Disposed

The New Reviera Co-Op. Hsg.Society Ltd. v. the Special Land Acquisition Officer and Ors.

Bombay HC27 Jan 2009WP/2469/2002

Case brief

AI extract

What is this about?

The Full Bench set aside an order enhancing compensation to legal representatives because the lessor had no title after a pre-acquisition auction. It directed recalculating land compensation shares and dividing building compensation with the lessee (Union of India). The writ petition for non-referral was dismissed due to laches.

What did the court decide?

Enhanced compensation refunded to Union of India; building compensation to be shared 60:40 between Union of India and Society; writ petition dismissed.

The New Reviera Co-Op. Hsg.Society Ltd. Vs the Special Land… — Land Acquisition | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.489 OF 1998
IN

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LAND ACQUISITION REFERENCE NO.6 OF 1995

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AND

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CROSS OBJECTION (LODG) 3 OF 2000
IN

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APPEAL NO.489 OF 1998

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Union of India.

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...Appellant

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vs.

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New Reviera Co-operative
Housing Society Ltd. & others....Respondents.

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AND

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WRIT PETITION NO.2469 OF 2002

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The New Reviera Co-op. Housing
Society Ltd.

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...Petitioner

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Vs.

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The Special Land Acquisition
officer (5)Mumbai City and
Mumbai suburban District & ors....Respondents.

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Mr.K.R.Chaudhary with Nisha Valani, for Appellant in
appeal and for respondent no.2 in writ petition.

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Mr.Sudhir Gupta i/ b. Vasant Dhawan, for Respondent
no.2 in appeal and for Respondent nos.4(i)& 4(ii)in
writ petition.

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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.

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Mr.P.G.Lad, AGP for Respondent no.3 in appeal and
cross objection and for Respondent nos.1 & 3 in writ
petition.

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CORAM: D.K.DESHMUKH & A.A.SAYED, JJ.

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DATED: 27th January, 2009.

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P.C.:-

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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

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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,

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but ultimately that challenge failed. The
proceedings for making award went on before the
Special Land Acquisition Officer who made the award

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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

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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

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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

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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

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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

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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.

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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

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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

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Society, the reference application filed by the legal
representatives was not maintainable. It is submitted

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that the sale of the property by the Corporation has
never been challenged by the legal representatives of
Rani Roopraj Laxmi.

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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.

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4.According to the learned Counsel appearing
for Union of India-the appellant and the Society, the

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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

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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

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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

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submission before us as to the validity of the
auction held by the Corporation for selling the
property.

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6.Now perusal of the order passed by the

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learned Single Judge, shows that the learned Single
Judge in paragraph 18 of the order has observed
thus:-

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“However, so far as the compensation in

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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.”

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It is clear from these observations that the learned

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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

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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

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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.

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Even assuming that the sale is invalid, unless it is
either directly challenged or collaterally challenged

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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

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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

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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.

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7.So far as the apportionment of the

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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

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Acquisition Officer in appropriate proceedings. So

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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(D.K.DESHMUKH, J.)

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(A.A.SAYED,J.)

The New Reviera Co-Op. Hsg.Society Ltd. v. the Special Land Acquisition Officer and Ors.

Case brief

What is this about?

What did the court decide?

The New Reviera Co-Op. Hsg.Society Ltd. v. the Special Land Acquisition Officer and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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