Chhaya Suresh Jadhav And Others vs Addl. Collector And Competent And ...
2022 Latest Caselaw 3998 Bom

          Digitally
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
                                                           AO-376-2021.odt
          2022.04.13
          16:35:24
          +0530

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION

                                     APPEAL FROM ORDER NO.376 OF 2021
                                                      WITH
                                    INTERIM APPLICATION NO.3150 OF 2021

                       Chhaya Suresh Jadhav and Ors.                          ...Appellants
                            Vs
                       The Addl. Collector and Competent
                       Authority (ULC) Brihanmumbai and Ors.                  ...Respondents

                                                    WITH
                                      APPEAL FROM ORDER NO.380 OF 2021
                                                    WITH
                                     INTERIM APPLICATION NO.3154 OF 2021

                       Chhaya Suresh Jadhav and Ors.                          ...Appellants
                                Vs
                       Dy. Collector (Enc-Rem), Malad
                       and Ors.                                              ...Respondents

                                                     ...

Mr. Prasad S. Dani, Senior Advocate i/by Ms. Sonali G. Sase for the Appellants in both Appeals.

Smt. Pallavi Dabholkar, AGP for the State.

Mr. Girish S. Godbole, Senior Counsel with Ms. Pooja Kshirsagar Kane i/by Mr. Mehul Rathod for R.No.4 in AO/376/21 and for Respondent No.3 in AO/380/21.

Mr. Ashish Kamat i/by Mr. Ashish A. Gatagat and Mr. Animesh Singh for R.No.4 in AO/376/21 and for R.No.3 in AO/380/21.

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CORAM : SANDEEP K. SHINDE J.

RESERVED ON : APRIL 6, 2022.

PRONOUNCED ON: APRIL 13, 2022.

P.C. :

Though these two Appeals From Order are arising out of

two different orders, in two suits, yet, facts therein, being

interwoven and overlapping, same are disposed of by common order.

Briefly stated facts of the case leading to, First Appeal

From Order No.376 of 2021 are as under;

1 One, Dhaklya Warli was protected tenant in land Survey

No.260/1. Ziparibai Dhaklya Warli, wife of Dhaklya Warli, is

predecessor-in-title of the appellants/plaintiffs. Deputy Collector,

Urban Land Ceiling, Gr. Bombay vide order Under Section 8(4) of

Urban Land Ceiling Act, 1966 ('ULC, 1966 for short), held that

deceased, Dhaklya Warli and his wife Smt. Zipribai Warli, both

constitute one 'family', within the meaning of Section 2(f) of the ULC

Act and therefore, were entitled to retain land admeasuring 500

sq.mtrs. only. In consequence, land admeasuring 2746.60 sq.mtrs. of

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land Survey No.260/1, CTS 660 at Village: Malad/Borivali was

declared, 'surplus vacant land' (hereinafter called 'Suit Land' for

short). Following that, Notification under Sub-section (1) of Section

10 was issued on 29th August, 1988. It was followed by Notification

under Section 10(3) of the ULC Act published on 30 th March, 2005,

whereby Suit Land deemed to have acquired and vested absolutely in

the Government of Maharashtra, free from all encumbrances.

Whereafter, on 15th February, 2006, Deputy Collector and Competent

Authority issued a notice dated 15 th February, 2006 to Ziparibai,

under Section 10(5) of the ULC Act by which, Land Survey Officer,

was empowered to take over; possession of the suit land on 21 st

March, 2006. In the meanwhile (before taking possession), Ziparubai

Warli passed away on 8th March, 2006. Yet, pursuant to the notice,

possession of the suit land was allegedly handed over by the plaintiff

no.5 (Grand daughter of Ziparibai) to the City Survey Officer, Mr.

Katkar on 21st March, 2006. Simultaneously, a panchanama of

possession, was allegedly drawn in presence of plaintiff nos.1 and 5.

On the same date, City Survey Officer vide letter dated 21 st March,

2006 submitted a report of having taken possession, to Deputy

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Collector and Competent Authority. In consequence, revenue records

were altered relating to Suit Land. Plaintiff's case, is although Notice

under Section 10(5) of the ULC Act, panchanama and possession

note, bear signature of plaintiff nos.1 and 5, same were taken on

misrepresentation of facts. In fact, plaintiffs would assert, actual

possession was not taken on 21st March, 2006, as claimed by the

State and their uninterrupted possession in the Suit Land continuous

throughout. On 29th November, 2007, the State of Maharashtra

adopted Urban Land (Ceiling & Regulation) Repeal Act, 1999. In

2009, plaintiffs had filed Writ Petition No.2497 of 2009, contending

and claiming that, in view of saving clause, contained in Section 3(1)

of the Repeal Act, what was saved is, vesting of land in the State

Government under Sub-section (3) of Section 10 of the ULC Act,

possession of which was already taken over by the Government.

Therefore, contended, though Suit Land vested in the State

Government, but since its possession was not taken, vesting wiped

out. Writ Petition was opposed by the Deputy Collector and

Competent Authority on the ground, that after service of notice under

Section 10(5) of the ULC Act, the office of the Authorised Officer,

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took over the possession of the suit land on 21 st March, 2006,

through Jaya Santosh Andher (Plaintiff No.5), grand-daughter of

Ziparibai, in presence of three panchas. The petitioners (Plaintiffs)

disputed this fact. In consideration of the disputed question of facts,

the Division Bench held, thus;

" In these circumstances, this would not be proper coram to consider that aspect. It will be open to the petitioner if they have got any grievance in respect of Survey No.260/1 (Suit Land) to file independent proceedings by way of suit or other remedy which they may have."

2 With the above observation, petition was disposed of on

21st June, 2010. Since then, plaintiffs, claim they were in

uninterrupted and peaceful possession of Suit Property. It appears,

plaintiffs were apprehending dispossession and therefore, on 1 st April,

2014, appellants, issued a notice to State of Maharashtra, Principal

Secretary, Urban Development Authority, Additional Collector and

Competent Authority (ULC), under Section 80 of the Civil Procedure

Code, 1860 calling upon them, to restrain their officers from giving

threats of evicting plaintiffs from the suit property. After which,

plaintiffs instituted the Long Cause Suit No.1421 of 2014 ('First Suit'

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for short) in June, 2014 against the State and its officers seeking

following two reliefs;

"a) that this Hon'ble Court be pleased to declare that, the Defendants are not entitled to evict and/or dispossess the Plaintiffs from the suit property viz., land together with structures, bearing Survey No.260, Hissa No.1, C.T.S.No.660, admeasuring about 2746.50 sq.mtrs., situate, lying and being at General Arunkumar Vaidya Marg, Village Malad, Taluka Borivali, Mumbai Suburban District, pursuant to the Possession Receipt dated 21/3/2006, and Panchanama dated 21/03/2006.

b) that the Defendants, their officers, employees, agents, and/or servants be restrained by a permanent order and injunction of this Hon'ble Court from interfering, obstructing and/or disturbing the Plaintiffs' peaceful use, occupation and possession of the suit property, viz. Land together with structures, bearing Survey No.260, Hissa No.1, C.T.S. No.660, admeasuring about 2746.50 sq.mtrs. Situate, lying and being at General Arunkumar Vaidya Marg, Village Malad, Taluka Borivali, Mumbai Suburban District, or any portion thereof, pursuant to the Possession Receipt dated 21/03/2006 and Panchanama dated 21/03/2006;"

3 Pending suit, in Notice of Motion No.1723 of 2015,

plaintiffs sought, temporary injunction to restrain the

defendants/State, from evicting the plaintiffs and/or disturbing their

possession in the suit land. Pending Motion, learned trial Court, vide

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order dated 10th July, 2014, directed plaintiffs and defendants to

maintain the position, as it is, till defendants put up their reply to

the Notice of Motion. However, after hearing the parties, vide order

dated 27th September, 2021, learned trial Court dismissed the Notice

of Motion. That order is challenged in Appeal From Order No.376 of

2021, under Order 43 Rule 1(r) read with Section 104 of the CPC.

This one, is First Appeal From Order.

4 Facts leading to Second Appeal From Order No.380 of

2021:

This appeal arises from the order dated 27 th September,

2021 in Notice of Motion No.934 of 2015, in Second Suit No.846 of

2015. This suit was filed on 25th March, 2015 in the following stated

facts and circumstances;

5 On or around 6th February, 2015, Deputy Collector

(Encroachment) pasted a public notice on the suit property, to the

effect that, on 23rd February, 2015, survey team, would visit the suit

property for carrying out survey of, "slum areas", for certification of

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Annexures-II (Certificate of Eligibility of slum dwellers on the Suit

Land) pursuant to Slum Rehabilitation Scheme submitted by the

Pragati Co-operative Housing Society (Proposed), respondent no.3.

After which, plaintiffs by advocate's notice dated 12 th February, 2015

apprised, Deputy Collector of interim order dated 10 th July, 2014,

that was passed in First Suit, whereby parties were directed to

maintain status-quo in respect of the Suit Property. Thus, requested

Deputy Collector, not to proceed with the survey of the Suit Land. In

spite of it, Deputy Collector, vide reply dated 12 th March, 2015

informed plaintiffs' advocate, that the order dated 10 th July, 2014

does not preclude the Deputy Collector from conducting the survey,

as it would not change or alter the status of the Suit Property and

also for the reason, that, Deputy Collector (Encroachment) was not

party to the Suit. With these assertions, Deputy Collector pasted

second public notice dated 20th March, 2015, on the Suit Property

and informed, slum dwellers that survey would be conducted on 27 th

March, 2015. It is plaintiffs' case that, although part of the Suit

Property, was occupied by the encroachers, neither the Suit Property

nor part of it was declared as 'Slum Area' within the meaning of

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Section 2(g) of the Maharashtra Slums Act ('Slum Act' for short). Yet,

to confirm this fact, plaintiffs relied on a letter dated 9 th April, 2014

(Page 83 Exhibit "A") . It is evident from the said letter, that Slum

Rehabilitation Authority was of the opinion, that for want of,

declaration of 'Slums Area', it would be improper to sanction

Rehabilitation Scheme of proposed society forwarded through,

developer, M/s. Rahat Construction and particularly when Slums were

on private land. However, apprehending that Slum Rehabilitation

Authority would, proceed with implementation of the Scheme,

appellants instituted Second Suit No.846 of 2015 in March, 2015,

seeking declaration that defendants are not entitled to implement any

Slum Rehabilitation Scheme on the Suit Property. Pending suit,

plaintiffs moved an application seeking order to restrain the

authority, from implementing the Slum Rehabilitation Scheme.

6 The learned trial Court, after hearing the parties, declined

the interim relief and dismissed Notice of Motion No. 934 of 2015 in

Suit No. 846 of 2015 (Second Suit) by order dated 27 th September,

2021. This order is subject matter of Appeal From Order No. 380 of

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2002 (Second Appeal From Order).

7 Heard learned counsel for the Parties. Perused the

impugned orders.

8 The Appeals give rise to two questions;

(1) Whether, plaintiffs have prima-facie, shown violation of Section 10(5) of the ULC Act and the procedure followed by the State preceding taking over possession of the Suit Land on 21 st March, 2006, was inherently wrong i.e. "without following due process of law" ? AND

(2) Whether in absence of declaration under Section 4 of the Slums Act, authority could implement the Slum Rehabilitation Scheme in the suit land ?

(3) Whether orders call for interference ?

. It may be noted that in both the suits throughout and till date, order directing the parties to maintain status-quo is in force.

9 Indisputably, while deciding the surplus vacant land,

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under the ULC Act, the Competent Authority held that the

original holder, Shri Dhaklya L. Warli (Predecssor-in title of the

Plaintiff) was alive on the relevant date and, therefore, his major

daughters were not entitled to separate share during the lifetime

of Dhaklya Warli. Thus, held deceased Dhaklya Warli and his wife

Smt. Ziparibai D. Warli, constitute a 'family' in relation to Suit

Land and, were entitled to retain land admeasurng 500 sq.mtrs.

only.

10 Section 10 of the ULC Act contemplates procedure to

be followed for acquiring vacant land in excess of ceiling limit.

Herein, vide notice dated 15 th February, 2006, under Sub-Section

(5) of Section 10 of the ULC Act, Ziparibai was called upon to

surrender or deliver possession of suit land to Authorised Officer

on 21st March, 2006. I have perused two copies of notice. One is

office copy of the said notice at Exhibit "E"; whereas Notice

allegedly acknowledged by plaintiff no.5 is at Exhibit 10. Neither

of these notices, reveal, when, it was served on plaintiff no.5.

According to State, notice was issued to Ziparibai but served and

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acknowledged by Plaintiff No.5. Therefore, before serving it on

Plaintiff No.5, State ought to have shown, that despite, attempt to

serve it, on Ziparibai, it could not be served and therefore, as a

last resort, it was served on Plaintiff No.5. This fact is neither

pleaded nor there is evidence to that effect. Admittedly, Ziparibai

expired on 8th March, 2006, i.e., after issuing notice, but before

the date, scheduled for taking over possession of the suit land viz.

21st March, 2006. Yet, possession was allegedly taken over in

pursuance of notice on 21st March, 2006, when noticee (Ziparibai)

was not alive. This itself shows, inherent defect in procedure and

proof of violation of Section 10(5) of the Act. Against these

admitted facts, contention of the State is that, notice was served

on plaintiff no.5 and thereafter, she delivered the possession.

These arguments are contrary to the averments in the Written

Statement of the State. Paragraph 7 of the Written Statement says,

Notice at Exhibit "E" under Section 10(5) was received by

Ziparibai; whereas paragraph no.9 say, though notice was issued

to Ziparibai, it was served on her legal heir, Smt. Jaya (Plaintiff

No.5). It means, notice was served, after the death of Ziparibai.

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At the first place, there is no evidence on record suggesting as to

when and on which date, notice was served on plaintiff no.5.

That to say, whether before or after Ziparibai's death. As per

Written Statement, it was served on Plaintiff No.5 as legal heir of

Ziparibai. If that was the case, the State ought to have issued

notice to plaintiff no.5 for handing over possession of the Suit

Land. However, that was not done. Assuming the notice was

served on Plaintiff No.5 as heir of Ziparibai, it is not known, as

to how the State ascertained that plaintiff no.5 was legal heir of

Ziparibai. Thus, on, primary evaluation of these facts, it is to be

held, State has not followed 'just' and 'fair' procedure. Besides,

notice at Exhibit "E" (Office Copy) overleaf contains a

instruction, that, if owner of the land does not remain present to

deliver the possession, it could be taken unilaterally. Herein, it is

not State's case that possession of the Suit Land was taken

pursuant to the powers under Sub-Section (6) of Section 10 of the

ULC Act. At any rate, there is one more aspect, which strengthens

plaintiffs' case, that physical/actual possession of the Suit Land

was not taken. Herein, the trial Court while granting ad-interim

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relief in First Suit has re-produced arguments of State's Counsel in

paragraph 5, which read as under;

" The crux of the matter in hand is whether possession of the Suit Land has been handed over to the State prior to 29th November, 2007 (date on which Repeal Act adopted in the State of Maharashtra). On one hand, plaintiffs show, their possession and on the other hand, defendants show possession receipt dated 21st March, 2006. The learned counsel for the State argued that no physical possession is shown in favour of the defendants but there is symbolic possession and hence, plaintiffs are not entitled to get ad-interim relief." (emphasis supplied).

. Thus, primary evaluation of documents/pleadings and

observations of the trial Court (re-produced above) leads me to

hold that State has not followed fair and just procedure, while

acquiring the Suit Land. It is settled law that procedure

established by law means right, just and fair procedure and not

arbitrary fanciful or oppressive; otherwise it would be no,

procedure at all and requirement of Article 21 would not be

satisfied. Thus, the 'procedure established by law' has the same

significance as the 'due process of law' as held in the case of

Maneka Gandhi v. Union of India. In this case, although the State

has placed on record, notice issued under Section 10(5) of the

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ULC Act, possession receipt and the panchanama, nevertheless,

prima-facie, procedure allegedly followed was inherently wrong

and affected the process of taking over possession. More so, there

is serious doubt, as to whether the State had followed the

procedure preceding taking over the actual possession or was it

just a symbolic possession, shown on papers. Therefore, in the

interest of justice, it is essential to afford opportunity to the

plaintiffs and the State to prove their case by leading evidence on

these disputed questions of facts. Conversely, refusing relief to

plaintiffs would cause serious prejudice to their rights. For all that

reasons, I hold, plaintiffs have made out a prima-facie case;

balance of convenience tilts in their favour and would suffer

irreparable loss if the injunction is refused. Therefore, order

impugned in the Appeal From Order No.376 of 2021 calls for

interference. ____

11 Learned counsel appearing for the respondents

submitted that First Suit neither challenges the notice issued under

Sub-section (5) of Section 10 of the ULC Act nor the panchanama

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nor possession receipt, dated 21st March, 2006, which conclusively

prove, factum of taking over possession on 21 st March, 2006.

Submission is, the suit simplicitor for declaration, that the

defendants are not entitled to evict and/or dispossess the plaintiffs

from the Suit Property without their being a challenge to the

notice issued under Section 10(5), possession note and the

panchanama, was not maintainable. In support of this submission,

reliance was placed on the judgment of the Apex Court in the

case of T.V. Ramakrishna Reddy 2021 SCC OnLine Supreme Court

674. In the cited case, question fell for consideration was,

whether the suit simplicitor for permanent injunction without

claiming declaration of title as filed by the plaintiffs was

maintainable. The Hon'ble Apex Court relying on the judgment of

Ananthula Sudhakar (2008) 4 SCC 594 has held that 'where the

plaintiff's title is not in dispute or under the cloud, a suit for

injunction could be decided with reference to the finding on

possession. Thus, held that if the matter involves complicated

questions of facts and law relating to title, the Court will relegate

the parties to the remedy by way of comprehensive suit for

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declaration of title, in stead of deciding the issue in a suit for

mere injunction.' Therefore, even in this case, it is open to the

trial Court to relegate the plaintiffs to the remedy by filing

comprehensive suit for declaration of title if found necessary. In

this case, although the plaintiffs have not specifically challenged

notice and the possession receipt dated 21 st March, 2006,

nevertheless, perusal of the plaint clearly shows that plaintiffs

have denied the execution of the possession receipt and the

panchanama contending that actual possession was never taken.

Thus, in substance, plaintiffs have also challenged these three

documents, which could be seen if the prayer clauses (1) and (2)

of the suit are read together. Therefore, judgment in the case of

T.V.Ramakrishna (Supra) does not help the respondents. Next

submission is, the plaintiffs herein had filed Writ Petition in 2009

and challenged the acquisition. In the said Writ Petition, the State

had filed reply and produced a copy of notice issued under

Section 10(5) of the ULC Act, possession receipt and panchanama

dated 21st March, 2006. The said Petition was disposed of on 21 st

June, 2010 granting liberty to petitioner, to file independent

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proceedings. Thus, argued, in spite of knowing these facts, way

back in 2009, plaintiffs did not dispute and/or challenge the,

factum of possession of the Suit Property being taken over by the

State, within reasonable time. Mr. Godbole, learned counsel for

Respondents, would rely on the judgment of the Apex Court in

the case of State of Assam 2015 (5) Supreme Court Cases 321 to

contend that since alleged violation of Section 10(5) of the ULC

Act has been challenged nearly after five years, it must be

construed that the plaintiffs deemed to have waived their right

under Section 10(5) of the Act. In my view, the facts in case of,

State of Assam (Supra) were different than the case in hand. In

the said case, Notification under Section 10(1) was issued on 16 th

May, 1984. Thereafter, in November, 1984, father of the

respondents sold the land to six persons under six different sale

deeds. In 1987, the State issued a Notification under Section 10(3)

of the ULC Act to the effect that surplus land of the father of the

respondents belonged to the Government. The physical possession

was taken on 7th December, 1991. The subsequent owners

challenged the proceedings but were unsuccessful upto the

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Supreme Court. In 2003, the State allotted the excess land to

Guwahati Metropolitan Development Authority, on 12 th December,

2003. Urban Land (Ceiling and Regulation) was repealed on 6 th

August, 2003. On 25th December, 2003, Guwahati Metropolitan

Development Authority was handed over allotted land. This action

was challenged before the High Court. The Single Judge upheld

the allotment in favour of Guwahati Development Authority.

Whereas, in Appeal, Division Bench of the High Court reversed

findings of the Single Judge and ordered restoration of the

possession of land. In back-drop of these facts, the Hon'ble Apex

Court has held in paragraph 16 as under;

"16 The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7-12- 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real Shivgan

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prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure."

12 Facts in this case are altogether different than the

facts in the cited case. Herein, evidence relied on by the State to

contend that possession was taken over on 21 st June, 2006, itself,

was uncertain and not free from doubt for the reasons stated

above. For that reason, merely because plaintiffs did not challenge

the possession receipt or the panchanama soon after writ petition

was disposed of, by itself would not preclude the plaintiffs from

asserting their rights over the Suit Property.

13 In so far as impugned order in Second Appeal From

Order No.380 of 2021 in Second Suit is concerned, this Court is

constrained to observe that Deputy Collector (Demolition) and the

Competent Authority appointed under Section 3 of the Slums Act

overstepped its' jurisdiction by ignoring ad-interim order passed in

the First Suit by which, defendants (State) and plaintiffs were

directed to maintain status-quo in relation to Suit Property. Letter Shivgan

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dated 12th March, 2015 addressed by the authority to the

plaintiffs' advocate, submitting that interim order in the First Suit

would not bind him, being not party to the suit is nothing but

contemptuous approach. How could authority say, the ad-interim

order would not bind it, although it was binding on the State. In

any case, for want of Notification under Section 4, declaring the

Suit Property a Slum Area, respondents could not have proceeded

to verify the eligibility of the slum dwellers for their

rehabilitation. Even otherwise, at the material time when the

Slum Authorities proceeded with the public notice, order of the

trial Court in the First Suit directing the State and the plaintiffs to

maintain the status-quo in relation to the Suit Property, was in

force.

14 For the foregoing reasons, following is the order;

a. Appeal From Order No.376 of 2021 and Appeal From

Order No.380 of 2021, are allowed.

b. Impugned orders, dated 27th September, 2021, passed

in Notice of Motion No.1723 of 2015, in Long Cause Suit

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No.1421 of 2014 is quashed and set aside.

c. Impugned order dated 27th September, 2021, passed in

Notice of Motion No.934 of 2015, in Short Cause Suit

No.846 of 2015 is quashed and set aside.

d. Pending suit, respondents in both the suits are

restrained from obstructing plaintiffs' possession in the Suit

Land.

e. Pending Short Cause Suit No.846 of 2015, respondents

shall not proceed, with to implement Rehabilitation Scheme

on the Suit Land.

f. Having regard to facts of the case, learned Trial

Court, shall make an endeavour to dispose of both the suits

i.e., Long Cause Suit No.1421 of 2014 and Short Cause Suit

No.846 of 2015, expeditiously, and preferably on or before

31st May, 2023.

e. The trial Court shall decide the suits on merits,

without being influenced by the impugned order and this

order.

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f. Appeals are allowed and disposed of.

15 As the appeals itself are disposed of, nothing survives

in the applications therein and same are also disposed of.

(SANDEEP K. SHINDE, J.)

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