HC upholds validity of Maha notification amending TDR policy

The Bombay High Court Tuesday upheld as legal and valid a 2016 notification of the Maharashtra government that amended the Transferable Development Rights (TDR) policy for the Greater Mumbai region.

A bench of Justices A S Oka and R I Chagla upheld the notification dated November 16, 2016 that grants additional construction rights and Floor Space Index (FSI) benefits to those developers, who surrender their land to make way for roads marked in the city's Development Plan (DP).

While the Maharashtra government had earlier granted a fixed percentage of FSI and TDR benefits, the 2016 notification granted such benefits based on the ratio between the land surrendered and the width of the proposed road on such land.

The bench, however, ruled that the benefits of the notification could not be granted retrospectively, i.e. those builders who gave up their land for DP roads before November 2016 couldn't stake claim to benefits under the new rule.

It, however, also ruled that such developers whose land was marked for acquisition before the amendment, but the land was acquired, or surrendered after November 2016, will also be eligible for the amended benefits.

"We hold that the notification dated 16th November 2016 is legal and valid. However, the said notification will not have retrospective or retroactive application to a land reserved under the development plan, which is surrendered and amenity is developed on the said land by the owner or lessee thereof at his own cost prior to 16th November 2016," it said.

The bench was hearing a bunch of petitions filed by private developers between 2016 and 2017.

While the bench dismissed such petitions that sought retrospective benefits, it directed the Brihanmumbai Municipal Corporation (BMC) and Mumbai Metropolitan Region Development Authority (MMRDA) to consider the cases of those petitioners, who had surrendered their lands for DP roads post November 2016, and were yet to receive the TDR and FSI benefits as per the amended rule.