16 August 2024 Estate Planning >> Property & Real Estate  

In a recent judicial review, the Bombay  High Court examined a dispute concerning Transferable Development Rights (TDR) under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). The case of Bholenath Developers Ltd Mumbai & Another v/s The State of Maharashtra, through Urban Development Department, through the Office of the Government Pleader, Original Side, Mumbai & Others, revolves around the interpretation of regulations concerning TDRs and the applicability of recent amendments in development control regulations. Here's a summary of the court's decision and the underlying issues.

Background:

On November 16, 2016, the Maharashtra government issued a notification amending Regulation 34 of the Development Control Regulations 1991 (DCR 1991), which governs the grant of Transferable Development Rights (TDR). This notification aimed to regulate the provision of TDRs, particularly in relation to land reserved for public amenities.

The petitioners owned a plot of land in Mumbai, which was earmarked for a playground in the sanctioned Development Plan of March 25, 1991. On January 24, 2017, they applied for a Development Rights Certificate (DRC) under the new notification, hoping to secure the benefit of incentive TDR as prescribed. However, the Municipal Corporation of Greater Mumbai (MCGM), the third respondent, did not grant this benefit, leading the petitioners to file a writ petition.

Procedural History:

The petitioners' initial writ petition (L) No. 2427 of 2017 sought a direction for MCGM to process their application. This petition was disposed of on October 31, 2017, with an order directing MCGM to decide the application within three months. Subsequently, a Letter of Intent (LoI) was issued by MCGM on January 20, 2018, requiring the petitioners to meet certain conditions. Despite compliance with these conditions by May 3, 2018, and the subsequent notification of the Development Control Regulations 2034 (DCPR 2034) on May 8, 2018, the petitioners' application for TDR remained unresolved. As a result, the petitioners filed a second writ petition on August 31, 2019. On April 22, 2019, MCGM issued a DRC for an area of 3554 square meters of FSI but did not include the incentive TDR. The petitioners argued that they were entitled to an additional 20% incentive TDR as per the notification, given that their application was within one year of the notification's issuance.

Court's Findings:

The High Court dismissed the petition, outlining several key points:

1. Entitlement to Incentive TDR: The court held that entitlement to additional TDR is contingent upon the actual surrender of the land, not merely the submission of an application. The notification and subsequent regulations explicitly required the land to be surrendered free of encumbrances to qualify for incentive TDR.

2. Application of Regulations: The court noted that the DCPR 2034, which came into effect on September 1, 2018, replaced the earlier DCR 1991. Since the land was surrendered only on March 22, 2019, the DCPR 2034 governed the application. The DCPR 2034 provided different terms for TDR, limiting the incentive TDR to 10% rather than the 20% under the previous regulations.

3. Contractual Obligations: The court found no basis for the petitioners' claim of a concluded contract based on the LoI. The LoI required further compliance before any entitlement could be determined. Moreover, the petitioners' reliance on letters from their architect did not address the full compliance required by MCGM.

4. Judicial Precedents: The court rejected the petitioners' reliance on previous judgments that were not applicable to the case's specifics. It emphasized that rights to TDR accrue at the time of surrender, not when an application is made, and that retrospective application of regulations was not an issue in this case.

Conclusion:

The court's decision underscores the importance of actual compliance with regulatory requirements for the grant of TDR. The ruling clarifies that the entitlement to additional TDR is contingent upon the formal surrender of land and adherence to prevailing regulations at the time of such surrender. The decision also highlights that amendments to development control regulations can affect the applicability of TDR benefits, and such changes are not considered retrospective unless explicitly stated. 

  MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966