Harshad D Shah vs State Of Maharashtra And 3 Ors
2016 Latest Caselaw 5973 Bom

     suresh                                         1-WPG-2884.2014.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
                  ORDINARY ORIGINAL CIVIL JURISDICTION
                     WRIT PETITION NO.2884 OF 2014




                                               
     Harshad D. Shah
     S/o Dhirajlal Chimanlal Shah, of




                                              
     Mumbai, Indian Inhabitant, residing
     at Madhu Kunj, Plot No.267, 
     8th and 11th Road Corner, Khar,
     Mumbai-400 052.                                    ....  Petitioner




                                  
              - Versus -     
     1. State of Maharashtra, 
         through the Secretary, 
                            
         Revenue Department, Mantralaya,
         Mumbai-400 001.

     2. Collector, Mumbai City, having
      


         his office at Old Customs House,
         Shaheed Bhagat Singh Road,
   



         Fort, Mumbai-400 001.

     3. Special Land Acquisition Officer,





         Mumbai & Mumbai Suburban 
         District, Old Customs House Yard,
         DD Bldg., Fort, Mumbai-400 025.

     4. Bharat Education Society,





         a Society registered under the 
         Maharashtra Registration Act, 1860,
         and registered as Public Trust Act
         under Bombay Public Trust Act
         having its office at Ram Nivas
         Building, 12th Lane, Kethwadi,
         Mumbai-400 004.                                ....  Respondents



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      suresh                                                1-WPG-2884.2014.doc

                                           WITH




                                                                              
                        NOTICE OF MOTION NO.150 OF 2015




                                                      
                                      IN
                         WRIT PETITION NO.2884 OF 2014




                                                     
     Harshad D. Shah                                           ....  Applicant
           In the matter between
     Harshad D. Shah                                           ....  Petitioner
           Vs.




                                          
     State of Maharashtra & 3 Others                           ....  Respondents
                             
     Mr. Ajay Panicker i/by M/s. Ajay Law Associates for
     the Petitioner/Applicant.
                            
     Ms Geeta Shastri, Addl. Government Pleader, for
     Respondent Nos.1 to 3.
     Mr. G.V. Murti with Mr. Mohan Rao & Mr. R. Malandkar
     i/by M/s. MSR & Associates for Respondent No.4.
      
   



                                         CORAM: S.C. DHARMADHIKARI &
                                                        B.P. COLABAWALLA, JJ.

DATE : OCTOBER 13, 2016

ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.):

1. Rule. The respondents through their respective

counsel waive service. By consent, rule is made returnable

forthwith and the writ petition is taken up for hearing and final

disposal.

suresh 1-WPG-2884.2014.doc

2. By this petition under Article 226 of the Constitution

of India, the petitioner is claiming a declaration that the

proceedings under the Land Acquisition Act, 1894, ending in an

Award dated 20-9-1984, have lapsed, for this is a clear case

covered by sub-section (2) of Section 24 of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short, "the Right

to Fair Compensation Act, 2013").

3. The petitioner states that the subject-matter of the

petition is an immoveable property/land bearing City Survey

No.1108 of Girgaum Division, admeasuring 933.03 sq.mtrs.. The

property was owned by the petitioner's grandfather Chimanlal

Manchubai Shah. He expired on 13-2-1949, leaving behind his

legal heirs and representatives.

4. The details of the same are set out in para 2.1. Under

certain Gift Deeds, the petitioner claims that he has become the

absolute owner of the subject-property.

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5. The fourth respondent is a Society at whose behest

proceedings for acquisition of the said land were initiated under

the predecessor Act, namely, the Land Acquisition Act, 1894. For

short, it shall be referred to as "the Act of 1894".

6. The petitioner complains that a notification was

published in the Bombay Government Gazette, dated 30-7-1959,

a copy of which is at Annexure-A. Then, a notice under Section

4(1) of the Act of 1894 also came to be issued on 21-8-1959.

The acquisition was for a public purpose, namely, for a

Municipal School. The petitioner does not dispute that he and

other co-owners lodged their objection to this notice in writing.

A typed copy of the written objection is annexed as Annexure-C.

This acquisition came to be cancelled, according to the

petitioner, on 25-9-1964.

7. Thereafter, a Development Plan was sanctioned for

the City of Mumbai under the Maharashtra Regional and Town

Planning Act, 1966 (for short, "the MRTP Act") and the plot was

suresh 1-WPG-2884.2014.doc

reserved for a Secondary School. Once again, the fourth

respondent moved the Government for acquisition and this time

the Government issued a notice under Section 4(1), duly

published it in the Maharashtra Government Gazette Part-I,

dated 24-9-1970, notifying the subject-property for the purpose

of expansion of Sardar High School for Bharat Education Society

(respondent No.4). Once again, the petitioner objected and in

writing. Annexures "G" and "H" to the writ petition are copies of

the written objections. On 25-4-1974, a Notification under

Section 126 of the MRTP Act r/w Section 6 of the Land

Acquisition Act was published. The public purpose was for

setting up a Secondary School. Then notices under Section 9 of

the Act of 1894 were issued on 10-1-1975.

8. Once again, objections were lodged and after the

requisite procedure was completed, the Award was made under

Section 11 of the Act of 1894. That Award was made on

20-9-1984. The petitioner, on receipt of a notice of this Award

being made, filed a writ petition being Writ Petition No.1008 of

1985 in this Court.

suresh 1-WPG-2884.2014.doc

9. The tenants on the property also raised a challenge

to the acquisition under the Act of 1894 by instituting writ

petitions and it is stated by the petitioner himself, in para 2.20,

that as far as the tenants are concerned, respondent No.4 agreed

to provide them alternate accommodation. Thus, their

rehabilitation was taken care of. Thereafter, the tenants' writ

petitions were disposed of on 21-10-1994. Equally, the

petitioner's petition came to be dismissed on 25-10-1994. The

Awards made under the land acquisition proceedings were thus

upheld.

10. Now the argument is that though it is claimed that

physical possession of the property was taken over by the State

officials and it was made over to respondent No.4 as far back as

on 2-2-1996, there is no evidence placed on record of the

petitioner being physically dispossessed.

11. The learned counsel appearing for the petitioner

raised only one contention for our consideration and that is by

suresh 1-WPG-2884.2014.doc

relying on sub-section (2) of Section 24 of the Right to Fair

Compensation Act, 2013. That reads as under:-

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain

cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),-

(a) where no award under section 11 of the said

Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the

said Act has not been repealed.

(2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of

1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be

deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the

suresh 1-WPG-2884.2014.doc

beneficiaries, then, all beneficiaries specified in the

notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to

compensation in accordance with the provisions of this Act."

12. A bare perusal thereof would indicate that

notwithstanding anything contained in Section 24(1), in any

case where Award has been passed under the Act of 1894 five

years or more prior to the commencement of the Right to Fair

Compensation Act, 2013 but where physical possession of the

land has not been taken or the compensation has not been paid,

the said proceedings shall be deemed to have lapsed and the

appropriate Government, if it so chooses, shall initiate

proceedings for acquisition of the said land afresh in accordance

with the provisions of the Right to Fair Compensation Act, 2013.

13. The petitioner in para 2.23 of the writ petition states

as under:-

"It is claimed that on 02/02/1996, possession was given by Respondent No.3 to Respondent No.4 Society.

However, the physical possession of the property continues with the Petitioner and no physical

suresh 1-WPG-2884.2014.doc

possession has ever been taken by the Respondents at

any point of time. The Petitioner is in actual physical possession of the property even today. A copy of the

so-called possession receipt dated 02/02/1996 is hereto annexed and marked as Exhibit-Q. It is clear from the same that the Petitioner has not handed over possession and the document is not of handing over of

physical possession."

14. On a perusal thereof it is clear that the petitioner is

aware that certain steps were taken for obtaining physical

possession of the immoveable property/land under the 1894 Act

and further steps by the Special Land Acquisition Officer have

also been taken. The respondent No.4-Society, to whom the

physical possession is claimed to have been handed over, was

called upon to explain whether it has abided by its commitment

and undertaking given to this Court.

15. The petitioner in para 2.24 of the writ petition states

that the possession of the immoveable property though handed

over to respondent No.4, it is of a temporary nature.

16. Then a feeble attempt is made in para 2.25 to urge

that even the compensation has never been paid to the

suresh 1-WPG-2884.2014.doc

petitioner.

17. It is only in order to ascertain this factual position

that we have perused the lengthy pleadings, particularly the

affidavit of the contesting respondent. The affidavit of the

contesting respondent, in para 10 at page 160, relies upon the

fact that not only was the Award made but the petitioner and

other co-owners of the property were called upon to collect the

compensation amount. These letters addressed to the petitioner

and the other co-owners were duly served. The compensation

amount has thereafter been deposited in this Court.

18. It is claimed in this affidavit very clearly that the

possession of the property was taken over and that is evidenced

by the possession receipt and the panchnama.

19. Mr. Panicker would submit that this is only a

symbolic possession and the physical possession is still with the

petitioner.

20. We do not see how the petitioner can be permitted

suresh 1-WPG-2884.2014.doc

to raise such a contention, for it is the petitioner's affidavit in

rejoinder which states that the possession, though handed over

to respondent No.4, is of a temporary nature. We have before us

an affidavit in reply filed by Ajit Panditrao Sakhare, Deputy

Collector (Land Acquisition), Mumbai City on behalf of

respondent Nos.1 to 3. In this affidavit in reply, it has been

stated in para 4 that the acquisition proceedings had been

completed and possession of the land has been handed over to

respondent No.4-Society on 2-2-1996. Exhibits '2' and '2A' to this

affidavit are copies of the possession receipt dated 2-2-1996

along with the panchnama.

21. We have perused these exhibits at pages 320 and

321 of the paper-book. Mr. Panicker is not right, for the contents

of this affidavit would demonstrate that symbolic possession of

the premises in possession of the tenants only had been taken.

As far as rest of the property is concerned, the physical

possession was duly taken and even handed over to the

acquiring body on 2-2-1996. The possession receipt clearly

shows that it was a Special Land Acquisition Officer of MHADA

suresh 1-WPG-2884.2014.doc

who was present. He took over the possession of the land under

acquisition, situate in Mumbai City, Division Girgaum, City

Survey No.1108 and the approximate area is stated to be 947.32

sq.mtrs..

22. Preceding this document is a letter/notice dated

22-1-1996 to all owners/co-owners informing them that physical

possession of the property would be taken and handed over.

This letter clearly states that the Land Acquisition Officer would

take only symbolic possession of the premises which are

occupied by the tenants and as far as rest of the premises, the

Land Acquisition Officer would take physical possession.

23. In the very affidavit in reply filed by the Deputy

Collector in this writ petition, at page 5, it is stated that

obligation towards the tenants is distinct from that of the

petitioner. The petitioner is claiming to be the owner of the

property. Notice, copy of which is at page 318 of the paper-

book, was duly served upon the petitioner and as an owner of

the property he has acknowledged receipt of the same on page

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319.

24. Yet, the petitioner makes a bold assertion in the writ

petition. That assertion is completely belied by the three

documents from pages 318 to 321 of the paper-book. These are

records maintained in the office of the Special Land Acquisition

Officer. He is none other than an officer from the office of the

Collector of Mumbai City. His statements on oath and supported

by contemporaneous record cannot be disbelieved at the

instance of the petitioner. The petitioner has clearly woken up

belatedly. He is seeking to question an Award made more than

32 years back and the act of his dispossession more than 20

years back. At the instance of such a petitioner who is aware

that he has lost physical possession and thereafter the title to the

immoveable property, we do not think that in writ jurisdiction

we should decide any larger question or wider controversy.

From the facts we found that the petitioner has come up with a

completely incorrect version. The physical possession of the land

was already taken over by the State. It vests in it. We find no

merit in the writ petition and it is accordingly dismissed. The

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rule is discharged.

25. In view of dismissal of the writ petition, Notice of

Motion No.150 of 2015 does not survive and it accordingly

stands disposed of.

(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)