Bombay High Court
Arvind Kashinath Dadarkar And Ors vs Municipal Corporation Of Gr. ... on 20 October, 2022
Bench: R.D. Dhanuka, Kamal Khata
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KANCHAN Digitally signed by
KANCHAN VINOD IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VINOD MAYEKAR
ORDINARY ORIGINAL CIVIL JURISDICTION
Date: 2022.10.20
MAYEKAR 18:37:06 +0530
WRIT PETITION NO. 411 OF 2013
1. Arvind Kashinath Dadarkar, )
2. Manohar Kashinath Dadarkar, )
3. Sanjay Kashinath Dadarkar, )
through their Power of Attorney )
holder Ashok Jain, Age 49 years, )
Occupation : Business, residing at )
11/88, Navjyot Co-op.Hsg. Society, )
Unnat Nagar II, M.G.Road, )
Goregaon (W), Mumbai - 400 062 ) ..... Petitioners
VERSUS
1. Municipal Corporation of Greater)
Mumbai, )
a Corporation incorporated under )
the Bombay Municipal Corporation)
Act, 1888, through its Secretary, )
having office at Mahapalika Bhavan,)
Mahapalika Road, Fort, )
Mumbai 400 001 )
2. Commissioner for Greater Mumbai)
Municipal Corp. of Mumbai, )
having office at Mahapalika Bhavan)
Mahapalika Road, Fort, )
Mumbai 400 001 )
3. State of Maharashtra, )
Through Secretary, Mantralaya, )
Mumbai 400 032 )
4. Arvind Kashinath Dadarkar, )
4-a) Jayesh Arvind Dadarkar, )
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4-b) Ajay Arvind Dadarkar, )
4-c) Vaishali Arvind Dadarkar, )
All residing at C-209, Shila Bina CHS Ltd.,)
Eksar Road, Near Laxminarayan Temple)
Borivali (West), Mumbai - 400 091 )
5. Manohar Kashinath Dadarkar, )
5-a) Milind Manohar Dadarkar, )
5-b) Paresh Manohar Dadarkar, )
5-c) Bharati Manohar Dadarkar, )
All residing at Parle Control, )
Municipal Staff Quarters, )
Room No.5, 48, M.G.Road, )
Opposite Bank of Baroda, )
Vile Parle (East), Mumbai - 400 057)
6. Sanjay Kashinath Dadarkar, )
6-a) Reema Sanjay Dadarkar, )
Both residing at C-108, A-1 Apartments)
Shivaji Road, Off. M.G.Road, )
Kandivali (West), Mumbai 400 067 ) ..... Respondents
Mr. Naresh Jain, a/w. Ms.Neha Anchlia, i/b. Mr.Yash Jariwala for the
Petitioners.
Mr.Anil Sakhare, Senior Advocate, a/w. Ms.Sheetal Metakari, i/b.
Mr.Sunil K.Sonawane for the Respondent No. 1 & 2.
CORAM: R. D. DHANUKA AND
KAMAL KHATA, JJ.
RESERVED ON : 10TH OCTOBER, 2022
PRONOUNCED ON : 20TH OCTOBER, 2022
JUDGMENT (Per R.D. Dhanuka, J.):-
Rule. Mr.Sakhare, learned senior counsel waives service for the
respondent nos.1 and 2. Rule is made returnable forthwith. Writ
petition is already disposed of between the petitioners and the
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respondent nos. 4 to 6 by an order dated 20 th August, 2022 vide consent
terms dated 28th July, 2022. Some of the relevant facts for the purpose
of deciding this writ petition are as under :-
2. The petitioners are the owners of the land bearing CTS no.
1104/02 of Village Kandivali at Kandivali (West), admeasuring
7396.10 sq.mtrs. The petitioners have applied for Development Right
Certificates as their land was reserved for the purpose of D.P. Road. It
is the case of the petitioners that in the year 2000, the petitioners were
entitled to claim 100% TDR for their land. On 1 st March, 2006, the
petitioners applied for 100% TDR. On 26th March, 2003 the petitioners
were granted 25% TDR. The Chief Engineer of the respondent no.1
issued a Letter of Intent in favour of the petitioners.
3. It is the case of the petitioners that on 17 th May, 2006, the
petitioners complied with all the necessary requirements of the
respondents, paid a sum of Rs.20,24,770/- and provided a 150 mm CI
water main in D.P. Road. The petitioners accordingly received 25%
additional TDR for construction of 18.30 mtrs. wide D.P. Road and
received TDR for 1849 sq.mtrs.
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4. In the year 2000, Godrej & Boyce Mfg.Co.Ltd. had filed a Civil
Writ Petition bearing No. 323 of 2000 against the State of Maharashtra
and others for various reliefs. The said writ petition was disposed of by
this Court by judgment delivered on 18 th October, 2005. On 6th
February, 2009, the Supreme Court allowed the Civil Appeal No. 1746
of 2007 and also the writ petition filed by the said Godrej & Boyce
Mfg.Co.Ltd. The Supreme Court held that the area referred in
Regulation (3) of the D.C. Regulations does not refer to that of the area
of the plot. The term "equivalence" is defined in the Black's Law
Dictionary to mean "equal in value, force, measure, volume, power and
effect or having equal or corresponding import, meaning of
significance; alike; identical". The equivalence in case of construction
activity cannot be ascertained by merely referring to the carpet area of
the land occupied by the construction but it has to take into
consideration the total quantity as well as the quality of the
construction.
5. On 28th August, 2009, the petitioner made an application to the
Chief Engineer for the remaining 75% TDR out of the 100% TDR in
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total after excluding the 25% TDR that was already granted to the
petitioners on 17th May, 2006. Since the respondents did not grant the
balance 75% TDR to the petitioners, the petitioners filed a Writ Petition
bearing no. 934 of 2010. By an order dated 12th July, 2011, this Court
directed the respondent nos.1 and 2 to decide the said application made
by the petitioners for the grant of 100% TDR.
6. On 18th October, 2011, the respondent nos. 1 and 2 passed an
order rejecting the application made by the petitioners for the balance
75% TDR on the ground that the petitioners had already availed 25%
TDR as per the prevalent policy and thus had no further right to claim
any additional TDR. The petitioners thus filed this Writ Petition on 9 th
May, 2012 for further reliefs. During the pendency of this petition, the
petitioners and the respondent nos. 4 to 6 filed consent terms dated 28 th
July, 2022. In view of the said consent terms, this writ petition came to
be disposed of by an order dated 20th August, 2022 between the
petitioners and the respondent nos. 4, 4A, 4C, 5A to 5C, 6 and 6A
(Respondent nos. 4 to 6).
7. Mr. Naresh Jain, learned counsel for the petitioners invited our
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attention to the applications made by the petitioners, the impugned
order passed by the respondent nos. 1 and 2 and the averments made by
the Municipal Corporation in the affidavit in reply. He placed reliance
on the following judgments :-
(a) Judgment of Division Bench of this Court in case
of Apurva Natvar Parikh & Co. Private Limited vs.
The State of Maharashtra & Others in Writ Petition
No. 203 of 2014 with connected matters dated 18th
December, 2018.
(b) Judgment of Division Bench of this Court in case
of Natvar Parikh & Co. Private Limited vs. The State
of Maharashtra & Others in Writ Petition No. 451 of
2010 dated 22nd April, 2014.
(c) Judgment of Supreme Court in case of Municipal
Corporation of Greater Mumbai & Anr. vs. Natvar
Parikh & Co. Pvt. Ltd. & Anr., in Civil Appeal No.
1748 of 2015 dated 5th May, 2016.
(d) Judgment of Supreme Court in case of Union of
India (UOI) & Others vs. I.T.C.Limited in Civil
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Appeal No. 3178 of 1982 dated 16th July, 1993.
(e) Judgment of Division Bench of this Court in case
of M/s.Siddhi Real Estate Developers vs. State of
Maharashtra & Anr., in Writ Petition No. 12285 of
2015 dated 3rd July, 2020.
(f) Judgment of Division Bench of this Court in case
of Starwing Developers Private Limited vs. State of
Maharashtra & Ors., in Writ Petition No. 2531 of
2009 dated 18th October, 2019.
(g) Judgment of Supreme Court in case of Godrej &
Boyce Manufacturing Co. Ltd. vs. State of
Maharashtra & Ors., in Civil Appeal No. 1746 of
2007 with connected matters.
8. It is submitted by the learned counsel for the petitioners that the
issues raised by the respondents in the affidavit in reply are already
negatived by this Court and also by the Supreme Court. The learned
counsel for the petitioners submitted that the Godrej & Boyce
Mfg.Co.Ltd. (supra) had already filed a writ petition in this Court on
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identical issues in the year 2000 itself. The said petition was pending
for quite some time and then was rejected. The Supreme Court has
quashed and set aside the order passed in the said Godrej & Boyce
Mfg. Co. Ltd. (supra) case.
9. It is submitted that the Supreme Court in the said judgment
granted various reliefs and as a result thereof, the petitioners became
entitled to claim the balance 75% of TDR. He submitted that the
petitioners thereafter made an application for the balance 75% of TDR
at the earliest. The Corporation however rejected the said application
for additional TDR on flimsy grounds. The petitioners immediately
filed this writ petition for quashing and setting aside the said order
passed by the Municipal Corporation at the earliest.
10. The learned counsel for the petitioners submits that this Court in
case of Apurva Natvar Parikh & Co. Private Limited (supra) after
adverting to the judgment in case of Godrej & Boyce Mfg.Co.Ltd.
(supra) and the order of Supreme Court rejecting the prayer of the
Corporation to revisit the decision in case of Godrej & Boyce
Mfg.Co.Ltd. (supra) and in case of Municipal Corporation of Greater
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Mumbai & Anr. vs. Natvar Parikh & Co. Pvt. Ltd. & Anr. (supra)
allowed the writ petition filed by various parties and held that the
notification dated 16th November, 2016, issued by the Municipal
Corporation is legal and valid. However, the said notification will not
have retrospective or retroactive application to a land already reserved
under the development plan which is surrendered and where the
amenity is developed on the said land by the owner or the lessee
thereof at his own cost prior to 16th November 2016.
11. This Court held that in case if a land is reserved for a road, either
in the Development Plan under the MRTP Act or under the provisions
of the said Act of 1888 and is surrendered and the road is developed on
or after 17th June 2010 but before 16th November 2016, the FSI or TDR
in lieu of that amenity will be governed by the Regulation 33 (1) as
amended on 17th June 2010.
12. The learned counsel submitted that another Division Bench of
this Court in a judgment delivered on 22nd April, 2014 in case of
Natvar Parikh & Co. Private Limited vs. The State of Maharashtra &
Others (supra) held that the cause of action was still continuing and
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thus there was no question of any delay and/or laches. He relied upon
the order passed by the Supreme Court on 5th May, 2016 in Civil
Appeal No. 1748 of 2015 arising out of the judgment delivered by this
High Court in Writ Petition No. 451 of 2010 and submitted that the
Civil Appeal filed by the Municipal Corporation came to be disposed
of.
13. It is submitted that since this Court has already taken a view that
the said notification dated 16th November, 2016 would apply with
prospective effect and not retrospective effect, the petitioners are
entitled to seek TDR to the extent of the remaining 75% as well and
such claim could not have been rejected by the Corporation. He
submitted that the view taken by the Municipal Corporation is contrary
to the principles of law laid down by this Court in the above referred
catena of judgments.
14. The learned counsel for the petitioners submits that another
Division Bench of this Court in the judgment delivered on 3 rd July,
2020 in case of M/s.Siddhi Real Estate Developers (supra), after
adverting to the judgment of Supreme Court in case of Godrej &
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Boyce Mfg. Co. Ltd., has rejected the contentions of the Municipal
Corporation on the issue of delay. He submits that all the contentions
raised by the respondents in the affidavit in reply are already negatived
by this Court or the Supreme Court.
15. The learned counsel for the petitioners submitted that this Court
in case of Starwing Developers Private Limited (supra) has followed
the judgment of this Court in case of Apurva Natvar Parikh & Co.
Private Limited (supra) and has granted reliefs in favour of the
petitioner therein.
16. Mr. Sakhare, learned senior counsel for the Municipal
Corporation on the other hand submitted that there is a gross delay on
the part of the petitioners in applying for TDR for the balance 75%. He
submitted that the petitioners were granted TDR in the form of the D.
C. Regulation on 17th May, 2006. The said 25% TDR granted by the
Corporation was accepted by the petitioners without raising any
protest. The petitioners thus could not have applied for the balance
75% TDR on the basis of the judgment of Supreme Court in case of
Godrej & Boyce Mfg.Co.Ltd. (supra). He submitted that the
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petitioners had no right to apply for the balance TDR on 28th August,
2009 that is after three years from 17th May, 2006 as the same was time
barred. Thus, the petitioners are estopped from claiming additional
TDR.
17. It is submitted by the learned senior counsel that the petitioners
had earlier filed Writ Petition No. 934 of 2010 in view of the judgment
delivered by the Supreme Court in case of Godrej & Boyce Mfg. Co.
Ltd. (supra). The said writ petition was disposed of by this Court by an
order dated 12th July, 2011. The petitioners were given full opportunity
by the Municipal Corporation to submit the documents, if any. The
petitioners were thereafter granted a personal hearing on 21 st August,
2011.
18. It is submitted by the learned senior counsel that the petitioners
did not make a regular application for the grant of the balance 75%
TDR in the prescribed format. It is submitted by the learned senior
counsel that a Special Leave Petition (Civil) Diary No(s) No. 17895 of
2019 has been filed by the Municipal Corporation arising out of the
impugned final order and judgment dated 18th December, 2018 in Writ
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Petition No. 203 of 2014 and the same is pending before the Supreme
Court. He submitted that the Special Leave to Appeal (C) No. 5273 of
2019 filed by the Kukreja Construction Company & Ors. against The
State of Maharashtra and others is also pending and is likely to be
heard shortly.
REASONS AND CONCLUSIONS:-
19. It is not in dispute that the petitioners were granted 25% TDR by
the Municipal Corporation on 17th May, 2006. M/s.Godrej & Boyce
Mfg. Co. Ltd. had already filed a writ petition in this Court for similar
reliefs in the year 2000. The said writ petition was dismissed by this
Court. The said M/s. Godrej & Boyce Mfg.Co.Ltd. had filed a Special
Leave Petition which was converted into Civil Appeal No. 1746 of
2007. The Supreme Court decided the said Civil Appeal by a judgment
delivered on 6th February, 2009. The petitioners thus became entitled
to claim the balance 75% TDR on the basis of the interpretation of the
provisions of the Regulations by the Supreme Court.
20. Based on the said judgment delivered by the Supreme Court in
case of Godrej & Boyce Manufacturing Co. Ltd., the petitioners made
an application on 28th August, 2009 for the balance 75% TDR. Since
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the said application was not decided by the Municipal Corporation, the
petitioners had filed a writ petition bearing no. 934 of 2010 in this
Court. This Court directed the Municipal Corporation to consider the
said application. Though the judgment of Supreme Court was already
delivered as far back as in the month of February 2009, the Municipal
Corporation rejected the claim for the balance TDR contrary to the
principles of law laid down by the Supreme Court in case of Godrej &
Boyce Manufacturing Co. Ltd. (supra).
21. The Division Bench of this Court in case of Apurva Natvar
Parikh & Co. Private Limited (supra) in Writ Petition No. 203 of 2014
and in batch of the petitions delivered on 18th December, 2018 decided
identical issues. The Municipal Corporation contended before this
Court that the decision of the Supreme Court in case of Godrej &
Boyce Manufacturing Co. Ltd. (supra) is per incurium on various
grounds. This Court in the said judgment after adverting to the various
judgments, rejected the contentions raised by the Municipal
Corporation about delay and laches for making an application for the
balance TDR and for filing a writ petition.
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22. This Court adverted to the judgment of Supreme Court in case of
Godrej & Boyce Manufacturing Co. Ltd. (supra) in which it was held
that there was no question of any delay and/or laches as contended. The
approach of a person/party immediately and/or after coming to know
about the judgment of the Supreme Court cannot be stated to be guilty
of any laches to claim/reliefs so prayed and/or is barred by the
limitation. The petitioners have filed this petition in view of the
judgment delivered by the Supreme Court in case of Godrej & Boyce
Manufacturing Co. Ltd. (supra)
23. This Court in the said judgment clearly held that the said
notification dated 16th November, 2016 issued by the Municipal
Corporation will not have retrospective or retroactive application to a
land reserved under the development plan which is surrendered and
where amenity is developed on the said land by the owner or lessee
thereof at his own cost prior to 16th November 2016. If the land is
surrendered and road is developed on or after 17 th June, 2010 but
before 16th November, 2016, the FSI or TDR in lieu of such amenity
will be governed by the Regulation 33 (1) of the D.C. Regulations.
This Court accordingly directed the authority therein to make a
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recommendation to the Mumbai Municipal Corporation for the grant of
75% additional FSI/TDR in accordance with the decision of the
Supreme Court in case of Godrej & Boyce Manufacturing Co. Ltd.
(supra). Facts of this case are identical to the facts in case of Apurva
Natvar Parikh & Co. Private Limited (supra).
24. The Division Bench of this Court in case of Natvar Parikh &
Co. Private Limited (supra) has held that the fact that the respondents
have granted 25% TDR itself justified and proved the case that the
Petitioner had developed the amenities on the surrendered land at its
own cost and is entitled to additional amenities of the TDR for the
same. The cause of action is still continuing. The rights of the
petitioners are crystalized on the basis of the judgment of the Supreme
Court in case of Godrej & Boyce Manufacturing Co. Ltd. (supra) and
cannot be taken away though claimed since long. This Court in the
said judgment also rejected the plea of delay and laches raised by the
Municipal Corporation. The Civil Appeal No. 1748 of 2015 filed by
the Municipal Corporation against the said judgment before this Court
came to be dismissed. The judgment delivered by this Court is merged
with the judgment delivered by the Supreme Court in Civil Appeal No.
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1748 of 2015.
25. The Supreme Court in case of Union of India (UOI) & Others
(supra) has considered the issue of delay in seeking a refund of the
amount paid under mistake of law. The Supreme Court held that such
claim could not be considered as time barred as it could be filed only
after a mistake of law came to the notice of the assessee.
26. The Division Bench of this Court in case of M/s.Siddhi Real
Estate Developers (supra) after adverting to the judgment of Supreme
Court in case of M/s.Godrej & Boyce Manufacturing Co. Ltd. (supra)
has rejected the arguments similar to the arguments advanced by the
learned senior counsel for the Municipal Corporation in this case and
rejected the plea of delay raised by the Corporation. This Court
directed the Corporation to grant TDR to the petitioner in the form of
FSI equivalent to the area of the two DP Roads strictly in accordance
with the provisions of the MRTP Act, 1966.
27. The Division Bench in case of Starwing Developers Private
Limited (supra) has after adverting to the judgment of this Court in
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case of Apurva Natvar Parikh & Co. Private Limited (supra) has held
that the petitioner therein was entitled to additional amenities FSI/TDR
of the area of constructed road. The principles laid down by the
Supreme Court and this Court in the judgment referred to aforesaid
apply to the facts of this case. In our view, the view taken by the
Municipal Corporation is already negatived in the catena of judgments
referred to aforesaid. In our view, there is no substance in any of the
submission made by Mr. Sakhare, learned senior counsel for the
Municipal Corporation.
28. We accordingly pass the following order :-
(a) Writ Petition No. 411 of 2013 is allowed in
terms of prayer clause (a). The TDR of 5547.10
sq.mtrs. shall be issued to the petitioners within
four weeks from today without fail.
(b) Rule is made absolute in the aforesaid
terms. No order as to costs.
(c) The parties to act on the authenticated copy
of this order.
[ KAMAL KHATA, J.] [R. D. DHANUKA, J.]
