Brihanmumbai Municipal Corporation vs Vijay Nagar Apartments

2026 INSC 517
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2026
(Arising out of SLP (C) No. 11541 of 2024)

BRIHANMUMBAI MUNICIPAL
CORPORATION AND ORS. …APPELLANT(S)

VERSUS

VIJAY NAGAR APARTMENTS AND ORS. …RESPONDENT(S)
J U D G M E N T
J.K. MAHESHWARI, J.
1. Leave granted.
2. The instant civil appeal arises out of the judgment dated
03.04.2024 passed by the High Court of Judicature at Bombay
(hereinafter referred to as ‘ High Court ’) in Writ Petition No. 3283
of 2019 whereby the writ petition filed by the Respondent Nos. 1
and 2 herein was allowed. The reliefs sought by the Respondent
Nos. 1 & 2 were twofold: (a) challenging the communication / letter
Signature Not Verified
Digitally signed by
NIDHI AHUJA
Date: 2026.05.20
17:41:34 IST
Reason:
dated 05.11.2019 by the Appellants; and (b) directing the
Appellants to grant additional amenity Transferrable Development
1

Rights (hereinafter referred to as ‘ TDR ’) in respect of land as
specified. Both the reliefs prayed have been granted vide the
Impugned Order.
3.
In the interest of easy comprehension and readability, the
Appellant shall be referred to as the ‘Corporation’ and the
Respondent No. 1 and 2 (the Partnership firm and one of its
partners) shall be referred to collectively as the ‘Landowner’.
FACTS
4. The facts, shorn of unnecessary details are that the Urban
Development Department of the Government of Maharashtra
reserved a property, i.e. lands bearing CTS Nos. 1A/4, 1A/10,
1A/14 (pt.), 1A/15 admeasuring 98,369.1 sq. mts. in village Anik,
Bhakti Park, Chembur, (hereinafter referred to as ‘ subject land ’)
which was then owned by the Landowner and in the Development
Plan issued vide its Notification No. TPB. 4393/2036/UD-11 (RDP)
dated 04.03.1994 under the Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as ‘ MRTP Act ’) it was
reserved for the purpose of ‘garden’. There was a stipulation in the
said order that the respective landowners shall develop the garden
2

on the subject land and then handover the same to the
Corporation.
5. Under the MRTP Act, acquisition of land for public purposes
and the compensation in lieu thereof is governed by Section 126 of
the MRTP Act. The said section prior to the amendment of the
MRTP Act in 2015, is relevant and is therefore quoted herein for
reference:
“ 126. Acquisition of land required for public purposes
specified in plans –
(1) Where after 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
purpose 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 principles laid down in the Land
Acquisition Act, 1894, 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 Floor Space
Index or Transferable Development Rights against
the development or construction of the amenity on
the surrendered land at his cost, as the Final
Development Control Regulations prepared in this
behalf provide , or
3

(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act,
1894,
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 Land Acquisition Act, 1894, as the case may be,
shall vest absolutely free from all encumbrances in the
Planning Authority, Development Authority, or as the case
may be, any Appropriate Authority.
(2) On receipt of such application if the State Government is
satisfied that the land specified in the application is needed
for the public purpose therein specified, or if the State
Government (except in cases falling under section 49 and
except as provided in section 113A) itself is of opinion that
any land included in any such plan is needed for any public
purpose, it may make a declaration to that effect in the
Official Gazette, in the manner provided in section 6 of the
Land Acquisition Act, 1894, in respect of the said land. The
declaration so published shall, notwithstanding anything
contained in the said Act, be deemed to be a declaration
duly made under the said section:
Provided that, subject to the provisions of sub-section (4), no
such declaration shall be made after the expiry of one year
from the date of publication of the draft Regional Plan,
Development Plan or any other Plan, or Scheme, as the case
may be.
(3) On publication of a declaration under the said section 6,
the Collector shall proceed to take order for the acquisition
of the land under the said Act; and the provisions of that Act
shall apply to the acquisition of the said land with the
modification that the market value of the land shall be, -
(i) where the land is to be acquired for the purpose of a
new town, the market value prevailing on the date of
publication of the notification constituting or declaring the
Development Authority for such town;
(ii) where the land is acquired for the purposes of a
Special Planning Authority, the market value prevailing
4

on the date of publication of the notification of the area
as undeveloped area; and
(iii) in any other case, the market value on the date of
publication of the interim development plan, the draft
development plan or the plan for the area or areas for
comprehensive development, whichever is earlier, or as
the case may be, the date or publication of the draft Town
Planning Scheme:
Provided that nothing in this sub-section shall affect the
date for the purpose of determining the market value of land
in respect of which proceedings for acquisition commenced
before the commencement of the Maharashtra Regional and
Town Planning (Second Amendment) Act, 1972 (Mah. XI of
1973):
Provided further that, for the purpose of clause (ii) of this
sub-section, the market value in respect of land included in
any undeveloped area notified under sub-section (1) of
section 40 prior to the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,
1972 (Mah. XI of 1973), shall be the market value prevailing
on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and sub-section (3), if a declaration, is not
made within the period referred to in sub-section (2) (or
having been made, the aforesaid period expired on the
commencement of the Maharashtra Regional and Town
Planning (Amendment) Act, 1993), the State Government
may make a fresh declaration for acquiring the land under
the Land Acquisition Act, 1894, in the manner provided by
sub-sections (2) and (3) of this section, subject to the
modification that the market value of the land shall be the
market value at the date of declaration in the Official
Gazette, made for acquiring the land afresh.”
(Emphasis supplied)
6. Pursuant to an application dated 06.07.2001 by the
Landowner to the Corporation under Section 126(1)(b) of the MRTP
Act, the Corporation issued a Letter of Intent dated 13.12.2001
5

(hereinafter referred to as ‘ LOI ’) whereby the Corporation conveyed
to the Landowner that it shall grant Development Rights Certificate
(hereinafter referred to as ‘ DRC ’) in lieu of transfer of the subject
land in favour of the Corporation. DRC is said to be the physical
manifestation of the TDR which is granted in lieu of the land which
is to be acquired. In the said LOI, there was a specific stipulation
that the Landowner shall develop the garden as per the
specifications of the Corporation and maintain it for a period of 20
years, in lieu whereof, the Landowner shall not claim any ‘Amenity
TDR’ towards the development of the garden. Relevant paragraphs
of the LOI have been quoted herein for reference:
“ …
3. That you will develop the said Garden plots as per the
Municipal Specifications & you will submit registered
undertaking that you will develop the said Garden as per
the Specifications laid down by the Corporation and
maintain it for a further period of next 20 years, at your cost
and will not claim any amenity TDR towards Development
of Garden.
…
7. That board showing that the land owned by the Municipal
Corporation of Greater Mumbai shall be provided on site.
…
12. That necessary legal documents for transferring the
land in favour of the MCGM shall be executed at your own
cost.
… ”
6

7. In the meanwhile, the subject land was developed as a garden
by the Landowner as per the specifications of the Corporation, and
no objection for issuance of completion certificate was granted by
the Superintendent of Gardens and Tree Officer of the Corporation
vide his letter dated 21.12.2001.
8. On 10.01.2002, the Constituted Attorney of the Landowner
signed an Undertaking, agreeing that the garden shall be
maintained by it for a period of 20 years at its own cost and it shall
not claim any amenity TDR towards the development of the garden.
Relevant portion of the undertaking dated 10.01.2002 is quoted
herein for reference:
“ …
That I will develop the said Garden as per the specification
laid down by the Corporation and maintain it for a further
period of next 20 years from the date of handing over the
land to MCOM at my cost and I will not claim any amenity
TDR towards Development of Garden.
This Undertaking is binding upon me, my heirs, executors
and administrators, assigns.
… ”
9. The actual physical possession of the subject land was
handed over to the Corporation between January 2002 to October
2002. In exchange for the same, TDR as compensation to the
extent of the land itself was released to then Landowner between
7

February 2002 to February 2003. There is no dispute between the
parties regarding the release of TDR in respect of the land itself.
10. On 27.11.2002, a Maintenance Agreement was entered into
between the Corporation and the Landowner, which provided inter
alia that the Landowner shall develop the garden on an ‘adoption
basis’ for a period of 20 years from 2002 to 2022 and in exchange,
the Landowner shall not claim any Amenity TDR / Floor Space
Index (hereinafter referred to as ‘ FSI ’) or any other compensation
towards development and maintenance of the garden. Relevant
portion of the Maintenance Agreement is quoted herein for
reference:
“ 1. The Municipal Corporation of Greater Mumbai shall
allow the Organization to maintain the Garden on adoption
basis (yearly renewal basis) for the period not exceeding
twenty years from 2002 to 2022 subject to condition that
the said plot shall be properly maintained as per the
Municipal specification at their own cost without claiming
any amenity TDR/FSI or any compensation towards the
development and maintenance of the said Garden to the
satisfaction of the Corporation and as per the detailed
layout plan annexed herewith. ”
11. Pursuant to the Maintenance Agreement, although title of the
subject land had been transferred in favour of the Corporation,
possession was retained by the Landowner, which continued to
manage and maintain the garden on ‘adoption basis’,
8

uninterrupted till the year 2016. In 2016, vide its letter dated
14.03.2016, pursuant to separate proceedings before the Learned
Lokayukta, the Corporation demanded actual possession of the
garden from the Landowner.
12. We must pause here and briefly narrate the proceedings
before the Learned Lokayukta, although they are not under
challenge in this appeal, since they find mention in the writ
petition of the Landowner and the orders passed in the said
proceedings have a material bearing on this case. The Learned
Lokayukta vide order dated 17.11.2015 took up suo moto , on the
basis of a news report, the issue of the garden on the subject land
not being accessible to the general public. In the said proceedings,
the Learned Lokayukta took a view in the order dated 15.01.2016
that the Maintenance Agreement was being misused by the
Landowner to advertise their property / project as a prime project
and directed the Corporation to take possession of the subject
land. In the subsequent order dated 18.01.2016 in the said
proceedings, the Learned Lokayukta recorded that the subject land
was not a garden, but rather was being used as a playground for
playing cricket by the elite class and common man was not being
given access to the subject land. It was said that the power of
9

attorney holder of the Landowner, Shri Atul Ajmera through
Ajmera Builders was exploiting the land. It is pursuant to these
proceedings that the order dated 14.03.2016 was passed by the
Corporation demanding possession of the garden.
13. The Landowner handed over possession of the subject land
to the Corporation on 02.06.2016 without any demur or claim for
additional amenity TDR at this stage. In the meanwhile, on
03.05.2018, the Development Control Regulations, 1991
(hereinafter referred to as ‘ DCR, 1991 ’) under which the subject
land was reserved and developed as a garden, was superseded by
the Development Control and Promotion Regulations, 2034
(hereinafter referred to as ‘ DCPR, 2034 ’)
14. It was only on 04.04.2019 that the Landowner made a claim
for grant of additional amenity TDR against the development of the
amenity of garden on the subject land. It was this request for grant
of additional amenity TDR which was denied by the Corporation
vide its Letter No. ChE/DP/18527/TDR dated 05.11.2019
(hereinafter referred to as ‘ Rejection Order ’) which was impugned
by the Landowner before the High Court in the writ petition. The
grounds for rejection, in brief, as specified in the Rejection Order
are as follows:
10

14.1. There was a delay of 17 years in making the claim for
additional amenity TDR against the development of the
garden on the subject land.
14.2.
There is no provision for grant of additional TDR against
development of amenity in the DCPR, 2034 and the DCR,
1991 is no longer in force.
14.3. Such a claim for additional amenity TDR is contrary to the
terms and conditions of the LOI, Undertaking and
Maintenance Agreement between the Landowner and the
Corporation.
IMPUGNED ORDER
15. The High Court vide the Impugned Order has allowed the
claim of the Landowner for additional amenity TDR against the
development of the garden on the subject land. The High Court has
placed reliance on the judgment of this Court in Sukh Dutt Ratra
1
& Anr. v. State of Himachal Pradesh and Ors. , to hold that no
argument of delay and laches can be sustained where there is a
continuing cause of action. The Court observed that it is unclear
whether the argument of the Corporation is one of waiver,
acquiescence or estoppel, since estoppel has not been pleaded by

1
(2022) 7 SCC 508.
11

the Corporation. The Court has found that the maintenance
agreement whereby the Landowner was permitted to maintain the
garden on the subject land has to be read along with the condition
that the Landowner shall not claim additional amenity TDR. The
entitlement to maintain the garden was the benefit attached in lieu
of the condition that the Landowner shall not claim additional
amenity TDR and once the said entitlement had been withdrawn
by the Corporation, the condition itself could not survive on its
own. In the said context, the Court relied upon paragraphs 51 and
52 of the judgment of this Court in Godrej & Boyce
2
Manufacturing Co. Ltd. v. State of Maharashtra & Ors. ,
(hereinafter referred to as ‘ Godrej & Boyce I ’) that the TDR against
the land and the additional amenity TDR is to be provided ‘against’
the surrender of land and ‘against’ the development construction
under Section 126 of the MRTP Act. As such, the condition for non-
claim of additional amenity TDR was only suspended or deferred
until the Landowner was being permitted to maintain the garden
on the subject land. On the point of non-applicability of DCR,
1991, the Court found that the development, the LOI, the
undertaking and the concept of TDR was predicated on the DCR,

2
(2009) 5 SCC 24.
12

1991 and so therefore the DCPR, 2034 cannot be applied to the
subject land.
ARGUMENTS ADVANCED
16.
Mr. Dhruv Mehta, learned senior counsel appearing for the
Corporation has argued with much vehemence that the impugned
judgment passed by the High Court deserves to be set aside,
broadly on the following grounds:
16.1. The High Court has engaged in ‘rewriting’ the commercial
contract between the parties.
16.2. The finding of the High Court that the disclaimer of
additional Amenity TDR by the Landowner was tied to the
‘benefit’ of maintenance of the garden was completely
erroneous and could not be borne out from the LOI, the
Maintenance Agreement or the Undertaking by the
Landowner. In this context, he has relied upon the
judgment of this Court in Rajasthan State Industrial
Development & Investment Corpn. v. Diamond & Gem
3
Development Corpn. Ltd. , to submit that the terms of

3
(2013) 5 SCC 470.
13

the contract have to be read without any external aid and
such terms must be construed strictly.
16.3. Further, the subject land / garden is not an amenity
within the meaning of the MRTP Act since it was being
used for personal benefit and commercial exploitation and
not for the BMC.
16.4. He submits that the DCPR, 2034 had come into force on
13.11.2018 and the application seeking additional
amenity TDR was made on 04.04.2019 and therefore, no
such claim could be made under the DCR, 1991 which
had by then been superseded. Reliance is placed on the
judgment of this Court in T. Vijayalakshmi v. Town
4
Planning Member , to submit that the development
regulations applicable on the date when the application is
made have to be applied.
16.5. Since the Landowner claimed its right to additional
amenity TDR in 2019, though crystallized it in 2002, after
an unexplained and un-condonable delay of about 17
years. In support of such contention reliance was placed
on the judgment of this Court in Shri Vallabh Glass

4
(2006) 8 SCC 502.
14

5
Works Ltd. v. Union of India , as well as Municipal
Corpn., Greater Mumbai v. Century Textiles &
6
Industries Ltd. , . He has submitted that no plea has been
taken by the Landowner in its writ petition that there is a
continuing cause of action, therefore the High Court has
erred in relying upon the judgment in Sukh Dutt Ratra
(supra).
16.6. Last, but certainly not the least, on the question of waiver
of rights by the Landowner, learned senior counsel
appearing for the Corporation has submitted that a
mandatory provision of law made for the protection or
benefit of a private individual can be waived by that person
as long as there is no public interest involved. In support,
reliance has been placed on the judgments of this Court
7
in Lachoo Mal v. Radhey Shyam , Sita Ram Gupta v.
8
Punjab National Bank , Bank of India v. O.P.
9
Swarnakar . He submits that the finding of the High
Court that waiver or estoppel has not been pleaded by the
Corporation is erroneous and stares at the face of the

5
(1984) 3 SCC 362.
6
(2025) 3 SCC 183.
7
(1971) 1 SCC 619.
8
(2008) 5 SCC 711.
9
(2003) 2 SCC 721.
15

record, inasmuch as the same is pleaded in the
Corporation’s counter affidavit filed before the High Court,
particularly in paragraph 5 and 10 thereof.
17.
Mr. Mukul Rohatgi and Mr. Pravin Samdani, learned senior
counsel has appeared on behalf of the Landowner and defended
the impugned judgment with equal vehemence. They have made
the following broad submissions:
17.1. Under the scheme of Section 126(1)(b) of the MRTP Act,
the compensation against surrendered land is in two
parts: firstly, as FSI/TDR equal to the land surrendered
and transferred and secondly, FSI/TDR equal to the area
of amenity developed / constructed. The Landowner had
been granted the first part of the compensation but denied
the second part of the compensation by the Corporation.
He has submitted that the payment of compensation in
such form is a requirement under the statute and denial
thereof is contrary to the MRPT Act, read with the DCR,
1991 as well as Article 300A of the Constitution of India.
17.2. They have assiduously urged that there can be no case of
contracting out of the statute and any contractual clauses
contrary to the statutory scheme cannot be sustained.
16

17.3. Further, no estoppel can act against the Landowner since
there cannot be any estoppel against the statute.
17.4. Any acquisition of land has to be made subject to Article
300A of the Constitution of India which requires
acquisition in accordance with law. As such, no person
can be deprived of his property without strict compliance
of the requirements under the MRTP Act and no
extraneous condition can be imposed by means of a
subsequent agreement.
17.5. They further submit that the right to receive rightful
compensation against acquisition of land is a continuing
cause of action, therefore, it cannot be said that there is a
delay of 17 years in claiming the second part of the
compensation, i.e. claim for additional Amenity TDR
under the MRTP Act. Reliance has been placed on the
judgment of this Court in Kukreja Construction
10
Company and Ors. v. State of Maharashtra and Ors.

17.6. Regarding the application of DCPR, 2034, they have
argued that right to receive additional amenity TDR under
Section 126 of the MRTP Act accrued in favour of the

10
(2024) 14 SCC 594.
17

Landowner way back in 2002 when the DCR, 1991 was
applicable and as such, it cannot be said that coming into
force of the DCPR, 2034 had any effect on the rights of the
Landowner which had already crystallized. Reliance is
again placed on the judgment in Kukreja Construction
(supra).
QUESTIONS
18. We have heard the learned senior counsel for the parties
extensively and have perused the exhaustive record at our
disposal. Upon perusal thereof, the following questions fall for our
consideration:
18.1. Whether the claim for additional amenity TDR in the instant
case is barred by delay and laches?
18.2. Whether the Landowner had waived its right to claim
additional amenity TDR under Section 126 of the MRTP Act,
particularly in view of the LOI, Undertaking and
Maintenance Agreement signed by it?
ANALYSIS OF ISSUES
19. Since the issues framed are inextricably linked, they are
being analysed by us conjointly. The present case relates to grant
18

of fair compensation in exchange for land which has been acquired
by the State. The scheme for acquisition under the MRTP Act has
been provided for in Section 125 of the MRTP Act (prior to its
amendment in 2015). The said provision is relevant and is
therefore quoted hereunder:
“ 125. Compulsory acquisition of land needed for
purposes of Regional plan, Development plan or town
planning schemes etc. –
Any land required, reserved or designated in a Regional
plan, Development plan or town planning scheme for a
public purpose or purposes including plans for any public
purpose within the meaning of the Land Acquisition Act,
1894 (I of 1894). ”
20. Further, it is Section 126(1) of the MRTP Act which
determines how compensation in exchange for acquisition of land
under the said Act is to be determined; it provides three different
methods for acquisition of such land. , under Section
First
126(1)(a), the appropriate authority may acquire land reserved for
public purpose from the landowner or lessee by paying an amount
agreed to between them. Second , under Section 126(1)(b), instead
of paying an agreed amount, the appropriate authority may grant
to the landowner or the lessee ( subject to the lessee paying the
lessor or depositing with the appropriate authorities an amount
equivalent to the value of the lessor’s interest to be determined by
19

the said authorities concerned on the basis of the principles laid
down in the Land Acquisition Act, 1894 ), FSI or TDR against the
area of land surrendered free of cost and free from all
encumbrances, and also further additional FSI or TDR against the
development or construction of the amenity on the surrendered
land at his cost as the Final Development Control Regulations
prepared in that regard provide. Third , by acquisition of the land
under the Land Acquisition Act, 1984 (prior to amendment of the
MRTP Act) and Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (after
amendment of the MRTP Act).
21. The word ‘amenity’ itself has been defined in Section 2(2) of
the MRTP Act, which reads as follows:
“ 2.(2) ‘Amenity’ means roads, streets, open spaces, parks,
recreational grounds, playgrounds, 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 lightning, sewerage, drainage, public works
and includes other utilities, service and conveniences. ”

22. ‘Amenity’ has also been defined in Regulation 2(7) of the DCR
1991 as follows:
“‘Amenity’ means roads, streets, open spaces, parks,
recreational grounds, play grounds, gardens, water supply,
20

electricity supply, street lighting, sewerage, drainage,
public works and other utilities, services and conveniences.”
23. In the present case, we are concerned with development of a
garden on the subject land, and from the aforementioned
definitions, we find that ‘garden’ falls within the definition of
amenity under the DCR, 1991 as well as the MRTP Act.
24. We are concerned with the second method of acquisition in
the present case under Section 126(1)(b) of the MRTP Act which
was inserted into the Act by an amendment with effect from
25.03.1991. It provides that land demarcated for a public purpose
may be acquired by the relevant authorities of the State, without
any encumbrances, practically without granting any monetary
compensation, by instead granting to the owner FSI or TDR against
the area of the land surrendered as well as ‘in addition’ additional
FSI or TDR against the development or construction of amenities
on the land by the owner at his own cost. There is no dispute
between the parties in respect of the FSI or TDR against the land
surrendered, but the controversy between the parties in the case
at hand relates to the additional FSI or TDR which is to be granted
against the development or construction of an amenity on the said
land.
21

25. Regulation 34 of the DCR, 1991 which references Appendix
VII (subsequently renumbered as Appendix VII-A) governs the
grant of TDR in the form of DRC. The said regulation and relevant
portion of the referenced appendix is relevant and is quoted for
reference:
“ 34. Transfer of Development Rights
In certain circumstances the development potential of a plot
of land may be separate from the land itself and may be
made available to the owner of the land in the form of
Transferable Development Rights (TDR). These rights may
be available and be subject to the Regulations in Appendix
VII hereto.”
…
Appendix VII-A (Regulation 34)
1. The owner (or lessee of a plot of land which is reserved
for a public purpose in the development plan and for
additional amenities deemed to be reservations provided in
accordance with these Regulations, excepting in the case of
an existing or retention user or any required compulsory or
recreational open space, shall be eligible for the award of
Transferable Development Rights (TDRs) in the form of Floor
Space Index (FSI) to the extent and on the conditions set out
below. Such award will entitle the owner of the land to FSI
in the form of Development Rights Certificate (DRC) which
he may use himself or transfer to any other person.
2. Subject to Regulation 1 above, where a plot of land is
reserved for any purpose specified in Section 22 of the
Maharashtra Regional and Town Planning Act, 1966, the
owner will be eligible for development rights (DRs) to the
extent stipulated in Regulations 5 and 6 in this appendix
had the land been not so reserved, after the said land is
surrendered free of cost as stipulated in Regulations 5 in
this appendix, and after completion of the development or
construction as in Regulation in this appendix if he
undertakes the same.
22

3. Development rights (DRs) will be granted to an owner or
a lessee only for reserved lands which are retainable/non-
retainable under the Urban Land (Ceiling and Regulation)
Act, 1976, and in respect of all other reserved lands to
which the provisions of the aforesaid Act do not apply, and
on production of a certificate to this effect from the
competent authority under that Act before a development
right is granted. In the case of non-retainable lands, the
grant of development rights shall be to such extent and
subject to such conditions as the Government may specify.
Development rights (DRs) are available only in cases where
the development of a reservation has not been implemented
i.e. TDRs will be available only for prospective development
of reservations.
4. Development Rights Certificates (DRCs) will be issued by
the Commissioner himself. They will state, in figures and in
words, the FSI credit in square metres of the built-up area
to which the owner or lessee of the said reserved plot is
entitled, the place and user zone in which the DRs are
earned and the areas in which such credit may be utilized.
5. The build-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
wherefrom the TDR has originated.
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 utilization of
which, etc. will be subject to Regulations contained in
this appendix.
7. A DRC will be issued only on the satisfactory
compliance with the conditions prescribed in this
appendix.”
(Emphasis supplied)
23

26. The grant of TDR in the form of FSI is a mechanism which
unlinks the development rights over a land from the land itself.
The physical / documentary manifestation of such TDR is in the
form of a DRC which often has high monetary value and may be
traded in the market or transferred from one person to another.
The value of such DRC is like a traded commodity and it depends
on market demand and supply. This TDR obtained against an
immovable property can be used to develop structures on a
different property. As such, under Section 126(1)(b) of the MRTP
Act, a unique form of compensation against the land and against
the development / construction of an amenity by the landowner
on the surrendered land, in form of an asset that is DRC, has been
envisaged by the legislature, which is quite distinct from the usual
monetary compensation by means of an agreement (which would
fall within Section 126(1)(a) of the MRTP Act) or by means of
acquisition proceedings under the relevant laws (which would fall
within Section 126(1)(c) of the MRTP Act).
Judgments of this Court
27. The question of grant of additional TDR against development
/ construction of an amenity on a land acquired under Section
126(1)(b) of the MRTP Act has been the subject matter of previous
24

litigation before this Court. Before embarking upon a discussion
about the applicability of the judgments therein to the facts of the
instant case, it would be apposite to discuss the said cases.
28. Godrej & Boyce I
In (supra), which has been relied upon by
the High Court in the impugned order, the plots owned by the
appellants therein were reserved for roads under the DCR 1991.
The appellants constructed the said roads at their own cost and
they were compensated in the form of TDR against the land
surrendered by them. Upon making a claim for additional TDR
against the amenity constructed / developed by them to the extent
of the surface area of the road so developed, their claim was denied
by the Corporation relying upon its Circular dated 09.04.1996
which permitted additional TDR in the form of FSI equal to built-
up area of the amenities such as hospitals, municipalities, primary
schools, etc. but limited the grant of additional TDR against the
construction of amenity of development plan roads to 15% of the
surface of the road. The said circular was put to challenge by way
of a writ petition filed by the appellant therein before the High
Court, which dismissed the same, accepting the contention of the
Corporation that the differentiation between different kinds of
amenities in grant of additional amenity TDR is valid since it
25

ensures that no discrimination may be caused between different
forms of amenities, quantifying the exchange value of different
commodities based on their construction cost. The High Court
observed that the use of the word ‘equivalent’ in Paragraph 6 of
Appendix VII of DCR, 1991 required grant of development rights
equivalent to the ‘value’ of the amenity concerned.
29. This Court, however, set aside the judgment of the High
Court, finding that grant of additional FSI or TDR against the
development of an amenity by the landowner at their own cost
would be equivalent to the ‘area’ of the construction or
development made on the land as opposed to its ‘value’. This Court
stressed on the use of the word ‘against’ in Section 126(1)(b) of the
MRTP Act and found that it was a compensation to the landowner
proportionate to the area of the development / construction of
amenity on the land surrendered by the landowner. It was also
specifically observed by this Court that the Circular issued by the
Corporation cannot override the provisions of the MRTP Act.
Relevant paragraphs of the said judgement are quoted herein for
reference:
“ 50. We are unable to agree with the view taken by the
Bombay High Court and to accept the submissions of Mr
26

Naphade because it seems to us to do violence to the plain
language of the statute.
51. Section 126(1)(b) of the Act uses the word “against”: it
speaks of granting FSI or TDR “against the area of land
surrendered” and further additional FSI or TDR “against the
development or construction of amenities on the
surrendered land”. Now, one of the meanings of the word
“against” is given as “in return of something” e.g. the
exchange rate against Franc” (Chambers 21st Century
Dictionary, 1st published in India 1997, reprinted
1999). Webster's Third New International Dictionary gives
the meaning of the word “against” as “in exchange for: in
return for”. Concise Oxford English Dictionary gives one of
the meanings of the word as “in exchange for, in return for;
as an equivalent or set-off for; in lieu of, instead of”.
52. Thus, on the basis of the language used in Section
126(1)(b) it could be legitimately argued that what is
contemplated is to recompense the landowner proportionate
to the value of the development or construction of the
amenity on the surrendered land. But the matter does not
stop there. As seen above in Appendix VII to the Regulations
Para 5 uses the words “equal to the gross area of reserved
plot”. Therefore, insofar as the bare land is concerned there
is no difficulty. Para 6 of the appendix, however, uses the
words “equivalent to the area of the
construction/development” and much argument is made on
the meaning of the word equivalent.
…
57. The last of the above makes the meaning of the word
“equivalent” very clear by explaining it in contradistinction
to the word “equal”. It says equivalent is equal in
such properties as affect the use which we make of things.
Seen thus any of the relevant properties e.g. value, area,
volume, quantity, quality, etc. may form the basis for
determining equivalence. Now, if the words in Para 6 of the
Schedule were to be “equivalent to the
construction/development” then the submission of Mr
Naphade would have been fully acceptable as in that case
it would be open to determine equivalence on the basis of
value of the construction and not on any other basis. But the
regulation fixes the measure of equivalence by using the
27

words “equivalent to the area of construction/development
done on the surrendered land”. “Area” of
construction/development having being fixed as the
measure of equivalence it is no longer open to contend that
any other basis such as value may be used for determining
equivalence.
58. We may here make it clear that we fully appreciate the
rationale behind trying to make value of the
development/construction rather than its area as the basis
to recompense the landowner and for granting the
additional FSI or TDR. The submissions of Mr Naphade in
that regard are not without substance but that is not the law
as it stands and the value of the development/construction
can only be made the basis for granting additional FSI or
TDR by making suitable amendments in the law and not by
an executive circular. ”
30. Further, in the said case, a specific plea was taken by the
Corporation that the landowners having agreed to surrender their
land in exchange for 100% TDR in lieu of the land, could not make
further claim for additional TDR against the amenity constructed
on the land. The Corporation claimed that the acquisition under
Section 126(1)(b) of the MRTP Act was based on conditions which
were imposed upon the landowners who surrendered their land
which had been negotiated, and such conditions were binding, in
effect the landowners had waived their rights. It was even
contended by the Corporation that the grant of 15% and later 25%
TDR against the construction of the road on the said land was
indulgence shown by the Corporation. All of these contentions
were specifically recorded and rejected by this Court, observing
28

inter alia that the compensation is ordained under the statute and
the statutory rights of the landowner cannot be derogated from by
means of negotiation. The relevant portion of the said judgment in
Godrej & Boyce I
is quoted herein for reference:
“ 60. Apart from the contention raised by Mr Naphade, Mr
Shishodia, Senior Advocate appearing for the Municipal
Corporation, Greater Mumbai resisted the claims of the
appellants and the writ petitioners on certain other grounds.
Mr Shishodia submitted that for acquisition of the
designated plot of land recourse to clause (b) of sub-section
(1) of Section 126 of the Act could only be taken by mutual
agreement of the parties concerned. It was equally open to
the municipal authorities not to accept the surrender of the
land under clause (b) as it was open to the landowner to
make the offer. Therefore, it followed according to him,
that the municipal authorities could accept
acquisition of the land in terms of clause (b) on certain
conditions to which the landowner might or might not
agree. In case the landowner did not agree to the
condition(s) put by the municipal authority he would
not surrender the land and then the acquisition of the
land could take place either in terms of clause (a) or
clause (c) of Section 126(1) .
61. Mr Shishodia submitted that the appellants in all
the cases had agreed to construct the road as part of
the condition to surrender the land and getting 100%
TDR in lieu of the land. According to him, since the
construction of the road was a condition for grant of
100% TDR for the bare land the appellants and the
petitioners were not entitled to claim any further TDR
at all for construction of the roads by them.
62.
Mr Shishodia further submitted that it was only
indulgence shown to the appellants and the petitioners that
the municipal authorities agreed to give them additional
TDR to the extent of 15% of the road area after the issuance
of Circular dated 9-4-1996 and 25% of the road area after
the issuance of the Circular dated 5-4-2003.
29

63. The submission of Mr Shishodia is completely
unacceptable. The conditions, that is to say, the
mutual rights and obligations subject to which the
landowner may offer to surrender the designated plot
of land to municipal authority and the latter may
accept the offer are enumerated in detail in the
statutory provisions. Beyond those conditions there
can be no negotiations for surrender of the land,
particularly in derogation to the landowner's
statutory rights .
64. Having regard to the nature of the law the submission
advanced on behalf of the municipal authority would lead
to palpably unjust and inequitable results. The landowner
whose land is designated in the development plan as
reserved for any of the purposes enumerated in
Section 22 of the Act or for any of the amenities as
defined under Section 2(2) of the Act or Regulation 2(7)
[sic Regulation 3(7)] of the Regulations is not left with
many options and he does not have the same
bargaining position as the municipal authority.
Therefore, surrender of the land in terms of clause (b)
of Section 126(1) of the Act cannot be subjected to any
further conditions than those already provided for in
the statutory provisions. It is of course open to the
legislature to add to the conditions provided for in the
statute (or for that matter to do away with certain
conditions that might be in existence). But it certainly
cannot be left in the hands of the executive to impose
conditions in addition to those in the statutes for
accepting the offer to surrender the designated land.
65. Mr Shishodia next submitted that the measure of 15%
(later raised to 25%) of the area of the road constructed for
grant of TDR by the impugned Circulars of 9-4-1996, 5-4-
2003 and 5-5-2004 was decided in meetings in which Mr
Nayan M. Shah, constituted attorney of the appellants, was
also present as the representative of the industry. Hence, it
was no longer open to the appellants and the petitioners to
question those circulars. We are once again unable to
accept the submission, Mr Shah might have been
present in the meeting and he might or might not have
voted for the graded scheme for grant of additional
TDR but that would not authorise the municipal
30

authorities to override or supersede the statutory
provisions by issuing circulars in the nature of
executive instructions. ”
(Emphasis supplied)

31. In Municipal Corpn., Greater Bombay v. Yeshwant
11
Jagannath Vaity , this Court examined the applicability of the
judgment in Godrej & Boyce I (supra) in the facts of that case
where the landowner therein had laid down asphalt on a
courtyard. This Court found that the matter was covered by the
judgment in Godrej & Boyce I (supra) and that similar arguments
made by the Corporation which were already rejected by this Court
in the said judgment could not be re-agitated. Relevant paragraphs
of the said judgment are quoted herein for reference:
“ 31. In view of this unequivocal declaration of law by this
Court in the aforementioned case of Godrej & Boyce [(2009)
5 SCC 24 : (2009) 2 SCC (Civ) 368] , in fact, law seems to be
fully settled against the appellants. It is, however, argued
that asphalting of the courtyard could not be said to be an
“amenity”. The argument must fail as the very stance on the
part of MCGB to provide 15% of additional TDR for
asphalting the courtyard would contain an admission that
asphalting of the courtyard would amount to an amenity.
Had it not been so, MCGB could have conveniently said that
it would not provide even 1% of additional TDR to the
respondents herein. Further, considering the definition of
“amenity” under Regulation 3(7) of the Regulations, which
includes open spaces, parks, recreational grounds,
playgrounds, etc. we have no difficulty in holding that
asphalting the courtyard would certainly amount to an
amenity. The building offered to be constructed by the

11
(2011) 11 SCC 88.
31

respondents herein was an export office. Considering the
overall situation prevailing in Mumbai, the asphalting of the
whole courtyard and thus providing parking lot would
certainly amount to an amenity. After all, the office, by its
very nature, would attract trucks and other vehicles. In the
absence of an asphalted large area, the office could possibly
not be a feasible idea. On this count, the argument of the
appellants must fail.
32. Shri U.U. Lalit, learned Senior Counsel appearing on
behalf of the appellants then urged that the respondents
herein had specifically agreed in the letter dated 22-
2-1995 and more particularly in terms of Condition 4
thereof that the Municipal Corporation will grant the
benefit of TDR in respect of the concrete/asphalted
surface area around the export office building as and
when the quantum of such TDR is decided by the
Municipal Commissioner. It was very earnestly argued
by the learned Senior Counsel that thereby the respondents
had compromised their rights and had left it to the discretion
of the Municipal Commissioner and, therefore, they could
not turn around and say that it was not for the Municipal
Commissioner then to decide the quantum as per his own
discretion. The argument is clearly incorrect for the
simple reason that on the day when this letter was
signed, the aforementioned Circular dated 9-4-1996
was nowhere in existence. The respondents, therefore,
had no reason to believe that the Municipal
Commissioner would decide to scale down the
entitlement which they legitimately expected because
of Paras 5 and 6 in Appendix VII. The aforementioned
letter merely provided that the quantum could be
decided in terms of the area of courtyard to be
developed and the grant of TDR would depend upon
as to whether that much area was fully developed as
per the satisfaction of the Municipal Commissioner.
The scope of Condition 4 could not be taken beyond
this.
33. Shri Lalit, learned Senior Counsel, relying on Para 15,
also argued that the landowner was to get TDR only on the
land being levelled to the surrendering ground level and a
1.5 m high compound wall was constructed with a gate, at
the cost of the owner. That may be so; however, in our view,
32

the agreement on the part of respondents to construct such
a compound wall and gate and to do the levelling of the land
before handing over the land admeasuring 3500 sq m,
would be of no consequence insofar as the present
controversy is concerned. The further argument of the
learned Senior Counsel about the difference in the
phraseology in Paras 5 and 6 i.e. the word “equal” having
been used in Para 5 and the word “equivalent” having been
used in Para 6 would also be of no consequence as, in our
opinion, the same has been concluded by the
aforementioned ruling of this Court in Godrej & Boyce
case [(2009) 5 SCC 24 : (2009) 2 SCC (Civ) 368] against the
appellants, and, therefore, the argument that it gives a
discretion to the Municipal authorities to scale down
the grantable TDR, does not impress us. That apart,
in the aforementioned ruling in Godrej & Boyce
case [(2009) 5 SCC 24 : (2009) 2 SCC (Civ) 368] , the
Court has clearly held that in a circular, the
Corporation could not have created divisions in the
total amenities in the sense that it could not have
chosen to grant 100% of additional TDR in favour of
some amenities and 15% in case of some others.
…
36. Lastly, Shri Lalit, learned Senior Counsel urged that the
ruling in Godrej & Boyce case [(2009) 5 SCC 24 : (2009) 2
SCC (Civ) 368] was distinguishable inasmuch as under the
said ruling what was considered was the construction of a
road which was not equivalent to asphalting of a courtyard.
We have already pointed out that the question was not of
the construction of a road or asphalting of a courtyard; the
question was whether it was an amenity. Once it is held as
an amenity, there will be no question of refusing the right of
equivalent TDR therefor. It was then urged that the Circular
dated 9-4-1996 in Godrej & Boyce case [(2009) 5 SCC 24 :
(2009) 2 SCC (Civ) 368] was issued after the landowners
had surrendered their plot of land and completed the
construction of roads as required by the Municipal
Corporation, whereas in the present matter, the circular was
issued “prior to” completion of the construction of the export
office by Respondents 1 to 3 and asphalting of the courtyard
and handing over of the possession by them. In our opinion,
this cannot be the distinguishable feature, as under any
33

circumstance, the Circular dated 9-4-1996 was issued
much after the compromise in the writ petition and the
issuance of letter of intent dated 22-2-1995. No other point
was urged before us.”
(Emphasis supplied)
32. On a perusal of paragraph 32 of the judgment of this Court
in Yeshwant Jagannath Vaity (supra), an argument was again
raised by the Corporation that the landowners in that case had
given up their rights in respect of additional TDR against the
construction or development of amenity on the land surrendered
since they had admitted in a letter that the Corporation shall
decide the quantum of additional TDR. The said contention was
rejected by this Court, which observed that on the date when the
letter was signed, the Circular dated 09.04.1996 did not exist and
there was no reason for the landowner to believe that their right to
receive additional TDR against the area of the amenity constructed
or developed over the land surrendered shall be curtailed or scaled
down in any sense.
33. The High Court in Apurva Natvar Parikh & Co. Pvt. Ltd. v.
12
State of Maharashtra and Ors. , observed that the right to
receive additional TDR against the construction or development of
amenity on land surrendered by the landowner under Section

12
2018 SCC OnLine Bom 6436.
34

126(1)(b) of the MRTP Act accrues on the date of surrender of the
land.
34. In Municipal Corpn., Greater Mumbai v. Natvar Parikh &
13
Co. (P) Ltd.
, , the parties before this Court did not dispute about
the applicability of the judgment in Godrej & Boyce I (supra) but
a plea was taken by the Corporation that the said judgment should
apply prospectively and not retrospectively. In such
circumstances, this Court held that that matter should have been
agitated when Godrej & Boyce I (supra) was being heard and the
entire issue could not be re-agitated. However, the appropriate
Court shall take a decision in the matter when a plea is taken
seeking to take benefit of the judgment in Godrej & Boyce I
(supra).
35. This Court in Godrej & Boyce Mfg. Co. Ltd. v. Municipal
14
Corpn., Greater Mumbai , (hereinafter referred to as ‘ Godrej &
Boyce II ’ ) dealt with grant of additional TDR against the amenity
of recreation ground which was constructed by the appellant
therein on the land surrendered by it to the Corporation under
Section 126(1)(b) of the MRTP Act. This Court was faced with the

13
(2024) 14 SCC 644.
14
(2023) 15 SCC 110.
35

question as to whether there was abandonment of the claim for
additional TDR against construction / development of amenity by
the landowner and whether delay and laches could defeat its
claims. The claim of the landowner therein for additional TDR
against amenity was rejected considering ‘prevailing policy’. This
Court found that the rights of the landowners to additional TDR
against the amenities had been curtailed by the Corporation to
different extents for different amenities under its circular dated
09.04.1996 (the prevailing policy) which had formed the subject
matter of the judgment of this Court in Godrej & Boyce I (supra)
which was delivered in 2009. From 1996 to 2009, the right to claim
additional TDR was in suspended animation and once the cloud
over the landowners’ rights was cleared, the claim was duly made
and there was no abandonment of rights. However, on facts, the
Court found that the landowner therein had not developed any
amenity as required under the law and was therefore not entitled
to additional amenity TDR. With the said finding, this Court
dismissed the appeal filed by the landowner in the said case.
Relevant paragraphs of the judgment in Godrej & Boyce II (supra)
are quoted herein for reference:
“ 35. In fact, the above Circular dated 9-4-1996, gave rise to
a dispute between Appellant 1 herein and a few others on
36

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 & Boyce Mfg.
Co. Ltd. [Godrej & Boyce Mfg. Co. Ltd. v. State of
Maharashtra, (2009) 5 SCC 24 : (2009) 2 SCC (Civ) 368] The
said decision was rendered on 6-2-2009 [Godrej & Boyce
Mfg. Co. Ltd. v. State of Maharashtra, (2009) 5 SCC 24 :
(2009) 2 SCC (Civ) 368] .
36. Therefore, taking advantage of the said decision,
Appellant 2 applied once again for the grant of additional
TDR, on 3-11-2009. The same was rejected once again by a
communication dated 17-8-2010. 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.
37. The law of abandonment is based upon the maxim invito
beneficium non datur. It means that the law confers upon a
man no rights or benefits which he does not desire. In P.
Dasa Muni Reddy v. P. Appa Rao [P. Dasa Muni Reddy v. P.
Appa Rao, (1974) 2 SCC 725] , this Court held that
“[a]bandonment 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 para 13 of the said decision [P. Dasa Muni
Reddy v. P. Appa Rao, (1974) 2 SCC 725] , this Court put
the law pithily in the following words : (SCC p. 729)
“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.”
…
39. 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 1 herein, though in respect of another
property. If the said decision in the first round had gone
against Appellant 1 herein, the rejection of the claim of the
37

appellants for additional TDR on the basis of “prevailing
policy” would have become final and unquestionable.
38. Irrespective of whether the respondents concede or not,
the Circular dated 9-4-1996 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 & Boyce Mfg. Co.
Ltd. [Godrej & Boyce Mfg. Co. Ltd. v. State of Maharashtra,
(2009) 5 SCC 24 : (2009) 2 SCC (Civ) 368] was delivered on
6-2-2009. As we have stated earlier, the decision in Godrej
& Boyce Mfg. Co. Ltd. [Godrej & Boyce Mfg. Co. Ltd. v. State
of Maharashtra, (2009) 5 SCC 24 : (2009) 2 SCC (Civ) 368]
was in the case of the very Appellant 1 herein though in
respect of some other property.
40. 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, tantamounts to abandonment, is clearly
unjustified and unacceptable. Therefore, the finding
recorded by the High Court on Question 1 is not in tune with
the law or the facts of the present case and hence Question
1 has to be answered in favour of the appellants herein.”
36. In Godrej & Boyce II (supra), this Court further held that
when parties were ad idem that the consideration for acquisition
of reserved land is not to be paid in the form of cash, but in the
form of kind, i.e., by grant of FSI or TDR for the area of land
surrendered and additional FSI and TDR against the development
or construction of amenity on the surrendered land, the Court
must find out (i) whether the parties had agreed to give / take FSI
or TDR in lieu of compensation, in terms of Section 126(1)(b); and
38

(ii) whether there was a valid claim for grant of additional FSI or
TDR towards the development or construction of the amenity on
the land so surrendered by the landowner at his own cost.
37.
Most recently, the claim for additional TDR against
construction of amenity on land surrendered by the landowner
under Section 126(1)(b) of the MRTP Act was the subject matter of
dispute before this Court in Kukreja Construction (supra). This
round of litigation was initiated after the judgment of this Court in
Godrej and Boyce I (supra). Several writ petitions were filed before
the High Court by landowners, claiming grant of 100% additional
TDR in respect of the amenity developed on the land surrendered
by them under Section 126(1)(b) of the MRTP Act. Most of the writ
petitions were dismissed on the ground of delay and laches, while
in some cases the High Court allowed the claim. All those
judgments of the High Court were challenged, either by the
Corporation or by the respective landowners in a batch of special
leave petitions which were disposed of by this Court in a common
judgment. By this time, the DCR, 1991, specifically Regulation 34
thereof, was amended by the State, issuing a notification dated
16.11.2016, which amended the mechanism for grant of additional
TDR against construction or development of amenity. The
39

Corporation endeavoured to prove that the said amendment could
be made operable retrospectively and sought to apply it to the case
of the landowners in that case, it was also contended that the
Godrej & Boyce I
judgment in (supra) was in fact per incuriam ,
since it did not notice Regulations 33 of the DCR, 1991. Ultimately,
this Court analysed various judgments and held that delay and
laches could never be the ground to defeat the claim for additional
TDR against construction of an amenity by the landowner on the
land surrendered. The Corporation was directed to consider the
case of the landowners in light of the judgment of this Court in
Godrej & Boyce I (supra) and that it shall release the balance of
FSI / TDR within a period of three months from the date of the
judgment. Relevant portion of the said judgment is quoted herein
for reference:
“ 69. In all these cases, we find that the writ
petitioners/appellants herein had surrendered the reserved
land and had also been granted 25% TDR and a
representation for additional TDR was made after the
judgment of this Court in Godrej & Boyce (1) [Godrej &
Boyce Mfg. Co. Ltd. v. State of Maharashtra, (2009) 5 SCC
24 : (2009) 2 SCC (Civ) 368] and in some cases, the
representation was made early but in other cases, the
representations were made after some time. It is also noted
in Civil Appeal No. 1748 of 2015, in Natvar
Parikh [Municipal Corpn. of Greater Mumbai v. Natvar
Parikh & Co. (P) Ltd., (2024) 14 SCC 644] , this Court had
stated that the decision in Godrej & Boyce (1) [Godrej &
Boyce Mfg. Co. Ltd. v. State of Maharashtra, (2009) 5 SCC
40

24 : (2009) 2 SCC (Civ) 368] could not be revisited inasmuch
as the Mumbai Municipal Corporation could not seek to
reargue the matter. Also, the facts in each case on the
questions of delay was to be considered as observed by this
Court. The issue of abandonment of claim has also been
considered and negatived in the judgment of this Court
in Godrej & Boyce (2) [Godrej & Boyce Mfg. Co.
Ltd. v. Municipal Corpn. of Greater Mumbai, (2023) 15 SCC
110].
70. We have referred to the decisions of this Court where
the question of delay and laches would not arise in matters
such as the present cases. When relief in the nature of
compensation is sought, as in the instant case, once
the compensation is determined in the form of
FSI/TDR, the same is payable even in the absence of
there being any representation or request being made.
In fact, a duty is cast on the State to pay
compensation to the land losers as otherwise there
would be a breach of Article 300-A of the Constitution.
As rightly contended by the learned Senior Counsel for the
writ petitioners/appellants herein, the respondent
Mumbai Municipal Corporation has not established
that owing to a short delay even if it has occurred in
any of these cases owing to uncertainty in law, the
Corporation has been prejudiced by the same or that
the third-party rights had been created which could
not be disturbed owing to delay or laches. The
calculation of period of delay in the table submitted by the
learned Senior Counsel for the Mumbai Municipal
Corporation is not acceptable in view of our discussion
above. The decisions referred to by us above would
clearly indicate that neither the doctrine of delay and
laches nor the principle of abandonment of claim or
waiver would apply in these cases. Rather the delay
has occurred on the part of the Mumbai Municipal
Corporation in complying with the Regulations
insofar as these appellants are concerned.
71. In view of the aforesaid discussion, we hold that the
Bombay High Court was not right in dismissing [Apurva
Natvar Parikh & Co. (P) Ltd. v. State of Maharashtra, 2018
,
SCC OnLine Bom 6436] [Starwing Developers (P)
Ltd. v. State of Maharashtra, 2019 SCC OnLine Bom
41

,
13411] [Arvind Kashinath Dadarkar v. Municipal Corpn.,
Greater Mumbai, 2022 SCC OnLine Bom 11962] the writ
petitions on the ground of delay and laches. Hence, those
portions of the impugned order of the High Court are set
aside.
72.
We also do not find any merit in the three appeals filed
by the Mumbai Municipal Corporation. Having regard to the
earlier judgments of this Court, we find that the reasoning
of the High Court on merits in the three impugned decisions
[Apurva Natvar Parikh & Co. (P) Ltd. v. State of
,
Maharashtra, 2018 SCC OnLine Bom 6436] [Starwing
Developers (P) Ltd. v. State of Maharashtra, 2019 SCC
,
OnLine Bom 13411] [Arvind Kashinath
Dadarkar v. Municipal Corpn., Greater Mumbai, 2022 SCC
OnLine Bom 11962] discussed above is just and proper
which would not call for any interference by this Court.
73. Consequently, the civil appeals filed by the writ
petitioners/appellants herein are allowed as under:
73.1. Those portions of the impugned order dated 18-12-
2018 [Apurva Natvar Parikh & Co. (P) Ltd. v. State of
Maharashtra, 2018 SCC OnLine Bom 6436] by which the
writ petitions were dismissed on the ground of delay and
laches are set aside and the respondent Mumbai Municipal
Corporation is directed to consider the case of those writ
petitioners/appellants herein in light of the judgments of
this Court in Godrej & Boyce (1) [Godrej & Boyce Mfg. Co.
Ltd. v. State of Maharashtra, (2009) 5 SCC 24 : (2009) 2
SCC (Civ) 368] and release the balance FSI/TDR to the
appellants.
73.2. However, in the case of the appellant Kukreja
Construction Company and others, the Mumbai Municipal
Corporation is directed to consider the nature of the
amenities constructed and thereafter to consider their case
for additional FSI/TDR.
73.3. The said exercise shall be carried out as
expeditiously as possible and within a period of three
months from today.
74. The civil appeals filed by the Mumbai Municipal
Corporation are dismissed and the cases of the respondents
in those civil appeals shall be considered in terms of the
42

judgments of this Court in Godrej & Boyce (1) [Godrej &
Boyce Mfg. Co. Ltd. v. State of Maharashtra, (2009) 5 SCC
24 : (2009) 2 SCC (Civ) 368] and the balance FSI/TDR shall
be released to the respondents therein within a period of
three months from today. ”
(Emphasis supplied)
Application to the facts of the instant appeal
38. From a reading of the previous section of this judgment, it is
quite apparent that the Corporation has raised and re-raised
similar contentions before this Court which have been negatived
by this Court more than once. Goes without saying that any such
contention raised in the instant appeal must also meet the same
fate. However, the facts of this case require examination in
isolation to test their applicability.
Waiver of rights
39. There is no dispute between the parties about the fact that
the subject land was surrendered to the Corporation by the
Landowner way back in 2002, after which the name of the
Corporation reflects in the revenue records as owner. In lieu of
such surrender of land, there is no dispute that the compensation
of TDR against the area of land surrendered has already been
credited to the Landowner in the form of DRCs. Further, the
Superintendent of Gardens of the Corporation has granted a
43

completion certificate to the Landowner for the development of a
garden as per approved plans. The dispute, therefore, is on a
narrow canvas, it pertains to the compensation in the form of
additional TDR against the construction or development of the
amenity of ‘garden’.
40. The sum and substance of the argument sought to be
advanced by the Corporation in the instant appeal is that the
Landowner having agreed, by means of the LOI, the Undertaking
as well as the Maintenance Agreement way back in 2002, cannot
now turn around after a significant delay of more than 17 years
from the date of handover of the garden to the Corporation, to
stake their claim for additional amenity TDR.
41. In this context, it is pertinent to mention that this is a case
relating to acquisition of land since the FSI or TDR against the area
of land surrendered as well as additional FSI or TDR against the
development or construction of amenity on the surrendered land
by the landowner at his own cost, is stated to be in lieu of other
means of compensation as described in Section 126(1) of the MRTP
Act. T he right under Article 300A of the Constitution of India,
therefore, squarely attract, which albeit is no longer a fundamental
right; it is a sacrosanct Constitutional right. Article 300A in plain
44

terms provides that ‘ No person shall be deprived of his property
save by authority of law ’. This Court has observed that the said
right is not only a legal right under the Constitution of India, but
it is also a human right and therefore, statutes which are
15
expropriatory must be strictly constructed. It goes without saying
that while the State is vested with the sovereign power of ‘eminent
domain’, it must be juxtaposed against the public interest sought
to be achieved and it should not place an unfair burden on the

private rights which are sought to be curtailed.
42. Furthermore, this Court in Kolkata Municipal Corpn. v.
16
Bimal Kumar Shah , has laid down seven sub-rights which are
encapsulated within Article 300A of the Constitution of India,
which also includes the right to fair compensation, in the following
manner:
“ 29. The constitutional discourse on compulsory
acquisitions, has hitherto, rooted itself within the “power of
eminent domain”. Even within that articulation, the twin
conditions of the acquisition being for a public purpose and
subjecting the divestiture to the payment of compensation in
lieu of acquisition were mandated [State of
Bihar v. Kameshwar Singh, (1952) 1 SCC 528] . Although
not explicitly contained in Article 300-A, these twin
requirements have been read in and inferred as necessary
conditions for compulsory deprivation to afford protection to

15
See: Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. , (2007) 8
SCC 705.
16
(2024) 10 SCC 533.
45

the individuals who are being divested of property
[Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai,
(2005) 7 SCC 627; K.T. Plantation (P) Ltd. v. State of
Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] . A
post-colonial reading of the Constitution cannot limit itself to
these components alone. The binary reading of the
constitutional right to property must give way to more
meaningful renditions, where the larger right to property is
seen as comprising intersecting sub-rights, each with a
distinct character but interconnected to constitute the whole.
These sub-rights weave themselves into each other, and as
a consequence, State action or the legislation that results in
the deprivation of private property must be measured
against this constitutional net as a whole, and not just one
or many of its strands.
30. What then are these sub-rights or strands of this
swadeshi constitutional fabric constituting the right to
property? Seven such sub-rights can be identified, albeit
non-exhaustive. These are:
(i) The duty of the State to inform the person that it intends
to acquire his property — the right to notice,
(ii) The duty of the State to hear objections to the acquisition
— the right to be heard,
(iii) The duty of the State to inform the person of its decision
to acquire — the right to a reasoned decision,
(vi) The duty of the State to demonstrate that the acquisition
is for public purpose — the duty to acquire only for public
purpose,
(v) The duty of the State to restitute and rehabilitate — the
right of restitution or fair compensation,
(vi) The duty of the State to conduct the process of
acquisition efficiently and within prescribed timelines of the
proceedings — the right to an efficient and expeditious
process, and
(vii) The final conclusion of the proceedings leading to
vesting — the right of conclusion. ”
46

43. The plea that the Landowner had surrendered its right to
claim additional amenity TDR under Section 126(1)(b) of the MRTP
Act against the construction or development of amenity cannot be
countenanced or sustained. The said provision of statute is a
manifestation of Article 300A of the Constitution of India and once
fair compensation as against surrender of land is prescribed under
statute, in terms of Section 126(1)(b) of the MRTP Act when read
with the relevant regulations, no deprivation of land without strict
compliance thereof can be permissible. In the facts of Godrej and
Boyce I (supra), this Court had specifically found in paragraph 63
of that judgment that once the compensation against acquisition
of land under Section 126(1)(b) of the MRTP Act had been laid
down, no further negotiations, especially in order to derogate from
the landowner’s rights can be permissible and no further
conditions may have been imposed by the Corporation which
derogate from the provisions of the statute. The plea that the
landowners had specifically accepted not to claim additional
amenity TDR against the construction or development of amenity
was recorded and rejected by this Court giving specific reasons.
We see no reason to take a different view in this matter when the
same contention was rejected by this Court in Godrej & Boyce I .
47

44. In the facts of Godrej & Boyce I (supra), this Court was
dealing with the question as to whether a circular which at best
could be considered as executive instructions, may override the
statutory right of compensation flowing from Section 126(1)(b) of
the MRTP Act. The facts of this case are worse placed, in that the
Corporation contends that an agreement between the authority /
executive and the landowner may override the statutory provisions
which contemplate the grant of compensation in a certain manner.
We fail to understand how the Corporation can get out of the
crutches of the findings of this Court in the said judgment or the
judgment in Kukreja Construction (supra) where this Court, in
paragraph 70 has negatived the argument of waiver and
abandonment of claim raised by the Corporation therein. Similar
is the view taken by this Court in Yeshwant Jagannath Vaity
(supra) which also stares at the face of the argument of the
Corporation in respect of waiver and abandonment of claims.
45. On perusal of record, it does appear that the question of
waiver, estoppel and acquiescence was raised by the Corporation
in its counter affidavit, so therefore the finding of the High Court
to the contrary is incorrect. In any case, the learned senior counsel
appearing for the Corporation has placed reliance on the
48

judgments of Lachoo Mal (supra), Sita Ram Gupta (supra) and
O.P. Swarnakar (supra) to buttress his argument in respect of
waiver. He submits that a mandatory provision made for the
protection or benefit of a private individual can be waived by the
person as long as there is no public interest involved. Even though
the argument regarding waiver has been specifically rejected by
this Court in Godrej & Boyce I (supra), Godrej & Boyce II (supra)
as well as Yeshwant Jagannath Vaity (supra) there are some
additional reasons why we do not believe that there is any waiver
of rights in the facts and circumstances of the present case.

46. This Court in State of Punjab v. Davinder Pal Singh
17
Bhullar , relied upon various judgments of this Court and
explained the principle of waiver in the following terms:
“ 41. Waiver is an intentional relinquishment of a right. It
involves conscious abandonment of an existing legal right,
advantage, benefit, claim or privilege, which except for such
a waiver, a party could have enjoyed. In fact, it is an
agreement not to assert a right. There can be no waiver
unless the person who is said to have waived, is fully
informed as to his rights and with full knowledge about the
same, he intentionally abandons them. (Vide Dawsons
Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha [(1934-35)
62 IA 100 : AIR 1935 PC 79] , Basheshar Nath v. CIT [AIR
1959 SC 149] , Mademsetty Satyanarayana v. G. Yelloji
Rao [AIR 1965 SC 1405] , Associated Hotels of India
Ltd. v. S.B. Sardar Ranjit Singh [AIR 1968 SC 933]
, Jaswantsingh Mathurasingh v. Ahmedabad Municipal

17
(2011) 14 SCC 770.
49

Corpn. [1992 Supp (1) SCC 5] , Sikkim Subba
Associates v. State of Sikkim [(2001) 5 SCC 629 : AIR 2001
SC 2062] and Krishna Bahadur v. Purna Theatre [(2004) 8
SCC 229 : 2004 SCC (L&S) 1086 : AIR 2004 SC 4282] .)”

47. The element of intent is quite implicit in the principle of
waiver and the same must be deciphered from the facts and
circumstances of each case. In the present case, the subject land
was reserved as a garden by the unilateral act of the State way
back in 1994 under the DCR, 1991. As discussed above, the
reservation itself had a stipulation that the garden on the said land
was to be developed by the Landowner. In such a situation, the
Landowner was left with limited options under the scope of Section
126(1) of the MRTP Act. It could pursue an agreement with the
Corporation for payment of compensation in cash (under Section
126(1)(a)), or it could await land acquisition proceedings under the
relevant law (under Section 126(1)(c)). The Landowner, however,
made its application for grant of TDR under Section 126(1)(b), read
with Regulation 34 & Appendix VII of DCR, 1991 on 06.07.2001.
On a perusal of the said application, we find that at paragraph 17
of the same lies the question and answer submitted thereto by the
Landowner.
“ (17) Whether the reservation is proposed to be built upon
as per the plans approved by the concerned Authority as
50

per sub regulation No. 6 of Appendix VII, if so, details
thereof:
Answer: No. ”
48. In reply thereof, the Corporation sent its letter dated
06.07.2001, the LOI, wherein conditions were laid down for grant
of DRC in lieu of the land in the following manner:
“ This has reference to the application made by you along
with various documents. By direction, I have to inform you
that your request to grant you ‘Development Right
Certificate’ in lieu of the aforesaid land, will be considered
after complying the following requirements :
…
3. That you will develop the said Garden plots as per
Municipal specifications & you will submit a registered
undertaking that you will develop the said Garden as per
the specification laid down by the Corporation and maintain
it for a further period of next 20 years, at your cost, and
will not claim any amenity TDR towards development
of garden. ”
(Emphasis supplied)
49. From a perusal of the LOI it appears that the Corporation
portrayed to the Landowner that an undertaking for the
development of the garden, its maintenance for 20 years and most
importantly, the condition for not claiming additional TDR against
development of the garden is a pre-condition or ‘requirement’ for
the grant of DRC / TDR in respect of the land surrendered.
Certainly, pursuant to the LOI, there is an undertaking which was
submitted by the Landowner in the same terms and a Maintenance
51

Agreement which also provides the condition of not claiming
additional amenity TDR, but this does not appear to be a case of
waiver. The statutory right of the Landowner under Section
126(1)(b) being two-fold as discussed above, the Corporation could
not have conjured a pre-condition for the Landowner to abjure part
of the compensation in order to receive the other part. It is trite law
18
that what cannot be done directly, also cannot be done indirectly.
The proposition of law espoused in the judgments relied upon by
the learned senior counsel for the Corporation, certainly cannot be
called into question, but the facts and circumstances of this case
do not indicate voluntary and intentional waiver of rights by the
Landowner.
50. This Court in Kukreja Construction (supra) has placed
reliance on its earlier judgment in Kazi Moinuddin Kazi
Bashiroddin v. Maharashtra Tourism Development
19
Corporation , where this Court held that in matters relating to
payment of amount of compensation to land losers, if at all two
views are possible, the view that advances the cause of justice is

18
Nazir Ahmad v. King-Emperor , 1936 SCC OnLine PC 41.
19
(2024) 19 SCC 490.
52

always to be preferred rather than the other view, which may draw
its strength only from technicalities.
51. The LOI, Undertaking as well as the Maintenance Agreement
cannot be divorced from the context in which they were entered
into. There is invariably an inequal bargaining power between the
authority, i.e. the Corporation on one hand and the landowner on
the other. We are aware that the Landowner in the instant case is
a corporation, a developer, but that would make no difference.
Once the land has been demarcated for a public purpose under
the MRTP Act, there is inherent imbalance of bargaining power
between the authority carrying out the acquisition and the
landowner and Courts must be wary of any possible economic
duress which might affect parties’ decision-making. In such
circumstances, the agreement between the Landowner and the
Corporation where the Landowner has purportedly ‘given up’
statutory rights which accrue in its favour, pales into
insignificance, especially when giving up of such rights has been
projected as a pre-condition at the very first step, as discussed
above. Once the statute read with the regulations framed
thereunder provides for compensation to be granted in a certain
manner, there was no occasion for the officials of the Corporation
53

to enter into further negotiations with the Landowner to come up
with a new mechanism for payment of compensation in derogation
of the same. There was no occasion for the authorities to contract
out of the statutory conditions for payment of compensation. Such
an act cannot be countenanced and sustained in law, and it
therefore deserves interference by this Court. For the aforestated
reasons, the contention of the Corporation that the Landowner
cannot claim anything beyond the scope of contract between the
parties and the reliance placed on Rajasthan State Industrial
Development & Investment Corpn. (supra) is not acceptable.

52. The learned senior counsel appearing for the Corporation
would contend that the Landowner had enjoyed the benefit of
maintenance of the garden on the subject land from 2002 to 2016
in lieu of grant of additional TDR against the construction of
amenity on the surrendered land as per the LOI, the Undertaking
and the Maintenance Agreement. Somewhat along the same lines,
the High Court in the impugned order has found that the
Landowner had agreed to not claim additional amenity TDR since
they were permitted to maintain the garden in question and during
such period, their claim for additional amenity TDR remained
suspended or deferred. As such, the High Court reasoned that
54

upon withdrawal of the ‘privilege’ of maintenance of the garden,
which is the benefit, the condition of disclaimer of additional
amenity TDR could not survive.
53.
The gist of what is being claimed by the learned senior
counsel appearing for the Corporation (which has also found
favour with the High Court) is that the Landowner had, by
agreement, substituted its right to receiving additional amenity
TDR with the right to maintain the garden for a period of twenty
years.
54. This contention may not detain us for too long and it must be
rejected at the threshold. In Pt. Chet Ram Vashist v. Municipal
20
Corpn. of Delhi , this Court observed as thus:
“ 6. Reserving any site for any street, open space, park,
school etc. in a layout plan is normally a public purpose as
it is inherent in such reservation that it shall be used by the
public in general. The effect of such reservation is that
the owner ceases to be a legal owner of the land in
dispute and he holds the land for the benefit of the
society or the public in general. It may result in
creating an obligation in nature of trust and may
preclude the owner from transferring or selling his
interest in it. It may be true as held by the High Court
that the interest which is left in the owner is a
residuary interest which may be nothing more than a
right to hold this land in trust for the specific purpose
specified by the coloniser in the sanctioned layout
plan. But the question is, does it entitle the
Corporation to claim that the land so specified should

20
(1995) 1 SCC 47.
55

be transferred to the authority free of cost. That is not
made out from any provision in the Act or on any
principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of
public interest to manage it in the interest of the society in
general. But the right to manage as a local body is not the
same thing as to claim transfer of the property to itself. The
effect of transfer of the property is that the transferor ceases
to be owner of it and the ownership stands transferred to
the person in whose favour it is transferred. The resolution
of the Committee to transfer land in the colony for park and
school was an order for transfer without there being any
sanction for the same in law. ”
(Emphasis supplied)

55. It is to observe in this regard that it was not the Corporation’s
case before the High Court that the maintenance of the garden was
inextricably linked with the grant of additional TDR against the
construction of amenity on the land surrendered by the
Landowner. In fact, the Corporation in its counter affidavit to the
writ petition filed before the High Court, had pleaded as follows:
“ 4. I say that the entitlement of TDR and giving the
garden on adoption basis are two separate issues
forming parts of two different transactions one
having nothing to do with others. I say that at the
request of the Petitioner the garden was given on
adoption basis after erstwhile owner of properties /
garden handed over possession of the same to
Corporation and transferred title of the property
reserved for garden in favour of the Respondent by
transferring the property cards etc. in the name of the
Corporation.
5. I say that the Agreement for adoption of garden with the
Petitioner was terminated by MCGM on 14.03.2016. The
termination is accepted by the Petitioner without demurrer
56

and therefore they immediately handed over the possession
of the garden to the Respondent. Thus, the Petitioner cannot
go back and seek the benefits in respect of garden. The
Petition is maintainable on the grounds of principle of
waiver and doctrine of estoppel. ”
(Emphasis supplied)
56. In this context, we are of the opinion that the High Court has
erred in observing that the maintenance agreement was in lieu of
the statutory right of the Landowner to additional amenity TDR
against development of amenity on the land surrendered. The
maintenance of a garden on adoption basis has nothing to do with
the statutory rights of the Landowner for compensation accruing
under Section 126(1)(b) of the MRTP Act. Having specifically
admitted so in the counter affidavit before the High Court, it does
not lie in the mouth of the Corporation to claim the opposite before
this Court. The issue of grant of maintenance rights on adoption
basis to the Landowner and its subsequent withdrawal cannot be
made the subject matter of the instant dispute since the agreement
for maintenance can be said to be an alternative manner of
compensation which has been conjured by the Corporation in
complete and abject ignorance of the statutory provisions.
57. It is for the above-mentioned reasons, placing reliance on the
judgments as cited above, we reject the contention of the
57

Corporation regarding waiver of rights by the Landowner as well
as the argument about substitution of the right to receive fair
compensation under Section 126(1)(b) with the right to
maintenance of the garden on an adoption basis.
Non-applicability of DCR, 1991 and delay and laches
58. It is further contended by Mr. Mehta appearing for the
Corporation that the DCPR 2034 had come into force by the time
the Appellant had sought benefit of additional amenity TDR for the
construction of amenity on the surrendered land, i.e., on
04.04.2019. He has placed reliance on T. Vijayalakshmi (supra)
in this regard. In this regard, it will suffice to observe that the said
judgment has no applicability in the facts and circumstances of
the instant case. The right to fair compensation against acquisition
of land crystalized on the day when the land was surrendered by
the Landowner as observed by the High Court in its judgment in
Apurva Natvar Parikh (supra) which we believe is the right view
in the matter.

59. Now, therefore, the next contention of the Corporation is that
in case the said right accrued to the Landowner upon surrender of
land in 2002, it has continued to maintain the garden in terms of
the Maintenance Agreement without any claim or demur, and has
58

made a claim for additional amenity TDR after a massive delay of
17 years which cannot be condoned. It is further claimed that the
Maintenance Agreement itself was terminated in June, 2016, even
thereafter a period of 3 years elapsed prior to the Landowner filing
its writ petition in 2019.
60. In this regard, this Court in Godrej & Boyce II (supra) has
considered the question of delay and laches and abandonment of
claim and has reached the conclusion that during 1996 to 2009,
the law in respect of grant of additional amenity TDR against
construction or development of amenity was unclear, until the
judgment in Godrej & Boyce I (supra) was pronounced by this
Court. Although the reason for denial of additional amenity TDR
to the Landowner in the instant appeal does not relate to the
Circular which was under challenge in Godrej & Boyce I (supra),
the uncertainty in law was clarified by this Court in the said
judgment, that the landowners are entitled to 100% of the area of
the construction or development of amenity on the land
surrendered. Noticing the said judgment in Godrej & Boyce II
(supra), this Court in Kukreja Construction (supra) has rejected
the contention of the Corporation that claim for additional amenity
TDR against construction or development of amenity on the land
59

surrendered by the owner can be hit by delay and laches. The
Court found that when relief in the nature of compensation is
sought, and it is determined in the nature of FSI / TDR under the
statute, it is payable even without a representation being made. It
was observed therein that the Corporation has not been able to
show that any third-party rights had been created which would be
disturbed by delay and laches.
61. The judgment in Kukreja Construction (supra) has been
followed by this Court in the judgment of Ultra-Tech Cement Ltd.
21
v. Mast Ram , to hold that compensation against acquisition of
land is due and payable by the State upon acquisition being made
and it should not delay such payment. Relevant portion of the said
judgment is quoted herein for reference:
“ 50. That time is of the essence in determination and
payment of compensation is also evident from this Court's
judgment in Kukreja Construction Co. v. State of
Maharashtra [Kukreja Construction Co. v. State of
Maharashtra, (2024) 14 SCC 594 : 2024 SCC OnLine SC
2547] wherein it has been held that once the compensation
has been determined, the same is payable immediately
without any requirement of a representation or request by
the landowners and a duty is cast on the State to pay such
compensation to the land losers, otherwise there would be
a breach of Article 300-A of the Constitution.
51. In the present case, the Government of Himachal
Pradesh as a welfare State ought to have proactively

21
(2025) 1 SCC 798; Also see: Paragraph 69 of Urban Improvement Trust v. Vidhya Devi ,
2024 SCC OnLine SC 3725.
60

intervened in the matter with a view to ensure that the
requisite amount towards compensation is paid at the
earliest. The State cannot abdicate its constitutional and
statutory responsibility of payment of compensation by
arguing that its role was limited to initiating acquisition
proceedings under the MoU signed between the appellant,
JAL and itself. We find that the delay in the payment of
compensation to the landowners after taking away
ownership of the subject land from them is in contravention
to the spirit of the constitutional scheme of Article 300-A and
the idea of a welfare State.
52. Acquisition of land for public purpose is undertaken
under the power of eminent domain of the Government much
against the wishes of the owners of the land which gets
acquired. When such a power is exercised, it is coupled with
a bounden duty and obligation on the part of the
government body to ensure that the owners whose lands
get acquired are paid compensation/awarded amount as
declared by the statutory award at the earliest.”
62. In matters which relate to payment of fair compensation
against acquisition of land, the State is obligated to fairly
compensate the owner of the land since it is a curtailment of his
legal right to enjoyment of such land. It is an intrinsic aspect of
Article 300A. Upon such acquisition, a duty is cast on the State to
make good the compensation as determined under the relevant
statute, in this case, MRTP Act and the regulations framed
thereunder. In such circumstances, we see no reason to differ from
the view taken by this Court in Kukreja Construction (supra) in
respect of effect of delay and laches in the claim for conferment of
61

additional TDR against construction of amenity under Section
126(1)(b) of the MRTP Act.
63. In support of its argument on delay and laches, the
Corporation has placed reliance on the judgments of this Court in
Shri Vallabh Glass Works Ltd. (supra) and Century Textiles &
Industries Ltd. (supra). In the former, this Court has observed
that denial of relief in terms of delay and laches wholly depends on
the facts and circumstances of each case.
64. The reliance on the latter, i.e. Century Textiles &
Industries Ltd. (supra) has been placed by the Corporation to
contend that delay and laches are non-condonable especially while
filing writ petition under land acquisition matters. Relevant portion
of the said judgment is quoted herein for reference:
“ 76. Reference may be made to the following judgments
wherein delay and laches being non-condonable while filing
petition, especially under land acquisition matters, has
been elaborately dealt with and has been the consistent
view of this Court that such belated petitions are liable to be
dismissed.
78. Similarly, in Hari Singh v. State of U.P. [Hari
Singh v. State of U.P., (1984) 2 SCC 624] , it was observed
that : (SCC p. 626, para 4)
“4. At the outset we are of the view that the writ
petition filed in July 1982 questioning the
notification issued in January 1980 after a delay
of nearly two-and-a-half years is liable to be
dismissed on the ground of laches only. It is no
62

doubt true that the appellants have pleaded that
they did not know anything about the
notifications which had been published in the
Gazette till they came to know of the notices
issued under Section 9(3) of the Act but they have
not pleaded that there was no publication in the
locality of the public notice of the substance of the
notification as required by Section 4(1) of the Act.
It should be presumed that official acts would
have been performed duly as required by law. It
is significant that a large number of persons who
own the remaining plots have not challenged the
acquisition proceedings. The only other petition in
which these proceedings are challenged is Civil
Misc. Writ Petition No. 11476 of 1982 on the file of
the High Court filed subsequently by Amar Singh
and four others. Moreover in a small place like
Kheragarh where these plots are situate, the
acquisition of these lands would be the talk of the
town in a short while and it is difficult to believe
that the appellants who are residents of that place
would not have known till July 1982 that the
impugned notification had been published in
1980. Any interference in this case filed after two-
and-a-half years with the acquisition proceedings
is likely to cause serious public prejudice. This
appeal should, therefore, fail on the ground of
delay alone.”
82. Therefore, the writ petition ought to have been
dismissed on this ground of delay and laches alone. We find
no merit in the conduct of Respondent 1 where it
deliberately chose to sit still on its rights for a long period of
fifty-one years. Even after such a belated delay and
sending a notice to the appellant in 2006, Respondent 1
again failed to exhibit any diligence and chose not to file a
suit within the period of limitation under the 1888 Act.
Instead, Respondent 1 has shown utmost craftiness and
lack of bona fides in preferring the writ petition before the
High Court in 2016 as it is clearly a route adopted to subvert
the long delay of sixty-one years, which we do not find
condonable, given the conduct of Respondent 1 throughout.”
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65. The said judgment is entirely distinguishable in the facts and
circumstances of the present case. Distinction must be drawn
between delay and laches caused in challenging the process of land
acquisition itself on one hand and delay and laches caused in
seeking fair statutory compensation on the other. In the facts of
Century Textiles & Industries Ltd. (supra), the challenge made
by the writ petitioner before the High Court was to the acquisition
itself and it claimed ownership over the property acquired. In
making such challenge, there was unsurmountable delay of 61
years, which this Court held to be non-condonable. Certainly, no
disagreement can be made with the proposition of law laid down
therein, but it does not apply to the present facts where fair
compensation in respect of land acquisition is sought by the
Landowner.
66. In these circumstances, the judgment of Kukreja
Construction (supra) strictly applies and seals the contention of
the Corporation in respect of delay and laches. So also, the High
Court is absolutely correct in relying upon the judgment of this
Court in Sukh Dutt Ratra (supra) and holding that the plea of
delay may not succeed where there is a continuing cause of action
especially in the facts of the instant case. It goes without saying
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that questions relating to delay in approaching Courts for relief
heavily depend on facts and circumstances of each case and in the
present set of facts, we are of the opinion that delay and laches
cannot defeat that claim of the Landowner to fair compensation
under Section 126(1) of the MRTP Act.
Nature of the amenity
67. Another argument raised by the Corporation in the instant
appeal is that the garden on the subject land is not an ‘amenity’
within the meaning as prescribed under Section 2(2) of the MRTP
Act and Regulation 2(7) of the DCR, 1991. It is contended that the
garden in question was commercially exploited for personal use by
the Landowner and it was not used for the benefit of the
Corporation, so therefore it cannot be considered an ‘amenity’. It
is further contended that the garden in question was constructed
/ developed prior to handing over the subject land to the
Corporation and in such circumstances, there can be no claim
made for additional TDR in respect of the area of amenity
constructed or developed on the land surrendered.
68. This argument of the Corporation also deserves to be rejected
for twofold reasons. Firstly, this was never the contention raised
by the Corporation and was not the reasoning for rejection
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mentioned by the Corporation in the Rejection Order dated
05.11.2019, nor was this stand taken by the Corporation in its
counter affidavit filed before the High Court. At the fag end of the
litigation, the Corporation is enjoined from raising a claim which
it has not raised throughout. Secondly, such a contention is also
not borne out from the record. It is the Corporation itself which
has certified the development of the garden on the subject land by
the Landowner. From the very inception when the subject land was
reserved as a garden vide the Notification dated 04.03.1994, there
is a stipulation that the respective landowners must develop the
garden proposed on the sites and then hand over the property to
the Corporation. In the LOI dated 13.12.2001, the Corporation has
stated that grant of DRC against the land itself can be considered
only upon complying requirements which included the
development of a garden as per specifications laid down by the
Corporation.
69. It is apparent that the development of the amenity by the
Landowner was made a pre-requisite by the Corporation itself for
grant of TDR against the land and it therefore cannot now claim
that the completion of development of garden prior to surrender of
the land would take it outside the fold of compensation for
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construction / development of amenity on the surrendered land
within the meaning of Section 126(1)(b) of the MRTP Act. Further,
such an interpretation of Section 126(1)(b) of the MRTP Act would
do violence to the statute as well as the DCR, 1991.
70. Before we part, the Corporation has placed heavy reliance on
the proceedings before the Lokayukta and the non-maintenance of
the garden, its private / commercial use by the Landowner. In this
respect, it will suffice to say that recourse and remedy as
permissible under the law may be taken in respect of the
Maintenance Agreement. As we have found above, and as admitted
by the Corporation before the High Court, the maintenance of the
garden is completely independent from the acquisition of the
subject land after development of the garden. It is difficult to accept
the contention of the Corporation that the alleged misuse of the
garden would in any manner affect the statutory right of the
Landowner to receive fair compensation under Section 126(1)(b) of
the MRTP Act.

71. For the aforementioned reasons, we are not inclined to
interfere with the judgment of the High Court, although we have
provided our separate reasons for reaching the said conclusion. As
a result, the instant appeal shall stand dismissed. The Corporation
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shall now comply with the directions issued by the High Court
within a time period of two months. All interlocutory applications
(if any) shall be treated to be disposed of.


…….…..………………………….J.
(J.K. MAHESHWARI)


…….…..………………………….J.
(ATUL S. CHANDURKAR)

NEW DELHI;
TH
MAY 20 2026.
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