Case Note & Summary
The petitioners, Vijay Nagar Apartments (a partnership firm) and its partner Dhaval Ajmera, owned approximately 98,369.1 square meters of land in Village Anik, Bhakti Park, Chembur, Mumbai. The land was reserved for a garden in the Development Plan. The petitioners developed the garden at their own cost and applied for additional amenity TDR (Transferable Development Rights) under the Development Control Regulations (DCR) 33(9) read with Section 126 of the Maharashtra Regional and Town Planning (MRTP) Act, 1966. The Municipal Corporation of Greater Mumbai (BMC) initially issued a letter dated 4 April 2019 indicating eligibility for TDR, but later issued an impugned communication dated 5 November 2019 denying TDR on the ground that no road was constructed as required under DCR 35/36. The petitioners challenged this denial by way of a writ petition under Article 226 of the Constitution of India. The legal issues were whether the petitioners were entitled to additional amenity TDR for developing the garden, and whether the BMC could deny TDR for non-construction of a road. The petitioners argued that the reservation was for a garden, not a road, and that DCR 33(9) contains a non obstante clause overriding other provisions. The BMC contended that DCR 35/36 require construction of a road for TDR eligibility. The Court analyzed the relevant DCR provisions and held that DCR 33(9) is a specific provision for additional amenity TDR, and its non obstante clause overrides DCR 35/36. The Court found that the condition of constructing a road was not applicable to a garden reservation. The Court quashed the impugned communication and directed the BMC to grant additional amenity TDR as per the letter dated 4 April 2019. The petition was allowed with no order as to costs.
Headnote
A) Town Planning - Additional Amenity TDR - Garden Reservation - Entitlement - The petitioners owned land reserved for a garden in the Development Plan. They developed the garden at their own cost and sought additional amenity TDR under DCR 33(9) read with Section 126 of the MRTP Act, 1966. The BMC denied TDR on the ground that no road was constructed. The Court held that the reservation was for a garden, not a road, and the condition of constructing a road was not applicable. The Court directed the BMC to grant additional amenity TDR as per the letter dated 4 April 2019. (Paras 1-30) B) Interpretation of Statutes - Development Control Regulations - Purposive Construction - The Court interpreted DCR 33(9) and DCR 35/36 harmoniously, holding that the non obstante clause in DCR 33(9) overrides other provisions, and the entitlement to additional amenity TDR arises upon development of the amenity as per reservation, not upon construction of a road. (Paras 15-25) C) Constitutional Law - Article 226 - Writ of Certiorari - The Court quashed the impugned communication dated 5 November 2019 as arbitrary and contrary to law, and issued a writ of mandamus directing the BMC to grant additional amenity TDR. (Paras 26-30)
Issue of Consideration
Whether the Petitioners are entitled to additional amenity TDR in respect of their land reserved for a garden under the Development Plan, and whether the impugned communication dated 5 November 2019 denying such TDR on the ground that no road was constructed is valid.
Final Decision
The Court allowed the petition, quashed the impugned communication dated 5 November 2019, and directed the respondents to grant additional amenity TDR to the petitioners in terms of the letter dated 4 April 2019. No order as to costs.
Law Points
- Additional Amenity TDR
- Garden Reservation
- Development Control Regulations
- MRTP Act
- 1966
- Section 126
- DCR 33(9)
- DCR 35
- DCR 36
- Entitlement to TDR
- Reservation for Public Purpose
- Interpretation of DCR
- Purposive Construction
- Non obstante clause
- Rule of Harmonious Construction
