Bombay High Court
Saranga Anil Kumar Aggarwal vs State Of Maharashtra Through Its ... on 2 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:31-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3087 OF 2023
Smt. Saranga Anil Kumar Aggarwal ]
carrying on business in the Name ]
and style of M/s Skyline Construction ]
Company as the proprietor thereof at ]
RNA Corporate Park, Next to Collector ]
Office, MSD, Kalanagar, Bandra (East), ]
Mumbai 4000 511, through her constituted ]
attorney Mr. Anubhav Aggarwal vide ]
Power of Attorney dated 29/11/2014. ] ... Petitioner.
V/s.
1. State of Maharashtra ]
Through its Principal Secretary ]
Urban Development Department-I, ]
Mantralaya, Mumbai 01. ]
2. Mumbai Metropolitan Region ]
Development Authority having its ]
office at MMRDA Building, ]
Bandra-Kurla Complex, Bandra (East), ]
Mumbai 400 051. ]
3. The Metropolitan Commissioner, MMRDA ]
having his office at MMRDA Building, ]
Bandra-Kurla Complex, Bandra (East), ]
Mumbai - 400 051. ] ... Respondents
WITH
INTERIM APPLICATION (L) NO.28840 OF 2024
WITH
ASHWINI CONTEMPT PETITION (L) NO.11933 OF 2024
H WITH
GAJAKOSH
INTERIM APPLICATION (L) NO.31426 OF 2023
Digitally signed by
ASHWINI
GAJAKOSH
Date: 2025.01.02
12:13:24 +0530
1/18
::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:28:54 :::
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______________________________________
Mr. Nitin Thakkar, Senior Advocate, a/w Mr. Cherag Balsara, Mr. Yogesh
Patil, Mr. Aniruth Purushothaman and Mr. Joshua Borges, i/by Mr. Parth
Shah for the Petitioner.
Mr. Milind More, Addl. GP for Respondent-State.
Dr. Birendra Saraf, Advocate General, a/w Mr. Akshay Shinde and Mr.
Vaibhav Charalwar for Respondent Nos.2 and 3.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 11th December 2024.
PRONOUNCED ON : 2nd January 2025.
Judgment (Per : Kamal Khata, J) :-
1) By this Writ Petition, filed under Article 226 of the Constitution of
India, the Petitioner seeks the following reliefs:
"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 to declare that the Petitioner is entitled to
land Transferable Development Rights (TDR) in the form of
Development Rights Certificates (DRC) under all three
Tripartite Agreements in respect of land surrendered under
the Scheme in accordance with DCPR 2034 i.e. at twice the
land area (as per Sub-Clause 4.1.1 of Regulation 32 in Table
12-A.
b) 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, directing the Respondents to issue a
recommendation letter to MCGM for release and issuance of
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DRCs for Land TDR to the Petitioner for the entire land area
at the rate specified in DCPR 2034 i.e. the DRCs for the
balance land TDR of 19,436.24 sq. meters and also to direct
the Respondents to permit the Petitioner the DRC so issued
to be utilized as per DCR 1991 as the said Scheme is
permitted to be completed in accordance with DRC, 1991 as
per sub-clause 11.2 (1) of Regulation 33 (10) of DCPR 2034.
c) 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, directing the Respondents to issue a
DRCs for Land TDR to the Petitioner as set out in prayer
clause (a), (b) and (c) above.
d) that pending the hearing and disposal of the Petition the
Respondents be directed by an interim order to issue or
arrange for the MCGM to issue DRCs for Land TDR to the
Petitioner for the entire land area at the rate specified in
DCPR 2034 ie the DRCs for the balance land TDR of
19,436.24 sq. meters as set out in prayer clause (a) and (b)
above within a period of no more than four weeks from the
date of such order passed by this Hon'ble Court;
e) for costs
f) for such further and other reliefs, as this Hon'ble Court
may deem fit and proper in the facts and circumstances of
the case."
BRIEF FACTS:
2) Petitioner is a developer and Constituted Attorney of the
original landowner, a textile processing corporation, which offered 37,935
square meters of land at village Goregaon, Oshiwara District Centre, for a
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Slum Rehabilitation Scheme specifically for construction of tenements for
'Project Affected Persons' (PAPs) in accordance with clause 3.11 of
Appendix IV of Development Control Regulations (DCR)1991, Regulation
33 (10).
2.1) The said land, forms part of the notified Oshiwara District
Centre area, for which the Petitioner's Slum Rehabilitation Scheme (SR
Scheme) was approved by the MMRDA, designated as a Special Planning
Authority under Section 40 of the MRTP Act, 1966.
2.2) The Petitioner executed a Tripartite Agreement dated 5th
August 2003 for development of the SR scheme under which the Petitioner
agreed to construct and provide tenements to PAPs identified by the
Respondent No.2 for rehabilitation of slum dwellers from the area required
to be cleared for the Mumbai Urban Infrastructure Project ("MUIP"). As
consideration, the Respondent No.3 agreed to grant DRCs as per DCR 33
(10) read with clauses 3.11, 3.5 and 3.19 (II) of Appendix IV of DCR 1991.
2.3) During the project's implementation, the Petitioner acquired
development rights of the adjoining lands admeasuring 11,165.1 sq. mts
and submitted a revised proposal to the MMRDA for including it in the
earlier sanctioned scheme making it to a total of 49,100.4 sq.mts of land.
The MMRDA accorded its sanction to the revised scheme and issued a
revised Letter of Intent (LOI) on 20th June 2005. Pursuant to the issuance
of the revised LOIs', two further Tripartite Agreements, dated 12th August
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2005 and 17th August 2005 were executed between the Petitioner and
Respondents Nos.1 and 2 for construction of tenements for PAPs on the
additional land on the same terms and conditions.
2.4) In the meantime, the State Government vide Notification dated
8 May 2018, notified the Development Control and Promotion Regulations,
2034 ("DCPR 2034") for Mumbai under which the Petitioner would be
entitled to 76,986.24 sq. mts computed at 2 times of 38,493.12 square
meters.
2.5) The Petition asserts that, under the express/ specific terms of
the Tripartite Agreement, since DCPR 2034 is applicable, the Petitioner is
entitled to an additional land TDR at the rate of 0.5 times of 38,493.12 sq.
mts i.e. 19,436.24 square meters.
2.6) Under the Scheme the Petitioner surrendered the
lease/transferred the land admeasuring 49,100.40 sq. mts., has availed of
land TDR of 7981.61 sq. mts., towards reservation of road, and 2625.67 sq.
mts for Rehab tenements, leaving a balance of 38,493.12 sq. mts. Under
DCR 1991, the Petitioner was entitled to Land TDR of 57,739.68 sq. mts
computed at 1.5 times of 38,493.12 sq.mts. The Petitioner completed 15
rehab buildings out of the total 16 rehab buildings and have also received
occupation certificates for the same. The Petitioner is in the process of
constructing the 16th Rehab building in the project.
2.7) Petitioner's made representation dated 23rd July, 2020 to
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Respondents Nos. 2 and 3 followed by several letters and representations in
this regard has not yet been considered. The Respondents have neither
disputed nor objected to the Petitioner's claim. Consequently, the Petitioners
contend that they are illegally and arbitrarily deprived of their express
entitlements under the Tripartite Agreements. Left with no other remedy,
the Petitioner filed this Petition.
3) In the first round, the Petition was allowed by an Order dated
11th October 2023 thereby granting additional TDR to the Petitioners in
terms of the Tripartite Agreement and in accordance with the Table 12A of
Regulation 32 of DCPR 2034.
3.1) Aggrieved by this Order the 2nd Respondent filed SLP (L)
No.27047 of 2023. The Hon'ble Supreme Court was pleased to set aside the
Order dated 11th October 2023 and the matter was remanded by for
reconsideration on merits in accordance with law after hearing both sides.
3.2) Therefore, in furtherance of Supreme Court Order dated 3 rd
September 2024 in SLP (L) No.27047 of 2023 this Petition was taken up,
out of turn for hearing and was finally heard on 11th December 2024.
4) Mr. Nitin Thakkar learned Senior Counsel for the Petitioner
highlighted clauses 4, 9 and 10 of the Tripartite Agreement on which the
Petitioner's claim is founded. The relevant clauses are reproduced herein
below for ready reference:
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"4. The Deemed S.R.A. hereby confirms that the proposed
Project of construction of Rehabilitation Component by the
Developer in pursuance of this Agreement on the said
property is as per Clause 3.11 r/w 3.5 & 3.19(ii) of Appendix
IV of DCR 33(10) (Notification dated 15 th October, 1997),
and Authority proposes to rehabilitate slum dwellers which
are to be cleared for public purpose of MUIP and the
Developer is entitled to get the benefit of the F.S.I. of the
entire land under this scheme in the form of land T.D.R.. It is
agreed that the land T.D.R. for the F.S.I. In respect of the
land component for the said property excluding the
encroachment will be given or cause to be given, as per the
ratio of F.S.I. prevalent at the time of signing of this Ieement,
by the Deemed SRA, to the Developer as herein mentioned.
The Developer will get the Land TDRA for the area under
encroachments only when the developer rehabilitates the
said encroachers in the proposed free sale residential
building. It is clarified that any higher FSI ratio in respect of
the land component, if available, hereafter due to any
change in the Development Control Regulations upto the
time of issue of last D.R.C. in respect of the last building
under the Rehabilitation Component as per prevailing
Government of Maharashtra guidelines/policy for R&R or
issue of last DRC in respect of the land component
whichever is later will be given by the Deemed SRA at the
time of such change for the entire land component
irrespective of the fact that part TDR/D.R.C. was issued
earlier for the said land component as per this Agreement.
9. The "Deemed SRA" and the "Authority" do hereby agree
and confirm that the "Developer" shall be entitled to the
following: -
i. T.D.R.in the form of D.R.C. on the basis of
clause 3.11 read with 3.5 and 3.19(ii) read with 3.5
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in respect of the said area comprised in the said
Rehabilitation Component (D.R.C. for Rehab
Component).
ii. T.D.R. in respect of the land Component which
is declared to be part of approved Slum Rehabilitation
Project in this Agreement.
iii. To use the TDR as per Clause (i) of this
agreement.
iv. It is clarified that any higher FSI ratio, if
available, on account of modified development
control regulations and as admissible under SRA
Policy of the Government of Maharashtra before
Occupation Certificate in respect of the last of the
building of the said rehab component is received and
before the last D.R.C. is received by the Developer
then the Developer will be entitled for such additional
benefits, if any, as admissible under the modified SRA
policy/guidelines.
10. The Authority doth hereby confirm that any change or
modification in the Guidelines/Policy of Slum Rehabilitation from
the date hereof, but before the grant of Occupation certificate to the
last Rehabilitation building and before the last D.R.C. is issued which
results into any benefit to Developer by way of any reduction in levy
charges per tenement or per sq. meter or any higher TDRA or any
other benefit, then the Developer shall automatically become
entitled to the benefit of all such changes or additions and the same
will apply to this Agreement Mutandis-Mutandis as Applicable to
other or other such schemes for Rehabilitation of Slum Dwellers,
otherwise the terms of this Agreement shall prevail. The Developer
has entered into this Agreement on the specific assurance and
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covenant as recorded herein by the Deemed SRA and the Authority
in favour of the Developer."
(Emphasis supplied)
4.1) Referring to the above, he argued that these clauses clearly
establish the Petitioner's entitlement to an enhancement of the DRC for the
the land component, in accordance with the regulations prevailing either at
the time of completion of the last building or at the issuance of the final
DRC, which in this case is governed by DCPR 2034. He further contended
that the Tripartite Agreement does not require the Petitioner to undertake
either the entire construction or the balance construction in accordance
with the subsequent regulations as a condition for receiving the enhanced
DRC under the subsequent resolutions.
4.2) Referring to MMRDA's reply to the Petition, which asserts that
under clause 11 of the Regulation 33(10) of DCPR 2034 and Regulation 9
(6), the developer has the option to convert the entire scheme or the
balance development of the scheme under DCPR 2034 in order to be
entitled to the additional benefits, Mr Thakkar respectfully disagrees,
asserting that this interpretation is unfounded.
4.3) Mr. Thakkar argued that, the Petitioner has unequivocally acted
in accordance with the terms and conditions of the Tripartite Agreement.
Consequently, the Respondents are estopped from making any claims or
assertions that contradict the provisions of the agreement. He further
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contended that, as per clauses 4, 9 (iii), and 10 of the Tripartite Agreement,
the Petitioner is entitled to the benefits as outlined in table 12A of the DCPR
2034.
4.4) Moreover, Mr Thakkar disagreed with the Respondent's
assertion that the terms and conditions of DCPR 2034 should prevail over
the Tripartite Agreement, arguing that such an interpretation is
misconceived. He emphasized that Clause 32 of the Agreement explicitly
addresses potential conflicts between the Tripartite Agreement and
prevailing laws. Additionally, he pointed out that the Letter of Intent (LOI)
was issued prior to the implementation of DCPR 2034, rendering reliance
on clause 11 of DCPR 2034 misplaced.
4.5) Referring to the judgment of the Supreme Court in the case of
Jamshed Hormusji Wadia V/s. Board of Trustees, Port of Mumbai and
Another reported in (2004) 3 SCC 214, particularly paragraphs 16, 18 and
19, Mr. Thakkar submitted that, the State and its Authorities including the
instrumentalities of the State have to be just, fair and reasonable in all their
activities including those in the field of contracts. He submitted that, while
the State is permitted to augment their resources, it cannot dilute or
eliminate its object to serve the public cause and to do public good by
resorting to fair and reasonable methods.
4.6) Contemplating an argument on maintainability of the Writ
Petition, Mr. Thakkar referred to the Supreme Court judgment in the case of
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Gas Authority of India Limited V/s. Indian Petrochemicals Corporation
Limited and Others reported in (2023) 3 SCC 629 to submit that, the Writ
jurisdiction can be invoked when the State fails to act with fairness or
engages in discriminatory practices against a party. He contended that, in
the present case, the Respondents had failed to uphold the required
standard of fairness, thereby making the Writ Petition maintainable.
4.7) In conclusion, Mr Thakkar asserted that the Petitioner is
entitled to the additional benefit of an extra 0.5 TDR without need to fulfill
any further obligations.
5) Per Contra Dr. Saraf learned Advocate General appearing for
Respondent Nos 2 & 3, asserted that the Petition is not maintainable. He
referred to the prayer in the Petition, which sought a declaration of
Petitioner's entitlement.
5.1) Dr Saraf cited the Supreme Court judgment in the case of
Rajasthan State Industrial Development and Investment Corporation and
Another V/s. Diamond and Gem Development Corporation Limited and
Another reported in (2013) 5 SCC 470, particularly emphasizing on
paragraphs 19 to 22. He submitted that the judgement clarified that a Writ
cannot be issued to create or establish a legal right but only to enforce an
already established one. He argued that the Petitioner's right or entitlement
under the Tripartite agreement had not been admittedly crystallized and
therefore the writ was not maintainable.
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5.2) Dr. Saraf further referred to the judgement in Shabbi
Construction Company V/s. City and Industrial Development Corporation
and Another reported in (1995) 4 SCC 301, which dealt with similar
arguments. In this case, the Supreme Court rejected the Petitioners
arguments, holding that the doctrine of promissory estoppel cannot compel
the public bodies or government to carry out representations or promises
that are contrary to law or outside their authority.
5.3) He also relied on the judgment in Shree Sidhbali Steels Limited
And Others V/s. State of Uttar Pradesh And Others reported in (2011) 3
SCC 193 : 2011 SCC OnLine SC 213, particularly paragraphs 32 and 33. He
contended that, the Supreme Court has held that for the doctrine of
promissory estoppel to apply, the promisee must establish that he suffered a
detriment or altered his position relying on the promise. It further held that
if it could be shown by the government that, having regard to the facts as
they have subsequently transpired, it would be inequitable to hold the
government with a promise made by it, the Court would not raise an equity
in favour of the promisee and enforce the promise against the government.
It further held that where public interest warrants, the principles of
promissory estoppel cannot be invoked. He submitted that the judgment
also observed that the authority cannot be compelled to do something
which is not allowed by the law or prohibited by the law. Consequently, the
doctrine of promissory estoppel cannot be invoked for the enforcement of a
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promise made contrary to the law because none can be compelled to act
against a Statute.
5.4) Dr. Saraf then submitted that, in the present case, the Petitioner
had not suffered any detriment or altered his position as such. He
contended that the Petitioner simply sought the benefits of the new
regulations without fulfilling the conditions under the new regulations. He
submitted that this would be not only contrary to the law but also to the
public interest.
5.5) Referring to clause 9(iv) of the Tripartite Agreement, Dr. Saraf
pointed out that, the words 'if available' and 'as admissible' (underlined
hereinabove) were crucial to the context and had been overlooked by the
Petitioners. He argued that, these words would clearly indicate that the
Petitioner could claim benefits only if they were in consonance with the
DCPR 2034. Furthermore, he submitted that the Petitioners had not applied
for the conversion of the scheme from the 'old one' to the 'new one' as
contemplated under DCPR 2034. He clarified that, had the Petitioner
applied for such a conversion, the Respondents would have readily offered
extended the benefits under the new Regulations. Relying on Clause 11 of
the DCPR 2034, he contended that the Petitioner could only claim DRC
benefits under the DCPR 2034, if they undertook construction under the
new regulations or completed the balance construction as per DCPR 2034.
5.6) In conclusion, Dr Saraf argued that the Petitioner could not
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claim an entitlement that was neither crystallized nor in accordance with
the law. Therefore, he submitted that the Petition should be dismissed.
Reasons and conclusions
6) We are unable to agree with Mr. Thakkar's contentions on both
counts - namely, the maintainability of the Petition and on entitlement of
benefit under the DCPR of 2034.
7) This Petition essentially seeks a declaration that a developer
under the Slum Rehabilitation Scheme (SR Scheme), who commenced
development and will complete it as per the provisions of the old DCR
1991, is entitled to the benefits provided under the new DCPR 2034 based
on the said Tripartite Agreements. This contention must be rejected, as it
would undermine the very objective of the beneficial provisions introduced
under DCPR 2034.
8) Consequently, the Petitioner's contention that they propose to
utilize the Development Right Certificates (DRCs) as outlined in 10 (a) or
(b) of the old DCR 1991, rather than the broader provisions of the new
DCPR 2034, which allows for their use "anywhere in Mumbai City area
(Island city) and Mumbai Suburban/Extended Suburban area," as governed
by the formula in new DCPR 2034 must be rejected.
9) In our view, Clause 32 of the Tripartite Agreement is explicit in
its terms is reproduced hereunder for ready reference:
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"32. The terms & conditions of Letter of Intent, Layout
Approval, Intimation of Approval, Commencement Certificate,
Occupation Certificate etc. all approvals issued and/or to be
issued by the Deemed Slum Rehabilitation Authority shall be
treated as part and parcel of this Agreement.
It is declared that the Developer has entered into this
Agreement with the Authority, if any terms & conditions of this
agreement are/is inconsistent and/or contradictory with the
terms & conditions of said Agreement (Contract Agreement
and/or Consensual Agreement) and/or Letter of Intent, Layout
Approval, Intimation of Approval, Commencement Certificate,
Occupation Certificate etc. all approvals issued and/or to be
issued by the Deemed Slum Rehabilitation Authority and/or
any provisions of Slum Act, 1971, Development Control
Regulations, Prevailing Government Guidelines, Policy
Decisions and/or Practices followed by SRA in this respect then
the terms & conditions of the latter shall prevail over the terms
& conditions of this agreement."
(Emphasis supplied)
10) This Clause unequivocally establishes that, the terms and
conditions of DCR, prevailing government guidelines, policy decision and
practices followed by the SRA shall prevail over the provisions of the
Agreement. Furthermore, it clarifies that the provisions of DCPR 2034 will
only apply if the scheme is fully converted or partially converted for the
balance development, as per clauses 11 of Regulation 33 (10) and
Regulation 9 (6) of the DCPR 2034.
11) The Clauses 11 of Regulation 33 (10) and Regulation 9(6) are
reproduced hereinbelow for ready reference.
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"11. Conversion of Old Project into New Project.
11.1 Provision of the Regulation 9(6) shall be applicable.
Provided further that Projects, where LOIC has been
granted, shall be treated as per the DCR provisions
existing on the date of LOI. In case such a project
comes up for revised LOI or change of developer or any
other change, including recording and resubmission
without change in slum boundary, prevailing DCR
provisions shall apply."
11.2 Exceptions
1) Schemes approved prior to coming into force of these
Regulation:
The slum rehab schemes where LOI has been issued by
SRA prior to the date of coming into force of these
Regulations and which is valid may continue to be
governed by the regulation applicable prior to these
Regulations."
"Reg 9(6) Applicability to partially completed works:
(a) for works where IOD/IOA has been issued or for
ongoing partially completed works, started with due
permission before these Regulations have come into
force, the developer/owner may continue to complete
the said works in accordance with the conditions under
which permission stood granted. However, the period
of the development permission granted shall not
exceed that specified in section 48 of the MR&TP Act,
1966 or at the option of owner/developer, the proposal
can be converted as per DCPR-2034 in toto.
(b) In case of such plots or layouts that started with due
permission before DCPR 2034 have come into force, and if the
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owner/developer, at his option, thereafter seeks further
development of plot/layout/buildings as per DCPR 2034, then
the provision of DCPR 2034 shall apply to the balance
development. The development potential of such entire plot
shall be computed as per DCPR 2034 from which the
sanctioned FSI of buildings/part of buildings Plaintiff are
proposed to be retained as per Plaintiff proved Plaintiff and as
per then Regulations, shall be deducted to arrive at the balance
development potential of such plot or layout."
12) In the present case, the Petitioner's has neither converted the
scheme entirely under the new DCPR nor sought to apply its provisions for
the balance development. Therefore, merely because the LOI has been
granted prior to the regulations coming into force, the Petitioner cannot
claim the benefits under the new DCPR 2034, however according to us is
entitled under the 1991 DCR only.
13) Accepting Mr. Thakkar's contention would amount to granting
largesse to the developer without he fulfilling any obligations provided
under DCPR 2034.
14) In our view, Mr. Thakkar's interpretation of the contractual
terms, is ex facie contrary to law and public interest and consequently
unenforceable as held by the Supreme Court in Shree Sidhabali Steels
Limited (Supra). The new DCPR grants additional benefits to the
developers only when they either adopt the new scheme in its entirety or
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apply it to the remaining portion of an incomplete project.
15) Any interpretation of the law that allows a developer to gain
benefits without additional efforts would contradict the legislative intent.
The language of the regulations does not support such an outcome.
16) In our view, the Petitioner's entitlement for land TDR in form of
DRC has admittedly not been crystallized as the Petition itself seeks a
declaration. Therefore, the principle established in the case of a Rajasthan
State Industrial Development and Investment Corporation (supra) that a
Writ cannot be issued to establish or create a legal right but only to enforce
an already established one applies here. Consequently, this Writ Petition
that seeks a declaration of entitlement is not maintainable.
17) In light of the above reasoning, we dismiss the Petition, with no
order as to costs.
18) In view of the dismissal of the Petition, the Contempt Petition
and Interim Application do not survive and are accordingly disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
