Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8968 OF 2018
Pimpri Chinchwad Municipal Corporation, having its office at Mumbai Pune High way
Pimpri, Pune 411018 ….Petitioner
Vs.
1. Chinchwad Devasthan Trust having registered office at Mangalmurti
Wada, Chinchwadgaon, Pune 411 033 through its power of attorney holder
Mr. Prateek Ajay Chordia, residing at
Silverwood Apartment Flat No. 1, 1st floor, Mundhwa, Pune.
2. The Collector, Collector Office, Pune 411 001.
3. Deputy Director, Land Records, New Administrative Building, First Floor, Pune 411 001.
4. State of Maharashtra through the Secretary Department of Revenue and Forests,Mantralaya, Mumbai. …. Respondents
Petitioner
Mr. S.S. Patwardhan for Respondent No.1.
Ms. Sulbha Chipade, AGP for Respondent Nos. 3, 4 and 5-
State.
Mr. Amit T. Nanware-CTS-PCMC.
JUDGMENT
1. This petition is filed by the Pimpri-Chinchwad Municipal Corporation (hereinafter referred to as ‘the Corporation’), to challenge the judgment and order passed by the learned Revenue Minister of the State Government in a revision application filed by respondent no.1-Trust (hereinafter referred to as ‘the Trust’) under Section 257 of the Maharashtra Land Revenue Code(‘MLRC’).
2. The revision application before the State Government was filed by the Trust under Section 257 of the MLRC to challenge the order dated 6th June 2017, passed by the Deputy Director of Land Records (‘DDLR’) in an appeal preferred by the Corporation under Section 247 of the MLRC. The appeal before the DDLR was preferred by the Corporation to challenge the order dated 8th December 2014 passed by the District Superintendent of Land Records (‘District Superintendent’) in an appeal preferred by the Corporation under Section 247 of the MLRC. The Corporation had preferred the appeal before the District Superintendent to challenge the order dated 4th August 2008, passed by the City Survey Officer. The date of the order is wrongly typed as 4th July 2008 by the City Survey Officer; hence, the correct date is clarified in the order of DDLR. By the said order, the City Survey Officer issued directions to enter the name of the Trust as “original holder” in respect of an area admeasuring 7 Hectares 89 Ares of the land situated adjacent to survey no.1, excluding the area covered by the lake at village Bhosari. The City Survey Officer issued directions to create a property card for the said area in the name of the Trust by numbering it as CTS No. 4579. The City Survey Officer passed the said order in accordance with the directions issued by the Superintendent of Land Records on 16th July 2008.
3. The Superintendent of Land Records had directed the City Survey Officer to allot the last city survey number for the area adjacent to survey no.1 by excluding the area covered by the lake, by holding an inquiry as contemplated under Section 122 and Section 20 (2) of the MLRC. The Corporation is aggrieved by the directions issued by the City Survey Officer to enter the name of the Trust as the original holder of CTS No. 4579 for an area admeasuring 7 Hectares 89 Ares adjacent to Survey No.1 by excluding the area covered by the lake (this area is hereinafter referred to as “the said land”).
4. For a better understanding of the controversy and for examining the rival submissions, the following dates and events would be relevant: a) 8th July 1997: The Corporation entered into an agreement with the Trust for acquiring an area of 1,05,400 square meters of the open land situated adjacent to the lake at Survey No.1 of village Bhosari, Pimpri, District Pune. The area proposed for acquisition was described in green on the attached map. It is stated in the agreement that in the Government record, the name of the Trust was entered as the owner of the said land. Hence, the Corporation entered into an agreement with the Trust for acquiring the said area. b) 20th November 1999: Pursuant to the agreement executed between the Corporation and the Trust, the Director of the Town Planning Department submitted a valuation report of the area proposed to be acquired at Rs. 1,62,53,631/-. c) 25th November 2004: The learned District Collector (“Collector”) intimated to the Corporation that, as the area proposed to be acquired is not entered in the revenue record, the relevant 7/12 extracts are not issued. Hence, the proposal for the acquisition of the area agreed to be acquired by the Corporation cannot be included in the acquisition proceedings. d) 30th April 2008: The Corporation and the Trust submitted a joint application to the Taluka Inspector of Land Records (TILR) for conducting a survey and issuing a survey number for the area proposed to be acquired, excluding the area of the lake. e) 29th May 2008: The Corporation informed the learned Collector that the measurement plan dated 29th May 2008, and the report were submitted before the Superintendent of Land Records and the District Collector. Hence, the Corporation requested that the measurement plan be considered and accordingly allot the city survey number to the area to be acquired by the Corporation, excluding the lake area, to enable the Corporation to pay the compensation amount to the Trust. f) 16th July 2008: The Superintendent of Land Records directed the City Survey Officer to allot the last city survey number to the land excluding the lake area adjacent to Survey No. 1 by making necessary inquiry under Section 122 and Section 20 (2) of MLRC. The City Survey Officer was thus directed to allot the last city survey number to the area proposed to be acquired, without prejudice to the rights of the adjoining landholders and the State Government and without committing any breach of the provisions of Sections 106, 155, 134 and 137 of MLRC. g) 4th July 2008: Pursuant to the directions issued by the Superintendent of Land Records, the City Survey Officer conducted a necessary inquiry regarding the area proposed to be acquired by the Corporation. The City Survey Officer examined the documents submitted by the trust regarding the grant in favour of the Trust. As per the inquiry, the City Survey Officer directed to allot the City Survey No. 4579 for the said land in the name of the Trust as the original holder. h) 13th June 2012: The District Collector prepared a draft award for the acquisition of the said land and submitted it to the Divisional Commissioner for approval. i) 7th July 2012: Learned Divisional Commissioner submitted a report to the learned Collector stating that the report of the learned Collector, thereby intimating the valuation made by the DDLR, the area of the lake admeasuring 102000 square meters and area admeasuring 62,357 square meters covered by the water body was not taken into consideration. The Divisional Commissioner reported that the area of 2200 square meters covered by a water body was originally 40,000 square meters, and after carrying out certain filling work, the area of the water body has been reduced. Hence, the draft award was disapproved. j) 15th July 2012: Learned Collector informed the Special Land Acquisition Officer seeking directions regarding the ownership of the water body in respect of the City Survey No. 4579 as per the approved development plan. k) 5th August 2013: Since the Corporation had not taken any steps to complete the acquisition proceedings, pursuant to the agreement, Writ Petition No. 7497 of 2013 was filed by the Trust before this Court for directing the Corporation and the State Government to complete the acquisition process and pass a necessary award under Section 11 of the Land Acquisition Act. Alternatively, the Trust prayed that the Corporation and the State Government should restore the right, title, and interest in the said land and hand it over to the Trust by declaring that the acquisition of the said land is void in law. l) 2nd May 2014: The writ petition was disposed of, granting two years time to the Corporation to take recourse to the proceedings for the acquisition of the land mentioned in the agreement dated 8th July 1997. This court directed that if the award under the relevant Act is not made within a period of 2 years; then, on expiry of a period of three years from the said period of two years, the Corporation shall restore the possession of the land to the Trust by restoring the same to its original condition as on the date of the agreement. This court further directed that in the event the Corporation is in a position to offer TDR before completion of the acquisition within the stipulated period of two years, it would be open for the Corporation to seek modification of the directions issued by this court. m)9th December 2013: The Corporation filed an appeal under Section 247 of the MLRC to challenge the order dated 4th August 2008 passed by the City Survey Officer, directing the entry of the name of the Trust for CTS No. 4579. For the first time, the Corporation raised an objection to the survey carried out by the City Survey Officer. n) 8th December 2014: The said appeal was dismissed by the District Superintendent of Land Records. o) 21st January 2016: The Corporation filed a second appeal under Section 247 of the MLRC, to challenge the order dismissing their first appeal by the District Superintendent. p) 25th January 2017: The Special Land Acquisition Officer passed an award in the name of the Trust for acquiring the said land proposed to be acquired by the Corporation, stating that it was passed under the Land Acquisition, Rehabilitation and Resettlement Act, 2013, along with the provisions under Section 11(1) of the Land Acquisition Act, 1894. q) Being aggrieved by the said award, the Trust filed a writ petition in this court challenging the award. The said writ petition is still pending. r) 6th June 2017: The appeal preferred by the Corporation before the DDLR was decided, and the order passed by the Superintendent of Land Records was quashed and set aside. Accordingly, the order of the City Survey Officer directing to allot CTS NO. 4579 in the name of the Trust and Mutation Entry No. 287 was quashed and set aside. In this appeal, the Corporation joined the District Collector as party respondent. s) 16th May 2018: Being aggrieved by the order passed by the DDLR, the Trust filed a revision application before the learned revenue minister, which was decided. The order passed by the DDLR was quashed and set aside, and the orders of the District Superintendent of Land Records and the City Survey Officer were confirmed. Hence, this petition by the Corporation.
5. The submissions made by the learned senior counsel for the Corporation are summarised as under: a) The Superintendent of Land Records directed the City Survey Officer only to allot the city survey number. However, the City Survey Officer recorded the conclusion on the title of the land and directed that a city survey number be allotted in the name of the Trust by entering the name of the Trust as the owner of the land. The area of 105400 square meters as stated in the agreement excluded the area of the lake, which is entirely a water body adjacent to survey no.1. According to the affidavit filed by the Tahsildar, the water body is situated in survey no.1 and the affidavit shows that the State Government had raised objections to the title of the Trust in respect of the said area. b) The conclusions recorded in the order of the City Survey Officer are beyond his jurisdiction. He was directed to only carry out a survey for allotting a city survey number for the area to be acquired for the Corporation. Hence, the DDLR rightly set aside the order of the City Survey Officer. However, the learned Minister blamed the learned Collector and, without examining the contentions raised by the Corporation, quashed and set aside the order passed by the DDLR. The Trust cannot claim title over the said land in the absence of any title document. The entire land referred to in the agreement is a water body and therefore it belongs to the State Government. c) By recording vague reasons, the learned Minister, without dealing with the reasons recorded by the DDLR, reversed the order passed by the DDLR. The reasons recorded by the learned Minister completely ignore the directions issued by the Superintendent of Land Records directing the City Survey Officer to carry out an inquiry only to allot a city survey number to the land proposed to be acquired by the Corporation. The grant in favour of the Trust is a limited grant, and absolute title does not vest in the Trust. The revenue record shows that the land is Shurakuttee, which is a term applied to villages or estates of which revenue is shared with the government. d) There are various litigations in respect of the other properties of the Trust, which are also granted under the same sanad, in which the government raised objections regarding the title of the land; however, the learned Minister ignored the contentions of the government in those litigations. Government’s objections could not have been ignored by the learned Minister and were required to be dealt with, being a quasi-judicial authority. Therefore, a fresh inquiry should have been ordered as per the Rules. Hence, the impugned order be quashed and set aside, and this Court, in exercise of the powers of superintendence, issue directions to hold a fresh inquiry.
6. Submissions made by the learned counsel for the Trust are summarised as under: a) The letter dated 25th November 2004, issued by the learned Collector, shows that the Corporation’s proposal for acquisition, as per the agreement, was not proceeded with on the grounds that, in the absence of 7/12 extracts, it is not possible to ascertain ownership of the land. On the date of the agreement and even on 30th April 2008, when a joint request was made for a survey, the Corporation had never raised any doubts about the title of the Trust. The Corporation was very clear in acquiring the land from the Trust, as the land belonged to the Trust as the owner. According to the joint request dated 30th April 2008, an emergency survey was carried out and a survey report and map were prepared on 28th May 2008, numbered as MR/2827/2008 and were submitted before the learned Collector. The Corporation accepted the report and the survey map, and therefore applied by letter 29th May 2008, and requested the Collector that the city survey number be assigned to the area proposed for acquisition. b) The Superintendent of Land Records ordered to hold an inquiry under Section 20(2) of MLRC. An inquiry contemplated under sub-section (2) of Section 20 of MLRC is only for the purpose of payment of land revenue. In the present case, the process of allotting a city survey number does not determine title, and the Trust has always held the title to the area proposed for acquisition. The Trust has demonstrated that neither the Corporation nor the State Government has disputed the Trust's title to the land proposed for acquisition. The order passed by the City Survey Officer in 2008 was challenged for the first time in 2014, only after the division bench of this court issued directions in the writ petition filed by the Trust. During the pendency of the writ petition before this court, the Corporation had preferred an appeal before the DDLR. c) Learned counsel for the Trust referred to the reply filed by the Corporation in the pending writ petition before this court and submitted that the title of the Trust was never challenged, even in the writ petition. The appeal before the DDLR was the second appeal, which was not maintainable; therefore, the order passed by the DDLR is non est. The objections were invited at the time of acquisition, but no objections were raised by any third party. The award passed pursuant to the directions issued by this court is a conditional award and does not comply with the directions issued by this court. d) For holding the inquiry under Section 20(2) of the MLRC, as ordered by the Superintendent of the Land Records, there was no necessity to give notice to the Collector. The Inquiry contemplated under Section 20 is only for the purpose of payment of land revenue. In the present case, the purpose of holding an inquiry was to ascertain the amount of compensation to be paid for taking over the Trust’s land by the Corporation, and there was no issue to be decided on the title. The Trust’s title was always there. The City Survey Officer has conducted the necessary inquiry and rightly directed the allotment of City Survey No. 4579 for the said land in the name of the Trust as the original holder. e) Learned counsel for the Trust relied upon Section 75 of the MLRC, which provides for the maintenance of the Register of alienated lands. He pointed out the Sanad of 1853, the Inam Decree and the entry in the alienation register to support his submissions that the Trust’s title was never questioned. The civil court’s decrees in respect of the other lands granted under the same title documents reject the objections raised by the Government on the Trust’s title. By Order dated 10th September 2014, this court dismissed the Second Appeal No. 107 of 2014, filed by the Corporation to challenge the civil court’s decree in respect of the Baner property granted to the Trust under the same title documents. f) Government Resolution dated 27th September 1984 permits the Trust to get the revenue in view of the Sanad granted to the Trust for various villages, which includes Bhosari village, where the present subject land is situated. By order dated 4th August 1971, the Talathi held an inquiry and part of Survey No. 1 shown as Gairan, was deleted. In various civil suits and revenue proceedings, the Government’s objections to the Trust’s title in respect of other villages, i.e. Siddhatek, Morgav, Mulshi and Wakad, based on the same title documents under the same Sanad are rejected. In one of the orders passed by the learned Minister in respect of Mulshi village, reference to Bhosari village is also made, stating that, as per Order dated 22nd December 1988, the land at Bhosalr is shown as soil grant in the name of the Trust. All these documents are part of the record in the proceedings before the authorities. g) The Trust was constrained to file Suit No. 685 of 2003 to challenge the agreement with the Trust, as the Trust felt betrayed seeing the Corporation’s painfully slow movements to complete the acquisition process, despite taking over possession of the land from the Trust. Hence, in the Order allowing the writ petition filed by the Trust, this court in paragraph 10 observed that the petitioner has been deprived of a very valuable land without payment of any compensation, and the Corporation’s action is in breach of Article 300-A of the Constitution of India. h) The City Survey Officer’s order dated 4th August 2008 was for the first time challenged in 2014, only after the Division Bench of this Court issued conditional directions to complete the acquisition process. Hence, the learned Minister has rightly set aside the order cancelling the order passed by the City Survey Officer. Submissions in rejoinder on behalf of the Corporation:
7. In response to the arguments raised on behalf of the Trust, the learned senior counsel for the Corporation submitted that the order passed by the Superintendent of Land Records did not direct that the name of the Trust be recorded. The jurisdiction exercised by the DDLR should be treated as a revisional jurisdiction. It is important to note that the learned senior counsel for the Corporation, however, does not dispute that a second appeal before the DDLR would not survive. But he also submits that it is merely a procedural lapse; hence, the jurisdiction exercised by the DDLR must be treated as a power exercised under the revisional jurisdiction. He further submits that the Divisional Commissioner’s letter to the Collector clearly records that there were objections raised on the ownership of the area proposed to be acquired, and so far as the area of the water body is concerned, the same could be owned only by the Corporation. Hence, the learned Minister has exercised powers beyond his jurisdiction by ignoring the relevant provisions of the MLRC. Analysis and Conclusions:
8. The controversy surrounding this petition has a chequered history. The subject matter of this litigation is a piece of land situated adjacent to a lake in Village Bhosari, Pune District. The Trust is a registered Public Charitable Trust that claims ownership of the said land. The Trust’s claim is based on a hereditary Sanad granted in A.D. 1709/10 by Shahoo Raja of Satara to Narayan Maharaj Bin Chintaman Maharaj for the expenses of a deity, “Mangal Moortis Deo of Chinchore”. The Trust relies on various documents, including letters from Shahoo Raja and Peshwa Ballaji Bajirao, which grant revenue rights for seven villages, including Bhosari village. The Trust also relies on an Inam Decree dated 31st March 1859, issued by the British Government, which continues the original grant by Shahoo Raja. The land’s title is not an issue to be adjudicated in the present litigation; however, the background in brief was necessary to understand the reason for the directions issued by the learned Superintendent of Land Records for conducting an inquiry of the said land and allotting a city survey number.
9. It is not disputed that in the Government Record, the Trust’s name is entered in respect of the said land, and the Corporation intended to acquire it. Hence, the Corporation entered into an agreement dated 8th July 1997 with the Trust for acquiring an area of 1,05,400 square meters of the open land situated adjacent to the lake at Survey No.1 of village Bhosari, Pimpri, District Pune. The agreement states that in the revenue record, the name of the Trust was entered as the owner of the said land, it is unencumbered, and the Trust is entitled to execute the agreement. The agreement also records that the land was to be utilised by the Corporation for public purposes; hence, the Trust agreed to enter into the transaction for transferring the ownership of the land to the Corporation in lieu of a monetary consideration. Hence, the Corporation entered into an agreement with the Trust for acquiring the said area.
10. As per the terms and conditions of the agreement, the Corporation agreed to have the land valuation conducted through the Town Planning and Valuation Department of the Government, and the Trust agreed to accept the consideration amount as per the valuation. Accordingly, the Director of the Town Planning Department on 20th November 1999 submitted a valuation report of the area proposed to be acquired. However, the learned Collector, on 25th November 2004, informed the Corporation that since the area proposed for acquisition is not allotted any survey number, the relevant 7/12 extracts have not been issued. Hence, the proposal for the acquisition of the area agreed to be acquired by the Corporation cannot be included in the acquisition proceedings. Thus, although the Corporation took over possession of the proposed area to be acquired, no compensation was paid.
11. Thereafter, a joint survey was carried out, and a plan bearing MR No. 2827/2008 was prepared. The City Survey Officer submitted the plan and the report to the Superintendent on 29th May 2008 and to the Collector. Hence, the Corporation, by letter dated 29th May 2008, requested the learned Collector to allot a city survey number to the area proposed to be acquired, excluding the area of the lake, to enable the Corporation to make payment of the compensation amount. A copy of the said letter was also marked to the Superintendent and the City Survey Officer. Hence, on 16th July 2008, the Superintendent directed the City Survey Officer to conduct a necessary inquiry under Section 122 and Section 20 (2) of MLRC. The City Survey Officer was thus directed to allot the last city survey number to the area proposed to be acquired, excluding the lake area adjacent to Survey No. 1, without prejudice to the rights of the State Government and adjoining landholders and without committing any breach of the provisions of Sections 106, 155, 134 and 137 of MLRC.
12. The City Survey Officer conducted an inquiry and, by order dated 4th August 2008, directed that the City Survey NO. 4579 be allotted to the said land, excluding the area of the lake adjacent to Survey No. 1, in the name of the Trust in the column of original holder by preparing the property card. The Corporation is aggrieved by this Order of the City Survey Officer; however, from the record, the following facts emerge as admitted by the parties:
(i) In the Government record, the Trust’s name is entered in respect of the area proposed to be acquired; hence, the Corporation entered into an agreement in 1997 with the Trust for acquiring the land for payment of a monetary consideration.
(ii) The Corporation took over possession of the land in
1999. But did not pay the amount of compensation.
(iii) As agreed, the valuation report was also submitted by the Director of the Valuation and Town Planning department of the Government, fixing the valuation at Rs. 1.33 Crores.
(iv) The land was not allotted any revenue survey number; hence, a joint survey was carried out, and a plan bearing MR No. 2827/2008 was prepared. This plan was never challenged.
(v) The Corporation requested the learned Collector to allot a revenue survey number to the land, to enable the Corporation to make payment of the compensation amount.
13. Thus, it is necessary to examine the scope of the enquiry conducted by the City Survey Officer pursuant to the directions issued by the learned Superintendent. The City Survey Officer was directed to conduct a necessary inquiry under Section 122 and Section 20 (2) of the MLRC, without prejudice to the rights of the State Government and the adjoining landholders and without committing any breach of the provisions of Sections 106, 155, 134 and 137 of MLRC. Section 20 is a power conferred upon a revenue officer to hold an inquiry. Sub-section (2) of Section 20 of MLRC provides for a formal inquiry to decide a claim where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government. Section 20 of the MLRC reads as under: “Section 20. Title of State in all lands, public roads, etc., which are not property of others. (1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below the high watermark, and of rivers, streams, nallas, lakes and tanks and all canals and watercourses, and all standing and flowing water, and all lands wherever situated, which are not the property of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of the State Government and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as may be prescribed by the State Government in this behalf, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting. Explanation.- In this section, high water-mark means the highest point reached by ordinary spring tides at any season of the year. (2) Where any property right in or over any property is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. (3) An order passed by the Collector or survey officer under sub-section (1) or sub-section (2) shall, be subject to one appeal and revision in accordance with the provisions of this Code. (4) Any suit instituted in any civil court after the expiration of one year from the date of any order passed under sub-section (1) or sub-section (2) or, if appeal has been made against such order within the period of limitation, then from the date of any order passed by the appellate authority, shall be dismissed (though limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in the case of an order under sub-section (2) the plaintiff has had due notice of such order. (5) Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the State Government.”
14. Section 122 is under Chapter VIII of the MLRC, which deals with the procedure for fixing the limits of the lands within the sites of villages, towns and cities. Section 106 is under Chapter VI of the MLRC, which deals with the assessment and settlement of land revenue of agricultural land. Section 106 empowers the Collector to correct errors in the area or assessment due to a mistake in survey or arithmetical calculations. Sections 134 and 137 are under Chapter IX of the MLRC, which deals with boundaries and boundary marks. Section 134 deals with the determination of field boundaries and their correctness by the village officers, as pointed out by the holder or person in occupation. Section 137 deals with the procedure for straightening out crooked boundaries. Section 150 is under Chapter X of the MLRC, which deals with land records and the record of rights. Section 150 provides the procedure to be followed for making entries in the record of rights and maintaining the register and dealing with the objections to the entries made.
15. From the facts of the present case, and the submissions made on behalf of the Trust by referring to various documents as recorded in the preceding paragraphs, it is clear that there was no dispute on the title of the Trust in respect of the land proposed to be acquired by the Corporation. The reason for directing an inquiry is apparent from the order dated 16th July 2008, passed by the learned Superintendent, that a land survey number was required to be allotted for determining the land value for payment of compensation. Section 2(37) of the MLRC defines ‘survey number’ as under: “2(37) "survey number" means a portion of land of which the area and assessment are separately entered, under an indicative number in the land records and includes
(i) plots reconstituted under a final town planning scheme, improvement scheme or a scheme of consolidation of holding which has come into force in any area under any law; and
(ii) in the districts of Nagpur, Wardha, Chanda and Bhandara any portion of land entered in the land records under any indicative number known as the khasra number; ”
16. Thus, when a land is allotted a survey number, the area and assessment are separately entered in the land records maintained under the provisions of MLRC. The phrase ‘land records’ is also defined under the MLRC. Section 2(18) defines ‘land records’ as under: “2(18) "land records" means records maintained under the provisions of, or for the purposes of, this Code and includes a copy of maps and plans of a final town planning scheme, improvement scheme or a scheme of consolidation of holdings which has come into force in any area under any law in force in the State and forwarded to any revenue or survey officer under such law or otherwise;”
17. The directions issued by the learned Superintendent to hold an inquiry under sub-section (2) of Section 20 of the MLRC, without prejudice to the rights of the other holders or the Government and without committing any breach of Sections 106, 134, 137 and 150, is therefore apparent that before allotting a survey number to the land proposed to be acquired, it was found necessary to examine if any other claim exists in the land.
18. Thus, by keeping in mind the scope of Sections 122 and 20(2) read with Sections 106, 134, 137 and 150 of the MLRC, the City Survey Officer conducted an inquiry. The reasons recorded in the order dated 4th August 2008, indicate that the City Survey Officer examined the joint survey map and report bearing MR No. 2827/08, the documents pertaining to the sanad granted by Chhatrapati Shahoo Maharaj, Inam decree and alienation register. He further observed that these documents were not produced at the time of the city survey; hence, the land was neither allotted any survey number nor was a property card prepared. The City Survey Officer recorded that he examined all the records pertaining to the adjoining lands to Survey No. 1 of village Bhosari and allotted City Survey No. 4579 for an area of 7 Hectares 89 Ares in the name of the Trust as the original holder and accordingly directed to prepare the property card.
19. It appears that the corporation unnecessarily stretched the issue over the direction issued by the City Survey Officer to enter the name of the Trust as ‘original holder’. The corporation took over possession of the land after entering into the agreement with the Trust, which recorded that the land was in the name of the Trust as the owner. The events that occurred after taking over possession were only to ascertain the land value for payment of compensation.
20. All the documents that are part of the record and proceedings are produced on record by the Trust by filing an affidavit. The civil court’s decrees in respect of the other lands granted under the same title documents rejected the objections raised by the Government on the Trust’s title. By Order dated 10th September 2014, this court dismissed the Second Appeal No. 107 of 2014, filed by the Corporation to challenge the civil court’s decree in respect of the Baner property granted to the Trust under the same title documents. A Government Resolution dated 27th September 1984 permitted the Trust to get the revenue in view of the Sanad granted to the Trust for various villages, which includes Bhosari village, where the said land is situated. In various civil suits and revenue proceedings, the Government’s objections to the Trust’s title in respect of other villages, i.e. Siddhatek, Morgav, Mulshi and Wakad, based on the same title documents under the Sanad are rejected. In one of the orders passed by the learned Minister in respect of Mulshi village, reference to Bhosari village is also made, that as per Order dated 22nd December 1988, the land at Bhosari is shown as a soil grant in the name of the Trust.
21. It is apparent that the Corporation and the State Government, for the reasons best known to them, were slow to complete the acquisition process, despite taking over possession of the said land from the Trust. I see substance in the arguments made by the learned counsel for the Trust that the Trust felt betrayed and was constrained to file Suit NO. 685 of 2003 to challenge the agreement with the Trust. However, in view of the communication dated 6th March 2010, the Corporation assured regarding the grant of TDR (‘Transferable Development Rights’), on the condition of withdrawing the suit. Once again, the Trust believed the Corporation's assurance and withdrew the suit. However, nothing happened. It appears that although a city survey number was allotted to the land proposed to be acquired, the proceedings were not concluded, and compensation was not paid. Hence, the Trust filed Writ Petition No. 7497 of 2013 in this Court. By order dated 2nd May 2014, the Hon’ble Division Bench of this Court allowed the writ petition. The operative part of the order reads as under: “ORDER
(i) We grant time of two years from today to the fourth
Respondent-Municipal Corporation to take recourse to the proceedings of the compulsory acquisition in respect of the land subject matter of agreement dated 8th July 1997;
(ii) If the award under the relevant law is not made within a period of two years from today, on expiry of the period of three months from the said period of two years, the Municipal Corporation shall restore the possession of the land subject matter of Petition to the Petitioner. While restoring the said land, the Municipal Corporation will have to restore the same to its original condition as on the date of the said Agreement;
(iii) In the event, the fourth Respondent is in position to offer
TDR to the Petitioner before the completion of acquisition within the stipulated period of two years, it will be open for the fourth Respondent to move this Court for modification of the directions issued as above;
(iv) We make it clear that we have made no adjudication on the disputed questions raised by the State Government as well as by the Municipal Corporation as regards the title of the Petitioner to a part of the land subject matter of the said agreement. The said issue will have to be resolved as observed earlier;
(v) We partly allow the Petition on above terms;
(vi) Parties to act upon the authenticated copy of the order. ”
22. The Corporation laid much emphasis on some of the observations by the Division Bench. The DDLR has referred to the observations made regarding the title of the Trust, to hold that the City Survey Officer needed to issue notice to the State Government to examine the title of the land, as the Division Bench had kept the issue of the title open. Hence, it is necessary to understand the directions issued by the Division bench on the issue of title. The Division Bench observed in paragraph 12 as under: “12. Therefore, as of today, the Petitioner has made out a case, for restoration of the said land the possession of which was handed over to the fourth Respondent-Municipal Corporation under the agreement dated 8th July, 1997. However, we are conscious of the fact that the Municipal Corporation has already used a part of the said land for public purpose. Therefore, we propose to grant time of two years to the Municipal Corporation to ensure that acquisition proceedings are initiated and the same are taken to its logical conclusion. At this stage, we are not entering into the controversy whether the acquisition will be under the said Act of 1894 or under the said Act of 2013. We may, however, make it clear that while making an award of grant of compensation, it is for the Collector or the Special Land Acquisition Officer to decide whether the petitioner is entitled to receive any compensation and to what extent. The award will also contain a statement as regards the exact area which is the subject matter of acquisition. Therefore, it is not necessary for us to go into the issue whether the petitioner is the absolute owner of the entire said land subject matter of the said agreement as the said issue will be taken care of during the acquisition proceedings if any.”
23. Thus, it is clear that the Division Bench did not go into the issue of absolute ownership of the Trust by clarifying that while making an award for grant of compensation, it is for the collector or the acquisition officer to decide the Trust’s entitlement to receive compensation and to what extent. In view of these observations it was further clarified in the operative order in clause (iv) that the issue regards title raised by the Corporation and the State Government will have to be resolved as observed earlier; which means that it has to be resolved by the Collector or the Land Acquisition Officer while deciding grant of compensation as recorded by the Division Bench in paragraph 12 of the Order. Thus, the issue of ‘absolute ownership’ of the Trust was kept open only for the purpose of deciding the entitlement to receive compensation and the extent of compensation. The DDLR misinterpreted this observation to mean that the issue of title was kept open for deciding it in the inquiry under the MLRC.
24. I am constrained to observe that there is complete nonapplication of mind by the DDLR and an attempt to overreach the directions issued by the Division Bench. He has not only misinterpreted the order in the writ petition but has also ignored the provisions of MLRC. In a second appeal under Section 247 of MLRC filed by the Corporation, which was not maintainable in view of sub-section (3) of Section 20 of the MLRC, the DDLR went to the extent of adding the State Government as party respondent and permitted fresh pleadings and adjudicated on the title of the Trust by completely misinterpreting the directions of the Division Bench which kept the issue of absolute ownership of the Trust open to be decided in acquisition proceedings by the Collector or the acquisition officer.
25. It was only after the Writ Petition was filed in this court before the Division Bench, that the Corporation filed an appeal under section 247 of the MLRC before the District Superintendent of Land Records to challenge the Order dated 4th August 2008 passed by the City Survey Officer. The District Superintendent of Land Records examined the grounds of challenge raised by the Corporation and held that after examining the entire record and considering the submissions of the Corporation, the City Survey Officer held the necessary inquiry as contemplated under Section 20(2) read with Section 122 of the MLRC. The District Superintendent of Land Records found no substance in the objections raised by the Corporation and thus confirmed the order of the City Survey Officer and dismissed the Corporation’s appeal on 8th December 2014.
26. Being aggrieved by the dismissal of their appeal, the Corporation filed a second appeal under Section 247 of the MLRC before the DDLR. In this appeal, the Corporation also added the District Superintendent of Land Records and the District Collector as party respondents. In view of sub-section (3) of Section 20 of the MLRC, only one appeal is provided in accordance with the provisions of the MLRC against an order passed under sub-section (1) or sub-section (2). Hence, the second appeal filed before the DDLR by the Corporation was not maintainable. However, in this non-maintainable appeal, DDLR not only permitted the learned Collector to be added as a party respondent, but also permitted the filing of substantive pleadings raising new grounds, which is even beyond the scope of an appeal under Section 247 of the MLRC.
27. There is no debate on the point that, in view of subsection (3) of Section 20 of the MLRC, only one appeal is provided in accordance with the provisions of the MLRC against an order passed under sub-section (1) or sub-section (2). However, learned senior counsel for the Corporation submitted that the order passed by the DDLR in the appeal filed by the Corporation can be treated as the revisional powers exercised under Section 257 of the MLRC. I do not find any substance in this argument, as the scope of appeal under Section 247 and the revision under Section 257 of the MLRC are completely different. In the facts of the present case, although only one appeal was permissible in view of sub-section (3) of Section 20 of the MLRC, the DDLR entertained the second appeal filed by the Corporation under Section 247 of the MLRC and further permitted the addition of parties and fresh pleadings by taking recourse to the appellate authority’s powers under sub-section (3) of Section 255 of the MLRC. Hence, the DDLR has acted without any jurisdiction.
28. The DDLR allowed the appeal by entertaining objections raised on behalf of the State Government. The learned Collector contented that: (i) the area of 7 Hectares 89 Ares entered in the name of the Trust is originally a water body, as the water dried up, it became usable land; hence, it was necessary to conduct an inquiry under Section 20 of the MLRC on the title of the land, (ii) the ownership of the land vested in the State Government, and the Sanad granted to the Trust was only for the expenses of the Deity, and (iii) the agreement entered into by the Corporation with the Trust is illegal, therefore, the Order passed by the City Survey Officer without hearing the State Government was liable to be set aside.
29. Since the learned Collector raised objections to the Trust’s title, the Trust produced all the title documents and the earlier orders passed by the Collector. The Trust contended that by the Sanad dated 13th January 1853, Raja Shahoo Chhatrapati granted the land to the erstwhile Chinchwad Devasthan. Thereafter, in the Inam Commission Decree proceedings conducted before the Collector, in respect of the entire village Bhosari, the land, including the said land granted by the original Sanad, was continued in Inam for the expenses of the Chinchore Deosthan in the name Narayan Deo Bin Chintaman Maharaj and his male lineal descendants. In the alienation register maintained by the Collector, the name of the Trust was recorded as Inamdar and the owner of the village Bhosari, which includes the said land. Thereafter, on an application made by the Trust, the Collector passed an order dated 2nd February 1971, that the lands at village Bhosari, including the said land, belonged to the Trust. The Collector also approved the layout plans of the Trust by order dated 12th November 1986. It was thus alleged by the Trust that as the Collector had filed a false affidavit, proceedings under Section 340 of the Criminal Procedure Code, read with Sections 191, 192 and 199 of the Indian Penal Code, should be initiated. However, the DDLR rejected the prayer for action under the criminal procedure code on the ground that it should be adjudicated before the appropriate jurisdictional forum.
30. In view of the submissions made regarding the directions issued for entering the name of the Trust as the original holder, it is also necessary to understand the word “original holder” used by the City Survey Officer. It is argued on behalf of the Corporation that the City Survey Officer exceeded his jurisdiction by directing that the name of the Trust should be entered as ”original holder”, when the Superintendent directed him to allot only a survey number to the land proposed to be acquired. It is absolutely illogical that the City Survey Officer was required only to allot a survey number without entering the particulars of the land holding. The purpose of the directions issued by the Superintendent to the City Survey Officer was to allot the city survey number to the proposed land as per reference letters no. 2, i.e. letters dated 29th May 2008 and 11th July 2008. These letters pertain to the request made by the Corporation to make an entry in the revenue record and allot a city survey number to the land proposed to be acquired to enable the Corporation to make payment towards compensation to the Trust for the land which is already taken over by the Corporation from the Trust.
31. Hence, the directions were issued to the City Survey Officer to conduct an inquiry under Sections 122 and 20(2) and without committing a breach of Sections 106, 155, 134 and 137. The provision of Section 122 provides for ascertaining and determining the lands to be included within the site of any village, town or city and to fix limits of the sites determined by having regard to all the subsisting rights of the landholders. Section 20(2) provides for holding a formal inquiry about any property or any right claimed by or on behalf of the Government or by any person as against the Government. As per section 2(37) a survey number means a portion of land of which the area and assessment are separately entered. It is necessary to make a reference to the definitions of “to hold land” and “holding” defined under section 2(12) and 2(13), which reads as under: “Section 2 (12) " to hold land" or "to be a land-holder or holder of land" means to be lawfully in possession of land, whether such possession is actual or not;” “Section 2 (13) "holding" means a portion of land held by a holder;”
32. The word “occupancy” is defined under section 2(22), which means a portion of land held by an occupant. “Occupant” is defined under section 2(23), which means a holder in actual possession of unalienated land, other than the occupancy as referred in the definition. The word “occupation” is defined under section 2(24) to mean possession. Section 2(23) reads as under: “Section 2 (23) "occupant" means a holder in actual possession of unalienated land, other than a tenant or Government lessee; provided that, where a holder in actual possession is a tenant, the land holder or the superior landlord, as the case may be, shall be deemed to be the occupant;”
33. Thus, in view of the definition of “occupant” read with the definitions of “occupancy”, “occupation”, “to hold land” and “holding”, it is clear that a person in lawful possession means a holder. The phrase holder of land is also defined under section 2(12), which reads as under: “2(12) “to hold land” or “to be a landholder or holder of land” means to be lawfully in possession of land, whether such possession is actual or not.”
34. In the present case, the source of possession/occupation of the Trust under the sanad of 1853 is not in dispute. It is also not in dispute that the Trust was always in lawful possession of the land proposed to be acquired. Hence, I see no fault in the order passed by the City Survey Officer directing to allot the city survey number in the name of the Trust as “original holder”.
35. Admittedly, the Trust has always been in possession of the said land in lieu of the Inam granted in 1853 by the Chhatrapati Shahoo Maharaj. The Trust’s title and occupancy based on the Inam were never challenged. The corporation entered into an agreement with the Trust to acquire the said land for utilising the reservations for public purposes, as in the Government record, the Trust’s name was entered in respect of the said land.
36. The dates and events discussed in the preceding paragraphs reveal that the Corporation took over possession but did not pay compensation, as the land was not allotted any survey number. Hence, only with the object of enabling the corporation to pay the compensation, a joint request was made to survey the land. Accordingly, a survey was carried out, and the MR Plan was prepared. This plan was never challenged. Thereafter, the corporation applied for an allotment of a survey number only to enable the Corporation to make payment towards compensation to the Trust.
37. Thus, the learned Minister correctly appreciated the facts and the legal provisions and observed as follows: (a) The City Survey Officer examined all the documents produced by the Trust. The Corporation was represented while carrying out the survey and never raised any objection, and after the survey map was prepared, the Corporation applied for allotment of the survey number. Thus, as per the directions issued by the Superintendent, it was obligatory on the City Survey Officer to enter the name of the landholder while allotting the survey number for preparing the property card. Simply allotting a survey number would have been redundant, as the purpose of allotting the survey number was to make a payment towards the compensation amount. (b) As per Government Order dated 20th September 1984, the Talathi was authorised to collect revenue of the villages granted to the Trust as Inam, and this order included Bhosari village, where the said land under acquisition is situated. Out of the lands granted to the Trust, the civil suits for the lands at village Siddhatek and Morgav were decided in favour of the Trust, rejecting the objections raised by the State Government. In revenue proceedings for the lands at village Mulshi also the Trust’s contentions regarding title based on the same documents were accepted.
(c) The Lake area at Bhosari village was used for public purposes and was not assessed. In view of the change in the use also the purpose is for public utility which is ignored by the DDLR and he has erroneously held that a resurvey was necessary. DDLR failed to appreciate the title documents. In response to the Corporation’s proposal for the grant of TDR to the Trust in lieu of monetary consideration, the proposal was accepted by the Town Planning Department on 12th April 2017, subject to verification of title from the revenue department. In view of setting aside the DDLR’s Order dated 6th June 2017, the Corporation should take steps for the grant of TDR as per the order dated 12th April 2017.
38. It was also submitted on behalf of the Corporation that the said land is shown with the remark “Shurakutte” in the record, which is a term applied to villages or estates of which revenue is shared with the government; hence, a resurvey of the land is necessary. In my view, this remark also supports the Trust's claim to the land, given the sanad granted by the Shaoo Raja in 1853 and confirmed by the British and Indian Governments through the issuance of the Inam Decree and the entry of the Trust's name in the alienation register. The City Survey Officer has correctly appreciated the record and, considering the directions issued by the Superintendent, rightly directed to enter the name of the Trust as the original holder by allotting the city survey number to the said land. The Order of the City Survey Officer is rightly confirmed by the District Superintendent. The learned Minister correctly appreciated the facts and the legal provisions and set aside the Order by the DDLR and confirmed the Orders by the City Survey Officer and the District Superintendent. Therefore, I see no reason to interfere with the impugned order.
39. This is a classic case where the holder of the land is deprived of all the rights by the dishonest conduct of a public body and the government, after dispossessing the holder by promising payment of compensation. It is necessary to make a reference to the observations in the Order dated 2nd May 2014 by the Division Bench of this court on the conduct of the Corporation, which was the fourth respondent in the petition. Paragraph 10 reads as under: “The petitioner has been deprived of a very valuable land in its possession without payment of any compensation. There is no acquisition of the said land made under the said Act of 1894. Therefore, the action of the fourth Respondent is in breach of Article 300-A of the Constitution of India.”
40. Despite the directions issued by the Division Bench of this Court on 2nd May 2014, even after a lapse of more than a decade, the Trust is still deprived of its rights and no compensation is paid, although the possession was taken over by the Corporation twenty-six years back in 1999.
41. For the reasons recorded above, the writ petition is dismissed. (GAURI GODSE, J.)