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Levy Non-agricultural tax and penalty for using the land that does not belong to the claimants: Bombay High Court

No right, title or entitlement shall be awarded to those individuals who are merely in possession of the land and do not own the same. Those individuals shall be considered ranked encroachers and shall be levied non-agricultural tax as well as penalty for the land that does not belong to them. A single-judge bench comprising of Justice Milind N Jadhav, while adjudicating the matter in Ramesh R Pandey & Ors. V. Municipal Corporation of Greater Mumbai; APPEAL FROM ORDER (ST) NO.4532 OF 2021, dealt with the issue of possession of land and its difference from ownership of the same.

Plaintiffs are the owners of a certain land which had an open space. The plaintiff’s contention is that the open space is in the exclusive possession of the plaintiffs and is being used by them for parking of their vehicles, and for loading and unloading goods from the suit structures. It is stated that some portion of the open space was acquired for the widening of the Link road. If that be the case then the Plaintiffs should have placed on record the details of acquisition so as to enable the Plaintiffs to claim right, title and entitlement to the suit open space. This has admittedly not been done. The defendant’s contention is that the defendant corporation wanted to construct a public toilet on some portion of the open space. This notice was submitted to the plaintiffs. The plaintiffs have approached the Court by filing the original suit stating that the Corporation is constructing the toilet block without following due process of law.

The learned counsel appearing for the plaintiffs, stated that the Corporation has not followed the due process of law and has not taken possession of the suit open space from the Plaintiffs as is required under the law. The exact place where the toilet block is to be constructed is completely uncertain and is not borne out by the record. The learned counsel appearing for the respondent stated that the said order does not confirm any right, title or interest in the land to the encroacher i.e., the plaintiffs. She submitted that the suit structures and the suit open space are not precisely and properly defined in the suit plaint and thus in the absence of specific details pertaining to the suit open space, the suit open space in relation to each Plaintiffs and the specific area of the toilet block which is being constructed, the suit filed by the Plaintiffs is not maintainable.

The Court upon considering the aforesaid facts dismissed the appeal and stated that; “In the present case the Plaintiffs have not filed any suit for declaration of title and have merely filed a suit for injunction. Therefore, the facts of the case referred to and relied upon by the Plaintiffs are clearly distinguishable. The Plaintiffs led evidence in the trial court and produced several documents pertaining to the existence of the censused structures since 1976 and thus sought protection of the structures from the action of the Corporation. The trial court in the above two suits held that the Plaintiffs were entitled to perpetual injunction in respect of the suit structures only. The Plaintiffs are ranked encroachers as certified by the N.A. order. The Plaintiffs have been levied N.A. tax and penalty for using the land which does not belong to them.”

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