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1. This judgment shall also govern the disposal of Writ Petition No. 849 of 2001 (Shriram Colony Mohalla Sudhar Samiti v. State of Madhya Pradesh and Ors.).

2. This appeal is filed by the Municipal Corporation against the order of Single Judge. The brief facts of the case are as under:--

Respondent Nos. 1 to 3 have filed a writ petition before the Single Bench, challenging the inaction of appellants in not deciding the revised layout plan and granting permission for construction. Respondents/petitioners contended that their grand-father Late Shri Ramawtar Sharma was the owner of lands; out of which he carved out number of plots and developed a colony, which is known as "Shriram Colony". Said Ramawtar Sharma bequeathed the ownership of the lands owned by him in the said colony to the respondents/petitioners. It is further contended that on 17th March, 1989 Department of Town & Country Planning, Gwalior allotted plot Nos. 71, 72, 73 and 74 in the name of petitioners. The name of petitioners was mutated in the records of Municipal Corporation, Gwalior. Petitioners wanted to surround the said plot Nos. 71 to 74 by erecting a boundary wall only through the length and width of the plots at the corner end. An application was submitted with the Officer of Ward No. 11 on 20th March, 1990 for seeking permission for construction of the boundary wall. The said application was acknowledged by Ward Officer on 20th March, 1990 itself and was entered in the Inward Register at serial No. 1074. No sanction for construction was received from the respondent No. 1-Municipal Corporation, Gwalior or Ward Officer in pursuance of the application dated 20th March, 1990. Petitioner then served a notice to the Commissioner, Municipal Corporation, Gwalior and copy of the notice was sent to the Ward Officer regarding intention of the petitioners. It is further contended by Counsel for the petitioners that since there was a deemed permission as contemplated in Section 295(3) of the Municipal Corporation Act, petitioners after notice proceeded with erection of the boundary wall. The boundary wall was constructed on 27th April, 1990. It is contended that as soon as erection of boundary wall was completed, objection was raised by the residents of colony and some complaints were made to the various Authorities, challenging the act of petitioners. On 19th June, 1990 members of the Municipal Corporation along with aid of local police reached the aforesaid plots and demolished the boundary wall. Authority of Municipal Corporation has also carried away the material with them. Petitioners contended that this act is contrary to law, arbitrary and petitioners have been put to financial loss of Rs. 70.000/-. Petitioners are entitled for costs of Rs. 50,000/-towards the material which were carried away by the Officers of the Municipal Corporation. After demolishing the wall, petitioner No. 1 contacted the Collector, Gwalior, Administrator and Commissioner of the Municipal Corporation, Gwalior and showed them the documents which he possessed. Thereafter, vide Annexure P-7 detailed communication was sent to the Corporation. On account of this action petitioners filed a Writ Petition No. 954 of 1990. While the petition was pending, petitioners submitted an application along with plans to Joint Director, Town & Country Planning, for revision of layout plan. The said Authority vide letter dated 23rd January, 1991 accepted the layout plan and intimated the same to the petitioners as well as to the respondents. After sanction of the revised layout plan, petitioners submitted the same to the Commissioner, Municipal Corporation. Municipal Corporation informed the petitioners that since petition is pending before the High Court, therefore, revised layout plan cannot be considered. Petitioners have now challenged the action of respondent No. 1 in not considering the layout plan as erroneous and refusal to exercise jurisdiction vested in it. Earlier petition was disposed of on 24th November, 1992 and respondents in that petition were directed to consider the matter afresh on facts, rights and entitlement of petitioners and pass appropriate order on the revised layout plan. After dismissal of the petition, petitioner along with copy of the order, submitted an application before the Municipal Corporation on 16th December, 1992 and requested to pass appropriate orders in view of the revised layout plan. Even then Municipal Corporation has not passed any order, therefore, petition was filed.

Petition was opposed by respondents. However, respondents also mentioned the fact before the Single Bench that a civil suit between the petitioners and other party is pending in the Civil Court, where temporary injunction is granted restraining petitioners in the writ petition from carrying out any construction and they were directed to maintain status quo.

Learned Single Judge has held that in his opinion the order passed by the Civil Court would not stand in the way of petitioners. The order which has been passed on an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, is to the effect that no construction is to be raised on the park in question. He further held that the park in this case would be the park which has not come into existence on account of revised layout plan having been sanctioned. On the submission of the petitioners that they would not raise any construction on the park as per the revised layout plan, the Court directed that the application can be disposed of in terms of the provisions of Municipal Corporation Act and petitioners would be at liberty to take resort to the deeming provision also in case application is not processed in terms of Section 295 of the Act. Petition was allowed. It was further directed that in the event of any building application being submitted, the Corporation shall process the same in accordance with law and shall not reject the application merely on the ground that earlier a different layout plan was sanctioned. Thus, learned Single Judge has virtually accepted the revised layout plan.

10. Respondents in their reply supported the order of Single Bench and submitted that since their title has been upheld and the land which was not being used as park, has rightly been held to be owned by the petitioners/respondents and Single Bench was justified in holding that according to revised layout plan, petitioners shall not carry out any construction on the land earmarked for park in the revised plan. Respondents referred to the judgment in the case of A Chet Ram Vashist (dead) by L.Rs. v. Municipal Corporation of Delhi, reported in AIR 1995 SC 430, and submitted that the condition in the layout plan that area specified for park and school shall vest with the Corporation is illegal. The judgment was delivered while considering the scope of Section 313 of Delhi Municipal Corporation Act.

20. As regards inordinate delay is concerned, it was for the coloniser to point out that the authority allowed revision of layout plan after affording opportunity of hearing to the residents of the colony; therefore, as and when they learnt about revised layout plan and construction was started on the open space, some of them have filed civil suit and then writ petitions have been filed.

21. In view of the judgment in the case of V.K. Bansal (supra) and other judgments of the Apex Court, nature of land which is earmarked for public amenity cannot be changed. As far as open space is concerned, which, according to the coloniser, was not left as open space for public amenity, should be held to be in the ownership of coloniser. This question is a disputed question of fact and in our opinion, this question shall be examined by the Municipal Corporation and Director, Town & Country Planning jointly after examining the original layout plan and considering whether permission to convert the open land into plots can he granted. It may be mentioned that any mutation in municipal record is not a mutation of title, as such, no right is conferred upon coloniser to claim himself to be the owner of the plots. It may be mentioned that if some application is filed by coloniser for converting open space other than the land earmarked for park or septic tank, the application shall be considered jointly by the Director, Town & Country Planning and Municipal Corporation after inviting objections from the local residents. While examining the left out open space, both the authorities shall consider the intention of original layout plan and shall record reasons for allowing carving out of plots or refusing carving out of plots upon open space.