Bombay High Court
Bholenath Developers Ltd. And Anr vs The State Of Maharashtra And 7 Ors on 16 August, 2024
Author: M. S. Sonak
Bench: M. S. Sonak
2024:BHC-OS:12479-DB Bholenath Developers Ltd. & Anr. v The
Digitally
State of Maharashtra & Ors.
signed by
MUGDHA Judgment-WP 2576-19.doc
MUGDHA MANOJ
MANOJ PARANJAPE
PARANJAPE Date:
2024.08.16
14:43:16
+0530
Mugdha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2576 OF 2019
1. Bholenath Developers Ltd.
A Company registered under the
provisions of Companies Act,
1956 having its registered office
at Plot No.10, Shiv Ashish
Building, 19th Road, Village
Chembur, Taluka Kurla, Mumbai -
400071.
2. Mr. Anil Sajanani,
Director of Petitioner No.1, having
his address at Plot No.10, Shiv
Ashish Building, 19th Road, Village
Chembur, Taluka Kurla, Mumbai - ...Petitioners
400071.
~ versus ~
1. The State of Maharashtra,
through Urban Development
Department, having its address at
Mantralaya, Mumbai. through the
Office of the Government Pleader,
Original Side, Bombay High
Court.
2. The Principal Secretary,
Urban Development Department,
having its address at Mantralaya,
Mumbai.
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3. Municipal Corporation Greater
Mumbai,
a statutory corporation
established under Mumbai
Municipal Corporation Act, 1888
having its office at Mahapalika
Bhavan, Mahapalika Marg,
Mumbai - 400 001.
4. The Municipal Commissioner,
Municipal Corporation Greater
Mumbai, having its office at
Mahapalika Bhavan, Mahapalika
Marg, Mumbai - 400 001.
5. The Chief Engineer
(Development Plan)
Municipal Corporation Greater
Mumbai, having his office at
Municipal Head Office, 5th Floor,
Annex Building, Mahapalika
Bhavan, Mahapalika Marg,
Mumbai - 400 001.
6. The Executive Engineer
(Development Plan)
Municipal Corporation Greater
Mumbai, having his office at
Municipal Head Officer, 5th Floor,
Annex Building, Mahapalika
Bhavan, Mahapalika Marg,
Mumbai - 400 001.
7. Assistant Engineer (Survey)
Office of Dy. Chief Engineer
(Building Proposal) Near Raj
Legacy Building, Paper Mill
Compound, LBS Marg, Vikhroli
(W), Mumbai 400 083.
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Bholenath Developers Ltd. & Anr. v The
State of Maharashtra & Ors.
Judgment-WP 2576-19.doc
8. City Survey Officer, Chembur
Topiwala College Building, Sarojini
Naidu Road, Mulund (West),
Mumbai - 400080. ...Respondents
A PPEARANCES
for the Petitioners Mr. Saket Mone a/w Subit
Chakrabarti, Khushnumah
Banerjee i/by Vidhii Partners,
for the Petitioners.
For the Respondents Mr. Bhavik Manek a/w R. M.
Hajare i/by Meena Dhuri i/by
Sunil Sonawane, for the
Respondents- BMC.
Mr. Abhay L. Patki, AGP, for
the Respondent-State.
Smt. Snehal Patange, SE
(DP), BMC is present.
CORAM : M. S. Sonak &
Arif S. Doctor, JJ.
RESERVED ON : 6th August 2024
PRONOUNCED ON : 16th August 2024
JUDGMENT (Per Arif S. Doctor J):
-
1. Respondent No. 1 (State) vide a Notification
dated 16th November 2016 issued under the provisions of
Section 37 of the Maharashtra Regional and Town
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Planning Act, 1966 ('MRTP Act') sanctioned a modification
to Regulation 34 of the Development Control Regulations
1991 inter alia by which grant of Transferable
Development Rights (TDR) was regulated.
2. The Petitioners' claim to be the owner of a plot
of land bearing S. No.91, Hissa No.7/1/1 (part) and 7/1/2
(part), CTS No.612-B, Village Borla, Taluka Kurla, Mumbai
Suburban District, admeasuring around 1777 Sq. Meters
('the said plot'). The said plot was affected by a
reservation for the purpose of a playground in the
sanctioned Development Plan dated 25th March 1991
(DCR, 1991).
3. The Petitioners, on 24th January 2017, made an
application ('Petitioners' Application') for issuance of a
Development Right Certificate ('DRC') by offering to hand
over the said plot in terms of the said Notification.
Respondent No. 3 (MCGM), however, failed to grant the
Petitioners the benefit of incentive TDR under the said
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Notification, and it is thus that the present Writ Petition
has been filed.
4. Before adverting to the rival contentions, it is
useful to set out the following facts, which lie within a
fairly narrow compass and are as follows, viz.
i. Since Respondent No. 3 (MCGM) had not taken
a decision on the Petitioners' Application, the Petitioners
had initially approached this Court by filing Writ Petition
(L) No. 2427 of 2017 ('first Writ Petition') in which the
Petitioners had inter alia sought a direction that
Respondent No.3 (MCGM) shall decide the Petitioners'
Application in accordance with the law. The first Writ
Petition was disposed of vide an order dated 31 st October
2017 by which the Respondents were directed to decide
the Petitioners' Application within three months of the
said order, in accordance with law.
ii. Thereafter on 20th January 2018, Respondent
No.3 (MCGM) issued a Letter of Intent ( 'LoI') to the
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Petitioners by which the Petitioners' compliance on
various points enumerated therein was sought for. It is
the Petitioners' case that vide a letter dated 3 rd May 2018
addressed by the Petitioners' architect to Respondent No.
3 (MCGM), the Petitioners had complied with requisitions
contained in LoI.
iii. On 8th May 2018, the Development Control
Regulations 2034 (DCPR 2034) were notified by
Respondent No.1 (State of Maharashtra) under Section 37
of the MRTP Act.
iv. Since the Petitioners' Application for DRC had
yet not been granted, the Petitioners were constrained to
file another Writ Petition being Writ Petition No.3346 of
2018 ('second Writ Petition'). The second Writ Petition
was disposed of by an order dated 11 th March 2019, by
which this Court inter alia directed Respondent No. 3
(MCGM) to issue the DRC to the Petitioners within a
period of two weeks from the date of the said order.
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v. On 22nd April 2019, Respondent No.3 (MCGM)
issued to the Petitioners a DRC for an area of 3554
square meters of FSI of built-up area. However, no
incentive TDR was granted to the Petitioners as per the
said notification. The Petitioners thereafter made
representations/requests to Respondent No.3 (MCGM) to
grant the Petitioners an additional 20% incentive TDR
equivalent to 355.4 square meters in accordance with
Clause 4 of the said Notification since the Petitioners had
applied for a grant of the DCR on 24 th January 2017,
which was within one year from 16th January 2016.
vi. Since the Petitioners' representations/requests
were not accepted/responded to by Respondent No .3
(MCGM), the present Petition came to be filed on 31 st
August 2019, in which the Petitioners had sought the
following relief, viz.
"(a) that this Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or
any other appropriate writ, order or direction under
Article 226 of the Constitution of India directing
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Respondent Nos.3 to 7 to issue Development Rights
Certificate to the Petitioners in terms of the
Application dated 24th January 2017 (at Exhibit I) and
grant benefit of 20% additional/incentive TDR as per
law, including the benefits under the second proviso
to Clause 4.1.1 of the Schedule accompanying the
Notification dated 16th November 2016 (as Exhibit A);"
Submissions of Mr. Mone, on behalf of the
Petitioners
5. Mr. Mone, Learned Counsel appearing on behalf
of the Petitioners, submitted that there could be no
dispute that the Petitioners would be entitled to the
benefit of the said Notification since the same had
admittedly been filed within a period of one year from the
date of the said Notification. He then pointed out that
once the LoI was issued by Respondent No. 3 (MCGM) to
the Petitioners on 20th January 2018, a concluded contract
between the parties came into force.
6. Mr. Mone then placed reliance upon a Full
Bench judgement of this Court in the case of Shree
Vinayak Builders And Developers, Nagpur vs. State
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of Maharashtra & Ors.1 to submit that the scheme
under Section 126 of the MRTP Act was to acquire land by
way of an agreement and hence, acquisition of land by
compelling the land owner to accept TDR/FSI as
unilaterally decided by the acquiring authority without
giving land owner an opportunity to bargain/negotiate
would be unfair and unjust. He submitted that once the
landowner surrendered the property in question, such
landowner was statutorily entitled to grant of TDR/FSI
and that Respondent No.3 (MCGM) had denied the
Petitioners 20% incentive TDR. He thus submitted that
Respondent No. 3 (MCGM), in denying the Petitioners the
benefit of the additional TDR, was breaching the
agreement between the parties.
7. Mr. Mone then submitted that the DCPR 2034
was notified only on 8th May 2018, whereas the
Petitioners' Architects had informed Respondent No.3
(MCGM) of the Petitioners' compliance with the conditions
of the LoI on 3rd May 2018, i.e., before the date of
1 2022 (4) Mh.L.J.739
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notification of the DCPR 2034. Thus, he submitted that
the Petitioners would be governed by the provisions of the
DCR 1991 and not the DCPR 2034. He thus submitted
that Respondent No.3 (MCGM) erred in not granting
incentive TDR to the Petitioners in terms of the said
Notification.
8. Mr. Mone then relied on this Court's judgement
in the case of Apurva Natvar Parikh & Co. Private
Limited vs. The State of Maharashtra & Ors. 2 to
submit that the said Notification did not state that if a
proposal which though made within time remained
pending beyond the tenure of the Notification, the said
proposal would lapse. He submitted that the Petitioners
proposal was kept pending for no fault of the Petitioners
and thus not granting incentive TDR to the Petitioners
would therefore amount to giving retrospective effect to
the DCPR 2034 which he submitted was impermissible in
law.
2 2018 SCC OnLine Bom 6436
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9. Mr. Mone then submitted that the Petitioners,
having submitted the said Application within the time
prescribed under the said Notification, had a vested right
to claim the benefit thereof. He submitted that the failure
of Respondent No.3 (MCGM) to take any decision on the
Petitioners' Application could not, therefore, prejudice the
Petitioners and/or take away the Petitioners' vested right.
He submitted that the Petitioners were constrained to
approach this Court by filing the first Writ Petition only
because Respondent No.3 (MCGM) had failed to decide
the Petitioners' application. He pointed out that on 31 st
October 2017, i.e., the date on which this Court had
directed Respondent No.3 (MCGM) to decide the
Petitioners' application, the DCPR 2034 had not yet come
into force and thus it was incumbent upon Respondent
No.3 (MCGM) to have decided the Petitioners' application
in accordance with the provisions of the said Notification.
10. Mr. Mone placed reliance upon the judgement
of the Hon'ble Supreme Court in the case of J. S. Yadav
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vs. State of Uttar Pradesh & Another 3 and the
judgement of the Full Bench of this Court in the case of
Vishwas Bajirao Patil vs. State of Maharashtra &
Others4 to submit that a vested right cannot be taken
away by a subsequent enactment unless the same made
retrospective in its application.
11. Basis the above, Mr. Mone submitted that the
Petitioners were therefore entitled to incentive TDR of
20% as provided in the said Notification and would not be
governed by the provisions of the DCPR 2034.
Submissions of Mr. Bhavik Manek, on behalf of
Respondent Nos.3 to 7 (MCGM)
12. Per contra, Mr. Manek, Learned Counsel,
appearing on behalf of Respondent Nos. 3 to 7 (MCGM)
submitted that the Petitioners' contention of being
entitled to 20% incentive TDR as in terms of the said
Notification was entirely misconceived. He submitted that
the Petitioners had plainly misconstrued the said
3(2011) 6 SCC 570
42019 SCC OnLine Bom 1770
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Notification. He further submitted that the mere fact that
the Petitioners had filed the said Application within the
prescribed time, the said Notification would not ipso facto
become applicable to the Petitioners.
13. Mr. Manek then invited our attention to Clause
4.1.25 and Clause 7.16 of the Notification, from which he
pointed out that the same clearly provided that the
entitlement to additional TDR was only after the
surrender of the land and that it was incumbent upon
Respondent No.3 (MCGM) to verify and satisfy qua the
ownership and title of said plot. Mr. Manek submitted that
Clause 4.1.2, read with Clause 7 of the said Notification,
made it clear that a claim for TDR could be considered
when the subject property was surrendered to
5 4.1.2 DRC shall be issued only after the land is surrendered to the Municipal Corporation; free of cost
and free from encumbrances and after levelling the land to the surrounding ground level and after
constructing/erecting a 1.5 m. high compound wall/fencing i.e. brick/stone wall up to 0.60 mt above
ground level and fencing above that up to remaining height with a gate, at the cost of the owner and to
the satisfaction of the Municipal Commissioner. Provided that, if on certain lands such
construction/erection of compound wall/fencing is prohibited or restricted by any regulation, then
quantum of Tranferable Development Rights (TDR) shall be reduced as prescribed in proviso to Clause
4.1.1.
Provided further that such construction/erection of compound wall/fencing shall not be necessary for
area under Development Plan roads. In such cases TDR equivalent to entitlement as mentioned in
regulation no.4.1.1 shall be granted without any reduction.
6 7.0 VESTING OF LAND
7.1 The Commissioner, before issuing DRC, shall verify and satisfy himself that the ownership and
title of the land proposed for surrender is with the applicant, and get the Record of Right to be corrected
in the name of Planning Authority.
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Respondent No.3 (MCGM) without any encumbrances. He
submitted that in the present case, the land was
admittedly surrendered to Respondent No.3 (MCGM) by
the Petitioners only on 22nd March 2019, which was (i)
well beyond one year from the date of the said
Notification and (ii) was also after the DCPR 2034 had
come into force. He submitted that, therefore, clearly, the
provisions of the said Notification would not apply to the
Petitioners.
14. Mr Manek then invited our attention to the
Petitioners' application dated 24th January 2017 and
submitted that the same was absent of any clarity on the
area of the said plot and the necessary details regarding
access to the said plot. He pointed out that all of these
were vital to determine whether the Petitioners would, in
fact, be eligible for the grant of incentive TDR under the
said Notification. He then submitted that the Petitioners'
application dated 24th January 2017 being inchoate and
incomplete would not, therefore, make the Petitioner
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eligible for the grant of incentive TDR under the said
Notification.
15. Mr. Manek pointed out that the Petitioners'
reliance upon its architect's letter dated 3rd May 2018 was
also entirely misplaced. He pointed out that Respondent
No.3 (MCGM) had vide its letter dated 20th July 2018, in
response to the Petitioners' architect's letter, had pointed
out that the said plot was not inter alia accessible from
the Municipal Road and there was also an ambiguity in
the area of the said plot. He pointed out that by the said
letter, it was brought to the Petitioners' notice that once
all these lacunae in the Petitioners' application were filled
in, the application would be processed on merit. Mr.
Manek submitted that the Petitioners had deliberately not
mentioned this letter in the body of the Petition or dealt
with the same.
16. Mr. Manek then submitted that since the new
Regulation had come into force on 1 st September 2018
and the said plot had neither been surrendered to nor
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vested in Respondent No.3 (MCGM) before 1 st September
2018, no incentive TDR could be issued to the Petitioners
in terms of the said Notification. He pointed out that
possession of the said plot was admittedly handed over to
Respondent No.3 (MCGM) only on 22nd March 2019. He
also pointed out that the Petitioners had executed the
relevant indemnity bond and agreement of permanent
right of way on 23rd March 2019 and 11th April 2019
respectively, which was much after DCPR 2034 had come
into force. Thus, he submitted that it was the provisions
of DCPR 2034 that would apply and not the notification.
He submitted that the Petitioners' contention that
Respondent No. 3 was retrospectively applying DCPR
2034 was therefore entirely misconceived and untenable.
He submitted that the Petitioners' reliance upon the
judgements in the case of J. S. Yadav (supra) and
Vishwas Bajirao Patil (supra) was also, therefore,
wholly inapplicable and would be of no assistance to the
Petitioners.
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17. Mr. Manek then equally submitted that the
Petitioners' reliance upon the judgement of this Court in
the case of Apurva Natvar Parikh & Co. Private
Limited (supra) was also of no assistance to the
Petitioners. He pointed out that, in fact, the judgement
amplified the Respondents' case since the same expressly
held as follows, viz.
"54. The contention of the learned Advocate General based
on the decision of the Apex Court in the case of Howrah
Municipal Corporation v. Ganges Rope Co. Ltd. (supra)
was that where applications are pending for grant of
benefit in terms of clause (6) of Appendix-VII on 16 th
November 2016, they will be governed by the impugned
notification. In the said decision in the case of Howrah
Municipal Corporation v. Ganges Rope Co. Ltd. (supra),
it was held that when application for grant of building
permission is made, the same has to be decided in
accordance with the rules prevailing on the date the
application is considered and not the date on which it is
made. With greatest respect, the application for grant of
additional TDR made under clauses (5) and (6) of
Appendix-VII in respect of a land surrendered by the
owner or lessee on which he has constructed the
amenity at his own cost cannot be equated with an
application made for grant of building permission. In
case of application invoking clause (6) of Appendix-VII,
the condition precedent for grant of additional FSI is
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already complied with by spending considerable amount
for developing amenity. The acquisition under clause (b)
of sub-section (1) of section 126 of the MRTP Act can be
made only by mutual agreement and, therefore, it is
open to the Municipal Corporation not to accept
surrender of the land and in such a case, recourse can
be taken to clause (a) or (c). In cases where such
surrender has been accepted by the Municipal
Corporation, a right accrues to the owner or lessee to
get compensation in terms of clause (b) of subsection
(1) of section 126 of the MRTP Act as per DCRs
prevailing on the date of surrender as the surrender
takes place by a mutual agreement. In fact, on
surrender, the vesting in the said Corporation is
complete. After having accepted the surrender, if the
Municipal Corporation refuses to give TDR as per the
prevailing DCR on the date of surrender or on the date
of completion of construction of amenity, it will amount
to violation of the right under Article 300A of the
Constitution. Hence, the argument of retrospective
operation cannot be accepted.
59. An additional FSI or TDR in term of clause (6) of
Appendix-VII as well as in terms of clause (1) of
Regulation 33 becomes available on surrender of the
land reserved with or without amenity as the case may
be. After 17th June 2010, if there is a surrender of land
reserved for road or road widening on which road is
constructed by the owner or lessee, the FSI or TDR will
be available in respect of amenity of road as per
Regulation 33(1) as amended. Therefore, the right to
get FSI/TDR accrues at the time of surrender. But on the
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ground of delay and laches, a Writ Court can refuse to
enforce the right. We have already held that the decision
of the Apex Court in the case of Howrah Municipal
Corporation v. Ganges Rope Co. Ltd. (supra) will have
no application to the case of grant of TDR. The reason
being is that the provision in DCR for grant of TDR
against surrender of reserved land or surrender of
reserved land after developing the amenity thereon will
have a direct nexus with clause (b) of sub-section (1) of
section 126 of the MRTP Act. In a sense, the additional
FSI or TDR is payable by way of compensation under
clause (b) of sub-section (1) of section 126. Therefore,
the argument that the notification dated 16th November
2016 will have retroactive operation in the sense that it
will apply to all pending applications for grant of TDR
cannot be accepted as the right accrues on the
surrender of the land. Therefore, now we turn to the
facts of individual cases."
(emphasis supplied)
Basis the above, he submitted that there was no manner
of doubt that the date which is to be considered for giving
incentive TDR would be the date of surrender of the
property in question and not the date on which such
proposal was made.
18. Mr. Manek submitted that the Petitioners had
failed to demonstrate as to how, in these circumstances,
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there was a concluded contract between Respondent No.3
(MCGM) and thus reliance by the Petitioners upon the
judgement of this Court in the case of Shree Vinayak
Builders And Developers, Nagpur (supra) would be of
no assistance to the Petitioners since the judgement in
the said case made it clear that as per section 126(1)(b)
of MRTP Act, a the right in favour of the Petitioner would
only accrue on surrender of land or communication of
acceptance of the condition to surrender the land, after
approval of proposal for grant of TDR. Basis this, he
submitted that in the facts of the present case, the land
was neither surrendered before DCPR 2034 was notified
nor had Respondent No.3 (MCGM) approved the proposal
for the grant of TDR before DCPR 2034 had come into
force.
19. Mr. Manek then invited our attention to
Regulation 32 of the DCPR 2034 which he submitted
replaced Regulation 34 of the DCR 1991. From Regulation
32 of the DCPR 2034, he pointed out that the same
specifically provided grant of "additional/incentive
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Transferable Development Rights (TDR) to the extent of
10% and 5% of surrendered land area shall also be
allowed to the land owners who submit the proposal for
grant of Transferable Development Rights (TDR) and if
land is surrendered to MCGM within 24 months and 36
months respectively from the date of coming into force of
these regulations". He thus submitted that Regulation 32
of the DCPR 2034 now made explicit what was previously
implicit in Regulation 34 of DCR, 1991, i.e., there has to
be surrender of the subject property to avail of the
benefit of TDR.
20. Mr. Manek then submitted that since the
Petitioners had surrendered the said plot to Respondent
No.3 (MCGM) on 22nd March 2019, which was within 24
months from 2018, the Petitioners were entitled to only
10% of TDR and not 20% as claimed by the Petitioner. It
was thus he submitted that because the Petitioners had
failed to show (a) a concluded contract; (b) that
Respondent No.3 (MCGM) had retrospectively applied the
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new Regulation and (c) any vested right, this Petition
deserves to be dismissed.
21. We have heard Learned Counsel for the Parties
considered the rival contentions, the case law cited, as
also the relevant provisions of the said Notification and
the MRTP Act and have no hesitation in holding that the
Writ Petition is entirely misconceived for the following
reasons, viz.
A. A plain reading of clauses 4.1.2 and 7 of the said
Notification read with Section 126 (1)(b) of the
MRTP Act makes clear that the entitlement to the
incentive TDR would only be upon surrender of the
land in question and not merely on the filing of an
Application within one year from the date of the said
Notification. In our view, this was put beyond the
realm of any doubt by the Division Bench of this
Court in the case of Apurva Natvar Parikh & Co.
Private Limited (supra), in which this Court
specifically held "the right to get FSI/TDR accrues at
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the time of surrender". Hence, the Petitioners'
contention that a vested right had accrued in favour
of the Petitioners on the filing of the said Application
is also without any substance since, in fact, there
was no surrender of the land at any time prior to the
DCPR 2034 coming into force. The vested right, if
any, might only have accrued in favour of the
Petitioners had the Petitioners (i) surrendered the
land or (ii) entered into an Agreement with
Respondent No. 3 before the coming into force of
the 2034 DCPR. Hence, the judgements in the case
of Apurva Natvar Parikh & Co. Private Limited
(supra) and Shree Vinayak Builders And
Developers, Nagpur (supra) upon which the
Petitioner placed reliance would thus have
absolutely no application to the Petitioners' case. In
fact, the observations in Apurva Natvar Parikh &
Co. Private Limited (supra) support the
Respondent's case.
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B. The Petitioners' contention that a concluded contract
had come into existence between the parties is also
devoid of any merit. The LOI upon which the
Petitioners have placed reliance explicitly records " ...
request to grant "Development Right Certificates" in
lieu of the aforesaid land will be further considered
after complying with following requirements". Thus,
ex facie, the issuance of this LOI could never be
construed to mean that a concluded contract
between the Parties had come into force as
suggested by the Petitioners. Also, it is crucial to
note that though the Petitioner has relied on the
letter dated 3rd May 2018 to submit that the
Petitioners had complied with the conditions of the
LOI, the Petition suppresses and makes no mention
of the letter dated 20th July 2018 issued by
Respondent No. 3 whereby Respondent No. 3 inter
alia pointed out that LOI was not fully complied
with. Thus, clearly, the letter dated 3rd May 2018
could never be construed to mean that the
16th August 2024
Bholenath Developers Ltd. & Anr. v The
State of Maharashtra & Ors.
Judgment-WP 2576-19.doc
Petitioners had complied with the LOI or had, by
virtue thereof, surrendered the land in question.
C. Equally untenable is the Petitioners' contention that
if the Petitioners were not granted the benefit of the
incentive TDR under the said Notification, it would,
retrospectively applying the provisions of the DCPR
2034. As we have already noted above, for any such
vested right to have accrued in favour of the
Petitioners, what was paramount was for the
Petitioners to have, in fact, surrendered the said
land. This surrender happened only on 22nd March
2019, after the DCPR 2034 had come into force.
Hence, clearly, the said Notification would not apply
to the Petitioners' Application. Given that we have
held that there was, in fact, no retrospective
application of DCPR 2034, the judgement in the
case of J S Yadav (supra) and Vishwas Bajirao
Patil (supra) upon which the Petitioners placed
reliance would be of no application.
16th August 2024
Bholenath Developers Ltd. & Anr. v The
State of Maharashtra & Ors.
Judgment-WP 2576-19.doc
22. As referred to above, Clause 4.1.2 and Clause
7.1 of the Notification provide that the entitlement to
additional TDR was only after the surrender of the land
and that it was incumbent upon Respondent No.3 (MCGM)
to verify and satisfy qua the ownership and title of said
plot. Clause 4.1.2, read with Clause 7 of the said
Notification, makes it clear that a claim for TDR could be
considered when the subject property was surrendered to
Respondent No.3 (MCGM) without any encumbrances. In
the present case, the land was admittedly surrendered to
Respondent No.3 (MCGM) by the Petitioners only on 22 nd
March 2019, which was (i) well beyond one year from the
date of the said Notification and (ii) was also after the
DCPR 2034 had come into force. Given such undisputed
facts, the contentions about retrospectivity or entitlement
cannot be accepted.
23. The Petitioners' reliance upon its architect's
letter dated 3rd May 2018 was also entirely misplaced.
Respondent No.3 (MCGM) had vide its letter dated 20 th
July 2018, in response to the Petitioners' architect's letter,
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Bholenath Developers Ltd. & Anr. v The
State of Maharashtra & Ors.
Judgment-WP 2576-19.doc
pointed out that the said plot was not inter alia accessible
from the Municipal Road and there was also an ambiguity
in the area of the said plot. It was brought to the
Petitioners' notice that once all these lacunae in the
Petitioners' application were filled in, the application will
be further considered after complying with following
requirements. The requirements or requisitions were
never complied with before the notification, allowing
additional TDR/FSI entered force. The compliances, if at
all, were on or about 22nd March 2019, when the
Petitioners actually surrendered the land in question. In
such facts, none of Mr. Mone's contentions, including the
contention based on the concluded contract theory, could
be accepted.
24. Hence, for the aforesaid reasons, the Petition is
dismissed. There shall be no order for costs.
(Arif S. Doctor, J) (M. S. Sonak, J)
16th August 2024
