Rajesh Tanaji Bachhav vs The Deputy Chief Officer (W), Mumbai Housing & Area Development Board, MHADA & Ors.

(PER SANDESH D. PATIL, J.)

The petitioner in this petition is seeking directions against the respondent Nos.1 to 6 to hand over the physical possession of the open plot of land bearing plot No.100, admeasuring at about 76.75 sq.mtrs. area situated at RSC-11, Charkop, Kandivali (West), Mumbai-400067 (‘the said plot’ for short).

It is the contention of the petitioner that the petitioner was allotted the said plot by the respondent No.1 through a registered Lease Agreement dated 27^th October, 2005 for a period of 99 years. The petitioner had complied with all the requisitions of the said Lease Deed. The petitioner, thereafter, corresponded with the respondent authorities for the purpose of handing over the actual and physical possession of the land to the petitioner.

The respondent authorities, however, have not handed over the actual physical possession of the land. Hence, the present writ petition is filed.

The learned Counsel appearing for the petitioner argued that a registered Lease Deed was executed by the respondent No.1 in favour of the petitioner; the respondents were duty-bound to act upon the same and hand over the possession of the same to the petitioner in lieu of the registered Lease Deed dated 27^th October, 2005. He argued that the delay on the part of the respondents has caused grave injustice to the petitioner.

The learned Counsel for the petitioner further argued that there was a letter dated 4^th August, 2021 issued by the MHADA stating that the plot of land in question does not fall under the Coastal Regulation Zone (CRZ) affected zone. In these premises, learned Counsel for the Petitioner submitted that, the argument of the MHADA that the said plot falls under CRZ category is a vague statement. He relied upon instances of transfers affected in favour of adjacent owners. He submitted that, in these premises, the MHADA was duty-bound to give possession of the said plot to the Petitioner.

Learned Counsel for Respondent-MHADA opposed the said Petition. The learned Counsel submitted that the plot in question falls within the CRZ zone, and therefore, in view of the judgment passed by the Bombay High Court, in the matter of Bombay Environment Action Group and Ors. v/s The State of Maharashtra & Ors. in WPL/3246/2004, the said plot cannot be allotted to the petitioner. He further submitted that the original allottee has transferred the said plot to a third party, and therefore, the present petition out not to be entertained.

We have heard the learned Counsel appearing for both the sides. We have perused the documents on record. Admittedly, the MHADA has executed the Lease Deed on 27^th October, 2005 in favour of the petitioner. The MHADA was the owner of the said land. The MHADA had by a public advertisement, published in the newspaper invited offers from public at large for allotment of open developed plots of MHADA. In pursuance of the public advertisement, the petitioner had applied and was ultimately allotted the said land. The said plot was leased to the petitioner on payment of certain premium for a period of 90 years with effect from the date of execution of the Lease Deed. Today, the petitioner has not sought any relief other than handing over the actual and physical possession of the said property to the petitioner. The MHADA is not denying execution of the said Lease Deed.

The respondents have stated that the development activities could not be carried out under the CRZ notification. It is nobody’s case that the registered Lease Deed dated 27^th October, 2005 is cancelled, rescinded or otherwise declared null and void or illegal by any competent Court. Since the Lease Deed today is valid, legal and subsisting, it would not be open for MHADA to contend that they would not hand over possession of the property to the petitioner. The property, in question is an open plot of land as is evident from the schedule annexed to the Lease Deed. The Lease Deed finds place at Exhibit-A to the petition.

The next issue raised by the MHADA is that the petitioner has sold the property to the person who has filed the present petition. This is certainly a vague statement and lacks bonafides. There is nothing on record to show that the property has been sold to the Power of Attorney holder. As on date, there is no document to substantiate the case of MHADA. We, therefore, do not accept the submissions made on behalf of MHADA that possession of the property could not be handed over to the petitioner on the ground that the petitioner has sold the property to a third party.

We accordingly reject the said submission of MHADA. It is however, always open to MHADA to take appropriate action in the event that they come across cogent material to substantiate that the petitioner has sold the property to a third party.

In these premises, to deny the petitioner the property which he has duly acquired from MHADA would amount to a travesty of justice.

It is not the contention of the petitioner that there is any structure on the said plot. Whether the petitioner is entitled to construct any such structure and whether the provisions of CRZ permit or restrict the petitioner from constructing such a structure are separate issues with which we are not concerned in the present petition.

In these premises, the petitioner certainly cannot be denied of the plot of land, despite of having acquired the same pursuant to the advertisement issued by MHADA. MHADA accepted the premium and lease rent as far back as in the year 2005, but has not handed over the possession of the plot till date. Such an act on the part of MHADA cannot be countenance in any circumstances.

We make it clear that we have not gone into the issue of whether construction is permissible in view of the CRZ Regulations. We have also not examined the issue of the CRZ buffer zone or whether the plot falls within a buffer zone area. All that we have considered is whether the petitioner is entitled to obtain the said land from MHADA. The MHADA being an instrumentality of the State cannot deprive the citizens of their rights in such a high-handed manner. Hence, we are inclined to allow the present petition. Hence the following order :

The Petition is disposed of accordingly.

After the Judgment is pronounced, learned Counsel for the MHADA makes a request for stay. The same is rejected.