(PER : A.S. CHANDURKAR, J.)

1. RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

2. The dispute that arises for resolution in this writ petition filed under Article 226 of the Constitution of India is the entitlement of the petitioner to the compensation towards acquisition of the petitioner’s land.

3. Undisputed facts giving rise to the present proceedings are that the petitioner, a proprietorship firm, claims ownership of land bearing Khasra Numbers 11/3 and 11/4 in Sheet Number 8 to the extent of 1 Hectare 23 R or 11883 Square Meters at Mouza Bhandewadi, Pardi Road, Nagpur. The said land was earmarked partially for market, for park and for a twelve meter road in the development plan of the city of Nagpur. The petitioner claims to have acquired interest in about 52 plots from the recorded owner of the said property – Swaraj Ekta Cooperative Housing Society pursuant to the registered document dated 05.07.2011. Public Interest Litigation No. 50 of 2012 was initiated in this Court raising the issue of shifting of Pardi Bazar situated at Bhandara Road to a place that was reserved for the markets. The petitioner filed Civil Application (O) No.517of 2015 for intervention in the said proceedings and expressed its willingness to voluntarily surrender the land admeasuring 11883 Square Meters in lieu of Transferable Development Rights (for short, ‘the TDR’). The initial application in thatregard moved by the petitioner was dated 13.08.2015 followed by other applications. In the saidproceedings, the Division Bench on 12.02.2016 passed an order recording the fact that the petitioner was willing to accept the TDR under Government Resolution dated 28.01.2016 for the aforesaid land. Accordingly, the Nagpur Municipal Corporation (for short, ‘the NMC’) was directed to accept the petitioner’s proposal for grant of the TDR in accordance with the Government Resolution dated 28.01.2016. Necessary steps were to be undertaken within a period of four weeks from the date of the order. It was further directed that after vesting of the said land in the NMC it could proceed further to construct the said market either through its own funds or on Build, Operate and Transfer – BOT basis. Pursuant to the aforesaid order there was exchange of communications between the petitioner and the NMC. Ultimately on 06.01.2017 the petitioner moved an application for grant of TDR in accordance with the Government Resolution dated 28.01.2016. The petitioner handed over possession of land admeasuring 11883 Square Meters to the NMC on 31.12.2018 and it was issued a possession receipt in that regard. In the matter of compensating the petitioner in lieu of the aforesaid land, the General Body of the NMC on 29.01.2019 passed Resolution Number 3421 by which it was proposed to seek funds from the State Government so as to compensate the petitioner for the aforesaid land. Based on the aforesaid resolution, the NMC made a request to the State Government to release the funds as indicated in its resolution. Since nothing further happened in the matter, the present writ petition was filed on 18.10.2019 praying that the NMC be directed to assess the market value of the entire land and pay compensation to the petitioner towards acquisition of the said land.

4. During pendency of the present proceedings and on the directions of this Court, the State Government through its Urban Development Department considered the request that was made by the NMC for release of the compensation. On 21.05.2021 the Urban Development Department issued a communication to the Municipal Commissioner, Nagpur Municipal Corporation stating therein that the lands in question were to be utilized forfacilitating the provision of flyover, ROB and RUB. The acquisition was not for setting up of a market and hence the primary responsibility to acquire the land was of the Planning Authority. Reference was made to the Government Resolution dated 04.05.2018 to state that the demand for release of funds as made by the NMC was not liable to be accepted in view of said Government Resolution. The entire responsibility being that of the NMC it was for it to take all necessary steps and compensate the petitioner. Thereafter on 29.04.2022, the NMC issued a communication to the petitioner and called upon it to complete all necessary formalities so as to facilitate issuance of the TDR certificate. By amending the writ petition the petitioner has challenged the decision of the Urban Development Department dated 21.05.2021 as well as the communication dated 29.04.2022 issued by the NMC on the premise that requiring the petitioner to accept TDR after a span of more than six years from passing of the order in the Public Interest Litigation and four years after taking possession of the land in question was arbitrary, illegal and unsustainable in law.

5. The learned counsel for the parties agreed to place on record their written submissions to enable the Court to decide the present proceedings. Such permission was accordingly granted by the order dated 20.03.2023. The learned counsel for the petitioner as well as the NMC has accordingly placed on record their written submissions alongwith the decisions on which they seek to place reliance. The writ petition has accordingly been considered for adjudication.

6. Shri Makarand Agnihotri, learned counsel for the petitioner after referring to the factual aspects sought to urge that the stand taken by the NMC of requiring the petitioner to accept compensation in the form of TDR at such a belated stage was highly arbitrary and violative of Article 300A of the Constitution of India. According to the petitioner by the order dated 12.02.2016 the NMC was required to act within a period of four weeks from the said order in the matter of grant of TDR. Though the petitioner had sought grant of TDR by its application dated 05.01.2017 and had thereafter handed over possession on 31.12.2018 no effective steps were taken by the NMC to grant TDR to the petitioners. On the contrary the General Body of the NMC passed a resolution on 29.01.2019 resolving to grant monetary compensation to the petitioner to the tune of Rs.44,13,77,779/-. Even while determining this amount of compensation,the belting system had been adopted which was not in consonance with the law as laid down by the Hon’ble Supreme Court. Having been deprived of its land as on 31.12.2018, the petitioner had not received any compensation whatsoever, either in the form of TDR or in monetary terms. The documents on record indicated that since inception the petitioner had taken all necessary steps that were required in the matter of TDR but it was the NMC that failed to take necessary steps in the matter. Reference was then made to the Government Resolution dated 04.05.2018 and it was on this basis that the NMC had sought release of the amount of compensation by the State Government. Though funds had been released for various other development activities, the State Government had refused to release such funds on the premise that the issue was not covered by the said Government Resolution. The resolution dated 29.01.2019 passed by the NMC clearly indicated that the lands had been acquired for development of the market and that it was part of PRAGATI - Pro-Active Governance And Timely Implementation project. For this reason the communication dated 21.05.2021 issued by the State Government refusing to release funds in favour of the NMC was bad in law and was liable to be set aside.

The objections raised by the NMC for not compensating the petitioner had no substance. The petitioner having offered its land for being utilized in the Public Interest Litigation and that offer having been accepted by the NMC at that point of time was required to be taken into consideration. There was no question of any voluntary surrender of the land and on the contrary the said land was proposed to be handed over to the NMC on payment of monetary compensation. The petitioner having submitted its application on 05.01.2017 for receipt of TDR and the Corporation having not taken any steps for considerable period of time, it was clear that the terms and the conditions agreed initially could not be said to be binding on the petitioner in the matter of grant of compensation. When the order dated 12.02.2016 was passed the market rate of TDR was above the price of the land as perthe ready reckoner. However presently themarket rate of the TDR was below the ready reckoner rate. While the NMC would enrich itself having taken over the land on 31.12.2018, the petitioner was required to suffer loss in the matter. Failure to raise a compound wall by the petitioner was not at all relevant inasmuch as possession of the land was taken on 31.12.2018 without any protest as regards absence of such compound wall. The delay on the part of the NMCinoffering theTDRon 29.04.2022was after passage of considerable time that was unreasonable and hence there was no question of foisting the same on the petitioner. It was thus submitted that the petitioner be directed to be paid the monetary compensation in accordance with the resolution of the General Body dated 29.01.2019 but by re-determining the amount of compensation in an appropriate manner. The impugned communications dated 21.05.2021 issued by the Urban Development Department of the State Government as well as 29.04.2022 issued by the NMC were liable to be set aside. In support of the aforesaid submissions, the learned counsel placed reliance on the decisions in Pt.Chet Ram Vashist (Dead) by LRs. Versus Municipal Corporation of Delhi [(1995) 1 SCC 47] [LQ/SC/1994/1019] , Joseph Severance & Others Versus Benny Mathew & Others [(2005) 7 SCC 667] [LQ/SC/2005/955] , State of Maharashtra Versus Bhimashankar Sidramappa Chippa [2009(5) Mh.L.J. 76], Erach Boman Khavar Versus Tukaram Shridhar Bhat & Another [(2013) 15 SCC 655] [LQ/SC/2013/1376] , Prem Jeevan Versus K.S. Venkata Raman & Another [(2017) 11 SCC 57] [LQ/SC/2017/93] , Vidya Devi Versus State of Himachal Pradesh & Others [(2020) 2 SCC 569] [LQ/SC/2020/23] , Patiala Urban Planning and Development Authority & Another Versus Tarlochan Singh & Others [(2020) 17 SCC 224], Padia Timber Company Private Limited Versus Board of Trustees of Visakhapatnam Port Trust, Through its Secretary [(2021) 3 SCC 24] [LQ/SC/2021/4 ;] ">[(2021) 3 SCC 24] [LQ/SC/2021/4 ;] [LQ/SC/2021/4 ;] , Central Bank of India & Others Versus Dragendra Singh Jadon [(2022) 8 SCC 378] [LQ/SC/2022/955 ;] ">[(2022) 8 SCC 378] [LQ/SC/2022/955 ;] [LQ/SC/2022/955 ;] , Kalyani (Dead) Through LRs. & Others [Civil Appeal No. 3189 of 2022] decided on 26.04.2022, Shree Vinayak Builders and Developers Versus The State of Maharashtra & Others [Writ Petition No. 2231 of 2019] decided by the Full Bench on 25.07.2022 and Shree Vinayak Builders & Developers Versus The State of Maharashtra & Others [Writ Petition No. 2231 of 2019] decided on 13.10.2022.

7. Shri Girish Kunte, learned counsel for the NMC countered the aforesaid submissions made on behalf of the petitioner and opposed the writ petition. It was submitted that the only relief to which the petitioner was entitled was grant of TDR. In view of the communication dated 29.04.2022 the petitioner was entitled to receive TDR and the Corporation was willing to grant the same accordingly. It was pointed out that there was no delay on the part of the NMC in offering the TDR. The petitioner had failed to comply with various technical requirements in the matter. The petitioner failed to construct the compound wall demarcating the land in question despite being called upon to do so. Though possession of the aforesaid land was received on 31.12.2018 the mutation entry in favour of the NMC was effected only on 23.01.2019. Despite issuance of various reminders the petitioner had failed to supply necessary documents to enable the NMC to handover the TDR certificate to the petitioner. The resolution dated 29.01.2019 passed by the General Body of the NMC was based on the Government Resolutions dated 04.05.2018 and 17.11.2018 by treating it as a special case. However in view of the communication by the State Government on 21.05.2021 the petitioner was only entitled for TDR. There was no question of granting any monetary compensation to the petitioner and the financial position of the NMC also did not permit it to do so. The Unified Development Control Regulations, 2020 which came into operation from 03.12.2020 were not applicable in the present matter. On the contrary, as per the Government Resolution dated 28.01.2016 and Clause 4.1.1 thereof it was necessary for the petitioner to erect the compound wall. The same was however not done by the petitioner. There being a voluntary surrender of the aforesaid land the petitioner was entitled for TDR in terms of Section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966 (for short, ‘the Act of 1966’) and according the grant of TDR was duly approved on 29.04.2022. It was not permissible for the petitioner to change its stand from time to time and reference in that regard was made to the principle of res-judicata. Since the NMC had offered TDR to the petitioner by the impugned communication dated 29.04.2022 there was no question of grant of any monetary compensation. In support of said submissions, the learned counsel placed reliance on the decisions in Mathura Prasad Bajoo Jaiswal & Others Versus Dissibai N.B. Jeejeebhoy [(1970) 1 SCC 613] [LQ/SC/1970/84] , Sri Bhavanarayanaswamivari Temple Versus Vadapalli Venkata Bhavanarayanacharyulu [(1970) 1 SCC 673] [LQ/SC/1970/163] , Kanta Goel Versus B.P. Pathak & Others [(1977) 2 SCC 814] [LQ/SC/1977/165] , Indira Bai Versus Nand Kishore [(1990) 4 SCC 668] [LQ/SC/1990/508] , Janhit Manch Through its President Bhagwanji Raiyani & Another Versus State of Maharashtra & Others [(2019) 2 SCC 505] [LQ/SC/2018/1612] , Vaijinath Yeshwanta Jadhav Deceased by L.R. & Others Versus Afsar Begum, Wife of Nadimuddin, Deceased by L.R.s & Others [Civil Appeal No. 652 of 2020] and Neelima Srivastava Versus The State of Uttar Pradesh & Others [Civil Appeal No.4840 of 2021] to submit that the writ petition was liable to be dismissed.

8. We have perused the written submissions filed on behalf of the petitioner as well as the NMC. We have also gone through the decisions on which the learned counsel for the parties seek to place reliance. We have thereafter given thoughtful consideration to the submissions as made. For considering the prayers made in the writ petition, we deem it appropriate to refer to certain undisputed facts that have bearing on the issues as raised:-

(a) Proceedings in Public Interest Litigation No. 50 of 2012:-

The aforesaid proceedings in public interest were filed in the matter of shifting of Pardi Bazar situated at Bhandara Road, Nagpur to a place reserved formarketsunder the Development Plan. The subject property with which the petitioner is concerned was shown to be reserved as a market zone under the Development Plan. The petitioner claiming interest in about 52 plots located in Khasra Numbers 11/3 and 11/4 of Mouza Bhandewadi filed Civil Application (O) No.517 of 2015 seeking leave to intervene in the said proceedings. The NMC filed its affidavit dated 27.08.2015 stating therein that out of 59 plots located therein the petitioner as intervenor was entitled to seek TDR for its 52 plots. The Division Bench accordingly considered the intervention application of the petitioner and on 12.02.2016 passed the following order :-

“Heard.

Civil Application No.517 of 2015 for intervention has been filed by the applicant seeking a direction to respondent/Nagpur Municipal Council to acquire the land of the applicant bearing Khasra Nos. 11/3 and 11/4 at mouza Bhandewadi, admeasuring 1.23 HR out of 1.37 HR for Pardi market as per the reservation contemplated in Nagpur City Development Plan and issue “Market Zone” Development Right Certificate (TDR) to the applicant in respect of the said land.

The matter was adjourned from time to time so as to enable the respondent/Municipal Council and the present applicant to discuss the matter. It is a common knowledge that, on the Bhandara road, which is having a heavy traffic, there is a regular market on the road which causes great inconvenience to the citizens travelling on the said road. In that view of the matter, the respondent/Municipal Council as well as the applicant were directed to sort out the issue.

Now the State Government has issued a Government Resolution on 28.1.2016 thereby modifying its earlier policy of grant of transferable Development Rights.

The applicant is willing to accept the TDR as provided under the said Government Resolution for the area in his possession. We find that there should be no impediment in the way of the Nagpur Municipal Corporation to accept the proposal of the petitioner.

It cannot be in dispute that the Corporation is not having sufficient funds to acquire the land. Resultantly, the land would remain under reservation and the Corporation would also not be in a position to construct the market. Construction of market would substantially ease out the problem on the Bhandara road. If the Corporation is not having sufficient funds to construct the said market, the Corporation can also consider constructing market on Build Operate Transfer (BOT) basis.

We find that if this project is implemented as a model project, the Corporation may get offers in other areas of the City, which will substantially reduce the financial burden on the Corporation for providing amenities to the citizens without there being burden on the Corporation.

In that view of the matter, we direct the Municipal Corporation to accept the proposal of the petitioner for granting him TDR in accordance with the Government Resolution dt.28.1.2016. The same shall be done within a period of four weeks from today.

After the land is vested in the Corporation, the Corporation shall proceed further to construct the said market either on its own funds or on the BOT basis. The same shall be done as expeditiously as possible.

Insofar as parking of trucks on the Bhandara road is concerned, as already directed earlier, the Police Authorities so also the R.T.O. Authorities would continue to have surprise visits on the roads in question regularly and control menace of unauthorised parking on the said road.

With the above observations and directions, the application is disposed of.”

(emphasis supplied)

Asperthe aforesaid order, the NMC was directed to accept the petitioner’s proposalfor grant ofTDRinaccordance with the Government Resolution dated 28.01.2016. It is thus clear that the aforesaid order forms the entire basis of the claims of the petitioner as well as the NMC.

(b) Offer of TDR to the petitioner :-

In Public Interest Litigation No. 50 of 2012 the petitioner filed an application for intervention and expressed willingness to accept TDR in lieu of surrender ofland admeasuring 11883 square meters. The order dated 11.02.2015 passed in the said proceedings records the statement made on behalf of the petitioner that it was willing to surrender the land in question for construction of a market. It is thereafter that the order dated 12.02.2016 came to be passed directing the NMC to accept the petitioner’s proposal for grant of TDR as per the notification dated 28.01.2016. The exchange of communications between the parties and events that have occurred in the interregnum have been referred to hereinabove. Possession of the subject land has been taken on 31.12.2018. The NMC has by the impugned communication again offerred TDR on 29.04.2022. Perusal of the notification dated 28.01.2016 indicates that the same has been issued in exercise of powers under Section 27(1AA)(c) of the Act of 1966. The regulations in the matter of grant of TDR have been stated in Annexure-B thereof. The same appears to be a Code in itself in the matter of grant of TDR. Thus with the passing of the order dated 12.02.2016 in Public Interest Litigation No. 50 of 2012 in Public Interest Litigation No. 50 of 2012 that has attained finality, the rights of the petitioner as well as the NMC stand crystallized by the same.

(c) Steps taken by the petitioner and the NMC pursuant to the order dated 12.02.2016 in PIL No. 50 of 2012 :-

After the aforesaid order was passed the petitioner issued various communications seeking grant of TDR. On 06.01.2017 the petitioner moved an application in the prescribed format for grant of TDR as per notification dated 28.01.2016. This was followed by applications dated 27.04.2017, 25.01.2018, 12.03.2018, 24.07.2018 and 08.08.2018. By all these communications, the petitioner sought release of the TDR.

On the other hand, the NMC issued communications dated 09.03.2016, 13.04.2016, 17.05.2018, 03.10.2018 requiring the petitioner to complete various formalities for grant of TDR.

The possession of the aforesaid land admeasuring 11883 Square Meters was taken by the NMC on 31.12.2018 and a possession receipt to that effect came to be executed. In the meanwhile, the General Body of the NMC passed Resolution Number 342 on 29.01.2019 and resolved to demand an amount of Rs.81,58,24,483/- from the State Government as a special case under the provisions of Section 124G(3) of the Act of 1966. The aforesaid resolution was thereafter forwarded to the State Government on 21.02.2019. The petitioner was informed of the same on 27.03.2019. In view of there being no further development in the matter, the present writ petition was filed on 18.10.2019.

9. The challenge to the communication dated 21.05.2021 issued by the Urban Development Department can be taken up first for consideration. The resolution dated 29.01.2019 seeking release of funds by the State Government with a view to augment the expenditure for acquiring the land was stated to be considered by the Urban Development Department. Since the NMC sought release of the said funds by relying upon the Government Resolution dated 04.05.2018 the Urban Development Department stated that the said Government Resolution was applicable in cases of acquisitions with regard to the construction of flyovers, ROB and RUB of National Highways. Since the land in question was reserved for market and was proposed to be used for market, the said Government Resolution was not applicable. It was the primary responsibility of the NMC to bear the expenses for the same. The amounts therefore were required to be raised from its own funds. It was further stated in the said communication that the NMC was not justified in relying upon the Government Resolution dated 04.05.2018.

A perusal of the Government Resolution dated 04.05.2018 indicates that the same has been issued by the Urban Development Department of the State Government. It clearly states that for completion of projects in the matter of construction of flyovers, ROB and RUB of National Highways the funds required towards acquisition of lands would be made available to local bodies under the “Maharashtra Suvarna Jayanti Nagarotthan MahaAbhiyan”. The manner in which such funds were to be allocated has been specified therein. On a plain reading of the said Government Resolution it becomes clear that it takes within its purview flyovers, ROB and RUB to be constructed under the National Highways Authority of India. The flyovers, ROB and RUB ought to be located within the concerned local body. It is not in dispute that the lands in question are to be utilized for settlement of market and the land is not proposed to be used either for construction of flyover, ROB or RUB by the National Highways Authority of India. It is no doubt true that from the area adjoining these lands the National Highways Authority of India had proposed the construction of flyover/ROB. It is for this reason that the Urban Development Department of the State Government in clear terms has stated that the Government Resolution dated 04.05.2018 was not applicable so as to facilitate release of any funds in favour of the NMC to meet the expenses of acquisition of the said lands. We do not find thatthere is any illegality in the stand taken by the Urban Development Department of the State Government in its communication dated 21.05.2021 stating the aforesaid. For the same reason the Government Resolution dated 17.11.2018 also issued by the Urban Development Department of the State Government cannot be made applicable to the lands in question. This resolution has been issued to facilitate what has been provided for in the Government Resolution dated 04.05.2018. We therefore do not find any basis to interfere with the communication dated 21.05.2021 at the behest of the petitioner.

10. It would thus be necessary to consider as to whether the petitioner can now be permitted to give up its offer of willingness to accept TDR and instead seek monetary compensation. The grievance of the petitioner is based on the delay in the matter of grant of TDR pursuant to the order dated 12.02.2016. In this regard, it may be stated that the conduct of both the parties indicates that they exchanged communications from time to time in the said matter. The petitioner’s application in the prescribed format for release of TDR is dated 06.01.2017. The NMC sought compliance of certain other formalities in the matter and insisted upon construction of a compound wall in view of Clause 4.1.1 of the notification dated 28.01.2016. In the midst of these communications, the General Body of the Nagpur Municipal Corporation proceeded to pass a resolution and sought release of grants from the Urban Development Department of the State Government. The matter was pending with the said Department until it responded on 21.05.2021 by refusing to release any funds in favour of the NMC on the ground that the Government Resolution dated 04.05.2018 did not permit it to do so. Thus for a period from 29.01.2019 till 21.05.2021 which is a period of about a year and four months the issue with regard to release of funds was pending with the Urban Development Department of the State Government. We however find that in the light of the Government Resolution dated 04.05.2018 the Urban Development Department of the State Government was justified in refusing to release such funds.

11. These events occurred during pendency of the present proceedings and ultimately on 29.04.2022 the NMC issued the impugned communication offering TDR to the petitioner subject to complying with the technical requirements. The petitioner naturally refused to take further steps since its grievance with regard to delay in offering the TDR and prayer for monetary compensation was pending in the present proceedings. The blame for the time taken in offering the TDR to the petitioner partly lies with both the parties. After the possession was handed over to it on 31.12.2018, the NMC proceeded to pass a resolution through its General Body for release of funds which request has been found not to be in consonance with the Government Resolution dated 04.05.2018. The petitioner during this period preferred to wait for the outcome of this exercise since it would have received compensation in monetary terms which is evident from its communication dated 26.03.2019. The issue with regard to monetary compensation was put to an end by the State Government by its communication dated 21.05.2021. After a period of almost one year the NMC has called upon the petitioner to complete the formalities for release of TDR vide communication dated 29.04.2022.

12. According to the petitioner, in absence of there being any concluded contract between the parties in the matter of acceptance of TDR the petitioner after a lapse of considerable time cannot now be forced to accept such TDR especially when the value of such TDR that was admissible when the order in the Public Interest Litigation was passed on 12.02.2016 has drastically reduced today. The petitioner seeks to rely upon the decision in Padia Timber Company Private Limited (supra) to urge that in the absence of any concluded contract between the parties it is no longer binding on the petitioner to accept TDR. Reliance is also sought to be placed on the decision of the Full Bench in Shree Vinayak Builders and Developers (supra) to contend that the land owner can withdraw his request and refuse or decline to surrender the land as long as there is no concluded contract between the parties. The offer of TDR in lieu of compensation by itself would result in concluded contract.

13. In our view the relevant events that would have to be borne in mind in this context are the order dated 12.02.2016 passed in the Public Interest Litigation directing the NMC to accept the petitioner’s offer for grant of TDR, application dated 06.01.2017 made by the petitioner pursuant to this order, possession of the said land being handed over to the NMC on 31.12.2018, the resolution passed by the General Body on 29.01.2019, the request for release of funds being refused by the State Government on 21.05.2021 and the offer of TDR ultimately made to the petitioner on 29.04.2022. The petitioner on its own volition appeared in the Public Interest Litigation and offered to accept the TDR under Government Resolution dated 28.01.2016 in lieu of land admeasuring 11883 Square Meters. This resulted in the order dated 12.02.2016 being passed at the behest of the petitioner. The NMC was directed to accept the petitioner’s proposal for granting it TDR in accordance with the said Government Resolution. The aforesaid order continues to operate even today. The rights of the parties therefore are governed by the said order which is in the nature of an order inter-parties. Without seeking modification or variation of the order dated 12.02.2016 the petitioner cannot be now heard to contend that instead of grant of compensation by way of TDR it should be offered monetary compensation. In our view the rights of the parties would continue to be governed by the said order as long as the same operates. In the facts of the case in hand therefore, the absence of there being a concluded contract between the parties is not of much relevance since the rights of the parties stand crystallized by virtue of the order dated 12.02.2016. For this reason, the ratio of the aforesaid decisions cannot be applied to the facts of the present case. We therefore find that the willingness expressed by the petitioner in the earlier litigation that resulted in passing of the order dated 12.02.2016 now precludes the petitioner from refusing to accept TDR and seek monetary compensation in lieu thereof. The parties would be bound by the earlier orders passed by this Court that have attained finality. The decision in Mathura Prasad Bajoo Jaiswal (supra) holds that an issue of fact determined between the parties cannot be re-opened in subsequent proceedings. The other decisions relied upon by the learned counsel for the NMC support this reasoning.

14. Having held that the parties are bound by the order dated 12.02.2016 and the petitioner cannot be permitted to decline the acceptance of TDR, we cannot be oblivious of the time that has been taken by the NMC in actually offering such TDR to the petitioner. The offer of TDR has been made by the NMC during pendency of the present proceedings on 29.04.2022. The petitioner has pointed out that the value of the TDR in 2016-17 cannot be compared to its present value. The said value has reduced considerably and compelling the petitioner to accept TDR in these circumstances would result in there being an unfair bargain. The petitioner has sought to rely upon the decision in Kalyani through legal heirs & Others as well as Vidya Devi (supra) to urge that under Article 300A of the Constitution of India the petitioner cannot be deprived of its lands in such manner. It is true that with passage of time the value of TDR that was admissible in 2017 when the petitioner submitted its application has undergone a change and the same has reduced when such TDR was offered on 29.04.2022. It is asserted by the petitioner that even the NMC is offering TDR at about 35% of the rate of the ready reckoner. It is also stated that the concept of TDR has now undergone a change as per the Unified Development Control and Promotion Regulations for Maharashtra, 2020 by converting it to Reservation Credit Certificate – RCC.

It has to be borne in mind that the petitioner cannot be awarded compensation in monetary terms since the Urban Development Department is not liable to provide any financial aid to the NMC considering the purpose for which the lands were required. The NMC is also not in a financial position to monetarily compensate the petitioner and it for this reason that the petitioner’s offer for TDR came to be accepted. For want of award of monetary compensation the land now cannot be directed to be returned back to the petitioner. The purpose for its requirement was in larger public interest and that purpose cannot be permitted to be defeated. It would therefore be necessary to compensate the petitioner by offering it larger TDR than what is admissible under the notification dated 28.01.2016. The grant of such additional TDR would compensate the petitioner in the light of the time taken by the NMC to offer the same since the petitioner had made such application on 06.01.2017 and the possession of the land in question was handed over on 31.12.2018. This would ensure that whilst the public purpose for which the land admeasuring 11883 Square Meters was proposed to be utilized by the NMC would stand achieved, the petitioner would also be compensated with grant of additional TDR to the extent of 20% to what it is entitled under the notification dated 28.01.2016. The equities between the parties could be balanced in the said manner. The course of balancing competing interests between the parties as was done by the Hon’ble Supreme Court in Ramniklal N. Bhutta & Another Versus State of Maharashtra & Others [(1997) 1 SCC 134] [LQ/SC/1996/1959] would have to be followed.

15. In the light of aforesaid discussion, the following order is passed:-

"(A) The offer of TDR made by the NMC on 29.04.2022 is upheld subject to the petitioner being granted 20% additional TDR besides the TDR that is admissible under the Notification dated 28.01.2016. The petitioner is entitled to be compensated in terms of grant of TDR in the manner stated hereinabove and the petitioner is not entitled to receive monetary compensation in lieu of TDR for the land admeasuring 11883 Square Meters. The necessary steps in this regard shall be taken by the NMC within a period of eight weeks from today.

(B) The decision of the Urban Development Department of the State Government dated 21.05.2021 refusing to release financial aid in favour of the NMC for paying monetary compensation to the petitioner is upheld."

16. Rule is disposed of in aforesaid terms with no order as to costs.