1 wp7500-08.group.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7500 OF 2008 Mira Bhayandar Builders and Development Welfare Association and another. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.6986 OF 2008 Suresh Devchand Shah and others. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.6994 OF 2008 Haresh J. Patil and others. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH CIVIL APPLICATION NO.3103 OF 2010 IN WRIT PETITION NO.6994 OF 2008 Janabai Balkrishna Patil and others. ..Applicants -Versus- Haresh J. Patil and others. ..Respondents WITH WRIT PETITION NO.7012 OF 2008 M/s New Heavens Pvt.Ltd. and another. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents 2 wp7500-08.group.sxw WITH WRIT PETITION NO.7487 OF 2008 Suresh Devchand Shah and others. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7488 OF 2008 Simon B. Lopez. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7489 OF 2008 Trisa John Mendonsa and others. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7490 OF 2008 R.N.A. Builders (N.G.) Proprietary Concern. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7496 OF 2008 Philip Jasin Rebellow (decd) and others. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents 3 wp7500-08.group.sxw WITH WRIT PETITION NO.7988 OF 2008 Harshad Poonamchand Doshi. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7989 OF 2008 Harshad Poonamchand Doshi. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.7990 OF 2008 Harshad Poonamchand Doshi. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH WRIT PETITION NO.8000 OF 2008 Shyamsunder Radheyshyam Agarwal. ..Petitioners -Versus- The State of Maharashtra and others. ..Respondents WITH CIVIL APPLICATION NO.3103 OF 2010 IN WRIT PETITION NO.6994 OF2008 Janabai Balkrishna Patil and others. ..Applicants -Versus- Haresh Jagdeo Patil and others. ..Respondents 4 wp7500-08.group.sxw Mr.R.A.Shah i/b M/s Mansukhlal Hiralal & Company, for the Petitioners in Writ Petition No.7500/2008. Mr.K.S.Dewal, for the Petitioners in Writ Petition Nos.6986/2008, 7012/2008, 7487/2008, 7488/2008, 7489/2008, 7490/2008, 7496/2008, 7989/2008 and 7990/2008. Mr.D.G.Naik, for the Petitioners in Writ Petition No.7988/2008. Mr.P.S.Dani with Mr.R.D.Suryawanshi, for the Petitioners in Writ Petition No.6994/2008. Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Sharan Jagtiani and Sheetal Shah i/b M/s Mehta & Girdharlal, for the Respondent No.3 in Writ Petition No.6994/2008 and 7500/2008. Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Vineet B. Naik & Sheetal Shah i/b M/s Mehta & Girdharlal, for the Respondent No.3 in Writ Petition No.6986/2008. Mr.R.M.Patne, AGP, for the Respondent Nos.1 and 2 in all Writ Petitions. Mr.R.S.Apte, Senior Advocate with Mr.Mandar Limaye, for the Respondent No.4 in Writ Petition No.7500/2008. Mr.Shrikant Shah with Sheetal Shah i/b Mehta & Girdharlal, for the Respondent No.3 in Writ Petition Nos.7487/2008, 7488/2008, 7496/2008, 7988/2008, 7989/2008, 7489/2008 and 7990/2008. Mr.Vineet B. Naik with Sheetal Shah i/b Mehta & Girdharlal, for the Respondent No.3 in Writ Petition No.8000/2008 and 7490/2008. Mr.Aspi Chinoy and Mr.P.K.Dhakephalkar, Senior Advocates with Mr.Vineet Naik, Mr.Sharan Jagtiani & Sheetal Shah, i/b Mehta & Girdharlal for the Respondent No.3 in Writ Petition No.7012/2008. 5 wp7500-08.group.sxw CORAM : S.C.DHARMADHIKARI, J. 14th & 15th July, 2011. P.C.: . By these Writ Petitions under Article 227 of the Constitution of India, each of the Petitioner impugns the order dated 5th September 2008 which has been passed by the Collector, Thane. 2 The Petitioners claim to be owners/occupants/holders of certain lands in Bhayander block of Thane district. It is their claim that non-agriculture user permissions have been granted in their favour by the Collector of Thane district. It is alleged that the said non-agriculture permissions were challenged by M/s Estate Investment Company Pvt.Ltd. (Respondent No.3) before the Commissioner. The Commissioner dismissed the appeal. Thereafter, there was revision preferred before the Officer on Special Duty which also met with the same fate. Against this order, Writ Petition No.8954/2005 was filed. The said Writ Petition is admitted and an interim order was passed staying the effect of the Officer on Special Duty’s order dated 4th July 2005. These facts are 6 wp7500-08.group.sxw taken from Writ Petition No.6986/2008, but they appear to be more or less common in other matters also. 3 The Petitioners’ case is that non-agriculture permissions which were granted in favour of the Petitioners came to be set aside. However, when the said orders are passed pursuant to certain directions in Writ Petition No.5118/1995 in this Court, so also, the Petitioners being impleaded as party Respondents to the said Writ Petition, then, least that was expected was that the Collector issues them a notice and hears them in the proceedings in which the impugned order has been passed. 4 It was pointed out that the said Estate Investment Company claims that in the year 1870 a lease deed was executed in favour of Ramchandra Laxmanji. That lease deed grants lease in respect of certain lands for a period of 999 years. It is stated that the rights of said Ramchandra Laxmanji devolved upon Jayabai Bhadrasen, Govindram Brothers and another and eventually three different Deeds of Assignment were executed in the year 1945. Thus, the Estate Investment Company stepped into the shoes of 7 wp7500-08.group.sxw Ramchandra Laxmanji, Jayabai Bhadrasen, Govindram Brothers and another and claimed to be Government lessees/ land holders/ superior holders/ occupants/ owners of the lands in dispute. Pointing out the lease deed and its recitals, it is contended that the names of the predecessors in title of the present Petitioners were entered into the revenue record much prior to the acquisition of rights by the Estate Investment Company. Reliance is placed on the proceedings disputing the lease deed itself and particularly Appeal No.428/1878 (Waman Bhiwaji v/s Vinayak Ramchandra Laxmanji), so also, Appeal No.292/1880 between the same parties. Reliance is also placed upon the order passed in Appeal No.230/1947 (The Estate Investment Company v/s Shapurji Manekji Kotwal), which has been decided by a Division Bench of this Court. 5 It is submitted that if the Estate Investment Company were not holders in respect of the disputed lands, then, they cannot have benefit of certain notifications. Attention of this Court is invited to the Salesette Estates (Land Revenue Exemption Abolition) Act, 1951 (for short “Salesette Act”) and it is contended that the name of the Estate Investment Company was removed from the occupancy 8 wp7500-08.group.sxw column and entered into other rights column in the year 1954. The lands were released from the Management on 1st October 1957 and on 28th March 1976, the names of parties like the Petitioners appearing in other rights column, came to be removed from record of rights. That removal was challenged and the authorities passed an order on 28th January 1989 directing re-entering the name of the Estate Investment Company in other rights column, without any remark as regards to crop share. This order has not been challenged. It is submitted that during this entire period, the Petitioners and their predecessors-in-title, so also, other occupants were in actual use and occupation of the lands and they have been enjoying them as owners and several transactions were also entered into with the third parties. There are also litigations wherein the Petitioners and such other persons have been claiming themselves as owners/landlords. Reference is also made to such proceedings where the Estate Investment Company is also party. Further, reliance is placed on Writ Petition No.5049/1988 filed in the year 1988 by the Estate Investment Company. My attention is invited to the prayers of this Writ Petition and it is contended that eventually this Writ Petition has been withdrawn unconditionally. Yet, 9 wp7500-08.group.sxw in the year 1995 the Estate Investment Company filed Writ Petition No.5118/1995 seeking direction that none of the lands which are included in the lease deed and termed as “Eksali” lands can be subjected to the non-agriculture use without the consent of the said Company. That Writ Petition was placed before a Division Bench of this Court and an order came to be passed therein on 3rd April 2006. This Court declined to entertain the challenge and considered the request of the Estate Investment Company by holding that, in a petition under Article 226 of the Constitution of India, it would not be possible to exercise jurisdiction for deciding their status as well as the nature of the lands. All this can be more efficaciously done by the concerned revenue authorities or in the alternate by filing a civil suit. Holding thus, this Court proceeded to dispose of this Writ Petition on the ground that there is an alternate and equally efficacious remedy available to the Estate Investment Company. 6 A review petition being Review Petition No.82/2006 filed in this Writ Petition to review the order dated 3rd April 2006, also met with the same fate of dismissal as is clear from the order dated 30th June 2006. My attention is invited to certain clarifications given in 10 wp7500-08.group.sxw the order on the review petition and it is submitted that all the more the order clarifies the position that the Estate Investment Company could not have invoked the jurisdiction and authority of the authorities under the Land Revenue Code and its remedy was only to file a suit to establish its title. 7 It is contended that despite such clear position, the Estate Investment Company prevailed upon the Collector to conduct an inquiry under Section 3 of the Salesette Act. My attention is invited to certain notices issued by the Collector asking the parties to remain present with the relevant papers. It is stated that the matter appeared from time to time and the proceedings were adjourned, but at no point of time, either the Petitioners/their representatives/ Advocates were heard. My attention is also invited to the Roznama maintained in the office of Collector, Thane and it is submitted that it is subsequently that the Petitioners learnt that impugned order was passed on 5th September 2008 by concluding the proceedings. This information was given to the Petitioners only by some other parties who had also applied for intervention. 11 wp7500-08.group.sxw 8 Therefore, aggrieved and dissatisfied with this order, that these Writ Petitions have been filed. 9 Mr.Dewal, learned counsel appearing for the Petitioners in Writ Petition No.6986/2008 and some other Writ Petitions, submits that the inquiry was commenced at the instance of the Estate Investment Company. He submits that if the Salesette Act is perused in its entirety, there is no inquiry contemplated either under Section 3 or 7 thereof. He submits that the inquiry that was commenced and conducted, so also, concluded vide the impugned order, could not be said to be an adjudication on title of the Estate Investment Company in the subject lands. Yet, in the garb of this inquiry, what has been decided is that the Estate Investment Company is a superior holder and, therefore, the lands could be claimed by the said Company. Once such findings are recorded and the direction finally given is to remove the names of parties like the Petitioners from the revenue record, then, it cannot be held that the only intended purpose of this inquiry was to determine the liability to pay land revenue. My attention is invited to this order in detail and it is submitted that once the Estate Investment Company has not 12 wp7500-08.group.sxw challenged the earlier order of removal of its name from the records of right, then, the inquiry at its instance to reopen the proceedings concluded by the order dated 28th January 1989, was a course clearly impermissible in law. 10 Both Mr.Dewal and Mr.Dani, learned counsel appearing for the Petitioners in Writ Petition No.6994/2008, contended that the impugned order is vitiated by non-observance of the principles of natural justice and on that ground alone, it should be set aside. It is contended by both that certain benefits flowed from the earlier proceedings and the orders made therein namely order dated 28th January 1989 and these benefits were availed of by the parties like the Petitioners and therefore, they are clearly affected by the subject inquiry. In such circumstances, without participation of the affected parties and without considering their objections, the impugned orders could not have been passed. The Collector in the garb of the subject inquiry has far exceeded his jurisdiction and that is clear from the operative order and particularly clauses II and III thereof. If the persons who were in occupation or claiming rights of about 9000 acres lands approximately are adversely affected because of the 13 wp7500-08.group.sxw interference with the permissions granted for non-agriculture use in their favour, then, the least that was expected is to give opportunity of hearing and not conclude the issue with regard to title of the lands. Now such course is not open for the parties like the Petitioners. That order is ex-parte and it affects the parties like the Petitioners. 11 This argument has been adopted by other counsel as well. Each one of them has invited my attention to the concept of superior holder under the Maharashtra Land Revenue Code, 1966. It is contended by them that a privity of contract had to be established and before depriving anybody of his rights even if they are to a limited extent, the hearing was necessary. For all these reasons, the impugned orders are unsustainable and deserve to be quashed and set aside. 12 On the other hand, Mr.Dhakephalkar, learned Senior Counsel appearing for the Estate Investment Company, submitted that the very basis that the order violates the principles of natural justice, is misconceived and untenable in law. The Petitioners were 14 wp7500-08.group.sxw have been required to be heard only if there was a lis between the Company and the Petitioners. There was no such lis in the instant case. This was a matter strictly between the Company and the Government. The Company’s name was directed to be removed from certain column and directed to be inserted as “Kabjedar”. The Company has been claiming through Ramchandra Laxmanji and his successors-in-tile. The Company has been claiming under the document which is executed in its favour way back in the year 1945. Once it steps into shoes of Ramchandra Laxmanji and is recognized as Government lessee, then, all the more there cannot be any lis as between the Petitioners and the Company. The Government has recognized the rights and it is evident from the fact that a suit was filed by the Company against the State so as to account for rent that is recovered by the State in respect of the subject land. In that suit, a decree was passed in favour of the Company which decree has been maintained throughout. In such circumstances, when the order of Division Bench of this Court in the aforementioned Writ Petition permits or grants liberty to the Company to avail of alternate remedy available under the Land Revenue Code or filing of a civil suit, then, there was nothing erroneous in approaching the Collector in the 15 wp7500-08.group.sxw ongoing proceedings and requesting him to render a decision as to whether, the records of right should be corrected appropriately. This was an ongoing and continuing lis as between the authorities and the Company and all that has been done is in pursuance of the order of a Division Bench of this Court, the inquiry was held to decide whether, by virtue of the Salesette Act, the land revenue exemption is abolished and this would mean that the liability in terms of Section 3 thereof would fall on the party like the Company. It is only for the limited purpose as to whether, the land revenue liability would arise on the basis that the Company is estate holder or is in possession of the land and whether, the lands are in possession of other persons who hold that the inquiry was held. Other than this, nothing more should be read in this inquiry. There is no adjudication of anybody’s title to say the least. In these circumstances, once the Petitioners were not going to be adversely affected, there was no question of a hearing being given to them. On the other hand, by approaching this Court what the Petitioners are seeking is an inquiry into disputed questions of facts and particularly with regard to the status of the Company. Going by the reasoning of the Division Bench of this Court, this course is 16 wp7500-08.group.sxw impermissible in law. For these reasons, the Writ Petition should be dismissed. 13 In the light of the rival contentions of the parties, the only question that falls for determination is, whether, these Writ Petitions should be entertained or that the parties like the Petitioners should be relegated to the remedy available in law for adjudicating the issue of their right, title and interest in the property and based thereupon to seek ancillary and incidental directions to the revenue authorities so as to correct the records of right. It is contended that pursuant to the order passed by this Court, the only remedy available to the company was to approach the competent Civil Court and not the revenue authorities. My attention is invited to the order passed by this Court in the Writ Petition No.5118 of 1995 in this behalf. 14 Upon a perusal of the order passed by this Court, it is apparent that the company argued before this Court that it is a grantee of the land which is described at Exhibit B-1 to the writ petition . It was their case that non agricultural certificates are 17 wp7500-08.group.sxw issued from time to time in respect of said land or parts thereof by the Tahsildar/ Sub Divisional Officer as the case may be and without any knowledge of or notice to the petitioners, i.e the company. Therefore, their status as grantee and their entitlement to receive rent is adversely affected. The company relied upon the decisions of this Court and urged that their status has been confirmed by virtue of these decisions. However, the private respondents as also the State opposed the petition and contended that the lands are not ‘Eksali’ lands and the company is not to notice while entertaining the application for non agricultural permission and unless the name of the company is entered as superior land holder. The parties like the petitioner before me who were respondents to the writ petition, claimed that they were in possession of a part of the land and, therefore, the company has no right to object to the grant of non agricultural permission and supported the status of the land. The private respondents relied upon a decision of this Court delivered way back in a case of the company itself, viz., The Estate Investment Company Ltd, Bombay Vs. Shapurji Manekeji Kotwal and Sons (Appeal No.230 of 1947 with Civil Application No.78 of 1950) decided on 12th July 1950. After considering these 18 wp7500-08.group.sxw contentions, this Court was of the opinion that it would not be possible to exercise jurisdiction under Article 226 and particularly decide the status of the company as well as the nature of the land. The Court expressed opinion that this can be more efficaciously done by the concerned revenue authorities or in the alternative, by filing a civil suit. The Court, therefore, declined to examine the matter in the limited jurisdiction under Article 226 of the Constitution of India. To my mind, this order cannot be construed as a direction to approach the competent Civil Court. All that this Court expressed was, a view that it was not possible in writ jurisdiction to go into disputed questions which have been raised by the parties. Therefore, the argument of Mr.Dewal and Mr.Dani that the company was obliged to file a civil suit and not approach the Revenue Authorities, is not well founded. The company approached the authorities under the Land Revenue Code as it was urged that the land revenue exemption stands abolished by the Salesette Estates (Land Revenue Exemption Abolition) Act, 1951, herein before referred to as Salesette Act. That Act is an Act to abolish exemption from land revenue enjoyed by holders of certain estates in the Island of Salsette in the Bombay Suburban and Thane Districts in 19 wp7500-08.group.sxw the State of Bombay. In such circumstances and since the land revenue was sought to be recovered by virtue of taking away the exemption and further there was an issue as to whether all lands in the estate are and shall be liable to payment of land revenue to the State Government that the matter was examined. If the order of this Court is perused, it notes the rival contentions and one of the argument was that the Estate Management Company is estate holder and the lands cannot be subjected to payment of any land revenue. The lands were held under the “Kowl” which is defined to be a lease farm or an agreement under which an estate is held from the State Government. The issue was also whether the company can claim to be an estate holder meaning thereby an holder of estate. The word “Estate” is also defined in this Act. Therefore, it is not as if this Court did not give any opportunity to the company to approach the authorities under the Land Revenue Code. In such circumstances, the arguments that the order and direction of this Court has not been abided by the company, cannot be accepted. 15 The next argument is that assuming that the issues raised were capable of being examined at an enquiry under the Salesette 20 wp7500-08.group.sxw Act and more particularly section 3 thereof, yet, the order passed by the Collector far exceeds his jurisdiction and powers thereunder. In other words, he has transgressed his limits of his limited jurisdiction. For that purpose a perusal of the order would reveal that the Collector has merely taken a note of what the earlier proceedings under the Salsette Act were and their status. His order opens with a reference to the proceedings under section 3 of the Salsette Act initiated by the then Collector, Thane pursuant to the order dated 28th January 1989 passed by the Resident Deputy Collector and ex- officio Additional Collector, Thane. It also makes a reference to the order of the Revenue Minister of the State Government dated 28th April 2008 and a direction therein to complete the enquiry which is pending before the Collector within a period of three months. He has outlined the purpose of the proceedings and that is to find out the extent of land, which on the appointed date of the said Act covered under section 3(1)(b)(i) for which the estate holder became primarily liable to the State Government for payment of land revenue pursuant to the abolition of the exemption. He has noted that since 2003, the proceedings had commenced by issuing notice to the Estate Investment Company. However, the proceedings were 21 wp7500-08.group.sxw adjourned from time to time. 16 In my view, therefore, the Collector was well aware of the nature of the proceedings and the issue that was to be examined by him. He was also aware of the ambit and scope of the provisions enabling him to hold enquiry so as to comply with directions of the Revenue Minister. It is in that context that he referred to all the facts. It is clear that he had before it, a case pertaining to grant of various lands comprised in the property popularly known as Bhayendar Estate which was then comprised of the villages, viz., Bhayandar Ghodbunder and Mira in Thane Tahsil. After that village Bhayandar was split into four villages, viz., Bhayandar, Navghar, Ghoddev and Khari. Similarly, village Mira is further split in the course of time into three villages, viz., Mire, Penkarpada and Mahajanwadi. He has then referred to Kowl Patra dated 7th November 1870 and thereafter the further facts emerging from the record are referred to by him. He then refers to the contentions and arguments of the company and after noting each of them in