BMC must follow procedure to acquire church land: HC

MUMBAI: Bombay high court has directed that if BMC seeks to acquire part of a land owned by a church in Borivali (W) adjacent Mandapeshwar caves to develop a public garden, it will follow the procedure under Right to Fair Compensation and Land Acquisition Act, 2013.
“Needless to observe that till the Municipal Corporation resorts to appropriate procedure in law as discussed above to acquire the petitioner’s land, the municipal corporation shall not disturb the peaceful possession of the petitioner in any manner whatsoever except if consented by the petitioner,” said Justices Girish Kulkarni and Arun Pednekar in the June 21 verdict
Our Lady of Immaculate Conception Church filed the petition through parish priest and trustee Fr Gerald Fernandes.Out of the church's 4732 sq m land, 1309 sq m is reserved for garden/park. BMC requested it to hand over the land in lieu of transferable development rights (TDR). The church on Feb 9 said as a registered charitable organisation, it cannot utilise TDR as it is outside its activities. It was willing to hand over the land provided BMC pays monetary compensation. On Feb 21 BMC rejected the request to pay monetary compensation and said it was ready to take over possession by offering TDR only. The church moved the High Court.
BMC’s advocate Priyanka Sonawane said MRTP Act allows TDR in lieu of compensation and the church cannot insist on monetary compensation. The judges agreed with the church’s advocate Dhananjay Deshmukh that for TDR or FSI (floor space index) to be granted, there has to be basic agreement between the parties. They said as per Section 126 a land reserved for public purpose can either be acquired by an agreement by paying an amount or in lieu of it TDR or FSI. “…we have no hesitation to hold that the land of the petitioner, in absence of any agreement between the petitioner and the planning/development authority, can be acquired only under the 2013 Act,’’ Justice Pednekar wrote for the bench.
The judges said BMC’s contention that the church needs to only accept TDR and cannot claim compensation is “patently misconceived” and considering MRTP Act “would not permit the respondents to foist TDR/FSI on the petitioner in the absence of an agreement to this effect and avoid to follow the land acquisition process.” Therefore, BMC will have to follow procedure under 2013 Act, “ in absence of an agreement in regard to acceptance of TDR/FSI.”