Case: ANJUMAN E SHIATE ALI &amp; ANR Vs. GULMOHAR AREA SOCIETIES WELFARE GROUP &amp; ORS. ETC

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 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. 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 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 2 nd 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 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]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. yards20. 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 concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder21. 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 Act22. 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. 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 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 2 nd 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 the open spaces as required to be kept in the layout as per the 1967 DCR and 1991 DCR23. 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.