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2013 DIGILAW 387 (BOM)

Sanjay Bapurao Gaikwad v. State of Maharashtra

2013-02-15

A.P.BHANGALE, A.S.OKA

body2013
JUDGMENT A.S. OKA, J.:- 1. Heard learned counsel appearing for the Petitioners and the learned Government Pleader for the Respondents. Rule. The Government Pleader waives service for the Respondents. Considering the narrow controversy involved, this Petition is taken up forthwith for final disposal. 2. The Petitioners are claiming to be the owners of the lands which are more particularly described in Paragraph 3(A) of the Petition. The contention raised in this Petition is that the original owners filed the Returns under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the said Act of 1976). In the Petition, a reference is made to the entries effected in the revenue record which show that a part of the property held by the Petitioners was declared as excess land under the provisions of the said Act of 1976. In the revenue records, an entry was made that out of the land held by the Petitioners, an area of 39041 sq. meters was declared as excess land under the said Act of 1976. 3. In the Petition, a reliance is placed on the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the said Repeal Act). It is contended that with effect from 29th November 2007, the Repeal Act was adopted by the State of Maharashtra. The contention in the Petition is that as the possession of the alleged excess lands was not taken over in accordance with the provisions of Section 10(5) of the said Act of 1976 before 29th November 2007, the proceedings under the said Act of 1976 stand abated. 4. We may note here that the Petitioners are relying upon the Sale Deeds dated 3rd June 1985 and 6th June 1985 executed by their predecessors in title. It appears that an application was made by the Petitioners on 4th March 2012 to the Competent Authority contending that the entries of the State in the revenue records in respect of excess land may be deleted in view of the Repeal Act. 5. Learned counsel appearing for the Petitioners submitted that even the affidavit in reply filed by the Respondents shows that before the relevant date, the possession of the land allegedly declared as excess land was not taken over under the provisions of the said Act of 1976. 5. Learned counsel appearing for the Petitioners submitted that even the affidavit in reply filed by the Respondents shows that before the relevant date, the possession of the land allegedly declared as excess land was not taken over under the provisions of the said Act of 1976. He relied upon a decision of the Division Bench of this Court in the case of Voltas Ltd. & Anr v. Additional Collector and Competent Authority, Thane & Others1 as well as the decision of the Apex court in the case of Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and Others2. He, therefore, submitted that as a consequence of failure to take possession, the proceedings under the said Act of 1976 will not survive and even assuming that there is a Notification under Section 10(3) of the said Act of 1976, the alleged excess land will revert back to the original owners. The learned Government Pleader opposed the prayer of the Petitioners by relying upon a reply filed by the Additional Collector and Competent Authority, Pune Urban Agglomeration, Pune. 6. We have carefully considered the submissions. The law which is laid down by the Apex Court is crystal clear. Notwithstanding the Notification issued under Section 10(3) of the said Act of 1976, if the possession of the excess land is not taken over by the State Government before the repeal, the proceedings under the provisions of the said Act of 1976 will automatically stand abated. 7. It will be necessary to make a reference to the averments made in the Petition where it is specifically alleged that the possession of the excess land was never taken over. In the reply filed by Subhash Ramchandra Dharmadhikari, the Additional Collector and Competent Authority, in Paragraph 2, it is stated thus: 2. I say that it appears from available records in my office i.e, the register maintained by this office in which the list of the cases is prepared where notifications under Section 19(3) and 10(5), have been issued but actual possessions has not been taken by the Government. The U.L.C. Case referred in the present Petition is at Sr.No.457 of the said register. The U.L.C. Case referred in the present Petition is at Sr.No.457 of the said register. I further state that in the present case the notification under Section 19(3) seems to have been issued on 18/01/2007 so also notice under Section 19(5) seems to have been issued on 06/09/2007 by this office, as recorded in the Register. The possession of the land under question is not taken by the Government till date. It appears that after publication of notification under Section 10(3) of Urban Land (Ceiling and Regulation) Act, 1976, no further steps have been taken in the matter including taking actual and physical possession of surplus land in question. (Underlines added) 8. It will be also necessary to refer to Paragraph 3 of the reply which reads thus: 3. From the available records, I cannot say whether notice under Section 19(5) of Urban Land (Ceiling and Regulation) Act, 1976 was issued or not and no record is available in my office, to verify as to whether actual and physical possession of surplus land in question is taken, or not. (Underlines added) 9. There appears to be some inconsistency in the averments in the two paragraphs. However, even if any one of the two paragraphs is accepted as correct, it is apparent that it is not the specific case of the State Government that the possession of the excess land was taken over before the cut off date. In fact, there is no denial to the averments made in the Petition that the possession was not taken over before the cut off date. 10. Therefore, as held in the aforesaid decisions of this Court as well as of the Apex Court, the legal consequence is the abatement of the proceedings under the said Act of 1976. In the circumstances, the prayer clause (b) of this Petition will have to be granted. 11. As far as prayer clause (c) is concerned, we will have to direct that all the consequential steps will have to be taken by the Respondents. 12. The Application made by the Petitioners before the third Respondent for regularization of the Sale Deeds referred to above is pending. If the same is still pending, it will have to be decided by the third Respondent in the light of the observations made in this judgment and order. 13. 12. The Application made by the Petitioners before the third Respondent for regularization of the Sale Deeds referred to above is pending. If the same is still pending, it will have to be decided by the third Respondent in the light of the observations made in this judgment and order. 13. Hence, we pass the following order: ORDER : (a) The Rule is made absolute in terms of prayer clause (b): (b) All consequential steps as prayed for in terms of prayer clause (c) shall be taken within a period of three months from today; (c ) If the application dated 17th January 2007 made by the Petitioners is still pending before the third Respondent, the same shall be decided within a period of three months from today; (d) It is obvious that while deciding the said application in accordance with law, the third Respondent is bound to take into consideration this judgment and order; (e) The rule is made absolute on above terms; (f) All the concerned to act upon an authenticated copy of this judgment and order.