1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1302 OF 1998 Mangalaya Co-Operative Housing Society Limited. .. Petitioner V/s. The State of Maharashtra & Ors. .. Respondents Mr. Nikhil Sakhardande with Mr.B.Manek i/b.Wadia Gandhy & Co.for the Petitioner. Mr.A.A.Kumbhkoni i/b. L.M.Acherya for Respondent Nos. 10 to 19. CORAM : D.K.DESHMUKH and R.G.KETKAR, JJ. DATED : 15TH SEPTEMBER,2009. P.C. By this petition, the petitioner, which is a Co- Operative Housing Society, is seeking a direction to 2 Respondent Nos. 1 to 7 to take effective steps to remove the unauthorized encroachment made on final plot No.93, Town Planning Scheme III, Mahim area. According to the Petitioner, unauthorized encroachment has been made by Respondent Nos.10 to 15. It is the case of the Petitioner that final plot No.93 in Town Planning Scheme was part of plot No.97. When the Town Planning Scheme was sanctioned, Plot No.93 was allotted to the predecessor in title of the Petitioner. It is common ground that on a part of final plot No.93, the Petitioner has constructed a building which is in possession of the Petitioner. They want the Authorities to take action for removal of encroachment which according to them is unauthorized encroachment by Respondent Nos.10 to 15. Final Town Planing Scheme admittedly was sanctioned in 1961. Predecessor in title of the Petitioner became entitled to Plot No.93 because of final Town Planning Scheme . What are the ingredients of Final Town Planning Scheme are specified under section 88 of the Town Planning Act. Section 88 reads as follows : “88. Effect of final scheme - (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest 3 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 hand over possession of final plots to the owners to whom they are allotted in the final scheme.” 2. Perusal of section 88 (c) says that a duty is cast on the Plaining Authority to hand over possession of the final plot to the owners to whom they are allotted. Duty to hand over possession of final plot may include duty on the Plaining Authority to hand over vacant possession of the final plot. It is common ground that the Petitioner is in possession of plot No. 93 of Town Plaining Scheme and they have put up a building. We asked the learned counsel appearing for the Petitioner as to when and under what terms either the Petitioner or Predecessor in title of the Petitioner received possession of the final plot No.93. The possession receipt executed for handing over possession of final plot No.93, will determine what was the status of final Plot No.93 when possession thereof was handed over to the Petitioner or the predecessor in title of 4 the Petitioner. The learned counsel took time to take instructions. After taking instructions, the learned counsel informed that the Petitioner is neither in a position to state the date as to when possession of final plot No.93 was received by the Petitioner or predecessor in title of the petitioner from the Planning Authority or under what terms the possession was handed over of final plot No.93 by the Planning Authority. 3. In our opinion, in the absence of this information and the documents, it is not possible for us to decide whether the alleged unauthorized encroachment was in existence before possession of the final plot was handed over by the Planning Authority or the encroachment has been made subsequent thereto. Because we will be in a position to issue directions to the Planning Authority to remove the encroachment and hand over possession of the plot to the Petitioner only if we find that possession has not yet been handed over by the Planning Authority. But, if the Planning Authority has already handed over the possession as it appears in this case, it will not be possible for this Court to issue any directions to the Planning Authority to remove any structure for the benefit of the Petitioner. If the alleged 5 encroachment occurred after the petitioner or its predecessor in title receive the possession, there is no obligation on the Planning Authority to remove the encroachment pursuant to the Town Planning Scheme. Hence, no relief can be granted. Writ Petition is dismissed, rule is discharged with no order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)