1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1192 OF 2008 Manohar Jialdas Chhablan .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.J.S.Chandanani for petitioner Mr.A.I.Patel, A.G.P. for respondent Nos.1 to 4 Mr.Nilesh R. Gade i/b. Mr.P.R.Arjunwadkar for respondent No.5 Mr.G.S.Godbole for respondent No.6 CORAM : S.C.DHARMADHIKARI, J. DATE : 31th March 2008 P.C. . By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order dated 5th January 2008 which has been passed by the Principal Secretary, Relief and Rehabilitation Department, Mantralaya, Mumbai. (for short Secretary). 2 2. The order under challenge is passed by the said Authority on a Departmental Reference dated 10th January 1986 under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Departmental reference has been made on 31st December 1985. The departmental reference was at the instance of one Gul H. Bhatia and one A. Balani the original complainants. They have been impleaded as respondent Nos.5 and 6 to this Writ Petition. They were also parties to the reference/proceedings, before the Secretary. 3. Both Mr.Anil Balani and Dr.Gul Bhatia sought intervention of the authorities on 9th August 2006. They complained that the conveyance deed in favour of petitioner is dated 4th March 1985. It was executed by P.S.Batra. Attention of the Secretary was invited to a press note which was issued in all leading newspapers that 3 the then Assistant Administrator Mr.Batra, has during his tenure from 11th January 1984 to 11th June 1985 and, thereafter, misused his authority and issued bogus conveyance deeds in respect of Government lands at Ulhasnagar. The complaint was that the subject conveyance is also signed by Mr.Batra and during that specified time. The same is bogus. Attention of the Authorities was also invited to a letter dated 17th December 1985 which was issued to Dr.Gul Bhatia that no conveyance deed for the subject plot has been issued to anybody and the land is lying with Government. The attention was also invited to the letter dated 21st July 2005 of the Sub-Divisional Officer, informing Dr.Gul Bhatia that the conveyance deed dated 4th March 1985 issued in the name of petitioner, is not issued from his office. 4. It is in such circumstances that a request was made to probe the entire transaction 4 and that is how the departmental reference was made. Dr.Bhatia also urged that the petitioner was never in occupation of the plot before 11th May 1965 (cut off date). It was contended that the petitioner was a minor at that time and, therefore, could not have been held to be eligible. The grievance was that the petitioner managed with the then officer and got his father’s name included in the record against the plot and obtained conveyance in his own name. The conveyance deed obtained by the petitioner was and is bogus. It is obtained by mis-representation and by practising a fraud on Government as well as two occupants viz., Balan, occupier of Plot No.693 and Dr.Bhatia occupier of plot No.692. 5. It is on the basis of this material that the departmental reference was made by the Administrator, Ulhasnagar Township on 31st December 1985. The departmental reference is 5 forwarded and the same is under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The said departmental reference was before the Secretary. The complainants Dr.Bhatia and Mr.Balani who was heir of the deceased A. Balani were made parties to the reference along with the present petitioner. 6. The impugned order proceeds on the basis that the original papers could not be traced. However, on the basis of copies of the available documents, the case was heard in the presence of parties. Both sides raised their respective pleas. 7. As far as petitioner is concerned, it was his case that the show cause notice dated 10th January 1986 was challenged by him by filing Petition No.170 of 1986. This Court by an order dated 27th February 1986 rejected the petition after noting that the Secretary would give an 6 opportunity of hearing to the petitioner before the reference is decided. 8. Petitioner contended that the Administrator, Ulhasnagar Township has no locus to forward the departmental reference under the Act as the occupation of the petitioner is prior to 1965. Further, it was urged by him that it is not clear as to whether the Administrator made a reference under the Displaced Persons (Compensation and Rehabilitation) Act or under the Maharashtra Land Revenue Code, 1966. It is his case that he is displaced person under section 2(b) and was in possession of the plot. He received notice dated 8th February 1985 for regularisation of his possession. He paid an amount which is evidenced by receipt dated 4th March 1985. In these circumstances, a conveyance deed was executed on 4th March 1985 in his favour. He is paying Municipal taxes. It is also his case that during the pendency of the 7 reference, conveyance deed was issued illegally to the heirs of respondent No.6, Anil Balani in respect of the same portion of plot No.693. Further, he filed petition being W.P.No.6103 of 2004 before this Court, which is pending. He contended that the conveyance deed issued in his favour is genuine and as per the Rules and Regulations. 9. The Secretary by the impugned order has referred to an order dated 14th December 2006 in P.I.L. 52 of 2006 (International Sindhi Panchayat Vs. State of Maharashtra). He has also referred to the press note and other material. He has also referred to the proceedings before the Chief Settlement Commissioner. He has concluded that had the petitioner been in occupation of the plot from the period prior to 11th May 1965 and upto 4th March 1985, then, occupation of Arjun Balani from the period 1972 could not have been possible. 8 After referring to several documents, he has concluded that the conveyance deed in favour of the present petitioner is dubious. In para 18 of the order, the Secretary has concluded that the petitioner has been unable to establish his possession prior to 11th May 1965. On this basis, he further concluded that petitioner was not entitled for a conveyance deed under the provisions of the Displaced Persons Act. Concluding thus and also directing that Plot No.692 and portion of plot No.693 which is not allotted to heir of the deceased Arjun Balani, may be disposed of by following procedure under the Maharashtra Land Revenue Code, the Secretary passed Final Orders on the Departmental Reference. 10. It is this order cancelling the conveyance deed and issuing above directions which is subject matter of challenge in this petition. 9 11. This petition was placed before me on 29th February 2008 and time was granted to State to file affidavit so also to other Advocates to take instructions. It was directed in the presence of all Counsel that the matter would be placed for admission but with clear understanding that the same will be disposed of finally at admission stage. All Counsel have consented to this course. Thereafter, on 14th March 2008, time was sought by learned A.G.P. to produce the record pertaining to departmental reference and the documents referred therein. It was directed that once the record is produced, all Advocates appearing in the matter would have opportunity to inspect the same and make their submissions. It was specifically clarified that the issue of jurisdiction is kept open and all orders are without prejudice to the rights and contentions of the parties in that behalf. 10 12. After the record was produced and inspection was permitted, further submissions are canvassed. I have heard Mr.Dhakephalkar, learned Senior Counsel for petitioner, Mr.Patel, A.G.P. for State, and Mr.Arjunwadkar for respondent No.5 and Mr.Godbole for respondent No.6. 13. I have also perused the petition and the affidavits filed. An affidavit has been filed by the Section Officer, Government of Maharashtra on 25th March 2008. In para 2 of the affidavit this is what is stated:- "2. I say that the Government by Circular/Memorandum No.HS 1072/40677/IC dated 27th April 1973 has ordered Regularisation of Encroachment in the Displaced person Colonies which were from the period prior to 11th May 1965, if they were not affected by particular Reservation of the development plan. As per this provisions of the Circular and Government orders the Screening Committee appointed for the particular colony was required to consider the cases of regularisation and recommend it for regularisation. On positive recommendation of the Screening Committee the Managing Officer was required to 11 issue Conveyance Deed to the Encroacher. Hereto annexed and marked as Exh.A and B are the copies of the said circular No.HS 1072/40677/IC dated 27th April 1973 and the Government Resolution No.HS 1072/IC dated 11th May 1973. The Government has appointed Screening Committee for Ulhasnagar township and some other colonies. It is doubtful that this so called Conveyance Deed had actually ever been issued by the Office of the Managing Officer properly. It is seen that the Government of Maharashtra had issued a Press Note dated 13th August 1986 stating that "Shri P.S.Batra, the Managing Officer, during his tenure from 11th January 1984 to 11th June 1985 and thereafter also, misused his authority and had issued bogus conveyance deeds in respect of Government lands in Ulhasnagar Colony and therefore, all conveyance deeds in respect of the said period, needs to be cancelled and the land involved resumed by the Government." This so called conveyance deed dated 4th March 1985 has been issued during the period of Shri Batra who was the then Managing Officer. The Conveyance Deed dated 4th March 1985 has been issued illegally and irregularly, therefore, it has been cancelled. It is seen that the Administrator, Ulhasnagar Township by his letter No.Adm/GB/D.R./C.2/VS 5 dated 31st December 1985 had informed the Secretary that the relevant file of this case was not traceable in the office. The Administrator, Ulhasnagar Township was of the opinion that the alleged conveyance deed granted by the Assistant Administrator and Managing Officer under the Displaced Persons (C & R) Act was 12 beyond the power of the Managing Officer and he has exceeded his powers therefore, it requires to be cancelled and the land should be disposed under the provisions of the Maharashtra Land Revenue Code, 1966. It shows even in December 1985, there was no document in the office of the Administrator regarding the conveyance deed which is said to have been issued on 4th March 1985. The respondent No.1 has relied on one receipt dated 4th March 1985 to show that he had paid certain amount to the Government against the price of the said plot. On perusal of the copy of the said receipt it was found that it is paid as per the letter dated 8th February 1985 which is a letter issued during the period of Shri P.S.Batra. Further, it is seen that the payment has been made by Shri Jialdas Chabaldas and not by respondent No.1." 14. In para 3, a specific statement is made that the managing officer cum Sub-Divisional Officer, Ulhasnagar had stated that there is no record in his office which would indicate that any enquiry has been held and competent authority has passed order granting conveyance deed in favour of the petitioner. Further, it is urged that the petitioner has not submitted any documentary proof to show that he was in 13 possession of the plot for the period prior to 11th May 1965. 15. In para 4 of the affidavit specific statement is made that the petitioner has disclosed his age as 58 years in February 2008. This means that the petitioner was 15 years on 11th May 1965 which is the cut off date for regularisation of encroachment in the displaced persons colonies. The case is that the petitioner was minor on that date. However, his father was in occupation of this land for the period prior to 11th May 1965 and the father continued to be in occupation. Thereafter, it is the father who could have applied for regularisation. Father’s name is Jialdas Chablani, when it is claimed that the receipt has been issued in the name of Jialdas Chablani and the conveyance deed is claimed to have been issued in the name of petitioner, this raises sufficient doubts with regard to conveyance deed. 14 Various Government circulars have been referred to and it is contended that these circulars postulate submission of proof of occupation of the land prior to 11th May 1965, Whereas the receipts forwarded are from 1998 to 2003, which do not prove occupation prior to 11th May 1965. Petitioner’s stand in the writ petition filed has also been referred. The reference to the role of Mr.Batra is also made and in these circumstances, the order of Secretary is supported and justified. 16. When this affidavit was placed on record and copies were given to other side and additional affidavit of respondent No.6 was also placed on record of this petition, Mr.Dhakephalkar and Mr.Chandnani appearing for petitioner urged before me that the compilation of documents tendered by them support petitioner’s contention. Affidavit of Gul Bhatia including additional affidavit is nothing but an 15 attempt to some how or the other support the conclusions of the Principal Secretary which are untenable in law. My attention is invited to several orders passed by this Court and it was urged that the view taken consistently by this Court is that the Commissioner has no power to set aside a sale deed. In such circumstances, maintainability of the departmental reference itself was challenged so also it was urged that the Principal Secretary had no jurisdiction to cancel the sale deed. 17. After hearing both sides and perusing some of the documents from the record, I impressed upon both sides, the fact that at the root of the matter and the controversy is the genuineness of the documents. Further, fraud on the Government is alleged and it is further contended that the sale deed/conveyance deed dated 4th March 1985 is bogus and obtained by misrepresentation. This coupled with the fact of 16 petitioner’s occupation prior to the cut of date being questioned. All such matters including issue of jurisdiction and maintainability of the reference are such which cannot be gone into for the first time in writ jurisdiction, more so, when the petitioner has challenged the impugned order on other grounds. Apart from jurisdiction of the authority and maintainability of reference, assuming that it had jurisdiction and the reference was maintainable, still, the conclusions drawn are without adverting to the necessary and relevant materials is also the submission. Petitioner’s grievance is that each of the documents in his favour are genuine and that he has proof with regard to his occupation prior to cut off date and no fraud has been perpetrated in the matter. Further, the argument that the authority was not empowered and competent to execute the conveyance deed is distinct from the plea that conveyance deed itself is not genuine but bogus. 17 18. After perusal of the order with the assistance of the learned Counsel for parties, I noticed that all aspects of the matter have not been gone into in depth and no finding has been rendered on the issue of jurisdiction and maintainability as well. In such circumstances, I called upon the parties to indicate as to whether they would be agreeable to the impugned order being quashed and set aside and the reference being reheard by the Appropriate Authority. 19. After taking instructions from the respective parties who are present in court, the learned Counsel stated that they are agreeable to this Course of action. Each one of them has agreed that the impugned order be quashed and set aside and the departmental reference be restored to file of Principal Secretary in the Department of Relief and Rehabilitation for decision afresh 18 in accordance with law. 20. Mr.Chandnani’s apprehension that this Court having reproduced the factual aspects and rival contentions, the same would be taken as an expression on maintainability of the reference, jurisdiction of authority and merits as well, is without any basis. In any event, that can be taken care of by clarifying that all contentions of the petitioner, Dr.Bhatia, Anil Balani are kept open. The departmental reference will be heard afresh without being influenced by any of the observations rendered earlier. The Principal Secretary to frame point of jurisdiction, maintainability and the occupation of the petitioner prior to cut off date and render findings on each of them independently and without being influenced by the observations in the earlier orders. However, it is clarified that the departmental reference will proceed on the basis of the available record and none of the 19 parties would be permitted to urge that the original record or the copies being not traceable, the reference is not maintainable. The reference must proceed on the basis of the available record as serious issues arise for consideration. Once the parties have been permitted to inspect the record before this Court, then I see no prejudice to either of them. 21. With the above observations and directions the impugned order is quashed and set aside. Departmental reference is restored for fresh adjudication. All contentions of both sides are kept open. Departmental reference will now be reheard and disposed of as expeditiously as possible and within a period of three months from the date of appearance of parties. 22. Needless to state that I have indicated three points which are to be framed by the Principal Secretary but that does not preclude 20 him from framing additional points, if they arise for his determination and render findings thereon. The record be sent down immediately. Parties to appear before the Principal Secretary on 16th April 2008. All concerned to act on an authenticated copy of this order. 23. Mr.Patel, learned A.G.P. urges that since the date for appearance of parties is fixed as 16th April 2008 but to give no room for any complaint that the record has not been allowed to be inspected, he states that the record which was summoned by this Court would be retained in his custody till 8th April 2008 and all parties to this petition can with prior appointment seek inspection and take photocopies of the same. In the light of the statement of Mr.Patel, no further directions with regard to inspection of the documents need be granted. To enable Mr.Patel to comply with this statement, R & P is handed over to him in court today. 21 24. Petition disposed of in the above terms. No costs. (S.C.Dharmadhikari, J)