ANJUMAN E SHIATE ALI & ANR.versusGULMOHAR AREA SOCIETIES WELFARE GROUP & ORS. ETC.

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


A                    ANJUMAN E SHIATE ALI & ANR.
                                       v.
            GULMOHAR AREA SOCIETIES WELFARE GROUP
                         & ORS. ETC.
B                    (Civil Appeal Nos. 6216-6217 of 2019)
                                APRIL 17, 2020
                   [MOHAN M. SHANTANAGOUDAR
                     AND R. SUBHASH REDDY, JJ.]
            Urban Development:
C
             Town Planning - Allotment of area of 46,850 sq. yards for
      residential purpose out of total area 5,80,000 sq. yards allocated
      for development Scheme prepared by Development Authority –
      Layout prepared by the allottee for the area 46,850 sq. yard, by
      dividing the same into smaller plots and leaving certain area as
D
      open space, was approved by competent authority – In subsequent
      plan made by Development Authority for the entire development
      Scheme, the areas left as open spaces in allottee’s layout plan, was
      shown as residential area – Consequently construction allowed by
      Development Authority on the area initially left as open space –
E     Writ petition (PIL) on the plea that the open spaces sanctioned in
      the layout plan cannot be used for construction – High Court
      allowed the petition – Appeal to Supreme Court – Held: The area
      left towards open spaces in the approved layout, were in conformity
      with the Regulation No. 39 of 1967 DCR and ss. 302 and 302A of
      Municipal Corporation Act – In an approved layout, areas left as
F
      open spaces are to be continued in that manner alone and no
      construction can be permitted on such open spaces – The
      development plan as per 1991 DCR will not divest utility of plots
      reserved for open spaces – Therefore, the open spaces in the
      approved layout cannot be allowed to be used for the purpose of
G     construction – 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 for
H
                                      706
        ANJUMAN E SHIATE ALI v. GULMOHAR AREA                             707
              SOCIETIES WELFARE GROUP

the purpose of construction. A large area of 46,850 sq. yards was         A
allotted to the Trust for the purpose of allotting small plots. 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 Trust has prepared
layout and submitted to competent authority, showing these two
                                                                          B
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          C
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. [Para 20][716-D-G]
       2. The development plan which is prepared by MHADA
for entire area of more than 5,80,000 sq. yards, indicates broadly        D
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        E
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, if
one wants to utilize a big plot within the area of residential usage      F
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            G
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
                                                                          H
708            SUPREME COURT REPORTS                      [2020] 4 S.C.R.


A     appellants to plead that it was not the obligation of the appellants
      to 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 under
      Regulation 39 of 1967 DCR. Further, it is clear from perusal of
B     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
C     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
D     used for constructions. [Para 22][717-F-H; 718-A]
             4. 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 the Trust has complete and
      absolute right in respect of sub-plot No.14 of Plot No.3. It is clear
E     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. [Para 22][718-B-C]
            5. During the relevant time, Maharashtra Municipal
F     Corporation 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
G     1988 Act. [Para 21][717-A-B]
            6. The open spaces are required to be left for an approval
      of layout or for the purpose of creating lung space for the owners


H
        ANJUMAN E SHIATE ALI v. GULMOHAR AREA                           709
              SOCIETIES WELFARE GROUP

of other plots where constructions are permitted. The 4 plots           A
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
                                                                        B
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. [Para 23][718-D-F]
      7. 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.        C
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. There is no such concept as temporary layout in
the Scheme of the 1888 Act and Regulations made thereunder.             D
[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 Court
of Judicature at Bombay in Writ Petition No. 2476 of 2015 and Writ      E
Petition (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.
                                                                        F
      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, Sidharth
Mahajan, Mrs. Sukriti Jaggi, Ajoy Sharma, Jayashree Wad (for M/s J S
Wad and Co.), Chirag M. Shroof, Ms. Yashika Verma, Advs. for the
Respondents.                                                            G




                                                                        H
710             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A           The Judgment of the Court was delivered by
            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
B     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 towards
      open spaces, in the layout, approved in the year 1967.
             2. The writ petition No. 2476 of 2015, was filed by four petitioners.
C     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
D     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 ad-measuring 1687.18 sq. yards, forming part of old plot No.3, CTS
E     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.
            4. The erstwhile Maharashtra Housing Board (MHB), now
F     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
G
      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
H     approval by the then Bombay Municipal Corporation (now Municipal
      ANJUMAN E SHIATE ALI v. GULMOHAR AREA                                    711
   SOCIETIES WELFARE GROUP [R. SUBHASH REDDY, J.]

Corporation of Greater Mumbai) (MCGM). Bombay Municipal                        A
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
                                                                               B
constructions thereon. So far as plot No.6/11 is concerned, there 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     C
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
                                                                               D
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    E
that the said plot forms part of mandatory open space in the layout and
no construction can be permitted on such 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 respondent-Anjuman Trust, approached the
                                                                               F
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               G
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.                                        H
712             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A            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 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
B
      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
C     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.
D
             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 1999 development plan, as
E     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
F     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
G     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,
H     has held that these two plots were shown as reserved for garden purpose
      ANJUMAN E SHIATE ALI v. GULMOHAR AREA                                   713
   SOCIETIES WELFARE GROUP [R. SUBHASH REDDY, J.]

in the approved layout, in the year 1967, as such, same cannot be used        A
for constructions. It is further held that, while preparing the development
plan for entire JVPD scheme in the year 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
                                                                              B
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      C
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
                                                                              D
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 by 2nd respondent-MHADA, in
favour of 5th respondent-Society, was also quashed.
      10. We have heard Sri Vikas Singh, learned senior counsel               E
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                 F
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    G
(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.                                    H
714             SUPREME COURT REPORTS                            [2020] 4 S.C.R.


A            13. It is submitted that when the layout plan was prepared for the
      entire area of more than 5,80,000 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
B
      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
C     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.
D
             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 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
E     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
F     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,
G     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 that the obligation to
H
      ANJUMAN E SHIATE ALI v. GULMOHAR AREA                                     715
   SOCIETIES WELFARE GROUP [R. SUBHASH REDDY, J.]

obtain layout, as contemplated under Section 302 of Mumbai Municipal            A
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
                                                                                B
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.            C
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.                                                                           D
       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          E
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       F
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.           G
       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.                                   H
716            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A           (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
B           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,
C     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
D     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.
             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
E     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
F     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
G     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
H     concept as temporary layout in the Scheme of the MMC Act and
      Regulations made thereunder.
      ANJUMAN E SHIATE ALI v. GULMOHAR AREA                                       717
   SOCIETIES WELFARE GROUP [R. SUBHASH REDDY, J.]

       21. During the relevant time, MMC Act, 1888 (Bombay Act No.3               A
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
                                                                                  B
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          C
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            D
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         E
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     F
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              G
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               H
718             SUPREME COURT REPORTS                            [2020] 4 S.C.R.


A     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
B
      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
C     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.
D            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
E     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
F     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
G     by the High Court in the judgment 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.


      Kalpana K. Tripathy                                         Appeals dismissed.
H