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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6216 OF 2014
1. CREDAI-PUNE Metro
Through its Secretary, Mr. Anuj Bhandari, Having its office No.T-1, T-2 and T-3, 3rd
Floor, Nucleus Jeejeebhoy Towers, Church Road, Pune - 411 001.
2. Atharwa Housing.
2128 Sadashiv Peth, Vijaynagar Colony, Pune-411 030, through its Proprietor
Shri. Ashwin Trimal.
3. Naiknavare Developers Pvt. Ltd.
1204/4, Ghole Road, Shivaji Nagar, Pune-411 004, Through its Director Shri. Hemant
Naiknavare 4. Hindumal Balmukund
Investment Co. Pvt. Ltd. Lohia Jain
House, 893/6, Bhandarkar Road, Deccan Gymkhana, Pune - 411 004.
5. Aditya Constructions
619, Sadashiv Peth, Bajirao Road, Pune-411030, through its Partner
Shri. Shantilal Kataria.
6. Camelia Associates
PSC House, CTS No. 111+111/2, Anand Colony, Near Suvarnarekha
Dining Hall, Old Karnataka High School
Lane, Off Prabhat Road, Pune - 411 004, through its Director
Shri. S. P. Paranjape.
7. Paranjape Schemes (Construction)
Ltd., PSC House, CTS No.111+111/2,
Dining Hall, Old Karnataka High School
Lane, Off Prabhat Road, Pune-411 004, Shri. S. P. Paranjape.
8. Shri Bal Land Developers Pvt. Ltd., PSC House, CTS No. 111+111/2, Dining Hall, Old KarnatakaHigh School
Lane, Off Prabhat Road, Pune-411 004, Shri. S. P. Paranjape ... Petitioners
Secretary of Urban Development ]
Department, Mantralaya, Mumbai.
2. The Pune Municipal Corporation A
Statutory Body constituted under the
Provisions of BPMC Act, 1949, Having its office at Shivaji Nagar, Pune."
3. The Commissioner, Pune Municipal Corporation, Having his office at Pune Municipal Corporation at
Shivaji Nagar, Pune …Respondents
1. Shri Amar Harishchandra Manjrekar
Age -62 years, Occupation - Business
Proprietor of M/s. Amar Builders
Having office at Amar House, Near
Goodluck Chowk, 892, Bhandarkar
Road, Pune.
2. Shri Vikram Vyankatrao Gaikwad
Age-34 years, Occupation - Business
Having office at 19, Shrikrishna Heights, Gajanan Co-operative Society, Ganeshkhind Road, Shivaji Nagar, Pune-411016.
3. Mrs. Mangal Tukaram Kale
Age-__ years, Occupation - Business
R/at. Vibhakori, Shankar Nagar, Taluka
Malshiras, District Solapur. ... Petitioners
A body incorporated under the provisions of Maharashtra Provincial
Municipal Corporation Act, 1949, Having office at Shivaji Nagar, Pune.
2. The Commissioner, Pune Municipal Corporation, having its office) at Pune Municipal Corporation
Building, Shivaji Nagar, Pune.
3. The State of Maharashtra
Through the Principal Secretary, Urban Development Department, Mantralaya) Mumbai. …Respondents
1. M/s. Aditya Shagun Developer A partnership firm registered under the provisions of the Indian Partnership Act, 1932 having its office at 619, Sadashiv
Peth, Pune 411 030. ... Petitioners
Principal Secretary of Urban
Development Department, Mantralaya, Mumbai.
2. The Pune Municipal Corporation,
3. The City Engineer, Town Planning
Pune Municipal Corporation, Having its office at Shivaji Nagar, Pune.
…Respondents
1. Gera Developments Pvt. Ltd., Through its Managing Director
Mr.Rohit Gera, Having office at : 200, Gera Plaza, Boat Club Road, Pune Maharashtra ... Petitioners
Through its Principal Secretary
Urban Development Department, Mantralaya, Mumbai -400032
Maharashtra.
2. The Pune Municipal Corporation
Through its Municipal Commissioner, Shivaji Nagar, Pune Maharashtra
3. The Municipal Commissioner, Shivaji Nagar, Pune, Maharashtra …Respondents
1. Baroon Shankar Ghosh, of Mumbai, Indian inhabitant, residing at 17, Golf Link, Third Floor, Pali Hill Extension, Union Park, Khar, Mumbai 400 052.
Nos. 1 and 2 by the hand of their duly
Constituted Attorney Suresh Jayantilal
Ajmera, of Mumbai and Pune, Indian inhabitant, having his Pune address at
102, Pundol Apartments, 160, M. G.
Road,) Camp, Pune 411 001.
3. Ramchand Mohandas Rijwani, residing at 305, Sea Green Co-operative
Housing Society Ltd., Seven Bunglows, Off J. P. Road, Andheri (West), Mumbai 400 061.
4. Mrs. Renuka D. Narsian residing at 501, Naval Society, Union
Park. Bandra (West), Mumbai 400 050.
5. Peshwa Corporation, a registered partnership firm, having its address at
595/D, Narendra Villa, Dr. Ambedkar
Road, Matunga (C.R.), Mumbai 400 019. ... Petitioners
2. The Pune Municipal Corporation, a statutory body constituted under the
Maharashtra Provincial Municipal
Corporation Act, 1949 and having its office) at Shivaji Nagar, Pune, Maharashtra State.)
3. The Municipal Commissioner,
Municipal Corporation, Shivaji Nagar, Pune, Maharashtra State …Respondents
Mr. Atul Damle, Senior Advocate a/w Ms. Akansha Patil, Mr. Dipesh Yadav i/b. Narayanan & Narayanan for the Petitioner in
WP/7701/2016.
Mr. Dorman Dalal i/b. Mr. Sidheshwar Biradar for the Petitioner in WP/1863/2016.
Mr. Tejash Deshmukh a/w. Mr. Anshuman Deshmukh for the
Petitioner in WP/8465/2017
Ms. Manjiri S. Parasnis for the Petitioner in WP/5085/2015.
Mr. A. S. Alaspurkar AGP for the State.
Mr. A. M. Kumbhakoni, Senior Advocate i/b. Mr. Abhijit P.
Kulkarni a/w. Mr. Krushna Jaybhay a/w Ms. Sweta Shah for the
Respondent Nos. 2 & 3 Corporation in WP/6216/2014 &
WP/1863/2016
Mr. R.S. Khadapkar for Respondent Nos. 1 and 2 in
WP/8465/2017
Mr. Vishwanath Patil for Respondent Nos. 1 and 2 in
WP/5085/2015 and Respondent Nos. 2 and 3 in WP/7701/2016
Nawale
JUDGMENT
1. These Writ Petitions are filed under Article 226 of the Constitution of India thereby challenging the order dated 31 August 2013 passed by the Municipal Commissioner of Pune Municipal Corporation thereby rejecting the Applications of the members of the Petitioners' Association, who had sought grant of additional TDR against the Development of Municipal road, undertaken by the said members at their own cost and expenses.
2. As common question of laws are involved in these Petitions, they are decided together. Writ Petition No.6214 of 2014 is filed by Association of Builders, hence this Petition was argued as the leading Petition.
3. Some of the members of the Petitioners' Association constructed Roads which were acquired/required for road widening, at their cost and also paying 11 percent of the cost so incurred to the road department of Pune Municipal Corporation (for short 'PMC'), as supervision charges of the said roads.
4. The members of the Petitioners' Association thereafter made applications to the Municipal Commissioner of PMC in terms of DCR and claimed Development Rights in the form of FSI equivalent to the area of the roads constructed by these members of the association.
5. As they had not received any response from the PMC they preferred Writ Petition No.9892 of 2011in this Court seeking mandatory direction to the Municipal Corporation to grant equivalent FSI to the area of road construction by the members of the Petitioner's Association.
6. On 8 May, 2023 as the said Writ Petition was heard, when Petitioner's counsel referred to the judgment passed by the Supreme Court in Godrej & Boyce. According to Petitioners counsel facts of said case were identical to the Petitioners' case. At that time the counsel appearing for the Municipal Corporation submitted to the Court that his client was willing to consider the application of the petitioners and would decide the same on merits, in accordance with the judgment of Supreme Court in Godrej (supra).
7. Pursuant to directions of this Court, on 31 August, 2013 hearing were conducted by the Municipal Commissioner of PMC on the application of Petitioner's members. By order dated 31 August 2013, it was held that the ratio of Godrej judgment was not applicable to the members of the Petitioners Association and further the Road development did not fall within the definition of construction of built-up area therefore, TDR cannot be awarded to the members of Petitioner's Association.
8. Being aggrieved by the Order dated 31 August, 2013 passed by the Municipal Commissioner of PMC, the Petitioners have filed present Writ Petitions, challenging the rejection of Petitioners application. The PMC has filed its reply to the Writ Petitions opposing granting of any relief to the Petitioners. The Petitioners filed their affidavit in rejoinder to the reply filed by the Respondents, so also additional affidavit were filed on behalf of the added Petitioners. SUBMISSIONS:
9. Mr. Pravin Samdani, Senior Counsel appeared on behalf of the Petitioners and made his submissions. He submitted that the Municipal Commissioner has acted arbitrarily in rejecting the claim of the members of Petitioners' Association, as the TDR in form FSI equivalent to the area of the road constructed by them in terms of DCR No.2.4.6, was applicable, to the members of Petitioner’s Association.
9.1. Mr. Samdani submitted that the Municipal Commissioner has wrongly held that the ratio laid down by the Supreme Court in the case of Goderj & Boyce, cannot be adopted for grant of TDR for road development in PMC area, for the reasons that DCRs, pertaining to grant of TDR are different than that of Pune city's on DCRs.
9.2. He further submitted that the payments made by the members of the Petitioners' Association at the time of grant of Occupation Certificate for development of DP Road passing though property, cannot have any bearing towards the grant of TDR since there is no mention of DCR No.2.4.[6] for grant of TDR towards payment made to PMC. He further submitted that the members of the Petitioners' association has paid necessary charges as required for the purpose of Development of site exclusively. The 11% inspection charges were towards the public road that is developed or entire payment towards development of public road. The receipt issued by the Municipal Corporation clearly shows that the amounts, are paid to the Corporation towards supervision charges of development road.
9.3. He further submits that the Municipal Commissioner has ignored the provisions of Section 126 (1) (b) read with Section 2 (2) of the MRTP Act, 1966 which clearly defines “Road” as amenity which includes road, streets, open space parks, cremation grounds, play ground, sport complex, parade ground, gardens, market, Parking Lots, primary and secondary schools and colleges etc.
9.4. He further submits that the Municipal Commissioner has wrongly held that the payments made by the members of Petitioners' Association at the time of grant of Occupation Certificate for development of DP Road passing through their property cannot have any bearing towards grant of TDR, since there is no mention in Clause No.2.4.[6] for grant of TDR towards payment made to the Municipal Corporation.
9.5. He has further submitted that the Petitioner Nos.[4] to 8 have surrendered land for development of public amenity i.e... public road and have also paid huge amount to the Municipal Corporation for development of DP Road. In para 3.[1] of the impugned order of the Municipal Commissioner, it is suggested that the development and planning department may modify the DCR for grant of additional TDR for road development work and has in principle admitted that, the Petitioner Nos. 2 to 8 deserve the TDR, but he is not granting it due to the prevailing DCR applicable to the City of Pune.
9.6. He has further submitted that the Municipal Commissioner failed to consider that the DCR applicable to the Pune city were framed in the year 1986, and the concept of TDR came to be introduced for the first time in the year 1997, by government notification dated 5 June, 1996. However, the terms like built-up area are not updated in consonance with MRTP, Act and the TDR provisions. In such a situation, he submits, the Municipal Corporation ought to have referred to MRTP Act while deciding the application of the members of Petitioners' association. He has emphasized that in any case the provisions MRTP Act would prevail over the DCR, and, therefore, the Municipal Commissioner ought to have referred and considered the provisions of MRTP Act rather than rejecting the claim of the members of Petitioners' association, by solely relying upon the DCR of Pune city.
9.7. He has further submitted that the ratio laid down by the Supreme Court in the case of Godrej (supra) is squarely applicable to the present proceedings. He has ultimately submitted that right of the members of Petitioners' association in entitlement of additional TDR is covered by the provisions of Article 300 (A) of the Constitution of India and the same cannot be deprived to them.
9.8. He has, therefore, submitted that the Petition is required to be allowed and the impugned order dated 31 August, 2013 is required to be quashed and set aside and direction is required to be given to the Municipal Commissioner of PMC to grant FSI equivalent to the area of the Road (amenity) development at the cost of the Petitioners.
10. Senior Counsel Mr. Atul Damle, along with Mr. Dormaan Dalal, Mr. Tejas Deshmukh, Ms. Manjiri S. Parasnis appearing for the Petitioners in the connected Writ Petitions adopted the submissions made by Senior Counsel Mr. Pravin Samdani,
11. On the other hand, Mr. Ashutosh Kumbhakoni, Senior Counsel for the Pune Municipal Corporation has made his submissions opposing the petitions.
11.1. Mr. Kumbhakoni has submitted that FSI in the form of TDR was granted to the members of the Petitioners' Association against the surrender of the respective lands and the possession of the surrendered lands towards DP Road was actually handed over to the Municipal Corporation under the respective clauses.
11.2. He has further submitted that the Supreme Court judgment of the Godrej (supra), is not at all applicable to the present proceedings, as the present proceedings are concerned with the lands in Pune city, and the city has it’s own DCR and there is no provision under the said Regulations for grant of additional TDR.
11.3. He has further submitted that the application made by the individual applicants who claim to be members of the Petitioners' association was not maintainable under the provision of Rule No.2.4.6. He has further submitted that the members of the Petitioners' association had never developed the amenity and there was no intention and/or proposal for developing the said amenity under the provisions of Rule No.2.4.6. and in developing such an amenity by the owner and their now prosecuting the application under Rule No.2.4.[6] would disentitle the Petitioners from seeking such a claim which they are now perusing which is only by way of after thought. He has further submitted that the Petitioner is misinterpreting provisions Section 161 (1) (b) of the MRTP Act and the Rule No.2.4.6. He has further submitted that the amount paid by any applicant towards development charge is around 10 time less than the market rate of the TDR and therefore, seeking TDR 10 times of what has been paid is an original proposition would be unjustified and the fact of voluntary payment has nothing to do with Rule No.2.4.6. Moreover, the generation of double road, he submits, will amount to additional burden on infrastructure. Mr. Kumbhakoni, concluded that there is no merit in the case of the Petitioners and the Writ Petitions should be dismissed and the present Writ Petitions challenging the impugned order dated 31 August, 2023 passed by the Municipal Commissioner should be dismissed.
ANALYSIS AND CONCLUSION
12. Admittedly no TDR has ever been granted by PMC to any of the landowners in the city of Pune, on the count of “construction of road”. PMC has disputed the entitlement of Petitioners to receive TDR on account of “construction of road” as claimed by Petitioners for road developed in the year 2011. PMC has submitted that the concept of paying money to the municipal corporation and obtaining a TDR from the corporation in exchange thereof is wholly unknown in the entire scheme DCRs and/or TDR.
12.1. In the year 2011, the city of Pune, was governed for purpose of Planning and Development, by “Development Control Rules for Pune Municipal Corporation, Pune 1982” (for short ‘Pune DC Rules’).
13. The Petitioners claim for TDR for construction of road is based on DCR No.2.4.6, the said DCR No.2.4.[6] reads as under: “When an owner/lessee also develops or constructs the built up area on the surrendered plot at his cost subject stipulation as may be prescribed by the Commissioner or the appropriate authority as the case may be and to their satisfaction and hands over the said developed/constructed built up area to the Commissioner/Appropriate Authority, free of cost he may be granted a further D. R in the form of FSI equivalent to the area of the construction/development done by him, utilization of which etc. will be subjected to the Regulation contained in this Rule. [Emphasis supplied] Rule No.2.4.[6] applies where the developer develops/constructs “a built up area”. Therefore, it is essential to understand the term “built up area”. The term ‘built up area’ is defined under Rule No.2.13, which reads as under:
2.13 Built-up area: area covered immediately above the plinth level by the building or external area of any upper floor whichever is more excepting the areas covered by rule no.15.4.2.
13.1. It is pertinent to note that the Petitioners have specifically taken up ground in the Petition by way of ground No.5 (l), which reads as under:- “Further, the 3rd Respondent failed to consider that, the Pune DC Rules were framed in the year 1986 and the concept of TDR came to be introduced for the first time in the year 1997 by Government Notification dated 5-6-1997. However, the terms Built-up area is not updated and/ or amended to make it in consonance with MRTP Act and TDR provisions. Therefore, the 3rd Respondent ought to have referred MRTP Act while deciding the Applications of the members of Petitioner Association.” [Emphasis supplied]
13.2. This clearly shows that Petitioners are aware and have admitted that in the Pune DC Rules, the term ‘built up area’, does not cover road, and therefore, it is necessary for the Government to amend the definition of term ‘built-up area’.
13.3. Therefore for a built up area to exist there needs to be a plinth. Term ‘plinth’ has been defined in Rule No.2.65 of Pune DC Rules which reads as under: “2.65 the portion of the structure between the surface of the surrounding ground and the surface of the floor, immediately above the ground as specified in rule number 17.[1] to 17.10.4”
14. The Pune DC Rules, Rule no.17.1. to 17.10.[4] deal with structure of a building and it nowhere deals with Road. Rule 20.2, reads, “Words and explanation not defined in these Rules shall have the same meaning or sense as in the MRTP.” Since Pune DC Rules, define the relevant “Words” there is no need to look into MRTP. The term built up area cannot be same as the amenity. One cannot read into something, which is not in the DCR applicable to the City of Pune.
15. The petitioners have deposited various amount with the corporation pursuant to the circulars viz. Security charges, supervision charges, and finally cost of construction of road is entirely a different scheme altogether and it has nothing to do with either grant of TDR or development of amenities by the land owners.
15.1. Regulations No.12 of Pune DC Rules, deals with means of access. Its the owner who is responsible to provide for means of aceess to his property, which he wants to develop. Regulations no.12.[4] reads as under:
12. Means of access (modified in 1997) as "Public street and means of access" 12.[4] Means of Access shall be leveled, metaled, flagged, paved, sewered, drained, channeled, lighted, led with water supply line and provided with trees for shed to the satisfaction of authority, free from encroachment by any structure of fixture so as not to reduce its width below the minimum required under rule no 12.[3] and shall be maintained in a condition to the satisfaction of the authority. 12.4.[1] (Initially not approved deleted in the year 1987 but added vide Government Resolution dated 5th June, 1997.) Private street: If any private street or other means of access is not constructed or maintained as specified in sub-regulation or if structures or fixtures arise thereon in contravention of that sub-rule, the commissioner, may, by written notice direct the owner or owners of the several premises fronting or adjoining the said street or other means of access or abutting thereon or to which access is obtained through such street or other means of access or which shall benefit by works executed to carry out any or all of the aforesaid requirement in such manner and within such time as he shall direct. If the owner or owners fail to comply with his direction the Commissioner may arrange for its execution and recover the expenses incurred from the owner or owners.
16. In the context of the DCR number 12.[4] that deals with "means of access", it becomes clear that, the owners of the land have been paying various amounts to the Corporation towards construction of road towards discharge of their liability to provide and maintaining "means of access" to their respective plots under development as a part of the scheme or policy of the Corporation. Such scheme has been introduced by the Corporation to have good quality and uniformity in the nature of construction of the roads, constructed for the benefits of the public at large.
16.2. The landowners /Petitioners herein have deposited amount in the light of their legal responsibility to maintain and provide "means of access" contemplated by the regulations No. 12. The entire conduct of petitioners demonstrates that they never deposited amounts in issue to have TDR in terms of the DCR No.2.4.6. Such a case is tried to be made out only after the delivery of Judgment of Godrej Boyce (Supra) by the Supreme Court, which is arising out of D.C. Regulations of city of Mumbai.
16.3. The petitioners have deposited various amount with the corporation pursuant to the circulars viz. Security charges, supervision charges, and finally cost of construction of road is entirely a different scheme altogether and it has nothing to do with either grant of TDR or development of amenities by the land owners.
16.4. In the context of the DCR number 12.[4] that deals with "means of access", it becomes clear that, the owners of the land have been paying various amounts to the Corporation towards construction of road towards discharge of their liability to provide and maintaining "means of access" to their respective plots under development as a part of the scheme or policy of the Corporation. Such scheme has been introduced by the Corporation to have good quality and uniformity in the nature of construction of the roads, constructed for the benefits of the public at large.
16.5. The landowners /Petitioners herein have deposited amount in the light of their legal responsibility to maintain and provide "means of access" contemplated by the regulations no. 12
16.6. As per the DCR No.12 r/w various circulars, the landowners have been called upon to deposit amounts towards development of Road, with the following principles:
(i) deposit is required to be made at prescribed rate considering minimum 50% of the width of the Road in issue.
(ii) if the land surrendered area for the purpose of Road is more than 50% of the width of the Road then the cost for constructing the road to such extent which is more than 50% extent is required to be borne by the owner of the land.
16.7. This falsifies petitioners contention that they have paid 100 % cost of construction.
17. The scheme of DCRs of Pune corporation and Mumbai corporation is quite different.
17.1. Regulation 34 and Appendix VII of Development Control Regulations for Greater Mumbai, 1991, what can be granted in additional transferable development rights only to the extent of 15% of the Road area. Appendix VII (6) reads as under: “When an owner or lessee also develops or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction and hands over the said developed/constructed amenity to the Commissioner /appropriate authority, free of cost, he may be granted by the Commissioner a further DR in the form of FSI equivalent to the area of the construction/development done by him, utilization of which etc. will be subject to the Regulations contained in this Appendix.” The word “Amenity” is defined in Mumbai DCR 1991, Regulation No.2 (3) (7), which reads as under:- (7) "Amenity" means roads, streets, open spaces, parks, recreational grounds, play, grounds, gardens, water supply, electric supply, street lighting, sewerage, drainage, public works and other utilities, services and conveniences. Petitioners have paid only part money i.e. 10 % for construction costs of road in Pune city.
17.2. The ratio laid down by the Godrej (supra), is applicable to the city of Mumbai, as Godrej (supra) was concerned with the DCR of the city of the Mumbai. The provision of DCR are quite different of Mumbai city, than the DCR of the city of Pune, therefore, the judgment of Godrej (supra) is not applicable to the present proceedings.
18. This petition is filed by Association of developers, building permissions granted to any developers are not brought on record. The building permissions have been granted, which will show that a legal obligation is cast upon the landowner to develop and/or construct the road situate abutting the property which the owner wants to develop. The amount aforesaid that are deposited by the owners are in compliance with the said conditions of the building permissions. The same are not in accordance with Rule No.2.4.6. If the owners had any dispute in respect of the conditions so imposed in the grant of Building Permissions, it was open for the owners to challenge the same. Having conceded and accepted the conditions and made payment in compliance with the said conditions so imposed, it was not open now to the landowners to link the same to DCR no.2.4.6.
19. We find no fault with the order dated 31 August 2013, passed by Municipal Commissioner of PMC, rejecting application of members of Petitioners Association, who had sought additional TDR against construction of road in the year 2011.
20. Therefore, there is no merit in the present Writ Petitions and the same are dismissed. No costs. (RAJESH S. PATIL, J.) (SUNIL B. SHUKRE, J.)