Writ Petition No.1202 of 2001

18th July, 2009

Petitioner Counsel: Mr. A. J. ALMEIDA
Respondent Counsel: Mr. K. R. BELOSAY,Mr. V. C. KOTWAL,Mr. PRAKASH SHAH,M/s. DSK Legal

Cases Cited:
Kunyayammed Vs. State of Kerala, (2000)6 SCC 359 [Para 25]

JUDGMENT

P. B. MAJMUDAR, J.:- By way of this petition, the petitioners, Gorai Machhimar Sahakari Sanstha Limited and its President, have challenged the order passed by respondent No.2 dated 29th April, 1997, a copy of which is annexed as Exhibit-B to the petition, on the ground that the same is illegal. The petitioners have also made various prayers such as directing the respondents to allot the land in dispute i.e. Survey Nos.268, 269, 270-A and 270-B in Gorai Village to the first petitioner society in accordance with the Government Circular dated 4th February, 1983. It is also prayed that respondent No.1 may be restrained from carrying on building, land reclamation or any other activity upon land bearing Survey Nos.268, 269, 270-A and 270-B in Gorai Village.

2. During the course of hearing of the petition, learned counsel for the petitioners has fairly submitted that though various reliefs have been claimed in the petition, he is confining the reliefs only in connection with the impugned order passed by respondent No.2, who at the relevant time was the Revenue Minister. It is submitted that regarding other prayers, the petitioners are not pressing the same with a view to take appropriate recourse as per law. In this petition, this Court is, therefore, required to only examine the legality and validity of the impugned order dated 29th April, 1997.

3. It is the case of the petitioners that the petitioners are vitally interested in the disputed land which is the subject matter of this petition on the ground that the said land in question is khazan land and that the same has been used by the members of the petitioner No.1 for the purpose of fishing activities. It is the case of the petitioners that by way of circular dated 4th February, 1983, the petitioners rights were recognised by the State. It is submitted that, however, because of the impugned order passed by the then Revenue Minister, respondent No.2 herein, respondent No. 3 is not allowing the members of the petitioner No.1 to carry out the fishing activities. It is the case of the petitioners that since fishing is their traditional avocation, they are carrying out the said activity since time immemorial and were using the land in question for activities connected with fishing but now the petitioners are prevented by respondent No.3 from enjoying the said activities on the ground that the disputed land belongs to respondent No.3 and not of the ownership of the State Government. In order to appreciate the grievance of the petitioners, certain factual aspects which are not in dispute are required to be taken into consideration.

4. The lands in question i.e. Survey Nos.268, 269, 270-A and 270-B in Gorai Village were subject to a lease executed between the State and one Shri. Shamrao Pandurang Velkar for a period of 999 years. The said lease deed was executed as back as on 16th June, 1885. In the year 1896, the State Government terminated the said lease on the ground that the lessee has committed breach of the terms of the said lease deed. The concerned lessee thereafter instituted proceedings in this Court by way of a suit on the ground that the lessee had not committed any breach of the terms of the lease. That suit was ultimately decreed in appeal by this Court by holding that the lessee had not committed breach of the terms of lease and it was found that the lease was valid and subsisting.

5. Subsequently, in the year 1944, the concerned District Collector forfeited the said land on the ground of breach of terms and conditions of the lease deed. On the basis of the same, mutation entry No.470/44 in the name of the State was recorded in the revenue record and from the said date onwards, the name of the State appeared in the revenue record showing to be the owner and in occupation of the aforesaid lands in question.

6. After considerable time in the year 1972, a civil suit was filed by the heirs of late Shamrao Pandurang Velkar (original lessee) being Suit No.42 of 1972 for partition between the heirs of deceased Shamrao Velkar. It is pointed out to the Court that a consent decree was passed in the said suit and on the basis of the same, the said land was put to auction by the Court Receiver.

7. One M/s. Skipper Village Resorts Limited purchased the said land in auction which sale was subsequently confirmed by the Court. So far as the aforesaid suit is concerned, as pointed out earlier, the same was filed by the heirs of the deceased Shamrao Velkar. Ultimately the heirs of the deceased Shamrao Velkar settled the suit which was a suit for partition. In the said suit, the State Government or any of the revenue officers were not made parties.

8. Subsequently in January, 1985, M/s. Spot Builders Pvt. Ltd., which was the subsidiary of M/s. Skipper Village Resorts Limited, preferred an application to the Tahsildar for transferring the land in question in their name. At that time, M/s. Spot Builders Pvt. Ltd., realised that the land in question stood in the name of the State Government as there was no revenue entry in favour of deceased Shamrao Velkar or in favour of his heirs at the relevant time. On the basis of the said application submitted by M/s. Spot Builders Pvt. Ltd., the Sub-Divisional Officer, Bombay, conducted an enquiry under Section 20(2) of the Maharashtra Land Revenue Code, 1966, hereinafter referred to as "the Code". The said officer by his order dated 3rd March, 1986 decided that the claim of M/s. Spot Builders Pvt. Ltd. was just and proper. The entry which was in existence since 1944 was accordingly set aside in the said enquiry. It was ordered that the name of the Government may be deleted from the revenue record and the name of M/s. Spot Builders Pvt. Ltd. should be shown in the revenue record.

9. The aforesaid order of the Sub-Divisional Officer dated 3rd March, 1986 was challenged by the Tahsildar, Borivli, by way of an appeal before the Deputy District Collector (Appeals). The said appeal was rejected by the appellate authority by order dated 26th December, 1986. Subsequently, the Commissioner, Konkan Division, suo motu took the matter in revision. The Commissioner, Konkan Division, by order dated 13th September, 1988 set aside the orders passed by the Sub-Divisional Officer as well as by the appellate authority. The Commissioner, Konkan Division observed thus :

"In the result, I have come to the conclusion that the enquiry under Section 20(2) of the Maharashtra Land Revenue Code undertaken by the Sub Divisional Officer, B.S.D, is ab initio void. Consequently the decision in appeal by the Deputy Collector (Appeals) Bombay also renders itself ab initio void. The lands involved in this matter are Government lands as declared by the revision Survey of 1926-27 and the decision in the enquiry made by the C.T.S. Enquiry Officer in 1968. The respondents have no subsisting right in the lands. The mutations made in the record of rights pursuant to the decision of the lower appellate court should be cancelled and the lands should be entered in the name of State Government."

10. The aforesaid order of the Commissioner, Konkan Division, was challenged by M/s. Spot Builders Pvt. Ltd. By way of a writ petition being Writ Petition No.3540 of 1988. The said writ petition was rejected on 19th December, 1988 on the ground that highly disputed questions of fact were involved in the matter. The aforesaid order was challenged by the said M/s. Spot Builders Pvt. Ltd. by way of an appeal being L.P.A. No.12 of 1989. However, the said appeal was withdrawn.

11. The said M/s. Spot Builders Pvt. Ltd. thereafter instituted a civil suit being Suit No.1161 of 1989 on the Original Side of this Court claiming ownership over the lands in question as well as for other ancillary reliefs. The said suit is still pending before this Court, as pointed out by both the learned counsel appearing for the parties.

12. At this stage reference is required to be made to two separate orders passed by the learned single Judge in Suit No.1161 of 1989 filed by Spot Builders Pvt. Ltd. through whom respondent No.3 is claiming a right over the disputed lands. In the said suit a Notice of Motion bearing No.984 of 1989 was preferred by M/s. Spot Builders Pvt. Ltd. A learned single Judge of this Court on 2nd April, 1991, while disposing of the said Notice of Motion observed as under :

"2. I make it clear that the Applicants cannot claim any higher right than what the Plaintiffs had claimed in the present suit. They are being brought on record mainly because of the order of the Company Court passed on 31.7.1989. I also make it clear that there is no question of the said Applicants making any complaint or grievance that they have not been heard by the Government in the inquiry conducted by Defendant No.2. This is because the Plaintiffs viz. M/s. Spot Builders Pvt. Ltd. have been heard extensively at the time of the inquiry.

3. In the notice of motion, the Plaintiffs are seeking a relief of injunction restraining Defendants 1 and 2 from disturbing their possession, use, enjoyment and development of certain properties described in Exhibit "A" to the Plaint. The said Exhibit "A" mentions in all 8 properties. But we are concerned with only Survey Nos.268, 269, 270-A and 270-B. The Government is not concerned with the other Survey Numbers, as far as this suit is concerned.

4. It is the claim of the Plaintiffs that they purchased the suit property as described in Exhibit "A" in an auction sale held on 26.6.1981 in the High Court Suit No.42 of 1972. That suit came to be filed by other Defendants, inter se, who claim to be the owners of the properties mentioned in Exhibit "A". It appears, initially the suit was for partition and for various other reliefs. However, finally, the suit came to be disposed of by an order for sale of the suit properties. It appears that Court Receiver had been appointed in respect of these properties. In the said suit, it is the case of the Plaintiffs that pursuant to the said sale held on 26.6.1981 Court Receiver put them in possession on 25.6.1982. There is a receipt passed by the Plaintiffs in favour of the Court Receiver, which is at Exhibit "C" to the Plaint.

5. The Plaintiffs say that after they purchased the property, they made an application to the revenue authorities and accordingly, after an inquiry, their name came to be entered in the record of rights, initially on 3.3.1988 by the Sub-Divisional Officer. Thereafter there was an appeal against the same by the Government. That appeal also came to be rejected and the order of the Sub-Divisional Officer was confirmed by the Deputy Collector by his order dated 24.12.1986.

5-A. However, Defendant No.2 - the Commissioner, Konkan Division, decided to hold an enquiry under Section 257 of the Maharashtra Land Revenue Code and accordingly he issued a notice dated 24.3.1988 to the parties. After notice, parties appeared before the Commissioner. The Commissioner heard the parties and the Government Pleader. Finally, by an order dated 13.9.1988 he reversed the order of the Sub-Divisional Officer and directed that the mutations made in the record of rights pursuant to the decision of the lower appellate Court should be cancelled and the land should be entered in the name of the State Government.

6. It appears that as against this order of the Commissioner, the Plaintiffs filed a writ petition bearing No.3450 of 1988, which came to be rejected on the ground that there were several disputed questions of facts. Thereafter, after giving a notice under Section 80, Code of Civil Procedure, the Plaintiffs filed the present suit.

7. As far as this motion is concerned, the Plaintiffs claim to be in possession. Their right is based on the fact that they had purchased this property in an auction sale held on 26.6.1981. Their trump-card is the receipt passed by them in favour of the Court Receiver on 25.6.1982.

8. The land in question is described in Exhibit 'A' as 'khazan lands'. Obviously, it is a marshy land and perhaps during the high tide, the entire land is submerged under water. Excepting the assertion on the part of the Plaintiffs that they have been put in possession of this land and that prior to their being in possession, Velkars' family, namely, the other Defendants were in possession, there is no material on record whatsoever to substantiate their contention.

9. It appears that on 18.6.1885 the Government had leased out in all 760 acres of land to the said Velkars for a period of 999 years. The record shows that, that the position continued till about 1926-27. Sometime in 1926-27, the Government purported to resume the land, apparently on the ground that the land had not been reclaimed by the Velkars for the purpose of cultivation. There is some controversy as to whether the Government could have demanded a certain assessment in respect of this land or not. As far as this notice of motion is concerned, it is not necessary to go into the said controversy. However, we have a clear evidence that as on 3.7.1944 there is an entry in the record of rights showing the said lands in the name of the Government. The record shows that the name of one Sunderrao Shamrao (Velkar) was deleted and Government's name was brought on record. This was verified on 20.11.1944 and thereafter it was certified by the Extra Aval Karkun on 22.2.1946. This entry has continued throughout till the same was cancelled by the Sub-Divisional Officer's order on or about 5.5.1986. Therefore, as far as the record is concerned, it is clear that the land had throughout stood in the name of the Government.

10. The record further shows that sometime in 1965 one of the Velkars died and the heirs of the said Velkar made an application for bringing their names on record in the village khata. Significantly, the properties mentioned therein did not include them 'khajas lands', which are the subject matter of this Notice of Motion. Thereafter, there is also a letter dated 11.9.1985 written by M/s. Minocher Hiralal & Co. Attorneys on behalf of the Velkars in which they claimed that they were the owners of the lands and they requested the Mamlatdar to make certain entries. The said letter includes Survey Nos.268 and 269. Though the Attorneys requested to effect mutation of the names, significantly, the Government did not oblige them. In the result the entry made on 3.7.1944 continued to be in the name of the Government. Thereafter, in 1968 an inquiry was held. In the inquiry, one of the Velkars appeared before the Inquiry Officer. The order passed in the said inquiry has been annexed to the affidavit in reply dated 19.10.1989 as Exhibit No.8. That clearly shows that Velkars were aware that the land had been shown in the name of the Government and that they were aware of that, since about 1954-55. The order further says that the Velkars did not appeal against the said order even though they were aware of the fact that the land had been shown in the name of the Government since 1944.

11. All the record of rights have been annexed to the affidavit-in-reply showing that the Government has continued to be shown in possession of these lands.

12. Therefore, it is only on the basis of the suit filed by the Velkars inter se, the Plaintiffs are claiming a right in respect of these lands. If Velkars had no right whatsoever, there is no question of the Plaintiffs getting any right in respect of these lands. Just because Velkars have filed the consent terms and just because Court Receiver has been appointed Receiver in respect of these suit lands, it does not mean the Government ceases to have any right in respect of the property. The Government was never a party to the said suit. Mr. Mehta submits that the receipt passed in favour of the Court Receiver clearly shows that Court Receiver has handed over possession of the entire land to the Plaintiffs. I must say that in all probability the receipt is only a receipt of possession on paper only. There is nothing to show that the Court Receiver, had, in fact, handed over physical possession of the land. There is also nothing on record to show the manner of the user of the land by Velkars or even by the Court Receiver at any time. There is also nothing on record to show that as from 1944, Velkars or the Plaintiffs have paid any amount by way of revenue or otherwise to the Government authorities. Therefore, excepting an oral assertion on the part of the Plaintiffs that Velkars were in possession of this land, there is no other material on record.

13. Miss. Anklesaria, learned Government Pleader submitted that the Government is in possession of these lands. In para 5 of its affidavit-in-reply, the Government has set out how this land has been used and is given to others for the purpose of quarrying. Thus, it comes to this that the Plaintiffs have no prima facie case whatsoever to claim that they are in possession of this land or have any right in relation to this land."

13. The learned Judge, however, granted status quo for six weeks as the prayer was made to extend the injunction order.

14. Against the aforesaid order, an Appeal being No.643 of 1991 was filed by respondent No.3. In the Notice of Motion filed in the said Appeal, a Division Bench of this Court on 16th August, 1991 appointed Court Receiver of the lands bearing Survey Nos.268 and 269 of village Gorai. It was directed that the Court Receiver shall permit the appellants and their employees and customers to use the road upon the said lands to approach their recreation centre and that the appellants shall be the Court Receiver's agents in that behalf. Accordingly, it is pointed out that respondent No.3 is acting as the Court Receiver's agent regarding the said properties.

15. It seems that subsequently, M/s. Spot Builders Pvt. Ltd. was amalgamated with M/s. Essel Amusement Parks (India) Ltd. The name was subsequently changed to Pan India Paryatan Ltd, who is joined as respondent No.3 in this petition. We are now informed that even the name of respondent No.3 is also changed subsequently to Essel Infraprojects Limited. The cause title is also accordingly amended by incorporating the new name as Respondent No.3 in this petition.

16. Going back to the revenue proceedings, Respondent No.2, as a Revenue Minister exercising the appellate powers of the State Government, by his order dated 29th April, 1997, set aside the order of the Commissioner in an appeal preferred by Respondent No.3 herein. The aforesaid order is challenged by the petitioners in the instant petition on the ground that respondent No.2 could not have set aside the said order in appeal as the appeal was filed against the order of the Commissioner after more than eight years and one month of the said order. The challenge is also on the ground that since 1944, the name of original lessee, Shamrao Velkar, stood deleted from the revenue record and, therefore, after a lapse of so many years, the said order should not have been set aside by the Sub-Divisional Officer, Bombay, by holding an enquiry under Section 20(2) of the Code. It is submitted that the Commissioner, Konkan Division, was perfectly justified in exercising the revisional power and that this is nothing but a case of fraud especially when in a partition suit filed by the heirs of said Shamrao Velkar the State Government, in whose favour there was already an entry in the revenue records since long, was not joined as a party. It is submitted by the learned counsel for the petitioners that prior to respondent No.2 deciding the appeal as a Revenue Minister, a meeting was held under the Chairmanship of the then Chief Minister on 19th February, 1996 which meeting was also attended by respondent No.2, wherein it was decided that the order passed by the Commissioner could be challenged by way of an appeal. It is the case of the petitioners that the said meeting was attended by the representative of respondent No.3 and a decision was taken by which respondent No.3 was advised to file an appeal before respondent No.2 and ultimately the said respondent No.3 filed such an appeal before respondent No.2 which appeal was allowed by respondent No.2 by the impugned order. It is submitted that hearing of such appeal by respondent No.2, the then Revenue Minister, is nothing but misuse of powers conferred on the State Government under the Code as it was pre-determined to allow such an appeal well in advance. It is further submitted that since the petitioners were not parties to the said proceedings, they were not aware about such proceedings. On the basis of the said order, the members of the Petitioner No.1-Association were prevented from carrying out their fishing activities. It is the case of the petitioners that in the year 1998, the third respondent started constructing a bund upon the said land and tried to destroy the mangroves and at that stage the petitioners filed a writ petition being Writ Petition No.2227 of 1999. The said writ petition was dismissed by this Court vide order dated 20th January, 2000, directing the petitioners to approach the Maharashtra Coastal Zone Management Authority. It is the case of the petitioners that subsequently the petitioners again filed another writ petition being Writ Petition No. 906 of 2001 wherein a direction came to be issued to the Maharashtra Coastal Zone Management Authority to hear the petitioners and pass appropriate orders. It is submitted that the said authority rejected the claim of the Petitioners and allowed respondent No. 3 to carry on construction of bund. The petitioners thereafter have filed a substantive writ petition being Writ Petition No.280 of 2005, which is pending before this Court. The petitioners were pursuing the said issue before the appropriate authority and it is subsequently on realisation that respondent No.3 is claiming ownership rights in view of the order passed by respondent No.2, that this petition has been filed seeking the reliefs mentioned above.

17. The order of respondent No.2 is challenged on the ground that the said order is illegal as before passing the said order, a decision was already taken in the meeting to which respondent No.2 was a party that the land in question may be allotted to respondent No.3. Learned counsel for the petitioners submitted that the land in question being khazan land is meant for the benefit of fishermen for fishing activity and if it remains as a Government land, the members of the petitioners can continue with this activity but if the land is transferred to respondent no.3, their valuable rights will be lost. It is submitted that in any case respondent No.2 while deciding the appeal has also not considered the fact that the appeal was belated by more than eight years and without considering the said aspect, respondent No.2, exercising the powers of the State Government, decided the appeal in a hurried manner. Respondent No.2 even otherwise could not have allowed the appeal for the simple reason that since 1944 the revenue entry was already posted in favour of the Government and after so many years the said entry could not have been upset by respondent No.2 in such a manner. Learned counsel for the petitioners further submitted that in the partition suit the State Government was not a party and, therefore, that decree is nothing but a collusive decree only with a view to deprive the Government of its ownership rights. The learned counsel for the petitioners further submitted that when the writ petition was already dismissed by this Court against the order of the Commissioner, Konkan Division and when respondent No.3 has already filed a substantive civil suit which was pending then and is as yet pending, there was no reason for respondent No.2 to entertain the Appeal. Learned counsel for the petitioners further submitted that even in the civil suit filed by respondent No.3, which is pending in this Court, a written statement is filed by the State Government asserting its rights over the land in question. Yet, contrary findings have been recorded by respondent No.2 in an absolutely improper and unjust manner and by misusing his powers as Revenue Minister. On this and several other grounds the order passed by respondent No.2 is impugned at the instance of the present petitioners.

18. It may be pointed out that the State Government has neither filed any reply controverting the averments made in the petition nor any substantial arguments have been made at the Bar except the learned counsel appearing for the State Government made a faint attempt to justify the impugned order passed by respondent No.2. The stand of the State Government in the instant petition cannot be said to be without reason, being faced with a situation where the findings recorded by respondent No.2 are diametrically opposite to the assertion of the State Government in the written statement filed in the suit by respondent No.3. Confronted with the said situation, the learned counsel for the Government has ultimately submitted to the orders of the Court.

19. The petition has been opposed by respondent No.3 by filing its reply. Mr. Kotwal, learned senior counsel appearing for respondent No.3, submitted that after the order of respondent No.2, a review petition was filed by the State of Maharashtra under Section 258 of the Code which was heard by the Secretary and Officer on Special Duty (Appeals),Revenue and Forest Department. The said review petition was rejected upholding the order of respondent No.2. In view of this, it is submitted by Mr. Kotwal that the order passed by respondent No.2 merges with the order of the reviewing authority and since the order in review is not challenged, the challenge to the order at Annexure-B passed by respondent No.2 is not sustainable as the said order can be said to have been merged with order of the reviewing authority who rejected the review petition. It is submitted by Mr. Kotwal that the order canceling the lease by the then Government was set aside by this Court in appeal and that is how the right of the original lessee Velkar was recognised and the said lease continued all throughout and under the circumstances the concerned officer was justified in deciding in favour of respondent No.3 in an enquiry under Section 20(2) of the Act. It is submitted by Mr. Kotwal that the petitioners, even otherwise, have no locus standi to challenge the order passed by respondent No.2 as the petitioners were not party to the said proceedings nor they can said to be aggrieved parties and, therefore, they have no right qua the land in question. Mr. Kotwal submitted that this is not a public interest litigation and, therefore, whether respondent No.2 was justified in passing the order on the basis of the meetings held which meeting respondent No.2 attended is the question which is not required to be considered in this petition.

20. Mr. Kotwal further submitted that the challenge to the order of respondent No.2 is belated one as the petition is filed after more than three years as respondent No.2 has decided the appeal on 29th April, 1997 and the petition has been filed on 24th April, 2001. Mr. Kotwal further submitted that a subsequent petition which is filed in the year 2005 in connection with environmental matter, the review order is referred to and, therefore, the petitioners can be said to have knowledge at least in 2005. Mr. Kotwal submitted that it is true that no order has been passed condoning the delay by respondent No. 2 at the time when he entertained the Appeal. The fact remains that respondent No.2 decided the matter on merits and so it would have to be presumed that the delay has been condoned by respondent No.2. Mr. Kotwal further submitted that in the pending suit, an application was made by respondent No.3 that pendency should not be an impediment in respondent No.3 approaching the revenue authority by way of a representation and permission was accordingly granted by the learned single Judge to prefer an appropriate representation against the order of the Commissioner, Konkan Division. Accordingly, a praecipe was moved on 20th December, 1996. The learned single Judge hearing suits clarified that the pendency of the suit in this Court may not come in the way of the State Government deciding the representation to be made by the Plaintiffs on merits as per the relevant provisions of law. In the said order, the statement made on behalf of the plaintiff i.e. Respondent No.3 was recorded that as per Section 257 of the Code, the record and proceedings of the matter is being examined by the State Government, which includes, inter alia, the impugned order passed by the Commissioner, Konkan Division dated 13th September, 1988. The Government Pleader appearing for the State submitted that the Government has no objection, if the concerned authority of the State proceeds to hear the representation despite pendency of the suit in the Court and accordingly by consent of the parties, the learned Judge passed the order. On the basis of the said order, an appeal was subsequently filed before the State Government, which was heard by respondent No.2 and which came to be allowed, which order is impugned in the present petition.

21. Mr. Kotwal further submitted that in any case, the revenue entry is only for fiscal purpose and no title is conferred by such entry and since the civil suit filed by respondent No.3 is pending, this Court may not exercise its discretionary jurisdiction under Article 226 of the Constitution of India by examining the impugned order passed by respondent No.2.

22. Mr. Kotwal, however, fairly submitted that respondent No.3 is not aware as to whether the deceased Shamrao Velkar and subsequently his heirs were paying land revenue after 1944. Moreover, respondent No.3 is not aware as to whether the heirs of deceased were in possession of the disputed land at the relevant time. It is submitted by Mr. Kotwal that since this aspect is not within the knowledge of respondent No.3, it is not possible for him to say anything in this behalf. It is submitted that since respondent No.3 purchased the land in court auction,which auction was held in pursuance of the decree passed in a civil suit, that respondent No.3 is claiming title over the disputed land. It is submitted by Mr. Kotwal that the issue of title can always be decided in a substantive civil proceeding and revenue entry cannot be of any avail. Mr. Kotwal also submitted that the circular dated 4th February, 1983 on which the petitioners rely on is of a general nature and does not have any application regarding the land in question. It is also submitted that the alleged meetings held on 19th February, 1996, 30th May, 1996 and 30th July, 1996 do not warrant any conclusion as to the likelihood of bias or lack of probity as alleged or otherwise. Mr. Kotwal submitted that the petitioners have not filed any proceedings to enforce their rights, if any, regarding continuing with the fishing activity in the disputed land. It is lastly submitted that since several disputed questions of fact are involved in this petition, the petition under Article 226 is not required to be entertained by this Court in its extraordinary jurisdiction.

23. We have heard the learned counsel appearing for the parties. We have also gone through the voluminous records produced in the petition, as also various orders passed by the revenue authorities from time to time, various orders passed in the civil suit and also considered the written statement filed by the State in the pending suit.

24. Since a preliminary objection has been raised by Mr. Kotwal that the order of Commissioner merges with the order of the reviewing authority and since the order passed by the reviewing authority is not challenged, this petition is not maintainable. We, therefore, deem it fit to examine the said issue at the threshold. In this connection, reference is required to be made to Section 258 of the code which reads thus :

"258. Review of orders :- (1) The State Government and every revenue or survey officer may, either in its or his own motion or on the application of any party interested, review any order passed by itself or himself or any of its or his predecessors in office and pass such orders in reference thereto as it or he thinks it;

Provided that :

(i) If the Collector or Settlement Officer thinks it necessary to review any order which he has not himself passed, on the ground other than that of clerical mistake, he shall first obtain the sanction of the Commissioner or the Settlement Commissioner, as the case may be, and if an officer subordinate to a Collector or Settlement officer proposes to review any order on the ground other than that of clerical mistake, whether such order is passed by himself or his predecessor, he shall first obtain the sanction of the authority to whom he is immediately subordinate.

(ii) No order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order.

(iii) No order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed.

(iv) No order affecting any question of right between private persons shall be reviewed except on an application of a party to the proceedings, and no such application for review of such order shall be entertained unless it is made within ninety days from the passing of the order.

(2) No order shall be reviewed except on the following grounds, namely :

(i) discovery of new and important matter or evidence;

(ii) some mistake or error apparent on the face of the record;

(iii) any other sufficient reason.

(3) For the purposes of this Section the Collector shall be deemed to be the successor in office of any revenue or survey officer who has left the district or who has ceased to exercise powers as a revenue or survey officer and to whom there is no successor in the district.

(4) An order which has been dealt with in appeal or on revision shall not be reviewed by any revenue or survey officer subordinate to the appellate or revisional authority.

(5) Orders passed in review shall on no account be reviewed."

25. So far as the powers of the revenue authorities are concerned, the remedy of review is not as a matter of course provided by the Code. In short, it is not a remedy which is provided in the hierarchy of remedies available to a party under the Code. In the instant case the power of review under Section 258 of the Code is akin to the powers provided under Order 47 of the Civil Procedure Code. Review is not a remedy which can be said to be available as a matter of right. In the instant case, the concerned Secretary while deciding the review filed against the order passed by respondent No.2 has not set aside the said order. The Secretary and Officer on Special Duty who decided the said review petition by his order dated 28th April, 2003 dismissed the said review application by confirming the order dated 29th April, 1997 passed by the Revenue Minister (present respondent no.2). As mentioned earlier, the powers of review under the Code are akin to the powers of review under Order 47 of the Civil Procedure Code. Review proceedings are, therefore, not proceedings which are available as a matter of course. Simply because the review petition is dismissed and original order is confirmed, it cannot be said that the original order merges with the review order as it is not an appeal or revision which is provided in the hierarchy of proceedings under the Code. In a given case, if a decree is passed by the Civil Court and review preferred by the concerned party against the decree is rejected, still appeal is the only remedy for challenging the original decree as provided in Section 96 of the Civil Procedure Code. In this connection, a useful reference would be made to a decision of the Supreme Court in the case of Kunyayammed and others Vs. State of Kerala and others, (2000)6 SCC 359. In the said case, the Supreme Court has considered the principle of the doctrine of merger. It has been held that it is merely a common law doctrine based on principles of propriety in the hierarchy of judicial system. It postulates merger of the subordinate forum's decision in the decision of the appellate or revisional forum modifying, reversing or affirming such decision. Thereafter only the latter and not the former exists in the eye of law. It is held that the doctrine is not of universal or unlimited application. Its applicability has to be determined keeping in view the nature of jurisdiction exercised by the superior forum and the content or subject matter of the challenge. The Supreme Court has considered the nature of Supreme Court's jurisdiction at the SLP and post leave stage. So far as the said judgment is concerned, it is in connection with dismissal of SLP. It has been held that when after granting special leave, if the appeal is ultimately decided, the order of the High Court can be said to have been merged with such order of the Supreme Court but same is not the position in case the SLP is dismissed in limine. The relevant observations of the Supreme Court may be noticed :

"The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmative or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it."

26. As pointed out earlier, a review cannot be said to be a remedy available in the hierarchy of the remedies available under the Code. In the instant case, the State Government had itself filed the review petition seeking review of the order passed by respondent No.2 exercising the powers of the State Government. In our view, therefore, it cannot be said that simply because the petitioners have not challenged the review order, the petition is not maintainable. Even otherwise, it is required to be noted that the order passed by the Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, is subsequent to the filing of the present petition as this petition is filed in the year 2001 while the order of the Secretary is dated 28th April, 2003. The said order has been passed during the pendency of the above petition, after the State Government had notice of the above petition probably with a view to see that this petition becomes infructuous on the said ground. It is pertinent to note that the petitioners were not parties to the said review proceedings and, as pointed out by the learned counsel for the petitioners, they were not aware about any such order passed. Considering the aforesaid aspect, we do not find any substance in the preliminary objection raised by Mr. Kotwal that this petition is not maintainable in view of the order passed by the Secretary on 28th April, 2003 rejecting the review application preferred by the State. Even otherwise, considering the facts and circumstances as indicated above, it cannot be said that the order of respondent No.2 impugned in the above petition is said to have been merged with the order passed by the Secretary in the review petition on the ground that the review petition is dismissed against the order of respondent No.2 and unless it is challenged, the challenge to the order passed by respondent No.2 is not maintainable.

27. Regarding the point raised by Mr. Kotwal about the locus standi of the petitioners is concerned, it is required to be noted that as per the policy decision contained in Government Circular dated 4th February, 1983, the petitioners are claiming right in the khazan land for using the same for fishing and other allied activities. It is the specific averment of the petitioners in the writ petition that since long, the members of petitioner No.1 Society continued to have the benefit of the same but subsequently at a later stage they were prevented by respondent No.3 from carrying out the said activity that they realised that on account of the impugned order passed by respondent No.2 that respondent No.3 is preventing them from carrying out the said activity. The averments made in the petition in this behalf have not been controverted by the State Government by filing any reply. If the land continued to be in the name of Government and if it is held to be a Government land, the petitioners are entitled to carry on the fishing activities in terms of the circular and in terms of their traditional right to which the petitioners have also made various representations from time to time to the State Government as well as in view of the fact that for many years the members of petitioner No.1 were carrying out their activities which is not in dispute. It, therefore, cannot be said that the petitioners have no locus standi to challenge the said decision of respondent No.2. The learned counsel for the petitioners submitted that even in the public interest also the order of respondent No.2 is not sustainable. Since this petition is not filed as a public interest litigation, it is not necessary for us to examine the aforesaid aspect in this petition. However, in our view, it cannot be said that the petitioners have no locus standi to challenge the decision of respondent No.2.

28. The main question which is required to be considered in this petition is as to whether the order passed by respondent No.2 requires interference in our writ jurisdiction under Article 226 of the Constitution of India. In order to consider the said aspect, it is necessary to go back in history in respect of lands in question. It is required to be noted that in the year 1885, a lease deed was executed between the State Government and one Shamrao Velkar which lease was executed for 999 years. When the said lease was sought to be terminated on the ground of breach of conditions that ultimately in the year 1900, this Court found that there was no breach of conditions and accordingly it was held that the lease was valid and subsisting. However, subsequently in the year 1944, the said lease was forfeited by the order of the District Collector on the ground that there was a breach of the terms and conditions of the lease deed. That order, of course, is not available on record. However, it is not in dispute that a mutation entry was recorded on the basis of the said order as back as in the year 1944 being mutation entry No.470/44. Subsequently even the City Survey officer issued a certificate dated 13th June, 1969 that the said land belongs to the State Government. It seems that from the year 1944 upto the year 1972, no dispute was raised by anyone. All throughout since 1944 the lands in question continued to be in the name of the State Government in the respective records. On a specific point raised by this Court, as to whether the said Shamrao Velkar continued to pay the land revenue after 1944 or whether his heirs have also paid the land revenue to the State Government, Mr. Kotwal has rightly submitted that this fact is not within the knowledge of respondent No.3, as respondent No.3 has purchased the property in court auction later on. However, even the learned counsel appearing for the Government is also not in a position to point out that any land revenue was paid either by original lessee or by his heirs after the said entry was posted in the name of the State Government in the year 1944. It is significant to note that during his entire life time the original lessee Shamrao Velkar never filed any proceedings asserting his right after the so called termination of his lease in the year 1944 on the basis of which a revenue entry was posted by the concerned officer in the revenue record. After his death, his heirs initiated proceedings inter se in which a consent decree of partition was passed wherein the State Government was not even made a party. On the basis of the said decree, the land in question was put to auction in which respondent No.3 purchased the land in auction. The question which requires consideration is if Shamrao Velkar was not having any right at the relevant time, whether his heirs could have instituted the suit for partition of the very land in question in which a decree was passed. The heirs of the deceased could not have a better right than what their predecessor i.e. Shamrao Velkar was having.

29. It is not in dispute that Shamrao Velker has never asserted his right till his death claiming any right in the land in question. In our view, the proceedings initiated by the Sub-Divisional Officer under Section 20(2) of the Code, prima facie, was only with a view to help respondent No.3. Much prior to initiating proceedings under Section 20(2) of the Code, the land had already been entered into the name of the Government in the revenue record. There is not a single piece of document which shows that Shamrao Velkar continued to be in possession after 1944 even for a day. As stated earlier, it is clear that even no land revenue seems to have either been paid by Shamrao Velkar or by his heirs, this negates the fact that they were in possession of the land in question as lessee. Considering the said aspect, the Commissioner, with a view to protect the right of the State, took the matter in revision suo motu under Section 257 of the Code. The Commissioner in his order dated 13th September, 1988 observed that in the year 1969 the city survey enquiry was done in respect of the lands and it seems that though the land stood in the name of Government a dispute was raised by the members of the Velkar family claiming a private right over the lands. It is necessary at this stage to refer the relevant observations made by the Commissioner which read thus :

"In 1969, the City Survey enquiry was done in respect of the lands. It seems that though the lands stood in the name of Government a dispute was raised by the members of family of Velkar claiming a private right over the lands. The Enquiry Officer, therefore, conducted an enquiry which is an enquiry under Section 37(2) of the Bombay and Revenue Code then in force. The record produced before me shows that the Akarband of the village makes a mention that the impugned lands were declared by the Enquiry Officer as Government "Khajan". Thus from 1944 onwards both by the Collector's order in 1944 and by the Enquiry Officer's order in 1969, the lands were declared as Government land and stood in the name of Government. Both the above said orders of the Collector and the Enquiry Officer were not contested by the respondents and, therefore, have become final."

30. As per the order of the Commissioner, earlier an enquiry was held under Section 37(2) of the Bombay Land Revenue Code, which was then in force. In that enquiry it was held that the land in question is khazan land. It is surprising as to how subsequently a similar enquiry was held under Section 20(2) of the Code at the instance of respondent No.3. It is required to be noted that the Commissioner has specifically found that the concerned respondents had never raised dispute over the land. Detailed reasons have been given by the Commissioner in this behalf. The Commissioner has also considered the fact that so far as earlier order of Bombay High Court in the year 1900 is concerned, it was in connection with the breach of condition at the relevant time but in 1944, the lease was again cancelled for which though no order is available on record. Ultimately an entry was posted in the revenue record showing the State Government as the owner which entry was never challenged till respondent No.3 filed proceedings in the year 1998 for entering its name. The Commissioner had also considered the fact that land bearing Survey Nos.268 and 269 came to be forfeited to the Government by the order dated 3rd July, 1944 passed by the Collector for breach of conditions of the lease. As pointed out earlier, even no revenue was demanded either from the original lessee or from his heirs all throughout on the ground that the lease was already terminated and possession no longer remained with the said Velkar. Though the original order dated 3rd July, 1944 cancelling the lease is not available because of passage of time, the fact remains that entry to that effect is already posted in the year 1944 itself and a presumption can be drawn under the provisions of Section 114 of the Evidence Act that the entry which is already posted in 1944 must have been based on the basis that the lease in favour of Shamrao Velkar was continued and possession has been taken by the Government in the year 1944. The respondent No.3, therefore, cannot take advantage of the fact that since the original order dated 3rd July, 1944 is not available on record, there was no termination of lease and Shamrao Velkar, the lessee continued to be in possession.

31. It is required to be noted that the order of the Commissioner was not challenged for more than seven years and, therefore, the entry continued in the name of the State Government. It appears from the noting of the minutes produced on record, which is not in dispute, a meeting was held on 30th May, 1996 presided over by the then Chief Minister, for the project of Esselworld. As per the said noting, Shri. Narayan Rane, the then Revenue Minister was present in the meeting with other officers. As per para 4.2 of the minutes it has been recorded that the Secretary, Law and Judiciary Department of the State Government had submitted that the matter was sub-judice and pending in Court, discussions on the same was therefore not proper and that the Esselworld ought to withdraw the same and the State Government ought to decide the issue of condonation of delay. The opinion of the Chief Secretary is also recorded to the effect that the Revenue Minister cannot decide the matter contrary to the stand taken by the Department before the High Court. In the minutes, there is also reference about the opinion of the Chief minister to the effect that since the land belonging to Esselworld is adjacent to the Government land, it can be given preference in the matter of allotment. The Chief Minister has clearly stated that if Esselworld admits that the said land belongs to the State Government or that it is a Government land and that they do not have leasehold or tenancy rights in respect thereof , then a decision to give them the said land can be taken but consent terms in the pending matter before the High Court would have to be filed.

32. On the basis of the aforesaid minutes, which is recorded on the basis of the meetings held, respondent No.3 thereafter approached this Court in the pending suit. This Court recoded the statement of the learned counsel for respondent No.3 as also the learned Government Pleader. It is interesting to note that in the appeal filed by respondent No.3, which was filed after more than eight years of the order of the Commissioner, respondent No.2, who was Revenue Minister at that time, decided the appeal by passing an order in favour of respondent No.3. The relevant provisions of the Code regarding Appeal are as under :

"248. Appeal when to lie to State Government. An appeal shall lie to the State Government from any decision or order passed by a Commissioner or by a Settlement Commissioner or by a Director of Land Records, or by a Deputy Director of Land Records invested with powers of Director of Land Records, except in the case of any decision or order passed by such officer on appeal from a decision or order itself recorded in appeal by any officer subordinate to him.

249. Appeal against review or revision:- (1) An order passed in review varying or reversing any order shall be appealable in the like manner as an original decision or order.

(2) An order passed in revision varying or reversing any order shall be appealable as if it were an order passed by the revisional authority in appeal.

250. Periods within which appeals must be brought:- No appeal shall be brought after the expiration of sixty days if the decision or order complained of have been passed by an officer inferior in rank to a Collector or a Superintendent of Land Records in their respective departments; nor after the expiration of ninety days in any other case. The period of sixty and ninety days shall be counted from the date on which the decision or order is received by the appellant.

In computing the above periods, the time required to obtain a copy of the decision or order appealed against shall be excluded -

251. Admission of appeal after period of limitation :- Any appeal or an application for review under this Chapter may be admitted after the period of limitation prescribed therefor when the appellant or the applicant, as the case may be, satisfies the officer or the State Government to whom or to which he appeals or applies, that he had sufficient cause for not presenting the appeal or application, as the case may be, within such period."

It is required to be noted that the impugned order passed by respondent No.2 does not indicate as to under which provisions of the Code that the power was exercised. As quoted above, Section 250 of the Code provides for limitation of 60 days in preferring an appeal and there is a provision for condonation of delay in Section 251 of the Code.

33. The appellate authority who is required to hear the appeal is discharging quasi judicial functions. Deciding the appeal cannot be said to be an empty formality. The appellate authority is not expected to pre-judge the issue while deciding the appeal as the appeal is to be decided in an objective and impartial manner. From the facts stated above, it is abundantly clear that a decision was already taken to permit respondent No.3 to file an appeal and to decide the appeal in a particular manner. Respondent No.2, whilst exercising the powers of the State Government, in our view, has clearly misused the power by deciding the appeal in the manner in which he has decided. Respondent No.2 having participated in the meetings wherein deliberations regarding allotment of land to respondent No.3 had taken place as also filing of Appeal by respondent No.3 has ultimately heard and decided the appeal which appeal, in our view, can only be said to be an invited appeal from respondent No.3. It is to be noted that a Minister of a concerned department decides the appeal exercising the powers of the State Government, it is trite that the appellate authority while deciding an appeal is required to decide the appeal as per the evidence available on record. Filing of an appeal in this case by respondent No.3, in view of what is stated above, is nothing but a farce, as a decision had already been taken in advance, by which respondent No.3 was assured that respondent No.3 may prefer an appeal which will be decided in its favour. It is required to be noted that respondent No.2 has just mechanically passed the impugned order without bothering about the fact whether the appeal which was filed after eight years could be entertained and whether any order of condonation of delay was required to be passed. In view of what is stated above and considering the factual aspects of the matter, it hardly leaves any doubt that filing of the appeal and the decision of the appeal was all a stage managed affair. In our view, respondent No.2 should not have decided the appeal and should have recused himself from deciding the said appeal as he was party to the earlier discussions which had taken place in the meetings. Transparency in all government actions and in all quasi-judicial orders is a must. It is thus clear that objectivity in deciding the appeal was not at all there at the time when respondent No.2 decided the appeal.

34. While considering the case on merits, as we have already indicated earlier, there is nothing on record since 1944 that deceased Shamrao Velkar had ever asserted his right in any manner in connection with the land in question. His heirs therefore could not have filed the suit in which a consent decree came to be passed. The deceased had accepted the entry posted in the revenue record in 1944 and obviously, therefore, no attempt was ever made by anyone to pay the land revenue. The matter does not rest here. It is required to be noted that in a pending civil suit being Suit No.1161 of 1989, a written statement has already been filed on behalf of the State Government. The said written is filed in the year 1993. The averments in the suit has been dealt with in greater detail wherein there is a reference of an earlier enquiry under the Code. In paragraph 11 of the written statement it is averred that there is no material placed on record indicating that the plaintiffs or their predecessor in title have paid any assessment in respect of the said lands. This averment has been made in view of the stand taken by the Government that for non-payment of land revenue the lease was forfeited in the year 1944. In the earlier proceedings initiated in the year 1900, it has been pointed out that the same was entirely on a different footing. In para 22 of the written statement it has been stated that the plaintiffs (respondent No. 3) had no right to apply for entering their name in the revenue records to the Tahsildar, Borivli or to any other authority. The entries in the record of right stand continuously from 1927-1944 showed that the said lands stood in the name of the Government with sufficient notice to all concerned that the said lands do not belong to anybody except the State Government and cannot be sold by anybody except the State Government. In various other paragraphs of the written statement, the State Government has resisted the claim of respondent No.3 by giving appropriate details in the written statement. In paragraph 39 of the written statement it is stated that the suit lands are extremely valuable and the provisional valuation by the Town Planning Department indicates that the value of the suit land was Rs.139,30,50,000/- (at Rs.50 lakhs per hectare). The written statement is of 40 paragraphs and in minute details all the averments made in the plaint have been dealt with and the State Government has asserted its right over the disputed land by giving appropriate details in various paragraphs of the written statement. A pointed question was asked by the Court to the learned Counsel appearing for the Government as to whether the averments made in the written statement are correct or whether the decision taken by the Minister stating that the Government has no right over the land is correct. However, he has fairly submitted that this aspect is left to the Court for its decision. If the averments made in the written statement are false, naturally it would amount to making false statements in the written statement.

35. It is unfortunate that even though the Government has taken the stand in the written statement filed in a pending suit that the said lands belong to the State Government, respondent No.2 while deciding the appeal has not considered the said aspect and has recorded findings diametrically opposite to the stand in the said written statement. Though the revenue entries are only for fiscal purpose and no title is decided by the same, yet the manner in which respondent No.2 has passed the order and considering the contents of the said order, in our view, the said order is required to be set aside forthwith as it cannot be said to be a decision at all in the eye of law. It is not possible for us to accept the decision arrived at by respondent No.2 as it hardly inspires any confidence. Apart from that, when a substantive title suit filed by respondent No.3 is pending and sub-judice before this Court, yet respondent No.2 decided the appeal. It is unfortunate that while deciding the appeal by respondent No.2, the observations made in the interim order passed in the said suit have not been taken into consideration.

36. In a democratic society, the Government is acting for the benefit of the people as the Government is of the people, by the people and for the people. The Government and the Executive are acting as trustees of the citizens and when they deal with the government property, no attempt should be made to commit breach of such trust. Every citizen in that respect has interest in the public property. Nobody can make any attempt to gift away the public property. When a civil suit is pending for title before this Court and when a particular stand was taken in the written statement, it was not expected on the part of the State Government to take such type of decision ignoring the stand of the Government in the pending suit and even interim orders passed by the Court in the said suit. Respondent No.2 has gone to the extent of deciding the appeal by holding that the title no longer vests with the Government which decision, in our view, is contrary to the record and stand taken by the Government in the written statement filed in the pending suit.

37. In view of the fact that since respondent No.2 has not considered all the relevant facts while deciding the appeal which was time barred and also the fact that respondent No.2 has taken part in the meetings previously held regarding the same subject matter, in our view, the order passed by respondent No.2 is not sustainable and is, therefore, required to be quashed and set aside. The writ petition is accordingly allowed by setting aside the order passed by respondent No.2 dated 29th April, 1997, at Exhibit-B to the petition. It will be open to the petitioners to take out appropriate proceedings for other reliefs made in this petition. Needless to say that our instant order is confined only to the legality, validity and propriety of the order passed by respondent No.2 which, for the reasons mentioned hereinabove, we have quashed and set aside. We make it clear that the pending Suit No.1161 of 1989 may be decided on its own merits and in accordance with law.

38. Rule is made absolute to the aforesaid extent with no order as to costs.

39. At the request of the learned counsel appearing for respondent No.3, this order is stayed for a period of two months from today.

Petition allowed.