Absence of agreement for TDR/FSI necessitates monetary compensation under the 2013 Act, as lawful acquisition processes were not followed.

JUDGMENT :

Advait M. Sethna, J.

1. Rule, returnable forthwith. The respondents waive service. By consent of the parties, heard finally.

2. This petition is filed under Article 226 of the Constitution of India for the following substantive reliefs:-

“(b) That the Hon’ble High Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ/ Order/direction to the Respondent No.1 be directed to acquire the land of the Petitioner under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in the absence of agreement in regards to acceptance of TDR/FSI and pay them monetary compensation.

(c) That the Hon’ble High Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ/Order/direction direct the Respondent Nos.1 to 3 not to disturb the peaceful possession of the Petitioner till the monetary compensation is paid to the Petitioner.”

A) Issues Before the Court:

3. The legal issue which arises for consideration in this petition, revolves around the legality of the impugned order dated 23 July 2024 (“Impugned Order” for short) passed by respondent no. 1 whereby it refused to grant compensation to the petitioner as prayed for and holding that the petitioner is entitled only to TDR/FSI rights as set out in the impugned order. Petitioner questions the validity and legality of the rejection of the petitioner’s claim to monetary compensation under provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“the 2013 Act” for short) to be read with the relevant provisions of the Maharashtra Regional Town Planning Act (“MTRP Act” for short).

(B) Factual Matrix:

The relevant facts necessary for adjudication of the present proceedings are :-

4. The petitioner is a proprietary concern of one Shri Hemant Mali, residing at taluka Dahanu, District Palghar. The petitioner is in the business of a Cinema Talkies as the cause title indicates. The respondent no. 1 is the Chief Officer of the Dahanu Nagar Parishad. The respondent no. 2 is Dahanu Nagar Parishad. The respondent no. 3 is the State of Maharashtra.

5. The petitioner has contended that Purnima Talkies was constructed on an area admeasuring about 3027 sq. meters and situated in Survey no. 7 (“The Subject Property/Land” for short) near Par Naka at Dahanu. The land in question, is stated to be have vested in the sole proprietor of the petitioner, pursuant to the grant of Sanad dated 1 October 1939, in favour of the late maternal grandfather of the petitioner, namely, Shri Jamu Damu Mali, the ancestors of the petitioner. Thereafter, along with Purnima Talkies there was a stall and a toilet constructed on the Subject Land/Property. The names of all legal heirs of the petitioner were mutated to the revenue records.

6. By a letter dated 22 April 1993, the petitioner was granted a permission by respondent no. 2 to construct a compound wall, for purposes of protection of the subject land, by removing the barbed wire fencing. Such permission was granted pursuant to an application of the petitioner dated 14 April 1993.

7. It was on 13 February 2019, that one Mr. Yash Dhanesh Mali, nephew of the sole proprietor of the petitioner, who applied to respondent no. 1 for seeking permission to build and start an auto service station on the subject land. However, such application remained to decide