1. Leave granted.
2. This appeal has been preferred by the appellant-Municipal Corporation, Aurangabad (hereinafter referred to as “the Corporation” against the judgment and order dated 26.03.2013 passed by the High Court of Judicature of Bombay, Bench at Aurangabad in Writ Petition No. 10512 of 2010 with Civil Application No. 8801 of 2012. By the impugned judgment and order, the High Court allowed the writ petition preferred by the 2 respondent - Jaisingh s/o Bhimsingh Pardeshi.
3. The factual matrix of the case is as follows:
3.1 The dispute relates to land admeasuring 15881 sq. mtrs. out of Survey No. 12, Shahnoorwadi, Aurangabad. Initially, the said land was reserved for “Washery” (Dhobi Ghat) and subsequently was acquired for the purpose of “Washery” by the appellant-Corporation through private negotiations and the possession of the said land was handed over by the original owner-Bhimsingh (father of respondent no. 2) on 01.08.1985 Thereafter, the said original owner being a protected tenant under Section 38E of the Hyderabad Tenancy and Agricultural Land Act(hereinafter referred to as “the said Act”), applied for post-facto permission under Section 50B of the said Act, from the competent authority for alienation of the land in favour of the appellant-Corporation. Accordingly, the competent authority duly granted post-facto sanction vide its order dated 16.01.1986
3.2 Just before the acquisition of the said land for Washery (Dhobi Ghat), the appellant-Corporation had also acquired land admeasuring 6283 sq. mtr. for D.P Road of 80 feet and 50 feet out of the said Survey No. 12, by private negotiations. At that point of time, the original owner had submitted a lay out plan for the remaining land, of Survey No. 12 (excluding the land which was acquired for 80 & 50 feet D.P Road and for Dhobi Ghat). The original owner had requested the appellant-Corporation for adjusting the betterment charges for sanctioning of his layout with the amount of compensation to be received by him for the land acquired for 80 and 50 feet D.P Road. The appellant-Corporation accepted his request by passing a resolution dated 23.05.1985 and thereby the amount of Rs. 1,53,950/- payable as compensation for the land acquired for 80 and 50 feet D.P Road, stood paid, being adjusted against the betterment charges payable for sanctioning of the lay out for the remaining land out of Survey No. 12 (i.e land out of Survey No. 12 excluding land acquired for Dhobi Ghat and 50 & 80 feet D.P Road.).
3.3 The original owner thereafter filed Writ Petition No. 1832/1989 before the High Court of Bombay, Bench at Aurangabad and sought (a) enhancement of compensation for the land acquired for 50 and 80 feet D.P Road and (b) compensation for land acquired for Dhobi Ghat. The said original owner accepted the parting of possession and factum of acquisition, hence did not raise any objection as regards to acquisition or the procedure thereof.
3.4 After hearing the parties, the High Court by an interim order dated 06.12.1989 directed the appellant-Corporation to deposit Rs. 2,85,100/- (the amount which was agreed as compensation between the parties towards the area admeasuring 15881 sq. mtrs. acquired for Dhobi Ghat). The original owner thereafter, filed Civil Application No. 4658/1994 in the said writ petition No. 1832/89, seeking withdrawal of said compensation by re-affirming that the land was acquired for Dhobi Ghat and D.P Roads.
3.5 The High Court after hearing the parties, was pleased to dismiss the said writ petition by observing that, once the land was acquired by private negotiations and rate of compensation was agreed, the petitioner therein could not have turned back and claimed higher rate of compensation after a long time lapse of about five years. The said order shows that the issue regarding change of user alone was kept open and rest of the issues stood concluded. It appears that the said order was challenged by the original owner before this Court and the said petition was also dismissed. Therefore, the issue of acquisition and compensation of the said lands at Dhobi Ghat attained finality and the issue in that regard could not have been raised by the present respondent no. 2 or anybody, anytime thereafter.
3.6 Further, the present respondent no. 2 and the other legal heirs of the original owner Bhimsingh filed Civil Application No. 2180 of 2003 seeking review of the order dated 31.01.2002 in Writ Petition No. 1832/1989 and stated that the land at Dhobi Ghat was taken by negotiation and the possession of the same was also taken. According to them no compensation was paid for the land acquired for Dhobi Ghat. The said review petition was also dismissed for non-prosecution on 15.01.2010
3.7 In view of the change in development plan in the year 2006, the appellant-Corporation proposed to construct a shopping complex on the land in question. The appellant-Corporation accordingly sought mutation in revenue records for showing the Corporation as owner of the land. The Tahsildar, after considering the documents on record, directed mutation in the revenue records and placing the appellant-Corporation as owners of Washery (Dhobi Ghat) land admeasuring 15881 sq. mtrs. The respondent no. 2 challenged the said order by filing an appeal before the Sub-Divisional Officer which was dismissed on 10.04.2007 The respondent no. 2 challenged the said order by preferring second appeal before the Additional Collector, Aurangabad which was also dismissed on 5.8.2009 The respondent no. 2 challenged the said order again by filing Revision Petition which was also dismissed on 05.06.2010 Having lost before all the Revenue Authorities, the respondent no. 2 filed Writ Petition No. 10512 of 2010 before the High Court and in the garb of challenging the mutation entry, attempted to challenge the process of acquisition and compensation which had attained finality in view of the order passed by the High Court and this Court. The High Court was pleased to allow the said Writ Petition No. 10512/2010 by observing that the claim of the appellant-Corporation about its title to the land in question was dubious.
4. Learned counsel appearing on behalf of the appellant-Corporation contended that the father of the respondent no. 2 Bhimsingh in Writ Petition No. 1832 of 1989 and Civil Application No. 4658 of 1994 had only questioned the quantum of compensation in lieu of the land acquired for Dhobi Ghat and D.P Road of 50 & 80 feet and there was no dispute over the question of title after the agreement was concluded and the acquisition of land, and possession was taken by the Corporation. The compensation amount has also been deposited with the Trial Court as back as in the year 1989.
5. According to the learned counsel for the respondent no. 2 the agreement reached at between the father of the respondent no. 2 and the appellant-Corporation was never given effect as enhanced compensation was not paid. The amount which has been deposited by the appellant-Corporation is not in respect of the land in question and thus, title remains with the 2 respondent, though the appellant-Corporation is in possession of the land.
6. We have heard the learned counsel for the parties and perused the record.
7. What we find in the present case is that the dispute relates to mutation; in the revenue record the land has been mutated and recorded in the name of the appellant-Corporation. This was opposed by the respondent no. 2 who had not been granted relief by the competent authorities at the different stages. Therefore, he moved before the High Court against the mutation. The High Court while allowing the writ petition doubted the title of the appellant-Corporation and made the following observations:
“Learned Senior Counsel for the respondent/Corporation then argued that assuming that the petitioner has claimed for title, he ought to have filed suit and ought to have got suitable declaration in his favour. He suggested that the order of Revenue Authorities directing mutation in absence of declaratory decree is not tenable. In any case, he suggested that such entry did not give title to the Corporation. I my view, this submission is devoid of merits because the Corporation's claim of title is rather dubious then the Revenue Authorities ought to have rejected their request for mutation.”
8. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue.
9. In the present case, we find that a disputed question of fact was raised by the parties with regard to the title over the land in question. The appellant-Corporation on the one hand based its claim of title on payment of amount by depositing it in the court and possession of the land taken pursuant to the agreement reached between the appellant-Corporation and the father of the respondent no. 2. On the other hand, the case of the 2 respondent is that the amount was not deposited by the appellant-Corporation with regard to the land in question. In view of the fact that there is a disputed question of fact, we are of the view that it was not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution and thereby reversing the concurrent finding of fact by the competent authorities.
10. For the reasons aforesaid, we set the aside the impugned order dated 26.03.2013 passed by the High Court of Judicature of Bombay, Bench at Aurangabad in Writ Petition No. 10512 of 2010 with Civil Application No. 8801 of 2012 but keep the question of title open for determination in appropriate case, if such claim is made by the aggrieved person. We further make it clear that if the title is decided in favour of one or other person by the Court of competent jurisdiction, the competent authority of the State/Revenue Authority will make necessary corrections as per decision of the court. It will be open to the parties to raise all the contentions before the Competent Court as raised before this Court.
11. The appeal is allowed with the aforesaid observations. There shall be no order as to costs.