India: Construction Cannot Be Allowed On An Open Space In Approved Building Layout Plans

The Supreme Court in its recent decision in Anjuman E Shiate Ali & Anr v. Gulmohar Area Societies Welfare Group & Ors. [Civil Appeal Nos. 6216-6217 of 2019] has held that open spaces left for garden areas in approved building layout plans cannot be allowed for construction.

FACTS:

The Bombay High Court's common judgement dated 19th July, 2017 in two public interest litigations was impugned before the Apex Court. The Public Interest Litigations filed by way of writ petitions were in respect of protecting two plots, originally left towards open spaces, in the layout, approved in the year 1967.

The Maharashtra Housing Board ("MHB"), now Maharashtra Housing and Area Development Authority, ("MHADA"), had framed a scheme called JVPD Scheme in 1967 covering a total land area of 5,80,000 square yards, under the Bombay Housing Board Act, 1948.

Two plots, one ad-measuring 1687 square yards being plot no. 3/14 and another admeasuring 2500 square yards being plot no. 6/11, were shown in the layout plan for the purpose of garden/open space. When the Appellants i.e. Anjuman Trust were taking steps to use one of the two plots for the purpose of construction, the writ petitioners, approached the High Court in 2015, 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. In respect of the second plot, a writ petition was filed in the year 2017 by one Gulmohar Society i.e. Respondent in the said Appeals on being aggrieved by the Order of the CEO and Vice President of MHADA dated 21st March 2017 ("Impugned Order") as it had directed the lease of second plot for the purpose of construction in favour of beneficiaries chosen by the Anjuman Trust.

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.

Whilst allowing the writ petitions and setting aside the Impugned Order, the Division Bench of the High Court, referred to the relevant provisions of the Development Control Rules ("DCRs") and the Municipal Corporation Act and held that the two plots were shown as reserved for garden purpose in the approved layout, in the year 1967 and as such, the same cannot be used for construction.

ISSUE:

The issue before the Apex Court was whether the two sub-plots, which are shown as open spaces/garden in the approved layout of 1967, can be allowed to be utilized for construction in view of the subsequent development plan prepared by MHADA?

SUBMISSIONS ON BEHALF OF THE APPELLANTS: The Appellants contended that the obligation to reserve the open space/recreation ground (RG), is on the owner of JVPD Scheme i.e. MHADA and not on the Appellant No. 1-Anjuman Trust.

It was 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 was earmarked as residential area and accordingly, there should not be any hindrance for making constructions.

It was further submitted that about 25% of the land was already shown for open spaces in the development Plan as per the 1991 DCR and the High Court had committed error in recording a finding that the two plots are to be continued as open spaces/garden spaces.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

On the other hand, it was contended on behalf of the Respondents that the approved layout of 1967, is binding on all the parties. It was submitted that the request of the Anjuman Trust for allotment of plots was accepted by the then Maharashtra Housing Board on the ground that Anjuman Trust should obtain the necessary sanction of layout/sub-divided plots, for plot Nos. 1, 3, 5 and 6 from the MCGM and 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 construction. The said plots were offered voluntarily in the layout plan and the same were mandated to be kept as open space/ garden by the MCGM. Further, 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 was further submitted that the Development Plan of 1999 does not supersede the 1967 layout, which is approved by the Competent Authority, sub-dividing the big plots into smaller residential sites.

JUDGEMENT:

While upholding the High Court's decision, the Apex Court held that 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. The Apex Court observed that it was not in dispute that the layout is approved and all the plots, except the 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 the development plan prepared by MHADA, for the entire JVPD Scheme, which covers more than 5,80,000 sq. yards. On the Appellants' submission that such layout of 1967 was prepared as a temporary measure, the court observed that there is no such concept as temporary layout in the Scheme of the Mumbai Municipal Corporation Act and the Regulations made thereunder. The court held that in the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved under Regulation 39 of 1967 DCR.

It was observed that it was fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions.

Accordingly, the Appeals were dismissed.

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