Case Note & Summary
The petitioner, a partnership firm, had its land acquired by the Mira Bhayander Municipal Corporation (Respondent No.1) for public purposes. In lieu of surrender of 24,611.75 sq.mtrs. of land, the Corporation agreed to grant a Development Rights Certificate (DRC) in the form of Transferable Development Rights (TDR). The Corporation issued DRC for 10,387 sq.mtrs. vide DRC 239 dated 30th May 2008 but did not grant DRC for the balance area of 14,224.75 sq.mtrs. The petitioner filed Writ Petition Nos. 2440 and 2441 of 2009, which were disposed of on consent terms, directing the petitioner to file a claim before the Land Acquisition Officer for monetary compensation. The Land Acquisition Officer fixed compensation, but the Corporation neither paid the monetary compensation nor granted the DRC. The petitioner then filed Writ Petition No.7338 of 2014, which was disposed of with a direction to the petitioner to appear before the Town Planner. Subsequently, the Corporation issued a communication dated 8th October 2018 rejecting the petitioner's claim for DRC on the ground that the land was not free from encumbrances, relying on Clause 3.0(vi) of Appendix-B to the Government Resolution dated 29th January 2016. The petitioner challenged this communication and the validity of the clause. The court held that Clause 3.0(vi) is not ultra vires as it is a reasonable condition to ensure the land is available for public purpose without legal impediments. However, the impugned communication was set aside because it did not consider the petitioner's representation and was passed without affording an opportunity of hearing. The court directed the Corporation to reconsider the petitioner's claim for DRC afresh, after giving the petitioner an opportunity to be heard, and to pass a reasoned order within eight weeks.
Headnote
A) Constitutional Law - Validity of Government Resolution - Ultra Vires - Clause 3.0(vi) of Appendix-B to Government Resolution dated 29th January 2016 - The condition requiring surrender of land free of all encumbrances is not ultra vires the Maharashtra Regional and Town Planning Act, 1966 as it is a reasonable condition to ensure that the land is available for public purpose without any legal impediment. (Paras 5-10) B) Municipal Law - Development Rights Certificate - Refusal - Communication dated 8th October 2018 - The impugned communication rejecting the petitioner's claim for DRC was set aside as it did not consider the petitioner's representation and was passed without affording an opportunity of hearing. (Paras 11-15) C) Land Acquisition - Compensation - TDR - The petitioner is entitled to DRC in lieu of compensation for the land surrendered, subject to compliance with the condition of surrendering land free of encumbrances. (Paras 2-4)
Issue of Consideration
Whether the condition in Clause 3.0(vi) of Appendix-B to the Government Resolution dated 29th January 2016 requiring surrender of land free of all encumbrances is ultra vires the Maharashtra Regional and Town Planning Act, 1966 and whether the impugned communication dated 8th October 2018 rejecting the petitioner's claim for DRC is valid.
Final Decision
The court held that Clause 3.0(vi) is not ultra vires. However, the impugned communication dated 8th October 2018 was set aside. Respondent No.1 is directed to reconsider the petitioner's claim for DRC afresh, after giving the petitioner an opportunity of being heard, and pass a reasoned order within eight weeks from the date of the order.
Law Points
- Development Rights Certificate (DRC)
- Transferable Development Rights (TDR)
- Land Acquisition
- Compensation
- Encumbrances
- Government Resolution
- Ultra Vires
- Municipal Corporation
- Writ Petition
