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26 WP-2486-18 & 3805-18 J

24. Clause 13.3.2 clearly lays down that the open space shall be used for the purpose of common use of all the residents or occupants of the layout/building unit. Sub clause (b) of clause 13.3.2 authorizes the authority to take over the land of recreational open space if convinced that there is misuse of the same. The possession/custody shall remain with the Chief Officer until society is formed. The recreational open space shall not be sold to any other person and it shall not be put to any other user except for the common use of residents/occupants. Clause 13.3.8 Sub-Rule (1) (2) and (4) provide for the purpose of construction of pavilion, gymnasia or club house or vipashyana and yoga centre or crèche or kindergarten or library or water tank, health centre and construction of swimming pool thereon, but the same can be done if the owner or owners society of the plots make a proposal to that effect. It is obvious that when the open space is to be used exclusively for the common use of plot holders, Shirdi Nagar Panchayat cannot construct structures or swimming pool on the same for the common use of the general public.

31. Even the plot holders have no right to use open space and amenity space for any purpose other than as provided in the Regulations referred herein above. If there is misuse of open space, clause 13.3.2(b) authorizes the authority to take over the land or recreational open space. Such taking over shall be always from the management for the purpose of common enjoyment of the plot 31 WP-2486-18 & 3805-18 J holders. It cannot be vesting of title of ownership of the plot in the local authority.

37. The purposes for which the amenity space can be used indicate that the same can be used for plot holders as well as for common public. In the circumstances, the amenity space shall belong to the original owner.

38. However, it is clear that the amenity space cannot be used for any purpose except for the purpose earmarked or for the purposes under Rule 2.9. Neither the original owner nor the plot holders, nor the municipality can change the user of the amenity space. If the amenity space is taken in possession by the Municipal Council under agreement and by way of possession receipt, the possession of Municipal Council will be only as and by way of trust and it shall be for the management of the premises. The Municipal Council cannot become owner of the premises. If the amenity space is going to be used for the purpose of plot holders, then the Municipal Council is not required to acquire it, but if It is to be used for common public, it must be acquired and then only it can be developed for use of common public. The plan of Municipal Council to construct swimming pool, indoor game hall, multi purpose hall for the residents as well as for the Sai devotees cannot be carried further without acquisition of the amenity space. As far as swimming pool or gymnasia or other structures, permissible under clause 34 WP-2486-18 & 3805-18 J 13.3(a) are concerned, those can be carried out in open space if the plot holders consent for the same, but those shall be for the exclusive use of the plot holders.