[Cites 26, Cited by 0]
Bombay High Court
Milan Co-Op. Hsg. Society Ltd., Repr. ... vs The Pune Municipal Corp. And Anr on 5 January, 2026
2026:BHC-AS:34
1-SA-1400-2005.doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 1400 OF 2005
Milan Cooperative Housing Society )
Limited, Pune )
a society established and registered )
under the M.C.S. Act, 1960 )
vide its Registration No. PNA/HSG 437 )
and having its registered officed at )
Survey No. 1333, H. No. 5A+ )
6B+7B, Kothrud, represented by )
its Member Mrs. Urmila Karekar, )
age 69 years Occupation Housewife )
and Chairman of the Society )
Mr. Lalitkumar P. Thakkar, )
age adult, Chartered Accountant )
Secretary of the Society )... Appellant
(Org. Plaintiff)
Versus
1. The Pune Municipal Corporation )
(represented by Commissioenr )
haviing office at PMC Bldg., )
Shivaji Nagar, Pune 411005 )
2. The Deputy City Engineer )
(D.P.) Land and Estates )
PMC, Pune 411 005 )..Respondents
(Org. Defts)
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Mr. Siddharth R. Ronghe for the Appellant
Mr. Rishikesh M. Pethe for the Respondents.
CORAM : GAURI GODSE, J.
RESERVED ON : 16th SEPTEMBER 2025
PRONOUNCED ON : 5th JANUARY 2026
JUDGMENT :
-
1. This second appeal is filed by the original plaintiff to
challenge the concurrent judgments and decrees dismissing
the suit for a declaration that the plaintiff has the right, title
and interest and the authority to develop the suit property.
The suit was filed with respect to the plot of land bearing Plot
No. 14( part of old survey no.3) out of Survey No. 133, Hissa
No. 5B, 6B, 7B ('said land'). The plaintiff's prayer was for a
declaration that the plaintiff ('society') has the right to develop
the said plot and construct a commercial building in its
capacity as the owner. The suit also prayed for a permanent
injunction restraining the respondent ('corporation') from
obstructing the lawful title of the society as owner and in
possession, and the society's right to develop the said plot
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and construct the commercial building. The second appeal is
admitted by order dated 2nd December 2005 on the following
substantial question of law:
i) In the absence of any acquisition of the property
belonging to the Appellant, under the provisions of
Section 78 of the Bombay Provincial Municipal
Corporation Act, 1949 and in the absence of any
agreement under Section 77(1), is the title of the
Appellant divested on the basis of a possession
receipt (Exh. 69)?
ii) Whether the Courts below were justified in
dismissing the suit filed by the Appellant for a
declaration and injunction in the absence of the
title of the Appellant having been extinguished,
either by the acquisition of the property or an
agreement for the transfer of the property by the
Appellant to the Respondents in a manner
recognized by the provisions of the Bombay
Provincial Municipal Corporation Act, 1949?
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The plaintiff's pleadings are summarised as follows:
2. The plaintiff is the cooperative housing society that
purchased the land bearing Survey No. 133, Hissa No. 5B,
admeasuring about 49 R, 6B, admeasuring about 33 R and
7B, admeasuring about 38 R by way of two sale deeds dated
26th December 1967. Thus, the society claimed title and
possession over the entire land, totalling about 1 hectare 20
R. After acquiring the aforesaid land, the society decided to
divide the total land into a number of plots and to allot such
plots to its respective members. Accordingly, the layout plan
was approved, and plots were allotted to the members of the
society. The open space in the layout was intended for
persons who would carry out construction in accordance with
the approved layout and was primarily reserved for a
playground and a recreational area for the occupants. The
open space comprising 10% of the net area of the land in the
layout was for the benefit of the members. However, the
corporation insisted on retaining 10% of the gross total area
as open space. The reservation for the shopping centre was
buildable by the persons entitled to carry out construction on
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the plot allotted, in accordance with the sanctioned layout.
3. The society raised an objection to a letter dated 9 th
September 1968, issued by the corporation, calling upon the
society to hand over the physical possession of the land
admeasuring 12741 square feet, free of cost (equivalent to
10% of the layout area). The officers of the corporation used
coercion to obtain a letter from the then office bearers of the
society regarding the transfer of the area, to the extent of
12741 square feet, free of cost. The society had requested
that the corporation sanction the plan without requiring the
10% open space requirement, on the ground that the layout
provided approximately 4% to 6% open space. By taking
undue advantage of the fact that the members of the society
belonged to a lower or middle-income group, the officers of
the corporation coerced the members and the office bearers
of the society into agreeing to the transfer of the open space
at no cost. Although the possession receipt dated 9 th October
1970 was executed, physical possession was always held by
the society. The possession receipt was executed solely for
the purpose of approving the construction plan. Hence, the
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plaintiff prayed for a declaration that the plaintiff was entitled
to develop the plot reserved for a shopping centre.
The defendant's pleadings are summarised as follows:
4. The corporation denied the suit claim, contending that,
under the regulations, 10% of the net plot area must be open
space. However, the society requested that the said
condition be waived, as it was not possible for the society to
accommodate all members within the available area.
According to the development plan, there was a reservation
of the shopping centre and two DP roads of 40 feet and 60
feet in width on the land belonging to the society. Accordingly,
the society agreed to surrender 10% of the total land area,
free of cost, for the purpose of the shopping centre. In lieu of
the reservation of the shopping centre, the society was
granted a waiver from the requirement to retain 10% of the
land as open space. Thus, in lieu of a waiver of the condition
requiring the retention of 10% of the total area as open
space, the society surrendered the area reserved for the
shopping centre. According to the possession receipt, the
corporation was in possession of the surrendered area.
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SUBMISSIONS ON BEHALF OF THE APPELLANT:
5. Learned counsel for the appellant submitted that
though the erstwhile office bearers executed the possession
receipt, the society has led evidence to show that the actual
physical possession was never handed over. The said land
was reserved for a shopping centre; hence, in view of
Section 126 of the Maharashtra Regional and Town Planning
Act, 1966 ('MRTP'), read with Section 4 of the Land
Acquisition Act, there cannot be any vesting in the
corporation unless the procedure under these provisions was
adopted by the corporation for acquiring the land and taking
over physical possession. No registered agreement was
executed in favour of the corporation for the transfer of the
land. The area under compulsory reservation cannot be
transferred free of cost as a condition precedent to the
sanction of the plan. Therefore, the possession receipt was
void ab initio, and there was no necessity to seek any
declaration that the possession receipt was illegal.
Accordingly, the society prayed for a declaration that it was
the owner and in possession of the said land and is entitled
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to develop it. The corporation's letter dated 18 th November
2003 supported the society's contention that possession was
always with the society.
6. In the trial court, no objection was raised on the point of
limitation. The first appellate court erred in holding that the
suit was barred by limitation. Learned counsel for the
appellant relied upon the following decisions to support his
submissions that, in the absence of any valid procedure
followed for acquisition, the right, title, and interest in the
area reserved would not vest in the corporation.
i. Yogendra Pal and Ors Vs. Municipality Bhatinda
and Anr1
ii. Pt. Chet Ram Vashist(Dead) by Lrs Vs. Municipal
Corporation of Delhi 2
iii. Shree Vinayak Builders and Developers Vs. The
State of Maharashtra and Ors 3
iv. Purnima Talkies Vs. Chief Officer, Dhahanu Nagar
Parishad and Ors 4
1 AIR 1994 SC 2550
2 AIR 1994 SC 430
3 2022 (4) Mh LJ 739
4 2025 (2) ALL MR 468
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7. Learned counsel for the appellant submitted that,
admittedly, no procedure was followed for acquiring the area
reserved for the shopping centre by the corporation. Hence,
there was no vesting in the corporation. Thus, according to
the learned counsel for the appellant, the title to the said land
continued with the society, which was the owner, and it was
entitled to develop the same as a shopping centre in terms of
the reservation on the said land.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
8. Learned counsel for the respondent ('corporation')
supported the impugned judgments and decrees. He
submitted that in accordance with the rules and regulations
prevailing at the relevant time, the society was obligated to
retain 10% of the net plot area as open space. However, the
society couldn't accommodate all its members in the
available area. Hence, as per the conditions laid down by
the corporation, in lieu of surrendering the area reserved for
the shopping centre, the requirement of keeping 10% of the
net plot area as open space was waived, and the society was
allowed to carry out construction without keeping the 10%
area open.
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9. Learned counsel for the corporation submitted that the
copy of the resolution relied upon by the society to support
the contention that the society was in possession was never
exhibited in evidence. The witness of the society admitted in
the cross-examination that no objection was raised on
handing over possession for getting the layout sanctioned.
Therefore, society was estopped from raising any objections
to the possession receipt, as physical possession was
handed over to the corporation. No evidence was produced
to support the society's contention that the physical
possession was not handed over. Witness no. 1, examined
by the society, had admitted that she had no personal
knowledge about the actual handing of the possession at the
relevant time. Witness no. 2, examined by the society, failed
to produce any document evidencing his membership in the
society. Hence, there was no sufficient evidence on the
record to support the society's claim that physical possession
was with the society.
10. According to the learned counsel for the corporation, if
the corporation had not waived the condition of keeping 10%
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of the space open, the society would not have had valid or
sufficient FSI for carrying out the construction to
accommodate all its members. Hence, once the society
surrendered the land in lieu of a waiver of the condition to
keep 10% of the area open, the society would not be entitled
to claim ownership of the area validly surrendered in favour
of the corporation.
11. Learned counsel for the corporation submitted that the
society had produced the notice dated 18 th November 2003
in the appeal to support the contention that the society was in
possession of the suit property; however, it was not admitted
in evidence and was not proved. Hence, there was no
material on record to support the society's contention that the
physical possession was with the society.
12. As to the findings of the first appellate court that the
suit was barred by limitation, the learned counsel for the
corporation submitted that the society had passed a
resolution in 1968 to accept the sanctioned plan. The new
members raised new contentions as the price of the land has
risen. Hence, a false claim is raised in the suit arising from
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the price hike. Learned counsel for the corporation, therefore,
submits that once the society had handed over physical
possession of the said land in lieu of waiver of the condition
to keep 10% of the net area open, the area under reservation
for the shopping centre was validly handed over to the
corporation and is vested with the corporation.
13. To support his submissions, learned counsel for the
corporation relied upon the decision of the Division Bench of
this court in the case of Jayshakti Co-operative Housing
Society Ltd Vs Pune Municipal Corporation and Others 5 and
the decision of the Hon'ble Apex Court in the case of
Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust,
Virudhunagar Vs. Chandran and Others 6. He submitted that
this court, in Jayshakti Co-operative Housing Society Ltd ,
held that after furnishing an undertaking, handing over
possession and taking benefit of the development
permission, the society was not entitled to raise a grievance
after a lapse of unexplained delay. He submitted that, in the
present case, after handing over possession by executing a
5 Writ Petition No. 4915 of 2006, dated 20th March 2014
6 (2017) 3 SCC 702
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possession receipt and availing the benefit of the waiver of
the condition to retain 10% of the area as open space, the
society would not be entitled to claim any right, title, or
interest in respect of the surrendered area.
14. Learned counsel for the corporation submitted that in
the decision of Executive Officer, Arulmigu Chokkanatha
Swamy Koil Trust, Virudhunagar, the Hon'ble Apex Court
held that once the facts are admitted, they need not be
proved by adducing independent evidence. He therefore
submits that in the present case, once the society admitted
the possession receipt, there was no reason to hold that the
society was in physical possession of the property. Hence,
learned counsel for the corporation submits that, in view of
the surrender of the land reserved for the shopping centre to
avail of extra area for construction, the right, title, and interest
in the surrendered area vest in the corporation. Since the
physical possession was also handed over, the right, title,
and interest vested in the corporation; hence, for want of any
procedure for acquiring the land, the vesting in favour of the
corporation, in lieu of the handing over of physical
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possession against availing the benefit for construction,
cannot be disturbed. Hence, both the questions of law must
be answered in favour of the corporation.
LEGAL PRINCIPLES:
15. The Apex Court in Yogendra Pal vs. Municipality,
decided a group of appeals and a writ petition that raised a
common question of law, whether the provisions of Section
192(1)(c) of the Punjab Municipal Act, 1911 and the
corresponding provisions of Section 203(1)( c) of the Haryana
Municipal Act, 1973 for compulsory transfer of the land to the
Municipal Committees without payment of compensation, are
valid. The Apex Court held that when the land was
transferred under Section 192(1)( c) of the Act, the transfer
was nothing short of acquisition, divesting the landowner of
all his rights as owner of the land. The Apex Court held the
provisions of Section 192(1)(c) to be violative of Article 14 of
the Constitution of India as under the said provision, the
Municipal Committee which prepared the town planning
scheme was given absolute power of acquiring the land
without payment of compensation if the land acquired is up to
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25 per cent of the holding of the landowner and of payment
of compensation according to the discretion of the Municipal
Committee without laying down the principles for payment of
compensation if the land acquired was above 25 per cent of
the holding.
16. In Pt. Chet Ram Vashist the question of law that arose
before the Apex Court for consideration was whether the
Municipal Corporation of Delhi, in the absence of any
provision in the Delhi Municipal Corporation Act, 1957, was
entitled to sanction the plan for building activities with the
condition that the open space for parks and schools be
transferred to the Corporation free of cost. The Apex Court
held that in the absence of any statutory provision vesting
such land in the Corporation, it cannot become the owner of
it. After referring to Section 313 of the Delhi Corporation Act,
the Apex Court held that the power to accord sanction on
conditions cannot be construed to mean that the Corporation
in the exercise of placing restrictions or imposing conditions
before sanctioning a layout plan can also claim that it shall
be sanctioned only if the owner surrenders a portion of the
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land and transfers it in favour of the Corporation free of cost.
It was held that the resolution of the Standing Committee,
that the area specified in the layout plan for the park and
school shall vest in the Corporation free of cost, was not in
accordance with law.
17. In Shree Vinayak Builders and Developers, the Full
Bench of this Court decided the reference on the questions
regarding modes of acquisition provided under section
126(1)(a) and (b) of the MRTP Act, and whether the land
owner can withdraw his request for TDR (Transferable
Development Rights) and refuse or decline to surrender the
land. The Full Bench also decided the question whether the
approval by the authorities concerned for the grant of TDR in
lieu of monetary compensation should be treated as a step in
the acquisition of land and thereby as commencing the
proceedings for the acquisition of the land.
18. The Full Bench of this Court held that Section 126(1)(a)
and (b) of the MRTP Act has to be by consensus between
both parties and not only at the option of the Acquiring
Authority. It is held that mere approval of the request of the
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land owner to grant of monetary compensation or grant of
TDR/FSI in lieu of compensation by itself will not always
result in a concluded contract, and the question would have
to be determined in the facts and circumstances of each
case. Therefore, the landowner may withdraw his request
and refuse to surrender the land, provided that no contract
has been concluded between the parties. It is further held
that the mere grant of approval or passing of a resolution by
the authorities concerned for the grant of TDR/FSI in lieu of
monetary compensation is not a step for the acquisition of
land, thereby commencing the proceedings for the
acquisition of land, unless it concludes the contract between
the parties.
19. In Purnima Talkies, the challenge was to the order of
the Corporation, which refused to grant compensation to the
petitioner as prayed for and holding that the petitioner is
entitled only to TDR/FSI rights. This Court held that
compensation has always been considered to be an integral
part of the acquisition process and in the absence of
following due process of law as prescribed under Section
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126 of the MRTP Act, the option would be by payment of
compensation, to be determined and paid in accordance with
the applicable laws.
20. In Jayshakti Cooperative Housing Society, the prayer
was for the grant of compensation in respect of the area
reserved for the development plan road and in the
alternative, for a declaration that the reservation stands
lapsed. The Corporation rejected the purchase notice under
Section 127 of the MRTP Act on the ground that the layout
plan had been sanctioned on the condition and undertaking
of the society that the property would be handed over to the
Corporation free of cost. Accordingly, possession was
handed over, and a road was constructed, which was
maintained by the corporation. The society contended that at
no stage had it given any undertaking, and, in any event, the
condition contained in the development permission was
illegal and unenforceable. The society contended that,
although the road had been constructed and was being
maintained by the corporation, the corporation had never
taken formal possession. Hence, it was the petitioners'
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contention that the corporation should pay compensation at
the market value or at FSI, and, in the alternative, declare
that the reservation stands lapsed and the possession be
restored to the society. This Court held that the society had
taken advantage of the development permission, which was
granted based on the undertaking that the area would be
handed over free of cost. The society had not challenged the
clause in the development permission for over 30 years, and
even in the petition, no relief was sought against that clause.
There was no valid explanation for the delay and latches.
This court therefore refused to grant any relief.
21. In Arulmigu Chokkanatha Swamy Koil Trust, the Apex
Court held that, since the plaintiff was not found to be in
possession and had sought only declaratory relief, the suit
was not maintainable and was rightly dismissed by the trial
court.
ANALYSIS AND CONCLUSIONS:
22. In the present case, the suit is filed for a declaration
that the plaintiff has the right, title, and interest, and the
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authority to develop an area of the land surrendered in favour
of the corporation. This surrender was in lieu of the waiver of
a condition requiring the retention of 10% of the net plot area
as open space. This area was equivalent to the land
reserved for a commercial building. The society couldn't
accommodate all the members of the society in the available
area; hence, as per the conditions laid down by the
corporation, in lieu of surrendering the area reserved for the
shopping centre free of cost, the requirement of keeping 10%
of the net plot area as open space was waived, and
construction was permitted. Accordingly, the society
submitted an undertaking for surrendering the area free of
cost, and a possession receipt was executed on 9 th October
1970, handing over possession of 12741 square feet,
equivalent to the 10% compulsory open space.
23. Accordingly, the society's layout was sanctioned by the
corporation, and construction was permitted without retaining
10% of the net area as open space. The society did not
challenge this condition for the surrender of the area free of
cost. It was only after 28 years in the suit filed on 30 th
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September 1998, that the society challenged the possession
receipt and surrender of the land free of cost. The society
also prayed for an injunction to protect its title and
possession, contending that although a possession receipt
was executed, the physical possession was never delivered.
24. The plaintiff's prayer was for a declaration that the
society has the right to develop the said plot and construct a
commercial building in its capacity as the owner. The suit
also prayed for a permanent injunction restraining the
corporation from obstructing the lawful title of the society as
owner and in possession, and the society's right to develop
the said plot and construct the commercial building.
25. The trial court held that it was not disputed that the
possession receipt was executed in 1970 and that the
society held title to the suit property, but failed to prove
possession of the said land. The reservation of the shopping
centre was also not in dispute. The trial court disbelieved the
society's contentions that the possession receipt was
executed by coercion and undue influence. In view of the
possession receipt and the surrender of the land area for
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reservation, the trial court held that the corporation would be
entitled to possession without payment of any monetary
consideration. The society's contention that they would be
entitled to develop the suit land was not accepted. The
corporation's contentions that the society voluntarily
surrendered 10% of the land in lieu of a waiver of the
condition to keep 10% of the area open were accepted by
the trial court, based on the evidence on record. Hence, the
suit was dismissed. In the appeal preferred by the society,
the findings of the trial court were confirmed, and the
dismissal of the suit was upheld.
26. The legal principles in the Apex Court's decision in
Yogendra Pal were regarding the provisions of the Punjab
Municipal Act, 1911 and the corresponding provisions of the
Haryana Municipal Act, 1973, for compulsory transfer of the
land to the Municipal Committees without payment of
compensation. In Pt. Chet Ram Vashist the question of law
that arose before the Apex Court for consideration was
whether the Municipal Corporation of Delhi, in the absence of
any provision in the Delhi Municipal Corporation Act, 1957,
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was entitled to sanction the plan for building activities with
the condition that the open space for parks and schools be
transferred to the Corporation free of cost. The Apex Court,
therefore, modified the order by directing that the Corporation
was at liberty to have the land transferred in its favour upon
payment of the market price prevailing on the date the
sanction to the layout plan was accorded. In the present
case, the question concerns the validity of the acquisition in
terms of Section 126 of the MRTP Act, which sets out the
modes of acquisition. Hence, the aforesaid legal principles
would not apply to the present case.
27. The Full Bench of this Court in Shree Vinayak Builders
and Developers held that under Section 126(1)(a) and (b) of
the MRTP Act mere approval of the request of the land
owner to grant of monetary compensation or grant of
TDR/FSI in lieu of compensation by itself will not always
result in a concluded contract, and the question would have
to be determined in the facts and circumstances of each
case. In Purnima Talkies, this Court held that compensation
has always been considered to be an integral part of the
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acquisition process as prescribed under Section 126 of the
MRTP Act. In Jayshakti Cooperative Housing Society, this
Court refused to grant any relief because the society had
taken advantage of the development permission, which was
granted on the condition that the area would be handed over
free of cost, and the society had not challenged the clause in
the development permission for over 30 years.
28. In the present case, there is no dispute that the society
took advantage of obtaining construction permission in lieu of
the waiver of the condition requiring the retention of 10% of
the area open. Thus, it was an agreement with concluded
terms between the society and the corporation that the
society shall surrender the area equivalent to 10% of the
compulsory open space free of cost for utilisation of the
reservation of the commercial building, and in lieu of the
surrender, the corporation shall sanction the layout and
permit construction enabling the society to accommodate all
its members.
29. The language of Section 126 of the MRTP Act indicates
that the corporation need not undergo the rigours of the
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acquisition process, as it permits the corporation to acquire
land reserved for a public purpose specified in the
development plan by an agreement to pay an amount agreed
upon. FSI has monetary value. Hence, acquisition of the
land reserved under the sanctioned development plan, by an
agreement to grant FSI or development rights, is a valid
acquisition for a consideration permissible under Section
126(1)(a)(b) of the MRTP Act. Thus, by applying the legal
principles settled by this Court in the decisions discussed in
the above paragraphs, an agreement between the
corporation and an owner to surrender the land reserved for
public purposes in the development plan, free of cost but in
lieu of the benefit of a higher FSI (Floor Space Index) or
development rights, would constitute a valid acquisition of the
land by an agreement in terms of Section 126 of the MRTP
Act. Once the acquisition is valid as contemplated under
Section 126 of the MRTP Act and possession is handed over,
the land would vest in favour of the corporation.
30. There is no dispute that in the present case, an area
was reserved for a shopping centre from the original plot
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owned by the society. Hence, the undertaking by the society
to surrender land equivalent to the area reserved, and in lieu
of the waiver of the condition to retain 10% of the total area
as open, constituted an agreement for the acquisition of the
reserved land as contemplated under Section 126 of the
MRTP Act. Hence, the condition of the surrender of land was
not in terms of acquisition as contemplated under Section 77,
read with Section 78 of the Maharashtra Municipal
Corporation Act 1949. The provisions of sections 77 and 78
of the said Act of 1949 are applicable when the
Commissioner acquires land necessary for any of the
purposes of the said Act, irrespective of whether the same is
reserved under the sanctioned development plan or not.
31. In the present case, the acquisition is for the land
reserved for commercial building under the sanctioned
development plan. The area equivalent to the land under
reservation was surrendered to obtain permission to
construct, without retaining 10% of the area as open space,
to enable the society to accommodate all its members. Thus,
it is clear that, but for the waiver of the condition requiring the
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10% area to remain open, the society would not have been
able to obtain construction permission to accommodate all its
members. Therefore, it cannot be said that the surrender of
the area was without any consideration. The consideration
may not be in the form of money, but it is in the form of
permission to construct in an area higher than permitted.
Consequently, the calculation of FSI was also in proportion to
the area, higher than it was otherwise permissible. FSI can
be valued in monetary terms. Therefore, in the present case,
the acquisition was for a valid consideration. Accordingly, the
first question of law is answered by holding that in the
present case, the acquisition of the reserved area is in terms
of the agreement as contemplated under Section 126 (1) (a)
(b) of the MRTP Act and the handing over of possession as
recorded in the possession receipt (Exhibit 69). Therefore,
the title of the Appellant (society) was validly vested in favour
of the Corporation.
32. The declaratory and injunctive releifs claimed by the
society are discretionary. The Hon'ble Apex Court in
Executive Committee of Vaish Degree College v. Lakshmi
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Narain7, held that while decreeing the plaintiff's suit, it is
necessary to consider whether it is a fit case in which the
discretion should be exercised in favour of the plaintiff. It is
held to be manifestly clear that the relief of declaration and
injunction under the provisions of the Specific Relief Act is
purely discretionary, and the plaintiff cannot claim it as of
right. In paragraph 27, the Apex Court observed as under:
"The relief has to be granted by the court according to
sound legal principles and ex debito justitiae. The court
has to administer justice between the parties and cannot
convert itself into an instrument of injustice or an engine of
oppression. In these circumstances, while exercising its
discretionary powers the court must keep in mind the well
settled principles of justice and fairplay and should
exercise the discretion only if the ends of justice require it,
for justice is not an object which can be administered in
vacuum."
33. In the present case, under a concluded contract
between the society and the corporation, the society
surrendered the area equivalent to 10% of the compulsory
open space free of cost for utilisation of the reservation by
the Corporation, and in lieu of the surrender, the corporation
7 (1976) 2 SCC 58
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1-SA-1400-2005.doc
sanctioned the layout for an higher area than otherwise
permissible and permitted construction with a FSI to enable
the society to accommodate all its members. The society,
after taking advantage of the waiver of the condition requiring
retention of 10% of the area to be kept open, challenged the
condition for sanctioning the layout only in the suit filed 28
years after surrendering the land. Therefore, both courts
have rightly refused to exercise the discretion in favour of
society. Hence, the second question of law is answered by
holding that both Courts were justified in dismissing the suit
filed by the Appellant for a declaration and injunction.
34. For the reasons recorded above, the impugned
judgments and decrees need no interference. Hence, the
Second Appeal is dismissed.
(GAURI GODSE, J.)
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2026.01.05
16:12:07
+0530
Page no. 29 of 29
