Ramesh R. Pandey v. Municipal Corporation of Greater Mumbai

(viii) It is pertinent to note that the proposed toilet blocks to be constructed on the suit open space will block the frontage of the Plaintiffs in respect of the suit structures.

(ix) It is also pertinent to note that the said toilet blocks will not only cause nuisance to the Plaintiffs but the light and air of the Plaintiffs to the suit structures will be completely blocked.

3.7. Out of the aforesaid grounds the primary grounds are ground Nos. (iv), (v), (vii), (viii) and (ix). 6 of 21

4. The trial court considered the draft Notice of Motion filed by the Plaintiffs seeking temporary injunction to restrain the Corporation from carrying out any construction in the suit open space and passed a reasoned and speaking order on 10.02.2021 dismissing the said Motion. The present Appeal from Order assails the order dated 10.02.2021 passed by the trial court.

5. Mr. Pradeep Thorat, learned counsel appearing for the Plaintiffs has at the outset drawn my attention to paragraph Nos. 13 and 14 of the plaint and contended that the Plaintiffs are in settled possession of the suit open space i.e. the suit open space is in the exclusive possession of the Plaintiffs since last several years and by the current act of construction of the toilet block, the Plaintiffs are sought to be dispossessed by the Corporation without following due process of law; Plaintiff Nos. 1 and 2 are paying the Non Agricultural tax in respect of the suit structures as well as the suit open space since the year 1971. He submitted that at page No. 68 of the paper book the N.A. order dated 27.01.2005 passed by the Additional District Dy. Collector, MSDA, Bandra (E), Mumbai states that the name of Plaintiff No.1 i.e. Ramesh R. Pandey and Plaintiff No.2 - Diwakar R. Thakur show that they are in unauthorized use and occupation of the commercial structures admeasuring 212 sq. mtr. and 272 sq.mtr. and open land admeasuring 244 sq.mtr. and 314 sq.mtr. for which N.A. 7 of 21 assessment has been levied and on the basis of which they claim to be the owner of the suit open land. He submitted that once the Plaintiffs show that they are in settled possession of the suit property and if the Municipal Corporation admits so in its affidavit-in-reply, injunction should have been granted by the trial court. He has drawn my attention to paragraph No. 9 of the affidavit-in-reply filed by the Corporation to contend that there is categorical statement made by the Corporation stating that the Plaintiffs are paying N.A. assessment for the suit open space and are in possession of the suit open space and are using the same for commercial purpose. On the basis of this statement, Mr. Thorat has vehemently contended that the Corporation has admitted possession of the Plaintiffs and thus cannot dispossess the Plaintiffs from the suit open space.

6. The next ground agitated by Mr. Thorat is that the Corporation has not followed the due process of law and has not taken possession of the suit open space from the Plaintiffs as is required under the law. He stated that the public notice dated 20.01.2020 seeks construction of the toilet block at Galli No.14 whereas the same is now been constructed in the open space adjoining the entrance gate to Galli No.14. Thus the original site has been further shifted towards the South and is being constructed at a different location. He submitted that the exact place where the toilet block is required to be 8 of 21 constructed is completely uncertain and is not borne out by the record. He has referred to and relied upon the photographs which show the entrance to Galli No.14 and the exact location towards the south where the toilet block construction is undertaken by the Corporation to buttress his submission.

7. PER CONTRA, Ms. Madhuri More, learned counsel appearing for the Corporation has drawn my attention to the affidavitin-reply dated 27.01.2021 filed by Mr. Amit Y. Koyande, Sub Engineer, Maintenance Department, R/N Ward of the Defendant - Corporation before the trial court and has refuted the case of the Plaintiffs. She submitted that the N.A. order dated 26.01.2005 relied upon by the Plaintiffs does not entitle the Plaintiffs to claim ownership of the suit structures as well as the suit open space as described by the Plaintiffs in the plaint. Plaintiff Nos. 1 and 2 along with two other parties have been described as encroachers and have been directed to pay N.A. taxes till the structures shall be removed by the Municipality or the State Government and most importantly paragraph Nos. 2 and 3 of the said order the N.A. order confirm that the said order does not confirm any right, title or interest in the land to the encroacher i.e. Plaintiff Nos. 1 and 2. It is further clarified in the order that payment of N.A. assessment does not mean any regularization u/s 47(b) of the Maharashra Land Revenue Code, 1966 (for short "M.L.R.C."). She 9 of 21 submitted that the bare reading of the N.A. order cannot entitle the Plaintiffs to claim ownership and title and thus the Plaintiffs' case fails in the first instance on title. She submitted that the suit structures and the suit open space are not precisely and properly defined in the suit plaint and thus in the absence of specific details pertaining to the suit open space, the suit open space in relation to each Plaintiffs and the specific area of the toilet block which is being constructed, the suit filed by the Plaintiffs is not maintainable.

7.1. In respect of following due process of law, Ms. More has submitted that para Nos.7, 11, 12 and 13 of the affidavit-in-reply filed by the Corporation before the trial court lists the procedure adopted by the Corporation and there is no infirmity in construction of the toilet block in the suit open space. She submitted that it is pertinent to note that the Plaintiffs have never objected to the public notice and more specifically the requisite distance of 2 mtrs. has been maintained from the Plaintiff's structures as required by law. She submitted that before passing the impugned order the trial court by its interim order dated 22.01.2021 appointed a Court Commissioner to visit the site and to ascertain the distance between the toilet block and the Plaintiffs' suit structures as well as the width of the area i.e. open space in front of the suit structures. The Court Commissioner submitted his report dated 22.01.2021 stating that there is a distance of 5 ft. 2 inches, 5 ft. 10 of 21 4 inches and 6 ft. 4 inches in so far as Plaintiff No.1's structure is concerned and a distance of 6.[1] inches in so far as Plaintiff No.2's structure is concerned. She submitted construction of the public toilet block does not disturb the suit structures of the Plaintiffs; suit structures are used as godowns; there is ample space behind the suit structures from where the actual loading and unloading of the goods take place; the front open space is not used for any loading and unloading of the goods; the front open space belongs to the ownership of Mr. Dyanesh Kamlakar Samant being the owner as recorded in the record of rights and revenue record and who has not objected to the construction of the toilet block on a portion of survey No. 221 (pt) towards the southern side of the entrance gate to Galli No.14; the objection relating to the precise location of the construction of the toilet block is stated to be rejected as the same does not justify any countenance whatsoever since the toilet block is constructed at the mouth of Galli No.14 which is for the benefit of 2250 slum dwellers of Ganpat Patil Nagar; the public toilet block will have 60 toilet seats as the presently available 15 toilet seats are found to be inadequate; the public toilet block is being constructed under the Swacch Bharat Mission of the Ministry of Urban Development for the benefit of the beneficiaries i.e. slum dwellers; Plaintiffs are not the owners of the open space and merely on the basis of the N.A. order cannot claim to be owners of the open space; Plaintiffs are ranked encroachers on the 11 of 21 open space as stated in the N.A. order and thus cannot be treated as owners.

8. Mr. Thorat in his rejoinder submissions submitted that the contents of para No. 12 of the impugned order be considered. He submitted that the Plaintiffs have made a statement before the trial court that they are ready and willing to construct the public toilet block at their own expenses towards the rear side of the suit structures. This contention of the Plaintiffs has been rejected by the trial court in paragraph No. 12 of the impugned order. He submitted that this Court be pleased to reconsider the same in the light of the submissions advanced on behalf of the Plaintiffs.

9. Submissions made by the parties are on pleaded lines. Perused the material on record and pleadings.

10. At the outset Plaintiffs have pitched their case to the extent that on the basis of the N.A. order dated 26.01.2005 they are the owners of the suit structures as well as the suit open space. On page No. 74 of the paper book there is a rough sketch annexed by the Plaintiffs. This rough sketch shows that the suit structures occupied by Plaintiff Nos. 1 to 3 is next to Galli No. 14, the open space in front of the suit structures and the Link Road abuts the open space. Roughly there is a demarcation which shows that the construction of the toilet block in front of the structures belonging to Plaintiff No.2 and Plaintiff 12 of 21 No.3; there is an open space between the entrance of Galli No. 14 and the starting point of the toilet block towards the Northern side. Similarly, there is substantial open space left out from the end point of the toilet block towards the southern side. The toilet block abuts and adjoins the Link Road. Plaintiffs have claimed title to the structures (which is not relevant here) and the open space. A bare reading of the N.A. order in fact goes against the Plaintiffs' case of entitlement. The N.A. order though reads that the suit open space is in possession of the Plaintiffs and being used by the Plaintiffs, it is on their request that N.A. assessment has been levied as they are using the said structures and open space. It cannot be construed that the Plaintiffs are the owners of the suit structures as well as the open space by any stretch of imagination or by application of any principle of law. The N.A. order states that "the construction is without prior permission of Collector u/s 44 of the Maharashtra Land Revenue Code, 1966. The land is therefore liable to pay penalty u/s 45 of M.L.R.C. 1966. It further states that encroacher should pay N.A. Assessment at the above mentioned rate till the N.A. rates are revised or the structure shall be removed by Municipality, Demolition squad of State Govt. or any other Govt. body whichever is earlier. It is further stated that this order does not confirm any right, title or interest in the land to the encroacher. It is clarified that payment of N.A. Assessment and fine does not mean it is regularized u/s 47(b) of M.L.R.C., 1966." 13 of 21

11. For the sake of convenience the relevant portion of the N.A. order is extracted as below: "OFFICE OF THE ADDITIONAL DISTRICT DY. COLLECTOR, MUMBAI SUBURBAN DISTRICT ADMINISTRATIVE BUILDING, 9TH FLOOR, GOVT. COLONY, BANDRA (E), MUMBAI - 400 051 No. ADC/LND/E/2426A Date: 27/01/2005 Read:-

1. Application from Shri. Louis Itur Vaity & Others 3 dated 26/5/2004

2. This office Surveyor's report dated 29-05-2004

3. The Revenue and Forest Department Govt. Circular No. NAA/1090/PK-16/ L-2 dated 17-7-1992

4. Powers u/s 45 of M.L.R.C. - 1966 delegated by Collr. BSD vide order No. AOM/122 dated 12/5/72 ORDER.................................. The Construction is without prior permission of Collector u/s 44 of the Maharashtra Land Revenue Code, 1966. The land is therefore liable to pay penalty u/s 45 of M.L.R.C. 1966. Show cause notice in this case was issued to Occupant / Applicant and the hearing was fixed on 6-10-2004 @ 3.00 p.m. The applicant was present and argued that they are ready to pay N.A. Tax but their financial position is not sound, therefore requested to waive the penalty..................

1. That the Encroacher should pay N.A. Assessment at the above mentioned rate till the N.A. Rates are revised or the structure shall be removed by Municipality Demolition Squad of State Govt. or any other Govt. Body whichever is earlier.

2. This Orders does not confirm any right, title or interest in the land to the Encroacher.

3. It is clarified that payment of N.A. Assessment and find does not mean it is regularized u/s 47(b) of M.L.R.C., 1966

4. Occupant should pay N.A. Assessment to Tahsildar (N.A.) Borivali I/II. Additional District Deputy Collector Mumbai Suburban District"

12. From the above it is clearly discernible that the N.A. order does not give any entitlement of right or title to the plaintiffs in the suit open space. Needless to state that the open space belongs to 14 of 21 one Dyanesh Kamlakar Samant as per the revenue record. Therefore it is beyond any reasonable doubt that the Plaintiffs are ranked encroachers in respect of the suit structures as well as the suit open space. The N.A. assessment order itself states that an application was made by Plaintiff Nos. 1 and 2 along with two others seeking to levy assessment in respect of the structures and the open space used by both for commercial purpose. The provision of section 45 of the MLRC Act clearly envisage that it pertains to penalty for so using the land without permission of the Collector. The contents of the N.A. order levied penalty to the extent of ten times of the fine of the annual commercial assessment for the use of the structures and the open space. To construe that the N.A. order puts the Plaintiffs in settled possession and confers title on the Plaintiffs in respect of the open space is a fallacy and an erroneous proposition of law adopted by the Plaintiffs in their submissions. Such a position cannot be countenanced by the Court which requires to look at documentary evidence of title or existence of the names of the Plaintiffs in the primary revenue record pertaining to the suit land. In absence of any documentary evidence of title, the Plaintiffs' case of settled position and having right, title and interest conferred on the Plaintiffs by the N.A. order dated 26.01.2005 stands rejected. 15 of 21

13. The Plaintiffs' reliance on the averments made by the Corporation in paragraph No. 9 of having accepted the possession of the Plaintiffs in respect of the open land cannot be construed literally as it appears. The possession of the Plaintiffs is derivative from the N.A. order dated 26.01.2005 which is alluded to herein above. Thus, no right, title or interest is created in the Plaintiffs in respect of suit open land.

14. The submissions relating to following the due process of law in construction of the public toilet block as advanced by the Plaintiffs also stand to be rejected in limine. The submissions that the original toilet block was to be constructed at Galli No. 14 and the same is now being constructed at the mouth of Galli No. 14 and not near the entrance gate of Galli No. 14 cannot be countenanced in as much as the Municipal Corporation being the planning authority, a feasible and suitable place for the toilet block whether it is at Galli No.14 or near the entrance of Galli No.14 will be taken into account keeping in mind the utility and use of the said public toilet block for the benefit of the beneficiaries / users and more specifically the slum dwellers. The construction of the public toilet block will be beneficial to the slum dwellers of Ganpat Patil Nagar residing at Galli No.14. At present there are only 15 public toilet seats for approximate 2250 users at Galli No. 14 and the construction of the present public toilet block 16 of 21 having 60 toilet seats would be certainly beneficial. Thus the submission of the Plaintiffs relating to change in the precise location of the construction of the public toilet block stands rejected.

15. The Plaintiffs have referred to and relied upon the photographs pertaining to the construction of the public toilet block. A mere glance at the photographs clearly show that as alleged by the Plaintiffs the toilet block is not covering the entire open space which is between the Plaintiff's structure and the Link road. Despite the toilet block being constructed there is adequate open space which is left open. The Plaintiffs have relied upon the decision in the case of Rame Gowda (Dead) by LRS. vs. M. Varadappa Naidu(Dead) by LRS. and Anr.[1] to agitate that under the provisions of the Specific Relief Act, if an occupant is in settled possession, he cannot be dispossessed without recourse to law. In the said case the Plaintiffs and the Defendant both claimed to be the owners of two adjoining pieces of land and the real dispute between them was about the demarcation of the common boundary of the two pieces of land. In that context the land in possession of the Plaintiffs was referred to as the suit land and the Plaintiffs raised construction over the said suit land which was objected by the Defendant. In the trial court the Plaintiffs filed a suit for title and possession whereas in the present case the Plaintiffs have 1 2004(1)SCC 769 17 of 21 conveniently not filed any suit for title primarily because the plaintiffs are aware that their suit for title cannot be based upon the N.A. order. There is no other documentary piece or evidence with the Plaintiffs to prove their title. In the above context, the learned counsel has placed reliance on para Nos.[8] and 9 of the above judgement which are extracted as under: "8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon 18 of 21 his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p.527, para 12): i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

16. From the reading of the aforesaid paragraphs of the judgement and applying the facts to the present case what distinguishes the present case is that the N.A. order dated 27.01.2005 speaks for itself; the relevant contents of the N.A. order have been reproduced in paragraph No. 10 herein above. The same are clear and unambiguous. The N.A. order does not confer any right, title or interest on the Plaintiffs. The Plaintiffs are ranked encroachers as certified by the N.A. order. The Plaintiffs have been levied N.A. tax and penalty for using the land which does not belong to them. The 19 of 21 Plaintiffs are aware about the same. Therefore on the basis of the N.A. order the Plaintiffs cannot construe themselves to be in settled position. In the various judgements which are referred to in the aforesaid case decided by the Supreme Court, it is seen that the original suit filed by the parties was for declaration of title and injunction to protect their possession. In the present case the Plaintiffs have not filed any suit for declaration of title and have merely filed a suit for injunction. Therefore, the facts of the case referred to and relied upon by the Plaintiffs are clearly distinguishable. The Plaintiffs have also referred to and relied upon the judgement dated 19.09.2011 passed in L.C.Suit No. 1304 of 2010 and 1303 of 2010. L.C. Suit NO. 1303 of 2010 was filed by Plaintiff No.2 whereas L.C. Suit No. 1304 of 2020 was filed by Plaintiff No.1 to challenge the notices u/s 351 issued by the Corporation for demolition of their unauthorised structures only. The Plaintiffs led evidence in the trial court and produced several documents pertaining to the existence of the censused structures since 1976 and thus sought protection of the structures from the action of the Corporation. The trial court in the above two suits held that the Plaintiffs were entitled to perpetual injunction in respect of the suit structures only. The suit property i.e. suit structures is described in para No.3 of the above judgement. There is no whisper about the suit open space in the above judgement so as to enable the Plaintiffs to claim any right, title or entitlement in respect of the same. 20 of 21

17. In view of the above discussions and findings the Appeal from Order (ST.) No. 4532 of 2021 fails and is dismissed with no order as to costs.

18. In view of the dismissal of the Appeal from Order (ST.) No. 4532 of 2021, Interim Application (St.) No. 4533 of 2021 does not survive and is disposed of as dismissed. [ MILIND N. JADHAV, J. ]