“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2575 OF 2011 [ARISING OUT OF SLP (C) NO. 31645 OF 2009]

The Municipal Corporation of Greater Bombay & Anr. …. Appellants

Versus

Yeshwant Jagannath Vaity & Ors. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Whether  the  High  Court  was  right  in  directing  the  

appellant  The  Municipal  Corporation  of  Greater  Bombay  

(hereinafter called “the MCGB” for short) to grant additional  

transfer  development  rights  (hereinafter  called  “TDR”  for  

short)  and to  issue further  development rights  certificate  

(hereinafter called “DRC” for short) equivalent to 2646.14 sq.  

metres (85 % of the area of a courtyard) developed by the  

respondents in favour of the appellants is a question that  

fall for consideration in this appeal.   

3. By the impugned judgment, the Bombay High Court under  

Clause 6 of Appendix VII to the Development Control Regulation  

for Greater Bombay, 1991 (hereinafter called “the Regulations”  

for short) has issued such a direction in a writ petition  

filed by the respondents herein.

Factual panorama

4. The respondents herein owned 10,000 sq. yards of land  

in Mulund village.  A development plan was sanctioned for  

Greater Bombay in the year 1957.  Mulund comes within the area  

of Greater Bombay. The said land was shown as reserved for  

public purpose of construction of a godown.  Ordinarily, such  

land is acquired under the provisions of Land Acquisition Act,  

1894.  However, the respondents and the four other co-owners  

entered into a private agreement to hand over possession of  

10,000 sq. yards to the MCGB for the temporary use as a truck  

terminal.  The land was also to be used as a town duty office.  

The possession was handed over on 18.9.1961.  An agreement was  

entered into between the respondents and the other co-owners  

with the MCGB wherein it was agreed that the respondents and  

the other co-owners would receive compensation of Rs.90,000/-.  

The land, though, was given in possession much earlier and  

there was an agreement dated 16.12.1967, it was not put to any  

use much less for the public purpose for which it was intended  

to be acquired.  The land was not put to any other use also  

right till November, 1998.  Hence, the respondents filed a  

writ petition No.3437 of 1988 inter alia praying therein for a  

declaration that the land was not liable to be acquired.  The  

writ petitioners demanded back the possession of 10,000 sq.  

yards. There was a compromise effected in this writ petition  

by order dated 10.3.1992 between the parties.  Under the same,  

the MCGB agreed to acquire and retain the area of 3500 sq.  

metres for the purpose of establishing and constructing an  

export  octroi  office.   The  consent  terms  provided  that  

appellant Nos.1 and 2, namely, MCGB and its Chief Engineer

would hand over the remaining area to the respondents herein  

and  the  respondents  herein  would  refund  the  amount  of  

Rs.90,000/- with interest therein @ 10 % per annum from the  

date of payment till the date of re-payment to the MCGB.  It  

was further provided in the consent terms that the respondents  

herein would be entitled to TDR to the extent provided in the  

Regulations  in  respect  of  3500  sq.  metres  in  lieu  of  the  

payment of Rs.90,000/- with interest.  It was further provided  

in the consent terms that the MCGB would grant TDR in lieu of  

the  said  land  measuring  3500  sq.  metres  subject  to  the  

compliance  of  various  requirements  by  the  petitioners  as  

required under Regulation 34, Appendix VII of the Regulations.  

It was specifically provided by Clause 9 of the consent terms  

that  if  the  petitioners  constructed  and  developed  export  

office for the MCGB on the aforementioned area of 3500 sq.  

metres and handed over the premises to the MCGB free of cost,  

the respondents would be entitled to the benefit of additional  

transferable  development  rights  as  per  Regulation  6  of  

Appendix VII.  The precise wordings of Clause 9 to the consent  

terms are as under:

“9. The petitioners shall be entitled to the benefit of  Additional  Transferable  Development  Rights   (hereinafter  referred to as ‘ATDR’), if the petitioners are asked by the  respondent No.1 to construct and develop the Export Office for  the Corporation on the land so surrendered at their own costs  and as per the plans and designs and specifications of the  respondent No.1 and hand over the premises so constructed to  the respondent No1 free of costs as per the sub-regulation 6  of Appendix VII of the Development Control Rules for Greater  Bombay, 1991.”

5. A letter was addressed by the Constituted Attorney of  

the respondents dated 18.4.1992 calling for a joint survey and  

demarcation and the engineer of the MCGB was requested to

inform the details and specifications of the work which the  

present respondents would have to carry on to claim the TDR as  

per paragraph 4 of the consent terms and the additional TDR as  

per  paragraph  9  of  the  consent  order  quoted  above.  The  

respondents were informed on 25.4.1992 that they would have to  

carry out the work of leveling the plots, construction of  

compound wall on three sides with gates, development of yard  

with  asphalting  and  the  construction  of  an  export  office  

building as per the specifications submitted by the Deputy  

C.E.(P & D)/ Municipal Architect by his communication dated  

20.9.1991.  The Constituted Attorney was directed to approach  

the concerned authority.   

On  25.5.1992,  the  Architect  of  the  respondents  made  an  

application to the MCGB for grant of TDR in respect of 3500  

sq. metres of area already surrendered by the respondents to  

appellant No.1.  The petitioners also paid the sum of Rs.3  

lakh  15  thousand  (principal  amount  of  Rs.90,000/-  and  the  

interest @ 10 % per annum) from the date of payment till the  

date of re-payment as agreed to in the consent terms.

On  22.01.1993,  the  respondents  addressed  a  letter  to  the  

Assessor and Collector asking for further details relating to  

the work to be carried out on the said 3500 sq. metres of  

land.  On 5.3.1993 the Assessor and Collector of the appellant  

No. 1 herein addressed a letter to the respondents herein  

enclosing a sketch plan of for the proposed export office  

together with development of yard.  It was informed in the  

said  letter  that  as  per  the  directions  of  the  Municipal  

Commissioner, additional TDR in lieu of the development of

export yard and construction of office would be granted to the  

respondents.  The respondents were also requested to expedite  

the work of construction of export office.

On  7.6.1993,  a  letter  was  addressed  by  Municipal  

Architect to the respondents herein enclosing specifications  

for asphalting.  It was mentioned that this work to be carried  

out under the supervision of Municipal engineer.    

By  a  further  letter  dated  23.6.1993,  the  Chief  

Engineer informed the petitioners that the development right  

certificate  would  be  issued  after  compliance  with  certain  

additional  requirements  contained  in  the  said  letter.   On  

13.9.1993,  the  respondents  herein  wrote  a  letter  to  the  

Assistant Engineer informing about the various compliances and  

requesting  for  issue  of  development  right  certificate  in  

respect of 3500 sq. metres.

On  9.2.1994,  it  was  informed  by  a  letter  that  the  

respondents’ right to grant development certificate would be  

considered after they commence the work of construction of the  

export  office.   Further  on  22.2.1995,  the  Chief  Engineer  

addressed a consent letter to the respondents certifying his  

no  objection  for  constructing  the  export  office  building  

subject to the terms and conditions mentioned in the said  

letter.   Condition  Nos.  1  and  4  in  the  said  letter  are  

relevant for the issued involved.  They are as under:-

“1. That you will construct the Export Office building  as per the plans & specifications of the Municipal  Corporation  enclosed  herewith  and  the  Municipal  Corporation will grant the Transferable Development  Rights equivalent to the builtup area of the Export  Office.

4. That you will concrete/ asphalt the portion of the  Export  Office  Yard  around  the  Export  Office  building as per the specifications of MCGB and as  given by the Chief Engineer (Roads  & SWD) of the  MCGB.   The  work  will  be  carried  out  under  the  Municipal  supervision  and  certified  by  the  Competent  Authority.   The  Municipal  Corporation  will grant the benefit of Transferable Development  Right in respect of the concrete/asphalted surface  area around the Export Office building as and when  the quantum of such TDR is decided by the Municipal  Commissioner.”

(emphasis supplied)

6. The  petitioners  constructed  the  export  office  and  also  

developed  the  surrounding  area.   The  possession  of  the  export  

office and the courtyard was handed over to the the MCGB for which  

a  possession  receipt  was  also  issued.   Possession  receipt  

mentioned the details of the constructed amenity as under:-

“CTS No.137A Export Office Gr.FI.293.13 sq. Electric of  village & chowky for m. 1st FI.170.15 fittings Mulund  (East)  octroi  Deptt.  sq.m.  Exit.  Fixtures  as  office  27.88 sq. advised by E.E.(Mech) & Water cooler- Total  491.16.sq.m.

CTS No.137A Court yard of Area as shown by Electric of  village Export office A B C D E F G H poles and Mulund  (East) office I JK on the plan carriage duly certified  by  entrance  to  Roads  Deptt.  under  plot  &  front  No.DYCHE/1486/compound/ Rds.dt.23.2.96 wall.”

7. An application was made by the respondents’ Architect for  

DRC.  On 19.1.1999, DRC for TDR in respect of export office being  

491.16 sq. metres equivalent of the 100 per cent of the built up  

area of the export office was granted.  However, insofar as the  

additional transferable rights in lieu of the development of the  

export courtyard surrounding the export office was concerned, the  

same was restricted to 466.96 sq. metres being 15 per cent of the  

built up area of the courtyard.  This was the first flash point.  

On 7.3.2000, the petitioners by their letter claimed that they  

were entitled to the additional transferable rights to the extent

of 3113 sq. metres as against the development of the courtyard of  

export office on which they had done the asphalting work.  On  

27.6.2000, the Chief Engineer refused to grant further additional  

TDR contending therein that the TDR issued was in accordance with  

the BMC policy.  Once again, a demand was made by communication  

dated 6.7.2000 for the balance area and also requested the MCGB  

for the particulars of the alleged policy.  It was informed herein  

that there was a circular dated 9.12.1996 which formulated the  

policy.  The respondents were invited for discussion.  A contempt  

application  was  also  filed  by  the  respondents  being  Contempt  

Petition No.116 of 2000, contending therein that the consent order  

dated 10.3.1992 was violated.  The said contempt petition was  

dismissed holding that there was no willful disobedience.  On  

23.12.2003, the respondents again addressed a letter to the MCGB  

calling them upon to grant further DRC for the remaining 85 per  

cent of the area of the courtyard and since the demand was not  

met, the writ petition came to be filed.  

8. The  writ  petitioners-respondents  mainly  relied  on  the  

consent terms dated 10.3.1992 and, more particularly, on Clause 9  

and contended that they were entitled to the benefit of additional  

TDRs as they had developed not only the export office of the MCGB  

but also done the asphalting work of the surrounding area, more  

particularly, in accordance with the Regulations.  Appendix VII,  

Sub-Clause  6  of  Regulation  34  of  the  Regulations  were  also  

reiterated  in  the  letter  issued  by  the  Chief  Engineer  dated  

22.12.1992.  Further condition No. 4 provided that the MCGB will  

grant benefit of transferable development rights in respect of the  

agreed asphalted surface area, the export office building as and

when  the  quantum  of  such  TDR  is  decided  by  the  Municipal  

Commissioner was also relied upon.  They pointed out that the  

Municipal  Commissioner  could  not  have  relied  on  a  subsequent  

circular dated 9.12.1996 and had to go strictly by the language of  

Clause 6 of Appendix VII of Regulation 34 of the Regulations under  

which they were entitled for an area equivalent 100 per cent of  

the area of the courtyard which they had developed.  In short,  

they pointed out that limiting that area only to 15 per cent and  

granting DCR only in respect of that much of area was wholly  

illegal.

9. On  the  other  hand,  it  was  contended  on  behalf  of  the  

appellants herein that Regulations 33 and 34 of the Regulations  

were only enabling provisions and did not create any legal right  

to get additional TDR.  The appellant also relied on the circular  

dated 9.12.1996 and it was contended that as per this circular  

various  amenities  were  described  where  100  per  cent  FSI  was  

admissible in respect of some amenities and in respect of others  

only  15  per  cent  of  additional  development  rights  could  be  

admissible.  It was mainly contended that the courtyard and the  

development  therein  did  not  amount  to  an  amenity  within  the  

meaning of Section 2 (7) of the Regulations.  The High Court  

allowed the writ petition.  It was held that the Regulations had  

statutory force and Clause 6 of Appendix VII of Regulation 34 of  

the Regulations provided for benefit to be enjoyed by a person who  

constructed the amenity.  Relying on the plain language of Clause  

6, it was held that the respondents herein were entitled to 100  

per  cent  DCR  rights.   The  High  Court  also  held  that  the  

aforementioned circular dated 9.4.1996 was of no consequence vis-

à-vis the specific language of Clause 6 of Appendix VII Regulation  

34 of the Regulations.  The High Court also relied on the judgment  

of this Court reported as Godrej & Boyce Manufacturing Co. Ltd.  

v. State of Maharashtra & Ors. [2009 (5) SCC 24].   The High Court  

came to the conclusion that the above mentioned decision of this  

Court applied on all fours to the present matter.

10. Shri  Uday  Lalit,  learned  senior  counsel  appearing  on  

behalf of the appellants herein firstly contended that the above  

mentioned decision was distinguishable.  According to him, in that  

decision the Court was considering whether a road constructed by  

the owner would entitle the owner to additional TDR.  He further  

argued that the road was undoubtedly an amenity under Maharashtra  

Regional and Town Planning Act (hereinafter called “the Act” for  

short) as also under the Regulations.  Learned counsel further  

argued  that  in  the  present  case  the  additional  TDR  was  being  

claimed on the basis of the work of asphalting of the courtyard  

and, therefore, it could not be held to be an amenity entitling  

the owner to the additional TDR.  

11. It was further submitted that the circular dated 9.4.1996  

had no bearing in Godrej & Boyce’s case (cited supra) since it was  

issued after the land owners had surrendered their plot of land  

after  construction  of  the  roads  as  required  by  the  Municipal  

Council while in the present case the said circular was issued  

prior to the respondent Nos.1 and 3 completing the construction of  

an export office and asphalting of the courtyard and handing over  

the  possession.   The  counsel  further  urged  that  the  question  

arising in the present case was different in the sense that in the  

present case, the question was whether under sub-regulation 6 of

Appendix  VII  of  Regulation  34,  it  was  mandatory  for  the  

Commissioner  or  the  appropriate  authority  to  grant  100  %  TDR  

equivalent to the entire area of the courtyard.  Lastly, it was  

contended that in  Godrej & Boyce’s case, the difference between  

Regulations 5 and 6 of Appendix VII was not noticed.  

12. The  learned  senior  counsel  also  urged  that  Clause  6  

applied  only  to  the  developed  or  constructed  amenity  and  

asphalting the courtyard could not be covered under the same.  Our  

attention was drawn to the definition of ‘amenity’ and it was  

contended that the courtyard could not be covered under the same.  

The learned senior counsel further urged that the High Court had  

not properly interpreted the consent terms as also Clause 4 of the  

letter  dated  22.2.1995.  It  was  urged  that  that  unlike  sub-

regulation 5, the wording in sub-regulation 6 confers a discretion  

on the authority.  Our attention was drawn to the difference in  

language by contending that while in clause 5 the wording used is  

“shall  be  equal  to”  and  in  clause  6,  the  same  was  “may  be  

granted”.  Our attention was also drawn to the phraseology used in  

the two clauses.  While in clause 5, the wording used was “equal”,  

in clause 6 it was “equivalent”.  It was also urged that by  

circular dated 9.4.1996, arbitrary exercise of discretion by the  

Commissioner was avoided and that was the main purpose of bringing  

in the circular.  The same provided definite guidance in respect  

of the extent of TDR that was to be granted by the Commissioner  

/competent authority.  Lastly, it was urged that asphalting of the  

courtyard was a separate activity.  It had got nothing to do with  

the consent terms. As regards the letter dated 22.2.1995, and more  

particularly, clause 4 therein, it was urged that under the same

the respondents had specifically agreed that the quantum of the  

TDR to be granted was to be decided by the Municipal Commissioner  

and, therefore, the respondents could not turn back and urge that  

they would be entitled to the 100% TDR.   

13. As  against  this,  Shri  Ashok  H.  Desai,  learned  senior  

counsel appearing on behalf of the respondents pointed out that  

the matter was fully covered by the decision in the aforementioned  

case of Godrej & Boyce (cited supra).  The learned senior counsel  

pointed out that it was a misnomer to say that asphalting was not  

an amenity.  He pointed out that unless the asphalting was done,  

the basic purpose of constructing the octroi duty office would  

have been frustrated as there would be no place for the large  

number of vehicles to be parked.  The learned counsel also pointed  

out, relying on the provisions of DCR, that the courtyard, though  

was  separately  mentioned  and  explained  in  the  Rules,  the  

asphalting therein would certainly be an amenity.  The counsel  

urged about the letter dated 22.2.1995, that even if it was the  

discretion to decide about the quantum of grantable TDR, the said  

discretion  could  not  have  been  used  in  contravention  of  the  

Regulations.  He pointed out that on that date, the circular was  

nowhere which came much later and as such it could not have been  

made applicable with retrospective effect.  The learned senior  

counsel also urged that the interpretation put forward by the  

appellants of Clauses 5 and 6 was incorrect and in fact there was  

very little or no difference.  The learned senior counsel stressed  

the implication of Clause 6 and pointed out that there was no  

scope  for  the  interpretation  tried  to  be  put  forward  by  the  

appellant MCGB.  Learned senior counsel wholly supported the High

Court judgment.

14. It  will  be  our  task  to  examine  as  to  whether  the  

aforementioned  ruling  in  Godrej  &  Boyce’s case (cited  supra)  

clinches the issue.  The factual scenario in both the matters is  

almost identical.  The only difference is that in that case, the  

land owners had developed the roads while in the present case, the  

land owners have developed the courtyard by asphalting the same.  

In Godrej & Boyce’s case (cited supra), the reliance was only on  

the  same  circular  dated  9.4.1996  issued  by  the  Municipal  

Commissioner of the MCGB.  That was by far the only defence.  In  

that case, the State had argued that the law provides for the  

grant of additional FSI or TDR commensurate to the value of the  

amenity constructed by the landowner and the meaning of Para 6 of  

Appendix  VII  to  the  Regulations  would  be  clear  by  reading  it  

alongwith other provisions of the Regulations and the parent Act.  

The State had argued that the said circular dated 9.4.1996 was  

clarificatory and fully applied to the claims of the appellants in  

that case which were even prior to the said circular being born.  

After taking the full resume of the provisions of the Act as also  

the Regulations, the Court went on to hold firstly that as per  

Regulation 2(2) of the Regulations, any terms and expressions not  

defined  in  the  Regulations  shall  have  the  same  meaning  as  in  

Bombay Municipal Corporations Act, 1888 and the Rules and Bye-laws  

framed  thereunder,  as  the  case  may  be,  unless  the  context  

otherwise required.  The Court then went on to hold that the term  

“amenity” which was defined under Regulation 3 Clause (7) was much  

restricted than the one given under the Act, inasmuch as the sport  

complex, parade grounds, gardens, markets, parking lots, primary

and  secondary  schools  and  colleges  and  polytechnics,  clinics,  

dispensaries and hospitals were not included in the definition of  

“amenity”.  The Court, however, found that the road was common to  

definitions, both, under the Act and the Regulations and it was  

defined in the widest possible terms in Clause (76) of Regulation  

3.

15. After  considering  the  concepts  like  “floor  spare  index  

(FSI)”, “Additional FSI” and “TDRs”, the Court considered Appendix  

VII referred to in Regulation 34 of the Regulations, the Court  

then took the stock of the argument that the envisaged grant of  

FSI or TDR was under two separate heads, one, for the land and the  

other for the construction of the amenity for which the land was  

designated in the development plan, at the cost of the owner.  The  

Court referred to Section 2(9-A), as also to Section 126(1)(b).  

Taking note of Para 6 of Appendix VII of the Regulations, the  

Court noted that the additional DR for construction of the amenity  

for which the surrendered plot was designated in the development  

plan at the owner’s cost provided for a further DR in the form of  

FSI “equivalent to the area of the construction/development”.  The  

Court also noted the argument that this grant of additional DR  

could not be on a sliding scale for construction/development of  

different kinds of amenities on the surrendered land and thus, it  

could  not  be  reduced  or  curtailed.   After  taking  into  

consideration  the  circular  dated  9.4.1996  and  noting,  

particularly, para 3 thereof, the Court also noted that in that  

case, the earlier granted TDR @ 15% was increased to 25%.  The  

Court also noted the further argument that the Regulations framed  

under  the  Act  had  statutory  force  as  held  in  Pune  Municipal

Corporation Vs. Promoters and Builders Assn. [2004 (10) SCC 796].  

As  against  this,  the  circulars  issued  by  the  Municipal  

Commissioner were simply executive instructions and thus could not  

override or supersede the provisions of the Regulations.  The  

Court also noted the argument that since the Municipal authorities  

were fully aware and conscious of this legal position, they had  

requested to the State Government to suitably modify Para 6 of  

Appendix VII of the Regulations.  The non-retrospectivity of the  

circular dated 9.4.1996 was also noted.   

16. All these arguments were tried to be countered in that  

case, basically on the ground that the grant of additional TDR for  

construction of all different kinds of amenities equal to the area  

of  the  construction  was  illogical,  unreasonable  and  

discriminatory.  It was also urged that the law contemplated grant  

of further additional TDR commensurate to the value of the land  

constructed/developed on the surrendered land.  This argument was  

specifically refuted.  In the present case, Shri U.U. Lalit also  

tried to argue the same aspect that as against the value or the  

expenditure spent for asphalting, the claim for TDR over the area  

would be an excessive claim if the values are to be compared.  In  

short, the argument was that the value of asphalting would be  

nothing in comparison to the claim of 100% TDR for the whole  

courtyard.  The Court did not accept this proposition which was  

accepted by the Bombay High Court in that case.  Relying on the  

language of Section 126(1)(b) and the use of the word “against”  

therein in respect of the area of the land surrendered and the  

further use of the word “against” in respect of the development or  

construction of amenities of the surrendered land, the Court held

that what was contemplated by law was to recompense the landowner.  

However, Para 5 of the Appendix VII to the Regulations used the  

words “equal to the gross area of reserved plot”, and, therefore,  

there was no difficulty insofar as the bare land was concerned.  

The  Court  then  went  on  to  consider  the  effect  of  the  words  

“equivalent to the area of the construction/development” in Para 6  

of the Appendix and noted in paragraph 58 of the judgment to the  

effect that the argument on behalf of the Government, though not  

without substance, had to be rejected as it was not in keeping  

with  the  law  as  it  stood  and,  therefore,  the  value  of  the  

development/construction could only be made the basis for granting  

additional FSI or TDR by making suitable amendments in the law and  

not by an executive circular.  In short, the Court came to the  

conclusion that (1) construction of the road was undoubtedly an  

“amenity”, (2) under the express language of Section 126(1)(b)  

read  with  Para  6  of  the  Appendix  VII,  the  use  of  the  word  

“equivalent” would entitle the owner of the building to 100% for  

the  construction  of  an  amenity  at  owner’s  cost,  and  (3)  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.   

17. In view of this unequivocal declaration of law by this  

Court in the aforementioned case of Godrej & Boyce (cited supra),  

in fact, law seems to be fully settled against the appellants.  It  

is, however, argued that asphalting of the courtyard could not be  

said to be an “amenity”.  The argument must fail as the very  

stance on the part of the MCGB to provide 15% of additional TDR  

for  asphalting  the  courtyard  would  contain  an  admission  that

asphalting of the courtyard would amount to an amenity.  Had it  

not been so, the MCGB could have conveniently said that it would  

not provide even 1% of additional TDR to the respondents herein.  

Further, considering the definition of “amenity” under Regulation  

3(7)  of  the  Regulations,  which  includes  open  spaces,  parks,  

recreational grounds, play grounds etc., we have no difficulty in  

holding that asphalting the courtyard would certainly amount to an  

amenity.   The  building  offered  to  be  constructed  by  the  

respondents herein 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 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.  On  

this count, the argument of the appellants must fail.

18. Shri  U.U.  Lalit,  learned  senior  counsel  appearing  on  

behalf of the appellants then urged that the respondents herein  

had specifically agreed in the letter dated 22.2.1995 and more  

particularly  in  terms  of  para  4  thereof  that  the  Municipal  

Corporation  will  grant  the  benefit  of  TDR  in  respect  of  the  

concrete/asphalted surface area around the Export Office building  

as and when the quantum of such TDR is decided by the Municipal  

Commissioner.  It was very earnestly argued by the learned senior  

counsel that thereby the respondents had compromised their rights  

and had left it to the discretion of the Municipal Commissioner  

and, therefore, they could not turn around and say that it was not  

for the Municipal Commissioner then to decide the quantum as per  

his own discretion.  The argument is clearly incorrect for the

simple reason that on the day when this letter was signed, the  

aforementioned circular dated 9.4.1996 was nowhere in existence.  

The respondents, therefore, had no reason to believe that the  

Municipal Commissioner would decide to scale down the entitlement  

which they legitimately expected because of clauses 5 and 6 in  

Appendix VII.  The aforementioned letter merely provided that the  

quantum could be decided in terms of the area of courtyard to be  

developed and the grant of TDR would depend upon as to whether  

that much area was fully developed as per the satisfaction of the  

Municipal Commissioner.  The scope of Para 4 could not be taken  

beyond this.

19. Shri Lalit, learned senior counsel, relying on clause 15,  

also argued that the land owner was to get the TDR only on the  

land being levelled to the surrendering ground level and a 1.5  

metres high compound wall was constructed with a gate, at the cost  

of the owner.  That may be so; however, in our view, the agreement  

on the part of respondents to construct such a compound wall and  

gate and to do the levelling of the land before handing over the  

land  admeasuring  3500  sq.  metres,  would  be  of  no  consequence  

insofar as the present controversy is concerned.  The further  

argument of the learned senior counsel about the difference in the  

phraseology in clauses 5 and 6 i.e. the word “equal” having been  

used in clause 5 and the word “equivalent” having been used in  

clause 6 would also be of no consequence as, in our opinion, the  

same has been concluded by the aforementioned ruling of this Court  

in  Godrej & Boyce’s case (cited supra) against the appellants,  

and, therefore, the argument that it gives a discretion to the  

Municipal authorities to scale down the grantable TDR, does not

impress us.

20. That  apart,  in  the  aforementioned  ruling  in  Godrej  &  

Boyce’s case (cited supra), the Court has clearly held that in a  

circular, the Corporation could not have created divisions in the  

total amenities in the sense that it could not have chosen to  

grant 100% of additional TDR in favour of some amenities and 15%  

in case of some others.

21. Shri Lalit, learned senior counsel has also reiterated the  

argument regarding the value of construction vis-à-vis the grant  

of TDR, which question, in our opinion, is not open in view of the  

unequivocal finding given on that question in the aforementioned  

ruling in Godrej & Boyce’s case (cited supra).

It was tried to be suggested that in asphalting of the  

courtyard there was no element of development as, according to the  

learned senior counsel, the term “development” meant building,  

engineering, mining or other operations in, or over, or under land  

or the making of any material change in any building or land.  The  

argument is wholly incorrect, as had this not been development,  

the MCGB would not have agreed to provide even 15% of the TDR  

therefor.

22. Lastly, Shri Lalit, learned senior counsel urged that the  

ruling in Godrej & Boyce’s case (cited supra) was distinguishable  

inasmuch as under the said ruling what was considered was the  

construction of road which was not equivalent to asphalting of a  

courtyard.  We have already pointed out that the question was not  

of the construction of a road or asphalting of a courtyard; the  

question was whether it was an amenity.  Once it is held as an

amenity,  there  will  be  no  question  of  refusing  the  right  of  

equivalent TDR therefor.  It was then urged that the circular  

dated 9.4.1996 in Godrej & Boyce’s case (cited supra) was issued  

after the  land  owners  had  surrendered  their  plot  of  land  and  

completed the construction of roads as required by the Municipal  

Corporation,  whereas  in  the  present  matter,  the  circular  was  

issued “prior to” completion of the construction of the export  

office by respondents 1 to 3 and asphalting of the courtyard and  

handing over of the possession by them.  In our opinion, this  

cannot be the distinguishable feature, as under any circumstance,  

the circular dated 9.4.1996 was issued much after the compromise  

in the writ petition and the issuance of letter of intent dated  

22.2.1995.

23. No other point was urged before us.

24. We  are,  therefore,  of  the  clear  opinion  that  the  High  

Court was right in allowing the writ petition and granting 100%  

TDR as against the development of courtyard by asphalting the  

same.  We find no merits in the appeal.  The appeal is, therefore,  

dismissed. No costs.

………………………………..J.    (V.S. Sirpurkar)

………………………………..J.    (T.S. Thakur)

New Delhi; March 17, 2011.