Bombay High Court

Smt. Manjulabai Laxman Patil And ... vs Namdev Milu Patil (Since Decd.) ... on 2 February, 2021

Bench: Nitin W. Sambre

Dusane                                        1/10        3 wp 5904.2019 judg.doc

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.5904 OF 2019


     Smt. Manjulabai Laxman Patil & Ors.                ....     Petitioners

             Vs.

     Deceased Namdev Milu Patil                         ....       Respondents
     Shri. Santosh Namdev Patil & Ors.


     Mr. Sachin Shetye a/w Mr. Vishwanath Kapse for Petitioners.

     Mr. Rohit Sakhadeo for Respondent Nos. 10 to 12, 14 and 15.

     Mr. Akhilesh Dubey a/w Amit Dubey, Uttam Dubey a/w Siddhesh
     Rajput & Varad Dubey i/by Law Counsellor for Respondent No. 16.


                                         Coram : NITIN W. SAMBRE, J.

Date : 2nd FEBRUARY, 2021 P.C.:

1. The present petition questions the order passed in

Miscellaneous Civil Appeal No. 232 of 2016 by the learned District

Judge, 7, Thane on 21st February, 2018 wherein the order of refusal of

grant of injunction passed below Exhibit 5 on 22 nd September, 2016 by

the Joint Civil Judge, Senior Division, Thane in Regular Civil Suit No.

545 of 2013 came to be confirmed. As such, by this petition, the

Petitioner has prayed for an injunction.

Dusane 2/10 3 wp 5904.2019 judg.doc

2. The facts, which are necessary for deciding the petition are

as under :

The Petitioner claims that on 25th September, 1968,

Tukaram Kanha Patil was declared as deemed tenant and as such

purchased the suit land under Section 32 G of the Bombay Tenancy and

Agricultural Land Act.

Notification under Section 4 of the Land Acquisition Act in

relation to the property came to be issued on 3 rd February 1970, on the

very day, the land owner Tukaram Kanha Patil died. The Land

Acquisition Officer passed an Award, in which compensation was

claimed by one Namdeo Milu Patil and Prabhakar Hiraji Patil, resulting

into the Reference being made by the Special Land Acquisition Officer

to the District Judge on the issue of apportionment. The said

proceedings being L.A.R. No. 108 of 1987 were disposed of by a

Consent Decree, to which the Petitioner is not a party. The party to the

said Consent Terms namely Namdev Milu Patil was allotted land

admeasuring 300 sq. mtr under 12.5% scheme by the Respondent-

CIDCO on 26th July, 2012.

Dusane 3/10 3 wp 5904.2019 judg.doc

3. Being aggrieved by the benefit conferred on Namdev Patil

to the extent of developed land of 12.5% of land acquired, the

Petitioner initiated suit, being Regular Civil Suit No. 545 of 2013 on

26th June, 2013 claiming relief of injunction.

4. In the said suit, an application, Exhibit 5 came to be moved

seeking an injunction against Respondent Nos. 1 to 9 and 16 restraining

them from creating third party rights or in developing the suit property

either by themselves or through any other developer/ contractor and

also an order of restrainment is prayed from selling the developed

property. Against Respondent Nos. 10, 11 and 12, an injunction of not

to create third party interest was prayed.

5. The said prayer for an injunction was resisted by the

Respondent and as such vide impugned order dated 22 nd September,

2016, injunction application came to be rejected by the learned Civil

Judge, Senior Division, Thane, which order was confirmed on 21 st

February, 2018 by the District Judge-7, Thane and in Miscellaneous

Civil Appeal No. 232 of 2016. Hence, this petition.

Dusane 4/10 3 wp 5904.2019 judg.doc

6. The submissions of learned counsel for the Petitioner are

that the Petitioner is adopted son of deceased Tukaram Kanha Patil and

he is the only person, who can succeed to the estate of Late Tukaram

Patil, who died on 3rd February 1970. According to him, the third party

right created after 3rd February, 1970 i.e. from the date of Notification

under Section 4 are required to be declared void in view of provisions

of Sections 4,6 and 48 of Land Acquisition Act. The further contention

of learned counsel for the Petitioner are, both the Courts below have

recorded incorrect findings of fact as regards transfer of property by

Laxman Tukaram Patil in favour of Namdev Milu Patil. According to

him, even if the parties namely Namdev Milu Patil and Laxman

Tukaram Patil had acted on Sale-Deed dated 11 th October, 1983, still the

effect of provisions of Sections 4 and 6 can declare such transfer void

and that being so, only the Petitioners have right to claim the interest in

the suit property.

7. The further contention are, unless the rights of the

Petitioner are adjudicated qua his entitlement, he succeeded to the

property of Tukaram Patil in the capacity of adopted son, an injunction

needs to be ordered against the Respondent as prayed.

Dusane 5/10 3 wp 5904.2019 judg.doc

8. Learned counsel for the Respondent opposed the claim and

submits that the Petitioner has not questioned the transfer i.e. Sale-

Deed of 13th February 1983. The further contention are, the

compensation was received by Namdeo Patil under an Award. Another

factual matrix to which the attention of this Court is invited is the

Reference under Section 18 of Land Acquisition Act, preferred by

Prabhakar, who also claims to be adopted son of deceased Tukaram

Patil.

9. In the aforesaid background, the submissions are, the

embargo on the right to transfer after issuance of notification under

Section 4, will have to be read to the benefit of the acquiring body and

not the land owner or the person claiming interest therein.

10. Apart from above, the submissions are that the relief as is

claimed by the Petitioner cannot be granted particularly when the

possession of the property, was already taken by CIDCO. The

Respondent-CIDCO has entered into tripartite agreement with

Respondent Nos. 1 to 9 and Respondent No. 16 i.e. developer on 17 th

Dusane 6/10 3 wp 5904.2019 judg.doc

September, 2012. Prior to the above, on 27 th April, 2007, Letter of

Intent came to be issued by CIDCO, and plot No. 60 is leased out to

Respondent Nos. 1 to 9 as an agreement of lease was executed on 26 th

July, 2007. As such the claim suffers from delay and latches.

11. Considered rival submissions.

12. Both the Courts below in the impugned order have in detail

dealt with the contentions on the facts raised by the Petitioner and have

concurrently held that the Petitioner is not entitled for an injunction as

has been prayed by him.

13. Apart from above, the Petitioner cannot take benefit of

provisions of Land Acquisition Act, as embargo created on the transfer

by the land owner after issuance of Notification under Section 4 is

required to be read to the benefit by the acquiring body and not the

owner.

14 Learned counsel for the Respondent has rightly invited

attention of this Court to the Judgment of the Apex Court in the matter

Dusane 7/10 3 wp 5904.2019 judg.doc

of Rajasthan State Industrial Development and Investment Corporation

Vs. Subhash Sindhi Co-operative Housing Society, Jaipur and Others,

reported in (2013) 5 Supreme Court Cases, page 427. Paragraph 13 of

the said judgment reads thus :

"13. There can be no quarrel with respect to the settled legal proposition that a purchaser, subsequent to the issuance of a Section 4 notification in respect of the land, cannot challenge the acquisition proceedings, and can only claim compensation as the sale transaction in such a situation is void qua the Government. Any such encumbrance created by the owner, or any transfer of the land in question, that is made after the issuance of such a notification, would be deemed to be void and would not be binding on the Government (Vide Gian Chand V. Gopala, Yadu Nandan Garg V. State of Rajasthan, Jaipur Development Authority V. Mahavir Housing Co- op. Society, Jaipur Development Authority Vs. Daulat Mal Jain, Meera Sahni V. Lt. Governor of Delhi, Har Narain V. Mam Chand and V.

Chandrasekaran V. Administrative Officer.)"

Dusane 8/10 3 wp 5904.2019 judg.doc

15. Perusal of the aforesaid observations, admittedly speaks of

the encumbrance created by the owner, or any transfer of land after

issuance of Section 4 Notification would be deemed to be void and will

not be binding on the Government or the acquiring body. However,

what can be noticed is, the Petitioner is trying to take benefit of Section

4 Notification based on the alleged transfer, so as to build his case that

he has a right in the land to the extent of 12.5% leased by the CIDCO in

favour of Respondent Nos. 1 to 9. The Petitioner at no point of time,

has questioned the award or apportionment of compensation. Rather

the conduct of the Petitioner from the pleadings in the plaint

demonstrate that he is trying to claim restrictive rights to the extent of

leased out property in favour of Respondent Nos. 1 to 9 that too by

taking benefit of Section 4 of Land Acquisition Act.