Bombay High Court
Bharat Maganbhai Kheta And 5 Others vs Nagpur Improvement Trust And 5 Others on 16 June, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
mca232.97 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
MISC. CIVIL APPLICATION NO. 232 OF 1997
IN
WRIT PETITION NO. 476 OF 1983
1. Bharat s/o Maganbhai Kheta,
aged about 35 years, occupation
- Business, r/o Dhantoli, Nagpur.
2. Prakash s/o Maganbhai Kheta,
aged about 30 years, occupation
Business, r/o Dhantoli, Nagpur.
3.
Pramod s/o Morarjee Kheta,
aged about 35 years, occupation
Business, r/o Fulchur Road,
Gondia, District - Bhandara.
4. Naresh s/o Morarjee Kheta,
aged about 28 years, occupation
Business, r/o Fulchur Road,
Gondia, District - Bhandara.
5. Anil s/o Trimbaklal Kheta,
aged about 26 years, occupation
Business, r/o Jabalpur (M.P.).
6. Sanjay s/o Vasanjee Kheta,
aged about 24 years, occupation
Business, r/o Jabalpur (M.P.). ... APPLICANTS/
PETITIONERS.
Versus
1. Nagpur Improvement Trust,
Nagpur through its Chief
Executive Officer, Nagpur.
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2. Special Land Acquisition Officer
(Nagpur Imrovement Trust),
Trust Building, Nagpur.
3. The Competent Authority
appointed under the Urban Land
(Ceiling and Regulations) Act, 1976,
notified for "Nagpur Urban
Agglomeration", Collectorate
Complex, Civil Lines, Nagpur.
4. Shri Laxmikant s/o Ramchandra
Chakkarwar, aged about 43 years,
occupation - Business.
5. Shri Ashok s/o Ramchandra
Chakkarwar, aged about 40 years,
occupation - Business.
Both residents of V-102, Narendra
Nagar, Nagpur, Tahsil & District -
Nagpur.
6. Shri Ganesh s/o Ramchandra
Chakkarwar, aged about 54 years,
occupation - Business, r/o V-102,
Narendra Nagar, Nagpur, Tahsil
& District - Nagpur.
7. Shri Vijay s/o Gowardhandas
Agrawal, aged about 58 years,
occupation - Business, r/o Krishna
Apartments, Dhantoli, Nagpur,
Tahsil & District - Nagpur.
8. Shri Shankarrao s/o Jairamji
Diote, aged about 63 years,
occupation - Business, r/o c/o
Rachana Construction Co. Ltd.,
153/B, Shivaji Nagar, Tahsil &
District - Nagpur, acting through
his duly constituted Attorney
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Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
9. Smt. Godavaridevi w/o Goverdhandas
Agrawal, aged about 74 years,
occupation - Housewife, r/o Krishna
Apartment, Dhantoli, Nagpur,
Tahsil & District - Nagpur.
10. Mrs. Pushpalata w/o Ganesh
Chakkarwar, aged 39 years,
occupation - Business, r/o V-102,
Narendra Nagar, Nagpur,
Tahsil & District - Nagpur.
11. Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
12. Smt. Sheela w/o Shankarrao Diote,
aged about 60 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur acting through his duly
constituted Attorney
Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
13. Smt. Nilima w/o Shridhar Diote,
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aged about 37 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur acting through his duly
constituted Attorney
Shri Shishir s/o Shankarrao Diote,
aged about 39 years, occupation
Business, r/o c/o Rachana
Construction Co. Ltd., 153/B,
Shivaji Nagar, Tahsil & District
Nagpur.
14. Mrs. Arti w/o Indrapal Hora,
aged about 36 years, occupation
Business, r/o c/o Byramji Road,
Nagpur, Tahsil & District - Nagpur
acting through his duly constituted
Attorney Shri Yashpal s/o
Vidyabhushan Seth, aged about
64 years, occupation - Business,
r/o Byramji Road, Nagpur,
Tahsil & District - Nagpur.
15. Mrs. Reena Seth w/o Shri Mannu Seth,
aged about 34 years, occupation
Housewife, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur
acting through his duly constituted
Attorney Shri Mannu Seth s/o Late
Shri Ajit Seth, aged about 37 years,
occupation - Business, r/o Byramji
Road, Nagpur, Tahsil & District -
Nagpur.
16. Shri Amit Seth s/o Late Shri Ajit Seth,
aged about 30 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur.
17. Shri Yashpal Seth s/o Late Shri
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Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur, Tahsil &
District - Nagpur.
18. Mrs. Priti Goel w/o Shri Sumeet
Goel, aged 28 years, occupation
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through his duly constituted
Attorney Shri Yashpal Seth s/o
Shri Vidyabhushan Seth, aged about
60 years, occupation - Business, r/o
34, Byramji Road, Nagpur, Tahsil &
District - Nagpur.
19.
Shri Mannu Seth s/o Late Shri Ajit
Seth, aged about 37 years,
occupation - Business, r/o 34,
Byramji Road, Nagpur, Tahsil
& District - Nagpur.
20. Shri Raju s/o Laxmikant Itkelwar,
aged about 32 years, occupation
Business, r/o Old Mangalwari,
Nagpur, Tahsil & District - Nagpur
being the partner of M/s. Chintamani
Developers, a registered partnership
firm having its office at NKY Tower,
Ajni Square, Wardha Road, Nagpur,
Tahsil & District - Nagpur.
21. Mrs. Parveen w/o Yashpal Seth,
aged 57 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
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Tahsil & District - Nagpur.
22. Mrs. Ritpa w/o Ajit Seth,
aged 63 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 60
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
23. Mrs. Deepika w/o Nikhil Khera,
(Nee Ms. Deepika Yashpal Seth),
aged about 28 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Yashpal Seth s/o
Vidyabhushan Seth, aged about 64
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
24. Mrs. Deepti Seth w/o Amit Seth,
aged 25 years, occupation -
Business, r/o 34, Byramji Road,
Nagpur, Tahsil & District - Nagpur,
acting through her duly constituted
Attorney Shri Amit Seth s/o Late
Shri Ajit Seth, aged about 30
years, occupation - Business, r/o
34, Byramji Road, Nagpur,
Tahsil & District - Nagpur.
25. Shri Yashpal Seth (H.U.F.)
through Karta Shri Yashpal w/o
Vidyabhushan Seth, aged 64 years,
occupation - Business, r/o 34,
Byramji Road, Nagpur, Tahsil &
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District - Nagpur.
26. Ujwal Jyoti Co-operative Housing
Society Ltd., Nagpur, a registered
Society duly registered under the
Maharashtra Co-operative Societies
Act, 1960 (XXIV of 1961) bearing
Registration No.NGP/CTY/HSG/TC/
399/89-90, having its office at 253
Laxmi Nagar, Nagpur, through its
Hon'ble President Mrs. Anuradha
Jayant Joshi, aged about 60 years,
occupation - Housewife, r/o T-10,
Rathsaptami Apartment, Flat No. 4,
Laxminagar, Nagpur.
27.
Ujwal Co-operative Housing Society
Ltd., Nagpur, bearing Registration No.
NGP/HSG/249, having its office at
Gurukunj, 30, Ramkrishna Nagar,
Khamla Road, Nagpur, acting through
its Secretary Shri Pradip Martandrao
Mandlekar, aged about 58 years,
occupation - Retired Private Service,
r/o C-207, Bajrang Complex,
Siraspeth, Umred Road, Nagpur. ... RESPONDENTS
Shri Anand Parchure, Advocate for the applicants/ petitioners.
Shri S.K. Mishra, Senior Advocate with Shri Dengode, Advocate for
respondent Nos. 1 & 2.
Shri N.R. Patil, AGP for respondent No. 3.
Shri D.V. Siras, Advocate for respondent Nos. 4 to 25.
Shri D.V. Chauhan, Advocate for respondent Nos. 26 & 27.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JUNE 16, 2016.
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JUDGMENT :(PER B.P. DHARMADHIKARI, J.) The matter was heard in open Court on 15.06.2016 and 16.06.2016 and after due deliberations, we rejected the Misc. Civil Application, mentioning that the reasons shall follow. These reasons have been recorded accordingly.
2. The review applicants - the original petitioners, addressed arguments orally and also wanted this Court to peruse written notes of arguments. We made it clear that if no written notes of arguments were filed by the other side, the matter would be decided in the light of oral arguments advanced. Only to the extent of points argued orally, we have perused the applicants' notes of arguments.
3. Writ Petition No. 476 of 1983 was filed by the review applicants seeking quashing of Sakkardara Street Scheme floated by Respondent Nos. 1 & 2 - Nagpur Improvement Trust. It is not in dispute that Notification under Section 39 of Nagpur Improvement Trust Act, 1936, (equivalent to Section 4 of the Land ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 9 Acquisition Act, 1894), was published on 02.02.1964 and Section 45 notification (equivalent to Section 6 of Land Acquisition Act, 1894) was published on 03.09.1967. By judgment dated 28.10.1991 delivered in a bunch of matters, other writ petitions were allowed, Writ Petition No. 476 of 1983 came to be dismissed.
Shri Parchure, learned counsel for the applicants/ petitioners explained that it was on account of the applicants/ petitioners resorting to remedy under Section 18 of the Land Acquisition Act, 1894 for enhancement of compensation.
4. Challenging this judgment dated 28.10.1991, the applicants approached the Hon'ble Apex Court in Special Leave Petition (C) No. 8266 of 1992. The SLP was decided on 11.03.1996. The Hon'ble Apex Court noted that High Court passed its judgment as an earlier writ petition was dismissed with liberty to file fresh. The reason for withdrawal of that writ petition was, attachment of the compensation by the income-tax authorities and since then the land holders had not taken any steps, till the possession was taken from them on 23.07.1981. Before the ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 10 learned Apex Court, the review applicants disputed (1) the statement regarding the reason for withdrawal; and (2) fact that the possession was taken. The Hon'ble Apex Court observed that if the High Court proceeded upon allegedly wrong assumption of facts, the review applicants ought to have taken appropriate action in the High Court itself. The SLP was, therefore, dismissed.
5. After this dismissal on 11.03.1996, present application for review was filed in April 1996. This review application was withdrawn on 17.05.2002 as the matter was settled between the parties out of Court. Thereafter CA(O) No. 90 of 2011 was filed for condoning delay and for recalling that order with a request to restore MCA No. 232 of 1997. On 26.09.2012, this Court condoned the delay in filing said CA(O) and ordered restoration of MCA. Thereafter review petition has been placed for hearing.
6. Shri Parchure, learned counsel for the applicants/ petitioners, in this background submits that when entire Sakkardara Street Scheme prepared by respondent Nos. 1 & 2 was ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 11 quashed and set aside by this Court, implementation of its very small portion on lands of the petitioners could not have been allowed and hence the dismissal of Writ Petition No. 476 of 1983 is unwarranted. He has relied upon the judgment of the Hon'ble Apex Court in the case of Greater Noida Industrial Development Authority vs. Devendra Kumar & Ors., reported at (2011) 12 SCC 375, paragraphs 48 & 49; State of M.P. & Ors. vs. Vishnu Prasad Sharma & Ors., reported at AIR 1996 SC 1593 (1), paragraphs 13 & 21 and Delhi Development Authority vs. Sudan Singh & Ors., reported at (1997) 5 SCC 430, paragraphs 1 & 2, to substantiate his contention. He adds that same relief as given to others could not have been declined also needed to be extended to the review applicants. He further adds that Respondent Nos. 1 & 2 have taken possession of only part of land and constructed upon it, the remaining land is still vacant and available. The said vacant part can be restored to the applicants/ petitioners. As possession was never taken in accordance with law, the land owners have not been paid compensation and they also did not hand over possession. The land never vested with the respondents. By inviting attention to ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 12 possession receipt dated 19.03.1981, he contends that it is signed only by the authorities and owners have not placed signature upon it. The receipt is, therefore, not binding upon them. The electricity bills placed on record are also pressed into service to show that even in the year 2010, the property was in their possession. The inspection report obtained from an Architect on 17.08.1992 is relied upon to urge that there also possession of the applicants' can be seen.
7. Our attention is drawn to reply filed on behalf of the Nagpur Improvement Trust to show that it claims that possession was taken on 23.07.1981. It is submitted that on record of this review petition, three death certificates are produced which show that owners were not alive on 23.07.1981 and as such, no notice could have been served upon them. The possession allegedly taken is, therefore, without authority of law and bad.
8. Inviting attention to orders dated 08.12.1982 in Writ Petition No. 2461 of 1982, the learned counsel submits that this ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 13 Court had granted interim orders in relation to 62 plots and on 22.03.1983, stay was granted in petitioners' matter which continued to operate till 28.10.1991. Hence, the subsequent third party interests created by Respondent Nos. 1 & 2 are contrary to High Court orders and intervenors before this Court do not get any legal right and status.
9. Inviting attention to the judgment delivered by this Court on 28.10.1991, Shri Parchure, learned counsel submits that discussion therein in paragraphs 33 to 37 is mostly on the point of estoppel and only on that ground, petition came to be dismissed while allowing other petitions. He is relying on the judgment of the Hon'ble Apex Court in the case of Vyalikaval Housing Building Co-operative Society by its Secretary vs. V. Chandrappa & Ors., reported at (2007) 9 SCC 304, to urge that in such matters delay and acquiescence are held to be not relevant. The judgment of Delhi High Court in the case of M/s. Moghul Travels and Transport Co. (P) Ltd. vs. Union of India & Ors., reported at AIR 1990 Delhi 56, is pressed into service to urge that when basic notifications are ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 14 quashed, benefit thereof shall be enure favour of all. The judgment of the Hon'ble Apex Court in the case of Ramchand vs. Union of India, reported at (1994) 1 SCC 44, is relied upon by him to urge that this Court can mold the relief to be given to the applicants in such circumstances but their petitions could not have been totally dismissed. Notifications are entirely quashed & the same can not be used to their prejudice.
10. Shri S.K. Mishra, learned Senior Advocate on behalf of respondent Nos. 1 & 2 submits that review can be asked for only in limited circumstances. The arguments advanced do not make out any case for invoking that jurisdiction. Not only this, new documents have been filed for the first time on record of review petition without seeking leave and without pointing out why those documents could not be filed earlier. The Hon'ble Apex Court has, while dismissing the SLP on 11.03.1996, employed the word "if"
and thus, there is no "finding" as such by the Hon'ble Apex Court.
The review filed, simply on the strength of that order is misconceived and untenable. As review applicants cannot reach ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 15 notifications either under Section 39 or Section 45 of Nagpur Improvement Trust Act, their attempt to have it quashed cannot succeed. He has taken us through the judgment delivered in the matter and explained why writ petition filed by the review applicants was required to be dismissed. He submits that all seven petitioners then before the Division Bench did surrender their lands for public purpose of developing Ring road and as such, that ring road has been constructed. Part of land of the applicants was allotted to the Provident Fund department where its Regional Office has come up. He denies that only possession of part of the applicants' land was taken by Respondent Nos. 1 & 2.
11. To demonstrate that review can be undertaken only if there is an apparent error, he draws support from the judgment of the Hon'ble Apex Court in the case of N. Anantha Reddy vs. Anshu Kathuria & Ors., reported at (2013) 15 SCC 534; and M/s.
Northern India Caterers (India) Ltd., vs. Lt. Governor of Delhi, reported at AIR 1980 SC 674. He further submits that the impugned judgment of Division Bench of this Court does not refer ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 16 to only Section 18 proceedings but there are other reasons recorded by it. The High Court has accepted that award was stayed on 10.02.1975 and it did not doubt that the possession was taken on 23.07.1981.
12. Shri Mishra, learned Senior Advocate highlights the fact that the applicants do not complain of any Contempt of Court or point out violation of any Court order by the Nagpur Improvement Trust. He submits that in any case, land acquired in accordance with law, cannot be given back to owners and it needs to be disposed of as per NIT's Land Disposal Rules, 1983. He relies upon the judgment of the Hon'ble Apex Court in the case of State of Kerala & Ors. vs. M. Bhaskaran Pillai & Anr., reported at AIR 1997 SC 2703.
13. According to him, conduct of review applicants/ petitioners in present facts is sufficient to deny them any relief.
After delivery of judgment on 28.10.1991, SLP was disposed of on 11.03.1996 and the review came to be filed on 08.04.1996. This ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 17 review application was withdrawn on 17.05.2002 because the petitioners then had applied for regularization of lay out which had come up on their lands under the Gunthewari Development (Regulation, Upgradation and Control) Act, 2001. The application was submitted in the year 2002. This request for regularization came to be rejected on 27.12.2010 and after getting knowledge that regularization on acquired land cannot be allowed, on 14.12.2010, the present proceedings were sought to be restored.
Had the prayer for regularization been granted & layout legalized, the present review would not have been filed. Thus, according to the learned Senior Advocate, the process of law is being abused.
14. The review applicant entered into an agreement for sale of this land on 15.09.1994 with Ujwal Cooperative Society.
On 04.04.1994, they executed Power of Attorney in favour of one Milind Mahajan. On 16.06.1995, they entered into similar agreement again. These agreements for sale were/ are unregistered. To facilitate Gunthewari Regulations, on 30.07.2002, they also executed a Deed of Confirmation. Because ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 18 there was an order of status quo in review petition and hence Gunthewari Regulations could not have been considered, the review applicants withdrew their proceedings for review on 17.05.2002.
15. The learned Senior Advocate submits that the review applicants have executed sale deeds through their Power of Attorney in favour of Cooperative Society and Cooperative Society then has allotted those plots and executed sale deeds in favour of individuals/members after 01.01.2001. He contends that in this situation, the review applicants are on one hand trying to recover possession and avoiding all their commitments with the Cooperative Society and individuals while, on the other hand, have not brought on record any material to warrant review.
16. Upon instructions, he states that the proceedings filed by them for enhancement of compensation registered as LAR No. 17 of 1982 are still pending. Shri Mishra, learned counsel, therefore, contends that this type of modus operandi must be ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 19 strictly dealt with by Court and review petition should be dismissed with exemplary costs.
17. Shri Chauhan, learned counsel, on behalf of the intervenors submits that the intervenors have purchased plots on subject land from the Cooperative Society and are in possession thereof. They have moved separate applications under Gunthewari Act for regularization, which are pending.
18. Shri Siras, learned counsel submits that he has moved applications for intervenor vide Civil Application (O) Stamp Nos.
4388 and 4389 of 2015 and those applications need to be allowed.
The names of purchasers have been mutated in revenue records because of sale deeds in their favour. The review applicants have attempted to introduce new material on record without any justification and that material cannot be looked into.
19. In reply arguments, Shri Parchure, learned counsel submits that the Power of Attorney in favour of Milind Mahajan ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 20 was for limited duration with an object of getting the land released from the Nagpur Improvement Trust and its acquisition. After expiry of stipulated time that power of attorney ceased to operate.
However, Shri Mahajan high handedly and illegally entered into certain transactions which are not binding upon the review applicants. He admits that Reference Case No. 17 of 1982 is still pending. He further, upon instructions, states that no Civil Suit challenging unauthorized sales of Shri Mahajan has been filed. He further submits, upon instructions from the first applicant Shri Bharat, that a certificate of Shri Inamdar, Chartered Accountant stating that there was no order of attachment of compensation amount, issued by Income Tax department, was filed along with SLP before the Hon'ble Apex Court.
20. The Hon'ble Apex Court has noted that the reasons recorded for withdrawal of writ petition were incorrect according to review applicants. Writ Petition withdrawn was instituted in the year 1976 and it was registered as Special Civil Application No. 4436 of 1976. The direction to Nagpur Improvement Trust to pay ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 21 compensation amount forthwith after taking possession of land was sought in it. This was withdrawn with liberty to file fresh on 20.12.1976. The reason for withdrawal of that writ petition was attachment of compensation amount by the Income Tax department. Thereafter, the possession was taken by Nagpur Improvement Trust on 23.07.1981. Though, before the Hon'ble Apex Court a certificate issued by the Chartered Accountant Shri Inamdar is claimed to have been filed, it is not produced before this court and our attention has not been invited to any such document. As such, the first point disputed before the Hon'ble Apex Court cannot be said to be established here in this proceeding.
21. The petitioners, thereafter submitted before the Court that possession was not taken. This submission needs to be appreciated in the backdrop of facts which are looked into by the Division Bench of this Court in its judgment dated 28.10.1991 in Writ Petition No. 476 of 1983. That writ petition was filed on 10.01.1983, after advertisement was published by the Nagpur ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 22 Improvement Trust, inviting applications for purchase of flats by intending buyers of specified class or classes. Thus, after NIT took possession on 23.07.1981, the review applicants waited for more than 1½ years. The burden was, therefore, heavy upon them to show that the possession was not taken. This judgment of the Division Bench was questioned in SLP before the Hon'ble Apex Court. In paragraph 33, the Division Bench of this Court has observed that one such document is dated 29.05.1981, raising objections to taking possession. The petitioners before it admitted service of notice for delivery of possession. There was another document, a letter dated 24.07.1981 written by the Managing Trustee of Shamji Kheta Estate. This letter admitted that the possession was taken a day before i.e. on 23.07.1981 and requested removal of immovable from the premises in the presence of officers of NIT. The Division Bench has found that these documents were sufficient to hold that NIT had taken possession of entire 42.88 Acres of land on 23.07.1981. This appreciation of documents dated 29.05.1981 and letter dated 24.07.1981 has not been even touched by the review applicants. There are no ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 23 arguments to demonstrate that this consideration in paragraph 33 of its judgment dated 28.10.1991 in Writ Petition No. 476 of 1983 by the Division Bench is perverse.
22. The death certificates produced on record of review petition are issued on 10.06.1969, 03.08.1974 and 27.05.1980.
Thus, these documents were very much available with the review applicants when they filed Writ Petition No. 476 of 1983. There is absolutely no justification for not using these documents then and no explanation is offered why these documents could not be filed and pressed into service then. In the absence of such an explanation, contention that notice for taking possession was served upon alleged dead persons is unacceptable. In paragraph 33, the Division Bench has found that Managing Trustee of these applicants admitted the fact of taking possession on 23.07.1991.
In view of this finding, the effort to rely upon these documents is by way of afterthought and cannot be countenanced.
23. The review applicants have also produced on record of ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 24 this review petition, electricity bills and receipts showing payment of electricity charges. These documents are for the period from 04.06.2010 to 04.07.2010, 22.08.2011 to 22.09.2011 and 22.06.2012 to 24.07.2012. If the possession was not taken on 23.07.1981, the documents showing payment of electricity charges, other charges like property tax pertaining to said property for the period from July 1981 onwards could have been presented to this Court with proper explanation. Regular payments ought to or could have been pointed out in writ petition itself. Producing such documents for a period which is about 20 years after the date of taking possession, that too without any explanation, cannot be accepted.
24. The fact that the petitioners withdrew MCA No. 232 of 1997 on 17.05.2002, that they executed Deed of Confirmation on 30.07.2002, that there was effort to obtain regularization of lay out under Gunthewari Act, are not in dispute. Though, the grievance is made against the Power of Attorney one Mahajan, regularization under Gunthewari Act was pursuant to his acts only. No Civil Suit ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 25 has been filed by the review applicants, questioning any of the documents executed by him purportedly on their behalf. In this situation, filing of such electricity bills also does not advance the cause of review petitions in review jurisdiction.
25. The conduct of review applicants show that in 1976, they were interested in prompt payment of compensation to them.
Writ Petition filed by them came to be disposed of after the fact of attachment of compensation was pointed out to the Court.
Thereafter, they did not object to taking of possession by NIT on 23.07.1981. They filed writ petition more than 1½ years thereafter questioning the acquisition. After dismissal of writ petition, review was filed and that review was also withdrawn on 17.05.2002. The fact of unregistered agreements with the Cooperative Societies and execution of Power of Attorney by them after dismissal of their writ petition and during the pendency of SLP before the Hon'ble Apex is not in dispute. It is in this background that we have to appreciate the stand that as basic notifications dated 02.02.1964 and 03.09.1967 have been quashed and set aside, the petition filed by ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 26 the review applicants vide Writ Petition No. 476 of 1983 could not have been dismissed.
26. In the case of Greater Noida Industrial Development Authority vs. Devendra Kumar & Ors., (supra), the Hon'ble Apex Court has observed that the acquisition was found to be a colourable exercise of its power by the State Government. Here, there is no such finding, on the contrary all the petitioners had parted with possession of part of their lands to enable the NIT to construct a Ring road upon it and it has been so constructed. The review applicants did not oppose construction of the ring road & never objected to taking of possession by NIT at all.
27. In the judgment in the case of State of M.P. & Ors. vs. Vishnu Prasad Sharma & Ors., (supra), the Hon'ble Apex Court found that Section 4 and Section 6 notifications are the basis of all proceedings which follow. It has been held that there cannot be successive notifications under Section 6 with respect to land specified in one notification under Section 4(1) of the Land ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 27 Acquisition Act.
28. In the case of Delhi Development Authority vs. Sudan Singh & Ors., (supra), the Hon'ble Apex Court has taken note of the fact that Section 6 notification in relation to 12 villages in its entirety stood quashed on 09.03.1981. Thereafter, other bunch of writ petitions was filed claiming that though notification was quashed, the judgment of High Court was not being followed and writ petitioners were being dispossessed. Thus, there the petitioners who approached Delhi High Court were never dispossessed earlier. In present matter, the review applicants parted with possession and did not assail it till filing of Writ Petition No. 476 of 2003.
29. In the case of Vyalikaval House Building Cooperative Society by its Secretary vs. V. Chandrappa & Ors., (supra), the Hon'ble Apex Court finds that the acquisition totally to be malafide and not bonafide. The defence of delay and acquiescence by the owners therein was therefore found to be of no substance.
::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 28It found that the whole acquisition arose from a tainted notification and was vitiated. As that notification was vitiated, the appellant before it was not given any benefit.
30. In the case of M/s. Moghul Travels and Transport Co.
(P) Ltd. vs. Union of India & Ors., (supra), the learned Single Judge has found that when notification as a whole stands quashed, such judgment operates in respect to all the lands referred to in such notification.
31. Here, Division Bench of this Court has found that in 1976 itself, present review applicants attempted to obtain relief of payment of compensation to them immediately. The land acquisition proceedings have resulted in Award dated 10.12.1975.
Thus, in the face of Award, a writ was sought directing NIT to take possession and to pay compensation. The later facts looked into by the Division Bench particularly the communications dated 29.05.1981 and 24.07.1981 by land owners also show that land owners never objected to Land acquisition proceedings. In ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 29 paragraph 34, the Division Bench has found that after taking possession on 23.07.1981, various developments have been made in the area. NIT developed acquired land and spent substantial amount on it. The ground was levelled, sewer lines have been laid and first such of construction of road work was also over. The amount of Rs. 12 lakh was spent for this purpose. About 6 acres of acquired land was delivered in possession of Provident Fund department of the Union of India. On 20 Acres of land, flats were being constructed by HUDCO and a scheme for sanction of loan was already cleared. The advertisement was issued and the applications for allotment were also invited. 5461 applications were received by the NIT and along with it, it received amount of Rs.9,09,900/- as an earnest money. All these developments, therefore, show that situation has become irreversible & innocent persons who have purchased the plots or flats can not be affected.
In present facts when Sakkardara Street Scheme was not only for developing of roads but also residential localities, these developments at the cost of public on land claimed by the review applicants cannot be ignored. The status of intervenors before us is ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 30 an entirely independent issue. They claim that they are put in possession on the strength of title documents executed in their favour by their Cooperative Housing Societies. The review applicants have not filed any Civil Suit for getting such title deeds cancelled.
32. The material on record, therefore, shows that development on lands of review applicants could be undertaken and completed independent of acquisition of adjacent lands. The review applicants have not produced before this Court any map or other similar document to demonstrate that the proposed Sakkardara Street Scheme was one indivisible scheme which could not have been segregated. They have not contended that the development on adjacent lands was an integral part of development activity on their lands and all such activities being complementary to each other, needed to be developed together.
They have, therefore, not demonstrated that the development on their land was integral part of the development in other adjacent areas and could not have been undertaken separately. Hence, ::: Uploaded on - 28/06/2016 ::: Downloaded on - 30/07/2016 05:35:05 ::: mca232.97 31 quashing of the notifications mentioned supra, when proper reasons and dismissal of writ petition by Division Bench on 28.10.1991, cannot be said to be an erroneous act, open to scrutiny in review jurisdiction.
33. In this situation, we find substance in the contentions of Shri Mishra, learned Senior Advocate that the review applicants have failed to make out any case for invoking review jurisdiction.
Misc. Civil Application is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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