ANJUMAN E SHIATE ALI & ANR. versus GULMOHAR AREA SOCIETIES WELFARE GROUP & ORS. ETC. on 17 April 2020

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SUPREME COURT REPORTS[2020] 4 S.C.R. 706

[2020] 4 S.C.R.

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ANJUMAN E SHIATE ALI & ANR.

v.

GULMOHAR AREA SOCIETIES WELFARE GROUP& ORS. ETC.

(Civil Appeal Nos. 6216-6217 of 2019)

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APRIL 17, 2020

[MOHAN M. SHANTANAGOUDARAND R. SUBHASH REDDY, JJ.]

Urban Development:C

Town Planning - Allotment of area of 46,850 sq. yards forresidential purpose out of total area 5,80,000 sq. yards allocatedfor development Scheme prepared by Development Authority –Layout prepared by the allottee for the area 46,850 sq. yard, bydividing the same into smaller plots and leaving certain area asDopen space, was approved by competent authority – In subsequentplan made by Development Authority for the entire developmentScheme, the areas left as open spaces in allottee’s layout plan, wasshown as residential area – Consequently construction allowed byDevelopment Authority on the area initially left as open space –EWrit petition (PIL) on the plea that the open spaces sanctioned inthe layout plan cannot be used for construction – High Courtallowed the petition – Appeal to Supreme Court – Held: The arealeft towards open spaces in the approved layout, were in conformitywith the Regulation No. 39 of 1967 DCR and ss. 302 and 302A ofMunicipal Corporation Act – In an approved layout, areas left asFopen spaces are to be continued in that manner alone and noconstruction can be permitted on such open spaces – Thedevelopment plan as per 1991 DCR will not divest utility of plotsreserved for open spaces – Therefore, the open spaces in theapproved layout cannot be allowed to be used for the purpose ofGconstruction – Maharashtra Municipal Corporation Act, 1888 –ss. 302 and 302 A.

Dismissing the appeals, the Court

HELD: 1. The two plots, which are shown as open spaces/garden, in the approved layout, cannot be allowed to be used forH

the purpose of construction. A large area of 46,850 sq. yards wasallotted to the Trust for the purpose of allotting small plots. Theentire 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 dividingthe same into smaller plots, the Architect of the Trust has preparedlayout and submitted to competent authority, showing these twosmall plots as open spaces/garden. It is not in dispute, such layoutis approved and all the plots, except these two plots, which areleft towards open space/garden were utilized for construction.Having had the benefit of such approved layout, and after makingconstructions in all the plots, except these two plots, which areleft towards open space/garden, the appellants cannot claim thatthey are entitled to make constructions, based on developmentplan prepared by MHADA, for the entire JVPD Scheme, whichcovers more than 5,80,000 sq. yards. [Para 20][716-D-G]

2. The development plan which is prepared by MHADAfor entire area of more than 5,80,000 sq. yards, indicates broadlythe usages in different zones. It is well known that suchdevelopment plans are prepared by showing various zones suchas residential, commercial, industrial etc. Merely because in suchdevelopment plan prepared, in the area shown for residentialpurpose, authorities have not indicated the open spaces/garden,which were already left in the approved layout in such residentialarea, appellants cannot claim the benefit of making constructionsin the plots which were left towards open space/garden. It is fairlywell settled that the open spaces/garden left in an approved layout,cannot be allowed for the purpose of constructions. However, ifone wants to utilize a big plot within the area of residential usageas indicated in the development plan, it is mandatory to sub-dividesuch big plots into smaller plots for utilizing them for the purposeof construction. When the layout is to be approved, certainpercentage of area is required to be left towards roads, openplots, garden etc. The development Plan prepared by MHADA,cannot be confused with the layout which is approved confiningto four big plots, on the application made by the appellants. It isnot necessary for only the owner to apply for such layout. In anyevent, having applied for layout which was approved and afterutilizing the 59 plots out of total of 61 plots, it is not open for the AB

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Aappellants to plead that it was not the obligation of the appellantsto submit layout. [Para 22][717-B-F]

3. In the layout sanctioned and obtained in the year 1967,the open spaces were rightly reserved as provided underRegulation 39 of 1967 DCR. Further, it is clear from perusal ofB1991 DCR that for different layouts or sub divisions of differentsizes in residential and commercial zones, different areas of open spaces are required to be provided. The development plan whichwas submitted by MHADA and approved on 15.10.1999, is withregard to the entire area covered by JVPD scheme. It appearsthat while submitting the development plan, the details of internalClayouts sanctioned by BMC were not shown. The sub-division ofbigger plots, as per the layout sanctioned by BMC, were also notshown in such development plan. Merely on such basis, theappellants cannot claim that the sub-plots which are covered byapproved layout, left towards open spaces/garden, can also beDused for constructions. [Para 22][717-F-H; 718-A]

4. It is totally erroneous on the part of 2[nd] respondent-MHADA in passing the order which is impugned in the writpetition, by recording a finding that the Trust has complete andabsolute right in respect of sub-plot No.14 of Plot No.3. It is clearEfrom the material placed on record that the authorities have mixedup the issue of reservation/usage as shown in the developmentplan and the open spaces as required to be kept in the layout asper the 1967 DCR and 1991 DCR. [Para 22][718-B-C]

5. During the relevant time, Maharashtra MunicipalFCorporation Act, 1888 (Bombay Act No.3 of 1888) was in force.To divide the land into complete plots, statutory approvals wererequired for the layout as per Section 302 and 302-A of the saidAct. As such, the open spaces, which were left towards open spaceand garden in the approved layout were in conformity with theRegulation No. 39 of 1967 DCR and Sections 302 and 302A ofG1988 Act. [Para 21][717-A-B]

6. The open spaces are required to be left for an approvalof layout or for the purpose of creating lung space for the owners H

of other plots where constructions are permitted. The 4 plotsbearing Nos. 1, 3, 5 and 6, were sub-divided at the instance ofthe appellant-Society in its entirety and approval was taken fordividing such land into 61 plots. It is not open to claim forconstruction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approvedlayout, the open spaces which are left, are to be continued in thatmanner alone and no construction can be permitted in such openspaces. [Para 23][718-D-F]

7. The Development Plan which was submitted in the year1999, as per the 1991 DCR, will not divest the utility of certainplots which are reserved for open spaces in the approved layout.The appellants cannot plead that such a layout was only temporaryand as a stop gap arrangement, the said two plots were shown asopen spaces/garden and now they be permitted to use forconstruction. There is no such concept as temporary layout inthe Scheme of the 1888 Act and Regulations made thereunder.[Paras 23 and 20][716-G-H; 718-D-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6216-6217 of 2019.

From the Judgment and Order dated 19.07.2017 of the High Courtof Judicature at Bombay in Writ Petition No. 2476 of 2015 and WritPetition (Lodging) No. 1130 of 2017 respectively.

Vikas Singh, Neeraj Krishan Kaul, Dhruv Mehta, Sr. Advs, G.Saikumar, Ravi Prakash, Samir Malik, Ms. Iti Agarwal, Paritosh Goyal(for M/s D.S.K. Legal), Advs. for the Appellants.

Sanjay Jain, ASG, Shiraz P. Rustomjee, Sr. Adv., P.S. Sudheer,Rishi Maheswari, Mrs. Mayuri Nayyar Chawla, Ms. Anne Mathew,Bharat Sood, Ms. Shruti Jose, Ms. Shreya Parikh, Ashish Wad, SidharthMahajan, Mrs. Sukriti Jaggi, Ajoy Sharma, Jayashree Wad (for M/s J SWad and Co.), Chirag M. Shroof, Ms. Yashika Verma, Advs. for theRespondents.

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R. SUBHASH REDDY, J.

1. Both these civil appeals arise out of a common judgment dated19.07.2017, passed by the High Court of Judicature at Bombay, in writpetition Nos. 2476 of 2015 and 1130 of 2017, as such, they are heardBtogether and disposed of by this common Order. The said writ petitionsare filed by way of Public Interest Litigation, for protecting two plotswhich are the subject matter of the writ petition, originally left towardsopen spaces, in the layout, approved in the year 1967.

2. The writ petition No. 2476 of 2015, was filed by four petitioners.CPetitioner No. 1, is a Trust, registered under the Bombay Public TrustAct, 1950 petitioner No.2 is an Architect, involved in the planning, designand maintenance of public open spaces in the City of Mumbai, petitionerNo.3 is a filmmaker and petitioner No.4 is an NGO. So far as the secondpetition is concerned, petitioner Nos. 2, 3 and 4 were common as in theDearlier petition. Petitioner No.1 is a Co-operative Housing Society. Thesubject matter of the 2015 writ petition is a plot of land, ad-measuring2,000 sq. meters (2500 square yards), forming part of plot No.6, CTSNo. 29 of Survey No.287 situated on 9[th] Wireless Road, JVPD Scheme,Juhu, whereas the subject matter of the 2017 writ petition, is a plot ofland ad-measuring 1687.18 sq. yards, forming part of old plot No.3, CTSENo.196-A, North-South, 10[th] Road, JVPD Scheme, Juhu, Mumbai.3. For the purpose of disposal of these appeals, we refer to theparties, as arrayed in writ petition No. 1130 of 2017.

4. The erstwhile Maharashtra Housing Board (MHB), nowMaharashtra Housing and Area Development Authority, (MHADA),Fframed a scheme covering total land area of 5,80,000/- square yards,under Bombay Housing Board Act, 1948. The said Scheme was calledas JVPD Scheme.

5. The 4[th] respondent-Trust, representing interest of DawoodiBohra Community, made a request to the Housing Commissioner, toGallot land, in JVPD Scheme. The then Maharashtra Housing Boardallotted four plots, bearing plot Nos. 1, 3, 5 and 6 in the said Scheme,totally ad-measuring 46,850 sq. yards, for allotment to the individualsand housing societies. For dividing the said plots bearing Nos. 1,3,5 and6, the 4[th] respondent, through its Architect, submitted a layout plan forHapproval by the then Bombay Municipal Corporation (now Municipal Corporation of Greater Mumbai) (MCGM). Bombay MunicipalCorporation has sanctioned the layout, in which, an area ad-measuring1687 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 disputethe remaining plots in the sanctioned layout, were allotted to individualsand housing societies and such plots are already utilized by makingconstructions thereon. So far as plot No.6/11 is concerned, there wereearlier proceedings in writ petition Nos.1964 of 2007 and 2151 of 2009.Initially, the said plot was allotted by the State Government to oneParasmani Co-operative Housing Society and thereafter on 15.02.2007,the possession of the said plot was given to the 4[th] respondent-AnjumanE-Shiate Ali (appellant no.1 herein)(for short, ‘Anjuman Trust’), a PublicTrust. In the said writ petition, there was a settlement between the partiesand both the petitions came to be disposed of, in accordance with theconsent terms, by order dated 10.11.2014. One of the petitioners, i.e.,“Save Open Spaces” (one of the respondents herein) approached theHigh Court, seeking review of the Order, by filing review petitions. Thesaid review petitions are disposed of, leaving open the issue as to whethersuch plots can be utilized for construction or not and by further observingthat petitioners in review petitions are not bound by the Order in writpetitions. When the appellants were taking steps to use the said plot formaking construction, the writ petitioners approached High Court in 2015by way of a petition, claiming various reliefs inter alia for a declarationthat the said plot forms part of mandatory open space in the layout andno construction can be permitted on such plot. So far as plot bearingNo.3/14 is concerned, MHADA had granted license for beautificationand maintenance of the garden to the 1[st] petitioner-Society (respondentno.1 herein). When the 4[th] respondent-Anjuman Trust, approached theChief Executive Officer (CEO) of MHADA (2[nd] respondent), forregistration of Co-operative Society, same was opposed by petitionerNo.1. The Chief Officer, MHB, vide Order dated 24.07.2013, rejectedthe claim of Anjuman Trust. Aggrieved by the Order passed by the ChiefOfficer, MHB, appeal was preferred before CEO and Vice President ofMHADA, which appeal was opposed by petitioner No.1, on merits aswell as on the ground of limitation. The CEO and Vice President,overruling the objections of petitioner No.1, had passed an Order dated21.03.2017, directing lease of sub-plot No.3/14, in favour of beneficiaries,chosen by Anjuman Trust, for the purpose of construction. At that stage,2[nd] writ petition was filed in the year 2017, questioning the orders passedby the CEO and Vice President of MHADA.

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A6. Primarily, it was the case of the writ petitioners before theHigh Court that, as these two plots were shown as open spaces/gardenin the sanctioned layout, in the year 1967, as such, they cannot be usedfor constructions. It was alleged that the Anjuman Trust, taking advantageof development plan submitted in 1999 by MHADA, in which the areacovered by these two plots also, was shown as residential area, wasBtrying to make constructions. It was further alleged that the 2[nd]respondent, in collusion with the Anjuman Trust, has allotted the saidplots to its nominees. It was pleaded on behalf of the writ petitioners thatthe usage of the area, as residential purpose, in the development plan of1999, has nothing to do with the reservations shown in the approvedClayout of 1967. It was pleaded that as per the Development ControlRules for Greater Bombay, 1967, 15 per cent of the area was to beshown as open space, as such these two plots were shown/ reserved foropen space. The writ petitioners have also questioned the authority of2[nd] respondent for passing any Order, on the application filed by the 4[th]respondent, for granting lease in favour of its nominees.D

7. The relief sought in the writ petitions was opposed, mainly onthe ground that in view of the development plan prepared in the year1999 by MHADA, requisite area was already shown towards openspaces, as such, it is not open to look into earlier documents. It was thespecific case of 4[th] respondent, that in the 1999 development plan, asEentire area covered by plot No.3 and plot No.6 was shown as residentialarea, the sub-plot nos. 14 and 11 in these plots, which were shown earlieras reserved for open spaces/garden, can very well be used for makingconstructions. It was the case of the 4[th] respondent that open area whichis shown in the 1999 development plan, works out to 24.63% of the totalFarea and the same was in accordance with New Development ControlRegulations of 1991.

8. The relief sought in the writ petition was opposed by the StateGovernment as well as MHADA, on the ground that as the said sub-divisioned plots were shown as residential, in the development plan ofG1999, there is no impediment for making constructions on these twoplots.

9. The Division Bench of the High Court, by considering rivalclaims of the parties, referring to relevant provisions of DevelopmentControl Rules (DCRs), and the provisions of Municipal Corporation Act,Hhas 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 usedfor constructions. It is further held that, while preparing the developmentplan for entire JVPD scheme in the year 1999, the details of internallayouts, as sanctioned by the BMC, were not shown. Further it is heldthat, the usage, as mentioned for residential area in the developmentplan, cannot be understood to mean that the open spaces/garden, asapproved in layout of 1967, can be used for constructions. The HighCourt has also recorded a finding that the 2[nd] respondent has grosslyerred in setting aside the decision of predecessor and directed the ChiefArchitect to withdraw the revised plans, submitted by MHADA toMCGM, vide Order dated 21.03.2017. Precisely, the High Court hasobserved that the 2[nd] respondent had committed error in mixing the issueof reservation, as provided in the development plan and the open space/garden, which was required to be left mandatorily, as per 1967 DCR and1991 DCR. With the aforesaid findings, the High Court has allowed thewrit petitions, and quashed the Order dated 21.03.2017, passed by the2[nd] respondent-MHADA and declared that the aforesaid two plots arerequired to be maintained as open spaces, as per the layout sanctionedin proceedings No. BMC/MCGM/1967 and further declared that noconstruction activity can be permitted on the aforesaid plots.Consequently, the lease deed executed by 2[nd] respondent-MHADA, infavour of 5[th] respondent-Society, was also quashed.

10. We have heard Sri Vikas Singh, learned senior counselappearing for the appellants; Sri Shiraz P. Rustomjee, learned seniorcounsel appearing for the respondent nos.1-4; Mr. Ashish Wad, learnedcounsel appearing on behalf of Municipal Corporation of GreaterMumbai; and Mr. Sanjay Jain, learned Additional Solicitor Generalappearing on behalf of Maharashtra Housing & Area DevelopmentAuthority.

11. Having heard the learned counsels on both sides, we haveperused the impugned order and other material placed on record.

12. It is contended by learned senior counsel, appearing for theappellants that the obligation to reserve the open space/recreation ground(RG), is on the owner of JVPD Scheme i.e. MHADA and not onappellant no. 1-Anjuman Trust. The appellant no.1’s Architect, whileliaising with MCGM left two sub-plots i.e. 3/14 and 6/11 temporarilybecause of MHADA’s deficiency in reserving 15% of JVPD Schemeas open space/garden, as per the 1967 DCR.

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A13. It is submitted that when the layout plan was prepared for theentire area of more than 5,80,000 square yards as per Regulation 23 of1991 DCR, open spaces shown in the approved layout of 1967, were notshown as open spaces, inasmuch as the area covered by the two plots inquestion was earmarked as residential area and as such, there cannotbe any hindrance for making constructions on the land in question. It isBfurther submitted that on account of failure on the part of the then MHB/MHADA, to prepare layout for sub-plots as per 1967 DCR, appellantNo.1 was constrained to prepare the private layout plan for the four bigplots at the insistence of BMC and was compelled to leave 10% openspace in such layout as a stop gap arrangement. As the obligation toCleave/reserve open space in the entire area of JVPD Scheme is that ofMHADA, there is no reason or justification for preventing constructionson the plots in question. It is further submitted that about 25% of the landis already shown for open spaces in the development Plan as per 1991DCR and the High Court has committed error in recording a finding thatthe earlier two plots are to be continued as open spaces/garden spaces.D

14. On the other hand, learned counsel appearing for respondentNos. 1-4/ writ petitioners, has contended that the approved layout of1967, is binding on all the parties. It is submitted that the request ofAnjuman-E Shiate-Ali (Anjuman Trust) for allotment of plots wasaccepted by the then Maharashtra Housing Board, on the ground thatEAnjuman Trust should obtain the necessary sanction of layout/sub-dividedplots, for plot Nos. 1, 3, 5 and 6 from the MCGM. It is submitted thathaving had the benefit of sub-division and utilization of all the plots forthe 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 forFconstruction. It is submitted that the development Plan as per the 1991DCR, broadly indicates the usage of land in various zones, as such, thesame is no reason to claim for making constructions in the smaller plots/sub-divided plots, which are left as open space/garden in the approvedlayout. It is submitted that under the Scheme of the Act and Rules/Regulations made thereunder, there is no concept as temporary layout,Gas claimed by the appellants.

15. It is submitted that the sub-plot Nos. 3/14 and 6/11 were offeredvoluntarily in the layout plan and the same were legally mandated to bekept as open space/garden by MCGM, as per Development ControlRegulation 39(a)(ii) of 1967. Further it is submitted that the obligation toH

obtain layout, as contemplated under Section 302 of Mumbai MunicipalCorporation Act, 1888 (‘MMC Act’) is not restricted in its application tothe owner of the land alone and, in fact, it applies to every person whointends to sell, use any land or permit the same to be used for buildingpurposes or divide the land into building plots. It is submitted that AnjumanTrust is squarely covered by the ambit of the aforesaid Section. It issubmitted that the development Plan of 1999 does not overtake the 1967layout, which is approved by the Competent Authority, sub-dividing thebig plots into smaller residential sites.

16. Sri Sanjay Jain, learned Additional Solicitor General appearingMHADA, has submitted that in view of the subsequent developmentplan of entire JVPD area, covering an extent of more than 580000 sq.yards of land, by which the sites in question were shown as residentialsites, there is no impediment for making constructions on such land. It issubmitted that the High Court has committed error in directing the saidplots to be continued as open spaces/garden, as shown in the layout of1967.

17. Having regard to contentions advanced by learned counselson both sides, the only issue which is required to be considered is whetherthe two sub-plots bearing Nos. 3/14 and 6/11, which are shown as openspaces/garden in the approved layout of 1967, can be allowed to beutilized for constructions, in view of the subsequent development planprepared by MHADA.

18. The Anjuman Trust, at first instance, had approached theerstwhile MHB (presently MHADA) for allotment of plots, for thepurpose of individual allottees and Co-operative Societies. On suchrequest, an extent of 46850 sq. yards of land was allotted to the AnjumanTrust, which is a part of larger JVPD Scheme. The Regulation No. 39of 1967 DCR, reads as under:

“39. Layouts or Sub-divisions.- (a) Layouts or sub-divisionin residential and commercial zones;

(i) When the land under development ad-measures 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 entireholding area shall be reserved for a recreational space which shallbe as far as practicable in one place.

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716SUPREME COURT REPORTS

A(iii) No such recreational space shall admeasure less than 450 sq.yds.

(iv) The minimum dimension of such recreational space shall inno case be less than 25 feet and if the average width of suchrecreational space is less than 80 feet the length thereof shall notBexceed 2½ times the average width.”

19. For dividing the total land allotted for the use of DawoodiBohra Community, covered by plot Nos. 1, 3, 5 and 6, admeasuring46850 sq. yards, the Architect of the appellants has prepared the layoutand submitted it for sanction to the Municipal Corporation. In such layout,Can area ad-measuring 1687 sq. yards in plot No.3 and the area of 2500sq. 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 purposeonly. Subsequently, MHADA has prepared a development plan for theentire JVPD scheme covering more than 5,80,000 sq. yards. The cruxof the appellants’ case is that in such development plan, the area coveredDby these two small plots, which are shown as open spaces/garden in theapproved layout, was shown as residential area, as such, they are entitledto make constructions in such two plots also.

20. As rightly held by the High Court, we are also of the view thatthe two plots, which are shown as open spaces/garden, in the approvedElayout, cannot be allowed to be used for the purpose of construction. Alarge area of 46,850 sq. yards was allotted for the purpose of allottingsmall plots to the members of Dawoodi Bohra Community. The entirearea 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 smallerFplots, the Architect of the Anjuman Trust has prepared layout andsubmitted to competent authority, showing these two small plots as openspaces/garden. It is not in dispute, such layout is approved and all theplots, except these two plots, which are left towards open space/gardenwere utilized for construction. Having had the benefit of such approvedlayout, and after making constructions in all the plots, except these twoGplots, which are left towards open space/garden, the appellants cannotclaim that they are entitled to make constructions, based on developmentplan prepared by MHADA, for the entire JVPD Scheme, which coversmore than 5,80,000 sq. yards. It is the case of the appellants that suchlayout of 1967 was prepared as a temporary measure. There is no suchHconcept as temporary layout in the Scheme of the MMC Act andRegulations made thereunder.

21. During the relevant time, MMC Act, 1888 (Bombay Act No.3of 1888) was in force. To divide the land into complete plots, statutoryapprovals were required for the layout as per Section 302 and 302-A ofthe said Act. As such, the open spaces, which were left towards openspace and garden in the approved layout were in conformity with theRegulation No. 39 of 1967 DCR and Sections 302 and 302A of MMCAct.

22. The development plan which is prepared by MHADA forentire area of more than 5,80,000 sq. yards, indicates broadly the usagesin different zones. It is well known that such development plans areprepared by showing various zones such as residential, commercial,industrial etc. Merely because in such development plan prepared, in thearea shown for residential purpose, authorities have not indicated theopen spaces/garden, which were already left in the approved layout insuch residential area, appellants cannot claim the benefit of makingconstructions in the plots which were left towards open space/garden. Itis fairly well settled that the open spaces/garden left in an approvedlayout, cannot be allowed for the purpose of constructions. However, itis to be noticed that if one wants to utilize a big plot within the area ofresidential usage as indicated in the development plan, it is mandatory tosub-divide such big plots into smaller plots for utilizing them for the purposeof construction. When the layout is to be approved, certain percentageof area is required to be left towards roads, open plots, garden etc. Thedevelopment Plan prepared by MHADA, cannot be confused with thelayout which is approved confining to four big plots, on the applicationmade by the appellants. It is not necessary for only the owner to applyfor such layout. In any event, having applied for layout which wasapproved and after utilizing the 59 plots out of total of 61 plots, it is notopen for the appellants to plead that it was not the obligation of theappellants to submit layout. In the layout sanctioned and obtained in theyear 1967, the open spaces were rightly reserved as provided underRegulation 39 of 1967 DCR. Further, it is clear from perusal of 1991DCR that for different layouts or sub divisions of different sizes inresidential and commercial zones, different areas of open spaces arerequired to be provided. The development plan which was submitted byMHADA and approved on 15.10.1999, is with regard to the entire areacovered by JVPD scheme. It appears that while submitting thedevelopment plan, the details of internal layouts sanctioned by BMCwere not shown. The sub-division of bigger plots, as per the layout AB

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Asanctioned by BMC, were also not shown in such development plan.Merely on such basis, the appellants cannot claim that the sub-plotswhich are covered by approved layout, left towards open spaces/garden,can also be used for constructions. The Chief Officer, in hiscommunication, has made it clear that the mandatory open spaces in theapproved plan are to be leased out to neighbouring societies for recreationBpurposes. Further, communication made by MHADA also shows thatthey have sent the proposal to MCGM for rectification of developmentplan, submitted in the year 1999, for showing these two plots as gardenplot. It is totally erroneous on the part of 2[nd] respondent-MHADA inpassing the order which is impugned in the writ petition, by recording aCfinding that Anjuman Trust has complete and absolute right in respect ofsub-plot No.14 of Plot No.3. It is clear from the material placed onrecord that the authorities have mixed up the issue of reservation/usageas shown in the development plan and the open spaces as required to bekept in the layout as per the 1967 DCR and 1991 DCR.

D23. It is also to be noticed that the open spaces are required to beleft for an approval of layout or for the purpose of creating lung spacefor the owners of other plots where constructions are permitted. The 4plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of theappellant-Society in its entirety and approval was taken for dividing suchland into 61 plots. It is not open to claim for construction in the two plotsEwhich are reserved for open spaces/garden spaces also. It is fairly wellsettled that in an approved layout, the open spaces which are left, are tobe continued in that manner alone and no construction can be permittedin such open spaces. The Development Plan which was submitted in theyear 1999, as per the 1991 DCR, will not divest the utility of certain plots Fwhich are reserved for open spaces in the approved layout. The appellantscannot plead that such a layout was only temporary and as a stop gaparrangement, the said two plots were shown as open spaces/garden andnow they be permitted to use for construction.

24. For the aforesaid reasons and in view of the reasons assignedGby the High Court in the judgment under appeal, we are of the view thatthere is no merit in these appeals, accordingly, these appeals are dismissed,with no order as to costs.

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Kalpana K. Tripathy