Mr.

Homi Framji Commissariat

Mr. Farrukh Homi Commissariat

Hon’ble District Collector, Mumbai

Mr. Hitesh Tejraj Gowani.

Brief facts –

The appellants are aggrieved by a part of the Order dated 14 th March 2019 (the Impugned
Order) passed by the Hon’ble District Collector of Mumbai City under Section 257 of the
Maharashtra Land Revenue Code, 1996.

The Impugned Order had purported to “regularize” an alleged “transfer” of 1/6 th share of
leasehold rights property in Malabar Hill Revenue sought to be effectuated by a deed of
Assignment dated 13th May 1996. The appellant and the other co-owners of the rights state
that this deed of assignment is patently null and void–ab–initio. And, that it does not
“transfer” any right in the property.

The Hon’ble Collector has directed to the alleged assignee, one Hitesh Tejraj Gowani, to pay
a sum of Rs. 2,62,24,136 as transfer charges on account of unearned income, penalty and fees
under Section 295 of the Maharashtra Land Revenue Code, 1996.

The Impugned part of the Order further directs that if the amount is not paid by the said
Gowani, then it would be recovered by force under Sections 267, 268, 269 of the Code –
which raises a bona-fide possibility and apprehension that an amount claimed from a total
stranger to the property may be recovered by action against the property, to the great
prejudice and jeopardy of the co-owners of the property and which would be totally illegal
and patently unjust.

The property in question is a residential building of ground and first floor which always has
been used, occupied and owned by the members of the Commissariat Family for over the past
50 years under lease from the state.

The appellants therefore state that the “Regularisation” of the right in the property is null and
void as the deed of assignment itself is null and void and therefore any occupation by the
assignee is to be termed as unauthorised occupation because Gowani should never have been
in the occupation of the property.
Therefore the amount directed to be recovered from Mr. Gowani and in case he fails to pay
then from an action against the property can be recovered as this will grossly jeopardise the
rights of the co-owners in the property and will give an interest to a total stranger in the
property.

Another fact Is that the appellants have already filed a suit in the Bombay High Court (3729
of 1997) for declaring the said assignment deed and the tenancy document null and void
because it was signed by one sixth owner of an undivided property. In response to this, the
Hon’ble High Court has also passed an interim Order stating that Gowani can not possess or
occupy any part of the property. In the view of the said Order, there can be no question of
Gowani being an Authorised or Unauthorised occupant of the property or the question of the
regularization of the property or recovery of any amount against the property.

Another fact is that the said Gowani is and has never been in possession or occupation of the
property or any part of it.

The grounds of appeal are as follows –

The Impugned part of the Order is contrary to the law, illegal and wholly unjust is was passed
while ignoring the pending suit before the Bombay High Court.

In the Impugned Order passed by the Collector has in effect purported to decide the title to
the said property and to validate the alleged “transfer” and to “regularize” or act upon a void,
non-existent transfer of 1/6th share by Mr. Homi Sorabji Commissariat, the cousin of
Appellant No.1, who holds the 1/6th share of the undivided leasehold rights. The appellants as
co-owners have challenged the said alleged “transfer” in the suit before the Bombay High
Court. The said suit is still pending before the Hon’ble High Court.

The fact that the question whether there was any “transfer” in the first place is still pending
before the Hon’ble High Court was simply ignored by the District Collector before passing
the order in relation to the property. This is a clear case of the Collector going in excess of his
jurisdiction and hence the Order is Illegal.

In the present case, the respondent Hitesh Tejraj Gowani is not and has never been in the
possession of or in occupation of any part of the property. Thus, there is no legal basis for
such an Order. He has also been injuncted by the Bombay High Court. Therefore, his entry in
the Property Register Card is totally illegal and hence should be cancelled.
Another fact is that the knowledge of the suit was apparent in the notes of the collector in the
notice which he took out on the 17th of December 2018. The notes clearly state that the suit is
still pending but the collector has not even considered any effect of the same in his order. He
has blatantly ignored the suit and its possible outcomes.

The attempt to “regularize” a void transaction by recovering a “Transfer Fee” or “unearned

income” is illegal and contrary to the constitutional morality and the same adversely affects
and greatly prejudices the appellants who are the petitioners in the suit pending before the
High Court of Bombay. Any Order of the Collector must therefore await the outcome of the
suit pending before the Bombay High Court.

The Impugned part of the Order was based on the assumption that there was a transfer of
interest of the property whereas no party sought such relief and the Hon’ble Collector was
bound to have refused to recognise any such alleged transfer.

The Impugned part of the Order also does not consider the fact that the said property is an
undivided family residing in the house into which Mr. Homi Sorabji Commissariat
wrongfully and illegally and behind the back of the others attempted to induct a total stranger.
The possession of the said property has always been with the family members of the original
descendants. Neither Section 53 or 295 of the Maharashtra Land Revenue Code are
applicable on this case. This is because the said Gowani is not in the possession of the
property. In the view of the Bombay High Court’s Order, there is no question of any
“unauthorised” occupation or possession liable to regularisation or unearned income.

The Impugned Part of the Order seeks to reward the wrongdoer by directing that in the event
that Mr. Gowani fails to the pay the 2 Crore amount, the same amount will be recovered from
the property attached. If the said Gowani has no interest in the property and the Assignment
deed is null and void then this order seeks to create his interest in the property by recovering
the unearned income amount in the name of Mr. Gowani.