Point of Law : Right to property although is no longer a Fundamental Right after 42nd Amendment to the Constitution, it is constitutionally secured.

ORDER :

1. All these petitions broadly involving common grievances of the land losers are presented to the Writ Court essentially seeking a direction to the respondent BBMP for issuance of ‘Transferable Development Rights’ (hereafter TDR) or ‘Developmental Rights Certificates’ in respect of lands in question which they have relinquished in favour of BBMP years ago for the formation or widening of roads.

2. After service of notice, the respondent-State and its officials have entered appearance through the learned AGA; the respondent-BBMP and its officials are represented by their Senior Panel Counsel; similarly, the respondent-BDA and its officials are represented by their Senior Panel Advocate. The respondent-BBMP has filed a Statement of Objections in W.P. No. 1440/2021 resisting the claim of petitioners. The said objections are adopted for the rest of petitions too. Learned Addl. Govt. Advocate and the Panel Advocates make submission seeking dismissal of the writ petitions principally contending that the lands are no longer required and that the same will be returned to the land owners.

3. FACTS IN BRIEF:

All the petitioners happen to be the erstwhile owners of the lands comprised in the subject Relinquishment Deeds. These lands along with other do figure in the Revised Master Plan, as being presumptively required for the public purposes mentioned therein i.e. road widening. The Relinquishment was done more than five years ago and it was at the instance of BBMP which in turn was permitted to take these lands as per the Government Notification of 2005. This being, the TDR certificates have not been given to the petitioners despite representations. The BBMP now contends that these lands are no longer required and therefore, would be returned to the relinquishes. Even otherwise, the subject lands being situate outside its territorial jurisdictional limits, they cannot be made use of and therefore, TDR Certificates cannot be granted. With this principal stand dismissal of Writ Petitions is sought for.

4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

(a) Right to property although is no longer a Fundamental Right after 42nd Amendment to the Constitution, it is constitutionally secured. The Apex Court in Bajranga vs. State of Madhya Pradesh, (2021) SCC Online SC 27 reiterated: “Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.” Ordinarily, the State takes the property of private persons either by consensual purchase or by compulsory acquisition, as provided under the law concerned. The latter is inter-alia subject to payment of adequate compensation. The claim of petitioners has to be adjudged keeping this in mind.

(b) For conceptual clarity, it would be profitable to refer to ‘Transferable Developmental Rights, Guidelines For Implementing of TDR Tools for Achieving Urban Infrastructure Transition in India’ (2020) published by the NITI AYOG:

“TDR means an award specifying the Built-Up Area (BUA) an owner of a site or plot can either sell or utilize-in-situ/elsewhere, in lieu of the land foregone on account of surrendering/gifting land free of cost to the ULB’s (Municipal Body, Urban Improvement Trust, Urban Development Authority), required to be set apart for public purpose as per the Master Plan or for road widening, recreational use zone, etc. The award is in the form of a TDR Certificate issued by the Competent Authority. The TDR Certificate inter-alia should mention the area surrendered and the cost of that area as per the circle rate. These certificates are regulated under the building Bye-Laws or in conjunction with TDR guidelines framed by State Governments from time-to-time.....”

With regard to TDR, before TDR was conceptua