Anjuman E Shiate Ali vs Gulmohar Area Societies Welfare … on 17 April, 2020


Supreme Court of India

Anjuman E Shiate Ali vs Gulmohar Area Societies Welfare … on 17 April, 2020

Author: Mohan M. Shantanagoudar

Bench: Mohan M. Shantanagoudar, R. Subhash Reddy

      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
Signature Not Verified

Digitally signed by
ANITA MALHOTRA
Date: 2020.04.17
15:26:06 IST
Litigation, for protecting two plots which are the
Reason:

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 9 th

Wireless Road, JVPD Scheme, Juhu, whereas the subject

matter of the 2017 writ petition, is a plot of land ad-

measuring 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 ad-

measuring 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 Co-

operative 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 1 st petitioner-Society

(respondent no.1 herein). When the 4th respondent-

Anjuman Trust, approached the Chief Executive Officer

(CEO) of MHADA (2nd respondent), for registration of Co-

operative 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 respondent-

Society, 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 sub-

plots 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 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 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



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