Back
2019 Supreme(Bom) 465
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, S.M. MODAK, JJ.
Nirmal Ujwal Credit Co-Operative Society (Limited, Nagpur) - Appellant
Vs.
State Of Maharashtra - Respondent
Writ Petition No. 728 of 2017
Decided on : 04-04-2019
Advocate Appeared:
Shrihari Aney, Adv., R.M. Pande, Adv., Ritu Kaliya, Adv., J.B. Kasat, Adv.
Headnote:
Maharashtra Regional and Town Planning Act, 1966 - Sections 126(1)(b) ,113A - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Sections 2(2) , 2(9-A) ,22 – Challenge – Suit for land – Sale Deed - Town Planning Department of Nagpur Municipal Corporation informing the petitioner-Society that in lieu of handing over of area of meter wide DP Road free of cost and free from all encumbrances as per conditions of no-objection petitioner-Society shall not be entitled to Transferable Development Rights - This communication was challenged before State Government and claim is rejected - Hence this petition challenging said communication and seeking further direction to respondents to release the Transferable Development Rights (TDR) and Floor Space Index (FSI) in lieu of surrender of rights in land for public purpose that is for construction of DP Road for Survey Nagpur – Held, Court are of view that grant of TDR under Section 126(1)(b) accrues or flows from surrender of area covered by Development Plan rights which is termed as the reservation for public purpose free of cost and free from all encumbrances - In absence of such surrender TDR is not available under said provision - Intention of the provision is to confer the additional benefit of grant of TDR upon landower by way of statutory provision - Surrender is without any option and in absence of any bargaining power with landowner - It is statutory grant - In Court view therefore argument on behalf of respondents based upon condition No in no-objection and condition No in sale-deed to surrender land under D.P. Road to Planning Authority free of cost would neither include the surrender of Transferable Development Rights nor can be construed to take away in any manner statutory rights conferred by provision of Section 126(1)(b) of the said Act - Landowner whose land is designated in development plan as reserved for any of purposes enumerated in Section 22 of Act or for any of the amenities as defined under Section 2(2) of the Act or Regulation 2(7) [sic Regulation 3(7)] of Regulations is not left with many options and he does not have same bargaining position as municipal authority - Therefore surrender of land in terms of clause (b) of Section 126(1) of Act cannot be subjected to any further conditions than those already provided for in statutory provisions - It is of course open to legislature to add to conditions provided for in statute - But it certainly cannot be left in hands of executive to impose conditions in addition to those in statutes for accepting offer to surrender designated land - Petition allowed
R.K. DESHPANDE, J.
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The challenge in this petition is to the communication dated 22.09.2014 issued by the Town Planning Department of the Nagpur Municipal Corporation (“the Planning Authority”) informing the petitioner-Society that in lieu of handing over of the area of 24-meter wide DP Road free of cost and free from all encumbrances as per the conditions of no-objection dated 11-10-2004, the petitioner-Society shall not be entitled to the Transferable Development Rights. This communication was challenged before the State Government and the claim is rejected on 28-10-2016. Hence, this petition, challenging the said communication and seeking further direction to the respondents to release the Transferable Development Rights (TDR) and Floor Space Index (FSI) in lieu of surrender of rights in the land for public purpose, that is for construction of DP Road for Survey Nos.15, 16, 18 and 20 of Houza Harpur on Umred Road, Nagpur.
3. On 14-1-2019, we heard the matter at length and passed the order, which is reproduced below :
“Heard the learned counsel appearing for the parties.
The Nagpur Municipal Corporation by its letter dated 11-10-2005 granted permission under Clause 2 of the Notification dated 18-9-2002 for sale of the land in question belonging to Nagpur Vinkar Sahakari Sut Girni Maryadit (Under Liquidation) - Mouza Harpur subject to certain conditions. The first condition imposed reads as under :-
“1. The lands are affected by 24.00 m. wide D.P. Roads. The land under D.P. Roads shall have to be surrendered to Planning Authority i.e. N.M.C. free of cost.”
The contention raised by Shri Aney, the learned Senior Advocate assisted by Shri Harode, Advocate appearing for the petitioner is that the aforesaid term which is also contained in the agreement of purchase of land by the petitioner does not create bar for claiming transferable development rights under Section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966. Shri Kasat, the learned Advocate for Nagpur Municipal Corporation submits that free of cost in terms of conditions No.1 reproduced above means free of TDR (Transferable Development Rights) also as contemplated under Section 126(1)(b).
The question requires consideration. Put up this matter on 14.02.2019 at 02.30 p.m. for final disposal by consent of the learned counsel appearing for the parties.”
4. In response to the petition and the order passed by this Court, the respondent No.2- Planning Authority has filed reply on affidavit opposing the claim made by the petitioner. The condition No.(1) in the no-objection dated 11-10-2004, which is also incorporated in Clause No.5(a) in the sale-deed dated 26-10-2004, under which the petitioner purchased the property in question in auction, relied upon by the respondent No.2, is identical. Hence, the same is reproduced below :
“The lands are affected by 24.00 m. wide D.P. Roads. The land under D.P. Roads shall have to be surrendered to the Planning Authority i.e. N.M.C. free of cost.”
It is urged that the petitioner-Society has waived its right to claim compensation in the land and has agreed to surrender it to the Planning Authority free of cost. According to the respondent No.2, the waiver of monetary compensation includes waiver of all rights available to the petitioner and hence the claim for grant of TDR based upon Section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966 (“the MRTP Act”) is not tenable.
5. Shri Aney, the learned Senior Advocate, has relied upon the decision of the Apex Court in the case of Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra and others, (2009) 5 SCC 24. The relevant portion relied upon contained in Para 64 is reproduced below :
“64. ... Therefore, surrender of the land in terms of clause (b) of Section 126(1) of the Act cannot be subjected to any further conditions than those alre
