GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED THROUGH ITS CONSTITUTED ATTORNEY & ANR. versus THE MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS on 8 May 2023

56

SUPREME COURT REPORTS[2023] 6 S.C.R. 56

[2023] 6 S.C.R.

AGODREJ AND BOYCE MANUFACTURING COMPANYLIMITED THROUGH ITS CONSTITUTED ATTORNEY & ANR.

v.

THE MUNICIPAL CORPORATION OF GREATER MUMBAI &ORS.

B

(Civil Appeal No. 9021 of 2014)

MAY 08, 2023

[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]

Maharashtra Regional and Town Planning Act, 1966 : s. 126C– Acquisition of land required for public purposes specified in theplan – Appellant was the owner of the plot in second DevelopmentPlan for Greater Mumbai, reserved for the purpose of ‘RecreationGround’– Application by the appellant no. 1 to surrender landreserved for recreation purpose and for the grant of DevelopmentDRights Certificate-DRC – Intention to develop the land sought to besurrendered expressed – Proposal accepted, appellant undertookthe 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, rejectedby corporation on the basis of circular dated 09/04/1996 whichErestricted the grant of additional TDR in certain circumstances –Since the circular was under challenge before this Court, appellantno. 1 awaited the outcome – Later on, the said circular set aside bythis Court in 2009 in Godrej and Boyce Manufacturing CompanyLimited’s case, case of the appellant no. 1 but in respect of someFother property – Another request made for grant of Additional TDRin Nov 2009, which was declined in Aug 2010 – Writ petitionthereagainst, dismissed by the High Court, on the ground that therewas abandonment of claim by the appellants – On appeal, held:Law of abandonment was based upon the maxim invito beneficiumnon datur which meant that the law conferred upon a man no rightsGor benefits which he does not desire – However, during the periodfrom 1996 to 2009, the right to claim additional TDR was insuspended form making the appellant to necessarily wait till it wasdecided – It is clearly unjustified and unacceptable to say that thewait of the appellants during this period could tantamount toHabandonment – As regards, the grant of Additional TDR, all activities GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI

undertaken by appellant No.1 through their Architects till the handingover of possession of the land were not towards the development ofamenity and for the grant of Additional TDR – All those works wereundertaken as part of the effort to make the Corporation acceptthe surrender of land and to grant TDR – Thus, the High Court wasright in recording a finding of fact that the appellants did not developthe amenity so as to be entitled to additional TDR – Finding of factmade by the High Court in this regard is upheld – DevelopmentControl Regulations for Greater Mumbai, 1991 – Reg. 34.

Words and Phrases: “Amenity” and “development” – Meaningof, in the context of the Maharashtra Regional and Town PlanningAct, 1966.

Dismissing the appeal, the Court

HELD: 1.1. The law of abandonment is based upon themaxim invito beneficium non datur. It means that the law confersupon a man no rights or benefits which he does not desire. [Para15][69-B]

1.2 What was cited by the Municipal Corporation in theirorder of rejection dated 27.11.1998 as an impediment for the grantof additional TDR was the subject matter of challenge in the firstround. It was made by the very appellant No.1, though in respectof another property. If the said decision in the first round hadgone against appellant No.1, the rejection of the claim of theappellants 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 claimadditional TDR was in suspended animation. Thus, the appellantshad to necessarily wait till the cloud over their right got cleared.To say that the wait of the appellants during the period of thiscloudy weather, tantamount to abandonment, is clearly unjustifiedand unacceptable. Therefore, the finding recorded by the HighCourt that there was abandonment of claim by the appellants, isnot 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-A-B]

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A

A2.1 The word “amenity” as defined in s. 2(2) means severalthings including “recreation ground.” The word “development”includes under Section 2(7), mining or other operations in or overthe land or the making of any material change in any building orland and reclamation, redevelopment and layout and sub-divisionof any land. [Para 38][76-D-E]B

2.2 To be precise, all activities undertaken by appellantNo.1 through their Architects till the handing over of possessionof the land were not towards the development of amenity and forthe grant of Additional TDR. All those works were undertakenas part of the effort to make the Corporation accept the surrenderCof land and to grant TDR. [Para 41][83-B-C]

2.3 It is only after the entry of Mayfair Housing, (of whichappellant no.2 is a partner) into the picture, first with a letter ofrequest dated 20.11.1996 to the Corporation to develop andmaintain the Recreation Ground and then with the execution ofDthe Power of Attorney by appellant No.1 on 24.12.1996 that theidea of developing an amenity and seeking additional TDR hadcropped up. But unfortunately, the Corporation made it clear toMayfair Housing represented by appellant No.2 that he wouldnot be entitled to Additional TDR, for the development ofERecreation Ground. In the letter dated 23.01.1998 it was madeclear 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 20.11.1996to the Corporation seeking permission to develop and maintainFthe RG, they had nothing to do with the surrendered land.Therefore, they were not entitled either to TDR or to additionalTDR. Realising this difficulty, they appear to have got 2 deeds ofPoA from appellant No.1 so as to piggy ride on appellant No.1. Infact, the first PoA was redundant since by the time it was executed,appellant No.1 had already obtained DRC for TDR. Yet, the firstGPoA was towards TDR and the second PoA was for additionalTDR. [Para 43][83-E-F]

2.5 Even an independent analysis of the correspondencebetween the parties show that no amenity was developed as H

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI

required by law, by appellant No.1, to be entitled to AdditionalTDR. [Para 44][83-G]

2.6 Drawing the attention to the photographs of theRecreation Ground as it exists, it was submitted by the counselfor the appellants that what was once a barren land, could nothave become what it is but for the activities undertaken by theappellants. Therefore, his submission was that if this is notconstrued as development of amenity, nothing else can beconstrued so. [Para 45][84-A-B]

2.7 Unfortunately for the appellants, whatever they had donethrough their Architects up to the date of handing over possessionand getting the DRC, was not projected by them as thedevelopment of amenity. If all those activities up to the date ofhanding over possession constituted development of amenity,there was no necessity for appellant No.1 to give PoA to appellantNo.2 to undertake the activity of development of amenity and toseek Additional TDR. If the work of development of amenity andthe lodging of a claim for additional TDR had been undertakenonly after Mayfair Housing entered into the picture, then theappellants became bound by the condition laid down by theCorporation that appellant No.2 will not be entitled to AdditionalTDR. The High Court was right in recording a finding of fact thatthe appellants did not develop the amenity so as to be entitled toadditional TDR. Once the finding of fact made by the High Courtin this regard is upheld, the appeal should automatically meetwith 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. AppaRao (1974) 2 SCC 725 : [1975] 2 SCR 32 – referredto.

Para 15Para 16

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No.9021 Of2014.

From the Judgment and Order dated 08.08.2011 of the High Courtof Bombay in WP No. 2058 of 2010.

P. Chidambram, Pravin Samdhani, Sr. Advs., PramodBB. Agarwala, Anirudh Joshi, Nivit Srivastava, Nell Mandevia, KunalVajani, Aayush Agarwala, Shubhang Tandon, Advs. for the Appellants.

Atmaram N. S. Nadkarni, Sr. Adv., S. Sukumaran, Anand Sukumar,Bhupesh Kumar Pathak, Ms. Meera Mathur, S. S. Rebello, Ms. DeeptiArya, Ms. Arzu Paul, Ms. Manisha Gupta, Advs. for the Respondents.C

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the dismissal of their claim by the Bombay HighCourt, for the grant of Development Rights Certificate[1] for a total areaDof 31,057.30 sq.metres, for the construction and development of theamenity namely “Recreation Ground”, the writ petitioner before theBombay High Court has come up with this appeal.

2. We have heard Shri P. Chidambaram, learned senior counselfor the appellants and Shri Atmaram N.S. Nadkarni, learned seniorEcounsel appearing for the respondents.3. The background facts leading to the appeal on hand are asfollows:-

(i) The second Development Plan (DP 1991) for Greater MumbaiFwas prepared for the period 1981-2001 and the same was sanctioned inparts between 1991 and 1994. In the said DP, the plots of land bearingCTS No.2B (part) falling in N-Ward & CTS Nos. 2B (part) and 3Bfalling in S-Ward were reserved for the purpose of “RecreationGround”; G(ii) The aforesaid plot of land was admittedly owned by appellantNo.1 herein. Appellant No.2 herein is the duly constituted attorney ofappellant No.1 in respect of the said property;

(iii) Under Maharashtra Act 10 of 1994, clauses (a), (b) and (c)were inserted under sub-section (1) of Section 126 of the Maharashtra H1 For short “DRC”

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

Regional and Town Planning Act, 1966 (hereinafter called “the Act”),by way of substitution. These clauses were inserted with effect from25.03.1991;

(iv) Section 126 (1) conferred power upon the Planning Authority/Development Authority, to acquire any land required or reserved for anyof the public purposes specified in any plan or scheme, after thepublication of a Draft Regional Plan[2] or a DP or Town Planning Scheme[3].The newly inserted clauses (a), (b) and (c) in sub-section (1) provided 3different methods of such acquisition. One method of acquisition was byway of an agreement upon payment of an agreed amount. The secondmethod of acquisition was by granting, in lieu of any compensation, FloorSpace Index[4] or Transferable Development Rights[5] against the area ofland surrendered free of cost and also further additional FSI or TDRagainst the development or construction of the amenity on the surrenderedland. The third method of acquisition was through the initiation ofproceedings under the Right to Fair Compensation and Transparency inLand Acquisition, Rehabilitation and Resettlement Act, 2013;

(v) Vide letter dated 14.07.1994, appellant No.1 through theirArchitects, “Worthy Enterprises” made an application for surrenderingland of the extent of 31,057.58 sq.metres (two plots) which was reservedunder the DP for the purpose of “Recreation Ground”. An applicationfor the grant of DRC was enclosed to the said letter;

(vi) It is relevant to mention at this stage that the TDR to begranted in lieu of compensation for acquisition of land, as contemplatedin clause (b) of sub-section (1) of Section 126 comprised of twocomponents namely, (i) TDR equal to the area of land surrendered; and(ii) additional TDR against the development or construction of the amenityon the surrendered land at the cost of the owner;

(vii) Vide another letter dated 08.10.1994, the Architect of appellantNo.1 wrote a letter to the Municipal Corporation, expressing their intentionto develop the land sought to be surrendered;

(viii) By another letter dated 24.11.1994, the Architect of appellantNo.1 forwarded to the Superintendent of Gardens, a set of drawings for 2 For short “DRP”

3 For short “TPS”

4 For short “FSI”

5 For short “TDR”

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Athe development of the land, after incorporating the suggestions madeby the Department pursuant to the visit made by the DeputySuperintendent of Gardens;

(ix) Vide letter dated 03.12.1994 the Superintendent of Gardensforwarded to the Assistant Engineer, the appellants’ proposal;B

(x) By a letter of intent dated 05.04.1995, issued by the ChiefEngineer (Development Plan), appellant No.1 was informed that theirrequest for the grant of DRC will be considered after the requirementsmentioned therein were complied with. One of the conditions indicatedin the said letter dated 05.04.1995 was that the appellant had to depositCa sum of Rs.3,50,000/- as security for the faithful compliance of therequirements mentioned in the letter;

(xi) Appellant No.1, through their Architects, undertook thedevelopment work. Site inspection was also carried out by the officialsof the Municipal Corporation. Eventually the Deputy Chief EngineerD(Planning and Design), issued a letter dated 27.05.1995 certifying thecompletion of the development work undertaken by the appellant No.1.This letter was issued after making a site inspection on 23.05.1995;

(xii) By a subsequent letter dated 20.07.1995, the Chief Engineerinformed appellant No.1 that they have to complete Storm Water DrainsEand that thereafter, the DRC will be issued. Accordingly, the appellantNo.1 undertook the construction of Storm Water Drains;

(xiii) Thereafter, the Executive Engineer issued a communicationdated 20.10.1995 certifying that the drains have been constructedsatisfactorily;F(xiv) As a matter of fact, the Architects of appellant No.1 had a F(xiv) As a matter of fact, the Architects of appellant No.1 had atemporary site office and godown on the plot reserved for “RecreationGround”. This was, as per the letter dated 28.09.1995 of the Architects,for the purpose of developing the additional amenity and for landscapingof Recreation Ground. Therefore, in a couple of communications, theArchitects of the appellant No.1 offered to remove the same, once theGwork was completed. Appellant No.1 even deposited a sum of Rs.25,000/- for the retention of the temporary structure, to store materials requiredfor the development;

(xv) When appellant No.1 was developing the amenity, the localpeople wanted access and, hence, the Deputy Chief Engineer requestedH

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

through his note dated 30.11.1995, orders of the Chief Engineer on twothings, namely, (i) access to the local people; and (ii) permission to takeover possession of the developed land;

(xvi) Simultaneously, appellant No.1 handed over formal possessionof the land on 09.12.1995;

(xvii) On 14.12.1995, the respondents granted NOC to appellantNo.1 in terms of the proposal dated 07.12.1995. A further scrutiny reportdated 28.12.1995 acknowledged that the “Recreation Ground” wasbeing developed in terms of the approval granted on 14.12.1995;

(xviii) While things stood thus, the Municipal Corporation issued aCircular dated 09.04.1996, restricting the grant of additional TDR inrespect of amenities such as “Recreation Ground”, only for thestructures allowed to be constructed within the reservations, to the extentof built-up area of such structures subject to a maximum of 15% area ofthe reservations. This Circular and another Circular dated 05.04.2003became the subject matter of challenge, which resulted in this Courtdelivering a Judgment reported in Godrej and Boyce ManufacturingCompany Limited vs. State of Maharashtra and Others.[6];

(xix) During the pendency of the above proceedings, appellantNo.1 constituted appellant No.2 as their Power of Attorney[7] in respectof the amenity TDR (Additional TDR) under a Deed dated 24.12.1996;

(xx) Claiming to have completed the development of the amenity,the appellants applied on 17.04.1998 for the grant of Additional TDR(also known as “Amenity TDR”);

(xxi) But by a reply dated 27.11.1998, the Corporation declined toconsider the request for additional TDR on the ground of prevailing policy(namely, the Circular dated 09.04.1996);

(xxii) Since the Circular was under challenge before this Court,appellant No.1 awaited the outcome of the challenge;

(xxiii) Therefore, after the circular was set aside by this Court inthe decision in Godrej and Boyce Manufacturing Company Limited(supra), the appellant made one more request for the grant of AdditionalTDR by a letter dated 03.11.2009. But the same was turned down bythe Municipal Corporation by an order dated 17.08.2010; 6 (2009) 5 SCC 24

7 For short “PoA”

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A(xxiv) Aggrieved by the said response, the appellants filed a writpetition in WP No.2058 of 2010. This writ petition was dismissed by theHigh Court of Judicature at Bombay by an order dated 08.08.2011. It isagainst the said order that the appellants have come up with the aboveappeal.B4. While rejecting the claim of the appellants, the High Courtrecorded the following findings:

A

(i) that a claim for Additional TDR generally arises in terms ofclause 6 of Appendix VII of Regulation 34 of the Development ControlRegulations for Greater Mumbai, 1991[8]; C

(ii) that the entire correspondence exchanged between theappellants and the respondents from 14.07.1994 till the year 1998 doesnot disclose that the appellants intended to avail additional TDR in termsof clause 6;

(iii) that if there was any such intention, the owner ought to haveDapproached the Commissioner or the Appropriate Authority in terms ofclause 6 of Appendix VII;

(iv) that the Superintendent of Gardens was not the appropriateauthority in respect of the Garden Department;

(v) that what was claimed by appellant No.1 and their ArchitectsEwas only TDR as per clause 5 and not additional TDR under clause 6 ofAppendix VII of Regulation 34;

(vi) that the appellants accepted DRC dated 02.01.1996 withoutany protest; F(vii) that the appellants have failed to establish that they carriedout any development;

(viii) that the agreement executed between M/s Mayfair Housingand the Corporation shows that the appellants merely surrendered theland and claimed TDR in terms of clause 5 but did not carry out anyGdevelopment in terms of clause 6;

(ix) that while surrendering the land and claiming TDR in termsof clause 5, appellant No.1 submitted a proposal enclosing Form No.2625; H

8 For short “the Regulations”

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.](x) that at Serial No.17 of the said printed form, the owners werecalled upon to inform whether the reservation is proposed to be built asper the plans approved by the concerned authority as per clause 6;

(xi) that the answer of appellant No.1 to the question at serialNo.17 was that the question does not arise as the reservation was for“Recreation Ground”;

(xii) that before claiming additional TDR in terms of clause 6,neither appellant No.1 nor appellant No.2 filled in the printed Form;

(xiii) that under clause 6, the amenity has to be developed as perthe stipulations prescribed by the Commissioner or the appropriateauthority, but in this case, these authorities did not prescribe anystipulations, since the appellants did not submit any printed Form foradditional TDR;

(xiv) that appellant No.2 is not the owner or lessee of the landand hence when appellant No.2 made a request for the development/maintenance of the land, the request was granted on condition thatappellant No.2 will not claim any TDR; and

(xv) that in any case the appellants should be deemed to haveabandoned their claim for additional TDR, in view of the fact that theycame up with the writ petition only in the year 2010 challenging therejection of the request for additional TDR made in the year 1998 andthat, therefore, the writ petition deserves to be dismissed.

5. Assailing the impugned order of the High Court, it is contendedby Shri P. Chidambaram, learned senior counsel:

(i) that TDR/Additional TDR, constitute compensation in kind forthe acquisition of the land and the development of the amenity and hencethe denial of the same will be an infringement of the right to propertyguaranteed under Article 300A of the Constitution;

(ii) that there is no dispute that the appellants developed the“Recreation Ground,” in terms of the plan approved by theSuperintendent of Gardens;

(iii) that the High Court overlooked the approval granted by theMunicipal Commissioner which was available on record and hence thefinding that the appropriate authority did not grant approval is factuallyincorrect; A

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A(iv) that in terms of Regulation 6, the amenity is required to bedeveloped “on the surrendered plot” and the vesting in favour of theCorporation takes place only after the development of the amenity interms of Section 126(1)(b);

(v) that the stand taken by the Corporation before the High CourtBthat the appellant did not develop the amenity, was an afterthought;

(vi) that the request for Additional TDR made by the appellantson 17.04.1998 was rejected by the Corporation by a communicationdated 27.11.1998, not on the ground that the appellants did not developthe amenity, but on the sole ground that the prevailing policy did notCpermit the grant of additional TDR;

(vii) that the inference drawn by the High Court that there wasabandonment of right by the appellant, on account of the delay inapproaching the High Court, was totally perverse:

(viii) that the High Court failed to appreciate that the delay wasDdue to the necessity for the appellant to await the outcome of theirchallenge to the “prevailing policy” and that, therefore, the impugnedorder is liable to be set aside.

6. Defending the action of the respondents and the impugned orderof the High Court, it is contended by Shri Atmaram N.S. Nadkarni, learnedEsenior counsel:-

(i) that after going through the entire correspondence betweenthe parties, the High Court has recorded findings of fact on variousaspects such as the appellants not undertaking the development of anyamenity, the appellants not making any claim for Additional TDR andFthe lack of approval on the part of the appropriate authority for thedevelopment of any amenity;

(ii) that these findings of fact do not warrant any interferenceunder Article 136 of the Constitution;

(iii) that the rejection of the request for additional TDR, made onG27.11.1998 was challenged by the appellants only after 12 years andhence the High Court was justified in drawing an inference about theabandonment of claim;

(iv) that after the surrender and transfer of the land in favour ofthe Corporation and the grant of TDR, the appellants ceased to be ownersHand hence they were not entitled to claim additional TDR; GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

(v) that the claim for Additional TDR should be madesimultaneously with the claim for TDR, but the appellants failed to doso; A

(vi) that the appellants made a claim for Additional TDR only in1998 after surrendering and transferring the land in the year 1995; B

(vii) that in any case, the development of amenities had to becarried out as per the stipulations made by the competent authority; and

(viii) that the activities of cutting, leveling, filling, terracing andlandscaping cannot be treated as the development of amenity and thattherefore the action of the respondents and the order of the High Courtwere perfectly in order.

C

7. We have carefully considered the rival contentions.

8. From the rival contentions, it appears to us that the followingtwo questions arise for our consideration:

D

(I)Whether the High Court was right in concluding that therewas abandonment of claim by the appellants? ; and

(II)Whether the finding of fact arrived at by the High Courtthat the appellants did not and could not have developedthe amenity, calls for any interference, especially in the lightof the statutory provisions and the facts that unfold fromEthe correspondence exchanged between the parties?

Question No.I: Whether the High Court was right inconcluding that there was abandonment of claim by theappellants?

F

9. It is true that the claim made by the appellants for the grant ofadditional TDR vide their application dated 17.04.1998 was rejected bythe Corporation, by a communication dated 27.11.1998 and that the samewas challenged by the appellants by way of a writ petition filed after 12years in September-2010. The High Court held that this delay of 12years in challenging the action of the respondents tantamount toabandonment of claim.

G

10. Let us now see whether the inference of abandonment isfactually made out and legally sustainable.

11. The order of rejection dated 27.11.1998 is a cryptic orderwhich reads as follows:

H

A“This is to inform you that, the proposal submitted by you forgrant of additional T.D.R in lieu of development of RecreationGround on the land bearing CTS No.2/B(pt), 3(B) of VillageGhatkopar cannot be considered, as per the prevailing policyin this respect.”

B12. Obviously the expression “prevailing policy,” mentioned inthe aforesaid communication, was the Circular dated 09.04.1996. Thesaid circular dated 09.04.1996 dealt with several issues, one of whichrelated to Additional TDR for open space amenities. The relevant portionof the Circular dated 09.04.1996 reads as follows:

C“2. OPEN SPACE AMENITIES LIKE GARDEN,PLAYGROUND R.G., PARKING, OPEN SPACES &BURIAL GROUND

i) The application for additional Development Right in respect ofthe above mentioned amenities will be considered only for thestructures allowed to be constructed within the reservations asDper the provisions of D.C.R. No. 23(g) to the extent of built-uparea of such structures, subject to maximum of 15% area of thereservations.

ii) No additional Development Right will be granted for executionEof the items such as leveling, construction of compound wall,retaining wall, providing compound gate providing layer of red-earth, landscaping & drainage arrangements etc.

iii) Procedure & terms and conditions for considering grant ofadditional Development Rights for such structures will be the sameFas per Item No.1 above.”

13. In fact, the above circular dated 09.04.1996, gave rise to adispute between appellant No.1 herein and a few others on the one handand the Corporation on the other hand. That dispute which related tosome other property, ultimately landed up before this court in the form ofa couple of civil appeals and a writ petition. The dispute got resolvedGthrough the decision of this court in Godrej and Boyce ManufacturingCompany Limited (supra). The said decision was rendered on06.02.2009.

14. Therefore, taking advantage of the said decision, appellantNo.2 applied once again for the grant of Additional TDR, on 03.11.2009.H

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

The same was rejected once again by a communication dated 17.08.2010.This rejection triggered the present proceedings in the year 2010. It is inthe light of this chain of events that we have to see whether there wasany delay on the part of the appellants and whether such delay couldlead to an inference of abandonment of claim.

15. The law of abandonment is based upon the maxim invitobeneficium non datur. It means that the law confers upon a manno rights or benefits which he does not desire. In P. Dasa MuniReddy vs. P. Appa Rao[9], this Court held that “abandonment of rightis much more than mere waiver, acquiescence or laches…. Waiver isan intentional relinquishment of a known right or advantage,benefit, claim or privilege….”. In paragraph 13 of the said decision,this Court put the law pithily in the following words:

“13…. There can be no waiver of a non-existent right.Similarly, one cannot waive that which is not one’s as a rightat the time of waiver. ...”

16. Irrespective of whether the respondents concede or not, theCircular dated 09.04.1996 curtailed the rights of the owners to haveadditional TDR in certain circumstances. The Circular came underchallenge before this Court and the decision of this Court in Godrej andBoyce Manufacturing Company Limited was delivered on 06.02.2009.As we have stated earlier, the decision in Godrej and BoyceManufacturing Company Limited was in the case of the very appellantNo.1 herein though in respect of some other property.

17. To put it differently, what was cited by the MunicipalCorporation in their order of rejection dated 27.11.1998 as an impedimentfor the grant of additional TDR was the subject matter of challenge inthe first round. It was made by the very appellant No.1 herein, though inrespect of another property. If the said decision in the first round hadgone against appellant No.1 herein, the rejection of the claim of theappellants for additional TDR on the basis of “prevailing policy” wouldhave become final and unquestionable.

18. In other words, during the period from 1996 to 2009, the rightto claim additional TDR was in suspended animation. Therefore, theappellants 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 A

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Aweather, tantamount to abandonment, is clearly unjustified andunacceptable. Therefore, the finding recorded by the High Court onquestion No.1 is not in tune with the law or the facts of the present caseand hence question No.1 has to be answered in favour of the appellantsherein.

BQuestion No.II: Whether the finding of fact arrived at bythe High Court that the appellants did not and could nothave developed the amenity, calls for any interference,especially in the light of the statutory provisions and thefacts that unfold from the correspondence exchangedbetween the parties?C

19. The answer to question No.2 revolves both around factualaspects and around certain statutory provisions. Let us first take note ofthe statutory provisions, out of which the right to claim additional TDRarose.

D20. Section 126(1) of the Act reads as follows:“126.Acquisition of land required for public purposesspecified in plans

(1) When after the publication of a draft Regional Plan, aDevelopment or any other plan or town planning scheme, anyEland is required or reserved for any of the public purposes specifiedin any plan or scheme under this Act at any time, the PlanningAuthority, Development Authority, or as the case may be, anyAppropriate Authority may, except as otherwise provided in section113A acquire the land,—

F(a) by agreement by paying an amount agreed to, or (b) in lieu of any such amount, by granting the land-owneror the lessee, subject, however, to the lessee paying thelessor or depositing with the Planning Authority,Development Authority or Appropriate Authority, as the casemay be, for payment to the lessor, an amount equivalent tothe value of the lessor’s interest to be determined by any ofthe said Authorities concerned on the basis of the principleslaid down in the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013, Floor Space Index (FSI) or G

H

Transferable Development Rights (TDR) against the areaof land surrendered free of cost and free from allencumbrances, and also further additional Floor Space Indexor Transferable Development Rights against thedevelopment or construction of the amenity on thesurrendered land at his cost, as the Final DevelopmentControl Regulations prepared in this behalf provide, or

(c) by making in application to the State Government foracquiring such land under the provisions of the Right toFair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013,

and the land (together with the amenity, if any, sodeveloped or constructed) so acquired by agreement or by grantof Floor Space Index or additional Floor Space Index orTransferable Development Rights under this section or underthe provisions of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013, as the case may be, shall vestabsolutely free from all encumbrances in the Planning Authority,Development Authority, or as the case may be, any AppropriateAuthority.”

21. As we have noted earlier, clauses (a), (b) and (c) were insertedby way of substitution in sub-section (1) of Section 126 underMaharashtra Act 10 of 1994 with effect from 25.03.1991.

22. As per Section 126(1), whenever the Planning Authority orDevelopment Authority finds after the publication of a draft RegionalPlan or a Development Plan that any land is required or reserved forany of the public purposes mentioned in the plan, such authority mayacquire the land for the said public purpose. This acquisition can bemade by three different methods, indicated in clauses (a), (b) and (c).The methods of acquisition prescribed in clauses (a), (b) and (c) of sub-section (1) of Section 126, in simple terms are as follows:-

(i) The acquisition may be through an agreement entered intowith the owner, by paying an amount agreed to;

(ii) Alternatively, the acquisition may be by the grant of FSI orTDR in lieu of any payment, along with Additional FSI or Additional AB

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ATDR against the development or construction of the amenity on thesurrendered land at the cost of the owner; or

(iii) The acquisition may also be by requesting the StateGovernment to initiate the process of land acquisition under the Right toFair Compensation and Transparency in Land Acquisition, RehabilitationBand Resettlement Act, 2013.

23. We are concerned in this case with the second method ofacquisition of land indicated in clause (b) of sub-section (1) of Section126. Under this clause, the owner and the planning authority are grantedthe leverage to agree that the compensation for the acquisition of theCland will be for a consideration, not paid in the form of cash but grantedin kind, in the form of two things, namely, (i) FSI or TDR for the area ofland surrendered; and (ii) additional FSI or additional TDR against thedevelopment or construction of the amenity on the surrendered land.

24. Once the parties are ad idem on the fact that the case isDcovered by clause (b), then what is necessary to be seen by Courts is:(i) whether the parties had agreed to give/take FSI or TDR in lieu of theamount of compensation?; and (ii) whether there was a valid claim forthe grant of additional FSI or additional TDR towards the developmentor construction of the amenity on the surrendered land at the cost of theowner?.E

25. There is no dispute on facts in this case that the appellantssurrendered their land and accepted TDR in lieu of compensation. Theonly question on which the parties have a dispute, is as to whether thelast limb of clause (b) stands satisfied or not.

26. For a better appreciation, it is necessary to extract the lastlimb of clause (b) as follows: “ … and also further additional FloorSpace Index or Transferable Development Rights against thedevelopment or construction of the amenity on the surrendered landat his cost, as the Final Development Control Regulations preparedin this behalf provide,”

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27. The last limb of clause (b) extracted above shows that theowner of the land is under an obligation to develop or construct theamenity on the surrendered land at his cost and the Planning Authorityhas to reciprocate the same by granting Additional FSI or AdditionalTDR.

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GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

28. On the question as to whether the appellants have fulfilledtheir obligations under the last limb of clause (b), there are controversiesboth on facts and in law. On facts it is contended by the respondents thatthe appellants did not develop or construct the amenity and in law it iscontended that what is stated to be developed is not as per the FinalDevelopment Control Regulations.

29. To resolve this conflict, it is necessary to take note of thedefinition of the word “amenity”, which is defined in Section 2(2) of theAct as follows:

“2. Definitions

In this Act, unless the context otherwise requires,—

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(2) “Amenity” means roads, streets, open spaces, parks,recreational grounds, play grounds, sports complex, paradegrounds, gardens, markets, parking lots, primary and secondaryschools and colleges and polytechnics, clinics, dispensaries andhospitals, water supply, electricity supply, street lighting, sewerage,drainage, public works and includes other utilities, services andconveniences;”

30. The word “amenity” has been defined in Section 2(2) of theAct to mean several things including “Recreational Grounds”. We areconcerned in this case with a “Recreational Ground”. The claim ofthe appellants is that they have developed a Recreational Ground.Interestingly, it is not the case of the respondents that the appellantswere required to develop something else and not a Recreational Ground.On the contrary, it is the case of the respondents that the appellants didnot develop the Recreational Ground. Therefore, all that we are obligedto see is whether a Recreational Ground was developed or not.

31. The word “development” is also defined in the Act in Section2(7) as follows:

“2. Definitions

In this Act, unless the context otherwise requires,—

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A(7) “development” with its grammatical variations means thecarrying out of buildings, engineering, mining or other operationsin or over or under, land or the making of any material change, inany building or land or in the use of any building or land or anymaterial or structural change in any heritage building or its precinctand includes demolition of any existing building, structure orBerection or part of such building, structure of erection; andreclamation, redevelopment and lay-out and sub-division of anyland; and “to develop” shall be construed accordingly;”

32. The above definition shows that the word “development” isgiven a very wide meaning. In fact, the last limb of clause (b) of sub-Csection (1) of Section 126 uses both the expressions, namely (i)development; and (ii) construction. Therefore, the word “development”has to be understood to mean any activity which may or may not includeconstruction.

33. Having seen the relevant provisions of the Statute, let us nowDhave a look at the Regulations. This has become necessary in view ofthe fact that the last limb of clause (b) extracted above refers to “theFinal Development Control Regulations prepared in this behalf”.Therefore, the question whether the appellants developed or constructedany amenity, should be tested with reference to the Final DevelopmentEControl Regulations.34. The Regulations define the word “amenity” under Regulation2(7) as follows:

“2. Definitions of Terms and Expressions:- Fxxxxxxxxx

(7) “Amenity” means roads, streets, open spaces, parks,recreational grounds, play grounds, gardens, water supply, electricsupply, street lighting, sewerage, drainage, public works and otherutilities, services and conveniences.”

GEven this definition includes Recreational Ground.

35. Regulation 34 of the Regulations deals with Transfer ofDevelopment Rights. Regulation 34 reads as follows:

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

“34. Transfer of Development Rights:-

In certain circumstances, the development potential of aplot of land may be separated from the land itself and may bemade available to the owner of the land in the form of TransferableDevelopment Rights (TDR). These Rights may be made availableand be subject to the Regulations in Appendix VII hereto.”

36. Appendix VII referred to in Regulation 34 later got renumberedas Appendix VII-A vide order dated 15.10.1997. Clauses 5, 6 and 7 ofthe Regulations formed the eye of the storm before the High Court.Therefore, they are extracted as follows:

“APPENDIX VII-A

(Regulation 34)

Regulations for the grant of Transferable Development Rights(TDRs) to owners/developers and conditions for grant of suchRights xxxxxxxxx

5. The built-up area for the purpose of FSI credit in the form of aDRC shall be equal to the gross area of the reserved plot to besurrendered and will proportionately increase or decreaseaccording to the permissible FSI of the zone where from the TDRhas originated.

Provided that in specific cases considering the merits, whereDevelopment Plan Roads/ reservations are proposed in NoDevelopment Zone, the Commissioner with prior approval of theGovernment shall grant FSI for such road land/reserved landequivalent to that of the adjoining zone.

6. When an owner or lessee also develops or constructs theamenity on the surrendered plot at his cost subject to suchstipulations as may be prescribed by the Commissioner or theappropriate authority, as the case may be and to their satisfactionand hands over the said developed/ constructed amenity to theCommissioner/ appropriate authority, free of cost, he may begranted by the Commissioner a further DR in the form of FSIequivalent to the area of the construction/development done byhim, utilisation of which etc. will be subject to the Regulationscontained in this Appendix.

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A7. A DRC will be issued only on the satisfactory compliance withthe conditions prescribed in this Appendix.”

37. The High Court, after scanning the correspondence came tothe conclusion that clause 5 of Appendix VII alone is applicable to thecase on hand, since the appellants made a claim only for TDR equivalentBto the gross area of the reserved plot surrendered to the Corporationand that clause 6 was not applicable as the owner did not develop orconstruct the amenity on the surrendered land at his cost. Therefore, itis necessary to go back to certain factual details to find out (i) whetherappellant No.1 did develop the amenity; and (ii) whether they made aclaim traceable only to clause 5 and not to clause 6 of Appendix VII toCthe Regulations read with Regulation 34.

38. The answer to the first question whether appellant No.1 diddevelop the amenity or not, lies in the correspondence. As we havepointed out earlier, the word “amenity” means several things including“recreation ground.” The word “development” includes under SectionD2(7), mining or other operations in or over the land or the making of anymaterial change in any building or land and reclamation, redevelopmentand layout and sub-division of any land. Keeping these definitions inmind, if we go back to the correspondence, the picture that unfolds is asfollows :- E

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(i) By the letter dated 08.10.1994, the Architects of appellantNo.1 informed the Director (ES&P) of the Bombay MunicipalCorporation that they “intended to develop the surrendered land beforehanding over, by suitably cutting, levelling, filling and terracingetc., in order to have a Recreation Ground with utility and beauty”; F(ii) A plan was also attached to the said letter dated 08.10.1994showing the proposed overall development;

(iii) Pursuant to the said letter, the Superintendent and DeputySuperintendent of Gardens visited the site, as could be seen from theletter dated 24.11.1994 addressed by the Architect to the SuperintendentGof Gardens. To this letter, a set of drawings prepared after incorporatingthe suggestions of the Department was also enclosed;

(iv) By a departmental note dated 03.12.1994, the Superintendentof Gardens seems to have addressed the Executive Engineer (DP)(ES)indicating that the plan submitted by the Architect was slightly modifiedHafter visiting the site. The Executive Engineer was also requested to inform further development in future so that the progress could bemonitored;

(v) The said departmental note dated 03.12.1994 contains anendorsement at the bottom to the effect “please inform that developercan develop the RG by availing ATDR.” Obviously, the acronym RGstands for Recreation Ground and the acronym ATDR stands forAdditional Transferable Development Rights;

(vi) By a letter dated 05.04.1995 addressed by the Chief Engineer(DP) to appellant No.1, they were instructed to carry out certain things,as per the plan submitted by their Architect. Two important things couldbe noticed from this letter. The first is that Point No.7 mentioned in thesaid letter speaks about the joint measurement of the “RecreationGround”. The second is that the letter was described as an intent lettervalid for a period of one year, but eligible to be revalidated for furtherperiods;

(vii) By a letter dated 27.05.1995, the Deputy Chief Engineer(Planning and Design) informed the Architects that the work undertakenby them was found completed as per the amended plan approved by theDepartment and as per the re-location approved by the Director (ES &P). This letter was issued after an inspection of the site on 23.05.1995.

(viii) By a letter dated 28.09.1995, the Architect of appellant No.1informed the Assistant Engineer (DP) that the Architects had a temporarysite office and go-down constructed on the plot reserved for RecreationGround and that they were being used for constructing additional amenityand landscaping of Recreation Ground. By the said letter, the Architectundertook to remove these structures after completion of “thedevelopment of RG”.

(ix) By a departmental note dated 30.11.1995, the Deputy ChiefEngineer sought the approval of Municipal Commissioner on certainissues. One of the issues on which the orders of the MunicipalCommissioner were sought, was the development of RG by plantingtrees, providing fountain etc. and the removal of the structures erectedby the Architects for the purpose of carrying out the development, withintwo years. The said note was approved by the Municipal Commissioneron 04.12.1995.

(x) It is only after the above events that the handing over andtaking over possession of the surrendered land took place on 09.12.1995.

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(xi) After the handing over and taking over possession of the land,the Superintendent of Gardens sent a communication date 14.12.1995 tothe Architect of appellant No.1 that they have no objection to thelandscaping being undertaken.

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(xii) In a Departmental note put up on 28.12.1995, it was mentionedBclearly that the Recreation Ground was developed by appellant No.1as per the approval of Superintendent of Gardens.

(xiii) On 02.01.1996, a DRC (Development Rights Certificate)was issued to appellant No.1, with respect to the surrendered land.

(xiv) It is only thereafter that appellant No.2 who is a partner ofCMayfair Housing jumped into the fray and sought permission to maintainthe Recreation Ground, through a letter dated 20.11.1996. On the saidletter dated 20.11.1996, there is an endorsement of the Joint MunicipalCommissioner made on 26.11.1996 that the plot had come to BMC underTDR and that, “he had spent Rs.1.25 crores on this RG and developedit”.D

(xv) On the said letter dated 20.11.1996 of Mayfair Housing, anote order was passed by the Deputy Municipal Commissioner statingthat there was no clarity about the nature of the activities to be carriedout by Mayfair and that the same needed to be part of an agreement.

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E(xvi) Thereafter appellant No.1 executed two deeds of power ofattorney, both dated 24.12.1996 in favour of appellant No.2 and his wife.By one power of attorney, appellant No.1 authorised their duly constitutedattorneys to deal with the TDR already granted to them under theDevelopment Rights Certificate issued on 02.01.1996. By the other deedFof power of attorney, appellant No.1 authorized their duly constitutedattorneys to seek the grant of “Amenity TDR” also known as AdditionalTDR. Interestingly, this deed authorized appellant No.2 and hiswife to apply for getting permission from the authorized departmentfor the construction of Recreation Ground in accordance with theplans/specifications.G

(xvii) It is important to note that both the deeds of power ofattorney were executed by appellant No.1 on 24.12.1996, afterappellant No.2 representing Mayfair Housing made a representationon 20.11.1996 seeking permission for the development of RecreationGround.

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

(xviii) Therefore, when a note was put up by the Deputy ChiefEngineer on 30.01.1997 on the proposal made by the Deputy MunicipalCommissioner, it was indicated therein that the permission for thedevelopment of RG plot has been granted although additional TDRfor the same was not admissible.

(xix) Thereafter, a communication was issued to Mayfair Housing,with reference to the letter of appellant No.2 dated 20.11.1996, informingthem that the development and maintenance of the Recreation Groundon payment of nominal fee has been sanctioned, subject to certainconditions, one of which was that no TDR will be given.

(xx) All the above correspondence culminated in the letter ofrequest dated 17.04.1998 issued by appellant No.2 on behalf of appellantNo.1 for the grant of additional TDR.

39. The entire correspondence that began with a letter dated14.07.1994 sent by Worthy Enterprises, the Architects of appellant No.1to the Chief Engineer (DP) of the Municipal Corporation and culminatingin the letter of appellant No.2 dated 17.04.1998 seeking the grant ofadditional TDR, can be split into two time zones. The first of these timezones commenced with the letter dated 14.07.1994 and ended with thehanding over of possession of the land by appellant No.1 on 09.12.1995to the Corporation and the Corporation issuing a DRC on 02.01.1996granting TDR for the surrendered land. The second time zonecommenced on 20.11.1996 with Mayfair Housing seeking permission ofthe Corporation to develop and maintain the Recreation Ground andended up with the request for additional TDR dated 17.04.1998 beingrejected by order dated 27.11.1998.

40. Once the entire correspondence between the appellants andthe respondents, is split into two time zones, an interesting picture emergestherefrom. This can be summarised as follows:-

(i) What was applied for in Form No.2625 enclosed to the letterof the Architects dated 14.11.1994, was only a DRC for the surrenderof the land. There was no indication in the said letter dated 14.07.1994that appellant No.1 was interested in developing an amenity for thepurpose of claiming Additional TDR. This is why, the answer of appellantNo.1 to the question at Serial No. 17 of the printed Form for the grant ofDRC assumes significance. The question at Serial No.17 and the answerthereto are extracted as follows:- A

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A(17) Whether the reservation is proposed to be built upon as per the plans approved by the concerned Authority as per sub regulation No.6 of Appendix-VII, if so, details thereof.

: Does not arise as the reservation is for R.G.

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(ii) The above answer to question No.17, in Form No.2625submitted by appellant No.1 themselves along with their letter dated14.07.1994, stands in stark contrast, to the answer to the very samequestion in the Form submitted by appellant No.2 along with the letterdated 17.04.1998. Question No. 17 and the answer thereto in the FormCsubmitted by appellant No.2 along with the letter dated 17.04.1998 readas follows:

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(iii) Therefore, it is clear that it is only after appellant No.2, abuilder, entered into the scene that the claim for additional TDR croppedup. As we have stated earlier, appellant No.2 entered the scene only inNovember 1996, first sought permission to develop and then got a PowerEof Attorney executed in his favour on 24.12.1996. Till the entry ofappellant No.2, it was only ‘Worthy Architects’ who were representingthe appellant No.1. This can be seen from other documents also.

(iv) For instance, in the letter dated 08.10.1994, Worthy Enterprisessought permission to develop the Recreation Ground reservation byFsuitably cutting, levelling, filling and terracing etc. But there is no whisperin the said letter about additional TDR;

(v) However, an endorsement is made in the internal departmentnote dated 03.12.1994 asking the officer concerned to “inform thedeveloper that he can develop the RG by availing ATDR.” But itGmust be remembered at this stage that the claim of appellant No.1 forTDR by surrendering the land itself was pending consideration and theoffer for levelling, cutting etc., seem to have been made for the purposeof convincing the Corporation to accept the surrender of land and togrant TDR. The subsequent correspondence show that the work ofHcutting, filling, levelling and terracing was completed, only to enable the GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

Corporation to accept the surrender of land and grant TDR. This will beclear from the letter dated 20.07.1995 issued by the Chief Engineerlaying down certain conditions including the construction of Storm WaterDrains, for the purpose of grant of DRC even for the surrender of land;

(vi) It is only in the letter dated 28.09.1995 sent by WorthyEnterprises that a mention about “additional amenity” is made for thefirst time. Till this letter, there was no mention about any “additionalamenity” and all the activities of development agreed to be undertakenor actually undertaken were for the purpose of convincing the Corporationto accept the land and grant TDR;

(vii) Even internal note dated 30.11.1995 speaks about conditionsfor the grant of DRC towards TDR and not about additional TDR;

(viii) A perusal of the possession receipt dated 09.12.1995 containsa description of the subject matter as follows:- “Grant of DRC in lieu of land….”

This possession receipt notes that a compound wall with a gate has beenprovided and that the D.P. Road with provisions of Storm Water Drainhas been constructed and that the possession of the land is taken subjectto the owner agreeing to rectify the defects in the works. Therefore, it isclear that whatever works were undertaken by appellant No.1 and theirArchitects, were part of the conditions fulfilled to make the Corporationaccept the surrender of land and issue a DRC towards TDR.

(ix) If cutting, filling, levelling, terracing etc., formed part of thedevelopment of the amenity for gaining additional TDR, there was nonecessity for appellant No.1 to have got into a tie-up with appellantNo.2, the partner of Mayfair Housing and that too after the handingover of possession. In fact, as noted earlier, appellant No.2 and MayfairHousing jumped into the fray only after appellant No.1 completed thework of filling, levelling, construction of Storm Water Drains etc., throughtheir Architects and handed over possession on 09.12.1995 and receivedDRC for the surrender of the land on 02.01.1996;

(x) It is interesting to note that the two deeds of Power of Attorneyexecuted by appellant No.1 in favour of appellant No.2 are dated24.12.1996. But even before the said date, Mayfair Housing writes aletter dated 20.11.1996 seeking permission to develop and maintain agarden in the land. At the cost of repetition, it should be stated that if A

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Acutting, filling, levelling etc., constituted the development of amenity forthe purpose of earning Additional TDR, they have all been done evenbefore Mayfair Housing came into the picture. If the development ofamenity had already taken place, there was nothing for Mayfair Housingto do and yet they seek by a letter dated 20.11.1996 permission to developand maintain a garden;B

(xi) A list of works to be carried out for the purpose of maintenanceof the garden annexed to the note of the Deputy Municipal Commissionershows that they were primarily for the maintenance of the existingfacilities; C(xii) Another conundrum evidenced by the documents is that thesecond deed of Power of Attorney dated 24.12.1996 authorises the poweragent to apply for getting permission from the authorised department ofthe Corporation for the construction of Recreation Ground. Some of theclauses contained in the second deed of Power of Attorney empoweringappellant No.2 to seek additional TDR read as follows:-D

“2. To apply for getting the permission from the authorizeddepartment of the Corporation for the construction of theRecreation Ground in accordance to the plans/specificationsas approved by the Municipal Corporation of Greater Bombay.

4. To carry out, from time to time, construction of theRecreation Ground or such other construction/developmentas may be required by the Municipal Corporation of GreaterBombay in phase/phases, in terms of the plans approved by theMunicipal Corporation of Greater Bombay.

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F11. To appoint, from time to time, architects, engineers,surveyors, contractors, R.C.C. Consultants and otherprofessionals, designers and other persons for preparing theplans for construction of the Recreation Ground and sign andsubmit any and all such plans, designs and specificationswith or without applications as the occasion may require toGthe Competent Authorities, Municipal Corporation of GreaterBombay and all other appropriate authorities like the MaharashtraState Electricity Board and Aviation Authorities, etc., for approval.

17. To apply for and obtain from time to time , the amenityTransferable Development Rights/ Development Right CertificateHof the Recreation Ground so constructed, and to submit the

GODREJ AND BOYCE MANUFACTURING COMPANY LTD. THR. ITSCONSTITUTED ATTORNEY v. THE MUNICIPAL CORPORATION OFGREATER MUMBAI [V. RAMASUBRAMANIAN, J.]

Development Right Certificate so issued for the amenity TDRs/DRC to the Municipal Corporation of Greater Bombay, fortransferring and/or endorsement of the same in the name of ourAttorneys and /or in the name of such nominee/nominees and/orsuch person/persons as our Attorneys may decide for an areaamounting to 2,710 square metres equivalent to 29,170.175 sq.ft.”

41. To be precise, all activities undertaken by appellant No.1 throughtheir Architects till the handing over of possession of the land were nottowards the development of amenity and for the grant of AdditionalTDR. All those works were undertaken as part of the effort to make theCorporation accept the surrender of land and to grant TDR.

42. It is only after the entry of Mayfair Housing into the picture,first with a letter of request dated 20.11.1996 to the Corporation todevelop and maintain the Recreation Ground and then with the executionof the Power of Attorney by appellant No.1 on 24.12.1996 that the ideaof developing an amenity and seeking additional TDR had cropped up.But unfortunately, the Corporation made it clear to Mayfair Housingrepresented by appellant No.2 herein that he will not be entitled toAdditional TDR, for the development of Recreation Ground. In the letterdated 23.01.1998 it was made clear to Mayfair Housing that no TDRwill be given to them.

43. It is relevant to point out here that when Mayfair Housingsent a letter dated 20.11.1996 to the Corporation seeking permission todevelop and maintain the RG, they had nothing to do with the surrenderedland. Therefore, they were not entitled either to TDR or to additionalTDR. Realising this difficulty, they appear to have got 2 deeds of PoAfrom appellant No.1 so as to piggy ride on appellant No.1. In fact, thefirst PoA was redundant since by the time it was executed, appellantNo.1 had already obtained DRC for TDR. Yet, the first PoA was towardsTDR and the second PoA was for additional TDR.

44. Therefore, even an independent analysis of the correspondencebetween the parties show that no amenity was developed as required bylaw, by appellant No.1, to be entitled to Additional TDR. In fact, wecould have simply affixed our seal of approval to the finding of factrecorded by the High Court of Bombay in this regard, as the said findingdoes not appear to be perverse. But instead of taking such a short-cutroute, we have gone into greater detail so that the valuable rightsguaranteed to appellant No.1 under Article 300A is not defeated.

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45. Drawing our attention to the photographs of the RecreationGround as it exists, it was argued by the learned senior counsel for theappellants that what was once a barren land, could not have becomewhat it is but for the activities undertaken by the appellants. Therefore,his argument was that if this is not construed as development of amenity,nothing else can be construed so.

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46. But unfortunately for the appellants, whatever they had donethrough their Architects up to the date of handing over possession andgetting the DRC, was not projected by them as the development ofamenity. If all those activities up to the date of handing over possessionconstituted development of amenity, there was no necessity for appellantCNo.1 to give PoA to appellant No.2 to undertake the activity ofdevelopment of amenity and to seek Additional TDR. If the work ofdevelopment of amenity and the lodging of a claim for additional TDRhad been undertaken only after Mayfair Housing entered into the picture,then the appellants became bound by the condition laid down by theDCorporation that appellant No.2 will not be entitled to Additional TDR.

47. Therefore, we are of the view that the High Court was rightin recording a finding of fact that the appellants did not develop theamenity so as to be entitled to additional TDR. Once the finding of factmade by the High Court in this regard is upheld, the appeal shouldEautomatically meet with the fate that it deserves. Accordingly, the appealis dismissed. There will be no order as to costs.

Pending application(s) if any, shall stand disposed of.

Nidhi JainF(Assisted by : Tamana, LCRA)

Appeal dismissed.

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