1. Land surrender for public purpose under Town Planning Act — Grant and subsequent reduction of Transferable Development Rights (TDR) based on Floor Space Index (FSI) zoning. (Para 1 , 2 , 6 , 8 )
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2022 Supreme(SC) 748
SUPREME COURT OF INDIA
N.V. RAMANA, CJI., HIMA KOHLI, J.
Rajhan Narendra Rout and Others – Appellants
Versus
The State of Maharashtra and Others – Respondents
Civil Appeal No. 4639 of 2012
Decided On : 25-08-2022
Important Points
IMPORTANT POINT
Town Planning – Cancellation of Transferable Development Rights Certificate long after surrender of land is not sustainable.
Town Planning – Cancellation of Transferable Development Rights Certificate long after surrender of land is not sustainable.
Subject
Civil Law - Land Law
Act Referred
Maharashtra Regional Town Planning Act, 1996: S.126, S.50(3), S.127, S.14, S.22, S.22(A), S.50
Development Control Regulations: Reg.N-2.4.5
Development Control Rules for Pune Municipal Corporation, Pune, 1982: R.M-8, R.N-2.4.5, R.14.2
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2003
Development Control Regulations: Reg.N-2.4.5
Development Control Rules for Pune Municipal Corporation, Pune, 1982: R.M-8, R.N-2.4.5, R.14.2
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2003
Headnote
Town Planning – Transferable Development Rights Certificate – Cancellation – Under Scheme floated by respondent/Corporation, wherever land was to be acquired for development schemes in Pune, land owners could opt for Scheme and in lieu of surrendered land they would be entitled to grant of TDR as compensation – Appellants had surrendered subject land to Corporation in expectation of grant of TDR – In all this back and forth between respondents it is appellants who have been left high and dry – They had surrendered subject land to authorities as far back as in year 2004 on expectation of being granted TDR, which has still not materialized – In these eighteen years, respondents have continued to retain possession of subject land – Gross injustice has been caused to appellants who had offered their land to Corporation on the basis of a Scheme floated by it proposing to acquire land for public purpose and grant TDR to land owners in lieu of land – Having decided to award TDR @ 100% FSI to appellants, later on respondents reneged from their decision and slashed offered TDR to 4% FSI on the premise that appellants could not compare their land with adjoining lands for claiming residential use – Corporation directed to return land acquired by it to appellants within four weeks – Once possession is restored, appellants shall be permitted to use it for residential purposes – Respondents directed to compensate appellants @ Rs.1 Crore per year for loss caused to them. (Paras 21, 26, 27, 31 and 32)
Facts of the case:
Appellants are aggrieved by the judgment dated 13/14th March, 2012 passed by the High Court of Bombay, dismissing the challenge laid by them to the order dated 27th December, 2007 passed by the then Chief Minister of the State of Maharashtra, cancelling the Transferable Development Rights Certificate earlier granted in favour of appellants @ 100% Floor Space Index and upholding the decision to reduce TDR granted to the appellants from 100% FSI to 4% FSI.
Findings of Court:
In order impugned before High Court, no effort was made to explain as to why the opinion taken by respondent No.1/State had to be brushed aside. No explanation has been offered that justified disagreement with the said opinion; no effort was made by the State to approach Advocate General for obtaining a fresh opinion on the plea that the letter seeking earlier opinion, had furnished erroneous facts. In all this back and forth between respondent Nos.1 and 2/State and respondent Nos.3 and 4/Corporation, it is the appellants who have been left high and dry.
Result : Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
Advocates appeared:
For the Appellant(s) : Mr. Neeraj Kishan Kaul, Sr.Adv. Ms. Sheyl Trehan, Adv. Mr. Pranaya Goyal, Adv. Mr. Rohan Poddar, Adv. Mr. Dharav Shah, Adv. Ms. Namisha Chadha, Adv. Mr. Vikas Mehta, AOR
For the Respondent(s): Mr. Sachin Patil, AOR Mr. Rahul Chitnis, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Durgesh Gupta, Adv. Mr. Vijay Kumar, Adv. Mr. Shantanu Adkar, Adv. Mr. Ram Kripal Singh, Adv. Ms. Bharti Tyagi, AOR Mr. Venkita Subramoniam T.R, AOR
Advocates appeared:
For the Appellant(s) : Mr. Neeraj Kishan Kaul, Sr.Adv. Ms. Sheyl Trehan, Adv. Mr. Pranaya Goyal, Adv. Mr. Rohan Poddar, Adv. Mr. Dharav Shah, Adv. Ms. Namisha Chadha, Adv. Mr. Vikas Mehta, AOR
For the Respondent(s): Mr. Sachin Patil, AOR Mr. Rahul Chitnis, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Durgesh Gupta, Adv. Mr. Vijay Kumar, Adv. Mr. Shantanu Adkar, Adv. Mr. Ram Kripal Singh, Adv. Ms. Bharti Tyagi, AOR Mr. Venkita Subramoniam T.R, AOR
Table of Contents
2. Entitlement to TDR based on adjacent residential zoning and promissory estoppel — versus — reduction based on specific Hill Top/Hill Slope zone regulations and factual errors. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 )
3. State reneged on TDR grant without fresh legal opinion or justification — Appellants deprived of land use and compensation for eighteen years — Lack of administrative consistency. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 )
4. Government cannot arbitrarily reduce promised development rights after land surrender without providing a justified legal basis or fresh opinion, especially when causing prolonged deprivation. (Para 26 , 27 , 31 )
5. Land restored to owners for residential use — Monetary compensation awarded for loss of land use since surrender. (Para 31 , 32 )
6. How is TDR determined for reserved sites that do not have a specific assigned zone?
In the absence of specific zoning for reserved sites, the zoning of the adjoining land in the vicinity is taken into consideration to determine the permissible FSI for awarding TDR. (Para 4 , 22 , 23 )
7. Can the State revoke a TDR grant based on a previous legal opinion due to factual errors?
The State cannot arbitrarily cancel or reduce TDR granted based on a legal opinion without providing a justified explanation or obtaining a fresh legal opinion to correct purported factual errors. (Para 24 , 25 , 26 )
8. What remedy is available when the State fails to provide promised TDR after land surrender and retains possession?
If the State reneges on TDR promises and retains land without putting it to public use, the court may order the return of the land and award monetary compensation for the loss of use. (Para 26 , 31 )
JUDGMENT :
HIMA KOHLI, J.
1. The appellants are aggrieved by the judgment dated 13/14th March, 2012 passed by the High Court of Bombay, dismissing the challenge laid by them to the order dated 27th December, 2007 passed by the then Chief Minister of the State of Maharashtra, cancelling the Transferable Development Rights1 [for short ‘TDR’] Certificate earlier granted in favour of the appellants @ 100% Floor Space Index2 [for short ‘FSI’] and upholding the decision to reduce the TDR granted to the appellants from 100% FSI to 4% FSI.
2. The subject matter of the dispute in the present appeal is in respect of a parcel of land, situated in plot No. 517 (part) and plot No. 523 (part) at Parvati, Pune, measuring 66372.82 sq. mts. In the Development Plan of Pune City, 19873 [for short ‘Development Plan’] the said land was reserved for the purpose of a park. The stand of the appellants is that the subject land was shown in the ‘Hill Top/Hill Slope’ zone in the Development Plan under Maharashtra Regional Town Planning Act, 1996 4 [for short ‘Town Planning Act’]. Respondent No. 3/Pune Municipal Corporation 5 [for short ‘Corporation’] invoked Section 126 of the Town Planning Act that permits acquisition of land which is reserved under the Development Plan, for public purposes and contemplates issuance of TDR against the area of land acquired or surrendered by the land owners free of cost. In terms of the aforesaid provision, the appellants agreed to surrender the subject land to the respondent No. 3/Corporation and opted for grant of TDR. The respondent No. 3/Corporation completed the acquisition process in respect of the said land and agreed to grant TDR to the appellants in terms of the Development Control Regulations 6 [for short ‘DC Regulations’] framed under the Town Planning Act, in particular Regulation N-2.4.5.
3. Respondent No. 4/Commissioner of the Corporation addressed a letter dated 22.2.2001 to the respondent No. 2/Secretary, Urban Development Department7 [for short ‘UD Department’] of the respondent No. 1/State of Maharashtra seeking a clarification as to the rate at which TDR was to be granted in respect of the subject land.
4. The Principal Secretary, UD Department wrote to the Advocate General of the State on 3rd September, 2003 for obtaining legal advice on the above aspect. The said letter highlighted inter-alia the fact that the parcel of land in question had not been zoned for ‘Hill Top/Hill Slope’ and for purposes of deciding the value of TDR for a reserved site which does not bear any zoning, zoning of the adjoining land is taken into consideration by the respondent No. 3/ Corporation. The Advocate General forwarded his opinion on 22nd September, 2003, stating that if the plots adjacent to the acquired/surrendered land were in a residential zone, then TDR for the said land was to be awarded at the rate of FSI available to the residential plots. On the basis of the said legal opinion, vide letter dated 9th October, 2003, the Under Secretary, UD Department informed the respondent No. 4/Commissioner of the Corporation that since the zoning line was not shown in the Development Plan, the applicable TDR for the subject plot shall be @ 100% FSI, as that was the rate appliable to the surrounding land.
5. On 20th October, 2003, Director, Town Planning, Pune requested the State Government to reconsider its decision of awarding TDR @ 100% FSI to the appellants and to pass a revised order awarding TDR @ 4% FSI. Respondent No. 2/State responded vide letter dated 12th March, 2004, stating that unlike the Development Plan of Mumbai, the Development Plan of Pune does not contain zones and/or zoning lines and as per the Town Planning Scheme of Pune, the subject land was to be kept open. The letter further clarified that while granting TDR for any land under reservation, TDR is granted as per the permissible FSI, irrespective of non-buildable nature of land due to shape and accessibility. Reliance was placed on the remarks made by the Ad
