16 July 2019 5:55 AM GMT
The Bombay High Court has held that narrow interest of the individual landowner must yield to the larger public interest. The court was hearing a writ petition challenging a particular condition in a notification issued by the Urban Development Ministry announcing the decision to include certain lands previously in the agricultural zone into the residential zone.A division bench of Justice...
The Bombay High Court has held that narrow interest of the individual landowner must yield to the larger public interest. The court was hearing a writ petition challenging a particular condition in a notification issued by the Urban Development Ministry announcing the decision to include certain lands previously in the agricultural zone into the residential zone.
A division bench of Justice SC Dharmadhikari and Justice GS Patel heard the petition filed by Dilipsingh Borawake, a 65-year-old businessman from Pune. The petitioner owned lands in Ghorpadi, which was also part of area where agricultural lands were included in the residential zone under the notification. This inclusion was conditional.
Specifically, Condition 3 in the said notification states that if any portion of this land in the notification of two hectares or more is proposed to be developed, 10% of the land would have to be surrendered to the Pune Municipal Corporation (PMC), as amenity space without compensation in cash, but the owner so surrendering the amenity space land would be entitled to claim FSI benefit.
"Plainly read, the condition does not mandate a compulsory surrender of the land delinked from a proposed development, nor does it eliminate all forms of compensation. It specifically mandates such a surrender, and of a defined percentage, only if development is proposed, and it is bundled with an entitlement to claim FSI benefits against and in lieu of such a surrender."
However, the said notification was issued on June 27, 2000, and the petition was filed 12 years later.
Meanwhile, the petitioner availed the benefit of this notification and obtained a sanction on his amalgamation plan on March 26, 2007. After amalgamation, the combined land was subdivided into 10 plots. In this layout the plot marked as Plot No.10 was specifically earmarked for this 10% amenity space.
According to the petitioner, he surrendered the total land covered by the garden and by the DP roads respectively, i.e. 5600 sq mtrs towards the garden reservation and 1021.97 sq mtrs on account of the DP roads, to the PMC and obtained a possession receipt.
Intending to develop the remaining land, the petitioner submitted a proposal. However, on January 29, 2008, PMC rejected this application saying that the proposed development on Plot No.10 could not be permitted as this was reserved for the 10% amenity space.
Petitioner argued that he had already surrendered lands for garden and public purposes and therefore it was not appropriate to earmark Plot No.10 for an amenity space or a public purpose, or to persist with that condition or reservation. He also pointed out that even obtaining the FSI in lieu thereof would be of no use since he could not consume that FSI anywhere else.
The said rejection was challenged before the Chief Minister under Section 47 of the Maharashtra Town Regional Planning Act, 1966 (MRTP Act). After hearing both sides, the Chief Minister passed an order on April 5, 2010 dismissing the appeal.
At the very outset, the bench observed-
"We are not persuaded that there is the slightest merit in this Petition. The entire Petition and the arguments advanced overlook the statutory intent and purpose of the MRTP Act."
Court examined the MRTP Act and said-
"A landowner subjected to an onerous condition bringing his case within Section 49(1)(d) has the option of serving of the State Government a purchase notice requiring the appropriate authority to purchase his interest in the land in accordance with the Act. The Petitioner has admittedly served no such notice. Instead, what the Petitioner seeks is that the development plan, or more accurately the notification modifying the development plan to include the Ghorpadi lands subject to conditions, should be unilaterally modified for the sole benefit of the Petitioner.
Development plans are intended to subserve a wider public interest. It is not possible to argue that in our cities there is ever any such thing as 'sufficient' open space or 'sufficient' amenity space. It may be true that roads and gardens are amenities but they are by no means the only types of amenities. We do not accept the argument that because some land has been surrendered towards gardens or public roads, therefore the purposes of the development plan and the objective of planned and orderly development are fulfilled. The narrow interest of the individual land owner must yield to the larger public interest."
Dismissing the petition, Court pointed out that the petitioner had challenged a condition that he himself initially agreed to, as he provided 10% of the amenity area in plot no. 10 when he was providing his plot-wise layout to the PMC.
"We are entirely of the view that the 10% provision for amenity space is not only salutary but it is necessary for the balanced development of the city. It cannot be compromised" Court said.
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