IMPORTANT POINT
A circular cannot override statutory provisions.

JUDGMENT

Aftab Alam, J. —

1. Maharashtra town planning law has evolved, with a view to promote planned development and de-congest the highly congested areas, the imaginative concept of making, under certain circumstances, the development potential of a plot of land separable from the land itself and further letting the development rights to be transferable by the land owner. The provisions made for the development rights that arise from a piece of land and yet acquire a separate and independent existence with the added flexibility of being transferable come very useful in case of plots of land shown in the Development Plan as reserved for some public purpose or amenity that prohibits their owners from developing those plots by making any other kind of construction. In such circumstances it is open to the landowner to surrender the plot of land free of cost (and free from all encumbrances) to the municipal authorities who may acquire the land by granting to the landowner Floor Space Index or Transferable Development Rights against the area of the surrendered land. The law further provides for additional Floor Space Index or Transferable Development Rights against the development or construction of amenities (for which the plot is shown reserved in the plan) by the owner at his own cost.

2. The appellants and the petitioners in this batch of appeals and writ petition had their plots of land shown in the Development Plan as reserved for roads. They voluntarily surrendered their lands. In addition, they constructed on their respective pieces of land the Development Plan roads at their own cost and as per the specifications stipulated in the relevant rules. There is no dispute between the parties in regard to the Floor Space Index or Transferable Development Rights granted to them for the surrendered pieces of land. But the parties are in serious controversy over the extent of Floor Space Index or Transferable Development Rights for the roads constructed on the surrendered lands at the owners’ cost. The landowners claim that for constructing the roads they are entitled to Floor Space Index or Transferable Development Rights for the whole of the surface area of the roads. In support of their claim they rely upon paragraph 6 of Appendix VII to the Development Control Regulations for Greater Bombay, 1991 that provides for, ‘...a further DR in the form of FSI equivalent to the area of the construction/development done by him (landowner)......’. The municipal authorities would, however, grant them additional Transferable Development Rights only to the extent of 15% of the road area. The stand of the municipal authorities is based on a circular dated April 9, 1996 issued by the Municipal Commissioner, Municipal Corporation of Greater Bombay. The circular envisages a graded scheme for grant of Additional Development Rights for construction of amenities by the landowner, e.g., in case of amenities like general hospital, municipal primary school etc. it allows FSI equal to the built up area of the structure but in case of DP road only 15% of the area of the road surface. On behalf of the landowners it is argued that the contents of the circular are no more than executive instructions and can not supersede or override the provisions of the Regulations which are legislative in nature; in any event the circular would only operate prospectively and have no bearing on the cases in hand since it was issued after the appellants and the petitioners had surrendered their plots of lands after constructing roads on those lands as required by the authorities. The argument is sought to be repelled on behalf of the state and the municipal authorities by taking the position that the law provides for grant of additional Floor Space Index or Transferable Development Rights commensurate to the value of the amenity constructed by the landowner and the meaning of paragraph 6 of Appendix VII to the Regulations will be clear by reading it along with the other p