Holding

The Supreme Court held that ad‑interim protection granting motorable access over the respondent’s Plot No.879 to the appellants is warranted until the suit is disposed of or the 40‑foot DP road is constructed.

Summary

The appellants, owners of Plot No.878 and a portion of Plot No.879 in Mumbai, relied on a motorable access through Plot No.879 to reach their land, as no other road existed. After the respondent acquired the remaining part of Plot No.879, it obstructed this access, prompting the appellants to seek a perpetual injunction and an interim order for motorable passage. The High Court refused the interim relief, leading to an appeal before the Supreme Court. The Court examined whether the appellants possessed a prescriptive or easement right of passage under the Indian Easement Act and considered the impact of the pending 40‑foot Development Plan (DP) road envisaged in Town Planning Scheme‑IV. Finding that the appellants were land‑locked and that denying motorable access would cause irreparable loss, the Court held that ad‑interim protection was warranted until the suit is decided or the DP road is constructed. Consequently, the Supreme Court allowed the appeal and granted the appellants motorable access on an interim basis.

Issues considered

Whether the appellants are entitled to an interim motorable right of passage over the respondent's land pending the final determination of the suit.
Whether a prescriptive easement or easement of necessity can be claimed under Sections 13, 19 and 41 of the Indian Easement Act, 1882.
Whether the pending construction of the 40‑foot Development Plan road affects the appellants' entitlement to interim access.
Whether the High Court erred in refusing the interim injunction.
Whether the commercial use of the land, contrary to the residential zoning under Town Planning Scheme‑IV, impacts the right of passage.

Legislation cited

Easement Act, 1882s. 13, s. 19, s. 41
Maharashtra Regional and Town Planning Act, 1966s. 89, s. 90

Subjects

easementright of passageinterim injunctionmotorable accesslandlocked propertytown planning schemeDP roadcommercial vs residential usebalance of convenience

Judgment

[2009] 5 S.C.R. 497

M/S. JOY AUTO WORKS & ORS A
...
v.
SUMER BUILDERS (P} LTD. & ANR.
(Civil Appeal No. 2131 of 2009)
. ,I
APRIL 2, 2009
B
[ALTAMAS KABIR AND DR. MUKUNDAKAM
SHARMA, JJ.]

Easement - Right of passage - Appeal against refusal
of High Court to grant interim prayer to have motorab/e c
access - Held: Ad-interim protection, as prayed for by
appellants, should be given in facts and Circumstances of the
case - Interim order.
t Appellants were in occupation/possession of plot D
No.878 and a portion of plot No.879, which was
contiguous to plot no.878. In absence of an actual road
adjacent to plot No.878, the appellants had motorable
access to plot no.878 through plot no.879. However, after
respondent no.1 acquired interest in the remaining
E
portion of plot no.879 it allegedly began to obstruct the
use of such motorable access by the appellants.
Consequently, the appellants had filed a suit for
injunction against the respondents.
" .(

The High Court, by the impugned judgment, rejected F
the interim prayer made by the appellants for relief of
motorable access during pendency of the suit.

Allowing the appeal, the Court

HELD:1. Having regard to the site plan, some G
provision has to be made even at the .interim stage to
preserve a motorable access from the main road to the
premises under the occupation of the appellants so that
upon development of plot No.879 such a right is not
497 H
498 SUPREME COURT REPORTS [2009] 5 S.C.R.

A totally extinguished. A mo.torable access should be
preserved at least till the 40 feet wide DP road adjacent ,
to plot No.878 is available to the appellants for egress
and ingress from their portion of the premises, which is
otherwise land-locked, till the disposal of the suit. [Para
~

•.
8 26] [508-B-D]
2. The present case is not one where the appellants
may be suitably compensated by damages in case their
suit succeeds. In the facts and circumstances of the
case, ad-interim protection as prayed for by the
c appellants, should be given. The appellants will be entitled
to a motorable access from the main road to Plot No.878
through Plot No.879 and the portion of Plot No.879 in their
possession either till the disposal of the suit or till the
construction of the 40 feet wide D.P. Road running
D adjacent to Final Plot No.878 by the Bombay Municipal •
Corporation in terms of the assurance given by it.
However, once the said 40 feet wide D.P. Road is
constructed by the Bombay Municipal Corporation, giving
clear motorable access to Plot No.878, the Respondent
-·
r-
.:: No.1 should no longer be deprived of the full enjoyment
of its property and will be entitled to move the Trial Court
to get the right of way through Plot No.879 granted by this
order revoked and this order will not stand in the way of
such an order being passed by the Trial Court, if it is
F satisfied that sufficient motorable access is available to >
the appellants on account of construction of the 40 feet
wide D.P. Road. [Paras 27, 28 and 29] [508-F-H; 509-A-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2131 of 2009.
--.
G
From the Judgment & Order dated 12.12.2007 of the High
Court of Judicature at Bombay in Appeal from Order No.432
of 2006.

H
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 499
LTD. &ANR.

C.A. Sundram, Kavin Gulati, Ruby Singh Ahuja, Manu A
;>
Aggarwal, Abeer Kumar and Maulik Karanjawala, for the
Appellants.

Dushyant Dave, Shekhar Naphade, Narayan Y. Bharati,
"\ >
Pradeep, Rajinder Mathur, Atul Y. Chitale, Shweta Maumdar
B
and Suchitra Atul Chitale for the Respondents.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J.1. Leave granted.
2. One Khatau Bhanji (hereinafter referred to as 'Bhanji')
c
was said to be the owner of Original Plot No.227 measuring
4874.95 sq. yards within the city of Mumbai. The Arbitrator
appointed under the Maharashtra Regional and Town Planning
t Act, 1966 (hereinafter referred to as the '1966 Act') passed an
Award on 24.2.1962 in respect of the said plot and Original Plot D
No.231 owned by cine Javle. In terms of the Award, Javle lost
all his rights to Original Plot No.231 while Original Plot No. 227
was divided into plot No. 878 (1000 sq. yards), plot No.879
(3647 sq. yds.) and plot No. 877. By virtue of the said Award,
Bhanji was given Final Plot No. 879 measuring 3647 square E
yards in lieu of Original Plot No.227, while Javle was given plot
No.878 measuring 1000 square yards in lieu of Original Plot
No.231, and Plot No.877 was earmarked for the construction
of a 40 feet Development Plan Road (hereinafter referred to
as 'DP Road'). F
3. The appellants herein claimed that they had been
. granted lease of 1305 sq. yards. out of plot No.879 on
20.10: 1962 by Bhanji, which was contiguous to plot No.878,
wh.ic~.was also under the occupation of the appellants. The
appellant No.1 claims to have been running an automobile G
., garage and carrying on other connected aCtivities on the said
properties since 1979 and in connection with the business it
had two·motorable accesses to plot No.878 through the portion
of plot No.879 demised in favour of the appellant by Bhanji, for
H
500 SUPREME COURT REPORTS [2009] 5 S.C.R.

A egress and ingress to and from the public road. According to
the appellants there was no other motorable access either to .
"
plot No.878 or the portion of the plot No.879 under the
occupation of the appellants.
4. According to the appellants in an attempt to have them <-
,.
B evicted from plot No.878 Javle complained to the Bombay "
Municipal Corporation that the said plot was being used by the
appellants for commercial purposes although in the
Development Plan the same had been earmarked for
residential purposes. On such complaint notices were issued
c for removal of the structures i:i which such commercial activities
were being carried out. Ultimately, however; plot No.878 was
purchased by the appellants from Javle and no further steps
were taken by the Bombay Municipal Corporation pursuant to
the said notices.
D 5. In the meantime, the respondent No.1 acquired Bhanji's
interest in the remaining portion of plot No.879 and began
obstructing the use of the motorable access from the public
road to plot Nos.879 and 878. Accordingly, on 11.6.2005 the
appellants wrote to the respondent No.1 informing it of their right
E in Final Plot No.878 and the portion of Final Plot No.879 under
their occupation together with the two access roads. Since
despite the said letter the respondent No.1 brought two iron
gates and building-material to block the entrance to plot
Nos.878 and 879 from the public road, the appellant No.2 and
F the original plaintiff-Mulji Shah were compelled to file LC. Suit
No.5570 of 2005 in the City Civil Court at Bombay for perpetual
injunction and by Notice of Motion prayed for an injunction to
restrain the respondent from obstructing or interfering with the
use, occupation and possession of plot No.878 and plot No.879
G to the extent of 1305 sq. yards together with the structures
thereupon with motorable access to and from the public road
through plot No.879. The appellants prayed for an injunction to
restrain the respondents from constructing or placing any gates
upon plot No.879, pending the hearing and final disposal of the
H suit and also to restrain the defendant No.2, the Bombay
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 501
LTD. & ANR. [ALTAMAS KABIR, J.]
Municipal Corporation, from approving any plans for A
construction of a boundary wall or gates on plot No.879, which
would obstruct the free and full use of the two accesses by the
appellants from the public road.
~\ 6. Considering the facts indicated hereinabove the Trial
)
Court initially granted an ad-interfm injunction against the B
respondent No.1 on 23.12.2005. Upon notices being served
the respondents contested the claim and respondent No.1
contended that he had acquired the ownership of Final Plot No.
879 measuring 3043.50 sq. yards by a Deed of Conveyance
executed in his favour on 20.12.2004. c
7. When the Notice of Motion was taken up for hearing the
Respondent No.1 contended that in terms of the Town Planning
Scheme-IV (TPS-IV) there is a 40 feet wide D.P. Road
abutting plot No.878 through which the appellants have a right
t D
of passage. According to the respondents the appellants have
a right of pass;:ige from plot No.878 only from the D.P. Road
,.,.. and at no point of time had they enjoyed any right of passage
through the property of the respondent No.1, nor have they
established any prescriptive right or an easementary right of
necessity so as to attract the provisions of Sections 13, 19 and E
41 of the Indian Easement Act, 1882.
8. After hearing the parties on the Notice of Motion the Trial
Court rejected the claim of the appellants regarding the two
... access points through plot No.879 but allowed the appellants
F
""" to use one of the two access passages, referred to as Access
No.2, to reach their plot from the public road. Such access was,
however, denied for the use of vehicles.
9. While passing the aforesaid order, the Trial Court took
note of the fact that Mr. Javle, the vendor of Appellant No.2 had G
by Writ Petition No.1667 of 1984 sought a direction upon the
Bombay Municipal Corporation to remove the hutments on the
land abutting Final Plot No. 878 which had been set aside for
a 40 feet wide D.P. Road and to construct the said road
expeditiously. The said writ petition was withdrawn on 7.8.1984 H
502 SUPREME COURT REPORTS (2009) 5 S.C.R.

A purportedly in view of the statement made by the Bombay
Municipal Corporation that action would immediately be taken
under the 1966 Act and that the demolition of encroachments,
which was preventing the construction of the road, would be
carried out in accordance with law. A Notice issued by the
B Bombay Municipal Corporation on 8.8.1984 to that effect, was
challenged by one Arun Sales, a licensee of the Appellant No.1,
who filed L.C. Suit No. 5822 of 1984 against the Bombay
Municipal Corporation challenging the said notice. Ultimately,
the Notice of Motion taken out in the suit was dismissed and
c the suit itself came to be disposed of in view of a settlement
between the appellants and some members of the Javle family
whereby the appellant No.2 acquired Final Plot No.878 from
the Javle family.
10. In the appeal preferred by the appellants herein the
D appeal Court accepted the position that the Original Plot
No.227 had been divided into Final Plot No.879 measuring
3043.50 sq. yards and Final Plot No.878 which belong to
appellant No.2 in respect whereof there is no dispute. However,
the appeal Court also came to a finding that there was no
E material on record to show that the appellants had ever
exercised any right of access through Final Plot No.879
belonging to the respondent No.1 and when the appellant No.2
purchased Final Plot No.878 under TPS-IV it was clearly
understood that in order to approach the said plot she would
F have a right of passage through the proposed 40 feet wide
D.P. Road provided under the Scheme. As a result, the
appellant No.2 could claim a right of passage to and from plot
No. 878 against the Bombay Municipal Corporation only through
the proposed D.P. Road. Furthermore, the Appellant No.1
G being the husband of the Appellant No.2 and since the structure
or Final Plot No.879 was contiguous to Final Plot No.878, he
could also claim right of passage from the said D.P. Road. The
appeal Court held that merely because the Bombay Municipal
Corporation had failed to discharge its duties in providing a
H road and passage to the appellants the appellants could not
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 503
LTD. & ANR. [ALTAMAS KABIR, J.]
claim such a right through property belonging to others and A
('I thereby create obstructions in their use of the property. The
appeal Court, accordingly chose not to interfere with the limited
relief granted by the trial Court and dismissed the appeal.

_,.', 11. It is the said order of the Appeal Court dated
~
12.12.2007 which is the subject matter of challenge in the B
., )
present appeal.
12. Appearing in support of the appeal Mr. C.A.
Sundaram, learned Senior Counsel emphasized the fact that
in the absence of any other access to Final plot No.878 or the
portion of plot No. 879 the only means of access for over 35
c
years had been through plot No.879 which formed part of the
Original Plot No.227 which was sub-divided into plot Nos.878,
879 and 877. Mr. Sundaram also submitted that the 40 feet
~
wide D.P. Road, indicated in the Development Plan underTPS-
IV, was only in contemplation when the Award was passed by D
the Arbitrator under the 1966 Act and on account of the various
encroachments and obstructions the said road has never been
constructed. This, in fact, had prompted Javle to file a Writ
Petition for a direction upon the Bombay Municipal Corporation
.• to remove the said encroachments and constructions and to E
take up the construction of the road immediately. Mr. Sundaram
submitted that in the absence of any actual road adjacent to
~
plot No.878, the owner thereof had access to her land only
through plot No.879. Mr. Sundaram contended.that only after
/ .J
..,,. the respondent No.1 had acquired the ownership of plot No.879 F
in 2004 that such right was attempted to be disturbed by the
Respondent No.1 by threatening to put up a boundary wall and
an iron gate to prevent the use of such passage which was
/
being used for more than 35 years.
13. Mr. Sundaram submitted that though the Special Leave G
Petition had been filed against an interim order it had become
~
necessary to do so since the only means of egress and ingress
to and from plot No.878 and the portion of plot No.879 under
the possession of appellant No.1 would be completely
H
504 SUPREME COURT REPORTS [2009] 5 S.C.R.

A obstructed, if the respondents were not restrained from
obstructing the motorable access to the said plots which the
appellants had been enjoying for over 35 years. Mr. Sundaram
urged that the Courts below had wrongly relied on only a
proposal for the construction of a 40 feet wide D.P. Road
.:-
B adjacent to plot No. 878 in passing a limited interim order '
without ascertaining whether such road had actually been
constructed and was in existence. Mr. Sundaram also
submitted that both the Courts below had lost sight of the fact
that plot No.878 and the portion of plot No.879 under the
occupation of the appellants was completely land-locked since
c the construction of the 40 feet wide D.P. Road next to plot
No.878 was still in the realm of planning and had not yet been
executed. In other words, the appellants had no access to their
portion of the plots under their occupation except through plot
No. 879. ~
D
14. Mr. Sundaram's submissions were strongly opposed
by Mr. Dushyant Dave, learned Senior Counsel appearing for
respondent No.1. He strenuously urged that the appellants
never had any right of passage through plot No.879 and their
E access to plot No.878 and the portion of plot No.879 under their
occupation was from the 40 feet wide D.P. Road which was
adjacent to plot No.878. Mr. Dave also urged at the outset that
the Special Leave Petition was not maintainable since it was
directed against the orders passed in an interlocutory
application in which concurrent findings of fact had been arrived
F at. " "('

15. Mr. Dave then contended that, in any event, since plot
No. 878 and the portion of plot No.879 under the occupation
of the appellants had been earmarked in the Master Plan for '
G residential purposes under no circumstances could the
appellants be permitted under the provisions of the 1966 Act
to continue with commercial activities thereupon. j.

16. Mr. Dave also contended that it is for the very same
reason that a complaint had been made by Javle and notices
H had been issued thereupon by the Bombay Municipal
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 505
LTD. & ANR. [ALTAMAS KABIR, J.]

Corporation to the appellants to remove the structures which A

-- were being used for such commercial purposes.
17. From the site plan which had been made Exh. 'A' in
the suit, Mr. Dave pointed out that the claim of the appellants
to a right of motorable access through plot No.879 renders the
• said plot unfitfor any use by the respondent No.1 and that in
the earlier suits the appellants have never asserted such right.
B

18. Mr. Dave submitted that while disposing of the Notice
of Motion dated 11.9.1975, the learned Trial Court noticed the
fact that after obtaining an ad-interim order of injunction, the c
appellants had tried to convert the temporary structures on the·
plots in question into a permanent ones. Mr. Dave also
submitted that while dismissing the Notice of Motion, the High
Court also took into consideration the Town Planning Scheme
No.IV, Mahim, which came into force on 15th August, 1963,
1 D
whereunder the Final Plot allotted to Bhanji and Javle could not
be used for commercial purposes and that accordingly the
appellants were not entitled to an order of injunction which would
have the effect of altering the said Scheme and the use of the
1 plots earmarked for particular purposes.
E
19. On behalf of the Bombay Municipal Corporation it was
' submitted by Mr. Shekhar Naphade, learned Senior Counsel,
that in the Development Scheme conceived by the Planning
Authority different plots had been earmarked for different
purposes. Mr. Naphade urged that under the TPS-IV Scheme
F
certain Final Plots which had been identified for industrial
purposes could be used for such purposes only. Similarly,
except the plots which had been allotted for 'public purposes'
the remaining plots could be used for residential purposes and
Final Plot Nos. 878 and 879 fell within th~ ambit of paragraph
G
1(n) of TPS-IV and could be used for residential purposes only.
•j Mr. Naphade submitted that the appellants had been offered
~
an alternative plot of land measuring 500 sq. yards at Powell
Land Industrial Estate, Kondivili, Bombay, but such offer had
been turned down by the appellants.
H
506 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 20. Ultimately, on the complaint made by Javle, the
appellants were issued notices under Sections 89 and 90 of
the 1966 Act to remove the structures from the plots in question
and also for the eviction of the appellants therefrom.
-
•
21. Mr. Naphade submitted that upon service of the said
B notices, the appellants filed Suit No.6544 of 1975 in the City
~
Civil Court at Bombay, inter alia, for a declaration that the Final
Scheme viz. TPS-IV was not binding on the appellants and that
the said notices under Sections 89 and 90 of the said Act were
illegal and void and had no effect in law. In the said suit, the
c appellants took out a Notice of Motion for an ad-interim order
of injunction to restrain the Bombay Municipal Corporation from
demolishing the structures which had been put up in Final Plot
No.878 and a part of Final Plot No.879. Ultimately, as indicated
hereinabove, the Notice of Motion was dismissed and the
D appeal taken against the said order was withdrawn by Mulji
Shah on 1st August, 1977. Subsequently, on 29th September,
1977, Mulji Shah filed another suit in the City Civil Court in
Bombay, being Suit No.7540of1977, in which an ex-parte ad-
interim order was passed restraining the Bombay Municipal
,,
E Corporation from removing him from the Final Plot No.878 and
a part of Final Plot No.879 and from removing the structures
thereupon in any manner. The said Notice of Motion came up
for hearing in 1979 and was dismissed for default and the ad-
interim injunction was vacated.
F 22. Mr. Naphade also submitted that thereafter Dr. K.V.
Javle filed Writ Petition No.1667 of 1984 and prayed for a
Mandamus upon the Bombay Municipal Corporation and its
officers to carry out their statutory obligations under the 1966
Act and the rules framed thereunder and in particular to give
G effect to the TPS-IV, Mahim, by directing the said authorities
to remove all the structures, temporary or otherwise, from Final
Plot No.878 and to direct the authorities of the Bombay
Municipal Corporation to hand over and deliver vacant
possession of the said plot measuring 1000 sq. yards and for
H a further direction on the said respondents to construct the DP
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 507
LTD. & ANR. [ALTAMAS KABIR, J.)
road adjoining Final Plot No.878. Mr. Naphade pointed out that A
on the assurance given on behalf of the Bombay Municipal
Corporation and its authorities that notice for demolition would
be issued under Sections 89 and 90 of the 1966 Act and
served within two weeks and demolition will be carried out as
)
prescribed in law, the writ petition was allowed to be withdrawn B
by order dated 7th August, 1984.
23. Mr. Naphade submitted that in 1984 a fresh notice was
given to the appellants for removal of the structures on the plots
in question. Thereafter, as mentioned hereinabove, Arun Sales,
a licensee of the Appellant No.1, filed LC. Suit No.5822 of c
1984 against the Bombay Municipal Corporation challenging
the notice dated 8th August, 1984, and obtained interim orders
which were subsequently vacated.
24. Mr. Naphade contended that the structures raised by
7 the appellants were not in conformity with the Town Planning D
Scheme though ·in the suit filed by the appellants an attempt
has been made to make out a case that since the 40 feet wide
DP Road had not yet been constructed by the Corporation, it
should not permit any new construction on Final Plot No.879
so as to block the only access available over the said plot to E
Plot No.878. Mr. Naphade submitted that such a case was
against the provisions of the Town Planning Scheme and taking
advantage of an order of injunction, the appellants could not be
allowed to continue to use plot No.878 and the portion of plot
1 No.879 in their occupation for commercial purposes. 'F
25. Mr. Naphade submitted that the learned Trial Judge
had, while denying motorable access through plot No.879,
allowed access otherwise to the appellants from the main road
to the premises under their occupation.
G
26. Since the appellants have come up against the refusal
of the High Court to grant their interim prayer to have motorable
... access to plot No.878 and a portion of plot No.879 under their
possession from the main road through plot No,879 during the
pendency of the suit, we can only consider the case of the H

-.
508 SUPREME COURT REPORTS [2009] 5 S.C.R.

A parties on a prima facie basis, inasmuch as, the suit is yet to
be decided on merits. The case being argued on behalf of the
appellants, may not ultimately be dependent upon whether the
appellants run any commercial venture on plot No.878 and the
portion of plot No.879 under their possession, but the question
B of such a right of passage may ultimately be relevant if it is
established that there is no other access to the said premises.
Accordingly, having regard to Exh.A in the suit, which is a site
plan which has been referred to as Exh.C in the paper book at
page 120, some provision has to be made even at the interim
c stage to preserve a motorable access from the main road to
the premises under the occupation of the appellants so that
upon development of plot No.879 such a right is not totally
extinguished. While the Trial Court has allowed access on foot
from the main road to the said premises, in our view, a
motorable access should be preserved at least till the 40 feet
D
wide DP road adjacent to plot No.878 is available to the ' -
appellants for egress and ingress from their portion of the
premises, which is otherwise land-locked, on till the disposal
of the suit.
E 27. It would not be appropriate on our part to make any
observation on the merits of the case of the parties since the
same is yet to be decided. We are only required to ensure the
balance of convenience and inconvenience and the equities
between the parties at this stage. We are also required to
F consider if any of the parties will suffer irreparable loss and
injury unless an interim order, as prayed for by the appellants, "
is allowed or denied. This is not one of those cases where the
appellants may be suitably compensated by damages in case
their suit succeeds.
G 28. Having considered the submissions advanced on
behalf of the respective parties, including that of the Bombay
Municipal Corporation, we are of the view that ad-interim
protection, as prayed for by the appellants, should be given in
the facts and circumstances of the case.
H 29. We, therefore, direct that the appellants/ plaintiffs will
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 509
LTD. & ANR. [ALTAMAS KABIR, J.]

be entitled to a motorable access from the main road to Plot A
No.878 lhrough Plot No.879 and the portion of Plot No.879 in
their possession either till the disposal of the suit or till the
construction of the 40 feet wide D.P. Road running adjacent to
Final Plot No.878 by the Bombay Municipal Corporation in
terms of the assurance given by it on 7th August, 1984, in Writ B
Petition No.1667 of 1984 and also in terms of the directions
given in Writ Petition No.2443 of 2006 filed by the Respondent
No.1 before the Bombay High Court, whichever is earlier.
However, once the said 40 feet wide D.P. Road is constructed
by the Bombay Municipal Corporation, giving clear motorable c
access to Plot No.878, the Respondent No.1 should no longer
be deprived of the full enjoyment of its property and will be
entitled to move the Trial Court to get the right of way through
Plot No.879 granted by this order revoked and this order will
not stand in the way of such an order being passed by the Trial 0
Court, if it is satisfied that sufficient motorable access is
available to the appellants on account of construction of the 40
feet wide D.P. Road. We also make it clear that the right of
motorable access to Plot No.878 through Plot No.879 granted
by this order to the appellants will not preclude the Bombay E
Municipal Corporation from taking any action as it may be
entitled to under the 1966 Act or other relevant enactments in
relation to the Town Planning Scheme No.IV, Mahim.
Furthermore, subject to any order to the contrary that may have
been passed in any other proceeding, the Bombay Municipal
Corporation must implement the assurance given by it on 7th F
August, 1984, when the Writ Petition No.1667 of 1984 was
permitted to be withdrawn, regarding construction of the 40 feet
wide D.P. Road adjacent to Final Plot No.878, with utmost
expedition.
G
30. We, therefore, allow the appeal to the extent indicated
hereinabove.
31. There will be no order as to costs.
B.B.B. Appeal allowed
H