In the case of –Anjuman E Shiate Ali & Anr vs. Gulmohar Area Socities Welfare Group & Ors. Justice Mohan M Shantanagoudar and Justice Subhash Reddy dismissed an appeal by expounding that that in an approved layout, open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces.
FACTS
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. One of respondent, made a request to allot land under, JVPD scheme. MHB allotted four plots bearing plot no.s 1,3,5 and 6 in the scheme, totally measuring 46,650 sq. yards for allotment to the individuals and housing socities. Bombay Municipal Corporation 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 and other plots were already utilized by making construction thereon.
SUBJECT MATTER
The subject matter of the 2015 and 2017 writ petition is a plot of land.
HC: WRIT PETITION 2015
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 plot. So far as plot bearing No.3/14 is concerned, MHADA had granted license for beautification and maintenance of the garden.
- MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY-ORDER’s
The 4th respondent Anjuman Trust, approached the Chief Executive Officer (CEO) of MHADA (2nd respondent), for registration of Cooperative Society, and same was opposed by petitioner No.1. The Chief Officer, MHB, vide Order dated 24.07.2013, rejected the claim of Anjuman Trust.
- APPEAL BEFORE CEO & VICE PRESIDENT OF MAHADA
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.
HC: WRIT PETITION 2017
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, 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
SUPREME COURT-FINDINGS
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.
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 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.
SC Bench stated that it is well settled that in an approved layout, open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces.
Bench thus proceeded to dismiss the appeal.
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