Written Submission 23.3.2018

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SDC/RSC/2018

26th March, 2018

To
The Competent Authority,
Slum Rehabilitation Authority,
3rd floor, New Administrative Building,
Anant Kanekar Marg, Bandra (East),
Mumbai – 400 051.
-------------------------

Re : Declaration of Slum over Plots bearing C. S.Nos.224, 224 (P),


236, 246, 247 AND 248 of Vilalge Worli, Mumbai, forming
part of the larger property of the entire Worli Koliwada.
---------------------------------------------------------------------------

WRITTEN SUBMISSIONS ON BEHALF OF THE


INTERVENERS, THE NAU PATIL JAMAT AND GAONKARI
ESTATE COMMITTEE (WORLI KOLIWADA)

1. The present day city of Mumbai was built on what was originally

an archipelago of seven islands of Bombay Island comprising of

Parel, Mazagaon, Mahim, Colaba, Worli, and Old Woman's Island

(also known as Little Colaba). By 1000 BC, the region was

heavily involved in seaborne commerce with Egypt and Persia.

2. Today’s Worli, then known as “Waarli”, is one of the original

Islands and comprised of the first & oldest settlements on the

seven islands of Bombay. The land in question, “Worli Koliwada

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and Waras land” forms a part of the island of Mumbai Bay upon

which about 800 years ago the predecessors of the original

settlers/migrants came to and settled from Villages of Dhanu,

Vaitarna, Alibaug etc. to carry on fisheries related activities, much

before the seven islands of Bombay was ceded by the Portuguese

from the Sultan Bahadur of Gujarat in the year 1530. The

predecessors of the Villagers dominantly belong to the Fishermen

Community and have been carrying on fishing activities and

fisheries related allied activities since time immemorial.

3. Around 1560, the Portuguese Crown established the “Special

Land Tenure System” upon the islands of Bombay to generate

revenue for the Crown. The land tenure made applicable to the

lands of Worli was the “Pension & Tax” tenure. The word

“Pension” is derived from the Portuguese word “Pencao” which

means a bonus or premium paid by the occupant of the land to the

Crown as tax. A detailed application as to the meaning of the said

tenure is hereinafter.

4. The islands of Bombay mainly consisted of marshy lands and

agricultural lands. During the rule of the Portuguese Crown over

the islands of Bombay, the Siddi, Chief of Janjira made several

attempts to re-posses the islands by force. However, one Rustomji

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Dorabji Patel, successfully warded off attacks of Siddi with the

help of the ‘Kolis’, the original fisher-folk inhabitants of these

islands.

5. In 1661, the Islands of Bombay were ceded to the Crown of

England by the Portuguese as part of the Dowry Treaty upon the

marriage of Infanta Catherine of Portugal with King Charles II of

England. The British Crown continued the said tenure revenue

system from the land occupants of the Worli village, thereby

introducing a closely associated sub-tenure known as “Fazandari”.

The same was recognised under the Bombay City Land Revenue

Act, 1876. Long prescription of this land tenure system changed

the nature of the tenure altogether whereby the Fazandar had no

interest in the lands but only to the extent of receiving rent on

behalf of the Crown. The same has been recognized in several

cases of compensation under the Land Acquisition Act, wherein

the overall award made to such a Fazandar was the rent but no

rights in such lands.

6. In 1879, an epidemic broke upon the 7 Islands of Bombay thereby

unleashing a havoc in terms of management, sanitation and

revenue generation. The British Crown therefore implemented

several legislations for the better management of the City of

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Bombay, some of which include the Transfer of Property Act of

1882, the MCGM Act of 1888, the Land Acquisition Act of 1894

and the Bombay Improvement Trust Act was enacted in 1898.

7. Post the epidemic, in year 1898 the British Governor at that

time brought the proceedings of land acquisition for various

purposes. The major lands of Bombay city were acquired

through various land acquisition schemes.

8. On 25th June, 1919, Bombay Improvement Trust floated

Scheme No.52 under which 457 Plots which comprised of the

entire Worli Village and Waras land were proposed to be

acquired. The acquisition scheme was however strongly

opposed by residents of Worli Koliwada. Consequently, the

lands in the village were duly de-notified and withdrawn from

the acquisition proceedings the fact of acquiring and de

acquiring establishes the membership rights of the Villagers in

the Village and Waras lands.

9. In 1925 the Bombay Improvement Trust Transfer Act was

enacted.

10.In 1929 the Supplemental Bombay Improvement Trust

Transfer Act was enacted.

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a. The Cumulative effect of the above referred two Acts is

that, in so far as the lands acquired by the Bombay

Improvement Trust is concerned, only those would vest

with the Municipal Corporation. If lands were not

acquired they would continue in the manner that they

were owned or held.

b. By the Supplemental Bombay Improvement Trust Act,

1929, the tenure and original settlements were

undisturbed and the Corporation did not get the said

lands from the Bombay Improvement Trust.

11.In the year 1925, Bombay Improvement Trust, passed a

Resolution to the effect that no rent would be collected from

the Villagers of the Worli Koliwada Village in respect of the

Waras Land till the question of withdrawal of acquisition had

been finally decided.

12.Subsequently followed by an Agreement dated 14th

December, 1932 arrived at by and between the Worli

Koliwada Villagers and the Officers of the Improvement

Committee, that a Resolution would be passed pursuant to

which the villagers would continue to own use and occupy and

thereby enjoy all the rights and privileges enjoyed by them in

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respect of the Waras land prior to the acquisition proceedings.

It was also agreed that the monies received by the Villagers

under the Scheme would be returned to the Committee, which

in turn would entitle the Villagers with all rights over the said

land.

13.It is pertinent to note that the original 457 plot owners of the

lands in the Worli Koliwada village also proportionately

distributed amongst themselves the Waras land area, which

area was appurtenant to the Koliwada land and was utilized by

the said villagers from time immemorial for carrying on their

allied fisheries activities. The said plots in respect of which

declaration of Slum Rehabilitation Area is being sought are

admittedly part of the said Waras land. The definition of

Waras land itself means legal heirship and is an ancestral land

of the original inhabitants of the Worli Koliwada. The Waras

land is appurtenant to the village land and is till this date

meant for beneficial enjoyment of the activities associated

with fishing on the said land. The basic use to which the said

land is put to is drying their fishing nets, grazing their cattle

and for their fishing trade purposes. This user of the said land

is from time immemorial. The said rights have been used and

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in existence in favour of the villagers from time immemorial.

This fact has been repeatedly confirmed by and recorded in

the Official Bombay Government Gazettes over the years and

by several historians.

14.Accordingly, on 5th April, 1933, the Improvement Committee

passed a Resolution to that effect, wherein it was agreed that

the compensation paid to the villagers would be duly refunded

to the Trust and the villagers would continue to enjoy the

same rights of ownership and user over the said Waras Land

as they had been enjoying before the Waras Land was notified

for acquisition. It was further considered that Fazandars

would be appointed to receive such monies back and that the

said monies would be recoverable under a “P & T” (Pension

& Tax) system from such Villagers as Fazandari Rent. It was

further confirmed that a certified copy of the said Resolution

alongwith the stamped receipts from the Improvement Trust of

the amounts duly returned by the Villagers would constitute

the title of the villagers to their shares in the Waras Land.

Accordingly many of the villagers duly refunded the monies

which were received by them. A few remainder of the

villagers who have were left to refund the said amounts have

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always been ready and willing to refund the monies and are

alos till this date ready to refund the monies to the MCGM

who is the predecessor-in-title of the Fazandars.

15.Moreover, the understanding of the meaning of the concept of

the term “pension & tax tenure” can be considererd from the

Bombay City Land Revenue Act, 1876. It is relevant to note

that the term ‘pension takes its origin from the Portuguese

word ‘pencao’ which means a bonus or premium paid for the

fee-simple on the compromise of a doubtful tenure. The

payment of ‘pension’ dates from Aungier’s Agreement of

1672, which commuted, in consideration of the payment,

whatever rights the Crown or Company possessed over the

estates and lands were thereon in consequence acknowledge

by the said instrument deemed to be freehold properties or

private properties subject to the payment of a small tax called

“Pension and Tax”

a. In this context an extract of Page no.XXXI of Revenue

Act, 1876 may be referred here

“As regards the rights of Government to revise and raise the

several rates, they continue : “First then with respect to the

“Pension and Tax” ground, as the rate to which it is liable

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would seem to have been invariable for nearly 80 years, or

since 1759, and was only then assessed to the additional rate

called “Tax”, the other of “Pension” having existed since the

time of the Portuguese, for an extraordinary purpose, viz, to

defray the expense of strengthening the defences of the Island,

it may fairly be inferred that nothing short of some great

emergency would ratify any deviation from what has been

sanctioned by such long prescription.”

As such it is clear that the motive of levying such tax on land

owners was only for defraying the expenses of the Crown and

not as a rent for usage of the said lands.

Moreover the decision of Perry C.J. in Dorabji vs. Bishop of

Bombay (1848) followed in Yeshodabai and Gopikabai vs.

Ramchandra Tukaram clearly placed it beyond doubt that the

“Fazindar” has no interest in the land beyond the annual rent,

and this has been recognised in numerous other compensation

cases under the Land Acquisition Act as well in which the

invariable practice has been to award the Fazindar no more

than the capitalized value of the rent.

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16.Moreover, even under the Resolution No.721, passed by the

Improvement Committee on 21st February, 1933, it was

confirmed that the Villagers who return to the Trust the

monies received or to be received by them under the Award

and in turn pay the agreed Fazandari Rent to the Trust shall

enjoy rights of ownership and user over the said Waras land.

We crave leave to refer to and rely upon the said Resolutions

of the Improvement Committee when produced.

17.Under Section 91(A)(1) and 91(A)(4) certain amendments

were brought into the MCGM Act, 1888 in the year 1933.

The Section 91(A) of the Act reads as follows,

“Section 91(A)(1) : From the date on which the City of

Bombay Municipal (Amendment) Act, 1933, comes into

operation there shall vest or revest in the Corporation, as the

case may be, subject to all the charges and liabilities affecting

the same, to be held by the Corporation for the purposes of

this Act, subject to any restrictions and conditions contained

in the City of Bombay Municipal (Amendment) Act, 1933, all

the immovable and other property and all other interests and

rights of the Board of Trustees for the Improvement of the City

of Bombay constituted under the City of Bombay Improvement

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Trust Transfer Act, 1925, including all the estate, right, title

and interest of the said Board in and to the lands specified in

Schedule W and Schedule X and in the reclaimed lands

specified in Schedule Y and shown on the deposited plans.”

It must noted that upon the Waras lands being de-notified

from the acquisition by the Resolutions of 1933, no rights of

the said lands passed on to the Bombay Improvement Trust

nor to the Corporation, thereby the villagers retaining the said

rights. Moreover, the lands covered by the Worli Koliwada

Village and Waras Land are not covered by the said Schedule

W, Schedule X or Schedule Y of the MCGM Act, 1888. This

aspect was unfortunately not considered in the judgement of

1994.

18.It is also required to be considered that, by virtue of Section

48(2) of the Land Acquisition Act, when the acquisition as

was be notified by the Improvement Committee was in due

course withdrawn passing of the two Resolutions of 1933, the

very fact of acquisition intimation and withdrawing the said

acquisition establishes that the Ownership Right vested in the

Villagers. The Judgment passed in 1994 in Suit No.422 of

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1973 does not however consider this aspect also. This aspect

was unfortunately not considered in the judgement of 1994.

19.After independence the Maharashtra Land Revenue Code

(Bombay Land Revenue Code), 1966 was enacted wherein the

Village and Waras lands were qualified as Class I occupants

which clearly indicate their freehold interest in the lands being

the owners and title holders. This aspect was unfortunately

not considered in the judgement of 1994.

20.Our clients’ further state that the entire portion of the Waras

Land has always been under the use and occupation of the

villagers of the Worli Koliwada Village. The said Waras land

comprises of several structures of permanent nature which

have been over the years let to several persons, who have been

duly paying rent for the use of the said structures as tenants of

the said Villagers. The said structures being of permanent

nature are being duly assessed for property tax by the Mumbai

Municipal Corporation Authorities. We crave leave to refer to

and rely upon the copies of the rent receipts and assessment

bills when produced. This aspect was unfortunately not

considered in the judgement of 1994.

21.OBJECTIONS ON SLUM DECLARATION

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1) Preliminary objection

a. The proceedings under Section 3(C) of the Maharashtra

Slum Areas (Improvement, Clearance and

Redevelopment) Act, 1971 (the Act) are not

maintainable on the following grounds:-

i. Section 2(h-b) of the Act defines ‘Slum

Rehabilitation Area’ – means a Slum

Rehabilitation Area declared as such under sub-

section (1) of Section 3(C) by the Competent

Authority in pursuance of the Slum Rehabilitation

Scheme notified u/s 3(B)

ii. Section 3(A) of the Act provides for

establishment of Slum Rehabilitation Authority

for implementation of Slum Rehabilitation

Scheme which is within the power, duty and

function of the authority to formulate and

implement.

iii. Section 3(B) of the Act provides for preparation

of a General Slum Rehabilitation Scheme and the

procedure for the same. Every scheme is

required to be notified in the Official Gazette.

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Under Sub-section 4 thereof every Slum

Rehabilitation Scheme is mandatorily required to

provide for matters mentioned in Sub-clauses (a)

to (g) thereof.

iv. Section 3(C) applies only after publication of

SRS and pertains to declaration of Slum

Rehabilitation Area on being satisfied justifying

such a Declaration.

Therefore, the pre-requisite of invocation of

Section 3(C) is the

1. Existence and applicability of a Slum

Rehabilitation Scheme to the concerned

plot of land.

2. The SRS being notified

3. The SRS having matters mentioned in 3(B)

(4)

4. Since Section 3(C) pertains to declaration

of Slum Rehabilitation Area by an Order

and on being satisfied as regards justifying

such declaration it is for the person seeking

such declaration to show that the pre-

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requisites of Section 3(C) are complied.

The Declaration u/s 3(C) being required to

be published in the Official Gazette makes

it all the more incumbent for person

seeking a declaration to comply with the

requirements of the section.

There is no compliance of the requirement of

the Section and therefore on this preliminary

ground the proceedings ought to be dismissed

at the threshold.

b. The proceedings u/s 3(C) pertain to

i. Declaration of Slum Rehabilitation Area

ii. On being satisfied that the circumstances in

respect of any area justify its declaration as a

Slum Rehabilitation Area under the said scheme.

The Applicant has not satisfied that the circumstances

in respect of the said Plot of land justify its declaration

as a Slum Rehabilitation Area. The parameters of

Section 4 and/or Section 3(B)(4) have not been

complied with.

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c. Moreover the provisions of Section 3(C) are

invoked on the very basis that the Villagers are the

owners of the land. If the case of the Applicant is that

the Villagers are not owners, they would not have

required any Declaration under 3(c) and could have

directly had Annexure 2 issued for the implementation

of the Scheme.

2) Notwithstanding the above and most importantly the main

consideration is regarding declaring a Koliwada Village and

its Waras land as a Slum Rehabilitation Area. The Village and

Waras land are by their inherent nature running from more

than 800 years such that there are existence of small dwelling

houses, huts etc., and are not by any stretch of imagination a

Slum. The original authentic manner in which the Inhabitants

reside is the nature of the Village which cannot be equated as

a Slum. The Village and the fishermen are the first and

original inhabitants of the City. Taking away the Village and

the Fishermen out of their original way and manner of living

would mean taking away the original substance of the City

away from it. At the hands of unscrupulous builders who

want to for monetary gain just grab any land for development,

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the provisions of the Slum Act ought not to be invoked and

misused. The fact that judicial notice has been taken off the

Village and its Waras land is running from the 1800’s. The

entire settlement of the Fishermen who comprise the Village

cannot be put to such hardship on account of their ignorance

and lack of legal action taken by them. The Villagers have

remained within their locality and have been disturbed at the

hands of some encroachments. These encroachments have

been noted in the decisions of the Courts. However, this does

not in any manner indicate that the Village has become a

Slum.

3) Survey:

a) No Survey has taken place whatsoever.

b) The Survey that had taken place is not a proper and legal

survey on account of the following:-

a. No time is mentioned.

b. No purpose is mentioned.

c. The Survey is limited to 5CS Nos.

d. The Panchnama has not been signed by the

Authority and its Officers.

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e. The owners and occupants were not given any

Notice of the Survey to be conducted.

f. The survey was not even completed.

g. The survey does not reflect any conclusive proof and

is not reliable document.

c) Survey cannot be carried out.

a. By Notification of 17th July, 2000 no survey can be

carried out for Slum in Village land.

b. By Notification of 8th May, 2012 the Koliwada has

been notified as Gaonthan meaning a Village.

c. Thus no Survey can be carried out on the said plot of

land which is a Village land and therefore the

provisions of 3(C) of the Slum Act will not apply.

4) The Declaration of Slum has already been rejected. By Order

of March, 2015 there is an internal report and finding that the

said plot of land is not Slum on the basis of the inspection of

March, 2015. There is a finding of fact in May, 2015 and

December, 2015 that there is no Slum on the said plot of land.

5) The High Court Writ Petition passing directions for deciding

the 3(C) proceedings is obtained by the Applicant herein

without pointing out the rejection of the Declaration of Slum.

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6) The definition of the term “Owner” under the Slum Act covers

the Respondent. The Respondents are owners of the structures

and land which are let out on Lease. These structures are

assessed to Tax and Assessment Tax is paid to the MCGM by

the owners. The owners recover Lease Rent from the Tenants.

The proofs of such Assessment Bills and Rent Receipts are

produced. Even going by this definition, the Respondents are

owners.

22.SUBMISSIONS TO POINTS OF THE APPLICANT

a. Reliance upon a Google Map – This is not any evidence

to lead to any conclusion of Slum.

b. 1994, 2004 and 2006 judgements – First in foremost

misconception is on the interpretation of the judgement.

For reasons stated hereinabove the judgement does not

cover all the aspects of the matter and is per incuriam of

all established norms, laws and facts. In any case the

3(C) initiation itself shows that the persons invited are

owners. Furthermore, the definition of Slum Act covers

the Respondent. The argument that the judgement is

not put to execution is factually incorrect. Execution by

way of Chamber Summons No.158 of 2016 is pending

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in the Hon’ble Bombay High Court. The matters of the

judgement and its implementation is therefore sub-

judice and there can be no interference with the same in

the present proceedings.

23. By the Municipal Corporation’s letter dated 27 th November,

2016 to the Villagers owning/occupying the Waras land it has

admitted that the Resolution of 1933 by the Bombay

Improvement Trust withdrew the acquisition proceedings in

respect of the Waras land whereby the original holders/owners

became owners thereof. We crave leave to and rely upon such

individual letters when produced.

24. The plot CS No.224, 247, 248 and 236 are the plots relating to

the present 3(C) proceedings. From a bare perusal of the

property cards in respect of the CS No.224. 247, 248 and 236

it is clear that the Interveners have locus to participate and

more importantly to object and get 3-C proceedings dismissed.

Especially with regard to Plot bearing CS No.244

admeasuring approximately 1,43,482 sq. mtrs which is the

common plot of land the use and occupation of which is

jointly and commonly enjoyed by all Koliwada villagers. It is

the common ground and the open portions of land which

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belongs to the villagers collectively. With regard to plot of

land bearing CS No.224, there is no specific name given under

the column of the person having benefit of ownership or the

mode of acquisition or devolution of title. In fact, it is clear

from the records running from time and judicial notice has

also been taken of the fact that the said land is owned by the

Villagers. In these circumstances that there is no individual

name appearing property card for CS No.224 significantly. It

must noted that the Plot bearing CS No.224 by very nature is

the plot of land forming part of open land, path ways, gully

and other vacant places between houses and other plots and

bearing different CS numbers and in the nature of use and

residential plans which is not demarcated or identified and

thus there can be no real scope of the same in subject matter of

3(C) proceedings. This issue may be duly be considered in the

interest of the villagers separately at the time of dealing with

the merits of the 3(C) proceedings.

25. The cumulative effects of the facts stated hereinabove, which

run from a period of more than 800 years prior to date makes

it clear that the Villagers and other members are owners in

respect of the village and waras land. If the property cards of

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the CS No.(except the property card of CS no. 224) is a

perused, it becomes clear that at Serial No.10 “ Name of

person in beneficial ownership” , the name of the individual

member is against Item “C” in column at Serial No.10

mentioned hereinabove. The remarks against Item “C” is the

manner in which the member has acquired ownership read

with noting in Column No.17, that is as per Case 574 of

Waras Estate Scheme No.52 that this property was notified for

the acquisition vide BIT Notifiation dated 30-10-1919 and that

the Government vide its G. R. G. D. No.1193 dated 4/5/1931

has withdrawn the same. In fact, if Column No.9 is perused it

become clear that there is no ground rent due to the

Government and the Government is collecting assessment in

respect of the land from the Owners. All of these makes it

clear that even the Government and the Corporation

understand the established rights of the several individuals

who are the Owners of the Village Land and the Waras Land.

In view of the aforesaid, the Respondents have locus because

they are the owners of land within the CS Nos. covered in the

3(C) proceedings.The cumulative effect of the aforesaid

makes no manner of doubts.

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26. Without prejudice to the above it is submitted that 33(10) of

the DCR is not applicable and the only applicable DCR would

be 33(7) or 33(9).

27. In addition to the above, the Applicant has not given any

satisfactory answers to the following objections which are

already on record before the Hon. Authority :

(i) Regarding cess property within the area proposed to be

declared as Slum;

(ii) Regarding the MCGM having objected to the SRA Scheme

(iii) The Applicant is taking the stand that the MCGM is the owner

of the entire land, but while answering the points they are

reflected the issue and not satisfying this authority as regards

“Owners (according to the Applicant) objections” to the SRA

Scheme.

(iv) That Slum like conditions do not exist in the area proposed to

be declared as slum. There is no explanation that how DCR

33(7) or 33 (9) are not applicable. Moreover, the Applicant

has not even disclosed which would be applicable DCR and if

DCR 33 (10) is the applicable DCR.

(v) The Applicants have stated that the area is encroached by

structures with very few open and/or vacant lands. The

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Applicants have made contrary statement, stating that no

structures covering more than 50 % of the total area exist,

hence condition for 33 (9) Scheme are not applicable.

(vi) The Applicant has made a statement that though the hutments

were censused CTS No.224 (P) was a censused slum. Photo

pass were not issued as it was deemed as a private land. This

statement is in correct as the Dy. Collector, Mumbai City,

under his Order dated 18th June, 1976, cancelled the said

censused slum as well as the photo-passes issued for the CTS

No.224 (P) recording therein that the said land does not belong

to the Government. Moreover, by its letter dated 19th

February, 1981, the Collector’s office confirmed that the

property bearing CTS No.224 of Worli Division was not a

Government land but a private land held on erstwhile Pension

and Tax tenure. Therefore, the Applicants statements that the

said property was erroneously deem private land is in correct.

(vii) The statement of the Applicants that the Waras is encroached

by and in use and occupation of about 700 to 800 hutment

dwellers and not in use and/or occupation of the Worli

Koliwada Villager is false and unjustified. The Applicants

have vehemently denied that 138 open land as per MCGM

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records without any supported documentation and/or

justification.

(viii) The Applicants have stated that most of the Villagers having

structures on the said land are only Imla Malik and have no

further right in the said land and that even, if the said Imla

Malik/Villagers have been receiving any rent from the

occupation of the said structures or have been paying property

taxes thereon is in material cannot be justified.

(ix) As per the Applicants, the CS No.224 is spread across the

entire Koliwada and therefore proves the locus of our clients,

who are in representative capacity of the of the Worli

Koliwada Villagers.

Advocate for Intervenors

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