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2008 DIGILAW 1732 (BOM)

Rajhans Narendra Raut v. State of Maharashtra

2008-12-11

S.A.BOBDE, SWATANTER KUMAR

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ORAL JUDGMENT: (Per : S.A. Bobde, J.) 1. Heard learned counsel for the parties. 2. The petitioners have challenged the Order dated 27.12.2007 passed by the Chief Minister of Maharashtra cancelling the Development Right Certificate granted by the Pune Municipal Corporation in favour of the petitioners and further directing the Pune Municipal Corporation to grant TDR in the petitioners favour at the rate of 4% instead of 100% granted earlier. The subject matter of the dispute is land bearing Final Plot No. 517(Part) and Final Plot No. 523(Part) situate in a Town Planning Scheme and reserved for the purposes of a park. The land is shown in the Hill Top Hill Slope Zone as per the last Development Plan sanctioned for the city of Pune in the year 1987. The area is 66,732 sq. meters. 3. The petitioners, being owners of the said land which was acquired by the Municipal Corporation of Pune, applied to the Corporation for grant of TDR under the Development Control Rules. The respondent No.3 Corporation issued Development Right Certificate bearing Nos. 3434-3447 in favour of the petitioners granting 100% TDR admeasuring 66,372.82 sq. meters on 28.5.2004. The petitioners is said to have paid an amount of Rs.50,12,316/- towards construction of a compound wall for construction protection. 4. Apparently, the grant made in favour of the petitioners and some others were questioned in the State Legislative Assembly and the Government stayed implementation of the TDR. A Public Interest Litigation No. 113 of 2004 was filed in this Court challenging the grant of TDR at the rate of 1.00 to the petitioners. That petition was disposed of on 27.4.2005 recording that there was already a stay. Since the petitioners were aggrieved by the stay or injunction they filed Writ Petition No. 5939 of 2006. This petition was disposed of on 15.1.2007 by an Order of this Court directing the petitioners to make a representation to the respondent No.2 - Secretary Government of Maharashtra and a further direction to the respondent No.2 to pass an appropriate order. The Court granted interim protection to the petitioners that in the meanwhile they may not deposit the Development Right Certificates with the Government. 5. On 13.3.2007, the Chief Minister, Government of Maharashtra heard the petitioners as well as others who had objection to the grant of 100% TDR to the petitioners. The Court granted interim protection to the petitioners that in the meanwhile they may not deposit the Development Right Certificates with the Government. 5. On 13.3.2007, the Chief Minister, Government of Maharashtra heard the petitioners as well as others who had objection to the grant of 100% TDR to the petitioners. The Chief Minister passed an order dated 27.12.2007 holding that the TDR on the land in question shall be 4% having regard to the predominant use of Hill Top Hill Slope Zone on which the land is situate and its reservation as a Park. 6. The learned counsel for the petitioners submits that the Order of the Chief Minister is illegal in that the Government is estopped from reducing the TDR having once granted it. According to the petitioners the land is surrounded by a residential area and therefore the land in question, which may be in No Development Zone, should be treated as eligible for the same TDR for which land in residential zone is available. 7. We are unable to accept either of the contentions raised on behalf of the petitioners. There seems to be a little doubt that the land is reserved for the purposes of a park. 8. D.C.R. No. N-2.4.5 reads as follows:- "The built up area for the purpose of FSI credit in the form of a DRC shall be equal to the gross area of the reserved plot that is surrendered and will proportionately increase or decrease according to the permissible FSI of the zone where from the TDR has originated." Thus the FSI of the Zone from where the TDR is originates affects the proportionate increase or decrease of FSI when the reserved plot is surrendered. DCR NO. M-8 reads as follows: "Hills and hill slopes zone Swimming Pools / Sports and Games, Health Clubs, Cafeteria - Canteen, Amusement Park etc. Note: Maximum floor space area shall not exceed 4% of the total plot with ground floor structure without stilts." It is clear from the above that for the land which is situate in the Hills and Hill Slopes Zone the maximum floor space area cannot exceed 4% of the total plot with ground floor structure. In the circumstances there can be no question of estoppel. 9 . In the circumstances there can be no question of estoppel. 9 . We find no reason to interfere with the Order of the Government which holds that the land is in a Hill Top and Hill Slope area with more than 1:5 steep slope. This character of the land has not undergone any change even though it has been reserved for a park in the Town Planning Scheme of 1987. The TDR in respect of such a land is 4%. The consequent cancellation of Development Right Certificates granting 100% TDR is correct having regard to DCR No. N-2.4.5. There is no merit in the petition, which is hereby dismissed.