The Adarsh co-operative housing society filed an appeal in the Bombay high court against the order of a single judge that rejected its application opposing the title suit filed by Union ministry of defence (MoD). In the suit, the MoD claimed ownership of the land in south Mumbai where the plush society building stands.
The appeal has been filed before a division bench of the HC challenging the single judge's order. The appeal is likely to come up for hearing on January 12, 2015.
The MoD had filed a title suit in the high court in December 2012 stating that the land in Colaba where the 31-storey Adarsh building is constructed belongs to them (defence ministry) and thus possession should be handed back to them. The suit was filed through General Officer in Command (GOC).
The suit alleged that the Adarsh building has been constructed “illegally and unlawfully”. It further stated that MoD is the sole owner of the land and that the land was transferred to Adarsh society by fraud, collusion and connivance on the part of the society members, ministers and bureaucrats of the state government.
The society, however, filed an application opposing the title suit on the ground that only the Defence Estate Officer (DEO) can file title suits on behalf of the defence ministry. It claimed that the suit by GOC was without sanction by an authority in law as per the provisions contained in Military Lands Manual (MLM) and the rules for the Acquisition, Custody and Relinquishment of Military Lands in India, 1944, and the instructions contained in 'Disposal of Old Records' and held that the suit is barred by law under Order 7 Rule 11(d) of the Civil Procedure Code.
The society relied on an order passed by the General Governor Council and the Government of India in 1930.
The MoD had refuted the claim and argued that it is empowered to file and conduct title suits.
According to the MoD, suits by and against the government are required to be filed by the person whom the government has appointed in a given case under Order 27 Rule 1 of the CPC. That specific appointment is of the GOC in this case.
“Such specific appointment would, therefore, supersede the orders passed and rules made under the Military Lands Manual which is a mere guide,” contended the defence ministry. The guidelines do not exclude any other authority from filing suit.
The single judge had agreed with the arguments of the MoD and rejected the society's application in May 2014. Justice Roshan Dalvi had observed: “The bar created by any law is, therefore, not shown by defendant No. 2 (society). The plaint, therefore, is seen to be correctly filed by the person authorized.”
The society has filed an appeal against this order.
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