IMPORTANT POINT
The court established that rights under the MRTP must be clearly demonstrated, and mere reconstitution of plots does not confer additional rights without proper legal basis.

JUDGMENT :

M.S. 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 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 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 Bombay & Anr. v. The Advance Builders (India) Pvt. Ltd. & Ors., AIR 1972 SC 793.

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 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