JUDGMENT

V.S. Sirpurkar. J.

1. Leave granted.

2. Whether the High Court was right in directing the Appellant The Municipal Corporation of Greater Bombay (hereinafter called "the MCGB" for short) to grant additional transfer development rights (hereinafter called "TDR" for short) and to issue further development rights certificate (hereinafter called "DRC" for short) equivalent to 2646.14 sq. metres (85 % of the area of a courtyard) developed by the Respondents in favour of the Appellants is a question that fall for consideration in this appeal.

3. By the impugned judgment, the Bombay High Court under Clause 6 of Appendix VII to the Development Control Regulation for Greater Bombay, 1991 (hereinafter called "the Regulations" for short) has issued such a direction in a writ petition filed by the Respondents herein.

Factual panorama

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, 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:

9. The Petitioners shall be entitled to the benefit of Additional Transferable Development Rights (hereinafter referred to as 'ATDR'), if the Petitioners are asked by the Respondent No. 1 to construct and develop the Export Office for the Corporation on the land so surrendered at their own costs and as per the plans and designs and specifications of the Respondent No. 1 and hand over the premises so constructed to the Respondent No. 1 free of costs as per the Sub-Regulation 6 of Appendix VII of the Development Control Rules for Greater Bombay, 1991.

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. 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