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2019 Supreme(Bom) 941
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S.V. Gangapurwala, A.M. Dhavale, JJ.
Kishor Sharad Borawake - Appellant
Vs.
State of Maharashtra - Respondent
Writ Petition No. 2486 of 2018, 3805 of 2018
Decided On : 04-07-2019
Amol K. Gawali, Adv., V.N. Patil Jadhav, Adv., V.D. Hon, Adv., A.V. Hon, Adv., P.S. Talekar, Adv.
Headnote:
OPEN SPACE - AMENITY SPACE - TRANSFER TO MUNICIPAL COUNCIL - CONDITION FOR SANCTIONING LAYOUT - MAINTAINABILITY OF ORDERS - DELAY IN CHALLENGING ORDERS - INTERPRETATION OF RELEVANT PROVISIONS OF MRTP ACT AND DEVELOPMENT CONTROL REGULATIONS - COURT'S ANALYSIS AND CONCLUSION - FINAL DECISION.
Fact of the Case:
Petitioners, original owners of the property, and plot holders purchased various plots from the original owners, challenged the orders passed by Municipal Council to transfer open space and space for amenity free of cost to it and consequential taking of possession free of charge as condition for sanctioning the layout. The orders were passed with a delay of around 12 years.
Finding of the Court:
The Court found that the condition imposed by the Municipal Council for transfer of open space and amenity space free of cost was illegal and unsustainable. The Court held that the open spaces are to be provided for the beneficial enjoyment of the plot holders and the amenity space belongs to the original owner. The Court further held that the Municipal Council cannot change the user of the open space and amenity space except for the purpose earmarked or for the purposes under Rule 2.9 of the Development Control Regulations.
Issues: 1. Whether the orders passed by the Municipal Council to transfer open space and space for amenity free of cost to it and consequential taking of possession free of charge as condition for sanctioning the layout were maintainable? 2. Whether the delay of around 12 years in challenging the orders affected the maintainability of the petitions? 3. Interpretation of the relevant provisions of the Maharashtra Regional and Town Planning Act (MRTP Act) and the Development Control Regulations.
Ratio Decidendi: 1. The condition imposed by the Municipal Council for transfer of open space and amenity space free of cost was illegal and unsustainable. 2. The open spaces are to be provided for the beneficial enjoyment of the plot holders and the amenity space belongs to the original owner. 3. The Municipal Council cannot change the user of the open space and amenity space except for the purpose earmarked or for the purposes under Rule 2.9 of the Development Control Regulations.
Final Decision: The Court partly allowed the writ petitions filed by the original owners and the plot holders. The Court set aside the condition imposed by the Municipal Council for transfer of open space and amenity space free of cost. The Court declared that the Municipal Council is only a custodian of the open space for the management of the same for the purposes for which those can be used and restrained it from changing the user of the land of open space and amenity space except for the beneficial enjoyment of residential plot holders/petitioners. The Court also quashed the resolution of the Municipal Council to construct indoor game hall, Multi-purpose meeting hall and swimming pool on open space/amenity space and the notice issued to the original owners claiming ownership of the open space and amenity space.
JUDGMENT :
A.M. Dhavale, J.
These petitions raise issue about the maintainability of the orders passed by Municipal Council to transfer open space and space for amenity free of cost to it and consequential taking of possession free of charge as condition for sanctioning the layout. There is delay of around 12 years in challenging the orders.
2. Heard learned Counsel Mr. Amol Gawali for the plot holders, Ms. Talekar for the original owners, Mr. V.D. Hon, Senior Counsel for Shirdi Nagar Panchayat and Mrs. V.N. Patil-Jadhav, Assistant Government Pleader for the State.
3. Rule. Rule is made, returnable forthwith. With the consent of the parties, the matters are finally heard at the admission stage.
4. Writ Petition No. 2486/2018 is filed by the original owners against the State, the Collector and the Shirdi Nagar Panchayat. Writ Petition No. 3805/2018 is filed by 10 petitioners, who have purchased various plots in the layout from the respondent Nos. 4 and 5, who are the petitioners in Writ Petition No. 2486/2018. The State, the Collector and Shirdi Nagar Panchayat are respondent Nos. 1 to 3. For the sake of convenience, the petitioners in Writ Petition No. 2486/2018 are hereinafter referred to as 'the original owners' and petitioners in Writ Petition No.3805/2018 are hereinafter referred to as 'the plot holders').
5. Learned Advocate Miss Talekar for the original owners argued as follows :-
Kishor Borawake and Swati Borawake, the petitioners, are original owners of the property bearing sub-survey No. 2, 4, 5, 7, 8, 9 of Survey No. 103 admeasuring 4 hector and 12R situated at Shirdi. A Development Plan at Shirdi was sanctioned on 15.12.1992, wherein the above land was shown in green zone. Shirdi Nagar Panchayat on 30.09.2000, proposed a modification to the final development plan so as to convert various lands including the above referred land from green zone to residential zone. Accordingly, the proposal was forwarded to the Government on 10.01.2003. Though, there was no recommendation for delivery of 10 % open space and 10 % amenity space to the Planning Authority, the Government by notification dated 18.02.2004 sanctioned the modification of the development plan and granted permission to convert the plots from development zone to residential zone subject to the condition that 10 % open space and additional 10 % space for amenity would be transferred to the Nagar Panchayat free of cost. On 10.04.2007, the Assistant Director, Town Planning Department granted technical approval to the layout plan of the original owners. Land of 4143.24 sq. mtrs. was earmarked for amenity space. Lands of 888.75 sq. mtrs. and 3244.52 sq. mtrs. were earmarked as open spaces and land of 6035.44 sq. mtrs. was specified for road in the lay out plan. As per the Government directions, the respondent No. 3 on 18.09.2007, communicated to the original owners that the approval would be granted subject to the petitioners executing agreement to provide total land of 14311.95 sq. mtrs. to Shirdi Nagar Panchayat free of cost and execute the possession receipt. Accordingly, on 18.02.2007, the approval of lay out plan was granted on fulfilling the condition. However, the original owners continued to enjoy the possession of these amenity spaces and open spaces where they were having 100 year old trees of chickoo and others. When there was threat to their possession, they filed regular civil suit No. 374/2012 for injunction simplicitor. The application for temporary injunction came to be rejected by the trial court and the Appeal before the First Appellate Court was dismissed. The original owners thereafter amended the suit and challenged the modification dated 18.02.2004 and the agreement and possession receipt dated 18.09.2007. The original owners had filed Writ Petition No. 10777/2015 and they felt that without challenge to the notification, agreement and possession receipts, there was no use in prosecuting the Writ Petition. Hence, it was withdrawn. On 22.02.2018, the ori
