Once an open space is shown in the final approved plan, it remains to be an open space forever and that the original owner of such land though having residuary ownership in nature, he holds it as trustee of layout plot holders.

JUDGMENT

Bharat P. Deshpande, J. - The moot question which arises for consideration in the present proceedings is as to whether the originally sanctioned open spaces on the basis of which plots are sold, whether can be altered under the garb that some area above the required percentage of 15% under the regulations was available.

2. Vide order dated 11.02.2021, notices were served on all the parties and it was made clear that the matter will be taken up for final disposal at the admission stage itself.

3. Rule. Rule returnable forthwith. Heard the parties by consent.

4. The Petitioners are the residents/plot owners of the project 'Aldeia de Goa' at Bambolim of which Respondent No.4 is the developer.

5. In the present petition, the Petitioners are aggrieved by the permission/NOC dated 11.12.2020 granted by the Dy. Town Planner/Respondent No.2 herein to Respondent No.4 for deviation/alteration in the final approved sub-division layout of the said project thereby allowing total area of 9,384 sq. mts of the open space to be deleted from the earlier approved plan and to be used for commercial and/or residential purpose.

6. Petitioners Nos.1 to 4 purchased plots in the first phase of the said project as per the final approved plan of the year 2004. Petitioner No.5 purchased plot in the second phase as per the approved plan 2007. All the Petitioners constructed their respective houses as per the approved plans.

7. In the year 2010, the developer applied for amalgamation of Phase I and II by submitting fresh plans. The open spaces shown in 2004 plan and 2007 plan were maintained as it is. The concerned authorities approved amalgamation of Phase I and Phase II wherein open spaces in both the phases were shown as it is.

8. Suddenly in the year 2020, the developer applied for revision of plans. In the said revision, open spaces shown in the amalgamation plan of 2010 were reduced by an area of 9384 sq. mts. Specifically, the open space 'A' admeasuring 1345 sq. mts. is deleted and included in a larger plot area for commercial activity. The entire open space 'B' admeasuring 581 sq. mts. is deleted and converted into residential plot No.409. The open space 'C' admeasuring 12710 sq. mts. has been reduced to 7052.5 sq. mts., as such, the area of 5657.5 sq. mts. has been included in the residential plots Nos.410, 411 and 412. The entire open space 'D' of 1800 sq. mts. is deleted and included within a plot for commercial activities. The Petitioners along with 43 other plot owners objected by filing representations to the Planning and Development Authority and Town Planner for conversion of such open spaces in Phase I and Phase II of the project. Such representations were filed somewhere in the year 2018-19, apprehending the intention of Respondent No.4 to convert such open spaces for commercial use. On 05.10.2020, Respondent No.4 applied with the Town and Country Planning Department for deviation/alteration in the sub-division layout of project in Phase I and Phase II for approval. After calling Respondent No.4 to submit clarifications, the concerned authority i.e. Respondent No.2 granted permission/NOC to Respondent No.4 to deviate/alter in the final approved sub-division layout which is impugned in the present petition.

9. Subsequently, the Petitioners sent legal notice to the Panchayat asking them not to take further action. However, on 07.01.2021, the Panchayat granted necessary NOC to Respondent No.4 on the basis of NOC granted by the Planning Department.

10. It is a matter of record that after filing of the petition, this Court vide order dated 28.01.2021 directed the Respondents to maintain status quo with regard to the open spaces in both the phases.

11. Heard Mr. Yogesh V. Nadkarni who appears along with Mr. Sanket Kamat for the Petitioners, Mr. Devidas Pangam, Ld. Advocate General who appears with Ms. Maria Correia, Additional Government Advocate for the State and Mr. J.P. Supekar who appears with Mr. Roger D'Souza and Ms. Sufiyan Sayed for Respon