Law Web: Whether Municipal Corporation can permit layout owners to use open spaces for further development?

Once such layout is finalized, if the development takes place, the

layout virtually becomes unalterable. The plot in such layout are

sold and are developed by individuals. The land reserved for

road and open spaces are utilized for such purposes and none

else. In an ideal case, the plot owners would form a cooperative

society and using contributed funds they would keep spaces for

recreation, clean and tidy and usable for recreation. They may

develop garden or play ground on such lands. The building bylaws also contemplated that such plots would be handed over to the Municipal Corporation so that they would not only protect

them but would also develop them as play grounds or gardens.

It is not only the plot holders in the locality but even outsiders

who would come in this locality would be entitled to use the land

for its designated purpose such as; road and open spaces for

recreation. In other words, right of user of this open spaces and

roads accrued to public at large. No one can interfere in such

right. In view of this also, the attempt of the Municipal

Corporation to allow the layout owners to use open spaces for

further development was inappropriate and illegal. The

resolution of the Municipal Corporation for the reasons above,

cannot be said to be lawful.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO. 5044 OF 1999

Vasantrao s/o Vinayakrao Deshmukh Vs Aurangabad Municipal Corporation

CORAM : A. V. NIRGUDE & V. L. ACHLIYA, JJ.

DATED : MARCH 5TH, 2015.

(PER A. V. NIRGUDE, J.)

1. As common issue is involved, these petitions are

disposed of by this common Judgment. For convenience, the

facts of writ petition No. 5044 of 1999 are taken into

consideration.

2. The facts leading to these Writ Petitions, in short, can

be summarized as under: -

Prior to 1981, Aurangabad town was governed by a

Municipal Council established under the provisions of the

Maharashtra Municipalities Act, 1965 which was 'A' class

Municipal Council. It had certain Development Control Rules

which inter alia provided that in case a land having area of more

than 0.4 hectare is proposed to be developed through a layout,

10% of the total area should be reserved as open space for

recreation. Accordingly, till 1982, said layouts with such

compulsory open space for recreation were sanctioned. On 3rd

December, 1982, significant change took place in respect of

Municipal Council of Aurangabad. In exercise of power provided

by Section 3 of the Bombay Provincial Municipal Corporations

Act, 1949 (herein after referred to as “BPMC Act” for the sake of

brevity), the Government of Maharashtra after previous

publication as required by the law, constituted and established

Aurangabad Municipal Corporation. The Government of

Maharashtra also prescribed boundaries of said Corporation.

Earlier the boundaries of Municipal Council of Aurangabad thus

changed and a larger area became Corporation area. The

Government of Maharashtra further declared that, on 8th

December, 1982, provisions of the BPMC Act would come into

operation in the city of Aurangabad and on the same day, the

State of Maharashtra appointed Shri. Tripathi as the

Administrator of the Municipal Corporation, for a period of one

year etc. On the same day, the Government of Maharashtra also

directed through a notification which is as follows:

BOMBAY PROVINCIAL MUNICIPAL CORPORATION

ACT, 1949.

No. AMC, 1082/207 (IV)-UD.2]. - Whereas, by

Government Notification, Urban Development

Department No. AMC. 1082/207 (i)-UD 21, dated the 3rd

December 1982, issued under sub-section (2) of section

3 of the Bombay Provincial Municipal Corporation Act,

1949 (Bom. LIX of 1949) (hereinafter referred to as “the

said Act”), the local areas which were previously

comprised in the whole of the municipal area of the

Aurangabad Municipal Council and also in a part of the

area of the Aurangabad Zilla Parishad have been

constituted to be the City of Aurangabad for the

purposes of the said Act, with effect from the 8th day of

December 1982 (hereinafter referred to as “the

appointed day”);

And Whereas, it is expedient to direct that all or

any of the appointments, notifications, notices, taxes,

orders, schemes, licenses, Permissions, rules, by-laws

or forms made, issued, imposed or granted in any area

of a specified Municipal Council included in the City as

aforesaid, under the Maharashtra Municipalties Act,

1965, or any other law and in force in that area

immediately before the appointed day, shall continue to

be in force throughout the area of the said City, for the

sake of having uniformity in all the area merging in the

said City;

Now, therefore, in pursuance of the provisions of

paragraph 5A in Part]' of Appendix IV to the said Act,

and of all other powers enabling it in this behalf, the

Government of Maharashtra hereby directs that, save

as otherwise provided in Section 129A or any other

provisions of the said Act, all the appointments,

notifications, notices, taxes, orders, schemes, licences,

permissions, rules, by-laws or forms made, issued,

imposed or granted in the Municipal area of the

Aurangabad Municipal Council, under the Maharashtra

Municipalities Act, 1965, or any other law and in force in

that area immediately before the appointed day, shall

in so far as they are not inconsistent with the provisions

of the said Act, continue to be in force throughout the

area of the said City, until they are superseded or

modified under the said Act or under any other law as

aforesaid, as the case may be.

Within few days thereafter, on 25th December, 1982,

the State of Maharashtra directed to the Municipal Corporation,

Aurangabad, vide a letter dated 21st December, 1982, to adopt

Standardized Building By-laws and Development Control Rules

and copy of which enclosed with the letter. They further

directed the Corporation that the corporation should submit a

proposal for modification of by-laws and development control

rules, if any, by following procedure under Section 37 of the

Maharashtra Regional and Town Planning Act, 1966 (in short

“MRTP Act”). It is a fact that, the Corporation thereafter started

implementing the Standardized Building By-laws and

Development Control Rules for permissions given for

development. The Standardized Building By-laws and

Development Control Rules provided that if a layout is proposed

of a land ad measuring more than 0.4 hectare, 15% of such land

should be reserved as open space for recreation. A significant

change thus came into force from December 1982. It is a fact

that, layouts of land ad measuring more than 0.4 hectare which

were submitted for sanction after December, 1982, were

sanctioned with 15% of the plot as open space for

recreation. It is also an admitted fact that, some of the land

owners were protected on the ground that, previously the

Municipal Council was permitting layouts with 10% of the land as

open space for recreation, nonetheless the Corporation

compelled all such owners of land to keep 15% of the land as

open space for recreation. It is also fact that, from December,

1982 till 1992, this practice prevailed. Hundreds of layouts were

sanctioned with the above mentioned condition. In June, 1983,

the Administrator issued a notice thereby calling objections to

the proposed building by-laws and development control rules.

The proposal for change in development control rules was

submitted to the Government in February, 1986 and on 17th

February, 1992, the Government sanctioned the amended

building by-laws and the development control rules. But, this

time they specifically mentioned that the proposal to change the

previous 10% for open space for recreation would not be

changed to 15%. In the meantime, some significant changes

took place in respect of open spaces for recreation left out in

various layouts all over the State as per the development control

rules that were applicable to most of the towns in Maharashtra

including Aurangabad. As per the development control rules,

after layout is sanctioned, the portions of land which are left out

for road would vest in the Corporation or Council as the case

may be for being developed as roads and for being provided

amenities as street lights, storm water drain etc. The open

spaces reserved for recreation were also transferred to

Corporation / Council for proper utilization and management. An

impression was created then that, the open spaces for recreation

thus were vested in Council / Corporation. After the Council /

Corporation believed that such open spaces stood vested in

them, they started transferring 10% of such open spaces to

certain public trusts with a condition that they would develop

that part of the open space for public purpose. But, the

Government noticed that number of public trusts to whom such

lands were handed over, misused this facility. Therefore, on 10th

June, 1996, the government issued a circular under Section 154

of MRTP Act, that, thenceforth, part of open spaces reserved for

recreation should be given for development only to the original

owner of the layout or to the Cooperative Housing Society

formed by the Plot Holders or to the Federation of Cooperative

Societies. The Government of Maharashtra also directed that,

whenever open spaces are transferred to Council / Corporation,

they would be entitled to transfer 10% of such land to the above

mentioned three parties. This Circular thus stopped Councils /

Corporations from giving away part of open spaces for recreation

to third parties.

3. As said above, in 1992, the Government sanctioned

revised building by-laws and development control rules where

10% of a piece of land subjected to layout would be reserved as

open space for recreation. Earlier in Municipal Corporations of

Aurangabad, several layouts were approved in which the owners

of the lands were asked to keep 15% of the land as open space

for recreation. In view of this change, number of owners of

layout land demanded to the Corporation that their layout

should be suitably changed for providing only 10% of the land as

open space for recreation. In other words, they wanted a

revised layout in which they would be permitted to sale 5% land

for development purpose. Due to their demand, the Corporation

took a policy decision and to give retrospective effect to building

bye-laws from 1992 and development control rules from 1982.

The Corporation, thereafter, passed a resolution in a General

Body Meeting of 19th December, 1998, that revision in layouts

would be permitted on certain conditions. One of the significant

conditions was that the owner of layout land should deposit with

them certain amount for getting permission to develop 5% land

of the layout for development. The petitioners in Writ Petition

No. 5044 of 1999, took a strong objection to such a resolution.

On 19th June, 1999, they sent legal notice to the Corporation and

the State of Maharashtra raising objection to the resolution

urging them to cancel the resolution and to keep the previous

layouts intact so that open spaces left out earlier would be

protected as open spaces, but the Corporation not only did not

pay any heed to the request, but also started entertaining

applications for revision of layouts. They permitted revision in

17 layouts and released some portion of open spaces for

development. Accordingly, some layout owners sold in open

market some plots of land. Some of them in turn started

development of the plots by getting building permission

sanctioned. Some of them started raising constructions on their

plots. In the meantime, Writ Petition No. 5044 of 1999 was filed

on 1st August, 1999 and within few days thereafter, this Court

directed the parties not to continue development on such plots.

On 15th February, 2000, this Court granted interim relief as

under: -

“Pending hearing and disposal of this Writ petition, the

execution and operation of resolution dated 19th

December, 1998 is stayed and the Corporation was

restrained on acting on the impugned resolution.”

In view of this order, further development on the

plots referred to above was stopped and we hope that the

concerned parties have not violated the order of this Court.

4. Municipal Corporation submitted reply to the petition

and opposed the petition filed by the petitioners justifying their

action and the impugned resolution.

5. The State of Maharashtra filed affidavit-in-reply

sworn by Deputy Director of Town Planning, Aurangabad

Division, Aurangabad. The deponent of the State of Maharashtra

stated that the resolution is not proper also because the

Corporation did not obtain the consent of all plot owners of

sanctioned layouts while giving permission for revised layouts.

Due to the interim order passed by this Court, several owners of

layout approached this Court by filing either applications seeking

intervention in Writ Petition No. 5044 of 1999 or by filing

independent petitions. They all supported the impugned

resolution passed by the Corporation. The contentions raised on

behalf of the Corporation as well as intervenors and layout

owners are as under: -

(1) Despite of the Government direction issued under

Section 154 of MRTP Act, vide letter dated 21st

December, 1982, the building by-laws and

development control rules of Aurangabad Municipal

Council were lawfully applicable till 1992.

(2) The layouts sanctioned between 1983 to 1992,

providing 15% open space for recreation were illegal

to the extent of 5% difference.

(3) The land within a layout reserved for open space

belonged to the Corporation and, therefore, they

could deal with it as per their wish and so the

resolution is not illegal.

6. The questions that arose for our consideration in

these petitions are as under: -

(i) Whether the layouts sanctioned after December,

1982 till 1992, providing 15% open space for

recreation were lawful?

(ii) Whether the resolution of the Corporation is

lawful?

7. The learned Counsel for the Corporation as well as

intervenors and layout land owners etc., took us through the

facts of this case and the law that was applicable to the facts of

this case in detail. They tried to show that, firstly the

Government had no power under Section 154 of the MRTP Act

for directing the Corporation to adopt 'Standardized By-laws and

Development Control Rules' in 1982, and so whatever was done

pursuant to such illegal direction, was unlawful and had caused

wrongful loss to their clients. We have given gist of Government

notification issued by Urban Development Department dated 3rd

December, 1982, through which Municipal Council of

Aurangabad is converted into a Municipal Corporation with an

enlarged territory. This was issued under the provisions of BPMC

Act. We would now quote the direction given by letter dated 21st

December, 1982, verbatim in this judgment.

“To,

The Administrator,

Aurangabad Municipal Corporation,

Aurangabad.

Subject : - Maharashtra Regional and Town Planning Act,

1966 Standardized Building regulations and Development

Control Rules for Municipal Corporation.

Sir,

The erstwhile Aurangabad Municipal Council has

been elevated to the status of Corporation. Before its upgrading

the said Municipal Council has been controlling development

activities under the development plan and development control

rules framed by it under the Maharashtra Regional and Town

Planning Act, 1966. In para 4 of the Government Resolution

U.D.&P.H.D. No. TPS 3678/814-B/UD.5 dated 16th July, 1980 (copy

enclosed) directives have been issued to all 'A' class Municipal

Councils to adopt the Standardized Building Bye laws and

Development Control Rules. However, since the erstwhile

Municipal Council has been elevated to the status of Municipal

Corporation it may further be necessary to adopt the

Standardized Bldg. Byelaws and Development Control Rules of

Corporation towns.

2. I am , therefore, directed to convey this directive

under section 154 of the Maharashtra Regional and Town

Planning Act , 1966 that the Aurangabad Municipal Corporation

shall immediately bring into force the Standardized Building Bye

laws and Development Control Rules for Corporations towns .

( copy enclosed )

3. I am further directed to convey a further directive to

your Corporation under section 37 of the M.R.&T.P. Act , 1966

that your Municipal Corporation should take action for adopting

the said Standardized Building Byelaws and Development

Control Rules for Corporation towns by following the procedure

prescribed therein also.

Yours faithfully,

Sd/-

( G. S. Pantoalekundri )

Under Secretary to Govt.“

8. The Government was of the firm view that after a

Municipal Council is elevated to the status of a Municipal

Corporation, it is necessary to adopt Standardized Building Bylaws

and Development Control Rules' devised for Corporation

towns. The reason for this opinion was obvious. Development of

a Corporation towns is more important and would affect larger

number of people than development of land within limits of a

Municipal Council. At that time, the Government had already

framed the standardized compilation of building by-laws and

development control rules. The Municipal Corporation

Aurangabad, in view of this opinion of the government, was

directed to immediately bring into force the standardized

building by-laws and development control rules devised for

Corporation towns. Copy of such Rules was enclosed with the

letter. The Government clearly mentioned that this is a direction

given utilizing powers under Section 154 of MRTP Act. Let us

now read the provisions of Section 154 of MRTP Act.

“154.(1) Every Regional Board, Planning Authority and

Development Authority shall carry out such directions or

instructions as may be issued from time to time by the

State Government for the efficient administration of this

Act.

(2) If in, or in connection with, the exercise of its powers and

discharge of its functions by any Regional Board,

Planning Authority or Development Authority under this

Act, any dispute arises between the Regional Board,

Planning Authority or Development Authority, and the

State Government, the decision of the State Government

on such dispute shall be final.

9. These provisions have given wide powers to the State

of Maharashtra to issue directions to the Corporations and

others. Sub-section 2 thereof further provided that, if any

dispute arises between a Corporation and the State of

Maharashtra, the decision of the Government would be final. The

direction referred to above practically compelled the Municipal

Corporation to bring into force the standardized building by-laws

etc., for the Aurangabad Corporation towns. As said above, that

the Corporation faithfully enforced these standardized building

by-laws which provided 15% and not 10% of a layout land to be

reserved as open space for recreation. This change was certainly

beneficial to overall development of Corporation town. More

area would be kept open for recreation. We are aware that open

spaces provided in a layout are not only for recreation of the

neighbourhood but, is also considered to be lungs of such

locality. Open spaces provide fresh air and greenery. On the day

when this direction was given, there was no dispute between the

Corporation and the State of Maharashtra as to whether such

direction was permissible under Section 154 of MRTP Act, neither

any land owner questioned this direction. All the land owners

who were interested in getting their layouts sanctioned, followed

the direction and kept 15% of their lands as open space for

recreation either willingly or grudgingly. They did not challenge

this direction being beyond the scope of Section 154 of MRTP

Act.

10. The learned Counsel for the Corporation as well as

the layout holders argued that the direction in fact was beyond

the scope of Section 154 of MRTP Act. In order to support their

contention, they placed reliance on a judgment of Division

Bench of this Court in Writ Petition No. 2287 of 2010 (unreported

judgment). In this judgment, limits of powers of the State under

Section 154 of MRTP Act, are discussed. The facts of the

reported case were different. The State Government had, on

15th September, 2010, issued directions to all the Municipal

Corporations and Municipal Councils to initiate process for

modification in their sanctioned development control rules for

including new regulations/rules. It was directed that the

Planning Authority should publish requisite notice inviting

suggestions to the proposed modification and then, after

completion of legal formalities, as required under Section 37,

should submit proposed modification to the Government for final

sanction. The Court held that part of the direction was illegal

because the process of modification would come to an end only

after sanction is accorded by the government to the

modification. The modification thus would come into force only

after granting of such sanction and not prior thereto.

11. The facts of our case are completely different and we

have discussed them above. We have no doubt in our mind that

the reported judgment would not affect our judgment on the

issue as to whether the directions under Section 154 of MRTP Act

given by the State of Maharashtra in 1982 were beyond the

scope of Section 154 of MRPT Act. We hold that the direction

was quite within the powers of the State of Maharashtra, and

such direction was necessary for efficient administration of MRTP

Act.

12. The learned Counsel for the respondents suggested

that there was no reason for the State of Maharashtra to issue

this direction because the notification through which the

Municipal Corporation was established took sufficient care as to

which building bye laws etc., would apply in interregnum. They

pointed out the Government notification, a gist of which is

already quoted above. The quoted portion of the G.R. is used in

support of this submission.

13. The argument based on the above quoted

Government Notification of 3rd December, 1982, is erroneous.

This Government Notification brought uniformity in all the areas

emerging into Corporation city limits. It did not preclude

possibility of a direction being issued under Section 154 of MRTP

Act. Had there been no direction under Section 154 of MRTP Act,

Government Notification referred to above would have prevailed.

In that case, the Corporation which got newly established in

December, 1982, would have permitted layouts with only 10%

area reserved for recreation. But, in the wisdom of the State of

Maharashtra, they consciously took a decision that different set

of building bye-laws and development control rules should be

enforced in the newly formed area of the Corporation town. In

this new set, a layout would be permitted with 15% open space

for recreation. This change was consciously made by the State

of Maharashtra and Section 154 of MRTP Act, apparently gives

such powers to the Government. The judgment referred to

above laid down a rule that the Government cannot issue a

direction under Section 154 of the MRTP Act, for implementing a

change in by-laws unless a procedure prescribed under Section

37 of MRTP Act is properly followed. Even in this case, the

building by-laws of Municipal Council were enforced prior to and

after 8th December, 1982, but there were building by-laws of

Municipal Council and not of Municipal Corporation. In our view,

exigency of the situation that prevailed at that time, permitted

the Government to give direction to the Corporation to enforce

new set of building by-laws. As indicated above, this change

was not only implemented but no one raised any objection to it.

This direction of the Government was never challenged in any

Court of law till the respondents filed their reply. We are of the

view that the direction to enforce a new set of bye-laws cannot

be held to be illegal after thirty years or more. So, if the building

by-laws that were made applicable during December, 1982 till

1992, were held to be lawfully, the impugned resolution appears

to be incorrect and illegal step. The question does not arise as

to whether owners of lands, who submitted layouts under the

new building by-laws, were put to loss if they were asked to keep

15% land reserved for recreation.

14. They would have calculated the costs of land which

they had lost as unsalable area while fixing rate of land which

was salable area. In other words, the owners did not suffer any

loss. Even though incorrect building by-laws were enforced on

them, the cost of the land which was lost to them is recovered in

the sale of plots. A piece of land which was earlier either an

agricultural land or a fallow land, was sought to be used for

urban development in limits of a Corporation town. The

provisions of MRTP Act provided that before development could

be commenced on such undeveloped land, the same is required

to be processed with a layout. The conversion of a open plot

into a layout is a serious change that takes place in respect of

the status of the land. Earlier the entire land could have been

sold but, after the layout is made and sanctioned, proper plots of

definite size with provisions of road and open spaces for

recreation would be sold. The land thus after getting subjected

to layout becomes more valuable. It is only after layout is

sanctioned the same can be utilized for urban development. If

one peruses by-laws which governed conditions imposed while

converting a land into a layout, one gets a clear idea that a

specific care is taken to provide amenities to the proposed

residents of the area. They would be under obligation to use the

plots which they purchased for their residents or such other

permissible use under by-laws and not to encroach on land left

for road or open spaces for recreation etc. Step for seeking

sanction of layout in respect of a piece of land is apparently the

first step for subjecting a piece of land to urban development.

Once such layout is finalized, if the development takes place, the

layout virtually becomes unalterable. The plot in such layout are

sold and are developed by individuals. The land reserved for

road and open spaces are utilized for such purposes and none

else. In an ideal case, the plot owners would form a cooperative

society and using contributed funds they would keep spaces for

recreation, clean and tidy and usable for recreation. They may

develop garden or play ground on such lands. The building bylaws

also contemplated that such plots would be handed over to

the Municipal Corporation so that they would not only protect