Whether a person can claim that his construction is authorized as per deemed permission if his construction is on open space?

 Deemed permission to an application under section 44 of  MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.

    The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011

Decided On: 21.10.2011

The Court on its own motion and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde & M.N. Gilani, JJ.

Author: S.A. Bobde, J.

Citation : 2012 (1)MhLj 232

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Whether Municipal Corporation can permit layout owners to use open spaces for further development?

 Once such layout is finalized, if the development takes place, the

layout virtually becomes unalterable. The plot in such layout are

sold and are developed by individuals. The land reserved for

road and open spaces are utilized for such purposes and none

else. In an ideal case, the plot owners would form a cooperative

society and using contributed funds they would keep spaces for

recreation, clean and tidy and usable for recreation. They may

develop garden or play ground on such lands. The building bylaws also contemplated that such plots would be handed over to the Municipal Corporation so that they would not only protect

them but would also develop them as play grounds or gardens.

It is not only the plot holders in the locality but even outsiders

who would come in this locality would be entitled to use the land

for its designated purpose such as; road and open spaces for

recreation. In other words, right of user of this open spaces and

roads accrued to public at large. No one can interfere in such

right. In view of this also, the attempt of the Municipal

Corporation to allow the layout owners to use open spaces for

further development was inappropriate and illegal. The

resolution of the Municipal Corporation for the reasons above,

cannot be said to be lawful. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO. 5044 OF 1999

 Vasantrao s/o Vinayakrao Deshmukh Vs Aurangabad Municipal Corporation

CORAM : A. V. NIRGUDE & V. L. ACHLIYA, JJ.

DATED : MARCH 5TH, 2015.

 (PER A. V. NIRGUDE, J.)

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Whether construction is permissible in open spaces left in approved building layout plans in residential zone?

     The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions.  {Para 22}

23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.                                  Supreme Court

JUSTICE MOHAN M. SHANTANAGOUDAR JUSTICE R. SUBHASH REDDY

Anjuman E Shiate Ali & Anr. Vs. Gulmohar Area Societies Welfare Group & Ors. etc.

CIVIL APPEAL NOS. 6216-6217 OF 2019

17th April 2020

Citation: 2020 SCC OnLine SC 373,2021(1) ALL MR 367 (S.C.)

Author: R. SUBHASH REDDY, J.

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Whether Municipal corporation can put condition to transfer open space to it free of costs while sanctioning layout plan?

Property - consideration - Delhi Municipal Corporation Act, 1957 - whether municipal corporation of Delhi in absence of any provision of Act entitled to sanction plan for building activities with condition that open space for parks and schools be transferred to Corporation free of cost - Corporation by virtue of land specified as open space may get right as custodian of public interest to manage it in interest of society in general - right to manage as local body not same as claim transfer of property to itself - resolution of Committee to transfer land in colony for park and school was order of transfer without there being sanction for same in law - Corporation have right to manage land which was earmarked for school, park etc. - Corporation not have any right to change user of land which shall be beneficial enjoyment of residence of colony - open to Corporation to get land transferred in its favour after paying market price as prevalent on date when sanction to layout plan accorded.

Equivalent Citation: AIR1995SC430, JT1994(7)SC159, 1994(4)SCALE695, (1995)1SCC47, [1994]Supp5SCR180

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 319 of 1976

Decided On: 26.10.1994

Pt. Chet Ram Vashist  Vs.  Municipal Corporation of Delhi

Hon'ble Judges/Coram:

R.M. Sahai and N.P. Singh, JJ.

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Leading judgment in respect of surrender of open space to corporation in lieu of development rights

Equivalent Citation: 2008(5)ALLMR815, 2008(110)BOMLR3204

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 934/94, 967/92, 

Decided On: 29.08.2008

 Friends Cooperative Housing Society Limited 
Vs.
 The Nagpur Improvement Trust 

Hon'ble Judges/Coram:
Anoop V. Mohta and C.L. Pangarkar, JJ.

Property - Allotment of land - Agreement to develop suit land - Petitioner co- operative housing society challenged the action of allotment of suit land by Respondent to public institutions and public trust as public utility plots on ground that a clause in an agreement entered into between Petitioner and Respondent in lieu of said suit land was void - Hence, present Writ Petitions - Held, party to an agreement cannot be allowed to approbate and reprobate - In the present case, when the parties entered into agreement, they were fully aware of the nature of transaction, conditions and respective obligations - No objection raised at any point of time while entering into such agreement and even thereafter when Petitioners and such other persons who based upon the said agreement got the benefit out of the same — Writ Petitions dismissed

Property - Allotment of land - Agreement to develop suit land - Principle of waiver - Respondents contended that Petitioners have waived their right, if any, at the time of entering into agreement with Respondent and so doctrine of waiver was applicable to present case - Held, waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct - In the present case, both the parties have altered their position - Petitioners have already got the benefit out of the same - Therefore, this is a case of express waiver - Right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein - Statutory right, however, may also be waived by his conduct - In totality, therefore, the Petitioners through their conduct have waived their rights — Writ Petitions dismissed

Property - Allotment of land - Absence of consideration - Petitioner contended that the action of the Respondent in advertising and intending to transfer on allotment of public utility land without there being any title, was void and illegal for want of consideration - Held, merely because there are no sections referred in the agreement, that itself cannot be reason that there was no consideration paid and/or the terms and conditions are vague, unclear, unequal and gives unbriddled and arbitrary powers to Respondent/NIT to utilise/use and allot the said utility plots, as per the layout for the other public purposes pursuant to the scheme - Writ Petitions dismissed

Limitation - Expiry of limitation period - Undue delay - Respondent challenged Writ Petition by Petitioner on ground that Writ Petition was not maintainable on account of unexplained delay by Petitioner to file the petition - Held, ratio in Prem Singh and Ors. v. Birbal and Ors. applied — With respect to both void, as well as voidable transactions, the action has to be brought within the period of limitation - In the present case, the Petitioner has invoked Article 226 and 227 of the Constitution of India and raised these challenges after more than 11 years - Limitation would not be more than three years - Petitions, therefore, suffer from grave delay which is not explained at all - Writ Petitions dismissed

“Party to an agreement cannot be allowed to approbate and reprobate.”

“Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct.”

“Merely because there are no sections referred in the agreement, that itself cannot be reason that there was no consideration paid and/or the terms and conditions of the agreement are vague.”

“With respect to both void, as well as voidable transactions, the action has to be brought within the period of limitation.”

Anoop V. Mohta, J.

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Whether municipal corporation has right to get open space transferred to it while sanctioning layout?

 But, the question is, does it entitle the
Corporation to claim that the land so specified should be transferred to
the authority free of cost. That is not made out from any provision in the
Act or on any principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to manage
as a local body is not the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the transferor ceases to
be owner of it and the ownership stands transferred in the person in
whose favour it is transferred. The resolution of the Committee to transfer
land in the colony for parks and school was an order for transfer without
there being any sanction for the same in law. Thus, by a mere resolution
these lands could not be transferred and there has to be sanction for the
same in law.” (see para 6 on page 435).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3241 OF 2012
Shantaram Narayan Raut,

versus
The Additional Collector, Nashik.
 Citation: 2012(6)ALLMR527, 2013(2)BomCR341, 2012(6)MhLj790

CORAM : S.C.DHARMADHIKARI, J.
Date : 04th September, 2012.

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Whether municipal corporation can acquire ownership right in open space of layout which was given to it for management?

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 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.

Supreme Court of India

Pt.Chet Ram Vashist vs Municipal Corporation Of Delhi on 26 October, 1994

Equivalent citations: 1995 AIR 430, 1995 SCC (1) 47

JT 1994 (7) 159 1994 SCALE (4)695

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Whether it is mandatory to keep open space in layout as open?

The Petitioner cannot transfer the land or
use the same in any other manner except by keeping it
as an open space. The aforesaid position flows from the
decision of this Court in Pt. Chet Ram Vashist (supra)
wherein such a conclusion had been reached by this
Court in a largely similar set of facts.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 6383
of 2012
( Arising out of SLP (Civil)No. 29081 of 2011)
M/s. Real Estate Agencies

Versus
Govt. of Goa & Ors.
Dated;10th September, 2012.
RANJAN GOGOI, J.

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Whether municipal corporation can direct land owner to surrender open space to it while sanctioning layout?

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 layout 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 layout plan is not contrary to any provision of the Act or the rules framed by it. For instance a person submitting a layout 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 layout 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 tubewells, school and park in its favour free of cost was depriving the owner of his property and vesting it in the Corporation against law. 

Supreme Court of India

Pt.Chet Ram Vashist vs Municipal Corporation Of Delhi on 26 October, 1994

Equivalent citations: 1995 AIR 430, 1995 SCC (1) 47,JT 1994 (7) 159 1994 SCALE (4)695

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Whether surrender of land by land owner to govt at time of sanctioning of layout whether valid?

 We have noted that even otherwise, a surrender of private land for public purpose and/or acquisition of portion of land for public purpose is not an unknown phenomenon. In M.C. Mehta v. Union of India and Ors. : (1996)4SCC351 , the Supreme Court has issued direction that land which would become available on account of shifting and relocation of hazardous industries from the city of Delhi shall be used in the manner as provided for in the said judgment, thereby the land owner was declared to develop a portion of the said land after surrendering and deducting to the Delhi Development Authority, a portion of the land for development of green belts and other places. The land which was required to be surrendered was upto 68%. The Apex Court rejecting the case of landowners for compensation in lieu of surrender of portion of land declined the said compensation on the ground that the FSI permitted to be used on the land retained by the owner was 1.5% of the permissible FSI and hence the same was a consideration for surrendering the land. (M.C. Mehta v. Union of India and Ors. MANU/SC/0870/2000 : (2000)5SCC525 ). The Apex Court in Bombay Dyeing & Manufacturing Company Limited v. Bombay Environmental Action Group and Ors. MANU/SC/1197/2006 : AIR2006SC1489 has upheld the Clauses of the Development Control Rules, 1958 applicable to Bombay which provide for surrender of the land if the landholder seeks to develop the remaining land for other purposes as provided under the Rules. The decision as relied in Vrajlal Jinabhai Patel, since deceased through his L.Rs. Smt. Jagrati Vrajlal Patel and Anr. v. State of Maharashtra and Ors. MANU/MH/0948/2002 : 2003(3) Mh.L.J. 215 to submit that an ownership in open space under the layout could be vested or transferred to the Municipal Council is not applicable on facts and circumstances as referred above. This is not a case also where there is any question of blocking and encroachment upon the open space and plot or area of the locality. The respondents State and/or NIT are bound to stick to the development plan and scheme as announced. The Apex Court in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Limited and Ors. MANU/SC/7706/2007 : AIR2007SC2458 while dealing with the aspect of Town Planning and Articles 300A, 14 & 17 of the Constitution of India has also observed:

...The courts must make an endeavour to strike a balance between the public interest on the one hand and protection of a constitutional right to hold property, on the other. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-a-vis the private interest, on the one hand, and the effect of lapse and/or positive inaction on the part of the State and other planning authorities, on the other.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.


WRIT PETITION NO. 934 OF 1994.

Friends Cooperative Housing Society
Limited, 
V

 The Nagpur Improvement Trust, through
its Chairman,

CORAM: ANOOP V. MOHTA & C.L. PANGARKAR, JJ.

AUGUST 29, 2008.
Citation: 2008(5)ALLMR815, 2008(110)BOMLR3204

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Whether ownership in open space can be vested or transferred to Municipal Council on payment of compensation of Re. 1/- ?

Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 183 - Standardised Building By-laws and Development Control Rules for 'A' Class Municipal Councils of Maharashtra - By-law No. 14 - Constitution of India, 1950 - Article 300-A - Open spaces - Rule provides for laying out new streets and not open spaces - Municipal Council has power only to acquire land under streets and not open spaces - No person can be deprived of his property save by authority of law.

Held:

Rule 14 appears to have been framed in furtherance of Section 183 of the Act which relates to laying out or making of new streets. It nowhere provides for the open spaces. Therefore, the power, if any, of acquiring the land under the streets is only contemplated under Section 183. Acquisition of open spaces is not contemplated under Section 183. Rule 14.3 which is a delegated legislation cannot, confer a power of acquisition of the open space under the lay out. Under Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law. The authority of law means by or under any law made by a competent Legislature. No law made by the Legislature was shown under which the ownership in the open space could be vested or transferred to the Municipal Council whether by payment of compensation of Re. 1/- or otherwise.

Bombay High Court

Vrajlal Jinabhai Patel, Since ... vs State Of Maharashtra And Ors. on 29 August, 2002

Bench: B Marlapalle, D Karnik

Citation: 2003(4)ALLMR299, 2003(105(1))BOMLR223, 2003(3)MhLj215

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Whether ownership in open space is automatically transferred to Municipal Council on passing of lay out?

The open space is meant to act as lungs in the city and is for the use of all the plot holders in the lay out. Unless the 10% of the total lands is provided as an open space, the lay out is not sanctioned and without the lay out, no construction can be made. The title in the open space is not transferred from the petitioner to the Municipal Council merely on passing of the lay out. When, however, the petitioner transfers the plots in the lay out, the purchasers of the plots get a right to use in common with the original owner so long as he retains on or more plots -- the open space, because the plots in the lay out became buildable only on sanctioning of the layout. We are unable to agree with the contention of Shri Joshi that the ownership in the said open space is automatically transferred to the Municipal Council on passing of the lay out.

Bombay High Court

Vrajlal Jinabhai Patel, Since ... vs State Of Maharashtra And Ors. on 29 August, 2002

Bench: B Marlapalle, D Karnik

Citation;2003(3)MHLJ215,Bom,2003(4)ALLMR299, 2003(105(1))BOMLR223,

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Whether vesting of land give an absolute right to municipal corporation to transfer said land to private person?

An analysis of Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 would make it clear that an approved and sanctioned plan

under the Rules has a statutory character. No deviation from the approved plan is permissible unless the plan is revised under Rule 32 on the ground as provided therein. Such scheme/ plans make a provision for open space/ spaces for park, garden etc. intended to be used by the public, an area for providing educational facility or any other facility which is deemed necessary. Roads and public streets arc also provided as per the standards. From the Rules, it is also clear that the site/sites of open space are intended to be used by the public and [hey form a different category from the area reserved for educational facilities or any other facility. There is a basic distinction in two categories. In case of open space falling in the first category, ownership shall vest in UIT and now in JDA after the approval of sub-division of plots as provided in Sub-Rule (2) of Rule 30, while the area reserved for educational facilities or any other facility falling in the second category remains in the ownership of the developer. In the latter case, the developer can transfer the site/area to any private person or body for the same purpose for which the area was reserved. To illustrate, if an area is reserved for a school in the approved plan, the same can be transferred by the developer to any private person or body for the purposes of establishing a school. But, an open space or spaces intended to be used by the public in general stand dedicated to the public for common use and must, therefore, remain with the State or its instrumentalities, such as JDA, Municipal Board/Council/Corporation or any other public authority. Therefore, the areas of open space reserved in the approved plan, though are vested in UIT or JDA, but the same cannot be allotted to any private person or body. Their user cannot be changed or converted by UIT or JDA. Such open space/spaces are meant for the use of a park, garden, lawn or any other form of open space intended to be used by the public. The vesting of such area in JDA or UIT is for a specific purpose i.e. to develop and maintain such areas for the purpose they are earmarked or reserved in the approved scheme. This vesting does not give an absolute right to UIT or JDA to allot/transfer such area to a private person or body for establishment of a school. Such deviation is not contemplated or permissible as per the Rules, as an open space is dedicated to the public and is intended to be used by the public. Hence, the site of open space could not be allotted by the JDA to the Modern School.

Rajasthan High Court

Nizam And Ors. vs Jaipur Development Authority And ... on 12 April, 1993

Equivalent citations: AIR 1994 Raj 87, 1993 (2) WLC 169

N.L. Tibrewal, J.

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