Bombay High Court
Kanaiyalal Pushotamdas Shah And Ors vs Mumbai Metropolitan Region ... on 8 January, 2024
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2024:BHC-AS:719
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2738 OF 2019
IN
FIRST APPEAL NO. 423 OF 2003
Mumbai Metropolitan Region Development
Authority, Bandra, Mumbai .... Applicant
In the matter between :-
Nirmala Ramdas Pandey and ors. .... Appellants
v/s.
Kanaiyalal Purushottam Shah and Ors. ..... Respondents
WITH
INTERIM APPLICATION NO. 2821 OF 2021
IN
FIRST APPEAL NO. 423 OF 2003
Kanhaiyalal Purshottamdas Shah
and ors. .... Applicants
In the matter between :-
Nirmala Ramdas Pandey and ors. ..... Appellants
v/s.
Mumbai Metropolitan Region Development
Authority, Bandra and ors. .... Respondents
Mr. S.N. Vaishnav with Ms. N.J. Mukherjee and Mr. Vipul Shukla for the
Applicants in IA/2821/2021 and for the Respondent Nos.1,2,4,7,8 and 11 in
IA/2738/2019.
Mr. Saket Mone a/w. Mr. Devansh Shah and Ms. Srushti Thorat i/b. M/s.
Vidhi Partners for Respondent No.1 - MMRDA and for the Applicants in IA/
2738/2019 and for the Respondents in IA/2821/2021 .
Mr. A.R. Patil, AGP for the State.
Mr. S.K. Dhekale, Court Receiver, High Court, Bombay.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 8th JANUARY, 2024.
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
P. C. :-
. By this Order, I propose to dispose of :-
(i) Interim Application No.2738/2019 filed by the MMRDA in a disposed of
First Appeal No.423/2003 seeking discharge of Court Receiver in respect of
land admeasuring 62.39 sq. meters bearing CTS No.458 (part), land
admeasuring 738.18 sq. meters bearing CTS No.442/A/3/E of Village Pahadi,
Goregaon and ;
(ii) Interim Application No.2821/2021 filed by the Respondent in the said
Appeal seeking (a) payment of Rs.1,34,72,400/- being part of the amount
deposited by MMRDA with the Court Receiver, pursuant to the order dated
10/02/2020 along with accrued interest thereon, (b) Interest @ 17% p.a. on an
amount of Rs.1,34,72,400/- from 17/02/2020 till the date of payment, (c)
directions against MMRDA to pay the balance amount of Rs.23,80,042/-
payable as per order dated 10/02/2020 with interest @ 18% p.a. till the date of
payment.
2. The brief facts necessary to decide these Applications are as under :-
3. The Applicants - Kanhayalal Shah and others (Respondent Nos.1 to 11
in First Appeal No.423/2003) had filed Civil Suit No.1173/1971 for
declaration and permanent injunction alleging that the Defendants-
Dayashankar Mishra and Tarachand Mishra (Respondent Nos.12 and 13 in
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
First Appeal No.423/2003) had encroached on the portion of the suit property
admeasuring 28427.40 sq.meters surveyed under Old Survey Nos.92, Hissa
No.4(part), 118 Hissa No.(part) and 120 Hissa Nos.3, 4 and 5 of village
Pahadi, Borivali, Greater Bombay. During the pendency of the suit, the
Court Receiver was appointed, who was directed to take symbolic possession
of the encroached portion of the suit property. Later, by judgment dated
15/04/1997, the said suit came to be decreed in favour of the
Applicants/Plaintiffs. The said judgment has been confirmed by this Court as
well as by the Hon'ble Supreme Court.
4. The Applicants/Plaintiffs sought to execute the decree by filing
Execution Application No.102/1999 and filed Chamber Summons
No.397/1999 seeking directions to the Receiver to take physical possession of
the encroached land. The tenants/occupants of the structures in the suit
property filed Chamber Summons No.137/2001 claiming independent right in
the subject premises and opposed execution of the decree.
5. The chamber summons filed by the tenants/occupants came to be
dismissed vide order dated 16/07/2002. Being aggrieved by the said order,
the tenants/occupants filed an Appeal being First Appeal No.423/2003 which
came to be dismissed on 26/11/2018 for want of prosecution under Order 41
Rule 17 of CPC. While dismissing the said Appeal, this Court directed the
Court Receiver to take physical possession of the suit property and handover
the same to the Applicants/Plaintiffs in accordance with law.
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
6. The judgment and decree dated 23/08/2019 having attained finality and
the appeal against the dismissal of chamber summons filed by the
obstructionist having been dismissed, the Applicants/Plaintiffs were entitled
for possession of the suit property. However, the records indicate that
MMRDA, who was not a party to the appeal, filed an Interim Application
No.2738/2019 in a disposed of appeal contending that the land admeasuring
62.39 sq. meters from CTS No.458 (part) (Old Survey No.120/5) and land
admeasuring 738.18 sq. meters from CTS No.442/A/3/E (Old Survey
No.120/3) of Village Pahadi, has been acquired vide order dated 23/08/2019.
The MMRDA sought discharge of the court receiver in respect of the said
land.
7. On 29/01/2020, in the course of the hearing, learned counsel for the
MMRDA and the Applicants/Original Plaintiffs made a statement that the
portion of the acquired land, which was the subject matter of the Interim
Application could be demarcated in presence of the parties and the Court
Receiver. Accordingly, this Court by order dated 29/01/2020, directed the
Surveyor from the office of the MMRDA to carry out physical demarcation in
presence of the parties and directed the Court Receiver to submit a report.
Pursuant to the said order, the Court Receiver submitted the report dated
04/02/2020 stating that the property was measured and demarcated in
presence of the parties.
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
8. Pallavi Tabhane, working as Tahsildar and authorized signatory of
MMRDA filed her affidavit stating that the acquired land was demarcated and
as per the demarcation, an area admeasuring 594 sq. meters was acquired
from CTS NO. 442/A/3/1/E and an area of 46.25 sq. mts was acquired from
CTS No.458. She has stated that portion of land admeasuring 136.25 sq. mts
from CTS No. 442/A/3/1/E which is also required for the project was already
acquired by PWD for the purpose of construction of Western Express
highway vide award dated 05.11.1963, and that an amount of Rs.614.57 was
already paid to Ishwarbhai B. Patel, the owner of the said acquired portion of
the land.
9. The records, particularly the Order dt.10.02.2020 reveals that the
learned counsel for MMRDA had made a statement that an amount of
Rs.6,33,07,920/- would be paid to the Applicants/Plaintiffs without prejudice
to its rights and contention for seeking possession of the acquired land
admeasuring 594 sq. meters of plot bearing No.442/A/3/1/E and 46.25 sq.
meters of land from plot no.458 (part). Learned counsel for the MMRDA
further stated that an area admeasuring 136.25 sq. meters from Plot
No.442/A/3/1/E was already acquired by the State Government. The
MMRDA sought possession of the said portion of the land and made a
statement that it is willing to deposit an amount of Rs.1,58,52,442/- in respect
of the said land, though it is not liable to pay the said amount. It was stated
that the MMRDA would approach the State Government in respect of the said
payment.
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
10. In view of the said statement, this Court directed the MMRDA to
release an amount of Rs.6,33,07,920/- in favour of the Applicants/plaintiffs
with further directions to MMRDA to deposit an amount of Rs.1,58,52,442/-
without prejudice to the rights and contentions of both the parties. This Court
directed that upon receipt of payment of Rs.6,33,07,920/-, the Court Receiver
shall stand discharged in respect of the land admeasuring 594 sq. meters from
CTS No. 442/A/3/1/E and 46.25 sq. meters from CTS No.458 (part), and
directed the Receiver to hand over possession of the said land to MMRDA as
per demarcation at site. It was stated that in view of the above, the
Applicants/plaintiffs would not challenge validity of the Award.
11. As regards area admeasuring 136.25 sq. meters from CTS
No.442/A/3/1/E, the Court directed that the Court Receiver shall stand
discharged in respect of the said area upon deposit of Rs.1,58,52,442/- in the
Court. Liberty was granted to the Applicants/plaintiffs to apply for
withdrawal of the said amount. The parties were put to notice that the request
for withdrawal of the amount would be considered after hearing the counsel
for the parties and the State Government.
12. Pursuant to the said order, the MMRDA paid to the
Applicants/plaintiffs an amount of Rs.6,33,07,920/- and MMRDA has been
put in possession of land admeasuring 594 sq. meters from CTS No.
442/A/3/1/E and 46.25 sq. meters from CTS No.458 (part), and the Court
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
Receiver has been discharged in respect of the said land.
13. The Applicants/plaintiffs filed the application ( IA No. 2821 of 2021)
raising a grievance that instead of depositing an amount of Rs.1,58,52,442/-,
the MMRDA had deposited only an amount of Rs.1,34,72,400/- in respect of
the area admeasuring 136.25 sq. meters from CTS No.442/A/3/1/E. The
Applicants/plaintiffs further contended that the State Government had not
raised any claim in respect of the said land and hence claimed that they are
entitled to withdraw the amount of Rs.1,34,72,400/- and sought further reliefs
as stated above.
14. Mr. Sameer Kurtkoti, the Additional Collector - 1, Metro filed his
additional affidavit that the Award dated 23/08/2019 was in respect of the
total area admeasuring 800.57 sq. meters i.e., land admeasuirng 738.18 sq.
meters from land bearing CTS No.442/A/3/1/E and land admeasuring 62.38
sq. meters from CTS No.458 and the total compensation in respect of the said
land was fixed at Rs.7,91,60,362/-. He has stated that the demarcation carried
out as per the order of the Court revealed that the actual land required for the
said project was 640.25 sq. meters i.e., an area of 594 sq. meters from CTS
No.442/A/3/1/E and 46.25 sq. meters from CTS No.458 and that the
compensation payable in respect of the said land was Rs.6,33,07,920/-.
15. The Additional Collector has further stated that the actual amount
payable in respect of the said area was Rs.1,34,72,400/- and not
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
Rs.1,58,52,442/- as erroneously stated before the Court on 10/02/2020. He
has stated that land admeasuring 136.25 sq. mts from CTS No.442/A/3/1/E
was already acquired by the PWD Department for the purpose of construction
of Western Express Highway, and hence the Applicants/plaintiffs are not
entitled to receive the said amount.
16. There is no dispute about the area of the land acquired by the
MMRDA. It is also not in dispute that the MMRDA has already paid to the
Applicants/plaintiffs an amount of Rs.6,33,07,920/- in respect of land
admeasuring 62.39 sq. meters from CTS No.458 Part and 738.18 sq. meters
from CTS No.442 A/3/1/E and the Receiver has already handed over
possession of the said land to the MMRDA and the Receiver has been
discharged in respect of the said land.
17. The dispute is relating to payment of compensation in respect of land
admeasuring 136 sq. mtrs from CTS No. 442/A/3/1/E. The MMRDA has
questioned the entitlement of the Applicants/plaintiffs to receive
compensation in respect of the said portion of the land on the ground that the
said land was already acquired by the Government. The State Government
had not claimed right in respect of the said land at any point of time. As
noted above, the suit was decreed in favour of the Applicants/plaintiffs and by
order dated 26/11/2018 in First Appeal No.423 of 2003, the Court Receiver
was directed to handover physical possession of the suit property to the
Applicants/plaintiffs. The Applicants/plaintiffs were therefore entitled for
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
possession of the suit property including the said portion of land admeasuring
136.25 sq. mtrs. It was only in view of the application filed by the MMRDA
that this Court with consent of the parties had directed demarcation of the
land acquired by MMRDA and despite order dated 26.11.2018 this Court
directed the Court Receiver to put MMRDA in possession of land
admeasuring 136.25 sq. mtrs., on deposit of compensation before the Court.
Pursuant to the said order, the Court Receiver has put MMRDA in possession
of the said portion of land, and stands discharged in respect of the said land.
In such circumstances, having taken possession of the land admeasuring
136.25 sq. mtrs from the Court Receiver, the MMRDA cannot be prima facie
absolved of its liability to pay the compensation to the Applicants/plaintiffs in
respect of the said land.
18. The issues raised by the MMRDA as well as by the State Government
in Interim Application No.1 of 2019 have absolutely no nexus with the issues
involved in the appeal and cannot be adjudicated in this interim application
filed in a disposed of appeal. As regards the claim of the Applicants/plaintiffs
for the balance amount of Rs.23,80,042/-, the MMRDA has explained that the
actual amount payable towards the area of 136.25 sq mtrs. is 1,34,72,400/-
and that the statement that the amount of Rs. 1,58,52,448/- would be
deposited was made in view of erroneous calculation. Needless to state that
it is not within the domain of this Court to decide whether the MMRDA is
liable to pay the balance amount of Rs.23,80,042/-, or whether the
Applicants/Plaintiffs are entitled for any interest on the amount of
P.H. Jayani/ Salgaonkar IA2821.2021 IN FA.doc
Rs.1,34,72,400/- or the balance amount of Rs.23,80,042/-. The issues raised
by the MMRDA/ State Government as well as by the Applicants/plaintiffs
need to be adjudicated in appropriate proceedings and not in these interim
applications filed in a disposed of appeal.
19. Under the circumstances, the Court Receiver is directed to pay to the
Applicants/plaintiffs an amount of Rs.1,34,72,400/- with interest accrued
thereon. All the points and contentions relating to previous acquisition of the
land by the State Government as well as entitlement of the
Applicants/plaintiffs for additional amount of Rs.23,80,040/- and interest as
prayed are specifically kept open with liberty to the State Government/
MMRDA and the Applicants/plaintiffs to raise the said issues in any other
appropriate proceedings. Payment/ receipt of Rs.1,34,72,400/- shall be
subject to the order passed, if any, in such proceedings.
20. Both the applications stand disposed of in above terms.
21. Learned Counsel for the MMRDA seeks stay of six weeks to enable
them to challenge the order before the Hon'ble Supreme Court. The
Receiver to defer payment of the amount of Rs.1,34,72,400/- for a period of
six weeks.
(SMT. ANUJA PRABHUDESSAI, J.)
