The Bombay High Court has asserted that in a suit for declaration of title, the plaintiff must establish its own title affirmatively, and where the Union of India claims title over land on the basis of an old government grant and subsequent constitutional vesting, it must prove that title in fact remained vested in Government and later passed to the Union. A grant such as the 1870 Indenture, when read in its own tenor and in the context of the prevailing revenue law framework, may amount not to a lease but to an alienation of proprietary and revenue interests conferring a heritable, transferable and assignable estate upon the grantee.
The Court held that Entry 47 of List I of the Government of India Act, 1935 relating to “Salt” is only a legislative field and does not by itself vest ownership of land used for salt manufacture in the Federal Government or, by succession, in the Union under Article 294 of the Constitution. Questions of proprietary title to land remain governed by the constitutional and statutory scheme relating to land and land revenue, and the absence of the suit lands from the 1938 notification under section 172 of the Government of India Act, 1935 defeats the Union’s claim of federal vesting.
The High Court also held that where the plaintiff fails on title, an independent challenge to revenue or administrative orders determining title does not survive in substance if such challenge is founded entirely on the plaintiff’s asserted ownership. In such a case, failure to separately adjudicate that consequential challenge is not fatal, and the appellate court may sustain dismissal without remand if the record is sufficient.
The Division Bench comprising of the Chief Justice Shree Chandrashekhar and Justice Gautam A. Ankhad observed that in a suit for declaration of title, the plaintiff must succeed on the strength of its own title and not on the weakness of the defendant’s case. It expressly placed the burden on the Union of India to establish that title vested in it and continued with it.
On the character of the 1870 Indenture, the Bench held that it was not a mere demise of possession and not a lease in the sense contended by the Union. Reading the document as a whole, the Bench found that it alienated a wide bundle of rights in favour of the grantee, including the right to hold and enjoy the lands, the right to assign and mortgage the estate, and the right to recover land revenue from occupants. Clause XI, including the requirement of prior written consent for certain assignments and the re-entry provision, did not alter the essential nature of the grant. The Bench therefore treated the Indenture as a comprehensive grant of an estate carrying heritable, transferable and assignable rights.
The Bench further accepted the respondents’ submission that the contemporaneous and continuing revenue law framework recognised the concepts of alienated village, estate, occupant and superior-holder in a consistent manner across the Bombay Survey and Settlement Act, 1865, the Bombay Land Revenue Code, 1879, and the Maharashtra Land Revenue Code, 1966. It held that within this framework, what is colloquially described as “ownership” corresponds to the statutory status of an occupant or superior-holder. On that footing, the Indenture evidenced a divestment of Government’s revenue and proprietary interests and a conferment of proprietary estate upon the grantee.
The Bench also held that legislative entries are fields of legislation and do not themselves determine ownership of land. “Salt” being in the Federal List did not mean that any private land used for salt manufacture vested in the Federal Government. The Bench emphasised that land and land revenue were provincial subjects under Entries 21 and 39 of List II, and that the subsequent use of the lands for salt manufacture under licence could not divest the grantee of proprietary rights or vest title in the licensing authority. The omission of the suit lands from the 16 July 1938 notification under section 172 was treated as fatal to the Union’s case.
Briefly, the Union of India, through the Deputy Salt Commissioner, had sought a declaration of title over suit lands comprised in Mira, Manek/Shapur Salt Works at village Bhayander, District Thane, together with consequential reliefs including possession, injunction, damages, and challenge to the revenue orders dated 18 November 2002 and 8 October 2010. The trial court held against the Union of India on ownership, maintainability, jurisdiction, possession, and substantive relief, though it held the suit to be within limitation and not barred by res judicata.
The historical basis of the dispute was an Indenture dated 7 November 1870 under which the Secretary of State for India in Council granted to Ramchunder Luxumonjee, for 999 years, villages including Bhayander, Ghodbunder and Mira, comprising about 3,688 acres. The present dispute concerned the Eksali lands, approximately 220/227 acres out of that larger parcel. In 1945, respondent no.1 acquired the rights, title and interest of the original grantee under two deeds of assignment. The suit lands were not included in the 16 July 1938 notification issued under section 172(1)(a) of the Government of India Act, 1935 identifying lands and buildings vested for federal purposes.
The respondent no.1 was declared “land-holder” under the Bombay Tenancy and Agricultural Lands Act, 1948 by notification dated 19 December 1949, and though the State Government assumed management under section 44 of that Act, such action was later reversed on 1 October 1957. The Salsette Estates (Land Revenue Exemption Abolition) Act, 1951 subjected the lands to land revenue. In later proceedings, including the order dated 5 September 2008 under the Salsette Act and the common order dated 8 October 2010 in RTS appeals, respondent no.1 was recognised as superior holder/owner to the extent recorded, respondent no.2 as tenant in respect of certain lands and owner in respect of specified remaining lands, and the Salt Department’s name was directed to be deleted from the revenue record.
Appearances:
Anil C. Singh, Additional Solicitor General with Aditya Thakkar, Savita Ganoo, Ameya Mahadik, Siddha Pamecha, Simantini Mohite, Ashish Mehta, Adarsh Vyass, Rama Gupta, Rajdutt Nagre and Krishnakant Deshmukh, Advocates for the Appellant-Original Plaintiff
Girish Godbole, Senior Advocate, with Saurabh Kirpal, Senior Advocate, Jaydeep Oza and Mustafa Nulwala, i/by Ms. Tabbassum Achhan, Advocates for Respondent No.1
Aspi Chinoy, Senior Advocate, with Yohaan Shah, Rujuta Patil, Hasan Mushabber and Adv. Divishada Desai, Advocates, i/by Negandhi Shah & Hidayatullah, for Respondent No.2
A.R. Patil, Additional Government Pleader for Respondent Nos.3 to 5-State of Maharashtra
