1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.461 Of 1994 1) Ravindra s/o Champalal ] Khinvasara, ] Age 29 years, ] Occupation : Business, ] R/o N-3, Cidco, ] Aurangabad. ] ] 2) Champalal Kanhaiyalal ] Khinvsara, ] Age 58 years, ] Occupation and resident ] Petitioners of As above. ] Versus 1) The State of Maharashtra. ] ] 2) The Municipal Corporation ] of Aurangabad City, ] Town Hall, Aurangabad, ] Through its Administrator ] ] Respondents 3) The Collector, Aurangabad. ] -------- Shri. P.B. Shirsath, Advocate for petitioners. Shri. S.V. Kurundkar, Additional Government Pleader, for respondent Nos.1 and 3. Shri. S.N.Pagare, Advocate for respondent No.2. -------- 2 CORAM: NARESH H PATIL & K.K. TATED, JJ. DATE: 23rd & 27th SEPTEMBER, 2010 ORAL JUDGMENT (PER NARESH H PATIL, J.): 1) The petitioners contend that they are owner of immovable property being Municipal No. 1-24-31, Fazalpura (New Ravindra Nagar). The petitioners had applied for sanction of lay out plan in the year 1966 as they had to show 100 ft wide and 50 ft wide development plan roads. The petitioners grievance is that the respondent No.2 – Municipal Corporation Aurangabad had illegally utilized the area under road which was shown in the layout plan, as roads under development plan. The petitioners were not paid compensation towards utilization of the said area under roads by the Corporation. The petitioners, therefore, claim that, the respondents – Municipal Corporation 3 and the State shall compensate the petitioners by awarding market rate along with statutory benefits as available under the provisions of the Land Acquisition Act 1894 by initiating land acquisition proceedings in respect of area shown as development plan road passing through the subject property owned by the petitioners. 2) The petitioners contend that in the year 1966 after the petitioners submitted lay out plan for sanction permission was granted by the then Municipal Council Aurangabad with certain conditions. Condition No.8 in the sanction order reads that the roads demarcated in the layout plan of the site shall vest in the Municipal Council Aurangabad under the provisions of Section 173 and 174 of the Maharashtra Municipal Councils Act 1965. The condition further stipulated that the 4 landholder or owner of the land under layout plan shall not claim right or title of whatsoever nature over it nor he shall be entitled to claim any compensation. The Aurangabad Municipal Corporation was then Municipal Council at the time when layout plan was submitted by the petitioners. In the contention of the petitioners the land under road was admeasuring 53,730 square meters which was taken in possession by the then Municipal Council by reserving it under the development plan. 3) The petitioners issued a notice on 21-8-1987 by registered post acknowledgment due to the Secretary, Urban Development Department, Government of Maharashtra, Mantralaya Mumbai, copy of which was endorsed to the Corporation - respondent No.2. The petitioners called upon 5 the authorities to exercise their powers in the light of the provisions of Section 49 of the Maharashtra Regional and Town Planning Act, 1966 and to purchase the area taken in possession by the Corporation within the statutory period. After receipt of the said notice the petitioners were directed to furnish information to the Corporation. Accordingly the same was furnished. By a communication dated nil October 1988 the State Government informed the petitioners that by virtue of condition No.8 contained in the order dated 14-2-1966 the petitioner was not entitled for any compensation for the area which was taken in possession by the Corporation and as such the purchase notice issued by the petitioners was disposed of. 4) The petitioners contend that by notice 6 dated 28-4-1989 the petitioners called upon the Municipal Corporation for making payment towards the area taken in possession for the development plan road at the rate of Rs.40/- (rupees forty) per sq.ft. In reply, the Corporation communicated that the land under road vests in the Municipal Corporation in view of the order passed by the Municipal Council while layout plan was sanctioned. The Corporation was of the view that all roads, public streets stand transferred in favour of the Municipal Corporation and they vest with the public authorities. The petitioners claim to have issued further notices on 6-12-1989 and 5-3-1991 for raising identical grievances but they did not receive favourable reply. 5) The petitioners referred to the directives issued by the Town Planning 7 Department i.e. the Director of Town Planning, Maharashtra State Pune on 21st December 1990 in respect of computation of additional Floor Space Index under the Standardized Building By- laws and Development Control Rules. The petitioners’ plea is that in lieu of payment of compensation an option is provided to the Corporation to allow the owner of the property to claim Floor Space Index. The work in respect of layout road was already completed and the road is being utilized for traffic since 1989. The act of the Municipal Corporation is in violation of Article 300A of the Constitution of India. The petitioners therefore prayed for a writ, order or direction to the respondents to pay an amount at the rate of Rs.70/- (rupees seventy) per sq.ft for the area which was utilized by the Corporation under the DP Road and other consequential benefits. 8 6) Respondent No.2 – Municipal Corporation has filed affidavit-in-reply. In substance, the case of the Municipal Corporation is that, the Development Plan of Aurangabad city was sanctioned and it came into force in the year 1975. In the year 1966 layout plan was submitted in respect of the subject property by the petitioners. The said plan was sanctioned in the year 1966 and in view of Condition No.8 of the sanction order the road demarcated in the layout plan of the site shall be treated as public street and the land under road shall vest in the Municipal Council as it then was in view of the provisions of Section 173 and 174 of the Maharashtra Municipal Councils Act, 1965. The deponent contends that the land holder / owner shall not have any claim, right or title whatsoever in respect of the said land and to claim any compensation or benefit in 9 respect of the land which, according to the Corporation, vest in it. The deponent further contends that, in the layout plan submitted in the year 1966 the petitioners had shown 100 ft and 50 ft. wide roads. The Municipal Council / Corporation is not responsible to make any payment, in the facts of this case, neither the petitioners are entitled for benefits in respect of Floor Space Index or Transferable Development Rights. The building bye-laws and the Development Control Rules in respect of Floor Space Index upto 100 percent is not applicable to the petitioners and they are not entitled to take any benefit on that count. In substance, the contentions raised by the petitioners were denied in toto by the respondent – Corporation. 7) The learned counsel Shri. P.B. Shirsath 10 appearing for the petitioners submitted that the petitioners had to accept the proposed sanctioned layout plan with whatever conditions the Municipal Council Aurangabad had imposed as they had no other option. Being a Developer the petitioners had to develop the property concerned and, therefore, the petitioners had accepted the order passed by the Municipal Council sanctioning the layout plan with the said objectionable Condition No.8. The counsel submitted that after the Corporation published its development plan and the layout roads were shown as DP Road, the petitioners diligently raised issue and brought to the notice of the Corporation that these layout roads could not be shown as DP Roads. If the Corporation is willing to treat these roads as DP roads then the petitioners are entitled for adequate compensation in accordance with law more 11 particularly in terms of provisions of the Land Acquisition Act / Maharashtra Regional and Town Planning Act. In the submission of the counsel being condition No.8 of the sanction order of the layout plan would not disentitle and debar them from claiming adequate compensation in accordance with law in view of the fact that, area reserved under the DP Road forms part of the layout plan of the petitioners. In the submission of the counsel, the theory that open space and streets in the sanctioned layout vest with the public authority or they could be utilized by general public has been rejected by the Courts of law. The public authorities are not entitled to usurp such a power without adequately compensating the party concerned in case the open space and open streets are to be utilized by the planning authority for public purpose more precisely by reserving it under 12 the Development Plan. The learned counsel submitted that the Corporation alternatively could allow the petitioners to invoke the provisions of Section 126 of the Maharashtra Regional and Town Planning Act which facilitates for more Floor Space Index and Transferable Development Rights. 8) The learned Counsel Shri. S.N. Pagare appearing for the respondent No.2 – Municipal Corporation has reiterated the stand of the Corporation as reflected in the affidavit-in- reply. The matter was adjourned on few occasions for the counsel to take upto date instructions in this regard. In short, the submission of the learned counsel Shri. Pagare is that, as the petitioners voluntarily submitted the layout plan showing 100 ft and 50 ft wide roads for developing their property the 13 petitioners are now estopped from claiming any compensation in respect of the said land under roads which was shown as road while sanctioning the layout plan. In respect of the development plan, the counsel submitted that it is true that some roads having 100 ft and 50 ft wide shown in the lay out plan were reserved under the development plan for the Aurangabad city which was later-on sanctioned but in the light of the order of sanction of layout plan submitted by the petitioners and precisely in view of the condition No.8 the petitioners are not entitled to claim any benefit for compensation under the Land Acquisition Act or to utilize facility of Floor Space Index or Transferable Development Rights. The counsel submitted that in the light of the order passed by the Chief Officer, Municipal Council Aurangabad in the year 1966 the open space 14 location in the layout plan vests in the Municipal Council/Corporation and they could be utilized not only by the petitioners but by the public at large and could be maintained by the Municipal Council / Corporation. In this view of the matter, the petitioners are not entitled to claim any compensation in respect thereof. Monday, 27th September 2010 9) We have perused the pleadings of the parties and considered the submissions advanced by the learned counsel appearing in the matter. The thrust of the arguments advanced by learned counsel appearing for the Corporation is that in the light of Clause 8 of the order sanctioning lay-out plan submitted by the petitioners, it would not be permissible for the petitioners to ask for compensation in the 15 light of the provisions of the Land Acquisition Act 1894 and the Maharashtra Regional and Town Planning Act 1966. As the petitioners voluntarily had left 100 ft wide and 50 ft wide roads, which would benefit the developer, the petitioners shall not be entitled to raise any claim after the petitioners developed the property in the light of the sanctioned layout plan. Reservation of the said 100 ft wide and 50 ft wide roads as Development Plan roads by the Corporation would not change the legal implications, according to the learned counsel appearing for the Corporation. From the record and in view of the submissions advanced we are not convinced with the stand adopted by the Corporation. In the Development Plan published at the relevant time these roads were shown as public roads and in the light of the Land Acquisition Act, the Maharashtra Regional and 16 Town Planning Act and the Development Laws, the Corporation is not entitled to utilize the portion under the roads owned by the petitioners as public roads merely on the ground that in the sanctioned layout plan these roads were left out as roads in the private sanctioned layout plan. Even otherwise the submissions advanced by the learned counsel for the petitioners is that under the Development Control Rules of the Corporation the petitioners were not required to leave 100 ft wide and 50 ft wide roads for getting layout sanctioned. Under the rules, according to the counsel, a developer is entitled to leave maximum 12 ft. wide road for getting layout sanctioned, if he satisfies other conditions. As the Corporation forced the petitioners to leave 100 ft wide and 50 ft wide roads for getting layout plan sanctioned the petitioners 17 had no other option but to submit the plan accordingly. 10) Probably the petitioners would not have raised the grievance of this nature if in the Development Plan subject roads were not reserved as public roads by the Corporation. It is after development plan was published the petitioners raised their claim and issued appropriate notices copies of such notices are produced on record wherein the petitioners had raised their grievance that without paying adequate compensation the land of the petitioners could not be utilized by the Corporation by reserving it in the development plan which was sanctioned by the State Government. Since beginning the stand of the Corporation is that as the roads are part of a private sanctioned layout, petitioners could 18 not be compensated nor they are entitled to claim FSI or TDR. Even now the Corporation has stuck up to its earlier stand. Considering the provisions of the Land Acquisition Act, the Maharashtra Regional and Town Planning Act and the scheme behind publishing of the development plan, the Corporation was / is not entitled to reserve the land of a citizen without adequately compensating him for the same. Admittedly the said plan was sanctioned and the said roads have been utilized as public roads and they are maintained by the Aurangabad Municipal Corporation. The petitioners, therefore, had prayed for directions to the respondents to initiate acquisition proceedings with respect to the said land. 11) The learned counsel for the petitioner has placed reliance on the following reported 19 judgments in support of his contention. (1) Pt. Chet Ram Vashist v. Municipal Corporation of Delhi, AIR 1995 SC 430; (2) Basheshar Nath v. Commissioner of Income Tax, Delhi, AIR 1959 SC 149; (3) Smt. Nirmal Khosla v. The Union of India, AIR 1976 P & H. 22. (4) Vrajlal Jinahai vs. State of Maharashtra, 2003(3) Mh.L.J.215. (5) Diwakar Pundlikrao Satpute v. Zilla Parishad, Wardha, 2004(3) Mh.L.J. 151. In the case of Pt. Chet Ram Vashist v. Municipal Corporation of Delhi, reported in AIR 1995 SC 430, the relevant observations of the Apex Court are in para 5 which are as under : "5. .... Even a private street can be declared to be a public on the request of owners of the building and then only it vests in the Corporation. In absence of any provision, therefore, in the Act the open space left for school or park in a private colony cannot vest in the Corporation. That is why in England whenever a private colony is developed or a private person leaves an 20 open space for park to be used for public purpose he is required to issue what is termed as ‘Blight Notice’ to the local body to get the land transferred in its favour on payment of compensation. Section 313 which empowers the Commissioner to sanction a lay-out plan, does not contemplate vesting of the land earmarked for a public purpose to vest in the Corporation or to be transferred to it. The requirement in law of requiring an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purpose is not the same as to claim that the open space or part so earmarked shall vest in the Corporation or stand transfered to it. Even a plain reading of sub-section (5) indicates that the land which is subject-matter of a lay- out plan cannot be dealt with by the owner except in conformity with the order of the Standing Committee. In other words the Section imposes a bar on exercise of power by the owner in respect of land covered by the lay-out plan. But it does not create any right or interest in the Corporation in the land so specified. The resolution of the Standing Committee, therefore, that the area specified in the lay-out plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law." In the case of Basheshar Nath v. Commissioner of Income Tax,Delhi and Rajasthan, AIR 1959 SC 149 the Apex Court in para 73 observed as under : 21 "73. The true position as I conceive it is this: where an right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals." In the case of Vrajlal Jinabhai Patel v. State of Maharashtra, 2003(3) Mh.L.J. 215, a Division Bench of the Bombay High Court observed in para 7 thus : "7. Rule 14 appears to have been framed in furtherance of section 183 of the Act which relates to laying out or making of a 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 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 to us 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. In the 22 circumstances,we reject the alternative contention of Shri. Joshi that the open space under the layout would be vested in the Municipality on payment of compensation of Re.1/-." 12) The learned counsel Shri. Pagare, for the Corporation has placed reliance on the reported judgments in (1) Babu Singh v. Union of India, AIR 1979 SC 1713; and (2) M/s. Someshchandra Kailashchandra and Company Vs. The State of Maharashtra, 2001(4) ALL MR 432 in support of his submissions. 13) The learned counsel appearing for the petitioners during the course of arguments has brought to our notice the provisions of Section 126 of the Maharashtra Regional and Town Planning Act wherein the appropriate planning authority or the developing authority in lieu of amount of compensation could allow appropriate Floor Space Index or Transferable 23 Development Rights (FSI - TDR) against the area of land which is taken over by the authorities for the purpose of development. From the relevant provisions of the MRTP Act we could notice that the planning authority could take such steps of grant of FSI or TDR in case of initiation of land acquisition proceedings. The learned counsel appearing for the petitioners submitted that, the Government of Maharashtra in Urban Development Department had issued appropriate orders in this regard. 14) The learned counsel appearing for the Corporation Shri. Pagare submitted that, the petition suffers from delay and laches which is abnormal in nature. In the facts of the case and in the light of the correspondence exchanged between the parties we are not inclined to accept the submissions that the 24 petition deserves to be rejected on ground of delay and laches. The said contentions raised by the counsel for the Corporation are rejected. 15) From the aforementioned facts, circumstances and the reasoning adopted by us we are of the view that the petition is required to be allowed. 16) We direct the respondent No.2 - Aurangabad Municipal Corporation to initiate proceedings for acquisition in respect of the subject land which is owned by the petitioners bearing Municipal No.1-24-31 situated at Fazalpura (New Ravindra Nagar) as shown in the Development Plan of the Aurangabad Municipal Corporation sanctioned in the year 1975 and complete the same as early as possible, 25 preferably within a period of two years from today. The Aurangabad Municipal Corporation is at liberty to consider granting FSI / TRD benefit to the petitioners in accordance with law. Rule is made absolute in the above terms. No order as to costs. Sd/- Sd/- (K.K. TATED, J.) (NARESH H PATIL, J.) rsl/ wp.461.1994