Civil Appeal Nos. 1746 and 2045 of 2007. Case: 1. Godrej and Boyce Manufacturing Co. Ltd, 2. Mrs. Jyotika B. Patel and Anr. Vs 1. State of Maharashtra and Ors. [Alongwith Civil Appeal Nos. 1591-1592 of 2007], 2. The Municipal Corporation of Greater Mumbai [Alongwith Writ Petition (C) No. 190 of 2007). Supreme Court

Case Number:Civil Appeal Nos. 1746 and 2045 of 2007
Party Name:1. Godrej and Boyce Manufacturing Co. Ltd, 2. Mrs. Jyotika B. Patel and Anr. Vs 1. State of Maharashtra and Ors. [Alongwith Civil Appeal Nos. 1591-1592 of 2007], 2. The Municipal Corporation of Greater Mumbai [Alongwith Writ Petition (C) No. 190 of 2007)
Counsel:For Appellant: Ashok Desai, Milind Sathe, Sr. Advs., Mahendra Ghelani, Chedda and Jay Savla, Advs. and For Respondents: Shekhar Naphade, Pallav Shishodia, Sr. Advs., Arun Pendnekar, Sanjay V. Kharde, Asha Gopalan Nair, Siddhartha Chaudhary, Bhargava V. Desai and D.N. Mishra, Advs
Judges:Markandey Katju and Aftab Alam, JJ.
Issue:Maharashtra Regional and Town Planning Act, 1966 - Section 2, 2(2), 2(7), 2(9A), 2(13A), 2(15), 2(19), 2(23-26), 2(27), 3 to 20, 21 to 42, 113(A), 125, 126, 126(1), 154, 158 and 159; Bombay Municipal Corporation Act; Land Acquisition Act, 1894 - Sections 125, 126 and 126(1); Bombay Municipal Corporation Act, 1888; Maharashtra Regional and Town ...
Citation:2009 (2) SCALE 286 , 2009 (2) UJ 499 (SC)
Judgement Date:February 06, 2009
Court:Supreme Court
 
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Judgment:

Aftab Alam, J.

1. Maharashtra town planning law has evolved, with a view to promote planned development and de-congest the highly congested areas, the imaginative concept of making, under certain circumstances, the development potential of a plot of land separable from the land itself and further letting the development rights to be transferable by the land owner. The provisions made for the development rights that arise from a piece of land and yet acquire a separate and independent existence with the added flexibility of being transferable come very useful in case of plots of land shown in the Development Plan as reserved for some public purpose or amenity that prohibits their owners from developing those plots by making any other kind of construction. In such circumstances it is open to the landowner to surrender the plot of land free of cost (and free from all encumbrances) to the municipal authorities who may acquire the land by granting to the landowner Floor Space Index or Transferable Development Rights against the area of the surrendered land. The law further provides for additional Floor Space Index or Transferable Development Rights against the development or construction of amenities (for which the plot is shown reserved in the plan) by the owner at his own cost.

2. The appellants and the petitioners in this batch of appeals and writ petition had their plots of land shown in the Development Plan as reserved for roads. They voluntarily surrendered their lands. In addition, they constructed on their respective pieces of land the Development Plan roads at their own cost and as per the specifications stipulated in the relevant rules. There is no dispute between the parties in regard to the Floor Space Index or Transferable Development Rights granted to them for the surrendered pieces of land. But the parties are in serious controversy over the extent of Floor Space Index or Transferable Development Rights for the roads constructed on the surrendered lands at the owners' cost. The landowners claim that for constructing the roads they are entitled to Floor Space Index or Transferable Development Rights for the whole of the surface area of the roads. In support of their claim they rely upon paragraph 6 of Appendix VII to the Development Control Regulations for Greater Bombay, 1991 that provides for, `...a further DR in the form of FSI equivalent to the area of the construction/development done by him (landowner)......'. The municipal authorities would, however, grant them additional Transferable Development Rights only to the extent of 15% of the road area. The stand of the municipal authorities is based on a circular dated April 9, 1996 issued by the Municipal Commissioner, Municipal Corporation of Greater Bombay. The circular envisages a graded scheme for grant of Additional Development Rights for construction of amenities by the landowner, e.g., in case of amenities like general hospital, municipal primary school etc. it allows FSI equal to the built up area of the structure but in case of DP road only 15% of the area of the road surface. On behalf of the landowners it is argued that the contents of the circular are no more than executive instructions and can not supersede or override the provisions of the Regulations which are legislative in nature; in any event the circular would only operate prospectively and have no bearing on the cases in hand since it was issued after the appellants and the petitioners had surrendered their plots of lands after constructing roads on those lands as required by the authorities. The argument is sought to be repelled on behalf of the state and the municipal authorities by taking the position that the law provides for grant of additional Floor Space Index or Transferable Development Rights commensurate to the value of the amenity constructed by the landowner and the meaning of paragraph 6 of Appendix VII to the Regulations will be clear by reading it along with the other provisions of the Regulations and the parent Act. Seen thus the circular dated April 9, 1996 would appear to be merely clarificatory and fully apply to the claims of the appellants and the petitioners. On behalf of the Municipal Corporation the claims of the appellants and the petitioners are also resisted on certain grounds of facts that we shall consider in due course.

3. This is the parameter of the dispute between the parties.

4. At this point it will be useful to refer to some of the provisions of the Maharashtra Regional and Town Planning Act, 1966 (the Act) and the Development Control Regulations for Greater Bombay, 1991 (the Regulations).

5. Section 2 of the Act contains the definitions. Sub-section (2) defines "Amenity" very widely to cover vastly different public utilities from hospitals, secondary schools and colleges to roads, streets and open spaces etc.. Section 2 (2) of the Act is as under:

(2) "amenity" means roads, streets, open spaces, parks recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences;

6. Sub-section 7 defines `Development' and Sub-section 9A defines `Development Right' as follows:

9A. "Development Right" means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilizable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide;

Sub-section 9 defines `Development Plan' to mean a plan for the development or re-development of the area within the jurisdiction of a Planning Authority and includes revision of a Development Plan and proposals of special planning authority for the development of land within its jurisdiction.

7. Sub-section 13A defines `Floor Space Index' as follows:

13 A. "Floor Space Index" means the quotient or the ratio of the combined gross floor area to the total area of the plot, viz.:

Floor Space Index = Total covered area of all floor Plot area;

8. Sub-section 15 defines `Local Authority' and expressly mentions, amongst others, the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act.

9. Sub-section 19 defines `Planning Authority' to mean a Local Authority apart from certain other bodies.

10. Sub-section 23 to 26 define `Region', Regional Board', `Regional Plan' and `Regional Planning Committee' respectively;

11. Sub-section 27 defines `Regulation' to mean a regulation made under Section 159 of the Act and includes zoning, special development control regulation and other regulations made as part of Regional Plan, Development Plan or town planning scheme.

12. Chapter II of the Act contains the provisions relating to Regional Plan under Sections 3 to 20. In this group of cases, however, we are concerned with the Regulations forming part of a Development Plan which is dealt with under Sections 21 to 42 in Chapter III of the Act. Section 21 obliges every Planning Authority to prepare a draft Development Plan for the area within its jurisdiction subject to the provisions of the Act and in accordance with the provisions of a Regional Plan, where there is such a plan. Section 22 deals with the contents of the `Development Plan'. It mandates that the Development Plans would generally indicate the manner in which the use of land in the area of the Planning Authority is to be regulated and the development of land therein is to be carried out. Further, the Development Plan would provide for, in particular the proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, and recreational. It would also contain proposals for designation of lands for many different kinds of public purposes enumerated in clauses (b) to (l) of the section. As per clause (m) of the section the Development Plan would also provide for the provisions for grant of permission for controlling and regulating the use and development of land within the jurisdiction of a local authority and the matters connected therewith.

13. Section 22A enumerates what is meant by modification of a substantial nature in the Development Plan. Sections 23 to 31 lay down the procedure for making Development Plan, including Development Control Regulations by the Planning Authority after inviting objections and submitting draft plans to the State Government. Section 31 empowers the State Government to sanction the draft Development Plan submitted by the Planning Authority. Section 37 deals with modification of final Development Plan. Chapter VII of the Act deals with Land Acquisition and Section 125 provides that any land required, reserved or designated in a Regional Plan, Development Plan or Town Planning Scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town would be deemed to be land needed for a public purpose within the meaning of Land Acquisition Act, 1894. Section 126 lays down three modes for acquisition of land required for public purposes specified in the plans. The provisions of this section are important for the cases in hand and are reproduced below in so far as relevant for the present:

126. (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in Section 113A acquire the land,-

(a) by agreement by paying an...

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