( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3621 OF 2008 Mishrilal Onkardas Joshi and Company, Jalgaon through its partners 1. Shri Dinesh Gajanan Joshi, R/o 195, Navi Peth, M.G. Road, Jalgaon. 2. Dr. Ulhas Yeshwant Bendale, R/o Yeshwant Hospital, Ring Road, Jilha Peth, Jalgaon. PETITIONERS VERSUS 1. The State of Maharashtra, through Principal Secretary, Urban Development Department, Maharashtra State, Mantralaya, Mumbai. 2. The Commissioner, Jalgaon Municipal Corporation, Jalgaon, R/o Near Neharu Chowk, Jalgaon. 3. Assistant Director, Town Planning, R/o B.J. Market, Jalgaon. 4. Deputy Director, Town Planning, Nasik Division, Nasik, R/o Nasik Road, Central Building, Nasik. 5. Director, Town Planning, State of Maharashtra, Pune. 6. The Collector, Jalgaon, District Jalgaon. ( 2 ) 7. Sunil s/o Premkumar Nahate, R/o Near Bhaskar Market, Jalgaon. 8. S.B.O. Augustin, R/o Vanara Colour Laboratory, Deshpande Market, Near New Bus Stand, Jalgaon. RESPONDENTS ..... Mr. P.M. Shah, Senior Counsel, instructed by Mr. S.H. Tripathi, advocate for the petitioners. Mr. K.M. Suryawanshi, AGP for respondents No. 1, 3 to 6. Mr. P.R. Patil, advocate for respondent No. 2. Mr. Manoj Shinde, advocate holding for Mr. P.B. Pawar, advocate for respondents No. 7 and 8. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th July, 2009] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties and learned A.G.P. 2. By this petition, the petitioners impugn communication dated 17th March, 2006, issued by the respondent No. 4 – Deputy Director, Town Planning, Nasik Division, consequent communication dated 4th April, 2006, ( 3 ) issued by the respondent No.2 – Municipal Commissioner and order dated 21st January, 2008, rendered by the learned Additional Principal Secretary, Urban Development Department, State of Maharashtra in appeal No. TPS-3506/908/PR.KR-27/07/NAVI-9. The petitioners further seek direction to the respondents No. 2 to 6 to grant permission for the revised development plan submitted by them and allow them to develope the extra open space as sought. 3. There is no dispute about the fact that originally, land survey No. 413 situated at Mehrun, admeasuring 23 acres 14 gunthas, was owned by one Mohammad Saheb Balesaheb Shaikh. At the relevant time, it was an agricultural land situated in small village Mehrun, which is in the outskirts of the township of Jalgaon. It is undisputed that subsequently, the area of Mehrun village was annexed with the city area of Jalgaon Municipal Corporation and now it is within the limits of Municipal Corporation. It is uncontroverted that the petitioners purchased said land survey no. 413 from Mohammad Saheb Balesaheb Shaikh by virtue of a ( 4 ) registered sale-deed dated 17-08-1973. As on the date of sale transaction, application submitted by Mohammad Saheb Balesaheb Shaikh for conversion of the agricultural land to non-agricultural use and for permission to lay out plan submitted by him was pending before the competent authority. He alienated the land to obtain the necessary permission and develope the said land. The petitioners purchased the land for development and converted the same to non-agricultural use. 4. The land in question is situated on Jalgaon- Sirsoli road. The petitioners have purchased the land consisting of 87,600 sq.mtrs. (8.76 hectares). The lay- out plan was sanctioned by the competent authority. The fact that open space was reserved to the extent of 15.13 per cent is also undisputed. The open space which was left at six (6) places, including a bigger chunk of land in the middle, is of 13,512.63 sq.mtrs. i.e. 1,45,450 sq.feet. The 10 per cent of the open space as required under the relevant bye-laws of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, ( 5 ) 1965 (for short, “the MMC Act”) comes to 8760 sq.mtrs. i.e. 94,307 sq.feet. 5. The petitioners submitted revised development plan for sanction of the lay-out. They desired utilization of extra 5% of the open space for purpose of plotting. The petitioners have admittedly sold 158 plots to various purchasers as per the earlier sanctioned lay- out plan. The respondent No. 4 – Deputy Director of Town Planning, Nasik Division communicated to the petitioners that the request for revised lay-out plan for development of the 5 per cent extra open space could not be considered for the reason that the proposal was not accompanied by consent of all the plot owners. The said communication dated 17-03-2006 referred to the Government Circular dated 14-11-1991 which contemplates consent of all the plot holders for the purpose of such revised lay-out plan, if the development is sought in respect of the open space. The petitioners, therefore, preferred an appeal which came to be dismissed by the learned Additional Principal Secretary vide the impugned order dated 21st January, 2008. ( 6 ) 6. Heard learned counsel for the parties and learned A.G.P. 7. Mr. P.M. Shah would point out from the bye-law No. 14.2 that only 10 per cent of the total area of the land is required to be reserved for open space. The bye- law No. 14.2 of the MMC Act reads as follows : “14.2. Open Spaces. - In any layout or sub- division of land admeasuring 0.4 Ha. Or more for residential purpose and 0.8 Ha. Or more for industrial purpose. 10 per cent of the total area of land shall be reserved for open space which shall as far as practicable be located in one central place. Out of such open spaces, an area to the extent of 10 per cent may be allowed to be constructed by a Ground Floor Structure for the purpose of allied public use, such as kindergarten, library, club hall, pavilion etc. Location of such structure shall be in one corner or the open space.” A plain reading of the relevant bye-law would make it ( 7 ) manifest that there is no obligation on the owner of land to reserve more than 10 per cent of the total open space of the land which is required to be developed. If voluntarily, the owner of land has reserved more than 10 per cent of open space in layout plan, at initial stage, that would not mean his being under obligation to stick- up only to such kind of open space which was earlier reserved and not to ask for development of the extra open space out of the reserved open space. What the petitioners sought was sanction to the extent of development of the extra 5 per cent open space out of the 15.13 per cent space, which is kept open vide the sanctioned layout plan. The request has been turned down only for the reason that the consent of all plot owners was not forwarded alongwith the revised proposal. 8. Question to be considered in this petition is whether the consent of all the plot owners is required when the development is sought to the extent of only the extra space and it does not restrict the reservation upto the 10 per cent as contemplated under the bye-laws. Mr. P.R. Patil would submit that consent of all the plot ( 8 ) owners is necessary because impliedly, they have paid price for the open space. He would submit that the open space left out in the layout plan is in the hands of the owner only as a trustee. He contended that without joining the 158 owners of the plots, the petition is not maintainable. He seeks to rely on certain observations in “State of Maharashtra v. Bhimashankar Sidramappa Chippa” 2009 (4) Bom.C.R.1. A Division Bench of this Court observed that though the owner of the land who gets layout sanctioned continues to be owner of the same, yet, he would hold the land in trust for plot holders to whom he sold the plots in layout. The relevant observations may be reproduced as follows : “In (P.T. Chet Ram Vashist Vs. Municipal Corporation of Delhi), 1994 DGLS (soft) 982 : 1995 (1) S.C.C. 47, the Supreme Court was required to consider whether space reserved in a layout plan for public purpose such as park, school etc. would vest in the Municipal Corporation free of cost. The Supreme Court held that in the absence of any provision in the relevant Act providing for vesting of any land reserved for an open space or park in the ( 9 ) Municipal Corporation the land would not so vest. However, at the same time the Court held that the landowner shall hold it for the benefit of the society and an obligation in the nature of trust would be created. In para (6)of the decision the Supreme Court observed : “Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan.” 9. Mr. Patil also invited my attention to certain observations in ”Pt. Chet Ram Vashist (dead) by L.Rs. v. Municipal Corporation of Delhi” (AIR 1995 S.C. 430 (1). The Apex Court held that imposition of condition that ( 10 ) area specified for park and school shall vest in Corporation, while sanctioning the layout plan, would be illegal. It is incidentally observed that reserving any site for any street, open space, park, school etc. in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. 10. One thing is quite clear. The reserved open space cannot be deemed to have been vested in the Municipal Corporation. It is quite true that the plot owners are the stake holders qua the open space which is reserved in the layout plan. The only question is whether they can be regarded as the real stake holders in respect of the open space beyond 10 per cent which is required to be statutorily reserved. The obvious answer ( 11 ) would be “No”. Though the plot owners can be presumed to have impliedly paid the price for the beneficial enjoyment of the open space reserved, yet, such kind of presumption would be available only to the extent of statutory reservation which is of mandatory character and not beyond that. There is no scintilla of evidence on record to show that any of the plot owners specifically paid any extra price in respect of the open space beyond the compulsive reservation of 10 per cent. The inference drawn by the respondent No. 4 – Deputy Director of Town Planning is based on only a Government Circular in this behalf. The Government Circular, no doubt, provides for consent of all the plot holders whenever such revised plan is required to be sanctioned. Still, however, the purport of the circular appears to ensure that those plot owners, who are likely to be directly affected due to such development, may be called upon to give the consent. It cannot be said that all the plot owners are likely to suffer due to such kind of sanctioned revised layout plan. The petitioners have filed affidavits of the two (2) adjoining plot holders, who have no objection for development of the open space ( 12 ) which is situated in the western site. In so far as remaining open spaces are concerned, there are no adjoining plots. In my opinion, the Circular cannot have over-riding effect when the law envisaged in the bye-law No. 14.2 is explicit and unambiguous. 11. The request of the petitioners could not be turned down only for the reason that consent of all the plot holders was not submitted alongwith the revised proposal. It cannot be, however, overlooked that the petitioners have no legal right to pick and choose in respect of the open space which is to be developed. The area of central open plot is of 50,629 sq.feet, and 12,134 sq.feet at two (2) places. The competent authority may determine which of the open space to the extent of 10 per cent may be kept reserved and which of the open space to the extent of extra 5 per cent may be allowed to be developed. The petitioners are at liberty to submit alternate revised plans in this behalf. Considering the above aspect of the matter, the impugned communications issued by the respondent No. 4 and the impugned order of the learned Additional Principal ( 13 ) Secretary will have to be quashed. 12. In the result, the writ petition is partly allowed. The impugned communications and the impugned order are quashed. The petitioners are at liberty to furnish alternative proposals for the revised development plan so as to claim development of excessive 5 per cent of the open space and the same shall be duly considered by the respondent No. 4 in the light of above observations. The revised proposal be considered within period of four (4) months after receipt thereof. The Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP3621-08