# Kukreja Construction Company & Others v. State of Maharashtra & Others

- **Citation:** 2024 INSC 692
- **Court:** Supreme Court of India
- **Decided:** 2024-09-13
- **Case number:** Civil Appeal No. 9702 of 2024
- **Bench:** B.V. Nagarathna, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kukreja-construction-company-others-v-state-of-maharashtra-others-38097
- **Pages:** 51

## Headnote

Whether the High Court was right in declining to grant relief to
the writ petitioners-appellants herein on the ground of delay and
laches; whether the appeals filed by the respondent-Mumbai
Municipal Corporation would call for any interference; what order
to be passed.
Headnotes†
Maharashtra Regional and Town Planning Act, 1966 -
s.126(1)(b) - Acquisition of land required for public purposes
specified in plans - Development Control Regulations for
Greater Bombay, 1991 - Regulations 33; 34 r/w Para 6 of
Appendix-VII - Determination of compensation in form of Floor
Space Index (FSI) and/or Transferrable Development Rights
(TDR) - Claim for additional FSI/TDR against the development/
construction of the amenity on the surrendered land at owner
or lessee's cost - Inapplicability of doctrine of delay and
laches - Appellants-land owners held plots reserved in the
sanctioned development plan for Development Plan Road
(DP Road) - Appellants had constructed DP Road at their
own cost and voluntarily surrendered the reserved lands to
the respondent-Corporation, were granted 25% TDR for the
construction of said amenity at their cost - Later, after the
judgment of Supreme Court in Godrej & Boyce Manufacturing
Company Limited v. State of Maharashtra reported as [2009]
1 SCR 1016 (Godrej & Boyce I) holding that the owner or
lessee would be entitled to FSI or TDR equivalent to 100%
of the area of the road constructed by them, the appellants
* Author
[2024] 9 S.C.R.
831
Kukreja Construction Company & Others v.
State of Maharashtra & Others
claimed additional FSI/TDR - Rejected by High Court on the
ground of delay and laches - Correctness:
Held: Not correct - Question of delay and laches would not
arise in present cases - Once the compensation is determined
in the form of FSI/TDR, the same is payable even without any
representation or request being made, as otherwise there would
be a breach of Article 300-A of the Constitution - Respondent did
not establish that owing to a short delay even if it had occurred in
any of these cases owing to uncertainty in law, it was prejudiced
by the same or that third-party rights were created which could
not be disturbed owing to delay or laches - Neither the doctrine
of delay and laches nor the principle of abandonment of claim or
waiver would apply in these cases - Rather, the delay occurred
on the part of the Mumbai Municipal Corporation in complying
with the Regulations insofar as the appellants are concerned -
High Court not right in dismissing the writ petitions on the ground
of delay and laches, impugned order set aside to that extent -
However, reasoning of the High Court holding that the 2016
notification amending Regulation 34 of the 1991 DCR would not
apply retrospectively or retroactively to a land reserved under the
development plan which is surrendered and amenity is developed
on the said land by the owner or lessee thereof at his own cost
prior to the amendment, not interfered on merits - Respondent to
consider the case of writ petitioners-appellants herein in light of
Godrej & Boyce I case and release the balance FSI/TDR to the
appellants however, in the case of appellant - Kukreja Construction
company and others, the respondent to consider the nature of
the amenities constructed and thereafter consider their case for
additional FSI/TDR. [Paras 4.8, 18, 20]

## Text

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[2024] 9 S.C.R. 830 : 2024 INSC 692
Kukreja Construction Company & Others
v.
State of Maharashtra & Others
(Civil Appeal No. 9702 of 2024)
13 September 2024
[B.V. Nagarathna* and
Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
Whether the High Court was right in declining to grant relief to
the writ petitioners-appellants herein on the ground of delay and
laches; whether the appeals filed by the respondent-Mumbai
Municipal Corporation would call for any interference; what order
to be passed.
Headnotes†
Maharashtra Regional and Town Planning Act, 1966 -
s.126(1)(b) - Acquisition of land required for public purposes
specified in plans - Development Control Regulations for
Greater Bombay, 1991 - Regulations 33; 34 r/w Para 6 of
Appendix-VII - Determination of compensation in form of Floor
Space Index (FSI) and/or Transferrable Development Rights
(TDR) - Claim for additional FSI/TDR against the development/
construction of the amenity on the surrendered land at owner
or lessee's cost - Inapplicability of doctrine of delay and
laches - Appellants-land owners held plots reserved in the
sanctioned development plan for Development Plan Road
(DP Road) - Appellants had constructed DP Road at their
own cost and voluntarily surrendered the reserved lands to
the respondent-Corporation, were granted 25% TDR for the
construction of said amenity at their cost - Later, after the
judgment of Supreme Court in Godrej & Boyce Manufacturing
Company Limited v. State of Maharashtra reported as [2009]
1 SCR 1016 (Godrej & Boyce I) holding that the owner or
lessee would be entitled to FSI or TDR equivalent to 100%
of the area of the road constructed by them, the appellants
* Author
[2024] 9 S.C.R.
831
Kukreja Construction Company & Others v.
State of Maharashtra & Others
claimed additional FSI/TDR - Rejected by High Court on the
ground of delay and laches - Correctness:
Held: Not correct - Question of delay and laches would not
arise in present cases - Once the compensation is determined
in the form of FSI/TDR, the same is payable even without any
representation or request being made, as otherwise there would
be a breach of Article 300-A of the Constitution - Respondent did
not establish that owing to a short delay even if it had occurred in
any of these cases owing to uncertainty in law, it was prejudiced
by the same or that third-party rights were created which could
not be disturbed owing to delay or laches - Neither the doctrine
of delay and laches nor the principle of abandonment of claim or
waiver would apply in these cases - Rather, the delay occurred
on the part of the Mumbai Municipal Corporation in complying
with the Regulations insofar as the appellants are concerned -
High Court not right in dismissing the writ petitions on the ground
of delay and laches, impugned order set aside to that extent -
However, reasoning of the High Court holding that the 2016
notification amending Regulation 34 of the 1991 DCR would not
apply retrospectively or retroactively to a land reserved under the
development plan which is surrendered and amenity is developed
on the said land by the owner or lessee thereof at his own cost
prior to the amendment, not interfered on merits - Respondent to
consider the case of writ petitioners-appellants herein in light of
Godrej & Boyce I case and release the balance FSI/TDR to the
appellants however, in the case of appellant - Kukreja Construction
company and others, the respondent to consider the nature of
the amenities constructed and thereafter consider their case for
additional FSI/TDR. [Paras 4.8, 18, 20]
Case Law Cited
Godrej & Boyce Manufacturing Company Limited v. State of
Maharashtra [2009] 1 SCR 1016 : (2009) 5 SCC 24; Municipal
Corporation of Greater Bombay v. Natwar Parikh & Co. Pvt. Ltd.,
Civil Appeal No. 1748 of 2015; Noida Entrepreneur Association
v. NOIDA [2011] 8 SCR 25 : (2011) 6 SCC 508; Sukh Dutt Ratra
v. State of Himachal Pradesh [2022] 2 SCR 1041 : (2022) SCC
OnLine SC 410; Lalaram v. Jaipur Development Authority [2015]
14 SCR 403 : (2016) 11 SCC 31; Moon Mills Ltd. v. M.R. Meher,
832
[2024] 9 S.C.R.
Digital Supreme Court Reports
President, Industrial Court, Bombay, AIR 1967 SC 1450; M/s Dehri
Rohtas Light Railway Company Limited v. District Board, Bhojpur,
[1992] 2 SCR 155 : (1992) 2 SCC 598; Hindustan Petroleum
Corporation Ltd. v. Dolly Das (1999) 4 SCC 450; Mohar Singh
(Dead) Thr. Lrs. v. State of UP Collector [2023] 14 SCR 842 : 2023
INSC 1019; Godrej & Boyce Manufacturing Co. Ltd. v. Municipal
Corporation of Greater Mumbai [2023] 6 SCR 56 : (2023) SCC
OnLine SC 592; A.P. SRTC v. S. Jayaram (2004) 13 SCC 792;
Municipal Corporation of Greater Bombay v. Yeshwant Jagannath
Vaity [2011] 5 SCR 653 (2011) 11 SCC 88; Vidya Devi v. State of
Himachal Pradesh [2020] 1 SCR 749 : (2020) 2 SCC 569; Dehri
Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur [1992] 2 SCR
155 : (1992) 2 SCC 598; Tukaram Kana Joshi v. Maharashtra
Industrial Development Corporation [2012] 13 SCR 29 : (2013) 1
SCC 353; Kazi Moinuddin Kazi Bashiroddin v. Maharashtra Tourism
Development Corporation [2022] 7 SCR 509 : (2022) SCC OnLine
SC 1325; G.T. Lad v. Chemical and Fibres of India Ltd. [1979] 2
SCR 613 : (1979) 1 SCC 590; State of Punjab v. Davinder Pal Singh
Bhullar [2011] 15 SCR 540 : (2011) 14 SCC 770 - referred to.
Natwar Parikh & Co. Pvt. Ltd. v. State of Maharashtra, 2014 SCC
Online Bom 495 - referred to.
List of Acts
Maharashtra Regional and Town Planning Act, 1966; Development
Control Regulations for Greater Bombay, 1991; Mumbai Municipal
Corporation Act, 1888; Constitution of India.
List of Keywords
Acquisition of land for public purposes; Sanctioned development
plan; Development Plan Road (DP Road); Amenity; Delay and
laches; Mumbai Municipal Corporation; Compensation; Floor Space
Index (FSI); Transferrable Development Rights (TDR); Additional
FSI/TDR; Development Rights Certificates; Surrendered plot/
land; Development/construction of the amenity on surrendered
land at owner or lessee's cost; Article 300-A of the Constitution of
India; Principle of abandonment of claim or waiver; Abandonment/
waiver of rights; Retrospective; Retroactive; Construction of road;
Surrender of land reserved for road; Development right; Planning
Authority; Development Authority; Appropriate Authority; Free of
cost; Free from all encumbrances.
[2024] 9 S.C.R.
833
Kukreja Construction Company & Others v.
State of Maharashtra & Others
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9702 of 2024
From the Judgment and Order dated 18.12.2018 of the High Court
of Judicature at Bombay in WP No.1898 of 2009
With
Civil Appeal Nos. 9703, 9704, 9705, 9706, 9707, 9708, 9709, 9710,
9711, and 9712 of 2024
Appearances for Parties
R. Venkataramani, AG, ANS Nadkarni, Pravin K. Samdani, Amar
Dave, Shikhil Suri, Ms. Liz Mathew, Sr. Advs., Ms. Asha Gopalan
Nair, Ms. Nivedita Nair, S.S. Rebello, Ms. Deepti Arya, Ms. Manisha
Gupta, Rishikesh Haridas, Ms. Himanshi Nagpal, M/s. Pratap and
Co., Ms. Pallavi Pratap, Sandip Patil, Raghav Gupta, Gaurav
Gopal, Chiranjivi Sharma, Filji Frederick, Ms. Apoorva Kaushik,
Vasu Gupta, Uday Mathur, Pranaya Goyal, Mahesh Agarwal,
Rishi Agrawala, Ankur Saigal, Anshuman Srivastava, Divyanshu
Srivastava, Kaustubh Singh, Ms. Vidisha Swarup, E. C. Agrawala,
Ms. Madhu Suri, Ms. Jyoti Suri, Ms. Wamika Chadha, Ms. Vidhi
Kapoor, Ms. Ishita Ahuja, Ms. Divya Swami, Aaditya Aniruddha
Pande, Naresh Jain, Ms. Arati Agarwal, Ms. Neha, Alok Kumar,
Rameshwar Prasad Goyal, Mukul Taly, Phiroze Merchant, Ms.
Mamta Singh, Ms. Anchala C., Ms. Mallika Agarwal, Ms. Bagavathy
Vennimalai, Navneet R., Rahul Chitnis, Siddharth Dharmadhikari,
Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse,
Adarsh Dubey, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
These appeals have been filed against three impugned judgments
and orders of the High Court of Judicature at Bombay, namely,
i)
Judgment dated 18.12.2018 whereby Writ Petition Nos.
1898/2009, 1823/2012, 839/2015, 2871/2015, 2107/2016,
2170/2016, 384/2017 and 541/2017 were rejected on the ground
834
[2024] 9 S.C.R.
Digital Supreme Court Reports
of delay and laches and the writ petitioners therein/appellants
herein have filed an appeal. Writ Petition Nos. 203/2014 and
2262/2010 were allowed and Writ Petition No.1860/2017 was
partly allowed.
As against Writ Petition No.203/2014, Municipal Corporation of Greater
Mumbai (hereinafter referred as "Mumbai Municipal Corporation") has
filed Civil Appeal No.9708/2024 arising out of Special Leave Petition
(Civil) No.13365/2019. However, as against orders in Writ Petition
No.2262/2010 and 1860/2017, there are no Special Leave Petitions
filed by the Mumbai Municipal Corporation;
ii)
Judgment and Order dated 18.10.2019/08.11.2019 whereby Writ
Petition No.2531/2009 was allowed and the Mumbai Municipal
Corporation has filed Civil Appeal No.9711/2024 arising out of
Special Leave Petition (Civil) No.10430 of 2020;
iii)
Judgment dated 20.10.2022 whereby Writ Petition No.411/2013
was allowed and the Mumbai Municipal Corporation has filed
Civil Appeal No.9712/2024 arising out of Special Leave Petition
(Civil) No.606 of 2023.
1.1 Thus, there are sets of judgments and orders of the Bombay
High Court which have been considered together owing to
their similarity.
1.2 The High Court considered the writ petitions on the issue
concerning the implementation of the decision of this Court
in Godrej & Boyce Manufacturing Company Limited
vs. State of Maharashtra (2009) 5 SCC 24 ("Godrej &
Boyce I"). The said decision dealt with Regulation 34 read with
Para 6 of Appendix-VII to the Development Control Regulations
for Greater Bombay, 1991 ("the DCR" for short).
Relevant facts:
2.
With regard to the order dated 18.12.2018, the writ petitioners before
the High Court (appellants herein) were holding plots of land shown
as reserved in the sanctioned development plan under the provisions
of the Maharashtra Regional and Town Planning Act, 1966 ("MRTP
Act" for short) which were reserved for Development Plan Road ("DP
Road" for short). According to the writ petitioners, they constructed
DP Roads at their own cost and voluntarily surrendered the reserved
[2024] 9 S.C.R.
835
Kukreja Construction Company & Others v.
State of Maharashtra & Others
lands to the Mumbai Municipal Corporation. In lieu thereof, in terms
of clause (b) of sub-section (1) of Section 126 of the MRTP Act read
with Regulations 33 and 34 as well as Para 5 of Appendix-VII of
DCR, the writ petitioners were granted Floor Space Index ("FSI" for
short) and/or Transferrable Development Rights ("TDR" for short)
in the form of Development Rights Certificates ("DRC" for short)
equal to the gross area of the plots surrendered by them. Para 6 of
Appendix-VII (as it stood prior to its amendment) provided that when
an owner or a lessee also develops or constructs the amenities on
the surrendered plot at his own cost and hands over the developed/
constructed amenity to the Municipal Commissioner, he is entitled to
DRC in the form of FSI or TDR equivalent to the area of construction/
development done by him. The expression "amenity" has been
defined in sub-section (2) of Section 2 of the MRTP Act as well as
clause (7) of Regulation 3 of DCR.
2.1 For the purpose of implementation of the DCR, two Circulars
were issued on 09.04.1996 and 05.04.2003. By Circular dated
09.04.1996, the DRC equivalent to 15% area of the DP Road
constructed by the owner or lessee on the surrendered plot
was to be provided when the owner or lessee surrendered the
developed amenity together with the reserved plot. By Circular
dated 05.04.2003, the figure was enhanced to 25%.
2.2 In Godrej & Boyce I, this Court held that the expression
"equivalent" in Para 6 of Appendix-VII would entitle the owner or
lessee to 100% FSI or TDR for the construction of an amenity at
his cost. Therefore, FSI or TDR for construction of an amenity
would not be confined to 15% or 25% of DP Road area and it
would be equivalent to 100% of the area of the road constructed
by the owner or the lessee.
2.3 The grievance of the writ petitioners before the High Court was
that the Mumbai Municipal Corporation had declined to grant
100% additional TDR equivalent to the area of the amenity
developed. By a notification issued on 16.11.2016, Regulation 34
of the DCR was amended. As a result, Appendix-VII was virtually
obliterated from the DCR. The notification dated 16.11.2016 was
assailed and question arose as to whether the modifications
made by the notification amending Regulation 34 of the DCR
would have retrospective or retroactive operation.
836
[2024] 9 S.C.R.
Digital Supreme Court Reports
2.4 The High Court made a brief reference to the facts of each
of the writ petitions and considered the detailed submissions
made on behalf of the writ petitioners, the Mumbai Municipal
Corporation and the State Government.
Contentions before the High Court:
3.
It was contended on behalf of the writ petitioners before the High
Court that the unamended Regulation 33(1) of the DCR enabled the
owner of the land to seek benefit of FSI of the land reserved for DP
Road and utilize the same on the remaining land. Till 17.06.2010,
there was no entitlement to seek FSI under Regulation 33 for
construction of an amenity and the amenity TDR was available
only under Regulation 34 read with Para 6 of Appendix-VII. The
amendment made on 17.06.2010 to Regulation 33 resulted in the
owner, who had constructed the road, instead of TDR, to opt for
FSI to be utilized on the remainder of the land. He would then be
entitled to an extent of 25% of the FSI. But if the owner constructed
an amenity but did not avail FSI benefit on the remainder land, the
benefit was separated from the land and given in the form of TDR
under Regulation 34 read with Para 6 of Appendix-VII. That Para 6
of Appendix-VII was not amended as such on 17.06.2010 after the
decision of this Court in Godrej & Boyce I as no amendment was
carried out as such. However, by the notification dated 16.11.2016,
the entire Regulation 34 and Appendix-VII were substituted. As per
the amended provision, the owner was eligible to obtain TDR for the
land at the rate mentioned in Para 4.1 of the amended Regulations
as the owner who developed the amenity thereon became eligible
to receive TDR in terms of Para 4.2 but by this, Regulation 33(1)
did not undergo any amendment.
3.1 It was contended that the aforesaid amendment should be
construed to be prospective as otherwise it would apply to
cases where amenity was developed and surrendered earlier,
and hence would be unconstitutional. It was pointed out
that subsequent to the judgment of this Court in Godrej &
Boyce I, in the case of Municipal Corporation of Greater
Bombay vs. Natwar Parikh & Co. Pvt. Ltd., Civil Appeal
No.1748 of 2015 ("Natwar Parikh") this Court had rejected
the prayer of the Mumbai Municipal Corporation to revisit the
decision in the case of Godrej & Boyce I and had also rejected
[2024] 9 S.C.R.
837
Kukreja Construction Company & Others v.
State of Maharashtra & Others
the prayer for declaring that the said judgment would have
only a prospective effect. In the said case, this Court had also
rejected an argument of delay and laches.
3.2 It was further contended that the notification dated 16.11.2016
could not have a retrospective effect as the decision of this
Court in Godrej & Boyce I could not have been nullified by
taking away the vested right conferred, without altering the
basis of the judgment.
3.3 It was next contended that clause (b) of sub-section (1) of
Section 126 of the MRTP Act, which was incorporated into
the statute book with retrospective effect from 25.03.1991,
would imply that prior to the said date, there was no provision
for FSI/TDR for construction of a road by the owner. That
for the first time w.e.f. 17.06.2010, provision was made for
an additional 25% FSI for construction of DP Road. Since a
road falls within the definition of amenity under the DCR as
well as MRTP Act, compensation in the form of FSI/TDR for
the construction of an amenity as provided by the relevant
DCR ought to have been granted to the petitioners. This was
having regard to Regulation 34 read with Appendix-VII which
is a complete code for grant of TDR. It was submitted that the
scheme of an additional 100% TDR on account of construction
of an amenity was in lieu of payment of compensation in an
acquisition proceeding.
3.4 The contention of the Mumbai Municipal Corporation, on the other
hand, was that the decision of this Court in Godrej & Boyce I,
was per incuriam as it ignored the effects of Regulation 33 of the
DCR. It was contended that if the compensation had been paid
partly or fully by any means, TDR could not be granted. That in
the case of the writ petitioners, the compensation in the form
of 10% or 25% additional TDR had already been granted and
the notification dated 16.11.2016 had removed the basis of the
decision of this Court in Godrej & Boyce I and there was now
a prohibition for issuance of TDR in favour of the persons who
had already been compensated. They further contended that
the impugned notification would apply even to cases pending
before the High Court and the Mumbai Municipal Corporation
as the judgment in Godrej & Boyce I had been nullified by the
838
[2024] 9 S.C.R.
Digital Supreme Court Reports
said notification. Further, there cannot be 100% TDR in respect
of the area of the amenity developed, and therefore, to cure
the defect, the notification dated 16.11.2016 was enforced and
that the DCR applicable on the date of deciding an application
for grant of development permission would govern the decision
on the application.
3.5 By way of reply, the writ petitioners contended before the High
Court that the notification dated 16.11.2016 was not a validating
Act. It was merely a delegated legislation which could not nullify
the judgment of the Apex Court. The right to claim TDR on the
development of the amenity vests in the owner the moment the
permission is granted by the Municipal Corporation to construct
the road/amenity. The judgment in Godrej & Boyce I is not per
incuriam and had been applied in other subsequent cases. The
object of giving a benefit under Regulation 34 is owing to lack
of financial capacity of the Municipal Corporation to construct
amenities by itself. Hence, the writ petitioners sought relief
under Regulation 34 of the DCR.
Consideration by the High Court:
4.
On a consideration of the rival submissions and taking note of
the fact that the contention of the Mumbai Municipal Corporation
was that the decision of this Court in Godrej & Boyce I was per
incuriam, the High Court considered the provisions of the Act and
the Regulations in extenso. The High Court noted that in almost all
the cases the action of surrendering the land and developing the
amenities had been completed by 17.06.2010 when Regulation 33
underwent an amendment. Therefore, on a consideration of the
erstwhile Regulation 33, the High Court observed that the same
was applicable to a case where the owner, including a lessee,
had surrendered the land or area required for road widening or
for construction of a new road proposed under the development
plan or those proposed under the Mumbai Municipal Corporation
Act, 1888 ("the Act of 1888" for short). Thus, it would apply to the
lands reserved in the development plan for construction of new roads
or for road widening and also to the lands which were within the
road-line as fixed under the Act of 1888 on which a road had not yet
been constructed. The said provision was not applicable to any other
amenity. It was further observed that a part of FSI could be used on
[2024] 9 S.C.R.
839
Kukreja Construction Company & Others v.
State of Maharashtra & Others
the plot remaining after such surrender and the balance FSI was to
be permitted to be utilised as TDR by issuing DRC. Such TDR was
to be governed by Regulation 34 as that is the provision for grant of
TDR. Thereafter, the road and land would stand transferred in the
city survey record in the name of the Mumbai Municipal Corporation
and vest in the Corporation.
4.1 Reference was then made to Regulation 34 and Appendix-VII,
which deals with TDR. The concept of TDR is that FSI available
in respect of one plot of land could be permitted to be utilised
on another plot of land. Para 6 of Appendix-VII dealt with a case
where the owner or lessee developed or constructed the amenity
on the surrendered land. In such a case, it was relatable to
clause (b) of sub-section (1) of Section 126 of the MRTP Act. The
said Act defines "amenity" under sub-section (2) of Section 2 of
the MRTP Act, as also in clause (7) of Regulation 3 of the DCR.
The High Court observed that Regulation 33(1) gave effect to
clause (b) of sub-section (1) of Section 126 of the MRTP Act.
That Para 5 of Appendix-VII pertains to the extent of TDR to
be granted against the surrender of a reserved land. Para 5 of
Appendix-VII is significant inasmuch as it deals with a case
where the owner or lessee develops or constructs an amenity on
the surrendered plot at his own cost subject to such stipulation
as may be prescribed by the Municipal Commissioner. That the
expression 'amenity' would include a road and the construction
or development of the road would have to be at the cost of
the owner. In such an event, under Para 6 of Appendix-VII,
the grant of additional FSI in the form DRC is equivalent to the
area of construction/development done by the owner as per
the stipulations prescribed by the Commissioner. This is like a
compensation granted for construction of an amenity as provided
in clause (b) of sub-section (1) of Section 126 of the Act.
4.2 The High Court again considered the argument of the Mumbai
Municipal Corporation made before this Court to the effect
that the value of the amenity developed or constructed by
the owner for which an additional TDR was sought must be
commensurate to the value of the amenity and not the area of
the amenity, which argument had been repelled by this Court
in Godrej & Boyce I. Thus, the High Court on considering the
judgment of this Court in Godrej & Boyce I observed that the
840
[2024] 9 S.C.R.
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additional TDR was required to be granted as per DCR and
in particular Para 6 of Appendix-VII equivalent to the area
constructed or developed and not on the basis of the value of
the development of the amenity. Hence, the High Court observed
that when a land which is reserved in the development plan
under the MRTP Act for a public purpose is surrendered by
the owner or lessee free of cost and the amenity is developed
thereon, on its surrender, the owner or lessee will be entitled
to FSI/TDR equivalent to the area of the surrendered land
and an additional TDR equivalent to the area of the amenity
developed or constructed by him.
4.3 While considering the arguments on behalf of the Mumbai
Municipal Corporation with regard to Regulation 33, the High
Court observed that the said Regulation provided that only a
part of the land FSI can be used on the remaining portion of
the land and the balance FSI had to be provided in the form
of TDR, as per Appendix-VII. That Appendix-VII read with
Regulation 34 dealt only with grant of TDR and the conditions
on which TDR can be granted. Even the TDR available in terms
of the Regulation 33(1) will be governed by Regulation 34
read with Appendix-VII. This is particularly so, as per Para 5
of Appendix-VII which applied to the grant of TDR in respect of
land covered by Regulation 33(1). That Para 6 of Appendix-VII
dealt with both situations, i.e., where the entire land held by the
owner or lessee was reserved or a part thereof was reserved
and the land was surrendered to the Corporation. Para 6 also
dealt with grant of an additional TDR for construction of an
amenity in terms of clause (b) of sub-section (1) of Section 126
of the MRTP Act. Regulation 33(1) dealt with FSI or TDR in
lieu of surrender of land required for roads whereas Para 6 of
Appendix-VII dealt with the grant of FSI or TDR in respect of the
road developed at the cost of the owner or the lessee. That this
Court in Godrej & Boyce I had considered Regulation 33 also.
4.4 Considering Regulation 33 which had undergone an amendment
on 17.06.2010, the High Court observed that prior to the
amendment, the said Regulation did not deal with FSI or TDR
in lieu of the construction of road. It dealt with only FSI or TDR
against the surrender of land reserved for road. However, after
amendment, when a road constructed as per the stipulation of
[2024] 9 S.C.R.
841
Kukreja Construction Company & Others v.
State of Maharashtra & Others
the Commissioner was handed over to the Commissioner free of
cost, an initial FSI equivalent to 25% of the area of construction
of road can be granted. A part of the FSI can be consumed
on the remaining land and the remaining part of the FSI will
be provided in the form of TDR. Therefore, the amendment to
Regulation 33(1) was applicable to reservation of road and not
for any other amenity. It was also clarified that the amendment
will not apply where the FSI granted in lieu of road had been
utilized and full occupation certificate had been granted prior
to 17.06.2010. Therefore, after 17.06.2010, in case of a land
reserved for road or road widening which was surrendered, if
the amenity being a road had been constructed by the owner
on the land surrendered, the additional FSI as provided in
clause (b) of sub-section (1) of Section 126 of the MRTP Act will
be 25% of the area of the construction of road. Hence, Para 6
of Appendix-VII to Regulation 34 would apply and the owner or
the lessee will not get TDR equivalent to entire area of the road
constructed by him but it will be confined to 25% of the area.
4.5 It was clarified that pursuant to notification dated 16.11.2016,
Para 4.2 of the Schedule to the notification would be the only
clause applicable to the grant of TDR against construction
of amenity and that from 16.11.2016, Para 6 of Appendix-VII
would not apply to the lands with amenity surrendered after
that date. In other words, Regulation 34 stands substituted by
the Schedule to the said notification. It was further observed
by the High Court that the said notification dated 16.11.2016
did not have a retrospective operation and it also did not take
away the basis of the decision in Godrej & Boyce I.
4.6 It was further clarified by the High Court that in the case of
Natwar Parikh & Co. Pvt. Ltd. vs. State of Maharashtra,
2014 SCC Online Bom 495 ("Natwar Parikh & Co. Pvt.
Ltd."), 25% TDR was granted to the petitioner therein in the
year 2006-2007. Subsequent to the decision of this Court in
Godrej & Boyce I, the petitioner therein had filed a petition. On
the facts of the case in Natwar Parikh & Co. Pvt. Ltd., it was
observed that there was no delay or laches. The said decision
of the High Court was sustained by this Court in Civil Appeal
No.1748 of 2015. This Court had also rejected the argument that
the judgment in Godrej & Boyce I should apply prospectively.
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4.7 Finally, it was held that additional FSI or TDR in terms of Para 6
of Appendix-VII as well as in terms of clause (1) of Regulation 33
becomes available on surrender of the land reserved with
or without amenity, as the case may be. After 17.06.2010, if
there is surrender of land reserved for road or road widening
on which road is constructed by the owner or lessee, the FSI
or TDR will be available in respect of amenity of road as per
Regulation 33(1) as amended. Therefore, the right to get FSI
or TDR accrues at the time of surrender.
4.8 Thereafter, the High Court went into the facts of each of the writ
petitions. Accordingly, the High Court passed the following order:
i)
We hold that the notification dated 16th November 2016 is
legal and valid. However, the said notification will not have
retrospective or retroactive application to a land reserved
under the development plan which is surrendered and
amenity is developed on the said land by the owner or
lessee thereof at his own cost prior to 16th November 2016.
Such cases will be governed by the Regulation 33(1) and
clauses (5) and 6 of Appendix VII. In case of a land reserved
for a road, either in development plan under the MRTP
Act or under the provisions of the said Act of 1888 and
surrender is made and road is developed on or after 17th
June 2010 but before 16th November 2016, the FSI or TDR
in lieu of amenity will be governed by the Regulation 33(1)
as amended on 17th June 2010.
ii)
We reject the argument that the decision of the Apex Court
in the case of Godrej & Boyce Manufacturing Company
Limited (supra) is per incuriam.
iii)
We hold that whether the writ jurisdiction of this Court
under Article 226 of the Constitution of India can be allowed
to be invoked on the basis of the said decision or not
depends upon the facts of each case and the conduct of
the petitioners especially the delay and laches on their part;
iv)
Writ Petition No.203 of 2014 is allowed. We direct the
third respondent-MMRDA to make recommendation
to the Mumbai Municipal Corporation for grant of 75%
additional FSI/TDR in terms of the aforesaid decision
of the Apex Court within a period of two months from
[2024] 9 S.C.R.
843
Kukreja Construction Company & Others v.
State of Maharashtra & Others
today. The Municipal Corporation shall examine the said
recommendation and if the petitioners are otherwise entitled
to TDR for amenity in terms of the aforesaid decision of the
Apex Court, necessary DRC shall be issued within a period
of two months from the date on which recommendation
of MMRDA is received.
v)
Writ Petition No.1898 of 2009 is rejected;
vi)
In Writ Petition No.2262 of 2010, the petitioners will be
entitled to additional 100% amenity FSI in terms of the
aforesaid decision of the Apex Court provided by producing
the documents, they satisfy the Mumbai Municipal
Corporation that work was actually carried out by them
for developing the recreation grounds and the ground;
vii) Writ Petition No.1823 of 2012 is rejected.
viii) Writ Petition No.839 of 2015 is rejected.
ix)
Writ Petition No.2871 of 2015 is rejected.
x)
Writ Petition No.2107 of 2016 is rejected.
xi)
Writ Petition No.2170 of 2016 is rejected.
xii) Writ Petition No.384 of 2017 is rejected.
xiii) Writ Petition No.541 of 2017 is rejected.
xiv) Writ Petition No.1860 of 2017 is partly allowed. We direct
the Mumbai Municipal Corporation to grant additional FSI in
respect of amenity of road as provided by Regulation 33(1)
as amended with effect from 17th June 2010.
xv) We make it clear that wherever we have held that the
petitioners are entitled to 100% amenity TDR in accordance
with clause 6 of Appendix VII in terms of the aforesaid
decision of the Apex Court, the Mumbai Municipal
Corporation will have to examine whether the petitioners
are otherwise eligible for grant of TDR."
4.9 Out of all the writ petitions disposed of, Writ Petition No.203
of 2014 was allowed and a direction was issued to the MMRDA
to make recommendations to Mumbai Municipal Corporation for
grant of 75% additional FSI/TDR in terms of the decision of this
Court in Godrej & Boyce I within two months from the said date
844
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of disposal. A further direction was issued to Mumbai Municipal
Corporation to consider the said recommendation and to pass
orders for issuance of DRC within a period of two months from
the date on which recommendation of MMRDA was received,
provided the writ petitioner was otherwise entitled to TDR for
amenity in terms of the judgment of this Court in Godrej & Boyce I.
4.10 Similarly, in Writ Petition No.2262 of 2010, additional FSI to
the extent of 100% on amenity was granted in terms of the
decision of this Court in Godrej & Boyce I provided the writ
petitioner therein produced the documents and satisfied the
Mumbai Municipal Corporation that work was actually carried
out for developing the recreation grounds and ground.
4.11 Writ Petition No.1860 of 2017 was partly allowed to the effect
that Mumbai Municipal Corporation ought to grant additional FSI
in respect of amenity of road as provided by Regulation 33(1)
as amended with effect from 17.06.2010. It was also observed
that the petitioners therein are entitled to 100% amenity TDR
in accordance with Para 6 of Appendix-VII in terms of the
aforesaid decision of this Court in Godrej & Boyce I and Mumbai
Municipal Corporation was to examine whether the petitioners
therein were otherwise eligible for grant of TDR.
4.12 With regard to those cases which were dismissed on the ground
of delay and laches, appeals have been filed by the private
petitioners therein. Appeal has been filed by Mumbai Municipal
Corporation against the order in writ petition No.203 of 2014
but no appeal has been filed against the order in Writ Petition
Nos.2262/2010 and 1860/2017.
There are two more impugned judgments in Writ Petition Nos.
2531/2009 and 411/2013 against which the Mumbai Municipal
Corporation has filed its appeals.
4.13 At this stage, it may be mentioned that where the writ petitions
were dismissed by the High Court on the ground of delay and
laches, there is no observation in those writ petitions denying
the benefit on merits. Insofar as in three cases where the writ
petitions were allowed, there is only one appeal filed by the
Mumbai Municipal Corporation as the orders in Writ Petition
No.2262 of 2010 and Writ Petition No.1860/2017 have been
accepted by it.
[2024] 9 S.C.R.
845
Kukreja Construction Company & Others v.
State of Maharashtra & Others
4.14 The details of the three cases in which appeals have been
filed by the Mumbai Municipal Corporation are noted as under:-
(i)
WP No.2531 of 2009 - Starwing Developers Private
Limited vs. Municipal Corporation of Greater Mumbai -
disposed of on 18.10.2019
(ii)
WP No.203 of 2014 - Apurva Natvar Parikh and Co.
Private Ltd. vs. State of Maharashtra and Others -
disposed of on 18.12.2018
(iii) WP No.411 of 2013 - Arvind Kashinath Dadarkar and
Others vs. Municipal Corporation of Greater Mumbai
and Others - disposed of on 20.10.2022.
Starwing Developers Private Limited:
5.
In Starwing Developers Private Limited vs. State of Maharashtra
("Starwing Developers Private Limited"), Writ Petition No.2531
of 2009 disposed by the High Court on 18.10.2019, unamended
Regulation 33 and Regulation 34 as they stood prior to 2010 were
considered in depth. It was observed that Regulation 34 as it
stood at the relevant time provided that in certain circumstances,
the development potential of a plot of land could be separated
from the land itself and could be made available to the owner
of the land in the form of TDR which would be subjected to
Regulation 34 and Appendix-VII. It was observed that Appendix-VII
titled "Regulations for the grant of Transferable Development
Rights (TDRs) to owners/developers and conditions for grant of
such rights" had a scheme for the award of TDR to the owner of
the plot of land which was reserved for public purpose and for
additional amenities in the form of FSI. As per the conditions set
out therein, such award would entitle the owner of the land to
FSI in the form of DRC which he could use for himself or transfer
to any other person. Para 5 of the Appendix provided that the
built- up area for the purposes of FSI credited in the form of
DRC shall be equal to the gross area of the reserved plot to be
surrendered and will proportionately increase or decrease according
to the permissible FSI of the zone where the TDR has originated.
Para 6 provided that when an owner or a lessee also developed
or constructed an amenity on the surrendered plot at his own cost,
subject to such stipulations which may be prescribed and to the
satisfaction thereof and hands over the developed or constructed
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amenity to the Commissioner or the appropriate authority free
of cost, he would be granted further DR in the form of FSI equivalent to
the area of construction/development done by him, utilisation of which
would be subject to the regulations contained in the said Appendix.
5.1 Contrasting Regulation 34 with Regulation 33, it was observed
that the latter pertained to additional FSI which may be allowed
to certain categories. Sub-regulation (1) as it stood at the
relevant time, provided that the Commissioner could permit the
additional FSI on 100% of the area required for road widening
or for construction of new roads under the development plan.
Such FSI so surrendered would be utilisable on the remainder
of the land up to a limit of 40% in respect of the plots situated in
Mumbai city and 80% in respect of the plots situated in suburbs
and extended suburbs. The balance FSI remaining thereafter
was allowed to be utilised as a development right in accordance
with the regulations governing TDRs. In the said case, it was
again contended on behalf of the Mumbai Municipal Corporation
that the petitioner therein having utilised 100% FSI for surrender
of land without cost on the same layout, was governed by
Regulation 33 and therefore, could not claim any additional
FSI/TDR for having constructed the amenities. This contention,
in fact, was squarely identical to those in the case of Apurva
Natwar Parikh & Co. Pvt. Ltd which case is discussed later.
5.2 It was pointed out that till the amendment on 17.06.2010,
there was no provision in Regulation 33 for claiming FSI for
construction of amenities and the same could be claimed only
in terms of Regulation 34 read with Para 6 of Appendix-VII. On
the other hand, it was contended by the Municipal Corporation
that Regulation 33 was not brought to the notice of this Court
in Godrej & Boyce I and that by notification dated 16.11.2016
the Regulation was amended to restrict the benefit of additional
TDR for development of amenities which was to cure a defect
in the legislation. The said contention was considered in light of
the amendment to Regulation 33 with effect from 17.06.2010,
by which a clause was added to sub-regulation (1) and it was
observed that the amendment to Regulation 33(1) was applicable
to roads and not to any other amenity. Moreover, this portion of
the amendment would not apply where the FSI granted in lieu
of road is utilised and full occupation certificate was granted
prior to 17.06.2010. Therefore, from 17.06.2010 in case of a
[2024] 9 S.C.R.
847
Kukreja Construction Company & Others v.
State of Maharashtra & Others
land reserved for road or road widening which was surrendered,
if the amenity of the road was constructed by the owner of the
land surrendered, the additional FSI as provided in clause (b) of
sub-section (1) of Section 126 will be 25% from the area of the
construction of the road. Therefore, for such amenity, in terms
of Para 6 of Appendix-VII, the owner or a lessee will not get
TDR equivalent to entire area of the road constructed by him.
It will remain confined to 25% of the area. It was observed that
Regulation 33(1) as amended on 17.06.2010 was not modified
by the impugned notification dated 16.11.2016.
Apurva Natwar Parikh & Co. Pvt. Ltd.:
6.
In the case of Apurva Natwar Parikh & Co. Pvt. Ltd. vs. State
of Maharashtra, Writ Petition No.203 of 2014 filed before the High
Court, the surrender of land was in the form of deed of conveyance
and handing over of possession was in February, 2007 and
within three years from the surrender i.e. February, 2010, the writ
petitioner/appellant herein requested an officer of MMRDA to
recommend to the Mumbai Municipal Corporation to issue 100%
additional TDR in respect of construction of amenity. In December,
2010, DRC of 25% of the amenity was granted. The balance 75%
had not been paid.