21 June 2024 Land Acquistion >> Property & Real Estate  

In a significant ruling in the matter of Our Lady of Immaculate Conception Church, Through its Parish Priest & Sole Trustee, Rev. Fr. Gerald Fernandes, Maharashtra v/s Municipal Corporation of Greater Mumbai, Through its Commissioner, Mumbai & Others, under Article 226 of the Indian Constitution, a public charitable trust challenged the processes surrounding the acquisition of its land adjacent to the Mandapeshwar Caves in Maharashtra. The petitioner sought a mandate directing the authorities to adhere to the legal requirements set forth in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (commonly referred to as the "2013 Act").

Background of the Case:

The petitioner, a registered charitable trust, is the owner of two parcels of land: CTS No. 216(pt) and CTS No. 190, totaling approximately 6041.2 square meters. These lands have been earmarked for public purposes, specifically as a garden/park. The Archaeological Survey of India (ASI), claiming ownership over the adjacent caves, initiated a legal inquiry concerning the land.

Complicating matters, a civil suit from 2001 had previously barred the ASI from disrupting the trust's possession and enjoyment of its property. The trust emphasized that any acquisition of its land must follow due legal processes as mandated by the 2013 Act.

The Trust’s Position:

In a letter dated February 9, 2024, the petitioner expressed its willingness to transfer the land for public use, provided it received monetary compensation as stipulated by law. However, the Municipal Corporation of Greater Mumbai (MCGM) proposed to grant Transferable Development Rights (TDR) in lieu of compensation, which the petitioner contested, asserting that such arrangements fall outside its operational scope as a charitable organization.

The MCGM’s rejection of the trust's request for fair monetary compensation led to the filing of the writ petition, seeking clarity on whether the acquisition of land reserved for public purposes must adhere strictly to the provisions of the 2013 Act.

Legal Considerations:

The crux of the matter revolves around Sections 125 and 126 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). These provisions clarify that land reserved for public purposes can be acquired in three ways:

1. By agreement, through a mutually accepted compensation amount.
2. In lieu of such payment, by granting TDR or Floor Space Index (FSI) to the landowner.
3. By making an application to the state government under the 2013 Act.

Notably, the court emphasized that any agreement regarding TDR or FSI must be bilateral, meaning that both parties must reach a consensus. In the absence of such an agreement, the acquisition must proceed through the formal mechanisms of the 2013 Act.

Court’s Findings:

The court ruled that if the Municipal Corporation wishes to acquire the trust's land, it must do so under Section 126(1)(c) of the MRTP Act, following the 2013 Act’s procedures. The judgment underscored that the MCGM cannot compel the petitioner to accept TDR or FSI without a mutual agreement. Additionally, the court instructed that until the legal acquisition process is properly initiated, the MCGM must respect the trust's peaceful possession of the land.

Conclusion:

This case highlights the complexities of land acquisition in India, particularly concerning public purpose projects and the rights of landowners. It reiterates the necessity of following due process and reaching a mutual agreement when dealing with land acquisition, ensuring that compensation is fair and legally sound. The ruling serves as a reminder of the importance of adhering to legal frameworks designed to protect the interests of landowners while facilitating public development.

  RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013    MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966