Supreme Court Upholds High Court Ruling: Not entitled to additional TDR as Godrej & Boyce Did Not Develop ‘Amenity’

Supreme Court Upholds High Court Ruling: Not entitled to additional TDR as Godrej & Boyce Did Not Develop ‘Amenity’

The Supreme Court by its coram comprising of Justices V. Ramasubramanian and Pankaj Mithal while refusing to interfere with the order and judgment passed by the Bombay High Court, ruled that all activities undertaken by Godrej & Boyce Manufacturing Company Ltd. 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 Transferable Development Rights (TDR) for the construction and development of a ‘recreation ground’ in the Greater Mumbai region. All works were undertaken as part of the effort to make the Municipal Corporation accept the surrender of land and to grant TDR.

The background of the case was that the appellant- Godrej and Boyce Manufacturing Company Limited was the owner of the plot in second Development Plan (‘DP’) for Greater Mumbai which was sanctioned between 1991 and 1994. Section 126 (1) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the ‘Act of 1966’) had the power 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 (DRP) or a DP or Town Planning Scheme (TPS).

The appellant submitted an application dated 14 July, 1994 for surrendering land which was reserved under the DP for the purpose of ‘recreation ground’ and an application for the grant of DRC was also enclosed. TDR was granted in lieu of compensation for acquisition of land and the architects of the appellant expressed their intention to develop the land sought to be surrendered.

The Chief Engineer (Development Plan) informed the appellant that their request for the grant of DRC would be considered after the requirements mentioned in the letter of intent dated 5 April, 1995 were complied with along with the security deposit of Rs. 3,50,000 for the faithful compliance of the requirements. Post site inspection, the Chief Engineer (Planning and Design) certified the completion of the development work undertaken by the appellant on 27 May, 1995.

The appellant handed over the formal possession of the land on 9 December, 1995, subsequent to which the respondents granted NOC dated 14 December, 1995.

On 9 April, 1996, the Municipal Corporation issued a circular, 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 which became the subject matter of the challenge.

During the pendency of the proceedings, the Municipal Corporation declined to consider the request for additional TDR on the ground of prevailing policy vide circular dated 9 April, 1996. The said circular was set aside however, the request for the grant of additional TDR was declined by the Court vide order dated 17 August, 2010. The same was challenged by the appellant which was eventually dismissed by the Bombay High Court.

The two primary issues that were considered by the bench were:

1. Whether the High Court was right in concluding that there was abandonment of claim by the appellants?

2. 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?

With respect to the first issue, the bench on perusal of the ‘law of abandonment’ opined that it is based upon the maxim invito beneficium non datur, which means that the law confers upon a man no rights or benefits which he does not desire.

However, during the period from 1996 to 2009, the right to claim additional TDR was in suspended animation making the appellant to necessarily wait till the cloud over their right was cleared. The Bench was of the view that the wait of the appellants during this period could not tantamount to abandonment which would otherwise be unjustified and unacceptable.

Therefore, the finding recorded by the High Court on issue No.1 was not in tune with the law or the facts of the present case and hence issue No.1 was answered in favor of the appellants, opined the Apex Court.

While considering the second question, the Bench perused various provisions of the Act of 1966 and stated that all activities undertaken by appellant through their architects till the handing over of possession of the land were not towards the development of amenity and which would entitle it for grant of additional TDR. All the work was undertaken as part of the effort to make the Municipal Corporation accept the surrender of land and to grant TDR.

The Court noted that the analysis of the correspondence between the parties show that no amenity was developed as required by law, by the appellant which would make it to be entitled to the additional TDR.

Thus, the Bench held that the High Court had rightly stated that appellants did not develop the amenity so as to be entitled to additional TDR.

Accordingly, the Bench dismissed the appeal with no additional costs.

The appellants were represented by learned senior counsel Shri P. Chidambaram, while the respondents were represented by learned senior counsel Shri Atmaram N.S. Nadkarni.