Bombay High Court
Vrajlal Jinabhai Patel, Since ... vs State Of Maharashtra And Ors. on 29 August, 2002
Bench: B Marlapalle, D Karnik
Citation;2003(3)MHLJ215,Bom,2003(4)ALLMR299, 2003(105(1))BOMLR223,
1. The petitioner was the owner of the land bearing S. No. 477 of village Mahrum taluka, District Jalgaon, admeasuring 7 acres and 28 gunthas. The petitioners prepared a lay out of the said land which was sanctioned by the Chief Officer, Jalgaon Borough Municipality on 5th/6th March, 1965, under Section 16 of the Bombay Town Planning Act, 1954. According to the lay out, the total land was divided into 42 buildable plots, roads and certain open space meant for common use and enjoyment of the said 42 plots. It appears that out of the said 42 plots, the petitioner has sold some while some plots bearing Nos. 29 to 35, together with some part of the open space, were reserved subsequently for the purpose of primary school and playground under the development plan prepared under the Maharashtra Regional and Town Planning Act, 1966. It is not disputed that the reserved plots and part of the open space, which was reserved, have since been acquired and the award has been passed.
2. The respondent No. 2 -- Municipal Council, as alleged by the petitioner, without any authority of law and without following any procedure established by law, purportedly and illegally claimed that the open space under the lay out of the land bearing S. No. 477 stood vested and transferred in it; the respondent No. 2 thereafter passed a Resolution No. 85 dated 16th April 1988 and purportedly allotted the open space to the respondent No. 6 and permitted it to construct a building to the extent of 1/10th area of the open space ostensibly for the use as a Library and Auditorium. An agreement was also entered into between the President of the 6th respondent and the Chief Officer of the respondent No. 2 regarding the allotment and transfer of the open space in the lay out in May 1988 or thereabout. The petitioner thereafter approached this Court by filing Writ Petition No. 701/90 challenging the said action. This Court, by order dated 2nd July 1990 allowed the said writ petition and directed the respondent No. 2 to give hearing to the petitioner about his grievances within four weeks and then pass an appropriate order. Thereafter, after hearing the petitioner, the Chief Officer of the respondent No. 2 passed an order dated 20th July 1990 declaring that the open space in S. No. 477 stood vested in the Municipal Council. This gave rise to the present petition in which the petitioner challenges the actions of the respondent No. 2.
3. Shri Joshi, the learned Counsel for the respondents No. 2 and 3 --Municipal Council invited our attention to bye law No. 14 of the Standardised Building Bye-Laws and Development Control Rules for "A" Class Municipal Councils of Maharashtra framed by the Government of Maharashtra in exercise of the powers conferred by Sub-section (1) of Section 323 of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (for short the Act), and which are stated to be adopted/applied by the Municipal Council. Clauses 14.2 and 14.3 thereof read as under : "14.2. Open Spaces -- In any layout or sub-division of land admeasuring 0.4 Ha. or more for residential purpose and 0.8 Ha. or more for industrial purpose 10 per cent of the total area of land shall be reserved for open space which shall as far as practicable be located in one central place. Out of such open spaces, an area to the extent of 10 per cent may be allowed to be constructed by a Group Floor Structure for the purpose of allied public use, such as kindergarten, library, club hall, pavilion etc. Location of such structure shall be in one corner of the open space. "14.3. -- Whenever called upon by the Planning Authority to do so, under provisions of Section 183 of MM Act areas under roads and open space in Bye-law Nos. 14.1 and 14.2 shall be handed over to the Planning Authority after development of the same for which nominal amount (of Re. 1) shall be paid by the Planning Authority. In case of the owners who undertake to develop the open spaces for bona fide reasons as recreational community open spaces, the Authority may permit the owner to develop the open space unless the Authority is convinced that there is misuse of development of open spaces in which case the Authority shall take over the land."
4. Relying on these clauses and in particular Clause 14.3 Shri Joshi, learned Counsel for respondents No. 2 and 3 contends that the open space under the lay out automatically vests in the Municipal Council. He further contends that as the open space vests in the Municipal Council, it was entitled to allot the said open space to the respondent No. 6 for use in accordance with the said bye laws.
5. Shri Shah, the learned Senior Counsel for the petitioners, on the other hand, contended that the open space under the lay out does not and cannot vest in the Municipal Council and that the petitioner alone continued to be the owner of the said open space. It is not disputed that initially the petitioner was the owner of the entire land bearing S. No. 477 of which the said open space forms a part. The petitioner transferred most of the said plots and only two plots are presently retained by him. Rest of the plots are either sold or acquired, as mentioned above. It is undisputed that an area of land admeasuring more than 0.4 hectare cannot be developed and built upon unless a lay out is prepared. The land which is in excess of 0.4 hectare becomes buildable only after preparation of the lay out in which the owner is required to keep atleast 10% of the total area as reserved for open space and is also required to provide necessary approach roads. The open space is meant to act as lungs in the city and is for the use of all the plot holders in the lay out. Unless the 10% of the total lands is provided as an open space, the lay out is not sanctioned and without the lay out, no construction can be made. The title in the open space is not transferred from the petitioner to the Municipal Council merely on passing of the lay out. When, however, the petitioner transfers the plots in the lay out, the purchasers of the plots get a right to use in common with the original owner so long as he retains on or more plots -- the open space, because the plots in the lay out became buildable only on sanctioning of the layout. We are unable to agree with the contention of Shri Joshi that the ownership in the said open space is automatically transferred to the Municipal Council on passing of the lay out.
6. Shri Joshi, learned Counsel for the respondents No. 2 and 3, in the alternative, contended that under Rule 14.3, the area under the road and the open space was required to be handed over to the Planning Authority after development of the same for nominal amount of Re. 1/-. In the present case, admittedly the compensation of Re. 1/- was never offered. In fact, the very fact that the property is to be transferred on payment of compensation of Re. 1/- negatives the first contention of Shri Joshi, learned Counsel for the respondent No. 2, that on passing of the lay out the open space automatically vests in Municipal Council.
7. Rule 14 appears to have been framed in furtherance of Section 183 of the Act which relates to laying out or making of a new streets. It nowhere provides for the open spaces. Therefore, the power, if any, of acquiring the land under the streets is only contemplated under Section 183. Acquisition of open spaces is not contemplated under Section 183. Rule 14.3 which is a delegated legislation cannot, confer a power of acquisition of the open space under the lay out. Under Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law. The authority of law means by or under any law made by a competent legislature. No law made by the legislature was shown to us under which the ownership in the open space could be vested or transferred to the Municipal Council whether by payment of compensation of Re. 1/- or otherwise. In the circumstances, we reject the alternative contention of Shri Joshi that the open space under the layout would be vested in the Municipality on payment of compensation of Re. 1/-.
8. We accordingly allow the petition and made the Rule absolute to the extent of quashing the order dated 20th July 1990 passed by the 3rd respondent as well as the impugned Resolution bearing No. 477 dated 23rd November, 1990 and all consequential orders and actions passed/taken in pursuance thereof. In the facts and circumstances of the case, parties shall bear their own costs.
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