1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2557 OF 2007. PETITION NO.2557 OF 2007. PETITION NO.2557 OF 2007. Manohar Shripad Bhat & Anr. : Petitioners versus The Municipal Corporation of City of Pune : Respondents. Mr.Y.S.Jahagirdar, Sr.Advocate, i/by Mr.G.S.Godbole for the petitioners. Mr.R.G.Ketkar for the respondents. CORAM CORAM CORAM : S.B.MHASE & S.S.SHINDE, JJ. : S.B.MHASE & S.S.SHINDE, JJ. : S.B.MHASE & S.S.SHINDE, JJ. DATED DATED DATED : APRIL 15, 2008. : APRIL 15, 2008. : APRIL 15, 2008. ORAL ORAL ORAL JUDGMENT : (PER S.B.MHASE, J.) JUDGMENT : (PER S.B.MHASE, J.) JUDGMENT : (PER S.B.MHASE, J.) 1. Heard. Rule, returnable forthwith. 2. The petitioners are the owners of Survey No.6 (Part), situated at village Bapodi, Pune admeasuring 2 1691.50 sq.mtrs. The said land was belonging to the petitioners. The said land has been acquired by the Pune Municipal Corporation for the purpose of approach road to proposed Dapodi-Bapodi Bridge by Land Acquisition Case No.LA/375-A. The award has been passed by the Land Acquisition Officer on 5.5.1988. The area under acquisition has been shown 1691.50 sq.mtrs. The possession of the said land has been taken from the petitioners on 25.5.1988. However, the petitioners have not taken the amount of the compensation and, instead relying upon Section 126(i)(b) of the Maharashtra Regional and Town Planning Act, the petitioners claimed TDR from the respondents corporation equivalent to 1691.50 sq.mtrs. Thus the petitioners, being given up an amount of Rs.1,08,502 so as to get the TDR. The petitioners claimed TDR to the extent of area equivalent to the area of acquired land. But the respondents/corporation has given the TDR to the extent of 1200 sq.mtrs. The respondents informed the petitioners by letter dated 17.6.2003 that the area of 1691.50 sq.mtrs is the area taken into possession as per the award. But as per the joint measurement plan, the area is 1200 sq.mtrs. and, thus they have granted TDR certificate to the extent of 1200 sq.mtrs on 20.07.2003. Therefore, the petitioners have 3 approached to this Court challenging the said certificate and seeking directions that the respondents/corporation should be directed to give TDR to the extent of 1691.50 sq.mtrs. that means to the extent of land acquired. 3. The learned counsel Mr.Jahagirdar appearing for the petitioners submits that in view of the provisions of Section 126 (i)(b) of the Maharashtra Regional and Town Planning Act, in lieu of the compensation, the petitioners are entitled to claim TDR equivalent to the area acquired, since the TDR is 1:1. 4. So far as this aspect is concerned, Mr.Ketkar, the learned counsel appearing for the corporation, submits that the petitioners are entitled to 1:1 TDR to the extent of acquired land. But Mr.Ketkar submits that on joint measurement of the land, the area of the land is coming to 1200 sq.mtrs. and, therefore, certificate of TDR equivalent to 1200 sq.mtrs has been granted. He further submits that the map, which has been prepared by the land acquisition officer, if perused and measured, shows that it is measured on the basis of the scale provided on the map and the area comes to 1200 sq.mtrs. and, therefore, TDR granted to 4 the extent of 1200 sq.mtrs is justifiable. Alternatively, Mr.Ketkar, has relied upon the order passed by the Government of Maharashtra dated 7.2.2007 and submitted that once the acquisition has been completed and the possession has been taken, the municipal corporation shall not grant the TDR and, therefore, he ultimately submitted that the petition deserves to be dismissed. 5. The acquisition in respect of this land was started long back and the award has been passed on 5.5.1988. The said award shows that the land to the extent of 1691.50 sq.mtrs has been acquired. Not only that the possession receipt dated 25.5.1988 shows that the possession was taken from the owners of the land and has been accepted by the Planning Assistant on behalf of the Special Land Acquisition Officer (16), Pune on 25.5.1988. Thus, it shows that the land acquisition officer has taken possession of 1691.50 sq.mtrs. in 1988 and the said possession has been given to the municipal corporation. The corporation at that time appeared not to have any grievance in respect of the possession and/or that the land is short to 1691.50 sq.mtrs. When the petitioners started to claim TDR under Section 126(i)(b) of the Act, the dispute has been raised by the corporation to 5 the extent that the land is only 1200 sq.mtrs and not 1691.50 sq.mtrs. In fact, this dispute was not opened to the corporation because the acquisition was for 1691.50 sq.mtrs., the possession taken by the land acquisition officer was of 1691.50 sq.mtrs and naturally that much possession has been given to the corporation by the acquisition officer. If after the land has been acquired, there are any encroachment on the land, for that purpose the petitioners are not responsible because after the acquisition is completed and the possession is taken, it is the responsibility of the land acquisition officer and thereafter of the respondents/corporation to preserve the possession of the said land. It was an error on the part of the municipal corporation to say that when the TDR is being claimed by the petitioners, the land is only 1200 sq.mtrs and therefore only to that extent the TDR certificate will be granted. This stance is not permissible to the Pune Municipal Corporation after having taken possession of the property through the land acquisition officer. Apart from that, if the corporation sincerely feels that they have received lessor possession from the land acquisition officer, it is for them to follow the office of the land acquisition officer to recover the possession of remaining land. But for that purpose, they cannot 6 deprive the rights of the citizens like the petitioners which they are entitled to under Section 126 (i)(b) of the Act. In short, the certificate granted by the Pune Municipal Corporation in favour of the petitioners granting TDR of 1200 sq.mtrs. is not proper. The total TDR certificate which should have been granted by the respondents/corporation shall have been for 1691.50 sq.mtrs and, we accordingly hold that the petitioners are entitled for the TDR of 1691.50 sq.mtrs. 6. The alternate arguments is not attractive after having accepted once that the petitioners are entitled for the TDR and the TDR has accordingly granted and same has been consumed by the petitioners, it is not opened for the respondents to say that in view of the acquisition of land and the possession being taken, the TDR cannot be granted to the petitioners because the Government has prohibited to grant such TDR. Thus, they cannot blow hot and cold at one and the same time so as to squeeze the citizens whose property has been compulsorily acquired under the provisions of law. If the law has extended benefits to the persons in view of compulsory acquisition, those benefits should be extended to the citizens and, therefore, we are not impressed upon by 7 the alternative arguments advanced by Mr.Ketkar and we, therefore, reject the same. 7. Therefore, the petition is allowed. We find that already TDR certificate of 1200 sq.mtrs has been granted. We, therefore, direct that further certificate of 491.50 sq.mtrs of TDR shall be granted to the petitioners. The said certificate shall be granted within a period of four weeks from today. Rule is made absolute in the above terms. 8. Mr.Ketkar, the learned counsel appearing for the respondents/corporation, prays that the stay should be granted to this order so as to enable him to approach the Apex Court. Prayer is rejected. [S.S.SHINDE, [S.S.SHINDE, [S.S.SHINDE, J] [S.B.MHASE, J] J] [S.B.MHASE, J] J] [S.B.MHASE, J]