SM 1 901.ao.144.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 144 OF 2011 WITH CIVIL APPLICATION NO. 209 OF 2011 IN APPEAL FROM ORDER NO. 144 OF 2011 Veenabai Yeshwant Keni @ Bhandari ....Appellant. Versus The Municipal Corporation of Greater Mumbai ....Respondent. ____________ Mr. S. G. Karandikar i/b Nitin Muley for the Appellant. Mr. Narendra Walawalkar, Sr. Counsel with Ms. K. K. Soraan for the Respondent-BMC. CORAM: R. M. BORDE, J. DATED : NOVEMBER 17, 2011. P.C.: The appellants/original plaintiffs are taking exception to the order passed in the Notice of Motion No. 2299 of 2010 in the L.C. Suit No. 1884 of 2010 decided by the Judge, City Civil Court, Dindoshi on 10th December, 2010, whereby the Notice of Motion presented by the appellants/original plaintiffs has been dismissed. The plaintiffs have taken out Notice of Motion seeking interim injunction restraining the defendants from interfering and/or obstructing the peaceful possession and occupation of the plaintiffs over land CTS. No. 288, Survey No. 72, Hissa No. 0 admeasuring 4528.72 sq.mtrs. situate at village Kandivali, Taluka- SM 2 901.ao.144.11 Borivali. 2. According to the plaintiff, the land was possessed by his grandfather by name Govind Manya Bhandari @ Keni who claimed his tenancy right since the year 1952-53. The tenancy rights vested in Govind Manya Bhandari @ Keni were inherited by his son Yeshwant and after demise of Yeshwant, by his widow and his sons. It is further contended in the suit that the Municipal Corporation acquired in all more than 162 acres for industrial estate including the suit land. However, the industrial estate could not be established and some of the lands acquired remained in possession of the landholder and they were allowed to develop the same. The suit land, however, remained in possession of the plaintiffs. It is further contended that the plaintiffs used to take crops such as paddy and vegetables and the tenancy records also records entry in plaintiffs name upto 1983-84 in crop cultivation column. The plaintiffs apprehend dispossession at the hands of defendants as such, had approached the Trial Court seeking a decree of perpetual injunction and also tendered application for interim relief during the pendency of the suit. 3. The defendants resisted the suit by filing Written SM 3 901.ao.144.11 Statement. According to the defendants, the land has been acquired long back and award has been passed on 5th January, 1965 in respect of the acquired lands. It is also contended that after land was acquired, a mutation entry to that effect has been recorded bearing No. 1420 in favour of the Municipal Corporation. There was no access to the land as the adjoining property was developed. The Municipal Corporation has acquired the access for approaching the land so as to remove the land-lock. According to the Municipal Corporation since 5th January, 1965, the Corporation is in possession of the said property and defendants have no right, title and interest. The application tendered by the plaintiffs seeking an interim injunction was considered by the Trial Court, which came to be rejected by order dated 10th December, 2010. 3. The counsel for the appellant/plaintiff contended that the possession of the land was never taken up by the acquiring body and although the award is stated to have been passed in 1965, the revenue entry recorded by the revenue officials shows the possession of the plaintiff till the year 1983-84. The contentions of the Municipal Corporation that the possession has been taken over in the year 1965 is not substantiated by placing SM 4 901.ao.144.11 any documentary evidence on record. Although the possession has been stated to be taken over in the year 1965, there is no entry showing the possession of the defendant till the year 1975. The counsel for the appellant/plaintiff also contended that the possession of the land was never taken over by the acquiring body. In view of the discrepancy in the possession receipts placed by the Corporation on record, said evidence does not deserve any consideration. Inspite of recording of mutation entry by the revenue authorities in the name of Municipal Corporation in the year 1975, the name of the plaintiffs remain recorded in the crop cultivation column till 1983-84. 4. Reliance is placed on an order passed by the Apex Court in the matter of Prahlad Singh and others v/s Union of India and others reported in 2011 SAR (Civil) 584 and it is contended that unless it is established that actual possession of the property acquired has been taken, no presumption in respect of taking over the possession and vesting land in State Government can be drawn under Section 16 of the Act. It is thus contended that the order passed by the Trial Court is liable to be reversed. 5. The respondents opposed the contention raised by the SM 5 901.ao.144.11 appellants and supported the order passed by the Trial Court. It is contended that in the absence of the original owner or the State Government inference that the possession has not been taken over by the State Government after passing of the award cannot be drawn. It is contended that there is sufficient material placed on record in the form of possession receipt and the revenue entry recorded in favour of the Municipal Corporation to demonstrate that the possession has been handed over to the Municipal Corporation by the State Government. Had the plaintiff impleaded the State Government as a party, it would have been possible for the state to place on record the evidence regarding taking over of the possession by the State Government in pursuance to passing of the award. However, in the absence of the State Government and the original owner, the contention raised by the plaintiffs cannot be accepted. 6. The Apex Court, in the judgment of Prahlad Singh (supra) in paragraph no. 10 observed that: “We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once he Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares SM 6 901.ao.144.11 that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority.” 7. It is true that the evidence in respect of taking over the possession by the state authorities in pursuance to passing of the award is not forthcoming. But in the absence of State Government, Municipal Corporation cannot be expected to bring the evidence. But, the Corporation who has been handed over the possession by the state authority is not excepted to place on record the evidence in respect of taking over the possession by the State Government after declaration of the award. In the absence of the State Government as well as the original owner of the disputed property, the contention raised by plaintiff placing reliance on Section 16 of Act cannot be accepted. In the reported matter, there was absolutely no evidence in respect of taking over of the possession by the acquiring body and there was an abundant evidence in respect of continuous possession of the appellant before the Supreme Court. In the instant matter, the SM 7 901.ao.144.11 record shows that the award has been passed in the year 1965. The predecessor in title of plaintiff was given notice in respect of acquisition and he had caused appearance before the Land Acquisition Officer. The compensation admissible to the predecessor in title of plaintiff is determined by the Land Acquisition Officer and the amount has been deposited. The record further shows that the Municipal Corporation has been handed over the possession in respect of the disputed property by the state authorities. There is an entry indicating taking over of the possession by the Municipal Corporation. In contrast to these aspects, a feeble attempt is made to demonstrate the possession of the plaintiffs over the disputed property. As per his own saying also, the plaintiffs contend that the crop entries in respect of the said property had been recorded by the revenue officials up to 1983-84. Since thereafter, till the presentation of the suit, there is absolutely no evidence in the form of revenue entry demonstrating the present possession of the plaintiff over the suit property. 8. Reliance is placed by the counsel for the respondent on the judgment in the case of Tamil Nadu Housing Board V/s. A. Viswam (Dead) by L.Rs. reported in AIR 1996 SC 3377, in paragraph no. 9 it is observed thus: SM 8 901.ao.144.11 “It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operative in taking possession of the land.” 9. In paragraph 10 of the said judgment it is recorded that when the respondent is asserting his legal title to the acquired land, he should have impleaded Government as party and claimed his possession as against the Government. That was not done. The board having had possession from the LAO, cannot be expected to prove how the LAO had taken possession of the land. Similarly in the instant matter also, in the absence of the State Government or the original owner, it cannot be inferred that the possession was not been taken over by the State Government in pursuance to passing of the award. 10. Considering all these aspects, I am of the view that the order passed by the Trial Court does not call for any interference. The Appeal from Order is devoid of substance. SM 9 901.ao.144.11 11. Appeal from Order stands dismissed. In view of dismissed the Appeal from Order, pending Civil Application does not survive and stands disposed of. 12. The counsel appearing for the appellant prays to continue the interim order passed in his favour with a view to challenge the instant order before appellate forum. Considering the facts and circumstances of the case, it would be appropriate to grant continuation of interim order for a period of six weeks. Interim order passed by this court earlier shall remain operative for a period of six weeks from today. (R. M. BORDE, J.)