cost to the Municipal Authorities. In view of the above, we do not find that the Petitioner is being deprived of it properties without authority of law under Article 300-A of the Constitution of India.