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9. Submissions on behalf of the petitioner:

9.1 Mr. Y.N. Oza, the learned Senior Counsel appearing with Ms. Vidita Jaiswal, the learned Advocate for the petitioner, submitted that it is not in dispute that the land on which the shops have been constructed is a common plot of the society, and further it is also not in dispute that no permission has been obtained either by the respondent No.3 or the respondent No.4 before putting up construction of 26 shops.

9.2 Mr. Oza submitted that in the first place the society itself is at fault because it could not have entered into an agreement with the respondent No.4 for construction of shops on the common plot of the society. According to Mr. Oza, a common plot cannot be used for any purpose other than the one for which it is reserved. Mr. Oza levelled serious allegations as regards the highhandedness and brazen attitude of the respondent No.4 in making such construction on the common plot of the society. Mr. Oza submitted that the authorities were quite alive to the fact that such construction was being made on the common plot, yet the authorities kept quiet and permitted the respondent No.4 to complete the construction.

18. It appears that the questions which were posed by the Supreme Court remains unanswered even after almost two decades of making such observations.

19. According to the definition of "common plot" as contained in the General Development Control Regulations of JADA, a common plot shall mean a common open space exclusive of margins and approaches, at a height not more than ground level of the building unit. The owner shall have to give an undertaking that the common plot shall be for the common use of all the residents and occupants of the building unit, free of cost. On sanction of the development permission, the common plot shall be deemed to have been vested in the Society/ Association of the residents/occupants. In case such Society or the Association is to be formed, the possession/custody of common plot shall remain with the competent authority until such Association/Society is formed. The common plot shall not be sold to any other person and it shall not be put to any other use, except for the common use of the residents/occupants.

The general requirements so far as the common plot is concerned, according to the General Development Control Regulations, are as under:-

"

1. The common plot area shall be exclusive of approaches, margins No projection shall be permitted in common plot.

2. Minimum size of the common plot shall be 200 sq. mts. With no side less than 10.50 Mts.

3. No construction shall be permitted in the common plot. Only electric sub station overhead water tank, under ground water tank, watchman's room, community hall for the occupier of respective sub plots or tenements or flats, tube well and rain water recharge well shall be permitted subject to margin as per this regulations and maximum 15 % of respective common plot area.

Provided for the building unit to be developed for other then residential use, parking place shall be provided at rate of 5 % of respective building unit in addition to require parking, at the ground level. "

20. Thus, from the above, it is very clear that under no circumstances, any construction can be made on a common plot. It is not the case of the Society that there was alteration in the N.A plan, which was approved by the competent authority under the Bombay Land Revenue Code, read with the Rules and the common plot had ceased to be a common plot. It appears from the agreement entered into between the Society and the builder, which is on record, that the common plot has continued as the common plot and the entire area of common plot is resolved to be handed over to the respondent No.4 for construction of 26 shops, which is not permissible in law. The respondent No.4, in brazen defiance of the provisions of law, proceeded ahead with the construction of the 26 shops without any valid permission from the authority concerned.