The Bombay High Court, in a judgment dated August 16, 2024, dismissed the petition filed by Bholenath Developers Ltd. & Anr. against the State of Maharashtra and others regarding the entitlement to incentive Transferable Development Rights (TDR) under the 2016 Notification. The petitioners argued that they were entitled to the incentive TDR as they had filed an application within one year from the date of the Notification. However, the court ruled that entitlement to incentive TDR would only arise upon the surrender of the land in question and not merely by filing an application.
The petitioners sought the issuance of a Development Rights Certificate (DRC) by offering to hand over the subject plot as per the 2016 Notification, issued under Section 37 of the Maharashtra Regional and Town Planning (MRTP) Act, which regulated the grant of TDR under Regulation 34 of the Development Control Regulations 1991 (DCR 1991). The petitioners claimed they were denied the 20% incentive TDR, which was contrary to the concluded contract between them and the Municipal Corporation of Greater Mumbai (MCGM) after the issuance of a Letter of Intent (LoI) on January 20, 2018.
Court’s Findings
The court emphasized that the right to incentive TDR accrues only upon the actual surrender of the land, not at the time of filing an application. The court referenced the case of Apurva Natvar Parikh & Co. Private Limited, which held that the right to FSI/TDR accrues at the time of surrender. The petitioners had not surrendered the land before the Development Control and Promotion Regulations 2034 (DCPR 2034) came into force, making them ineligible for the incentive TDR under the 2016 Notification.
Conclusion
The court also rejected the argument that the LoI constituted a concluded contract, stating that the LoI only indicated that the request for Development Right Certificates would be considered after fulfilling certain conditions. Since the land was surrendered only on March 22, 2019, after the DCPR 2034 came into force, the court concluded that the 2016 Notification did not apply, and the petition was dismissed.