The said claim has been resisted and rejected by the Pune Municipal Corporation and the State of Maharashtra, the two appellants in the appeals under consideration, on the ground that the land in question was not reserved for a public purpose in the development plan prepared under the MRTP Act and being shown as an existing garden therein, the claim to TDR has no legal basis….. The High Court took the view that it cannot be understood as to how there can be a difference between land “which was part of a development plan reserved by the Government or a part of the development plan submitted by the petitioner in which the land in question was shown as a garden”. Laying emphasis on the relevant DCR i.e. N-2.4.17(ii), the High Court took the view that no such distinction is disclosed therein and going by the language of the DCR the respondent Society was entitled to TDR as compensation for the land was not received by it….. In its simplest form, the concept of TDR involves the surrender of land reserved for various public purposes in the development plan free of cost and in exchange thereof grant of TDR entitling the holder thereof to construct a built up area equivalent to the permissible FSI of the land handed over by him on one or more plots in the zone specified. Such rights are transferable….. The rejection of the claim of the respondent Society to TDR under the MRTP Act read with DCR N-2.4.17 is seriously flawed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3008-3009 OF 2010
PUNE MUNICIPAL CORPORATION & ANR Vs KAUSARBAG COOP. HOUSING SOCIETY LTD. & ANR.
Citation: 2015(2) ALLMR942 SC
RANJAN GOGOI, J.
1. The controversy in the present appeals arises out of
the claim of the respondent-writ petitioner, a housing
society, to Transferrable Development Rights (TDR) under
the relevant Development Control Regulations (DCR) i.e. N-
1
Page 2
2.4 framed under the Maharashtra Regional and Town
Planning Act, 1966 (for short “the MRTP Act”). The said
claim has been resisted and rejected by the Pune Municipal
Corporation and the State of Maharashtra, the two
appellants in the appeals under consideration, on the ground
that the land in question was not reserved for a public
purpose in the development plan prepared under the MRTP
Act and being shown as an existing garden therein, the claim
to TDR has no legal basis. There are additional grounds for
the rejection, details whereof will be, noticed in the course of
the narration to be made hereinafter. The land in question
measured about 3.5 acres and was covered by Survey No.12
(Part) located at Kohdhava Khurd, Pune. The view of the
High Court being in favour of the respondent (writ petitioner)
society, the Pune Municipal Corporation and the State of
Maharashtra have filed the two appeals in question.
2. The core fact that emerges from the multitude of
collaterals and the exhaustive pleadings of the parties is that
the land in question was shown by the respondent Society
itself in the lay out plan submitted by it to the Pune
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Page 3
Municipal Corporation, as reserved for garden. Acquisition of
the said land was initiated in the year 1982 (28.01.1982)
under the provisions of the Land Acquisition Act, 1894 and
the same was completed in the year 1987 whereafter
possession of the land was taken over on 19.02.1987. In the
draft development plan dated 15.09.1982 that was prepared
and published under the provisions of the MRTP Act, which
was subsequently approved and sanctioned on 05.01.1987,
the land was shown as an existing garden. The close
proximity of time between the two parallel process is too
significant to be overlooked. While according to the
respondent-writ petitioner the stage and the manner of the
inclusion of the land in the development plan is of no
consequence to the issue arising i.e. entitlement to TDR, the
State contends that the land was acquired under a nondevelopment
plan proposal which would not attract the
provisions of the MRTP Act.
3. The High Court took the view that it cannot be
understood as to how there can be a difference between
land “which was part of a development plan reserved by the
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Page 4
Government or a part of the development plan submitted by
the petitioner in which the land in question was shown as a
garden”. Laying emphasis on the relevant DCR i.e.
N-2.4.17(ii), the High Court took the view that no such
distinction is disclosed therein and going by the language of
the DCR the respondent Society was entitled to TDR as
compensation for the land was not received by it. The High
Court also noticed the various communications brought on
record by the respondent-writ petitioner to show that, at
different stages, the authorities of the Municipal Corporation
as well as those of the State of Maharashtra had
unequivocally indicated the entitlement of the respondentwrit
petitioner to Transferable Development Rights. The
High Court also held that the directions contained in
Government Order dated 03.02.2007 to be contrary to DCR
N-.2.4.17 which is an instance of exercise of statutory
powers under the MRTP Act. The said G.O. dated 03.02.2007
had excluded the entitlement to Transferable Development
Rights once an award had been made and possession of the
land had been delivered as in the present case.
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Page 5
4. We have heard Shri V.A. Mohta, learned senior
counsel and Shri Aniruddha P. Mayee, learned counsel
appearing for the appellants and Shri Vinod Bobde and Shri
Shekhar Naphade, learned senior counsels appearing on
behalf of the respondents.
5. Assailing the order of the High Court, it is contended
on behalf of the appellants that under Section 126 of the
MRTP Act grant of TDR against land acquired under the Land
Acquisition Act is not contemplated and grant of TDR is
permissible only when the land is acquired by agreement
and it is further agreed that in lieu of compensation, TDR will
be granted and accepted. It is argued that grant of TDR is a
matter of agreement between the acquiring authority and
the land owner and the authority cannot be directed to grant
TDR if it is not so willing asmuch as a land owner cannot be
compelled to accept TDR in the event he opts to accept
compensation for the land acquired. The concept of TDR
was brought in by an amendment to the MRTP Act in the
year 1993 whereas the award for acquisition of the land of
the respondent society was passed in the year 1987 and
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Page 6
possession thereof was taken over on 21.2.1987. It is
contended that the respondent society whose land was
acquired under the Land Acquisition Act is entitled to
compensation calculated on the market value of the land as
on the date of the Notification under Section 4 of the Land
Acquisition Act which was published in the year 1982. The
value of the benefit, if TDR is to be granted at the present
stage, would be grossly disproportionate. Pointing out the
provisions of the Development Control Regulations
governing grant of TDR, it is contended that DCR N-.2.4.1(A)
and 2.4.17 are required to be read harmoniously and not in
isolation as has been done by the High Court. Before DCR
N-.2.4.17 can be made applicable, the conditions spelt out
under DCR N-. 2.4.1(A) has to be satisfied, namely, that the
land should have been shown as reserved for a public
purpose in the development plan. It is pointed out that in
the present case it was not so done and the land was, in
fact, shown as an existing garden. Therefore, DCR
N-.2.4.1(A) is not applicable thereby ruling out the
application of DCR No.2.4.17. It is also pointed out that the
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Page 7
land was acquired under the provisions of the Land
Acquisition Act under a non-development plan proposal to
which acquisition the provisions of Section 126 of the MRTP
Act will have no application. In so far as the G.O. dated
03.02.2007 under Section 154 of the MRTP Act is concerned,
the appellants contend that the said G.O. dated 03.02.2007
is no way amends DCR No.2.4.17 as held by the High Court;
rather the said directions are merely clarificatory and were
issued due to large scale deviations that have taken place in
the matter of grant of TDR.
6. Opposing the aforesaid contentions advanced on
behalf of the appellants, Shri Vinod Bobde and Shri Shekhar
Naphade, learned senior counsels appearing on behalf of the
respondent - cooperative housing society in the two separate
appeals have submitted that the object of the amendment
made in the year 1993 (14.10.1993) introducing the concept
of TDR was to lessen the financial burden of the State facing
the prospect of making payment of huge compensation
money for acquisition of land in connection with the
Development Plan. Learned counsels have pointed out that
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Page 8
in the present case the land was eventually included in the
development plan prepared and approved under the MRTP
Act. The manner of inclusion in the development plan i.e. as
an existing garden or as reserved for a garden would not
make any difference to the claim of TDR. It is argued that,
though offered, the respondent had not accepted any
compensation and, in fact, had agitated for higher
compensation under Section 18 of the Land Acquisition Act.
While the matter was so pending the concept of TDR came
to be introduced in the Act and in the year 1997
(05.06.1997) the modified DCR N-2.4 was introduced. The
respondent society abandoned the reference made by it for
higher compensation and initiated proceedings challenging
the acquisition. After the said challenge was negatived, the
respondent society, in the year 2003, lodged a claim for
grant of TDR under DCR N-2.4.17 (ii) which though initially
was responded favourably was eventually rejected by
placing reliance on the Government Order dated 03.02.2007.
It is further contended that DCR N-.2.4.17 is a stand alone
provision and under clause (ii) of the said DCR the
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Page 9
respondent society is entitled to its claim of TDR under the
MRTP Act though the land had been acquired under Land
Acquisition Act. In this regard, it has been specifically
pointed out that possession of the land was taken from the
society in the year 1987 which is within 12 years prior to 30th
September, 1993 as contemplated in DCR N-2.4.17 (ii).
Admittedly, no compensation has been received. It is further
submitted that the Government Order dated 03.02.2007
purports to amend the DCR which cannot be so done without
following the procedure prescribed under Section 37 of the
MRTP Act. The fact that in similar circumstances TDR had
been granted to other land owners has also been pointed out
by the learned counsels appearing on behalf of the
respondent housing society.
7. In so far as the provisions of Section 126(1) (a) (b)
and (c) of the MRTP Act is concerned, Shri Vinod Bobde,
learned counsel appearing for the respondent society in C.A.
No.3008-3009 of 2010 has submitted that the availability of
TDR to cases of land acquired under the Land Acquisition Act
after invoking the provisions of Section 126(1) (c) of the
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Page 10
MRTP Act will not be open to be raised either by the State or
the Municipal Corporation once the DCR, particularly DCR N-
2.4.17 (ii), had been enacted and brought into force to
confer Transferrable Development Rights for land acquired
under the provisions of the aforesaid Section 126(1) (c) of
the Act by following the process laid down in the Land
Acquisition Act. Shri Bobde has pointed out that once
Regulations have been framed contemplating grant of TDR
to such land subjected to acquisition under Section 126 (1)
(c), the Government cannot turn around and refuse to be
bound by its own norms much less challenge the same. It is
further pointed out by Shri Bobde that any such plea on the
part of the State is not competent in law and the State
cannot seek a decision on the validity of its self professed
norms of governance. So long as the DCR remains its full
legal effect must be given effect to.
8. As the issues raised before us will have to be
answered on the basis of the true and correct purport and
effect of the relevant provisions of the MRTP Act; those of
the Development Control Regulation i.e. DCR N-2.4.1(A) and
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2.4.17; and the Government Order dated 03.02.2007, the
same may be extracted at the first instance.
Relevant provisions of the MRTP Act
“22. Contents of Development Plan -
A Development plan shall generally indicate
the manner in which the use of land in the area of
the Planning Authority shall be regulated, and also
indicate the manner in which the development of
land therein shall be carried out. In particular, it
shall provide so far as may be necessary for all or
any of the following matters, that is to say,-
(a)…………..
(b)………....
(c)………….
(d)……………
(e)……………
(f)……………..
(g)……………..
(h)……………..
(i)…………….
(j)………………
(k)……………….
(l)………………….
(m) - provisions for permission to be granted
for controlling and regulating the use and
development of land within the jurisdiction of
a local authority including imposition of fees,
charges and premium, at such rate as may
be fixed by the State Government or the
Planning Authority, from time to time, for
grant of an additional Floor Space Index or for
the special permissions or for the use of
discretionary powers under the relevant
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Page 12
Development Control Regulations, and also
for imposition of conditions and restrictions in
regard to the open space to be maintained
about buildings, the percentage of building
area for a plot, the location, number, size,
height, number of storeys and character of
buildings and density of population allowed in
a specified area, the use and purposes to
which buildings or specified areas of land
may or may not be appropriated, the subdivision
of plots the discontinuance of
objectionable users of land in any area in
reasonable periods, parking space and
loading and unloading space for any building
and the sizes of projections and
advertisement signs and boardings and other
matters as may be considered necessary for
carrying out the objects of this Act.”
“Section 126. Acquisition of land required for
public purposes specified in plans (1) When
after the publication of a draft Regional Plan, a
Development or any other plan or town planning
scheme, any land is required or reserved for any
of the public purposes specified in any plan or
scheme under this Act at any time the Planning
Authority, Development authority, or as the case
may be,/ any appropriate authority may, except as
otherwise provided in Section 113-A,/ acquire the
land –
(a) by an agreement by paying an amount
agreed to or,
(b) in lieu of any such amount, by granting the
land-owner or the leasee, subject, however, to the
lessee paying the lessor or depositing with the
Planning Authority, Development Authority or
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Page 13
Appropriate Authority, as the case may be, for
payment to the lessor, an amount equivalent to
the value of the lessor’s interest to be determined
by any of the said Authorities concerned on the
basis of the principles laid down in the Land
Acquisition Act, 1894, Floor Space Index (FSI) or
Transferable Development Rights (TDR) against
the area of land surrendered free of cost and free
from all encumbrances, and also further additional
Floor Space Index or Transferable Development
Rights against the development or construction of
the amenity on the surrendered land at this cost,
as the Final Development Control Regulations
prepared in this behalf provide, or
(c) by making an application to the State
Government for acquiring such land under the
Land Acquisition Act, 1894.
And the land (together with the amenity, if any, so
developed or constructed) so acquired by
agreement or by grant of Floor Space Index or
Additional Floor Space or Transferable
Development Rights under this Section or under
the Land Acquisition Act, 1894, as the case may
be, shall vest in the Planning Authority,
Development Authority, or as the case may be,
any Appellate Authority.”
Government Order dated 03.02.2007
“Maharashtra Regional & Town
Planning Act, 1966
Directive under Section 154
About TDR.
GOVERNMENT OF MAHARASHTGRA
URBAN DEVELOPMENT DEPARTMENT
MANTRALAYA, MUMBAI – 400 032.
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Page 14
DATED 3rd FEBRUARY, 2007.
ORDER
No. TPS/Sankirna-06/CR-527/06/UD-13:- Whereas
the provision of Transferable Development Rights
(hereinafter referred to as “the said TDR”) has been
incorporated in the sanctioned Development
Control Regulations (hereinafter referred to as “the
said DCR”) with a view to reduce the financial
burden of acquisition of lands reserved for public
purposes in the Development Plan and for early
possession of these lands:
And whereas, sanctioned Development Control
Regulations of some Municipal Corporations contain
the provision of rules regarding the said TDR;
And whereas, sanctioned the said DCR of some
Municipal Corporations also have provision to grant
the said TDR for the lands acquired either under
Maharashtra Regional& Town Planning Act, 1966
(hereinafter referred to as “the said Act”), Bombay
Provincial Municipal Corporation Act, Private
Negotiation or any other Act and possession of
which has already been delivered to the Municipal
Corporation;
And whereas, it has come to the notice of
Government that the rule regarding the grant of
TDR such acquired lands have been misinterpreted
and misused;
And whereas, once the possession is delivered
after acquisition the rights of the owner are
transferred to the Planning Authority and the
application by the land owner demanding TDR
thereafter can be said to be made without having
any rights in the land;
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Page 15
After considering the facts and circumstances
referred to above, in exercise of the powers
conferred under Section 154 of the said Act,
Government is pleased to issue directives to all the
Municipal Corporations as follows:
DIRECTIONS
All the Municipal Corporations which have the
provisions regarding grant of Transferable
Development Rights (TDR) for the lands which are
acquired under either the MRTP Act, BPMC Act,
Private Negotiation or any other Act shall initiate
modification proposal after following procedure laid
down under Section 37 of the said Act so as to
replace the provisions of this regard by new rules as
follows:
NEW RULES:
1) Transferable Development Rights (TDR) shall
not be permissible once an award has been
declared under the acquisition process and or the
possession has already been delivered to the
Municipal Corporation under any Act.
2) Municipal Corporation shall punish a notice
inviting suggestions and or objections regarding the
modification within sixty days from the date of issue
of this order.
3) After completing the procedure laid down
under Section 37(1) of the said Act Municipal
Corporation shall submit the said modification
proposal to the Government for final sanction.
4) Pending the approval to the aforesaid
modification the new rule mentioned hereinabove
shall come into force with effect from the date of
issue of this notification.
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Page 16
By order and in the name of
Governor of Maharashtra.
Sd/-
(Nandkishor Patil)
Under Secretary to Government”
Development Control Regulation
“N.2.4.1 (A). The owner (or lessee) of a plot of
land which is reserved for a public purpose, or road
construction or road widening in the development
plan and for additional amenities deemed to be
reservations provided in accordance with these
Regulations, excepting in the case of an existing or
retention user or to any required compulsory or
recreational open space, shall be eligible for the
word of transferable Development Rights (TDRs) in
the form of Floor Space Index (FSI) to the extent
and on the condition set out below. Such award will
entitle the owner of the land, to FSI in the form of a
Development Right Certificate (DRC) which be
(sic. he) may use for himself or transfer to any other
person.
N-2.4.17. Grant of TDR in cases where lands are
under acquisition:
(i) Where Land Acquisition has been declared but
request was made for TDR to the Special Land
Acquisition Officer after 30th September 1993 i.e.
the date of publication of these draft Development
Control Regulation containing TDR concept.
(ii) Possession of the land has been delivered
without having received part or full compensation
under either the Maharashtra and Town Planning
Act, Bombay Provincial Municipal Corporation Act,
private negotiation or under any Act for the time
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being in force within 12 years prior to 30th
September 1993.”
9. Though there is some controversy on the basic facts,
there is also unanimity to show that the acquisition of the
land belonging to the respondent society was initiated by
notification dated 28.01.1982 issued under Section 4 of the
Land Acquisition Act, 1894. It is also clear that on
completion of enquiry under Section 5-A of the Land
Acquisition Act, declaration under Section 6 was published
on 2.1.1985. Some further facts on which there is no dispute
and therefore would require to be taken note of, are that the
draft revised development plan which was published on
18.9.1982 showed the land as an existing garden and in the
final development plan which was sanctioned on 5.1.1987,
the land was again shown as “existing garden as per
approved layout”. The respondent-writ petitioner, however,
contends that the description of the land as an existing
garden is wrong and what should have been mentioned in
the development plan is that the land was proposed for a
garden as possession of the same was still with the
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Page 18
respondent-society on the date of publication of the final
development plan i.e. 5.1.1987. Possession of the land, as
noticed, was taken over on 18.2.1987 whereas the award
under the Land Acquisition Act was made on 22.01.1987.
10. Having considered the matter we are of the view that it
will not be necessary for us to consider the aforesaid
perspective highlighted by the respondent society as the
controversy over the entitlement to TDR under the relevant
DCR is capable of being resolved on a wholly different basis
to which aspect of the matter we may now turn.
11. The concept of TDR was introduced for the first time in
the MRTP Act in the year 1993 by an amendment of Section
126(1)(a), (b) and (c) of the MRTP Act. The modalities for
grant of TDR were brought into force by the amended
Development Control Regulation (for short ‘DCR’) N-2.4 with
effect from 5.6.1997. In its simplest form, the concept of
TDR involves the surrender of land reserved for various
public purposes in the development plan free of cost and in
exchange thereof grant of TDR entitling the holder thereof to
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Page 19
construct a built up area equivalent to the permissible FSI of
the land handed over by him on one or more plots in the
zone specified. Such rights are transferable. The object
behind introduction of TDR, as admitted by the Pune
Municipal Corporation in its various publications, was to
meet the situation faced by the Corporation on being called
upon to make payment of over Rs.1500 crores to take over
different sites measuring about 600 hectares which had
been reserved for different public purposes in the
development plan.
12. Strictly construed it is the provisions of the Section 126
(1)(a) read with (b) of the MRTP Act, extracted earlier, which
contemplate grant of TDR and that too only against land
acquired by agreement as distinguished from land which is
acquired under the Land Acquisition Act in exercise of
powers under Section 126(1)(c). The latter kind of acquisition
i.e. under the Land Acquisition Act by invoking Section
126(1)(c) of the MRTP Act however stands on a footing that
is different and distinguishable from the normal process of
acquisition under the same Act i.e. the Land Acquisition Act.
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Page 20
This is because in an acquisition under the Land Acquisition
Act made in exercise of power under section 126(1)(c) of the
MRTP Act, the provisions of Section 4 and Section 5A of the
L.A. Act are dispensed with and straightway a notification
under Section 6 is to be issued. The market value of the
land, though sought to be acquired under the Land
Acquisition Act, is pegged to the date of publication of the
interim or draft development plan, as may be, and not to the
date of publication of the notification under Section 4 of the
Land Acquisition Act. The above is a subtle but vital
difference between the ordinary and ‘normal’ process of
acquisition under the Land Acquisition Act and the process of
acquisition under the same Act but in exercise of powers
under Section 126(1)(c) of the MRTP Act that needs to be
kept in mind.
13. DCR N-2.4.1(A) gives effect to the provisions of Section
126(1)(a) and (b) brought in by the amendment to the MRTP
Act in 1993. It entitles the owner or a lessee of a plot of
land, which is reserved for a public purpose in the
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Page 21
development plan, to the award of TDR in lieu of
compensation upon surrender of the land free of cost. If,
DCR No.N-2.4 had not contemplated any further situations
for grant of TDR the argument advanced on behalf of the
appellants would have merited serious consideration.
However, DCR N-2.4.17, extracted above, contemplates two
other situations for grant of TDR. Under DCR N-2.4.17(ii) in
situations where possession of land had been delivered
without receipt of part or full compensation payable under
the MRTP Act, Bombay Provincial Municipal Corporation Act,
private negotiations or under any Act and such event had
occurred within 12 years prior to 30.9.1993 (date of
publication of the draft DCR containing the TDR concept)
claims for grant of TDR are required to be entertained. DCR
N-2.4.17 extends the frontiers outlined under Section 126(1)
(a) and (c) and makes the grant of TDR applicable to an
extended class of cases wherein acquisition of land is made
not only under the MRTP Act but also under other
enactments including the L.A. Act. Such an extension
appears to be in consonance with the object behind the
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Page 22
introduction of the concept of TDR by the amendment of the
MRTP Act of 1993. Having regard to the clear language
contained in DCR N-2.4.17(ii) and the object sought to be
achieved by the introduction of TDR, we do not see as to
how grant of TDR can be confined only to cases of lands
which have been reserved in the development plan and not
to lands acquired under the Land Acquisition Act which land
eventually becomes a part of the finally approved and
sanctioned development plan. The above would also lead to
the conclusion that DCR N-2.4.17 is capable of operating
independently and is not contingent on the existence of the
conditions mentioned in DRC N-2.4.1(A).
14. The matter needs to be viewed from another
perspective. The difference between acquisition under the
L.A. Act by resort to the provisions of Section 126(1)(c) of
the MRTP Act and acquisition dehors the said provision of the
MRTP Act has already been noted. If under DCR N-2.4.17,
TDR can be granted in cases of acquisition under the MRTP
Act obviously acquisition under the LA Act upon invocation of
Section 126(1)(c) would be included. In such a situation,
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Page 23
reference to any other Act in DCR N-2.4.17 would include the
L.A. Act so as to bring land covered by the normal process of
acquisitions under the L.A. Act within the fold of DCR N-
2.4.17. The acquisition of the land belonging to the
respondent society would, therefore, be clearly covered by
the provisions of DCR N-2.4.17.
15. “Making of DCR or amendments thereof are legislative
functions.”1 The Government Order dated 3.2.2007, though
claimed to be clarificatory by the appellants, really, seeks to
prohibit the grant of DCR under DCR N-2.4.17 so far as lands
in respect of which Award under the Land Acquisition Act
had been passed or possession of which has been taken
over. This is contrary to the clear intent behind DCR N-
2.4.17. The Government Order itself acknowledges the
necessity of following the procedure prescribed by Section
37 of the MRTP Act before the aforesaid modification could
become effective. Yet, surprisingly the Government Order
goes on to state that, “Pending approval of the aforesaid
modification the new rule mentioned hereinabove shall come
1 Pune Municipal Corporation and Anr. Vs. Promoters and Builders Association and Anr. [(2004) 10 SCC
796]
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Page 24
into force with effect from the date of issue of this
notification”. The Government Order in question, having
been issued under Section 154 of the MRTP Act, therefore,
cannot override the DCR N-2.4.17 as the directions under
Section 154 of the MRTP Act would be in the nature of
administrative instructions (Laxminarayan R. Bhattad
and Others Vs. State of Maharashtra and Another2).
Admittedly, at the relevant point of time, the requisite
process under Section 37 of the MRTP Act had not been
completed.
16. Underlying the arguments advanced on behalf of the
appellants is a fundamental issue that would require a brief
mention. The present case discloses a somewhat disturbing
course of action adopted by the State in seeking to disown
and challenge its own professed standards laid down in the
form of a DCR by tangentially contending the same to be
incompetent in law. Such a course of action by the State
seeking to depart from its self-professed norms is neither
permissible nor would the Court require to consider the
2 (2003) 5 SCC 413
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Page 25
same. The DCR governing the grant of TDR though may
have gone beyond what is contemplated under the MRTP
Act, the State and its authorities cannot be permitted to
request the Court to collaterally adjudge the validity of the
said norms laid down by the State itself. It is for the State to
effect necessary corrections as deemed proper and not
search for an escape valve through a judicial verdict. Such a
course of action is jurisprudentially impermissible. So long
as the DCR holds the field all executive actions must be
within the four corners thereof. We can usefully remind
ourselves of the observations of Justice Frankfurter in
Viteralli Vs. Seaton3 approved in R.D. Shetty Vs.
International Airport Authority4 :
“An executive agency must be rigorously held to
the standards by which it professes its action to be
judged. ..Accordingly, if dismissal from
employment is based on a defined procedure,
even though generous beyond the requirements
that bind the agency, that procedure must be
scrupulously observed…This judicially evolved rule
of administrative law is now firmly established
and, if I may add, rightly so. He that takes the
procedural sword shall perish with the sword.”
3 3.L Ed.2d. 1012
4 (1979) 3 SCC 489
25
Page 26
17. For the above-stated reasons, the conclusion is obvious.
The rejection of the claim of the respondent Society to TDR
under the MRTP Act read with DCR N-2.4.17 is seriously
flawed. We, therefore, set aside the same; affirm the order
dated 15.9.2009 of the Bombay High Court in the writ
petition filed by the respondent Society and consequently
dismiss the appeals filed by the Pune Municipal Corporation
and the State of Maharashtra.
……………………………J.
[RANJAN GOGOI]
..………………..………..J.
[M.Y.EQBAL]
New Delhi;
October 09, 2014.
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