1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2149 OF 2010 1. Shri Vishnu Chimaji Mahadik, Age 70 years, Occ.Retired, 2. Smt.Indirabai Gopal Kadam, Age 80 years, Occ.Household, Petitioners Both R/o.Line ali, Panvel, Dist.Raigad. (Org.Plaintiffs) VERSUS 1. Prabhakar Rajaram Mahadik, Age 47 years, Occ.Business, R/o.Line ali, Panvel, Dist.Raigad. 2. Smt.rajani Rajaram Mahadik, Age 50 years, Occ.Business, R/o.Line ali, Panvel, Dist.Raigad. 3. Smt.Vijaya Vinayak Nikam, Age 52 years, Occ.Household, R/o.Nikam Wadi, Hari Niwas Circle, Behind Hari Niwas Bus Stop, Naupada, Thane. 4. Maruti Govind Mahadik, since deceased through Heirs and LRs. : 4(1). Hemant Maruti Mahadik, Age 49 years, Occ.Service, 4(2). Pradeep Maruti Mahadik, Age 47 years, Occ.Service, 4(3). Prakaswh Maruti Mahadik, Age 44 years, Occ.Service. 2 Nos.4(1) to 4(3) r/o.R/o.Nikam Wadi, Hari Niwas Circle, Behind Hari Niwas Bus Stop, Naupada, Thane. 4(4). Smt.Sayali Sunil Sawant, Age 45 years, Occ.Household, R/o.chikan Ghar, Pramod Niwas, Sayali Bungalow, Kalyan (W). 4(5). Smt.Sulochand Dattatraya Chavan, Age 52 years, Occ.Household, r/o.Narayan Pakhadi, Opp.Narayan Mandir, Shrivardhan. 5. Balkirishna Yashwant Mahadik, since deceased through Heirs and LRs. 5(1). Narayan Balkrishna Mahadik, Age66 years, Occ.Retired, R/o.Kapad Bazar, Near Ganpati Mandir, Panvel. 5(2). Sunanda Sadanand Lad, since deceased through Heirs and LRs. : 5(2)(1). Abhay Sadanand Lad, Age 50 years, Occ.Business, r/o.Bhaskar Society, 4th floor, Parnaka Haveli, Kalyan. 5(2)(2). Sushil Sadanand Lad, Age 40 years, Occ.Civil Work Contractor, R/o.Balaji Apartment, 103, 1st Floor, Naupada, Gokhale Road, Thane (W). 5(2)(3). Rajeev Sadanand Lad, Age 46 years, Occ.Civil Work Contractor, R/o.Nakhawa Chawl, 103, Room No.5, Naupada, Thane (W). 5(3). Smt.Chanda Prasad, Age 65 years, Occ.Household, R/o.C/o.Amay Sadanand Lad, Bhaskar Society, 4th floor, Parnaka Haveli, Panvel. 6. Chief Land Surveyor, C.B.D. Belapur. 7. Colony Officer, CIDCO, CIDCO Bhavan, Belapur. 3 8. Mahakali Enterprises, through proprietor Mr.Hiren Shamji Ravaria, NL-4. Surji Apartment, Building No.10, Room No.6, Sector 3, Nerul, Navi Mumbai-706. Respondents (Org.Defendants) Mr.G.S.Godbole i/by Nitin Mulye for petitioners. Mr.M.S.Lagu for respondents 1 to 3. Mr.N.V.Walawalkar i/by Jeetendra Jadhav for respondent no.8. CORAM : A.S.OKA, J. DATE : 25th March 2010 JUDGEMENT :- 1. Heard learned counsel for the petitioners, learned senior counsel for respondent no.8 and learned counsel for respondent nos.1 to 3. By this writ petition under Article 227 of the Constitution of India, the petitioners who are the original plaintiffs have challenged the concurrent orders passed by the Courts below by which the relief of temporary injunction has been denied to them by both the Courts below. 2. The petitioners have filed a suit, inter alia, for a declaration. According to the case of the petitioners, one Gangabai was cultivating the lands described in paragraph 1 of the plaint. According to the petitioners, the said Gangabai was in possession prior to 1948. The said Gangabai had 4 four sons and two daughters. The daughters were married before 1948. The names of the four sons were Chimaji, Govind, Balkrishna and Rajaram. According to the petitioners, the said Gangabai died on 20th November 1954. It is alleged that Gangabai and her four sons were residing together at the time of her death. On death of Gangabai, her estate was inherited by her four sons. It is alleged that Rajaram, one of the sons of Gangabai, was looking after the work of cultivation of the said lands as other three sons were gainfully employed elsewhere. It is contended that though only the name of Rajaram was recorded in the revenue records, considering the relations between the brothers, the other three sons did not raise any objection. It is stated that on the tiller's day i.e. on 1st April 1957, all four sons were entitled to share in the said lands. It is pointed out in the suit that the said Rajaram died on 26th June 1969 leaving behind widow, son and two daughters. As the name of Rajaram was mutated in revenue records after demise of Gangabai, the names of legal representatives of Rajaram were mutated in the revenue records. A reference has been made to an order passes under section 32G fixing the purchase price of the said lands in the name of Jankibai, widow of Rajaram. The first respondent- first defendant is the son of Rajaram. The second and third respondents (second and third defendants) are the married daughters of said Rajaram. 3. The said lands were acquired under the Land Acquisition Act,1894 (hereinafter referred to as "the said Act of 1894) for the purposes of New Bombay Project. An award was made under section 11 of the said Act of 5 1894 on 27th January 1984. It is stated that a reference under section 30 of the said Act of 1894 was made. In the said reference there was a settlement between the landlord and the family of the tenant. It was contended that the entire compensation amount payable under the award was received by Jankibai in April 1987 for herself and on behalf of members of joint family. As per the scheme of the State Government which is known as “12.5% scheme”, in addition to compensation payable under the said Act of 1814, an allotment was made of a plot in lieu of the acquired lands. According to the case of the petitioners, they co-operated with first to third respondents for allotment of the plot. Ultimately, a plot was allotted in the year 2008. On allotment, a lease was executed by CIDCO in favour of the first to third respondents as their names were appearing in revenue records. It is alleged in the plaint that the said plot was transferred by the first to third respondents in favour of a third party. There is a tripartite agreement executed on 3rd April 2008 by and between the first to third respondents, respondent no.8 and CIDCO under which assignment of the plot has been is made in favour of 8th respondent. Apart from claiming a declaration, there is a specific challenge to the lease deed dated 17th March 2008 and the tripartite agreement dated 3rd April 2008. 4. An application for temporary injunction made by the petitioners in the said suit was contested by respondents 1 to 3 and respondent no.8. It was contended that on 1st April 1957 Jankibai, widow of Rajaram, was 6 exclusively cultivating the said lands as a tenant and, therefore, an order of sale under section 32G of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the said Act of 1948") was passed in her favour. It is contended that the petitioners have no right, title or interest in respect of the said lands. The averments made in paragraph 10 of the plaint regarding settlement were denied by the first to third respondents. A reply was filed by the 8th respondent contending that the said respondent has paid total consideration of Rs.4.50 crores to the first to third respondents. It is contended that commencement certificate has been granted for development of the property and construction work has been started on the site. 5. The learned Trial Judge rejected the application for temporary injunction and the said order has been confirmed by the District Court. These are the order impugned in this Writ Petition under Article 227 of the Constitution of India. 6. The learned counsel for the petitioners submitted that it is not in dispute that Jankibai was not the original tenant and admittedly it was Gangabai who was the tenant who died on 20th November 1954. He submitted that in view of provisions of section 14 of the Hindu Succession Act, 1956, the said Gangabai had became exclusively entitled to the said lands. He stated that Gangabai was survived by four sons including Rajaram who was the predecessor of respondents 1 to 3. He submitted 7 that the Courts below have not considered the unamended section 40 of said Act of 1948 which was applicable on the relevant date. He invited my attention to the unamended section 40 and submitted that all the four sons of Gangabai were entitled to claim tenancy rights and the said Rajaram could not have claimed the tenancy rights to the exclusion of the others. He submitted that the petitioners have established their prima facie right in respect of the lands which were acquired. He pointed out the mutation entry made in the name of Gangabai recording her name as a protected tenant. He submitted that the name of Gangabai continued in the revenue records till the year 1959. He submitted that merely because the entries were made in the revenue records of the name of Rajaram and thereafter of the name of the widow of Rajaram, the other heirs of Gangabai are not deprived of right, title and interest in the lands which were acquired. He submitted that the plot in question has been allotted in lieu of the acquisition of the said lands and, therefore, the petitioners have an undivided right, title and interest in the plot. He submitted that there is an averment in the plaint in paragraph 10 regarding compromise between members of the family of Gangabai and that is the reason why no proceeding was filed earlier by the petitioners. He submitted that only on the basis of notice dated 13th March 1989, the claim of the petitioners could not have been rejected. He submitted that therefore, the Courts below ought to have granted temporary injunction. He submitted that if this Court is not inclined to grant injunction, the share of the petitioners will have to be protected and the 8th respondent cannot be permitted to 8 carry on the construction on the entire property. Without prejudice to the aforesaid contentions, he submitted that the 8th respondent be directed to include a clause in the document/agreement of creating third party rights regarding the pendency of the suit and the fact that the 8th respondent will not be entitled to claim any equity on the basis of the construction carried out by him during the pendency of the suit. 7. I have considered the submissions. In the plaint there is reference to the award dated 27th January 1984 under Section 11 of the said act of 1894 under which compensation in respect of acquired lands was granted in the name of Jankibai. In paragraph 10, a reference to a proceeding under section 30 of the said Act is made. Nothing is placed on record to show that any contention was raised by the petitioners in the said proceeding regarding their right, title and interest in the suit property. There is no material placed on record as regards any compromise which is referred to in paragraph 10 of the plaint. Paragraph 10 of the plaint records that the entire compensation was received by Jankibai on 29th March 1984. Admittedly on 30th March 1989, a legal notice was issued by the first petitioner to the said Jankibai. The said notice records that an order of sale under section 32G of the said Act of 1948 was passed in the name of said Jankibai. In the said notice it is stated that a reference has been made for apportionment by the Special Land Acquisition Officer. By the said notice the said Jankibai was called upon to pay two third share in the compensation failing which legal proceedings will be initiated. 9 8. The petitioners had acknowledged in the year 1989 that the order under section 32G of the said Act of 1948 was passed in favour of Jankibai. The award under section 11 of the said Act of 1884 was made on 27th January 1984 under which the entire compensation was made payable to the said Jankibai who admittedly received the compensation on 24th March 1984. In the year 1989, the first petitioner issued notice calling upon Jankibai to pay his share in the compensation. There are only vague pleadings in paragraph 10 of the plaint as regards alleged settlement. The allotment of the plot is in lieu of acquisition of the said lands. The petitioners have waited to approach Court of law till the plot was allotted in the names of first to third respondents. There are averments made in the plaint that after the demise of Rajaram, the names of first to third respondents along with Jankibai were mutated in revenue records. The petitioners were having knowledge about the award made under section 11 of the said Act of 1894 way back in the year 1984. Under the said Award, share in compensation was denied. In 1989, the Petitioner demanded a share in the compensation. The suit was filed by the petitioners belatedly in the year 2008 when allotment of plot in the name of respondents 1 to 3 was made. By that time, the eighth respondent had entered into a transaction with first to third respondents with consent by the CIDCO under which a sum of Rs.4.50 crores has been already paid by the eighth respondent to first to third respondents. There is a gross delay on the part of the petitioners in asserting their rights in respect of the lands 10 which were acquired. There is nothing on record to show that any proceeding was taken by the petitioner in respect of the award under section 11 of the said Act of 1894 which was made way back in January 1984. 9. Considering the gross delay on the part of the petitioners, the Courts below have declined to grant discretionary and equitable relief of temporary injunction in favour of the petitioners. Considering all these aspects, the Courts below were justified in denying the relief of injunction and for the same reasons it is not possible to accept the suggestions made by the counsel for the petitioners by way of alternative submission. The substantive suit filed by the petitioners is pending and, therefore, it is obvious that all further transactions made by respondent no.8 and all further development carried out by respondent no.8 are subject to the final outcome of the suit. 10. Subject to what is observed above, no interference is called for. The writ petition is rejected. It is made clear that all contentions of the parties in the suit are expressly kept open and findings recorded by the Courts below as well as by this Court are only tentative findings recorded for the limited purposes of considering the prayer for interim relief. 11. Learned counsel for the petitioners makes a prayer for continuation of the ad-interim relief granted on 17th March 2010. The said request is 11 opposed by the contesting respondents. The ad-interim relief granted on 17th March 2010 will continue to operate for a period of six weeks from today. (A.S.OKA, J.)