Municipal Corp.Of Greater Bombay & Anr vs Yeshwant Jagannath Vaity & Ors

4. The respondents herein owned 10,000 sq. yards of land in Mulund village. A development plan was sanctioned for Greater Bombay in the year 1957. Mulund comes within the area of Greater Bombay. The said land was shown as reserved for public purpose of construction of a godown. Ordinarily, such land is acquired under the provisions of Land Acquisition Act, 1894. However, the respondents and the four other co-owners entered into a private agreement to hand over possession of 10,000 sq. yards to the MCGB for the temporary use as a truck terminal. The land was also to be used as a town duty office. The possession was handed over on 18.9.1961. An agreement was entered into between the respondents and the other co-owners with the MCGB wherein it was agreed that the respondents and the other co-owners would receive compensation of Rs.90,000/-. The land, though, was given in possession much earlier and there was an agreement dated 16.12.1967, it was not put to any use much less for the public purpose for which it was intended to be acquired. The land was not put to any other use also right till November, 1998. Hence, the respondents filed a writ petition No.3437 of 1988 inter alia praying therein for a declaration that the land was not liable to be acquired. The writ petitioners demanded back the possession of 10,000 sq. yards. There was a compromise effected in this writ petition by order dated 10.3.1992 between the parties. Under the same, the MCGB agreed to acquire and retain the area of 3500 sq. metres for the purpose of establishing and constructing an export octroi office. The consent terms provided that appellant Nos.1 and 2, namely, MCGB and its Chief Engineer would hand over the remaining area to the respondents herein and the respondents herein would refund the amount of Rs.90,000/- with interest therein @ 10 % per annum from the date of payment till the date of re-payment to the MCGB. It was further provided in the consent terms that the respondents herein would be entitled to TDR to the extent provided in the Regulations in respect of 3500 sq. metres in lieu of the payment of Rs.90,000/- with interest. It was further provided in the consent terms that the MCGB would grant TDR in lieu of the said land measuring 3500 sq. metres subject to the compliance of various requirements by the petitioners as required under Regulation 34, Appendix VII of the Regulations. It was specifically provided by Clause 9 of the consent terms that if the petitioners constructed and developed export office for the MCGB on the aforementioned area of 3500 sq. metres and handed over the premises to the MCGB free of cost, the respondents would be entitled to the benefit of additional transferable development rights as per Regulation 6 of Appendix VII. The precise wordings of Clause 9 to the consent terms are as under:

5. A letter was addressed by the Constituted Attorney of the respondents dated 18.4.1992 calling for a joint survey and demarcation and the engineer of the MCGB was requested to inform the details and specifications of the work which the present respondents would have to carry on to claim the TDR as per paragraph 4 of the consent terms and the additional TDR as per paragraph 9 of the consent order quoted above. The respondents were informed on 25.4.1992 that they would have to carry out the work of leveling the plots, construction of compound wall on three sides with gates, development of yard with asphalting and the construction of an export office building as per the specifications submitted by the Deputy C.E.(P & D)/ Municipal Architect by his communication dated 20.9.1991. The Constituted Attorney was directed to approach the concerned authority.

On 25.5.1992, the Architect of the respondents made an application to the MCGB for grant of TDR in respect of 3500 sq. metres of area already surrendered by the respondents to appellant No.1. The petitioners also paid the sum of Rs.3 lakh 15 thousand (principal amount of Rs.90,000/- and the interest @ 10 % per annum) from the date of payment till the date of re-payment as agreed to in the consent terms. On 22.01.1993, the respondents addressed a letter to the Assessor and Collector asking for further details relating to the work to be carried out on the said 3500 sq. metres of land. On 5.3.1993 the Assessor and Collector of the appellant No. 1 herein addressed a letter to the respondents herein enclosing a sketch plan of for the proposed export office together with development of yard. It was informed in the said letter that as per the directions of the Municipal Commissioner, additional TDR in lieu of the development of export yard and construction of office would be granted to the respondents. The respondents were also requested to expedite the work of construction of export office.

On 9.2.1994, it was informed by a letter that the respondents' right to grant development certificate would be considered after they commence the work of construction of the export office. Further on 22.2.1995, the Chief Engineer addressed a consent letter to the respondents certifying his no objection for constructing the export office building subject to the terms and conditions mentioned in the said letter. Condition Nos. 1 and 4 in the said letter are relevant for the issued involved. They are as under:-

6. The petitioners constructed the export office and also developed the surrounding area. The possession of the export office and the courtyard was handed over to the the MCGB for which a possession receipt was also issued. Possession receipt mentioned the details of the constructed amenity as under:-

7. An application was made by the respondents' Architect for DRC. On 19.1.1999, DRC for TDR in respect of export office being 491.16 sq. metres equivalent of the 100 per cent of the built up area of the export office was granted. However, insofar as the additional transferable rights in lieu of the development of the export courtyard surrounding the export office was concerned, the same was restricted to 466.96 sq. metres being 15 per cent of the built up area of the courtyard. This was the first flash point. On 7.3.2000, the petitioners by their letter claimed that they were entitled to the additional transferable rights to the extent of 3113 sq. metres as against the development of the courtyard of export office on which they had done the asphalting work. On 27.6.2000, the Chief Engineer refused to grant further additional TDR contending therein that the TDR issued was in accordance with the BMC policy. Once again, a demand was made by communication dated 6.7.2000 for the balance area and also requested the MCGB for the particulars of the alleged policy. It was informed herein that there was a circular dated 9.12.1996 which formulated the policy. The respondents were invited for discussion. A contempt application was also filed by the respondents being Contempt Petition No.116 of 2000, contending therein that the consent order dated 10.3.1992 was violated. The said contempt petition was dismissed holding that there was no willful disobedience. On 23.12.2003, the respondents again addressed a letter to the MCGB calling them upon to grant further DRC for the remaining 85 per cent of the area of the courtyard and since the demand was not met, the writ petition came to be filed.

23. No other point was urged before us.

24. We are, therefore, of the clear opinion that the High Court was right in allowing the writ petition and granting 100% TDR as against the development of courtyard by asphalting the same. We find no merits in the appeal. The appeal is, therefore, dismissed. No costs.

March 17, 2011.