18.j.wp.3624-91 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITON NO.3624 OF 1991 M/s. Mukesh Corporation, ] Teli House, 99, Kharkar Ali, ] Opp.5 No.Aujarati School, ] Thane (West). ] ..Petitioner. Versus 1. The Commissioner, ] Thane Municipal Corporation, ] Thane ] (Copy to be served also in the ] capacity as Planning Authority ] under the provisions of the ] Maharashtra Regional and ] Town Planning Act, 1966.) ] 2. The State of Maharashtra, ] through the Secretary, ] Department of Urban ] Development, Mantralaya, ] Bombay - 400 032. ] ..Respondents. 18.j.wp.3624-91 2 ... Mr.G.S. Godbole, Advocate a/w. Mr.S.S. Kanetkar, Advocate for the Petitioner. Mr.R.S. Apte, Sr. Advocate a/w. Mr.Mahendra Agnekar, Advocate for Respondent No.1. Mr.C.R. Sonawane, AGP, for Respondent No.2. ... CORAM : D.K. DESHMUKH & A.R. JOSHI, JJ. DATED : FEBRUARY 25, 2010. ORAL JUDGMENT : (PER D.K. DESHMUKH,J.) 1. By this Petition, the petitioner seeks a writ of mandamus directing respondent No.1 Thane Municipal Corporation to hand over to the petitioner vacant and peaceful possession of final plot No.493, 496 and 497. According to the petitioner, under town planning scheme made under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the "MRTP Act" for brevity) final plot Nos.493, 496 & 497 have been allotted to the petitioner. According to the petitioner, under the provisions of the MRTP Act, especially under Section 88, it is the duty of the planning authority to put 18.j.wp.3624-91 3 the person who is entitled to possession of the final plot in possession of that final plot. According to the petitioner under Sections 89 & 90 of the MRTP Act, the planning authority has power to summarily evict a person who was occupying the final plot and place the person who is entitled to possession of final plot in possession of that final plot. The petitioner submits that the final plot Nos.493, 496 & 497 have been encroached upon and, therefore, the Corporation in exercise of its power under the MRTP Act should evict those encroachers and place the petitioner in possession of the above mentioned final plots. 2. The petition is opposed on behalf of the Corporation. According to the Corporation, the petitioner was placed by the planning authority i.e. the Corporation, in possession of these plots on 10th April, 1989. This position is admitted by the petitioner. And, therefore, there is no question of the Corporation taking any action against the alleged encroachers for eviction under the MRTP Act. 3. We have heard the learned Counsel appearing for both the sides. For the purpose of deciding this Petition, following can be taken as an admitted positions. 18.j.wp.3624-91 4 That under the town planning scheme, the petitioner was allotted final plot Nos.493, 496 & 497. It can also be taken as an admitted position that in view of the provisions of the MRTP Act, the planning authority was under the duty to place the petitioner in possession of these final plots. It also has to be taken as an admitted position that the petitioner was given possession of the final plots, mentioned above, on 10th April, 1989. 4. In the light of abovereferred admitted positions, now we have to look into the provisions of Sections 88, 89 & 90 of the MRTP Act, which read as under :- "88. On and after the day on which a final scheme comes into force-- (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by Arbitrator; (c) the Planning Authority shall handover possession of the final plots to the owners to whom they are alloted in the final scheme. 89. (1) On and after the day on which a final scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure be summarily evicted by the Planning Authority or any of its officers authorised in that behalf by that Authority. 18.j.wp.3624-91 5 (2) If the Planning Authority is opposed or impeded in evicting such person or taking possession of the land from such person, the Commissioner of Police, or as the case may be, the District Magistrate shall at the request of the Planning Authority enforce the eviction of such person or secure delivery of possession of the land to the Planning Authority as may be necessary. 90. (1) On and after day on which a final scheme comes into force, the Planning Authority may, after giving the prescribed notice and in accordance with the provisions of the scheme,-- (a) remove, pull down or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection of which or carrying out of which, any provision of the scheme has not been complied with; (b) execute any work which it is the duty of any person to execute under the scheme, in any case where it appears to the Planning Authority that delay in the execution of the work would prejudice the efficient operation of the scheme. (2) Any expenses incurred by the Planning Authority under this section may be recovered from the person in default or from the owner of the original plot in the manner provided for the recovery of sums due to the Planning Authority under the provision of this Act. (3) If any action taken by the Planning Authority is questioned, the matter shall be referred to the State Government or any officer authorised by the State Government in this behalf; and the decision of the State Government or of the officer, as the case may be, shall be final and conclusive and binding on all persons." 5. Perusal of the provisions of Section 88 shows that if the final scheme comes into force, the planning authority is under a 18.j.wp.3624-91 6 duty to hand over possession of the final plot to the owner to whom they are allotted in the final scheme. The possession that has to be handed over obviously is vacant and peaceful possession of the plot. Perusal of the provisions of Sections 89 & 90 shows that by these provisions obligation has been casted on the planning authority to place the owner in possession of the final plot. After the town planning comes into force if final plot is alloted to a person but the plot is in possession of some other persons, then under Section 89 the planning authority has been conferred with power to evict such person summarily from the final plot. Section 90 also confers powers on the planning authority to get the property vacated so that it can be handed over to the person who is entitled to the same. Therefore, the powers that are available to the planning authority under Sections 89 & 90 are to be exercised by the planning authority in aid of its responsibility of handing over vacant possession of the final plot to the owner. In our opinion, therefore, in this case the petitioner cannot invoke the powers of the planning authority under Sections 89 & 90, because in the present case, it is an admitted position that the petitioner was handed over possession of the final plots on 18.j.wp.3624-91 7 10th April, 1989. The petitioner in para-2 of the Petition in categorical term has stated that the plots were given in his possession on 10th April, 1989. The petitioner has contended that when he was given possession of the land, most of the land was encroached upon and, therefore, an assurance was given to him by the Corporation which is the planning authority that the Corporation will take steps to remove the encroachers. However, no document has been placed on record to substantiate this case of the petitioner that at the time of handing over possession in the year, 1989 the Corporation had given any assurance to the petitioner to evict the alleged encroachers. In our opinion, in law, it was not possible for the Corporation to give such assurance. Because, once the Corporation hands over possession of the final plot to the owner then it is for the owner to protect his possession and he cannot then run to the Corporation to evict any person from the final plot, which according to the owner, are encroached. In our opinion, even the question whether the alleged encroachments were in existence before the petitioner took possession or the encroachments have came up after the petitioner came in possession is also a disputed question of 18.j.wp.3624-91 8 fact, because if the encroachments are made after the possession of the plots was given to the petitioner, there is no question of the Corporation taking any action to remove the alleged enchroacher. In our opinion, the Petition is totally misconceived and no relief can be granted to the petitioner. Petition, therefore fails and is dismissed. Rule is discharged. No order as to costs. (D.K. DESHMUKH,J.) (A.R. JOSHI, J.)