Change In Land Use Not Permissible Without Prior Permission From Statutory Authority: Chhattisgarh High Court
The Chhattisgarh High Court has made it clear that change in 'land use' is not permissible without obtaining prior permission from the statutory authority. The observation was made in the context of conversion of 'open space' to a community centre, without seeking prior permission from the Director under Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973.A bench comprising Chief Justice...
The Chhattisgarh High Court has made it clear that change in 'land use' is not permissible without obtaining prior permission from the statutory authority. The observation was made in the context of conversion of 'open space' to a community centre, without seeking prior permission from the Director under Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
A bench comprising Chief Justice Arup Kumar Goswami and Justice Parth Prateem Sahu observed,
"Where undisputedly the land subject matter of appeal is reserved as open land/ space in the layout, we are of the view that construction of Sarv Samaj Samudayik Bhavan on land reserved as open space is illegal. Respondent 3/ Municipal Corporation cannot use the land for any purpose other than the land reserved in layout plan without seeking prior permission of the competent authority."
The facts of the case are that the Respondent Raipur Development Authority came into an agreement with the petitioner cooperative society, to take over certain hectares of their land to implement a housing scheme called Katora Talab Scheme. In exchange, the society was to be allotted 36 residential plots in 3 blocks. Open areas were also left between these blocks, as per approved layout.
Later, the petitioner society discovered that the open land area was taken over by the Respondent Municipal Corporation for construction of "Sarv Samaj Samudayik Bhavan". Hence, the society approached the Court through a writ. The same was dismissed by the Single judge, hence the instant appeal.
Appellant argued that the open area of the land was left out as per agreement between the two parties and the layout plan was approved by the competent authority under the Adhiniyam, 1973. It was argued that change of use of land is not allowed without permission from the Director under the Adhiniyam, 1973. It was submitted that Section 26 of the Adhiniyam, 1973 provides that prior permission of Director is required for making changes in the sanctioned layout plan and further Section 292 of the Municipal Corporation Act, 1956 envisages bar upon the powers of the Municipal Corporation for making any change in the approved layout plan sanctioned by Director under the Adhiniyam, 1973.
Counsel for the Municipal Corporation submitted that there is no mention in the layout plan that the open space is reserved for development of garden. He further submitted that the area and land on which Respondent 3 initiated work of construction of Sarv Samaj Manglik Samudayik Bhavan is already transferred by Respondent 5/ RDA to Respondent 3/ Municipal Corporation. It was also submitted that Construction of Samudayik Bhavan is for the recreational activities and open space could be used for recreational activities.
Counsel for state submitted that after developing land by Respondent 5/ RDA as Katora Talab Scheme-16, it was handed over to Respondent 3/ Municipal Corporation. It is Respondent 3 who is maintaining drainage system, roads and other basic amenities.
Court, after perusal of evidence on record and after hearing both the parties, noted that section 26 of the Adhiniyam Act, 1973 prohibits change of use of any land or carry out any development of land without written permission of the Director, except some exceptional works. And it was clear from the evidence on record that no such written permission was taken from the director.
Court said that Municipality being one of the functionalities of the government is expected to act in accordance with the provisions of law governing the field to preserve the open places. Further, it was observed by court that leaving open space, park and play grounds in a development plan, is with a view to protect the residents of colonies from the ill-effects of urbanization.
"Constructing permanent building on open land ie., Samudayik Bhavan (community hall) is change of use of land, hence, under the provisions of law prior permission from the competent authority is mandatory," Court said
Coming to the question of whether the Respondent Municipality can be permitted to change the use of land, other than the layout plan without following due procedure of law, court said that it cannot be permitted to do so as the open land is adjoining two colonies and members of the appellant-society being residents of same vicinity will definitely be affected.
"In view of the aforementioned facts of the case where undisputedly the land subject matter of appeal is reserved as open land/ space in the layout and also considering the aforementioned rulings of Hon'ble Supreme Court, we are of the view that construction of Sarv Samaj Samudayik Bhavan on land reserved as open space is illegal. Respondent 3/ Municipal Corporation cannot use the land for any purpose other than the land reserved in layout plan without seeking prior permission of the competent authority." Court said.
In view of the above, the impugned order passed by the single judge was set aside and writ appeal was allowed.
Case Title: Priyadarshani Grah Nirman Sahkari Samiti Maryadit versus State of Chhattisgarh
Citation: 2022 LiveLaw (Chh) 76