1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5665 OF 2009 M/s.D Dahyabhai & Company : Petitioners. Versus The Municipal Corporation of the City of Thane and anr. : Respondents. Mr A A Kumbhakoni, a/w Ms.Gauri Godse for the Petitioner. Mr.A R Pitale for the Respondent No.1. Mr. V S Masurkar, GP, a/w Mr. V P Malvankar, AGP, for Respondent Nos.3 and 4. Mr.G W Mattos, AGP, for Respondent No.2. CORAM : S B MHASE & R M SAVANT, JJ. DATE : 21st July 2009 P.C. 1. It is an admitted fact that about 10 Hectares of surplus vacant land held by the Petitioner from S.No.59, Chitalsar, Manpada, Thane had been allotted by the Government to the Maharashtra Housing & Area Development Authority unit Konkan Housing Board for housing programme vide Government Letter dated 6.2.1987. It appears that physical possession of 88,971 sq.mtrs of land was taken by the Konkan Housing Board in 1988. This action was challenged by the landlord i.e. Petitioner by filing Writ Petition No.1927 of 1988 which was dismissed. 2 Against the said dismissal order the landlord filed Special Leave Petition (Civil) No.6550 of 1988 wherein the Apex Court passed an order to maintain status quo. While the said SLP was pending, the Appellant/Petitioner gave a proposal relying upon Government Circular No.APL-1088/(2797)/III, dated 28.8.1988 that the land in question should be apportioned by 60 : 40 i.e. 60% land shall be taken by the Government and 40% land will be retained by the landlord-Petitioner. It appears that the said proposal was accepted by the Government, thereby 60% land came to the Government and 40% land remained with the landlord- Petitioner. 2. The Petitioner-Company, whilst challenging the reservation in favour of MHADA in the development plan and the rejection of its proposal for development of the plot which has come to its share, is trying to claim that there was a tenant in the said land and the area of the tenant admeasuring 8000 sq.mtrs should be considered from the area of MHADA. 3. It is well settled that on acquisition the land which is to come to the Government has to be free from all encumbrances. Therefore, the 60% of land which is to come to the Government has to be free from all 3 encumbrances and therefore the encumbrance of tenant cannot be foisted upon the land which has come to the share of the Government under the settlement. If we try to interpret the settlement between the parties, in a manner which the Petitioner-Company desires, the Petitioner-Company gets 40% land plus land of the tenant which would be contrary to the decision taken by the Government. One thing is certain that under the settlement, the Government must get 60% land free from all encumbrances and, therefore, the whole attempt to foist the encumbrance of the tenant upon the land of the Government , which is ultimately given to MHADA, is something which we do not appreciate because the Government in good spirit, considering the difficulty of the landlord, has settled the matter with allotment in the ratio of 60:40. Thereafter again foisting encumbrance of the tenant upon the land of the Government cannot be countenanced. To that extent we are of the view that the Petition as filed is not bonafide. 4. The Petitioner has also challenged the reservation in the development plan in favour of MHADA. We find that the said reservation has been imposed by following proper procedure under the Maharashtra Regional Town Planning Act 1966. Apart from that, nothing has been pointed out to us by the learned counsel for the Petitioner to show in 4 what manner the said reservation is bad and illegal. Therefore, so far as the challenge to the reservation in favour of MHADA is concerned, we do not find any substance in the said challenge. The Petitioners’ proposal for development has been rejected in view of the reservation in favour of MHADA. As indicated above, the area of 8000 sq.mtrs which is to go to the tenant, would have to be from the 40% land allotted to the Petitioner. Therefore, once the Petitioner hands over the said land of 8000 sq. mtrs there should not be any impediment in considering the petitioner’s proposal for development in respect of the balance of the plot in its possession. We, therefore, do not find any merit in the above Petition which is accordingly dismissed. Sd/- sd/- [R.M.SAVANT, J] [S.B.MHASE, J]