Full Judgment Text
REPORTABLE
2023INSC851
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. …………. OF 2023
[Arising out of SLP (C) No. 19401 Of 2019]
SHIRDI NAGAR PANCHAYAT ...APPELLANT(S)
VERSUS
KISHOR SHARAD BORAWAKE
AND OTHERS ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. …………. OF 2023
[Arising out of SLP (C) No. 19730 Of 2019]
J U D G M E N T
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
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Court of Bombay at Aurangabad, dated 4 July 2019, thereby
partly allowing the petition filed by the
respondents/landowners challenging the notification dated
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2023.09.22
14:21:54 IST
Reason:
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18 August 2004, whereby respondents’/landowners’ land
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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:
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4.1 On 15 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
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Development Zone”. On 30 September 2000, a
proposal regarding the conversion of land from a ‘No
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Development Zone’ to a ‘Residential Zone’ including
the disputed property was published and objections
were invited.
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4.2
On 18 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
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the plot, and the same was granted. On 27 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
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Objection’ if the same was recorded with the revenue
department.
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4.4 On 12 January 2007, final sanction was granted to
the layout by the Municipal Council. After the final
sanction was granted, another agreement was entered
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into between the parties dated 18 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
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was appealed before the District Court which was also
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dismissed vide order dated 14 January 2015.
Aggrieved thereby, the landowners approached the
High Court by filing a writ petition. Vide order dated
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17 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.
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Vide order dated 12 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.
4.8 After withdrawal of the writ petition before the High
Court, the landowners amended the suit before the
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Trial Court thereby challenging the Government
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Notification dated 18 August 2004.
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4.9 On 23 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
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dated 18 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
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4 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
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Government Notification dated 18 August 2004 and
condition No.14 in the sanctioned order of layout with
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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
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resolution dated 23 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
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Notification dated 18 August 2004 by filing a writ petition in
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the year 2018. It is, therefore, submitted that the petition of
the plot holders was also liable to be dismissed.
7. Shri Kharde further submitted that the landowners
having taken the advantage of the Government Notification
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dated 18 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
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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
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Vashist (Dead) by LRs. V. Municipal Corporation of Delhi
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
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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 Re-rolling Mills and
2 3
another R.N. Gosain v. Yashpal Dhir National
4
Insurance Co. Ltd. v. Mastan and another , State of
5
Punjab and others v. Dhanjit Singh Sandhu and recently
in the case of Union of India and others v. N. Murugesan
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and others .
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.
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
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12. In the present case, in the Development Plan published
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on 15 December 1992, the properties of the landowners were
reserved as “Green Zone”/ “No Development Zone”. Vide
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Notification dated 18 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
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agreement on 27 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 also provided for an
area of 7560.09 sq. mtrs. as an ‘internal road’ area to the
Municipal Council out of the total land.
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15. On 12 January 2007, a final sanction was granted to
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the layout by the Municipal Council. On 18 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
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14 January 2015. The same was challenged before the High
Court by filing the writ petition. The writ petition was
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withdrawn vide order dated 17 January 2018.
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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
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Council vide order dated 23 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
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advantage of the Government Notification dated 18 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 High Court,
therefore, rightly found no merit in the petition of the
landowners.
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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
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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 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
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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
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Maharashtra and others 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
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the impugned common judgment and order dated 4 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
7
(2016) 4 SCC 443
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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 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.
.......................J.
[B.R. GAVAI]
.......................J.
[S.V.N. BHATTI]
NEW DELHI;
SEPTEMBER 22, 2023.
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