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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.657 OF 2001
Vallabhdas Cursondas Natha Turst, a Public )
Trust registered under Bombay Public Trust Act, )
1950 having their office at Vadgadi House, )
328-332, Samuel Street, Mandvi, Mumbai 400 009 )..Petitioners
Versus
1. The Municipal Corporation of greater Mumbai )
a body incorporated under provision of Bombay )
Municipal Corporation Act, having its office
ig )
At Mahapalika Bhavan, Mahapalika Marg, )
Fort, Mumbai 400 001 )
2. The Municipal Commissioner )
having its office at Mahapalika Bhavan, )
Mahapalika Marg, Fort, Mumbai 400 001 )
3. The Assistant Engineer (Town Planning) )
'B' Ward, Central Office, Babula Tank Cross Lane, )
Mumbai 400 009 )...Respondents
Mr. G.V.Murti with Mr. A.K.Saxena and Mr. Sukhjeet Singh Kohli i/b Ms
Neeta Gala for the Petitioners
Mr. A.Y. Sakhare Senior Advocate with Ms P.A.Purandare for the
Respondents
CORAM : P.B.MAJMUDAR &
R.M. SAVANT, JJ.
DATE : 11th OCTOBER, 2011.
ORAL JUDGMENT (PER SHRI R.M.SAVANT J.) :-
1 By the above Petition filed under Article 226 of the
Constitution of India, the Petitioners inter alia seek directions against
the Respondents to the effect that they be directed to implement the
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Town Planning Scheme of Bombay City I (Mandvi & Elphinstone
Estate) as finalized and sanctioned by the Government of Maharashtra
in regard to final plot No.136 of Town Planning Scheme of Bombay
City I (Mandvi & Elphinstone Estate). The Petitioners further seek a
relief that the Respondents be directed to hand over to the Petitioners
vacant and peaceful possession of final plot No.136 admeasuring
about 134.7 sq.yards free from all encumbrances and pay
compensation amount of Rs.45,122/- together with interest @ 18% p.a.
from the date of the award till realization within a specified period. The
Petitioners by prayer clause (bb) have sought quashing and setting
aside of the property tax bills issued by the Respondents in respect of
the property bearing Ward No.B-1393(1) and situated at 37-45, Kazi
Sayed Street, Masjid Bunder Road, Mumbai since 1-11-1975 till date.
As the prayers adverted to above discloses the issue as regards
implementation of the Town Planning Scheme in respect of the area in
question.
2 The draft scheme was published on 11-12-1948 under the
then Town Planning Act, by virtue of the powers conferred by the
Section 29 of the said Act. The then Government of Bombay under
Section 29 of Bombay Town Planning Act appointed an Arbitrator. The
Arbitrator Mr. G.J.Desai declared his Award on 31-3-1954 and
forwarded the proposals to the president of the Tribunal for further
action. In terms of the Award of the Arbitrator original plot No.153
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admeasuring 197 sq.yds. was earmarked for road widening and in lieu
thereof the Petitioners were allotted the final plot No.136 admeasuring
134.7 sq.yds The Petitioners were also directed to be paid an amount
of Rs.45,122 as compensation. On the Bombay Town Planning Act
1954 coming into force the said final scheme promulgated under the
Town Planning Act, 1915 was adopted. Thereafter, the Maharashtra
Regional and Town Planning Act, 1966 was promulgated, by virtue of
Section 165 of the said Act, the actions / decisions taken under the old
Town Planning Act, 1954 were saved. The Petitioners were in
possession of the original plot No.153 admeasuring 197 sq.yds.
Towards enforcing the said Town Planning Scheme the Respondents
took possession of the structure standing thereon without allotting the
Final Plot No.136 which was awarded to the Petitioners by the
Arbitrator in his Award as also compensation amount. Thereafter
certain facts transpired which in our view, are not directly germane to
the issue raised in the above Petition.
Suffice it to say, that the tenants of the structure on plot No.
153 had filed a suit against the Respondent Corporation. The said suit
came to be decreed in favour of the Respondent No.1 Corporation
thereby the status of the Respondent No.1 as owners of the property
came to be confirmed.
3 As indicated above, the main substantive relief sought in the
Petition as regards the allotment of final plot no.136 admeasuring 134.7
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sq.yds. which has been allotted to the Petitioners by virtue of the award
of the arbitrator in the course of implementing the Town Planning
Scheme in question, as also the payment of sum of Rs.45,122/- as
compensation to the Petitioners. The allotment of the said final plot No.
136 has been inordinately delayed though the possession of plot No.
153 owned by the Petitioners has been taken by the Respondent No.1
as long back in the yar 1975. In so far as, the allotment of final plot No.
136 is concerned, the reasons why the same has yet not been allotted
to the Petitioners, has been mentioned in the Affidavit in reply filed on
behalf of the Respondent No.1 by Mr. Sanjay Sambare, Assistant
Engineer. The sum and substance of the reasons is that prior to the
allotment certain steps are required to be taken by the Respondent
No.1 Corporation which includes demarcation etc., This petition was
heard from time to time for final hearing. On an earlier occasion looking
to the delay in allotting final plot No.136 to the Petitioners we had
asked the Learned Senior Counsel appearing for the Respondent No.1
Corporation to fix a schedule or a time frame within which the final plot
No.136 could be allotted to the Petitioners. Pursuant to our directions,
the Learned Senior Counsel has tendered to us the letter dated
11-12-2011 of the Assistant Commissioner ‘B’ Ward, in which letter, the
schedule / time frame within which the final plot No.136 could be
allotted to the Petitioners, has been mentioned. We reproduce the
schedule which has been mentioned in the said letter as under:
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"(1) Demarcation of plot affected viz
O.P.No.153 to 158 & 229A F.P.No.136 to 138 for
demarcation this office has already sent reminder
to City Survey office and further this office will
sought co-operation from Ex.Eng.(TP), Ex.Eng.
(DP), Ex.Eng.(T & C) etc.
Approximate time required for the
above work is 60 days.
(2) To issue necessary notices to the
occupants of the buildings of the above plots and
to hear their grievances to scrutinize their
documents etc.
Approximate time required for the
above work is 90 days.
(3) To conduct the meeting with the 27
tenants of the affected buildings.
Approximate time required for the
above work is 60 days.
Due to Diwali & X-Mas vacation this
office may not able to contact the residents of
building. Hence the time required to complete this
task is about Eight months.”
The said letter is taken on record and marked ‘X’ for
identification.
4 Upon perusing the said letter, copy of which was handed
over to the learned Counsel for the Petitioners, the Learned Counsel
for the Petitioners Shri Murti fairly states that though the period of 8
months has been mentioned in the said letter dated 11-10-2011, the
Petitioners would not have any objection if this Court grants further
time to the Respondent No.1 for handing over the said plot No.136. In
view of the said statement made by the Learned counsel for the
Petitioners, in our view, considering that the Petitioners have already
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waited for more than 25 years for allotment of the said final plot No.
136. It would be just and proper to extend the time mentioned in the
said letter dated 11-10-2011 from 8 months to one year for handing
over the said plot as also the compensation of Rs.45,122 with interest
as per the Award. Accepting the said schedule mentioned in the letter
dated 11-10-2011, we hope and trust that the final plot No.136 would
be handed over to the Petitioners. We direct the Respondent No.1
Corporation to hand over possession of the final plot No.136 latest by
31-10-2012 as also the payment of companesation.
6 In so far as, prayer clause (bb) of the Petition is concerned ,
it is not possible for us to go into the said aspect in this Petition. We,
therefore, deem it appropriate to direct the Petitioners to make a
representation to the Corporation for refund of the property tax that the
Petitioners have paid from the year 1975 to 2001 when the petition was
filed, annexing the relevant documents in support of the said claim
including the decree of the Civil Court as also the tax receipts. On such
representation being received, the Respondent No.1 Corporation to
consider the same and pass appropriate order in accordance with law
as regards the refund claimed by the Petitioners of the property tax
paid by them from 1975 to 2001. In the event, some amount is to be
refunded, the same may be done expeditiously by the Respondent
No.1.
7 In so far as the amount of Rs.3,67,516 is concerned, for the
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period April 2001 to March 2012, i.e. post filing of the above Petition, in
the light of the aforesaid facts, the Corporation may not take steps to
recover the said amount.
8 Rule is accordingly made absolute to the aforesaid extent
with parties to bear their respective costs.
(R.M.Savant, J.) (P.B.Majmudar, J.)
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