Punjabrao Srihari Wadje And Anr vs Municipal Corpn. Aurangabad Thr. ...
2016 Latest Caselaw 151 Bom

                                                      Writ Petition No.4208/1998
                                            1




                                                                          
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   BENCH AT AURANGABAD




                                                  
                         WRIT PETITION NO.4208 OF 1998




                                                 
     1.       Mr. Punjabrao Srihari Wadje,
              Age 37 years, Occ. Business &
              Social service, R/o Plot No.35,
              "Wadje Residency", Manjeetnagar,




                                         
              Aurangabad, Secretary
              Manjeetnagar Residents Association,
                             
              (Proposed), Manjeetnagar,
              Opp. Akashwani, Jalna Road,
              Aurangabad.
                            
     2.       Anil Sacchinand Walunjkar,
              Age 42 years, Occ. Service,
              Member Treasurer of the
              Manjeetnagar Residents Association,
      


              (Proposed) R/o Flat No.12,
              Dhanesh Apartment, Manjeetnagar,
   



              Opp. Akashwani, Jalna Road,
              Aurangabad.                      ...         PETITIONERS

              VERSUS





     1.       Municipal Corporation, Aurangabad
              through its Municipal Commissioner,
              Aurangabad.

     2.       The State of Maharashtra,





              through its Secretary,'
              Urban Development Department,
              Mantralaya, Mumbai - 32
              (Copy of respondent No.2 is
              to be served on the Govt. Pleader,
              High Court Building at Aurangabad)

     3.       The Icon National Sports Club,
              Aurangabad, through its Secretary
              Mr. Sunil Jagannath Magar,
              Age 28 years, Occ. Teacher,



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                                                            Writ Petition No.4208/1998
                                              2




                                                                               
              Working in Maharashtra Public School
              R/o Vishnunagar, Behind Akashwani,
              Near Mata Mandir, Aurangabad




                                                       
     4.       Shri Trimbak s/o Ganpat Tupe,
              Age major, Occ. Municipal Corporator
              (From Ward No.37),




                                                      
              Municipal Corporation, Aurangabad,
              R/o Bhavaninagar, Aurangabad

     5.       Prafful s/o Lalchand Malani,
              Age 47 years, Occ. Municipal




                                          
              Corporator (from Ward No.22),
              Municipal Corporation, Aurangabad
                             
              R/o Rajabazar, Aurangabad.        ...             RESPONDENTS

                                         .....
                            
     Shri   P.G. Godhamgaonkar, Advocate for petitioners
     Shri   P.S. Patil, A.G.P. for State
     Shri   Girish Kulkarni, Advocate holding for
     Shri   IA.M. Karad, Advocate for respondent No.1
     Shri   S.V. Kurundkar, Advocate for respondent No.3
      


                                         .....
   



                                     CORAM:       R.M. BORDE AND
                                                  A.I.S. CHEEMA, JJ.





                                     DATED:       29th February, 2016.


     JUDGMENT (PER A.I.S. CHEEMA, J.):

1. This petition is filed to set aside agreement dated

3.3.1998 entered into between respondent No.1 Municipal

Corporation, Aurangabad with respondent No.3 Icon National

Sports Club, whereby open space left in Manjeet Nagar Layout

has been agreed to be made available to respondent No.3 on

Writ Petition No.4208/1998

lease on rent of Rs.100/- per year for 30 years with right to

construct on 10% of the open space or 200 sq.mtrs., with

condition to maintain garden in the remaining open area.

2. The petition claims and it is argued for the petitioners

that, respondent No.3 Club is under complete control of

respondent No.4, who was elected Corporator at the concerned

time and attached with the then ruling Party in State. Layout

plan of Manjeetnagar was approved on 14.1.1985 and contains

35 plots. There is open space provided for garden, admeasuring

26450 sq. ft. To the east of the layout of Manjeetnagar, there is

Ahinsa Nagar, and on the West there is one Sant Eknath Society.

In the whole area, there is no other open space left. The open

space in dispute was earmarked for garden in the sanctioned

final development plan of Aurangabad city. The open space has

been unauthorisedly, without consent and ignoring objections of

residents of Manjeetnagar assigned by the Corporation in favour

of the Club, which is in control of respondent No.4 Corporator.

The residents of Manjeetnagar held meeting on 13.9.1998,

passing resolution against the move of the Corporation

permitting the Club to grab the open space. The residents have

formed association for the purpose and the resolution was

submitted to the Corporation. The Club purports to have one

Writ Petition No.4208/1998

Sunil Magar as Secretary and one Jasbirsingh Bhatia as Vice

President. All these people have no connection with the

Manjeetnagar Society and they do not own property there. The

residents came to know about resolution No.588 of 30.3.1998

assigning development rights to the respondent Club in respect

of the open space. On the same date of 30.3.1998, the

respondent No.1 Corporation entered into agreement with

respondent No.3 club. Even the witnesses of the agreement do

not own any property in Manjeetnagar locality. The open space

has been earmarked for garden and even estimates had been

prepared. As per record, just when the Corporation was to

develop the garden in the open space, the development rights

have been passed of to respondent No.3 Club.

3. It is stated for the petitioners that, construction on

the open space in violation of the development plan, could not

have been allowed under the rules. The petition refers to

installation of a tapari on the spot on 9.9.1998 and when

residents objected, the respondent No.4 along with the tapari

owner came forward to quarrel and complaints have been lodged

in Police Station. It is stated that, the agreement dated

30.3.1998 has been registered on 7.9.1998 when the petitioners

raised objections. According to petitioners, in the open space left

Writ Petition No.4208/1998

for garden in the locality, residents have right of fresh air and

use of the area is vested in the residents of the area and right in

the land did not vest with the Corporation by way of ownership or

for any other purpose and the Corporation could not have

diverted the purpose. The open space was not owned by the

Corporation and the Corporation had not paid any compensation

for the place either to the residents of the locality or to any other

person and thus, Corporation cannot change the user. It is

stated that, at the time when the Corporation passed resolution

in favour of the Club, the respondent No.4 was part of political

party which was in power and to show favouritism, the resolution

was passed and agreement entered into. For such reasons, the

petitioners claimed that the resolution No.588, passed by the

Corporation and the agreement entered into with the Club be

quashed and set aside.

4. The Corporation has filed affidavit-in-reply and it has

been argued that, if the petitioners were aggrieved by resolution

passed by the Corporation, representations should have been

filed to the State Government in view of Section 451 of the

Bombay Provincial Municipal Corporations Act, 1949 and the Writ

Petition should not have been filed. Respondent No.3 Club was

imparting education and training to youths in various sports and

Writ Petition No.4208/1998

had approached the Corporation with request to allot piece of

land from Manjeetnagar Layout. Property bearing C.T.S.

No.12489 belonged to one Sardar Trilochansingh who had

applied for sanction of layout, which was sanctioned on

14.1.1985. The owner, by executing agreement dated

23.1.1985, had handed over possession of the land under roads,

drainage etc. along with the open space, due to which the

Corporation became owner of the open space and all open spaces

mentioned in the layout. The open space remained to be

developed. When the respondent No.3 Club made request to

grant the land to them, the Standing Committee, in the meeting

dated 13.3.1998, resolved to allot 10% of open space or 200sq.

mtrs. whichever is less on long term lease basis to the Club.

Accordingly, the space has been allotted and as per the

agreement, the respondent No.3 club has undertaken to develop

the garden in remaining area incurring expenditure under

supervision of the Garden Department of the Corporation. The

open space cannot be considered as reserved area under the

development plan. Reserved areas under the Maharashtra

Regional and Town Planning Act 1966 ("M.R.T.P. Act" in brief) are

different. The present matter relates to development of land and

layouts as per the Development Control Rules. It is stated that,

as per Rule 13.3.1.3, the Corporation can grant or permit

Writ Petition No.4208/1998

construction over 10% of the open space for creation of Sports

Club, Health Club or any such activity. The Corporation claims

that, the resolution was passed as per the Development Control

Bye-laws and Building Bye-laws. The open space left in the

sanctioned layout vests with the Corporation and under Section

79(C) of the Maharashtra Municipal Corporations Act, the

Corporation can deal with its property.

5. The Club has also filed affidavit-in-reply, dated

12.10.1998 and it is argued that the club was duly registered in

1996. The Club has also raised similar defence as that which has

been raised by the Corporation. It is claimed by this respondent

that the purpose of the use of open space has not been changed.

22 residents of the area have given consent/ No Objection to

start sports club in the open space. Lease deed has been

executed in favour of the club, whereby the club has agreed to

develop garden on the open space. The lease is only for the

period of 30 years. it is claimed that the petitioner No.1 is

builder by profession and resides in adjoining locality and uses

the open space for parking of his trucks/ vehicles and thus, he is

opposing the agreement entered into by the Corporation. The

Manjeetnagar Layout is having total area of 302261.50 sq.ft., out

of which D.P. Road is 10075 sq.ft. and area reserved for plots is

Writ Petition No.4208/1998

245786.50 sq.ft. and open space is 26450 sq.ft. It is claimed

that, 10% area out of total area of open space, which comes to

26450 sq.ft. can be carved out and can be allowed to be

constructed for public purpose such as Recreation Hall, Clubs,

Gymnasium etc. This respondent accepts that if purpose is

changed, then that has to be banned. The Club runs a sports

club, which is not prohibited. Out of open space of 26450 sq.ft.,

10% comes to 2645 sq.ft., the Corporation has leased only 2000

sq.ft. area to the respondent No.3. It is claimed that, it is as per

the rules and bye-laws. According to this respondent, the object

of the Development Control Rules is that, the residents of locality

should get basic facilities/ amenities such as hygiene, and there

must be open space, recreation hall, sports club etc. so that

during the leisure time, the residents can visit this place. The

Club denies that its office bearers do not have concern with

Manjeetnagar locality. The respondent wants the petition to be

dismissed.

6. In Building Bye-laws, Chapter 13 has "Rules for

Development of Land Into Land Sub-Division and Layout". The

respondents have relied on Rule 13.3.1.3 to defend their action.

It will be appropriate to reproduce said Rule 13.3.1 to 13.3.1.3

here :

Writ Petition No.4208/1998

"13.3 Open Spaces -

13.3.1 In any layout of sub-division of land measuring 0.4 hector or more in residential and commercial zones, 10% of the entire

holding area shall be reserved, for recreational spaces which shall be as far as possible; be provided in one place.

13.3.1.1 No such recreational spaces shall admeasure

less than 400 sq. m.

13.3.1.2 ig The minimum dimension of such recreational space shall in no case be less than 7.5 m. and if the average width of such recreational space

is less than 24 m. the length thereof shall not exceed 2 1/2 times the average width.

13.3.1.3 The structures to be permitted in the open spaces shall be as per the following

provisions :

(i) They shall be single storyed structure with the maximum area not exceeding 10% of the open space. This shall be further subject to a maximum of 200 sq.m.

(ii) The structure shall be used for the purpose of pavilion or gymnasia or other activities which are related to open spaces ; and

(iii) No toilet block shall be permitted.

(iv) Whenever called upon by the Planning Authority to do so, under provisions of Section 202, 203 of BPMC Act area as under roads and open space in Byelaw Nos.12.3 to 12.5, 13.3 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

Writ Petition No.4208/1998

bonafide 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 no misuse of open spaces in which case the Authority shall take over the land.

Note : This would be exempted from F.A.R./ Built up area calculations. Every such plot and recreational open space shall have an independent means of access."

7.

It is clear from above that, the structure permitted in

open spaces can be only single storyed not exceeding 10% of the

open space. This is further subject to a maximum of 200 sq.m.

The structure can be used only for the purpose of pavilion or

gymnasia or other activities "which are related to the open

spaces". No toilet block is to be permitted in the structure. This

appears to be so as nearly plot residents of lay-out for whose

beneficial use the open space is to be left would not need it, their

flats/houses being near. If the resolution No.588/15 (Page 35)

passed by the Corporation is perused, it merely records that the

application of the Icon National Sports Club (respondent No.3)

has been received; that it is operational since two years and is

doing the work of preparing quality players and wants the open

space on long lease. The resolution accepted proposal putting

the conditions that :

Writ Petition No.4208/1998

(i) Rent will be as per resolution dated 30.11.1996 and

(ii) As per the Development Control Rules, permission for

construction to the extent of 10% or 200 sq.mtrs. whichever is

less will have to be taken and that,

(iii) The period of lease will be 30 years, but after five years

lease renewal will have to be done.

No condition was stipulated that the structure will

have to be used for particular purpose leave aside what above

Rule 13.3.1.3(ii) required, nor condition as per (iii) was directed.

8. It is merely stated that, the rent conditions will be as

per usual terms. If the rent agreement (Exhibit C) entered into

by the Corporation with the Club is perused, although it provides

that garden in the remaining open space will have to be

maintained, there are no clear provisions that the structure to be

put up will be used for activities which are related to the open

space. Agreement permits construction of hall and states in para

7 that in the space given from open space only hall and ancillary

to such use will be permissible. The use of the structure put up

has to have link with the use of the open space. Looking to the

rule referred above, the use of the open space and the structure

have to be linked use. Plot holders in the layout for whose

Writ Petition No.4208/1998

benefit the open space is required to be left open nowhere

appear to be targeted beneficiaries in the structure to be put.

9. Apart from above, at the time of arguments, the

learned counsel for respondents were pointedly asked to show as

to how merely for the asking by respondent No.3 Club the

Corporation could, without following any procedure or

transparent method allot the space to respondent No.3 Club.

The Club was hardly two years old and no material was there of

it producing "quality players" and how, in such short period.

Section 79 of the Maharashtra Municipal Corporations Act

contains provisions governing the disposal of Municipal property.

Relevant clause (b) to (d), for present matter, read as under :

"79. Provisions governing the disposal of municipal property :

With respect to the disposal of property belonging to the Corporation, other than property vesting in the Corporation exclusively

for the purposes of the Transport Undertaking the following provisions shall have effect, namely :-

(a) .......

(b) with the sanction of the Standing Committee the Commissioner may dispose of by sale, letting out on hire or otherwise any moveable property belonging to the Corporation, of which the value does not exceed

Writ Petition No.4208/1998

five thousand rupees; and may with the like sanction grant a lease of any immoveable property belonging to the Corporation, including

any such right as aforesaid, for any period exceeding one year or sell or grant a lease in perpetuity of any immovable property belonging to the Corporation the value of premium

whereof does not exceed fifty thousand rupees or the annual rental whereof does not exceed three thousand rupees;

(c) with the sanction of the Corporation, the

Commissioner may lease, sell, let out on hire or otherwise convey any property, moveable or

immoveable, belonging to the Corporation;

(d) the consideration for which any

immoveable property or any right belonging to the Corporation may be sold, leased or otherwise transferred shall not be less than the current market value of such premium, rent or other consideration.

10. There is no material available as to on what basis the

rent has been calculated at the relevant time at Rs.100/- per

year. No transparent procedure was adopted for leasing out the

property in favour of the respondent Club. No public information

was given that the open space is to be leased out and interested

parties who would use the structure to be put up for pavilion or

gymnasia or other activities which are related to the open space,

may apply. It is not the case of the Corporation that for the

open space left open in the layout by the then owner,

compensation was paid. No doubt, the Corporation got an

agreement Exh. R-3 executed from the then owners, copy of

Writ Petition No.4208/1998

which has been filed, which mentions that, the ownership of the

open space will vest in the Corporation. Clause (1) of the

agreement rather mentions that the ownership will vest in the

Corporation "without any compensation". Thus, the Corporation

did not even pay the ridiculous "Re.1" (which itself is not

acceptable) mentioned in Rule 13.3.1.3(iv) referred above.

However, the owner left the open space open in view of the

building bye-laws ig and Development Control Rules. The

Corporation cannot be seen as acquiring ownership to property in

lieu of granting sanction to layout. If the person desirous of

developing land is required to leave space open, it has to be left

open and not that the Corporation can declare ownership and do

whatever it desires with the open space as per its own sweet will.

11. The reasons why we have just mentioned that the

provision stating that the Corporation will pay "Re. 1" is not

acceptable, can be found in the judgment of Pt. Chet Ram

Vashist (Dead) by L.Rs. Vs. Municipal Corporation of Delhi,

[AIR 1995 Supreme Court 430]. In that judgment the

Hon'ble Supreme Court was considering Section 313 of the Delhi

Municipal Corporation Act, 1957 regarding lay-out plans. After

referring to the provisions, the Hon'ble Supreme Court observed

that :-

Writ Petition No.4208/1998

"None of its provisions entitled the Corporation

to claim any right or interest in the property of the owner. Sub-section (3) empowers the Standing Committee to accord sanction to the lay-out plan on such conditions as it may think

fit. The expression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. The Corporation has been given the right to examine that the lay-out plan is

not contrary to any provision of the Act or the rules framed by it. For instance a person

submitting a lay out plan may be required to leave certain open space or he may be required that the length and width of the

rooms shall not be less than a particular measurement or that a coloniser shall have to provide amenities and facilities to those who shall purchase land or building in its colony. But the power cannot be construed to mean

that the Corporation in the exercise of placing restrictions or imposing conditions before

sanctioning a lay-out plan can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favour of the Corporation free of cost.

That would be contrary to the language used in the Section and violative of civil rights which vests in every owner to hold his land and transfer it in accordance with law. The resolution passed by the Corporation directing the appellant to transfer the space reserved

for tube wells, school and park in its favour free of cost was depriving the owner of its property and vesting it in the Corporation against law. The finding of the High Court that such condition did not amount to transfer of ownership but it was only a transfer of the right of management cannot be accepted. The two rights, namely, of ownership and of management, are distinct and different rights. Once a vacant site is transferred in favour of another free of cost then the person

Writ Petition No.4208/1998

transferring it ceases to be owner of it. Whereas in transfer of right of management the ownership continues with the person to

whom the property belongs and the local authority only gets rights to manage it. But the conditions imposed by the Standing Committee clearly meant to transfer the

ownership in favour of the Corporation. The Corporation as custodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such

amenities but whether such a provision can entitle a Corporation to claim that such

property should be transferred to it free of cost appears to be fraught with insurmountable difficulties. The law does not

appear to be in favour of the Corporation. Public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the

two plots for park and school then he was not acting against public interest. This cannot be

stretched to create a right and title in favour of a local body which utmost may be entitled to manage and supervise only."

12. Considering the provisions applicable to the present

matter, keeping in view observations of the Hon'ble Supreme

Court, we find that the Corporation does not have unfettered

rights relating to open space. The Corporation has to use it for

the purpose for which the space is left open.

13. In this regard, the petitioners have rightly pointed

out the Circular issued by the Government of Maharashtra having

Writ Petition No.4208/1998

No.TPB4396/114/C.No.89/96/NV.11, dated 10th June 1996. The

Circular refers to misuse being done of such 10% open spaces

handed over to public institutions. The Circular records that, to

such open spaces, the first right is of the plot holders of the

layout, because the plot holders have indirectly to the extent of

their plots paid price to the owner of the plot even for the open

space which was required to be left by the owner. It is stated

that, even if from the open space 10% would be constructed for

"Balak Mandir, Club Hall" etc., still such use should be made by

the Corporation or jointly by the plot holders of the layout. The

Circular requires forming of Co-operative Society/ Federation of

plot holders of the lay-out. The proposal should be received from

the Co-operative Society/ Federation of the plot holders and

should be for common use. If Society/ Federation has not been

formed, Registered Undertaking can be taken from plot holders

to use the open space for the purposes specified. Such structure

can be only for purposes of recreation. As per the directions

issued by the State Government, the remaining space has to be

left open permanently for the common use of the plot holders as

a playground or garden or space for recreation. The Circular

contains directions that it would be permissible for the

Corporation to give such 10% open space to the Co-operative

Society/ Federation of the plot holders on rent on such terms and

Writ Petition No.4208/1998

conditions as mentioned in the Circular.

14. The above circular was issued on 10.6.1996, which

was before the respondent Corporation passed resolution dated

30.3.1998 to give away the land to the respondent Club. There

is no material to show that the Corporation made any efforts as

were directed under the above Circular dated 10.6.1996.

15.

This Court has, in the matter of "R.S. Pool Table &

others Vs. The Aurangabad Municipal Corporation & ors."

(Writ Petition No.4335 of 2012), decided on 8th July 2014,

held that, even where Corporation has to lease its land, it would

be necessary to follow transparent procedure inviting tenders by

issuing advertisement. In this matter, the Corporation cannot

justify its action of simply receiving an application from a Club

hardly two years old, managed by one of its Corporator and

leasing out property, in violation of the Circular dated 10.6.1996,

which had been recently issued at that time. In fact the Circular

issued by State was specifically to curb leasing outs to such

public institutions. Neither the Circular was resorted to nor any

transparent procedure was followed for leasing out the land. In

fact, as per direction Clause 'B' of the Circular, the only course

open for the Corporation was to either lease out the open space

to the Society/ Federation or develop the same itself.

Writ Petition No.4208/1998

16. For such reasons, the allocation of the open space

made by the Corporation in favour of respondent No.3 and the

impugned agreement dated 7.9.1998 is quashed and set aside.

Looking to the averments of the respondent No.3 that the

petitioner No.1 was misusing the open space to park his vehicles

etc., we record that it would be responsibility of the Municipal

Corporation to ensure that the open space is kept open and for

common use of the plot holders of the lay-out. The Corporation

would be at liberty to take necessary steps as per the Circular

referred and to ensure that open space is used strictly for the

purpose for which it is left open under the bye-laws and shall

take action against violation, if any.

17. Rule made absolute accordingly. No costs.

              (A.I.S. CHEEMA, J.)                         ( R.M. BORDE, J.)