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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 2934 OF 1999

WITH

WRIT PETITION NO. 1969 OF 1999

WRIT PETITION NO. 2934 OF 1999

MUNICIPAL CORPORATION OF GREATER

)

MUMBAI, Mahapalika Marg, Fort,

)

Mumbai 400 001.

)..PETITIONER

VERSUS

1.

MINISTER FOR URBAN DEVELOPMENT)

State of Maharashtra.

2.

STATE OF MAHARASHTRA

)

3.

GAJANAN GOVIND KANTHI

)

4.

SMT. SUNANDA CHANDRAKANT

)

GOVIND KANTHI

)

5.

ANIL GOVIND KANTHI

)

6.

SUBHASH GOVIND KANTHI

)

7.

AVINASH GOVIND KANTHI

)

8.

SMT. VASUDHA D/o. LATE GOVIND

)

KANTHI W/o. SHRI VASANTRAO

)

KARULKAR

)

9.

MRS. ARUNA D/o. LATE GOVIND

)

2

KANTHI W/o. ANIL RATNAPARKHI,

)

All of Mumbai, Indian Inhabitants,

)

having office at C/o. Ravi N. Jain

)

(Architect), Room No.60, 3^rd floor,

)

Podar Chambers, 109, S.A.Brelvi Road,

)

Fort, Mumbai 400 001.

).. Respondents

Mr. A.Y.Sakhare, Senior Counsel, a/w Mrs. Shobha Ajitkumar, Advocate, for the

peitoner.

Mr. Aspi Chinoy, Senior Counsel a/w Mr. Pravin Samdhani, Senior Counsel, with

Mr. R.D.Suvarna, Advocate for the respoondents.

WITH

WRIT PETITION NO. 1969 OF 1999

1.

Gajanan Govind Kanthi

)

2.

Smt. Sunanda Chandrakant Govind Kanthi )

3.

Anil Govind Kanthi

)

4.

Subhash Govind Kanthi

)

5.

Avinash Govind Kanthi

)

6.

Smt. Vasudha d/o Late Govind Kanthi

)

w/o Shri Vasantrao Karulkar.

)

7.

Mrs. Aruna d/o Late Govind Kanthi

)

w/o. Anil Ratnaparkhi

)

All of Mumbai, Indian Inhabitants,

)

haviig office at C/o. Ravi N. Jain

)

(Architect) Room No.60, 3^rd floor,

)

Podar Chambers, 109, S.A.Brelvi Road,

)

Fort, Mumbai 400 001.

).. Petitioners

Versus

3

1.

The Municipal Commissioner

)

2.

The Chief Engineer, (Development Plan)

)

3.

The Municipal Corporation of Greater

)

Bombay, Defendants No. 1 to 3 having

)

their offices at Mahapalika Marg, V.T.

)

Mumbai 400 001.

).. Respondents

Mr. Aspi Chnoy, Senior Counsel a/w Mr. Pravin Samdhani, Senior Counsel i/b.

Mr. R.D.Suvarna, Mr. Vijay Tamhane, Advocates, for the petitioners.

Mr. A.Y.Sakhare, Senior Counsel a/w Mrs.S.A.Module, advocate, for the

respondents.

CORAM:

F.I.REBELLO AND

J.H.BHATIA, JJ.

JUDGMENT RESERVED ON: 09.02.2010.

JUDGMENT PRONOUNCED ON:25.02.2010.

JUDGMENT (PER J.H.BHATIA,J.)

1.

In the Writ Petition No.2934/1999, the Municipal Corporation of

Greater Mumbai (the Corporation in brief), seeks to quash and set aside the order

dated 29.4.1998 passed by the minister of State for Urban Department, directing

the petitioner to grant Transferable Development Rights (TDR) in lieu of the

reservation clamped on the Final Plot No.286, Town Planning Scheme IV for

Mahim Division.

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2.

To state in brief, according to the Corporation, on 25.6.1951, there

was a declaration of intention to formulate Draft Town Planning Scheme IV for

Mahim Division by the Corporation as Local Authority. The formal sanction to

the Draft of the Scheme was accorded on 3.1.1955. One Mr. G.J.Desai was

appointed as an Arbitrator to pass an award for granting the final plot to as well

as for fixation of the compensation to be paid to the parties, whose land would

vest in the Local Authority. On 20.5.1963, the notification was issued declaring

the award passed by the Arbitrator. On 15.8.1963, the Final Town Planning

Scheme IV came to be sanctioned and all the lands required by the Corporation,

vested in it absolutely free from all encumbrances under Section 53 of the

Bombay Town Planning Act, 1954. The original plot No.289 admeasuring 6385

sq. yards situated within the limits of the said Town Planning Scheme IV, Mahim,

originally belonged to Tarachand Kalyanji and seven others. Under the said

Scheme, two final plots, bearing No.288 admeasuring 562 sq. yards and No.355

admeasuring 516 sq. yards were allotted to the owners of the original plot No.289.

Remaining land includig final plot No.286 vested in the Local Authority for which

the Arbitrator had fixed amount of Rs.1,25,433/- as compensation to be paid tothe

original ow