DSK Legal advised Eversmile Construction
DSK Legal advised, assisted and represented M/s. Eversmile Construction Company Private Limited (Eversmile Construction) who have the development rights over the land upon which, parts of the ramp and Sahar Elevated Road for approach, ingress and egress to Airport Terminal Building, has been constructed and is being maintained by Mumbai International Airport Limited (“MIAL”).
The Writ Petition was filed due to the conduct and complete inaction on the part of
(i) Municipal Corporation of Greater Mumbai (“MCGM”);
(ii) Mumbai Metropolitan Region Development Authority (“MMRDA”); and
(iii) Urban Development Department (“UDD”) to take necessary steps to grant compensation in the form Transferrable Development Rights (“TDR”) to Eversmile Construction despite taking over their land for the purpose of constructing a vital public road.
Eversmile Construction had issued various correspondences to MCGM seeking compensation in the form of TDR, and upon being intimated by MCGM that MMRDA is the special planning Authority appointed for the said land, correspondences were issued to MMRDA seeking their recommendation to MCGM to grant compensation in form of TDR. However, the same was avoided by MCGM and MMRDA by way of circuitous correspondence wherein they have only passed the buck to each other with no intention of compensating Eversmile Construction.
As per the provisions of the Maharashtra Regional Town Planning Act, 1966 (“MRTP Act, 1966”), once a land is reserved for public purpose, the same can be acquired by either the Planning Authority, the Development Authority, or any Appropriate Authority, by using one of three modes:
• By agreement, by paying an amount agreed to;
• By agreement, by issuing TDR in lieu of monetary compensation; or
• By the State Government acquiring the land under the Right to Fair Compensation, Transparency in Land Acquisition, Relief and Settlement Act, 2013 pursuant to an application to that effect.
However, MCGM and/or MMRDA without following any of the aforesaid three modes permissible under the MRTP Act, 1966, have taken over possession of the land.
Therefore, in the above circumstances, there were only two possibilities that could arise:
(i) MCGM has taken over the land and constructed the Sahar Elevated Road and therefore, MCGM must compensate Eversmile Construction by issuing TDR;
(ii) MMRDA has taken over the land and constructed the Sahar Elevated Road and therefore, MMRDA must compensate Eversmile Construction by recommending the MCGM to issue TDR.
Considering the above circumstances the Bombay High Court was of the view that in no manner can the holder of a property be denied a legitimate and recognized form of compensation for the taking over of a part of the property for public use, and in the event the compensation in form of TDR was not granted to Eversmile Construction, it would result in a chaos viz. that considering that neither MCGM nor MMRDA had taken over the said land to give it to MIAL, Eversmile Construction would be entitled to take it back, to destroy or pull down the ramp or the Sahar Elevated Road.
Therefore, in view of the public interest at large the Court vide Order dated September 13, 2023, granted prayer clause A and B of the Writ Petition viz.
(i) directing the Respondents to accept the surrender of the said land pursuant to the application made by Eversmile Construction in 2018; and
(ii) directing the Respondents (or any of them as may be determined) to grant TDR in the form of development right certificate (“DRC”) to Eversmile Construction against the said land in accordance with the prevailing Development Control Regulations. However, the Court molded the aforementioned prayers by issuing directions against MCGM to issue the necessary DRC after completion of all formalities within a period of four weeks from the date of the order.
The DSK Team comprised of Samit Shukla (Partner), Shivani Khanwilkar (Senior Associate) and Mustafa Nulwala (Trainee)