BMC to Follow Fair Compensation Procedure for Borivali Church Land - HC

Summary:

 The Bombay High Court has directed that if the BMC wishes to acquire part of a church-owned land in Borivali for developing a public garden, it must follow the Right to Fair Compensation and Land Acquisition Act, 2013. The BMC cannot disturb the church's possession until the procedure is followed.

High Court Directive for Land Acquisition

The Bombay High Court has mandated that if the BMC intends to acquire part of the land owned by Our Lady of Immaculate Conception Church in Borivali (W), adjacent to Mandapeshwar Caves, for the purpose of developing a public garden, it must adhere to the Right to Fair Compensation and Land Acquisition Act, 2013.

Church's Petition and BMC's Proposal

The church, through its parish priest and trustee Fr. Gerald Fernandes, filed a petition regarding its 4,732 sqm land, out of which 1,309 sqm is reserved for a garden or park. The BMC requested the land in exchange for transferable development rights (TDR). The church, on February 9, stated it could not utilize TDR due to its status as a registered charitable organization and was willing to hand over the land if compensated monetarily.

BMC's Stance and Legal Proceedings

On February 21, the BMC refused to pay monetary compensation, insisting on offering TDR instead. The church then approached the High Court. BMC’s advocate, Priyanka Sonawane, argued that the MRTP Act allows TDR in lieu of compensation, and the church cannot demand monetary compensation. Court's Ruling on Compensation The judges agreed with the church’s advocate, Dhananjay Deshmukh, that an agreement is necessary for TDR or FSI (floor space index) to be granted.

They emphasized that as per section 126, land reserved for public purposes can be acquired either by agreement with monetary compensation or through TDR/FSI. Justice Arun Pednekar, writing for the bench, stated that in the absence of an agreement, the land can only be acquired under the 2013 Act.

Implications for BMC

The court declared that the BMC’s contention that the church must accept TDR and cannot claim compensation was "patently misconceived." The MRTP Act does not allow the imposition of TDR/FSI without an agreement, and the land acquisition process must be followed according to the 2013 Act. Therefore, the BMC is required to adhere to the procedure outlined in the 2013 Act for acquiring the church's land.