Bombay High Court
Asha Sunil Zawar vs The State Of Maharashtra And ... on 27 October, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
90.21ra
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 REVIEW APPLICATION (CIVIL) NO.90 OF 2021
IN WP/5938/2020 WITH CA/11774/2021 IN WP/5938/2020
ASHA SUNIL ZAWAR
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Mr M. S. Kulkarni, Advocate h/f Mr A. R. Syed, Advocate for
applicant;
Mr S. G. Sangle, A.G.P. for respondent No.1
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 27th October, 2021
PER COURT:
1. The learned Advocate for the original petitioner brings to
our notice a judgment delivered by the Hon'ble Supreme Court of
India in Pune Municipal Corporation and another Vs.
Kausarbag Co-operative Housing Society Ltd., 2015 AIR
(SCW) 2230 and he specifically points out paragraph Nos.11 and
12 of the said judgment, which read as under :
"11. The concept of TDR was introduced for the first
time in the MRTP Act in the year 1993 by an
amendment of Section 126(1)(a), (b) and (c) of the
MRTP Act. The modalities for grant of TDR were
brought into force by the amended Development
Control Regulation (for short DCR) N-2.4 with effect
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from 5.6.1997. In its simplest form, the concept of TDR
involves the surrender of land reserved for various
public purposes in the development plan free of cost
and in exchange thereof grant of TDR entitling the
holder thereof to construct a built up area equivalent
to the permissible FSI of the land handed over by him
on one or more plots in the zone specified. Such rights
are transferable. The object behind introduction of
TDR, as admitted by the Pune Municipal Corporation
in its various publications, was to meet the situation
faced by the Corporation on being called upon to make
payment of over Rs.1500 crores to take over different
sites measuring about 600 hectares which had been
reserved for different public purposes in the
development plan.
12. Strictly construed it is the provisions of the Section
126 (1)(a) read with (b) of the MRTP Act, extracted
earlier, which contemplate grant of TDR and that too
only against land acquired by agreement as
distinguished from land which is acquired under the
Land Acquisition Act in exercise of powers under
Section 126(1)(c). The latter kind of acquisition i.e.
under the Land Acquisition Act by invoking Section
126(1)(c) of the MRTP Act however stands on a
footing that is different and distinguishable from the
normal process of acquisition under the same Act i.e.
the Land Acquisition Act. This is because in an
acquisition under the Land Acquisition Act made in
exercise of power under section 126(1)(c) of the MRTP
Act, the provisions of Section 4 and Section 5A of the
L.A. Act are dispensed with and straightway a
notification under Section 6 is to be issued. The market
value of the land, though sought to be acquired under
the Land Acquisition Act, is pegged to the date of
publication of the interim or draft development plan,
as may be, and not to the date of publication of the
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notification under Section 4 of the Land Acquisition
Act. The above is a subtle but vital difference between
the ordinary and normal process of acquisition under
the Land Acquisition Act and the process of acquisition
under the same Act but in exercise of powers under
Section 126(1)(c) of the MRTP Act that needs to be
kept in mind."
2. Issue notice to the respondents in the Civil Application as
well as the Review Application, returnable on 25/11/2021. The
learned A.G.P. waives service of notice on behalf of respondent
No.1.
3. Since we are considering the Review Application in view of
the various judgments cited by the applicant, we find it
appropriate to hold that our judgment dated 16/09/2021, will not
be acted upon, until further orders.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
sjk
