Once the land is acquired after following due legal process,
it is of no consequence that the owner who accepts the compensation does not
remain present to actually hand over possession of the land so acquired to the
Land Acquisition Officer. The proceeding cannot be vitiated for the neglect or
the fault of the owner who accepts the acquisition proceeding by the acceptance
of compensation. Any rights thereafter created by such owner in favour of any
other party would be vitiated.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 735 OF 2012
IN
SUIT NO. 5172 OF 2000
Umesh Jashbhai Patel & Ors.
Vs.
Harishankar Ramchandra Mhatre & Ors.
And
Municipal Corporation of Greater Mumbai
: MRS. ROSHAN DALVI, J.
: 4 JANUARY, 2013.
Citation;2013(2)ALL M R 582
ORDER
This Suit is filed by 5 plaintiffs claiming to have purchased the suit
1.
property from defendant No.1 who was stated to be the then owner of the suit
properties. The suit property is stated to be an open plot of land. The plaintiff
has sued for a number of reliefs from (a) to (t) being for declaration that certain
agreement, conveyance, lease deed, powers of attorney between the plaintiffs
and defendant No.1 are valid and subsisting and that certain agreement, sale
deed, powers of attorney between defendant No.1 and defendant Nos.4 to 9 are
null and void and not binding on the plaintiffs and for order for cancellation
and impounding of those documents. The suit is also for declaration that a
certain consent terms filed in another Court and is void and not binding on the
plaintiffs and for prosecution of defendant Nos.4 to 10 for perjury with regard
to those documents. The incidental reliefs are for executing the documents in
favour of the plaintiffs by defendant Nos.1, 2 & 3 or the officer of the Court and
for necessary injunctions against all the defendants against the transfer as also
against entering upon and carrying on construction on the suit property and for
mesne profits.
2.
Whereas the plaintiffs claimed to have executed agreements and
conveyance as also a lease deed with defendant No.1, 2 & 3, similar such
agreements are stated to have been executed by defendant No.1 in favour of
defendant Nos.4 to 9 and thereafter in favour of defendant No.10. The plaint is
stated to be reconstructed as the original plaint is stated to be lost/misplaced.
None of the documents relied upon by the plaintiffs is shown to be annexed to
the reconstructed plaint. Defendant No. 1, defendant No.10 and defendant
3.
contesting defendant in the suit.
Nos.4 to 9 have filed separate written statements. Defendant No.10 is the real
Defendant Nos.1 to 3, who are the owners of the suit property, have
not contested the suit at all as they have sold the suit property to the plaintiff as
also defendant Nos.4 to 9 who in turn have sold the suit property to the
developer, defendant No.10 who is the main contesting defendant.
4.
The applicant/MMC has taken out this Chamber Summons for
being made a partydefendant in the suit and for demolition of the GI sheet
compound wall on the suit property and for an order to take a portion of the
development plan road (DP Road) shown in the Development Plan (DP) for
development of 18.30 mtrs DP road inter alia on the suit plot of land. The DP
road is shown to be running on a part of the suit plot of the land across its
middle under CTS No. 14(part)/14E.
5.
It is the case of the MMC that the DP road was shown in the DP
pursuant to which the required lands were acquired by the Government on
behalf of the Municipal Corporation of Greater Mumbai (MMC) and an award
came to be passed and possession of those lands came to be given by the Special
Land Acquisition Officer (SLAO) under the Land Acquisition Act, 1894 (LAA) to
the MMC upon the MMC depositing the requisite amount of compensation
determined for the acquisition of suit plot of land as the acquiring body. It is
the case of the MMC that the requisite procedure was followed under the
Maharashtra Regional Town Planning Act, (MRTP) 1966 for the demarcation of
the DP road on the DP which came to be final. It is also its case that upon the
acquisition proceeding being undertaken as per the procedure established by
ig
law and the award being passed and possession being handed over by the
Government to the MMC, the land vested in the MMC. The MMC requires part
of the suit land where the DP road is demarcated for the purpose of
construction of the DP road and hence claims that it is a necessary party to the
suit and has applied for the mandatory reliefs of demolition of the compound
6.
wall to take a portion of the suit property for the construction of such DP road.
It is the case of the plaintiffs as well as defendant No.10 that these
parties were in possession of the suit property. Receiver was appointed and the
possession has not been handed over to the MMC so that the land has not
vested in the MMC. It is argued on behalf of the plaintiffs that though the
owner was to hand over possession, the possession received does not show the
signature of the owner showing the handing over of the possession despite the
claim of the MMC that compensation was paid to the owner. It is also the case
of the parties to the suit that they have not been paid compensation and hence
would not have handed over possession.
7.
It must be borne in mind that the suit plot is stated to be an open
plot of land. The aerial photographs of the suit plot produced by the MMC
shows essentially an open plot of land on the fringes of which certain
unauthorized hutments are erected. The photographs of the suit plot produced
by the plaintiffs also show essentially an open plot of land strewn with garbage,
Copy of the development plan shows the DP road horizontally
8.
parked vehicles and on a part of which are some hutments.
running across inter alia the suit property.
9.
In view of the objections to the Chamber Summons the
requirements of the process of law under the MRTP Act for demarcation of the
DP road and the LAA for acquiring the property on which the DP road is to be
ig
10.
constructed are required to be seen.
Chapter III of the MRTP Act deals with the preparation, publication,
submission and sanction of the DPs.
11.
Chapter VII of the MRTP Act deals with acquisition of land required
inter alia for a DP The land required for a DP is deemed to be needed for a
.
public purpose, the acquisition of which is to be made after publication of the
DP upon reservation of the public purpose by the appropriate authority to
acquire the land upon making an application to the State Government for such
purpose under the LAA for it to vest in the MMC as the Planning Authority. The
relevant parts of the relevant sections of the MRTP Act run thus:
21. Development Plan. (1) ............ every Planning Authority shall
carry out a survey, prepare an existing landuse map and prepare a
draft development plan for the area within its jurisdiction, publish a
notice in the Official Gazette and in such other manner as may be
prescribed stating that the draft development plan has been prepared
and submit the plan to the State Government for sanction.......
(B)
PROCEDURE TO BE FOLLOWED IN PREPARING AND
SANCTIONING DEVELOPMENT PLANS.
23. Declaration of intention to prepare Development plan. (1)
A Planning Authority shall, by a resolution make a declaration of its
intention to prepare a Development plan; and shall despatch a copy of
such resolution with a copy of a plan showing only the boundary of the
entire area proposed to be included in the Development plan to the
State Government...........
The Planning Authority or the said Officer, as the case may be, shall
also publish a notice of such declaration in the Official Gazette, and
also in one or more local newspapers in the prescribed manner, inviting
suggestions or objections from the public within a period of not less
than sixty days from the publication of the notice in the Official
Gazette.
(2) A copy of the aforesaid plan shall be open to the inspection of the
public at all reasonable hours at the head office of the Planning
Authority and Local Authority.
ig
26. [Preparation and publication of notice] of draft
Development plan. (1) .................. a Planning Authority or the said
officer shall, prepare a draft development plan and publish a notice in
the, Official Gazette and in such other manner as may be determined by
it stating that the Development plan has been prepared. The notice
shall state the name of the place where a copy thereof shall be available
for inspection by the public and that copies thereof or extracts
therefrom certified to be correct shall be available for sale to the public
at a reasonable price, and inviting] objections and suggestions within a
period of sixty days from the date of notice in the Official Gazette.........
(2) [The notice shall also state that copies of the following
particulars in relation to the Draft Development plan are also available
for inspection by the public and copies thereof, or extracts therefrom
certified to be correct.........
(i)
..............
(ii) maps, charts and a report explaining the provisions of
the draft Development plan;
(iia) map showing the planning units or sectors undesirable
till the Development Plan is revised;...........
28. Objections to draft Development plan.(1) .......... if any
person communicates in writing to the Planning Authority or the said
officer any suggestions or objection relating to the draft Development
plan, the Planning Authority or the said officer may, after considering
the report of the Planning Committee under subsection (2) and the
suggestions or objections received by it or him, modify or change the
plan in such manner as it or he thinks fit.
(2) The Planning Authority or the said Officer shall forward
all objections and suggestions received by it to a Planning
Committee...........
......... having special knowledge or practical experience of
matters relating to town and country planning or environment or
relating to both for consideration and report.
(3) The Planning Committee, shall on receipt of objections and
suggestions, make such inquiry as it may consider necessary, and give a
reasonable opportunity of being heard to any person including
representatives of Government departments who may have filed any
objections or made any suggestions in respect of the draft Development
plan, and after considering the same, the Planning Committee shall
submit its report to the Planning Authority..........
The draft Development Plan so modified shall be published in the
Official Gazette and in such other manner as may be prescribed, not less
than one month prior to the submission of the same to the State
government for sanction.
30. Submission of draft Development Plan. (1) The Planning
Authority or as the case may be, the said Officer shall submit the draft
Development Plan to the State Government for sanction within a period
of twelve months [from the date of publication of the notice in the
Official Gazette, regarding its preparation] under section 26.
31. Sanction to draft Development plan. (1) Subject to the
provisions of this section, and not later than one year from date of
receipt of such plan from the Planning Authority, or as the case may be,
from the said Officer, the State Government may, after consulting the
Director of Town Planning by notification in the Official Gazette
sanction the draft Development plan submitted to it for the whole area,
or separately for any part thereof, either without modification, or
subject to such modifications as it may consider proper........
43. Restrictions on development of land. After the date on which
the declaration of intention to prepare a Development plan for any area
is published in the Official Gazette [or after the date on which a
notification specifying any undeveloped area as a notified area, or any
area designated as a site for a new town, is published in the Official
Gazette,] no person shall institute or change the use of any land or
carry out any development of land without the permission in writing of
the Planning Authority.
125. Compulsory acquisition of land needed for purposes of
Regional Plan, Development plan or town planning scheme, etc.
Any land required, reserved or designated in a Regional plan,
Development plan or town planning scheme for a public purpose or
purposes including plans for any area of comprehensive development or
for any new town shall be deemed to be land needed for a public
purpose within the meaning of the Land Acquisition Act, 1894 (I of
1894).
126. Acquisition of land required for public purposes specified in
plans. (1) When after the publication of a draft Development plan,
any land is required or reserved for any of the public purposes specified
in any plan or scheme under this Act at any time the Planning
Authority, Development Authority, or as the case may be, any
Appropriate Authority may acquire the land,.......
(a)
.........
(b)
........
(c)
by making an application to the State Government for
acquiring such land under the Land Acquisition Act,
1894,
and the land (together with the amenity, if any, so developed or
constructed) so acquired under the Land Acquisition Act, 1894, shall
vest in the Planning Authority.
(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for the
public purpose ...........
.......... it may make a declaration to that effect in the Official
Gazette, in the manner provided in section 6 of the Land Acquisition
Act, 1894 (1 of 1894), in respect of the said land. ...........
(3) On publication of a declaration under the said section 6, the
Collector shall proceed to take order for the acquisition of the land
under the said Act; and the provisions of that Act shall apply to the
acquisition of the said land, .............
12.
Hence the preparation, submission and sanction of the DP is to be
as per procedure established under Chapter III of the MRTP The Planning
.
Authority is required to make a declaration of its intention to prepare a DP by a
resolution with a copy of the plan showing the boundary of the proposed area
to be included in the DP to the State Government and public notice of such
declaration in the Official Gazette and newspaper and invite suggestions and
objections from the public thereof and keep the plan open for inspection of the
public.
13.
Thereafter the Planning Authority is required to survey the land
and prepare a draft development plan. It has to publish a notice in the Official
The Planning Authority is thereafter required to publish a notice in
14.
Gazette and submit it to the State Government for sanction.
the Official Gazette inviting the objections and suggestions to the draft
development plan and offer for inspection of the public inter alia the map of the
draft development plan.
15.
If any person makes suggestions or objections, the Planning
Authority is required to forward them to the Planning Committee who may
make such inquiry upon giving reasonable opportunity of being heard to the
objector and submit a report to the Planning Authority who may modify or
modified in the Official Gazette.
The Planning Authority is then required to submit the DP to the
16.
change the DP upon such suggestions or objections and publish the DP so
State Government for sanction.
17.
The State Government may sanction the draft DP with or without
modification as it may consider proper.
18.
Hence when once the process of sanction of the draft development
plan is submitted to the State Government and the DP is sanctioned, it being for
a public purpose under Section 125 of the MRTP none can challenge the DP
,
.
Similarly none can change the use of the land or carry out any development of
the land under the development plan after the date on which an intention to
develop the land as a DP as published in the Official Gazette without the
permission of the Planning Authority, the MMC.
19.
When a land is needed for a public purpose the procedure under
the LAA would have to be followed for the acquisition of the land by declaration
in the Official Gazette under Section 6 of the LAA and the process of acquisition
being followed under the LAA. The relevant parts of the relevant sections of the
LAA runs thus:
ig
6.
Declaration that land is required for a public purpose. (1)..
.............. [when the] [appropriate Government] is satisfied that any
particular land is needed for a public purpose, a declaration shall be
made to that effect under the signature of a Secretary to such
Government or of some officer duly authorised to certify its
orders...........
(2) [Every declaration] shall be published in the Official Gazette,
[and in two daily newspapers circulating in the locality in which the
land is situate of which at least one shall be in the regional language,
and the Collector shall cause public notice of the substance of such
declaration to be given at convenient places in the said locality (the last
of the date of such publication and the giving of such public notice,
being hereinafter referred to as the date of publication of the
declaration), and such declaration shall state] the district or other
territorial division in which the land is situate, the purpose for which it
is needed, its approximate area, and where a plan shall have been made
of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is
needed for a public purpose as the case may be; and, after making such
declaration the [appropriate Government] may acquire the land in a
manner hereinafter appearing.
7.
After declaration, Collector to take order for acquisition.
Whenever any land shall have been so declared to be needed for a
public purpose, the [appropriate Government] or some officer
authorised by the [appropriate Government] in this behalf, shall direct
the Collector to take order for the acquisition of the land.
8.
Land to be marked out, measured and planned. The
Collector shall thereupon cause the land (unless it has been already
marked out under section 4), to be marked out. He shall also cause it
to be measured, and (if no plan has been made thereof), a plan to be
made of the same.
9.
Notice to persons interested. (1) The Collector shall then cause
public notice to be given at convenient places on or near the land to be
taken, stating that the Government intends to take possession of the
land, and that claims to compensation for all interests in such land may
be made to him.
(2) Such notice shall state the particulars of the land so needed, and
shall require all persons interested in the land to appear personally or
by agent before the Collector at a time and place therein mentioned
(such time not being earlier than fifteen days after the date of
publication of the notice), and to state the nature of their respective
interests in the land and the amount and particulars of their claims to
compensation for such interests, and their objections (if any) to the
measurements made under section 8. The Collector may in any case
require such statement to be made in writing and signed by the party or
his agent.
(3) The Collector shall also serve notice to the same effect on the
occupier (if any) of such land and on all such persons known or believed
to be interested therein, or to be entitled to act for persons so interested,
as reside or have agents authorised to receive service on their behalf,
within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no
such agent the notice shall be sent to him by post in a letter addressed
to him at his last known residence address or place of business.......
11. Enquiry and award by Collector. [(1)] On the day so fixed,
or any other day to which the enquiry has been adjourned, the
Collector shall proceed to enquire into the objections (if any) which any
person interested has stated pursuant to a notice given under section 9
to the measurements made under section 8, and into the value of the
land and [at the date of the publication of the notification under
section 4, subsection (1)], and into the respective interests of the
persons claiming the compensation, and shall make an award under
his hand of
(i)
the true area of the land;
(ii) the compensation which in his opinion should be allowed
for the land; and
(iii) the apportionment of the said compensation among all the
persons known or believed to be interested in the land, of whom,
or of whose claims, he has information, whether or not they have
respectively appeared before him:...........
12. Award of Collector when to be final. (1) Such award shall be
filed in the Collector's office and shall, except as hereinafter provided, be
final and conclusive evidence, as between the Collector and the persons
interested, whether they have respectively appeared before the Collector
or not, of the true area and value of the land, and apportionment of the
compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of
the persons interested as are not present personally or by their
representatives when the award is made.
16. Power to take possession. When the Collector has made an
award under section 11, he may take possession of the land, which
shall thereupon vest absolutely in the Government, free from all
encumbrances.
ig
18. Reference to Court. (1) Any person interested who has not
accepted the award may, by written application to the Collector, require
that the matter be referred by the Collector for the determination of the
Court, whether his objection be to the measurement of the land, the
amount of the compensation, the persons to whom it is payable, or the
apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection
to the award is taken:
Provided that every such application shall be made,
(a) ............... within six weeks from the date of the Collector's
award.
20.
This process of law for acquisition is under Part II of the LAA. The
land is to be declared to be required for public purpose. Hence, for acquiring
any land for construction of the DP road, the first requirement is for the
Government to publish a preliminary notification about need to use the land for
public purpose in the Official Gazette as well as newspapers and to give public
notice at convenient places in the locality and then to publish the required
declaration. The date of the publication of the preliminary notification shows
the intention of using the land for public purpose and the publication of the
declaration conclusively proves the public purpose.
21.
Thereafter the Collector is required to take an order of acquisition
as required under Section 126(3) of the MRTP Act.
22. The land would then be marked, measured and planned.
23. Notice is required to be given to the interested persons at
convenient places near the land to state the nature of their interest in the land,
the claims made by them to compensation for such interest and the objections,
24.
if any, and to make a written statement.
The collector would then inquire into the objections and pass the
25.
necessary award.
The award of the Collector would become final, the notice of which
is to be given by the Collector to the persons interested but not present.
26.
Upon the collector having made the award, he would be entitled to
take possession of the land, which shall thereupon vest absolutely in the
27.
ig
government, free from all encumbrances.
Any person interested who has not accepted the award may, within
6 weeks require the Collector to refer the award for the determination of the
Court with regard to any objection he may have for measurement or
28.
compensation.
The aforesaid is the procedure established by law for acquisition of
land for a DP
. Once that procedure is followed under the MRTP as also the LAA,
there can be no legal objection to the development of the road which is a public
purpose. In such circumstances private interest, if any, must yield to public
purpose. The purpose of acquisition of land required for construction of a DP
road is deemed to be a public purpose and must be clothed with the incidents of
a public purpose from the fact of it being a part of the DP
. Hence when a land is
reserved for a DP
, its acquisition follows as a matter of course. Once the process
of acquisition is followed, the land can be used for nothing except that DP It
.
would accordingly vest in the Planning Authority, the MMC which would be
enjoined to construct such road. All that the Government has to do is to have
the DP prepared, submitted and sanctioned and then to have the land acquired.
29.
It is not disputed that the procedure under the MRTP Act was
followed and the land falling under the draft DP and the sanctioned DP came to
be so treated under the aforesaid provisions of the MRTP Act. It is, therefore,
undoubted that the part of the suit land was reserved for a DP and the
procedure under the MRTP Act was followed. Neither the plaintiff nor the
defendants have raised any objection or made any suggestion for modification
of the DP
. The portion of the suit land to be used for the DP was required to be
and was sought to be acquired as per the mandate contained in Section 126 of
the MRTP Act. It is not disputed that the award came to be passed and became
final in respect of part of the suit land under Sections 11 & 12 of the LAA.
All that is stated is that the possession of the land was not given to
ig
30.
the SLAO by the original owner, defendant No.1. The letter of possession is
sought to be relied upon to show that the signature of the original owner is not
put thereon. However the applicant as the Planning Authority has taken
possession of the suit land from the SLAO. Since the Collector is required to
take possession of the land, it is argued that that should have been from the
original owner or the parties in possession. The plaintiff as also defendant
No.10 claim to be in possession of the suit land which is an open plot of land. It
is for them to show that it was in their possession. Mr. Pakale has rightly argued
that since the suit land is an open plot of land, possession follows title. The title
is admittedly in defendant No.1 who is the original owner. It, therefore, follows
the possession of the suit land would be with defendant No.1 unless it is shown
to be in the actual possession of either the plaintiffs or defendant No.10. It
would be for the plaintiff as also defendant No.10 to prove their title in the suit.
Neither the plaintiffs nor the defendant No.10 has shown the Court its actual
possession. The photographs show a land which is merely open and encroached
upon on some fringes. Despite the agreements, conveyance or lease deeds of
1980 in favour of the plaintiffs or defendant Nos.4 to 9 or thereafter defendant
No.10 the suit land has not yet been developed or used. The photographs of the
parties are eloquent on this aspect.
31.
Mere documents executed by private parties in favour of certain
persons and later others would not show possession having changed hands until
the case of the parties is proved on evidence in the face of the DP road running
through the suit land which has been acquired by the Government for such
purpose.
32.
It may be mentioned that the plaintiffs as also defendant No.10
who contend that they have sought to develop the land should have and are
taken to have seen, investigated and inspected inter alia the DP remarks from
the Planning Authority at the time of the commencement in development
ig
alleged by them. Mere filing of the suit and having the Court Receiver
appointed between private parties cannot prove or show possession of both such
parties in the suit property. The procedure established by the aforesaid laws
having been undertaken cannot be undone. Unless it is proved that possession
was handed over to the plaintiffs or defendant Nos.4 to 9 by the original owner,
defendant No.1, possession must be deemed to be continued with him.
Defendant No.1 is not shown to have claimed possession or agitated for it upon
or after the acquisition of the land. Hence if defendant No.1, as the owner, does
not complain about the DP running through his land and does not challenge the
acquisition for the construction of the DP and does not physically hand over
possession but yet does not challenge the procedure, the possession would
naturally be taken unopposed by the SLAO/Collector and must be deemed
to have been so done thus completing the process under Section 16 of
the LAA. Consequently upon there being no challenge to the acquisition,
possession having been deemed to be taken by the SLAO, the land must be
taken to have vested absolutely in the Government on that date free from the
encumbrances of the parties to the suit who also allowed it to be taken
unopposed. Further the parties to the suit as the transferee of defendant No.1
who was the owner and in possession prior to their transaction must be imputed
knowledge of the preparation, publication and sanction of the development
plan as also the declaration of the State Government to acquire the land for
construction of the DP road as per the DP
.
33.
In view of the contention on behalf of the defendant Nos.1 to 3 as
also defendant No.10 claiming to be in continuous possession of the acquired
premises and claiming that such possession was not taken from them, the Court
deemed it fit to call for and go through the papers and proceedings of
acquisition. It is important to note that under Section 12 of the LAA the award
filed in the Collector’s office would be final and conclusive evidence between
ig
the Collector and all the persons interested whether or not they appeared before
the Collector with regard to the area as also the value of the land and the
interested persons.
The papers of the acquisition were produced before this Court. The
34.
compensation paid so that the Collector can take possession from such
initial notification under Section 126(1) of the MRTP Act read with Section 6 of
the LAA is published in the Official Gazette dated 15 th September, 1981. The
papers and proceedings of the award passed under Section 11 of the LAA with
regard to the said notification show inter alia the suit land under CTS No. 14
(part) admeasuring 1239 sq. mtrs. owned by defendant No.1 and acquired for
56 ft. wide D.P
. Road. The proceedings show that after the publication of the
aforesaid notification, a general notice under Section 9 of the LAA was
published on the office board of the Additional Collector, BSD, Tahasildar,
Borivali in the Talathi’s office and on the site. Individual notices under Section
9 of the LAA were served on the owners. The owners of the land verified the
City Survey records. The records were enumerated showing inter alia the suit
land of the above measurement against the name of defendant No.1. The
claims of the parties were also mentioned in the acquisition proceeding.
Consequently the claim of defendant No.1 for the suit land was Rs.450/ per sq.
mtrs. and/or FSI benefit. Instances cited by the land owners have been
enumerated. The papers further show that taking the instances into
consideration the SLAO, BSD accepted the valuation inter alia of the suit land at
the rate of Rs.190/ per sq. mtrs. The suit land is shown in the award for such
purpose at serial No.1.
35.
The award further mentions that possession of the land under
acquisition would be taken after declaration of the award and same would be
handed over to the acquiring body. The SLAO worked out the details of the
valuation inter alia for the suit land at the rate of Rs.190/ per sq. mtrs. for
1239 sq. mtrs. of the land acquired under CTS No. 14 part at Rs.2,35,410/
ig
adding thereto 30% solatium of Rs.70,623/ and 12% component under Section
23(1)/Section 15(a) of the amended LAA of Rs.1,38,782.25 at a total amount of
Rs.4,44,815/. Consequently in the Award declared for total 7,987.4 sq. mtrs.
of land for total consideration of Rs.25,75,230/. Compensation of
36.
Rs.4,44,815/ is shown against the name of defendant No.1.
The papers of acquisition further show a Power of Attorney
executed by defendant No.1 on 13 th August, 1982 signed by defendant No.1
before a Notary Public and identified by his attorneys appointing the plaintiff as
the partner of M/s. Geometrical Tools Manufacturing Co. (India) as his
Constituted Attorney. A panchnama prepared on 16.09.1986 shows inter alia
the suit land against defendant No.1. The papers of acquisition further show
the panchnama made by 5 panchas on 19.09.1986 showing that the owners of
the land mentioned therein were not present and in their absence their officer
took possession of their land and handed them over to the Junior Engineer of
the MMC (which was the acquiring body). Inter alia is the land of defendant
No.1, he not being present.
37.
However thereafter defendant No.1 through his Constituted
Attorney, plaintiff No.1 herein has accepted the cheque for the compensation
amount of the suit land under CTS No. 14 part admeasuring 1239 sq. mtrs.
which came to be acquired. A cheque for Rs.4,35,480/ bearing No. 1176880
dated 05.09.1986 came to be issued to defendant No.1 and was accepted by
plaintiff No.1 on his behalf for which plaintiff No.1 executed the receipt on
22.10.1986 as the Constituted Attorney of defendant No.1.
38.
Mr. Zaveri on behalf of Plaintiff Nos.1, 2 and 3 upon being shown a
acquisition proceedings and upon taking instructions from Plaintiff No.1 who is
present in Court fairly concedes that Plaintiff No.1 has indeed signed the receipt
of the payment of compensation of Rs.4,35,000/ on behalf of defendant No.1
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as his Constituted Attorney. Yet it is argued on behalf of the Plaintiff Nos.1, 2
and 3 that since possession was not taken from defendant No.1 or Plaintiff
Nos.1, 2 and 3 the land did not vest in the government and could not have been
given to the MMC as the acquiring body. The argument with regard to the
possession is wholly misconceived. After accepting compensation from the
government, the owner would have no interest in the land. In this case Plaintiff
No.1 has received compensation on behalf of the then owner, defendant No.1.
Defendant No.1 has thereafter transferred the land to defendant No.10.
Defendant No.1 was never in possession. He had handed over possession to
Plaintiff Nos.1, 2 and 3 thereafter purportedly to defendant No.10. Merely
because defendant No.1 was not present, neither he nor his CA can take
advantage of the fact that he had not actually hand over possession to the
government.
39.
Mr. Zaveri drew my attention to the judgment in the case of
Balwant Narayan Bhagde Vs. M.D. Bhagwat and Ors., AIR 1975 Supreme
Court 1767, in which it is held that symbolic possession cannot be taken of any
acquired land and possession that kind of taking over possession is not
contemplated under LAA.
40.
Mr. Zaveri also relied upon the judgments of this Court in the case
of Fazalabhai Ibrahim Co. Ltd. Vs. Land Acquisition Officer, 2 Mh.L.J. 2012,
in which also it has been held that when actual possession was not taken, the
land did not vest in the government. In that case the acquisition as also
compensation fixed thereunder came to be challenged. Part of the land which
was sought to be acquired was actually not acquired. Acquisition of land was
not withdrawn. That land was not released to the claimants. However, the
possession letter excluded that land. Consequently in Paragraph 3 of the
judgment it is held that under those circumstances when actual possession was
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not taken and the land was not acquired, that land did not vest in the
government. The case is, therefore, wholly distinguishable. In that case the
land was not acquired, award in that regard has not been passed and that land
was not shown in the possession letter. Such land cannot vest in the
government. In fact such land had to be released to the claimants and the
41.
acquisition in respect thereof had to be withdrawn.
In this case possession of the land which was sought to be acquired
for the construction of the DP road was taken under the possession letter relied
upon by the applicant/MMC/acquiring body. The possession letter under the
panchnama shows the actual possession taken. Such actual possession may be
actually handed over by the owner or the occupant of the land or may be
actually taken by the government in the absence of the owner or the occupant.
Taking of the actual possession is unmistakable. Such taking vests land in the
government and the owner or the occupant thereafter cannot take advantage of
his own absence at the time the possession of the land was sought by the SLAO.
42.
Hence once a notification is published in the official gazette it
tantamounts to notice upon the persons interested in the property. Once that
notice is given, the omission to give notice to the subsequent owner of the
property does not vitiate the enquiry and consequently the acquisition
proceedings. [See Nandatai Vs. State of Maharashtra, (1996) 6 Supreme
Court Cases 407] in which case after notice was given to the owner, his
daughterinlaw who lived with the owner mutually divorced. In the family
settlement the daughterinlaw was given the property sought to be acquired.
She claimed that she was not given notice. In that case enquiry under Section
5(A) of the Act was also to be undertaken. Her claim was negatived as she
became the owner subsequently. It was held that the enquiry proceedings could
not have been vitiated because she was not given notice again.
In the case of Balmokand Khatri Educational & Industrial Trust,
ig
43.
Amritsar Vs. State of Punjab and Ors., (1996) 4 SCC 212, the mode of taking
possession was considered thus:
44.
It is now wellsettled legal position that it is difficult to take physical
possession of the land under compulsory acquisition. The normal mode of
taking possession is drafting the panchnama in the presence of panchas and
taking possession and giving delivery to the beneficiaries is the accepted mode
of taking possession of the land. Subsequent thereto, the retention of
possession would tantamount only to illegal or unlawful possession.
In this case after the acquisition proceedings were completed by the
SLAO, possession was handed over to the MMC as the acquiring authority so
that the land vested in the MMC. As defendant No.1 as also his Constituted
Attorneys, plaintiff Nos.1 & 2 remained absent, physical possession was actually
not handed over by defendant No.1 as the owner. Yet his retention of
possession itself become illegal and unlawful and consequently transfers by him
suffered from the same malady. Hence the acquisition proceedings which are
conclusive evidence of what transpired show possession of the land acquired
from defendant No.1 lawfully taken after payment of lawful consideration
which was accepted by plaintiff No.1 on behalf of defendant No.1, the original
owner. The acquired land, therefore, vested in the Government free from all
encumbrances of the plaintiffs or defendant No.10, it having been acquired for
the applicant, MMC.
Consequently the papers and proceedings of acquisition showing
45.
the award, which is final and conclusive evidence, shows that due legal process
under the MRTP Act and LAA were followed and the compensation was granted
to defendant No.1 and collected by plaintiff No.1. It, therefore, does not matter
that defendant No.1 or plaintiff Nos.1 to 3 or defendant No.10 were not present
and had not handed over possession of the suit land part of which came to be
lawfully acquired. Once the land is acquired after following due legal process,
it is of no consequence that the owner who accepts the compensation does not
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remain present to actually hand over possession of the land so acquired to the
Land Acquisition Officer. The proceeding cannot be vitiated for the neglect or
the fault of the owner who accepts the acquisition proceeding by the acceptance
of compensation. Any rights thereafter created by such owner in favour of any
46.
other party would be vitiated.
In this case defendant No.1 through plaintiff No.1 himself accepted
compensation. Both these parties were not present at the time of possession
had to be taken. In their absence possession of the land was given by the SLAO
to the acquiring body. Plaintiff Nos.1 to 3 as also defendant No.1 who were
parties to the initial transaction, for which declaration of the validity was sought
in the suit, were concerned with and actually partook in the acquisition
proceeding. Thereafter defendant No.1 has sought to sell the same land earlier
owned by him and to which he had no title after acquisition to defendant
No.10. The sale has no validity in law. Such sale is effected by a party having
no title. Due diligence was required on the part of defendant No.10 at the time
defendant No.10 sought to purchase the suit land from defendant No.1. If
defendant No.10 has sought to purchase the property without those minimum
requisites of ascertaining the title, defendant No.10 would not acquire legal
rights thereto. Possession of any of these parties thereafter is of no
consequence. The rights, if any, of the original plaintiff No.4 would follow
plaintiff Nos.1, 2 & 3.
In the case of S. Prabh Singh Dhillon & Ors. Vs. Hoshiarpur
47.
Improvement Trust & Ors. (1996) 1 SCC 309 it was held that after the
possession is taken if the owner continues in possession he would not be
entitled to interest on the compensation paid. In that case also possession was
taken upon the award much as in this case under the letter of possession.
Actual possession remained with the owner and interest was claimed. It was
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held that the owner was not entitled to such interest.
48.
Consequently neither plaintiff Nos.1 to 3 not plaintiff No.4 nor
defendant Nos.1 to 3 nor defendant Nos. 4 to 9, nor defendant No.10 can claim
to be in possession of the acquired premises, nor claim any right, title or interest
to the land so acquired. The public purpose of making a 56' D.P
. Road cannot be
frustrated by a party who acquienced in the acquisition proceedings by
accepting compensation, nor by his subsequent transferees.
49.
50.
Hence Chamber Summons has to be made absolute as prayed.
The applicant/MMC must, therefore, be held to be entitled to
demolish the GI sheet compound wall on the suit property and construct the DP
road for public purpose.
51.
There is no objection to the MMC being made a party defendant in
the suit. It is seen to be a proper party to the suit a part of the suit property
having vested in it.
52.
Hence the Chamber Summons is made absolute in terms of prayer
clauses (a) & (b). The plaintiff Nos. 1 to 3 shall carry out the necessary
amendments within 2 weeks in the plaint and in the copies of the plaint served
upon all the defendants including the newly added defendants as per the order
in another Chamber Summons passed earlier. All the defendants shall file their
written statements within 30 days of the amendments being carried out in their
copies or served upon them. The MMC shall be entitled to demolish the GI
sheet compound wall on the suit property and construct the DP road thus
serving the public purpose.
Chamber Summons is disposed of accordingly.
54. This order is stayed for 2 weeks.
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53.
(ROSHAN DALVI, J.)
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