1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.489 OF 1998 IN LAND ACQUISITION REFERENCE NO.6 OF 1995 AND CROSS OBJECTION (LODG) 3 OF 2000 IN APPEAL NO.489 OF 1998 Union of India. ...Appellant vs. New Reviera Co-operative Housing Society Ltd. & others. ...Respondents. AND WRIT PETITION NO.2469 OF 2002 The New Reviera Co-op. Housing Society Ltd. ...Petitioner Vs. The Special Land Acquisition officer (5)Mumbai City and Mumbai suburban District & ors. ...Respondents. --- Mr.K.R.Chaudhary with Nisha Valani, for Appellant in appeal and for respondent no.2 in writ petition. 2 Mr.Sudhir Gupta i/ b. Vasant Dhawan, for Respondent no.2 in appeal and for Respondent nos.4(i)& 4(ii)in writ petition. Mr.R.V.Pai with Mrs.Sonia Miskin i/b. R.U.Shah, for Respondent no.1 in appeal and for appellant in cross objection and for petitioner in writ petition. Mr.P.G.Lad, AGP for Respondent no.3 in appeal and cross objection and for Respondent nos.1 & 3 in writ petition. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 27th January, 2009. P.C.:- 1. All these proceedings can be disposed of by common order because these proceedings relate to the same property and they are between the same parties. The facts that are relevant are that on 30.1.1940 the Government of Maharashtra leased out a plot of land bearing Plot no.217, C.S. no.1760, Block II, Backbay Reclamation, Bombay admeasuring 1675.59 square meters to Rani Roopraj Laxmi for 99 years. Thereafter, the lessee constructed a building by name 3 Reviera which had 28 flats. Three flats are on the ground floor and on each floor thereafter there are four flats. On 1.8.1942, Union of India hired 24 flats in the said building at monthly rent of Rs.4123/- . The remaining four flats were let out to other tenants. On 12.4.1976 the property was auctioned by Bombay Municipal Corporation for failure to pay taxes. The property was purchased by the Society by name New Reviera Co- operative Society and sale certificate dated 27.7.1978 was issued in favour of the society. It appears that on 14.11.1977, a notification under Section 4 of the Land Acquisition Act was issued for compulsory acquisition of this property. It was being acquired for the purpose of Union of India. A declaration under section 6 of the Act was made on 17.11.1980. Thereafter, the proceedings were started for making the Award. It appears that the Society which had purchased the property, tried to challenge the acquisition by filing writ petition and appeal, but ultimately that challenge failed. The proceedings for making award went on before the Special Land Acquisition Officer who made the award 4 on 22.1.1993. It appears that during the pendency of the proceedings before the Land Acquisition officer, the original owner Rani Roopraj Laxmi expired and the persons claiming to be her legal representatives filed an application making reference under Section 18 of the Act. Their application was referred and the reference proceedings being Land Acquisition Reference No.6 of 1995 was registered. It appears that the Society had also filed an application for making reference before the Land Acquisition officer on 4.3.1993. That application has never been referred by the Special Land Acquisition Officer to the Court because he was under the impression that when he had referred the application made by the legal representatives of Rani Rooparaj Laxmi to the Court, he had also referred the application of the Society to the Court. It appears that the Special Land acquisition officer while referring the reference under Section 18 of the Act made by the heirs of Rani Rooparaj Laxmi, had also referred the reference under Section 18 of the Act for apportionment of the compensation. By the Award dated 23.1.1998, the learned Single Judge of this Court has decided both 5 the references. By an order made in reference filed by the legal representatives of Rani Rooparaj Laxmi, he enhanced the compensation for building as well as land. So far as the aspect of apportionment is concerned, he held that so far as the land is concerned, the Government of Maharashtra being lessor is entitled to 40% of the compensation for the land and the lessee is entitled to 60% of the compensation. So far as the building is concerned, the learned Single Judge has held that as the building was purchased by Reviera Co-operative Housing Society because of sale certificate issued by the Corporation, it is entitled to receive full compensation for the building. The Union of India filed appeal bearing appeal no.489 of 1998 challenging the judgment of the learned Single Judge enhancing the compensation at the instance of the legal representatives of Rani Rooparaj Laxmi it also challenges the order of the learned Single Judge in so far as it does not award a part of the compensation for the building in favour of Union of India which was the lessee of 24 flats. 6 2. It appears that after the appeal no.489 of 1998 was filed, the Society took out a notice of motion in this appeal for a direction to Special Land Acquisition officer to refer its application under Section 18 of the Act to Court. It appears that initially that notice of motion was granted but subsequently that order was reviewed and set aside. In the year 2002, the Society filed a writ petition bearing writ petition no.2469 of 2002 claiming a direction to Special Land Acquisition officer to refer its application under Section 18 to the Court. The society has also filed cross objection in the appeal filed by the Union of India. The cross objection mainly challenges the order of the learned Single Judge entertaining the reference application made by the legal representatives of Rani Rooparaj Laxmi. It also challenges apportionment of the compensation in favour of the legal representatives of Rani Roopraj Laxmi. Basically in the cross objection, the claim of the society is that as per the sale certificate issued by the Corporation, the society has become the owner not only of the building but also of the land, and therefore, according to the 7 Society, the reference application filed by the legal representatives was not maintainable. It is submitted that the sale of the property by the Corporation has never been challenged by the legal representatives of Rani Roopraj Laxmi. 3. We have heard the learned Counsel appearing of Union of India, State of Maharashtra and the legal representatives of Rani Rooparaj Laxmi as also the learned Counsel appearing for Society. 4. According to the learned Counsel appearing for Union of India-the appellant and the Society, the reference application filed by the legal representatives of Rani Rooparaj Laxmi itself was not maintainable because by the sale certificate issued by the Corporation which was registered in the office of the Sub-Registrar on 26.8.1976 not only the building but the rights of Rani Rooparaj Laxmi in the land were also transferred in favour of the society, and therefore, from the date of registration of the document of sale certificate, Rani Rooparaj Laxmi and therefore her legal representatives ceased to have 8 any right, title and interest in the property. The document of sale certification which is a document creating title in favour of the Society has at no point of time been challenged by either Rani Roopraj Laxmi during her life time or her legal representatives after her death. The learned Counsel appearing for legal representatives of Rani Rooparaj Laxmi submitted that the legal representatives became aware of the document of transfer in favour of the society only after the Award was made. According to the learned Counsel, that document was not before the learned Single Judge in the proceedings before the learned Single Judge. The learned Counsel also made submission before us as to the validity of the auction held by the Corporation for selling the property. 6. Now perusal of the order passed by the learned Single Judge, shows that the learned Single Judge in paragraph 18 of the order has observed thus:- “However, so far as the compensation in 9 respect of the building is concerned, neither the lessor nor the lessee can make any claim over the same. (Lessor is State of Maharashtra and lessee is legal representatives of Rani Rooparaj Laxmi.) The building was purchased by Reviera Society in an auction sale held in the year 1976, that is, prior to the date of notification under section 4(1) of the “Act”. The lessee or her heirs never challenged the said auction sale hence it has become final. Therefore, the only persons who can claim the compensation in respect of the building is Reviera Society.” It is clear from these observations that the learned Single Judge had before him the fact that the property has been sold to Reviera Society in an auction held in the year 1976, because it is only on the basis of that circumstance that the learned Single Judge has held that the legal representatives of Rani Rooparaj Laxmi are not entitled to claim any amount in relation to the building. The finding recorded by the learned Single Judge holding that the legal representatives of Rani Rooparaj Laxmi are not 10 entitled to any compensation for the building and the order denying them compensation has not been challenged by the legal representatives of Rani Rooparaj Laxmi either by filing an appeal or by filing cross objection. Perusal of the document of sale certificate shows that by that sale certificate it is not only the building which has been sold but interest in the land on which the building stands has also been sold. It is, therefore, clear that from the date of registration of sale certificate i.e. 26.8.1976 Rani Rooparaj Laxmi who was alive till 1991 ceased to have any interest in the land as also in the building. Therefore, when the notification under Section 4 of the Act was issued, she had no interest either in the land or in the building, and therefore, the application made under Section 18 of the Act for enhancement in the compensation for the property by the legal representatives of Rani Rooparaj Laxmi was not maintainable. In our opinion, therefore, the appellant-Union of India is justified in challenging the order of the learned Single Judge enhancing the amount of compensation for land as also the building in the reference filed by the legal representatives 11 of Rani Rooparaj Laxmi. What is surprising is that though the learned Single Judge holds that the legal representatives of Rani Rooparaj Laxmi have no interest in the building in the reference filed by them, the learned Single Judge has enhanced the amount of compensation for the building also. On the finding of the learned Single Judge himself that the legal representatives of Rani Rooparaj Laxmi have no interest in the building, the learned Single Judge should have declined to enhance the compensation for the building at their instance. In our opinion, the order of the learned Single Judge enhancing the amount of compensation in the land and the building at the instance of the legal representatives of Rani Ruooaraj Laxmi has to be set aside. So far as the submission on behalf of the legal representatives of Rani Rooparaj Laxmi that they were not aware of the sale and that the sale is invalid is concerned, transfer of the property is brought about by a registered document and unless there is direct challenge to that document and that document is set aside, the title in the property cannot re-vest in Rani Roopraj Laxmi or her legal representatives. 12 Even assuming that the sale is invalid, unless it is either directly challenged or collaterally challenged and order is made setting it aside and holding it invalid, it exists and is binding on all the parties and Court of law will have to recognize it. It is clear from the order of the learned Single Judge that the fact that the order has been made in the reference made by the legal representatives of Rani Rooparaj Laxmi and the fact that the property has been sold in an auction held by the Corporation, was on the record of the learned Single Judge. In any case, that fact has been mentioned in the order of the learned Single Judge dated 23.1.1998. Even, till today no proceedings have been instituted by the legal representatives of Rani Rooparaj Laxmi challenging the same. Even, in the present proceedings neither any cross objection has been filed nor any cross appeal has been filed for making an attempt to challenge the sale. Though it is doubtful whether it could have been done in these proceedings, however, even it is assumed that an attempt could have been made in these proceedings, no attempt has been made to do it. Thus, there is 13 neither any direct or indirect challenge raised to the sale of the property by the Corporation till this date by either Rani Rooparaj laxmi or her heirs. Therefore, we see no substance in the submission made on behalf of the legal representatives of Rani Rooparaj Laxmi. 7. So far as the apportionment of the compensation for the land between the lessee and the lessor i.e. Government of Maharashtra and the Lessee is concerned, now the lessee is the Society in the cross objection that has been filed, there is no objection raised to the apportionment of 60% of the compensation in favour of the lessee and 40% in favour of the lessor and therefore, we find no reason to disturb the apportionment except to say that now 60% of the compensation in the land as fixed by the Special Land Acquisition officer would be receivable by the society and not by the legal representatives of Rani Rooparaj Laxmi, and 40% of the compensation would be receivable by the Government of Maharashtra being lessor. How this apportionment is to be made actually, will have to be decided by the Special Land 14 Acquisition Officer in appropriate proceedings. So far as the apportionment of compensation for the building is concerned, it is the case of Union of India that admittedly 24 flats were taken on rent by them from 1.8.1942 and therefore, they were lessee of the flats when the land was acquired and therefore, they will be entitled to apportionment of compensation of the building between them and the owner of the building. There is no dispute before us that 24 flats were taken on rent by Union of India. The only submission made in that regard by the learned Counsel appearing for the Society is that the Union of India has received vacant possession of the flats after acquisition and Union of India is not entitled to remain as lessee. In our opinion, there is no force in the arguments because the Union of India is a lessee in different capacity. In our opinion, if the Society is entitled to receive compensation for the land as lessee, by the same logic the Union of India as a lessee of 24 flats will be entitled to share the compensation awarded of the building, in the same ratio, in which the compensation is apportioned for the land, between the 15 lessor and the lessee. Therefore, the amount of compensation for the building decided by the Special Land Acquisition officer will have to be divided between Union of India and the Society in the ratio of 60:40. The Union of India as a lessee will get 60% of the compensation and the Society as a lessor will get 40% of the compensation. The Special Land acquisition officer will have to make appropriate Award in this regard also. It was also submitted that the Society is entitled to interest on the amount which has been deposited in this Court. The learned Counsel appearing for Society, however, fairly states that in his cross objection this is not a ground raised. In our opinion, in the absence of any ground raised, we will not be justified in making any order in this regard either in the appeal or in the cross objection. That takes us now to the writ petition filed by the Society. By that petition, a direction is sought to the Special Land Acquisition officer (5) Mumbai City to decide the reference application made by the Society on 4.3.1993 under Section 18(2) of the Land Acquisition Act and forward it to the Court for determination of compensation. 16 We have perused the record. From the record it appears that there is no dispute that the application of the society under Section 18 of the Act was received by the Special Land Acquisition officer on 4.3.1993, but it appears from the record that because the Special Land acquisition officer was under the impression that he has referred that application to the Court when he referred the application of the legal representatives of Rani Rooparaj Laxmi to the Court. In fact, he did not refer the application of the society to the Court, and therefore, the application of the Society remained pending with the Special Land Acquisition officer. Therefore, had the Society approached the Court immediately for making reference, the Society would have got that order from the Court. However, due to the conduct of the Society, in our opinion, the society is not entitled to writ of mandamus in this regard. Issue of writ of mandamus is in the discretion of the Court. The petitioner does not become entitled to get writ of mandamus only because he makes out a case of breach of statutory right. The Court will have to take into consideration all surrounding circumstances to find 17 out whether the petitioner is entitled to issue of writ of mandamus. In our opinion, latches involved in the petitioner approaching the Court dis-entitles the petitioner to writ of mandamus which is in the discretion of the Court. Even accepting the submission made on behalf of the Society that it became aware in the year 1995 that its application has not been referred to the Court, then also it is apparent that from the year 1995 till 1999 when it took out notice of motion in appeal no.489 of 1998 it did not take any step to have its application referred. If the Society had taken step even in the year 1995, then its' reference could have been referred to the Court and could have been tried with the reference of the legal representatives of Rani Rooparaj Laxmi and the reference for apportionment, but they did nothing till the Award was made in January,1998. Thereafter also, they did not take any step immediately after the Award till the appeal was filed by the Union of India and in that appeal they took out notice of motion. Obviously, the order for reference could not have been made in the notice of motion taken out in the appeal filed challenging the 18 Award made by the learned Single Judge. The learned Counsel appearing for petitioner submitted that they had filed review application before the learned Single Judge after he made the Award. Obviously, the attempt was mis-directed. The learned Single Judge who was hearing the reference could not have issued any direction to the Special Land acquisition officer to make a reference. The only method that can be adopted by the petitioner is to make an application to the Special Land Acquisition officer or its superior officer or to approach this Court for writ of mandamus. Admittedly, the Society did not take those steps either during the pendency of the reference or even after the reference was decided. It had filed notice of motion in the appeal and that notice of motion was initially granted but then the order was recalled. Thereafter, also the petitioner did not approach this Court by filing writ petition seeking appropriate reliefs till the year 2002. The present petition was filed in the year 2002. In our opinion, therefore, the petitioner is guilty of latches. In our opinion, this conduct of the petitioner dis-entitles the petitioner to any reliefs 19 which is in the discretion of the Court. Had the petitioner taken prompt steps, its reference could have been decided with the reference made by the legal representatives of Rani Rooparaj Laxmi. It appears that the Society did not deliberately take the steps as it wanted to see the result of the reference made at the instance of the legal representatives of Rani Rooparaj Laxmi and after the reference of legal representatives of Rani Rooparaj Laxmi was allowed, it filed notice of motion in the appeal which was obviously ill-advice and thereafter, after three years the petitioner has filed the present writ petition. Writ petition, therefore, deserves to be dismissed. It is accordingly so dismissed. Appeal, cross objection and writ petition are disposed of. 8. As we have set aside the enhancement of the compensation, if any amount of enhanced compensation is deposited by the appellant, it will have to be refunded to them with accruals, if any. The learned Counsel appearing for appellant states that the appellant has deposited the amount of enhanced 20 compensation in this Court. The statement is accepted. Therefore, the office is directed to refund the amount of enhanced compensation with accruals to the appellants. (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---