Follow land acquisition process to acquire Church land in Borivali: HC to BMC

The court said that section 126 of the Maharashtra Regional and Town Planning (MRTP) Act does not permit the BMC “to foist TDR/FSI on the petitioner in the absence of an agreement to this effect and avoid following the land acquisition process” mandated under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

MUMBAI: Civic bodies cannot force landowners to accept compensation in the form of TDR (transferrable development rights) when their land parcels are reserved for public purposes, the Bombay high court said on Friday while restraining the Brihanmumbai Municipal Corporation (BMC) from taking over part of a church land in Borivali for developing a public garden without adhering to the land acquisition process.

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“The respondents cannot contend that the petitioner needs to only accept TDR and/or (the petitioner) cannot claim monetary compensation,” said the division bench of justices GS Kulkarni and Arun Pednekar while allowing a petition filed by Our Lady of Immaculate Conception Church.

The court said that section 126 of the Maharashtra Regional and Town Planning (MRTP) Act does not permit the BMC “to foist TDR/FSI on the petitioner in the absence of an agreement to this effect and avoid following the land acquisition process” mandated under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The church owns a 4,732-sq-metre land parcel near Mandapeshwar caves, of which 1,309-sq-metre is reserved for a public garden/ park. Accordingly, the office of BMC’s chief engineer (development plan) had requested the church to handover the land to the executive engineer for developing a garden/ park and offered compensation in the form of TDR.

On February 9, 2024, the church replied to the chief engineer’s office, requesting the civic body to undertake land acquisition process for acquiring the land under reservation and pay monetary compensation according to prevailing laws, stating that the church had no use of TDR, being a charitable body set up for certain limited purposes.

On February 21, 2024, the chief engineer’s office rejected the request and reiterated that the civic body was ready to take possession of the reserved plot and compensation would be paid only in terms of TDR. The rejection prompted the church to approach the high court.

BMC responded to the petition, claiming that grant of TDR/ FSI in lieu of monetary compensation is permissible under the MRTP Act, 1966 and the petitioner cannot insist on monetary compensation in terms of the 2013 Act.

The high court on Friday allowed the petition and rejected the civic body’s contention. The bench said a bare reading of section 126 of the MRTP Act would indicate that land reserved for public purpose can either be acquired by an agreement by paying an amount or in lieu of such amount, the TDR or FSI can be granted to the claimant.

However, the bench said, TDR or FSI can only be granted in lieu of the amount agreed. “As such, it is necessary that for TDR or FSI to be granted to the claimant, there has to be basic agreement between the parties. The TDR/FSI can only be granted in lieu of the amount agreed,” the bench said, adding that in absence of an agreement between the parties, the acquiring body cannot insist on paying compensation in terms of TDR/ FSI.