Order confirming land holding of possessor cannot be challenged after 55 years: HC

The BMC had sought revision of the 55-year-old order as it had used up 65 acres of the land to construct a sewage treatment plant

Mumbai In a major relief for nearly 8,000 flat and shop owners located in the upmarket Lokhandwala and Oshiwara area, who were at the risk of losing their rights on their premises after the BMC challenged the ownership of the land on which the residential and commercial premises were located, the Bombay high court (HC) recently set aside a state government order which permitted the BMC to seek revision of a 1965 order which had decided the issue of ownership of 723 acres of land.

The 8,000 affected persons had approached the HC through their societies and firms challenging the state government’s permission for revision on the grounds that if the revision went in favour of the BMC, they would lose ownership. (Vijay Bate)

The BMC had sought revision of the 55-year-old order as it had used up 65 acres of the land to construct a sewage treatment plant and the firm in whose name the land had been vested by the British in 1860 was demanding compensation.

The 8,000 affected persons had approached the HC through their societies and firms challenging the state government’s permission for revision on the grounds that if the revision went in favour of the BMC, they would lose ownership.

The HC held that BMC’s application for revision and the following permission granted by the state government, was not valid as it was beyond the five-year limit for revision prescribed by the Maharashtra Land Revenue Code.

The division bench of justice R D Dhanuka and justice M G Sewlikar, which had heard a bunch of petitions filed by various societies located in Lokhandwala Complex and Oshiwara (Oshiwara village) area, was informed that all the petitions were challenging the January 8, 2021 decision of the state government which permitted the divisional commissioner, Konkan division, to decide on the revision application of the BMC which challenged the January 9, 1965 order of the additional collector. The bench had concluded the hearing of the petitions on July 5 and pronounced the order on August 29.

The various societies and firms which challenged the state government decision included Pankaj Unit No 1 and 2 Housing Development Company Private Limited and Samarth Development Corporation represented by senior advocate Vineet Naik along with advocate Kunal Dwarkadas, Oshiwara Land Development Company Private Limited represented by senior advocate Zal Andhyarujina, along with Ayaz Bilawala and Apna Ghar (West) CHS Association Ltd., Apna Ghar (East) CHS Association Ltd., and The Samarth Nagar Lokhandwala Complex Co-operative Housing Societies Association Ltd represented by advocates Kunal Bhanage along with Akshay Pawar and Anish Khandekar.

While challenging the state government order and BMC application, the societies submitted before the HC that the grounds stipulated under the MLRC for revision of the additional collector’s order of 1965 were not fulfilled and the BMC could not seek revision of a decision after 55 years when the MLRC permitted a period of only five years. The society also argued that its members had invested a lot of funds into buying the residential and commercial premises and if the 723 acres became vested with the BMC, they would become landless and it would be unfair for them.

“There are 116 members societies and 138 buildings comprising of 8,077 residential and commercial premises accommodating lakhs of families which would be seriously prejudiced if the impugned order passed by the State Government granting permission to initiate revision application is not quashed and set aside,” submitted the counsels for the petitioners.

Even though the counsels for the state and BMC submitted that the delay could be condoned in the larger interest of public, the bench upheld the contentions of the societies and firms and noted in its order, “In the last 55 years, a large number of buildings have already been constructed on the plots which were the subject matter of the proceedings under the Salsette Estates Act before the Mamlatdar at the first instance and then the before the Additional Collector. The flat purchasers have purchased a large number of tenements and have settled down in the properties acquired by them.”

The bench opined that if the order of the state government in favour of BMC was allowed it would create a serious prejudice and said, “In our view, the grant of permission by the State Government mechanically amounts to gross abuse of process of law and the Municipal Corporation has attempted to unsettle the settled rights of the petitioners and a large number of flat/unit purchasers which are not permissible in law.”