-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1202 OF 2001 1. Gorai Machhimar Sahakari Sanstha Limited, ) a registered society having office at Gorai Village, ) Koliwada Via Borivli, Mumbai-400 091 ) 2. Noel Vincent Kinny of Mumbai, Indian Inhabitant, ) President of First Petitioner having office at Gorai Village ) Koliwada Via Borivli, Mumbai-400 091 )..Petitioners versus 1. The State of Maharashtra ) through its Law and Judiciary Department, Mantralaya, ) M. Cama Road, Mumbai-400 032. ) 2. Mr. Narayan Rane of Mumbai, Indian Inhabitant, ) residing at 9/301, E-Wing, Ganga Estate, Atul Park, ) 5th Road, Chembur, Mumbai-400 071 ) 3. Essel Infraprojects Limited, ) having its office at Continental Building, ) 135, Dr. Annie Besant Road, Mumbai-400 018 )..Respondents Mr. A.J. Almeida for the petitioners. Mr. K.R. Belosay, “A” Panel Counsel, for respondent No.1-State. Mr. V.C. Kotwal, Senior Counsel, with Mr. Prakash Shah, instructed by M/s. DSK Legal, for respondent No.3. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JULY 18 , 2009 -2- ORAL JUDGMENT (Per P.B. MAJMUDAR, J.): 1. By way of this petition, the petitioners, Gorai Machhimar Sahakari Sanstha Limited and its President, have challenged the order passed by respondent No.2 dated 29th April, 1997, a copy of which is annexed as Exhibit- B to the petition, on the ground that the same is illegal. The petitioners have also made various prayers such as directing the respondents to allot the land in dispute i.e. Survey Nos. 268, 269,270A and 270B in Gorai Village to the first petitioner society in accordance with the Government Circular dated 4th February,1983. It is also prayed that respondent No.1 may be restrained from carrying on building, land reclamation or any other activity upon land bearing Survey Nos. 268, 269,270A and 270B in Gorai Village. 2. During the course of hearing of the petition, learned counsel for the petitioners has fairly submitted that though various reliefs have been claimed in the petition, he is confining the reliefs only in connection with the impugned order passed by respondent No.2, who at the relevant time was the Revenue Minister. It is submitted that regarding other prayers, the petitioners are not pressing the same with a view to take appropriate recourse as per law. In this petition, this Court is, therefore, required to only examine the legality and validity of the impugned order dated 29th April, 1997 . -3- 3. It is the case of the petitioners that the petitioners are vitally interested in the disputed land which is the subject matter of this petition on the ground that the said land in question is khazan land and that the same has been used by the members of the petitioner No.1 for the purpose of fishing activities. It is the case of the petitioners that by way of circular dated 4th February, 1983, the petitioners rights were recognised by the State. It is submitted that, however, because of the impugned order passed by the then Revenue Minister, respondent No.2 herein, respondent No. 3 is not allowing the members of the petitioner No.1 to carry out the fishing activities. It is the case of the petitioners that since fishing is their traditional avocation, they are carrying out the said activity since time immemorial and were using the land in question for activities connected with fishing but now the petitioners are prevented by respondent No. 3 from enjoying the said activities on the ground that the disputed land belongs to respondent No.3 and not of the ownership of the State Government. In order to appreciate the grievance of the petitioners, certain factual aspects which are not in dispute are required to be taken into consideration. 4. The lands in question i.e. Survey Nos. 268, 269,270A and 270B in Gorai Village were subject to a lease executed between the State and one Shri Shamrao Pandurang Velkar for a period of 999 years. The said lease deed was executed as back as on 16th June, 1885. In the year 1896, the State Government terminated the said lease on the ground that the lessee has committed breach of -4- the terms of the said lease deed. The concerned lessee thereafter instituted proceedings in this Court by way of a suit on the ground that the lessee had not committed any breach of the terms of the lease. That suit was ultimately decreed in appeal by this Court by holding that the lessee had not committed breach of the terms of lease and it was found that the lease was valid and subsisting. 5. Subsequently, in the year 1944, the concerned District Collector forfeited the said land on the ground of breach of terms and conditions of the lease deed. On the basis of the same, mutation entry No. 470/44 in the name of the State was recorded in the revenue record and from the said date onwards, the name of the State appeared in the revenue record showing to be the owner and in occupation of the aforesaid lands in question. 6. After considerable time in the year 1972, a civil suit was filed by the heirs of late Shamrao Pandurang Velkar (original lessee) being Suit No. 42 of 1972 for partition between the heirs of deceased Shamrao Velkar. It is pointed out to the Court that a consent decree was passed in the said suit and on the basis of the same, the said land was put to auction by the Court Receiver. 7. One M/s. Skipper Village Resorts Limited purchased the said land in auction which sale was subsequently confirmed by the Court. So far as the -5- aforesaid suit is concerned, as pointed out earlier, the same was filed by the heirs of the deceased Shamrao Velkar. Ultimately the heirs of the deceased Shamrao Velkar settled the suit which was a suit for partition. In the said suit, the State Government or any of the revenue officers were not made parties. 8. Subsequently in January, 1985, M/s. Spot Builders Pvt. Ltd., which was the subsidiary of M/s. Skipper Village Resorts Limited, preferred an application to the Tahsildar for transferring the land in question in their name. At that time, M/s. Spot Builders Pvt. Ltd. , realised that the land in question stood in the name of the State Government as there was no revenue entry in favour of deceased Shamrao Velkar or in favour of his heirs at the relevant time. On the basis of the said application submitted by M/s. Spot Builders Pvt. Ltd. , the Sub-Divisional Officer, Bombay, conducted an enquiry under Section 20 (2) of the Maharashtra Land Revenue Code, 1966, hereinafter referred to as “the Code”. The said officer by his order dated 3rd March, 1986 decided that the claim of M/s. Spot Builders Pvt. Ltd. was just and proper. The entry which was in existence since 1944 was accordingly set aside in the said enquiry. It was ordered that the name of the Government may be deleted from the revenue record and the name of M/s. Spot Builders Pvt. Ltd. should be shown in the revenue record. -6- 9. The aforesaid order of the Sub-Divisional Officer dated 3rd March, 1986 was challenged by the Tahsildar, Borivli, by way of an appeal before the Deputy District Collector (Appeals). The said appeal was rejected by the appellate authority by order dated 26th December, 1986. Subsequently, the Commissioner, Konkan Division, suo motu took the matter in revision. The Commissioner, Konkan Division, by order dated 13th September, 1988 set aside the orders passed by the Sb-Divisional Officer as well as by the appellate authority. The Commissioner, Konkan Division observed thus: “In the result, I have come to the conclusion that the enquiry under Section 20(2) of the Maharashtra Land Revenue Code undertaken by the Sub Divisional Officer, B.S.D, is ab initio void. Consequently the decision in appeal by the Deputy Collector (Appeals) Bombay also renders itself ab initio void. The lands involved in this matter are Government lands as declared by the revision Survey of 1926-27 and the decision in the enquiry made by the C.T.S. Enquiry Officer in 1968. The respondents have no subsisting right in the lands. The mutations made in the record of rights pursuant to the decision of the lower appellate court should be cancelled and the lands should be entered in the name of State Government.” 10. The aforesaid order of the Commissioner, Konkan Division, was challenged by M/s. Spot Builders Pvt. Ltd. By way of a writ petition being Writ Petition No. 3540 of 1988. The said writ petition was rejected on 19th December, 1988 on the ground that highly disputed questions of fact were involved in the matter. The aforesaid order was challenged by the said M/s. Spot Builders Pvt. Ltd. by way of an appeal being L.P.A. No. 12 of 1989. -7- However, the said appeal was withdrawn. 11. The said M/s. Spot Builders Pvt. Ltd. thereafter instituted a civil suit being Suit No. 1161 of 1989 on the Original Side of this Court claiming ownership over the lands in question as well as for other ancillary reliefs. The said suit is still pending before this Court, as pointed out by both the learned counsel appearing for the parties. 12. At this stage reference is required to be made to two separate orders passed by the learned single Judge in Suit No. 1161 of 1989 filed by Spot Builders Pvt. Ltd. through whom respondent No.3 is claiming a right over the disputed lands. In the said suit a Notice of Motion bearing No. 984 of 1989 was preferred by M/s. Spot Builders Pvt. Ltd. A learned single Judge of this Court on 2nd April, 1991, while disposing of the said Notice of Motion observed as under: “2. I make it clear that the Applicants cannot claim any higher right than what the Plaintiffs had claimed in the present suit. They are being brought on record mainly because of the order of the Company Court passed on 31.7.1989. I also make it clear that there is no question of the said Applicants making any complaint or grievance that they have not been heard by the Government in the inquiry conducted by Defendant No.2. This is because the Plaintiffs viz. M/s. Spot Builders Pvt. Ltd. have been heard extensively at the time of the inquiry. 3. In the notice of motion, the Plaintiffs are seeking a relief of injunction restraining Defendants 1 and 2 from disturbing their possession, use, enjoyment and -8- development of certain properties described in Exhibit “A” to the Plaint. The said Exhibit “A” mentions in all 8 properties. But we are concerned with only Survey Nos. 268, 269, 270-A and 270-B. The Government is not concerned with the other Survey Numbers, as far as this suit is concerned. 4. It is the claim of the Plaintiffs that they purchased the suit property as described in Exhibit “A” in an auction sale held on 26.6.1981 in the High Court Suit No. 42 of 1972. That suit came to be filed by other Defendants, inter se, who claim to be the owners of the properties mentioned in Exhibit “A”. It appears, initially the suit was for partition and for various other reliefs. However, finally, the suit came to be disposed of by an order for sale of the suit properties. It appears that Court Receiver had been appointed in respect of these properties. In the said suit, it is the case of the Plaintiffs that pursuant to the said sale held on 26.6.1981 Court Receiver put them in possession on 25.6.1982. There is a receipt passed by the Plaintiffs in favour of the Court Receiver, which is at Exhibit “C” to th Plaint. 5. The Plaintiffs say that after they purchased the property, they made an application to the revenue authorities and accordingly, after an inquiry, their name came to be entered in the record of rights, initially on 3.3.1988 by the Sub-Divisional Officer. Thereafter there was an appeal against the same by the Government. That appeal also came to be rejected and the order of the Sub- Divisional Officer was confirmed by the Deputy Collector by his order dated 24.12.1986. 5-A. However, Defendant No.2 – the Commissioner, Konkan Division, decided to hold an enquiry under Section 257 of the Maharashtra Land Revenue Code and accordingly he issued a notice dated 24.3.1988 to the parties. After notice, parties appeared before the Commissioner. The Commissioner heard the parties and the Government Pleader. Finally, by an order dated 13.9.1988 he reversed the order of the Sub-Divisional Officer and directed that the mutations made in the record of rights pursuant to the decision of the lower appellate Court should be cancelled and the land should be entered -9- in the name of the State Government. 6. It appears that as against this order of the Commissioner, the Plaintiffs filed a writ petition bearing No. 3450 of 1988, which came to be rejected on the ground that there were several disputed questions of facts. Thereafter, after giving a notice under Section 80, Code of Civil Procedure, the Plaintiffs filed the present suit. 7. As far as this motion is concerned, the Plaintiffs claim to be in possession. Their right is based on the fact that they had purchased this property in an auction sale held on 26.6.1981. Their trump-card is the receipt passed by them in favour of the Court Receiver on 25.6.1982. 8. The land in question is described in Exhibit’A’ as ‘khazan lands’. Obviously, it is a marshy land and perhaps during the high tide, the entire land is submerged under water. Excepting the assertion on the part of the Plaintiffs that they have been put in possession of this land and that prior to their being in possession, Velkars’ family, name,y, the other Defendants were in possession, there is no material on record whatsoever to substantiate their contention. 9. It appears that on 18.6.1885 the Government had leased out in all 760 acres of land to the said Velkars for a period of 999 years. The record shows that, that the position continued till about 1926-27. Sometime in 1926-27, the Government purported to resume the land, apparently on the ground that the land had not been reclaimed by the Velkars for the purpose of cultivation. There is some controversy as to whether the Government could have demanded a certain assessment in respect of this land or not. As far as this notice of motion is concerned, it is not necessary to go into the said controversy. However, we have a clear evidence that as on 3.7.1944 there is an entry in the record of rights showing the said lands in the name of the Government. The record shows that the name of one Sunderrao Shamrao (Velkar) was deleted and Government’s name was brought on record. This was verified on 20.11.1944 and thereafter it was certified by the Extra Aval Karkun on 22.2.1946. This entry has continued throughout till the same was -10- cancelled by the Sub-Divisional Officer’s order on or about 5.5.1986. Therefore, as far as the record is concerned, it is clear that the land had throughout stood in the name of the Government. 10. The record further shows that sometime in 1965 one of the Velkars died and the heirs of the said Velkar made an application for bringing their names on record in the village khata. Significantly, the properties mentioned therein did not include them ‘khajas lands’, which are the subject matter of this Notice of Motion. Thereafter, there is also a letter dated 11.9.1985 written by M/s. Minocher Hiralal & Co. Attorneys on behalf of the Velkars in which they claimed that they were the owners of the lands and they requested the Mamlatdar to make certain entries. The said letter includes Survey Nos. 268 and 269. Though the Attorneys requested to effect mutation of the names, significantly, the Government did not oblige them. In the result the entry made on 3.7.1944 continued to be in the name of the Government. Thereafter, in 1968 an inquiry was held. In the inquiry, one of the Velkars appeared before the Inquiry Officer. The order passed in the said inquiry has been annexed to the affidavit in reply dated 19.10.1989 as Exhibit No.8. That clearly shows that Velkars were aware that the land had been shown in the name of the Government and that they were aware of that, since about 1954-55. The order further says that the Velkars did not appeal against the said order even though they were aware of the fact that the land had been shown in the name of the Government since 1944. 11. All the record of rights have been annexed to the affidavit in reply showing that the Government has continued to be shown in possession of these lands. 12. Therefore, it is only on the basis of the suit filed by the Velkars inter se, the Plaintiffs are claiming a right in respect of these lands. If Velkars had no right whatsoever, there is no question of the Plaintiffs getting any right in respect of these lands. Just because Velkars have filed the consent terms and just because Court Receiver has been appointed Receiver in respect of these suit lands, it does not mean the Government ceases to have any right in respect of the property. The Government was never a party -11- to the said suit. Mr. Mehta submits that the receipt passed in favour of the Court Receiver clearly shows that Court Receiver has handed over possession of the entire land to the Plaintiffs. I must say that in all probability the receipt is only a receipt of possession on paper only. There is nothing to show that the Court Receiver, had, in fact, handed over physical possession of the land. There is also nothing on record to show the manner of the user of the land by Velkars or even by the Court Receiver at any time. There is also nothing on record to show that as from 1944, Velkars or the Plaintiffs have paid any amount by way of revenue or otherwise to the Government authorities. Therefore, excepting an oral assertion on the part of the Plaintiffs that Velkars were in possession of this land, there is no other material on record. 13. Miss Anklesaria, learned Government Pleader submitted that the Government is in possession of these lands. In para 5 of its affidavit in reply, the Government has set out how this land has been used and is given to others for the purpose of quarrying. Thus, it comes to this that the the Plaintiffs have no prima facie case whatsoever to claim that they are in possession of this land or have any right in relation to this land.” 13. The learned Judge, however, granted status quo for for six weeks as the prayer was made to extend the injunction order. 14. Against the aforesaid order, an Appeal being No. 643 of 1991 was filed by respondent No.3. In the Notice of Motion filed in the said Appeal, a Division Bench of this Court on 16th August, 1991 appointed Court Receiver of the lands bearing Survey Nos. 268 and 269 of village Gorai. It was directed that the Court Receiver shall permit the appellants and their employees and -12- customers to use the road upon the said lands to approach their recreation centre and that the appellants shall be the Court Receiver’s agents in that behalf. Accordingly, it is pointed out that respondent No.3 is acting as the Court Receiver’s agent regarding the said properties. 15. It seems that subsequently, M/s. Spot Builders Pvt. Ltd. was amalgamated with M/s. Essel Amusement Parks (India ) Ltd. The name was subsequently changed to Pan India Paryatan Ltd, who is joined as respondent No.3 in this petition. We are now informed that even the name of respondent No.3 is also changed subsequently to Essel Infraprojects Limited. The cause title is also accordingly amended by incorporating the new name as Respondent No. 3 in this petition. 16. Going back to the revenue proceedings, Respondent No.2, as a Revenue Minister exercising the appellate powers of the State Government, by his order dated 29th April, 1997, set aside the order of the Commissioner in an appeal preferred by Respondent No.3 herein. The aforesaid order is challenged by the petitioners in the instant petition on the ground that respondent No.2 could not have set aside the said order in appeal as the appeal was filed against the order of the Commissioner after more than eight years and one month of the said order. The challenge is also on the ground that since 1944, the name of original lessee, Shamrao Velkar, stood deleted from the revenue record and, therefore, -13- after a lapse of so many years, the said order should not have been set aside by the Sub-Divisional Officer, Bombay, by holding an enquiry under Section 20 (2) of the Code. It is submitted that the Commissioner, Konkan Division, was perfectly justified in exercising the revisional power and that this is nothing but a case of fraud especially when in a partition suit filed by the heirs of said Shamrao Velkar the State Government, in whose favour there was already an entry in the revenue records since long, was not joined as a party. It is submitted by the learned counsel for the petitioners that prior to respondent No.2 deciding the appeal as a Revenue Minister, a meeting was held under the Chairmanship of the then Chief Minister on 19th February, 1996 which meeting was also attended by respondent No.2, wherein it was decided that the order passed by the Commissioner could be challenged by way of an appeal. It is the case of the petitioners that the said meeting was attended by the representative of respondent No.3 and a decision was taken by which respondent No. 3 was advised to file an appeal before respondent No.2 and ultimately the said respondent No.3 filed such an appeal before respondent No.2 which appeal was allowed by respondent No.2 by the impugned order. It is submitted that hearing of such appeal by respondent No.2, the then Revenue Minister, is nothing but misuse of powers conferred on the State Government under the Code as it was pre-determined to allow such an appeal well in advance. It is further submitted that since the petitioners were not parties to the said proceedings, they were not aware about such proceedings. On the basis of the said order, the members of -14- the Petitioner No.1-Association were prevented from carrying out their fishing activities. It is the case of the petitioners that in the year 1998, the third respondent started constructing a bund upon the said land and tried to destroy the mangroves and at that stage the petitioners filed a writ petition being Writ Petition No. 2227 of 1999. The said writ petition was dismissed by this Court vide order dated 20th January, 2000, directing the petitioners to approach the Maharashtra Coastal Zone Management Authority. It is the case of the petitioners that subsequently the petitioners again filed another writ petition being Writ Petition No. 906 of 2001 wherein a direction came to be issued to the Maharashtra Coastal Zone Management Authority to hear the petitioners and pass appropriate orders. It is submitted that the said authority rejected the claim of the Petitioners and allowed respondent No. 3 to carry on construction of bund. The petitioners thereafter have filed a substantive writ petition being Writ Petition No. 280 of 2005, which is pending before this Court. The petitioners were pursuing the said issue before the appropriate authority and it is subsequently on realisation that respondent No.3 is claiming ownership rights in view of the order passed by respondent No.2, that this petition has been filed seeking the reliefs mentioned above. 17. The order of respondent No.2 is challenged on the ground that the said order is