Back
IN THE HIGH COURT OF BOMBAY
Sunil B.Shukre, Rajesh S.Patil, JJ.
Chhatrapati Rajaram Co-operative Housing Society Ltd - Appellant
Versus
Municipal Corporation of City of Pune - Respondent
Writ Petition No. 9392 of 2017
Decided On : 15-09-2023
TDR - Transferable Development Rights - Maharashtra Municipal Corporations Act, 1949; Maharashtra Regional and Town Planning Act, 1966; Development Control Rules for Pune - The court interpreted key provisions of the Maharashtra Municipal Corporations Act and the Maharashtra Regional and Town Planning Act, particularly focusing on the eligibility for Transferable Development Rights (TDR) when land is reserved for public purposes. The court emphasized that the absence of compensation and possession transfer by the Corporation entitled the petitioner to TDR, despite the Corporation's claims of existing use. The court's decision was influenced by the interpretation of 'existing or retention user' and the legislative intent behind compensation provisions.
Fact of the Case:
The petitioner-society sought a TDR certificate for land designated as a Development Plan Road, claiming it had not received compensation for the land taken for public use. The society had previously transferred rights to receive TDR to a construction company, which built a recreational hall for the society. The Corporation rejected multiple requests for TDR, citing existing use and retention user provisions.
Finding of the Court:
The court found that the petitioner-society was entitled to TDR as the land had not been taken into possession by the Corporation nor had any compensation been awarded. The court rejected the Corporation's arguments regarding delay and existing use, emphasizing the need for compensation when land is reserved for public purposes.
Issues: Whether the petitioner-society is entitled to TDR for land designated as a Development Plan Road despite the Corporation's claims of existing use and retention user. Whether the delay in filing the petition affects the entitlement to TDR.
Ratio Decidendi: The court held that the absence of compensation and possession transfer by the Corporation entitled the petitioner to TDR. The interpretation of 'existing or retention user' was crucial, as the land had not been declared a public street under the relevant provisions, thus allowing the petitioner to claim TDR.
Final Decision: The court allowed the petition, quashed the Corporation's rejections of TDR requests, and directed the Corporation to grant the TDR certificate to the petitioner within three months.
JUDGMENT/ORDER
SUNIL B.SHUKRE, J. - Heard. Rule. Rule made returnable forthwith, by consent of the learned counsel for the parties.
2. By this petition, the petitioner-society, which is owner of the land bearing Survey No.682/A, situated at Village Bibavewadi (Munjeri), Taluka Haveli, District Pune, is claiming relief of grant of TDR Certificate in favour of the petitioner in lieu of the land admeasuring 1206.61sq.mtrs. (hereinafter called as 'the subject land'), from out of the land bearing Survey No.682/A owned by the society, on the ground that the subject land has been used by the Planning Authority of respondent no.1 for the purpose of construction of a Development Plan Road.
3. The larger piece of land bearing Survey No.682/A was subjected to a layout plan by the petitioner and it was sanctioned on 9/7/1973. As a result of the sanctioning of the layout plan, land bearing Survey No.682/A came to be divided into several plots. The sanctioned layout plan also made a provision for internal roads. These internal roads were declared to be public streets in terms of the provisions of Sec. 224 of the Maharashtra Municipal Corporations Act, 1949 ("Corporation Act, 1949', for short), which covered an area of 4007.99 sq.mtrs. as per the Declaration dtd. 3/8/1973 and Certificate was issued in that regard on 4/9/1973. Their possession was also handed over to the Corporation.
4. As a later development, Government of Maharashtra sanctioned Development Plan for the City of Pune under Sec. 31 of the Maharashtra Regional and Town Planning Act, 1966 ("MRTP Act', for short). In this plan, land admeasuring 1206.61 sq.mtrs. from out of the larger piece of land bearing Survey No.682/A, called the subject land, was designated for the purpose of Development Plan Road ("D.P. Road' for short). It was a proposed D.P. road having width of 30 mtr.
5. On 29/9/2006, the petitioner transferred all its rights to receive and sell TDR in respect of the subject land in favour of M/s. Prathamesh Construction and in consideration thereof, M/s. Prathamesh Construction agreed to construct the recreational hall free of costs for the petitioner-society. It was accordingly constructed by it and its possession was delivered to the petitioner-society.
6. On 23/11/2006, in pursuance of the Agreement dtd. 29/9/2006, the Architect of the petitioner submitted a proposal to respondent no.1, thereby requesting it to grant the TDR contending that no award of compensation in respect of the subject land was passed by the competent authority. It appears that respondent no.1 referred the matter to its Legal Advisor for opinion and the Legal Advisor of respondent no.1 informed the respondent no.1 that the petitioner was entitled to get the Development Rights Certificate from the Corporation. Even the Assistant Engineer of Land Estate of respondent no.1 gave his report that upon obtaining possession of the subject land, compensation could be awarded to the petitioner. According to the petitioner, no compensation whatsoever had been awarded to it and this was also confirmed by the Special Land Acquisition Officer in his letter dtd. 22/7/2005 that insofar as the D.P. road in question was concerned, the petitioner had not been granted any compensation. The Deputy Commissioner, Land Acquisition, also gave his opinion that since the D.P. road had already been developed, compensation can be granted to the petitioner in accordance with law. The petitioner, all the while, had been claiming compensation in terms of grant of TDR, but, by the letter dtd. 10/12/2008 issued by the Assistant City Engineer of respondent no.1, the request of the petitioner for grant of the TDR was rejected on the ground that TDR could not be granted as per the provisions of Rule No. N.2.4.1(A) of Development Control Rules.
7. In response thereof, Power of Attorney Holder of the petitioner sent a letter to the Corporation making a request for supplying information about the manner in which compensation in respect of th
The main legal point established in the judgment is that the BBMP is not required to grant Transferable Development Rights (TDR) or compensation for the improvement of already existing roads unless n....
Town Planning – Cancellation of Transferable Development Rights Certificate long after surrender of land is not sustainable.
The right to Transferable Development Rights (TDR) for constructed amenities accrues at the time of land surrender, and amendments to regulations do not apply retrospectively, ensuring compensation r....
Point of Law : Right to property although is no longer a Fundamental Right after 42nd Amendment to the Constitution, it is constitutionally secured.
Reservation of land under the MRTP Act lapses if the land is not acquired within ten years from the date of publication of the final Development Plan and no declaration under Section 19 of the Act of....
Entitlement to Transferable Development Rights (TDR) arises only upon land surrender, not application submission, as per the Maharashtra Regional and Town Planning Act.
Owner of land is under obligation to develop or construct amenity on surrendered land at his cost and Planning Authority has to reciprocate the same by granting Additional FSI or Additional TDR.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
