• Open space illegal alloted to one of the caste community

I filed a writ petition in the high court of hyderabad in December, 2014 , on illegal allotment of open space in approved layout to one of the local caste community in the year 2000 by municipal council resolution of our town . The said community constructed function hall / community hall and renting to marriages and other functions for rent purpose this is illegal .  i challenged this allotment to the private caste community . kindly let me know how the case position in accordance of law .

i want to know whether they have the right to have the open space by allotment 
want to know the future judgement in this case.
Asked 1 year ago in Civil Law from Hyderabad, Telangana
1) in response to your writ petition has any reply been filed ?

2) if the open space has been reserved for garden , recreation ground etc said open space can not be allotted to local caste community for construction of community hall for marriages 

3) you have to check development plan of Hyderabad in this regard 
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
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(i) In Virender Gaur and others Vs. State of Haryana and others, reported in 1998 (I) CTC 143, the Supreme Court has held as follows:-

"8. Section 203 of the Act enjoins the Municipality to frame the Scheme Providing environmental and sanitary amenities and obtain sanction from the competent authority to provide, preserve and protect parks, open lands, sanitation roads, sewage, etc. to maintain ecological balance with hygienic atmosphere not only to the present residents in the locality but also to the future generation. The lands vested in s. 61(c) of the Act should be used for the purposes envisaged therein. We do not agree with the appellants for non-user of open land by the Municipality for more than two decades, the land stood divested from the Municipality and vested in them. Yet the Municipality has to use the land for the purposes envisaged in the Scheme read with those found in s. 61 unless unavoidable compelling public purpose require change of user. Take a case where in the zonal plan certain land is marked out and reserved for park or recreational purpose. It cannot be acquired or allotted for building purpose though housing is public purpose.

9. Section 66 gives power to the Municipality to transfer any of the lands vested in it to the Government in accordance with the provisions of the Act but they will be subject to s. 64 thereof and other related purposes. Section 250 of the Act reserves general power in the Government and it provides that the State Government may issue directions to any Committee for carrying out the purposes of the Act and, in particular, (a) with regard to various uses to which any land within municipal area may be put (e) adoption of development measures and measures for promotion of public safety, health, convenience and welfare; and (f) sanitation and cleanliness etc. Therefore, the Government, though, have power to give directions that power should be used only to effectuate and further goals of the approved Scheme, zonal plans etc. and the land vested under the Scheme or reserved under the plan would not be directed to be used for any other public purposes within the area envisaged thereunder unless grave compelling purpose of general public demands/requires issuance of such directions.

10. The question is whether the Government can lease the land to the private trust like PSS-4th respondent in the appeal. It is seen that the land is vested in the municipality and the Government have no right and title or interest therein. They have no power to give either by lease to PSS or deal with the property as if the land vested in it. Therefore, the grant to lease by the Government in favour of PSS is clearly without authority of law and jurisdiction. This Court has considered the power of the Government to grant lease or issue directions to the Corporation to lease out open land reserved for public use to private trust to establish hospital and explained the context in which the power could be exercised when the land was reserved for town scheme or city scheme in Bangalore Medical Trust v. B.S. Muddappa , JT 1991 (3) SC 172 : (1991) 4 SCC 54. The facts therein were that a site near the Sankey's Tank in Rajamahal Vilas Extension in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore improvement Act, 1945. Pursuant to the orders of the State Government dated May 27, 1976 and June 11, 1976 and by its resolution dated July 14, 1976, the Bangalore Development Authority allotted the open space in favour of the appellant, a Medical Trust, for the purpose of constructing a hospital. That allotment was challenged by the respondents in the locality. This Court considered the power of the Government for granting assignment or directions to lease out in favour of the private trust and consequential effect emanating from the user of the land reserved for public purpose or to any other purpose. In para 23 of the judgment, this Court held that the Scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from ill-effects of urbanisation. It meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, ventilation and fresh air. The statutory object is to promote the healthy growth and development of the city of Bangalore and the areas adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent but only an elucidation or affirmation of the same. In paragraph 25 of the judgment, this Court further held that the reservation of open spaces for parks and playgrounds are universally recognised as a legitimate exercise of statutory power nationally related to the protection of the residents of the locality from the ill-effects of urbanisation. The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The residents of the locality, such as the writ petitioners, are naturally aggrieved by the impugned orders and they have, therefore, the necessary locus standi. The action of the Government and the BDA was held to be inconsistent with and contrary to the legislative intent to safeguard the health, safety and general welfare of the people of the locality. These orders evidence a colourable exercise of power and are opposed to the statutory scheme. The ratio therein squarely applies to the facts in this case.
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
in SHEIT RAM DEAD BY L.RS. v. MUNICIPAL CORPORATION OF DELHI, the Supreme Court held that reserving any of the site for street, open space, park, school, etc., in the lay out plan was for public purpose and it shall be used only by the public. The effect of such reservation is that the owner ceases to be the legal owner of the land and he owns the land only for the benefit of the public in general. The Supreme Court further held that it would create an obligation in the nature of a Trust which would preclude the owner from transferring or selling the interest in the property. I had an occasion to follow the said judgment in KRISHNA NAGAR RESIDENTS' WELFARE ASSOCIATION v. DIRECTOR OF TOWN AND COUNTRY PLANNING (2001 (3) L.W., 828). In that case, there was an attempt to convert the area earmarked for park into a community hall under the exclusive control of an individual and it was held that the attempt to convert the property as belonging to a private individual was not permissible. Therefore, the law laid down by the Supreme Court is that common places as earmarked in the plan has to remain only common.
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
If the space was reserved for recreational activities or for greenery etc purposes, then the same can be alloted to any community for development of the same. Has any response filed by the municipal council or others in your writ petition?
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
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1. You have filed the petition in the High Court which should now be taken to a logical conclusion.

2. The space has been illegally allotted according to you. Unless the commercial use is permitted it cannot be done. 

3. Nobody, not even the judge, can tell you his future judgment. 
Ashish Davessar
Advocate, Jaipur
18255 Answers
450 Consultations
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1. The guidelines followed by the said Municipality for making such allotments is required to be seen for further advice in this regard properly,

2. At what stage is the W.P. now? It should have been decided by this time. Ask your lawyer to make a mention for early hearing,

3. If it is contrary to the basic guidelines, then the said allotment is illegal. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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Since you have already filed  the case you may have to wait for the court verdict. 
Nothing can be predicted about the judgement and in whose favor. 
From your contents the allotment to a particular community b the authorities is illegal and not admissible in  law. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
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