-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1855 OF 2001 1. Smt. Leela Bhagwansingh Advani ) adult, Occ. Business, residing at 6/65, Shyam Niwas ) Co-operative Housing Society, Bhulabai Desai Road, ) Mumbai. ) 2. Anil Bhagwansingh Advani, ) adult, Occ. Business, residing at 6/65, Shyam Niwas ) Co-operative Housing Society, Bhulabai Desai Road, ) Mumbai. ) 3. Smt. Aruna Bhagwansingh Advani, ) adult, Occ. Business, residing at 6/65, Shyam Niwas ) Co-operative Housing Society, Bhulabai Desai Road, ) Mumbai. )..Petitioners versus 1. State of Maharashtra ) (Summons to be served on the learned Additional ) Government Pleader, High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ) 2. The Divisional Commissioner, Kokan Division, ) Kokan Bhavan, Mumbai. ) (Summons to be served on the learned Additional ) Government Pleader, High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ) 3. The Special Land Acquisition Officer, ) Maharashtra Housing Development Board, ) Old Custom House, Mumbai. ) (Summons to be served on the learned Additional ) Government Pleader, High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ) -2- 4. Collector of Mumbai ) (Summons to be served on the learned Additional ) Government Pleader, High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ) 5. Defence Estate Officer ) (Summons to be served on the learned ) Government Pleader, appearing for the ) Central Government viz. Union of India ) High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ) 6. Union of India ) (Summons to be served on the learned ) Government Pleader, appearing for the ) Central Government viz. Union of India ) High Court, Original Side ) appearing for State of Maharashtra under Order ) XXVII, Rule 4 of the Code of Civil Procedure, 1908 ).Respondents Mr. A.V. Anturkar with Ms. Rutuja Joshi and Mr. B.S. Bhesania, instructed by M/s. Mulla & Mulla & Cragie Blunt and Caroe, for the petitioners. Mr. M.D. Naik, Assistant Government Pleader, for respondent Nos. 1 to 4. Mr. G.N. Srinivasan with Mr. G. Hariharan for respondent Nos. 5 and 6. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: 17 th June, 2009 ORAL JUDGMENT: (Per P.B. Majmudar, J.) By way of this petition, the petitioners have knocked the doors of this Court with a prayer that the respondents may be directed to release the amount -3- payable to the petitioners in pursuance of the Award dated 30th May, 1995 passed by the Special Land Acquisition Officer, respondent No. 3. 2. The subject matter of the property is plot Nos. 50 and 51, Worli Hill, Mumbai, admeasuring 3154 sq.yds. By way of a lease agreement dated 29th November, 1941 executed between the predecessor in title of the petitioners and the Governor General in Council, the suit property was given on lease with effect from 15th June, 1941, during the period of second world war and for a period of six months thereafter. A copy of the said lease agreement is at Exhibit- A to the petition. The property was taken on lease by the Defence Department of the Government of India. It is not in dispute that even though in the lease documents it is provided that the lease shall continue during the period of second world war and six months thereafter, the department continued to retain possession with it subsequently all throughout. 3. The property which was let out to the Governor General in Council was an open plot. As per the averments made in the petition, the Defence Department has set up a Missile Coast Battery for the purpose of defence. It is not in dispute that even till date the same is used for the said purpose. 4. The predecessor-in-title of the petitioners Mr. E.S. Marker sold his right, title and interest in the said property to the predecessor-in-title of the -4- petitioners. Since the title of the petitioners is not in dispute in the present petition, it is not necessary to refer this aspect in detail. It is an admitted position that the Defence Department had also taken the adjoining property viz. Plot No. 53A. Similar type of lease deed was executed between the original owner and Governor General in Council in connection with the said property. So far as the factual aspect of the matter is concerned, it is not in dispute that plot Nos. 50 and 51 of the present petitioners and plot No. 53A were taken in a similar manner and for the same period for the purpose of world war. 5. On 5th January, 1995, a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) was issued for acquiring plot Nos. 50 and 51 along with plot No. 53-A. Subsequently, an award was also passed by the Collector on 30th May, 1995 which award is a joint award in connection with all the three plots. It is pointed out to the Court that even before declaring the award, a notification under Section 17A of the Act was issued for taking possession of the property by applying urgency clause. The Divisional Commissioner, Kokan Division, respondent No.2, thereafter submitted a report on 29th April, 1995 to the Secretary, Revenue and Forest Department, Mantralaya, Mumbai. An averment to this effect is made in paragraph 16 of the petition. It is averred in the petition that the State Government accorded the approval to the said draft award and ultimately on 30th May,1995, Respondent No.3 passed the award. The copy of the award is at Exhibit-B to the petition. -5- By this award, an amount of Rs. 27,87,29,380/- was ordered to be paid to the petitioners by the respondents. The said award was challenged by respondent Nos. 5 and 6 in this Court by way of writ petition being Writ Petition No. 1603 of 1993, in connection with plot No. 53A on the ground that the quantum fixed was excessive. A Division Bench of this Court vide order dated 30th August, 1996 came to the conclusion that such petition was not maintainable. Alternative finding was also given that even the quantum fixed by the Collector was just and proper. Being aggrieved by the aforesaid order, a Special Leave Petition was preferred which also came to be dismissed on 25th October, 1996. It is the case of the petitioners that after the award was passed on 30th May, 1995, respondent Nos. 5 and 6 have not made any payment towards the rent in view of the fact that they became owners of the plots in question. It is averred in para 26 of the petition that subsequently, an amount of Rs. 59,137/- was sent along with letter dated 2nd July, 1997 towards the rent for the period from 1-7- 1984 to 31st December, 1996. The petitioners after accepting the amount of rent till 30th May, 1995, returned the remaining amount for the subsequent period on the ground that since award is passed, there is no question of accepting the rent. A copy of the letter is at Annexure-K to the petition. So far as the adjoining property 53-A is concerned, respondent Nos. 5 and 6 took out Notice of Motion seeking Court’s permission to withdraw from the acquisition. The Notice of Motion No. 101 of 1997 taken out by respondent Nos. 5 and 6 was dismissed vide order dated 25th July, 1997 observing that since the possession is already -6- with respondent Nos. 5 and 6 after passing of the award, the land in question vests with the Government and, therefore, there is no question of withdrawing from the acquisition. The order of the Division Bench of this Court is placed on record at Exhibit-L to the petition. Respondent Nos. 5 and 6 carried the matter further by way of Special Leave Petition before the Supreme Court against the said order dated 25th July, 1997. The Special Leave Petition was subsequently withdrawn. The order of the Supreme Court dated 3rd September,1997 is at Exhibit-M to the Petition. The order passed by the Supreme Court reads thus: “We are not inclined to interfere with the impugned order. The undertaking filed on behalf of the Petitioners is kept on record. On the prayer of learned ASG appearing for the Union of India, time to deposit money in High Court is extended by 21st September, 1997. It is submitted by Mr. Nariman learned senior counsel appearing for the Respondents that in view of the assurance given that the money will be deposited by 21st September, 1997 the respondent will not press the contempt petition. The SLP stands disposed of.” 6 In view of the above order, respondent Nos. 5 and 6 deposited the amount as per the Award so far as plot No. 53A is concerned. The respondents thereafter took out separate proceedings by way of another writ petition being Writ Petition No. 1929 of 1997 seeking reference to the Land Acquisition Officer for apportionment of awarded amount. The said petition was filed on the ground that the respondents being tenants, appropriate apportionment, is required to be made in the Award. The said writ petition was allowed by this -7- Court by order dated 6th July, 1998, a copy of which is annexed at Exhibit-N to the petition. The owner of plot No. 53A challenged the said order dated 6th July, 1998 before the Supreme Court. The Supreme Court came to the conclusion that the High Court was not justified in passing the order of reference for apportionment. The said decision of the Supreme Court is reported in 2004 (5) Scale 442 (Meher Rusi Dalal vs. Union of India and others). In paragraph 22, the Supreme Court observed thus: “ 22. The High Court has also erred in holding that the claim for apportionment was not barred by principle of res- judicata or principles analogous thereto. As has been set out hereinabove the respondents had filed Writ Petition No. 1603/96 challenging the Award as excessive. One of the grounds for claiming the Award as excessive was as follows: “Petitioners submit that thus while assessing or determine the the compensation the Special Land Acquisition Officer- Respondent No.4 – ought to have considered the share of the tenants/lessees/ documents including the Ministry of Defence on the basis of hiring and as to that extent the compensation ought to have been reduced.” Thus in that Writ Petition they had already claimed that their share as tenants/lessees should have been taken into consideration. The Writ Petition came to be dismissed. The S.L.P. Filed against that Writ Petition was withdrawn by them. To claim apportionment on the ground that they had share as tenant or lessee is in fact nothing else but an attempt to reduce the compensation. The prayer asked for now is identical to the prayer made earlier.” The said order of the High Court was accordingly set aside and the Writ Petition which was filed by the respondents herein was ordered to be dismissed. The -8- order passed by the Land Acquisition Officer dated 26th September, 1997 was affirmed by the Supreme Court and held that the respondents cannot claim a reference under Section 30 nor claim apportionment. 7. So far as acquisition of land at plot no. 53A as well as the amount payable under the Award of the Collector is concerned, the proceedings in connection with the same are now over as the owner of plot No. 53A has been paid compensation as per the Award of the Collector. However, so far as the present petitioners are concerned, even though there was joint award of the Collector, the petitioners were not given any benefit under the said Award and on the other hand the respondents continued to enjoy the possession of the aforesaid two plots. It is not in dispute that subsequently no attempt was made by the respondents in the matter of making payment to the petitioners and all throughout the physical possession continued to remain with the Defence Department. In the meanwhile, the present petitioners were informed by letter dated 21st January, 1999 by respondent No.5 that an order of withdrawal from acquisition has been passed by Respondent No.2. The said order passed in September, 1998 under Section 48 (2) of the Act has been placed on record at pages 115-A to 155-E. In the said order it has been mentioned that land in question is in possession of the department in the capacity of tenant even before proceedings under the Act were initiated and since the possession under the Act has not been taken, there is no question of paying any damages to the landlord -9- under Section 48 (2) of the Act. The correspondence ensued thereafter asking the department to pay the amount as per the award of the Land Acquisition Officer. Having failed to get the dispute adjudicated amicably, the petitioners have ultimately approached this Court by way of this petition. It is prayed that an appropriate writ, order or direction may be issued directing the respondents to release the amount payable to the petitioners in pursuance of the award dated 30th May, 1995 along with interest as prescribed under the Act from the date of the award till the actual payment has been made. It is also prayed that the decision taken under Section 48 of the Act may be quashed and set aside. 8. Mr. Anturkar, learned counsel appearing for the petitioners, strenuously argued that when the award of the Collector is common in so far as plot Nos. 50, 51 and 53A are concerned, there is no reason as to why respondents should not give similar treatment to the owners of plot Nos. 50 and 51 i.e. the present petitioners which has been given to the adjoining plot holder i.e. owner of plot No. 53A. It is submitted by Mr. Anturkar that the action of the respondents in compelling the petitioners to knock the doors of this Court even though in a judicial pronouncement this Court has already found that the respondents cannot withdraw acquisition under Section 48 of the Act is not just and proper. Such action of the respondents can be said to be contemptuous for which separate contempt petition has also been filed by the petitioners. It is submitted by Mr. Anturkar that in all fairness the respondents should have acted -10- reasonably and should have given similar treatment to the petitioners by making necessary payment as per the award of the Collector as has been done in the case of adjoining plot owner i.e. 53A. Mr. Anturkar submitted that the provisions of Section 48 of the Act are not applicable to the facts and circumstances of the case as the possession of both the plots is with the Defence Department. Section 48 of the Act is applicable only when the possession is not taken away but if the possession is taken away then Section 48 cannot be made applicable. Mr. Anturkar has relied upon the decision of this Court in earlier proceedings in connection with plot No. 53A. It is submitted that without any valid reason, the petitioners have been denied the benefit of amount under the award for all these years. It is, therefore, submitted that appropriate direction may be given to the respondents to release the amount as per the award with interest and other benefits as per the provisions of the Act. 9. Mr. Srinivasan, the learned counsel appearing for the respondents, on the other hand, submitted that so far as plot No. 53A is concerned, the department had taken the stand before the High Court that the department would like to withdraw the land acquisition proceedings under Section 48 of the Act. It is submitted by Mr. Srinivasan that at that time actual order was not passed by the department under Section 48 of the Act and in view of the same, it cannot be said that both the cases are similar. Mr. Srinivasan submitted that before the earlier Division Bench, the department had taken the stand that they -11- are going to withdraw from the acquisition, though actual order under Section 48 of the Act was not passed. As against this, so far as the present petitioners are concerned, now a specific order under Section 48 has been passed and, therefore, the earlier order passed by the Division Bench of this Court cannot come to the rescue of the petitioners. Mr. Srinivasan further submitted that earlier Division Bench has not considered the scope of Section 16 of the Act and since the possession was not actually handed over to the Defence Department i.e. acquiring body as contemplated by Section 16 of the Act, the department was justified in invoking Section 48 of the Act as it can never be said that the property vests with the defence department and that possession as contemplated under Section 16 of the Act is not obtained by the department in pursuance of the land acquisition proceedings. Mr. Srinivasan submitted that the possession of the defence department is only as a tenant and not as an owner. Mr. Srinivasan further submitted that in earlier proceedings, this aspect of the matter was not taken into account and, therefore, this court is not bound to follow the said judgment and giving relief to the present petitioners. Mr. Srinivaan submitted that since the possession of the department was only by way of tenant and not as an owner, there was no legal impediment in invoking Section 48 of the Act on the ground that the possession is already with the defence department. Mr. Srinivasan however frankly conceded the fact that so far as the question about quantum of the amount awarded by the Land Acquisition officer is concerned, -12- the same now cannot be challenged as the same has been found to be reasonable. He is not challenging the quantum as it is not possible now to challenge the quantum as awarded by the Land Acquisition Officer. 10. We have heard the learned counsel appearing for the parties. We have also gone through the voluminous record forming part of the proceedings. 11. The principal question which requires consideration in this petition is as to whether it was open for the respondents to withdraw from the acquisition by resorting to Section 48 of the Act. In this connection it will be useful to refer Section 48 of the Act which reads thus: “48. (1) Except in the case provided for in Section 36, the Government for the Commissioner shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government or the Commissioner withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section”. -13- 12. It is vehemently argued by Mr. Srinivasan that it can never be said that the acquiring body had obtained the possession as, according to him, all throughout the acquiring body continued to be a tenant and even before the land acquisition proceedings started, the acquiring body was occupying the premises as a tenant and, therefore, no title of ownership right vests with the respondents. In view therefore, it was open for the acquiring body to withdraw from the acquisition as it cannot be said that the acquiring body had acquired the possession under the provisions of the Act. In this behalf, it is required to be noted that on earlier occasion when the adjoining land owner moved this Court by Notice of Motion No. 101 of 1997 in Writ Petition No. 1733 of 1994, the Division Bench of this Court by its order dated 25th July, 1997 has considered the aforesaid aspect of possession and has observed as under in paragraph 7. “7. A resume of the aforesaid facts would show that a statement was made that the land in question would be acquired way back in 1982 when the Petitioners filed Writ Petition No. 919/82 for a direction to acquire the land or in the alternative to deliver possession. A statement was made on behalf of Respondents No.1 and 2 that they would acquire the and. Based on the statement, the writ petition was withdrawn and prayer for possession of the land was not pressed. Since no steps were taken for a period of 12 years, the petitioners were per force required to file Writ Petition No. 1733/94 for enforcing the statement. Directions were issued by this Court to complete the acquisition within 3 months and an Award accordingly came to be passed on 30th May, 1995. Respondents No.1 and 2 thereafter have time and again sought to challenge the quantum of compensation awarded. The challenge to the Award has failed right upto the Supreme Court. Respondents No.1 and 2 have time and again obtained -14- extension of time to deposit the amount of compensation. After doing all this, they have chosen now to make the present prayer for withdrawing the acquisition. This is after a period of almost 15 years from the date when the acquisition proceedings were initiated. In our judgement, Respondents No.1 and 2 cannot be permitted to resile from their statements earlier made that the property in question will be acquired. As far as withdrawal from acquisition is concerned, the Award in question has already been passed and possession is already with Respondents No. 1 and 2. After passing of the Award, nothing further was required to be done in order to obtain possession. Land has thus vested in the government. Respondents No.1 and 2 in the circumstances are not entitled to withdraw from acquisition in terms of Section 48 (1) of the Act. In the order passed by this Court on 24th June, 1996, it has been specifically observed that the Special Land Acquisition Officer ha passed an Award dated 30th May, 1995. The possession was all along with the Respondents earlier as tenants and after the award as owners. Hence Respondents No.1 and 2 are not, at this belated stage, entitled to withdraw from acquisition. In the circumstances, we find that present notice of motion is devoid of merit and the same is dismissed with costs.” 13. It is not in dispute that so far as factual aspect regarding plots in question i.e. Plot Nos. 50 and 51, it is identical to the facts of Plot No. 53A and the Defence Department was in possession by virtue of lease agreement of these plots. It is not in dispute that the award of the Land Acquisition Officer is common in connection with these plots. The Division Bench having held that the possession is already with respondent Nos. 1 and 2 therein after passing the award and therefore nothing further was required to be done in order to obtain possession and the land has thus vested in the Government and the respondent Nos. 1 and 2 were held not entitled to withdraw from the -15- acquisition under the provisions of Section 48 (1) of the Act. In our view, on the same set of facts and circumstances, this Court cannot take a different view now by holding that the possession of respondents was only in the capacity as