Supreme Court: In a batch of civil appeals against judgments of the Bombay High Court wherein a batch of writ petitions of landowners for additional compensation for surrendering their land and developing amenities were dismissed on grounds of delay and laches, the Division Bench of BV Nagarathna* and N. Kotiswar Singh allowing the appellants’ appeals set aside the portions of the impugned decisions, holding that the High Court was not right in dismissing the writ petitions on the ground of delay and laches. The Court also dismissed the three appeals filed by the Mumbai Municipal Corporation (‘respondent’).
The Court also directed the respondent- Mumbai Municipal Corporation to consider the case of the appellants herein in light of the judgment of this Court in Godrej & Boyce Mfg. Co. Ltd. v. State of Maharashtra, (2009) 5 SCC 24 (“Godrej & Boyce I”) and release the balance FSI/TDR to them.
Background
The writ petitioners before the High Court/ present appellants were holding land shown as ‘reserved’ in the sanctioned development plan under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (‘MRTP Act’) which were reserved for Development Plan Road (‘DP Road’). The appellants constructed DP Roads at their own cost and voluntarily surrendered the reserved lands to the Mumbai Municipal Corporation. In lieu thereof, in terms of Section 126(1)(b) of the MRTP Act read with Regulations 33 and 34 as well as Para 5 of Appendix-VII of DCR, the appellants were granted Floor Space Index (“FSI”) and/or Transferrable Development Rights (“TDR”) in the form of Development Rights Certificates (“DRC”) equal to the gross area of the plots/land surrendered by them. Para 6 of Appendix-VII (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. For implementation of the DCR, two Circulars were issued on 09-04-1996 and 05-04-2003, which provided that 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 and, the figure was enhanced to 25%, respectively.
The issue before the High Court in the writ petitions was around consideration of the implementation of the decision of this Court in Godrej & Boyce I.
In Godrej & Boyce I, it was 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 the construction of an amenity would not be confined to 15% or 25% of the DP Road area and it would be equivalent to 100% of the area of the road constructed by the owner or the lessee. The writ petitioners’/ present appellants grievance 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, Appendix VII was virtually obliterated from the DCR. The notification dated 16-11-2016 was assailed and the question arose as to whether the modifications made by the notification amending Regulation 34 of the DCR would have retrospective or retroactive operation. Most of the petitions before the High Court were rejected on the grounds of delay and laches and hence, the petitioners therein filed an appeal.
Analysis and Decision
The Court noted that in Godrej & Boyce I, landowners claimed that for constructing the roads they were entitled to FSI or TDRs for the whole of the surface area of the roads. The Court noted that the appellants/landowners’ submission therein was accepted, which envisaged the grant of the FSI or TDR under two separate heads: one, for the land, and the other, for the construction of the amenity for which the land was designated in the development plan at the cost of the owner. It was also held that Section 2(9-A) defined “development right” to include TDR and Section 126(1)(b) provided for (i) grant of FSI or TDR against the area of land surrendered free of cost, and (ii) further, additional FSI or TDR against the development or construction of the amenity on the surrendered land at the owner’s cost as the final Development Control Regulations should provide. It was held therein, that there cannot be a differentiation in the grant of additional TDR on a variable and sliding scale on the surrendered land for amenities constructed based on the Circular issued by the Municipal Commissioner. Also, the Circular cannot override the provisions of the Regulations.
Further, referring to Godrej & Boyce Manufacturing Co. Ltd. v. Municipal Corpn. of Greater Mumbai, 2023 SCC OnLine SC 592 (‘Godrej & Boyce II’), the Court noted that it was held that during the period from 1996 to 2009, the right to claim additional TDR was in suspended animation. Therefore, the appellants had to wait until the cloud over their rights was cleared. This Court held that all the activities undertaken by appellant No.1 therein through the Architects till handing over of the possession of the land were not towards the development of amenities and the grant of additional TDR, they were undertaken as part of the effort to make the Municipal Corporation accept the surrender of land and to grant TDR. Hence, no amenity was developed as required by law to be entitled to additional TDR.
Whether the High Court was right in declining to grant relief to the writ petitioners (appellants herein) on the grounds of delay and laches?
On the question of discretion of Courts in considering the issue of delay and laches, the Court referred to and relied on catena of judgments, wherein, it has been held that condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case; the said discretion is dependent on facts and circumstances of the cases. Delay and laches are one of the facets to deny the exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc.
The Court noted that in the impugned decisions, the writ petitioners/appellants herein had surrendered the reserved land and had also been granted 25% TDR and a representation for additional TDR was made after the judgment of this Court in Godrej & Boyce I and in some cases, the representation was made early but in other cases, the representations were made after some time. The Court stated that- “when relief in the nature of compensation is sought, as in the instant case, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made. In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution.” The Court while accepting the appellants’ contention, said that the respondent-Mumbai Municipal Corporation had not established that it was prejudiced by a short delay even if it occurred in any of these cases, or that the third-party rights were created which could not be disturbed owing to delay or laches. The Court reiterated that neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply in these cases. Rather, the Court said that the delay occurred on the part of the Mumbai Municipal Corporation in complying with the Regulations insofar as these appellants were concerned.
CASE DETAILS
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Citation: Appellants : Respondents : |
Advocates who appeared in this case For Petitioner(s): For Respondent(s): |
CORAM :
N. Kotiswar Singh, J.
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