Judgment :- Khanwilkar, J. Rule. Rule made returnable forthwith. Counsel appearing for the Respondents waive notice. By consent, Rule called out and heard. 2. By this Petition under Article 226 of the Constitution of India, the Petitioners are essentially questioning the legality and validity of the Notice dated 19/4/2008 issued by the Assistant Commissioner G/North ward of Municipal Corporation of Greater Mumbai in terms of Section 89 read with Section 165 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the Act for the sake of brevity) and the order passed by the said Authority dated 6/8/2008 directing the Petitioners to vacate the structure standing on Final Plot No. 878 & 879 of TPS-IV Mahim area and hand over the same to the Corporation forthwith failing which demolition action under Section 90 of the Act would be initiated in relation thereto. 3. The Petitioners have adverted to chequered history both with regard to the ownership, right, title and interest in respect of the disputed land being Final Plot No. 878 and 879 as also to legal proceedings in relation to the said property. However, it may not be necessary to advert to each of the said facts and events to answer the grievance of the Petitioners raised in the present Petition which pertains to the Notice issued by the Corporation under Section 89 of the Act and the threatened action of demolition of the structure standing on the plots in question. We shall, however, refer to the relevant facts to answer the controversy brought before us. 4. According to the Petitioners, Final Plot No. 878 and 879 are both adjacent to each other and have had the benefit of two motorable accesses passing through Plot No. 879. One of the motor access initially passed through Final Plot no. 878 and thereafter Final Plot no. 879. It is stated that one Mulji Shah, husband of Petitioner No. 1 and father of Petitioner No. 2, became the owner of Final Plot no. 879 of TPS-IV Mahim admeasuring 1305 sq. yards out of 3640 sq. yards by adverse possession. The said Mulji Shah died on 17th August, 2007 leaving behind him Mr. Mukesh Mulji Shah (son) and Jayashree (daughter) apart from the Petitioners as his heirs and legal representatives. The Petitioner No. 1 claims to be the owner of Plot bearing Final Plot No. 878 admeasuring 1000 sq. yards out of 3640 sq. yards by adverse possession. The said Mulji Shah died on 17th August, 2007 leaving behind him Mr. Mukesh Mulji Shah (son) and Jayashree (daughter) apart from the Petitioners as his heirs and legal representatives. The Petitioner No. 1 claims to be the owner of Plot bearing Final Plot No. 878 admeasuring 1000 sq. yards of TPS-IV Mahim on account of a registered conveyance executed in her favour. 5. It is stated that said Mulji Shah and thereafter his son Mukesh has been carrying on business of automobile garage and connected activities on the said Plots since last more than 46 years. It is common ground that sometime on 24/2/1962 Award was passed under Town Planning Scheme-IV Mahim area under the provisions of MRTP Act. As per the said Scheme, original Plot No. 227 admeasuring 4874.05 was divided into Final Plot No. 878 ad-measuring 1000 sq. yards. Thereafter, Final Plot No. 878 was allotted to Javales in lieu of plot of land bearing Survey No. 1223 of original Plot No. 231 admeasuring 1617 sq. yards. Similarly, Final Plot No. 879 ad-measuring 3640 sq. yards was allotted to Jetha Banji in lieu of land Survey No. 1218 of original Plot No. 227 admeasuring 4874.05 sq. yards. The Town Planning Scheme came to be finalised on 15/8/1963. In the meantime, however, it is stated that a Lease Deed was executed between Khatau Banji as administrator of estate of late Shri Jetha Banji-lessor and predecessor of Petitioners Mulji Shah as lessee on 20/10/1962 in relation to land bearing Cadastral Survey No. 1218, Lower Parel Division corresponding to New Survey No. 1772 of original Plot No. 227. Lease was initially for three years commencing from 15/10/1962 with an option of renewable thereof for further two years. The Petitioners have placed reliance on the proceedings between one Shyam Morarji-administrator for the estate of Late Mr. Jetha Banji who had filed suit for eviction against the predecessors of Petitioners said Shri Mulji Shah and his other sister concerns in connection with land bearing New Survey No. 1772, CS No. 1218. The said Suit had abated on 19/9/1977. According to the Petitioners, since then no one came forward to collect rent or exercise right as lessor or owner or landlord of the predecessor of the Petitioners Shri Mulji Shah. The said Suit had abated on 19/9/1977. According to the Petitioners, since then no one came forward to collect rent or exercise right as lessor or owner or landlord of the predecessor of the Petitioners Shri Mulji Shah. It is in this background the Petitioners claim that predecessor of the Petitioners (Mulji Shah) had become owner of land ad-measuring 1305 sq. yards out of 3640 sq. yards in Final Plot No. 879 of TPS-IV by adverse possession. It is unnecessary to elaborate further except to state that the Petitioners assert that they are in lawful possession of the said portion of land forming part of final Plot No. 879 in their own rights. 6. As aforesaid, in so far as Final Plot No. 878 admeasuring 1000 sq. yards is concerned, the Petitioners assert that Petitioner No.1 has become owner thereof. It is stated that erstwhile owners namely the heirs of the original owner Mr. Javale transferred the said Plot in favour of the Petitioner No.1 initially acquiring 83.4% ownership rights therein by Conveyance dated 16/8/1988 and later on balance 16.66% ownership/rights therein by another registered Deed of Conveyance dated 31/12/2005. In the present proceedings, however, it is not necessary to delve upon the claim of ownership of Petitioner No.1 in respect of Final Plot No. 878 in TPS-IV Mahim. Suffice it to observe that even in respect of Final Plot No. 878 the Petitioners assert that they are in lawful possession thereof in their own rights. 7. It is common ground that Notice under Section 89 of the MRTP Act was issued against the predecessor of the Petitioners Shri Mulji Shah on 29/8/1975 calling upon him to vacate the structures from Final Plot No. 878 so as to enable the Corporation to hand over vacant possession of the plot to the owner/allottee. In connection with the said Notice, the predecessor of the Petitioners filed Suit No. 6544 of 1975 for declaration that the notice was bad in law and illegal and the same should not be acted upon. The said Suit was, however, later on withdrawn with liberty to file a fresh Suit. It is stated that the said Mulji Shah filed another Suit No. 7540 of 1977 amongst others challenging the TP Scheme and for declaration and injunction. However, no relief was granted in favour of predecessor of the Petitioners in the said Suit. The said Suit was, however, later on withdrawn with liberty to file a fresh Suit. It is stated that the said Mulji Shah filed another Suit No. 7540 of 1977 amongst others challenging the TP Scheme and for declaration and injunction. However, no relief was granted in favour of predecessor of the Petitioners in the said Suit. Inspite of that, the notice issued under Section 89 of the Act on 29/8/1975 was not taken to its logical end by the Planning Authority. However, another Notice under Section 89 of the Act was issued on 8/8/1984 for removal of the structure standing on Final Plot No. 878. That notice was challenged by Arun Sales Pvt. Ltd. by way of Suit No. 5822 of 1984 for declaration that the said Notice was not binding. It is stated that in the said suit consent terms came to be filed whereby the original owners Javle ultimately agreed to transfer Final Plot No. 878 to M/s. Prabha Builders of which Petitioner No.1 later on became the sole proprietress. According to the Petitioners, the Petitioner No.1 has become the owner of the said Final Plot No. 878 admeasuring 1000 sq. yards consequent to execution of registered Deed of Conveyance dated 16/8/1988 and 31/12/2005. 8. The Petitioners have then referred to other proceedings between the Petitioners and Respondent No.3 who later on purchased Final Plot No. 879 by way of registered Deed of Conveyance dated 28/12/2004 on “as is where is” basis and subject to rights of the existing tenants of the occupants. The predecessor of the Petitioners Mulji Shah and Petitioner No. 1 had filed Suit No. 5570 of 2005 against the Respondent No.3 in which ad-interim relief was granted on 23/12/2005. The interim application was disposed of on 29/4/2006 modifying the ad-interim relief to the extent allowing the said Mulji Shah and Petitioner No.1 to have access No. 1 for foot only, instead of motorable access. The said order was challenged by way of Appeal from order before this Court and eventually before the Apex Court by way of SLP (Civil) No. 1868/2008 which has now been finally disposed of on 2/4/2009. The said order was challenged by way of Appeal from order before this Court and eventually before the Apex Court by way of SLP (Civil) No. 1868/2008 which has now been finally disposed of on 2/4/2009. The Appeal has been allowed to the extent indicated in the said Judgment of the Apex Court which directs that the Petitioners would be entitled to a motorable access from the main road to Plot No. 878 through Plot No. 879 in their possession either till the disposal of the Suit or till the construction of the 40 feet wide DP road running adjacent to Final Plot No. 878 by the Corporation in terms of assurance given by it on 7/8/1984 in Writ Petition No. 1667 of 1984 and also in terms of the directions given in Writ Petition No. 2443/2006 filed by the Respondent No.3 herein before this Court. 9. Reverting to the challenge in the present Writ Petition filed by the Petitioners herein, the same is in respect of Notice issued by Respondent No.2 on 19/4/2008 under Section 89 read with Section 165 of the MRTP Act. The said Notice was issued on account of the order passed by this Court in Writ Petition No. 2443 of 2006 filed by the Respondent No.3 herein before this Court. By the said Writ Petition, Respondent No.3 prayed for direction to be issued against the Corporation to take steps to construct proposed development Plan Road and to remove the contravening structures admeasuring 753 sq. feet. One of the Petitioners herein was impleaded as Respondent No.6 in the said Writ Petition, because the direction sought for removal of contravening structure was concerning the Petitioner. It would be appropriate to reproduce the order dated 14/2/2008 disposing off the said Writ Petition. The same reads thus:- “1. In this petition filed under Article 226 of the Constitution of India, the petitioners have prayed that the respondent Nos.1 to 5 be directed to take steps to construct the proposed Development Plan road shown in green line on the plan at Exhibit B and to remove the contravening structure admeasuring 753 sq.ft. shown in yellow on the plan at Exhibit E annexed to the Writ petition. shown in yellow on the plan at Exhibit E annexed to the Writ petition. Further, the petitioners have prayed to implement the Town Planning Scheme IV and prevent the non conforming use of the structure in contravention of Regulation 24 of the Regulations Controlling the development of the area of final scheme and interim relief in that regard are also prayed. 2. During the course of hearing, the learned counsel for the parties have referred to various documents, maps, as well as pleadings taken up in the Writ Petition even with reference to other litigations pending between the parties which are in respect of Plot No.878 & 879. It is not necessary for us to go into these controversies. Suffice it to say that the parties are ad idem that the Corporation must take necessary steps for removal of the offending structures which are there on the proposed development plan road. 3. We may note that the Corporation has filed an affidavit on record as late as on 5th December, 2007 stating that there are contravening structure between Final Plot Nos.878 and 879 and they had already served a notice in the year 1975 and the Corporation is proceeding with the notice in accordance with law. Learned counsel appearing for the respondent No.6 however stated that the said notice was not in relation to the structures between Final Plot No.878 and 879 and the same was not served upon the said respondent and this pleading on facts is kept open. The Corporation is obviously at liberty to proceed in accordance with law and consider all the controversies raised by the respondent No.6 before us. 4. We dispose of this petition with the observations that the Corporation shall take action as stated in the affidavit relating to structures on plot No.878 and 879 and to which the respondent No.6 would be entitled to take up such pleas as may be judicially available to them. As far as the offending structures on the Development Plan Road are concerned, the Corporation shall take immediate steps in accordance with law. 5. Petition is accordingly disposed of with no order as to costs.” (emphasis supplied). 10. Pursuant to the above decision, the Respondent No.2 issued the impugned Notice on 19/4/2008 to the Petitioners herein. As far as the offending structures on the Development Plan Road are concerned, the Corporation shall take immediate steps in accordance with law. 5. Petition is accordingly disposed of with no order as to costs.” (emphasis supplied). 10. Pursuant to the above decision, the Respondent No.2 issued the impugned Notice on 19/4/2008 to the Petitioners herein. The said Notice reads thus: “WHEREAS the Government of Bombay (now called the Government of Maharashtra) has been pleased to sanction the above Town Planning Scheme under Section 51(1) of the Bombay Town Planning Act, 1954, XXXCII of 1955 on the 20th May, 1963 and further to state 15th August 1963 to be the date on which the said Final Scheme shall come into force, in the Government Notification, Local Self – Government and Public Health Department No.TPB/1963/R dated the 20th May 1963 published in Part-I of the Bombay Government Gazette dated the 26.5.1963 and hereinafter referred to as the said T.P. Scheme. “WHEREAS under section 88(a) of the Maharashtra Regional and Town Planning Act, 1966, hereinafter for the sake of brevity referred to as “the said Act” all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances. “AND WHEREAS under Section 88(a) of the said Act all rights in the original plots which have been reconstituted shall determine, and the reconstituted plot shall become subject to the rights settled by the Arbitrator. AND WHEREAS the original holding forming Original Plot No. 227 has been reconstituted under the above Final Scheme into F.P. 878, F.P. 879 and 40’ wide Development Plan Road AND as more particularly delineated in the plans of the Final Scheme. You are aware of the Notice dated 19th August, 1975 issued under NO. TPS/IVB/925/89/1 in respect of O.P.22, to Mulji Shah, Proprietor of Joy Auto Works and Notice dated 8th August, 1984 issued under NO. TPS/IV/227/89/1 to Arun Sales (Pvt.) Ltd., in respect of Original Plot No. 227 of F.P. 878 of the Scheme both of which were subject matter of challenge in Bombay City Civil Court Suit No. 6544 of 1975 and 7540 of 1977 and which suits came to be withdrawn and Suit No. 5288 of 1984 which came to be compromised between the private parties leaving the Notices dated 19th August, 1975 and 8th August, 1984 unchallenged and consequently inforce. AND WHEREAS you continue to occupy the said land and the said structure in Original Plot No. 227 and Final Plot 878 and Final Plot 879 for a non confirming use of motor repair activity and garage in contravention of the Regulations Controlling the development of the area of the above Final Scheme. Now, therefore, you are informed that you are occupying the land and the structure in Original Plot No. 227, Final Plot No. 878 and 879 AND WHEREAS the said land is falling on Final Plot No. 878 and 879 is reserved for residential user and is/or being used for a non-confirming use in contravention of Regulation No. 24 of the Regulations controlling the development of the area of the above Final Scheme and the structure in your occupation is in contravention of the said scheme and hence you are not entitled to occupy the same under the above Final Scheme and further liable to be summarily evicted from the structure which are in contravention of Regulation 24 of the Regulations controlling the development of the area of the Final Scheme by the Planning Authority or any of its officers authorized in that behalf by that Authority, as provided under section 89(1) of the said Act. Now, therefore, I call upon you under Section 89 read with Section 165 of the said Act and the Rules made thereunder to show cause why you should not vacate the structure and the land in your occupation within 30 (thirty) days from the date thereof, failing which, you will be summarily evicted therefrom without any further reference to you in the above matter, as and in the manner provided under the said Act. If you resist to obstruct your eviction from your occupation all necessary actions under section 89(2) of the said Act and the Rules framed for the purpose including inter-alia launch prosecution under section 188 of the Indian Penal Code, will be taken which please note.” (emphasis supplied). 11. The Petitioners appeared before Respondent No.2 in response to the said Notice and made detailed submissions raising diverse contentions which are more or less reiterated in the present Writ Petition. Respondent No. 2 has adverted to the broad stand of the Petitioner in the order passed by him on 6/8/2008. Respondent No.2 has also adverted to the stand taken by the Department as well as the Respondent No.3. Respondent No. 2 has adverted to the broad stand of the Petitioner in the order passed by him on 6/8/2008. Respondent No.2 has also adverted to the stand taken by the Department as well as the Respondent No.3. After having adverted to the said stand, without analysing the same muchless considering the question about the justness and appropriateness of issuance of notice in question, the Respondent No.2 proceeded to pass only the operative order bereft of any reason in support thereof. It would be useful to reproduce the entire order of the Respondent No. 2 dated 6/8/2008, which is subject matter of challenge in the present Petition. The same reads thus:- “The Assistant Engineer Town Planning, G/North explained that, as per town planning scheme, Bombay City No. IV (Final) (Mahim Area) sanctioned by the State Government the original plot No. 227 was reconstituted into final plots bearing F.P. No. 877,878,879 & 40’ Wide T.P.Road. The F.P.no. 878 stood in the name of Shri Vinayak Chintaman Jawale and F.P.No. 879 stood in the name of Shri Khatau Bhanji. The said F.P. No. 878 & 879 is permitted as per the T.P. Scheme is residential. The said F.P. No. 878 & 879 are affected by one contravening structure which is falling on the boundary lines of two plots then occupied by Shri Mulji Shah, the Proprietor of M/s. Joy Auto Works. The contravening structures in the town planning scheme area are required to be demolished by the planning authority in view of the provisions of Maharashtra Regional and Town Planning Act, 1966, and consequent provisions are made under respective Town Planning Schemes. As per the provisions of aforesaid act the planning authority i.e. The Municipal Corporation is in power to demolished these structures by recourse to the provisions of section 89/90 of the said act and for that matter, legally it is not obligatory to point out alternative accommodation for shifting of the occupants/tenants of such structures. However, the corporation had adopted certain policy to point out suitable accommodation for shifting occupants/tenants of such structures strictly on humanitarian considerations. From the previous file papers it is learnt that M/s. Joy Auto Works have offered alternative accommodation in form of piece of land adm. About 500 sq. However, the corporation had adopted certain policy to point out suitable accommodation for shifting occupants/tenants of such structures strictly on humanitarian considerations. From the previous file papers it is learnt that M/s. Joy Auto Works have offered alternative accommodation in form of piece of land adm. About 500 sq. yards at Powell’s land, Industrial Estate at Kandivali in lieu of their present premises on Final Plot No. 878 and adjoining plot in Town Planning Scheme IV, Mahim by the corporation in the year 1975, but they did not availed of it and the offer was subsequently cancelled by Ward Officer (Estates), Licence Department. M/s. Sumer Builders Pvt. Ltd. Has filed a writ Petition No. 2443 of 2006 against the Corporation and prayed for to implement the Town Planning Scheme – IV (Mahim) by developing the proposed development plan road and to remove the contravening structure ad. 753 sq. ft. i.e. M/s. Joy Auto Works from the Petitioner’s property, F.P. No. 879, TPS-IV of Mahim Division. The afore stated petition is disposed off by order dated 14.2.2008 with an observation that, the corporation shall take action as stated in the affidavit relating to the structure on Plot No. 878 & 879 and to which respondent No. 6 .i.e. M/s. Joy Auto Works would be entitled to take up such pleas as may be judicially available to them. As far as offending structures on the Development Plan Road are concerned, the corporation shall take immediate steps in accordance with law. In view of the aforesaid order a draft notice which was approved by Sr. Council, Shri Walavalkar was forwarded to this office by Assistant Law Officer to issue the parties. Accordingly, this office has issued a notice U/s. 89 of M.R. & T.P. Act to Ms. Prabhavati Mulji Shah and Kiran Mulji Shah. Therefore, Ms. Prabhavati Mulji Shah and Shri Kiran Mulji /shah have to vacate the contravening structure on the said plot as T.P.Scheme. As stated by Shri Kiran Mulji Shah, the plot bearing F.P. No. 878 of Town Planning Scheme No. IV of Mahim Area belongs to him as they had purchased the said plot Previously the adjacent land below the contravening structure was one. The consent regarding the contravening structure was filed in the year 1984 and then the ownership for the same was approved since 1984 till today. The consent regarding the contravening structure was filed in the year 1984 and then the ownership for the same was approved since 1984 till today. As per T.P. Scheme, the Final Plot No. 878 is belongs to Shri Jawale and Final Plot No. 879 is belong to M/s. Khatau Bhimji. The peace and parcel of Final Plot No. 879 was given to us by then owner i.e. M/s. Khatau Bhimaji on lease basis and after that this structure was sold as it is with. Now, the final plot No. 879 is purchased by M/s. Sumer Builders. The documents submitted by Shri Kiran Mulji Shah in respect of the notice structure are as under:- 1. Xerox copy of Indenture of lease, duly attested, dated 20th October, 1962, between Khatau Bhanji as the Lessor of the one part and Joy Auto Works consisting of V.H. Shah, S.N.Vira and Mulji Umarshi Shah as partners as Lessee. 2. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758(4 & 4A) land with shed. 3. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758 (6) land with C.I. Shed. 4. Xerox copy of Assessment Bill, duly attested, for the year 2004-2005 in respect of Property No. G-2758(7) land with Auto Workshop. 5. Xerox cop;y of letter, duly attested, from the Office of Assistant Assessor and Collector dated 28th November 1997 U/No.ACGN/2459 land with shed inter alia it is mentioned that first date of assessment of structure is prior to 1961-62 in respect of property bearing NO. G-2758(4 & 4-A) land with shed. 6. Xerox copy of letter, duly attested, from the Office of the Assistant Assessor & Collector dated bearing No. G-2758 (6) C.I. Shed. 7. Xerox copy of letter, duly attested, from the Office of Assistant Assessor & Collector dated 28th November, 1997, bearing No. G-2758(7) Auto Workshop wherein inter alia it is mentioned that first date of assessment of structure is prior to 1961-62 in respect of property bearing No. G-2758 (7) land with Auto Workshop. 8. Xerox copy of letter from the Office of Assistant Assessor & Collector dated 28th November, 1997 bearing Ref. No. ACGN/2459 of 1997-98 wherein inter alia inspection extract of the Property Ward No. G-2758(4 & 4A)(6) (7) for the year 96-97. 9. 8. Xerox copy of letter from the Office of Assistant Assessor & Collector dated 28th November, 1997 bearing Ref. No. ACGN/2459 of 1997-98 wherein inter alia inspection extract of the Property Ward No. G-2758(4 & 4A)(6) (7) for the year 96-97. 9. Xerox copy of Licence issued U/Sec. 394, 412-A of M.M.C.Act, 1888 dated 29.1.2003 in the name of Shri Mulji Shah, M/s. Joy Auto Works for motor repairs & servicing for area 370 sq. Mtrs. 10. Duly attested zerox copy of the letter of Assistant Engineer, G-III bearing Ref. No. GIII/4767 of 01.10.1962 giving No objection for starting the repairs to the Motor Vehicle at the subject premises. 11. Duly attested zerox true copy of BMC letter dated 17th May, 1975 bearing Ref. No. Estate/5477/SA giving offer of piece of land admeasuring 500 sq. yards in lieu of the structures on Final Plot No. 878 and adjoining plot. In view of the above, I pass the following order. ORDER The contravening structure of Ms. Prabhavati Mulji Shah & Shri Kiran Mulji Shah is made eligible for commercial permanent alternative accommodation as per the Corporation’s policy. Ms. Prabhavati Mulji Shah & Shri Kiran Mulji Shah are hereby directed to vacate the structure and hand over the same to the Corporation immediately, failing which further demolition action U/s. 90 of M.R.&T.P. Act will be initiated.” (emphasis supplied) 12. After issuance of the above said order, the Assistant Commissioner (Markets) forwarded a communication to the Petitioners dated 23/12/2008 mentioning the possibility of allotting an alternate accommodation to the Petitioners and calling upon the Petitioners to pay the requisite charges therefor. The said communication is also subject matter of challenge in this Writ Petition, which reads thus: “Pursuant to the above subject matter, A.C.G/North Ward has forwarded proposal to grant permanent alternate accommodation toyou in lieu of structure affected due to implementation of Town Planning Scheme No. IV of Mahim Area.F.P.No. 879, T.P.S.IV (Mahim) Dadar. In this context, it is to inform you that Add. M.C.(W.S.) has accorded sanction vide AMC/WS/D5701 of 20.12.2008 to grant alternate accommodation to you on payment of necessary charges. Therefore, area adm. 1998 sq. ft at first floor of the Market on plot bearing C.T.S. No. 660/B/1, 666(pt), 667 (pt), 668(pt), 669(pt) of Village Eksar at Kandarpada, Dahisar (West) will be allotted to you subject to payment of following requisite charges towards alternate accommodation. Therefore, area adm. 1998 sq. ft at first floor of the Market on plot bearing C.T.S. No. 660/B/1, 666(pt), 667 (pt), 668(pt), 669(pt) of Village Eksar at Kandarpada, Dahisar (West) will be allotted to you subject to payment of following requisite charges towards alternate accommodation. However, final demarcation will be given at the time of possession. 1) 25% cost of construction-(calculated on BUA+carpet area + 20%) Rs. 7,19,400/- 2) Standing deposit i.e. Equivalent to 6 months stallage charges Rs. 1,49,850/-Total Rs. 8,69,250/- You shall provide internal brick masonry walls, electric wiring etc. at your own cost if necessary, only after issuance of final Letter of allotment. All above charges shall be paid within 15 days to A.S.M.Z-IV, whose office is situated at 3rd floor, Bhabha Hospital Building, R.K. Patkar Marg, Bandra (West), Mumbai-400 050. The xerox copies of receipts thereto shall be submitted to this office for office record please.” 13. Later on, the Respondent No. 2 issued notice under Section 90 of the MRTP Act to the Petitioners on 26/12/2008, calling upon the Petitioners to demolish/pull down the shed/structure occupied by the Petitioners standing on Final Plot No. 878, 879-TPS-IV (Mahim Area) as it is contravening the final scheme. Even this notice is subject matter of challenge in the present Writ Petition. The said reads thus: “WHEREAS the Government of Maharashtra has been pleased to sanction the Town Planning Scheme under section 51 of the Bombay Town Planning Act, 1954 under their Notification, urban Development and Public Health Department No. TPB/1363/R dated 20th May, 1963 published part I of the Maharashtra Government Gazette Patra Ordinary dated 28th May, 1963 and to fix thereunder the 15th August, 1963 as the days on which the Final Scheme shall come into force and WHEREAS the hut/shed/temporary structure occupied by you and standing on the above Final Plot No. 878,879, TPS-IV, Mahim Division (Original Plot No. 227). AND WHEREAS the said shed/structure occupied by you standing on Final Plot No. 878,879, TPS-IV (Mahim Area) is contravening aforesaid final scheme. In pursuance to the notice U/s 89 of M.R. & T.P. Act 1966 as referred above at Sr. No. 1, was issued to you and thereafter the hearing was given and the hearing order as referred above at Sr. No. 2 was passed, in which your contravening structure is made eligible for permanent commercial accommodation. In pursuance to the notice U/s 89 of M.R. & T.P. Act 1966 as referred above at Sr. No. 1, was issued to you and thereafter the hearing was given and the hearing order as referred above at Sr. No. 2 was passed, in which your contravening structure is made eligible for permanent commercial accommodation. Further, the demand letter to provide permanent alternate accommodation as referred at Sr. No. 3 is issued to you and directed to pay requisite charges within a stipulated period, failing which, I, therefore, hereby call upon you under section 90 read with section 165 of the Maharastra Regional and Town Planning Act, 1966 and the rules made there under, to demolish/pull down the said shed/hut/temporary structure for enforcing the said final scheme. If you fail to demolish/pull down the said structure within 30 (thirty) days on receipt of this notice, your structure will be demolished on expiry of the stipulated time or thereafter without any further intimation to you which you please note.” (emphasis supplied). 14. In the present Writ Petition, Petitioners have raised diverse contentions. The grievance of the Petitioners is that the proposed action of the Corporation is at the instance and behest of Respondent No.3; that no Notice has been issued to the other heirs of Mulji Shah, namely, Mukesh Shah and Jayshree Shah, despite the fact that the action was to affect their right, title and interest in the contravening shed/structure. According to the Petitioners, the impugned notices as also the order passed by the Respondent No. 2 is a clear case of non-application of mind and more so a predetermined approach of the said Respondent to oblige the Respondent No.3. The Petitioners allege that the proposed action is replete with ulterior motives and malafide intention to favour the Respondent No.3. It is the case of the Petitioners that although various other structures are situated on the disputed plot, in the said TPS scheme, however, the Petitioners have been singled out for the proposed action. According to the Petitioners, the impugned notices and order are in excess of authority and/or colourable exercise of authority vested under the provisions of law. It is also suggested that the impugned notice and order is in violation of the order passed by the Apex Court. According to the Petitioners, the impugned notices and order are in excess of authority and/or colourable exercise of authority vested under the provisions of law. It is also suggested that the impugned notice and order is in violation of the order passed by the Apex Court. The Petitioners also assert that the 2nd Respondent had no authority to exercise such drastic powers, which could be done only by Respondent No.1. The Respondent No.1 had not delegated such authority to the Respondent No. 2 or any other officer of the Corporation for which reason the notice was null and void and unenforceable. According to the Petitioners, in any case, recourse to Section 89 of the MRTP Act cannot be taken by the Authority so as to facilitate eviction of the Petitioners on the misplaced and misconceived ground that the contravening structures were put to non-confirming user by the Petitioners. To buttress this submission, reliance is placed on the decision of the Division Bench of our High Court in the case of Chandulal Vasudeo Vaidya & anr. v/s. Nasik Municipal Borough, Nasik & others reported in 1976 MH.L.J. 308. According to Petitioners, the user of structures was for auto garage and service activities. The same was a permissible user. In as much as, the definition of residential purpose in the context of Town Planning Scheme and Development Control Regulations is an inclusive and not exclusive one. It is argued that the auto repairs activity is a permitted user in residential zone for Shop Line and, therefore, cannot be labelled as contravening the Town Planning Scheme. According to Petitioners, there are several other shopkeepers carrying on commercial activities in residential areas falling within TPS-IV including the subject property and the Petitioners were being discriminated at the instance and behest of Respondent No.3. The Petitioners also assert that the Corporation having failed to pursue the earlier notice issued against the predecessor of the Petitioners in respect of the contravening structures and having failed to take the same to its logical end, was precluded from raising the same issues after lapse of over 24 years. The Petitioners also assert that the Corporation having failed to pursue the earlier notice issued against the predecessor of the Petitioners in respect of the contravening structures and having failed to take the same to its logical end, was precluded from raising the same issues after lapse of over 24 years. According to the Petitioners, the Petitioner No. 1 having become absolute owner of the property bearing Final Plot No. 878, the question of taking any action in respect of structures standing thereon at the instance of Respondent No. 3 who has had no concern with the said property smacks of ulterior motive and malafide intention. On these basis, the Petitioners have approached by way of present Writ Petition under Article 226 praying for the following reliefs:- (a) That this Hon’ble Court be pleased to issue a writ of certiorari or any other Writ or order in the nature of Certiorari or similar Writ, calling for the records concerning the subject structure, the subject Notice dated 19th April, 2008 and impugned order dated 6th August 2008 (Exhibit “A” & “B” hereto) and after examining the correctness, validity and proprietary thereof, be pleased to quash and set aside the subject Notice and impugned order. (b) That this Hon’ble Court be pleased to issue a writ of certiorari or any other Writ or Order in the nature of certiorari or similar Writ, calling for the records concerning the subject structure, the subject letter dated 23rd December, 2008 (Exhibit “C” hereto) and Notice dated 26th December, 2008 (Exhibit “D” hereto) and after examining the correctness, validity and proprietary thereof, be pleased to quashed and set aside the subject letter dated 23rd December, 2008 (Exhibit “C” hereto) and Notice dated 26th December, 2008 (Exhibit “D” hereto); (c) this Hon’ble Court be pleased to declare that the subject Notice dated 19th April 2008 and impugned Order dated 6th August 2008 (Exhibit “A” and “B” hereto) are illegal, bad in law, unenforceable, and that the Respondents are not entitled to act upon the same in any manner whatsoever and that the same are liable to be quashed and set aside. (d) this Hon’ble Court be pleased to declare that the subject Notice dated 19th April, 2008 and impugned Order dated 6th August, 2008 (Exhibit “A” and “B” hereto) are illegal, bad in law, unenforceable, and that the Respondents are not entitled to act upon the same in any manner whatsoever and that the same are liable to be quashed and set aside; (e) that this Hon’ble Court be pleased to issue appropriate writ, order and direction prohibiting the Respondents, their servants, agents, officers, subordinates, representatives, successors in office, workers etc. be restrained by permanent Order or injunction from in any manner acting in furtherance of the subject Notice dated 19th April, 2008 and impugned Order dated 6th August, 2008 (Exhibit “A” and “B” hereto) and/or taking any steps in pursuance or furtherance thereof and/or demolishing or damaging the subject structure or in any manner interfering with the Petitioners’ use, occupation, possession and enjoyment of the subject structure in pursuance of the subject Notice and/or the impugned Order or otherwise; (f). that this Hon’ble Court be pleased to issue appropriate writ, order and direction prohibiting the Respondents, their servants, agents, officers, subordinates, representatives, successors in office, workers etc. be restrained by permanent Order or injunction from in any manner acting in furtherance of the subject letter dated 23rd December, 2008 (Exhibit “C” hereto) and Notice dated 26th December, 2008 (Exhibit “D” hereto) and/or taking any steps in pursuance or furtherance thereof and/or demolishing or damaging the subject structure of in any manner interfering with the Petitioners’ use, occupation, possession and enjoyment of the subject structure in pursuance of the subject Notice and/or the impugned Order or otherwise; (g) that pending the hearing and final disposal of the above Petition, the Respondents, their servants, agents, officers, subordinates, representatives, successors in office, workers etc. be restrained by an Order of injunction from in any manner acting in furtherance of the subject Notice dated 19th April, 2008 and impugned Order dated 6th August, 2008 (Exhibit “A” and “B” hereto) and/or taking any steps in pursuance or furtherance thereof and/or demolishing or damaging the subject structure or in any manner interfering with the Petitioners’ use, occupation, possession and enjoyment of the subject structure in pursuance of the subject Notice and/or the impugned Order or otherwise; (h). that pending the hearing and final disposal of the above Petition, the Respondents, their servants, agents, officers, subordinates, representatives, successors in office, workers etc. be restrained by an Order of injunction from in any manner acting in furtherance of the subject letter dated 23rd December, 2008 (Exhibit “C” hereto) and Notice dated 26th December, 2008 (Exhibit “D” hereto) and/or taking any steps in pursuance or furtherance thereof and/or demolishing or damaging the subject structure or in any manner interfering with the Petitioners’ use, occupation, possession and enjoyment of the subject structure in pursuance of the subject Notice and/or the impugned Order or otherwise; (i) for ad-interim reliefs in terms of prayer (d), above, (j) for costs, and (k) for such further and other reliefs as the nature and circumstances of the case may require.” 15. The Respondents 1 & 2 have opposed this Petition. The reply more or less reiterates the stand of the department that the offending structures were used for non-confirming user and the proposed action was necessitated to stop such non-confirming user. The Respondent No.3 has also opposed this Petition and referred to the events which according to them would dis-entitle the Petitioners to pursue the present remedy. According to Respondent No. 3, the present Petition is abuse of process of the Court in as much as the Petitioners and their predecessors by now have resorted to four different Suits and have been unsuccessful in getting any relief. On the other hand, the Corporation was obliged to implement the Town Planning Scheme so as to remove the contravening structure admeasuring 753 sq. feet falling on the plot owned by the Respondent No.3 as the same was not in conformity with the Town Planning Scheme. The Respondent No. 3 have disputed the claim of the Petitioners that they have any right, title or interest in relation to the property being Final Plot No. 879 owned by them. 16. Having considered the rival submissions and after examining the material on record, we shall in the first place examine the purport of Notice dated 19/4/2008 issued by the Respondent No.2. The same has been issued with reference to provisions of Section 89 read with Section 165 of the MRTP Act. 16. Having considered the rival submissions and after examining the material on record, we shall in the first place examine the purport of Notice dated 19/4/2008 issued by the Respondent No.2. The same has been issued with reference to provisions of Section 89 read with Section 165 of the MRTP Act. On perusal of the said Notice which is reproduced in its entirety in earlier part of this order, it is seen that the case made out is that the Petitioners were occupying the land and structure on Original Plot No. 227 and now Final Plot No. 878 and 879 for non-confirming user of motor repair activity and garage in contravention of the Regulations controlling the development of the area of the above final scheme of TPS-IV Mahim area. On this basis, the Petitioners have been called upon to vacate the structure and the land in their occupation failing which they would be summarily evicted therefrom without any further reference to them and in the manner provided by the Act. Since the notice refers to the provisions of Section 89, it may be appropriate to refer to Section 89 of the Act. The same reads thus:- “89. (1) On and after the day on which a final scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure be summarily evicted by the Planning Authority or any of its officers authorised in that behalf by that Authority. (2) If the Planning Authority is opposed or impeded in evicting such person or taking possession of the land from such person, the Commissioner of Police, or as the case may be, the District Magistrate shall at the request of the Planning Authority enforce the eviction of such person or secure delivery of possession of the land to the Planning Authority as may be necessary.” (emphasis supplied). 17. On plain reading of this Section, it is amply clear that the power under Section 89 of the Act can be exercised by the Planning Authority to evict any person summarily who continues to “occupy any land” which he is not entitled to occupy under the final scheme. 17. On plain reading of this Section, it is amply clear that the power under Section 89 of the Act can be exercised by the Planning Authority to evict any person summarily who continues to “occupy any land” which he is not entitled to occupy under the final scheme. That action can proceed only after the appropriate authority were to record a clear opinion after giving opportunity to the concerned person- that he was not entitled to occupy the Final Plot under the Scheme. In the present case, the Respondent No.2 has failed to record any such opinion muchless any tangible reason to justify the action of summary eviction of the Petitioners from Final Plot Nos. 878 as well as 879. Rather, the Respondent No.2 in the impugned order dated 6/8/2008 has jumped to the conclusion that the Petitioners are eligible for commercial alternate accommodation as per the Corporation’s policy and, therefore, have called upon the Petitioners to vacate the structure in question. Indubitably, the question of providing alternative accommodation to the Petitioners would arise only upon a conclusive opinion recorded by the Authority that the Petitioners were “occupying the land” which they were not entitled to occupy under the final scheme. Notably, although the impugned Notice dated 19/4/2008 refers to Section 89 of the Act, however, it is indicative of the fact that the Respondent No.2 proposed to invoke power of summary eviction on the ground of non-confirming user of land which, however, is ascribable to Section 90 of the Act. Section 90 of the Act reads thus:- “90. (1) On and after day on which a final scheme comes into force, the Planning Authority may, after giving the prescribed notice and in accordance with the provisions of the scheme, - (a) remove, pull down or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection of which or carrying out of which, any provision of the scheme has not been complied with; (b) execute any work which it is the duty of any person to execute under the scheme, in any case where it appears to the Planning Authority that delay in the execution of the work would prejudice the efficient operation of the scheme. (2) Any expenses incurred by the Planning Authority under this section may be recovered from the person in default or from the owner of the original plot in the manner provided for the recovery of sums due to the Planning Authority under the provision of this Act. (3) If any action taken b y the Planning Authority is questioned, the matter shall be referred to the State Government or any officer authorised by the State Government in this behalf; and the decision of the State Government or of the officer, as the case may be, shall be final and conclusive and binding on all persons.” (emphasis supplied). 18. There is marked difference between the sweep of Section 89 and Section 90 of the Act. For, Section 89 is in relation to power of the Planning Authority to summarily evict a person in “occupation of land” which he is not entitled to occupy under the final scheme. Whereas, Section 90 deals with the power of the Planning Authority inter alia, to summarily evict a person from the “building” or “other work” in the area included in the scheme which is such as to contravene the scheme. Thus understood, the ground of non-confirming user of the structure in question by the Petitioners would be ascribable to Section 90 and not Section 89 of the Act. Be that as it may, in our opinion, assuming that the Planning authority was satisfied that action under Section 90 was warranted in relation to the contravening structures, that can be resorted to only after recording a clear opinion that the user was a non-confirming user. Before doing so, the authority was duty bound to consider the stand taken by the Petitioners that the user of structures for garage and auto repairs was a permitted user in residential zone with Shop Line and answer the same one way or the other. 19. Be that as it may, even if the user of the structure is found to be a non-confirming user, the authority has a duty to exercise its discretion justly and reasonably. That obligation is reinforced by Section 90, which postulates different options to the authority for enforcing the Town Planning Scheme. 19. Be that as it may, even if the user of the structure is found to be a non-confirming user, the authority has a duty to exercise its discretion justly and reasonably. That obligation is reinforced by Section 90, which postulates different options to the authority for enforcing the Town Planning Scheme. The Authority can either remove, pull down or alter any building or other work in the area included in the Scheme which is such as to contravene the scheme or in the erection of which or carrying out of which any provisions of the Scheme has not been complied with. In other words, if the non-confirming user was to be stopped; and the structure was put to specified user which would no longer contravene the scheme, it may not be necessary to remove or pull down the structure as a whole or in part. Assuming that it were to be a case of non-confirming user of the structure in question, that in any case cannot be the basis to dispossess or evict the Petitioners from the “land” if they have any right, title or interest therein, as owners or lessees as the case may be. These are matters which ought to have been examined by the Respondent No.2 before passing the order dated 6/8/2008. The Respondent No.2-authority would be obliged to keep in mind the legal exposition in the case of Chandulal Vasudeo Vaidya (supra). In that case, the Plaintiff therein who was owner of the property sought a direction against the defendants who were utilizing the property for staking hay even after the finalization and publication of Town Planning Scheme under which the plot was allotted to the Plaintiffs and was shown as a residential area under the Scheme. According to the Plaintiffs, since the plots were being used for non-residential purposes, the user was unauthorised; therefore, the tenants were in unauthorised occupation of the plot in question. In other words, the defendants-tenants were not entitled to occupy the plot in question under the final Scheme. On this premise, the Plaintiffs-owners asked for mandatory injunction against the Municipal Council directing the Council to evict the tenant summarily from the said plots by invoking power under Section 89 of the MRTP Act. In other words, the defendants-tenants were not entitled to occupy the plot in question under the final Scheme. On this premise, the Plaintiffs-owners asked for mandatory injunction against the Municipal Council directing the Council to evict the tenant summarily from the said plots by invoking power under Section 89 of the MRTP Act. The Division Bench of our High Court negatived the said claim of the Plaintiffs and held that the Municipal Council was under no obligation to evict the tenant summarily. The Court went on to observe that at best the tenants could be prosecuted for breach of the provisions of the Scheme for objectionable or unauthorised user of the plot. The legal position expounded is that merely because the user becomes objectionable that would not mean that the occupation also becomes unauthorised, making the person in possession as not entitled to occupy the Final Plot within the meaning of Section 89 of the MRTP Act. Thus, the dispute between the owner and occupier of the Final Plot will have to be resolved between them inter se and the power under Section 89 cannot be used to evict the occupant on the allegation of non-confirming user. 20. We may recall the claim of the Petitioners that the original owner (Jetha Banji) has executed lease deed in favour of the predecessor of the Petitioners in relation to land bearing CS No. 1218 corresponding to new Survey No. 1772, original plot no. 227 admeasuring 1305 sq. yards on 20/10/1962 (subsequent to the Award dated 24/2/1962) and that the Petitioners were in possession of that portion of plot-which is now part of Final Plot no. 879 allotted to Jetha Banji as per the final scheme. Thus, the Petitioners are claiming right on the basis of lease deed dated 20/10/1962 which was executed in favour of the predecessor of the Petitioners by the original owner (Jetha Banji) who was allotted Final Plot No. 879 admeasuring 3640 sq. yards in lieu of land bearing Survey No. 1218, original plot no. 227 admeasuring 4874.05 sq. yards, as per the Award dated 24/2/1962. Their rights in the original plot will have to be preserved and recognized in the reconstituted plots. Indeed, the Petitioners have gone to the extent of claiming ownership therein on account of the adverse possession. yards in lieu of land bearing Survey No. 1218, original plot no. 227 admeasuring 4874.05 sq. yards, as per the Award dated 24/2/1962. Their rights in the original plot will have to be preserved and recognized in the reconstituted plots. Indeed, the Petitioners have gone to the extent of claiming ownership therein on account of the adverse possession. The criticism of the Respondents, is that, the claim of the Petitioners as lessee was not set up at the time of finalization of Town Planning Scheme. No reference is made to such a right of the predecessor of the Petitioners in the final Scheme. Similarly, in so far as Final Plot No. 878 is concerned, the Petitioners are relying on the Conveyance Deed executed in favour of Petitioner No. 1 by the owner (Javale) who has been allotted the said plot as per the final scheme. Significantly, the Respondent No. 3 has no right, title and interest in the said plot. In any case, there will be no question of evicting the Petitioners from the said Final Plot No. 878. At best the non-confirming user can be stopped. These are matters which ought to have been examined by the Respondent No.2 in the first instance. 21. The argument of the Respondents that the Petitioners cannot be heard on such pleas and that the present Petition is abuse of process, it clearly overlooks the observation of the Division Bench of this Court while disposing of Writ Petition No. 2443 of 2006 on 14/2/2008. It is made more than clear that the Corporation will be at liberty to proceed against the Respondent No.6 therein (Petitioners herein) in accordance with law and consider all contentions raised by Respondent No.6 therein. The Court has made it more than clear that Respondent No.6 (Petitioners herein) would be entitled to take up all the pleas before the appropriate authority which were taken at the time of hearing of Writ Petition No. 2443/2006. If such leave was granted by this Court to the Petitioners, it was expected of the Respondent No.2 to address the diverse grounds and contentions raised before him by the Petitioners herein and which are reiterated before us in the present Writ Petition. If such leave was granted by this Court to the Petitioners, it was expected of the Respondent No.2 to address the diverse grounds and contentions raised before him by the Petitioners herein and which are reiterated before us in the present Writ Petition. Notably, the Respondent No. 2 in his order dated 6/8/2006, which is impugned before us, even though has adverted to the broad stand taken by the Petitioners as also the Respondents, has not recorded his opinion one way or the other as to whether the proposed action is warranted and justified within the meaning of Section 89 or for that matter Section 90 of the Act. Besides, there is no indication in the decision of the Respondent No.2 that the Petitioners cannot be allowed to challenge the proposed action due to the adverse decision against them by the Civil Court. If such opinion were to be recorded, we would have considered the efficacy thereof. However, since the decision of Respondent No. 2 is bereft of reasons, we are at a loss to know as to what consideration prevailed on him to pass the operative order. Indeed, depending on the finding to be reached on material issues in the context of the statutory provisions, it would be open to the Planning Authority to pass appropriate direction in accordance with law. If the Planning Authority is inclined to pursue action against the Petitioners on the ground that they were carrying on activity of non-confirming user in the structure/shed which was falling within the residential zone, that situation would be governed by the regime of Section 90 of the Act. The parameters of that action would be different. In that situation, the authority may have to then consider whether alteration of the building so as to make it consistent with the final scheme for residential use can be one of the option instead of removal or pulling down of the whole or part of the structure. Before that, the authority will have to examine as to whether the activity of auto repairs in residential zone with Shop Line is a permissible user. If it is so, by no standard action under Section 90 can be resorted to as it will not be a case of contravention of the final Scheme as such. 22. Before that, the authority will have to examine as to whether the activity of auto repairs in residential zone with Shop Line is a permissible user. If it is so, by no standard action under Section 90 can be resorted to as it will not be a case of contravention of the final Scheme as such. 22. The Respondent No. 2, however, without analysing these matters has jumped to the conclusion that the Petitioners were eligible for permanent commercial alternative accommodation as per the Corporation’s policy and, therefore, called upon them to hand over to vacate the structure and hand over the same to the Corporation immediately failing which demolition under Section 90 of the Act was to be resorted to. The order of the Respondent No.2, therefore, cannot stand the test of judicial scrutiny. Since the subsequent communications which are also subject matter of challenge in the present Petition are founded on the opinion recorded by Respondent No. 2 in the impugned order dated 6/8/2008, as a necessary corollary the Respondents cannot be permitted to act upon the same. In our opinion, the appropriate course is to quash and set aside the Notice dated 26/12/2008 (Exhibit D), dated 23/12/2008 (Exhibit C), as also the order passed by the Respondent No. 2 dated 6/8/2008 (Exhibit B). It will be open to the Respondent No. 2 to re-examine the matter afresh on the basis of Notice dated 19/4/2008 (Exhibit A) or to issue a fresh Notice to the Petitioners and decide the matter after considering all the relevant aspects that would be raised by the Petitioners regarding the justness, fairness and appropriateness of the proposed action. All questions in that behalf are left open to be decided on its merits in accordance with law. 23. Reverting to the argument of the Petitioners that the proposed action suffers from the vice of principles of natural justice for having failed to issue notice to Mukesh Shah and Jayshree Shah despite the fact that the proposed action would affect their right, title and interest in the suit structure, the same will have to be examined in the context of provisions of Section 136 of the Act. Sub-section (1) mandates that all documents including notices and orders required to be served upon any person be deemed to be duly served in the manner provided thereunder. Sub-section (1) mandates that all documents including notices and orders required to be served upon any person be deemed to be duly served in the manner provided thereunder. Sub-clauses (a) and (b) of sub-section (1) will have no application to the case on hand. Sub-clause (c) thereof provides for the mode of service in any other case. Sub-section (2) stipulates that service of any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed as “owner” or “occupier” as the case may be of that land or building naming or describing that land or building without further name or description and the same shall be deemed to be duly served subject to complying the other requirements of the said provision. However, in the present case, the notice has been issued by name only to the Petitioners and not to the other co-owners/co-occupiers. Since we are relegating the Petitioners to the stage of issuance of notice dated 19/4/2008 Exhibit A, it may be open to the Respondent No.2 to consider issuance of fresh notice in compliance with the requirements of Section 136, if so advised. However, if the Respondent No. 2 is satisfied that the notice already sent to the Petitioners is sufficient compliance, may proceed on that basis and take the impugned notice Exhibit A dated 19/4/2008 to its logical end after examining the stand of the parties on its own merits in accordance with law keeping in mind the observations made by us hitherto. 24. Accordingly, the Petition partly succeeds. The impugned order dated 6/8/2006 (Exhibit B) passed by the Respondent No.2 as well as letter dated 23/12/2008 (Exhibit C) and notice dated 26/12/2008 (Exhibit D) are quashed and set aside with liberty to the Respondent No. 2 to continue with the action in respect of the suit structure on Final Plot No. 878 and 879 of TPS-IV Mahim area in accordance with law keeping in mind the observations made hitherto. 25. Petition succeeds on the above terms with no order as to costs.