Brijlal Kalyanji Bhate And Ors. vs Municipal Council And Anr.
2006 Latest Caselaw 587 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. The petitioners Nos. 1 to 3 claimed themselves to be owners of Field Survey Nos. 96/3 and 98/2 of Mouza - Khamgaon within Khamgaon Municipal Town limits of Khamgaon Municipal Council and they contended that in lieu of permission granted to them to develop open space in the sanctioned layout, they surrendered the land for 60 ft. wide D.P. Road after its reservation had lapsed. However, later on Municipal Council has revoked that permission and hence said revocation is illegal. The prayer is to permit them to develop the open spaces. It is also their contention that after permission to develop was accorded, they have created third party interest in favour of petitioners Nos. 4 and 5. Respondent No. 1 in the present matter is Municipal Council, Khamgaon through its Chief Officer while respondent No. 2 is the Planning Authority functioning under provisions of Maharashtra Regional and Town Planning Act (hereinafter referred to as MRTP Act). We are also concerned with Maharashtra Municipal Councils Nagar Panchayat and Industrial Townships Act, 1965 (hereinafter referred to as Municipalities Act).

2. We have heard Shri Mohta, learned Counsel for the petitioners on 6.6.2006 thereafter on 7.6.2006, 19.6.2006 and then on 22.6.2006. The matter was listed on 19.6.2006 and on that date, it was brought to our notice that petitioner No. 2 has expired in the month of March 2006. Civil Application No. 3610 of 2006 to bring his legal heirs was moved on 22.6.2006 and it has already been allowed by separate order. On 19.6.2006, the residents of layouts in which open spaces are provided also filed an application for intervention.

3. Petitioners Nos. 1 to 3 state that they are owners of field Survey Nos. 96/3 and 98/ 2 of Mouza Khamgaon and hence they wanted to develop the same by preparing layouts. They applied for permission to convert said fields for non agricultural purposes and said permission was granted to them on 30.11.1976 and 19.6.1979 respectively by Sub-Divisional Officer, Khamgaon. They were permitted to prepare the layout for residential purposes in these fields. The layout accordingly prepared by the petitioners was sanctioned. The layout also left open spaces for public utility and for roads as required by rules in this respect.

4. The petitioners point out that respondents had prepared a Master Plan for development of Khamgaon town under the provisions of MRTP in 1976 and in it a reservation was shown in field Survey No. 96/3 for construction of 60 ft. Pimpalgaon Raja road. The proceedings for acquisition of land under reservation for said road were undertaken on the file of Special Land Acquisition Officer, Khamgaon vide Land Acquisition Case No. LAO-Khamgaon-5/84-85 and a notice under Section 9 of Land Acquisition Act, 1989 was also served upon the petitioners. However, these proceedings were dropped later on as Municipal Council was not in a position to make payment of compensation thereof to the petitioners.

5. In order dated 30.11.1976, area of 24989 ft. was shown to be under roads and nallahs in the said lay outs and area of 7432.50 sq. ft. was shown as open space for public utility. In another plan sanctioned on 19.6.1979, area of 21626 sq. ft. was shown to be under nallahs and two spaces admeasuring 6426 sq. ft. and 4634 sq. ft. was shown as open spaces for public utility. Petitioners Nos. 1 to 3 were directed to surrender lands under the roads, nallahs and open spaces as layout as also open space for public utility to Municipal Council. The petitioners accordingly surrendered the land by executing surrender deed dated 18.11.1980. The petitioners contend that land under 60 ft. D.P. road was not surrendered and remained with petitioners Nos. 1 to 3. The proceedings were later on dropped and Municipal Council was unable to give effect to said D.P. Reservation. The reservation lapsed after 10 years ie. in the year 1986. In the proposed revised plan, again said reservation for D.P. road was mentioned and hence the petitioners by application dated 20.7.1988 raised objection to said draft plan pointing out all the facts mentioned above. The petitioners gave a proposal to the respondents offering to hand over or give 13610 sq. ft. of land from field Survey No. 96/3 which was shown as D.P. Reservation for road proposed, free of cost without any compensation but on condition that petitioners Nos. 1 to 3 be allowed to prepare layout and lay plots in open space area of 7931 sq. ft. from layout No. 1 sanctioned as per order dated 30.11.1976 and in open space of 4634 sq. ft in layout No. 2 sanctioned vide 1979 order. This proposal of petitioners Nos. 1 to 3 was considered by respondents in their meeting held on 18.1.1989 and resolution came to be passed approving said proposal and permitting the petitioners to lay plots on open spaces mentioned by them and asking petitioners to execute surrender deed and get the map sanctioned. This was communicated to the petitioner vide communication dated 19.1.1989 and the petitioners executed requisite surrender deed and surrendered 13610 sq. ft. of area from field Survey No. 96/3 to the respondents for construction of D.P. road and the respondents also took possession of that land. The petitioners prepared plots in two open spaces as per above resolution and entered into an agreement with petitioners Nos. 4 and 5 to sell the same and thus created third party interest in the matter.

6. However, on 18.8.1989, the respondent Council passed a Resolution No. 20 and resolved to resume land from layout of petitioners Nos. 1 to 3 without making any mention of land taken by Municipal Council for D.P. road free of cost. The petitioners asked for certified copies on 22.8.1989 but Municipal Council on 10.9.1989 refused to grant those copies. Thereafter on 11.9.1989, the petitioners received a show cause notice as to why permission granted to them on 19.1.1989 to lay plots in open space admeasuring 12565 sq. ft. should not be revoked. The petitioners submitted their reply opposing said revocation. On 18.9.1989, another notice was issued by the respondents to the petitioners stating that permission granted to them to lay plot on open plot is not valid. On 25.9.1989, petitioners Nos. 1 to 3 submitted their reply pointing out that they had surrendered more land for use of Municipal Council free of cost and in market the value of said land is more than Rs. Seven lakhs. They also pointed out that this was done after reservation had lapsed. They also pointed out that after sanction to lay plot was given, the petitioners have altered their position and hence the action for cancellation of permission granted on 19.1.1989 should be dropped. The petitioners state that contended that in their sale deeds these without giving petitioners an opportunity on 30.9.1989 by an order purported to be under Section 51 of MRTP Act, the respondents revoked permission granted on 19.1.1989. The petitioners, therefore, have approached this Court challenging said order dated 30.9.1989 and for restoration of permission granted to them on 19.1.1989.

7. This Court has admitted the matter for final hearing on 23.1.1992. There was no interim order granted till then and on that date, the Court ordered both sides to maintain status quo on that date to be maintained.

8. In reply to the petition, the respondents have filed their submission inter alia contending that the land meant for construction of D.P. road was already handed over to the Municipal Council and the resolution passed by the Municipal Council on 18.1.1989 was passed upon misconception of facts. It is further contended that in any case reservation had not lapsed and the Municipal Council could have again acquired the land. It is contended that open spaces left in both the layouts as per sanction orders passed in 1976 and 1979 could not have been permitted to be developed and ought to have been maintained as open spaces and the permission granted to petitioners Nos. 1 to 3 to develop those open spaces is contrary to the provisions of MRTP Act as also Municipalities Act. It is the contention that by order dated 30.9.1989 impugned in this petition, the respondents have set right the wrong committed earlier and no right of the petitioners has been violated.

9. We have heard Shri Mohta, learned Counsel for the petitioners and Shri Bhide, learned Counsel for the respondents.

10. As already stated above, on last but one day earlier, the residents of layout filed spaces in their layout filed application for intervention contending that the land as open space in their layout cannot be allowed to be built upon and action of Municipal Council in cancelling its earlier resolution dated 18.1.1989 and order dated 19.1.1989 is legal and valid. The residents contended that in their sale deeds these spaces and hence the action of the petitioners in seeking layout plots in those spaces causes prejudice to them and it is contrary to MRTP Act. Shri Mohta, learned Counsel for the petitioners has opposed filing of said application on eleventh hour. He disputes the statement of facts contained in the application.

11. We find that the arguments being advanced on behalf of the intervenors are mostly in line of defence taken by the respondents before this Court. Insofar as the execution of sale deed in favour of these intervenors or terms and conditions therein are concerned, it is a disputed question of fact which we are not inclined to examine at this stage. Similarly, whether petitioners have violated any civil right of intervenors in view of the stipulation in their sale deed will also require independent examination which we are not inclined to take up at this stage of hearing in present writ petition. We, therefore, find that intervention can not be allowed in this writ petition and intervenors are free to agitate their grievance in the matter by independent appropriate proceedings. The Civil Application No. 3521 of 2006 for intervention filed is according rejected.

12. Shri Mohta, learned Counsel for the petitioners has raised basically three contentions to challenge the impugned action of Municipal Council. His first contention is that the reservation for D.P. road over 13610 sq. ft. from Survey No. 96/3 has already lapsed and acquisition proceedings filed by Municipal Council were also dropped. The said land was therefore lost to Municipal Council. In such circumstances, petitioners Nos. 1 to 3 obliged Municipal Council by giving said land free of cost and only in view of permission to lay plots on comparatively small area i.e. land application for intervention contending that admeasuring 12565 sq. ft. only. He contends it is not that, it is not that the land which has been surrendered to Municipal Council in view of resolution dated 18.1.1989 was open land. He contends that therefore, there is nothing wrong in scheme worked out and no law prohibits such arrangement. His next point is in view of the permission granted on 19.1.1989 plots have been already prepared in open spaces admeasuring 12565 sq. ft. in both these layouts and the land under D.P. road is already surrendered to Municipal Council. He further states that third party interest in favour of petitioners Nos. 4 and 5 are also created because of said permission granted. Petitioners Nos. 1 to 3 have therefore drastically altered their position to their own prejudice acting upon the permission granted and hence the respondents are estopped from cancelling the said permission. He argues that if such action of Municipal Council is upheld, it would mean that the Municipal Council is permitted to enjoy the land under D.P. Road free of cost and he relies upon various provisions of MRTP Act to show that land under D.P. road ought to have been acquired by Municipal Council by paying him compensation. He argues that if the action of Municipal Council in cancelling permission already granted is to be upheld, D.P. Road land must revert back to the petitioners. In order to point out that respondents are estopped from cancelling the permission already granted, he has placed reliance upon the judgments in the case of Union of India v. Anglo Afghan Agencies A.I. R. 1968 S.C. 718, Madhya Pradesh Sugar Mills v. State of U.P. reported at , Gujarat State Financial Corpn. v. Lotus Hotels Put. Ltd. reported at and Union of India v. Godfrey Philips India Ltd. reported at . He has further contended that the defence of Municipal Council/respondents that lands prescribed for open spaces vested in them free of cost is also incorrect because said lands remained property of petitioners and in support he has placed reliance upon the judgment of Division Bench of this Court in the case of Vrajlal Jinabhai v. State of Maharashtra reported at 2003(4) Bom.C.R."(A.B.)724 : 2003(3) Mh.L.J. 215. He also relies upon the judgment of this Court in (Madhav Raghunath Thatte v. Director, Directorate of Town Planning, Maharashtra State reported at 1999(1) Bom.C.R. (A.B.)543 : 1998(3) Mh.L.J. 391 and B.M.C. v. Dr. H, Tenants Association reported at 1988(1) Bom.C.R. 578 : 1988 Mh.L.J. 1, to contend that the reservation for D.P. Road had in fact lapsed. In support of his contention he has also taken the Court through provisions of Sections 49, 126 and 127 of MRTP Act as also Sections 92 and 183 of Municipalities Act. He has also invited attention to the orders of Sub-Divisional Officer passed in this respect to substantiate his contention that land under D.P. Road was never surrendered by the petitioners in favour of the Municipal Council.

13. Shri Bhide, learned Counsel appearing for the respondents, on the other hand, has invited attention to the orders passed by the Sub-Divisional Officer to point out an observation therein that land under Pimpalgaon Raja road i.e. D.P. Road is already surrendered by the petitioners in favour of Municipal Council. He also points out that in said order dated 30.11.1976 while forwarding copy to respondents, Sub-Divisional Officer has directed Chief Officer to take immediate possession from the petitioners of the area under roads, lanes and area reserved for open space for public purposes. He also points out that the petitioners have also been directed to hand over the possession to respondent. Municipal Council. According to him, as the D.P. Road land was already surrendered, there was no question of starting any acquisition proceedings and therefore only the acquisition proceedings were allowed to be dropped. He points out that the surrender deed placed on record by petitioner is dated 18.11.1980 and contrary to order dated 30.11.1976 in which it has been observed that land is already surrendered by the petitioners. He, therefore, contends that dropping of land acquisition case has got no relevance and significance. He has thereafter invited attention to provisions of Bye law No. 19.2 of Standard Building Bye Laws for B and C classes of Municipal Council to point out that only nominal compensation is payable to petitioners for open spaces. He contends that the petitioner has voluntarily given up said compensation of Re. 1/per sq. ft. for D.P. road and have executed surrender deed in favour of the petitioner and therefore those open spaces vest in Municipal Council. He further contends that because of vesting, Municipal Council could not have re allotted those lands to the petitioners Nos. 1 to 3 in breach of Section 92 of Municipalities Act. He further invites attention to the fact that open spaces to be left in the layout cannot be allowed to be constructed upon even by Municipal Council and hence permission to lay plots therein granted to the petitioners Nos. 1 t03 is without jurisdiction and void. He contends that entire arrangement entered into between petitioners No. 1 to 3 and Municipal Council on 18.1.1989 is void and illegal and the same has been rightly cancelled by the Municipal Council by impugned communication dated 30.9.1989. He states that as the action of Municipal Council was contrary to law, the principle of promissory estoppel or estoppel is not attracted and in support of his contention he places reliance upon the judgments in C.A.S.B. v. Surender Kumar Das reported at 2003(1) S.C.C. 152 : 2002(8) SCALE 527, in Mahendra Baburao Mahadik v. Subhash KHshna Kanitkar reported at 2005(3) Born.C.R. (S.C.)28 : AJ.R. 2005 S.C. 1794, Bahnari Amman Sugars Ltd. v. Commercial Tax Officer (2005)1 S.C.C. 625. He also relies upon the recent judgment of the Hon'ble Apex Court in the case of State of Bihar v. Project Uchcha Vidya Sikshak Sangh reported at (2006)2 S.C.C. 545. He : further contends that the arguments of lapsing of reservation is also incorrect because I though land acquisition proceedings were] dropped allegedly on the ground of absence of paying capacity of respondents, the respondents had not given up the right to develop D.P. road and he points out that the petitioners themselves state that in 1989 while preparing revised development plan, . the Municipal Council ,had again proposed the said reservation. He argues that ultimately as D.P. road land was surrendered to : Municipal Council in 1989, the question of mentioning said reservation in D.P. plan thereafter did not arise. He, therefore, states l that there was no intention on the part of l Municipal Council to relinquish its right to . have D.P. road on said land. He points out . that mere expiry of period of ten years is not : sufficient under Section 127 of MRTP Act to , conclude that the reservation has lapsed. He states that petitioners Nos. 1 to 3 did not exercise further rights available to them in the matter and therefore reservation survived. He states that Municipal Council after taking possession of D.P. road land as per order dated 19.1.1989, has already constructed D.P. road and the said D.P. road is now in use. He relies upon the judgments of this Court in Kishor Gopalrao Bapat v. State of Maharashtra reported at 2005(5) Bom.C.R. (N.B.)682 : 2005(4) Mh.L.J. 466 and Ranjan Manubhai Doctor v. State of Maharashtra reported at 2005(2) Bom.C.R. (O.O.C.J.)923: 2005(1) Mh.L.J. 718, to contend that reservation for D.P. road had not lapsed. He further states that petitioners' contention that they have created third party interest is also of no consequence because the petitioners cannot be permitted to defeat the provisions of a welfare legislation like MRTP Act and he contends that said law which has been enacted for development of any locality and in the interest of environment cannot thus permitted to be defeated. He further points out that the petitioners are aware of construction of D.P. road and of the fact that possession of D.P. road land cannot be handed over to them back and therefore they have not made any prayer for restoration of possession of D.P. road or for payment of compensation to them for said land. He contends that the petitioners want to earn much more by putting open space in the lay out to residential use and this cannot be permitted. According to him, writ petition is without any substance and therefore liable to be dismissed.

14. In the facts and circumstances of the present case, the first question therefore arises for our consideration is whether reservation for D.P. road on Survey No. 96/3 had lapsed and whether the arrangement worked out on 18.1.1989/ 19.1.1989 between petitioners Nos. 1 to 3 on one hand and respondents on other hand is legal and valid. All other issues revolved around the answer to these questions.

15. Admittedly, the petitioners have executed surrender deed dated 19.1.1989 in favour of Municipal Council and thereby they surrendered possession of 13610 sq. ft. of land from field Survey No. 96/3 to respondents. This surrender has been done by them in view of permission granted to them by letter dated 19.1.1989 and said letter is written by Municipal Council in view of meeting of Municipal Council/ Planning Authority dated 18.1.1989. As per Resolution No. 2 passed on 18.1.1989, the application of petitioners by which they offered to surrender 13610 sq. ft. of land meant for D.P. road free of cost if they were permitted to layout plots on open space admeasuring 7931 sq. ft. in layout No. 1 and 4634 sq. ft. in layout No. 2. The Municipal Council found that the proposal was in the interest of Municipal Council because it was getting land for D.P. road free of cost. It therefore accepted the proposal and accordingly said surrender deed has been executed. The petitioners are requesting this Court to uphold the said resolution dated 18.1.1989 and the arrangement worked out thereby. In other words, the petitioners have not challenged the fact that D.P. road is already surrendered by them to Municipal Council. It is to be noted that this resolution has been passed in 1989 and surrender has been effected on 19.1.1989. There are no other orders passed in this writ petition. In this back ground we have no hesitation to accept the stand of Municipal Council that Municipal council has already constructed D.P. road on said land. The question to be decided in this back ground is whether reservation for D.P. road had lapsed in 1989. The arguments of petitioners were that after expiry of 10 years from 1976, the reservation lapsed automatically. In this respect, the petitioners have placed reliance upon the provisions of Section 38 of MRTP Act. The said Section deals with revision of development plan and the Section as it stands now requires that the Planning Authority has to revise the development plan at least once in 20 years from the date on which development plan has come into operation. The Planning Authority has been placed under obligation to do so if State Government directs it to undertake such revision. It is to be noted that this period of 20 years has been substituted for a period of 10 years by Amendment Act 39 of 1994. Therefore, prior to 1994, said period was only 10 years. Placing reliance upon this Section, the petitioners have contended that 1976 plan and reservation mentioned therein therefore came to an end in 1986. It is contended that therefore in view of Section 127 of MRTP Act, such reservation lapsed and D.P. road land become available to the petitioners free of any reservation.

16. Shri Bhide, learned Counsel for the respondents, on the other hand, has placed reliance upon very same provisions to argue that there is no such automatic lapsing of reservation and the petitioners have to take some positive steps to assert their right after 10 years and in absence of such assertion, the reservation survives.

17. The issue can be conveniently looked into in the light of various cases on which the petitioners as also respondents have placed reliance.

18. The judgment reported at 1988 Mh.L.J. 1 (supra) relied upon by the petitioners is the judgment of the Hon'ble Apex Court and it examines the question in the light of failure of Planning Authority to take steps within six months of the date of service of purchase notice and it holds that when purchase notice was given as provided under Section 127 of MRTP Act and Planning Authority took no steps as contemplated by Section 126(1) thereof, the reservation lapsed. In the facts of present case, admittedly, petitioners Nos. 1 to 3 did not exercise their option of issuing purchase notice and hence this ruling has no application here.

19. The other ruling on which the petitioners have placed reliance is in the case of Madhav v. Director, Town Planning reported at 1998(3) Mh.L.J. 391. This is the Division Bench judgment in which the Planning Authority had failed to take steps for acquisition within 10 years from the date of coming into force of sanctioned plan and it also did not take steps for acquisition within six months from the date of service of purchase notice. Again, for the reasons mentioned above, this Division Bench ruling has no application. In the light of subsequent discussion in this judgment in this respect, we feel that reference to both these judgments in more details is not necessary. In fact, the judgment of the Honble Apex Court in the case of B.M.C. v. Dr. H. Tenants Association reported at 1988 Mh. L.J. 1, is considered by the Division Bench of this Court in its judgment reported at 2005(1) Mh.L.J. 718 (supra). From the discussion in this respect as undertaken by the Division Bench in paragraphs 6 and 7, it is apparent that only if after expiry of period of 10 years, the owner exercises his right by issuing purchase notice and there is failure to take steps on behalf of Municipal Council, as contemplated. by Section 126(1) of MRTP Act, the reservation lapses. The Division Bench has found that if the owner had applied for development of land in such circumstances before the draft revised development plan has been notified, its subsequent notification is of no consequence. It is observed that because of failure of Municipal Council to act in terms t of Section 126(1) after receipt of purchase 1 notice, a right is vested in the owner to use c his land and that right cannot be defeated by subsequent act of notifying a revised development plan or sanctioned plan by the Planning Authority. It has been held that otherwise, the provisions of Section 38 of MRTP s~ would be rendered otiose. It is observed that Section 38 is required to be given effect to and hence ultimately the challenge in the pi petition was negatived. There, the application for development was submitted by owner a after revised development plan in view of provisions of Section 38 was notified.

20. The issue is also considered by another d~ Division Bench of this Court to which one of al us (B.P. Dharmadhikari, J.) was party and said judgment is reported at 2005(4) Mh.L.J. : 466. There it was found that reservation had g lapsed and the right which was conferred or vested in favour of owner of land for the purposes of development could not have been taken away by the Planning Authority by exercising power under Section 38 of Maharashtra Regional and Town Planning - Act. The declaration that reservation had lapsed was in this case made in earlier Writ ; Petition No. 3763 of 1998 decided on : 21.9.1999 and the controversy has been examined in the background of said declaration. From the discussion above, it is clear that the reservation does not lapse by mere expiry of period of ten years and the petitioner only gets a right to serve notice on Planning Authority and if within six months from the date of service of purchase notice the land is not acquired or steps for acquisition are not taken, the reservation is deemed to have lapsed and land is deemed to be released from reservation and it becomes available to the owners for the purposes of development as otherwise permissible in the case of adjacent land under the relevant plan. Thus, the right in this respect vests in owner only after serving a notice of purchase and Planning Authority fails to act upon said purchase notice within: a period of. six months. In the facts of present case, the petitioners Nos. 1 to 3 did not issue any such purchase notice and in this background it is clear that the reservation had not lapsed. The said contention of petitioners is, therefore, liable to be rejected. It has also come on record that in revised Development Plan, the Municipal Council was again proposing very same reservation for D.P. road on said land in Survey No. 96/3. Thus, Municipal Council could have very well acquired the land by paying compensation to petitioners Nos. 1 to3 in accordance with law. In the absence of assertion of their rights by the petitioners in this respect as contemplated by Section 127 the MRTP Act, the said question is rendered only academic as the respondents have already received possession of said land and 1ave also prepared D.P. road on it. The petitioners have not claimed any compensation for such taking over of land by the respondents in present petition.

21. The next question is whether the open space in the layout could have been permitted to be developed by laying of plots on it by the Municipal Council by Resolution dated 18.1.1989 or consequential order dated 19.1.1989. The perusal of orders dated 30.11.1976 and 19.6.1979 in this respect becomes necessary. The first order dated 30.11.1976 is granting permission to develop lands from Survey No. 96/3 and 98/2 of Mouza Khamgaon. The Sub-Divisional Officer in order has taken cognizance of the fact that some portion of land from Survey No. 96/3 is under proposed 60 ft. wide road i.e. D.P. road. Condition No. 8(g) mandates that all roads, lanes and public open spaces were to be handed over by owners to the Municipal Council for maintenance. The area under roads and lanes was exempted from non-agricultural assessment and order also observes that said area is surrendered by the petitioners to Municipal Council, Khamgaon for management and it shall be used for public purposes. The table in which said area which is exempted from non-agricultural assessment is specified, shows five internal roads as Roads I to V and it also shows open space for public purposes. It separately mentions D.P. road as Pimpalgaon Raja road in the last paragraph of the order. The Sub-Divisional Officer has observed that the surrender deed for public roads, lanes, open spaces which are for public purposes and for Pimpalgaon Raja road was accepted. Thereafter the S.D.O. has forwarded copies to various authorities including Chief Officer and Chief Officer has been directed to take immediate possession of the areas under roads, lanes and area reserved for open space which were to be used only for public purposes. In the copy of order forwarded to the petitioners, the petitioners were directed to hand over possession of land under roads, lanes and area reserved for public purposes to Municipal Council without delay. It is thus apparent that in this later part, there is no direction to the petitioners to hand over land under Pimpalgaon Raja road i.e. D.P. road to Municipal Council and also there is no corresponding direction to Municipal Council to take possession from petitioners Nos. 1 to 3. Though there is mention in last para to the effect that surrender deed in relation to various lands including Pimpalgaon Raja road was accepted, no copy of any such surrender deed is placed on record by the petitioners or even by the Municipal Council. It is not the case of the respondents that they had received possession of D.P. road land prior to 19.1.1989. We are, therefore, constrained to accept the arguments of Shri Mohta, learned Counsel that possession of D.P. road land was not handed over to Municipal Council before 19.1.1989. However, in view of the finding given above and facts disclosed above, this issue has lost its utility in present matter.

22. The fact remains that the order directed the petitioners to hand over open spaces also and those open spaces were directed to be used only for public purposes. There is no dispute between the parties about the extent of open spaces and those open spaces for first layout sanctioned by order dated 30.11.1976 are 8475 sq. ft. The sanction plan for layout shows that the land meant for D.P. road has not been taken into account while calculating the area of layout which has been worked out to about 87833 sq. ft. and as required by law 10% thereof has been left open as open space for public purposes.

23. A perusal of second order dated 19.6.1979 which relates to second layout again practically reiterates similar terms and conditions and it does not contain any mention of any surrender deed or its acceptance. The copy has been forwarded to the Chief Officer of Municipal Council for information and necessary action. However, in copy forwarded to the petitioners, it was mentioned that the petitioners were to hand over the possession of land for which surrender deed was accepted and said land was to be utilised for public purposes by Municipal Council. The perusal of second map in this respect reveals that the layout was to have two open spaces admeasuring 4634 sq. ft., 126 sq. ft., 5940 sq. ft. and 360 sq. ft. totalling to 11060 sq. ft. The lands under roads are mentioned as 21626 sq. ft. Again no surrender deed prior to date of this order is produced on record by any of the parties and it is not the case of the Municipal Council that they had received possession of any open space prior to any of these orders. On the contrary, the petitioners have placed on record a deed of surrender dated 18.11.1980 which mentions both the orders of Sub-Divisional Officer and it further mentions that as per conversion orders, the planning committee of Municipal Committee has decided to accept surrender of lands under road, nallahs and open spaces for public utility free of cost and accordingly the petitioners have surrendered lands under roads and also open lands in both the layouts to respondents by said surrender deed. It is, therefore, clear that open spaces which fall for consideration in present petition from both these layouts admeasuring 7432,50 sq. ft., 6426 sq. ft. and 4634 sq. ft. was surrendered by present petitioners free of cost to Municipal Council by surrender deed executed on 18.11.1980. This document has not been questioned by the parties.

24. Shri Bhide, learned Counsel for the respondents has argued that as these open spaces vested in Municipal Council in view of this surrender, the same could riot have been allotted back to petitioners Nos. 1 to 3 with permission to prepare layout upon it. The provisions of Section 92 of Municipalities Act are relied upon by him for this purpose. Section 92(1) prohibits Municipal Council from transferring any of its immovable property without sanction of State Government. It is admitted position on record that before passing Resolution dated 19.1.1989, the respondents have not obtained any sanction from the State Government. The learned Counsel for the petitioners has however contended that the land did not vest in Municipal Council at all and in support he has relied upon the judgment of the Division Bench of this Court reported at 2003(3) Mh.L. J. 215 (supra). The Division Bench therein has ob- served that the open space required to be left as such in layout does not automatically vest in Municipal Council and there is no law which stipulates that upon passing of an order sanctioning the layout and making provision for leaving of such open spaces, ownership of such open spaces under layout is transferred to or vest with Municipal Council. The respondents have not seriously disputed this proposition. However, the argument of respondents is that as per provisions of Standardised Building Bye-Laws and Development Control Rules for "B" 8b "C" Class Municipal Councils of Maharashtra, only nominal compensation is payable to the petitioners. The attention is invited to provisions of Bye law No. 19 in this respect. It is pointed out that Bye Law No. 19.1 deals with roads and streets in the layout and Bye Law No. 19.2 deals with requirement of leaving open spaces in the layout. It is contended that as per said requirement, 10% of the total area has been left and is reserved for open space in both the layouts of petitioners Nos. 1 to 3, The provisions of Bye Law No. 19.3 are pointed out to state that areas under roads and open space in Bye Law No. 19.2 are to be handed over to Planning Authority after development of the same against payment of nominal amount of Re. 1/-. It is stated that in the facts of present case, the respondents were ready and willing to pay such nominal amount and even today are ready and willing to such nominal amount. However, it is argued that the petitioners have waived such payment by accepting the offer of Municipal Council to hand over those lands free of cost and attention in this respect is invited to the Deed of Surrender dated 18.11.1980 which expressly mentions that the lands have been surrendered free of cost by the petitioners. It is contended that thus, a valid surrender in accordance with the provisions of law has already taken place and the open spaces have been surrendered to and vested in Municipal Council. It is apparent that it was open to the petitioners to insist for payment of compensation in lieu of open spaces transferred by them to Municipal Council by Surrender Deed dated 18.11.1980. However, they have voluntarily chosen to hand over those open spaces free of cost and validity of surrender deed dated 18.11.1980 is not in dispute. It is therefore clear that all these open spaces in both these layouts vest in Municipal Council and be came property of Municipal Council. The power imposed by provisions of Section 92(1) of Municipalities Act, therefore, comes into play and it was not open to Municipal Council to transfer said open space without sanction of State Government. The action of Municipal Council therefore in permitting petitioners Nos. 1 to 3 to prepare layout on two of these open spaces i.e. admeasuring 7931 sq. ft. from layout No. 1 and 4634 sq. ft. from layout No. 2 is therefore without any sanction of law and also without jurisdiction. It is, therefore, clear that the Resolution of Municipal Council dated 18.1.1989 and its consequential letter dated 19. 1.1989 or the surrender deed by which the petitioners surrendered land under D.P. road in view of permission given to them to prepare plots on these two open spaces are contrary to law and also public policy. The arrangement worked out is, therefore, unsustainable. It therefore follows that the Resolution of General Body of Municipal Council holding it to be so passed on 18.8.1989 and final order passed on 30.9.1989 are in accordance with law and cannot be questioned in any manner by the petitioners.

25. The contention of petitioners that they have altered their situation to their prejudice by surrendering D.P. road land admeasuring 13610 sq. ft. to Municipal Council because of the Resolution dated 18.1.1989 and they had allotted plots in two. open spaces and have created third party 1 interest in favour of petitioners Nos. 4 and 5 needs to be looked into in this respect. The petitioners have invoked estoppel and promissory estoppel in this respect. It is their contention that there is no prohibition in law which condemns the arrangement worked 1 out between petitioners Nos. 1 to 3 and respondents on 19.1.1989. In this respect under provisions of Section 92 of Municipalities Act and its violation as already pointed out above. The requirement of leaving open space , for public utility are also pointed out above. It is apparent that these open spaces for : public utility as directed by the Sub-Divisional Officer in his both orders cannot be used for laying down of residential plots. The provisions of Bye law No. 19.2 of Standardised Building Bye-law mentioned above also prohibits such user of open space. The argument that therefore the arrangement arrived at is not contrary to any provisions of law cannot be accepted.

26. Both the sides have cited various rulings to further their respective pleas in this respect. However, it is settled law that the provisions of estoppel or promissory estoppel cannot be invoked to defeat the provisions of law. Reference be made to the reasoned judgment of the Honble Apex Court reported at 2006(2) S.C.C. 545 (supra). In this judgment in paragraph 77 while narrating the consequence, the Honble Apex Court has observed that rule of estoppel has no application where the contention as regards a constitutional provision or statute is raised. The right of a State to raise question as regards its action being invalid under the Constitutional Scheme of India is now well recognized. The Apex Court observes that if by reason of such provision, the State Government is not in a position to support its action or intends to withdraw or modify the same, no exception thereto can be taken. The other judgment to which the reference in this respect can be made is reported at 2005(1) S.C.C. 625 (supra), wherein in paragraph 19 the Honble Apex Court has observed that when doctrine of Promissory Estoppel is invoked, the Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, be cause while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the Court. If there is a supervening public equity, the Government can be allowed to change its stand and has the power to with draw from representation earlier made by it which induce person to take such steps which may have gone adverse to his interest because of such withdrawal.

27. The judgment of the Hon'ble Apex Court reported at 2005(4) S.C.C. 99 : A.I.R. 2005 S.C. 1794 (supra) considers the scope of power of regularisation of unauthorised construction of Municipal Council in the light of provisions of MRTP Act and Municipalities Act. In paragraph 44, the Hon'ble Apex Court has observed that jurisdiction of local authority in this respect is confined only to deal with applications for grant of permission for construction as contained in Section 44 of MRTP Act whether at initial stage or when a notice is served under Sub-section (2) of Section 53 of MRTP Act. It is further observed that power to grant such permission can be exercised only within the purview of Building Bye Laws and Municipal Council does not possess jurisdiction to direct regularisation of such unauthorised construction if it is contrary to Building Bye-laws. In paragraph 54, after placing reliance upon its earlier judgment in Friends Colony Development Committee v. State of Orissa reported at 2005(2) Bom.C.R. (S.C.)691 : 2004(8) S.C.C. 733, it has been observed that though Municipal Laws permit deviation from sanctioned construction and its regularisation or compounding but it is only by way of exception and it has to be kept at a bare minimum. The Hon'ble Apex Court, therefore, dismissed the appeal before it and directed that the orders of High Court should be given effect to as expeditiously as possible.

28. In its judgment in the case of Debashis Roy v. Calcutta Municipal Corpn. reported at 2005(12) S.C.C. 317, the Hon'ble Apex Court found that when parking space in residential area was permitted to be used for commercial purposes by the Municipal Authorities and said permission was questioned in the High Court, writ petition in High Court was not confined to the raising of a dispute between private parties. The Hon'ble Apex Court in paragraph 8 observed that there was essential element of public interest involved as serious question alleging violation of building laws and town planning were raised. The Hon'ble Apex Court observed that if a case of illegal change of use and violation of building laws or town planning was made out,' then it was a clear case calling for an order of demolition of unauthorised construction.

29. In view of these judgments and the position emerging therefrom, we find it unnecessary to refer to all the cases cited by the learned Counsel for the petitioners on the aspect of estoppel. The perusal of said judgments however also reveal that the position that there can be no estoppel against the provisions of law is also recognized and accepted in those rulings. The perusal of judgment of the Hon'ble Apex Court reported at 2004(8) S.C.C. 733 to Friends Colony Development Committee v. State of Orissa reported at 2005 S.C.C. 1 also shows the importance of Town Planning Regulations and Municipal Building Bye-laws in this respect.

30. In this background it is difficult to accept the contention of the petitioners that in lieu of open space earmarked in the order of Sub-Divisional Officer, the land under D.P. road can be treated as open space. It is clearly misconceived and it defeats the provisions of development plan and also the Standardised Bye-laws mentioned above. The arguments of petitioners invoking principle of estoppel in the matter are, therefore, erroneous and misconceived. The Municipal Council has no jurisdiction to surrender open space and in any case, it cannot allow petitioners to prepare plots on these open spaces. The open spaces cannot be used contrary to Building Bye-laws.

31. In these circumstances, we do not find any fault with the order dated 30.9.1989 passed by the respondents and we hold that Resolution of permission granted to the petitioners on 19.1.1989 was not in accordance with law. We, therefore, find no merit in writ petition. The same is accordingly dismissed. There shall be no order as to costs.