MUMBAI: In a victory for landowners whose plots were surrendered for public amenities, the Supreme Court on Friday held that there is a duty cast on the state to pay compensation to those who lose their land. It said that failure to do so would amount to a breach of Article 300-A of the Constitution — right to property. Once compensation is determined in the form of TDR, it is payable even in the absence of any representation made by the landowner.
Article 300-A says a citizen cannot be deprived of his property except by following the process of law.
The Supreme Court set aside a 2018 judgment of the Bombay high court which had dismissed a bunch of petitions by builders on the grounds that there was about eight to 13 years’ delay in their seeking TDR as compensation for lands taken by the BMC for public projects, mainly Development Plan roads.
The high court had, on grounds of “delay and laches”, rejected pleas for compensation from the BMC in lieu of land surrendered for public amenities.
The high court was not right in dismissing the writ petitions on the grounds of delay and laches, held the Supreme Court bench of Justice B V Nagarathna and Justice N K Singh, invoking principles laid down by the apex court in its earlier, 2009 decision involving Godrej & Boyce and the state govt scheme of land acquisition and regulations that control development in the state.
The Supreme Court allowed over half a dozen appeals filed by Kukreja Constructions and others against a portion of the high court order of Dec 18, 2018, and directed the BMC to consider their case and release to them expeditiously, and latest in three months, the additional buildable space and TDR. In one case alone, the TDR to be handed over to a builder is over 6,000 sq m.
The apex court judgement will require the BMC to extend transferable development rights (TDR) worth Rs 500 crore cumulatively at a conservative estimate, said lawyers.
The BMC had filed three appeals against a part of the 2018 high court judgment that had directed it to pay compensation ranging from 75% to 100% additional TDR to several landowners and builders Apurva Natwar Parikh and Co as losers of land who applied soon enough. The Supreme Court found no merit in the BMC appeals and, dismissing these, held the high court decision by a bench of then Justice Abhay Oka and Riyaz Chagla to be “just and proper”.
Petitioners before the high court and Supreme Court included one of the largest landholders of the city, Byramjee Jeejeebhoy, an HUF, Jitendra Sheth, and others. Represented by leading law firms and top counsel including Pravin Samdani, Amar Dave, Samit Shukla, Mahesh Agarwal and Shikhil Suri, the landowners’ plea was that they had laid the roads at their cost and surrendered the land to the corporation, only to receive nothing in return, though entitled by law to receive from the state a fair compensation, a vested and constitutional right guaranteed under Article 300-A of the Constitution.
They also argued that denial of compensation would amount to “usurping the citizens’ property” without authority of law and in breach of the constitutional rights. It was argued that regulations state that if a landowner also developed the amenity, he became eligible to receive additional compensatory TDR.
The state cited a Nov 2016 notification that had amended the law to deny such compensation. Samdani said an amendment cannot deprive the owner of his constitutionally guaranteed right to a payout for his land, especially when a prior law gave such entitlement.
WHAT THE SC HELD
The SC analysed the judgments and noted that the compensation claim for additional TDR, which a landowner was by law granted for the construction of amenities, was in suspended animation till its 2009 Godrej & Boyce I judgment on the scheme of land acquisition. It noted that the landowners before it had been granted 25 percent TDR for the surrender of land and had applied mostly after 2009 for the surrender of lands made years ago.
The SC held that the question of delay would not arise. “Rather the delay has occurred on the part of the Mumbai Municipal Corporation in complying with the Regulations insofar as these appellants are concerned,” said the SC, adding, “When relief in the nature of compensation is sought, as in the instant case, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made,” it ruled.
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