1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.166 OF 2009 1. Francis Joseph Ferreira Age : 79 years 2. Thomas Anthony Ferreira 3. John Peter Ferreira 4. Adrian Leo Ferreira 5. Anthony Alban Ferreira 6. Mathew Remy Ferreira All of Mumbai, Indian inhabitants, having their address at 17/a, St. Martin Road, Bandra(West) Mumbai  400 050. ..Petitioners 7. Ashaben Premjibhai Patel 8. Vinodbhai Premjibhai Patel 9. Krunal Premjibhai Patel 10. Kumari Sarita Premjibhai Patel 11. Kusumben Laxmanbhai Patel 12. Minesh Laxmanbhai Patel 13. Kalpesh Laxmanbhai Patel 14. Rajesh Laxmanbhai Patel 15. Savita Harishchandra Patel 16. Sanjay Harishchandra Patel 2 17. Vimla Rajesh Patel 18. Bhavna Harishchandra Patel 19. Jyoti Harishchandra Patel 20. Babanbhai Ravjibhai Patel 21. Shakuntala Baban Patel ..Petitioners 22. Shailesh Baban Patel 23. Sudha Dharmendra Patel 24. Naina Jitendra Thakur 25. Bhavna Baban Patel 26. Nitesh Baban Patel All of Mumbai, Indian, Inhabitants residing at Premji Patel Chawl, Tank Road, Sapurpada, Valnai, Malad(West), Mumbai  400 064. 27. Mamtora Foundation a Partnership firm registered under the Indian Partnership Act, 1932 carrying on business at 701, Shri Girivar, S.V.P.Road, Kandivali(West), Mumbai  400 067. V/s. 1. The Additional Collector & Competent Authority, Urban Land (Ceiling & Regulation) Act, 1976 having address at 5th floor, Near Chetana 3 College, Administrative Building, Bandra(East), Mumbai  400 051. ..Respondents 2. The State of Maharashtra through its Urban Development Department, Mantralaya, Mumbai  400 032. Mr.Ryan D'souza with Mr.Kalpesh Mehta i/b.M/s.Pravin Mehta & Mithi & Co., Advocate, for the petitioners Mr.D.A.Nalawade, Government Pleader, for the respondent Nos.1 & 2 CORAM : F.I.REBELLO & C.L.PANGARKAR, JJ. DATE : 18TH JANUARY, 2010 ORAL JUDGMENT ( PER F.I.REBELLO, J.) . Rule. 2. Heard forthwith. 3. The land which is the subject matter of the present petition is the subject matter of the proceedings under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 and the rules framed thereunder. On 17th March, 2006, a notice was issued under Section 4 10(5) of the said Act to handover the possession of the said surplus vacant land on 17th April, 2006, at 2.30.P.M. It is the case of the petitioners that they did not receive any notice under Section 10(5) of the Act nor a copy of the same was pasted on the said lands. According to the petitioners, on applying under the provisions of the Right to Information Act they got copies of the documents. In the notice it was set out that in the absence of the petitioners being at the site on 17th April, 2006, at 2.30 P.M ex-parte possession will be taken on the said date and time. 4. It is the case of the petitioners that though, panchanama was drawn of taking possession of the land and though in the notice dated 17th March, 2006, it was set out that possession would be taken, in fact no panchanama as required in law was drawn up. Learned counsel submits that except the 5 written words in the Panchanama that City Survey officer, Goregaon, has remained present on 17th April, 2006, there is no other evidence to hold that possession was taken. 5. The learned counsel relies on the Judgment of the Supreme Court in the matter of Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs., reported in AIR 1996 SUPREME COURT 3377 to contend that one exceptional mode of taking possession of acquisition of land is recording of a memorandum or panchanama by the Land Acquisition Officer in the presence of witnesses signed by them and that would constitute taking possession of land as otherwise it would be impossible to take physical possession of the acquired land. The learned counsel draws our attention to the procedure which the respondents themselves have set out, namely that a panchanama should be drawn up for taking possession of the land. The learned counsel also relies on the 6 Judgment of the Supreme Court in the matter of NATIONAL THERMAL POWER CORPORATION LIMITED Versus MAHESH DUTTA AND OTHERS, reported in (2009) 8 Supreme Court Cases 339. 6. On the other hand, on behalf of the respondents-State it is submitted that possession of the land in fact has been taken. An Affidavit has been filed by one Mr.Mahendra B. Warbhuvan, Additional Collector and Competent Authority (ULC) Greater Mumbai. In the said Affidavit, it is set out that as per office instructions and general practice, in the absence of declarant or their representative, the concerned City Survey Officer has reported that he has taken ex- parte possession of the S.V.L and has submitted possession receipt to the office. It is further set out that after receiving possession receipt of the S.V.L from the concerned City Survey Officer and as provided under Section 11(7) of the Act, office had 7 issued notice to the declarant calling upon him to submit his claim and to determine the compensation of the S.V.L. acquired under Section 10 of the ULCR Act, 1976. It is, therefore, submitted that in fact, possession of the land defacto has been taken. Once possession of the land is taken, the land vests in the Government in view of the Judgment of this Court in the matter of Voltas Ltd. & anr. vs. Additional Collector and Competent Authority, Thane Urban Agglomeration and others decided on 25th July, 2008 in Writ Petition No.8356 of 2006. 7. The learned counsel for the petitioners points out that though, this Court in Writ Petition No.1000 of 2008 in the matter of Namdev B. Kamble and ors. Vs. The Additional Collector and Competent Authority, ULC, Nashik and others has relegated the period of the suit on the ground that there are disputed questions of fact, the 8 respondents in fact are raising a plea before the Civil Court that the Civil Court has no jurisdiction. It is, therefore, submitted that considering the stand taken by the respondents they should not be relegated to the suit. 8. In answer to this contention, on behalf of the respondents-State the learned Government Pleader on instructions states that they will not raise a plea that the Civil Court has no jurisdiction to entertain and decide the issue as to who was in possession of the land and consequent declaration as to the status of the land. 9. We have heard the learned counsel for the parties. In our opinion, the petition does raise disputed questions of fact. No doubt there are instructions issued in the matter of taking possession by drawing up of panchanama. The procedure for drawing up the 9 Panchanama is not pursuant to any provisions of the Act. The procedure being followed is merely pursuant to the administrative instructions. In such circumstances, the party complaining that the procedure was not followed will have to establish that by not following the procedure prejudice was occasioned to the petitioners. In the absence of establishing serious prejudice, it will not be possible to held if in fact possession had been taken that failure to comply with the procedure would result in that act becoming illegal. In NATIONAL THERMAL POWER CORPORATION LIMITED Versus MAHESH DUTTA AND OTHERS,(2009) 8 Supreme Court Cases 339 on which reliance was placed on behalf of the petitioners, the Supreme Court in para 39 has held that merely because there is a disputed question of fact, in the absence of oral evidence being required to be taken, the Court is not precluded from entertaining and deciding disputed question of fact. In our 10 opinion, in the facts of the present case where the stand on behalf of the respondents was that the possesssion was taken and stand on behalf of the petitioners was that the possession has not been taken, a disputed question of fact arises, where oral evidence will have to be led as to who is in possession. Insofar as the matter of Tamil Nadu Housing Board v. A. Viswam(Dead) by Lrs., reported in AIR 1996 SUPREME COURT 3377 is concerned, the provision of the Land Acquision Act and rules made thereunder, themselves provide for the manner of taking possession by panchanama. Even otherwise on a consideration of the ratio in Tamilnadu Housing Board (Supra), it has not been laid down that on failure to comply with the procedure of taking possession that would amount to failure to take possession. 10. The only question we have called upon to answer is whether under the provisions of 11 the Urban Land (Ceiling & Regulation) Act, 1976 is there any power or jurisdiction to the Civil Court in deciding the controversy as to whether the possession of the land was taken or not. Our attention was invited to Section 33(3). That pertains to validity of the Order passed in Appeal. It does not oust the jurisdiction of the Civil Court or prohibit the Civil Court from exercising jurisdiction to decide the issue of possession. Therefore, a Civil Court is the competent Court to decide this issue. Normally in the absence of jurisdiction in the Civil Court this Court exercises its extra ordinary jurisdiction, as the party otherwise may have no remedy at law. This Court on such occasions exercise its extra ordinary jurisdiction as no party can be left without a remedy at law. However, considering our finding that the Civil Court has jurisdiction to decide the controversy, in our opinion, this would not be a fit case for this Court to exercise its extraordinary 12 jurisdiction. The issue as to who is in possession and consequential declaration is left open for the decision by the Civil Court. 11. Rule is made absolute accordingly. No order as to costs. In order to enable the petitioners to move the Civil Court, the respondents are directed for a period of eight weeks from today not to take steps inso far as the land is concerned. (C.L.PANGARKAR, J.) (F.I.REBELLO, J.)