Full Judgment Text
Non-Reportable
I N THE S UPREME C OURT OF I NDIA
C IVIL A PPELLATE J URISDICTION
C IVIL A PPEAL N O . 10425 OF 2010
STEEM ROPERTIES VT TD PPELLANT
E P P . L . …A
ERSUS
V
C HETAN K AMBLE & O RS . …R ESPONDENTS
WITH
IVIL PPEAL O OF
C A N . 10764 2010
C ORAL G ONSALVES & O RS . …A PPELLANTS
V ERSUS
HETAN AMBLE RS ESPONDENTS
C K & O . …R
J UDGMENT
N. V. R AMANA , CJI
1. The present appeals have been preferred against the
judgment dated 07.05.2010 passed by the Bombay High
Court in a Public Interest Litigation, being PIL No. 47 of
2008.
Signature Not Verified
2. The matter pertains to rights and ownership over the
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.02.28
17:03:21 IST
Reason:
subject land admeasuring 5 acres and 20 gunthas in CTS
1
No. 229 (in short ‘subject land’). The dispute regarding title
was originally between one Gonsalves family (appellants in
C.A. No.10764 of 2010) and the State of Maharashtra
(respondent no.3). Esteem Properties Pvt. Ltd. (appellant in
C.A. No.10425 of 2010) is the successorininterest to the
Gonsalves family.
3. Before we analyze the case, the facts necessary for the
disposal of the case are as follows: From 1819 onwards, the
land belonged to the Khot of Kurla, as per a grant made to
them by the East India Company under a Deed. The
appellants’ purported predecessorininterest became the
absolute owners of the subject land by way of a Deed of
Exchange dated 12.03.1894, wherein the title of the land
vested in the ancestors of the Gonsalves family.
4. On 25.11.1953, in an enquiry under the Salsette Estate
(Land Revenue Exemption Abolition) Act, 1951 for all the
land belonging to the Khot, the land in question was
declared as Government land. The successors of the Khot
(viz. A.H. Wadia Trust) preferred Civil Suit No. 921 of 1954
against such finding, which was subsequently settled by a
2
Consent Decree dated 02.05.1963. The Consent Decree
affirmed the findings in favour of the State under the
Salsette Estates Act. It must be noted that the Gonsalves
family were not a party to the decree or the proceedings.
5. In 1962, another enquiry (‘City Survey enquiry’) was
conducted under Section 126 of the Maharashtra Land
Revenue Code (‘MLR Code’) for the entire Mumbai Suburban
District. Vide order dated 27.02.1969, the Enquiry Officer
held that the land vests in the State Government. The order
was confirmed in appeal by the SubDivisional Officer on
30.04.1970.
6. The Gonsalves family preferred Civil Suit No. 698 of 1971,
stating that the orders passed in the City Survey enquiry
were void and illegal, and that the Consent Decree dated
02.05.1963 was not binding on them. Subsequently,
proceedings under Section 20(2) of the MLR Code were
initiated by the SubDivisional Officer and a fresh enquiry
was conducted. In light of the aforesaid enquiry under
Section 20(2) of the MLR Code, Civil Suit No. 698 of 1971
became redundant.
3
7. The SubDivisional Officer, vide order dated 07.11.1988,
declared the subject land as State land. This was confirmed
in appeal by both, the Additional Collector on 19.12.1989
and the Additional Commissioner, Konkan Division on
30.08.1991.
8. Against the said order of the Additional Commissioner,
Konkan Division, the Gonsalves Family preferred a Revision
Application before the Revenue Minister. Vide order dated
11.10.1995, the Revenue Minister allowed the Gonsalves
family’s revision application and held that they were the
absolute owners of the subject land on the basis of the 1894
Deed of Exchange. The Revenue Minister concluded that
occasion to hold the 1951 enquiry under the Salsette
Estates Act did not arise as the land in question had
become private land. It was also observed that the land
which vested in the State was some other land, not the
subject land. It may be relevant to note certain observations
made in the aforesaid order, which read as under:
“22. On going through the evidence and documentary
record in particular I am convinced that Shri Gonsalves
& Others have proved their possession on this land.
Though Shri Gonsalves has not produced a copy of
Deed of Exchange signed between him and Shri Wadia
4
in 1894, the same deed was accepted by the
representative of Shri Wadia before the Lower Court.
The Statement recorded before the lower courts clearly
indicate the existence of deed of exchange of 1894.
23. The appellant have also proved that they are in
correspondence with the Revenue Authority since 1943
requesting them to show their name in Record of Right.
However, till now they are treated as encroacher on this
land.
24. The possession of the appellant on this land is
proved beyond doubt. Whether the appellants’
possession is authorized or he is an encroacher is to be
decided on the basis of evidence. One fact of the case is
that this land is not Government land before 1951, as it
was owned by Shri Wadia. The land was declared as
Government land in the year 1954. However, the
possession of the appellant on this land is much before
1951, hence the appellant cannot be treated as
encroacher on the Government land.
25. The question to be decided now is whether the
land in possession of Shri Gonsalves & Others is the
same land which is declared as Government land in the
consent terms. The consent terms are silent on this
issue. Only part of the land of Survey No. 90 is declared
as vested in Government. Shri Gonsalves has proved
his possession and hence the land in the possession of
Shri Gonsalves before the consent terms could not be
declared as Government land. As per the provisions of
Salsette Inam Abolition Act 1951. The Act clearly lays
down that the lands which are [ not ] appropriated to any
individual or Khot vest in Government. However, here
the possession of Shri Gonsalves is proved and hence
this land cannot be treated and has not appropriated
and vested in Government. Shri Gonsalves has proved
their possession to Shri Wadia, exowner of the whole
village. Thus the land which are declared as
Government land as to which different land than which
is in possession of Shri Gonsalves.
26. In view of the above discussions I have no
hesitation in coming to the conclusion that the land
comprised in C.T.S. 229 has been in possession of Shri
Gonsalves & Others. Since year 1894 when the deed
was exchanged and signed. Thus this land become a
5
private land and the question of making enquiry under
section 4 of Salsette Estate Act, 1951 in respect of this
land does not arise.
27. I have also come to the conclusion the land who
vested in Government are the land other than C.T.S.
No. 229. The consent terms of 1954, does not identify
and locate the land. I, therefore, hold that all
authorities before they have erred in treating C.T.S. No.
229 as Government land.
28. I have no hesitation in holding that the petitioner
are in possession of land before C.T.S. No. 229 and it is
their private property.”
29………..
ORDER
The revision petition is allowed, Order of all authorities
below are set aside, I hold and declare that petitioners
are owners of the land admeasuring 5 Acres and 20
gunthas comprised in CTS 229, at Village Sahar,
Taluka Andheri, Bombay Suburban District.”
9.
Subsequently, by an exparte order dated 17.03.1998, the
Revenue Minister set aside the aforesaid order and restored
the order of the Additional Commissioner, Konkan Division
dated 30.08.1991 vesting the land in the State. It may be
relevant to note that no notice was issued to the Gonsalves
family in the aforesaid review proceedings under Section
258(1) of the MLR Code. We may also note that notice was
issued to one Mr. S. Kapoor, who was not the Power of
Attorney holder at the relevant time. His Power of Attorney
6
was cancelled by the Gonsalves family on 05.12.1996. To
this extent, the order itself notes as under:
“..In all these matters, as nobody remained present for
the hearing on behalf of Smt. Koleti, an exparte
decision had been [ taken ] in this matter.”
10. Esteem Properties Pvt. Ltd. (appellant in C.A. No. 10425 of
2010), successorininterest of the Gonsalves family, filed a
Writ Petition before the Bombay High Court seeking review
of the exparte order dated 17.03.1998 wherein the
Gonsalves family was also joined as a party. Vide order
dated 22.09.2006, the High Court directed to maintain
status quo and to inform the Court if there was any change
in the circumstances.
11. On 12.06.2007, Esteem Properties succeeded the Gonsalves
family with respect to the land in question. An Agreement to
Sell dated 22.02.1996 was executed between the two
appellants, when Esteem Properties made an initial
payment of Rs.1 crore. Subsequently, Esteem Properties
filed a suit for specific performance in respect of the said
Agreement, which was finally settled in accordance with the
Consent Terms recorded by the Bombay High Court in the
order dated 12.06.2007. Through the aforesaid decree,
7
Esteem Properties is said to have become absolute owners
of the land in question. In these changed circumstances,
i.e., transfer of ownership or the appellants coming together,
Esteem Properties moved a Notice of Motion in the writ
petition, wherein the Bombay High Court vide order dated
17.08.2007, while dismissing the Notice of Motion granted
Esteem Properties liberty to make a representation before
the appropriate authority.
12. Thereafter on 10.12.2007, on a Revision Application moved
by Esteem Properties, the Revenue Minister recalled the ex
parte order dated 17.03.1998 and restored the order dated
11.10.1995. It was held that the exparte order was void ab
initio , as it was against the principles of natural justice
since the Gonsalves family were not given an opportunity of
hearing. It was also observed that Section 258 of the MLR
Code requires notice to be served upon the affected party,
which was not so done.
13. In February 2008, respondent nos. 1 and 2 filed a Public
Interest Litigation challenging the Revenue Minister’s order
of 10.12.2007. It must be noted that the State did not
8
initiate any proceedings against such an order. It is matter
of record that the State had itself filed a counteraffidavit
dated 12.06.2008 stating that the Revenue Minister’s order
dated 17.03.1998 needed to be recalled as it was passed in
the absence of the affected party, i.e. the Gonsalves family.
The relevant portions of the counteraffidavit read as under:
“6. In so far as the averments in para 6 of the memo of
Petition are concerned, I say that the petitioners seem
to have overlooked the fundamental difference between
a power of review and power of recall. I say that in
th
view of the fact that the earlier order dated 17 March
1998, was an order passed in the absence of original
land owners and without hearing them and was thus
an exparte order, the said order has merely been
th
recalled by the order dated 10 December 2007. I say
that that the earlier order dated 17.3.1998, was
recalled as the same was an exparte order. I say that it
is a settled position of law that there is a fundamental
difference in exercising a power of review on merits
and in exercising the power of review on account of
procedural infirmity. I say that the procedural review
belongs to a different category. In such a review, the
court or quasi judicial authority having jurisdiction to
adjudicate proceeds to do so, but in doing so commits,
a procedural illegality which goes to the root of the
matter and invalidates the proceeding itself and
consequently, the order passed therein also becomes
invalidated. I say that when it is revealed that a
decision is given by a quasi judicial authority without
notice to the opposite party or under mistaken
impression that the notice has been served upon the
opposite party a power of procedural review is required
to be invoked. ….I say that once it is found that the
order was passed in the absence of an affected party,
the order has to be recalled. I say that the order dated
10.12.2007, passed by the Quasi Judicial Authority
clearly records that at the time of passing of the earlier
order dated 17.3.1998, the fact that the original land
owners or their new constituted attorney had not been
9
given any notice but the notice had been served on the
earlier constituted attorney Shri Kapoor is specifically
recorded. I say that in fact, the earlier order dated
17.3.1998 passed by the State Government itself
records that since nobody remained present for the
hearing on behalf of Smt. Colette, an exparte decision
had been taken in the said matter. The order further
records that as no representative remained present at
the time of hearing on behalf of M/s Anjali Real Estate
Pvt. Ltd. The Government took an exparte decision.
The order further records that no clarification
whatsoever from them in that regard was received. I
say that when it was brought to the notice of the State
Government, that the original land owners had not
been given notice but the notice was served only on
their previously constituted attorney, it was apparent
that the earlier order suffered from a procedural lapse,
viz., breach of Rules of Natural Justice and hence, by
exercising the aforesaid power of procedural review,
th
the earlier order dated 17 March 1998 has been
recalled.
………
8. In so far as the averments in paragraph 9 of the
memo of writ petition are concerned, I say that
according to the available records, it is seen that an
area of 5 acres 20 guntha from Survey No. 98 of
Village Sahar was the subject matter of a Deed of
Exchange.
…..
11. I say that the available record further indicates
that though the land admeasuring 5 acres 20 gunthas
was given to the members of Gonsalves Family,
apparently by a Deed of Exchange in the year 1894,
the said Gonsalves Family was not a party to Civil Suit
No. 921 of 1954 and the consent decree passed in the
said suit was thus passed behind their back.
12. In so far as averments in para 12 to 15 of the
memo of Writ Petition are concerned, I say that in the
City Survey Inquiry which was conducted in the year
1965 or thereabout, the members of the Gonsalves
family who are seen to be in actual possession of the
said land admeasuring 5 Acres 20 gunthas produced
10
substantial documentary evidence showing their
cultivation and possession and also showed that a
portion of land was being used by them for brick kiln
activity.
……….
14. … I say that the then Hon’ble Revenue
Minister on the basis of available evidence on record
has reached a conclusion that the members of
Gonsalves family were in possession of the said land
much prior to 1951 when the Salsette Estate (Land
Revenue Exemption Abolition) Act, 1951 came into
force and hence, their possession of 5 Acres 20
gunthas in respect of land bearing C.T.S. No. 229
cannot be termed as encroachment as the land was a
private land.
…….
16. In so far as the averments in paras 23 and
24 of the memo of Writ Petition are concerned, I deny
that the order passed by the State Government is
contrary to the provisions of the Maharashtra Land
Revenue Code as alleged. I say that the order dated
10.12.2007 is not an order of review on merits but
the same is really an order passed by exercising the
power of recall in quasi judicial capacity on account of
procedural infirmity as indicated herein above and
not a review on merits as is being wrongly contended
and is being wrongly misconstrued by the Petitioners.
I say that the allegation of suspicious situation are
factually incorrect and in fact the order dated
10.12.2007 is a speaking order which is passed after
taking into consideration the fact that the earlier
th
order dated 17 March 1998 was an exparte order
and after taking into consideration the written opinion
which was produced on behalf of the Applicants
before the State Government which clearly
distinguishes about the powers of Review and Recall.
(emphasis supplied) ”
14. In any case, the Bombay High Court allowed the Writ
Petition preferred by the respondent nos. 1 and 2 by order
dated 07.05.2010, which is impugned herein. The Bombay
11
High Court restored the exparte order of 17.03.1998, i.e.,
the land vests with the State Government, subject to the
outcome of Civil Suit 698 of 1971 preferred by the
Gonsalves family. While coming to the aforesaid conclusion,
the impugned order notes as under:
“10. Subsequent to the withdrawal of the Motion an
application was moved by Esteem Properties Private
Limited before the Minister for Revenue. Gonsalves
family were not the applicants in the said application.
Except for the agreement to sell with the Gonsalves
family, Esteem Properties Private Limited had no
other right to the property. The learned Minister
proceeded to hold that the Power of Attorney given to
Shri Kapoor has been cancelled by the Gonsalves
family and a suit had been filed before this Court and
this Court (Writ Petition) had granted status quo and
this had not been taken into consideration by the
Minister. The order, therefore, it was submitted, is
against the principles of natural justice. It was noted
that under Section 258 it was necessary to give a
hearing. It is not necessary to go into this aspect as
the earlier order of the Minister shows that notices
were sent. It was noted that Shri Gonsalves or the
Power of Attorney of Gonsalves had agreed that the
land was of the Government and had required to be
given on lease. The Minister then proceeded to hold
that the High Court had sent the matter to the
Government for decision and as opportunity had not
been given to the original Revenue Applicants,
reviewed the earlier order. Whilst reviewing the order
set aside the earlier order. P.I.L. has been filed against
the said order.”
The High Court framed three questions, which were:
12
“1. Whether the petitioners have locus standi to
maintain this petition?
2. Whether a person who was not a party to the
revision proceedings without succeeding to the
property from the original applicant merely based on
an agreement to sell could have maintained the
second Review Application (Procedural Review)?
3. Whether it was open to the Minister in exercise of
review (substantial review) moved at the instance of
the State Government when there was a consent
decree holding that the land have vested in the
Government and further as the title to the land,
being the subject matter of a civil suit by persons
claiming to be the owners (Gonsalves family) other
than on the Deed of Exchange could have passed an
order, decreeing the land to be entered in the
revenue records in favour of such owners and
against the Government without the consent decree
of 1953 being set aside in the suit which was
pending?
Regarding the first question on locus standi, the High Court
observed as under:
“ 13 . (…) In our opinion, merely because against the
petitioner No. 1 there were and/or are some criminal
cases by itself can be no reason for this Court not to
entertain the petition if in law otherwise the petition
raises questions which can be considered in a P.I.L. The
challenge no doubt is to a quasi judicial order, but the
larger question is, when a quasi judicial authority, holds
land which has vested in the State Government as not
public land and the State Authorities take no steps to
challenge an order which would result in affecting the
public revenue, can locus be denied to public spirited
citizens who bring these facts to the notice of this Court.
Can such an order be allowed to stand, if it otherwise be
illegal and can not this Court in the exercise of its extra
13
ordinary jurisdiction of superintendence interfere with the
same.”
The High Court answered the second question in the
following terms:
“18. Was the Review Application maintainable at the
instance of Esteem Properties Private Limited and
another? Review under Section 258 lies at the instance of
a party interested. The substantive review was not
preferred by Esteem Properties. What they preferred is
the procedural review. The order states that notices were
served on the Gonsalves family. Whether in fact they were
served, the material before us does not show whether the
observations in the order are correct. The only persons
who can complain of no notice are the persons who were
parties to the proceedings. Gonsalves family did not move
the authority for procedural review. More importantly the
order was the subject matter of a pending Writ Petition.
th
Order dated 17 March, 1998 was the subject matter of a
petition filed not by the Gonsalves family, but by Esteem
Properties Private Limited and another in the year 2006.
The Motion taken out being Notice of Motion No. 333 of
2007 which was withdrawn to make representation before
the Competent Authority was allowed by order of this
th
Court dated 17 August, 2007. That would not mean that
if otherwise there was no locus an order of the Court
would give locus to such a party to maintain a review
petition. The Review Application was made thereafter
again by Esteem Properties Private Limited and not by
Gonsalves family. The matter was pending and status quo
had been ordered. Even the power of procedural review
has to be exercised within reasonable time. When the
petitioner filed the petition before this Court if they were
entitled they could have moved the application for review.
That was not done. Instead they challenged the order by
petition before this Court by invoking its extra ordinary
jurisdiction. An application was thereafter moved only on
th nd
17 August, 2007. The petition itself was filed on 22
June, 2006. Ordinary time of filing Review is within 90
14
days from the date of the order. In instant case the
petitioners cannot contend that they had no knowledge.
The issue of petitioners having knowledge would not arise
as they were not parties and question of giving notice to
them consequently would not arise. Procedural review
has to be by parties to the original proceedings. Esteem
Properties were not parties to the proceedings. They
would have no locus standi to file the procedural review.
In our opinion, therefore, this was not a case where the
Minister could have exercised his review jurisdiction on
two counts (i) that there was a delay and (ii) that the
Esteem Properties Ltd., had no title to the land on the
date the application for review was made and they were
not parties to the proceedings. There were proceedings
between them and the Gonsalves family for enforcement
of the agreement. They, therefore, could not have
complained that no notice was given to them. They
therefore, had no locus to maintain the review. Further
this Court was seized of the matter and had admitted the
petition. In our opinion, on this ground itself the
impugned order is liable to be set aside and the original
order passed in the review restored.”
In response to the third question, the High Court observed
as under:
“ The issue also raises a larger question as to
19.
whether the Authorities under the Maharashtra Land
Revenue Code when the issue of title is in issue before
the Civil Court could have bypassed those
proceedings and proceeded to pass an order in favour
of the Gonsalves family. The first order of the Minister
th
was passed on 11 October, 1995 allowing the
Revision Application preferred by the Gonsalves
family. That order was totally perverse on two counts.
The Gonsalves family had filed a suit bearing L.C.
Suit No. 698 of 1971 which was pending before this
Court wherein they have claimed a prayer to declare
them as owners. This was because the Revenue
15
Authorities had held that they had no title to the land
and they were encroachers upon the land. In the suit
the claim to the land was that they were in open
possession, for more than 60 years, and had acquired
absolute title by adverse possession. They did not
claim right to the land based on the Deed of Exchange
which as rightly pointed out by the Revenue
Authorities was never produced. The mere statement
on the part of the Wadia Trust that there was a deed
of exchange in the absence of documents produced,
could not have been accepted when the Gonsalves
family themselves had not relied upon the said Deed
of Exchange in their suit. The land was earlier of the
Khot. The Gonsalves family, therefore, had to
establish their title by adverse possession. Secondly,
the Wadias in the consent terms filed in the suit filed
by them had admitted the right of the State to that
land under the Salsette Abolition Act. This was only
application of the authority under Salsette Act. Once
an order had been passed under the Salsette Act, the
Revenue Authority examining jurisdiction under the
Land Revenue Code could not hold that order could
not have been passed.
Material has come by way of affidavit in the
companion petition that the land is in occupation of
slum dwellers. In our opinion considering these
th
aspects the original order dated 17 March, 1998
passed in the review preferred by the Sate against the
order passed in Revision was correctly passed. The
question, therefore, of recalling the order and
upholding the earlier order in revision was really
arbitrary and per se illegal. In our opinion, the issue
being in issue before the Competent Civil Court at the
instance of the Gonsalves family, the Revisional
Authority ought to have declined to exercise
jurisdiction.”
15.
Aggrieved by the aforesaid order, the appellants have
approached this Court.
16
16. Mr. Mukul Rohatgi, learned Senior Counsel appearing for
the appellants in C.A. No. 10425 of 2010, has submitted as
under:
Respondent No. 1 herein (PIL petitioner in impugned
order) has an indecorous history with criminal
antecedents. Thus, the Hon’ble High Court grossly
erred in entertaining the PIL.
Allowing such a person to file PILs should be rejected
at the threshold, in line with the judgment of this
Court in
State of Uttaranchal v. Balwant Singh
Chaufal , (2010) 3 SCC 402.
The present dispute is only a dispute of ownership of
land between a private party and State Government,
wherein the High Court could not exercise PIL
jurisdiction – especially against a quasijudicial order.
No suit was filed against the order dated 11.10.1995
as provided under Section 20(4) of the MLR Code, and
therefore, such an order has attained finality. Despite
attaining finality, the Additional Collector filed a
17
delayed Review Petition, i.e. beyond the limitation
period of 90 days.
No notice was issued to the Gonsalves family in the
review proceedings, as is mandatory under Section
258(1)(ii) of the MLR Code. The review proceedings,
resulting in order dated 17.03.1998, were a result of
noncompliance of the provisions of the MLR Code.
The Hon’ble High Court erred in not appreciating that
the State Government itself filed an affidavit dated
12.06.2008 stating that the order dated 11.10.1995
was correct.
The State Government has also filed an affidavit dated
18.11.2010 before this Court stating that the
appellants were not given an opportunity of hearing
before the order dated 17.03.1998 came to be passed.
17. Mr. Rahul Chitnis, learned counsel appearing for the State
of Maharashtra, submitted as under:
The order passed by a quasijudicial authority cannot
be permitted to be challenged by a stranger and/or
third party to the proceeding in the guise of a Public
Interest Litigation.
18
On merits, he states that the effect of the order dated
10.12.2007 is that the earlier order dated 11.10.1995
stood restored.
18. Mr. Tapesh Kumar Singh, learned counsel appearing for the
respondent nos. 1 and 2 (PIL petitioners in the impugned
order), contended as under:
The respondent nos. 1 and 2 do not have any interest
in the private property. They moved the writ petition as
public property belonging to the State Government was
being transferred to private individuals and would lead
to loss of public revenue.
It was only the contrary orders passed by various
authorities that prompted the respondent nos. 1 and 2
to file such a petition.
19. Having heard the parties at length and on perusing the
records, the following questions arise for our consideration:
I. Do the respondent nos. 1 and 2 have sufficient
locus to maintain the aforesaid Public Interest
Litigation?
19
II. Is the order dated 10.12.2007 passed by the
Revenue Minister valid in law?
UESTION O
Q N . I
20. The appellants have primarily contended that the contesting
respondents do not have sufficient locus to maintain a writ
petition. They have alluded to the following cases filed
against the respondent no. 1:
(i) P.S. Chhawni C.R. No. 22/05 Sec 143, 147, 149, 427
of IPC, 135 Maharashtra Police Act (MPA)
(ii) P.S. Chhawni C.R. No. 55/05 Sec 337, 323, 341, 504
of IPC
(iii) P.S. Chhawni C.R. No. 56/05 Sec 395, 452, 147, 149,
427 of IPC
(iv) P.S. Chhawni C.R. No. 57/05 Sec 337, 143, 148, 149,
427 of IPC
(v) P.S. Chhawni C.R. No. 58/05 Sec 353, 332, 341, 224,
147, 148, 149 of IPC
(vi) P.S. Chhawni C.R. No. 59/05 Sec 143, 147,148,149,
338,342,504,506 of IPC
(vii) P.S. Chhawni N.C. No. 670/04 Sec 504, 506 of IPC
(viii) P.S. Chhawni N.C. No. 417/05 Sec 323, 504, 506 23 of
IPC
(ix) P.S. City Chowk C.R. No. 3016/2005 Sec 135 MPA
(x) P.S. Jincy C.R. No. 4/2005 Sec 353, 448, 504, 506, 34
of IPC
(xi) P.S. Cidco N.C. 5/2002 Sec 186 IPC (A.B are recorded)
(xii) PS. M. Cidco C.R. No. 59/2002 Sec 341, 143 IPC 135
MPA
(xiii) P.S. Chhawni C.R. No. 36/1994 Sec 420, 34 of IPC
20
In this regard, it is contended that the PIL filed before the
High Court was not maintainable, more so against a quasi
judicial order concerning title of a property.
21. Public Interest Litigation is not a new concept in this Court.
Although the jurisprudence in this regard has matured,
many claims filed in the Courts are sometimes immature.
Thousands of frivolous petitions are filed, burdening the
docket of both this Court and the High Courts. Noble
intentions behind expanding the Court’s jurisdiction to
accommodate socially relevant issues, in recent decades,
have been critically analyzed. In our view, PIL litigation has
had a beneficial effect on the Indian jurisprudence and has
alleviated the conditions of the citizens in general. For those
at the receiving end of the Court’s directions, we can only
advise “ C’est la vie” .
22. One of the measures this Court can adopt to ensure that
frivolous or private interests are not masqueraded as
genuine claims, is to be cautious when examining l ocus
standi . Generally, PIL, being a summary jurisdiction, has
limited powers to examine the bonafides of parties. It is
21
usually on the pleadings that the Court should take a prima
facie view on the bonafides of the party. If the Court
concludes that the litigation was initiated under the shadow
of reasonable suspicion, then the Court may decline to
entertain the claims on merits. In these cases, Courts have
multiple options – such as dismissing the PIL or appointing
an amicus curiae, if the cause espoused in the case requires
the immediate attention of the Court. [refer
T. N.
Godavarman Thirumulpad v. Union of India . (2006) 5
SCC 28]
23.
In the case of Balwant Singh Chaufal (supra), this Court
held as under:
“181. We have carefully considered the facts of the
present case. We have also examined the law declared
by this Court and other courts in a number of
judgments. In order to preserve the purity and sanctity
of the PIL, it has become imperative to issue the
following directions:
(1) The Courts must encourage genuine and bona fide
PIL and effectively discourage and curb the PIL filed for
extraneous considerations.
(2) Instead of every individual Judge devising his own
procedure for dealing with the public interest
litigation, it would be appropriate for each High Court
to properly formulate rules for encouraging the
genuine PIL and discouraging the PIL filed with oblique
motives. Consequently, we request that the High
22
Courts who have not yet framed the rules, should
frame the rules within three months. The Registrar
General of each High Court is directed to ensure that a
copy of the rules prepared by the High Court is sent to
the Secretary General of this Court immediately
thereafter.
(3) The Courts should prima facie verify the credentials
of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied
regarding the correctness of the contents of the
petition before entertaining a PIL.
(5) The Courts should be fully satisfied that
substantial public interest is involved before
entertaining the petition.
(6) The Courts should ensure that the petition which
involves larger public interest, gravity and urgency
must be given priority over other petitions.
(7) The Courts before entertaining the PIL should
ensure that the PIL is aimed at redressal of genuine
public harm or public injury. The Court should also
ensure that there is no personal gain, private motive or
oblique motive behind filing the public interest
litigation.
(8) The Courts should also ensure that the petitions
filed by busybodies for extraneous and ulterior motives
must be discouraged by imposing exemplary costs or
by adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous
considerations.”
24. In Jaipur Shahar Hindu Vikas Samiti v. State of
, (2014) 5 SCC 530, this Court reiterated the
Rajasthan
same, specifying that the concept of public interest litigation
23
has evolved to bring justice to people who are “handicapped
by ignorance, indigence, illiteracy” and observed that Courts
are required to be cautious while entertaining such
litigation.
25. From the above it is clear that the bonafides of the
respondent nos. 1 and 2 were not considered in a proper
perspective by the High Court. Even otherwise, it is this
Court’s opinion that the PIL petitioners had no reason to file
a public interest litigation when the subject matter was
evidently a title claim between a private party and the State.
26. Interestingly, the State Government itself concedes the title
to the appellants herein and has filed affidavits to such
effect, both before this Court and the High Court. In this
scenario, we are not dealing with an ignorant or illiterate
respondent; the State Government has accepted the title
vesting in the Gonsalves family and subsequently in Esteem
Properties.
27. We may also note that the title dispute is not a recent issue;
it has been agitated for the past six decades. The present
24
round of litigation concerning the subject land had its
genesis in the inquiry initiated by the Revenue and Forest
Department, Government of Maharashtra under Section 20
of MLR Code. It is clear that these proceedings were
conducted after giving due notice to the State as well as the
Gonsalves family. These proceedings were eventually
brought before the Revenue Minister, which resulted in the
order of 11.10.1995 vesting the property in the Gonsalves
family (predecessorininterest of Esteem Properties).
28. Order dated 17.03.1998 against the aforesaid order was
passed without following the principles of natural justice
and without providing adequate hearing to the Gonsalves
family. This Court has clearly advocated the importance of
natural justice and an opportunity of hearing to be afforded
to the affected party in any administrative or quasijudicial
proceedings umpteen number of times. The aforesaid
principle also finds its place in Section 258 of the MLR
Code, which reads as under:
“ 258 . (1) The State Government and every revenue or
survey office may, either on 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 fit:
25
Provided that,
(i) ………..
(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”
29. From the above, it is clear that the Gonsalves family had not
been provided adequate hearing before the order was passed
in review.
30.
It may be relevant to note that Esteem Properties filed a Writ
Petition, being W.P. No. 1657 of 2006, before the High Court
of Bombay challenging the order dated 17.03.1998. During
pendency of the said Writ Petition, the suit between Esteem
Properties and the Gonsalves family (appellants in C.A.
Nos.10425 of 2010 and 10764 of 2010 respectively) was
decreed through a consent order dated 12.06.2007 wherein
the aforesaid subject land was conveyed in favour of Esteem
Properties.
31. In this context, Esteem Properties filed a Notice of Motion
No. 333 of 2007 in Writ Petition No. 1657 of 2006 before the
High Court. The High Court while dismissing the Notice of
Motion granted appellants liberty to make a representation
before the appropriate authority.
26
32. It is in this backdrop that the representation of the
appellants was taken up as second review proceedings on
procedural grounds before the Revenue Minister. After
hearing the appellants as well as the State Government, the
Revenue Minister passed the order dated 10.12.2007
(impugned in High Court proceedings), which observed as
under:
“1. 10 acre 36 gunthas of land out of Old Survey No.
98 was given by East India Company to the then
Khot Shri Wadia. By doing partition of the said land,
the said land bifurcated into two hissas (parts), i.e.,
CS No. 229 and CS No. 145. Basically, the land in
question was of ownership of Khot and the said Khot
out of the said land, 5 acre 20 gunthas was given to
the family of Shri Gonsalves in the year 1894 and
accordingly their legal heirs are enjoying possession
and using the said land. In the meanwhile, in
connection with settlement arrived in the Hon’ble
High Court between the said Khot and State
Government the land shown in Appendix – 1 is of
the Khot and the land shown in Appendix 2 is of
Government Land. However, at that time families
if Shri Gonsalves having their vested interest in
the land in question were not made party and
they were not able to get opportunity for stating
their say, as it is seen from the papers.
2……… Therefore, review orders passed in the year
1998 are not found to be reasonable and justifiable
on the point of principle of natural justice.…..
……..
……..
……..
ORDER
27
1. In this matter, as per the direction given by
the Hon’ble High Court the Order dated
17.03.1998 by the then Hon’ble Minister,
Revenue is hereby reviewed and the said order is
hereby made cancelled.
2……..
3. Order dated 11.10.1995 passed by the then
Hon’ble Minister, Revenue Shri Sudhir Joshi is
hereby reestablished.”
(Emphasis supplied)
33. Given the above facts and circumstances, we do not find it
appropriate for the High Court to have allowed respondent
nos. 1 and 2 to have agitated issues concerning title and
ownership in a public interest litigation. The conduct and
history of the respondent nos. 1 and 2 is also not inspiring
for continuing this unnecessary litigation.
34. Our conclusion is further bolstered by the fact that the
State has clearly indicated that they do not have any
interest in pursuing the ownership of the land in question
and have admitted to the title of the appellants herein. In
this light, we hold that institution of the public interest
litigation was nothing more than an abuse of the process
which cannot be allowed in the facts and circumstance so
narrated. Question No. 1 framed above, is answered
accordingly.
28
35.
In the light of such a conclusion and the context in which it
has been arrived at, we do not consider it necessary to delve
into a detailed discussion with respect to the validity of the
order dated 10.12.2007. It has been clearly observed in the
said order that the Gonsalves family was not afforded an
adequate hearing. Accordingly, Question No. 2 is also
answered in terms of our discussion above while answering
Question No. 1.
36.
Therefore, we allow these Civil Appeals with costs. Pending
applications, if any, are also disposed of accordingly.
...........................................CJI.
(N.V. RAMANA)
..............................................J.
(A.S. BOPANNA)
..............................................J.
(HIMA KOHLI)
NEW DELHI;
FEBRUARY 28, 2022
29