IMPORTANT POINT
A Writ cannot create a legal right; it can only enforce an already established right. Entitlement under new regulations requires compliance with specific conditions, which were not met in this case.

JUDGMENT :

KAMAL KHATA, J.

1. By this Writ Petition, filed under Article 226 of the Constitution of India, the Petitioner 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 to declare that the Petitioner is entitled to land Transferable Development Rights (TDR) in the form of Development Rights Certificates (DRC) under all three Tripartite Agreements in respect of land surrendered under the Scheme in accordance with DCPR 2034 i.e. at twice the land area (as per Sub-Clause 4.1.1 of Regulation 32 in Table)

(b) 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, directing the Respondents to issue a recommendation letter to MCGM for release and issuance of DRCs for Land TDR to the Petitioner for the entire land area at the rate specified in DCPR 2034 i.e. the DRCs for the balance land TDR of 19,436.24 sq. meters and also to direct the Respondents to permit the Petitioner the DRC so issued to be utilized as per DCR 1991 as the said Scheme is permitted to be completed in accordance with DRC, 1991 as per sub-clause 11.2 (1) of Regulation 33 (10) of DCPR 2034.

(c) 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, directing the Respondents to issue a DRCs for Land TDR to the Petitioner as set out in prayer clause (a), (b) and (c) above.

(d) that pending the hearing and disposal of the Petition the Respondents be directed by an interim order to issue or arrange for the MCGM to issue DRCs for Land TDR to the Petitioner for the entire land area at the rate specified in DCPR 2034 ie the DRCs for the balance land TDR of 19,436.24 sq. meters as set out in prayer clause (a) and (b) above within a period of no more than four weeks from the date of such order passed by this Hon’ble Court;

(e) for costs.

(f) for such further and other reliefs, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

BRIEF FACTS:

2. Petitioner is a developer and Constituted Attorney of the original landowner, a textile processing corporation, which offered 37,935 square meters of land at village Goregaon, Oshiwara District Centre, for a Slum Rehabilitation Scheme specifically for construction of tenements for ‘Project Affected Persons’ (PAPs) in accordance with clause 3.11 of Appendix IV of Development Control Regulations (DCR) 1991, Regulation 33 (10).

2.1 The said land, forms part of the notified Oshiwara District Centre area, for which the Petitioner’s Slum Rehabilitation Scheme (SR Scheme) was approved by the MMRDA, designated as a Special Planning Authority under Section 40 of the MRTP Act, 1966 .

2.2 The Petitioner executed a Tripartite Agreement dated 5th August 2003 for development of the SR scheme under which the Petitioner agreed to construct and provide tenements to PAPs identified by the Respondent No. 2 for rehabilitation of slum dwellers from the area required to be cleared for the Mumbai Urban Infrastructure Project (“MUIP”). As consideration, the Respondent No. 3 agreed to grant DRCs as per DCR 33 (10) read with clauses 3.11, 3.5 and 3.19 (II) of Appendix IV of DCR 1991.

2.3 During the project’s implementation, the Petitioner acquired development rights of the adjoining lands admeasuring 11,165.1 sq. mts and submitted a revised proposal to the MMRDA for including it in the earlier sanctioned scheme making it to a total of 49,100.4 sq.mts of land. The MMRDA accorded its sanction to the revised scheme and issued a revised Letter of Intent (LOI) on 20th June 2005. Pursuant to the issuance of the revised LOIs’, two further Tripartite Agreements, dated 12th August 2005 and 17th August 2005