Bombay High Court
Byramjee Jeejeebhoy Pvt. Ltd. And ... vs The State Of Maharashtra And 2 Others on 25 November, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:19027-DB wp 2468-17 copy s.docx
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2468 OF 2017
1. Byramjee Jeejeebhoy Pvt. Ltd. )
a Company incorporated under the )
Companies Act, 1956, and having its )
registered office at 83, Jolly Maker )
Chamber II, Nariman Point, )
Mumbai - 400 021. )
2. Shri Madhusudan B. Vakharia )
of Mumbai, an adult In Jolly Maker )
Chamber II, Nariman Point, )
Mumbai - 400 021. ) ...Petitioners
Versus
1. The State of Maharashtra )
through the Principal Secretary, )
Revenue Forest Department )
Mantralaya, Mumbai - 400 032 )
2. The Deputy Collector (Acquisition)
No.7 Mumbai & Mumbai Suburban )
District, (previously designated as the )
Special Land Acquisition Officer (7), )
presently having office at Pradapgad )
Co-op, Housing Society, First Floor, )
Vinayak Apartment, Opp. Haffkine, )
Parel Village, Mumbai - 400 012. )
3. The Municipal Corporation of )
Greater Mumbai, through its K West )
Ward, having address at P. K. Patkar )
Marg, Bandra (W.), Mumbai-400050 )
and its Head Office at Mahapalika )
Marg, Mumbai - 400 001 )
4. Momin Gujarat Co-operative )
Housing Society Ltd. )
A Society registered under Maharashtra)
Co-operative Societies Act 1960, )
Page 1 of 48
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25 November, 2024
wp 2468-17 copy s.docx
having registered under registration )
No.BOM/K-WEST/HSG(TC)/3037- )
1987-88, registered address at 2B, )
Munawara Building, Momin Nagar, )
Moulana Asad Madni Road, )
Patel Estate Road, Jogeshwari (West) )
Mumbai - 400 102. ) ...Respondents
__________
Mr. Darshit Jain i/b. Divya Jain for Petitioners.
Mr. Abhay Patki, Addl. GP with Mr. Atul Vanarse, AGP for State/
Respondent Nos.1 and 2.
Mr. Joaquim Reis, Senior Advocate with Mr. Kunal Waghmare i/b. Mr.
Sunil Sonawane for Respondent No.3/MCGM.
Mr. Shrey Fatterpekar with Mr. Ameet Mehta, Mr. Nirav Marjadi, Mrs.
Srushti Mehta, Mr. Kushal Harnesha i/b. Solicis Lex for Respondent No.4.
Mr. Daniel Kamble, Officer of Special Duty (DP) present.
Mr. Sushant Mitkar, Assistant Engineer (DP) present.
Mr. Nikhil Parbat, Sub-Engineer(Building Proposal) Western Suburbs
present.
__________
CORAM : G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON : 04 JULY, 2024.
PRONOUNCED ON : 25 NOVEMBER, 2024.
Judgment (Per G. S. Kulkarni. J.):
1. This petition under Article 226 of the Constitution of India raises an issue in regard to non-payment of compensation to the petitioners in respect of the petitioners' land, which was acquired for a Railway Over Bridge (ROB) at Andheri, Mumbai. It is not in dispute that the land was subjected to acquisition under the provisions of the Land Acquisition Act, 1894 (for short, "LA Act"). The Special Land Acquisition Officer (for short, "SLAO")/respondent no.2 applied the urgency clause as Section 17 Page 2 of 48
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25 November, 2024 wp 2468-17 copy s.docx of the LA Act would provide and accordingly, possession of the land was taken over on 28 December, 2007. However, in the circumstances which would be discussed hereafter, the compensation is yet to be paid to the petitioners and it is on such premise that the present petition has been filed, praying for diverse reliefs, which are as follows:-
"(a) that this Hon'ble Court be pleased to issue appropriate writ, order or direction that the acquisition in connection with the subject land i.e. an area of 747 sq. mts. being CTS No. 192 (part) situate at Survey No.7, Hissa No.8 (part), Village - Bandivli, Jogeshwari, Dist:
Andheri, Mumbai, has lapsed, and that the Petitioner is entitled to restoration of the possession of the acquired land or the Respondent be directed and ordered to determine and pay to the Petitioner within a time bound schedule compensation in connection with the subject land in consonance with the provisions contained in Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(b) Strictly without prejudice to prayer (a) above:-
(i) this Hon'ble Court be pleased to issue a writ of mandamus and/or writ or order in the nature of mandamus or any other order, writ or direction, inter alia, directing the Respondents to forthwith and in any event not later than 15 days from such Order or within such time as prescribed by this Hon'ble Court file in this Hon'ble Court Reference under Section 18 and serve the same on the Petitioner;
(ii) That this Hon'ble Court be pleased to issue writ of mandamus and/or writ or order in the nature of mandamus or any other order, writ or direction, inter alia, directing the Respondents to forthwith pay to the Petitioner the said amount of Rs. 72,77,905/- with interest at 15% p.a. to be compounded quarterly from the date of taking over possession i.e. 28 th December 2007 till payment or realization;
(c) That pending the hearing and final disposal of this Petition, the Respondents be directed to pay to the Petitioner by a mandatory Order and injunction Order of this Hon'ble Court the said amount of Rs.72,77,905/- with interest at 15% p.a. to be compounded quarterly from the date of taking over possession i.e. 28 th December 2007 till payment of realization."Page 3 of 48
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2. The relevant facts need to be noted which are:
a) Petitioner no.1 is a company incorporated under the Companies Act, 1956 and indisputedly was the owner of the subject land being plot admeasuring 747 sq. mtrs., CTS No. 192 situate at Survey No. 7, Hissa No.8 (part), Village - Bandivli, Jogeshwari, District-Andheri, Mumbai.
b) It is the case of the petitioners that they were owners of the larger land in the said CTS number (CTS No. 192) admeasuring 3810.4 sq. mtrs. Out of such land, an area admeasuring 3035 sq. mtrs. was sold by the petitioners under a Deed of Conveyance dated 17 May, 1980 to one Smt. Satbai Essa Aziz (for short, 'Smt. Satbai'). Smt. Satbai thereafter sold the said land to respondent no.4-Momin Gujarat Co-
operative Housing Society Ltd. (for short, "the society").
c) A notification dated 05 February, 2007 was issued by the Additional Commissioner, Konkan Division, under Section 6 read with Section 17 of the LA Act read with Section 126 of the Maharashtra Regional and Town Planning Act, 1966 ("MRTP Act") declaring the intention of the State Government to acquire several lands for the purpose of "45.70 M. wide Road" of Municipal Corporation of Greater Mumbai ("MCGM"), which included installing a ROB, in respect of which a prior notification under Section 4 was issued on 31 August, 2006. Page 4 of 48
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25 November, 2024 wp 2468-17 copy s.docx
d) Under the said notification, 259 parcels of land were notified to be acquired. As noted hereinbefore, the petitioners' land was one of the lands at Village Bandivali, listed at item no.115. In pursuance of such notification, possession of the land under Section 17 of the LA Act was handed over by the petitioners on 28 December, 2007. A possession receipt under urgency clause was issued (annexed at Exhibit-C to the petition), which clearly shows that the possession of the land was handed over "by the petitioners" to the SLAO which was counter-signed by the representative of the MCGM being the acquiring body, "as taken over".
e) Thereafter on 15 January, 2009 the SLAO declared the land acquisition award which was received by the petitioners on 29 January, 2009. On the even date, the petitioners also received an intimation from the SLAO that under the award being declared the correct area of the land under the land acquisition award was 747 sq. mtrs. and the compensation to be paid for acquiring the petitioners' land was Rs. 72,77,905/-. The petitioners were called upon to submit all the relevant documents for disbursement of the compensation. The land acquisition award in the respective columns describes the petitioners land admeasuring 747 sq. mtrs. and the possession of the same being taken over on 28 December, 2007. In regard to the valuation of the petitioners' land, the award records Page 5 of 48
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25 November, 2024 wp 2468-17 copy s.docx thus:-
10 i) Land bearing CTS No. 192Pt area 747 Sq. Rs.49,30,200/-
mtr of Bandivli owned by M/s. Byramji Jeejibhoy Pvt. Ltd. Land valued at the rate of Rs.6600/- per Sq. mtr.
Owner has claimed TDR in lieu of compensation.
Possession of land over an 28/12/07
ii) 30% solatuim as per Sec.23(2) of land Rs.14,79,060/- Acquisition Act, (amended)
iii) 12% Addl component as per Sec.23 (I-A) Rs.2,22,710/- of Land Acquisition Act (amended) for the period from 27-9-06 to 28-12-07 = 1year 93 days Total Rs.66,31,970/-
iv) i) 9% Interest as per Sec. 34 for 1st year from Rs.5,96,877/- 29-12-07 to 28-12-08=1 year
ii) 15% Interest for the remaining period from Rs. 49,058/- 29-12-08 to 15-1-09 = 18 days.
Total Int Rs.6,45,935/-
Grand Total Rs.72,77,905/-
(emphasis supplied)
f) The petitioners were aggrieved with the quantum of the compensation as awarded, hence they made an application dated 06 April, 2009 under Section 18 of the LA Act seeking enhancement of the compensation setting out various grounds on which the enhancement would be justified. The petitioners also approached the SLAO for disbursal of the compensation in cash as granted to the petitioners under the land acquisition award. However, it appears that prior to the award, in respect of certain parties, the acquiring body (MCGM) had intended to grant Transferable Development Rights ("TDR"). On such backdrop, the SLAO addressed a letter Page 6 of 48
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25 November, 2024 wp 2468-17 copy s.docx dated 06 July, 2009 to the Executive Engineer of the MCGM informing him that the petitioners have approached the SLAO for disbursement of the compensation amount, in such context, he inquired from the Executive Engineer as to whether in regard to the acquired land of the petitioners, the petitioners had received any TDR. The SLAO requested that this be ascertained and informed to the office of the SLAO. SLAO also endorsed a copy of the said letter to the petitioners.
g) In the above context, the petitioners addressed a letter dated 20 July 2009 to the Executive Engineer (Building Proposals), MCGM that the petitioners were interested to receive payment of compensation under the land acquisition award and that they had not utilized any TDR or FSI for acquisition of their land. The petitioners hence requested the Executive Engineer to certify non receipt of the TDR by the petitioners and inform the land acquisition officer accordingly.
h) The Executive Engineer of the MCGM addressed a letter dated 05 September 2009 to the petitioners, which was in response to the petitioners' letters dated 3 August 2009 and 20 July 2009 inter alia recording that the relevant department of the MCGM was approached so as to verify whether the FSI was used in respect of the said land by M/s. Momin Gujrath Co-operative Housing Society Ltd. In response thereto, the petitioners by their detailed letter dated 31 Page 7 of 48
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25 November, 2024 wp 2468-17 copy s.docx May, 2010 informed the Executive Engineer that the petitioners were entitled for compensation of land admeasuring 747 sq. mtrs. in CTS No. 1/192 as they were the owners of such land. It was informed that the other part of the land with which the society was concerned being originally owned by the petitioners, was sold by the petitioners to Smt. Satbai, the predecessor-in-title of respondent no.4-society and the said conveyance qua such land was only in respect of area admeasuring 3035 sq. mtrs. of land comprising in CTS No. 192 (part) leaving the balance land i.e. land admeasuring 747 sq. mtrs. being retained by the petitioners and which stood acquired under the award in question. All the relevant documents in that regard were submitted by the petitioners so that an appropriate clarification in that regard can be issued to enable the petitioners to receive the compensation. It is, however, the petitioners' case that the Executive Engineer did not take any action despite repeated reminders on such issue by the petitioners. The reminder letters are also part of the record. This, according to the petitioners, unwarrantedly delayed the disbursal of the compensation in favour of the petitioners.
i) On the above backdrop, the petitioners made a detailed representation dated 30 March, 2011 to the land acquisition officer inter alia recording that the payment of acquisition compensation Page 8 of 48
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25 November, 2024 wp 2468-17 copy s.docx was wrongfully withheld for want of clarification from the acquiring body on the basis of FSI being used by the petitioners. The petitioners requested that the compensation be released in favour of the petitioners with interest at the rate of 15% from the date of passing of the award till the date of payment. The petitioners have contended that despite several letters, the Executive Engineer, MCGM failed to communicate any information in regard to the issue of utilization of FSI on such land, which according to the petitioners, was a complete non-issue.
j) In the aforesaid circumstances, the SLAO ultimately addressed a letter dated 08 February, 2012 to the Executive Engineer, Development Planning Department of MCGM inter alia recording that despite letters of the SLAO, no information on the FSI/TDR in respect of the petitioners' land was being furnished to the SLAO. It was also categorically recorded that the petitioners were requesting for disbursement of compensation of the land. The SLAO accordingly again called upon the Executive Engineer to submit such information within 8 days from the date of the said letter.
k) The petitioners have contended that the petitioners through their Architect also made an application under the Right to Information Act, 2005 in regard to the utilization of FSI, requesting the MCGM to submit plans etc. However, no action on such application was Page 9 of 48
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25 November, 2024 wp 2468-17 copy s.docx taken. The petitioners had carried the matter in appeal before the appellate authority under the Right to Information Act on which an order was passed on 24 April, 2012 directing the concerned officer to take search and give copy of the layout dated 01 November, 1990 to the petitioners from the concerned file and give final reply to the petitioners within 15 days.
l) The petitioners having received appropriate information, on 21 March, 2014, addressed a letter to the Executive Engineer inter alia recording that neither FSI nor TDR was granted to the petitioners for the acquired area of 747 sq. mtrs. in the layout sanctioned by the MCGM under No. CE/790/BSII/LO dated 01 November, 1999. It was stated that the area of CTS No. 192 has been given as 3,063.4 sq. mtrs., hence, the balance area of CTS No. 192 admeasuring 747 sq. mtrs. was shown as the petitioners' land, which was the subject matter of the acquisition. It was thus recorded that no TDR/FSI was claimed for the land under acquisition. It was therefore stated that it was clear that no TDR/FSI was claimed for the land under acquisition and even despite such clear record in the office of the Executive Engineer, the Executive Engineer was keeping quite and not replying the query of the Land Acquisition Officer. It was also recorded that as a matter of fact, the Land Acquisition Officer had taken possession of the petitioners' land admeasuring 747 sq. meters Page 10 of 48
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25 November, 2024 wp 2468-17 copy s.docx as far back on 28 December 2007 and all the documents in that regard were enclosed. It was also recorded that in such circumstances, if the petitioners did not hear from the Executive Engineer or the Land Acquisition Officer within a period of two weeks from the date of receipt of the said letter, confirming that the Executive Engineer would make payment of the awarded amount to the petitioners, the petitioners would be constrained to resort to legal proceedings. Similar reminder was addressed on 22 May 2014 to the Executive Engineer and SLAO, also on 4 July 2014 and 21July 2014.
m) In the meantime the petitioners also approached this Court by filing Reference under Section 18 of the LA Act. The petitioners have contended that the Executive Engineer (Development & Planning) of the Municipal Corporation addressed a letter dated 14 January 2015 to the SLAO as regards the inquiry made to the Executive Engineer in respect of petitioner's land Survey No.192, as to whether in lieu of compensation, TDR was granted to the petitioners stating that the Assistant Engineer (Building Proposal) of the Municipal Corporation by his letter dated 26 September 2014 has informed that in respect of the land in question admeasuring 747 sq. meters which was affected by road widening, TDR has been used for the said purpose. The said letter reads thus:-
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25 November, 2024 wp 2468-17 copy s.docx "Official Translation of the Letter "Exhibit 'CC' MUNICIPAL CORPORATION OF GREATER MUMBAI.
No. C.E./D.P./007928 and 003383/H and K Wards Date: 14th January, 2015.
Office of the Chief Engineer -
(Development Planning), 05th Floor, Municipal Headquarter, Annex Building, Mahapalika Road, Fort, Mumbai - 400 001.
Tele. No. 22620251, Extn. 2561.
Fax No. 22615217.
To, Deputy Collector (Land Acquisition) No. 7, Mumbai and Mumbai Suburban Districts, Pratapgad Co-op. Housing Society, Vinayak Apartment, Off. Haffkine Institute, Mumbai - 400 012.
Subject: Land Acquisition : Mumbai Suburban District Regarding acquisition of the land bearing C.T.S. No. 192, situated at Village - Bandivali, Taluka
- Andheri for Railway Foot Over Bridge.
Ref.: No. C.L.A. No.7 / L.A.Q.-773/Ka. Pa. 264 / 2014, dated 05.06.2014 and 30.12.2014.
Sir, Kindly peruse your letter under the aforesaid reference on the above mentioned subject. By the aforesaid letter, you have requested to inform as to whether T.D.R. has been granted to Byramjee Jeejeebhoy in lieu of the land bearing City Survey No. 192, situated at Village - Bandivali.
In this connection, you are informed as under that, this Office has already given its opinion vide its letter dated 20.05.2011 and the said opinion is self-explanatory. A copy thereof is enclosed herewith.
The Assistant Engineer (Building Proposal), has informed by his letter bearing No. Dy. Ch. E./ B.P.9140 / WS-I, dated 26.09.2014 that, the area admeasuring 747 Sq. Mtrs. getting Page 12 of 48
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25 November, 2024 wp 2468-17 copy s.docx affected by the Development Plan Road in C.S. No. 192 has been utilised in the lay-out No. CE/2492/WS/AK sanctioned by his Office. A copy of his said letter is enclosed herewith.
Submitted for your information.
Yours faithfully, sd/-
14.01.2015.
Executing Engineer, (Development Planning) Western Suburban Areas, H and K Wards."
(emphasis supplied)
n) The SLAO accepting as to what was stated by the Executive Engineer of the Municipal Corporation in the aforesaid communication by his letter dated 20 January 2015 addressed to the petitioners, rejected the petitioners' request for disbursal of the monetary compensation under the Award. The said letter reads thus:
"(Translation of a photocopy of a LETTER, typewritten in Marathi) EXHIBIT - "DD"
(Signature ) 22.08.17 DEPUTY COLLECTOR (LAND ACQUISITION) NO.7, MUMBAI AND MUMBAI SUBURBAN DISTRICT Pratapgarh Co-op. Society Ltd., Vinayak Apartment, 1st floor, Opp. Haffkin Institute, Parel, Mumbai 400012.
Phone No. 24174125,
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D.C.L.A.No.-7/LAQ 773(4)/2014/482 Date : 20.01.2015 To, M/s. Bayramjee Jeejeebhoy Pvt. Ltd., Jolly Maker Chamber No.2, 8th floor, Nariman Point, Mumbai - 400021.
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25 November, 2024 wp 2468-17 copy s.docx Subject: Land Acquisition : Mumbai Suburban District Regarding not receiving the amount of consideration in respect of the acquired land bearing C. S. No. 192 part, area admeasuring 744 sq.mt., situated at village Bandivali.
Reference: 1. Your Office Letter dated 21.03.2014
2. Letter bearing No. C.E./D.P./00792 and 003383/H & K dated 14.01.05 (2015).
Kindly peruse the above-referred letter on the above- mentioned subject. In this matter, an Award was declared on the date 15.01.2009 and the acquired land included the land bearing C.S.No.192 mentioned in the subject. As per the Award, area admeasuring 747.00 sq.mt. was acquired and the amount of Rs.72,77,905/- towards consideration, was declared under the said Award. However, in this matter, you had requested to grant T.D.R. in lieu of the above-mentioned land and therefore, the above- mentioned amount declared under the aforesaid Award was not paid to you.
In pursuance of your request under your above-referred letter, to pay the compensation amount, when this Office carried out correspondence with the Municipal Corporation making enquiry therein as to whether the T.D.R. in respect of the said land was granted, the Municipal Corporation, by the letter dated 14.01.2015 referred to hereinabove at Sr.No.2, has informed that the area adm.747.00 sq.mt. of the land bearing C.S.No.192 has been utilized in the Layout No. CE/2492/W.S./A.K. of the Corporation. Hence, your application by which you have made a request to pay compensation, is disposed of. The copy of the said letter from the Municipal Corporation is enclosed herewith for your information.
Encl : Letter dated 14.01.15.
(Signature) (Bansi Gawali) Deputy Collector (Land Acquisition) No.7 Mumbai and Mumbai Suburban Districts"
(emphasis supplied)
3. It is in the aforesaid circumstances, the petitioners have approached this Court praying for the reliefs as noted by us hereinabove. Page 14 of 48
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4. Respondent no.2/SLAO has placed on record reply affidavit of Sonali Muley, Deputy Collector (Land Acquisition) No.7 dated 12 December 2017 opposing the petition inter alia contending that the petitioners' land admeasuring 747 sq. mtrs. of CTS No. 192 (Part) at Survey No.7, Hissa No.8 (part), Village Bandivali, Jogeshwari, Mumbai along with other land was acquired by a Notification dated 10 August, 2006 published in the Maharashtra Government Gazette dated 31 August, 2006 under Section 4 of LA Act for Rail Over Bridge (ROB) at Jogeshwari. It is stated that thereafter a Notification dated 05 February, 2007 was issued under Section 6 of the LA Act, which was published in Maharashtra Government Gazette dated 22 February, 2007. It is stated that by invoking Section 17 of the LA Act, advance possession of the land was taken on 28 December, 2007. It is not disputed that the possession of the land was handed over by the petitioners. It is next stated that the acquired land was thereafter handed over to the acquiring body i.e. MCGM on 28 December, 2007. It is next stated that at the time of advance possession, as the valuation of the land was not done, amount of compensation in advance was not paid to the owner. It is stated that the petitioners being the owners, by their letter dated 01 February, 2008 (prior to the award) had claimed Transfer of Development Right (TDR) in lieu of compensation. It is stated that thereafter, after following procedure under Section 9 of the LA Act, the award was declared on 15 January, 2009 under Section 11 of the LA Act. It Page 15 of 48
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25 November, 2024 wp 2468-17 copy s.docx is stated that under the award, the market value of the petitioners' land, subject matter of the acquisition, was fixed at Rs.6600/- per sq. mtrs. and total compensation determined was Rs.72,77,905/- for the acquired land of the petitioners. However, as the petitioners had demanded TDR in lieu of compensation, the same has been recorded in the award to be payable at Re.1/-. It is stated that thereafter a notice under Section 12 of the LA Act dated 15 January, 2009 was issued to the petitioners intimating the publication of the award of the even date. It is next stated that after the receipt of the award, the petitioners by letter dated 18 February, 2009 had demanded compensation as per the award. It is stated that after receipt of such letter, the SLAO addressed a letter dated 06 July, 2009 asking MCGM to inform whether the petitioners who had earlier demanded TDR whether were given TDR so as to rule out possibility of double benefit being given to the petitioners. It is stated that MCGM by its letter dated 14 January, 2015 informed the Office of the SLAO that the petitioners' land [CTS No.202, 202(pt.), 202/3, 201/4, 200(Pt.), 193/3, 198/3 and 192 of Village Bandivali was a part of layout and FSI of 6507.08 sq. mtrs. was used for this and the said layout was developed by Mominnagar i.e. Momin Gujarat Co- operative Housing Society. It is stated that in view of such letters of MCGM, as FSI was granted for the acquired land, the office of the SLAO by a letter dated 17 March, 2015 returned the amount of Rs.76,91,662/- which included Rs. 72,77,905/- as compensation for the acquired land Page 16 of 48
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25 November, 2024 wp 2468-17 copy s.docx which is subject matter of petition along with other amounts. As there was over writing on the cheques as issued by the SLAO, the MCGM had returned the cheques and fresh cheques were issued.
5. It is stated that the petitioners thereafter addressed a letter dated 22 May, 2014 for making payment against compensation with interest upto the date of payment as the FSI for the acquired land was not consumed by the petitioners. It is stated that in response to such letter of the petitioners, MCGM vide its letter 14 January, 2015 informed that the D.P. Road setback of 747.00 sq. mtr. has been utilized in the development of building proposal u/No.CE/2492/WS/AK. It is next stated that in response to the letter of the petitioners dated 11 August, 2014 regarding the petitioners' Reference Application under Section 18, the office had requested MCGM by letter dated 27 May, 2011 to inform, if the TDR was granted to the petitioners for the acquired land. The affidavit further states that the petitioners by letter dated 21 March, 2014 addressed to MCGM, a copy of which was forwarded to the SLAO, had requested to clarify whether MCGM had granted any FSI/TDR for the land under acquisition. It is stated that the SLAO by letter dated 20 January, 2015 replied to the petitioners' letter dated 21 March, 2014 and informed the petitioners that as per the letter dated 14 January, 2015 of MCGM, FSI for area 747 sq. mtrs. of CTS No. 192 was utilized in the layout. It is stated that MCGM by its letter dated 27 November, 2017 had clearly stated that the FSI was Page 17 of 48
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25 November, 2024 wp 2468-17 copy s.docx utilized and therefore, compensation cannot be given. It is stated that insofar as respondent nos.1 and 2 are concerned, they have acted as per the provisions of law. On such premise, it is contended that the petition be dismissed.
6. A reply affidavit is filed on behalf of the MCGM of Mr. B. K. Sankhe, Assistant Engineer (Building Proposal Department), K/West (North) Ward dated 09 June 2018, opposing the petition inter alia contending that disputed questions of facts are raised by the petitioners. It is stated that MCGM had accepted the layout proposal of Momin Gujrat CHS (respondent no.4) on 22 July, 1983 under which the plots under reference (CTS No.192 and 192/1) were shown as a part of the layout. It is stated that the last layout was approved on 01 November, 1999 and that as per approved layout, CTS No.192 admeasuring 747 sq. mtrs. was shown as part of layout so as to fall under road set-back of 150 feet wide road and FSI/TDR benefit of the same was claimed on sub-plot -H bearing CTS No. 192/1 of the same layout. It is also stated that the area of CTS No. 192/1 was shown as 3063 sq. mtrs. The affidavit further states that the building file on sub-plot-H is accepted on 17 July 1985 wherein the FSI benefit of CTS No. 192 was claimed. It is stated that the area for proposal considered for approval as per revenue records i.e. the property card was considered 3810.40 sq. mtrs. (i.e. CTS No.192 admeasuring equivalent to 747 sq. mtrs.
and CTS No.192/1 admeasuring 3063.40 sq. mtrs.) It is stated that the Page 18 of 48
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25 November, 2024 wp 2468-17 copy s.docx OCC was granted on 07 March 2000, wherein the area of proposal is considered as 3035.04 sq. mtrs. i.e. net plot area of CTS No.192/1 equivalent to 2288.04 sq. mtrs and area under DP Road 747 sq. mtrs. It is stated that the deponent's office on 27 November 2015 informed the Development Planning Department that development plan (D.P.) road set- back admeasuring 747 sq. mtrs. under CTS No. 192 has been utilized under proposal No. CE/2492/WS/AK. It is stated that the Executive Engineer (Development Planning) H & K Ward vide letter dated 14 January 2015 intimated to the Deputy Collector (Land Acquisition) No.7 that since the FSI benefit is already given in the layout, the monetary compensation in favour of the petitioners shall not be released. It is, accordingly, prayed that the petition be dismissed.
7. There is a second affidavit of Shri Sushant Arjun Mitkar, Assistant Engineer (Development Plan) K/W Ward of the MCGM dated 08 January, 2024, filed on behalf of the MCGM. This affidavit reiterates the contentions of the MCGM in the reply affidavit of Ramesh Kalpnath Yadav, Assistant Engineer (Building and Proposal) dated 26 September, 2023. The affidavit makes a serious insinuation that the petitioners are trying to play fraud on the Court referring to a Conveyance Deed dated 27 June, 1962 executed by the petitioners in favour of Ebrahim Haji Essa, which according to the deponent, indicates as to what was sold by the petitioners to Smt. Satbai is a land bearing Plot No.13 of survey no.7, Hissa Page 19 of 48
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25 November, 2024 wp 2468-17 copy s.docx No.8 (pt). It is stated that the acquired property of the petitioners was reserved for ROB, which was the southern portion of plot no.4 being survey no.7, Hissa no. 8 (pt) as stated on behalf of the MCGM in the earlier affidavit. The contention is that ROB exists in the portion of the property conveyed to Smt. Satbai. In so far as the petitioners' contention that possession of the property as acquired for ROB was purportedly taken from the petitioners on 28 December 2007, it is stated that benefit of FSI in respect of portion of land admeasuring 747 sq. mtrs going into ROB was given to Momin Gujrat CHS in 1989 and plans were sanctioned at that point of time. It is stated that since the benefit of FSI was given for the said portion, the office of Executive Engineer (Building Proposal) had issued an Occupancy Certificate to Momin Gujrat CHS (respondent no.4) on 07 March, 2000 with a condition that the area of the land within 150 feet wide D.P. Road shall be handed over and transferred in the name of MCGM in the City Survey Record within six months. It is stated that thus since 1989 benefit of FSI was given to respondent no.4 in view of acquisition as per Section 126(1)(b) of the Maharashtra Regional and Town Planning Act, 1966 and hence there was nothing more to be acquired by the SLAO. It is next stated that the MCGM had approached SLAO for acquiring various portions of land adjacent to the site affected by the ROB, which included portion of ROB, which was beyond the property under reference i.e. CTS No.192 of Village Bandivali. It is stated that the portion of the property Page 20 of 48
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25 November, 2024 wp 2468-17 copy s.docx admeasuring 747 sq. mtrs was affected by ROB being part of survey no.7, Hissa No.8 (pt) was given CTS No.192 of Village Bandivali. The MCGM on 11 July 2002 had accordingly passed a resolution no. 561 of 2002 for acquisition of various land parcels affected by ROB along with Jogeshwari Vikroli Link Road (JVLR). It is stated that accordingly, SLAO was requested to acquire various land parcels affected by the said ROB. It is stated that CTS No.192 of village Bandivali did not form part of the acquisition proposal and therefore, the SLAO was not called upon to acquire CTS No.192 of village Bandivali admeasuring 747 sq. mtrs., since, from 1989 the compensation in the form of FSI benefit was granted in lieu of said portion of land to respondent no.4. It is next stated that although there was conveyance of then Survey No.7, Hissa No.8 (pt) equivalent to area admeasuring 747 sq. mtrs. of CTS No. 192 of village Bandivali, was the subject matter of conveyance in 1962 being a registered conveyance. It is next stated that the name of the petitioners, however, continued to remain in the Revenue records till now and inspite of petitioners have no title to the property in view of conveyance, which is sought to be misused by the petitioners to claim compensation. Thus the possession receipt relied upon by the petitioners dated 28 December, 2007 has no value in law. It is stated that in fact inspection of such plan was also given by the MCGM to the petitioners and it is on such case, the MCGM has sought dismissal of the petition.
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25 November, 2024 wp 2468-17 copy s.docx
8. There is a rejoinder affidavit filed by the petitioners to the affidavits as filed on behalf of the MCGM inter alia denying the case of the MCGM in the reply affidavits. The petitioners have stated that the land admeasuring 747 sq. mtrs. comprised in CTS No.192 belonged to the petitioners. It was neither sold nor was no person authorized to deal with or dispose of the same. It is stated that Gujarat Momin Association/respondent no.4 could not have filed layout plan in regard to the petitioners' said land and/or submitted any layout plan in that regard. It is stated that the said land belonging to the petitioners fell under road setback of 150 feet wide road. It is stated that the petitioners did not claim FSI/TDR after passing of the award. It is reiterated that what was sold to Smt. Satbai under conveyance dated 17 May 1980 was an area of 3035 sq. mtrs. In these circumstances, it is stated that MCGM could not have accepted any building file wherein the FSI of the petitioners' land was claimed, by any other person except the petitioners. Such affidavit also deals with the case of respondent no.4 whereby the petitioners in detail have denied the contentions of not only MCGM but also of respondent no.4 to submit that all such contentions are contentions which are against the award which stands legal and valid.
9. There is another affidavit of Shri Ramesh Yadav dated 26 September, 2023 filed on behalf of MCGM. At the outset, Mr. Reis, learned senior counsel for MCGM submits that paragraph (B) and paragraph (C) of the Page 22 of 48
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25 November, 2024 wp 2468-17 copy s.docx affidavit are not being pressed, what remains in paragraphs (A) and (D) is as to what the MCGM contends that there is delay on the part of the petitioners in filing this petition as the award was declared on 15 January, 2009 and that the benefit of TDR was granted in respect of the land. It is contended that the petitioners had abandoned their claims referring to the conveyance dated 27 June, 1962. It is stated that respondent no.4 had submitted the building proposal in respect of the land conveyed namely survey no.7, Hissa No.8 (pt) and survey no.1 (pt) admeasuring 3630 sq. yards which is equivalent to 3063 sq. mtrs of village Bandivali. The said area of 3063 sq. mtrs. is shown in the sketch plan annexed to the conveyance deed. It is stated that the area of 747 sq. mtrs. was utilized for construction of ROB, and it is on such conveyed land, ROB has been constructed on the said land and that a benefit of setback of 150 feet wide DP road was given to the society, instead of compensation which was utilized whilst submitting their construction plan sanctioned on the said property. It is hence stated that the petition be dismissed.
10. There is a rejoinder affidavit of Mr. Madhusudan B. Vakharia filed on behalf of the petitioners to the affidavit filed on behalf of the municipal corporation of Mr. Ramesh Yadav denying the case of the municipal corporation. It is denied that there is any delay in filing the writ petition. It is stated that in fact, contradictory statements are made in the affidavit of Mr. Ramesh Yadav, Assistant Engineer. It is further stated that it was not Page 23 of 48
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25 November, 2024 wp 2468-17 copy s.docx correct that the municipal corporation stated in its affidavit that the award records that in respect of ROB, benefit of TDR is granted and therefore, compensation is not to be paid. It is stated that in fact, there is no such statement in the award. It is further stated that the petitioners were not informed, much less by letter dated 05 September, 2009 that the petitioners are not entitled to compensation. It is also stated that the petitioners have not at all abandoned their claims. The petitioners in the rejoinder reiterated that respondent no.3 cannot dispute the liability to pay compensation to the petitioners when based on the notification and the declaration to acquire the land, the same was acted upon and the land of the petitioners was acquired and possession of the land was taken over from the petitioners. It is stated that the municipal corporation never denied that the subject property had stood acquired. It is stated that the municipal corporation cannot take a position contrary to the award. The petitioners have set out the detailed reasons as to why the liability to pay the compensation cannot be disputed by the MCGM and the State Government. We do not refer to the other contents of the rejoinder affidavit as the petitioners have reiterated their contentions in the petition.
11. There is a reply affidavit dated 16 December 2019 filed on behalf of respondent No.4 of Mr. Ahmed Sherif Momin, Chairman / Treasurer of respondent No.4 Society, opposing the petition. In such affidavit, respondent No.4 has purportedly disputed the ownership of the land in Page 24 of 48
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25 November, 2024 wp 2468-17 copy s.docx question subject matter of acquisition. It is contended that on such ground, the petitioners are not entitled for payment of compensation or to claim possession of the land on non payment of the compensation. It is, however, not disputed that there was a conveyance dated 27 June 1962 and agreement dated 11 February 1980 showing the area of the plot which was sold under the document is admeasuring 3035 sq. mts. The averments in that regard, disputing the area what was sold. It is stated that even in the building plan which was approved by the MCGM the total area of plot was shown as 3810.4 sq.mts. and the area of approval as adopted being 3035 sq.mtrs. The relevant averments are contained in paragraphs 7, 8 and 9 which read thus:
"7. I state that it is pertinent to note that although from the conveyance dated 27th June 1962 and agreement dated 11 th February 1980 the area of the plot is stated 3035.00 sq. mts. however as per the schedule of conveyance plan attached with conveyance the entire C.T.S. No. 192 (Original prior to 1985) S. No. 7, H.No. 8 (pt) shown as land to be conveyed, and as per the original P.R. Card (prior to 1985) the total area of plot bearing C.T.S. No. 192 is 3810.40 sq.mts. which is supposed to be the area to be conveyed. Hereto annexed and marked as "Annexure C" and "Annexure-D" is the copy of the schedule of the conveyance plan and original PR Card (prior to 1985) respectively.
8. I further state that the building plans approved by MCGM vide approval no. CE/2492/WS/AK dated 1st March 1989 the total plot area is shown as 3810.40 sq.mts. and the area of approval is adopted 3035.04sq.mts. excluding the area of east side internal road. I carve leave to refer and rely on the approved Plan as and when produced before this Hon'ble Court.
9. I state that from the area adopted for approval, the setback area under D.P. road (North Side) is deducted for handing over to MCGM and in lieu of the said D.P. road area the MCGM has granted FSI on the remaining plot under reference bearing CTS No. 192/1 of village Bandivali. Hence, from the copy of approved plan it is very clear that the said 747.00 sq.mts. area under D.P. Page 25 of 48
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25 November, 2024 wp 2468-17 copy s.docx road is the part of society's land which is already handed over to MCGM."
12. Thus, in short the case of respondent No.4 is that the petitioners ought not to be held to be entitled to the compensation for the land admeasuring 747 sq.mtrs. , as the petitioners are not the owner of the land.
13. There is an additional affidavit filed on behalf of respondent No.4 of Mr. Ahmed Sherif Momin, treasurer dated 17 February 2020 to place on record conveyance deed which is relied in the reply affidavit as a copy of the same as annexed to the earlier affidavit, is not an accurate document. By such affidavit, the conveyance deed as also updated copy of the property card is placed on record.
14. On the aforesaid factual antecedent and pleadings, we have heard learned Counsel for the parties.
Submissions:-
15. Mr. Jain, learned Counsel for the petitioners has made the following submissions:
16. At the outset, our attention is drawn to the award to submit that the award has correctly described the petitioner's land, subject matter of the acquisition at 747 sq. mtrs. As also has correctly indicated the petitioner's name as the owner of the land to determine the compensation at Rs.72,77,905/-. It is next submitted that the award has remained to be Page 26 of 48
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25 November, 2024 wp 2468-17 copy s.docx valid and subsisting, however, without payment of compensation to the petitioner. It is submitted that in fact, the petitioners being not satisfied with the quantum of the compensation as awarded under Section 18 of the Act for enhancement of the compensation, as also the petitioners had approached the SLAO for disbursement of the compensation as granted to the petitioners under the award. It is submitted that however, the petitioners were deprived of such payment of the compensation on something irrelevant and which had transpired prior to the award and which was in relation to the TDR being offered by the acquiring body (MCGM). On such case of the municipal corporation, it is categorically submitted that the compensation which is determined by the award is the monetary compensation and as per settled position in law, award is an offer which was accepted by the petitioners and it is for such reason, it is obligatory on the part of the SLAO to make payment of the compensation, however, he refrained from doing so by unwarrantedly entering into correspondence with the municipal corporation on the issue as to whether the petitioners had received TDR in respect of the land in question, which was not at all relevant.
17. It is submitted that the petitioners had taken a categorical position that in respect of the land subject matter of the acquisition, the petitioners did not receive any TDR or FSI and in fact, the petitioners by their letter dated 20 July 2009 addressed to the Executive Engineer (Building Page 27 of 48
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25 November, 2024 wp 2468-17 copy s.docx Proposals) had taken a clear position that the petitioners had not utilised any TDR or FSI.
18. It is next submitted that the attempt on the part of the municipal corporation to relate the subject land to the land which was already sold by the petitioners under a Deed of Conveyance to Smt. Satbai who had sold the same to respondent no.4 society, could not have been raked up considering the area which was sold and the clear description of the petitioners land, which had remained with the petitioners which formed part of the land acquisition notification issued under Sections 4 and 6 of the Land Acquisition Act and consequently subject matter of the award dated 15 January, 2009 declared by the land acquisition officer. It is submitted that the municipal corporation cannot take a position contrary to the award and by accepting the award and denying the benefit of compensation to the petitioner. It is submitted that this is a clear case that the possession of the land was taken over on 28 December 2007, and the compensation is not paid and hence, the petitioners have clearly become entitled to payment of compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is next submitted that the insistence of the corporation without any basis that the petitioners have accepted the TDR or FSI as unilaterally without the consent of the petitioners to accept the same post the award and quantum of compensation as awarded, the same Page 28 of 48
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25 November, 2024 wp 2468-17 copy s.docx cannot be fasted on the petitioners. It is submitted that this would be contrary to the decision of the Full Bench of this Court in Shree Vinayak Builders and Developers, Nagpur vs. The State of Maharashtra and ors. 1 as also recently followed by the Division Bench of this Court in Our Lady of Immaculate Conception Church vs. Municipal Corporation of Greater Mumbai & Ors.2.
19. Learned Counsel for the petitioners would submit that indisputedly it can be seen that the petitioners were the owners of the land in question admeasuring 747 sq. mtrs. In CTS No.192. It is submitted that there was no reason whatsoever for any of the respondents to question the ownership of the petitioners in respect of the said land, as any argument questioning the ownership of the petitioners is an argument which would be against the land acquisition award dated 15 January 2009 as rendered by the SLAO inasmuch as such award at number of places had acknowledged the ownership of the petitioners to the land, as also qua such ownership, the entitlement of the petitioners for payment of compensation including the quantum of compensation which would be payable to the petitioner. It is submitted that the land acquisition award is legal, valid and subsisting as none of the respondents that is neither the municipal corporation nor respondent No.4 have assailed the award and more particularly the award declaring the petitioners to be entitled to the payment of land acquisition 1 2022(4) Mh.L.J. 739 2 2024 SCC OnLine Bom 1905 Page 29 of 48
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25 November, 2024 wp 2468-17 copy s.docx compensation. It is thus submitted that now to oppose the payment of compensation to the petitioners, on the ground namely of disputing ownership of the petitioners' land on the basis of the contentions of sale deed, etc. is wholly untenable.
20. It is next submitted that the reasons as set out in the impugned letter dated 20 January 2015 rejecting the petitioners' request for payment of compensation are totally untenable for the reason that the petitioners had requested for TDR in view of the land acquisition compensation and it is for such reason, the award amount was not paid to the petitioners. It is submitted that there is no document whatsoever on record to show that the petitioners had received the TDR and much less such TDR was granted to the petitioners in lieu of compensation. It is submitted that such a position taken in the impugned letter dated 20 January 2015, is in fact contrary to the award and hence, a totally untenable proposition. It is thus submitted that in the aforesaid circumstances, the petition is required to be allowed by directing respondent no.1 to pay compensation to the petitioner.
21. Mr. Patki, learned Additional G.P. has made submissions on behalf of the State of Maharashtra and the S.L.A.O. Mr. Patki fairly would not dispute as to what is the content of the award which recognises the entitlement of the petitioners to the compensation of Rs.72,77,905/-. It is fairly submitted that the SLAO in the present case has acted on the advice Page 30 of 48
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25 November, 2024 wp 2468-17 copy s.docx of the acquiring body to proceed on the ground that the petitioners had received TDR as informed by the Land Acquisition Officer to the petitioners in the impugned letter dated 20 January 2015. Mr. Patki, however, would fairly not dispute that the award has remained valid and the acquiring body cannot take position contrary to the award. Mr. Patki has drawn our attention to several documents on record which is the correspondence between the Deputy Collectors/ Special Land Officers of the municipal corporation.
22. On behalf of MCGM, Mr. Reis, learned senior counsel has made extensive submissions. His first submission is that the petition is barred by delay and laches inasmuch as according to him, the award is dated 15 January, 2009. The Writ Petition for the prayers as noted hereinabove was filed in August, 2017 and for such reason, the petition needs to be dismissed. The second contention is that the petition needs to be dismissed on the ground that there are disputed questions of fact as observed by this Court in the orders dated 19 January, 2023 and 22 February, 2023. In this context, his submission is that the acquisition as alleged by the petitioners is in respect of CTS No. 192 Survey No. 7 - Hissa No. 8, however, Section 6 notification as relied on behalf of the petitioners is in respect of CTS No. 192 Survey No. (Pt.) and not of Survey No. 7 Hissa No. 8. His contention is also that the possession receipt and award also shows Survey No. 1(Pt.) and not Survey No. 7(Pt.). It is submitted that Survey no. 7 (Pt.) is shown Page 31 of 48
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25 November, 2024 wp 2468-17 copy s.docx equivalent to Survey No. 198/3 and not 192. It is submitted that respondent no. 4 /Society has produced a registered documents, which shows that Survey no. 7 Hissa no. 8 is sold by the petitioners in 1962 and confirmed in the said document in 1980. It is his submission that if survey is carried out, it will indicate that the road over bridge (ROB) was always been on the portion of 3035 sq.mtrs., which was the land conveyed by the petitioners to respondent no. 4. It is submitted that CTS no. 192 prior to 1983 admeasured 3800 sq. mtrs. and on which in 1985, a layout was sanctioned for 58111 sq. mtrs. It is submitted that the occupation certificate and the plans as sanctioned in respect of the construction undertaken by the Society dated 7 March, 2000 show that the benefit of ROB was taken by the Society with a condition that property should be transferred in the name of the MCGM.
23. It is next submitted that even the award indicates that petitioners never claimed any ownership or compensation for CTS No. 192/1 as also that the SLAO rejected compensation to the petitioners on the ground that the setback benefit was granted. It is next submitted that CTS No. 192 vide RR of December, 1995 amalgamated adjoining CTS on east side of CTS No. 192, thus increasing the area from 3035 to 3810.40 sq.mtrs and further sub-divided into CTS no. 192 admeasuring 747 sq. mtrs and CTS 192/1 admeasuring 3063.40 sq. mtrs. It is submitted that the Society has admitted that ROB is taken from their property, as also that the petitioners Page 32 of 48
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25 November, 2024 wp 2468-17 copy s.docx have not disputed the sub-division. It is submitted that CTS no. 192 prior to 1985 was 3035 sq. mtrs and further amalgamated and sub-divided in December 1985. It is further submitted that CTS 192 admeasures 747 sq.mtrs and CTS 192/1 admeasures 3063 sq. mtrs. It is submitted that significantly the petitioners in their letter dated 31 May, 2010 has admitted that land admeasuring 747 sq. mtrs. is taken over from CTS No. 1/192 and the total area of which admeasures 3035 sq. mtrs. It is thus submitted that the adjoining plot no. 4 (CTS No. 199) and plot no. 13(CTS No. 192, 192/1) were sold by the petitioners in 1962 and between these two plots, ROB of 150 ft. wide is passing through, as per sub-division order and hence the petitioners have no ownership for the ROB portion. In these circumstances, it is submitted that the petition be dismissed. In support of such contentions, reliance is placed on the decision of this Court in Writ Petition No. 203 of 2014 (Apurva Natvar Parikh & Co. Pvt. Ltd. vs. State of Maharashtra and Ors.).
24. Learned counsel for the society has made submissions referring to the reply affidavit, however, it is fairly accepted that the society under the award cannot have any claim in regard to the monetary compensation being awarded to the petitioners.
Analysis and Conclusion:-
25. We have heard learned counsel for the parties. With their assistance, Page 33 of 48
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25 November, 2024 wp 2468-17 copy s.docx we have perused the record.
26. The question which would fall for determination of this Court is whether the petitioners are entitled to compensation in regard to the acquisition of petitioners' land being an area of 747 sq. mtrs. in CTS 192 (Pt.) situated at Survey No. 7, Hissa No. 8 (Pt.) village Bandivali, Jogeshwari, District Andheri, Mumbai or in the alternative, whether the petitioners would become entitled to any of the prayers as made in the petition.
27. We may observe that by orders dated 30 August, 2023 read with our order dated 27 September, 2023 passed by this Court, we had directed that the award compensation of Rs.72,79,905/- payable to the petitioners along with accrued interest be deposited in this Court. For convenience, we note the order dated 30 August, 2023, which reads thus:
"1. In our opinion, this case is a peculiar case wherein the Petitioners' land was acquired by following due procedure under the Land Acquisition Act, 1894, for a public purpose for construction of a "Rail Over Bridge" (ROB), by a legitimate land acquisition procedure being followed, namely, by issuance of notifications under Sections 4 and 6 of the Land Acquisition Act 1894 (for short "L.A. Act"), culminating into an award dated 15th January 2009. The land acquisition award determined compensation of Rs.72,77,905/- to be paid to the petitioners which has till date not been paid to the Petitioners is the primary grievance of the petitioners.
2. It is not in dispute that the land belonging to the Petitioners CTS No.192 part admeasuring 747 sq. mtrs. situated at Bandivali, Jogeshwari was subject matter of acquisition. This is clear even from the notifications as also the award. It prima facie appears that on totally untenable reasons and completely contrary to the Land Acquisition Act, such amount of compensation as Page 34 of 48
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25 November, 2024 wp 2468-17 copy s.docx payable to the Petitioners was in fact returned by the Special Land Acquisition Officer to the acquiring body which is Respondent No.3-Municipal Corporation for Greater Mumbai (for short "MCGM"). Such return of the compensation amount to the MCGM appears to be on the basis that prior to the declaration of the award, the Petitioners had taken a position, that they be permitted to opt for Transferable Development Right (TDR) in lieu of monetary compensation. However such plea was subsequently given up as discussed hereafter.
3. In our opinion, what is most vital in the context of the petitioners grievance on non-payment of the award compensation, is the immediate communication of the Petitioners to the Special Land Acquisition Officer, after award was published, being the Petitioners' letter dated 18th April 2009, which was to the effect that the amount of Rs.72,77,905/- be paid to the Petitioners in cash and for which an advance receipt was also forwarded. We note the said communication which reads thus:-
"On 29th January 2009, we have received from you your Notice u/s. 12(2) dated 15th January 2009. As per page 89, Item 10 of your Award dated 15th January 2009 we are shown as the only claimants to whom you have declared the amount of Rs.72,77,905/- as payable.
We are enclosing true copy of the Conveyance dated 24th July 1951, executed in our favour by Mr. Nanabhoy Byramjee Jeejeebhoy. The said Conveyance has been registered under Serial No.4208 of 1951.
We are enclosing advance receipt for the payment of the said compensation of Rs.72,77,905/-. The payment is accepted by us without prejudice and under protest to make a claim for reference u/s. 18 for enhancement of compensation. As per the provisions of Section 34, we are entitled to interest upto the date of payment.
From the Award we find that you have calculated interest only upto 15th January 2009. We reserve our right to claim interest from 15th January 2009 till the date of payment.
We authorize per bearer Shri V. G. Pednekar to collect the payment covered by the Advance receipt."
(emphasis supplied)
4. Further, it is quite significant that being aggrieved by the quantum of the compensation of Rs.72,77,905/-, the Petitioners also invoked the provisions of Section 18 of the LA Act praying that they are entitled to an enhanced compensation, which was Petitioners' application dated 6th April 2009. The entitlement of the petitioners to make such application undoubtedly was their statutory right, as conferred by law, having suffered their land Page 35 of 48
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25 November, 2024 wp 2468-17 copy s.docx being acquired for a public purpose for a Rail Over Bridge. Surprisingly the Special Land Acquisition Officer has failed to make a reference till date.
5. Prima facie what appears to be quite astonishing is that the Special Land Acquisition Officer, forgetting the clear communication of the Petitioners dated 6th April 2009 (supra) demanding payment of monetary compensation which was the petitioners response to the award notice issued under Section 12(2), appears to have taken a position that the Petitioners were only interested in availing the TDR. On such erroneous belief the Special Land Acquisition Officer by his letter dated 17th March 2015, addressed to the acquiring body, namely the MCGM, returned the amount of compensation as payable to the Petitioners. Mr. Patki the learned Assistant Government Pleader is unable to support such action of the Special Land Acquisition Officer, considering the scheme of the LA Act, more particularly Section 31 thereof. Be that as it may, the factual position is that the compensation amount which was deposited by the acquiring body-MCGM, with the Special Land Acquisition Officer, as on day stands returned and lies in hands of the acquiring body - MCGM.
6. It is quite clear that the award has quantified the amount of compensation to be paid to the Petitioners. Undoubtedly the Petitioners land being acquired their valuable rights of ownership of the land have stood extinguished and/or are taken away in passing of the award and the possession of the land having being taken over, this under the Scheme of the legislation would take place only on payment of compensation as mandated by law i.e. as per the provisions of the Land Acquisition Act, 1894, under which the present land acquisition proceedings have taken place.
7. There can be no two opinions that the mandate of law is that once the Petitioners land stood acquired, the Petitioners had become entitled to the land acquisition compensation as declared by the 'Award' made by the Special Land Acquisition Officer, which has been quantified at an amount of Rs.72,77,905/-. Prima facie, neither the Special Land Acquisition Officer nor the acquiring body can insist, that too in the teeth of the position taken by the Petitioners by their letter dated 18th February 2009 (supra), that the petitioners be foisted/compelled, not to take the monetary compensation and /or avail only the TDR.
8. It appears that under no warrant in law the Petitioners can be dragged by the MCGM, and the Special Land Acquisition Officer yielding to such stand of the MCGM, that the petitioners be granted TDR in lieu of the monetary compensation under the award in question. Considering the provisions of the LA Act, it cannot be accepted that the acquiring body can have any choice to dictate to the Special Land Acquisition Officer, as to in what Page 36 of 48
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25 November, 2024 wp 2468-17 copy s.docx manner the person whose land has been acquired can be compensated.
9. It appears that the petitioners had taken an informed decision not to accept the land acquisition compensation in the form of TDR, for the reason that in respect of the land of the Petitioners there appeared to be a dispute on TDR with a private party namely Respondent No.4 to whom some part of the Petitioners' larger land, decades before the land acquisition, was sold by the Petitioners.
10. In our, prima facie, opinion even assuming that a person whose land has been acquired is to be compensated by grant of a TDR or FSI, of an amount equivalent to the amount as awarded under the land acquisition award. A fortiori, it would be wholly irrelevant and misconceived to connect the compensation as awarded to the land to ascertain whether the land as acquired generates a TDR/FSI equivalent to the compensation as awarded. Any grant of TDR/ FSI in lieu of the monetary compensation determined under the award, would be award of TDR/FSI of the value of such compensation under the award, and not by exploring ascertainment of the TDR from the land as acquired.
11. Thus, in the present case even assuming that the compensation to be paid to the Petitioners was to be in the form of TDR (although it is not), the TDR can only be in respect of an amount equivalent to the compensation, which was determined at Rs.72,77,905/- and not dependent on whether the land which has already stood acquired had the potential to generate any TDR. This, in view of the fact, that when the award determines the compensation of Rs.72,77,905/- to be paid to the Petitioners, in a manner known to the Land Acquisition Act, which involved the Special Land Acquisition Officer, taking into consideration, all relevant factors for determination of the compensation, there cannot be a reopening / reconsideration of these factors which are integral to the compensation as awarded, till such time the award subsists as legal and valid. It is nobody's case that the award was assailed in any proceedings to the extent it awarded such compensation to the petitioners. Thus, the basic entitlement of the Petitioners to an amount of Rs.72,77,905/- could not have been disregarded. It could be payable either in cash or in terms of equivalent TDR as on the date of the award. However the petitioners by their letter dated 18th April 2009 (supra) opted for payment of monetary compensation only.
12. Thus, the stand as taken by Mr. Reis, learned Senior Counsel for the MCGM that there is a dispute as to whether the Petitioners land, which has stood acquired, as also the possession of which was handed over way back on 28 December 2007 to the MCGM, would generate TDR equivalent to the monetary compensation is ex-facie untenable. Such contention if accepted Page 37 of 48
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25 November, 2024 wp 2468-17 copy s.docx would amount to the MCGM assailing the Land Acquisition Award, which has not been accepted by the MCGM and not assailed.
13. In the aforesaid circumstances, the position which emerges is that the petitioners have not been paid compensation as awarded by the Special Land Acquisition Officer and as categorically demanded by them, being their legitimate entitlement. Thus, what would stare at the Special Land Acquisition Officer as also at the acquiring body, is that the Petitioners ought to have been paid the compensation which has not been paid for so many years. Prima facie by virtue of the non-payment of the compensation, there is a clear violation of the Petitioners right guaranteed under Article 300A of the Constitution. It cannot be a situation that once the rule of law as envisaged by the Constitution, recognizes such rights to property, there cannot be an expropriation of the Petitioners' property, without payment of compensation.
14. In the above circumstances, we are of the clear opinion that the amount of Rs.72,77,905/- along with interest as per the proviso to Section 34 which is a provision for payment of interest, is required to be deposited by the Respondent No. 1 to 3, in this Court and which shall be subject to further appropriate orders to be passed on the present proceedings.
15. As the amount was returned by the Special Land Acquisition Officer to the MCGM, the MCGM shall deposit the principal amount of the award of Rs.72,77,905/- along with interest @ 15% as per the provisions of Section 34 from the day the MCGM received the amounts from the Special Land Acquisition Officer. Such amounts be deposited in this Court within a period of two weeks from today.
16. Insofar as the interest prior to the compensation amount being returned by the Special Land Acquisition Officer is concerned, Respondent Nos.1 and 2, shall deposit the interest @ 15% from the date of the award till such date the same was returned to the MCGM. We, accordingly, direct Respondent Nos.1 and 2 to deposit the interest amount as per Section 34 in this Court within two weeks from today.
17. Ordered accordingly.
18. Stand over to 13th September 2023, High on Board.
19. Needless to observe that the direction to the State Government to deposit the interest would be subject to the entitlement of the State Government to recover the interest from the acquiring body."
(emphasis supplied) Page 38 of 48
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28. Accordingly, an amount of Rs.2,33,42,136/- was deposited in this Court and as recorded by us in the order dated 27 September, 2023, which reads thus:
"1. In pursuance of our earlier order, it is stated by learned advocate for the municipal corporation that an amount of Rs. 2,33,42,136/- has been deposited by the municipal corporation which includes the amounts to be deposited by the State Government also. On the last occasion, we were informed by Mr. Reis, learned senior counsel for the municipal corporation that the respondent-corporation intended to file reply affidavit. So far no such affidavit has been placed on record. We grant a last opportunity to the municipal corporation to file reply affidavit which be filed within one week from today. Copy of the same be also served on the advocate for the petitioners.
2. The State Government is at liberty to file a reply affidavit, if the State Government so desires.
3. List the proceedings on 18 October, 2023 (H.O.B.)."
29. To consider the petitioners entitlement to compensation as seen from the facts, it is not in dispute that the petitioners were the owners of larger land bearing CTS No. 192 admeasuring 3810.40 sq. mtrs. and out of such land, an area measuring 3035 sq. mtrs. was sold by the petitioners under the Deed of Conveyance dated 17 May, 1980 to one Smt. Satbai. Thereafter, Smt. Satbai has sold the said land to respondent no. 4- Society. Thus, indisputedly 775.4 sq. mtrs. (3810.40 - 3035) in CTS No. 192 remained with the petitioners after such sale of the said land.
30. There is also no dispute in relation to the acquisition process initiated by respondent no. 1 at the behest of the MCGM for acquisition of 747 sq. Page 39 of 48
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25 November, 2024 wp 2468-17 copy s.docx mtrs. of petitioners land in CTS No. 192. In the notification issued under Section 6 of Land Acquisition Act read with Section 126 of the MRTP Act, the petitioners said land was indicated at Item No. 115 as notified under the said village. Urgency provisions under section 17 of the LA Act was applied and accordingly, possession of the land was taken over "from the petitioners" on 28 October, 2007. Possession receipt clearly shows that the possession of land was handed over by the petitioners to the SLAO and counter signed by the representative of the MCGM. Thus, what is significant is that the possession was not handed to the SLAO by the Society or any other third party. This is not in dispute.
31. This apart, in the land acquisition award dated 15 January, 2009, the true area of the land under acquisition and as belonging to the petitioners was correctly indicated at 747 sq. mtrs. in Survey No. 192 (Pt.) and the calculation of compensation as indicated in the award and as payable to the petitioners was indicated at Rs.72,77,905/-. After the publication of the award, the petitioners received a notice dated 29 January, 2009 from the SLAO that the award being already declared, the petitioners have become entitled to compensation of the said award and for which relevant documents be submitted.
32. The aforesaid facts are clearly not in dispute as they form part of the record of the SLAO. None of the parties much less the MCGM had Page 40 of 48
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25 November, 2024 wp 2468-17 copy s.docx challenged the award to be illegal on the ground that it has illegally included the land belonging to the petitioners or to the effect that the petitioners land was not subject matter of acquisition. For such reason, it appears to be as clear as daylight that the petitioners being indicated to be entitled to compensation in the land acquisition award and the award at all material times remaining legal, valid and subsisting as to how the SLAO could deny payment of compensation to the petitioners which is a legal right of the petitioners to receive the same considering the specific provisions as contained in Article 300A of the Constitution.
33. It appears that the claim of the petitioners was sought to be defeated by enormous amount of unwarranted issues created at the behest of the MCGM and that too without questioning the land acquisition award. We have noted above as to the nature of queries and correspondence which was sought to be entered between the concerned officers of the MCGM and the SLAO. Further, it is also apparent that the SLAO was completely lost in the labyrinth and more particularly forgetting on what was decided by him qua the petitioners rights under the award. We may observe that looking at the post award correspondence which we have adverted in detail hereinbefore, we are of the clear opinion that once the land was acquired under the award and the possession of the same was handed over by the petitioners to the SLAO, the MCGM in its capacity as an acquiring body had no role to play and it could not have in any manner whatsoever Page 41 of 48
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25 November, 2024 wp 2468-17 copy s.docx objected to the entitlement of the petitioners to receive the land acquisition compensation as determined in the award and that too without challenging the award. In such situation, it was also not permissible for the MCGM to raise any factual dispute on the ownership of the land or entertain the complaints from any third parties on issues touching the award. The correspondence as entered between the MCGM and SLAO post the award and at the time compensation had become payable to the petitioners, reflects a sorry state of affairs at both the ends, namely, with the SLAO as also with the MCGM. The concerned officer of the MCGM in fact went to the extent of convincing the SLAO that the amount of compensation deposited by the MCGM to be paid to the petitioners is no more required to be paid and in fact such amount was returned by the SLAO to the MCGM. This certainly could not have been done by the SLAO when the award was in no manner modified or annulled in a manner known to law so as to take away the entitlement of the petitioners to receive the awarded compensation. In this context, the factual position was very clear that throughout the petitioners have participated in the land acquisition proceedings, the petitioners entitlement to receive compensation very much formed part of the award as published by the SLAO, also prior to the publication of the award, the petitioners had handed over the possession of the land to the SLAO.
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34. Insofar as the MCGM's contention that the FSI in regard to the petitioners land subject matter of acquisition, was in fact utilized by the society, and therefore, the petitioners would not be entitled to the monetary compensation as fixed by the award, is untenable for several reasons. Such contention first and foremost is a contention against the award namely the award determining compensation payable to the petitioners in respect of the land of the petitioners of which possession was handed over by the petitioners to the SLAO and at no point of time prior to the publication of the award, the MCGM had taken a position that the petitioners land subject matter of acquisition was not of the ownership of the petitioners and therefore, the petitioners land should be deleted from acquisition. As noted above, the MCGM has never challenged the award and received the possession of the petitioners land from the SLAO. Further the MCGM does not have any document to place on record to show that after the award was declared, the FSI qua the petitioners land was disbursed to the petitioners or to respondent no.4. There is also no calculation as to the proportionate FSI being calculated considering the monetary compensation as declared by the award and disbursed. In the absence of all these relevant materials, it is not possible for the Court to accept the MCGM's contention and that too on the basis of the conveyance as entered by the petitioners in favour of Satbai or the subsequent conveyance of Satbai in favour of the Society that there is a possibility that the petitioners land admeasuring 747 Page 43 of 48
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25 November, 2024 wp 2468-17 copy s.docx sq. mtrs. was not at all available for acquisition and therefore, the petitioners were not entitled to compensation. Thus, all these objections appear to be a total figment of imagination of concerned officers of the MCGM and taken for the reasons best known to them as also oblivious to the concluded record of the acquisition proceedings.
35. We are not inclined to accept the contentions as urged on behalf of the MCGM on delay and laches so as to non-suit the petitioners. The contention of delay and laches is wholly misconceived inasmuch the record is replete with the correspondence as entered by the petitioners with the SLAO in making demand of the compensation. Further, it is also most unfortunate that the MCGM and the SLAO together dragged the petitioners into unwarranted correspondence overlooking that the petitioners at all material times was entitled to the award compensation. This apart, the argument of delay and laches also needs to be rejected considering that the cause of action to the petitioners to receive compensation and which was acknowledged by the award and not paid was a continuing cause of action and more particularly on the touchstone of the petitioners right under Article 300A read with Article 14 of the Constitution. If compensation is not to be paid or denied to the petitioners when the land was taken over/acquired for the public purpose, it certainly brings about a consequence of the petitioners being deprived of these legal rights. Certainly, neither respondent no. 1 nor respondent no. 2 can take a Page 44 of 48
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25 November, 2024 wp 2468-17 copy s.docx position that a private land can be utilized for any public purpose without payment of compensation. Insofar as the argument on behalf of MCGM that the petitioners have no locus to receive compensation raising a purported dispute on the identity of the land, we have already commented on the same to be an outrageously untenable defence. In fact we are quite aghast for a public body like the MCGM in intending to defeat the lawful entitlement of the petitioners for compensation, by raising such frivolous disputes while accepting the award which recognize the petitioners right to receive compensation.
36. The petitioners are also correct in their contention relying on the decision of the Full Bench of this Court in Shree Vinayak Builders and Developers, Nagpur vs. The State of Maharashtra and ors. (supra) that the SLAO cannot foist a decision on the petitioners that the TDR should be accepted by the petitioners in view of the monetary compensation. The provisions of the MRTP Act as considered and interpreted by the Full Bench clearly hold that the law would not permit foisting the TDR/FSI to the person whose land is acquired, if such person is not agreeing for accepting FSI/TDR. Even assuming that the petitioners prior to the award along with the other land owners had taken a position to accept the FSI/TDR, however, the position is clear that the award itself quantified the compensation payable to the petitioners. Further the SLAO had called upon the petitioners to submit documents so as to receive the monetary Page 45 of 48
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25 November, 2024 wp 2468-17 copy s.docx compensation and such documents were submitted by the petitioners. Thus, the contention as urged on behalf of the MCGM that the petitioners were entitled to FSI/TDR and not monetary compensation, is, therefore, wholly untenable. In such context, a Division Bench of this Court of which one of us (G. S. Kulkarni, J.) is a member in Our Lady of Immaculate Conception Church vs. Municipal Corporation of Greater Mumbai & Ors. (supra) by referring to the decision of the Full Bench of this Court in Shree Vinayak Builders and Developers, Nagpur vs. The State of Maharashtra and ors. (supra) observed thus:-
"10. A bare reading of Section 126 of the Maharashtra Regional and Town Planning Act, 1966 would indicate that a land reserved for public purpose can either be acquired by an agreement by paying an amount or in lieu of such amount, the TDR or FSI can be granted to the claimant. However, the TDR or FSI can only be granted in lieu of the amount agreed. As such, it is necessary that for TDR or FSI to be granted to the claimant, there has to be basic agreement between the parties. The TDR/FSI can only be granted in lieu of the amount agreed. In the absence of agreement between the parties, the reserved land cannot be acquired under clause (a) or clause (b) of Section 126(1). If there is no agreement, the logical corollary to it is that, the land reserved for public purpose has to be subjected to acquisition as per the applicable law, namely to be acquired under Section 126(1)(c). As such, we have no hesitation to hold that the land of the petitioner, in absence of any agreement between the petitioner and the planning authority/development authority, can be acquired only under the 2013 Act for the purposes of implementation of the regional plan for constructing public garden/park on the land of the petitioner.
11. The respondents cannot contend that the petitioner need to only accept TDR and/or they cannot claim monetary compensation. Such contention of the respondents is patently misconceived considering the provisions of Section 126 of the Maharashtra Regional and Town Planning Act as noted by us above, which would not permit the respondents to foist TDR/FSI on the petitioner in the absence of an agreement to this effect and avoid to follow the land acquisition process. The legal position is no more res integra considering the decision of the Full Bench of Page 46 of 48
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25 November, 2024 wp 2468-17 copy s.docx this Court in the case of Shree Vinayak Builders and Developers, Nagpur versus The State of Maharashtra and ors. reported in 2022(4) MH.L.J. 739. In paragraph 17, in such context the Full Bench observed as under :-
17. While concurring with the above proposition, we would like to emphasize that the mode of acquisition of land under Section 126(1)(a) and (b) of the MRTP Act is by an "agreement". The word agreement connotes offer and acceptance and signifies that the agreement is not an unilateral act but a bilateral act which is concluded with communication of acceptance of the offer. Thus, Acquisition of land reserved for public purpose under Section 126(1)(a) and (b) cannot be by any unilateral proposal of the Acquiring Authority to acquire the land with an offer of compensation or FSI/TDR. It is a mutual agreement between the Acquiring Authority and the land owner whereunder the land is acquired by the concerned authority by agreement either by paying an amount agreed to or by granting, in lieu of any agreed amount, FSI or TDR against the area of land surrendered free of cost, and free of all encumbrances. That being so, the modes of acquisition of land under Section 126(1)(a) and (b) of the MRTP Act, can be resorted to only when there is a consensus between the parties;..."
37. In the light of the above discussion, we have no manner of doubt that the petitioners are entitled to the land acquisition compensation along with accrued interest as permissible in law. We accordingly allow the petition in terms of the following order:
(i) It is declared that the petitioners are entitled to compensation of Rs.72,77,905/- as per the award dated 15 January, 2009 published by the SLAO/respondent no. 1 along with statutory interest as entitled to the petitioners under the provisions of the Land Acquisition Act.
(ii) the petitioners are entitled to withdraw the award Page 47 of 48
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25 November, 2024 wp 2468-17 copy s.docx amount as deposited in this Court by the MCGM along with the accrued interest after a period of two weeks from today.
(iii) If there is any deficit interest or other amounts under the award as entitled to the petitioners, the same be disbursed to the petitioners by respondent nos.2 and 3 within a period of four weeks from the date of this judgment.
38. In our opinion, this was a fit case for the Court to impose cost on the respondents and more particularly the MCGM, however, we refrain from doing so.
39. Petition stands allowed in the aforesaid terms.
40. At this stage, we are informed by Mr. Jain, learned Counsel for the petitioners that the petitioners have already filed a reference application, as also noted by us in the judgment. It is stated that, however, no action has been taken on the part of the SLAO to make a reference to this Court. Appropriate action in that regard be taken within four weeks from today. (SOMASEKHAR SUNDARESAN, J.) (G. S. KULKARNI , J.) Page 48 of 48 Signed by: Vidya S. Amin Designation: PS To Honourable Judge
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Date: 25/11/2024 18:54:26 25 November, 2024