bombay high court

Bombay High Court: The Division Bench of G.S. Patel and Kamal Khata, JJ. directed Municipal Corporation of Greater Mumbai (‘MCGM’) to issue necessary Development Rights Certificate (‘DRC’) in favour of Eversmile Construction Company regarding land upon which, parts of the ramp and Sahar Elevated Road for approach, ingress and egress to Airport Terminal Building was constructed.

An affidavit filed on behalf of the Mumbai Metropolitan Region Development Authority (‘MMRDA’) conveyed that it was not the planning authority for the portion of Sahar Elevated Road built on the land belonging to Eversmile Construction Company. The Court perused its order passed on 31-08-2023, specifically the part whereby the Court suggested Municipal Corporation of Greater Mumbai (‘MCGM’) or MMRDA to compensate Eversmile Construction Company by issuing Transferable Development Rights (‘TDR’) for taking over the subject property and constructing the road.

While MMRDA submitted that it was not adverse to make a recommendation, the Court expressed its concern that “we do not see how this can be compelled by a mandamus if MMRDA says it does not have the necessary jurisdiction or that this property is not within its command area.”

It further said that the holder of a property could not be denied a legitimate and recognized form of compensation for taking over a part of such property for public use, and that there had to be either compensation under the Land Acquisition Act or in kind by additional FSI, transferable development rights, etc.

The Court accepted the reference to Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356 precisely highlighting the perils of the public authorities persisting in each disclaiming jurisdictional authority. Cautioned by the fact that the writ of mandamus could not be issued against all the respondents, the Court confined the mandamus to MCGM, an authority which issues DRC. The Court reasoned that “even on the matter of issuance of a DRC, and even if the property had been within its command area, at best MMRDA would have made a recommendation or issued a No Objection Certificate (“NOC”). It would not itself have issued a DRC.”

Mindful of importance of compensation for Eversmile Construction Company, the Court regarded the matter as a ‘much wider public interest’ since in case of otherwise, even MMRDA officials would not be able to get to the airport.

The Court directed MCGM to issue the necessary DRC after completion of due formalities within 4 weeks.

[Eversmile Construction Company v. Municipal Corporation of Greater Mumbai, Writ Petition (L) No. 20223 of 2023, Order dated 13-09-2023]

Advocates who appeared in this case :

For Petitioners: Senior Advocate Pravin Samdani, Advocate Viraj Parikh, Advocate Samit Shukla, Advocate Shivani Khanwilkar, Advocate Mustafa Nulwab; DSK Legal

For Respondents: Senior Advocate GS Hegde, Advocate Pinky Bhansali, Advocate Shoma Maitra, Advocate Nipeksh Jain; Wadia Ghandy & Co., Additional Government Pleader ABhay L. Patki

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