16 Sep 2023 9:00 AM GMT
The Bombay High Court has granted compensation to a company in lieu of its land used for the elevated Sahar Elevated Road which allows connectivity to the Chhatrapati Shivaji Maharaj International Airport.“We see no possibility at all in law of private property being taken away for a public purpose without some form of compensation, whether in cash or in kind (in the form of TDR/a DRC),...
The Bombay High Court has granted compensation to a company in lieu of its land used for the elevated Sahar Elevated Road which allows connectivity to the Chhatrapati Shivaji Maharaj International Airport.
“We see no possibility at all in law of private property being taken away for a public purpose without some form of compensation, whether in cash or in kind (in the form of TDR/a DRC), at least not without running afoul of Article 300A of the Constitution of India,” the division bench of Justices Gautam Patel and Kamal Khata observed.
In an “utterly unique situation”, both planning authorities - the Mumbai Metropolitan Region Development Authority (MMRDA) and Brihanmumbai Municipal Corporation (BMC) claimed they had no control over the 730 sq meter plot used for the road. The portion is part of a larger land parcel of 22,000 sq meters.
Therefore, the question before the court was who would compensate the petitioner.
In a subsequent resolution the bench directed the Brihanmumbai Municipal Corporation to grant Eversmile Construction Company Pvt Ltd. the applicable Transferable Development Rights (TDR) in lieu of its land.
“For it seems that there is even today in this city of Mumbai a piece of land that lies outside the control and command areas of every known public planning authority,” the bench of remarked in their order.
The petitioners had approached the court seeking compensation for their land on which a 27.5 meter DP road is built and handed over to the Mumbai International Airport Limited (MIAL).
Represented by Senior Advocate Pravin Samdani they submitted that the land was taken over either by the BMC or the MMDRA, a road was constructed and handed over to MIAL. Therefore, either BMC hands over the TDR or MMRDA directs BMC to handover TDR.
However, both authorities claimed they weren’t responsible for the road. While BMC showed willingness to issue TDR only if it was asked to do so by the appropriate planning authority, MMRDA said it was the Special Planning Authority for airport land but not the access road.
“We are unable to accept the resultant and inevitable situation, viz., that the land is not taken over by MMRDA and is also not taken over by MCGM to be given to MIAL. For if that be so, then MIAL cannot possibly have the road, and the Petitioner is entitled to take it back, to destroy or pull down the ramp or the Sahar Elevated Road.”
The State government in its affidavit agreed the petitioners were entitled to compensation. In a subsequent affidavit MMRDA reiterated it was not the planning authority for the land but agreed to make a recommendation for TDR for the petitioner.
“We are mindful of the resultant chaos if compensation in this form is not granted to the Petitioner,” the court observed and directed BMC to issue TDR in the form of Development Right Certificates to the petitioner with four weeks.
The peculiar situation before the court was the absence of a planning authority that would have control over 730 sq meters of land used for the road.
In an order dated August 31, 2023 the court directed the petitioners to either handover the land or MMRDA and
"We see no manner in which the holder of a property can be denied a legitimate and recognised form of compensation for the taking over of a part of that property for a public use. Either there has to be compensation under an acquisition act or some form of compensation must be given in kind, for instance by additional FSI, transferable development rights, etc."
Appearance - Sr. Adv Pravin Samdani, Advs Shivani Khanwilkar and Mustafa Nulwala for DSK Legal
Adv Abhay Patki, Addl GP, for State
Adv Pooja Yadav, for MCGM
WP - 20223 OF 2023
Case title - Eversmile Construction Company Pvt Ltd & Anr vs Municipal Corporation of Greater Mumbai & Or