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2019 DIGILAW 445 (BOM)

Santosh Laxman Vad v. State Of Maharashtra

2019-02-13

BHARATI H.DANGRE, RANJIT MORE

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JUDGMENT Ranjit More, J. - Rule. Rule returnable forthwith. Heard by consent of parties. 2. By the present Writ Petition, the petitioner seeks a Writ of Certiorari for calling the record and proceedings from the office of Respondent Nos.2 and 3 and thereafter for quashing and setting aside the development permission/commencement certificate dated 11.08.2017 granted in favour of respondent No.4. By way of interim order, the implementation of the said permission is sought to be stayed. On 03.10.2018 notice was came to be issued to respondents and by way of adinterim order the construction made by the respondent No.4 was made subject to outcome of the petition. 3. We have heard the learned counsel Shri.S.M. Oak along with Shri.S.A. Joshi appearing for the petitioner. The petitioner claim to be a legal heir of one Shri.Janya Rama Vad and claims that he was cultivating the land bearing Survey No.114/4 and 115/2 situated at Village Kolshet, Sector 5, Ghodbunder Road, Thane in the capacity as a tenant. It is the contention of the petitioner that Janya Vad was residing in the structure erected on the said land and his name was mutated as "protected tenant" in the Record of Rights on 31.01.1956 under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (for short ''B.T. & A.L. Act''). Shri.Janya Rama Vad expired on 20.10.1968 and the petitioner stakes his claim through him. The petitioner has placed on record a copy of the Mutation Entry 354 reflecting the name of the deceased person as ''protected tenant''. It is the case of the petitioner that in January 2015 the name was arbitrarily deleted from the record of rights. However, by Mutation Entry No.2959 dated 27.05.2016 it was again reentered under the same caption. 4. The petitioner is aggrieved by the development activity undertaken by respondent No.4 and the submission is that the respondent No.4 submitted a development proposal for development of the said land in amalgamation of Survey No.99/2 which was a land adjoining to the plot belonging to Janya Vad and this proposal came to be considered and on 11.01.2016, the Thane Municipal Corporation granted permission in favour of respondent No.4 to carry out the Development. The petitioner is also conscious of the fact that Commencement Certificate came to be granted to respondent Nos.4 on 11.01.2016 and 24.02.2016. The petitioner is also conscious of the fact that Commencement Certificate came to be granted to respondent Nos.4 on 11.01.2016 and 24.02.2016. The grievance of the petitioner is in respect of this permission and the construction being undertaken by the respondent No.4. Shri. Oak advances a submission that the Corporation and its Officer were aware that in 7/12 extract which is produced along with the development proposal dated 03.07.2017 submitted by the respondent No.4, the name of the deceased Shri.Janya Rama Vad, predecessor-in-title of the petitioner is recorded as ''protected tenant'' and in spite of this fact being noted, the permission for development was granted in favour of respondent No.4. Shri.Oak further submits that the land belonging to Shri.Janya Ram Vad, on his death is inherited by his legal heirs including the petitioner and respondent No.3 should have ensured that the person applying for development proposal has a proof of entry in the record of rights could have established it and it is but for extraneous consideration that the said entry in favour of the predecessor-in-title of the petitioner is ignored. 5. We have also heard Senior Counsel Shri. Vineet Naik for respondent No.4 and by inviting our attention to the detailed affidavit which is filed by respondent No.4 on 11.12.2018 which alleges that the petitioner is guilty of suppressing relevant material from this Court, including various proceedings initiated by the petitioner on the basis of the alleged successor of deceased Shri.Janya Ram Vad which are pending before the Additional Collector of Thane under the provisions of the Maharashtra Land Revenue Code, 1966 (''MLRC, 1966''). The reliance on the Mutation Entry No.354 of 31.01.1956 is also alleged to be doubtful and validity of the said Mutation Entry itself is questioned. 6. The affidavit in detail highlights the various proceedings that are initiated by the petitioner and reliance is also placed on the Deed of Conveyance dated 03.08.1965 registered in the Office of Sub-Registrar Assurances under Serial No.2545 of 1965 executed between Macks Hard Private Limited and Lal-Roe Measuring Tolls Private Limited, in respect of portion of land admeasuring 7,454.10 square meters bearing Survey No.114 Hissa No.4 (Part) together with a factory building and other structures standing thereon for consideration and on terms and conditions specified therein. 7. 7. Reference is also made to the Mutation Entry No.2749 dated 30.05.2012 recording the purchase of the Land by Lal Roe Measuring Tolls Private Limited dated 30.05.2012. Reference is also made to the Deed of Conveyance dated 31.07.2015 under Serial No.TNN12137 of 2015 read with Deed of Rectification dated 05.02.2016 under Serial No.TNN102045 of 2016 executed between Macks Hard Private Limited in the capacity of seller and respondent No.4 on the other hand. The said Deed of Conveyance dated 31.07.2015 is placed on record. 8. The learned senior counsel therefore submits that the respondent No.4 duly and validly acquired the absolute ownership right, title and interest in the said land and the said rights are valid and binding and subsisting as on date. It is also submitted that the respondent No.4 agreed to purchase and acquire all the rights, title and interest in the adjoining parcel of land bearing Survey No.99 Hissa No.3 admeasuring 19,589.67 square meters from the owner. 9. The learned senior counsel also invited our attention to the series of proceedings instituted by the petitioner to stake his claim and according to him in Regular Civil Suit No.1688 of 2016 an order passed by the Civil Judge Senior Division where the petitioner was restrained from disturbing the possession of the respondent No.4 till final adjudication of the suit. 10. With the assistance of the learned counsel for the parties, we have perused the petition and the detailed affidavit filed by the respondent No.4. The chronology of events disclose that Non-Agriculture order came to be issued by the Collector of Thane in favour of original owners of the land bearing Survey No.114 Hissa No.4 and new Survey No.115 Hissa No.2 in favour of one Shri. Balwant G. Joshi and Shri.Krishna G. Joshi in the year 1964. The Conveyance Deed was executed by them in favour of Macks Hard Pvt. Ltd., for purchase of the said land admeasuring 38236.75 sq. yards out of Hissa No.114/4, 115/2 of Village Kolshet on 03.08.1965. An Appeal was instituted by the petitioner along with one Dhakal Dharma Vad before the SDO at Thane challenging Mutation Entry No.603 (in favour of Macks Hard Pvt. Ltd. Effected pursuant to the Conveyance dated 12.01.1961) and Mutation Entry No.2749 (in favour of Lal Roe Measuring Tolls Pvt. Ltd. effected pursuant to the Conveyance dated 03.08.1965). 11. An Appeal was instituted by the petitioner along with one Dhakal Dharma Vad before the SDO at Thane challenging Mutation Entry No.603 (in favour of Macks Hard Pvt. Ltd. Effected pursuant to the Conveyance dated 12.01.1961) and Mutation Entry No.2749 (in favour of Lal Roe Measuring Tolls Pvt. Ltd. effected pursuant to the Conveyance dated 03.08.1965). 11. The said appeal was numbered as 199 of 2014 and it was claimed that the Janya Rama Vad was protected tenant and Mutation Entry No.354 dated 31.01.1956 was effected, recording him as kul/protected tenant but his name was illegally deleted from the 7/12 extract. The Appellants claim that there are legal heirs and descendants of Janya Rama Vad. On 30.4.2015, the said appeal was dismissed by SDO on the ground of delay. The petitioner thereafter, preferred an appeal which was numbered as RTS Appeal No.84 of 2015 before the Additional Collector (Appeals), Thane. 12. In the meantime, the petitioner also approached the Revenue Minister by filing an application under Section 155 of the Maharashtra Land Revenue Code, 1966. The said application was considered and direction was issued to the Tahsildar to look into the matter and submit a report. On 08.10.2015 the Tahsildar, Thane directed inclusion of the name of Janya Vad to be restored under 7/12 extract of the said land. Accordingly, the Tahsildar of Kolshet drafted Mutation Entry No.2959 recording Janya Vad as Kul of the said land and notices were issued for raising objections. The Macks Hard and Lal Roe objected to the draft Mutation Entry and consequently Disputed case No.16 of 2016 was registered before the Tahsildar, Thane under Section 150(4) of the MLRC, 1966. 13. The Tahshildar certified the Mutation Entry No.2959 by rejecting the objection of the respondent No.4. Macks Hard and Lal Roe preferred an application in the pending RTS Appeal No.84 of 2015 before the Additional Collector (Appeals), Thane praying for rescission of Mutation Entry No.2959 till the final disposal of the Appeal. The Additional Collector stayed the proceedings. Ultimately, the Additional Collector on 23.05.2016 called for entire record and proceedings of the D.C. No.16 of 2016 from the Office of Tahsildar, Thane. The RTS Appeal No.190 of 2016 is preferred by Macks Hard before SDO challenging the order passed by the Tahsildar confirming the Mutation Entry No.2959. 14. The statusquo was granted in the said appeal. Ultimately, the Additional Collector on 23.05.2016 called for entire record and proceedings of the D.C. No.16 of 2016 from the Office of Tahsildar, Thane. The RTS Appeal No.190 of 2016 is preferred by Macks Hard before SDO challenging the order passed by the Tahsildar confirming the Mutation Entry No.2959. 14. The statusquo was granted in the said appeal. Ultimately, on 22.09.2016 the Additional Collector passed an order in RTS Appeal No.84 of 2015 and the order passed by the Tahsildar, Thane recording name of Janya Vad as Kul of Free-holding Land came to be cancelled and set aside. The petitioner therefore, approached the Additional Commissioner, Kokan Division by filing RTS Appeal No.1101 of 2016. The Additional Commissioner on 05.04.2017 has allowed the Appeal filed by the petitioner and set aside the order dated 22.09.2016. Against this, Macks Hard and Lal Roe has approached the Revenue Minister by filing an appeal and the same is pending for final hearing. 15. The aforesaid chronology of events thus disclose that the issue of Mutation Entries is pending before the Competent Authority and the petitioner has surreptitiously kept this information away from this Court and approached this Court with a innocuous prayer of setting aside the permission/commencement certificate granted in favour of respondent No.4. 16. In light of the disputes pending between the parties which we have referred to above, we are not inclined to interfere in the permission certificate granted in favour of respondent No.4 and in any contingency, the decision in the proceedings about Mutation Entry will finally determine the outcome of the right of the petitioner to develop the property. 17. The petitioner has also failed to establish his relationship with Janya Vad and except an oral statement to the effect that he is the legal heir, nothing has been placed on record. In such circumstances, we are not inclined to entertain the petition and the same deserves to be dismissed.