IMPORTANT POINT
Entitlement to Transferable Development Rights (TDR) arises only upon land surrender, not application submission, as per the Maharashtra Regional and Town Planning Act.

JUDGMENT :

(Arif S. Doctor J) :

1. Respondent No. 1 (State) vide a Notification dated 16th November 2016 issued under the provisions of Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (‘MRTP Act’) sanctioned a modification to Regulation 34 of the Development Control Regulations 1991 inter alia by which grant of Transferable Development Rights (TDR) was regulated.

2. The Petitioners’ claim to be the owner of a plot of land bearing S. No.91, Hissa No.7/1/1 (part) and 7/1/2 (part), CTS No.612-B, Village Borla, Taluka Kurla, Mumbai Suburban District, admeasuring around 1777 Sq. Meters (‘the said plot’). The said plot was affected by a reservation for the purpose of a playground in the sanctioned Development Plan dated 25th March 1991 (DCR, 1991).

3. The Petitioners, on 24th January 2017, made an application (‘Petitioners’ Application’) for issuance of a Development Right Certificate (‘DRC’) by offering to hand over the said plot in terms of the said Notification. Respondent No. 3 (MCGM), however, failed to grant the Petitioners the benefit of incentive TDR under the said Notification, and it is thus that the present Writ Petition has been filed.

4. Before adverting to the rival contentions, it is useful to set out the following facts, which lie within a fairly narrow compass and are as follows, viz.

i. Since Respondent No. 3 (MCGM) had not taken a decision on the Petitioners’ Application, the Petitioners had initially approached this Court by filing Writ Petition (L) No. 2427 of 2017 (‘first Writ Petition’) in which the Petitioners had inter alia sought a direction that Respondent No.3 (MCGM) shall decide the Petitioners’ Application in accordance with the law. The first Writ Petition was disposed of vide an order dated 31st October 2017 by which the Respondents were directed to decide the Petitioners’ Application within three months of the said order, in accordance with law.

ii. Thereafter on 20th January 2018, Respondent No.3 (MCGM) issued a Letter of Intent (‘LoI’) to the Petitioners by which the Petitioners’ compliance on various points enumerated therein was sought for. It is the Petitioners’ case that vide a letter dated 3rd May 2018 addressed by the Petitioners’ architect to Respondent No. 3 (MCGM), the Petitioners had complied with requisitions contained in LoI.

iii. On 8th May 2018, the Development Control Regulations 2034 (DCPR 2034) were notified by Respondent No.1 (State of Maharashtra) under Section 37 of the MRTP Act.

iv. Since the Petitioners’ Application for DRC had yet not been granted, the Petitioners were constrained to file another Writ Petition being Writ Petition No.3346 of 2018 (‘second Writ Petition’). The second Writ Petition was disposed of by an order dated 11th March 2019, by which this Court inter alia directed Respondent No. 3 (MCGM) to issue the DRC to the Petitioners within a period of two weeks from the date of the said order.

v. On 22nd April 2019, Respondent No.3 (MCGM) issued to the Petitioners a DRC for an area of 3554 square meters of FSI of built-up area. However, no incentive TDR was granted to the Petitioners as per the said notification. The Petitioners thereafter made representations/requests to Respondent No.3 (MCGM) to grant the Petitioners an additional 20% incentive TDR equivalent to 355.4 square meters in accordance with Clause 4 of the said Notification since the Petitioners had applied for a grant of the DCR on 24th January 2017, which was within one year from 16th January 2016.

vi. Since the Petitioners’ representations/requests were not accepted/responded to by Respondent No .3 (MCGM), the present Petition came to be filed on 31st August 2019, in which the Petitioners had sought the following relief, viz.

“(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 Respondent Nos.3 to 7 to issue Development Rights Certificat