A division bench of Justice SC Dharmadhikari and Justice GS Patel(Bombay High Court) held that individual interests must be subjugated to the more sizably voluminous group interests. The court observed so, while dealing with a writ petition with regard to conditions laid down in a notification issued by the Ministry of Urban Development. The notification was issued to announce the decision to include some lands which have earlier been in the agricultural zone, into the residential zone.
Dilipsingh Borawake, a 65 year old businessman from Pune, filed a petition opposing a certain condition listed in the notification. He owns agricultural land, which after the issuance of the said notification was converted into residential zone, in Ghorpadi.
The petitioner was opposing the condition 3 in the notification which stated that if anyone wished to develop more than 2 hectares of land coming under the notification, they will have to surrender 10% of the land as amenity space to the Pune Municipality Corporation. The Pune Municipal Corporation was not entitled to pay compensation in cash for the above said surrender of amenity space. However, the person owning the land could claim Floor Space Index benefits. Floor space index, is the ratio of the plot size on which the construction happens and the total permissible coverage area.
The petition was filed 12 years after the notification was issued on June 27, 2000. The petitioner, meanwhile, had got his plan sanctioned on 26 march, 2007, and availed the FSI benefits. A layout was created for the purpose of developing the plot. The land was divided into 10 parts in the layout and the plot numbered No.10 was kept aside as the 10% to be surrendered as amenity space as mentioned in the orders laid down in the said notification.
The petitioner claims that he had surrendered portions of land for gardens and also the land for Development Plan road to the Pune Municipal Corporation and that he obtained a possession receipt for the same. The petitioner wanted to develop the rest 90% of the land and had submitted a proposal for the same. This proposal was rejected by the PMC on account that the said land in plot No.10 was to be reserved for amenity space as mentioned in the notification.
The petitioner argued that it was not appropriate to designate plot no.10 for amenity space or for public purpose. He also stated that he could consume the FSI benefit only on the said plot and if the plot is designated for any other public purpose, the FSI claim would go unconsumed.
The court dismissed the petition and said that the petitioner was in fact contradicting his own initial agreement to the notification. He himself had provided 10% of the plot no.10 for amenity space in the layout submitted to the PMC for approval.
The court held:
“Development plans are intended to sub serve a wider public interest. It is not possible to argue that in our cities there is ever any such thing as ‘sufficient’ open space or ‘sufficient’ amenity space.”
“We do not accept the argument that because some land has been surrendered towards gardens or public roads, therefore the purposes of the development plan and objective of planned and orderly development is fulfilled.”
“We are entirely of the view that the 10% provision for amenity space is not only salutary but it is necessary for the balanced development of the city. It cannot be compromised.”
Courtesy/By: Gopalakrishnan.R.R
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17 Jul 2019
