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10 Shri Rustomjee, the learned Senior Counsel appearing on behalf of the Petitioners, submits that the present case is a case of blatant misuse of the powers by Respondent No.2. He further submits that, when the Chief Officer of the MHB had found that the Respondent Anjuman Trust had no independent right in the Trust and that the plot in question was reserved for garden, Respondent No.2 has grossly erred in allowing the purported Appeal of the Anjuman Trust. The learned Senior Counsel submits that, the Appeal was not tenable inasmuch as, the statute and unless the statute provides for the Appeal, the Appeal would not be tenable. The learned Senior Counsel submits that, Respondent No.2 has assumed the jurisdiction, not vested in him. The learned Senior Counsel submits that, when the Chief Officer by an elaborate order had held that the Anjuman Trust had no independent right and it was only acting as a facilitator ssm 13 wp-2476.15gp.sxw for the other individuals and societies of the members of the Dawoodi Bohra Community, the decision of Respondent No.2 is contrary to record and patently erroneous. The learned Senior Counsel submits that, the Respondent Anjuman Trust was very well aware from the beginning that both these plots are reserved for the garden. He submits that, the layout, which was submitted by the Architect of the Respondent Anjuman Trust to the MCGM, itself shows these two plots as reserved for garden. He submits that, however, the Respondent Anjuman Trust taking advantage of a slight mistake committed while submitting 1999 development plan, by which the said two plots were shown as residential area, with a malafide intention has attempted to create a right, which is not vested in it. The learned Senior Counsel further submits that, Respondent No.2, in collusion with the said Anjuman Trust, has fallen prey to the illegal design of the land- grabbers and allotted the plot for construction to the nominee of Anjuman Trust on the plot, which is reserved for garden space. 11 The learned Senior Counsel submits that, Respondent No.2 has erred in mixing the issue of reservation in a development plan and the reservation for the garden area in a particular layout. He submits ssm 14 wp-2476.15gp.sxw that, the 1999 development plan submitted by the MHADA was for the entire JVPD area and as such, the reservations shown therein were totally different than the reservation which are required to be kept in a particular layout. He however, submits that Respondent No.4- Anjuman Trust was very well aware from inception that the aforesaid two plots were reserved for the garden, in the layout situated on the 46850 sq. yards of land, which was allotted by MHADA to the individuals and the members of the Dawoodi Bohra Community, through the Respondent-Anjuman Trust. He submits that the Respondent Anjuman Trust only acted as an facilitator and has no independent right in any of the plots. The learned Senior Counsel submits that under the provisions of law as existing in 1967 i.e. Section 302 of the Bombay Municipal Corporation Act, (for short, "the BMC Act") and Regulation 39 of the Development Control Rules, 1967, it was mandatory to keep 15% open space in the layout and accordingly, the aforesaid two plots are kept reserved for garden area, in pursuance to the mandate of those statutory provisions. He further submits that the perusal of the files of the MHADA itself would reveal that, the MHADA had committed mistake while submitting the development plan of 1999, since the said two plots were not shown as ssm 15 wp-2476.15gp.sxw reserved for garden. It is submitted that, having realized the said mistake committed by it, the MHADA had sent the proposal to the MCGM for showing these two plots reserved for garden, so as to make out the deficiencies in the open space area, mandatorily required to be kept.

31 It could thus be seen from the perusal of Regulation 39 of 1967 DCR, that if the land under development admeasured 3000 sq. yards or more, the owner of the land was required to submit a proper layout plan or the sub-division of his entire independent holding. Clause (ii) of Regulation 39 further reveals that, in any such layout or sub-division 15 per cent of the entire holding area was required to be kept reserved for recreational space, which was further required to be as far as practicable in one space. Clause (iii) requires that, such recreational space shall not to be less than 450 sq. yards. Clause (iv) thereof deals with the dimensions of the plot of such recreational area. 32 On perusal of Regulation 23 of the 1991 DCR, it would reveal that for different layouts or sub-divisions of different sizes in residential and commercial zone, different areas of open spaces are required to be provided. For an area between 1001 sq. mtrs. to 2500 ssm 29 wp-2476.15gp.sxw sq. mtrs. 15% open area is required to be provided. For an area from 2501 sq. mtrs. to 10000 sq. mtrs., 20% area is required to be provided, whereas for an area of more than 10001 sq. mtrs., 25% of the area is required to be provided as open space of the layout or sub- division. Regulation 23 would further reveal that these open spaces are exclusive of areas of accesses/internal roads, designations or reservations, development plan roads and areas for road-widening. It further provides that, as far as possible, the open area should be provided in one place. It further provides that, in an area of layout or sub-division, which are more than 5000 sq. mtrs. open spaces could be provided in more than one places, however, at least one of such places is required to be not less than 1000 sq. mtrs. Clauses (b) and (c) of Regulation 23 deal with the minimum area and the minimum dimensions. Clause (d) provides that, every plot meant for a recreational open space should have an independent means of access, unless it is approachable directly from every building in the layout. Clause (e) provides that the ownership of such recreational spaces shall vest by provisions in a deed of conveyance, in all the property owners on account of whose holdings the recreational space is assigned.

39                   However,   it   appears   that,   when   MHADA   submitted   a 




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revised development plan on 15 October 1999, it submitted a layout of entire JVPD scheme. It however, appears that, while submitting the said development plan, the details of the internal layouts, as sanctioned by the BMC were not shown in the said layout and as such, the plots which are subject matter of the present Petitions, which are part of big plot Nos. 3 and 6 were shown as plots of Dawoodi Bohra Committee Co-operative Housing Society. However, the internal sub- division of the said bigger plots, as per the layouts sanctioned by the BMC has not been shown in the layout plan.

55 The main reasoning given by Respondent No.2 for holding in favour of Anjuman Trust, is that Petitioner No.1 in 2017 Petition, has not challenged the development plan of 1991 and approved layout of 1999. Another reasoning given by the learned Authority is that 1991 development plan and approved layout of 1999, clearly override the private layout of 1967-68. We find that the reasonings are totally unsustainable. The development plans would show the areas, which are reserved for various purposes, like commercial, playground, open spaces etc. However, both 1967 DCR, as well as, 1991 DCR specifically provide that certain areas should be kept as an open area, while dividing the plot into sub-plots and while making the layouts. As already discussed hereinabove, 1967 DCR specifically provides that when the land under development is admeasuring 3000 sq. mtrs. or more, 15% of the area is required to be reserved for recreational space. Admittedly, the layout plan, which was submitted by the Architect of Respondent No.4, was for an area of 46850 sq. ssm 49 wp-2476.15gp.sxw yards. It could thus, be seen that, the layout was for a area of more than 3000 sq. yards and as such, it was necessary to provide 15% of the land as open land/recreational area. Even if the area of both these plots is counted together, it would not even make even 10% of the layout area. Not only this, but the position would be amply clear from the communication of Architect of Respondent No.4 itself, dated 5 December 1962 and 17 June 1965. The position is also clear from the layout plans, which are sanctioned by the Corporation in the year 1967.