Bombay High Court
Bharat Maganbhai Kheta And 5 ... vs Nagpur Improvement Trust And 5 ... on 16 June, 2016
Bench: B.P. Dharmadhikari
mca232.97 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
MISC. CIVIL APPLICATION NO. 232 OF 1997
IN
WRIT PETITION NO. 476 OF 1983
1. Bharat s/o Maganbhai Kheta,
aged about 35 years, occupation
- Business, r/o Dhantoli, Nagpur.
2. Prakash s/o Maganbhai Kheta,
aged about 30 years, occupation
Business, r/o Dhantoli, Nagpur.
3.
Pramod s/o Morarjee Kheta,
aged about 35 years, occupation
Business, r/o Fulchur Road,
Gondia, District - Bhandara.
4. Naresh s/o Morarjee Kheta,
aged about 28 years, occupation
Business, r/o Fulchur Road,
Gondia, District - Bhandara.
5. Anil s/o Trimbaklal Kheta,
aged about 26 years, occupation
Business, r/o Jabalpur (M.P.).
6. Sanjay s/o Vasanjee Kheta,
aged about 24 years, occupation
Business, r/o Jabalpur (M.P.). ... APPLICANTS/
PETITIONERS.
Versus
1. Nagpur Improvement Trust,
Nagpur through its Chief
Executive Officer, Nagpur.
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2. Special Land Acquisition Officer
(Nagpur Imrovement Trust),
Trust Building, Nagpur.
3. The Competent Authority
appointed under the Urban Land
(Ceiling and Regulations) Act, 1976,
notified for "Nagpur Urban
Agglomeration", Collectorate
Complex, Civil Lines, Nagpur.
4. Shri Laxmikant s/o Ramchandra
Chakkarwar, aged about 43 years,
occupation - Business.
5. Shri Ashok s/o Ramchandra
Chakkarwar, aged about 40 years,
occupation - Business.
Both residents of V-102, Narendra
Nagar, Nagpur, Tahsil & District -
Nagpur.
6. Shri Ganesh s/o Ramchandra
Chakkarwar, aged about 54 years,
occupation - Business, r/o V-102,
Narendra Nagar, Nagpur, Tahsil
& District - Nagpur.
7. Shri Vijay s/o Gowardhandas
Agrawal, aged about 58 years,
occupation - Business, r/o Krishna
Apartments, Dhantoli, Nagpur,
Tahsil & District - Nagpur.
8. Shri Shankarrao s/o Jairamji
Diote, aged about 63 years,
occupation - Business, r/o c/o
Rachana Construction Co. Ltd.,
153/B, Shivaji Nagar, Tahsil &
District - Nagpur, acting through
his duly constituted Attorney
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Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
9. Smt. Godavaridevi w/o Goverdhandas
Agrawal, aged about 74 years,
occupation - Housewife, r/o Krishna
Apartment, Dhantoli, Nagpur,
Tahsil & District - Nagpur.
10. Mrs. Pushpalata w/o Ganesh
Chakkarwar, aged 39 years,
occupation - Business, r/o V-102,
Narendra Nagar, Nagpur,
Tahsil & District - Nagpur.
11. Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
12. Smt. Sheela w/o Shankarrao Diote,
aged about 60 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur acting through his duly
constituted Attorney
Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
13. Smt. Nilima w/o Shridhar Diote,
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aged about 37 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur acting through his duly
constituted Attorney
Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
14. Mrs. Arti w/o Indrapal Hora,
aged about 36 years, occupation
Business, r/o c/o Byramji Road,
Nagpur, Tahsil & District - Nagpur
acting through his duly constituted
Attorney Shri Yashpal s/o
Vidyabhushan Seth, aged about
64 years, occupation - Business,
r/o Byramji Road, Nagpur,
Tahsil & District - Nagpur.
15. Mrs. Reena Seth w/o Shri Mannu Seth,
aged about 34 years, occupation
Housewife, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur
acting through his duly constituted
Attorney Shri Mannu Seth s/o Late
Shri Ajit Seth, aged about 37 years,
occupation - Business, r/o Byramji
Road, Nagpur, Tahsil & District -
Nagpur.
16. Shri Amit Seth s/o Late Shri Ajit Seth,
aged about 30 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur.
17. Shri Yashpal Seth s/o Late Shri
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Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur, Tahsil &
District - Nagpur.
18. Mrs. Priti Goel w/o Shri Sumeet
Goel, aged 28 years, occupation
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through his duly constituted
Attorney Shri Yashpal Seth s/o
Shri Vidyabhushan Seth, aged about
60 years, occupation - Business, r/o
34, Byramji Road, Nagpur, Tahsil &
District - Nagpur.
19.
Shri Mannu Seth s/o Late Shri Ajit
Seth, aged about 37 years,
occupation - Business, r/o 34,
Byramji Road, Nagpur, Tahsil
& District - Nagpur.
20. Shri Raju s/o Laxmikant Itkelwar,
aged about 32 years, occupation
Business, r/o Old Mangalwari,
Nagpur, Tahsil & District - Nagpur
being the partner of M/s. Chintamani
Developers, a registered partnership
firm having its office at NKY Tower,
Ajni Square, Wardha Road, Nagpur,
Tahsil & District - Nagpur.
21. Mrs. Parveen w/o Yashpal Seth,
aged 57 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
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Tahsil & District - Nagpur.
22. Mrs. Ritpa w/o Ajit Seth,
aged 63 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
23. Mrs. Deepika w/o Nikhil Khera,
(Nee Ms. Deepika Yashpal Seth),
aged about 28 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 64
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
24. Mrs. Deepti Seth w/o Amit Seth,
aged 25 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Amit Seth s/o Late
Shri Ajit Seth, aged about 30
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
25. Shri Yashpal Seth (H.U.F.)
through Karta Shri Yashpal w/o
Vidyabhushan Seth, aged 64 years,
occupation - Business, r/o 34,
Byramji Road, Nagpur, Tahsil &
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District - Nagpur.
26. Ujwal Jyoti Co-operative Housing
Society Ltd., Nagpur, a registered
Society duly registered under the
Maharashtra Co-operative Societies
Act, 1960 (XXIV of 1961) bearing
Registration No.NGP/CTY/HSG/TC/
399/89-90, having its office at 253
Laxmi Nagar, Nagpur, through its
Hon'ble President Mrs. Anuradha
Jayant Joshi, aged about 60 years,
occupation - Housewife, r/o T-10,
Rathsaptami Apartment, Flat No. 4,
Laxminagar, Nagpur.
27.
Ujwal Co-operative Housing Society
Ltd., Nagpur, bearing Registration No.
NGP/HSG/249, having its office at
Gurukunj, 30, Ramkrishna Nagar,
Khamla Road, Nagpur, acting through
its Secretary Shri Pradip Martandrao
Mandlekar, aged about 58 years,
occupation - Retired Private Service,
r/o C-207, Bajrang Complex,
Siraspeth, Umred Road, Nagpur. ... RESPONDENTS
Shri Anand Parchure, Advocate for the applicants/ petitioners.
Shri S.K. Mishra, Senior Advocate with Shri Dengode, Advocate for
respondent Nos. 1 & 2.
Shri N.R. Patil, AGP for respondent No. 3.
Shri D.V. Siras, Advocate for respondent Nos. 4 to 25.
Shri D.V. Chauhan, Advocate for respondent Nos. 26 & 27.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JUNE 16, 2016.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The matter was heard in open Court on 15.06.2016 and
16.06.2016 and after due deliberations, we rejected the Misc. Civil
Application, mentioning that the reasons shall follow. These
reasons have been recorded accordingly.
2. The review applicants - the original petitioners,
addressed arguments orally and also wanted this Court to peruse
written notes of arguments. We made it clear that if no written
notes of arguments were filed by the other side, the matter would
be decided in the light of oral arguments advanced. Only to the
extent of points argued orally, we have perused the applicants'
notes of arguments.
3. Writ Petition No. 476 of 1983 was filed by the review
applicants seeking quashing of Sakkardara Street Scheme floated
by Respondent Nos. 1 & 2 - Nagpur Improvement Trust. It is not
in dispute that Notification under Section 39 of Nagpur
Improvement Trust Act, 1936, (equivalent to Section 4 of the Land
Acquisition Act, 1894), was published on 02.02.1964 and Section
45 notification (equivalent to Section 6 of Land Acquisition Act,
1894) was published on 03.09.1967. By judgment dated
28.10.1991 delivered in a bunch of matters, other writ petitions
were allowed, Writ Petition No. 476 of 1983 came to be dismissed.
Shri Parchure, learned counsel for the applicants/ petitioners
explained that it was on account of the applicants/ petitioners
resorting to remedy under Section 18 of the Land Acquisition Act,
1894 for enhancement of compensation.
4. Challenging this judgment dated 28.10.1991, the
applicants approached the Hon'ble Apex Court in Special Leave
Petition (C) No. 8266 of 1992. The SLP was decided on
11.03.1996. The Hon'ble Apex Court noted that High Court passed
its judgment as an earlier writ petition was dismissed with liberty
to file fresh. The reason for withdrawal of that writ petition was,
attachment of the compensation by the income-tax authorities and
since then the land holders had not taken any steps, till the
possession was taken from them on 23.07.1981. Before the
learned Apex Court, the review applicants disputed (1) the
statement regarding the reason for withdrawal; and (2) fact that
the possession was taken. The Hon'ble Apex Court observed that if
the High Court proceeded upon allegedly wrong assumption of
facts, the review applicants ought to have taken appropriate action
in the High Court itself. The SLP was, therefore, dismissed.
5.
After this dismissal on 11.03.1996, present application
for review was filed in April 1996. This review application was
withdrawn on 17.05.2002 as the matter was settled between the
parties out of Court. Thereafter CA(O) No. 90 of 2011 was filed
for condoning delay and for recalling that order with a request to
restore MCA No. 232 of 1997. On 26.09.2012, this Court
condoned the delay in filing said CA(O) and ordered restoration of
MCA. Thereafter review petition has been placed for hearing.
6. Shri Parchure, learned counsel for the applicants/
petitioners, in this background submits that when entire
Sakkardara Street Scheme prepared by respondent Nos. 1 & 2 was
quashed and set aside by this Court, implementation of its very
small portion on lands of the petitioners could not have been
allowed and hence the dismissal of Writ Petition No. 476 of 1983 is
unwarranted. He has relied upon the judgment of the Hon'ble
Apex Court in the case of Greater Noida Industrial Development
Authority vs. Devendra Kumar & Ors., reported at (2011) 12 SCC
375, paragraphs 48 & 49; State of M.P. & Ors. vs. Vishnu Prasad
Sharma & Ors., reported at AIR 1996 SC 1593 (1), paragraphs 13
& 21 and Delhi Development Authority vs. Sudan Singh & Ors.,
reported at (1997) 5 SCC 430, paragraphs 1 & 2, to substantiate
his contention. He adds that same relief as given to others could
not have been declined also needed to be extended to the review
applicants. He further adds that Respondent Nos. 1 & 2 have taken
possession of only part of land and constructed upon it, the
remaining land is still vacant and available. The said vacant part
can be restored to the applicants/ petitioners. As possession was
never taken in accordance with law, the land owners have not been
paid compensation and they also did not hand over possession. The
land never vested with the respondents. By inviting attention to
possession receipt dated 19.03.1981, he contends that it is signed
only by the authorities and owners have not placed signature upon
it. The receipt is, therefore, not binding upon them. The electricity
bills placed on record are also pressed into service to show that
even in the year 2010, the property was in their possession. The
inspection report obtained from an Architect on 17.08.1992 is
relied upon to urge that there also possession of the applicants' can
be seen.
7. Our attention is drawn to reply filed on behalf of the
Nagpur Improvement Trust to show that it claims that possession
was taken on 23.07.1981. It is submitted that on record of this
review petition, three death certificates are produced which show
that owners were not alive on 23.07.1981 and as such, no notice
could have been served upon them. The possession allegedly taken
is, therefore, without authority of law and bad.
8. Inviting attention to orders dated 08.12.1982 in Writ
Petition No. 2461 of 1982, the learned counsel submits that this
Court had granted interim orders in relation to 62 plots and on
22.03.1983, stay was granted in petitioners' matter which
continued to operate till 28.10.1991. Hence, the subsequent third
party interests created by Respondent Nos. 1 & 2 are contrary to
High Court orders and intervenors before this Court do not get any
legal right and status.
9.
Inviting attention to the judgment delivered by this
Court on 28.10.1991, Shri Parchure, learned counsel submits that
discussion therein in paragraphs 33 to 37 is mostly on the point of
estoppel and only on that ground, petition came to be dismissed
while allowing other petitions. He is relying on the judgment of
the Hon'ble Apex Court in the case of Vyalikaval Housing Building
Co-operative Society by its Secretary vs. V. Chandrappa & Ors.,
reported at (2007) 9 SCC 304, to urge that in such matters delay
and acquiescence are held to be not relevant. The judgment of
Delhi High Court in the case of M/s. Moghul Travels and Transport
Co. (P) Ltd. vs. Union of India & Ors., reported at AIR 1990 Delhi
56, is pressed into service to urge that when basic notifications are
quashed, benefit thereof shall be enure favour of all. The judgment
of the Hon'ble Apex Court in the case of Ramchand vs. Union of
India, reported at (1994) 1 SCC 44, is relied upon by him to urge
that this Court can mold the relief to be given to the applicants in
such circumstances but their petitions could not have been totally
dismissed. Notifications are entirely quashed & the same can not be
used to their prejudice.
10. Shri S.K. Mishra, learned Senior Advocate on behalf of
respondent Nos. 1 & 2 submits that review can be asked for only in
limited circumstances. The arguments advanced do not make out
any case for invoking that jurisdiction. Not only this, new
documents have been filed for the first time on record of review
petition without seeking leave and without pointing out why those
documents could not be filed earlier. The Hon'ble Apex Court has,
while dismissing the SLP on 11.03.1996, employed the word "if"
and thus, there is no "finding" as such by the Hon'ble Apex Court.
The review filed, simply on the strength of that order is
misconceived and untenable. As review applicants cannot reach
notifications either under Section 39 or Section 45 of Nagpur
Improvement Trust Act, their attempt to have it quashed cannot
succeed. He has taken us through the judgment delivered in the
matter and explained why writ petition filed by the review
applicants was required to be dismissed. He submits that all seven
petitioners then before the Division Bench did surrender their lands
for public purpose of developing Ring road and as such, that ring
road has been constructed. Part of land of the applicants was
allotted to the Provident Fund department where its Regional
Office has come up. He denies that only possession of part of the
applicants' land was taken by Respondent Nos. 1 & 2.
11. To demonstrate that review can be undertaken only if
there is an apparent error, he draws support from the judgment of
the Hon'ble Apex Court in the case of N. Anantha Reddy vs. Anshu
Kathuria & Ors., reported at (2013) 15 SCC 534; and M/s.
Northern India Caterers (India) Ltd., vs. Lt. Governor of Delhi,
reported at AIR 1980 SC 674. He further submits that the
impugned judgment of Division Bench of this Court does not refer
to only Section 18 proceedings but there are other reasons
recorded by it. The High Court has accepted that award was
stayed on 10.02.1975 and it did not doubt that the possession was
taken on 23.07.1981.
12. Shri Mishra, learned Senior Advocate highlights the fact
that the applicants do not complain of any Contempt of Court or
point out violation of any Court order by the Nagpur Improvement
Trust. He submits that in any case, land acquired in accordance
with law, cannot be given back to owners and it needs to be
disposed of as per NIT's Land Disposal Rules, 1983. He relies upon
the judgment of the Hon'ble Apex Court in the case of State of
Kerala & Ors. vs. M. Bhaskaran Pillai & Anr., reported at AIR 1997
SC 2703.
13. According to him, conduct of review applicants/
petitioners in present facts is sufficient to deny them any relief.
After delivery of judgment on 28.10.1991, SLP was disposed of on
11.03.1996 and the review came to be filed on 08.04.1996. This
review application was withdrawn on 17.05.2002 because the
petitioners then had applied for regularization of lay out which had
come up on their lands under the Gunthewari Development
(Regulation, Upgradation and Control) Act, 2001. The application
was submitted in the year 2002. This request for regularization
came to be rejected on 27.12.2010 and after getting knowledge
that regularization on acquired land cannot be allowed, on
14.12.2010, the present proceedings were sought to be restored.
Had the prayer for regularization been granted & layout legalized,
the present review would not have been filed. Thus, according to
the learned Senior Advocate, the process of law is being abused.
14. The review applicant entered into an agreement for
sale of this land on 15.09.1994 with Ujwal Cooperative Society.
On 04.04.1994, they executed Power of Attorney in favour of one
Milind Mahajan. On 16.06.1995, they entered into similar
agreement again. These agreements for sale were/ are
unregistered. To facilitate Gunthewari Regulations, on
30.07.2002, they also executed a Deed of Confirmation. Because
there was an order of status quo in review petition and hence
Gunthewari Regulations could not have been considered, the
review applicants withdrew their proceedings for review on
17.05.2002.
15. The learned Senior Advocate submits that the review
applicants have executed sale deeds through their Power of
Attorney in favour of Cooperative Society and Cooperative Society
then has allotted those plots and executed sale deeds in favour of
individuals/members after 01.01.2001. He contends that in this
situation, the review applicants are on one hand trying to recover
possession and avoiding all their commitments with the
Cooperative Society and individuals while, on the other hand, have
not brought on record any material to warrant review.
16. Upon instructions, he states that the proceedings filed
by them for enhancement of compensation registered as LAR No.
17 of 1982 are still pending. Shri Mishra, learned counsel,
therefore, contends that this type of modus operandi must be
strictly dealt with by Court and review petition should be
dismissed with exemplary costs.
17. Shri Chauhan, learned counsel, on behalf of the
intervenors submits that the intervenors have purchased plots on
subject land from the Cooperative Society and are in possession
thereof. They have moved separate applications under Gunthewari
Act for regularization, which are pending.
18. Shri Siras, learned counsel submits that he has moved
applications for intervenor vide Civil Application (O) Stamp Nos.
4388 and 4389 of 2015 and those applications need to be allowed.
The names of purchasers have been mutated in revenue records
because of sale deeds in their favour. The review applicants have
attempted to introduce new material on record without any
justification and that material cannot be looked into.
19. In reply arguments, Shri Parchure, learned counsel
submits that the Power of Attorney in favour of Milind Mahajan
was for limited duration with an object of getting the land released
from the Nagpur Improvement Trust and its acquisition. After
expiry of stipulated time that power of attorney ceased to operate.
However, Shri Mahajan high handedly and illegally entered into
certain transactions which are not binding upon the review
applicants. He admits that Reference Case No. 17 of 1982 is still
pending. He further, upon instructions, states that no Civil Suit
challenging unauthorized sales of Shri Mahajan has been filed. He
further submits, upon instructions from the first applicant Shri
Bharat, that a certificate of Shri Inamdar, Chartered Accountant
stating that there was no order of attachment of compensation
amount, issued by Income Tax department, was filed along with
SLP before the Hon'ble Apex Court.
20. The Hon'ble Apex Court has noted that the reasons
recorded for withdrawal of writ petition were incorrect according
to review applicants. Writ Petition withdrawn was instituted in the
year 1976 and it was registered as Special Civil Application No.
4436 of 1976. The direction to Nagpur Improvement Trust to pay
compensation amount forthwith after taking possession of land was
sought in it. This was withdrawn with liberty to file fresh on
20.12.1976. The reason for withdrawal of that writ petition was
attachment of compensation amount by the Income Tax
department. Thereafter, the possession was taken by Nagpur
Improvement Trust on 23.07.1981. Though, before the Hon'ble
Apex Court a certificate issued by the Chartered Accountant Shri
Inamdar is claimed to have been filed, it is not produced before
this court and our attention has not been invited to any such
document. As such, the first point disputed before the Hon'ble
Apex Court cannot be said to be established here in this
proceeding.
21. The petitioners, thereafter submitted before the Court
that possession was not taken. This submission needs to be
appreciated in the backdrop of facts which are looked into by the
Division Bench of this Court in its judgment dated 28.10.1991 in
Writ Petition No. 476 of 1983. That writ petition was filed on
10.01.1983, after advertisement was published by the Nagpur
Improvement Trust, inviting applications for purchase of flats by
intending buyers of specified class or classes. Thus, after NIT took
possession on 23.07.1981, the review applicants waited for more
than 1½ years. The burden was, therefore, heavy upon them to
show that the possession was not taken. This judgment of the
Division Bench was questioned in SLP before the Hon'ble Apex
Court. In paragraph 33, the Division Bench of this Court has
observed that one such document is dated 29.05.1981, raising
objections to taking possession. The petitioners before it admitted
service of notice for delivery of possession. There was another
document, a letter dated 24.07.1981 written by the Managing
Trustee of Shamji Kheta Estate. This letter admitted that the
possession was taken a day before i.e. on 23.07.1981 and
requested removal of immovable from the premises in the presence
of officers of NIT. The Division Bench has found that these
documents were sufficient to hold that NIT had taken possession of
entire 42.88 Acres of land on 23.07.1981. This appreciation of
documents dated 29.05.1981 and letter dated 24.07.1981 has not
been even touched by the review applicants. There are no
arguments to demonstrate that this consideration in paragraph 33
of its judgment dated 28.10.1991 in Writ Petition No. 476 of 1983
by the Division Bench is perverse.
22. The death certificates produced on record of review
petition are issued on 10.06.1969, 03.08.1974 and 27.05.1980.
Thus, these documents were very much available with the review
applicants when they filed Writ Petition No. 476 of 1983. There is
absolutely no justification for not using these documents then and
no explanation is offered why these documents could not be filed
and pressed into service then. In the absence of such an
explanation, contention that notice for taking possession was
served upon alleged dead persons is unacceptable. In paragraph
33, the Division Bench has found that Managing Trustee of these
applicants admitted the fact of taking possession on 23.07.1991.
In view of this finding, the effort to rely upon these documents is
by way of afterthought and cannot be countenanced.
23. The review applicants have also produced on record of
this review petition, electricity bills and receipts showing payment
of electricity charges. These documents are for the period from
04.06.2010 to 04.07.2010, 22.08.2011 to 22.09.2011 and
22.06.2012 to 24.07.2012. If the possession was not taken on
23.07.1981, the documents showing payment of electricity charges,
other charges like property tax pertaining to said property for the
period from July 1981 onwards could have been presented to this
Court with proper explanation. Regular payments ought to or could
have been pointed out in writ petition itself. Producing such
documents for a period which is about 20 years after the date of
taking possession, that too without any explanation, cannot be
accepted.
24. The fact that the petitioners withdrew MCA No. 232 of
1997 on 17.05.2002, that they executed Deed of Confirmation on
30.07.2002, that there was effort to obtain regularization of lay out
under Gunthewari Act, are not in dispute. Though, the grievance is
made against the Power of Attorney one Mahajan, regularization
under Gunthewari Act was pursuant to his acts only. No Civil Suit
has been filed by the review applicants, questioning any of the
documents executed by him purportedly on their behalf. In this
situation, filing of such electricity bills also does not advance the
cause of review petitions in review jurisdiction.
25. The conduct of review applicants show that in 1976,
they were interested in prompt payment of compensation to them.
Writ Petition filed by them came to be disposed of after the fact of
attachment of compensation was pointed out to the Court.
Thereafter, they did not object to taking of possession by NIT on
23.07.1981. They filed writ petition more than 1½ years thereafter
questioning the acquisition. After dismissal of writ petition, review
was filed and that review was also withdrawn on 17.05.2002. The
fact of unregistered agreements with the Cooperative Societies and
execution of Power of Attorney by them after dismissal of their writ
petition and during the pendency of SLP before the Hon'ble Apex is
not in dispute. It is in this background that we have to appreciate
the stand that as basic notifications dated 02.02.1964 and
03.09.1967 have been quashed and set aside, the petition filed by
the review applicants vide Writ Petition No. 476 of 1983 could not
have been dismissed.
26. In the case of Greater Noida Industrial Development
Authority vs. Devendra Kumar & Ors., (supra), the Hon'ble Apex
Court has observed that the acquisition was found to be a
colourable exercise of its power by the State Government. Here,
there is no such finding, on the contrary all the petitioners had
parted with possession of part of their lands to enable the NIT to
construct a Ring road upon it and it has been so constructed. The
review applicants did not oppose construction of the ring road &
never objected to taking of possession by NIT at all.
27. In the judgment in the case of State of M.P. & Ors. vs.
Vishnu Prasad Sharma & Ors., (supra), the Hon'ble Apex Court
found that Section 4 and Section 6 notifications are the basis of all
proceedings which follow. It has been held that there cannot be
successive notifications under Section 6 with respect to land
specified in one notification under Section 4(1) of the Land
Acquisition Act.
28. In the case of Delhi Development Authority vs. Sudan
Singh & Ors., (supra), the Hon'ble Apex Court has taken note of the
fact that Section 6 notification in relation to 12 villages in its
entirety stood quashed on 09.03.1981. Thereafter, other bunch of
writ petitions was filed claiming that though notification was
quashed, the judgment of High Court was not being followed and
writ petitioners were being dispossessed. Thus, there the
petitioners who approached Delhi High Court were never
dispossessed earlier. In present matter, the review applicants
parted with possession and did not assail it till filing of Writ
Petition No. 476 of 2003.
29. In the case of Vyalikaval House Building Cooperative
Society by its Secretary vs. V. Chandrappa & Ors., (supra), the
Hon'ble Apex Court finds that the acquisition totally to be
malafide and not bonafide. The defence of delay and acquiescence
by the owners therein was therefore found to be of no substance.
It found that the whole acquisition arose from a tainted notification
and was vitiated. As that notification was vitiated, the appellant
before it was not given any benefit.
30. In the case of M/s. Moghul Travels and Transport Co.
(P) Ltd. vs. Union of India & Ors., (supra), the learned Single Judge
has found that when notification as a whole stands quashed, such
judgment operates in respect to all the lands referred to in such
notification.
31. Here, Division Bench of this Court has found that in
1976 itself, present review applicants attempted to obtain relief of
payment of compensation to them immediately. The land
acquisition proceedings have resulted in Award dated 10.12.1975.
Thus, in the face of Award, a writ was sought directing NIT to take
possession and to pay compensation. The later facts looked into by
the Division Bench particularly the communications dated
29.05.1981 and 24.07.1981 by land owners also show that land
owners never objected to Land acquisition proceedings. In
paragraph 34, the Division Bench has found that after taking
possession on 23.07.1981, various developments have been made
in the area. NIT developed acquired land and spent substantial
amount on it. The ground was levelled, sewer lines have been laid
and first such of construction of road work was also over. The
amount of Rs. 12 lakh was spent for this purpose. About 6 acres of
acquired land was delivered in possession of Provident Fund
department of the Union of India. On 20 Acres of land, flats were
being constructed by HUDCO and a scheme for sanction of loan
was already cleared. The advertisement was issued and the
applications for allotment were also invited. 5461 applications
were received by the NIT and along with it, it received amount of
Rs.9,09,900/- as an earnest money. All these developments,
therefore, show that situation has become irreversible & innocent
persons who have purchased the plots or flats can not be affected.
In present facts when Sakkardara Street Scheme was not only for
developing of roads but also residential localities, these
developments at the cost of public on land claimed by the review
applicants cannot be ignored. The status of intervenors before us is
an entirely independent issue. They claim that they are put in
possession on the strength of title documents executed in their
favour by their Cooperative Housing Societies. The review
applicants have not filed any Civil Suit for getting such title deeds
cancelled.
32. The material on record, therefore, shows that
development on lands of review applicants could be undertaken
and completed independent of acquisition of adjacent lands. The
review applicants have not produced before this Court any map or
other similar document to demonstrate that the proposed
Sakkardara Street Scheme was one indivisible scheme which could
not have been segregated. They have not contended that the
development on adjacent lands was an integral part of
development activity on their lands and all such activities being
complementary to each other, needed to be developed together.
They have, therefore, not demonstrated that the development on
their land was integral part of the development in other adjacent
areas and could not have been undertaken separately. Hence,
quashing of the notifications mentioned supra, when proper
reasons and dismissal of writ petition by Division Bench on
28.10.1991, cannot be said to be an erroneous act, open to scrutiny
in review jurisdiction.
33. In this situation, we find substance in the contentions of
Shri Mishra, learned Senior Advocate that the review applicants
have failed to make out any case for invoking review jurisdiction.
Misc. Civil Application is, therefore, dismissed. However, in the
facts and circumstances of the case, there shall be no order as to
costs.
JUDGE JUDGE
******
*GS.
