The Hon’ble Bombay High Court in the present case deliberated over the question of whether land reserved for public purpose under the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”) can be acquired by granting TDR/FSI as compensation.
The Petitioner is a registered Public Charitable Trust who approached the Hon’ble Court under Article 226 of the Constitution of India, seeking directions to the Respondents to adhere to the due process of law in acquiring its land according to the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("2013 Act").
The Petitioner owns land adjacent to the Mandapeshwar Caves, which the Archaeological Survey of India (ASI) claims ownership of, based on a declaration that the land is vested in the Government of India. Despite an order from the City Civil Court in 2001 restraining the ASI from disturbing the Petitioner’s possession, the Municipal Corporation requested the Petitioner to hand over the land for developing a public garden, offering Transferable Development Rights (TDR) in lieu of monetary compensation. The Petitioner, however, refused the TDR, insisting on monetary compensation as per the provisions of the 2013 Act.
The Petitioner in this case expressed willingness to transfer the land, if monetary compensation is provided according to the law. The Municipal Corporation rejected this request, maintaining that TDR could be offered instead of monetary compensation under the MRTP Act. This led to the present writ petition, where the Petitioner seeks a direction that any acquisition of its land should follow the procedure outlined in the 2013 Act if there is no agreement on TDR/FSI.
The primary legal issue for consideration is whether land reserved for public purposes under the MRTP Act, can be acquired by granting TDR or FSI as compensation or whether it must follow the 2013 Act if the landowner rejects TDR/FSI. Sections 125 and 126 of the MRTP Actstipulate that land required for public purposes is deemed needed for such purposes under the 2013 Act. Section 126 of the MRTP Act further provides that such land can be acquired by agreement (by paying an agreed amount or granting TDR/FSI) or by applying to the State Government for acquisition under the 2013 Act if no agreement is reached.
A careful reading of Section 126 of the MRTP Act reveals that TDR or FSI can only be granted based on an agreement between the parties. Without such an agreement, the reserved land must be acquired under the 2013 Act. This interpretation aligns with the decision passed by a full bench of this Hon’ble Court in Shree Vinayak Builders and Developers, Nagpur v. State of Maharashtra, where the Court emphasized that acquisition under Section 126(1)(a) and (b) of the MRTP Act must be by mutual agreement, not unilaterally imposed by the acquiring authority.
The court, after considering the submissions from both the parties, held that in the absence of an agreement between the Petitioner and the planning authority/development authority, the land reserved for public purposes can only be acquired by following the procedure under Section 126(1)(c) of the MRTP Act, which involves the 2013 Act. Consequently, the Respondents cannot compel the Petitioner to accept TDR/FSI and must adhere to the land acquisition process under the 2013 Act.
Accordingly, the court directed that any acquisition of the Petitioner’s land by the Municipal Corporation must comply with Section 126(1)(c) of the of the MRTP Act, by following the 2013 Act procedures if there is no mutual agreement on TDR/FSI.