-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.1172 OF 2008 NO.1172 OF 2008 NO.1172 OF 2008 Ghanshyam Leeladhar Karia and anr. ...Petitioners v/s The Municipal Corporation of City of Nashik and others ...Respondents Mr G.S. Godbole with Mr Ashok Tajane for Petitioners. Mr R.S. Apte for Respondent Nos.1 and 2. CORAM : D.K. DESHMUKH AND J.P. DEVADHAR JJ. DATE : 4TH AUGUST 2008. -2- P.C. :- 1. By this petition, the petitioners who claim to be owners of final plot No.47 of Town Planning Scheme, Nashik No.II (final) are seeking a writ of mandamus for delivery of possession of the entire plot to the petitioners. Admittedly, the Town Planning Scheme No.II came into force in the year 1986. For the first time, the petitioners, who claim that they are entitled to possession of entire plot No.47, addressed a notice to the Corporation - Planning Authority in September 2004 for delivery of possession. The Corporation did not deliver possession because according to the Corporation, final plot No.46 belongs to the State Government and the land which the petitioners claim is being used as Christian Cemetery. Therefore, the petitioners have filed this petition. Relying on a judgment of the Division Bench of this Court in the case of The Municipal Corporation of Greater Bombay v/s The Advance Builders (India) Pvt.Ltd., reported in 1969 BLR (Vol.63) 657, the petitioners claim that the Court can issue writ of mandamus directing the Planning Authority to deliver possession of the final plot. There can be no quarrel with the proposition if there is a definite final plot to which the petitioners are entitled under the Town -3- Planning Scheme. As the Town Planning Scheme itself has statutory force, a writ of mandamus can be issued. But, in this case, it will not be appropriate to entertain this petition because several disputed questions of facts would arise. The first disputed question of fact that will arise about the claim of the petitioners that they own entire final plot No.47. The sale deed of the land was executed by the original owners in 1991 i.e. five years after the Town Planning Scheme came into force in 1986. The sale deed does not mention final plot number in the Town planning Scheme, what is mentioned is the old survey number and entire land of that survey number is not transferred to the petitioners, only portion thereof is transferred. According to us, the question that arises is whether the petitioners are entitled for entire final plot No.47 or a part thereof and this is purely a question of fact. 2. The second question that may arise is whether the petitioners have delivered possession of that part of survey No.560 which did not go into former, the final plot No.47. Unless these disputed questions are decided, the petitioners are not entitled to a direction for delivery of possession of final plot No.47. What is interesting to be noted here is that the petitioners have already developed part of survey No.560 and have constructed a building thereon. In our opinion, -4- considering that the petition involves several disputed questions of facts, it will not be appropriate for this Court to entertain this petition. Petition is rejected. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( J.P. DEVADHAR J.)