DECEASED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was the owner of the land bearing S. No. 477 of village Mahrum taluka, District Jalgaon, admeasuring 7 acres and 28 gunthas. The petitioner prepared a lay out of the said land which was sanctioned by the Chief Officer, Jalgaon Borough Municipality on 5th/6th March, 1965, under section 16 of the Bombay Town Planning Act, 1954. According to the lay out, the total land was divided into 42 buildable plots, roads and certain open space meant for common use and enjoyment of the said 42 plots. It appears that out of the said 42 plots, the petitioner has sold some while some plots bearing Nos. 29 to 35, together with some part of the open space, were reserved subsequently for the purpose of primary school and play ground under the development plan prepared under the Maharashtra Regional and Town Planning Act, 1966. It is not disputed that the reserved plots and part of the open space, which was reserved, have since been acquired and the Award has been passed.

(2.) THE respondent No. 2-Municipal Council, as alleged by the petitioner, without any authority of law and without following any procedure established by law, purportedly and illegally claimed that the open space under the lay out of the land bearing S. No. 477 stood vested and transferred in it; the respondent No. 2 thereafter passed a Resolution No. 83 dated 16th April, 1988 and purportedly allotted the open space to the respondent No. 6 and permitted it to construct a building to the extent of 1/10th area of the open space ostensibly for the use as a Library and Auditorium. An agreement was also entered into between the President of the 6th respondent and the Chief Officer of the respondent No. 2 regarding the allotment and transfer of the open space in the lay out in May 1988 or thereabout. The petitioner thereafter approached this Court by filing Writ Petition No. 701/90 challenging the said action. This Court, by order dated 2nd July, 1990 allowed the said writ petition and directed the respondent No. 2 to give hearing to the petitioner about his grievances within four weeks and then pass an appropriate order. Thereafter, after hearing the petitioner, the Chief Officer of the respondent No. 2 passed an order dated 20th July, 1990 declaring that the open space in S. No. 477 stood vested in the Municipal Council. This gave rise to the present petition in which the petitioner challenges the actions of the respondent No. 2.

(3.) SHRI Joshi, the learned Counsel for the respondents No. 2 and 3-Municipal Council invited our attention to Bye-law No. 14 of the Standardised Building Bye-Laws and Development Control Rules for "a" Class Municipal Councils of Maharashtra framed by the Government of Maharashtra in exercise of the powers conferred by sub-section (1) of section 323 of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (for short the Act), and which are stated to be adopted/applied by the Municipal Council. Clauses 14. 2 and 14. 3 thereof read as under: "14. 2. Open Spaces.-In any layout or sub-division of land admeasuring 0. 4 Ha. or more for residential purpose and 0. 8 Ha. or more for industrial purpose 10 percent of the total area of land shall be reserved for open space which shall as far as practicable be located in one central place. Out of such open spaces, an area to the extent of 10 per cent may be allowed to be constructed by a ground floor structure for the purpose of allied public use, such as kinder garten, library, club hall, pavilion, etc. location of such structure shall be in one corner of the open space.