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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2717 OF 2016
1. Smt. Usha d/o Vasantrai Trivedi,
w/o Yogeshumar Oza, aged about
57 years, occupation - Household.
2. Smt. Neelkumari @ Neela d/o
Vasantrai Trivedi w/o Dilip Trivedi,
aged about 60 years, occupation -
Household.
3. Smt. Aruna d/o Vasantrai Trivedi,
w/o Harshadrai, aged about 66
years, occupation - Household.
All through Power of Attorney Shri
Ajay s/o Vasantrai Trivedi r/o Itwari,
Nagpur. ... APPELLANTS
Versus
1. State of Maharashtra
through its Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032.
2. Competent Authority & Additional
Collector, Urban Land Ceiling
Authority, having its office at
Collector's Compound, Civil Lines,
Nagpur.
3. Nagpur Housing and Area
Development Board, through its
Chief Executive Officer, Near M.L.A.
Hostel, Civil Lines, Nagpur. ... RESPONDENTS
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Shri P.V. Vaidya, Advocate for the petitioners.
Ms. A.R. Kulkarni, AGP for respondent Nos. 1 & 2.
Shri P.N. Kothari, Advocate for respondent No. 3.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
JANUARY 05, 2018.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) Heard Shri Vaidya, learned counsel for the petitioners, Ms. Kulkarni, learned AGP for respondent Nos. 1 & 2 and Shri Kothari, learned counsel for respondent No. 3.
2. Though Shri Kothari, learned counsel has attempted to demonstrate that respondent Nos. 1 & 2 have passed orders which are vague and with an intention to benefit the petitioners, we are not inclined to look into that challenge at this stage. Shri Kothari, learned counsel appearing for respondent No. 3 - Nagpur Housing and Area Development Board and Shri Vaidya, learned counsel for the petitioners have submitted that while sanctioning scheme under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as Ceiling Act) on 28.05.1996 as per ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 3 provisions of law, Government received 3726 square meters of land free of cost from the petitioners and that land has been then made over to respondent No. 3. The effort, therefore, is to demonstrate that respondent No. 3 has no locus in present matter. He has submitted that the provisions of The Urban Land (Ceiling and Regulation) Act, 1976, have been repealed on 27.11.2007 and because of that repeal, though possession of balance land of the petitioners was never taken, respondent Nos. 1 & 2 fabricated possession receipt dated 16.10.2007. He contends that even today, the petitioners are in possession.
3. Ms. Kulkarni, learned AGP has produced before this Court original records for our perusal.
4. The order dated 28.05.1996 shows that while sanctioning scheme under Section 20 of the Ceiling Act, the State Government has found area of land becoming available to it free of cost to be 3726 square meters. The petitioners thereafter claimed that they have moved an application under Section 34 of the Ceiling Act which came to be registered in the ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 4 office of the Competent Authority. The Competent Authority has passed revised order on 05.06.2003. As per revised order dated 05.06.2003, the petitioners have been given four more shares of 1500 square meters each as retenable land with the result their total retenable land rose to 9000 square meters from earlier 3000 square meters. The order dated 05.06.2003 passed by Shri S.G. Gautam, Additional Collector and Competent Authority shows that after deducting said portion from balance land with the petitioners, land available for declaring as surplus and, therefore, for scheme remains 21856.91 square meters.
5. Here again, Shri Kothari, learned counsel has invited our attention to the fact that powers under Section 34 of the Ceiling Act are to be exercised by the State Government only and cannot be delegated by it. Again, we need not look into that aspect in present matter.
6. The fact that this balance land i.e. 21856.91 square meters continued in possession of the petitioners till the ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 5 possession receipt dated 16.10.2007, is not in dispute. The possession receipt produced on record is dated 16.10.2007. In it, name of one Ashok Vasantrao Trivedi appears as person who is supposed to hand over the possession. The present petition is filed by other sons and daughters of Vasantrai. In possession receipt, there is no signature of Ashok and it is not known whether he received notice to hand over the possession or not.
7. The learned AGP, upon instructions, at this stage submitted that when possession of 3726 square meters of land was taken towards government share and it was handed over to respondent No. 3, the possession receipt was prepared and original possession receipt may be in that file.
8. We do not find any substance in this contention. The order dated 05.06.2003 passed by Shri Gautam under Section 34 is not disputed either by the State Government or by present respondent No. 2. They have not invited attention of this Court to Section 34 or then authority competent to exercise powers under that section. On 05.06.2003, Shri ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 6 Gautam has mentioned that after deducting 3726 square meters of land, the land left with owners was 30856.91 square meters. He has then deducted 9000 square meters of land from this portion and worked out surplus land to 21856.91 square meters. He has then mentioned that in the light of his observation and Government circular dated 10.05.1999, he orders necessary correction in scheme sanctioned under Section 20(1)(a) of the Ceiling Act. Thus, till 05.06.2003, the possession of balance land was not taken at all. In any case, after 05.06.2003, if possession is to be taken, notice to four holders whose shares are recognized on that day by respondent No. 2 was must. No such document or then any document showing receipt of possession from them is produced on record.
9. We, therefore, find that possession receipt dated 16.10.2007 pressed into service by respondent Nos. 1 & 2 is unacceptable. The said possession receipt is in relation to Survey No. 13(3) & (4) only and there the area of land is shown as .77 Hectares i.e. 77000 square feet or about 7000 square meters. In the order under Section 34, Shri Gautam has ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 7 mentioned total area of these two survey numbers at Bhamti to be little above 23000 square meters.
10. We, therefore, find that respondent Nos. 1 & 2 have not taken possession of land from the petitioners at all and hence the petitioners continued in possession of 21856.91 square meters of land. In this situation, due to repeal of Ceiling Act and non completion of exercise ordered by respondent No. 2 on 05.06.2003, we hold that the acquisition of said land under the Ceiling Act lapses.
11. It is clarified that this does not in any way affect the land area of 3726 square meters which has been allotted by respondent No. 1 to respondent No. 3. We also record that during arguments, in order to avoid any further confusion, we have expressly made query in this respect and the learned counsel for the petitioners has also agreed to this.
12. In this situation, accordingly with declaration that Urban Land Ceiling proceedings in relation to 21856.91 square ::: Uploaded on - 10/01/2018 ::: Downloaded on - 11/01/2018 01:20:38 ::: wp2717.16 8 meters of land Survey No. 74/2 of Babulkheda and 13/3 and 4 of Bhamti have lapsed, we partly allow the present writ petition and dispose it of. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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