Mridula Bhatkar, J.

The petitioners are the builders and developers of the property bearing CTS No.618, Paranjpe Scheme Road, Vile Parle (East) Mumbai-400 057. The respondents on 27.1.1966 issued notice under Section 488 of Bombay Municipal Corporation Act, 1888 to the petitioners for possession of the portion of the land admeasuring about 75.46 sq. yards out of CTS No.618, for the purpose of the construction of a road. The said portion of the land was acquired on 1.2.1966. As per the policy of the BMC, whenever a set back land is acquired by the Corporation, then the owner of the plot is entitled either to the compensation or to exercise option of availing the FSI under Rule 10(2) of the Development Control Regulations of BMC. The petitioners have grievance that neither the compensation nor the FSI in lieu of the compensation was given to them after acquisition of set back land by the Corporation for the purpose of constructing road.

2. Learned Counsel Mr.Mehta appearing for the petitioners submitted that the petitioners had approached the Corporation for the FSI but no decision is taken by the Corporation till today. He relied on two Circulars, dated 8.7.1987 (Exh.A) and dated 4.8.1987 by which the petitioners are legally entitled to compensation or FSI in lieu of compensation for the acquisition of the set back land. He submitted that as per the said Circulars, it was necessary for the person whose land is acquired to make claim within a period of 12 years from the date of taking over possession of the said land and if such claim is not made within the stipulated period then the petitioners/claimant may lose their right to claim. Learned Counsel drew our attention to the averments in sub-para-(c) of para-4 of the petition where the petitioners have specifically averred that between 7.4.1966 till 1977 the correspondence was exchanged with regard to fixation and payment of compensation but no effective actions for payment of the compensation in respect of the said acquired land were taken. In support of his submission, he relied on the judgment of this Court in Writ Petition No.1392 of 1990 dated 14.6.1994.

3. While opposing the petition, learned Counsel Mrs.Purandare for the BMC submitted that the petitioners did not claim compensation or FSI till 1997 therefore, the claim of the compensation or the FSI in lieu of the compensation is time barred. She submitted that the petitioners have constructed beyond the approved FSI, therefore, respondents have withheld the Occupation Certificate of the building so the petitioners have approached the Court after many years.

4. Acquisition of the set back land admeasuring about 75.46 sq. yards from CTS No.618, Vile Parle, is not disputed. As per the Circular (Exh.A) dated 8.7.1987 a person whose land is acquired by the BMC, is entitled to the compensation or FSI in lieu of the compensation is a policy of the Corporation. A short issue involved is whether the petitioners have made claim under the policy within 12 years from the date of the acquisition or not. The land was acquired on 1.2.1966. The petitioners in sub-clause-(c) of para-4 of the petition have stated on oath that between 7.4.1966 till 1977 there was correspondence between the petitioners and the Corporation in respect of fixation of payment of the compensation. In the absence of affidavit-in-reply of the respondents, this fact is un-controverted.

5. In Writ Petition No.1392 of 1990 (M/s.Green Field Cooperative Housing Society Limited & Anr. Vs. The Municipal Corporation of Greater Bombay & Ors.) decided on 14.6.1994, a single Judge of this High Court had an opportunity to deal with the similar issue of the limitation for claiming compensation or FSI within 12 years. In the said petition, the petitioner-society has claimed compensation within 12 years. However, no decision was taken by the Corporation on account of procedural delay therefore, this Court held that such case should be considered even after expiry of 1