Bholenath Developers Ltd. v. The State of Maharashtra

13. Mr. Manek then invited our attention to Clause 4.1.25 and Clause 7.16 of the Notification, from which he pointed out that the same clearly provided that the entitlement to additional TDR was only after the surrender of the land and that it was incumbent upon Respondent No.3 (MCGM) to verify and satisfy qua the ownership and title of said plot. Mr. Manek submitted that Clause 4.1.2, read with Clause 7 of the said Notification, made it clear that a claim for TDR could be considered when the subject property was surrendered to 5 4.1.[2] DRC shall be issued only after the land is surrendered to the Municipal Corporation; free of cost and free from encumbrances and after levelling the land to the surrounding ground level and after constructing/erecting a 1.[5] m. high compound wall/fencing i.e. brick/stone wall up to 0.60 mt above ground level and fencing above that up to remaining height with a gate, at the cost of the owner and to the satisfaction of the Municipal Commissioner. Provided that, if on certain lands such construction/erection of compound wall/fencing is prohibited or restricted by any regulation, then quantum of Tranferable Development Rights (TDR) shall be reduced as prescribed in proviso to Clause 4.1.1. Provided further that such construction/erection of compound wall/fencing shall not be necessary for area under Development Plan roads. In such cases TDR equivalent to entitlement as mentioned in regulation no.4.1.[1] shall be granted without any reduction. 6 7.0 VESTING OF LAND 7.[1] The Commissioner, before issuing DRC, shall verify and satisfy himself that the ownership and title of the land proposed for surrender is with the applicant, and get the Record of Right to be corrected in the name of Planning Authority. 16th Respondent No.3 (MCGM) without any encumbrances. He submitted that in the present case, the land was admittedly surrendered to Respondent No.3 (MCGM) by the Petitioners only on 22nd March 2019, which was (i) well beyond one year from the date of the said Notification and (ii) was also after the DCPR 2034 had come into force. He submitted that, therefore, clearly, the provisions of the said Notification would not apply to the Petitioners.

14. Mr Manek then invited our attention to the Petitioners’ application dated 24th January 2017 and submitted that the same was absent of any clarity on the area of the said plot and the necessary details regarding access to the said plot. He pointed out that all of these were vital to determine whether the Petitioners would, in fact, be eligible for the grant of incentive TDR under the said Notification. He then submitted that the Petitioners’ application dated 24th January 2017 being inchoate and incomplete would not, therefore, make the Petitioner 16th eligible for the grant of incentive TDR under the said Notification.

15. Mr. Manek pointed out that the Petitioners’ reliance upon its architect’s letter dated 3rd May 2018 was also entirely misplaced. He pointed out that Respondent No.3 (MCGM) had vide its letter dated 20th July 2018, in response to the Petitioners’ architect’s letter, had pointed out that the said plot was not inter alia accessible from the Municipal Road and there was also an ambiguity in the area of the said plot. He pointed out that by the said letter, it was brought to the Petitioners’ notice that once all these lacunae in the Petitioners’ application were filled in, the application would be processed on merit. Mr. Manek submitted that the Petitioners had deliberately not mentioned this letter in the body of the Petition or dealt with the same.

16. Mr. Manek then submitted that since the new Regulation had come into force on 1st September 2018 and the said plot had neither been surrendered to nor 16th vested in Respondent No.3 (MCGM) before 1st September 2018, no incentive TDR could be issued to the Petitioners in terms of the said Notification. He pointed out that possession of the said plot was admittedly handed over to Respondent No.3 (MCGM) only on 22nd March 2019. He also pointed out that the Petitioners had executed the relevant indemnity bond and agreement of permanent right of way on 23rd March 2019 and 11th April 2019 respectively, which was much after DCPR 2034 had come into force. Thus, he submitted that it was the provisions of DCPR 2034 that would apply and not the notification. He submitted that the Petitioners’ contention that Respondent No. 3 was retrospectively applying DCPR 2034 was therefore entirely misconceived and untenable. He submitted that the Petitioners’ reliance upon the judgements in the case of J. S. Yadav (supra) and Vishwas Bajirao Patil (supra) was also, therefore, wholly inapplicable and would be of no assistance to the Petitioners. 16th

17. Mr. Manek then equally submitted that the Petitioners’ reliance upon the judgement of this Court in the case of Apurva Natvar Parikh & Co. Private Limited (supra) was also of no assistance to the Petitioners. He pointed out that, in fact, the judgement amplified the Respondents' case since the same expressly held as follows, viz. “54. The contention of the learned Advocate General based on the decision of the Apex Court in the case of Howrah Municipal Corporation v. Ganges Rope Co. Ltd. (supra) was that where applications are pending for grant of benefit in terms of clause (6) of Appendix-VII on 16th November 2016, they will be governed by the impugned notification. In the said decision in the case of Howrah Municipal Corporation v. Ganges Rope Co. Ltd. (supra), it was held that when application for grant of building permission is made, the same has to be decided in accordance with the rules prevailing on the date the application is considered and not the date on which it is made. With greatest respect, the application for grant of additional TDR made under clauses (5) and (6) of Appendix-VII in respect of a land surrendered by the owner or lessee on which he has constructed the amenity at his own cost cannot be equated with an application made for grant of building permission. In case of application invoking clause (6) of Appendix-VII, the condition precedent for grant of additional FSI is 16th already complied with by spending considerable amount for developing amenity. The acquisition under clause (b) of sub-section (1) of section 126 of the MRTP Act can be made only by mutual agreement and, therefore, it is open to the Municipal Corporation not to accept surrender of the land and in such a case, recourse can be taken to clause (a) or (c). In cases where such surrender has been accepted by the Municipal Corporation, a right accrues to the owner or lessee to get compensation in terms of clause (b) of subsection (1) of section 126 of the MRTP Act as per DCRs prevailing on the date of surrender as the surrender takes place by a mutual agreement. In fact, on surrender, the vesting in the said Corporation is complete. After having accepted the surrender, if the Municipal Corporation refuses to give TDR as per the prevailing DCR on the date of surrender or on the date of completion of construction of amenity, it will amount to violation of the right under Article 300A of the Constitution. Hence, the argument of retrospective operation cannot be accepted.

59. An additional FSI or TDR in term of clause (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 17th June 2010, if there is a 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 road as per Regulation 33(1) as amended. Therefore, the right to get FSI/TDR accrues at the time of surrender. But on the 16th ground of delay and laches, a Writ Court can refuse to enforce the right. We have already held that the decision of the Apex Court in the case of Howrah Municipal Corporation v. Ganges Rope Co. Ltd. (supra) will have no application to the case of grant of TDR. The reason being is that the provision in DCR for grant of TDR against surrender of reserved land or surrender of reserved land after developing the amenity thereon will have a direct nexus with clause (b) of sub-section (1) of section 126 of the MRTP Act. In a sense, the additional FSI or TDR is payable by way of compensation under clause (b) of sub-section (1) of section 126. Therefore, the argument that the notification dated 16th November 2016 will have retroactive operation in the sense that it will apply to all pending applications for grant of TDR cannot be accepted as the right accrues on the surrender of the land. Therefore, now we turn to the facts of individual cases.” (emphasis supplied) Basis the above, he submitted that there was no manner of doubt that the date which is to be considered for giving incentive TDR would be the date of surrender of the property in question and not the date on which such proposal was made.

18. Mr. Manek submitted that the Petitioners had failed to demonstrate as to how, in these circumstances, 16th there was a concluded contract between Respondent No.3 (MCGM) and thus reliance by the Petitioners upon the judgement of this Court in the case of Shree Vinayak Builders And Developers, Nagpur (supra) would be of no assistance to the Petitioners since the judgement in the said case made it clear that as per section 126(1)(b) of MRTP Act, a the right in favour of the Petitioner would only accrue on surrender of land or communication of acceptance of the condition to surrender the land, after approval of proposal for grant of TDR. Basis this, he submitted that in the facts of the present case, the land was neither surrendered before DCPR 2034 was notified nor had Respondent No.3 (MCGM) approved the proposal for the grant of TDR before DCPR 2034 had come into force.

19. Mr. Manek then invited our attention to Regulation 32 of the DCPR 2034 which he submitted replaced Regulation 34 of the DCR 1991. From Regulation 32 of the DCPR 2034, he pointed out that the same specifically provided grant of “additional/incentive 16th Transferable Development Rights (TDR) to the extent of 10% and 5% of surrendered land area shall also be allowed to the land owners who submit the proposal for grant of Transferable Development Rights (TDR) and if land is surrendered to MCGM within 24 months and 36 months respectively from the date of coming into force of these regulations”. He thus submitted that Regulation 32 of the DCPR 2034 now made explicit what was previously implicit in Regulation 34 of DCR, 1991, i.e., there has to be surrender of the subject property to avail of the benefit of TDR.

20. Mr. Manek then submitted that since the Petitioners had surrendered the said plot to Respondent No.3 (MCGM) on 22nd March 2019, which was within 24 months from 2018, the Petitioners were entitled to only 10% of TDR and not 20% as claimed by the Petitioner. It was thus he submitted that because the Petitioners had failed to show (a) a concluded contract; (b) that Respondent No.3 (MCGM) had retrospectively applied the 16th new Regulation and (c) any vested right, this Petition deserves to be dismissed.

21. We have heard Learned Counsel for the Parties considered the rival contentions, the case law cited, as also the relevant provisions of the said Notification and the MRTP Act and have no hesitation in holding that the Writ Petition is entirely misconceived for the following reasons, viz.

Notification read with Section 126 (1)(b) of the MRTP Act makes clear that the entitlement to the incentive TDR would only be upon surrender of the land in question and not merely on the filing of an Application within one year from the date of the said Notification. In our view, this was put beyond the realm of any doubt by the Division Bench of this Court in the case of Apurva Natvar Parikh & Co. Private Limited (supra), in which this Court specifically held “the right to get FSI/TDR accrues at 16th the time of surrender”. Hence, the Petitioners’ contention that a vested right had accrued in favour of the Petitioners on the filing of the said Application is also without any substance since, in fact, there was no surrender of the land at any time prior to the DCPR 2034 coming into force. The vested right, if any, might only have accrued in favour of the Petitioners had the Petitioners (i) surrendered the land or (ii) entered into an Agreement with Respondent No. 3 before the coming into force of the 2034 DCPR. Hence, the judgements in the case of Apurva Natvar Parikh & Co. Private Limited (supra) and Shree Vinayak Builders And Developers, Nagpur (supra) upon which the Petitioner placed reliance would thus have absolutely no application to the Petitioners’ case. In fact, the observations in Apurva Natvar Parikh & Co. Private Limited (supra) support the Respondent’s case. 16th

2034. As we have already noted above, for any such vested right to have accrued in favour of the Petitioners, what was paramount was for the Petitioners to have, in fact, surrendered the said land. This surrender happened only on 22nd March 2019, after the DCPR 2034 had come into force. Hence, clearly, the said Notification would not apply to the Petitioners’ Application. Given that we have held that there was, in fact, no retrospective application of DCPR 2034, the judgement in the case of J S Yadav (supra) and Vishwas Bajirao Patil (supra) upon which the Petitioners placed reliance would be of no application. 16th

22. As referred to above, Clause 4.1.[2] and Clause 7.[1] of the Notification provide that the entitlement to additional TDR was only after the surrender of the land and that it was incumbent upon Respondent No.3 (MCGM) to verify and satisfy qua the ownership and title of said plot. Clause 4.1.2, read with Clause 7 of the said Notification, makes it clear that a claim for TDR could be considered when the subject property was surrendered to Respondent No.3 (MCGM) without any encumbrances. In the present case, the land was admittedly surrendered to Respondent No.3 (MCGM) by the Petitioners only on 22nd March 2019, which was (i) well beyond one year from the date of the said Notification and (ii) was also after the DCPR 2034 had come into force. Given such undisputed facts, the contentions about retrospectivity or entitlement cannot be accepted.

23. The Petitioners’ reliance upon its architect’s letter dated 3rd May 2018 was also entirely misplaced. Respondent No.3 (MCGM) had vide its letter dated 20th July 2018, in response to the Petitioners’ architect’s letter, 16th pointed out that the said plot was not inter alia accessible from the Municipal Road and there was also an ambiguity in the area of the said plot. It was brought to the Petitioners’ notice that once all these lacunae in the Petitioners’ application were filled in, the application will be further considered after complying with following requirements. The requirements or requisitions were never complied with before the notification, allowing additional TDR/FSI entered force. The compliances, if at all, were on or about 22nd March 2019, when the Petitioners actually surrendered the land in question. In such facts, none of Mr. Mone’s contentions, including the contention based on the concluded contract theory, could be accepted.

24. Hence, for the aforesaid reasons, the Petition is dismissed. There shall be no order for costs. (Arif S. Doctor, J) (M. S. Sonak, J) 16th