Anoop V. Mohta, J.:— Heard finally by consent of parties.

2. The Petitioners, in view of Supreme judgment in Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra, 2009 (6) Mh. L.J (S.C) 354 : (2009) 5 SCC 24, dated 6-2-2009 have filed the present Petition on 18 February, 2011 and prayed as under:

“(a) that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the 1st and 2nd Respondents, their servants, agents and officers to forthwith issue to the Petitioners additional DRCs under Appendix VII (6) to the extent of 19, 463.40 sq. mts for the balance 75% of the area of the amenity/Development Plan Road constructed & taken over by the 1st Respondents as per their application dated 29th June, 2009 (Ex. G hereto).”

3. There is no serious dispute with regard to the following facts:

Petitioner No. 1 (Novartis India Ltd.) was the owner of large lands bearing CTS No. 95/4A of Village Dindoshi and CTS No. 590A/D of Village Pahadi (“the said land”) in Goregaon, Mumbai. Petitioner No. 2 (Oberoi Realty Ltd.) has entered into a Development Agreement dated 29 December, 1999 with Novartis India Ltd. for development of the said lands, whereunder it is entitled to develop the same & is also entitled to all TDR. In the Development Plan prepared under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) part of the said land was reserved for a Public amenity i.e a 60 foot and 44 foot Development Plan Road. Another portion of the land was reserved for widening of the existing Development Plan Road.

4. On 16-2-1996, 1st Respondent/Municipal Corporation of Greater Mumbai (MCGM) had approved a layout/amalgamation/sub-division for the development of the said land under No. CE/102.DP/WS/LOP. One of the conditions stipulated therein was that the Development Plan Road should be constructed as per the MCGM specifications and should be handed over and transferred to MCGM after the construction.

5. During 2001–2002, Petitioner No. 2 handed over the DP Roads of aggregate area of 25, 915.20 sq. mts., duly constructed/developed to the MCGM & the same was duly accepted by the MCGM. In 2001, Petitioner No. 2 applied to the MCGM for Development Right Certificate/TDR under Regulation 34 read with Appendix VII of the DCR, which provided for the grant of TDR for the area handed over & additional TDR equivalent to the area of the amenity constructed/developed. On 5-1-2002, the MCGM required Petitioner No. 2 to submit an undertaking to the effect that Petitioner No. 2 would not claim additional FSI/TDR for the constructed amenities, as the construction of the roads was a condition of the Lay Out Approval. On 1-8-2002 while giving an undertaking as required, Petitioner No. 2 expressly reserved its right to claim additional FSI/TDR that may be made available in future under law, Rules, Regulations or Policies of the Government/Municipal Corporation of Gr. Mumbai or any other authority. In August, 2002, Petitioner No. 2 was thereafter granted three DRCs in August, 2002 for an area equivalent to 25, 915.20 sq. mts surrendered (i.e without the additional amenity TDR).

6. On 5-4-2003, contrary to the statutory DCR, MCGM by a policy circular decided to grant only 25% additional TDR for Development Plan Roads constructed/developed. Petitioners requested MCGM for additional TDR at least of 25% which was refused. The Petitioners filed an Appeal under section 47 of the mrtp act, for additional TDR of 25% and pointed out that Writ Petitions were pending in this Court regarding the right to receive 100% of the additional TDR. Petitioners expressly reserved their right to claim balance 75% additional TDR. On 25-7-2003, the Appellate Authority (State Government) allowed the Appeal of the Petitioner and directed MCGM to grant additional TDR equivalent to 25% of the area of the constructed DP Roads. On 3-8-2004 pursuant to the Order passed in the Appeal, MCGM granted additional TDR of 25% i.e 6478 sq. mtrs.

7. On 29-6-2009 pursuant to the judgment of the Supreme Court dated 6 February, 2009 in Godrej and Boyce Manufacturing Company Limited (supra), the Petitioners requested Respondent No. 1 for the balance 75% additional/amenity TDR of 19, 436.40 sq. mtrs. MCGM failed to respond.

8. From documents subsequently received under the RTI Act, Petitioners learnt that the legal Department of MCGM has opined that though Petitioner No. 2 is entitled to the balance 75% additional TDR, the Respondents had purported to decide on 22-12-2009 not to give additional TDR for amenities constructed/developed “even though the Applications if any are received in future, based on the Supreme Court judgment”.

9. By the judgment in Godrej and Boyce Manufacturing Company Limited (supra), the Apex Court, after considering the power, purpose and object of the respective provisions including MRTP Act and the Development Control Regulations, has set aside the Circulars dated 9-4-1996, 5-4-2003 and 5-5-2004 impugned therein, by observing as follows:

“65 Mr. Shishodia next submitted that the measure of 15% (later raised to 25%) of the area of the road constructed for grant of TDR by the impugned Circulars of 9-4-1996, 5-4-2003 and 5-5-2004 was decided in meetings in which Mr. Nayan M. Shah, constituted attorney of the appellants, was also present as the representative of the industry. Hence, it was no longer open to the appellants and the petitioners to question those circulars. We are once again unable to accept the submission. Mr. Shah might have been present in the meeting and he might or might not have voted for the graded scheme for grant of additional TDR but that would not authorise the municipal authorities to override or supersede the statutory provisions by issuing circulars in the nature of executive instructions.

66 In light of the discussions made above we find that the stand of municipal authorities is contrary to the law as it stands today and the view taken by High Court is unsustainable. The judgment and order dated 18-10-2005 passed by the High Court of Bomba in WP (C) No. 323 of 2000 and other analogous oases is accordingly set aside and the writ petitions are allowed.”

This itself means the Circulars restricting the claim for grant of Transferable Development Rights (TDR) itself are not in existence. The effect is that those were not in existence even on the respective dates also. Therefore, the person like the Petitioners, as are entitled for the 100% TDR as per the provisions of law, as restricted to 25% in view of those Circulars, cannot be deprived of their balance claim/compensation.

10. The submission of learned senior Counsel appearing for the Respondents, is that in the present facts and circumstances as Petitioners’ prayers (a), (c), (d) and (e) of Memo of Appeal were not granted and as the Appellate order attained finality for want of further challenge by the Petitioners, therefore, there is no question to grant balance 75% of TDR by reagitating the grievance, is unacceptable. This is for the reason that the basis for restrictions, i.e the Circulars, are not in existence. The Petitioners have reserved their right throughout, apart from their representation, even in the Memo of Appeal. If the Corporation's Circulars are bad in law, the Petitioners cannot be deprived of their entitlement. We are inclined to observe that as the executive power of Respondent/Corporation, are taken away and the Circulars are quashed and set aside, what remains is the legal entitlement of the Petitioner to claim compensation and/or amenities and/or benefits as available i.e the balance 75% additional amenities TDR of 19. 436.40 sq. mtrs as prayed. The submission, therefore, that the Petitioners, in the present facts and circumstances are not entitled for the benefits as prayed, is unacceptable and, therefore, rejected.

11. The aspect of delay/laches, in such matter, cannot be the reason to deny the legal entitlement specially after the judgment of the Supreme Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Writ Petition No. 451 of 2010, Natvar Parikh & Co. Pvt. Ltd. v. State of Maharashtra., decided on 22 April, 2014. In our view, the cause of action is continuing specifically when the Petitioners themselves throughout resisted the action and reserved their right to claim their balance entitlement. This Court while dealing with such claim recently in Natvar Parikh & Co. Pvt. Ltd. (supra) has held as under:

“7. ……The rights of the Petitioner as crystallized on the basis of above admitted position on record and now even confirmed by the Supreme Court Judgment Godrej (supra), just cannot be taken away, though claimed since long. The cause of action in our view is still continuing. There is no question of any delay and/or laches as contended. We are inclined to accept the submission made by the senior advocate appearing for the Petitioner based upon the Supreme Court in the case of Union of India v. I.T.C Limited, 1993 Supp (4) SCC 326 : AIR 1993 SC 2135 that the approach of a person/party soon immediately and/or after coming to know about the judgment of the Supreme Court cannot be stated to be guilty of any laches to claim/reliefs so prayed and/or is barred by the limitation in the present case as recorded above. After the Supreme Court judgment in case of Godrej (supra) on 6-2-2009, the Petitioner vide its letter dated 6-7-2009 requested the Respondents to grant the TDR/DRC in question. The reminder was sent on 11-9-2009. The petition, therefore, so filed on 10 February, 2010, as the Respondents did not grant reliefs, in no way can be stated to be beyond limitation and/or suffers from any laches or delay. 10. The Respondent-Corporation, in view of above, is under obligation to grant the benefits/reliefs as prayed having once factually completed requisite formalities by the Petitioner for the same. In our view, the issues in the present case, therefore, stand concluded in favour of the Petitioner as reiterated even by the judgment (supra) which further followed and approved in Municipal Corporation of Greater Bombay v. Yeshwant Jagannath Vaity., (2011) 11 SCC 88 : AIR 2011 SC 1916, “for other amenity” also. Therefore the Petitioner is entitled for the reliefs as prayed.”

And accordingly granted additional TDR for the balance 75% area forthwith.

The entitlement so crystallised by the Supreme Court and by this Court cannot be denied to the Petitioners. The ultra vires act and/or such Circulars once declared illegal, its effect goes from the date of Circulars itself. The Respondents are now bound by it. The Apex Court has rendered all these circulars ineffective from its inception itself. There is no rider or condition added while declaring it illegal. The defence of Corporation not to grant benefit itself is contrary to settled law.

12. In Writ Petition No. 4172/2010, Shrikant H. Soni v. Asst. Director, Town Planning Authority for Nashik Municipal Corporation and Writ Petition No. 4168 of 2010, Sukha Trymbak Gamane v. Asst. Director, Town Planning Authority for Nashik Municipal Corporation, the same reliefs have been granted by this Court.

13. The submission with regard to the pendency of the proposal for modification to DCR 34 under section 37 of mrtp act initiated by State Government is also not acceptable in view of above judgments and decisions of this Court. Therefore, taking overall view of the matter and considering the legal position, we are inclined to observe that the present writ petition is maintainable for such reliefs. Therefore, the following order:

(i) The writ petition is allowed and rule is made absolute in terms of prayer (a).

(ii) No costs.

Petition allowed.