Amenity TDR requires demonstrable development under approved conditions, not merely works required for land surrender.

The connected writ petitions concerned claims for additional amenity FSI/TDR under Section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”), read with Regulations 33 and 34 and Appendix VII of the Development Control Regulations, 1991 (“DCR 1991”).

The petitioners had surrendered land reserved for public purposes—principally DP roads, recreational grounds and playgrounds—and had received, in varying proportions, FSI/TDR for the surrendered land.

They claimed further FSI/TDR for constructing or developing the public amenity at their own cost.

In WP No. 359 of 2010, Indrajit Properties constructed DP roads pursuant to municipal specifications; although the roads were substantially completed before the 17 June 2010 amendment to Regulation 33(1), the completion certificate and formal possession were issued thereafter.

Whether Section 126(1)(b) of the MRTP Act and clause 6 of Appendix VII to Regulation 34 of DCR 1991 confer a statutory entitlement to additional FSI/TDR where the owner develops or constructs an amenity on surrendered land at its own cost and hands it over to the Planning Authority?

Whether preparatory works such as levelling, construction of compound walls and gates, drainage and related works undertaken as conditions for surrendering land and obtaining basic land-component TDR constitute “development or construction of the amenity” under clause 6 of Appendix VII?

Whether the 17 June 2010 amendment to Regulation 33(1), limiting additional FSI/TDR for constructed roads to 25%, applied where the road was substantially completed before the amendment but formally certified or handed over thereafter?

Whether delay, laches, absence of a formal application under clause 6, or alleged abandonment defeated the petitioners’ claims for additional amenity TDR?

Section 125 of the MRTP Act treats land reserved or designated for a public purpose in a development plan as land needed for a public purpose, while Section 126(1)(b) permits acquisition by granting FSI/TDR against surrender of the land and further additional FSI/TDR against development or construction of the amenity at the owner’s cost.

Under Regulation 34 read with Appendix VII of DCR 1991, clause 5 grants basic FSI/TDR equivalent to the gross area of the reserved land surrendered, whereas clause 6 provides further FSI/TDR equivalent to the area of construction/development where the owner develops or constructs the amenity in accordance with the Commissioner’s stipulations and hands it over free of cost; clause 15 prescribes the minimum conditions for issuance of the basic land-component DRC, including levelling, compound wall and gate.

Godrej I held that executive circulars could not restrict the statutory entitlement under clause 6 from the area-equivalent measure prescribed by the Regulations.

Godrej II clarified that works performed merely to secure surrender of land and basic TDR do not amount to development of an amenity under clause 6, and that the claimant must establish actual amenity development on the facts.

The Court also applied the principle under Article 300A of the Constitution that deprivation of property for a public purpose must be accompanied by legally determined compensation.

The Court treated clause 5 and clause 6 of Appendix VII as conferring distinct benefits. Clause 5 compensates the owner for surrender of the land; clause 6 compensates the owner for the additional act of developing or constructing the public amenity.

Consequently, levelling, enclosing the land, providing a gate, drainage and similar works required under the letter of intent or layout conditions were regarded as prerequisites for surrender and basic TDR, not as amenity development under clause 6.

Applying Godrej II, the Court held that an owner must demonstrate an intention to undertake amenity development, ordinarily through a proposal approved by the Corporation, followed by construction or development beyond the minimum surrender requirements and handover of a usable public amenity.

By contrast, WP No. 359 of 2010 succeeded. The Court found that the DP roads had been substantially completed before 17 June 2010 in accordance with Corporation-approved designs and specifications.

The delay in issuing the formal completion certificate and accepting possession was attributable to the Corporation and could not deprive the petitioners of a right that had accrued upon completion of the amenity.

The 2010 amendment therefore did not apply to reduce the entitlement to 25%; the petitioner was entitled to 100% additional FSI/TDR for the constructed road amenity.

MCGM was directed to issue DRCs granting 100% additional FSI/TDR for the constructed DP road, comprising 6,960 sq. m. and 961 sq. m., respectively.

The Court dismissed WP No. 2132 of 2015, holding that the road construction and surrender occurred under the DCR 1967 regime and did not attract the later amenity-TDR provisions.

It also dismissed WP No. 2018 of 2019, holding that the petitioner had undertaken only the minimum preparatory works required for basic land-component TDR and had not developed the recreational-ground or playground amenities under clause 6.

WP No. 1185 of 2017 was likewise dismissed because the DP roads and associated works were completed pursuant to layout conditions for obtaining basic FSI and were not shown to have been undertaken as approved amenity development under clause 6.