JUDGMENT :

G.S. PATEL, J.

1. Rule. The pleadings are complete. Rule is made returnable forthwith and the matter is taken up for hearing and final disposal.

2. The Writ Petition under Article 226 of the Constitution of India seeks the following reliefs:

“(a) that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondents:

(i) to quash the order No. CHE/51211/DPWS/H & K dated 21st September 2016 at Exhibit-CC.

(ii) to forthwith sanction Petitioners plans for development of the said plot inter-alia modifying the computation of Amenity space by adjusting D.P. Road area of against total Amenity space areas as provided in DC Regulation 57(4)(c)(ii) and Note in respect of D.P. Road and make all consequential changes and grant all consequential benefits including TDR to the Petitioners.

(iii) to forthwith sanction Petitioners’ proposal by modifying computation of Amenity Space by adjusting D.P. Road Area against total Amenity space area for development of the subject plot under DCR 57(4)(c)(ii) and Note II appended thereto in accordance with the Judgment and orders of this Hon’ble Court in Writ Petition No. 651 of 2013 dated 13th March 2014 in Writ Petition No. 1885 of 2014 dated 27/10/2015.

(b) that this Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for papers pertaining to the decision of the Respondents in not granting Proposal of the Petitioners seeking adjustment of D.P. Road area against total Amenity Space area for development of the said plot under DC Regulation 57(4)(c)(ii) and Note appended thereto and after examining the validity propriety and legality of such decision quash and set aside the same.”

3. A brief introduction is necessary. The Petitioner, a corporation and earlier a partnership firm, is a builder and developer. It owns a plot of land of 6265.10 sq mts spread over several CTS Nos. at village Marol, Taluka Andheri, Andheri (East), Mumbai. As the prayers set out above show, the challenge in the Petition is to the refusal of the Respondents to grant the Petitioner the benefit of ‘setting off’ or adjusting a public amenity reservation against the reservation for a DP Road, both of which are on a part of the Petitioner’s land. The relevant regulation is Development Control Regulation (“DCR”) 57(4)(c)(i) and the Note below it.

4. In support of the submission that precisely such an adjustment or setting off is permissible, Mr. Kamat, learned Senior Counsel for the Petitioner, relies chiefly on two reported decisions namely Wadhwa Residency Private Limited and Others vs. Municipal Corporation of Greater Mumbai, 2014 SCC Online Bom. 354 : (2014) 4 Bom. C.R. 845 and Runwal Homes Private Limited and Another vs. Municipal Corporation of Greater Mumbai and Others, 2015 SCC Online Bom. 6573 both of which make specific reference to a DP Road. The third decision cited by Mr. Kamat is the order of the Supreme Court in a Special Leave Petition that the MCGM filed against the judgment and order in Runwal Homes.

5. It is not in dispute that the Petitioner has partly completed its proposed project and obtained several permissions such as a part Occupancy Certificate (“OC”) dated 2nd July 2018, an amended approval dated 15th January 2020 and a Commencement Certificate (“CC”) dated 20th July 2020. This CC, a copy of which is at Exhibit “C” at page 27 of the Interim Application, shows a note by the Municipal Corporation of Greater Mumbai (“MCGM”) that development permissions have been granted to the Petitioner ‘pending the delivery of possession of a 5% amenity space’ and, accordingly, ‘to the of extent 50% of that amenity space that is