1 wp-1709-2011 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1709 OF 2011 Behram Nadirshaw Karbhari & Ors. ..Petitioners Vs. The State of Maharashtra & Os. ..Respondents Mr. Milind Jadhav a/w Mr. Nikhil Pai i/b M.J.Humranwala for the the Petitioners Mr. D.A.Nalawade GP for Respondent Nos.1, 2 & 5 Ms Kiran Bagalia for Respondent No.3 Ms P.A.Purandare for BMC CORAM : P.B.MAJMUDAR & R.M. SAVANT, JJ. DATE : 17th OCTOBER, 2011. P.C. 1 The above Petition has been filed by the land owner for implementing the contents of the Award dated 15-1-2009. In so far as, the grant of Development Rights Certificate (DRC) in respect of TDR is concerned, the Petitioners have also challenged the Award dated 15-1-2009 on the ground that they be awarded monetary compensation instead of TDR. 2 The land of the Petitioners is coming in the alignment of the Road Over Bridge on the Jogeshwari-Vikhroli Link Road and, therefore, was notified for acquisition for the said purpose. Ultimately by following the gamut of process as envisaged under the Land Acquisition Act, an 2 wp-1709-2011 Award came to be declared on 15-1-2009 in respect of various lands which were acquired for the said project, which included the lands of the Petitioners. In so far as, the Petitioners are concerned, the Award discloses that as and by way of compensation they have been granted Transferable Development Rights (TDR) in respect of which the authorities would be issuing the DRC. 3 Though the award was passed granting compensation to the Petitioners by way of TDR, issue of grant of TDR to land owners whose lands were affected by encroachment had engaged the attention of the Municipal Corporation and the State Government. In respect of the said issue it appears that correspondence was exchanged between the Municipal Corporation and the State Government; however, the same has not crystalised into any decision taken by the State Government. This resulted in the Petitioners filing the above Petition and it is the grievance of the petitioners that though the Award has been passed on 15-1-2009, the Petitioners have not been compensated either by way of TDR or by monetary compensation. 4 In the light of the aforesaid conspectus of facts and considering the seriousness of the matter, wherein the construction of a vital link in the arterial roads of Mumbai, that is the construction of the Jogeshwari-Vikhroli Link Road being affected, we had directed the Chief Secretary of the State to look into the matter by holding meetings between the concerned authorities. Accordingly, meetings were held by 3 wp-1709-2011 the Chief Secretary wherein the representatives of the MMRDA and the officers of the Corporation were asked to remain present. Pursuant to our directions issued on the last date i.e. on 03-10-2011, an Affidavit has now been filed by the State Government of one Mr. Noreshwar Raghunathrao Shende, Joint Secretary Urban Development Department. To the said affidavit is annexed an order dated 14-10-2011, issued in exercise of the powers under Section 37(1) of the MRTP Act, 1966. By the said order directions had been issued to the Municipal Corporation to the following effect: “A) The said Corporation shall initiate modification to Regulation 34 of the said Regulation as follows: Following proviso shall be added in Regulation 34, Appendix VII-A, Clause No.15. Provided that in case of encumbered plots which are required for implementation of public project on very urgent basis following policy guidelines shall be applicable. (1) In case of land which are / were fully encumbered and where encumbrances had / have to be removed and rehabilitated elsewhere by the project implementing authority, the owner of such lands shall be considered eligible for claim of TDR to the extent of 25% of the plot area. (2) In case of land which are partly encumbered and where encumbrances are/were removed and rehabilitated elsewhere by project project implementing authority, then the owner of such lands will be considered eligible for claim to TDR as under: (a) For the portion of land which is / was vacant 100% of the vacant area of land. 4 wp-1709-2011 (b) For the portion of land which is/was encumbered – 25% of the area of the land under encumbrances. Project implementing authority shall separately certify the area of land which was vacant and the area of land under encumbrances along with details as per the joint measurement survey carried out in this respect with City Survey Officer. The area of vacant land and land under encumbrances shall be clearly distinguished and demarcated, otherwise the land under part encumbrances shall be treated as fully encumbered land. (3) The Owner / claimant has to follow the procedure laid down by Municipal Corporation of Greater Mumbai for granting the Development Right Certificate. (B) The said Corporation is further directed to publish the requisite notice for inviting suggestion/objections over the said modification proposal within ninety days from the date of issue of this direction. (C) After completing the legal procedure as laid down under Section 37(1) of the said Act, the said modification may please be submitted to Government for final sanction.” 5 Considering the said Affidavit, it can now be said that the authorities have moved in the right direction by taking steps to amend the concerned development control regulation. A grievance is made by Mr. Jadhav the Learned Counsel appearing for the Petitioner that the steps as contemplated by the State would take it own time thereby further delaying and depriving the Petitioners of the compensation that they are entitled to. We are afraid we cannot countenance the said 5 wp-1709-2011 submission of the Learned Counsel as the authorities would be obliged to follow the necessary procedure for amending the development control regulation in question. We hope and trust and expect that the said exercise would be carried out expeditiously, so that a decision is taken as regards the entitlement of the petitioners as well as persons similarly situated for grant of TDR for acquisition of their lands for public projects. The Learned Government Pleader assures the Court that the said exercise would be completed within reasonable despatch by following the statutory procedure. 6 In so far as, the measurement of the land of the Petitioners is concerned, the Learned Counsel for the Respondent Corporation submits that the land of the Petitioners were measured in the year 2004 by the City Survey Officer and accordingly a measurement sheet has been prepared by the City Survey officer. The Learned Counsel for the Respondent Corporation further submits that the area of the Petitioners land is mentioned in the property card and it would be for the said area that the Petitioners would be entitled to grant of TDR. We find considerable merit in the said submission of the Learned Counsel appearing for the Municipal Corporation and, therefore, do not deem it necessary to issue directions to carry out the exercise of measuring the lands of the Petitioners. We, therefore, reject the said prayer of the Petitioners for measurement of their land. The measurement sheet is taken on record and marked as ‘X’ for identification. 6 wp-1709-2011 7 The Learned Counsel appearing for the MMRDA and the Municipal Corporation draw our attention to the status of the road over bridge on the Jogeshwari-Vikhroli Link Road and for the said purpose seek to rely upon a photograph. The said photograph discloses that the work of the road over bridge has almost come to the point of the Petitioners property and, therefore, we are of the view that there cannot be any further delay in handing over possession of the land of the Petitioners to the authorities, to facilitate the construction of the said Road Over Bridge. Upon this, the Learned Counsel appearing for the Petitioners submits that in the Affidavit in Rejoinder dated 19-9-2011 filed by the Petitioner No.1 in the above Petition, it is stated that the Petitioners would hand over possession of their land to the authorities on or before 31-10-2011. We accept the said statement in the affidavit and which is reiterated in Court by the Learned Counsel for the Petitioners, which is made on the instructions of the Petitioner No.1 who is personally present in Court. 8 In so far as, the alternate accommodation is concerned, the Learned Counsel for the Corporation states that alternate accommodation has already been shown to the Petitioners out of which the Petitioners have chosen Room Nos.201, 202 & 203 in Nesco Colony, Goregaon. The Learned Counsel for the Petitioners states that though the allotment has been made, it is not possible for the Petitioners to pay the amount of Rs.31 lacs towards the charges of the 7 wp-1709-2011 said accommodation in the absence of the Petitioners being compensated either by way of TDR or monetary compensation. We appreciate the difficulty faced by the Petitioners and therefore, direct the Respondent No.1 that though the Petitioners may not take possession of the said three rooms in question, the Respondent No.1 Corporation may not allot the said three rooms to any other person or persons till the issue as regards entitlement of the Petitioners to compensation either by way of TDR or monetary compensation is resolved. The said rooms would be earmarked for the Petitioners, till a decision on their entitlement is arrived at. 9 In the light of the above, we do not see the necessity of issuing any further directions in the above petition. The Writ Petition is accordingly disposed of. (R.M.Savant, J.) (P.B.Majmudar, J.)