Summary
Landowners who surrendered land reserved for development-plan roads and built the roads at their own cost were held entitled to the balance additional FSI/TDR for the amenity under Section 126(1)(b) of the MRTP Act, 1966 as construed in Godrej & Boyce I. The Supreme Court set aside the High Court's dismissal of their writ petitions for delay and laches, because compensation once determined is payable without demand and the Corporation showed no prejudice or third-party rights, and dismissed the Corporation's appeals.
Issues
- Whether the High Court was right to refuse relief, on the ground of delay and laches or abandonment, to landowners claiming the balance 100% additional FSI/TDR for amenities (DP roads) built at their cost on surrendered land.
- Whether the appeals of the Municipal Corporation of Greater Mumbai against the High Court judgments granting such additional FSI/TDR called for interference.
Provisions considered
- Section 126(1)(b), Maharashtra Regional and Town Planning Act, 1966Read, following Godrej & Boyce I, as providing compensation in kind under two heads: FSI/TDR for the area of land surrendered free of cost, and further additional FSI/TDR for developing or constructing the amenity on that land at the owner's cost, as the Development Control Regulations provide; once so determined, this compensation is payable even without a request. (¶¶ 12, 12.1, 12.2, 12.5, 12.6, 18)
- Regulation 34 read with Paras 5 and 6 of Appendix-VII, Development Control Regulations for Greater Bombay, 1991Para 5 gives TDR equal to the gross area of the surrendered plot and Para 6 gives further TDR 'equivalent to the area of construction/development' of the amenity; as held in Godrej & Boyce I, the area of the amenity is the measure, so circulars limiting road amenity TDR to 15% or 25% were without authority of law. (¶¶ 2, 2.2, 12.7, 15.2, 20)
- Article 300A, Constitution of IndiaThe State is duty-bound to pay compensation to land losers, failing which Article 300A is breached; this duty underpinned the holding that delay and laches could not defeat the claims to compensatory FSI/TDR. (¶ 18)
- Article 226, Constitution of IndiaThe High Court had declined to exercise writ jurisdiction because of the petitioners' delay; the Supreme Court held that delay and laches is a discretionary, not absolute, bar and did not apply on these facts. (¶¶ 17, 17.1, 18, 18.1)
Held
- Godrej & Boyce I, which the Supreme Court refused to revisit or make prospective in Natwar Parikh (Civil Appeal No.1748 of 2015), holds that the additional FSI/TDR for an amenity built on surrendered land equals the area of that amenity, and the reasoning in Yeshwant Jagannath Vaity applies equally to these cases. (¶¶ 12.5, 12.6, 12.7, 13.2, 15.2, 18)
- Delay and laches is a matter of judicial discretion, not an absolute bar. It does not apply to a continuing cause of action or where the circumstances shock the judicial conscience, and the real test is whether third-party rights have arisen in the meantime; in compensation matters for land losers, the view that advances justice is to be preferred over technicalities. Abandonment and waiver require an intentional relinquishment of a known right. (¶¶ 14, 17, 17.1, 17.2, 17.3)
- Once compensation in the form of FSI/TDR is determined it is payable even without a representation, as the State must compensate land losers under Article 300A. The Corporation showed no prejudice or intervening third-party rights from any short delay caused by uncertainty in the law, its delay calculations were not accepted, and the delay was in fact its own in complying with the Regulations; delay, laches, abandonment and waiver did not apply, as Godrej & Boyce II had already rejected abandonment. (¶ 18)
- The High Court therefore erred in dismissing the writ petitions on the ground of delay and laches, and its reasoning on merits in the three judgments challenged by the Corporation was just and proper. (¶¶ 18.1, 19)
- For the appellant Kukreja Construction Company, which the Corporation said had not met the conditions for the amenity, the Corporation must first examine the nature of the amenities constructed before considering the claim for additional FSI/TDR. (¶¶ 9.1, 20)
Result
Appeals by the writ petitioners allowed; portions of the High Court order dated 18.12.2018 dismissing writ petitions for delay and laches set aside, and the Corporation directed to consider their cases in light of Godrej & Boyce I and release the balance FSI/TDR (for Kukreja Construction, after examining the amenities built) within three months; the Corporation's appeals dismissed with the balance FSI/TDR to be released to those respondents within three months; parties to bear their own costs.