1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 516 OF 2009 IN WRIT PETITION NO. 289 OF 1993 1. Mrs.Amarjit Thapar, 2. Shri Sanjay Thapar, 3. Shri Monish Thapar. ... Petitioners. V/s. S.K.Laul and others. ... Respondents. D.J.Khambatta, Additional Solicitor General with Ms.Padma Divakar for the respondents in support of notice of motion. Devrat Dharkar with G.S.Pikale i/b. S.V.Pikale and Co. for the petitioners to show cause. AND NOTICE OF MOTION NO. 88 OF 2010 IN WRIT PETITION NO. 289 OF 1993 1. Satyapal Thapar 2. Mrs.Amarjit Thapar. ... Petitioners. V/s. S.K.Laul and others. ... Respondents. Devrat Dharkar with G.S.Pikale i/b. S.V.Pikale and Co. for the petitioners in support of notice of motion. D.J.Khambatta, Additional Solicitor General with Ms.Padma Divakar for the respondents to show cause. 2 CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 6th April 2010. P.C.: Notice of motion No.88/2010 is not on board. By consent of parties, the same is taken up on board for hearing along with Notice of Motion No.516/2009. 2. Perused record and proceedings and respective notices of motion. Heard rival parties. 3. The facts in nutshell are that the petitioners had challenged the order dated 15th January, 1993 passed by respondent Nos.1 to 5 under section 269UD(1) of the Income Tax Act, 1961 (“Act” for short) ordering purchase of property viz. Flat No.D-1 located in Mandar Co- operative Housing Society Ltd., Raut Land, Juhu Village, Mumbai- 400 049 (“subject property” for short) by the Central Government under section 269UD(1) of the Act. The petitioners had prayed for quashing of the said order dated 15th January, 1993 and sought injunction against the respondents from taking any steps pursuant to or in furtherance or continuation of or implementation of the impugned order with other reliefs more specifically set out in the petition. 4. This Court was pleased to allow writ petition vide its judgment and order dated 4th June, 2007. In the result, order dated 15th January, 1993 was quashed and set aside and the petitioners were directed to pay 3 Income-tax Department Rs.56,13,227/- within four weeks from the date of pronouncement of the judgment, failing which, the same was to carry interest at the rate of 12% per annum. The relevant portion of the said judgment reads as under: “34. The petitioners shall pay to the Income-tax Department Rs.56,13,227/- within four weeks from the date of pronouncement of judgment, failing which, the same shall carry interest @ 12% per annum. 35. In the result, petition is allowed. Rule is made absolute in terms of this order with no order as to costs.” 5. The aforesaid paras 34 was substituted by subsequent order dated 29th June, 2007. With the result, the order dated 4th June, 2007 stood modified to that extent. The substituted para-34 holding field reads as under: "34. The Income Tax Department shall hand over the possession of the premises and also execute necessary Deed of Sale and convey the property and register the same immediately, on receipt of the said sum of Rs.56,13,227/-. The Petitioners are permitted to deposit the same within a period of four weeks from today. In the event, the Income Tax Department does not accept the said amount, the Petitioners are permitted to deposit the same with the Prothonotary and Senior Master of this Court." (Emphasis supplied) 4 6. The above judgment and order of this Court was subject matter of challenge in Special Leave Petition No.8872/2008 filed by respondent Nos.1 to 5 (UOI); wherein order dated 4th June, 2007 and modified order dated 29th June, 2007 passed by this Court in Writ Petition No.289/1993 were maintained by the Apex Court vide its order dated 14th July, 2008. 7. The petitioners on 11th September, 2007, as per the direction of this Court in the order dated 4th June, 2007 read with order dated 29th June, 2007, deposited a sum of Rs.56,13,227/- with the Prothonotary and Senior Master of this court for being paid to the Union of India (Income-tax Department). 8. The petitioners finding reluctance on the part of respondent Nos.1 to 5 to comply with the order of this Court dated 4th June, 2007 as modified by order dated 29th June, 2007 filed Contempt Petition No.83/2009. The said petition appears to be pending for consideration. During the course of hearing on 10th November, 2009, the respondent Nos.1 to 5 offered to hand over the physical possession of the subject property to the petitioners and, accordingly, on 16th November, 2009, the respondent Nos.1 to 5 have handed over the physical possession of the subject property to the petitioners. 9. The petitioners after taking possession of the subject property appears to have inspected the same and found that it was completely unfit for human habitat since it was not properly maintained by respondent Nos.1 to 5. According to the petitioners, cost of 5 reconstruction of bungalow would be around Rs. 45,68,000/-. The petitioners are holding respondent Nos.1 to 5 liable and responsible to make the said loss good. 10. In the aforesaid facts and circumstances of the case, the petitioners also came up with the notice of motion being Notice of Motion No.88/2010 carrying following prayers: (a) That this court be pleased to formulate the terms of reference of the disputes between the petitioners and respondent nos.1 to 5 to ascertain damage, mesne profit and other claims and counter claims of parties regarding the subject property and refer the same to arbitration; (b) That the respondent Nos.1 to 5 be directed to provide photostate copies of all the document with them to the petitioner to enable them to complete the documents for conveyance/ execution of the subject property; (c) Cost of the present motion be provided for;” 11. Before the aforesaid motion could be heard and decided, the Notice of Motion No.516/2009 is taken out at the instance of respondent Nos.1 to 5 to seek clarification as to whether the Appropriate Authority can execute the agreement of transfer in respect of the subject property in absence of any right title and interest over the subject property since quashing of the order under section 269UD(1) of the Act has resulted in divesting their title in favour of the original owner. They have also sought further direction against 6 the petitioners directing them to bear the expenses of stamp duty and transfer charges with further direction to the respondent No.6 to reimburse to respondent No.1 the maintenance and security charges in the sum of Rs.26,64,906/-. 12. The first prayer in the above notice of motion moved by respondent Nos.1 to 5 is based on the belief that setting aside the order under section 269UD(1) of the Act has resulted re-vesting the subject property in favour of the transferor and the Appropriate Authority is entitled to get back apparent consideration paid by it. In support of the motion, the submission on behalf of Revenue is that, in view of setting aside the order of acquisition of the property, the title thereof stood divested from the Central Government and that now the Central Government has no right, title and interest in the said property as such they are not obliged to execute the conveyance in favour of the petitioners as ordered by this Court vide modified order dated 29th June, 2007. 13. While hearing the notice of motion moved on behalf of the Revenue, it was canvassed on behalf of the petitioners that the orders passed by this court dated 4th June, 2007 and 29th June, 2007 were affirmed by the Apex Court and, therefore, it was necessary for the Revenue to seek clarification from the Apex Court and not from this court. 14. Considering the above stand, Revenue invoked review jurisdiction of the Apex Court by filing review petition bearing No.C-477/2010 in Special Leave Petition 7 (C) No.17632/2008 which was heard by the Apex Court and disposed of vide its order dated 16th March, 2010 reading as under: “We have gone through the review petition and the relevant documents. There is delay in filing the review petition. In our opinion, no case for review of our order is made out both on the grounds of delay as well as on merits and accordingly the review petition is dismissed.” 15. In view of the above development, the parties to the petition pressed their respective Notice of Motion Nos.516/2009 and 88/2010 to canvass their respective contentions in support of their respective prayers made therein. Both the motions being interconnected were heard together. 16. Having heard rival contentions, we are of the opinion that so far as dispute with respect to execution of conveyance in respect of the subject property in favour of the petitioners by the respondent Nos.1 to 5 is concerned, petitioners are expected to approach the executing Court under Order 21 of the Code of Civil Procedure, 1908 (“C.P.C.” for short); wherein the counter claims set up by the parties against each other can be gone into. So far s direction sought by the Revenue seeking reimbursement of the maintenance and security charges in the sum of Rs.26,64,906/- is concerned, the same can also be resolved by the executing court. This Court in its writ jurisdiction cannot adjudicate upon the disputed questions of fact raised by the parties. 8 17. In the aforesaid view of the matter, both motions are liable to be rejected without examining merits or demerits thereof leaving the parties to approach the executing Court to get the order passed by this Court under Article 226 of the Constitution of India executed since it is an executable order under Order 21 of C.P.C. Chapter 23 of the Bombay High Court (Original Side) Rules in general and rule 647 thereof in particular as well as rules 21 to 24 of Chapter 17 of the Bombay High Court (Appellate Side) Rules provide that the order passed by the writ court can be executed as a decree (see J.P.Sharma v. The Phalton Sugar Works Ltd., AIR 1964 Bom. 116 and Kadarbhai Noorali Bohari v. State of Maharashtra, AIR 1985 Bom. 247). Once the order passed on the this Court in its writ jurisdiction is put in execution, then it would be open for the parties to raise their rival claims which the executing Court shall be free to decide on its own merits in accordance with law. Parties are let to their remedy. All rival contentions are kept open. 18. At this juncture, we place it on record that the petitioners have agreed to bear the cost of stamp duty and transfer charges as may be required to be incurred for getting the conveyance executed. 19. In the result, both notice of motions are disposed of in terms of this order leaving the parties to their remedy with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)