RAJHAN NARENDRA ROUT AND OTHERSversusTHE STATE OF MAHARASHTRA, THROUGH SECRETARY, URBAN DEVELOPMENT DEPARTMENT AND OTHERS

                        [2022] 10 S.C.R. 263                             263


          RAJHAN NARENDRA ROUT AND OTHERS                                A
                                  v.
  THE STATE OF MAHARASHTRA, THROUGH SECRETARY,
   URBAN DEVELOPMENT DEPARTMENT AND OTHERS
                   (Civil Appeal No. 4639 of 2012)                       B
                         AUGUST 25, 2022
        [N. V. RAMANA, CJI AND HIMA KOHLI, JJ.]
       Maharashtra Regional Town Planning Act, 1966: s.126 –
Acquisition of land reserved under the Development Plan for public       C
purposes – Issuance of Transferable Development Rights Certificate
against the area of land acquired or surrendered by the land owners
– On facts, appellants-land owners agreed to surrender the subject
land to the respondent No.3-Corporation and opted for grant of
TDR – Said land was reserved for the purpose of a park in the
development plan, however appellant’s case that the subject land         D
was shown as Hill Top/Hill Slope zone in the development plan –
Respondent no. 3 completed the acquisition process and agreed to
grant TDR @ 100% Floor Space Index-FSI – Complaints regarding
grant of excessive TDR – The then Chief Minister of the State
cancelled the grant of TDR @ 100% FSI and reduced it to 4% FSI           E
– Writ petition by the appellant – Dismissed by the High Court – On
appeal, held: Gross injustice caused to the appellants who had
offered their land to the respondent No.3/Corporation on the basis
of a Scheme floated by it proposing to acquire land for public
purpose and grant TDR to the land owners in lieu of the land –
Having decided to award TDR @ 100% FSI to the appellants, later          F
on the respondents reneged from their decision and slashed the
offered TDR to 4% FSI on the premise that the appellants could not
compare their land with the adjoining lands for claiming residential
use since the said land is also in the nature of ‘Hill Top/Hill Slope’
– When to the north and the west of the subject land, residential        G
construction was permissible and till date, the lands falling in ‘Hill
Top/Hill Slope’ zone have not been zoned for being put to any use,
the appellants cannot be expected to wait – Matter has been lingering
in courts for over eighteen years and there have been several rounds
of litigation – Land remained in the possession of the respondent
                                                                         H
                                 263
264            SUPREME COURT REPORTS                     [2022] 10 S.C.R.


A     No.3/Corporation all along, thereby not only depriving the
      appellants of its use but also depriving them of the compensation to
      which they were entitled as long back as in the year 2004 – In
      ordinary course, this court would have been inclined to restore the
      TDR granted to the appellants – However, keeping in mind that
      extensive construction has mushroomed in Pune over the past two
B
      decades and additional construction of over seven lakhs sq. feet, if
      permitted, would cause a severe strain on the civic amenities
      available in the city – Respondent Nos.3 and 4/Corporation directed
      to return the land to the appellants and compensate them @ Rs.1
      crore per year for the loss caused by surrendering per 66,000 sq.
C     mts. of land way back in the year 2004 – Development Control
      Regulations – Regn N-2.4.5.

            Friends Colony Development Committee v. State of
            Orissa and Others (2004) 8 SCC 733 : [2004] 5 Suppl.
            SCR 818 – referred to.
D
                             Case Law Reference

      [2004] 5 Suppl. SCR 818        referred to             Para 19

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4639
E     of 2012.

            From the Judgment and Order dated 13/14.03.2012 of the High
      Court of Judicature at Bombay in Writ Petition No.1790 of 2008.

F           Neeraj Kishan Kaul, Sr. Adv., Ms. Shyel Trehan, Hitesh Jain,
      Pranaya Goyal, Dharav Shah, Rohan Poddar, Ms. Namisha Chadha,
      Dhawal Desai, Ms. Pritha Suri, Vikas Mehta, Advs. for the Appellants.

            Ms. Madhavi Divan, ASG, Shyam Divan, Sr. Adv., Sachin Patil,
      Rahul Chitnis, Shreeyash Lalit, Aaditya A. Pande, Geo Joseph,
G     Ms. Shwetal Shepal, Makarand D. Adkar, Vijay Kumar, Shantanu M.
      Adkar, Ms. Bharti Tyagi, Venkita Subramoniam T. R., Rahat Bansal,
      Likhi Chand Bonsle, Advs. for the Respondents.



H
    RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                    265
          SECRETARY, URBAN DEVELOPMENT DEPARTMENT


        The Judgment of the Court was delivered by                            A
        HIMA KOHLI, J.
       1. The appellants are aggrieved by the judgment dated 13/14th
March, 2012 passed by the High Court of Bombay, dismissing the
challenge laid by them to the order dated 27th December, 2007 passed
by the then Chief Minister of the State of Maharashtra, cancelling the        B
Transferable Development Rights1 Certificate earlier granted in favour
of the appellants @ 100% Floor Space Index2 and upholding the decision
to reduce the TDR granted to the appellants from 100% FSI to 4% FSI.
        2. The subject matter of the dispute in the present appeal is in
respect of a parcel of land, situated in plot No.517 (part) and plot No.523   C
(part) at Parvati, Pune, measuring 66372.82 sq. mts. In the Development
Plan of Pune City, 19873, the said land was reserved for the purpose of
a park. The stand of the appellants is that the subject land was shown in
the ‘Hill Top/Hill Slope’ zone in the Development Plan under the
Maharashtra Regional Town Planning Act, 19964. Respondent No.3/               D
Pune Municipal Corporation5 invoked Section 126 of the Town Planning
Act that permits acquisition of land which is reserved under the
Development Plan, for public purposes and contemplates issuance of
TDR against the area of land acquired or surrendered by the land owners
free of cost. In terms of the aforesaid provision, the appellants agreed to
surrender the subject land to the respondent No.3/Corporation and opted       E
for grant of TDR. The respondent No.3/Corporation completed the
acquisition process in respect of the said land and agreed to grant TDR
to the appellants in terms of the Development Control Regulations6 framed
under the Town Planning Act, in particular Regulation N -2.4.5.
       3. Respondent No.4/Commissioner of the Corporation addressed           F
a letter dated 22nd February, 2001 to the respondent No.2/Secretary,
Urban Development Department 7 of the respondent No.1/State of
Maharashtra seeking a clarification as to the rate at which TDR was to
be granted in respect of the subject land.

1
                                                                              G
  for short ‘TDR’
2
  for short ‘FSI’
3
  for short ‘Development Plan’
4
  for short ‘Town Planning Act’
5
  for short ‘Corporation’
6
  for short ‘DC Regulations’
7
  for short ‘UD Department’                                                   H
266                SUPREME COURT REPORTS                      [2022] 10 S.C.R.


A            4. The Principal Secretary, UD Department wrote to the Advocate
      General of the State on 3rd September, 2003 for obtaining legal advice on
      the above aspect. The said letter highlighted inter-alia the fact that the
      parcel of land in question had not been zoned for ‘Hill Top/Hill Slope’
      and for purposes of deciding the value of TDR for a reserved site which
      does not bear any zoning, zoning of the adjoining land is taken into
B
      consideration by the respondent No.3/ Corporation. The Advocate
      General forwarded his opinion on 22nd September, 2003, stating that if
      the plots adjacent to the acquired/surrendered land were in a residential
      zone, then TDR for the said land was to be awarded at the rate of FSI
      available to the residential plots. On the basis of the said legal opinion,
C     vide letter dated 9th October, 2003, the Under Secretary, UD Department
      informed the respondent No.4/Commissioner of the Corporation that
      since the zoning line was not shown in the Development Plan, the
      applicable TDR for the subject plot shall be @ 100% FSI, as that was
      the rate appliable to the surrounding land.
D            5. On 20th October, 2003, Director, Town Planning, Pune requested
      the State Government to reconsider its decision of awarding TDR @
      100% FSI to the appellants and to pass a revised order awarding TDR
      @ 4% FSI. Respondent No.2/State responded vide letter dated
      12th March, 2004, stating that unlike the Development Plan of Mumbai,
      the Development Plan of Pune does not contain zones and/or zoning
E     lines and as per the Town Planning Scheme of Pune, the subject land
      was to be kept open. The letter further clarified that while granting TDR
      for any land under reservation, TDR is granted as per the permissible
      FSI, irrespective of non-buildable nature of land due to shape and
      accessibility. Reliance was placed on the remarks made by the Advocate
F     General in the opinion given on 22nd September, 2003 and a copy thereof
      was enclosed with the reply.
             6. The chronology of events reveals further that on 26th May,
      2004, the appellants deposited a sum of ¹ 50,12,516/- (Rupees fifty lakhs,
      twelve thousand, five hundred and sixteen) with the respondent No.3/
G     Corporation towards the expenses to be incurred for construction of a
      compound wall to protect the subject land. On 28th May, 2004, respondent
      No.3/Corporation issued Development Right Certificates8 in favour of
      the appellants in lieu whereof, the appellants handed over possession of
      the subject land to the respondent No.3/Corporation.

H     8
          for short ‘DRC’
 RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                          267
 SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


       7. In the meantime, on receiving some complaints regarding grant          A
of excessive TDR to the appellants, the then Chief Minister of the
respondent No.1/State of Maharashtra issued an order dated 19th April,
2004, staying the operation of the letter dated 9th October, 2003.
Aggrieved by the same, the appellants submitted a representation to the
Chief Minister on 24th October, 2005, requesting that the stay order be
                                                                                 B
vacated, which was rejected on 22nd November, 2005. The aforesaid
rejection order was challenged by the appellants before the Bombay
High Court by filing a writ petition registered as WP No.5989/2006. The
said petition was disposed of vide order dated 15th January, 2007 with a
direction to the appellants to submit a representation before the
respondent No.2/Secretary, UD Department, to enable him to pass                  C
appropriate orders in a time bound manner.
      8. In compliance of the aforesaid order, a representation was
submitted by the appellants to the respondents No.1 and 2/State. After
hearing the parties, an order was passed by the then Chief Minister on
27th December, 2007, cancelling the TDR granted @ 100% FSI for the               D
subject land and directing that new TDR @ 4% FSI shall be granted.
       9. Passing of the aforesaid order led to a second round of litigation
between the parties. The appellants filed WP No.1790/2008 before the
High Court of Bombay praying inter-alia for quashing and setting aside
the order dated 27th December, 2007. Vide order dated 11th December,             E
2008, the said writ petition was dismissed by the High Court by observing
that the subject land surrendered by the appellants was classified as
‘Hill Top/Hill Slope’ and there was no reason to interfere with the order
dated 27th December, 2007, granting TDR @ 4% FSI to the appellant
instead of 100%.
                                                                                 F
       10. Aggrieved by the order dated 11th December, 2008, the
appellants filed a Special Leave Petition before this Court registered as
SLP(C) No.6476/2009. Vide order dated 15th September, 2010, the
aforesaid order passed by the Bombay High Court was set aside and
the matter was remanded back for fresh consideration with liberty granted
to the parties to file fresh affidavits and additional documents. Till then,     G
the interim order passed by the Bombay High Court was extended.
       11. It is a matter of record that the appellants did file an additional
affidavit along with additional documents before the Bombay High Court
in opposition whereto, counter affidavits were filed by the respondents.
                                                                                 H
268                SUPREME COURT REPORTS                       [2022] 10 S.C.R.


A     After hearing the parties, vide judgment dated 13/14 March, 2012, the
      High Court once again dismissed the writ petition. It is this order that
      has brought the appellants back before this Court.
              12. Appearing for the appellants, Mr. Neeraj Kishan Kaul, learned
      Senior Advocate has contended that the respondents have committed a
B     gross illegality by arbitrarily cancelling the TDR originally granted @
      100% FSI, thereby making the appellants run from pillar to post for
      relief. The entire litigation has spread over eighteen years during which
      period, the appellants have not only been deprived of the use of the land,
      but also from receiving any compensation in lieu of surrendering the
      land to the respondent No.3/Corporation. Referring to the
C     correspondence exchanged between the UD Department of the
      respondent No.1/State and the learned Advocate General of the State
      as also between the respondent No.1/State and the Director, Town
      Planning, Pune, it has been argued that the appellants are legally entitled
      to receive TDR @100% FSI more so when as per the respondents,
D     TDR is granted as per the permissible FSI, irrespective of the non-
      buildable nature of the land due to the shape and accessibility. Stating
      that the subject land was not demarcated in the Development Plan as
      falling in the ‘Hill Top/Hill Slope’ zone but was reserved as a park, it has
      been asserted that the appellants are entitled to grant of TDR @100%
      FSI.
E
             13. Laying emphasis on the fact that since there is no zoning of
      the subject property, it has been canvassed that the appellants are entitled
      to grant of TDR as would be allottable to the adjacent residential land
      i.e. @100% FSI. Invoking the doctrine of promissory estoppel and
      legitimate expectation, it was asserted that the respondents are estopped
F     from cancelling the TDR granted to the appellants more so when they
      have already acted on the representation of the respondents and have
      surrendered the subject land to the respondent No.3/Corporation as long
      back as in the year 2004, on an assurance that TDR @ 100% FSI would
      be allotted to them.
G             14. As for the observations made in the impugned judgment to the
      effect that the appellants had themselves admitted that the subject land
      is situated in a ‘Hill Top/Hill Slope’ zone and therefore, maximum FSI of
      4% would be permissible in terms of Rule M-8 of the Development
      Control Rules for the Pune Municipal Corporation, Pune, 19829, it was
H     9
          for short ‘DC Rules’
 RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                        269
 SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


argued on behalf of the appellants that an isolated averment made in the       A
writ petition cannot be read out of context and the High Court was
required to take a holistic view of the averments made in the writ petition
coupled with those made in the additional affidavit and the additional
documents filed subsequently by the appellants after the matter was
remanded back by the Supreme Court for reconsideration. Had that
                                                                               B
been done, the High Court would not have arrived at an erroneous
conclusion that the appellants have conceded that the subject property is
situated in ‘Hill Top/Hill Slope’ zone for which TDR of only 4% FSI
would be permissible.
       15. Concluding his arguments, Mr. Kaul, learned Senior Advocate
submitted that even under the Town Planning Act, Section 50(3) and             C
Section 127 state that for determination of the purpose for which a parcel
of land can be used when it is de-reserved or when the acquisition has
lapsed is the purpose, for which the adjacent land can be used and in the
instant case, the subject land is bounded on two sides by residential
areas and therefore, if the respondent No.3/Corporation is not inclined        D
to retain the land, then it ought to be returned to the appellants for being
put to use at par with the adjacent land, along with compensation for
having deprived the appellants of the land and its benefits for the past
over eighteen years.
        16. The aforesaid arguments have been vehemently contested by          E
Mr. Shyam Divan, learned Senior Advocate appearing with Mr. Sachin
Patil, Advocate-on-Record for the respondent No.1/State of Maharashtra,
Ms. Madhavi Divan, learned Additional Solicitor General appearing with
Ms. Bharti Tyagi, Advocate-on-Record for the respondent No.2/
Secretary, UD Department of the Government of Maharashtra and
Mr. Venkita Subramoniam T.R., Advocate-on-Record, appearing for the            F
respondent No.3/Corporation and respondent No.4/Commissioner for
the Corporation. The stand of all the respondents is common. They have
sought to repel the arguments advanced on behalf of the appellants that
the respondents cannot be permitted to retract from their earlier decision,
holding that the appellants are legally entitled to receive TDR @ 100%         G
FSI particularly, when the said decision was based on an opinion given
by the learned Advocate General of the State of Maharashtra, by
contending that the appellants cannot be permitted to take undue
advantage of factual errors made by the then Secretary, State of
Maharashtra in the letter dated 3rd September, 2003 that forms the basis
                                                                               H
270            SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A     of the opinion given by the learned Advocate General on 22nd September,
      2003. It was urged that the Secretary, UD Department, Government of
      Maharashtra committed an error in noting the boundary zones of the
      subject land and observing that it is ‘Hill Top/Hill Slope’ zone towards
      three sides and a residential zone on the fourth side, whereas the
      residential zone is situated at a far distance from the subject land and is
B
      neither adjacent nor contiguous thereto.
             17. For making the aforesaid submission, learned counsel for the
      respondents alluded to the Development Plan of Pune that defines ‘Hill
      Top/Hill Slope’ zones, Rule N-2.4.5 of the DC Rules that provides that
      an owner would be entitled to FSI credit in the form of DRC as per
C     permissible FSI of the zone from where the TDI has originated and Rule
      14.2 that provides for zonal FSI as per Appendix-M. Arguing that Rule
      M-8 of the DC Rules specifically deals with ‘Hill Top/Hill Slope’ zone
      and provides for a maximum FSI of 4% for such a zone, it was submitted
      that there was no logic in granting FSI of the adjacent land to the
D     appellants, when there is a specific provision in the DC Rules and the
      Development Plan relating to ‘Hill Top/Hill Slope’ zones. It was thus
      stated that a factual inaccuracy in the letter soliciting an opinion from
      the learned Advocate General resulted in a legally incorrect opinion and
      this fact was highlighted by the Director, Town Planning in his letter
      dated 20th October, 2003, which ultimately led to cancellation of the
E     TDR granted @ 100% to the appellants in respect of the subject land
      and reducing it to the 4% FSI.
             18. The respondents have also sought to repel the submissions
      made on behalf of the appellants that though the State of Maharashtra
      has implemented the Unified Development Control and Promotion
F     Regulations from 2nd December, 2020, it has deliberately not incorporated
      the concept of ‘Hill Top/Hill Slope’ zone, which has been kept in
      abeyance. It was submitted that the issue of ‘Hill Top/Hill Slope’ zone
      has been kept in abeyance in the new Regulations only to enable the
      State to examine the said issue at greater length.
G            19. On his part, learned counsel for the respondents No.3/
      Corporation and 4/Commissioner to the Corporation added that if the
      subject land is granted TDR @100% FSI, it would translate into
      construction of 7,14,422 sq. feet area and in that event, the Corporation
      will have to grant 100% TDR for all the proposed acquisitions, which
H     would result in construction of over two crores sq. feet area. He sought
     RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                  271
     SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


to explain that in such an event, the respondent No.3/Corporation will       A
not be in a position to provide civic amenities like water, sewage etc.
when the city is already facing acute problems regarding availability of
such facilities. In support of his submission that Development Plan of
city is extremely important and ought to be regulated in line with Town
Planning principles, reliance has been placed on Friends Colony
                                                                             B
Development Committee v. State of Orissa and Others10.
      20. We have carefully considered the arguments advanced by
learned counsel for the parties, perused the impugned judgment and the
documents placed on record. The facts of the case are not in dispute.
The core issue that requires to be answered in the instant case is whether
the subject land surrendered by the appellants to the respondent No.3/       C
Corporation would entitle them to grant of TDR @ 100% FSI or @ 4%
FSI.
       21. It is not in dispute that under the Scheme floated by the
respondent No.3/Corporation, wherever land was to be acquired for
development schemes in Pune, land owners could opt for the Scheme            D
and in lieu of the surrendered land, they would be entitled to grant of
TDR as compensation. Admittedly, the appellants had surrendered the
subject land to the respondent No.3/Corporation in expectation of grant
of TDR. Since there was some confusion within the department with
regard to the rate at which the TDR was to be granted in respect of the      E
subject land, a clarification was sought by the respondent No.4/
Commissioner of the Corporation from the Principal Secretary, Town
Planning Department, Government of Maharashtra. The letter dated
14th May, 2003 addressed by the respondent No.4 refers to boundation
of the subject land and their zoning as below :
                                                                             F
                “But, according to Pune Municipal Corporation sanctioned
          Development plan in the year I957 the Final Plot No. 523 (Part)
          and 517 (Part) was bounded and their zone was as follows :
          On or Towards     :     By Survey No, 121,1,22 (Canal'
          North                   and PMC waterworks, PSP and                G
                                  residential Zone)
          On or Towards     :     By Survey No, 103, 104 (Hilltop

10
     (2004) 8 SCC 733                                                        H
272             SUPREME COURT REPORTS                             [2022] 10 S.C.R.


A            South                       Hill Slope and PSP Zone and
                                         residential Zone at certain distance.)
             On or Towards         :     By Survey No, 96, 97 (Hill top Hill
             East                        slope and PSP Zone)
B            On or Towards         :     By Survey No. 106 (Hill top Hill
             West                        slope Zone)
                   Therefore in the proposal under subject with how much
             FSI Index TDR shall be paid, in respect suspicion has been raised.
             Hence it is requested to issue order of Government in this respect.”
C
             22. For issuing necessary clarification, the UD Department of the
      respondent No.1/State wrote a letter to the Advocate General of the
      State seeking an opinion as to the value of the TDR to be granted to the
      appellants in lieu of their land. In the said letter, it was clarified that Rule
      N-2.4.5 of the DC Rules prescribes that the built-up area for the purpose
D
      of FSI credit in the form of TDR shall be equal to the gross area of the
      reserved plot that is surrendered to the Corporation and that it will be
      proportionately increased or decreased, according to the permissible FSI
      of the zone wherefrom the TDR has originated. The letter further clarified
      that the expression “according to the permissible FSI of the zone”
E     appearing in Regulation N-2.4.5 of the DC Regulations, is significant
      and that the said Rule has been lifted from the Development Control
      Regulations for Greater Mumbai, 1991. But unlike Mumbai, where each
      and every parcel of land has sites reserved for public purpose, that is not
      the case in respect of the city of Pune, where the sites reserved for
      public purpose are not included in any planning zone and it is in this
F
      background that the issue of awarding FSI credit requires to be decided.
      The relevant para of the letter dated 03.09.2003 issued by the Principal
      Secretary, UD Department is extracted as under :-
             “03. ……In such a situation, in the absence of any zoning being
             assigned to reserved sites, the meaning of expression permissible
G            FSI of the zone where the TDR has originated “cannot be precisely
             applied in case of Pune Development Plan, unlike in the cases
             from Development Plan of Mumbai.
             04. While deciding the value of TDR for reserved sites (which do
             not bear any zoning), the Pune Municipal Corporation takes into
H
 RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                      273
 SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


      consideration the zoning of the adjoining land in the vicinity of      A
      reserved sites and accordingly the Corporation awards TDR. Thus,
      for a site reserved for “Park” and surrounded by Residential/
      Commercial Zone, Pune Municipal Corporation grants TDR to
      the FSI value admissible for Residential/Commercial zone.
      However, in the instant case, the land under reference is surrounded
                                                                             B
      by following planning zones:
      To North     -      Residential Zone
                          Public-Semi Public Zone. (In which buildings
                          can be constructed with FSI that is available
                          in Residential Zone)                               C
      To South     -      Municipal Corporation limit beyond which is
                          Pachgaon Kurar Park
      To East      -      P.S.P. Zone & Hill Top Hill Slope Zone.
      To West      -      Hill Top Hill Slope Zone. (HT /HS)                 D
                          Canal and further to which Residential/Public
                          utility development (FSI 1.00)”
     23. We may next extract below the opinion given by the learned
Advocate General of the respondent No.1/State of Maharashtra :
             “This refers to your letter dated 3rd September, 2003 on        E
      the above subject. Interestingly, the expression “zone” is not used
      in Section 14 which deals with the contents of a Regional Plan, or
      in Section 22 which deals with the contents of a Development
      Plan. It however finds inclusion in Section 22 (A) which was
      brought in by the Maharashtra Act, 39 of 1994. The expression          F
      “zone” apparently came to be used for the first time in the
      Development Control Regulations from Mumbai in 1991.
             However the spirit of the Act is very clear. For instance, in
      Section 50 which deals with deletion of reservation of designated
      land, sub-Section 3 provides that such designated land when            G
      released from such designation or reservation shall become available
      to the owner for the purposes of development as is otherwise
      permissible in the case of adjacent land in the relevant plan.
      Obviously, Rule N-.2.45 has to be read on a similar basis. The
      idea of giving TDR or a Development Rights certificate, is to
                                                                             H
274             SUPREME COURT REPORTS                           [2022] 10 S.C.R.


A            compensate the owner for the deprivation of his property by giving
             him development rights in respect of the plot which can be used
             elsewhere. It would have to be on the basis that the plot would
             otherwise have been developable having regard to the user of the
             adjacent plots. The adjacent plots are in the residential zone and
             therefore the approach in paragraph 5 of your letter is correct
B
             and normal FSI available for the residential zone could be made
             available.”
              24. What has been sought to be urged by learned counsel for the
      respondents is that the aforesaid opinion is premised on wrong information
      furnished by the Department. Admittedly, on discovering the purported
C     factual error, the Department did not go back to seek a fresh opinion of
      the learned Advocate General. Instead, the aforesaid opinion was duly
      accepted and acted upon by the respondents and based thereon, vide
      letter dated 28th May, 2004, respondents No.3 and 4/Corporation issued
      TDR in favour of the appellants, permitting FSI @ 100% in lieu of the
D     parcel of land surrendered by them. Contemporaneously, physical
      possession of the land was also taken over from the appellants who paid
      over ` 50,00,000/- (Rupees fifty lakhs) to the respondents No.3 and 4/
      Corporation towards construction of the compound wall and for levelling
      of the land.
E            25. So far so good. Trouble started after lapse of one year when
      the respondents decided to cancel the TDR granted to the appellants
      and proceeded to reduce it from 100% FSI to 4% FSI by observing that
      there was no residential development in the land adjoining the subject
      land and that there was an adjoining canal and ‘Hill Top/Hill slope’ zone.
      Therefore, though residential use is permissible adjoining the subject land,
F     even then, the site would remain as ‘Hill Top/Hill Slope’ zone in nature,
      making it permissible to award TDR only @ 4% FSI, for such a zone.
             26. In the order impugned before the High Court, no effort was
      made to explain as to why the opinion taken by the respondent No.1/
      State had to be brushed aside. No explanation has been offered that
G     justified disagreement with the said opinion; no effort was made by the
      State to approach the learned Advocate General for obtaining a fresh
      opinion on the plea that the letter seeking the earlier opinion, had furnished
      erroneous facts. In all this back and forth between respondent Nos.1
      and 2/State and the respondent Nos.3 and 4/Corporation, it is the appellants
H     who have been left high and dry. They had surrendered the subject land
 RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                        275
 SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


to the authorities as far back as in the year 2004 on the expectation of       A
being granted TDR, which has still not materialized. In these eighteen
years, the respondents have continued to retain the possession of the
subject land. In the course of arguments advanced before this Court, it
was specifically enquired from learned counsel for the respondents that
the land having been surrendered for a public purpose, whether the same
                                                                               B
has been put to any such use, the Court was first informed that a reservoir
has been built on the land; later, it was stated that the status of the land
has remained the same as it was when it was surrendered.
       27. In view of the above, we are of the opinion that gross injustice
has been caused to the appellants who had offered their land to the
respondent No.3/Corporation on the basis of a Scheme floated by it             C
proposing to acquire land for public purpose and grant TDR to the land
owners in lieu of the land. Having decided to award TDR @ 100% FSI
to the appellants, later on the respondents reneged from their decision
and slashed the offered TDR to 4% FSI on the premise that the appellants
could not compare their land with the adjoining lands for claiming             D
residential use since the said land is also in the nature of ‘Hill Top/Hill
Slope’. We may note that the boundation of the land as was mentioned
by the Principal Secretary, UD Department to the learned Advocate
General in the communication dated 3rd September, 2003, has been
specifically stated to be residential zone towards the North where
buildings could be constructed with FSI that is available in the residential   E
zone. Yet again, towards the west of the subject plot, is the ‘Hill Top/Hill
Slope’ zone and a canal further to which residential/public utility
development with FSI of 1.00 was available. When to the north and the
west of the subject land, residential construction was permissible and till
date, the lands falling in ‘Hill Top/Hill Slope’ zone have not been zoned      F
for being put to any use, the appellants cannot be expected to wait till
eternity for the respondents to take a decision in this regard.
       28. It is noteworthy that the appeal was taken up for hearing on
seven occasions, between February, 2022 to May, 2022 and on each
date, the respondents were directed to resolve the matter amicably with        G
the appellants instead of bringing it to a head. This Court had clearly
observed on 4th May, 2022 that it was not persuaded by the arguments
advanced by learned counsel for the respondent Nos.3 and 4/Corporation.
As for the respondent Nos.1 and 2/State of Maharashtra, learned counsel
have stated on instructions that it will take time for the State Government
                                                                               H
276            SUPREME COURT REPORTS                        [2022] 10 S.C.R.


A     to take a definite decision in the matter. In the said circumstances, we
      had proposed the following two solutions to the respondents for settling
      the matter once and for all :
            (a) to grant Transferable Development Right Certificate (TDRC)
                to the petitioner as was given to the petitioner on 28-5-2004;
B               or
            (b) to acquire the land and pay compensation to the petitioner in
                accordance with the Right to Fair Compensation and
                Transparency in Land Acquisition, Rehabilitation and
                Resettlement Act, 2003.
C           29. On the next date of hearing, i.e., 10th May, 2022, after taking
      note of the order passed on the earlier date, the following proceedings
      were recorded :
            “3. Learned Senior counsel appearing on behalf of the appellants
            submits that vide Notification dated 05.01.1987, the Development
D           Plan of Pune City, 1987 was sanctioned and under the said Plan,
            the land in dispute was shown as reserved for park. An amendment
            was made to the Maharashtra Regional Town Planning Act, 1966
            and the Development Control Rules. Section 126 of the amended
            Act permitted acquisition of lands which were reserved under the
E           Development Plan for public purpose and further, provided for
            issuance of Transferable Development Rights (TDR) in lieu of
            compensation against the area of land acquired or surrendered
            free of cost. Learned Senior counsel further submits that the Chief
            Minister vide order dated 27.12.2007 had directed that the TDR’s
            already granted to the appellants at the rate of 100% be cancelled
F           and had further directed that new TDRs be issued to the appellants
            at the rate of 4% instead of 100%.
            4. Learned counsel appearing on behalf of respondent No.3 –
            Municipal Corporation of Pune submits that the order impugned
            has been passed by the State Government and for any modification
G           or implementation of the said order, permission has to be given by
            the State Government but the State Government is un-willing to
            agree to either of the two proposals which had emanated during
            the course of hearing.
            5. On the other hand, learned counsel appearing on behalf of the
H           respondent – State submits that it has already been suggested to
 RAJHAN NARENDRA ROUT v. THE STATE OF MAHARASHTRA, THR.                       277
 SECRETARY, URBAN DEVELOPMENT DEPARTMENT [HIMA KOHLI, J.]


      the Municipal Corporation of Pune to either auction the land in         A
      question under the new Act or return the said land to the appellants.
      6. In view of the ongoing tussle between the Municipal Corporation
      of Pune and the State Government, we are of the view that some
      responsible officer of the State Government should be called upon
      to appear before this Court personally and explain the stand taken      B
      by the State Government.
      7. We, accordingly, deem it appropriate to direct the Chief
      Secretary, State of Maharashtra to personally appear before this
      Court and apprise us about the stand taken by the State
      Government in compliance with the order passed by this Court on         C
      04.05.2022.
      8. At this juncture, learned counsel appearing on behalf of the
      State of Maharashtra submits that it is the Principal Secretary,
      Urban Development Department who is competent to take a final
      decision in this regard and not the Chief Secretary.                    D
      9. In view of the above, we direct the Principal Secretary (Urban
      Development Department), Government of Maharashtra to
      personally appear before this Court on 19.05.2022 and explain
      the steps taken by the State Government in compliance with the
      order passed by this Court on 04.05.2022.”                              E
       30. The Principal Secretary, UD Department, Government of
Maharashtra did appear before this Court on the next date but no practical
solution was offered. Instead, the matter was sought to be argued to the
hilt yet again and the respondent No.2/State and the respondent Nos.3
and 4/Corporation kept on passing on the buck to each other for the           F
impasse.
       31. Having considered the factual matrix of the present appeal
where the matter has been lingering in courts for over eighteen years
and there have been several rounds of litigation, three before the High
Court and two before this Court in respect of the subject land, which has
                                                                              G
all along remained in the possession of the respondent No.3/Corporation,
thereby not only depriving the appellants of its use but also depriving
them of the compensation to which they were entitled as long back as in
the year 2004, we are unable to concur with the impugned judgment. In
ordinary course, we would have been inclined to restore the TDR granted
to the appellants by the respondent No.3/Corporation on 28 th May, 2004.      H
278              SUPREME COURT REPORTS                         [2022] 10 S.C.R.


A     However, keeping in mind the submission made by learned counsel for
      the respondent Nos.3 and 4/Corporation that extensive construction has
      mushroomed in Pune over the past two decades and additional
      construction of over seven lakhs sq. feet, if permitted, will cause a severe
      strain on the civic amenities available in the city, it is deemed appropriate
      to direct the respondent Nos.3 and 4/Corporation to return the land
B
      acquired by it to the appellants within four weeks. Once the possession
      is restored, the appellants shall be permitted to use it for residential
      purposes. Further, the respondents are directed to compensate the
      appellants @ Rs.1 crore per year for the loss caused to them on
      surrendering per 66,000 sq. mts. of land way back in the year 2004. The
C     entire exercise shall be completed within a period of three months from
      the date of this order.
            32. The impugned judgment is, accordingly, quashed and set aside
      and the present appeal is allowed on the above terms.

D     Nidhi Jain                                                     Appeal allowed.
      (Assisted by : Shashwat Jain, LCRA)




E




F




G




H