KUKREJA CONSTRUCTION COMPANY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These appeals have been filed against three impugned judgments and orders of the High Court of Judicature at Bombay, namely,

(2.) With regard to the order dtd. 18/12/2018, the writ petitioners before the High Court (appellants herein) 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 ("MRTP Act" for short) which were reserved for Development Plan Road ("DP Road" for short). 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-sec. (1) of Sec. 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-sec. (2) of Sec. 2 of the MRTP Act as well as clause (7) of Regulation 3 of DCR.

(3.) It was contended on behalf of the writ petitioners before the High Court that the unamended Regulation 33(1) of the DCR enabled the owner of the land to seek benefit of FSI of the land reserved for DP Road and utilize the same on the remaining land. Till 17/6/2010, there was no entitlement to seek FSI under Regulation 33 for construction of an amenity and the amenity TDR was available only under Regulation 34 read with Para 6 of Appendix-VII. The amendment made on 17/6/2010 to Regulation 33 resulted in the owner, who had constructed the road, instead of TDR, to opt for FSI to be utilized on the remainder of the land. He would then be entitled to an extent of 25% of the FSI. But if the owner constructed an amenity but did not avail FSI benefit on the remainder land, the benefit was separated from the land and given in the form of TDR under Regulation 34 read with Para 6 of Appendix-VII. That Para 6 of Appendix-VII was not amended as such on 17/6/2010 after the decision of this Court in Godrej and Boyce I as no amendment was carried out as such. However, by the notification dtd. 16/11/2016, the entire Regulation 34 and Appendix-VII were substituted. As per the amended provision, the owner was eligible to obtain TDR for the land at the rate mentioned in Para 4.1 of the amended Regulations as the owner who developed the amenity thereon became eligible to receive TDR in terms of Para 4.2 but by this, Regulation 33(1) did not undergo any amendment.