It is fairly well settled that in an
approved layout, the open spaces which are left, are to
be continued in that manner alone and no construction
can be permitted in such open spaces. The Development
Plan which was submitted in the year 1999, as per the
1991 DCR, will not divest the utility of certain plots
which are reserved for open spaces in the approved
layout. The appellants cannot plead that such a layout
was only temporary and as a stop gap arrangement, the
said two plots were shown as open spaces/garden and now
they be permitted to use for construction.
2020 [4] advocatemmmohan apex court cases 10
C.A. Nos.6216-6217 of 2019
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6216-6217 OF 2019
Anjuman E Shiate Ali & Anr. …Appellants
vs
Gulmohar Area Societies Welfare
Group & Ors. etc. ...Respondents
J U D G M E N T
R.SUBHASH REDDY,J.
1. Both these civil appeals arise out of a common
judgment dated 19.07.2017, passed by the High Court of
Judicature at Bombay, in writ petition Nos. 2476 of
2015 and 1130 of 2017, as such, they are heard together
and disposed of by this common Order. The said writ
petitions are filed by way of Public Interest
Litigation, for protecting two plots which are the
subject matter of the writ petition, originally left
C.A. Nos.6216-6217 of 2019
2
towards open spaces, in the layout, approved in the
year 1967.
2. The writ petition No. 2476 of 2015, was filed by
four petitioners. Petitioner No. 1, is a Trust,
registered under the Bombay Public Trust Act, 1950
petitioner No.2 is an Architect, involved in the
planning, design and maintenance of public open spaces
in the City of Mumbai, petitioner No.3 is a filmmaker
and petitioner No.4 is an NGO. So far as the second
petition is concerned, petitioner Nos. 2, 3 and 4 were
common as in the earlier petition. Petitioner No.1 is a
Co-operative Housing Society. The subject matter of the
2015 writ petition is a plot of land, ad-measuring
2,000 sq. meters (2500 square yards), forming part of
plot No.6, CTS No. 29 of Survey No.287 situated on 9th
Wireless Road, JVPD Scheme, Juhu, whereas the subject
matter of the 2017 writ petition, is a plot of land admeasuring 1687.18 sq. yards, forming part of old plot
No.3, CTS No.196-A, North-South, 10th Road, JVPD Scheme,
Juhu, Mumbai.
3. For the purpose of disposal of these appeals, we
refer to the parties, as arrayed in writ petition No.
1130 of 2017.
C.A. Nos.6216-6217 of 2019
3
4. The erstwhile Maharashtra Housing Board (MHB), now
Maharashtra Housing and Area Development Authority,
(MHADA), framed a scheme covering total land area of
5,80,000/- square yards, under Bombay Housing Board
Act, 1948. The said Scheme was called as JVPD Scheme.
5. The 4th respondent-Trust, representing interest of
Dawoodi Bohra Community, made a request to the Housing
Commissioner, to allot land, in JVPD Scheme. The then
Maharashtra Housing Board allotted four plots, bearing
plot Nos. 1, 3, 5 and 6 in the said Scheme, totally admeasuring 46,850 sq. yards, for allotment to the
individuals and housing societies. For dividing the
said plots bearing Nos. 1,3,5 and 6, the 4th respondent,
through its Architect, submitted a layout plan for
approval by the then Bombay Municipal Corporation (now
Municipal Corporation of Greater Mumbai) (MCGM). Bombay
Municipal Corporation has sanctioned the layout, in
which, an area ad-measuring 1687 sq.yards in plot No.3
and an area of 2500 sq.yards, in plot No.6, were shown
for the purpose of garden/open space. It is not in
dispute the remaining plots in the sanctioned layout,
were allotted to individuals and housing societies and
such plots are already utilized by making constructions
thereon. So far as plot No.6/11 is concerned, there
C.A. Nos.6216-6217 of 2019
4
were earlier proceedings in writ petition Nos.1964 of
2007 and 2151 of 2009. Initially, the said plot was
allotted by the State Government to one Parasmani Cooperative Housing Society and thereafter on 15.02.2007,
the possession of the said plot was given to the 4th
respondent-Anjuman E-Shiate Ali (appellant no.1 herein)
(for short, ‘Anjuman Trust’), a Public Trust. In the
said writ petition, there was a settlement between the
parties and both the petitions came to be disposed of,
in accordance with the consent terms, by order dated
10.11.2014. One of the petitioners, i.e., “Save Open
Spaces” (one of the respondents herein) approached the
High Court, seeking review of the Order, by filing
review petitions. The said review petitions are
disposed of, leaving open the issue as to whether such
plots can be utilized for construction or not and by
further observing that petitioners in review petitions
are not bound by the Order in writ petitions. When the
appellants were taking steps to use the said plot for
making construction, the writ petitioners approached
High Court in 2015 by way of a petition, claiming
various reliefs inter alia for a declaration that the
said plot forms part of mandatory open space in the
layout and no construction can be permitted on such
C.A. Nos.6216-6217 of 2019
5
plot. So far as plot bearing No.3/14 is concerned,
MHADA had granted license for beautification and
maintenance of the garden to the 1st petitioner-Society
(respondent no.1 herein). When the 4th respondentAnjuman Trust, approached the Chief Executive Officer
(CEO) of MHADA (2nd respondent), for registration of Cooperative Society, same was opposed by petitioner No.1.
The Chief Officer, MHB, vide Order dated 24.07.2013,
rejected the claim of Anjuman Trust. Aggrieved by the
Order passed by the Chief Officer, MHB, appeal was
preferred before CEO and Vice President of MHADA, which
appeal was opposed by petitioner No.1, on merits as
well as on the ground of limitation. The CEO and Vice
President, overruling the objections of petitioner
No.1, had passed an Order dated 21.03.2017, directing
lease of sub-plot No.3/14, in favour of beneficiaries,
chosen by Anjuman Trust, for the purpose of
construction. At that stage, 2nd writ petition was filed
in the year 2017, questioning the orders passed by the
CEO and Vice President of MHADA.
6. Primarily, it was the case of the writ petitioners
before the High Court that, as these two plots were
shown as open spaces/garden in the sanctioned layout,
in the year 1967, as such, they cannot be used for
C.A. Nos.6216-6217 of 2019
6
constructions. It was alleged that the Anjuman Trust,
taking advantage of development plan submitted in 1999
by MHADA, in which the area covered by these two plots
also, was shown as residential area, was trying to make
constructions. It was further alleged that the 2nd
respondent, in collusion with the Anjuman Trust, has
allotted the said plots to its nominees. It was pleaded
on behalf of the writ petitioners that the usage of the
area, as residential purpose, in the development plan
of 1999, has nothing to do with the reservations shown
in the approved layout of 1967. It was pleaded that as
per the Development Control Rules for Greater Bombay,
1967, 15 per cent of the area was to be shown as open
space, as such these two plots were shown/ reserved for
open space. The writ petitioners have also questioned
the authority of 2nd respondent for passing any Order,
on the application filed by the 4th respondent, for
granting lease in favour of its nominees.
7. The relief sought in the writ petitions was
opposed, mainly on the ground that in view of the
development plan prepared in the year 1999 by MHADA,
requisite area was already shown towards open spaces,
as such, it is not open to look into earlier documents.
It was the specific case of 4th respondent, that in the
C.A. Nos.6216-6217 of 2019
7
1999 development plan, as entire area covered by plot
No.3 and plot No.6 was shown as residential area, the
sub-plot nos. 14 and 11 in these plots, which were
shown earlier as reserved for open spaces/garden, can
very well be used for making constructions. It was the
case of the 4th respondent that open area which is shown
in the 1999 development plan, works out to 24.63% of
the total area and the same was in accordance with New
Development Control Regulations of 1991.
8. The relief sought in the writ petition was
opposed by the State Government as well as MHADA, on
the ground that as the said sub-divisioned plots were
shown as residential, in the development plan of 1999,
there is no impediment for making constructions on
these two plots.
9. The Division Bench of the High Court, by
considering rival claims of the parties, referring to
relevant provisions of Development Control Rules
(DCRs), and the provisions of Municipal Corporation
Act, has held that these two plots were shown as
reserved for garden purpose in the approved layout, in
the year 1967, as such, same cannot be used for
constructions. It is further held that, while preparing
the development plan for entire JVPD scheme in the year
C.A. Nos.6216-6217 of 2019
8
1999, the details of internal layouts, as sanctioned by
the BMC, were not shown. Further it is held that, the
usage, as mentioned for residential area in the
development plan, cannot be understood to mean that the
open spaces/garden, as approved in layout of 1967, can
be used for constructions. The High Court has also
recorded a finding that the 2nd respondent has grossly
erred in setting aside the decision of predecessor and
directed the Chief Architect to withdraw the revised
plans, submitted by MHADA to MCGM, vide Order dated
21.03.2017. Precisely, the High Court has observed that
the 2nd respondent had committed error in mixing the
issue of reservation, as provided in the development
plan and the open space/garden, which was required to
be left mandatorily, as per 1967 DCR and 1991 DCR. With
the aforesaid findings, the High Court has allowed the
writ petitions, and quashed the Order dated 21.03.2017,
passed by the 2nd respondent-MHADA and declared that the
aforesaid two plots are required to be maintained as
open spaces, as per the layout sanctioned in
proceedings No. BMC/MCGM/1967 and further declared that
no construction activity can be permitted on the
aforesaid plots. Consequently, the lease deed executed
C.A. Nos.6216-6217 of 2019
9
by 2nd respondent-MHADA, in favour of 5th respondentSociety, was also quashed.
10. We have heard Sri Vikas Singh, learned senior
counsel appearing for the appellants; Sri Shiraz P.
Rustomjee, learned senior counsel appearing for the
respondent nos.1-4; Mr. Ashish Wad, learned counsel
appearing on behalf of Municipal Corporation of Greater
Mumbai; and Mr. Sanjay Jain, learned Additional
Solicitor General appearing on behalf of Maharashtra
Housing & Area Development Authority.
11. Having heard the learned counsels on both sides,
we have perused the impugned order and other material
placed on record.
12. It is contended by learned senior counsel,
appearing for the appellants that the obligation to
reserve the open space/recreation ground (RG), is on
the owner of JVPD Scheme i.e. MHADA and not on
appellant no. 1-Anjuman Trust. The appellant no.1’s
Architect, while liaising with MCGM left two sub-plots
i.e. 3/14 and 6/11 temporarily because of MHADA’s
deficiency in reserving 15% of JVPD Scheme as open
space/garden, as per the 1967 DCR.
13. It is submitted that when the layout plan was
prepared for the entire area of more than 5,80,000
C.A. Nos.6216-6217 of 2019
10
square yards as per Regulation 23 of 1991 DCR, open
spaces shown in the approved layout of 1967, were not
shown as open spaces, inasmuch as the area covered by
the two plots in question was earmarked as residential
area and as such, there cannot be any hindrance for
making constructions on the land in question. It is
further submitted that on account of failure on the
part of the then MHB/MHADA, to prepare layout for subplots as per 1967 DCR, appellant No.1 was constrained
to prepare the private layout plan for the four big
plots at the insistence of BMC and was compelled to
leave 10% open space in such layout as a stop gap
arrangement. As the obligation to leave/reserve open
space in the entire area of JVPD Scheme is that of
MHADA, there is no reason or justification for
preventing constructions on the plots in question. It
is further submitted that about 25% of the land is
already shown for open spaces in the development Plan
as per 1991 DCR and the High Court has committed error
in recording a finding that the earlier two plots are
to be continued as open spaces/garden spaces.
14. On the other hand, learned counsel appearing for
respondent Nos. 1-4/ writ petitioners, has contended
that the approved layout of 1967, is binding on all the
C.A. Nos.6216-6217 of 2019
11
parties. It is submitted that the request of Anjuman-E
Shiate-Ali (Anjuman Trust) for allotment of plots was
accepted by the then Maharashtra Housing Board, on the
ground that Anjuman Trust should obtain the necessary
sanction of layout/sub-divided plots, for plot Nos. 1,
3, 5 and 6 from the MCGM. It is submitted that having
had the benefit of sub-division and utilization of all
the plots for the purpose of construction, it is not
open for the appellants to plead that, the two plots
reserved for open spaces/garden, can also be used for
construction. It is submitted that the development Plan
as per the 1991 DCR, broadly indicates the usage of
land in various zones, as such, the same is no reason
to claim for making constructions in the smaller
plots/sub-divided plots, which are left as open
space/garden in the approved layout. It is submitted
that under the Scheme of the Act and Rules/Regulations
made thereunder, there is no concept as temporary
layout, as claimed by the appellants.
15. It is submitted that the sub-plot Nos. 3/14 and
6/11 were offered voluntarily in the layout plan and
the same were legally mandated to be kept as open
space/garden by MCGM, as per Development Control
Regulation 39(a)(ii) of 1967. Further it is submitted
C.A. Nos.6216-6217 of 2019
12
that the obligation to obtain layout, as contemplated
under Section 302 of Mumbai Municipal Corporation Act,
1888 (‘MMC Act’) is not restricted in its application
to the owner of the land alone and, in fact, it applies
to every person who intends to sell, use any land or
permit the same to be used for building purposes or
divide the land into building plots. It is submitted
that Anjuman Trust is squarely covered by the ambit of
the aforesaid Section. It is submitted that the
development Plan of 1999 does not overtake the 1967
layout, which is approved by the Competent Authority,
sub-dividing the big plots into smaller residential
sites.
16. Sri Sanjay Jain, learned Additional Solicitor
General appearing MHADA, has submitted that in view of
the subsequent development plan of entire JVPD area,
covering an extent of more than 580000 sq. yards of
land, by which the sites in question were shown as
residential sites, there is no impediment for making
constructions on such land. It is submitted that the
High Court has committed error in directing the said
plots to be continued as open spaces/garden, as shown
in the layout of 1967.
C.A. Nos.6216-6217 of 2019
13
17. Having regard to contentions advanced by learned
counsels on both sides, the only issue which is
required to be considered is whether the two sub-plots
bearing Nos. 3/14 and 6/11, which are shown as open
spaces/garden in the approved layout of 1967, can be
allowed to be utilized for constructions, in view of
the subsequent development plan prepared by MHADA.
18. The Anjuman Trust, at first instance, had
approached the erstwhile MHB (presently MHADA) for
allotment of plots, for the purpose of individual
allottees and Co-operative Societies. On such request,
an extent of 46850 sq. yards of land was allotted to
the Anjuman Trust, which is a part of larger JVPD
Scheme. The Regulation No. 39 of 1967 DCR, reads as
under:
“39. Layouts or Sub-divisions.-
(a) Layouts or sub-division in residential
and commercial zones;
(i) When the land under development admeasures 3,000 sq. yds. or more the owner
of the land shall submit a proper layout or
sub-division of his entire independent
holding.
(ii) In any such layout or sub-division 15
per cent of the entire holding area shall
be reserved for a recreational space which
shall be as far as practicable in one
place.
C.A. Nos.6216-6217 of 2019
14
(iii) No such recreational space shall
admeasure less than 450 sq. yds.
(iv) The minimum dimension of such
recreational space shall in no case be less
than 25 feet and if the average width of
such recreational space is less than 80
feet the length thereof shall not exceed 2½
times the average width.”
19. For dividing the total land allotted for the use
of Dawoodi Bohra Community, covered by plot Nos. 1, 3,
5 and 6, admeasuring 46850 sq. yards, the Architect of
the appellants has prepared the layout and submitted it
for sanction to the Municipal Corporation. In such
layout, an area ad-measuring 1687 sq. yards in plot
No.3 and the area of 2500 sq. yards in plot No.6 were
shown as open spaces/garden. Since then, the said two
plots were kept open for being used for garden purpose
only. Subsequently, MHADA has prepared a development
plan for the entire JVPD scheme covering more than
5,80,000 sq. yards. The crux of the appellants’ case is
that in such development plan, the area covered by
these two small plots, which are shown as open
spaces/garden in the approved layout, was shown as
residential area, as such, they are entitled to make
constructions in such two plots also.
C.A. Nos.6216-6217 of 2019
15
20. As rightly held by the High Court, we are also of
the view that the two plots, which are shown as open
spaces/garden, in the approved layout, cannot be
allowed to be used for the purpose of construction. A
large area of 46,850 sq. yards was allotted for the
purpose of allotting small plots to the members of
Dawoodi Bohra Community. The entire area of 46,850 sq.
yards was covered by four big plots, bearing nos. 1, 3,
5 and 6. For utilizing such large area, by dividing the
same into smaller plots, the Architect of the Anjuman
Trust has prepared layout and submitted to competent
authority, showing these two small plots as open
spaces/garden. It is not in dispute, such layout is
approved and all the plots, except these two plots,
which are left towards open space/garden were utilized
for construction. Having had the benefit of such
approved layout, and after making constructions in all
the plots, except these two plots, which are left
towards open space/garden, the appellants cannot claim
that they are entitled to make constructions, based on
development plan prepared by MHADA, for the entire JVPD
Scheme, which covers more than 5,80,000 sq. yards. It
is the case of the appellants that such layout of 1967
was prepared as a temporary measure. There is no such
C.A. Nos.6216-6217 of 2019
16
concept as temporary layout in the Scheme of the MMC
Act and Regulations made thereunder.
21. During the relevant time, MMC Act, 1888 (Bombay
Act No.3 of 1888) was in force. To divide the land into
complete plots, statutory approvals were required for
the layout as per Section 302 and 302-A of the said
Act. As such, the open spaces, which were left towards
open space and garden in the approved layout were in
conformity with the Regulation No. 39 of 1967 DCR and
Sections 302 and 302A of MMC Act.
22. The development plan which is prepared by MHADA
for entire area of more than 5,80,000 sq. yards,
indicates broadly the usages in different zones. It is
well known that such development plans are prepared by
showing various zones such as residential, commercial,
industrial etc. Merely because in such development plan
prepared, in the area shown for residential purpose,
authorities have not indicated the open spaces/garden,
which were already left in the approved layout in such
residential area, appellants cannot claim the benefit
of making constructions in the plots which were left
towards open space/garden. It is fairly well settled
that the open spaces/garden left in an approved layout,
cannot be allowed for the purpose of constructions.
C.A. Nos.6216-6217 of 2019
17
However, it is to be noticed that if one wants to
utilize a big plot within the area of residential usage
as indicated in the development plan, it is mandatory
to sub-divide such big plots into smaller plots for
utilizing them for the purpose of construction. When
the layout is to be approved, certain percentage of
area is required to be left towards roads, open plots,
garden etc. The development Plan prepared by MHADA,
cannot be confused with the layout which is approved
confining to four big plots, on the application made by
the appellants. It is not necessary for only the owner
to apply for such layout. In any event, having applied
for layout which was approved and after utilizing the
59 plots out of total of 61 plots, it is not open for
the appellants to plead that it was not the obligation
of the appellants to submit layout. In the layout
sanctioned and obtained in the year 1967, the open
spaces were rightly reserved as provided under
Regulation 39 of 1967 DCR. Further, it is clear from
perusal of 1991 DCR that for different layouts or sub
divisions of different sizes in residential and
commercial zones, different areas of open spaces are
required to be provided. The development plan which was
submitted by MHADA and approved on 15.10.1999, is with
C.A. Nos.6216-6217 of 2019
18
regard to the entire area covered by JVPD scheme. It
appears that while submitting the development plan, the
details of internal layouts sanctioned by BMC were not
shown. The sub-division of bigger plots, as per the
layout sanctioned by BMC, were also not shown in such
development plan. Merely on such basis, the appellants
cannot claim that the sub-plots which are covered by
approved layout, left towards open spaces/garden, can
also be used for constructions. The Chief Officer, in
his communication, has made it clear that the mandatory
open spaces in the approved plan are to be leased out
to neighbouring societies for recreation purposes.
Further, communication made by MHADA also shows that
they have sent the proposal to MCGM for rectification
of development plan, submitted in the year 1999, for
showing these two plots as garden plot. It is totally
erroneous on the part of 2nd respondent-MHADA in passing
the order which is impugned in the writ petition, by
recording a finding that Anjuman Trust has complete and
absolute right in respect of sub-plot No.14 of Plot
No.3. It is clear from the material placed on record
that the authorities have mixed up the issue of
reservation/usage as shown in the development plan and
C.A. Nos.6216-6217 of 2019
19
the open spaces as required to be kept in the layout as
per the 1967 DCR and 1991 DCR.
23. It is also to be noticed that the open spaces are
required to be left for an approval of layout or for
the purpose of creating lung space for the owners of
other plots where constructions are permitted. The 4
plots bearing Nos. 1, 3, 5 and 6, were sub-divided at
the instance of the appellant-Society in its entirety
and approval was taken for dividing such land into 61
plots. It is not open to claim for construction in the
two plots which are reserved for open spaces/garden
spaces also. It is fairly well settled that in an
approved layout, the open spaces which are left, are to
be continued in that manner alone and no construction
can be permitted in such open spaces. The Development
Plan which was submitted in the year 1999, as per the
1991 DCR, will not divest the utility of certain plots
which are reserved for open spaces in the approved
layout. The appellants cannot plead that such a layout
was only temporary and as a stop gap arrangement, the
said two plots were shown as open spaces/garden and now
they be permitted to use for construction.
24. For the aforesaid reasons and in view of the
reasons assigned by the High Court in the judgment
C.A. Nos.6216-6217 of 2019
20
under appeal, we are of the view that there is no merit
in these appeals, accordingly, these appeals are
dismissed, with no order as to costs.
……………………………………………………………………J
(MOHAN M. SHANTANAGOUDAR)
……………………………………………………………………J
(R. SUBHASH REDDY)
NEW DELHI;
April 17, 2020
2020 [4] advocatemmmohan apex court cases 10
C.A. Nos.6216-6217 of 2019
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6216-6217 OF 2019
Anjuman E Shiate Ali & Anr. …Appellants
vs
Gulmohar Area Societies Welfare
Group & Ors. etc. ...Respondents
J U D G M E N T
R.SUBHASH REDDY,J.
1. Both these civil appeals arise out of a common
judgment dated 19.07.2017, passed by the High Court of
Judicature at Bombay, in writ petition Nos. 2476 of
2015 and 1130 of 2017, as such, they are heard together
and disposed of by this common Order. The said writ
petitions are filed by way of Public Interest
Litigation, for protecting two plots which are the
subject matter of the writ petition, originally left
C.A. Nos.6216-6217 of 2019
2
towards open spaces, in the layout, approved in the
year 1967.
2. The writ petition No. 2476 of 2015, was filed by
four petitioners. Petitioner No. 1, is a Trust,
registered under the Bombay Public Trust Act, 1950
petitioner No.2 is an Architect, involved in the
planning, design and maintenance of public open spaces
in the City of Mumbai, petitioner No.3 is a filmmaker
and petitioner No.4 is an NGO. So far as the second
petition is concerned, petitioner Nos. 2, 3 and 4 were
common as in the earlier petition. Petitioner No.1 is a
Co-operative Housing Society. The subject matter of the
2015 writ petition is a plot of land, ad-measuring
2,000 sq. meters (2500 square yards), forming part of
plot No.6, CTS No. 29 of Survey No.287 situated on 9th
Wireless Road, JVPD Scheme, Juhu, whereas the subject
matter of the 2017 writ petition, is a plot of land admeasuring 1687.18 sq. yards, forming part of old plot
No.3, CTS No.196-A, North-South, 10th Road, JVPD Scheme,
Juhu, Mumbai.
3. For the purpose of disposal of these appeals, we
refer to the parties, as arrayed in writ petition No.
1130 of 2017.
C.A. Nos.6216-6217 of 2019
3
4. The erstwhile Maharashtra Housing Board (MHB), now
Maharashtra Housing and Area Development Authority,
(MHADA), framed a scheme covering total land area of
5,80,000/- square yards, under Bombay Housing Board
Act, 1948. The said Scheme was called as JVPD Scheme.
5. The 4th respondent-Trust, representing interest of
Dawoodi Bohra Community, made a request to the Housing
Commissioner, to allot land, in JVPD Scheme. The then
Maharashtra Housing Board allotted four plots, bearing
plot Nos. 1, 3, 5 and 6 in the said Scheme, totally admeasuring 46,850 sq. yards, for allotment to the
individuals and housing societies. For dividing the
said plots bearing Nos. 1,3,5 and 6, the 4th respondent,
through its Architect, submitted a layout plan for
approval by the then Bombay Municipal Corporation (now
Municipal Corporation of Greater Mumbai) (MCGM). Bombay
Municipal Corporation has sanctioned the layout, in
which, an area ad-measuring 1687 sq.yards in plot No.3
and an area of 2500 sq.yards, in plot No.6, were shown
for the purpose of garden/open space. It is not in
dispute the remaining plots in the sanctioned layout,
were allotted to individuals and housing societies and
such plots are already utilized by making constructions
thereon. So far as plot No.6/11 is concerned, there
C.A. Nos.6216-6217 of 2019
4
were earlier proceedings in writ petition Nos.1964 of
2007 and 2151 of 2009. Initially, the said plot was
allotted by the State Government to one Parasmani Cooperative Housing Society and thereafter on 15.02.2007,
the possession of the said plot was given to the 4th
respondent-Anjuman E-Shiate Ali (appellant no.1 herein)
(for short, ‘Anjuman Trust’), a Public Trust. In the
said writ petition, there was a settlement between the
parties and both the petitions came to be disposed of,
in accordance with the consent terms, by order dated
10.11.2014. One of the petitioners, i.e., “Save Open
Spaces” (one of the respondents herein) approached the
High Court, seeking review of the Order, by filing
review petitions. The said review petitions are
disposed of, leaving open the issue as to whether such
plots can be utilized for construction or not and by
further observing that petitioners in review petitions
are not bound by the Order in writ petitions. When the
appellants were taking steps to use the said plot for
making construction, the writ petitioners approached
High Court in 2015 by way of a petition, claiming
various reliefs inter alia for a declaration that the
said plot forms part of mandatory open space in the
layout and no construction can be permitted on such
C.A. Nos.6216-6217 of 2019
5
plot. So far as plot bearing No.3/14 is concerned,
MHADA had granted license for beautification and
maintenance of the garden to the 1st petitioner-Society
(respondent no.1 herein). When the 4th respondentAnjuman Trust, approached the Chief Executive Officer
(CEO) of MHADA (2nd respondent), for registration of Cooperative Society, same was opposed by petitioner No.1.
The Chief Officer, MHB, vide Order dated 24.07.2013,
rejected the claim of Anjuman Trust. Aggrieved by the
Order passed by the Chief Officer, MHB, appeal was
preferred before CEO and Vice President of MHADA, which
appeal was opposed by petitioner No.1, on merits as
well as on the ground of limitation. The CEO and Vice
President, overruling the objections of petitioner
No.1, had passed an Order dated 21.03.2017, directing
lease of sub-plot No.3/14, in favour of beneficiaries,
chosen by Anjuman Trust, for the purpose of
construction. At that stage, 2nd writ petition was filed
in the year 2017, questioning the orders passed by the
CEO and Vice President of MHADA.
6. Primarily, it was the case of the writ petitioners
before the High Court that, as these two plots were
shown as open spaces/garden in the sanctioned layout,
in the year 1967, as such, they cannot be used for
C.A. Nos.6216-6217 of 2019
6
constructions. It was alleged that the Anjuman Trust,
taking advantage of development plan submitted in 1999
by MHADA, in which the area covered by these two plots
also, was shown as residential area, was trying to make
constructions. It was further alleged that the 2nd
respondent, in collusion with the Anjuman Trust, has
allotted the said plots to its nominees. It was pleaded
on behalf of the writ petitioners that the usage of the
area, as residential purpose, in the development plan
of 1999, has nothing to do with the reservations shown
in the approved layout of 1967. It was pleaded that as
per the Development Control Rules for Greater Bombay,
1967, 15 per cent of the area was to be shown as open
space, as such these two plots were shown/ reserved for
open space. The writ petitioners have also questioned
the authority of 2nd respondent for passing any Order,
on the application filed by the 4th respondent, for
granting lease in favour of its nominees.
7. The relief sought in the writ petitions was
opposed, mainly on the ground that in view of the
development plan prepared in the year 1999 by MHADA,
requisite area was already shown towards open spaces,
as such, it is not open to look into earlier documents.
It was the specific case of 4th respondent, that in the
C.A. Nos.6216-6217 of 2019
7
1999 development plan, as entire area covered by plot
No.3 and plot No.6 was shown as residential area, the
sub-plot nos. 14 and 11 in these plots, which were
shown earlier as reserved for open spaces/garden, can
very well be used for making constructions. It was the
case of the 4th respondent that open area which is shown
in the 1999 development plan, works out to 24.63% of
the total area and the same was in accordance with New
Development Control Regulations of 1991.
8. The relief sought in the writ petition was
opposed by the State Government as well as MHADA, on
the ground that as the said sub-divisioned plots were
shown as residential, in the development plan of 1999,
there is no impediment for making constructions on
these two plots.
9. The Division Bench of the High Court, by
considering rival claims of the parties, referring to
relevant provisions of Development Control Rules
(DCRs), and the provisions of Municipal Corporation
Act, has held that these two plots were shown as
reserved for garden purpose in the approved layout, in
the year 1967, as such, same cannot be used for
constructions. It is further held that, while preparing
the development plan for entire JVPD scheme in the year
C.A. Nos.6216-6217 of 2019
8
1999, the details of internal layouts, as sanctioned by
the BMC, were not shown. Further it is held that, the
usage, as mentioned for residential area in the
development plan, cannot be understood to mean that the
open spaces/garden, as approved in layout of 1967, can
be used for constructions. The High Court has also
recorded a finding that the 2nd respondent has grossly
erred in setting aside the decision of predecessor and
directed the Chief Architect to withdraw the revised
plans, submitted by MHADA to MCGM, vide Order dated
21.03.2017. Precisely, the High Court has observed that
the 2nd respondent had committed error in mixing the
issue of reservation, as provided in the development
plan and the open space/garden, which was required to
be left mandatorily, as per 1967 DCR and 1991 DCR. With
the aforesaid findings, the High Court has allowed the
writ petitions, and quashed the Order dated 21.03.2017,
passed by the 2nd respondent-MHADA and declared that the
aforesaid two plots are required to be maintained as
open spaces, as per the layout sanctioned in
proceedings No. BMC/MCGM/1967 and further declared that
no construction activity can be permitted on the
aforesaid plots. Consequently, the lease deed executed
C.A. Nos.6216-6217 of 2019
9
by 2nd respondent-MHADA, in favour of 5th respondentSociety, was also quashed.
10. We have heard Sri Vikas Singh, learned senior
counsel appearing for the appellants; Sri Shiraz P.
Rustomjee, learned senior counsel appearing for the
respondent nos.1-4; Mr. Ashish Wad, learned counsel
appearing on behalf of Municipal Corporation of Greater
Mumbai; and Mr. Sanjay Jain, learned Additional
Solicitor General appearing on behalf of Maharashtra
Housing & Area Development Authority.
11. Having heard the learned counsels on both sides,
we have perused the impugned order and other material
placed on record.
12. It is contended by learned senior counsel,
appearing for the appellants that the obligation to
reserve the open space/recreation ground (RG), is on
the owner of JVPD Scheme i.e. MHADA and not on
appellant no. 1-Anjuman Trust. The appellant no.1’s
Architect, while liaising with MCGM left two sub-plots
i.e. 3/14 and 6/11 temporarily because of MHADA’s
deficiency in reserving 15% of JVPD Scheme as open
space/garden, as per the 1967 DCR.
13. It is submitted that when the layout plan was
prepared for the entire area of more than 5,80,000
C.A. Nos.6216-6217 of 2019
10
square yards as per Regulation 23 of 1991 DCR, open
spaces shown in the approved layout of 1967, were not
shown as open spaces, inasmuch as the area covered by
the two plots in question was earmarked as residential
area and as such, there cannot be any hindrance for
making constructions on the land in question. It is
further submitted that on account of failure on the
part of the then MHB/MHADA, to prepare layout for subplots as per 1967 DCR, appellant No.1 was constrained
to prepare the private layout plan for the four big
plots at the insistence of BMC and was compelled to
leave 10% open space in such layout as a stop gap
arrangement. As the obligation to leave/reserve open
space in the entire area of JVPD Scheme is that of
MHADA, there is no reason or justification for
preventing constructions on the plots in question. It
is further submitted that about 25% of the land is
already shown for open spaces in the development Plan
as per 1991 DCR and the High Court has committed error
in recording a finding that the earlier two plots are
to be continued as open spaces/garden spaces.
14. On the other hand, learned counsel appearing for
respondent Nos. 1-4/ writ petitioners, has contended
that the approved layout of 1967, is binding on all the
C.A. Nos.6216-6217 of 2019
11
parties. It is submitted that the request of Anjuman-E
Shiate-Ali (Anjuman Trust) for allotment of plots was
accepted by the then Maharashtra Housing Board, on the
ground that Anjuman Trust should obtain the necessary
sanction of layout/sub-divided plots, for plot Nos. 1,
3, 5 and 6 from the MCGM. It is submitted that having
had the benefit of sub-division and utilization of all
the plots for the purpose of construction, it is not
open for the appellants to plead that, the two plots
reserved for open spaces/garden, can also be used for
construction. It is submitted that the development Plan
as per the 1991 DCR, broadly indicates the usage of
land in various zones, as such, the same is no reason
to claim for making constructions in the smaller
plots/sub-divided plots, which are left as open
space/garden in the approved layout. It is submitted
that under the Scheme of the Act and Rules/Regulations
made thereunder, there is no concept as temporary
layout, as claimed by the appellants.
15. It is submitted that the sub-plot Nos. 3/14 and
6/11 were offered voluntarily in the layout plan and
the same were legally mandated to be kept as open
space/garden by MCGM, as per Development Control
Regulation 39(a)(ii) of 1967. Further it is submitted
C.A. Nos.6216-6217 of 2019
12
that the obligation to obtain layout, as contemplated
under Section 302 of Mumbai Municipal Corporation Act,
1888 (‘MMC Act’) is not restricted in its application
to the owner of the land alone and, in fact, it applies
to every person who intends to sell, use any land or
permit the same to be used for building purposes or
divide the land into building plots. It is submitted
that Anjuman Trust is squarely covered by the ambit of
the aforesaid Section. It is submitted that the
development Plan of 1999 does not overtake the 1967
layout, which is approved by the Competent Authority,
sub-dividing the big plots into smaller residential
sites.
16. Sri Sanjay Jain, learned Additional Solicitor
General appearing MHADA, has submitted that in view of
the subsequent development plan of entire JVPD area,
covering an extent of more than 580000 sq. yards of
land, by which the sites in question were shown as
residential sites, there is no impediment for making
constructions on such land. It is submitted that the
High Court has committed error in directing the said
plots to be continued as open spaces/garden, as shown
in the layout of 1967.
C.A. Nos.6216-6217 of 2019
13
17. Having regard to contentions advanced by learned
counsels on both sides, the only issue which is
required to be considered is whether the two sub-plots
bearing Nos. 3/14 and 6/11, which are shown as open
spaces/garden in the approved layout of 1967, can be
allowed to be utilized for constructions, in view of
the subsequent development plan prepared by MHADA.
18. The Anjuman Trust, at first instance, had
approached the erstwhile MHB (presently MHADA) for
allotment of plots, for the purpose of individual
allottees and Co-operative Societies. On such request,
an extent of 46850 sq. yards of land was allotted to
the Anjuman Trust, which is a part of larger JVPD
Scheme. The Regulation No. 39 of 1967 DCR, reads as
under:
“39. Layouts or Sub-divisions.-
(a) Layouts or sub-division in residential
and commercial zones;
(i) When the land under development admeasures 3,000 sq. yds. or more the owner
of the land shall submit a proper layout or
sub-division of his entire independent
holding.
(ii) In any such layout or sub-division 15
per cent of the entire holding area shall
be reserved for a recreational space which
shall be as far as practicable in one
place.
C.A. Nos.6216-6217 of 2019
14
(iii) No such recreational space shall
admeasure less than 450 sq. yds.
(iv) The minimum dimension of such
recreational space shall in no case be less
than 25 feet and if the average width of
such recreational space is less than 80
feet the length thereof shall not exceed 2½
times the average width.”
19. For dividing the total land allotted for the use
of Dawoodi Bohra Community, covered by plot Nos. 1, 3,
5 and 6, admeasuring 46850 sq. yards, the Architect of
the appellants has prepared the layout and submitted it
for sanction to the Municipal Corporation. In such
layout, an area ad-measuring 1687 sq. yards in plot
No.3 and the area of 2500 sq. yards in plot No.6 were
shown as open spaces/garden. Since then, the said two
plots were kept open for being used for garden purpose
only. Subsequently, MHADA has prepared a development
plan for the entire JVPD scheme covering more than
5,80,000 sq. yards. The crux of the appellants’ case is
that in such development plan, the area covered by
these two small plots, which are shown as open
spaces/garden in the approved layout, was shown as
residential area, as such, they are entitled to make
constructions in such two plots also.
C.A. Nos.6216-6217 of 2019
15
20. As rightly held by the High Court, we are also of
the view that the two plots, which are shown as open
spaces/garden, in the approved layout, cannot be
allowed to be used for the purpose of construction. A
large area of 46,850 sq. yards was allotted for the
purpose of allotting small plots to the members of
Dawoodi Bohra Community. The entire area of 46,850 sq.
yards was covered by four big plots, bearing nos. 1, 3,
5 and 6. For utilizing such large area, by dividing the
same into smaller plots, the Architect of the Anjuman
Trust has prepared layout and submitted to competent
authority, showing these two small plots as open
spaces/garden. It is not in dispute, such layout is
approved and all the plots, except these two plots,
which are left towards open space/garden were utilized
for construction. Having had the benefit of such
approved layout, and after making constructions in all
the plots, except these two plots, which are left
towards open space/garden, the appellants cannot claim
that they are entitled to make constructions, based on
development plan prepared by MHADA, for the entire JVPD
Scheme, which covers more than 5,80,000 sq. yards. It
is the case of the appellants that such layout of 1967
was prepared as a temporary measure. There is no such
C.A. Nos.6216-6217 of 2019
16
concept as temporary layout in the Scheme of the MMC
Act and Regulations made thereunder.
21. During the relevant time, MMC Act, 1888 (Bombay
Act No.3 of 1888) was in force. To divide the land into
complete plots, statutory approvals were required for
the layout as per Section 302 and 302-A of the said
Act. As such, the open spaces, which were left towards
open space and garden in the approved layout were in
conformity with the Regulation No. 39 of 1967 DCR and
Sections 302 and 302A of MMC Act.
22. The development plan which is prepared by MHADA
for entire area of more than 5,80,000 sq. yards,
indicates broadly the usages in different zones. It is
well known that such development plans are prepared by
showing various zones such as residential, commercial,
industrial etc. Merely because in such development plan
prepared, in the area shown for residential purpose,
authorities have not indicated the open spaces/garden,
which were already left in the approved layout in such
residential area, appellants cannot claim the benefit
of making constructions in the plots which were left
towards open space/garden. It is fairly well settled
that the open spaces/garden left in an approved layout,
cannot be allowed for the purpose of constructions.
C.A. Nos.6216-6217 of 2019
17
However, it is to be noticed that if one wants to
utilize a big plot within the area of residential usage
as indicated in the development plan, it is mandatory
to sub-divide such big plots into smaller plots for
utilizing them for the purpose of construction. When
the layout is to be approved, certain percentage of
area is required to be left towards roads, open plots,
garden etc. The development Plan prepared by MHADA,
cannot be confused with the layout which is approved
confining to four big plots, on the application made by
the appellants. It is not necessary for only the owner
to apply for such layout. In any event, having applied
for layout which was approved and after utilizing the
59 plots out of total of 61 plots, it is not open for
the appellants to plead that it was not the obligation
of the appellants to submit layout. In the layout
sanctioned and obtained in the year 1967, the open
spaces were rightly reserved as provided under
Regulation 39 of 1967 DCR. Further, it is clear from
perusal of 1991 DCR that for different layouts or sub
divisions of different sizes in residential and
commercial zones, different areas of open spaces are
required to be provided. The development plan which was
submitted by MHADA and approved on 15.10.1999, is with
C.A. Nos.6216-6217 of 2019
18
regard to the entire area covered by JVPD scheme. It
appears that while submitting the development plan, the
details of internal layouts sanctioned by BMC were not
shown. The sub-division of bigger plots, as per the
layout sanctioned by BMC, were also not shown in such
development plan. Merely on such basis, the appellants
cannot claim that the sub-plots which are covered by
approved layout, left towards open spaces/garden, can
also be used for constructions. The Chief Officer, in
his communication, has made it clear that the mandatory
open spaces in the approved plan are to be leased out
to neighbouring societies for recreation purposes.
Further, communication made by MHADA also shows that
they have sent the proposal to MCGM for rectification
of development plan, submitted in the year 1999, for
showing these two plots as garden plot. It is totally
erroneous on the part of 2nd respondent-MHADA in passing
the order which is impugned in the writ petition, by
recording a finding that Anjuman Trust has complete and
absolute right in respect of sub-plot No.14 of Plot
No.3. It is clear from the material placed on record
that the authorities have mixed up the issue of
reservation/usage as shown in the development plan and
C.A. Nos.6216-6217 of 2019
19
the open spaces as required to be kept in the layout as
per the 1967 DCR and 1991 DCR.
23. It is also to be noticed that the open spaces are
required to be left for an approval of layout or for
the purpose of creating lung space for the owners of
other plots where constructions are permitted. The 4
plots bearing Nos. 1, 3, 5 and 6, were sub-divided at
the instance of the appellant-Society in its entirety
and approval was taken for dividing such land into 61
plots. It is not open to claim for construction in the
two plots which are reserved for open spaces/garden
spaces also. It is fairly well settled that in an
approved layout, the open spaces which are left, are to
be continued in that manner alone and no construction
can be permitted in such open spaces. The Development
Plan which was submitted in the year 1999, as per the
1991 DCR, will not divest the utility of certain plots
which are reserved for open spaces in the approved
layout. The appellants cannot plead that such a layout
was only temporary and as a stop gap arrangement, the
said two plots were shown as open spaces/garden and now
they be permitted to use for construction.
24. For the aforesaid reasons and in view of the
reasons assigned by the High Court in the judgment
C.A. Nos.6216-6217 of 2019
20
under appeal, we are of the view that there is no merit
in these appeals, accordingly, these appeals are
dismissed, with no order as to costs.
……………………………………………………………………J
(MOHAN M. SHANTANAGOUDAR)
……………………………………………………………………J
(R. SUBHASH REDDY)
NEW DELHI;
April 17, 2020
