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Showing contexts for: Access road in M/S. Siddhi Real Estate Developers vs State Of Maharashtra And Anr on 3 July, 2020Matching Fragments
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
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
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.
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.