The right to Transferable Development Rights (TDR) for constructed amenities accrues at the time of land surrender, and amendments to regulations do not apply retrospectively, ensuring compensation rights are upheld.

JUDGMENT :

NAGARATHNA, J.

These appeals have been filed against three impugned judgments and orders of the High Court of Judicature at Bombay, namely,

i) Judgment dated 18.12.2018 whereby Writ Petition Nos. 1898/2009, 1823/2012, 839/2015, 2871/2015, 2107/2016, 2170/2016, 384/2017 and 541/2017 were rejected on the ground of delay and laches and the writ petitioners therein/appellants herein have filed an appeal. Writ Petition Nos. 203/2014 and 2262/2010 were allowed and Writ Petition No.1860/2017 was partly allowed.

As against Writ Petition No.203/2014, Municipal Corporation of Greater Mumbai (hereinafter referred as “Mumbai Municipal Corporation”) has filed Civil Appeal No.9708/2024 arising out of Special Leave Petition (Civil) No.13365/2019. However, as against orders in Writ Petition No.2262/2010 and 1860/2017, there are no Special Leave Petitions filed by the Mumbai Municipal Corporation;

ii) Judgment and Order dated 18.10.2019/08.11.2019 whereby Writ Petition No.2531/2009 was allowed and the Mumbai Municipal Corporation has filed Civil Appeal No.9711/2024 arising out of Special Leave Petition (Civil) No.10430 of 2020;

iii) Judgment dated 20.10.2022 whereby Writ Petition No.411/2013 was allowed and the Mumbai Municipal Corporation has filed Civil Appeal No.9712/2024 arising out of Special Leave Petition (Civil) No.606 of 2023.

1.1 Thus, there are sets of judgments and orders of the Bombay High Court which have been considered together owing to their similarity.

1.2 The High Court considered the writ petitions on the issue concerning the implementation of the decision of this Court in Godrej & Boyce Manufacturing Company Limited vs. State of Maharashtra, (2009) 5 SCC 24 (“Godrej & Boyce I”). The said decision dealt with Regulation 34 read with Para 6 of Appendix-VII to the Development Control Regulations for Greater Bombay, 1991 (“the DCR” for short).

Relevant facts:

2. With regard to the order dated 18.12.2018, the writ petitioners before the High Court (appellants herein) were holding plots of land shown as reserved in the sanctioned development plan under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act” for short) which were reserved for Development Plan Road (“DP Road” for short). According to the writ petitioners, they constructed DP Roads at their own cost and voluntarily surrendered the reserved lands to the Mumbai Municipal Corporation. In lieu thereof, in terms of clause (b) of sub-section (1) of Section 126 of the MRTP Act read with Regulations 33 and 34 as well as Para 5 of Appendix-VII of DCR, the writ petitioners were granted Floor Space Index (“FSI” for short) and/or Transferrable Development Rights (“TDR” for short) in the form of Development Rights Certificates (“DRC” for short) equal to the gross area of the plots surrendered by them. Para 6 of Appendix-VII (as it stood prior to its amendment) provided that when an owner or a lessee also develops or constructs the amenities on the surrendered plot at his own cost and hands over the developed/constructed amenity to the Municipal Commissioner, he is entitled to DRC in the form of FSI or TDR equivalent to the area of construction/development done by him. The expression “amenity” has been defined in sub-section(2) of Section 2 of the MRTP Act as well as clause (7) of Regulation 3 of DCR.

2.1 For the purpose of implementation of the DCR, two Circulars were issued on 09.04.1996 and 05.04.2003. By Circular dated 09.04.1996, the DRC equivalent to 15% area of the DP Road constructed by the owner or lessee on the surrendered plot was to be provided when the owner or lessee surrendered the developed amenity together with the reserved plot. By Circular dated 05.04.2003, the figure was enhanced to 25%.

2.2 In Godrej & Boyce I, this Court held that the expression “equivalent” in Para 6 of Appendix-VII would entitle the owner or lessee to 100% FSI or TDR for the construction of an amenity at his cost. Therefore, FSI or TDR for construction of an ame