28 Sep 2023 4:49 AM GMT
The Supreme Court has that a condition imposed by the Government that the land owner should handover a part of land free of cost for public utility purpose in return of the permission granted for converting the nature of the use of the land cannot be held illegal.
Holding so, the Court set aside the Bombay High Court’s order restricting the use of ‘amenity space’ which was allotted to the Shirdi Nagar Panchayat (Municipal Council) in return of the permission granted for converting a land which was reserved for a ‘non-residential’ for ‘residential’ purpose. However, after a plea was raised that the land consists of trees which are aged about 100 years or more, the court allowed the landowners to make representation to the Council for transfer of an alternative land.
The bench of Justices B.R. Gavai and S.V.N. Bhatti remarked that the ‘amenity space’ was agreed to be allotted to the Municipal Council on the basis of the conditions imposed by the State of Maharashtra while converting the land from a ‘No Development Zone’ to ‘Residential Zone’, as per Government Notification dated 18th August 2004. The landowners, the court said, had not only accepted the said condition but acting on the same, they had entered into agreements with the Municipal Council transferring the ‘amenity space’ in favour of the latter.
The court thus quashed the Bombay High Court’s order restricting the Municipal Council from changing the use of the land reserved as ‘amenity space’ except for the beneficial enjoyment of the residential plot holders.
The bench, however, allowed the alternative plea of the landowners/plot holders that, since the land reserved for ‘amenity space’ consisted of trees aged about 100 years or more, they be permitted to retain the ‘amnesty space’, in lieu of transferring another piece of land.
“We find the said request to be reasonable. We, therefore, permit the landowners/plot holders to make a representation to the Municipal Council for providing/transferring another piece of land on the same road having the same or near about the same area. On such an application being made, the Municipal Council would consider the same in accordance with law,” the court said, adding that it was passing the said directions under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older.
Brief Facts:
On 18th August 2004, the Government of Maharashtra issued a notification converting the respondent- land owners’ land from a ‘No Development Zone’ to ‘Residential Zone’, subject to the Municipal Council receiving 10% compulsory ‘open space’ and 10% as ‘amenity space’, free of charge.
Thereafter, the landowners sought permission from the Town Planning Authority for the development of a plot on the land, and the same was granted. The landowners divided/converted the land into 65 plots and sold the same to various plot holders.
Later, in 2006, the landowners executed an agreement with the Municipal Council, assigning and giving possession of certain land as ‘open space’ and as ‘amenity space’, in accordance with the 2004 Government Notification. The name of the Municipal Council was also entered in the revenue records with respect to the ‘amenity space’ and ‘open space’ allotted to them.
In 2012, when the Municipal Council sought possession of the property allotted to them, the landowners filed a civil suit seeking perpetual injunction along with an application seeking a temporary injunction against the Municipal Council. The application seeking temporary injunction was rejected by the trial court. The same was upheld by the District Court in appeal.
During the pendency of the civil suit, the landowners approached the Sub-Divisional Officer (SDO) challenging the mutation entry by which the Municipal Council was inducted as owner of the ‘open space’ and ‘amenity space’ in the revenue record. Vide order dated 12th August 2015, the SDO rejected the plea of the landowners. The same was upheld by the Additional Collector and the Divisional Commissioner.
The landowners, thereafter, filed a writ petition before the High Court challenging the Government Notification dated 18th August 2004. After the Municipal Council passed a resolution to undertake some construction in the plot surrendered by the landowners, the plot holders also filed a petition before the High Court challenging the 2004 Notification.
The High Court, by judgment and order dated 4th July 2019, held that the writ petition filed by the landowners was not maintainable on account of delay. However, it partly allowed the writ petition filed by the plot holders. The High Court restricted the Municipal Council from changing the use of the land of ‘open space’ and ‘amenity space’ except for the beneficial enjoyment of residential plot holders. It further quashed and set aside the resolution dated 23rd January 2018 of the Municipal Council to the extent it resolved to construct an indoor game hall, multi-purpose meeting hall, and swimming pool on the open space/amenity space.
Supreme Court’s Analysis:
Dealing with the writ petition filed by the landowners, the top court remarked that apart from there being a delay of about 14 years in approaching the High Court, the writ petition was also liable to be dismissed in view of the doctrine of election.
“It has been consistently held by this court in a catena of judgments that if a party has more than one remedy and if he chooses one of them, he is estopped from taking recourse to the other remedy,” said the court. The writ petition filed by the landowners was also liable to be dismissed invoking the principle of approbate and reprobate, the court added.
Referring to the facts of the case, the top court observed that it was on the basis of the 2004 Notification that the landowners sought permission from the Town Planning Authority for the development of the land, and the same was granted.
The court noted that on 12th January 2007, the Municipal Council also sanctioned a layout in favour of the landowners, showing the lands reserved for ‘internal road’, ‘open space’, and ‘amenity space’. Further, the landowners acting on the basis of the said sanction plan converted the layout into 65 plots and sold the same to various plot holders, the court took note.
The bench remarked that though the landowners had executed documents giving possession to the Municipal Council, however, when the Municipal Council sought physical possession in 2012, the landowners filed civil suit seeking permanent and temporary injunction against the Council. Parallelly, proceedings challenging mutation of the Municipal Council in the revenue records were also in progress.
The court concluded that having taken advantage of the Government Notification dated 18th August 2004 as well as the sanctioned plan, on the basis of which the plots were developed on the land, the landowners approached the High Court challenging the 2004 Government Notification only after failing to get the relief in the civil suit and the Revenue proceedings. The top court thus remarked that the High Court had, therefore, rightly found no merit in the petition of the landowners.
The court added that the plot holders also did not stand on a better footing.
“They had purchased the plot knowing very well that in the sanctioned layout, 10% of space was to be reserved as ‘open space’ and 10% of the land was to be handed over to the Municipal Council as ‘amenity space’. They were very well aware that 10% of the land would be transferred to the Municipal Council by the landowners free of cost and that the land would vest in the Municipal Council. Knowing this fully well, they entered into transactions with the landowners,” the court said.
Thus, the court said the writ petition filed by the plot holders challenging the Notification after a period of almost 14 years, ought to have been dismissed on the grounds of delay and laches.
The top court, however, said that the High Court was justified in holding that the ownership of the ‘open space’ would vest in the owners of the plot in view of the relevant Development Control Regulations (DCR). The High Court was also right in holding that insofar as the ‘open space’ is concerned, it was required to be kept as ‘open space’ for use by the plot holders, the court added.
However, insofar as the ‘amenity space’ was concerned, the Supreme Court said the High Court had mixed it with the ‘open space’.
The court said the ‘amenity space’ was agreed to be allotted to the Municipal Council on the basis of the conditions imposed by the State of Maharashtra while converting the land- which was reserved for a ‘non-residential’ purpose- to a ‘residential’ purpose. The landowners, the court said, not only accepted the said condition but also acting on the basis of the same entered into more than one agreement with the Municipal Council transferring the ‘amenity space’ in favour of the Municipal Council.
The Supreme Court referred to its decision in Narayanrao Jagobaji Gowande Public Trust vs State of Maharashtra and Ors, (2016) 4 SCC 443, where it was held that, if Government gives the benefit of development of land with permission to sub-divide the same and use it for commercial purpose and, in turn, requires the landowner to handover part of land free of cost for public utility purpose, such a clause cannot be held to be illegal.
Thus, the court remarked that the High Court had grossly erred in allowing the writ petitions.
“We, therefore, allow the appeals and quash and set aside the impugned common judgment and order dated 4th July 2019 passed by the High Court. The writ petition filed by the plot holders also shall stand dismissed.”
Case Title: SHIRDI NAGAR PANCHAYAT vs KISHOR SHARAD BORAWAKE AND OTHERS
Citation : 2023 LiveLaw (SC) 830
Counsel for the Appellant: Mr. Sanjay Kharde, Adv. Mr. Satyajeet Kharde, Adv. Mr. Sunil Kumar Verma, AOR
Counsel for the Respondent: Mr. Hitendra Nath Rath, AOR M/S. S-legal Associates, AOR Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Shashibhushan P. Adgaonkar, AOR Mr. Omkar Jayant Deshpande, Adv. Mrs. Pradnya Shashibhushan Adgaonkar, Adv. Mr. Rana Sandeep Bussa, Adv.
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