IMPORTANT POINT
Acquisition of land—Grant of TDR cannot be confined only to cases of lands which have been reserved in development plan.

Headnote:(A) Maharashtra Regional and Town Planning Act, 1966—Section 126—Land Acquisition Act, 1894—Section 4—Acquisition of land—Public purpose—Grant of Transferrable Development Rights—Concept of TDR involves surrender of land reserved for various public purposes in development plan free of cost and in exchange thereof grant of TDR entitling holder thereof to construct built up area equivalent to permissible FSI of land handed over by him on one or more plots in zone specified—Such rights are transferable—Section 126 contemplates grant of TDR only against land acquired by agreement as distinguished from land which is acquired under Land Acquisition Act in exercise of powers under Section 126(1)(c)—Latter kind of acquisition i.e. under Land Acquisition Act by invoking Section 126(1)(c) of MRTP Act stands on a footing that is different and distinguishable from normal process of acquisition under Land Acquisition Act. (Paras 11 and 12)
       (B) Maharashtra Regional and Town Planning Act, 1966—Section 126—Land Acquisition Act, 1894—Section 4—Acquisition of land—Public purpose—Grant of Transferrable Development Rights—Claim rejected by State of Maharashtra on ground that land was acquired under a non-development plan proposal which would not attract provisions of MRTP Act—Grant of TDR cannot be confined only to cases of lands which have been reserved in development plan and not to lands acquired under Land Acquisition Act which land eventually becomes a part of finally approved and sanctioned development plan—If under DCR N-2.4.17, TDR can be granted in cases of acquisition under the MRTP Act acquisition under LA Act upon invocation of Section 126(1)(c) would be included—Reference to any other Act in DCR N-2.4.17 would include L.A. Act so as to bring land covered by normal process of acquisitions under L.A. Act within fold of DCR N-2.4.17—Acquisition of land belonging to respondent society would be clearly covered by provisions of DCR N-2.4.17— Rejection of claim of respondent Society to TDR under MRTP Act read with DCR N-2.4.17 is seriously flawed—Impugned order set aside and order passed by High Court affirmed. (Paras 13 to 17)
       (2004) 10 SCC 796 ; (2003) 5 SCC 413 ; 3.L Ed.2d. 1012—Relied.
       (1979) 3 SCC 489—Referred.
       Facts of case—
       Controversy in present appeals arises out of claim of the respondent-writ petitioner, a housing society, to Transferrable Development Rights (TDR) under relevant Development Control Regulations (DCR) i.e. N-2.4 framed under Maharashtra Regional and Town Planning Act, 1966. Claim has been resisted and rejected by Pune Municipal Corporation and State of Maharashtra on the ground that land in question was not reserved for public purpose in development plan prepared under MRTP Act. View of High Court being in favour of respondent (writ petitioner) society, Pune Municipal Corporation and State of Maharashtra have filed present appeals.
       Findings of Court—
       Present case discloses a somewhat disturbing course of action adopted by State in seeking to disown and challenge its own professed standards laid down in form of a DCR by tangentially contending the same to be incompetent in law. Such a course of action by State seeking to depart from its self-professed norms is neither permissible nor Court require to consider the same. DCR governing grant of TDR though may have gone beyond what is contemplated under MRTP Act State and its authorities cannot be permitted to request Court to collaterally adjudge the validity of norms laid down by State itself. It is for State to effect necessary corrections as deemed proper and not search for an escape valve through a judicial verdict. Such a course of action is jurisprudentially impermissible. So long as DCR holds field all executive actions must be within four corners thereof.

JUDGMENT

RANJAN GOGOI, J.

1. The controversy in the present appeals arises out of the claim of the respondent-writ petitioner, a housing society, to Transferrable Development Rights (TDR) under the relevant Development Control Regulations (DCR) i.e. N-2.4 framed under the Maharashtra Regional and Town Planning Act, 1966 (for short “the MRTP Act”). The said claim has been resisted and rejected by the Pune Municipal Corporation and the State of Maharashtra, the two appellants in the appeals under consideration, on the ground that the land in question was not reserved for a public purpose in the development plan prepared under the MRTP Act and being shown as an existing garden therein, the claim to TDR has no legal basis. There are additional grounds for the rejection, details whereof will be, noticed in the course of the narration to be made hereinafter. The land in question measured about 3.5 acres and was covered by Survey No.12 (Part) located at Kohdhava Khurd, Pune. The view of the High Court being in favour of the respondent (writ petitioner) society, the Pune Municipal Corporation and the State of Maharashtra have filed the two appeals in question.

2. The core fact that emerges from the multitude of collaterals and the exhaustive pleadings of the parties is that the land in question was shown by the respondent Society itself in the lay out plan submitted by it to the Pune Municipal Corporation, as reserved for garden. Acquisition of the said land was initiated in the year 1982 (28.01.1982) under the provisions of the Land Acquisition Act, 1894 and the same was completed in the year 1987 whereafter possession of the land was taken over on 19.02.1987. In the draft development plan dated 15.09.1982 that was prepared and published under the provisions of the MRTP Act, which was subsequently approved and sanctioned on 05.01.1987, the land was shown as an existing garden. The close proximity of time between the two parallel process is too significant to be overlooked. While according to the respondent-writ petitioner the stage and the manner of the inclusion of the land in the development plan is of no consequence to the issue arising i.e. entitlement to TDR, the State contends that the land was acquired under a nondevelopment plan proposal which would not attract the provisions of the MRTP Act.

3. The High Court took the view that it cannot be understood as to how there can be a difference between land “which was part of a development plan reserved by the Government or a part of the development plan submitted by the petitioner in which the land in question was shown as a garden”. Laying emphasis on the relevant DCR i.e. N-2.4.17(ii), the High Court took the view that no such distinction is disclosed therein and going by the language of the DCR the respondent Society was entitled to TDR as compensation for the land was not received by it. The High Court also noticed the various communications brought on record by the respondent-writ petitioner to show that, at different stages, the authorities of the Municipal Corporation as well as those of the State of Maharashtra had unequivocally indicated the entitlement of the respondent-writ petitioner to Transferable Development Rights. The High Court also held that the directions contained in Government Order dated 03.02.2007 to be contrary to DCR N-.2.4.17 which is an instance of exercise of statutory powers under the MRTP Act. The said G.O. dated 03.02.2007 had excluded the entitlement to Transferable Development Rights once an award had been made and possession of the land had been delivered as in the present case.

4. We have heard Shri V.A. Mohta, learned senior counsel and Shri Aniruddha P. Mayee, learned counsel appearing for the appellants and Shri Vinod Bobde and Shri Shekhar Naphade, learned senior counsels appearing on behalf of the respondents.

5. Assailing the order of the High Court, it is contended on behalf of the appellants that under Section 126 of the MRTP Act grant of

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2014 Supreme(SC) 724

SUPREME COURT OF INDIA RANJAN GOGOI, M.Y.EQBAL, JJ.PUNE MUNICIPAL CORPORATION & ANR. – APPELLANTSVERSUS KAUSARBAG COOP. HOUSING SOCIETY LTD. & ANR. – RESPONDENTSCIVIL APPEAL NO. 3008-3009 OF 2010 WITH CIVIL APPEAL NO. 4580 OF 2010 Decided On : 09-10-2014

IMPORTANT POINTAcquisition of land—Grant of TDR cannot be confined only to cases of lands which have been reserved in development plan.

Cases Referred (3)

SUPREME COURT OF INDIA
RANJAN GOGOI, M.Y.EQBAL, JJ.
PUNE MUNICIPAL CORPORATION & ANR. – APPELLANTS
VERSUS
KAUSARBAG COOP. HOUSING SOCIETY LTD. & ANR. – RESPONDENTS
CIVIL APPEAL NO. 3008-3009 OF 2010 WITH CIVIL APPEAL NO. 4580 OF 2010
Decided On : 09-10-2014

IMPORTANT POINT
Acquisition of land—Grant of TDR cannot be confined only to cases of lands which have been reserved in development plan.