Case Note & Summary
The High Court allowed a Writ Petition challenging a Trial Court order that had directed impleadment of the Petitioners (owners of adjoining land) as Defendants in a suit concerning ownership of suit land -- The Plaintiff claimed ownership of suit land from which Transferable Development Rights (TDR) were generated and utilized on the Petitioners' adjoining land -- The Plaintiff sought to implead the Petitioners and claim rights in flats constructed on their land using the TDR -- The High Court held that TDR is not immovable property and its utilization on another land does not create ownership rights in that land for the owner of the original land -- The Petitioners were not necessary parties to the suit as they had no concern with the suit land -- The Trial Court's order was set aside as it would cause prejudice and delay -- The High Court emphasized that the Plaintiff's remedy, if any, was to claim monetary value of the TDR, not ownership rights in flats on adjoining land
Headnote
The High Court of Judicature at Bombay, in its Civil Appellate Jurisdiction, heard a Writ Petition under Article 227 of the Constitution of India challenging an order dated 16 February 2023 passed by the 7th Joint Civil Judge Senior Division, Thane -- The Trial Court had allowed an application under Order I Rule 10 read with Order VI Rule 17 and Section 151 of the Code of Civil Procedure, 1908 (CPC), directing impleadment of the Petitioners as Defendants and permitting amendment of the Plaint -- The Plaintiff claimed ownership of suit land (Survey No. 29/6) through a Conveyance Deed dated 20 September 1990 and had filed Special Civil Suit No.579 of 2010 seeking declaration of ownership -- Defendant No.9, who also claimed ownership of the suit land, had surrendered part of it to Thane Municipal Corporation, generating Transferable Development Rights (TDR) -- This TDR was utilized on adjoining land (Survey Nos.25/1, 25/2, 29/8) owned by the Petitioners, where Defendant No.9 constructed flats -- The Plaintiff sought to implead the Petitioners and claim rights in flats constructed on their land using TDR from the suit land -- The High Court held that TDR is not immovable property but represents development potential that can be monetized -- Loading TDR on adjoining land does not transfer ownership rights from the suit land to that land -- The Petitioners, as owners of adjoining land, were not necessary parties to the suit concerning ownership of the suit land -- The Trial Court's order was set aside as it would cause prejudice to the Petitioners and delay the suit -- The Petition was allowed, and the impugned order was quashed and set aside
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Issue of Consideration: Whether loading of TDR generated out of suit land on adjoining land would entail impleadment of owner of such adjoining land to the Suit -- Whether mere loading of TDR arising out of suit land on adjoining land would entitle Plaintiff to claim reliefs in respect of flats constructed on adjoining land on which the TDR is loaded
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Final Decision
The High Court allowed the Writ Petition -- The impugned order dated 16 February 2023 was quashed and set aside -- The Trial Court was directed to proceed with the suit without the Petitioners as parties -- No order as to costs
