Bombay High Court: The instant writ petition was filed by the petitioner under Article 226 of the Constitution, seeking a direction to the respondent to follow the due process of law in taking over petitioner’s land (“disputed land”), by following the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (“2013 Act”). The Division Bench of G.S. Kulkarni and Arun R. Pedneker*, JJ., noted that the respondent had proposed to compensate the petitioner for the land through Transferable Development Rights (“TDR”), for which the existence of an agreement between the parties is mandated under the provisions of the Maharashtra Regional and Town Planning Act, 1996 (“MRTP”). The Court held that the respondent could not acquire the disputed land through a unilateral proposal of TDR, but it must be done mutually, and directed the respondents to resort to appropriate procedure in law to acquire the disputed land, until which they should not disturb the peaceful possession of the petitioner in any manner whatsoever, except if consented to by the petitioner.
Background
The petitioner was a Public Charitable Trust, registered with the Office of the Charity Commissioner, and was the owner of the disputed land. Respondent 5- the Archaeological Survey of India (“ASI”) has claimed the ownership of the caves and land adjacent to the disputed land. The petitioner contended that its land was adjacent to the land under two caves, which had been declared as vested in the Government of India. The petitioner further contended that in 2001, a City Civil Court order had injuncted the respondent from carrying out any work or disturbing the peaceful possession and enjoyment of the disputed land. Furthermore, the petitioner contended that the Additional Collector had certified the petitioner as the owner of the disputed land, and that the land was reserved for a garden or a park, for which the Office of the Chief Engineer (Development Plan) had requested the petitioner to hand over the disputed land, in lieu of TDR.
The petitioner, through a letter had submitted before the Executive Engineer in February 2024, that it being a charitable organisation could not have utilised the TDR which was proposed to be offered in lieu of handing over the disputed land. The petitioner indicated their willingness to hand over the land in exchange for “monetary compensation” in accordance with law. This request was rejected by Respondent 1, who proposed that it was ready to take over the disputed land in lieu of TDR benefit only, and that in view of larger public interest, the petitioner was requested to hand over the disputed land so that it could be developed for public purposes. Aggrieved by the response of Respondent 1, the petitioner had filed the instant petition.
Issue
Whether a land reserved for public purpose under the MRTP, can be acquired by granting TDR or Floor Space Index (“FSI”) as compensation, and whether the 2013 Act needs to be necessarily followed for the acquisition of reserved land, if the landowner refuses to accept TDR or FSI as compensation?
Court’s analysis and judgment
The Court noted that Section 125 of the MRTP provides that any land required, reserved, or designated in the regional plan, development plan or town planning scheme for a public purpose shall be deemed to be the land needed for public purpose within the meaning of the 2013 Act. The Court also noted Section 126 of the MRTP, that provides that after publication of the draft regional plan or a development plan or any other plan or town planning scheme, any land required or reserved for a public purpose, could be acquired:
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By agreement by paying an amount agreed to; or
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In lieu of any such amount, by granting the landowner the FSI or TDR on the surrendered land; or
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By making an application to the State Government for acquiring the land under the 2013 Act.
The Court emphasised in respect of Section 126 of the MRTP, that the TDR or FSI can only be granted in lieu of an amount agreed, and that there must be a basic agreement between the parties. In the absence of an agreement, the Court held that the disputed land could only be acquired under the provisions of the 2013 Act in the instant case, for public purposes.
The Court rejected the respondents’ contention that the petitioner must accept TDR only and they could not claim monetary compensation; the Court found this contention patently misconceived with respect to Section 126 of the MRTP.
The Court referred to Shree Vinayak Builders & Developers v. State of Maharashtra, 2022 SCC OnLine Bom 1562, wherein, a Full Bench of the instant Court had emphasised that the acquisition of land reserved for public purpose under Section 126 of the MRTP cannot be by any unilateral proposal of the acquiring authority to acquire the land with an offer of compensation or FSI/TDR. The modes of acquisition of land provided under Section 126 can be resorted to only when there is a mutual consensus between the parties.
Therefore, the Court in the instant case held that, if the Municipal Corporation sought to acquire the disputed land, the same could be done under Section 126(1)(c) of the MRTP, by resorting to the procedure laid down in the 2013 Act, in absence of an agreement to accept TDR/FSI.
Further holding, the Court stated that until the Municipal Corporation resorted to appropriate procedure in law to acquire the disputed land, it should not disturb the peaceful possession of the petitioner in any manner whatsoever, except if consented to by the petitioner.
[Our Lady of Immaculate Conception Church v. Municipal Corpn., Greater Mumbai, 2024 SCC OnLine Bom 1905, decided on 21-06-2024]
*Judgment authored by: Justice Arun R. Pedneker
Advocates who appeared in this case:
For the Petitioner: Dhananjay Deshmukh, Advocate
For the Respondents: Pooja Patil, AGP; Priyanka Sonawane, S.K. Sonawane, Ashutosh Misra, Advocates
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