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15. The rival contentions now fall for determination.

16. At the outset, it is necessary to note that the most vital issue which arises in this matter is whether the disputed plot which came to be alloted by the society to Upasani, was indeed a "common amenity" i.e. pathway or open space between two plots in terms of the layout originally approved by the authorities, on the basis of which the development has proceeded was at least required to proceed. If the material on record indicates that the disputed plot was indeed a common amenity, then the next question which arises for determination is whether the society was then entitled to allot the disputed plot in favour of Upasani so as to wp-2968-2004.doc convert this common amenity into a private property of Upasani. These are the main issues which arise for determination in this matter.

18. In terms of the planning regulation, spaces between two plots wp-2968-2004.doc or open arises are required to be maintained as a part of the planning permission or the layout subject to which the development came to be permitted. Therefore, whether this common amenity is described as pathway or described as open space, is really not very relevant. What is relevant is that this space whether called as pathway between two plots or styled as open space between two plots, is a common amenity meant for the benefit of the society in terms of the approved layout.

33. The observations in Bangalore Medical Trust (supra) in the context of regulations which require even private house owner to leave open space in front and back for lawn and fresh air are significant. In the present case, when the lay out was approved, deliberately, pathways or open spaces were maintained between the plots. This serves vital public purpose or serves a vital purpose qua entire lay out is concerned. If, the society or rather, the Managing Committee members of the society decided to wp-2968-2004.doc appropriate such common amenities, common pathways or common open spaces for individual and private use of the members or the plot allottees then, health hazards are bound to ensue. The society, cannot be permitted to act in such a manner even assuming that such acts are beaked by majority.