- (1.)The controversy in the present appeals arises out of the claim of the respondent-writ petitioner, a housing society, to Transferrable Development Rights (TDR) under the relevant Development Control Regulations (DCR) i.e. N-2.4 framed under the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act"). The said claim has been resisted and rejected by the Pune Municipal Corporation and the State of Maharashtra, the two appellants in the appeals under consideration, on the ground that the land in question was not reserved for a public purpose in the development plan prepared under the MRTP Act and being shown as an existing garden therein, the claim to TDR has no legal basis. There are additional grounds for the rejection, details whereof will be, noticed in the course of the narration to be made hereinafter. The land in question measured about 3.5 acres and was covered by Survey No.12 (Part) located at Kohdhava Khurd, Pune. The view of the High Court being in favour of the respondent (writ petitioner) society, the Pune Municipal Corporation and the State of Maharashtra have filed the two appeals in question.
(2.)The core fact that emerges from the multitude of collaterals and the exhaustive pleadings of the parties is that the land in question was shown by the respondent Society itself in the lay out plan submitted by it to the Pune Municipal Corporation, as reserved for garden. Acquisition of the said land was initiated in the year 1982 (28.01.1982) under the provisions of the Land Acquisition Act, 1894 and the same was completed in the year 1987 whereafter possession of the land was taken over on 19.02.1987. In the draft development plan dated 15.09.1982 that was prepared and published under the provisions of the MRTP Act, which was subsequently approved and sanctioned on 05.01.1987, the land was shown as an existing garden. The close proximity of time between the two parallel process is too significant to be overlooked. While according to the respondent-writ petitioner the stage and the manner of the inclusion of the land in the development plan is of no consequence to the issue arising i.e. entitlement to TDR, the State contends that the land was acquired under a non-development plan proposal which would not attract the provisions of the MRTP Act.
(3.)The High Court took the view that it cannot be understood as to how there can be a difference between land "which was part of a development plan reserved by the Government or a part of the development plan submitted by the petitioner in which the land in question was shown as a garden". Laying emphasis on the relevant DCR i.e. N-2.4.17(ii), the High Court took the view that no such distinction is disclosed therein and going by the language of the DCR the respondent Society was entitled to TDR as compensation for the land was not received by it. The High Court also noticed the various communications brought on record by the respondent-writ petitioner to show that, at different stages, the authorities of the Municipal Corporation as well as those of the State of Maharashtra had unequivocally indicated the entitlement of the respondent-writ petitioner to Transferable Development Rights. The High Court also held that the directions contained in Government Order dated 03.02.2007 to be contrary to DCR N-.2.4.17 which is an instance of exercise of statutory powers under the MRTP Act. The said G.O. dated 03.02.2007 had excluded the entitlement to Transferable Development Rights once an award had been made and possession of the land had been delivered as in the present case.