JUDGMENT - D.R. DHANUKA, J.:--- This is a reference under section 30 of the Land Acquisition Act, 1894 concerning apportionment of the amount of compensation in respect of the land bearing plot Nos. 32 and 32A of Worli Estate Scheme No. 52 of Bombay Municipal Corporation acquired for public purpose i.e. for residential accommodation of the Government employees. The Special Land Acquisition Officer has deposited a sum of Rs.3,05,900/- in this Court being the amount of compensation awarded under award dated 13th February, 1970. 2. The material facts having bearing on the subject matter of this reference are as under :- (a) On 7th February, 1944, the claimant No. 2 made an application to the Municipal Commissioner for grant of lease in perpetuity in respect of plot No. 32 admeasuring about 1900 square yards on the terms and conditions set- out in the said application. The Improvements Committee of the Municipal Corporation of Greater Bombay authorised the Municipal Commissioner to convey its acceptance of the offer made by claimant No. 2. In pursuance of such authorisation and sanction by the Improvements Committee of the Corporation as contemplated under section 92(4) of the Bombay Municipal corporation Act, the Municipal Commissioner conveyed the acceptance of the offer to the claimant No. 2 on 17th February, 1944. The claimant No.2 also paid a sum of Rs. 3792/- to the Municipal Commissioner as earnest money in part payment of the premium payable by the claimant No. 2. The claimant No.2 subsequently paid the balance of the premium to the Municipally Commissioner as calculated by the Municipally Corporation at the rate of Rs. 16-10-0 per square yards. (b) On 7th February 1944, the claimant No.2 made similar application to claimant No.1 for grant of lease in porpetuity in respect of plot No. 32A. The Improvements Committee of the Muncipal Corporation sanctioned the transaction and authorised the Muncipal commissioner to convey his acceptance in respect of the offer contained in the said application also. The claimant No. 2 paid various amounts to claimant No. 1 towards premium. (c) Before the physical possession of the said land could be handed over to claimant No. 2, the two plots being plot Nos. 32 and 32A were requisitioned for purposes of Military. The claimant No. 2 paid various amounts to claimant No. 1 towards premium. (c) Before the physical possession of the said land could be handed over to claimant No. 2, the two plots being plot Nos. 32 and 32A were requisitioned for purposes of Military. (d) On 6th September, 1949, the Collector of Bombay passed an order under sub-section (1) of section 5 of the Bombay Land Acquisition Act, 1948, requisitioning the said plots No.32 and 32A for public purpose. The Collector of Bombay was to pay a sum of Rs. 933.13 per annum as compensation for requisition of the said land. (e) The Muncipal Authorities contacted claimant No. 2 with a proposal to the effect that the claimant No.2 may take constructive possession of the said plots of land and receive the amount of compensation payable by the Government of Maharashtra in pursuance of the Order of Requisition referred to herein- above. The claimant No.2 accepted the said proposal. On 23rd April, 1951, the claimant No. 2 addressed a letter to the Estate Agent and Land Manager Bombay Muncipal Corporation, Bombay confirming that claimant No.2 was agreeable to the arrangement mentioned in Muncipal letter dated 28th March, 1951 and that the claimant No.2 was agreeable to receive the amount of compensation for the period commencing from 1st April, 1947. It was also agreed between Muncipal Corporation and claimant No.2 that compensation received by the Muncipal Corporation for the period commencing from 1st April, 1947 to 30th June, 1951 would be passed on by the Muncipal Corporation to claimant No.2 and in future the compensation would be received directly by claimant No. 2 from the Collector of Bombay. Thus the transaction of lease was followed and implemented by part performance and handing over of the constructive possession of the said plots of land in the manner aforesaid. By the said letter dated 28th March, 1931, bearing No. EAL/4419 the Muncipal Corporation informed the claimant No. 2 that the Government will pay a sum of Rs. 933.13 per annum to claimant No.2 by way of compensation for occupation of the said plots w.e.f. 1st July, 1951. It was also stated in the said letter that the claimant No.2 shall be liable to pay nominal rent of Rs. 1/- per annum on 1st July of each year to the Muncipal Corporation w.e.f. 1st July, 1951. 933.13 per annum to claimant No.2 by way of compensation for occupation of the said plots w.e.f. 1st July, 1951. It was also stated in the said letter that the claimant No.2 shall be liable to pay nominal rent of Rs. 1/- per annum on 1st July of each year to the Muncipal Corporation w.e.f. 1st July, 1951. Thus even though the document of indenture of lease was not executed, the transaction was fully implemented between the parties by the correspondence and by conduct at least by April 1951. By the said letter dated 28th March, 1951, the Estate Agent and Land Manager also confirmed that the Corporation will pay compensation to claimant No. 2 at the rate of 933.13 per annum for the period commencing from 1st July 1951 to 30th July 1951. The Municipal Commissioner confirmed in writing that the "building tenant" Shri Vishinji Doongersee i.e. claimant No.2 had paid the full amount of premium in respect of plot Nos. 32 and 32A and such confirmation signed by S.M. Postwala, Executive Engineer is to be found at page 24 of complication of claimant No.2. (f)The collector of Bombay (Requisition Branch) confirmed the tripartite arrangement arrived at. By a letter dated 8th October 1951, the Collector of Bombay informed claimant No.2 that the Collector of Bombay would be paying the amount of compensation to the claimant No.2 for the period commencing from 1st July 1951 as claimant No.2 had agreed to take constructive possession of the said plot Nos. 32 and 32A from the Muncipal Corporation of Greater Bombay. There are several letters in the compilation filed by the parties which clarify that cheques used to be issued by the Govt. of Maharashtra for payment of compensation directly in favour of claimant No.2 and claimant No.2 used to encash such cheques and forward receipts. This arrangement came into force latest by 1st July 1951. The claimant No.2 continued in constructive possession of land as a lease for about 20 years as if indenture of lease was duly executed. The Muncipal Corporation recognised claimant No. 2 as an actual lessee of the two plots for two decades and more. (g) On 12th May, 1961, the Special Land Acquisition Officer issued notification under section 4 of the Land Acquisition Act inter alia in respect of plot Nos. 32 and 32A. The Muncipal Corporation recognised claimant No. 2 as an actual lessee of the two plots for two decades and more. (g) On 12th May, 1961, the Special Land Acquisition Officer issued notification under section 4 of the Land Acquisition Act inter alia in respect of plot Nos. 32 and 32A. The said notification was followed by notification under section 6 of the Land Acquisition Act dated 7th February, 1962. The said plots continued to be under requisition until the acquisition proceedings were completed and Award was made in the matter i.e. on 13th February, 1970. The said plots were released from requisition and possession thereof was handed-over by the Requisition Branch of Collector of Bombay to claimant No. 2. Simultaneously possession of the said plots were taken over by the acquiring body from claimant No. 2. 3. It is a fact that the indenture of lease contemplated to be executed in favour of claimant No. 2 by the Municipal Commissioner was not executed by the Municipal Commissioner. It is also a fact that the Improvements Committee of the Muncipal Corporation had sanctioned the acceptance of the offer made by the claimant No.2 by a resolution passed at its meeting and had authorised the Muncipal Commissioner to convey acceptance of the offer and execute the Indenture of lease. It is also a fact that the entire amount of premium claimed by the Municipal Commissioner was duly paid by the claimant No.2 in full and in time. The plots of land were under requisition till awards were made by the Special Land Acquisition Officer (1). On 13th February, 1970, the awards was made by Special land Acquisition Officer. For the period commencing from 1st July, 1951 till about 1970, claimant No.2 was in constructive possession of the said plots of land with the consent, Knowledge an authority of the Municipal Corporation and used to receive amount of compensation from Collectorate as lessee of the said plots of land as if leases were already executed. Compilation of documents filed by the parties clearly indicate that a prima facie arrangement was arrived between the Muncipal authorities, the collector of Bombay ( Requisition Branch) and Claimant No. 2 hereunder liability of the Claimant No.2 was restricted to payment of Re. Compilation of documents filed by the parties clearly indicate that a prima facie arrangement was arrived between the Muncipal authorities, the collector of Bombay ( Requisition Branch) and Claimant No. 2 hereunder liability of the Claimant No.2 was restricted to payment of Re. 1/- per annum to the Muncipal Corporation and by way of rent and the rights of claimant No.2 were recognised to receive the amount of compensation from the Collector of Bombay, as if, claimant No.2 was entitled to payment of such compensation in his capacity as Lessee of the said plots of land. The claimant No.2 in face received the amount of compensation from Collector of Bombay. 4. Shri R.L.Dalal, the learned Counsel for Muncipal Corporation submits that in absence of execution of indenture of lease and the formal contract as contemplated under sections 69, 70 and 71 of the Bombay Muncipal Corporation Act, the claimant No.2 is not entitled to any share in the compensation amount deposited by Special land Acquisition Officer in this Court. Shri Dalal submits that claimant No.2 has no right to apportionment in the amount of compensation concerning the acquisition of above referred plots in view of non-execution of the contract under seal of Muncipal Corporation and in view of non-execution of documents of lease perpetuity as contemplated. The proposition formulated by Shri Dalal for acceptance of this Court are not acceptable to the Court having regard to the facts and circumstances of this case and having regard to the principles of law laid down in the binding judgment of Division Bench of this Court referred to herein after.:- 5. The definition of the expression "person interested" in section 3(b) of the Land Acquisition Act 1894 is an inclusive definition. The definition of the expression "person interested" in section 3(b) of the Land Acquisition Act 1894 is an inclusive definition. In (Dossibai Nasabhay v. P.N. Bharucha)1, 1960 Bombay Cases Reporter 1208, J.C. Shah, J. (As his Lordship ben was later on His Lordship became Chief Justice of India) speaking for the Bench observed that "the right to receive compensation for compulsory acquisition of land under the Land Acquisition Act, 1894 was not restricted to those pesons who have a legal or proprietary interest or estate in the land and was available to all persons who had a right or claim to land, even if such right or claim did not amount to legal or proprietary estate or interest in the land." It was held by the Court in this case that " for purpose of apportionment of compensation no distinction could be made between a case where a person was in possession under an agreement to take a lease which he was willing to carry out and which the lesson was also willing to carry out and a case in which the lessee had, in fact, been executed." It was also held in this case that "the compensation awarded for compulsory acquisition was for value of all interests which were extinguished and that compensation was liable to be distributed equitably amongst persons having various interests therein and the Court must proceed to apportion the compensation so that the aggregate value of all interests was equal to amount of compensation awarded. It was also held in this case by the Division Bench of our High Court that the application of doctrine of part performance under section 53-A of The Transfer of Property Act, 1882, was not restricted only to those cases where possession of the person entitled to claim protection was in actual physical possession thereof. In other words, the Doctrine of part performance could come to rescue of the claimant seeking share in compensation even when claimant was in legal constructive or juridical possession of land, although no Indenture of lease was executed by the lessor. 6. The Hon'ble Supreme Court has taken the same view in the case of (Sunderlal v. Premsukhdas)2, A.I.R. 1968 S.C. 366. 7. In (Municipal Corporation of Greater Bombay v. Ramadevi Shrinivas Ruia and another)3, A.I.R. 1982 Bom. 391, a somewhat similar question arose in a totally different context. 6. The Hon'ble Supreme Court has taken the same view in the case of (Sunderlal v. Premsukhdas)2, A.I.R. 1968 S.C. 366. 7. In (Municipal Corporation of Greater Bombay v. Ramadevi Shrinivas Ruia and another)3, A.I.R. 1982 Bom. 391, a somewhat similar question arose in a totally different context. This case is required to be examined closely. In this case the claimant had relied upon the ratio of the Division Bench judgment of our High Court in the case of Dossibai Nanabhoy v. P.H. Bharucha, 60 Bombay Law Reporter 1208. In this case the learned Single Judge had apportioned the compensation awarded relying on the ratio of the judgment. In Dossibai's case it was held that an intending lessee under a grant was a person interested in land and was entitled to claim apportionment. In Ramadevi's case possession of the land had not been parted with by the Muncipal Corporation to the intending lessee. In Ramadevi's case the transaction was merely at a stage of an agreement to enter into an agreement of lease and such an agreement was not made in compliance with the provisions contained in 69, 70 and 71 of Bombay Municipal Corporation Act. In para 7 of its judgment the Hon'ble Division Bench noticed the arguments of the learned Counsel Shri K. K. Singhvi appearing on behalf of Muncipal Corporation to the effect that the principles laid down in Dossibai's case could not be applied to Ramadevi's case because in Dossibai's case the tenant who was held entitled to apportionment of compensation was in possession of land in pursuance of an agreement of lease whereas in Ramadevi's case it was not so. In present case there is voluminous documentary evidence on record to indicate that constructive possession of the land was in fact and in law delivered by Muncipal Corporation to claimant No. 2 and the claimant No. 2 enjoyed rights of a lessee for two decades. The concept of constructive possession is known to law and in the circumstances of the case where the plots of lands were under required requisition handing over of constructive possession of the land by the Corporation to the lessees is liable to be treated on per with handing over of 'possession' of the land by Muncipal Corporation to the lessee for all purposes in part performance of transaction of lease. In para 10 of his judgment, in Ramadevi's case, Chandurkar, J., speaking for the Division Bench specifically observed as under. "The agreements were, however, never executed nor registered, nor was possession ever delivered." Thus the Court in this case was considerably impressed by the fact that possession of the land was still with the Muncipal Corporation for all purposes. While analysing the facts of Dossibai's case, Chandurkar, J., referred to findings of facts arrived at in that case in para 21 of his Judgment in Ramadevi's case. In Ramadevi's case the Hon'ble Division Bench held that in Dossibai's case although the second claimant had not acquired any interest as a tenant there being no registered lease, he was entitled to remain in possession of land as if he had obtained a lease in his favour. The Hon'ble Division Bench referred to the doctrine of part performance. The Hon'ble Division Bench illustrated the point by posing a question as to what would have happened if the lessor would have sued the lessee for his eviction merely because of non-execution of registered lease after all these years of lessee being in possession of land. It was held by the Court that in such case the lessee in occupation of the land would have been entitled to resist the suit for possession. In para 23 of the judgment, the Division Bench also quoted exclusively from the judgment of J.C. Shah, J., speaking for the Division Bench of this Court in Dossibai's case and observed that a person who was in occupation of land would be entitled to receive share in the compensation awarded although such person had no legal or propounding interest in the land as such. In para 31 of his Judgment the Division Bench observed as under. " It therefore, appears to us that the learned single Judge was in error in applying the ratio of the decision in Dossibai's case in the facts of the instant case. On the facts of the present case, the ratio of that case was not at all attracted and consequently the Order made by the learned Single Judge is liable to be set aside." Thus the Hon'ble Division Bench consisting of Chandurkar and Mehta, JJ., distinguished Dossibai's case having regard to different set of facts in the two cases. 8. On the facts of the present case, the ratio of that case was not at all attracted and consequently the Order made by the learned Single Judge is liable to be set aside." Thus the Hon'ble Division Bench consisting of Chandurkar and Mehta, JJ., distinguished Dossibai's case having regard to different set of facts in the two cases. 8. It must be stated in the passing that in Ramadevi's, case the learned Counsel for the Muncipal Corporation had heavily relied upon the judgment of Vaidya, J., dated 27th August, 1973. In First Appeal. Nos. 367 to 389 of 1964, in support of his view that the prospective lessee was not entitled to receive any compensation in absence of written contract. 9. In our case the claimant No. 2 in entitled to receive reasonable amount of compensation even though no contract in writing was executed between the Muncipal Commissioner and claimant No. 2 as such and no indenture of lease was executed and registered as required by the provisions contained in Transfer of Property Act in view of implementation of transaction of lease by handing over of constructive possession of land for two decades and acting upon transaction of lease in full pending execution of Indenture of lease. Having regard to the wider definition of the expression "person interested" in section 3(b) of the land Acquisition Act, 1894, the claimant No.2 shall have to be considered as a person interested in apportionment of compensation in view of the ratio of judgments of the Hon'ble Supreme Court and Division Bench referred to hereinabove. The claimant No.2 was in constructive possession of the land for a period of more than 20 years with the consent, knowledge and authority of The Muncipal Corporations as well as the Collector of Bombay (Requisition Branch). The Muncipal Commissioner had informed claimant No. 2 that the offer of claimant No.2 was duly accepted by the Improvement Committee of the Muncipal Corporation and that the liability of claimant No.2 to pay amount of rent to Muncipal Corporation was restricted to Re. 1/- per annum. For the purpose of Land Acquisition act, 1894, the dividing line between the applicability of the ratio of the two cases decided by Division Bench of our High Court is quite clear. 1/- per annum. For the purpose of Land Acquisition act, 1894, the dividing line between the applicability of the ratio of the two cases decided by Division Bench of our High Court is quite clear. If the intending lessee is merely a prospective lessee and the transaction is not implemented by handing over of actual or constructive lessee and the transaction is not implemented by handing over of actual or constructive possession, such prospective or intending lessee may not be entitled to any apportionment in the compensation awarded in absence of execution of an indenture of lease. In such a case the claim of intending claimant would be perhaps hit by reasons of the provisions contained in 69, 70 and 71 of Bombay Muncipal Corporation Act as well as the relevant provisions of Transfer of Property Act. If, however, the lesser has handed over physical or constructive possession of the land to the lessee and has implemented the transaction of lease pending execution of Indenture of lease such a person would be entitled to receive share in payment of compensation awarded on the footing as if the lease had been executed in favour of such a claimant. In all such cases, equity would intervene and the wider definition of person interested given in Land Acquisition Act would assist the lessee in claiming share in compensation awarded. The quantum of compensation receivable by the lessor and the lessee will have to be decided in each case having regard to the facts of the case. If I were to ask the question to myself as to whether claimant No. 2 would have been able to resist the suit of Municipal Corporation for return of constructive possession of land merely because of non execution of Indenture of lease. I would have to answer such question in the affirmative and in favour of the lessee. 10. Even in Dossibai's case no registered lease was executed. In our case the Collector of Bombay was duty bound to handover possession of the said lands to the claimant No. 2 on requisition order being revoked or withdrawn as Muncipal Commissioner had already written to the Collector of Bombay to the effect that the claimant No. 2 was entitled to obtain possession of the said plots of land in view of the premium payable having already been paid by claimant No.2. Shri R. L. Dalal, learned counsel for claimant No. 1 raises the following questions for consideration of the Court. "Whether claimant No. 2 would have been entitled to file a suit for specific performance in respect of the agreement to lease?" In view of the agreement to lease not being under seal." The learned Counsel submits that the claimant No.2 could not have been entitled to file any suit for specific performance as there was no contract under seal as contemplated under sections 70 and 71 of the Bombay Municipal Corporation Act and the contract not under seal could not bind the Municipal Corporation. If possession of the land was not handed over to claimant No.2 and claimant No.2 was required to file a suit for specific performance, such a suit would have perhaps failed. To this limited extent Mr. Dalal is right. However, the question posed by Mr. Dalal appears is too wide and is rather misconceived. The projection made by Mr. Dalal is divorced from facts of this case and is capable of misleading the Court with respect in a case where the lessee is placed in possession of the land by the lessor, the lessee need not necessarily sue for specific performance of the agreement to lease. In such a case if the lessee has enjoyed possession of the land for a period of more than 12 years, the lessee could continue to remain in possession and the leaser would not be able to dispossess the lessee and take advantage of its own wrong. If the matter is viewed in this perspective, it must follow that both parties are entitled to share in amount of compensation deposited in Court and such division must be effected fairly and reasonably. 11. By letter dated 28th March, 1951, the Muncipal Commissioner, the Estate Agent and Land Manager had informed claimant No.2 that the claimant No. 2 was liable to pay rent to Muncipal Corporation of Re. 1/- per annum on 1st July of each year w.e.f. 1st July 1951. In absence of any evidence to the contrary it must be presumed that the claimant No.2 must have paid Re. 1/- per annum to claimant No. 1. The Muncipal Corporation does not contend that the amount of nominal rent was not paid by claimant No. 2. 1/- per annum on 1st July of each year w.e.f. 1st July 1951. In absence of any evidence to the contrary it must be presumed that the claimant No.2 must have paid Re. 1/- per annum to claimant No. 1. The Muncipal Corporation does not contend that the amount of nominal rent was not paid by claimant No. 2. Assuming that the said amount of nominal rent was not paid by claimant No. 2 to claimant No. 1 the fact remains that the stipulated amount of rent payable by claimant No. 2 to claimant No.1 in respect of the said plots of land was Re. 1/- per annum only. If the capitalised method of compensation is to be followed, the Muncipal Corporation would be entitled to receive very small amount of compensation from the amount of compensation deposited by the Special land Acquisition Officer in Court. 12. It is of some relevance to refer to the different formulas followed by different High Courts for purpose of apportionment of compensation between the lesser and the lessee depending upon facts of each case. In Dossibai's case the Court fixed the ratio of apportionment between the landlord and tenant as 60/40. It was a case where lease was to be executed, for a period of 99 years renewable for another 99 years. In (Bai Sarasvati Jeshankar and another v. Agent. Bharatkhan Textile Manufacturing Co. Ltd. Ahmedabad and others), A.I.R. 1967 Gujrat 36, it was held by the Hon'ble High Court of Gujrat that the landlord was entitled to receive 1/4th amount of compensation and the lessees was entitled to 3/4th amount thereof. In other words the ratio of apportionment fixed by the High Court of Gujrat was 25/75. In (Union of India v. S. Ajit Singh and another )5 A.I.R. 1987 Delhi 151, the Division Bench of High Court of Delhi observed as under :- " In the present case the lease was for a period of 99 years and was carrying the promise of occupancy rights, the landlord losser had no better title than to get the rent agreed upon. In the circumstances, the lessor was certainly not entitled to more than 25% of the compensation." 13. In the circumstances, the lessor was certainly not entitled to more than 25% of the compensation." 13. Shri Satish Gandhi has relied upon the judgment of the Hon'ble Supreme Court in the case of (M.P. Sugar Mills v. U.P.)6, A.I.R. 1979 S.C. 621 and has invoked the doctrine of promissory estoppel enunciated in this case. Having regard to the wider definition of the expression "person interested" given in section 3(b) of the Land Acquisition Act, 1894 and its interpretation and application in various judgments referred to in earlier part of my Order, I do not consider it necessary to decide the question of promissory estoppel in this case. It is unnecessary to decide this question in this reference. On merits, the claimant No. 2 is entitled to reasonable share in amount of compensation payable under the award payable. 14. After taking an overall view of the matter and attaching due weightage to the fact that the land was under requisition and the claimant No. 2 never received actual physical possession of the said land at say point of time and all the equities of the case, I direct that the compensation deposited by the Special Land Acquisition Officer in Court be shared between The Muncipal Corporation and claimant No. 2 equally. The following issues arise for consideration of the Court : ISSUES : 1. Whether claimant No.2 is liable to be considered as a person interested in land for the purpose of claiming compensation under Land Acquisition Act (I of 1894)? 2. Whether the claimant No. 2 is entitled to any share in the amount of compensation awarded by the special land Acquisition officer ? 3. Whether claimant No. 1 is precluded in law from disputing the claim of claimant No. 2 to share compensation on principles of promissory estoppel ? 4. Whether claimant No. 1 alone is entitled to obtain payment of the amounts awarded under Award dated 30th March, 1970 ? 5. What Orders ? In view of the above discussions I answer the said issues as under : Issues No. 1 and 2 : Having regard to the facts of the case claimant No. 2 is liable to be considered as a person interested in apportionment of compensation. Issues No. 3 : Not necessary. Issues No. 4 : In negative. Issues Nos. 5 and 6 : As ordered below. Issues No. 3 : Not necessary. Issues No. 4 : In negative. Issues Nos. 5 and 6 : As ordered below. The Prothonotary and Senior Master is directed to release the amounts of Rs. 3,05,900/- deposited in this Court alongwith accrued interest thereon, if any, as under. 1. Half of the amount-Muncipal Corporation of Greater Bombay. 2. Half of the amount to claimant No. 2. 15. Having regard to the circumstances there shall be no order as to costs. 16. The Prothonotary and Senior Master shall permit withdrawal of the amount on the basis of ordinary copy of this Order duly authenticated by the Associate of this Court. 17. On application of Shri R. L. Dalal, the operation of this order is stayed till 31st December, 1992. 18. Issue of certified copy is expedited. Order accordingly. -----