Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9021 OF 2014
GODREJ AND BOYCE MANUFACTURING
COMPANY LIMITED THROUGH ITS
CONSTITUTED ATTORNEY & ANR. …APPELLANT(S)
VERSUS
THE MUNICIPAL CORPORATION OF
GREATER MUMBAI & ORS. …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1. Aggrieved by the dismissal of their claim by the Bombay
1
High Court, for the grant of Development Rights Certificate for a
total area of 31,057.30 sq.metres, for the construction and
development of the amenity namely “ Recreation Ground ”, the writ
petitioner before the Bombay High Court has come up with this
appeal.
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2023.05.08
17:12:46 IST
Reason:
1
For short “ DRC ”
1
2. We have heard Shri P. Chidambaram, learned senior
counsel for the appellants and Shri Atmaram N.S. Nadkarni,
learned senior counsel appearing for the respondents.
3.
The background facts leading to the appeal on hand are as
follows:-
(i) The second Development Plan (DP 1991) for Greater
Mumbai was prepared for the period 1981-2001 and the same
was sanctioned in parts between 1991 and 1994. In the said DP,
the plots of land bearing CTS No.2B (part) falling in N-Ward &
CTS Nos. 2B (part) and 3B falling in S-Ward were reserved for the
purpose of “ Recreation Ground ”;
(ii) The aforesaid plot of land was admittedly owned by
appellant No.1 herein. Appellant No.2 herein is the duly
constituted attorney of appellant No.1 in respect of the said
property;
(iii) Under Maharashtra Act 10 of 1994, clauses (a), (b) and
(c) were inserted under sub-section (1) of Section 126 of the
Maharashtra Regional and Town Planning Act, 1966 ( hereinafter
called “the Act” ), by way of substitution. These clauses were
inserted with effect from 25.03.1991;
(iv) Section 126 (1) conferred power upon the Planning
Authority/Development Authority, to acquire any land required
or reserved for any of the public purposes specified in any plan or
2
scheme, after the publication of a Draft Regional Plan or a DP or
2
For short “ DRP ”
2
3
Town Planning Scheme . The newly inserted clauses (a), (b) and
(c) in sub-section (1) provided 3 different methods of such
acquisition. One method of acquisition was by way of an
agreement upon payment of an agreed amount. The second
method of acquisition was by granting, in lieu of any
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compensation, Floor Space Index or Transferable Development
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Rights against the area of land surrendered free of cost and also
further additional FSI or TDR against the development or
construction of the amenity on the surrendered land. The third
method of acquisition was through the initiation of proceedings
under the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013;
(v) Vide letter dated 14.07.1994, appellant No.1 through
their Architects, “ Worthy Enterprises ” made an application for
surrendering land of the extent of 31,057.58 sq.metres (two plots)
which was reserved under the DP for the purpose of “ Recreation
”. An application for the grant of DRC was enclosed to the
Ground
said letter;
(vi) It is relevant to mention at this stage that the TDR to
be granted in lieu of compensation for acquisition of land, as
contemplated in clause (b) of sub-section (1) of Section 126
comprised of two components namely, (i) TDR equal to the area of
land surrendered; and (ii) additional TDR against the
development or construction of the amenity on the surrendered
land at the cost of the owner;
3
For short “ TPS ”
4
For short “ FSI ”
5
For short “ TDR ”
3
(vii) Vide another letter dated 08.10.1994, the Architect of
appellant No.1 wrote a letter to the Municipal Corporation,
expressing their intention to develop the land sought to be
surrendered;
(viii) By another letter dated 24.11.1994, the Architect of
appellant No.1 forwarded to the Superintendent of Gardens, a set
of drawings for the development of the land, after incorporating
the suggestions made by the Department pursuant to the visit
made by the Deputy Superintendent of Gardens;
(ix) Vide letter dated 03.12.1994 the Superintendent of
Gardens forwarded to the Assistant Engineer, the appellants’
proposal;
(x) By a letter of intent dated 05.04.1995, issued by the
Chief Engineer (Development Plan), appellant No.1 was informed
that their request for the grant of DRC will be considered after
the requirements mentioned therein were complied with. One of
the conditions indicated in the said letter dated 05.04.1995 was
that the appellant had to deposit a sum of Rs.3,50,000/- as
security for the faithful compliance of the requirements
mentioned in the letter;
(xi) Appellant No.1, through their Architects, undertook
the development work. Site inspection was also carried out by the
officials of the Municipal Corporation. Eventually the Deputy
Chief Engineer (Planning and Design), issued a letter dated
27.05.1995 certifying the completion of the development work
undertaken by the appellant No.1. This letter was issued after
making a site inspection on 23.05.1995;
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(xii) By a subsequent letter dated 20.07.1995, the Chief
Engineer informed appellant No.1 that they have to complete
Storm Water Drains and that thereafter, the DRC will be issued.
Accordingly, the appellant No.1 undertook the construction of
Storm Water Drains;
(xiii) Thereafter, the Executive Engineer issued a
communication dated 20.10.1995 certifying that the drains have
been constructed satisfactorily;
(xiv) As a matter of fact, the Architects of appellant No.1
had a temporary site office and godown on the plot reserved for
“ Recreation Ground ”. This was, as per the letter dated 28.09.1995
of the Architects, for the purpose of developing the additional
amenity and for landscaping of Recreation Ground. Therefore, in
a couple of communications, the Architects of the appellant No.1
offered to remove the same, once the work was completed.
Appellant No.1 even deposited a sum of Rs.25,000/- for the
retention of the temporary structure, to store materials required
for the development;
(xv) When appellant No.1 was developing the amenity, the
local people wanted access and, hence, the Deputy Chief
Engineer requested through his note dated 30.11.1995, orders of
the Chief Engineer on two things, namely, (i) access to the local
people; and (ii) permission to take over possession of the
developed land;
(xvi) Simultaneously, appellant No.1 handed over formal
possession of the land on 09.12.1995;
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(xvii) On 14.12.1995, the respondents granted NOC to
appellant No.1 in terms of the proposal dated 07.12.1995. A
further scrutiny report dated 28.12.1995 acknowledged that the
“ Recreation Ground ” was being developed in terms of the approval
granted on 14.12.1995;
(xviii) While things stood thus, the Municipal Corporation
issued a Circular dated 09.04.1996, restricting the grant of
additional TDR in respect of amenities such as “ Recreation
Ground” , only for the structures allowed to be constructed within
the reservations, to the extent of built-up area of such structures
subject to a maximum of 15% area of the reservations. This
Circular and another Circular dated 05.04.2003 became the
subject matter of challenge, which resulted in this Court
delivering a Judgment reported in Godrej and Boyce
Manufacturing Company Limited vs. State of Maharashtra
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and Others. ;
(xix) During the pendency of the above proceedings,
appellant No.1 constituted appellant No.2 as their Power of
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Attorney in respect of the amenity TDR (Additional TDR) under a
Deed dated 24.12.1996;
(xx) Claiming to have completed the development of the
amenity, the appellants applied on 17.04.1998 for the grant of
Additional TDR (also known as “ Amenity TDR ”);
6
(2009) 5 SCC 24
7
For short “ PoA ”
6
(xxi) But by a reply dated 27.11.1998, the Corporation
declined to consider the request for additional TDR on the ground
of prevailing policy ( namely, the Circular dated 09.04.1996 );
(xxii) Since the Circular was under challenge before this
Court, appellant No.1 awaited the outcome of the challenge;
(xxiii) Therefore, after the circular was set aside by this
Court in the decision in Godrej and Boyce Manufacturing
Company Limited (supra), the appellant made one more request
for the grant of Additional TDR by a letter dated 03.11.2009. But
the same was turned down by the Municipal Corporation by an
order dated 17.08.2010;
(xxiv) Aggrieved by the said response, the appellants filed a
writ petition in WP No.2058 of 2010. This writ petition was
dismissed by the High Court of Judicature at Bombay by an
order dated 08.08.2011. It is against the said order that the
appellants have come up with the above appeal.
4. While rejecting the claim of the appellants, the High Court
recorded the following findings:
(i) that a claim for Additional TDR generally arises in terms
of clause 6 of Appendix VII of Regulation 34 of the Development
8
Control Regulations for Greater Mumbai, 1991 ;
(ii) that the entire correspondence exchanged between the
appellants and the respondents from 14.07.1994 till the year
1998 does not disclose that the appellants intended to avail
additional TDR in terms of clause 6;
8
For short “ the Regulations ”
7
(iii) that if there was any such intention, the owner ought
to have approached the Commissioner or the Appropriate
Authority in terms of clause 6 of Appendix VII;
(iv) that the Superintendent of Gardens was not the
appropriate authority in respect of the Garden Department;
(v) that what was claimed by appellant No.1 and their
Architects was only TDR as per clause 5 and not additional TDR
under clause 6 of Appendix VII of Regulation 34;
(vi) that the appellants accepted DRC dated 02.01.1996
without any protest;
(vii) that the appellants have failed to establish that they
carried out any development;
(viii) that the agreement executed between M/s Mayfair
Housing and the Corporation shows that the appellants merely
surrendered the land and claimed TDR in terms of clause 5 but
did not carry out any development in terms of clause 6;
(ix) that while surrendering the land and claiming TDR in
terms of clause 5, appellant No.1 submitted a proposal enclosing
Form No.2625;
(x) at Serial No.17 of the said printed form, the
that
owners were called upon to inform whether the reservation is
proposed to be built as per the plans approved by the concerned
authority as per clause 6;
(xi) that the answer of appellant No.1 to the question at
serial No.17 was that the question does not arise as the
reservation was for “Recreation Ground ”;
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(xii) that before claiming additional TDR in terms of clause
6, neither appellant No.1 nor appellant No.2 filled in the printed
Form;
(xiii) that under clause 6, the amenity has to be developed
as per the stipulations prescribed by the Commissioner or the
appropriate authority, but in this case, these authorities did not
prescribe any stipulations, since the appellants did not submit
any printed Form for additional TDR;
(xiv) that appellant No.2 is not the owner or lessee of the
land and hence when appellant No.2 made a request for the
development/maintenance of the land, the request was granted
on condition that appellant No.2 will not claim any TDR; and
(xv) that in any case the appellants should be deemed to
have abandoned their claim for additional TDR, in view of the fact
that they came up with the writ petition only in the year 2010
challenging the rejection of the request for additional TDR made
in the year 1998 and that, therefore, the writ petition deserves to
be dismissed.
5. Assailing the impugned order of the High Court, it is
contended by Shri P. Chidambaram, learned senior counsel:
(i) that TDR/Additional TDR, constitute compensation in
kind for the acquisition of the land and the development of the
amenity and hence the denial of the same will be an infringement
of the right to property guaranteed under Article 300A of the
Constitution;
9
(ii) that there is no dispute that the appellants developed
the “ Recreation Ground ,” in terms of the plan approved by the
Superintendent of Gardens;
(iii) that the High Court overlooked the approval granted by
the Municipal Commissioner which was available on record and
hence the finding that the appropriate authority did not grant
approval is factually incorrect;
(iv) that in terms of Regulation 6, the amenity is required to
be developed “ on the surrendered plot ” and the vesting in favour
of the Corporation takes place only after the development of the
amenity in terms of Section 126(1)(b);
(v) that the stand taken by the Corporation before the High
Court that the appellant did not develop the amenity, was an
afterthought;
(vi) that the request for Additional TDR made by the
appellants on 17.04.1998 was rejected by the Corporation by a
communication dated 27.11.1998, not on the ground that the
appellants did not develop the amenity, but on the sole ground
that the prevailing policy did not permit the grant of additional
TDR;
(vii) that the inference drawn by the High Court that there
was abandonment of right by the appellant, on account of the
delay in approaching the High Court, was totally perverse:
(viii) that the High Court failed to appreciate that the delay
was due to the necessity for the appellant to await the outcome of
their challenge to the “ prevailing policy ” and that, therefore, the
impugned order is liable to be set aside.
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6. Defending the action of the respondents and the impugned
order of the High Court, it is contended by Shri Atmaram N.S.
Nadkarni, learned senior counsel:-
(i) that after going through the entire correspondence
between the parties, the High Court has recorded findings of fact
on various aspects such as the appellants not undertaking the
development of any amenity, the appellants not making any
claim for Additional TDR and the lack of approval on the part of
the appropriate authority for the development of any amenity;
(ii) that these findings of fact do not warrant any
interference under Article 136 of the Constitution;
(iii) that the rejection of the request for additional TDR,
made on 27.11.1998 was challenged by the appellants only after
12 years and hence the High Court was justified in drawing an
inference about the abandonment of claim;
(iv) after the surrender and transfer of the land in
that
favour of the Corporation and the grant of TDR, the appellants
ceased to be owners and hence they were not entitled to claim
additional TDR;
(v) that the claim for Additional TDR should be made
simultaneously with the claim for TDR, but the appellants failed
to do so;
(vi) that the appellants made a claim for Additional TDR only
in 1998 after surrendering and transferring the land in the year
1995;
11
(vii) that in any case, the development of amenities had to be
carried out as per the stipulations made by the competent
authority; and
(viii) that the activities of cutting, leveling, filling, terracing
and landscaping cannot be treated as the development of amenity
and that therefore the action of the respondents and the order of
the High Court were perfectly in order.
7. We have carefully considered the rival contentions.
8. From the rival contentions, it appears to us that the
following two questions arise for our consideration:
(I) Whether the High Court was right in concluding that
there was abandonment of claim by the appellants? ;
and
(II) Whether the finding of fact arrived at by the High
Court that the appellants did not and could not have
developed the amenity, calls for any interference,
especially in the light of the statutory provisions and
the facts that unfold from the correspondence
exchanged between the parties?
Question No.I: Whether the High Court was right in
concluding that there was abandonment of claim by the
appellants?
9. It is true that the claim made by the appellants for the grant
of additional TDR vide their application dated 17.04.1998 was
rejected by the Corporation, by a communication dated
12
27.11.1998 and that the same was challenged by the appellants
by way of a writ petition filed after 12 years in September-2010.
The High Court held that this delay of 12 years in challenging the
action of the respondents tantamount to abandonment of claim.
10. Let us now see whether the inference of abandonment is
factually made out and legally sustainable.
11. The order of rejection dated 27.11.1998 is a cryptic order
which reads as follows:
“This is to inform you that, the proposal submitted by
you for grant of additional T.D.R in lieu of development of
Recreation Ground on the land bearing CTS No.2/B(pt),
3(B) of Village Ghatkopar cannot be considered, as per
the prevailing policy in this respect. ”
12. Obviously the expression “ prevailing policy ,” mentioned in
the aforesaid communication, was the Circular dated
09.04.1996. The said circular dated 09.04.1996 dealt with
several issues, one of which related to Additional TDR for open
space amenities. The relevant portion of the Circular dated
09.04.1996 reads as follows:
“2. OPEN SPACE AMENITIES LIKE GARDEN,
PLAYGROUND R.G., PARKING, OPEN SPACES &
BURIAL GROUND
i) The application for additional Development Right in
respect of the above mentioned amenities will be
considered only for the structures allowed to be
constructed within the reservations as per the provisions
of D.C.R. No. 23(g) to the extent of built-up area of such
13
structures, subject to maximum of 15% area of the
reservations.
ii) No additional Development Right will be granted for
execution of the items such as leveling, construction of
compound wall, retaining wall, providing compound gate
providing layer of red-earth, landscaping & drainage
arrangements etc.
iii) Procedure & terms and conditions for considering
grant of additional Development Rights for such
structures will be the same as per Item No.1 above.”
13. In fact, the above circular dated 09.04.1996, gave rise to a
dispute between appellant No.1 herein and a few others on the
one hand and the Corporation on the other hand. That dispute
which related to some other property, ultimately landed up before
this court in the form of a couple of civil appeals and a writ
petition. The dispute got resolved through the decision of this
court in Godrej and Boyce Manufacturing Company Limited
(supra). The said decision was rendered on 06.02.2009.
14. Therefore, taking advantage of the said decision, appellant
No.2 applied once again for the grant of Additional TDR, on
03.11.2009. The same was rejected once again by a
communication dated 17.08.2010. This rejection triggered the
present proceedings in the year 2010. It is in the light of this
chain of events that we have to see whether there was any delay
on the part of the appellants and whether such delay could lead
to an inference of abandonment of claim.
14
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.
9
Dasa Muni Reddy P. Appa Rao
vs. , 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.
9
(1974) 2 SCC 725
15
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 in 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.
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Question No.II: Whether the finding of fact arrived at by the
High Court that the appellants did not and could not have
developed the amenity, calls for any interference, especially
in the light of the statutory provisions and the facts that
unfold from the correspondence exchanged between the
parties?
19. The answer to question No.2 revolves both around factual
aspects and around certain statutory provisions. Let us first take
note of the statutory provisions, out of which the right to claim
additional TDR arose.
20. Section 126(1) of the Act reads as follows:
“126. Acquisition of land required for public
purposes specified in plans
(1) When 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
113A 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 to
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
17
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 in application to the State
Government for acquiring such land under the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 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 to 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.”
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
18
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 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
19
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?.
25. There is no dispute on facts in this case that the appellants
surrendered their land and accepted TDR in lieu of
compensation. The only question on which the parties have a
dispute, is as to whether the last limb of clause (b) stands
satisfied or not.
26. For a better appreciation, it is necessary to extract the last
limb of clause (b) as follows: “ … 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 ,”
27. The last limb of clause (b) extracted above shows 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 reciprocate the same by granting Additional FSI
or Additional TDR.
20
28. On the question as to whether the appellants have fulfilled
their obligations under the last limb of clause (b), there are
controversies both on facts and in law. On facts it is contended
by the respondents that the appellants did not develop or
construct the amenity and in law it is contended that what is
stated to be developed is not as per the Final Development
Control Regulations.
29. To resolve this conflict, it is necessary to take note of the
definition of the word “amenity” , which is defined in Section 2(2)
of the Act as follows:
“ 2. Definitions
In this Act, unless the context otherwise requires,—
xxx xxx xxx
(2) “Amenity” means roads, streets, open spaces,
parks, recreational grounds, play grounds, sports
complex, parade grounds, gardens, markets,
parking lots, primary and secondary schools and
colleges and polytechnics, clinics, dispensaries and
hospitals, water supply, electricity supply, street
lighting, sewerage, drainage, public works and
includes other utilities, services and conveniences;”
30. The word “ amenity” has been defined in Section 2(2) of
the Act to mean several things including “Recreational
Grounds”. We are concerned in this case with a “Recreational
Ground ”. The claim of the appellants is that they have
developed a Recreational Ground. Interestingly, it is not the
21
case of the respondents that the appellants were required to
develop something else and not a Recreational Ground. On
the contrary, it is the case of the respondents that the
appellants did not develop the Recreational Ground.
Therefore, all that we are obliged to see is whether a
Recreational Ground was developed or not.
31. The word “development” is also defined in the Act in
Section 2(7) as follows:
“ 2. Definitions
In this Act, unless the context otherwise requires,—
xxx xxx xxx
(7) “development” with its grammatical variations
means the carrying out of buildings, engineering,
mining or other operations in or over or under, land
or the making of any material change, in any
building or land or in the use of any building or
land or any material or structural change in any
heritage building or its precinct and includes
demolition of any existing building, structure or
erection or part of such building, structure of
erection; and reclamation, redevelopment and lay-
out and sub-division of any land; and “to develop”
shall be construed accordingly;”
32. The above definition shows that the word “development” is
given a very wide meaning. In fact, the last limb of clause (b) of
sub-section (1) of Section 126 uses both the expressions, namely
(i) development; and (ii) construction. Therefore, the word
22
“development” has to be understood to mean any activity which
may or may not include construction.
33. Having seen the relevant provisions of the Statute, let us
now have a look at the Regulations. This has become necessary
in view of the fact that the last limb of clause (b) extracted above
refers to “ the Final Development Control Regulations prepared in
this behalf”. Therefore, the question whether the appellants
developed or constructed any amenity, should be tested with
reference to the Final Development Control Regulations.
34. The Regulations define the word “amenity” under Regulation
2(7) as follows:
“ 2. Definitions of Terms and Expressions :-
xxx xxx xxx
(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.”
Even this definition includes Recreational Ground.
35. Regulation 34 of the Regulations deals with Transfer of
Development Rights. Regulation 34 reads as follows:
“ 34. Transfer of Development Rights:-
In certain circumstances, the development
potential of a plot of land may be separated from
the land itself and may be made available to the
owner of the land in the form of Transferable
23
Development Rights (TDR). These Rights may be
made available and be subject to the Regulations in
Appendix VII hereto.”
36. Appendix VII referred to in Regulation 34 later got
renumbered as Appendix VII-A vide order dated 15.10.1997.
Clauses 5, 6 and 7 of the Regulations formed the eye of the storm
before the High Court. Therefore, they are extracted as follows:
“ APPENDIX VII-A
(Regulation 34)
Regulations for the grant of Transferable
Development Rights (TDRs) to owners/developers
and conditions for grant of such Rights
xxx xxx xxx
5. The built-up area for the purpose of FSI credit in
the form of a 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 from the TDR
has originated.
Provided that in specific cases considering the
merits, where Development Plan Roads/
reservations are proposed in No Development Zone,
the Commissioner with prior approval of the
Government shall grant FSI for such road
land/reserved land equivalent to that of the
adjoining zone.
6. 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, utilisation
24
of which etc. will be subject to the Regulations
contained in this Appendix.
7. A DRC will be issued only on the satisfactory
compliance with the conditions prescribed in this
Appendix.”
37. The High Court, after scanning the correspondence came to
the conclusion that clause 5 of Appendix VII alone is applicable
to the case on hand, since the appellants made a claim only for
TDR equivalent to the gross area of the reserved plot surrendered
to the Corporation and that clause 6 was not applicable as the
owner did not develop or construct the amenity on the
surrendered land at his cost. Therefore, it is necessary to go back
to certain factual details to find out (i) whether appellant No.1 did
develop the amenity; and (ii) whether they made a claim traceable
only to clause 5 and not to clause 6 of Appendix VII to the
Regulations read with Regulation 34.
38. The answer to the first question whether appellant No.1 did
develop the amenity or not, lies in the correspondence. As we
have pointed out earlier, the word “ amenity ” means several things
including “ recreation ground .” The word “ development ” includes
under Section 2(7), mining or other operations in or over the land
or the making of any material change in any building or land and
reclamation, redevelopment and layout and sub-division of any
25
land. Keeping these definitions in mind, if we go back to the
correspondence, the picture that unfolds is as follows :-
(i) By the letter dated 08.10.1994, the Architects of
appellant No.1 informed the Director (ES&P) of the Bombay
Municipal Corporation that they “ intended to develop the
surrendered land before handing over, by suitably cutting,
levelling, filling and terracing etc., in order to have a Recreation
Ground with utility and beauty ”;
(ii) A plan was also attached to the said letter dated
08.10.1994 showing the proposed overall development;
(iii) Pursuant to the said letter, the Superintendent and
Deputy Superintendent of Gardens visited the site, as could be
seen from the letter dated 24.11.1994 addressed by the Architect
to the Superintendent of Gardens. To this letter, a set of drawings
prepared after incorporating the suggestions of the Department
was also enclosed;
(iv) By a departmental note dated 03.12.1994, the
Superintendent of Gardens seems to have addressed the
Executive Engineer (DP)(ES) indicating that the plan submitted
by the Architect was slightly modified after visiting the site. The
Executive Engineer was also requested to inform further
development in future so that the progress could be monitored;
(v) The said departmental note dated 03.12.1994 contains
an endorsement at the bottom to the effect “ please inform that
developer can develop the RG by availing ATDR .” Obviously, the
26
acronym RG stands for Recreation Ground and the acronym
ATDR stands for Additional Transferable Development Rights;
(vi) By a letter dated 05.04.1995 addressed by the Chief
Engineer (DP) to appellant No.1, they were instructed to carry out
certain things, as per the plan submitted by their Architect. Two
important things could be noticed from this letter. The first is
that Point No.7 mentioned in the said letter speaks about the
joint measurement of the “ Recreation Ground ”. The second is that
the letter was described as an intent letter valid for a period of
one year, but eligible to be revalidated for further periods;
(vii) By a letter dated 27.05.1995, the Deputy Chief
Engineer (Planning and Design) informed the Architects that the
work undertaken by them was found completed as per the
amended plan approved by the Department and as per the re-
location approved by the Director (ES & P). This letter was issued
after an inspection of the site on 23.05.1995.
(viii) By a letter dated 28.09.1995, the Architect of appellant
No.1 informed the Assistant Engineer (DP) that the Architects had
a temporary site office and go-down constructed on the plot
reserved for and that they were being used for
Recreation Ground
constructing additional amenity and landscaping of Recreation
Ground . By the said letter, the Architect undertook to remove
these structures after completion of “ the development of RG ”.
(ix) By a departmental note dated 30.11.1995, the Deputy
Chief Engineer sought the approval of Municipal Commissioner
on certain issues. One of the issues on which the orders of the
Municipal Commissioner were sought, was the development of RG
27
by planting trees, providing fountain etc. and the removal of the
structures erected by the Architects for the purpose of carrying
out the development, within two years. The said note was
approved by the Municipal Commissioner on 04.12.1995.
(x) It is only after the above events that the handing over
and taking over possession of the surrendered land took place on
09.12.1995.
(xi) After the handing over and taking over possession of
the land, the Superintendent of Gardens sent a communication
date 14.12.1995 to the Architect of appellant No.1 that they have
no objection to the landscaping being undertaken.
(xii) In a Departmental note put up on 28.12.1995, it was
mentioned clearly that the Recreation Ground was developed by
appellant No.1 as per the approval of Superintendent of Gardens.
(xiii) On 02.01.1996, a DRC (Development Rights Certificate)
was issued to appellant No.1, with respect to the surrendered
land.
(xiv) It is only thereafter that appellant No.2 who is a
partner of Mayfair Housing jumped into the fray and sought
permission to maintain the Recreation Ground , through a letter
dated 20.11.1996. On the said letter dated 20.11.1996, there is
an endorsement of the Joint Municipal Commissioner made on
26.11.1996 that the plot had come to BMC under TDR and that,
“ he had spent Rs.1.25 crores on this RG and developed it ”.
(xv) On the said letter dated 20.11.1996 of Mayfair
Housing, a note order was passed by the Deputy Municipal
Commissioner stating that there was no clarity about the nature
28
of the activities to be carried out by Mayfair and that the same
needed to be part of an agreement.
(xvi) Thereafter appellant No.1 executed two deeds of power
of attorney, both dated 24.12.1996 in favour of appellant No.2
and his wife. By one power of attorney, appellant No.1 authorised
their duly constituted attorneys to deal with the TDR already
granted to them under the Development Rights Certificate issued
on 02.01.1996. By the other deed of power of attorney, appellant
No.1 authorized their duly constituted attorneys to seek the grant
of “ Amenity TDR ” also known as Additional TDR. Interestingly,
this deed authorized appellant No.2 and his wife to apply
for getting permission from the authorized department for
the construction of Recreation Ground in accordance with
the plans/specifications .
(xvii) It is important to note that both the deeds of power of
attorney were executed by appellant No.1 on 24.12.1996,
after appellant No.2 representing Mayfair Housing made a
representation on 20.11.1996 seeking permission for the
development of Recreation Ground.
(xviii) Therefore, when a note was put up by the
Deputy Chief Engineer on 30.01.1997 on the proposal made by
the Deputy Municipal Commissioner, it was indicated therein
that the permission for the development of RG plot has been
granted although additional TDR for the same was not
admissible .
(xix) Thereafter, a communication was issued to Mayfair
Housing, with reference to the letter of appellant No.2 dated
29
20.11.1996, informing them that the development and
maintenance of the Recreation Ground on payment of
nominal fee has been sanctioned, subject to certain
conditions, one of which was that no TDR will be given .
(xx) All the above correspondence culminated in the letter
of request dated 17.04.1998 issued by appellant No.2 on behalf
of appellant No.1 for the grant of additional TDR.
39. The entire correspondence that began with a letter dated
14.07.1994 sent by Worthy Enterprises, the Architects of
appellant No.1 to the Chief Engineer (DP) of the Municipal
Corporation and culminating in the letter of appellant No.2 dated
17.04.1998 seeking the grant of additional TDR, can be split into
two time zones. The first of these time zones commenced with the
letter dated 14.07.1994 and ended with the handing over of
possession of the land by appellant No.1 on 09.12.1995 to the
Corporation and the Corporation issuing a DRC on 02.01.1996
granting TDR for the surrendered land. The second time zone
commenced on 20.11.1996 with Mayfair Housing seeking
permission of the Corporation to develop and maintain the
Recreation Ground and ended up with the request for additional
TDR dated 17.04.1998 being rejected by order dated 27.11.1998.
30
40. Once the entire correspondence between the appellants and
the respondents, is split into two time zones, an interesting
picture emerges therefrom. This can be summarised as follows:-
(i) What was applied for in Form No.2625 enclosed to the
letter of the Architects dated 14.11.1994, was only a DRC for the
surrender of the land. There was no indication in the said letter
dated 14.07.1994 that appellant No.1 was interested in
developing an amenity for the purpose of claiming Additional
TDR. This is why, the answer of appellant No.1 to the question at
Serial No. 17 of the printed Form for the grant of DRC assumes
significance. The question at Serial No.17 and the answer thereto
are extracted as follows:-
(17) Whether the reservation
is proposed to be built upon
as per the plans approved by
the concerned Authority as
per sub regulation No.6 of
Appendix-VII, if so, details
thereof.
: Does not arise as the
reservation is for R.G.
(ii) The above answer to question No.17, in Form No.2625
submitted by appellant No.1 themselves along with their letter
dated 14.07.1994, stands in stark contrast, to the answer to the
very same question in the Form submitted by appellant No.2
along with the letter dated 17.04.1998. Question No. 17 and the
answer thereto in the Form submitted by appellant No.2 along
with the letter dated 17.04.1998 read as follows:
(17) Whether the reservation
is proposed to be built upon
as per the plans approved by
the concerned Authority as
: Recreation Ground
already developed as
per Municipal
specifications and
31
per sub regulation No.6 of
Appendix-VII, if so, details
thereof.
various requirements
(iii) Therefore, it is clear that it is only after appellant No.2, a
builder, entered into the scene that the claim for additional TDR
cropped up. As we have stated earlier, appellant No.2 entered the
scene only in November 1996, first sought permission to develop
and then got a Power of Attorney executed in his favour on
24.12.1996. Till the entry of appellant No.2, it was only ‘Worthy
Architects’ who were representing the appellant No.1. This can be
seen from other documents also.
(iv) For instance, in the letter dated 08.10.1994, Worthy
Enterprises sought permission to develop the Recreation Ground
reservation by suitably cutting, levelling, filling and terracing etc.
But there is no whisper in the said letter about additional TDR;
(v) However, an endorsement is made in the internal
department note dated 03.12.1994 asking the officer concerned
to “ inform the developer that he can develop the RG by availing
ATDR .” But it must be remembered at this stage that the claim of
appellant No.1 for TDR by surrendering the land itself was
pending consideration and the offer for levelling, cutting etc.,
seem to have been made for the purpose of convincing the
Corporation to accept the surrender of land and to grant TDR.
The subsequent correspondence show that the work of cutting,
filling, levelling and terracing was completed, only to enable the
Corporation to accept the surrender of land and grant TDR. This
will be clear from the letter dated 20.07.1995 issued by the Chief
Engineer laying down certain conditions including the
32
construction of Storm Water Drains, for the purpose of grant of
DRC even for the surrender of land;
(vi) It is only in the letter dated 28.09.1995 sent by Worthy
Enterprises that a mention about “ additional amenity ” is made
for the first time. Till this letter, there was no mention about any
“ additional amenity ” and all the activities of development agreed
to be undertaken or actually undertaken were for the purpose of
convincing the Corporation to accept the land and grant TDR;
(vii) Even internal note dated 30.11.1995 speaks about
conditions for the grant of DRC towards TDR and not about
additional TDR;
(viii) A perusal of the possession receipt dated 09.12.1995
contains a description of the subject matter as follows:-
“Grant of DRC in lieu of land….”
This possession receipt notes that a compound wall with a gate
has been provided and that the D.P. Road with provisions of
Storm Water Drain has been constructed and that the possession
of the land is taken subject to the owner agreeing to rectify the
defects in the works. Therefore, it is clear that whatever works
were undertaken by appellant No.1 and their Architects, were
part of the conditions fulfilled to make the Corporation accept the
surrender of land and issue a DRC towards TDR.
(ix) If cutting, filling, levelling, terracing etc., formed part of
the development of the amenity for gaining additional TDR, there
was no necessity for appellant No.1 to have got into a tie-up with
appellant No.2, the partner of Mayfair Housing and that too after
the handing over of possession. In fact, as noted earlier, appellant
No.2 and Mayfair Housing jumped into the fray only after
33
appellant No.1 completed the work of filling, levelling,
construction of Storm Water Drains etc., through their Architects
and handed over possession on 09.12.1995 and received DRC for
the surrender of the land on 02.01.1996;
(x) It is interesting to note that the two deeds of Power of
Attorney executed by appellant No.1 in favour of appellant No.2
are dated 24.12.1996. But even before the said date, Mayfair
Housing writes a letter dated 20.11.1996 seeking permission to
develop and maintain a garden in the land. At the cost of
repetition, it should be stated that if cutting, filling, levelling etc.,
constituted the development of amenity for the purpose of earning
Additional TDR, they have all been done even before Mayfair
Housing came into the picture. If the development of amenity had
already taken place, there was nothing for Mayfair Housing to do
and yet they seek by a letter dated 20.11.1996 permission to
develop and maintain a garden;
(xi) A list of works to be carried out for the purpose of
maintenance of the garden annexed to the note of the Deputy
Municipal Commissioner shows that they were primarily for the
maintenance of the existing facilities;
(xii) Another conundrum evidenced by the documents is
that the second deed of Power of Attorney dated 24.12.1996
authorises the power agent to apply for getting permission from
the authorised department of the Corporation for the construction
of Recreation Ground. Some of the clauses contained in the
second deed of Power of Attorney empowering appellant No.2 to
seek additional TDR read as follows:-
“ 2. To apply for getting the permission from the
authorized department of the Corporation for the
34
construction of the Recreation Ground in
accordance to the plans/specifications as
approved by the Municipal Corporation of Greater
Bombay .
4. To carry out, from time to time, construction
of the Recreation Ground or such other
construction/development as may be required by
the Municipal Corporation of Greater Bombay in
phase/phases, in terms of the plans approved by
the Municipal Corporation of Greater Bombay.
11. To appoint, from time to time, architects,
engineers, surveyors, contractors, R.C.C.
Consultants and other professionals, designers
and other persons for preparing the plans for
construction of the Recreation Ground and sign
and submit any and all such plans, designs and
specifications with or without applications as the
occasion may require to the Competent Authorities,
Municipal Corporation of Greater Bombay and all
other appropriate authorities like the Maharashtra
State Electricity Board and Aviation Authorities,
etc., for approval.
17. To apply for and obtain from time to time , the
amenity Transferable Development Rights/
Development Right Certificate of the Recreation
Ground so constructed, and to submit the
Development Right Certificate so issued for the
amenity TDRs/DRC to the Municipal Corporation of
Greater Bombay, for transferring and/or endorsement
of the same in the name of our Attorneys and /or in
the name of such nominee/nominees and/or such
person/persons as our Attorneys may decide for an
area amounting to 2,710 square metres equivalent to
29,170.175 sq.ft.”
41. To be precise, all activities undertaken by appellant No.1
through their Architects till the handing over of possession of the
land were not towards the development of amenity and for the
grant of Additional TDR. All those works were undertaken as part
35
of the effort to make the Corporation accept the surrender of land
and to grant TDR.
42. It is only after the entry of Mayfair Housing into the picture,
first with a letter of request dated 20.11.1996 to the Corporation
to develop and maintain the Recreation Ground and then with the
execution of the Power of Attorney by appellant No.1 on
24.12.1996 that the idea of developing an amenity and seeking
additional TDR had cropped up. But unfortunately, the
Corporation made it clear to Mayfair Housing represented by
appellant No.2 herein that he will not be entitled to Additional
TDR, for the development of Recreation Ground. In the letter
dated 23.01.1998 it was made clear to Mayfair Housing that no
TDR will be given to them.
43. It is relevant to point out here that when Mayfair Housing
sent a letter dated 20.11.1996 to the Corporation seeking
permission to develop and maintain the RG, they had nothing to
do with the surrendered land. Therefore, they were not entitled
either to TDR or to additional TDR. Realising this difficulty, they
appear to have got 2 deeds of PoA from appellant No.1 so as to
36
piggy ride on appellant No.1. In fact, the first PoA was redundant
since by the time it was executed, appellant No.1 had already
obtained DRC for TDR. Yet, the first PoA was towards TDR and
the second PoA was for additional TDR.
44
. Therefore, even an independent analysis of the
correspondence between the parties show that no amenity was
developed as required by law, by appellant No.1, to be entitled to
Additional TDR. In fact, we could have simply affixed our seal of
approval to the finding of fact recorded by the High Court of
Bombay in this regard, as the said finding does not appear to be
perverse. But instead of taking such a short-cut route, we have
gone into greater detail so that the valuable rights guaranteed to
appellant No.1 under Article 300A is not defeated.
45. Drawing our attention to the photographs of the Recreation
Ground as it exists, it was argued by the learned senior counsel
for the appellants that what was once a barren land, could not
have become what it is but for the activities undertaken by the
appellants. Therefore, his argument was that if this is not
37
construed as development of amenity, nothing else can be
construed so.
46. But unfortunately for the appellants, whatever they had
done through their Architects up to the date of handing over
possession and getting the DRC, was not projected by them as
the development of amenity. If all those activities up to the date of
handing over possession constituted development of amenity,
there was no necessity for appellant No.1 to give PoA to appellant
No.2 to undertake the activity of development of amenity and to
seek Additional TDR. If the work of development of amenity and
the lodging of a claim for additional TDR had been undertaken
only after Mayfair Housing entered into the picture, then the
appellants became bound by the condition laid down by the
Corporation that appellant No.2 will not be entitled to Additional
TDR.
47. Therefore, we are of the view that the High Court was right
in recording a finding of fact that the appellants did not develop
the amenity so as to be entitled to additional TDR. Once the
finding of fact made by the High Court in this regard is upheld,
38
the appeal should automatically meet with the fate that it
deserves. Accordingly, the appeal is dismissed. There will be no
order as to costs.
Pending application(s) if any, shall stand disposed of.
……………………………….. J.
(V. RAMASUBRAMANIAN)
……………………………….. J.
(PANKAJ MITHAL)
New Delhi;
May 08, 2023
39