AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.164 OF 2010 IN WRIT PETITION NO.927 OF 2007 Bajirao Bhandari & Ors. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents Mr. R.A. Dada, senior counsel with Mr. D.D. Madon i/b Mr. Sanjeev Sawant for the petitioners. Ms. Geeta Shastri, A.G.P. for the State. Ms. K.R. Punjabi for the B.M.C. CORAM: MRS. RANJANA DESAI & R.V. MORE, JJ. DATED : 9TH SEPTEMBER, 2010. P.C.:- 1. The present petition is filed by the petitioners praying that the respondents be directed to delete the reservation of the BEST Housing on the suit property forming part of Survey No.12/4 (part), CTS No.98/B (part), AJN 2 Final Plot Nos.439 and 445, TPS III of Borivali, Mumbai. 2. In the petition, the present notice of motion has been taken out by the petitioners for the following reliefs : “(a) Peding the hearing and final disposal of the Writ Petition No.927 of 2007, this Hon'ble Court be pleased to restrain the Respondents from changing the nature of the suit property and doing any sort of construction and utilizing the property for any purpose whatsoever on the Final Plot No.439 + 445, TPS III, Borivali; (b) Pending the hearing and final disposal of this Notice of Motion, this Hon'ble Court be pleased to restrain the Respondents from changing the nature of the suit property and doing any sort of construction and utilizing the property for any purpose whatsoever on the final plot No.439 + 445, TPS III, Borivali.” 3. Here, we are concerned with a short controversy. The case of the petitioners is that the ancestors of the petitioners were erstwhile owners of land bearing Survey AJN 3 No.12, Hissa No.4, Original Plot No.256, Final Plot Nos.439 and 445, C.T.S. No.98/B, TPS III, Village and Taluka Borivli, Borivali (West), Mumbai, which originally admeasured 6639 sq. meters. It is the petitioners' case that the acquisition proceedings were initiated in respect of 2600 square meters of land out of the 6639 sq. meters for the BEST Housing/Police Station. The acquisition proceedings were challenged by the petitioners by filing Writ Petition No.2729 of 1987. By judgment and order dated 10/1/2003, a Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party, disposed of the said writ petition. We may reproduce the operative part of the said order dated 10/1/2003. “6. The learned counsel for the petitioners next submitted that although the impugned Award was made in respect of the area of 2600 sq. mt., the acquiring body namely respondent no.5 – Bombay Electric Supply and Transport Undertaking has taken possession of the entire plot of land admeasuring 6639 sq. mt. from CTS no.98. Mr. Korde learned counsel appearing for the respondent no.5 – BEST fairly stated that the respondent AJN 4 no.5 has no objection for joint measurement of the property being S.no.12, Hissa no.4 by the Cadestral Surveyor and possession of land in excess of 2600 sq. mt. Will be returned to the SLAO. We direct the SLAO to carry out joint survey through the Cadestral Surveyor and to deliver possession of excess land, if any, to the petitioners within 12 weeks. It is made clear that this order shall not prejudice the rights of the respondent nos.6 to 10.” 4. Thus, an area of 2600 square meters was to be retained by the BEST. It is the contention of the petitioners that in TPS III, 3747.40 sq. meters is shown in the name of the petitioners. The petitioners have been allotted Final Plot Nos.439 and 445. The short question is whether the said area of 2600 sq. meters which the BEST is to retain is to be deducted from 6639 square meters or from 3747.40 square meters. If it is to be deducted from 3747.40 square meters, the petitioners will be entitled to an area of only 1147 square meters. 5. It is the case of the petitioners that in spite of the AJN 5 order dated 10/1/2003, an area of 2600 sq. meters is wrongly deducted from the Final Plot Nos.439 and 445 of TPS III, Borivali, which is allotted to the petitioners instead of from the area of 6639 sq. meters of C.T.S. No.98. According to the petitioners, the BEST has illegally started unauthorized construction by encroaching on the petitioners' land. Hence, the petitioners have taken out the present motion for the reliefs mentioned hereinabove. 6. We have heard learned counsel for the parties at some length. They have reiterated the stand taken by them in their respective pleadings. 7. In his affidavit in reply, Mr. Shrikant Nene, Estate Manager of respondent 5 has stated as under : “3. I say that under the then City Survey No.98 (part) admeasuring 6639 sq. meters, an area admeasuring 3,747.40 sq. meters has been and is under the reservation in the revised sanctioned Development Plan for BEST Housing. I say that even after the reconstitution of the then City Survey AJN 6 No.98 (part) under the Town Planning Scheme, Borivali-III, the reconstituted Final Plot Nos.439-445 admeasuring 3747.40 sq. meters has been and is duly earmarked as reserved for BEST Housing in accordance with the sanctioned revised Development Plan, under the Town Planning Scheme, Borivali-III, also. Annexed at Page No.12 of the Compilation of Documents on behalf of Respondent No.5 (BEST) is a copy of letter dated 21.8.1998 issued by the Assistant Engineer (D.P.) of Respondent No.6 to the Respondent No. 5 enclosing a Plan (Page No.13) showing the reservation for BEST Housing on the sanctioned revised Development Plan. 4. I say that out of the aforestated total area of 3,747.40 sq. meters of the then City Survey No.98 (part) [equivalent to the aforestated Final Plot No.439-445], (reserved for BEST Housing under the revised sanctioned Development Plan), land admeasuring 2,600 sq. meters was subsequently acquired for Respondent No.5 under the Award dated 23.9.1986, passed by the Special Land Acquisition Officer-(7), under the provisions of the Maharashtra Regional & Town Planning Act, 1966 read with Land Acquisition Act, 1894. I say that said area of 2,600 sq. meters was taken possession of by Respondent No.5 in the year 1986 itself and subsequently a wall was also built by Respondent No.5 enclosing the said area of 2,600 sq. meters.” AJN 7 8. In his affidavit, Mr. Sanjay Kurvey, Deputy Director of Town Planning, Greater Mumbai, has stated as under : “4. I say that in the final development Plan of 1956 the CTS No.98 (pt) bearing City Survey No.12 Hissa No.4 was shown reserved for Housing along with the owner survey numbers vide site 1054. In the sanctioned revised development plan 1981 or R Ward which came into effect from 13th July, 1993 Survey No.12, Hissa No.4 CTS No.98(pt) of the Original Plot No.256 and Final Plot no.439-445 Borivali was shown as reserved for reservation for Bombay Electricity Supply and Transport Undertaking (hereinafter referred to as BEST Undertaking) Housing along with the other Survey Numbers. 5. I say that due to this reservation, the SLAO (7) had issued Notification under Section 126(2)(4) of the MRTP Act, 1966 read with Section 6 of the Land Acquisition Act for acquiring area admeasuring 2600 sq. meters. From the Survey No.12, Hissa No.4, CTS No.98(pt) and accordingly passed an Award under Section 11 of the Land Acquisition Act on 23rd September, 1986 for an area admeasuring 2600 sq. mtrs. And pursuant to the said Award SLAO (7) handed over the acquired land to the BEST Undertakings. I say that the Petitioner had challenged the Award dated 23rd September, 1986 in Writ Petition No.2729 of 1987 in the Hon'ble AJN 8 High Court. The Hon'ble High Court by Order dated 10th January, 2003 in Writ Petition No.2729 of 1987 directed the SLAO to carry out joint survey from cadastral Surveyor to deliver possession of excess land if any to the Petitioner. Copy of the said order dated 10th January, 2003 is annexed as exhibit to the Notice of Motion. Pursuant to the said Order dated 10th January, 2003 a joint measurement was done by the City Survey Officer on 4th April, 2003 and it was found that the City Survey No.98(pt) admeasuring 6639 sq. mtrs was given original plot No.256 in the town planning scheme Borivali III and under the said Scheme from this Original Plot No.256 the final plot No.439-445 was carved out admeasuring 3787.40 sq. mtrs which was allotted to the petitioner herein under the Town Planning scheme and the remaining an area of admeasuring 2918.sq. Mtrs of the original plot No.256 under the Town Planning Scheme, Borivali III had gone into town planning road and in other final plot No.456 and 457. The petitioner herein who was the owner of the original plot No.256 as per the decision of the Arbitrator under the Town Planning Scheme, Borivali III had got compensation determined for the loss of that area of the Original Plot No. 256 which had merged into road and other final plots as set out in the Form 1 of the MRTP Act. 6. I say that City Survey Officer also found that as per Town Planning Scheme, Borivali III, the Petitioner holder of the land to the extend of 3747.40 sq. AJN 9 mtrs. And out of that land as per Award dated 23rd September, 1986 the SLAO had acquired 2600 sq. mtrs. And the remaining area of 1147.40 sq. mtrs which is not acquired but is shown under the sanctioned devel9opment plan reserved for BEST Housing. Out of this remaining area of 573.93 sq. mtrs was in possession of the petitioner and remaining area admeasuring 573.93 sq. mtrs was in possession of the petitioner and remaining area admeasuring 573.50 sq. mtrs was in possession of BEST. Hence, as per the joint measurement plan on 24th December, 2003, BEST handed over an area admeasuring 573.50 sq. mtrs. to the Petitioners. Copy of the possession receipt is annexed by me in my earlier affidavit dated 2nd August, 2007. Thereafter, the BEST has applied to the State Government for acquisition of the remaining land and the said application is still pending. In the meantime, the petitioner had made application to delete the reservation of the BEST Housing from the said City Survey No. 12, Hissa No.4, CTS No.98(pt) but the Respondent No.1 informed the petitioner by letter dated 9th May, 2007 the said land is still required by the BEST and therefore reservation cannot be deleted and it appears that BEST has already moved by the letter dated24th April, 2007 acquisition of the said land.” 9. Considering the nature of the rival contentions and AJN 10 factual matrix, it is not possible to grant interim relief as claimed in the notice of motion at this stage. For the present, in our opinion, the following order will meet the ends of justice. 10. Any construction that may be made by respondent 5 on the portion marked on the map (Ex-1 to the affidavit of Mr. Sanjay Kurvey, Deputy Director of Town Planning, Greater Mumbai) as - “OUT OF FINAL PLOT I) AREA UNDER RESERVATION – 2600.00 SQM. II)AREA UNDER POSSESSION OF PETITIONER 1147.40 SQM.” will be subject to the final decision in the present petition. It is made clear that if any construction is made by respondent 5, respondent 5 shall not be entitled to claim any equity. Notice of motion is disposed of. 11. Liberty to the parties for move for early date of hearing of the petition. [MRS. RANJANA DESAI, J.] [R.V. MORE, J.]