Pushpabai Shrikrishna Joshi vs The State Of Maharashtra Thr Its ...
2021 Latest Caselaw 7032 Bom

                                     1                             wp 4088.2021

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               BENCH AT AURANGABAD

                   WRIT PETITION NO.4088 OF 2021
                                WITH
                 CIVIL APPLICATION NO. 4244 OF 2021

                PUSHPABAI SHRIKRISHNA JOSHI
                            VERSUS
            THE STATE OF MAHARASHTRA AND OTHERS
                               ...
                 Advocates for Petitioner:
                       Mr. A. S. Bajaj
       AGP for Respondent No. 1: Mr. K. N. Lokhande
       Advocate for Respondent No.2: Mr. S. S. Tope
              Advocate for Respondent No. 3:
                      Mr. D. P. Bakshi
      Advocate for Respondent No.4: Mr. A. M. Karad
                               ...

                                CORAM: S. V. GANGAPURWALA &
                                       SHRIKANT D. KULKARNI, JJ.

                               Reserved for Orders On: 20.04.2021
                               Order Pronounced On:           04.05.2021

 ORDER (Per S. V. Gangapurwala, J.):

1. The petitioner seeks directions against the

respondents prohibiting them from carrying out

work of Overhead Water Tank Reservoir in the open

space of the layout in land Gut No.165/1, 165/2

and 171/5 at village Harsul, Taluka and District

Aurangabad.

                                       2                                   wp 4088.2021

 2.       Mr.          Bajaj,         learned          Advocate            for        the

petitioner submits that the petitioner is owner

and purchaser of Plot Nos. 1 to 11 of the layout

carved out of Gut No. 165/1, 165/2 and 171/5 at

village Harsul, Taluka and District Aurangabad

under registered Sale Deed dated 19.07.2000. Plot

Nos. 6 to 11 purchased by the petitioner are

adjacent to the open space. The open space of the

layout is handed over to respondent no. 2 -

Aurangabad Municipal Corporation by the

Developer / owners under registered Relinquishment

Deed dated 13.09.2001. The petitioner noticed

construction activity over the open space attached

to his Plot Nos. 6 to 11. Upon enquiry the

petitioner got the knowledge that respondent no. 2

through respondent no. 3 has undertaken the

project of water supply to Aurangabad city and are

constructing water reservoir tanks for

distribution of water to nearby area. According to

the learned Advocate, utility and value of the

plots adjacent to the open space would diminish by

construction of water reservoir tank.

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3. The learned Advocate submits that respondent

no. 2 / Corporation is merely trustee and

custodian of the open space. The open space is

relinquished in it's favour for maintenance and

benefit of the plot holders of the layout. The

open space in the layout is maintained for the

residents of the said layout. Respondent no. 2 /

Corporation does not have authority to deviate the

use of the plot for any other purpose than for the

beneficial use and enjoyment of the plot holders.

The learned Advocate submits that the ownership of

the open space vests with the owner. The learned

Advocate relies on the Judgment of the Division

Bench of this Court in case of Kishor Sharad

Borawake and another Vs. State of Maharashtra and

others reported in 2019 SCC OnLine Bom 1193 and

another Judgment of the Division Bench of this

Court dated 06.05.2014 in Writ Petition No. 5179

of 2003 with connected writ petition. The learned

Advocate submits that without acquisition the

respondents do not possess any authority to

undertake the project of construction of Overhead

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Water Tank Reservoir. The learned Advocate relies

on the Judgment of the Division Bench of this

Court in Writ Petition No. 461 of 1994 dated 23 rd

& 27th September, 2010. The learned Advocate

submits that when power is given to do a certain

thing in a certain way, the thing must be done in

that way or not at all. To buttress his

submissions, the learned Advocate relies on the

Judgment of the Ramchandra Keshav Adke (Dead) by

Lrs. and others Vs. Govind Joti Chavare and others

reported in (1973) 1 SCC 559.

4. Mr. Bajaj, the learned Advocate further

submits that it is erroneous on the part of the

respondent to contend that the selection of the

open space as the site for carrying out work of

Overhead Water Tank Reservoir is a part of

sanctioned scheme. The said site is not reflected

in the sanctioned scheme nor in the drawing

prepared for implementation of the scheme. The

Unified Development Control and Promotion

Regulations for Maharashtra State came to be

sanctioned and published for the first time on

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02.12.2020 (hereinafter referred to as UDCPR-

2020), as such the selection of open space as a

site cannot be said to be on the basis of the

regulations. The respondents to oblige and protect

the third party interest in whose land the

construction was proposed is now shifted to the

open space of the private layout. The said act is

arbitrary and violative of Article 14 of the

Constitution of India. The UDCPR-2020 do not

permit any construction over the open space of a

private layout for public purpose. The Regulation

3.4.7 clearly states that construction in the open

space will be permitted only for the purpose of

benefit of the owners of the plot of the layout

only. The Regulation Nos. 3.4.2, 3.4.7(i),

3.4.7(ii), 3.4.7(v), 3.4.7(vii) are to be read

together. The construction is to be done in an

area of 500 metres. If 10% is to be considered of

both the open spaces together then the carpet area

cannot be more than 230 Sq. Metres. The 10% area

of the open space where the construction is to be

carried out comes to 1317.75 Sq.Metres only. The

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construction cannot be left open without boundary

wall and if the same is constructed it would be

beyond permissible limits. The residents of the

locality are not interested in the water

reservoir. The respondents have placed on record

the signatures of various persons residing in

other localities. The learned Advocate refers to

Section 22 of the Maharashtra Regional and Town

Planning Act, 1966 to submit that the reservations

contemplated under the said provision would be

rendered ineffective, if, such construction is

allowed to be made on the open space. No

acquisition proceedings are initiated for

acquiring the open space for the construction.

Regulation 3.4.7 of the UDCPR-2020 cannot be read

in isolation; it has to be read with the statutory

provisions. Moreover, as per condition No. 3.4.7

of the UDCPR-2020, the proposal of construction of

such structure should be from the owners / owners'

society and shall be meant for the beneficial use

of the owners / owners' society. In the present

matter, no such proposal has been made. The

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learned Advocate further submits that the limit

fixed of 10% on the ground and 15% of the total

carpet area if utilised by the respondents will

render the open space unavailable for the plot

holders for recreational activities and more

particularly, children and aged persons.

5. Mr. Tope, learned Advocate for respondent

no. 2 / Corporation submits that the term open

space is a part of the definition of amenity.

Amenity is defined U/Sec. 2(ii) of the Maharashtra

Regional and Town Planning Act, 1966. The

Regulation 1.7.7 of the UDCPR-2020 defines Amenity

Space. In the said definition also amenity space

is a part of open space. The learned Advocate

relies on Regulation 3.4.7 of the UDCPR-2020 and

submits that the present work would be within the

purview of Regulation 3.4.7 of the UDCPR-2020. The

work would be carried out within the limits as

laid down under Regulation 3.4.7 of the UDCPR-

2020.

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6. The learned Advocate further submits that as

per present UDCPR-2020, the area of open space is

10% of the total area of the layout and as per the

said UDCPR-2020, area of 15% can be used for

construction of ESR. The respondents Authorities

can construct ESR to the extent of 15% in that

open space. There is no breach of any of the

condition. The ESR can be constructed in the

permitted area. The residents of the locality, so

also, the plot holders of the said layout have

time and again requested respondent no. 2 /

Corporation for the construction of ESR. The

construction of ESR would be for the benefit of

the layout holders. The demand for supply of water

of the said locality would be met with.

7. Mr. Bakshi, learned Advocate for respondent

no. 3 - Maharashtra Jeevan Pradhikaran reiterates

the arguments of learned Advocate for respondent

no. 2 / Corporation and submits that if the

boundary wall is not to be constructed then the

proposed ESR can be constructed on 355 Sq. Metres

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and the same would be permissible as per the

UDCPR-2020.

8. Mr. Jarare, learned Advocate for the

intervenors submits that the intervenors are the

residents of the locality and some of them are

also the owners of the plots in the layout. The

residents of the said locality have filed

representation with the Corporation for solving

the water supply problem and if the water

reservoir tank is constructed the same would solve

the water problem of the residents of the said

locality.

9. We have considered the submissions canvassed

by the learned Advocates for respective parties.

10. It has been held in Judgments as referred to

by the learned Advocate for the petitioner that

the open space cannot be relinquished to the

planning authority. The ownership of the open

space vests with the owners and the same is meant

for the use and enjoyment of the plot holders. The

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open space of the layout is normally owned by the

owner of the property. The open space is also

meant for the beneficial use and enjoyment of the

layout plot holders. The layout is consisting of

56 plots. The petitioner, it appears, has

purchased about 11 plots out of 56 plots of the

said layout; as per the contention of the

petitioner.

11. Apart from the petitioner none of the owners

of the layout plot holders have objected for the

construction of the water reservoir. The

Corporation and also the intervenors have placed

on record the signatures of various persons

requesting the Corporation to construct the water

reservoir so that the crisis for supply of potable

water would be resolved.

12. The proposition that, if, the statute

requires a thing to be done in a particular manner

the same has to be done in that manner does not

require debate. The same is the settled

proposition.

                                       11                                wp 4088.2021


 13. The              Maharashtra                Jeevan      Pradhikaran                /

Respondent No. 3 has filed an affidavit clarifying

that it is an implementing authority of water

supply and sewerage scheme. The water supply

scheme in Aurangabad city would be implemented by

it. The tender of respondent no. 4 - M/s GVPR

Engineers Limited is accepted. The water storage

tank i.e. Elevated Service Reservoir (ESR) is

undertaken on the open space of the sanctioned

layout plan i.e. writ site. The technical sanction

and administrative approval has been given by the

State Government under Nagarothan Abhiyan for

augmentation of the Aurangabad water supply

project costing Rs.1680.50 Crores and on that

basis work has been awarded to respondent no. 4.

The capacity of the present ESR is 17.85 lakh

litres. The writ land is technically most suitable

as it is at a higher place in that vicinity. This

ESR is supposed to be filled by gravity from

Nakshtrawadi MBR (Master Balancing Reservoir)

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14. The affidavit of respondent no. 3 further

states that it is necessary to construct ESR at a

higher place in the area to serve from that local

reservoir so as to maintain required pressure of

12M at each household in that area as per the

Government norms. If the ESR is constructed at a

lower elevated place then all citizens of these

areas would not get water with required pressure.

The affidavit further states that the said ESR is

in the interest of the plot holders of the said

layout.

15. The UDCPR-2020 for Maharashtra State are

applicable in the city of Aurangabad. Clause 3.4.7

of the said Regulations permits construction in

the open spaces. The permitted structure and use

in the open spaces without counting FSI in the

recreational open spaces are specified. Clause (i)

of Regulation 3.4.7 states that there may be

maximum 2 storeyed structures with maximum 15%

built up area of recreational open space, out of

which, built up area of ground floor shall not

exceed 10%. In case of stilt, additional floor may

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be allowed. Clause (ii) of 3.4.7 specifies that

the structures used for purpose of pavilion,

gymnasia, fitness centre, club house, vipashyana

and yoga centre, creche, kindergarten, library, or

other structures for the purpose of sports and

recreational activities are permitted. It further

provides that other utilities such as water tank

(underground or elevated), electric substation,

generator set, power house, garbage treatment,

public health out post / centre may be permitted

only with the consent of the society of the

residents. Clause (v) of 3.4.7 further states that

the proposal for construction of such structure

should come as a proposal from the owner/s,

owners' society / societies and shall be meant for

the benefit / use of the owners/ members of such

society / societies.

16. The contention of the petitioner is that the

plot holders of the layout where the ESR is to be

constructed on the open space have not given any

proposal for construction of the ESR.

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It would be worth considering that apart

from the petitioner none of the plot holder have

objected to the construction of the ESR in the

open space. 56 plots appear to be existing on the

layout. Petitioner is the purchaser of 11 plots.

47 plot holders have not objected for

construction of ESR on the writ site and some of

the plot holders, it appears, has also signed

representation for construction of the ESR. In a

way, the majority of the plot holders have tacitly

consented for the construction of the ESR. The

capacity of the ESR is 17.85 Lakh litres. The said

tank would be for the beneficial use of the plot

holders. It would resolve the disrupted supply of

water to the plot holders of the layout and other

persons in the vicinity of the said locality. The

construction of the ESR is in public interest. Of

course, the said construction will have to be in

accordance with the UDCPR-2020 i.e. the ground

floor shall not exceed 10% and with the maximum

built up area of 15%.

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17. The majority plot holders of the society have

consented for the construction of the ESR and the

same would be in the interest of the plot holders

and the other respondents of the locality. Water

supply scheme is to be implemented for the entire

city of Aurangabad and construction of the ESR in

the writ open space is the part of the same. The

petitioner, it appears, is only concerned with his

commercial interest.

18. Under Article 226 of the Constitution of

India the Court enjoins extraordinary powers. The

jurisdiction exercised by this Court under Article

226 of the Constitution of India is equitable. The

discretion that vests with the Court under Article

226 of the Constitution of India is a judicial

discretion to be exercised according to the

judicial principles. The discretion under the

extraordinary powers of this Court need not be

exercised to set right mere errors of law, more

so, when the action complained of is in public

interest. The Court would bear in mind the

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principle of "Salus Populi suprema lex" i.e. the

welfare of the people is of paramount importance.

19. In the present case, as observed supra,

construction of ESR is permissible under

Regulation 3.4.7 of UDCPR-2020, the only

limitation is the proposal should flow from the

owner / society. Except the petitioner the other

plot holders of the layout have not opposed the

construction of ESR on the open space; some of

them have actively supported construction of ESR

to be in the public interest and in the interest

of the residents of the nearby locality.

20. In light of the above, the respondents shall

construct the ESR on the writ site strictly within

the area permissible as per Regulation 3.4.7 of

UDCPR-2020.

21. Writ Petition and Civil Application is

disposed of. No costs.

[SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.] marathe