FORUM FOR JUSTICE: July 2011

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O.O.C.J.

[RULE 4(e) OF THE BOMBAY HIGH COURT-P.I.L. RULES2010]

P.I.L. PETITION NO. 31 OF 2011

In the matter of Article 226, of the Constitution of India

AND

In the matter of Maharashtra Regional & Town Planning Act, 1966

AND

In the matter of Mumbai Municipal Corporation Act1888 and Building Bye-laws

1) Madhav Gajanan Deshpande, )

Aged: 70 years, Occu: Architect )

Having his residence at: )

7,Kaustubhdham C.H.S.L.,Plot No.)

23, D Portion’ Sanghani Estate Lay out,)

Gavdevi Road, Ghatkopar (W), )

Mumbai – 400 086. )

2) Ketan Praful Shah, )

Aged 37 years, Occ: Business, )

Residing at: 8, Kaustubhdham )

Co-Op. Housing Society Ltd., )

'D' portion, Sanghani Estate layout, )

Gaondevi Road, Ghatkopar (West), )

Mumbai- 400086. ) ……. Petitioners

.

V/s.

1) Shri Ghatkopar Agra Road Sthnakwasi

Jain Shravak Sangh Plot No. 7,

Sanghani Estate ‘D’ Portion Lay-out,

Gavdevi Road, Ghatkopar (West), )

Mumbai - 400086. )

2) Shri. Paresh Virajlal Chabhadia(Partner )

AVI Housing (Builders & Developers)

Unit No.2, Gr. Fl.,Vadani Industrial

Estate, Opp.Shani Niketan, L.B.Shastri

Marg, Ghatkopar (W), Mumbai-400086.

3) Jai Neminath Kripa Co-op. )

Housing Society Ltd. Plot No.14, )

'D' portion Layout Sanghani Estate, )

Gavdevi Road, Ghatkopar (West) )

Mumbai-400086. )

4) Municipal Commissioner, )

Municipal Corporation of Greater )

Mumbai Mahapalika Marg, Fort, )

Mumbai – 400 001. )

5) The Government of Maharashtra )

through the Chief Secretary )

Maharashtra State, Mantralaya, )

Mumbai – 400 032. )

6) The Senior Inspector of Police )

Surya Nagar Police Station, )

Off. L. B. Shastry Marg, )

Vikhroli (West), Mumbai-400083 )…………….Respondents

To

THE HON'BLE CHIEF JUSTICE

AND OTHER HON'BLE PUISNE JUDGES

OF THIS HON'BLE HIGH COURT

THE HUMBLE PETITION OF THE PETITIONERS ABOVE NAMED:

MOST RESPECTFULLY SHEWETH:

1. The Petitioners are the citizens of India having their permanent place of residence at the respective addresses mentioned in the cause title. The Petitioners No. 1 and 2 are the residents of the building of Co-op. Housing Society called Kaustubhdham Co-op. Housing Society Ltd., Plot No.23, situated at ‘D Portion, Sanghani Estate layout at Gavdevi Road, Ghatkopar (west), Mumbai-400086.

Petitioner No. 1 is the President of an NGO called FORUM FOR JUSTICE, which is a Public Charitable Trust, registered under the Bombay Public Trust Act, 1950 having its registered office at his residential address shown in the cause title. Petitioner No.01 is an Architect and Town Planner by profession and practicing for the past over forty years and as such he is conversant with the building Bye-laws and Development Control Rules (D.C.R.-91)as also development, planning and designing aspects of buildings for different purposes. As such The Petitioner No. 1 is filing the present petition in his personal capacity along with two other petitioners being the residents of ‘D' Portion Sanghani Estate Lay out and the beneficiary of the Recreation Open Space provided for the benefit of all the residents of the Sanghani Estate Lay out, more particularly, the ‘D' Portion and in general the 'A' to 'D' portions of total Sanghani estate.

2.

The Respondent No.1 hereto is a religious charitable trust, registered under Bombay Public Trust Act 1950 and managed by the Managing committee Members trustees appointed / elected time to time.

The Respondent No.2 is the Partner of M/S. AVI HOUSING (Builders/ Developers) appointed by the defendant No. 01

The Respondent No. 3 is a Co-op. Housing Society, registered under the Maharashtra Co-op Societies Act, having its office and building on plot No.14 of 'D' portion of Sanghani Estate layout situated at Ghatkopar (W), Mumbai.400086.

The Respondent No. 4 is the Municipal Commissioner of Greater Mumbai, Mumbai (M.C.G.M) who is responsible for functioning of administration of Municipal Corporation of Greater Mumbai and approves building plans, subdivision of plots, and takes decision on provisions for Recreational Open Space, Garden and such other amenities to be provided in various plots of lands through his powers delegated authorities in Director (ES&P) / Chief Engineer (D.P.) /Dy Chief Engineer (B.P.)/ Executive Engineer (B.P.) to accord approvals to buildings and sub-divisions / amalgamations etc of holdings in Greater Mumbai Limits.

The Respondent No. 5 is the Chief Secretary and as such the administrative Head of the Government of Maharashtra whose powers are delegated upon the Collector of Greater Mumbai Suburban District who in turn, through Sub-Divisional Officer, Mumbai Suburban District and City Survey Officer under the Control of Superintendent of Land Records, incorporates changes in revenue records.

The Respondent No. 6 hereto is the Sr. Inspector of Police, Suryanagar Police Station, off L.B. Shastri Marg Vikroli (W), Mumbai-400083.

3. The Petitioners are the residents of the premises commonly known as Sanghani Estate Layout comprising of 'A' to 'D' portions approved under one layout File No. GB/ 259 OF 1951 of 28/08/1951 of continuous holding of original developers with phase wise development permitted under different Resolutions at different time periods from 1951 to 1953 by the Standing Committee of Municipal Corporation (M.C.G.M.) then known as B.M.C, more particularly ‘D’ portion being part of Survey No. 162, Hissa No. 6 (pt) Survey No. 31 (Pt), Survey No. 62, Hissa No.4, Survey No. 159, Hissa No. 3, Survey No. 161, Hissa No.45 i.e. C.T.S. Nos.123, 124, 125, 2263, 2265 etc., at Village Ghatkopar- Kirol, L.B.S. Marg, Mumbai Suburban District, Mumbai, hereinafter referred to as “the said 'D' Portion Layout holding, admeasuring approx. 39817.0Sq.Yards i.e. 33292.089Sq.Mtrs., of Sanghani Estate. Hereto annexed and marked EXHIBIT – "A" is a true copy of the said Layout.

4. The 'D' portion of said Lay-out initially consisted of total 36 plots out of witch i) then unbuildable Garden plot Nos. 09, 10 forming the part of continues Recreational Open Space 'B' Garden (R.O.S.) marked on the plan and deriving access from internal 30 Ft wide Gaodevi road ii) triangular Garden 'A' (R.O.S.) behind plot Nos. 28 to 33 and iii) portion 'C' out of total 15% Garden (R.O.S.) on plot Nos.14,15,16, admeasuring about 1944.Sq.Yards. (1625.43Sq.Mrts.) and insisted by Assistant Engineer (Town Planning) as the part of condition No..11 imposed while approving said layout under resolution No.148 of 22nd April, 1953 by Standing Committee, marked on the plan is the corner Garden (R.O.S.) deriving access from 30 Ft wide internal roads, for the benefit of plots at the rear side of layout portion.

5. The Petitioners state the Sanghani Estate layout of 'A' to 'D' portions of was prepared by M/s. Suvernapatki & Vora, Architects of the owners Jayantilal and Others, the original Developers, of the said holding and the file containing the plan of Sub-division of 'D' portion Layout of Sanghani Estate holding being part of File No. GB/259 of 28/08/1951 was forwarded by the then Municipal Commissioner vide his letter No.A.E./18914/Sub dated 16/04/1953, to the Standing Committee of the then Bombay Municipal Corporation (B.M.C.) for its sanction.

6. While submitting the original proposal of Layout under No. GB/259 dt. 28.08.1951 the then Developer had earmarked a total portion admeasuring approx: 2264 sq. yards i.e. 1892.99 Sq. Mtrs. which marked as ‘A’ and ‘B’ as “Recreational Open Space”, the break-up of which was Garden 'A' approx: 1035 sq. yards i.e. (865.39Sq.Mtrs.) + Garden 'B' 1229sq.yds (1027.60Sq.Mts.)

originally trapezoid shape fronting with unbuildable plot No. 09, 10 (617+667 Sq. Yards. i.e. 1073.587Sq. Meters)and deriving access from 30Ft. wide internal road, now called Gaondevi Road, respectively, for the said two portions of which original approved layout plan is neither with Municipal Corporation nor with the owner of layout. Thus the status of plot Nos. 14 to 16 and unbuildable land under garden plot No. 09, 10 which is continuous part on South side of 'B' portion Garden (R.O.S), the Respondent No.4 while scrutinizing the proposal from Aug. 1951 to April 1953 for sanction, must have found that the aforesaid area marked as ‘A’ and ‘B’ with continuous unbuildable land, under Plot Nos. 09 and 10 in the Layout as Recreational Open Space, was much less compared to the requirement of the layout; taking into account the total area of the Layout and to give access from internal roads for the connivance of residents on the plots Nos. 17 to 27 at the back side i.e. towards North, to get direct access from the internal roads, it was then considered necessary by the Respondent No. 04 Municipal Corporation that an additional recreational area of approx: 1944 sq. yards i.e. (1625.43Sq.Mrts.) continuous to the area marked as ‘B’, on East side of Garden 'B', including Plot No.14 and stretching further on plot Nos.15 and 16 i.e. up to East-West 30 Ft. internal road and flanked by Plot.No.17 and another 30 Ft. wide internal road running South to North, shall have to be provided adjacent to the proposed 30 feet vide internal road and opposite to plot nos. 24 and 25. The said additional recreational area of approx. 1944 sq. yards(1625.43Sq.Mrts.) is a rectangular portion consisting of plot Nos.14, 15, 16 of 'D' portion lay-out marked as ‘C’ in the layout annexed hereinabove.

7. The Petitioners states that at the material time i.e. in or around the year 1951 to 1953, since the present Maharashtra Regional & Town Planning Act, 1966 was not in existence, which came into force from the year 1966, the decision making and the approval of the layout was vested solely with the Standing Committee under the Municipal Corporation of Greater Bombay, then known as Bombay Municipal Corporation (B.M.C.). Thus after considering the entire proposal submitted by the then Developer, and duly scrutinized by insisting amendments over a period of Aug. 1951 to April 1953 by the Respondent No.04, the Standing Committee meeting, by virtue of its powers vested under the Bombay Municipal Corporation Act, accorded CONDITIONAL approval by directing the original developers and their Architects M/S Suvarnapatki & Vora to under take to reserve and earmarked the said additional area of 1944.0Sq.Yards(1625.43Sq.Mrts.) as more particularly mentioned hereinabove, which is marked as ‘C’ in the copy of the layout plan annexed hereto and shown with red dotted lines, as

additional “Recreation Open Space”. Accordingly, the Respondent No.4 Municipal Corporation passed a Resolution in its meeting of the Standing Committee held on 22nd April, 1953 along with the additional terms and conditions prescribed by the Town Planning Authority, more particularly the Asstt. Engineer-(Town Planning) and Asstt. Engineer Grade-I (Sub.). Hereto annexed and marked EXHIBIT- 'B' and 'C' respectively are true copies of (1) Extract from the proceedings of the Meeting of the Standing Committee held on 22.04.1953 and (2) the terms and conditions regarding portion ‘D’ on Survey No. 23, 24, 155 and 158 i.e. C.T.S. Nos.123, 124, 125, 2263, 2265 etc., of Village Kirol Ghatkopar (West) and bearing lay-out Plan File No. GB/259 of 28th August, 1951.

8. The Petitioner states that as per Condition No. (11) of the terms and conditions passed by the Town Planning authority, it was specifically provided that the plot to the North (factually to the South) of Plot No.24 and 25 admeasuring about 1944 sq. yards, equivalent to 1625.43 sq. mtrs., shall be reserved as “Garden” ( R.O.S.), in addition to what was shown at 'A' and 'B' in the layout Plan File No. GB/259 dt. 28/08/1951.

9. The Petitioner states that vide the aforesaid Resolution No.148, it is specifically provided that the open spaces (R.O.S.) have been reserved at 2 places for “Recreation” purposes, i.e. the portion marked as ‘A’ and ‘B’ in the layout annexed hereto admeasuring 1035. sq. yards (865.39Sq.Mtrs.) and 1229 sq. yards (1027.60Sq.Mtrs.) plus unbuildable Garden area of plot No. 9 and 10 admeasuring about (617+667) Sq. Yards. i.e. 1073.587Sq. Meters areas respectively. Clause (3) of the said Resolution further provides that the said layout is in order and that there is no objection to the same provided, subject to the terms and conditions prescribed by the Asstt. Engineer (Town Planning) and Special Engineer Grade-I for suburb, are agreed and undertaken to be complied by the original owners and the Architects of the layout.

10. The Petitioner states that as per the terms and conditions prescribed by the Special Engineer of the Town Planning, a copy of which is annexed hereto and marked as Exhibit-'C' above, vide condition-11 thereof it is provided that Plot to the North (factually to the South) of Plot No. 24 and 25 shall be reserved for a “Garden” admeasuring approx.1944 sq. yards., shown on Plan No. GB/259 dt. 28.08.1951 and the Petitioner therefore states that so far as plots reserved for “Recreational Open Space (R.O.S.)” as per the Resolution and also as per the terms and conditions respectively as mentioned hereinabove, the total area, of Recreation comes to approx. 5972.55 sq. yards

i.e. 4996.81 Sq. Meters which is about 15% of the total holding of the 'D' Portion Lay out.

11. The Petitioners therefore states that so far as the present petition is concerned, the Petitioners are interested in protecting and preserving the aforesaid area earmarked for Recreational Open Spaces purpose i.e. portion marked as ‘A’, and ‘B’ along with then unbuildable area equal to (617+667=1284Sq.Yrds. i.e. 1073.587Sq. Meters.) of plot No.09 and 10 on south as well as area earmarked for Garden (R.O.S.) i.e. portion marked ‘C’ consisting of plot Nos.14,15,16 (1944.Sqyds.) the area of which on final demarcation is 2018:0 Sq. Yards i.e. 1625:43Sq. Meters vide the aforesaid Resolution, totally admeasuring approx:(617+667+1229+1035+1998)=5546Sq. Yards i.e.(4637:16 Sq. Mtrs). As the same are common amenities such as Recreational Open Spaces (R.O.S.) reserved and earmarked for the benefit and use of the residents in the 'D' portion layout as per the provisions of law, more particularly as per the relevant provisions of building Bye-laws which necessitate 15% Recreational Open Space for a lay-out of sub-division of plots.

12. The petitioner/s state that it is the responsibility of the Respondents No.04 and to bring before this Honorable Court by vigorously searching all the old records layout plans directed to be amended, time to time, by Respondent No. 04 to provide and incorporate the required 15% Recreational Open Space (Garden), in the course of scrutiny to see that the said proposal was technically in order before the same was sent by the then Municipal Commissioner on 16/04/1953 to the Standing Committee of then B.M.C. for administrative sanction to layout under No. GB/259 dated 28/08/1951.

13. As per clause (f) (ii), (iii), (v) of Rule 3(1), (Chapter-I) with regard to “Layouts” of the Building Bye-Laws, it is the mandatory requirement that “in any such layout or sub-division, 15% of the entire holding area shall be reserved for recreational space which shall as far as practicable in one place and centrally situated, provided that the layout is for an area of 0.45 hectares or more”; Clause (f) (ii), (iii), (v) further provides as under:-

Clause (f) (ii) of Rule-3 (1):- In any such layout or sub division, 15% of the entire holding area shall be reserved for a recreational space which shall be as far as practicable in one lace and centrally situated, provided that the layout is for an area of 0.45 Hectares or more.

Clause (f) (iii) of Rule-3 (1):- No such recreational space shall measure less than 375. Sq. Meters.

Clause (f) (v) of Rule-3 (1):- Every such plot and recreational space shall have and independent means of access.

Hereto annexed and marked EXHIBIT 'D ' is a copy of the said Chapter-I Clause (f) (ii), (iii), (v).

14. The Petitioner/s state that the Respondent No.04, in early days of sanction of said subdivision layout, conspicuously hand in glove with original developers and their Architects misplaced, permanently lost or destroyed or allowed it to be destroyed the Subdivision of Plots layout file No. GB/259 of 28/08/1951and conveniently hand in glove, the Respondent No.04 solely depended upon statements, plans and copy of layout submitted by the Architect for individual approval on different plots or on the copy of layout he used to provide under his signature as "True Copy of the Layout" which was hold good for approvals to building proposals submitted by other Architects. It is on records that the plot No.13 in this layout was own by Shri. M.R.Vora the then Architect but he was not the Architect for building on plot No.13 but was the Architect for the building on adjoining plot No.14 as the said plot, as per terms and conditions of said layout, being part of required R.O.S., of witch he was in the knowledge of and getting approval on plot No.14 was matter of confidence and hand in glove act with then Municipal Officers.

15. The Petitioner/s state that the Recreational Open Spaces provided and marked at 'A' on the layout plan, annexed to this petition, as also R.O.S. at 'B' along with then unbuildable land under plot Ns. 09 and 10 also part of R.O.S., was made rectangular by illegally carrying out 'Give and Take' of equivalent or more area of part of land of plot No. 09 and 10 of S. No. 25 part and adjoining S.No.162 H. No. 07 of village Ghatkopar. In the process of 'Give and Take' the Recreational Open Space 'B' continuous to plot No. 09, 10 as R.O.S. and some what in triangular (trapezoid) shape was also made rectangular with the help and blessings of local politicians, Municipal and Collector's office The Architect of original layout submitted in 1951 being expert in managing approval with the connivance of Respondent No.4, the Municipal officers, got the approval to building on Garden (R.O.S.) plot No. 09 and 10 and blocked the entry of layout residents to balance portion of Garden 'B' (R.O.S.) behind plot Nos. 09 and 10.

16. The petitioner/s state that it is the responsibility of the Respondents No.05 to bring before this Honorable Court by vigorously searching all the old records in respect of aforesaid 'Give and Take' taken place in the presence of representatives of owners to layout and of Revenue department of

Respondent No. 05 with all due legal process adopted and completed in the presence of representative of Respondent No. 04 on site with remarks and approval given by the concern Dy-Collector etc of revenue department.

17. The Petitioners therefore state that in the absence of the said Layout Plan File No. GB/259 of 28/08/1951 managed to be lost / misplaced or destroyed as such the vacant land originally under Garden is required to be reinstated by stopping construction activity of Respondent No.1 and 2 in the interest of resident of the locality. The arithmetic calculations show that, if, as per original approval, the land under Garden at plot Nos. 09, 10 and continuous to plot Nos. 09, 10 land up to boundary of plot No.17 plus additional Garden instead by Respondent No.4, on plot Nos. 14, 15, 16 and Garden 'A' on S.No. 26 (pt) in lay out, are calculated together, there is very miner short fall of 356:649 Sq Meters to complete required 15% Recreational Open Space required for 'D' portion Sanghani Estate layout holding which admeasures 39817.0 Sq. Yards i.e. 33292.089 Sq.Mtrs, and the 15% works out to 4993.81 Sq.Mtr. and provided is 4637:16 Sq. Mtrs thus the deficit of 356.649 Sq. Mtrs.

18. The Petitioners state the Recreation Open Space insisted and compelled to be provided by the Municipal Corporation and earmarked in strict compliance with the mandatory requirements contained in the aforesaid legal provisions, as such, the Respondent No. 04 are duty bound, not to approve any proposal of building construction of any type and Respondent No. 05 not to make any changes to give separate subdivision status and certification of areas in an isolated manner for individual plots unless approved copy of the subdivision of plots layout from Respondent N0.4 is supplied and said entire layout of Sanghani Estate 'A' to 'D' portions is entered in Collector's City Survey Records. Respondents Nos. 04 and 05 are responsible / liable to protect and preserve the said open spaces, in its form shape size and for joint ownership of all the residents to said layout in the name of the Association to be formed by the residents, in the over all public interest of 'A' to 'D' portions layouts in general and in the interest of the occupants of the said ‘D' portion layout of Sanghani Estate in particular.

19. The Petitioners further state that the owners and the Architects, had also undertaken in writing to abide by the conditions and had taken responsibility of communicating the said conditions to prospective buyers of plots in said 'D' portion of Sanghani Estate layout sanctioned under No.148 in particular and 'A','B' portion under No.1297, 'C' portion under No.454 by Standing Committee in general.

20. The Petitioner states that some time in the year 2001 / 2002 the Petitioners came to know that the Respondent No.01 hereto approached the Hon’ble City Civil Court at Mumbai by filing a suit Bearing S.C. Suit No. 2921 of 2001 as Plaintiff No.01 wherein the Respondent No.1 hereto, in the capacity of Plaintiff No. 01, falsely claimed, inter alia, the ownership of the portion marked ‘B’ of Recreational Open Space of 'D' Portion of lay-out. In the said suit they further falsely claimed that the said premises allegedly purchased on 01.04.1971 for valuable consideration of Rupee One (Re.1/-) from original Developers to lay-out and that they were allegedly in peaceful and exclusive possession of the same. They therefore sought for decree of permanent and mandatory injunction against the Defendants in the said suit who were the said plot holders / Societies in the layout abutting to the said ‘B’ portion garden.

21. The Respondent No.01 hereto and Plaintiff in the said Suit, suppressed the facts regarding the specific terms and conditions of the layout imposed by the then BMC Standing Committee dated 22.04.1953 and thereby sought for mandatory injunction praying for restoration of the compound wall and such other relief as more particularly prayed therein. As soon as the Petitioner/s came to know about the said suit, the Petitioner No. 01 herein being a practicing Architect and a resident of the 'D' portion layout of Sanghani Estate had submitted an application as Intervener with the intention that the suit premises being a public garden cannot be sold and the Plaintiff therein i.e. the Respondent No.01 hereto has illegally and fraudulently purchased the suit premises for a consideration of Re. 1/- for a piece of land admeasuring 1229 sq. yards.(1027.60Sq.Mtrs.) from the original developers of 'D' portion lay-out.

22. However, the Petitioner No. 01 hereto was called as a witness for the Defendant No. 02 to 06 therein. As a result whereof the Petitioner No.01 hereto had deposed before the trial Court as witness of Defendant No.02 to 06 as also as an intervener in the said S.C. Suit No.2921 of 2001. The Petitioner No.01 herein produced certified copy of the layout plan approved by the BMC being Exhibit 'A' to the present petition, certified copy of the conditions of the layout being Exhibit 'B and 'C' herein and a letter addressed to the Defendant No.02 therein the S.C. Suit No.2921 of 2001, by Executive Engineer (B&P) Eastern Suburban of M.C.G.M. regarding the Sanghani layout. After appreciating the evidence adduced by the Petitioner No.01 herein, in the capacity of witness, the Hon’ble City Civil Court was pleased to dismiss the said suit, vide order dated 30.08.2003. A copy of the said judgment is annexed herewith and marked as Exhibit "E".

23. In the said Judgment and Order dated 30.08.2003, appreciating the evidence adduced on behalf of both the parties, the Ld. Judge came to a conclusion, inter alia, that the suit land is not salable, it is a public property reserved for Recreation ground in the sanction plan passed by the BMC. In view thereof if any Sale Deed so executed by the Plaintiff is ab-intio, and therefore the title itself is defective. So the title of the suit land cannot be transferred in Plaintiff’s favor. The Plaintiff cannot be called owner of the suit land. In view thereof the issue No.1 “whether the Plaintiffs’ are the owners of the said property” came to be answered in the negative.

24. The Ld. Judge Hon'ble Shri. A.T. Vaidya further held that Rule-23 of the Development Control Rules state that every plot meant for Recreational Open Space shall have an independent means of access, unless it is approachable directly from every building in the lay out. Ownership of such Recreational space shall vest, by provisions in a Deed of Conveyance, in all the sub-divided plots' owners on account of whose holdings the Recreational space is assigned and the Recreational space shall be kept permanently open to the sky and accessible to all owners and occupants as a garden or a playground etc.

25. The Ld. Judge further observed that no evidence was produced by the Plaintiff Trust to show that the suit premises is a private property of the erstwhile vendor conveyed the title of the same to the Plaintiff, and as such an evidence was missing. Secondly the Plaintiff, being a public trust ought to have obtained permission from the Charity Commissioner, Bombay, for acquiring any property much less immovable property. Such permission from the Charity Commissioner was also not produced by the Plaintiff. All these facts led the Court to the conclusion that the Plaintiffs’ Vendor had no right, title and interest in the said property and therefore the plaintiff's vendor cannot transfer and/or to sale the suit property to the Plaintiffs, and when the Plaintiffs’ Vendor had no right to sell the property, what right can he further transfer and/or sale to the Plaintiffs. Therefore plaintiff cannot claim or prove any legal right thereto.

26. The Trial Court finally came to the conclusion that the Plaintiff has failed to establish his claim; the Plaintiff may be in possession of the suit property but the possession should be in consonance with the legal right of the Plaintiff. The Plaintiff has failed to prove that his vendor had right, title and interest in the suit property to be conveyed to the Plaintiffs. When this fact could not be proved by the Plaintiff trust, automatically the court will have to come to the conclusion that the Plaintiff’s claim could not be

established by them. Basically the ownership right over the suit property was required to be established. Merely by entering and executing Sale deed in favor of plaintiff , will not suffice to establish the title of the property since the sale Deed itself is bad in law and defective. Consequently mere possession over the property cannot suffice the purpose. If the title does not get to the Plaintiff thereto will be of no legal possession. In view thereof, the Trial Court came to the conclusion that the Plaintiffs failed to establish their apprehension, their title to the property and as such the said suit came to be dismissed.

27. The Petitioner/s state that the Plaintiff in the aforesaid suit had also taken out a Notice of Motion No. 2270/01 in S.C. Suit No.2921 of 01 wherein the City Civil Court have passed an order dated 29/04/2003 restraining the Respondent No.01 hereto and the Plaintiff therein, from using the said recreational open space for their religious functions and also from preventing the entry of residents of the locality to the said Recreational Open Space.

28. The Petitioner/s state that in spite of the above judgment passed by the trial court in respect of ownership of the Recreational Open Space, the Respondent No.01 hereto in connivance with the powers vested officers of Respondent No. 05, who intentionally and as a part of corrupt practices and without verifying the authenticity of documents produced, with the original sanctioned layout plan (GB/259 of 51) for Sanghani estate 'A' to 'D' portions from Municipal Corporation, issued the property cards and area certificates for plot Nos. 07,09,10 10 and plot Nos. 15, 16 and 'B' portion Recreational Open Space admeasuring 1229.Sq.yrds., in the name of Respondent No.01 who on the strength of such false and illegal documents entered in to CONVEYANCE CUM DEVELOPMENT AGREEMENT on 30/01/2010 for development on the said recreational open space plot Nos. 09, `10 including Recreational Open Space 'B' of 1653.03 Sq. Mtrs., with Respondent No. 02 hereto. Hereto annex is the copy of the Conveyance cum Development agreement corruptly registered against the provisions of law and without verifying whether the proof of ownership is genuine or not, the copy of the said agreement dated 30/01/2010 is marked as Exhibit "E-1".

29. The Petitioner/s state that on or about 22.01.2010, the Petitioners came to know that the Respondent No.2 AVI HOUSING (Builders & Developers), before execution of said agreement dated 30/01/2010 had planned to perform Bhoomi Pooja on 24.01.2010 at 10.00 a.m. onwards for commencement of construction jointly with the Respondent No.01 hereto on the said exclusive Recreational Open Space. Since the said act on the part of the Respondent

No.01 and 02 amounting to an offence punishable under the Maharashtra Regional & Town Planning Act, 1966 and under I.P.C., the Petitioner No.01 approached the Respondent No. 06 i.e. the then Sr. Inspector of Park Site Police station , Suryanagar Vikhroli (W) and reported the matter to them along with a written complaint dated 22.01.2010. The Petitioners had also annexed along with the said complaint copies of the order dtd. 30.08.2003 passed by the City Civil Court Mumbai, copies of the Resolution and Condition Letter of the Bombay Municipal Corporation, as stated hereinabove. As the Respondent No. 06 was reluctant to take action on complaint dated 22/01/2010, this Petitioner again visited the Respondent No. 06's police station with written COMPLAINT to lodge First Information Report (F.I.R.) in the register of police on 09/05/2010 in respect of entering in to fraudulent conveying for compulsory Recreation Open Space by way of area of plot Nos.14 to 16 of the said 'D' portion layout. Hereto annexed is copy of complaints dated 22/01/2010 and dtd. 09/10/10 duly translated in English by this Petitioner and collectively marked as Exhib "F".

30. The petitioner/s further state that, even after repeated enquiry with the office of the Respondent No.06, there was no response about the action taken on the complaint made this petitioner sought the information through application under R.T.I. Act-05. The application dated 26/08/2010 and the information dated 28/09/2010 received are together annexed herewith and marked as Exhb.'G'.

31. The Petitioner/s state that the plot No. 15, 16 where the construction was proposed to be carried out by the Respondent No. 2 is a part and parcel of 1944. sq. yards (1625.43sq.Mtrs) of additional Recreation Open Space provided for the ‘D’ Portion layout of Sanghani Estate vide Resolution dated 22.04.1953 of the Standing Committee of the then Bombay Municipal Corporation, the Respondent Nos. 01 and 02 are falsely claiming ownership and possession of 'B' portion (R.O.C.) and said Plot Nos. 15, 16 and assertion on the part of the Respondent No. 1 and 2 are in violation of the conditions of approval of layout given to the ‘D’ portion layout of Sanghani Estate by Respondent No.04 and the Municipal Corporation of Greater Bombay is fully responsible and duty bound for protection and preservation of the said status as Recreation Open Space by enforcing the provisions of law but the powers delegated officers of Respondent No. 04 have corruptly and against the observations of trial court, in judgment dated 30/08/2003, have considered the false and fabricated documents produced by Respondent No. 01 and 02 towards ownership as valid and have committed the crime punishable under sections 120-B, 218, 420 etc.

32. The Petitioners state that despite pointing out the above facts, the Respondent No. 06 being the Sr. Inspector in charge of the local police station failed and neglected to prevent such committing of crime by the Respondent No.01 and 02. The Petitioners further state that the Respondent No. 06 ought to have taken cognizance of the offence disclosed in the Petitioner's complaint dated 22.01.2010. However, the Respondent No.6 failed and neglected to perform his duty in stopping the Respondent Nos. 1, 2, 3, 4 and 5. The Petitioners further state that instead of preventing the construction on the plot No. 15 and 16 the Respondent No.6, conveniently termed it as civil matter and acted mala fide by not preventing the security guards, posted on plot No. 09, 10, 15, 16 and 'B' garden portion between plot Nos.9, 10 and 17 of the ‘D’ portion layout, from entering into the Recreation Open Space.

33. The Petitioner/s state that the Petitioner from the platform the Public Charitable trust, under the President ship of Petitioner No. 01 hereto, known as FORUM FOR JUSTICE, thereafter brought the above facts to the notice of concerned officers of the Bombay Municipal Corporation, such as E.E. (B.P) and the Dy. Chief Engineer (BP), Eastern Suburb by forwarding the said complaint letter dated 22/01/2010 with copies of enclosures, addressed to Sr. Inspector in charge of the local police station to lodge compliant under M.R.T.P. Act 1966. But no action of filing complaint under M.R.T.P Act was taken by the powers vested officers the Dy. Ch. Engineer (B.P.E.S.) of Respondent No. 04 Municipal Commissioner/s of M.C.G.M .

34. The Petitioners state that after persistent perseverance of this petitioner, the Municipal authorities concerned with the building proposal department then and now, under Chief Engineer (DP), who, in turn, is under control of Dir. (ES&P) and M.C., were knowing fully well about the theft or misplacement and /or destruction of the layout files bearing No. GB/259 of 28.08.1951 along with necessary documents and approved layout plan of sub-division of plots and the conditional letter bearing No. AE/18914/SUB dated. 19.06.1953, the department ultimately directed the owners or their legal heirs to produce the original approved layout plan with conditions imposed along with relevant documents and in the absence of the same to get the amended sanction to the lay-out originally approved under Lay-out Plan File No.GB/259 of 1951 afresh, as per the site conditions and proposed composite development and to send the same for approval for concerned authorities. Hereto annexed is copy of the letter of then Dy Ch. Eng.( BPES) dated 26/09/2003 and marked as Exhibit"H".

35. The Petitioners state that in addition to encroachment of the Recreational Open Space the Respondent No.1 is also claiming to be the owner of Plot No. 07 wherein the Respondent No.01 has carried out unauthorized constructions on the pretext of religious ritual functions in violation of the conditions No.07 of the condition letter dated. 19.06.1953.

36. The Petitioners state that the claim of the Respondent No. 01 for ownership of plot No. 07, 09 and 10 is also illegal. The Respondent No. 01 the Trust, by so illegally claiming ownership of the said property, has encroached up on and covered side open space around the Upashray Building on Plot No.07 and has further more appointed the Respondent No.02 as the Developer for illegally and fraudulently constructed Building on plot No. 09 and 10, which practically is the part of Recreational open Space portion as mentioned in para 14, 15 for construction of a new building by demolition the existing building illegally got approved and under construction on the other side of 30 feet vide internal road and opposite Upashray Building.

37. The Petitioners therefore state that the Original Owners to layout and their Architect have thus illegally and in violation of the sanctions and conditions laid down by the Municipal Authorities, have sold Recreational Open Space in four parts i) Garden area comprising of unbuildable plot No. 09 and 10 ii) Garden 'B', iii) Part of Garden area insisted by Standing Committee i.e. Plot No. 14, iv) Remaining part of Garden area insisted by Standing Committee i.e. Plot No.15 and 16, and the Respondent Nos. 01 and 03 have fraudulently purchased the same as explained on the copy of the lay out drawing annexed hereto and marked as Exhibit "I"

38. The Petitioners state that surprisingly the original approved Plan of layout of plots and condition letter are allegedly lost and are reportedly neither traceable at Mumbai Municipal Corporation's end nor Owner-Architect's end, conspicuously, almost immediately after the approval. Demarcation papers of entire Sanghani Estate layout holding with plots, internal roads and recreational open spaces are also not traceable at the end of Respondents No. 04 and 05 still majority of plots are developed over the period with the meaningful blessings and hand in glove with the Municipal officers, in the absence of original sanctioned layout of plots, only on the strength of blue print/ammonia print copies submitted of lay out issued under the signature of Shri. R.M. Vora Architect to layout from 1951 onwards.

39. The Petitioner/s state that there being no approved plans and conditions letter on the records of the Building Proposal Department and owner-Architect, the Petitioner No. 01 hereto had procured the certified copy

of the said resolution N0.148 along with copy of the condition letter passed by Standing Committee of B.M.C. from Municipal Secretary Department, and had handed over the same to then Dy.-Ch. Eng.(B.P.-E.S.). The Owners-Architects by meaningful understanding with Municipal officers have taken advantage of illegally developing of plot No.14 for Jai Neminath Kripa C.H.S.Ltd., the Respondent No. 03 hereto, though the said plot No.14 was out of additional Recreational Open Space, along with plot Nos. 15, 16, insisted as par the condition No. 11 of condition letter dated 19/06/1953 bearing No.A.E./18914/Sub., & of Asstt. Engineers (T.P.) and Grade (I) Sub.

40. The Petitioners state that the owner's Architect to layout in 1951-53, being also Architect of the said Jai Neminath Kripa C.H.S.Ltd., knowing fully well that the plot No. 14 is out of required additional Recreational Open Space insisted under condition letter dated 19/06/1953 of approval of subdivision layout of plots, had hand in glove with the owners of the layout and the Municipal Officers illegally and intentionally encroached upon the Recreational Open Space by getting approval and constructing building of Respondent No. 03 and thus blocked entry to the original triangular part of continuous Recreational Open Space and cut off the area under plot No. 15, 16, the rectangular portion of continuous Recreational Open Space which in all is supposed to be (1229+1284+1944)=4458. Sq. Yards. i.e. (3727.454Sq.Mtrs.). A copy of the layout plan at Exhibit "I" of the continuous Recreational Open Space comprising of original triangular portion (1229. Sq. Yrds.) (R.O.S.) and attached to it and deriving access from plot Nos. 09, 10 for front plots and from plot No. 14, 15, 16, for plots 17 to 28. It be referred as the subject property i.e. i) plot No.14 to 16, ii) Garden 'B' and iii) plot Nos.09 and 10 unbuildable plots presently vacant, as a result of demolition of building thereon.

41. The Petitioner/s state that the planned criminal conspiracy, of the original owners-developers and Architect to layout, and Respondent Nos. 01 and 03 hereto, of illegally selling the above mentioned Recreational Open Space in four parts, is in following manner :-

1) Plot No.14 sold to Jai Neminath Kripa C.H.S.Ltd., which is out of 1944. Sq. Yards., additional Recreational Open Space insisted under condition letter A.E./18914/Sub. Dated 19/06/1953 with which the said 'D' portion of layout of Sanghani Estate was accorded sanction by Standing Committee.

2) Illegally sold Plot No. 15, 16 which is out of 1944. Sq.Yards. Additional Recreational Open Space insisted under condition letter bearing number A.E./18914/Sub. Dated 19/06/1953 and without authority, to Shri Ghatkopar Agra Road Jain Shrawak Sangh, Respondent No. 01 here to.

3) The Recreational Open Space (Garden) reserved on Plot No. 09, 10 fronting the 30 Ft. wide layout road and in continuation to 'B' portion Garden marked on layout plan are sold to Respondent No.01.

4) Original trapezoidal Recreational Open Space admeasuring 1229 Sq. Yards., later on made rectangular (55'-076"X197'-3") by illegal "Give and Take" of land from S.No,162 H.No.7 and S.No.162 H. No. 4(pt) was sold illegally for Rs.1/- under so called Conveyance dated01-04-1972 to Defendant No.1 which, now, is declared by the City Civil Court vide orders dated 30/08/2003 in Notice if Motion No.2270 of 2001 in S. C. Suit No.2921 of 2001 passed by honorable Judge A. T. Vaidya as invalid and bad in law with direction to keep the Recreational Open Space accessible and for the benefit of resident of 'D' portion layout.

In support of the above facts, is the copy of resolution No.148 and condition letter dated 19/06/53 of Asstt. Eng (T.P.) with this Petition at Exhib. "B & C".

42. The Petitioner/s hereto state that all these facts were brought on record in Notice of Motion No. 2270 of 2001 in S. C. Suit No.2921 of 2001, on the strength of which, honorable Judge A. T. Vaidya passed orders dated 29/04/2003 restraining the petitioner in S. C. Suit No.2921 from using the said Recreational Open Space for their religious functions and restraining from preventing the entry of residents of locality to the said Recreational Open Space. In spite of these orders the defendant No. 02 of AVI HOUSING (Builders and Developers) performed BHUMI PUJA, amounting Contempt of Court orders, in the hands of father of the Respondent No.02, Shri. Paresh Virajlal Chabhadia hereto for starting construction, jointly with the Trustees of Respondent No. 01 hereto on the said exclusive Recreational Open Space and they have committed the crime, of illegal activities of construction, under M.R. & T.P. Act-1966 etc. A copy of said order dated 30/08/2003 is at Exhibit "E” of this petition.

43. The Petitioner hereto state that in spite of the Municipal authorities in general and the Building Proposal department under Chief Engineer (D.P.) in particular, were full aware about theft or misplacement amounting destruction of the said layout file No.GB/259 of 28/08/1951, with approved

layout of subdivision of plots and the condition letter No. A.E./18914/Sub. Dated 19/06/1953, it was corrupt practices the Building Proposal department has been nursing for last more than forty years that resulted in illegal approval & development that has taken place in 'A' to 'D" part of the layouts in Sanghani Estate in perticular and other such private layouts in Greater Mumbai in general.

44. The Petitioner/s hereto state that even after Petitioner hereto bringing this anomaly to the notice of then E.E.(B.P.) and Dy. Chief Engineer (B.P.) Eastern Suburb and in response to this request, Building Proposal authorities directing the heirs, administrators, and assignees of original owners to produce the original copy of layout plan and condition letter, as the same was not traceable in municipal office and in the absence of the same at owner's records, to get the entire holding of 'A' to 'D' layouts surveyed fresh as per the site conditions and send for approval to E.E.(B/P.) E.S.; the response of owners was indifferent as they may be afraid that their misdeeds of selling the Recreational Open Spaces would come out and will have to face the consequences. The copies of the letters addressed to 1) owners dated 26/09/2003, 2) the petitioner hereto 21/12/03 and 3) letter dated 24/08/01 addressed to the Trustees of Defendant No.1 hereto by E.E. (B.P.-E.S) are attached herewith and together marked as Exhibit "J".

45. The Petitioner/s state that the Respondent No. 01 is claiming to be owner of plot No. 07 where an UPASHRAY for religious rituals and functions is constructed against the condition No. 07 of condition letter No. A.E./18914/Sub. Dated 19/06/1953 with which sub-division layout is approved; as such owning plot Nos. 07, 09, 10 by them is also illegal. The said religious Trust and Respondent No. 01 hereto has illegally covered the compulsory open spaces around the UPASHRAY building on plot No. 07 and has appointed the Respondent No. 02 Shri. Paresh Virajlal Chabhadia Partner of M/S AVI Housing (Builders & Developers) hereto as developers for plot No. 09 and 10 for the construction of single building by demolishing existing building situated on the other side of 30 Ft. wide internal road opposite UPASHRAY building on plot No.07.

46. The Petitioner hereto state that in the light of what is express earlier, it is in the interest of the residents of the layout to restore the Garden (R.O.S.) on plot No 09 and 10 which is now vacant, towards required physical Recreational Open space and the excess Floor area used by illegally covering the open spaces around the UPASHRAY building on plot No. 07 by passing orders to demolish the same.

47. The Petitioner/s hereto state that similarly, the deficiency in Recreational Open spaces area of 'A' to 'D' portions of Sanghani Estate layout be made good by directing Municipal authority to make available to the resident of all the 'A' to 'D' portion of Sanghani Estate layout by blocking and reserving the number of plots which were given on lease by original owners of the said layouts and many cases the lease period is expired, to match the required 15% Recreational Open Space (Garden) of total continuous holding of all the Sanghani Estate layouts. Also by restraining the heirs, administrators, assignees of original owners of the layouts from entering in to new lease agreements for area which will match the total Recreational Open spaces equal to 15% of total area under continuous holding of all the 'A' to 'D' portions of Sanghani Estate layout together.

48. The Petitioner/s hereto state that the technical officers (Engineers) holding position of Chief Engineer (Development Plan) and heading Building Proposal Department of Municipal Corporation of Greater Mumbai and another officer in Director ( Engineering Services and Projects) for Municipal Corporation of Greater Mumbai had in principal accepted the fact that the layout plan files and ducuments of Sanghani Estate layout 'A' to 'D' portions are not traceable and Recreational Open spaces provided are not 15% as required by law and they have also accepted that the internal roads in Sanghani Estate private layout are prior to preparation and declaration of FIRST Development plan in 1967. Prior to 1967, Bombay Municipal Corporation (B.MC.) and number of other Local self government bodies, with the help of Town planning department of State Government, had been undertaking Town Planning Schemes. With this background of planning of road pattern and reservations of public amenities, old layout roads existing much prior to the drafting of First D.P. were shown in colour Burnt Siena in first (1967) Development Plan along with proposed D.P. roads, and all proposed as new Development Plan Roads were shown separately. The then power delegated Engineers of Respondent No. 04 hereto, without the knowledge of the Urban Development (U.D.) of State Government, unilaterally and fraudulently had been considering the old existing layout roads as D.P. ROADS and have been giving F.S.I. advantage of such intenal layout roads to parties and giving advantage of natural sub division of property and thereby advantages of F.S.I. of D. P. roads was given to developers. In the course of finalizing the Second Development all such layout internal roads, hand in glove with the Urban Development officers of State Government the Respondent No. 05, were fraudulently considered as Development Plan roads in Greater Mumbai and all the internal roads of private and Government layouts in 'N' ward Municipal limits were treated

and illegally accepted by Respondent No. 05 as D.P. Roads to give F.S.I. advantage to Developers. Builders vide order No. TPB/4392/5675/CR-189 /UD-11 (RDP) Dated 26/03/1993. Annexed hereto is the copy of information dated 07/02/2011 given by Executive Engineer (D.P.) on application under R.T.I. Act 05 and marked as Exhibit "K".

49. The Petitioner/s hereto state that in the above sequence and in continuation of technocratic jugglery in Local self government bodies, the senior most officers i.e. Ch.Engr. (D.P.-B.P.) and Dir (E.S.P.) of the competent authority misled through their internal reports, the Municipal Commissioner to commit number of irregularities willfully under so called discretionary powers for the reasons best known to the officers and the then and present Municipal Commissioners themselves. Following are the salient features of the functioning of engineering and administrative giants in local self Government (MCGM) and some of the past and present I.A.S. officers, managing the appointment as Municipal Commissioners, by openly flouting provisions of law by twisting the same under so called "Discretionary powers" they assume themselves :-

With reference to the Directors letter No. Dir/Es & P/4125/II dated 18-12-2002 a report dated 25-7-2003 was prepared by Executive Engineer (B.P.)ES/AN. After more than 7 months the said report was made to then Dir (ES&P) through then Dy. Ch. (BP) ES and C.E. (D.P.) Shri. Sane. The then Assistant Engineer (B.P.) had taken such a long time of 7 months to 'understand' the developer and ultimately made segmentation in favor of the developer through then E.E. (B.P.) ES. The salient features 'A to 'T' below of the multipurpose master copy and master piece report designed to hold good as "president" for new in coming Municipal Commissioners and for junior officers/engineers who will grow senior and acquire senior officers' positions.

1) A] C.T.S. record and P.R.C. are difficult to be obtained. To have the proposal made viable, he has requested to allow the development, pending required clearance from City Survey authorities. In lieu of F.S.I. one and additional T.D.R. loading.

B] is from approved Sainath Nagar layout vide copy of Standing Committee Resolution No.1297 approved on 31.10.1952 at pgs. C37-C41. The plot is in 'R' zone and affected by widening of 13.4 Mts wide Sainath Nagar Road, which takes entry from 30.48 Mts.

C] As the C.T.S. plans are not available, unauthorized sub-division will be regularized by charging penalty.

D] The major advantage of this proposal is clearing of built-up setback.

E] The separate P.R. Card of setback area will be insisted in the name of M.C.G.M. before occupation of the building.

F] The copies of Standing Committee resolution establishing authenticity of layout under reference No.AE/C-4161/Sub dt. 21st October 1952 may please be seen at pgs. C37-C41.

G] Affected by two village boundaries with two C.T.S. Nos. as stated. P.R. Card & C.T.S. plan for Ghatkopar village is available and is attached at pgs. C27 & C39 other one is not available with C.T.S.

H] The plot is from approved Sainath Nagar layout the layout is not implemented in revenue record as such; 7/12 at pgs. 221 - 225 (M/F) is still in the name of Shri Chandulal ValchandGandhi vide 7/12 at pgs. 221- 225 [M/F). P.O.A. and agreement with Shri Virendra Vora,

I] as submitted above, there are difficulties in sub-division of separate P.R.C. in words for plot under reference and separate C.T.S. plan. Architect has requested to allow development initially to 0.75 F.S.I. pending clearance from City Survey Authority & getting separate P.R. Card.

J] Separate P.R. Card in words & City Survey plan can be obtained in due course of time. As the bldg. is required to be reconstructed, part development may be allowed and part restriction may be levied to get record updated and to arrive at a stage of normal plot.

K] Plan may be approved considering plot area as per last existing area.

L] Submission of separate P.R. Card "for other plot will be insisted" before granting C.C. up to plinth & CTS plan of other plot under reference will be insisted before granting further C.C.

M] Considerations are requested to allow built-up area of building as per subdivision which is 405.44 Sq. Mtrs. and put up restrictions in phase-wise manner, concurrent with submission of revenue documents.

N] The plot under reference is from approved Sainath Nagar layout approved under S.C. Resolution No. 1297 dated. 29th August, 1951. The copy of approved layout terms & conditions [without plan] may be seen at pgs. C37/C41.

O] These conditions have become absolute and not relevant. Even amendment of layout by single plot owner is not possible.

P] In this case, it is submitted that layout is already developed and buildings were constructed in the early sixties & there is no further scope of providing R.G. The R.G. i.e. plot No. 6 is completely vacant. As there are constraints in provision of layout R.G. due to developed

layout, further R.G. provision may not be insisted upon another deficient R.G. [2104.10 - 1204.10 = 900 sq.mts) is required to be condoned.

Q] The physical R.G. as per D.C.R. 23, shall be proposed in plot admeasuring more than 1000 sq. mts, when it comes for development. ( as per sanctioned layout of Sanghani Estate there is no individual plot more than 800.Sq.Mtrs.)

R] The roads are now become D.P. Roads and adequate as per D.C.R. 22, table.

S] The layout owners are not traceable. The present proposal is submitted by individual plot owners for which sub-division order is received at pgs. C33-C35.

T] Considerations are requested not to implement layout term & conditions and not to insist amendment in layout and process the proposal as per D.C.R. 91 & tolerate the existing roads / R.G. as a fait-accompli.

Allow development:

i) In the absence of copy of approved layout plan.

ii) C.T.S. records and P.R. Card from City Survey Office.

iii) Additional salable component in lieu of F.S.I. ONE & T.D.R. loading.

2) Sanctioning and implementation of plotting of approved layout of plots on the holding of Sanghani Estate layouts of which Sainath Nagar is the 'A' portion and with reference to favoring approval to developer

who also had taken a plot for redevelopment in 'D' Portion of the

said layout.

3) The misleading interpretation of legal opinion sought about 'whether it was necessary to send the proposal for amendment of 'A' to 'D' layouts or any development in Sanghani Estate to Standing Committee after coming in force of M. R .&T. P. Act 1966 under which D.C. Rules 1991 are framed' for granting the permissions for subdivisions, layouts and building in M.C.G.M. .

4) The opinion given was misused, and was broadly in favor, interest of developer, to get rid of conditions imposed by the then Town Planning Department of Maharashtra with the intention to facilitate the approval by Standing Committee in 1953. In support of the above elaborations, attached herewith are the copies of i) Legal opinion dated 18/08/2003 given by the Municipal Law officer ii) Report bearing No.CHE/1588/DPBP/ES dated 08/09/2003 of then Chief

Engineer(Development Plan) iii) report No.CE/6130/BPES/AN dt.24-25/07/2003 of Dy. Ch. Engr. (B.P.-E.S.) submitted to then Municipal Commissioner through then Director (E.S.& P.) M.C.G.M. and the bunch is collectively marked as Exhibit "L".

5) Without getting, the holding of the entire layout transferred and reflected in the City Survey records of Collector Mumbai Suburban District as per the provisions of M. R. & T.P. ACT 1966, in terms of subdivision of plots, roads and Recreational Open Spaces approved by Standing Committee marked, amounts to defrauding the law and provisions there under made and enforced by state government and failing in duties / responsibilities of jointly demarcating on the holding and thus incorporating the same in the City Survey records with due revenue to government paid, it is illegal in functioning of Municipal departments under the authority and leadership of Municipal Commissioner to declare the internal roads of private layouts in existence prior to 1966 and shown in the first development plan (1966-67) the 'Internal roads of private layouts in existence' to be shown as Development Plan Roads in subsequent Development plan under the garb of condoning under discretionary powers is high handedness on the part of Municipal administration and is illegal.

6) For any reason the records in respect of sanctions and approvals accorded by the Municipal authorities is misplaced and/or lost or destroyed and even the authentic records are not available with the owners and then Architect, in that case it is obligatory on the part of Municipal administration to request / force the layout owners /plot holders to submit the fresh amended subdivision layout of plots with amendments if any and get the fresh amended approval as a part and extension of earlier approval accorded by Standing Committee in 1953. The owners and present plot holders refusing to respond and come forward to set the records right, the Municipal authority is duty bound to stop further development in the said holding of subdivision layout of plots and terminate the occupation given to the buildings in the layout and further stringent action of disconnection of Municipal water supply etc to buildings in the layout.

In support of 3) above, attached herewith are copies of i) Letter No.CE/3064/BSIII/AN dated24/08/2001. ii) CE/1532/BPES/AN dated 20/08/2001. iii) CE/8077/BPES/AN dated26/9/2003. iv) DyCh.E/10900 /BP/ES/dated21/12/2003. v) Letter dated 11/12/2003., the bunch is collectively marked as Exhibit "M".

50. The Petitioner/s hereto and beneficiary of use of said Recreational Open Space along with all other residents in the said layout, have reason to believe that the defendant No. 01 to 03 fully knowing well the orders dated 29/04/2003 passed by Honorable Judge Shri. A.T. Vaidya of City Civil Court Mumbai in Notice of Motion No/2270 of 2001 and judgment dated 30/08/2003 in S.C. Suit No. 2921 of 2001, for the part portion of Garden, the Suit Premises ( 1229 Sq.Yds), illegally conveyed, out of total Recreational Open Space including plot Nos. 09, 10, 14, 15, 16, in the name of defendant No.01, have started the process of illegal construction on said Recreational Open Space plot Nos. 15, 16 which were sold though illegal transaction (Conveyance deed) between original owners of the ‘D’ portion of said layout and Respondent No.01 hereto and presently the party to "Conveyance and Development Agreement" dated 30/01/2010, the Respondent No. 02 in connivance with the Respondent No.01 and Respondent No. 04, has started construction of Religious public building on internal 30 Ft. road with the excuse that the Respondent No. 05 has issued property card and area certificate to the Respondent No. 01.

51. The Petitioner/s here to, believe that Respondent No.03 is guilty of being party to the sale purchase transaction with original owner/Developer of layout for plot No.14 as the orders dated 30/08/2003 passed by Honorable Judge Shri. A.T. Vaidya, for Garden (R.O.S.) portion behind unbuildable plots No. 09, 10 and plot No. 17 the "Suit Premises" of S.C. Suit No.2921 of 2001 can be considered to have been valid and the judgment passed by the Trial Court in the said suit is binding upon all the parties, as the land under plot Nos. 14,15,16 is also Recreational Open Space meant for the benefit of all the residents of said layout, the sale of plot No.14, by the original owners of the layout, to Respondent No. 03 hereto is therefore illegal as the land under plot No.14 is the part and parcel of additional Recreation open space admeasuring about 1944.Sq.Yds., i.e. (1625.43 Sq, Mtrs.) insisted in the condition letter No. A.E./18914/Sub. Dated 19/06/1953, while Standing Committee according approval to the layout resolution No. 148 on 22/04/`953.

52. The Petitioner/s hereto vide appeal / applications for redresser of grievance had number of times approached the Chief Ministers of Maharashtra, present and past, with copies to Respondent No. 05 and other senior officers of various departments in Mantralaya and also to Municipal Commissioners, but there was no courtesy of appointing independent officers to inspect and /or discussing the issue to understand the gravity of criminal act, involved in the said issue, with aggrieved complainant, the Petitioner No. 01 hereto, on the part of Respondent No.01 to 06 hereto. Hereto annexed and marked EXHIBIT- "N" are the true copies of letters dated 19/05/2010 addressed to Chief Minister of Maharashtra State the copy of the same was marked to the Respondent No 04 hereto for speedy action.

53. The Petitioner/s hereto state that from 2001 onwards number complaint letters were address on the said issue to the Municipal Commissioners but there was on response and/or feedback and despite of Petitioner request for appointment on the issue the then Municipal Commissioner Shri. K. Shriwastav preferred to discuss the said issue without calling this Petitioner, on 30/10/2003 with the political persons who were representing builder developer, i.e. Shri. Datta Dalvi, Standing Committee Chairman and local M.L.A. Shri. Prakash Mehta. Thereafter also there were no intentions of in coming Municipal Commissioners to face the truth and the appointment sought was avoided. Copies of letters seeking appointment dated 24/05/10 and 07/03/11 are annexed herewith and marked as Exhibit "O".

54. The Petitioner/s hereto believe that the Respondent No. 04 the Municipal Commissioner, along with his powers delegated authorities i.e. from Sub-Engineer ( Building Proposal Department ) to the level of Chief Engineer(D.P. & B.P.) and Dir.(E.S. & P.), exceeded their powers vested with them by and under law, and further exceeding the scope of their power and function under provisions in law delegated to the officers and Engineers in the course of execution, demarcation and incorporation of the said subdivision layout of plots in the revenue records of Collector (Suburban District of Mumbai). In the absence of original records containing sanctioned layout plans, conditions, the prototype report prepared after the repeated complaints from 2001 onwards of this Petitioner No. 01 about deficient Recreational Open Spaces, a proto type report No. CHE/1588/DBBP/ES dt. 08/09/03, based on the report No.CE/6130/BPES/AN dt.24-25/07/2003 of Dy-Ch.Eng. (BP-ES),which, at the same time was used for another proposal of same Developer Mr. Virendra Vora who was represented, in meeting on this issue with then M.C. Shri. Karun Shrivastva on 24/10/2003 in the absence of main complainant, in public interest, and Petitioner No.01 hereto, by Shri. Datta Dalvi, the then Standing Committee Chairman and Shri. Prakash Mehta M.LA. Thereafter approving the report submitted from Sub-Engineer (B.P.) level to the level of Director (E.S. & P.), Municipal Commissioner gave his conditional approval and on the same approval precedence was created for all such approvals thereafter. Copy of the said report at Exhibit “L” is strong enough to show the defying of their framework of functioning in the course of fulfilling their duties and obligations as public servant.

55. The Petitioner/s hereto have reason to believe that the Respondent No. 05 Chief Secretary the administrative head of State of Maharashtra, under who, with delegation of powers, work i) Commissioner and Registrar of Registration of Documents ii) Office of the Charity Commissioner and Registrar of Societies. The Charity Commissioner office and the office of the Commissioner of Registration of documents have, hand in glove with Respondent No. 01, 02 and 03 and such other plot holders who have approached them, have given their consent for and /or registered such faulty and bad in law documents amounts to authorities mentioned herein have failed in their duties and acted against the provisions of law is a cognizable crime under I.P.C. Section 120-B, 218, 420 etc. The Collector (Suburban District of Mumbai) and the administration under him and the powers delegated authorities/ officers, of the Collector i) Sub divisional Officer responsible for collection of revenue to State Government, issuing of Non-Agricultural use with due verification of ownership documents and subdivisions or amalgamation of plots approved by Municipal Corporations and or local self Government Bodies, and ii) the Superintendent of land records for the district through his Inspector of Land records as well as iii) the City Survey officers and the Tahsildars, for issuing Property Cards and area certificates on verifying the ownership of the entire holding of the layout and agreements to sale as also conveyance deed registered of individual plots sold in the layout and surveying the entire layout as approved by Municipal Corporation or local self Government bodies. All the authorities mentioned under District Collector have failed in their duties and against the provisions of law issued i) N.A. certificates and clearance ii) Issued property cardswith area certificates and ownership titles in favor of parties those cannot be lawful owners of subdivided plots reserved and approved by Municipal corporation in the Subdivision of plots layout as Recreational Open Spaces with conditions imposed while approving the layouts. Hereto annexed and marked EXHIBIT- "P" is true copies of orders passed by the then Resident Collector Shri. Soni and property card for plot No.15, 16 issued in favor of Respondent No.01.

56. The Petitioner/s hereto have reason to believe that the Respondent No. 06 the Senior Inspector of Police Park site Police Station, Surya Nagar Vikroli (West) had purposefully failed in his duties and favored the Respondent No. 01 & 02 by not taking action for performing Muhurta of such illegal construction on Recreational Open Space meant for the use and benefit of resident of the layout and further more not taking action for keeping hired security guards, to prohibit the resident of the locality from entering and using the Recreation Open Space., in spite of Petitioner hereto attaching all relevant documents including copy of condition imposed while

approving the layout under letter No. A.E./18914/Sub. Dated 19/06/1953 and copy of the order dated 30/08/2003 passed by the Honorable Judge Shri. A.T. Vaidya of City Civil Court Mumbai which amounts to helping the defendant No.1 & 2 for their action amounting to contempt of court and action amounting to crime under Indian penal code on the part of Respondent No.01 to 05 for not insisting on, jointly incorporating the layout approved by respondent No. 04 in the presence of representative of Respondent No.05, the Superintendent of land records and Sub divisional officer of Collector of Greater Mumbai District who have failed in their duties and have issued property cards and area certificate and property plans in favor of Respondent No.01 and number of such other plot holders in said layout and many such other layouts in Greater Mumbai and elsewhere.

57. The Petitioner/s hereto further state that a representation/ appeal dated 28/06/2010 was made in this respect with all necessary annexure but till date no reply or action taken is communicated to this petitioner by present previous Collectors of Mumbai Suburban District and the illegal individual subdivision of plots in the absence of certified copy of Sanghani Estate Layout 'A' to 'D' portions approved under Proposal File No. GB/259 of 28/08/1951 and false and fabricated sale documents in respect of Recreational Open Spaces are corruptly considered as valid and property Cards and Area Certificates are issued hand in glove with Municipal officers, Registrar of Documents officers etc. The 'A' to 'D' portions of layout technically scrutinized and made approvable by then Municipal Commissioner and phase wise concurrence is given by Standing Committee. Annexed hereto is the appeal dated 28/06/2010 and is marked as EXHIBIT-"Q".

58. The petitioner/ state that the City Survey Officer (Mulund) be restrained from incorporating layouts holdings and the individual subdivided plots in to revenue and city survey records of the Respondent No.05’s power delegated officers the Collector of Suburban District of Mumbai be restrain Also pending hearing and final disposal of this petition, the defendant No. 01, 02 are restrained, by an appropriate order and or injunction, to stop the construction on plot No.09, 10,15,16 and further restraining them from prohibiting the residents by illegally keeping custody through Security guards and by demolishing the illegal structures under construction above and under ground level.

59. The petitioner/s state that it is gross indifference on the part of state Government and the Municipal Corporation of Greater Mumbai's style of administering the systems with indifference towards their prime most duties

for wellbeing of citizens and towards the oath taken while assuming the office of responsibilities and duties, as past over ten years this issue and such other issues are continuously being brought to the notice of administrative heads and the rulers supposed to be functioning under the provision of the Constitution of India but there being almost no response, which has forced petitioners to file this petition on the following amongst other grounds.

a) that vide number of complaints and representations/appeals in respect of tracing out the layout sanction file No.GB/259 of 51 which was lost or destroyed hand in glows with the then Architect-Owners and with the connivance of some of the Municipal Engineers/officers with ulterior motive of misuse of Recreational Open Spaces in the layout, required by law, is still not traced out or theft of the said file with approved layout map is not reported to police, by Respondent No.04 hereto.

b) that the sanction to layout of subdivision of plots granted by Standing committee of Bombay Municipal Corporation (MCGM) under Resolution No.148 dated 22.04.1953 is termed as "supposed to have approved layout" to nurse the corrupt practices.

c) That the existing layout road pattern approved in 1953 and shown in the First Development plan of Greater Mumbai in 1967, were fraudulently considered as Development plan roads in order to give illegal benefit of Natural Subdivision and F.S.I. advantage of supposed to be Internal Road deriving entry from Sanghani Estate 'D' portion layout, to the subsequent development came up in 1972 onwards on adjoining property bearing S. No.162 Hissa No.07, on the West side of Sanghani Estate 'D' portion property boundary i.e. S.No.162 H.No.2 (Pt) where Garden ( R.O.S.) 'B' is located.

d) That existing internal Roads of Sanghani Estate 'A' to 'D' portions have been high handedly termed as Development plan Roads and without completing proper acquisition procedure from original owner and / or plot holder owners of said layout and getting the ownership of land under such

existing internal roads, prior to first Development plan, of Sanghani Estate 'A' to 'D' portion layout, transferred in the name of Municipal Corporation of Greater Mumbai at collector's revenue records, the Respondent No. 04 and the powers delegated Engineers/ officers of Respondent No. 04 have illegally termed the said roads as 40 Ft wide D.P. Roads and without having said 30 Ft. roads incorporated along with all the features of 'A' to 'D' portion layout, have fraudulently granted the F.S.I. of illegally widen width of road falling in such plots allowed to be developed. At Exhibit "K" of this petition is the copy of the remarks dated 07/02/2011 offered, by E.E. (D.P.) in response to application under R.T.I.Act05.

60. The petitioners have not filed any other petition before this Hon'ble Court or any other court , arising out of the subject matter of this petition and further say that there is no any efficacious and effective quick remedies available under the law otherwise than the remedy in writ jurisdiction.

61. The petitioners state that the cause of action for filing this petition has arisen in Mumbai and this Hon'ble court has jurisdiction under Article 226 of the constitution of India to try and entertain this petition.

62. The Petitioner/s state that the period of limitation is not applicable to this petition as there is continuous cause of action.

63. The petitioner seeks leave to add, amend and alter the writ petition if and when called up on by the Hon'ble Court and relied upon a list of documents which are annexed herewith.

64. The petitioners are paying fixed court fees for the purpose of this petition.

65. The Petitioner/s therefore pray that :-

a. i) The office bearers and members of Respondent No. 03 be restrained from entering in to any agreement to develop the

said plot No.14, with any developer/s till the final disposal of this writ petition.

ii) The Deed of Conveyance entered and executed between Respondent No. 01 hereto, and the original owners of the

layout taken on revenue records by Respondent No. 05 hereto, is ab-intio, fraudulent, bad in law. Further ownership Right of Respondent No.3 for the plot of Land bearing No. 14 and ownership Right of Respondent No.1 and 2 for Land bearing plot No. 09, 10, 15, 16 as also other plots in 'A' to 'D' portions of Sanghani Estate layouts and properties having common boundary with Sanghani Estate 'A' to 'D' layouts more particularly S. No.162 Hissa No.7, are invalid together with the N.A. permission so obtained and other changes that have taken effect on records including issuing of property cards and area certificate in favor of Respondent No.1 to 3 and others in the layout need to be cancelled and declared invalid on the lines declared by Honorable City Civil Court judge Shri. A.T. Vaidya vide his order dated 29/04 /2003 in the notice of motion No.2270 of 2001 and judgment dated 30/08/2003 in S. C. Suit No.2921 of 2001 at Mumbai.

b) The Hon’ble Court may be pleased to direct and order Respondent No. 05 to take necessary action against Respondent No.1 , 2 and powers delegated officers of Respondent No. 04 and -5 under the relevant provision of Indian Penal Code like 120-B, 118, 420 etc., for the offences committed which are punishable under the said act. The said Offences and/or act committed by Respondent No.1, 2, 4, 5 and 6 are mention herein below;

i) for wrongfully restraining the residents of the said locality and lay-out by appointing private security guards.

ii) for starting illegal construction activity on the piece and parcel of land reserved as “Public Recreation” under M.R.T.P. Act against Respondent No. 01, 02 and concern officers engineers of Respondent No.4, 5.

iii) preparing false documents and with the Misusing of powers vested with said authorities and officers of Respondent Nos. 04 and 05.

iv) for effecting registration of documents without verifying the authenticity of documents produced before Registrar of Documents and Charity Commissioner's office the powers delegated authority of Respondent Nos. 05.

c) The Hon’ble Court may direct Respondent No.5 or appropriate authorities to register the cognizance of the act covered under the provision Indian Penal Code such as under Section 218 & 120-B etc against Respondent No.04. The Municipal Commissioners and concerned Officials with vested powers from Director (E.S. & P.) level to concerned Sub Engineer level for exercising the powers beyond the Jurisdiction together with the act of negligence for misplacing the approved Original layout plans and other important papers and files.

d) The Hon’ble Court may pleased direct Respondent No. 04 and his concerned officials with whom the powers so vested from Director (E.S.&P) level to concerned Sub Engineer level to issue stop work order to any further construction of building proposal and/ or activity on the said land specially on “D” portion of the layout, and further on the ‘A’ to ‘C’ portion of the layout in general. It may further directed to issue complete stop work notices for all the activities , till the amended layouts in which 15% recreational open spaces need to be reserved compulsorily and the same shall be approved by Respondent No.04, and accordingly the necessary provision shall be effected in the revenue records of Respondent No.05 by conducting the surveying of the entire holding jointly.

e) Pending hearing and final disposal of this Suit the Hon’ble Court may be further pleased to order and direct Respondent No.01, 02 and their representatives and/or their agents to stop all such activities related to construction of building on plot No. 07, 08, 09, 10 and plot No.15, 16, in ‘D’ portion of layout.

f) The Hon’ble Court may be further pleased to direct Respondent No.04, 05 to produce Original papers, orders, documentary proofs by way of plans, layout and resolutions passed etc. proving that the plot Nos. 09, 10 were need to be kept open and reserved as part of Recreational Open Space suggested by Municipal authorities (B.MC.) and insisted time to time in the course of scrutiny of lay-out plan under No.GB/259 of 1951 from 1951 to 1953 and continuous to

Recreational open space (Garden 'B'). Till the same is proved with documents by Respondent No.01, 04 and 05, the Respondent No.01 and 02 may be directed and ordered to stop the construction on plot No. 09, and 10. since plot No. 09, 10 are the part of Recreation Open Space, deriving access from 30 Ft. wide layout road called Gaodevi Road opposite Upashray building on plot No.07 , as in the absence of original approved layout plan, it goes with out saying that the said Garden (R.O.S.) Plots No. 09,10 have been forcefully occupied and fraudulently ownership records were created on the lines of plot No.15, 16 in favor of Respondent No.01, and to the original triangular portion of Recreational Open Space for the benefit of all residents to 'D' portion Lay-out.

g) that this Hon'ble court be kind enough further direct and order that Respondent No.03 to demolish the compound wall so constructed between plot No.14 and 15 and between plot No. 14 and triangular garden portion, converted into rectangular by illegal Give and Take with adjoining property, on Survey No.162 Hissa .No.2 i.e. C.T.S.Nos.123, 124 Village Kirol Ghatkopar at back side of plot No.14 for the benefit of residents of layout and their entry to the Recreational Open Space.

h) The Hon’ble Court may be further pleased to direct Respondent No. 04, 05 to block and reserve the leased out plots by the original developers admeasuring in all over 5000.Sq. Mtrs. of which the leased period is over in the ‘A’ to ‘D’ portion of said layout and restrain permitting any change over of ownership etc of such plots by Respondent No. 06 and the Respondent No. 04 not to approve or entertain any building proposal also direct Respondent N0.04 to be vigilant redevelopment on the said leased out plots.

i) that this Hon'ble court be kind enough to issue writ of mandamus or in the nature of writ of mandamus, ,writ of certiorari or in the nature of certiorari and / or any other appropriate writ in the nature of mandamus or other writ, directing respondent No. 01 to 06 .

j) That pending the hearing and final disposal of this petition , the respondents No.01 to 06 and or their agents representatives

be restrained by an order of injunction of this Hon'ble court from :-

1) carrying out any act of construction activity on plot Nos. 07 to 11 and 14, 15, 16, on Garden 'B' (Recreation Open Space) of 'D' portion in particular and 'A' to 'C' portion of layout in general

2) to restrain Respondent No. 04, 05 from approving any proposal of building activity of any whatsoever nature till the amended layout with composite development proposed is approved by Respondent No.04 and the same is incorporated in the revenue records of Respondent No. 05, as stated herein above in prayer clause No. d.

k) Interim and ad-interim reliefs in terms of prayer clauses a, b, c, d be granted;

l) Any such other and further relief as deem fit by this Hon’ble court.

Mumbai

Dated on this 08th day of June 2011.

(Madhav Gajanan Deshpande)

Petitioner No. 1 IN PERSON

(Ketan Praful Shah)

Petitioner No.2

V E R I F I C A T I O N

I, Madhav Gajanan Deshpande, age70 year residing at 07, Kaustubh-dham C.H.S. Ltd., 23, Sanghani Estate ‘D’ portion layout, Gaondevi Road, Ghatkopar (West), Mumbai-400086, the plaintiff above named do here by solemnly declare that what is stated in para 01 to 59 is true to my own knowledge and what is stated in remaining paragraph numbers 60 to 65 are stated on the information gathered, and I believe the same to be true and correct.

Solemnly declared at Mumbai. )

On this 08th day of June 2011. )

(Madhav Gajanan Deshpande)

(Petitioner No. 1 IN PERSON)

(Ketan Praful Shah)

Petitioner No.2

FORUM FOR JUSTICE

Saturday, July 30, 2011

Sunday, July 24, 2011

Friday, July 22, 2011

APPLICATION FOR PRAYING URGENCY PIL nO.31 OF 2011

PIL No. 31 of 2011 Mumbai High Court before Honorable Chief Justice on 28-7-2011 for admission

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