Judgment dated 13th September 2024
Cause title : KUKREJA CONSTRUCTION COMPANY & OTHERS VS STATE OF MAHARASHTRA & OTHERS
Case No: Civil Appeal No. 9702/2024
A Bench of Supreme Court Judges Hon'ble Justice B.V. Nagarathna and Hon'ble Justice Nongmeikapam Kotiswar Singh allowed Civil Appeals filed by the Writ Petitioners in which the Writ Petitions were dismissed on the ground of delay and laches. The High Court considered the writ petitions filed by the appellants on the issue concerning the implementation of the decision of Supreme Court in Godrej & Boyce Manufacturing Company Limited vs. State of Maharashtra, (2009) 5 SCC 24. The said decision dealt with Regulation 34 read with Para 6 of Appendix-VII to the Development Control Regulations for Greater Bombay, 1991.
Facts of the case are:
The writ petitioners before the High Court were holding plots of
land shown as reserved in the sanctioned development plan under the
provisions of the Maharashtra Regional and Town Planning Act, 1966
which were reserved for Development Plan Road. According to the writ
petitioners, they constructed DP Roads at their own cost and
voluntarily surrendered the reserved lands to the Mumbai Municipal
Corporation. In lieu thereof, in terms of clause (b) of sub-section
(1) of Section 126 of the MRTP Act read with Regulations 33 and 34
as well as Para 5 of Appendix-VII of DCR, the writ petitioners were
granted Floor Space Index ("FSI" for short) and/or Transferrable
Development Rights ("TDR" for short) in the form of Development
Rights Certificates ("DRC" for short) equal to the gross area of the
plots surrendered by them. Para 6 of Appendix-VII (as it stood prior
to its amendment) provided that when an owner or a lessee also
develops or constructs the amenities on the surrendered plot at his
own cost and hands over the developed/constructed amenity to the
Municipal Commissioner, he is entitled to DRC in the form of FSI or
TDR equivalent to the area of construction/development done by him.
The expression "amenity" has been defined in sub-section (2) of
Section 2 of the MRTP Act as well as clause (7) of Regulation 3 of
DCR.
For the purpose of implementation of the DCR, two Circulars were
issued on 09.04.1996 and 05.04.2003. By Circular dated 09.04.1996,
the DRC equivalent to 15% area of the DP Road constructed by the
owner or lessee on the surrendered plot was to be provided when the
owner or lessee surrendered the developed amenity together with the
reserved plot. By Circular dated 05.04.2003, the figure was enhanced
to 25%.
In Godrej & Boyce I, this Court held that the expression
"equivalent" in Para 6 of Appendix-VII would entitle the owner or
lessee to 100% FSI or TDR for the construction of an amenity at his
cost. Therefore, FSI or TDR for construction of an amenity would not
be confined to 15% or 25% of DP Road area and it would be equivalent
to 100% of the area of the road constructed by the owner or the
lessee.
The grievance of the writ petitioners before the High Court was that
the Mumbai Municipal Corporation had declined to grant 100%
additional TDR equivalent to the area of the amenity developed. By a
notification issued on 16.11.2016, Regulation 34 of the DCR was
amended. As a result, AppendixVII was virtually obliterated from the
DCR. The notification dated 16.11.2016 was assailed and question
arose as to whether the modifications made by the notification
amending Regulation 34 of the DCR would have retrospective or
retroactive operation.
Summary of the decision of the Hon'ble Supreme Court is:
18.1 In view of the aforesaid discussion, we hold that the
Bombay High Court was not right in dismissing the writ petitions on
the ground of delay and laches. Hence, those portions of the
impugned order of the High Court are set aside.
19. We also do not find any merit in the three appeals filed by the
Mumbai Municipal Corporation. Having regard to the earlier judgments
of this Court, we find that the reasoning of the High Court on
merits in the three impugned decisions discussed above is just and
proper which would not call for any interference by this Court.
20. Consequently, the civil appeals filed by the writ
petitioners/appellants herein are allowed as under:
(i) Those portions of the impugned order dated 18.12.2018 by
which the writ petitions were dismissed on the ground of delay and
laches are set aside and the respondent Mumbai Municipal Corporation
is directed to consider the case of those writ
petitioners/appellants herein in light of the judgments of this
Court in Godrej & Boyce I and release the balance FSI/TDR to the
appellants.
(ii) However, in the case of appellant-Kukreja Construction company
and others, the Mumbai Municipal Corporation is directed to consider
the nature of the amenities constructed and thereafter to consider
their case for additional FSI/TDR.
(iii) The said exercise shall be carried out as expeditiously as
possible and within a period of three months from today.
20.1 The Civil Appeals filed by the Mumbai Municipal Corporation are
dismissed and the cases of the respondents in those civil appeals
shall be considered in terms of the judgments of this Court in
Godrej & Boyce I and the balance FSI/TDR shall be released to the
respondents therein within a period of three months from today."
Download Judgment dated 13th September 2024 in KUKREJA CONSTRUCTION COMPANY & OTHERS VS STATE OF MAHARASHTRA & OTHERS, Civil Appeal No. 9702/2024.