JUDGMENT

B. P. Colabawalla J. - Rule. Respondents waive service. By consent of parties, Rule made returnable forthwith and heard finally.

2. This Petition has been filed under Article 226 of the Constitution of India seeking a declaration that the Petitioner is entitled to Transferable Development Rights ("TDR") in the form of Floor Space Index ("FSI") equivalent to the area of the DP Roads developed and paid for respectively by the Petitioner. Reliefs are also sought for quashing the rejection by the Respondents to grant TDR to the Petitioner as well as for a direction against the Respondents to grant TDR in the form of FSI to the Petitioner equivalent to the area of the DP Roads developed and paid for by the Petitioner.

3. It is the case of the Petitioner that it is the owner of and otherwise well and sufficiently entitled to several pieces and parcels of the land admeasuring in aggregate to approximately 85,778 sq.mtrs. or thereabouts situated at village Dhokali, Thane (for short "the said property"). The Petitioner has inter alia developed a residential project by the name "Highland Residency" on the said property. A portion of the said property admeasuring 6913.21 sq.mtrs. or thereabout were reserved under the development plan of Thane for the purposes of a 25 meter wide development plan road admeasuring 4169.05 sq.mtrs (the first DP Road) and a 15 meter wide development plan road admeasuring 2744.16 sq.mtrs (the second DP Road). According to the Petitioner, since it has paid the entire amount to Respondent No.2 (Thane Municipal Corporation) for construction of the first DP Road and have also constructed the second DP Road (at their own cost) and thereafter surrendered the same to Respondent No.2, the Petitioner is entitled to TDR in the form of FSI equivalent to the area of the said two DP Roads. It is the case of the Petitioner that Respondent No.2 is under a statutory obligation to grant TDR in the form of FSI equivalent to the area of said two DP Roads respectively in terms of clause 6 of AppendixW to the Development Control Regulations for Municipal Corporation of the City of Thane, 1994 (for short "DCR, 1994") and the applicable provisions of the Maharashtra Regional Town Planning Act, 1966 (for short "the MRTP Act, 1966"). The Petitioner has requested Respondent No.2 to grant the aforesaid TDR to it and which request is rejected by Respondent No.2. It is on this basis that the present Petition is filed.

4. Before we advert to the legal submissions advanced by counsel on both sides, it would be necessary to set out some facts which are really undisputed. As mentioned earlier, the Petitioner is the owner of pieces and parcels of land admeasuring in aggregate approximately 85,778 sq. meters situated at Dhokali, Thane (the said property). Since the Petitioner wanted to develop the said property, the Petitioner, vide its proposal dated 27th November, 2000, submitted building plans to Respondent No.2 for residential development on the said property.

5. This Proposal of the Petitioner was sanctioned and plans for development were approved by Respondent No.2 on 14th December, 2000 on certain terms and conditions. One of the terms and conditions was that the said property was affected by the first DP Road and after construction of the same it was to be handed over by the Petitioner before granting the commencement certificate. Thereafter, on 23rd February, 2001 pursuant to an application bearing no. 6483 made by the Petitioner, Respondent No.2 amended the permissions with respect to the construction of the first DP Road and granted the first commencement certificate. The first commencement certificate issued by Respondent No.2 was on 16th March, 2001 which inter alia stipulated for construction of the first DP Road and stated that it was necessary to construct the first DP Road in the said plot of land along with work of the remaining road of the Thane Municipal Corporation on or before obtaining the Occupation Certificate.