( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2401 OF 2008 WRIT PETITION NO.2401 OF 2008 WRIT PETITION NO.2401 OF 2008 1.Girish Shrikrishna Sule 2.Dilip Shrikrishna Sule 3.Yeshwant Shankarlal Thakkar 4.Mukund Shankarlal Thakkar 5.Pravin Shankarlal Thakkar 6.Satish Shankarlal Thakkar 7.Mukesh Shankarlal Thakkar Through their Constituted Attorneys BAB Developers Private Limited, a Company registered under the provisions of the Companies Act, 1956, having its registered office at V.T.Mansion, 14, Perin Nariman Street, Fort, Mumbai 400 001, through its Director Mr.Zarir M.Bhathena.. Petitioners V/s 1. State of Maharashtra Through Addl.Chief Secretary, Urban Development Department, Mantralaya, Mumbai-400 032. 2. The Hon’ble Chief Minister of Maharashtra (Incharge of Urban Development Department). Government of Maharashtra, Mantralaya, Mumbai - 400 032 .. Respondents ( 2 ) Mr.V.A.Thorat, Senior Advocate with Mr.Pankaj Savant, Levi Rubene and Ms.Manisha Virkhare i/by M/s.Vigil Juris for the Petitioners. Mr.D.A.Nalawade, Govt.Pleader for Respondent/State. Mr.A.N.Samant for Applicant in Chamber Summons No.62 of 2009. Mr.Sandeep Salunkhe for Applicant in Chamber Summons No.88 of 2009. .... CORAM : CORAM : CORAM : J.N.PATEL & J.N.PATEL & J.N.PATEL & R.G.KETKAR, JJ. R.G.KETKAR, JJ. R.G.KETKAR, JJ. JUDGMENT RESERVED ON 30TH MARCH, 2009. JUDGMENT RESERVED ON 30TH MARCH, 2009. JUDGMENT RESERVED ON 30TH MARCH, 2009. JUDGMENT PRONOUNCED ON 4TH APRIL, 2009 JUDGMENT PRONOUNCED ON 4TH APRIL, 2009 JUDGMENT PRONOUNCED ON 4TH APRIL, 2009 JUDGMENT: (PER R.G.KETKAR, J.) JUDGMENT: (PER R.G.KETKAR, J.) JUDGMENT: (PER R.G.KETKAR, J.) 1. Heard the learned Counsel for the parties. Rule. By consent, Rule is made returnable forthwith. By this petition under Article 226 of the Constitution of India, the Petitioners have challenged the order dated May 17, 2008 passed by the Deputy Secretary, Urban Development Department, Government of Mharashtra, whereby the request of the Petitioners for grant of Transferable Development Rights (TDR) in lieu of acquisition of Survey No.103(A) (part) admeasuring 60 Acres 38 Gunthas was rejected. The said land was acquired by Central Railway for Kurla Railway Terminus. 2. In addition, the Petitioners also prayed for an ( 3 ) appropriate direction to the Respondents to forthwith issue necessary direction to the concerned authorities to grant TDR in respect of the said land. 3. The Petitioners claim that the Petitioners predecessor in title Shri.Shrikrishna Balawant Sule and Shri.Shankarlal Ambalal Thakker purchased the land admeasuring 95 Acres 1 Guntha which include the said land by Conveyance dated January 28, 1966. There was dispute as regards the ownership of the said land and one Shri.Premji Ratansi Shah and others instituted Suit No.1448 of 1976 in this Court against (1) Union of India (2) General Manager, Central Railway (3) Shrikrishna Balawant Sule and five heirs of Shankarlal Ambalal Thakker for a declaration that the said Shah & Others were the owners of the said land and that the acquisition of the said land was illegal, null and void. 4. The learned Single Judge of this Court dismissed the suit by a judgment and decree dated April 9, 1992. It is claimed by the Petitiones that the Plaintiffs in that suit were held to be not the owners of the said land which was acquired under the provision of the Land Acquisition Act, 1894 (for short "the Act"). The appeal preferred against the judgment and decree of the learned Single Judge being Appeal No.457 of 1992 was dismissed by the Division Bench on January 31, 1994 and eventually the Apex Court dismissed the S.L.P. No.10792 of 1994 on ( 4 ) July 22, 1994. 5. It is alleged by the Petitioners that the said land was acquired under Section 31 (2) of the said Act and the amount of compensation was deposited in this Court and that the said compensation has not been received by the Petitioners till date. The petitioners contend that the concept of TDR was introduced in the Maharashtra Regional and Town Planning Act, 1966 (for short the MRTP Act) w.e.f. March 25, 1991 and this has been also incorporated in the Development Control Regulations for Greater Bombay, 1991 (for short DC Regulations). The Petitioners also rely upon the clarification dated March 8, 1995 issued by the Urban Development Department of the State Government under Regulation 62(3) of the DC Regulations whereby it is clarified that if the possession of the land has been delivered without receiving part or full compensation, then the TDR shall be granted to the owners. 6. The Petitioners further contend that the Acquiring Body viz. the Central Railway under Communication dated December 15, 1998 gave no objection for grant of TDR in favour of the Petitioners. Similarly, under Communication dated July 8, 1999 the Special Land Acquisition Officer No.4, Mumbai Suburban District, Andheri gave NOC for grant of TDR to the Petitioners. The Petitioners further contend that despite repeated ( 5 ) requests made by them for grant of TDRs, since there was no action, they instituted Writ Petition No.2597 of 1999 in this Court. By an order dated December 3, 1999 this Court directed the Municipal Corporation of Greater Mumbai (MCGM) to dispose of the application made by the Petitioners. 7. The Executive Engineer (Development Plan) (E) of the MCGM under Communication dated December 3, 1999 informed the Architects and Project Consultants of the Petitioners that the request for grant of Development Rights Certificate (DRC) in lieu of land acquired for Railway Terminus cannot be considered as the major portion of the land was not reserved for any public purpose in the sanctioned revised Development Plan of N Ward. The said land was earmarked for the purpose of Kurla Railway Terminus i.e. the ownership of the Public Authority’s on the land was only indicated on the sanctioned revised Development Plan. It was also set out that the said land was acquired by the Special Land Acquisition Officer for Central Railway by awarding compensation of the land acquired in the year 1965-66 and the said land has been put to use by the Central Railways. It was further set out that the TDRs are available only for the prospective development of reservation on its merits and that the development rights can be granted only for the land reserved for the public purpose where the development of reservation has ( 6 ) not been implemented. 8. The petitioners thereafter made an application to the Executive Engineer, Development Plan, setting out the background and requested to consider the application in the light of the facts set out therein and grant the TDR. By communication dated January 7, 2002 the Chief Engineer (Development Plan) rejected the request on the ground that in the sanctioned Development Plan of N Ward the land under reference was not reserved for any public purpose and that the existing user of the land is shown as Kurla Railway Terminus in the revised Plan. It was reiterated that the Development Rights are available only in cases where the development of reservation has not been implemented i.e.TDRs are available only for prospective development of reservation. The land was acquired by Railway Authorities under the Act and the possession of the same has been taken over by Railway Authorities on February 24, 1960 i.e.even before the publication of first Development Plan. The fact of taking over possession on February 24, 1960 was also upheld in Suit No.1448 of 1976 by the High Court of Bombay. In view of this, it was held that the owner of the land is not eligible for DRC and accordingly, rejected the request. 9. The petitioners thereafter made representation to the Hon’ble Chief Minister of the State of Maharashtra, ( 7 ) who was holding the port-folio of Urban Development Department on July 22, 2003 as per the Regulation 62 (3) of the DC Regulations. Since the representation was not disposed of, the Petitioners instituted Writ Petition No.2101 of 2007 in this Court which was disposed of on February 14, 2008 by directing the State of Maharashtra to dispose of the Appeal/representation after hearing the petitioners and the other concerned parties in accordance with law. The Court further directed the State Government Authorities to dispose of the said Appeal/Representation after giving reasons for the disposal of the said Appeal/Representation. Pursuant to that the Dy.Secretary passed the impugned order on May 17, 2008 rejecting the request for grant of TDRs. 10. In support of this petition, Mr.V.A.Thorat, learned Sr.Counsel i/by Mr.Pankaj Savant, learned Counsel contended that; (i) the imugned order was passed without hearing the petitioners; (ii) In the light of clarification dated March 8, 1995 since the petitioners have not received either part or full compensation, they are entitled to avail the benefit of TDR; (iii) The Acquiring Body viz.the Central Railway gave ( 8 ) NOC for grant of TDR under communication dated December 15, 1998 as also under communication dated July 8, 1999 the Special Land Acquisition Officer gave NOC for grant of TDR to the Petitioners; (iv) The directive issued by the State Government under Section 154 of the MRTP Act on February 3, 2007 is prospective in application and is not applicable to the facts of the present case; (v) The impugned order proceeded on erroneous assumption that under the sanctioned Development Plan of N Ward the said land was not reserved for public purpose and that in the revised Development Plan the existing use of the land was shown as Kurla Railway Terminus. 11. The petition was instutited on December 19, 2008 against (1) State of Maharashtra, (2) the Hon’ble Chief Minister of Maharashtra. 12. Opposing the petition, Mr.Sanjay Raghunath Kuruey Dy.Director of Town Planning made an affidavit on February 2, 2009 contending interalia that the area admeasuring 46 Acres from Survey No.103A part was acquired for Central Railway by an Award made on July 30, 1966. The total amount of compensation of Rs.10.23 ( 9 ) lakhs was granted equally between (1) M/s.Kirol Lands Limited; and (2) Marfatia family. The additional land admeasuring 12.12 Acres from survey No.103A part was acquired for Central Railway and the award was made on May 22, 1968. Under that Award the total amount of compensation of Rs.2.87 lakhs was paid equally to (1) M/s.Kirol Lands Limited, Sule and Thakkar and (2) Marfatia family. The affiant also made reference to the judgment of the learned Single Judge dated April 9, 1992 which recorded the finding that the area admeasuring 48 Acres 20 Gunthas out of Survey No.103 A was taken in possession on February 24, 1960 and similarly at that time itself another piece of land which was notified as land under Survey No.228 was also taken in possession. However, later on it was found that the land which was taken in possession under an impression that it was part and parcel of Survey No.228 was not in fact out of the said Survey No.228 but actually out of Survey No.103A. Accordingly fresh notification for acquiring 12 Acres 12 Gunthas for rectifying the situation was issued in the year 1965. The learned Single Judge held that the land of 12 Acres and 12 Gunthas which was taken in possession on February 24, 1960 and which was erroneously shown to be out of Survey No.228 was in fact out of Survey No.103A and was taken in possession on that day itself, and consequently the Central Railway took possession of 60 Acres 38 Gunthas totally out of the Survey No.103A. In view of the same, it was contended that the ( 10 ) Government clarification dated March 8, 1995 is inapplicable as possession was taken by the Railway Authorities on February 24, 1960 i.e.well before 12 years prior to December 14, 1989. 13. The affiant also reiterated that the development rights are available only in cases where the development of reservation has not been implemented i.e. the TDRs will be available only for the prospective development of reservation. In the sanctioned Development Plan of 1967 the land was not reserved for any public purpose and the existing user of the said land is shown as the Kurla Railway Terminus. The land was acquired by Railway Authorities under the Act. The attention was also invited to the direction issued by the State Government under Section 154 of the MRTP Act on February 3, 2007. The petitioners filed rejoinder affirmed on February 2, 2009. 14. On behalf of the Union of India represented by the General Manager, Central Railway, Chamber Summons No.62 of 2009 was taken out on February 24, 2009 for permitting them to intervene in the above petition and to be joined as Respondent No.3. An affidavit in support of the Chamber Summons was made by Salim Mohammed Khan, Divisional Engineer, (Land Management) of Central Railway Administration, Mumbai. To the said affidavit order of the Apex Court dated July, 22, 1994 ( 11 ) dismissing the SLP No.10792 of 1994 as also the judgment and order passed by the Division Bench on January 31, 1994 in Appeal No.457 of 1992 was enclosed. In substance, it is contended that the petitioners have no right, title and interest in respect of the said land and the Deed of Conveyance dated January 28, 1966 was held to be void and inoperative by the Apex Court in the order dated July 22, 1994. It was also set out that the possession of the 60 Acres 38 Gunthas was taken by the Railway Authorities on February 24, 1960 and even the original owners were divested of their right, title and interest. Consequently, the petitioners who claim that their predecessors in title acquired the ownership rights by virtue of deed of conveyance dated January 28, 1966 have no semblance of any right, title and interest. It was also pointed out that in Suit No.1448 of 1976 that Sules and Thakkar were impleaded as Defendant Nos.3 & 4. The claim for compensation made by them was resisted by Marfatia and Kirol Land Limited. The Special Land Acquisition Officer made reference under Section 30 of the Act to this Court in respect of the determination of rights claimed by Defendant Nos.3 & 4 and the Land Reference was numbered as LAR No.1 of 1972. In that suit Defendant Nos 1 & 2 i.e.the Union of India and the General Manager, Central Railway, claimed that the Defendant Nos.3 & 4 had no title to the said land. The said reference came before the learned Single Judge on April 8, 1993 and the Defendant Nos.3 & 4 did not ( 12 ) appear before the lerned Single Judge and the learned Single Judge came to the conclusion that the Defendant Nos.3 & 4 therein had no interest in the said land and the entire compensation was held to be payable to the true owners viz.Marfatia and Kirol Land Limited. The decision recorded by the learned Single Judge in the reference proceedings determined alleged right, title and interest of Defendant Nos.3 & 4 and the said decision concluded that Defendant Nos.3 & 4 had no right, title and interest on the said land at any stage and atleast on the date when notification u/s.4 of the Act was published on July 13, 1965. The said finding recorded by the learned Single Judge became final. 15. Even the Apex Court while dismissing the SLP on July 22, 1994 in paragraph 4 of the order has clearly recorded the finding that Defendant Nos.3 & 4 (Sule & Thakkar) had no ghost of right, title and interest in the land acquired from the original owner Maibai. The said sale is void sale and the petitioners (Premji R.Shah & Others) claiming to be successors from Defendant Nos.3 & 4 cannot derive any interest. The Apex Court ultimately dismissed the SLP with the exemplary cost of Rs.30,000/-. 16. The Chamber Summons No.88 of 2009 was taken out by Yashwantrao Manyasaheb Rajeshirke praying for permitting him to intervene in the above petition and to be joined ( 13 ) as Respondent. In support of the Chamber Summons, an affidavit was made by Shri.Rajeshirke opposing the petition. 17. We have considered the rival submissions made by the learned Counsel appearing for the parties. In our judgment, the petitioners cannot maintain the present petition. The petitioners have absolutely no right, title and interest in the said land. As set out earlier, the Central Railway took possession of the said land on February 24, 1960 and from that date the original owners viz.Marfatia and Kirol Land Limited were divested of their right, title and interest. If that be so, the petitioners contention that their predecessors in title viz.Shrikrishna Balawant Sule and Shankarlal Ambalal Thakkar purchased the said land under the deed of conveyance dated January 28, 1966 cannot be accepted. This was concluded in Land Acquisition Reference No.1 of 1972. Thereafter the learned Single Judge, on April 9, 1992 decided the Suit No.1448 of 1976 and the said judgment was upheld by the Division Bench on January 31, 1994 and the SLP against this was dismissed by the Apex Court on January 22, 1994 by imposing exemplary cost of Rs.30,000/-. This judgment really speaking concluded the alleged rights of the Petitioners. Even the petitioners did not receive compensation in the land reference. In view of this, it cannot be said that the petitioners are the persons interested within the ( 14 ) meaning of Section 3(b) of the Act. The TDR can be given u/s.126(1) (b) of the MRTP Act in lieu of monetary compensation. As set out earlier, the petitioners did not receive and could not have received monetary compensation, equally they cannot claim TDR in lieu of amount of compensation. 18. Apart from that, the petitioners have claimed TDR belatedly and the reliance placed by them on the NOCs issued by the Central Railway and the Special Land Acquisition Officer are of no avail. In the present case, the said land was acquired invoking the provisions of the Act and not the MRTP Act. The concept of TDR was introduced in the MRTP Act by adding clause (b) to Section 126(1) w.e.f.March 25, 1991. Prior thereto, any land required or reserved for any of the public purposes specified in plan or scheme under that Act, could be acquired by the Planning Authority, Development Authority or as the case may be any appropriate Authority, either by an agreement by paying the amount agreed to, or by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894. In the present case, the Central Railway made an application to the State Government for acquiring land under the Land Acquition Act 1894 and in fact the acquisition was concluded thereunder. Thus, option was exercised by the Railway Authorities and accordingly, possession was taken on February 24, 1960 ( 15 ) by invoking urgency clause and the Awards were made in 1965 and 1966. 19. Relevant portion of amended Section 126(1) reads thus: Where after the publication of a draft Regional Plan, a Development or any other plan or Town Planning Scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act, at any time the Planning Authority, Development Authority or as the case may be, any Appropriate Authority, may acquire may acquire may acquire the land; (a) by an agreement by paying an amount agreed to, or (b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the 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 ( 16 ) encumbrances, and also further additional Floor Space Index or Transferable Development Rights agaisnt the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894. 20. In the instant case, a perusal of Section 126(1) clearly indicates that the acquisition contemplated thereunder is in future. In the present case, the acquisition was completed after taking possession in the year 1960 and after making of the Awards in the year 1965-66. Thus assuming that the land was under reservation in the Development Plan, the acquisition was completed by invoking Section 126(1) (c) of the M.R. & T.P.Act. Now the clock cannot be set back by directing the authorities to grant TDR in lieu of monetary compensation. 21. Apart from above, the petitioners have not impleaded the Municipal Corporation of Greater Mumbai who grants TDR by issuing DRCs. In fact they did not even challenge the communications dated December 3, 1999 ( 17 ) and January 7, 2002 addressed by the Authorities of the MCGM. Not only that, the petitioners did not implead the acquiring body viz. the Central Railway and the Central Railway took out Chamber Summons and enclosed the orders passed by this Court and the Apex Court to the affidavit in support of the Chamber Summons. 22. We are more than satisfied that the petitioners have suppressed the material facts with a view to obtaining favourable orders and attempted to mislead this Court. We also do not find any substance in the contention advanced on behalf of the petitioners that the impugned order dated May 17, 2008 was passed without hearing the petitioners and that in the light of the clarification dated March 8, 1995 they are entitled to avail the benefit of TDRs. Basically the petitioners have failed to establish any semblance of right, title and interest over the said land. This is not a fit case for invocation of the writ jurisdiction. We are, therefore, declining to exercise our jurisdiction under Article 226 of the Constitution of India. 23. Though the title of the petitioners was concluded in 1994, still they are persisting in claiming the compensation, when in fact their claim for compensation was rejected in Land Acquisition Reference No.1 of 1972. We are therefore imposing exemplary cost on the petitioners. Petition stands dismissed with costs which ( 18 ) is quantified at Rs.1,00,000/- (one lakh). Rule is discharged. 24. In view of dismissal of the Writ Petition itself, nothing survives in the Chamber Summons No.62 of 2009 and the Chamber Summons No.88 of 2009. Hence, both the Chamber Summons also stand disposed of. (J.N.PATEL, J.) (J.N.PATEL, J.) (J.N.PATEL, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.)