2010 Supreme(Bom) 290

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE F.I. REBELLO & THE HONOURABLE MR. JUSTICE J.H. BHATIA
Municipal Corporation Of Greater Mumbai
Versus
Minister For Urban Development State Of Maharashtra & Others
WRIT PETITION NO. 2934 OF 1999 WITH WRIT PETITION NO. 1969 OF 1999
Decided on : 25-02-2010

Headnote:Bombay Town Planning Act, 1954 - Sections 22, 32, 34 and 53 - Maharashtra Regional and Town Planning Act, 1966, Sections 44, 47 and 85 - Development Control Regulations for Greater Bombay, 1991, Regulation 62(3) - Transfer of Development Rights (TDR) - Granted by Minister - Challenged by petitioner, Corporation - Contention, final plot of owners vested in Corporation free from all encumbrances as per Act 1954 but owners not claimed compensation even through it was determined under Section 34 of Act 1954 - And were it deemed to have lapsed - Held - TDR Rules made under Regulation 62(3) of DCR taken 14.2.1989 as cut off date, not applicable to plots which attained finality under Act 1954 - Circular issued under Regulation 62(3) of DCR not attracted to scheme finalised in 1963 under Act 1954 - Impugned order of Minister directing petitioner to grant - TDR to original owners not sustainable - Quashed and set aside - Writ petition by owners seeking directions to Municipal Corporation to implement order of Minister dismissed - However, they shall be at liberty to take appropriate steps to recover compensation - Writ petition by Corporation allowed. - Section 31(1) of the MRTP Act provides that the State Government may issue directions to the Planning Authority in respect of Development Plans and Section 154(1) provides that every Regional Board, Planning Authority and Development Authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of the Act. This is repository of the powers of the State Government to issue necessary directions from time to time. However, Senior Counsel for the petitioner vehemently contended that even if the State Government had powers to issue the circular, it could not have any application to the facts of the present case because the land had already vested in the local or Planning Authority and the rights of the original owner were determined by the award of the arbitrator passed in 1963 whereby the original owners could claim only two final plots and the compensation and nothing more. The two final plots were already allotted to them and the compensation amount was not claimed by them. Therefore, in lieu of that, compensation amount which was not claimed by them they could not claim any TDR on the basis of the said circular. On perusal of the said circular also, it becomes clear that it was not intended to make it applicable to the matters which had attained finality under the Bombay Town Planning Act. From the directions given in the said circular as quoted above, it would be clear that the TDR should be granted if possession of the land has been delivered by the owner where he has not received part of the full compensation under either MRTP Act, the BMC Act, private negotiations or under any Act time being in force within 12 years prior to 14.12.1989. The counsel pointed out that 14.12.1989 is the date when the draft Development Control Rules were notified. However, by the said circular, the Government fixed the cut-off date being 12 years prior to 14.12.1989. It shows that if the possession was delivered and compensation was not paid or received within 12 years prior to 14.12.1989, the TDR could be granted to the original owner. If any transaction was finalised prior to 14.12.1989, this circular could not have been applicable. Secondly, it is material to note that it was never the claim of respondent Nos. 3 to 9 that they had delivered possession of the land within 12 years prior to 14.12.1989. In fact, they had made an application under Section 44 of MRTP Act seeking permission for development of the said land and that application was rejected by the Municipal Corporation under Section 45 of the said Act. Therefore, they had preferred an appeal before the Government under Section 47. Thus, it is the case of the respondents Nos. 3 to 9 that they are still in possession of the said land and, therefore, they cannot claim benefit of the TDR as per the said circular.

       As pointed out earlier, the concept of TDR was brought for the first time in the Development Control Regulations For Greater Bombay, 1991. As per the circular dated 8.3.1995, the benefit of the same was given to the cases where the possession was delivered and no compensation was received within 12 years prior to 14.12.1989. Under the Bombay Town Planning Act, 1954, there was no such concept or provision for grant of TDR in lieu of the compensation. The Scheme in the present case was finalised in 1963 and the land vested in the Local Authority and the compensation was determined by the arbitrator under the Act in 1963 itself. The MRTP Act came into force on 13.12.1966 and the Bombay Town Planning Act was thereby repealed. Thus, the Bombay Town Planning Act, 1954 was not in force within 12 years prior to 14.12.1989. Further the circular issued and directions given therein under Regulation 62(3) would be final and binding on the concerned authorities on the interpretation of the provisions of the Regulations. The circular issued under Regulation 62(3) could not be applicable to the Scheme prepared, finalised and sanctioned under the Bombay Town Planning Act, 1954.

       It is material to note that according to the respondents Nos. 3 to 9, they were in possession of the land being final plot No. 286 and on that basis, they made an application for permission for development of the land under Section 44. After rejection of the same under Section 45, they preferred an appeal under Section 47. Section 47(2) provides that the State Government or the officer so appointed after hearing the appeal may dismiss the appeal or allow the appeal by granting permission unconditionally or subject to the conditions as modified. The Senior counsel for the petitioner contended that in view of this, the learned Minister could either dismiss the appeal or grant it unconditionally or subject to some conditions as that application and naturally the appeal was for permission for development but he could not give any other direction. The learned Minister had come to clear conclusion that the land had already vested in the Planning Authority and, therefore, permission for development could not be granted to the original owners. Having come to this conclusion, the learned Minister should have dismissed the appeal. The impugned order directing the Municipal Corporation to grant TDR to the original owners was beyond the scope of the appeal. It is contended on behalf of the respondents that the impugned order is in the nature of equitable order. However, as held by the Supreme Court in Laxminarayan Bhattad (supra) where there i conflict of law and equity, the law will prevail. as the legal right of the original owners has been finally determined by the order of the Arbitrator in 1963, no question of passing any order in equity would arise. In view of this legal position, the impugned order was clearly against the provisions of law and the scheme and beyond the powers of the Minister as the appellate Authority under Section 47 of the Act and, therefore, the impugned order is liable to be set aside.

       For the aforesaid reasons. Writ Petition No. 2934 of 1999 is hereby allowed, impugned order is hereby quashed and set aside and rule is made absolute.

       In view of the above order, writ petition No. 1969 of 1999 filed by the original owners seeking directions to the Municipal Corporation to implement the order of the learned Minister and to grant TDR does not survive and stands dismissed accordingly. However, they shall be at liberty to take appropriate steps to recover the compensation amount.