Shankarlal Khimji Patel And Anr. vs The Municipal Corporation Of ...
2001 Latest Caselaw 259 Bom

JUDGMENT

D.B. Bhosale, J.

1. The petitioners are seeking directions to the respondent Nos. 1 and 2, to handover the vacant and peaceful possession, free from all encumbrances of Final Plot No. 256 under the Town Planning Scheme, Ghatkopar No. III, to the petitioners after removing all unauthorised structures thereon and the unauthorised occupants namely the respondent Nos. 3 to 6, therefrom by invoking the powers under Article 226 of the Constitution of India.

2. The Respondent No. 1 is a statutory body constituted and incorporated under the Bombay Municipal Corporation Act, III of 1888 (hereinafter "Corporation Act" for short). Respondent No. 2 is the Commissioner of the Municipal Corporation of Greater Bombay, appointed by the State Government and is an administrative head of respondent No. 1. The Respondent Nos. 3 to 6 are the occupants of the chawl standing on the land bearing Survey No. 226. Hissa No. 2 and original Plot No. 181, which forms part of Filial Plot No. 236 of Ghatkopar Town Planning Scheme No. III. The petitioners are successors of the original landlord one Hiralal Jethabai of the Final Plot No. 236 in dispute. The Respondent Nos. 1 and 2 framed and enacted Town Planning Scheme of Ghatkopar No. III (hereinafter "said scheme" for short) under the Maharashtra Regional and Town Planning Act, 1966. The said scheme came into effect from 1st April, 1959. Hiralal Jethabai was owner of land bearing Survey No. 225, Hissa No. 2 (part), whose plot was given original Plot No. 176 (part). In lieu of the said original Plot No. 176 (part) he was allotted 3 Final Plots; one of them was Final Plot No. 236 admeasuring 697 square yards (hereinafter "Final Plot No. 236" for short). Under the said scheme Hiralal became the owner of Final Plot No. 236. On 4th May, 1981, the said plot was conveyed by the son of original landlord/allottee to the petitioner by the conveyance, duly registered with the Sub-Registrar. The Final Plot No. 236 in the possession of the petitioner since May, 1981, is in unauthorised occupation of the respondent Nos. 3 to 6.

3. The petitioners, state that respondent Nos. 1 and 2 are responsible to enforce the said scheme and hand over, to the petitioners, the vacant possession of the Final Plot No. 236. It is the case of by the petitioners, that the respondent Nos. 1 and 2 have failed and neglected to perform their statutory duty under section 88 of the Maharashtra Regional and Town Planning Act, 1966. The petitioners claim that they being owner of the Final Plot are entitled to all rights and benefits which Hiralal was entitled for under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter "M.R.T.P. Act" for short) and the Corporation Act. Section 88 imposes statutory obligation on the Town Planning Authority to give the vacant, unencumbered, quite and peaceful possession of the Final Plot to the parties to whom such plots are allotted, including successors, if any, of the original allottee. The petitioners, being successor/transferee have been deprived of the statutory rights conferred on the original owner to get the Final Plot No. 236, vacated by removing structures of the respondent

Nos. 3 to 6. The petitioners have specifically stated In the petition that respondent No. 1 and 2 have given the vacant and peaceful possession of the Final Plots to the several other allottees under the said scheme and thereby they have been discriminated by not putting petitioner in vacant possession of Final Plot No. 236. In the circumstances, by means of this Writ Petition, the petitioners have claimed the quite, vacant and peaceful possession free from encumbrances of the Final Plot under the Town Planning Scheme, Ghatkopar III, after removing and demolishing the unauthorised structures belonging to respondent Nos. 3 to 6 thereon.

4. Respondent Nos. 1 and 2 have failed to file counter-affidavit, in reply to the petition. So far as respondent Nos. 3 to 6 are concerned, the counsel appearing for them did not argue for want of Instructions. Hence we proceed to consider the claim of the petitioners on the basis of the petition. Its annexures and oral submissions made by the learned counsels appearing for the petitioners and respondent Nos. 1 and 2.

5. Mr. Shah the learned counsel appearing for the petitioners contended that it is obligatory on part of the Planning Authority to hand over possession of the Final Plot to the petitioners, who are successors of the original owner to whom the Planning Authority allotted the Final Plot in the Final Scheme. In other words, whether the petitioners step into the shoes of the original owner to whom the Planning Authority allotted Final Plot No. 236 in the Final Scheme and can seek statutory benefits provided under the provisions of Section 88 of the M.R.T.P. Act.

6. Section 88 of the Maharashtra Regional and Town Planning Act, 1966 deals with the effect of the Final Scheme. It reads as follows :-

On and after the day on which a Final Scheme comes into force :-

(a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest 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.

In the Instant writ petition, the Original owner Hiralal, was succeeded by his son, who In turn conveyed the Final Plot No. 236 to the petitioners in 1981. Therefore, the question arises as to whether clause (c) of section 88 covers the successor of the owner to whom the Planning Authority allotted the Final Plot No. 236. The petitioners undisputedly are the transferee of the Plot, who purchased Final Plot No. 236, by registered Conveyance dated 4th May. 1981. In other words, the rights conferred on the original owner and allottee of the Final Plot, whether could be exercised by the successor or not, is the question requires to be determined.

7. The Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. Where, the Statute imposes the duty, the performance or non-performance of which is not a matter of discretion. The learned counsel appearing for the petitioners argued that the Sub-section (c) of Section 88 of the Maharashtra Regional and Town Planning Act, 1966, does cover the successor also. He placed reliance on the Judgment of the Apex Court in the Municipal Corporation of Greater

Bombay and Ors. v. Advance Builders (India) Pvt. Ltd. and Ors. The similar issue was considered by the Apex Court which dismissed the appeal filed by the Corporation challenging the Judgment of this Court. In that case, writ of mandamus was prayed for, directing the Corporation to remove all huts, sheds, stables and temporary structures from 41 plots involved in the said petition. The learned Single Judge of this Court, held that under Town Planning Act and the Scheme, it was primary responsibility of the Corporation which was local authority, to implement the Scheme and accordingly, the writs as prayed were substantially granted. In the appeal, the Appellate Bench of this Court, confirmed the order of the learned Judge with minor variations. The appeal carried to the Apex Court was dismissed.

8. The facts of the instant petition, and of the reported case are somewhat similar. In the case before Supreme Court, the disputed plots, belonging to M. J. Wadia Trust were in possession of the Receiver. In 1962, the Receiver transferred total area of 69,625 sq. yards comprising 41 Final Plots being Nos. 106 to 116 and 118 to 147 to respondent Nos. 1 to 3 and one Gardi. Gardi sold his plots in due course to respondent Nos. 4 and 5, thereby they became owner of 41 Final Plots. The respondent Nos. 1 to 5, the purchasers in the reported case, thereafter filed the writ petition seeking direction to the Corporation to remove all the huts, sheds, stables and temporary structures from 41 plots referred to above. Instant writ petition, has also been filed by the purchaser of the Final Plot seeking identical relief. In view of this, we are of the opinion, that the petitioners can take recourse to Section 88(c) of the Maharashtra Regional and Town Planning Act and claim benefits which are conferred on the owners of the Final Plot as allotted in the Final Scheme. In other words, we hold that the word "owner" in Sub-section (c) of Section 88 means the successor or transferee of the Final Plot, who is also entitled to exercise the right to get possession of the Final Plot from the Planning Authority. Where, the Statute Imposes, the duty, the performance or non-performance Is not the matter of discretion and therefore, the mandamus could be granted ordering that to be done which the Statute requires to be done. In view of this we are inclined to allow the writ petition.

9. In our opinion, the statutory obligations Imposed on the respondent Nos. 1 and 2 under Sub-section (c) of Section 88 have not been performed. Under the provisions of the M.R.T.P. Act, the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and is under obligation to perform its duty. However, the submissions of the learned counsel appearing for the respondent Nos. 1 and 2, that during the period, from the date of implementation of the Scheme till filing of the writ petition and even thereafter the Government has floated different schemes, which might come in the way of the Corporation to implement the orders of the Court, cannot be Ignored. Although the counsel appearing for the respondent Nos. 1 and 2 could not name a particular Scheme, we find considerable force, in the contention raised on behalf of the respondent Nos. 1 and 2, particularly in view of delay in approaching the Court. In the result, we allow the writ petition and pass the following order :

1. That Respondent Nos. 1 and 2, do remove within one year from today the unauthorised chawl in occupation of the respondent Nos. 3 to 6 and/ or other structures temporarily or permanent standing or lying on the petitioners' Final Plot No. 236, subject to the Government Scheme/policy, if any, which might come in the way of the Corporation In carrying out the directions issued in the nature of mandamus.

2. Rule is disposed of in above terms with no orders to costs.