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2019 Supreme(Bom) 1166
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, SANDEEP K. SHINDE, JJ.
M/s. Cosmos Realtors Joint Venture Through Authorized Signatory Shri. Suraj Parmar and Ors - Petitioner
Versus
The Municipal Corporation for the City of Thane through the Commissioner and Ors - Respondent
Writ Petition No. 3991 of 2014
Decided On : 06-08-2019
Advocate Appeared:
For the Petitioner:Ms. Gauri Godse, Advocate
For the Respondent:Mr. Ajit Ram Pitale, Advocate, Ms. R.A. Salunkhe, AGP
Headnote:
Maharashtra Regional and Town Planning Act, 1966 – Section 45,126,126(1)(b) r/w (5)(6)(7),31(2) and 22(m) – construction - Property land - Built up area for purpose of FSI credit in the form of DRC shall be equal to the gross area of reserved plot to be surrendered and will proportionately increase or decrease according to permissible FSI of zone where from the TDR has originated - When an owner or lessee also develop or constructs amenity on surrendered plot at his cost subject to such stipulations as may be prescribed by Commissioner or appropriate authority, as case may be and to their satisfaction and hands over the said developed/ constructed amenity to Commissioner/ appropriate authority, free of cost he may be granted by Commissioner a further DR in form of FSI equivalent to area of the construction / development done by him, utilisation of which etc. will be subject to the Regulations contained in this Appendix - Petitioner has acquired development rights under the joint venture agreement of the property land - Respondent No. 1 is the Municipal Corporation for the city constituted under provisions of Bombay Municipal Corporation Act now known as Maharashtra Municipal Corporation Act, 1949 - Petitioner is challenging the order passed by the Corporation, by which petitioners application for grant of Transferable Development Rights (TDR), in form of Floor Space Index (FSI) has been rejected - Respondent-Corporation is refusing to issue Development Rights Certificate under the sanctioned Development Control Regulation in respect of the development of amenity space on the plot - Whether Corporation is justified in denying petitioners right to Additional Floor Space/TDR – Held, though it is contended by Respondent-Corporation that provision of Appendix court are not applicable to the facts of the case, learned counsel for the Respondent-Corporation could not point out from records or from provision of the law and /or regulations that amenity developed on the surrendered plot is converted from industrial zone to residential zone or that developer is not entitled to claim the additional FSI in terms of Clause (b) of Section 126(1) of the M.R.T.P. Act - It may also be stated that except of Respondent-Corporations statement in additional affidavit-in-reply, that subject plot was in the industrial zone and development proposal of petitioner was approved for converting industrial zone into residential zone, nothing has been placed on record in support of this contention - That even otherwise, permission/ Commencement Certificate (revised) concerning and relating to amenity plot does not even suggest that there was a conversion from industrial zone to residential zone - That even assuming, Respondent-Corporation converted plot from industrial zone to residential zone but that itself cannot be a valid ground / reason for denying the petitioner of his statutory right - For the reasons stated herein above, impugned order passed by the Respondent-Corporation is quashed and set aside and Respondent-Corporation is directed to grant additional TDR/ DRC to petitioner as claimed vide applications in accordance with law - Petition allowed.
JUDGMENT :
SANDEEP K. SHINDE, J.
1. Rule. Rule made returnable forthwith. With consent of the parties, petition is taken up for final hearing.
2. The short question in the present writ petition is, whether the petitioner is entitled to Transferable Development Rights (TDR) in form of Floor Space Index for development of the Amenity Space in terms of Clause 6 of Appendix 'W' of Development Regulation of Thane Municipal Corporation.
Clause 5 and 6 of the Appendix 'W' relates to grant of Transferable Development Rights (TDRs) to owners or lessee and condition for grant of such rights. Clause 5, 6 and 7 of the Appendix 'W' reads as under :
"5. The built up area for the purpose of FSI credit in the form of DRC shall be equal to the gross area of the reserved plot to be surrendered and will proportionately increase or decrease according to the permissible FSI of the zone where from the TDR has originated.
6. When an owner or lessee also develop or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction and hands over the said developed/ constructed amenity to the Commissioner/ appropriate authority, free of cost he may be granted by the Commissioner a further DR in the form of FSI equivalent to the area of the construction / development done by him, utilisation of which etc. will be subject to the Regulations contained in this Appendix.
7. A DRC will be issued only on the satisfactory compliance with the conditions prescribed in the Appendix.”
3. The petitioner has acquired development rights under the joint venture agreement of the property land bearing Gat No. 59A/20 and 59/28(part) aggregating to 12648.87 square meters at village Chitalsar Manpada, Thane (West). Respondent No. 1 (hereinafter referred to as Respondent-Corporation) is the Municipal Corporation for the city of Thane constituted under the provisions of Bombay Municipal Corporation Act now known as Maharashtra Municipal Corporation Act, 1949. Petitioner is challenging the order dated 27.01.2014 passed by the Corporation, by which the petitioner's application for grant of Transferable Development Rights (TDR), in the form of Floor Space Index (FSI) has been rejected. Thus, Respondent-Corporation is refusing to issue Development Rights Certificate (hereinafter referred to as “DRC”) under the sanctioned Development Control Regulation 1994 for the city of Thane (hereinafter referred to as “DC Rules”), in respect of the development of amenity space on the plot bearing Gat No. 59, Hissa No. 28 D/2 at Chitalsar Manpada, Thane (West).
4. In para no. 4 of the petition, petitioner states that on 20.03.2003 development permission under Section 45 of the Maharashtra Regional and Town Planning Act, 1966 (for short, M.R.T.P. Act) was granted by the Respondent-Corporation (V.P. No. 2003/37) upon certain terms and conditions. Condition No. (5) which is relevant in this case reads as under :
“Developer shall hand over amenity plot to the Corporation and amenity shall be developed free of costs.”
(emphasis supplied)
5. That in terms of the development permission and in pursuant to the aforesaid condition, petitioner has sworn an affidavit/ declaration and declared that in view of surrendering the property i.e. Gat No. 59/28 (Part) and Gat No. 59/20 (part), owner shall have no right and title therein. They further declared that the said property absolutely vests in Municipal Corporation of Thane, in terms of provisions of Section 126 of the M.R.T.P. Act. Thus, the Municipal Corporation has become absolute owner of the said property. This declaration has been registered with the Sub-Registrar on 25.03.2003, which is at page no. 31 of the paper book. It is further stated in para 9 that on 15.12.2004, the petitioner handed over the possession of the amenity space to the Municipal Corporation of Thane, the possession receipt/ note of which is at page no. 57
