The judgment established the importance of majority consent for construction in open spaces and emphasized the public interest in resolving water supply issues.

JUDGMENT

S. V. Gangapurwala, J. - The petitioner seeks directions against the respondents prohibiting them from carrying out work of Overhead Water Tank Reservoir in the open space of the layout in land Gut No.165/1, 165/2 and 171/5 at village Harsul, Taluka and District Aurangabad.

2. Mr. Bajaj, learned Advocate for the petitioner submits that the petitioner is owner and purchaser of Plot Nos. 1 to 11 of the layout carved out of Gut No. 165/1, 165/2 and 171/5 at village Harsul, Taluka and District Aurangabad under registered Sale Deed dated 19.07.2000. Plot Nos. 6 to 11 purchased by the petitioner are adjacent to the open space. The open space of the layout is handed over to respondent no. 2 - Aurangabad Municipal Corporation by the Developer / owners under registered Relinquishment Deed dated 13.09.2001. The petitioner noticed construction activity over the open space attached to his Plot Nos. 6 to 11. Upon enquiry the petitioner got the knowledge that respondent no. 2 through respondent no. 3 has undertaken the project of water supply to Aurangabad city and are constructing water reservoir tanks for distribution of water to nearby area. According to the learned Advocate, utility and value of the plots adjacent to the open space would diminish by construction of water reservoir tank.

3. The learned Advocate submits that respondent no. 2 / Corporation is merely trustee and custodian of the open space. The open space is relinquished in it's favour for maintenance and benefit of the plot holders of the layout. The open space in the layout is maintained for the residents of the said layout. Respondent no. 2 / Corporation does not have authority to deviate the use of the plot for any other purpose than for the beneficial use and enjoyment of the plot holders. The learned Advocate submits that the ownership of the open space vests with the owner. The learned Advocate relies on the Judgment of the Division Bench of this Court in case of Kishor Sharad Borawake and another Vs. State of Maharashtra and others,2019 SCCOnLineBom 1193 and another Judgment of the Division Bench of this Court dated 06.05.2014 in Writ Petition No. 5179 of 2003 with connected writ petition. The learned Advocate submits that without acquisition the respondents do not possess any authority to undertake the project of construction of Overhead Water Tank Reservoir. The learned Advocate relies on the Judgment of the Division Bench of this Court in Writ Petition No. 461 of 1994 dated 23rd & 27th September, 2010. The learned Advocate submits that when power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. To buttress his submissions, the learned Advocate relies on the Judgment of the Ramchandra Keshav Adke (Dead) by Lrs. and others Vs. Govind Joti Chavare and others,1973 1 SCC 559.

4. Mr. Bajaj, the learned Advocate further submits that it is erroneous on the part of the respondent to contend that the selection of the open space as the site for carrying out work of Overhead Water Tank Reservoir is a part of sanctioned scheme. The said site is not reflected in the sanctioned scheme nor in the drawing prepared for implementation of the scheme. The Unified Development Control and Promotion Regulations for Maharashtra State came to be sanctioned and published for the first time on 02.12.2020 (hereinafter referred to as UDCPR-2020), as such the selection of open space as a site cannot be said to be on the basis of the regulations. The respondents to oblige and protect the third party interest in whose land the construction was proposed is now shifted to the open space of the private layout. The said act is arbitrary and violative of Article 14 of the Constitution of India. The UDCPR-2020 do not permit any construction over the open space of a private layout for public purpose. The Regulation 3.4.7 clearly states that construction in the open space will be permitted only for the purpose of benefit of the owners of the plot of