Allowed

Smt. Fergi Farookh Nargoliwalla and Anr. v. the State of Maharashtra, through Dept of Revenue and Ors.

Bombay HC18 Sept 2014WP/151/2014

Case brief

AI extract

What is this about?

Writ petition challenging orders declining mutation entries. Court held Tribunal lacked jurisdiction under Section 315 Schedule J for Chapter XIV cases. Ordered remand to Collector under Section 300 to summon parties and decide summary entry perpendency of civil suit does not bar summary decision unless court determines title.

What did the court decide?

Impugned orders of the Superintendent of Land Records and the Land Revenue Tribunal set aside; matter remanded to Collector to decide mutation entry summarily under Section 300 of the Code within six

Smt. Fergi Farookh Nargoliwalla and Anr. Vs the State of… — Property and Title | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 151 OF 2014

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Smt. Fergi Farookh Nargoliwalla & Anr. ..Petitioners versus The State of Maharashtra & Ors. ..Respondents

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Mr. V. A. Thorat – Senior Advocate with Mr. Bipin J. Joshi for Petitioners. Ms Aparna D. Vhatkar – AGP for Respondent. Nos. 1 and 2. Mr. Darius K. Soonawalla – Respondent No.3 in person and Constituted Attorney of Respondent No. 4.

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CORAM : M. S. SONAK, J.

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Date of Reserving the Judgment : 22 August 2014 Date of Pronouncing the Judgment : 18 September 2014

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JUDGMENT :-

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1] Rule, with consent, Rule is made returnable forthwith.

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2] This petition is directed against the order dated 29 September 2011 made by the City Survey Officer, the Superintendent of Land Records (respondent no. 2) and order dated 19 October 2013 made by the Maharashtra Land Revenue Tribunal declining to enter the petitioners' name in the Land Survey Record in respect of the property admeasuring 987 square yards, consisting of 3 storeyed structure known as TAHER BUILDING situated at Jalbai Street (Panwala Street), Grant Road, Girgaon Division, Mumbai, bearing Cadastral Survey No. 1148, Building No. 11/19,

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Municipal Assessment No. D/2062 (23-28), Girgaon Division, Charni Road, Mumbai 400 004 (hereinafter referred to as 'the said property').

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3] The petitioners claim to have purchased the said property by means of documents duly registered with the Registrar of Assurances, Mumbai from the erstwhile owners. Thereafter, the petitioners applied to respondent no. 2 for entering their name in the Survey Record of Rights / Property Card, based upon the registered documents. However, respondent nos. 3 and 4 who claim to be the legal heirs of the actual owners of the said property lodged their objections to any mutation entries in the Record of Rights / Property Card. Respondent nos. 3 and 4 pointed out that they have already instituted a Civil Suit in respect of the said property and therefore the petitioners application for mutation ought not to be entertained.

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4] Respondent no. 2 by an order dated 28 September 2011 rejected the petitioners' application for mutation in the Record of Rights / Property Card by observing that such mutation can be effected only after the petitioners obtain from the appropriate judicial authority a succession certificate.

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5] As against respondent no.2's order dated 28 September 2011, the

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petitioners preferred a revision to the Maharashtra Land Revenue Tribunal under the Maharashtra Land Revenue Code, 1966 ('Code'). By order dated 11 October 2013, the Maharashtra Land Revenue Tribunal, by relying upon the provisions contained in Section 316 of the Code, has dismissed the revision application.

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6] Mr. V. A. Thorat, learned Senior Advocate for the petitioner basically made two submissions in support of this petition: (A) That even though entries in revenue records do not determine the rights and title of the parties, Mumbai Municipal Corporation, which has granted permission for development of the said property, has insisted upon mutation in the name of the petitioners. In the absence of mutation, the petitioners are unable to develop the said property, which affects not merely the petitioners, but also the residents therein, who have been deprived of suitable housing facility for a number of years.

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(B) The learned Single Judge of this Court by a judgment and order dated 30 April 2014 in Notice of Motion No. 3433 of 2011 in Suit No. 1245 of 2012, instituted by respondent nos. 3 and 4, has declined interim relief to the said respondents by clearly observing that upon examination of title documents, no prima facie case has been made out to doubt the title of the petitioners or their predecessors in title, to the said property. Such prima facie determination by this Court, ought to bind the revenue

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authorities.

7] Mr. Darius K. Soonawalla, who appeared in person, for himself as well as as power of attorney for respondent no. 4, made the following submissions:

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(A) That he has taken out proceedings for contempt as well as for action against the petitioners for having committed perjury and that the said applications be decided prior to entertainment of the present petition. (B) That the provisions contained in Section 316 of the Code are very clear, in as much as they bar the jurisdiction of the Maharashtra Land Revenue Tribunal to determine any matter which is subjudice in a court of law. Therefore the impugned order dated 19 October 2013 made by the Tribunal by relying upon the provisions contained in Section 316 of the Code, suffers from no infirmity whatsoever.

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(C) That judgment and order dated 30 April 2014 made by the learned Single Judge of this Court is appealed against and therefore no reliance could be placed thereon.

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(D) Finally, Mr. Soonawalla attempted to make submissions to demonstrate in what manner respondent nos. 3 and 4 were the rightful title holders in respect of the said property and the persons / entities, from whom the petitioners claim title, had no right or title to the said property.

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8] On perusal of the applications made by respondent nos. 3 and 4 for initiation of contempt or perjury proceedings, in my judgment, there is no necessity to defer the hearing in this petition. This is because, the allegations of fraud, perjury, manipulation of documents raised by respondent nos. 3 and 4 in their affidavit in reply, which have been adopted in the applications seeking contempt and action for perjury, are the same as the ones raised in the substantive civil suit filed by respondent nos. 3 and 4 in relation to the said property. In order to establish such allegations one way or the other, there would be necessity of detailed evidence, which opportunity can conveniently be availed by respondent nos. 3 and 4 in such substantive civil suit. Besides, in the present petition, this Court is not called upon to decide rival contentions with regard to title to the said property. In such circumstances, there is absolutely no necessity to defer the disposal of the present petition, until such applications taken out by respondent nos. 3 and 4 are decided. The applications can be conveniently disposed of with liberty to respondent nos.3 and 4 to raise the contentions therein, in the civil suit already instituted by them or such other proceedings as they may be advised. The applications are accordingly disposed of, with liberty as aforesaid.

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9] In the present case, there is no dispute that the said property is located in Bombay. Therefore the special provisions for land revenue,

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which apply in the City of Bombay, as contained in Chapter XIV of the Code are applicable. This Chapter comprises Sections 260 to 307. Section 260 provides that the provisions of this Chapter shall extend to the City of Bombay only. Section 278 empowers the State Government to order a survey and to appoint a Superintendent for the purpose. Section 269 of the Code provides that whenever the title to any land, house or other immovable property, subject to the payment of land revenue to the State Government is transferred or assigned, the person transferring or assigning the same and the person to whom the same is transferred or assigned, shall respectively cause notice of such transfer or assignment to

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be given to the Collector within 20 days after the execution of instrument of transfer or assignment or after its registration if it be registered. Section 300 of the Code, which is relevant, reads thus :

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“300. Proceeding in case of disputes as to entry or transfer (1) Whenever any dispute or question arises with respect to the making or completion of any entry or transfer in the records of the Collector, of or relating to any land, house or other immovable property subject to the payment of land revenue to the State Government, the Collector shall summon all the parties interested in such entry or transfer, and shall call for such evidence, and examine such witnesses, as he shall consider necessary, and shall thereupon decide summarily what entry shall be made in his records in respect of such land, house, or other immovable property. (2) If at any time a certified copy shall be produced to the Collector of an order of a competent court determining the title to any such land, house or other immovable property, the Collector shall amend his records in conformity with such order.”

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10] In the present case, the petitioners did apply to the Superintendent

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of Land Records (respondent no.2) for entering their name in the land

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records / property card. Such application was rejected by the Superintendent of Land Records on 28 September 2011. As against such rejection, the petitioners preferred a revision to the Maharashtra Land Revenue Tribunal, which was dismissed by order dated 19 October 2013.

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11] Section 315(1) of the Code, which deals with the jurisdiction of the Tribunal, reads thus :

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“315. Jurisdiction of Tribunal

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(1) Notwithstanding anything contained in Chapter XIII of this Code or any other law for time being in force, but subject to the provisions of this section, in cases arising under the provisions of the enactments specified in the Schedule J,-

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(a) an appeal shall lie to the Tribunal from original orders or decisions made or passed by the Collector; and (b) an application for revision shall lie to the Tribunal from an order or decision made or passed by the Collector in appeal, against an order or decision made or passed by any subordinate officer or authority.”

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12] From the aforesaid it is clear that the jurisdiction of the Tribunal is

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restricted to cases arising under the provisions of the enactments specified in Schedule J appended to the Code. In so far as the Maharashtra Land Revenue Code, 1966 is concerned, Schedule J makes reference to orders made under Sections 24, 27, 59 (except clause (b) thereof) 65 and 66 thereof. Clearly therefore Section 315 of the Code makes no reference to cases arising under Chapter XIV of the Code, which contains sections 260 to 307, as noted earlier. In passing the impugned order dated 19 October 2013, the Maharashtra Land Revenue Tribunal placed reliance upon the provisions contained in Section 316(1)

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of the Code which provides that the Tribunal shall have no jurisdiction in any matter, which is subjudice in the courts of law. Respondent Nos. 3 and 4 also placed great emphasis upon the provisions contained in Section 316(1), by pointing out that since their Suit No. 1245 of 2012 was pending in this Court, the Tribunal lacked jurisdiction to entertain the petitioners' revision petition.

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13] Upon consideration of the scheme of Section 315 read with Schedule J, it is clear that no appeal would lie to the Maharashtra Land Revenue Tribunal, particularly as cases arising under Chapter XIV of the Code cannot be the cases arising under the provisions of the enactments specified in Schedule J. In case of Subherdevi Chandradeo Varma vs. Indramani Gangaprasad Varma 2003(3) Mh.L.J. 386 , the learned Single Judge of this Court, upon consideration of the scheme of the Code has held that the Maharashtra Land Revenue Tribunal did not have and does not have jurisdiction to entertain, hear and decide appeals arising out of entries made by Superintendent of Land Records in respect of properties situate in the City of Bombay (now Mumbai). Therefore, it is clear that the petitioners' revision before the Maharashtra Land Revenue Tribunal was incompetent and consequently the order dated 19 October 2013 made by the Tribunal is also an order without jurisdiction.

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14] It is settled position in law that entries in Records of Rights are only

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for the purposes of recovery of revenue and therefore such entries cannot be taken as transfer of title of the holder of the property in favour of a person in whose favour the entries are made. Further, the revenue authorities are not to enter into disputed issues of title to immovable property and decide the same. No doubt, in terms of the Code, entries in revenue records raise certain presumptions. However, such presumptions are rebuttable. In the present case however, the petitioners contend that the development of the said property is stalled on account of the condition imposed by the Municipal Corporation that no commencement certificate shall be issued until the fresh property card in the name of the petitioners is not submitted.

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15] If the above position is taken into consideration, then it is necessary that the parties exhaust the procedure prescribed under Section 300 of the Code. As noted earlier, Section 269 provides for notice of transfer of title to lands to be served upon the Collector. Section 300 provides that whenever any dispute or question arises with respect to making or completion of any entry or transfer in the records of the Collector, then the Collector shall summon all the parties interested in such entry or transfer, and shall call for such evidence, and examine such witnesses as he shall consider necessary, and thereupon decide summarily of the entry shall be

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made in his records in respect of such immovable property. Sub Section 2 of Section 300 provides that if at any time a certified copy shall be produced to the Collector of an order of a competent court determining title to any such immovable property, the Collector shall amend his records in conformity with the order.

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16] Accordingly, it is appropriate that the petitioner's application for mutation in the entry is considered by the Collector or for that matter the authority to whom powers of Collector may have been delegated under Section 300 of the Code. Accordingly, the authority shall be bound to summon all the parties interested in such entry or transfer, call for evidence and examine such witnesses as he shall consider necessary and thereupon summarily decide what entry shall be made in records in respect of the said property. From the perusal of the order dated 28 September 2011 made by the Superintendent of Land Records, it does not appear that the provisions contained in Section 300 of the Code were complied with. Besides there is no clarity as to whether the Superintendent of the Land Records is the appropriate authority in matters of exercise of powers under Section 300 of the Code, in the sense, whether powers of Collector have been delegated by the Superintendent of Land Records.

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17] In such circumstances, it would be in the interests of justice, if the

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matter is remanded to the Collector or such other authority, who is authorised to exercise powers under Section 300 of the Code, to hear the parties and decide in a summary manner what entry is to be made in the revenue records pertaining to the said property. In doing so, it is needless to state that the concerned authority shall comply with the provisions contained in Section 300 of the Code. Although, this is no occasion to express any final opinion in this regard, at least prima facie it does not appear that the authority under Section 300 of the Code can simply refuse to decide applications seeking mutation on the grounds of pendency of a civil suit. Sub section 2 of Section 300 provides that if at any time a certified copy shall be produced to the Collector of an order of a competent court determining title to the said immovable property, the Collector shall amend his records in conformity with such an order. This means that until a competent court determines title to any immovable property, there is no jurisdictional bar to the Collector deciding summarily what entry shall be made in his records in respect of immovable property. Of course this is subject to the rider that the Collector or for that matter any other revenue authority is not empowered to decide issues of title and consequently any decision that the Collector or a revenue authority may take in the matter of mutation or change in entries, shall never be a decision determining title of the parties to any immovable property.

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18] Mr. Thorat, learned Senior Advocate for the petitioner submitted that since the learned Single Judge of this Court has already expressed a prima facie view in judgment and order dated 30 April 2014 in Civil Suit No. 1245 of 2012 instituted by respondent Nos.3 and 4, it is only appropriate that directions are issued to the revenue authorities to effect mutation land record the petitioners' name in the property card. Such course, as suggested by the learned Senior Advocate may not be proper. Although, the judgment and order dated 30 April 2014 is entitled to due weight and consideration, the same cannot be the sole basis for effecting mutation. The Collector or the appropriate authority in terms of Section 300 of the Code, is entitled to call for evidence, examine witnesses as he shall consider necessary and thereafter summarily decide what entry shall be made in the revenue records. This process cannot be by passed. As submitted by Mr. Soonawalla, the judgment and order dated 30 April 2014 has been appealed against. The said judgment and order cannot be regarded as having determined the title of any of the parties to the said property. The said judgment and order, is not the one as contemplated by the proviso to Section 300 of the Code, which provides that if certified copy shall be produced before the Collector of an order of a competent Court determining the title to the said property, then the decision of the competent Court shall be binding upon the Collector, who shall be obliged

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to amend his records in conformity with such order. For all these reasons, the submission of Mr. Thorat, learned Senior Advocate for the petitioners, cannot be accepted at this stage.

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19] In the result, it is only appropriate that the order dated 29 September 2011 made by the Superintendent of Land Records and order dated 19 October 2013 made by the Maharashtra Land Revenue Tribunal are set aside. This is because, there is no clarity as to whether the powers of Collector had been delegated to the Superintendent of Land Records in terms of Sections 269 and 300 of Code. In any case, it is apparent that the Superintendent of Land Records in making the impugned order dated 29 September 2011 has not followed the provisions contained in Section 300 of the Code. Similarly, the order dated 19 October 2013 made by the Maharashtra Land Revenue Tribunal is liable to be set aside, because the revision application before the said Tribunal was not at all competent, in the light of provisions contained in Section 315 read with Schedule - J of the Code. The setting aside of the two impugned orders, therefore, is not upon merits. The matter, shall now stand remanded to the Collector or such authority empowered to under Sections 269 and 300 of the Code, who shall determine in accordance with law, whether the names of the petitioners can be entered in the land record/property card in respect of said property. Needless to add that the

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Collector or such other authority in deciding the matter shall apply the provisions contained in Section 300 of the Code. Considering the circumstance that development of said property has been stalled and the residents of the building therein, are being deprived housing for considerable period, it is appropriate to direct the Collector or such other revenue authority to decide the matter as expeditiously as possible and in any case within a period of six months from today.

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20] It is made clear that this Court has not expressed any opinion on the merits of the rival claims between the petitioner and respondent Nos. 3 and 4.

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21] Rule is made absolute to the aforesaid extent. There shall be however no order as to costs.

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(M. S. SONAK, J.)

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Chandka

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22] After pronouncement of this judgment and order, Mr. Darius K. Soonawalla, respondent no. 3 in person and a constituted attorney for respondent no. 4 seeks a stay on the implementation of this judgment and

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order for a period of twelve weeks. Mr. Soonawalla states that he is a patient afflicted with number of ailments and therefore he requires a period of at least twelve weeks, in order to take recourse against this judgment and order, in accordance with law. Mr. P. Joshi, learned counsel for the petitioner opposes the motion for stay.

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23] Although development of the property in question is stated to be

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held up, considering the reasons stated, the implementation of this judgment and order is stayed for a period of six weeks from today.

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24] Parties to act on the basis of an authenticated copy of this order.

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(M. S. SONAK, J.)

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Chandka

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Smt. Fergi Farookh Nargoliwalla and Anr. v. the State of Maharashtra, through Dept of Revenue and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Fergi Farookh Nargoliwalla and Anr. v. the State of Maharashtra, through Dept of Revenue and Ors.

Case brief

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What did the court decide?

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