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Monday, December 8, 2014

Whether 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”)., rejected is correct = The rejection of the claim of the respondent Society to TDR under the MRTP Act read with DCR N-2.4.17 is seriously flawed. =2014- Oct.Part -CIVIL APPEAL NO. 3008-3009 OF 2010 PUNE MUNICIPAL CORPORATION & ANR.... APPELLANT (S) VERSUS KAUSARBAG COOP. HOUSING SOCIETY... RESPONDENT (S) LTD. & ANR.


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL  NO. 3008-3009 OF 2010





                        CIVIL APPEAL NO. 4580 OF 2010

                               J U D G M E N T


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.

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.

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.

We have heard Shri V.A. Mohta, learned senior counsel and Shri Aniruddha  P.
Mayee, learned counsel appearing for the appellants  and  Shri  Vinod  Bobde
and Shri Shekhar Naphade, learned senior counsels  appearing  on  behalf  of
the respondents.

Assailing the order of the High Court, it is  contended  on  behalf  of  the
appellants that under Section 126 of the MRTP Act grant of TDR against  land
acquired under the Land Acquisition Act is not  contemplated  and  grant  of
TDR is permissible only when the land is acquired by  agreement  and  it  is
further agreed that in  lieu  of  compensation,  TDR  will  be  granted  and
accepted.  It is argued that grant of TDR is a matter of  agreement  between
the acquiring authority and the land  owner  and  the  authority  cannot  be
directed to grant TDR if it is not so willing asmuch as a land owner  cannot
be compelled to accept TDR in the event he opts to accept  compensation  for
the land acquired.  The concept of TDR was brought in  by  an  amendment  to
the MRTP Act in the year 1993 whereas the award for acquisition of the  land
of the respondent society  was  passed  in  the  year  1987  and  possession
thereof was taken over on 21.2.1987.  It is contended  that  the  respondent
society whose land was acquired under the Land Acquisition Act  is  entitled
to compensation calculated on the market value of the land as  on  the  date
of the Notification under Section 4 of the Land Acquisition  Act  which  was
published in the year 1982.  The value of the  benefit,  if  TDR  is  to  be
granted at the present stage, would be grossly  disproportionate.   Pointing
out the provisions of the Development Control  Regulations  governing  grant
of TDR, it is contended that DCR N-.2.4.1(A) and 2.4.17 are required  to  be
read harmoniously and not in isolation as has been done by the  High  Court.
Before DCR N-.2.4.17 can be made applicable, the conditions spelt out  under
DCR N-. 2.4.1(A) has to be satisfied, namely,  that  the  land  should  have
been shown as reserved for a public purpose in the development plan.  It  is
pointed out that in the present case it was not so done and  the  land  was,
in fact, shown as an existing garden.  Therefore,  DCR  N-.2.4.1(A)  is  not
applicable thereby ruling out the application of DCR No.2.4.17.  It is  also
pointed out that the land was acquired under  the  provisions  of  the  Land
Acquisition Act under a non-development plan proposal to  which  acquisition
the provisions of Section 126 of the MRTP Act will have no application.   In
so far as the G.O. dated 03.02.2007 under Section 154 of  the  MRTP  Act  is
concerned, the appellants contend that the said G.O. dated 03.02.2007 is  no
way amends DCR No.2.4.17  as  held  by  the  High  Court;  rather  the  said
directions are merely clarificatory and  were  issued  due  to  large  scale
deviations that have taken place in the matter of grant of TDR.

Opposing the aforesaid contentions advanced on  behalf  of  the  appellants,
Shri  Vinod  Bobde  and  Shri  Shekhar  Naphade,  learned  senior   counsels
appearing on behalf of the respondent - cooperative housing society  in  the
two separate appeals have submitted that the object of  the  amendment  made
in the year 1993 (14.10.1993) introducing the concept of TDR was  to  lessen
the financial burden of the State facing the prospect of making  payment  of
huge compensation money for acquisition  of  land  in  connection  with  the
Development Plan.  Learned counsels have pointed out  that  in  the  present
case the land was eventually included in the development plan  prepared  and
approved under the MRTP Act. The manner  of  inclusion  in  the  development
plan i.e. as an existing garden or as reserved for a garden would  not  make
any difference to the claim of TDR.  It is argued that, though offered,  the
respondent had not accepted any compensation and, in fact, had agitated  for
higher compensation under Section 18 of the  Land  Acquisition  Act.   While
the matter was so pending the concept of TDR came to be  introduced  in  the
Act  and  in  the  year  1997  (05.06.1997)  the  modified  DCR  N-2.4   was
introduced.  The respondent society abandoned the reference made by  it  for
higher compensation and initiated proceedings challenging  the  acquisition.
After  the said challenge was negatived,  the  respondent  society,  in  the
year 2003, lodged a claim for grant of TDR under  DCR  N-2.4.17  (ii)  which
though  initially  was  responded  favourably  was  eventually  rejected  by
placing reliance on the Government Order dated 03.02.2007.   It  is  further
contended that DCR      N-.2.4.17 is  a  stand  alone  provision  and  under
clause (ii) of the said DCR the respondent society is entitled to its  claim
of TDR under the MRTP Act though the  land  had  been  acquired  under  Land
Acquisition Act.  In this regard, it has been specifically pointed out  that
possession of the land was taken from the society in the year 1987 which  is
within 12 years prior to 30th September, 1993  as  contemplated  in  DCR  N-
2.4.17 (ii).  Admittedly, no compensation has been received.  It is  further
submitted that the Government Order dated 03.02.2007 purports to  amend  the
DCR which cannot be so  done  without  following  the  procedure  prescribed
under Section 37 of the MRTP Act.  The fact that  in  similar  circumstances
TDR had been granted to other land owners has also been pointed out  by  the
learned counsels appearing on behalf of the respondent housing society.

In so far as the provisions of Section 126(1) (a) (b) and (c)  of  the  MRTP
Act is concerned, Shri  Vinod  Bobde,  learned  counsel  appearing  for  the
respondent society in C.A. No.3008-3009  of  2010  has  submitted  that  the
availability of TDR to cases of land acquired  under  the  Land  Acquisition
Act after invoking the provisions of Section 126(1)  (c)  of  the  MRTP  Act
will not be open  to  be  raised  either  by  the  State  or  the  Municipal
Corporation once the DCR, particularly DCR N-2.4.17 (ii), had  been  enacted
and brought into force to confer Transferrable Development Rights  for  land
acquired under the provisions of the aforesaid Section  126(1)  (c)  of  the
Act by following the process laid down in the Land  Acquisition  Act.   Shri
Bobde has pointed out that once Regulations have been  framed  contemplating
grant of TDR to  such  land  subjected  to  acquisition  under  Section  126
(1)(c), the Government cannot turn around and refuse to be bound by its  own
norms much less challenge the same.  It  is  further  pointed  out  by  Shri
Bobde that any such plea on the part of the State is not  competent  in  law
and the State cannot seek a decision on the validity of its  self  professed
norms of governance.  So long as the DCR remains its full legal effect  must
be given effect to.

As the issues raised before us will have to be answered on the basis of  the
true and correct purport and effect of the relevant provisions of  the  MRTP
Act; those of the Development Control Regulation  i.e.  DCR  N-2.4.1(A)  and
2.4.17;  and  the  Government  Order  dated  03.02.2007,  the  same  may  be
extracted at the first instance.

Relevant provisions of the MRTP Act

“22. Contents of Development Plan -

      A Development plan shall generally indicate the manner  in  which  the
use of land in the area of the Planning Authority shall  be  regulated,  and
also indicate the manner in which the development of land therein  shall  be
carried out. In particular, it shall provide so far as may be necessary  for
all or any of the following matters, that is to say,-

 (m)  -  provisions  for  permission  to  be  granted  for  controlling  and
regulating the use and development of land  within  the  jurisdiction  of  a
local authority including imposition of fees, charges and premium,  at  such
rate as may be fixed by the State  Government  or  the  Planning  Authority,
from time to time, for grant of an additional Floor Space Index or  for  the
special permissions or  for  the  use  of  discretionary  powers  under  the
relevant  Development  Control  Regulations,  and  also  for  imposition  of
conditions and restrictions in regard to the open  space  to  be  maintained
about buildings, the percentage of building area for a plot,  the  location,
number, size, height, number of  storeys  and  character  of  buildings  and
density of population allowed in a specified area, the use and  purposes  to
which buildings or specified areas of land may or may not  be  appropriated,
the sub-division of plots the discontinuance of objectionable users of  land
in any area in reasonable periods, parking space and loading  and  unloading
space for any building and the sizes of projections and advertisement  signs
and boardings and other matters as may be considered necessary for  carrying
out the objects of this Act.”

“Section 126. Acquisition of land required for public purposes specified  in
plans  (1)  When  after  the  publication  of  a  draft  Regional  Plan,   a
Development or any other plan or town planning scheme, any land is  required
or reserved for any of the public purposes specified in any plan  or  scheme
under this Act at any time the Planning  Authority,  Development  authority,
or as the case may be,/ any appropriate authority may, except  as  otherwise
provided in Section 113-A,/ acquire the land –

(a)   by an agreement by paying an amount agreed to or,

(b)   in lieu of any such amount, by granting the land-owner or the  leasee,
subject, however, to the lessee paying the lessor  or  depositing  with  the
Planning Authority, Development Authority or Appropriate Authority,  as  the
case may be, for payment to the lessor, an amount equivalent  to  the  value
of the lessor’s interest to be determined by any  of  the  said  Authorities
concerned on the basis of the principles laid down in the  Land  Acquisition
Act, 1894, Floor Space Index (FSI) or Transferable Development Rights  (TDR)
against the area of  land  surrendered  free  of  cost  and  free  from  all
encumbrances, and also further additional Floor Space Index or  Transferable
Development Rights against the development or construction  of  the  amenity
on the surrendered land at this  cost,  as  the  Final  Development  Control
Regulations prepared in this behalf provide, or

(c)   by making an application to the State Government  for  acquiring  such
land under the Land Acquisition Act, 1894.

And  the  land  (together  with  the  amenity,  if  any,  so  developed   or
constructed) so acquired by agreement or by grant of Floor  Space  Index  or
Additional  Floor  Space  or  Transferable  Development  Rights  under  this
Section or under the Land Acquisition Act, 1894, as the case may  be,  shall
vest in the Planning Authority, Development Authority, or as  the  case  may
be, any Appellate Authority.”

Government Order dated 03.02.2007

                                                “Maharashtra Regional & Town
                                                          Planning Act, 1966
                                                 Directive under Section 154
                                                                  About TDR.
                         GOVERNMENT OF MAHARASHTGRA
                        URBAN DEVELOPMENT DEPARTMENT
                        MANTRALAYA, MUMBAI – 400 032.

                          DATED 3rd FEBRUARY, 2007.


No. TPS/Sankirna-06/CR-527/06/UD-13:- Whereas the provision of  Transferable
Development Rights (hereinafter referred to as  “the  said  TDR”)  has  been
incorporated in the sanctioned Development Control Regulations  (hereinafter
referred to as “the said DCR”) with a view to reduce  the  financial  burden
of acquisition of lands reserved for  public  purposes  in  the  Development
Plan and for early possession of these lands:

      And  whereas,  sanctioned  Development  Control  Regulations  of  some
Municipal Corporations contain the provision of  rules  regarding  the  said

      And whereas, sanctioned the said DCR of  some  Municipal  Corporations
also have provision to grant the said TDR  for  the  lands  acquired  either
under Maharashtra Regional& Town Planning Act,  1966  (hereinafter  referred
to as “the said Act”), Bombay Provincial Municipal Corporation Act,  Private
Negotiation or any other Act  and  possession  of  which  has  already  been
delivered to the Municipal Corporation;

      And whereas, it has come to the notice of  Government  that  the  rule
regarding the grant of TDR such acquired lands have been misinterpreted  and

      And whereas, once the possession is delivered  after  acquisition  the
rights of the owner are  transferred  to  the  Planning  Authority  and  the
application by the land owner demanding TDR thereafter can  be  said  to  be
made without having any rights in the land;

      After considering the facts and circumstances referred  to  above,  in
exercise of the  powers  conferred  under  Section  154  of  the  said  Act,
Government is pleased to issue directives to all the Municipal  Corporations
as follows:

      All the Municipal Corporations which  have  the  provisions  regarding
grant of Transferable Development Rights  (TDR)  for  the  lands  which  are
acquired under either the MRTP Act, BPMC Act,  Private  Negotiation  or  any
other Act shall initiate modification  proposal  after  following  procedure
laid down under Section 37 of the said Act so as to replace  the  provisions
of this regard by new rules as follows:


1)    Transferable Development Rights (TDR) shall not  be  permissible  once
an award has  been  declared  under  the  acquisition  process  and  or  the
possession has already been delivered to  the  Municipal  Corporation  under
any Act.

2)    Municipal Corporation shall punish a notice inviting  suggestions  and
or objections regarding the modification within sixty days from the date  of
issue of this order.

3)    After completing the procedure laid down under Section  37(1)  of  the
said Act Municipal Corporation shall submit the said  modification  proposal
to the Government for final sanction.

4)    Pending the approval  to  the  aforesaid  modification  the  new  rule
mentioned hereinabove shall come into force with effect  from  the  date  of
issue of this notification.

                                                 By order and in the name of
                                                    Governor of Maharashtra.
                                                          (Nandkishor Patil)
                                              Under Secretary to Government”

      Development Control Regulation
“N.2.4.1 (A). The owner (or lessee) of a plot of land which is reserved  for
a public purpose, or road construction or road widening in  the  development
plan and for additional amenities deemed  to  be  reservations  provided  in
accordance with these Regulations, excepting in the case of an  existing  or
retention user or to any required compulsory  or  recreational  open  space,
shall be eligible for the word of transferable Development Rights (TDRs)  in
the form of Floor Space Index (FSI) to the extent and on the  condition  set
out below.  Such award will entitle the owner of the land,  to  FSI  in  the
form of a Development Right Certificate (DRC) which be        (sic. he)  may
use for himself or transfer to any other person.

N-2.4.17. Grant of TDR in cases where lands are under acquisition:

(i)  Where Land Acquisition has been declared but request was made  for  TDR
to the Special Land Acquisition Officer after 30th September 1993  i.e.  the
date  of  publication  of  these  draft   Development   Control   Regulation
containing TDR concept.

(ii)  Possession of the land has  been  delivered  without  having  received
part or full compensation under either the  Maharashtra  and  Town  Planning
Act, Bombay Provincial Municipal Corporation  Act,  private  negotiation  or
under any Act for the time being in force within  12  years  prior  to  30th
September 1993.”

9.    Though there is some controversy on the basic  facts,  there  is  also
unanimity to show  that  the  acquisition  of  the  land  belonging  to  the
respondent society was initiated by  notification  dated  28.01.1982  issued
under Section 4 of the Land Acquisition Act, 1894.  It is  also  clear  that
on completion of enquiry under Section 5-A  of  the  Land  Acquisition  Act,
declaration under Section 6 was published on 2.1.1985.  Some  further  facts
on which there is no dispute and therefore would require to  be  taken  note
of, are that the draft revised  development  plan  which  was  published  on
18.9.1982  showed  the  land  as  an  existing  garden  and  in  the   final
development plan which was sanctioned on 5.1.1987, the land was again  shown
as  “existing  garden  as  per  approved   layout”.    The   respondent-writ
petitioner, however, contends  that  the  description  of  the  land  as  an
existing garden is  wrong  and  what  should  have  been  mentioned  in  the
development plan is that the land was proposed for a  garden  as  possession
of  the  same  was  still  with  the  respondent-society  on  the  date   of
publication of the final development plan i.e. 5.1.1987. Possession  of  the
land, as noticed, was taken over on 18.2.1987 whereas the  award  under  the
Land Acquisition Act was made on 22.01.1987.

10.   Having considered the matter we are of the view that it  will  not  be
necessary for us to consider the aforesaid perspective  highlighted  by  the
respondent society as the controversy over the entitlement to TDR under  the
relevant DCR is capable of being resolved on a  wholly  different  basis  to
which aspect of the matter we may now turn.

11.   The concept of TDR was introduced for the first time in the  MRTP  Act
in the year 1993 by an amendment of Section 126(1)(a), (b) and  (c)  of  the
MRTP Act.  The modalities for grant of TDR were brought into  force  by  the
amended Development Control Regulation (for short ‘DCR’) N-2.4  with  effect
from 5.6.1997.  In its simplest  form,  the  concept  of  TDR  involves  the
surrender of land reserved for various public purposes  in  the  development
plan free of cost and in exchange thereof grant of TDR entitling the  holder
thereof to construct a built up area equivalent to the  permissible  FSI  of
the land handed over by him on one or more  plots  in  the  zone  specified.
Such rights are transferable.  The object behind  introduction  of  TDR,  as
admitted by the Pune Municipal Corporation in its various publications,  was
to meet the situation faced by the Corporation on being called upon to  make
payment of over Rs.1500 crores to take over different sites measuring  about
600 hectares which had been reserved for different public  purposes  in  the
development plan.

12.   Strictly construed it is the provisions  of  the  Section  126  (1)(a)
read with (b) of the MRTP Act, extracted earlier,  which  contemplate  grant
of  TDR  and  that  too  only  against  land  acquired   by   agreement   as
distinguished from land which is acquired under the Land Acquisition Act  in
exercise of powers under Section 126(1)(c). The latter kind  of  acquisition
i.e.  under the Land Acquisition Act by invoking Section  126(1)(c)  of  the
MRTP Act however stands on a footing that is different  and  distinguishable
from the normal process of acquisition under the  same  Act  i.e.  the  Land
Acquisition  Act.   This  is  because  in  an  acquisition  under  the  Land
Acquisition Act made in exercise of power under  section  126(1)(c)  of  the
MRTP Act, the provisions of Section 4 and Section 5A of  the  L.A.  Act  are
dispensed with and straightway a notification  under  Section  6  is  to  be
issued.  The market value of the land, though sought to  be  acquired  under
the Land Acquisition Act, is pegged  to  the  date  of  publication  of  the
interim or draft development plan, as  may  be,  and  not  to  the  date  of
publication of the notification under Section  4  of  the  Land  Acquisition
Act.  The above is a subtle but vital difference between  the  ordinary  and
‘normal’ process of acquisition under  the  Land  Acquisition  Act  and  the
process of acquisition under the same Act but in exercise  of  powers  under
Section 126(1)(c) of the MRTP Act that needs to be kept in mind.

13.   DCR N-2.4.1(A) gives effect to the  provisions  of  Section  126(1)(a)
and (b) brought in by the amendment to the MRTP Act in  1993.   It  entitles
the owner or a lessee of a plot of land, which  is  reserved  for  a  public
purpose  in  the  development  plan,  to  the  award  of  TDR  in  lieu   of
compensation upon surrender of the land free of cost.  If, DCR No.N-2.4  had
not contemplated any further  situations  for  grant  of  TDR  the  argument
advanced  on  behalf  of  the  appellants   would   have   merited   serious
consideration.  However, DCR N-2.4.17,  extracted  above,  contemplates  two
other situations for grant of TDR.  Under  DCR  N-2.4.17(ii)  in  situations
where possession of land had been delivered without receipt of part or  full
compensation  payable  under  the  MRTP  Act,  Bombay  Provincial  Municipal
Corporation Act, private negotiations or under any Act and  such  event  had
occurred within 12 years prior to 30.9.1993  (date  of  publication  of  the
draft DCR containing the TDR concept) claims for grant of TDR  are  required
to be entertained.   DCR  N-2.4.17  extends  the  frontiers  outlined  under
Section 126(1)(a) and (c) and makes  the  grant  of  TDR  applicable  to  an
extended class of cases wherein acquisition of land is made not  only  under
the MRTP Act but also under other enactments including the L.A.  Act.   Such
an extension appears  to  be  in  consonance  with  the  object  behind  the
introduction of the concept of TDR by the  amendment  of  the  MRTP  Act  of
1993.  Having regard to the clear language  contained  in  DCR  N-2.4.17(ii)
and the object sought to be achieved by the introduction of TDR, we  do  not
see as to how grant of TDR can be confined only  to  cases  of  lands  which
have been reserved in the development plan and not to lands  acquired  under
the Land Acquisition Act  which  land  eventually  becomes  a  part  of  the
finally approved and sanctioned development  plan.   The  above  would  also
lead  to  the  conclusion  that  DCR  N-2.4.17  is  capable   of   operating
independently and is not contingent  on  the  existence  of  the  conditions
mentioned in DRC N-2.4.1(A).

14. The matter needs to be viewed from another perspective.  The  difference
between acquisition under the L.A.  Act  by  resort  to  the  provisions  of
Section 126(1)(c) of the MRTP Act and acquisition dehors the said  provision
of the MRTP Act has already been noted.  If under DCR N-2.4.17, TDR  can  be
granted in cases of acquisition under the  MRTP  Act  obviously  acquisition
under the LA Act upon invocation of Section  126(1)(c)  would  be  included.
In such a situation, reference to  any  other  Act  in  DCR  N-2.4.17  would
include the L.A. Act so as to bring land covered by the  normal  process  of
acquisitions under the L.A.  Act  within  the  fold  of  DCR  N-2.4.17.  The
acquisition  of  the  land  belonging  to  the  respondent  society   would,
therefore, be clearly covered by the provisions of DCR N-2.4.17.

15.   “Making of DCR or amendments thereof  are  legislative  functions.”[1]
The Government Order dated 3.2.2007, though claimed to be  clarificatory  by
the appellants, really, seeks to prohibit the grant  of  DCR  under  DCR  N-
2.4.17 so far as lands in respect of which Award under the Land  Acquisition
Act had been passed or possession of which has been  taken  over.   This  is
contrary to the clear intent  behind  DCR  N-2.4.17.  The  Government  Order
itself acknowledges the necessity of following the procedure  prescribed  by
Section 37 of the MRTP Act before the aforesaid  modification  could  become
effective.  Yet, surprisingly the Government Order goes on  to  state  that,
“Pending approval of the  aforesaid  modification  the  new  rule  mentioned
hereinabove shall come into force with effect from  the  date  of  issue  of
this notification”.  The Government Order in question,  having  been  issued
under Section 154 of the MRTP Act, therefore, cannot  override  the  DCR  N-
2.4.17 as the directions under Section 154 of the MRTP Act would be  in  the
nature of administrative instructions (Laxminarayan R.  Bhattad  and  Others
Vs. State of Maharashtra  and  Another[2]).   Admittedly,  at  the  relevant
point of time, the requisite process under Section 37 of the  MRTP  Act  had
not been completed.

16.   Underlying the arguments advanced on behalf of  the  appellants  is  a
fundamental issue that would require a  brief  mention.   The  present  case
discloses a somewhat disturbing course of action adopted  by  the  State  in
seeking to disown and challenge its own professed  standards  laid  down  in
the form of a DCR by tangentially contending the same to be  incompetent  in
law.  Such a course of action by the State seeking to depart from its  self-
professed norms is neither  permissible  nor  would  the  Court  require  to
consider the same.  The DCR governing the grant of TDR though may have  gone
beyond  what  is  contemplated  under  the  MRTP  Act,  the  State  and  its
authorities cannot  be  permitted  to  request  the  Court  to  collaterally
adjudge the validity of the said norms laid down by the  State  itself.   It
is for the State to effect necessary corrections as deemed  proper  and  not
search for an escape valve through a judicial verdict.   Such  a  course  of
action is jurisprudentially impermissible.  So long as  the  DCR  holds  the
field all executive actions must be within the four corners thereof. We  can
usefully remind ourselves of the  observations  of  Justice  Frankfurter  in
Viteralli Vs. Seaton[3] approved in R.D. Shetty  Vs.  International  Airport
Authority[4] :

“An executive agency must be rigorously held to the standards  by  which  it
professes its  action  to  be  judged.   ..Accordingly,  if  dismissal  from
employment is based on a defined procedure, even though generous beyond  the
requirements that bind the  agency,  that  procedure  must  be  scrupulously
observed…This judicially evolved rule of administrative law  is  now  firmly
established and, if I may add, rightly so.  He  that  takes  the  procedural
sword shall perish with the sword.”

17.    For  the  above-stated  reasons,  the  conclusion  is  obvious.   The
rejection of the claim of the respondent Society to TDR under the  MRTP  Act
read with DCR N-2.4.17 is seriously flawed. We,  therefore,  set  aside  the
same; affirm the order dated 15.9.2009 of the Bombay High Court in the  writ
petition filed by  the  respondent  Society  and  consequently  dismiss  the
appeals  filed  by  the  Pune  Municipal  Corporation  and  the   State   of

                                           [RANJAN GOGOI]

New Delhi;
October 09, 2014.

[1]     Pune Municipal Corporation and Anr. Vs. Promoters and Builders
Association and Anr. [(2004) 10 SCC 796]
[2]    (2003) 5 SCC 413
[3]    3.L Ed.2d. 1012
[4]    (1979) 3 SCC 489


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