Levy Non-agricultural tax and penalty for using the land that does not belong to the claimants: Bombay High Court

 on 18 05 2021 on 22 03 3.aost.4532.21.docS.S.Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION APPEAL FROM ORDERNO.4532 OF 2021WITHINTERIM APPLICATIONNO.4533 OF 2021Ramesh R. Pandey and Ors...Appellants VersusMunicipal Corporation of Greater Mumbai..Respondent...................Mr. Pradeep Thorat i by Mr. Janardan S. Yadav Advocate for theAppellants.Mr. Dharmesh Vyas a w. Ms. Madhuri More for MCGM.................... CORAM : MILIND N. JADHAV J.RESERVED ON : MAY 07 2021PRONOUNCED ON : MAY 18 2021 JUDGEMENT :.Heard. 2. By the present Appeal against Order the Appellants(original Plaintiff Nos. 1 2 and 3) have challenged the order dated10.02.2021 passed by the City Civil Court at Dindoshi dismissing theNotice of Motion No. 4321 in L.C.Suit No. 1421 filed bythe Appellants. The sole respondent is the Municipal Corporation ofGreater Mumbai. For the sake of convenience the parties shall bereferred to as Plaintiffs and Defendant. Plaintiffs have also filedInterim Application bearing No. 45321 seeking injunction on 18 05 2021 on 22 03 3.aost.4532.21.docagainst the Defendant Corporation from carrying out furtherconstruction of the toilet block in the open portion in front of the suitpremises. 3.Before we advert to the submissions made by therespective parties it will be apposite to briefly state the relevant facts.3.1.Plaintiffs are owners of structures bearing Census No.RXC 85 1 1 RXC 84 1 1 and RXC 18 1 1A standing in survey No.221 CTS No. 532Ganpat Patil Nagar Kandar Pada near I.C.Colony DahisarMumbai 400068. There is an open spaceadmeasuring 15000 sq.ft. in front of these structures abutting theDahisar Link road which is vacant. In the plaint filed by the Plaintiffsthis open space is referred to as the suit premises and it is claimed thatthe suit premises belong to the Plaintiffs. The censused structures ofthe Plaintiffs are referred to as suit structures. The suit is filed forinjunction u s 38 of the Specific Relief Act 1963. It is contended inthe plaint that the Plaintiffs are in use occupation and possession oftheir respective structures and the open space in front of the suitstructures. Though it is stated in the plaint that the Corporation hadinitiated action against the Plaintiff s structures u s. 351 of theMumbai Municipal Corporation Act 1888the Plaintiffs succeeded in setting on 18 05 2021 on 22 03 3.aost.4532.21.docaside the notices issued u s 351. However all facts stated in respectof the structures or any litigation pertaining to action u s 351 is notrelevant for the purpose of the present case. 3.2.Plaintiffs have contended that their suit structures areused as godowns since the last several years. It is stated that the suitopen space in front of the suit structures of Plaintiff Nos. 1 and 2 arelevied to N.A. tax alongwith the suit structures and that Plaintiff Nos. 1and 2 are paying N.A. tax to the concerned authority. Plaintiffs havereferred to and relied upon the N.A. order dated 26.01.2005 which Ishall deal with later. 3.3. Plaintiffs have contended that the open space is inexclusive possession of the Plaintiffs since the last several years and isused by the Plaintiffs for parking of their vehicles for loading andunloading goods from the suit structures. It is stated that someportion of the open space was acquired for the widening of the Linkroad. If that be the case then the Plaintiffs should have placed onrecord the details of acquisition so as to enable the Plaintiffs to claimright title and entitlement to the suit open space. This has admittedlynot been done. 3.4. The Defendant Corporation wanted to construct a public on 18 05 2021 on 22 03 3.aost.4532.21.doctoilet on some portion of the open space. The construction of thispublic toilet was initiated by a Public Notice dated 28.01.2020 andobjections were received from aggrieved persons till 04.02.2020. Thisnotice was specifically pasted on the suit structures of the Plaintiffsand there is no denial of this fact. The Corporation has followed thedue process of law in ensuring that the public toilet is constructedunder the ‘Swacch Bharat Mission Scheme’ initiated by the UrbanDevelopment Department and as per the SBMGuidelines para4.3.2 for construction of household toilets beneficiary householdwould be targeted under this scheme irrespective of whether they livein authorized unauthorized colonies or notified non notified slums.Further the construction of this public toilet having 16 toilet seatswould benefit approximately 2250 users residing in Galli No. 14 ofGanpat Patil Nagar Dahisar West. At present there are only 15 publictoilet seats in operation and service for the use of the aforesaidpopulation. 3.5.The Corporation is carrying out the construction of thetoilet block at Galli No. 14 being the planning authority and obligatedto make arrangement for toilet for the slum dwellers as also to controlspread of contagious diseases in the said area. The Corporation hasobtained the necessary remarks from the Maharahstra Coastal ZoneManagement Authority for construction of the said public toilet on 18 05 2021 on 22 03 3.aost.4532.21.docremarks regarding whether the proposed location falls under CRZ I orCRZ II have been given by the Executive EngineerR North remarks requirement of the public toilet as given by the AssistanceEngineerdepartment of the Corporation letters addressed bythe State Government seeking clarification from the CentralGovernment letters received from the Director SBM Ministry ofUrban Development interpreted to mean that under the SBM(v) (viii) andMumbai states that the name of PlaintiffNo.1 i.e. Ramesh R. Pandey and Plaintiff No.2 Diwakar R. Thakurshow that they are in unauthorized use and occupation of thecommercial structures admeasuring 212 sq. mtr. and 272 sq.mtr. andopen land admeasuring 244 sq.mtr. and 314 sq.mtr. for which N.A. on 18 05 2021 on 22 03 3.aost.4532.21.docassessment has been levied and on the basis of which they claim to bethe owner of the suit open land. He submitted that once the Plaintiffsshow that they are in settled possession of the suit property and if theMunicipal Corporation admits so in its affidavit in reply injunctionshould have been granted by the trial court. He has drawn myattention to paragraph No. 9 of the affidavit in reply filed by theCorporation to contend that there is categorical statement made by theCorporation stating that the Plaintiffs are paying N.A. assessment forthe suit open space and are in possession of the suit open space andare using the same for commercial purpose. On the basis of thisstatement Mr. Thorat has vehemently contended that the Corporationhas admitted possession of the Plaintiffs and thus cannot dispossessthe Plaintiffs from the suit open space.6.The next ground agitated by Mr. Thorat is that theCorporation has not followed the due process of law and has not takenpossession of the suit open space from the Plaintiffs as is requiredunder the law. He stated that the public notice dated 20.01.2020seeks construction of the toilet block at Galli No.14 whereas the sameis now been constructed in the open space adjoining the entrance gateto Galli No.14. Thus the original site has been further shifted towardsthe South and is being constructed at a different location. Hesubmitted that the exact place where the toilet block is required to be on 18 05 2021 on 22 03 3.aost.4532.21.docconstructed is completely uncertain and is not borne out by the record.He has referred to and relied upon the photographs which show theentrance to Galli No.14 and the exact location towards the southwhere the toilet block construction is undertaken by the Corporationto buttress his submission. 7.PER CONTRA Ms. Madhuri More learned counselappearing for the Corporation has drawn my attention to the affidavit in reply dated 27.01.2021 filed by Mr. Amit Y. Koyande Sub Engineer Maintenance Department R N Ward of the Defendant Corporationbefore the trial court and has refuted the case of the Plaintiffs. Shesubmitted that the N.A. order dated 26.01.2005 relied upon by thePlaintiffs does not entitle the Plaintiffs to claim ownership of the suitstructures as well as the suit open space as described by the Plaintiffsin the plaint. Plaintiff Nos. 1 and 2 along with two other parties havebeen described as encroachers and have been directed to pay N.A.taxes till the structures shall be removed by the Municipality or theState Government and most importantly paragraph Nos. 2 and 3 ofthe said order the N.A. order confirm that the said order does notconfirm any right title or interest in the land to the encroacher i.e.Plaintiff Nos. 1 and 2. It is further clarified in the order that paymentof N.A. assessment does not mean any regularization u s 47(b) of theMaharashra Land Revenue Code 1966and the open space. A bare reading of theN.A. order in fact goes against the Plaintiffs case of entitlement. TheN.A. order though reads that the suit open space is in possession of thePlaintiffs and being used by the Plaintiffs it is on their request thatN.A. assessment has been levied as they are using the said structuresand open space. It cannot be construed that the Plaintiffs are theowners of the suit structures as well as the open space by any stretchof imagination or by application of any principle of law. The N.A.order states that "the construction is without prior permission ofCollector u s 44 of the Maharashtra Land Revenue Code 1966. Theland is therefore liable to pay penalty u s 45 of M.L.R.C. 1966. Itfurther states that encroacher should pay N.A. Assessment at the abovementioned rate till the N.A. rates are revised or the structure shall beremoved by Municipality Demolition squad of State Govt. or any otherGovt. body whichever is earlier. It is further stated that this order doesnot confirm any right title or interest in the land to the encroacher. Itis clarified that payment of N.A. Assessment and fine does not mean itis regularized u s 47(b) of M.L.R.C. 1966."1 on 18 05 2021 on 22 03 3.aost.4532.21.doc11. For the sake of convenience the relevant portion of theN.A. order is extracted as below:"OFFICE OF THE ADDITIONAL DISTRICT DY. COLLECTOR MUMBAI SUBURBAN DISTRICT ADMINISTRATIVE BUILDING 9TH FLOOR GOVT. COLONY BANDRAMUMBAI 400 051 No. ADC LND E 2426ADate : 27 01 2005Read : 1. Application from Shri. Louis Itur Vaity & Others 3 dated 26 5 20042.This office Surveyor s report dated 29 05 20043.The Revenue and Forest Department Govt. Circular No. NAA 1090 PK 16 L 2 dated 17 7 19924.Powers u s 45 of M.L.R.C. 1966 delegated by Collr. BSD vide order No. AOM 122 dated 12 5 72ORDER..................................The Construction is without prior permission of Collector u s 44 of theMaharashtra Land Revenue Code 1966. The land is therefore liable to paypenalty u s 45 of M.L.R.C. 1966.Show cause notice in this case was issued to Occupant Applicant and thehearing was fixed on 6 10 2004 @ 3.00 p.m. The applicant was present andargued that they are ready to pay N.A. Tax but their financial position is notsound therefore requested to waive the penalty..................1.That the Encroacher should pay N.A. Assessment at the above mentionedrate till the N.A. Rates are revised or the structure shall be removed byMunicipality Demolition Squad of State Govt. or any other Govt. Bodywhichever is earlier.2.This Orders does not confirm any right title or interest in the land to theEncroacher.3.It is clarified that payment of N.A. Assessment and find does not mean it isregularized u s 47(b) of M.L.R.C. 19664.Occupant should pay N.A. Assessment to TahsildarBorivali I II.Additional District Deputy CollectorMumbai Suburban District"12.From the above it is clearly discernible that the N.A.order does not give any entitlement of right or title to the plaintiffs inthe suit open space. Needless to state that the open space belongs to1 on 18 05 2021 on 22 03 3.aost.4532.21.docone Dyanesh Kamlakar Samant as per the revenue record. Therefore itis beyond any reasonable doubt that the Plaintiffs are rankedencroachers in respect of the suit structures as well as the suit openspace. The N.A. assessment order itself states that an application wasmade by Plaintiff Nos. 1 and 2 along with two others seeking to levyassessment in respect of the structures and the open space used byboth for commercial purpose. The provision of section 45 of the MLRCAct clearly envisage that it pertains to penalty for so using the landwithout permission of the Collector. The contents of the N.A. orderlevied penalty to the extent of ten times of the fine of the annualcommercial assessment for the use of the structures and the openspace. To construe that the N.A. order puts the Plaintiffs in settledpossession and confers title on the Plaintiffs in respect of the openspace is a fallacy and an erroneous proposition of law adopted by thePlaintiffs in their submissions. Such a position cannot becountenanced by the Court which requires to look at documentaryevidence of title or existence of the names of the Plaintiffs in theprimary revenue record pertaining to the suit land. In absence of anydocumentary evidence of title the Plaintiffs case of settled positionand having right title and interest conferred on the Plaintiffs by theN.A. order dated 26.01.2005 stands rejected. 1 on 18 05 2021 on 22 03 3.aost.4532.21.doc13.The Plaintiffs reliance on the averments made by theCorporation in paragraph No. 9 of having accepted the possession ofthe Plaintiffs in respect of the open land cannot be construed literallyas it appears. The possession of the Plaintiffs is derivative from theN.A. order dated 26.01.2005 which is alluded to herein above. Thus no right title or interest is created in the Plaintiffs in respect of suitopen land.14.The submissions relating to following the due process oflaw in construction of the public toilet block as advanced by thePlaintiffs also stand to be rejected in limine. The submissions that theoriginal toilet block was to be constructed at Galli No. 14 and the sameis now being constructed at the mouth of Galli No. 14 and not near theentrance gate of Galli No. 14 cannot be countenanced in as much asthe Municipal Corporation being the planning authority a feasible andsuitable place for the toilet block whether it is at Galli No.14 or nearthe entrance of Galli No.14 will be taken into account keeping in mindthe utility and use of the said public toilet block for the benefit of thebeneficiaries users and more specifically the slum dwellers. Theconstruction of the public toilet block will be beneficial to the slumdwellers of Ganpat Patil Nagar residing at Galli No.14. At presentthere are only 15 public toilet seats for approximate 2250 users atGalli No. 14 and the construction of the present public toilet block1 on 18 05 2021 on 22 03 3.aost.4532.21.dochaving 60 toilet seats would be certainly beneficial. Thus thesubmission of the Plaintiffs relating to change in the precise location ofthe construction of the public toilet block stands rejected.15.The Plaintiffs have referred to and relied upon thephotographs pertaining to the construction of the public toilet block. Amere glance at the photographs clearly show that as alleged by thePlaintiffs the toilet block is not covering the entire open space which isbetween the Plaintiff s structure and the Link road. Despite the toiletblock being constructed there is adequate open space which is leftopen. The Plaintiffs have relied upon the decision in the case of RameGowdaby LRS. vs. M. Varadappa Naidu(Dead) by LRS. andAnr.1 to agitate that under the provisions of the Specific Relief Act ifan occupant is in settled possession he cannot be dispossessedwithout recourse to law. In the said case the Plaintiffs and theDefendant both claimed to be the owners of two adjoining pieces ofland and the real dispute between them was about the demarcation ofthe common boundary of the two pieces of land. In that context theland in possession of the Plaintiffs was referred to as the suit land andthe Plaintiffs raised construction over the said suit land which wasobjected by the Defendant. In the trial court the Plaintiffs filed a suitfor title and possession whereas in the present case the Plaintiffs have12004(1)SCC 7691 on 18 05 2021 on 22 03 3.aost.4532.21.docconveniently not filed any suit for title primarily because the plaintiffsare aware that their suit for title cannot be based upon the N.A. order.There is no other documentary piece or evidence with the Plaintiffs toprove their title. In the above context the learned counsel has placedreliance on para Nos.8 and 9 of the above judgement which areextracted as under :"8.It is thus clear that so far as the Indian law is concerned theperson in peaceful possession is entitled to retain his possession and in orderto protect such possession he may even use reasonable force to keep out atrespasser. A rightful owner who has been wrongfully dispossessed of landmay retake possession if he can do so peacefully and without the use ofunreasonable force. If the trespasser is in settled possession of the propertybelonging to the rightful owner the rightful owner shall have to takerecourse to law he cannot take the law in his own hands and evict thetrespasser or interfere with his possession. The law will come to the aid of aperson in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands and also by restoring him inpossession even from the rightful ownerif the latter has dispossessed the prior possessor by use of force.In the absence of proof of better title possession or prior peaceful settledpossession is itself evidence of title. Law presumes the possession to go withthe title unless rebutted. The owner of any property may prevent even byusing reasonable force a trespasser from an attempted trespass when it is inthe process of being committed or is of a flimsy character or recurring intermittent stray or casual in nature or has just been committed while therightful owner did not have enough time to have recourse to law. In the lastof he cases the possession of the trespasser just entered into would not becalled as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a personwithout title which would entitle him to protect his possession even asagainst the true owner. The concept of settled possession and the right of thepossessor to protect his possession against the owner has come to be settledby a catena of decisions. Illustratively we may refer to Munshi Ram and Ors.Vs. Delhi Administration 2 SCR 455 Puran Singh and Ors. Vs. TheState of Punjab 4 SCC 518 and Ram Rattan and Ors. Vs. State ofUttar Pradesh 1 SCC 188. The authorities need not be multiplied. InMunshi Ram & Ors. s caseit was held that no one including the trueowner has a right to dispossess the trespasser by force if the trespasser is insettled possession of the land and in such a case unless he is evicted in thedue course of law he is entitled to defend his possession even against therightful owner. But merely stray or even intermittent acts of trespass do notgive such a right against the true owner. The possession which a trespasser isentitled to defend against the rightful owner must be settled possession extending over a sufficiently long period of time and acquiesced to by thetrue owner. A casual act of possession would not have the effect ofinterrupting the possession of the rightful owner. The rightful owner may re enter and re instate himself provided he does not use more force than isnecessary. Such entry will be viewed only as resistance to an intrusion upon1 on 18 05 2021 on 22 03 3.aost.4532.21.dochis possession which has never been lost. A stray act of trespass or apossession which has not matured into settled possession can be obstructedor removed by the true owner even by using necessary force. In Puran Singhand Ors. s casethe Court clarified that it is difficult to lay down anyhard and fast rule as to when the possession of a trespasser can mature intosettled possession. The settled possession must beeffective to the knowledge of the owner or without any attemptat concealment by the trespasser. The phrase settled possession does notcarry any special charm or magic in it nor is it a ritualistic formula which canbe confined in a strait jacket. An occupation of the property by a person as anagent or a servant acting at the instance of the owner will not amount toactual physical possession. The court laid down the following tests whichmay be adopted as a working rule for determining the attributes of "settledpossession"that the trespasser must be in actual physical possession of the propertyover a sufficiently long period ii) that the possession must be to the knowledgethe process of dispossession of the true owner by the trespasser must becomplete and final and must be acquiesced to by the true owner and iv) that one of the usual tests to determine the quality of settled possession in the case of culturable land would be whether or not the trespasser afterhaving taken possession had grown any crop. If the crop had been grown bythe trespasser then even the true owner has no right to destroy the cropgrown by the trespasser and take forcible possession. 16. From the reading of the aforesaid paragraphs of thejudgement and applying the facts to the present case whatdistinguishes the present case is that the N.A. order dated 27.01.2005speaks for itself the relevant contents of the N.A. order have beenreproduced in paragraph No. 10 herein above. The same are clearand unambiguous. The N.A. order does not confer any right title orinterest on the Plaintiffs. The Plaintiffs are ranked encroachers ascertified by the N.A. order. The Plaintiffs have been levied N.A. taxand penalty for using the land which does not belong to them. The1 on 18 05 2021 on 22 03 3.aost.4532.21.docPlaintiffs are aware about the same. Therefore on the basis of the N.A.order the Plaintiffs cannot construe themselves to be in settledposition. In the various judgements which are referred to in theaforesaid case decided by the Supreme Court it is seen that theoriginal suit filed by the parties was for declaration of title andinjunction to protect their possession. In the present case the Plaintiffshave not filed any suit for declaration of title and have merely filed asuit for injunction. Therefore the facts of the case referred to andrelied upon by the Plaintiffs are clearly distinguishable. The Plaintiffshave also referred to and relied upon the judgement dated 19.09.2011passed in L.C.Suit No. 13010 and 13010. L.C. Suit No.13010 was filed by Plaintiff No.2 whereas L.C. Suit No. 1304 of2020 was filed by Plaintiff No.1 to challenge the notices u s 351 issuedby the Corporation for demolition of their unauthorised structuresonly. The Plaintiffs led evidence in the trial court and producedseveral documents pertaining to the existence of the censusedstructures since 1976 and thus sought protection of the structuresfrom the action of the Corporation. The trial court in the above twosuits held that the Plaintiffs were entitled to perpetual injunction inrespect of the suit structures only. The suit property i.e. suit structuresis described in para No.3 of the above judgement. There is no whisperabout the suit open space in the above judgement so as to enable thePlaintiffs to claim any right title or entitlement in respect of the same. 2 on 18 05 2021 on 22 03 3.aost.4532.21.doc17. In view of the above discussions and findings the Appealfrom OrderNo. 45321 fails and is dismissed with no orderas to costs. 18.In view of the dismissal of the Appeal from OrderNo. 45321 does notsurvive and is disposed of as dismissed. 2 

Summary: No right, title or entitlement shall be awarded to those individuals who are merely in possession of the land and do not own the same. Those individuals shall be considered ranked encroachers and shall be levied non-agricultural tax as well as penalty for the land that does not belong to them. A single-judge bench comprising of Justice Milind N Jadhav, while adjudicating the matter in Ramesh R Pandey &amp; Ors. V. Municipal Corporation of Greater Mumbai; APPEAL FROM ORDER (ST) NO.4532 OF 2021, dealt with the issue of possession of land and its difference from ownership of the same. Plaintiffs are the owners of a certain land which had an open space. The plaintiff’s contention is that the open space is in the exclusive possession of the plaintiffs and is being used by them for parking of their vehicles, and for loading and unloading goods from the suit structures. It is stated that some portion of the open space was acquired for the widening of the Link road. If that be the case then the Plaintiffs should have placed on record the details of acquisition so as to enable the Plaintiffs to claim right, title and entitlement to the suit open space. This has admittedly not been done. The defendant’s contention is that the defendant corporation wanted to construct a public toilet on some portion of the open space. This notice was submitted to the plaintiffs. The plaintiffs have approached the Court by filing the original suit stating that the Corporation is constructing the toilet block without following due process of law. The learned counsel appearing for the plaintiffs, stated that the Corporation has not followed the due process of law and has not taken possession of the suit open space from the Plaintiffs as is required under the law. The exact place where the toilet block is to be constructed is completely uncertain and is not borne out by the record. The learned counsel appearing for the respondent stated that the said order does not confirm any right, title or interest in the land to the encroacher i.e., the plaintiffs. She submitted that the suit structures and the suit open space are not precisely and properly defined in the suit plaint and thus in the absence of specific details pertaining to the suit open space, the suit open space in relation to each Plaintiffs and the specific area of the toilet block which is being constructed, the suit filed by the Plaintiffs is not maintainable.