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1982 Supreme(Bom) 77
IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari, J.
Dinkar Ramchandra Honale others .... Appellant.
Versus
Municipal Corporation of Greater Bombay another .... Respondents.
Appeal from Order No. 713 of 1981, decided on 4-3-82.
Advocates Appeared :
S.V. Joglekar, for Appellants.
S.D. Gavaskar, with M.V. Shetty, N.V. Kamath P.B. Khandekar, for respondents.
S.V. Shetty, for Sanghi Motors.
The rights in the original plots of the private owners are extinguished upon the coming into force of the final scheme and it is the statutory duty of the Corporation to put the allottee of the final plot in actual physical possession.
Headnote:
TOWN PLANNING - SCHEME - EFFECT - RIGHTS IN ORIGINAL PLOTS EXTINGUISHED - DUTY OF PLANNING AUTHORITY TO PUT ALLOTTEE IN ACTUAL POSSESSION - NOTICE UNDER SECTIONS 89 AND 90 OF THE ACT - VALIDITY - JURISDICTION OF CIVIL COURT - BARRED.
Fact of the Case:
Plaintiffs filed a suit claiming possession of disputed land allotted to M/s. Sanghi Motors Ltd. under a Town Planning Scheme. The Corporation issued notices to the plaintiffs under sections 89 and 90 of the Maharashtra Regional Town Planning Act, 1966, to vacate the land. Plaintiffs challenged the notices in a suit, contending that they were in possession of the land and that the notices were illegal.
Finding of the Court:
The court held that the plaintiffs' rights in the original plots were extinguished upon the coming into force of the final scheme and that the Corporation had a statutory duty to put the allottee of the final plot in actual possession. The court also held that the notices issued by the Corporation were valid and that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of the Town Planning Act.
Issues: 1. Whether the plaintiffs' rights in the original plots were extinguished upon the coming into force of the final scheme? 2. Whether the Corporation had a statutory duty to put the allottee of the final plot in actual possession? 3. Whether the notices issued by the Corporation were valid? 4. Whether the Civil Court had jurisdiction to entertain the suit in view of the provisions of the Town Planning Act?
Ratio Decidendi: 1. The court relied on the decision of the Supreme Court in Municipal Corporation of Greater Bombay v. The Advance Builders India Pvt. Ltd., 75 Bombay Law Reporter 355, which held that the necessary effect of the finalisation of a scheme and its coming into force is that all rights in the original plots of the private owners would determine. 2. The court also relied on the decision of this Court in Anna Saheb Baburao Nisma and others v. The Bombay Municipal Corporation and other, Appeal from Order No. 437 of 1977, which held that it is the statutory duty of the Corporation to put the allottee of the final plot in actual physical possession. 3. The court further held that the notices issued by the Corporation were valid as they were issued in furtherance of their statutory duties as well as the directions issued by the High court in Misc. Petition No. 1668 of 1975. 4. The court also held that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of section 149 of the Act.
Final Decision: The appeal was dismissed with costs.
2. In the suit plaintiffs claimed that they were in possession of the disputed land. It is an admitted position that in the Town Planning Scheme the land in dispute was given plot No. 1215 and was allotted to one Peter Louis who in his turn assigned it to M/s. Sanghi Motors Ltd. M/s. Sanghi Motors Limited and Shri Loise filed a petition before this Hon'able Court against the Bombay Municipal Corporation bearing Misc. Petition No. 906 of 1972 wherein a statement was made on behalf of the Corporation before the High Court that they will take immediate steps to stop the nonconfirming use of the structure on this plot by launching prosecution, in view of this statement the petition came to be withdrawn by the petitioners and thereafter the plaintiff No. 1 was prosecuted under the provisions of the Maharashtra Regional Town Planning Act, but was acquitted. The M/s. Sanghi Motors Ltd. also filed suit in small causes Court, Bombay against plaintiffs and the said suit the was dismissed as not maintainable. The Corporation then called upon the plaintiffs to show documentary evidence. It then appears that the matter was against brought before the High Court by Sanghavi Motors Ltd. in Misc. Petition No. 1668 of 1975 which was decided by Pendse, J., on 11th October, 1979. Pendse, J., after making a reference to the decision of the Supreme Court in (Municipal Corporation of Greater Bombay v. The Advance Builders India Pvt. Ltd.)1, reported in 75 Bombay Law Reporter 355 and the decision of the Division Bench of this Court consisting of the Chief Justice Kantawala and Mr. Justice Tulzapurkar (dated 9th October, 1973 in Appeal No. 135 of 1969)2, and the decision of Justice Deshmukh dated (23rd November, 1977 in Misc. petition No. 288 of 1970)3, came to the conclusion that it is the statutory duty of the Corporation to put the allottee of the final plot in actual possession. Accordingly, the rule was made absolute in the said petition and the corporation was directed to enforce the final Town Planning Scheme, Bombay City No. IV, Mahim area and put the M/s Sanghavi Motors Ltd. in actual and Physical possession after removing all the huts, sheds and temporary structures on the final plot No. 1215. The Corporation was further directed to enforce the scheme and put the M/s. Sanghavi Motors Ltd. in possession according to the provisions of law within a period of one year from the date of the judgment. It appears that thereafter betterment charges were paid by the said M/s. Sanghavi Motors Ltd. and the Corporation issued notice to the plaintiffs under sections 89 and 90 of the Maharashtra Regional Town Planning Scheme Act, 1966, herein after called as the Act. In substance it is these notices which were challenged in the present suit by the plaintiffs.
3. The defendants, that is, the Corporation and its Ward Office justified their action under Law. They also contended that the plaintiffs were already offered alternate accommodation as per the policy of the Corporation. They also contended that the Civil Court has no jurisdiction to entertain the suit in view of the provisions of the Town Planning Act. On the basis of the pleadings of the parties the learned Judge of the City Civil Court, Bombay framed the following issues :
(1) Whether growing of garlic and giving treatment is an industry ?
(2) Whether this Court has jurisdiction to entertain this suit ?"
After hearing the arguments in details the learned Judge of the City Civil Court, Bombay came to the conclusion that under the provisions of the Town Planning Act all rights in the
