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2019 Supreme(Bom) 472
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, B.P. COLABAWALLA, JJ.
Krishna Gopal Palande - Appellant
Vs.
Mira Bhayandar Municipal Corporation - Respondent
Writ Petition No. 10146 of 2017
Decided on : 04-04-2019.
Advocate Appeared:
Vijay D Patil, Adv., Sandeep A Kocharekar, Adv., Nikhil Chavan, Adv., N.R. Bubna, Adv.
Headnote:
Development Control Regulations - Rule 9 - Petitioner has set out as to how petitioner acquired development rights of old Survey No, new Survey square meters; old Survey No, new Survey admeasuring square meters; No. admeasuring square meters; and admeasuring square meters situated at village and within local limits of respondent-Corporation - It is thereafter averred in petition that te petitioner entered into a Development Agreement with registered owners who had assigned development rights in respect of above-mentioned properties to petitioner on terms and conditions, more particularly set out in Development Agreement - Original owners also executed an Irrevocable Power of Attorney in favour of petitioner - Development Agreement as well as Irrevocable Power of Attorney are duly registered on July, 2006 with the office of Sub-Registrar of Assurances, Thane- It is therefore contention of petitioner that by virtue of rights conferred under said Development Agreement read with Irrevocable Power of Attorney petitioner is absolutely seized and possessed of and well sufficiently entitled to said properties - Petitioner office of respondent-Corporation and requested them to grant necessary TDR/DRC, without any success - It is in these circumstances that petitioner vide his Advocate’s notice called upon the respondent-Corporation to grant TDR/DRC for an area admeasuring square meters to petitioner within 15 days from date of receipt of said notice - Whether the petitioner is entitled for any TDR/DRC for constructing parking lot building (constructed amenity) and handing over same to respondent-Corporation- Whether thereafter petitioner is entitled to TDR/DRC for constructing a parking lot building on the said reserved land for benefit of respondent-Corporation and handing over same to them - Whether petitioner can take advantage of the Notification which relates to Regulations for grant of Transferable Development Rights – Held, Narrow dispute in present writ petition is whether petitioner is entitled for any TDR/DRC for constructing parking lot building (constructed amenity) and handing over same to respondent-Corporation - It cannot be disputed that this parking lot building is an amenity constructed by petitioner free of cost and handed over to respondent-Corporation - As mentioned earlier out of total areas that were given for development by original owners to the petitioner a certain portion was reserved for a parking lot - This reserved portion was surrendered to the respondent-Corporation and compensation for the same was also given to the petitioner by granting FSI admeasuring square meters. Question that arises here is whether thereafter the petitioner is entitled to TDR/DRC for constructing a parking lot building on said reserved land for = benefit of the respondent-Corporation and handing over same to them - Equally Court find that the reliance placed by the respondent-Corporation on condition No. in Commencement Certificate is wholly misplaced - Firstly, such a condition cannot displace the statutory provisions which are contained in Development Control Regulations and more particularly Regulations 33 (6) and (7) of Appendix (IV) - This is also correctly understood by respondent-Corporation in view of the fact that despite this condition being inserted way back as on 5th August, 2010 respondent Corporation itself entered into a DOA dated 4th September, 2015 with petitioner which clearly records that for construction of parking lot building petitioner would be entitled to TDR/FSI credit - This being case Court find that placing reliance on condition No.36 in the Commencement Certificate dated 5th August, 2010 does not carry the case of respondent/Corporation any further. - However, utilization of such TDR shall be allowed as per these Regulations only - In other words, what clause 8 stipulates is that where a DRC has already been issued then inter alia calculation for granting TDR cannot be done under these Regulations but utilization of such TDR shall be allowed as per what is stated in said Regulations only - Writ Petition is accordingly disposed of
B.P. COLABAWALLA, J.
1. Rule. Respondent waives service. By consent of parties, rule made returnable forthwith and heard finally.
2. This writ petition has been filed seeking a direction against the Mira Bhayandar Municipal Corporation (the respondent herein) to grant “Transferable Development Rights” (TDR) or a “Development Rights Certificate” (DRC) in respect of an area admeasuring 5349 square meters. This TDR/DRC is claimed by the petitioner on the basis that the petitioner, on the instructions and directions of the respondent-Corporation constructed a separate parking lot building admeasuring 3873.87 square meters (for convenience called the “said constructed amenity” or “constructed amenity”) and handed over possession of the same to the respondent-Corporation on 12th January, 2016. According to the petitioner, as per the Deed of Assignment entered into between the petitioner and the respondent-Corporation dated 4th September, 2015 as well as Regulation 33 (6) of the Appendix IV of the Development Control Regulations of the respondent-Corporation, the petitioner was entitled to TDR for the said constructed amenity, namely, the parking lot building.
3. Before we advert to the legal submissions canvassed by both the parties, it would be apposite to set out a few facts. According to the petitioner, the land bearing old Survey No. 387, new Survey No.158, Hissa No. 2, 5,7 and old Survey No.388, new Survey No. 156, Hissa No. 13 are reserved for a parking lot bearing Reservation No. 264-A as stipulated in the Development Plan of the respondent-Corporation (hereinafter referred to as “the said land”).
4. In Paragraph Nos. 3 and 4 of the petition, the petitioner has set out as to how the petitioner acquired development rights of old Survey No.388, new Survey No. 156, Hissa No.13, admeasuring 1190 square meters; old Survey No. 387, new Survey No.158, Hissa No.7 admeasuring 4270 square meters; Hissa No. 2 admeasuring 2340 square meters; and Hissa No.5 admeasuring 250 square meters situated at village Navghar, Bhayandar and within the local limits of the respondent-Corporation. It is thereafter averred in the petition that the petitioner entered into a Development Agreement dated 14th July, 2006 with the registered owners who had assigned development rights in respect of the above-mentioned properties to the petitioner on the terms and conditions, more particularly set out in the Development Agreement. The original owners also executed an Irrevocable Power of Attorney in favour of the petitioner. The Development Agreement as well as the Irrevocable Power of Attorney are duly registered on 14th July, 2006 with the office of the Sub-Registrar of Assurances, Thane-4. It is therefore the contention of the petitioner that by virtue of the rights conferred under the said Development Agreement read with the Irrevocable Power of Attorney, the petitioner is absolutely seized and possessed of and well sufficiently entitled to the said properties.
5. According to the petitioner this is fortified by the fact that for development of the aforesaid properties, the respondent also, vide their letter bearing No. MBMC/TP/3346/2007-08, granted a Commencement Certificate for construction of buildings on the above mentioned properties. Thereafter, the respondent-Corporation issued a Letter of Intent (LOI) vide order bearing No.MBMC/TP/3781/09-10 dated 25th January, 2010 wherein the petitioner was informed that instead of providing a parking lot on the ground floor, the petitioner should provide a separate building for a parking lot (constructed amenity) to the respondent-Corporation as per the Development Control Regulations. Accordingly, as per the Revised Building Plan dated 5th August, 2010 approved by the respondent-Corporation, an area admeasuring 3740 square meters was reserved for parking reservation No. 264-A [i.e. building for parking
