The Court found it reasonable to allow a prayer made by the losing side (landowners and plot holders) to make a request to the panchayat to use another plot of land for the development of a swimming pool and game hall.

The Supreme Court on Friday used its plenary powers under Article 142 of the Constitution to protect 100-year-old trees on a plot of land in Shirdi that was tied up in a legal dispute between certain landowners, plot holders and a municipal council. [Shirdi Nagar Panchayat vs Kishor Sharad Borewake and ors]

The Court has acceded to an alternate prayer by the landowners and plot-holders, who ended up on the losing side of the case, to request the municipal council to use an alternate plot for the proposed development of a swimming pool and a game hall.

"The land which is reserved for ‘amenity space’ consists of trees which are aged about 100 years or more. They (plot-holders and landowners), therefore, made an offer that if the landowners are permitted to retain the said land, they are willing to transfer another piece of land of the same or near about the same area. We find the said request to be reasonable. We, therefore, permit the landowners/plot holders to make a representation to the Municipal Council … We pass the above directions under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older", the Court stated.

A bench of Justices BR Gavai and SVN Bhatti issued the direction while setting aside a July 2019 Bombay High Court order in the case.

The High Court had partially allowed a challenge to a government notification converting the area from a 'no-development' zone to a residential zone.

The Shirdi Nagar Panchayat (municipal council) challenged the High Court order, by which the authority was allowed only to develop the area for the limited purpose of the 'residential enjoyment' of the plot owners.

On the other hand, the municipal council sought to take over a part of the land in question to develop a swimming pool and an indoor game hall.

The council pointed out that as per a 2004 government notification, one of the conditions for converting the area into a residential zone was that a part of the land would be surrendered to the government as an open space and amenity space.

The Supreme Court found merit in some of the authority's contentions.

Among other aspects, the top court faulted the landowners for their delay in moving the High Court for relief. It noted that the landowners had moved the High Court 14 years after the government notification.

Further, the top court also noted that the landowners and plot holders had already taken advantage of the 2004 notification for the conversion of the land to a residential zone, which came with conditions to hand over a part of the land for developing public utility facilities.

Moreover, the judges found that they had moved the High Court only after they failed to secure relief in earlier rounds of civil litigation.

They were, thus, hit by the doctrines of election (a party cannot avail two remedies at the same time) and approbation and reprobation (taking contrary stances in the same case), the Supreme Court observed.

If authorities allow land or plot owners to develop land in exchange for a part of the land to be given free of cost for a public utility purpose, the same cannot be held to be illegal, the top court added.

Thus, the Supreme Court allowed the municipal council's appeal.

However, the land and plot holders were allowed to request the authority to use another piece of land to develop the proposed amenity facilities in order the protect the 100-year-old trees rooted in the disputed site.

"On such an application being made, the Municipal Council would consider the same in accordance with law," the Court ordered.

Advocate Sanjay Kharde appeared for the Shirdi Nagar Panchayat. Advocate Amol Gavali appeared for the landowners, and advocate Pradnya Talekar represented the plot holders.

Advocate Aaditya Aniruddha Pande represented the Maharashtra government.