Supreme Court of India
Kukreja Construction Company vs The State Of Maharashtra on 13 September, 2024
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
2024 INSC 692
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9702 OF 2024
KUKREJA CONSTRUCTION COMPANY
& OTHERS … APPELLANTS
VERSUS
STATE OF MAHARASHTRA & OTHERS … RESPONDENTS
WITH
CIVIL APPEAL NO.9703 OF 2024
CIVIL APPEAL NO.9704 OF 2024
CIVIL APPEAL NO.9705 OF 2024
CIVIL APPEAL NO.9706 OF 2024
CIVIL APPEAL NO.9707 OF 2024
CIVIL APPEAL NO.9708 OF 2024
CIVIL APPEAL NO.9709 OF 2024
CIVIL APPEAL NO.9710 OF 2024
CIVIL APPEAL NO.9711 OF 2024
CIVIL APPEAL NO.9712 OF 2024
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2024.09.13
15:47:44 IST
Reason:
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JUDGMENT
NAGARATHNA, J.
These appeals have been filed against three impugned
judgments and orders of the High Court of Judicature at
Bombay, namely,
i) Judgment dated 18.12.2018 whereby Writ Petition Nos.
1898/2009, 1823/2012, 839/2015, 2871/2015,
2107/2016, 2170/2016, 384/2017 and 541/2017 were
rejected on the ground of delay and laches and the writ
petitioners therein/appellants herein have filed an appeal.
Writ Petition Nos. 203/2014 and 2262/2010 were allowed
and Writ Petition No.1860/2017 was partly allowed.
As against Writ Petition No.203/2014, Municipal
Corporation of Greater Mumbai (hereinafter referred as
“Mumbai Municipal Corporation”) has filed Civil Appeal
No.9708/2024 arising out of Special Leave Petition (Civil)
No.13365/2019. However, as against orders in Writ Petition
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No.2262/2010 and 1860/2017, there are no Special Leave
Petitions filed by the Mumbai Municipal Corporation;
ii) Judgment and Order dated 18.10.2019/08.11.2019
whereby Writ Petition No.2531/2009 was allowed and the
Mumbai Municipal Corporation has filed Civil Appeal
No.9711/2024 arising out of Special Leave Petition (Civil)
No.10430 of 2020;
iii) Judgment dated 20.10.2022 whereby Writ Petition
No.411/2013 was allowed and the Mumbai Municipal
Corporation has filed Civil Appeal No.9712/2024 arising
out of Special Leave Petition (Civil) No.606 of 2023.
1.1 Thus, there are sets of judgments and orders of the
Bombay High Court which have been considered together owing
to their similarity.
1.2 The High Court considered the writ petitions on the issue
concerning the implementation of the decision of this Court in
Godrej & Boyce Manufacturing Company Limited vs. State
of Maharashtra, (2009) 5 SCC 24 (“Godrej & Boyce I”). The
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said decision dealt with Regulation 34 read with Para 6 of
Appendix-VII to the Development Control Regulations for
Greater Bombay, 1991 (“the DCR” for short).
Relevant facts:
2. With regard to the order dated 18.12.2018, the writ
petitioners before the High Court (appellants herein) were
holding plots of land shown as reserved in the sanctioned
development plan under the provisions of the Maharashtra
Regional and Town Planning Act, 1966 (“MRTP Act” for short)
which were reserved for Development Plan Road (“DP Road” for
short). According to the writ petitioners, they constructed DP
Roads at their own cost and voluntarily surrendered the
reserved lands to the Mumbai Municipal Corporation. In lieu
thereof, in terms of clause (b) of sub-section (1) of Section 126
of the MRTP Act read with Regulations 33 and 34 as well as
Para 5 of Appendix-VII of DCR, the writ petitioners were
granted Floor Space Index (“FSI” for short) and/or Transferrable
Development Rights (“TDR” for short) in the form of
Development Rights Certificates (“DRC” for short) equal to the
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gross area of the plots surrendered by them. Para 6 of
Appendix-VII (as it stood prior to its amendment) provided that
when an owner or a lessee also develops or constructs the
amenities on the surrendered plot at his own cost and hands
over the developed/constructed amenity to the Municipal
Commissioner, he is entitled to DRC in the form of FSI or TDR
equivalent to the area of construction/development done by
him. The expression “amenity” has been defined in sub-section
(2) of Section 2 of the MRTP Act as well as clause (7) of
Regulation 3 of DCR.
2.1 For the purpose of implementation of the DCR, two
Circulars were issued on 09.04.1996 and 05.04.2003. By
Circular dated 09.04.1996, the DRC equivalent to 15% area of
the DP Road constructed by the owner or lessee on the
surrendered plot was to be provided when the owner or lessee
surrendered the developed amenity together with the reserved
plot. By Circular dated 05.04.2003, the figure was enhanced to
25%.
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2.2 In Godrej & Boyce I, this Court held that the expression
“equivalent” in Para 6 of Appendix-VII would entitle the owner
or lessee to 100% FSI or TDR for the construction of an amenity
at his cost. Therefore, FSI or TDR for construction of an
amenity would not be confined to 15% or 25% of DP Road area
and it would be equivalent to 100% of the area of the road
constructed by the owner or the lessee.
2.3 The grievance of the writ petitioners before the High Court
was that the Mumbai Municipal Corporation had declined to
grant 100% additional TDR equivalent to the area of the
amenity developed. By a notification issued on 16.11.2016,
Regulation 34 of the DCR was amended. As a result, Appendix-
VII was virtually obliterated from the DCR. The notification
dated 16.11.2016 was assailed and question arose as to
whether the modifications made by the notification amending
Regulation 34 of the DCR would have retrospective or
retroactive operation.
2.4 The High Court made a brief reference to the facts of each
of the writ petitions and considered the detailed submissions
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made on behalf of the writ petitioners, the Mumbai Municipal
Corporation and the State Government.
Contentions before the High Court:
3. It was contended on behalf of the writ petitioners before
the High Court that the unamended Regulation 33(1) of the
DCR enabled the owner of the land to seek benefit of FSI of the
land reserved for DP Road and utilize the same on the
remaining land. Till 17.06.2010, there was no entitlement to
seek FSI under Regulation 33 for construction of an amenity
and the amenity TDR was available only under Regulation 34
read with Para 6 of Appendix-VII. The amendment made on
17.06.2010 to Regulation 33 resulted in the owner, who had
constructed the road, instead of TDR, to opt for FSI to be
utilized on the remainder of the land. He would then be entitled
to an extent of 25% of the FSI. But if the owner constructed an
amenity but did not avail FSI benefit on the remainder land, the
benefit was separated from the land and given in the form of
TDR under Regulation 34 read with Para 6 of Appendix-VII.
That Para 6 of Appendix-VII was not amended as such on
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17.06.2010 after the decision of this Court in Godrej & Boyce I
as no amendment was carried out as such. However, by the
notification dated 16.11.2016, the entire Regulation 34 and
Appendix-VII were substituted. As per the amended provision,
the owner was eligible to obtain TDR for the land at the rate
mentioned in Para 4.1 of the amended Regulations as the owner
who developed the amenity thereon became eligible to receive
TDR in terms of Para 4.2 but by this, Regulation 33(1) did not
undergo any amendment.
3.1 It was contended that the aforesaid amendment should be
construed to be prospective as otherwise it would apply to cases
where amenity was developed and surrendered earlier, and
hence would be unconstitutional. It was pointed out that
subsequent to the judgment of this Court in Godrej & Boyce I,
in the case of Municipal Corporation of Greater Bombay vs.
Natwar Parikh & Co. Pvt. Ltd., Civil Appeal No.1748 of
2015, (“Natwar Parikh”) this Court had rejected the prayer of
the Mumbai Municipal Corporation to revisit the decision in the
case of Godrej & Boyce I and had also rejected the prayer for
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declaring that the said judgment would have only a prospective
effect. In the said case, this Court had also rejected an
argument of delay and laches.
3.2 It was further contended that the notification dated
16.11.2016 could not have a retrospective effect as the decision
of this Court in Godrej & Boyce I could not have been nullified
by taking away the vested right conferred, without altering the
basis of the judgment.
3.3 It was next contended that clause (b) of sub-section (1) of
Section 126 of the MRTP Act, which was incorporated into the
statute book with retrospective effect from 25.03.1991, would
imply that prior to the said date, there was no provision for
FSI/TDR for construction of a road by the owner. That for the
first time w.e.f. 17.06.2010, provision was made for an
additional 25% FSI for construction of DP Road. Since a road
falls within the definition of amenity under the DCR as well as
MRTP Act, compensation in the form of FSI/TDR for the
construction of an amenity as provided by the relevant DCR
ought to have been granted to the petitioners. This was having
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regard to Regulation 34 read with Appendix-VII which is a
complete code for grant of TDR. It was submitted that the
scheme of an additional 100% TDR on account of construction
of an amenity was in lieu of payment of compensation in an
acquisition proceeding.
3.4 The contention of the Mumbai Municipal Corporation, on
the other hand, was that the decision of this Court in Godrej &
Boyce I, was per incuriam as it ignored the effects of Regulation
33 of the DCR. It was contended that if the compensation had
been paid partly or fully by any means, TDR could not be
granted. That in the case of the writ petitioners, the
compensation in the form of 10% or 25% additional TDR had
already been granted and the notification dated 16.11.2016 had
removed the basis of the decision of this Court in Godrej &
Boyce I and there was now a prohibition for issuance of TDR in
favour of the persons who had already been compensated. They
further contended that the impugned notification would apply
even to cases pending before the High Court and the Mumbai
Municipal Corporation as the judgment in Godrej & Boyce I
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had been nullified by the said notification. Further, there
cannot be 100% TDR in respect of the area of the amenity
developed, and therefore, to cure the defect, the notification
dated 16.11.2016 was enforced and that the DCR applicable on
the date of deciding an application for grant of development
permission would govern the decision on the application.
3.5 By way of reply, the writ petitioners contended before the
High Court that the notification dated 16.11.2016 was not a
validating Act. It was merely a delegated legislation which could
not nullify the judgment of the Apex Court. The right to claim
TDR on the development of the amenity vests in the owner the
moment the permission is granted by the Municipal
Corporation to construct the road/amenity. The judgment in
Godrej & Boyce I is not per incuriam and had been applied in
other subsequent cases. The object of giving a benefit under
Regulation 34 is owing to lack of financial capacity of the
Municipal Corporation to construct amenities by itself. Hence,
the writ petitioners sought relief under Regulation 34 of the
DCR.
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Consideration by the High Court:
4. On a consideration of the rival submissions and taking
note of the fact that the contention of the Mumbai Municipal
Corporation was that the decision of this Court in Godrej &
Boyce I was per incuriam, the High Court considered the
provisions of the Act and the Regulations in extenso. The High
Court noted that in almost all the cases the action of
surrendering the land and developing the amenities had been
completed by 17.06.2010 when Regulation 33 underwent an
amendment. Therefore, on a consideration of the erstwhile
Regulation 33, the High Court observed that the same was
applicable to a case where the owner, including a lessee, had
surrendered the land or area required for road widening or for
construction of a new road proposed under the development
plan or those proposed under the Mumbai Municipal
Corporation Act, 1888 (“the Act of 1888” for short). Thus, it
would apply to the lands reserved in the development plan for
construction of new roads or for road widening and also to the
lands which were within the road-line as fixed under the Act of
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1888 on which a road had not yet been constructed. The said
provision was not applicable to any other amenity. It was
further observed that a part of FSI could be used on the plot
remaining after such surrender and the balance FSI was to be
permitted to be utilised as TDR by issuing DRC. Such TDR was
to be governed by Regulation 34 as that is the provision for
grant of TDR. Thereafter, the road and land would stand
transferred in the city survey record in the name of the Mumbai
Municipal Corporation and vest in the Corporation.
4.1 Reference was then made to Regulation 34 and Appendix-
VII, which deals with TDR. The concept of TDR is that FSI
available in respect of one plot of land could be permitted to be
utilised on another plot of land. Para 6 of Appendix-VII dealt
with a case where the owner or lessee developed or constructed
the amenity on the surrendered land. In such a case, it was
relatable to clause (b) of sub-section (1) of Section 126 of the
MRTP Act. The said Act defines “amenity” under sub-section (2)
of Section 2 of the MRTP Act, as also in clause (7) of Regulation
3 of the DCR. The High Court observed that Regulation 33(1)
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gave effect to clause (b) of sub-section (1) of Section 126 of the
MRTP Act. That Para 5 of Appendix-VII pertains to the extent of
TDR to be granted against the surrender of a reserved land.
Para 5 of Appendix-VII is significant inasmuch as it deals with a
case where the owner or lessee develops or constructs an
amenity on the surrendered plot at his own cost subject to such
stipulation as may be prescribed by the Municipal
Commissioner. That the expression ‘amenity’ would include a
road and the construction or development of the road would
have to be at the cost of the owner. In such an event, under
Para 6 of Appendix-VII, the grant of additional FSI in the form
DRC is equivalent to the area of construction/development
done by the owner as per the stipulations prescribed by the
Commissioner. This is like a compensation granted for
construction of an amenity as provided in clause (b) of sub-
section (1) of Section 126 of the Act.
4.2 The High Court again considered the argument of the
Mumbai Municipal Corporation made before this Court to the
effect that the value of the amenity developed or constructed by
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the owner for which an additional TDR was sought must be
commensurate to the value of the amenity and not the area of
the amenity, which argument had been repelled by this Court
in Godrej & Boyce I. Thus, the High Court on considering the
judgment of this Court in Godrej & Boyce I observed that the
additional TDR was required to be granted as per DCR and in
particular Para 6 of Appendix-VII equivalent to the area
constructed or developed and not on the basis of the value of
the development of the amenity. Hence, the High Court
observed that when a land which is reserved in the
development plan under the MRTP Act for a public purpose is
surrendered by the owner or lessee free of cost and the amenity
is developed thereon, on its surrender, the owner or lessee will
be entitled to FSI/TDR equivalent to the area of the
surrendered land and an additional TDR equivalent to the area
of the amenity developed or constructed by him.
4.3 While considering the arguments on behalf of the Mumbai
Municipal Corporation with regard to Regulation 33, the High
Court observed that the said Regulation provided that only a
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part of the land FSI can be used on the remaining portion of the
land and the balance FSI had to be provided in the form of
TDR, as per Appendix-VII. That Appendix-VII read with
Regulation 34 dealt only with grant of TDR and the conditions
on which TDR can be granted. Even the TDR available in terms
of the Regulation 33(1) will be governed by Regulation 34 read
with Appendix-VII. This is particularly so, as per Para 5 of
Appendix-VII which applied to the grant of TDR in respect of
land covered by Regulation 33(1). That Para 6 of Appendix-VII
dealt with both situations, i.e., where the entire land held by
the owner or lessee was reserved or a part thereof was reserved
and the land was surrendered to the Corporation. Para 6 also
dealt with grant of an additional TDR for construction of an
amenity in terms of clause (b) of sub-section (1) of Section 126
of the MRTP Act. Regulation 33(1) dealt with FSI or TDR in lieu
of surrender of land required for roads whereas Para 6 of
Appendix-VII dealt with the grant of FSI or TDR in respect of
the road developed at the cost of the owner or the lessee. That
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this Court in Godrej & Boyce I had considered Regulation 33
also.
4.4 Considering Regulation 33 which had undergone an
amendment on 17.06.2010, the High Court observed that prior
to the amendment, the said Regulation did not deal with FSI or
TDR in lieu of the construction of road. It dealt with only FSI or
TDR against the surrender of land reserved for road. However,
after amendment, when a road constructed as per the
stipulation of the Commissioner was handed over to the
Commissioner free of cost, an initial FSI equivalent to 25% of
the area of construction of road can be granted. A part of the
FSI can be consumed on the remaining land and the remaining
part of the FSI will be provided in the form of TDR. Therefore,
the amendment to Regulation 33(1) was applicable to
reservation of road and not for any other amenity. It was also
clarified that the amendment will not apply where the FSI
granted in lieu of road had been utilized and full occupation
certificate had been granted prior to 17.06.2010. Therefore,
after 17.06.2010, in case of a land reserved for road or road
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widening which was surrendered, if the amenity being a road
had been constructed by the owner on the land surrendered,
the additional FSI as provided in clause (b) of sub-section (1) of
Section 126 of the MRTP Act will be 25% of the area of the
construction of road. Hence, Para 6 of Appendix-VII to
Regulation 34 would apply and the owner or the lessee will not
get TDR equivalent to entire area of the road constructed by
him but it will be confined to 25% of the area.
4.5 It was clarified that pursuant to notification dated
16.11.2016, Para 4.2 of the Schedule to the notification would
be the only clause applicable to the grant of TDR against
construction of amenity and that from 16.11.2016, Para 6 of
Appendix-VII would not apply to the lands with amenity
surrendered after that date. In other words, Regulation 34
stands substituted by the Schedule to the said notification. It
was further observed by the High Court that the said
notification dated 16.11.2016 did not have a retrospective
operation and it also did not take away the basis of the decision
in Godrej & Boyce I.
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4.6 It was further clarified by the High Court that in the case
of Natwar Parikh & Co. Pvt. Ltd. vs. State of Maharashtra,
2014 SCC Online Bom 495 (“Natwar Parikh & Co. Pvt.
Ltd.”), 25% TDR was granted to the petitioner therein in the
year 2006-2007. Subsequent to the decision of this Court in
Godrej & Boyce I, the petitioner therein had filed a petition.
On the facts of the case in Natwar Parikh & Co. Pvt. Ltd., it
was observed that there was no delay or laches. The said
decision of the High Court was sustained by this Court in Civil
Appeal No.1748 of 2015. This Court had also rejected the
argument that the judgment in Godrej & Boyce I should apply
prospectively.
4.7 Finally, it was held that additional FSI or TDR in terms of
Para 6 of Appendix-VII as well as in terms of clause (1) of
Regulation 33 becomes available on surrender of the land
reserved with or without amenity, as the case may be. After
17.06.2010, if there is surrender of land reserved for road or
road widening on which road is constructed by the owner or
lessee, the FSI or TDR will be available in respect of amenity of
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road as per Regulation 33(1) as amended. Therefore, the right
to get FSI or TDR accrues at the time of surrender.
4.8 Thereafter, the High Court went into the facts of each of
the writ petitions. Accordingly, the High Court passed the
following order:
i) We hold that the notification dated 16th November
2016 is legal and valid. However, the said
notification will not have retrospective or
retroactive application to a land reserved under the
development plan which is surrendered and
amenity is developed on the said land by the owner
or lessee thereof at his own cost prior to 16 th
November 2016. Such cases will be governed by
the Regulation 33(1) and clauses (5) and 6 of
Appendix VII. In case of a land reserved for a road,
either in development plan under the MRTP Act or
under the provisions of the said Act of 1888 and
surrender is made and road is developed on or
after 17th June 2010 but before 16th November
2016, the FSI or TDR in lieu of amenity will be
governed by the Regulation 33(1) as amended on
17th June 2010.
ii) We reject the argument that the decision of the
Apex Court in the case of Godrej & Boyce
Manufacturing Company Limited (supra) is per
incuriam.
iii) We hold that whether the writ jurisdiction of this
Court under Article 226 of the Constitution of India
can be allowed to be invoked on the basis of the
said decision or not depends upon the facts of each
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case and the conduct of the petitioners especially
the delay and laches on their part;
iv) Writ Petition No.203 of 2014 is allowed. We direct
the third respondent-MMRDA to make
recommendation to the Mumbai Municipal
Corporation for grant of 75% additional FSI/TDR in
terms of the aforesaid decision of the Apex Court
within a period of two months from today. The
Municipal Corporation shall examine the said
recommendation and if the petitioners are
otherwise entitled to TDR for amenity in terms of
the aforesaid decision of the Apex Court, necessary
DRC shall be issued within a period of two months
from the date on which recommendation of
MMRDA is received.
v) Writ Petition No.1898 of 2009 is rejected;
vi) In Writ Petition No.2262 of 2010, the petitioners
will be entitled to additional 100% amenity FSI in
terms of the aforesaid decision of the Apex Court
provided by producing the documents, they satisfy
the Mumbai Municipal Corporation that work was
actually carried out by them for developing the
recreation grounds and the ground;
vii) Writ Petition No.1823 of 2012 is rejected.
viii) Writ Petition No.839 of 2015 is rejected.
ix) Writ Petition No.2871 of 2015 is rejected.
x) Writ Petition No.2107 of 2016 is rejected.
xi) Writ Petition No.2170 of 2016 is rejected.
xii) Writ Petition No.384 of 2017 is rejected.
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xiii) Writ Petition No.541 of 2017 is rejected.
xiv) Writ Petition No.1860 of 2017 is partly allowed. We
direct the Mumbai Municipal Corporation to grant
additional FSI in respect of amenity of road as
provided by Regulation 33(1) as amended with
effect from 17th June 2010.
xv) We make it clear that wherever we have held that
the petitioners are entitled to 100% amenity TDR in
accordance with clause 6 of Appendix VII in terms
of the aforesaid decision of the Apex Court, the
Mumbai Municipal Corporation will have to
examine whether the petitioners are otherwise
eligible for grant of TDR.”
4.9 Out of all the writ petitions disposed of, Writ Petition
No.203 of 2014 was allowed and a direction was issued to the
MMRDA to make recommendations to Mumbai Municipal
Corporation for grant of 75% additional FSI/TDR in terms of
the decision of this Court in Godrej & Boyce I within two
months from the said date of disposal. A further direction was
issued to Mumbai Municipal Corporation to consider the said
recommendation and to pass orders for issuance of DRC within
a period of two months from the date on which
recommendation of MMRDA was received, provided the writ
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petitioner was otherwise entitled to TDR for amenity in terms of
the judgment of this Court in Godrej & Boyce I.
4.10 Similarly, in Writ Petition No.2262 of 2010, additional
FSI to the extent of 100% on amenity was granted in terms of
the decision of this Court in Godrej & Boyce I provided the
writ petitioner therein produced the documents and satisfied
the Mumbai Municipal Corporation that work was actually
carried out for developing the recreation grounds and ground.
4.11 Writ Petition No.1860 of 2017 was partly allowed to the
effect that Mumbai Municipal Corporation ought to grant
additional FSI in respect of amenity of road as provided by
Regulation 33(1) as amended with effect from 17.06.2010. It
was also observed that the petitioners therein are entitled to
100% amenity TDR in accordance with Para 6 of Appendix-VII
in terms of the aforesaid decision of this Court in Godrej &
Boyce I and Mumbai Municipal Corporation was to examine
whether the petitioners therein were otherwise eligible for grant
of TDR.
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4.12 With regard to those cases which were dismissed on the
ground of delay and laches, appeals have been filed by the
private petitioners therein. Appeal has been filed by Mumbai
Municipal Corporation against the order in writ petition No.203
of 2014 but no appeal has been filed against the order in Writ
Petition Nos.2262/2010 and 1860/2017.
There are two more impugned judgments in Writ Petition
Nos.2531/2009 and 411/2013 against which the Mumbai
Municipal Corporation has filed its appeals.
4.13 At this stage, it may be mentioned that where the writ
petitions were dismissed by the High Court on the ground of
delay and laches, there is no observation in those writ petitions
denying the benefit on merits. Insofar as in three cases where
the writ petitions were allowed, there is only one appeal filed by
the Mumbai Municipal Corporation as the orders in Writ
Petition No.2262 of 2010 and Writ Petition No.1860/2017 have
been accepted by it.
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4.14 The details of the three cases in which appeals have been
filed by the Mumbai Municipal Corporation are noted as
under:-
(i) WP No.2531 of 2009 – Starwing Developers
Private Limited vs. Municipal Corporation of
Greater Mumbai - disposed of on 18.10.2019
(ii) WP No.203 of 2014 – Apurva Natvar Parikh
and Co. Private Ltd. vs. State of Maharashtra
and Others - disposed of on 18.12.2018
(iii) WP No.411 of 2013 – Arvind Kashinath
Dadarkar and Others vs. Municipal
Corporation of Greater Mumbai and Others –
disposed of on 20.10.2022.
Starwing Developers Private Limited:
5. In Starwing Developers Private Limited vs. State of
Maharashtra (“Starwing Developers Private Limited”), Writ
Petition No.2531 of 2009 disposed by the High Court on
18.10.2019, unamended Regulation 33 and Regulation 34 as
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they stood prior to 2010 were considered in depth. It was
observed that Regulation 34 as it stood at the relevant time
provided that in certain circumstances, the development
potential of a plot of land could be separated from the land
itself and could be made available to the owner of the land in
the form of TDR which would be subjected to Regulation 34 and
Appendix-VII. It was observed that Appendix-VII titled
“Regulations for the grant of Transferable Development Rights
(TDRs) to owners/developers and conditions for grant of such
rights” had a scheme for the award of TDR to the owner of the
plot of land which was reserved for public purpose and for
additional amenities in the form of FSI. As per the conditions
set out therein, such award would entitle the owner of the land
to FSI in the form of DRC which he could use for himself or
transfer to any other person. Para 5 of the Appendix provided
that the built-up area for the purposes of FSI credited 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 the TDR has
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originated. Para 6 provided that when an owner or a lessee also
developed or constructed an amenity on the surrendered plot at
his own cost, subject to such stipulations which may be
prescribed and to the satisfaction thereof and hands over the
developed or constructed amenity to the Commissioner or the
appropriate authority free of cost, he would be granted further
DR in the form of FSI equivalent to the area of
construction/development done by him, utilisation of which
would be subject to the regulations contained in the said
Appendix.
5.1 Contrasting Regulation 34 with Regulation 33, it was
observed that the latter pertained to additional FSI which may
be allowed to certain categories. Sub-regulation (1) as it stood
at the relevant time, provided that the Commissioner could
permit the additional FSI on 100% of the area required for road
widening or for construction of new roads under the
development plan. Such FSI so surrendered would be utilisable
on the remainder of the land up to a limit of 40% in respect of
the plots situated in Mumbai city and 80% in respect of the
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plots situated in suburbs and extended suburbs. The balance
FSI remaining thereafter was allowed to be utilised as a
development right in accordance with the regulations governing
TDRs. In the said case, it was again contended on behalf of the
Mumbai Municipal Corporation that the petitioner therein
having utilised 100% FSI for surrender of land without cost on
the same layout, was governed by Regulation 33 and therefore,
could not claim any additional FSI/TDR for having constructed
the amenities. This contention, in fact, was squarely identical
to those in the case of Apurva Natwar Parikh & Co. Pvt. Ltd
which case is discussed later.
5.2 It was pointed out that till the amendment on 17.06.2010,
there was no provision in Regulation 33 for claiming FSI for
construction of amenities and the same could be claimed only
in terms of Regulation 34 read with Para 6 of Appendix-VII. On
the other hand, it was contended by the Municipal Corporation
that Regulation 33 was not brought to the notice of this Court
in Godrej & Boyce I and that by notification dated 16.11.2016
the Regulation was amended to restrict the benefit of additional
Page 28 of 86
TDR for development of amenities which was to cure a defect in
the legislation. The said contention was considered in light of
the amendment to Regulation 33 with effect from 17.06.2010,
by which a clause was added to sub-regulation (1) and it was
observed that the amendment to Regulation 33(1) was
applicable to roads and not to any other amenity. Moreover,
this portion of the amendment would not apply where the FSI
granted in lieu of road is utilised and full occupation certificate
was granted prior to 17.06.2010. Therefore, from 17.06.2010 in
case of a land reserved for road or road widening which was
surrendered, if the amenity of the road was constructed by the
owner of the land surrendered, the additional FSI as provided
in clause (b) of sub-section (1) of Section 126 will be 25% from
the area of the construction of the road. Therefore, for such
amenity, in terms of Para 6 of Appendix-VII, the owner or a
lessee will not get TDR equivalent to entire area of the road
constructed by him. It will remain confined to 25% of the area.
It was observed that Regulation 33(1) as amended on
Page 29 of 86
17.06.2010 was not modified by the impugned notification
dated 16.11.2016.
Apurva Natwar Parikh & Co. Pvt. Ltd.:
6. In the case of Apurva Natwar Parikh & Co. Pvt. Ltd. vs.
State of Maharashtra, Writ Petition No.203 of 2014 filed
before the High Court, the surrender of land was in the form of
deed of conveyance and handing over of possession was in
February, 2007 and within three years from the surrender i.e.
February, 2010, the writ petitioner/appellant herein requested
an officer of MMRDA to recommend to the Mumbai Municipal
Corporation to issue 100% additional TDR in respect of
construction of amenity. In December, 2010, DRC of 25% of the
amenity was granted. The balance 75% had not been paid.
Hence, the writ petition was filed in October, 2013. Actually,
within one month from the date of decision in the case of
Godrej and Boyce I, the petitioner applied to the respondent-
MMRDA for recommending to the Mumbai Municipal
Corporation for grant of 100% TDR in respect of the amenity
and the said application was acted upon and 25% FSI was
Page 30 of 86
granted in December, 2010. Therefore, the High Court held that
conduct of the petitioner is not such that it will prevent the Writ
Court from granting relief in terms of the decision in Godrej &
Boyce I.
Arvind Kashinath Dadarkar:
7. In Arvind Kashinath Dadarkar vs. Municipal
Corporation of Greater Mumbai, Writ Petition No.411 of
2013 (“Arvind Kashinath Dadarkar”), disposed of on
20.10.2022, another Division Bench of the High Court of
Bombay while adverting to Godrej & Boyce I and Apurva
Natvar Parikh & Co. Pvt. Ltd., and Starwing Developers
Private Limited, allowed the writ petition and directed that
TDR be issued to the petitioner therein.
Submissions:
8. We have heard the arguments of the respective Senior
Counsel and other Counsel on both sides and perused the
material on record.
Page 31 of 86
Submissions on behalf of the Appellants:
8.1 Learned senior counsel, Sri Pravin Samdani, contended
that the impugned judgment dated 18.12.2018 has, in fact,
upheld petitioners’ right to 100% additional TDR and has
applied the judgment of this Court in Godrej & Boyce I.
However, reliefs were declined to certain writ petitioners on the
ground of delay and laches in claiming the additional TDR in
time. Consequently, the writ petitions were dismissed by the
High Court. Being aggrieved by the dismissal of the writ
petitions, the writ petitioners before the High Court have
preferred these appeals. Therefore, this Court may reverse the
finding of the High Court on the issue of the delay and laches
and grant the reliefs to these appellants as the other writ
petitioners have been granted by the High Court.
8.2 In this regard, it was submitted that the compensation
payable to the landowners/lessees for acquisition of their land
for a public purpose is, in fact, held in trust by the acquiring
body, i.e., the Mumbai Municipal Corporation in the instant
case. Once the compensation is determined, the same was
Page 32 of 86
payable and the reliefs could not have been denied by the High
Court on the ground of delay or laches. In this context, reliance
was placed on Noida Entrepreneur Association vs. NOIDA,
(2011) 6 SCC 508 (Para 38-39) (“Noida Entrepreneur
Association”).
8.3 It was next submitted that the State is the guardian or
custodian and protector of the rights of the citizens. This casts
a duty and obligation on the State to pay compensation to land
losers for lands compulsorily acquired. The right to receive a
fair compensation is a constitutional right guaranteed under
Article 300A of the Constitution of India which can also be
traced to Article 21 of the Constitution of India as a citizen
cannot be deprived of his property, save in accordance with law.
It was contended that the mandate of Section 126(1)(b) of the
MRTP Act and the DCR be complied with by the respondent -
Mumbai Municipal Corporation vis-à-vis the appellants herein.
Otherwise, the denial of compensation would amount to
usurping the citizens’ property without authority of law and in
breach of the constitutional rights of the citizens. In this
Page 33 of 86
context, reliance was placed on Vidya Devi vs. State of
Himachal Pradesh, (2020) 2 SCC 569 (Para 12.9 to 12.14);
Sukh Dutt Ratra vs. State of Himachal Pradesh, (2022)
SCC OnLine SC 410, (Para 13-27); and Lalaram Vs. Jaipur
Development Authority, (2016) 11 SCC 31, (Para 124 &
129); Kazi Moinuddin Kazi Bashiroddin vs. Maharashtra
Tourism Development Corporation (2022) SCC OnLine SC
1325, (Para 26).
8.4 In the above backdrop, learned senior counsel, Sri Pravin
Samdani submitted that the High Court was not right in
dismissing the writ petitions on the ground of delay and laches
when the respondent – Mumbai Municipal Corporation had not
proved that:
(i) the delay amounted to laches;
(ii) owing to delay and during the interregnum, the
respondent – Mumbai Municipal Corporation had
altered its position to its prejudice; and
Page 34 of 86
(iii) certain rights had accrued which could not be
disturbed by grant of reliefs to the writ
petitioners/appellants herein.
In this context, reliance was placed on Moon Mills Ltd.
vs. M.R. Meher, President, Industrial Court, Bombay, AIR
1967 SC 1450, (Para 9); M/s Dehri Rohtas Light Railway
Company Limited vs. District Board, Bhojpur, (1992) (2)
SCC 598, (Para 13); Hindustan Petroleum Corporation Ltd.
vs. Dolly Das, (1999) 4 SCC 450] (Para 8); and Tukaram
Kana Joshi vs. Maharashtra Industrial Development
Corporation (2013) 1 SCC 353, (Para 12); and Mohar Singh
(Dead) Thr. LRs. vs. State of UP Collector, 2023 INSC 1019
(Para 12).
8.5 It was further urged that the Mumbai Municipal
Corporation has not asserted that owing to the alleged delay on
the part of the appellants herein in making their claim under
Section 126(1)(b) of the MRTP Act, there was any prejudice
caused to it.
Page 35 of 86
8.6 It was also submitted that the observations of the High
Court in the impugned judgment that there was a waiver or an
abandonment of their rights by the writ petitioners/appellants
herein are contrary to the facts and law. In this regard
reference was made to Godrej & Boyce Manufacturing Co.
Ltd. vs. Municipal Corporation of Greater Mumbai, (2023)
SCC OnLine SC 592, (Paras 8, 15 and 18) (“Godrej & Boyce
II”); G.T. Lad vs. Chemical and Fibres of India Ltd., (1979)
1 SCC 590, (Para 5 & 6); A.P. SRTC vs. S. Jayaram, (2004)
13 SCC 792, (Para 5); and State of Punjab vs. Davinder Pal
Singh Bhullar, (2011) 14 SCC 770, (Para 37 to 42).
8.7 Petitioners’ counsel therefore sought for allowing these
appeals by setting aside that portion of the order of the High
Court declining to grant relief on the ground of delay and
laches.
8.8 On the merits of the case, Sri Samdani submitted that
Section 2(2) of the MRTP Act defines an amenity which is also
defined under Regulation 3(7) of DCR. Section 126(1)(b) of
MRTP Act provides for compulsory acquisition, wherein
Page 36 of 86
compensation is provided in the form of FSI or TDR in two
parts: (i) for the land; and (ii) for development/construction of
the amenity at the cost of the owner on the surrendered land in
terms of the DCR. That Regulations 33(1) and 34 prior to their
amendment in the year 2010 provided a mechanism for grant of
TDR for both the first as well as the second component. This
Court had interpreted the aforesaid provisions in the case of
Godrej & Boyce I. This Court observed that the grant of
additional TDR was for construction or development of the
amenity. However, in the year 2010, there was an amendment
which stated that in addition to the land component of
FSI/TDR, the land owner would be entitled to receive only
additional 25% FSI/TDR for construction of road. However, the
additional 25% could be used as FSI on the remainder of the
plot if the remainder of the plot could consume to the extent of
40/80% of the remaining land after surrender. The balance
FSI/TDR was eligible to be paid as TDR under Paras 5 and 6 of
Appendix-VII-A and Regulation 34 of the DCR. This amendment
of 17.06.2010 was subsequent to the judgment of this court in
Page 37 of 86
Godrej & Boyce I. However, there was no alteration to
Regulation 34 and Paras 5 and 6 of Appendix-VII-A of the DCR.
This amendment was in the form of delegated legislation and
was only prospective in nature. But by the amendment of
16.11.2016, the entire Regulation 34 and Appendix-VII-A was
amended. As a result of the amendment, if the land owner
desired to obtain TDR for the land component, the owner was
eligible to do so at the rate mentioned in Para 4.1 of amended
Regulation. If the landowner also developed the amenity, the
owner became eligible to receive compensatory TDR in terms of
Para 4.2 of the amended Regulation.
8.9 According to learned senior counsel, this amendment is
also prospective. It was further submitted that by the
amendment of Regulation 34 of the DCR, the basis of the
judgment in Godrej & Boyce I was not removed. The intention
of the amendment was to grant additional compensation to the
landowner in view of the enforcement of Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 and not to remove
Page 38 of 86
the basis of the judgment in Godrej & Boyce I. There was no
intention to validate any action of the Corporation of curtailing
amenity TDR to 25% or to validate Circulars based on which it
was sought to be curtailed to 25%. Therefore, the judgment of
this Court in Godrej & Boyce I remains intact.
8.10 It was further submitted that the right to receive
compensation for acquisition is a vested right and a
constitutional right and the same cannot be taken away by an
amendment to the statute.
8.11 It was next submitted that the attempt of the Mumbai
Municipal Corporation to deny balance 75% TDR in view of the
notification dated 16.11.2016 is unsustainable. This is because
the writ petitioners’ right to receive the balance TDR is a vested
right which arose under the old DCR and continues even after
the amendment. Further, a person cannot be denied
compensation by a subsequent legislation when the entitlement
is recognized under a prior legislation. The High Court has
rightly held that the DCR amended was prospective and not
retrospective.
Page 39 of 86
Submissions on behalf of the Respondents:
9. Per contra, learned senior counsel Sri Nadkarni, appearing
for the respondent – Mumbai Municipal Corporation submitted
a chart giving details of each of the appellants/writ petitioners
before the High Court. The relevant chart is extracted
hereinbelow:
SR. NO./ PARTICULARS DATE OF WHETHER APPLICATION DELAY
RELEVANT HANDING HANDED FOR
REGULATION OVER OF OVER ADDITIONAL
AMENITY AMENITY AMENITY
COMPLIES FSI/TDR
WITH ALL AFTER
CONDITIONS GODRIJ &
BOYCE
JUDGMENT
(06.02.2009)
1. KUKREJA 28.01.1994 –NO— 31.08.2009 6-15 years
REGULATION CONSTRUCTION In the (calculated
34 CO. & ORS. VS. constructed from the date
STATE OF road the sewer of handing
MAHARASHTRA lines were not over of
& ORS. laid down nor amenity)
the street
SLP (C) lights were laid
NO.5273.2019 down. On
failure to
WP(C) comply parties
NO.1898/2009 are required to
pay prorate
charges. As
regard to
street lights
the prorate
charges were
paid after
delay, Sewer
lines were not
paid.
2. NANABHOY 1. YES For 6 cases – 8-16 years
REGULATION JEEJEEBHOY 13.04.2004 11.07.2014 (calculated
33(1) PVT. LTD. & ANR. 2. from the date
VS. STATE OF 20.03.2001 For 4 cases – of handing
MAHARASHTRA 3. 19.08.2014 over of
& ANR. 27.03.2002 amenity)
4. For one case
06.09.2001 – 26.08.2014
Page 40 of 86
SR. NO./ PARTICULARS DATE OF WHETHER APPLICATION DELAY
RELEVANT HANDING HANDED FOR
REGULATION OVER OF OVER ADDITIONAL
AMENITY AMENITY AMENITY
COMPLIES FSI/TDR
WITH ALL AFTER
CONDITIONS GODRIJ &
BOYCE
JUDGMENT
(06.02.2009)
SLP (C) 5.
NO.8664/2019 13.02.2006 6. WP (C) 27.10.1997 NO.541/2017 7. 27.10.1997 8. 29.10.1997 9. 21.12.2002 10. 14.12.2001 /22.05.2002 11. 14.08.2002 3. JITENDRA 05.03.2005 YES 24.02.2009 4 years REGULATION AMRITLAL SETH (calculated 33(1) & ORS. VS. from the date STATE OF of handing MAHARASHTRA over of & ORS. amenity) SLP (C) NO.8204 / 2019 WP(C) NO.1823/2012 4. GEETA ALIAS 20.05.2005 YES For Balance 4½ years REGULATION CHANDANI 75% (calculated 34 UMESH additional from the date GANDHI TDR on of handing 01.12.2009, over of SLP (C) 20.06.2014, amenity) NO.15702/2019 01.12.2014, 20.02.2016 WP(C) NO.839/2015 5. MCGM V. 07.02.2007 YES Balance 75% No delay case REGULATION APURVA TDR as High 34 NATWAR 14.12.2011 Court PAREKH & CO. (Godrej & allowed the PVT. LTD & Boyce case – WP ORS. after 2 years applied) Page 41 of 86 SR. NO./ PARTICULARS DATE OF WHETHER APPLICATION DELAY RELEVANT HANDING HANDED FOR REGULATION OVER OF OVER ADDITIONAL AMENITY AMENITY AMENITY COMPLIES FSI/TDR WITH ALL AFTER CONDITIONS GODRIJ & BOYCE JUDGMENT (06.02.2009) SLP (C) NO.13365/2019 WP(C) NO.203/2014 6. OBEROI 1. 26.05.04 YES 10.06.2016 8 years REGULATION REALITY LTD. 2. 16.04.08 (calculated 33(1) ANR. VS. MCGM 3. 29.03.08 from the date & ANR. of handing over of SLP (C) amenity) NO.8520/2019 WP(C) NO.384/2017 7. GIRDHARLAL D. 13.12.1995 YES 05.08.2014 18 years REGULATION RUGHANI ALIAS (calculated 33(1) THAKAR HUF & from the date ANR. of handing VS. over of STATE OF amenity) MAHARASTHRA & ORS. SLP (C) NO.5745/2020 WP(C) NO.2170/2016 8. JAMEEL A. 29.07.2004 YES 28.07.2014 4 years from REGULATION HUSSAIN & notification 33(1) ORS. V. dated STATE OF 17.06.2010 MAHARASHTRA & ORS. SLP (C) NO.8704/2019 WP(C) NO.2871/2015 9. BYRAMJI 05.06.2007 YES No 9 years (wrt REGULATION JEEJEEBHOY Application the WP filed) 34 PVT LTD. ANR. made for VS. STATE OF 75% MAHARASHTRA additional. Page 42 of 86 SR. NO./ PARTICULARS DATE OF WHETHER APPLICATION DELAY RELEVANT HANDING HANDED FOR REGULATION OVER OF OVER ADDITIONAL AMENITY AMENITY AMENITY COMPLIES FSI/TDR WITH ALL AFTER CONDITIONS GODRIJ & BOYCE JUDGMENT (06.02.2009) SLP (C) NO.8552/2019 WP(C) NO.2107/2016 10. MCGM V. 29.12.2007 YES ………………. 1½ years REGULATION STARWING (calculated 33(1) from the date SLP (C) of rejection NO.10430/2020 by the State Government WP(C) on NO.2531/2009 15.07.2008 and thereafter WP filed on 05.12.2009) 9.1 Insofar as the appellant – M/s Kukreja Construction
Company, it was submitted that the conditions which are
required to be complied with for seeking compensation under
Section 126(1)(b) of the MRTP Act have not been met and
therefore, unless and until the said conditions are complied
with, the said appellant would not be entitled to compensation
under the scheme of the Act and the Regulations made
thereunder. As far as the other appellants are concerned, he
fairly submitted that even according to the Mumbai Municipal
Corporation they have complied with the conditions as required
Page 43 of 86
under the scheme and therefore, their cases could be
considered if they are otherwise eligible for compensation being
paid to them in case they are successful in these appeals.
9.2 Learned senior counsel also strenuously sought to
buttress the submissions made on behalf of the Mumbai
Municipal Corporation before the High Court regarding the
judgment of this Court in Godrej & Boyce I, but did not
persuade himself to do so. Ultimately, he supported the order of
the High Court in denying the reliefs to the writ petitioners who
had delayed in making their claims. He contended that the High
Court was right in declining to grant the relief to the said
parties.
9.3 Sri Nadkarni contented that firstly, the High Court was
right in declining relief based on the judgment of this Court in
Godrej and Boyce I owing to delay, as those developers who
already availed of the TDR and accepted the same without any
protest or demur could not again agitate the matter after the
judgement of this Court in Godrej and Boyce I. Secondly, there
was a crystallisation of the compensation payable in the form of
Page 44 of 86
FSI/TDR as on the date of the notice of acquisition which in
this case could be either the publication of the development
plan or the date of preliminary notification under the
Acquisition Act and that the owner or lessee could not have
returned for a second helping or make an additional claim of
100% TDR since the value of the land as on the date when the
project was conceived or when the benefits were received would
have been lesser than the value of the land on the date of the
filing of the writ petition. Thirdly, any grant of additional TDR
despite there being a delay would result in unjust enrichment
of the owner and the lessee who could get an advantage of
escalation in price of land which is contrary to public interest.
Therefore, for this reason also, the High Court was justified in
declining to grant relief on the ground of delay and laches.
Hence, there is no merit in these appeals.
9.4 Learned senior counsel submitted that in the event this
Court is to condone the delay and laches and thereby modifies
the impugned judgment of the High Court then, in the case of
the appellants in CA No. 9702 of 2024, (Kukreja Construction
Page 45 of 86
company and others) this Court may direct that only on
complying with the mandatory requirements could the said
appellant avail of the benefits of additional FSI/TDR in
accordance with law as indicated in the table above.
9.5 Learned senior counsel, Sri Nadkarni, with reference to
our order dated 06.08.2024, sought further instruction on
Estate Investment Company Ltd. and Ever-smile Construction
being granted relief of 100% of TDR rights in terms of Section
126(1)(b) of the MRTP Act as well as the DCR. He fairly
submitted that there is no dispute that the aforesaid two
entities were indeed granted 100% TDR rights. Further, there
has been no appeal filed with regard to the order of the High
Court in Writ Petition No. 1860 of 2017 and Writ Petition
No.2262 of 2010. Learned senior counsel, Sri Nadkarni, also
submitted that insofar as the judgment of the High Court
assailed in Civil Appeal Nos.9711/2024 and 9712/2024, they
may be disposed in light of the prevalent law.
Page 46 of 86
Reply arguments:
10. By way of reply, learned senior counsel, Sri Samdani and
other learned counsel contended that the Mumbai Municipal
Corporation cannot be permitted to raise any contention
contrary to the judgment of this Court in Godrej & Boyce I
which is holding the field and there is no contention raised by
the Municipal Corporation either before the High Court or this
Court which can lead to a reconsideration of the said judgment.
Hence, they sought for application of the judgment of this Court
in Godrej & Boyce I to their cases as well.
10.1 Learned counsel for the respondents in the three appeals
filed by the Mumbai Municipal Corporation supported the
impugned order passed by Bombay High Court and contented
that having regard to the judgment of this Court in Godrej &
Boyce I and the order passed in Civil Appeal No. 1748 of 2015
which arose from the judgment of the Bombay High Court in
the case of Natwar Parikh & Co. Pvt. Ltd, there is no merit in
these appeals. Hence, they contended that the appeals filed by
the Mumbai Municipal Corporation may be dismissed.
Page 47 of 86
Points for consideration:
11. In light of the aforesaid contentions, the following points
would arise for our consideration: –
(i) Whether the High Court was right in declining to
grant relief to the writ petitioners/appellants
herein on the ground of delay and laches?
(ii) Whether the appeals filed by the respondent-
Mumbai Municipal Corporation would call for
any interference by this Court?
(iii) What order?
Godrej & Boyce I:
12. At the outset, it would be useful to refer to the dictum of
this Court in Godrej & Boyce I which has been followed by the
High Court in these cases. In the said case, this Court
considered the scheme of development rights in respect of land
acquired for the purpose specified in plans under Section 126
of the MRTP Act. Three modes of acquisition of land required
for a public purpose specified in the plan are contemplated
under Section 126 of the MRTP Act, which reads as under:
Page 48 of 86
“126. Acquisition of land required for public
purposes specified in plans.— (1) Where 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 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 may be, 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 and 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 an application to the State Government
for acquiring such land under the provisions of the
Right and Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act,
Page 49 of 86
2013, and the land (together with the amenity, if any so
developed or constructed) so acquired 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 and 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 Appropriate
Authority.
(2) On receipt of such application, if the State
Government is satisfied that the land specified in the
application is needed for the public purpose therein
specified, or if the State Government (except in cases
falling under Section 49 and except as provided in
Section 113-A) itself is of opinion that any land
included in any such plan is needed for any public
purpose, it may make a declaration to that effect in
the Official Gazette, in the manner provided in Section
19 Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act,
2013, in respect of the said land. The declaration so
published shall, notwithstanding anything contained in
the said Act, be deemed to be a declaration duly made
under the said section:
Provided that, subject to the provisions of sub-
section (4), no such declaration shall be made after the
expiry of one year from the date of publication of the
draft Regional Plan, Development Plan or any other
Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said
Section 19, the Collector shall proceed to take order for
the acquisition of the land under the said Act; and thePage 50 of 86
provisions of that Act shall apply to the acquisition of
the said land with the modification that the market
value of the land shall be,—
(i) where the land is to be acquired for the purposes of a
new town, the market value prevailing on the date of
publication of the notification constituting or declaring
the Development Authority for such town;
(ii) where the land is acquired for the purposes of a
Special Planning Authority, the market value prevailing
on the date of publication of the notification of the area
as undeveloped area; and
(iii) in any other case, the market value on the date of
publication of the interim development plan, the draft
development plan or the plan for the area or areas for
comprehensive development, whichever is earlier, or as
the case may be, the date of publication of the draft
Town Planning Scheme:
Provided that, nothing in this sub-section shall affect
the date for the purpose of determining the market
value of land in respect of which proceedings for
acquisition commenced before the commencement of
the Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972:
Provided further that, for the purpose of clause (ii) of
this sub-section, the market value in respect of land
included in any undeveloped area notified under sub-
section (1) of Section 40 prior to the commencement of
the Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972, shall be the market value
prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso
to sub-section (2) and sub-section (3), if a declaration,Page 51 of 86
is not made, within the period referred to in sub-
section (2) (or having been made, the aforesaid period
expired on the commencement of the Maharashtra
Regional and Town Planning (Amendment) Act, 1993,
the State Government may make a fresh declaration for
acquiring the land under the provisions of the Right
and Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
in the manner provided by sub-sections (2) and (3) of
this section, subject to the modification that the market
value of the land shall be the market value at the date
of declaration in the Official Gazette, made for acquiring
the land afresh.”
In this case, we are concerned with Section 126(1)(b) of the
MRTP Act.
12.1 Under Section 126(1) of the MRTP Act, when land is
required or reserved for any of the public purposes specified in
any plan or scheme under the Act at any time, the Planning
Authority, the Development Authority, or as the case may
be, any Appropriate Authority may acquire the land by
agreement by paying an amount agreed to landowner or lessee
[Section 126(1)(a)]; the second mode is, in lieu of any such
amount as mentioned above, by granting the landowner or the
lessee, subject, however, to the lessee paying the lessor or
Page 52 of 86
depositing with the Planning Authority, the Development
Authority or Appropriate Authority, as the case may be, 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 Land
Acquisition Act, 1894, Floor Space Index (FSI) or Transferable
Development Rights (TDR):
(i) against the area of land surrendered free of cost and free
from all encumbrances, and also
(ii) further additional FSI or TDR against the development or
construction of the amenity on the surrendered land at his
cost, as the Final Development Control Regulations
prepared in that behalf provide [Section 126(1)(b)].
The third mode being by acquisition of the land
under the relevant Act [Section 126(1)(c)].
12.2 Thus, it is open to the landowner to surrender the plot of
land “free of cost” and “free from all encumbrances” to the
appropriate authority who may acquire the land by granting to
Page 53 of 86
the owner FSI or TDR against the area of the surrendered land.
The scheme further provides for additional FSI or TDR against
the development of construction of amenities (for which the plot
is shown reserved in the plan) by the owner at his own cost.
12.3 In Godrej & Boyce I, the appellants therein had their
plots covered under the development plan as reserved for roads,
which they voluntarily surrendered. In addition, they
constructed on their respective pieces of land the development
plan roads at their own cost and as per the specifications
stipulated in the relevant rules. In the said case, there was no
dispute between the parties in regard to the FSI or TDRs
granted to them for the surrendered plots of land. The
controversy was with regard to the FSI or TDRs for roads
constructed on the surrendered lands at the owner’s cost. The
landowners claimed that for constructing the roads they were
entitled to FSI or TDRs for the whole of the surface area of the
roads. They relied upon Para 6 of Appendix-VII to the DCRs.
The Mumbai Municipal Corporation however relied upon a
Circular dated 09.04.1996 issued by the Municipal
Page 54 of 86
Commissioner, Municipal Corporation of Greater Bombay,
which envisaged a graded scheme for grant of additional
development rights for construction of amenities by the
landowner, e.g. in case of amenities like general hospital,
municipal primary school, etc. which allowed FSI equal to the
built-up area of the structure but in case of DP road only 15%
of the area of the road surface. The Circular was assailed by
the landowners.
12.4 In the said case, the Bombay High Court had accepted
the contention advanced on behalf of the State of Maharashtra
to the effect that by introducing a graded scheme for grant of
additional FSI or TDR the Circular had eliminated the
possibility of any discriminatory or arbitrary action on the part
of the authority competent to issue the development right
certificate. It was contended that grant of further additional
TDR was commensurate to the value of the amenity
constructed/developed on the surrendered land. Therefore, it
was contended that Para 6 of the Appendix-VII, unlike Para 5
didn’t use the words “equal to the gross area of the reserved
Page 55 of 86
plot” or “equal in area”. Instead, Para 6 used the words
“equivalent to the area of construction/development”. That,
Para 6 of Appendix-VII to the Regulations must be read with
Section 126(1)(b) of the Act. It was evident that the said
provision used the words “against the area of the land
surrendered” and “against the development or construction of
amenity on the surrendered land”. Therefore, the grant of
additional development right was proportionate to the value of
the amenity constructed by the owner at his own cost and the
Circular issued by the Municipal Commissioner simply
quantified the exchange value of different kinds of amenities in
percentage terms depending upon their cost of construction
and other relevant considerations.
12.5 However, the aforesaid submission, which was accepted
by the Bombay High Court was not agreed to by this Court and
the judgment of the Bombay High Court was set-aside. While
doing so, the submission on behalf of the appellants therein
was accepted that the provision clearly envisaged grant of the
FSI or TDR under two separate heads: one, for the land, and
Page 56 of 86
the other, for the construction of the amenity for which the land
was designated in the development plan at the cost of the
owner. The Court also held that Section 2(9-A) defined
“development right” to include TDR and Section 126(1)(b)
provided for:
(i) grant of FSI or TDR against the area of land
surrendered free of cost, and
(ii) further, additional FSI or TDR against the
development or construction of the amenity on
the surrendered land at the owner’s cost as the
final Development Control Regulations should
provide.
12.6 In the case of (i) above, FSI or TDR would be equal to the
gross area of the surrendered plot, and for (ii) above i.e. for
construction of the amenity, the extent of the FSI or TDR would
be equivalent to the area of the construction/development
made on the land.
Page 57 of 86
12.7 That Regulation 34 made provisions for transferability of
the development rights and Appendix-VII referred to in
Regulation 34 provided for the extent of FSI or TDR admissible
under the two heads. That the expression “equivalent to the
area” of the construction or development made on the
surrendered land in Para 6 of Appendix-VII would mean
“equivalent to the area of construction/development”, that is to
say, the additional DR would be the same in area as the
amenity constructed/developed on the surrendered land.
Hence, there cannot be a differentiation in the grant of
additional TDR on a variable and sliding scale on the
surrendered land for amenities constructed on the basis of the
Circular issued by the Municipal Commissioner. Also, the
Circular cannot override the provisions of the Regulations. It
was further observed that the expressions “against the area of
the land surrendered free of cost” and “against the development
or construction of amenity on the surrendered land” would mean
“in exchange for, in return for; as an equivalent or set-off for; in
lieu of, instead of”. Section 126(1)(b) was a recompense to the
Page 58 of 86
landowner proportionate to the area of development or
construction of the amenity on the surrendered land. Thus, in
Para 5 of Appendix-VII to the Regulations, the expression
“equal to the gross area of reserved plot” was relatable to the
bare land and in Para 6 of the Appendix, the expression
“equivalent to the area of the construction/development” would
mean that “the area of construction or development” is the
measure of equivalence. Therefore, there could be no other
basis for determining the equivalence. Hence, the Circular was
held to be without authority of law.
Natwar Parikh & Co. Pvt. Ltd.:
13. Prior to the impugned judgments of the High Court, in
Natwar Parikh & Co. Pvt. Ltd., a writ petition was filed before
the Bombay High Court seeking a direction for grant of
additional TDR/development rights certificate (DRC) for the
balance 75% area as set out in the Schedules annexed to the
writ petitions. In that case also, admittedly, the respondents
therein had been granted 25% TDR/DRC in lieu of the
construction of the specified DP Road and there was no
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challenge about the actual work done at the relevant time.
Subsequent to the judgment of this Court in Godrej & Boyce I,
the petitioner therein filed the petition. The respondent Mumbai
Municipal Corporation sought to deny the same on a twofold
contention: firstly, there was delay and laches; and, secondly,
an attempt was made to reopen the issues on facts about the
construction of the DP Road. The same were repelled by the
High Court by holding that already 25% TDR had been granted
and therefore, there could be no reopening of the controversy
on that basis and the only question which remained was the
entitlement of the petitioner to remaining 75% TDR/DRC as
prayed.
13.1 A contention was also sought to be raised by the
respondent-Corporation that the petitioner therein had not
built upon the amenity as contemplated under Regulation 34
Appendix-VII Paras 5 and 6. The said contention was also
repelled by holding that the right of the petitioner has already
been crystallised and the cause of action was a continuing one
and hence there was no question of delay and laches.
Page 60 of 86
Consequently, a direction was issued to grant additional TDR
for the balance 75% area. It was also observed that the issues
which were raised in the said case had been concluded by the
judgment of this Court in the case of Municipal Corporation
of Greater Bombay vs. Yeshwant Jagannath Vaity, (2011)
11 SCC 88 (“Yeshwant Jagannath Vaity”), “for other
amenity” also.
13.2 In Civil Appeal No.1748 of 2015 (Municipal
Corporation of Greater Mumbai vs. Natwar Parikh and Co.
Pvt. Ltd.), this Court by order dated 05.05.2016 has
categorically observed that it was too late to re-visit the entire
issue and to take a decision whether the judgment delivered
earlier in Godrej & Boyce I should apply prospectively and not
retrospectively. That is a matter which should have been
agitated when Godrej & Boyce I was being heard. It was
further observed that insofar as the 89 applicants who were
then waiting to take an advantage of the aforesaid decision
rendered by this Court, on the facts of the cases the
applications ought to be considered and if a dispute arises the
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appropriate Court would take a decision in the matter.
Consequently, the Civil Appeal filed by the Mumbai Municipal
Corporation were dismissed.
Godrej & Boyce II:
14. It would be useful to refer to another decision of this Court
in the case of Godrej & Boyce II. In the said case, two
questions arose for consideration in the context of grant of DRC
for a total area of 31,057.30 sq. metres, for the construction
and development of the amenity namely, Recreation Ground.
One of the questions considered was whether the High Court
was right in concluding that there was an abandonment of
claim by the appellants therein. Touching upon the facts of the
case, this Court took note of the rejection of the claim by the
Corporation vide communication dated 27.11.1998 for the
grant of additional TDR made by application dated 17.04.1998;
the resolution of the dispute of the said entity with the decision
of this Court dated 06.02.2009 in Godrej & Boyce I (its own
case); application being made for the grant of additional TDR on
03.11.2009 being rejected and a fresh writ petition being filed
Page 62 of 86
in the year 2010. This Court considered the law of
abandonment in the context of the contention raised by the
Mumbai Municipal Corporation and it was observed in
paragraphs 15 to 18 as under:
“15. The law of abandonment is based upon the
maxim invito beneficium non datur. It means that
the law confers upon a man no rights or benefits
which he does not desire. In P. Dasa Muni Reddy v. P.
Appa Rao, this Court held that “abandonment of right is
much more than mere waiver, acquiescence or laches….
Waiver is an intentional relinquishment of a known right
or advantage, benefit, claim or privilege….”. In
paragraph 13 of the said decision, this Court put the
law pithily in the following words:
“13…. There can be no waiver of a non-
existent right. Similarly, one cannot waive
that which is not one’s as a right at the time
of waiver. …”
16. Irrespective of whether the respondents concede or
not, the Circular dated 09.04.1996 curtailed the rights
of the owners to have additional TDR in certain
circumstances. The Circular came under challenge
before this Court and the decision of this Court
in Godrej and Boyce Manufacturing Company
Limited was delivered on 06.02.2009. As we have stated
earlier, the decision in Godrej and Boyce Manufacturing
Company Limited was in the case of the very appellant
No. 1 herein though in respect of some other property.
17. To put it differently, what was cited by the
Municipal Corporation in their order of rejection dated
27.11.1998 as an impediment for the grant of
additional TDR was the subject matter of challenge inPage 63 of 86
the first round. It was made by the very appellant No. 1
herein, though in respect of another property. If the
said decision in the first round had gone against
appellant No. 1 herein, the rejection of the claim of the
appellants for additional TDR on the basis of “prevailing
policy” would have become final and unquestionable.
18. In other words, during the period from 1996 to
2009, the right to claim additional TDR was in
suspended animation. Therefore, the appellants had to
necessarily wait till the cloud over their right got
cleared. To say that the wait of the appellants during
the period of this cloudy weather, tantamount to
abandonment, is clearly unjustified and unacceptable.
Therefore, the finding recorded by the High Court on
question No. 1 is not in tune with the law or the facts of
the present case and hence question No.1 has to be
answered in favour of the appellants herein.”
(underlining by us)
14.1 The next question considered was whether the finding of
fact arrived at by the High Court that the appellant therein did
not and could not have developed the amenity, calls for any
interference, especially in light of the statutory provisions and
the facts of the case. The statutory provisions in Section
126(1)(b) were adverted to on the approach that the authorities
ought to have in these matters and this Court observed as
under:
Page 64 of 86
“21. As we have noted earlier, clauses (a), (b) and (c)
were inserted by way of substitution in sub-section (1)
of Section 126 under Maharashtra Act 10 of 1994 with
effect from 25.03.1991.
22. As per Section 126(1), whenever the Planning
Authority or Development Authority finds after the
publication of a draft Regional Plan or a Development
Plan that any land is required or reserved for any of the
public purposes mentioned in the plan, such authority
may acquire the land for the said public purpose. This
acquisition can be made by three different methods,
indicated in clauses (a), (b) and (c). The methods of
acquisition prescribed in clauses (a), (b) and (c) of sub-
section (1) of Section 126, in simple terms are as
follows:—
(i) The acquisition may be through an agreement
entered into with the owner, by paying an amount
agreed to;
(ii) Alternatively, the acquisition may be by the grant
of FSI or TDR in lieu of any payment, along with
Additional FSI or Additional TDR against the
development or construction of the amenity on the
surrendered land at the cost of the owner; or
(iii) The acquisition may also be by requesting the State
Government to initiate the process of land
acquisition under the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
23. We are concerned in this case with the second
method of acquisition of land indicated in clause (b) of
sub-section (1) of Section 126. Under this clause, the
owner and the planning authority are granted the
leverage to agree that the compensation for the
acquisition of the land will be for a consideration, not
paid in the form of cash but granted in kind, in the
Page 65 of 86
form of two things, namely, (i) FSI or TDR for the area
of land surrendered; and (ii) additional FSI or
additional TDR against the development or
construction of the amenity on the surrendered land.
24. Once the parties are ad idem on the fact that the
case is covered by clause (b), then what is necessary to
be seen by Courts is : (i) whether the parties had
agreed to give/take FSI or TDR in lieu of the amount of
compensation?; and (ii) whether there was a valid claim
for the grant of additional FSI or additional TDR
towards the development or construction of the
amenity on the surrendered land at the cost of the
owner?.”
14.2 This Court observed therein that there was no dispute on
facts that the appellants therein had surrendered the land and
accepted TDR in lieu of compensation. The only question was
whether parties had satisfied the last limb of clause (b) which
reads as under:
“26. ……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,”14.3 It was observed that the owner of the land is under an
obligation to develop or construct the amenity on the
surrendered land at his cost and the Planning Authority has to
Page 66 of 86
reciprocate the same by granting additional FSI or additionalTDR. While considering the said issue, both on facts as well as
in law, this Court referred to the definition of the word
“amenity” and “development” in Section 2(2) and 2(7)
respectively of the Act and observed that the word “amenity”
means several things including recreational grounds in respect
of which the controversy arose in the said case. There was a
dispute as to whether the appellant therein had not developed
the recreational grounds. While considering the expression
“development”, it was observed that the same was of wide
import and in fact clause (b) of sub-section (1) of Section 126 of
the Act has used both the expressions, namely (i) development;
and (ii) construction. Therefore, the word “development” has to
be understood to mean any activity which may or may not
include construction. Therefore, the question in the said case
was, whether, the appellant therein had developed or
constructed any amenity which ought to be tested with
reference to the final DCR. While referring to the definition of
amenity in Regulation 2(7) which includes recreational grounds,
Page 67 of 86
reference was made to Regulation 34 and it was observed that
Appendix-VII was later renumbered as Appendix-VII-A vide
order dated 15.10.1997. It was observed that clauses (5), (6)
and (7) of the Regulation 34 was the substratum of the
controversy before the High Court.
14.4 Going through the entire gamut of correspondence
involved in the said case, it was held that all the activities
undertaken by appellant No.1 therein through the Architects till
handing over of the possession of the land were not towards the
development of amenity and the grant of additional TDR. All
these works were undertaken as part of the effort to make the
Municipal Corporation accept the surrender of land and to
grant TDR. On the facts of the said case, it was held that no
amenity was developed as required by law by appellants Nos.1
and 2 therein to be entitled to additional TDR. Therefore, on
facts, it was held that appellant was not entitled for additional
TDR. Accordingly, the view of the High Court was confirmed
and the appeal was dismissed.
Page 68 of 86
Yeshwant Jagannath Vaity:
15. In Yeshwant Jagannath Vaity, the facts were that the
respondents therein owned 10,000 sq. yards of land in Mulund
village, which came within the area of Greater Bombay. A
development plan was sanctioned for Greater Bombay in the
year 1957. The said land was shown as reserved for public
purpose of construction of a godown. However, the respondents
and four other co-owners entered into a private agreement to
handover possession of 10,000 sq. yards to the Municipal
Corporation of Greater Bombay (MCGB) for temporary use as a
truck terminal. The land was also to be used as a town duty
office. The possession was handed over on 18.09.1961. The
land was not put to any other use till November 1998.
Therefore, Writ Petition No.3437 of 1988 was filed seeking a
declaration that the land was not liable to be acquired which
resulted into a compromise between the parties in which MCGB
agreed to acquire and retain the area of 3500 sq. metres for the
purpose of establishing and constructing an export octroi office.
The respondents therein constructed the export office and also
Page 69 of 86
developed the surrounding area. The possession of the export
office and the courtyard was handed over to the MCGB for
which a possession receipt was also issued. An application was
made by the respondents for TDR in respect of the export office
being 3500 sq. metres equivalent of the 100 per cent of the
built-up area of the export office. However, insofar as the
additional transferable rights in lieu of the development of the
export courtyard surrounding the export office was concerned,
the same was restricted to 466.96 sq. metres being 15 per cent
of the built-up area of the courtyard.
15.1 The respondents not having received a favourable
response to their request filed a writ petition which was allowed
by the High Court. The High Court while granting the relief
relied upon the judgment of this Court in Godrej & Boyce I. In
the appeal filed by the MCGB, several contentions were raised
including the contention regarding the Circular dated
09.04.1996 having no bearing on Godrej & Boyce I, since it
was issued after the landowners had surrendered their plot of
land after construction of the roads as required by the
Page 70 of 86
Municipal Council while in the said case the said Circular was
issued prior to the respondents No.1 and 3 therein completing
the construction of an export office and asphalting of the
courtyard and handing over the possession. Several arguments
were advanced to distinguish the judgment of this Court in
Godrej & Boyce I. This Court observed that the works done by
the respondent therein was an amenity and the Circular dated
09.04.1996 did not have any bearing on the case as it was
issued after the compromise in the Writ Petition on 10.03.1992
and the issuance of the letter of intent dated 22.02.1995.
Accordingly, the appeal filed by the respondent MCGB was
dismissed.
15.2 The reasoning of this Court in the said judgment is
squarely applicable to these cases. This Court held that the
High Court was right in allowing the writ petition filed by the
respondent therein and granting 100% TDR as against the
development of the courtyard by asphalting the same.
Page 71 of 86
Delay and Laches:
16. However, most of the writ petitions which were filed by the
appellants herein were dismissed on the ground of delay and
laches by the Bombay High Court. We have already adverted to
the judgment of this Court in Godrej & Boyce II on the aspect
of abandonment of the claim. The contentions of learned senior
counsel and learned counsel for the appellants would not call
for a reiteration.
17. At this stage, we shall consider some of the judgments
relied upon by the learned senior counsel for the respective
parties.
On the question of discretion of courts in considering the
issue of delay and laches, this Court in Vidya Devi vs. State of
Himachal Pradesh, (2020) 2 SCC 569 (“Vidya Devi”) noted
as under,
“12.12. The contention advanced by the State of delay
and laches of the appellant in moving the Court is also
liable to be rejected. Delay and laches cannot be
raised in a case of a continuing cause of action, or if
the circumstances shock the judicial conscience of the
Court. Condonation of delay is a matter of judicial
discretion, which must be exercised judiciously and
Page 72 of 86
reasonably in the facts and circumstances of a case.
It will depend upon the breach of fundamental rights,
and the remedy claimed, and when and how the delay
arose. There is no period of limitation prescribed for
the courts to exercise their constitutional
jurisdiction to do substantial justice.”
(emphasis supplied)
17.1 On the question of the principles the Court should rely
upon when exercising the discretion to condone delay and
laches, the following judgments are instructive.
(a) In Dehri Rohtas Light Rly. Co. Ltd. vs. District Board,
Bhojpur, (1992) 2 SCC 598, this Court noted that:
“13… The principle on which the relief to the party on
the grounds of laches or delay is denied is that the
rights which have accrued to others by reason of the
delay in filing the petition should not be allowed to be
disturbed unless there is a reasonable explanation for
the delay. The real test to determine delay in such
cases is that the petitioner should come to the writ
court before a parallel right is created and that the
lapse of time is not attributable to any laches or
negligence. The test is not as to physical running of
time. Where the circumstances justifying the
conduct exist, the illegality which is manifest
cannot be sustained on the sole ground of laches.”
(emphasis supplied)
(b) In Tukaram Kana Joshi vs. Maharashtra Industrial
Development Corporation, (2013) 1 SCC 353, this Court
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held, albeit in the context of the State taking over possession ofland without any sanction of law, to the following effect:
“12… Our Constitution is an organic and flexible one.
Delay and laches is adopted as a mode of discretion to
decline exercise of jurisdiction to grant relief. There is
another facet. The Court is required to exercise judicial
discretion. The said discretion is dependent on facts
and circumstances of the cases. Delay and laches is
one of the facets to deny exercise of discretion. It is
not an absolute impediment. There can be
mitigating factors, continuity of cause action, etc.
That apart, if the whole thing shocks the judicial
conscience, then the Court should exercise the
discretion more so, when no third-party interest is
involved.”
(emphasis supplied)
(c) In Kazi Moinuddin Kazi Bashiroddin vs. Maharashtra
Tourism Development Corporation, 2022 SCC OnLine SC
1325, at para 26, this Court noted that, in matters relating to
payment of amount of compensation to land losers, if at all two
views are possible, the view that advances the cause of justice
is always to be preferred rather than the other view, which may
draw its strength only from technicalities.
17.2 On the question of abandonment or waiver of rights, this
Court in G.T. Lad vs. Chemical and Fibres of India Ltd.,
Page 74 of 86
(1979) 1 SCC 590 noted, albeit in the context of workmen
abandoning service, that “to constitute abandonment, there
must be total or complete giving up of duties so as to indicate
an intention not to resume the same”. It further noted that
such abandonment is always a question of intention.
17.3 Further, in State of Punjab vs. Davinder Pal Singh
Bhullar, (2011) 14 SCC 770, this Court dealt with the
doctrine of waiver. It held that, to constitute waiver, the person
who is said to have waived, must have intentionally abandoned
his rights with full knowledge after being fully informed of his
rights.
18. In the following Writ Petitions by the impugned order
dated 18.12.2018 the Bombay High Court observed as follows
and dismissed the Writ Petitions on the ground of delay and
laches.
“ (i) WP No.1898 of 2009 –
Kukreja Construction and Others vs. The State
of Maharashtra and Others.
35. In Writ Petition No.1898/2009, the petitioners’
land was reserved for 18.3 meters wide DP Road.
The petitioners surrendered the reserved land and
were granted TDR in lieu of the reserved land.
Page 75 of 86
Thereafter, the petitioners constructed DP Road as
claimed in the petition and a completion certificate
was issued on 19th August 1994. According to the
case of the petitioners, they carried out work of
storm water drain for which competition certificate
was issued 17th March 2003. According to their
case, the TDR in respect of the land was issued on
16th March 1994 and 5th April 2003. On 21st July
2003, the petitioners through their Architect applied
for grant of additional TDR under clause (6) of
Appendix-VII. But the application made by the
petitioner (Exhibit-I) shows that on 21st July 2003,
only 25% additional TDR was claimed in respect of
amenity of DP Road. It is not the case of the
petitioners that thereafter they followed the said
application by issuing reminders. For six years or
more, no claim was made for 100% TDR on account
of construction of the amenity. However, on 28th
August 2009, through their Architect, the
petitioners applied for grant of additional TDR for
the amenity equivalent to 100% of the area. The said
application was made only after the decision of the
Apex Court in the case of Godrej & Boyce
Manufacturing Co. Ltd. (supra) and the present
petition was lodged on 15th September 2009.
Therefore, in facts of the case, no relief can be
granted as for a period of more than six years after
surrender, no claim was made for 100% TDR.
(ii) WP No.1823 of 2009 –
Jitendra Amritlal Sheth vs. State of
Maharashtra and Others.
37. Now, we come to Writ Petition
No.1823/2012. In this case, the possession of DP
Road after its construction was handed over by the
petitioners to the Municipal Corporation on 5th
March 2005. On 24th February 2009, the petitioners’
Page 76 of 86
Architect for the first time applied for 100% FSI in
lieu of the constructed amenity. There was inaction
for more than 3 years and 11 months and claim for
100% additional TDR was not made. The averments
made in the petition show that on 18th November
2009, a reminder was issued. By communication
dated 7th December 2009, the proposal of the
Architect was specifically rejected. The petition was
affirmed on 30th July 2012 i.e. two years after the
prayer for grant of 100% TDR was turned down. The
explanation for delay given by way of amendment to
the petition is that on 7th March 2010, a file
containing correspondence and judgments of the
Supreme Court was handed over to the attorneys. It
is stated that amendment of 17th June 2010 to the
DCR was made available to the petitioners in July
2010. On 8th January 2011, the Legal Consultant of
the fourth petitioner by writing an email
enquired with the Solicitors whether draft was
ready. On 25th January 2011, it is claimed that the
draft was forwarded. Thereafter, on 18th July 2011,
a meeting was held between the petitioners, their
Legal Consultant and Architect. It is claimed that
the documents were furnished by the Architect to
their advocate on 15th June 2012 and, ultimately,
on 30th July 2012, the petition was filed. This is
hardly an explanation for delay of 2½ years,
especially when in the facts, of the case after
construction of DP Road, the possession of the same
was handed over on 5th March 2005. There is no
explanation for not claiming 100% TDR within three
years from that date. Even after entrusting the case
to the Advocate, there is a long delay. Hence,
considering the gross delay and laches which is not
at all explained, this is a case where a Writ Court
should not allow the party to invoke its extra
ordinary jurisdiction under Article 226 of the
Constitution of India.
Page 77 of 86
(iii) WP No.839 of 2015 –
Geeta alias Chandani Umesh Gandhi vs. The
State of Maharashtra and others.
38. In Writ Petition No.839/2015, the possession
of DP Road was handed over to the Municipal
Corporation on 20th May 2005. On 31st December
2006, 25% FSI/TDR in respect of the constructed
road was granted. On 1st December 2009, the
petitioner through her Architect requested to release
balance 75% TDR towards the amenity developed.
The perusal of the averments made in the petition
shows that after lapse of 4½ years thereafter, by a
letter dated 20th June 2014, the petitioner requested
the Municipal Corporation to issue balance 75%
TDR. Thereafter, there was a legal notice sent on 1st
December 2014. The petition was filed one year
thereafter in January 2015. There is absolutely no
explanation as to why there is a complete inaction
on the part of the petitioner from 1st December 2009
when the petitioner’s Architect applied for grant of
remaining 75% additional TDR till 20th June 2014
when similar request was made by the petitioner. As
there is no explanation for this inaction for a period
of more 4½ years and the delay involved thereafter,
this is not a fit case wherein a Writ Court should
exercise jurisdiction under Article 226 of the
Constitution of India.
(iv) WP No.2871 of 2015 –
Jameel A. Hussain and Others vs. State of
Maharashtra and Others.
39. In Writ Petition No.2871/2015, the
reservation of the land claimed by the petitioners
was for DP Road. The possession of the developed
portion of the reserved land was taken over by the
said Corporation on 29th July 2004. The completion
certificate was issued on 23rd August 2014. It is
Page 78 of 86
claimed in the petition that FSI in respect of
surrender of land was granted but FSI in respect of
amenity constructed thereon was never granted.
Going by the averments made in the petition,
though the petitioners claim to have surrendered
the reserved land with amenity on 29th July 2004,
the petitioners never applied for grant of 100% TDR
in respect of the amenity. Even after the decision of
the Apex Court in the case of Godrej & Boyce
Manufacturing Co. Ltd. (supra) which is of 6th
February 2009, the petitioners did not apply for
grant of additional FSI/ TDR in respect of amenity
surrendered in the year 2004 and for the first time
by a letter dated 17th February 2012, the petitioners
applied for grant of additional TDR. The proposal for
grant of additional TDR was rejected on 30th
January 2015. Thereafter the petition was filed.
Thus, after surrendering the reserved land on 29th
July 2004, the petitioners never claimed TDR in
respect of the amenity developed by them till 17th
February 2012. The application was made three
years after the decision of the Apex Court in the
case of Godrej & Boyce Manufacturing Co. Ltd.
(supra). Considering this conduct of the petitioners
which virtually amounts to abandonment of their
right, no relief can be granted to the petitioners in
this petition.
(v) WP No.2107 of 2016 –
M/s Byramjee Jeejeebhoy Pvt. Ltd. and Another
vs. The Municipal Corporation of Greater
Mumbai and Others.–
40. In Writ Petition No.2107/2016, according to
the case of the petitioners, they constructed DP
Road. They surrendered the reserved land on 5th
June 2007. Their Architects/ Licensed Surveyors
made an application on 4th September 2009 for
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grant of 100% additional TDR in the light of the
decision of the Apex Court. A legal notice was issued
by their advocate on 7th December 2009. Thereafter,
the petitioners took no steps and after a gap of 6½
years on 21st July 2016, the petitioners called upon
the said Corporation to grant additional FSI/TDR.
The correspondence made by the petitioners in the
year 2009 was based on the decision of the Apex
Court in the case of Godrej & Boyce
Manufacturing Co. Ltd. (supra). The petitioners
sought to rely upon the subsequent decision of the
Apex Court dated 5th May 2016 in the case
of Municipal Corporation of Greater Mumbai v.
Natvar Parikh & Co. Pvt. Ltd. (Civil Appeal
No.1479/2015) which followed the decision of the
Apex Court in the case of Godrej & Boyce
Manufacturing Co. Ltd. (supra). There is no
explanation offered in the petition as to why there
was complete inaction on the part of the petitioners
from 2009 to 2016. Therefore, considering this
conduct of the petitioners, they are dis-entitled to
any relief.
(vi) WP No.2170 of 2016 –
Girdharlal D. Rughani Alia Thakkar H.U.F. and
Another vs. The State of Maharashtra and
Others.–
41. In Writ Petition No.2170/2016, the case of the
petitioners is that on 20th October 1995 they handed
over the possession of their land reserved for DP
Road to the said Corporation. They claimed that
after completing the construction of DP Road on 20th
October 1994, a completion certificate was granted
by the Municipal Corporation. It is not the case of
the petitioners that thereafter they applied for grant
of additional 100% TDR in respect of the amenity
developed. Only on 5th August 2014 (i.e. ten years
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after developing the amenity) that the petitioners
applied for grant of additional TDR through their
Architect. For a period of 10 years, the petitioners
never claimed 100% additional TDR in respect of the
amenity. Even thereafter, no action is taken and the
present petition is filed in July 2016. Considering
the conduct of the petitioners, they are not entitled
to any relief.
(vii) WP No.384 of 2017 –
Oberoi Realty Limited and Another vs. Municipal
Corporation of Greater Mumbai and Others.–
42. In Writ Petition No.384/2017, the case of the
petitioners is that between 2004 and 2008, they
developed seven DP Roads and handed over the
possession thereof to the said Corporation. However,
they made representation for the first time on 10th
June 2016 claiming additional TDR in respect of
amenity developed. The representation was rejected
on 30th November 2016 by the said Corporation.
Thus, even after the decision in the case of Godrej
& Boyce Manufacturing Co. Ltd. (supra), the
petitioners did not apply for grant of additional TDR.
The petitioners sought additional TDR after lapse of
eight years and more. Therefore, for a period of eight
years or more, the petitioners never claimed
additional TDR. Hence, considering the delay and
laches on the part of the petitioners, no relief can be
granted.
(viii) WP No.541 of 2017 –
Nanabhoy Jeejeebhoy Pvt. Ltd. and Another vs.
The State of Maharashtra and Others. –
43. In Writ Petition No.541/2017, the case of the
petitioners is that there were eleven reservations on
their property for DP Roads. The petitioners have
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referred to the said reservations as DP Road-I to DP
Road-XI. According to the case of the petitioners,
after developing the amenities, the possession of
DP Roads was handed over to the said Corporation
on 13th April 2004, 20th March 2001, 27th March
2002, 6th September 2001, 13th February 2006,
27th October 1997, 27th October 1997, 29th October
1997, 21st December 2002, 22nd May 2002 and 14th
August 2002 respectively. For the first time
additional TDR was claimed by the petitioners by
making application on 11th July 2014. Thus, in all
cases except one, the possession was handed over
after the development of DP Roads before the year
2003. In some cases, the possession of DP Road
was handed over in the year 1997. In one case, the
possession was handed over in the year 2006.
Thus, after lapse of several years after handing
over possession of DP Roads i.e. in 2014, belatedly
a request was made for grant of additional TDR.
The request was made after a gap of about 8 to 13
years for which there is no explanation. Thus, the
petitioners by their conduct have virtually
abandoned their claim for additional FSI/TDR in
respect of amenity.”
In all these cases, we find that the writ
petitioners/appellants herein had surrendered the reserved
land and had also been granted 25% TDR and a representation
for additional TDR was made after the judgment of this Court in
Godrej & Boyce I and in some cases, the representation was
made early but in other cases, the representations were made
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after some time. It is also noted in Civil Appeal No.1748 of
2015, in the case of Natwar Parikh, this Court had stated
that the decision in Godrej & Boyce I could not be revisited
inasmuch as the Mumbai Municipal Corporation could not seek
to reargue the matter. Also, the facts in each case on the
questions of delay was to be considered as observed by this
Court. The issue of abandonment of claim has also been
considered and negatived in the judgment of this Court in
Godrej & Boyce II.
We have referred to the decisions of this Court where the
question of delay and laches would not arise in matters such as
the present cases. When relief in the nature of compensation is
sought, as in the instant case, once the compensation is
determined in the form of FSI/TDR, the same is payable even in
the absence of there being any representation or request being
made. In fact, a duty is cast on the State to pay compensation
to the land losers as otherwise there would be a breach of
Article 300-A of the Constitution. As rightly contended by the
learned senior counsel for the writ petitioners/appellants
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herein, the respondent-Mumbai Municipal Corporation has not
established that owing to a short delay even if it has occurred
in any of these cases owing to uncertainty in law, the
Corporation has been prejudiced by the same or that the third-
party rights had been created which could not be disturbed
owing to delay or laches. The calculation of period of delay in
the table submitted by learned senior counsel for the Mumbai
Municipal Corporation is not acceptable in view of our
discussion above. The decisions referred to by us above would
clearly indicate that neither the doctrine of delay and laches nor
the principle of abandonment of claim or waiver would apply in
these cases. Rather the delay has occurred on the part of the
Mumbai Municipal Corporation in complying with the
Regulations insofar as these appellants are concerned.
18.1 In view of the aforesaid discussion, we hold that the
Bombay High Court was not right in dismissing the writ
petitions on the ground of delay and laches. Hence, those
portions of the impugned order of the High Court are set aside.
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19. We also do not find any merit in the three appeals filed by
the Mumbai Municipal Corporation. Having regard to the earlier
judgments of this Court, we find that the reasoning of the High
Court on merits in the three impugned decisions discussed
above is just and proper which would not call for any
interference by this Court.
20. Consequently, the civil appeals filed by the writ
petitioners/appellants herein are allowed as under:
(i) Those portions of the impugned order dated
18.12.2018 by which the writ petitions were
dismissed on the ground of delay and laches are
set aside and the respondent Mumbai Municipal
Corporation is directed to consider the case of
those writ petitioners/appellants herein in light of
the judgments of this Court in Godrej & Boyce I
and release the balance FSI/TDR to the
appellants.
(ii) However, in the case of appellant-Kukreja
Construction company and others, the Mumbai
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Municipal Corporation is directed to consider the
nature of the amenities constructed and thereafter
to consider their case for additional FSI/TDR.
(iii) The said exercise shall be carried out as
expeditiously as possible and within a period of
three months from today.
20.1 The Civil Appeals filed by the Mumbai Municipal
Corporation are dismissed and the cases of the respondents in
those civil appeals shall be considered in terms of the
judgments of this Court in Godrej & Boyce I and the balance
FSI/TDR shall be released to the respondents therein within a
period of three months from today.
Parties to bear their respective costs.
…………….………………………………J.
(B.V. Nagarathna)
…………….………………………………J.
(Nongmeikapam Kotiswar Singh)
New Delhi;
September 13, 2024.
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