The acquiescence to surrender land for development rights without monetary compensation constitutes a valid acquisition under statutory provisions, upheld despite late challenges to possession.

JUDGMENT :

GAURI GODSE, J.

1. This second appeal is filed by the original plaintiff to challenge the concurrent judgments and decrees dismissing the suit for a declaration that the plaintiff has the right, title and interest and the authority to develop the suit property. The suit was filed with respect to the plot of land bearing Plot No. 14( part of old survey no.3) out of Survey No. 133, Hissa No. 5B, 6B, 7B (‘said land’). The plaintiff's prayer was for a declaration that the plaintiff (‘society’) has the right to develop the said plot and construct a commercial building in its capacity as the owner. The suit also prayed for a permanent injunction restraining the respondent (‘corporation’) from obstructing the lawful title of the society as owner and in possession, and the society’s right to develop the said plot and construct the commercial building. The second appeal is admitted by order dated 2^nd December 2005 on the following substantial question of law:

i) In the absence of any acquisition of the property belonging to the Appellant, under the provisions of Section 78 of the Bombay Provincial Municipal Corporation Act, 1949 and in the absence of any agreement under Section 77 (1), is the title of the Appellant divested on the basis of a possession receipt (Exh. 69)?

ii) Whether the Courts below were justified in dismissing the suit filed by the Appellant for a declaration and injunction in the absence of the title of the Appellant having been extinguished, either by the acquisition of the property or an agreement for the transfer of the property by the Appellant to the Respondents in a manner recognized by the provisions of the Bombay Provincial Municipal Corporation Act, 1949?

The plaintiff’s pleadings are summarised as follows:

2. The plaintiff is the cooperative housing society that purchased the land bearing Survey No. 133, Hissa No. 5B, admeasuring about 49 R, 6B, admeasuring about 33 R and 7B, admeasuring about 38 R by way of two sale deeds dated 26^th December 1967. Thus, the society claimed title and possession over the entire land, totalling about 1 hectare 20 R. After acquiring the aforesaid land, the society decided to divide the total land into a number of plots and to allot such plots to its respective members. Accordingly, the layout plan was approved, and plots were allotted to the members of the society. The open space in the layout was intended for persons who would carry out construction in accordance with the approved layout and was primarily reserved for a playground and a recreational area for the occupants. The open space comprising 10% of the net area of the land in the layout was for the benefit of the members. However, the corporation insisted on retaining 10% of the gross total area as open space. The reservation for the shopping centre was buildable by the persons entitled to carry out construction on the plot allotted, in accordance with the sanctioned layout.

3. The society raised an objection to a letter dated 9^th September 1968, issued by the corporation, calling upon the society to hand over the physical possession of the land admeasuring 12741 square feet, free of cost (equivalent to 10% of the layout area). The officers of the corporation used coercion to obtain a letter from the then office bearers of the society regarding the transfer of the area, to the extent of 12741 square feet, free of cost. The society had requested that the corporation sanction the plan without requiring the 1