2023INSC851 1

REPORTABLE

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

Court of Bombay at Aurangabad, dated 4

th July 2019, thereby

partly allowing the petition filed by the

respondents/landowners challenging the notification dated

18

th August 2004, whereby respondents’/landowners’ land

2

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:

4.1 On 15

th 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

Development Zone”. On 30

th September 2000, a

proposal regarding the conversion of land from a ‘No

3

Development Zone’ to a ‘Residential Zone’ including

the disputed property was published and objections

were invited.

4.2 On 18

th 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

the plot, and the same was granted. On 27

th 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

4

Objection’ if the same was recorded with the revenue

department.

4.4 On 12

th January 2007, final sanction was granted to

the layout by the Municipal Council. After the final

sanction was granted, another agreement was entered

into between the parties dated 18

th 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

5

was appealed before the District Court which was also

dismissed vide order dated 14

th January 2015.

Aggrieved thereby, the landowners approached the

High Court by filing a writ petition. Vide order dated

17

th 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.

Vide order dated 12

th 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

6

Trial Court thereby challenging the Government

Notification dated 18

th August 2004.

4.9 On 23

rd 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

dated 18

th 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

4

th 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

Government Notification dated 18

th August 2004 and

condition No.14 in the sanctioned order of layout with

7

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

resolution dated 23

rd 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

Notification dated 18

th August 2004 by filing a writ petition in

8

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

dated 18

th 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

9

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

Vashist (Dead) by LRs. V. Municipal Corporation of Delhi

1

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

10

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

another

2 R.N. Gosain v. Yashpal Dhir

3 National

Insurance Co. Ltd. v. Mastan and another

4 , State of

Punjab and others v. Dhanjit Singh Sandhu

5 and recently

in the case of Union of India and others v. N. Murugesan

and others

6.

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

11

12. In the present case, in the Development Plan published

on 15

th December 1992, the properties of the landowners were

reserved as “Green Zone”/ “No Development Zone”. Vide

Notification dated 18

th 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

agreement on 27

th 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.

12

15. On 12

th January 2007, a final sanction was granted to

the layout by the Municipal Council. On 18

th 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

14

th January 2015. The same was challenged before the High

Court by filing the writ petition. The writ petition was

withdrawn vide order dated 17

th January 2018.

13

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

Council vide order dated 23

rd 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

advantage of the Government Notification dated 18

th 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.

14

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

15

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

16

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

Maharashtra and others

7 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

the impugned common judgment and order dated 4

th 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

17

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.