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2017 Supreme(Bom) 967
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI AND RIYAZ I. CHAGLA, JJ.
Gulmohar Area Societies Welfare Group and Ors. - Petitioners
Vs.
Municipal Corporation of Greater Bombay and Ors. - Respondents
WRIT PETITION NO. 2476 OF 2015 WITH WRIT PETITION (LODGING) NO. 1130 OF 2017
Decided On : 19-07-2017
For the Petitioner: Mr. Shiraz Rustomjee, Ms. Shreya Parik, Ms. Sujata More and Ms. Aparjita Sen, M/s. Desai Desai Carrimjee and Mulla
For the Respondent: Mr. Sagar Patil, Mr. Jernold Joseph Xaview, Mr. Ravi Kadam, Mr. Vaibhav Parashuram, Mr. Dushyant Kumar, Mr. Prasad Dhakephalkar, Mr. Vivek Patil, Mr. Yogendra Shirwadkar, M/s. Vivek Patil, Mr. Aspi Chinoy, Mr. Roop Vasudeo, Ms. Dipali Mainkar, Mr. Virag Tulzapurkar, Mr. Vaibhav Joglekar, Mr. Ashok Paranjape, Mr. Deepan Dixit and Ms. Nazeen Kotwal, M/s. MDP and Partners, Dr. Milind Sathe, Mr. Roop Vasudeo, Mr. Nilesh Parmar
Plots specifically reserved for garden space in a layout sanctioned by the BMC/MCGM cannot be allotted for construction purposes.
Headnote:
The Court held that the two plots in question were required to be kept as an open garden space, as per the layout sanctioned by the BMC/MCGM in 1967. Consequently, the lease deeds executed by the MHADA in favor of the Juhuraj Cooperative Housing Society (Proposed) and Juhu Lifestyle Cooperative Housing Society Ltd. (Proposed) were quashed and set aside. The Court also directed the MCGM to consider the proposal submitted by the MHADA for showing these two plots as reserved for open space/garden and take a decision within six weeks.
Fact of the Case:
The Petitioners, a Public Trust and residents of Juhu, filed two Petitions challenging the allotment of two plots of land in Juhu, Mumbai, for construction purposes. The Petitioners contended that the plots were reserved for open space/garden space as per the layout sanctioned by the BMC/MCGM in 1967. The Respondents, including the MHADA, Anjuman Trust, and Juhuraj and Juhu Lifestyle Cooperative Housing Societies, claimed that the plots were shown as residential areas in the 1999 development plan and could be used for construction.
Finding of the Court:
The Court found that the plots in question were specifically reserved for garden space in the layout sanctioned by the BMC/MCGM in 1967. The Court held that the MHADA's decision to allot the plots for construction was illegal, irrational, and procedurally improper. The Court also found that the consent terms entered into between the Parasmani Society, Anjuman Trust, and Juhuraj Society, agreeing to nominate the Anjuman Society as the beneficiary of the plot and to execute a lease deed with the MHADA, were not legal and valid.
Issues: 1. Whether the plots in question were required to be kept as an open garden space, as per the layout sanctioned by the BMC/MCGM in 1967? 2. Whether the MHADA's decision to allot the plots for construction was legal, rational, and procedurally proper? 3. Whether the consent terms entered into between the Parasmani Society, Anjuman Trust, and Juhuraj Society were legal and valid?
Ratio Decidendi: The Court held that the plots in question were required to be kept as an open garden space, as per the layout sanctioned by the BMC/MCGM in 1967. The Court found that the MHADA's decision to allot the plots for construction was illegal, irrational, and procedurally improper. The Court also found that the consent terms entered into between the Parasmani Society, Anjuman Trust, and Juhuraj Society were not legal and valid.
Final Decision: The Court allowed the Petitions and quashed the MHADA's order allotting the plots for construction. The Court also quashed the lease deeds executed by the MHADA in favor of the Juhuraj Cooperative Housing Society (Proposed) and Juhu Lifestyle Cooperative Housing Society Ltd. (Proposed). The Court directed the MCGM to consider the proposal submitted by the MHADA for showing these two plots as reserved for open space/garden and take a decision within six weeks.
B.R. GAVAI, J.
Since the facts and questions of law involved in both these Petitions are common, the Petitions were heard together and are disposed of by this common Judgment and Order.
2. The first Writ Petition No. 2476 of 2015 is filed by Gulmohar Area Societies Welfare Group and others (hereinafter referred to as, “2015 Petition”, for short.). Petitioner No.1 therein, is a Public Trust registered under the provisions of the Bombay Public Trust Act, 1950 and has been formed for protecting the interest of residents of the Gulmohar Road Area, in Juhu, wherein two plots which are the subject matter of the present Petitions are situated. Petitioner Nos. 2 and 3 are the residents of Juhu. Petitioner No.2 claims to be an Architect, involved in the planning, design and maintenance of public open spaces in the City of Mumbai, including Juhu Beach and Gateway of India. Petitioner No.3 is a Filmmaker. Petitioner No.4 is an NGO, which claims to be committed to preserve and maintain the open spaces in the City of Mumbai.
3. Insofar as the second Petition is concerned, i.e. Writ Petition (Lodging) No. 1130 of 2017 (hereinafter referred to as, “2017 Petition”, for short.), the Petitioners therein i.e. Petitioner No.2, Petitioner No.3 and Petitioner No.4, are also the Petitioners in the earlier Petition. Petitioner No.1 is a Cooperative Housing Society located on Old Plot No.3, subplot No. 7.
4. In 2015 Petition, the subject matter is a plot of land admeasuring 2000 sq. mtrs. (2,500 sq. yards) being a part of the land bearing Plot No.6, CTS No. 29 of Survey No. 287 situated on 9th Wireless Road, JVPD Scheme, Juhu, whereas the subject matter of 2017 Petition is a plot of land admeasuring 1687.18 sq. yards, bearing the part of the land being Old Plot No.3, CTS No. 196A, North South, 10th Road, JVPD Scheme, Juhu, Mumbai.
5. For the sake of convenience, the Respondents herein, are referred to as mentioned in 2017 Petition.
It appears that, after the independence, in the year 1950, the Juhu Residential Area in Mumbai, was being developed under the name of Juhu Ville Parle Development Scheme (for JVPD, Scheme”). It further appears that, at the relevant time the said work was being undertaken by the erstwhile Housing Board Commissioner of Bombay. The larger area was divided into plots and subplots. It further appears from the record that, Respondent No.4, which is a Public Trust and which claims to act in the interest of Dawoodi Bohra Community, requested the then Housing Board Commissioner of Bombay to allot certain plots, which were further to be subdivided and alloted to the various individuals and Housing Societies, comprising of the members of Dawoodi Bohra Community. It further appears that, accordingly there was correspondence between the Architect of Respondent No.4, the Mumbai Housing Board (hereinafter referred to as, “MHB”) and the then Bombay Municipal Corporation, which is now the Municipal Corporation of Greater Mumbai (for short, “the MCGM”) with respect to Plot Nos. 1, 3, 5 and 6, totally admeasuring 46850 sq. yards, for allotment to the individuals and the Housing Societies of the Dawoodi Bohra Community. It further appears that, finally the Bombay Municipal Corporation sanctioned the layout as submitted by the Architect of Respondent No.4 wherein, an area admeasuring 1687 sq. yards in plot No.3 and the area of 2500 sq. yards in Plot No. 6, were to be kept open for the purpose of garden. Undisputedly, right from inception of the sanction of layout, these two plots namely subplot No. 14 in Plot No. 3 (hereinafter referred to as “Plot No. 3/14”) admeasuring 1687 sq. yards and subplot No.11 in Plot No.6 (hereinafter referred to as “Plot No. 6/11”) admeasuring 2500 sq. yards were either kept open or used for the garden purposes till very recently. However, it appears that subsequently, when the Maharashtra Housing and Area
