1 wp-8258-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8258 OF 2011 Shireesh Sharad Chitnis ..Petitioner Vs. The President, Maharshi Karve Stree Shikshan Sanstha & Ors. ..Respondents Mr. V. A. Thorat Senior Advocate with Mr. M.M.Sathye for the Petitioner Mr. Y. S. Jahagirdar Senior Advocate with Mr. Sandeep Waghmare and Milind Oka for the Respondent Nos.1 to 3 CORAM : R M SAVANT, J. DATE : 12th December 2011 P.C. 1 The above Petition filed under Article 227 of the Constitution of India, takes exception to the Order dated 12­9­2011 passed by the Learned Adhoc District Judge­2, Satara, by which Order the Misc Civil Appeal No.108 of 2011, filed by the Respondents herein i.e. the Original Defendants came to be allowed and resultantly, the order granting temporary injunction to the Petitioner herein in the suit filed by them being Civil Suit No.399 of 2010, came to be set aside. 2 The dispute in question is as regards the land bearing CTS No.730 Shanivar Peth, Satara. The said land was amongst the three lands which were owned by the family of the Petitioner herein. The other two being the land being CTS No.729 and 1161. The said lands were subject to acquisition under the Land Acquisition Act 1894 for the purposes of the Respondents Trust namely for school and play ground. The acquisition in respect of the said land 2 wp-8258-11.sxw was completed on the declaration of the award some time in the year 1986. The compensation which was awarded, has been deposited by the authorities with the concerned Special Land Acquisition officer. 3 The Petitioner being aggrieved by the said acquisition proceedings had filed Regular Civil Suit Nos.256 of 1986 and 279 of 1986 in the Civil Court at Satara challenging the acquisition inter alia on the ground mentioned in the said suits. In terms of the settled position in law as regards the challenge to the acquisition in a civil suit the said two suits were dismissed by the Civil Court for want of jurisdiction. The Petitioner thereafter filed two Civil appeals being Civil Appeal No.41 and 42 both of 2002. 4 It appears that during the pendency of the said Appeals, the parties i.e. the Petitioner and the Respondents entered into a compromise Deed dated 5­8­2002. The terms of the said compromise have been set down in a document bearing the said date. Suffice it to say that, in terms of the said compromise, the Petitioner was to continue to possess an area of 4000 sq.ft. out of CTS No.730 and the rest of the properties were to be in the possession of the Respondents herein. The said two Appeals accordingly came to be withdrawn in view of the said compromise deed dated 5­8­2002. It appears that thereafter, the authorities by following the procedure under the Land Acquisition Act took the possession of the property in question on 12­11­2002. 5 The Petitioner on the apprehension that the Respondents would try to demolish the shed in the suit property and would try to take possession, filed a fresh Suit being Regular Civil Suit No.399 of 2010. The said suit was filed for 3 wp-8258-11.sxw perpetual injunction against the Respondents restraining the Respondents from interfering with the possession of the Petitioner. The substratum of the said Suit was the compromise deed dated 5­8­2002 on the basis of which the Petitioner claimed the discretionary relief of injunction from being dispossessed. In the said Suit, an application for temporary injunction came to be filed by the Petitioner which came to be allowed by the Trial Court by its Order dated 29­6­2011, principally on the ground that the Petitioner was in possession of the property ad­measuring 4000 sq.ft. out of CTS No.730. The injunction was granted to the effect that the Respondents were restrained from taking possession of the suit property. 6 Aggrieved by the Order dated 29­6­2011, the Respondents herein filed an Appeal which came to be numbered as Misc Civil Appeal No.108 of 2011 in the District Court At Satara. As indicated herein above, the said Appeal came to be allowed by the impugned Order dated 12­09­2011. The gist of the reasoning of the Learned District Judge as can be seen from the impugned Order was that the land in question has already been acquired pursuant to the Award of 1986 and by the compromise deed. What was sought to be done was to create some sort of a right in favour of the Petitioner without the necessary approvals from the Charity Commissioner. The Learned District Judge held that for the right of the nature that was created by the said compromise deed dated 5­8­2002, the permission of the Charity Commissioner would be required under Section 36 of the Bombay Public Trust Act, 1950. As indicated above, it is the said Order which is impugned in the 4 wp-8258-11.sxw present Petition. 7 Heard the Learned Senior Counsel for the parties. 8 The Learned Senior Counsel appearing for the Petitioner Mr. Thorat would contend that whilst considering the application for temporary injunction, the First Appellate Court was only required to consider the aspect of possession, by adverting to the document dated 5­8­2002 and the various clauses mentioned therein, the Learned Senior Counsel would contend that the fact that the Petitioner was in possession can be demonstrated from the various clauses of the said compromise decree dated 5­8­2002. The Learned Senior Counsel would contend that it is well settled that a person who is in settled position can only be ousted by following the due process of law. To buttress the said contention, the Learned Senior Counsel relied upon a Judgment of the Apex Court reported in AIR 1989 Supreme Court 2097 in the matter of Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao, wherein it has been held to the following effect: “It is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.” 9 Per contra, it is submitted by the Learned Senior Counsel Mr. Jahagirdar appearing on behalf of the Respondents that the possession on which much store has been laid by Mr. Thorat the Learned Senior Counsel appearing for the Petitioner has to be referable to a valid title. In the instant case, it is an 5 wp-8258-11.sxw undisputed position that the Petitioner and his family has been divested of their title on account of the acquisition. The Learned Senior Counsel would rely upon Section 44A of the Land Acquisition Act in which it is posited that no company for which any land is acquired under this part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate government. Relying upon the said provision, the Learned Senior Counsel would contend that the agreement contained in the said compromise deed cannot said to be valid or legal. 10 Having heard the Learned Senior Counsel at some length and having perused the order impugned, in my view, there is no merit in the above Petition. It is an undisputed position that the acquisition was completed as long back as in the year 1986 by a declaration of the award in respect of the land in question. The possession of the land in question has also been taken. The questions as to whether after the Petitioner and his family were divested of their title, the Petitioner could seek the discretionary relief on the basis of the compromise deed dated 5­8­2002. In my view, the answer has to be in the negative for two fold reasons. Firstly that the said document could not have been entered into without the permission of the appropriate Government under Section 44 A of the Land Acquisition Act in as much as, the said land was acquired by the authorities by having recourse to Chapter VII which is an independent proceeding of acquisition for the benefit of the companies. The 6 wp-8258-11.sxw second ground is that as held by the First Appellate Court no rights could have been created in respect of the property in question belonging to a trust in the absence of the permission from the concerned authorities under the Bombay Public Trust Act 1950. In the instant case, as the clause of the compromise deed indicate a Sale deed was contemplated to be executed in favour of the Petitioner and till such time, as the sale deed was executed the Petitioner was to continue in possession on the payment of an amount of Rs.1200/­ per month. The First Appellate Court, therefore, in the context of the transaction contemplated by the compromise deed was right in holding that considering the nature of the transaction which was contemplated by, the compromise deed does not create any valid right in favour of the Petitioner in the absence of the permission of the concerned authorities. As the property in question after its acquisition had become the property of a trust. 11 In the instant case, since the Petitioner and his family has been divested of their title on account of the acquisition , the First Appellate Court was right that the discretionary relief of injunction could not be granted as possession has to be referable to a valid title which the Petitioner in the instant case had lost on account of acquisition. In the fact situation of the present case wherein there is an acquisition of the property, the Judgment in Krishan Ram Mahale’s case (supra) will have no application. 12 Having considered the impugned Order passed by the First Appellate court, in my view, no case for interdiction in the writ jurisdiction of this Court is made out. The Writ Petition is accordingly dismissed. 7 wp-8258-11.sxw 13 At this stage, the Learned Senior Counsel appearing for the Petitioner seeks continuation of the stay granted by order dated 15­9­2011. In the facts and circumstances of the case, in my view, the purpose would be served if the parties are directed to maintain status­quo for a period of four weeks from date. [R.M.SAVANT, J]