1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Writ Petition No.7500 of 2007 Anjuman Khairul-Islam Trust, New Bombay Petitioner Vs. The Commissioner, Navi Mumbai Municipal Corporation and ors. Respondents Mr.S.G.Kudle for petitioner. Mr.A.A.Garge for resp.no.1. Ms.S.R.Kumbhat for resp.no.2. CORAM: J.N.PATEL & S.J.KATHAWALLA,JJ. November 17, 2008. ORAL ORDER: 1. Heard learned counsel for the parties. Rule. By consent Rule is made returnable forthwith. Respondents waive service. CIDCO does not want to file any affidavit. 2. The petitioners have invoked the extra ordinary jurisdiction of this Court in order to seek allotment of Plot Nos.113A, 113B and 112 in Sector 14 at Koparkhairane, Navi Mumbai for the purpose of Muslim Kabrasthan. It is the case of the petitioner that he is the General Secretary of a Public Trust registered under the provisions of the Bombay Public Trusts Act, 2 1950 and he is required to file this petition impugning the public notification issued by the respondent no.1 calling for applications for allotment of plots which are the subject matter of the petition and were reserved for Muslim Kabrasthan. The public notification under challenge came to be published in newspaper on 28/9/2007. It is the case of the petitioner that on account of rise in population and particularly that of Muslim community, they are in dire need of burial ground so that the dead persons can be given a decent burial and their last rites can be performed. The petitioner, therefore, made a representation to CIDCO on 7/11/1998 for providing a plot for a graveyard. Accordingly by their letter dated 8/5/2007 which is annexed at Exhibit-D, the In-charge Manager (Town Services) of the CIDCO addressed a letter to the Executive Engineer (Morjbhe/Planning), Navi Mumbai Municipal Corporation on the subject of handing over of plot nos.113A, 113B and 112 in Sector-14, Koparkhairne, Navi Mumbai which according to CIDCO has been earmarked as burial ground and the copies of the letter were also forwarded to the President of the petitioner - Trust so also the President of Anjuman-E-Fakhari (Dawoodi Bohara Jamaat). The said burial ground consisting of Plot 3 Nos.113A, 113B and 112 in Sector-14, Koparkhairne, Navi Mumbai was to be handed over to the two Trusts on their making necessary payments. 3. The petitioner thereafter addressed a letter to the Commissioner, Navi Mumbai Municipal Corporation, CBD-Belpapur, Navi Mumbai for handing over possession of the burial ground and for executing necessary documents. 4. It is the case of the petitioner that inspite of repeated correspondence, they have not been allotted the burial ground at Koparkhairne and that is why they are required to approach this Court. In support of their petition they have annexed various correspondence. This clearly goes to show that the plots in question have to be allotted to the petitioner - Trust and Anjuman-E-Fakhari (Dawoodi Bohara Jamaat) for using as Kabrasthan at Koparkhairne for the two communities. 5. The learned counsel appearing for the petitioner submitted that initially there was some dispute towards sharing of the burial ground between the petitioner-Trust and Dawoodi Bohra Jamaat which 4 are managed by Anjuman-E-Fakhri established by His Holiness Dr. Syedna Mohammed Burhanuddin Saheb registered with Registration No.B/343 (Thane), but then the parties have decided amongst themselves that they have no objection for having burial ground next to each other. It was requested to the respondent - Municipal Commissioner, Navi Mumbai Municipal Corporation, Navi Mumbai to allot Plot No.113A area of 641.773 sq.mtrs. to Anjuman-E-Fakhri (Dawoodi Bohra Jamaat) and Plot Nos.113B and 112 to Anjuman Khairul Islam Trust i.e. the petitioner. The petitioner submits that they have no objections if the allotments are accordingly made. 6. In response to the petition, after much persuasion an affidavit has been filed by Shri Vijay Shantial Nahata, Commissioner of the respondent no.1 who in his reply has given vague and evasive answers to the claim made by the petitioner. It is the case of the respondent no.1 that the NMMC has issued a public notice for inviting applications for operation and maintenance of graveyard by society institution as respondent no.2 - CIDCO has reserved Plot Nos.113A, 113B and 112 in Sector 14, Koparkhairne for burial ground or graveyard and handed over the said plot to 5 respondent no.1 for the said purpose. It is also claimed that there are certain objections raised by adjoining societies for allotment of the said plot for the purpose of burial ground like Soujanya Sahakari Gruh Nirman Sanstha, Ganesh Pancham Co-op. Housing Society, Shri Laxmi Sahakari Gruh Nirman Sanstha and Om Siddhivinayak Sahakari Gruh Nirman Sanstha. 7. It is the case of the Municipal Commissioner that there are three Trusts / Associations who have responded to the advertisement i.e. Ashrfia Welfare Trust, Maharashtra Muslim Sanghatna, New Bombay Shia Isna Ashri Jamat and the petitioner has not applied in response to the said advertisement. Therefore, on these grounds he is not in a position to take any decision in the matter. 8. In so far as the contention raised in the affidavit-in-reply filed by the Municipal Commissioner of NMMC that the plot has been allotted to the Municipal Corporation and it is through them that it has to be given for the purpose of graveyard and that they have issued an advertisement for the same is concerned, the stand taken by the CIDCO in the matter does not support the Municipal Corporation in this 6 regard. The learned counsel appearing for CIDCO submits that their letter dated 8/5/2007 to the Executive Engineer of the Municipal Corporation by In-charge Manager (Town Services) of CIDCO is quite clear and they stand by the same and as the plot belongs to CIDCO and has been allotted to the petitioner - Trust as well as Anjuman-E-Fakhari, the Municipal Corporation is only required to process the same and hand over the plot earmarked for burial grounds to these two Trusts. Therefore, the whole exercise undertaken by the Municipal Corporation in inviting offers from Muslim Trusts for allotment of burial ground cannot be sustained. 9. In so far as other issue is concerned, that is relating to raising of objection by certain societies, this need not deter the Municipal Corporation from handing over the burial ground in favour of the petitioner - Trust and Anjuman-E-Fakhari (Dawoodi Bohara Jamaat), as the land in the Development Plan is admittedly earmarked for burial ground. If at all anybody has any objection, they should move the competent authority in the matter. Our attention has also been drawn to the fact that there is a mosque abutting the plots which have been earmarked for 7 burial ground. Therefore, we do not find that reservation in the Development Plan of the subject land for burial ground for the two Trusts is something contrary to the provisions of the MRTP Act. 10. Therefore, in the aforesaid facts and circumstances, we are inclined to allow the petition. The impugned notice inviting tenders is quashed and set aside. The respondents are directed to hand over Plot Nos.113A, 113B and 112 forthwith after completing the formalities, in favour of the petitioner - Trust as well as Anjuman-E-Fakhari (Dawoodi Bohara Jamaat) as per the agreement which is highlighted in the communicattion dated 8/7/2008 addressed to the Municipal Commissioner, NMMC, Navi Mumbai by authorised signatory of Anjuman-E-Fakhri which arrangement is admitted and accepted by the petitioner - Trust. 11. Rule is made absolute in the aforesaid terms with no order as to costs. (S.J.KATHAWALLA,J.) (J.N.PATEL,J.)