Case Note & Summary
The Supreme Court of India heard a batch of civil appeals arising from three judgments of the Bombay High Court concerning the entitlement of owners/lessees to Transferable Development Rights (TDR) for constructing amenities, specifically Development Plan (DP) Roads, on land surrendered to the Municipal Corporation of Greater Mumbai. The core dispute revolved around the interpretation of Regulation 34 read with Para 6 of Appendix-VII of the Development Control Regulations for Greater Bombay, 1991 (DCR), as interpreted by this Court in Godrej & Boyce Manufacturing Company Limited vs. State of Maharashtra, (2009) 5 SCC 24 (Godrej & Boyce I). In Godrej & Boyce I, this Court held that the expression 'equivalent' in Para 6 entitles the owner to 100% Floor Space Index (FSI) or TDR for the construction of an amenity, not merely 15% or 25% as per earlier circulars. The appellants, who had surrendered their reserved plots and constructed DP Roads at their own cost, were granted TDR only at 15% or 25% of the road area, and the Corporation refused to grant the additional 100% TDR as per Godrej & Boyce I. Subsequently, on 16.11.2016, the State amended Regulation 34, substituting Appendix-VII entirely, which the Corporation argued would apply retrospectively and deny the benefit. The High Court, by judgment dated 18.12.2018, dismissed several writ petitions on delay and laches, allowed some, and partly allowed one. By judgments dated 18.10.2019/08.11.2019 and 20.10.2022, the High Court allowed other writ petitions. All parties appealed. The Supreme Court framed the issues: whether the 2016 amendment has retrospective effect, and whether the High Court erred in dismissing petitions on delay. The Court noted that the right to TDR vests upon surrender and development of the amenity, and the amendment cannot nullify a binding judicial decision retrospectively. Relying on Natwar Parikh, the Court held that delay and laches cannot defeat vested rights. The Court allowed the appeals of the owners (appellants) against the dismissal on delay, and dismissed the Corporation's appeals against the allowed petitions, thereby upholding the entitlement to 100% TDR as per Godrej & Boyce I for those who had surrendered and developed prior to the 2016 amendment.
Headnote
A) Town Planning - Development Rights - Transferable Development Rights (TDR) - Regulation 34 read with Para 6 of Appendix-VII of Development Control Regulations for Greater Bombay, 1991 - The issue pertains to the entitlement of owners who surrendered land and constructed DP Roads at their own cost to receive TDR equivalent to 100% of the area of the amenity constructed, as interpreted in Godrej & Boyce Manufacturing Company Limited vs. State of Maharashtra, (2009) 5 SCC 24. The High Court had dismissed some writ petitions on delay and laches and allowed others, leading to appeals. The Supreme Court held that the right to TDR vests upon surrender and development, and the 2016 amendment cannot operate retrospectively to defeat vested rights. (Paras 2-4, 6-7) B) Delegated Legislation - Retrospectivity - Amendment cannot nullify judicial decision - The notification dated 16.11.2016 amending Regulation 34 and Appendix-VII was held to be prospective in operation. The Supreme Court ruled that delegated legislation cannot have retrospective effect to nullify a binding judgment of the Supreme Court, especially when the judgment had already interpreted the unamended provision. The amendment does not affect cases where the owner had already surrendered the land and constructed the amenity prior to the amendment. (Paras 3.2, 3.5, 6-7) C) Limitation - Delay and Laches - Writ Petitions - The High Court had dismissed some writ petitions on the ground of delay and laches. The Supreme Court, relying on Municipal Corporation of Greater Bombay vs. Natwar Parikh & Co. Pvt. Ltd., Civil Appeal No.1748 of 2015, held that delay and laches cannot be a ground to deny relief when the right to TDR is a vested right and the Corporation had consistently denied the benefit despite the law declared by this Court. The appeals against such dismissals were allowed. (Paras 2.1, 3.1, 6-7)
Issue of Consideration
Whether the notification dated 16.11.2016 amending Regulation 34 of the DCR, 1991 has retrospective effect so as to deny the benefit of 100% TDR for construction of amenity as interpreted in Godrej & Boyce I, and whether the High Court erred in dismissing some writ petitions on delay and laches.
Final Decision
The Supreme Court allowed the appeals filed by the owners (appellants) against the dismissal of their writ petitions on delay and laches, and dismissed the appeals filed by the Municipal Corporation against the allowed writ petitions. The Court held that the 2016 amendment to Regulation 34 is prospective and does not affect cases where the owner had surrendered the land and constructed the amenity prior to the amendment. The owners are entitled to 100% TDR for the construction of the amenity as per Godrej & Boyce I. The matters are remanded to the Municipal Corporation for computation and grant of TDR in accordance with law.
Law Points
- Interpretation of Regulation 34 read with Para 6 of Appendix-VII of DCR
- 1991
- Retrospective operation of delegated legislation cannot nullify a judicial decision
- Vested right to TDR accrues upon surrender and development of amenity
- Doctrine of prospective overruling
- Per incuriam plea rejected
