Wednesday, 15 December 2021

Whether Municipal Corporation can lease out open space vested in it in layout to third party?

 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. {Para 12}

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.

Bombay High Court
Punjabrao Srihari Wadje And Anr vs Municipal Corpn. Aurangabad Thr. ... on 29 February, 2016
Bench: R.M. Borde, A.I.S. CHEEMA, JJ.
Writ Petition No.4208/1998
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