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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1790 OF 2008
1. Shri Rajhans Narendra Raut ]
Age Adult, Occ: Agriculturist ]
2. Shri Yashodeep Jaivardhan Raut ]
Age Adult, Occ: Agriculturist ]
3. Shri Yashodhan Jaivardhan Raut ]
Age Adult, Occ: Agriculturist ]
4. Shri Harshneel Tapovardhan Raut ]
Age Adult, Occ: Agriculturist ]
All residing at 833, Sadashiv ]
Peth, Pune 411 030 ]
Represented by their Power of ]
Attorney holder Mr. Tapowardhan
Sayajirao Raut Adult,
Occ:Business, R/at 833 Sadashiv
]
]
]
Peth, Pune 411 030 ]Petitioners
versus
1. State of Maharashtra ]
(Summons to be served on the ]
learned Additional Government ]
Pleader appearing for the State ]
of Maharashtra under Order XXVII]
Rule 4 of the Civil Procedure ]
Code 1908 ]
2. The Secretary ]
Urban Development Department ]
Government of Maharashtra ]
Mantralaya, Mumbai 400 032) ]
(Summons to be served on the ]
learned Additional Government ]
Pleader appearing for the State ]
of Maharashtra under Order XXVII]
Rule 4 of the Civil Procedure ]
Code 1908 ]
3. The Municipal Corporation of ]
Pune ]
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(Summons to be served on the ]
Municipal Commissioner) Pune ]
Municipal Corporation ]
Shivajinagar, Pune 411 005 ]
4. The Municipal Commissioner, ]
Pune Municipal Corporation ]
Shivajinagar, Pune 411 005 ]Respondents
Mr. Y. S. Jahagirdar with Mr. Hitesh Jain, Mr.
Subhash Jadhav and Mr. Ajit Shah i/b. M/s. ALMT
Legal for the Petitioners.
Mr. R. M. Kadam, Advocate General with Mr. N.
D. Deshpande, AGP for the State - Respondents No.
1 & 2.
Mr. R. G. Ketkar for the Respondents No. 3 & 4.
CORAM : SWATANTER KUMAR, C.J.
S. A. BOBDE, J.
AND
Date of Reserving Judgment : 18.11.2008
Date of Pronouncing Judgment: 11.12.2008
ORAL JUDGMENT: (Per : S.A. Bobde, J.)
. Heard learned counsel for the parties.
2. The petitioners have challenged the Order
dated 27.12.2007 passed by the Chief Minister of
Maharashtra cancelling the Development Right
Certificate granted by the Pune Municipal
Corporation in favour of the petitioners and further
directing the Pune Municipal Corporation to grant
TDR in the petitioners favour at the rate of 4%
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instead of 100% granted earlier. The subject matter
of the dispute is land bearing Final Plot No.
517(Part) and Final Plot No. 523(Part) situate in a
Town Planning Scheme and reserved for the purposes
of a park. The land is shown in the Hill Top Hill
Slope Zone as per the last Development Plan
sanctioned for the city of Pune in the year 1987.
The area is 66,732 sq. meters.
3. The petitioners, being owners of the said
land which was acquired by the Municipal Corporation
of Pune, applied to the Corporation for grant of TDR
under the Development Control Rules. The respondent
No.3 Corporation issued Development Right
Certificate bearing Nos. 3434-3447 in favour of the
petitioners granting 100% TDR admeasuring 66,372.82
sq. meters on 28.5.2004. The petitioners is said
to have paid an amount of Rs.50,12,316/- towards
construction of a compound wall for construction
protection.
4. Apparently, the grant made in favour of the
petitioners and some others were questioned in the
State Legislative Assembly and the Government stayed
implementation of the TDR. A Public Interest
Litigation No. 113 of 2004 was filed in this Court
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challenging the grant of TDR at the rate of 1.00 to
the petitioners. That petition was disposed of on
27.4.2005 recording that there was already a stay.
Since the petitioners were aggrieved by the stay or
injunction they filed Writ Petition No. 5939 of
2006. This petition was disposed of on 15.1.2007 by
an Order of this Court directing the petitioners to
make a representation to the respondent No.2 –
Secretary Government of Maharashtra and a further
direction to the respondent No.2 to pass an
appropriate order. The Court granted interim
protection
to the petitioners that in the meanwhile
they may not deposit the Development Right
Certificates with the Government.
5. On 13.3.2007, the Chief Minister, Government
of Maharashtra heard the petitioners as well as
others who had objection to the grant of 100% TDR to
the petitioners. The Chief Minister passed an order
dated 27.12.2007 holding that the TDR on the land in
question shall be 4% having regard to the
predominant use of Hill Top Hill Slope Zone on which
the land is situate and its reservation as a Park.
6. The learned counsel for the petitioners
submits that the Order of the Chief Minister is
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illegal in that the Government is estopped from
reducing the TDR having once granted it. According
to the petitioners the land is surrounded by a
residential area and therefore the land in question,
which may be in No Development Zone, should be
treated as eligible for the same TDR for which land
in residential zone is available.
7. We are unable to accept either of the
contentions raised on behalf of the petitioners.
There seems to be a little doubt that the land is
reserved for
the purposes of a park.
8. D.C.R. No. N-2.4.5 reads as follows:-
“The built up area for the purpose of FSI
credit in the form of a DRC shall be equal
to the gross area of the reserved plot that
is surrendered and will proportionately
increase or decrease according to the
permissible FSI of the zone where from the
TDR has originated.”
Thus the FSI of the Zone from where the TDR is
originates affects the proportionate increase or
decrease of FSI when the reserved plot is
surrendered.
DCR NO. M-8 reads as follows:
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“Hills and hill slopes zone
Swimming Pools / Sports and Games, Health
Clubs, Cafeteria – Canteen, Amusement Park
etc.
Note: Maximum floor space area shall not
exceed 4% of the total plot with ground
floor structure without stilts.”
It is clear from the above that for the land which
is situate in the Hills and Hill Slopes Zone the
maximum floor space area cannot exceed 4% of the
total plot with ground floor structure. In the
circumstances
there can be no question of estoppel.
9 . We find no reason to interfere with the
Order of the Government which holds that the land is
in a Hill Top and Hill Slope area with more than 1:5
steep slope. This character of the land has not
undergone any change even though it has been
reserved for a park in the Town Planning Scheme of
1987. The TDR in respect of such a land is 4%. The
consequent cancellation of Development Right
Certificates granting 100% TDR is correct having
regard to DCR No. N-2.4.5. There is no merit in
the petition, which is hereby dismissed.
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CHIEF JUSTICE
S. A. BOBDE, J.
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