LexTHE MUNICIPAL CORPORATION OF GREATER BOMBAY &ANR. versus YESHWANT JAGANNATH VAITY & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2011] 5 S.C.R. 653 THE MUNICIPAL CORPORATION OF GREATER BOMBAY A &ANR. v. YESHWANT JAGANNATH VAITY & ORS. (Civil Appeal No. 2575 of 2011) MARCH 17, 2011 B [V.S. SIRPURKAR AND T.S. THAKUR, JJ.] Development Control Regulation for Greater Bombay, 1991 """Regulation 3(7) ~ Transfer developme'fJt rights (TOR) C - Amenity - Order by High Court directing Municipal Corporation of Greater Bombay (MCGB) to grant additional transfer development rights and to issue development rights certificate equivalent to 85 % of the area of a courtyard developed by the respondents in favour of MCGB - D Correctness of - Held: As per the definition qf 'amenity' under Regulation 3(7) asphalting the courtyard amount to an amenity - Clauses 5 and 6 iri Appendix VII does not give a discretion to the Municipal Authorities to scale down the grantable TOR - Thus, the High Court was right in granting E 100% TOR as against the development of courtyard by asphalting the same - The very stance on the part of the MCGB to provide 15% of additional TOR for asphalting the courtyard would contain an admission that asphalting of the courtyard would amount to an 'amenity' - Once it is held as F an amenity, there is no question of refusing the right of equivalent TOR. ·, In the instant case, respondents filed writ petition claiming benefit of additional transfer development rights (TOR) from the Development Control Regulation for G Greater Bombay, 1991 as they had developed no.t only the export office of the Municipal Corporation of Greater Bombay (MCGB) but also done the asphalating work of the courtyard in accordance with the Development 653. H 654 SUPREME COURT REPORTS [2011] 5 S.C.R. A Control Regulation for Greater Bombay, 1991. The High Court allowed the petition. The question which arose for consideration in this appeal was whether the High Court was right in directing 8 the appellant-Municipal Corporation of Greater Bombay to grant additional transfer development rights and to issue further development rights certificate equivalent to 2646.14 sq. metres (85 % of the area of a courtyard) developed by the respondents in favour of the appellants. C Dismissing the appeal, the Court HELD: 1.1 In view of the unequivocal declaration of law by this Court in the case of *Go1 'rej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra and Ors. 0 that construction of the road was undoubtedly an 'amenity'; that under the express language of Section 126(1)(b) of the Maharashtra Regional and Town Planning Act read with Para 6 of the Appendix VII, the use of the word 'equivalent' would entitle the owner of the building E to 100% for the construction of an amenity at owner's cost; and that a subsequent circular would be of no consequence and would not have the effect of overriding the provisions of the Regulations as envisaged in Appendix VII and clauses 5 and 6, law seems to be fully settled against the appellants. The submission that F asphalting of the courtyard could not be said to be an "amenity", cannot be accepted as the very stance on the part of the MCGB to provide 15% of additional TOR for asphalting the courtyard would contain an admission that asphalting of the courtyard would amount to an amenity. G Had it not been so, the MCGB could have conveniently said that it would not provide even 1 % of additional TOR to the respondents. Further, considering the definition of "amenity" under Regulation 3(7) of the Development Control Regulation for Greater Bombay, 1991, which H includes open spaces, parks, recreational grounds, play MUNICIPAL CORPORATION OF GREATER BOMBAY v. 655 YESHWANT JAGANNATH VAITY grounds etc., asphalting tl'le courtyard would certainly A amount to an amenity. The building offered to. be constructed by the respondents· was an export office. Considering the overall situation prevailing in Mumbai, the asphalting of the whole courtyard and thus, providing parking lot.would certainly .amount to an. amenity. After B all, the office, by its very nature, would attract trucks and other vehicles. In the absence of an asphalted large area, the office could possibly not be a feasible idea. [Para 17] [670-C-G] · 1.2 The submission that the respondents had C specifically agreed in the letter dated 22.2.1995 and more particularly in terms of Para 4 thereof that the Municipal Corporation would grant the benefit of TOR in respect of the concrete/asphalted sur
Excerpt shown. Read the full judgment & AI analysis in Lexace.