1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2058 OF 2010 Godrej & Boyce Manufacturing Co.Ltd.& Anr. .. Petitioners V/s The Municipal Corporation of Gr.Mumbai & Ors. .. Respondents Mr.Aspi Chinoy, Senior Advocate with Mr.Milind Sathe, Senior Advocate & Mr.A.A.Joshi i/by Mr.Nivit Srivastava for the petitioners. Mr.A.Y.Sakhare, Senior Advocate with Mr.K.K.Singhvi, Sr.Advocate & Ms.Preeti Purandare & Ms.V.S.Gharpure for the Respondents. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE: 8th August, 2011. JUDGMENT: (Per R.G.Ketkar, J.) 1. By this petition under Article 226 of the Constitution of India, petitioners have prayed for issuance of writ of mandamus directing the Respondents to forthwith grant to the petitioners Development Rights Certificate (for short D.R.C.) of total area of 31057.30 sq.meters for the construction and development of the amenity viz.Recreation Ground (for short R.G.) as set out in the petitioners applications dated 17.04.1998 (Exhibit ‘K’), 03.11.2009 (Exhibit ‘O’) and 23.07.2010 (Exhibit ‘Q’). 2. Petitioner No.1 is a company incorporated under the Companies 2 Act, 1956. Petitioner No.2 has entered into an agreement to purchase part of the property owned by Petitioner No.1 and has for valuable consideration been irrevocably appointed as a constituted attorney of the Petitioner No.1. Respondent No.1 is the Municipal Corporation of Greater Mumbai (for short the ‘Corporation’). Respondent No.2 is the Municipal Commissioner and the Respondent No.3 is Executive Engineer (Development Plan) of the Corporation. 3. It is the case of the petitioners that they were owners and otherwise well and sufficiently entitled to that piece and parcel of land bearing C.T.S.No.2B (part) falling in ‘N’ Ward admeasuring 2710 sq.meters and C.T.S.Nos.2B (part) and 3B falling in ‘S’ Ward admeasuring 28347.30 sq.meters of village Ghatkopar, Taluka Kurla (for short the said lands). The said lands were reserved in the Development Plant for Greater Mumbai for public amenity viz. Recreation Ground (for short R.G.), Under the Development Control Regulations for Greater Mumbai, 1991 (for short ‘Regulations’) and in particular, Regulation 34 read with Appendix VII thereof, when the owner or lessee of a plot which is reserved for the public purpose in the Development Plan and for 3 additional amenities which are deemed to be reservations provided in accordance with the Regulations, are eligible for the award of Transferable Development Right (for short T.D.R.) in the form of Floor Space Index (for short F.S.I.) to the extent and on the conditions set out therein. The owner or the lessee of a plot of land which is reserved for amenities/ public purpose in the Development Plan, is eligible for T.D.R. In F.S.I.) (i) equal to the gross area of the reserved plot to be surrendered as per clause 5 of Appendix VII of Regulation 34, and (ii) further T.D.R.in the form of F.S.I.equivalent to the area of construction/development done by him on the surrendered plot at his costs 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 costs as per clause 6 of Appendix VII of Regulation 34 of the Regulations. 4. It is the case of the petitioners that they surrendered the said lands covered by the R.G.Reservation to the Corporation and were given T.D.R.in the year 1996 equal to the area of the said land in accordance with clause 5 of Appendix VII of Regulation 34 of the 4 Regulations. The petitioners thereafter at considerable expense developed and handed over the said amenity/ R.G.in accordance with plans / layouts sanctioned by the Corporation and requested for equivalent T.D.R./ F.S.I.under clause 6 of Appendix VII of Regulation 34 of the Regulations. However, Corporation refused to give additional T.D.R.by relying on its policy circular which lays down that such additional T.D.R.would be given for buildable ameminites upto to 15% / 25% for roads developed /constructed and would not be admissible for Recreation Grounds developed. 5. It is the case of the petitioners that earlier the Petitioner No.1 had constructed the Development Plan Road and the Corporation, relying upon the said policy circular, had denied them T.D.R.equivalent to 100% of the road area. The Petitioners had filed Writ Petition No.845 of 1998 which was dismissed by this Court on 18.10.2005. The Apex Court by its judgment & order dated 06.02.2009 reported in the case of Godrej & Boycee Manufacturing Co.Ltd.v/s.State of Maharashtra, (2009) 5 SCC 24, set aside this Court’s decision dated 18.10.2005 and allowed the Writ Petition No.845 of 1998. The Apex Court held 5 that (i) the municipal authorities cannot override or supersede the statutory provisions contained in clause 6 of Appendix VII of Regulation 34 of the Regulations by issuing circulars in the nature of executive instructions (ii) the regulation fixes the measure of equivalence by using the words “equivalent to the area of construction/development done on the surrendered land. The area of construction/development having been fixed as the measure of equivalence, it is no longer open to the Corporation to contend that any other basis such as value may be used for determining the equivalence. After the judgment of the Apex Court, the Corporation gave the petitioners T.D.R.under clause 6 of Appendix VII of Regulation 34 for the area of road developed in that case. 6. It is the case of the petitioners that the petitioners surrendered and handed over to the Respondents, free of costs, said lands which were reserved for R.G.in due compliance with the provisions of the Regulations and opted to avail of T.D.R.in view thereof. The possession of the said lands alongwith structures was taken over by the Respondents on 09.12.1995 and two separate possession receipts were issued by the Respondents confirming the said fact. 6 Pursuant thereto, the Corporation issued D.R.C.’s restricted only to the F.S.I.of the said reserved land as per clause 5 of Appendix VII of Regulation 34 of the Regulations, details whereof are as under:- CTS No. Name of Village DRC No. Area of DRC (in Sq.mtrs.) Date of DRC 2B (part) and 3B Ghatkopar 000047 28347.30 2nd January, 1996 2B (part) Ghatkopar 000048 2710 2nd January, 1996 7. The work of construction/development of the amenity viz.R.G.on the reserved land was carried out by the petitioners in two phases. The first phase being the extensive cutting, filling, leveling, terracing, construction of decorative retaining walls, decorative compound walls, decorative grills, decorative gates, two aesthetically designed grand staircases terminating into viewing gallery, additional independent access routes to the hutments in the vicinity in the said reserved land, construction of storm water drains, construction of watchman cabin, side office, store room, store godown, generator room etc., to enable further construction and development of the said lands. Thereafter, permission /no objection was granted by the Respondents for further 7 development/ land scaping of the said lands as R.G. The said development interalia included construction/ development of bund walls, pitching, platforms, floor terraces, pathways, extensive plantations, gardening, landscaping, lawns, jogging track, lights, play area, viewing gallery, fountain, green house, nursery etc. All such work of construction and development was carried out by the petitioners in accordance with the plans approved by and the specifications issued by the Respondent and to the entire satisfaction of the Respondents. Pursuant thereto, completion certificate in the form of letter dated 27.05.1995 was issued by the Deputy City Engineer (Planning and Design) of the Respondents to M/s.Worthy Enterprise, the Architects of the petitioners. Petitioner No.2 also completed construction of storm water drains as is evident from the letter dated 20.10.1995 issued by the Respondents to the Architects of the petitioners. 8. By letter dated 14.12.1995 Superintendent of Gardens communicated to M/s.Worthy Enterprises, Architect of Petitioner No.1 their no objection for development/ land scaping of the said lands. This communication was in response to the application dated 07.12.1995 made by the Architect of the Petitioner No.1 8 seeking approval and no objection certificate of the Superintendent of Gardents for development/ land scaping recreation ground, as per the plan enclosed. 9. It is the case of the petitioners that Petitioner No.2 continued the construction / development / land scaping of the amenity viz.R.G., and in or about January, 1998 Petitioner No.2 completed the construction/development of the said R.G.on the said lands as per the requirements and specifications of the Respondents. The petitioners had incurred considerable expenses in the course of construction and development of the said R.G. Thus the petitioners opted to construct and develop the said amenity/ R.G.as per the specifications of the Respondents with the legitimate expectations of obtaining additional T.D.R.in lieu of such construction and development, in accordance with clause 6 of Appendix VII of Regulation 34. 10. After construction and development of the said lands into the amenity viz.R.G., Petitioner No.2 through his firm M/s.Mayfair Housing also undertook manitenance thereof and has been maintaining the same at the costs and expenses of the said firm, on and from the year 1998. The Petitioners enquired with the 9 Respondents regarding the grant of additional T.D.R.of 31057.30 sq,meters as per the provisions of clause 6 of Appendix VII of Regulation 34. However, the petitioners were informed by the Respondents that in view of Circular dated 09.04.1996, the owners of the surrendered land were not entitled to any T.D.R.in lieu of construction/development of the R.G. The Petitioners submitted two applications both dated 17.04.1998 to the Respondents calling upon them to issue additional T.D.R.to the petitioners. By letter dated 27.11.1998, Respondents informed that the proposal submitted by the petitioners for grant of additional T.D.R.in lieu of development of R.G., cannot be considered as per the prevailing policy in this respect. Since the petitioners had already filed Writ Petition No.845 of 1998 challenging the validity of the circular dated 09.04.1996, the petitioners did not challenge the letter dated 27.11.1998 once again by filing another petition. 11.During the pendency of the Writ Petition No.845/1998, Respondents issued another circular on 05.04.2003 thereby enhancing the T.D.R.entitlement in lieu of construction of amenity of D.P.Road from 15% to 25% available under the earlier 10 Circular dated 09.04.1996. The petitioners addressed a letter dated 03.11.2009 calling upon the Respondents to issue T.D.R.after setting out the entire facts and circumstances as also citing the judgment of the Apex Court in the case of Godrej & Boycee Co.Ltd. (supra). There was no response from the Respondents. The Respondents however published the notification dated 02.12.2009 inviting objections and suggestions regarding the proposed amendment to the provisions of Appendix VII of the Regulations. It is in these circumstances, the petitioners have instituted the present petition on 28.09.2010, praying for direction to the Respondents to forthwith grant D.R.C.of total area of 31057.30 sq.meters for the construction and development of amenity (R.G.) as set out in the petitioners applications dated 17.04.1998 (Exhibit ‘K’), 03.11.2009 (Exhibit ‘O’) and 23.07.2010 (Exhibit ‘Q’). 12.On behalf of the Respondents, Nilesh B.Futane, Assistant Engineer (D.P.) has made an affidavit. It is contended that the petition raises several disputed questions of facts, which cannot be gone into in the exercise of extra ordinary powers under Article 226 of the Constitution of India. Apart from this, the 11 petition also suffers from gross delay and latches, as the petition is filed after 12 years from the date of rejection of the petitioners request for additional T.D.R.i.e.on 27.11.1998 and on that count alone, the petition is liable to be dismissed. 13.It is further contended that the issues involved in this petition about the said R.G.can be explained in two stages i.e.(i) surrender of R.G.against T.D.R.and (ii) development & maintenance thereof under the agreement of care taker basis with M/s.Mayfair Housing. The said lands were reserved for R.G.in the sanctioned revised development plan of N & S Wards. M/s.Worthy Enterprises, Architects on behalf of Petitioner No.1, by their letter dated 14.07.1994 requested the Chief Engineer (D.P.) of the Corporation to take over the said lands reserved for R.G.in lieu of T.D.R., as per the Regulations and the Maharashtra Regional & Town Planning Act, 1966 (for short the ‘Act’). Alongwith the said letter the application form signed by Mr.P.D.Lam, Executive Vice President of Petitioner No.1, was submitted. Sr.No.17 of the said form required information to be furnished for construction upon the said lands as per the plans approved by the concerned authority as per clause 6 of Appendix VII and if so, details 12 thereof. Against serial No.17, on behalf of Petitioner No.1 it was set out that the question does not arise as the reservation is for R.G. This according to the affiant shows that the petitioners had not applied for additional T.D.R.under clause 6 of Appendix VII of Regulation 34. The petitioners intended to avail of T.D.R.only under clause 5 of Appendix VII of Regulation 34. 14.It is further asserted that the Architect of Petitioner No.1 submitted plan showing overall development of the R.G.reservation by way of cutting, filling, leveling, terracing as per clause 15 of Appendix VII of Regulation 34. By letter dated 05.04.1995, the Chief Engineer (Development Plan) informed Petitioner No.1 that they shall carry out the work as per the plans submitted by M/s.Worthy Enterprises under letter dated 24.11.1994. The letter dated 24.11.1994 addressed by M/s.Worthy Enterprises records that the Dy. Superintendent of Gardens visited the site alongwith Superintendent of Gardens. Pursuant to the suggestions made by the Garden Department, M/s.Worthy Enterprises prepared set of drawings incorporating the suggestions made by the Garden Department and requested to forward the proposal to the Chief Engineer (D.P.) with the 13 approval of the Superintendent of Gardens. The work of cutting, filling etc. is a condition precedent for obtaining the T.D.R.in lieu of surrender of land under reservation as per clause 15 of Appendix VII. 15.On 27.05.1995, Dy.City Engineer (Planning and Design) (Sub.) of the Corporation accepted the completion certificate submitted by M/s.Worthy Enterprises wherein it was set out that the work was found completed as per the amended plans approved by his department and as per the relocation approved by the Director (E.S.& P.) On 07.06.1995 M/s.Worthy Enterprises addressed a letter to the Superintendent of Gardens recording that the Petitioner No.1 had applied to the D.P.Department for handing over the lands under reservation to the Corporation free of costs against the grant of T.D.R. Request was made to intimate the Executive Engineer (D.P.) of the Department that the work of cutting, leveling, filling etc. is completed and that the work of development of Garden is under progress and that the Garden Department has no objection if the proposal of Petitioner No.1 for D.R.C./T.D.R., is processed further. 16.By letter dated 20.07.1995, the Chief Engineer (D.P.) called upon 14 the Petitioner No.1 to comply with the requirements more particularly set out therein before handing over the said lands to the Corporation and on complying with the requirements, necessary D.R.C.will be issued. Copy of the letter was also sent to M/s.Worthy Enterprises, Architects of the Petitioner No.1. Thereafter, possession of the said lands was taken over on 09.12.1995 and to that effect, two possession receipts were issued. On 20.12.1995 M/s.Worthy Enterprises addressed a letter to the Municipal Commissioner of the Corporation setting out the compliance for issuing the D.R.C.s to the owners only. 17.After due scrutiny two separate D.R.C.s viz.000047 & 000048 for 28347.30 sq.meters and 2710.00 sq.meters respectively were issued to Petitioner No.1 on 02.01.1996. This was in lieu of surrender of the said lands. While handing over the possession of R.G.and accepting the D.R.C.s, the petitioners never raised issue of grant of additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34. In fact, in the form dated 14.07.1994, in column No.17 it was specifically stated on behalf of Petitioner No.1 that the question of developing the reservation as per clause 6 of Appendix VII does not arise as the reservation is for R.G. This 15 clearly showed that while handing over possession of the R.G.and accepting D.R.C.s, issue of additional T.D.R.for construction/development was never raised by the petitioners, and the same was handed over by only doing the required work as per clause 15 of Appendix VII. 18.It is further contended that in so far as 2nd stage is concerned, by letter dated 20.11.1996 the Petitioner No.2, one of the partners of M/s.Mayfair Housing offered to develop and maintain the R.G.with suitable terms for a period of five years. M/s.Mayfair Housing is a separate legal entity and has no nexus with the Petitioner No.1. It was denied that M/s.Mayfair Housing carried out various civil work such as construction of compound wall, gates, messonary retaining wall etc. 19.The request made by M/s.Mayfair Housing for development and maintenance of R.G.for a period of five years on care taker basis was considered by the Respondents and by letter dated 23.01.1998, M/s.Mayfair Housing was allotted the said lands for development and maintenance on payment of normal lease amount of Re. 1 per annum and on terms and conditions set out therein. One of the terms and conditions was to the effect that no 16 T.D.R.will be given in lieu of the said lands. Allotment letter was accepted by M/s.Mayfair Housing and accordingly, an agreement was executed between the Corporation and M/s.Mayfair Housing for a period of five years commencing from 23.01.1998 to 22.01.2003. Under clause 9 of the said agreement, Petitioner No.2 had specifically agreed and accepted that M/s.Mayfair Housing shall not be entitled to any advantage including T.D.R.for development and maintenance of R.G.which is given on care taker basis. Clause 10 thereof further provided that whenever the Corporation decides to develop the R.G.as per Regulation 9 of Regulations by allowing construction of structures for ancillary uses such as Gymnasium, Club-House on 1/3 area of the entire plot, the same will be done by inviting bids as per the proposed guidelines, and M/s.Mayfair Housing will have to compete with other bidders and will not get any advantage on the ground that they are maintaining this R.G. 20.On 17.04.1998 a letter was addressed by Shri.Nayan Shah in the capacity of constituted attorney to Petitioner No.1 to the Chief Engineer (D.P.) for grant of additional T.D.R.for constructing the amenity on the lands under reservation as per clause 6 of 17 Appendix VII of Regulation 34 on the ground that they have developed the R.G.by carrying out various works set out therein. It was further asserted that the said work was not required in normal cases for grant of T.D.R.and therefore they be compensated by granting additional T.D.R.for development of the said lands under clause 6 of Appendix VII. 21.Affiant denied that any development work was carried out by the petitioners as alleged entitling them to additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34. The only work as required under clause 15 of Appendix VII of Regulation 34 was carried out while surrendering the said lands against the land T.D.R. This was also admitted while submitting the application on 14.07.1994 and in particular serial No.17 of the said form. Accordingly, on 27.11.1998, Deputy Chief Engineer (D.P.) (II) informed Petitioner No.2 that the proposal submitted for grant of additional T.D.R.in lieu of development of R.G.cannot be considered as per the prevailing policy in that respect. It is further contended that the lands reserved for R.G.are situate among the buildings constructed and developed by M/s.Mayfair Housing. The flat purchasers / occupiers are mainly beneficiaries of the said 18 R.G. The development and maintenance of the said R.G.has appreciated the value of the said buildings constructed by M/s.Mayfair Housing. It is for this reason M/s.Mayfair Housing came forward to carry out the work of development and maintenance of the R.G.on care taker basis. The Corporation did not impose any stipulation for development of the said R.G.except under Regulation 15 of Appendix VII of Regulation 34 for handing over R.G.in lieu of the land T.D.R. Subsequently on 04.01.2003 M/s.Mayfair Housing applied for renewal of the agreement for a further period of five years on same terms and conditions. Accordingly, fresh agreement was executed between M/s.Mayfair Housng and the Corporation for a further period from 23.01.2003 to 22.01.2008. The said agreement is signed by Mr.Nayan Shah on behalf of M/s.Mayfair Housing. Petitioner No. 2 addressed a letter dated 03.11.2009 as a constituted attorney to Petitioner No.1 requesting to process the applications for grant of additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34 to the extent of 31057.30 sq.meters on having constructed the amenity in accordance with the requirements and specifications of the Corporation. This was followed by another 19 application dated 23.07.2010. Since there was no response, the petitioners instituted present petition on 28th September 2010. 22.We have heard Mr.Aspi Chinoy, learned Senior Counsel in support of this petition and Mr.A.Y.Sakhare, learned Senior Counsel for the Corporation and its authorities in opposition. Mr.Chinoy submitted that in the present petition, there is no dispute about grant of T.D.R.on account of surrender of land reserved for R.G.in terms of clause 5 of Appendix VII of Regulation 34. What is in dispute is the entitlement of the petitioners for grant of additional T.D.R.in terms of clause 6 of Appendix VII. He submitted that when the owner or lessee also develops or constructs the amenity on the surrendered plot at his costs subject to the 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 appropriate authority, free of costs, he is entitled to grant of a further D.R.in the form of F.S.I.equivalent to the area of construction/ development done by him in terms of clause 6 of Appendix VII of Regulation 34. He invited our attention to the correspondence exchanged between the parties 20 and submissions made by the officers of the Corporation to their superior officer, which are annexed to the petition as also to the affidavits filed by the petitioners and the Corporation to substantiate that the petitioner No.1, in fact, carried out development/ construction on the said lands surrendered by incurring huge expenditure. The development was carried out as per the stipulations prescribed by the Respondents and consequently, the petitioners are entitled to the additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34. 23.On the other hand, Mr.Sakhare strenuously contended that none of the petitioners has carried out development/ construction on the said lands reserved for R.G.after surrendering the said lands to the Corporation. All the work that was carried out was in terms of clause 15 of Appendix VII of Regulation 34. For surrender of lands under reservation the work so carried out was inspected by the Deputy City Engineer (Planning & Design) (Sub.) on 23.05.1995 and the work was found completed as per the amended plans approved by his department and as per the relocation approved by the Directors (E.S.& P.) alongwith the required cutting, filling etc. The completion certificate submitted 21 by M/s.Worthy Enterprises was accepted on 27.05.1995. However, the petitioners never submitted any application claiming additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34. He submitted that the petitioners have not developed or constructed amenity on the surrendered plot, subject to the stipulations that could be prescribed by the Commissioner or the appropriate authority. Consequently, the petitioners cannot claim to have handed over the said developed / constructed amenity to the satisfaction of the Commissioner/ appropriate authority. He submitted that the appropriate authority in so far as the Garden Department is concerned, is the Deputy Municipal Commissioner. He further submitted that at any rate the petition raises several disputed questions of facts as also suffers from gross delay and latches. He therefore submitted that the petition deserves to be dismissed. 24.We have considered the rival submissions made by learned counsel appearing for the parties. The short question is whether the petitioners are entitled to additional T.D.R.in terms of clause 6 of Appendix VII of Regulation 34 of the Regulations. Clauses 5, 6 & 7 of Appendix VII of Regulation 34 are relevant for deciding 22 the controversy and the