Hoshang Boman Nanabhoy Dordi vs The State Of Maharashtra And ...
2021 Latest Caselaw 15629 Bom

                                                                         wp5786.21
                                       (1)

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                          WRIT PETITION NO.5786 OF 2021



 1.       Hoshang s/o Boman Nanabhoy Dordi,
          Age 80 years, Occu. Business,
          R/o Junabazar, Aurangabad,
          District Aurangabad                             ..PETITIONER

                  VERSUS

 1.       The State of Maharashtra,
          Through : Urban Development
          Department, Mantralaya,
          Mumbai - 32

 2.       The Aurangabad Municipal Corporation,
          Aurangabad, Dist. Aurangabad                    ..RESPONDENTS

 Mr. A.S. Bajaj, Advocate for petitioner;
 Smt. Vaishali N. Jadhav-Patil, A.G.P. for respondent no.1;
 Mr. A.P. Bhandari, Advocate for respondent no.2


                           CORAM : RAVINDRA V. GHUGE
                                           AND
                                   S.G. MEHARE, JJ.

                  (Date of reserving the judgment : 05.10.2021
                  Date of pronouncing the judgment :.29.10.2021)


 JUDGMENT (Per S.G. Mehare, J.)

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner has preferred this petition for directing respondent

no.2, the Municipal Corporation, to issue the Reservation Credit Certificate

(RCC for short) instead of Transferable Development Right (TDR for short).

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3. The brief facts of the case are that the father of the petitioner was the

owner of survey no.9. Respondent no.2 was requiring it for Municipal Hall.

Hence, he surrendered survey no. 9 to respondent no.2 in exchange for

the land bearing CTS no. 3742 measuring 5766 sq. yard (plot in dispute

for short) situated at Quile-ark, Aurangabad. His father possessed it from

1959. In 1971 respondent no.2 had issued a certificate of ownership of the

plot in dispute. The permission was granted to construct the plot in dispute

and renewed also. A part of the plot in dispute was acquired by respondent

no.2 for road widening. His father had received its compensation. They

are paying the various taxes to respondent no. 2. All these facts

unequivocally confirm the title of the petitioner over the plot in dispute. After

his father, the petitioner became the exclusive owner of the plot in dispute.

4. In 1985, respondent no.2 had served a notice to the petitioner to

remove encroachment on the plot in dispute. He had challenged it in a Civil

Suit. That suit was dismissed. However, the learned District Judge allowed

the appeal and held that the petitioner was not the encroacher.

Respondent no.2 had impugned the Judgment and decree of the District

Court in writ petition no. 1096/ 1986 before the High Court. By order dated

2.12.1986. the writ petition was dismissed.

5. Out of the plot in dispute, an area measuring 2764.99 sq. meters

was reserved for a garden in the Development Plan prepared by

respondent no.2. He surrendered the said piece of land to respondent no.2

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vide possession receipt dated 6.12.2012. Accordingly, he applied for TDR

on March 23, 2011, to respondent no. 2. Respondent no.2 had invited the

objections on his TDR claim. No objections were received. Hence he

submitted a registered relinquishment deed dated 14.09.2012. He made

various applications to respondent no.2 to issue him TDR certificate but in

vain. The petitioner has pleaded explicitly that for the last 11 years,

respondent no.2 has not issued the TDR certificate. Hence he is now

entitled to get Reservation Credit Certificate (RCC for short). Accordingly,

he has given an application to respondent no. 2 on 18.12.2020

6. The contesting respondent no.2, in its affidavit in reply, submits that

there were various litigations about the plot in dispute. When the

proclamation was issued in Aurangabad Division Gazette by the Land

Acquisition Officer, it revealed that one Anwarmullah was the owner of the

survey no.9. Therefore, there was no question of exchange of the plots.

The suit for specific performance of the contract and return of survey no. 9

filed by the father of the petitioner was dismissed. The issue of his title over

survey no. 9 was set at rest by judicial adjudication. It has no dispute about

another suit filed by the petitioner bearing M.C.A. no. 124/ 1985 in District

Court and dismissal of Writ Petition No. 1096/1986.

7. It has also brought the facts in light that one Princess Femina had

filed a Regular Civil Suit no. 1253/ 2013 against the petitioner claiming the

ownership over the plot in dispute. In that suit, the petitioner has furnished

an undertaking that he will not claim TDR until the suit is decided. The said

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suit was dismissed on 07.03.2019. Therefore, the TDR claim could not be

decided. Thereafter, also respondent no. 2 received various objections for

not granting TDR to the petitioner. The execution of the relinquishment

deed by the petitioner is also not disputed. Since the petiitoner has no title

over the disputed plot, he is not entitled to claim TDR. The portion of the

land from the plot in dispute is already parted with respondent no.2 by way

of the relinquishment deed against TDR. Hence he cannot claim

Reservation Credit Certificate. It is thus prayed to dismiss the petition.

8. After the affidavit in reply was filed by respondent no.2, the petitioner,

in his rejoinder, has explained how respondent no.2 took a turn from its

admissions of the title of petitioner over the plot in dispute. He has referred

to the paragraph nos. 10,11,18,19, and 24 of the reply filed by respondent

no. 2 in Regular Civil Suit no. 1253/2012, filed by princes Femina. He

referred to the paragraphs mentioned above and replied that respondent

no. 2 had admitted the title of petitioner over the plot in dispute. Therefore,

respondent no. 2 be estopped from denying his title. The petitioner has

possessed the plot in dispute since 15.09.1959. He also submitted that

respondent no.2 is further estopped from attempting to impress upon and

try to create a cloud on the Judgment and order passed in Writ Petition no.

1096 of 1986. The said Judgment held the lawful possession of the

petitioner. He is the owner in possession of the plot in dispute.

9. In the rejoinder affidavit, for the first time, it is submitted that in the

year 2012, respondent no.2 had represented that it has no money i.e. to

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pay compensation in terms of money. Hence, respondent no.2 had asked

the petitioner to claim TDR. It is also explained in the rejoinder that in

December 2020, Unified Development Control and Promotion Rules

( hereinafter referred to as UDCPR Rules) are brought into force, and,

Reservation Credit Certificate is also an option for claiming compensation

for the land to be acquired covered under reservation for the purpose of

development of the amenities, etc. Hence he has rightly claimed the RCC.

10. The learned counsel Shri Bajaj has argued that respondent no.2 has

never denied the ownership of the petitioner over the plot in dispute. By

way of affidavit in reply, now respondent no.2 cannot deviate from the

stands taken in earlier suits pertaining to the plot in dispute. Respondent

no.2 is estopped from denying the title of the petitioner. Every cloud over

the title over plot in dispute has been cleared long back. It is respondent

no.2 which, had offered the TDR instead of monetary compensation due to

financial constraints. The petitioner sincerely considered the offer and

proceeded further. He executed a registered surrender deed in favour of

respondent no.2. The suit filed by Princes Femina also has been dismissed

by the court. Now, respondent no.2 has no impediment to grant RCC as

prayed. The objections allegedly received by it have no legal force. In the

light of the facts and circumstances of the petition, the petition deserves to

be allowed.

11. Per contra, the learned counsel for respondent no. 2 Shri Bhandari

has vehemently argued that the prayer clause does not match the

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pleading. Hence on this sole ground petition deserves to be dismissed. He

further argued that the father of the petitioner had no title over survey no. 9

against the plot in dispute was to be given. Therefore, the document of

exchange was not created. The judicial pronouncement on the title of his

father has gone against his father. Even then, an illegal lease deed was

executed by his father in his and his family's favour. Mere granting

permission to construct the build does not confer the title. The alleged

document of title filed by petitioner, is not the document of title. The petition

is devoid of merit. Hence it may be dismissed.

12. After hearing the learned counsels for both sides extensively, we find

that the entire case revolves around the legal maxim, Nemo dat quod non

habet. This rule implies that the buyer's title cannot be better than the

seller's title.

13. The chequered history of the title of the plot in dispute may take us to

the root of the dispute. Hence we prefer to discuss it. The petitioner

claimed ownership over the plot in question on the basis of exchange of his

land survey no. 9. The Municipal Council had proposed to acquire land

survey no. 9 for the open-air theater. Before the notification of land

acquisition, negotiation between the father of the petitioner and respondent

no.2 was going on. Respondent no. 2 passed a resolution no.70 on

November 3, 1958, by which it was decided to allot the plot in dispute to his

father. The petitioner's father quickly agreed to the exchange. Respondent

no. 2 sent a letter to the Special Land Acquisition Officer requesting to

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pass an award as per the exchange agreement. The petitioner's father st handed over the possession of survey no. 9 to respondent no.2 on 31

July 1959, and respondent no.2 handed over the possession of the plot in

dispute to the petitioner's father on August 20, 1959. Since then, the

petitioner's father was in possession of the plot in dispute. In the

proclamation issued by the Government for acquisition, it was transpired

that one Anwarullah was the owner of survey no. 9.

14. The petitioner's father had filed a suit for specific performance of the

contract against respondent no. 2 bearing Spl.C.S. No. 7 / 1963. The

petitioner's father had brought the case that since the possession of the

disputed plot was delivered to him in exchange for survey no. 9,

respondent no. 2, be directed to execute the sale deed of the plot in

dispute in his favour. In the alternative, he had claimed to restore him the

possession of survey no. 9. The learned Civil Judge Senior Division,

dismissed the suit for specific performance of the contract and held that the

petitioner's father's title over Survey no. 9 is defective. It was also observed

in the said suit that the Hon'ble District Judge Aurangabad in Civil Appeal

no. 116 of 1961 held that one Karimulla was the owner of survey no.9. A

lady, namely Aminabegum, a legal heir of karimullah, filed the suit against

the petitioner's father. The Judgment and decree of the Civil Cout were

challenged by the petitioner's father before the High Court vide Appeal No.

36 of 1968 from Original Decree. The Bombay High court considered the

entire aspect and confirmed the Judgment of the learned Civil Judge.

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15. The record further reveals that though the suit for specific

performance of the contract was dismissed, he remained in possession of

the plot in dispute measuring 5766 sq. yard. A copy of the registered

lease deed of the plot in dispute dated October 2, 1979, executed by M/s

Boman Nanabhoy and company, a partnership firm to which the petitioner

and his father were also the partners, in favour of the mother, wife, and

minor child of the petitioner, is also placed on record by respondent no.2. It

reveals that the total area of the plot in dispute was 58,000 sq. ft., and out

of it, 7696 sq. ft was acquired by respondent no. 2 in 1976. The land

measuring 50,304 has remained untouched.

16. Respondent no. 2 had served a notice on the petitioner and his family

under Section 81-B (1) (b) of the Maharashtra Municipalities Act. It opened

one more litigation against respondent no.2. Said notice was impugned in

Misc. Civil Appeal no. 124/1985 before the learned District Judge

Aurangabad. Once again, the petitioner placed the same story claiming the

ownership over survey no. 9 and its exchange with the plot in dispute--the

fact of dismissing Spl. C.S. no. 7/1963 was also pleaded in that suit. In

addition to it, he had a defense that respondent no. 2 did not file a lawsuit

for recovery of possession. Respondent no. 2 treated his father as the

owner of the plot in dispute. His father's name was also recorded in the

city survey record. Respondent no.2 had acquired some portion of the plot

in dispute for road widening by respondent no.2. and paid the

compensation to his father. Respondent no. 2 also issued the ownership

certificate of the plot in dispute on 10.01.1971. It also reveals that

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respondent no. 2 had permitted the petitioner's father to construct the

house on the plot in dispute on 28,09.1973. Respondent no. 2 also

renewed the said permission on 11.03.1980.

17. On the facts pleaded in the said suit, the learned district judge

observed in paragraph no. 17 as under:

"17. The question that arises is what is the implication of the conduct of Municipality as disclosed from the above document mentioned above. It is not disputed that from 1959 onward, Boma was in possession of the suit land till 1983, and after his death, appellants are in possession. They have been treating this property as belonging to them. Boman's name was recorded in the city survey record as owner. Municipal Council never filed any suit for recovery of possession of the suit land on the ground that the contract of exchange of land becomes void on account of the acquisition of the land belonging to Boman and defect in the title. The settlement took place by mutual consent, and the Municipal Council passed resolution in 1958 agreeing to give land in exchange to Boman. Not only that, the Municipality got possession of Boman's land from s. No. 9, and put Boman in possession of the land situated near Kile-arak which was subsequently recorded as CTS. 3742. The above evidence discloses that Boman and his successor have been openly without interruption are holding and enjoying their property as owners since 1959. They have perfected the title by adverse possession. It must be said that the Municipal Council has no subsisting title to the suit land. The doctrine of estoppel also operates against the Municipal Council or Corporation in view of its own conduct recognizing Boman and his successors as owners of the property. Merely because the plaintiff failed in

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his suit for specific performance would not make any difference."

18. On the basis of the above findings and reasons, the learned District

Judge passed the following operative order:-

ORDER

The appeal is allowed. The order dated July 26, 1985, passed by the

administrator Municipal Corporation directing the appellants to give

possession of the land to the Municipal Corporation within one month from

the date of the service of the order is set aside. The Eviction proceeding

under S. 81-B of the Act is quashed. The respondent shall pay cost of the

appeal to the appellant and bear its own.

19. In view of the facts of the case, it may be profitable to discuss the

provisions on exchange. The term "Exchange" is defined in section 118 of

the Transfer of Property Act 1882 as follows:

'When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in

a manner provided for the transfer of such property by sale.

20. The exchange means a transfer of one thing for the other thing in

return. So, naturally, it should be a transfer for an equivalent. The

exchange completes only on execution of a registered document and in

exchange of possession in case of immovable property.

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21. The right of party deprived of the thing received in exchange has

been provided in section 119 of T. P. Act. It is provided that if any party to

an exchange is, by reason of any defect in the title of other party, deprived

of the thing or any part of the thing received by him in exchange, then,

unless a contrary intention appears from the terms of the exchange, such

other party is liable to him, at the option of the person deprived, for return

of the thing transferred, if still in possession of such other party or his legal

representative or a transferee from him without consideration. This

provision is very specific that the party deprived of the exchange may ask

for its return if the possession is delivered to such other person is without

consideration.

22. Section 120 provides that each party has the rights and is subject to

the liabilities of a seller as of that which he gives, and has the rights and is

subject to the liabilities of the buyer as of that which he takes. Under this

section, the parties to an exchange have the rights and liabilities of a seller

of the thing given and a buyer of the thing taken. The rules provided in

section 55 of the T.P. Act apply in the case of an exchange of land.

23. From the findings recorded by the District Judge in appeal bearing

no.116/1961 arising out of the suit filed by Aminabegum as legal heir, that

Karimullah was the owner of the plot in dispute, safe inference can be

drawn, that while negotiating the exchange of lands, the title dispute of the

survey no. 9 was sub judice. The petitioner's father's claim of the title over

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the plot in dispute is finally adjudicated by the Judgment and decree

passed in Spl. Civil Suit No. 7 of 1963. Neither the petitioner nor

respondent no,2, pleaded at all in what capacity the petitioner's father

remained in possession of the plot in dispute. On the contrary, in 1973,

respondent no.2 permitted the petitioner's father to construct the building

on the plot in dispute. These suspicious circumstances give scope to infer

that the petitioner's father must have suppressed the dispute of title over

survey no. 9 from respondent no.2, or some mess is made in collusion with

respondent no.2

24. To prove the title, the petitioner relied on a document titled

'Ownership Certificate' signed by Chief Officer of respondent no. 2. It is a

rule of interpretation of the law that to understand the real nature of the

document and the intention of the parties, the document shall be read as a

whole. We advert to the said document. It reads that "on the report of

Council inspector, it is certified that the house nos. 1-27-42 and 1-27-43

Mhalla Kile ark, is of Shri Bomen Nanabhai." It is a document dated

20.01.1971. It shows the house numbers. The local Government normally

gives the numbers to the houses for identification purposes and to know

who is occupying that house and is liable to pay the local taxes. The owner

or occupier must furnish such information while filling the assessment form

for the house/ building and other taxes. On the basis of information

supplied in the assessment form, the local Government refers to it only to

impose the liability of paying the various taxes. The authenticated

document of title of the land may be sale deed, gift deed, will deed, or any

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other legally-recognized mode. Such legally recognized executed

documents are the only authenticated proof of title. The Department of

Land records maintains the title record of the lands on the basis of such

authenticated proof title.

25. We are not oblivious of the principle that the possession follows the

title. However, when the title of the land is questioned on the basis of a

better title, the burden to prove the title of the persons in possession shifts

on him. A person in possession is presumed to be the owner of the land

until the better title is proved against him. In other words, the possession,

howsoever long, is not the proof of the title.

26. In the State of Maharashtra, the land records are maintained under

the Maharashtra Land Revenue Code. The Office of Land Records,

constituted under the said Code, is the authentic Office. Despite the land

record being maintained by such Office, the law is settled that bare entry in

revenue or record of right does not prove the title. So far as the record

maintained by Municipal Councils regarding the immovable properties is

concerned, it is maintained for the building and various other tax purposes

only. A document titled" Ownership Certificate" is of the year 1971. It

mentions only house numbers and not the plot in dispute. Therefore, it

would not be received as the title proof in favour of the petitioner. Besides

the title of survey no.9, Princes Femina had claimed the title over the plot in

dispute. The said suit is dismissed. But the fact remains that there was no

valid and legal exchange of lands. The plot in dispute was never validly

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transferred in favour of the petitioner's father.

27. The overall conduct of respondent no. 2 in defending the suits raises

various doubts. The present case is an example of its kind of deliberate

negligence and hands in gloves. The Municipal Council showed no

diligence in taking appropriate action against the possession of the

petitioner's father over the plot in dispute. Even after the denial of specific

performance of the contract by the competent court of law, he went on

leasing the same to his family members. He, under the wrong belief, was

considering himself the owner of the plot in dispute. Assumption and

presumption do not confer the title over the immovable property. The

Transfer of Property Act 1882 is the complete Code providing how to

transfer the immovable properties in different modes.

28. The Petitioner has a case further that out of the total area of the

plot in dispute, the area measuring 2764.99 sq. was reserved for a garden

in the Development Plan. But did not plead exactly when the Corporation/

respondent no.2 had reserved the plot in dispute for a garden? When was

the development plan sanctioned/ approved by the State Government?

When had the town planning authority, as provided under section 59 of the

Maharashtra Regional and Town Planning Act 1966 (1966 Act for short),

prepared the town planning schemes for implementing the proposals in the

final Development Plan, is also not pleaded. The Corporation/respondent

no.2 is also silent on such material facts. By way of rejoinder, for the first

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time, the petitioner explained that in the year 2012, respondent no. 2 had

offered him TDR as it had financial constraints. What decision the

corporation/respondent no. 2 has taken on the complaints filed by various

persons? Neither party has divulged such material details to arrive at the

proper conclusion.

29. The next question that comes to our mind is why the Council paid the

compensation to the petitioner for the portion of the land acquired for road

widening when the petitioner's father had no legal and valid right to transfer

the plot in dispute; to respondent no.2 in exchange? All these material

facts that are relevant and have a bearing on the adjudication of the

dispute, are missing. The rule of pleadings is ignored. The Corporation/

respondent no.2 is also silent on such material facts. The suppression of

such material facts and the conduct of the Council, smells something fishy.

30. The learned Counsel Shri Bhandari for respondent no. 2 has

vehemently argued that in the body of the petition, TDR is sought, but in

the prayer clause, the directions are sought against respondent no.2 to

issue the Reservation Credit Certificate. Therefore, the prayer is contrary to

what is pleaded in the body of the petition. On this ground also the petition

is liable to be dismissed. To counter the objection of respondent no. 2 , the

learned counsel Shri Bajaj contends that, in view of the Unified

Development Control and Promotion Regulations for Maharashtra State.

( UDPC Regulations for short), the prayer is perfect.

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31. The petitioner has specifically pleaded that for the last 11 years,

respondent no.2 has not issued the TDR certificate. Hence he is now

entitled to get Reservation Credit Certificate (RCC for short). Accordingly,

he has given an application to respondent no. 2 on 18.12.2020.

32. Transferable development right (TDR) is equivalent to the

compensation paid against the acquisition of the land. It is provided in

section 126 of the Maharashtra Regional and Town Planning Act 1966 that

only the lawful owner or the person having a clear title may surrender the

land for public purpose to the planning authority and may claim the TDR.

We have already discarded the petitioner's title over the plot in dispute.

Hence, the question of TDR does not arise.

33. The State of Maharashtra brought the UDPC Regulations in force

from 02.12.2020 in the State of Maharashtra. Chapter 11 is titled

'Acquisition and Development of Reserved sites in Development Plans.'

Regulation 11.2 of the said regulations speak of Regulations for grant of

Transferable Development Rights. As per rule 11.2.1, TDR is

compensation in the form of Floor Space Index (FSI) or Development

Rights, which shall entitle the owner for construction of built-up area

subject to provisions of this regulation. This FSI credit shall be issued in a

certificate which shall be called a Development Right Certificate (DRC).

34. Regulation 11.3 of the above regulations speaks of Reservation

Credit Certificate (RCC for short). It is a certificate specifying the amount of

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compensation in lieu of handing over of reserved land to the Corporation

and shall be issued by the Authority. The amount mentioned in this credit

certificate may be used to pay various charges like development charges,

premium, property tax, infrastructure charges etc., to the Authority from

time to time until the amount mentioned therein exhausts. RCC shall be

issued subject to the following conditions:-

i) The Authority shall acquire the land under reservation in lieu of RCC

only when it is immediately required for the development or creation of

amenity or services or utilities.

ii) Such certificate shall not bear any interest on the amount mentioned

therein and shall be transferable. However, payment being made to

Authority through the amount from RCC after six months from the date of

issue of RCC shall be discounted @ 10% for the payments to be made

under the provisions of these UDCPR.

iii) The amount of compensation to be paid to the owner shall be as per

the provisions of relevant Acts dealing with the land acquisition as

amended from time to time.

iv) The land to be handed over to the Corporation shall be free from all

encumbrances, and procedure laid down in TDR regulations shall be

followed.

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v) The Authority shall endorse the entries of payment on such certificate

from time to time. It shall maintain a record in a form considered

appropriate by it of all transactions relating to the grant of the utilization of

reservation credit certificate.

35. The conjoint reading of UDPC regulations 11.2. and 11.3 makes it

clear that the TDR and RCC are two distinct modes of the payment of

compensation in lieu of the money. TDR and the RCC are transferable.

RCC is the one-time credit given to the landowner against the payment of

development charges, infrastructure charges, property charges, etc., to be

paid to the Authority. The said certificate lasts till the amount determined

and mentioned therein is exhausted. The compensation to be paid shall be

determined as per the rules and regulations for determining the market

price of the land under the existing Land Acquisition Act and following the

TDR regulations. It gives one more advantage of 10% discount after six

months of its issuance. The first condition for RCC is that the Authority

shall require the reserved land immediately for the development or creation

of amenity, service, or utility. The petitioner has a case that the plot in

dispute is reserved for a garden. As defined under section 2 (2) of the 1966

Act, the term 'amenity' also includes parks. However, it is beyond

imagination that the Authority may require the reserved land for the park

immediately for the development, creation of amenity, service, or utility.

The UDPC Regulations provide for only one option, either TDR or RCC.

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36. The person claiming TDR or RCC shall be the owner of the land

reserved in the Development plan. Herein the case, the petitioner has no

title, ownership, or transferable rights in the land allegedly reserved in the

Development Plan for a garden. We have already observed above that the

material pleadings which are the backbone for the decision of the

petitioner's claim, are missing. That apart, non issuing of TDR for 11 years

of handing over the possession of the plot in question to respondent no. 2,

cannot be a ground to claim RCC instead of TDR.

37. After reserving the petition for Judgment, on 11.10.2012, the

petitioner had placed a praecipe for permission to withdraw the petition.

Hence the petition was listed for hearing on 21.10.2021. When we declined

to permit the petitioner to withdraw the petition, the learned counsel Shri

Bajaj for the petitioner, argued that now the law is settled that the claim of

adverse possession is a sword and not only a shield. In the light of the

change in the law regarding the adverse possession, the petition may be

considered, or the petitioner may be permitted to raise the same before the

competent court. To bolster his argument, he relied on the case of

Ravinder Kaur Grewal and others versus Manjit Kaur and others (2019) 8

SCC 729.

38. Undoubtedly, we are bound by the verdicts of the Hon'ble Apex

Court. However, the doctrine of ratio decidendi cannot be brushed aside.

The claim of adverse possession is always a mixed question of fact and

law. It needs a thorough investigation. On the one hand, the petitioner is

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claiming title over the plot in dispute, and on the other hand, he is claiming

adverse possession. The essential requisites for establishing adverse

possession are that the possession of the adverse possessor must be

neither by force nor by stealth nor under the license of the owner. It must

be adequate in continuity, in publicity, and to the extent to show that the

possession is adverse to the owner. The person claiming adverse

possession has to unequivocally admit the title of the person against whom

it is claimed. Adverse possession is a disputed fact. It is beyond the scope

of Article 226 of the Constitution of India.

39. We find that the plot in dispute measuring 5766 sq. yard, in a prime

locality, worth crores of rupees, has been in possession of the petitioner for

more than seven decades. Unfortunately, instead of protecting and

guarding the public property, the local body appears to be closing eyes.

Such a seven-decade-old dispute shall be dealt with all seriousness and

utmost care. We do not think it appropriate to record the finding on the

adverse possession on merit for the above reasons. In the light of the facts

and circumstances, we are of the view that the case law relied on by the

petitioner is not of any assistance to him.

40. For the above reasons, we conclude that since the petitioner has no

title over the plot in dispute, he is not entitled to TDR. The requisite

conditions to claim RCC do not exist. Hence his claim of RCC also fails.

TDR and RCC cannot be claimed simultaneously.

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41. For the above reasons, we dismiss the petition. Rule stands

discharged.

 (S.G. MEHARE)                           (RAVINDRA V. GHUGE)

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