IMPORTANT POINT
The appellant cannot claim the benefit of land potential viz. FSI and TDR in lieu of compensation awarded in his favour by the Arbitrator in this case.

JUDGMENT

S.B. Sinha, J.-Writ Petitioners are the appellants herein. They are aggrieved by and dissatisfied with the judgment and order dated 31.07.2001 passed by the Bombay High Court in Writ Petition No. 1631 of 1995, dismissing their Writ Petition.

2. A plot of land being C.S. No. 820, Survey No. 115A admeasuring 5476.45 sq. metres originally belonged to one Gokuldas Jeevraj Dayal. By reason of a consent decree passed by the Bombay High Court on 30th March, 1982, the said land vested in the appellants herein. It formed a part of R- Ward wherefor a draft Development Plan was published by the Bombay Municipal Corporation (Corporation) on 18th September, 1958. A 100 feet wide Development Plan road was proposed to be constructed and admittedly the said land was shown to be affected in the draft Development Plan which came into force on or about 1st November, 1965 being sanctioned. A Town Planning Scheme being No. III of R-Ward came into being in the year 1961 upon a declaration made in this behalf by the Corporation. A draft Scheme was published on 17th July, 1976 wherein the plot as referred to hereinbefore was given a new number being original plot No. 433. With a view to give effect to the said Scheme and determining the rights and interests of the persons holding plots coming within the purview of the Scheme an Arbitrator in terms of Section 72 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter called and referred to for the sake of brevity the Act ) was appointed. The Arbitrator in his award dated 30th October, 1987 while making a Town Planning Scheme allotted final plot No. 694 admeasuring 1240.90 sq. metres and final plot No. 713 admeasuring 2079 sq. metres aggregating to 3319.90 sq. metres in lieu of original plot No. 433. It is not in dispute that only 854 sq. metres of land out of original plot No. 433 belonging to the appellant did not form part of the road. For acquisition of the said land as also for the structures standing thereupon a compensation of Rs. 4,97,567.20 apart from allotment of the said two plots was awarded in favour of the appellant. An appeal against the said award questioning the quantum of compensation was preferred by the appellant in terms of Sub-section (1) of Section 74 of the Act, which was dismissed.

3. It is not in dispute that as final plot Nos. 694 and 713 did not form part of the original plot, additional Floor Space Index (FSI) under Rule 10(2) of the Development Control Rules, 1967 was not awarded by the Arbitrator.

4. Allegedly, on or about 30th January, 1985 a Policy Resolution was passed by the Corporation granting benefit of additional FSI in lieu of compensation in respect of plots covered by Town Planning Schemes which had been sanctioned prior to the Development Control Rules, 1967 came into force. Certain correspondences were exchanged between the appellants and the Corporation in terms of letters dated 8th December, 1989, 8th February, 1990, 6th June, 1991 and 26th June, 1991; pursuant whereto and in furtherance whereof the parties toyed with the idea of grant of additional FSI in lieu of compensation to the appellants. The Corporation imposed certain conditions in respect thereof but it appears that the appellants did not agree thereto. The matter ended there.

5. However, on 25th March, 1991 the Development Control Regulations for Greater Bombay, 1991 came into force replacing the Development Control Rules, 1967. Regulations 33, 34 read with appendix VII (5 and 6) postulated grant of FSI and additional Transferable Development Rights (TDR) in lieu of compensation. It is not in dispute that whereas in terms of the Rule 10(2) of the Development Control Rules, additional FSI could be granted only when the new plot formed part of the original plot but in terms of new regulations the same was available even in respect of a final plot.

6. The Scheme which was finalized on 30-10-1987 was notified on 8th October, 1991 and was made final by reason of a noti