1 1IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4669 OF 2009 1. Shantilal K. Somaiya and ors .. Petitioners Vs 1.State of Maharashtra and ors .. Respondents Mr S.U.Kamdar, Sr.Counsel, with Chetan Kapadia and V. V. Bommer i/b M/s Shaunak Satpute, for the petitioners. Mr R.M.Patne, AGP, for respondent nos. 1 to 8. Mr R. A. Malandkar, for respondent nos 9 to 11 – BMC. Mr S. R. Sathe, Sr. Counsel, with N.U.Bandrashetye i/b Ghanekar & Co for respondent no.12. CORAM : D.B.BHOSALE, J. DATE : 07/08/2009 PC: 1. Heard Mr Kamdar, learned senior counsel for the petitioners, Mr.Patne, learned AGP, for respondent nos 1 to 8, Mr Malandkar, learned counsel for respondent nos 9 to 11 and Mr Sathe, learned senior counsel for respondent no.12. 2. This writ petition under Articles 226 and 227 of the Constitution of India is basically directed against an order dated 14.1.2009 passed by the Addl.Chief Secretary, (Revenue), in T 2 Revision No.Nbhuha 2608/C.No.210/L-1, by which the said revision has been disposed of. The official translation, made by the Chief Translator and Interpreter’s Office, High Court, Bombay, (for short “the Official Translation”), of the operative portion of the order dated 14.1.2009 reads thus : 1. “The Revision Application of the Applicant Karamshi Tethabai Somaiya Trust has been rejected. 2. The order bearing No.CS-2506/M.No.12/L-1, dt.22/12/2006 of the Hon'ble Minister (Revenue) are appropriate. Moreover, the order in the Appeal bearing no.Appeal 616/2003, dt.08/11/2005 before the Deputy Director of Land Records, Konkan Division, Mumbai, is confirmed and the stay granted by the order dated 19/01/2006 in the matter is vacated. 3. The said orders are passed pursuant to order dt.10/01/2008 of the Hon'ble High Court, Mumbai and if the suit is pending in the Civil or other Court in respect of the property in question, then the same are passed, subject to the final decision in the said suit. 4. The said orders should be communicated to all the concerned persons.” 3. The revision was directed against the order dated 8.11.2005 passed by the Deputy Director Land Records (for short, “DDLR”) in Appeal No.616 of 2003, dismissing the appeal filed by the petitioners and confirming the directions issued vide 3 letter dated 26.2.1999 of the Superintendent, Land Records, Mumbai Suburban District, Mumbai. The official translation of the relevant portion of the letter dated 26.2.1999 reads thus : “Subject : Regarding survey of land purchased by Shanti Sadan Co-op Hsg Society Ltd. Regarding Survey of S.No. 292,i.e.City Survey No.638 at City Survey Kurla, Part-3. Reference; Your letter No.C.S.O.K./Kurla Part-3/S. No.292 Part/99, dated 16/1/99. This office has received the report in respect of the property under above subject and on verifying the said report it is found that survey of the land bearing Survey No.292 Part at Village Kurla, Part-3 has been carried out by your office under S.R. No.165/98 as per the request made by Shantk Sadan Co-op Hsg.Soc Ltd. The said land is found to be located on the Southern side of City Survey No.628. The Superintendent, Land Record, Mumbai City Survey has got it ascertained that the land surveyed under S.R.No.165/98 and the boundaries as shown by the applicant, does not come within the boundaries of Mumbai City. That means, it is proved that the land of Shanti Sadan Co-op Hsg Society is from out of Survey No.292 at Village Kurla, Part-3. However,it is seen that at the time of City Survey, said area was not included in the City Survey No.628. Considering the above fact, it appears that said area shall have to be included in City Survey Kurla, Part-3. Therefore, under this letter orders are being given that said area should be given the City Survey number next to the last City Survey number in the said village, the area admeasuring 3770.8, which 4 comes after Survey and which is in the possession of Shanti Sadan Co-op Hsg Soc.Ltd as shown by it, should be entered in the property register card and tenure thereof should be entered as “Agriculture”. The said action should be taken immediately and report to that effect should be submitted to this office.“ From perusal of the aforementioned orders passed by the revenue authorities, it appears that these proceedings arise from the application filed by respondent no.12 seeking measurement of the land purchased by them. 4. The petitioners are Trustees of “K. J. Somaiya Trust” and “The Somaiya Trust, Public Charitable Trusts registered under the provisions of the Bombay Public Trusts Act, 1950. They claim to be the owners of the land admeasuring 4,92,802.30 sq. yds equivalent to 4,12,046.78 square meters bearing Cadastral Survey No.2 and 2/2 Sion Division, Mumbai City District (for short, “Somaiya Trust Land”). The petitioners have purchased the Somaiya Trust land under a duly registered Deed of Conveyance dated 14.9.1962. The contesting respondent no.12 is a Co-operative Society. They claim to be in possession of a plot of land admeasuring 3770.8 square meters since beginning and this plot of land they claim to have purchased on or about 5 23.3.2004 from A. H. Wadia Charity Trust. According to respondent no.12, the plot of land purchased by them is located on the North-East corner of the Somaiya Trust land, forming a part of Revenue Survey No. 292, i.e the Wadia Trust land. Respondent no.12, before they purchased the plot of land, as aforestated, got the said plot demarcated. It is alleged that by demarcating their plot of land, they encroached upon the Somaiya Trust land to the extent of 1552 sq.meters which is the subject matter of the instant proceedings. The plot of land, demarcated was thereafter given C.T. S No.639, admeasuring 3770.8 sq. meters including the alleged encroached portion of 1552 sq. meters. 5. Some time in September, 2002, the petitioners claim that for the first time they learnt that the plot of land being claimed by respondent no.12, had been surveyed and measured and allotted a new city survey no.639 of Kurla Part 3, pursuant to the letter dated 26.2.1999 addressed by the Superintendent of Land Records, Mumbai City, to respondent no.5-City Survey Officer. It is against this letter dated 26.2.1999 (Exh. “J” to the petition), the petitioners filed an appeal before the Deputy Director of Land Records, Mumbai. The Deputy Director of Land Records, after having heard the parties and having gone through the 6 entire record, dismissed the appeal vide order dated 8.11.2005 (Exh.”U” to the petition). Feeling aggrieved by the order dated 8.11.2005, the petitioners filed a Revision before the State Government. The Revision was disposed of by the Minister vide order dated 22.12.2006. By this order, the order dated 26.2.1999 (Exhibit-J) passed by the Superintendent of Land Records and the order in appeal dated 8.11.2005 passed by the Deputy Director of Land Records were confirmed by the Minister. The order dated 22.12.2006 passed by the Minister was challenged before this Court in Writ Petition No.4584 of 2007. 6. In that writ petition (Writ Petition No.4584 of 2007), this court set aside the order dated 22.12.2006 passed by the Minister in the Revision and restored the Revision to file and directed the Principal Secretary, Revenue and Forest, Government of Maharashtra, to hear and decide the Revision afresh on merits. The stay, granted during pendency of the revision application on 19.1.2006, was continued till the hearing and final disposal of the revision. After this order, the Revision has been disposed of by the order dated 14.1.2009. The order passed in the revision is under challenge in the present writ petition. 7 7. It is the case of the petitioners that on 6.4.1999, respondent no.12 purchased a plot of land admeasuring approximately 3770.8 sq. meters from the Wadia Trust. The said plot is located at the North East Corner of the Somaiya Trusts land and forms a part of Survey No.292, i.e the Wadia Trust land. It is further alleged that respondent no.12 had purportedly demarcated this plot and, while doing so, they encroached upon the Somaiya Trust land to the extent of approximately 1552 sq. meters. There is a boundary dispute between these two lands. There was litigation, which was initiated in the year 1968, where certain tenants of the Wadia Trust allegedly encroached on the land of the Somaiya Trust. A civil suit, being Suit No. 7145 of 1968, was filed for the purpose of protecting the land from the encroacher by the Wadia Trust. Similarly, a suit being Suit No.8598 of 1969, was filed by the petitioners against one Vijaykumar Shukla, who had purchased a portion of Survey No. 292 from the Wadia Trust but was also encroaching upon the Somaiya Trust land. During the pendency of the suits, a joint survey was directed by the Superintendent of Land Records of the Bombay City and Bombay Suburban District to ascertain boundary between the two plots. The survey was, accordingly submitted to the Settlement Commissioner, who forwarded the same to the Government and the Government, in turn, issued a 8 Memorandum dated 13.12.1972, accepting the said survey. The said survey was notified on 13.12.1972. The City Civil Court, on 4.12.1990, passed an order in the above suits and held that the joint survey was without notice to the parties and, therefore, cannot be relied upon. The suits were decreed. The First Appeal No.776 of 1991 preferred against the Judgment and decree is pending in this court. 8. As against this, in short, the case of respondent no.12 is that on 26.2.1999 a letter was addressed by the Superintendent of Land Records to the City Survey Officer, Kurla, pointing out that the land in possession of respondent no.12, i..e 3770.8 sq. mtrs from Wadia Trust, forms a part of survey no.292 and since it was not incorporated in C. T. S. No. 638, a fresh C.T.S, namely, C.T.S Number 639 was assigned to the said plot of land. 9. After the writ petition (Writ Petition No.4584 of 2007) was disposed of vide order dated 10.1.2008, the revisional authority issued directions for carrying out fresh joint survey of the suit property. Accordingly, a joint survey was carried out and the City Survey Officer submitted his report to the Superintendent of Land Records, Mumbai Suburban District, on 15.9.2008. The fresh survey was admittedly carried out after giving notice to all 9 the concerned and in their presence. Based on the fresh survey, which was subsequently submitted to the Government by the Superintendent of Land Records, Mumbai Suburban District, and Superintendent of Mumbai City Survey Land Records, it appears, the Revisional Authority confirmed the demarcation and the map prepared on the basis of the 1972 survey. 10. It is against this backdrop, I have heard learned counsel for the parties for quite some time and with their assistance gone through the material to which my attention was specifically drawn. Mr Kamdar, learned senior counsel for the petitioners, at the outset, vehemently submitted that relying upon the 1972 survey, which had already been discarded by the City Civil Court in the aforementioned suits, was totally illegal on the part of the revisional authority. He submitted that the survey of 2008 giving two boundary lines of Bombay Suburban and Bombay City, which are overlapping and creating vacuum space i.e the space in both the districts, i.e. City and Suburban, is totally illegal and the survey ought to have been carried as per the provisions contained in the Maharahstra Land Revenue Code. He submitted that there should be one common line between the two adjoining districts. In other words, Mr Kamdar, submitted that the order passed by the revenue authorities in 10 the instant proceedings are based on the survey carried out on 10.10.1972, i.e the survey map of 1972, which had, in turn, been rejected by the court. He submitted that once the survey has been rejected by the court, being illegal and unlawful survey, it was not open to the revenue authorities to rely upon the same and to pass orders against the petitioners on the basis of their findings being founded on the said survey map of 1972. He submitted, that the judicial findings rendered by the City Civil Court ought not to have been discarded by the revenue authorities. He further submitted that the revenue authorities sought to carve out a plot of land for respondent no.12, which is purportedly purchased by them from A. H. Wadia Trust. That was done without ascertaining the actual boundary line and the revenue survey no.292 and cadestral survey no.2 and 2/2, which is from Mumbai City and proceeded to treat an enlarged area of revenue survey no.292 based on an erroneous boundary line, and carved out the same from the Somaiya Trust land. In short, he submitted that the entire basis of the respondents carving out the plot of land and allotting City Survey No.639 is erroneous as the respondents proceeded on the footing that the survey map of 1972 was legal, valid and binding. 11. Mr Sathe, learned senior counsel for respondent no.12, on 11 the other hand, invited my attention to the surveys carried out after 1972 in the presence of the parties and more particularly to the survey carried out on 15.9.2008. He submitted that the impugned orders are not based on the survey conducted in 1972, but the findings are recorded on the basis of the subsequent survey and, therefore, the challenge on the ground that the order dated 14.1.2009 is based on the 1972 survey must be rejected. He then submitted that all these questions cannot be gone into writ jurisdiction of this court under Articles 226 and 227 of the Constitution unless the findings recorded by the authorities below are perverse. The submissions of Mr Kamdar that the findings recorded by the authorities below are perverse, according to Mr Sathe, is factually incorrect since it is based on the assumption that the impugned orders are passed relying upon the 1972 survey. 12. I have given anxious thought to the submissions advanced by the learned senior counsel for the parties and have gone through the entire material to which my attention was drawn to find out whether the orders impugned deserve interference in writ jurisdiction of this court. It is true that initially the City Civil Court and thereafter this Court discarded the survey carried out in 1972 and the map drawn on the basis thereof and, therefore, 12 that survey, in any case, cannot be relied upon for deciding the questions raised in the petition. From perusal of the impugned orders and more particularly the judgment of the revisional authority dated 14.1.2009, it is clear that a fresh joint survey of the property was carried out and based on that the lands were demarcated and a piece of land purchased by respondent no.12 was given independent C.T.S No.639. It appears that after the fresh survey was conducted, the City Survey Officer submitted his report to the Superintendent of Land Records, Mumbai Suburban District, on 15.9.2008. In that, the area admeasuring 1344.9 sq. meters was shown towards West side of the border of Mumbai City District and the remaining area of 2425.9 sq. meters was shown within the City Survey Kurla District, Mumbai Suburban, which was given independent C.T.S No. 639. On 19.9.2008, the Superintendent of Land Records, Mumbai Suburban District and the Superintendent, Mumbai City Survey Land Records, submitted joint plan to the Government. In that plan, the boundaries of Mumbai City District and Mumbai Suburban District were determined vide M.R.No.10/08 dated 23.7.2008. It appears that the boundaries determined on the basis of the survey conducted in 2008 confirmed the boundaries of Mumbai Suburban District and Mumbai City as shown in the 1972 survey/plan. The Deputy Director of Land Records, Konkan 13 Division, Mumbai vide letter dated 14.11.2008, had submitted a report. In the report he has submitted that the suit property bearing C.T.S.No.639 is vacuum space between Mumbai City District and Mumbai Suburban District. This finding, in my opinion, is not based on the 1972 plan but it is based on the survey conducted in 2008. At this stage, it would be advantageous to reproduce the official translation of the relevant observations in the order dated 14.1.2009, which read thus : “As per 7/12 (extracts), the area of Survey no. 292, in accordance with the village records, is greater than its City Survey area. From this, it becomes clear that C.S.No.639, out of the many C.S numbers effected in respect of the land bearing Kurla S No.292, is a part of Original S.No.292. As per Kurla Village area map (plan), there is a creek portion adjoining to Survey no.292 and adjoining the said creek, there is a boundary of Mumbai City district. From this, it becomes clear that the area of the C.S no.639 is out of Kurla Survey no.292 and on perusing district boundary wise survey plan of the year 1972 of the area of Survey no.292 and the Survey plan of S.R.No.165/98, similarity is seen in both the plans, accordingly. Which means, it is proved that the land, purchased by Shanti Sadan Co-op.Housing Society Ltd, is from out of the Survey no.292. The area of C.S.No.639 is contiguous to Kurla C. S.no.628 and new C.S.No.639 has been given for the area determined as per the Survey and at that time also the said plan has been given for approval to the Collector, Mumbai City, by the letter Dt.16/1/1999 and accordingly, the Superintendent, Mumbai City has informed that the said property does not 14 fall within the boundary (limits) of Mumbai City. A limited issue to the extent of determining as to whether the land under subject, is within the limits of Mumbai Suburban District or Mumbai City District, is before me. Considering the Survey of the year 1972 and joint survey made twice and a boundary map (plan) in respect thereof and an opinion of the Superintendent, Land Records, Mumbai Suburban, to the effect that the said land is included (falling) in the Kurla Taluka and accordingly, the C.S.No.639 given as well as the opinion expressed by the Superintendent of Land Records, Mumbai City, to the effect that the land bearing the Survey no.639 does not come within the Mumbai City District, it becomes clear that the property bearing C.S.number having the area admeasuring 3770.8 sq.mts as mentioned in the property card of C.S. no.639, falls within the limits of Kurla Taluka of Mumbai Suburban District.” 13. In the circumstances, I am satisfied that the findings recorded by the authorities below are based not only on the 1972 survey, but it is based on the other material on record, including the subsequent surveys/demarcation, which deserve no interference by this court in exercise of the writ jurisdiction under Article 227 of the Constitution of India. 14. In the course of arguments, Mr Kamdar, on instructions, 15 submitted that the petitioners intend to file a civil suit for declaration, possession and other consequential reliefs in respect of the alleged encroachment on their land. He submitted that the civil court is likely to be influenced by the impugned orders and it would be difficult for the petitioners to establish their right in the suit property and to prove the encroachment by respondent no.12. Mr Sathe, in response to this, submitted that he has no objection if the Civil Court is directed to decide the suit on merits and uninfluenced by the observations made and the maps drawn in these proceedings by the revenue authorities. Having considered the submissions of the learned counsel for the parties, I pass the following order. If the petitioners institute any suit in Civil Court for declaration and possession of the alleged encroached portion of their land against respondent no.12 or any other encroacher, the concerned court shall decide the suit on merits in accordance with law and uninfluenced by the findings recorded and the maps drawn in the instant proceeding by the revenue authorities. The concerned court shall determine the rights of the parties in the suit property and shall decide whether there is any encroachment on the land of the petitioners by respondent no.12 and whether the petitioners are entitled for possession of 16 the encroached portion, purely on the basis of evidence that will be led by the parties in the suit. It is open to the petitioners to approach the revenue authorities afresh after the rights of the parties in respect of the suit property are adjudicated, for effecting necessary changes in the revenue record including the maps drawn in these proceedings. With these observations, the writ petition is disposed of. All contentions of the parties insofar as their rights in the property and more particularly the land admeasuring 1552 sq. meters out of City Survey No.639 are kept open. (D. B. Bhosale, J.) 17