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2013 Supreme(Bom) 91
High Court of Judicature at Bombay
ROSHAN DALVI
Umesh Jashbhai Patel & Others
Versus
Harishankar Ramchandra Mhatre & Others
CHAMBER SUMMONS NO. 735 OF 2012 IN SUIT NO. 5172 OF 2000
Decided on : 14-01-2013
For the Plaintiffs:S.S. Pakale a/w. Ms. Varsha Ubale a/w. H.C. Pimple, B.R. Zaveri, Advocates.
For the Defendants:D2, A.K. Dubey, D10, H. Toor a/w. D.A. Patil i/b S. K. Legal, Advocates.
Headnote:Maharashtra Regional and Township Planning Act, 1966 - Sections 21, 23, 26, 28, 30, 31, 43, 125 and 126(3) - Land Acquisition Act, 1894, Sections 6 to 9, 11, 12, 16 and 18 - Acquisition proceedings.
Once land acquired after following due legal process then acquisition proceedings not vitiated for neglect or fault of owner who accepts proceedings by acceptance of compensation. - 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.
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.
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 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 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.
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 acquiesced in the acquisition proceedings by accepting compensation, nor by his subsequent transferees.
1. This Suit is filed by 5 plaintiffs claiming to have purchased the suit 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 Nos.4 to 9 have filed separate written statements. Defendant No.10 is the real contesting defendant in the suit.
3. 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 party-defendant 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 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 wall to take a portion of the suit property for the construction of such DP road.
6. It is the case of the plaintiffs as well as defendant No.10 that these parties were in possession of th
