1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2162 OF 2000 ... Divine Child High School ...Petitioner v/s The Municipal Corporation of Gr.Mumbai & ors. ...Respondents ... Mr.A.G.Kothari for the Petitioner. Ms.S.M.Modle for the BMC. Mr.Agasti Vibhute i/b Khaitan & Jaykar for the Respondent No.3. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 9th September, 2009 P.C.: 1. By this petition the Petitioner, which is a school, challenges the allotment of plot of land to the Respondent No.3. It also seeks a direction to the Corporation to 2 allot that plot of land to the Petitioner. 2. The learned Counsel appearing for the Petitioner fairly stated before us that the Petitioner cannot claim a writ for allotment of plot of land to the Petitioner. Most that the Petitioner would be entitled to claim is that the case of the Petitioner should be considered for allotment of land. So far as challenge to allotment of land is concerned, perusal of the record shows that the land is a piece of land which is non-buildable and which can be used only as garden and play ground. It appears that by order dated 23-5-1997 the land was alloted to the Respondent No.3 for the purpose of development and maintenance of municipal play ground. The communication dated 26-5-1997, in our opinion, makes the position clear. It reads as under: 3 Please refer to your letter dated 11-4-1997 regarding above subject matter. In this regard, this is to inform you that by direction of D.M.C.(Z-III) under No.DMC/Z-III/7030 dated 23-5-1997 your proposal for development & maintenance of municipal play ground bearing C.T.S.No.92-A ½, S.No.71, H.No.3(pt) Village Chakala, Andheri (E) has been accepted. You are now required to depute to see this office for completing the further formalities in consultation with S.G. s Dept. 3. After allotment there is an agreement entered into between the Respondent No.3 and the Corporation dated 28th May, 1997. As per that agreement the responsibility is on the Respondent No.3 to develop the land as municipal play ground and it is clear from the terms of the agreement that the Respondent No.3 has been permitted to put up only two hoardings on the land. The learned Counsel for the Petitioner states that he has no objection for putting up any number of 4 hoardings by the Respondent No.3 on the land. But the learned Counsel for the Petitioner states that the children from the Petitioner- school, which is on the adjoining plot, also be allowed to use the play ground. 4. In our opinion, looking at the terms of the agreement entered into between the Respondent No.3 and the Corporation, it is clear that the Respondent No.3 is only a developer and maintains it as a municipal play ground and therefore the children from the Petitioner-school, obviously as the members of public, are entitled to use the play ground. But the Petitioner cannot claim monopoly in favour of the children from his school in using the play ground. In our opinion, considering that the Petitioner has neither placed before us the order by which allotment has been made nor has it challenged 5 in the petition the agreement dated 28th May, 1997, no relief can be granted to the Petitioner. However, it is made clear that if according to the Petitioner the Respondent No.3 is using the land in a way, which is contrary to the terms of the agreement, it is open to the Petitioner to approach the Municipal authority and make a grievance about it to them. If such an application is made, obviously, the Municipal Corporation shall look into it and make an order on that application in accordance with law. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)