M/s. Aswani Associates v. The State of Maharashtra

2. The petitioners state that on 30th September 1999, the Development Plan was sanctioned under the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”). In the said plan, Reservation No. 361 (Garden) and an 18-metre-wide D.P. Road (“the reservation”) was imposed on the petitioners’ land admeasuring approximately 7000 sq. metres. The petitioners initially had development rights in the property and in the year 2013 they became owners of the land. From 31st January 2013 to 27th January 2016 the petitioners issued five notices under Section 127 of the MRTP Act calling upon the respondents to acquire the reserved land upon expiry of 10 years from the sanction of the Development Plan. Although the initial demand was for compensation, on 20th April 2016, the petitioners addressed a letter to respondent no. 5 seeking TDR in lieu of compensation for surrender of the said land.

3. On 13th July 2016, respondent no. 5 prepared a report proposing grant of TDR to the extent of 12,696.48 sq. metres to the petitioners in accordance with the notification dated 28th January

2016. The following day, the respondent no.5 issued a public notice inviting objections to the proposed grant of TDR. On 7th October 2016, the TDR Committee of the respondent no.3 approved the proposal, subject to the condition that the petitioners shall pay the Nazarana to the State Government for non-agricultural use of the land, with the permission of the Collector.

4. The petitioners surrendered 5949.88 sq. metres of land acting on the directions of respondent no. 5 and the recommendations of the TDR Committee. The surrender was effected by executing and registering a possession receipt on 14th October 2016, confirming transfer of possession of the land to the respondent no.3. On 27th July 2017, the petitioners paid Nazarana of Rs. 1,70,88,055/- by bank transfer. Following the payment, the Additional Collector, Pune, by order dated 1st August 2017, granted permission for surrender of the land in favour of respondent no. 3 with certain conditions.

5. Mr. Godbole, the learned counsel for the petitioners submitted that in terms of the notification dated 28th January 2016 issued under Section 37(1)(AA) of the MRTP Act, the petitioners were entitled to TDR equivalent to twice the area of the surrendered land. Thus the petitioners are entitled to the normal TDR quantum of 12,696.48 sq. metres. He submitted that the petitioners have paid the requisite Nazarana as demanded, surrendered the land in question to respondent no.3 on 14th October 2016, and altered their position by acting on the representations and assurances extended by the respondents. According to him, although the entire land has been surrendered, respondent no. 3–Corporation has granted only 50% of the TDR entitlement of the surrendered land. He relied upon the doctrine of promissory estoppel, contending that had the petitioners been informed that they would not receive their entitlement of two times the TDR, they would not have surrendered the land. It is submitted that thereafter the land has been developed by the respondent no.3 and a garden has been constructed thereon, and therefore the respondents, having taken the benefit of the surrender, are estopped from denying the promised balance TDR benefits to the petitioners. He submitted that the government directive dated 14th March 2017 could not have been relied upon to restrict the petitioners’ entitlement.

6. Mr. Deepak R. More, the learned counsel for the respondent nos. 3 to 6 relied upon the affidavits-in-reply dated 25th June 2024 and 28th August, 2024 and denied the petitioners’ entitlement. It is submitted that the Nazarana amount paid by the owners is not related to the generation of TDR. The TDR is generated as per the Development Control Rules and directives given by the State Government from time to time. It is submitted that the impugned order dated 17th October 2017 was as per the directives dated 14th March 2017 under section 154 of the MRTP Act and thereafter notice was published under section 37 of the said Act. It is submitted that there is no violation of any law or legal right vested in favour of the petitioners and the petition ought to be dismissed.

7. We observe that it was around 26th / 27th September 2017, that the TDR Committee of the respondent no.3 prepared a new Intent that the petitioners are not entitled to the TDR of 12696.48 sq. mts. and are now entitled to only 50% of the quantum, i.e. an area of 6490.41 sq. mts. The petitioners by reserving their right to challenge the orders of the respondent no.3 for the full entitlement, applied for the grant of the 50% TDR.

8. On 10th October 2017, the TDR Committee prepared a final report concluding that the petitioners are entitled to only 50% of the TDR quantum. Accordingly the Development Rights Certificate for 6490.41 sq. metres was issued on 17th October 2017 by the respondent nos. 4 and 5, thereby curtailing 50% of the TDR of the petitioners, which is challenged in this writ petition.

9. In our view, the action of the respondents in (i) executing and registering a possession receipt on 14th October 2016; (ii) accepting the payment of Nazarana on 27th July 2017; and (iii) granting permission for surrendering the land in favour of the respondent no.3 on 1st August 2017 are all actions that are binding on the respondents. Having taken the aforesaid steps it is now not open to the respondents to resile from its reciprocal obligations and deny the petitioners their full entitlement as per the State Government notification dated 28th January 2016. It is not open for the respondents to unilaterally modify the condition on the basis of the State Government directives dated 14th March 2017 issued under section 154 of the MRTP Act, and curtail the TDR to 50% of the petitioners’ entitlement. This action is arbitrary and cannot be sustained. If the State Government directives of 14th March 2017 were indeed applicable, the respondents ought not to have accepted the surrender of the petitioners. It cannot retrospectively alter its position to the detriment of the petitioners, who have otherwise complied with their obligations. It is pertinent to note that the directives dated 14th March 2017 expressly state that the provisions of the directives shall have effect from the date of publication in the Gazette. It is wellsettled that any statute which takes away or impairs vested rights acquired under existing law, or which creates a new obligation, imposes a new duty, or attaches a new disability in respect of past transactions, is presumed to operate prospectively. The same principle applies to administrative or executive orders and circulars, which ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. Even assuming that the directives are applicable, they cannot operate retrospectively. At the time of surrender itself the respondent did not inform the petitioners that the notification dated 28th January 2016 will not apply and it will be the circular of 14th March 2017 which will govern the surrender of land. The Hon’ble Supreme Court in BSNL v. Tata Communications Ltd., (2022) 20 SCC 96 held that: “33. It is a settled principle of law that it is the Union Parliament and State Legislatures that have plenary powers of legislation within the fields assigned to them, and subject to certain constitutional and judicially recognised restrictions, they can legislate prospectively as well as retrospectively. Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject. By a retrospective legislation, the legislature may make a law which is operative for a limited period prior to the date of its coming into force and is not operative either on that date or in future.

34. The power to make retrospective legislations enables the legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act, but at the same time, administrative/executive orders or circulars, as the case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the legislature in the statute. Keeping in mind the aforestated principles of law on the subject, we are of the view that applicability of the Circular dated 12-6-2012 to be effective retrospectively from 1-4-2009, in revising the infrastructure charges, is not legally sustainable and to this extent, we are in agreement with the view expressed by the Tribunal under the impugned judgment”.

10. It is also settled law that where the government makes promise knowing and intending that it would be acted upon by the promisee and where the promisee alters his position then the government is bound by the same and the promise would be enforceable against the government at the instance of the promisee notwithstanding that there is no formal contract as required by Article 299 of the Constitution of India. The doctrine of promissory estoppel is well established as held by the Hon’ble Supreme Court in its judgments, including in “A.U. Tayyaba v. Union of India” (2023) 5 SCC 688, the relevant portion of which reads as under:- “29. A person is said to have a reasonable or legitimate expectation if a representation or a promise made by an authority, either expressly or impliedly, gives room for such expectation in the normal course. While applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. In State of Jharkhand v. Brahmputra Metallics Ltd., this Court speaking through one of us (D.Y. Chandrachud, J.) elaborated on the doctrine of legitimate expectation in the following terms: (SCC para 50)

11. In our view, the order dated 14th October 2017 passed by the respondent no.5 denying the balance entitlement of 50% TDR on the ground that after modification of the sanctioned Development Plan, the land fell within the flood-line area cannot be accepted. This cannot be done by virtue of a subsequent order. The petitioners have fulfilled every compliance required in law, and their rights cannot now be defeated by a subsequent executive order. If that was intent, the respondents ought not to have accepted the possession of the land. For the aforesaid reasons, Writ Petition No.4896 of 2019 is partly allowed in terms of prayer clauses (a), (b) and (c) which read as under:- “(a) This Hon’ble Court be pleased to issue writ of mandamus, or a writ, order or direction in the like nature or any other appropriate writ, order or direction, thereby quashing and setting aside the order dated 17/10/2017 passed by the Respondent No.3 i.e. Deputy Director of Town Planning and Respondent No.5 i.e. Municipal Commissioner, thereby curtailing 50% of TDR/Development Right Certificate of the Petitioners. (b) This Hon’ble Court be pleased to issue writ of mandamus, or a writ, order or direction, thereby directing the Respondent Corporation to grant 12,696.48 Sq. Mtrs. Of TDR/Development Right Certificate in favour of the Petitioners i.e. as per the rules and regulations applicable at the time of possession of the land.

(c) This Hon’ble Court be pleased to issue writ of mandamus, or a writ, order or direction, to quash and set aside the directives dated 14/03/2017 issued by the State Government.” [GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE]