1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.634 OF 2004 1. Yeshwant Jagannath Vaity of Bombay Indian inhabitant) residing at Gavanpada Village, Mahatma Phule Road, ) Mulund (East), Bombay-400 081 ) 2. Bayobai widow of Parshuram Vaity of Bombay indian ) inhabitant , residing at Gavanpada Village, Mahatma ) Phule Road, Mulund (East), Bombay-400 081 ) 3. Tukaram Parshuram Vaity also of Bombay indian ) inhabitant, residing at Gavanpada village, Mahatma ) Phule road, Mulund (East), Bombay-400 081. )....Petitioners V/s. 1. The Municipal Corporation of Greater Bombay ) a body corporate constituted under the provisions ) of the Bombay Municipal Corporation Act, 1988, ) having its office at 1, Mahapalika Marg, ) Bombay-400 001. ) 2. The Chief Engineer, Development Plan, Municipal ) Corporation of Greater Bombay, having his ) office at 1, Mahapalika Marg, 4th Floor, ) Bombay-400 001. ) 3. The State of Maharashtra ) C/o. Office of the Govt.Pleader (O.S.) High Court, ) Bombay-400 032. )..Respondents 2 ---- Mr.Virag Tulzapurkar, Sr.Advocate with K.B.Chandrana i/by Humranwala & Co. for the petitioners. Mr.K.K.Singhavi, Sr.Advocate with Ms.S.M.Modle for the respondent. ---- Coram : D.K.DESHMUKH & R.S.MOHITE,JJ Date : 18th JUNE, 2009. JUDGMENT :- ( Per : R.S.Mohite,J) 1. The petitioners have filed this petition for a writ or order directing the respondents to grant additional TDR (transfer development rights) and to issue a further DRC (development rights certificate) equivalent to 2646.14 square meters being 85% of the area of a court yard developed by the petitioners for the benefit of Respondent no.1 to which they are entitled under clause 6 of Appendix VII of the Development Control Regulation for Greater Bombay, 1991 as also under a consent order passed by this Court on 10.3.1992. The other reliefs which have been sought in this petition are for quashing a policy circular of Respondent no.1 dated 9.4.1996 and for a declaration that the said policy has no retrospective effect and has no effect on the petitioners’ vested rights under the consent order 3 passed by this Court on 10.3.1992. 2. The relevant facts of the case in chronological order are as follows : (a) That under a development plan for Greater Bombay as sanctioned in the year 1957, a property belonging to the petitioners admeasuring 10,000 square yards situated in Mulund village was shown as reserved for the public purpose of construction of a godown. (b) In anticipation of proceedings under the Land Acquisition Act, on 27.7.1967, the petitioners and four other co-owners agreed to hand over possession of the said 10,000 square yards to Respondent no.1 for temporary use as a truck terminal and for housing a town duty office and accordingly, on 18.9.1961 the petitioners and the other 4 co-owners handed over the possession of the said area i.e. 10,000 square yards to Respondent no.1. (c) On 16.12.1967, an agreement was entered into by and between the Petitioners, other co-owners and Respondent no.1 whereby it was agreed that pending the acquisition of the said area 10,000 square yards, the Petitioners and other co-owners would receive compensation of Rs.90,000/-. (d) That however, from 1967 till November-1998, this 10,000 4 square yards of land belonging to the Petitioners and other co- owners were not put to use for the public purpose for which it was intended to be acquired or for any other purpose. (e) In the circumstances, in November-1998, on the footing that no steps had been taken by Respondent no.1, the Petitioners filed a Writ petition in this Court being Writ Petition No.3437 of 1998 inter alia praying for a declaration that it was now not open for Respondent no.1 to acquire the said area of 10,000 square yards. (f) The said Writ petition came to be finally disposed off by the order of this Court dated 10.3.1992 in terms of the consent terms arrived at and by between the parties. Under the consent terms, Respondent no.1 agreed to retain and acquire an area of 3500 square meters for the purpose of establishing and constructing an export octroi office. The consent terms provided that Respondent nos.1 & 2 shall hand over the remaining area after acquiring the said area of 3500 square meters to the Petitioners against the Petitioners refunding to the Respondents an amount of Rs.90,000/- together with interest thereon @ 10% per annum from the date of making the payment till the date of repayment to Respondent no.1. The said consent terms further provided that the Petitioners would be entitled to TDR to the extent provided in the Development Control 5 Regulation in respect of the 3500 square meters in lieu of repayment of Rs.90,000/- together with interest. The consent terms also provided that Respondent no.1 would grant TDR in lieu of the said land admeasuring 3500 square meters, subject to the compliance of various requirements by the Petitioners as required under Regulation-34 and Appendix-VII of the Development Control Regulation Rules of Greater Bombay 1991. Clause-9 of the Consent terms further provided that if the petitioners constructed and developed the export office for Respondent no.1 on the area of 3500 square meters and handed over the said premises to Respondent no.1 free of cost, the Petitioners would be entitled to the benefit of additional transferable development rights as per sub-regulation 6 of appendix-VII. Clause 9 of the consent terms was in the following terms :- 9. The petitioners shall be entitled to the benefit of Additional Transferable Development Rights (hereinafter referred to a `ATDR’), if the petitioners are asked by the Respondent No.1 to construct and develop the Export Office for the Corporation on the land so surrendered at their 6 own costs and as per the plans and designs and specifications of the Respondent No.1 and hand over the premises so constructed to the Respondent No.1 free of costs as per the sub- regulation 6 of Appendix VII of the Development Control Rules for Greater Bombay, 1991.” (g) It may be stated here that the consent terms were modified further by an order of this Court dated 10.4.1992 but the said modification is not relevant to the issue required to be decided in this petition. (h) On 18.4.1992 the Constituted Attorney of the Petitioners addressed a letter to Respondent no.2 calling for a joint survey and demarcation and also requested Respondent no.2 to inform him about the details and specifications of the work that the Petitioners would have to carry on to claim TDR as per paragraph-4 and the additional TDR as per paragraph-9 of the consent order. (i) On 25.4.1992 the Assessor and Collector of Respondent no.1 replied to the aforesaid letter inter alia informing the Constituted Attorney of the Petitioners that the Petitioners would have to carry out the work of levelling of the plot, construction of compound wall 7 on three sides and gates, development of yard with asphalting and the construction of an export office building as per details of specifications already submitted to Dy. C.E.(P & D)/Municipal Architect on 20.9.1991. The Constituted Attorney was directed to approach the concerned authority for details of plan and specifications of the matter. (j) On 25.5.1992 the Architect of the Petitioners made an application to Respondent no.1 for grant of transferable development right in respect of 3500 square meters of area surrendered by the Petitioners to Respondent no.1. On 13.10.1992 the Petitioners paid to Respondent no.1 a sum of Rs.3,15,000/- comprising of the principal amount of Rs.90,000/- and the balance amount of interest @ 10% per annum from the date of payment till the date of the repayment as agreed to under the consent terms. (k) On 22.1.1993 the Petitioners through their Constituted Attorney addressed a letter to the Assessor and Collector asking for further details relating to the work to be carried out on the said 3500 square meters of land. (l) On 5.3.1993 the Assessor and Collector of Respondent no.1 addressed a letter to the Constituted Attorney of the Petitioners enclosing a sketch plan for the proposed export office together with 8 the development of yard. The letter informed the Petitioners that as per the Municipal Commissioner’s direction, additional TDR in lieu of development of export yard and construction of office would be granted to the Petitioners. The Petitioners were requested to expedite the work relating to the construction of export office and development of the court yard. (m) On 7.6.1993 the Municipal Architect addressed a letter to the Constituted Attorney of the petitioners enclosing specifications for asphalting. The letter mentioned that the work was to be carried out under the supervision of Municipal Engineer. (n) By further letter dated 23.6.1993 addressed by the Chief Engineer of Respondent no.1 to the Constituted Attorney of the Petitioners, the Petitioners were informed that the development rights certificate would be issued after complying with certain additional requirements as contained in the said letter. On 13.9.1993 the Petitioners’ Constituted Attorney wrote a letter to the Assistant Engineer of Respondent no.1, listing therein various compliances and requesting for issue of development rights certificate in respect of the 3500 square meters of land. (o) On 9.2.1994 this letter was replied to by the Deputy Chief Engineer informing the Constituted Attorney of the Petitioners that 9 the Petitioners’ right to grant development certificate will be considered after they commenced work of construction of the export office as per the municipal specification and approved plan. On 22.2.1995 the Chief Engineer of Respondent no.1 addressed a letter to the Constituted Attorney of the Petitioners giving his NOC for constructing the export office building subject to the terms and conditions mentioned in the said letter. Condition nos.1 & 4 of the said letter which has relevance to the issue involved in this petition were in the following terms :- 1. That you will construct the Export Office building as per the plans & specifications of the Municipal Corporation enclosed herewith and the Municipal Corporation will grant the Transferable Development Rights equivalent to the built-up area of the Export office. 4. That you will concrete/asphalt the portion of the Export Office Yard around the Export Office building as per the specifications of M.C.G.B and as given by the Chief Engineer (Roads & S.W.D.) of the M.C.G.B. The work will be carried out under the Municipal supervision and certified by the Competent Authority. The Municipal Corporation will grant the benefit of Transferable Development Right in respect of the concrete/asphalted surface 10 area around the Export Office building as and when the quantum of such T.D.R is decided by the Municipal Commissioner. (p) After receipt of this letter the petitioners constructed the export office and also developed the area surrounded being the export office yard in accordance with the specifications. (q) After completion of the export office as well as court yard of export office, possession of the same was handed over to Respondent no.1 and Respondent no.1 issued a possession receipt. The said possession receipt mentioned the details of the constructed amenity as under :- ------------------------------------------------------------------------------------------------------- - Sr. Particular of Description of Floor/Total Fixtures No. land/building constructed built-up area amenity 1. CTS No.137-A Export office Gr.Fl.293.13 sq. Electric of village & chowky for m. 1st Fl.170.15 fittings Mulund (East) octroi Deptt. sq.m. Exit. Fixtures as office 27.88 sq. advised by E.E.(Mech) & Water cooler ----------------------- Total 491.16 sq.m. ----------------------- 11 2. CTS No.137-A Court yard of Area as shown by Electric of village Export office A B C D E F G H poles and Mulund(East) office I J K on the plan carriage duly certified by entrance to Roads Deptt. Under plot & front No.DYCHE/1486/ compound /Rds.dt.23.2.96 wall. (r) By his letter dated 28.7.1998 the petitioners’ Architect applied for grant of DRC enclosing necessary documents. On 19.1.1999 respondent no.1 issued a development right certificate for additional TDR in respect of the export office being 491.16 square meters equivalent to 100% of the built up area of the export office. However, in so far as the additional transferable rights in lieu of the development of the export court-yard surrounding the export office, the same were restricted to 466.96 square meters being 15% of the built up area of the court yard. (s) On 7.3.2000, Constituted Attorney of the petitioners addressed a letter to the Municipal Commissioner claiming that under the law, they were entitled to additional transferable rights to the extent of 3113 square meters as against the development of the court yard of the export office. Ultimately, on 27.6.2000, the Chief Engineer addressed a letter to the Constituted Attorney of the Petitioners refusing to grant further additional 12 TDR contending that the TDR issued was in accordance with the BMC policy. (t) On 6.7.2000 the Constituted Attorney of the petitioners once again demanded a further development rights certificate for the balance area and requested Respondent no.1 to provide him with particulars of the alleged policy. (u) On 9.8.2000 the Deputy Chief Engineer of BMC addressed a letter to the Constituted Attorney of the Petitioners referring to the impugned Circular dated 9.12.1996 and requested the Petitioners to attend his office for discussion. Accordingly, on 11.8.2000 the Constituted Attorney of the Petitioners attended the office of the Deputy Chief Engineer and was granted inspection. (V) On 1.12.2000 the Petitioners filed Contempt petition no.116/2000 alleging violation of the consent order dated 10.3.1992. (w) On 28.11.2003 this Contempt petition was dismissed on the ground that there was no willful disobedience. The Court however, did not go into the question of entitlement of the Petitioners. 13 (x) On 23.12.2003 the Petitioners addressed a letter to Respondent no.1 calling upon them to grant further DRC for the remaining 85 % of the area of the court yard and since the demand was not met, on 9.2.2004 present petition came to be filed. 3. We have heard both the parties and perused the record. It is the contention of the Petitioners that under clause-9 of the Consent terms dated 10.3.1992 they were entitled to benefit of additional transferable development rights in view of developing export office of the Corporation in accordance with Sub-regulation 6 of appendix- VII of the Development Control Rules of Greater Bombay 1991. It is their further contention that by the letter of the Assessor/Collector, they were informed that they were to carry out the works of levelling of the plot, construction of compound wall at three sides and gates, development of yard with asphalting and the construction of export office building as per details of specifications already submitted. That by the letter issued by the Chief Engineer of Respondent no.1 dated 22.12.1992 they were granted NOC to the development subject to certain conditions. Condition no.4 provided that the Municipal Corporation will grant benefit of transferable development rights in respect of the concrete/asphalted surface 14 around the export office building as and when the quantum of such TDR was decided by the Municipal Commissioner. It is their further contention that the court yard built by them was an amenity within the meaning of regulation 2(7) of the Development Control Rules of Greater Bombay 1991 and under clause 6 of the Appendix VII of the DCR Rules, on construction of an amenity, they were entitled for development right in the form of FSI equivalent to the area of construction/development actually done. It is therefore, their contention that having provided an amenity they were entitled and ought to have been granted a DCR certificate for an area equivalent of 100% to the area of court yard. Since the DCR was granted only 15% of the area, they prayed for further additional development control certificate be issued in respect of 85 % of the balance area of the court yard. 4. On behalf of the Respondents it was contended that the petition suffers from latches. That the Development Control Certificate had been issued to the petitioners in 1998, whereas the Petitioners have filed this petition in the year 2004. Relying upon the judgment of the Apex Court in the case of Laxminarayan R.Bhattad Vs. State of Maharashtra reported in (2003) 5 15 Supreme Court Cases 413, it was contended that the Regulations 33 and 34 of the 1991 Regulations are only enabling provisions and did not create any legal right to get additional TDR. The said Regulations conferred wide discretionary power on the part of the authorities. Each case was required to be considered on its own merits. It was argued that the Petitioners had only a right to be considered and had no legal right to get additional TDR, there existed a discretion with the Municipal Commissioner to grant the additional TDR. That since the exercise of this discretion could not be arbitrary, uniform guidelines had been laid down by issuing the impugned Circular dated 9.4.1996. This Circular listed various amenities where 100% FSI was given and other amenities were only 15 % additional development rights could be granted. It was lastly contended that the export office court yard was not an amenity within the meaning of section 2(7) of the Development Control Rules of Greater Bombay 1991. 5 After having heard both sides, in our view, the petition will have to be allowed for the following reasons :- (A) It is now well settled that the DCR of Greater Bombay have statutory force. Clause-6 of the Appendix-VII of Regulation 34 of the 16 DC Rules 1991 provides for the benefit to be enjoyed by a person who construct an amenity and is in the following terms :- Clause-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, utilisation of which etc. will be subject to the Regulations contained in this Appendix. The word amenity has been defined in definition 2(7) as under :- “Amenity” means roads, streets, open spaces, parks recreational grounds, play grounds, gardens, water supply, electric supply, street lighting, sewerage, drainage, public works and other utilities, services and conveniences.” 6. We find that in the Circular dated 9.4.1996 which is issued by the Municipal Commissioner, 100% FSI is grantable in respect of 10 amenities which are as under :- a) Municipal Transport Garage b) General Hospital c) Fire Station d) Auditorium e) Electrical Crematorium f) Municipal Workshop 17 g) Municipal Primary School h) Municipal Retail Market i) Town Duty Office j) Office Building 7 Under clause-2 of the said cricular additional TDR of 15% is grantable in open spaceamenities like garden, play ground, R.G.parking, open spaces burial ground. Finally under clause-3 additional development rights is grantable equivalent to 15% of the area of DP road constructed by the owner as per municipal specifications. In a group of matters headed by Civil Appeal No. 1746/2007 (Godrej & Boyce Manufacturing Co.Ltd., Vs. State of Maharashtra & Ors.) the Apex Court considered the question as to whether the owner of the land who has constructed a road was entitled to development right restricted to 15% of the area of the constructed road as limited by the impugned circular dated 9.4.1996. The petitioners in that case had contended that they were entitled to development rights equivalent to the area of the construction under paragraph-6 of Appendix-VII of Regulation 34. The Supreme Court was therefore, called upon to decide, on almost identical facts ( the difference being the development of the road in the case before the Apex Court and the development of the asphalted court yard in the 18 present case), the entitlement of the person who had developed the amenity under the same provisions of law with which we are concerned. The Apex Court decided in favour of the petitioners and held that the Municipal authorities were not authorised to over ride the statutory provisions of the DCR by issuing Circulars. The Supreme Court thus allowed the appeal and held that the petitioners were entitled to equivalent area and that the measures of equivalence was the actual area of development and not the value of the amenity and held that the value could not be used as a basis for determining such equivalence. In our view, the issue in the present case stands concluded by the judgment of the Apex Court in that aforesaid case. 8 We find no substance in the contention raised on behalf of Respondent no.1 that the asphalted court yard is not an amenity within the meaning of regulation 2(7). The word amenity is defined in very wide terms and includes “other utilities & conveniences”. An asphalted a court yard is certainly a utility that can be used for outdoor storage and parking. It is also a convenience as it can be used for an anciliary purpose. It is not possible to accept the contention that a narrow meaning should be given to this term. 19 9 It is also not possible to accept the contention raised on behalf of Respondent no.1 that since there was discretion granted on the Commissioner, he has properly exercised the same in accordance with the uniform rules laid down in the impugned circular. In this regard we find that the impugned circular does not deal with an asphalted court yard as an amenity at all. Apart from this, even accepting that Regulations 33 & 34 are enabling provisions and do not create legal right to get additional TDR, thereby vesting a discretion in the Municipal Commissioner, since there exists a provision in the DCR which has statutory force, the discretion in this regard ought to have been exercised in accordance with the said provision being clause-6 of Appendix-VII of Regulation-34.We also find no substance in the contention raised on behalf of the Respondents that the petition must bed dismissed on the ground of latches. The record indicates that after the grant of DRC on 19.1.1999, the question of granting additional transferable rights has been continuously agitated. A letter in this regard has been written on behalf of the petitioners on 7.3.2000 and immediately thereafter on 1.12.2000 a Contempt Petition came to be filed by the petitioners for enforcing their rights. This Contempt 20 petition was dismissed on 28.11.2003 and even thereafter on 23.12.2003, a demand was made and this Petition was filed immediately thereafter. 10 In this view of the matter, the petition must succeed. Since we have held that the circular prima facie, does not cover the nature of development carried out in the present petition, we find no need to go into the validity or retrospective nature of theimpugned circular. 11 In the circumstances, the following order is passed :- O R D E R 1) Rule in the petition is made absolute in terms of the prayer clause-(a) ; 2) No order as to costs ; 3) At the request of the learned Counsel appearing for the respondent-Corporation, respondent Corporation is granted 12 weeks time to implement the order. (D.K.DESHMUKH,J) ( R.S.MOHITE, J. ) 21