-: 1 :- wp-3557/10. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3557 OF 2010. Santhome Charitable Trust of Kalyan. ..Petitioner. Versus Kalyan Dombivali Municipal Corporation & Others. ..Respondents. Mr. V. S. Khanavkar with Mr. K. B. Dighe for the petitioner. Mr. Shailesh Redekar for R-4. Ms. Seema Sarnaik with Mr. A. Tamhane for R-5. Mrs. M. P. Thakur, AGP. Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 23, 2010. P. C. (Per R. V. More, J.) : 1. Heard learned counsel for the petitioner and respondents. By the aforesaid petition, the petitioner is challenging the letter dated 29/3/2010 issued by respondent nos. 1 & 2, terminating Build, Operate and Transfer agreement [for short “BOT”] executed between respondent no.2 and the petitioner on 25/6/2009. By the said agreement, the petitioner was allowed to develop garden and maintain the same on open space, being plot no. 77, S. No. 30, village Tisgaon, Kalyan (East) [hereinafter for short referred to as “the said plot”.] on BOT basis. It is the case of the petitioner that respondent nos. 1 & 2, could not have arbitrarily cancelled the BOT agreement srp -: 2 :- wp-3557/10. without giving any show cause notice and/or opportunity of hearing. Learned counsel for the petitioner, in support of his case, relied upon two decisions of the Apex Court reported in (2007) 10 SCC 674 (in the matter of Sunil Pannalal Banthia & Ors v/s. CIDCO) and (1995) SCC 47 (in the matter of Pt. Chet Ram Vashist (dead) by LRs. v/s. Municipal Corp. of Delhi). 2. On behalf of respondent nos.1 & 2, affidavit-in-reply of Mr. R. S. Puranik, Executive Engineer of respondent no.1 is filed. It is contended that the writ petition is not maintainable as alternative remedy of suit is available to the petitioner. It is the case of respondent nos.1 & 2 that the said plot was allotted to the petitioner on BOT basis as respondent no.1 was under the impression that the said plot belongs to the Collector and therefore can be developed by the Corporation. Subsequently, however, it was brought to the notice of the Corporation that there is doubt about the title of the Corporation in respect of the said land and the other societies have taken serious objection to the rights of the Corporation to hand over the said plot to the petitioner and therefore by the impugned letter, the BOT agreement came to be cancelled. 3. The 5th respondent’s application for intervention in the aforesaid writ petition was allowed by the separate order dated -: 3 :- wp-3557/10. 31/8/2010. Thereafter the 5th respondent has also filed reply. It is the case of the 5th respondent that the said plot is a part and parcel of larger plot of land bearing Survey No. 30, Hissa No. 1, 2, 4 to 13, 21 to 24, 29, 31, 32 to 38, admeasuring 69453.17 sq. mtrs. The larger plot of land was divided into 93 plots of which plot no.77, i.e., the said plot, is the subject matter of this writ petition. It is the specific contention of respondent no.5 that the larger plot is a privately owned land. The layout plan of larger plot was sanctioned by the Collector, 3rd respondent on 9/1/1968, thereby demarcating 93 plots alongwith internal roads. As per the prevalent Rules and Regulations for the development of land, 10% of the area of the plot was required to be kept as open space. It is further case of the 5th respondent that layout of the larger plot was sanctioned as non agricultural land creating and demarcating 93 plots and area admeasuring 6875.75 sq. mtrs., which is 10% of the total area of the larger plot, was set aside as open space and same was earmarked as Plot No.77. It is the mandatory open space for the utilisaiton, benefit and use of the balance 92 plot owners. 4. Having heard learned counsel for the respective parties and having gone through the compilation of petition and affidavits-in- reply of respondent nos. 1 & 2 and respondent no.5, we find no merit -: 4 :- wp-3557/10. in the petition. It is evident from the record that Survey No. 30(part) Hissa Nos. 1, 2, 4 to 13, 21 to 24, 29, 31, 32 to 38, admeasuring 69453.17 sq. mtrs, is a privately owned land. It was divided into 93 plots. The layout plan was sanctioned by the Collector in the year 1968, thereby demarcating 93 plots. The said plot is demarcated as “Open Space” in the sanctioned layout plan of Survey No. 30(part). The respondent Corporation, initially, was under the impression that the said plot belongs to the Collector and therefore can develop the same by itself. However, subsequently the Corporation received objections from some of the plot owners of remaining 92 plots out of Survey No.30 and therefore the Corporation has cancelled the BOT agreement with the petitioner. The Corporation terminated the agreement on the ground that there are doubts about the title of the said plot. The title of the said plot is also disputed by the 5th respondent. In the circumstances, we are of the opinion that the writ petition cannot be entertained. 5. That apart, the petitioner has an alternative remedy of civil suit, challenging the termination of the BOT agreement alongwith claim for damages. The petitioner is also at liberty to claim damages by filing a suit in the civil Court. However, we in our extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, cannot -: 5 :- wp-3557/10. entertain the petition. 6. This takes us to consider the judgments cited by the learned counsel for the petitioner. In Sunil Pannalal Banthia’s case (supra) the CIDCO had isued letter of allotment of a commercial plot for a period of 60 years for a premium of Rs.2,12,24,750 in favour of the original allottees, who later applied for transfer of the said plot to the appellants. Upon accepting the transfer charges of Rs. 2 lakhs, CIDCO issued a corrigendum tot he original allotment letter and executed a deed of lease in favour of the appellants. Subsequently, CIDCO by issuing show cause notice terminated the lease on the ground that the same is void under section 23 of the Contract Act, namely, as being opposed to the public policy. The High Court dismissed the writ petition on the ground that an alternative remedy is available. The Supreme Court reversed the decision of the High Court on the ground that the no decision is required to be taken which could have merited an order of remand. The Supreme Court was of the opinion that the only question which arises is the question of law as to whether the CIDCO had acted in excess of its jurisdiction and authority in cancelling the allotment made to the appellants on a unilateral consideration that the allotment had been made in contravention of its rules and regulations and was thereby opposed to the public policy -: 6 :- wp-3557/10. and was illegal and void in terms of section 23 of the Contract Act, 1872. The ratio of this decision cannot be made applicable to the facts of the present case, since the ownership of the plot in question is in dispute. In Pt. Chet Ram Vashist (dead) by LRs (supra) is concerned, the Apex Court in paragraph 6 has observed as follows : 6. 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 ceased 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. 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. . Thus, it is clear that the Corporation cannot claim the lands specified as “open space”, should be transfered to it free of cost. The Corporation, at the most, may get right as a custodian of the public -: 7 :- wp-3557/10. interest. In our opinion, this authority is also not helpful to the petitioner in view of the doubt about ownership of the land. 6. In the circumstances, writ petition is dismissed. (Smt. Ranjana Desai,J.) (R.V. More, J.)