GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED THROUGH ITS CONSTITUTED ATTORNEY & ANR. versus THE MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS
[2023] 6 S.C.R. 56, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Body
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SUPREME COURT REPORTS
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GODREJ AND BOYCE MANUFACTURING COMPANY
LIMITED THROUGH ITS CONSTITUTED ATTORNEY & ANR.
v.
THE MUNICIPAL CORPORATION OF GREATER MUMBAI &
ORS.
(Civil Appeal No. 9021 of 2014)
MAY 08, 2023
[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]
Maharashtra Regional and Town Planning Act, 1966 : s. 126
– Acquisition of land required for public purposes specified in the
plan – Appellant was the owner of the plot in second Development
Plan for Greater Mumbai, reserved for the purpose of ‘Recreation
Ground’– Application by the appellant no. 1 to surrender land
reserved for recreation purpose and for the grant of Development
Rights Certificate-DRC – Intention to develop the land sought to be
surrendered expressed – Proposal accepted, appellant undertook
the development work and handed over the possession of the land
– DRC issued to appellant no. 1, however, no additional TDR issued
– Claim for the grant of Additional TDR by the appellant, rejected
by corporation on the basis of circular dated 09/04/1996 which
restricted the grant of additional TDR in certain circumstances –
Since the circular was under challenge before this Court, appellant
no. 1 awaited the outcome – Later on, the said circular set aside by
this Court in 2009 in Godrej and Boyce Manufacturing Company
Limited’s case, case of the appellant no. 1 but in respect of some
other property – Another request made for grant of Additional TDR
in Nov 2009, which was declined in Aug
2010 – Writ petition
thereagainst, dismissed by the High Court, on the ground that there
was abandonment of claim by the appellants – On appeal, held:
Law of abandonment was based upon the maxim invito beneficium
non datur which meant that the law conferred upon a man no rights
or benefits which he does not desire – However, during the period
from 1996 to 2009, the right to claim additional TDR was in
suspended form making the appellant to necessarily wait till it was
decided – It is clearly unjustified and unacceptable to say that the
wait of the appellants during this period could tantamount to
abandonment – As regards, the grant of Additional TDR, all activities
[2023] 6 S.C.R. 56
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undertaken by appellant No.1 through their Architects till the handing
over of possession of the land were not towards the development of
amenity and for the grant of Additional TDR – All those works were
undertaken as part of the effort to make the Corporation accept
the surrender of land and to grant TDR – Thus, the High Court was
right in recording a finding of fact that the appellants did not develop
the amenity so as to be entitled to additional TDR – Finding of fact
made by the High Court in this regard is upheld – Development
Control Regulations for Greater Mumbai, 1991 – Reg. 34.
Words and Phrases: “Amenity” and “development” – Meaning
of, in the context of the Maharashtra Regional and Town Planning
Act, 1966.
Dismissing the appeal, the Court
HELD: 1.1. The law of abandonment is based upon the
maxim invito beneficium non datur. It means that the law confers
upon a man no rights or benefits which he does not desire. [Para
15][69-B]
1.2 What was cited by the Municipal Corporation in their
order of rejection dated 27.11.1998 as an impediment for the grant
of additional TDR was the subject matter of challenge in the first
round. It was made by the very appellant No.1, though in respect
of another property. If the said decision in the first round had
gone against appellant No.1, the rejection of the claim of the
appellants for additional TDR on the basis of “prevailing policy”
would have become final and unquestionable. [Para 17][69-F-G]
1.3 During the
period from 1996 to 2009, the right to claim
additional TDR was in suspended animation. Thus, the appellants
had to necessarily wait till the cloud over their right got cleared.
To say that the wait of the appellants during the period of this
cloudy weather, tantamount to abandonment, is clearly unjustified
and unacceptable. Therefore, the finding recorded by the High
Court that there was abandonment of claim by the appellants, is
not in tune with the law or the facts of the instant case and thus,
is answered in favour of the appellants. [Para 18][69-G-H; 70-A-
B]
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI
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2.1 The word “amenity” as defined in s. 2(2) means several
things including “recreation ground.” The word “development”
includes under Section 2(7), mining or other operations in or over
the land or the making of any material change in any building or
land and reclamation, redevelopment and layout and sub-division
of any land. [Para 38][76-D-E]
2.2 To be precise, all activities undertaken by appellant
No.1 through their Architects till the handing over of possession
of the land were not towards the development of amenity and for
the grant of Additional TDR. All those works were undertaken
as part of the effort to make the Corporation accept the surrender
of land and to grant TDR. [Para 41][83-B-C]
2.3 It is only after the entry of Mayfair Housing, (of which
appellant no.2 is a partner) into the picture, first with a letter of
request dated 20.11.1996 to the Corporation to develop and
maintain the Recreation Ground and then with the execution of
the Power of Attorney by appellant No.1 on 24.12.1996 that the
idea of developing an amenity and seeking additional TDR had
cropped up. But unfortunately, the Corporation made it clear to
Mayfair Housing represented by appellant No.2 that he would
not be entitled to Additional TDR, for the development of
Recreation Ground. In the letter dated 23.01.1998 it was made
clear to Mayfair Housing that no TDR would be given to them.
[Para 42][83-C-E]
2.4 When Mayfair Housing sent a
letter dated 20.11.1996
to the Corporation seeking permission to develop and maintain
the RG, they had nothing to do with the surrendered land.
Therefore, they were not entitled either to TDR or to additional
TDR. Realising this difficulty, they appear to have got 2 deeds of
PoA from appellant No.1 so as to piggy ride on appellant No.1. In
fact, the first PoA was redundant since by the time it was executed,
appellant No.1 had already obtained DRC for TDR. Yet, the first
PoA was towards TDR and the second PoA was for additional
TDR. [Para 43][83-E-F]
2.5 Even an independent analysis of the correspondence
between the parties show that no amenity was developed as
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required by law, by appellant No.1, to be entitled to Additional
TDR. [Para 44][83-G]
2.6 Drawing the attention to the photographs of the
Recreation Ground as it exists, it was submitted by the counsel
for the appellants that what was once a barren land, could not
have become what it is but for the activities undertaken by the
appellants. Therefore, his submission was that if this is not
construed as development of amenity, nothing else can be
construed so. [Para 45][84-A-B]
2.7 Unfortunately for the appellants, whatever they had done
through their Architects up to the date of handing over possession
and getting the DRC, was not projected by them as the
development of amenity. If all those activities up to the date of
handing over possession constituted development of amenity,
there was no necessity for appellant No.1 to give PoA to appellant
No.2 to undertake the activity of development of amenity and to
seek Additional TDR. If the work of development of amenity and
the lodging of a claim for additional TDR had been undertaken
only after Mayfair Housing entered into the picture, then the
appellants became bound by the condition laid down by the
Corporation that appellant No.2 will not be entitled to Additional
TDR. The High Court was right in recording a finding of fact that
the appellants did not develop the amenity so as to be entitled to
additional TDR. Once the finding of fact made by the High Court
in this regard is upheld, the appeal should
automatically meet
with the fate that it deserves. [Para 46, 47][84-B-D; E]
Godrej and Boyce Manufacturing Company Limited v.
State of Maharashtra and Others (2009) 5 SCC 24 :
[2009] 1 SCR 1016; P. Dasa Muni Reddy v. P. Appa
Rao (1974) 2 SCC 725 : [1975] 2 SCR 32 – referred
to.
Case Law Reference
[1975] 2 SCR 32
referred to
Para 15
[2009] 1 SCR 1016
referred to
Para 16
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.9021 Of
2014.
From the Judgment and Order dated 08.08.2011 of the High Court
of Bombay in WP No. 2058 of 2010.
P. Chidambram, Pravin Samdhani, Sr. Advs., Pramod
B. Agarwala, Anirudh Joshi, Nivit Srivastava, Nell Mandevia, Kunal
Vajani, Aayush Agarwala, Shubhang Tandon, Advs. for the Appellants.
Atmaram N. S. Nadkarni, Sr. Adv., S. Sukumaran, Anand Sukumar,
Bhupesh Kumar Pathak, Ms. Meera Mathur, S. S. Rebello, Ms. Deepti
Arya, Ms. Arzu Paul, Ms. Manisha Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Aggrieved by the dismissal of their claim by the Bombay High
Court, for the grant of Development Rights Certificate1 for a total area
of 31,057.30 sq.metres, for the construction and development of the
amenity namely “Recreation Ground”, the writ petitioner before the
Bombay High Court has come up with this appeal.
2. We have heard Shri P. Chidambaram, learned senior counsel
for the appellants and Shri Atmaram N.S. Nadkarni, learned senior
counsel appearing for the respondents.
3. The background facts leading to the appeal on hand are as
follows:-
(i) The second Development Plan (DP 1991) for Greater Mumbai
was prepared for the period 1981-2001 and the same was sanctioned in
parts between 1991 and 1994. In the said DP, the plots of land bearing
CTS No.2B (part) falling in N-Ward & CTS Nos. 2B (part) and 3B
falling in S-Ward
were reserved for the purpose of “Recreation
Ground”;
(ii) The aforesaid plot of land was admittedly owned by appellant
No.1 herein. Appellant No.2 herein is the duly constituted attorney of
appellant No.1 in respect of the said property;
(iii) Under Maharashtra Act 10 of 1994, clauses (a), (b) and (c)
were inserted under sub-section (1) of Section 126 of the Maharashtra
1 For short “DRC”
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Regional and Town Planning Act, 1966 (hereinafter called “the Act”),
by way of substitution. These clauses were inserted with effect from
25.03.1991;
(iv) Section 126 (1) conferred power upon the Planning Authority/
Development Authority, to acquire any land required or reserved for any
of the public purposes specified in any plan or scheme, after the
publication of a Draft Regional Plan2 or a DP or Town Planning Scheme3.
The newly inserted clauses (a), (b) and (c) in sub-section (1) provided 3
different methods of such acquisition. One method of acquisition was by
way of an agreement upon payment of an agreed amount. The second
method of acquisition was by granting, in lieu of any compensation, Floor
Space Index4 or Transferable Development Rights5 against the area of
land surrendered free of cost and also further additional FSI or TDR
against the development or construction of the amenity on the surrendered
land. The third method of acquisition was through the initiation of
proceedings under the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(v) Vide letter dated 14.07.1994, appellant No.1 through their
Architects, “Worthy Enterprises” made an application for surrendering
land of the extent of 31,057.58 sq.metres (two plots) which was reserved
under the DP for the purpose of “Recreation Ground”. An application
for the grant of DRC was enclosed to the said letter;
(vi) It is relevant to mention
at this stage that the TDR to be
granted in lieu of compensation for acquisition of land, as contemplated
in clause (b) of sub-section (1) of Section 126 comprised of two
components namely, (i) TDR equal to the area of land surrendered; and
(ii) additional TDR against the development or construction of the amenity
on the surrendered land at the cost of the owner;
(vii) Vide another letter dated 08.10.1994, the Architect of appellant
No.1 wrote a letter to the Municipal Corporation, expressing their intention
to develop the land sought to be surrendered;
(viii) By another letter dated 24.11.1994, the Architect of appellant
No.1 forwarded to the Superintendent of Gardens, a set of drawings for
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
2 For short “DRP”
3  For short “TPS”
4  For short “FSI”
5  For short “TDR”
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the development of the land, after incorporating the suggestions made
by the Department pursuant to the visit made by the Deputy
Superintendent of Gardens;
(ix) Vide letter dated 03.12.1994 the Superintendent of Gardens
forwarded to the Assistant Engineer, the appellants’ proposal;
(x) By a letter of intent dated 05.04.1995, issued by the Chief
Engineer (Development Plan), appellant No.1 was informed that their
request for the grant of DRC will be considered after the requirements
mentioned therein were complied with. One of the conditions indicated
in the said letter dated 05.04.1995 was that the appellant had to deposit
a sum of Rs.3,50,000/- as security for the faithful compliance of the
requirements mentioned in the letter;
(xi) Appellant No.1, through their Architects, undertook the
development work. Site inspection was also carried out by the officials
of the Municipal Corporation. Eventually the Deputy Chief Engineer
(Planning and Design), issued a letter dated 27.05.1995 certifying the
completion of the development work undertaken by the appellant No.1.
This letter was issued after making a site inspection on 23.05.1995;
(xii) By a subsequent letter dated 20.07.1995, the Chief Engineer
informed appellant No.1 that they have to complete Storm Water Drains
and that thereafter, the DRC will be issued. Accordingly, the appellant
No.1 undertook the construction of Storm Water Drains;
(xiii) Thereafter, the Executive
Engineer issued a communication
dated 20.10.1995 certifying that the drains have been constructed
satisfactorily;
(xiv) As a matter of fact, the Architects of appellant No.1 had a
temporary site office and godown on the plot reserved for “Recreation
Ground”. This was, as per the letter dated 28.09.1995 of the Architects,
for the purpose of developing the additional amenity and for landscaping
of Recreation Ground. Therefore, in a couple of communications, the
Architects of the appellant No.1 offered to remove the same, once the
work was completed. Appellant No.1 even deposited a sum of Rs.25,000/
- for the retention of the temporary structure, to store materials required
for the development;
(xv) When appellant No.1 was developing the amenity, the local
people wanted access and, hence, the Deputy Chief Engineer requested
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through his note dated 30.11.1995, orders of the Chief Engineer on two
things, namely, (i) access to the local people; and (ii) permission to take
over possession of the developed land;
(xvi) Simultaneously, appellant No.1 handed over formal possession
of the land on 09.12.1995;
(xvii) On 14.12.1995, the respondents granted NOC to appellant
No.1 in terms of the proposal dated 07.12.1995. A further scrutiny report
dated 28.12.1995 acknowledged that the “Recreation Ground” was
being developed in terms of the approval granted on 14.12.1995;
(xviii) While things stood thus, the Municipal Corporation issued a
Circular dated 09.04.1996, restricting the grant of additional TDR in
respect of amenities such as “Recreation Ground”, only for the
structures allowed to be constructed within the reservations, to the extent
of built-up area of such structures subject to a maximum of 15% area of
the reservations. This Circular and another Circular dated 05.04.2003
became the subject matter of challenge, which resulted in this Court
delivering a Judgment reported in Godrej and Boyce Manufacturing
Company Limited vs. State of Maharashtra and Others.6;
(xix) During the pendency of the above proceedings, appellant
No.1 constituted appellant No.2 as their Power of Attorney7 in respect
of the amenity TDR (Additional TDR) under a Deed dated 24.12.1996;
(xx) Claiming to have completed the development of the amenity,
the appellants applied on 17.04.1998 for the grant of Additional
TDR
(also known as “Amenity TDR”);
(xxi) But by a reply dated 27.11.1998, the Corporation declined to
consider the request for additional TDR on the ground of prevailing policy
(namely, the Circular dated 09.04.1996);
(xxii) Since the Circular was under challenge before this Court,
appellant No.1 awaited the outcome of the challenge;
(xxiii) Therefore, after the circular was set aside by this Court in
the decision in Godrej and Boyce Manufacturing Company Limited
(supra), the appellant made one more request for the grant of Additional
TDR by a letter dated 03.11.2009. But the same was turned down by
the Municipal Corporation by an order dated 17.08.2010;
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
6  (2009) 5 SCC 24
7  For short “PoA”
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(xxiv) Aggrieved by the said response, the appellants filed a writ
petition in WP No.2058 of 2010. This writ petition was dismissed by the
High Court of Judicature at Bombay by an order dated 08.08.2011. It is
against the said order that the appellants have come up with the above
appeal.
4. While rejecting the claim of the appellants, the High Court
recorded the following findings:
(i) that a claim for Additional TDR generally arises in terms of
clause 6 of Appendix VII of Regulation 34 of the Development Control
Regulations for Greater Mumbai, 19918;
(ii) that the entire correspondence exchanged between the
appellants and the respondents from 14.07.1994 till the year 1998 does
not disclose that the appellants intended to avail additional TDR in terms
of clause 6;
(iii) that if there was any such intention, the owner ought to have
approached the Commissioner or the Appropriate Authority in terms of
clause 6 of Appendix VII;
(iv) that the Superintendent of Gardens was not the appropriate
authority in respect of the Garden Department;
(v) that what was claimed by appellant No.1 and their Architects
was only TDR as per clause 5 and not additional TDR under clause 6 of
Appendix VII of Regulation 34;
(vi) that the appellants accepted DRC dated 02.01.1996 without
any protest;
(vii) that the appellants have failed to establish that they carried
out any development;
(viii) that the agreement executed between M/s Mayfair
Housing
and the Corporation shows that the appellants merely surrendered the
land and claimed TDR in terms of clause 5 but did not carry out any
development in terms of clause 6;
(ix) that while surrendering the land and claiming TDR in terms
of clause 5, appellant No.1 submitted a proposal enclosing Form No.2625;
8  For short “the Regulations”
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(x) that at Serial No.17 of the said printed form, the owners were
called upon to inform whether the reservation is proposed to be built as
per the plans approved by the concerned authority as per clause 6;
(xi) that the answer of appellant No.1 to the question at serial
No.17 was that the question does not arise as the reservation was for
“Recreation Ground”;
(xii) that before claiming additional TDR in terms of clause 6,
neither appellant No.1 nor appellant No.2 filled in the printed Form;
(xiii) that under clause 6, the amenity has to be developed as per
the stipulations prescribed by the Commissioner or the appropriate
authority, but in this case, these authorities did not prescribe any
stipulations, since the appellants did not submit any printed Form for
additional TDR;
(xiv) that appellant No.2 is not the owner or lessee of the land
and hence when appellant No.2 made a request for the development/
maintenance of the land, the request was granted on condition that
appellant No.2 will not claim any TDR; and
(xv) that in any case the appellants should be deemed to have
abandoned their claim for additional TDR, in view of the fact that they
came up with the writ petition only in the year 2010 challenging the
rejection of the request for additional TDR made in the year 1998 and
that, therefore, the writ petition deserves to be dismissed.
5. Assailing the impugned order of the High Court, it is contended
by Shri P. Chidambaram, learned senior counsel:
(i)
that TDR/Additional TDR, constitute compensation in kind for
the acquisition of the land and the development of the amenity and hence
the denial of the same will be an infringement of the right to property
guaranteed under Article 300A of the Constitution;
(ii) that there is no dispute that the appellants developed the
“Recreation Ground,” in terms of the plan approved by the
Superintendent of Gardens;
(iii) that the High Court overlooked the approval granted by the
Municipal Commissioner which was available on record and hence the
finding that the appropriate authority did not grant approval is factually
incorrect;
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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(iv) that in terms of Regulation 6, the amenity is required to be
developed “on the surrendered plot” and the vesting in favour of the
Corporation takes place only after the development of the amenity in
terms of Section 126(1)(b);
(v) that the stand taken by the Corporation before the High Court
that the appellant did not develop the amenity, was an afterthought;
(vi) that the request for Additional TDR made by the appellants
on 17.04.1998 was rejected by the Corporation by a communication
dated 27.11.1998, not on the ground that the appellants did not develop
the amenity, but on the sole ground that the prevailing policy did not
permit the grant of additional TDR;
(vii) that the inference drawn by the High Court that there was
abandonment of right by the appellant, on account of the delay in
approaching the High Court, was totally perverse:
(viii) that the High Court failed to appreciate that the delay was
due to the necessity for the appellant to await the outcome of their
challenge to the “prevailing policy” and that, therefore, the impugned
order is liable to be set aside.
6. Defending the action of the respondents and the impugned order
of the High Court, it is contended by Shri Atmaram N.S. Nadkarni, learned
senior counsel:-
(i) that after going through the entire correspondence between
the parties, the High Court has recorded findings of fact on various
aspects such as the appellants not undertaking the
development of any
amenity, the appellants not making any claim for Additional TDR and
the lack of approval on the part of the appropriate authority for the
development of any amenity;
(ii) that these findings of fact do not warrant any interference
under Article 136 of the Constitution;
(iii) that the rejection of the request for additional TDR, made on
27.11.1998 was challenged by the appellants only after 12 years and
hence the High Court was justified in drawing an inference about the
abandonment of claim;
(iv) that after the surrender and transfer of the land in favour of
the Corporation and the grant of TDR, the appellants ceased to be owners
and hence they were not entitled to claim additional TDR;
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(v) that the claim for Additional TDR should be made
simultaneously with the claim for TDR, but the appellants failed to do
so;
(vi) that the appellants made a claim for Additional TDR only in
1998 after surrendering and transferring the land in the year 1995;
(vii) that in any case, the development of amenities had to be
carried out as per the stipulations made by the competent authority; and
(viii) that the activities of cutting, leveling, filling, terracing and
landscaping cannot be treated as the development of amenity and that
therefore the action of the respondents and the order of the High Court
were perfectly in order.
7. We have carefully considered the rival contentions.
8. From the rival contentions, it appears to us that the following
two questions arise for our consideration:
(I)
Whether the High Court was right in concluding that there
was abandonment of claim by the appellants? ; and
(II)
Whether the finding of fact arrived at by the High Court
that the appellants did not and could not have developed
the amenity, calls for any interference, especially in the light
of the statutory provisions and the facts that unfold from
the correspondence exchanged between the parties?
Question No.I: Whether the High Court was right in
concluding that there was abandonment of claim by the
appellants?
9. It is true that the claim made by the appellants for the grant of
additional TDR vide their application dated 17.04.1998 was rejected by
the Corporation,
by a communication dated 27.11.1998 and that the same
was challenged by the appellants by way of a writ petition filed after 12
years in September-2010. The High Court held that this delay of 12
years in challenging the action of the respondents tantamount to
abandonment of claim.
10. Let us now see whether the inference of abandonment is
factually made out and legally sustainable.
11. The order of rejection dated 27.11.1998 is a cryptic order
which reads as follows:
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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[2023] 6 S.C.R.
“This is to inform you that, the proposal submitted by you for
grant of additional T.D.R in lieu of development of Recreation
Ground on the land bearing CTS No.2/B(pt), 3(B) of Village
Ghatkopar cannot be considered, as per the prevailing policy
in this respect.”
12. Obviously the expression “prevailing policy,” mentioned in
the aforesaid communication, was the Circular dated 09.04.1996. The
said circular dated 09.04.1996 dealt with several issues, one of which
related to Additional TDR for open space amenities. The relevant portion
of the Circular dated 09.04.1996 reads as follows:
“2. OPEN SPACE AMENITIES LIKE GARDEN,
PLAYGROUND R.G., PARKING, OPEN SPACES &
BURIAL GROUND
i) The application for additional Development Right in respect of
the above mentioned amenities will be considered only for the
structures allowed to be constructed within the reservations as
per the provisions of D.C.R. No. 23(g) to the extent of built-up
area of such structures, subject to maximum of 15% area of the
reservations.
ii) No additional Development Right will be granted for execution
of the items such as leveling, construction of compound wall,
retaining wall, providing compound gate providing layer of red-
earth, landscaping & drainage arrangements etc.
iii) Procedure & terms and conditions for considering grant of
additional Development Rights for such structures will be the same
as per Item No.1 above.”
13. In fact, the above circular
dated 09.04.1996, gave rise to a
dispute between appellant No.1 herein and a few others on the one hand
and the Corporation on the other hand. That dispute which related to
some other property, ultimately landed up before this court in the form of
a couple of civil appeals and a writ petition. The dispute got resolved
through the decision of this court in Godrej and Boyce Manufacturing
Company Limited (supra). The said decision was rendered on
06.02.2009.
14. Therefore, taking advantage of the said decision, appellant
No.2 applied once again for the grant of Additional TDR, on 03.11.2009.
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The same was rejected once again by a communication dated 17.08.2010.
This rejection triggered the present proceedings in the year 2010. It is in
the light of this chain of events that we have to see whether there was
any delay on the part of the appellants and whether such delay could
lead to an inference of abandonment of claim.
15. The law of abandonment is based upon the maxim invito
beneficium non datur. It means that the law confers upon a man
no rights or benefits which he does not desire. In P. Dasa Muni
Reddy vs. P. Appa Rao9, this Court held that “abandonment of right
is much more than mere waiver, acquiescence or laches…. Waiver is
an intentional relinquishment of a known right or advantage,
benefit, claim or privilege….”. In paragraph 13 of the said decision,
this Court put the law pithily in the following words:
“13…. There can be no waiver of a non-existent right.
Similarly, one cannot waive that which is not one’s as a right
at the time of waiver. ...”
16. Irrespective of whether the respondents concede or not, the
Circular dated 09.04.1996 curtailed the rights of the owners to have
additional TDR in certain circumstances. The Circular came under
challenge before this Court and the decision of this Court in Godrej and
Boyce Manufacturing Company Limited was delivered on 06.02.2009.
As we have stated earlier, the decision in Godrej and Boyce
Manufacturing Company Limited was in the case of the very appellant
No.1 herein though in respect of
some other property.
17. To put it differently, what was cited by the Municipal
Corporation in their order of rejection dated 27.11.1998 as an impediment
for the grant of additional TDR was the subject matter of challenge in
the first round. It was made by the very appellant No.1 herein, though in
respect of another property. If the said decision in the first round had
gone against appellant No.1 herein, the rejection of the claim of the
appellants for additional TDR on the basis of “prevailing policy” would
have become final and unquestionable.
18. In other words, during the period from 1996 to 2009, the right
to claim additional TDR was in suspended animation. Therefore, the
appellants had to necessarily wait till the cloud over their right got cleared.
To say that the wait of the appellants during the period of this cloudy
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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weather, tantamount to abandonment, is clearly unjustified and
unacceptable. Therefore, the finding recorded by the High Court on
question No.1 is not in tune with the law or the facts of the present case
and hence question No.1 has to be answered in favour of the appellants
herein.
Question No.II: Whether the finding of fact arrived at by
the High Court that the appellants did not and could not
have developed the amenity, calls for any interference,
especially in the light of the statutory provisions and the
facts that unfold from the correspondence exchanged
between the parties?
19. The answer to question No.2 revolves both around factual
aspects and around certain statutory provisions. Let us first take note of
the statutory provisions, out of which the right to claim additional TDR
arose.
20. Section 126(1) of the Act reads as follows:
“126.
Acquisition of land required for public purposes
specified in plans
(1) When 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, except as otherwise provided in section
113A acquire the land,—
(a) by 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 Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, Floor Space Index (FSI) or
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Transferable Development Rights (TDR) against the area
of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space Index
or Transferable Development Rights against 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 in application to the State Government for
acquiring such land under the provisions of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013,
and the land (together with the amenity, if any, so
developed or constructed) so acquired by agreement or by grant
of Floor Space Index or additional Floor Space Index or
Transferable Development Rights under this section or under
the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, as the case may be, shall vest
absolutely free from all encumbrances in the Planning Authority,
Development Authority, or as the case may be, any Appropriate
Authority.”
21. As we have noted earlier, clauses (a), (b) and (c) were inserted
by way of substitution in sub-section (1) of Section 126 under
Maharashtra Act 10 of 1994 with effect from 25.03.1991.
22. As per Section 126(1), whenever the Planning Authority or
Development Authority finds after the publication of a draft Regional
Plan or a Development Plan that any land
is required or reserved for
any of the public purposes mentioned in the plan, such authority may
acquire the land for the said public purpose. This acquisition can be
made by three different methods, indicated in clauses (a), (b) and (c).
The methods of acquisition prescribed in clauses (a), (b) and (c) of sub-
section (1) of Section 126, in simple terms are as follows:-
(i) The acquisition may be through an agreement entered into
with the owner, by paying an amount agreed to;
(ii) Alternatively, the acquisition may be by the grant of FSI or
TDR in lieu of any payment, along with Additional FSI or Additional
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
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TDR against the development or construction of the amenity on the
surrendered land at the cost of the owner; or
(iii) The acquisition may also be by requesting the State
Government to initiate the process of land acquisition under the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.
23. We are concerned in this case with the second method of
acquisition of land indicated in clause (b) of sub-section (1) of Section
126. Under this clause, the owner and the planning authority are granted
the leverage to agree that the compensation for the acquisition of the
land will be for a consideration, not paid in the form of cash but granted
in kind, in the form of two things, namely, (i) FSI or TDR for the area of
land surrendered; and (ii) additional FSI or additional TDR against the
development or construction of the amenity on the surrendered land.
24. Once the parties are ad idem on the fact that the case is
covered by clause (b), then what is necessary to be seen by Courts is:
(i) whether the parties had agreed to give/take FSI or TDR in lieu of the
amount of compensation?; and (ii) whether there was a valid claim for
the grant of additional FSI or additional TDR towards the development
or construction of the amenity on the surrendered land at the cost of the
owner?.
25. There is no dispute on facts in this case that the appellants
surrendered their land and accepted
TDR in lieu of compensation. The
only question on which the parties have a dispute, is as to whether the
last limb of clause (b) stands satisfied or not.
26. For a better appreciation, it is necessary to extract the last
limb of clause (b) as follows: “ … and also further additional Floor
Space Index or Transferable Development Rights against 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,”
27. The last limb of clause (b) extracted above shows that the
owner of the land is under an obligation to develop or construct the
amenity on the surrendered land at his cost and the Planning Authority
has to reciprocate the same by granting Additional FSI or Additional
TDR.
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28. On the question as to whether the appellants have fulfilled
their obligations under the last limb of clause (b), there are controversies
both on facts and in law. On facts it is contended by the respondents that
the appellants did not develop or construct the amenity and in law it is
contended that what is stated to be developed is not as per the Final
Development Control Regulations.
29. To resolve this conflict, it is necessary to take note of the
definition of the word “amenity”, which is defined in Section 2(2) of the
Act as follows:
“2. Definitions
In this Act, unless the context otherwise requires,—
xxx
xxx
xxx
(2) “Amenity” means roads, streets, open spaces, parks,
recreational grounds, play grounds, sports complex, parade
grounds, gardens, markets, parking lots, primary and secondary
schools and colleges and polytechnics, clinics, dispensaries and
hospitals, water supply, electricity supply, street lighting, sewerage,
drainage, public works and includes other utilities, services and
conveniences;”
30. The word “amenity” has been defined in Section 2(2) of the
Act to mean several things including “Recreational Grounds”. We are
concerned in this case with a “Recreational Ground”. The claim of
the appellants is that they have developed a Recreational Ground.
Interestingly, it is not the case of the respondents that the appellants
were required to develop something else and not a Recreational Ground.
On the contrary, it is the case of the
respondents that the appellants did
not develop the Recreational Ground. Therefore, all that we are obliged
to see is whether a Recreational Ground was developed or not.
31. The word “development” is also defined in the Act in Section
2(7) as follows:
“2. Definitions
In this Act, unless the context otherwise requires,—
xxx
xxx
xxx
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(7) “development” with its grammatical variations means the
carrying out of buildings, engineering, mining or other operations
in or over or under, land or the making of any material change, in
any building or land or in the use of any building or land or any
material or structural change in any heritage building or its precinct
and includes demolition of any existing building, structure or
erection or part of such building, structure of erection; and
reclamation, redevelopment and lay-out and sub-division of any
land; and “to develop” shall be construed accordingly;”
32. The above definition shows that the word “development” is
given a very wide meaning. In fact, the last limb of clause (b) of sub-
section (1) of Section 126 uses both the expressions, namely (i)
development; and (ii) construction. Therefore, the word “development”
has to be understood to mean any activity which may or may not include
construction.
33. Having seen the relevant provisions of the Statute, let us now
have a look at the Regulations. This has become necessary in view of
the fact that the last limb of clause (b) extracted above refers to “the
Final Development Control Regulations prepared in this behalf”.
Therefore, the question whether the appellants developed or constructed
any amenity, should be tested with reference to the Final Development
Control Regulations.
34. The Regulations define the word “amenity” under Regulation
2(7) as
follows:
“2. Definitions of Terms and Expressions:-
xxx
xxx
xxx
(7) “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.”
Even this definition includes Recreational Ground.
35. Regulation 34 of the Regulations deals with Transfer of
Development Rights. Regulation 34 reads as follows:
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“34. Transfer of Development Rights:-
In certain circumstances, the development potential of a
plot of land may be separated from the land itself and may be
made available to the owner of the land in the form of Transferable
Development Rights (TDR). These Rights may be made available
and be subject to the Regulations in Appendix VII hereto.”
36. Appendix VII referred to in Regulation 34 later got renumbered
as Appendix VII-A vide order dated 15.10.1997. Clauses 5, 6 and 7 of
the Regulations formed the eye of the storm before the High Court.
Therefore, they are extracted as follows:
“APPENDIX VII-A
(Regulation 34)
Regulations for the grant of Transferable Development Rights
(TDRs) to owners/developers and conditions for grant of such
Rights
xxx
xxx
xxx
5. The built-up area for the purpose of FSI credit in the form of a
DRC shall be equal to the gross area of the reserved plot to be
surrendered and will proportionately increase or decrease
according to the permissible FSI of the zone where from the TDR
has originated.
Provided that in specific cases considering the merits, where
Development Plan Roads/ reservations are proposed in No
Development Zone, the Commissioner with prior approval of the
Government shall grant FSI for such road land/reserved land
equivalent to that of the adjoining zone.
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.
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
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7. A DRC will be issued only on the satisfactory compliance with
the conditions prescribed in this Appendix.”
37. The High Court, after scanning the correspondence came to
the conclusion that clause 5 of Appendix VII alone is applicable to the
case on hand, since the appellants made a claim only for TDR equivalent
to the gross area of the reserved plot surrendered to the Corporation
and that clause 6 was not applicable as the owner did not develop or
construct the amenity on the surrendered land at his cost. Therefore, it
is necessary to go back to certain factual details to find out (i) whether
appellant No.1 did develop the amenity; and (ii) whether they made a
claim traceable only to clause 5 and not to clause 6 of Appendix VII to
the Regulations read with Regulation 34.
38. The answer to the first question whether appellant No.1 did
develop the amenity or not, lies in the correspondence. As we have
pointed out earlier, the word “amenity” means several things including
“recreation ground.” The word “development” includes under Section
2(7), mining or other operations in or over the land or the making of any
material change in any building or land and reclamation, redevelopment
and layout and sub-division of any land. Keeping these definitions in
mind, if we go back to the correspondence, the picture that unfolds is as
follows :-
(i)  By the letter dated 08.10.1994, the Architects of appellant
No.1 informed the
Director (ES&P) of the Bombay Municipal
Corporation that they “intended to develop the surrendered land before
handing over, by suitably cutting, levelling, filling and terracing
etc., in order to have a Recreation Ground with utility and beauty”;
(ii) A plan was also attached to the said letter dated 08.10.1994
showing the proposed overall development;
(iii) Pursuant to the said letter, the Superintendent and Deputy
Superintendent of Gardens visited the site, as could be seen from the
letter dated 24.11.1994 addressed by the Architect to the Superintendent
of Gardens. To this letter, a set of drawings prepared after incorporating
the suggestions of the Department was also enclosed;
(iv) By a departmental note dated 03.12.1994, the Superintendent
of Gardens seems to have addressed the Executive Engineer (DP)(ES)
indicating that the plan submitted by the Architect was slightly modified
after visiting the site. The Executive Engineer was also requested to
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inform further development in future so that the progress could be
monitored;
(v) The said departmental note dated 03.12.1994 contains an
endorsement at the bottom to the effect “please inform that developer
can develop the RG by availing ATDR.” Obviously, the acronym RG
stands for Recreation Ground and the acronym ATDR stands for
Additional Transferable Development Rights;
(vi) By a letter dated 05.04.1995 addressed by the Chief Engineer
(DP) to appellant No.1, they were instructed to carry out certain things,
as per the plan submitted by their Architect. Two important things could
be noticed from this letter. The first is that Point No.7 mentioned in the
said letter speaks about the joint measurement of the “Recreation
Ground”. The second is that the letter was described as an intent letter
valid for a period of one year, but eligible to be revalidated for further
periods;
(vii) By a letter dated 27.05.1995, the Deputy Chief Engineer
(Planning and Design) informed the Architects that the work undertaken
by them was found completed as per the amended plan approved by the
Department and as per the re-location approved by the Director (ES &
P). This letter was issued after an inspection of the site on 23.05.1995.
(viii) By a letter dated 28.09.1995, the Architect of appellant No.1
informed the Assistant Engineer (DP) that the Architects had a temporary
site office and go-down constructed on the plot reserved for Recreation
Ground and that they were being
used for constructing additional amenity
and landscaping of Recreation Ground. By the said letter, the Architect
undertook to remove these structures after completion of “the
development of RG”.
(ix) By a departmental note dated 30.11.1995, the Deputy Chief
Engineer sought the approval of Municipal Commissioner on certain
issues. One of the issues on which the orders of the Municipal
Commissioner were sought, was the development of RG by planting
trees, providing fountain etc. and the removal of the structures erected
by the Architects for the purpose of carrying out the development, within
two years. The said note was approved by the Municipal Commissioner
on 04.12.1995.
(x) It is only after the above events that the handing over and
taking over possession of the surrendered land took place on 09.12.1995.
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
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GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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(xi) After the handing over and taking over possession of the land,
the Superintendent of Gardens sent a communication date 14.12.1995 to
the Architect of appellant No.1 that they have no objection to the
landscaping being undertaken.
(xii) In a Departmental note put up on 28.12.1995, it was mentioned
clearly that the Recreation Ground was developed by appellant No.1
as per the approval of Superintendent of Gardens.
(xiii) On 02.01.1996, a DRC (Development Rights Certificate)
was issued to appellant No.1, with respect to the surrendered land.
(xiv) It is only thereafter that appellant No.2 who is a partner of
Mayfair Housing jumped into the fray and sought permission to maintain
the Recreation Ground, through a letter dated 20.11.1996. On the said
letter dated 20.11.1996, there is an endorsement of the Joint Municipal
Commissioner made on 26.11.1996 that the plot had come to BMC under
TDR and that, “he had spent Rs.1.25 crores on this RG and developed
it”.
(xv) On the said letter dated 20.11.1996 of Mayfair Housing, a
note order was passed by the Deputy Municipal Commissioner stating
that there was no clarity about the nature of the activities to be carried
out by Mayfair and that the same needed to be part of an agreement.
(xvi) Thereafter appellant No.1 executed two deeds of power of
attorney, both dated 24.12.1996 in favour of appellant No.2 and his wife.
By one power of attorney, appellant No.1 authorised their
duly constituted
attorneys to deal with the TDR already granted to them under the
Development Rights Certificate issued on 02.01.1996. By the other deed
of power of attorney, appellant No.1 authorized their duly constituted
attorneys to seek the grant of “Amenity TDR” also known as Additional
TDR. Interestingly, this deed authorized appellant No.2 and his
wife to apply for getting permission from the authorized department
for the construction of Recreation Ground in accordance with the
plans/specifications.
(xvii) It is important to note that both the deeds of power of
attorney were executed by appellant No.1 on 24.12.1996, after
appellant No.2 representing Mayfair Housing made a representation
on 20.11.1996 seeking permission for the development of Recreation
Ground.
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(xviii)  Therefore, when a note was put up by the Deputy Chief
Engineer on 30.01.1997 on the proposal made by the Deputy Municipal
Commissioner, it was indicated therein that the permission for the
development of RG plot has been granted although additional TDR
for the same was not admissible.
(xix) Thereafter, a communication was issued to Mayfair Housing,
with reference to the letter of appellant No.2 dated 20.11.1996, informing
them that the development and maintenance of the Recreation Ground
on payment of nominal fee has been sanctioned, subject to certain
conditions, one of which was that no TDR will be given.
(xx) All the above correspondence culminated in the letter of
request dated 17.04.1998 issued by appellant No.2 on behalf of appellant
No.1 for the grant of additional TDR.
39. The entire correspondence that began with a letter dated
14.07.1994 sent by Worthy Enterprises, the Architects of appellant No.1
to the Chief Engineer (DP) of the Municipal Corporation and culminating
in the letter of appellant No.2 dated 17.04.1998 seeking the grant of
additional TDR, can be split into two time zones. The first of these time
zones commenced with the letter dated 14.07.1994 and ended with the
handing over of possession of the land by appellant No.1 on 09.12.1995
to the Corporation and the Corporation issuing a DRC on 02.01.1996
granting TDR for the surrendered land. The second time zone
commenced on 20.11.1996 with Mayfair Housing seeking permission of
the Corporation to develop and maintain the Recreation Ground and
ended up with the request for additional TDR dated 17.04.1998 being
rejected by order dated 27.11.1998.
40. Once the entire correspondence between the appellants and
the respondents, is split into two time zones, an interesting picture emerges
therefrom. This can be summarised as follows:-
(i) What was applied for in Form No.2625 enclosed to the letter
of the Architects dated 14.11.1994, was only a DRC for the surrender
of the land. There was no indication in the said letter dated 14.07.1994
that appellant No.1 was interested in developing an amenity for the
purpose of claiming Additional TDR. This is why, the answer of appellant
No.1 to the question at Serial No. 17 of the printed Form for the grant of
DRC assumes significance. The question at Serial No.17 and the answer
thereto are extracted as follows:-
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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(17) 
Whether 
the 
reservation 
is 
proposed to be built upon as per the 
plans approved by the concerned 
Authority as per sub regulation No.6 of 
Appendix-VII, if so, details thereof. 
 : Does not arise as the 
    reservation is for R.G. 
(ii) The above answer to question No.17, in Form No.2625
submitted by appellant No.1 themselves along with their letter dated
14.07.1994, stands in stark contrast, to the answer to the very same
question in the Form submitted by appellant No.2 along with the letter
dated 17.04.1998. Question No. 17 and the answer thereto in the Form
submitted by appellant No.2 along with the letter dated 17.04.1998 read
as follows:
(iii) Therefore, it is clear that it is only after appellant No.2, a
builder, entered into the scene that the claim for additional TDR cropped
up. As we have stated earlier, appellant No.2 entered the scene only in
November 1996, first sought permission to develop and then got a Power
of Attorney executed in his favour on 24.12.1996. Till the entry of
appellant No.2, it was only ‘Worthy Architects’ who were representing
the appellant No.1. This can be seen from other documents also.
(iv) For instance, in the letter dated 08.10.1994, Worthy Enterprises
sought permission to develop the Recreation Ground reservation by
suitably cutting, levelling, filling and terracing etc. But there is no whisper
in the said letter about additional TDR;
(v) However, an endorsement is made
in the internal department
note dated 03.12.1994 asking the officer concerned to “inform the
developer that he can develop the RG by availing ATDR.” But it
must be remembered at this stage that the claim of appellant No.1 for
TDR by surrendering the land itself was pending consideration and the
offer for levelling, cutting etc., seem to have been made for the purpose
of convincing the Corporation to accept the surrender of land and to
grant TDR. The subsequent correspondence show that the work of
cutting, filling, levelling and terracing was completed, only to enable the
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Corporation to accept the surrender of land and grant TDR. This will be
clear from the letter dated 20.07.1995 issued by the Chief Engineer
laying down certain conditions including the construction of Storm Water
Drains, for the purpose of grant of DRC even for the surrender of land;
(vi) It is only in the letter dated 28.09.1995 sent by Worthy
Enterprises that a mention about “additional amenity” is made for the
first time. Till this letter, there was no mention about any “additional
amenity” and all the activities of development agreed to be undertaken
or actually undertaken were for the purpose of convincing the Corporation
to accept the land and grant TDR;
(vii) Even internal note dated 30.11.1995 speaks about conditions
for the grant of DRC towards TDR and not about additional TDR;
(viii) A perusal of the possession receipt dated 09.12.1995 contains
a description of the subject matter as follows:-
“Grant of DRC in lieu of land….”
This possession receipt notes that a compound wall with a gate has been
provided and that the D.P. Road with provisions of Storm Water Drain
has been constructed and that the possession of the land is taken subject
to the owner agreeing to rectify the defects in the works. Therefore, it is
clear that whatever works were undertaken by appellant No.1 and their
Architects, were part of the conditions fulfilled to make the Corporation
accept the surrender of land and issue a DRC towards TDR.
(ix) If cutting, filling, levelling,
terracing etc., formed part of the
development of the amenity for gaining additional TDR, there was no
necessity for appellant No.1 to have got into a tie-up with appellant
No.2, the partner of Mayfair Housing and that too after the handing
over of possession. In fact, as noted earlier, appellant No.2 and Mayfair
Housing jumped into the fray only after appellant No.1 completed the
work of filling, levelling, construction of Storm Water Drains etc., through
their Architects and handed over possession on 09.12.1995 and received
DRC for the surrender of the land on 02.01.1996;
(x) It is interesting to note that the two deeds of Power of Attorney
executed by appellant No.1 in favour of appellant No.2 are dated
24.12.1996. But even before the said date, Mayfair Housing writes a
letter dated 20.11.1996 seeking permission to develop and maintain a
garden in the land. At the cost of repetition, it should be stated that if
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GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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cutting, filling, levelling etc., constituted the development of amenity for
the purpose of earning Additional TDR, they have all been done even
before Mayfair Housing came into the picture. If the development of
amenity had already taken place, there was nothing for Mayfair Housing
to do and yet they seek by a letter dated 20.11.1996 permission to develop
and maintain a garden;
(xi) A list of works to be carried out for the purpose of maintenance
of the garden annexed to the note of the Deputy Municipal Commissioner
shows that they were primarily for the maintenance of the existing
facilities;
(xii) Another conundrum evidenced by the documents is that the
second deed of Power of Attorney dated 24.12.1996 authorises the power
agent to apply for getting permission from the authorised department of
the Corporation for the construction of Recreation Ground. Some of the
clauses contained in the second deed of Power of Attorney empowering
appellant No.2 to seek additional TDR read as follows:-
“2. To apply for getting the permission from the authorized
department of the Corporation for the construction of the
Recreation Ground in accordance to the plans/specifications
as approved by the Municipal Corporation of Greater Bombay.
4. To carry out, from time to time, construction of the
Recreation Ground or such other construction/development
as may be required by the Municipal Corporation of Greater
Bombay in phase/phases, in
terms of the plans approved by the
Municipal Corporation of Greater Bombay.
11. To appoint, from time to time, architects, engineers,
surveyors, contractors, R.C.C. Consultants and other
professionals, designers and other persons for preparing the
plans for construction of the Recreation Ground and sign and
submit any and all such plans, designs and specifications
with or without applications as the occasion may require to
the Competent Authorities, Municipal Corporation of Greater
Bombay and all other appropriate authorities like the Maharashtra
State Electricity Board and Aviation Authorities, etc., for approval.
17. To apply for and obtain from time to time , the amenity
Transferable Development Rights/ Development Right Certificate
of the Recreation Ground so constructed, and to submit the
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Development Right Certificate so issued for the amenity TDRs/
DRC to the Municipal Corporation of Greater Bombay, for
transferring and/or endorsement of the same in the name of our
Attorneys and /or in the name of such nominee/nominees and/or
such person/persons as our Attorneys may decide for an area
amounting to 2,710 square metres equivalent to 29,170.175 sq.ft.”
41. To be precise, all activities undertaken by appellant No.1 through
their Architects till the handing over of possession of the land were not
towards the development of amenity and for the grant of Additional
TDR. All those works were undertaken as part of the effort to make the
Corporation accept the surrender of land and to grant TDR.
42. It is only after the entry of Mayfair Housing into the picture,
first with a letter of request dated 20.11.1996 to the Corporation to
develop and maintain the Recreation Ground and then with the execution
of the Power of Attorney by appellant No.1 on 24.12.1996 that the idea
of developing an amenity and seeking additional TDR had cropped up.
But unfortunately, the Corporation made it clear to Mayfair Housing
represented by appellant No.2 herein that he will not be entitled to
Additional TDR, for the development of Recreation Ground. In the letter
dated 23.01.1998 it was made clear to Mayfair Housing that no TDR
will be given to them.
43. It is relevant to point out here that when Mayfair Housing
sent a letter dated 20.11.1996 to the Corporation seeking
permission to
develop and maintain the RG, they had nothing to do with the surrendered
land. Therefore, they were not entitled either to TDR or to additional
TDR. Realising this difficulty, they appear to have got 2 deeds of PoA
from appellant No.1 so as to piggy ride on appellant No.1. In fact, the
first PoA was redundant since by the time it was executed, appellant
No.1 had already obtained DRC for TDR. Yet, the first PoA was towards
TDR and the second PoA was for additional TDR.
44. Therefore, even an independent analysis of the correspondence
between the parties show that no amenity was developed as required by
law, by appellant No.1, to be entitled to Additional TDR. In fact, we
could have simply affixed our seal of approval to the finding of fact
recorded by the High Court of Bombay in this regard, as the said finding
does not appear to be perverse. But instead of taking such a short-cut
route, we have gone into greater detail so that the valuable rights
guaranteed to appellant No.1 under Article 300A is not defeated.
GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITS
CONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI [V. RAMASUBRAMANIAN, J.]
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SUPREME COURT REPORTS
[2023] 6 S.C.R.
45. Drawing our attention to the photographs of the Recreation
Ground as it exists, it was argued by the learned senior counsel for the
appellants that what was once a barren land, could not have become
what it is but for the activities undertaken by the appellants. Therefore,
his argument was that if this is not construed as development of amenity,
nothing else can be construed so.
46. But unfortunately for the appellants, whatever they had done
through their Architects up to the date of handing over possession and
getting the DRC, was not projected by them as the development of
amenity. If all those activities up to the date of handing over possession
constituted development of amenity, there was no necessity for appellant
No.1 to give PoA to appellant No.2 to undertake the activity of
development of amenity and to seek Additional TDR. If the work of
development of amenity and the lodging of a claim for additional TDR
had been undertaken only after Mayfair Housing entered into the picture,
then the appellants became bound by the condition laid down by the
Corporation that appellant No.2 will not be entitled to Additional TDR.
47. Therefore, we are of the view that the High Court was right
in recording a finding of fact that the appellants did not develop the
amenity so as to be entitled to additional TDR. Once the finding of fact
made by the High Court in this regard is upheld, the appeal should
automatically meet
with the fate that it deserves. Accordingly, the appeal
is dismissed. There will be no order as to costs.
Pending application(s) if any, shall stand disposed of.
Nidhi Jain
Appeal dismissed.
(Assisted by : Tamana, LCRA)