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SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, R. SUBHASH REDDY, JJ.
Anjuman E Shiate Ali & Anr. – Appellants
Versus
Gulmohar Area Societies Welfare Group & Ors. etc. – Respondents
CIVIL APPEAL NOS.6216-6217 OF 2019
Decided On : 17-04-2020
Town Planning – Protection of plots originally left towards open spaces in layout – Two plots which are shown as open spaces/garden, in approved layout, cannot be allowed to be used for the purpose of construction – Large area of 46,850 sq. yards was allotted for the purpose of allotting small plots to members of Dawoodi Bohra Community – Entire area of 46,850 sq. yards was covered by four big plots – For utilizing such large area, by dividing same into smaller plots, Architect of Anjuman Trust has prepared layout and submitted to competent authority, showing these two small plots as open spaces/garden – Such layout is approved and all plots, except these two plots which are left towards open space/garden were utilized for construction – Having had benefit of such approved layout, and after making constructions in all plots, except these two plots, which are left towards open space/garden, appellants cannot claim that they are entitled to make constructions, based on development plan prepared by MHADA, for entire JVPD Scheme, which covers more than 5,80,000 sq. yards – Merely because in such development plan prepared, in area shown for residential purpose, authorities have not indicated open spaces/garden, which were already left in approved layout in such residential area, appellants cannot claim benefit of making constructions in plots which were left towards open space/garden – Open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions – Reasons assigned by High Court in judgment under appeal upheld – Appeals dismissed. [Section 302 of Mumbai Municipal Corporation Act, 1888; Regulation No. 39 of 1967 Development Control Rules] (Paras 20, 22, 23 and 24)
Facts of the Case:
Instant civil appeals arise out of a common judgment dated 19.07.2017, passed by the High Court of Judicature at Bombay, in writ petition Nos. 2476 of 2015 and 1130 of 2017, as such, they are heard together and disposed of by this common Order. The said writ petitions are filed by way of Public Interest Litigation, for protecting two plots which are subject matter of the writ petition, originally left towards open spaces, in the layout, approved in year 1967. Relief sought in writ petitions was opposed, mainly on the ground that in view of development plan prepared in the year 1999 by MHADA, requisite area was already shown towards open spaces.
Findings of the Court:
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.
Result : Appeals dismissed.
JUDGMENT
R. SUBHASH REDDY, J.
1. Both these civil appeals arise out of a common judgment dated 19.07.2017, passed by the High Court of Judicature at Bombay, in writ petition Nos. 2476 of 2015 and 1130 of 2017, as such, they are heard together and disposed of by this common Order. The said writ petitions are filed by way of Public Interest Litigation, for protecting two plots which are the subject matter of the writ petition, originally left towards open spaces, in the layout, approved in the year 1967.
2. The writ petition No. 2476 of 2015, was filed by four petitioners. Petitioner No. 1, is a Trust, registered under the Bombay Public Trust Act, 1950 petitioner No.2 is an Architect, involved in the planning, design and maintenance of public open spaces in the City of Mumbai, petitioner No.3 is a filmmaker and petitioner No.4 is an NGO. So far as the second petition is concerned, petitioner Nos. 2, 3 and 4 were common as in the earlier petition. Petitioner No.1 is a Co-operative Housing Society. The subject matter of the 2015 writ petition is a plot of land, ad-measuring 2,000 sq. meters (2500 square yards), forming part of plot No.6, CTS No. 29 of Survey No.287 situated on 9th Wireless Road, JVPD Scheme, Juhu, whereas the subject matter of the 2017 writ petition, is a plot of land admeasuring 1687.18 sq. yards, forming part of old plot No.3, CTS No.196-A, North-South, 10th Road, JVPD Scheme, Juhu, Mumbai.
3. For the purpose of disposal of these appeals, we refer to the parties, as arrayed in writ petition No. 1130 of 2017.
4. The erstwhile Maharashtra Housing Board (MHB), now Maharashtra Housing and Area Development Authority, (MHADA), framed a scheme covering total land area of 5,80,000/- square yards, under Bombay Housing Board Act, 1948. The said Scheme was called as JVPD Scheme.
5. The 4th respondent-Trust, representing interest of Dawoodi Bohra Community, made a request to the Housing Commissioner, to allot land, in JVPD Scheme. The then Maharashtra Housing Board allotted four plots, bearing plot Nos. 1, 3, 5 and 6 in the said Scheme, totally admeasuring 46,850 sq. yards, for allotment to the individuals and housing societies. For dividing the said plots bearing Nos. 1,3,5 and 6, the 4th respondent, through its Architect, submitted a layout plan for approval by the then Bombay Municipal Corporation (now Municipal Corporation of Greater Mumbai) (MCGM). Bombay Municipal Corporation has sanctioned the layout, in which, an area ad-measuring 1687 sq.yards in plot No.3 and an area of 2500 sq.yards, in plot No.6, were shown for the purpose of garden/open space. It is not in dispute the remaining plots in the sanctioned layout, were allotted to individuals and housing societies and such plots are already utilized by making constructions thereon. So far as plot No.6/11 is concerned, there were earlier proceedings in writ petition Nos.1964 of 2007 and 2151 of 2009. Initially, the said plot was allotted by the State Government to one Parasmani Cooperative Housing Society and thereafter on 15.02.2007, the possession of the said plot was given to the 4th respondent-Anjuman E-Shiate Ali (appellant no.1 herein) (for short, ‘Anjuman Trust’), a Public Trust. In the said writ petition, there was a settlement between the parties and both the petitions came to be disposed of, in accordance with the consent terms, by order dated 10.11.2014. One of the petitioners, i.e., “Save Open Spaces” (one of the respondents herein) approached the High Court, seeking review of the Order, by filing review petitions. The said review petitions are disposed of, leaving open the issue as to whether such plots can be utilized for construction or not and by further observing that petitioners in review petitions are not bound by the Order in writ petitions. When the appellants were taking steps to use the said plot for making construction, the writ petitioners approached High Court in 2015 by way of a petition, claiming various reliefs inter alia for a declaration that
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