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IN THE HIGH COURT OF BOMBAY
M.S. Shah and M.S. Sanklecha, JJ.
D.B. Realty Limited and Ors. - Appellants
Vs.
State of Maharashtra and Ors. - Respondents
Writ Petition Nos.366, 1419, 2532 and 4445 of 2014 and Writ Petition (L) Nos.1035 and 1040 of 2014
Decided On : 05.02.2015
MRTP Act - Validity of Notification - Section 37(1AA) - Summary of Acts and Sections
Fact of the Case:
The petition challenges the validity of a notification issued by the State of Maharashtra under Section 37(1AA) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act). The notification mandates the provision of affordable housing on land measuring 4000 sq.mts. or more for residential purposes.
Finding of the Court:
The court found that the impugned notification was within the legislative competence of the State and did not violate the MRTP Act. It held that the notification did not amount to compulsory acquisition and was not ultra vires the MRTP Act. The court also rejected the argument that the notification violated Article 19(1)(g) and 300A of the Constitution of India.
Issues: 1. Whether the provisions of the impugned amendment amount to compulsory acquisition? 2. Whether the provisions of the impugned amendment are ultra vires the MRTP Act? 3. Whether the provisions of the impugned amendment are violative of Articles 14, 19(1)(g) and 300A of the Constitution of India?
Ratio Decidendi: The court held that the impugned notification did not amount to compulsory acquisition and was within the legislative competence of the State. It also found that the notification was not ultra vires the MRTP Act and did not violate constitutional provisions.
Final Decision: The court dismissed the petitions challenging the validity of the notification.
M.S. Sanklecha, J.
1. This petition under Article 226 of the Constitution of India assails the validity of the Notification dated 8 November 2013 issued by the State of Maharashtra (State) in exercise of its powers under Section 37(1AA) of the Maharashtra Regional Town Planning Act, 1966 ("MRTP Act").
2. The impugned notification contains two schedules, one applicable to the City of Mumbai and other applicable to Municipalities within the State of Maharashtra. The impugned notification issued under the MRTP Act incorporates the Schedules thereto in the Development Control Regulation, 1991 (DCR 1991) as regulations for inclusive housing. The aforesaid amendment to DCR 1991 is applicable to the lands admeasuring 4000 sq.mts. or more to be utilized for residential purposes. In these group of petitions, we are concerned with both the Schedules to the Notification one-issued for the City of Mumbai and the other for the rest of the State. The schedules are identically worded and are being considered herein.
3. For the sake of convenience we would refer to facts in Writ Petition No. 366 of 2014 as a lead Petition. In the context of those facts we shall dispose of these group of petitions.
The petitioner carries on business of real estate development. The Petitioner inter alia owns immovable properties of more than 4000 sq.mts. The said land is in the city of Mumbai. The Petitioner is developing and/or proposing to develop the said lands for building of residential tenements. For the purpose of developing the said land, the petitioner would require permission from the Municipal Corporation of Greater Mumbai for the development of its land which would only be granted upon the petitioners complying with the impugned notification dated 8 November 2013.
The same position would apply to lands situated outside Mumbai while obtaining permission from the concerned Municipality.
4. The Schedule to the impugned notification dated 8 November 2013 by which the DCR 1991 is amended reads as under:
"Regulation for Inclusive Housing
(1) (a) For the sub-division or layout of the land admeasuring 4000 sq.mt. or more for residential purpose, minimum 20% of the net plot area shall have to be provided-
(i) either in the form of developed plots of 30 to 50 sq.mt. Size for Economically Weaker Sections/Low Income Groups (EMS/LIG), (hereinafter referred to as "affordable plots") in which plots of 30 sq.mtr. Size shall be kept for EWS.
Or
(ii) in the form of equivalent 20% net plot area for constructing EWS/LIG tenements, which area shall be handed over to MHADA at the land rate prescribed in the Annual Statement of Rates prepared by the Inspector General of Registration, Maharashtra State, Pune (hereinafter referred to as ASR) of the year in which final approval is accorded to such subdivision or layout.
(b) The Landowner/Developer shall sell the affordable plots to MHADA at one place in lieu of equivalent FSI to be utilised in the remaining plots. If MHADA declines to purchase the same within a reasonable time of six months, he can sell the affordable plots in the open market, in such case additional FSI of affordable plots shall not be admissible.
(2) For a plot of land, admeasuring 4000 sq.mt. Or more to be developed for a Housing Scheme consisting of one or more buildings (hereinafter referred to as 'the said Scheme'), EWS/LIG Housing in the form of tenements of size ranging between 30 to 50 sq.mt. (hereinafter referred to as 'affordable housing tenements') shall be constructed at least to the extent of 20% of the basic zonal F.S.I., subject to the following conditions:-
(a) The built up area of the EWS/LIG tenements constructed under the Scheme shall not be counted towards F.S.I.
(b) The Landowner/Developer shall construct the stock of the affordable housing tenements in the same plot and the Planning Authority shall ensure that the Occupation Certificate for the rest of the development under the said Scheme is not issued till the Occupation Certificate is issu
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