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2013 Supreme(Bom) 2222
High Court of Judicature at Bombay
A.S. OKA & MRIDULA BHATKAR, JJ.
Wilfred Anthony Jose Pereira & Others
Versus
The State of Maharashtra (Revenue & Forest Department) & Others
Letters Patent Appeal Nos.272 of 2012 & 60 of 2012 In Writ Petition Nos. 9449 of 2009 & 3909 of 2012 With Civil Application Nos. 451 of 2012 & 101 of 2013
Decided On : 29-10-2013
For the Appellants:S.U. Kamdar, Senior Advocate with Naval Agarwal, Ms. Ferzana Behramkadin, Ms. Shivani Khanna i/b FZB & Associates, Sandeep Parikh, P. Chabuswar i/b S. Mahomedbhai & Co., Advocates.
For the Respondents:R1, R2 & R3, Ravi Kadam, Spl. Counsel a/w Abhinandan B. Vagyani, Additional Government Pleader, R4 to R7, D.S. Patil, Advocate, R11 to R13, S.G. Aney, Senior Advocate with Sanjay Jain, Kalpesh Mehta & Vasim Shaikh i/b Pravin Mehta & Mithi & Co., Advocates, R10, R11, P.K. Dhakephlakar, Senior Advocate with G.S. Godbole i/b Dushyant Purekar, R4 & R5, Ms. Ferzana Behramkamdin & Ms. Shivani Khanna i/b FZB & Associates, Advocates.
Headnote:Letters Patent (Bombay) - Clause 15 - Maintainability of Letters Patent Appeal. - Letters Patent appeal filed against orders of quasi-judicial authorities passed under Maharashtra L.R. Code is maintainable. - In the case of M/s. Advani Oerlikon Ltd. v. Machindra Govind Makasare and others, 2011 (3) All MR 564, the orders impugned were passed by quasi-judicial authorities under the Maharashtra Land Revenue Code, 1966. Considering the grounds urged in both the writ petitions, there was a justification for invocation of Article 226 of the Constitution of India. Therefore, in view of what is held in paragraph 20 of the said decision of the Full Bench, the preliminary objection raised regarding the maintainability of the appeal deserves to be discarded.
Maharashtra Land Revenue Code, 1966 - Section 38 - Resumption of Government land. - Breach of lease conditions by lessee, renders action of State Government of resuming land, just and proper. - There was a breach committed by the original lessee of sub-clause (g) of Clause 2 of the Indenture of Lease. All the three authorities held that the said land was required to be resumed from the Legal Representatives of the original lessee. The concurrent findings recorded by the three authorities have been confirmed by the Single Judge. The original lessee has done something which was clearly prohibited under the original lease. Therefore, the finding of the Single Judge on this aspect will have to be confirmed. Therefore, the order of resumption of the said land cannot be faulted with.
Maharashtra Land Revenue Code, 1966 - Section 51 and 96 - Maharashtra Land Revenue Rules, 1971, Rules 17 and 26 - Resumption of Government land. - Where Government resumed land on ground of breach of conditions of lease by lessee therefore resumed land to be dealt with as per Rules, 1971. - There is no dispute between the parties that in view of the provisions of the Government of India Act, 1935 and the Constitution of India, the said land vested in the State Government. The said Code contains provisions for grant of leases. Section 38 confers power on the Collector to a lease under a grant or a contract in any un-alienated unoccupied land to any person subject to rules made by the State Government in this behalf. In the present case, under the orders of the Collector and the State Government, a lease has been granted to the said society. This is not a case where unauthorised sale was regularised. In exercise of powers under Section 38, the Maharashtra Land Revenue (Disposal of the Government Lands) Rules, 1971 (for short, “Land Disposal Rules“) have been brought into force which govern the grant of Government land. Rules 26 and 27 of the said Rules provide for grant of building sites. Sub-rule (1) of Rule 26 provides for disposal of the building sites by public auction to the highest bidder unless for reasons to be recorded in writing, the Collector holds that in any particular case, there is a good reason for granting the lands without auction. In the present case, none of the three authorities recorded any such reasons.
Even assuming that the Government Resolution dated 21st November, 1957 was invoked for grant of lease to the said society, on enactment of the said Code and the Land Disposal Rules, the said land could not have been disposed of on the basis of the said Government Resolution as the disposal of the lands vesting in the State will be governed by the Land Disposal Rules brought on the statute book in the year 1971. After the Land Disposal Rules were brought into force in the year 1971, the disposal of a land vesting in the State cannot be made contrary to the Land Disposal Rules by relying upon earlier Government Resolution. The Government Resolution dated 21st November, 1957 was not at all applicable in view of the enactment of the Land Disposal Rules in exercise of power under Section 38 of the said Code.
Section 51 provides that an encroachment on a Government land can be regularised by granting the same to the encroacher on the terms and conditions as provided therein. The proviso to Section 51 specifically lays down that no land should be granted as provided in Section 51 unless the Collector gives notice of his intention to do so and considers the objections or suggestions received before passing an order of grant of land. All the three authorities have concurrently held that possession of the land was unauthorisedly parted with by the original lessee and the possession of the said society is illegal. Going by the provisions of the said Code, either a grant could have been made to the society by following the Land Disposal Rules or illegal possession of the society could have been regularised under Section 51 of the said Code. Section 51 mandates that before granting the land by regularisation, a public notice has to be published. Rule 26 of the Land Disposal Rules applicable to building sites contains a provision for inviting offers by way of auction unless for reasons recorded the requirement of auction is dispensed with. Looking at the matter from any angle, the action of directing that the society shall be directly placed in the shoes of the original lessee in respect of the entire said land is completely illegal and contrary to the said Code and Rules framed therein.
Maharashtra Land Revenue (Disposal of Government Land) Rules, 1971 - Rules 26 and 17. - See Maharashtra Land Revenue Code, 1966, Sections 96 and 51.
A.S. Oka, J.
1. Both these appeals can be disposed of by a common judgment. We must note here that though the submissions were concluded before this Bench on 30th July, 2013, which was a specially constituted Bench, written arguments were submitted to this Court by the Appellants in Letters Patent Appeal No.272 of 2012 on 5th August, 2013 and after compiling the written arguments, files were forwarded to us on 19th August, 2013.
2. Both the appeals take exception to the judgment and order dated 5th November, 2012 passed by the learned Single Judge in Writ Petition No.3909 of 2012 and Writ Petition No.9449 of 2009. Both the Petitions were dismissed.
3. The property in dispute is plot No.228 admeasuring 1858 sq. yards equivalent to 1551.80 sq. metres bearing Survey No.228, City Survey Nos. B/736, B/737, B/738, B/739 and B/743 (for short, 'the said land') situated at Bandra, Taluka Andheri in Mumbai Suburban District. On 17th December, 1906, the Secretary of State for India in Council executed Indenture of Lease (for short, “the original lease”) in respect of the said land. The lessees under the said original lease were Mrs. E. J. Menesse and five others. The lease was initially for a period of 50 years from 1st January, 1901 with a covenant for renewal for a period of 21 years with same covenants including renewal.
4. Dr. Vincent Pereira, by a Deed of Assignment dated 14th May, 1934 acquired the said land together with buildings thereon from the lessees under the original lease. Dr. Vincent Pereira stepped into the shoes of the original lessees. On 15th January, 1975, there was a registered renewed lease deed executed in respect of the said land by and between the Hon'ble Governor of Maharashtra and Dr. Vincent Pereira who was the lessee under the said lease. The said lease provided that the term thereof will be of 30 years commencing from 1st January, 1951. The lease also provided that except for the term of 30 years and the rent reserved, the lease was on same terms and conditions as incorporated in the original lease dated 17th December, 1906. It provided that all the terms and conditions of the original lease stand incorporated in the said lease deed dated 15th January, 1975. The said Dr. Vincent Pereira died on 2nd May, 1981.
5. Prior to his death, on 27th June, 1978, Dr. Vincent Pereira (for short, 'the original lessee') executed a development agreement. One Prakash Shankar Wagh and one Mandar Mohan Bhagwat were described therein as licensees, who were carrying on business in the name and style as M/s. Kalpak Builders and Contractors (for short, 'M/s. Kalpak'). Under the said agreement, M/s. Kalpak was allowed to enter the said land for demolition of the existing bungalow, out house and a garage and for constructing two multi-storied buildings on the sites marked as A and B on the plan annexed to the said agreement. The licence granted to M/s. Kalpak under the said agreement was to expire on 27th June, 1981. Simultaneously with the execution of the said agreement, the original lessee executed a General Power of Attorney dated 27th June, 1978 in favour of the said Prakash Wagh under which various powers were conferred on the said Mr. Prakash Wagh such as preparation and submission of the building plans for sanction. M/s. Kalpak constructed a seven storied building which was named as Vinaper Castle. (for short, 'the said building'). M/s. Vinaper Castle Co-operative Housing Society Ltd. (for short, “the said society”) was formed by the flat purchasers of the flats in the said building. On 18th October, 1980, Occupation Certificate was granted in respect of second to seventh floors of the said building. It is stated that the plinth area of the said building is 191.20 sq. yards.
6. On 23rd August, 1986, the Additional Collector, Mumbai Suburban District issued a show-cause notice in the name of the original lessee alleging that he had transferred the said land to a co-operative housing society and a multi-storied bui
