Allowed

Sudhir Chintaman Desphande and Anr. v. Union of India and Ors.

Bombay HC20 Jun 2013WP/516/2012

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition seeking compensation for land unjustly withheld by the Union of India. Upholding a 1999 order mandating market-rate compensation, the Court fixed the amount at Rs.33,58,300 plus interest to avoid further litigation, rejecting the respondent's claim that only fair rent was payable.

What did the court decide?

Respondent No.1 to pay Rs.33,58,300 with interest at 6% p.a. from 01.02.2000 and costs of Rs.10,000.

Sudhir Chintaman Desphande and Anr. Vs Union of India and… — Property and Title | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.516 OF 2012

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Sudhir C. Deshpande & Ors.

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...Petitioners

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V/s.

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Union of India & Ors.

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...Respondents

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Mr.Mohan Pungliya for the Petitioners.

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Mr.S.R. Rajguru with Mr.A.R. Varma for Respondent Nos.1, 4 and 5.

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Mr.D.A. Nalawade, Government Pleader for the State - Respondent Nos.2 and 3.

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CORAM : S.J. VAZIFDAR & R.Y. GANOO, JJ. DATE : 20TH JUNE, 2013.

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P.C. :-

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Rule. By an order dated 19.04.2012, the parties were put to notice that the matter may be disposed of finally at the admission stage. The writ petition is accordingly heard finally.

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The petitioners seek an order directing the respondents to comply with an order passed by this Court dated 14.07.1999 by paying compensation at the rate fixed by the Collector together with interest at 18% p.a.

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Respondent Nos.2 to 5 are the Collector of Bombay, State of Maharashtra, The Secretary, Ministry of Defence, Government of

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India and The Secretary, Ministry of Urban Development, Government of India respectively.

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This is a most unfortunate case. The petitioners have been driven from pillar to post and have been involved in litigation for forty years. That injustice has been done to them is clear beyond doubt. That they are entitled to compensation is admitted. The computation was carried out by the Collector himself pursuant to the orders of this Court. The compensation was in lieu of the possession of a very valuable piece of land admeasuring 473 sq. mtrs. which the respondents were unable to hand over to the petitioners.

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The only defence is regarding the quantum and not the entitlement. The Collector computed the value at about Rs.49,69,500/-, whereas according to respondent No.1, the value did not exceed of about Rs.12.00 lacs.

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The facts are as follows :-

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5(A) The petitioners are the executors of the last Will of one Chintaman Vishnu Deshpande, who expired on 13.08.1984. His wife expired on 14.12.1979. Prior to their death, they filed a Miscellaneous Petition No.285 of 1973 to release from requisition the said property which had been requisitioned by respondent No.1 under the provisions of the Defence of India Rules for defence purposes in the year 1944 and was later handed over to the State

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Government, in the year 1950.

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(B) Miscellaneous Petition No.285 of 1973 was disposed of by an order and judgment dated 24.08.1978. The learned Judge (Madon, J. as His Lordship then was) held that the requisition of the property had come to an end and issued a writ of mandamus directing the respondents, inter-alia, to hand over possession of the plot to the petitioners.

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It is not necessary to refer to the facts that preceded the filing of Miscellaneous Petition No.285 of 1973. Suffice it to state that the petitioners did not rush to the Court. For over fifteen years, they made frantic efforts to get respondent No.1 to honour the said order and judgment. During this period, respondents at one stage wanted to acquire the property and took steps in that regard. The petitioners indicated that they had no objection to the same subject to being paid compensation for the same. The respondents however, did not acquire the property. The petitioners therefore, requested the respondents to either acquire the same or to return the same to them. The Collector of Bombay issued an order releasing the land from acquisition and in fact called upon the petitioners to remain present to receive possession thereof. Despite the same, possession was not handed over to the petitioners.

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7(A). Despite the above, the respondents failed and neglected

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to hand over possession of the property to the petitioners. The petitioners were, therefore, constrained to file Writ Petition No.2445 of 1998, seeking inter-alia an order directing the respondents to hand over possession of the property to them.

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(B) This writ petition was disposed of by an order of the Division Bench of this Court dated 14.07.1999. The Division Bench held that that writ petition exemplifies the extremely tardy manner in which the Union of India moves. The Division Bench lamented the fact that the said Chintaman Vishnu Deshpande and his wife Smt.Pramila Deshpande did not succeed in getting vacant possession of the plot in their life time and that the present petitioners hoped to get possession during their life time at least. The Division Bench held that right from 17.04.1975, the Union of India had throughout been in possession of the plot; that the land had not been put to the use for which it was meant; that the land had been encroached upon and that it was the responsibility of the Union of India to clear the encroachment. The Division Bench rejected the contention of respondent No.1 that as the land had been encroached upon it was not possible for it to comply with the order dated 24.08.1978 to hand over vacant possession. The Division Bench observed that the Union of India had ample power to evict the unauthorized occupants even from the open land. The writ petition

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was therefore, allowed. Rule was made absolute in terms of prayer (a) thereby directing the Union of India to hand over vacant possession of the said plot to the petitioners. Paragraph 12 of the order and judgment is important and reads as under :-

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“12. If the vacant possession of the plot is not handed over to the Petitioners within a period of six months from today, the Petitioners shall become entitled to claim from the 1^st Respondent compensation for the said plot at the market rate prevailing on that date and the Petitioners shall be at liberty to take out appropriate proceedings for recovery of such compensation.”

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(C) The Special Leave to Appeal (Civil ) No.17994 of 1999 filed by respondent No.1 against the above order and judgment dated 14.07.1999 was dismissed by the order of the Supreme Court on 15.12.1999.

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8(A). It is indeed unfortunate that respondent No.1 refused to obey the said orders and judgments of this court. The petitioners were therefore, constrained to file Execution Application No.65 of 2008 in the said Writ Petition No.2598 of 2009. On 14.07.2009 certain properties of respondent No.1 were attached pursuant to the orders passed in the execution proceedings.

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(B). Respondent No.1 filed Writ Petition No.2598 of 2009 for quashing the said execution proceedings on the ground that the market value was yet to be fixed. This writ petition was disposed of by consent of the parties by the following order :-

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“The following order is passed by consent of the parties :

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i. The attachment levied on the property is raised and the attachment proceedings initiated by the Respondents and impugned in this petition are set aside.

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ii. In pursuance of paragraph 12 of the order dated 14th July, 1999 passed by the Division Bench of this Court in Writ Petition No. 2445/1990, the Collector or any other person nominated in this behalf shall determine the compensation for the said plot at the market rate prevailing on 14th January, 2000.

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iii. The Respondent Nos. 1 and 2 shall file their claim applications on or before 9th September, 2010 and the Petitioners shall file their response thereto on or before 20th September, 2010.

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iv. The Collector and or the official nominated by him shall hear the parties on 23rd September, 2010 at 3 p.m. and dispose of the matter on or before 4th October, 2010.

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v. All contentions of the parties are kept open.

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vi. The Writ petition is accordingly disposed of with no order as to costs.”

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The Deputy Director has filed an affidavit dated 12.03.2013 stating that pursuant to the order dated 30.08.2010, the Collector, Mumbai Suburban District, nominated the Deputy Collector ( Land Acquisition) No.4 as the officer for the purpose of valuation.

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The Deputy Collector held a meeting between the petitioners, Executive Engineer and the respondents on 23.09.2010.

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The petitioners and respondent Nos.1 and 2 filed their respective pleadings. The affidavit states that the valuation report was also called for from the Assistant Director of Town Planning, Mumbai who submitted his valuation report on 01.12.2010. On 03.12.2010, the Deputy Director communicated the valuation of the land made by him at Rs.49,69,500/- to all the concerned parties.

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It is clear therefore, that the only question that arises and indeed can arise is the valuation and nothing else. All other issues stood concluded by the aforesaid orders and judgments of this court. At the cost of repetition, the order dated 30.08.2010 regarding valuation was passed by consent of the parties.

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Mr.Rajguru submitted that pursuant to the order and judgment dated 14.07.1999, respondent No.1 made efforts to obtain possession but could not do so for no fault of theirs.

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The submission is unsustainable for more than one reason. Firstly, respondent No.1 was granted by the said order and judgment dated 14.07.1999 six months time to obtain possession. The order provided for payment of compensation only in the event of respondent No.1 being unable to hand over possession within six months. Respondent No.1 never made an application for extension of time. In any event, more than reasonable time had expired since the order and judgment dated 14.07.1999. It is now fourteen years

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since then.

Secondly, this argument is not open to respondent No.1 in view of the order dated 30.08.2010 passed by the consent of the parties. By the said order, which we have set out earlier, the parties agreed that the Collector or any other person nominated in this behalf shall determine the compensation for the said plot at the market rate prevailing on 14.01.2000 i.e. six months after the date of the said order and judgment dated 14.07.1999.

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Thirdly, as noted by the Division Bench in the order dated 14.07.1999, the property had been in possession of the Union of India from the year 1945 throughout. It was therefore, the responsibility of the Union of India to ensure that there were no encroachments. By the said orders and judgments, they were bound to hand over vacant possession of the property.

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Mr.Rajguru then submitted that compensation must only be fair rent and not market value.

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This submission is also unsustainable in view of the said order and judgment dated 14.07.1999, paragraph 12 whereof required respondent No.1 to pay compensation for the said plot “at the market rate”. That judgment has attained finality. Respondent No.1's appeal against the same was dismissed by the Supreme Court.

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Moreover the order dated 30.08.2010 which was passed

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by consent of the parties also recorded that compensation for the plot “at the market rate prevailing on 14.01.2000” would be determined by the Collector or any other persons nominated in this behalf.

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Lastly, Mr.Rajguru submitted that the Collector did not afford the respondents an opportunity of dealing with the valuation report. As is evident from the affidavit of the Deputy Collector, it was only after the hearing before the Deputy Collector on 23.09.2010, that the Assistant Director of Town Planning, Mumbai submitted his valuation report on 01.12.2010. We will assume that the first respondent was not afforded an opportunity of dealing with that valuation report dated 01.12.2010. A compilation of documents was handed over by Mr.Nalawade, the learned Government Pleader for respondent Nos.2 and 3 viz. the Collector of Bombay and the State of Maharashtra. The same is taken on record and marked “X” collectively. The compilation contains inter-alia a copy of the petitioners' claim application for the sum of Rs.62,81,000/- supported by a valuation report of Sykes & Divecha, a Government approved surveyor.

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Mr.Rajguru submitted that the petitioners had themselves valued the land at only Rs.7100/- per sq. yard but had wrongly calculated the area of the land and that if the correct measurement was taken into consideration even according to the petitioners' the

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valuation, would be only Rs.33,58,300.

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Normally we would have been inclined to direct the Deputy Collector to hear the parties again and pass a fresh order, as respondent No.1 did not have an opportunity of dealing with the valuation report dated 01.12.2010. However, in the facts and circumstances of this case, we are not inclined to do so. Firstly, the original owners and the petitioners have been litigating for forty years. The owners had been pressing their claims for over fifty years from the year 1957. They have been deprived of the possession of the land as well as compensation in respect thereof despite having succeeded in every proceeding. There is nothing on record that indicates any lack of bona-fides on the petitioners' part. Respondent No.1 has consistently managed to avoid complying with the orders of this Court.

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Secondly, the petitioners and respondent No.1 were heard by the Deputy Collector pursuant to the consent order dated 30.08.2010. Although the valuation report dated 01.12.2010 was obtained after the hearing on 23.09.2010, the respondents never challenged the same on any ground. They did not contend that the valuation report could not have been relied upon, as they did not have an opportunity of dealing with the same. The determination of compensation by the Collector's nominee as per the order dated

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30.08.2010 was made on 03.12.2010. The computation was disputed only in this writ petition, which was filed on 29.02.2012. It was disputed in an affidavit dated 23.01.2013 i.e. over two years after the computation was carried out and only after this writ petition was filed.

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It is also pertinent to note that the computation was not carried out mechanically. An application was in fact made by the Deputy Collector for extension of time to comply with the order dated 30.08.2010. The Deputy Collector stated that he had heard both the parties on 23.09.2010. He thereafter addressed letters to the Town Planning department, who informed him that they would require two months for submitting the report. He therefore, sought two months extension for complying with the order dated 30.08.2010. The valuation has been done by the Deputy Collector. There are no allegations of mala-fides against him. It is also pertinent to note that even as per the ready reckoner, the rate is about Rs.33.00 lacs.

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In our view, in these circumstances, it would be a travesty of justice to drive the petitioners to another round of time consuming and expensive litigation. We are convinced that the valuation at Rs.49,69,500/- is fair. However, to leave no room for grievance, we will allow the compensation as per the petitioner's alleged valuation of only Rs.33,58,300/- as there is no rejoinder to the first respondent's reply containing this averment. This at least was the

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subject matter of the hearing before the Deputy Collector on 23.9.2010.

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The writ petition is disposed of by ordering respondent No.1 to pay the petitioners, a sum of Rs.33,58,300/- together with interest thereon at 6% p.a. from 01.02.2000 till payment. Respondent No.1 shall pay to the petitioner costs fixed at Rs.10,000/- by 31.8.2013. In the event of delay in payment before 31.8.2013, respondent No.1 shall pay interest on the said amount @ 12% per annum.

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(R.Y. GANOO, J.) (S.J. VAZIFDAR, J.)

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Sudhir Chintaman Desphande and Anr. v. Union of India and Ors.

Case brief

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Sudhir Chintaman Desphande and Anr. v. Union of India and Ors.

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