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The Airports Authority Of India Act, 1994
The Indian Penal Code, 1860
The Land Acquisition Act, 1894
Section 6 in The Indian Penal Code, 1860
Article 226 in The Constitution Of India 1949

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Bombay High Court
Writ Petition No. 303 Of 2012 vs Adult, Christian, Indian ... on 12 June, 2012
Bench: S.A. Bobde, R.D. Dhanuka

1 WP303.12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, ORDINARY ORIGINAL CIVIL JURISDICTION.

WRIT PETITION No. 303 OF 2012.

PETITIONER : Edward alias Adward Paul Machado, Adult, Christian, Indian inhabitant

aged about 82 years, Occupation -

Farmer, resident at Machado Wadi,

Village Marol & Bapnala, near Hotel

Lela, behind Yellow Fever Hospital,

Sahar Road, Mumbai - 400 099.

VERSUS.

RESPONDENTS : 1.Mr. Pawan Kumar Nagpal, acting as Eviction Officer, Airport Authority of

India, Western Region, having his

office at New ATS Complex, Sutar

Pakhadi Village, Sahar Road, Sahar

Village, Andheri (East) Mumbai - 400

099.

2. Airport Authority of India, an

Authority established under the

provisions of the Airport Authority of

India Act, 1994 having one of its

Regional Office at Porta Cabin, New

Airport Colony, Vile Parle (East)

Mumbai - 99.

3. Mumbai International Airport Pvt.

Ltd., a private Company incorporated

under Companies Act, 1956 having its

registered office at Chhatrapati

Shivaji International Airport Terminal

2 WP303.12 1B, 1st Floor, Santacruz (E), Mumbai -

99.

4. Union of India, through the

Secretary, Ministry of Civil Aviation,

having their office at Rajeev Bhavan,

Chhatrapati Shivaji International

Airport, Safdarjung Road, New Delhi -

110 003 and also having their office

at 1st Floor, New City Civil and

Sessions Court Building, Mumbai -

400 023.

Mr. Iqbal Chagla, Senior Advocate with Mr. F.E.D'vitre, Senior Advocate with Mr. Choudhari, Advocate for Petitioner. Mr. D.J. Khambata, Advocate General with Mr. M.P.S. Rao, Senior Advocate with Mr. S.K. Chari, Advocate for respondent no.2.

Mr. Janak Dwarkadas, Senior Advocate with Mr. Pravin Samdani, Senior Advocate with Mr. Farid Karachiwala, Advocate for Respondent no.3.

Mr. Rajiv Chavan, Advocate for Respondent no.4. CORAM : S.A. BOBDE AND

R.D. DHANUKA, JJ

Date of Reserving : 9th May, 2012. Date of Pronouncement : 12nd June, 2012 JUDGMENT (PER - S.A. BOBDE, J.)

Heard learned Counsel for the Parties.

2. By consent of parties Writ Petition is taken up for final disposal hence, Rule, returnable forthwith. 3 WP303.12

3. The petitioner has prayed for a writ of certiorari for quashing the notice dated 03.01.2012 issued by the respondent no.1 - Eviction Officer of Airport Authority of India and the eviction proceedings in pursuance thereof, initiated by respondent no.2 before respondent no.1 - Eviction Officer. The notice is challenged mainly on the ground that the Eviction Officer functioning under the provisions of the Airports Authority of India Act, 1994 (hereinafter referred to at "the 1994 Act" for short) has no jurisdiction to proceed in the matter and in any case ought not be allowed to do so, in view of the pendency of Civil Suit filed by the petitioner claiming title to the same land from which he is sought to be evicted under the impugned notice. The petitioner has claimed in the suit that he is entitled to be declared as owner of the land in question. In the suit, the petitioner has, inter alia, claimed that the Airport Authority of India (AAI) and the Mumbai International Airport Private Limited (MIAL) have no right to dispossess the petitioner from the suit property. Later on the petitioner has by an amendment to the suit, prayed that it be declared that he has become owner of the 4 WP303.12 suit property by adverse possession as against the Union of India, prior to the constitution of the AAI under the 1994 Act.

4. The land in question (hereinafter referred to as "the petition land" for short) is part of a larger area ad- measuring 28.52 acres of land of village Marol and Bapnala. There are some structures on the said land. According to the petitioner he has been forcibly dispossessed from 18.52 acres of land from the larger area; and that he continues to be in possession of about 7 to 10 acres of land in respect of which he has received the eviction notice. The survey numbers are referred to in the schedule annexed to the plaint. It appears that the petition lands were initially requisitioned under the Requisitioning and Acquisition of Immovable Property Act, 1952, and were subsequently acquired under a notification published in the Bombay Government Gazette at Exh.2 under the Act. The possession receipts are at Exh.4. These lands were acquired for the purpose of Aerodrome and the lands absolutely vested in the AAI. The AAI has executed a lease in favour of MIAL, in respect of the area including the petition lands.

5 WP303.12

5. On 18.12.2004 the petitioner filed a suit being Suit No. 5890/2004 seeking an injunction, restraining the AAI from dispossessing the petitioner from the petition lands without following the due process of law. This suit did not contain any prayer that the petitioner be declared as owner of the suit property. In the suit there were averments that the petitioner is cultivating the suit property as an 'Kul' under the provisions of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the BTAL Act" for short) and that his name is shown as 'Kul' and 'Khand' in the 7/12 extracts in the other rights column and crop inspection column, vide paragraph no.5. In paragraph no.16 of the suit as originally filed there is also an averment that the plaintiff holds the land by adverse possession against the defendants and he has become owner thereof. On 7.5.2011 the Trial Court decided the notice of motion filed by the petitioner and restrained the respondents from dispossessing the petitioner from 7 acres of petition land without following due process of law.

6. On 05.08.2011 the petitioner filed a Chamber Summons for amendment to the plaint and introduced, inter 6 WP303.12

alia, detailed averments regarding the alleged adverse possession. For the first time he claimed that he has become owner by adverse possession. The City Civil Court allowed the chamber summons and permitted the amendment. The MIAL, against whom certain averments have been made, preferred a Writ Petition before this Court against the order permitting amendment. This petition was dismissed by this Court which upheld the amendment, but kept the issues of limitation and jurisdiction open. A further challenge to the amendment was rejected by the Supreme Court of India on 12.01.2012, thus upholding the order permitting amendment and further directing that the suit be decided within a period of 6 months.

7. In the meanwhile certain pencil entries in the "other rights column and crop inspection column" of the 7/12 extracts showing the petitioners name in the "other rights" column in respect of petition lands were directed to be deleted by the Sub Divisional Officer by an order dated 30.07.2010. The appeal filed by the petitioner against the said order has been rejected by the Deputy Collector (Appeals) on 16.04.2012.

7 WP303.12

8. Acting on the requisition made by the MIAL on 07.05.2011, the AAI on 03.01.2012 issued a show cause notice, the impugned notice, for eviction of petitioner from 7 acres of land out of the petition lands. The validity of this notice is the subject matter of the present petition.

9. In view of the submissions made by learned counsel on both sides, following three questions falls for our determination :-

(1)Whether the show cause notice issued to the petitioner is without jurisdiction ?

(2)Whether the Eviction Officer has jurisdiction to proceed to pass orders since the dispute as to title has been raised by the petitioner and is pending adjudication before the Civil Court ?

(3)Whether the petitioner's claim to title is bona fide and the dispute as to title pending before the Civil Court is a bona fide dispute ?

8 WP303.12

10. The notice is issued in exercise of powers conferred by the 1994 Act under Section 28-C. This provision is part of Chapter -VA, which is introduced w.e.f. 01.07.2004 with the specific purpose of obviating large scale unlawful occupation of Airport premises. "Airport Premises" is defined under Section 28-A as follows :

"(a) "airport premises" means any premises - (I) belonging to airport;

(ii) taken on lease for the purposes of airport; (iii) acquired for the Authority under the provisions of the Land Acquisition Act, 1894 (1 of 1894) or any other corresponding law for the time being in force."

"Un-authorized occupation" has been defined in Section 28-A (f), as follows :

"(f) "unauthorized occupation" in relation to any airport premises, means the occupation by any person of the airport premises without authority for such occupation and includes the continuance in occupation by any person of the airport premises after the authority [whether by way of grant or any other mode of transfer] under which he was allowed to occupy the premises has 9 WP303.12 expired or has been determined for any reason whatsoever."

Sections 28-C and 28-D respectively provide for issue of notice to show cause against an order of eviction and for eviction of unauthorized occupants. The said provisions read as follows :

"28-C. Issue of notice to show cause against order of eviction - (1) If the eviction officer is of the opinion that any persons are in unauthorized occupation of any airport premises and that they should be evicted, the eviction officer shall, in the manner hereinafter provided, issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall -

(a) specify the grounds on which the order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are or may be, in occupation of, or claim interest in, the airport premises - (i) to show cause, if any, against the

proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and

10 WP303.12

(ii) to appear before the eviction

officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown and also for personal hearing, if such hearing is desired.

(3) The eviction officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the airport premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to the persons concerned.

(4) Whether the eviction officer knows or has reasons to believe that any person is in occupation of the airport premises, then, without prejudice to the provisions of sub-section [3], he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed."

"28-D. Eviction of unauthorized occupants : (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 28- C and any evidence produced by him in support of the same and after personal hearing, if any, given under sub-clause [ii] of clause [b] of sub-section [2] of Section 28-C, the eviction officer is satisfied that the airport premises are in unauthorized occupation, the eviction officer may make an 11 WP303.12

order of eviction for reasons to be recorded therein, directing that the airport premises shall be vacated, on such date as may be specified in the order, by the persons who may be in

occupation thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the airport premises. (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the order or within fifteen days of the date of publication under sub-section [1], whichever is earlier, the eviction officer or any other officer duly authorized by the eviction officer in this behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is earlier, evict that person from, and take possession of, the airport premises and may, for that purpose, use such force as may be necessary."

Section 28-I provides for the establishment of a Tribunal. Sub-section (5) provides as follows : "28-I[5] A person shall not be qualified for appointment as Chairperson of the Tribunal unless he is, or has been, or is qualified to be, a Judge of a High Court."

12 WP303.12

Section 28-K provides for Appeals to Tribunal, which reads as follows :

"28-K. Appeals to Tribunal - (1) Any person aggrieved by an order of the eviction officer under the Chapter may, within fifteen days from the date of such order, prefer an appeal to the Tribunal in such form as may be prescribed : Provided that the Tribunal may entertain any appeal after the expiry of the said period of fifteen days, but not after the period of thirty days from the date aforesaid, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) On receipt of an appeal under sub- section [1], the Tribunal shall, after giving the appellant and the eviction officer an opportunity of being heard, pass such order as it thinks fit. (3) The Tribunal shall dispose of the appeal within thirty days from the date of filing the appeal:

Provided that the Tribunal may, for reasons to be recorded in writing dispose of the appeal within a further period of fifteen days. (4) An order of the Tribunal passed under sub-section [2] shall be executable as a decree of a Civil Court and for executing the same the Tribunal shall send a copy thereof to the Civil Court having jurisdiction which shall execute the 13 WP303.12 same, as expeditiously as may be possible, as if such order is a decree passed by that Court. (5) On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Chapter by the Tribunal in relation to any matter, no Court [except the Supreme Court under article 136 and the High Court under articles 226 and 227 of the Constitution] shall have, or be entitled to execute any jurisdiction, powers or authority in relation to such matter."

Section 28-L provides for procedure and powers of the Tribunal, the same reads as follows : "28-L. Procedure and powers of Tribunal - (1) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 [5 of 1908] but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act and of any rules made by the Central Government the Tribunal shall have power to lay down and regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sie in public or in private.

(2) The Tribunal shall have, for the purpose of discharging its functions under this 14 WP303.12 Chapter, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 [5 of 1908], while trying a suit in respect of the following matters, namely -

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) any other matter which may be prescribed.

(3) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 [2 of 1974]."

Section 28-M provides for finality of the orders, which reads as follows :

"28-M. Finality of orders - Subject to the provisions of this Act, every order made by an eviction officer or the Tribunal under this Chapter shall be final and shall not be called in question in any suit, application, execution or other proceeding and no injunction shall be granted by any Court or other authority in respect of any 15 WP303.12 action taken or intended to be taken in pursuance of any power conferred by or under this Chapter."

11. Mr. Chagla, the learned Counsel for petitioner submitted that the notice itself is without jurisdiction, since the eviction officer does not have the power to evict a person on the ground that he is an unauthorized occupant, if the `person has a bona fide claim for title of the lands from which he is sought to be evicted. This submission is made in view of the judgments of the Supreme Court in Government of Andhra Pradesh .vrs. Thummala Krishna Rao and another [(1982) 2 SCC 134]; State of Rajasthan .vrs. Padmavati Devi and others [ 1995 Supp (2) SCC 290]; State of U.P. and another .vrs. Zia Khan [(1998) 8 SCC 483] and an un- reported judgment of Division Bench of this Court in Durga Trading Company .vrs. Union of India (Writ Petition No.1552/2000, decided on 06.02.2003). According to the learned Counsel, it is a settled law that a dispute in relation to title cannot be resolved by an Authority conferred with limited powers to evict unauthorized person, but must be decided only by a Civil Court.

16 WP303.12

12. Thummala Krishna Rao's case (supra) arose under the Andhra Pradesh Land Encroachment Act, 1905. In that case the Osmania University having failed to establish its claim in the suit that the three plots in question were acquired by the Government for the University and in obtaining order of eviction of the Nawab, the occupant wrote a letter to the Government of Andhra Pradesh requesting it to take steps for summary eviction of persons allegedly in unauthorized occupation of 3 plots. At the instance of the University, the Government of Andhra Pradesh issued notice under Section 7 of the A.P. Land Encroachment Act, 1905 to the Nawab to vacate the land. The Supreme Court held that the Government can take action against persons in unauthorized occupation of land which is "property of Government" and cannot do so if there is a bona fide dispute regarding the title of the government to any property. In paragraph no.8 the Supreme Court has observed as follows : "...If there is a bona fide dispute regarding regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the 17 WP303.12 summary remedy provided by Section 6

for evicting the person who is in possession of the property under a bona

fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the

respondents as to proceedings taken by

the then Government of Hyderabad and

whether the Osmania University, for whose benefit the plots are alleged to

have been acquired, had lost title to the property by operation of the law of

limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12

years before the date of suit and the

University was not in possession of the

property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily,

which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary

remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated question of

18 WP303.12 title. The procedure is, therefore, not the due process of law for evicting the

respondents."

In paragraph no.10, the Court observed as follows : "...The question as to whether the title to the property came to be vested in the

Government as a result of acquisition and the further question whether the Nawab

encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. Maybe, that the Government may succeed in establishing

its title to the property but, until that is done, the respondents cannot be evicted

summarily."

13. In Padmavati Devi's case (supra) the Supreme Court followed its earlier decision in Thummala Krishna Rao's case and observed as follows :

"6. As noticed earlier Section 91 of the Act prescribes a summary procedure for

eviction of a person who is found to be in unauthorized occupation of Government

19 WP303.12

land. The said provisions cannot be

invoked in a case where the person in

occupation raises bona fide dispute about his right to remain in occupation over the land ."

In Zia Khan's case (supra), the Supreme Court has reiterated the same view.

14. According to the petitioner, the petitioner having filed a suit in respect of petition lands as early as on 18.12.2004 claiming protection from unlawful dispossession, is immune from any proceedings under the 1994 Act for eviction, since the petitioner's suit constitutes a bona fide claim to title, which cannot be decided in summary proceedings under the 1994 Act.

15. Mr. Khambata, the learned Advocate General appearing for AAI and Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of MIAL stoutly opposed the petitioners contention. According to respondents, the lands have been acquired as far as back as 1953 by the Union Government for the purpose of aerodrome and have been vested in the AAI, which has in turn executed a lease in 20 WP303.12 favour of the third respondent - MIAL. These lands stood in the name of AAI in the revenue records. The respondent no.2 - AAI not having authorized the petitioner to occupy the petition lands and in any case, no authority from respondent no.2 or the Union of India to occupy the lands having been shown by the petitioner, the petitioner cannot be said to have a bona fide claim as to title or ownership of the lands. In any case according to the respondents, the petitioner can assert any claim for being in authorized occupation of the lands, including the question of his title by pointing it out to the Eviction Officer under Section 28-D of the 1994 Act. According to Mr. Khambata, learned Advocate General appearing for respondent no.2, the petitioners claim in the Civil Court cannot be treated as a bona fide claim to title by any stretch of imagination having regard to the material on record. Therefore, the petitioner is not entitled to the protection of law as laid down by the Supreme Court, since the Supreme Court has clearly held that the Eviction Officer under a Special Statute cannot exercise his jurisdiction where a bona fide claim to the title is pending adjudication and the person is bona fide litigating in Court. According to the respondents, the petitioner has made a bogus and 21 WP303.12 dishonest claim before the said Civil Court and has gone to the extent of manipulating and fabricating revenue records and then made an amendment for the first time claiming relief of declaration of title by adverse possession on such fabricated records, is, therefore not entitled to be treated as having a bona fide claim or as litigating bona fide in the Court. In the circumstances, it was submitted that the notice itself cannot be said to be non-est or nullity, since the eviction officer has the undoubted powers to initiate proceedings, if it is brought to his notice that the airport premises has been occupied by an unauthorized person.

16. The learned Counsel relied on the decision of the Supreme Court in Special Director and another .vrs. Mohd. Ghulam Ghouse and another ((2004) 3 SCC 440. In that case the Special Director had issued a notice to the respondents in respect of violation of provisions of Foreign Exchange Regulation Act, 1973, and Foreign Exchange Management Act, 1999 which was challenged by the noticee by a Writ Petition before the Bombay High Court, which had issued an interim order restraining the respondents from initiating any 22 WP303.12 proceedings pursuant to the said show cause notice. The Supreme Court held as follows :

"5. This Court in a large number of cases has deprecated the practice of the High

Courts entertaining writ petitions questioning legality of the show cause

notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause

notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the

Court."

23 WP303.12

17. Having regard to the above observations, we find that in the circumstances of the present case there is nothing in the law which can be said to have divested the eviction officer from even issuing a notice. The eviction officer has acted in exercise of his powers under the Act in respect of a person who is perceived to be unauthorized occupant of the airport premises; the premises have been acquired by the Union of India and vested in the Airport Authorities. Whether the eviction officer is entitled to pass a final order evicting the petitioner from the premises on the ground that there is a bona fide claim to title pending adjudication in the Civil Court, is another matter, which has been dealt with below, but it is not correct in law to state that merely because a civil suit is pending the powers of eviction officer to issue a notice are in any way inhibited. The nature of power conferred and the fact that the appellate Tribunal is presided over by a person qualified to be a Judge of the High Court is sufficient indication of the competence of the authorities under the Act to decide the question whether a noticee had made a bona fide claim of title. The eviction officer and the Tribunal is entitled to assess whether the claim of the noticee is bona fide and if so found, can relegate the noticee to have it 24 WP303.12 decided by the competent Civil Court. It would be relevant to observe here that in case the authorities under the Act, including the Tribunal, commit an error in assuming the jurisdiction and pass an order of eviction, even though the noticee had a bona fide claim to title, the aggrieved person is entitled to avail of the remedy under Articles 226 and 227 of the Constitution of India to have the said error corrected. At this stage, it cannot be said that there is any order adversely affecting any civil right of the petitioner which calls for interference of this Court. In the circumstances, we find that the Eviction Officer has undoubted powers to issue a notice and call upon the petitioner to show cause, why an order of eviction should not be made.

18. The answer to the next question - whether the eviction officer has jurisdiction to pass orders in view of the pending dispute in the Civil Court, in this particular case would depend on whether the authorities under the Act come to the conclusion whether the dispute pending before the Civil Court raises a bona fide claim of title of the petitioner. 25 WP303.12

19. There is no doubt that the Supreme Court has unambiguously laid down in Thummalal Krishna Rao's case and others, referred to above, that "if there is a bona fide dispute regarding title to the property of government, the government cannot take a unilateral decision that the property belongs to it and on the basis of such decision take summary remedy for evicting the person who is in possession of the property under the bona fide claim or title." The Supreme Court has further clearly laid down that the Section which confers the powers of summary eviction on government, limits that powers to cases "in which a person is in unauthorized occupation of land." The Supreme Court has further observed that "the summary remedy provided by Section 6 is not a kind of legal process which is suited to an adjudication of complicated question of title. That procedure is, therefore, not the due process of law for evicting the respondents." It is therefore, not possible to uphold the contentions canvassed on behalf of the respondents that the eviction officer is invested with the kind of power which is suited to adjudication of complicated question of title. There is equally no doubt in this case that the petitioner has claimed the title on the basis of adverse possession. 26 WP303.12 Whether the petitioner would be entitled to validly agitate his right to possession on the basis of the tenancy under the Bombay Tenancy and Agricultural Lands Act and simultaneously on the basis of adverse possession hostile to the AAI or the Union Government, is a matter that can be decided only in the pending suit. Suffice it to say that the authorities under the 1994 Act do not have the power to adjudicate such complicated questions of title and cannot evict a person who has a bona fide claim to title.

20. Mr. Dwarkadas, learned senior counsel for MIAL however, submitted that the authorities under the Act including the Tribunal must be considered as conferred with jurisdiction to decide any question relating to title or ownership. The learned counsel relied on the judgment of Supreme Court in the case of V. Laxminarasamma .vrs. A. Yadaiah and others ((2009) 5 SCC 478). This case arose under the A.P. Land Grabbing (Prohibition) Act, 1982. The Supreme Court there observed that the Tribunal constituted under that Act has the same powers as Civil Court and is entitled to determine the complicated question of title, including the question of adverse possession. We find that 27 WP303.12 this case however, was decided on the construction of powers conferred by the Legislature on the Special Tribunal constituted for the purpose. Section 8 specifically conferred upon the Civil Court the power to try a case under the Act "with respect to the ownership and title to ....... land grabbed." No such power has been conferred on the authorities under the 1994 Act, and therefore, the contention is liable to be rejected. In fact the case relied upon by Mr. Dwarkadas, where in the Supreme Court, vide paragraph no.43, distinguished the judgment in Thummala Krishna Rao's case in the following words.

"43. It is one thing to say that a summary proceeding cannot be resorted to when a noticee resists a bona fide dispute involving complicated questions of title and his right to remain in possession of the land but it is another thing to say that although a Special Court and/or a Tribunal which has all the powers of a civil court would not be entitled to enter into such a contention. Krishna Rao, therefore, in our opinion has no application to the facts of the present case."

28 WP303.12

21. In this view of the matter, we see considerable force in the submissions of the learned Advocate General that the petition should be dismissed on the ground that it is pre- mature, since no adverse orders have been passed which alone can be said to have affected the petitioner, and that the petitioner has a remedy by way of an appeal before the Tribunal under Section 28-K of the Act. We would have adopted this course, but for the forceful submissions made by Mr. Chagla, that the petitioner should not be relegated to proceedings before the eviction officer and thereafter the Tribunal when eviction proceedings under the Act cannot go on at all, since there is a dispute as to title which can be decided only by a Civil Court which is seized of the matter. Mr. Chagla, contends that in view of the decision of the Supreme Court, the Writ Petition must be allowed, as the eviction officer cannot proceed to decide the question of title. We must therefore, examine the contention in view of the law laid down by the Supreme Court.

22. We are called upon to consider whether the petitioner has satisfactorily established that his claim to litigate is bona fide. Indeed in fairness Mr. Chagla, did not 29 WP303.12

dispute the position that merely because the noticee files a suit, bona fide or not, it would not protect him from proceedings under the 1994 Act. Indeed as submitted by Mr. Khambata, if that was the law, the authorities under the 1994 Act cannot exercise their powers of evicting any unauthorized occupier, merely if the person filed a suit claiming title, and it would virtually impossible for the authorities to protect the land of the Airport Authority from encroachers. We are inclined to uphold the submissions made on behalf of the respondents, and we think that there is no difficulty in observing that it hardly makes a difference whether a person has approached a Civil Court with a title suit before he received the notice of eviction and how much before and whether he has approached the Civil Court after he received such a notice. The crucial factor seems to be whether, the claim of title or ownership is bonafide. The Supreme Court has repeatedly cautioned that if the dispute regarding title is bonafide, the government cannot take recourse to the summary remedy, vide Thummala Krishna Rao's case (supra). (emphasis supplied)

30 WP303.12

23. Mr. Khambata, learned Advocate General, vehemently submitted that the petitioner cannot be said to have a bona fide claim of title or that he is bona fide litigating. The learned Advocate General specifically relied on the order of the revenue authority i.e. the order dated 30.07.2010 and of the Sub Divisional Officer, Mumbai Suburban District in respect of the petitioners land from survey no.131 to 140 of village Marol of Taluq Andheri, holding that the lands infact were shown as held by Airport Authority and that the pencil entries in the 7/12 extracts taken in the name of the petitioner have been manipulated in collusion with the clerk of Tahsildar, Andheri one Shri S.D. Dethe, and therefore, liable to be cancelled. Mr. Khambata, further relied on the judgment in appeal passed by the Deputy Collector (Appeals) Mumbai Suburban District on 16.04.2012 upholding the cancellation of the entries in the 7/12 extracts showing the petitioners name in the "other rights" column and "crop inspection" column. We have given our anxious consideration to these aspects and it seems from the findings of the revenue authorities that the petitioner clearly attempted to fabricate the evidence in the form of pencil entries to show his name in the other rights column 31 WP303.12

and crop inspection column. The Appellate Authority has rendered a clear and categorical finding that the land vested in the Government of India absolutely free from all encumbrances in Bombay Government Gazette dated 02.04.1953 by a WAR Notification dated 02.04.1953, that - (a) the recorded owner is the Airport Authority of India which has handed over the land to MIAL; (b) that the petitioners name was entered in the concerned revenue records in the other rights column and crop inspection column in pencil, without issuing any notices to the interested parties. The appellant had admitted that his name was not reflected in the revenue records till 10 years ago and it was inserted on the basis of certain panchnamas conducted by the Tahsildar, Andheri in the year 1990. The panchnamas do not show the details of the panchas. A mutation entry no.2592, on the basis of which these entries are made in the 7/12 extract, is itself illegally generated only to overcome the computer system maintained by the Revenue Office, which would not accept the mutation in absence of a entry number. This mutation entry no.2592 is not reflected in the records of right of the suit land even on the date of orders passed by the 32 WP303.12

Appellate Authority. The mutation entry is without any certification and baseless.

24. Thus, though whether the claim of adverse possession may yet be decreed by the Civil Court, dehors these entries is something we are not called upon to comment on. The question before us is, whether the petitioner has a bona fide claim to the ownership. The answer to that seems to be clearly in the negative, in the following circumstances. The suit originally filed in 2004 does not contain any prayer for declaration of ownership on the ground of adverse possession. It was after the petitioner contrived to have his name illegally inserted in the 7/12 extract on the basis of a fabricated mutation entry no.2592, that an amendment was made in the suit in November, 2011 for including a prayer that he has become owner by adverse possession. It is another matter that before this amendment was allowed, the Sub Divisional Officer has cancelled the pencil entries in the other rights column and crop inspection column. The petitioner appears to have filed an appeal against the cancellation, which has now, while the matter was being heard by this Court, been decided by the Appellate 33 WP303.12 Authority. It is thus clear that the petitioners claim to title has not been made bonafide. Indeed, the petitioner ought not to have resorted to the manipulating entries in the revenue records. Litigants who rely and resort to on false and fabricated entries in their favour are not entitled to protection or even otherwise not entitled to protection of this Court in exercise of its extra ordinary writ jurisdiction under Article 226 of the Constitution of India.

25. In the result, we answer the first question in the negative, the second question in the affirmative and the third in the negative.

26. Before parting with the case, we wish to add that the conduct of the petitioner as appearing from the orders of the revenue authorities in securing the creation of false entries in the revenue records only to bolster his case by adverse possession dis-entitles him to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, and we hold accordingly. In S.P. Chengalvaraya Naidu .vrs. Jagannath and others ((1994) 1 SCC 1).

34 WP303.12

"...One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all

walks of life find the court-process a

convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on

falsehood, has no right to approach the

Court."

We would also like to add that our observations, whether the claim of petitioner is bona fide or whether he is litigating bona fide, are not meant to decide any issue that may have struck in the suit, which may be decided on its own merits. In the result, we hold that the petition is liable to be dismissed and is accordingly dismissed. Rule discharged. No order as to costs.

JUDGE JUDGE

Mr. Chagla, the learned Counsel for the Petitioner, prays for continuation of interim order dated 17.01.2012. 35 WP303.12

In the view we have taken, we see no reason to do so. However, the Petitioner shall be entitled to a period of eight weeks to file reply to the show cause notice. JUDGE JUDGE

Dhuriya