IMPORTANT POINT
Town Planning – Cancellation of Transferable Development Rights Certificate long after surrender of land is not sustainable.

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, 1996⁴ [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 Regulations⁶ [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-bu