Kukreja Construction Company & Others v. State of Maharashtra & Others

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Godrej & Boyce Manufacturing Co. Ltd. (supra) which is of 6th February 2009, the petitioners did not apply for grant of additional FSI/ TDR in respect of amenity surrendered in the year 2004 and for the first time by a letter dated 17th February 2012, the petitioners applied for grant of additional TDR. The proposal for grant of additional TDR was rejected on 30th January 2015. Thereafter the petition was filed. Thus, after surrendering the reserved land on 29th July 2004, the petitioners never claimed TDR in respect of the amenity developed by them till 17th February 2012. The application was made three years after the decision of the Apex Court in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra). Considering this conduct of the petitioners which virtually amounts to abandonment of their right, no relief can be granted to the petitioners in this petition.

(v) WP No.2107 of 2016 – M/s Byramjee Jeejeebhoy Pvt. Ltd. and Another vs. The Municipal Corporation of Greater Mumbai and Others.–

40. In Writ Petition No.2107/2016, according to the case of the petitioners, they constructed DP Road. They surrendered the reserved land on 5th June

2007. Their Architects/ Licensed Surveyors made an application on 4th September 2009 for grant of 100% additional TDR in the light of the decision of the Apex Court. A legal notice was issued by their advocate on 7th December 2009. Thereafter, the petitioners took no steps and after a gap of 6½ years on 21st July 2016, the petitioners called upon the said Corporation to grant additional FSI/TDR. The correspondence made by the petitioners in the year 2009 was based on the decision of the Apex Court in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra). The petitioners sought to rely upon the subsequent decision of the Apex Court dated 5th May 2016 in the case of Municipal Corporation

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of Greater Mumbai v. Natvar Parikh & Co. Pvt. Ltd. (Civil Appeal No.1479/2015) which followed the decision of the Apex Court in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra). There is no explanation offered in the petition as to why there was complete inaction on the part of the petitioners from 2009 to 2016. Therefore, considering this conduct of the petitioners, they are dis-entitled to any relief.

(vi) WP No.2170 of 2016 – Girdharlal D. Rughani Alia Thakkar H.U.F. and Another vs. The State of Maharashtra and Others.–

41. In Writ Petition No.2170/2016, the case of the petitioners is that on 20th October 1995 they handed over the possession of their land reserved for DP Road to the said Corporation. They claimed that after completing the construction of DP Road on 20th October 1994, a completion certificate was granted by the Municipal Corporation. It is not the case of the petitioners that thereafter they applied for grant of additional 100% TDR in respect of the amenity developed. Only on 5th August 2014 (i.e. ten years after developing the amenity) that the petitioners applied for grant of additional TDR through their Architect. For a period of 10 years, the petitioners never claimed 100% additional TDR in respect of the amenity. Even thereafter, no action is taken and the present petition is filed in July 2016. Considering the conduct of the petitioners, they are not entitled to any relief.

(vii) WP No.384 of 2017 – Oberoi Realty Limited and Another vs. Municipal Corporation of Greater Mumbai and Others.–

42. In Writ Petition No.384/2017, the case of the petitioners is that between 2004 and 2008, they developed seven DP Roads and handed over the possession thereof to the said Corporation. However, they made representation for the first time on 10th June

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2016 claiming additional TDR in respect of amenity developed. The representation was rejected on 30th November 2016 by the said Corporation. Thus, even after the decision in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra), the petitioners did not apply for grant of additional TDR. The petitioners sought additional TDR after lapse of eight years and more. Therefore, for a period of eight years or more, the petitioners never claimed additional TDR. Hence, considering the delay and laches on the part of the petitioners, no relief can be granted.

(viii) WP No.541 of 2017 – Nanabhoy Jeejeebhoy Pvt. Ltd. and Another vs. The State of Maharashtra and Others. –

43. In Writ Petition No.541/2017, the case of the petitioners is that there were eleven reservations on their property for DP Roads. The petitioners have referred to the said reservations as DP Road-I to DP Road-XI. According to the case of the petitioners, after developing the amenities, the possession of DP Roads was handed over to the said Corporation on 13th April 2004, 20th March 2001, 27th March 2002, 6th September 2001, 13th February 2006, 27th October 1997, 27th October 1997, 29th October 1997, 21st December 2002, 22nd May 2002 and 14th August 2002 respectively. For the first time additional TDR was claimed by the petitioners by making application on 11th July 2014. Thus, in all cases except one, the possession was handed over after the development of DP Roads before the year 2003. In some cases, the possession of DP Road was handed over in the year 1997. In one case, the possession was handed over in the year 2006. Thus, after lapse of several years after handing over possession of DP Roads i.e. in 2014, belatedly a request was made for grant of additional TDR. The request was made after a gap of about 8 to 13 years for which there is no explanation. Thus, the petitioners by their conduct

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have virtually abandoned their claim for additional FSI/TDR in respect of amenity.” In all these cases, we find that the writ petitioners/appellants herein had surrendered the reserved land and had also been granted 25% TDR and a representation for additional TDR was made after the judgment of this Court in Godrej & Boyce I and in some cases, the representation was made early but in other cases, the representations were made after some time. It is also noted in Civil Appeal No.1748 of 2015, in the case of Natwar Parikh, this Court had stated that the decision in Godrej & Boyce I could not be revisited inasmuch as the Mumbai Municipal Corporation could not seek to reargue the matter. Also, the facts in each case on the questions of delay was to be considered as observed by this Court. The issue of abandonment of claim has also been considered and negatived in the judgment of this Court in Godrej & Boyce II. We have referred to the decisions of this Court where the question of delay and laches would not arise in matters such as the present cases. When relief in the nature of compensation is sought, as in the instant case, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made. In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution. As rightly contended by the learned senior counsel for the writ petitioners/ appellants herein, the respondent-Mumbai Municipal Corporation has not established that owing to a short delay even if it has occurred in any of these cases owing to uncertainty in law, the Corporation has been prejudiced by the same or that the third-party rights had been created which could not be disturbed owing to delay or laches. The calculation of period of delay in the table submitted by learned senior counsel for the Mumbai Municipal Corporation is not acceptable in view of our discussion above. The decisions referred to by us above would clearly indicate that neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply in these cases. Rather the delay has occurred on the part of the Mumbai Municipal Corporation in complying with the Regulations insofar as these appellants are concerned. 18.1 In view of the aforesaid discussion, we hold that the Bombay High Court was not right in dismissing the writ petitions on

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the ground of delay and laches. Hence, those portions of the impugned order of the High Court are set aside.

19Copy pinpoint19. We also do not find any merit in the three appeals filed by the Mumbai Municipal Corporation. Having regard to the earlier judgments of this Court, we find that the reasoning of the High Court on merits in the three impugned decisions discussed above is just and proper which would not call for any interference by this Court.

20Copy pinpoint20. Consequently, the civil appeals filed by the writ petitioners/appellants herein are allowed as under: (i) Those portions of the impugned order dated 18.12.2018 by which the writ petitions were dismissed on the ground of delay and laches are set aside and the respondent Mumbai Municipal Corporation is directed to consider the case of those writ petitioners/appellants herein in light of the judgments of this Court in Godrej & Boyce I and release the balance FSI/ TDR to the appellants. (ii) However, in the case of appellant-Kukreja Construction company and others, the Mumbai Municipal Corporation is directed to consider the nature of the amenities constructed and thereafter to consider their case for additional FSI/TDR. (iii) The said exercise shall be carried out as expeditiously as possible and within a period of three months from today. 20.1 The Civil Appeals filed by the Mumbai Municipal Corporation are dismissed and the cases of the respondents in those civil appeals shall be considered in terms of the judgments of this Court in Godrej & Boyce I and the balance FSI/TDR shall be released to the respondents therein within a period of three months from today. Parties to bear their respective costs.

Result of the Case: A ppeals filed by the appellants are allowed and those of the Mumbai Municipal Corporation are dismissed.

† Headnotes prepared by: Divya Pandey