Validity of Rule 13.3.1.5 of the Development Control Rules of Pune City
Open Spaces in the Sanctioned Layouts and Acquisition for nominal compensation of Re.1 for transferring the open spaces to Pune Municipal Corporation.
‘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 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.’
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.
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.
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
Judgment dated 6.5.2026 of the High Court of Bombay in Writ Petition No.5838 of 2010 of Pune Ex-Servicemen Cooperative Housing Society Ltd Vs. The Municipal Corporation of City of Pune and others with connected writ petitions.
