To protect about 100 years old trees, landowners ready to transfer alternate piece of land to Municipal Council: Supreme Court allows alternate Prayer
Shirdi Nagar Panchayat V/S Kishor Sharad Borawake And Others [C.A. No.-006087-006087 / 2023]
The Supreme Court allowed the alternate prayer of the Landowners/plot holders that to protect about 100 years old trees, they are ready to transfer another piece of land to the Municipal Council and retain the land which is reserved for ‘amenity space’ consisting of trees which are aged about 100 years or more.
The division bench of Justice B.R. Gavai and Justice S.V.N. Bhatti found that the 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.
The present controversy talks about that in the Development Plan published on 15th December 1992, the properties of the landowners were reserved as “Green Zone”/ “No Development Zone”. Vide Notification of 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.
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.
The bench noted that that the landowners had taken advantage of the Government Notification of 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 High Court.
The court said that the High Court, therefore, rightly found no merit in the petition of the landowners.
“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”, the court said.
The Apex Court permitted the landowners/plot holders to make a representation to the Municipal Council for providing/transferring another piece of land on the same road having the same or near about the same area.
The bench said that it has passed the directions under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older.
Decision Summary
The case was represented by Mr. Sanjay Kharde, counsel for the Municipal Council and Mr. Amol Gavali and Ms. Pradnya Talekar, counsel appearing on behalf of the landowners and plot holders respectively.
The ruling was delivered by the division bench of the Supreme Court comprising of Justice B.R. Gavai and Justice S.V.N. Bhatti.
