SC Directs State Of Maharashtra To Return Acquired Land To Owners After 18 Years Since TDR Rate Could Not Be Fixed

A Bench of CJI NV Ramana and Justice Hima Kohli observed that the land was acquired in 2004 and it was not utilized since then by the State and even the Appellants were in continuous litigation for the fixation of the rate of TDR which was earlier fixed at 100% Floor Space Index (FSI) and later was reduced to 4% FSI.

In this case, the Appellants preferred an appeal before the Supreme Court assailing the judgment of the Bombay High Court which dismissed the challenge laid by the Appellants on the order dated December 27^th, 2007 passed by the then Chief Minister of Maharashtra canceling the TDRs Certificate granted in favor of the Appellants @100% FSI and upheld the decision to reduce the TDR granted to the Appellants from 100% FSI to 4% FSI.

The Appellants had agreed to surrender their land to the Respondent and opted for a grant of TDR. The Respondent fixed the applicable TDR for the subject plot at 100% FSI as that was the rate applicable to the surrounding land.

Later, at the request of the Director, Town Planning, Pune the rate of TDR was reduced to 4% FSI by the then Chief Minister.

Thereafter, several rounds of litigation took place before the High Court and also Supreme Court, however, the stand of the Appellants to restore the TDR rate at 100% FSI could not be accepted.

Senior Advocate Neeraj Kishan Kaul appeared for the Appellants while, Senior Advocate Shyam Divan along with AOR Sachin Patil, ASG Madhavi Divan, AOR Bharti Tyagi, and AOR Venkita Subramoniam T.R. appeared for the Respondents before the Apex Court.

The issue which was dealt with by the Court was –

• Whether the subject land surrendered by the Appellants to the Respondent No.3/Corporation would entitle them to grant of TDR @ 100% FSI or @ 4% FSI.

The Apex Court noted that no effort was made to explain why the decision of granting TDR at the rate of 100% FSI had to be brushed aside. No explanation has been offered at justified disagreement with the said opinion; no effort was made by the State to approach the learned Advocate General for obtaining a fresh opinion on the plea that the letter seeking the earlier opinion, had furnished erroneous facts.

The Bench thus held in all this back and forth between Respondent Nos.1 and 2/State and Respondent Nos.3 and 4/Corporation, it is the Appellants who have been left high and dry.

The Court noted that the Appellants had surrendered the subject land to the authorities as far back as the year 2004 with the expectation of being granted TDR, which has still not materialized. In these eighteen years, the Respondents have continued to retain possession of the subject land.

The Court was also informed of the fact that the status of the land has remained the same as it was when it was surrendered.

The Court held that gross injustice has been caused to the Appellants who had offered their land to Respondent No. 3 on the basis of a Scheme floated by it proposing to acquire land for a public purpose and grant TDR to the land owners in lieu of the land.

The Court also noted that the subject land has not been put to use to date and the Appellants cannot be expected to wait till eternity for the Respondents to take a decision in this regard.

Thus, the Bench while holding so, observed –

"Having considered the factual matrix of the present appeal where the matter has been lingering in courts for over eighteen years and there have been several rounds of litigation, three before the High Court and two before this Court in respect of the subject land, which has all along remained in the possession of the respondent No.3/Corporation, thereby not only depriving the appellants of its use but also depriving them of the compensation to which they were entitled as long back as in the year 2004, we are unable to concur with the impugned judgment."

The Court held that in the ordinary course, it would have directed to restore the TDR granted to the Appellants, however, keeping in mind the submission made by Counsel for the Respondent Nos.3 and 4/Corporation that extensive construction has mushroomed in Pune over the past two decades and additional construction of over seven lakhs sq. feet, if permitted, will cause a severe strain on the civic amenities available in the city, the Court deemed it appropriate to direct the Respondent Nos. 3 and 4 to return the land acquired by it to the Appellants.

Furthermore, the Court also directed the Respondents to compensate the Appellants @ Rs.1 crore per year for the loss caused to them on surrendering 66,000 sq. mts. of land way back in the year 2004.

Accordingly, the Court allowed the appeal.

Cause Title – Rajhan Narendra Rout and Others v. The State of Maharashtra, Through Secretary, Urban Development Departments & Ors.

Click here to read/download the Judgment