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2014 Supreme(Bom) 954
High Court of Judicature at Bombay
ANOOP V. MOHTA & M.S. SONAK, JJ.
Natvar Parikh & Co. Pvt. Ltd.
Versus
The State of Maharashtra & Others
Writ Petition No. 451 of 2010
Decided On: 22-04-2014
For the Petitioner:Pravin Samdani, Senior Advocate, Kunal Vajani, Pranaya Goyal, Himanshu Vidhani/b. M/s. Wadia Ghandy & Co., Advocates.
For the Respondents:R1, D.A. Nalawade, GP , R2, R3, A.Y. Sakhare, Senior Advocate with Ms. Trupti Puranik
The main legal point established in the judgment is that municipal executive instructions/circulars cannot override statutory provisions, and respondents are bound by their own earlier orders and actions.
Headnote:
TDR - Construction and Development of Land - Maharashtra Regional & Town Planning Act, 1966 (MRTP) - Development Control Regulations for Grater Bombay, 1991 - The court discussed the provisions of the MRTP Act and the Development Control Regulations for Greater Bombay while considering the grant of additional Transfer of Development Rights (TDR) and observed that municipal executive instructions/circulars cannot override statutory provisions. The court relied on the Supreme Court judgment in Godrej and Boyce Manufacturing Company Limited Vs. State of Maharashtra & ors. (2009) 5 SCC 24) which directed the grant of 100% TDR for the construction of a road. The court found that the petitioner was entitled to the remaining 75% TDR based on the undisputed facts and the Supreme Court judgment.
Fact of the Case:
The petitioner, a construction and land development business, sought additional Transfer of Development Rights (TDR) from the Municipal Corporation for Greater Mumbai and its Executive Engineer for the balance 75% area after already being granted 25% TDR for the construction of a specified road. The respondents had not challenged the actual work done for the construction of the road.
Finding of the Court:
The court found that the petitioner was entitled to the remaining 75% TDR based on the undisputed facts and the Supreme Court judgment. The court rejected the respondents' attempt to reopen the issue and challenge the grant of TDR, emphasizing that the respondents were bound by their own earlier orders and actions.
Issues: The issues included the entitlement of the petitioner to the remaining 75% TDR, the respondents' attempt to deny the remaining TDR based on delay and laches, and the respondents' opposition based on alleged non-construction of the road.
Ratio Decidendi: The court held that the petitioner was entitled to the remaining 75% TDR as confirmed by the Supreme Court judgment and the respondents were bound by their own earlier orders and actions. The court also rejected the respondents' opposition based on delay and laches, emphasizing that the cause of action was still continuing and the petitioner's actions were not barred by limitation.
Final Decision: The court allowed the petition and directed the respondents to forthwith grant the additional TDR for the balance 75% area as prayed by the petitioner.
Anoop V. Mohta, J.
1. Rule, returnable forthwith. Heard finally.
2. The petitioner who is in business of construction and development of land has prayed to direct Respondent Nos.2 and 3 (the Municipal Corporation for Greater Mumbai and its Executive Engineer) to forthwith grant additional Transfer of Development Rights (for short TDR) / Development Right Certificate (for short, DRC) for the balance 75% area as set out in the Schedules annexed to the petition. Admittedly, the Respondents granted 25% TDR/DRC in lieu of the construction of the specified D.P. Road at village Borla, Dist. Ghatkopar Mankhurd Link Road, M/East Ward, Mumbai-400 003, on 11.7.2006 and 18.8.2007, mainly because there is no dispute and/or any challenge raised and/or made by the Respondents about the actual work done at the relevant time, in this regard. On the contrary, these facts are confirmed even by the Respondents in an affidavit dated 22.10.2010.
3. The Apex Court on 6.2.2009, in case of Godrej and Boyce Manufacturing Company Limited Vs. State of Maharashtra & ors. (2009) 5 SCC 24), after considering the provisions of the Maharashtra Regional & Town Planning Act, 1966 (MRTP) and the Development Control Regulations for Grater Bombay, 1991 (the Regulations) while dealing with the additional Floor Space Index (for short, FSI) or TDR and measure of determining equivalence for grant of additional FSI, observed that the Municipal executive instructions/circulars of Municipal Authorities are in no way override and/or supersede the statutory provisions, and thereby directed to grant 100% TDR, since the construction of the road was a condition for grant of 100% TDR.
4. The judgment/decision (supra) squarely covered and governed the undisputed facts on record so far as construction of road and the surrendered land for the same as recorded above. There is no dispute with regard to the provisions of law and the facts of providing 25% TDR as recorded above. The petitioner, therefore filed the petition on 3.2.2010, after 11 months. However, the submission is made by the learned senior advocate appearing for the Respondents-Corporation that no relief can be granted in view of delay and laches, apart from trying to reopen the issues on facts about the construction of DP Road, though the first affidavit so recorded above reflects no such ground and/or reason to deny the reliefs as contended before the Court first time.
5. There is nothing on record to show that they have challenged and/or taken any action and even revoke the order of 25% TDR already granted. We, therefore, not permitted the Respondents-Corporation to reagitate the issue on facts. Merely because the Respondents' Officers now for the first time tried to reopen the issue and/or challenge the grant of TDR/DRC in the year 2006/2007 by filing additional affidavit dated 25.01.2012, basically, also for the reasons that those applications were disposed of long back as recorded above. We are proceeding, at this stage, in view of the admitted position on record with regard to the grant of 25% TDR.
6. The question only remains is entitlement of the petitioner of remaining 75% of TDR/DRC as prayed. Having once granted benefit of 25% based upon the interpretation given by the Respondents, after verifying the factual position and the record and after issuing a completion certificate to deny remaining 75%, inspite of the Supreme Court judgment Godrej (Supra), is unacceptable. The fact that the Respondents have granted 25% of TDR itself justified and proved the case that the Petitioner developed the amenities on the surrendered land at its own cost and is entitled to additional amenities of the TDR for the same.
7. It is relevant to note that affidavit dated 22nd October 2010 filed by the Respondents and the averments made therein have never withdrawn and so also the action of grant of 25% TDR as recorded above. The Respondents unable to deny and/or distinguish the judgment Godrej (Supra) so declared about t
