M/S Lalita Developers Through ... vs State Of Maharashtra, Urban ...
2023 Latest Caselaw 9347 Bom

2023:BHC-NAG:13224-DB
              WP 7431-19                                      1                       Judgment

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                     NAGPUR BENCH, NAGPUR.
                                        WRIT PETITION NO. 7431/2019

              M/s Lalita Developers, Through Proprietor,
              Rajendra Purushottam Tank, Office at 177, Radhika Vihar,
              Quetta Colony, Nagpur 440 008.                                       PETITIONER

                                                   -VERSUS-

              1.       State of Maharashtra, Urban Development Department,
                       Through Secretary, Mantralaya, Mumbai 400 032.

              2.       Nagpur Municipal Corporation, Through its
                       Commissioner, Civil Lines, Nagpur 400 001.

              3.       Town Planning Department, Through its Assistant
                       Director, Nagpur Municipal Corporation,
                       Civil Lines, Nagpur 440 001.                             RESPONDENTS

              __________________________________________________________________________
                   Shri Makarand Agnihotri with Shri Parth Sagdeo, counsel for the petitioner.
                   Ms Sangita Jachak, Assistant Government Pleader for the respondent no.1.
                           Shri Girish Kunte, counsel for the respondent nos.2 and 3.

              CORAM :          A. S. CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ.

              DATE ON WHICH ARGUMENTS WERE HEARD                    : JULY   07,    2023
              DATE ON WHICH JUDGMENT IS PRONOUNCED                  : SEPTEMBER 06, 2023

              JUDGMENT          (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties.

2. The dispute that arises for resolution in this writ petition filed

under Article 226 of the Constitution of India is the entitlement of the

petitioner to the compensation towards acquisition of the petitioner's

land.

WP 7431-19 2 Judgment

3. Undisputed facts giving rise to the present proceedings are that

the petitioner, a proprietorship firm, claims ownership of land bearing

Khasra Numbers 11/3 and 11/4 in Sheet Number 8 to the extent of 1

Hectare 23 R or 11883 Square Meters at Mouza Bhandewadi, Pardi Road,

Nagpur. The said land was earmarked partially for market, for park and

for a twelve meter road in the development plan of the city of Nagpur.

The petitioner claims to have acquired interest in about 52 plots from the

recorded owner of the said property - Swaraj Ekta Cooperative Housing

Society pursuant to the registered document dated 05.07.2011. Public

Interest Litigation No. 50 of 2012 was initiated in this Court raising the

issue of shifting of Pardi Bazar situated at Bhandara Road to a place that

was reserved for the markets. The petitioner filed Civil Application (O)

No. 517 of 2015 for intervention in the said proceedings and expressed

its willingness to voluntarily surrender the land admeasuring 11883

Square Meters in lieu of Transferable Development Rights (for short, 'the

TDR'). The initial application in that regard moved by the petitioner was

dated 13.08.2015 followed by other applications. In the said proceedings,

the Division Bench on 12.02.2016 passed an order recording the fact

that the petitioner was willing to accept the TDR under Government

Resolution dated 28.01.2016 for the aforesaid land. Accordingly, the

Nagpur Municipal Corporation (for short, 'the NMC') was directed to

accept the petitioner's proposal for grant of the TDR in accordance with WP 7431-19 3 Judgment

the Government Resolution dated 28.01.2016. Necessary steps were to

be undertaken within a period of four weeks from the date of the order.

It was further directed that after vesting of the said land in the NMC it

could proceed further to construct the said market either through its

own funds or on Build, Operate and Transfer - BOT basis. Pursuant to

the aforesaid order there was exchange of communications between

the petitioner and the NMC. Ultimately on 06.01.2017 the petitioner

moved an application for grant of TDR in accordance with the

Government Resolution dated 28.01.2016. The petitioner handed over

possession of land admeasuring 11883 Square Meters to the NMC on

31.12.2018 and it was issued a possession receipt in that regard. In

the matter of compensating the petitioner in lieu of the aforesaid land,

the General Body of the NMC on 29.01.2019 passed Resolution

Number 3421 by which it was proposed to seek funds from the State

Government so as to compensate the petitioner for the aforesaid land.

Based on the aforesaid resolution, the NMC made a request to the

State Government to release the funds as indicated in its resolution.

Since nothing further happened in the matter, the present writ petition

was filed on 18.10.2019 praying that the NMC be directed to assess

the market value of the entire land and pay compensation to the

petitioner towards acquisition of the said land.

WP 7431-19 4 Judgment

4. During pendency of the present proceedings and on the directions

of this Court, the State Government through its Urban Development

Department considered the request that was made by the NMC for

release of the compensation. On 21.05.2021 the Urban Development

Department issued a communication to the Municipal Commissioner,

Nagpur Municipal Corporation stating therein that the lands in question

were to be utilized for facilitating the provision of flyover, ROB and RUB.

The acquisition was not for setting up of a market and hence the primary

responsibility to acquire the land was of the Planning Authority.

Reference was made to the Government Resolution dated 04.05.2018

to state that the demand for release of funds as made by the NMC was

not liable to be accepted in view of said Government Resolution. The

entire responsibility being that of the NMC it was for it to take all

necessary steps and compensate the petitioner. Thereafter on

29.04.2022, the NMC issued a communication to the petitioner and

called upon it to complete all necessary formalities so as to facilitate

issuance of the TDR certificate. By amending the writ petition the

petitioner has challenged the decision of the Urban Development

Department dated 21.05.2021 as well as the communication dated

29.04.2022 issued by the NMC on the premise that requiring the

petitioner to accept TDR after a span of more than six years from

passing of the order in the Public Interest Litigation and four years WP 7431-19 5 Judgment

after taking possession of the land in question was arbitrary, illegal and

unsustainable in law.

5. The learned counsel for the parties agreed to place on record

their written submissions to enable the Court to decide the present

proceedings. Such permission was accordingly granted by the order

dated 20.03.2023. The learned counsel for the petitioner as well as

the NMC has accordingly placed on record their written submissions

alongwith the decisions on which they seek to place reliance. The writ

petition has accordingly been considered for adjudication.

6. Shri Makarand Agnihotri, learned counsel for the petitioner

after referring to the factual aspects sought to urge that the stand

taken by the NMC of requiring the petitioner to accept compensation

in the form of TDR at such a belated stage was highly arbitrary and

violative of Article 300A of the Constitution of India. According to the

petitioner by the order dated 12.02.2016 the NMC was required to act

within a period of four weeks from the said order in the matter of

grant of TDR. Though the petitioner had sought grant of TDR by its

application dated 05.01.2017 and had thereafter handed over

possession on 31.12.2018 no effective steps were taken by the NMC to

grant TDR to the petitioners. On the contrary the General Body of the

NMC passed a resolution on 29.01.2019 resolving to grant monetary

compensation to the petitioner to the tune of Rs.44,13,77,779/-. Even WP 7431-19 6 Judgment

while determining this amount of compensation, the belting system had

been adopted which was not in consonance with the law as laid down

by the Hon'ble Supreme Court. Having been deprived of its land as on

31.12.2018, the petitioner had not received any compensation

whatsoever, either in the form of TDR or in monetary terms. The

documents on record indicated that since inception the petitioner had

taken all necessary steps that were required in the matter of TDR but it

was the NMC that failed to take necessary steps in the matter.

Reference was then made to the Government Resolution dated

04.05.2018 and it was on this basis that the NMC had sought release

of the amount of compensation by the State Government. Though

funds had been released for various other development activities, the

State Government had refused to release such funds on the premise

that the issue was not covered by the said Government Resolution.

The resolution dated 29.01.2019 passed by the NMC clearly indicated

that the lands had been acquired for development of the market and

that it was part of PRAGATI - Pro-Active Governance And Timely

Implementation project. For this reason the communication dated

21.05.2021 issued by the State Government refusing to release funds

in favour of the NMC was bad in law and was liable to be set aside.

The objections raised by the NMC for not compensating the

petitioner had no substance. The petitioner having offered its land for WP 7431-19 7 Judgment

being utilized in the Public Interest Litigation and that offer having

been accepted by the NMC at that point of time was required to be

taken into consideration. There was no question of any voluntary

surrender of the land and on the contrary the said land was proposed

to be handed over to the NMC on payment of monetary compensation.

The petitioner having submitted its application on 05.01.2017 for

receipt of TDR and the Corporation having not taken any steps for

considerable period of time, it was clear that the terms and the

conditions agreed initially could not be said to be binding on the

petitioner in the matter of grant of compensation. When the order

dated 12.02.2016 was passed the market rate of TDR was above the

price of the land as per the ready reckoner. However presently the market

rate of the TDR was below the ready reckoner rate. While the NMC

would enrich itself having taken over the land on 31.12.2018, the

petitioner was required to suffer loss in the matter. Failure to raise a

compound wall by the petitioner was not at all relevant inasmuch as

possession of the land was taken on 31.12.2018 without any protest as

regards absence of such compound wall. The delay on the part of the

NMC in offering the TDR on 29.04.2022 was after passage of considerable

time that was unreasonable and hence there was no question of foisting

the same on the petitioner. It was thus submitted that the petitioner be

directed to be paid the monetary compensation in accordance with the WP 7431-19 8 Judgment

resolution of the General Body dated 29.01.2019 but by re-determining

the amount of compensation in an appropriate manner. The impugned

communications dated 21.05.2021 issued by the Urban Development

Department of the State Government as well as 29.04.2022 issued by the

NMC were liable to be set aside. In support of the aforesaid submissions,

the learned counsel placed reliance on the decisions in Pt.Chet Ram

Vashist (Dead) by LRs. Versus Municipal Corporation of Delhi [(1995) 1

SCC 47], Joseph Severance & Others Versus Benny Mathew & Others

[(2005) 7 SCC 667], State of Maharashtra Versus Bhimashankar

Sidramappa Chippa [2009(5) Mh.L.J. 76], Erach Boman Khavar

Versus Tukaram Shridhar Bhat & Another [(2013) 15 SCC 655], Prem

Jeevan Versus K.S. Venkata Raman & Another [(2017) 11 SCC 57],

Vidya Devi Versus State of Himachal Pradesh & Others [(2020) 2 SCC

569], Patiala Urban Planning and Development Authority & Another

Versus Tarlochan Singh & Others [(2020) 17 SCC 224], Padia Timber

Company Private Limited Versus Board of Trustees of Visakhapatnam

Port Trust, Through its Secretary [(2021) 3 SCC 24], Central Bank of

India & Others Versus Dragendra Singh Jadon [(2022) 8 SCC 378],

Kalyani (Dead) Through LRs. & Others [Civil Appeal No. 3189 of

2022] decided on 26.04.2022, Shree Vinayak Builders and Developers

Versus The State of Maharashtra & Others [Writ Petition No. 2231 of

2019] decided by the Full Bench on 25.07.2022 and Shree Vinayak WP 7431-19 9 Judgment

Builders & Developers Versus The State of Maharashtra & Others

[Writ Petition No. 2231 of 2019] decided on 13.10.2022.

7. Shri Girish Kunte, learned counsel for the NMC countered the

aforesaid submissions made on behalf of the petitioner and opposed

the writ petition. It was submitted that the only relief to which the

petitioner was entitled was grant of TDR. In view of the

communication dated 29.04.2022 the petitioner was entitled to receive

TDR and the Corporation was willing to grant the same accordingly. It

was pointed out that there was no delay on the part of the NMC in

offering the TDR. The petitioner had failed to comply with various

technical requirements in the matter. The petitioner failed to construct

the compound wall demarcating the land in question despite being

called upon to do so. Though possession of the aforesaid land was

received on 31.12.2018 the mutation entry in favour of the NMC was

effected only on 23.01.2019. Despite issuance of various reminders

the petitioner had failed to supply necessary documents to enable the

NMC to handover the TDR certificate to the petitioner. The resolution

dated 29.01.2019 passed by the General Body of the NMC was based

on the Government Resolutions dated 04.05.2018 and 17.11.2018 by

treating it as a special case. However in view of the communication by

the State Government on 21.05.2021 the petitioner was only entitled

for TDR. There was no question of granting any monetary WP 7431-19 10 Judgment

compensation to the petitioner and the financial position of the NMC

also did not permit it to do so. The Unified Development Control

Regulations, 2020 which came into operation from 03.12.2020 were

not applicable in the present matter. On the contrary, as per the

Government Resolution dated 28.01.2016 and Clause 4.1.1 thereof it

was necessary for the petitioner to erect the compound wall. The same

was however not done by the petitioner. There being a voluntary

surrender of the aforesaid land the petitioner was entitled for TDR in

terms of Section 126(1)(b) of the Maharashtra Regional and Town

Planning Act, 1966 (for short, 'the Act of 1966') and according the

grant of TDR was duly approved on 29.04.2022. It was not

permissible for the petitioner to change its stand from time to time and

reference in that regard was made to the principle of res-judicata.

Since the NMC had offered TDR to the petitioner by the impugned

communication dated 29.04.2022 there was no question of grant of

any monetary compensation. In support of said submissions, the

learned counsel placed reliance on the decisions in Mathura Prasad

Bajoo Jaiswal & Others Versus Dissibai N.B. Jeejeebhoy [(1970) 1

SCC 613], Sri Bhavanarayanaswamivari Temple Versus Vadapalli

Venkata Bhavanarayanacharyulu [(1970) 1 SCC 673], Kanta Goel

Versus B.P. Pathak & Others [(1977) 2 SCC 814], Indira Bai Versus

Nand Kishore [(1990) 4 SCC 668], Janhit Manch Through its President WP 7431-19 11 Judgment

Bhagwanji Raiyani & Another Versus State of Maharashtra & Others

[(2019) 2 SCC 505], Vaijinath Yeshwanta Jadhav Deceased by L.R. &

Others Versus Afsar Begum, Wife of Nadimuddin, Deceased by L.R.s &

Others [Civil Appeal No. 652 of 2020] and Neelima Srivastava Versus

The State of Uttar Pradesh & Others [Civil Appeal No.4840 of 2021] to

submit that the writ petition was liable to be dismissed.

8. We have perused the written submissions filed on behalf of the

petitioner as well as the NMC. We have also gone through the

decisions on which the learned counsel for the parties seek to place

reliance. We have thereafter given thoughtful consideration to the

submissions as made. For considering the prayers made in the writ

petition, we deem it appropriate to refer to certain undisputed facts

that have bearing on the issues as raised:-

(a) Proceedings in Public Interest Litigation No. 50 of 2012:-

The aforesaid proceedings in public interest were filed in the matter of

shifting of Pardi Bazar situated at Bhandara Road, Nagpur to a place

reserved for markets under the Development Plan. The subject property

with which the petitioner is concerned was shown to be reserved as a

market zone under the Development Plan. The petitioner claiming

interest in about 52 plots located in Khasra Numbers 11/3 and 11/4 of

Mouza Bhandewadi filed Civil Application (O) No.517 of 2015 seeking

leave to intervene in the said proceedings. The NMC filed its affidavit WP 7431-19 12 Judgment

dated 27.08.2015 stating therein that out of 59 plots located therein

the petitioner as intervenor was entitled to seek TDR for its 52 plots.

The Division Bench accordingly considered the intervention application

of the petitioner and on 12.02.2016 passed the following order :-

"Heard.

Civil Application No.517 of 2015 for intervention has been filed by the applicant seeking a direction to respondent/Nagpur Municipal Council to acquire the land of the applicant bearing Khasra Nos. 11/3 and 11/4 at mouza Bhandewadi, admeasuring 1.23 HR out of 1.37 HR for Pardi market as per the reservation contemplated in Nagpur City Development Plan and issue "Market Zone" Development Right Certificate (TDR) to the applicant in respect of the said land.

The matter was adjourned from time to time so as to enable the respondent/Municipal Council and the present applicant to discuss the matter. It is a common knowledge that, on the Bhandara road, which is having a heavy traffic, there is a regular market on the road which causes great inconvenience to the citizens travelling on the said road. In that view of the matter, the respondent/Municipal Council as well as the applicant were directed to sort out the issue.

Now the State Government has issued a Government Resolution on 28.1.2016 thereby modifying its earlier policy of grant of transferable Development Rights. The applicant is willing to accept the TDR as provided under the said Government Resolution for the area in his possession. We find that there should be no impediment in the way of the Nagpur Municipal Corporation to accept the proposal of the petitioner.

It cannot be in dispute that the Corporation is not having sufficient funds to acquire the land. Resultantly, the land would remain under reservation and the Corporation would also not be in a position to construct the market.

Construction of market would substantially ease out the problem on the Bhandara road. If the Corporation is not WP 7431-19 13 Judgment

having sufficient funds to construct the said market, the Corporation can also consider constructing market on Build Operate Transfer (BOT) basis.

We find that if this project is implemented as a model project, the Corporation may get offers in other areas of the City, which will substantially reduce the financial burden on the Corporation for providing amenities to the citizens without there being burden on the Corporation. In that view of the matter, we direct the Municipal Corporation to accept the proposal of the petitioner for granting him TDR in accordance with the Government Resolution dt.28.1.2016. The same shall be done within a period of four weeks from today.

After the land is vested in the Corporation, the Corporation shall proceed further to construct the said market either on its own funds or on the BOT basis. The same shall be done as expeditiously as possible.

Insofar as parking of trucks on the Bhandara road is concerned, as already directed earlier, the Police Authorities so also the R.T.O. Authorities would continue to have surprise visits on the roads in question regularly and control menace of unauthorised parking on the said road.

With the above observations and directions, the application is disposed of."

(emphasis supplied)

As per the aforesaid order, the NMC was directed to accept the petitioner's

proposal for grant of TDR in accordance with the Government Resolution

dated 28.01.2016. It is thus clear that the aforesaid order forms the

entire basis of the claims of the petitioner as well as the NMC.

(b) Offer of TDR to the petitioner :-

In Public Interest Litigation No. 50 of 2012 the petitioner filed

an application for intervention and expressed willingness to accept TDR

in lieu of surrender of land admeasuring 11883 square meters. The order WP 7431-19 14 Judgment

dated 11.02.2015 passed in the said proceedings records the statement

made on behalf of the petitioner that it was willing to surrender the land

in question for construction of a market. It is thereafter that the order

dated 12.02.2016 came to be passed directing the NMC to accept the

petitioner's proposal for grant of TDR as per the notification dated

28.01.2016. The exchange of communications between the parties and

events that have occurred in the interregnum have been referred to

hereinabove. Possession of the subject land has been taken on

31.12.2018. The NMC has by the impugned communication again

offerred TDR on 29.04.2022. Perusal of the notification dated

28.01.2016 indicates that the same has been issued in exercise of

powers under Section 27(1AA)(c) of the Act of 1966. The regulations

in the matter of grant of TDR have been stated in Annexure-B thereof.

The same appears to be a Code in itself in the matter of grant of TDR.

Thus with the passing of the order dated 12.02.2016 in Public Interest

Litigation No. 50 of 2012 in Public Interest Litigation No. 50 of 2012

that has attained finality, the rights of the petitioner as well as the

NMC stand crystallized by the same.

(c) Steps taken by the petitioner and the NMC pursuant to the order

dated 12.02.2016 in PIL No. 50 of 2012 :-

After the aforesaid order was passed the petitioner issued various

communications seeking grant of TDR. On 06.01.2017 the petitioner WP 7431-19 15 Judgment

moved an application in the prescribed format for grant of TDR as per

notification dated 28.01.2016. This was followed by applications dated

27.04.2017, 25.01.2018, 12.03.2018, 24.07.2018 and 08.08.2018. By

all these communications, the petitioner sought release of the TDR.

On the other hand, the NMC issued communications dated

09.03.2016, 13.04.2016, 17.05.2018, 03.10.2018 requiring the

petitioner to complete various formalities for grant of TDR.

The possession of the aforesaid land admeasuring 11883 Square

Meters was taken by the NMC on 31.12.2018 and a possession receipt

to that effect came to be executed. In the meanwhile, the General

Body of the NMC passed Resolution Number 342 on 29.01.2019 and

resolved to demand an amount of Rs.81,58,24,483/- from the State

Government as a special case under the provisions of Section 124G(3)

of the Act of 1966. The aforesaid resolution was thereafter forwarded

to the State Government on 21.02.2019. The petitioner was informed

of the same on 27.03.2019. In view of there being no further

development in the matter, the present writ petition was filed on

18.10.2019.

9. The challenge to the communication dated 21.05.2021 issued by

the Urban Development Department can be taken up first for

consideration. The resolution dated 29.01.2019 seeking release of

funds by the State Government with a view to augment the WP 7431-19 16 Judgment

expenditure for acquiring the land was stated to be considered by the

Urban Development Department. Since the NMC sought release of the

said funds by relying upon the Government Resolution dated

04.05.2018 the Urban Development Department stated that the said

Government Resolution was applicable in cases of acquisitions with

regard to the construction of flyovers, ROB and RUB of National

Highways. Since the land in question was reserved for market and was

proposed to be used for market, the said Government Resolution was

not applicable. It was the primary responsibility of the NMC to bear

the expenses for the same. The amounts therefore were required to be

raised from its own funds. It was further stated in the said

communication that the NMC was not justified in relying upon the

Government Resolution dated 04.05.2018.

A perusal of the Government Resolution dated 04.05.2018

indicates that the same has been issued by the Urban Development

Department of the State Government. It clearly states that for

completion of projects in the matter of construction of flyovers, ROB

and RUB of National Highways the funds required towards acquisition

of lands would be made available to local bodies under the

"Maharashtra Suvarna Jayanti Nagarotthan Maha Abhiyan". The manner

in which such funds were to be allocated has been specified therein.

On a plain reading of the said Government Resolution it becomes clear WP 7431-19 17 Judgment

that it takes within its purview flyovers, ROB and RUB to be

constructed under the National Highways Authority of India. The

flyovers, ROB and RUB ought to be located within the concerned local

body. It is not in dispute that the lands in question are to be utilized for

settlement of market and the land is not proposed to be used either for

construction of flyover, ROB or RUB by the National Highways

Authority of India. It is no doubt true that from the area adjoining

these lands the National Highways Authority of India had proposed the

construction of flyover/ROB. It is for this reason that the Urban

Development Department of the State Government in clear terms has

stated that the Government Resolution dated 04.05.2018 was not

applicable so as to facilitate release of any funds in favour of the NMC

to meet the expenses of acquisition of the said lands. We do not find

that there is any illegality in the stand taken by the Urban Development

Department of the State Government in its communication dated

21.05.2021 stating the aforesaid. For the same reason the Government

Resolution dated 17.11.2018 also issued by the Urban Development

Department of the State Government cannot be made applicable to the

lands in question. This resolution has been issued to facilitate what

has been provided for in the Government Resolution dated

04.05.2018. We therefore do not find any basis to interfere with the

communication dated 21.05.2021 at the behest of the petitioner.

WP 7431-19 18 Judgment

10. It would thus be necessary to consider as to whether the

petitioner can now be permitted to give up its offer of willingness to

accept TDR and instead seek monetary compensation. The grievance

of the petitioner is based on the delay in the matter of grant of

TDR pursuant to the order dated 12.02.2016. In this regard, it

may be stated that the conduct of both the parties indicates

that they exchanged communications from time to time in the

said matter. The petitioner's application in the prescribed format

for release of TDR is dated 06.01.2017. The NMC sought

compliance of certain other formalities in the matter and insisted

upon construction of a compound wall in view of Clause 4.1.1 of

the notification dated 28.01.2016. In the midst of these

communications, the General Body of the Nagpur Municipal

Corporation proceeded to pass a resolution and sought release of

grants from the Urban Development Department of the State

Government. The matter was pending with the said Department until

it responded on 21.05.2021 by refusing to release any funds in favour

of the NMC on the ground that the Government Resolution dated

04.05.2018 did not permit it to do so. Thus for a period from

29.01.2019 till 21.05.2021 which is a period of about a year and four WP 7431-19 19 Judgment

months the issue with regard to release of funds was pending with the

Urban Development Department of the State Government. We

however find that in the light of the Government Resolution dated

04.05.2018 the Urban Development Department of the State

Government was justified in refusing to release such funds.

11. These events occurred during pendency of the present

proceedings and ultimately on 29.04.2022 the NMC issued the

impugned communication offering TDR to the petitioner subject to

complying with the technical requirements. The petitioner naturally

refused to take further steps since its grievance with regard to delay in

offering the TDR and prayer for monetary compensation was pending

in the present proceedings. The blame for the time taken in offering

the TDR to the petitioner partly lies with both the parties. After the

possession was handed over to it on 31.12.2018, the NMC proceeded

to pass a resolution through its General Body for release of funds which

request has been found not to be in consonance with the Government

Resolution dated 04.05.2018. The petitioner during this period

preferred to wait for the outcome of this exercise since it would have

received compensation in monetary terms which is evident from its

communication dated 26.03.2019. The issue with regard to monetary

compensation was put to an end by the State Government by its

communication dated 21.05.2021. After a period of almost one year WP 7431-19 20 Judgment

the NMC has called upon the petitioner to complete the formalities for

release of TDR vide communication dated 29.04.2022.

12. According to the petitioner, in absence of there being any

concluded contract between the parties in the matter of acceptance of

TDR the petitioner after a lapse of considerable time cannot now be

forced to accept such TDR especially when the value of such TDR that

was admissible when the order in the Public Interest Litigation was

passed on 12.02.2016 has drastically reduced today. The petitioner

seeks to rely upon the decision in Padia Timber Company Private Limited

(supra) to urge that in the absence of any concluded contract between

the parties it is no longer binding on the petitioner to accept TDR.

Reliance is also sought to be placed on the decision of the Full Bench in

Shree Vinayak Builders and Developers (supra) to contend that the land

owner can withdraw his request and refuse or decline to surrender the

land as long as there is no concluded contract between the parties.

The offer of TDR in lieu of compensation by itself would result in

concluded contract.

13. In our view the relevant events that would have to be borne in

mind in this context are the order dated 12.02.2016 passed in the

Public Interest Litigation directing the NMC to accept the petitioner's

offer for grant of TDR, application dated 06.01.2017 made by the

petitioner pursuant to this order, possession of the said land being WP 7431-19 21 Judgment

handed over to the NMC on 31.12.2018, the resolution passed by the

General Body on 29.01.2019, the request for release of funds being

refused by the State Government on 21.05.2021 and the offer of TDR

ultimately made to the petitioner on 29.04.2022. The petitioner on its

own volition appeared in the Public Interest Litigation and offered to

accept the TDR under Government Resolution dated 28.01.2016 in lieu

of land admeasuring 11883 Square Meters. This resulted in the order

dated 12.02.2016 being passed at the behest of the petitioner. The

NMC was directed to accept the petitioner's proposal for granting it

TDR in accordance with the said Government Resolution. The

aforesaid order continues to operate even today. The rights of the

parties therefore are governed by the said order which is in the nature

of an order inter-parties. Without seeking modification or variation of

the order dated 12.02.2016 the petitioner cannot be now heard to

contend that instead of grant of compensation by way of TDR it should

be offered monetary compensation. In our view the rights of the

parties would continue to be governed by the said order as long as the

same operates. In the facts of the case in hand therefore, the absence

of there being a concluded contract between the parties is not of much

relevance since the rights of the parties stand crystallized by virtue of

the order dated 12.02.2016. For this reason, the ratio of the aforesaid

decisions cannot be applied to the facts of the present case. We WP 7431-19 22 Judgment

therefore find that the willingness expressed by the petitioner in the

earlier litigation that resulted in passing of the order dated 12.02.2016

now precludes the petitioner from refusing to accept TDR and seek

monetary compensation in lieu thereof. The parties would be bound

by the earlier orders passed by this Court that have attained finality.

The decision in Mathura Prasad Bajoo Jaiswal (supra) holds that an

issue of fact determined between the parties cannot be re-opened in

subsequent proceedings. The other decisions relied upon by the

learned counsel for the NMC support this reasoning.

14. Having held that the parties are bound by the order dated

12.02.2016 and the petitioner cannot be permitted to decline the

acceptance of TDR, we cannot be oblivious of the time that has been

taken by the NMC in actually offering such TDR to the petitioner. The

offer of TDR has been made by the NMC during pendency of the

present proceedings on 29.04.2022. The petitioner has pointed out

that the value of the TDR in 2016-17 cannot be compared to its

present value. The said value has reduced considerably and

compelling the petitioner to accept TDR in these circumstances would

result in there being an unfair bargain. The petitioner has sought to

rely upon the decision in Kalyani through legal heirs & Others as well

as Vidya Devi (supra) to urge that under Article 300A of the

Constitution of India the petitioner cannot be deprived of its lands in WP 7431-19 23 Judgment

such manner. It is true that with passage of time the value of TDR that

was admissible in 2017 when the petitioner submitted its application

has undergone a change and the same has reduced when such TDR

was offered on 29.04.2022. It is asserted by the petitioner that even

the NMC is offering TDR at about 35% of the rate of the ready

reckoner. It is also stated that the concept of TDR has now undergone

a change as per the Unified Development Control and Promotion

Regulations for Maharashtra, 2020 by converting it to Reservation

Credit Certificate - RCC.

It has to be borne in mind that the petitioner cannot be awarded

compensation in monetary terms since the Urban Development

Department is not liable to provide any financial aid to the NMC

considering the purpose for which the lands were required. The NMC

is also not in a financial position to monetarily compensate the

petitioner and it for this reason that the petitioner's offer for TDR came

to be accepted. For want of award of monetary compensation the land

now cannot be directed to be returned back to the petitioner. The

purpose for its requirement was in larger public interest and that

purpose cannot be permitted to be defeated. It would therefore be

necessary to compensate the petitioner by offering it larger TDR than

what is admissible under the notification dated 28.01.2016. The grant

of such additional TDR would compensate the petitioner in the light of WP 7431-19 24 Judgment

the time taken by the NMC to offer the same since the petitioner had

made such application on 06.01.2017 and the possession of the land in

question was handed over on 31.12.2018. This would ensure that

whilst the public purpose for which the land admeasuring 11883

Square Meters was proposed to be utilized by the NMC would stand

achieved, the petitioner would also be compensated with grant of

additional TDR to the extent of 20% to what it is entitled under the

notification dated 28.01.2016. The equities between the parties could

be balanced in the said manner. The course of balancing competing

interests between the parties as was done by the Hon'ble Supreme

Court in Ramniklal N. Bhutta & Another Versus State of Maharashtra

& Others [(1997) 1 SCC 134] would have to be followed.

15. In the light of aforesaid discussion, the following order is

passed:-

(A) The offer of TDR made by the NMC on 29.04.2022 is upheld subject to the petitioner being granted 20% additional TDR besides the TDR that is admissible under the Notification dated 28.01.2016. The petitioner is entitled to be compensated in terms of grant of TDR in the manner stated hereinabove and the petitioner is not entitled to receive monetary compensation in lieu of TDR for the land admeasuring 11883 Square Meters. The necessary steps in this regard shall be taken by the NMC within a period of eight weeks from today.

                             WP 7431-19                                  25                      Judgment

                            (B)       The decision of the Urban Development Department of the State

Government dated 21.05.2021 refusing to release financial aid in favour of the NMC for paying monetary compensation to the petitioner is upheld.

16. Rule is disposed of in aforesaid terms with no order as to costs.

(MRS.VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

APTE

Signed by: Apte Designation: PS To Honourable Judge Date: 06/09/2023 14:30:58