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TMI Blog2003 (4) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... 65 being sanctioned. A Town Planning Scheme being No. III of RWard came into being in the year 1961 upon a declaration made in this behalf by the Corporation. A draft Scheme was published on 17th July, 1976 wherein the plot as referred to hereinbefore was given a new number being original plot No. 433. With a view to give effect to the said Scheme and determining the rights and interests of the persons holding plots coming within the purview of the Scheme an Arbitrator in terms of Section 72 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter called and referred to for the sake of brevity 'the Act') was appointed. The Arbitrator in his award dated 30th October, 1987 while making a Town Planning Scheme allotted final plot No. 694 admeasuring 1240.90 sq. metres and final plot No. 713 admeasuring 2079 sq. metres aggregating to 3319.90 sq. metres in lieu of original plot No. 433. It is not in dispute that only 854 sq. metres of land out of original plot No. 433 be- longing to the appellant did not form part of the road. For acquisition of the said land as also for the structures standing thereupon a compensation of ₹ 4,97,567.20 apart from allotment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain decisions were taken to give benefit of the new regulations in favour of the appellants which, however, were not communicated. The appellants herein made a claim for grant of TDR under the Development Control Regulations, 1991 for the first time on 20th January, 1994. However, as no decision thereupon was taken, the Writ Petition was filed by the appellant on 31-8-1995. The High Court by an order dated 5.9.1995 directed the second respondent to decide the claim of the appellant made in terms of their application dated 20th June, 1994 and in obedience thereof an order dated 15-9-1995 was passed rejecting the said application on the following grounds: (a) Under the sanctioned Town Planning Scheme, the benefit of additional FSI under D.C. Rule No. 10(2) is not granted. (b) There is no provision in the Town Planning Regulations for granting TDR on plots falling in Town Planning Scheme. (c) The area going in Town Planning road and affected structures has been compensated by awarding compensation of ₹ 4,97,562.20 under the Town Planning Scheme. 5. An application for amendment of the Writ Petition challenging the legality of the said order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation where after, a 100 feet wide road in terms of the Scheme has been constructed and, thus, no relief can be granted to the appellants at this stage. (iv) In view of the final Scheme, grant of TDK in favour of the appellants has lost relevance as the parties are bound by the final Scheme. (v) The Government instructions whereupon reliance has been placed by the appellants are not applicable to the fact of the case. 7. M r. U.U. Lalit, the learned counsel appearing on behalf of the State of Maharashtra, would submit: (a) that the concept of grant of TDR under the 1967 Regulations was absolutely different from the 1991 Regulations. (b) As the Scheme referred to Rule 10(2) of the 1967 Regulations, the 1991 Regulations would not apply in the instant case. (c) The plea of the appellant for grant of TDR and FS1 although was at one point of time considered by the Corporation, as he did not agree to pay the betterment charges, and as admittedly no decision there upon had been taken, the appellant did not derive any enforceable right in relation thereto. The primal question which arises for consideration in this appeal is as to whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government is required to take into consideration such objections and suggestions and the Report of the Officer appointed in terms of Sub-section (2) thereof. Sub-section (4) of Section 31 provides that in fixing the date on which the final Development Plan shall come into operation, the State Government shall grant at least one month's time. By reason of Sub-section (6) the Development Plan becomes final and the same is binding on the planning authority. Section 39 of the Act reads thus: 39. Variation of town planning scheme by Development plan. Where a final Development plan contains proposals which are in variation, or modification of those made in a town planning scheme which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall vary such scheme suitably under section 92 to the extent necessary by the proposals made in the final Development Plan. Chapter IV of the Act provides for control of development and use of land included in Development Plans. Section 43 contemplates restrictions on development of land. Section 46 enjoins upon the planning authority to give due regard to the provisions of any draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters specified therein except clauses (iv) to (xi), (xiv), (xv) and (xvi) of Sub-section (3) of Section 72 all decisions of the Arbitrator shall be final and conclusive and binding on all parties including the planning authority. The decision of the Arbitrator under clauses (iv) to (xi), (xiv), (xv) and (xvi) of Subsection (3) of Section 72, however, shall be subject to an appeal before the Tribunal. Sub-Section (2) of Section 79 of the said Act provides that every decision of the Tribunal of Appeal shall be final and conclusive and binding on all persons and parties including the planning authority. 13. Section 86 empowers the State Government to grant sanction to final Scheme. Sub section (2)(b) of Section 86 reads thus: 86 (2). If the State Government sanctions such scheme, it shall state in the notification- (a) ........; (b) a date (which shall not be earlier than one month after the date of the publication of the notification) on which all the liabilities created by the scheme shall take effect and the final scheme shall come into force. 14. Section 88 provides for the effect of final Scheme and reads as under: 88. Effect of fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such land is prepared to release such area for road widening or for constructing new roads without claiming any compensation thereof. Such 100% of the area going under such road-widening or road construction shall be limited to 40% of the area of the plot measuring after re lease of the land required for such road widening or road construction. 16. The State Government in exercise of its power conferred upon it under Sub-Section (3) of Section 31 of the Act upon taking into consideration the report of the officer made in terms of Sub-Section (2) thereof made regulations known as Development Control Regulations for Greater Bombay, 1991. The said Regulations came into force with effect from 20th February, 1991. Sub-regulation (2) of Regulation 1 and the proviso appended thereto read thus: (2) Jurisdiction -These Regulations ap ply to building activity and development work in areas under the entire jurisdiction of the Municipal Corporation of Greater Bombay (hereinafter called the Corporation ). If there is a conflict between the requirements of these Regulations and those of any other rules or bye-laws, these Regulations shall prevail: Provided, however, that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment plan and for additional amenities deemed to be reservations provided in accordance with these Regulations, excepting in the case of an existing or retention user or any required compulsory or recreational open space, shall be eligible for the award of Transferable Development Rights (TDRs) in the form of Floor Space Index (FSI) to the extent and on the conditions set out below. Such award will entitle the owner of the land to FSI in the form of a Development Right Certificate (DRC) which he may use him self or transfer to any other person. (Emphasis Supplied) 5. The built-up area for the purpose of FSI credit in the form of a 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 from the TDR has originated. 6. When an owner of lessee also develops or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction and hands over the said developed/constructed amenity to the Commissioner/Appropriate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with the aforementioned Town Planning Scheme, leave no manner of doubt whatsoever that the appellants were not entitled to grant of TDR thereunder. The appellants, herein claimed right to have additional TDR having regard to: (a) the request made by them to the Bombay Municipal Corporation; an (b) in terms of communication of the State dated 2nd March, 1983. 20. IT is not in dispute that certain correspondences were exchanged by and between the appellant and respondent-Corporation as regard grant of additional FSI and TDR. From a perusal of the said correspondences, however, it would appear that the Corporation asked the petitioner to bear the betterment charges. A request was made by the architect of the appellant not to charge betterment charges on the additional FSI of the D.P. road land as the appellant was agreeing to forgo compensation in respect thereof and was further ready to bear the cost of construction of road and S.W. Drains and provisions of street lights etc. However, the Chief Engineer in his note-sheet dated 7.10.1991, whereupon the Director (Engineering Service and Projects) made an endorsement, observed: We should not consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the development permission. It shall be sufficient if the internal road with local specifications as required as per normal D.C. Regulations is provided for in the lay-out plan and the Corporation shall not insist while approving the lay-out plan for construction of the whole of the D.P. Road with its full width. This regulation permitted further development rights in lieu of D.R Road construction will apply only where on the prescription of the Commissioner, the entire road width shown in the Development Plan is required to be constructed or has been constructed in accordance with the stipulations prescribed by the Commissioner. From this, it is clear that if an individual owner constructs the road and wants the FSI for the construction also, he has to construct it in accordance with the stipulations by the Municipal Commissioner and to his satisfaction. Such stipulations may cover the matters in relation to or incidental to the construction of such road, such as construction of storrn water drain, if any, required for construction of such road, material to be used, and width of the road as shown in the Development plan. It is, therefore, evident that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not applicable in the instant case. The said instructions were issued keeping in view the new Regulations in respect of the areas where finally sanctioned Town Planning Scheme had come into effect without waiting for compliance in the proceedings of variation of the Town Planning Scheme Regulations. The directive of the State Government issued in terms of Section 154 of the 1966 Act dearly states that the development permission shall be strictly scrutinized in accordance with the sanctioned Development Control Regulations of Greater Bombay even in the area where finally sanctioned Town Planning Scheme pending the procedure of variation of the Scheme. 24. The said Scheme does not refer to grant of any TDR and it will bear repetition to state that the development permission was required to be strictly scrutinized in accordance with the sanctioned Development Control Regulations. A direction of the State Government in terms of Section 154 of the Act cannot supersede the statutory provisions contained either in the main enactment or the statutory regulations. The State of Maharashtra had absolutely no jurisdiction to issue any directive contrary to the statute or the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable: (iii) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (iv) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.(See S. Sundaram Pillai, etc. vs. V.R. Pattablraman reported in AIR 1985 SC 582) By reason of the proviso appended to Sub-regulation (2) of Regulation 1, certain provisions of the main enactment stood qualified. The proviso will, therefore, act as an exception to the main provision. Furthermore, it is not the case of any party that a revised Development Plan had not been validly sanctioned by the State. Once it is held that the 1991 Regulations would not be applicable in the case of the appellants having regard to the sanction of the Scheme prepared by the Arbitrator the question of grant of any benefit thereunder in favour of the appellants herein would not arise. It is well-settled in view of principle of 'Generalia specialiabus non d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein has given up the question of applicability of Rule 10(2) before the High Court. The High Court in its impugned judgment recorded we may add that under Rule 10(2) of the D.C. Rules of 1967, additional FSI in lieu of the compensation was provided in certain cases. There is, however, no dispute that petitioners were not eligible for grant of additional FSI under the said Rule 10(2) inasmuch as the original plot belonging to the petitioners or any part thereof did not form part of the final plots which were allotted to them nor were the plots allotted to the petitioners affected by the road. ( 29. ) A legal right to have an additional FSI or TDR can be claimed only in terms of a statue or statutory regulations and not otherwise. ( 30. ) BY reason of the provisions contained in Section 88 of the Act, original plot No. 433 vested in the State whereas the final plots Nos. 694 and 713 became the property of the appellants. Title on the land having been conferred under a statute, it is idle to contend that there is no automatic vesting. Reliance placed by Mr. Devarajan on State of Gujarat (supra) is misplaced. In that case the question which arose for consideration relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides for statutory re-adjustment of the rights of the owners of the original plots of land. When the scheme comes into force all rights in the original plots are extinguished and simultaneously therewith ownership springs in the reconstituted plots. There is no vesting of the original plots in the local authority nor transfer of the rights of the local authority in the reconstituted plots. A part or even the whole plot be- longing to an owner may go to from a reconstituted plot which may be allotted to another person, or may be appropriated to public purposes under the scheme. The source of the power to appropriate the whole or a part of the original plot in forming a reconstituted plot is statutory. It does not predicate ownership of the plot in the local authority, and no process - actual or notional of transfer is contemplated in that appropriation. The lands covered by the scheme are subjected by the Act to the power of the local authority to re-adjust titles, but no reconstituted plot vests at any stage in the local authority unless it is needed for a purpose of the authority. Even under clause (a) of Section 53 the vesting in a local authority of land required by it is on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs authorities passed order in accordance with law the same result would have followed as had been done on December 17, 1987. The Central Manual published by the Director of Publications, Customs and Central Excise contains directions for determining the actual date of removal of goods from warehouse in terms of Section 15(l)(b) of the Act. The functioning of private warehousing has been elaborated therein. Clause 10 of the Manual prescribes the type of buildings which can be approved as private ware houses under Section 58 of the Act. Para 15 of the Manual provides for purposes of Section 15(l)(b) of the Act, that if the goods are in private warehouse the date of cancellation of the licence of the private warehouse should be taken as the actual removal of the goods for the purposes of Section 15(l)(b) of the Act. Para 15 as already stated was followed in the appellant's own case on December 17, 1987 in releasing the goods. There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on January 28,1988 for debonding and clearance of goods. Merely because the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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