HC asks Thane civic body to grant additional TDR of 6,913sqm to developer

In a major relief for a Thane developer, the Bombay high court (HC) last week directed the Thane Municipal Corporation (TMC) to grant the additional transferable

In a major relief for a Thane developer, the Bombay high court (HC) last week directed the Thane Municipal Corporation (TMC) to grant the additional transferable developer rights (TDR) of 6,913 square metres (sqm) in lieu of construction of two development plan (DP) roads for the use of citizens.

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The developer, M/s Siddhi Real Estate Developers, moved HC in 2015, after the civic body refused to grant the TDR.

The petitioner developed a residential project, Highland Residency, at Dhokali in Thane. As two DP roads – one 25-metres-wide and the other 15-metres-wide – passed through the project spread over 85,778 square metres, TMC in 2001 sanctioned the plans for the project on the condition that the developer shall construct the roads and handover them over to the civic body.

Later, TMC decided to construct the 25-metre-wide road through its public works department, and asked the developer to deposit ₹31.67 lakh for the road’s construction, which the developer paid between 2005 and 2007.

The developer later constructed the 15-metre-wide road too and handed over both the roads to TMC and the civic body’s name was registered in the record of rights as owner of the area of the roads, 6,913 sqm.

In 2014, the TMC, however, refused to compensate the developer by granting him TDR in lieu of the area consumed for the DP roads. The civic body maintained that that there was no provision in the Development Control Regulations (DCR), 1994, to grant TDR for the consideration paid towards the construction of the first DP Road. It claimed that the roads were approach roads for the project, and the developer was bound to construct it for the benefit of flat purchasers.

However, a HC bench of justice SJ Kathawalla and justice BP Colabawalla found both the reasons legally unsustainable. The bench said that merely because TMC constructed the first DP road on its own, it would not disentitle the developer from claiming TDR for its construction as a public amenity.

The bench said this is because section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966, contemplates that when an owner also develops a public amenity at his cost, he would be entitled to additional floor space index or TDR.

“In the facts of the present case, even though the construction of the first DP road was done by the public works department of TMC, the same was admittedly done entirely at the cost of the petitioner.”

The bench said the roads were neither access roads nor an alternative access for the residential project, but were roads reserved in the DP for Thane city and despite passing through the residential project, are used by the public at large.

The bench said even if one of the roads was assumed to be an alternative means of access, as envisaged in Regulation 47 of the development control regulations for Thane city, it does not contemplate that the same would be free of cost or without any compensation to the land holder.