Amenity TDR Under Section 126(1)(b) MRTP Cannot Be Waived by LOI, Delay No Bar: Supreme Court in Brihanmumbai Municipal Corporation v. Vijay Nagar Apartments [2026 INSC 517]

In Brihanmumbai Municipal Corporation & Ors. v. Vijay Nagar Apartments & Ors. (2026 INSC 517), the Supreme Court held that the condition in the Corporation's LOI, the Landowner's undertaking and the Maintenance Agreement that no amenity TDR would be claimed for developing a garden on surrendered land did not amount to a waiver, as the Corporation could not impose a pre-condition requiring the Landowner to abjure one part of its statutory compensation to receive the other (paras 43, 49, 51). The right crystallised on surrender in 2002, so the later DCPR, 2034 did not apply, and the 17-year gap did not bar the claim (paras 58, 62, 66). A Bench of Justice J.K. Maheshwari and Justice Atul S. Chandurkar dismissed the Corporation's appeal, while giving its own reasons (para 71).

Status: Bombay High Court judgment dated 03.04.2024 in Writ Petition No. 3283 of 2019 upheld; Civil Appeal of the Corporation dismissed; Corporation to comply with the High Court's directions within two months (paras 2, 71).

Headnote: Additional Amenity TDR Under Section 126(1)(b) MRTP Act

Maharashtra Regional and Town Planning Act, 1966 – Sections 2(2), 125 and 126(1)(b) – Development Control Regulations, 1991 – Regulation 34 and Appendix VII – Development Control and Promotion Regulations, 2034 – Constitution of India – Article 300A – Transferable Development Rights – Additional amenity TDR for development of garden on surrendered land – Condition in LOI, undertaking and maintenance agreement not to claim amenity TDR – Waiver – Contracting out of statute – Delay and laches – Applicable regulations.

Held: (i) Section 126(1)(b) of the MRTP Act provides a two-fold compensation: FSI or TDR against the area of land surrendered and, in addition, FSI or TDR against the development or construction of an amenity on that land; a garden is an amenity under Section 2(2) of the MRTP Act and Regulation 2(7) of the DCR, 1991 (paras 20, 23–24).

(ii) Section 126(1)(b) is a manifestation of Article 300A; once fair compensation is prescribed by statute, no deprivation of land without strict compliance is permissible, and following Godrej & Boyce I no further conditions derogating from the landowner's statutory rights may be imposed (paras 41, 43–44).

(iii) The LOI projected the disclaimer of amenity TDR as a pre-condition for the grant of TDR for the land; the Corporation could not conjure such a pre-condition, and the facts did not show a voluntary and intentional waiver (paras 47, 49).

(iv) Given the inherent imbalance of bargaining power once land is reserved, an agreement by which the landowner purportedly gives up statutory rights pales into insignificance; the authorities could not contract out of the statutory conditions for compensation (para 51).

(v) The maintenance of the garden on adoption basis had nothing to do with the statutory right to compensation, as the Corporation itself had pleaded before the High Court; the High Court erred in treating the maintenance agreement as being in lieu of amenity TDR (paras 55–57).

(vi) The right to compensation crystallised on surrender of the land, so the DCPR, 2034 was no bar; following Kukreja Construction, delay and laches cannot defeat a claim for statutory compensation, and Century Textiles, which concerned a challenge to the acquisition itself, was distinguishable (paras 58, 60–62, 65–66).

(paras 19–71)

Case Details: Brihanmumbai Municipal Corporation v. Vijay Nagar Apartments (2026 INSC 517)

Final Outcome: Civil Appeal dismissed; High Court judgment upheld for separate reasons; Corporation to comply with the High Court's directions within two months.

Case: Brihanmumbai Municipal Corporation and Ors. v. Vijay Nagar Apartments and Ors.

Neutral Citation: 2026 INSC 517

Case No.: Civil Appeal No. ___ of 2026 (arising out of SLP (C) No. 11541 of 2024)

Court: Supreme Court of India (Civil Appellate Jurisdiction) – Reportable

Date of Decision: 20 May 2026

Bench: Justice J.K. Maheshwari (author) and Justice Atul S. Chandurkar

Relevant Acts & Sections: Maharashtra Regional and Town Planning Act, 1966 – Sections 2(2), 125 and 126 (pre-2015 amendment); Development Control Regulations for Greater Mumbai, 1991 – Regulations 2(7) and 34, Appendix VII (VII-A); Development Control and Promotion Regulations, 2034; Constitution of India – Article 300A

Impugned Order: Judgment dated 03.04.2024 of the High Court of Judicature at Bombay in Writ Petition No. 3283 of 2019, setting aside the Corporation's Rejection Order dated 05.11.2019 and directing grant of additional amenity TDR (paras 2, 14–15)

Counsel: Mr. Dhruv Mehta, Senior Advocate, for the Corporation; Mr. Mukul Rohatgi and Mr. Pravin Samdani, Senior Advocates, for the Landowner (paras 16–17)

Source: Supreme Court of India

Key Holdings of the Supreme Court

• Under Section 126(1)(b), the landowner is entitled both to TDR for the land surrendered and to additional TDR for the amenity developed on it; a garden is an amenity (paras 20, 23–24, 26).
• A condition in the LOI, undertaking or maintenance agreement not to claim amenity TDR cannot override the statutory scheme and is not a waiver (paras 43–44, 49, 51).
• The right to maintain the garden on adoption basis was not a substitute for amenity TDR; the High Court's reasoning on this point was rejected (paras 53–57).
• The right to compensation crystallised on surrender of land in 2002; the later DCPR, 2034 does not defeat it (para 58).
• Delay and laches cannot defeat a claim for fair statutory compensation under Section 126(1) (paras 62, 65–66).
• The Corporation could not raise, at the fag end, a new plea that the garden was not an amenity, and alleged misuse of the garden does not affect the statutory right (paras 68–70).

Brief Facts of the Case

Lands admeasuring 98,369.1 sq. mts. at Chembur, then owned by the Landowner (a partnership firm and one of its partners), were reserved for a garden in the Development Plan notified on 04.03.1994 under the MRTP Act, with a stipulation that the landowners would develop the garden and hand it over to the Corporation (paras 3–4).

On the Landowner's application dated 06.07.2001 under Section 126(1)(b), the Corporation issued an LOI dated 13.12.2001 for grant of a Development Rights Certificate, requiring the Landowner to develop the garden, maintain it for 20 years and not claim any amenity TDR. The Landowner gave an undertaking on 10.01.2002 in the same terms, and a Maintenance Agreement dated 27.11.2002 allowed it to maintain the garden on adoption basis from 2002 to 2022 without claiming amenity TDR (paras 6–8, 10).

Possession was handed over in 2002 and TDR for the land was released between February 2002 and February 2003. Following Lokayukta proceedings, the Corporation demanded possession of the garden on 14.03.2016, and the Landowner handed it over on 02.06.2016. The DCR, 1991 was superseded by the DCPR, 2034 in 2018 (paras 9, 11–13).

The Landowner claimed additional amenity TDR on 04.04.2019. The Corporation rejected it on 05.11.2019 citing 17 years' delay, the absence of such a provision in the DCPR, 2034, and the terms of the LOI, undertaking and Maintenance Agreement. The High Court allowed the writ petition, and the Corporation appealed (paras 14–15).

Issues Before the Supreme Court

1. Whether the claim for additional amenity TDR was barred by delay and laches (para 18.1).
2. Whether the Landowner had waived its right to additional amenity TDR under Section 126 of the MRTP Act in view of the LOI, Undertaking and Maintenance Agreement (para 18.2).

Court's Findings and Reasoning

Scheme of Section 126(1)(b) (paras 20–26): The provision allows acquisition of reserved land by granting the owner FSI or TDR against the land surrendered and, in addition, against the amenity developed at his cost. The Court noted that TDR, issued as a DRC, is a tradeable asset and a unique form of compensation distinct from cash or acquisition proceedings.

Earlier rulings (paras 27–38): The Court reviewed Godrej & Boyce I, Yeshwant Jagannath Vaity, Natvar Parikh, Godrej & Boyce II and Kukreja Construction, and observed that the Corporation had raised and re-raised contentions already negatived by the Court more than once.

No waiver (paras 41–49): The compensation under Section 126(1)(b) engages Article 300A, and expropriatory statutes must be strictly construed. Waiver requires an intentional relinquishment of a known right. Here the reservation was a unilateral act of the State, the Landowner had limited options, and the LOI made the disclaimer of amenity TDR a requirement for the grant of TDR for the land. What cannot be done directly cannot be done indirectly.

Unequal bargaining power (paras 50–51): Relying on Kazi Moinuddin Kazi Bashiroddin, the Court preferred the view that advances justice. Even though the Landowner was a developer, there was an inherent imbalance once land was reserved, and the authorities had no occasion to negotiate a new mechanism of compensation in derogation of the statute. Reliance on Rajasthan State Industrial Development & Investment Corpn. was rejected.

Maintenance not a substitute (paras 52–57): The Corporation's own counter affidavit before the High Court pleaded that TDR entitlement and adoption of the garden were two separate transactions. The Court held that the High Court erred in treating the maintenance agreement as being in lieu of amenity TDR, and rejected the argument that the right to compensation was substituted by the right to maintain the garden. It also held that waiver had in fact been pleaded by the Corporation, contrary to the High Court's finding (para 45).

Applicable regulations (para 58): T. Vijayalakshmi had no application; the right to compensation crystallised on the day the land was surrendered, as held in Apurva Natvar Parikh.

Delay and laches (paras 59–66): Following Godrej & Boyce II, Kukreja Construction and Ultra-Tech Cement, compensation determined as FSI or TDR is payable even without a representation, and a duty lies on the State to pay. Century Textiles was distinguished because it concerned a challenge to the acquisition itself after 61 years. The High Court rightly relied on Sukh Dutt Ratra on continuing cause of action.

Nature of the amenity (paras 67–70): The plea that the garden was not an amenity was not taken in the Rejection Order or the counter affidavit, and was contrary to the record, since the Corporation itself certified the garden and made its development a pre-requisite. Any misuse of the garden may be addressed under the Maintenance Agreement but does not affect the statutory right.

Final Outcome and Directions

• The Corporation's appeal is dismissed; the High Court's judgment is not interfered with, though for separate reasons (para 71).
• The Corporation shall comply with the directions issued by the High Court within two months (para 71).
• Remedies permissible in law may be taken in respect of the Maintenance Agreement, independently of the statutory compensation (para 70).
• All interlocutory applications, if any, disposed of (para 71).

Legal Principle Laid Down

Compensation under Section 126(1)(b) of the MRTP Act, comprising TDR for the land surrendered and additional TDR for the amenity developed on it, is a statutory entitlement rooted in Article 300A. A planning authority cannot, by an LOI, undertaking or agreement, make the surrender of one part of that compensation a pre-condition for the other, and such a condition does not amount to waiver. The right crystallises on surrender of the land, and delay and laches cannot defeat a claim for fair statutory compensation (paras 43, 49, 51, 58, 62, 66).

Precedents Relied Upon

• Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra, (2009) 5 SCC 24 – Relied upon – additional TDR measured by area; no conditions in derogation of statutory rights. Discussed at paras 28–30, 43–44.
• Municipal Corpn., Greater Bombay v. Yeshwant Jagannath Vaity, (2011) 11 SCC 88 – Relied upon – waiver argument rejected. Discussed at paras 31–32, 44.
• Godrej & Boyce Mfg. Co. Ltd. v. Municipal Corpn., Greater Mumbai, (2023) 15 SCC 110 – Relied upon – no abandonment while the right was in suspended animation. Discussed at paras 35–36, 60.
• Kukreja Construction Company v. State of Maharashtra, (2024) 14 SCC 594 – Followed – delay and laches cannot defeat a claim for additional TDR. Discussed at paras 37, 44, 60, 62, 66.
• Kolkata Municipal Corpn. v. Bimal Kumar Shah, (2024) 10 SCC 533 – Relied upon – sub-rights under Article 300A, including fair compensation. Discussed at para 42.
• State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 – Relied upon – waiver is intentional relinquishment of a known right. Discussed at para 46.
• Ultra-Tech Cement Ltd. v. Mast Ram, (2025) 1 SCC 798 – Relied upon – compensation payable without delay. Discussed at para 61.
• Municipal Corpn., Greater Mumbai v. Century Textiles & Industries Ltd., (2025) 3 SCC 183 – Distinguished – concerned a belated challenge to the acquisition itself. Discussed at paras 64–65.

Important Paragraphs of the Judgment

Verbatim extracts from the judgment. For the full text, refer to the judgment PDF below.

Para 43: "The plea that the Landowner had surrendered its right to claim additional amenity TDR under Section 126(1)(b) of the MRTP Act against the construction or development of amenity cannot be countenanced or sustained."

Para 49: "The statutory right of the Landowner under Section 126(1)(b) being two-fold as discussed above, the Corporation could not have conjured a pre-condition for the Landowner to abjure part of the compensation in order to receive the other part."

Para 51: "There was no occasion for the authorities to contract out of the statutory conditions for payment of compensation."

Para 56: "The maintenance of a garden on adoption basis has nothing to do with the statutory rights of the Landowner for compensation accruing under Section 126(1)(b) of the MRTP Act."

Para 58: "The right to fair compensation against acquisition of land crystalized on the day when the land was surrendered by the Landowner as observed by the High Court in its judgment in Apurva Natvar Parikh (supra) which we believe is the right view in the matter."

Para 65: "Distinction must be drawn between delay and laches caused in challenging the process of land acquisition itself on one hand and delay and laches caused in seeking fair statutory compensation on the other."

Practical Impact of the Ruling

• For landowners and developers: A clause in an LOI or agreement disclaiming amenity TDR does not bar a later claim under Section 126(1)(b) (paras 49, 51).
• For planning authorities: Conditions beyond the statute cannot be imposed when accepting surrender of reserved land, and pleas inconsistent with their own affidavits will not be entertained (paras 51, 56, 68).
• On limitation: Claims for statutory TDR compensation are not defeated by delay, unlike belated challenges to the acquisition itself (paras 65–66).
• On regulations: Entitlement is judged by the regulations in force when the land was surrendered, not when the claim is made (para 58).

FAQs on Additional Amenity TDR Under the MRTP Act

1. What did the Supreme Court decide in Brihanmumbai Municipal Corporation v. Vijay Nagar Apartments?

It dismissed the Corporation's appeal and upheld the High Court's direction to grant additional amenity TDR for the garden developed on surrendered land, directing compliance within two months (para 71).

2. What compensation does Section 126(1)(b) of the MRTP Act provide?

FSI or TDR against the area of land surrendered and, in addition, FSI or TDR against the development or construction of an amenity on that land at the owner's cost (paras 20, 24).

3. Can a landowner waive amenity TDR by signing an undertaking?

Not in these circumstances. The Court held that the disclaimer was imposed as a pre-condition, there was no voluntary and intentional waiver, and authorities cannot contract out of the statute (paras 49, 51).

4. Does a 17-year delay bar the claim for additional TDR?

No. Following Kukreja Construction, delay and laches cannot defeat a claim for fair statutory compensation under Section 126(1) (paras 62, 66).

5. Do the DCPR, 2034 apply to a claim made in 2019?

No. The right crystallised when the land was surrendered in 2002, so T. Vijayalakshmi did not apply (para 58).

Keywords: 2026 INSC 517, Brihanmumbai Municipal Corporation v. Vijay Nagar Apartments, additional amenity TDR, Section 126(1)(b) MRTP Act, Transferable Development Rights, DCR 1991, Appendix VII, DCPR 2034, Article 300A, waiver, delay and laches, Godrej & Boyce, Kukreja Construction, garden reservation, Justice J.K. Maheshwari, Justice Atul S. Chandurkar, Supreme Court judgment

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Download Judgment PDF – Brihanmumbai Municipal Corporation v. Vijay Nagar Apartments

Judgment PDF: 2026 INSC 517 – Brihanmumbai Municipal Corporation & Ors. v. Vijay Nagar Apartments & Ors. (Civil Appeal No. ___ of 2026) – Download Judgment PDF

Source: Supreme Court of India (official website).