[2023] 12 S.C.R. 545 : 2023 INSC 851
SHIRDI NAGAR PANCHAYAT
v.
KISHOR SHARAD BORAWAKE AND OTHERS
(Civil Appeal No. 6087 of 2023)
SEPTEMBER 22, 2023
[B. R. GAVAI* AND S. V. N. BHATTI, JJ.]
Issue for consideration: The High Court by order dated
04.07.2019 partly allowed the petition filed by the respondents/
landowners challenging the notification dated 18.08.2004, whereby
respondents’/landowners’ land was converted to ‘residential/
commercial zone’ from ‘no development/green zone’, subject to
appellant’s receiving 10% as ‘amenity space’ and 10% as ‘open
space’ of the total land area.
Land Use Conversion – Land owners and plot holders
contended that the ownership of the ‘open space’ and the
‘amenity space’ vest in the landowners/plot holders and as
such, order of the High Court needs no interference:
Held: The High Court was right in holding that insofar as ‘open
space’ is concerned, it was required to be kept as ‘open space’ for
use by the plot holders – However, insofar as the ‘amenity space’
is concerned, the High Court mixed it with the ‘open space’– It
was to be handed over to the Municipal Council as one of the preconditions for converting the land from a ‘No Development Zone’ to a
‘Residential Zone’ – Not only that, but acting on the said Notification,
the landowners entered into more than one agreement with the
Municipal Council, thereby agreeing to hand over the ‘open space’
as well as the ‘amenity space’ to the Municipal Council – In the
instant case, insofar as the compulsory reserved land is concerned,
it pertains to ‘open space’ and there is no need to interfere with the
finding of the High Court in that regard – However, as far as the
‘amenity space’ is concerned, it was on the basis of the conditions
imposed by the State of Maharashtra while converting the land,
which was reserved for a ‘non-residential’ purpose, to a ‘residential’
purpose – The landowners not only accepted the said condition
* Author
546 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
but also acting on the basis of the same entered into more than
one agreement with the Municipal Council transferring the ‘amenity
space’ in favour of the Municipal Council – If a Government gives
the benefit of development of land concerned with permission to
sub-divide the same and uses it for commercial purpose and it,
in turn, requires the landowner to handover part of land free of
cost for public utility purpose, such a clause cannot be held to be
illegal – As such, the High Court has grossly erred in allowing the
writ petitions – Judgment and order dated 04.07.2019 passed by
the High Court set aside. [Paras 20, 21, 22 and 23]
Pt. Chet Ram Vashist (Dead) by LRs. V. Municipal
Corporation of Delhi (1995) 1 SCC 47: [1994] 5 Suppl.
SCR 180; A.P. State Financial Corporation v. GAR Rerolling Mills and another (1994) 2 SCC 647: [1994] 1
SCR 857; R.N. Gosain v. Yashpal Dhir (1992) 4 SCC
683: [1992] 2 Suppl. SCR 257; National Insurance Co.
Ltd. v. Mastan and another (2006) 2 SCC 641: [2005] 5
Suppl. SCR 704; State of Punjab and others v. Dhanjit
Singh Sandhu (2014) 15 SCC 144: [2014] 3 SCR 1121;
Union of India and others v. N. Murugesan and others
(2022) 2 SCC 25; Narayanrao Jagobaji Gowande Public
Trust v. State of Maharashtra and others (2016) 4 SCC
443 – referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6087 of 2023.
From the Judgment and Order dated 04.07.2019 of the High Court of
Judicature at Bombay at Aurangabad in WP No.2486 of 2018.
With
Civil Appeal No.6088 of 2023.
Sanjay Kharde, Satyajeet Kharde, Sunil Kumar Verma, Advs. for
the Appellant.
Amol Gavali for M/s S-legal Associates, Hitendra Nath Rath, Ms.
Pradnya Talekar, Shashibhushan P. Adgaonkar, Omkar Jayant
Deshpande, Mrs. Pradnya S Adgaonkar, Rana Sandeep Bussa,
Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,
Sourav Singh, Aditya Krishna, Advs. for the Respondents.
[2023] 12 S.C.R. 547
SHIRDI NAGAR PANCHAYAT v.
KISHOR SHARAD BORAWAKE AND OTHERS
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted.
2. The present set of appeals challenge the common judgment and
order passed by the Division Bench of the High Court of Bombay at
Aurangabad, dated 4th July 2019, thereby partly allowing the petition
filed by the respondents/landowners challenging the notification
dated 18th August 2004, whereby respondents’/landowners’ land was
converted to ‘residential/commercial zone’ from ‘no development/
green zone’, subject to appellant’s receiving 10% as ‘amenity space’
and 10% as ‘open space’ of the total land area.
3. The appellant in both appeals is Shirdi Nagar Panchayat (hereinafter
referred to as “the Municipal Council”). Respondent Nos. 1 and 2
in the appeal arising out of SLP (C) No. 19401 of 2019 are the
original landowners (hereinafter referred to as “the landowners”) and
respondents in the appeal arising out of SLP(C) No. 19730 of 2019
are the plot holders/subsequent purchasers (hereinafter referred to
as “the plot holders”).
4. The facts, shorn of unnecessary details, giving rise to the present
appeals are as under:
4.1 On 15th December 1992, a Development Plan for the Municipal
Council was approved. Therein the disputed property
admeasuring 4 Hectares and 12 R (Survey No.-103) was shown
as a “Green Zone”/ “No Development Zone”. On 30th September
2000, a proposal regarding the conversion of land from a ‘No
Development Zone’ to a ‘Residential Zone’ including the disputed
property was published and objections were invited.
4.2 On 18th August 2004, the Government issued a notification
converting some land from ‘No Development Zone’ to
‘Residential Zone’, subject to the Municipal Council receiving
10% compulsory ‘open space’ and 10% as ‘amenity space’
free of charge. Apart from this, the area for the road was also
to be transferred.
4.3 Thereafter, the landowners sought permission from the Town
Planning Authority for the development of the plot, and the same
548 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
was granted. On 27th March 2006, the landowners executed
an agreement with the Municipal Council, thereby assigning
and giving possession of 4133.25 sq. mtrs. as ‘open space’,
4126.50 sq. mtrs. as ‘amenity space’, and 7560.09 sq. mtrs.
as ‘internal road’ area to the Municipal Council out of the total
land. Further, the landowners gave ‘No Objection’ if the same
was recorded with the revenue department.
4.4 On 12th January 2007, final sanction was granted to the layout
by the Municipal Council. After the final sanction was granted,
another agreement was entered into between the parties dated
18th September 2007. On the same day, the Municipal Council
sanctioned the layout submitted by the landowners subject to
the terms and conditions mentioned therein.
4.5 After execution of the said agreement, the name of the
Municipal Council was entered in the revenue records insofar
as amenity space is concerned. Thereafter, the landowners
divided/converted the sanctioned layout into 65 plots and sold
the same to various plot holders.
4.6 In 2012, when the Municipal Council sought possession of the
property, the landowners filed a civil suit seeking perpetual
injunction along with an application seeking a temporary
injunction against the Municipal Council. The application
seeking temporary injunction was rejected by the trial court.
The same was appealed before the District Court which was
also dismissed vide order dated 14th January 2015. Aggrieved
thereby, the landowners approached the High Court by filing
a writ petition. Vide order dated 17th January 2018, the High
Court granted permission to withdraw the writ petition.
4.7 During the pendency of the said civil suit, the landowners
approached the Sub-Divisional Officer (for short, ‘SDO’)
challenging the mutation entry whereby the Municipal Council
was inducted as owner of the ‘open space’ and ‘amenity space’
in the revenue record. Vide order dated 12th August 2015, the
SDO rejected the appeal filed by the landowners. The said order
was challenged before the Additional Collector, Ahmednagar,
and thereafter before the Divisional Commissioner, Nashik.
Both the authorities rejected the challenge.
[2023] 12 S.C.R. 549
SHIRDI NAGAR PANCHAYAT v.
KISHOR SHARAD BORAWAKE AND OTHERS
4.8 After withdrawal of the writ petition before the High Court, the
landowners amended the suit before the Trial Court thereby
challenging the Government Notification dated 18th August 2004.
4.9 On 23rd January 2018, the Municipal Council passed a resolution
to develop the plot surrendered by the landowners for the
purpose of a swimming pool and indoor game hall.
4.10 The landowners filed a petition being Writ Petition No. 2486 of
2018 challenging the Government Notification dated 18th August
2004. The plot holders also filed a petition being Writ Petition
No. 3805 of 2018 before the High Court after the passing of
the resolution by the Municipal Council.
4.11 Vide the impugned common judgment and order dated 4th July 2019,
the High Court held that the writ petition filed by the landowners,
i.e., Writ Petition No. 2486 of 2018 was not maintainable. However,
it partly allowed the writ petition filed by the plot holders. It quashed
and set aside condition No.2 in the Government Notification dated
18th August 2004 and condition No.14 in the sanctioned order of
layout with respect to ‘open space’ and ‘amenity space’. It further
restricted the Municipal Council from changing the user of the
land of ‘open space’ and ‘amenity space’ except for the beneficial
enjoyment of residential plot holders. It further quashed and set
aside the resolution dated 23rd January 2018 of the Municipal
Council to the extent it resolved to construct an indoor game hall,
multi-purpose meeting hall, and swimming pool on open space/
amenity space.
4.12 Being aggrieved thereby, the present appeals are filed.
5. We have heard Shri Sanjay Kharde, learned counsel for the Municipal
Council, Shri Amol Gavali, learned counsel for the landowners, Ms.
Pradnya Talekar, learned counsel for the plot holders, and Shri
Aaditya Aniruddha Pande, learned counsel for the State.
6. Shri Sanjay Kharde, learned counsel submitted that the Division
Bench of the High Court had grossly erred in allowing the writ petition
filed by the plot holders. He submitted that the plot holders had also
belatedly challenged the Government Notification dated 18th August
2004 by filing a writ petition in the year 2018. It is, therefore, submitted
that the petition of the plot holders was also liable to be dismissed.
550 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
7. Shri Kharde further submitted that the landowners having taken the
advantage of the Government Notification dated 18th August 2004,
vide which their land was converted from ‘No Development Zone
(Green Zone)’ to ‘Residential Zone (Yellow Zone)’ could not have
made a volte-face and challenged the very same notification. He
further submitted that even the claim of the plot holders was liable
to be rejected. The plot holders purchased the plots on the basis of
the sanctioned layout, which clearly showed that 10% of the land was
reserved for ‘amenity space’, which was to belong to the Municipal
Council. He, therefore, submitted that the High Court had grossly
erred in allowing the writ petition filed by the plot holders.
8. Shri Amol Gavali and Ms. Pradnya Talekar, learned counsel
appearing on behalf of the landowners and plot holders
respectively, on the contrary, submitted that the High Court after
considering the provisions of Sections 22, 33, and 37 of the
Maharashtra Regional and Town Planning Act, 1966 and the
Development Control Regulations (for short “the DCR”) has come
to a considered finding that the ownership of the ‘open space’
and the ‘amenity space’ vest in the landowners/plot holders and
as such, needs no interference. They further submitted that the
High Court has rightly relied on the judgment of this Court in the
case of Pt. Chet Ram Vashist (Dead) by LRs. V. Municipal
Corporation of Delhi1 wherein this Court, while considering the
pari materia provisions, has held that the Municipal Council cannot
impose the condition to surrender a part of the land and transfer it
in its favour free of cost as a condition precedent for sanctioning
layout. They, therefore, submit that the present appeals are liable
to be dismissed.
9. We find that the present appeals deserve to be allowed on more
than one grounds. Insofar as the writ petition filed by the landowners
is concerned, apart from there being a delay of about 14 years in
approaching the High Court, the said writ petition was also liable to
be dismissed in view of the doctrine of election.
1 (1995) 1 SCC 47
[2023] 12 S.C.R. 551
SHIRDI NAGAR PANCHAYAT v.
KISHOR SHARAD BORAWAKE AND OTHERS
10. It has been consistently held by this court in a catena of judgments
that if a party has more than one remedy and if he chooses one
of them, he is estopped from taking recourse to the other remedy.
Reference in this respect could be made to the judgments of this
Court in the cases of A.P. State Financial Corporation v. GAR Rerolling Mills and another2
, R.N. Gosain v. Yashpal Dhir3
, National
Insurance Co. Ltd. v. Mastan and another4
, State of Punjab and
others v. Dhanjit Singh Sandhu5 and recently in the case of Union
of India and others v. N. Murugesan and others6
.
11. The writ petition filed by the landowners was also liable to be dismissed
invoking the principle of approbate and reprobate, which has been
succinctly considered by this Court in the case of N. Murugesan
(supra) after considering the earlier case laws.
12. In the present case, in the Development Plan published on 15th
December 1992, the properties of the landowners were reserved
as “Green Zone”/ “No Development Zone”. Vide Notification dated
18th August 2004, the same was converted from “No Development
Zone” to “Residential Zone”. The said Notification specifically provided
that in addition to reserving 10% space as “open space”, which was
required to be compulsorily reserved in accordance with the DCR,
additional space of 10% was to be reserved for amenities to be
transferred to the Municipal Council free of cost.
13. On the basis of the same, the landowners sought permission from
the Town Planning Authority for the development of the land, and
the same was granted.
14. On the basis of these orders, the landowners executed an agreement
on 27th March 2006, thereby assigning to the Municipal Council an
area of 4133.25 sq. mtrs. as ‘open space’, whereas an area of 4126.50
sq. mtrs. was assigned as an ‘amenity space’. The said agreement
2 (1994) 2 SCC 647
3 (1992) 4 SCC 683
4 (2006) 2 SCC 641
5 (2014) 15 SCC 144
6 (2022) 2 SCC 25
552 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
also provided for an area of 7560.09 sq. mtrs. as an ‘internal road’
area to the Municipal Council out of the total land.
15. On 12th January 2007, a final sanction was granted to the layout by
the Municipal Council. On 18th September 2007, another agreement
was entered into between the parties. On the same date, the Municipal
Council also sanctioned a layout showing the lands reserved for
‘internal road’, ‘open space’, and ‘amenity space’. The landowners
acting on the basis of the said sanction plan converted the layout
into 65 plots and sold the same to various plot holders.
16. It is to be noted that though the landowners had executed documents
giving possession to the Municipal Council, when the Municipal
Council sought physical possession in 2012, the landowners filed
Civil Suit seeking perpetual injunction along with an application
seeking a temporary injunction against the Municipal Council. The
said application for temporary injunction was rejected by the Trial
Court. The appeal thereagainst was rejected vide order dated 14th
January 2015. The same was challenged before the High Court by
filing the writ petition. The writ petition was withdrawn vide order
dated 17th January 2018.
17. Parallelly, the proceedings with regard to the mutation of the Municipal
Council in the revenue records were also in progress. In the said
proceedings, the landowners lost up to the Divisional Commissioner.
In the meantime, the Municipal Council vide order dated 23rd January
2018, passed a resolution to develop the plot, reserved for ‘amenity
space’, for the purpose of a swimming pool and indoor game hall.
18. Only thereafter, the landowners and the plot holders filed writ petitions
before the High Court.
19. It could thus be seen that the landowners had taken advantage of
the Government Notification dated 18th August 2004, vide which
the land, which was reserved for ‘Green Zone (No Development
Zone)’, was converted into ‘Yellow Zone (Development Zone)’/
‘Residential Zone’. It is thus clear that having taken advantage
of the sanctioned plan and on the basis of the same laying down
the layout and only after failing to get the relief in the Civil Suit
and the Revenue proceedings, the landowners approached the
[2023] 12 S.C.R. 553
SHIRDI NAGAR PANCHAYAT v.
KISHOR SHARAD BORAWAKE AND OTHERS
High Court. The High Court, therefore, rightly found no merit in
the petition of the landowners.
20. Insofar as the plot holders are concerned, they also did not
stand on a better footing. They had purchased the plot knowing
very well that in the sanctioned layout, 10% of space was to be
reserved as ‘open space’ and 10% of the land was to be handed
over to the Municipal Council as ‘amenity space’. They were
very well aware that 10% of the land would be transferred to the
Municipal Council by the landowners free of cost and that the
land would vest in the Municipal Council. Knowing this fully well,
they entered into transactions with the landowners. As such, the
writ petition at their behest also challenging the Notification after
a period of almost 14 years ought to have been dismissed on the
grounds of delay and laches. No doubt that the High Court was
justified in holding that the ownership of the ‘open space’ would
vest in the owners of the plot in view of the relevant DCR. The
High Court was also right in holding that insofar as ‘open space’
is concerned, it was required to be kept as ‘open space’ for use
by the plot holders.
21. However, insofar as the ‘amenity space’ is concerned, the High
Court mixed it with the ‘open space’. It was to be handed over to
the Municipal Council as one of the pre-conditions for converting
the land from a ‘No Development Zone’ to a ‘Residential Zone’.
Not only that, but acting on the said Notification, the landowners
entered into more than one agreement with the Municipal Council,
thereby agreeing to hand over the ‘open space’ as well as the
‘amenity space’ to the Municipal Council. The sanctioned layout
also earmarked the area admeasuring 4143.24 sq. mtrs. as
‘amenity space’.
22. Insofar the reliance by the High Court on the judgment of this
Court in the case of Pt. Chet Ram Vashist (Dead) By LRs
(supra) is concerned, in the said case, this Court was dealing
with the issue of compulsorily reserved land and held that while
sanctioning a plan, a Corporation cannot insist on a condition
that the same should be transferred to it. However, in the present
554 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
case, insofar as the compulsory reserved land is concerned, it
pertains to ‘open space’ and we do not propose to interfere with
the finding of the High Court in that regard. However, insofar
as the ‘amenity space’ is concerned, it was on the basis of the
conditions imposed by the State of Maharashtra while converting
the land, which was reserved for a ‘non-residential’ purpose, to a
‘residential’ purpose. The landowners not only accepted the said
condition but also acting on the basis of the same entered into
more than one agreement with the Municipal Council transferring
the ‘amenity space’ in favour of the Municipal Council.
23. It can be noticed that this Court in the case of Narayanrao Jagobaji
Gowande Public Trust v. State of Maharashtra and others7
has held that if a Government gives the benefit of development of
land concerned with permission to sub-divide the same and uses
it for commercial purpose and it, in turn, requires the landowner
to handover part of land free of cost for public utility purpose,
such a clause cannot be held to be illegal. As such, we find that
the High Court has grossly erred in allowing the writ petitions.
24. We, therefore, allow the appeals and quash and set aside the
impugned common judgment and order dated 4th July 2019 passed
by the High Court. The writ petition filed by the plot holders also
shall stand dismissed.
25. Learned counsel for the landowners/plot holders had submitted
that in the event this Court was inclined to allow the present
appeals, which we hereby do, they had an alternate prayer. It
was submitted that the land which is reserved for ‘amenity space’
consists of trees which are aged about 100 years or more. They,
therefore, made an offer that if the landowners are permitted to
retain the said land, they are willing to transfer another piece of
land of the same or near about the same area. We find the said
request to be reasonable. We, therefore, permit the landowners/
plot holders to make a representation to the Municipal Council
for providing/transferring another piece of land on the same
7 (2016) 4 SCC 443
[2023] 12 S.C.R. 555
SHIRDI NAGAR PANCHAYAT v.
KISHOR SHARAD BORAWAKE AND OTHERS
road having the same or near about the same area. On such an
application being made, the Municipal Council would consider
the same in accordance with law.
26. We pass the above directions under Article 142 of the Constitution
of India in order to protect the trees that are aged 100 years or
older.
Headnotes prepared by: Ankit Gyan Result of the case : Appeals allowed.
