Apurva Natvarlal Parikh v. The Municipal corporation of Greater Mumbai & Ors

Mr. R. D. Soni, i/b. M/s. Ram and Co., for the Petitioner. Ms. Komal Punjabi, for Respondent No. 1. Ms. Kiran Bagalia, for Respondent No. 2. Mr. D. A. Nalawade, GP, with Mr. Mohit Jadhav, AGP, for Respondent Nos. 3 and 5. Mr. P. K. Dhakephalkar, Senior Counsel, i/b. Mr. V. G. Indrale, for Respondent No. 6. Mr. Vijay D. Patil, for Respondent No. 4. Mr. Milind Sathe, Senior Counsel, with Mr. Mustafa Doctor, Mr. Samindra Surve, Mr. Nirav Shah, i/b. M/s. Little and Co., for the Applicant in Chamber Summons. J.V.Salunke,PA CORAM :- A.M.KHANWILKAR & MRS.MRIDULA BHATKAR,JJ. DATED :- NOVEMBER 30, 2012 P.C. :- This Writ Petition is filed by real brother of the original owner of original plot No. 501, which has been reconstituted as final plot No. 494 in TPS-V Vile Parle. The legal heirs of the original owner have filed Chamber Summons for joining them as Petitioners. During the arguments, however, Counsel for the Applicants in the Chamber Summons submits that the Applicants be permitted to amend the said prayer to mean that the Applicants should be impleaded as party Respondents in the Writ Petition. 2) We would proceed on the basis that this Chamber Summons is allowed. Whether the heirs of the original owner of final plot No. 494 in the town planning scheme are Petitioners or Respondents in the present Petition would make no difference, as the decision in this Petition would bind them, having appeared before the Court and participated in this proceedings. J.V.Salunke,PA 3) Reverting to the challenge in this Petition, the Petitioner, who, as aforesaid, is the real brother of the original owner of original plot No. 501, which has been reconstituted as final plot No. 494, has prayed for direction against the Corporation to allot and handover vacant possession of final plot No. 494 to him in lieu of original plot No. 501 in TPS-V Vile Parle. The brother of real owner has approached this Court on the assertion that he has right, title and interest in the said plot. It is not necessary for us to elaborate on the facts asserted by the Petitioner to buttress this contention. However, we would place on record that the Applicants in the Chamber Summons, who are the heirs of original owner, have not disputed the correctness of the said fact. 4) The question is whether the Petitioner or the legal heirs of original owner are entitled for any relief whatsoever. In the first place, the Respondents cannot be heard to grant them substantive relief. They can only oppose the grant of relief to the Petitioner or at the best support the cause of the Petitioner. J.V.Salunke,PA 5) As stated earlier, it is not in dispute that the original plot No. 501 has been reconstituted as final plot No. 494 in the town planning scheme. The award regarding reconstitution of this plot was passed by the Appropriate Authority as back as in August,

1994. After reconstitution of the plot as final plot No. 494, no doubt, the Corporation was obliged to handover possession of the said plot to the original owner thereof. In the present case, it is asserted by the Petitioner that such offer was not given to the original owner. As a result of which, the original owner of original plot No. 501 could not take possession of the reconstituted final plot No. 494, which, in law, should have been allotted and possession thereof given to him. 6) If there was no other intervening development, relevant for deciding the controversy, the original owner or the heirs of the original owner and/or person claiming through the original owner would have been entitled for relief of issuance of direction to the Corporation to handover possession of final plot No. 494 of the town planning scheme. However, as in the companion case(WP/2017/2010), which was listed today and has been dismissed by separate order, even in this case, it is noticed J.V.Salunke,PA that Notification under Section 4 of the Maharashtra Slum Areas (Improvement,Clearance and Redevelopment) Act, 1971 (hereinafter referred to as 'the Act of 1971') was issued on 17th November, 2005, which includes the final plot No. 494. That process has been taken forward by issuing Notification under Section 14(1) of the Act of 1971 on 21st February, 2006 including by passing award on 28th November, 2007. After passing of the award, the SRA has now entrusted the work of redevelopment of the slum property including the final plot No. 494, to Respondent No. 6, vide LOI 22-2009. Admittedly, neither the Petitioner, nor the heirs of original owner have challenged the acquisition of land, under the provisions of the Act of 1971. With the acquisition of the said land and the entrusting the redevelopment work to Respondent No. 6, neither the Petitioner, nor the heirs of the original owner have any subsisting right in the final plot No. 494 of the town planning scheme. Thus understood, the question of issuing any direction, either to the Corporation or to SRA, of handing over possession of final plot No. 494 to the Petitioner or the heirs of the original owner, does not arise. Accordingly, the principal relief claimed in this Petition of issuing direction to the J.V.Salunke,PA Corporation of handing over vacant possession of final plot No. 494 will have to be stated to be rejected, both on merits and also on account of laches, as that relief has been claimed for the first time by way of present Petition only in October, 2010. 7) We, however, as in the companion case, permit the Petitioner or any other person claiming through the original owner to pursue remedy of challenging the acquisition proceedings, by way of Statutory Appeal, provided under the Act of 1971 or such other remedy, as may be advised, which will have to be considered on its own merits, in accordance with law. We are not expressing any opinion about the correctness and justness of the acquisition of final plot No. 494, under the Act of 1971 or about the quantum of compensation to be awarded to the heirs and legal representatives of the original owner. Those are the matters to be decided on its own merits, in accordance with law. 8) Petition dismissed. Chamber summons also disposed of on the same terms. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR,J.) J.V.Salunke,PA