AMY PHIROZSHAH MISTRY Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition arises from the judgment and order dated 31st October, 1988, passed by the Principal Judge, City Civil Court, Bombay, in Misc. Appeal No. 109 of 1984 filed under section 105-F of the Mumbai Municipal Corporation Act, 1888 (for short, "the B. M. C. Act"), by which the petitioners appeal has been dismissed. The order of eviction under section 105-B of the B. M. C. Act was impugned in the said appeal. The property involved is plot No. 48 of Carnage Lines Estate, admeasuring 327. 54 sq. yards, bearing C. S. No. 1835 of Fort Division, Mumbai (for short, "the said plot" ). Though the petitioners have made diverse prayers in the writ petition, the prayer (a) alone was pressed concerning the order of eviction passed by respondent No. 5 under section 105-B of the B. M. C. Act. According to the petitioners, the said plot has remained and continued in their possession and it did not ever vest in the Municipal Corporation of Greater Bombay (for short, "the Corporation") as contemplated under section 129 of the Maharashtra Regional and Town Planning Act, 1966 (for short "act of 1966") and, therefore, order under section 105-B is bad in law.

(2.) THE order dated 13th June, 1984 was passed in exercise of the powers conferred under section 105-B of the B. M. C. Act by the Inquiry Officer of the Corporation in the enquiry proceedings bearing Nos. 19/2 of 1983 and A/2 of 1983. By this order, the petitioners were held to be in unauthorised occupation of the said plot and were called upon to vacate the same within one month from the date of service of the order, since it was required by the Corporation for development of public garden. The Misc. Appeal of the petitioners came to be dismissed by the impugned judgment and order dated 31st October, 1983.

(3.) WE may, briefly, state the necessary facts. It is the case of the petitioners that since about the year 1941, Phirozshah Pallonji Mistry and Shapoorji Palonji Mistry were in exclusive possession, use and enjoyment of the said plot of Government of India. Petitioners Nos. 1 and 2 are the only heirs and legal representatives of the said Phirozshah Mistry and Shapoorji Mistry and petitioner No. 3 is one of the executors and trustees of their respective Wills. The petitioners claim that they have been paying the rent payable to the Central Government and taxes to the Corporation in respect of the said plot. Though the possession of the said plot was with their predecessor-in-title since 1941 onwards, on 28th March, 1964, a document came to be executed between the President of India and the petitioners herein and on 12th September, 1964, it came to be registered. The petitioners claim is that it was a lease agreement and is still valid and subsisting. The said lease was executed for a period of 999 years with effect from 5th March, 1941.