19401 of 2019 are the original landowners (hereinafter referred to as “the landowners”) and respondents in the appeal arising out of SLP(C) No 19730 of 2019 are the plot holders/subsequent purchasers (hereinafter referred to as “the plot holders”). 4.2 On 18 August 2004, the Government issued a notification converting some land from ‘No Development Zone’ to ‘Residential Zone’, subject to the Municipal Council receiving 10% compulsory ‘open space’ and 10% as ‘amenity space’ free of charge. 4.4 On 12 January 2007, final sanction was granted to the layout by the Municipal Council. 4.8 After withdrawal of the writ petition before the High Court, the landowners amended the suit before the 6 Trial Court thereby challenging the Government Notification dated 18 August 2004. 4.11 Vide the impugned common judgment and order dated 4 July 2019, the High Court held that the writ petition filed by the landowners, i.e., Writ Petition No 2486 of 2018 was not maintainable.
Shri Sanjay Kharde, learned counsel submitted that the Division Bench of the High Court had grossly erred in allowing the writ petition filed by the plot holders. Pradnya Talekar, learned counsel appearing on behalf of the landowners and plot holders respectively, on the contrary, submitted that the High Court after considering the provisions of Sections 22, 33, and 37 of the Maharashtra Regional and Town Planning Act, 1966 9 and the Development Control Regulations (for short “the DCR”) has come to a considered finding that the ownership of the ‘open space’ and the ‘amenity space’ vest in the landowners/plot holders and as such, needs no interference. Insofar as the writ petition filed by the landowners is concerned, apart from there being a delay of about 14 years in approaching the High Court, the said writ petition was also liable to be dismissed in view of the doctrine of election. In the present case, in the Development Plan published on 15 December 1992, the properties of the landowners were reserved as “Green Zone”/ “No Development Zone”. Vide Notification dated 18 August 2004, the same was converted from “No Development Zone” to “Residential Zone”. The said Notification specifically provided that in addition to reserving 10% space as “open space”, which was required to be compulsorily reserved in accordance with the DCR, additional space of 10% was to be reserved for amenities to be transferred to the Municipal Council free of cost. It is to be noted that though the landowners had executed documents giving possession to the Municipal Council, when the Municipal Council sought physical possession in 2012, the landowners filed Civil Suit seeking perpetual injunction along with an application seeking a temporary injunction against the Municipal Council. It is thus clear that having taken advantage of the sanctioned plan and on the basis of the same laying down the layout and only after failing to get the relief in the Civil Suit and the Revenue proceedings, the landowners approached the High Court.
The High Court was also right in holding that insofar as ‘open space’ is concerned, it was required to be kept as ‘open space’ for use by the plot holders.
Case Title: SHIRDI NAGAR PANCHAYAT Vs. KISHOR SHARAD BORAWAKE AND OTHERS
Case Number: CIVIL APPEAL NO. …………. OF 2023 [Arising out of SLP (C) No. 19401 Of 2019] (2023INSC851)
