Bombay High Court
Fayzan Khan And Others vs Superintendent Of Land Records, ... on 29 September, 2023
Bench: N. J. Jamadar
2023:BHC-AS:28787
AO-271-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 271 OF 2023
WITH
INTERIM APPLICATION NO. 3533 OF 2023
1. Fayzan Khan
Age:40
R/o. B/301, Sabina Apartment,
Himalaya Society, Narayan Nagar,
Ghatkopar (East), Mumbai - 400 084.
2. Devendra Mishra
Age: 34
Room No. 147, Shanti Nagar,
Near Durga Mata Mandir,
S.P. Road, Wadala (East),
Mumbai - 400 037.
Mobile No. 8779908851
3. Firoz Ismail Khan
703, Navbharat SRA Society,
New Mill Road, Kurla (West),
Mumbai: 400 070.
4. Rajesh Kanojiya
Akash Darshan CHS,
CST Road, Vidyanagri
Manipada, Santacruz (East)
Mumbai: 400 098. ...Appellants/
Original Plaintiffs
Versus
1. Superintendent of Land Records,
Mumbai Suburban District
10th Floor, New Administrative Building,
Government Colony, Bandra (East),
Mumbai - 400 051.
2. Tehsildar - Andheri,
Opp. Bhavans College,
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Andheri (West)
Mumbai.
3. City Survey Offcer - Bandra Division,
Municipal Garage,
Milan Subway,
Santacruz (West), Mumbai.
4. The Collector
Mumbai Suburban District
10th Floor, New Administrative Building,
Government Colony, Bandra (East),
Mumbai - 400 051.
5. Slum Rehabilitation Authority,
Through its Chief Executive Offcer,
Administrative Building,
Professor Anant Kanekar Marge,
Bandra (East), Mumbai - 400 051.
6. Executive Engineer (SRA)
Administrative Building,
Professor Anant Kanekar Marg,
Bandra (East), Mumbai - 400 051.
7. Klassik Vinyl Products Pvt. Ltd.
(Now Klassik Vinyl Products LLP)
Unit No. F/1, First Floor,
Shantinagar Co-operative Industrial
Estate Ltd. Vakola, Santacruz (East)
Mumbai : 400 055.
8. A.H. Wadia Charity Trust
Manager's Offcer
A. H. Wadia Marge,
Kurla, Mumbai: 400 070.
9. State of Maharashtra
Through Principal Secretary,
Housing Department,
Govt. of Maharashtra
Mantralaya, Mumbai : 400 032. ...Respondents/
Original Defendants
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***
Mr. Rohan Surve with Ms. Trupti Gaikar i/by V. Shukla and
Associates, Advocate for the Appellants.
Mr. Yogesh Patil i/by Mr. Vijay D. Patil for Respondent No.5
and 6.
Mr. Vishal Kanade with Mr. Saket Mone i/by Mr. Makarand
Savant for Respondent No.7.
***
CORAM : N. J. JAMADAR, J.
RESERVED ON : 21st JUNE, 2023.
PRONOUNCED ON : 29th SEPTEMBER 2023.
JUDGMENT :-
1. This Appeal under Section 104(1)(ffa) of the Code
of Civil Procedure, 1908 (The Code, 1908) is directed against
an order dated 4th February 2023 passed by the learned
Judge, City Civil Court at Dindoshi (Borivali Division),
Goregaon, Mumbai declining to grant leave to institute a suit
under Section 91(1)(b) of the Code, 1908.
2. Shorn of unnecessary details, the background
facts can be stated as under:
2.1 The appellants-complainants claimed to be public
spirited persons. They professed to espouse the cause of the
public on account of alleged inaction on the part of the
authorities in prohibiting the wrongful acts of Respondent-
Defendant No.7.
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2.2. The substance of the grievance of the plaintiffs,
which allegedly affects the public, is that land bearing CTS No.
4957 and 4957/1 corresponding to Survey No. 295, Hissa
No.6 situated at Village Kole-Kalyan, Taluka Andheri (the suit
property) belongs to Kumar Engineering Works and others.
The Defendant No.7 claims to have acquired the adjacent
property bearing CTS No. 4958-D, 4958-D/1 to 124 and CTS
No. 4889, 4889/1 to 4, 4890, 4894/A, 4894-A/1 and 2 and
4894-B, 4894-B/1 to 5 admeasuring 4771.70 and 997.80
square metres respectively from A. H. Wadia Charity Trust-
Defendant No.8, under an Indenture dated 3rd December
2007. Defendant No.7 has started implementing a Slum
Rehabilitation Scheme over the aforesaid lands acquired from
Defendant No.8.
2.3. In order to usurp the suit property, the Defendant
No.7 allegedly illegally and fraudulently got transferred the
suit property in connivance with the State machinery.
2.4 Plaintiffs assert that in the year 2014, the City
Survey Offcer-Defendant No.3, carried out modifcation in the
PR card in respect of CTS Nos.4957 to 4957/1. The plaintiff
No.4 raised objection thereto. It transpired that the then
Superintendent of Land Record has passed a fraudulent order
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on 1st November 2014 effacing the Survey Nos.4957 and
4957/1 from City Survey Record and amending the City
Survey Map. The plaintiffs claimed to have frst assailled the
said order before the Collector by preferring an application
under Section 300 of Maharashtra Land Revenue Code, 1966
(Code 1966) and later on fled an Appeal before the Deputy
Director, Land Records (D.D.L.R.) under Section 247 of the
Code, 1966. The D.D.L.R., however, declined to entertain the
Appeal questioning the locus of the plaintiffs.
2.5. The plaintiffs aver that the authorities of the State
in collusion with the Defendant No.7 have wrongfully effaced
property card in respect of CTS No No.4957 and 4957/1 and
consequently the Defendant No.7 has started developing the
SRA scheme by usurping the suit property which belongs
neither to Defendant No.7 nor to Defendant No.8. Plaintiffs
further assert that the Slum Rehabilitation Authority-
Defendant No.5 had also committed a wrongful act in issuing
an illegal LOI even in respect of the suit property. These
wrongful acts of the authorities of the State and Defendant
No.7 affect the interest of the public at large. Hence, the suit
under Section 91 of the Code seeking a decree to quash part of
LOI dated 23rd March 2018 issued by Defendant No.5 in
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respect of the suit property and a declaration that the 7/12
extract and Form No.6 in respect of the suit property which
stood in the name of Kumar Engineering Works and others
are valid and binding on revenue and other State Authorities.
2.6. Since the plaintiffs professed to espouse the cause
of the public, application seeking leave under Section 91(1)
(b) came to be fled.
2.7. Respondent-Defendant No.7 resisted the
application contending inter alia that the suit for the reliefs
claimed in the plaint was not tenable before the Civil Court as
the prayers in the prayers clauses (A) and (B) were barred by
provisions contained in Section 42 of the Maharashtra Slum
Areas (Improvement, Clearance And Redevelopment) Act,
1971 (Slum Act 1971) and Section 158 of the Code 1966,
respectively. It was denied that the suit was in respect of the
matter with necessitated leave under Section 91(1)(b) of the
Code, 1908.
2.8. By the impugned order, the learned Judge, City
Civil Court was persuaded to reject the application for leave
holding inter alia that no public property was involved in the
suit nor there was any public nuisance or wrongful act
affecting or likely to affect the public interest.
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3. Being aggrieved, the plaintiffs are in Appeal.
4. Mr.Rohan Surve, the learned Counsel for the
appellants/plaintiffs would urge that the learned Judge, City
Civil Court approached the issue from an incorrect
perspective. At the stage of determination of grant of leave
under Section 91(1)(b), the Court was required to prima facie
consider whether the grant of leave was necessary. Whether
the plaintiffs were entitled to the relief was a matter for
adjudication at trial. However, the plaintiffs could not have
been declined leave when there was overwhelming material
to show that the authorities of the State in collusion with the
Defendant No.7 had wrongfully carried out modifcation in
the City Survey Record to cause wrongful gain to Defendant
No.7. Mr. Surve would urge that the prayer for grant of leave
to institute the suit, where the plaintiffs espouse the cause of
public at large, ought to receive a liberal consideration. The
learned Judge, City Civil Court, according to Mr. Surve,
missed the substance of the matter and rejected the
application by ascribing untenable reasons.
5. Mr.Surve would submit that the legislature has
designedly liberalized the rule of "locus standi" so as to arrest
the damage to public interest. The provisions of Section 91(1)
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are not confned to acts of public nuisance but wrongful acts
which seriously affect the public at large also furnish a
sustainable ground to grant leave. In the case at hand,
according to Mr.Surve, both Defendant Nos.7 and 8 had
conceded that they were not the holders of CTS No. 4957 and
4957/1 and yet by resorting to machinations the Defendant
No.7 usurped the land and has started developing SRA
scheme in respect of the property which is not a slum.
6. To bolster up this submission, Mr. Surve placed a
strong reliance on the judgment of this Court in the case of
Omkar Pandit Bankar Vs. Ashok Laxman Jadhav 1, a Division
Bench Judgment of the Madras High Court in the case of M/s
Adani Wilmar Ltd. and Anr. Vs. Mr. A. S. Hansraj and Anr.2, a
judgment of the Punjab and Haryana High Court in the case of
Mohinder Singh Vs. Surmukh Singh and Others 3, a judgment
of the Andhra Pradesh High Court in the case of Chavali
Ranga Reddy Vs. Chavali Sesha Reddy and Others 4 and a
decision of the Punjab and Haryana High Court in the case of
Bijay Shankar Halwasiya and Others Vs. Bhiwani Sudhar and
Vikas Samiti, Bhiwani and Others5. Reliance was also placed
1 2023 SCC OnLine Bom 338
2 2018 SCC OnLine Mad 1788
3 ILR Punjab and Haryana 2012 (2) 694
4 2007 SCC OnLine AP 153
5 2015 SCC OnLine P&H 12454
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on a judgment of the Supreme Court in the case of Kachrulal
Bhagirath Agrawal and Others Vs. State of Maharashtra and
Others6 wherein the nature and distinction between public
and private nuisance was explained.
7. As a second limb of the submission, Mr. Surve
would urge that in any event the SRA scheme is being
developed illegally. It is necessary to curb menace of illegal
and unauthorized development. From this standpoint also,
according to Mr. Surve, the leave to institute the suit ought to
have been granted. Attention of the Court was invited to the
decisions of the Supreme Court in the cases of Friends Colony
Development Committee Vs. State of Orissa and Others 7, Sri
K. Ramadas Shenoy Vs. The Chief Offcerss Town Municipal
Council, Udipi and Others8s Pratibha Cooperative Housing
Society Ltd. and Another Vs. State of Maharashtra and
Others9 and Forward Constructions Co. and Others Vs.
Prabhat Mandal (Regd.) Andheri and Others 10 wherein the
Supreme Court laid emphasis on the necessity to frmly deal
with unauthorized development and strict enforcement of the
duties of the State authorities.
6 (2005) 9 SCC 36
7 (2004) 8 SCC 733
8 (1974) 2 SCC 506
9 (1991) 3 SCC 341
10 (1986) 1 SCC 100
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8. As against this, Mr. Vishal Kanade the learned
Counsel for the Defendant No.7 would submit that the prayers
in the suit run counter to the case of the plaintiffs that they
are espousing the cause of the public. In prayer clause (A),
the plaintiffs seek quashing of the LOIs such relief cannot be
granted by the Civil Court. The provisions contained in
Section 42 of the Slum Act 1971 incorporate an express bar
to entertain a suit of the present nature. In prayer clause (B),
the plaintiffs seek a declaration that suit property vests in a
third party. Such declaration can never form a subject
matter of a suit instituted under Section 91 of the Code, 1908.
9. Mr. Kanade would urge that, disguised as a public
interest, the plaintiffs are pursuing a private interest to settle
score with defendant No.7. There is no element of public
interest in the dispute in question. At any rate, both the
reliefs claimed by the plaintiffs are barred by express
statutory provisions as there are statutory remedies and, in
fact, the plaintiffs had resorted to the remedies under the
Code, 1966. Therefore, the learned Judge committed no error
in declining to grant leave, submitted Mr. Kanade.
10. Section 91 of the Code 1908 reads as under:-
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"91. Public nuisances - [(1) In the case of a public
nuisance or other wrongful act affecting, or likely
to affect, the public, a suit for a declaration and
injunction or for such other relief as may be
appropriate in the circumstances of the case, may
be instituted,-
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or
more persons, even though no special damage has
been caused to such persons by reason of such
public nuisance or other wrongful act.]
(2) Nothing in this section shall be deemed to
limit or otherwise affect any right of suit which
may exist independently of its provisions."
11. By way amendment in 1976, the scope of Section
91 came to be expanded, in two ways. First, in addition to the
Advocate General instituting a suit, such suit can now be
instituted with the leave of the Court by two or more persons.
Second, the words 'wrongful act' were added as a ground for
action in public interest in addition to "Public Nuisance".
Resultantly two or more persons with the leave of the Court
can institute a suit respect of wrongful acts which affect the
public, apart from cases of public nuisance.
12. In the case of M/s Adani Wilmar Ltd and Ors.
(supra) a Division Bench of the Madras High Court
considered the scope of the provisions contained in Section 91
in the light of the legislative object in incorporating the 1976
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amendment and repelled the submission that the words
"wrongful act" be read ejusdem generis public nuisance. The
observations of the Division Bench in paragraph Nos. 11 and
12 are material and hence extracted below.
"11. We are of the considered view that the language
as used under Section 91(1) of CPC is clear and
unambiguous and the same can be understood in its
natural and ordinary sense. There is no requirement
to refer to the General Clauses Act or the Penal Code,
1860 in order to understand the meaning of the words
employed under Section 91 (1) of CPC. The word
wrongful acts has to be understood as any legal wrong
that prejudicially affects a legal right of any person.
The averments made in the plaint by the plaintiffs
against the defendants suffciently falls within the
scope of the word "wrongful acts". Even for the
purpose of understanding the word "public nuisance"
it is not necessary to employ the meaning to it under
Section 268 of IPC for the reason that it is a criminal
statute where rules of strict interpretation is followed.
The ordinary meaning of the "public nuisance" will
encompass any act affecting the public at large which
seriously interfere with the health, safety, comfort or
convenience of the public generally by virtue of an act
of any person or entity. The plaintiffs have made
necessary averments in the plaint touching upon the
aspect of the "public nuisance" also against the
advertisement given by the defendants.
12. The scope of a suit fled under Section 91 CPC by
the very language used in the provision gives a very
wide amplitude. A plain reading of the Section would
go to show that in case of a "public nuisance" or other
"wrongful acts" affecting, or likely to affect the public,
false within the scope of Section 91(1) CPC. The word
"other" also assumes signifcance as it clearly drawn a
distinction from the word "public nuisance". Similarly
the words "likely to affect" taken within its sweep will
include any possible act in future. Thus, the
overwhelming factor is that of public interest. This is
once again made clear by dispensing with the
personnel injury termed "special damage". Two or
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more persons can fle a suit on this nature with the
leave of the Court even though no special damage has
been caused to such persons by reason of such "public
nuisance" or "other wrongful acts". In our considered
opinion, even an advertisement which is likely to
affect the public at large can fall within the scope of
Section 91 CPC. Taking into consideration the
intention of the legislature enabling the fling of a suit
by any two persons, after getting the leave of the
Court, whenever any act causes "public nuisance" or
"other wrongful acts" affecting or likely to affect the
public and also taking into consideration the wide
amplitude of the language used under Section 91 CPC,
this Court cannot give a restricted meaning as sought
to be projected by the learned senior counsel for the
appellants. The provisions of Section 91 CPC is an
important tool for remedying the grievances of a large
number of individuals who cannot fle independent
suits. Such an important right guaranteed under the
said provision cannot be defeated by giving it a
restrictive interpretation."
13. In the case of Mohinder Singh Vs. Surmukh Singh
and Others (supra), the Punjab and Haryana High Court
observed that, under Section 91(1) of Code the scope of locus
standi to fle a suit has, in fact, been enlarged. Even persons to
whom no special damage has been caused on account of a
wrongful act or public nuisance may institute a suit upon
complying with the conditions stipulated in Section 91(1) of
the Code, 1908. However, such provisions cannot be
construed to restrict the right of a person to fle a suit in view
of a wrong caused independently of such provision.
14. In Chavali Ranga Reddy (supra), a learned Single
Judge of the Andhra Pradesh High Court observed as under: -
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"8. After amendment as above, the position is
as follows. A suit for declaration and injunction
or other appropriate relief can be instituted in
the case of (i) a public nuisances (ii) other
wrongful act affecting or likely to affect the
public. Such a suit can be instituted by two
categories of persons, namely, the Advocate
General of the State or, two or more persons even
if no special damage is caused. In this case, there
are two plaintiffs, and therefore, there is
compliance with Section 91(1)(b) of CPC. Even
otherwise Sub-section (2) of Section 91 of CPC
does not take away the general right of every
person to seek redressal in a civil Court if any
right is affected."
15. The legislative object behind relaxing the rule of
locus standi was elucidated by the Punjab and Haryana High
Court in the case of Bijay Shankar Halwasiya and Others
(supra) in following words: -
"11. When focussed attention is paid to this
provision, it transpires that Section 91(1) CPC
provides a dynamic concept for action in matters
of public nuisance or other wrongful acts etc. It is
the cause and interest of public which is to be
secured. It remains a fact that neither the
litigation earlier instituted by the respondents
nor fling of application under Order I Rule 10
CPC is any substitute for the considerations to be
weighed at the time of decision on application for
seeking leave of the court for bringing a suit
under Section 91 CPC.
12. Consideration while deciding application
under Order I Rule 10 CPC are always different.
Pleas such as the plaintiff is a dominus litus etc.
are to be evaluated for deciding application
under Order I Rule 10 CPC. If contents as also
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cause of action of application under Order 1 Rule
10 CPC is not commensurate with the contents
and cause of action of the main suit, in which
such application is fled, then there would not be
any chance of success of application under Order
I Rule 10 CPC. In short, considerations for
evaluating merits of application under Section 91
CPC are entirely different than those which are
available for deciding application under Order I
Rule 10 CPC."
16. There can be no duality of opinion that the
enabling provision contained in Section 91(1) of the Act
serves a salutary purpose. With the amendment of 1976, the
scope of the said provision stands expanded to subsume in its
fold wrongful acts as well. A case of public nuisance does not
present much diffculty as ordinarily public nuisance affects
public interest as a matter of necessary corollary. It is in the
case of wrongful acts, the applicability of the provisions
contained in Section 91(1) is required to be tested. From the
text of Section 91(1) it becomes abundantly clear that the
wrongful act contemplated by the said section ought to have
the propensity to affect the public. It is this potentiality of
harm to public in contradistinction to injury to a person or
group of persons, which furnishes the test for application of
the said provision. Focus is not on the wrongful act but the
effect such act has on the public. Therefore, in my view, when
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the Court is confronted with the question as to whether leave
under Section 91(1) of the Code, 1908 deserves to be granted,
it has to pose unto itself the question as to whether the
alleged wrongful act either affects the public or has the
propensity to affect the public. If the answer to the question
is in the affrmative, ordinarily leave ought to be granted. As
the matter at that stage is in the realm of grant of leave only,
liberal consideration shall inform the decision of the Court.
17. Reverting to the facts of the case, it is pertinent to
note that, the plaintiffs do not assert that the suit property
vests in public. The plaintiffs not only averred that the
property cards in respect of the suit properties were illegally
effaced but also sought a specifc prayer that the persons
whose names were originally mutated to the CTS Nos.4957
and 4957/1, be declared to be the owners of the suit property.
It would be contextually relevant to note that the plaintiffs
essentially assail the correctness of the order dated 1st
November 2014 passed by the Superintendent of Land Record
ordering the effacing of the property cards in respect of CTS
Nos. 4957 & 4957/1 on the premise that the land covered by
those CTS numbers had already been subsumed in CTS No.
4958-D and the property cards in respect of CTS Nos. 4957
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and 4957/1 were incorrectly opened. As noted above, the
plaintiffs claimed to have assailed the legality, propriety and
correctness of the said order by approaching the authorities
under Code, 1966. In this backdrop, the dispute in question
partakes the character of a dispute inter partes rather than a
dispute which affects the public at large.
18. The endeavour of the plaintiffs to demonstrate
that the Slum Rehabilitation Scheme could not have been
sanctioned in respect of the suit property as it never belonged
to either Defendant No.7 or Defendant No.8 also does not
merit countenance. The effect of the order passed by the
Superintendent of Land Record dated 1 st November 2014 is
that the area covered by CTS No. 4957 and 4957/1 was non-
existent as it had already been subsumed under CTS No.
4958/D. Thus, the controversy really boils down to the
legality and correctness of the order of the Superintendent of
Land Record dated 1st November 2014. The fact that the
Defendant No.8, or for that matter Defendant No.7, had not
claimed ownership over the land bearing CTS No. 4957 and
4957/1 thus pales in signifcance.
19. The upshot of aforesaid consideration is that even
if the case of the plaintiffs that, the order dated 1 st November
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2014 effacing the property cards in respect of CTS Nos.4957
and 4957/1 and declaring that the land covered by those
property cards already stood merged with the land covered
by CTS No. 4958/D was wrongfully passed, is taken at par,
yet, the issue would fall within the realm of a private dispute.
Indisputably, the persons whose names were mutated to the
property card of CTS Nos. 4957 and 4957/1 can legitimately
agitate the grievances in respect of the said order. However,
it would be rather diffcult to conceive that, the alleged
wrongful act would affect the public at large.
20. It is true that the rule of locus standi stands
expanded by Section 91(1) and normally the Court should
liberally consider a prayer for grant of leave. At the same
time, the Court needs to be on guard against the parties
resorting to Section 91(1) to settle personal scores over
disputes that bear no semblance of public interest. In a case
where the alleged wrongful act does not affect public at large,
even remotely, permitting a busybody to institute the
proceedings would defeat the laudable object with which the
rule of locus standi is expanded.
21. Cases of environmental pollution or illegal and
unauthorized construction in breach of the Development
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Control Rules are the examples of matters in which the
provisions contained in section 91(1)(b) of the Act can have
practical application. Undoubtedly, these are illustrative
cases. However, where the core question in controversy
revolve around proprietary title to a particular piece of land,
unless it is alleged that title vests in State or an
instrumentality of the State, the wrongful act even where it is
alleged to be that of an authority of the State, may not fall
within the ambit of Section 91(1) of the Act. Where the
dispute revolves around proprietary title to the property in
which the State has, prima facie, no right, title and interest, it
is the person aggrieved who has to seek the redressal, lest
there would neither accountability for, nor fnality to, the
litigation.
22. Mr.Surve next urged that since the original
holders whose names were mutated to the property card of
CTS Nos. 4957 and 4957/1 are not traceable as their
whereabouts are not known, eventually, the public would
suffer as ultimately the property would have vested in the
State by escheat. The submission is required to be noted to be
repelled as it is presumptive and far fetched. Such
consideration cannot form a foundation for grant of leave
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under Section 91(1) of the Act.
23. Though Mr. Kanade forcefully canvassed the
aspect of bar of jurisdiction in the context of the prayers in
the plaint yet, at this juncture, I am not inclined to delve into
the said aspect of the matter as the challenge is to the
exercise of discretion in declining to grant leave to institute
the suit. Having tested the impugned order on the
parameters of the alleged wrongful act affecting the public, I
do not fnd any justifable reason to interfere with the
impugned order.
24. Before parting, it must be clarifed that the
consideration is confned to testing the legality, propriety and
correctness of impugned order and this Court may not be
understood to have examined the legality and correctness of
the actions of the State authorities and defendant Nos.7 and
8, which the plaintiffs professed to assail in the suit. If any
challenge thereto is raised by the competent persons in
appropriate proceedings before the appropriate forums, the
same be decided on its own merits and in accordance with
law. By way of abundant caution it is reiterated that this
judgment shall not be construed as approving or upholding
those actions, in any manner.
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25. Subject to aforesaid clarifcation, the appeal
deserves to be dismissed. Hence, the following order.
ORDER
(i) The Appeal stands dismissed.
(ii) In view of the dismissal of the Appeal, Interim
Application also stands dismissed.
(iii) No costs.
(N. J. JAMADAR, J.)
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