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