In Civil Appeal no. 9021 of 2014- SC- Godrej and Boyce Manufacturing Company not entitled to additional Transferable Development Rights (TDR) in the development plan for Greater Mumbai: Supreme Court
Justice V. Ramasubramanian and Justice Pankaj Mithal [08-05-2023]

Read Order: Godrej And Boyce Manufacturing Company Limited Through Its Constituted Attorney & Anr v. The Municipal Corporation Of Greater Mumbai & Ors

Simran Singh

New Delhi, May 9, 2023: The Supreme Court has dismissed an appeal by Godrej & Boyce Manufacturing Company Ltd. challenging a Bombay High Court order that had dismissed their claim for grant of Development Rights Certificate (DRC) for an area of about 31,000 sq. metres, for the construction and development of a ‘recreation ground’ in the Greater Mumbai region.

While exercising its civil appellate jurisdiction, the Division Bench of Justice V. Ramasubramanian and Justice Pankaj Mithal dismissed the appeal while stating that no amenity was developed by the appellant as required by law which would make it to be entitled to the additional Transferable Development Rights (TDR). “Whatever the appellants had done through their architects up to the date of handing over possession and getting the DRC, was not projected by them as the development of amenity,” the bench said.

Factual Matrix of the case

In the matter at hand, the appellant was the owner of the plot in second Development Plan (‘DP’) for Greater Mumbai which was sanctioned between 1991 and 1994. Section 126 (1) of the Maharashtra Regional and Town Planning Act, 1966 (‘Act of 1966’) had the power to acquire any land required or reserved for any of the public purposes specified in any plan or scheme, after the publication of a Draft Regional Plan (DRP) or a DP or Town Planning Scheme (TPS).

The appellant made an application dated 14-07-1994 for surrendering land which was reserved under the DP for the purpose of ‘recreation ground’ and an application for the grant of DRC was also enclosed. TDR was granted in lieu of compensation for acquisition of land and the architects of the appellant expressed their intention to develop the land sought to be surrendered.

The Chief Engineer (Development Plan) informed the appellant that their request for the grant of DRC would be considered after the requirements mentioned in the letter of intent dated 05-04-1995 were complied with along with the security deposit of INR 3,50,000/-  for the faithful compliance of the requirements. Post site inspection, the Chief Engineer (Planning and Design) certified the completion of the development work undertaken by the appellant on 27-05-1995.

The appellant handed over the formal possession of the land on 09-12-1995, subsequent to which the respondents granted NOC dated 14-13-1995

On 09-04-1996, the Municipal Corporation issued a circular, restricting the grant of additional TDR in respect of amenities such as ‘recreation ground’, only for the structures allowed to be constructed within the reservations, to the extent of built-up area of such structures subject to a maximum of 15% area of the reservations which became the subject matter of the challenge.

During the pendency of the proceedings, the Municipal Corporation declined to consider the request for additional TDR on the ground of prevailing policy vide circular dated 09-04-1996. The said circular was set aside however, the request for the grant of additional TDR was declined by the Court vide order dated 17-08-2010. The same was challenged by the appellant which was eventually dismissed by the Bombay High Court.

Issue for consideration

1. Whether the High Court was right in concluding that there was abandonment of claim by the appellants?
2. Whether the finding of fact arrived at by the High Court that the appellants did not and could not have developed the amenity, calls for any interference, especially in the light of the statutory provisions and the facts that unfold from the correspondence exchanged between the parties?

Court Analysis

The Court stated that the law of abandonment was based upon the maxim invito beneficium non datur which meant that the law conferred upon a man no rights or benefits which he does not desire. However, during the period from 1996 to 2009, the right to claim additional TDR was in suspended animation making the appellant to necessarily wait till the cloud over their right was cleared.  The Bench was of the view that the wait of the appellants during this period could not tantamount to abandonment which would otherwise be unjustified and unacceptable.

Hence held that the the decision of the High Court in concluding that there was abandonment of claim by the appellants was not in tune with the law or the facts of the present case and accordingly answered question no. 1 in favour of the appellants.

While considering the second question, the Bench navigated through various provisions of the Act of 1966 and stated that all activities undertaken by appellant through their architects till the handing over of possession of the land were not towards the development of amenity and which would entitle it for grant of additional TDR. All the work was undertaken as part of the effort to make the Municipal Corporation accept the surrender of land and to grant TDR.

The Court noted that the analysis of the correspondence between the parties show that no amenity was developed as required by law, by the appellant which would make it to be entitled to the additional TDR.

Thus, the Bench held that the High Court had rightly stated that appellants did not develop the amenity so as to be entitled to additional TDR.

With the above observation, the Bench dismissed the appeal with no additional costs.