Case Note & Summary
The petitioner, Natvar Parikh & Co. Pvt. Ltd., a company in the business of construction and development, filed a writ petition seeking direction to the Municipal Corporation of Greater Mumbai and its Executive Engineer to grant additional Transfer of Development Rights (TDR) for the balance 75% area, as 25% TDR had already been granted. The petitioner had constructed a specified D.P. Road at village Borla, Ghatkopar Mankhurd Link Road, M/East Ward, Mumbai, and surrendered land for the road. The respondents admitted the work done in an affidavit dated 22.10.2010. The Supreme Court in Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra (6.2.2009) held that municipal executive instructions/circulars cannot override statutory provisions under the Maharashtra Regional and Town Planning Act, 1966 and the Development Control Regulations for Greater Bombay, 1991, and directed grant of 100% TDR where road construction was a condition. The High Court found that the present case was squarely covered by this decision. The respondents argued that the petitioner was not entitled to 100% TDR based on executive instructions, but the court rejected this, holding that statutory provisions prevail. The court allowed the petition, directing the respondents to grant 100% TDR to the petitioner within four weeks, considering the work already done and the land surrendered.
Headnote
A) Town Planning - Transfer of Development Rights - Statutory Provisions vs. Executive Instructions - Maharashtra Regional and Town Planning Act, 1966 and Development Control Regulations for Greater Bombay, 1991 - The petitioner constructed a road and surrendered land for a D.P. Road, but the Municipal Corporation granted only 25% TDR based on executive instructions. The Supreme Court in Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra held that such instructions cannot override statutory provisions. The High Court applied this principle and directed grant of 100% TDR. Held that the construction of the road was a condition for grant of 100% TDR, and the respondents are bound by the statutory scheme. (Paras 3-5)
Issue of Consideration
Whether the petitioner is entitled to 100% Transfer of Development Rights (TDR) for construction of a road and surrender of land, despite the Municipal Corporation granting only 25% TDR based on executive instructions/circulars.
Final Decision
The petition is allowed. The respondents are directed to grant 100% TDR to the petitioner within four weeks from the date of the order, considering the work already done and the land surrendered.
Law Points
- Transfer of Development Rights
- Statutory provisions override executive instructions
- Equivalence for grant of additional FSI
- Maharashtra Regional and Town Planning Act
- 1966
- Development Control Regulations for Greater Bombay
- 1991
Case Details
2014 LawText (BOM) (04) 97
WRIT PETITION NO. 451 OF 2010
ANOOP V. MOHTA, M.S.SONAK
Mr. Pravin Samdani, Senior Advocate, Mr.Kunal Vajani, Mr. Pranaya Goyal, Mr. Himanshu Vidhani/b. M/s. Wadia Ghandy & Co. for the Petitioner; Mr. D.A. Nalawade, GP for Respondent No.1-State; Mr. A.Y. Sakhare, Senior Advocate with Ms. Trupti Puranik for Respondent No.2 & 3 BMC
Natvar Parikh & Co. Pvt. Ltd.
The State of Maharashtra, Municipal Corporation of Greater Mumbai, The Executive Engineer (Development Plan), Municipal Corporation of Greater Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition seeking direction to grant additional Transfer of Development Rights (TDR) for construction of a road and surrender of land.
Remedy Sought
Petitioner sought direction to Respondent Nos.2 and 3 to forthwith grant additional TDR/DRC for the balance 75% area as set out in the Schedules annexed to the petition.
Filing Reason
Respondents granted only 25% TDR instead of 100% TDR for construction of a D.P. Road, relying on executive instructions/circulars, which the petitioner contended were contrary to statutory provisions.
Previous Decisions
Respondents granted 25% TDR on 11.7.2006 and 18.8.2007. The Supreme Court in Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra (6.2.2009) held that executive instructions cannot override statutory provisions and directed grant of 100% TDR in similar circumstances.
Issues
Whether the petitioner is entitled to 100% TDR for construction of a road and surrender of land, despite the Municipal Corporation granting only 25% TDR based on executive instructions.
Whether municipal executive instructions/circulars can override statutory provisions under the MRTP Act and DCR.
Submissions/Arguments
Petitioner argued that the Supreme Court's decision in Godrej and Boyce squarely covers the case, and the respondents are bound to grant 100% TDR as the road construction was a condition for such grant.
Respondents argued that the petitioner was not entitled to 100% TDR based on executive instructions/circulars.
Ratio Decidendi
Municipal executive instructions/circulars cannot override or supersede statutory provisions under the Maharashtra Regional and Town Planning Act, 1966 and the Development Control Regulations for Greater Bombay, 1991. Where construction of a road is a condition for grant of 100% TDR, the petitioner is entitled to 100% TDR, and the respondents cannot limit it to 25% based on non-statutory instructions.
Judgment Excerpts
The Apex Court on 6.2.2009, in case of Godrej and Boyce Manufacturing Company Limited Vs. State of Maharashtra & ors., after considering the provisions of the Maharashtra Regional & Town Planning Act, 1966 (MRTP) and the Development Control Regulations for Grater Bombay, 1991 (the Regulations) while dealing with the additional Floor Space Index (for short, FSI) or TDR and measure of determining equivalence for grant of additional FSI, observed that the Municipal executive instructions/circulars of Municipal Authorities are in no way override and/or supersede the statutory provisions, and thereby directed to grant 100% TDR, since the construction of the road was a condition for grant of 100% TDR.
The judgment/decision (supra) squarely covered and governed the undisputed facts on record so far as construction of road and the surrendered land for the same as recorded above.
Procedural History
The petitioner filed Writ Petition No. 451 of 2010 before the Bombay High Court. The court reserved judgment on 17.04.2014 and pronounced it on 22.04.2014. Rule was issued and heard finally.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966:
- Development Control Regulations for Greater Bombay, 1991:
