1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1331 OF 2002 1. Mr.Venkat Timmaya Pal 2. Smt.Bhanumati Hasmukhlal Divecha 3. Smt.Shobha Laxman Tambe 4. Smt.Smita Yeshwant Parvade 5. Vijay Pandurang Tambe (4 & 5 are legal heirs of Smt.Chandravati Babu Tambe who died on 19-01-2002), All Residing at Tulsi Baug, O.P.No.108, L.T.Road, T.P.S.III, Borivali (W), Mumbai – 400 092. .....Petitioners V/s. 1. The Bombay Municipal Corporation, duly incorporated under Bombay Municipal Corporation Act, 1888 and having its office at Mahapalika Marg, Fort, Mumbai – 400 001. 2. Municipal Commissioners of Greater Mumbai, Mahapalika Bldg., Opp. C.S.T. Station, Mumbai – 400 001. 3. The Asstt. Municipal Commissioner, Municipal Corporation for Greater Mumbai, Borivali (W), Mumbai – 400 092. 4. Executive Engineer (Town Planning), Municipal Market Bldg., S.V.Road, Borivali (W), Mumbai – 400 092. 5. M/s.Sambhav Builders, 5, Gyan Nagar, L.T.Road, Borivali (W), Mumbai – 400 092. 2 6. State of Maharashtra, (State Minister of Urban Development and Borivali Police Station) 7. Senior inspector of Police, Borivali (W) Police Station, Borivali (W), Mumbai – 400 092. ..... Respondents Mr.J.G.Damani, for the petitioners. Mr.D.A.Nalawade, Govt. Pleader, for the State. Mr.S.Gorvadkar i/by Bharat Mehta, for respondent No.1 Mr.K.N.Gaikwad, for the B.M.C. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : JUNE 25, 2009 ORAL JUDGMENT (Per P.B.Majmudar, J. ) : 1. By way of this petition, the petitioners have prayed that appropriate writ directions may be issued ordering and directing respondent No.4 to take immediate action to restore the premises/structures of the petitioners to their previous position so as to make it habitable. It is also prayed that notices issued by respondent No.2 to the petitioner, particularly mentioned in Exhibit J, be treated as bad in law and non-enforceable and not binding upon the petitioners. It is the case of the petitioners that they are residing on plot bearing Survey No. 237, City Survey No.287-A, of Village Eksar, Taluka Borivali as tenants of R.D.Trust. According to the petitioners respondent No.5 took the said 3 property for development in the year 1973. Thereafter, respondent No.3 entered into an agreement for permanent alternative accommodation on ownership basis in lieu of tenanted premises with the petitioners. It is also the case of the petitioners that temporary alternative accommodation was also given to the petitioners at the corner of O.P.No.108 and subsequently, in the year 1979, respondent No.5 entered into an agreement with the petitioners for providing them the permanent alternate accommodation in the proposed building and shifted the petitioners at the corner of O.P.No.108, having corresponding F.P.No.210, 211 and 206 (Part), as per City Survey Record. 2. It is the case of the petitioners that in September 1998, the petitioners were informed by respondent No.3 by a letter that the petitioners are in unauthorized occupation as per the notices issued earlier under Section 89 and 90 of M.R.T.P. Act and that the petitioners have failed to prove their bonafide occupation and have proposed the action for eviction and demolition. 3. Initially, the petitioners have filed writ petition bearing No. 2316 of 1998, challenging the notices issued under Section 89 of the M.R.T.P. Act. The said writ petition was disposed of directing the petitioners to file an appeal to the State Government. The said appeal was disposed of by the Ministry of Urban Development Department vide 4 its order dated 07-01-2002. The said order is produced at Page 87 of the compilation. It has been held in the said order that the structures on the aforesaid plots are totally unauthorized, nor showing the rights of the present petitioners under the sanctioned scheme. Moreover, possession of the plot is to be given to the Allottee. The appeal was accordingly dismissed. 4. The petitioners subsequently filed another writ petition bearing No.1692 of 2002, wherein it was found that the structures are on final plot No.206 and not on F.P.No.208. The said petition was accordingly dismissed on the aforesaid ground. 5. In the meanwhile, respondent Nos.1 to 4 with the help of respondent Nos.6 & 7 forcibly entered into O.P.No.108 and demolished the structures. The petitioners have thereafter, filed this petition with a prayer that they may be restored to their previous position. 6. The learned counsel for the petitioners submitted that the petitioners were lawfully occupying the premises and their possession is required to be protected. In view of the agreement entered into by the respondent No.5, the petitioners were entitled to alternate accommodation and respondent No.5, who according to the petitioners, have entered into an agreement with petitioners, should abide by the said agreement regarding giving alternative accommodation. In this behalf, the learned 5 counsel for the petitioners has relied upon a Memorandum of the Government of Maharashtra, which is dated 30-08-1997. Relying upon the said Memorandum, alternative accommodation is prayed for by the petitioners to the extent of 225 sq.ft. as per the Memorandum. 7. The learned Govt. Pleader for the State submitted that the prayers made in this petition are totally different than the claim which was pressed into the service at the time of filing of this petition. He further submitted that since it has been held by an appropriate authority in an appeal that the structures of the petitioners are unauthorized, the prayer made in Para 32(a) cannot be granted. The learned counsel for the respondent No.5, on the other hand, submitted that the fact about execution of the agreement between respondent No.5 and petitioners is not correct. He further submitted that in any case, the petitioners should approach Civil Court to establish their rights and title over the plot in question. 8. We have heard the learned counsel appearing in the matter and have also gone through the papers forming part of the petition. The learned counsel for the petitioners submitted that the present petitioners are not in a position to point out a particular survey number of which they were in possession. It is not in dispute that ultimately the structure in question has been removed. So far as Final Plot No.208 is concerned, the 6 petitioners are not claiming any rights over the same and the building has already been constructed there and occupied by various occupants. In an appeal as aforesaid, the authority has found that the petitioners were in unauthorized occupation and since, in our view, petitioners are not in a position to make any case as to point out that they were occupying which portion and as to in which manner, no relief can be granted by this Court by exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The learned counsel for the petitioners submitted that it is his case that he was occupying portion in plot No.108. It is required to be noted that the location of the said portion is very much in dispute. Earlier, writ petition filed by the petitioners was rejected by this Court which was filed in connection with final Plot No.208 and this Court found that the petitioners have no case regarding Final Plot No.208. The petitioners themselves are not sure as to in which final plot their earlier structure was there. In view of the serious dispute in connection with the aforesaid factual aspect and as well as in view of reasoning given by the appellate authority, wherein petitioners failed to prove their title over the plot in question and since the petitioners are already been removed, no relief can be given to the petitioners in this petition. This is not a case in which this Court would like to interfere with the notices issued by the respondent No.3 in its extra-ordinary jurisdiction under Article 226 of the 7 Constitution of India. So far as the agreement allegedly entered into by the respondent No.5 with the petitioners is concerned, if at all there is any grievance in this behalf, it is for the petitioners to take appropriate proceedings before the appropriate Civil Court for specific performance of the agreement if any. We do not find any substance in the petition. The writ petition is accordingly dismissed. Rule discharged. ( R.M.SAVANT, J. ) (P.B.MAJMUDAR, J.)