‘Is this inaction in keeping with their claim of ownership? Certainly not’

The Ministry of Defence has failed to establish the claim of title to the land in question. However,this is not so with the claim of Government of Maharashtra. Their claim stands established in view of the provisions of Section (294) of the Maharashtra Land Revenue Code,1966. The MLRC,1966,came into force on 15.8.1967 and there is no evidence to show that on that date the land in question was occupied by anybody. Moreover,the same has been corroborated by other factors viz. admissions on the part of the MoD,absence of entry in respect of the land in question in the MLR maintained by the DEO,and the inaction on the part of the Army/MoD to assert their alleged right. The commission therefore holds that the land in question belongs to the GoM.

R C Thakur,who is the chief promoter of the Adarsh CHS,has affirmed in his affidavit dated 15.2.2011 to the following effect,“I state and submit that the society was proposed much prior to the Kargil war and hence there was no question of the society being formed for the purpose of Kargil heroes and/or the flats to be constructed only for Kargil heroes. I further state and submit that no such condition is imposed on the society by the state government in the letter of content dated 18.1.2003…” Earlier,Thakur had stated that the Adarsh CHS was formed in 1984 and registered on 28.9.2004.

The letter dated 25.9.2000 addressed to Vilasrao Deshmukh,the then chief minister,states,“The society basically of serving and retired defence officers,including officers having served in Operation Vijay at Kargil,has been struggling for allotment of a small piece of land in Block 6 of Colaba Division…” There are similar references to Army officers who are dedicated to the service of the motherland in other letters addressed on behalf of the Adarsh CHS to the chief minister,revenue minister,etc.

Similarly,there is no GR or notification issued by the GoM providing reservation of the land in question for defence personnel or Kargil War heroes. In fact,at the time of the argument,the learned counsel for the MoD,GoM or even Asarsh CHS uniformly submitted that there was no such reservation. In view of this position,there is no difficulty in recording a negative finding…

Tug of war

This highrise which was completed in 2010 has given rise to several controversies right from the allotment of plot to the allotment of flats. The controversies gained notoriety,thanks to the media,because of the alleged involvement of top political persons including three former chief ministers,top military officers including two former chiefs of army staff and a former naval chief,and several serving and/or retired bureaucrats and their relations. The controversy about the title and possession of the plot was also taken to the Lok Sabha by way of two starred questions. The issue regarding the title of the land in question is the most crucial issue of all the 13 terms of reference. There are two contenders,GoM and MoD,who lay their respective claims of title on the land of question. There is virtually a tug of war between the two.

It may be pointed out that in the year 1967,it was the Municipal Corporation of Greater Mumbai that was the planning authority for the BBRS (Backbay Reclamation Scheme) and it was only after 1985 that the Mumbai Metropolitan Region Development Authority became the planning authority. The procedure for sanctioning the development plan,as stated by Dikhle [superintendent,city survey and land records,Mumbai is to the effect that first a draft plan is prepared and published inviting objections,if any,and thereafter changes are made accordingly and the plan is sent to the government for sanction under Section 31 of the MR and TP Act. Even at that stage,the MoD had not raised any objection to the proposed changes to be made in the development plan.

The second limb on which the claim of the MoD to the title of the land in question is their alleged previous possession. In this respect,references may be made to certain statements made by Brigadier Saxena (Deepak Saxena,witness on behalf of MoD) in paragraphs 16 and 24 of his affidavit. He has affirmed that the land in question has always been in possession of the military authority and this fact,according to him,is clear from certain letters to which he has made reference in paras 17 to 22. Going by the chronological order,the earliest document referred to by him is the letter dated 30.12.1983 addressed by the collector,Mumbai,to the Adm. Commandant,Station Headquarters,Colaba. The subject of this letter is “Lands,Bombay,strip of land adjoining Cuffe Parade and near BEST bus depot to hand over to the BMC”. By this letter the collector informed the Adm. Commandant that the land was required to be handed over to the BMC for road widening. But at the time of site inspection it was mentioned that part of the said land was fenced with barbed wire by the Army. The reply to this letter was given by Lt Col S R Bidkikar on 13.1.1984,wherein it was contended: “The land on either side adjoining the BEST bus depot is defence land and is in occupation of the Army [for long. Since it is being used as training area,it has been vacant. However,part of this land was occupied by civilian employees. Since they had a tendency to further encroach on this land,the area has been fenced by us to prevent this.”

Brig. Saxena has also referred to and replied to four letters — dated 21.9.1999 addressed to the chief minister,dated 13.1.2000 addressed to the revenue minister,dated 7.2.2000 addressed to the chief minister and dated 2.6.2000 addressed to the chief minister. All these letters addressed on behalf of the Adarsh CHS were for allotment of government land in Block No. 6 of Colaba. What Brig. Saxena has emphasised is the fact that all these four letters contain a clear admission on part of the society to letters to the effect that the physical possession of the land sought to be allotted has already been with the Army for the last 25-30 years.

KHUKRI PARK

The conduct of the Army/MoD in connection with the land in question is not at all consistent with their claim of ownership,much less ownership by adverse possession. Admittedly,the MCGM,which was then the planning authority for the area under the BBRS,had prepared a draft development plan and published it in the newspapers inviting objections from the persons/parties affected or likely to be affected. It is not in dispute that the original Captain Prakash Pethe Marg,which was then in existence,was around 30 feet in width,but in the draft development plan it was proposed to be widened up to 200ft by including the adjoining land. It is to be noted that the land in question abuts the said road. Now if it is the claim of the MoD that they were in adverse possession of the land in question,then it would have been most natural for them to have raised objections to the draft development plan so far as it related to the proposed inclusion of part of the land in question on Capt. Prakash Pethe Marg.

There is no explanation why the Army/MoD allowed the planning authority to deal with the width of Capt. Prakash Pethe Marg,first by proposing to widen it and later by reducing the proposed width to a considerable extent. The proposed width of the said road certainly affected a major portion of the land in question,but no objection or protest was made by the Army,nor was any suggestion made by them in connection with the proposed widening of the road. This inaction and apathy on the part of the Army/MoD is certainly not consistent with their claim of being the owner of the land in question.

The same attitude of difference on the part of the Army/MoD is seen in connection with the allotment of land to the Adarsh CHS by the GoM as well as the subsequent construction of the building started by it upon the said land. We have already seen that the GoM issued a letter of intent dated 18.1.2003 and a letter of allotment dated 9.7.2004 to the Adarsh CHS. But no objection was on the ground that it was illegal on the part of the GoM to make such allotment when the land was in actual possession of and belonged to the Army/MoD. Brig. Saxena has admitted in paragraph 106 that prior to and after the allotment of the land to Adarsh CHS,the MoD was aware of the land being proposed to be allotted and actually allotted to the said society. It was pointed out by Shri Khambata [Darius Khambata,additional solicitor general appearing on behalf of the MoD that when several top officers of the Army and Navy themselves were interested in getting flats in the said society,the lower officers would not dare to raise a voice of protest against the allotment of the land in question. There may be some substance in this explanation,but this inaction on the part of the Army/MoD is not consistent with their claim of title to the land in question.

The evidence on record further shows that after the allotment of the land,the society undertook construction work on the building which ultimately went up to 103m high in the sky. The construction of the Adarsh building is in close vicinity of Army units and apparently a threat to its security. But even then,no word of protest was uttered by the Army/MoD,who allowed the construction work to come up.

The Army claims that it was in possession of the land and that it had set up an eco-park called Khukri Garden upon it,which was inaugurated in 1996. The evidence on record shows that sometime around 2004,the said garden was demolished by pulling down the compound wall and fencing around it as well as by cutting trees standing there. The Army,which claims to have been looking after the maintenance of the said garden,did not try to stop such a destructive act being done on the property which,according to them,was of their ownership. There is nothing on record to show that the Army made any representation to the GoM for stopping the demolition of the said park,nor did they approach any court of law for an injunction to prevent the garden from being demolished. Is this conduct of inaction on the part of the Army in keeping with their claim of ownership? Certainly not.

The net result of the foregoing discussion is that the MoD has miserably failed to establish its adverse possession of the land in question. In the first instance,the possession of the land in the form of Khukri Park by the Army was not in the nature of adverse possession since there was no denial of the title of the GoM,nor any assertion on the part of MoD that the land belonged to them. The Commission is of the opinion that it was not proper and ethical for the MOD to raise such a plea of adverse possession against the state government as it is not in keeping with the maintenance of harmonious relations between the Centre and the state. The land in question is not the land belonging to or occupied by an enemy but it is very much part and parcel of the land of the country. Therefore the plea of adverse possession raised does not appear to be fair and smacks [of an unwarranted inimical attitude.