Bombay High Court
Manjit Singh Virdi And Ors vs Municipal Corporation Of Greater ... on 19 September, 2024
Author: M.S.Sonak
Bench: M.S.Sonak
2024:BHC-OS:14331-DB
Manjit Singh Virdi & Ors v Municipal Corporation of
Greater Mumbai & Ors
oswp-1463-2013.docx
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1463 OF 2013
1. MANJIT SINGH VIRDI,
aged 59 years of Mumbai, Indian
Inhabitant residing at 12, A/7
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016.
2. HARPREET KAUR HARINDER SINGH VIRDI,
aged 63 years of Mumbai, Indian
Inhabitant, residing at 12, B/7
Navjivan Society, Mori Road,
AMOL
PREMNATH Mahim
JADHAV Mumbai 400 016.
Digitally signed by
AMOL PREMNATH 3. VIKRAMJIT SINGH HARJIT SINGH VIRDI,
JADHAV
Date: 2024.09.20 aged 36 years of Mumbai, Indian
11:19:01 +0530
Inhabitant, residing at 12, B/1
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016. ...PETITIONERS
~ VERSUS ~
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
having its head office at Mahapalika
Marg, C.S.T. Mumbai 400 001.
2. THE MUNICIPAL COMMISSIONER,
Municipal Corporation of Greater
Mumbai, having its office at
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Mahapalika Marg, C.S.T. Mumbai
400 001.
3. ASSISTANT COMMISSIONER G/NORTH
WARD,
having his office at G/North
Municipal Ward Office,
Harishchandra Yewle Marg, Dadar
(West) Mumbai 400 028.
4. STATE OF MAHARASHTRA,
Through Urban Development Dept,
Mantralaya, Mumbai 400 032. ...RESPONDENTS
WITH
INTERIM APPLICATION NO. 440 OF 2019
IN
WRIT PETITION NO. 1463 OF 2013
1. MANJIT SINGH VIRDI,
aged 59 years of Mumbai, Indian
Inhabitant residing at 12, A/7
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016.
2. HARPREET KAUR HARINDER SINGH VIRDI,
aged 63 years of Mumbai, Indian
Inhabitant, residing at 12, B/7
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016.
3. VIKRAMJIT SINGH HARJIT SINGH VIRDI,
aged 36 years of Mumbai, Indian
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Inhabitant, residing at 12, B/1
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016. ...APPLICANTS
In the matter between
1. MANJIT SINGH VIRDI,
aged 59 years of Mumbai, Indian
Inhabitant residing at 12, A/7
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016.
2. HARPREET KAUR HARINDER SINGH VIRDI,
aged 63 years of Mumbai, Indian
Inhabitant, residing at 12, B/7
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016.
3. VIKRAMJIT SINGH HARJIT SINGH VIRDI,
aged 36 years of Mumbai, Indian
Inhabitant, residing at 12, B/1
Navjivan Society, Mori Road,
Mahim
Mumbai 400 016. ...PETITIONERS
~ VERSUS ~
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
having its head office at Mahapalika
Marg, C.S.T. Mumbai 400 001.
2. THE MUNICIPAL COMMISSIONER,
Municipal Corporation of Greater
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Mumbai, having its office at
Mahapalika Marg, C.S.T. Mumbai
400 001.
3. ASSISTANT COMMISSIONER G/NORTH
WARD,
having his office at G/North
Municipal Ward Office,
Harishchandra Yewle Marg, Dadar
(West) Mumbai 400 028.
4. STATE OF MAHARASHTRA,
Through Urban Development Dept,
Mantralaya, Mumbai 400 032. ...RESPONDENTS
APPEARANCES
FOR THE PETITIONERS Ms N V Sanglikar.
FOR RESPONDENT-BMC Mr A Y Sakhare, Senior Advocate
with Kunal Waghmare, i/b
Sunil K Sonawane.
FOR RESPONDENT-STATE Mrs Uma Palsuledesai, AGP.
CORAM : M.S.Sonak &
Kamal Khata, JJ.
c
Reserved On : 12 September 2024
Pronounced On : 19 September 2024
JUDGMENT (Per MS Sonak J):
-
1. Heard learned Counsel for the parties. The Petitioners
seek the following substantial reliefs in this Petition:-
"(a) that his Hon'ble Court be pleased to issue a Writ of
Certiorari or such other appropriate Writ, order or direction
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Greater Mumbai & Ors
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calling for the records relating to the Town Planning Scheme III
(Mahim Division) Final and 1st Variation (Final);
(b) that this Hon'ble Court be pleased to issue a Writ of
Mandamus or such other appropriate Writ, order or direction to
Respondent Nos. 1-3 to hand over vacant and peaceful
possession of Final Plot No. 838, Town Planning Scheme III
(Mahim Division) free from encumbrances to the Petitioners;"
2. Ms Sanglikar, the learned Counsel for the Petitioners,
submits that the Municipal Corporation of Greater Mumbai
("MCGM"), the planning authority under the provisions of the
Maharashtra Regional and Town Planning Act, 1966
("MRTP"), has approved the Town Planning Scheme ("TPS
III") at Mahim Division. She submits that Final Plot No. 838,
measuring 695 sq yds, has been allotted to the Petitioners in
terms of this scheme.
3. Ms Sanglikar submits that this Final Plot No. 838 was
originally Plot No. 88B, measuring 280 sq yds. She submits
that Nusserwanji Jehangir Patel and Piroshaw Jehangir Patel
were the lessees of Plot No. 88B, of which the Government of
Maharashtra was an owner (lessor). She states that this was
by virtue of a lease dated 8 November 1948. She submits that
this lease, dated 8 November 1948, was assigned to the
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Greater Mumbai & Ors
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Petitioners; consequently, even the names of the Petitioners
are entered into the property card.
4. Ms Sanglikar submits that after the TPS III was finalised
and the original Plot No. 88B was finalised as Final Plot No.
838, admeasuring 695 sq yds, Petitioners became entitled to
this Final Plot No. 838, admeasuring 695 sq yds. She
submitted that in terms of Sections 88, 89 and 90 of the
MRTP, the planning authority, i.e., MCGM, not only has the
power but the duty to enforce TPS III and handover the
vacant and peaceful possession of Final Plot No. 838,
admeasuring 695 sq yds to the Petitioners. Ms Sanglikar
submitted that the Petitioners continue in possession, i.e., the
original plot 88B. However, the additional area of 415 sq yds
is encroached upon by some parties, and the MCGM is duty-
bound to clear such encroachment and hand over the peaceful
and vacant possession of this additional area of 415 sq yds to
the Petitioners.
5. Ms Sanglikar submitted that the issue raised in this
Petition is covered by the decision of the Hon'ble Supreme
Court in the case of The Municipal Corporation of Greater
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Greater Mumbai & Ors
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Bombay & Anr v. The Advance Builders (India) Pvt. Ltd. &
Ors1.
6. For all the above reasons, Ms Sanglikar submitted that
the Rule in the Petition may be made absolute in terms of
prayer clauses (a) and (b) of the Petition.
7. Mr Sakhare, the learned Senior Advocate appearing for
the MCGM, submitted that the State of Maharashtra owned
the property. He submitted that a portion of the property
admeasuring 280 sq yds was leased by the State Government
to the Nusserwanji Jehangir Patel and Piroshaw Jehangir
Patel by an indenture of lease dated 8 November 1948 for 30
years along with the buildings and erections thereon. He
submitted that there may have been an assignment of lease
dated 8 November 1948 favouring the Petitioners. He,
however, submitted that even this assignment gave the
Petitioners some leasehold rights to only 280 sq yds, i.e.,
original Plot No. 88B and not to an area of 695 sq yds as is
now claimed by the Petitioners. He submitted that this lease
1 AIR 1972 SC 793
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of 8 November 1948 was for only 30 years, and there is no
clarity on the renewals.
8. Mr Sakhare submitted that the MCGM is authorised to
re-constitute plots while finalising a town planning scheme.
However, that does not mean that an allottee of the original
plot becomes either the owner, the lessee, or the assignee of a
final plot, which, in the present case, is much in excess of the
area of the original plot. He submits that MCGM, the planning
authority, only re-constitutes the plots from the planning
perspective. He, therefore, submits that based upon the final
re-constitution or based upon the original plot 88B being
reflected as final plot 838 in the TPS III, the Petitioners can
neither claim any leasehold rights to any area over 280 sq yds
nor can the Petitioners seek any Writ requiring the MCGM to
evict alleged trespassers or encroaches on government land.
He submitted that the alleged encroachers or trespassers have
not even been impleaded in this petition, though the relief is
to clear them from the final plot.
9. Mr Sakhare submitted that the provisions of Sections
88, 89, and 90 of the MRTP do not entitle the Petitioners to
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Greater Mumbai & Ors
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the reliefs prayed for in this Petition. He submitted that the
decision of the Hon'ble Supreme Court in Advance Builders
(supra) is distinguishable and does not support the
Petitioners' case.
10. Mr Sakhare submitted that the Rule issued in this
Petition may be discharged.
11. The rival contentions now fall for our determinations.
12. The Petitioners have pleaded in the Petition that they
are the legal heirs and representatives of the assignees of Final
Plot No. 838 TPS III. However, the records show that this
statement may be only partially correct but not entirely
correct.
13. Admittedly, the property, which comprises earlier Plot
No. 88B and the Final Plot No. 838, is owned by the State of
Maharashtra (Government property).
14. Further, admittedly, by an indenture lease dated 8
November 1948, the original Plot No. 88B, measuring 280 sq
yds, was leased by the State of Maharashtra to Nusserwanji
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Jehangir Patel and Piroshaw Jehangir Patel for a term of 30
years from 22 November 1945, subject to payment of rents.
15. The record also shows that by an indenture of
assignment dated 27 June 1950, Nusserwanji Jehangir Patel
and Piroshaw Jehangir Patel assigned the lease to this plot of
280 sq yds unto Rutonshaw Nusserwanji Toddywalla and Bai
Tehmina with the structures thereon.
16. The Petitioners have pleaded that Rutonshaw
Nusserwanji Toddywalla died intestate on 27 August 1959.
Similarly, his wife died intestate on 22 February 1971, leaving
behind three sons and four married daughters as their only
legal heirs and legal representatives. There is a pleading that
the option to renew the lease has also been exercised by this
time.
17. The six surviving heirs of Rutonshaw Nusserwanji
Toddywalla and Bai Tehmina, by deed of assignment dated 25
September 1996, assigned/conveyed original Plot No. 88B
together with the structures standing thereon to the
Petitioners. These pleadings are found in paragraph 6.3 of the
Petition, read with synopsis/dates of events against the date
Manjit Singh Virdi & Ors v Municipal Corporation of
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25 September 1996. Thus, the area assigned to the petitioners
was only 280 sq, yards by Deed of Assignment dated 25
September 1996 recorded in the Survey Register for the Town
and Island of Bombay at Exhibit 'A' Page 26 of the Petition.
18. As pointed out by Mr Sakhare, there is no clarity on the
aspect of the State of Maharashtra's renewal of the lease. In
any event, even if we proceed on the premise that such a lease
was renewed, the pleadings indicate that the Petitioners
acquired some rights only in the original Plot No. 88B,
measuring 280 sq yds.
19. Ms Sanglikar did contend that after TPS III entered
force on 1 March 1961 and original Plot No. 88B, measuring
280 sq yds, was reconstituted as Final Plot No. 838,
measuring 695 sq yds, the Petitioners acquired rights in the
Final Plot No. 838, measuring 695 sq yds. However, she could
not substantiate or make good this submission either based on
any documents on record or by way of the provisions of the
MRTP.
20. Ms Sanglikar, in support of her contention that the
Petitioners, under the reconstitution of original Plot No. 88B
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into Final Plot No. 838, had acquired right or interest in the
larger plot admeasuring 695 sq yds even though the deed of
assignment dated 25 September 1996 refers only to
assignment the original Plot No. 88B admeasuring 280 sq yds
firstly referred to the property card at Exhibit 'A' to the
Petition. She submitted that this property card refers to Final
Plot No. 838 TPS III, and the Petitioners' names are entered in
the column of the "person in beneficial ownership".
21. On perusal and evaluation of the property card at
Exhibit 'A' (page 26), it is evident that the names of the
Government of Maharashtra (lessor), the Nusserwanji
Jehangir Patel and Piroshaw Jehangir Patel (lessees),
Toddywallas (holder lessees-joint tenants), the legal
representatives of Rutonshaw Nusserwanji Toddywalla and
Bai Tehmina and the Petitioners appear in the column of the
"name of person in beneficial ownership". Besides, in the
adjacent column dealing with the mode of acquisition by the
present owner, the Nusserwanji Jehangir Patel and Piroshaw
Jehangir Patel are stated to be lessees under an indenture
lease dated 8 November 1948 for the area of 280 sq yds. The
Rutonshaw Nusserwanji Toddywalla and Bai Tehmina were
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Greater Mumbai & Ors
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assigned this area of 280 sq yds vide a deed of assignment
dated 27 July 1950. The legal representatives of The
Rutonshaw Nusserwanji Toddywalla acquired some rights in
the area of 280 sq yds under a declaration dated 21 February
2004. Finally, the Petitioners again acquired interest vide
deed of assignment dated 25 September 1996 to the same
original Plot No. 88B measuring 280 sq yds.
22. The property card is thus consistent with the Petitioners'
pleadings and the various documents referred to in the
pleading about the acquisition of rights to an area of 280 sq.
yards but not 695 sq. yards. There is absolutely nothing in the
property card from which it would be inferred that the
Petitioners acquired the right to any area beyond 280 sq yds
or to the area of 695 sq yds just because of the original Plot
88B being re-constituted as a larger Final Plot No. 838
admeasuring 695 sq. yds under TPS III.
23. Ms Sanglikar secondly referred to Exhibit 'F2' on page
63-B, Exhibit 'F6' on page 63-F, and finally, the Collector's
letter dated 1 July 2019 annexed as Exhibit 'F11" on page 63-
P addressed to the Petitioners reference in Final Plot No. 838
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TPS III. These documents do not even remotely support the
Petitioners case of acquiring rights to any area in excess of
280 sq yds for reasons briefly discussed hereafter.
24. The documents at Exhibit 'F2' and 'F6' do not state or
suggest that the petitioners acquired any rights over an area
over 280 sq. yards. The communication dated 1 July 2019
(Exhibit F11) was the collector's response to the petitioner's
application dated 22 February 2018. This communication lists
the flow of title but does not even remotely state that the
government has allotted to the Petitioners lease of any area
beyond 280 sq yds. This communication, in fact, states that
the original lease deed with Nusserwanji Jehangir Patel and
Piroshaw Jehangir Patel expired on 21 November 1975, about
44 years ago, and no steps have been taken for renewal of
said lease. Thus, this communication dated 1 July 2019, far
from supporting the Petitioner's case, goes against the
Petitioner's case.
25. Since the Petitioners have instituted the Petition on the
incorrect premise that they were entitled to the entire Final
Plot admeasuring 695 sq yds or that they are entitled to any
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area over 280 sq yds, this Petition is liable to fail once this
premise is found wanting. Unless this basic fact was
established, there is no question of reference to the provisions
of Sections 88, 89 and 90 of the MRTP and seek the reliefs
prayed for in this petition.
26. In any event, Section 88 of the MRTP provides that on
and after the day on which the preliminary scheme comes into
force,
(a) All lands required by the planning authority shall,
unless it is otherwise determined in such scheme, vests
absolutely in the planning authority free from all
encumbrances;
(b) All rights in the original plots which have been re-
constituted shall determine, and the re-constituted plot
shall become subject to the rights settled by the
Arbitrator.
27. The Petitioners have not shown that the arbitrator
determined that they were now the lessees in respect of Final
Plot No. 838, measuring 695 sq yds. This is assuming that the
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arbitrator could have made such a determination to the
prejudice of the State of Maharashtra, which is admittedly the
owner of the land, and the parties in occupation of the land
beyond 280 sq. yards for which the petitioners have an
assignment deed. The petitioners have simply but incorrectly
assumed this position and petitioned this Court for the above
reliefs.
28. Section 89 of the MRTP deals with the Power of the
Planning Authority to evict summarily. It provides that:
(1) On and after the day on which a [preliminary
scheme] comes into force, any person continuing to
occupy any land which he is not entitled to occupy
under the [preliminary scheme] may, in accordance
with the prescribed procedure be summarily evicted by
the Planning Authority or any of its officers authorised
in that behalf by that Authority.
(2) If the Planning Authority is opposed or impeded in
evicting such person or taking possession of the land
from such person, the Commissioner of Police, or as the
case may be, the District Magistrate shall at the request
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of the Planning Authority enforce the eviction of such
person or secure delivery of possession of the land to the
Planning Authority as may be necessary.
29. Section 90(1)(a) confers the powers of the planning
authority to enforce the scheme, and this includes among
other things power to remove, pull down or alter any building
or other work in the area included in the scheme which is
such as to contravene the scheme or in the erection of which
or to carrying out of which, any provision of the scheme has
not been complied with.
30. Since the Petitioners have failed to establish that they
are entitled to any right in respect of an area over 280 sq yds,
the Petitioners cannot insist that the MCGM exercise its
powers under Sections 89 and 90 of the MRTP to evict any
alleged encroachers on the balance government land in which
the Petitioners have failed to establish any right title or
interest. The petitioners have pleaded that they already
possess an area of 280 sq. yards, and there is no issue about
that. Therefore, based upon the provisions of Sections 88, 89
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and 90 of the MRTP, no relief can be granted to the
Petitioners.
31. In Advance Builders (supra), the town planning scheme
entered force on 1 January 1959. This was known as the
Bombay Town Planning Scheme, Santacruz No. VI and
covered an area of about 169 acres divided into two parts by
the Ghodbunder Road, which ran from south to north. A part
of this area belonged to the N J Wadia Trust. This was
covered by unauthorised huts, sheds and stables. Removing all
these slums or slum-like structures was one of the objectives
of introducing the town planning scheme. While determining
the rights for the scheme, the arbitrator had made a specific
observation that the construction of new roads, the provision
of public sides/drains and the removal of slums was necessary
for the development of this part of the suburb on proper lines.
32. Despite the above, the MCGM, which was duty-bound to
implement the scheme by removing the slums, sheds, and
temporary structures and providing roads and drains as
directed by the scheme, remained inactive and failed to take
any steps. Therefore, Advance Builders, who had acquired
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rights to this property from the N J Wadia Trust, sought the
writ of mandamus to direct the MCGM to remove all the huts,
sheds, stables and temporary structures and to construct roads
and drains as indicated in the town planning scheme and to
complete the scheme for use within such time as may be fixed
Court.
33. In the above facts, the only question which arose for
determination before the Hon'ble Supreme Court was whether
the MCGM was bound under the law to remove such the
structures, sheds and huts situated in the plots of Advance
Builders/N J Wadia Trust in so far as they contravened the
town planning scheme. On analyzing the provisions of the
Town Planning Act 1954, the Hon'ble Supreme Court held
that the MCGM was so bound.
34. In Advance Builders, there was no dispute that Advance
Builders/N J Wadia Trust were the owners or had an interest
in the property from where they sought the removal of huts,
sheds and other structures. There was no dispute that
removing such huts, sheds, and other structures was one of
the prime purposes of the town planning scheme, and without
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such removal, the scheme could not be enforced. The
arbitrator's determination was also unambiguous. Based on
these admitted or established facts, the Hon'ble Supreme
Court held that the MCGM could not avoid enforcing its
scheme and removing the huts, sheds and structures that were
obstructing the effective implementation of the scheme.
35. The facts in the present case are not comparable to
those in Advance Builders (supra). Here, the Petitioners have
failed to establish any right or interest in the area beyond 280
sq yds. There is no allegation about any encroachments in the
area within 280 sqds. In fact, the Petitioners have their
structure within this area. The TPS III or the arbitrator's
determination does not give Petitioners rights to any
additional area beyond 280 sq yds. Therefore, there is nothing
to show that the parties putting up any structures beyond 280
sq yds were encroachers on Government land or, in any event,
on land to which the petitioners could establish any interest.
Nothing has shown us that removing such structures beyond
280 sq yds was one of the objectives of TPS III. All these
factors are sufficient to distinguish the decision in Advance
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Builders (supra). Therefore, no relief is due to the Petitioners
based on the said decision.
36. The Petitioners, who have established some semblance
of interest in the plot admeasuring 280 sq. yds, cannot, based
on the finalization of a Town Planning Scheme (TPS III),
claim rights in a larger plot admeasuring 695 sqyds and seek
to recover possession of the additional area after clearing all
the structures therein by instituting a Writ Petition. The
Petitioners have failed to establish any right through any
deed, document or agreement and payment of any
consideration for acquiring any right to the plot beyond 280
sq. yds to secure such relief. Consequently, the petitioners
cannot claim to enforce any corresponding duty of the MCGM
in this regard.
37. Incidentally, the petitioners seek relief involving the
MCGM evicting some alleged encroachers or trespassers on
government land over which the petitioners have established
no interest or rights. No details of such alleged encroachments
or trespassing are provided, nor are the alleged encroachers or
trespassers impleaded as parties. Apart from the circumstance
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that the petitioners have made out no case for any relief on
merits, assuming they had, no relief could be granted without
impleadment of such parties who would be directly and most
prejudicially affected.
38. In view of the dismissal of the Writ Petition, pending
Interim Application stands disposed of. For all the above
reasons, we dismiss this Writ Petition. The Rule is discharged
without any orders of costs.
(Kamal Khata, J) (M. S. Sonak, J)
