The Supreme Court held that Government's condition whereby landowners are obligated to provide a portion of their land at no charge for public utility purposes in exchange for permission to change the land's designated use, is not considered illegal. 

The Court in the said matter has set aside the orders of the Bombay High Court restricting the use of ‘amenity space’ which was allotted to the Shirdi Nagar Panchayat (Municipal Council) in return of the permission granted for converting a land which was reserved for a ‘non-residential’ for ‘residential’ purpose.

Nevertheless, following a plea that the land in question contains trees that are over 100 old, the court has granted landowners the opportunity to submit a request to the Council for the allocation of alternative land.

The bench comprising, Justices B.R. Gavai and S.V.N. Bhatti held that the '‘Amenity space’ was agreed to be allotted to the Municipal Council on the basis of the conditions imposed by the State of Maharashtra while converting the land from a ‘No Development Zone’ to ‘Residential Zone’, as per Government Notification dated 18th August 2004.''

The landowners, had not only accepted the said condition but acting on the same, they had entered into agreements with the Municipal Council transferring the ‘amenity space’ in favour of the latter.

Consequently, the court quashes the orders of Bombay High Court which earlier constrained the Municipal Council from altering the purpose of the land reserved for 'amenity space,' with the exception of its use for the benefit of residential plot holders.

“We find the said request to be reasonable. We, therefore, permit the landowners/plot holders to make a representation to the Municipal Council for providing/transferring another piece of land on the same road having the same or near about the same area. On such an application being made, the Municipal Council would consider the same in accordance with law,” the court said, adding that it was passing the said directions under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older.

“It has been consistently held by this court in a catena of judgments that if a party has more than one remedy and if he chooses one of them, he is estopped from taking recourse to the other remedy,” said the court. The writ petition filed by the landowners was also liable to be dismissed invoking the principle of approbate and reprobate, the court added.

The bench, however, allowed the alternative plea of the landowners/plot holders that, since the land reserved for ‘amenity space’ consisted of trees aged about 100 years or more, they be permitted to retain the ‘amnesty space’, in lieu of transferring another piece of land.

Case Title - SHIRDI NAGAR PANCHAYAT vs KISHOR SHARAD BORAWAKE AND OTHERS

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