Maharashtra Regional and Town Planning Act, 1966 : s. 126 – Acquisition of land required for public purposes specified in the plan – Appellant was the owner of the plot in second Development Plan for Greater Mumbai, reserved for the purpose of ‘Recreation Ground’– Application by the appellant no. 1 to surrender land reserved for recreation purpose and for the grant of Development Rights Certificate-DRC – Intention to develop the land sought to be surrendered expressed – Proposal accepted, appellant undertook the development work and handed over the possession of the land – DRC issued to appellant no. 1, however, no additional TDR issued – Claim for the grant of Additional TDR by the appellant, rejected by corporation on the basis of circular dated 09/04/1996 which restricted the grant of additional TDR in certain circumstances – Since the circular was under challenge before this Court, appellant no. 1 awaited the outcome – Later on, the said circular set aside by this Court in 2009 in Godrej and Boyce Manufacturing Company Limited’s case, case of the appellant no. 1 but in respect of some other property – Another request made for grant of Additional TDR in Nov 2009, which was declined in Aug 2010 – Writ petition thereagainst, dismissed by the High Court, on the ground that there was abandonment of claim by the appellants – On appeal, held: Law of abandonment was based upon the maxim invito beneficium non datur which meant that the law conferred upon a man no rights or benefits which he does not desire – However, during the period from 1996 to 2009, the right to claim additional TDR was in suspended form making the appellant to necessarily wait till it was decided – It is clearly unjustified and unacceptable to say that the wait of the appellants during this period could tantamount to abandonment – As regards, the grant of Additional TDR, all activities undertaken by appellant No.1 through their Architects till the handing over of possession of the land were not towards the development of amenity and for the grant of Additional TDR – All those works were undertaken as part of the effort to make the Corporation accept the surrender of land and to grant TDR – Thus, the High Court was right in recording a finding of fact that the appellants did not develop the amenity so as to be entitled to additional TDR – Finding of fact made by the High Court in this regard is upheld – Development Control Regulations for Greater Mumbai, 1991 – Reg. 34.
Words and Phrases: “Amenity” and “development” – Meaning of, in the context of the Maharashtra Regional and Town Planning Act, 1966.
Dismissing the appeal, the Court
HELD: 1.1. The law of abandonment is based upon the maxim invito beneficium non datur. It means that the law confers upon a man no rights or benefits which he does not desire. [Para 15][69-B]
1.2 What was cited by the Municipal Corporation in their order of rejection dated 27.11.1998 as an impediment for the grant of additional TDR was the subject matter of challenge in the first round. It was made by the very appellant No.1, though in respect of another property. If the said decision in the first round had gone against appellant No.1, the rejection of the claim of the appellants for additional TDR on the basis of “prevailing policy” would have become final and unquestionable. [Para 17][69-F-G]
1.3 During the period from 1996 to 2009, the right to claim additional TDR was in suspended animation. Thus, the appellants had to necessarily wait till the cloud over their right got cleared. To say that the wait of the appellants during the period of this cloudy weather, tantamount to abandonment, is clearly unjustified and unacceptable. Therefore, the finding recorded by the High Court that there was abandonment of claim by the appellants, is not in tune with the law or the facts of the instant case and thus, is answered in favour of the appellants. [Para 18][69-G-H; 70-AB]
2.1 The word “amenity” as defined in s. 2(2) means several things including “recreation ground.” The word “development” includes under Section 2(7), mining or other operations in or over the land or the making of any material change in any building or land and reclamation, redevelopment and layout and sub-division of any land. [Para 38][76-D-E]
2.2 To be precise, all activities undertaken by appellant No.1 through their Architects till the handing over of possession of the land were not towards the development of amenity and for the grant of Additional TDR. All those works were undertaken as part of the effort to make the Corporation accept the surrender of land and to grant TDR. [Para 41][83-B-C]
2.3 It is only after the entry of Mayfair Housing, (of which appellant no.2 is a partner) into the picture, first with a letter of request dated 20.11.1996 to the Corporation to develop and maintain the Recreation Ground and then with the execution of the Power of Attorney by appellant No.1 on 24.12.1996 that the idea of developing an amenity and seeking additional TDR had cropped up. But unfortunately, the Corporation made it clear to Mayfair Housing represented by appellant No.2 that he would not be entitled to Additional TDR, for the development of Recreation Ground. In the letter dated 23.01.1998 it was made clear to Mayfair Housing that no TDR would be given to them. [Para 42][83-C-E]
2.4 When Mayfair Housing sent a letter dated 20.11.1996 to the Corporation seeking permission to develop and maintain the RG, they had nothing to do with the surrendered land. Therefore, they were not entitled either to TDR or to additional TDR. Realising this difficulty, they appear to have got 2 deeds of PoA from appellant No.1 so as to piggy ride on appellant No.1. In fact, the first PoA was redundant since by the time it was executed, appellant No.1 had already obtained DRC for TDR. Yet, the first PoA was towards TDR and the second PoA was for additional TDR. [Para 43][83-E-F]
2.5 Even an independent analysis of the correspondence between the parties show that no amenity was developed as required by law, by appellant No.1, to be entitled to Additional TDR. [Para 44][83-G]
2.6 Drawing the attention to the photographs of the Recreation Ground as it exists, it was submitted by the counsel for the appellants that what was once a barren land, could not have become what it is but for the activities undertaken by the appellants. Therefore, his submission was that if this is not construed as development of amenity, nothing else can be construed so. [Para 45][84-A-B]
2.7 Unfortunately for the appellants, whatever they had done through their Architects up to the date of handing over possession and getting the DRC, was not projected by them as the development of amenity. If all those activities up to the date of handing over possession constituted development of amenity, there was no necessity for appellant No.1 to give PoA to appellant No.2 to undertake the activity of development of amenity and to seek Additional TDR. If the work of development of amenity and the lodging of a claim for additional TDR had been undertaken only after Mayfair Housing entered into the picture, then the appellants became bound by the condition laid down by the Corporation that appellant No.2 will not be entitled to Additional TDR. The High Court was right in recording a finding of fact that the appellants did not develop the amenity so as to be entitled to additional TDR. Once the finding of fact made by the High Court in this regard is upheld, the appeal should automatically meet with the fate that it deserves. [Para 46, 47][84-B-D; E]
Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra and Others (2009) 5 SCC 24 : [2009] 1 SCR 1016; P. Dasa Muni Reddy v. P. Appa Rao (1974) 2 SCC 725 : [1975] 2 SCR 32 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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