Municipal Corp.Of Greater Bombay & Anr vs Yeshwant Jagannath Vaity & Ors

The Municipal Corporation of Greater Bombay & Anr. .... Appellants

Versus

Yeshwant Jagannath Vaity & Ors. .... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Whether the High Court was right in directing the

appellant The Municipal Corporation of Greater Bombay

(hereinafter called "the MCGB" for short) to grant additional

transfer development rights (hereinafter called "TDR" 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 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 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

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. 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 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 possession much earlier and

there was an agreement dated 16.12.1967, it was not put to any

use much less for the public 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.3437 of 1988 inter alia praying therein for a

declaration that the land was not liable to be acquired. The

writ petitioners demanded back the 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 and constructing an

export octroi office. The 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 respondents 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-payment to the MCGB. It

was further provided in the consent terms that the respondents

herein would be entitled to TDR 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. metres 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 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 precise wordings of Clause 9 to the consent

terms are as under:

"9. The petitioners shall be entitled to the benefit of Additional Transferable Development Rights (hereinafter referred to as `ATDR'), if the petitioners are asked by the respondent No.1 to construct and 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 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

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

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)/ Municipal Architect by his communication 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

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 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 herein addressed a letter to the respondents herein

enclosing a sketch plan of for the proposed export office

together with development of yard. It was informed in the

said letter that as per the directions of the Municipal

Commissioner, additional TDR 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 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 under the supervision of Municipal engineer.

By 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 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

respondents' right to grant development certificate would be

considered after they commence the work of construction of the

export office. Further on 22.2.1995, the Chief Engineer

addressed a consent letter to the respondents certifying his

no objection for constructing the export office building

subject to 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 per the plans & specifications of the Municipal Corporation enclosed herewith and the Municipal Corporation will grant the Transferable Development Rights equivalent to the builtup area of the Export Office.

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 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 quantum of such TDR is decided by the Municipal Commissioner."

(emphasis supplied)

6. The petitioners constructed the export office and also

developed the surrounding area. The possession of the export

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:-

"CTS No.137A Export Office Gr.FI.293.13 sq. Electric of village & chowky for m. 1st FI.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.

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."

7. An application was made by the respondents' Architect for

DRC. On 19.1.1999, DRC for TDR 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 as the

additional transferable rights in lieu of the development of the

export courtyard surrounding the export office was 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 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

TDR contending therein that the TDR issued was in accordance with

the BMC policy. Once again, a demand was made by communication

dated 6.7.2000 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

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 DRC for the remaining 85 per

cent of the area of the courtyard and since 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 of additional

TDRs 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 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 TDR is decided by the Municipal

Commissioner was also relied upon. They pointed out that the

Municipal Commissioner could not have relied 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 Regulations under

which they were entitled for an area equivalent 100 per cent of

the area of the courtyard which they had developed. In short,

they pointed out that limiting that area only to 15 per cent and

granting DCR 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 Regulations

were only enabling provisions and did not create any legal right

to get additional TDR. 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 respect of some amenities and 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 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 DCR rights. The High Court also held that the

aforementioned circular dated 9.4.1996 was of no consequence vis-

`-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 Maharashtra & Ors. [2009 (5) SCC 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 Uday Lalit, learned senior counsel appearing on

behalf of the appellants herein firstly contended that the above

mentioned decision was distinguishable. According to him, in that

decision the Court was considering whether a road constructed by

the owner would entitle the owner to additional TDR. He further

argued that the road was undoubtedly an amenity under Maharashtra

Regional and Town Planning Act (hereinafter called "the Act" for

short) as also under the Regulations. Learned counsel further

argued that in the present case the additional TDR 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 TDR.

11. It was further submitted that the 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 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 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 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. Our

attention was drawn to the definition of `amenity' and 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 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

granted". Our attention was also drawn to the phraseology used in

the two clauses. While in clause 5, the wording used was "equal",

in clause 6 it was "equivalent". 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 provided definite guidance in respect

of the extent of TDR 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 respondents had specifically agreed that the quantum of the

TDR 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% TDR.

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 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 provisions of DCR, 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 TDR, the said

discretion could not have been used in contravention of the

Regulations. He pointed out that on that date, the circular was

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 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

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 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 TDR commensurate 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 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 Regulations, the Court went on to hold firstly that as per

Regulation 2(2) of the Regulations, any terms and expressions not

defined in the 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 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 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 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 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 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 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 statutory 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 Regulations. The

Court also noted the argument that since the Municipal authorities

were fully aware and conscious of this legal position, they had

requested to the State Government to suitably modify Para 6 of

Appendix VII of the Regulations. The non-retrospectivity of the

circular dated 9.4.1996 was also noted.

16. All these arguments were tried to be countered in that

case, basically on the ground that the grant of additional TDR 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 TDR commensurate to the value of the land

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 TDR over the area

would be an excessive claim if the values are to be compared. In

short, the argument was that the value of asphalting would be

nothing in comparison to the claim of 100% TDR for the whole

courtyard. The Court did not accept this proposition which was

accepted by the Bombay High Court in that case. Relying on the

language of Section 126(1)(b) and 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.

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" 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 be 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 the basis for granting

additional FSI or TDR 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 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 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 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 TDR

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 said that it would

not provide even 1% of additional TDR 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 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. 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

behalf of the appellants then urged that the respondents herein

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 TDR is decided by 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 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 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 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 land owner was to get the TDR 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, 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 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 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 authorities to scale down the grantable TDR, 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

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 TDR in favour of some amenities and 15%

in case of some others.

21. Shri Lalit, learned senior counsel has also reiterated the

argument regarding the value of construction vis-`-vis the grant

of TDR, 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).

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 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 TDR

therefor.

22. Lastly, Shri Lalit, learned senior counsel urged that the

ruling in Godrej & Boyce's case (cited supra) was 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 amenity. Once it is held as an

amenity, there will be no question of refusing the right of

equivalent TDR therefor. It was then urged that the circular

dated 9.4.1996 in Godrej & Boyce's case (cited supra) was 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 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 dated 9.4.1996 was issued much after the compromise

in the writ petition and the issuance of letter of intent dated

22.2.1995.

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%

TDR as against the development of courtyard by asphalting the

same. We find no merits in the appeal. The appeal is, therefore,

dismissed. No costs.

......................................J. (V.S. Sirpurkar)

......................................J. (T.S. Thakur) New Delhi;

March 17, 2011.