Sanction for raising construction cannot be granted over open spaces earmarked in layout plan; SC.

Supreme Court of India

Justice R. Subhash Reddy & Justice Mohan M. Shantanagoudar

The SC on April 17, 2020 {Anjuman E Shiate Ali & Anr. v. Gulmohar Area Societies Welfare Group & Ors.} held that the 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. It was held that the 4 plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of the appellant-Society in its entirety and approval was taken for dividing such land into 61 plots. It was held that it is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It was also held that it is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. It was further held that the Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. It was held that 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. 

It was held that, it was rightly held by the High Court,  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. It was held that 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. It was held that there is no such concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder.

Further held that during the relevant time, MMC Act, 1888 (Bombay Act No.3 of 1888) was in force. It was held that to divide the land into complete plots, statutory approvals were required for the layout as per Section 302 and 302-A of the said Act. It was held that as such, the open spaces, which were left towards open space and garden in the approved layout were in conformity with the Regulation No. 39 of 1967 DCR and Sections 302 and 302A of MMC Act.

In the present case, the issue which is required to be considered by the SC is whether the two sub-plots bearing Nos. 3/14 and 6/11, which are shown as open spaces/garden in the approved layout of 1967, can be allowed to be utilized for constructions, in view of the subsequent development plan prepared by MHADA. The said was answered in negative by the SC.

Consequently, it was held by the SC that there is no merit in the appeals, accordingly, the appeals were dismissed.