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TMI Blog2009 (2) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... mbrances) to the municipal authorities who may acquire the land by granting to the landowner Floor Space Index or Transferable Development Rights against the area of the surrendered land. The law further provides for additional Floor Space Index or Transferable Development Rights against the development or construction of amenities (for which the plot is shown reserved in the plan) by the owner at his own cost. 2. The appellants and the petitioners in this batch of appeals and writ petition had their plots of land shown in the Development Plan as reserved for roads. They voluntarily surrendered their lands. In addition, they constructed on their respective pieces of land the Development Plan roads at their own cost and as per the specifications stipulated in the relevant rules. There is no dispute between the parties in regard to the Floor Space Index or Transferable Development Rights granted to them for the surrendered pieces of land. But the parties are in serious controversy over the extent of Floor Space Index or Transferable Development Rights for the roads constructed on the surrendered lands at the owners' cost. The landowners claim that for constructing the roads th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Maharashtra Regional and Town Planning Act, 1966 (the Act) and the Development Control Regulations for Greater Bombay, 1991 (the Regulations). 5. Section 2 of the Act contains the definitions. Sub-section (2) defines Amenity very widely to cover vastly different public utilities from hospitals, secondary schools and colleges to roads, streets and open spaces etc.. Section 2 (2) of the Act is as under: (2) amenity means roads, streets, open spaces, parks recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences; 6. Sub-section 7 defines `Development' and sub-section 9A defines `Development Right' as follows: 9A. Development Right means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilizable either on the remainder o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d recreational. It would also contain proposals for designation of lands for many different kinds of public purposes enumerated in clauses (b) to (l) of the section. As per clause (m) of the section the Development Plan would also provide for the provisions for grant of permission for controlling and regulating the use and development of land within the jurisdiction of a local authority and the matters connected therewith. 13. Section 22A enumerates what is meant by modification of a substantial nature in the Development Plan. Sections 23 to 31 lay down the procedure for making Development Plan, including Development Control Regulations by the Planning Authority after inviting objections and submitting draft plans to the State Government. Section 31 empowers the State Government to sanction the draft Development Plan submitted by the Planning Authority. Section 37 deals with modification of final Development Plan. Chapter VII of the Act deals with Land Acquisition and section 125 provides that any land required, reserved or designated in a Regional Plan, Development Plan or Town Planning Scheme for a public purpose or purposes including plans for any area of comprehensive develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity to carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act. Section 158 contains the rule making powers and authorizes the State Government to make rules to carry out all or any of the purposes of the Act. Section 159 provides that any Regional Board, Planning Authority or Development Authority may with the previous approval of the State Government make regulations consistent with the Act and the rules made thereunder. 15. The Municipal Corporation of Greater Bombay which is a Planning Authority under section 2(19) of the Act prepared a revised Development Plan and on April 30, 1985 submitted the Revised Draft Building bye-laws and Development Control Rules to the State Government as required under section 30(1) of the Act. The Development Control Rules, after being subjected to the procedure prescribed by law finally received the sanction of the State Government on March 25, 1991 and came into force from that date under the name, `The Development Control Regulations for Greater Bombay'. 16. Before proceeding to examine the relevant provisions of the Regulations it may be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is much restricted than the one given under the Act and under the Regulations `sport complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals' are not expressly included in the definition of amenity. 19. `Road' indeed is common to the definitions both under the Act and the Regulations and in clause (76) of regulation 3 it is defined in the widest possible terms. Regulation 3 (42) defines Floor Space Index as follows:- (42) Floor space index (FSI) means the quotient of the ratio of the combined gross floor area of all floors, excepting areas specifically exempted under these Regulations to the total area of the plot, viz.: Total covered area on all floors Floor Space Index (FSI) =---------------------------------------- Plot area 20. Regulation 32 deals with Floor Space Indices and Tenement Density and provides for different Floor Space Indices for different areas in Greater Bombay. Regulation 33 provides for Additional Floor Space Index that may be allowed to certain categories. Regulation 34 contains the concept of Transferable Development Rights and it rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered free of cost as stipulated in Regulation 5 in this Appendix, and after completion of the development or construction as in Regulation in this Appendix if he undertakes the same. 3. Development Rights (DRs) will be granted to an owner or a lessee only for reserved lands which are retainable/non-retainable under the Urban Land (Ceiling and Regulations) Act, 1976, and in respect of all other reserved lands to which the provisions of the aforesaid Act do not apply, and on production of a certificate to this effect from the Competent Authority under that Act before a Development Right is granted. In the case of non-retainable lands, the grant of Development Rights shall be to such extent and subject to such conditions as Government may specify. Development Rights (DRs) are available only in cases where development of a reservation has not been implemented i.e. TDRs will be available only for prospective development of reservations. 4. Development Rights Certificates (DRCs) will be issued by the Commissioner himself. They will state, in figures and in words, the FSI credit in square meters of the built- up area to which the owner or lessee of the said reserved plot is entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dix VII referred to in regulation 34 provided for the extent of FSI or DRT admissible under the two heads. Paragraph 5 of Appendix VII that related to the surrender of the land provided for FSI credit in the form of a development right certificate `equal to the gross area of the reserved plot'. Paragraph 6 of the Appendix VII that dealt with the additional DR for construction of the amenity for which the surrendered plot was designated in the Development Plan at the owner's cost provided for a further DR in the form of FSI `equivalent to the area of the construction/ development' made on the surrendered land. Mr. Desai contended that paragraph 6 of Appendix VII used the words `equivalent to the area of construction/development' which was capable of only one meaning, that is to say, the additional DR would be the same in area as the amenity constructed/developed on the surrendered land. Mr. Desai further pointed out that no provision of Appendix VII, much less paragraph 6 of the Appendix made any distinction between the different amenities as defined under the Act or the Regulations and there was not the slightest hint or suggestion for grant of additional TDR on a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional Development Right for construction of DP roads was then increased from 15% to 25% of the area of the road by circular dated April 5, 2003, the relevant parts of which are as follows: Under the circumstances, the quantum of addl. TDR for construction of roads/setback lands to be granted to owners/developer of DP Roads/setback lands is being enhanced from 15% to 25% for all prospective cases which are not covered under litigation And In cases where owners have filed writ petition which is pending in the Court, the additional TDR will be granted as per the orders of the Court. However in case these owners are agreeable to accept 25% additional TDR, the same can be considered after withdrawal of the Writ Petition filed by them in the Court 27. Mr. Desai submitted that in Pune Municipal Corporation and Anr. V. Promoters and Builders Association Anr. (2004) 10 SCC 796 this Court held that the Development Control Rules framed under the Maharashtra Regional and Town Planning Act, 1966 had statutory force. On the other hand the circulars issued by the Municipal Commissioner were simply executive instructions. The circulars, therefore, could not override or super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troducing a graded scheme eliminated the subjective element and closed any possibility of arbitrary and discriminatory action on the part of the authority. Coming back to the basic argument that under the law the grant of additional TDR could only be commensurate to the value of the amenity constructed/developed on the surrendered land and not necessarily equal in area of the construction/development Mr. Naphade submitted that paragraph 6 of Appendix VII, unlike paragraph 5 didn't use the words `equal to the gross area of the reserved plot' or `equal in area'. Instead, paragraph 6 used the words `equivalent to the area of construction/development'. He further submitted that paragraph 6 of Appendix VII to the Regulations must be read with Section 126(1) (b), the relevant provision in the parent Act and paragraph 6 of Appendix VII must be controlled and must take its meaning from the provision of that section. Section 126(1) (b) used the words `against the area of the land surrendered' and `against the development or construction of amenity on the surrendered land' 29. Seen thus, Mr. Naphade argued, it would be clear that the law provided for the grant of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total are of the plot, viz., floor space index is equal to the total covered area of all the floors divided by the plot area. Therefore the total expenditure incurred in the construction or development of amenity in the surrendered plot assumes importance while determining the entitlement of the owner or the developer for further DR in the form of FSI on that count under Clause 6 of Appendix VII. 19. As rightly submitted on behalf of the respondents, the differentiation in the percentage is directly linked to the value of the area of the construction or the development carried out in relation to the amenities in the surrendered plot. Certainly the valuation of the construction of a road in a specified area cannot be equated with that of the value of construction in relation to a building occupying the same measure of area of land. There is bound to be a substantial difference between the value of the road built in an area of land and that of the building constructed in same measure of area of land. In case of road, the construction lies merely on the carpet area of the land. In case of building, the construction is not only on the carpet area of the land but it goes vertically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich `equivalent' as an adjective is defined as equal in value, force, measure, volume, power, and effect or having equal or corresponding import, meaning or significance; alike, identical. . 37. Chambers 21st Dictionary defines equivalent as equal in value, power or meaning . 38. Concise Oxford English Dictionary defines the word as an adjective as Equal in value, amount, function, meaning, etc. (equivalent to) having the same or a similar effect as . 39. New Webster's Dictionary defines equivalent as Equal in value, measure, force, effect, or significance; corresponding in position or function; 40. Webster's Third New International Dictionary defines it as an adjective as 1: equal in force or amount equal in area or volume but not admitting of superposition ( a square ~ to a triangle) 2 a: like in signification or import 3 a: equal in value : COMPENSATIVE. 41. WORDS AND PHRASES Permanent Edition Vol.15 at p.157 defines `equivalent' as follows: To be `equivalent to' means to be equal in value, to be the same, corresponding to and to be worth. Desoe v. Desoe, 23 N. E. 2d 82, 83, 304 Mass. 231 . The word equivalent has been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant for the present, nevertheless we would like to point it out as it may help the concerned authorities in future. It is to be noted that both section 126 (1)(b) of the Act and paragraph 6 of Appendix VII to the Regulations provide for additional FSI or TDR for construction or development of amenity which term is defined both in the Act and the Regulations. But in the circular dated April 9, 1996 100% FSI (built up area) is reserved for public utilities none of which is expressly mentioned in the definition of amenity in clause 3(7) of the Regulations. Furthermore `Municipal Transport Garage', `Fire Station', 'Auditorium', 'Electric Crematorium', `Municipal Workshop', `Town Duty Office' and `Office Building' are not even covered by the definition of `amenity' under section 2 (2) of the Act. It is highly debatable if those public utilities can be introduced through the circular as `amenities' within the meaning of the Act or the Regulations. 46. Apart from the contention raised by Mr.Naphade, Mr. Shishodia Senior Advocate appearing for the Municipal Corporation, Greater Mumbai resisted the claims of the appellants and the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(2) of the Act or regulation 2(7) of the Regulations is not left with many options and he does not have the same bargaining position as the municipal authority. Therefore, surrender of the land in terms of clause (b) of section 126(1) of the Act cannot be subjected to any further conditions than those already provided for in the statutory provisions. It is of course open to the legislature to add to the conditions provided for in the statute (or for that matter to do away with certain conditions that might be in existence) But it certainly can not be left in the hands of the executive to impose conditions in addition to those in the statutes for accepting the offer to surrender the designated land. 48. Mr. Shishodia next submitted that the measure of 15% (later raised to 25%) of the area of the road constructed for grant of TDR by the impugned circulars of April 9, 1996, April 5, 2003 and May 5, 2004 was decided in meetings in which Mr. Nayan M.Shah, constituted attorney of the appellants was also present as the representative of the industry. Hence, it was no longer open to the appellants and the petitioners to question those circulars. We are once again unable to acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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