WP-25-2021 (J).doc

Jose

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.25 OF 2021

1. Mr. RAMAN MADHOK

aged 75 years,

residing at Plot No. 19,

Aldeia de Goa,

Bambolim – Goa.

2. Mr. NEVILLE CHICO,

aged 56 years,

residing at Plot No. 84,

Aldeia de Goa,

Bambolim – Goa.

3. Mr. AMIT PRADHAN,

aged 65 years,

residing at Plot No. 57,

Aldeia de Goa,

Bambolim – Goa.

4. Mr. JOSEPH NORONHA,

aged 65 years,

residing at Plot No. 11,

Aldeia de Goa,

Bambolim – Goa.

5. Mrs. MARIAM SANDHU,

aged 68 years,

residing at Plot No. 202,

Aldeia de Goa,

Bambolim – Goa. … Petitioners

Versus

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1. STATE OF GOA,

through its Chief Secretary,

having its office at Secretariat,

Porvorim, Goa.

2. Dy. TOWN PLANNER,

Town & Country Planning Department,

Tiswadi Taluka Office,

05

th

Floor, Kamat Tower,

Patto, Panaji – Goa.

3. VILLAGE PANCHAYAT CURCA, BAMBOLIM

& TALAULIM,

through its Secretary,

Tiswadi – Goa.

4. GOAN REAL ESTATE & CONSTRUCTION

PVT. LTD.,

Aldeia de Goa,

P.O. Goa University,

Bambolim – Goa. ... Respondents

Mr. Yogesh V. Nadkarni with Mr. Sanket Kamat, Advocates for the

Petitioners.

Mr. Devidas Pangam, Advocate General with Ms. Maria Correia,

Additional Government Advocate for the Respondent-State.

Mr. J.P. Supekar with Mr. Roger D'Souza and Ms. Sufiyan Sayed,

Advocate for Respondent No.4.

CORAM:

G.S. KULKARNI &

BHARAT P. DESHPANDE, JJ.

RESERVED ON: 23

rd

September, 2022

PRONOUNCED ON: 30

th

September, 2022

JUDGMENT: (Per Bharat P. Deshpande, J.)

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1.The moot question which arises for consideration in the present

proceedings is as to whether the originally sanctioned open spaces on the

basis of which plots are sold, whether can be altered under the garb that

some area above the required percentage of 15% under the regulations was

available.

2.Vide order dated 11.02.2021, notices were served on all the parties

and it was made clear that the matter will be taken up for final disposal at

the admission stage itself.

3.Rule. Rule returnable forthwith. Heard the parties by consent.

4.The Petitioners are the residents/plot owners of the project “Aldeia

de Goa” at Bambolim of which Respondent No.4 is the developer.

5.In the present petition, the Petitioners are aggrieved by the

permission/NOC dated 11.12.2020 granted by the Dy. Town

Planner/Respondent No.2 herein to Respondent No.4 for

deviation/alteration in the final approved sub-division layout of the said

project thereby allowing total area of 9,384 sq. mts of the open space to be

deleted from the earlier approved plan and to be used for commercial

and/or residential purpose.

6.Petitioners Nos.1 to 4 purchased plots in the first phase of the said

project as per the final approved plan of the year 2004. Petitioner No.5

purchased plot in the second phase as per the approved plan 2007. All the

Petitioners constructed their respective houses as per the approved plans.

7.In the year 2010, the developer applied for amalgamation of Phase I

and II by submitting fresh plans. The open spaces shown in 2004 plan and

2007 plan were maintained as it is. The concerned authorities approved

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amalgamation of Phase I and Phase II wherein open spaces in both the

phases were shown as it is.

8.Suddenly in the year 2020, the developer applied for revision of

plans. In the said revision, open spaces shown in the amalgamation plan

of 2010 were reduced by an area of 9384 sq. mts. Specifically, the open

space “A” admeasuring 1345 sq. mts. is deleted and included in a larger

plot area for commercial activity. The entire open space “B”

admeasuring 581 sq. mts. is deleted and converted into residential plot

No.409. The open space “C” admeasuring 12710 sq. mts. has been

reduced to 7052.5 sq. mts., as such, the area of 5657.5 sq. mts. has been

included in the residential plots Nos.410, 411 and 412. The entire open

space “D” of 1800 sq. mts. is deleted and included within a plot for

commercial activities. The Petitioners along with 43 other plot owners

objected by filing representations to the Planning and Development

Authority and Town Planner for conversion of such open spaces in Phase

I and Phase II of the project. Such representations were filed somewhere

in the year 2018-19, apprehending the intention of Respondent No.4 to

convert such open spaces for commercial use. On 05.10.2020,

Respondent No.4 applied with the Town and Country Planning

Department for deviation/alteration in the sub-division layout of project

in Phase I and Phase II for approval. After calling Respondent No.4 to

submit clarifications, the concerned authority i.e. Respondent No.2

granted permission/NOC to Respondent No.4 to deviate/alter in the final

approved sub-division layout which is impugned in the present petition.

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9.Subsequently, the Petitioners sent legal notice to the Panchayat

asking them not to take further action. However, on 07.01.2021, the

Panchayat granted necessary NOC to Respondent No.4 on the basis of

NOC granted by the Planning Department.

10.It is a matter of record that after filing of the petition, this Court

vide order dated 28.01.2021 directed the Respondents to maintain status

quo with regard to the open spaces in both the phases.

11.Heard Mr. Yogesh V. Nadkarni who appears along with Mr. Sanket

Kamat for the Petitioners, Mr. Devidas Pangam, Ld. Advocate General

who appears with Ms. Maria Correia, Additional Government Advocate

for the State and Mr. J.P. Supekar who appears with Mr. Roger D'Souza

and Ms. Sufiyan Sayed for Respondent No.4.

12.With the assistance of the learned Counsels appearing for the

respective parties, we perused the entire record, the relevant rules,

regulations as well as the case laws cited across the bar.

13.The learned Counsel Shri Y.V. Nadkarni appearing for the

Petitioners submitted that once the open spaces are shown in the

approved plans, the plot owners in the said scheme become joint owners

along with the developer and therefore, they have a right over the said

land to be used for the purpose for which it is reserved as open space. In

this regard, he placed reliance on the specific provisions of the 2000 PDA

Regulations, Goa (Regulations of Land Development and Building

Construction) Act, 2008 together with the Goa Land Development and

Building Construction Regulations, 2010. He strongly contended that the

open spaces kept in a sanctioned layout cannot be altered and used for

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any other purpose than the one which is mentioned in the Regulations

and the Act. He forcefully submitted that the Petitioners purchased the

plots in the said Phase I and Phase II on the basis of approved plans

wherein open spaces have been shown to be kept for the purpose of

recreation. He invited attention to the sale deeds of Petitioners No.1 to 5

and claimed that there are specific clauses which show that the vendor i.e.

developer agreed to maintain the open spaces as per the approved plans

of 2004 and 2007 as it is till the project is handed over to society.

14.The learned Counsel Shri Nadkarni then submits that even though

plan 2004 and plan 2007 show open spaces which are more than 15% of

the total project land, the developer is duty bound to maintain such open

spaces forever for the purpose of benefits of the plot owners. According

to him, once the open space in an approved plan, always an open space.

Thus, he would submit that a revision of the plans by the developer with

the intention to reduce or alter open spaces cannot be permitted. He

fairly conceded that the Petitioners are not against revision of the plans

which could be altered as per the provisions. However, his main thrust is

only against conversion of the open spaces to commercial use without

consent of the Petitioners. According to him, if the developer wants to

convert such open spaces, he ought to have obtained permission of all the

plot owners in the said project. On this premise, he submitted that the

prayers as amended be allowed.

15.The prayers in the petition reads thus:-

“A. That this Hon'ble Court be pleased to quash and set

aside the Impugned Permission / NOC bearing No.

TIS/3801/BAM/TCP/2020/1749 dated 11

th

December,

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2020 to the extent it permits alteration / conversion of

9,384 sq. mts. of OPEN SPACE A, OPEN SPACE B,

OPEN SPACE C and OPEN SPACE D;

(A1) that this Hon'ble Court be pleased to quash and set

aside the NOC bearing No. VP/CBT/2020-2021/1125

dated 07

th

January, 2021 of the Respondent No. 3

Panchayat to the extent it permits alteration / conversion

of 9,384 sq. mts. of Open Space A, Open Space B, Open

Space C and Open Space D.

B. That pending hearing and final disposal of the present

Petition, this Hon'ble Court be pleased to stay the

Impugned Permission / NOC bearing No.

TIS/3801/BAM/TCP/2020/1749 dated 11

th

December,

2020 to the extent it permits alteration / conversion of

9,384 sq. mts. of OPEN SPACE A, OPEN SPACE B,

OPEN SPACE C and OPEN SPACE D;

C. That pending hearing and final disposal of the Petition,

this Hon'ble Court be pleased to restrain the Respondent

No. 4 herein and / or his agents, servants or any person

claiming through on behalf of the Respondent No. 4 from

changing the nature of the subject OPEN SPACE A,

OPEN SPACE B, OPEN SPACE C and OPEN SPACE D

and from undertaking any development or construction in

the said OPEN SPACE A, OPEN SPACE B, OPEN

SPACE C and OPEN SPACE D;

D. That pending hearing and final disposal of the present

Petition, this Hon'ble Court be pleased to restrain the

Respondent No. 4 from creating any third party rights in

respect of OPEN SPACE A, OPEN SPACE B, OPEN

SPACE C and OPEN SPACE D;

E. For ad-interim, ex-parte reliefs in terms of prayer

clauses (B), (C) and (D); and

F. For such other and further reliefs as this Hon'ble Court

deems fit and proper in the facts and circumstances of this

case.”

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16.Additional affidavit was filed by Respondent No.4. Whereas it has

been claimed that the petition itself is not tenable as the Petitioners are

having alternate efficacious remedy of filing of civil suit to claim their

easementary rights of fresh air, light, etc. for the purpose of using such

open spaces.

17.As far as merit of the petition is concerned, it is the case of

Respondent No.4 that he has every right to apply for revised plans and he

is only bound to keep open spaces of 15% as provided under the statute in

the entire project. It is his case that under the revised plans of 2020, he

has shown open spaces of 15% of the entire project which is necessary to

be used by the plot owners. It is his contention that the Petitioners,

though plot owners, cannot claim any right over the particular open

spaces shown in plan 2004 or plan 2007 of Phase I and II as the project is

not complete. According to Respondent No.4, the project is undergoing

development and additional land is available for him to develop for

commercial and residential purposes. Therefore, he applied for revised

plans wherein he has shown open spaces of 15% in the entire project.

Therefore, the Petitioners cannot claim any right as there is no

infringement of any provision of law, rules or regulations of planning.

18.The learned Advocate General appearing for the State submitted

that in the revised plans, Respondent No.4 has shown 15% of open spaces

as per the 2010 Regulations and therefore, the revised plans have been

approved. He submitted that while accepting such revised plans, the

planning authorities did not commit any illegality as the open spaces of

15% is clearly maintained. According to him, there is no statutory

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violation while granting such revised permission. Learned Advocate

General also submitted that the civil rights, if any, of the Petitioners could

be agitated before the Civil Court by filing appropriate proceedings and

not before this Court.

19.The learned Advocates appearing for the other Respondents

supported the above arguments of Respondent Nos.2 and 4.

20.In rejoinder, the learned Counsel Shri Nadkarni appearing for the

Petitioners forcefully submitted that not only civil rights but the

fundamental rights of the Petitioners are violated for the simple reason

that the very object of keeping open spaces in the final project plan gives

vested right to the plot owners and the right of the developer is restricted

only to transfer such spaces to the society to be formed or to the local

authorities for the purpose of maintenance. In this respect, he heavily

relied upon 2000 PDA Regulations and more specifically Regulation 5.4

which speaks about open spaces. He then submitted that the open spaces

are zoned in Zone R whereas the other property of Respondent No.4 was

zoned in Zone S1 to S4. He then submitted that Regulation 4.A prohibits

the use of Zone R specifically for any other purpose. He submitted a

chart stating as to how Respondent No.4 has reduced the area in order to

claim more area for the purpose of development. In this respect, he

pointed out that amalgamated 2010 plan shows the net effective area as

2,96,642 sq. mts. in which the area under open spaces is shown as 44,175

sq. mts. (15.10%). In the said plan of 2010, although an area under

commercial and utilities is shown as 11,550 sq. mts., an area falling within

100 sq. mts. of high tide line is shown as 46,411 sq. mts. These areas are

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not deducted for calculating the net effective area and the 15% open space

required to be reserved is calculated on the net effective area of 2,92,643

sq. mts. However, in the impugned permission/NOC dated 11.12.2020,

the net effective area is purported to be reduced from 2,92,643 sq. mts. to

2,31,936 sq. mts. by excluding an area of 46,411 sq. mts. against purported

area falling within 100 metres line from high tide and further an area of

11,599 sq. mts. against purported area under commercial/community/

public/utilities/amenities. This reduction of net effective area from

2,92,643 sq. mts. to 2,31,936 sq. mts. is illegal, unlawful and contrary to

the provisions. He submits that exclusion of an area of 46,411 sq. mts.

from the net effective area for the first time in the impugned

permission/NOC dated 11.12.2020 is impermissible, unlawful and illegal.

He then submitted that the purported excluded area of 46,411 sq. mts.

includes two open spaces of 8,330 sq. mts. and 7,052.5 sq. mts. totalling to

15,382.5 sq. mts.

21.Learned Counsel Shri Nadkarni then claimed that on the basis of

the sale deeds and on the basis of approved plan of 2004, approved plan

of 2007 and amalgamated plan of 2010, the Petitioners have right of

easements of light, ventilation and playground over the open spaces as

approved in the sub-division plans. He would submit that positive

representation made by Respondent No.4 to each Petitioner that the open

spaces as approved in the plan of 2004, plan of 2007 and the

amalgamated plan of 2010 would be maintained as open spaces forever

and for the benefit of the plot owners. Believing such representation and

the approved final plans showing the open spaces in the entire project,

the Petitioners purchased the plots. Therefore, without consent and

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approval of the Petitioners and other plot owners, the developer is

precluded from converting such open spaces for commercial or

residential use.

22.The learned Counsel Shri Nadkarni placed reliance on the

following decisions:-

1.Down Mangor Valley, Residents Welfare Association &

another vs. Mormugao Municipal Council through its Chief

Officer & others

1

,

2.Anjuman E Shiate Ali and Anr. vs. Gulmohar Area Societies

Welfare Group and Ors.

2

,

3.Pt. Chet Ram Vashist (Dead) by Lrs. vs. Municipal

Corporation of Delhi

3

,

4.Shri Gurudatta Co-operative Housing Society Wadgaon

Gupta and Ors. vs. State of Maharashtra and Ors.

4

,

5.Vasantrao and Ors. vs. Aurangabad Municipal Corporation

and Ors.

5

,

6.Real Estate Agency vs. Model Co-operative Housing Society

Ltd. and Ors.

6

, and

7.Supertech Limited vs. Emerald Court Owner Resident Welfare

Association and Ors.

7

23.The learned Advocate General placed reliance on the following

decision:-

1.Industrial Association of Small Scale Industries v. State of

Maharashtra

8

.

1 2002 (3) Bom. C.R.29

2 AIR 2020 SC 2011

3 (1995) 1 SCC 47

4 MANU/MH/2078/2016

5 MANU/MH/1620/2015

6 (1990) 3 Bom. C.R. 534

7 (2021) 10 SCC 1

8 2019 SCC OnLine Bom 778

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24.Having heard the learned Counsels for the respective parties and

after considering the relevant provisions, we propose to consider the

relevant provisions of the 2000 PDA Regulations, the provisions of the

Goa (Regulation of Land Development and Building Construction) Act,

2008, (hereinafter called “Act of 2008”) and Goa Land Development and

Building Construction Regulations, 2010, (hereinafter called as “2010

Regulations”). However, before considering such regulations, we would

like to discuss the main purpose of keeping open spaces at the time of

sub-division and development of a property. This concept is required to

be kept in mind in order to decide the issue involved in the present

petition.

25.Reservation of open spaces for parks and playgrounds is

universally recognized as legitimate exercise of statutory powers

rationally related to the protection of the residents of a locality from the

ill effects of urbanization. In providing legislation for reserving spaces for

parks and open spaces, the legislative intent has always been the

promotion and enhancement of the quality of life by preservation of

character and desirable aesthetic features and protection of environment.

Open spaces for recreation and fresh air, playgrounds for children,

promenade for residents and other amenities are matters of great public

concern and vital interest to be taken care of in development schemes.

Any act would be contrary to legislature intent and inconsistent with

statutory requirement. It will be diversely in conflict with the

constitutional mandate to ensure that State action is inspired by the basic

values of individual freedom and dignity and addressed to the attainment

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of a quality of life which makes guaranteed rights as related for all

citizens. If the quality of life is directly affected due to reduction of open

spaces approved under the final plans, the entire project of development

would be curtailed.

26.Thus, we sincerely consider the grievances raised by the

Petitioners in the present petition as affecting their fundamental rights to

life and to enjoy free air and light. Therefore, we consider it appropriate

to reject preliminary objection raised by the Respondents that a civil

remedy is available to the Petitioners as the same is not effective for the

redressal of fundamental rights of the Petitioners as raised in the present

petition. The basic arguments advanced in the present petition is that

once the open space is shown as approved in the final approval plan, the

plot owners in the said project get a right to use such places as open

spaces forever and for their benefit.

27.The contention raised by the learned Counsel Shri Nadkarni with

regard to the rights of the Petitioners is fully justified on the basis of the

sale deeds. First of all, the sale deeds by which the Petitioners purchased

plots clearly show that the final approval of the development plan is

issued by the Planning and Development Authority in the year 2004

itself, as far as Phase I is concerned. Similarly, the Planning and

Development Authority granted final approval to the plans in the year

2007 as far as Phase II is concerned. Therefore, there is reference in the

sale deeds of such finally approved plans. Similarly, sale deeds of the

Petitioners show in clause (i) as under:-

“As for the said common areas and open spaces, the

Vendor initially and on completion of the development on

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“the said Larger Property”, an Apex Body or Company or

Association of Persons as may be formed of all Plot

Owners, Premise Owners or their Society, shall be

entrusted with the management and control thereof.”

28.Paragraph nos.5, 7 and 12 of the sale deeds read thus:-

“5. AND the Purchasers do hereby covenant with

theVendor THAT THEY shall become members of the

Apex body/Association to be Organized, formed and

registered by the Vendor of various Sub Plot

Owners/Society/ies in "the said Larger Property", to look

after the maintenance, security and up-keep of the said

common areas and common open spaces within "the said

Larger Property” AND FURTHER the Purchasers agree

and undertake to pay to the Vendor initially and ultimately

to said APEX SOCIETY/Body their proportionate share

in the taxes, expenses and outgoings effective from

15.06.2004, in respect of the maintenance, security and

up-keep of the said common areas and said common

spaces and the Vendor and/or the said Apex

Society/Body, as the case may be, are entitled for

defraying the same, out of interest earned from the said

"Corpus Fund" AND THEY, the Purchasers hereby

undertake to pay to the Vendor/Apex Society or Body, as

the case may be, any deficit or additional charges

proportionately for the maintenance, security and upkeep

of the said common areas and the common open spaces as

is determined by the Vendor or such Society/ Association

as the case may be from time to time and for which if the

interest earned from the said "Corpus Fund" is found to be

insufficient in any financial year, regularly within 30

(Thirty) days of the end of such financial year,

commencing from the end of current financial year in

ensuing March, so as to enable the Vendor and/or the said

Apex Society/Association (when formed), to manage and

maintain the common areas and common open spaces

uninterruptedly for the benefit of the members and

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occupants of its member and member societies AND the

Purchasers hereby further covenant with the Vendor that

they the Purchasers shall accordingly as aforesaid

contribute towards the expenditure for the maintenance,

upkeep and security of the said common areas and the

common open spaces and shall also contribute

proportionately to all cost, charges and expenses of

renovation, modernization and replacement of such

common areas and the common open spaces and to

observe and perform the rules and regulations framed by

the Vendor and/or the said Apex Society/ Association to

regulate the use and enjoyment of the said common areas

and common open spaces, which on completion of the

development of "the said Larger Property", the Vendor

have agreed to convey in favour of the said Apex Society

(excluding the areas to be conveyed to local authorities)

and the Purchasers herein do hereby reaffirm their

undertaking and consent for the same.

7. AND FURTHER THAT the Purchasers covenant with

the Vendor to observe and perform and implement the

Terms and Conditions of the said Sanctioned Sub Division

Scheme dated 15/6/2004 while development and use of

“the said Sub Plot” and as applicable to “the said Sub-Plot

in relation to sanctions/permissions obtained/ to be

obtained by Vendor with regards to development of “the

said Larger Property” and the Building Plan/s as may be

sanctioned by the authorities concerned in respect of the

development to be carried out by the Purchasers at their

own costs, risk and expenses on “the said Sub Plot” and

the Purchasers hereby confirms the entitlement of the

Vendor to carry on development on the remaining portions

of “the said Property” and “the said Larger Property” in

the manner as per the said Sub Division/Layout

sanctioned/ to be sanctioned and/or permitted/ to be

amended by the authorities concerned from time to time.

12. AND IT IS FINALLY AGREED BY AND

BETWEEN THE PARTIES HERETO THAT all out of

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pocket expenses and costs, charged, expenses of and

incidental to these presents including Stamp Duty and

Registration Charges shall be borne and paid by the

Purchasers alone and that the consideration herein

mentioned is inclusive of the proportionate consideration

of the common areas and common open spaces as may be

provided by the Vendor in “the said Larger Property”, that

are to be ultimately conveyed to the said Apex Society or

Body as herein mentioned upon completion of the

development of “the said Larger Property”.”

29.Thus, the sale deeds of the Petitioners clearly show that first of all

the open spaces as shown in Plan 2004 and Plan 2007 are required to be

maintained as it is by the developer/Respondent No.4 and finally the

same has to be handed over to the society or association for the purpose

of maintenance.

30.The 2000 Regulations were published by exercising powers

conferred under Section 141 of Goa Town and Planning Act, 1974, which

is clear from the notification produced at Exh. R attached to the petition.

Therefore, the 2000 Regulations were prepared and published as per the

powers under Section 141 of Goa Town and Country Planning Act, 1974

and thus are having statutory force. These regulations were in force till

the 2010 Regulations came on the statute book. Admittedly, necessary

permissions for development of the said project were granted to

Respondent No.4 under the said 2000 Regulations. Regulation 3.4 of the

2000 Regulations specifically provided for grant of permission.

Regulation No.3.4.2 (a),(b) reads thus:-

“2.(a) In case of an application for sub-division of land,

the authority shall grant provisional permission specifying

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all conditions to be complied as per sub-division

regulations provided in para (v) of these regulations. On

compliance of all conditions of “provisional permission”,

applicant shall submit a fresh application in the manner

prescribed above and the authority shall grant “final

permission”.

(b) In case the application is for sub-division of an already

approved sub-divided plot, final permission shall be

granted at the time of first application itself.”

31.Regulation 4 in para (iv) deals with issuing zoning regulations and

use provisions. Regulation 4A.1 deals with land use of zones wherein in

Table (IV) the land shown as parks/playgrounds, recreational are shown

in Zone R.

32.Regulation 4A.2 deals with provisions governing the uses wherein

the uses are prohibited except those permitted with restrictions:-

“4A.2 – Provisions governing the uses

1. USES PROHIBITED: (Except those permitted with

restrictions).

i) Zones S1, S2, S3 & S4:

Wholesale trade, warehousing, all kind of industries,

railway yards, sidings, air ports and air stations, electric

power plants, gas works, fabrication and assembly

workshops, scrapyards, transport agencies, automobile

workshops, hotels, motels, hostels and restaurants.

ii) Zones C1, C2, C3 and C4:

Extensive, heavy and noxious industries, airports and

air stations, electric power plants and gas works.

iii) Zones I-1, I-2 & I-3:

a) I-1:

Extensive, heavy and noxious industries.

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b) I-2:

Noxious and hazardous industries.

c) I-3:

All uses other than industries with exception of those

permitted with restrictions.

iv) Zone P

All kinds of industries, wholesale trade, warehousing,

storage, airports & air stations.

v) Zone T:

Theatres, Auditorium, Cultural and religious

institutions, heavy, noxious & hazardous industries, sports

stadia, crematoria, cemeteries, burial grounds and other

uses permitted under other zones.

vi)Zone R

All uses permitted under other zones.

vii)Zone A1 & A2

All uses other than agriculture, horticulture, farming

and allied operations.

viii)Zone F

All uses prohibited in the basis Zone, since this is a

superimposed Zone.

33.Para (V) of the 2000 Regulations deals with sub-division

regulations.

34.The learned Counsel Shri Nadkarni heavily placed reliance on

Regulation 5.4 which deals with regulations regarding open spaces and

reads thus:-

“5.4) Regulations regarding open spaces.

1) When the plot to be sub-divided has an effective area of

more than 4000.00 m2, an area equal to 15% of the

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effective area of such plot shall be set apart as usable open

space/green area.

2) The open spaces shall be deemed to be zoned as Zone

“R” and shall be jointly held, developed and maintained

by the owners of the sub-divided plots, unless they are

transferred to the local Authority.

3) The open space/spaces to be provided under sub-

clause (1) may be kept in more than one parcel, each

parcel having an area of not less than 500.00 m2 and least

dimension of not less than 15.00 m.

4) All open spaces shall have a means of access as though

it is an independent plot.

5) In commercial zones, if bye-lanes of width not less than

7.50 m. are provided adjoining public roads, to be used for

parking, the area of such bye-lanes may be computed in

the open space upto 50% of the total requirements of open

space.

6) In case of partial development of a plot, 15% open space

should be set apart of only that part of the plot undertaken

for development provided that this part of the plot as well

as the remaining part are not less than 4000.00 m2 in

area.

The open spaces shall be used for recreational and

community purposes of the occupants of the sub-divided

plots and/or for installations of public utilities, provided

such installations do not cover more than 5% of each of

the open space, a minimum 3.00 m. setback from any

edge of the plot is kept and the maximum height of any

construction is restricted to 6.00 m. only. In case of water

tower, the height restriction will not be applicable.”

35.The learned Counsel Shri Nadkarni placed heavy reliance on

Regulation 5.4.2 as quoted above claiming therein that open spaces shall

be deemed to be zoned as Zone R and shall be jointly held, developed and

maintained by the owners of the sub-divided plots unless they are

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transferred to the local authority. He, therefore, would submit that once

the final approved plan shows open spaces whether 15% of the total area

or more, the plot owners get vested right in such open spaces and shall be

jointly held by the owners of sub-divided plots, unless such spaces are

transferred to the local authority. In other words, he contended that the

developer/Respondent No.4 is also a joint owner along with the owners

of sub-divided plots of such open spaces but his right is restricted to only

transfer it either to the society or to the local authority as the case may be.

The developer has no other right as provided in the said regulation.

36.The 2010 Regulations which came into force on the basis of

Section 4 of Act of 2008, first time defines open spaces at Regulation

2(94) which reads thus:-

“Regulation 2(94) – “Open Space” means an area

forming part of a site left open to the sky and includes the

areas reserved as such in a sub-division of land for the

purpose of recreation or any other public use permitted

under these Regulations;

37.The learned Counsel Shri Nadkarni appearing for the Petitioners

submitted that the provisions of the 2000 Regulations with regard to open

spaces are the same as found in the 2010 Regulations except minor

changes. However, it is reiterated in the 2010 Regulations that open

spaces shall be used for recreational and community purposes of the

occupants of sub-divided plots and/or for installation of public utilities

provided such installations do not cover more than 5% of each of the open

space, a minimum 3 metres setback from any edge of the plot is kept.

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Similarly, open spaces shall be deemed to be zoned as Zone “R” and shall

be governed by the following regulations:-

38.Regulation 12.4 deals with open spaces and reads thus:-

“12.4 Regulations regarding open spaces:

(a) When a plot is to be sub-divided, certain areas shall be set apart

as usable open space in the proportion given as detailed in

TABLE-XI below. Further such open space provided in any sub-

division of land shall not be further sub-divided under these

regulations. Provided that the Goa Industrial Development

Corporation may re-align, revise or reduce the open spaces

maintained by it in any existing Industrial Estate or Industrial Area

as per the standards specified in the Table below:

TABLE-XI

Zone Area to be sub-

divided

Open space to be provided

1 2 3

S1, S2,

S3, S4

4000 m2 and

above

15%

C1, C2,

C3, C4

4000 m2 and

above

15%, out of which 10% is to be developed as recreational

open space and 5% as general pool parking which is open

to sky and shall not be built upon.

P 4000 m2 and

above

15%, out of which 10% is to be developed as recreational

open space and 5% as general pool parking which is open

to sky and shall not be built upon.

[I1, I2,

I3,

10,000 m2 and

above

15%, out of which 7.5% is to be developed as recreational

open space and 7.50% as general pool parking which is

open to sky and shall not be built upon.

In GIDC developed industrial estates/industrial areas,

7.5% of the total area shall be reserved for open space, out

of which 2.5% shall be kept for recreational landscaping

such as park/garden/tree plantation and 5% can be used

for general utility like OHR, pump house, sump and

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general parking open to sky.]

The open space area that may be available to be released

over and above the requirement of 7.5% of the total area

shall be deemed to be zoned as industrial area.

T 20,000 m2 and

above

“(b) The open spaces can be provided in more than one

parcel. However, the area of each such parcel shall not be

less than 500 square meters and the minimum length of

any side shall not be less than 15.00 meters.

Further, in case of triangular open space/any open space

having irregular shape, the minimum dimension shall be

that of a circle, having 15 meters diameter, inscribed

within such an irregular shape (refer sketch No. 7).

(c) All open spaces shall have a means of access as though

it is an independent plot.

(d) The open spaces shall be used for recreational and

community purposes of the occupants of the sub-divided

plots and/or for installations of public utilities, provided

such installations do not cover more than 5% of each of

the open space, a minimum 3.00 meter setback from any

edge of the plot is kept and the maximum height of any

construction is restricted to 6.00 m only. In case of water

tower, the height restriction will not be applicable.

(e) The open spaces shall be deemed to be zoned as zone

“R” and shall be governed by the following provisions:-

(i) The open spaces may be transferred to the local

authority by a gift deed by the owner/developer before

obtaining final approval. If the open spaces are

transferred to the local authority the same shall be

developed and maintained by such local authority for the

purpose mentioned in subclause (d) above. However,

purchasers of the plots shall be entitled to free access and

use of the open spaces.

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(ii) In case of Group Housing wherein open spaces are

required to be kept, then, such open spaces shall be

jointly held by the owners of the premises/Co-operative

Housing Society. The owners of the premises or Co-

operative Housing Society shall be deemed to have an

undivided share in such open spaces proportionate to the

area of their premises. Its use however shall remain

unchanged as stipulated at sub-clause (d) above.

While enclosing the area by a compound [or boundary]

wall, adequate provision shall be made to ensure that

access is not obstructed to any adjoining [property

thereby making it a land locked property.]

(f) In commercial zones, if bye-lanes of width not less

than 7.50 m. are provided adjoining public roads, to be

used for parking, the area of such bye-lanes may be

computed in the open space up to 50% of the total

requirements of open space.

(g) In case of partial development of a plot, 15% open

space should be set apart of only that part of the plot

undertaken for development provided that this part of the

plot as well as the remaining part is not less than 4000 m²

in area.

(h) General pool parking provided in the regulations at

Table XI shall be only of open to sky type and shall not be

built upon.”

39.Conjoint reading of the above provisions of the Regulations

uncontrovertedly prove that the Petitioners who are owners of the sub-

divided plots are considered as joint owners of the open spaces, whereas

the right of the developer over such open spaces is only restricted to

handing it over to the society or to the local bodies.

40.The 2000 Regulations and 2010 Regulations provide that while

developing a property, minimum area of 15% at different places shall be

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kept as open spaces. However, if the developer is voluntarily keeping

more than 15% of the area as open spaces, and such plans are approved

finally by the appropriate authorities, whether he could under the garb of

revision of plans, alter such condition of open spaces partially or fully for

the purpose of development/commercial use or residential use is the

moot question.

41.The basic arguments on behalf of the Respondents is that during

the revision of the plans submitted by the developer in accordance with

the 2010 Regulations, he has maintained minimum 15% of open spaces

and therefore, there is no illegality committed by him. Similarly, by

approving such revised plans, the authorities did not commit violation of

statutory provisions and therefore, such revision of plans as submitted by

Respondent No.4 cannot be questioned by the Petitioners.

42.However, it has to be kept in mind that once the developer gives a

promise to sub-divided plot owners that he has kept more than 15% of the

land as open spaces for their use, thereby allowing them to purchase the

plots on such assurances, cannot claim revision of development without

permission or no objection of such plot owners specifically for reduction

of open space to minimum 15% as provided under the regulations. We say

so on the ground that once the plans are approved finally by the

concerned authorities, the plot owners become joint owners of the open

spaces to be used by them for recreational, sports activities and thus, their

permission or no objection for conversion of such areas is must.

43.In the case of Bangalore Medical Trust vs. B.S. Muddappa and

Ors.

9

, the Apex Court was dealing with an attempt of the municipal

9 (1991) 4 SCC 54

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authorities to convert the open spaces by constructing a hospital. While

dealing with the statutory provisions and the very purpose of maintaining

open spaces in a development plan or a sub-divided land, it has been

observed in paragraphs 24 to 29 and 36 as under:-

24. Protection of the environment, open spaces for

recreation and fresh air, play grounds for children

promenade for the residents, and other conveniences or

amenities are matters of great public concern and of vital

interest to be taken care of in a development scheme. It is

that public interest which is sought to be promoted by the

Act by establishing the BDA. The public interest in the

reservation and preservation of open spaces for parks and

play grounds cannot be sacrificed by leasing or selling

such sites to private persons for conversion to some other

user. Any such act would be contrary to the legislative

intent and inconsistent with the statutory requirements.

Furthermore, it would be in direct conflict with the

constitutional mandate to ensure that any State action is

inspired by the basic values of individual freedom and

dignity and addressed to the attainment of a quality of life

which makes the guaranteed rights a reality for all the

citizens.

25. Reservation of open spaces for parks and playgrounds is

universally recognised as a legitimate exercise of statutory

power rationally related to the protection of the residents of

the locality from the ill-effects of urbanisation.

26. In Agins v. City of Tiburon, 447 US 255 (1980), the

Supreme Court of the United States upheld a zoning

ordinance which provided `... it is in the public interest to

avoid unnecessary conversion of open space land to strictly

urban uses, thereby protecting against the resultant

impacts, such as ...... pollution, .... destruction of scenic

beauty, disturbance of the ecology and the environment,

hazards related to geology, fire and flood, and other

demonstrated consequences of urban sprawl'. Upholding

the ordinance, the Court said: (US pp. 261-62)

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".... The State of California has determined that the

development of local open-space plans will discourage the

"premature and unnecessary conversion of open-space land

to urban uses" .... The specific zoning regulations at issue

are exercises of the city's police power to protect the

residents of Tiburon from the ill-effects of urbanization.

Such governmental purposes long have been recognized as

legitimate ....

…. The zoning ordinances benefit the appellants as well

as the public by serving the city's interest in assuring

careful and orderly development of residential property

with provision for open-space areas.

27. The statutes in force in India and abroad reserving open

spaces for parks and playgrounds are the legislative attempt

to eliminate the misery of disreputable housing condition

caused by urbanisation. Crowded urban areas tend to

spread disease, crime and immorality. As stated by the U.S.

Supreme Court in Samuel Berman v. Andrew Parker, 99 L

Ed. pp. 37-38 : US pp. 32-33)

".... They may also suffocate the spirit by reducing the

people who live there to the status of cattle. They may

indeed make living an almost insufferable burden. They

may also be an ugly sore, a blight on the community which

robs it of charm, which makes it a place from which men

turn. The misery of housing may despoil a community as

an open sewer may ruin a river.

.... The concept of the public welfare is broad and

inclusive. …. The values it represents are spiritual as well

as physical, aesthetic as well as monetary. It is within the

power of the legislature to determine that the community

should be beautiful as well as healthy, spacious as well as

clean, well-balanced as well as carefully patrolled. In the

present case, the Congress and its authorized agencies have

made determinations that take into account a wide variety

of values..... ". (Per Douglas, J.).

28. Any reasonable legislative attempt bearing a rational

relationship to a permissible state objective in economic

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and social planning will be respected by the courts. A duly

approved scheme prepared in accordance with the

provisions of the Act is a legitimate attempt on the part of

the government and the statutory authorities to ensure a

quiet place free of dust and din where children can run

about and the aged and the infirm can rest, breath fresh air

and enjoy the beauty of nature. These provisions are meant

to guarantee a quiet and healthy atmosphere to suit family

needs of persons of all stations. Any action which tends to

defeat that object is invalid. As stated by the U.S. Supreme

Court in Village of Belle Terre v. Bruce Boraas, 39 (L Ed p.

804 : US p. 9)

".... The police power is not confined to elimination of

filth, stench, and unhealthy places. It is ample to lay out

zones where family values, youth values, and the blessings

of quiet seclusion and clean air make the area a sanctuary

for people".

See also Village of Euclid v. Ambler Realty Company, 272

U.S. 365 1926. See the decision of the Andhra Pradesh

High Court in T. Damodhar Rao & Ors. v. The Special

Officer, Municipal Corporation of Hyderabad & Ors., AIR

1987 AP 171.

29. The residents of the locality are the persons intimately,

vitally and adversely affected by any action of the BDA and

the Government which is destructive of the environment

and which deprives them of facilities reserved for the

enjoyment and protection of the health of the public at

large. The residents of the locality, such as the writ

petitioners, are naturally aggrieved by the impugned orders

and they have, therefore, the necessary locus standi.

36. Public park as a place reserved for beauty and

recreation was developed in 19th and 20th Century and is

associated with growth of the concept of equality and

recognition of importance of common man. Earlier it was a

prerogative of the aristocracy and the affluent either as a

result of royal grant or as a place reserved for private

pleasure. Free and healthy air in beautiful surroundings

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was privilege of few. But now it is a, `gift from people to

themselves'. Its importance has multiplied with emphasis

on environment and pollution. In modern planning and

development it occupies an important place in social

ecology.”

44.The effect of urbanization and more particularly converting

undeveloped land or even changing the use of the land from any other

category to urbanization/development are having its own effects on the

ecology and also on human beings. Conversion of open land into a

developed land is a serious change which takes place in respect of the

status of the said land. It affects the forestation existing in such land

together with other effects. Undeveloped land is having less value as

compared to a developed land. Thus, after getting subjected to

development into layouts, the price of the plots which are permitted to be

used for residential or commercial purposes fetch more value. For this

purpose, the procedure as per the Planning and Development Authority

has to be followed. It is only after a layout is sanctioned, the same can be

utilized for urban development. It is clear from the 2000 PDA

Regulations and the 2010 Regulations which governs the conditions for

the purpose of development, imposes certain conditions while granting

permission for development of a land by making it into a layout. While

doing so, specific care is taken to provide ameneties to the proposed

residents of the said plot owners. Once such layout is finalized and

development takes place, the layout virtually becomes unalterable as the

public amenities such as roads, drainage, open spaces, common utility

places are to be utilized by all the plot owners and also the public who are

visiting the said place. Such public utilities such as roads, open spaces,

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etc. are necessarily to be utilized for the purposes for which the same are

reserved and none else. In an ideal case, plot owners would form a

cooperative society and by using contributed funds, they would keep

places for recreation clean and tidy and useful for recreation only. Such

plot owners can develop such open places into gardens and playgrounds

on such land. The building bye-laws provide that such plots/open spaces

would be handed over to the local authorities so that they would not only

protect them but would also develop them as playgrounds or gardens for

the use of the people residing in the said locality. Thus, not only plot

holders in the said locality, but even outsiders who would come in the

said locality would be entitled to use such land for its specified purpose

such as roads, open spaces for recreation, etc. In other words, right of

users of these open spaces and roads accrued to public at large. No one

can interfere with such right.

45.In the case of Pt. Chet Ram (supra), the Apex Court while dealing

with the permission granted by the Corporation for construction of

building in open space for parks and schools observed in para 6 as under:-

“6. Reserving any site for any street, open space, park,

school etc. in a layout plan is normally a public purpose as

it is inherent in such reservation that it shall be used by

the public in general. The effect of such reservation is

that the owner ceases to be a legal owner of the land in

dispute and he holds the land for the benefit of the

society or the public in general. It may result in creating

an obligation in nature of trust and may preclude the

owner from transferring or selling his interest in it. It may

be true as held by the High Court that the interest which

is left in the owner is a residuary interest which may be

nothing more than a right to hold this land in trust for the

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specific purpose specified by the coloniser in the

sanctioned layout plan. But the question is, does it entitle

the Corporation to claim that the land so specified should

be transferred to the authority free of cost. That is not

made out from any provision in the Act or on any

principle of law. The Corporation by virtue of the land

specified as open space may get a right as a custodian of

public interest to manage it in the interest of the society

in general. But the right to manage as a local body is not

the same thing as to claim transfer of the property to

itself. The effect of transfer of the property is that the

transferor ceases to be owner of it and the ownership

stands transferred to the person in whose favour it is

transferred. The resolution of the Committee to transfer

land in the colony for park and school was an order for

transfer without there being any sanction for the same in

law.”

46.In the case of Shri Gurudatta Co-operative Housing Society Wadgaon

Gupta and Ors. (supra), the Division Bench of this Court (Aurangabad

Bench) relied upon the observations of the Apex Court in the case of Pt.

Chet Ram Vashist (Dead) by Lrs. vs. Municipal Corporation of Delhi (supra)

and observed in para 7 as under:-

“As such, it would be abundantly clear that though

original owner of the lay-out remains owner of the said

open space, his ownership is residuary in nature and said

space is meant for use of the plot holders and general

public. Original owner retains said residuary rights as

trustee of the other lay-out plot holders. However, as

observed by the Apex Court local body or the

Government do not have any right to transfer the open

space in its name without any consideration or nominal

charges. Even section 20 of Maharashtra Land Revenue

Code, 1966 would not come to the aid of the respondents'

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for claiming ownership of the open space. The original

owner is never divested of his ownership.”

47.In the case of Down Mangor Valley, Residents Welfare Association &

another (supra), this Court while dealing with the unauthorized

construction on an open space held in paragraphs 10 and 11 as under:-

“10. We may now deal with the main issue of open spaces

which are reserved as part of a development project. It is

no doubt true that there is some material on record to

indicate that respondents no. 4 to 15 have been occupying

the structures on the said land. The question is whether

because of long existence of constructions which

admittedly are illegal, this Court would be precluded from

exercising its extraordinary jurisdiction in the matter. The

Goa, Daman and Diu Town & Country Planning Act,

1974 is an enactment which provides for development of

land. There are regulations framed under the said Act

whereby a mandatory duty is cast in the matter of

development on the owner/owners of the sub-divided

plots and if transferred to the local authority, by the local

authority, to keep open spaces. Similarly, there are bye-

laws in the matter of building constructions which require

set backs to be maintained when building constructions

are to be put up and further area to be left open, which

cannot be built upon. It has now been judicially

recognized that the need to keep set back areas/open

spaces is a recognition by the State for maintaining

environment and ecology of the area and to ensure for the

people of the area a place for recreation, or leisure, whilst

at the same time serving as green lungs for the area. If the

objective therefore is to provide a better environment for

the residents, can that objective be defeated on the

specious plea that encroachers on the land are residing

there for a long time? Neither the provisions of the

Municipalities Act, nor the provisions of the Town and

Country Planning Act provide for any regularization of

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such encroachment on open spaces. Once an open space,

it has always to be an open space to be used for the

purpose for which it is kept. The issue of open spaces has

come for consideration before Courts in various forms,

whether it be in the form of regulations for land

development of the area, or in the matter of building bye-

laws of various Corporations and Municipalities, which

require maintenance of such open spaces. As far back as

1991 the Apex Court in the case of Bangalore Medical

Trust vs. B.S. Muddappa & Ors., 1991(4) S.C.C. 54,

recognized the need for planned development of the area

and the importance of the open areas and/or reservation

for open areas. Reaching out to new frontiers in the

development of law after the judgment in Udipi

Municipalitys case, the Apex Court held that residents of

an area would have a right in the event the land meant and

reserved for public amenities was sought to be changed

for some other purpose. While considering the law, the

Apex Court noted the developments around the world

and the necessity of the residents of the locality to enjoy

and live in a healthy environment. In paras 24 and 25 of

the judgment the Apex Court observed as under:-

"Protection of the environment, open spaces for

recreation and fresh air, playgrounds for children,

promenade for the residents, and other

conveniences or amenities are matters of great

public concern and of vital interest to be taken care

of in a development scheme......................................

..................................................................................

The public interest in the reservation and

preservation of open spaces for parks and

playgrounds cannot be sacrificed by leasing or selling

such sites to private persons for conversion to some

other user.............…....................................

…..............................................................................

Any such act would be contrary to the legislative

intent and inconsistent with the statutory

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requirements. Furthermore, it would in direct

conflict with the constitutional mandate to ensure

that any State action is inspired by the basic values

of individual freedom and dignity and addressed to

the attainment of a quality of life which makes the

guaranteed rights a reality for all the citizens.

25. Reservation of open spaces for parks and

playgrounds is universally recognised as a legitimate

exercise of statutory power rationally related to the

protection of the residents of the locality from the

ill-effects of urbanisation."

In (Virender Gaur & Ors. vs. State of Haryana & Ors.)

1995(2) S.C.C. 577, the Apex Court noted that open lands

vested in the municipalities are meant for public amenities

of the residents of the locality to maintain ecology,

sanitation, recreation, playground and ventilation

purposes. The buildings directed to be constructed

necessarily affect the health and the environment

adversely, sanitation and other effects on the residents in

the locality. It is in these circumstances that where land

was acquired for a public purpose, the Municipality is

required to use the land for protection and preservation of

hygienic conditions of the local residents in particular and

the people in general and not for any other purpose. The

Apex Court further noted that in providing legislation for

reserving places for parks and open spaces, the legislative

intent has always been the promotion and enhancement of

the quality of life by preservation of character and

desirable aesthetic features. The reservation of open

spaces for parks and playgrounds is universally recognised

as a legitimate exercise of statutory power rationally

related to the protection of the residents of the locality

from the ill-effects of urbanisation.

In (Pt. Chet Ram Vashist (dead) by L.Rs. vs. Municipal

Corporation of Delhi, 1995(1) S.C.C. 47, the issue before

the Apex Court was whether a condition requiring for

vesting of the open space reserved in the Municipality is

legal. The Apex Court observed that reserving any site for

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any street, open space, park, school, etc. in a lay out plan

is normally a public purpose as it is inherent in such

reservation that it shall be used by the public in general.

The effect of such reservation is that the owner ceases to

be a legal owner of the land in dispute and he holds the

land for the benefit of the society or the public in general.

It may result in creating an obligation in nature of trust

and may preclude the owner from transferring or selling

his interest in it. The Corporation by virtue of the land

specified as open space may get a right as a custodian of

public interest to manage it in the interest of the society in

general.

It would therefore be clear that even if what the

second respondent has set out in the affidavit that legal

possession of the land had not been taken by the first

respondent, or title in the land had not vested in the first

respondent, yet by virtue of the fact that the condition

was imposed on the developer, which was accepted, and

the land kept as an open space, and in fact at least by a

letter possession was handed over, the Corporation

became the custodian to maintain it for the purpose for

which it was reserved. It is too late in the day for

respondents no.1 and 2 to argue before this Court and

contend that as they have not come in possession and as

the petition has been filed on that basis, the petition is not

maintainable. The decision in Pt. Chet Ram Vashist (supra)

would be an answer to that argument advanced on behalf

of the respondents. Apart from that the respondent No.1

has a statutory duty imposed by law to see that no illegal

constructions came up within its jurisdiction.

11. The decision in (Dr. G.N. Khajuria & others. v. Delhi

Development Authority & others), 1995 (5) S.C.C. 762,

again was in a matter of land reserved for one purpose

being diverted to another. In that case, a part of a park was

sought to be allotted for the purpose of setting up a

school. The Apex Court held that a place reserved for a

park could not be diverted for any other purpose. The

observations in paragraph 10 of the said judgment are

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relevant in the context of the Legislature conferring power

on the Executive with the hope and object that they will

discharge those statutory powers honestly, faithfully and

in the spirit in which such powers have been conferred by

the statute on public functionaries. It is increasingly

coming to the notice of the courts that public

functionaries, meaning thereby the Executive, which is an

important arm in our constitutional set up, are failing to

discharge their duties by the other constitutional wing,

the Legislature. In this vacuum, increasingly Courts are

being called upon to play the role which the constitutional

fathers perhaps never expected the Courts to discharge.

As there never should be a vacuum, Courts as protectors

of constitutional values and upholders of law, are

presently occupying this vacuum. It is only a strong

Executive discharging its duties, that can help bring the

constitutional scheme on rails. That is required so that

both our democratic set up, as well as the spirit of the

federal constitution is maintained. It is in that context that

para 10 of the judgment needs to be reproduced:-

"Before parting, we have an observation to make.

The same is that a feeling is gathering ground that

where unauthorized constructions are demolished

on the force of the order of courts, the illegality is

not taken care of fully inasmuch as the officers of the

statutory body who had allowed the unauthorised

construction to be made or make illegal allotments

go scot free. This should not, however, have

happened for two reasons. First, it is the illegal

action/order of the officer which lies at the root of

the unlawful act of the citizen concerned, because of

which the officer is more to be blamed than the

recipient of the illegal benefit. It is thus imperative,

according to us, that while undoing the mischief

which would require the demolition of the

unauthorised construction, the delinquent officer

has also to be punished in accordance with law.

This, however, seldom happens. Secondly, to take

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care of the injustice completely, the officer who had

misused his power has also to be properly punished.

Otherwise, what happens is that the officer, who

made the hay when the sun shined, retains the hay,

which tempts others to do the same. This really

gives fillip to the commission of tainted acts,

whereas the aim should be opposite."

A Division Bench of this Court in the case of

(Sindhu Education Society v. Municipal Corporation of

City of Ulhasnagar & others), 2001(2) Bom. C.R. 523 :

2001(1) Mh.L.J. 894, observed that the Municipal

Corporation as the custodian of the rights of the people,

has been given by law the right to enforce its bye-laws by

refusing sanction, preventing constructions and by

demolishing buildings that may violate any law and/or

bye-law. That judgment has reiterated the right of an

affected person, including neighbours, for whose benefit

the open spaces were reserved, to approach the Court and

exercise its extraordinary jurisdiction under Articles 226

and/or 227 of the Constitution.”

48.Finally in paragraph 15, the conclusions drawn therein are very

material which read thus:-

“15. From the above, the following conclusions emerge:-

(i) Open spaces maintained as part of a development

project or pursuant to a building licence, have to be kept

open as per the development permission or building

licence as a condition for development or construction in

terms of the relevant Act, Rules and Bye-laws or other

executive directions;

(ii) These open spaces as referred to in conclusion (i)

cannot be altered, converted or changed without hearing

the beneficiaries or the parties for whose benefit they

were maintained and that too only if there is specific

provision under any enactment, Rules, Regulations or

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other enactment having the force of law, including Bye-

laws;

(iii) Those who have put up constructions or changed

user on such open spaces as referred to in conclusion (i),

can have no equitable consideration in their favour on the

ground that the constructions are existing for a long time,

whether the constructions are legal or illegal, as the open

spaces have been kept for the benefit of the beneficiaries

at the time the development permission or building

licence was granted, in furtherance of their right to life.

This consideration outweighs all other considerations.

(iv) The authorities who grant the development

permission/licence and who have been conferred powers

by any enactment, including Rules, Regulations, Bye-laws,

etc. and who fail to discharge their duties by acting

according to law on complaints being made of illegal

constructions, or on change of user or the like, have to

expeditiously take action in the matter, as otherwise in

terms of law declared by the Apex Court, they are liable

for action, including disciplinary action;

(v) a copy of this Judgment and Order be sent to the Chief

Secretary of the State of Goa, for taking further steps in

the matter of issuing instructions and/or guidelines to all

officers entrusted with these duties, including all local

bodies and Planning Authorities, so that they act upon the

complaints within a specified time, failing which they

ought to be made liable for disciplinary action;

(vi) A copy of the guidelines/instructions so issued by the

Chief Secretary to be placed before this Court within six

months from today; and

(vii) The Chief Secretary to send copies of this Judgment

to all bodies referred to in conclusion (v) and seek their

compliance within six months and thereafter to file a

status report through any officer designated by him.”

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49.The Apex Court in the case of Supertech Limited (supra) observed

that a breach by development/planning authority of its obligation to

ensure compliance with building regulations is actionable at the instance

of residents whose rights are infringed by violation of law since their

quality of life is directly affected by failure of planning authority to

enforce compliance. Hence, law must step in to protect their legitimate

concerns. When the planning and building regulations are violated by

developers more often than not with the connivance of regulatory

authorities, it strikes at the very core of urban planning, thereby directly

resulting in an increased harm to the environment and a dilution of safety

standards. Though these observations are with regard to illegal

construction of two high rise buildings, the aspect of infringement of the

rights of the locality are clearly applicable to the matter in hand.

50.Thus, from the above decisions, what emerges is the fact that once

an open space is shown in the final approved plan, it remains to be an

open space forever and that the original owner of such land though having

residuary ownership in nature, he holds it as trustee of layout plot

holders.

51.The learned Advocate General placed reliance in the case of

Industrial Association of Small Scale Industries (supra) to buttress his

submissions that authorities are having the right to alter such open space

under its powers to alter, modify or revise the plans. However, such

decision would not help Respondents in this matter as it was a case of a

leasehold right of the plots in the industrial area and not of the ownership

rights.

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52.We clearly observe that in the present matter, Respondent No.4

applied for sub-division of Phase I and the said plans were approved. This

happened in the year 2004. Accordingly, the sub-divided plots were sold

to different persons including Petitioners 1 to 4. Thereafter, the individual

plot owners constructed residential houses and started utilising common

facilities and amenities including the open spaces shown in approved plan

2004. Similar is the case with regard to development of Phase II in the

year 2007. The plans for sub-division and development were approved in

the year 2007. Thereafter, Petitioner No.5 along with others purchased

sub-divided plot and accordingly constructed residential premises. The

plot owners of the approved sub-division of 2007 plan started enjoying

the facilities and amenities including open spaces as projected in the

plans.

53.Thereafter, Respondent No.4 applied for amalgamation of Phases I

and II, in the year 2010. It is interesting to note that at the time when

such amalgamation of Phases I and II was applied, the 2000 Regulations

were in force. It is also interesting to note that the open spaces approved

in 2004 plan and 2007 plan were shown as it is in the amalgamation plan.

Thus, while approving 2004 plan and 2007 plan, the concerned

authorities approved finally the open spaces shown in both the said

phases. This aspect was reiterated and confirmed by amalgamation and

final approved plan 2010. Therefore, the plot owners of Phases I and II

purchased their plots with the assurance from the developer that open

spaces shown in such approved plans shall be maintained as it is for the

benefit of the plot owners.

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54.Subsequently, the 2010 Regulations came into force. Somewhere in

2020, Respondent No.4 applied with Respondent No.2 for

deviation/alteration of sub-division layout of the amalgamated plan 2010.

At this stage and as rightly pointed out by the learned Counsel Shri

Nadkarni, the effective area of the plots was substantially altered and

reduced by showing net effective area of 2,31,936 sq. mts. instead of the

earlier net effective area of 2,92,642 sq. mts. This was done by excluding

the area of 46411 sq. mts. which was purportedly falling within 100

metres of the high tide line.

55.In order to demonstrate, the learned Counsel for the Petitioners

has submitted a chart which is as under:-

AREA OF

PLOT (SQ.

MTS.)

EFFECTIV

E PLOT

AREA (SQ.

MTS.)

15% OF

EPA (SQ.

MTS.)

OPEN SPACE

APPROVED

(SQ. MTS.)

2004 (Phase I) 1,06,950 1,01,492 15,223 15,495

2007 (Phase II) 1,92,050 1,60,350 24,052 26,680

2010 (Amalgamated

Phase I & II)

2,99,000 2,92,642 43,896 44,175

2020 (Impugned

Revised Approval).

2,99,000 2,31,936 34,790 34,791

56.It is clearly observed that such exercise was carried out on behalf of

Respondent No.4 in order to reduce the open spaces shown in the earlier

approved plans. It is surprising that Respondent No.2 being the authority

failed to raise objection on these aspects. Be that as it may, the fact

remains that under the garb of revised plans, Respondent No.4 is trying

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to cull out an area of 9384 sq. mts. out of the open spaces for the purpose

of development on the premise that the remaining area left out as open

spaces in the revised plans is more than 15% of the total area of the land as

approved under the regulations.

57.Since it is now observed by the Apex Court and also by this Court

in the decisions cited above that when the open space is kept for the

purpose of use of the plot owners and shown in the final approved plan,

the same cannot be used for any other purpose except for recreation.

Therefore, even if the developer is keeping more than 15% of the land as

open space for the benefit of the plot owners and on that assurance, the

proposed plot owners invest their hard-earned money to have better

facilities and a healthy environment for their livelihood, the developer is

precluded from asking unilaterally for the revised plans thereby reducing

such open spaces to the detriment of the plot owners. We have already

considered the 2000 Regulations under which plan 2004, plan 2007 and

plan 2010 were finally approved. Thus, all the open spaces in Phase I and

Phase II or amalgamated plan 2010 are necessary to be shown in Zone R

and use of such Zone R is prohibited for any other purpose except for

which the same are reserved, as provided in Regulation 4A(2) of the 2000

Regulations.

58.Regulation 5.4 as quoted above further fortifies the rights of the

plot owners when it is provided that such open spaces shall be jointly

held, developed and maintained by the owners of the sub-divided plots

unless they are transferred to the local authorities. Thus, on showing such

open spaces in the final approved plan, it shall be jointly held and

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developed as well as maintained by the owners of such divided plots.

Such right is therefore crystallized in favour of the owners of sub-divided

plots.

59.Reliance placed on the provision of Regulation 6.2 of the 2000

Regulations by the learned Advocate General is misplaced. Such

provision shows that development permission for sub-division of land or

construction of buildings which were already approved by the competent

authority and the development has been completed or part completed in

pursuance of such approvals, final approval or completion certificate shall

be granted based on regulations on which the approval was granted even

though a subsequent change is brought about because of new regulations,

upto a period of six years.

60.In fact, this provision is helping the Petitioners more than the

Respondents as in the present matter, final approved plans of 2004, 2007

and amalgamated plan of 2010 were approved under the provisions of the

2000 Regulations. Even the Petitioners completed construction of their

residential premises on their respective plots in accordance with the 2000

Regulations.

61.The learned Advocate General then invited attention to paragraph

7 of the sale deed and would submit that the purchasers/Petitioners

agreed for the change of the layout/sub-division sanctioned/to be

sanctioned and/or permitted/to be amended by the authorities

concerned from time to time. He further relied upon paragraph 8 of the

sale deed which reads thus:-

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“8. AND IT IS HEREBY AGREED AND DECLARED

by the Purchasers for themselves their heirs,

administrators, legal representatives and assigns that they

shall neither object to nor interfere with the right of the

Vendor to utilize the F.A.R. (Floor Area Ratio)/ further

F.A.R. (Floor Area Ratio) and/or any other benefits etc.,

as permissible in respect of “the said Larger Property”, as

may be approved by the authorities concerned from time

to time, on any part or portion of “the said Larger

Property” excluding that of “the said Sub Plot” and shall

extend their fullest co-operation to the Vendors for

utilization of the same, during the course of the

construction work which may be subsequently

commenced and carried on by the Vendor and such NOC

and consent herein is and shall be deemed always to be

covenant running with the land i.e. “the said Sub Plot”.

62.Such provision of paragraphs 7 and 8 of the sale deed, is

specifically dealing with the utilization of the F.A.R/further F.A.R. of the

larger property and not in connection with common amenities such as

roads, open spaces as approved in the final approved plan. This clause in

the sale deed will not help the developer or the planning authorities in

any way while reducing the open spaces which were already approved

under the plan of 2004, plan of 2007 and finally in the amalgamated plan

of 2010.

63.Though it has been tried to be projected that the development of

the larger property is not complete, it is clear from the record produced

before this Court that the property was developed in phases. First phase

started by the final approval plan of 2004 whereas the second phase

started with the final approval plan of 2007. Both these phases were

amalgamated in the year 2010.

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64.Therefore, admittedly Phase I and Phase II were completed long

back and no further development activity was going on as tried to be

projected. Be that as it may, the main concern is with regard to the open

spaces shown in the final approval plans and more specifically the

amalgamated plan of 2010. The attempt on the part of Respondent No.4

is to convert some of the open spaces from the approved plan of 2010 for

the purpose of commercial use, which in our considered opinion is

certainly affecting the rights of the Petitioners and other sub-divided plot

owners, and not only the civil rights. Such open spaces for recreation and

leisure are serving as green lungs for the area as on the other portions,

construction is already carried out. Thus, the sub-divided plot owners are

having the right to be consulted before asking for conversion of such open

spaces as they become joint holders of such open spaces along with their

sub-divided plots.

65.The 2010 Regulations and more specifically quoted above as

Regulation No.12.4 are not deviating with the 2000 Regulations more so

with regard to open spaces except clarifying with adding other table in it.

These regulations also provide that open spaces shall be deemed to be

zoned as Zone R and shall be governed by the said provisions. Thus, even

under the 2010 Regulations, the Petitioners as sub-divided plot holders

and having undivided share in such open spaces proportionate to the area

of their premises. Conversion of such open spaces fully or partly for any

other purpose and more specifically for commercial purpose is therefore

prohibited under the Regulations which are having statutory force. Thus,

the Petitioners' right to life and to have better amenities is directly

affected by the impugned permission granted by Respondent No.2.

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66.Accordingly, we conclude that the impugned permission/NOC

dated 11.12.2020 to the extent it permits alteration/conversion of 9,384

sq. mts. of open space “A”, “B”, “C” and “D” is illegal and needs to be

quashed and set aside.

67.Accordingly, we allow the petition in terms of prayer clause (A) and

(A1).

68.Rule is made absolute in the above terms.

69.There shall be no orders as to cost.

BHARAT P. DESHPANDE, J. G.S. KULKARNI, J.   

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September 2022

JOSE

FRANCISCO

DSOUZA

Digitally signed by JOSE

FRANCISCO DSOUZA

Date: 2022.09.30

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