Amy Phirozshah Mistry And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 299 Bom

ORDER

1. This petition arises from the judgment and order dated 31st October, 1988, passed by the Principal Judge, City Civil Court, Bombay, in Misc. Appeal No. 109 of 1984 filed under Section 105F of the Mumbai Municipal Corporation Act, 1883 (for short, "the BMC Act"), by which the petitioners' appeal has been dismissed. The order of eviction under Section 105B of the BMC Act was impugned in the said appeal. The property involved is plot No. 48 of Carnage Lines Estate, admeasuring 327.54 sq. yards, bearing C.S. No. 1835 of Fort Division, Mumbai (for short, "the said plot"). Though the petitioners have made diverse prayers in the writ petition, the prayer (a) alone was pressed concerning the order of eviction passed by respondent No. 5 under Section 105B of the B.M.C. Act. According to the petitioners, the said plot has remained and continued in their possession and it did not ever vest in the Municipal Corporation of Greater Bombay (for short, "the Corporation") as contemplated under Section - 129 of the Maharashtra Regional & Town Planning Act, 1966 (for short "Act of 1966") and, therefore, order under Section 105B is bad in law.

2. The order dated 13th June, 1984 was passed in exercise of the powers conferred under Section 105B of the B.M.C. Act by the Inquiry Officer of the Corporation in the enquiry proceedings bearing Nos. 19/2 of 1983 and A/2 of 1983. By this order, the petitioners were held to be in unauthorised occupation of the said plot and were called upon to vacate the same within one month from the date of service of the order, since it was required by the Corporation for development of public garden. The Misc. Appeal of the petitioners came to be dismissed by the impugned judgment and order dated 31st October, 1988.

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

4. On 3rd January, '1967, final plans under the Town Planning Scheme came to be approved and the said plot was numbered as plot No. 48. According to the final development plans approved by the State Government, the said plot was reserved for a recreation ground. The Government notified the said plot along with another adjoining plot bearing No. 1487, for the Corporation for a recreation ground under the Notification No. TPB-4366/77977 dated 3rd January, 1967 Issued under Section 126(2) and (4) of the Act of 1966. The said notification came into force-with effect from 4th February, 1967.

5. In view of the aforesaid Notification, the Dy. Municipal Commissioner (Engineering) of the Corporation, by his letter dated 21st December, 1978, requested the Government to acquire land bearing C. S. Nos. 1487 and 1835 for recreation ground, by invoking provisions of the Act of 1966. Though the said plot was belonging to the Government and was in possession of the petitioners in pursuance to the agreement dated 28th March, 1964, the entry appearing in the Property Register Cards was in the name of Sottish Church Authorities. In the result, the initial notices in respect of the said plot were issued to the said Scottish Church Authorities. It is the case of the petitioners that as far as C. S. No. 1835 is concerned, the said Scottish Church Authorities did not and do not have any concern whatsoever with the said plot, much less the ownership. The petitioners, therefore, challenged the entry in the Property Register Cards and it appears that during the pendency of the present petition, the S.I.R., by his orders dated 28th October, 1989 and 19th August, 1993, has amended the said Property Register Cards in respect of the said plot and the petitioners are now shown as the lessees and respondent No. 1 as the lessor and the name of the Scottish Church authority has been deleted. This has been-brought on record by way of Chamber Summons No. 74 of 1988 for amendment to the writ petition. We need not consider the controversy, if any, between the Scottish authorities and the petitioners in respect of the rights and title of the said plot, since that is not the subject-matter of the present petition. Moreover, while passing the Award dated 8th November, 1983, a reference has been made to this Court under Section 30 of the Land Acquisition Act for determination of the issue about the persons to whom the compensation should be paid. Similarly, an issue was also raised before the appellate authority as to whether the property of the Central Government or the State Government could be a subject-matter of acquisition under the Land Acquisition Act. The application of the Central Government to join them as a party to the proceedings also came to be rejected by the impugned order and in view thereof the Central Government has challenged the impugned order by filing Writ Petition No. 179 of 1990 in this Court. We do not wish to consider this aspect since the petitioners in the present petition did not press the said ground.

6. On 21st July, 1980, respondent Nos. 2 and 4 claim to have taken possession of the said plot under Section 129(2) of the Act of 1966. Under Section 129 of the Act of 1966, the Government on an application of the planning authority is empowered to take possession of any land for public purpose, if required urgently. It is the case of the petitioners that neither the State Government nor the Corporation gave any notice of the acquisition proceedings in respect of the said plot. The petitioner, therefore, recorded protest by their letter dated 8th August, 1980. Thereafter, they claim to have addressed a letter dated 18th October, 1980 to respondent No. 2, requesting him to desist from taking action in respect of the acquisition of the said plot and making payment to the Scottish Church Authorities until the title to the said plot was established. It is thereafter, on 22nd January, 1982, a notice dated 21st January, 1992 under Section 9(3)(4) of the Land Acquisition Act was issued by respondent No. 2 to petitioner No. 1 inviting objections and claim in respect of compensation for and measurement of the said plot. On receipt of the aforesaid notice, the petitioners appeared and filed their claim without prejudice to their rights and contentions in the matter.

7, The petitioners contend that in respect of the structure admeasuring 12" x 8", the Corporation, by their notice dated 22nd March, 1982 issued under Section 351 initiated action against the petitioners. The notice was replied by the petitioners and in view of their reply, they claim, that the said notice came to be abandoned and/or given up. The petitioners further contend that thereafter on 14th July, 1982 the show cause notice under Section 105B of the BMC Act was issued. This notice was replied to by the petitioners by their letter dated 15th July, 1982. On 8th November, 1983, respondent No. 2 passed the Award. The petitioners did participate in the said proceedings. The Corporation, thereafter, once again on 27th October, 1983, issued the identical show cause notices under Section 105B of the BMC Act. The said notices were replied to by the petitioners by their letter dated 15th November, 1983. It is the case of the petitioners that, thereafter, the order dated 13th June, 1984 passed by respondent No. 5 under Section 105B of the BMC Act, requiring them to vacate the said plot within one month from the date of the order was served on them. Hence the petitioners preferred Misc. Appeal No. 109 of 1984, before the learned Principal Judge, City Civil Court as an Appellate Authority under Section 105F of the BMC Act. The learned Principal Judge of the City Civil Court, after considering the material placed before him and the arguments advanced by the parties, has held that the order dated 13th June, 1984 cannot be said to be violative of principles of natural justice nor was there any denial of opportunities to the petitioners to present their case before the Inquiry Officer of the Corporation. On considering the evidence placed on record, it is held that the possession of the said plot was taken by the acquiring body and the said plot did vest in the Corporation and in view thereof the order passed under Section 105B is perfectly legal.

8. Upset by the impugned Judgment and order passed by the Principal Judge, City Civil Court at Bombay, the petitioners have filed the present petition.

9. The main thrust of the argument advanced by Mr. Doctor, the learned counsel for the petitioners, was that the actual possession of the said plot was never taken and the petitioners' possession continued till this date. In other words, the title of the said plot has never been vested in the Corporation since the physical possession of the said plot has never been disturbed either by respondent No. 2 or by the Corporation and in view thereof, the order under Section 105B is without Jurisdiction and nullity. It is further submitted that respondent No. 2 and the Corporation proceeded on the basis of the possession receipt signed by St. Andrew St. Columbia Church, i.e. Scottish Church Authorities as owners of the said plot who were never in possession thereof. In support thereof, our attention was invited to the observations made in the Award that when the site inspection was carried out, it was found that the Scottish Church authorities were not in physical possession of the Said plot. Mr. Doctor further submitted that the impugned order is violative of the fundamental rights of the petitioners since it has deprived the petitioners' of their valuable property and in view thereof the entire proceedings are violative of Article 19(1)(g) of the Constitution of India. In support of the aforesaid contention, the learned counsel for the petitioners placed reliance on the decisions of the Supreme Court in the case of Balwant Narayan Bhagde v. M. D. Bhagwat . He further submitted that the learned Principal Judge of the City Civil Court while disposing of the appeal of the petitioners did not give cogent reasons, particularly while dealing with the submission of the petitioners with regard to their possession of the said plot. In support thereof, he placed reliance on the three decisions of the Apex Court, viz. In the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K, S. Gandhi ; S. N. Mukherjee v. Union of India and M. J. Sivani v. State of Karnataka .

10. Per contra, Mr. Makhija, learned counsel for respondent Nos. 4 and 5, invited our attention to the letters of the petitioners dated 8th August, 1980 and 18th October, 1980 and the reply of the petitioners dated 15th November, 1983 to the show cause notice under Section 105B and contended that the petitioners had knowledge of taking possession of the said plot by the Corporation, through the petitioners were not present. He submitted that the owner or occupant of the property who has participated in the acquisition proceedings and claimed compensation for it, cannot claim that the property remained and continued in their possession and is riot vested in the Government or the Corporation. Mr. Makhija in support of his submission placed reliance on a decision of the Delhi High Court in the case of M/s. Paramount Foods Corporation v. Delhi Development Authority . Mr. Makhija further submitted that in view of the admitted position that the petitioners neither challenged the reservation of the said plot for public purpose under the provisions of the Act of 1966, nor the Award under the provisions of the Land Acquisition Act, it is not open for them to challenge the order passed by the Inquiry Officer of the Corporation under Sectlpn 105B of the B.M.C. Act.

11. Mr. Page, learned' counsel for respondent No. 1, viz. Union of India, in all fairness submitted that the Union of India is now interested only in compensation under the Award, being the owner of the said plot. He did not press other grounds which were raised in Misc. Appeal No. 109 of 1984. Insofar as respondent No. 2 is concerned, learned Assistant Government Pleader submitted that the petitioners have no locusstandi to challenge either the Award or the action of the Corporation under Section 150B of the said Act since the petitioners are not the owners of the said plot.

12. On perusal of the Impugned judgment and order and consideration, of arguments advanced by the learned counsel for the parties, in our opinion, the following issues raised in this petition need to be answered Firstly, whether in the present case, the possession of the said plot was even taken by respondent No. 2 and handed over to the Corporation and in view thereof the said plot could be called "corporation premises" or whether the said plot was taken in possession by the Corporation and petitioners' possession now is unauthorised as contemplated under Section 105B of the BMC Act. In other words, whether the petitioners were justified in claiming that they have never been dispossessed and the said plot did not ever vest in the Corporation and as a result thereof the notice under Section 105B is without jurisdiction. In short, whether the petitioners can be called persons in unauthorised occupation of the corporation premises. Secondly it will have to be seen whether the learned Principal Judge of the City Civil Court has considered the aforesaid aspects of the matter in proper prospective and recorded cogent reasons while dismissing the petitioners' appeal by the impugned Judgment.

13. Before we consider the grounds of challenge in the instant writ petition, it would be advantageous to refer to the relevant provisions of the B.M.C. Act as well as the Act of 1966. Section 105B of the BMC Act empowers the Corporation to evict person from Corporation premises as and when the premises are required by the Corporation in public interest and if any person is in authorised occupation of the Corporation premises. The relevant Section 105B(1)(b) and (c) reads thus :

"105B. Power to evict person from Corporation premises.

(1) Where the Commissioner is satisfied--

(a) x x x

(b) that any person is in unauthorised occupation of any corporation premises;

(c) that any corporation premises in the occupation of any person are required by the corporation in the public interest,

the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice served by post, or by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be provided for by regulations, order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice."

The "corporation premises" is defined under Section 105A(b) which reads thus :

"(b) corporation premises" means any premises belonging to or vesting in, or taken on lease by the Corporation. Section 105F provides Appeals from every order of the Commissioner made in respect of any corporation premises under Section 105B before an appellate officer who, in the present petition, was Principal Judge of the City Civil Court, Bombay. Under Section 105G, an order made by the Commissioner or the appellate officer under Section 105F cannot be called in question in any original suit, application or execution proceeding. In view thereof, the petitioners filed the present writ petition challenging the impugned order passed in the appeal filed under Section 105F of the BMC Act. Section 126 of the Act of 1966 provides acquisition of land required for public purposes specified in plans. Admittedly, in the present writ petition, the planning authority, viz. the Corporation, made an application to the State Government for acquiring the said plot for public garden for which it was reserved along with another plot of land and pursuant thereof respondent No. 2 initiated action of acquisition under the provisions of the Land Acquisition Act, 1894. Section 126 provides that after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under the Act of 1966 at any time the Planning Authority may acquire the land by making an application to the State Government under the Land Acquisition Act, 1894. At this stage, we would like to place it on record that there was an amendment to Section 126 of the Act of 1966 in March, 1991. However, the present writ petition is governed by old Section 126 of the Act of 1966. Section 126(1) and (2) before amendment of 1991 reads thus :

"126. (1) When after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time, the Planning Authority, Development Authority, or as the case may be any Appropriate Authority may, except as otherwise provided in Section 113A acquire the land either by agreement or make an application to the State Government for acquiring such land under the Land Acquisition Act, 1894.

(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under Section 49 and except as provided in Section 49 and except as provided in Section 113A itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition Act, 1894, in respect of the said land. The declaration so published shall, not withstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section :

Provided that, no such declaration shall be made after the expiry of three years from the date of publication of the draft Regional plan, Development plan or any other plan."

Section 129 provides possession of land in case of urgency. Sub-sections (1) and (2) of Section 129 of the Act of 1966 are relevant for our purpose. They read thus :

"129. Possession of land in cases of urgency-- (1) At any time after the publication of a notification under Sub-section (2) of Section 126, where the State Government, on an application of the Planning Authority, Development Authority or Appropriate Authority, is satisfied that possession of any land which is reserved or designed for a public purpose either under a Regional plan or Development plan urgently required in the public interest by the Authority, the State Government may by an order in writing authorise the Collector to enter on and take possession of the land under acquisition after giving a notice of fifteen days; and thereupon, the right of interest in that land shall be extinguished from the date specified in the order; and on the date on which possession is taken; the land shall vest without any further assurance and free from encumbrances in the State Government:

Provided that, before or at the time of taking possession of any land under this subsection, the Collector shall offer to the person interested compensation for the standing crops and trees, if, any on such land; and for any damage sustained by him which is caused by such sudden dispossession and not expected in Section 24 of the Land Acquisition Act, 1894, (I of 1894), and if such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed in awarding compensation for the land under the provisions of the said Act.

(2) Where possession of land is taken under Sub-section (1), the Planning Authority, the Development Authority or as the case may be, Appropriate Authority, shall, subject to the provisions of Sub-section (1), pay to the owner concerned interest at 4 per cent, per annum on the amount of compensation from the date of taking possession of the land under acquisition to the date of payment."

14. It is not disputed that the provisions of Section 129 were invoked by respondent No. 2 for taking possession of the said plot. Mr. Doctor, learned counsel for the petitioner however submitted that the petitioners never had a notice under Sub-section (1) of Section 129 of the Act of 1966 and, therefore, it cannot be said that respondent No. 2 or Corporation took possession of the said plot. He further submitted that the possession of the petitioners remained intact till this date and in view thereof it cannot be said that the petitioners are in unauthorised occupation of the "corporation premises". Whether the said plot could be called "corporation premises" within the meaning of Clause (b) of Section 105A, needs consideration. The proposition canvassed by Mr. Doctor, learned counsel for the petitioners, that the Corporation has no power to issue notice under Section 105B, if it is not "corporation premises", has not been disputed by the learned counsel appearing for the respondents. However, Mr. Makhija, learned counsel for the Corporation vehemently submitted that in the present case under any circumstances it cannot be said that the possession of the premises was not taken by respondent No. 2 and handed over to the Corporation. He further submitted that the said plot is "corporation premises" within the meaning of the definition of "corporation premises" and in view thereof, the possession of the petitioners as of today is unauthorised and therefore the order under Section 105B is perfectly legal and valid.

15. Our attention was invited to Clause 14 of the Award. The relevant portion of Clause 14 reads thus :

"14. Possession and payment of interest:

Possession of the land under acquisition admeasuring 4229.59 sq. mts. has been taken over by the representative of the S.L.A.O. (1), B.M.C., Bombay and B.S.D. as per Government U.D. & P.H.D. Memorandum No. TPE 4378/4128 U.D.S. dated 16-5-1980 on 21-7-80 and handed over to the Acquiring Body, i.e. B.M.C. on the same day:"

Further, our attention was also invited to one of the sub-paras of para 3 of the Award which reads thus :

"At the time of site inspection it was observed by me that Scottish Church Authorities were not physically in possession of C.S. No. 1835 when possession was taken."

16. Placing reliance on the aforesaid observations made in the Award, it was urged that the only basis for claiming possession was the possession receipt dated 21st July, 1980. The petitioner claim that they were neither given any notice nor were present when the possession was taken by respondent No. 2 and handed it over to the Corporation. No doubt, it is apparent from the possession receipt dated 21st July, 1980 that the possession of the said plot was handed over by the trustee of St. Andrew St. Columbia Church, i.e. Scottish Church Authorities. It is clear from the possession receipt that the petitioners were not present when the possession receipt was executed on 21st July, 1980. It is further clear from the observations in the Award that at the time of site inspection, the Scottish Church Authorities were not in physical possession of the said plot. Thus, it appears that the possession was handed over by the Trustees of Scottish Church Authorities without holding actual possession of the said plot. In view of this, we would now proceed to consider, whether it could be said that the possession of the said plot was taken by respondent No. 2 from the petitioners who were in established possession thereof.

17. Before we consider the effect of taking possession of the said plot by the Corporation from Scottish Church Authorities, who were not in possession, we would like to test the argument of the learned counsel for the petitioners that the petitioners were not given notice of taking possession nor was their possession even disturbed and the act of taking possession was not within their knowledge. The Notification under Section 126(2) and (4) of the Act of 1966 read with Section 6 of the Land Acquisition Act was issued on 18th January, 1979. According to the Corporation, they received possession of the said plot on 21st July, 1980 from respondent No. 2 who took possession on the same day from the trustee of the Scottish Church Authorities. The petitioners, by their letter dated 8th August, 1980 addressed to the Executive Engineer, Development Branch of the Corporation, informed that they came to know from their Chowkidar at the site that the said plot had been requisitioned by the Corporation and when they made enquiries in connection therewith in the office of the Corporation, they learnt that the property has already been acquired. It is further specifically mentioned in the said letter that this was all done without notice to the petitioners and, therefore, they lodged protest and stated that any action taken by the Corporation is illegal and the Corporation would be held responsible for "unlawful possession". It is, therefore, apparent from the letter dated 8th August, 1980 that within 15 days from the date of possession, the petitioners lodged protest with the Corporation. It is also apparent from the said letter that the petitioners were aware about the acquisition as well as taking possession of the said plot which is referred to in the letter as "unlawful possession". By another letter dated 18th October, 1980 addressed to respondent No. 2, the petitioners informed respondent No. 2 not to take any action in regard to acquisition of the said plot and payment to Scottish Church Authorities until the title of the property is established by making reference to the lease executed in their favour by the Central Government. Thereafter, it appears that since October, 1980 till January, 1982, the petitioners kept quiet till they received notice dated 21st January, 1992 under Section 9(3) and (4) of the Land Acquisition Act. It is not disputed that the petitioners, thereafter, participated in the enquiry under Section 11 of the Land Acquisition Act. The Award clearly indicates participation of the petitioners in the determination of compensation in respect of the said, plot. In fact, reference under Section 30 of the Land Acquisition Act in respect of deciding of the issue about persons to whom compensation to be paid itself proves participation of petitioners in the award proceedings. The Award was accordingly passed on 8th November, 1983. It is thereafter respondent No. 2 issued independent show cause notices to petitioner Nos. 1 and 2 under Section 105B of the BMC Act, calling upon them to vacate the said plot. It appears that similar notices were issued on 13th June, 1984 to the petitioners. However, since the petitioners had replied the first set of notices under Section 105B by their reply dated 15th November, 1983, they did not send independent reply to the similar notices sent on 13th June, 1984. It is very curious to note that though the petitioners have made several grievances in their reply, in effect they have claimed ownership of the said plot and compensation thereof under the provisions of the Land Acquisition Act. The relevant paragraph of the reply reads thus :

"I have also been instructed by my clients to bring to your notice, which I hereby do, that under Section 18 of the Land Acquisition Act, 1894 my clients are making an application to the Collector, i.e. the Special Land Acquisition Officer (1) B.M.C. Bombay and B.S.D. In this case, requesting him to refer the matter to High Court for determination of compensation payable in this case as according to my clients the compensation forced is not adequate and for determining the issue as to whom it should be paid."

It is true that the petitioners have reiterated in the reply that since 1941 till the date of notice, they were in open and continuance possession of the said plot. Thus, it is clear from the sequence of events that the petitioners were aware of the acquisition proceedings, as also of taking possession of the said plot by the Corporation which, according to the petitioners, was an act of "unlawful possession."

18. Therefore, we would like to examine, whether the act of taking possession on 21st July, 1980 by the Corporation and continuance of the petitioners in possession thereafter would amount to their "lawful possession" or "unauthorised possession", in other words, whether while effectuating the taking of possession, presence of the owner of the occupant of the said land is necessary. At the outset, in our view, when the owner I or the occupant of the property participates in acquisition proceedings and claims compensation for it, it is not strictly necessary as a matter of legal requirement or that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time. No doubt that vesting of land in the Government or in the planning authority, either under the provisions of Section 16 and 17 of the Land Acquisition Act or under Section 129 of the Act of 1966, takes place only on taking of actual possession of the land or plot of land. However, the presence of owners or occupant of land is not necessary to effectuate the taking of possession. In our view, the use and occupation of the plot by the occupant or owner thereafter', at the most, may be treated as unauthorised and will be sufficient to say that land/plot vested in the acquiring body. We have no manner of doubt that use/possession of the said plot by the petitioners after 21st July, 1980 is unauthorised. The learned counsel for the petitioners placed heavy reliance on the decision of the Apex Court in the case of Balwant Narayan Bhagde (supra) and submitted that taking of actual possession of the land is necessary for vesting. He further submitted that taking of possession under the provisions of the Land Acquisition Act cannot be symbolical or possession merely on paper. Taking of actual possession on the spot is contemplated under the provisions of the Land Acquisition Act or the Act of 1966 for that matter. He placed heavy reliance on paras 26 and 28 of the report which read thus at page 1776-1777 ;

"26. In a proceeding under the Act for acquisition of land all Interests are wiped out. Actual possession of the land becomes necessary for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the plot. In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government."

"28. When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarlly and generally there would be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interest in the land has to be made, be it the interest of the owner of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession ? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government."

In our view, ratio laid down in the aforesaid paragraphs would not help the petitioners for the simple reason that in the present case, as observed in the earlier paragraphs, possession was taken by respondent No. 2 and by the Corporation on 21st July, 1980 Itself and possession of the petitioners, thereafter would not affect the vesting of the said plot in the Corporation under the provisions of Section 129 of the Act of 1966. As a matter of fact, the decision of the Supreme Court in the case of Balwant Narayan Bhagde (supra) itself makes it clear that it is not strictly necessary as a matter of legal requirement that the notice should be given to the owner or the occupant of the land that possession would be taken at a particular time. Though it may be desirable to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession without occupant or the owner ever coming to know of it. The majority view expressed in paras 1 and 2 of the report cannot be ignored while reading paras 26 and 28, in the report. The relevant portions from paras 1 and 2 of the report reads thus at page 1769 :

"1. .............. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter or legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.

2. ................ "the land was not actually taken possession of by the Principal, Agricultural College". This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting."

This view of the Apex Court has been expressed by the Delhi High Court in the case of M/s. Paramount Food Corporation (supra) relied upon by the Corporation. We are not of the considered view that though the notice was not given to the petitioners that the possession would be taken on 21st July, 1980 and though the petitioners were not present when the possession was actually taken by the Corporation that would not affect the rights occurred to the Corporation. In other words, the land stand vested in the Corporation within the meaning of Section 129 of the Act of 1966 on 21st July, 1980 and the possession of the petitioner was and is unauthorised. In view thereof, it cannot be said that the Inquiry Officer of the Corporation had no jurisdiction to pass the order dated 13th June, 1984 under Section 105B of the BMC Act and that there was no vesting of the said plot in the B.M.C. Further the B.M.C. cannot be said to have deprived the petitioners of their valuable property and the entire proceedings are violative of Article 19(1)(g) of the Constitution of India.

19. Coming to the next submission of Mr. Doctor, learned counsel for the petitioners that the learned Principal Judge of the City Civil Court, while exercising the powers under Section 105F ought to have recorded cogent reasons while dealing with the petitioners' contention that they were in lawful possession of the said plot on the date of the order under Section 105B, or that they were not in unauthorised possession of corporation premises, deserves to be rejected outright. At the outset, we do not agree with the submission of Mr. Doctor, that the learned Principal Judge of the City Civil Court has not recorded reasons in the impugned order. On perusal of the order and consideration of the matter in the context of the facts and circumstances of the case emerging from the record, we are of the view that the learned Principal Judge has given cogent and sound reasons while disposing of the appeal filed by the petitioners under Section 105F. As a matter of fact, the issues which were considered by the learned Principal Judge, City Civil Court, Bombay are recorded in para 13 of the impugned judgment. Thereafter, the learned Judge has considered arguments advanced by the learned counsel appearing for the parties and the material placed before it and has answered the first issue in affirmative holding that the land did vest in the Corporation. As far as the second issue is concerned as to whether the land in question belongs to Central Government and, if so, whether the Corporation can acquire the same until the question of ownership is settled has also been answered by the learned Principal Judge of the City Civil Court with reasons. The learned counsel for the petitioners has placed reliance on the three judgments of the Apex Court in the cases of SectionM. Bukarji (supra). Maharashtra State Board of S and HS Education (supra), and M.J. Shivaji (supra). The Apex Court has expressed that it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure. In our opinion, these decisions would not in any way help the petitioner. Further, in our Judgment when the Award has become final, all this is urged at this stage is technical and would only delay setting up of public garden which is an absolute necessity in this city of Mumbai. Therefore, it will not be proper to interfere in this petition under Article 226. In the circumstances, there is no merit in the second ground of objection raised by the petitioners.

In the result, the writ petition has no merit and is dismissed.

Rule discharged- No costs.

Authenticated copy of this order may be made available to the parties.