Mahendra Shankarrao Gadve And Ors vs Municipal Corporation Of City Of Pune … on 6 May, 2026

May 8, 2026

Bombay High Court

Mahendra Shankarrao Gadve And Ors vs Municipal Corporation Of City Of Pune … on 6 May, 2026

. These petitions challenge the constitutional validity of Rule
13.3.1.5 of the Development Control Rules (the said Rule) for the
city of Pune. The petitioners claim that the said Rule violates Article
300A of the Constitution of India and they also claim that the said
Rule could not have been framed with reference to Sections 202 and
203 of the then Bombay Provincial Municipal Corporations Act, 1949
(BPMC Act) [now the Maharashtra Municipal Corporations Act, 1949
(MMC Act)], as the said sections pertain to vesting of public streets
in the Corporation, with no reference to open spaces in private
sanctioned layouts. The petitioners also contend that the said Rule
gives unbridled power to the respondent – Pune Municipal
Corporation (PMC) to enter upon and take over the open spaces in
such private layouts, without any reference to acquisition and upon
payment of illusory compensation of ₹ 1 only.

SPONSORED

2. All these petitions were filed when the respondent – PMC
caused public notices to be issued in newspapers, declaring that it
was taking over open spaces in layouts concerning the petitioners.
The petitioners claim that this was wholly arbitrary and in exercise of
power under the said Rule, which itself is constitutionally invalid.
The respondent – PMC and respondent – State have opposed the
contentions raised on behalf of the petitioners. In all these petitions,
Rule was granted with interim relief in favour of the petitioners,
during the pendency of these petitions.

3. It would be necessary to briefly refer to the chronology of
events in each of the petitions, leading to challenge raised in these

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petitions. Since Writ Petition No.5838 of 2010 was argued as the lead
petition, this Court is first referring to the facts pertaining to the said
petition.

4. In Writ Petition No.5838 of 2010, the petitioner is Pune Ex-
servicemen Co-operative Housing Society Ltd., which is aggrieved by
a public declaration dated 11.02.2010 published in Daily Sakal,
whereby it was stated that since the open spaces in the layout of the
petitioner – society were being misused, the PMC was taking
possession of the open spaces, as per the said Rule. The said society
was registered on 24.05.1948 and by an order dated 20.05.1957, the
Collector of Pune allotted the land to the society in Survey No.48/1,
Erandwane, Pune. The society consists of members (plot holders),
who have constructed their individual structures on the plots. The
revised layout of the society was sanctioned by PMC on 10.05.1994,
which specified five open spaces. This constituted 10% of the total
area of the plot of land of the petitioner – society.

5. According to the society, one of such open spaces numbered as
‘C’, was in danger of being misused, as residents of slum abutting the
land of the petitioner – society, were making attempts to encroach
upon the open space. It was found that cattle and other animals from
the abutting area were entering into the said open space. In that
backdrop, the petitioner – society intended to engage an agency to
develop the plot as garden, which would be used for recreation
activities. One individual came forward, but he could not develop the
plot and in that light, the petitioner – society engaged an entity
called Surabhi Nursery, which developed the open space as a jogging
park with sitting arrangement for members. At the time of filing of
the petition, the petitioner – society claimed that its members were

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using the said facility. It appears that a complaint was submitted to
the respondent – PMC that the open space was not being used
properly and in that backdrop, on 11.02.2010, the aforementioned
declaration was published by the said respondent in Daily Sakal,
stating that possession of the open space was being taken on nominal
compensation of ₹ 1, as per the said Rule.

6. It is in this backdrop that the petitioner – society filed the
aforesaid petition, raising various grounds, including the ground of
violation of Article 300A of the Constitution of India, challenging the
constitutional validity of the said Rule. On 30.07.2010, this Court
granted Rule in the petition and directed the parties to maintain
status quo.

7. In Writ Petition No.1991 of 2025, the petitioners are aggrieved
by a declaration published by the respondent – PMC on 11.10.2004,
stating that it intended to take possession of the open spaces in the
layout in Walvekar Nagar, by exercising power under the said Rule,
on the ground that such open spaces were being misused. It was
further stated that if any person had any objection, the same be
raised within one month. The petitioners in the said petition are
members of Walvekar family, who are owners of open spaces in
sanctioned layout. The said petitioners specifically stated that in the
year 1971, the aforesaid layout was approved by PMC in respect of
lands at Survey Nos.50, 52 and 53 in Pune. Open spaces were
earmarked in the said approved/sanctioned layout. Thereafter, on
05.01.1987, the aforesaid DC Rules were sanctioned along with
development plan and they came into effect from 05.02.1987. The
petitioners stated that since the layout was sanctioned prior to the
DC Rules coming into force, they obviously would not apply to the
said layout.

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8. It is stated that upon the said declaration being published in
newspaper on 11.10.2004 by respondent – PMC, the petitioners sent
a notice to the said respondents on 03.03.2005. However, the
petitioners were shocked and surprised to read a report in Indian
Express newspaper dated 04.03.2005 that the PMC had purportedly
taken possession of the said open space in the aforementioned
layout. When the petitioners visited the open space, they found a
local politician and an influential corporator, personally taking efforts
with the officers of respondent – PMC to take possession of the open
space. In that light, the petitioners rushed to file the aforementioned
petition.

9. In the said petition, numerous grounds have been raised,
challenging the aforesaid action of respondent – PMC. The
constitutional validity of the said Rule was also challenged. On
02.05.2005, this Court granted status quo in the matter.
Subsequently, on 26.10.2005, this Court granted Rule. It was further
observed that in view of the statement made in the affidavit-in-reply
that possession of open space was taken, interim relief was refused
and hearing was expedited. Intervention application bearing Civil
Application No.2396 of 2008 was filed in the said petition, which has
remained pending.

10. In Writ Petition No.2119 of 2005, the petitioners have
challenged similar declaration issued by respondent – PMC in a
newspaper on 07.02.2005, stating that the open space in sanctioned
layout of land bearing Survey No. 46/1B + 2/B at Parvati, Pune was
intended to be taken, purportedly for developing a garden. It was
stated that if any person had any objection, the same be raised within

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a month of publication of the said declaration/notice. The petitioners
have referred to the framing of DC Rules brought into effect from
05.02.1987. It was specifically stated that the petitioners, on
03.10.2003, had applied to respondent – PMC for creating recreation
centre and club house in the open land. The Assistant Engineer of
PMC called upon the architect to comply with certain requirements.
Thereafter, certain objections were raised with regard to the proposal
submitted by the architect.

11. On 23.10.2004, the architect submitted an application before
respondent – PMC with consent letter of the plot holders of the
layout. The fresh application was under consideration when
suddenly, at this stage, on 07.02.2005, respondent – PMC published
the aforesaid declaration in the newspaper. It is further stated that
since the petitioners believed that deemed permission had been
granted, a barbed wire fencing was erected around the open space,
in order to secure the plot. They filed Regular Civil Suit No.373 of
2005 to challenge a notice dated 03.03.2005 issued by respondent –
PMC against the petitioners for having erected the said fence. An ad-
interim injunction was granted against the said respondent from
removing the barbed wire fencing. The petitioners also filed Regular
Civil Suit No.374 of 2005, seeking declaration and injunction in
respect of advertisement published by respondent – PMC.

12. But since the petitioners contended that the very source of
power exercised by respondent – PMC i.e. the said Rule was
unconstitutional, they were constrained to file the aforesaid writ
petition. They have raised detailed grounds to challenge the
constitutional validity of the said Rule and also against the arbitrary
action undertaken by respondent – PMC. In the said writ petition, on

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02.05.2005, interim order of status quo was granted. On 27.09.2005,
Rule was granted and interim order was continued.

13. In Writ Petition No. 4433 of 2006, the petitioner is aggrieved
by a declaration published by respondent – PMC on 09.06.2006,
stating that possession of open space would be taken from the
sanctioned layout in land bearing Survey Nos.148, 150 and 151 of
Aundh, Pune, on the ground that the open space was being misused.
It was stated that nominal compensation of ₹ 1 shall be given for
taking over the open space. The petitioner in the said petition stated
that the aforementioned layout was sanctioned on 27.11.1973 and
thereafter, the aforesaid DC Rules came into operation from
05.02.1987. It was stated that the petitioner and others had planted
trees in the open space and yet, the aforesaid impugned action was
sought to be taken by respondent – PMC.

14. The petitioner has referred to exchange of communications
with the said respondent on the allegation of misuse of open space
and in this petition also, similar grounds regarding
unconstitutionality of the said Rule along with other contentions,
have been raised. In this petition, Rule was granted on 31.08.2006
and interim relief was granted in terms of prayer clauses (c) and (d),
thereby restraining the respondents, including PMC, from carrying
out any development work on the open space and also, preventing
the petitioners from proceeding with development of the same.

15. In Writ Petition No. 8720 of 2010, the petitioners are
aggrieved by declaration issued on 01.10.2009, similarly threatening
taking over possession of open space in the sanctioned layout in land
bearing Survey Nos.89/2, 90/2 and 91/2 of Pune. The layout was
sanctioned on 24.12.1954, much prior to the aforesaid DC Rules

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coming into operation from 05.02.1987. In this petition, it was
specifically stated that there were certain complaints received by
respondent – PMC about the alleged misuse of the open space in the
layout. In that context, internal reports indicated that there was
dispute whether the open space was being misused or not. In any
case, in November/December 2007, the Deputy City Engineer of PMC
opined that it would be appropriate that the said spaces are acquired
as per the provisions of the Land Acquisition Act, 1894. Accordingly,
a letter dated 31.12.2008 was addressed by the City Engineer for
acquisition. It was stated that in this backdrop, the local corporator
was insisting on taking recourse to the said Rule.

16. On 01.01.2009, the City Engineer submitted a report to the
Commissioner of PMC that acquisition proceeding was being
undertaken for open space in the said layout. On 09.07.2009, the
Special Land Acquisition Officer addressed a letter to the Special
Officer (Planning and Acquisition) and Deputy Engineer,
(Development Control Department), stating that acquisition of open
space in the layout of petitioners, was under progress as per order of
the Collector dated 12.10.2001. Joint measurement maps were
forwarded and while the aforesaid process of acquisition appeared to
be very much in progress, suddenly the aforementioned declaration
was published in October 2009 in a local newspaper, stating that the
open space in the said layout was to be taken over by respondent –
PMC for nominal compensation of ₹ 1, under the said Rule.
According to the petitioners, this was a wholly arbitrary act
undertaken by the said respondent on the basis of the said
unconstitutional Rule. Upon the petitioners filing the present
petition, on 24.08.2011, this Court granted order of status quo. On
09.11.2011, Rule was granted in the said petition also.

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17. All the five petitions were tagged together for hearing. They
were taken up for final hearing.

18. Mr. Godbole, the learned senior counsel appeared for
petitioners in Writ No.1991 of 2005. Mr. Kanetkar appeared for
petitioners in Writ Petition Nos.2119 of 2005 and 5838 of 2010 and
Mr. Drupad Patil appeared for petitioner in Writ Petition No.8720 of
2010. The learned counsel referred to the facts pertaining to the
individual writ petitions, but their submissions in respect of issues
arising in the writ petitions were common and hence, their
submissions are being referred to below:

(a) It was submitted that the said Rule for the city of Pune, is
unconstitutional as it violates Article 300A of the Constitution,
inasmuch as illusory compensation of ₹ 1 is offered for taking
away the common spaces in the layouts with which the
petitioners are concerned. It was submitted that although the
right to property no longer remained a fundamental right and it
was now a constitutional right under the said Article, any law
seeking to take away the rights of citizens in property, had to
pass the test of reasonableness and non-arbitrariness under
Article 14 of the Constitution. It was submitted that the said
Rule completely failed to pass the said test and hence, it is
required to be declared as unconstitutional.

(b) It was submitted that the said Rule specifically referred to
Sections 202 and 203 of the BPMC Act. But, the said sections
pertain to vesting of public streets in the Municipal Corporation,
in this case, the respondent – PMC. The said provisions are
found in Chapter XIV, which pertains only to streets. The said
chapter and the provisions contained therein, including Sections

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202 and 203 thereof, have nothing to do with open spaces and
yet, the said Rule identifies its source of power in the said
provisions. Therefore, the said Rule is ultra vires the BPMC Act
itself. On this ground also, the petitions deserve to be allowed.

(c) There is no statutory source of power for enacting the said Rule,
which effectively takes away the land in common spaces of
layouts to the detriment of the plot holders in the society and
the land owners. The compensation of merely ₹ 1 is illusory and
hence, it violates the rights of the petitioners. Reliance is placed
on the judgements of the Supreme Court in the cases of
Yogendra Pal and others vs. Municipality, Bhatinda and another ,
(1994) 5 SCC 709 and Pt. Chet Ram Vashist vs. Municipal
Corporation of Delhi, (1995) 1 SCC 47 and recent judgement in
the case of Bernard Francis Joseph Vaz and others vs.
Government of Karnataka and others, (2025) 7 SCC 580. Much
emphasis is placed on the observations made by the Supreme
Court in the case of Yogendra Pal and others vs. Municipality,
Bhatinda and another (supra), wherein it was observed that
mere use of word ‘transferred’ in the subject provision, would
not save the action of the respondents, for the reason that even
if the word ‘acquired’ was not used, the land owner or the
society of plot holders lose their rights of ownership, for which
they need to be compensated in a fair and reasonable manner.

(d) The learned counsel for the petitioners placed reliance on the
judgement of this Court in the case of Vrajlal Jinabhai Patel and
another vs. State of Maharashtra and others , (2003) 3 Mh.L.J.
215, wherein this Court considered an identical bye-law of the
Standardised Building Bye-laws and Development Control
Rules, framed under the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965. This Court held

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that the said bye-law referred to Section 183 of the said Act
relating to new streets, having nothing to do with open spaces
and yet, it effectively provided for acquisition of the open spaces
in the layout for illusory compensation of ₹ 1. The said petition
was allowed and the resolution of municipal council was set
aside. A similar view was taken by this Court in the case of State
of Maharashtra vs. Bhimashankar Sidramappa Chippa , 2009 (5)
Mh.L.J. 76. It was emphasized that in the said case also,
compensation of only ₹ 1 had been offered.

(e) It was further submitted that the said position of law was
reiterated in a recent judgement of this Court in the case of Sha
Vijay Anandrao Sawant and others vs. Baramati Nagar Parishad
and others, (judgement and order dated 03.12.2025 passed in
Writ Petition No.1239 of 2002). This Court held in favour of the
petitioners therein in the context of a similar Rule/regulation,
providing for handing over of open spaces to the planning
authority for nominal amount of ₹ 1 towards compensation. On
this basis, it was submitted that the Supreme Court as well as
this Court has consistently quashed and set aside such action
taken by planning authorities and municipal bodies, seeking to
acquire or transfer open spaces in developed layouts, either
without compensation or with illusory compensation of ₹ 1.

(f) It was further submitted that in these writ petitions, all the
layouts were sanctioned much prior to the aforesaid DC Rules
coming into force for the city of Pune on 05.02.1987. The said
Rules were dated 05.01.1987, but they came into effect from
05.02.1987. It was submitted that therefore, the respondent –
PMC was not justified in relying upon the said Rule to virtually
take away the land concerning open spaces in the layouts, by
offering illusory compensation of ₹ 1.

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(g) It was submitted that the said Rule is further unsustainable, for
the reason that it is open to arbitrary use by the respondent –
PMC. There is no definition of ‘misuse’ of open spaces and
therefore, the respondent – PMC can use the said Rule in an
unbridled manner, claiming misuse to then walk into the said
open spaces of the layout, by relying upon the said Rule and
offering illusory compensation of mere ₹ 1. It was further
submitted that none of the petitioners were ever issued prior
notices about the alleged misuse.

(h) It was submitted that even as per the understanding of the
officials of respondent – PMC, in one of the writ petitions before
this Court in this bunch, the concerned authorities had already
initiated the process of acquisition, even approaching the Land
Acquisition Officer for the same and then, suddenly issued the
paper publication, purporting to take the open spaces in the
layout, by relying upon the said Rule. This further indicates the
arbitrary nature of actions undertaken by respondent – PMC in a
large measure on the basis of the unbridled and arbitrary power
available to the said respondent, under the said Rule.

(i) It was submitted that the respondent – PMC cannot rely upon
the judgement of the Supreme Court in the case of Association
of Vasanth Apartments’ Owners vs. V. Gopinath and others ,
(2024) 18 SCC 443, for the reason that the facts in the said case
are clearly distinguishable. Much emphasis was placed on the
fact that in the said case, the development plan, master plan
and town planning scheme having statutory source of power,
had framed a particular Rule in the Development Control Rules,
which the Supreme Court, on facts, found to be ‘law’ under
Article 300A of the Constitution, which was sustainable. The
manner in which the Supreme Court distinguished the said case

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from the judgements in the cases of Yogendra Pal and others vs.
Municipality, Bhatinda and another (supra), Pt. Chet Ram
Vashist vs. Municipal Corporation of Delhi (supra) and other
such cases, itself demonstrates the fallacy in the contention
raised on behalf of the respondent – PMC. It was submitted that
the issue raised in the present writ petitions stood covered in
the aforementioned earlier judgements of the Supreme Court
and hence, the respondent – PMC cannot justify the impugned
Rule on the basis of the judgement of the Supreme Court in the
case of Association of Vasanth Apartments’ Owners vs. V.
Gopinath and others (supra).

(j) It was further submitted that when the respondent – PMC and
the State authorities were unable to justify their contentions,
they took a stand that the impugned declarations published in
newspapers by relying upon the said Rule, did not amount to an
action for acquisition of land pertaining to open spaces in the
layout, but it was merely exercising police powers for
management of open spaces. It was submitted that the said
contention deserves to be rejected, as it is an after-thought and
there is no material on record to support the same. As a matter
of fact, it was submitted that a similar contention sought to be
raised in the case of Yogendra Pal and others vs. Municipality,
Bhatinda and another (supra), was rejected by the Supreme
Court.

19. On the basis of the aforesaid submissions, it was contended on
behalf of the petitioners that the writ petitions ought to be allowed in
terms of the prayers made therein.

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20. On the other hand, Mr. Pethe, learned counsel appearing for
respondent – PMC submitted as follows:

(a) It was submitted that the contentions raised on behalf of the
petitioners, by relying upon the judgements of the Supreme
Court in the case of Yogendra Pal and others vs. Municipality,
Bhatinda and another (supra) and Pt. Chet Ram Vashist vs.
Municipal Corporation of Delhi (supra), are unsustainable. It
was submitted that in the case of Pt. Chet Ram Vashist vs.
Municipal Corporation of Delhi (supra), a resolution of the
municipal body was subject matter of challenge and there was
no reference to any statutory provision or Rule. In such
circumstances, the Supreme Court held that the action taken by
the said municipal body was not sustainable, without
determination and payment of compensation. In the case of
Yogendra Pal and others vs. Municipality, Bhatinda and another
(supra), although the statutory provision was considered, it was
crucial to note that the said case pertained to the time period
when the right to property was a fundamental right. The instant
petitions are to be considered on the touchstone of the right to
property being a constitutional right under Article 300A of the
Constitution and not a fundamental right.

(b) It was submitted that as per Article 300A of the Constitution, a
person can be deprived of property by authority of law. It was
submitted that in the present case, the said Rule is the law upon
which the respondent – PMC has placed reliance to justify its
actions. In this context, much reliance was placed in the
aforesaid judgement of the Supreme Court in the case of
Association of Vasanth Apartments’ Owners vs. V. Gopinath and
others (supra). It was submitted that in the said recent
judgement, the Supreme Court took into consideration the

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whole cross-section of views in the earlier judgements on the
nature of right protected under Article 300A of the Constitution.

It was submitted that a similar Development Control Rule was
upheld as good law for requiring execution of gift deed in
respect of 10% land to be kept for open spaces in a development
project, without payment of any compensation. It was submitted
that the said latest position of law clearly covered the matter in
favour of the respondent – PMC and therefore, the petitions
deserve to be dismissed.

(c) It was emphasized that in the facts of the present case, the
action on the part of the respondent – PMC was necessitated,
due to misuse of open spaces in the layouts. In such a situation,
the respondent – PMC exercised its police power of
management and maintenance of open spaces and this clearly
does not amount to acquisition of land concerned with the open
spaces. Much emphasis was placed on the second limb of the
said Rule, to contend that the action of the said respondent was
for greater public good. The open spaces are lungs of the city
and such open spaces cannot be permitted to be wasted or
misused by the land owners or plot holders in the layout. On
this basis, the action was sought to be justified.

(d) The judgements relied upon by the petitioners were sought to
be distinguished on facts and it was submitted that the present
cases were clearly covered under the recent judgement of the
Supreme Court in the case of Association of Vasanth
Apartments’ Owners vs. V. Gopinath and others (supra). It was
emphasized that in one of the cases, after taking possession of
the open space, the respondent – PMC had developed a garden
for public use and hence, this Court may not show any
indulgence to the petitioners.

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21. Mr. Patel, learned AGP appearing on behalf of the respondent –
State, vehemently defended framing of the said Rules. He submitted
that the development plan under Sections 22 and 26 of the
Maharashtra Regional and Town Planning Act, 1966, mandated open
spaces to be kept available in layouts and therefore, the subject DC
Rules also provided for the same. On this basis, it was submitted that
insofar as the open spaces are concerned, the planning authority
would be entitled to take over the same, for ensuring that such open
spaces are utilized for the common benefit of the occupants as well
as the public at large.

22. It was submitted that the nature of power exercised under the
aforesaid Rule did not result in ownership or absolute ownership
changing hands and therefore, only a nominal compensation of ₹ 1
was provided therein. The learned AGP also placed emphasis on the
second part of the said Rule, to contend that there was absence of
absolute vesting, thereby justifying the framing of the said Rule
under Sections 202 and 203 of the BPMC Act, now the MMC Act.

23. The learned AGP also submitted that the said Rule does not
pertain to either acquisition or arbitrary deprivation of property.
Instead, it was a condition voluntarily accepted by the developer, in
exchange of valuable rights. In this context, much emphasis was
placed on the fact that no separate FSI or utilization of space was
available for the open spaces, as the same stood utilized in the other
parts of the layout, where the plots had been demarcated for
development. On this basis, it was submitted that nominal value of
₹ 1 for compensation, was clearly justified.

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24. The learned AGP also relied upon the recent judgement of the
Supreme Court in the case of Association of Vasanth Apartments’
Owners vs. V. Gopinath and others (supra), to support the
contentions raised by the learned counsel for the respondent – PMC.
On this basis, it was submitted that the writ petitions deserve to be
dismissed.

25. This Court has carefully considered the rival submissions. The
judgements referred to by the learned counsel for the rival parties
show that they pertain to the right to property. It is to be noted that
the judgements need to be appreciated in the backdrop of the fact
that while the right to property was earlier recognized as a
fundamental right under Article 19(1)(f) of the Constitution, by the
44th amendment of the Constitution, the said Article 19(1)(f) was
deleted and instead, the right to property was recognized as a
constitutional right under Article 300A of the Constitution. Even
though the right to property is now a constitutional right, instead of
being a fundamental right, the Supreme Court, in various
judgements, including judgement in the case of Bernard Francis
Joseph Vaz and others vs. Government of Karnataka and others
(supra), has recognized that the said right is a human right, which
cannot be casually trampled upon.

26. In the case of Kolkata Municipal Corporation and another vs.
Bimal Kumar Shah and others, (2024) 10 SCC 533, the Supreme
Court considered the nature of the right to property as a
constitutional right under Article 300A and recognized 7 sub-rights
within the said right under the said Article and observed as follows:

’30. What then are these sub-rights or strands of this
swadeshi constitutional fabric constituting the right

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to property? Seven such sub-rights can be identified,
albeit non-exhaustive. These are:

(i) The duty of the State to inform the person that
it intends to acquire his property — the right to
notice,

(ii) The duty of the State to hear objections to the
acquisition — the right to be heard,

(iii) The duty of the State to inform the person of its
decision to acquire — the right to a reasoned
decision,

(vi) The duty of the State to demonstrate that the
acquisition is for public purpose — the duty to
acquire only for public purpose,

(v) The duty of the State to restitute and
rehabilitate — the right of restitution or fair
compensation,

(vi) The duty of the State to conduct the process of
acquisition efficiently and within prescribed
timelines of the proceedings — the right to an
efficient and expeditious process, and

(vii) The final conclusion of the proceedings leading
to vesting — the right of conclusion.

31. These seven rights are foundational components of
a law that is tune with Article 300-A, and the
absence of one of these or some of them would
render the law susceptible to challenge. The
judgment of this Court in K.T. Plantation [K.T.
Plantation (P) Ltd. v. State of Karnataka, (2011) 9
SCC 1: (2011) 4 SCC (Civ) 414] declares that the
law envisaged under Article 300-A must be in line
with the overarching principles of rule of law, and
must be just, fair, and reasonable. It is, of course,
precedentially sound to describe some of these sub-
rights as “procedural”, a nomenclature that often
tends to undermine the inherent worth of these
safeguards. These seven sub-rights may be
procedures, but they do constitute the real content
of the right to property under Article 300-A, non-
compliance of these will amount to violation of the
right, being without the authority of law.

32. These sub-rights of procedure have been
synchronously incorporated in laws concerning
compulsory acquisition and are also recognised by

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our constitutional courts while reviewing
administrative actions for compulsory acquisition of
private property. The following will demonstrate
how these seven principles have seamlessly become
an integral part of our Union and State statutes
concerning acquisition and also the constitutional
and administrative law culture that our courts have
evolved from time to time.’

27. In the case of K. T. Plantation Private Limited and another vs.
State of Karnataka, (2011) 9 SCC 1, a Constitution Bench of the
Supreme Court, in the context of Article 300A of the Constitution,
referred to the twin aspects of public purpose and compensation,
concerning the right to property and held that a law or a Rule
depriving a person of a property, is amenable to judicial review. The
Supreme Court in the said judgement, examined as to whether there
was a requirement of payment of compensation as a rule, after
deletion of Article 31(2) of the Constitution, in the context of right to
property under Article 300A. The relevant discussion in the said
judgement is as follows:

‘189.Requirement of public purpose, for deprivation of a
person of his property under Article 300-A, is a
precondition, but no compensation or nil
compensation or its illusiveness has to be justified
by the State on judicially justiciable standards.
Measures designed to achieve greater social justice,
may call for lesser compensation and such a
limitation by itself will not make legislation invalid
or unconstitutional or confiscatory. In other words,
the right to claim compensation or the obligation to
pay, though not expressly included in Article 300-A,
it can be inferred in that article and it is for the
State to justify its stand on justifiable grounds which
may depend upon the legislative policy, object and
purpose of the statute and host of other factors.

190. Article 300-A would be equally violated if the
provisions of law authorising deprivation of
property have not been complied with. While

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enacting Article 300-A Parliament has only
borrowed Article 31(1) (the “Rule of Law” doctrine)
and not Article 31(2) (which had embodied the
doctrine of eminent domain). Article 300-A enables
the State to put restrictions on the right to property
by law. That law has to be reasonable. It must
comply with other provisions of the Constitution.

The limitation or restriction should not be arbitrary
or excessive or what is beyond what is required in
public interest. The limitation or restriction must
not be disproportionate to the situation or excessive.

191. The legislation providing for deprivation of property
under Article 300-A must be “just, fair and
reasonable” as understood in terms of Articles 14 ,
19(1)(g), 26(b), 301, etc. Thus in each case, courts
will have to examine the scheme of the impugned
Act, its object, purpose as also the question whether
payment of nil compensation or nominal
compensation would make the impugned law
unjust, unfair or unreasonable in terms of other
provisions of the Constitution as indicated above.

192. At this stage, we may clarify that there is a
difference between “no” compensation and “nil”
compensation. A law seeking to acquire private
property for public purpose cannot say that “no
compensation shall be paid”. However, there could
be a law awarding “nil” compensation in cases
where the State undertakes to discharge the
liabilities charged on the property under acquisition
and onus is on the Government to establish validity
of such law. In the latter case, the Court in exercise
of judicial review will test such a law keeping in
mind the above parameters.

193. Right to property no more remains an overarching
guarantee in our Constitution, then is it the law, that
such a legislation enacted under the authority of
law as provided in Article 300-A is immune from
challenge before a constitutional court for violation
of Articles 14 , 21 or the overarching principle of the
rule of law, a basic feature of our Constitution,
especially when such a right is not specifically
incorporated in Article 300-A, unlike Article 30(1-A)

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and the second proviso to Article 31-A(1).

194. Article 31-A was inserted by the First Amendment
Act, 1951 to protect the zamindari abolition laws
and also the other types of social, welfare and
regulatory legislations affecting private property.
The right to challenge laws enacted in respect of
subject-matter enumerated under Article 31-A(1)( a)
to (g) on the ground of violation of Article 14 was
also constitutionally excluded.

195. Article 31-B read with Schedule IX protects all laws
even if they are violative of the fundamental rights,
but in I.R. Coelho case [(2007) 2 SCC 1] , a
Constitution Bench of this Court held that the laws
added to Schedule IX, by violating the constitutional
amendments after 24-12-1973, if challenged, will be
decided on the touchstone of right to freedom
guaranteed by Part III of the Constitution and with
reference to the basic structure doctrine, which
includes reference under Article 21 read with
Articles 14 , 15, etc. Article 14 as a ground would
also be available to challenge a law if made in
contravention of Article 30(1-A).

196. Article 265 states that no tax shall be levied or
collected except by authority of law, then the
essential characteristics of tax is that it is imposed
under statutory power, without taxpayer’s consent
and the payment is enforced by law.

197. A Constitution Bench of this Court in Kunnathat
Thatehunni Moopil Nair case [AIR 1961 SC 552]
held that Sections 4, 5-A and 7 of the Travancore-
Cochin Land Tax Act were unconstitutional as being
violative of Article 14 and was held to be in
violation of Article 19(1)(f). Of course, this decision
was rendered when the right to property was a
fundamental right.

198. Article 300-A, unlike Articles 31-A(1) and 31-C, has
not made the legislation depriving a person of his
property immune from challenge on the ground of
violation of Article 14 or Article 21 of the
Constitution of India, but let us first examine
whether Article 21 as such is available to challenge

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a statute providing for no or illusory compensation
and, hence, expropriatory.’

28. Thereafter, the Supreme Court in the said case, made the
following emphatic statement:

‘219.One of the fundamental principles of a democratic
society inherent in all the provisions of the
Constitution is that any interference with the
peaceful enjoyment of possession should be lawful.
Let the message, therefore, be loud and clear, that
the rule of law exists in this country even when we
interpret a statute, which has the blessings of Article
300-A.’

29. On this basis, in the said judgement, the Supreme Court held
that a statute depriving a person of a property, is amenable to judicial
review on grounds indicated above and that public purpose is a pre-
condition of depriving a person of his property under Article 300A of
the Constitution and right to claim compensation is also inbuilt in
that Article, further observing that when a person is deprived of his
property, the State has to justify its action and the concerned
Rule/law is also required to be justified.

30. Therefore, we are of the opinion that the respondents cannot
refute the contentions raised on behalf of the petitioners, only on the
ground that right to property is no longer a fundamental right and
that it is now merely a constitutional right guaranteed under Article
300A of the Constitution.

31. But, before examining as to whether the said Rule qualifies as
‘law’ to come to the rescue of the respondents to claim that the
impugned action being with authority of law, does not violate Article
300A of the Constitution, it would be appropriate to first deal with

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the contention raised on their behalf that in the present case, there is
no acquisition or taking over of the land concerning open spaces, but
it is merely taking over of management of the open spaces by
exercising police powers. In order to test the said contention, it is
necessary to examine the impugned declarations published on behalf
of the respondent – PMC in the newspapers that led to the petitioners
rushing to this Court.

32. A bare perusal of the said declarations published in
newspapers on behalf of respondent – PMC shows that specific
reliance is placed on the said Rule and it is asserted that the said
respondent is taking possession of the lands concerning open spaces
for nominal compensation of ₹ 1. These declarations proceeded on
the basis that the open spaces have been ‘misused’. The said
declarations were not preceded by any show cause notice to either
the society of plot holders, individual plot holders in the layouts or
the land owners, who had developed the layouts. In the declarations,
the said respondent called for objections within a month, indicating
that such an opportunity was granted post-issuance of such
declarations.

33. The respondents have asserted that the impugned declarations
do not amount to acquisition or intention to acquire the lands in the
open spaces for nominal compensation of ₹ 1, as transferring of the
open spaces to respondent – PMC would not amount to acquisition.
An identical contention was raised on behalf of a similarly placed
municipal body before the Supreme Court in the case of Yogendra Pal
and others vs. Municipality, Bhatinda and another (supra). While
dealing with the said contention, the Supreme Court observed as
follows:

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’15. The contention that the expression used in the said
provision being “transferred” and not “acquired”
would show that the rights and interests of the
landowner in the land in question are not
extinguished and he continues to remain the owner
thereof, the transfer being only for a limited
purpose, has only to be stated to be rejected. As
pointed out above, there is no provision in the Act
to suggest that in spite of the land being used for a
public purpose, the possession, ownership or
occupation, of the transferred land remains with the
landowner and that he can deal with or dispose of
the same as he desires. In fact, the provision shows
that he can exercise his rights over the land so
transferred only as a member of the public and no
longer as the owner of the land. His rights vis-a-vis
the transferred land are on a par with those of the
other members of the public. It is also not correct to
say that the purpose is limited. We have been
unable to understand the expression “limited” in the
present context. It is not suggested that the purpose
for which the land is taken is of a limited duration
and that the land would be restored to the
landowner after the purpose is over. In fact, even for
such use of the land for a limited period, the
landowner will have to be compensated suitably.

16. We may in this connection contrast the provisions of
Section 192(1)(c) with those of Section 169. The
said section gives the Municipal Committee powers
in connection with laying and making public streets
and constructing tunnels and other works subsidiary
thereto. Clause (f) of the said section provides for
acquisition of any land along with the building
thereon for that purpose. The proviso to clause ( g)
of the said section provides that the land so
acquired shall become the absolute property of the
Municipal Committee after it has continuously
vested in it for use as a public street for a period of
25 years and that if the land so acquired is not
needed for use as a public street before the expiry of
25 years from the time that it became vested in the
Municipal Committee, it shall be transferred back to
the proprietor of the land on payment by him of

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reasonable compensation to the Municipal
Committee for improvement made on such land and
subject to such restrictions as the Municipal
Committee may impose on the future use of such
land. If the proprietor is unable or unwilling to pay
the amount of such compensation, the Municipal
Committee is authorised to sell the land subject to
such conditions as it may deem fit and has to pay to
the owner the proceeds, if any, over and above the
amount of such compensation. Thus, the provisions
of Section 169 which give powers to the Municipal
Committee for laying public streets show firstly that
the Municipal Committee has to acquire the land for
the purpose by paying compensation to the
landowner. Secondly, if such acquired land
continues to be with the Municipal Committee for
use as a public street for a period of 25 years or
more, it becomes the absolute property of the
Municipal Committee in the sense that there is no
obligation on the Municipal Committee for restoring
its possession to the original owner of the land even
if the land ceases to be used for the purpose
thereafter. However, if such land ceases to be
required for use as a public street before the expiry
of 25 years from the time that it was acquired, there
is an obligation on the Municipal Committee to
transfer the same to its original owner albeit on
payment by him of reasonable compensation to the
Committee for improvement made on such land and
subject also to his using the said land in accordance
with the restrictions that the Municipal Committee
may impose. If the original landowner is unable or
unwilling to pay the amount of compensation, the
Municipal Committee is given power to sell it.

However, in that case, it has to pay to the original
landowner the proceeds of such sale, if any, which
are over and above such compensation. These
provisions of Section 169 show that there is a
distinct inconsistency between them and the
provisions of Section 192(1)(c). Whereas under

Section 169, the land is to be acquired only for
making or laying public streets, under Section
192(1)(c), the land may be “transferred” for any
public purpose including for use as a public street.
Further, under Section 169, the land is to be

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acquired by payment of compensation for the whole
of it and, as pointed out above, if within 25 years of
such acquisition it is not required for use as a public
street it is to be restored to the original landowner
subject to his agreeing to pay the compensation for
the improvement made thereon and accepting the
restrictions as may be imposed by the Municipal
Committee for its future use. What is more, if he is
unable or unwilling to take the land back on the
said terms, and the Municipal Committee sells such
land to others, he is entitled to receive the excess
sale proceeds, if any. However, under Section
192(1)(c), no compensation is payable to the
landowner when the land “transferred” even though
for use as public street is below 25 per cent of the
total land of the landowner and the rate at which
the compensation shall be paid when it is above 25
per cent, is in the discretion of the Municipal
Committee. What is more, when the land is so
transferred for use as public street under Section
192(1)(c), the land remains forever with the
Municipal Committee and there is no provision for
its restoration to the landowner even if it is not
required or ceases to be required for use as public
street within 25 years of such transfer.

17. The contention that the expression used under
Section 192(1)(c) is “transferred” as against
“acquired” and, therefore, the landowner does not
lose his rights of ownership and that the possession
continues to be with the landowner has also no
merit. In the absence of any provision in the Act
which suggests that the landowner continues to be
the owner of the land or that the land remains in his
possession in spite of the transfer and that he is
entitled to deal with or dispose of the same as he
desires, it is obvious that the use of the word
“transferred” is a euphemism for “acquisition”. We
have also emphasised above the fact that if the land
was not to vest in the Municipal Committee there
was no need for the Legislature to provide for
payment of compensation even when the land so
“transferred” exceeds 25 per cent of the total
holding of the landowner. We are, therefore, more
than satisfied that when the land is “transferred”

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under Section 192(1)(c) of the Act, the transfer is
nothing short of acquisition divesting the landowner
of all his rights as owner of the land.

18. The next contention is that the transfer of the land
is also for the benefit of the transferor landowner
and in fact the balance of the land which remains
with him appreciates in value to an extent which
more than sufficiently compensates him for the loss
of the land. Hence there is no need to pay him
separate compensation for the extent of land up to
25 per cent transferred to the Municipal Committee.
The contention suffers from several fallacies. In the
first instance, as the provisions of the section
themselves point out, the land is to be transferred
for a public purpose including for use as public
street. The purpose of the transfer itself suggests
that the transferor landowner is not exclusively to
be benefited by the public purpose. He enjoys the
benefit, if any, along with the other members of the
public. There is no reason why, therefore, he should
alone pay for the said benefit in terms of his land.
Secondly, the public purpose which is served by the
Municipal Committee, assuming it increases the
value of the remaining land, also contributes to the
increase in the value of the land of all other
landowners, which lands are similarly benefited by
the said public purpose. There is, therefore, no
reason why the landowner whose land is
“transferred” for the purpose alone should pay for
the increase in the value of his remaining land in
terms of the transferred land. In fact, whereas it is
only the remaining land of the transferor landowner
which is benefited by such increase in value, if any,
the whole of the land in the possession of the other
landowners is benefited by the accretion in value.
Thus, on both accounts, there is a clear violation of
Article 14 of the Constitution to make only the
transferor landowner suffer for the public purpose.
What is further, it is problematic and is in the realm
of speculation as to whether the appreciation of the
value of the remaining property of the transferor
landowner will always be equivalent to or more
than the value of the land transferred to the
Municipal Committee, assuming that the public

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purpose for which the land is taken over contributes
to the increase in the value of the remaining
property. Lastly, and this is equally important, in
many cases the accretion to the value of the
remaining property may merely be on paper and be
a poor consolation to the transferor landowner if he
cannot or is unable for one reason or the other to
sell or otherwise dispose of the said property. On the
other hand, in such cases, the accretion in value
may prove a burden if the property tax, wealth tax,
estate duty etc. are calculated on the basis of the
market value of the property. The so-called increase
in the value of the property may thus prove a
liability to those who cannot dispose of their
property. Looked at from any angle, the argument
that the transferor landowner is benefited because
his remaining property appreciates in value and,
therefore, he need not be paid separate
compensation for the land which is transferred, is
untenable in law. We thus find that the provisions of
Section 192(1)(c) are violative of Article 14 of the
Constitution.’

34. In the light of the said position of law clearly laid down by the
Supreme Court in the aforementioned judgement, we find that the
contention raised on behalf of the respondents that the impugned
declarations do not amount to acquisition of the lands concerning
open spaces in the layouts, is unsustainable. Hence, it is rejected.

35. We find that the argument raised on behalf of the respondents
that only management of open spaces was intended to be taken over
by the impugned declarations in exercise of ‘police powers’ of the
State, apart from being an after-thought, is not sustainable on the
very contents of the impugned declarations. We find that by the
impugned declarations, the respondent – PMC took over/intended to
take over and acquire the lands concerning open spaces in the
layouts, for the aforesaid nominal compensation of ₹ 1.

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36. In this context, it would also be relevant to refer to the
observations made by the Supreme Court in the case of Pt. Chet Ram
Vashist vs. Municipal Corporation of Delhi (supra). Although in the
said case, a resolution of a municipal body was the subject matter of
challenge and the Court found that there was no statutory basis for
seeking transfer of open spaces to the municipal body free of cost,
the nature of right available to the owner in the context of such open
spaces, was considered. The following observation was made:

‘6. Reserving any site for any street, open space, park,
school etc. in a layout plan is normally a public
purpose as it is inherent in such reservation that it
shall be used by the public in general. The effect of
such reservation is that the owner ceases to be a
legal owner of the land in dispute and he holds the
land for the benefit of the society or the public in
general. It may result in creating an obligation in
nature of trust and may preclude the owner from
transferring or selling his interest in it. It may be
true as held by the High Court that the interest
which is left in the owner is a residuary interest
which may be nothing more than a right to hold this
land in trust for the specific purpose specified by the
coloniser in the sanctioned layout plan. But the
question is, does it entitle the Corporation to claim
that the land so specified should be transferred to
the authority free of cost. That is not made out from
any provision in the Act or on any principle of law.
The Corporation by virtue of the land specified as
open space may get a right as a custodian of public
interest to manage it in the interest of the society in
general. But the right to manage as a local body is
not the same thing as to claim transfer of the
property to itself. The effect of transfer of the
property is that the transferor ceases to be owner of
it and the ownership stands transferred to the
person in whose favour it is transferred. The
resolution of the Committee to transfer land in the
colony for park and school was an order for transfer
without there being any sanction for the same in
law.’

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37. Thus, we find that the land owner/society of plot holders in
such layouts, continue to have rights in the land concerning open
spaces and when the planning authority or the municipal body takes
over such lands, the question of payment of compensation or
deprivation of such rights, clearly arises for consideration. As noted
hereinabove, in the case of K. T. Plantation Private Limited and
another vs. State of Karnataka (supra), the constitution bench of the
Supreme Court clearly held that just, fair and reasonable
compensation has to be paid. This has to be appreciated in the
backdrop of the position of law recognized by the Supreme Court in
various cases, including in the case of Tukaram Kana Joshi and others
vs. Maharashtra Industrial Development Corporation and others ,
(2013) 1 SCC 353, reiterated in the recent judgement of the
Supreme Court in the case of Bernard Francis Joseph Vaz and others
vs. Government of Karnataka and others (supra). In the said
judgement, the Supreme Court held that the constitutional right to
property under Article 300A, was indeed a ‘human right’ and also
emphasized that under Article 226 of the Constitution of India, the
High Courts ought to adopt a pro-active role, so as to ensure that the
valuable right under Article 300A of the Constitution, is protected.

38. It is also significant to note that this Court, while dealing with
an identical Rule, in the case of Vrajlal Jinabhai Patel and another vs.
State of Maharashtra and others (supra), held that such a Rule
violated Article 300A of the Constitution. It is significant to note that
apart from the argument pertaining to violation of Article 300A of
the Constitution, in the said case also, it was specifically argued that
an identically worded bye-law referred to a statutory provision
concerning new streets, with no reference to open spaces. In such a

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factual backdrop and while analysing an identically worded bye-law,
this Court held in favour of the petitioner therein. It would be
appropriate to refer to the said bye-law and the relevant portion from
the aforesaid judgement. Bye-law 14.3 of the Standardised Building
Bye-laws and Development Control Rules, framed under the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965, reads as follows:

‘14.3. Whenever called upon by the Planning Authority
to do so, under provisions of section 183 of MM
Act areas under roads and open space in Bye-law
Nos. 14.1 and 14.2 shall be handed over to the
Planning Authority after development of the same
for which nominal amount (of ₹ 1) shall be paid
by the Planning Authority. In case of the owners
who undertake to develop the open spaces for
bona fide reasons as recreational community
open spaces, the Authority may permit the owner
to develop the open space unless the Authority is
convinced that there is misuse of development of
open spaces in which case the Authority shall
take over the land.’

39. In the context of the above-quoted bye-law, identically worded
as the impugned Rule herein, this Court held as follows:

‘7. Rule 14 appears to have been framed in furtherance
of section 183 of the Act which relates to laying out
or making of a new streets. It nowhere provides for
the open spaces. Therefore, the power, if any, of
acquiring the land under the streets is only
contemplated under section 183. Acquisition of
open spaces is not contemplated under section 183.
Rule 14.3 which is a delegated legislation cannot,
confer a power of acquisition of the open space
under the layout. Under Article 300-A of the
Constitution of India, no person shall be deprived of
his property save by authority of law. The authority
of law means by or under any law made by a
competent legislature. No law made by the
legislature was shown to us under which the
ownership in the open space could be vested or

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transferred to the Municipal Council whether by
payment of compensation of Re. 1/- or otherwise. In
the circumstances, we reject the alternative
contention of Shri Joshi that the open space under
the layout would be vested in the Municipality on
payment of compensation of Re. 1/-.’

40. The said position was followed in the subsequent judgement in
the case of State of Maharashtra vs. Bhimashankar Sidramappa
Chippa (supra) and also in the aforesaid recent judgement in the
case of Vijay Anandrao Sawant and others vs. Baramati Nagar
Parishad and others (supra). The said recent judgement considered
an identically worded Regulation 19.3 of the Development Control
Regulations, applicable to the respondent – municipal council
therein. Thus, this Court has consistently held such action of taking
over lands concerning open spaces by offering nominal compensation
of Re.1 based on such bye-laws/Rules, as unsustainable.

41. We find substance in the contention raised on behalf of the
petitioners that in these cases also, the said Rule is unsustainable as
it violates Article 300A of the Constitution by offering illusory
compensation of ₹ 1 and also because it refers to its source of power
to two provisions in the parent statute that have nothing to do with
open spaces.

42. At this stage, it would be relevant to quote Rule 13.3.1.5 of the
DC Rules, which reads as follows:

‘13.3.1.5 Whenever called upon by the Planning
Authority to do so, under provisions of Section 202,
203 of BPMC Act areas under roads and open space
in Bye-law Nos. 12.3 to 12.5, 13.3 shall be handed
over to the Planning Authority after development of
the same for which nominal amount (of ₹ 1) shall
be paid bý the Planning Authority. In case of the
owners who undertake to develop the open spaces

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for bona fide reasons as recreational community
open spaces, the Authority may permit the owner to
develop the open space unless the Authority is
convinced that there is misuse of open spaces in
which case the Authority shall take over the land.’

43. A bare perusal of the above-quoted Rule shows that it
specifically refers to Sections 202 and 203 of the BPMC Act. Thus,
the source from the parent statute is found in the aforementioned
two provisions. Sections 202 and 203 of the BPMC Act read as
follows:

‘202. Vesting of public streets in Corporation
All streets within the City being, or which at any
time become, public streets, except streets which on
the appointed day vested in the [Government] or
which after the said day may be constructed and
maintained by an authority other than the
Corporation, and the payments, stones and ether
materials thereof shall vest in the Corporation and
be under the control of the Commissioner.

203. Power of Commissioner in respect of public streets
(1) The Commissioner shall from time to time cause all
public streets vested in the Corporation to be
levelled, metalled or paved, channelled, altered and
repaired, as occasion shall require, and may also
from time to time widen, extend or otherwise
improve any such street or cause the soil thereof to
be raised, lowered or altered and may place and
keep in repair fences and posts for the safety of
pedestrians :

Provided that no widening, extension or other
improvement of a public street, the aggregate cost
of which will exceed five thousand rupees or such
higher amount the Corporation may from time to
time fix, shall be undertaken by the Commissioner
unless or until such undertaking has been
authorised by the Corporation.

(2) With the sanction of the Corporation the
Commissioner may permanently close the whole or
any part of a public street vested in the Corporation:

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Provided that such sanction of the Corporation shall
not be given unless, one month at least before the
meeting at which the matter is decided, a notice
signed by the Commissioner has been put up in the
street or part of a street which it is proposed to
close, informing the residents of the said proposal,
nor until the objections to the said proposal, if any,
made in writing at any time before the day of the
said meeting have been received and considered by
the Corporation.’

44. A bare perusal of the above-quoted provisions of the BPMC
Act, which are purported source for framing the said Rule, shows
that the said provisions have nothing to do with open spaces in
sanctioned layouts. As a matter of fact, the said provisions are in
Chapter XIV of the BPMC Act, which specifically pertains to ‘streets’.
The chapter heading also refers to construction, maintenance and
improvement of streets. There is absolutely no reference to common
spaces. Thus, the said Rule is ultra vires the BPMC Act itself,
particularly because it sources its power only in Sections 202 and
203 thereof.

45. It is also relevant to note that there is a separate chapter in the
BPMC Act i.e. Chapter VIII, which specifically pertains to acquisition
of property. It consists of three provisions i.e. Sections 76 to 78
pertaining to acquisition of property and further provisions 79 to 81
pertaining to disposal of property. The said impugned Rule makes no
reference to the chapter pertaining to acquisition of property under
the BPMC Act. Since we have already rejected the contention of the
respondents that the impugned declarations amount to exercise of
police powers for management and not to acquisition of property, the
said Rule is found to be vulnerable on the aforesaid ground also that
it is not sourced from appropriate provisions in the BPMC Act. If the

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impugned Rule was to be sourced from the provisions of the BPMC
Act pertaining to acquisition of immovable property, compensation
would have to be paid in terms of the said Act, further indicating that
the nominal compensation of ₹ 1 stipulated in the said Rule is
illusory in nature and hence, hit by Article 300A of the Constitution.

46. We have already taken note of the position of law clarified by
the Constitution Bench of the Supreme Court in the case of K. T.
Plantation Private Limited and another vs. State of Karnataka
(supra), to the effect that law depriving a person of his property,
even under Article 300A of the Constitution, is not immune from
challenge before a Constitutional Court for violation of Article 14 of
the Constitution. We find that by applying the test to the impugned
Rule, the same is found to be arbitrary and unsustainable, not only
on the ground of offering illusory compensation of ₹ 1, but it also
fails to sustain itself from a valid statutory source, due to reference to
wholly irrelevant provisions of the BPMC Act.

47. A perusal of the contents of the said Rule shows that in the
first part, it simply declares that after development, the areas under

open spaces shall be handed over to the planning authority for
nominal amount of ₹ 1 and the second part leaves unbridled and
arbitrary power in the planning authority to take over the land for
‘misuse’ of open spaces. There is no definition or indication in the DC
Rules as to what could be said to be ‘misuse’ of open spaces. This
further indicates violation of Article 14 of the Constitution of India,
as non-arbitrariness is a fundamental requirement in such Rules
purportedly framed in exercise of statutory power. Thus, the said
Rule does not pass muster as ‘law’ under Article 300A of the
Constitution. In other words, recourse to the said Rule, while issuing

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the impugned declarations by respondent – PMC, renders its action
of taking over the lands in the open spaces of the layouts, as being
without authority of law. Hence, it is liable to be struck down.

48. The contention raised on behalf of the respondents that the
open spaces do find mention in the said DC Rules and that they being
the ‘lungs’ of the city, are required to be kept open and developed by
the planning authority, is also found to be unsustainable. In this
context, it would be relevant to refer to Rule 13.3.1.3 of the said DC
Rules, which reads as follows:

‘13.3.1.3 The structures to be permitted in the
resedential open spaces shall be as per the following
purposes:

(i) They shall be single storeyed structures with the
maximum built up area not exceeding 10% of the
open space. This shall be subject to maximum of
200 sq.metres. This facility shall be available for
open spaces having an area 500 sq.metres and
above only.

(ii) The structure shall be used for the purpose of
pavilion or Gymnasia or other recreational activities
which are related to open spaces; and

(iii) No detached toilet block shall be permitted.

Note: Every such plot and recreational open space shall
have an independent means of access of 5 M. width
minimum.’

49. A bare perusal of the above quoted Rule shows that
construction of structures is actually permitted in such open spaces in
layouts and that if there is any violation of the said Rule, the
respondent – PMC would be entitled to exercise its general municipal
powers to issue notices and take action, so as to ensure that such
structures are within the constraints specified in the above-quoted
Rule. This further indicates that the draconian power under the said

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Rule for taking over the land of open spaces for ‘misuse’, with
stipulation of payment of illusory compensation of ₹ 1, is wholly
arbitrary and hence, unsustainable.

50. The judgement of the Supreme Court in the case of Association
of Vasanth Apartments’ Owners vs. V. Gopinath and others (supra)
has been the sheet anchor of the contentions raised on behalf of the
respondents. According to them, the said judgement is an answer to
all the arguments raised on behalf of the petitioners in the context of
Article 300A of the Constitution. We have carefully perused the said
judgement. But, we find that the aforesaid judgement is
distinguishable on facts. The subject matter of consideration in the
said case was a Development Control Rule specifically stipulating
that 10% of area excluding roads, would be reserved and such area
would be transferred to the authority or local body free of cost,
through a deed. In that light, a gift deed was executed by the
developer, obviously without any consideration, for handing over
such 10% area to the planning authority. We find that the aforesaid
Rule was framed with reference to the specific statutory provisions in
the parent statute, concerning acquisition of land in context of
development plan, master plan and town planning scheme framed by
the planning authority. Specific reservations were contemplated and
stipulated in such statutory exercise of power by the planning
authority and in that context, the subject development control rule
was framed.

51. The said judgement of the Supreme Court makes an elaborate
reference to the scheme of Development Control Rules having
statutory flavour and how a group development of flats was
contemplated, which stipulated the extent of area required to be

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reserved for open spaces, depending upon the extent of layout in
which such group development or special buildings were permitted.
It is in the context of such a statutory scheme and on the facts
peculiar of the said case, that the Supreme Court upheld the validity
of the subject development control rule.

52. As a matter of fact, the said judgement of the Supreme Court
in the case of Association of Vasanth Apartments’ Owners vs. V.
Gopinath and others (supra) specifically referred to the
aforementioned judgements in the cases of Pt. Chet Ram Vashist vs.
Municipal Corporation of Delhi (supra), Yogendra Pal and others vs.
Municipality, Bhatinda and another (supra) and Tukaram Kana Joshi
and others vs. Maharashtra Industrial Development Corporation and
others (supra), while distinguishing them on facts to hold that the
development control rule under consideration, qualified as law that
did not fail the test of Article 14, consequently holding that Article
300A of the Constitution was not violated.

53. As a matter of fact, after distinguishing the aforementioned
earlier judgements of the Supreme Court on facts, it was held that
the impugned Development Control Rule therein neither violated
Article 300A of the Constitution, nor was it ultra vires the parent Act.

54. We are of the opinion that the facts of the instant cases and the
impugned Rule under challenge, are clearly distinguishable from
those with which the Supreme Court was concerned in the case of
Association of Vasanth Apartments’ Owners vs. V. Gopinath and
others (supra). In the present case, as noted hereinabove, the said
Rule refers to the statutory provisions of the parent Act i.e. Sections
202 and 203 of the BPMC Act, that have nothing to do with open

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spaces. The said Rule makes no reference to the power under the
BPMC Act for acquisition of property and yet, it stipulates taking over
of the open spaces and the property concerned therewith on payment
of illusory compensation of ₹ 1. Therefore, the respondents are not
justified in relying upon the aforesaid judgement of the Supreme
Court in the case of Association of Vasanth Apartments’ Owners vs. V.
Gopinath and others (supra).

55. Apart from this, we find that in all these petitions, the layouts
were sanctioned well before the said DC Rules came into force on
05.02.1987. This is also a factor in favour of the petitioners. We also
find substance in the contention of the petitioners that under the
garb of ‘public good’, the respondent – PMC intended to virtually
walk into the common spaces in the layouts on the purported ground
of ‘misuse’. There is substance in the contention raised on behalf of
the petitioners that the plot holders of the society and the land
owners have a right to use the common spaces within the framework
provided even by the Development Control Rules and that
respondent – PMC cannot be allowed walk into the same and also it
cannot claim that it is entitled to take over the open spaces on
payment of illusory compensation of ₹ 1 and then make the open
spaces available for use by general public. On this ground also, we
find substance in the contentions raised on behalf of the petitioners.

56. The respondent – State has claimed that the impugned action
under the said Rule is neither acquisition nor deprivation of property
and that it is a condition voluntarily accepted in exchange for
development rights and hence, the token compensation of ₹ 1 is
justified. The said argument is stated only to be rejected. The
condition of keeping open spaces has been abided by the land

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owners/society of plot holders and the impugned declarations
published in newspapers relying upon the said Rule, amount to
taking over and acquisition of lands pertaining to the open spaces.
The compensation of ₹ 1 is found to be illusory and there is no scope
for any ‘token’ compensation, so long as the open spaces are utilized
in terms of the DC Rules. Even if there is any misuse or construction
of structures in the open spaces violating the Rules, the respondent –
PMC could take appropriate action for bringing the same in line with
the Rules. But, taking over of the property by offering such illusory
compensation, is wholly unsustainable.

57. In view of the above, the writ petitions are allowed. The
impugned Rule 13.3.1.5 of the DC Rules is held unconstitutional, as
it violates Article 300A of the Constitution and hence, it is struck
down. It is also found to be ultra vires of the BPMC Act, now MMC
Act. Consequently, the impugned declarations published in
newspapers by respondent – PMC are quashed and set aside. We
further direct that all consequential actions taken by the respondent

– PMC and others, in pursuance of the impugned declarations, shall
stand rectified to restore the status, as existed prior to issuance of the
impugned declarations. It is held that the petitioners are entitled to
use the open spaces in accordance with law.

58. Pending civil application also stands disposed of.

59. Rule is made absolute in above terms.

(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)

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Mahendra Shankarrao Gadve And Ors vs Municipal Corporation Of City Of Pune … on 6 May, 2026

Bombay High Court