1995 Supreme(Bom) 475

IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Shivkumar Gupta.... Petitioner.
Versus
The State of Maharashtra and another.... Respondents.
Writ Petition No. 1615 of 1995, decided on 11-10-1995.
Advocates appeared :
K.K. Singhvi with S.S. Naphade, i/b M.K. Nesari, for petitioner.
R.A. Dada, A.S.G. with Mrs. S.V. Bharuchanee, Miss S.P. Daruwala, for respondent No. 1.
Ms. Aruna Savla, for respondent No. 2.

Headnote:Section 88-C-Allotment of plot to petitioner in lieu of his properties affected in Town Planning Scheme-Mandatory duty of Corporation to handover vacant and peaceful possession.

       Section 31-Development Control Rules, 1967, Rule 10(2)-Development Control Regulations for Greater Bombay, 1991-Reg. 34, App. VII, Reg. IV -Scope of.

       Regulations 33, 34 and Appendix VII are liable to be interpreted on their own terms having regard to the scheme, object and content of 1991 Regulations having regard to the language in which the said Regulations are couched. The Development Control Rules, 1967 did not contain any provision for the grant of transferable development right at all. The scheme of Development Control Roles, 1967 was radically different from the scheme of Development Control Regulations, 1991. It cannot be held that Rule 10(2) of the Development Control Rules, 1967 is directly or indirectly re-enacted in Regulation 33(1) or Regulation 14 of Appendix VII of the above-referred regulations. Regulations 33, 34 and Appendix VII shall be interpreted by the Court having regard to the language of these regulations and the scheme disclosed by the 1991 Regulations and not with reference to 1967 Rules. Court did not agree that the objective of relevant 1991 Regulations is the same as the objective of Rule 10(2) of Development Control Rules, 1967. The 1991 Regulations make more liberal provision for grant of extra F.S.I. in certain cases than 1967 Rules. The said regulations make provision for issue of transfer of development rights.

       Regulation 34 of the said Regulations provides that the development potential may be made available to the owner of the land in the form of transferable development rights. The transferable development rights are made available to the owner including the lessee of the land on issue of development rights certificate. The development rights certificate are made in terms transferable on the endorsement made by the Municipal Commissioner as set out in Regulation 8 of Appendix VII. The first question which is required to be asked is as to whether Regulation 14 of Appendix VII contains any words of limitations in respect of user of the extra F.S.I. of 0.4 so as to restrict its availability and user to the same very plot of which surrendered plot formed a part. The first part of Regulation 14 of the said Regulations provides that the F.S.I. of the receiving plot shall be allowed to be exceeded by not more than 0.4 in respect of development right available in respect of reserved plot (as for example a garden plot). It is not disputed that extra F.S.I. of 0.4 for which provision is made by the first part of Regulation 14 can be utilised on development of a receiving plot wherever situate provided the same is situate within the area specified in Appendix VII of the said Regulations and not in the area where user of T.D.R. is forbidden. The question to be asked is as to whether the Regulation 14 contain expressly or by necessary implication any limitation in respect of the plot on which extra F.S.I. to the extent of 0.4 can be availed of and utilised in lieu of surrender of the land for road widening or construction of new roads. It is far too obvious to count that Regulation 14 of the said Regulations does not contain any such limitation expressly or by necessary implication as is carved out for the first time, in the impugned directives Exhibit A and Exhibit B to the petition. If the plain language of Regulation 14 of Appendix VII is required to be considered as it should be, it follows that the said regulation does not restrict the availability and user of development right certificate or T.D.R. in lieu of surrender of land for road widening or construction of new roads, to the very plot of land of which the surrender land formed a part. The learned Counsel for respondent No. 1 has submitted that the intention and object of the Government in prodding for extra F.S.I. in lieu of surrender of land for road widening or construction of new road should be deduced from the scheme of Rule 10(2) of Development Control Rules, 1967. The learned Counsel for respondent No.1 submitted that the scheme and objective of 1967 Regulations and 1991 Regulations in this behalf is identical. Court did not agree. It is not possible to imply such a limitation on availability and user of extra F.S.I. of 0.4 in Regulation 14 of Appendix VII. Such an implication would be contrary to and inconsistent with plain language of Regulation 14 and its objective. The learned Counsel for the petitioner interpreted Regulation 14 of Appendix VII and Regulation 33(1) of the laid regulations in light of Rule 10(2) of 1967 Rules referred to hereinabove. The later art of Regulation 14 does use the words - According to sub-Regulation (1) of Regulation 33". The learned Counsel for respondent No.1 was right to a limited extent when le submitted that Regulation 14 of Appendix VII ought to be interpreted in light of the provisions of law contained in sub- Regulation (1) of Regulation 33. Sub-Regulation (1) of Regulation 33 confers two separate and distinct rights on the owner of the land and empowers the Municipal Commissioner to permit additional floor space index as let out in the first part of sub-Regulation (1) of Regulation 33 or in the form set out in he second part of sub-Regulation (1) of Regulation 33. By later part of sub- Regulation (1) of Regulation 33 it is clearly provided that the Municipal Commissioner may giant full F.S.I. on the land surrendered to the corporation to be used as a development right in accordance with the regulations governing transfer of development rights in Appendix VII. If the submission made by the Counsel for respondent No.1 is to be accepted, the second part of sub-Regulation (3) of Regulation 33 would have to be treated as otiose. In other words, the owner is entitled to use the extra F.S.I. on the remainder of the plot from which the land is surrendered for road widening or construction of new road up to limit of 40% of the area of the plot remaining after such surrender of the land or seek to obtain a development right certificates in full in respect of the land surrendered to the corporation for road widening or construction of new road and obtain transfer of such development right as provided in Regulation 8 of Appendix VII. Thus, the learned Counsel for respondent No. 1 does not appear to be right in respect of his interpretation of Regulation No. 33(1) also. The impugned directives are not in conformity with true interpretation of Regulation No. 33(1) or Regulation No. 14 of Appendix VII.

       On 25th March, 1991, the Development Control Regulations for Greater Bombay, 1991 came into force. The said regulations were duly sanctioned by the Government of Maharashtra in exercise of the powers conferred on it by sub-section (1) of Section 31 of Maharashtra Regional and Town Planning Act, 1966. On the said Regulations coming into force, the Development Control Rules, 1967 ceased to be operative. The Development Control Regulations for Greater Bombay, 1991 evolved a new scheme for grant of transferable development rights (T.D.R.) as more particularly set our in Regulation 34 and Appendix VII thereto. The Development Control Rules, 1967 did not contain any provision for the grant of transferable development rights. The relevant provisions of Development Control Regulations, 1991 are not thus comparable with the provisions of the Development Control Rules, 1967. The relevant regulations forming part of 1991 Regulations must be interpreted without any aid from 1967 Regulations. The object of 1991 Regulation was to make liberal provisions for transfer of development rights so as to encourage owners to surrender plots needed for road widening or road construction free of compensation.

       Section 154(2)-Development Control Regulations for Greater Bombay, 1991, Reg. 34, App. VII Reg. 14-State Government-Powers of-Whether can be exercised suo motu?

       Held; Section 154(2) of the Act provides that if in connection with the exercise of its powers and discharge of its functions by any planning authority any dispute arises between the planning authority and the State Government, the decision of the State Government on such dispute shall be final. The dispute between the State Government and the Municipal Corporation in respect of interpretation of Regulation 32(1) as well as Regulation 14 of Appendix VII is far too obvious. It would be too technical to contend that the State Government can exercise its powers of control to issue the necessary directives only if a specific reference is made by the State Government in respect of dispute pertaining to interpretation of Regulations. The State Government has ample jurisdiction to interpret the Regulations even in absence of specific reference by the planning authority and even suo mota and the clarificatory directives of the State Government are binding on the Planning Authority unless the directive issued by the Stale Government are shown to be contrary to law and quashed by the Court.