It is well settled that by an interim order, even the final relief ordinarily should not be granted.=
The maintenance of the open Space and Roads in the
Layout should be done by the applicant, otherwise, it should
be handed over to the appropriate authority for maintenance.
These places and roads should be kept open to all public
consumption. Also, the roads should be kept open for use by
the neighboring landowners.”=
The nature of modification which has been made by the High Court vide order impugned dated 4th October, 2019 in the form of an ad-hoc interim arrangement, in our view, is exceeding its jurisdiction, and not within the realm of power of judicial review to be exercised under Article 226 of the Constitution. It is well settled that by an interim order, even the final relief ordinarily should not be granted. Consequently, the appeal succeeds and is accordingly allowed.
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).845 OF 2021
(Arising out of SLP(Civil) No(s).4322 of 2021)
(Diary No. 1282/2020)
PUNE METROPOLITAN REGIONAL
DEVELOPMENT AUTHORITY (PMRDA) …..APPELLANT(S)
VERSUS
PRAKASH HARKACHAND PARAKH & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S).846 OF 2021
(Arising out of SLP(Civil) No(s). 404 OF 2020)
O R D E R
Rastogi, J.
Civil Appeal @ SLP(Civil) Diary No. 1282/2020
1. Delay condoned.
2. Leave granted.
3. The appellant is primarily aggrieved by an interim order passed
by the High Court dated 4th October, 2019 in a writ petition filed at
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the instance of the 1st respondent pursuant to which the street
opened for public use has been restricted on certain terms and
conditions which has been referred to in the operative para 17 of the
order impugned which is as under:-
“17. However, a balance can always be struck. We, therefore,
grant an interim order not in absolute terms as claimed by
the petitioner, but as under:
(a) There will be an interim order in terms of prayer
clause (d) but the communication/order dated 18th
January, 2019 will be in abeyance on the condition
that the petitioner do not make any construction
and keep the portion which is used as private road
open to sky. They would also not make any
construction immediately adjacent to or abutting
the same;
(b) This private road will be used by the petitioner
together with the societies or the buildings'
occupiers along with members of public but only
before 8.30 pm in the night and after 5.30 am in
the morning. Between those hours, the road will
be closed to the public;
(c) This private road can be enclosed on both sides
by putting up iron gates or boom barriers and
placing security personnel;
(d) The petitioner will display a notice board on both
sides to this effect and allow the members of public
to use this road though styled as internal road from
5.30 am in the morning until 8.30 pm in the night;
(e) This arrangement will be without prejudice to
the rights and contentions of both sides;
(f) This will not confer any rights in either parties
presently;
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(g) The usage will not also make the 1st respondent
together with the 2nd respondent the absolute
owner of the property;
(h) In the event any wall has been demolished, so
as to protect this road from indiscriminate and
uncontrolled so also unrestricted use by the public,
then the 1st respondent shall allow the petitioner to
reconstruct the wall to the extent it was earlier, but
this wall will have the gates or barriers as directed
by us.
(i) As an added safety precaution, this road will not
be used by Heavy vehicles or buses and will be used
only by LMVs, two-wheelers and auto-rickshaws.
To ensure this, a height barrier may be installed by
the petitioner. The costs of the gates/barriers will
be borne by the petitioner/societies.
(j) There will be no public parking on this road and
all parking will be for residents only.
(k) This order will operate as an interim
arrangement during the pendency of this writ
petition.”
4. The facts in brief relevant for the purpose manifest that the
appellant is the competent authority constituted under Section 18 of
the Maharashtra Regional and Town and Country Planning Act, 1966
by the Urban Development Department of Government of
Maharashtra. The 1st respondent who owns and possess the subject
land in question bearing Survey No. 65A, Hissas admeasuring 37600
sq. meters situated at Village Majri bk, tal Haveli, District Pune
decided to develop the residential project. The lay out plan was
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submitted by the 1st respondent of the subject land comprised of 12
meters wide pathway road, on the right side of the lay out, from first
end to the other end of the project, along with an application under
Section 44 of the Maharashtra Land Revenue Code, 1966 to the 2nd
respondent and permission was granted for non-agricultural use on
terms and conditions of the subject land by order dated
25th September, 2012. The condition No.4 relevant for the purpose is
referred hereunder as:-
“4). The maintenance of the open Space and Roads in the
Layout should be done by the applicant, otherwise, it should
be handed over to the appropriate authority for maintenance.
These places and roads should be kept open to all public
consumption. Also, the roads should be kept open for use by
the neighboring landowners.”
5. In furtherance thereof, 1st respondent submitted an application
for sanction of the revised lay out and building plans of the subject
property to the 2nd respondent, which was approved on the terms and
conditions vide Order dated 29th December, 2014/24th February,
2015. The condition No. 4 of Order dated 25th September, 2012 and
No.6 of Order dated 24th February, 2015 are almost parametria and
relevant for the purpose in reference to grant of the use of 12 meters
road to be made accessible to the public is referred to hereunder:-
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“6) The applicant shall maintain the roads and open spaces
of the project or else shall hand it over to the competent
authority for its maintenance. These open places and the
roads shall be open for the use of all the public. Similar roads
shall be kept open for the use of the neighbouring /adjacent
land owners.”
6. It reveals from the record that Shewalewadi Grampanchayat
(respondent no. 3) made a representation to the appellant, and raised
certain objections.
7. After issuance of notice to the 1st respondent and taking note of
the material on record, the appellant directed the 1st respondent to
open the access of 12 meters road to the public at large vide its Order
dated 4th September, 2018 which came to be challenged by the 1st
respondent in Writ Petition No. 11775/2018 and was disposed of
with a direction to grant a fair opportunity of hearing to the 1st
respondent vide Order dated 16th October, 2018.
8. In pursuance thereof, the matter was examined afresh and after
affording an opportunity of hearing, Order came to be passed on 18th
January, 2019 with a direction to the 1st respondent that the subject
road and open space shall be kept open for the use of general public
and also to be kept open for the use of the adjoining(neighbouring)
land owners. The relevant part of the order is as under:-
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“Considering the above facts, and the approved plans, it
is seen that the FSI of an area admeasuring 3838.18 sq.m.
under the 12.0 wide internal road has been utilized in the
building plans. In the Non Agricultural order No. PMH/NA/
SR/520/2012, dated 25/09/2012 the Collector, Pune has
put condition No.4 as under :
"The layout roads and open space shall be
taken care of (maintenance) by the applicant, else
they shall be handed over to the appropriate
authority for maintenance. These road and open
space shall be kept open for the use of general
public. Also the roads shall be kept open for the use
of the adjoining (neighbouring) land owners".
It is mandatory for the developer to comply with this
condition. In the public interest and as per sanctioned
building permission, the north south 12.0 mtr. wide road
shall be opened for the general public by the developer
immediately. Else action shall be taken by the Authority to
open the road.”
9. The same came to be challenged by the 1st respondent in Writ
Petition No. 8242 of 2019. The Division Bench of the High Court,
pending writ petition, taking note of the submissions by an interim
order practically modified and made the ad-hoc arrangement by order
dated 4th October, 2019 on its own terms, imposing certain time
limits when the subject road would be made available for public use,
and when it would be used strictly as an internal road for the
occupants of the building. We were informed that the public was
using the road throughout till the impugned order was passed by the
High Court.
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10. The learned counsel for the parties have made their
submissions on merits of the writ petition, and also on the legality of
the order dated 18th January, 2019. However, we are not dilating on
the issue at this stage, as the writ petition is pending consideration
before the High Court.
11. The nature of modification which has been made by the High
Court vide order impugned dated 4th October, 2019 in the form of an
ad-hoc interim arrangement, in our view, is exceeding its jurisdiction,
and not within the realm of power of judicial review to be exercised
under Article 226 of the Constitution. It is well settled that by an
interim order, even the final relief ordinarily should not be granted.
12. Consequently, the appeal succeeds and is accordingly allowed.
The order impugned passed by the High Court dated 4th October,
2019 is hereby quashed and set aside. We make it clear that the Writ
Petition No. 8242 of 2019 be decided independently without being
influenced by the observations made by us in the present order on
its own merits in accordance with law. No costs.
13. Pending application(s), if any, stand disposed of.
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Civil Appeal @ SLP(C ) No. 404/2020
14. Leave granted.
15. The civil appeal in terms of the order dated 10th March, 2021
passed in Civil Appeal @ SLP(Civil) Diary No. 1282/2020 stands
disposed of. No costs.
16. Pending application(s), if any, stand disposed of.
……………………………J.
(INDU MALHOTRA)
……………………………J.
(AJAY RASTOGI)
NEW DELHI
MARCH 10, 2021
