As Condition To Relax Zoning Restriction, Govt Can Ask Land Owners To Transfer A Portion Free Of Cost For Public Utility : Supreme Court

The Supreme Court has that a condition imposed by the Government that the land owner should handover a part of land free of cost for public utility purpose in return of the permission granted for converting the nature of the use of the land cannot be held illegal.Holding so, the Court set aside the Bombay High Court’s order restricting the use of ‘amenity space’ which was allotted to the Shirdi Nagar Panchayat (Municipal Council) in return of the permission granted for converting a land which was reserved for a ‘non-residential’ for ‘residential’ purpose. However, after a plea was raised that the land consists of trees which are aged about 100 years or more, the court allowed the landowners to make representation to the Council for transfer of an alternative land.The bench of Justices B.R. Gavai and S.V.N. Bhatti remarked that the ‘amenity space’ was agreed to be allotted to the Municipal Council on the basis of the conditions imposed by the State of Maharashtra while converting the land from a ‘No Development Zone’ to ‘Residential Zone’, as per Government Notification dated 18th August 2004. The landowners, the court said, had not only accepted the said condition but acting on the same, they had entered into agreements with the Municipal Council transferring the ‘amenity space’ in favour of the latter.The court thus quashed the Bombay High Court’s order restricting the Municipal Council from changing the use of the land reserved as ‘amenity space’ except for the beneficial enjoyment of the residential plot holders.The bench, however, allowed the alternative plea of the landowners/plot holders that, since the land reserved for ‘amenity space’ consisted of trees aged about 100 years or more, they be permitted to retain the ‘amnesty space’, in lieu of transferring another piece of land. “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 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,” the court said, adding that it was passing the said directions under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older.Brief Facts:On 18th August 2004, the Government of Maharashtra issued a notification converting the respondent- land owners’ land from a ‘No Development Zone’ to ‘Residential Zone’, subject to the Municipal Council receiving 10% compulsory ‘open space’ and 10% as ‘amenity space’, free of charge. Thereafter, the landowners sought permission from the Town Planning Authority for the development of a plot on the land, and the same was granted. The landowners divided/converted the land into 65 plots and sold the same to various plot holders.Later, in 2006, the landowners executed an agreement with the Municipal Council, assigning and giving possession of certain land as ‘open space’ and as ‘amenity space’, in accordance with the 2004 Government Notification. The name of the Municipal Council was also entered in the revenue records with respect to the ‘amenity space’ and ‘open space’ allotted to them.In 2012, when the Municipal Council sought possession of the property allotted to them, 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 upheld by the District Court in appeal. During the pendency of the civil suit, the landowners approached the Sub-Divisional Officer (SDO) challenging the mutation entry by which 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 plea of the landowners. The same was upheld by the Additional Collector and the Divisional Commissioner.The landowners, thereafter, filed a writ petition before the High Court challenging the Government Notification dated 18th August 2004. After the Municipal Council passed a resolution to undertake some construction in the plot surrendered by the landowners, the plot holders also filed a petition before the High Court challenging the 2004 Notification.The High Court, by judgment and order dated 4th July 2019, held that the writ petition filed by the landowners was not maintainable on account of delay. However, it partly allowed the writ petition filed by the plot holders. The High Court restricted the Municipal Council from changing the use 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...

As Condition To Relax Zoning Restriction, Govt Can Ask Land Owners To Transfer A Portion Free Of Cost For Public Utility : Supreme Court

Parina Katyal

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