THE MUNICIPAL CORPORATION OF GREATER BOMBAY &ANR.versusYESHWANT JAGANNATH VAITY & ORS.

                   [2011] 5 S.C.R. 653


THE MUNICIPAL CORPORATION OF GREATER BOMBAY                  A
                   &ANR.
                            v.
         YESHWANT JAGANNATH VAITY & ORS.
            (Civil Appeal No. 2575 of 2011)
                                                             B
                    MARCH 17, 2011
        [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

     Development Control Regulation for Greater Bombay,
1991 """Regulation 3(7) ~ Transfer developme'fJt rights (TOR) C
- Amenity - Order by High Court directing Municipal
Corporation of Greater Bombay (MCGB) to grant additional
transfer development rights and to issue development rights
certificate equivalent to 85 % of the area of a courtyard
developed by the respondents in favour of MCGB - D
Correctness of - Held: As per the definition qf 'amenity' under
Regulation 3(7) asphalting the courtyard amount to an
amenity - Clauses 5 and 6 iri Appendix VII does not give a
discretion to the Municipal Authorities to scale down the
grantable TOR - Thus, the High Court was right in granting E
100% TOR as against the development of courtyard by
asphalting the same - The very stance on the part of the
MCGB to provide 15% of additional TOR for asphalting the
courtyard would contain an admission that asphalting of the
courtyard would amount to an 'amenity' - Once it is held as F
an amenity, there is no question of refusing the right of
equivalent TOR.
   ·,

    In the instant case, respondents filed writ petition
claiming benefit of additional transfer development rights
(TOR) from the Development Control Regulation for            G
Greater Bombay, 1991 as they had developed no.t only
the export office of the Municipal Corporation of Greater
Bombay (MCGB) but also done the asphalating work of
the courtyard in accordance with the Development
                           653.                              H
    654      SUPREME COURT REPORTS            [2011] 5 S.C.R.


A Control Regulation for Greater Bombay, 1991. The High
  Court allowed the petition.

        The question which arose for consideration in this
    appeal was whether the High Court was right in directing
    the appellant-Municipal Corporation of Greater Bombay
8
    to grant additional transfer development rights and to
    issue further development rights certificate equivalent to
    2646.14 sq. metres (85 % of the area of a courtyard)
    developed by the respondents in favour of the appellants.

C         Dismissing the appeal, the Court
         HELD: 1.1 In view of the unequivocal declaration of
    law by this Court in the case of *Go1 'rej & Boyce
    Manufacturing Co. Ltd. v. State of Maharashtra and Ors.
    that construction of the road was undoubtedly an
0
     'amenity'; that under the express language of Section
    126(1)(b) of the Maharashtra Regional and Town Planning
    Act read with Para 6 of the Appendix VII, the use of the
    word 'equivalent' would entitle the owner of the building
E   to 100% for the construction of an amenity at owner's
    cost; and that a subsequent circular would be of no
    consequence and would not have the effect of overriding
    the provisions of the Regulations as envisaged in
    Appendix VII and clauses 5 and 6, law seems to be fully
    settled against the appellants. The submission that
F   asphalting of the courtyard could not be said to be an
    "amenity", cannot be accepted as the very stance on the
    part of the MCGB to provide 15% of additional TOR for
    asphalting the courtyard would contain an admission that
    asphalting of the courtyard would amount to an amenity.
G   Had it not been so, the MCGB could have conveniently
    said that it would not provide even 1% of additional TOR
    to the respondents. Further, considering the definition of
    "amenity" under Regulation 3(7) of the Development
    Control Regulation for Greater Bombay, 1991, which
H   includes open spaces, parks, recreational grounds, play
MUNICIPAL CORPORATION OF GREATER BOMBAY v.               655
         YESHWANT JAGANNATH VAITY

grounds etc., asphalting tl'le courtyard would certainly        A
amount to an amenity. The building offered to. be
constructed by the respondents· was an export office.
Considering the overall situation prevailing in Mumbai,
the asphalting of the whole courtyard and thus, providing
parking lot.would certainly .amount to an. amenity. After       B
all, the office, by its very nature, would attract trucks and
other vehicles. In the absence of an asphalted large area,
the office could possibly not be a feasible idea. [Para 17]
[670-C-G] ·
     1.2 The submission that the respondents had                C
specifically agreed in the letter dated 22.2.1995 and more
particularly in terms of Para 4 thereof that the Municipal
Corporation would grant the benefit of TOR in respect of
the concrete/asphalted surface area around the Export
Office building as and when the quantum of such TOR             D
is decided by the Municipal Commissioner; and that
thereby the respondents had compromised their rights
and had left it to the discretion of the Municipal
Commissioner and, therefore, they could not turn around
and say that it was notfor the Municipal Commissioner           E
to decide the quantum as per his own discretion, is
clearly incorrect since the day when this letter was
signed, the circular dated 09.04.1996 was nowhere in
existence. Therefore, the respondents had no reason to
believe that the Municipal Commissioner would decide to         F
scale down the entitlement which they legitimately
expected because of clauses 5 and 6 in Appendix VII. The
said letter merely provided that the quantum could be
decided in terms of the area of courtyard to be developed
and the grant of TOR would depend upon as to whether            G
that much area was fully developed as per the
satisfaction of the Municipal Commissioner. The scope
of Para 4 could not be taken beyond this. [Para 18] (671-
A-E]
    1.3 The appellant submitted that the land owner was         H
   656     SUPREME
             ·,,.  COURT REPORTS             [2011) 5 S.C.R.
                                                               '
                "
A to get the TOR, only on the land being levelled to the
  surrendering ground level and a 1.5 metres high
  compound wall was 'Constructed with a gate, at the cost
  of the owner. That may be so; however, the agreement
  on the part of respondents to construct such a
B compound wall and gate and to do the levelling of the
  land before handing over the land admeasuring 3500 sq.
  metres, would be of no consequence in the instant case
  is concerned. The difference in the phraseology in
  clauses 5 and 6 i.e. the word 'equal' having been used in
C clause 5 and the word 'equivalent' having been used in
  clause 6 would also be of no consequence as the same
  has been concluded by the ruling of this Court in Godrej
  & Boyce's case against the appellants, and, therefore, the
  submission that it gives a discretion to the Municipal
  authorities to scale down the grantable TOR, cannot be
0
  accepted. More. so, in Godrej & Boyce's case the Court
  clearly held that in a circular, the Corporation could not
  have created divisions in the total amenities in the sense
  that it could not have chosen to grant 100% of additional
  TOR in favour of some amenities and 15% in case of
E some others. [Paras 19, 20] [671-F-H; 672-A-C]
       1.4 The submission regarding the value of
  construction vis-a-vis the grant of TOR, is not open in
  view of the unequivocal finding given on that question
F in the ruling in Godrej & Boyce's case. The suggestion
  that in asphalting of the courtyard there was no element
  of development as the term 'development' meant
  building, engineering, mining or other operations in, or
  over, or under land or the making of any material change
G In any building or land, is wholly incorrect, as had this
  not been development, the MCGB would not have agreed
  to provide even 15% of the TOR therefor, [Paras 21] [672-
  0-F]
     1.6 In the instant case, the question was whether .it
H was an amenity. Once it is held as an amenity, there
  MUNICIPAL CORPORATION OF GREATER BOMBAY v. 657
           YESHWANT JAGANNATH VAITY

.would be no question of refusing the right of equivalent          A
 TOR therefor. The circular dated 09.04.1996 was issued
 "prior to'' completion of the construction of. the export
 office by respondents 1 to 3 and asphalting of the
 courtyard and handing over'of the possession by them.
 Under any circumstance, the circular dated 09.04.1996             B
 was issued much after the compromise in the writ petition
 and the issuance of letter of intent dated 22.02.1995. [Para
 22] [672-H; 673-A-C]

    1.5 The High Court was right in allowing the writ              C
petition and granting 100% TOR as against the
development of courtyard by asphalting the same. There
are no merits in the appeal. [Para 24] [673-0]
    *Godrej and Boyce Manufacturing Co. Ltd. v. State of
Maharashtraand Ors. 2009 (5) SCC 24; Pune Municipal                D
Corporation v. Promoters and Builders Assn. 2004 (10) SCC
796 - referred to.
                      Case Law Reference:
     2009 (5) sec 24           Referred to.          Para 9        E

     2004 (10) SCC 796       · Referred to.          Par 15
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2575 of 2011.
                                                                   F
    From the Judgment and Order dated 18.6.2009 of the High
Court of Bombay in WP No. 634 of 2004.

    U.U. Lalit and Atul Yeshwant Chitale, Suchitra Atul Chitale,
Sunaina Dutta, Snigdha Pandey, Nishtha Kumar, for the              G
Appellants.

      Ashok H. Desai and Krishnan Venugopal, Amit Dhingra,
Kritika Chanderana and Aman Leekha (for Dua Associates)
for the Respendents.
                                                                   H
    658      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A         The Judgment of the Court was delivered by

          V.S. SIRPURKAR, J. 1. Leave granted.

       2. Whether the High Court was right in directing the
  appellant The Municipal Corporation of Greater Bombay
B (hereinafter called "the MCGB" for short) to grant additional
  transfer development rights (hereinafter called "TOR" for short)
  and to issue further development rights certificate (hereinafter
  called "DRC" for short) equivalent to 2646.14 sq. metres (85
  % of the area of a courtyard).developed by the respondents in
C favour of the appellants is a question that fall for consideration
  in this appeal.

          3. By the impugned judgment, the Bombay High Court
    under Clause 6 of Appendix VII to the Development Control
0   Regulation for Greater Bombay, 1991 (hereinafter called "the
    Regulations" for short) has issued such a direction in a writ
    petition filed by the respondents herein.

    Factual panorama

E      4. The respondents herein owned 10,000 sq. yards of land
  in Mulund village. A development plan was sanctioned for
  Greater Bombay in the year 1957. Mulund comes within the
  area of Greater Bombay. The said land was shown as
  reserved for public purpose of construction of a godown.
F Ordinarily, such land is acquired under the provisions of Land
  Acquisition Act, 1894. However, the respondents and the four
  other co-owners entered into a private agreement to hand over
  possession of 10,000 sq. yards to the MCGB for the temporary
  use as a truck terminal. The land was also to be used as a town
G duty office. The possession was handed over on 18.9.1961. An
  agreement was entered into between the respondents and the
  other co-owners with the MCGB wherein it was agreed that the
  respondents and the other co-owners would receive
  compensation of Rs.90,000/-. The land, though, was given in
H possession much earlier and there was an agreement dated
 MUNICIPAL CORPORATION OF GREATER BOMBAY v.                   659
 YESHWANT JAGANNATH VAITY [VS. SIRPURKAR, J.]
16.12.1967, it was not put to any use much less for the public        A
purpose for which it was intended to be acquired. The land was
not put to any other use also right till November, 1998. Hence,
the-respondents filed a writ petition No.3437of1988 interalia
praying therein for a declaration that the land was not liable to
be acquired. The writ petitioners demanded back the                   B
possession of 10,000 sq. yards. There was a compromise
effected in this writ petition by order dated 10.3.1992 between
the parties. Under the same, the MCGB agreed to acquire and
retain the area of 3500 sq. metres for the purpose of
establishing ana constructing an export octroi office. The            c
consent terms provided that appellant Nos.1 and 2, namely,
MCGB and its Chief Engineer would hand over the remaining
area to the respondents herein and the respond~nts herein
would refund the amount of Rs.90,000/- with interest therein @
10 % per annum from the date of payment till the date of re-          D
payment to the MCGB. l_t was further provided in the consent
terms that the respondents herein would be entitled to IDR to
the extent provided in the Regulations in respect of 3500 sq.
metres in lieu of the payment of Rs.90,000/- with interest. It was
further provided in the consent terms that the MCGB would
grant TDR in lieu of the said land measuring 3500 sq. metre$
                                                                      E
subject to the compliance of various requirements by the
petitioners as required under Regulation 34, Appendix VII of
the Regulations. It was specifically provided by Clause 9 of the
consent terms that if the petitioners constructed and developed
export office for the MCGB on the aforementioned area of 3500         F
sq. metres and handed over the premises to the MCGB free
of cost, the respondents would be entitled to the benefit" of
additional transferable development rights as per Regulation
6 of Appendix VII. The precjse wordings of Clause 9 to the
consent terms are as under:                                           G

      "9.   The petitioners shall be entitled to the benefit of
            Additional Transferable Development Rights
            (hereinafter referred to as 'ATOR'), if the petitioners
            are asked by the respondent No.1 to construct and         H
    660     SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A              develop the Export Office for the Corporation on the
               land so surrendered at their own costs and as per
               the plans and designs and specifications of the
               respondent No ..1 and hand over the premises so
               constructed to the respondent No1 free of costs as
B              per the sub-regulation 6 of Appendix VII of the
               Development Control Rules for Greater Bombay,
               1991."

       5. A letter was addressed by the Constituted Attorney of
C the respondents dated 18.4.1992 calling for a joint survey and
  demarcation and the engineer of the MCGB was requested to
  inform the details and specifications of the work which the
  present respondents would have to carry on to claim the TDR
  as per paragraph 4 of the consent terms and the additional TDR
  as per paragraph 9 of the consent order quoted above. The
D respondents were informed on 25.4.1992 that they would have
  to carry out the work of leveling the plots, construction of
  compound wall .on three sides with gates, development of yard
  with asphalting and the construction of an export office building
  as per the specifications submitted by the Deputy C.E.(P & D)/
E Municipal Architect by his communica,tion dated 20.9.1991.
  The Constituted Attorney was directed to approach the
  concerned authority.

       On 25.5.1992, the Architect of the respondents made an
F application to the MCGB for grant of TDR in respect of 3500
  sq. metres of area already surrendered by the respondents to
  appellant No.1. The petitioners also paid the sum of Rs.3 lakh
  15 thousand (principal amount of Rs.90,000/- and the interest
  @ 10 % per annum) from the date of payment till the date of
G re-payment as agreed to in the consent terms.

       On 22.01.1993, the respondents addressed a letter to the
  Assessor and Collector asking for further details relating to the
  work to be carried out on the said 3500 sq. metres of land. On
  5.3.1993 the Assessor and Collector of the appellant No. 1
H herein addressed a letter to the respondents herein enclosing
 MUNICIPAL CORPORATION OF GREATER BOMBAY v. 661
 YESHWANT JAGANNATH VAITY {V.S. SIRPURKAR, J.]

a sketch plan of for the proposed export office together with A
development of yard. It was informed in the said letter that as
per the directions cif the Municipal Commissioner, additional
TOR in .lieu of the development of export yard and construction
of office would be granted to the respondents. The respondents
were also requested to expedite the work of construction of B
export office.                           · ·

     On 7.6,1993, a.letter was addressed by Municipal Architect
to the respondents herein enclosing specifications for
asphalting, It was mentioned that this work to be carried out C
under the supervision of Municipal engineer:
                                          ·,
     Sy a further letter dated 23.6.1993, the Chief Engineer
informed the petitioners that the development right certificate
would. be issued after compliance with certain additional
requirements contained in the said letter. On 13.9.1993, the D
respondents herein wrote a letter to the Assistant Engineer
informing about the various compliances and requesting for
issue of development right certificate in respect of 3500 sq.
metres.

     On 9.2.1994, it was informed by· a letter that the             E
respondents' right to grant development certificate would be
considered after they commence the work of construction of the
export office. Further on 22.2.199.5, th~ Chief Engineer
addressed a consent letter to the respondents certifying his no
objection for•constructing the export office building s.ubject to   F
the terms and conditions mentioned in the said letter. Condition
Nos: 1 and 4 in the said letter are relevant. for. the issued
involved. They are as under:-

      "1.   That you will construct the Export Office building as G
            per the plans & specifications of the Municipal
            Corporation enclosed herewith and the· Municipal
      ''·   Corporation will gr.ant the Transferable
            Development Right equivalent to the builtup area
            of the Export•Office.                    ·            H
        662         SUPREME COURT REPORTS                [2011] 5 S.C.R.


    A          4.    That you will concrete/ asphalt the portion of the
                     Export Office Yard around the Export Office building
                     as per the specifications of MCGB and as given by
                     the Chief Engineer (Roads & SWD) of the MCGB.
                     The work will be carried out under the Municipal
    B                supervision and certified by the Competent
                     Authority. The Municipal Corporation will grant the
                      benefit of Transferable Development Right in
                      respect of the concrete/asphalted surface area
                      around the Export Office building as and when the
    c                 quantum of such TOR is decided by the
                      Municipal Commissioner."

                                                  (emphasis supplied)

             6. The petitioners constructed the export office and also
    D   developed the surrounding area. The possession of the export
1
,       office and the courtyard was handed over to the the MCGB for
        which a possession receipt was also issued. Possession
        receipt mentioned the details of the constructed amenity as
        under:-
    E
              "CTS No.137A Export Office Gr.Fl.293.13 sq. Electric of
              village & chowky for m. 1st Fl.170.15 fittings Mulund (East)
              octroi Deptt. sq.m. Exit. Fixtures as office 27.88 sq.
              advised by E.E.(Mech) & Water cooler- Total 491.16.sq.m.

    F         CTS No.137A Court yard of Area as shown by Electric of
              village Export office A B C D E F G H poles and Mulund
              (East) office I JK on the plan carriage duly certified by
              entrance to Roads Deptt. under plot & front No.DYCHE/
              1486/compound/ Rds.dt.23.2.96 wall."
    G
              7. An application was made by the respondents' Architect
        for DRC. On 19.1.1999, DRC for TOR in respect of export office
        being 491.16 sq. metres equivalent of the 100 per cent of the
        built up area of the export office was granted. However, insofar
    H   as the additional transferable rights in lieu of the development
  MUNICIPAL CORPORATION OF GREATER BOMBAY v.                 663
  YESHWANT JAGANNATH VAITY [V.S. SIRPURKAR, J.)
  of the export courtyard surrounding the export office was          A
  concerned, the same was restricted to 466.96 sq. metres being
  15 per cent of the built up area of the courtyard. This was the
 .first flash point. On 7 .3.2000, the petitioners by their letter
  claimed that they were entitled to the additional transferable
  rights to the extent of 3113 sq. metres as against the             B
  development of the courtyard of export office on which they had
  done the asphalting work. On 27.6.2000, the Chief Engineer
  refused to grant further additional TOR contending therein that
  the TOR issued was in accordance with the BMC policy, Once
. again, a demand was made by communication dated 6.7.2000           c
  for the balance area and also requested the MCGB for the
. particulars of the alleged policy. It was informed herein that
  there was a circular dated 9.12.1996 which formulated the
  policy. The respondents were invited for discussion. A contempt
  application was also filed by the respondents being Contempt
                                                                     0
  Petition No.116 of 2000, contending therein that the consent
  order dated 10.3.1992 was violated. The said contempt petition
  was dismissed holding that there was no willful disobedience.
  On 23.12.2003, the respondents again addressed a letter to
  the MCGB calling them upon to grant further ORC for the
  remaining 85 per cent of the area of the courtyard and since       E
  the demand was not met, the writ petition came to be filed.

       8. The writ petitioners-respondents mainly relied on the
  consent terms dated 10.3.1992 and, more particularly, on
  Clause 9 and contended that they were entitled to the benefit F
  of additional TORs as they had developed not only the export
. office of the MCGB but also done the asphalting work of the
  surrounding area, more particularly, in accordance with the
  Regulations. Appendix VII, Sub-Clause 6 of Regulation 34 of
 the Regulations were also reiterated in the letter issued by the G
  Chief Engineer dated 22.12.1992. Further condition No. 4
  provided that the MCGB will grant benefit of transferable
  development rights in respect of the agreed asphalted surface
 area, the export office building as and when the quantum of
.such TOR is decided by the Municipal Commissioner was also H
    664       SUPREME COURT REPORTS.                [2011] 5 S.C.R.


A   relied upon. They pointed out that the Municipal Commissioner
    could not have retied on a subsequent circular dated 9.12.1996
    and had to go strictly by the language of Clause 6 of Appendix
    VII of Regulation 34 of the Regutations under which they were
    entitled for an area equivalent 100 per cent of the area of the
B   courtyard which they had developed. In short, they pointed out
    that limiting that area only to 15 per cent and granting OCR only
    in respect of that much of area was wholly illegal.

          9. On the other hand, it was contended on behalf of the
    appellants herein that Regulations 33 and 34 of the
C   Regulatidns were only enabling provisions and did not create
    any legal right to get additional TOR. The appellant also relied
    on the circular dated 9.12.1996 and it was contended that as
    per this circular various amenities were described where 100
    per cent FSI was admissible in respec;;t of some amenities and
D   in respect of others only 15 per cent of additional development
    rights could be admissible.· It was mainly contended that the
    courtyard and the development therein did not amount to an
    amenity within the meaning of Section 2 (7) of the Regulations.
    The High Court allowed the writ petition. It was held that the
E   Regulations had statutory force and Clause 6 of Appendix VII
    of Regulation 34 of the Regulations provided for benefit to be
    enjoyed by a person who constructed the amenity. Relying on
    the plain language of Clause 6, it was held that the respondents
    herein were entitled to 100 per cent OCR rights. The High Court
F   also held that the aforementioned circular dated 9.4, 1996 was
    of no consequence vis-a-vis the specific language of Clause 6
    of Appendix VII Regulation 34 of the Regulations. The High
    Court also relied on the judgment of this Court reported as
    Godrej & Boyce Manufacturing Co. Ltd. v. State of
G   Maharashtra & Ors. [2009 (5) sec 24]. The High Court came
    to the conclusion that the above mentioned decision of this
    Court applied on all fours to the present matter.

        10. Shri Udc;iy Lalit, learned senior counsel appearing on
    behalf of the appellants herein firstly contended that the above
H
   MUNICIPAL'CORPORATION OF GREATER BOMBAY v.                    665
   YESHWANT JAGANNATH VAITY [VS. SIRPURKAR, J.]
  mentioned decision was distinguishable. According to him, in           A
  that decision the Court was considering whether a road
  constructed by the owner would entitle the owner to additional
  TOR. He further argued that the road was undouqtedly an
  amenity under Maharashtra Regional and Town Planning Act
  (hereinafter called "the Act" for short) as also under the             B
  Regulations. Learned counsel further argued that in the present
  case the additional TOR was being claimed on the basis of the
· work of asphalting of the courtyard and, therefore, it could not
  be held to be an amenity entitling the owner to the additional
 TOR.                   .                                                c
      , 11. It was further submitted that th.e circular dated 9.4.1996
  had no bearing in Godrej & Boyce's case (cited supra) since
  it was issued after the land owners had surrendered their plot
. of land after construction of the roads as required by the
  Municipal Council while in the present case the said circular          0
  was issued prior to the respondent Nos.1 and 3 completing the
  construction of an export office and asphalting of the courtyard
  and handing over the possession. The counsel further urged that
  the question arising in the present case was different in the
  sense that in the present case, the. question was whether under        E
  sub-regulation 6 of Appendix VII of Regulation 34, it was
  mandatory for the Commissioner or the appropriate authority
  to grant 100 % TDR equivalent to the entire area of the
  courtyard. Lastly, it was contended that in Godrej & Boyce's
  case, the difference between Regulations 5 and 6 of Appendix           F
  VII was not noticed.

      12. The learned senior counsel also urged that Clause 6
 applied only to the developed or constructed amenity and
 asphalting the courtyard could not be covered under the same~           G
 Our attention was drawn to the definition of'amenitY' aiid it was
 contended that the courtyard could not be covered under the
 same. The learned senior counsel further urged that the High
 Court had not properly interpreted the consent terms as also
 Clause 4 of the letter dated 22,2.1995. It was urged that, that         H
    666      SUPREME COURT REPORTS                  [2011] 5 S.C.R.

A .unlike sub-regulation 5, the wording in sub-regulation 6 confers
   a discretion on the authority. Our attention was drawn to the
   difference in language by contending that while in clause 5 the
   wording used is "shall be equal to" and in clause 6, the same
   was "may be grantee!'. Our attention was also drawn to the
B phraseology used in the two clauses. While in clause 5, the
   wording used was "equar. in clause 6 it was "equivalenf'. It
   was also urged that by circular dated 9.4.1996, arbitrary
   exercise of discretion by the Commissioner was avoided and
   that was the main purpose of bringing in the circular. The same
c provided definite guidance in respect of the extent of TOR that
   was to be granted by the Commissioner /competent authority.
   Lastly, it was urged that asphalting of the courtyard was a
   separate activity. It had got nothing to do with the consent terms.
   As regards the letter dated 22.2.1995, and more particularly,
   clause 4 therein, it was urged that under the same the
0
   respondents had specifically agreed that the quantum of the
   TOR to be granted was to be decided by the Municipal
   Commissioner and, therefore, the respondents could not turn
   back and urge that they would be entitled to the 100% TOR.

E      13. As against this, Shri Ashok H. Desai, learned senior
  counsel appearing on behalf of the respondents pointed out that
  the matter was fully covered by the decision in the
  aforementioned case of Godrej & Boyce (cited supra). The
  learned senior counsel pointed out that it was a misnomer to
F say that asphalting was not an amenity. He pointed out that
  unless the asphalting was done, the basic purpose of
  constructing the octroi duty office would have been frustrated
  as there would be no place for the large number of vehicles to
  be parked. The learned counsel also pointed out, relying on the
G provisions of OCR, that the courtyard, though was separately
  mentioned and explained in the Rules, the asphalting therein
  would certainly be an amenity. The counsel urged about the
  letter dated 22.2.1995, that even if it was the discretion to
  decide about the quantum of grantable TOR, the said
H discretion could not have been used in contravention of the
 MUNICIPAL CORPORATION OF GREATER BOMBAY v.                    667
 YESHWANT JAGANNATH VAITY [V.S. SIRPURKAR, J.]

Regulations. He pointed out that on that date, the circular was        A
nowhere which came much later and as such it could not have
been made applicable with retrospective effect. The learned
senior counsel also urged that the interpretation put forward by
the appellants of Clauses 5 and 6 was incorrect and in fact
there was very little or no difference. The learned senior counsel     B
stressed the implication of Clause 6 and pointed out that there
was no scope for the interpretation tried to be put forward by
the appellant MCGB. Learned senior counsel·wholly supported
the High Court judgment.

     14. It will be our task to examine as to whether the              C
aforementioned ruling in Godrej & Boyce's case (cited supra)
clinches the issue. The factual scenario in both the matters is
almost identical. The only difference is that in that case, the land
owners had developed the roads while in the present case, the
land owners have developed the courtyard by asphalting the             D
same. In Godrej& Boyce's case (cited supra), the reliance was
only on the same circular dated 9.4.1996 issued by the
Municipal Commissioner of the MCGB. That was by far the only
defence. In that case, the State had argued that the law
provides for the grant of additional FSI or TOR commensurate           E
to the value of the amenity constructed by the landowner and
the meaning of Para 6 of Appendix VII to the Regulations would
be clear by reading it alongwith other provisions of the
Regulations and the parent Act. The State had argued that the
said circular dated 9.4.1996 was clarificatory and fully applied       F
to the claims of the appellants in that case which were even
prior to the said circular being born. After taking the full resume
of the provisions of the Act as also the Regulation,1'>-s, the Court
went on to hold firstly that as per Regulation 2(2) of the
Regulations, any terms and expressions not defined in the              G
Regulations shall have the same meaning as in Bombay
Municipal Corporations Act, 1888 and the Rules and Bye-laws
framed thereunder, as the case may be, unless the context
otherwise required. The Court then went on to hold that the term
"amenity" which was defined under Regulation 3 Clause (7) was          H
    668      SUPREME COURT REPORTS                  [2011) 5 S.C.R.


A much restricted than the one given under the Act, inasmuch as
    the sport complex, parade grounds; gardens, markets, parking
    lots, primary and secondary schools and colleges and
    polytechnics, clinics, dispensaries and hospitals were not
    included in the definition of"amenity". The Court, however, found
B   that the road was common to definitions, both, under the Act
    and the Regulations and it was defined in the widest possible
    terms in Clause (76) of Regulation 3.

          15. After considering the concepts like "floor spare index
   (FSI)", "Additional FSI" and "TDRs", the Court considered
C Appendix VII referred to in Regulation 34 of the Regulations,
   the Court then took the stock of the argument that the envisaged
   grant of FSI or TDR was under tWo separate heads, one, for
   the land and the other for the construction of the amenity for
   which the land was designated in the development plan. at the
D cost of the owner. The Court referred to Section 2(9-A), as also
   to Section 126(1)(b). Taking note of Para 6 of Appendix VII of
   the Regulations, the Court noted that the additional DR for
   construction of the amenity for which the surrendered plot was
   designated in the development plan at the owner's cost
E provided for a further DR in the form of FSI "equivalent to the
 . area of the construction/development". The Court also noted the
   argument that this grant of additional DR could not be on a
   sliding scale for construction/development of different kinds of
   amenities on the surrendered land and· thus, it could not be
F reduced or curtailed. After taking into consideration the circular
   dated 9.4.1996 and noting, particularly, para 3 thereof, the
   Court also noted that in that case, the earlier granted TDR @
   15% was increased to 25%. The Court also noted the further
   argument that the Regulations framed under the Act had
G statutoiy force as held in Pune Municipal Corporation Vs.
   Promoters and Builders Assn. {2004 (10) SCC 796]. As
   against this, the circulars issued by the Municipal
   Commissioner were simply executive instructions and thus
   could not override or supersede the provisions of the
H Regulations. The Court also noted the argument that since the
  MUNICIPAL CORPORATION OF GREATER BOMBAY v. 669
  YESHWANT JAGANNATH VAITY(V.S. $1RPURKAR, J.)
                           ~       .   .   .   :   .' .   ''   '   .
Municipal authorities were fully aware and conscious of this           A
legal position, they had requested to the State Government to
suitably modify Para 6 ofAppendix VII of the Regulations. The
non-retrospectivity of 'he; circular dated 9.4. ~ i96 wa~ also
noted.'                    ·                 · ·        ·
                                                                       8
       16. All these arguments were tried to be·countered in that
 case, basi~ally on the ground that the gran~ of additional TOR
 for construction of all different kinds of amenities equal to the
 area of the construction was illogical, unreasonable and
·discriminatory. It was also urged that the. law contemplated grant
 of further additional TOR commensurate to the value of the land       C
 constructed/developed on the surrendered land . This argument
was specifically refuted. In the present case, Shri U.U. Lalit also
.tried to argue the same aspect that. as against the value or the
 expenditure spent for asphalting, the claim for TOR over the
 area would be an. excessive claim if the vafues are to be             0
 compared. In short, .the argument was that the value of
 asphalting would >be nothing in comparison t'o the claim of
 100% TOR fqr the whole.courtyard. The Court did not accep~
 this proposition which was accepted by the Bombay High Court
 in that case. Relying on the language of Se~tion 126(1)(b) and        E
 the use of the word "against" therein in respect of the area of
 the land surrendered and the further use of the word "against"
 in respect of the development or construction of amenities of
 the surrendered land, the Court held that what. was
 contemplated by law was to recompense the landowner.                  F
 However, Para 5 of the Appendix VII to the Regulations used
 the words "equal to the gross area of reserved plot", and,
 therefore, there. was no difficulty insofar. as the bare land was
 concerned. The Court then went on to consider the effect of the
 words "equivalent to the area of the construction/development"        G
 in Para 6 of the Appendix and noted in paragraph 58 of the
 judgment to the effect that the argument on 'behalf of the
 Government, though not without substance, had to b~ rejected
 as it was not in keeping with the law as it stood and, therefore,
 the value of the development/construction could only be made          H
    670      SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A the basis for granting additional FSI or TOR by making suitable
  amendments in the law and not by an executive circular. In short,
  the Court came to the conclusion that (1) construction of the
  road was undoubtedly an "amenity", (2) under the express
  language of Section 126(1 )(b) read with Para 6 of the Appendix
  VII, the use of the word "equivalent" would entitle the owner of
8
  the building to 100% for the construction of an amenity at
  owner's cost, and (3) a subsequent circular would be of no
  consequence and would not have the effect of overriding the
  provisions of the Regulations as envisaged in Appendix VII and
C clauses 5 and 6.

       17. In view of this unequivocal declaration of law by this
  Court in the aforementioned case of Godrej & Boyce (cited
  supra), in fact, law seems to be fully settled against the
  appellants. It is, however, argued that asphalting of the courtyard
0 could not be said to be an "amenity". The argument must fail
  as the very stance on the part of the MCGB to provide 15% of
  additional TOR for asphalting the courtyard would contain an
  admission that asphalting of the courtyard would amount to an
  amenity. Had it not been so, the MCGB could have conveniently
E said that it would not provide even 1% of additional TOR to the
  respondents herein. Further, considering the definition of
  "amenity" under Regulation 3(7) of the Regulations, which
  includes open spaces, parks, recreational grounds, play
  grounds etc .. we have no difficulty in holding that asphalting the
F courtyard would certainly amount to an amenity. The building
  offered to be constructed by the respondents herein was an
  export office. Considering the overall situation prevailing in
  Mumbai, the asphalting of the whole courtyard and thus
  providing parking lot would certainly amount to an amenity.
G After all, the office, by its very nature, would attract trucks and
  other vehicles. In the absence of an asphalted large area, the
  office could possibly not be a feasible idea. On this count, the
  argument of the appellants must fail.

          18. Shri U.U. Lalit, learned senior counsel appearing on
H
 MUNICIPAL CORPORATION OF GREATER BOMBAY v.               671
 YESHWANT JAGANNATH VAITY [V.S. SIRPURKAR, J.]
behalf of the appellants then urged that the respondents herein A
had specifically agreed in the letter dated 22.2.1995 and more.
particularly in terms of para 4 thereof that the Municipal
Corporation will grant the benefit of TDR in respect of the
concrete/asphalted surface area around the Export Office
building as and when the quantum of such TOR is decided by B
the Municipal Commissioner. It was very earnestly argued by
the learned senior counsel that thereby the respondents had
compromised their rights and had left it to the discretion of the
Municipal Commissioner and, therefore, they could not turn
around and say that it was not for the Municipal Commissioner c
then to decide the quantum as per his own discretion. The
argument is clearly incorrect for the simple reason that on the
day when this letter was signed, the aforementioned circular
dated 9.4.1996 was nowhere in existence. The respondents,
therefore, had no reason to believe that the Municipal 0
Commissioner would decide to scale down the entitlement
which they legitimately expected because of clauses 5 and 6
in Appendix VII. The aforementioned letter merely provided that
the quantum could be decided in terms of the area of courtyard
to be developed and the grant of TDR would depend upon as
to whether that much area was fully developed as per the E
satisfaction of the Municipal Commissioner. The scope of Para
4 could not be taken beyond this·.

     19. Shri Lalit, learned senior counsel, relying on clause 15,
also argued that the li,lnd owner was to get the TOR only on F
the land being levelled to the surrendering ground level and a
1.5 metres high compound wall was constructed with a gate,
at the cost of the owner. That may be so; however, in our view,
the agreement on the part of respondents to construct such a
compound wall and gate and to do the levelling of the land G
before handing over the land admeasuring 3500 sq. metres,
would be of no consequence insofar as the present controversy
is concerned. The further argument of the learned senior
counsel about the difference in the phraseology in clauses 5
and 6 i.e. the word "equal" having been used in clause 5 and H
    672       SUPREME COURT REPORTS                   [2011) 5 S.C.R.


A · the word "equivalent" having been used in clause 6 would also
    be of no consequence as, in our opinion, the same has been
    concluded by the aforementioned ruling of this Court in Godrej
   .& Boyce's case (cited supra) against the appellants, and,
    therefore, the argument that it gives a discretion to the Municipal
8 authorities to scale down the grantable TOR, does not impress
    us.

          20. That apart, in the aforementioned ruling in Godrej &
    Boyce's case (cited supra), the Court has clearly held that in a
C circular, the Corporation could not have created divisions in the
    total amenities in the sense that it could not have chosen to
    grant 100% of additional TOR in favour of some amenities and
  · 15% in case of some oth~rs.

         21. Shri Lalit, learned senior counsel has also reiterated
0   the argument regarding the value of construction vis-a-vis the
    grant of TOR, which question, in our opinion, is not open in view
    of the unequivocal finding given on that question in the
    aforementioned ruling in Godrej & Boyce's case (cited supra).

E        It was tried to be suggested that in asphalting of the
    courtyard there was no element of development as, according
    to the learned senior counsel, the term "development" meant
    building, engineering, mining or other operations in, or over, or
    under land or the making of any material change in any building
F   or land. The argument is wholly incorrect, as had this not been
    development, the MCGB would not have agreed to provide
    even 15% of the TOR therefor.

         22. Lastly, Shri Lalit, learned senior counsel urged that the
    ruling in Godrej & Boyce's case· (cited supra) was
G   distinguishable inasmuch as under the said ruling what was
    considered was the construction of road which was not
    equivalent to asphalting of a courtyard. We have already pointed
    out that the question was not of the construction of a road or
    asphalting of a courtyard; the question was whether it was an
H   amenity. Once it is held as an amenity, there will be no question
 MUNICIPAL CORPORATION OF GREATER BOMBAY v. 673
 YESHWANT JAGANNATH VAITY ('is. SIRPURKAR, J.] .
of refusing the right of equivalent TOR therefor. It was then      A
urged that the circular dated 9A.1996 in Godrej & Boyce's case
(cited supra) wal,? issued after the land owners had surrendered
their plot of land and completed the' construction of roads as
required by the Municipal Corporation, whereas in the present
matter, the circular was issued "prior to" completion of the       B
construction of the export office by respondents 1 to 3 and
asphalting of the courtyard and handing over of the possession
by them. In our opinion, this cannot be the distinguishable
feature, as under any circumstance, the circular date.d 9.4.1996
was issued much after the compromise in the writ petition and      c
the issuance of letter of intent dated 22.2.19~5.
       23. No other point was urged before us.
    24. We are, therefore, of the clear opinion that the High
Court was right in allowing the writ petition and granting 100%    D
TOR as against the development of courtyard by asphalting-the
same. We find no merits in the appeal. The appeal is, therefore,
dismissed. No costs.
N.J.                                        Appeal dismissed.




                               .   ~ '.




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