1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 104 of 2009 1. Prabhavanti Mulji Shah 2. Kiran Mulji Shah both adults Indian Inhabitant having residing at 5, Saras Baug, Sion Trombay Road, Deonar, Mumbai – 400 088 and Office of M/s. Joy Auto Works having address at 35, A-B, S.K. Bole Marg, Old Prabhadevi Road, Near Agar Bazar, Dadar, Mumbai – 400 028. ....Petitioners v/s. 1. Municipal Commissioner of Municipal Corporation of Greater Mumbai through G/North Ward having its office at Mahapalika Marg, Mumbai- 400 001. 2. Assistant Commissioner, G/North, G/North Ward Office Building, Harishchandra Yelve Marg, Dadar (West), Mumbai – 400 028. 3. Sumer Builders Private Limited a Company having its Office at 220, Commerce House, 140, Nagindas Master Road, Fort, Mumbai- 400 023. ....Respondents Ms. Rajni Iyer, Senior Advocate with Mr. Niranjan Lapashiya i/b. Niranjan & Co. for the petitioners. 2 Shri R.A.Dada and Pradeep Sancheti i/b. Y. Bhansali & Co. for respondent no.3. Shri K.K.Singhvi a/w. Ms. Geeta Joglekar for BMC. CORAM:- SWATANTER KUMAR, C.J. & A.M.KHANWILKAR, J. JUDGMENT RESERVED ON: 27TH JULY, 2009 JUDGMENT PRONOUNCED ON: 20th AUGUST, 2009. JUDGMENT (PER KHANWILKAR, J): Rule. Rule made returnable forthwith. Counsel appearing for the Respondents waive notice. By consent, Rule called out and heard. 2. By this Petition under Article 226 of the Constitution of India, the Petitioners are essentially questioning the legality and validity of the Notice dated 19/4/2008 issued by the Assistant Commissioner G/North ward of Municipal Corporation of Greater Mumbai in terms of Section 89 read with Section 165 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the Act for the sake of brevity) and the order passed by the said Authority dated 6/8/2008 directing the Petitioners to vacate the structure standing on Final Plot No. 878 & 879 of TPS-IV Mahim area and hand over the same to the Corporation forthwith failing which demolition action under Section 90 of the Act would be initiated in relation thereto. 3. The Petitioners have adverted to chequered history both with regard to the ownership, right, title and interest in respect of the disputed land being Final 3 Plot No. 878 and 879 as also to legal proceedings in relation to the said property. However, it may not be necessary to advert to each of the said facts and events to answer the grievance of the Petitioners raised in the present Petition which pertains to the Notice issued by the Corporation under Section 89 of the Act and the threatened action of demolition of the structure standing on the plots in question. We shall, however, refer to the relevant facts to answer the controversy brought before us. 4. According to the Petitioners, Final Plot No. 878 and 879 are both adjacent to each other and have had the benefit of two motorable accesses passing through Plot No. 879. One of the motor access initially passed through Final Plot no. 878 and thereafter Final Plot no. 879. It is stated that one Mulji Shah, husband of Petitioner No. 1 and father of Petitioner No. 2, became the owner of Final Plot no. 879 of TPS-IV Mahim admeasuring 1305 sq. yards out of 3640 sq. yards by adverse possession. The said Mulji Shah died on 17th August, 2007 leaving behind him Mr. Mukesh Mulji Shah (son) and Jayashree (daughter) apart from the Petitioners as his heirs and legal representatives. The Petitioner No. 1 claims to be the owner of Plot bearing Final Plot No. 878 admeasuring 1000 sq. yards of TPS-IV Mahim on account of a registered conveyance executed in her favour. 5. It is stated that said Mulji Shah and thereafter his son Mukesh has been carrying on business of automobile garage and connected activities on the said Plots since last more than 46 years. It is common ground that sometime on 24/2/1962 Award was passed under Town Planning Scheme-IV Mahim area under the provisions of MRTP Act. As per the said Scheme, original Plot No. 227 admeasuring 4874.05 was divided into Final Plot No. 878 ad-measuring 4 1000 sq. yards. Thereafter, Final Plot No. 878 was allotted to Javales in lieu of plot of land bearing Survey No. 1223 of original Plot No. 231 admeasuring 1617 sq. yards. Similarly, Final Plot No. 879 ad-measuring 3640 sq. yards was allotted to Jetha Banji in lieu of land Survey No. 1218 of original Plot No. 227 admeasuring 4874.05 sq. yards. The Town Plannning Scheme came to be finalised on 15/8/1963. In the meantime, however, it is stated that a Lease Deed was executed between Khatau Banji as administrator of estate of late Shri Jetha Banji-lessor and predecessor of Petitioners Mulji Shah as lessee on 20/10/1962 in relation to land bearing Cadastral Survey No. 1218, Lower Parel Division corresponding to New Survey No. 1772 of original Plot No. 227. Lease was initially for three years commencing from 15/10/1962 with an option of renewable thereof for further two years. The Petitioners have placed reliance on the proceedings between one Shyam Morarji-administrator for the estate of Late Mr. Jetha Banji who had filed suit for eviction against the predecessors of Petitioners said Shri Mulji Shah and his other sister concerns in connection with land bearing New Survey No. 1772, CS No. 1218. The said Suit had abated on 19/9/1977. According to the Petitioners, since then no one came forward to collect rent or exercise right as lessor or owner or landlord of the predecessor of the Petitioners Shri Mulji Shah. It is in this background the Petitioners claim that predecessor of the Petitioners (Mulji Shah) had become owner of land ad-measuring 1305 sq. yards out of 3640 sq. yards in Final Plot No. 879 of TPS-IV by adverse possession. It is unnecessary to elaborate further except to state that the Petitioners assert that they are in lawful possession of the said portion of land forming part of final Plot No. 879 in their own rights. 6. As aforesaid, in so far as Final Plot No. 878 admeasuring 1000 sq. yards 5 is concerned, the Petitioners assert that Petitioner No.1 has become owner thereof. It is stated that erstwhile owners namely the heirs of the original owner Mr. Javale transferred the said Plot in favour of the Petitioner No.1 initially acquiring 83.4% ownership rights therein by Conveyance dated 16/8/1988 and later on balance 16.66% ownership/rights therein by another registered Deed of Conveyance dated 31/12/2005. In the present proceedings, however, it is not necessary to delve upon the claim of ownership of Petitioner No.1 in respect of Final Plot No. 878 in TPS-IV Mahim. Suffice it to observe that even in respect of Final Plot No. 878 the Petitioners assert that they are in lawful possession thereof in their own rights. 7. It is common ground that Notice under Section 89 of the MRTP Act was issued against the predecessor of the Petitioners Shri Mulji Shah on 29/8/1975 calling upon him to vacate the structures from Final Plot No. 878 so as to enable the Corporation to hand over vacant possession of the plot to the owner/allottee. In connection with the said Notice, the predecessor of the Petitioners filed Suit No. 6544 of 1975 for declaration that the notice was bad in law and illegal and the same should not be acted upon. The said Suit was, however, later on withdrawn with liberty to file a fresh Suit. It is stated that the said Mulji Shah filed another Suit No. 7540 of 1977 amongst others challenging the TP Scheme and for declaration and injunction. However, no relief was granted in favour of predecessor of the Petitioners in the said Suit. Inspite of that, the notice issued under Section 89 of the Act on 29/8/1975 was not taken to its logical end by the Planning Authority. However, another Notice under Section 89 of the Act was issued on 8/8/1984 for removal of the structure standing on Final Plot No. 878. That notice was challenged by Arun Sales Pvt. Ltd. by way of Suit No. 5822 of 1984 for declaration that the said Notice was not binding. It is stated that in the 6 said suit consent terms came to be filed whereby the original owners Javle ultimately agreed to transfer Final Plot No. 878 to M/s. Prabha Builders of which Petitioner No.1 later on became the sole proprietress. According to the Petitioners, the Petitioner No.1 has become the owner of the said Final Plot No. 878 admeasuring 1000 sq. yards consequent to execution of registered Deed of Conveyance dated 16/8/1988 and 31/12/2005. 8. The Petitioners have then referred to other proceedings between the Petitioners and Respondent No.3 who later on purchased Final Plot No. 879 by way of registered Deed of Conveyance dated 28/12/2004 on “as is where is” basis and subject to rights of the existing tenants of the occupants. The predecessor of the Petitioners Mulji Shah and Petitioner No. 1 had filed Suit No. 5570 of 2005 against the Respondent No.3 in which ad-interim relief was granted on 23/12/2005. The interim application was disposed of on 29/4/2006 modifying the ad-interim relief to the extent allowing the said Mulji Shah and Petitioner No.1 to have access No. 1 for foot only, instead of motorable access. The said order was challenged by way of Appeal from order before this Court and eventually before the Apex Court by way of SLP (Civil) No. 1868/2008 which has now been finally disposed of on 2/4/2009. The Appeal has been allowed to the extent indicated in the said Judgment of the Apex Court which directs that the Petitioners would be entitled to a motorable access from the main road to Plot No. 878 through Plot No. 879 in their possession either till the disposal of the Suit or till the construction of the 40 feet wide DP road running adjacent to Final Plot No. 878 by the Corporation in terms of assurance given by it on 7/8/1984 in Writ Petition No. 1667 of 1984 and also in terms of the directions given in Writ Petition No. 2443/2006 filed by the Respondent No.3 herein before this Court. 7 9. Reverting to the challenge in the present Writ Petition filed by the Petitioners herein, the same is in respect of Notice issued by Respondent No.2 on 19/4/2008 under Section 89 read with Section 165 of the MRTP Act. The said Notice was issued on account of the order passed by this Court in Writ Petition No. 2443 of 2006 filed by the Respondent No.3 herein before this Court. By the said Writ Petition, Respondent No.3 prayed for direction to be issued against the Corporation to take steps to construct proposed development Plan Road and to remove the contravening structures admeasuring 753 sq. feet. One of the Petitioners herein was impleaded as Respondent No.6 in the said Writ Petition, because the direction sought for removal of contravening structure was concerning the Petitioner. It would be appropriate to reproduce the order dated 14/2/2008 disposing off the said Writ Petition. The same reads thus:- “1. In this petition filed under Article 226 of the Constitution of India, the petitioners have prayed that the respondent Nos.1 to 5 be directed to take steps to construct the proposed Development Plan road shown in green line on the plan at Exhibit B and to remove the contravening structure admeasuring 753 sq.ft. shown in yellow on the plan at Exhibit E annexed to the Writ petition. Further, the petitioners have prayed to implement the Town Planning Scheme IV and prevent the non conforming use of the structure in contravention of Regulation 24 of the Regulations Controlling the development of the area of final scheme and interim relief in that regard are also prayed. 2. During the course of hearing, the learned counsel for the parties have referred to various documents, maps, as well as 8 pleadings taken up in the Writ Petition even with reference to other litigations pending between the parties which are in respect of Plot No.878 & 879. It is not necessary for us to go into these controversies. Suffice it to say that the parties are ad idem that the Corporation must take necessary steps for removal of the offending structures which are there on the proposed development plan road. 3. We may note that the Corporation has filed an affidavit on record as late as on 5th December, 2007 stating that there are contravening structure between Final Plot Nos.878 and 879 and they had already served a notice in the year 1975 and the Corporation is proceeding with the notice in accordance with law. Learned counsel appearing for the respondent No.6 however stated that the said notice was not in relation to the structures between Final Plot No.878 and 879 and the same was not served upon the said respondent and this pleading on facts is kept open. The Corporation is obviously at liberty to proceed in accordance with law and consider all the controversies raised by the respondent No.6 before us. 4. We dispose of this petition with the observations that the Corporation shall take action as stated in the affidavit relating to structures on plot No.878 and 879 and to which the respondent No.6 would be entitled to take up such pleas as may be judicially available to them. As far as the offending structures on the Development Plan Road are concerned, the Corporation shall take immediate steps in accordance with law. 5. Petition is accordingly disposed of with no order as to costs. ” (emphasis supplied). 9 10. Pursuant to the above decision, the Respondent No.2 issued the impugned Notice on 19/4/2008 to the Petitioners herein. The said Notice reads thus: “WHEREAS the Government of Bombay (now called the Government of Maharashtra) has been pleased to sanction the above Town Planning Scheme under Section 51(1) of the Bombay Town Planning Act, 1954, XXXCII of 1955 on the 20th May, 1963 and further to state 15th August 1963 to be the date on which the said Final Scheme shall come into force, in the Government Notification, Local Self – Government and Public Health Department No.TPB/1963/R dated the 20th May 1963 published in Part-I of the Bombay Government Gazette dated the 26.5.1963 and hereinafter referred to as the said T.P. Scheme. “WHEREAS under section 88(a) of the Maharashtra Regional and Town Planning Act, 1966, hereinafter for the sake of brevity referred to as “the said Act” 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. “AND WHEREAS under Section 88(a) of the said Act all rights in the original plots which have been reconstituted shall determine, and the reconstituted plot shall become subject to the rights settled by the Arbitrator. AND WHEREAS the original holding forming Original Plot No. 227 has been reconstituted under the above Final Scheme into F.P. 878, F.P. 879 and 40’ wide Development Plan Road AND as more particularly delineated in the plans of the Final Scheme. 10 You are aware of the Notice dated 19th August, 1975 issued under NO. TPS/IVB/925/89/1 in respect of O.P.22, to Mulji Shah, Proprietor of Joy Auto Works and Notice dated 8th August, 1984 issued under NO. TPS/IV/227/89/1 to Arun Sales (Pvt.) Ltd., in respect of Original Plot No. 227 of F.P. 878 of the Scheme both of which were subject matter of challenge in Bombay City Civil Court Suit No. 6544 of 1975 and 7540 of 1977 and which suits came to be withdrawn and Suit No. 5288 of 1984 which came to be compromised between the private parties leaving the Notices dated 19th August, 1975 and 8th August, 1984 unchallenged and consequently inforce. AND WHEREAS you continue to occupy the said land and the said structure in Original Plot No. 227 and Final Plot 878 and Final Plot 879 for a non confirming use of motor repair activity and garage in contravention of the Regulations Controlling the development of the area of the above Final Scheme. Now, therefore, you are informed that you are occupying the land and the structure in Original Plot No. 227, Final Plot No. 878 and 879 AND WHEREAS the said land is falling on Final Plot No. 878 and 879 is reserved for residential user and is/or being used for a non-confirming use in contravention of Regulation No. 24 of the Regulations controlling the development of the area of the above Final Scheme and the structure in your occupation is in contravention of the said scheme and hence you are not entitled to occupy the same under the above Final Scheme and further liable to be summarily evicted from the structure which are in contravention of Regulation 24 of the Regulations controlling the development of the area of the Final Scheme by the Planning Authority or any of its officers authorized in that behalf by that Authority, as provided under 11 section 89(1) of the said Act. Now, therefore, I call upon you under Section 89 read with Section 165 of the said Act and the Rules made thereunder to show cause why you should not vacate the structure and the land in your occupation within 30 (thirty) days from the date thereof, failing which, you will be summarily evicted therefrom without any further reference to you in the above matter, as and in the manner provided under the said Act. If you resist to obstruct your eviction from your occupation all necessary actions under section 89(2) of the said Act and the Rules framed for the purpose including inter-alia launch prosecution under section 188 of the Indian Penal Code, will be taken which please note.” (emphasis supplied). 11. The Petitioners appeared before Respondent No.2 in response to the said Notice and made detailed submissions raising diverse contentions which are more or less reiterated in the present Writ Petition. Respondent No. 2 has adverted to the broad stand of the Petitioner in the order passed by him on 6/8/2008. Respondent No.2 has also adverted to the stand taken by the Department as well as the Respondent No.3. After having adverted to the said stand, without analysing the same muchless considering the question about the justness and appropriateness of issuance of notice in question, the Respondent No.2 proceeded to pass only the operative order bereft of any reason in support thereof. It would be useful to reproduce the entire order of the Respondent No. 2 dated 6/8/2008, which is subject matter of challenge in the present Petition. The same reads thus:- “The Assistant Engineer Town Planning, G/North explained that, as per town planning scheme, 12 Bombay City No. IV (Final) (Mahim Area) sanctioned by the State Government the original plot No. 227 was reconstituted into final plots bearing F.P. No. 877,878,879 & 40’ Wide T.P.Road. The F.P.no. 878 stood in the name of Shri Vinayak Chintaman Jawale and F.P.No. 879 stood in the name of Shri Khatau Bhanji. The said F.P. No. 878 & 879 is permitted as per the T.P. Scheme is residential. The said F.P. No. 878 & 879 are affected by one contravening structure which is falling on the boundary lines of two plots then occupied by Shri Mulji Shah, the Proprietor of M/s. Joy Auto Works. The contravening structures in the town planning scheme area are required to be demolished by the planning authority in view of the provisions of Maharashtra Regional and Town Planning Act, 1966, and consequent provisions are made under respective Town Planning Schemes. As per the provisions of aforesaid act the planning authority i.e. The Municipal Corporation is in power to demolished these structures by recourse to the provisions of section 89/90 of the said act and for that matter, legally it is not obligatory to point out alternative accommodation for shifting of the occupants/tenants of such structures. However, the corporation had adopted certain policy to point out suitable accommodation for shifting occupants/tenants of such structures strictly on humanitarian considerations. From the previous file papers it is learnt that M/s. Joy Auto Works have offered alternative accommodation in form of piece of land adm. About 500 sq. yards at Powell’s land, Industrial Estate at Kandivali in lieu of their present premises on Final Plot No. 878 and adjoining plot in Town Planning Scheme IV, Mahim by the corporation in the year 1975, but they did not availed of it and the offer was subsequently cancelled by Ward Officer (Estates), Licence Department. M/s. Sumer Builders Pvt. Ltd. Has filed a writ Petition No. 2443 of 2006 against the Corporation and prayed for to implement the Town Planning Scheme – IV (Mahim) by developing the 13 proposed development plan road and to remove the contravening structure ad. 753 sq. ft. i.e. M/s. Joy Auto Works from the Petitioner’s property, F.P. No. 879, TPS-IV of Mahim Division. The afore stated petition is disposed off by order dated 14.2.2008 with an observation that, the corporation shall take action as stated in the affidavit relating to the structure on Plot No. 878 & 879 and to which respondent No. 6 i.e. M/s. Joy Auto Works would be entitled to take up such pleas as may be judicially available to them. As far as offending structures on the Development Plan Road are concerned, the corporation shall take immediate steps in accordance with law. In view of the aforesaid order a draft notice which was approved by Sr. Council, Shri Walavalkar was forwarded to this office by Assistant Law Officer to issue the parties. Accordingly, this office has issued a notice U/s. 89 of M.R. & T.P. Act to Ms. Prabhavati Mulji Shah and Kiran Mulji Shah. Therefore, Ms. Prabhavati Mulji Shah and Shri Kiran Mulji /shah have to vacate the contravening structure on the said plot as T.P.Scheme. As stated by Shri Kiran Mulji Shah, the plot bearing F.P. No. 878 of Town Planning Scheme No. IV of Mahim Area belongs to him as they had purchased the said plot Previously the adjacent land below the contravening structure was one. The consent regarding the contravening structure was filed in the year 1984 and then the ownership for the same was approved since 1984 till today. As per T.P. Scheme, the Final Plot No. 878 is belongs to Shri Jawale and Final Plot No. 879 is belong to M/s. Khatau Bhimji. The peace and parcel of Final Plot No. 879 was given to us by then owner i.e. M/s. Khatau Bhimaji on lease basis and after that this structure was sold as it is with. Now, the final plot No. 879 is purchased by M/s. Sumer Builders. The documents submitted by Shri Kiran Mulji Shah in respect of the notice structure are as under:- 14 1. Xerox copy of Indenture of lease, duly attested, dated 20th October, 1962, between Khatau Bhanji as the Lessor of the one part and Joy Auto Works consisting of V.H. Shah, S.N.Vira and Mulji Umarshi Shah as partners as Lessee. 2. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758(4 & 4A) land with shed. 3. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758 (6) land with C.I. Shed. 4. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758(7) land with Auto Workshop. 5. Xerox cop;y of letter, duly attested, from the Office of Assistant Assessor and Collector dated 28th November 1997 U/No.ACGN/2459 land with shed inter alia it is mentioned that first date of assessment of structure is prior to 1961-62 in respect of property bearing NO. G-2758(4 & 4-A) land with shed. 6. Xerox copy of letter, duly attested, from the Office of the Assistant Assessor & Collector dated bearing No. G-2758 (6) C.I. Shed. 7. Xerox copy of letter, duly attested, from the Office of Assistant Assessor & Collector dated 28th November, 1997, bearing No. G-2758(7) Auto Workshop wherein inter alia it is mentioned