PUNE MUNICIPAL CORPORATION & ANR.versusKAUSARBAG COOP. HOUSING SOCIETY LTD. & ANR.

                     [2014] 10 S.C.R. 843


        PUNE MUNICIPAL CORPORATION & ANR.                             A
                                v.
 KAUSARBAG COOP. HOUSING SOCIETY LTD. & ANR.
     (Civil Appeal Nos. 3008-3009 of 2010 ETC.)
                     OCTOBER 09, 2014
                                                                      B
         [RANJAN GOGOi AND M.Y.EQBAL, JJ.]

    Maharashtra Regional and Town Planning Act, 1966:

     Transferable Development Rights (TDR) under                      c
Development Control Regulations (DCR) N-24 - Land-shown
by Housing Society as 'reserved for garden' in lay out plan
submitted by it - Land acquired under Land Acquisition Act
- Municipal Corporation resisting the claim stating that the
land was not reserved for public purpose - Grant of TDR
                                                                      0
cannot be .confined only to lands which have been reserved
in the development plan and not to lands acquired under
Land Acquisition Act which land eventually becomes a part
of the finally approved and sanctioned development plan -
Rejection of the claim of respondent Society to TDR under
MRTP Act read with DCR N-2.4. 17 is seriously flawed - The            E
same is, therefore, set aside - Land Acquisition Act, 1894:

     Administrative Law:

       Subordinate Legislation - Development Control                  F
Regulations or amendment thereof are legislative functions
- G. 0. dated 3. 2. 2007 issued u/s 154 is contrary to clear intent
behind DCR N-2.4. 17 and, as such, cannot override DCR N-
2. 4. 17 - Maharashtra Regional and Town Planning Act, 1966
- s.154.
                                                                      G
    The instant appeals arose out of the jµdgment and
order of the High Court allowing the claim of the
respondent writ-petitioner Society to Transferable
                               843                                    H
        844      SUPREME COURT REPORTS            [2014] 10 S.C.R.

    A Development Rights (TOR) under Development Control
      Regulations, i.e. DCRN-24 in respect of the subject land.

              Dismissing the appeals, the Court

           HELD: 1.1. The concept of TOR involves the
    B surrender of land reserved for various public purposes
      in the development plan free of cost and in exchange
      thereof grant of TOR 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
    C the zone specified. [para 11] [859-8-C]

           1.2. OCR N-2.4.1 (A) gives effect to the provisions of
      s.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
    0
      development plan, to the award of TOR in lieu of
      compensation upon surrender of the land free of cost.
      OCR N-2.4.17 contemplates two other situations for grant
      of TOR. Under DCR N-2.4.17(ii) in situations where
      possession of land had been delivered without receipt of
    E 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 OCR containing the TOR concept)
    F claims for grant of TOR are required to be entertained.
      OCR N-2.4.17 extends the frontiers outlined u/s 126(1)(a)
      and (c) and makes the grant of TOR applicable to an
      extended class of cases wherein acquisition of land is
      made not only under the MRTP Act but also under other
    G enactments including the L.A. Act. Such an extension
      appears to be in consonance with the object behind the
      introduction of the concept of TOR by the amendment of
      the MRTP Act of 1993. [para 13] [860-C-G]

              1.3. Having regard to the clear language contained
    H
  PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.               845
           HOUSING SOCIETY. LTD.
in OCR N-2.4.17(ii) and the object sought to be achieved       A
by the introduction of TOR, grant of TOR cannot 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          B
sanctioned development plan. The above would also lead
to the conclusion that OCR N-2.4.17 is capable of
operating independently and is not contingent on the
existence of the conditions mentioned in ORC N-2.4.1 (A).
[para 13] [860-G, H]                                           c
     1.4. If under OCR N-2.4.17, TOR. can be granted in
cases of acquisition under the MRTP Act obviously
acquisition under the LA Act upon invocation of
s.126(1 )(c) would be included. In such a situation,
reference to any other Act in OCR N-2.4.17 would include       D
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 OCR N-2.4.17. The acquisition of the land belonging to
the respondent society would, therefore, be clearly
covered by the provisions of OCR N-2.4.17. [para 14]           E
[861-C-E]

     1.5. Making of OCR or amendments thereof are
legislative functions. The Government Order dated
3.2.2007, seeks to prohibit the grant of OCR under OCR N-      F
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 OCR N-2.4.17. The Government Order in
question, having been issued u/s 154 of the MRTP Act,          G
therefore, cannot override the OCR N-2.4.17 as the
directions u/s 154 of the MRTP Act would be in the nature
of administrative instructions. [para 15] [861-E-F; 862-A-B]

     Pune Municipal Corporation and Anr. Vs. Promoters and
Builders Association and Anr. 2004 (2) Suppl. SCR 207 =        H
                     I      ,
    846       SUPREME COURT REPORTS                [2014) 10 S.C.R.


A (2004) 10 SCC 796; Laxminarayan R. Bhattad and Others
  vs. State of Maharashtra and Another 2003 (3) SCR 409 =
  (2003) 5 sec 413 - relied on

       1.6. It is for the State to effect necessary corrections
8 as deemed proper and not search for an escape valve
  through a judicial verdict. Such a course of action is
  jurisprudentially impermissible. [para 16] [862-F]

         R. D. She tty Vs. International Airport Authority 1979
                   =
    (3) SCR 1014 (1979) 3 sec 489 - relied on.
c
          Vitera/Ii Vs. Seaton 3.L Ed.2d. 1012 - relied on.

       1. 7. The rejection of the claim of the respondent
  Society to TOR under the MRTP Act read with OCR N-
D 2.4.17 is seriously flawed. The same is, therefore, set
  aside. The order dated 15.9.2009 of the Bombay High
  Court in the writ petition filed by the respondent Society
  is affirmed. [para 17] [860-C-O]
                         Case Law Reference:
E
          2004 (2) Suppl. SCR 207      relied on         para 15
          2003 (3) SCR 409             relied on         para 15
          1979 (3) SCR 1014            relied on         para 16
F         3. L Ed.2d. 1012             relied on         para 16
        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
    3008-3009 of 2010.

      From the Judgment & Order dated 15.09.2009 of the High
G Court of Judicature at Bombay in Writ Petition No. 7006 of
  2006 and Judgment and final order dated 18.12.2009 in
  Review Petition No. 137 of 2009 in Writ Petition No. 7006 of
  2006.

H
 PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                     847
          HOUSING SOCIETY LTD.
                             WITH                                    A

C.A. No. 4580 of 2010.

     V.A. Mohta, Vinod Bobde, Shekhar Naphade, Makarand
D. Adkar, Braj K. Mishra, Vijay Kumar, Nelakanta Nayak,
Devansh Mohta, Vishwajit Singh, Aniruddha P. Mayee,                  B
Charudatta Mahindrakar, Nitin Lonkar, Sonia S. Chillarge, Asha
Gopalan Nair, Rohaan Cama, Subhash Jadhav, Kamna Sagar,
Venkita Subramoniam T.R., Vikas Mehta for the appearing
parties.
                                                                     c
    The Judgment of the Court was delivered by
         .
     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 (TOR)         0
under the relevant Development Control Regulations (OCR) i.e.
N-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
                                                                     E
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 TOR has no
legal basis. There are additional grounds for the rejection,
                                                                     F
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         G
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      H
    848      SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A in the lay out plan submitted by it to the Pune 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
B 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
C 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 developmen't plan is
  of no consequence to the issue arising i.e. entitlement to TOR,
  the State contends that the land was acquired under a non-
D development 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
E   "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 OCR i.e. N-2.4.17(ii), the High
    Court took the view that no such distinction is disclosed therein
F   and going by the language of the OCR the respondent Society
    was entitled to TOR 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
G   Municipal Corporation as well as those of the State of
    Maharashtra had unequivocally indicated the entitlement of the
    respondent-writ 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 OCR N-
H   .2.4.17 which is an instance of exercise of statutory powers
  PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                   849
   HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]
under the MRTP Act. The said G.O. dated 03.02.2007 had            A
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.

    4. We have heard Shri V.A. Mohta, learned senior counsel      B
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 C
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 TOR is
permissible only when the land is acquired by agreement and
it is further agreed that in lieu of compensation, TOR will be D
granted and accepted. It is argued that grant of TOR is a matter
of agreement between the acquiring authority and the land
owner and the authority cannot be directed to grant TOR if it is
not so willing asmuch as a land owner cannot be compelled to
accept TOR in the event he opts to accept compensation for E
the lanci acquired. The concept of TOR 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 possession thereof was taken over
on 21.2.1987. It is contended that the respondent society whose F
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 TOR is to be granted at the present stage, G
would be grossly disproportionate. Pointing out the provisions
of the Development Control Regulations governing grant of
TOR, it is contended that OCR 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 OCR N-.2.4.17 can be H
    850      SUPREME COURT REPORTS                (2014] 10 S.C.R.


A made applicable, the conditions spelt out under OCR 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
B garden. Therefore, OCR N-.2.4.1 (A) is not applicable thereby
  ruling out the application of OCR No.2.4.17. It is also pointed
  out that the 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
C 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 OCR No.2.4.17 as held by the High Court;
  rather the said directions are merely clarificatory and were
D issued due to large scale deviations that have taken place in
  the matter of grant of TOR.

          6. Opposing the aforesaid contentions advanced on behalf
    of the appellants, Shri Vinod Bobde and Shri Shekhar
E   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 TOR was to lessen the financial burden of the State facing
F   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 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
G   the development plan i.e. as an existing garden or as reserved
    for a garden would not make any difference to the claim of TOR.
    ft 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.
H   While the matter was so pending the concept of TOR came to
  PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                    851
   HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]

be introduced in the Act and in the year 1997 (05.06.1997) the       A
modified OCR 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 TOR under OCR N-              B
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 OCR N-
.2.4.17 is a stand alone provision and under clause (ii) of the
said OCR the respondent society is entitled to its claim of TOR      c
under the MRTP Act though the land had been acquired under
Land Acquisition Act. In this regar,d, 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 OCR N-2.4.17 (ii).                o
Admittedly, no compensation has been received. It is further
submitted that the Government Order dated 03.02.2007
purports to amend the OCR which cannot be so done without
following the procedure prescribed under Section 37 of the
MRTP Act. The fact that in similar circumstances TOR had been        E
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          F
counsel appearing for the respondent society in C.A. No.3008-
3009 of 2010 has submitted that the availability of TOR to
cases of land acquired under the Land Acquisition Act after
invoking the provisions of Section 126(1) (c) of the MRTPAct
will not be open to be raised either by the State or the Municipal   G
Corporation once the OCR, particularly OCR 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
                                                                     H
    852       SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   process laid down in the Land Acquisition Act. Shri Bobde has
    pointed out that once Regulations have been framed
    contemplating grant of TOR 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
B   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 OCR remains
    its full legal effect must be given effect to.
c      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. OCR N-2.4.1 (A) and 2.4.17; and the
  Government Order dated 03.02.2007, the same may be
D extracted at the first instance.

          Relevant provisions of the MRTP Act

          "22. Contents of Development Plan -
E               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
F         necessary for all or any of the following matters, that is to
          say,-

                 (a) ............. .

G                (b) ............ .

                 (c) ............ .

                 (d) .............. .

H                (e) .............. .
PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                 853
 HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]
       (f).................                                     A

       (g) ................ .

       (h) ................ .

       (i) ............... .                                    B

       (j) ................. .

       (k) .................. .

      . (I) ..................... .                             c
       (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,       D
       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
       Development Control Regulations, and also for            E
       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     F
       allowed in a specified area, the use and purposes
       to which buildings or specified areas of land may
       or may not be appropriated, the sub-division of
       plots the discontinuance of objectionable users of
       land in any area in reasonable periods, parking          G
       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."                   H
    854       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A         "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
8         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,
c
          (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 Appropriate Authority, as the
D         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
E         Transferable Development Rights (TOR) 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
F         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.

G         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,
H
                 .>
PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                  855
 HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.)
 shall vest in the Planning Authority, Development Authority,   A
 or as the case may be, any Appellate Authority."

 Government Order dated 03.02.2007
                     "Maharashtra Regional & Town
                                Planning Act, 1966              B
                       Directive under Section 154
                                       About TOR.
       GOVERNMENT OF MAHARASHTGRA
      URBAN DEVELOPMENT DEPARTMENT
        MANTRALAYA, MUMBAI - 400 032.                           C
            DATED 3rd FEBRUARY, 2007.

                        ORDER

  No. TPS/Sankirna-06/CR-527/06/UD-13:- Whereas the             0
  provision of Transferable Development Rights (hereinafter
  referred to as "the said TOR") has been incorporated. in
  the sanctioned Development Control Regulations
  (hereinafter referred to as "the said OCR") with a view to
  reduce the financial burden of acquisition of lands           E
  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 TOR;                    F

        And whereas, sanctioned the said OCR of some
  Municipal Corporations also have provision to grant the
  said TOR for the lands acquired either under Maharashtra
  Regional& Town Planning Act, 1966 (hereinafter referred       G
  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;
                                                                H
    856       SUPREME COURT REPORTS               [2014] 10 S.C.R.


A              And whereas, it has come to the notice of
          Government that the rule regarding the grant of TOR such
          acquired lands have been misinterpreted and misused;

               And whereas, once the possession is delivered after
B         acquisition the rights of the owner are transferred to the
          Planning Authority and the application by the land owner
          demanding TOR thereafter can be said to be made without
          having any rights in the land;

                After considering the facts and circumstances
c         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:

D                             DIRECTIONS

                All the Municipal Corporations which have the
          provisions regarding grant of Transferable Development
          Rights (TOR) for the lands which are acquired under either
          the MRTP Act, BPMC Act, Private Negotiation or any other
E
          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:
F         NEW RULES:

          (1) Transferable Development Rights (TOR) shall not be
          permissible once an award has been declared under the
          acquisition process and or the possession has already
G         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.

H
PLINE MUNICIPAL CORP. v. KAUSARBAG COOP.                857
 HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.)
 (3) After completing the procedure laid down under Section     A
 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     8
 new rule mentioned hereinabove shall come into force with
 effect from the date of issue of this notification.
                              By order and in the name of
                                 Governor of Maharashtra.
                                                     Sd/-       C
                                        (Nandkishor Patil)
                           Under Secretary to Government"
  Development Control Regulation

 "N.2.4.1 (A). The owner (or lessee) of a plot of land which    o
  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           E
  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        F
  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:
                                                                G
  (i) Where Land Acquisition has been declared but request
  was made for TOR to the Special Land Acquisition Officer
  after 30th September 1993 i.e. the date of publication of
  these draft Development Control Regulation containing
  TOR concept.                                                  H
    858       SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A         (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 being in force within 12 years prior to 30th
B         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
c 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
0 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-
E 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 respondent-society on the date of publication of the final
F 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
G perspective highlighted by the respondent society as the
  controversy over the entitlement to TOR under the relevant OCR
  is capable of being resolved on a wholly different basis to which
  aspect of the matter we may now turn.

H         11. The concept of TOR was introduced for the first time
  PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                      859
   HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]
in the MRTP Act in the year 1993 by an amendment of Section            A
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 'OCR') N-2.4 with effect from
5.6.1997. In its simplest form, the concept of TOR involves the
surrender of land reserved for various public purposes in the          B
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 object behind introduction of TOR, as                C
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                 D
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                E
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
                                                                       F
distinguishable from the normal process of acquisition under
the same Act i.e. the Land Acquisition Act. 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 SA of the L.A. Act are
dispensed with and straightway a notification under Section 6          G
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
                                                                       H
    860     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A 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
B to be kept in mind.

         13. OCR 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
C   land, which is reserved for a public purpose in the development
    plan, to the award of TOR in lieu of compensation upon
    surrender of the land free of cost. If, OCR No.N-2.4 had not
    contemplated any further situations for grant of TOR the
    argument advanced on behalf of the appellants would have
    merited serious consideration. However, OCR N-2.4.17,
0
    extracted above, contemplates two other situations for grant of
    TOR. Under OCR 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
E   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 OCR containing
    the TOR concept) claims for grant of TOR are required to be
    entertained. OCR N-2.4.17 extends the frontiers outlined under
    Section 126(1)(a) and (c) and makes the grant of TOR
F   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
G   introduction of the concept of TOR by the amendment ofthe
    MRTP Act of 1993. Having regard to the clear language
    contained in OCR N-2.4.17(ii) and the object sought to be
    achieved by the introduction of TOR, we do not see as to how
    grant of TOR can be confined only to cases of lands which have
    been reserved in the development plan and not to lands
H
                /          -
     PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.
      HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]
                                                               861
                I

acquired under the Land Acquisition Act which land eventually A
becomes a part of the finally approved and sanctioned
developmeflt plan. The above would also lead to the conclusion
that OCR 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).                                            B

     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 c
has already been noted. If under OCR N-2.4.17, TOR 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, reference to
any other Act in OCR N-2.4.17 would include the L.A. Act so · 0
as to bring land covered by the normal process of acquisitions
under the L.A. Act within the fold of OCR N-2.4.17. The
acquisition of the land belonging to the respondent society
would, therefore, be clearly covered by the provisions of OCR
N-2.4.17.                                                        E
    --15. "Making of OCR 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 OCR under OCR N-2.4.17 so far as lands
in respect of which Award under the Land Acquisition Act had F
been passed or possession of which has been taken over. This
is contrary to the clear intent behina OCR 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, G
surprisingly the Government Order goes on to state that,
"Pending approval of the aforesaid modification the new rule

1.    Pune Municipal Corporation and Anr. Vs. Promoters and Builders
      Association and Anr. ((2004) 10 sec 796].                        H
    862        SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A mentioned hereinabove shall come into force with effect from
  the date of issue of this notification". The Government Q;·der in
  question, having been issued under Section 154 of the MRTP
  Act, therefore, cannot override the OCR N-2.4.17 as the
  directions under Section 154 of the MRTP Act would be in the
B 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.

c        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
0   of a OCR 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 same.
    The OCR governing the grant of TOR though may have gone
E   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
F   a judicial verdict. Such a course of action is jurisprudentially
    impermissible. So long as the OCR 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
    Vitera/Ii Vs. Seaton 3 approved in R.O. Sheffy Vs. International
G   Airport Authority" :

          "An executive agency must be rigorously held to the
    2.   (2003) s sec 413.
    3.   3.L Ed.2d. 1012.
H   4.   (1979) 3 sec 489.
  PUNE MUNICIPAL CORP. v. KAUSARBAG COOP.                   863
   HOUSING SOCIETY. LTD. [RANJAN GOGOi, J.]
     standards by which it professes its action to be judged.     A
     .. 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   B
     add, rightly so. He that takes the procedural sword shall
     perish with the sword."

      17. For the above-stated reasons, the conclusion is
obvious. The rejection of the claim of the respondent Society
to TOR under the MRTP Act read with OCR N-2.4.17 is               C
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.                                     D
Rajendra Prasad                              Appeals dismissed.