A.S. OKA, J.

OVERVIEW

The issue involved in these petitions is concerning the interpretation and implementation of the decision of the Apex Court in the case of Godrej & Boyce Manufacturing Co.Ltd. v. State of Maharashtra and others, 2009 (5) SCC 24. The said decision of the Apex Court dealt with Regulation 34 read with paragraph-6 of Appendix-VII to the Development Control Regulations for Greater Bombay, 1991 (for short “the DCR”). In case of some of the petitioners, they were holding plots of land shown reserved in the sanctioned development plan under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”) which were reserved Development Plan Road (for short “DP Road”) and other purposes. The petitioners constructed DP Roads at their own cost and voluntarily surrendered the reserved lands to the Municipal Corporation of Greater Mumbai (for short “the said Corporation”). In view of surrender of the reserved lands, in terms of clause (b) of sub-section (1) of section 126 of the MRTP Act read with Regulations 33 and 34 as well as clause (5) of Appendix-VII of DCR, the petitioners were granted Floor Space Index (FSI) and/or Transferrable Development Rights (TDR) in the form of Development Rights Certificates (DRC) equal to the gross area of the plots surrendered by them. Paragraph-6 of Appendix-VII (prior to its amendment) provided that when an owner or a lessee also develops or constructs the amenities on the surrendered plot at his own cost and hands over the developed/constructed amenity to the Municipal Commissioner of the said Corporation, he is entitled to DRC in the form of FSI or TDR equivalent to an area of construction/development done by him. The word “amenity” has been defined in sub-section (2) of section 2 as well as clause (7) of Regulation 3 of DCR. Circulars were issued on 9th April 1996 and 5th April 2003. The first circular provided that DRC equivalent to 15% area of the area of DP Road constructed by the owner or lessee on the surrendered plot will be provided when the owner or lessee surrenders developed amenity together with the reserved plot. By circular dated 5th April 2003, in case of lands reserved for DP Road or set back area, the figure 15% was enhanced to 25%.

2. The contention before the Apex Court in case of Godrej & Boyce Manufacturing Co. Ltd. (supra) was that the DCR is a subordinate legislation and the circulars were contrary to paragraph-6 of Appendix-VII of DCR which did not limit DRC to 15% or 25%. The Apex Court held that the use of word “equivalent” in paragraph-6 of Appendix-VII would entitle the owner or lessee to 100% FSI or TDR for the construction of amenity at his cost. Thus, FSI or TDR for construction of an amenity like a road will not be confined to 15% or 25% of DP Road area and it will be equivalent to 100% of the area of the road developed by the owner or the lessee.

3. In these petitions as filed, initially, there was a claim made on the basis of the decision in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra) followed by further decisions of the Apex Court and this Court. The grievance is about the refusal by the said Corporation to grant 100% additional TDR equivalent to the area of amenity developed.

4. On 16th November 2016, DCRs were amended by the State Government by exercising the power under clause (c) of sub-section (1AA) of section 37 of the MRTP Act. By the said notification, Regulation 34 of DCR was amended. The modifications in DCR as mentioned in the schedule to the said notification were made. Clause (4.2) of the schedule provides for grant of TDR against construction of amenity. This brought about a major change to provision of paragraph-6 of Appendix-VII. In fact, Appendix-VII was obliterated from DCR.

5. By way of amendment to some of the petitions, the said notification dated 16th November 2016 was su