BANSRAJIDEVI wd/o BHUVAL SINGH RAMNIRANJAN SINGH vs BYRAMJEE JEEJEEBHOY PVT. LTD.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1199

IN THE HIGH COURT OF BOMBAY
(B.H. Marlapalle, J.)
BANSRAJIDEVI wd/o BHUVAL SINGH RAMNIRANJAN SINGH and others – Petitioners

V.
M/S BYRAMJEE JEEJEEBHOY PVT. LTD. and others - Respondents
Advocates appeared
For petitioners: E. P. Bharucha, Senior Counsel with K.K. Vyas and P.K. Vyas
For respondent No.2: A. A. Kumbhakoni, Associate Advocate General with Ms. V. Mhaispurkar
For MHADA : G. W. Mattos

Headnote:Maharashtra Land Revenue Code (61 of 1966) - Sections 149, 150, 2(12) and 2(23) and Maharashtra Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971, Rules 10 and 13 - For entering one’s name in the Record of Rights, the applicant has to be a holder, occupant, owner, mortgagee or tenant - Such a right is to be established by showing that his possession of land is lawful or he had come in possession by legal conveyance. - To exercise the right under Section 148 read with Sections 149 and 150 of the Maharashtra Land Revenue Code for entering one’s name in the Record of Rights, the applicant has to be a holder, occupant, owner, mortgagee or tenant. Such a right is also available to a person acquiring interest in the property by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise. Applicant claimed that he was in occupation of 27 acres of land and he was holder of the same right from 1950 and, therefore, his claim was required to be entered in the Other Rights column. Merely a holder or occupant does not meet the requirements of law for exercising such a right. Applicant has to prove that his possession or occupation over the suit land was lawful or he had come in possession by a legal conveyance/title or any other instrument like receipt etc. to which the respondent No. 1 was a party or at its instance. Merely saying that none of the officers of the respondent No. 1 or its agents or representatives objected at any time to his possession does not make his possession lawful, even if it is accepted that he was in possession. He has to prove his title of possession by pointing out that it was lawful and if such requirement could not be proved, the revenue authorities below were right in calling applicant as the encroacher on the private land who was entitled to exercise such a right. Recording the claimant ’s name in the other rights column merely on the basis of possession is nothing short of perversity and unless the officer concerned was satisfied that the said possession was lawful such an entry could not have been done irrespective of whether the original owners appeared and contested the plea and more so when the officer was performing a statutory duty.

ORAL JUDGMENT : - This petition filed under Article 227 of the Constitution impugns the order passed by the Deputy Collector (Appeals) on 12 6 -1986 and duly confirmed by the Additional Divisional Commissioner, Bombay Division in Revision Application No. 72 of 1986 filed under section 257 of the MLR Code, on 19th February, 1988. The long chequered history of this petition requires to be noted as under:

2. The present respondent No; 1 holds some lands in Oshiwara, a part of the area of Bombay Municipal Corporation and about 190 acres of the said companys land was sought to be acquired by the State Government as per the notification issued under section 4 of the Land Acquisition Act, 1894 on 22nd April, 1960. There was some typographical error in this notification and, therefore, corrected notification was issued on 27 -6 -1960. Even in this notification the land sought to be acquired from Survey No. 41 (Part) was not properly described and, therefore, another notification was issued on 11 -6 -1966, though the notification under section 6 of the Land Acquisition Act was published on 15th January, 1966 and consequent to this amendment another notification under section 6 came to be issued on 11 -6 -1966. After hearing the parties the Land Acquisition Officer passed his award on 28th May, 1971 and it is evident from the said award that the respondent No.1 - company had appeared before the Land Acquisition Officer and claimed compensation at the rate of Rs. 5 to Rs. 20/ - per square yard and the last such representation was dated 2412 -1970. The present petitioners predecessor Bhuvalsingh also claimed compensation at the rate of Rs. 20/ - per square yard in respect of 27 acres of land from 3 Survey No. 41(Part) by way of loss of agricultural income inasmuch as he claimed that he was growing grass for the last six years and in addition he claimed compensation for the structures at the rate of Rs. 5,00,000/ -. As per him there were 17 structures on the land in Survey No. 41 (Part).

3. While these proceedings under the Land Acquisition Act were pending for passing the award, Shri Bhuvalsingh filed an application with the Talathi, Taluka Andheri requesting him to transfer 28 acres of land from Survey No. 41 Oshiwara village in his name as a holder and he claimed that he was in session of the said land since 1950. There is no dispute that one acre land m Survey No. 41 was given to Bhuvalsingh by the respondent No. 1 -Company lease and Bhuvalsingh further claimed that remaining 27 acres of land was cultivated by him for growing grass and the respondent No.1 at no point of time objected to this activity and that is how he was holding the said 27 acres of land well right from 1950 and the respondent No.1 did not object to the same at time nor did it take any steps for seeking possession of the said land. The Tehsildar, Andheri by his order dated 30 -4 -1971 declined to entertain his claim and he was of the view that the claim was in respect of the ownership by adverse session which issue was required to be decided by the competent Court. Another order was passed on 4 -11 -1972 to the same effect and Bhuvalsingh, before, filed an appeal before the SDO, Bombay Suburban District and this appeal was dismissed on 18 -3 -1973. Revision application filed before the vision Commissioner, Bombay was decided on 13 -4 -1976 and Bhuvalsinghs application was remanded for fresh hearing by the Deputy Collector (appeals), remand the Tahsildar, Andheri by his order dated 10 -10 -1981 allowed his application in terms of the following order:

"As Shri Bhuvalsingh Ramniranjansingh is in actual possession of part of suit land admeasuring 28 acres from S. No. 41 of Oshivara his name should be entered in other rights column for 27 acres and for one acre for leased land in kul and khand column of 7/12 extracts of S. No. 41 of Oshivara from the date of his application."

Emboldened by this order Bhuvalsingh approached this Court in Writ petit

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