Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.739 OF 2021
1. Pankaj Unit No. 1 Housing )
Development Company Private )
Limited, a company incorporated ) under the Companies Act, 1956 ) having its registered office at )
Parijat, Gokhale Road (North), )
Dadar, Mumbai-400 028 )
2. Pankaj Unit No. 2 Housing )
Development Company Private )
Limited, a company incorporated ) under the Companies Act, 1956 ) having its registered office at )
Parijat, Gokhale Road (North), )
Dadar, Mumbai-400 028 )
3. Samartha Development Corporation, ) through its Managing Partner, )
Vikas Kamlakar Walawalkar, ) a partnership firm registered under ) the Indian Partnership Act, 1932 ) having its registered address at )
11-A, Suyash, Gokhale Road )
(North), Dadar (West), )
Mumbai 400 028 ) ...PETITIONERS
NANDIWADEKAR
Secretary, Revenue & Forest )
Department, Mantralaya, )
Mumbai – 400 032 )
2. Divisional Commissioner, )
Konkan Division at Mumbai )
Old Secretariat, 1st
Floor Vistar )
Bhavan, Next to Elphinstone )
College, Kalaghoda, Fort, )
Mumbai – 400 001 )
3. Municipal Corporation of )
Greater Mumbai, a statutory ) corporation under the Mumbai )
Municipal Corporation Act, 1888 ) and having its office at Mahapalika )
Marg, Mumbai 400 001 )
4. Chief Engineer (Development Plan) )
Mumbai Municipal )
Corporation having his office at )
Mahapalika Marg, Mumbai – 00 001 )
5. The Tahsildar, Andheri )
Road, Near Bhavan’s College, )
Tepgoan, Andheri (West), )
Mumbai 400 058 )
6. Byramjee Jeejeebhoy Private )
Limited, a company incorporated ) under the Companies Act, 1956 ) having its registered office at )
83, Jolly Maker Chambers, )
Nariman Point, Mumbai 400 021 )
7. Oshiwara Land Development )
Company Private Limited, ) a company incorporated under ) the Companies Act, 1956 having ) its registered office at 2nd floor, )
71-73 Botawala Building, )
Apollo Street, Bombay Samachar )
Marg, Mumbai – 400 023 ) ....RESPONDENTS
1. Oshiwara Land Development )
Company Private Limited, a company ) incorporated under the Companies Act, 1956) having its registered office at 2nd floor, )
71-73 Botawala Building, Apollo Street, )
Bombay Samachar Marg, Mumbai – 400 023)
Marg, Carmichael Road, Mumbai – 400 026.) ...PETITIONERS
Revenue & Forest Department, Mantralaya, )
Mumbai – 400 032 )
2. Divisional Commissioner, )
Konkan Division at Mumbai )
Old Secretariat, 1st
Floor Vistar Bhavan )
Next to Elphinstone College, Kalaghoda, )
Fort, Mumbai – 400 001 )
3. Municipal Corporation of Greater )
Mumbai, a statutory corporation under the )
Mumbai Municipal Corporation Act, 1888 ) and having its office at Mahapalika Marg, )
Mumbai 400 001 )
4. Chief Engineer (Development Plan) )
Mumbai Municipal Corporation having his ) office at Mahapalika Marg, Mumbai – 400 001)
Near Bhavan’s College, Tepgoan, )
Andheri (West), Mumbai 400 058 )
6. Byramjee Jeejeebhoy Private Limited,) a company incorporated under the Companies)
Act, 1956 having its registered office at )
83, Jolly Maker Chambers, Nariman Point, )
Mumbai 400 021 )
7. Pankaj Unit No. 1 Housing )
Development Company Private Limited, ) a company incorporated under the Companies)
Act, 1956 having its registered office at )
Parijat, Gokhale Road (North), Dadar, )
Mumbai-400 028 )
8. Pankaj Unit No. 2 Housing )
Development Company Private Limited, ) a company incorporated under the )
Companies Act, 1956 having its registered ) office at Parijat, Gokhale Road (North), )
Dadar, Mumbai -400 028 )
9. Samartha Development Corporation, ) a partnership firm registered under the Indian )
Partnership Act, 1932 having its registered )
(North), Dadar (West), Mumbai 400 028 ) ....RESPONDENTS
The Samarth Nagar Lokhandwala )
Complex Co-operative Housing Societies )
Association Ltd., an Association of societies ) registered under the Maharashtra Co-operative)
Societies Act, 1960 bearing Reg. No. BOM/ )
WKW/GNL/2009/Year 1999-2000 having ) its registered office at Garden No.5, )
Lokhandwala Complex, Andheri (West), )
Mumbai – 400 053 ) ….Petitioners
Revenue & Forest Department, Mantralaya, )
Mumbai – 400 032 )
2. Divisional Commissioner, )
Konkan Division at Mumbai )
Old Secretariat, 1st
Floor, Vistar Bhavan, )
Next to Elphinstone College, Kalaghoda, )
Fort, Mumbai – 400 001 )
Mumbai, a statutory corporation under the )
Mumbai Municipal Corporation Act, 1888 ) and having its office at Mahapalika Marg, )
Mumbai 400 001 )
4. Chief Engineer (Development Plan) )
Mumbai Municipal Corporation ) having his office at Mahapalika Marg, )
Mumbai – 400 001 )
5. The Tahsildar, Andheri ) having his office at New Dadabhai Road, )
Near Bhavan’s College, Tepgoan, )
Andheri (West), Mumbai 400 058 )
6. Byramjee Jeejeebhoy Private Limited,) a company incorporated under the Companies)
Act, 1956 having its registered office at 83, )
Jolly Maker Chambers, Nariman Point, )
Mumbai 400 021 )
7. Oshiwara Land Development )
Company Private Limited, a company ) incorporated under the Companies Act, 1956 ) having its registered office at 2nd floor, )
71-73 Botawala Building, Apollo Street, )
Bombay Samachar Marg, Mumbai – 400 023) …..Respondents
Apna Ghar (East) CHS Association Ltd., ) an Association of societies registered ) under the Maharashtra Co-operative )
Societies Act, 1960 bearing Reg. )
No. BOM/WKW/GNL/2011/2000-2001 ) having its registered office at Veer )
Savarkar Maidan, Ground No.6, )
Krantiveer Vasudev Balvant Phadke Road, )
Apna Ghar, Swami Samartha Nagar, )
Lokhandwala, Andheri (West), )
Mumbai – 400 053 ) …Petitioners
Revenue & Forest Department, Mantralaya, )
Mumbai – 400 032 )
2. Divisional Commissioner, )
Konkan Division at Mumbai )
Old Secretariat, 1st
Floor, Vistar Bhavan, )
Next to Elphinstone College, Kalaghoda, )
Fort, Mumbai – 400 001 )
3. Municipal Corporation of Greater )
Mumbai, a statutory corporation under the )
Mumbai 400 001 )
4. Chief Engineer (Development Plan) )
Mumbai Municipal Corporation having his) office at Mahapalika Marg, )
Mumbai – 400 001 )
5. The Tahsildar, Andheri ) having his office at New Dadabhai Road, )
Near Bhavan’s College, Tepgoan, )
Andheri (West), Mumbai 400 058 )
6. Byramjee Jeejeebhoy Private Limited,) a company incorporated under the )
Companies Act, 1956 having its registered ) office at 83, Jolly Maker Chambers, )
Nariman Point, Mumbai 400 021 )
7. Oshiwara Land Development )
Company Private Limited, a company ) incorporated under the Companies Act, )
1956 having its registered office at )
2nd floor, 71-73 Botawala Building, )
Apollo Street, Bombay Samachar Marg, )
Mumbai – 400 023 ) ....Respondents
Apna Ghar (West) CHS Association Ltd., ) an Association of societies registered under ) the Maharashtra Co-operative Societies )
Act, 1961 bearing Reg. No. BOM/W-K/GNL/)
1012/2000-2001 having its registered office ) at Kamlakar Walawalkar Udya, Lokhandwala )
‘X’ Road No.1, Swami Samartha Nagar, )
Andheri (West), Mumbai – 400 053 ) …PETITIONERS
Revenue & Forest Department, Mantralaya, )
Mumbai – 400 032 )
2. Divisional Commissioner, )
Konkan Division at Mumbai )
Old Secretariat, 1st
Floor, Vistar Bhavan, )
Next to Elphinstone College, Kalaghoda, )
Fort, Mumbai – 400 001 )
3. Municipal Corporation of Greater )
Mumbai, a statutory corporation under the )
Mumbai Municipal Corporation Act, 1888 ) and having its office at Mahapalika Marg, )
Mumbai 400 001 )
Mumbai Municipal Corporation having his ) office at Mahapalika Marg, Mumbai – 400 001)
5. The Tahsildar, Andheri ) having his office at New Dadabhai Road, )
Near Bhavan’s College, Tepgoan, )
Andheri (West), Mumbai 400 058 )
6. Byramjee Jeejeebhoy Private Limited,) a company incorporated under the Companies )
Act, 1956 having its registered office at )
83, Jolly Maker Chambers, Nariman Point, )
Mumbai 400 021 )
7. Oshiwara Land Development )
Company Private Limited, a company ) incorporated under the Companies Act, 1956) having its registered office at 2nd floor, )
71-73 Botawala Building, Apollo Street, )
Bombay Samachar Marg, Mumbai – 400 023) ....RESPONDENTS
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Mr. Vineet Naik, Senior Advocate along with Mr. Kunal Dwarkadas, Mr.Sukand Kulkarni and Mr. Shailesh Mahimturai/by M/s. Mahimtura &
Co. for the petitioner in WP/739/2021.
Mr.Zal Andhyarujina, Senior Advocate a/w Mr.Kunal Dwarkadas, Mr.Ayaz Bilawala and Mr. Yogesh Gaikwad i/by M/s. Bilawala & co. for the Petitioner in WP/1023/2021 and for the Respondent No.7 in other
Writ petitions.
Mr.Kunal Bhanage a/w Mr.Akshay Pawar for the Petitioner in
WP/2368/2022.
Mr.Kunal Bhanage a/w Mr.Anish Khandekar, for the Petitioner in
WP/2457/2022.
Mr.Atul Damle, Senior Advocate a/w Mr.Yashodeep Deshmukh and
Ms.Vandana Mahadik for the respondents-MCGM.
Ms.Jyoti Chavan, Asst. Government Pleader, State for the Respondent in
WP/739/2021.
Mr.Himanushu Takke, Asst. Government Pleader, State for the
Respondent in WP/1023/2021.
Ms.Uma Palsuldesai, Asst. Government Pleader, State for the Respondent in WP/2454/2022.
Mr.Amit Shastri, Asst. Government Pleader, State for the Respondent in
WP/2368/2022.
Mr.Shamrao B. Gore, Asst. Government Pleader, State for the
Respondent in WP/2457/2022.
Mr.Darshit Jain i/by Mrs. Divya D.Jain and Mr. Dileep Satale, for the
Respondent No.6 in WP/739/2021, WP/1023/2021, WP/2454/2022 and
WP/2368/2022.
Mr.Arwilkar, Executive Engineer and Mr.Sankhe, Assistant Engineer, DP
Dept. -MCGM present.
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JUDGMENT
2. During the period between 2nd October 1860 to 1948, by a kowl/ grant dated 2nd October 1860, the Principal Collector of Konkan (on behalf of the East India Company) granted inter alia the entire village Oshiwara, including Survey No.41, admeasuring 723 acres and 30 gunthas in favour of the predecessors-in-title of Byramjee Jeejeebhoy Private Limited (Respondent no.6), without the requirement to pay land revenue.
3. It is the case of the petitioners that the respondent no.6 spent over Rs.2,00,000/- prior to the year 1847 for development of the Larger Land for construction of salt pans. The respondent no.6 and its predecessor-in-title executed various contracts with several parties for collecting limestone, palm trees, oyster shells and for fishing, in addition to selling rights to remove sand, earth, moor boats and collect salt. In the year 1948, the Larger Land was reserved for non-agricultural and industrial development. On 4th January 1952, the Salsette Estates (Land Revenue Exemption Abolition), 1951 (for short “the said Salsette Estate Act) came into force.
4. Some time in the year 1961, a part of the Larger Land was notified for acquisition by the State Government for the purposes of housing. On 25th January 1964, the respondent no.6 executed an Agreement to sale for a part of the Larger Land to one M/s.New Swastik Land Corporation (hereinafter referred to “New Swastik”). The respondent no.6 had to adopt legal proceedings against New Swastik in view of New Swastik having failed to complete the same. On 15th April 1964, the Mamlatdar, Andheri conducted an enquiry under Section 4 of the Salsette Estates Act in order to ascertain whether the Larger Land was “waste lands” and also whether the respondent no.6 or its predecessors-in-title had “appropriated” the Larger Land before 14th August 1951.
5. By an order dated 15th April 1964, the Mamlatdar, Andheri conducted an eqnuiry under Section 4 of the Salsette Estates Act and ascertained that in any event, the larger land was appropriated by the estate holders much prior to 14th August 1951. The State of Maharashtra filed an appeal before the Additional Collector, Bombay Suburban District, Bombay impugning the said order dated 15th April 1964 passed by the Mamlatdar.
6. By an order dated 9th January 1965 the said appeal preferred by the State of Maharashtra came to be dismissed by the Additional Collector. The Additional Collector upheld the decision of the Mamlatdar that the said larger land was not a “waste land.” The Additional Collector held that the said larger land cannot be declared to be the property of the State under Section 4 of the Salsette Estates Act.
7. It is the case of the petitioners that a suit bearing No.660 of 1968 was filed by the respondent no.6 against the said New Swastik in this Court for specific performance of the Agreement to Sale dated 25th January 1964. Those parties filed the consent terms under which the larger land (or whatever balance portion remained thereof) was conveyed and transferred to Oshiwara Land Development Company Private Limited, the respondent no.7 herein as Assignee of the said New Swastik. This Court passed a decree in terms of the consent terms. The said consent terms recorded that out of the total area of the larger land, an area admeasuring approximately 177 acres 17 and half gunthas was acquired by MHADA for the purpose of developing housing schemes and accordingly the said area was excluded from the land agreed to be sold to the respondent no.7 under the said Consent Decree.
8. It is the case of the petitioners that during the period between 1965 to 2020, the said order passed by the Additional Collector on 9th January 1965 was acted upon by the petitioners, the respondent no.6 and various statutory authorities.
9. On 11th April 2016, Maharashtra Act No.XI of 2016 was published by which the Maharashtra Land Revenue Code (for short “MLR Code”) was amended. A proviso was added to sub-section (1) of Section 257. On 15th January 2018, Maharashtra Act VI of 2018 was published by which the Maharashtra Land Revenue Code was further amended.
10. It is the case of the petitioners that on 31st May 2019, a meeting was convened under the Chairmanship of the Chief Secretary of the Government of Maharashtra in the presence of the Additional Chief Secretary, Revenue and Forest Department as well as the Municipal Commissioner of the respondent no.3-Corporation and the Collector. According to the petitioners, a decision appears to have been taken to initiate an application under Section 257 of the said MLR Code seeking revision of the order dated 9th January 1965 passed by the Additional Collector.
11. On 20th June 2019, the Municipal Corporation (respondent no.3) filed a Revision Application No.27 of 2019 under Section 257 of the MLR Code challenging the order dated 9th January 1965 passed by the Additional Collector without obtaining prior sanction from the State Government. On 13th September 2019, the Municipal Commissioner of respondent no.3 addressed a letter to the Chief Secretary, Government of Maharashtra stating that the then Municipal Commissioner had urgently sought directions under Section 257 of the MLR Code.
12. It is the case of the petitioners that in the said letter dated 13th September 2019, the Municipal Corporation admitted that the real reason for filing the revision application was the huge amount of public money required to be paid in acquiring these lands.
13. On 7th January 2020, the Divisional Commissioner, Konkan Division (respondent no.2) passed an order for impleadment of the petitioners in the revision application filed by the Municipal Corporation and impleaded the petitioners as the respondent nos.[3] & 4 in the said application. On 6th November 2020, the Divisional Commissioner, Konkan Division sent a letter to the Additional Chief Secretary of the respondent no.1 requesting for permission of the State Government to conduct a hearing and to decide the revision application.
14. It is the case of the petitioners that though the Divisional Commissioner, Konkan Division had listed the said revision application for hearing on 12th and 14th February 2020 and was thereafter intending to take up the said matter on 27th March 2020, on account of nationwide lockdown, no hearing took place until 11th November 2020. On 11th November 2020, hearing fixed was adjourned on account of nonavailability of the Divisional Commissioner, Konkan Division. On 26th November 2020, the petitioners filed a detailed representation with the State of Maharashtra requesting for a hearing in connection with the request by the respondent nos.[2] and 3 for sanction of the State of Maharashtra. The petitioners placed various factors to be considered on record before exercise of powers under Section 257(1) of the MLR Code.
15. On 31st December 2020 / 8th January 2021, the State of Maharashtra granted permission to the Divisional Commissioner, Konkan Division to decide on merit the revision application challenging the order dated 9th January 1965 passed by the Additional Collector. On 17th March 2021, the petitioners filed this writ petition on various grounds.
16. This matter was on board on 28th July 2021 along with Writ Petition No.1023 of 2021 when this Court directed that the respondent no.2-Divisional Commissioner, Konkan Division if proposes to fix any date for hearing the Revision Application No.27 of 2019, clear 10 days prior notice to be given to the parties in the said revision application. Brief facts in Writ Petition No.1023 of 2021
17. The petitioners have impugned the order dated 31st December, 2020 passed under section 257(1) of the Maharashtra Land Revenue Code and also seek a writ of prohibition against the respondent no.2 from entertaining or proceeding with and deciding the 2019 Revision Application filed by the respondent no.3. It is the case of the petitioners that the petitioner are the occupants of the portion of land admeasuring 32.375 acres which is part of the lands reserved and acquired for Sewerage Purification System (hereinafter referred to as “SPS”) admeasuring 64.75 acres, out of a larger piece of land bearing survey no.41 of village Oshiwara, which admeasures 723 acres. The respondent no.6 is the erstwhile owner of the said lands bearing survey no.41 admeasuring 723 acres. The respondent nos.[7] to 9 own an adjoining portion of survey no.41 admeasuring 32.375 acres, which forms part of the said lands admeasuring 64.75 acres reserved and acquired for SPS.
18. It is the case of the petitioners that the said lands bearing survey no.41 of village Oshiwara admeasuring 723 acres had been held to have been appropriated by the erstwhile grantee, Byramjee Jeejeebhoy (respondent no.6). A portion admeasuring 177 acres 17.1/2 gunthas out of the land bearing survey no.41 admeasuring 723 acres was acquired from the respondent no.6 by the Maharashtra Housing and Area Development Authority (hereinafter referred to as “MHADA”). The respondent no.6 transferred approximately 432 acres of the said lands to Oshiwara Land Development Corporation (petitioner no.1) which included the portion of the land admeasuring 222.[8] acres of which 158.05 acres is reserved for No Development Zone (NDZ) and 64.75 acres for SPS.
19. The respondent no.6 transferred / assigned diverse portions out of the said land bearing survey no.41 Oshiwara admeasuring approximately 116 acres to diverse purchasers / developers of the Laxmi Estate / Industrial Development, the Infinity Mall and PVR Citi Mall. Out of the lands admeasuring 432 acres, appropriately acquired by the petitioner no.1 from the respondent no.6, the petitioners assigned approximately 238 acres to diverse parties and the same are fully developed. It is the case of the petitioners that hundreds of the buildings are already constructed on the said plots admeasuring 238 acres which form part of the Lokhandwalla Complex comprising Apna Ghar layout, Swami Samarth Layout, Yamuna Nagar Layout, Indra Darshan Layout and Millat Nagar Layout.
20. It is the case of the petitioners that out of the said land acquired by the petitioner no.1, there remained a balance area of 222 acres which comprises of two reservations i.e. 158 acres reserved as NDZ and 64.75 acres reserved for SPS which have been acquired but no compensation has been paid. Out of 64.75 acres, the petitioners have retained the rights to 32.375 acres which adjoins the western boundary of survey no.41. The petitioners have transferred the balance land / rights therein comprising 32.375 acres, reserved as SPS as No Development Zone to the respondent nos.[7] to 9.
21. It is the case of the petitioners that the respondent no.3 Municipal Corporation has taken possession and utilized the land admeasuring 64.75 acres, reserved for SPS which are owned by the petitioners to the extent of 32.375 acres.
22. It is the case of the petitioners that in lieu of acquisition of land admeasuring 64.75 acres reserved for SPS, the Municipal Corporation was required to grant Transfer Development Rights (TDR) to the petitioners and the respondent nos.[7] to 9. The Municipal Corporation however, has refused to grant the said TDR. The Writ Petition Nos.172 of 2016 and 1179 of 2018 filed by the petitioners respectively impugning the said decision of the Municipal Corporation are dismissed on 7th April
2022. The orders passed by Mamlatdar on 15th April, 1964 and by the Appellate Authority are already summarized in the earlier paragraphs of this judgment while dealing with the facts in Writ Petition No.739 of
2021. The challenge to the order passed by the State Government on 31st December, 2020 in this petition is by and large on similar grounds raised in Writ Petition No.739 of 2021. On 29th March, 2021, the petitioners filed this writ petition for various reliefs. Brief facts in Writ Petition No.2454 of 2022
23. The petitioners have impugned the order dated 31st December, 2020 / 8th January, 2021 passed under section 257(1) of the Maharashtra Land Revenue Code which are also the subject matters of aforesaid two writ petitions. The petitioner is the Apex society registered under the provisions of the Maharashtra Co-operative Societies Act, 1961 and comprises of 116 primary societies as members. The member societies of the petitioner society are holders of lands on which 238 buildings are constructed. It is the case of the petitioners that several hundreds or lakhs of middle class families reside in flats comprised in such buildings. The petitioner society represents the interest of these members of the primary societies, middle class persons who have put their life savings in acquiring flats in the buildings standing on the various pieces of land, which form part of larger property bearing survey no.41 of village Oshiwara, Taluka Andheri admeasuring 723 acres. The grounds of challenge in this petition are by enlarge identical to the grounds raised in Writ Petition No.739 of 2021. Brief facts in Writ Petition No.2457 of 2022
24. The petitioner is the Apex society registered under the provisions of the Maharashtra Co-operative Societies Act, 1961 and the members of the petitioner society comprise of 8 primary societies. The member societies of the petitioner society are holders of lands, on which 38 buildings have been constructed having approximately 1561 residential and commercial premises accommodating thousands of families in Apna Ghar (West) Layout. Hundreds of middle class families reside in flats comprised in such buildings. The petitioner in this case also has impugned the order dated 31st December, 2020 / 8th January, 2021 passed under section 257 (1) of the Maharashtra Land Revenue Code,
1966. The grounds of challenge in this petition are also by and large identical to the grounds raised in Writ Petition No.739 of 2021. Brief facts in Writ Petition No.2368 of 2022
25. The petitioner in this petition is the Apex society which comprises of 8 primary societies. The member societies of the petitioner society are holders of lands, on which 16 buildings having approximately 930 residential and commercial premises are constructed therein. Hundreds of middle class families reside in flats comprised in such buildings. The grounds of challenge in this petition are also by and large identical to the grounds raised in Writ Petition No.739 of 2021 and respondents have adopted their reply in all the writ petitions. Submissions made by Mr.Vineet Naik, learned senior advocate on behalf of the petitioners in Writ Petition No.739 of 2021
26. It is submitted by the learned senior counsel that the impugned order has been passed by the respondent no.1 after lapse of 55 years thereby granting permission under Section 257(1) of the MLR Code to the respondent no.2 to initiate the Revision Application No.27 of 2019 filed by the respondent no.3 Corporation on merit. He submits that the respondent no.3 Corporation was not even party to the proceedings arising under Section 4(b) of Salsette Estates Act. The permission thus granted to the respondent no.3 by the State Government to initiate revisions application is totally illegal.
27. Learned senior counsel placed reliance on Section 257 of the MLR Code and would submit that revision application having been filed after expiry of 5 years from the date of decision/order of the subordinate officer, such revision application could not have been filed without prior permission of the State Government. It is submitted that the respondent no.3 Corporation filed the said revision application on 20th June 2019 without prior permission from the State Government contemplated under Section 257(1) of the MLR Code. The said provision does not allow the State Government to grant permission post facto i.e. after the date of party already having filed revision application. State Government thus acted totally without jurisdiction while granting permission under Section 257 of the MLR Code.
28. It is submitted by the learned senior counsel that the impugned order passed by the State Government granting such permission is non speaking and unreasoned and is ex facie arbitrary and illegal. It is submitted that on the basis of the order dated 15th April 1964 passed by the Mamlatdar which was upheld by the Additional Collector by an order dated 9th January 1965, the respondent no.6 had dealt with/assigned/transferred/disposed off the entire land bearing Survey No.41 of village Oshiwara admeasuring 723 acres to diverse parties. He submits that the entire area except for the portion admeasuring 222 acres reserved for Non Development Zone (NDZ) and Sewerage Purification System (SPS) had been built upon. The hundreds of residential buildings have already been constructed known as Lokhandwalla complex as also by industrial units comprising the Laxmi Industrial Estate and Infiniti Mall and PVR City Mall.
29. It is submitted by the learned senior counsel that if the impugned order passed by the State Government is not quashed and set aside and if the respondent no.2 is allowed to proceed with the hearing of the revisions application at this stage, it would affect the title of large number of housing societies and lakhs of flat purchasers and industrial unit purchasers. He submits that the respondent no.3 Corporation has challenged the order dated 15th April 1964 passed by the Mamlatdar and the order dated 9th January 1965 passed by the Additional Collector for the entire land bearing Survey No.41 admeasuring 723 acres.
30. It is submitted by the learned senior counsel that it was not the case of the respondent no.3 Corporation in the application for seeking permission from the State Government for filing revision application that the said order dated 15th April 1964 and 9th January 1965 were passed based on false or insufficient information. The said application was filed by the respondent no.3 Corporation on the ground that the Corporation will have to pay huge amount to the petitioner and the respondent no.7 for acquisition of the lands admeasuring 64.75 acres bearing CTS No.739 corresponding to Survey No.41 (part) of village Oshiwara, which have been taken over by the respondent no.3 Corporation and have been utilised for SPS.
31. It is submitted that on such ground, the permission could not have been sought by the respondent no.3 Corporation or in any event, could not have been granted by the State Government to initiate revision application after delay of 55 years. The respondent no.1 had committed a jurisdictional error by granting such permission in favour of the respondent no.3 Corporation to initiate revision application.
32. It is submitted by the learned senior counsel that the impugned permission granted by the State Government under proviso to Section 257(1) of the MLR Code is contrary to the legislative intent which clearly provided that such sanction could be given to initiate a revision application against the order which is more than 5 years old only if (i) the order passed by the subordinate authority had been passed on the basis of false and insufficient information and (ii) the aggrieved party was prevented from filing a revision on that account within the time prescribed. He submits that none of these two conditions were satisfied by the respondent no.3 Corporation for seeking such permission from the State Government. The respondent no.1 did not bother to verify the compliance of these two mandatory conditions and the legislative intent for amending the proviso to Section 257(1) of the MLR Code.
33. It is submitted by the learned senior counsel that even in the proceedings before the Additional Collector, it was not the case of the authority that an enquiry under the provisions of the Salsette Estates Act was on the basis of false or insufficient information or that Municipal Corporation was prevented from filing a revision within the time prescribed on that account.
34. It is submitted by the learned senior counsel that the State Government and the Municipal Corporation being administrative authorities have a duty to act fairly and have to apply their mind dispassionately to a fair analysis of the particular problem and the information available to the authority in analyzing it. The principles of natural justice even to apply on administrative act if they have civil consequences. He submits that expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages.
35. It is submitted that the rules of natural justice are invariably read into the administrative actions involving civil consequences, unless the statute conferring power excludes its application by express language. He submits that the compliance of rules of natural justice has not been excluded under Section 257(1) of the MLR Code or any other provision pressed in service by the State Government while granting permission in favour of the respondent no.3 Corporation. He submits that the entire order passed by the respondent no.1 is in gross violation of principles of natural justice.
36. It is submitted by the learned senior counsel that the revisional power by a superior authority to correct an order by a subordinate officer must be exercised within a reasonable period. Even in cases where entries of revenue records were alleged to be fraudulent and no period of limitation was prescribed, it has been held that revision proceedings initiated after a period of 50 years after making of the alleged fraudulent entries was ex facie unreasonable and totally ignored by the State Government while passing the order granting permission without application of mind.
37. Learned senior counsel invited our attention to Section 257(1) of the MLR Code prior to the date of amendment and submitted that after construing the said provision, the Supreme Court has already held that where no time limit is prescribed under Section 257 of the MLR Code for exercise of power of revision, it must be exercised within a period of 3 years.
38. It is submitted by the learned senior counsel that a jurisdictional fact is a fact which must exist before a Court, tribunal or an authority assumes jurisdiction over a particular matter and is a sine qua non or condition precedent for the exercise of power. No finding is recorded by the State Government while granting permission by the respondent no.3 Corporation that the order passed by the Additional Collector in the year 1965 is passed on the basis of false and insufficient information under Section 257 of the MLR Code. He submits that this Court has ample power under Article 226 of the Constitution of India to decide whether the jurisdictional facts has been rightly decided or not by the authority.
39. Learned senior counsel for the petitioner invited our attention to the plea raised by the State Government in the affidavit-inreply raising an issue of maintainability of this writ petition on the ground that the impugned order is merely an administrative decision. He submits that even if the impugned act on the part of the State Government is an administrative or quasi-judicial order passed in exercise of statutory powers or in exercise of jurisdiction conferred on instrumentalities of State, this Court has ample power of judicial review under Article 226 of the Constitution of India in view of the impugned order passed by the State Government being arbitrary, perverse, unreasonable or in excess of jurisdiction.
40. It is submitted that the onus was on the State Government to prove that valid sanction to initiate a revision application has been granted after being satisfied that a case for sanction has been made out. The impugned order does not indicate that the State Government has recorded such satisfaction in the impugned order that a case of sanction has been made out after considering the material placed before it and after consideration of the circumstances, such permission was granted.
41. Learned senior counsel for the petitioner submits that the issue of maintainability of this petition raised by the respondent no.1 on the ground that there being an alternative remedy has no merit. He submits that the jurisdiction of this Court to entertain a writ petition under Article 226 of the Constitution of India is not affected in spite of alternative statutory remedies in view of the fact that the respondent no.1 and the Municipal Corporation have acted without jurisdiction and have purported to usurp jurisdiction without any legal foundation.
42. Mr. Vineet Naik, learned senior counsel for the petitioner in Writ Petition No.739 of 2021 relied upon the following judgments:-
(i) A.K. Kraipak Vs. Union of India, 1969 (2) SCC 562
(ii) S.L. Kapoor Vs. Jagmohan, (1980) 4 SCC 379 (paragraph 7);
(iii) Vinod Kumar Garg Vs. State (Government of National Capital
(iv) Arun Kumar & Ors. Vs. Union of India & Ors., (2007) 1 SCC
(v) Raza Textiles Ltd. Vs. Income Tax Officer, Rampur (1973) 1
(vi) Sahara India (Firm), Lucknow Vs. Commissioner of Income
(vii) Whirpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors., (1998) 8 SCC 1 (paragraphs 11, 14, 15 20 and 21);
(viii) Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies
(ix) Dev Dutt Vs. Union of India, (2008) 8 SCC 725 (paragraphs
28, 31, 32 & 34);
(x) State of U.P. Vs. Sudhir Kumar Singh & Ors., 2020 SCCOnline
(xi) Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan, (2010) 9
(xii) Muman Habib Nasir Khanji Vs. State of Gujarat & Ors., (1970)
(xii) Dhampur Sugar Mills Ltd. Vs. State of U.P. & Ors., (2007) 8
(xiii) Siemens Ltd. Vs. State of Maharashtra & Ors.,(2006) 12 SCC 33
(ixv) Joint Collector Ranga Reddy District & Anr. Vs.D. Narsingh
(xv) Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram
(xvi) State of Gujarat Vs. Patil Raghav Natha (1969), 2 SCC 187.
(xvii) Mohd.Kavi Mohamad Amin Vs.Fatmabai Ibrahim, (1997) 6
(xviii) Ibrahimpatnam Taluk Vs. K. Suresh Reddy, (2003) 7 SCC 667.
(xix) Collector Vs.Narsing Thakur, (2015) 3 SCC 695.
43. Mr.Zal Andhyarujina, learned senior counsel for the petitioners in Writ Petition No.1023 of 2021 adopted the submissions made by Mr. Naik, learned senior counsel for the petitioners in Writ Petition No.739 of 2021 and made additional submissions. He submits that the entire land which was the subject matter of the revision application filed by the respondent no.3 Corporation admeasuring 723 acres has been fully constructed. He invited our attention to the application filed by the respondent no.3 Corporation for seeking permission of the State Government for filing revision application.
44. Learned senior counsel submits that the respondent no.3 has supplanted the reason for filing such application for seeking permission by the State Government in the affidavit-in-reply filed by the respondent no.3 Corporation. He submits that even otherwise the reasons recorded for the first time in the affidavit-in-reply have been totally untenable and baseless. The stance taken by the State Government is also totally untenable. He submits that no such additional reasons can be supplanted in the affidavit.
45. It is submitted by the learned senior counsel that delay of 55 years in filing revision application or to seek permission under Section Section 257(1) of the MLR Code has not been explained by the respondent no.3 Corporation in the application filed by it nor the State Government took cognizance of gross delay of 55 years for filing application. It is submitted that even if the revision application filed by the respondent no.3 Corporation is allowed to be entertained at this stage after more than 55 years of delay, if any order is passed by the Commissioner, Konkan Division in the said revision application in favour of the respondent no.3 Corporation, large number of the lands already having been disposed off in last more than 55 years would be seriously affected. He relied upon the photographs to show development carried out on various plots placed on record.
46. It is submitted that the State Government could have granted such permission only if the orders passed by the Mamlatdar and the Additional Collector would have been obtained on the basis of false and insufficient reasons. No such allegations are even made by the respondent no.3 Corporation or any such finding rendered by the State Government while granting such permission. The Municipal Corporation was not even party to the original proceedings. Such sanction under Section 257(1) of the MLR Code can be granted only on relevant consideration.
47. Learned senior counsel for the petitioner in Writ Petition No.1023 of 2021 relied upon the following judgments:-
(i) Mohinder Singh Gill & Anr. Vs. The Chief Election
(ii) State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. &
Anr., (2004) 11 SCC 26; (iii) 63 Moons Technologies Ltd. & Ors. Vs. Union of India & Ors.,
48. Mr.Bhanage, learned counsel for the petitioner in Writ Petition No.2454 of 2021 adopted the submissions made by Mr.Vineet Naik, learned senior counsel for the petitioners in Writ Petition No.739 of 2021 and submits that his client is an Apex Society registered under the provisions of Maharashtra Co-operative Societies Act, 1961. The middle class members of primary societies are represented by the petitioners. Large number of persons have acquired flats in the buildings constructed on the lands bearing Survey No.41 of village Oshiwara.
49. It is submitted by the learned counsel that if plea of the respondent no.3 Corporation is accepted at this stage, the consequences of accepting such plea would lead to disaster consequences and would have bearing on the title of the said land and would affect the rights of large number of individual flat purchasers and their family members who have purchased those flats with hard earned income. He submits that there are 116 members societies and 138 buildings comprising of 8077 residential and commercial premises accommodating lacs of families which would be seriously prejudiced if the impugned order passed by the State Government granting permission to initiate revision application is not quashed and set aside. He submits that the land admeasuring area of about 500 acres out of the said land has been developed over the last 50 years.
50. It is submitted by the learned counsel that the Municipal Corporation itself has granted FSI or TDR in respect of the portion of land out of the land bearing Survey No.41 of village Oshiwara by acquiring the same for public purpose such as internal roads, recreation grounds, gardens etc. and in consideration of the same. The respondent no.3 since last 30 years has acted upon as per the order dated 15th April 1964 passed by the Mamlatdar and the order dated 9th January 1965 passed by the Additional Collector and has recognised the respondent no.6 or its successor-in-title as the owners of the said land.
51. It is submitted by the learned counsel that the Municipal Corporation as planning authority has sanctioned plans for carrying out construction of large number of buildings constructed for residential and commercial use and after having been satisfied with the title of the owners of those lands. The rights have been accrued in large number of flats purchasers and commercial units in land more than 55 years and thus cannot be allowed to upset or taken away in this motion or otherwise.
52. Mr.Darshit Jain, learned counsel for the respondent no.6 in Writ Petition Nos.739 of 2021, 1023 of 2021, 2454 of 2022 and 2368 of 2022 supported the case of the petitioner however, prays that the issue of title in respect of the land in question shall be kept open. He tendered written submissions for consideration of this Court raising identical issues which are already raised by the petitioners summarized aforesaid.
53. It is submitted by the learned counsel that the Municipal Corporation had already discussed the matter well in advance with the State Government while making an application for seeking permission under Section 257 (1) of the MLR Code. The entire order passed by the State Government is vitiated on this ground alone. In support of this submission, learned counsel invited our attention to the documents annexed at 124 of the writ petition to show that meeting was already held between the representatives of the State Government and the Municipal Corporation on 25th December 2019. It is submitted by the learned counsel that if the flat owners or the societies are asked to appear before the Commissioner, Konkan Division, at this stage there are not expected to produce document/evidence after more than 55 years.
54. Mr. Damle, learned senior counsel for the Municipal Corporation vehemently submits that the writ petition is not maintainable in view of there being an alternative efficacious remedy available to the petitioners. It is submitted that the State Government while granting permission has not decided on merits of the revision application filed by the respondent no.3 Corporation and the same would be decided by the Commissioner, Konkan Division after hearing all the parties including the sufficiency of reasons for apparent delay, if any, in challenging the impugned order dated 9th January 1965.
55. It is submitted by the learned counsel that the impugned order passed by the State Government on 31st December 2020 is an administrative order and depends on subjective satisfaction of the State Government and thus cannot be subjected to any judicial review before this Court in the petition filed under Article 226 of the Constitution of India. It is submitted by the learned senior counsel that the State Government has ample power to grant permission to initiate revision application even after expiry of 5 years on various grounds.
56. It is submitted that the Municipal Corporation has already made out a case for seeking such permission from the State Government. He submits that prior to 2016, there was no limitation prescribed for seeking permission from the State Government or filing revision application under Section 257 (1) of the MLR Code. He relied upon the Statement of Objects and Reasons relating to the amendment to Section 257(1) of MLR Code empowering the State Government to grant permission beyond the period of 5 years from the date of order sought to be impugned. He submits that the Municipal Corporation had already filed a revision application prior to the date of making an application for seeking such sanction from the State Government. Representation was made by the Municipal Corporation to the Additional Chief Secretary on 10th
57. It is submitted that revisional authority-Commissioner, Konkan Division is lower in hierarchy than the State Government has granted such permission under Section 257(1) of MLR Code. All issues on merits will have to be decided in the said revision application filed by the Municipal Corporation. If the State Government would have given reason in the impugned order while granting permission to the respondent no.3 Corporation, it would have been construed as application of mind on merits by the State Government. He submits that the State Government was not bound to record any reasons while granting permission in favour of the respondent no.3 Corporation to initiate revision application.
58. It is submitted by the learned senior counsel that since the revision application filed by the respondent no.3 Corporation is pending before the revisional authority and the same would be decided on its own merits, the Municipal Corporation does not propose to advance any arguments on merits of the said application in this petition.
59. Mr.Damle, learned senior counsel for the Municipal Corporation tendered a copy of the judgment delivered by this Court in Writ Petition No.172 of 2016 filed by M/s.Oshiwara Land Development Vs. The State of Maharashtra & Ors. (petitioner in Writ Petition No.1023 of 2021) and submits that this Court in the said judgment has clearly held that the Writ Court cannot determine whether the petitioners have any right in the property and they are owners of the properly to grant relief in the form of compensation or TDR as claimed by them. He submits that this Court in the said judgment also considered gross delay on the part of the said petitioner in filing the said writ petition.
60. Ms. Jyoti Chavan, learned A.G.P. for the respondent nos. 1 and 2 submits that the respondent no.2 Divisional Commissioner of Konkan Division had addressed a letter dated 11th October, 2019 to the State Government seeking guidance regarding the Revision Application No. 27 of 2019 filed by the respondent no.3 Corporation under section 257 of the MLR Code. In response to the said letter dated 11th October, 2019, the respondent no.1 had called for the report from the respondent no.2. The respondent no.2 accordingly submitted a report on 6th November, 2020 to the State Government. The State Government after perusing the material before the authority granted sanction/permission/ approval dated 31st December, 2020 for initiating and entertaining the Revision Application No.27 of 2019 under section 257 of the MLR Code.
61. It is submitted by the learned A.G.P. that the Additional Collector in the said order dated 9th January, 1965 has totally overlooked the basic provision of law particularly the said Salsette Estates Act. She submits that the respondent no.3 Corporation is an interested person as the land which is subject matter of the order dated 9th January, 1965 is reserved for planning authority under development. She submits that the original grantee Mr.Banaji was not the owner of the said land but was only estate holder for the purpose of the said Salsette Estates Act. She also made various submissions on the merits of the order passed by the Additional Collector and the Mamlatdar.
62. It is submitted by the learned A.G.P. that the writ petition filed by various petitioners are premature as the Revision Petition No. 27 of 2019 filed by the respondent no.3 is not yet decided and is yet to be heard on merits. The Revisional Authority will consider all the aspects in the matter on its merits.
63. It is submitted by the learned A.G.P. that since the order passed by the State Government granting approval for sanction under section 257(1) of the said MLR Code to initiate the revision application filed by the respondent no.3 Corporation is an administrative approval/ sanction and not the order and quasi-judicial order, the State Government was not required to follow any principles of natural justice by granting personal hearing to the petitioners. She submits that the hearing would be granted by the Revisional Authority while hearing the revision application filed by the respondent no.3 Corporation.
64. It is submitted that in any event, these writ petitions involve various disputed and complex question of facts which cannot be entertained in the writ petition filed under Article 226 of the Constitution of India. She submits that the petitioners were not the parties to the orders dated 9th January, 1965 and 15th April, 1964 and have been impleaded as parties to the Revision Application No. 27 of 2019 on the application made by them and would be heard by the respondent no.2 at the stage of hearing of the said revision application.
65. It is submitted by the learned A.G.P. that while granting sanction/approval under proviso to section 257(1) of the MLR Code, the State Government is required to reach satisfaction on facts before the said sanctioning authority and then either grant or refuse sanction. She submits that since the said order passed by the State Government on 31st December, 2020 granting permission to initiate revision under section 257 is only an administrative act and not a quasi judicial one, the State Government was not required to record any reasons while granting the permission to the Corporation. The State Government while giving such permission to initiate the revision application has prima facie considered the material and all other attending circumstances while granting permission to initiate the revision application.
66. It is submitted that the sanctioning authority is not required to hold any inquiry to satisfy itself and to the truth of facts and material before him. An order of sanction, by itself, does not have the effect of deciding the substantive rights of any kind of the parties as it only initiate process for deciding substantive rights by granting sanction/permission or approval. Full opportunity would be granted to the parties of being heard in the revision application in accordance with the procedure established in law.
67. Learned A.G.P. vehemently urged that the provisions of section 257(1) empowering the authority to grant permission to initiate the revision application is analogous to section 197 of the Code of Criminal Procedure and upon granting such permission only the revisional authority gets jurisdiction to hear the revision application on its own merits. The authority in this case has considered all the material and has applied its mind and was fully satisfied before granting such permission to initiate the revision application by the respondent no.3 Corporation.
68. Learned A.G.P. placed reliance on the judgment of Supreme Court in case of Assistant Commissioner Assessment-II Banglalore & Ors., Vs. Velliappa Textiles Ltd. & Anr., 2003 (11) SCC 405 and in particular paragraphs 5 to 8 in support of her submission that the order passed by the State Government being an administrative order, no personal hearing was required to be rendered by the State Government to the petitioners or any other party affected in view of such permission granted by the State Government.
69. Learned A.G.P. placed reliance on the Statement of Objects and Reasons of the amendment to section 257(1) and more particularly proviso and would submit that the State Government is not required to consider while granting any permission under section 257(1) of the MLR Code whether there is any unexplained delay in filing an application for seeking sanction on the part of the applicant or not. The State Government has considered the merits of the order passed by Mamlatdar while granting such permission in favour of the respondent no.3 Corporation to initiate the said revision application.
70. It is submitted by the learned A.G.P. that the principles laid down by the Court under criminal law in various judgments cited by her interpreting the provisions of section 197 of the Code of Criminal Procedure would apply to the permission granted by the State Government under section 257(1) of the MLR Code. She submits that the State Government has kept all issues raised by the parties on merits open while granting such permission to the respondent no.2 Corporation. It is lastly submitted that whether permission granted by the State Government under section 257(1) to initiate the revision application filed by the respondent no.3 Corporation is illegal or not also has to be considered by the revisional authority and not by this Court.
72. Learned A.G.P. also placed reliance on the following judgments:-
(i) State of Maharashtra Vs.Ishwar Piraji Kalpatri, 1996 (1) SCC
(ii) State of MP Vs. Dr.Krishan Chandra Saksena, 1996 (11) SCC
(iii) Superintendent of Police CBI Vs. Deepak Choudhary & Anr.,
(iv) State of Bihar & Anr. Vs. P. P. Shamrao & Anr., 1992
(v) Pearlberg Vs. Varty, 1972 (2) All E R 6.
(vi) M/s.Oshiwara Land Development Vs. The State of
72. Mr.Vineet Naik, learned senior counsel for the petitioners in Writ Petition No. 739 of 2021 submits that legislative intent to insert amendment by inserting proviso to section 257(1) of the MLR Code that no proceedings under sub-sections (1) or (2) or 257 would be initiated by any officer or subordinate officer after expiry of five years from the date of decision or the order of the subordinate officer without prior permission of the State Government is to provide a complete embargo on filing revision application beyond five years except in exceptional circumstances.
73. Learned senior counsel relied upon paragraph (4) of the Statement of Objects and Reasons in support of this submission and submitted that there has to be objective manifestation on the part of the Government while granting such permission to initiate the revision application after expiry of five years. Such power cannot be subjective but has to be objective. The aggrieved person could be the estate holder or the Government against the order of Mamlatdar.
74. It is submitted that the State Government could not have at the first instance entertain such permission for seeking permission at the behest of the planning authority who was not even a party to the proceedings either before the Mamlatdar or before the Additional Collector. He submits that in case of sanction in a criminal proceedings, there is no lis between the accused and the Government. Since such permission granted by the State Government visits with the civil consequences compliance of the principles of natural justice was mandatory.
75. Mr. Andhyarujina, learned senior counsel for the petitioner in Writ Petition No. 1023 of 2021 in his rejoinder argument submits that the submissions made by the learned A.G.P. are totally contrary to the provisions of section 257(1) and also to the principles of law laid down by the Supreme Court and this Court in catena of decisions. He submits that whether the order passed is an administrative order or quasi-judicial or not principles of natural justice have to be complied with in both the cases. He once again invited our attention to the judgment of Supreme Court in case of Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan (supra) and in particular paragraphs 12, 15 and 16 and submitted that the reasons are mandatory whether the order passed is administrative or quasi-judicial.
76. It is submitted that the criminal sanction granted under section 197 of the Code of Criminal procedure stands on different footing. The accused has no right to participate at the initial stage. The principles of criminal law pressed in service by the learned A.G.P. are totally baseless and contrary to law. The purpose of inserting the proviso to be considered by State Government while granting permission for revision application after expiry of five years is also to protect the Government officers. He submits that such permission which is granted in this case by the State Government could not have been granted after expiry of the 55 years.
77. Ms.Chavan, learned AGP attempted to distinguish the judgments relied upon by the Mr. Andhyarujina, learned senior counsel for the petitioner in Writ Petition No. 1023 of 2021 on facts.
REASONS AND CONCLUSIONS
78. We have heard the learned counsel for the parties at length and have considered their rival submissions. The following questions fell for consideration of this Court in this batch of petitions:-
(i) Whether impugned order dated 31st December 2020 / 8th
2021 is an administrative and if so, whether any personal hearing was required to be given to the affected parties by the State Government before passing impugned order granting permission to initiate the revision application filed by the respondent no.3 Corporation under section 257(1) of the MLR Code ?
(ii) Whether the State Government was required to record any reasons in the impugned order dated 31st December 2020 / 8th 2021 or not ?
(iii) Whether the State Government could have granted permission to initiate the revision application after expiry of more than 55 years from the date of the order of Mamlatdar dated 15th April, 1964 and order dated 9th January, 1965 passed by the Additional Collector mechanically ?
(iv) Whether the revisional authority can consider the issue of delay in filing an application under section 257(1) for seeking permission ?
(v) Whether the writ petitions impugning the order passed by the State
Government granting permission to initiate revision application filed by the respondent no.3 are premature and cannot be entertained on the ground that the merits of the revision application filed by the respondent n.[3] is not yet decided and is yet to be heard by the revisional authority on merit ?
(vi) Whether the provisions of section 257 of the MLR Code empowering the State Government to grant permission to initiate the revision application is analogous to the provisions of section 197 of the Code of Criminal Procedure, 1963 or not ?
79. We shall first decide the issue whether the impugned order dated 31st December 2020 / 8th January 2021 is an administrative or not and if is an administrative order, whether the principles of natural justice i.e. grant of personal hearing or recording of reasons was mandatory ? Amended section 257(1) of the MLR Code reads thus:-
257. Power of State Government and of certain Revenue and Survey Officers to call for and examine records and proceedings of subordinate officers - (1) The State Government and any Revenue or Survey Officer, not inferior in rank to an Assistant or Deputy Collector, or a Superintendent of Land Records, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate Revenue or Survey Officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. Provided that, no such proceedings under this sub-section or sub-section (2) shall be initiated by any revenue or survey officer after expiry of a period of five years from the date of decision or order of the subordinate officer (except with the previous permission of the State Government).
80. On 5th February, 2016, Maharashtra Ordinance No. III of 2016 was replaced by the Maharashtra Act No. XI of 2016. A proviso is inserted under section 257(1) of the MLR Code i.e. “provided that, no such proceedings under this sub-section or sub-section (2) shall be initiated by any revenue or survey officer after expiry of a period of five years from the date of decision or order of the subordinate officer. Further proviso was inserted by Maharashtra Act VI of 2018 in the said section 257(1) with the words “except with the previous permission of the State Government”.
81. A perusal of the Statement of Objects and Reasons in respect of the said proviso inserted by the Maharashtra Act, 2018 indicates that the said proviso is inserted with a view that if any case is decided on the basis of the false and insufficient information and the concerned aggrieved person fail to make an application for revision before expiry of five years from the date of decision or order of the subordinate officer, only with the prior permission of the Government such belated Revision Application can be considered. The said amendment was inserted suitably so as to enable the revision of such cases by the revisional authority only with the previous permission of the Government.
82. It is clear beyond reasonable doubt that earlier provisions prescribing restriction not to file any proceedings under section 257(2) by any revenue or survey officer after expiry of a period of five years from the date of decision or order of the subordinate officer is suitably amended and is though permissible but with prior permission of the State Government. Such permission can be granted only (i) in the event of the case having been decided on the basis of the false or insufficient information and (ii) the concerned aggrieved person fail to make an application for the reasons before expiry of five years from the date of decision or order of the subordinate officer. It is thus clear that the revisional authority who did not have power to decide any revision application under section 257(2) after expiry of a period of five years from the date of decision or order of subordinate officer is conferred with the jurisdiction to decide such revision application even after expiry of five years provided prior permission of the State Government is obtained by any revenue or survey officer.
83. In our view, there is no substance in the submission of the learned senior counsel for the Municipal Corporation or by the learned A.G.P. that the said order passed by the State Government granting such permission in favour of the respondent no.3 Corporation to initiate the revision application can be construed as an administrative order. The said order entails civil consequences to the petitioners and large number of buyers of flat and commercial units who would be aggrieved by granting such permission. The rights which are already accrued in favour of such parties who have been benefited by the orders passed by the authority and who have acted upon such orders for last more than five decades cannot be taken away by granting such ex-parte permission by the State Government. There is no merit in the submission made by the learned A.G.P. for the respondents stating that the said order passed by the State Government granting such permission does not cause any prejudice of any nature whatever to the petitioner. The submission of the learned A.G.P. that the State Government has not decided any issue on merits is mutually destructive with the other pleas raised by her.
84. We shall now consider if the order passed by the State Government granting such permission under section 257(1) is construed as an administrative order, whether the State Government was required to grant any personal hearing before passing such order including recording reasons in the impugned order or not.
85. A perusal of the order passed by the State Government granting such permission in favour of the Municipal Corporation clearly indicates that no personal hearing was rendered to any of the petitioner or the affected party before passing the said order dated 31st December,
2020. The said order further indicates that no reasons are recorded by the State Government while granting such permission in the said impugned order.
86. Supreme Court in case of A.K. Kraipak Vs. Union of India (supra) has held that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasijudicial power, one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. It is held that the concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.
87. Supreme Court in case of Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan (supra) has held that in India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. A quasi-judicial authority must record reasons in support of its conclusions. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
88. It is further held that the reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. The principles laid down by the Supreme Court in case of Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan (supra) apply to the facts of this case. We are respectfully bound by the said principles. There is no substance in the submissions made by the learned senior counsel for the Corporation and by the learned A.G.P. to state that the order passed by the State Government is an administrative order or that the State Government exercising administrative power did not warrant recording any reasons. In our view, even if the order passed by the State Government is considered as an administrative order, State Government is bound to render personal hearing and record reasons in view of the adverse effect on the petitioners and larger number of other parties.
89. Gujarat High Court in case of Muman Habib Nasir Khanji Vs. State of Gujarat & Ors., (supra) after construing the provisions of the Bombay Land Revenue Code and more particularly sections 209 and 211 which are in pari materia with the section under consideration in these petitions has held that since there was no period of limitation for exercising powers of revision by the State Government, the said revisional power under section 211 of the Bombay Land Revenue Code ought to have been exercised within a reasonable time. In that matter, the Gujarat High Court did not consider the period of above one year for exercising power of revision by the State Government as reasonable time.
90. It is not in dispute that the respondent no.3 Corporation was not a party to the order passed by the Mamlatdar or by the Additional Collector. The Mamlatdar had already conducted an enquiry under Section 4 of the Salsette Estates Act on 15th April 1964 in order to ascertain whether the Larger Land were “waste lands” and also whether the respondent no.6 or its predecessors-in-title had “appropriated” the Larger Land before 14th August 1951 or not.
91. It is the case of the petitioner that in the said proceedings before the Mamlatdar, the respondent no.6 produced various documents and also led evidence to show that the larger land was not the “waste lands” and that in any event, the larger land had been appropriated and put to use towards salt pan and other purposes. The Mamlatdar in the said order dated 15th April 1964 recorded a finding that larger land was not “waste lands” within the meaning of Section 4 of the Salsette Estates Act and that in any event, the same was appropriated by the estate holders much prior to 14th August 1951. The said order passed by the Mamlatdar was itself challenged by the State Government by filing an appeal before the Additional Collector. Admittedly, the said appeal filed by the State Government came to be dismissed by the Additional Collector by a wellreasoned order on 9th January 1965. The Additional Collector upheld the decision of the Mamlatdar that the larger land was not “waste lands” and in any event, the same was appropriated by the estate holders much prior to 14th August 1951.
92. During the period between 1965 to 2020, a portion of the larger lands admeasuring approximately 177 acres was purchased by MHADA. The Revenue Records and Property register Cards were mutated which reflected that on account of the order of the Additional Collector, the respondent no.6 and its assignees i.e. the petitioners and the respondent no.7 were the owners/holders of various portions of the larger land. A portion of the larger land admeasuring approximately 222 acres was shown in the Development Plan as a “No Development Zone” and land reserved for SPS. The respondents did not dispute that a portion of the larger land admeasuring approximately 230 acres has been fully developed as a huge township which is popularly known as “Lokhandwala Complex” comprising of five larger lay-outs of housing societies consisting of appropriately 260 buildings and two malls. The Municipal Corporation did not dispute that the permission for carrying out such construction was granted by the Municipal Corporation itself being the Planning Authority.
93. The Municipal Corporation also did not dispute that portions of the larger land was taken over by the Municipal Corporation for construction of D.P. Roads which include the 120 feet wide arterial road, namely K.L.Walawalkar Road as well as various other public reservations such as Recreation Grounds, Garden, Amenities spaces etc. The Municipal Corporation has from time to time during the last 30 years or more granted FSI and/or TDR in respect of such portions of the larger land. On the other hand, it is the case of the Municipal Corporation in the revision application that the Municipal Corporation noticed the order of the Additional Collector on 9th January 1965 only during the course of the writ petition filed by some of the land owners/societies seeking compensation.
94. A perusal of the record indicates that a meeting was convened on 31st May 2019 under the Chairmanship of the Chief Secretary of the Government of Maharashtra in the presence of the Additional Chief Secretary, Revenue and Forest Department as well as the Municipal Commissioner of the respondent no.3 Corporation and the Collector. It appears that in the said meeting, the Municipal Corporation took a decision to initiate a revision application under Section 257 of the MLR Code for seeking revision of the order passed by the Additional Collector. It appears that based on the said decision taken in the said meeting held on 31st May 2019 within a short span of less than three weeks, the Municipal Corporation filed a revision application before the Commissioner, Konkan Division without seeking prior permission from the State Government under Section 257(1) of the MLR Code.
95. In the said revision application, the petitioners were not even impleaded as a party at the first instance. The State Government was represented as the Chief Secretary of the Government of Maharashtra and was present in the said meeting held on 31st May 2019 in which the respondent no.3 Corporation took a decision to initiate revision application against the Additional Collector. The State Government granted permission under Section 257 (1) of the MLR Code in favour of the respondent no.3 Corporation without application of mind on 31st May
2019. It is not in dispute that the State Government has granted permission in favour of the respondent no.3 Corporation to initiate the revision application.
96. The respondent no.3 Corporation prayed for quashing and setting aside the order passed by the Additional Collector and for fresh enquiry to be ordered under Section 4 of the Salsette Estates Act at this stage after more than 55 years from the order passed by the Additional Collector. The petitioners were joined as party respondent only pursuant to the order dated 7th January 2020 passed by the Divisional Commissioner, Konkan Division on an application filed by the petitioners in August 2019 in the said revision application. Though by representation dated 26th November 2020 made by the Municipal Corporation to the State of Maharashtra requesting for a hearing in connection with the request application made by the Municipal Corporation, no hearing was granted by the State of Maharashtra before passing an order on 31st December 2020/8th January 2021.
97. Supreme Court in case of Arun Kumar & Ors. Vs. Union of India & Ors. (supra) has held that a "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority who assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a Court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the Court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses.
98. In our view, since it is neither pleaded by the respondent no.3 in the application for seeking permission under Section 257(1) that the order was passed by the Additional Collector on the basis of false or insufficient information, the State Government did not have necessary jurisdictional fact before it for exercising powers under Section 257(1) of the MLR Code.
99. Supreme Court in case of Raza Textiles Ltd. Vs. Income Tax Officer, Rampur (supra) has held that the question “whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in application for a writ of certiorari.” Since the respondent no.3 Corporation has failed to even prima facie establish that the order passed by the Additional Collector was passed on the basis of false or insufficient information, the State Government could not have exercised power to grant permission to initiate the revision application under Section 257(1) of the MLR Code.
100. Supreme Court in case of Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Central-I & Anr. (supra) has held that the requirement of previous approval of the Chief Commissioner or the Commissioner in terms of the said provision being an inbuilt protection against any arbitrary or unjust exercise of power by the Assessing Officer, casts a very heavy duty on the said high ranking authority to see to it that the requirement of the previous approval, envisaged in the Section is not turned into an empty ritual. Such provisions cast a very heavy duty on an authority to see to it that the perquisites are not turned into an empty ritual and the authority must have before him the material on the basis whereof an opinion must be formed to exercise the power. Moreover such approval to exercise the power must reflect application of mind to the facts of the case. The State Government while granting permission to the respondent no.3 Corporation to initiate the revision application reflects total nonapplication of mind to the facts of the case.
101. Supreme Court in case of Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan (supra) has held that the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. Further, reasons have virtually become an indispensable component of the decision-making process, whether it be judicial, quasi-judicial and even administrative, as reasons facilitate the process of judicial review by superior courts.
102. There is no substance in the submission made by the learned counsel for the respondents that the Commissioner, Konkan Division would decide all the issues after hearing the petitioners including the issue as to whether the State Government has rightly granted permission to the respondent no.3 Corporation to initiate the said revision application. The decision to grant such permission in favour of the respondent no.3 was granted in the meeting held between the State Government, the respondent no.3 Corporation and various Government Officials. The State Government in the impugned order has already expressed its view that the said impugned order was passed after considering the documents submitted and the details therein, the approval was granted in favour of the respondent no.1 as per sub-section (1) of Section 257 of the MLR Code.
103. In our view, the respondent no.2 Commissioner, Konkan Division has no power to decide whether the permission granted by the State Government for initiating revision application itself is without jurisdiction or is valid in law or not. The Commissioner, Konkan Division is not an Appellate Authority against the order passed by the State Government under Section 257 (1) of the MLR Code granting approval in favour of the respondent no.3 Corporation to initiate the revision application. This submission made by the learned AGP for the State is totally rejected as the same stood baseless and untenable in law. This Court only can decide while exercising its powers Article 226 of the Constitution of India in these writ petitions as to whether the permission granted by the State Government under Section 257(1) of the MLR Code is granted in accordance with law and the same is without jurisdiction or not.
104. In our view, since the order passed by the State Government granting such permission after expiry of 55 years in favour of the respondent no.3 Corporation to initiate the revision application entails civil consequences and would affect large numbers of flat/unit holders in whose favour rights are already vested, the State Government could not have passed such order mechanically and that also without application of mind and without following the principles of natural justice.
105. Learned counsel for the petitioners has rightly relied upon the judgment of the Supreme Court in case of Siemens Ltd. Vs. State of Maharashtra & Ors. (supra) in support of the submission that since the respondent nos.[1] to 3 have already made up their mind and had already taken a decision, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. In this case, the State Government in the impugned order has already stated to have considered the documents while granting permission, the Commissioner, Konkan Division who has already consulted the Government is not expected to pass any order contrary to the view already taken by the State Government.
106. Supreme Court in case of Joint Collector Ranga Reddy District & Anr. Vs.D. Narsingh Rao & Ors. (supra) has held that the revisional power by a superior authority to correct an order by a subordinate officer must be exercised within a reasonable period. It is held that even in cases where entries in the revenue records were alleged to be fraudulent and no period of limitation was prescribed, the revision proceedings initiated after a period of 50 years after making of the alleged fraudulent entries, was unreasonable.
107. Supreme Court in case of State of Gujarat Vs. Patil Raghav Natha (supra) has held a period of one year to be too late. Supreme Court in case of Mohd.Kavi Mohamad Amin Vs. Fatmabai Ibrahim (supra) has held a period of nine months to be beyond reasonable time.
108. Supreme Court in case of Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors. (supra) has held that if a statue does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time because “the law does not expect a settled thing to be unsettled after a long lapse of time and further held that the exercise of revisional power after a lapse of 17 years was held to be “plainly an abuse of process.”
109. Supreme Court in case of Ibrahimpatnam Taluk Vs. K. Suresh Reddy (supra) has held that if revisional power “could be exercised even after decades, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity.”
110. Supreme Court in case of Collector Vs. Narsing Thakur (supra) has held that delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud.
111. Prior to amendment to Section 257(1) of the MLR Code, the Supreme Court in case of Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors. (supra) has held that where no time is prescribed under Section 257(1) of MLR Code, the reasonable period within which power of revision may be exercised would be three years. It is not in dispute that a proviso is added to the amended Section 257(1) of the MLR Code.
112. We have perused the Statement of Objects and Reasons attached to Ordinance No.28 of 2017 and also considered the proviso to amended Section 257 (1) of the MLR Code. A conjoint reading of the said Statement of Objects and Reasons and proviso to amended Section 257(1) of the MLR Code clearly indicates that the power to grant sanction to enable revision against an order of any subordinate revenue or survey officer after expiry of a period of 5 years from the date of decision or order of such subordinate officer can be exercised only if the case must have been decided by the subordinate officer on the basis of false and insufficient information. The application filed by the respondent no.3 who was not admittedly a party to the proceedings before the Mamlatdar or Additional Collector and applied for permission to initiate the revision application basically on the ground that huge amount of public money is required to be paid in acquiring the lands i.e. 64.75 acres used for the SPS.
113. If the State Government would have applied its mind and would have considered the Statement of Objects and Reasons and the purpose and legislative intent for inserting proviso to amended Section 257(1) of the MLR Code, such permission would not have been granted since the impugned order was not passed on the basis of false and insufficient information and not because the Corporation would require to pay huge money for acquiring the lands.
114. In the facts of this case, in last 55 years, large number of buildings have already been constructed on the plots which were the subject matter of the proceedings under the Salsette Estates Act before the Mamlatdar at the first instance and then the before the Additional Collector. The flat purchasers have purchased large number of tenements and have settled down in the properties acquired by them. The Municipal Corporation has itself proceeded on the premise that the respondent no.6 as well as the other owners including the petitioners had acquired the rights in those properties and have thus granted TDR and other benefits for substantial part of such land acquired for public purposes.
115. In our view, if the impugned order passed by the State Government granting permission in favour of the respondent no.3 Corporation is not set aside, it would lead to a serious anomalous position leading to uncertainty and complications seriously affecting the accrued rights of parties and that too over immovable properties. In our view, the grant of permission by the State Government mechanically amounts to gross abuse of process of law and the Municipal Corporation has attempted to unsettle the settled rights of the petitioners and large number of flat/unit purchasers which is not permissible in law.
116. A perusal of the record indicates that the Commissioner, Konkan Division had already sought guidance from the State Government on the revision application filed by the respondent no.3 Corporation. In our view, Mr.Naik and Mr.Andhyarujina, learned senior counsel for the petitioners are right in their submission that in view of the discussion already held between the State Government and the Municipal Corporation prior to the date of the State Government granting permission to initiate the revision application and in view of the Commissioner, Konkan Division having sought guidance from the State Government, the Commissioner, Konkan Division is not expected to pass any order on its own merit. The State Government while passing the impugned order had called for the report from the Commissioner, Konkan Division.
117. In our view, there is no merit in the submission made by the learned AGP that the writ petitions filed by the petitioners are premature on the ground that the State Government has already granted permission to the respondent no.3 Corporation to initiate the revision application under Section 257(1) of MLR Code. If the State Government would not have granted such permission in favour of the Municipal Corporation to initiate the revision application though filed after expiry of 55 years and that also without explaining gross delay of 55 years, question of Commissioner, Konkan Division entertaining and hearing of the revision application on its own merits would not arise.
118. The petitioners are not required to wait till the revision application is decided on its own merits by the Commissioner, Konkan Division in view of the fact that the permission granted by the State Government under Section 257 in the facts of this case after expiry of 55 years from the date of the order having been passed by the Additional Collector itself is illegal. Be that as it may, order of granting permission by the State Government after 55 years itself can be impugned independently. This Court cannot dismiss the writ petition filed by the petitioners impugning such perverse order passed by the State Government on the ground of the same being allegedly premature.
119. There is no substance in the submission made by the learned AGP and Mr.Damle, learned senior counsel for the Corporation that hearing of the petitioners can be rendered only at the stage of hearing of the revision application and not at the stage of considering the application for seeking permission. In our view, since the order that could be passed by the State Government entails civil consequences, even if the personal hearing is not contemplated specifically under proviso to Section 257(1), such hearing is inbuilt in the said provision and cannot be refused.
120. If the arguments of the learned AGP and Mr.Damle, learned senior counsel for the Corporation are accepted, hearing could be rendered only at the stage of hearing of the revision application, in every matter before the Court of law seeking condonation of delay, hearing would not be required to be rendered by the Court to the respondents in whose favour rights are accrued because of the gross delay on the part of the appellant in filing the proceedings. The application for condonation of delay or for permission in this case after gross delay of 55 years or otherwise cannot be decided without granting personal hearing to the parties in whose favour the order sought to be impugned in the revision application have vested rights. Personal hearing at the stage of hearing the revision application by the respondent no.2 and by the State Government while considering application for permission to initiate revision application are two different stages and cannot be mixed up.
121. There is no merit in the submission of the learned AGP that there are any disputed or complicated question of facts. There is no dispute that the respondent no.3 was not a party to the proceedings before the Additional Collector. It is also not in dispute that the application for permission sought by the respondent no.3 for filing revision application from the State Government was initiated after 55 years from the date of the order passed by the Additional Collector. In our view, neither there are any disputed nor complicated question of facts arising while considering the application for granting permission to initiate the revision application by the respondent no.3 against the order passed by the Additional Collector. The submission made by the learned AGP is totally devoid of merit.
122. There is no merit in the submission of the learned AGP that the State Government while granting permission to the respondent no.3 under proviso to Section 257(1) of the MLR Code has not decided any rights of the petitioners or the other unit holders. The rights which are already accrued and vested in favour of the petitioners and large number of unit holders in last 55 years cannot be reopened by granting such permission at such belated stage. Be that as it may, conditions required to be satisfied for granting such permission by the State Government under proviso to Section 257(1) of the MLR Code are not at all satisfied in the facts of this case.
123. This submission of the learned AGP is also contrary to the submission made by the learned AGP that the State Government has fully satisfied the conditions required to be complied with in this case while granting permission in favour of the Municipal Corporation. The submission of learned AGP that the State Government is not required to consider any unexplained delay on the part of the respondent no.3 Corporation in seeking permission to initiate revision application after expiry of 55 years is ex facie contrary to proviso to Section 257(1) of the MLR Code and deserves to be rejected at the threshold. The State Government was bound to consider under the said proviso to Section 257(1) of the MLR Code the conditions set out in the proviso for granting such permission including whether the gross delay was explained satisfactorily or not before granting such permission.
124. If the arguments of the learned AGP are accepted, the State Government would be conferred with power to grant permission in all applications filed without complying with the mandatory conditions and without justifying the gross delay beyond the period of 5 years mechanically. The arguments advanced by the learned AGP are ex facie contrary to the legislative intent and the Statement of Objects and Reasons for inserting proviso to amended Section 257(1) of the MLR Code.
125. It is not in dispute that the State Government itself had filed an appeal against the order passed by the Mamlatdar before the Additional Collector. The said appeal filed by the State Government admittedly came to be rejected by the Additional Collector. The State Government thereafter did not challenge the said order passed by the Additional Collector in last 55 years. The State Government itself not having filed an appeal before the Additional Collector could not have granted permission in favour of the Municipal Corporation who was not a party respondent to the proceedings before the Mamlatdar or the Additional Collector by backdoor entry.
126. It is not in dispute that the Municipal Corporation had already initiated such revision application before the Commissioner, Konkan Division without obtaining prior permission from the State Government in view of there being delay of more than 5 years from the date of the impugned order. The State Government has no power to grant such permission post facto. The said revision application filed by the respondent no.3 thus was not maintainable itself on this ground. There is no merit in the submission of the learned senior counsel that by granting permission in favour of the respondent no.3 Corporation to initiate the revision application, title of the petitioners would not be affected. Various rights already accrued in favour of the petitioner and large number of unit holders are sought to be reopened by the respondent no.3 Corporation after expiry of 55 years.
127. A perusal of the affidavit-in-reply filed by the respondent no.3 indicates that the respondent no.3 has sought to supplant the reasons for filing revision application after expiry of 55 years. The reasons cannot be supplanted in the affidavit-in-reply by the State Government. The reasons have to be incorporated in the order itself. Similarly, the reasons cannot be furnished by the State Government in its affidavit-in-reply to justify the order on additional grounds.
128. The Municipal Corporation did not dispute before this Court that in last 55 years, the Municipal Corporation itself has sanctioned plans in respect of large number of buildings which are the subject matter of the revision application filed by the Municipal Corporation. The Municipal Corporation has never raised any objection while sanctioning the plans submitted by the petitioners and other parties. On the basis of all these plans sanctioned by the Municipal Corporation for last 55 years, large number of buildings have been already constructed and have already been occupied by the flat purchasers or unit holders. In our view, even otherwise on this ground itself, the Municipal Corporation could not have filed an application for revision of the order passed by the Additional Collector.
129. It is an admitted position that the Municipal Corporation also had discussed the matter with the State Government in advance before even making an application for seeking permission to initiate revision application. Such prior consultation between the State Government and the party making an application for permission in accordance with law has vitiated the entire proceedings and resultantly, the order passed by the State Government. There is no merit in the submission made by Mr.Damle, learned senior counsel for the Corporation that if the State Government would have given reasons while granting permission to the Municipal Corporation to initiate the revision application, this Court would have construed the application of mind on the part of the State Government on merits of revision application filed by the Municipal Corporation.
130. In our view, while considering the order passed by the State Government granting such permission after expiry of 55 years in favour of the Municipal Corporation, the State Government was required to give reason as to whether the application for seeking such permission by the respondent no.3 Corporation was in compliance with the conditions set out in the proviso to Section 257(1) of the MLR Code including the question as to whether the respondent no.3 Corporation had explained the gross delay of 55 years in filing revision application or not. There is also no merit in the submission of the learned senior counsel for the Municipal Corporation that the reasons are not contemplated under Section 257(1) while granting permission to the applicant for initiating revision application after a period of 5 years.
131. The powers conferred upon the State Government to grant such permission to initiate the revision application beyond the period of 5 years is for a specific purpose specified in the Statement of Objects and Reasons and is not an empty formality. The Courts are required to reject the application for condonation of delay in filing the substantive proceedings. If delay is not satisfactorily explained, the powers conferred upon the State Government to grant permission to file proceedings and in this case the revision application are not wider than the powers of the Court to consider validity of the permission overlooking unexplained delay of 55 years.
132. Supreme Court in case of Assistant Commissioner Assessment-II Bangluru Vs.Velliappa Textiles Ltd. & Anr. (supra) while construing Sections 197 and 190 (1) (b) & (c) of the Code of Criminal Procedure, 1973 has held that the grant of sanction is purely an administrative act and affording of opportunity of hearing to the accused is not contemplated at that stage. The principles of law laid down by the Supreme Court in case of Assistant Commissioner Assessment-II Bangluru Vs. Velliappa Textiles Ltd. & Anr. (supra) would not apply to the facts of this case.
133. Powers of the State Government under proviso to Section 257(1) of the MLR Code to grant permission to initiate such proceedings under sub-section (2) of Section 257 by any revenue or survey officer after expiry of a period of five years from the date of decision or order of the subordinate officer are not in pari materia with the powers of the Government conferred under Section 197 of the Code of Criminal Procedure, 1973. The judgment of the Supreme Court in case of the Assistant Commissioner Assessment-II Bangluru (supra) pressed in service by the learned AGP is thus clearly distinguishable on facts of this case and would not advance the case of the State Government. The judgments of the Supreme Court in cases of State of Maharashtra Vs.Ishwar Priaji Kalpatri (supra), State of MP Vs. Dr.Krishna Chandra Saksena (supra), Superintendent of Police CBI Vs. Deepak Choudhary & Anr.(supra) and State of Bihar & Anr. Vs. P.P. Shamrao & Anr. (supra) would not apply to the facts of this case for the same reasons and would not advance the case of the State Government.
134. In so far as the judgment of this Court in case of M/s.Oshiwara Land Development Vs. The State of Maharashtra & Ors. (supra) relied upon by the learned AGP for the State and Mr.Damle, learned senior counsel for the Municipal Corporation is concerned, the petitioners in that petition had prayed for writ of mandamus against the respondent and/or any other concerned authority to complete the process of acquisition and to grant monetary compensation to the petitioners under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and for other reliefs.
135. This Court in the said judgment held that there are claims and counter claims. The dispute relates to title of the property and thus in exercise of powers under Article 226 of the Constitution of India, it is not possible to determine the ownership over the property. The claim of the petitioners in that case was based on disputed questions of fact. There was inordinate delay in claiming right in respect to the property. In that matter, the respondent/Corporation had placed on record several documents which ran counter to the claim of the petitioners. In the facts of that case, this Court held that the Writ Court cannot go into these aspects and determine whether the petitioners had right in the property and they were the owners of the property while considering the relief in the form of compensation or TDR as claimed by them. In the facts before this Court in the said judgment and the prayers sought by the petitioners therein were totally different. In our view, the said judgment does not even apply remotedly to the facts of this case. Reliance placed by the learned AGP for the State and the learned senior counsel for the Municipal Corporation is totally misplaced.
136. In our view, the impugned order passed by the State Government granting permission in favour of the respondent no.3 Corporation to initiate the revision application is totally perverse, without application of mind and is contrary to proviso to Section 257(1) of the MLR Code. The impugned order is also in violation of principles of natural justice, arbitrary and capricious.
137. We accordingly pass the following order:-
(i) The impugned order dated 31st December 2020/8th
(ii) Writ Petition Nos.739 of 2021 and 1023 of 2021 are allowed in terms of prayer clauses (A) and (B).
(iii) Writ Petition Nos.2454 of 2022, 2368 of 2022 and 2457 of
(iv) Application filed by the respondent no.3 Corporation for seeking permission to initiate the revision application under Section 257(1) of the MLR Code, 1966 is dismissed.
(v) Revision Application No.27 of 2019 filed on 20th June 2019 by the respondent no.3 Corporation is dismissed.
(vi) It is made clear that this Court has not decided the dispute relating to the title, if any, in respect of the property inter se between the petitioners and the respondent no.6 in Writ Petition Nos.739/2021, 1023/2021, 2454/2022 and 2368/2022.
(vii) Rule is made absolute in aforesaid terms. There shall be no order as to costs.
(viii) Parties to act on the authenticated copy of this order.
M.G. SEWLIKAR, J. R.D. DHANUKA, J.