1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9021 OF 2014

GODREJ AND BOYCE M ANUFACTURING

COMPANY LIMITED THROUGH ITS

CONSTITUTED ATTORNEY & ANR. …APPELLANT(S)

VERSUS

THE MUNICIPAL CORPORATION OF

GREATER MUMBAI & ORS. …RESPONDENT (S)

J U D G M E N T

V. Ramasubramanian, J.

1. Aggrieved by the dismissal of their claim by the Bombay

High Court, for the grant of Development Rights Certificate

1

for a

total area of 31,057.30 sq.metres, for the construction and

development of the amenity namely “Recreation Ground”, the writ

petitioner before the Bombay High Court has come up with this

appeal.

1

For short “DRC”

2

2. We have heard Shri P. Chidambaram, learned senior

counsel for the appellants and Shri Atmaram N.S. Nadkarni,

learned senior counsel appearing for the respondents.

3. The background facts leading to the appeal on hand are as

follows:-

(i) The second Development Plan (DP 1991) for Greater

Mumbai was prepared for the period 1981 -2001 and the same

was sanctioned in parts between 1991 and 1994. In the said DP,

the plots of land bearing CTS No.2B (part) falling in N-Ward &

CTS Nos. 2B (part) and 3B falling in S-Ward were reserved for the

purpose of “Recreation Ground”;

(ii) The aforesaid plot of land was admittedly owned by

appellant No.1 herein. Appellant No.2 herein is the duly

constituted attorney of appellant No.1 in respect of the said

property;

(iii) Under Maharashtra Act 10 of 1994, clauses (a), (b) and

(c) were inserted under sub-section (1) of Section 126 of the

Maharashtra Regional and Town Planning Act, 1966 (hereinafter

called “the Act”), by way of substitution. These clauses were

inserted with effect from 25.03.1991;

(iv) Section 126 (1) conferred power upon the Planning

Authority/Development Authority, to acquire any land required

or reserved for any of the public purposes specified in any plan or

scheme, after the publication of a Draft Regional Plan

2

or a DP or

2

For short “DRP”

3

Town Planning Scheme

3

. The newly inserted clauses (a), (b) and

(c) in sub-section (1) provided 3 different methods of such

acquisition. One method of acquisition was by way of an

agreement upon payment of an agreed amount . The second

method of acquisition was by granting, in lieu of any

compensation, Floor Space Index

4

or Transferable Development

Rights

5

against the area of land surrendered free of cost and also

further additional FSI or TDR against the development or

construction of the amenity on the surrendered land. The third

method of acquisition was through the initiation of proceedings

under the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013;

(v) Vide letter dated 14.07.1994, appellant No.1 through

their Architects, “Worthy Enterprises” made an application for

surrendering land of the extent of 31,057.58 sq.metres (two plots)

which was reserved under the DP for the purpose of “Recreation

Ground”. An application for the grant of DRC was enclosed to the

said letter;

(vi) It is relevant to mention at this stage that the TDR to

be granted in lieu of compensation for acquisition of land, as

contemplated in clause (b) of sub-section (1) of Section 126

comprised of two components namely, (i) TDR equal to the area of

land surrendered; and (ii) additional TDR against the

development or construction of the amenity on the surrendered

land at the cost of the owner;

3

For short “TPS”

4

For short “FSI”

5

For short “TDR”

4

(vii) Vide another letter dated 08.10.1994, the Architect of

appellant No.1 wrote a letter to the Municipal Corporation,

expressing their intention to develop the land sought to be

surrendered;

(viii) By another letter dated 24.11.1994, the Architect of

appellant No.1 forwarded to the Superintendent of Gardens, a set

of drawings for the development of the land, after incorporating

the suggestions made by the Department pursuant to the visit

made by the Deputy Superintendent of Gardens;

(ix) Vide letter dated 03.12.1994 the Superintendent of

Gardens forwarded to the Assistant Engineer, the appellants’

proposal;

(x) By a letter of intent dated 05.04.1995, issued by the

Chief Engineer (Development Plan), appellant No.1 was informed

that their request for the grant of DRC will be considered after

the requirements mentioned therein were complied with. One of

the conditions indicated in the said letter dated 05.04.1995 was

that the appellant had to deposit a sum of Rs.3,50,000/ - as

security for the faithful compliance of the requirements

mentioned in the letter;

(xi) Appellant No.1, through their Architects, undertook

the development work. Site inspection was also carried out by the

officials of the Municipal Corporation. Eventually the Deputy

Chief Engineer (Planning and Design), issued a letter dated

27.05.1995 certifying the completion of the development work

undertaken by the appellant No.1. This letter was issued after

making a site inspection on 23.05.1995;

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(xii) By a subsequent letter dated 20.07.1995, the Chief

Engineer informed appellant No.1 that they have to complete

Storm Water Drains and that thereafter, the DRC will be issued.

Accordingly, the appellant No.1 undertook the construction of

Storm Water Drains;

(xiii) Thereafter, the Executive Engineer issued a

communication dated 20.10.1995 certifying that the drains have

been constructed satisfactorily;

(xiv) As a matter of fact, the Architects of appellant No.1

had a temporary site office and godown on the plot reserved for

“Recreation Ground”. This was, as per the letter dated 28.09.1995

of the Architects, for the purpose of developing the additional

amenity and for landscaping of Recreation Ground. Therefore, in

a couple of communications, the Architects of the appellant No.1

offered to remove the same, once the work was completed .

Appellant No.1 even deposited a sum of Rs.25,000/ - for the

retention of the temporary structure, to store materials required

for the development;

(xv) When appellant No.1 was developing the amenity, the

local people wanted access and, hence, the Deputy Chief

Engineer requested through his note dated 30.11.1995, orders of

the Chief Engineer on two things, namely, (i) access to the local

people; and (ii) permission to take over possession of the

developed land;

(xvi) Simultaneously, appellant No.1 handed over formal

possession of the land on 09.12.1995;

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(xvii) On 14.12.1995, the respondents granted NOC to

appellant No.1 in terms of the proposal dated 07.12.1995. A

further scrutiny report dated 28.12.1995 acknowledged that the

“Recreation Ground” was being developed in terms of the approval

granted on 14.12.1995;

(xviii) While things stood thus, the Municipal Corporation

issued a Circular dated 09.04.1996, restricting the grant of

additional TDR in respect of amenities such as “ Recreation

Ground”, only for the structures allowed to be constructed within

the reservations, to the extent of built-up area of such structures

subject to a maximum of 15% area of the reservations. This

Circular and another Circular dated 05.04.20 03 became the

subject matter of challenge, which resulted in this Court

delivering a Judgment reported in Godrej and Boyce

Manufacturing Company Limited vs. State of Maharashtra

and Others.

6;

(xix) During the pendency of the above proceedings,

appellant No.1 constituted appellant No.2 as their Power of

Attorney

7 in respect of the amenity TDR (Additional TDR) under a

Deed dated 24.12.1996;

(xx) Claiming to have completed the development of the

amenity, the appellants applied on 17.04.1998 for the grant of

Additional TDR (also known as “Amenity TDR”);

6

(2009) 5 SCC 24

7

For short “PoA”

7

(xxi) But by a reply dated 27.11.1998, the Corporation

declined to consider the request for additional TDR on the ground

of prevailing policy (namely, the Circular dated 09.04.1996);

(xxii) Since the Circular was under challenge before this

Court, appellant No.1 awaited the outcome of the challenge;

(xxiii) Therefore, after the circular was set aside by this

Court in the decision in Godrej and Boyce Manufacturing

Company Limited (supra), the appellant made one more request

for the grant of Additional TDR by a letter dated 03.11.2009. But

the same was turned down by the Municipal Corporation by an

order dated 17.08.2010;

(xxiv) Aggrieved by the said response, the appellants filed a

writ petition in WP No.2058 of 2010. This writ petition was

dismissed by the High Court of Judicature at Bombay by an

order dated 08.08.2011. It is against the said order that the

appellants have come up with the above appeal.

4. While rejecting the claim of the appellants, the High Court

recorded the following findings:

(i) that a claim for Additional TDR generally arises in terms

of clause 6 of Appendix VII of Regulation 34 of the Development

Control Regulations for Greater Mumbai, 1991

8

;

(ii) that the entire correspondence exchanged between the

appellants and the respondents from 14.07.1994 till the year

1998 does not disclose that the appellants intended to avail

additional TDR in terms of clause 6;

8

For short “the Regulations”

8

(iii) that if there was any such intention, the owner ought

to have approached the Commissioner or the A ppropriate

Authority in terms of clause 6 of Appendix VII;

(iv) that the Superintendent of Gardens was not the

appropriate authority in respect of the Garden Department;

(v) that what was claimed by appellant No.1 and their

Architects was only TDR as per clause 5 and not additional TDR

under clause 6 of Appendix VII of Regulation 34;

(vi) that the appellants accepted DRC dated 02.01.1996

without any protest;

(vii) that the appellants have failed to establish that they

carried out any development;

(viii) that the agreement executed between M/s Mayfair

Housing and the Corporation shows that the appellants merely

surrendered the land and claimed TDR in terms of clause 5 but

did not carry out any development in terms of clause 6;

(ix) that while surrendering the land and claiming TDR in

terms of clause 5, appellant No.1 submitted a proposal enclosing

Form No.2625;

(x) that at Serial No.17 of the said printed form, the

owners were called upon to inform whether the reservation is

proposed to be built as per the plans approved by the concerned

authority as per clause 6;

(xi) that the answer of appellant No.1 to the question at

serial No.17 was that the question does not arise as the

reservation was for “Recreation Ground”;

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(xii) that before claiming additional TDR in terms of clause

6, neither appellant No.1 nor appellant No.2 filled in the printed

Form;

(xiii) that under clause 6, the amenity has to be developed

as per the stipulations prescribed by the Commissioner or the

appropriate authority, but in this case, these authorities did not

prescribe any stipulations, since the appellants did not submit

any printed Form for additional TDR;

(xiv) that appellant No.2 is not the owner or lessee of the

land and hence when appellant No.2 made a request for the

development/maintenance of the land, the request was granted

on condition that appellant No.2 will not claim any TDR; and

(xv) that in any case the appellants should be deemed to

have abandoned their claim for additional TDR, in view of the fact

that they came up with the writ petition only in the year 2010

challenging the rejection of the request for additional TDR made

in the year 1998 and that, therefore, the writ petition deserves to

be dismissed.

5. Assailing the impugned order of the High Court, it is

contended by Shri P. Chidambaram, learned senior counsel:

(i) that TDR/Additional TDR, constitute compensation in

kind for the acquisition of the land and the development of the

amenity and hence the denial of the same will be an infringement

of the right to property guaranteed under Article 300A of the

Constitution;

10

(ii) that there is no dispute that the appellants developed

the “Recreation Ground,” in terms of the plan approved by the

Superintendent of Gardens;

(iii) that the High Court overlooked the approval granted by

the Municipal Commissioner which was available on record and

hence the finding that the appropriate authority did not grant

approval is factually incorrect;

(iv) that in terms of Regulation 6, the amenity is required to

be developed “on the surrendered plot” and the vesting in favour

of the Corporation takes place only after the development of the

amenity in terms of Section 126(1)(b);

(v) that the stand taken by the Corporation before the High

Court that the appellant did not develop the amenity, was an

afterthought;

(vi) that the request for Additional TDR made by the

appellants on 17.04.1998 was rejected by the Corporation by a

communication dated 27.11.1998, not on the ground that the

appellants did not develop the amenity, but on the sole ground

that the prevailing policy did not permit the grant of additional

TDR;

(vii) that the inference drawn by the High Court that there

was abandonment of right by the appellant, on account of the

delay in approaching the High Court, was totally perverse:

(viii) that the High Court failed to appreciate that the delay

was due to the necessity for the appellant to await the outcome of

their challenge to the “prevailing policy” and that, therefore, the

impugned order is liable to be set aside.

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6. Defending the action of the respondents and the impugned

order of the High Court, it is contended by Shri Atmaram N.S.

Nadkarni, learned senior counsel:-

(i) that after going through the entire correspondence

between the parties, the High Court has recorded findings of fact

on various aspects such as the appellants not undertaking the

development of any amenity, the appellants not making any

claim for Additional TDR and the lack of approval on the part of

the appropriate authority for the development of any amenity;

(ii) that these findings of fact do not warrant any

interference under Article 136 of the Constitution;

(iii) that the rejection of the request for additional TDR,

made on 27.11.1998 was challenged by the appellants only after

12 years and hence the High Court was justified in drawing an

inference about the abandonment of claim;

(iv) that after the surrender and transfer of the land in

favour of the Corporation and the grant of TDR, the appellants

ceased to be owners and hence they were not entitled to claim

additional TDR;

(v) that the claim for Additional TDR should be made

simultaneously with the claim for TDR, but the appellants failed

to do so;

(vi) that the appellants made a claim for Additional TDR only

in 1998 after surrendering and transferring the land in the year

1995;

12

(vii) that in any case, the development of amenities had to be

carried out as per the stipulations made by the competent

authority; and

(viii) that the activities of cutting, leveling, filling, terracing

and landscaping cannot be treated as the development of amenity

and that therefore the action of the respondents and the order of

the High Court were perfectly in order.

7. We have carefully considered the rival contentions.

8. From the rival contentions, it appears to us that the

following two questions arise for our consideration:

(I) Whether the High Court was right in concluding that

there was abandonment of claim by the appellants? ;

and

(II) Whether the finding of fact arrived at by the High

Court that the appellants did not and could not have

developed the amenity, calls for any interference,

especially in the light of the statutory provisions and

the facts that unfold from the correspondence

exchanged between the parties?

Question No.I: Whether the High Court was right in

concluding that there was abandonment of claim by the

appellants?

9. It is true that the claim made by the appellants for the grant

of additional TDR vide their application dated 17.04.1998 was

rejected by the Corporation, by a communication dated

13

27.11.1998 and that the same was challenged by the appellants

by way of a writ petition filed after 12 years in September-2010.

The High Court held that this delay of 12 years in challenging the

action of the respondents tantamount to abandonment of claim.

10. Let us now see whether the inference of abandonment is

factually made out and legally sustainable.

11. The order of rejection dated 27.11.1998 is a cryptic order

which reads as follows:

“This is to inform you that, the proposal submitted by

you for grant of additional T.D.R in lieu of development of

Recreation Ground on the land bearing CTS No.2/B(pt),

3(B) of Village Ghatkopar cannot be considered, as per

the prevailing policy in this respect.”

12. Obviously the expression “prevailing policy,” mentioned in

the aforesaid communication, was the Circular dated

09.04.1996. The said circular dated 09.04.1996 dealt with

several issues, one of which related to Additional TDR for open

space amenities. The relevant portion of the Circular dated

09.04.1996 reads as follows:

“2. OPEN SPACE AMENITIES LIKE GARDEN,

PLAYGROUND R.G., PARKING, OPEN SPACES &

BURIAL GROUND

i) The application for additional Development Right in

respect of the above mentioned amenities will be

considered only for the structures allowed to be

constructed within the reservations as per the provisions

of D.C.R. No. 23(g) to the extent of built-up area of such

14

structures, subject to maximum of 15 % area of the

reservations.

ii) No additional Development Right will be granted for

execution of the items such as leveling, construction of

compound wall, retaining wall, providing compound gate

providing layer of red-earth, landscaping & drainage

arrangements etc.

iii) Procedure & terms and conditions for considering

grant of additional Development Rights for such

structures will be the same as per Item No.1 above.”

13. In fact, the above circular dated 09.04.1996, gave rise to a

dispute between appellant No.1 herein and a few others on the

one hand and the Corporation on the other hand. That dispute

which related to some other property, ultimately landed up before

this court in the form of a couple of civil appeals and a writ

petition. The dispute got resolved through the decision of this

court in Godrej and Boyce Manufacturing Company Limited

(supra). The said decision was rendered on 06.02.2009.

14. Therefore, taking advantage of the said decision, appellant

No.2 applied once again for the grant of Additional TDR, on

03.11.2009. The same was rejected once again by a

communication dated 17.08.2010. This rejection triggered the

present proceedings in the year 2010. It is in the light of this

chain of events that we have to see whether there was any delay

on the part of the appellants and whether such delay could lead

to an inference of abandonment of claim.

15

15. The law of abandonment is based upon the maxim invito

beneficium non datur. It means that the law confers upon a

man no rights or benefits which he does not desire . In P.

Dasa Muni Reddy vs. P. Appa Rao

9, this Court held that

“abandonment of right is much more than mere waiver,

acquiescence or laches…. Waiver is an intentional relinquishment

of a known right or advantage, benefit, claim or privilege….”. In

paragraph 13 of the said decision, this Court put the law pithily

in the following words:

“13…. There can be no waiver of a non-existent right.

Similarly, one cannot waive that which is not one’s as

a right at the time of waiver. ...”

16. Irrespective of whether the respondents concede or not, the

Circular dated 09.04.1996 curtailed the rights of the owners to

have additional TDR in certain circumstances. The Circular came

under challenge before this Court and the decision of this Court

in Godrej and Boyce Manufacturing Company Limited was

delivered on 06.02.2009. As we have stated earlier, the decision

in Godrej and Boyce Manufacturing Company Limited was in

the case of the very appellant No.1 herein though in respect of

some other property.

9 (1974) 2 SCC 725

16

17. To put it differently, what was cited by the Municipal

Corporation in their order of rejection dated 27.11.1998 as an

impediment for the grant of additional TDR was the subject

matter of challenge in the first round. It was made by the very

appellant No.1 herein, though in respect of another property. If

the said decision in the first round had gone against appellant

No.1 herein, the rejection of the claim of the appellants for

additional TDR on the basis of “prevailing policy” would have

become final and unquestionable.

18. In other words, during the period from 1996 to 2009, the

right to claim additional TDR was in suspended animation.

Therefore, the appellants had to necessarily wait till the cloud

over their right got cleared. To say that the wait of the appellants

during the period of this cloudy weather, tantamount to

abandonment, is clearly unjustified and unacceptable. Therefore,

the finding recorded by the High Court on question No.1 is not in

tune with the law or the facts of the present case and hence

question No.1 has to be answered in favour of the appellants

herein.

17

Question No.II: Whether the finding of fact arrived at by the

High Court that the appellants did not and could not have

developed the amenity, calls for any interference, especially

in the light of the statutory provisions and the facts that

unfold from the correspondence exchanged between the

parties?

19. The answer to question No.2 revolves both around factual

aspects and around certain statutory provisions. Let us first take

note of the statutory provisions, out of which the right to claim

additional TDR arose.

20. Section 126(1) of the Act reads as follows:

“126. Acquisition of land required for public

purposes specified in plans

(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 Appropriat e

Authority may, except as otherwise provided in section

113A acquire the land,—

(a) by agreement by paying an amount agreed to,

or

(b) in lieu of any such amount, by granting the

land-owner or the lessee, subject, however, to the

lessee paying the lessor or depositing with the

Planning Authority, Development Authority or

Appropriate Authority, as the case may be, for

payment to the lessor, an amount equivalent to

the value of the lessor’s interest to be determined

by any of the said Authorities concerned on the

basis of the principles laid down in the Right to

Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act,

2013, Floor Space Index (FSI) or Transferable

Development Rights (TDR) against the area of land

surrendered free of cost and free from all

encumbrances, and also further additional Floor

Space Index or Transferable Development Rights

18

against the development or construction of the

amenity on the surrendered land at his cost, as

the Final Development Control Re gulations

prepared in this behalf provide, or

(c) by making in application to the State

Government for acquiring such land under the

provisions of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013,

and the land (together with the amenity, if any, so

developed or constructed) so acquired by agreement or by

grant of Floor Space Index or additional Floor Space

Index or Transferable Development Rights under this

section or under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, as the case

may be, shall vest absolutely free from all encumbrances

in the Planning Authority, Development Authority, or as

the case may be, any Appropriate Authority.”

21. As we have noted earlier, clauses (a), (b) and (c) were

inserted by way of substitution in sub-section (1) of Section 126

under Maharashtra Act 10 of 1994 with effect from 25.03.1991.

22. As per Section 126(1), whenever the Planning Authority or

Development Authority finds after the publication of a draft

Regional Plan or a Development Plan that any land is required or

reserved for any of the public purposes mentioned in the plan,

such authority may acquire the land for the said public purpose.

This acquisition can be made by three different methods,

indicated in clauses (a), (b) and (c). The methods of acquisition

19

prescribed in clauses (a), (b) and (c) of sub-section (1) of Section

126, in simple terms are as follows:-

(i) The acquisition may be through an agreement entered

into with the owner, by paying an amount agreed to;

(ii) Alternatively, the acquisition may be by the grant of FSI

or TDR in lieu of any payment, along with Additional FSI or

Additional TDR against the development or construction of the

amenity on the surrendered land at the cost of the owner; or

(iii) The acquisition may also be by requesting the State

Government to initiate the process of land acquisition under the

Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013.

23. We are concerned in this case with the second method of

acquisition of land indicated in clause (b) of sub-section (1) of

Section 126. Under this clause, the owner and the planning

authority are granted the leverage to agree that the compensation

for the acquisition of the land will be for a consideration, not paid

in the form of cash but granted in kind, in the form of two things,

namely, (i) FSI or TDR for the area of land surrendered; and (ii)

additional FSI or additional TDR against the development or

construction of the amenity on the surrendered land.

24. Once the parties are ad idem on the fact that the case is

covered by clause (b), then what is necessary to be seen by

20

Courts is: (i) whether the parties had agreed to give/take FSI or

TDR in lieu of the amount of compensation ?; and (ii) whether

there was a valid claim for the grant of additional FSI or

additional TDR towards the development or construction of the

amenity on the surrendered land at the cost of the owner?.

25. There is no dispute on facts in this case that the appellants

surrendered their land and accept ed TDR in lieu of

compensation. The only question on which the parties have a

dispute, is as to whether the last limb of clause (b) stands

satisfied or not.

26. For a better appreciation, it is necessary to extract the last

limb of clause (b) as follows: “ … and also further additional Floor

Space Index or Transferable Development Rights against the

development or construction of the amenity on the surrendered land

at his cost, as the Final Development Control Regulations prepared in

this behalf provide,”

27. The last limb of clause (b) extracted above shows that the

owner of the land is under an obligation to develop or construct

the amenity on the surrendered land at his cost and the Planning

Authority has to reciprocate the same by granting Additional FSI

or Additional TDR.

21

28. On the question as to whether the appellants have fulfilled

their obligations under the last limb of clause (b), there are

controversies both on facts and in law. On facts it is contended

by the respondents that the appellants did n ot develop or

construct the amenity and in law it is contended that what is

stated to be developed is not as per the Final Development

Control Regulations.

29. To resolve this conflict, it is necessary to take note of the

definition of the word “amenity”, which is defined in Section 2(2)

of the Act as follows:

“2. Definitions

In this Act, unless the context otherwise requires,—

xxx xxx xxx

(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;”

30. The word “amenity” has been defined in Section 2(2) of

the Act to mean several things including “Recreational

Grounds”. We are concerned in this case with a “Recreational

Ground”. The claim of the appellants is that they have

developed a Recreational Ground. Interestingly, it is not the

22

case of the respondents that the appellants were required to

develop something else and not a Recreational Ground. On

the contrary, it is the case of the respondents that the

appellants did not develop the Recreational Ground.

Therefore, all that we are obliged to see is whether a

Recreational Ground was developed or not.

31. The word “development” is also defined in the Act in

Section 2(7) as follows:

“2. Definitions

In this Act, unless the context otherwise requires,—

xxx xxx xxx

(7) “development” with its grammatical variations

means the carrying out of buildings, engineering,

mining or other operations in or over or under, land

or the making of any material change, in any

building or land or in the use of any building or

land or any material or structural change in any

heritage building or its precinct and includes

demolition of any existing building, structure or

erection or part of such building, structure of

erection; and reclamation, redevelopment and lay-

out and sub-division of any land; and “to develop”

shall be construed accordingly;”

32. The above definition shows that the word “development” is

given a very wide meaning. In fact, the last limb of clause (b) of

sub-section (1) of Section 126 uses both the expressions, namely

(i) development; and (ii) construction. Therefore, the word

23

“development” has to be understood to mean any activity which

may or may not include construction.

33. Having seen the relevant provisions of the Statute, let us

now have a look at the Regulations. This has become necessary

in view of the fact that the last limb of clause (b) extracted above

refers to “the Final Development Control Regulations prepared in

this behalf”. Therefore, the question whether the appellants

developed or constructed any amenity, should be tested with

reference to the Final Development Control Regulations.

34. The Regulations define the word “amenity” under Regulation

2(7) as follows:

“2. Definitions of Terms and Expressions:-

xxx xxx xxx

(7) “Amenity” means roads, streets, open spaces,

parks, recreational grounds, play grounds, gardens,

water supply, electric supply, street lighting,

sewerage, drainage, public works and other utilities,

services and conveniences.”

Even this definition includes Recreational Ground.

35. Regulation 34 of the Regulations deals with Transfer of

Development Rights. Regulation 34 reads as follows:

“34. Transfer of Development Rights:-

In certain circumstances, the development

potential of a plot of land may be separated from

the land itself and may be made available to the

owner of the land in the form of Transferable

24

Development Rights (TDR). These Rights may be

made available and be subject to the Regulations in

Appendix VII hereto.”

36. Appendix VII referred to in Regulation 34 later got

renumbered as Appendix VII -A vide order dated 15.10.1997.

Clauses 5, 6 and 7 of the Regulations formed the eye of the storm

before the High Court. Therefore, they are extracted as follows:

“APPENDIX VII-A

(Regulation 34)

Regulations for the grant of Transferable

Development Rights (TDRs) to owners/developers

and conditions for grant of such Rights

xxx xxx xxx

5. The built-up area for the purpose of FSI credit in

the form of a DRC shall be equal to the gross area

of the reserved plot to be surrendered and will

proportionately increase or decrease according to

the permissible FSI of the zone where from the TDR

has originated.

Provided that in specific cases considering the

merits, where Development Plan Ro ads/

reservations are proposed in No Development Zone,

the Commissioner with prior approval of the

Government shall grant FSI for such road

land/reserved land equivalent to that of the

adjoining zone.

6. When an owner or lessee also develops or

constructs the amenity on the surrendered plot at

his cost subject to such stipulations as may be

prescribed by the Commissioner or the appropriate

authority, as the case may be and to their

satisfaction and hands over the said developed/

constructed amenity to the C ommissioner/

appropriate authority, free of cost, he may be

granted by the Commissioner a further DR in the

form of FSI equivalent to the area of the

construction/development done by him, utilisation

25

of which etc. will be subject to the Regulations

contained in this Appendix.

7. A DRC will be issued only on the satisfactory

compliance with the conditions prescribed in this

Appendix.”

37. The High Court, after scanning the correspondence came to

the conclusion that clause 5 of Appendix VII alone is applicable

to the case on hand, since the appellants made a claim only for

TDR equivalent to the gross area of the reserved plot surrendered

to the Corporation and that clause 6 was not applicable as the

owner did not develop or construct the amenity on the

surrendered land at his cost. Therefore, it is necessary to go back

to certain factual details to find out (i) whether appellant No.1 did

develop the amenity; and (ii) whether they made a claim traceable

only to clause 5 and not to clause 6 of Appendix VII to the

Regulations read with Regulation 34.

38. The answer to the first question whether appellant No.1 did

develop the amenity or not, lies in the correspondence. As we

have pointed out earlier, the word “amenity” means several things

including “recreation ground.” The word “development” includes

under Section 2(7), mining or other operations in or over the land

or the making of any material change in any building or land and

reclamation, redevelopment and layout and sub-division of any

26

land. Keeping these definitions in mind, if we go back to the

correspondence, the picture that unfolds is as follows :-

(i) By the letter dated 08.10.1994, the Architects of

appellant No.1 informed the Director (ES&P) of the Bombay

Municipal Corporation that they “intended to develop the

surrendered land before handing over, by suitably cutting,

levelling, filling and terracing etc., in order to have a Recreation

Ground with utility and beauty”;

(ii) A plan was also attached to the said letter dat ed

08.10.1994 showing the proposed overall development;

(iii) Pursuant to the said letter, the Superintendent and

Deputy Superintendent of Gardens visited the site, as could be

seen from the letter dated 24.11.1994 addressed by the Architect

to the Superintendent of Gardens. To this letter, a set of drawings

prepared after incorporating the suggestions of the Department

was also enclosed;

(iv) By a departmental note dated 03.12.1994, the

Superintendent of Gardens seems to have addressed the

Executive Engineer (DP)(ES) indicating that the plan submitted

by the Architect was slightly modified after visiting the site. The

Executive Engineer was also requested to inform further

development in future so that the progress could be monitored;

(v) The said departmental note dated 03.12.1994 contains

an endorsement at the bottom to the effect “please inform that

developer can develop the RG by availing ATDR.” Obviously, the

27

acronym RG stands for Recreation Ground and the acronym

ATDR stands for Additional Transferable Development Rights;

(vi) By a letter dated 05.04.1995 addressed by the Chief

Engineer (DP) to appellant No.1, they were instructed to carry out

certain things, as per the plan submitted by their Architect. Two

important things could be noticed from this letter. The first is

that Point No.7 mentioned in the said letter speaks about the

joint measurement of the “Recreation Ground”. The second is that

the letter was described as an intent letter valid for a period of

one year, but eligible to be revalidated for further periods;

(vii) By a letter dated 27.05.1995, the Deputy Chief

Engineer (Planning and Design) informed the Architects that the

work undertaken by them was found completed as per the

amended plan approved by the Department and as per the re -

location approved by the Director (ES & P). This letter was issued

after an inspection of the site on 23.05.1995.

(viii) By a letter dated 28.09.1995, the Architect of appellant

No.1 informed the Assistant Engineer (DP) that the Architects had

a temporary site office and go-down constructed on the plot

reserved for Recreation Ground and that they were being used for

constructing additional amenity and landscaping of Recreation

Ground. By the said letter, the Architect undertook to remove

these structures after completion of “the development of RG”.

(ix) By a departmental note dated 30.11.1995, the Deputy

Chief Engineer sought the approval of Municipal Commissioner

on certain issues. One of the issues on which the orders of the

Municipal Commissioner were sought, was the development of RG

28

by planting trees, providing fountain etc. and the removal of the

structures erected by the Architects for the purpose of carrying

out the development, within two years. The said note was

approved by the Municipal Commissioner on 04.12.1995.

(x) It is only after the above events that the handing over

and taking over possession of the surrendered land took place on

09.12.1995.

(xi) After the handing over and taking over possession of

the land, the Superintendent of Gardens sent a communication

date 14.12.1995 to the Architect of appellant No.1 that they have

no objection to the landscaping being undertaken.

(xii) In a Departmental note put up on 28.12.1995, it was

mentioned clearly that the Recreation Ground was developed by

appellant No.1 as per the approval of Superintendent of Gardens.

(xiii) On 02.01.1996, a DRC (Development Rights Certificate)

was issued to appellant No.1, with respect to the surrendered

land.

(xiv) It is only thereafter that appellant No.2 who is a

partner of Mayfair Housing jumped into the fray and sought

permission to maintain the Recreation Ground, through a letter

dated 20.11.1996. On the said letter dated 20.11.1996, there is

an endorsement of the Joint Municipal Commissioner made o n

26.11.1996 that the plot had come to BMC under TDR and that,

“he had spent Rs.1.25 crores on this RG and developed it”.

(xv) On the said letter dated 20.11.1996 of Mayfair

Housing, a note order was passed by the Deputy Municipal

Commissioner stating that there was no clarity about the nature

29

of the activities to be carried out by Mayfair and that the same

needed to be part of an agreement.

(xvi) Thereafter appellant No.1 executed two deeds of power

of attorney, both dated 24.12.1996 in favour of appellant No.2

and his wife. By one power of attorney, appellant No.1 authorised

their duly constituted attorneys to deal with the TDR already

granted to them under the Development Rights Certificate issued

on 02.01.1996. By the other deed of power of attorney, appellant

No.1 authorized their duly constituted attorneys to seek the grant

of “Amenity TDR” also known as Additional TDR. Interestingly,

this deed authorized appellant No.2 and his wife to apply

for getting permission from the authorized department for

the construction of Recreation Ground in accordance with

the plans/specifications.

(xvii) It is important to note that both the deeds of power of

attorney were executed by appellant No.1 on 24.12.1996,

after appellant No.2 representing Mayfair Housing made a

representation on 20.11.1996 seeking permission for the

development of Recreation Ground .

(xviii) Therefore, when a note was put up by the

Deputy Chief Engineer on 30.01.1997 on the proposal made by

the Deputy Municipal Commissioner, it was indicated therein

that the permission for the development of RG plot has been

granted although additional TDR for the same was not

admissible.

(xix) Thereafter, a communication was issued to Mayfair

Housing, with reference to the letter of appellant No.2 dated

30

20.11.1996, informing them that the development and

maintenance of the Recreation Ground on payment of

nominal fee has been sanctioned , subject to certain

conditions, one of which was that no TDR will be given.

(xx) All the above correspondence culminated in the letter

of request dated 17.04.1998 issued by appellant No.2 on behalf

of appellant No.1 for the grant of additional TDR.

39. The entire correspondence that began with a letter dated

14.07.1994 sent by Worthy Enterprises, the Architects of

appellant No.1 to the Chief Engineer (DP) of the Municipal

Corporation and culminating in the letter of appellant No.2 dated

17.04.1998 seeking the grant of additional TDR, can be split into

two time zones. The first of these time zones commenced with the

letter dated 14.07.1994 and ended with the handing over of

possession of the land by appellant No.1 on 09.12.1995 to the

Corporation and the Corporation issuing a DRC on 02.01.1996

granting TDR for the surrendered land. The second time zone

commenced on 20.11.1996 with Mayfair Housing seeking

permission of the Corporation to develop and maintain the

Recreation Ground and ended up with the request for additional

TDR dated 17.04.1998 being rejected by order dated 27.11.1998.

31

40. Once the entire correspondence between the appellants and

the respondents, is split into two time zones, an interesting

picture emerges therefrom. This can be summarised as follows:-

(i) What was applied for in Form No.2625 enclosed to the

letter of the Architects dated 14.11.1994, was only a DRC for the

surrender of the land. There was no indication in the said letter

dated 14.07.1994 that appellant No.1 was interested in

developing an amenity for the purpose of claiming Additional

TDR. This is why, the answer of appellant No.1 to the question at

Serial No. 17 of the printed Form for the grant of DRC assumes

significance. The question at Serial No.17 and the answer thereto

are extracted as follows:-

(17) Whether the reservation

is proposed to be built upon

as per the plans approved by

the concerned Authority as

per sub regulation No.6 of

Appendix-VII, if so, details

thereof.

: Does not arise as the

reservation is for R.G.

(ii) The above answer to question No.17, in Form No.2625

submitted by appellant No.1 themselves along with their letter

dated 14.07.1994, stands in stark contrast, to the answer to the

very same question in the Form submitted by appellant No.2

along with the letter dated 17.04.1998. Question No. 17 and the

answer thereto in the Form submitted by appellant No.2 along

with the letter dated 17.04.1998 read as follows:

(17) Whether the reservation

is proposed to be built upon

as per the plans approved by

the concerned Authority as

: Recreation Ground

already developed as

per Municipal

specifications and

32

per sub regulation No.6 of

Appendix-VII, if so, details

thereof.

various requirements

(iii) Therefore, it is clear that it is only after appellant No.2, a

builder, entered into the scene that the claim for additional TDR

cropped up. As we have stated earlier, appellant No.2 entered the

scene only in November 1996, first sought permission to develop

and then got a Power of Attorney executed in his favour on

24.12.1996. Till the entry of appellant No.2, it was only ‘Worthy

Architects’ who were representing the appellant No.1. This can be

seen from other documents also.

(iv) For instance, in the letter dated 08.10.1994, Worthy

Enterprises sought permission to develop the Recreation Ground

reservation by suitably cutting, levelling, filling and terracing etc.

But there is no whisper in the said letter about additional TDR;

(v) However, an endorsement is made in the internal

department note dated 03.12.1994 asking the officer concerned

to “inform the developer that he can develop the RG by availing

ATDR.” But it must be remembered at this stage that the claim of

appellant No.1 for TDR by surrendering t he land itself was

pending consideration and the offer for levelling, cutting etc.,

seem to have been made for the purpose of convincing the

Corporation to accept the surrender of land and to grant TDR.

The subsequent correspondence show that the work of cutting,

filling, levelling and terracing was completed, only to enable the

Corporation to accept the surrender of land and grant TDR. This

will be clear from the letter dated 20.07.1995 issued by the Chief

Engineer laying down certain conditions including the

33

construction of Storm Water Drains, for the purpose of grant of

DRC even for the surrender of land;

(vi) It is only in the letter dated 28.09.1995 sent by Worthy

Enterprises that a mention about “additional amenity” is made

for the first time. Till this letter, there was no mention about any

“additional amenity” and all the activities of development agreed

to be undertaken or actually undertaken were for the purpose of

convincing the Corporation to accept the land and grant TDR;

(vii) Even internal note dated 30.11.1995 speaks about

conditions for the grant of DRC towards TDR and not about

additional TDR;

(viii) A perusal of the possession receipt dated 09.12.1995

contains a description of the subject matter as follows:-

“Grant of DRC in lieu of land….”

This possession receipt notes that a compound wall with a gate

has been provided and that the D.P. Road with provisions of

Storm Water Drain has been constructed and that the possession

of the land is taken subject to the owner agreeing to rectify the

defects in the works. Therefore, it is clear that whatever works

were undertaken by appellant No.1 and their Architects, were

part of the conditions fulfilled to make the Corporation accept the

surrender of land and issue a DRC towards TDR.

(ix) If cutting, filling, levelling, terracing etc., formed part of

the development of the amenity for gaining additional TDR, there

was no necessity for appellant No.1 to have got into a tie-up with

appellant No.2, the partner of Mayfair Housing and that too after

the handing over of possession. In fact, as noted earlier, appellant

No.2 and Mayfair Housing jumped into the fray only after

34

appellant No.1 completed the work of filling, levelling,

construction of Storm Water Drains etc., through their Architects

and handed over possession on 09.12.1995 and received DRC for

the surrender of the land on 02.01.1996;

(x) It is interesting to note that the two deeds of Power of

Attorney executed by appellant No.1 in favour of appellant No.2

are dated 24.12.1996. But even before the said date, Mayfair

Housing writes a letter dated 20.11.1996 seeking permission to

develop and maintain a garden in the land. At the cost of

repetition, it should be stated that if cutting, filling, levelling etc.,

constituted the development of amenity for the purpose of earning

Additional TDR, they have all been done even before Mayfair

Housing came into the picture. If the development of amenity had

already taken place, there was nothing for Mayfair Housing to do

and yet they seek by a letter dated 20.11.1996 permission to

develop and maintain a garden;

(xi) A list of works to be carried out for the purpose of

maintenance of the garden annexed to the note of the Deputy

Municipal Commissioner shows that they were primarily for the

maintenance of the existing facilities;

(xii) Another conundrum evidenced by the documents is

that the second deed of Power of Attorney dated 24.12.1996

authorises the power agent to apply for getting permission from

the authorised department of the Corporation for the construction

of Recreation Ground. Some of the clauses contained in the

second deed of Power of Attorney empowering appellant No.2 to

seek additional TDR read as follows:-

“2. To apply for getting the permission from the

authorized department of the Corporation for the

35

construction of the Recreation Ground in

accordance to the plans/specifications as

approved by the Municipal Corporation of Greater

Bombay.

4. To carry out, from time to time, construction

of the Recreation Ground or such other

construction/development as may be required by

the Municipal Corporation of Greater Bombay in

phase/phases, in terms of the plans approved by

the Municipal Corporation of Greater Bombay.

11. To appoint, from time to time, architects,

engineers, surveyors, contractors, R.C.C.

Consultants and other professionals, designers

and other persons for preparing the plans for

construction of the Recreation Ground and sign

and submit any and all such plans, designs and

specifications with or without applications as the

occasion may require to the Competent Authorities,

Municipal Corporation of Greater Bombay and all

other appropriate authorities like the Maharashtra

State Electricity Board and Aviation Authorities,

etc., for approval.

17. To apply for and obtain from time to time , the

amenity Transferable Development Rights/

Development Right Certificate of the Recreation

Ground so constructed, and to submit the

Development Right Certificate so issued for the

amenity TDRs/DRC to the Municipal Corporation of

Greater Bombay, for transferring and/or endorsement

of the same in the name of our Attorneys and /or in

the name of such nominee/nominees and/or such

person/persons as our Attorneys may decide for an

area amounting to 2,710 square metres equivalent to

29,170.175 sq.ft.”

41. To be precise, all activities undertaken by appellant No.1

through their Architects till the handing over of possession of the

land were not towards the development of amenity and for the

grant of Additional TDR. All those works were undertaken as part

36

of the effort to make the Corporation accept the surrender of land

and to grant TDR.

42. It is only after the entry of Mayfair Housing into the picture,

first with a letter of request dated 20.11.1996 to the Corporation

to develop and maintain the Recreation Ground and then with the

execution of the Power of Attorney by appellant No.1 on

24.12.1996 that the idea of developing an amenity and seeking

additional TDR had cropped up. But unfortunately, the

Corporation made it clear to Mayfair Housing represented by

appellant No.2 herein that he will not be entitled to Additional

TDR, for the development of Recreation Ground . In the letter

dated 23.01.1998 it was made clear to Mayfair Housing that no

TDR will be given to them.

43. It is relevant to point out here that when Mayfair Housing

sent a letter dated 20.11.1996 to the Corporation seeking

permission to develop and maintain the RG, they had nothing to

do with the surrendered land. Therefore, they were not entitled

either to TDR or to additional TDR. Realising this difficulty, they

appear to have got 2 deeds of PoA from appellant No.1 so as to

37

piggy ride on appellant No.1. In fact, the first PoA was redundant

since by the time it was executed, appellant No.1 had already

obtained DRC for TDR. Yet, the first PoA was towards TDR and

the second PoA was for additional TDR.

44. Therefore, even an independent analysis of the

correspondence between the parties show that no amenity was

developed as required by law, by appellant No.1, to be entitled to

Additional TDR. In fact, we could have simply affixed our seal of

approval to the finding of fact recorded by the High Court of

Bombay in this regard, as the said finding does not appear to be

perverse. But instead of taking such a short-cut route, we have

gone into greater detail so that the valuable rights guaranteed to

appellant No.1 under Article 300A is not defeated.

45. Drawing our attention to the photographs of the Recreation

Ground as it exists, it was argued by the learned senior counsel

for the appellants that what was once a barren land, could not

have become what it is but for the activities undertaken by the

appellants. Therefore, his argument was that if this is not

38

construed as development of amenity , nothing else can be

construed so.

46. But unfortunately for the appellants, whatever they had

done through their Architects up to the date of handing over

possession and getting the DRC, was not projected by them as

the development of amenity. If all those activities up to the date of

handing over possession constituted development of amenity,

there was no necessity for appellant No.1 to give PoA to appellant

No.2 to undertake the activity of development of amenity and to

seek Additional TDR. If the work of development of amenity and

the lodging of a claim for additional TDR had been undertaken

only after Mayfair Housing entered into the picture, then the

appellants became bound by the condition laid down by the

Corporation that appellant No.2 will not be entitled to Additional

TDR.

47. Therefore, we are of the view that the High Court was right

in recording a finding of fact that the appellants did not develop

the amenity so as to be entitled to additional TDR. Once the

finding of fact made by the High Court in this regard is upheld,

39

the appeal should automatically meet with the fate that it

deserves. Accordingly, the appeal is dismissed. There will be no

order as to costs.

Pending application(s) if any, shall stand disposed of.

……………………………….. J.

(V. RAMASUBRAMANIAN)

……………………………….. J.

(PANKAJ MITHAL)

New Delhi;

May 08, 2023