Bombay High Court
Mahendra Shankarrao Gadve And Ors vs Municipal Corporation Of City Of Pune ... on 6 May, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:21522-DB
WP_5838_10 & ors.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5838 OF 2010
Pune Ex-servicemen Co-operative Housing
Society Ltd. ... Petitioner
vs.
The Municipal Corporation of City of Pune
and others ... Respondents
WITH
WRIT PETITION NO. 1991 OF 2005
Mahadev Balaji Walvekar (since deceased)
Through LRs, and another ... Petitioners
vs.
The Municipal Corporation of City of Pune
and others ... Respondents
WITH
CIVIL APPLICATION NO. 2396 OF 2008
IN
WRIT PETITION NO. 1991 OF 2005
Ulhas V. Dhorje and others ... Applicants
In the matter between:
Mahadev Balaji Walvekar (since deceased)
Through LRs, and another ... Petitioners
vs.
The Municipal Corporation of City of Pune
and others ... Respondents
WITH
WRIT PETITION NO. 2119 OF 2005
Mahendra Shankarrao Gadve and others ... Petitioners
vs.
The Municipal Corporation of City of Pune
and another ... Respondents
Digitally
signed by
PRIYA Date:
PRIYA KAMBLI
KAMBLI 2026.05.06
17:22:00
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WITH
WRIT PETITION NO. 4433 OF 2006
Vijay Sanghavi ... Petitioner
vs.
The Municipal Corporation of City of Pune
and another ... Respondents
WITH
WRIT PETITION NO. 8720 OF 2010
Ramdas Krishnarao Tulshibagwale and another ... Petitioners
vs.
The Municipal Corporation of City of Pune
and others ... Respondents
Mr. G. S. Godbole, Senior Advocate, i/b. Mr. Siddhartha Ronghe for
petitioners in WP/1991/2005.
Petitioner is served (through Court service notice) in WP/4433/2006.
Mr. S. S. Kanetkar for petitioner in WP/5838/2010 and WP/2119/2005.
Mr. Sagar Joshi for applicant in CAW/2396/2008.
Mr. Drupad Patil for petitioner in WP/8720/2010.
Mr. Rajdeep Khadapkar for respondent Nos.1 to 3 in WP/5838/2010.
Mr. R. M. Pethe for respondent No.1 in WP/1991/2005 and
WP/2119/2005, WP/4433/2006 and for respondent Nos.1 and 2 in
WP/8720/2010.
Mr. A. I. Patel, Addl. GP a/w. Ms. Tanu N. Bhatia, AGP for respondent No.5
- State in WP/5838/2010.
Ms. G. R. Raghuwanshi, AGP for respondent No.3 - State in
WP/1991/2005.
Ms. M. S. Bane, AGP for respondent No.2 - State in WP/2119/2005.
Mr. R. S. Pawar, AGP for respondent No.2 - State in WP/4433/2006.
Ms. P. M. J. Deshpande, AGP for respondent No.4 - State in
WP/8720/2010.
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
Reserved on : 25th MARCH, 2026
Pronounced on : 06th MAY, 2026
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JUDGEMENT :(Per Justice Manish Pitale) . These petitions challenge the constitutional validity of Rule 13.3.1.5 of the Development Control Rules (the said Rule) for the city of Pune. The petitioners claim that the said Rule violates Article 300A of the Constitution of India and they also claim that the said Rule could not have been framed with reference to Sections 202 and 203 of the then Bombay Provincial Municipal Corporations Act, 1949 (BPMC Act) [now the Maharashtra Municipal Corporations Act, 1949 (MMC Act)], as the said sections pertain to vesting of public streets in the Corporation, with no reference to open spaces in private sanctioned layouts. The petitioners also contend that the said Rule gives unbridled power to the respondent - Pune Municipal Corporation (PMC) to enter upon and take over the open spaces in such private layouts, without any reference to acquisition and upon payment of illusory compensation of ₹ 1 only.
2. All these petitions were filed when the respondent - PMC caused public notices to be issued in newspapers, declaring that it was taking over open spaces in layouts concerning the petitioners. The petitioners claim that this was wholly arbitrary and in exercise of power under the said Rule, which itself is constitutionally invalid. The respondent - PMC and respondent - State have opposed the contentions raised on behalf of the petitioners. In all these petitions, Rule was granted with interim relief in favour of the petitioners, during the pendency of these petitions.
3. It would be necessary to briefly refer to the chronology of events in each of the petitions, leading to challenge raised in these 3/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc petitions. Since Writ Petition No.5838 of 2010 was argued as the lead petition, this Court is first referring to the facts pertaining to the said petition.
4. In Writ Petition No.5838 of 2010, the petitioner is Pune Ex- servicemen Co-operative Housing Society Ltd., which is aggrieved by a public declaration dated 11.02.2010 published in Daily Sakal, whereby it was stated that since the open spaces in the layout of the petitioner - society were being misused, the PMC was taking possession of the open spaces, as per the said Rule. The said society was registered on 24.05.1948 and by an order dated 20.05.1957, the Collector of Pune allotted the land to the society in Survey No.48/1, Erandwane, Pune. The society consists of members (plot holders), who have constructed their individual structures on the plots. The revised layout of the society was sanctioned by PMC on 10.05.1994, which specified five open spaces. This constituted 10% of the total area of the plot of land of the petitioner - society.
5. According to the society, one of such open spaces numbered as 'C', was in danger of being misused, as residents of slum abutting the land of the petitioner - society, were making attempts to encroach upon the open space. It was found that cattle and other animals from the abutting area were entering into the said open space. In that backdrop, the petitioner - society intended to engage an agency to develop the plot as garden, which would be used for recreation activities. One individual came forward, but he could not develop the plot and in that light, the petitioner - society engaged an entity called Surabhi Nursery, which developed the open space as a jogging park with sitting arrangement for members. At the time of filing of the petition, the petitioner - society claimed that its members were 4/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc using the said facility. It appears that a complaint was submitted to the respondent - PMC that the open space was not being used properly and in that backdrop, on 11.02.2010, the aforementioned declaration was published by the said respondent in Daily Sakal, stating that possession of the open space was being taken on nominal compensation of ₹ 1, as per the said Rule.
6. It is in this backdrop that the petitioner - society filed the aforesaid petition, raising various grounds, including the ground of violation of Article 300A of the Constitution of India, challenging the constitutional validity of the said Rule. On 30.07.2010, this Court granted Rule in the petition and directed the parties to maintain status quo.
7. In Writ Petition No.1991 of 2025, the petitioners are aggrieved by a declaration published by the respondent - PMC on 11.10.2004, stating that it intended to take possession of the open spaces in the layout in Walvekar Nagar, by exercising power under the said Rule, on the ground that such open spaces were being misused. It was further stated that if any person had any objection, the same be raised within one month. The petitioners in the said petition are members of Walvekar family, who are owners of open spaces in sanctioned layout. The said petitioners specifically stated that in the year 1971, the aforesaid layout was approved by PMC in respect of lands at Survey Nos.50, 52 and 53 in Pune. Open spaces were earmarked in the said approved/sanctioned layout. Thereafter, on 05.01.1987, the aforesaid DC Rules were sanctioned along with development plan and they came into effect from 05.02.1987. The petitioners stated that since the layout was sanctioned prior to the DC Rules coming into force, they obviously would not apply to the said layout.
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8. It is stated that upon the said declaration being published in newspaper on 11.10.2004 by respondent - PMC, the petitioners sent a notice to the said respondents on 03.03.2005. However, the petitioners were shocked and surprised to read a report in Indian Express newspaper dated 04.03.2005 that the PMC had purportedly taken possession of the said open space in the aforementioned layout. When the petitioners visited the open space, they found a local politician and an influential corporator, personally taking efforts with the officers of respondent - PMC to take possession of the open space. In that light, the petitioners rushed to file the aforementioned petition.
9. In the said petition, numerous grounds have been raised, challenging the aforesaid action of respondent - PMC. The constitutional validity of the said Rule was also challenged. On 02.05.2005, this Court granted status quo in the matter. Subsequently, on 26.10.2005, this Court granted Rule. It was further observed that in view of the statement made in the affidavit-in-reply that possession of open space was taken, interim relief was refused and hearing was expedited. Intervention application bearing Civil Application No.2396 of 2008 was filed in the said petition, which has remained pending.
10. In Writ Petition No.2119 of 2005, the petitioners have challenged similar declaration issued by respondent - PMC in a newspaper on 07.02.2005, stating that the open space in sanctioned layout of land bearing Survey No. 46/1B + 2/B at Parvati, Pune was intended to be taken, purportedly for developing a garden. It was stated that if any person had any objection, the same be raised within 6/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc a month of publication of the said declaration/notice. The petitioners have referred to the framing of DC Rules brought into effect from 05.02.1987. It was specifically stated that the petitioners, on 03.10.2003, had applied to respondent - PMC for creating recreation centre and club house in the open land. The Assistant Engineer of PMC called upon the architect to comply with certain requirements. Thereafter, certain objections were raised with regard to the proposal submitted by the architect.
11. On 23.10.2004, the architect submitted an application before respondent - PMC with consent letter of the plot holders of the layout. The fresh application was under consideration when suddenly, at this stage, on 07.02.2005, respondent - PMC published the aforesaid declaration in the newspaper. It is further stated that since the petitioners believed that deemed permission had been granted, a barbed wire fencing was erected around the open space, in order to secure the plot. They filed Regular Civil Suit No.373 of 2005 to challenge a notice dated 03.03.2005 issued by respondent - PMC against the petitioners for having erected the said fence. An ad- interim injunction was granted against the said respondent from removing the barbed wire fencing. The petitioners also filed Regular Civil Suit No.374 of 2005, seeking declaration and injunction in respect of advertisement published by respondent - PMC.
12. But since the petitioners contended that the very source of power exercised by respondent - PMC i.e. the said Rule was unconstitutional, they were constrained to file the aforesaid writ petition. They have raised detailed grounds to challenge the constitutional validity of the said Rule and also against the arbitrary action undertaken by respondent - PMC. In the said writ petition, on 7/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc 02.05.2005, interim order of status quo was granted. On 27.09.2005, Rule was granted and interim order was continued.
13. In Writ Petition No. 4433 of 2006, the petitioner is aggrieved by a declaration published by respondent - PMC on 09.06.2006, stating that possession of open space would be taken from the sanctioned layout in land bearing Survey Nos.148, 150 and 151 of Aundh, Pune, on the ground that the open space was being misused. It was stated that nominal compensation of ₹ 1 shall be given for taking over the open space. The petitioner in the said petition stated that the aforementioned layout was sanctioned on 27.11.1973 and thereafter, the aforesaid DC Rules came into operation from 05.02.1987. It was stated that the petitioner and others had planted trees in the open space and yet, the aforesaid impugned action was sought to be taken by respondent - PMC.
14. The petitioner has referred to exchange of communications with the said respondent on the allegation of misuse of open space and in this petition also, similar grounds regarding unconstitutionality of the said Rule along with other contentions, have been raised. In this petition, Rule was granted on 31.08.2006 and interim relief was granted in terms of prayer clauses (c) and (d), thereby restraining the respondents, including PMC, from carrying out any development work on the open space and also, preventing the petitioners from proceeding with development of the same.
15. In Writ Petition No. 8720 of 2010, the petitioners are aggrieved by declaration issued on 01.10.2009, similarly threatening taking over possession of open space in the sanctioned layout in land bearing Survey Nos.89/2, 90/2 and 91/2 of Pune. The layout was sanctioned on 24.12.1954, much prior to the aforesaid DC Rules 8/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc coming into operation from 05.02.1987. In this petition, it was specifically stated that there were certain complaints received by respondent - PMC about the alleged misuse of the open space in the layout. In that context, internal reports indicated that there was dispute whether the open space was being misused or not. In any case, in November/December 2007, the Deputy City Engineer of PMC opined that it would be appropriate that the said spaces are acquired as per the provisions of the Land Acquisition Act, 1894. Accordingly, a letter dated 31.12.2008 was addressed by the City Engineer for acquisition. It was stated that in this backdrop, the local corporator was insisting on taking recourse to the said Rule.
16. On 01.01.2009, the City Engineer submitted a report to the Commissioner of PMC that acquisition proceeding was being undertaken for open space in the said layout. On 09.07.2009, the Special Land Acquisition Officer addressed a letter to the Special Officer (Planning and Acquisition) and Deputy Engineer, (Development Control Department), stating that acquisition of open space in the layout of petitioners, was under progress as per order of the Collector dated 12.10.2001. Joint measurement maps were forwarded and while the aforesaid process of acquisition appeared to be very much in progress, suddenly the aforementioned declaration was published in October 2009 in a local newspaper, stating that the open space in the said layout was to be taken over by respondent - PMC for nominal compensation of ₹ 1, under the said Rule. According to the petitioners, this was a wholly arbitrary act undertaken by the said respondent on the basis of the said unconstitutional Rule. Upon the petitioners filing the present petition, on 24.08.2011, this Court granted order of status quo. On 09.11.2011, Rule was granted in the said petition also.
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17. All the five petitions were tagged together for hearing. They were taken up for final hearing.
18. Mr. Godbole, the learned senior counsel appeared for petitioners in Writ No.1991 of 2005. Mr. Kanetkar appeared for petitioners in Writ Petition Nos.2119 of 2005 and 5838 of 2010 and Mr. Drupad Patil appeared for petitioner in Writ Petition No.8720 of 2010. The learned counsel referred to the facts pertaining to the individual writ petitions, but their submissions in respect of issues arising in the writ petitions were common and hence, their submissions are being referred to below:
(a) It was submitted that the said Rule for the city of Pune, is unconstitutional as it violates Article 300A of the Constitution, inasmuch as illusory compensation of ₹ 1 is offered for taking away the common spaces in the layouts with which the petitioners are concerned. It was submitted that although the right to property no longer remained a fundamental right and it was now a constitutional right under the said Article, any law seeking to take away the rights of citizens in property, had to pass the test of reasonableness and non-arbitrariness under Article 14 of the Constitution. It was submitted that the said Rule completely failed to pass the said test and hence, it is required to be declared as unconstitutional.
(b) It was submitted that the said Rule specifically referred to Sections 202 and 203 of the BPMC Act. But, the said sections pertain to vesting of public streets in the Municipal Corporation, in this case, the respondent - PMC. The said provisions are found in Chapter XIV, which pertains only to streets. The said chapter and the provisions contained therein, including Sections 10/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc 202 and 203 thereof, have nothing to do with open spaces and yet, the said Rule identifies its source of power in the said provisions. Therefore, the said Rule is ultra vires the BPMC Act itself. On this ground also, the petitions deserve to be allowed.
(c) There is no statutory source of power for enacting the said Rule, which effectively takes away the land in common spaces of layouts to the detriment of the plot holders in the society and the land owners. The compensation of merely ₹ 1 is illusory and hence, it violates the rights of the petitioners. Reliance is placed on the judgements of the Supreme Court in the cases of Yogendra Pal and others vs. Municipality, Bhatinda and another , (1994) 5 SCC 709 and Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi, (1995) 1 SCC 47 and recent judgement in the case of Bernard Francis Joseph Vaz and others vs. Government of Karnataka and others, (2025) 7 SCC 580. Much emphasis is placed on the observations made by the Supreme Court in the case of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra), wherein it was observed that mere use of word 'transferred' in the subject provision, would not save the action of the respondents, for the reason that even if the word 'acquired' was not used, the land owner or the society of plot holders lose their rights of ownership, for which they need to be compensated in a fair and reasonable manner.
(d) The learned counsel for the petitioners placed reliance on the judgement of this Court in the case of Vrajlal Jinabhai Patel and another vs. State of Maharashtra and others , (2003) 3 Mh.L.J. 215, wherein this Court considered an identical bye-law of the Standardised Building Bye-laws and Development Control Rules, framed under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. This Court held 11/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc that the said bye-law referred to Section 183 of the said Act relating to new streets, having nothing to do with open spaces and yet, it effectively provided for acquisition of the open spaces in the layout for illusory compensation of ₹ 1. The said petition was allowed and the resolution of municipal council was set aside. A similar view was taken by this Court in the case of State of Maharashtra vs. Bhimashankar Sidramappa Chippa , 2009 (5) Mh.L.J. 76. It was emphasized that in the said case also, compensation of only ₹ 1 had been offered.
(e) It was further submitted that the said position of law was reiterated in a recent judgement of this Court in the case of Sha Vijay Anandrao Sawant and others vs. Baramati Nagar Parishad and others, (judgement and order dated 03.12.2025 passed in Writ Petition No.1239 of 2002). This Court held in favour of the petitioners therein in the context of a similar Rule/regulation, providing for handing over of open spaces to the planning authority for nominal amount of ₹ 1 towards compensation. On this basis, it was submitted that the Supreme Court as well as this Court has consistently quashed and set aside such action taken by planning authorities and municipal bodies, seeking to acquire or transfer open spaces in developed layouts, either without compensation or with illusory compensation of ₹ 1.
(f) It was further submitted that in these writ petitions, all the layouts were sanctioned much prior to the aforesaid DC Rules coming into force for the city of Pune on 05.02.1987. The said Rules were dated 05.01.1987, but they came into effect from 05.02.1987. It was submitted that therefore, the respondent - PMC was not justified in relying upon the said Rule to virtually take away the land concerning open spaces in the layouts, by offering illusory compensation of ₹ 1.
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(g) It was submitted that the said Rule is further unsustainable, for the reason that it is open to arbitrary use by the respondent - PMC. There is no definition of 'misuse' of open spaces and therefore, the respondent - PMC can use the said Rule in an unbridled manner, claiming misuse to then walk into the said open spaces of the layout, by relying upon the said Rule and offering illusory compensation of mere ₹ 1. It was further submitted that none of the petitioners were ever issued prior notices about the alleged misuse.
(h) It was submitted that even as per the understanding of the officials of respondent - PMC, in one of the writ petitions before this Court in this bunch, the concerned authorities had already initiated the process of acquisition, even approaching the Land Acquisition Officer for the same and then, suddenly issued the paper publication, purporting to take the open spaces in the layout, by relying upon the said Rule. This further indicates the arbitrary nature of actions undertaken by respondent - PMC in a large measure on the basis of the unbridled and arbitrary power available to the said respondent, under the said Rule.
(i) It was submitted that the respondent - PMC cannot rely upon the judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others , (2024) 18 SCC 443, for the reason that the facts in the said case are clearly distinguishable. Much emphasis was placed on the fact that in the said case, the development plan, master plan and town planning scheme having statutory source of power, had framed a particular Rule in the Development Control Rules, which the Supreme Court, on facts, found to be 'law' under Article 300A of the Constitution, which was sustainable. The manner in which the Supreme Court distinguished the said case 13/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc from the judgements in the cases of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra), Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (supra) and other such cases, itself demonstrates the fallacy in the contention raised on behalf of the respondent - PMC. It was submitted that the issue raised in the present writ petitions stood covered in the aforementioned earlier judgements of the Supreme Court and hence, the respondent - PMC cannot justify the impugned Rule on the basis of the judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra).
(j) It was further submitted that when the respondent - PMC and the State authorities were unable to justify their contentions, they took a stand that the impugned declarations published in newspapers by relying upon the said Rule, did not amount to an action for acquisition of land pertaining to open spaces in the layout, but it was merely exercising police powers for management of open spaces. It was submitted that the said contention deserves to be rejected, as it is an after-thought and there is no material on record to support the same. As a matter of fact, it was submitted that a similar contention sought to be raised in the case of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra), was rejected by the Supreme Court.
19. On the basis of the aforesaid submissions, it was contended on behalf of the petitioners that the writ petitions ought to be allowed in terms of the prayers made therein.
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20. On the other hand, Mr. Pethe, learned counsel appearing for respondent - PMC submitted as follows:
(a) It was submitted that the contentions raised on behalf of the petitioners, by relying upon the judgements of the Supreme Court in the case of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra) and Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (supra), are unsustainable. It was submitted that in the case of Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (supra), a resolution of the municipal body was subject matter of challenge and there was no reference to any statutory provision or Rule. In such circumstances, the Supreme Court held that the action taken by the said municipal body was not sustainable, without determination and payment of compensation. In the case of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra), although the statutory provision was considered, it was crucial to note that the said case pertained to the time period when the right to property was a fundamental right. The instant petitions are to be considered on the touchstone of the right to property being a constitutional right under Article 300A of the Constitution and not a fundamental right.
(b) It was submitted that as per Article 300A of the Constitution, a person can be deprived of property by authority of law. It was submitted that in the present case, the said Rule is the law upon which the respondent - PMC has placed reliance to justify its actions. In this context, much reliance was placed in the aforesaid judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra). It was submitted that in the said recent judgement, the Supreme Court took into consideration the 15/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc whole cross-section of views in the earlier judgements on the nature of right protected under Article 300A of the Constitution.
It was submitted that a similar Development Control Rule was upheld as good law for requiring execution of gift deed in respect of 10% land to be kept for open spaces in a development project, without payment of any compensation. It was submitted that the said latest position of law clearly covered the matter in favour of the respondent - PMC and therefore, the petitions deserve to be dismissed.
(c) It was emphasized that in the facts of the present case, the action on the part of the respondent - PMC was necessitated, due to misuse of open spaces in the layouts. In such a situation, the respondent - PMC exercised its police power of management and maintenance of open spaces and this clearly does not amount to acquisition of land concerned with the open spaces. Much emphasis was placed on the second limb of the said Rule, to contend that the action of the said respondent was for greater public good. The open spaces are lungs of the city and such open spaces cannot be permitted to be wasted or misused by the land owners or plot holders in the layout. On this basis, the action was sought to be justified.
(d) The judgements relied upon by the petitioners were sought to be distinguished on facts and it was submitted that the present cases were clearly covered under the recent judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra). It was emphasized that in one of the cases, after taking possession of the open space, the respondent - PMC had developed a garden for public use and hence, this Court may not show any indulgence to the petitioners.
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21. Mr. Patel, learned AGP appearing on behalf of the respondent - State, vehemently defended framing of the said Rules. He submitted that the development plan under Sections 22 and 26 of the Maharashtra Regional and Town Planning Act, 1966, mandated open spaces to be kept available in layouts and therefore, the subject DC Rules also provided for the same. On this basis, it was submitted that insofar as the open spaces are concerned, the planning authority would be entitled to take over the same, for ensuring that such open spaces are utilized for the common benefit of the occupants as well as the public at large.
22. It was submitted that the nature of power exercised under the aforesaid Rule did not result in ownership or absolute ownership changing hands and therefore, only a nominal compensation of ₹ 1 was provided therein. The learned AGP also placed emphasis on the second part of the said Rule, to contend that there was absence of absolute vesting, thereby justifying the framing of the said Rule under Sections 202 and 203 of the BPMC Act, now the MMC Act.
23. The learned AGP also submitted that the said Rule does not pertain to either acquisition or arbitrary deprivation of property. Instead, it was a condition voluntarily accepted by the developer, in exchange of valuable rights. In this context, much emphasis was placed on the fact that no separate FSI or utilization of space was available for the open spaces, as the same stood utilized in the other parts of the layout, where the plots had been demarcated for development. On this basis, it was submitted that nominal value of ₹ 1 for compensation, was clearly justified.
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24. The learned AGP also relied upon the recent judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra), to support the contentions raised by the learned counsel for the respondent - PMC. On this basis, it was submitted that the writ petitions deserve to be dismissed.
25. This Court has carefully considered the rival submissions. The judgements referred to by the learned counsel for the rival parties show that they pertain to the right to property. It is to be noted that the judgements need to be appreciated in the backdrop of the fact that while the right to property was earlier recognized as a fundamental right under Article 19(1)(f) of the Constitution, by the 44th amendment of the Constitution, the said Article 19(1)(f) was deleted and instead, the right to property was recognized as a constitutional right under Article 300A of the Constitution. Even though the right to property is now a constitutional right, instead of being a fundamental right, the Supreme Court, in various judgements, including judgement in the case of Bernard Francis Joseph Vaz and others vs. Government of Karnataka and others (supra), has recognized that the said right is a human right, which cannot be casually trampled upon.
26. In the case of Kolkata Municipal Corporation and another vs. Bimal Kumar Shah and others, (2024) 10 SCC 533, the Supreme Court considered the nature of the right to property as a constitutional right under Article 300A and recognized 7 sub-rights within the said right under the said Article and observed as follows:
'30. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right 18/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc to property? Seven such sub-rights can be identified, albeit non-exhaustive. These are:
(i) The duty of the State to inform the person that it intends to acquire his property -- the right to notice,
(ii) The duty of the State to hear objections to the acquisition -- the right to be heard,
(iii) The duty of the State to inform the person of its decision to acquire -- the right to a reasoned decision,
(vi) The duty of the State to demonstrate that the acquisition is for public purpose -- the duty to acquire only for public purpose,
(v) The duty of the State to restitute and rehabilitate -- the right of restitution or fair compensation,
(vi) The duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings -- the right to an efficient and expeditious process, and
(vii) The final conclusion of the proceedings leading to vesting -- the right of conclusion.
31. These seven rights are foundational components of a law that is tune with Article 300-A, and the absence of one of these or some of them would render the law susceptible to challenge. The judgment of this Court in K.T. Plantation [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1: (2011) 4 SCC (Civ) 414] declares that the law envisaged under Article 300-A must be in line with the overarching principles of rule of law, and must be just, fair, and reasonable. It is, of course, precedentially sound to describe some of these sub- rights as "procedural", a nomenclature that often tends to undermine the inherent worth of these safeguards. These seven sub-rights may be procedures, but they do constitute the real content of the right to property under Article 300-A, non- compliance of these will amount to violation of the right, being without the authority of law.
32. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by 19/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the constitutional and administrative law culture that our courts have evolved from time to time.'
27. In the case of K. T. Plantation Private Limited and another vs. State of Karnataka, (2011) 9 SCC 1, a Constitution Bench of the Supreme Court, in the context of Article 300A of the Constitution, referred to the twin aspects of public purpose and compensation, concerning the right to property and held that a law or a Rule depriving a person of a property, is amenable to judicial review. The Supreme Court in the said judgement, examined as to whether there was a requirement of payment of compensation as a rule, after deletion of Article 31(2) of the Constitution, in the context of right to property under Article 300A. The relevant discussion in the said judgement is as follows:
'189.Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a precondition, but no compensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.
190. Article 300-A would be equally violated if the provisions of law authorising deprivation of property have not been complied with. While 20/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc enacting Article 300-A Parliament has only borrowed Article 31(1) (the "Rule of Law" doctrine) and not Article 31(2) (which had embodied the doctrine of eminent domain). Article 300-A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution.
The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.
191. The legislation providing for deprivation of property under Article 300-A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.
192. At this stage, we may clarify that there is a difference between "no" compensation and "nil" compensation. A law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid". However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the Government to establish validity of such law. In the latter case, the Court in exercise of judicial review will test such a law keeping in mind the above parameters.
193. Right to property no more remains an overarching guarantee in our Constitution, then is it the law, that such a legislation enacted under the authority of law as provided in Article 300-A is immune from challenge before a constitutional court for violation of Articles 14, 21 or the overarching principle of the rule of law, a basic feature of our Constitution, especially when such a right is not specifically incorporated in Article 300-A, unlike Article 30(1-A) 21/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc and the second proviso to Article 31-A(1).
194. Article 31-A was inserted by the First Amendment Act, 1951 to protect the zamindari abolition laws and also the other types of social, welfare and regulatory legislations affecting private property. The right to challenge laws enacted in respect of subject-matter enumerated under Article 31-A(1)( a) to (g) on the ground of violation of Article 14 was also constitutionally excluded.
195. Article 31-B read with Schedule IX protects all laws even if they are violative of the fundamental rights, but in I.R. Coelho case [(2007) 2 SCC 1] , a Constitution Bench of this Court held that the laws added to Schedule IX, by violating the constitutional amendments after 24-12-1973, if challenged, will be decided on the touchstone of right to freedom guaranteed by Part III of the Constitution and with reference to the basic structure doctrine, which includes reference under Article 21 read with Articles 14, 15, etc. Article 14 as a ground would also be available to challenge a law if made in contravention of Article 30(1-A).
196. Article 265 states that no tax shall be levied or collected except by authority of law, then the essential characteristics of tax is that it is imposed under statutory power, without taxpayer's consent and the payment is enforced by law.
197. A Constitution Bench of this Court in Kunnathat Thatehunni Moopil Nair case [AIR 1961 SC 552] held that Sections 4, 5-A and 7 of the Travancore- Cochin Land Tax Act were unconstitutional as being violative of Article 14 and was held to be in violation of Article 19(1)(f). Of course, this decision was rendered when the right to property was a fundamental right.
198. Article 300-A, unlike Articles 31-A(1) and 31-C, has not made the legislation depriving a person of his property immune from challenge on the ground of violation of Article 14 or Article 21 of the Constitution of India, but let us first examine whether Article 21 as such is available to challenge 22/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc a statute providing for no or illusory compensation and, hence, expropriatory.'
28. Thereafter, the Supreme Court in the said case, made the following emphatic statement:
'219.One of the fundamental principles of a democratic society inherent in all the provisions of the Constitution is that any interference with the peaceful enjoyment of possession should be lawful. Let the message, therefore, be loud and clear, that the rule of law exists in this country even when we interpret a statute, which has the blessings of Article 300-A.'
29. On this basis, in the said judgement, the Supreme Court held that a statute depriving a person of a property, is amenable to judicial review on grounds indicated above and that public purpose is a pre- condition of depriving a person of his property under Article 300A of the Constitution and right to claim compensation is also inbuilt in that Article, further observing that when a person is deprived of his property, the State has to justify its action and the concerned Rule/law is also required to be justified.
30. Therefore, we are of the opinion that the respondents cannot refute the contentions raised on behalf of the petitioners, only on the ground that right to property is no longer a fundamental right and that it is now merely a constitutional right guaranteed under Article 300A of the Constitution.
31. But, before examining as to whether the said Rule qualifies as 'law' to come to the rescue of the respondents to claim that the impugned action being with authority of law, does not violate Article 300A of the Constitution, it would be appropriate to first deal with 23/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc the contention raised on their behalf that in the present case, there is no acquisition or taking over of the land concerning open spaces, but it is merely taking over of management of the open spaces by exercising police powers. In order to test the said contention, it is necessary to examine the impugned declarations published on behalf of the respondent - PMC in the newspapers that led to the petitioners rushing to this Court.
32. A bare perusal of the said declarations published in newspapers on behalf of respondent - PMC shows that specific reliance is placed on the said Rule and it is asserted that the said respondent is taking possession of the lands concerning open spaces for nominal compensation of ₹ 1. These declarations proceeded on the basis that the open spaces have been 'misused'. The said declarations were not preceded by any show cause notice to either the society of plot holders, individual plot holders in the layouts or the land owners, who had developed the layouts. In the declarations, the said respondent called for objections within a month, indicating that such an opportunity was granted post-issuance of such declarations.
33. The respondents have asserted that the impugned declarations do not amount to acquisition or intention to acquire the lands in the open spaces for nominal compensation of ₹ 1, as transferring of the open spaces to respondent - PMC would not amount to acquisition. An identical contention was raised on behalf of a similarly placed municipal body before the Supreme Court in the case of Yogendra Pal and others vs. Municipality, Bhatinda and another (supra). While dealing with the said contention, the Supreme Court observed as follows:
24/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 :::WP_5838_10 & ors.doc '15. The contention that the expression used in the said provision being "transferred" and not "acquired" would show that the rights and interests of the landowner in the land in question are not extinguished and he continues to remain the owner thereof, the transfer being only for a limited purpose, has only to be stated to be rejected. As pointed out above, there is no provision in the Act to suggest that in spite of the land being used for a public purpose, the possession, ownership or occupation, of the transferred land remains with the landowner and that he can deal with or dispose of the same as he desires. In fact, the provision shows that he can exercise his rights over the land so transferred only as a member of the public and no longer as the owner of the land. His rights vis-a-vis the transferred land are on a par with those of the other members of the public. It is also not correct to say that the purpose is limited. We have been unable to understand the expression "limited" in the present context. It is not suggested that the purpose for which the land is taken is of a limited duration and that the land would be restored to the landowner after the purpose is over. In fact, even for such use of the land for a limited period, the landowner will have to be compensated suitably.
16. We may in this connection contrast the provisions of Section 192(1)(c) with those of Section 169. The said section gives the Municipal Committee powers in connection with laying and making public streets and constructing tunnels and other works subsidiary thereto. Clause (f) of the said section provides for acquisition of any land along with the building thereon for that purpose. The proviso to clause ( g) of the said section provides that the land so acquired shall become the absolute property of the Municipal Committee after it has continuously vested in it for use as a public street for a period of 25 years and that if the land so acquired is not needed for use as a public street before the expiry of 25 years from the time that it became vested in the Municipal Committee, it shall be transferred back to the proprietor of the land on payment by him of 25/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc reasonable compensation to the Municipal Committee for improvement made on such land and subject to such restrictions as the Municipal Committee may impose on the future use of such land. If the proprietor is unable or unwilling to pay the amount of such compensation, the Municipal Committee is authorised to sell the land subject to such conditions as it may deem fit and has to pay to the owner the proceeds, if any, over and above the amount of such compensation. Thus, the provisions of Section 169 which give powers to the Municipal Committee for laying public streets show firstly that the Municipal Committee has to acquire the land for the purpose by paying compensation to the landowner. Secondly, if such acquired land continues to be with the Municipal Committee for use as a public street for a period of 25 years or more, it becomes the absolute property of the Municipal Committee in the sense that there is no obligation on the Municipal Committee for restoring its possession to the original owner of the land even if the land ceases to be used for the purpose thereafter. However, if such land ceases to be required for use as a public street before the expiry of 25 years from the time that it was acquired, there is an obligation on the Municipal Committee to transfer the same to its original owner albeit on payment by him of reasonable compensation to the Committee for improvement made on such land and subject also to his using the said land in accordance with the restrictions that the Municipal Committee may impose. If the original landowner is unable or unwilling to pay the amount of compensation, the Municipal Committee is given power to sell it.
However, in that case, it has to pay to the original landowner the proceeds of such sale, if any, which are over and above such compensation. These provisions of Section 169 show that there is a distinct inconsistency between them and the provisions of Section 192(1)(c). Whereas under
Section 169, the land is to be acquired only for making or laying public streets, under Section 192(1)(c), the land may be "transferred" for any public purpose including for use as a public street. Further, under Section 169, the land is to be 26/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc acquired by payment of compensation for the whole of it and, as pointed out above, if within 25 years of such acquisition it is not required for use as a public street it is to be restored to the original landowner subject to his agreeing to pay the compensation for the improvement made thereon and accepting the restrictions as may be imposed by the Municipal Committee for its future use. What is more, if he is unable or unwilling to take the land back on the said terms, and the Municipal Committee sells such land to others, he is entitled to receive the excess sale proceeds, if any. However, under Section 192(1)(c), no compensation is payable to the landowner when the land "transferred" even though for use as public street is below 25 per cent of the total land of the landowner and the rate at which the compensation shall be paid when it is above 25 per cent, is in the discretion of the Municipal Committee. What is more, when the land is so transferred for use as public street under Section 192(1)(c), the land remains forever with the Municipal Committee and there is no provision for its restoration to the landowner even if it is not required or ceases to be required for use as public street within 25 years of such transfer.
17. The contention that the expression used under Section 192(1)(c) is "transferred" as against "acquired" and, therefore, the landowner does not lose his rights of ownership and that the possession continues to be with the landowner has also no merit. In the absence of any provision in the Act which suggests that the landowner continues to be the owner of the land or that the land remains in his possession in spite of the transfer and that he is entitled to deal with or dispose of the same as he desires, it is obvious that the use of the word "transferred" is a euphemism for "acquisition". We have also emphasised above the fact that if the land was not to vest in the Municipal Committee there was no need for the Legislature to provide for payment of compensation even when the land so "transferred" exceeds 25 per cent of the total holding of the landowner. We are, therefore, more than satisfied that when the land is "transferred"27/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 :::
WP_5838_10 & ors.doc under Section 192(1)(c) of the Act, the transfer is nothing short of acquisition divesting the landowner of all his rights as owner of the land.
18. The next contention is that the transfer of the land is also for the benefit of the transferor landowner and in fact the balance of the land which remains with him appreciates in value to an extent which more than sufficiently compensates him for the loss of the land. Hence there is no need to pay him separate compensation for the extent of land up to 25 per cent transferred to the Municipal Committee. The contention suffers from several fallacies. In the first instance, as the provisions of the section themselves point out, the land is to be transferred for a public purpose including for use as public street. The purpose of the transfer itself suggests that the transferor landowner is not exclusively to be benefited by the public purpose. He enjoys the benefit, if any, along with the other members of the public. There is no reason why, therefore, he should alone pay for the said benefit in terms of his land. Secondly, the public purpose which is served by the Municipal Committee, assuming it increases the value of the remaining land, also contributes to the increase in the value of the land of all other landowners, which lands are similarly benefited by the said public purpose. There is, therefore, no reason why the landowner whose land is "transferred" for the purpose alone should pay for the increase in the value of his remaining land in terms of the transferred land. In fact, whereas it is only the remaining land of the transferor landowner which is benefited by such increase in value, if any, the whole of the land in the possession of the other landowners is benefited by the accretion in value. Thus, on both accounts, there is a clear violation of Article 14 of the Constitution to make only the transferor landowner suffer for the public purpose. What is further, it is problematic and is in the realm of speculation as to whether the appreciation of the value of the remaining property of the transferor landowner will always be equivalent to or more than the value of the land transferred to the Municipal Committee, assuming that the public 28/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc purpose for which the land is taken over contributes to the increase in the value of the remaining property. Lastly, and this is equally important, in many cases the accretion to the value of the remaining property may merely be on paper and be a poor consolation to the transferor landowner if he cannot or is unable for one reason or the other to sell or otherwise dispose of the said property. On the other hand, in such cases, the accretion in value may prove a burden if the property tax, wealth tax, estate duty etc. are calculated on the basis of the market value of the property. The so-called increase in the value of the property may thus prove a liability to those who cannot dispose of their property. Looked at from any angle, the argument that the transferor landowner is benefited because his remaining property appreciates in value and, therefore, he need not be paid separate compensation for the land which is transferred, is untenable in law. We thus find that the provisions of Section 192(1)(c) are violative of Article 14 of the Constitution.'
34. In the light of the said position of law clearly laid down by the Supreme Court in the aforementioned judgement, we find that the contention raised on behalf of the respondents that the impugned declarations do not amount to acquisition of the lands concerning open spaces in the layouts, is unsustainable. Hence, it is rejected.
35. We find that the argument raised on behalf of the respondents that only management of open spaces was intended to be taken over by the impugned declarations in exercise of 'police powers' of the State, apart from being an after-thought, is not sustainable on the very contents of the impugned declarations. We find that by the impugned declarations, the respondent - PMC took over/intended to take over and acquire the lands concerning open spaces in the layouts, for the aforesaid nominal compensation of ₹ 1.
29/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 :::WP_5838_10 & ors.doc
36. In this context, it would also be relevant to refer to the observations made by the Supreme Court in the case of Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (supra). Although in the said case, a resolution of a municipal body was the subject matter of challenge and the Court found that there was no statutory basis for seeking transfer of open spaces to the municipal body free of cost, the nature of right available to the owner in the context of such open spaces, was considered. The following observation was made:
'6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law.' 30/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:27 ::: WP_5838_10 & ors.doc
37. Thus, we find that the land owner/society of plot holders in such layouts, continue to have rights in the land concerning open spaces and when the planning authority or the municipal body takes over such lands, the question of payment of compensation or deprivation of such rights, clearly arises for consideration. As noted hereinabove, in the case of K. T. Plantation Private Limited and another vs. State of Karnataka (supra), the constitution bench of the Supreme Court clearly held that just, fair and reasonable compensation has to be paid. This has to be appreciated in the backdrop of the position of law recognized by the Supreme Court in various cases, including in the case of Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others , (2013) 1 SCC 353, reiterated in the recent judgement of the Supreme Court in the case of Bernard Francis Joseph Vaz and others vs. Government of Karnataka and others (supra). In the said judgement, the Supreme Court held that the constitutional right to property under Article 300A, was indeed a 'human right' and also emphasized that under Article 226 of the Constitution of India, the High Courts ought to adopt a pro-active role, so as to ensure that the valuable right under Article 300A of the Constitution, is protected.
38. It is also significant to note that this Court, while dealing with an identical Rule, in the case of Vrajlal Jinabhai Patel and another vs. State of Maharashtra and others (supra), held that such a Rule violated Article 300A of the Constitution. It is significant to note that apart from the argument pertaining to violation of Article 300A of the Constitution, in the said case also, it was specifically argued that an identically worded bye-law referred to a statutory provision concerning new streets, with no reference to open spaces. In such a 31/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc factual backdrop and while analysing an identically worded bye-law, this Court held in favour of the petitioner therein. It would be appropriate to refer to the said bye-law and the relevant portion from the aforesaid judgement. Bye-law 14.3 of the Standardised Building Bye-laws and Development Control Rules, framed under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, reads as follows:
'14.3. Whenever called upon by the Planning Authority to do so, under provisions of section 183 of MM Act areas under roads and open space in Bye-law Nos. 14.1 and 14.2 shall be handed over to the Planning Authority after development of the same for which nominal amount (of ₹ 1) shall be paid by the Planning Authority. In case of the owners who undertake to develop the open spaces for bona fide reasons as recreational community open spaces, the Authority may permit the owner to develop the open space unless the Authority is convinced that there is misuse of development of open spaces in which case the Authority shall take over the land.'
39. In the context of the above-quoted bye-law, identically worded as the impugned Rule herein, this Court held as follows:
'7. Rule 14 appears to have been framed in furtherance of section 183 of the Act which relates to laying out or making of a new streets. It nowhere provides for the open spaces. Therefore, the power, if any, of acquiring the land under the streets is only contemplated under section 183. Acquisition of open spaces is not contemplated under section 183. Rule 14.3 which is a delegated legislation cannot, confer a power of acquisition of the open space under the layout. Under Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law. The authority of law means by or under any law made by a competent legislature. No law made by the legislature was shown to us under which the ownership in the open space could be vested or 32/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc transferred to the Municipal Council whether by payment of compensation of Re. 1/- or otherwise. In the circumstances, we reject the alternative contention of Shri Joshi that the open space under the layout would be vested in the Municipality on payment of compensation of Re. 1/-.'
40. The said position was followed in the subsequent judgement in the case of State of Maharashtra vs. Bhimashankar Sidramappa Chippa (supra) and also in the aforesaid recent judgement in the case of Vijay Anandrao Sawant and others vs. Baramati Nagar Parishad and others (supra). The said recent judgement considered an identically worded Regulation 19.3 of the Development Control Regulations, applicable to the respondent - municipal council therein. Thus, this Court has consistently held such action of taking over lands concerning open spaces by offering nominal compensation of Re.1 based on such bye-laws/Rules, as unsustainable.
41. We find substance in the contention raised on behalf of the petitioners that in these cases also, the said Rule is unsustainable as it violates Article 300A of the Constitution by offering illusory compensation of ₹ 1 and also because it refers to its source of power to two provisions in the parent statute that have nothing to do with open spaces.
42. At this stage, it would be relevant to quote Rule 13.3.1.5 of the DC Rules, which reads as follows:
'13.3.1.5 Whenever called upon by the Planning Authority to do so, under provisions of Section 202, 203 of BPMC Act areas under roads and open space in Bye-law Nos. 12.3 to 12.5, 13.3 shall be handed over to the Planning Authority after development of the same for which nominal amount (of ₹ 1) shall be paid bý the Planning Authority. In case of the owners who undertake to develop the open spaces 33/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc for bona fide reasons as recreational community open spaces, the Authority may permit the owner to develop the open space unless the Authority is convinced that there is misuse of open spaces in which case the Authority shall take over the land.'
43. A bare perusal of the above-quoted Rule shows that it specifically refers to Sections 202 and 203 of the BPMC Act. Thus, the source from the parent statute is found in the aforementioned two provisions. Sections 202 and 203 of the BPMC Act read as follows:
'202. Vesting of public streets in Corporation All streets within the City being, or which at any time become, public streets, except streets which on the appointed day vested in the [Government] or which after the said day may be constructed and maintained by an authority other than the Corporation, and the payments, stones and ether materials thereof shall vest in the Corporation and be under the control of the Commissioner.
203. Power of Commissioner in respect of public streets (1) The Commissioner shall from time to time cause all public streets vested in the Corporation to be levelled, metalled or paved, channelled, altered and repaired, as occasion shall require, and may also from time to time widen, extend or otherwise improve any such street or cause the soil thereof to be raised, lowered or altered and may place and keep in repair fences and posts for the safety of pedestrians :
Provided that no widening, extension or other improvement of a public street, the aggregate cost of which will exceed five thousand rupees or such higher amount the Corporation may from time to time fix, shall be undertaken by the Commissioner unless or until such undertaking has been authorised by the Corporation.
(2) With the sanction of the Corporation the Commissioner may permanently close the whole or any part of a public street vested in the Corporation:34/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 :::
WP_5838_10 & ors.doc Provided that such sanction of the Corporation shall not be given unless, one month at least before the meeting at which the matter is decided, a notice signed by the Commissioner has been put up in the street or part of a street which it is proposed to close, informing the residents of the said proposal, nor until the objections to the said proposal, if any, made in writing at any time before the day of the said meeting have been received and considered by the Corporation.'
44. A bare perusal of the above-quoted provisions of the BPMC Act, which are purported source for framing the said Rule, shows that the said provisions have nothing to do with open spaces in sanctioned layouts. As a matter of fact, the said provisions are in Chapter XIV of the BPMC Act, which specifically pertains to 'streets'. The chapter heading also refers to construction, maintenance and improvement of streets. There is absolutely no reference to common spaces. Thus, the said Rule is ultra vires the BPMC Act itself, particularly because it sources its power only in Sections 202 and 203 thereof.
45. It is also relevant to note that there is a separate chapter in the BPMC Act i.e. Chapter VIII, which specifically pertains to acquisition of property. It consists of three provisions i.e. Sections 76 to 78 pertaining to acquisition of property and further provisions 79 to 81 pertaining to disposal of property. The said impugned Rule makes no reference to the chapter pertaining to acquisition of property under the BPMC Act. Since we have already rejected the contention of the respondents that the impugned declarations amount to exercise of police powers for management and not to acquisition of property, the said Rule is found to be vulnerable on the aforesaid ground also that it is not sourced from appropriate provisions in the BPMC Act. If the 35/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc impugned Rule was to be sourced from the provisions of the BPMC Act pertaining to acquisition of immovable property, compensation would have to be paid in terms of the said Act, further indicating that the nominal compensation of ₹ 1 stipulated in the said Rule is illusory in nature and hence, hit by Article 300A of the Constitution.
46. We have already taken note of the position of law clarified by the Constitution Bench of the Supreme Court in the case of K. T. Plantation Private Limited and another vs. State of Karnataka (supra), to the effect that law depriving a person of his property, even under Article 300A of the Constitution, is not immune from challenge before a Constitutional Court for violation of Article 14 of the Constitution. We find that by applying the test to the impugned Rule, the same is found to be arbitrary and unsustainable, not only on the ground of offering illusory compensation of ₹ 1, but it also fails to sustain itself from a valid statutory source, due to reference to wholly irrelevant provisions of the BPMC Act.
47. A perusal of the contents of the said Rule shows that in the first part, it simply declares that after development, the areas under
open spaces shall be handed over to the planning authority for nominal amount of ₹ 1 and the second part leaves unbridled and arbitrary power in the planning authority to take over the land for 'misuse' of open spaces. There is no definition or indication in the DC Rules as to what could be said to be 'misuse' of open spaces. This further indicates violation of Article 14 of the Constitution of India, as non-arbitrariness is a fundamental requirement in such Rules purportedly framed in exercise of statutory power. Thus, the said Rule does not pass muster as 'law' under Article 300A of the Constitution. In other words, recourse to the said Rule, while issuing 36/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc the impugned declarations by respondent - PMC, renders its action of taking over the lands in the open spaces of the layouts, as being without authority of law. Hence, it is liable to be struck down.
48. The contention raised on behalf of the respondents that the open spaces do find mention in the said DC Rules and that they being the 'lungs' of the city, are required to be kept open and developed by the planning authority, is also found to be unsustainable. In this context, it would be relevant to refer to Rule 13.3.1.3 of the said DC Rules, which reads as follows:
'13.3.1.3 The structures to be permitted in the resedential open spaces shall be as per the following purposes:
(i) They shall be single storeyed structures with the maximum built up area not exceeding 10% of the open space. This shall be subject to maximum of 200 sq.metres. This facility shall be available for open spaces having an area 500 sq.metres and above only.
(ii) The structure shall be used for the purpose of pavilion or Gymnasia or other recreational activities which are related to open spaces; and
(iii) No detached toilet block shall be permitted.
Note: Every such plot and recreational open space shall have an independent means of access of 5 M. width minimum.'
49. A bare perusal of the above quoted Rule shows that construction of structures is actually permitted in such open spaces in layouts and that if there is any violation of the said Rule, the respondent - PMC would be entitled to exercise its general municipal powers to issue notices and take action, so as to ensure that such structures are within the constraints specified in the above-quoted Rule. This further indicates that the draconian power under the said 37/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc Rule for taking over the land of open spaces for 'misuse', with stipulation of payment of illusory compensation of ₹ 1, is wholly arbitrary and hence, unsustainable.
50. The judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra) has been the sheet anchor of the contentions raised on behalf of the respondents. According to them, the said judgement is an answer to all the arguments raised on behalf of the petitioners in the context of Article 300A of the Constitution. We have carefully perused the said judgement. But, we find that the aforesaid judgement is distinguishable on facts. The subject matter of consideration in the said case was a Development Control Rule specifically stipulating that 10% of area excluding roads, would be reserved and such area would be transferred to the authority or local body free of cost, through a deed. In that light, a gift deed was executed by the developer, obviously without any consideration, for handing over such 10% area to the planning authority. We find that the aforesaid Rule was framed with reference to the specific statutory provisions in the parent statute, concerning acquisition of land in context of development plan, master plan and town planning scheme framed by the planning authority. Specific reservations were contemplated and stipulated in such statutory exercise of power by the planning authority and in that context, the subject development control rule was framed.
51. The said judgement of the Supreme Court makes an elaborate reference to the scheme of Development Control Rules having statutory flavour and how a group development of flats was contemplated, which stipulated the extent of area required to be 38/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc reserved for open spaces, depending upon the extent of layout in which such group development or special buildings were permitted. It is in the context of such a statutory scheme and on the facts peculiar of the said case, that the Supreme Court upheld the validity of the subject development control rule.
52. As a matter of fact, the said judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra) specifically referred to the aforementioned judgements in the cases of Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (supra), Yogendra Pal and others vs. Municipality, Bhatinda and another (supra) and Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others (supra), while distinguishing them on facts to hold that the development control rule under consideration, qualified as law that did not fail the test of Article 14, consequently holding that Article 300A of the Constitution was not violated.
53. As a matter of fact, after distinguishing the aforementioned earlier judgements of the Supreme Court on facts, it was held that the impugned Development Control Rule therein neither violated Article 300A of the Constitution, nor was it ultra vires the parent Act.
54. We are of the opinion that the facts of the instant cases and the impugned Rule under challenge, are clearly distinguishable from those with which the Supreme Court was concerned in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra). In the present case, as noted hereinabove, the said Rule refers to the statutory provisions of the parent Act i.e. Sections 202 and 203 of the BPMC Act, that have nothing to do with open 39/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc spaces. The said Rule makes no reference to the power under the BPMC Act for acquisition of property and yet, it stipulates taking over of the open spaces and the property concerned therewith on payment of illusory compensation of ₹ 1. Therefore, the respondents are not justified in relying upon the aforesaid judgement of the Supreme Court in the case of Association of Vasanth Apartments' Owners vs. V. Gopinath and others (supra).
55. Apart from this, we find that in all these petitions, the layouts were sanctioned well before the said DC Rules came into force on 05.02.1987. This is also a factor in favour of the petitioners. We also find substance in the contention of the petitioners that under the garb of 'public good', the respondent - PMC intended to virtually walk into the common spaces in the layouts on the purported ground of 'misuse'. There is substance in the contention raised on behalf of the petitioners that the plot holders of the society and the land owners have a right to use the common spaces within the framework provided even by the Development Control Rules and that respondent - PMC cannot be allowed walk into the same and also it cannot claim that it is entitled to take over the open spaces on payment of illusory compensation of ₹ 1 and then make the open spaces available for use by general public. On this ground also, we find substance in the contentions raised on behalf of the petitioners.
56. The respondent - State has claimed that the impugned action under the said Rule is neither acquisition nor deprivation of property and that it is a condition voluntarily accepted in exchange for development rights and hence, the token compensation of ₹ 1 is justified. The said argument is stated only to be rejected. The condition of keeping open spaces has been abided by the land 40/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 ::: WP_5838_10 & ors.doc owners/society of plot holders and the impugned declarations published in newspapers relying upon the said Rule, amount to taking over and acquisition of lands pertaining to the open spaces. The compensation of ₹ 1 is found to be illusory and there is no scope for any 'token' compensation, so long as the open spaces are utilized in terms of the DC Rules. Even if there is any misuse or construction of structures in the open spaces violating the Rules, the respondent - PMC could take appropriate action for bringing the same in line with the Rules. But, taking over of the property by offering such illusory compensation, is wholly unsustainable.
57. In view of the above, the writ petitions are allowed. The impugned Rule 13.3.1.5 of the DC Rules is held unconstitutional, as it violates Article 300A of the Constitution and hence, it is struck down. It is also found to be ultra vires of the BPMC Act, now MMC Act. Consequently, the impugned declarations published in newspapers by respondent - PMC are quashed and set aside. We further direct that all consequential actions taken by the respondent
- PMC and others, in pursuance of the impugned declarations, shall stand rectified to restore the status, as existed prior to issuance of the impugned declarations. It is held that the petitioners are entitled to use the open spaces in accordance with law.
58. Pending civil application also stands disposed of.
59. Rule is made absolute in above terms.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.) Priya Kambli 41/41 ::: Uploaded on - 06/05/2026 ::: Downloaded on - 08/05/2026 01:00:28 :::