Anand Vasant Nirgude, J. - (1.) AS common issue is involved, these petitions are disposed of by this common Judgment. For convenience, the facts of writ petition No. 5044 of 1999 are taken into consideration.
(2.) THE facts leading to these Writ Petitions, in short, can be summarized as under: - Prior to 1981, Aurangabad town was governed by a Municipal Council established under the provisions of the Maharashtra Municipalities Act, 1965 which was 'A' class Municipal Council. It had certain Development Control Rules which inter alia provided that in case a land having area of more than 0.4 hectare is proposed to be developed through a layout, 10% of the total area should be reserved as open space for recreation. Accordingly, till 1982, said layouts with such compulsory open space for recreation were sanctioned. On 3rd December, 1982, significant change took place in respect of Municipal Council of Aurangabad. In exercise of power provided by Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 (herein after referred to as "BPMC Act" for the sake of brevity), the Government of Maharashtra after previous publication as required by the law, constituted and established Aurangabad Municipal Corporation. The Government of Maharashtra also prescribed boundaries of said Corporation. Earlier the boundaries of Municipal Council of Aurangabad thus changed and a larger area became Corporation area. The Government of Maharashtra further declared that, on 8th December, 1982, provisions of the BPMC Act would come into operation in the city of Aurangabad and on the same day, the State of Maharashtra appointed Shri. Tripathi as the Administrator of the Municipal Corporation, for a period of one year etc. On the same day, the Government of Maharashtra also directed through a notification which is as follows: BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT, 1949. No. AMC, 1082/207 (IV) -UD.2]. -Whereas, by Government Notification, Urban Development Department No. AMC. 1082/207 (i) -UD 21, dated the 3rd December 1982, issued under sub -section (2) of section 3 of the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949) (hereinafter referred to as "the said Act"), the local areas which were previously comprised in the whole of the municipal area of the Aurangabad Municipal Council and also in a part of the area of the Aurangabad Zilla Parishad have been constituted to be the City of Aurangabad for the purposes of the said Act, with effect from the 8th day of December 1982 (hereinafter referred to as "the appointed day"); And Whereas, it is expedient to direct that all or any of the appointments, notifications, notices, taxes, orders, schemes, licenses, Permissions, rules, by -laws or forms made, issued, imposed or granted in any area of a specified Municipal Council included in the City as aforesaid, under the Maharashtra Municipalities Act, 1965, or any other law and in force in that area immediately before the appointed day, shall continue to be in force throughout the area of the said City, for the sake of having uniformity in all the area merging in the said City; Now, therefore, in pursuance of the provisions of paragraph 5A in Part]' of Appendix IV to the said Act, and of all other powers enabling it in this behalf, the Government of Maharashtra hereby directs that, save as otherwise provided in Section 129A or any other provisions of the said Act, all the appointments, notifications, notices, taxes, orders, schemes, licences, permissions, rules, by -laws or forms made, issued, imposed or granted in the Municipal area of the Aurangabad Municipal Council, under the Maharashtra Municipalities Act, 1965, or any other law and in force in that area immediately before the appointed day, shall in so far as they are not inconsistent with the provisions of the said Act, continue to be in force throughout the area of the said City, until they are superseded or modified under the said Act or under any other law as aforesaid, as the case may be. Within few days thereafter, on 25th December, 1982, the State of Maharashtra directed to the Municipal Corporation, Aurangabad, vide a letter dated 21st December, 1982, to adopt Standardized Building By -laws and Development Control Rules and copy of which enclosed with the letter. They further directed the Corporation that the corporation should submit a proposal for modification of by -laws and development control rules, if any, by following procedure under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (in short "MRTP Act"). It is a fact that, the Corporation thereafter started implementing the Standardized Building By -laws and Development Control Rules for permissions given for development. The Standardized Building By -laws and Development Control Rules provided that if a layout is proposed of a land ad measuring more than 0.4 hectare, 15% of such land should be reserved as open space for recreation. A significant change thus came into force from December 1982. It is a fact that, layouts of land ad measuring more than 0.4 hectare which were submitted for sanction after December, 1982, were sanctioned with 15% of the plot as open space for recreation. It is also an admitted fact that, some of the land owners were protected on the ground that, previously the Municipal Council was permitting layouts with 10% of the land as open space for recreation, nonetheless the Corporation compelled all such owners of land to keep 15% of the land as open space for recreation. It is also fact that, from December, 1982 till 1992, this practice prevailed. Hundreds of layouts were sanctioned with the above mentioned condition. In June, 1983, the Administrator issued a notice thereby calling objections to the proposed building by -laws and development control rules. The proposal for change in development control rules was submitted to the Government in February, 1986 and on 17th February, 1992, the Government sanctioned the amended building by -laws and the development control rules. But, this time they specifically mentioned that the proposal to change the previous 10% for open space for recreation would not be changed to 15%. In the meantime, some significant changes took place in respect of open spaces for recreation left out in various layouts all over the State as per the development control rules that were applicable to most of the towns in Maharashtra including Aurangabad. As per the development control rules, after layout is sanctioned, the portions of land which are left out for road would vest in the Corporation or Council as the case may be for being developed as roads and for being provided amenities as street lights, storm water drain etc. The open spaces reserved for recreation were also transferred to Corporation / Council for proper utilization and management. An impression was created then that, the open spaces for recreation thus were vested in Council / Corporation. After the Council / Corporation believed that such open spaces stood vested in them, they started transferring 10% of such open spaces to certain public trusts with a condition that they would develop that part of the open space for public purpose. But, the Government noticed that number of public trusts to whom such lands were handed over, misused this facility. Therefore, on 10th June, 1996, the government issued a circular under Section 154 of MRTP Act, that, thenceforth, part of open spaces reserved for recreation should be given for development only to the original owner of the layout or to the Cooperative Housing Society formed by the Plot Holders or to the Federation of Cooperative Societies. The Government of Maharashtra also directed that, whenever open spaces are transferred to Council / Corporation, they would be entitled to transfer 10% of such land to the above mentioned three parties. This Circular thus stopped Councils / Corporations from giving away part of open spaces for recreation to third parties. As said above, in 1992, the Government sanctioned revised building by -laws and development control rules where 10% of a piece of land subjected to layout would be reserved as open space for recreation. Earlier in Municipal Corporations of Aurangabad, several layouts were approved in which the owners of the lands were asked to keep 15% of the land as open space for recreation. In view of this change, number of owners of layout land demanded to the Corporation that their layout should be suitably changed for providing only 10% of the land as open space for recreation. In other words, they wanted a revised layout in which they would be permitted to sale 5% land for development purpose. Due to their demand, the Corporation took a policy decision and to give retrospective effect to building bye -laws from 1992 and development control rules from 1982. The Corporation, thereafter, passed a resolution in a General Body Meeting of 19th December, 1998, that revision in layouts would be permitted on certain conditions. One of the significant conditions was that the owner of layout land should deposit with them certain amount for getting permission to develop 5% land of the layout for development. The petitioners in Writ Petition No. 5044 of 1999, took a strong objection to such a resolution. On 19th June, 1999, they sent legal notice to the Corporation and the State of Maharashtra raising objection to the resolution urging them to cancel the resolution and to keep the previous layouts intact so that open spaces left out earlier would be protected as open spaces, but the Corporation not only did not pay any heed to the request, but also started entertaining applications for revision of layouts. They permitted revision in 17 layouts and released some portion of open spaces for development. Accordingly, some layout owners sold in open market some plots of land. Some of them in turn started development of the plots by getting building permission sanctioned. Some of them started raising constructions on their plots. In the meantime, Writ Petition No. 5044 of 1999 was filed on 1st August, 1999 and within few days thereafter, this Court directed the parties not to continue development on such plots. On 15th February, 2000, this Court granted interim relief as under: - "Pending hearing and disposal of this Writ petition, the execution and operation of resolution dated 19th December, 1998 is stayed and the Corporation was restrained on acting on the impugned resolution." In view of this order, further development on the plots referred to above was stopped and we hope that the concerned parties have not violated the order of this Court.
(3.) MUNICIPAL Corporation submitted reply to the petition and opposed the petition filed by the petitioners justifying their action and the impugned resolution.;