Bombay High Court
M/S. Jai Industrial Corporation, ... vs The State Of Maharashtra, Through ... on 14 October, 2015
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4179 OF 2015.
1] M/S. Jai Industrial Corporation,
39, Kamptee Road, Nagpur, through
its partner Smt. Sonali w/o Vikas Garg,
Occ.-Business,
2] R.C. Garg HUF through Karta
Vikas Garg, Aged about 41 years,
Occ.-Business,
3] Smt. Sonali w/o Vikas Garg,ig
Aged about 39 years, Occ.-Business,
All Nos. 2 and 3 residents of 10,
Green Park Society, Civil Lines,
Nagpur 440 001. .... Petitioners
Versus
1] The State of Maharashtra,
through the Department of Urban Development,
Mantralaya, Madam Cama Road,
Mumbai 400 032.
2] The Additional Collector and Competent Authority
(Urban Land Ceiling), having its office at
Civil Lines, Nagpur.
3] The Nagpur Improvement Trust, Nagpur
having its office at Station Road, Sadar,
Nagpur through its Chairman.
4] The Divisional Officer, Nagpur Improvement Trust,
Nagpur, Station Road, Sadar, Nagpur.
5] The Nagpur Municipal Corporation, (Amendment carried out
Palm Road, Civil Lines, Nagpur as per Court's order
through the Municipal Commissioner dated 23-07-2015)
..... Respondents.
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Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's
or directions and Registrar's orders. Orders.
Shri Sunil Manohar, Sr. Advocate with
Shri A.A. Naik, Advocate for Petitioners.
Shri M.V. Samarth, Advocate for resp.nos. 3 and 4.
Shri J.B. Kasat, Advocate for resp.no.5.
Shri S.M. Uke, AGP resp. nos. 1 and 2.
CORAM : B. P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
DATED : 14.10.2015
ORAL JUDGMENT (Per- B. P. Dharmadhikari, J.)
1] After hearing the respective Counsel on 27-08-2015, we
have passed the following order :-
"Heard Shri Sunil Manohar, Senior
Advocate with Shri A.A. Naik, learned
counsel for the petitioners, Shri Rao, learned
AGP for respondent Nos.1 & 2, Shri Samarth,
and Shri Kasat, learned counsel for
respondent No.5.
The learned AGP is seeking time to
obtain instructions in view of the amendment
carried out in the petition.
The learned Senior Advocate for
the petitioners and Shri Samarth, learned
counsel for respondent Nos. 3 & 4 state that
the petitioners have submitted a proposal
for slight change in road alignment so that
the existing plot is not divided into two
separate parts. The copy of proposal
submitted on 27.07.2015 is shown to the
Court by Shri Samarth, learned counsel. A
map accompanying it is handed over by the
learned Senior Advocate. It is taken on
record and marked as Exh.'X'.
The learned Senior Advocate, upon
instructions, states that looking to the
acute/sharp turn on left side for entry on
said road after change in its alignment, a
provision for slight curve so as to smoothen
it, will be considered and finalized in
consultation with Nagpur Improvement Trust.
In view of the statement, we
continue interim orders for a further period of
two weeks. The State Government to file its
reply, if any, in the meanwhile.
The continuation of interim order is
opposed by Shri Samarth, learned counsel,
who states that work of road laying till the
land in dispute is already over and if the
interim order is modified, the road laying can
continue further with changed alignment.
We are not in a position to eclipse
the defence of the State Government in any
way at this stage. Hence, we continue the
interim order till next date."
2] Thereafter, the matter was adjourned from time to time to
find out whether the possession of land in dispute is actually taken
by respondent nos. 1 and 2 after issuance of notice under Section
10(3) of the Urban Land (Ceiling and Regulation) Act, 1976
[for short, 'the said Act'].
3] It is to be noted that the learned Counsel appearing for
respondent nos. 3 and 4 stated that if the possession is already
taken by the State Government the respondent nos. 3 and 4 are
not required to change the alignment of public road. If the
possession is not taken, the road can be allowed to be constructed
from the boundary of land in dispute as suggested and accepted by
the petitioners and recorded by this Court in its order reproduced
supra.
4] Thus, only controversy to be looked into is whether
before 29-11-2007 the possession of land in dispute is taken over by
the State Government after completing the formalities as
contemplated by Section 10(5) of the said Act.
5] Shri Manohar, the learned Senior Counsel with Shri A.A.
Naik, Advocate has pointed out from the record of the State
Government that as per the last order-sheet dated 01-11-2007, the
notification under Section 10(3) was published on that day. He,
however, adds that the order-sheets from 1979 till 04-07-1989 are
meticulously maintained and regularly recorded. He also invites
attention to the order-sheet recorded, thereafter, to urge that there
is possibility of some interpolation. According to him, the alleged
possession receipt nowhere shows that the petitioners or their
representatives have refused to hand over the possession and no
panchanama was drawn. He points out that there is no notice to
the petitioners to remain present on spot for handing over the
possession on any particular date and the possession receipt itself
is undated. He invites attention to the pleadings to show that non
service of notice under Section 10(5) of the said Act has been
specifically pleaded and there is no denial to it.
6] The learned Assistant Government Pleader has, however,
relied upon the very same record and the judgment of the Division
Bench of this Court in case of Francis Joseph Ferreira and others v
Additional Collector and Competent Authority and another, reported
in 2010(7) Mh.L.J. 474, in order to demonstrate that as disputed
questions of fact arise the Court should not interfere and the
petitioners herein should be asked to approach the Civil Court
where the said questions can be adjudicated upon. He has also
taken us through the relevant record.
7] In the judgment in case of Francis Joseph Ferreira and
others (supra) on which the learned Assistant Government Pleader
has placed reliance in paragraph 3 the Division Bench has noted
that on 17-03-2006, a notice was issued under Section 10(5) of the
said Act to hand over the possession of surplus vacant land on
17-04-2006, at 2.30 p.m. The petitioners therein claimed that they
did not receive any such notice and the copy of same was never
pasted on their land. They procured its copy under the Right to
Information Act. They pointed out that in absence of notice neither
the petitioners nor their representatives were present at site on
17-04-2006 at 2.30 p.m. when ex-parte possession was taken.
Paragraph 4 shows that on 17-04-2006 while taking ex-parte
possession a panchanama was also drawn and the panchanama
was executed in presence of the witnesses.
8] It is in this background the assertion of said petitioner
that he did not receive the said notice and the contention of the
respondents that such notice was served upon the petitioners and
an ex-parte possession was in fact taken on 17-04-2006 has been
looked into by the Division Bench. In the background of copy of
notice and the copy of panchanama which was duly executed and
attested by the witnesses, a finding that disputed questions of fact
arose has been recorded.
9] In the present matter, the petitioners have specifically
pleaded that they did not receive any notice to handover the
possession. The office copy of said notice is at page no.177 of
record produced by the learned Assistant Government Pleader for
our perusal. It is claimed that it is dated 05-11-2007.
10] The order-sheets which appear at the beginning of record
run from page no.1 to page no.16. The first order-sheet at page
no.1 is of March 1979 while last order-sheet is dated 04-07-1989.
That order-sheet mentions that the notification under Section 10(1)
of the said Act was published on 15-06-1989.
11] After this order-sheet on very same page i.e page no.16
next order-sheet is dated 07-07-2005. Therein, it is mentioned, that
the action under Section 10(1) was already over and a letter to the
Government Printing Press for publication of notification under
Section 10(3) was put up for signature with remark that exemption
under Section 20(1) was not given to those lands. Page no.17 is a
computerized order-sheet in Marathi and on it date 29-10-2007
has been put and again it is mentioned that notification under
Section 10(1) was published on 15-06-1989. It again mentions that
there was no objection to proceed under Section 10(3) and the letter
accordingly was put up for signature. Thus, if the letter was put up
on 07-07-2005 for signature, exercise vide order-sheet dated
29-10-2007 appears to be unnecessary duplication. Thereafter at
page no.19 there is one more computerized order-sheet. It is
undated and it mentions that the notification under Section 10(3)
has been published in the State Government Gazette on
01-11-2007. The date on which this order-sheet is written is not
apparent and after this, there are no other orders in the file.
12] The notice allegedly served upon the petitioners by the
respondent/State for taking possession is the document at page no.
77 of the record produced by the learned Assistant Government
Pleader (mentioned supra) for our perusal. In this background, the
respondent nowhere specifically states that the said notice was
sent to the petitioners with particular outward numbers and it has
been served on them on any particular date. Because the
respondents say that notice is dated 05-11-2007 it is treated as
notice dated 05-11-2007. The space for date of vesting is left blank.
The date fixed for taking possession and to be communicated to the
petitioners is also blank. The said notice at page no.177 is not a
carbon copy but it is original which bears original signature of the
Additional Collector without any date at two places.
13] This notice is also to be forwarded to the Tahsildar,
Nagpur for information and necessary action. The Tahsildar was
requested to take over the possession from the petitioners and to
report the office of the Additional Collector immediately. There is no
report of Tahsildar accordingly. The respondents are not in a
position to point out the date on which said notice dated
05-11-2007 was served upon the office of the Tahsildar.
14] Thereafter, at page no.179 there is "final remark" and at
page no.181 there is a photocopy of said map which mentions the
land as retained by the petitioners and other details. At page no.
182 there is possession receipt. The possession receipt is a
proforma receipt in which the name of the petitioner is written by
hand as person delivering the possession and the name of the
Tahsildar, Nagpur (supra) is already printed as person taking over
the possession. The description of the land and its area is also
mentioned in handwriting, however, it is not singed by the person
taking over the possession or person handing over the possession.
There is no date upon it. At the bottom there is remark "there is
refusal to handover the possession. Possession taken ex-parte.
Sd/-" The person who has signed this endorsement has not been
identified by the respondents in the reply-affidavit. The officer who
has produced the record in Court is not in a position to identify
that person. Said person also has not placed any date below his
signature.
15] The possession receipt mentions that it is as per the
orders of the Additional Collector dated 16-10-2007. In entire
record, file or order-sheet, there is no reference to any such order of
the Collector dated 16-10-2007. When notification under Section
10(3) was published on 01-11-2007, it is apparent that there could
not have been orders of the Collector on 16-10-2007 authorizing the
Tahsildar to take possession.
16] We, therefore, find that the alleged possession receipt as
also the alleged notice dated 05-11-2007 are not genuine and the
contention that the said notice was served upon the petitioner is
not correct. The contention that the possession has been taken
also is not correct. The stand of the petitioners on affidavit before
us that they have never lost the possession and even today enjoy
the possession of the entire property is fortified. In view of this
finding, it is not necessary for us to consider the provisions of
Section 10(6) of the said Act which contemplate the situation in
which the possession can be taken ex-parte. We find that the
effort of the learned Assistant Government Pleader to urge that
the disputed questions of fact arise is without any merit. The
reliance placed upon the above said judgment is unwarranted. In
this situation, though we are inclined to proceed further in the
matter against the respondents, we grant request made by the
learned Assistant Government Pleader and with caution that such
record or defence should not be put up casually, we close this
aspect.
17] We accordingly, quash and set aside the notice dated
17-07-2015. Same is subject to the arrangement as noted in order
dated 27-08-2015. The petitioners state that respondent nos. 3
and 4 shall be placed in possession of land as pointed out in green
line (Exhibit-X) on record of Writ Petition by evening of 15-10-2015.
18] We have already made observations about sharp/acute
turn in order dated 27-08-2015. We direct the petitioners as also
the respondent nos. 3 and 4 to act as per those observations to
avoid the sharp/acute turn and to reduce the angle thereof.
Accordingly, subject to this, we make rule absolute in terms of
prayer clause (A1) of the Petition. No costs.
JUDGE JUDGE
Deshmukh
