Bombay High Court
Adi Dara Patel And 2 Ors vs S.R. Jondhale And 11 Ors on 22 April, 2016
Bench: S.C. Dharmadhikari
Judgment-WP.1468.2009+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1468 OF 2009
WITH
NOTICE OF MOTION NO. 336 OF 2010
1. Adi Dara Patel }
having his address at Westmore }
Apartment, Pochkhanawala Road, }
Worli, Mumbai 400 025 (through }
his constituted attorney Vikas }
Walawalkar, partner of petitioner}
no. 3) }
}
2. Kavas Dara Patel ig }
having his address at C-22, }
River Nest, 311 North Main Road, }
Lane 'E' Koregaon Park, }
Pune 411 001 (through his }
constituted attorney Vikas }
Walawalkar, partner of }
petitioner no. 3) }
}
3. Samartha Development }
Corporation }
a partnership firm having its }
address at 11A Suyash Near }
Amar Hind Mandal, Gokhale Road }
(North) Dadar, Mumbai - 400 028 }
versus
1. Mr. S. R. Jondhale }
former Additional Collector }
and competent authority, ULC, }
Greater Mumbai, now Personal }
Secretary to the Hon'ble }
Education Minister }
Mr. Radhakrishna Vikhe Patil }
having his office at Room }
No. 130, Main Building, }
Mantralaya, Mumbai 400 021 }
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2. Mr. Mahendra Varbhuvan }
currently the Additional Collector }
and Competent Authority, ULC, }
Greater Mumbai, having his office }
at 5 th floor, Administrative }
Building, Bandra (East), }
Mumbai 400 051 }
}
3. State of Maharashtra }
Mantralaya, Mumbai 400 032, }
Service through Government }
Pleader, High Court Bombay }
}
4. City Survey Officer (Andheri) }
having his office at Sardar }
Vallahbhai Patel Nagar, }
Achyutrao Patwardhan Marg,
ig }
Andheri (West), Mumbai 400 053 }
}
5. The Court Receiver }
nd
Bombay High Court, 2 floor, }
Bank of India Building, }
M. G. Road, Fort, }
Mumbai 400 023 }
}
6(a) Maria Sofia Jehangir Patel }
of Mumbai, Indian Inhabitant, }
residing at Gulestan, }
Cuffe Parade, Mumbai 400 005 }
}
6(b) Pesi Shavak Patel }
of Mumbai Indian Inhabitant, }
residing at Lyndewoode House, }
Bomanji Petit Road, }
Mumbai 400 026 }
Respondent nos. 6(a) and 6(b) }
in their capacity as the }
Executors of the Will of late }
Jehangir Pestonji Patel }
}
7(a) Yezdi Hiri Malegam }
of Mumbai Indian Inhabitant, }
residing at Gulestan, }
P. Pethe Marg, Colaba Cuffe }
Parade, Mumbai - 400 005 }
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7(b) Darius Cawasji Shroff }
of Mumbai Indian Inhabitant, }
residing at "Moonlight" Maharshi }
Karve Road, Mumbai - 400 020 }
}
7(c) Pesi Shavak Patel }
of Mumbai Inhabitant, residing at }
Lyndewode House, Bomanji Petit }
Road, Mumbai - 400 026 }
}
7(d) Cyrus Shavak Patel }
of Mumbai Indian Inhabitant, }
residing at Lyndewode House, }
Bomanji Petit Road, }
Mumbai - 400 026 }
Respondent nos. 7(a) to 7(d) }
in their capacity as the Executors }
of the Will of late Shavak }
Pestonji Patel }
}
8. The Reserve Bank of India }
a Corporation constituted by the }
Reserve Bank of India Act, 1934 }
and having its Central Office at }
Shahid Bhagatsingh Road, }
Mumbai }
}
9. Mumbai Municipal Corporation }
a statutory corporation }
constituted under the Mumbai }
Municipal Corporation Act, 1888 }
having its office at Mahapalika }
Bhavan, Mahapalika Marg, }
Mumbai 400 001 }
}
10. Urmila Value Realty }
Private Ltd. }
a company incorporated under }
the Companies Act, 1956 having }
its office at Lotus Tower, 1 Jai }
Hind Society, N. S. Road No. 12A, }
Juhu Scheme, Mumbai 400 049 }
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11. Omkara Co-operative Housing }
Society (Proposed), }
a society registered under the }
Maharashtra Co-operative }
Societies Act, having its address}
at Tenement No. 19, Aram Nagar }
Part - 2, J. P. Road, Versova, }
Andheri (W), Mumbai 400 061 }
}
12. Babubhai Kanakia Foundation }
having its address at 349 }
th
Business Point, 5 floor, Western }
Express Highway, Andheri }
(East), Mumbai 400 069 } Respondents
APPEAL NO. 411 OF 2010
ig IN
CHAMBER SUMMONS NO. 1898 OF 2009
IN
SUIT NO. 2345 OF 1983
1. State of Maharashtra, }
through the Urban Development }
Department, Mantralaya, Mumbai }
2. The Additional Collector and }
C. A. (ULC), Greater Mumbai, }
having office at Administrative }
Building, bandra (East), }
Mumbai - 400 051 } Appellants
versus
1. Adi Dara Patel, of Bombay, }
Indian Inhabitant, residing at }
Maskati Corner Altamount Road, }
Bombay - 400 026 }
2. Kavas Dara Patel, of Bombay, }
Indian Inhabitant, residing at }
Maskati Corner, Altamount Road, }
Bombay - 400 026 }
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3(a) Mrs. Maria Sofia Jehangir }
Patel of Mumbai, Indian }
Inhabitant, residing at }
Gulestahan, Cuff Parade, }
Mumbai - 400 005 }
3(b) Mr. Pesi Shavak Patel of }
Mumbai, Indian Inhabitant, }
residing at Lyndewoode House, }
Bomanji Petit Road, }
Mumbai - 400 026 }
3(a) and 3(b) in their capacity }
as the Executors of the Will of }
Late Jehangir Pestonji Patel, }
original Defendant No. 1. }
4(a) Yezdi Hirji Malegam
of Bombay, Indian Inhabitant,
}
}
residing at Gulestan, Pethe Marg, }
Colaba, Cuff Parade, }
Bombay - 400 005 }
4(b) Darius Cawasji Shroff, }
of Bombay Indian Inhabitant, }
residing at "Moonlight" Maharshi }
Karve Road, Bombay - 400 020 }
4(c) Pesi Shavak Patel }
of Bombay, Indian Inhabitant, }
residing at Lyndewode House, }
Bomanji Petit Road, }
Bombay - 400 026 }
4(d) Cyrus Shavak Patel }
of Bombay, Indian Inhabitant, }
residing at Lyndewode House, }
Bomanji Petit Road, }
Bombay - 400 026 }
4(a) to 4(d) in their capacity as }
the of the Will of Late Shavak }
Pestonji Patel, Original }
Defendant No. 4. }
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5. Mrs. Naji Ashworth, }
Housewife of Bombay, Indian }
Inhabitant residing at }
Chemindela Montague 1224, }
Chene Bougeries Geneva, }
Switzerland }
6. Noshir Minoo Patel of Indian }
Inhabitant, residing at 643, }
Parsi Colony, Dadar, }
Mumbai - 400 014 }
7. Dhunjishaw Ardeshir }
Vesawewala, Indian Inhabitant, }
residing at "Vasant" Bhulabhai }
Desai Road, Bombay - 400 026 }
8. Mrs. Perin Dhunjishaw
Photographer, Indian Inhabitant,
}
}
residing at "Vasant" Bhulabhai }
Desai Road, Bombay - 400 026 }
9. Dhunjishaw Perojshaw }
Photographer, Indian Inhabitant, }
residing at No. 13, Fern House, }
Ormision Road, }
Bombay - 400 005 }
10. The Reserve Bank of India }
a Corporation constituted by }
the Reserve Bank of India Act, }
1934 and having its Central }
Office at Shahid Bhagatsingh }
Road, Bombay } Respondents
WITH
SHOW CAUSE NOTICE NO. 1762 OF 2011
IN
NOTICE OF MOTION NO. 1898 OF 2009
IN
SUIT NO. 2345 OF 1983
Adi Dara Patel and Anr. } Applicants
versus
Maria Sofia Jehangir Patel }
and Ors. } Respondents
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Mr. P. Chidambaram - Senior Advocate
with Mr. Jatin Zaveri, Mr. Swanand
Ganoo, Mr. Aditya Shiralkar, Mr. S. C.
Mahimtura and Mr. Amit Mehta i/b. M/s.
Mahimturra and Co. for the Petitioners in
WP/1468/2009 and for respondent nos. 1
and 2 in APP/411/2010.
Mr. Praveen Samdani - Senior Advocate
with Ms. Geeta Shastri - Additional
Government Pleader and Mr. Mayank
Bagla for respondent nos. 3 and 4 in
WP/1468/2009 and for appellants in
APP/411/2010.
Mr. F. E. Devitre - Senior Advocate with
Mr. Karl Tamboly, Mr. Sonmish Gala and
Mr. Atul Kshatriya i/b. Markand Gandhi
and Co. for respondent nos. 7(a) to 7(d) in
WP/1468/2009 and for respondent nos.
4(a) to 4(d) in APP/411/2010.
Mr. Y. A. Sakhare - Senior Advocate with
Mr. Yatin Malvankar and Ms. Sowmya
Kakar for respondent no. 9.
Mr. Prateek Seksaria with Ms. Krishna
Raja i/b. M/s. L. J. Law for respondent no.
10 in WP/1468/2009.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
Reserved on :- JANUARY 15, 2016
Pronounced on:- APRIL 22, 2016
JUDGMENT :- (Per S.C.Dharmadhikari, J.)
PREFACE:-
A) This writ petition is one more in the series of matters
where jurisdiction of this court under Articles 226 and 227 of the
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Constitution of India is invoked not by rightful owners but
builders and developers, to reclaim the vacant lands in excess of
ceiling limits, which have already vested in the State. The
surplus land holders and owners of these lands very well know
that their fate is sealed for they are divested of their right, title
and interest in these lands by due process of law. However, they
are propped up by builders and developers with ulterior motives
to file such petitions by relying on the repeal of the Urban Land
(Ceiling and Regulation) Act, 1976 (Principal Act) in the State of
Maharashtra with effect from 29th November, 2007. Though
physical possession of these lands is with the State and not
challenged by the owners and surplus vacant land holders at the
relevant time, now they raise such challenge being financed by
builders and developers. Builders and developers and
particularly those amongst them who have no locus and right in
law raise a challenge on the strength of irrevocable power of
attorneys from the erstwhile owners. They put forward pleas
which their principals have never raised. Such litigants are
encouraged sometimes by inaction of the State officials in
maintaining and preserving proper records and sometimes the
State machinery deliberately assists them by keeping back
crucial and important documents. Whatever may be the cause,
this court's precious time is wasted in not only scrutinising the
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original records, but in considering the prolonged arguments. All
this because even one square feet of land is extremely valuable in
a city like Mumbai and commands a huge price in the market. In
cases after cases, vacant lands and which have not been fenced
and protected are subject matter of such litigations and since the
State is unaware about the extent of the land it owns, there is a
tendency of filing them. This is one more case where builders and
developers are before the court after the surplus land holders and
owners have accepted the correctness and validity of the State's
action. As Judges we hardly have any choice particularly when
such petitions are admitted.
1) This Writ Petition and Appeal involve common
questions of law and facts. They were heard together and are
being disposed of by this common judgment.
2) For the purpose of complete enumeration of facts, we
will refer to Writ Petition No. 1468 of 2009.
3) This petition prays for issuance of a writ of certiorari
or any other writ, order of direction under Article 226 of the
Constitution of India, calling for the records, papers and
proceedings pertaining to :-
(i) The order dated 30th November, 2006 under
section 8(4) of the Urban Land (Ceiling and Regulation)
Act, 1976 (for short "the ULC Act").
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(ii) The final statement dated 19th December, 2006
under section 9 of the ULC Act.
(iii) The notification dated 19th December, 2006
under section 10(1) of the ULC Act.
(iv) The notification dated 5th February, 2007 under
section 10(3) of the ULC Act.
(v) The notice dated 27th February, 2007 under
section 10(5) of the ULC Act.
(vi) The order dated 27th April, 2007 under section
11(7) read with section 14 of the ULC Act.
(vii) The entry dated 27th July, 2007 in the Property
Register Card inserting the name of the Government of
Maharashtra/Respondent No. 3 as holder of CTS No.864A
admeasuring 50,364 square meters forming part of the
said property.
4) All these are styled as impugned orders. Then, a
declaration in terms of prayer clause (c) is sought, by which, it is
prayed that this Court should declare that the interest of
petitioner nos. 1 and 2 are not affected by any of the impugned
orders. This prayer is inserted after terming all the above orders
as impugned orders.
5) Some brief facts from the long list of dates and events
would be necessary to appreciate the rival contentions.
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6) The parties to the writ petition are urging that a large
portion of land, namely, 50,364 square meters forms part of the
impugned orders. It is stated that much prior to the orders
impugned in this writ petition and as far back as 1983, petitioner
nos. 1 and 2, along with certain other beneficiaries have agreed to
transfer the respective interest in the land to petitioner no. 3.
Petitioner no. 3, on account of these arrangements/agreements
has agreed to acquire approximately 72% of the beneficial
interest in the land. Petitioner No. 3 has been incurring expenses
for erecting boundary wall and for security charges, since
October, 1984 and continues to incur till date.
7) Petitioner nos. 1 and 2 are stated to be the surviving
plaintiffs in a suit being Suit No. 2345 of 1983 covering a piece of
land bearing Survey No. 141B, equivalent CTS No. 864 of village
Ambivali, Taluka Andheri, District Mumbai Suburban. This land
is situate at Andheri (West), Greater Mumbai and admeasures
73,200.40 square meters as indicated on a plan, copy of which is
annexed as Annexure 'A' and in the schedule at Annexure 'B'.
8) It is not necessary to trace the history relating to this
suit, save and except stating that one Rustomji Dhunjibhoy Patel
(for short "R. D. Patel") was the owner of the land. By his Will, he
appointed his nephews as executors and made specific bequests
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of his various assets. However, the suit land formed part of his
residuary estate as per clause 11 of the said Will. R. D. Patel died
on 13th February, 1939. We are not concerned with any legal
proceedings as between the executors and others. However, it
would be pertinent to note that one of the executors, namely,
Jehangir Patel was director of Reserve Bank of India (for short
"RBI"). He offered to sell the suit land to RBI at Rs.35/- per
square yard. RBI accepted this offer made by Jehangir Patel on
9th October, 1974. The ULC Act came into force as far as the State
of Maharashtra on 17th February, 1976. On 14 th July, 1976,
Jehangir Patel and the surviving two executors made an
application to the Government of Maharashtra for exempting this
land under section 20(1)(a) of the ULC Act so as to enable them
to convey it to RBI. On 13th August, 1976, Jehangir Patel and
other executors filed return in Form no. 1 under section 6 of the
ULC Act. The competent authority passed orders dated 25 th May,
1977 and 30th May, 1977 under section 8(4), 9 and 10(1) of the
ULC Act and held that 66,432 square meters out of the suit land is
surplus vacant land. On 1st November, 1977, the Government of
Maharashtra rejected the application dated 14th July, 1976 made
by the three executors for exemption of the surplus vacant land
under section 20 of the ULC Act. Jehangir Patel and Minocher
Patel (two of the three executors) filed Miscellaneous Petition No.
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1168 of 1978 challenging this order of 1 st November, 1977 and
the other orders holding that the land was surplus vacant land. It
is claimed that petitioner Nos. 1 and 2 in the present Petition
were not the applicants or the petitioners to any miscellaneous
petition. On 12th November, 1981, a common order was passed in
these two petitions quashing the three orders dated 25 th May,
1977, 30th May, 1977 and 1st November, 1977 impugned therein
and remanding the matter back for fresh consideration. This
order was passed on 12th November, 1981.
ig Thereafter, the
competent authority addressed a letter to Jehangir Patel stating
that all beneficiaries to the assets of R. D. Patel also ought to make
an application under section 20 of the ULC Act. Jehangir Patel as
executor and on behalf of only surviving co-executors made a
fresh application to the State Government for exemption under
section 20 of the ULC Act for executing conveyance of the land in
RBI's favour. To this application, other co-owners, including
petitioner nos. 1 and 2 to the present petition were not joined as
parties.
9) On 9th June, 1982, the co-owners called upon executor
Jehangir Patel not to pursue this application for exemption in
respect of sale of the suit land to RBI, as better offers than that of
the RBI were available in the open market.
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10) On 10th September, 1982, the Government of
Maharashtra granted exemption under section 20 of the ULC Act
to convey 59,407.10 square meters out of suit land in favour of
RBI within a period of six months. On 28 th February, 1983, a
meeting was held in the office of the competent authority to
tentatively calculate the portion of the suit land which was within
ceiling limit and one which was surplus land to be conveyed to
RBI in terms of the exemption order. Thus, out of 59407.10
square meters, which was treated as surplus vacant land, an area
of 9043 square meters was reduced as land being within ceiling
limit and by a corrigendum dated 19th March, 1983, the
exemption order of 10th September, 1982 was modified. The area
exempted was reduced to 50364.10 square meters and the time
for execution of the conveyance of this property to RBI was
extended for further six months till September, 1983. That is
how Jehangir Patel, Merwanji Patel, surviving executors
executed conveyance in favour of RBI in respect of 50364.10
square meters on 15th September, 1983, but the Petitioners claim
that other co-owners, including petitioner nos. 1 and 2 were not
parties to this conveyance. The petitioners objected to this
conveyance on 21st September, 1983 and 25 th October, 1983. In
the meanwhile, petitioner nos. 1 and 2 and some other co-owners
agreed to sell their respective shares in the land aggregating to
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68% in favour of petitioner no. 3. Thereafter, petitioner no. 3
agreed to acquire 4% more share and thus, he agreed to acquire
72% share in the suit land. That is how the suit which we
referred above, namely Suit No. 2345 of 1983 was filed by the
petitioner nos. 1 and 2 along with their late mother, praying,
inter alia for a declaration that the conveyance dated 15th
September, 1983 in favour of RBI was invalid and be declared as
void and duly cancelled. We will refer to this suit and its outcome
in further details.
11) This suit was filed on 21st November, 1983 and later
on was transferred to the Bombay City Civil Court. A decree has
been passed therein on 18th March, 2013.
12) Prior thereto, Notice of Motion No. 1890 of 1983 was
moved in the above suit and this Court passed an order on 4 th
June, 1984 appointing the Court Receiver, High Court Bombay as
a receiver of the suit property.
13) Petitioner nos. 1 and 2 were appointed agents of the
Court Receiver on 14th September, 1984 and a report was
submitted by the Court Receiver reporting that vacant possession
of the suit land admeasuring 73,200 square meters had been
taken by the Court Receiver on 17 th September, 1984 and he has
placed/affixed 10 boards displaying and showing his possession of
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the property. He has appointed a security agency as well. A
letter was addressed on 19th September, 1984 by the Court
Receiver to the Collector of Bombay and Tahsildar, Andheri
inviting their attention to the order passed by this Court and
pointing out that he has taken possession of the land on 17 th
September, 1984. An area of 7325 square meters having been
acquired for Bus Depot, possession thereof was given by the Court
Receiver to the Special Land Acquisition Officer sometime in
1986. On 18th October, 1991 and 26th December, 1991, petitioner
nos. 1 and 2 executed an irrevocable power of attorney in favour
of partner of petitioner no. 3 for a consideration.
14) Then, we find that the petitioners have made
reference to a letter addressed by the Court Receiver to
respondent no. 4 on 17th October, 1996 requesting cancellation of
an entry in the revenue record dated 27 th July, 1989. That entry
recorded the name of one Harendra Singh. Pursuant to that
letter, on 7th November, 1996, the entry dated 27th July, 1989
was deleted.
15) It is stated then that nothing transpired till the year
2006, there were no steps taken under the ULC Act till 10 th
August, 2006 when the first respondent issued a notice, copy of
which is at page 137 of the paper book, to the estate of Dhun Patel
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and 14 others. This notice purports to act on the order of remand
dated 12th November, 1981 passed by this Court in the above
noted two miscellaneous petitions.
16) On the same date, a notice was issued by respondent
no. 1 under section 20(2) of the ULC Act to Jehangir Patel, D. D.
Patel, Estella Vesugar and RBI alleging that the exempted land
had not been transferred to RBI within six months from 10 th
September, 1982 and requiring them to show cause why the
exemption order should not be withdrawn and further steps be
not taken under sections 8(4), 10(1) and 10(3) of the ULC Act to
acquire the said land. The claim of the petitioners is that these
notices were not received by petitioner nos. 1 and 2 and their
mother. They were sent to the address of their erstwhile
advocate.
17) Then, two further notices identical to the one dated
10th August, 2006 were issued by respondent no. 1 fixing a
hearing on 25th September, 2006 in relation to the cancellation of
the exemption order. On the same date, another hearing was
scheduled for determination of surplus vacant land.
18) These notices, according to the petitioners, bear either
the old addresses of petitioner nos. 1 and 2 or address of their
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erstwhile advocate and therefore, petitioner nos. 1 and 2 did not
receive these notices.
19) On 14th September, 2006, respondent no. 1 addressed
a letter to the Tahsildar, Andheri recording that the notices
issued earlier had been returned unserved as the land owners
were not residing at the addresses available in the office record.
The Tahsildar was required to publish the notice at site and
forward the publication report. This, according to the petitioners,
is not in compliance with the requirement of Rule 5(2)(c) of the
ULC Rules, 1976, which contemplated notice to be affixed at the
office of the competent authority and at the house of the noticee.
However, the petitioners refer to a publication of notice by the
Tathsildar at the site as an event occuring on 20 th September,
2006.
20) Then, the petitioners refer to a letter to respondent
no. 1 addressed by respondent no. 7(d) dated 21 st September,
2006 informing him that he had received the notice dated 14 th
September, 2006, but as there was a pending suit and that the
property was in the hands of the Court Receiver since 1984, this
respondent requested respondent no. 1 not to pass any order of
cancellation of exemption.
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21) On 3rd November, 2006, notice was issued by
respondent no. 1, which, according to the petitioners, is identical
to the notice dated 10th August, 2006 seeking to take steps in
pursuance of section 8(4) of the ULC Act and seeking to convene
a hearing on 15th November, 2006. The petitioners submit that
these notices were addressed at a time when the exemption order
was still in force and hence, they are non-est and without
jurisdiction.
22)
Then, there is a notice of 8 th November, 2006 allegedly
delivered in office of the estate of Dara Patel. Petitioners,
therefore, submit that the order withdrawing the exemption
dated 20th November, 2006 on the ground that no steps had been
taken to transfer the land to RBI till that date, is also not in
accordance with law. The petitioners submit that respondent no.
1 did not notice that the time to execute the conveyance in favour
of RBI was extended by a corrigendum dated 19 th March, 1983.
Then, the petitioners assail the order purportedly passed under
section 8(4) of the ULC Act on 30th November, 2006 declaring
that 50,364 square meters is surplus vacant land. It is submitted
that this order was passed without considering the corrigendum
and conveyance dated 15th September, 1983. On 19th December,
2006, respondent no. 6(b) wrote to respondent no. 1 that he had
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received the notice of cancellation of exemption, but there was a
suit pending, the property is in the hands of Court Receiver since
1984, the RBI is a party to this litigation and, therefore, no order
be passed as stated in the notice.
23) Yet, it is submitted, that the first respondent
proceeded and issued a statement styled as final statement under
section 9 of the ULC Act holding that the above land and to the
extent indicated is surplus vacant land.
24)
Then, there was a notification issued under section
10(1) of the ULC Act in respect of 50,364 square meters of land
on 19th December, 2006. This notification wrongfully records
that the final statement under section 9 of the ULC Act was
served on the concerned persons through the competent
authority. The petitioners submit that the notification under
section 10(1) could not have been published until there was proof
of the service of statement under section 9 of the ULC Act. There
is no such evidence of service on holders/persons in possession.
Further, the statement under section 9 of the ULC Act and
notification under section 10(1) were issued on the same date.
Hence, it is clear that the Acts and Rules were violated. On 5 th
February, 2007, a notification under section 10(3) of the ULC Act
was issued by the 1st respondent, under which, it was declared
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that the surplus vacant land of 50,364 square meters vested in
the State Government.
25) Then, on 27th February, 2007 respondent no. 1 issued
a notice under section 10(5) of the ULC Act to the estate of Dara
Patel and Dhun Patel stating that the City Survey Officer,
Ambivali had been authorised to take possession of 50,364
square meters land and that possession be handed over to him on
9th March, 2007. According to the petitioners, this notice also
stated that the City Survey Officer can take one sided possession
of the surplus vacant land if the owner was not present to give
possession of the same.
26) Then, on 12th March, 2007, the inspecting surveyor of
respondent no. 4 addressed a letter to respondent no. 1 informing
him that he visited the site on 9 th March, 2007, but the land
bearing CTS No. 864 is in possession of the Court Receiver, High
Court Bombay appointed in Suit No. 2345 of 1983. Hence, ex-
parte possession of the land is not taken on that date.
27) On 20th March, 2007, respondent no. 1 visited the site
and found that a board of Court Receiver was only on a part
thereof bearing Survey No. 141B, Ambivali, which was on the
other side of nallah and this area did not fall within the surplus
vacant land.
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28) Therefore, the City Surveyor addressed a letter to
respondent no. 1 on 29th March, 2007 informing him that as per
the telephonic message on 28th March, 2007, the inspecting
Surveyor has taken ex-parte possession on 28th March, 2007 and
copy of this letter of possession and panchanama is being
submitted herewith.
29) Then, another letter was addressed on 29 th March,
2007 by respondent no. 1 to the estate of Dara Patel, Ms. Dhun
Dara Patel and 12 others fixing a meeting on 10 th April, 2007 to
determine the compensation payable in terms of section 11 of the
ULC Act. On 27th April, 2007, the 1st respondent passed an order
in exercise of the powers under section 11(7) read with section
14 of the ULC Act awarding compensation of Rs.50,364/- for the
surplus vacant land. That order is referred to the extent that it
records that possession of the land was taken and handed over to
the Collector, Mumbai Suburban District on 9 th March, 2007. On
27th July, 2007, respondent no. 4 made an entry in the Property
Register Card pertaining to the said land that Government was a
holder in respect of a portion admeasuring 50,364 square meters.
30) On 29th November, 2007, the ULC Act was repealed in
the State of Maharashtra in terms of the Urban Land (Ceiling and
Regulation) Act, 1999 (for short "the Repeal Act"). There is
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another letter referred, namely, dated 20th February, 2008,
whereby, the City Survey Officer informed the Principal
Secretary in the Urban Development Department of the State that
this land was vacant and possession thereof was taken on 28 th
March, 2007.
31) On 29th December, 2008, respondent no. 1 addressed a
letter to respondent no. 10 asking it to deposit Rs.16.67 crores for
allotment of 5670 square meters of land out of the surplus vacant
land, but respondent no. 10 wrote that on inquiries, it was learnt
that a part of the land was affected by Coastal Regulation Zone
(CRZ-1).
32) The petitioners state that they did not learn of any of
these events till petitioner no. 3, in routine course, obtained the
property card and the extract thereof revealed the entries and
the name of the Government of Maharashtra as holder of the
alleged surplus vacant land. It is thereafter, in the month of
August, 2009 that the petitioners made inquiries and learnt about
aforesaid events.
33) There was also a wrongful act of causing damage to
the compound wall covering the land which is subject matter of
the suit and since it was in possession of the Court Receiver, he,
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by a letter dated 19th March, 2009, directed the petitioners to call
upon that entity, namely, SEW Infrastructure to pay damages for
repairs. However, even the Court Receiver was not aware of all
the events.
34) It is in these circumstances that the present writ
petition containing the above noted prayers has been filed. If one
has to note the events that took place during the pendency of the
petition, they could be noted as under:-
(a) On 16th November, 2009, in view of the destruction of
eastern side of the compound wall of the suit land, the
Court Receiver applied to this Court vide Report No. 324 of
2009 filed in Suit No. 2345 of 1983 to seek direction
against M/s. SEW Infrastructure Limited to construct the
destroyed compound wall.
(b) On 30th November, 2009, this Court passed order
taking on record the Court Receiver's Report No. 324 of
2009 in Suit No. 2345 of 1983.
(c) On 5th December, 2009, 3rd April, 2010, 8th April, 2010
and 27th April, 2010, the Court Receiver filed his reports in
Suit No. 2345 of 1983 for recording the extent of damages
done on the eastern side of the compound wall and various
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measures caused by the Court Receiver to be taken to
rebuild the destroyed compound wall.
(d) On 7th December, 2009, 14th December, 2009, 23rd
March, 2010, 20th April, 2010 and 27th April, 2010, this
Court passed various orders in Suit No. 2345 of 1983 on
the Court Receiver's reports, whereby, the Court had
directed joint inspection of the suit land by Court Receiver,
the petitioners (as agents) and M/s. SEW Infrastructure
Limited to assess the extent of damages.
(e) On 14th December, 2009 constituted attorney of
petitioner nos. 1 and 2 filed affidavit in response to Court
Receiver's Report No. 324 of 2009.
(f) On 27th October, 2009, respondent no. 2 filed reply to
Writ Petition No. 1468 of 2009.
(g) On 30th October, 2009, petitioners filed rejoinder
affidavit to reply affidavit of respondent no. 2 in the above
writ petition.
(h) On 24th November, 2009, M/s. Urmila Value Realty
Pvt.Ltd. (respondent no. 10) filed reply to the writ petition
and inter alia contended that exempted land was
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transferred to RBI and therefore petitioners have no title
to the suit land and that suit filed by them is fraudulent.
Respondent no. 10 also contended that the order
withdrawing exemption dated 20th November, 2006 has
not been challenged.
(i) On 26th November, 2009, respondent no. 1 (former
competent authority) filed reply to the writ petition and
tendered an apology.
(j) On 26th November, 2009, Chamber Summons No.
1898 of 2009 was taken out in Suit No. 2345 of 1983 by
respondent no. 2 (present competent authority) and
respondent no. 3 (State) seeking leave of the Court to take
further steps in respect of that portion of the subject
property which was declared as surplus vacant land
admeasuring 50,364 square meters in respect of which
Court Receiver is appointed by order dated 4 th July, 1984
passed in Notice of Motion No. 1890 of 1983 in Suit No.
2345 of 1983. Further, respondent nos. 2 and 3 also
sought an order that they be joined as party defendants to
Suit No. 2345 of 1983.
(k) On 6th January, 2010, a Division Bench of this Court
passed order admitting the writ petition and directing the
parties to maintain status quo.
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(l) On 27th April, 2010 order passed by this Court
recording that at the time of the hearing of Chamber
Summons No. 1898 of 2009 which was taken out in Suit
No. 2345 of 1983, respondent nos. 2 and 3 withdrew
prayer (b) of Chamber Summons No. 1898 of 2009,
whereby they had sought to be joined as party defendants
to Suit No. 2345 of 1983.
(m) On 5th May, 2010, this Court dismissed Chamber
Summons No. 1898 of 2009 and directed that notices be
issued to respondent nos. 1, 2 and 3 to show cause why
proceedings under the Contempt of Courts Act, 1971
should not be initiated against each of them for interfering
in the administration of justice by dispossessing or
attempting to dispossess the Court Receiver appointed by
this Court on the suit land without leave of the Court and
even without notice to the Court Receiver.
(n) On 13th August, 2010, a Division Bench of this Court
admitted Appeal No. 411 of 2010 challenging the order
dated 5th May, 2010 and stayed the order dated 5 th May,
2010. The Division Bench also directed that Appeal No.
411 of 2010, Show Cause Notice No. 3115 of 2010 and the
captioned writ petition be clubbed together.
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(o) In September, 2012, Suit No. 2345 of 1983 was
transferred to the Bombay City Civil Court (the same was
numbered as BCCC Suit No. 7480 of 1983).
(p) On 18th March, 2013, Suit No. 2345 of 1983 was
decreed and an order and judgment was made holding
that:-
(i) The agreement and conveyance dated 15 th
September, 1983 executed in favour of RBI are to be
cancelled and set aside.
(ii) The Court Receiver, Bombay High Court is
directed to deliver possession of the subject property
to the petitioners and their co-owners being the
plaintiffs and defendant nos. 1 to 14 in Suit No. 2345
of 1983.
This judgment and decree has not been appealed against
and has become final.
35) It is in the backdrop of the above subsequent events
that it was directed that both, the writ petition and the appeal be
heard together.
36) Mr. P. Chidambaram learned Senior Counsel
appearing for the petitioners in the writ petition would submit
that the present writ petition is filed to challenge the purported
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acquisition of land of the petitioners under the ULC Act, which
stood repealed in the State of Maharashtra with effect from 29 th
November, 2007.
37) Since the ULC Act has been repealed, the writ petition
ought to be disposed of considering the provisions of the Repeal
Act.
38) Section 3 of the Repeal Act provides that if any land is
deemed to have vested in the State Government under sub-
section (3) of section 10 of the ULC Act, possession of which has
not been taken over by the State Government, then, such land
shall be restored to the land holder.
39) The Division Bench of this Court in the case of Voltas
Ltd. and Anr. vs. Additional Collector and Competent Authority,
Thane1 has held that the Repeal Act, as passed by the Parliament,
protected only those lands of which possession had been taken
and it was the clear intention of the parliament not to save
vesting of the land in the State Government in which possession
had not been taken.
40) It is the petitioner's case that the land admeasuring
73,200 square meters, inclusive of vacant surplus land
1 Bom C. R. 746 (para 14)
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admeasuring 50,364 square meters, has been in the possession of
the Court Receiver appointed by this Court in Suit No. 2345 of
1983 since 17th September, 1984 and respondent nos. 1 to 4 have
not taken actual physical possession of the land or any part
thereof. Indeed, it is an admitted case that the Court Receiver has
not been dispossessed from the land in question.
41) It is further submitted that respondent nos. 1 to 4 rely
upon panchanama and receipt of possession to contend that they
had taken possession in accordance with the law laid down in
Prahlad Singh vs. Union of India2, Sitaram Bhandar Society3, P. K.
Kalburqi4 and Tamil Nadu Housing Board5.
42) The aforesaid judgments are in the context of the
Land Acquisition Act, 1894 and the manner of taking symbolic
possession of large open and vacant land. They have no
application to a case under the ULC Act. In the case of ULC Act,
possession can be taken under section 10 of that Act only in one
of the three methods as spelt out in the case of State of U. P. vs.
Hari Ram6.
2 (2011) 5 SCC 386
3 (2009) 10 SCC 501
4 (2005) 12 SCC 489
5 (1996) 8 SCC 259
6 (2013) 4 SCC 280
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43) Without prejudice to the above and assuming without
conceding that the respondent nos. 1 to 4 had taken some kind of
symbolic possession as claimed, it is submitted that even the
taking of so called symbolic possession is illegal because:-
(a) The notice under section 10(5) of the ULC Act for
taking possession was not given to the person in
possession, viz., the Court Receiver, High Court
Bombay.
(b) The so called one sided possession was purported
to be taken before the expiry of 30 days as prescribed
by sub-section (5) of section 10 of the ULC Act (in the
present case 30 days period expired on 29 th March,
2007 and the one sided possession was allegedly taken
on 9th March, 2007 or 28th March, 2007).
(c) The panchanama (Pg.226/WP Part II) recording
the alleged taking of ex-parte possession is wholly
unreliable and is defective inasmuch as:
(i) the panchanama does not record the names
of panchas/independent witnesses;
(ii) the panchanama does not bear the
residential addresses of the panchas/independent
witnesses;
(iii) the panchanama is not signed by the
panchas/independent witnesses; instead records
a remark "one sided possession taken".
(d) The possession receipt (Pg.225/WP Part II, which
relies solely on the panchanama, is equally bad for the
aforesaid reasons.
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(e) The panchanama thus is contrary to the decision
in Prahlad Singh's case (supra), which holds that:-
"19. (iv) If the acquisition is of a large tract of
land, it may not be possible for the
acquiring/designated authority to take
physical possession of each and every parcel of
the land and it will be sufficient that symbolic
possession is taken by preparing appropriate
document in the presence of independent
witnesses and getting their signatures on such
document. (emphasis supplied)"
(f) There is material inconsistency and grave
contradiction in as far as date of taking the alleged one
sided possession
ig is concerned. The following
documents mention the date as 28th March, 2007:
(i) Letter dated 29th March, 2007 (See Pg. 223-
226/WP Part II)
(ii) Panchanama and possession receipt dated
28th March, 2007 (See Pgs. 226 and 225/WP
Part II)
(iii) Tabulated statement dated 20th February,
2008 (See Pg./234/WP Part II)
Whereas, the following documents mention the date as
9th March, 2007:-
(i) Notice under section 11 dated 29th March,
2007 (See Pg. 227-228/WP Part II)
(ii) Order under section 11(7) dated 27th April,
2007 (See Pg. 229/WP Part II)
The aforesaid contradictions assume importance
because the ULC Act has been held to be an
expropriatory legislation and which is required to be
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construed strictly. (See State of Maharashtra vs. B. E.
Billimoria and Ors.7
44) It is further submitted by Mr. Chidambaram that the
subject land is encircled by a compound wall having only one
entry gate and is guarded by the security personnel round the
clock. The possession of such land could be taken only after
actually entering the land and not by any symbolic or paper
possession. The existence of compound wall and presence of
security guards is established from the reports of the Court
Receiver reporting damage to the compound wall caused by SEW
Infrastructure Ltd. to this Court and directions passed by this
Court in the year 2009 for repairs of the damaged wall.
45) Respondent nos. 1 to 4 could not have taken
possession of the area of surplus vacant land measuring 50,364
square meters without identifying and demarcating the same, out
of the larger piece of land measuring 73,200 square meters (less
area of 7525.60 square meters given to Bus Depot) in possession
of the Court Receiver. Thus, the case of taking over possession by
respondent nos. 1 to 4 is not credible and cannot be accepted.
46) In view of the aforesaid peculiar features of the
subject land, the judgments relied on by respondent nos. 1 to 4
have no application.
7 (2003) 7 SCC 336 (para 22)
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47) Respondent no. 1 has vaguely alleged that
maintenance surveyor took possession of the said surplus vacant
land on 28th March, 2007. But, there is no affidavit of
maintenance surveyor who allegedly took possession.
48) It is further submitted by Mr. Chidambaram that
respondent nos. 1 to 4 had knowledge that the subject land is in
possession of the Court Receiver, High Court Bombay, which is
evidenced from the following documents:-
(i) Letter dated 19th September, 1984 from the Court
Receiver to the Collector of Bombay and Tehsildar,
Andheri that the Court Receiver had taken possession of
the subject land.
(ii) Letter dated 17th October, 1996 sent by Court
Receiver to the office of City Surveyor (R-4) for correcting
the entries in the property card.
(iii) Letter dated 21st September, 2006 sent by R-7 to
respondent no. 1 (competent authority) stating that the
subject land is in the hands of the Court Receiver since
1984.
(iv) Letter dated 19th December, 2006 sent by respondent
no. 6 to respondent no. 1 (competent authority) stating
that the subject land is in the hands of the Court receiver
since 1984.
(v) Letter dated 12th March, 2007 sent by City Surveyor
(R-4) informing respondent no. 1 (competent authority)
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that the subject land was in possession of Court Receiver
and possession could not be taken.
(vi) Presence of notice boards at site showing that the
subject land was in possession of the Court Receiver, High
Court Bombay.
49) It is further submitted that the status of Court
Receiver has been spelt out in the case of Everest Coal Company
Pvt. Ltd. vs. State of Bihar and Anr.8 as under:-
"4. ..... When a Court puts a receiver in possession of
property, the property comes under Court custody, the
receiver being merely an officer or agent of the Court.
Any obstruction or interference with the Court's
possession sounds in contempt of that Court. Any legal
action in respect of that property is in a sense such an
interference and invites the contempt penalty of likely
invalidation of the suit or other proceedings. ....."
50) Two years after the repeal of the ULC Act, R-2 and R-3
on 26th November, 2009 filed in Suit No. 2345 of 1983 Chamber
Summons No. 1898 of 2009 containing two prayers, namely:-
"(i) To implead R-2 and R-3 as defendants to the suit; and
(ii) To grant leave to R-2 and R-3 to take further steps in
respect of the land in respect of which Court Receiver is
appointed."
51) R-2 and R-3 themselves withdrew the prayer for
impleadment. Having withdrawn the prayer for impleadment,
the prayer for leave is not maintainable and is totally
misconceived. In any event, by order dated 5th May, 2010, the
8 (1978) 1 SCC 12
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learned Single Judge has rejected the prayer seeking leave. (See
page 281 of appeal paper book-II).
52) It is further submitted by Mr. Chidambaram that 25
years after the judgment of the High Court dated 12 th November,
1981, respondent no. 1 (competent authority) on 10 th August,
2006 allegedly issued notices for reopening of the proceedings
under the ULC Act for the reason that the surplus vacant land
was not transferred to RBI as per the exemption order.
Respondent no. 1 (competent authority) thereafter purported to
pass orders under section 20(2) and section 8(4) to issue final
statement under section 9 and notifications under section 10(1)
and section 10(3) of the ULC Act.
53) Respondent No. 1's contention that at the time of
passing the orders, he was not aware of the corrigendum dated
19th March, 1983 is untenable, besides lacking in credibility,
because:-
(a) The corrigendum dated 19th March, 1983 was issued
in response to respondent no. 1's letter dated 28 th
January, 1983 and, hence, it must be presumed that
respondent no. 1 was aware of the corrigendum.
(b) There is no requirement under the ULC Act that the
transferor or transferee should inform respondent no. 1 of
the compliance of the terms of the exemption order, i.e.
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the execution of the conveyance dated 15 th September,
1983.
(c) In any event, now respondent nos. 1 to 4 admit the
existence of the corrigendum on the record of office of
respondent no. 2.
54) Apart from the gross delay in issuing the notices,
actions taken by respondent no. 1 under the provisions of the ULC
Act commencing from 10th August, 2006 onwards are illegal and
no-est for the following reasons:-
(A) With respect to notices under section 20(2) of the ULC
Act dated 10th August, 2006:-
(i) For the issuance of these notices, the existence
of the jurisdictional fact, i.e. the non-compliance of the
terms of the exemption order dated 10 th September,
1982 viz., the non-execution of conveyance in favour
of RBI, was necessary. The basis on which respondent
no. 1 could have commenced enquiry was not in
existence. The conveyance having been executed on
15th September, 1983, there was no breach of the
exemption order dated 10th September, 1982.
Respondent no. 1 could not have commenced an
inquiry as per notices dated 10th August, 2006 and
14th September, 2006.
(ii) These notices were sent to the erstwhile
advocates of the petitioner nos. 1 and 2 who were
appointed about 25 years ago and they did not receive
these notices.
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(B) With respect to notices issued for hearing and for
passing orders under section 8(4) of the ULC Act dated
10th August, 2006:-
(i) These notices were issued during the
subsistence of the exemption order dated 10 th
September, 1982 read with corrigendum dated 19 th
March, 1983. When exemption order is in force, no
action under Chapter-III of the ULC Act can be taken
because there is no surplus vacant land.
(ii) These notices were sent to old addresses of
petitioner nos. 1 and 2 where they were not residing
in the year 2006 and they did not receive these
notices. There is no evidence on record of service of
these notices on petitioner nos. 1 and 2.
(iii) On record, there is a communication dated 14th
September, 2006 at page 149 of the writ petition
paper book recording the admission by respondent
no. 1 that the notice dated 10th August, 2006 was
returned unserved as the land owners (petitioner nos.
1 and 2 and others) were not staying at the given
addresses. This clearly demonstrates that respondent
nos. 1 to 4 were aware of the non-service.
(iv) The instructions of respondent no. 1 to Tehsildar
to publish the notice under section 8(4) of the ULC
Act at site is not in accordance with Rule 5(2)(c) of
the ULC Rules. The said Rule requires notice to be
affixed at the office of competent authority and at the
houses of the noticees. The original record produced
before the Court does not have any evidence that the
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notices were affixed at the office of the competent
authority; nor is there any evidence that the notices
were affixed at the houses of the noticee.
(v) These notices were also required to be served
upon the person in possession, viz., Court Receiver,
High Court Bombay, by registered post as mandated
by Rule 5(2)(a)(ii) of the ULC Rules and there is no
evidence on record of service by registered post on
the Court Receiver.
55) It is further submitted that inasmuch as the aforesaid
notices and orders were issued on a fundamentally erroneous
factual premise that the land was not transferred to RBI, the said
notices and orders are a nullity in the eyes of law. (See Union of
India vs. Tarachand Gupta9).
56) When the law requires that a particular thing to be
done in a particular manner, then, it must be done in that
manner, other modes of exercise are impliedly barred. Thus,
notices ought to have been served as prescribed by the ULC Act
and the Rules. (See A. K. Roy and Anr. vs. State of Punjab and
Ors.10).
57) In view of the material irregularities in service of
aforesaid notices, the order dated 20th November, 2006 under
9 (1971) 1 SCC 486 (para 21)
10 (1986) 4 SCC 326 (para 10)
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section 20(2) withdrawing exemption and order dated 30 th
November, 2006 determining surplus vacant land are bad in law
and are a nullity.
58) The final statement under section 9 of the ULC Act
dated 19th December, 2006 is also bad in law because it was not
served on the land holder nor the person in possession (Court
Receiver) as required by section 9 of the ULC Act read with Rule
5(2) of the ULC Rules.
59)
Non-service of final statement under section 9 of the
ULC Act vitiates notification under section 10(1) of the ULC Act.
The notification under section 10(1) is also bad for another
reason as it was not published in two newspapers as required by
Rule 6 of the ULC Rules.
60) Where any order is passed in violation of the
principles of natural justice, such an order is a nullity, which can
be challenged whenever and wherever it is sought to be enforced.
See Chiranjilal Goenka vs. Jasjit Singh11, Nawabkhan Abbaskhan
vs. the State of Gujarat12 and R. B. Shreeram Burga Prasad vs.
Settlement Commission13).
11 (1993) 2 SCC 507 (para 18)
12 (1974) 2 SCC 121 (para 14)
13 (1989) 1 SCC 628 (para 7)
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61) It is submitted by Mr. Chidambaram that as a
consequence of the above illegalities in the action under sections
8, 9 and 10 of the ULC Act, the action under section 10(3) of the
ULC Act is illegal, null and void. As a result, there is no deemed
vesting under section 10(3) of the Act in favour of the State in the
present case and the purported acquisition process is a nullity.
62) It is further submitted by Mr. Chidambaram that the
petitioners have averred in para 5(B) at page 21 of the writ
petition that they learnt about the events that transpired on and
after 10th August, 2006 sometime in June, 2009. There is no
pleading on record denying these assertions of the petitioners,
which are deemed to to have been admitted by the respondents.
63) The petitioners, according to Mr. Chidambaram,
cannot be faulted by imputing knowledge of notices and orders
issued after 10th August, 2006. Such knowledge is being imputed
without any pleading. He elaborated the submissions by pointing
out that none of the grounds can be said to be tenable merely
because the petitioners have annexed copies of the notices and
orders as Annexures to the writ petition. Secondly, there cannot
be said to be any indirect knowledge and attributed through
respondent nos. 6 and 7. Merely because these respondents have
agreed allegedly to transfer their interest to petitioner no. 3 does
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not necessarily mean that they would discuss or state anything
about it to the petitioners.
64) The petitioners have averred that the security guards
at the site prevented respondent no. 1 from taking possession, but
these are not security guards reporting to the petitioners. They
are not placed at the site by the petitioners.
65) Then, Mr. Chidambaram submits that mere
publication of the notification under section 10(1) and 10(3) in
the official gazette does not mean that the petitioners are aware
of the same, inasmuch as Rule 6 of the Urban Land Ceiling Rules
requires that the notification under section 10(1) shall be
published in two newspapers. This is in addition to the
publication in the official gazette. Thus, mere publication in the
official gazette is not a sufficient notice.
66) Finally, Mr. Chidambaram would submit that there is
no warrant for questioning the locus of petitioner nos. 1 and 2
simply because petitioner no. 3 is also a party petitioner.
67) The conduct of the petitioners also cannot be
questioned. No motive can be imputed to the petitioners. There is
no trickery on their part. Mr. Chidambaram, therefore, submits
that petitioner nos. 1 and 2 did not take any benefit of the
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exemption order. Any benefit that may have been taken by the
executors of the Will also came to an end when the exemption
order was withdrawn on 20th November, 2006. For all the above
reasons, Mr. Chidambaram would submit that this writ petition
be allowed.
68) Mr. Chidambaram has relied upon the following
additional judgments in support of his contentions:-
(i) Ahinsa Buildtech Private Limited and Anr. vs. The
State of Maharashtra and Ors. Writ petition No. 397 of
2010 order dated 5th October, 2011 (Bombay High Court).
(ii) The Bank of Baroda Employees Arunoday Co.op. Hsg.
Soc. Ltd. vs. State of Maharashtra Writ Petition No.
2119 of 2008 order dated 21st November, 2011
(Bombay High Court).
(iii) M/s. Johnso and Johnson Ltd. and Anr. vs. State of
Maharashtra and Anr. Writ Petition No. 1461 of
2009 order dated 9th November, 2011 (Bombay High
Court).
(iv) The National Wire Heald Works Pvt. Ltd. vs. The State
of Maharashtra and Ors. Writ Petition No. 737 of
2009 order dated 17th November, 2011 (Bombay High
Court).
(v) Kothuru Babu Surendra Kumar (died) and Ors. vs.
Special Officer and Competent Autyhority, ULC,
Vijayawada and Ors. (2000) 4 ALT 694 .
(vi) State of Uttar Pradesh vs. Hari Ram (2013) 4 SCC
(vii) Vinayak Kashinath Shilkar vs. Deputy Collector and
Competent Authority and Ors. (2012) 4 SCC 718 .
(viii) Union of India vs. Swaran Singh and Ors. (1996) 5
SCC 501.
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(ix) Ganesh Rangnath Dhadphale vs. Special Land
Acquisition Officer (I) 1979 Mh. L. J. 786 .
(x) Ghanshyam Ramcharan Amghe and Ors. vs. State of
Maharashtra and Ors. 2006(3) Bom. C. R. 479 .
(xi) Tashi Delek Gaming Solutions Ltd. and Anr. vs. State
of Karnataka and Ors. (2006) 1 SCC 442 .
69) Apart therefrom, Mr. Chidambaram also relied upon
certain documents and to which we shall make reference later on.
70) On the other hand, Mr. Samdani learned Senior
Counsel appearing for respondent nos. 1 to 4 submits that the
petitioners have clearly indulged in an act of trickery with an
attempt to present the State with a fate accompli. The conduct of
the petitioners is such that they are not entitled to any reliefs
under Article 226 of the Constitution of India.
71) Mr. Samdani submits that petitioner nos. 1 and 2 who
claimed interest in the subject land have ceased to have one and
it is only petitioner no. 3 a developer and a builder who is
prosecuting the present proceedings for a commercial gain.
Petitioner no. 3 has no cause of action to maintain the petition or
seek reliefs therein.
72) Mr. Samdani then submits that the facts have not
been placed in the proper perspective, inasmuch as requisite
notices were issued before orders under section 20(2) and section
8(4). The notices were also issued for section 9 and section 10
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proceedings. The notices were also issued c/o the advocates and
solicitors who represented the owners in the proceedings before
the competent authority as seen in the roznama.
73) Mr. Samdani submits that the petitioners in the writ
petition have stated that petitioner nos. 1 and 2 have 2/7 th share
in the estate, however, petitioner no. 3 a developer and builder
who is associated with the land since 1983, claims interest in the
land to the extent of 72%, which obviously includes the
respondents who are supporting the petitioners and some of
whom, in response to the notices, addressed letters to competent
authorities, copies whereof are annexed by the petitioners.
74) Mr. Samdani further submits that the petitioners
cannot dispute service of notices inasmuch as all the notices and
the orders passed in the proceedings pursuant to the notices are
annexed by them in the writ petition. In the writ petition, there is
no statement that they got the copies of the notices and orders
either under the Right to Information Act, 2005 or from any
other source including the supporting respondents. The
petitioners have been acting in tandem with the supporting
respondents as is apparent from the facts that the petitioners
have annexed the copies of the letters addressed by the
supporting respondents to the competent authority.
J.V.Salunke,PA
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75) It is further submitted by Mr. Samdani that the
notifications under section 10(1) and 10(3) have also been
published in the Maharashtra Government Gazette. It is thus
submitted that the petitioners, at the relevant time, had due
knowledge of the notices and the proceedings under section 20(2)
and thereafter under sections 8, 9, 10 of the ULC Act. It is
submitted that the petitioners are deemed to have the knowledge
as the notifications were also published in Government Gazette
which were available to all citizens. (See State of Maharashtra
vs. Mayer Hand George14).
76) Mr. Samdani further submits that the attempts to
raise technical arguments on the alleged deficiencies in notices
under section 8, 9 and 10 of the ULC Act ought not to be
entertained inasmuch as the petitioners never filed any appeals
or raised challenge during the relevant period. Such pleas after
two and a half years of possession and one and a half years of
repeal ought not to be entertained. In the present writ petition
also, there is no challenge to the order dated 20th November, 2006
revoking the exemption order under section 20(2) of the ULC Act
with a result that there is no exemption. The belated challenge in
2009 (after the repeal of the ULC Act) to the proceedings under
sections 8(4), 9 and 10 ought not to be entertained. The events
14 1965 1 SCR 123
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narrated above clearly indicate the designed move of the
petitioners to somehow or the other deprive the State of surplus
vacant land to which it is legally and legitimately entitled to. If
there was challenge before repeal, State would have taken
immediate remedial measure with respect to the alleged
deficiency in notices.
77) Mr. Samdani further submits that the petitioners
attempted to challenge the orders on the grounds of non service,
violation of natural justice, invalidity, on the ground of nullity,
etc. It is submitted that the notices as indicated hereinabove are
served. In any event, the petitioners had clear knowledge at the
relevant time of the said notices. It is submitted that the
petitioners were afforded opportunity of hearing by notices.
However, they failed and neglected to avail the opportunity of
hearing and therefore, cannot make grievance of violation of the
principles of natural justice. An attempt was made to contend
that the notices are not in terms of the rules which the petitioners
contend are mandatory. It is submitted that the aim and object of
notice is to put the person to notice of an action. Alleged
deficiencies in the notice after repeated opportunities and lapse of
time cannot invalidate the orders. The attempt to contend that
the orders passed by the competent authority are void and/or
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nullity is unsustainable inasmuch as there is no dispute that the
competent authority has jurisdiction to pass order under section
20(2) of the ULC Act. There cannot be a dispute that once the
exemption order under section 20(2) of the ULC Act is revoked,
the proceedings under sections 8, 9 and 10 can commence. The
competent authority's inherent jurisdiction is not in dispute.
Thus, the contention that the orders are void or nullity, it is
submitted, is untenable. None of the orders are challenged by
filing appeal during the relevant time.
ig There cannot be a
challenge in collateral proceedings.
78) Mr. Samdani further submits that a further attempt
was made to contend that the competent authority, whilst
revoking the exemption under section 20(2), did not notice the
corrigendum and therefore, order of revocation under section
20(2) is bad. Firstly, it is submitted that order under section
20(2) is not under challenge and challenge to the same is
expressly given up. Secondly, the petitioners expressly dissented
from and objected to the exemption order itself. The petitioners
challenged the conveyance which was to be executed under the
exemption order. The petitioners obtained a decree of
cancellation of conveyance. Whether the corrigendum was
noticed or not noticed by the competent authority has no bearing
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or consequence on the revocation order. Inasmuch as the
petitioners at all stages dissented, disputed and asserted non-
compliance of the condition under the exemption order.
79) It is submitted by Mr. Samdani that the petitioners
contended that the competent authority had knowledge of the
suit and the appointment of a receiver and in this regard, reliance
was placed on the documents. (Serial numbers 27, 28, 31, 40 and
45 of the chronology of events of the petitioners). It is submitted
that none of the aforesaid documents can impute knowledge of
the competent authority to the suit or appointment of receiver
with respect to the surplus vacant land. The letter addressed to
the collector is not to the competent authority. The Collector's
office is different from the office of Additional Collector and
Competent Authority. The letter addressed to City Survey Officer
in 1996 cannot be used against the Additional Collector and
Competent Authority to impute knowledge. Similarly, the letters
addressed by the supporting respondents do not enclose the
copies of the proceedings. Copies of the orders do not indicate as
to whether the receiver has been appointed in respect of surplus
vacant land. The competent authority learnt about the
appointment of receiver only on the service of the writ petition
and therefore, made an application in suit for leave to regularise
the action of taking possession.
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80) It is further submitted by Mr. Samdani that a further
attempt was made to contend that since the receiver was in
possession, notice ought to have been given to the receiver and in
the absence of notice to the receiver, the notice and the action
both are bad. As submitted hereinabove, the petitioners have
been duly served with the notices and had clear knowledge of the
proceedings. The petitioners themselves have stated that they
were agents of the Court Receiver. (Serial number 26 of the
chronology of events of the petitioners and pages 15 and 32 of the
writ petition). A service upon the agent is a good service on the
principal.
81) It is further submitted by Mr. Samdani that the
possession of the surplus vacant land was taken on 28 th March,
2007. The factum of possession is duly reflected in the
panchanama and possession receipt and large number of
contemporaneous record. The surplus vacant land is open land
and the possession is that of open land. It is submitted that the
documents like panchanama and possession receipt, even it is ex-
parte, would constitute sufficient proof of possession.
82) It is further submitted that the land vested under
section 10(3) in the State. Thereafter, notices of possession were
issued. It is submitted that the land in question was and is a
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vacant land and on taking possession, record in normal and
ordinary course of business are prepared and maintained like
panchanama, taba pavti and other records. (See Section 114 of
the Evidence Act). It is submitted that in the case of vacant land,
there is also a presumption that possession follows title.
83) It is further submitted by Mr. Samdani that it is the 3 rd
petitioner who has been in control of all these proceedings. It also
appears from the averment in paragraph X at page 43 of the writ
petition (the correctness whereof the State does not admit) that
the petitioners were clearly aware of the orders for possession
under section 10(5) and attempts being made for taking
possession in the month of March, 2007.
84) It is further submitted by Mr. Samdani that the
petitioners contend that the possession could not have been taken
in view of the appointment of Court Receiver and that no notice
was given to the Court Receiver. This contention, it is submitted,
has no merit, inasmuch as the provisions of the said Act (section
42) are given an overriding effect and the State has applied for ex
post facto leave, which is subject matter of appeal.
85) It is further submitted that an attempt was made to
contend that the competent authority in the affidavit in reply has
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stated that the possession of the Court Receiver has not been
disturbed. By relying in affidavit at page 498 of the writ petition
and page 11 of the appeal paper book. The reading of the affidavit
of the competent authority by the petitioner is out of context. The
entire affidavit is required to be read as a whole. The competent
authority clearly asserts that possession of surplus vacant land is
taken. The portion in the affidavit which refers to be the
possession of the Court Receiver not being disturbed is the legal
opinion of the competent authority on the consequence of taking
possession. His legal opinion does not detract from the fact that
possession of the surplus vacant land was in fact taken to
regularize possession, chamber summons was taken out for ex
post facto leave which is now in appeal.
86) It is further submitted by Mr. Samdani that there was
no challenge to the exemption order under section 20(1). The
intention of the petitioners was clear not to comply with the
condition of exemption order whilst not challenging the order of
exemption. This conduct further reflects that the petitioners
sought protection from sections 9, 10 and 11 of the said Act by
reason of exemption order under section 20(1) whilst continuing
the challenge to the deed of conveyance which was later on set
aside.
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87) It is further submitted by Mr. Samdani that there is a
tacit admission by the petitioners about the knowledge of all the
notices and proceedings for revocation under section 20 of the
ULC Act and possession.
88) It is further submitted that the proceedings for
revocation of the order under section 20(2) of the ULC Act
commenced in August, 2006 and after the process was completed,
the possession was taken on 28th March, 2007. Thereafter,
compensation was determined in April, 2007 and the ULC Act
was repealed on 29th November, 2007. The above writ petition is
filed on 7th August, 2009, nearly after 2 and half years of
possession and notifications under section 10(1) and 10(3) and
vesting of the property in the State. There is thus clear delay in
filing the writ petition and the writ petition is therefore liable to
be rejected. (See Swaika Properties vs. State of Rajasthan15)
89) It is submitted that the conduct of the petitioners is
not clean and un-blemishable. The petitioners are attempting to
approbate and reprobate a clear designed move in an attempt to
present the State with fate accompli with respect to a large
surplus vacant land in excess of 50,000 square meters and
deprive the public purpose.
15 (2008) 4 SCC 695
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90) The 3rd petitioner claims to be involved in the lands
since 1983. The writ petition is declared by the partner of 3 rd
petitioner on his personal knowledge. The 3 rd petitioner holds
power of attorneys of several of the owners.
91) It is further submitted by Mr. Samdani that the 3rd
petitioner claims 72% interest in the land whilst petitioner nos. 1
and 2 only have 2/7th interest in the land. Obviously, the
supporting respondents are also with 3rd petitioner and have been
arrayed as respondents. Petitioner nos. 1 and 2 have divested
themselves of their interest and received full consideration from
petitioner no. 3 as is evident from the powers of attorney. The
writ petition is thus prosecuted by petitioner no. 3, so was the suit
inasmuch as the same petitioner nos. 1 and 2 were plaintiffs in
the said suit as was declared by the partner of petitioner no. 3, for
the gain and benefit of a developer and a builder who had
attempted to protract and gain from a motivated litigation.
92) Similarly, the supporting respondent nos. 7(a) to 7(d)
also are represented through a developer.
93) The petitioners, on the one hand sought to take shelter
under order under section 20(1) from acquisition and on the
other hand disowned, disobeyed and expressed clear intention,
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including accomplishment thereof, of not complying with the
condition of order under section 20(1). On one hand petitioners
contend that no further action could be taken by the State in view
of the order of exemption under section 20(1) and that there is no
breach of the exemption order, however, on the other hand, the
petitioners impugn the conveyance in favour of RBI as void. The
petitioners got the said conveyance also set aside from City Civil
Court by judgment dated 18th March, 2013. The petitioners
expressly gave up the challenge to the order of revocation of
exemption order. The above conduct clearly reflects the trickery
on the part of the petitioners.
94) It is further submitted by Mr. Samdani that the
contention of the writ petitioners that in view of the appointment
of the Court Receiver, possession of the surplus vacant land could
not be taken, is untenable in law on the ground that; (i) the State,
by chamber summons before the learned Single Judge applied for
leave which has been erroneously declined. The learned Single
Judge fell in error on facts and in law. As soon as the State learnt
of the appointment of a receiver, on filing of a writ petition, the
State with all the humility applied to the Court which had
appointed a receiver for grant of leave in view of the overriding
effect given to the provisions of the ULC Act; (ii) the appointment
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of Court Receiver does not vest in the receiver the rights or title
or interest of the parties to the suit in respect of the property; (iii)
an action in respect of the property of which receiver is
appointed, does not make the action bad but only makes it
voidable and the same can be regularised by seeking
retrospective leave of the court which appointed the receiver.
Leave can be granted ex post facto. The appellants' relief was for
regularising the action.
95)
Lastly it is submitted by Mr. Samdani that the writ
petition be dismissed and the appeal filed by the State be allowed
and the chamber summons be made absolute so also the show
cause notice on the contempt may be discharged.
96) Mr. Samdani's arguments, therefore, can be
summarised broadly as focusing firstly on the conduct of the
petitioners. Secondly, it is stated that original order passed on
10th September, 1982 and referable to section 20 of the principal
Act has not been challenged by anybody and even in this writ
petition. Thirdly, the order revoking the exemption referable to
section 20(2) of the principal Act is not challenged in any
proceedings. Fourthly, there is no relief sought of restoration of
possession of the land in any form. The only declaration that is
claimed is that the notice under section 10(5) is bad in law.
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Fifthly, there is no question of considering a corrigendum in
proceedings under section 20(2) of the ULC Act/Principal Act, as
that is of no consequence and having no relevance to the
withdrawal of exemption. Sixthly, it is incorrect to assume that
the proceedings under section 8(4) were initiated and pursued
even during the pendency of the exemption order. That is
factually incorrect because the final order under section 8(4) of
the principal Act was passed only after the exemption was
withdrawn, namely, on 30th November, 2006. That is permissible
in law.
97) Mr. Samdani submits that petitioner nos. 1 and 2
cannot maintain the writ petition for, they have already divested
themselves of their alleged right and interest in the property in
favour of petitioner no. 3. It is petitioner no. 3 in the position of
suing as power of attorney holder of petitioner nos. 1 and 2 and
partner of petitioner no. 3 who is claiming the reliefs and has
affirmed the petition. He could not have attributed knowledge
unto himself about the state of affairs in relation to the land
which is declared as surplus vacant land under the ULC Act. He is
not holder in that sense. Mr. Samdani, therefore, relies upon the
agreement dated 26th December, 1991 and prior agreement dated
2nd April, 1983 on the point of locus of petitioner nos. 1 and 2. As
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far as respondent nos. 6 and 7 are concerned, they are supporting
the petitioners and they together constitute 72% of the share
derived from petitioner nos. 1 and 2, but all such shares are now
claimed by petitioner no. 3. Lastly, Mr. Samdani submits that it is
undisputed that physical possession of the land, which is declared
as surplus has been taken by the State and the only dispute is
whether possession taken as claimed is not in accordance with
law. Mr. Samdani was also critical of the pleadings in both, the
appeal and the chamber summons for, he would say that if the
possession was not taken as claimed, then, there was no occasion
to plead that these respondents are in contempt for allegedly
interfering with the possession of the Court Receiver.
Mr.Samdani also brought to our notice that the conveyance in
favour of RBI (page 263 of the appeal paper book) is challenged in
the plaint and that is subject matter of the judgment of the trial
court. It is in these circumstances and when the transaction of
RBI is not mentioned or referred in the writ petition that all the
more we must proceed to dismiss it. Mr. Samdani would submit
that all statements in the writ petition with regard to the
possession of the State are guarded and not specific or emphatic
at all. Apart from relying on number of documents, Mr. Samdani
submits that section 114(e) and (f) of the Evidence Act, 1872
would also come into play.
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98) Mr. Samdani has sought to buttress his submissions
by pointing out that section 42 of the principal Act is a overriding
provision. It would override everything, including an order of a
court contrary to the provisions of the Act. Therefore, an
appointment of Court Receiver does not vest the property in him
would enable the State to resist this petition. Further, there is no
contempt nor is there any interference or attempt to interfere
with the possession of the Court Receiver when the State
proceeds against the surplus vacant land in terms of the principal
Act. All parties to the litigation had notice of all the events. The
Court Receiver need not be served once he comes in only to
allegedly protect the subject matter of the litigation. Therefore,
the petitioners cannot now make any capital of want of notice to
the receiver, defect or irregularity in the proceedings culminating
in the possession of the land and its vesting in the State.
99) Mr. Samdani has relied upon the following judgments:-
(i) P. B. Samant and Ors. vs. The State of Maharashtra
and Ors. Writ Petition No. 4 of 2006 order dated 17th
August, 2006 (Bombay High Court).
(ii) State of Maharashtra vs. Mayer Hans George AIR
1965 SC 722.
(iii) Mumbai International Airport Private Limited vs.
Golden Chariot Airport and Anr. (2010) 10 SCC 422 .
(iv) Prahlad Singh and Ors. vs. Union of India and Ors.
(2011) 5 SCC 386 .
J.V.Salunke,PA
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(v) Sita Ram Bhandar Society, New Delhi vs. Lieutenant
Governor, Government of NCT, Delhi and Ors. (2009) 10
SCC 501.
(vi) P. K. Kalburqi vs. State of Karnataka and Ors. (2005)
12 SCC 489.
(vii) Tamil Nadu Housing Board vs. A. Viswam (dead) by
Lrs. (1996) 8 SCC 259 .
(viii) State of Assam vs. Bhaskar Jyoti Sarma and Ors.
(2015) 5 SCC 321 .
(ix) Shiv Ram Singh vs. State of U. P. and Ors. Civil Misc.
Writ Petition No. 37964 of 2009 order dated 27th
July, 2015 (High Court of Allahabad).
(x) Swaika Properties (P) Ltd. and Anr. vs. State of
Rajasthan and Ors. (2008) 4 SCC 695 .
(xi) The State of Bombay vs. Morarji Cooverji (1958)
Vol. LXI B. C. R. 318 .
(xii) M. P. Mittal vs. State of Haryana and Ors. (1984) 4
SCC 371.
(xiii) State of Maharashtra and Ors. vs. Prabhu (1994) 2
SCC 481.
(xiv) Shantaram Hirachand Danez vs. Narayan Bapusa
Fulpagar AIR 1999 Bombay 16 .
(xv) Anthony C. Leo vs. Nandlal Bal Krishnan and Ors.
(1996) 11 SCC 376 .
(xvi) Smt. Bhadrabati Devi w/o. Dinabandhu Tiwari vs.
Jibanmal Babu and Ors. AIR 1941 Calcutta 163 .
(xvii) Balvant N. Vishwamitra and Ors. vs. Yadav
Sadashiv Mule (2004) 8 SCC 706 .
(xviii) Shiv Ram Singh (D) Thr. Lrs. vs. State of U. P. and
Ors. Supreme Court order in Petition (s) for Special
Leave to Appeal © No. 29550 of 2015 dated 26th
October, 2015.
100) Mr. P. Chidambaram has given a brief rejoinder. In
rejoinder, he asserts that the question at the root of the case is
whether possession is taken of the surplus land as required by
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law. Mr. Chidambaram would submit that as far as the locus
standi of the petitioners is concerned, there are no pleadings in
that regard. Such an argument is canvassed by Mr. Samdani
without any pleadings. Alternatively and without prejudice,
petitioner no. 3 has no locus standi is the pleading. (page 289
para 3). Therefore, the State is aware that as far as petitioner
nos. 1 and 2 are concerned, they have only agreed to transfer
their respective shares to petitioner no. 3. There was only an
agreement to sell. There is no conveyance. Hence, the petition is
maintainable. Mr. Chidambaram was critical of Mr. Samdani's
remarks on the conduct of the petitioners. Mr. Samdani could not
have, according to Mr. Chidambaram, accused the petitioners of a
trickery. Mr. Chidambaram submits that petitioner nos. 1 and 2
did not apply for exemption and therefore they did not derive any
benefit of the exemption order dated 10th September, 1982.
They have, throughout, protested about the RBI transaction and
in that regard he takes us to the list of dates serial number 16.
The agreement with RBI, therefore, does not bind these
petitioners and in any event the exemption order is withdrawn.
101) On the aspect of delay, Mr. Chidambaram submits that
there is no delay in filing the petition, because the petitioners
have, throughout, claimed that they were unaware of the
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proceedings under the principal Act. No original documents have
been attached or annexed. Annexing true copies does not mean
that the petitioners are served with the originals. It is incorrect
to assume that the petitioners derived information or knowledge
of the proceedings under the Principal Act from respondent nos. 6
and 7 and in that regard, Mr. Chidambaram relies upon the
contents at page 48 of the writ petition and reiterates his reliance
on Rule 6 of the Rules and submissions in the opening. Mr.
Chidambaram submits that the property is custodia legis. Mr.
Chidambaram submits that the writ petition be allowed.
102) As far as the appeal is concerned, Mr. Chidambaram
would submit that the State moved a chamber summons for its
joinder as a party defendant in the suit. That prrayer was
rejected as not pressed. Therefore, the chamber summons for the
other reliefs, namely, leave of the court to regularise the act of
taking possession of the land, which is custodia legis, does not
survive. Those reliefs cannot be granted once the chamber
summons as a whole is dismissed as not pressed. Hence, no
appeal lies against the order and in that regard, Mr.Chidambaram
relies upon clause 15 of the Letters Patent. Mr. Chidambaram
states that once the State is not party to the lis, namely, the suit,
then, it is a stranger. No appeal lies at the instance of a stranger
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and therefore, the order of the learned Single Judge is correct.
The appeal deserves to be dismissed also because post facto leave
cannot be sought to regularise the act after repeal of the ULC Act.
In that regard, Mr. Chidambaram relies upon section 4 of the
Repeal Act. Mr. Chidambaram submits that the argument that
respondent nos. 1 to 4 had no knowledge of the appointment of
the Court Receiver is a false statement. In that behalf, the list of
dates serial number 28 is relied upon to urge that they had full
knowledge about the same. Then he relies upon page 117 of the
petition paper book to urge that the State and its officials could
not have deleted the name of the Court Receiver from the revenue
records unless they had such knowledge. Therefore, conflicting
and contradictory stand is taken and if physical possession of the
Court Receiver is not disturbed, then, how the possession of the
surplus vacant land has been taken is not clarified. If that was
not taken by disturbing the possession of the Court Receiver,
then, there was no need to file a chamber summons. Hence,
Mr.Chidambaram would submit that the appeal should be
dismissed. Mr. Devitra learned Senior Counsel appearing for non-
contesting respondents adopts the arguments of Mr.
Chidambaram.
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103) With the assistance of Mr. Chidambaram and
Mr.Samdani, we have perused the record of both, the writ petition
and the appeal. We have perused the statutory provisions and
equally the decisions brought to our notice. We have also perused
the compilations comprising of documents and case laws.
104) After perusal of the above, we are of the view that the
findings and conclusions in the writ petition would govern the
appeal as well. Meaning thereby, the fate of the appeal would
depend upon that of the writ petition.
105) The basic facts and which we must immediately note
are that the petitioners claim to be owners of the land through
their grandfather Ardeshir Patel. Ardeshir Patel is brother of
R.D.Patel the owner of the land admeasuring 73,200.40 square
meters, out of which, portion of 7525.60 square meters was
reserved for Bus Depot. That has already been acquired. Another
portion admeasuring 6267 square meters is reserved for road
and the remaining land is the subject matter, according to them,
of these proceedings. There are two survey numbers, namely
Survey No.141B and City Survey No. 864 of village Ambivali,
Andheri, Mumbai.
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106) On the own showing of the petitioners, R. D. Patel left a
Will and appointed his nephews as executors of his Will. R. D.
Patel died on 13th February, 1939 and the probate of his Will was
granted on 10th August, 1939.
107) The petitioners also do not dispute that Jehangir
Patel, one of the Directors of RBI and one of the executors under
the Will offered to sell the said land to RBI at Rs.34/- per square
yard. RBI accepted the offer made by Jehangir Patel. Since the
ULC Act came into force in the State of Maharashtra on 17 th
February, 1976 an application for exemption was made by
Jehangir Patel and other two surviving executors to the
Government of Maharashtra for exempting the said land so as to
enable them to execute conveyance in favour of RBI. We have
perused that application, copy of which is at page 225 of the
compilation of documents placed by the petitioners themselves on
record. That is an application dated 14 th July, 1976. In that
application, it is stated that Minocher, Jehangir and Merwanji,
the surviving executors of the last Will dated 22nd May, 1935 of
R.D. Patel, made application invoking section 20(1)(a) of the
ULC/Principal Act and with the description of the land. In para 3
of this application, it is claimed that this is the only remaining un-
administered estate of R. D. Patel, which, having regard to the
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provisions of Will, goes to several persons, who are claiming
through his three sisters and two brothers. We are not referring
to this only for repetition but for a specific reason, namely, in
para 4 of this application, there is a reference to the prior letter of
6th September, 1974 addressed to the Chief Executive Officer of
RBI offering to sell to the RBI the entire land including the said
property, a joint survey by the authorities and it is stated that in
accordance with the usual practice of RBI, this letter of offer was
scrutinized by its various departments, considered by several
committees and that offer was accepted on 9 th October, 1974 by
the RBI. This application then records as to how there are
reservations on the land and for several public purposes. Upon
this application, which culminates in a request for grant of
exemption, the Government passed an order rejecting it.
However, in the meanwhile and prior to such rejection, Jehangir
Patel and others filed a return under section 6 of the ULC Act and
the competent authority passed orders under section 8(4), 9 and
10 of the ULC Act holding that 66,432 square meters out of the
larger land was surplus vacant land. The petitioners themselves
refer to the rejection being challenged by a Miscellaneous Petition
No. 1168 of 1978 and the common order passed thereon on 12 th
November, 1981.
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108) The competent authority's letter dated 27th May, 1982
and a fresh application filed under section 20 dated 4 th June,
1982 are the further facts referred and what we have noted from
the dates and events and the petition averments is that the
petitioners have described respondent nos. 6(a) and (b) as
executors of the Will of Jehangir Patel, who himself was executor
under the Will of R. D. Patel and respondent nos. 7(a) to (d) as
executors of the Will of Shavak Pestonji Patel. They have also, in
the writ petition, stated that these parties have been impleaded
as party respondents because they represent estate of Jehangir
Patel and Shavak Patel. The petitioners have themselves set out
the position regarding previous orders passed under the ULC Act
up to March, 1983, culminating in an order under section 20
dated 10th September, 1982, copy of which is annexed as
Annexure 'F' to the writ petition. They have also set out the
events post this order and relied upon the communication from
the ULC authorities requiring all the beneficiaries, including
petitioner nos. 1 and 2 to attend on 28 th February, 1983 the office
of the competent authority to identify the portion of the land
which each of the beneficiaries intend to retain as his/her land
within the ceiling limits. The petitioners state that this was done
and an order dated 28th February, 1983 was passed, whereby, out
of the area of 59407.10 square meters determined as surplus
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vacant land for the purpose of exemption order dated 10 th
September, 1980, an area of 9043 square meters was reduced as
being within the ceiling limits and that is how an order was
passed on 28th February, 1983 and a corrigendum was issued
modifying the area in the exemption order dated 10th September,
1982. This corrigendum is dated 19 th March, 1983 Annexure 'H'.
They themselves refer to conveyance deed dated 15th September,
1983.
109)
In this backdrop, we must appreciate the contentions
of Mr. Chidambaram and which project complete innocence at
times and denying any trickery on the part of the petitioners.
110) The argument is that petitioner nos. 1 and 2 did not
apply for exemption. It is not possible to accept this contention
and for more than one reason. Petitioner nos. 1 and 2 are Adi
Dara Patel and Kavas Dara Patel. From what they have described
themselves in the writ petition itself, it is apparent that R. D.
Patel was the owner of the land. He left his Will. The family tree
at page 111 of the paper book indicates that R. D. Patel had four
brothers and three sisters. One of his brother was Ardeshir, who
died on 15th October, 1940. He left a Will duly probated. Ardeshir
had a son called Dara. Petitioner nos. 1 and 2 are the sons of
Dara. The petitioners themselves point out as to how R. D. Patel's
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another son Pestonji had five sons, one of whom was Jehangir and
another was Shavak. He had also two sons, namely Merwanji and
Minocher so also Sorabji and a daughter Nagi.
111) Mr. Chidambaram's arguments overlook the scheme of
the Indian Succession Act, 1925 and its specific provisions
relating to the role and power of executors. That Act consolidates
the law applicable to intestate and testamentary succession. Part
IX of the Act deals with probate, letters of administration and
administration of estate of deceased. Chapter I thereunder deals
with the grant of probate and letters of administration. Section
211 appearing in Part VIII defines the character and property of
executor or administrator as such. We need not refer to all
provisions in further details, simply because it is undisputed that
the owner left a Will. There were executors appointed under this
Will and it was duly probated. Section 222 of the Succession Act
is clear inasmuch as a probate of the Will could be granted only to
a executor. The predecessor-in-title is Dara Patel son of Ardeshir.
Ardeshir was one of the brothers. Since it is stated that
Ardeshir's Will was probated, it is the executors thereof who
would be entitled to apply for and obtain a probate of that Will. It
is they who would be empowered by law to administer the estate,
exercise all powers and perform the functions and duties and
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provided Ardeshir's Will granted any part of the estate to Dara
and benefits thereof can be derived by the petitioners still we do
not see how the executors under the Will of R. D. Patel are
denuded of their power and authority in law and under his Will. If
they exercise these powers as are vested in them and deal with
the subject lands, then, it is doubtful whether the petitioners can
complain about their exercise in these proceedings or under the
ULC Act before the competent authority. Thus, petitioners nos. 1
and 2 have a limited title in the property and that also is now
divested in favour of petitioner no. 3. Thus, the locus of these
petitioners is rightly questioned by the State. We are of the
opinion that once the executors under the Will of the owner take
certain steps and measures in relation to this immovable
property, then, the petitioners are bound by the same. In any
event, the petitioners 1 and 2 are bound by their own acts and
deeds so also the documents executed by them in favour of
petitioner no. 3.
112) We do not see how, therefore, the petitioners can
proclaim that neither did they apply for exemption nor did they
derive any benefit of the exemption order. In that regard, they
claim that on 9th June, 1982 and on 8th September, 1982, they
called upon the executors not to pursue the application for
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exemption. It is pertinent to note that they were aware of the
order of exemption dated 10th September, 1982. They have
addressed a letter through their advocates to the Chief Officer of
RBI, in which, they relied upon the prior correspondence with
RBI, the ULC Act coming into force, the probate petition and the
order passed therein. It is stated that even a writ petition was
filed in this court and the order therein has been referred.
Pertinently, therefore, they seek to disown the agreement with
RBI. However, we do not find any steps being taken against RBI
when it took no cognizance of this letter. The petitioners
themselves, in the list of dates and events, have pointed out as to
how on 15th September, 1983 the conveyance was executed in
favour of RBI. The petitioners are aware of the corrigendum. The
petitioners also commenced objecting to the conveyance deed on
21st September, 1983/25th October, 1983. It is only when they
agreed to sell their right and title so also interest in the property
to petitioner no. 3 that it was decided to file a suit in this court
praying inter alia for a declaration that the conveyance in favour
of RBI was invalid and void and should be cancelled. This is far
from suggesting that no benefit was taken or intended to be taken
from the order of exemption. We are not concerned with the
transaction with RBI, but all that we emphasise is, once the ULC
Act came into force and that was to the knowledge of all
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concerned, then, at least the petitioners would not have allowed
the dealings in relation to the property. However, they allowed
the dealings and transaction knowing fully well that a substantial
portion of land is going to be declared as surplus vacant land and
subject to the ULC/Principal Act. Unless and until the exemption
is sought, all consequences under that Act would follow was
known to the petitioners. To now say that they never intended to
take benefit of the order of exemption and which was specific
inasmuch as to complete the transaction in favour of the RBI, is
not acceptable. The whole deal with petitioner no. 3 by petitioner
nos. 1 and 2 and those supporting them is on the foundation that
it is only a builder and developer, who has the tenacity and
financial capability to taken on the State. He will take a
calculated risk and can afford to take it. If the petitioner no. 3
succeeds in his endeavour to retrieve the lands, naturally some
benefit will flow from it else the land is as it is to be conveyed to
RBI was known to the co-owners. If the petitioner no. 3 manages
to succeed, then, they can call off the deal with RBI, was the
strategy devised. Thus, the co-owners are not innocent and were
part of the plea and strategy to reclaim the surplus vacant land.
113) Mr. Samdani's arguments must be seen in the
backdrop of the above. Further, there is merit in the contention
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of Mr. Samdani that it is not just the act of petitioner nos. 1 and 2,
but petitioner no. 3 as well, which are termed, by the State, as
vitiated by trickery. The third petitioner was aware of all the
consequences that would follow and what now the petitioners and
particularly third petitioner is claiming is that it has 72% interest
in the land. Petitioner nos. 1 and 2 have divested themselves of
their interest and received full consideration from petitioner no. 3
as is evident from the power of attorney. Thus, there are two
developers both deriving benefits under petitioner nos. 1 and 2
and respondent nos. 7(a) to (d). It is these developers who could
not have spoken or complained authoritatively about the
proceedings under the ULC Act and formal impleadment of
petitioner nos. 1 and 2 and the heirs of Shavak, respondent
nos.7(a) to (d) being of no consequence is termed as an act of
trickery. It is in such circumstances that we must appreciate the
other contentions of Mr. Chidambaram.
114) We are of the clear view that this petition is really
prosecuted by builders and developers. If petitioner nos. 1 and 2
were opposing the exemption, they would have corresponded
with the authorities and challenged the same forthwith. We find
that the petitioners are aware of the competent authority's orders
under section 8(4), 9 and 10 of the ULC Act. Petitioner nos. 1 and
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2 do not deny that if statement under section 9 is served on the
person concerned, then, the competent authority shall cause a
notification to be published for the information of the general
public in the official gazette of the concerned State and in such
manner as may be prescribed. The petitioners are aware that a
notification was published in the official gazette under section
10(1) and this fact is specifically asserted in para 7 at page 291
of the affidavit in reply filed by the state on 27 th October, 2009 in
this writ petition. Exhibits 2 and 3 to this affidavit are copies of
the final statement under section 9 and notification under section
10(1) of the ULC Act. Thus, the sequence disclosed in this para is
that the final statement under section 9 was prepared and issued
to the declarants and also served on the declarants, whose names
are set out in para 5 of the affidavit in reply, on 30 th May, 1977.
The notification under section 10(1) was issued and the same was
published in the Government gazette on 7 th July, 1977.
Notification under section 10(3) of the ULC Act was issued on 8 th
September, 1978 and the same was also published in Government
gazette on 28th September, 1978 in respect of surplus vacant land
admeasuring 66,432 square meters of Survey No. 141B, village
Ambivali, Taluka Andheri.
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115) In the list of dates and events, we have not seen any
assertion nor in the affidavit in rejoinder filed by the petitioners
on 30th October, 2009 to the affidavit in reply of the second
respondent, they have, in any manner, denied that they were
unaware of the notification under section 10(1). Thus, what we
have before us in para 7 of the affidavit in reply an un-
controverted factual position.
116) It may be that the petitioners only rely on order dated
12th November, 1981 in Miscellaneous Petition No. 1168 of 1978
and Miscellaneous Petition No. 1250 of 1978, but it is not their
case that they were unaware of the consequences in law.
117) Thus, when petitioner nos. 1 and 2 allegedly did not
claim any benefit of the exemption order, then, they chose to
challenge all these prior steps. Meaning thereby, the petitioners,
though not admitting the charge of trickery or their conduct
being blameworthy, do not deny that all consequences in law
could have been avoided by seeking an exemption order. They
are seeking to avoid these consequences by referring to the
exemption order. They rely upon the same to urge that order
under section 8(4) could not have been passed in view of the
conveyance in favour of the RBI.
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118) However, we do not wish to take this issue any
further, as extensive arguments have been canvased with regard
to the merits of the controversy as well. Though we find some
substance in the arguments of the State on the conduct of the
petitioners, inasmuch as whenever convenient to them, the
petitioners rely on the deal with the RBI. In that process and
during such reliance, they put in the forefront even the
corrigendum and urge that the competent authority brushed
aside the same. ig However, the petitioners do not possibly
remember during the course of such reliance that they have
challenged this very conveyance and by way of a suit. Therefore,
it is apparent that petitioners cling to whatever they can lay their
hands on to avoid the consequences under the law.
119) Having said all this, once the writ petition is admitted
and to be disposed of finally by a reasoned order, we cannot only
rely on the petitioners' conduct or the delay in filing this writ
petition. In the event the petitioners are entitled to any relief,
these would be relevant factors.
120) Now, turning to the merits, the petitioners urge that
the Principal Act is repealed in the State of Maharashtra with
effect from 29th November, 2007. Since that Act is repealed, we
must consider the provisions of the Repeal Act. In that regard,
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reliance is placed upon section 3 of the Repeal Act, which reads as
under:-
"3 Saving. - (1) The repeal of the principal Act shall
not affect -
(a) the vesting of any vacant land under sub-
section (3) of Section 10, possession of which has been
taken over by the State Government or any person
duly authorised by the State Government in this
behalf or by the competent authority;
(b) the validity of any order granting exemption
under sub-section (1) of Section 20 or any action
taken thereunder, notwithstanding any judgment of
any court to the contrary;
(c) any payment made to the State Government
as a condition for granting exemption under sub-
section (1) of Section 20.
(2) Where -
(a) any land is deemed to have vested in the
State Government under sub-section (3) of Section 10
of the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority; and
(b) any amount has been paid by the State
Government with respect to such land
then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government."
121) A perusal of section 3 of the Repeal Act, which is titled
as "savings", would indicate that the repeal of the Principal Act
shall not affect the vesting of any vacant land under section
10(3) of the Principal Act provided possession thereof has been
taken over by the State Government or any person duly
authorised by the State Government in this behalf or by the
competent authority.
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122) We would go to the decisions relied upon by the
petitioners a little later.
123) Factually, the case of the petitioners is that the land
admeasuring 73,200 square meters inclusive of vacant surplus
land admeasuring 50364.10 square meters has been in the
possession of the Court Receiver appointed by this court in Suit
No. 2345 of 1983 since 17 th September, 1984 and respondent
nos. 1 to 4 have not taken actual physical possession of the land
or any part thereof.
124) The pleading in that behalf in the writ petition is that
the petitioners being beneficial owners of an undivided 1/7 th
share in the said property had filed Suit No. 2345 of 1983 and
applied for interim relief by way of Notice of Motion No. 1890 of
1983 in this suit, which was disposed of vide order dated 4th July,
1984, whereby amongst other reliefs, the Court Receiver, High
Court Bombay was appointed as receiver of the said property.
The petitioners, after such a pleading in para 2(B) then rely upon
para 4(B) regarding the manner in which respondent no. 5 the
Court Receiver has taken charge of the property and appointed
the petitioners as his agents. The petitioners rely upon the
manner in which they are safeguarding the property. They rely
upon the Court Receiver's report dated 19 th September, 1984 as
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also letter dated 19th September, 1984 addressed by the Court
Receiver to the Collector, Mumbai Suburban District and the
Tahsildar, Andheri so also the Court Receiver's report dated 11 th
July, 1988 Annexures 'D-1 to 'D-3'. What we find from perusal of
Annexure 'D' is that, that is a summary of the proceedings in the
civil suit. The petitioners do not dispute that even after
appointment of the Court Receiver, certain portions of the land
were taken over for the purpose of BEST undertaking and on 17 th
September, 1986, possession of 7325 square meters was given
the Special Land Acquisition Officer.
125) Then, they refer to the proceedings initiated by one
Hari Nathu Sindhi and M. P. Shah in 1988 or thereabout and at
page 115, the petitioners, in their summary, while asserting that
a visit by them on 6th July, 1988 revealed that the whole of the
property was in possession of the Court Receiver. At the same
time, handing over to the Special Land Acquisition officer as
above is noted by the petitioners themselves. Then, an attempt
by Hari Nathu Sindhi for converting the small portion of the
property to non-agricultural use is referred and the proceedings
in relation thereto. Then comes the report Annexure 'D-1' at page
117 and that is a report of the Court Receiver, which states that
the land was pointed out to him by a managing clerk of the
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advocates for the plaintiffs in that suit and by one Noshir Minoo
Patel and Mr.S. N. Nanabhai and representative of the RBI. The
Court Receiver states that he has affixed tin possession board on
the land indicating the suit and the appointment therein. He
states that the land is marshy and at present it is vacant,
inasmuch as there is no encroachment thereon. There is a board
of RBI. No other board has been found at site. Then, at page 119,
in a letter addressed to the Collector of Bombay, it is stated by the
Court Receiver that he has taken possession in pursuance of the
court's order and the Collector must take a note of the same.
126) Then, there is an inspection report of 11 th July, 1988.
He, once again, states that on visiting and inspection, he found
the painted tin board of the Court Receiver indicating his
possession and that there is no structure except that of the
security guards.
127) Annexure 'E' is a copy of the board displayed at site
and then there are certain photographs. In relation to this
pleading in the petition, respondent nos. 1 to 3, in their affidavit
in reply, after refering to all the dates and events, states as
under:-
"13. By letter dated 14.9.2006 the office of the
Competent Authority fixed hearing on 26.9.2006 and
also issued show cause notice u/sec. 20(2) of ULC Act
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on 10.8.2006 calling upon the addressees to attend
the office of the Competent Authority on 17.8.2006. It
was further directed by the Competent Authority by
letter dated 14.9.2006 to the Tehsildar Andheri the
said notice was to be published on the suit land and
after publication the Tehsildar was to submit the
report.
14. By letter dated 4.10.2006 the Tehsildar
Andheri informed the office of the Competent
Authority that the notice dated 14.9.2006 has been
published on site and also made a panchanama dated
20.9.2006 in respect of the publication of said notice.
I say that further reminder dated 3.11.2006 was
served upon the declarant with a direction to attend
the hearing on 15.11.2006. Hereto annexed and
marked as Exhibit 7 is the copy of acknowledgment
of the said notice. One Mr. Cyrus S. Patel on
21.9.2006 informed the office of the Competent
Authority that the Court Receiver has been appointed
and the said property is in the hand of Court Receiver
since 1984, but the Applicant failed to produce the
documentary evidence in support of the claim and also
failed to give reasons for non compliance of the
condition with the exemption order. I say that the
said Mr. C. S. Patel further stated that dispute has
been settled and they are taking steps to discharge the
Receiver under section 6(1) of the ULC Act and is not
party in the proceedings under section 6 of the ULC
Act. Therefore, the office of the Competent Authority
by order dated 20.11.2006 withdrew the exemption
order dated 10.9.1982 and directed further
proceedings u/sec. 10 of ULC Act in respect of the
surplus vacant land.
15. The office of the Competent Authority issued
revised order u/sec. 8(4) of the ULC Act on
30.11.2006. As per the revised order dated
30.11.2006 issued under section 8(4) of the ULC Act
an area of 50,354.00 sq. mtr. Was declared as Surplus
Vacant Land from the total area of 73,200.4 sq. mtr.
Bearing S. N. 141B of Village Ambivali. Copy of the
said order dated 30.11.2006 is annexed at Exhibit Q
at page no. 158 of the petition. Thereafter, the final
statement u/sec. 9 was prepared and issued on
19.12.2006 and the same was served on the declrant.
Copy of the final statement dated 19.12.2006 issued
u/sec. 9 of the ULC Act is annexed at Exhibit S at page
no. 96 of the petition."
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128) After the above assertions, it is stated in the affidavit
in reply that a notification under section 10(1) of the ULC Act
was published in the Government gazette on 4 th January, 2007.
A copy of the notification is annexed as Annexure 'T-1' at page
174 of the petition. Thereafter, the notification under section
10(3) of the Principal Act was issued on 5th February, 2007 and
was published in the Government gazette on 15th February, 2007.
Thereafter, a reference is made to an order passed on 17 th August,
2006 in PIL Petition No. 4 of 2006, whereunder this court had
directed the competent authority to proceed expeditiously in
furtherance of all the statements filed under section 6(1) of the
ULC Act and to pass an order under section 8(4) as early as
possible and not later than 31st December, 2007. That is how a
notice was issued on 27th February, 2007 fixing 9th March, 2007
as date of taking possession of the surplus vacant land, but on 9 th
March, 2007 the possession could not be taken and the
maintenance surveyor Mr. H. N. Patil from the office of City
Survey Office, Andheri did not take possession of the land on that
date but on 28th March, 2007. That is how the reliance is placed
on possession receipt and panchanama at page 217 and 219 of
the paper book. Thus, the property vests in the State and this
vesting is not affected by the repeal of the Principal Act is the
submission.
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129) It is stated that the proceedings have reached a stage
where an order under section 11(7) of the Principal Act read with
section 14 thereof was passed on 27 th April, 2007 and on 31 st
July, 2007 the City Survey Office intimated the office of the
Additional Collector and Competent Authority that the name of
the Government is recorded as holder in respect of the surplus
vacant land admeasuring 50,364 square meters bearing Survey
No. 141B, CTS No. 864 of village Ambivali. The City Survey Office
forwarded a copy of the property card to the office of the
competent authority. The further steps of allotment of the land
have also been set out and it is urged that after compliance with
the legal provisions, the steps have been taken and there is no
violation of the same.
130) We have noticed that the petitioners challenge the
proceedings leading to taking of possession by the State.
However, it is really perplexing that the petitioners have taken
several alternative pleas. The argument is that the possession
itself was not taken and once it is not taken, then on the repeal of
the Principal Act, all proceedings come to an end or lapse. This
plea is based on the fact that the property is in possession of the
Court Receiver and no notice was served on him prior to taking
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possession nor any leave was sought or taken from the court
before the possession was taken.
131) The competent authority, in the affidavit in reply, has
clarified the factual position that one Mr. Cyrus Patel informed
the office of the competent authority that the Court Receiver has
been appointed and the property is in his hands. The petitioners
claim that the physical possession of the property was with the
Court Receiver has not been accepted and in that regard what the
record indicates is that the order of appointment of the Court
Receiver was not produced by the declarant or any of the
addressees to whom notices had been issued in the proceedings
initiated by the competent authority. No documents have been
produced to show that the Court Receiver was in possession of the
land declared to be surplus vacant land. Thus, it is denied that
the competent authority was aware that the property was
custodia legis as alleged or at all and that the Government was
not party to the suit and hence, there was no occasion for it to
know about the appointment of the Court Receiver and that is the
consistent stand. Even while denying the allegations of contempt
of court, it is stated by Additional Collector Shivajirao Jondhale in
his affidavit filed on 26th November, 2009 that he has passed
orders bonafide and in good faith. He has personally found that
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the board of the Court Receiver was not on the part of the land
which was declared as surplus vacant land, but was on the corner
of the BEST bus station on the land on the one side of the Nallah,
which is not part of the surplus vacant land. The board also did
not mention the survey number and the area of which the
receiver was in possession. There is also an affidavit which has
been filed by the Additional Collector and Competent Authority
under the ULC Act in this petition on 25th September, 2013. In
that affidavit as well, it is stated that a chamber summons was
moved being Chamber Summons No. 1898 of 2009 in Suit
No.2345 of 1983, but while disposing of the same, this court
issued a notice as to why contempt proceedings should not be
initiated against the competent authority and that order has been
challenged.
132) However, all this overlooks the fact that there was a
report, which was submitted to the Additional Collector and
Competent Authority by the City Survey Office. That report or
communication refers to the letter dated 27th February, 2007 of
the competent authority. This communication/report only
indicates that the date of 9th March, 2007 was decided and
determined for taking possession, but when the City Survey
Officer, Andheri visited the site, he found that there is a claim
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that the property is in possession of the Court Receiver.
Therefore, he sought a clarification from the superiors as to
whether in the backdrop of such a claim he should proceed and
take possession or otherwise. Though there is a reference made
to the possession of the Court Receiver, at no stage the competent
authority has accepted or admitted the claim that it is unable to
take possession of the property since it is custodia legis. If that
was the position and as urged now, it would not have given a go
ahead to the City Survey Officer to proceed and take possession of
the surplus vacant land. The assertion of the petitioners that the
Court Receiver fixed ten (10) boards at site is not proved by the
contents of the documents relied on by them. It is a fanciful and
belated claim. Thus, the surplus vacant land and which was
determined as such already is its confirmed status. That position
had never undergone any change. On the own showing of the
petitioners, the property acquired such character on 25th May,
1977 and 30th May, 1977. It may be that an application for
exemption under section 20 of the Principal Act dated 14 th July,
1976 filed by the three executors was rejected on 1st November,
1977 and a miscellaneous petition was filed in this court by two of
the three executors, which resulted in quashing and setting aside
of these orders, but what one finds from page 127 of the paper
book and which is a copy of the order passed on 10 th September,
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1982 that Jehangir Patel and brothers of Bombay hold vacant
land in excess of the ceiling limit and they have applied for
exemption under section 20 of the Principal Act for permission to
transfer the excess land admeasuring 59,407.10 square meters
by way of sale to RBI for construction of staff quarters. That is
how the State satisfies itself that it is in public interest to so
exempt the land. The Government then proceeded to exempt the
said vacant land under the provisions of Chapter III of the Act
and permitted transfer of the said exempted land admeasuring
59407.10 square meters on the conditions set out in the same.
The petitioners themselves refer to a meeting held in the office of
the competent authority, the tentatively calculated portion of the
suit land, which was within ceiling limits and the land that was
surplus vacant land. They also admit and rely upon corrigendum
dated 19th September, 1983. Thus, the land was already
determined as surplus vacant land. The petitioners seek to take
advantage of a notice under section 20(2) dated 10th August,
2006 withdrawing the exemption order dated 10th September,
1982 and requiring them to show cause as to why further steps
under section 8(4), 10(1) and 10(3) of the Principal/ULC Act
should not be taken. Thus, land being surplus vacant land
covered by the Principal Act is an undisputed position. The
Principal Act was applicable from 17th February, 1976 in the
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State of Maharashtra. It is on that date that the land acquired the
status and nomenclature as surplus vacant land. Once the
holders seek exemption under section 20(2) of the ULC Act, then,
it is apparent that they desired that certain proceedings and
consequential in nature may be held in abeyance and they be
allowed to utilise the surplus vacant land for the stated purpose.
Therefore, if the land is surplus vacant land even before the suit
was filed in this court, then, it is futile to urge that the physical
possession of the land was with the Court Receiver or that the
land is custodia lagis. We have not been shown any statutory
provision by which the proceedings and consequent upon the
steps taken under section 10(1) and 10(3) of the Principal Act or
any prior provisions can be held to be bad in law.
133) We must appreciate the nature of the relief that is
sought in the suit. That is a suit filed so as to question a
conveyance in favour of RBI and stated to be executed on 15 th
September, 1983. The suit was filed on 21 st November, 1983 and
the Court Receiver was appointed on 4th June, 1984. It is in these
circumstances that we are of the opinion that there was no
embargo or prohibition in continuing with the steps which are
required to be taken, particularly on the exemption order coming
to an end.
J.V.Salunke,PA
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134) The Petitioners also question the withdrawal of the
exemption on the ground that the same could not have been
withdrawn for the reason that the conveyance in favour of the
RBI was not executed within the period specified therein. In that,
the petitioners rely upon the corrigendum and submit that
unmindful of the same, the competent authority passed the order
purporting to withdraw the exemption. The argument is that in
seeking to cancel the exemption order, the competent authority
failed to notice that time was extended in terms of the
corrigendum to execute the conveyance and the conveyance was
indeed executed. Mr. Chidambaram's arguments are that the
stand of the competent authority that at the time of issuing
notices on 10th August, 2006 and thereafter while withdrawing
the exemption order, it was not aware of the corrigendum is
untenable. He would submit that the corrigendum was issued in
response to the respondent no. 1's letter dated 28 th January,
1983 and hence, it must be presumed that respondent no. 1 was
aware of the corrigendum. Secondly, there is no requirement
under the ULC Act that transferor or transferee should inform
the competent authority about the compliance with the terms of
the exemption order. In any event, now respondent nos. 1 to 4
admit the existence of the corrigendum on its record.
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135) Mr. Samdani has submitted that the conveyance was
challenged in the suit and it is not open for the petitioners to rely
on the execution of the conveyance to show fulfillment of the
terms of the exemption order, but at the same time challenge it.
It is submitted and with some force that there is no challenge to
the order dated 20th November, 2006 withdrawing the exemption.
We are also surprised as to how the petitioners can take up
convenient and somewhat inconsistent pleas of this nature
throughout. If the conveyance itself was not agreed to by the
petitioners and they vehemently objected to its execution, then,
all the more we do not see how we can accept the contentions of
Mr. Chidambaram. In fact the petitioners claiming to be co-
owners, did not join in the application seeking exemption, much
less the exemption applications dated 27 th May, 1982 and 4th
June, 1982. They had no intent of conveying the land at least
insofar and to the extent of their share in favour of the RBI. Their
letter dated 9th June, 1982 would bear this out. They also called
upon Jehangir Patel not to pursue the exemption application
made in relation to the proposed sale to RBI. They rely upon the
minutes of the meeting dated 28 th February, 1983 held in the
office of the competent authority. Further, if the petitioners
objected to the execution of the conveyance repeatedly in
September and October, 1983 and eventually filed a suit on 21 st
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November, 1983, then, we are unable to agree with
Mr.Chidambaram that the petitioners can rely upon the
corrigendum to assail the withdrawal of the exemption.
136) In that regard, we have carefully seen the order
passed on 20th November, 2006. The exemption order to the
extent relevant reads as under:-
".....
In this case land adm. 59,407.10 sq.Mtrs. Bearing
S.No.141B pt. Of village Ambivali Taluka Andheri was
exempted vide exemption order dt. 10.9.1982 and as
per condition No. 2 of the said exemption order the
exempted land was to be transferred to the RBI within
a period of six months from the date of exemption
order i.e. 10/9/1982. However the land holders failed
to transfer the exempted land to the RBI since
10/9/1982 till the date. The chief Premises Officer of
RBI was requested vide this office letter No.
C/ULC/6(i)/SR-XI/853 dt. 8/3/1983 to inform the
land holder M/s. J. B. Patel to approach Government
in Housing and Special Assistance Department for
extension of time limit for completing the sale with
reasons justifying the request.
And whereas neither RBI nor the land holders
took any step to get the time limit extended for
completion of the sale and whereas the exempted land
is lying vacant since 10/9/1982 till today i.e. during
period of these 24 years no steps are taken by the
land holder to transfer the exempted land to RBI. The
RBI has also not taken any step during these 24 years
period to get the exempted land transfer in their
name. This shows that neither the land holder nor
RBI are interested in implementation of the
exemption order dt. 10.9.1982. And where as their
approach is casual and it appears that the exemption
order dt. 10.9.1982 was obtained to stall acquisition
proceeding of excess vacant land.
And whereas the land holder or RBI are not
interested in the matter and case cannot be kept
pending for permanently. ....."
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137) Thus, the exemption is withdrawn not just on the
failure of the land holder to transfer the exempted land to RBI,
but equally the RBI's inaction of not taking any steps during the
24 years' period to get the exempted land transferred in their
name. This shows that neither the land holder nor RBI were
interested in implementation of the exemption order dated 10 th
September, 1982 and they are relying upon the exemption order
of 10th September, 1982 only to stall the acquisition proceedings
of the excess/surplus vacant land. Now, this reasoning cannot be
said to be based on no material for, from 21 st November, 1983 the
pendency of the suit and the appointment of the Court Receiver
would indicate as to how the parties were not serious, but dis-
interested in complying with the terms and conditions of the
exemption order. The petitioners also overlook, apart from their
conduct, that all the co-owners now supporting them are not
interested in concluding the deal in favour of the RBI. Lastly and
importantly, the RBI, which evinced interest in buying the
property on 10th September, 1974 waited till the execution of the
conveyance on 15th September, 1983. The conveyance deed is
also executed by Jehangir Patel and Merwanji Patel. Jehangir
was on the board of RBI and also had a right, interest in the lands.
His position and with the tacit approval of RBI is used to avoid the
consequences of the land being covered by the Principal Act. Its
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acquisition and vesting was inevitable. The conveyance deed was
objected to by petitioner nos. 1 and 2 and thus, was subject
matter of prolonged litigation. The RBI has not shown any
interest nor taken any steps from the date of execution of
conveyance till the withdrawal of the exemption order dated 20 th
November, 2006 to transfer the land in its name. Hence, the
conclusion that the execution of this conveyance deed is utilised
for stalling the acquisition proceedings cannot be termed as
perverse or vitiated by any error of law apparent on the face of
the record. The non reference to the corrigendum is not fatal. It
is not just the period within which the conveyance was to be
executed, but the inaction of the parties in not concluding the deal
and taking it to its logical end, which is relied upon. We do not
think, therefore, that mere non reference to the corrigendum
would have such an impact on the withdrawal of the exemption
order that we must quash and set it aside.
138) Pertinently, the other argument of the petitioners is
also relevant for the purpose of our above conclusion. The other
argument and which we have noted already is that the notices
and action taken by respondent no. 1 under the provisions of the
ULC Act commencing from 10th August, 2006 onwards are illegal
and nonest. The argument is that the ULC Authority did nothing
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for 25 years. From the date of the exemption order, namely,
dated 10th September, 1982, for the reasons of the petitioners'
inaction and their vacillating stand noted above, this submission
must be straight away rejected. Then, it is urged that the notices
dated 10th August, 2006 and 14th September, 2006 were sent to
their erstwhile advocate and therefore they did not receive them.
This argument also need not be considered for the reason that the
petitioners themselves, in their petition and written arguments,
have raised several alternate pleas.
ig They are themselves not
sure as to what is the real factual position. The petitioners'
alternate arguments are if the cancellation of the exemption
order is a nullity and the said order is valid, then, no proceedings
under sections 8 and 9 of the Principal Act can be initiated. In
this regard we have already held above that the cancellation of
the exemption or withdrawal thereof is not vitiated. We have
assigned elaborate reasons for the same. We are satisfied from
the record that no proceedings under section 8(4) and section 9
and subsequent thereto were completed until the exemption was
withdrawn. From the dates and events, it is apparent that
consequent upon the withdrawal of the exemption order that the
competent authority took the subsequent steps. The list of dates
and events, as supplied by the petitioners themselves, would
indicate that the notices were issued on 10 th August, 2006 and
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14th September, 2006. These notices were published at the site on
20th September, 2006. Then, there is a letter addressed on 21 st
September, 2006 by respondent no. 7(d). The notice of 3 rd
November, 2006 was delivered in the office of the estate of Dara
Patel. It is only after the cancellation of the exemption order i.e.
on 30th November, 2006 that the competent authority acted upon
the above notices. We will deal with the argument of Mr.
Chidambaram that these notices were not served, separately, as
even with regard thereto, there are alternate pleas and
submissions. For the present, we find that the stand of the
petitioners on this issue is also conflicting and contradictory. If
they urge that the notice dated 3rd November, 2006 and the prior
notices have been served during the pendency of the exemption
and when that exemption order was not withdrawn, then, implicit
in that is an admission that the petitioners had knowledge of
these notices and their contents. They would not have otherwise
urged that the very issuance of these notices is bad in law and
when the exemption order is in force, such a notice cannot be
issued.
139) We have not been shown any principle of law, leave
alone any provision from the concerned statute, which would
enable us to hold that the notices cannot be issued during the
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pendency of the exemption order. Once the notices have not been
acted upon, so long as the exemption was in force, then, this
argument of Mr. Chidambaram cannot be accepted.
140) We have already indicated with sufficient reasons that
it is fallacious to urge that the exemption order being in force,
there is no surplus vacant land. In that regard, a careful perusal
of section 20 of the ULC Act would negate this contention
completely. Section 20 of the ULC Act reads as under:-
"20.
Power to exempt. (1) Notwithstanding
anything contained in any of the foregoing provisions
of this Chapter, -
(a) Where any person holds vacant land in
excess of the ceiling limit and the State Government is
satisfied, either on its own motion or otherwise, that,
having regard to the location of such land, the purpose
for which such land is being or is proposed to be used
and such other relevant factors as the circumstances
of the case may require, it is necessary or expedient in
the public interest so to do, that Government, by order,
exempt, subject to such conditions, if any, as may be
specified in the order, such vacant land from the
provisions of this Chapter;
(b) where any person holds vacant land in
excess of the ceiling limit and the State Government,
either on its own motion or otherwise, is satisfied that
the application of the provisions of this Chapter would
cause undue hardship to such person, that
Government may, by order, exempt, subject to such
conditions, if any, as may be specified in the order,
such vacant land from the provisions of this Chapter:
Provided that no order under this clause shall be
made unless the reasons for doing so are recorded in
writing.
(2) If at any time the State Government is satisfied
that any of the conditions subject to which any
exemption under clause (a) or clause (b) of sub-section
(1) is granted is not complied with by any person, it
shall be competent for the State Government to
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withdraw, by order, such exemption after giving a
reasonable opportunity to such person for making a
representation against the proposed withdrawal and
thereupon the provisions of this Chapter shall apply
accordingly."
141) Sub-section (1) of section 20 clarifies that
notwithstanding anything contained in any of the foregoing
provisions of Chapter-III, it is only in the case of a vacant land
excess of the ceiling limit on the satisfaction of the State
Government and on other conditions stipulated in clauses (a) and
(b) of sub-section (1) being fulfilled that the exemption is granted.
Therefore, vacant land in excess of the ceiling limit is exempted
from the provisions of the Chapter. However, that does not
change the character of that land. It continues to be vacant land
in excess of the ceiling limit and subjected to the Act. In a Full
Bench decision of this court in the case of Maharashtra Chamber
of Housing Industry, Mumbai and Ors. vs. Stateof Maharashtra
and Anr.16 this aspect has been discussed in the following words:-
".....
50. We are unable to agree with them because the
excess vacant land being at one time exempted, but such
exemption being withdrawn later would equate such
excess vacant lands with those in relation to which the
power of exemption was never exercised and the
Chapter was throughout applicable. Their status would
be on par with those excess vacant lands in relation to
which no attempt was made to seek an exemption or
such attempt was made, exemption granted, but later on
withdrawn and withdrawal never questioned by the
affected parties. If in relation to such lands as well the
necessary steps and in pursuance of section 10(1) could
16 2014 (6) Mh. L. J. 829
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have been taken and prior to the repeal had the
possession of such lands been taken over, they would
have vested in the State and that vesting is saved or
survives the repeal of the Principal Act, then, there was
absolutely no necessity of saving the exemption order
and which has already been acted upon or in relation to
which the consequences including those provided by
section 20(2) and ensuing the same have been already
followed.
.....
56. The fallacy in the above arguments can be
demonstrated by perusing section 20 of the Principal
Act. The difference in the language in section 19 and
section 20 is that section 19 says that Chapter - III will
not apply to certain vacant lands whereas what section
20 sets out is the power to exempt the vacant land in
excess of ceiling limit and which power can be exercised
by the State Government in cases covered by clauses (a)
and (b). That the said exemption can be withdrawn
provided the Government records a satisfaction that any
condition subject to which the exemption order is
granted is not complied with by any person. Therefore, a
conditional order of exemption can be withdrawn on
reaching this satisfaction and conclusion. However,
section 20 does not mandate withdrawal, but confers a
discretion in the government to withdraw the exemption
order after giving a reasonable opportunity to such
person of making a representation against the proposed
withdrawal. It is only when the power of withdrawal is
exercised that the provisions of Chapter-III will apply.
The language of section is, therefore, clear inasmuch as
it is only when the exemption order is withdrawn that
the Chapter-III of the Principal Act applies to the excess
vacant land. So long as the exemption order is in force
to protect its validity despite a contrary Court order a
saving provision in the Repeal Act will have to be
inserted. The Legislature was aware that not only the
terms and conditions of the exemption order need to be
enforced, but if that order is acted upon by parties the
validity as a whole must be saved. That needs to be
saved so as to enable the State Government to apply the
provisions of Chapter-III to the excess vacant land
covered by the exemption order and the terms and
conditions after it is noticed that the exemption is either
misused or mis-utilized or not acted upon so as to sub-
serve the larger public interest. A breach or violation of
some of its vital conditions may result in its withdrawal
and cancellation. If one way of applying Chapter-III is by
withdrawing the exemption order, then, the power to
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withdraw the same which is implicit and inherent in the
power to grant exemption is also saved and not affected
by repeal of the Principal Act. That is because the
vacant land held by a person is undisputedly in excess of
ceiling limit. The power to exempt is exercised when a
person holds the vacant land in excess of ceiling limit.
That such power can be exercised even after declaration
under section 10(3) of the Principal Act is further
undisputed.
57. In this backdrop if section 20 is perused that
confers a power to exempt and it opens with a non
obstante clause, namely, notwithstanding anything
contained in any of the foregoing provisions of this
Chapter, namely, Chapter-III. The clause (a) of sub-
section (1) of section 20 refers to a person holding the
vacant land in excess of ceiling limit. If the State
Government is satisfied suo motu or otherwise that
having regard to the location of such land, the purpose
for which such land is used or is proposed to be used and
such other relevant factors as the circumstances of the
case may require and it is necessary or expedient in the
public interest to do so, then, the Government may, by
order, exempt, subject to such conditions as may be
specified in the order, such vacant land from the
provisions of Chapter-III. Thus, what is required for
exemption firstly is that a person holds the vacant land
in excess of ceiling limit, satisfaction of the State
Government suo motu or otherwise that having regard
to the location of such land, purpose for which such land
is being or is proposed to be used and such other
relevant factors as the circumstances of the case may
require, it is necessary or expedient in public interest so
to do. Upon such satisfaction the Government may by
order, exempt the vacant land from the provisions of
Chapter-III by making an order and which could be
conditional. The word "Exemption" means free from an
obligation or liability. In Advanced Law Lexicon by P.
Ramanatha Iyer, 3rd Reprint 2007, the word "exempt"
shows that a person is put beyond the application of law.
It means to give freedom from liability, tax or duty like
any exception. It is a privilege.
58. The argument of Mr. Naphade overlooks the
position that when the power of exemption has to be
exercised notwithstanding anything contained in any of
the foregoing provisions of this Chapter, namely,
Chapter-III, then, even section 10 is included therein.
Therefore, the land may have been notified in terms of
sub-section (3) of section 10, yet the holder of such
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vacant land and which is in excess of ceiling limit can
seek the Government's intervention and invoke the
powers conferred in the State Government vide section
20(1). Similarly, by clause (b) of sub-section (1) of
section 20 where any person holds the vacant land in
excess of ceiling limit and the State Government on its
own motion or otherwise is satisfied that the application
of the provisions of Chapter III would cause undue
hardship to such person, that the Government may by
an order, exempt, subject to such conditions as may be
specified in the order, such vacant land from the
provisions of this Chapter. However, the proviso
clarifies that no orders under this clause, namely, clause
(b) shall be made unless the reasons for the same are
recorded in writing.
59. If the argument of Mr. Naphade is accepted, that
would mean that the powers to exempt cannot be
exercised when the land is already vested in the State in
terms of section 10. That the power under section 20(2)
for withdrawal of exemption cannot be exercised after
repeal of the Principal Act, presupposes that exemption
itself cannot be granted after vesting takes place. Mr.
Naphade and other counsel contend that effect of
withdrawal of exemption is to vest the vacant land in the
State in terms of section 10 and after repeal that vesting
is not possible or that even if the land is vested the
further steps cannot be taken. Thus, the argument is
premised on the basis that no application for exemption
under section 20 can be filed by a person who holds the
vacant land in excess of ceiling limit once it vests in the
State. Precisely such an argument was canvassed before
the Honourable Supreme Court and rejected in the case
of Special Officer and Competent Authority, Urban Land
Ceilings, Hyderabad vs. P. S. Rao reported in AIR 2000
SC 843 (see paragraphs 6 to 10).
60. Therefore, once the power of exemption can be
exercised after the excess vacant land has vested in the
State, then, equally the power to withdraw the
exemption can also be exercised in case of such vacant
land.
.....
63. ..... It is not an absolute right or privilege as is
claimed. It may be a conditional exemption. It may
allow the person to use the land for the stated purpose,
but that is not relieving him or the land from the
condition or obligation imposed by Law and equally any
liability. It is not an advantage or benefit, if at all, which
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could be enjoyed absolutely. It is to fulfil the object or
purpose of the user and to act in public interest or to
avoid undue hardship. The applicability of Chapter III
being expressly admitted, but seeking to avert the
consequences of such applicability in exceptional
circumstances that the request to exempt is considered
and granted. The power in that behalf is to be exercised
sparingly and as an exception. It is not a rule. It is a
corresponding right of the State and to be exercised to
uphold larger Public Interest. Thus, it is not a one sided
right or privilege. It is not relieving the person from the
legal consequences of the power to exempt and more so,
if it is a conditional order. It is to safeguard public
interest that such power is exercised and in a given case
conditionally. If relieving somebody on account of his
hardship or exempting the vacant land for a specific
purpose by holding in abeyance the applicability of
provisions of Chapter-III is the aim, then, that person
cannot claim benefit or advantage in himself much less
in absolute terms. It is a relief granted to relieve him
from undue hardship caused by applicability of the
provisions of Chapter-III. If that power under clause (b)
of sub-section (1) of section 20 is exercised subject to
such conditions, as can be imposed by the State bearing
in mind the object and purpose of the principal Act and if
they are specified in the order, then, that can hardly be
said to be an absolute right or privilege. That is a relief
together with or appended with an obligation and
liability. If that is incurred at the time of exercise of
power of exemption, then, the Government can very well
enforce the power to exempt by withdrawing the said
order and equally without withdrawing it enforce the
terms and conditions therein despite the repeal. It is for
that purpose that clause (b) of sub-section (1) of section
3 is enacted. That is also recognition of the legal position
that by exempting something from the provisions of an
Act it is always understood that one is subjected to the
Act or law. It is applicable but the exemption means one
does not suffer the legal consequences to long as the
exemption is operative.
64. The Legislature was aware that the excess vacant
land may have been exempted bearing in mind its
location and the purpose for which it is being used or
proposed to be used. Clause (a) of sub-section (1) of
section 20 is the power to exempt the excess vacant land
from applicability of the provisions of Chapter-III and
same is exercised because it is necessary and expedient
in public interest to do so. Therefore, it is futile to urge
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that a person holding any vacant land in excess of ceiling
limit derives advantage or benefit when such power is
exercised by the State qua the excess vacant land or
vacant land in excess of the ceiling limit, more so
conditionally. .....
65. The order of exemption under section 20(1)
remains valid would mean that a person continues to
hold the vacant land in excess of ceiling limit and to
which none of the provisions in Chapter-III apply.
Chapter-III confers some rights in the holder of excess
vacant land as well. Those also cannot be exercised
because the exemption order is valid and continues to be
so despite the repeal. Nothing is gained by such a
situation where the excess vacant land being exempted
from the provisions of Chapter-III so as to permit the
usage of the land by the holder or retain it as an
exception, but neither the State being able to enforce the
conditions if any subject to which exemption is granted
or to withdraw the said exemption. Equally, the effect of
the repeal being to save the validity of the order granting
exemption under section 20(1) or any action taken
thereunder, the person in whose favour such exemption
is granted will not be able to do anything in relation to
such vacant land which except for the exemption may
have vested already in the State by virtue of section
10(3). He then cannot move the State and seek any
payment for acquisition and vesting. Hence, when the
Legislature had in mind the saving clause as is carved
out by section 3(1) (b) and (c), its intent was not to take
away any of the powers conferred in the State nor
exclude applicability of the provisions of Chapter-III of
the ULC Act to such an extent as would make it
impossible for the person to seek payment in terms of
sections 11 to 14 or to seek enforcement of such
conditions which are reciprocal and which are to be
performed by both. Just as the State would be unable to
enforce the conditions on which exemption is granted,
equally the members of the public or person holding the
excess vacant land would not be able to enforce the
conditions which are incorporated therein so as to
protect their interest. Such situation can never be
envisaged by the parliament. Such situation being
created would render all the provisions of the Repeal Act
redundant. The intent as is clear from a harmonious
reading of the Repeal Act and in the backdrop of the
aims and objects of the Principal Act is to save the
applicability of the provisions contained in Chapter-III to
the excess vacant lands which are subject-matter of
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exemption under section 20(1). Section 3(1)(a) covers
a situation where there is no exemption order passed
under section 20(1)(a) and (b). That covers the vacant
lands which are not subject-matter of any order of
exemption or such order being not in force on the date of
the Repeal Act and in regard to which the provisions
contained in Chapter-III were always applicable.
Therefore, if the State does not complete the action in
relation to these lands by taking possession thereof,
their mere vesting and deemed acquisition by virtue of
section 10(3) is not saved. Section 3(1)(b) deals with a
separate and distinct situation and that is applicable to
the lands which are vacant and in excess of ceiling limit
and in relation to which the order of exemption under
section 20(1) has been passed. The applicability of
Chapter-III in relation to such lands is, thus, ruled out
and so long as the exemption order is in force. If the
order of exemption is withdrawn the chapter-III becomes
applicable and all consequences would follow.
.....
71. The arguments of the Petitioners' counsel overlook
the fundamental aspect that the vacant land in excess of
ceiling limit has to be reckoned with effect from the date
of commencement of the Act and as far as the State of
Maharashtra is concerned that is 17-2-1976. In a Full
Bench decision of this Court reported in 1984 Mh. L. J.
(F.B.) 63 = AIR 1984 Bombay 122. Prabhakar Narhar
Pawar vs. State of Maharashtra, the Full Bench held as
under:
"11. There is no dispute that the vacant land
has to be determined with reference to the
date of commencement of the Act and the
relevant date is 17th February, 1976. So far
as Sub-clause (I) is concerned, the question as
to whether construction of a building is or is
not permissible according to the building
Regulations has to be determined with
reference to 17th February, 1976. We have
already referred to the definitions of the
words "building Regulations", which mean
Regulations contained in the master plan, and
the meaning of the expression "master plan"
is also given in the Act itself in section 2(h)
and it means, in relation to an area within an
urban agglomeration or any part thereof, the
plan prepared under any law for the time
being in force or in pursuance of an order
made by the State Government for the
development of such area or part thereof and
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providing for the stages by which such
development shall be carried out. Now, when
a question arises as to whether construction
of a building is not permissible under the
building Regulations in force, it is possible
that there may be an absolute ban or
prohibition under the relevant master plan
where under no circumstances construction
of building is possible on a given piece of land.
Such piece of land may have been reserved for
a purpose and on such reservation
construction of a building would not at all be
permissible. But, when we come to an
instance like the present one in which there is
an open plot of land which is admittedly a
house site on which a building could be
constructed, it is difficult to see how any part
of the land can be excluded under Sub-clause
(I) of section 2(q) on hypothetical
considerations. Section 3 of the Act and the
procedural provisions thereof which are
intended to implement the provisions of the
said section contemplate the determination of
the quantum of vacant land on facts as they
exist on the date of commencement of the Act.
Therefore, in a given case where the owners of
a land claims that certain land which is owned
by him should be excluded on the ground that
construction of a building is not permissible
under the building Regulations in force, it is
obvious that he will have to show that the
building regulations are attracted in his case.
For a person, who, on the commencement
date, never even intended to construct any
building on his land or for a person who has
not even submitted a plan for construction of
any building, the relevant building
Regulations are wholly irrelevant and he is
not affected by the building Regulations. It
appears to us that when sub-clause (I) refers
to land on which construction of a building is
not permissible under the building
Regulations, it was contemplated that on the
date of commencement of the Act, that is, 17th
February, 1976, the owner intended to
construct a building on the plot in question
and the plan of the building was either
already sanctioned or he had submitted that
plan for sanction. Where a building plan is
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already sanctioned and such sanctioned plan
is operative on 17th February, 1976 or a plan
has already been submitted for sanction, it
could be ascertained with certainty as to how
much land could be identified as land on
which construction of a building is not
possible. Sub-clause (I) of section 2(q) does
not, in our view, contemplate a general
exclusion of land from the purview of the Act
to the extent of two-thirds or one-half or
whatever may be the extent of land on which
no building can be constructed under the
relevant building Regulations in force in the
area under consideration irrespective of
whether a building is proposed to be
constructed or not on the date of
commencement of the Act. .....""
142)
In the circumstances, the petitioners cannot urge that
the land is not in excess of the ceiling limit. It is a mandate
flowing from the Act itself that the person is not entitled to hold
vacant land in excess of the ceiling limit and that is except as
otherwise provided in the Act. To enable holding of this land for
the specific purpose and which is permitted because of the order
of exemption that other proceedings are held in abeyance. To
urge that the Act itself is inapplicable or the land's character is
not that of surplus vacant land or land held in excess to the
ceiling limit is thus erroneous. The petitioners' arguments
overlook this important aspect of the matter.
143) Then, the argument is that the notices dated 10 th
August, 2006 and 3rd November, 2006 were not served.
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144) With regard to this aspect of the matter, the
respondents have clarified that there is a tacit admission by the
petitioners about the knowledge of all notices and proceedings
and in that regard they rely upon page 43 of the writ petition and
page 47 thereof. We have also found from the affidavit in reply
that there is no substance in this contention. The show cause
notice dated 10th August, 2006 is issued on the footing that
Jehangir Patel and other hold the vacant land in excess of the
ceiling limit. The notice was addressed to Jehangir Patel and
others and Ms. D. D. Patel and others, Ms. Estalle R. J. Yesugar,
all through their advocates. Then, on 14 th Separately, 2006, a
communication was addressed to all the land holders and some of
them were served through advocates as throughout they were
corresponding with the competent authority. The petitioner
nos.1 and 2 after having executed a irrevocable power of attorney
and an agreement in favour of petitioner no. 3 can hardly
complain. They were not at all interested as no attempt was made
by them to personally correspond with the ULC Authority ever.
We do not find any merit in the contention that service of the
notices on the advocates would not be a permissible mode. That
apart, the office of the Additional Collector and Competent
Authority, Greater Mumbai addressed a communication to
Tehsildar, Andheri directing him that notices were issued to the
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land owners of the land mentioned at the address available in the
office of the competent authority, but the same are returned
unserved as the land owners are not residing at the given
address, hence, a publication of the notices at site be made and a
report be forwarded in that behalf. Accordingly the notices were
published. Thus, service of notice on one of the co-owners and his
acknowledgment is substantial compliance with the applicable
Rule. The competent authority has also taken care to publish
such notice at site.
145) We also have on record a letter dated 21 st September,
2006 by Cyrus Patel to the competent authority, in which he
stated as under:-
"Cyrus S. Patel
Lyndewode House, Top Floor, Bomanji Petit Road,
Bombay 400 026
21st September, 2006
The Additional Collector & C. A.
5th Floor, Near Chetna College,
Sub Dist. Admin Bldg.
Bandra (East)
Mumbai 400 051
Sub: Your Show cause Notice U/s. 20(2) of the UL
(C&R) Act, 1976.
Ref: Your Letter No. No. C/ULC/D-V/6(i)/SR-XI-853,
VIII-67, XI-863, XV-377/XII-880, XVII-408
Dear Sir,
The property bearing S. No. 141-B, City Survey No. 864
belonged to the late Rustamji Patel who died several
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decades ago without a Will. His nephews Jehangir P.
Patel and Minocher P. Patel (both deceased) obtained
Letters of Administration to his estate.
The property has not been distributed/sub-divided
amongst the numerous beneficiaries in their appropriate
shares. The beneficiaries had disputes amongst
themselves and as a result of litigation, the property is in
the hands of the Court Receiver since 1984. The Reserve
bank of India is also a party to this litigation.
Now, the disputes amongst the beneficiaries have been
settled and it will be necessary to take back the property
from the Court receiver and also settle matters with
Reserve Bank of India. This procedure is in progress.
To enable the estate of the late Rustomji Patel to be
represented in the matter (since both the administrators
Jehangir P. Patel and Minocher P. Patel are dead), we
have applied to the High Court for Letters of
Administration de bonis non to the late Rustomji Patel's
estate and our application is pending.
Please therefore do not pass any orders until matters are
settled and clarified when the extent of vacant land (if
any) can be ascertained.
Yours faithfully,
For self and Pesi S. Patel
Sd/-
CYRUS PATEL"
146) Then and prior to the order passed on 20 th November,
2006, another notice was addressed directing the owners to
remain present at a hearing scheduled on 15th November, 2006 at
3.30 p.m. It is in these circumstances that we are of the opinion
that there is no merit in the contentions of Mr. Chidambaram.
147) In the affidavit in reply, the respondents have pointed
out that earlier five statements under section 6(1) of the
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Principal Act have been filed by five declarants and on 25 th May,
1977 the then competent authority passed an order under
section 8(4) of the ULC Act, thereby declaring the area
admeasuring 66,432.00 square meters as surplus vacant land.
Being aggrieved and dissatisfied by this order passed under
section 8(4) of the Principal Act Minocher Patel and two others
filed an appeal before the Additional Commissioner under section
33 of the ULC Act. That appeal was dismissed on 3rd June, 1978.
A final statement under section 9 of the ULC Act was prepared
and issued so also served on the declarants on 30 th May, 1977.
Thereafter, a notification under section 10(1) of the ULC Act was
issued on 30th May, 1977 and was published in the Government
gazette on 7th July, 1977. Then, a notification under section
10(3) was issued on 8th September, 1978 and that was published
in the Government gazette on 28th September, 1978.
148) The petitioners seek to derive advantage of the order
passed by this court on 12 th November, 1981 in miscellaneous
petition referred as above, but the fact that these are surplus
vacant lands and subjected to the Act already cannot be
overlooked. That is being conveniently brushed aside. In the Full
Bench decision referred above and paras of which have been
reproduced by us, this Court has already held that there is no bar
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for exercise of the power under section 20(1) of the ULC Act even
upon vesting of the lands in the State. In other words, even if the
power under section 10(5) is exercised, there is no impediment in
considering and granting an exemption under section 20 thereof.
The Full Bench follows a decision of the Hon'ble Supreme Court of
India in that regard.
149) In the above circumstances, we do not see how it can
be argued by the petitioners that the land was out of the purview
of the Act or lost its character as a surplus vacant land.
150) On the plea of notice or lack of it, we have already held
that the petitioners were served with the notices as admitted by
them, through their erstwhile advocates. However, in the
affidavit in reply, it has been pointed out as to how for carving out
the land to be conveyed to the RBI and segregating and
separating it from the balance vacant land in excess of the ceiling
limit, the office of the second respondent convened a meeting of
all concerned authorities on 28 th February, 1983. That was
attended and a roznama was prepared thereof. Thus, the legal
status of the land was known to the land holders/owners.
Further, they do not dispute that a power to grant exemption
would also take within its fold a power to withdraw it. That power
has been exercised in compliance with law. At this stage, it is
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pertinent to note that there is divergence between the factual
version set out by the petitioners and that referred by respondent
no 7(d) to (e).
151) We have also held above that till the exemption was
withdrawn, the steps or measures under the Act, which were held
in abeyance were not initiated and concluded. We are also in
agreement with Mr. Samdani that the notices as referred in the
foregoing paragraphs were not required to be served on the Court
Receiver, High Court Bombay. In that regard, we have carefully
perused the record and we find that the competent authority had
no knowledge of the suit and the appointment of the Court
Receiver. It is clear from the documents and which are relied
upon, namely, serial numbers 27, 28, 31, 40 and 41 of the
chronology of events that none of these can impute knowledge of
the court proceedings and the appointment of the Court Receiver
to the competent authority. The report of the Court receiver at
page 117 of the paper book does not indicate that whether it was
submitted or filed in the court proceedings. If at all it was filed
and a direction has been issued in pursuance thereof whether at
the stage of issuance of such directions, the competent authority
or his representatives were ever present. This document does not
indicate that copy of the same was supplied or furnished to
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competent authority. Then, the letter dated 19 th September,
1984 is addressed to the Collector of Bombay and the Tehsildar,
Andheri. It is apparent from the record that the designation of
the competent authority is Additional Collector and Competent
Authority (ULC). It is not a letter addressed to the Additional
Collector, Bombay Suburban District either, who is the competent
authority. Therefore, addressing a letter to the Collector and
Tehsildar does not denote that they had knowledge of the court
proceedings and the order.
152) Then, the document at serial number 31, which is a
letter addressed by the Court Receiver to respondent no. 4 City
Survey Officer, Andheri, informing him about his appointment
and an entry in the property card would not mean that the
competent authority had knowledge of any suit filed in relation to
the subject land, any interim orders, much less appointment of
the Court Receiver therein. We do not find such knowledge even
from a reading of the further letters and that particularly
addressed by respondent no. 7(d). We have reproduced the letter
in the foregoing paragraphs. It is apparent that it is in reply to a
show cause notice issued under section 20(2) in relation to
proposed withdrawal of the exemption. There, in the passing, it is
mentioned about disputes amongst the owners and a litigation,
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but if this letter is carefully perused, it is apparent that there are
absolutely no details of the court, in which the suit or litigation is
pending, the reliefs therein, the parties thereto, the details of the
appointment of the Court Receiver and in relation to which land
or the entire vacant land in excess of the ceiling limits or
otherwise. Some passing reference does not mean that the
competent authority had knowledge and with all details about the
court proceedings.
153)
In relation to the document at serial number 46, that
is also a letter from respondent no. 6(b). A copy of that letter is at
page 146 of the paper book. That is in identical terms as that of
the letter addressed by respondent no. 7(d). In such
circumstances, we are in agreement with Mr. Samdani that
addressing such letters and to distinct authorities and located at
distinct offices cannot attribute knowledge of the court
proceedings and the appointment of the Court Receiver to the
competent authority. At no point of time, from the entire record,
it reveals that copies of the plaint, proceedings and orders in the
suit were ever forwarded and supplied to the competent
authority. At no stage the progress of the suit was informed.
Once the Government and the competent authority were not a
party to the suit, but could have derived knowledge thereof only
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through land owners or their agents, then, we do not see how the
petitioners can insist that the proceedings that we have referred
above under section 20(2) and the orders passed under section
8(4), the finalisation under section 9 and notification under
section 10 with its sub-sections can be termed as illegal or null
and void. The position is reverse because all co-owners, advised
as they were by competent legal advisors, are aware that the land
held by them is in excess of the ceiling limits and is governed by
the Principal Act as also subject thereto. It is not to be dealt with
except in accordance with that Act.
154) We have not seen any complaint made to any
authority regarding the steps taken and there is substance in the
grievance of the State that some technical arguments on the
alleged deficiency in the notices and proceedings cannot be
entertained. The petitioners never filed any objections or raised
challenge during the relevant period to these notices. The
grievances are raised after 2 and half years of the exemption
order being withdrawn and the proceedings under the Principal
Act finalised. Once the belated challenge and based on some
alleged technical deficiencies cannot be entertained, then, the
reliance of Mr. Chidambaram on Rule 5(2)(a)(ii) of the ULC Rules
need not detain us.
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155) In that regard, we find in the grounds in the petition at
page 74 of the paper book a general allegation and averment is
made. We have concluded that the petitioners had notice of all
the proceedings. The co-owners of the property had addressed
letters and specifically to the competent authority. In such
circumstances, we do not think that Rule 5 and its language can
be of any assistance to the petitioners in this case. We have no
hesitation in rejecting the ground and the challenge based
thereon.
156) After all the above submissions are noted and covered,
now what remains for consideration is the complaint that
possession of the land was not taken and in accordance with law.
In that regard, section 10 of the ULC Act is relied upon. That
section reads as under:-
"10. Acquisition of vacant land in excess of
ceiling limit. - (1) As soon as may be after the
service of the statement under section 9 on the person
concerned, the competent authority shall cause a
notification giving the particulars of the vacant land
held by such person in excess of the ceiling limit and
stating that -
(i) such vacant land is to be acquired by
the concerned State Government, and
(ii) the claims of all persons interested in
such vacant land may be made by them personally or
by their agents giving particulars of the nature of their
interests in such land,
to be published for the information of the general public
in the Official Gazette of the State concerned and in
such other manner as may be prescribed.
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(2) After considering the claims of the persons
interested in the vacant land, made to the competent
authority in pursuance of the notification published
under sub-section (1), the competent authority shall
determine the nature and extent of such claims and
pass such orders as it deems fit.
(3) At any time after the publication of the
notification under sub-section (1), the competent
authority may, by notification published in the Official
Gazette of the State concerned, declare that the excess
vacant land referred to in the notification published
under sub-section (1) shall, with effect from such date
as may be specified in the declaration, be deemed to
have been acquired by the State Government and upon
the publication of such declaration, such land shall be
deemed to have vested absolutely in the State
Government free from all encumbrances with effect
from the date so specified.
(4) During the period commencing on the date of
publication of the notification under sub-section (1) and
ending with the date specified in the declaration made
under sub-section (3), -
(i) no person shall transfer by way of sale,
mortgage, gift, lease or otherwise any excess vacant
land (including any part thereof) specified in the
notification aforesaid and any such transfer made in
contravention of this provision shall be deemed to be
null and void; and
(ii) no person shall alter or cause to be
altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State
Government under sub-section (3), the competent
authority may, by notice in writing, order any person
who may be in possession of it to surrender or deliver
possession thereof to the State Government or to any
person duly authorised by the State Government in this
behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with
an order made under sub-section (5), the competent
authority may take possession of the vacant land or
cause it to be given to the concerned State Government
or to any person duly authorised by such State
Government in this behalf and may for that purpose
use such force as may be necessary.
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Explanation. - In this section, in sub-section (1) of
section 11 and in sections 14 and 23, "State
Government", in relation to -
(a) any vacant land owned by the central
Government, means the Central Government;
(b) any vacant land owned by any State
Government and situated in a Union territory or within
the local limits of a cantonment declared as such under
section 3 of the Cantonments Act, 1924 (2 of 1924),
means the State Government."
157) The submission of Mr. Chidambaram is that assuming
everything under the Principal Act is in accordance with law,
namely, the character of the land is vacant land in excess of the
ceiling limits, still, the possession of the same is not taken, then,
post repeal of the ULC/Principal Act, the entire proceedings lapse
and the land must be restored back to the petitioners. This is on
the footing that the possession of the land is not taken. The
argument is that even if the land vests in the State, possession
thereof has to be taken, else, the Repeal Act comes into play. That
would result in lapsing of all the proceedings.
158) Here again, we find that petitioners' pleas are self
defeating and contradictory. They do not project physical
possession in themselves, at least from 19th September, 1984 and
state that the physical possession of the land is with the Court
Receiver, High Court Bombay, who is appointed in the suit
instituted and which was pending, firstly in this court and then
made over/transferred to the City Civil Court. They submit that
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no notice is served on the court receiver. Further, they rely upon
the fact that before taking possession of the surplus vacant land,
leave of the court was not obtained. An attempt was sought to
seek leave after the possession was taken or the Court Receiver's
possession is interfered with, but that chamber summons of the
State Government is dismissed.
159) Then, there is an alternate argument that the Court
Receiver holds possession of the property on behalf of the parties
to the suit and so long as there is no notice served on the person
in possession, then, the compliance with the statutory provision
has not been made. There are alternate arguments, namely, that
de facto possession must be taken by the State and there is no
symbolic possession as far as scheme of the Repeal Act is
concerned. For that possession to be obtained, according to the
petitioners, there should be voluntary surrender by them or there
should be a peaceful or forcible dispossession. Neither has been
demonstrated and hence, the Repeal Act applies with full force.
160) We have already held that the consequences under the
Principal Act on grant of exemption and subsequent withdrawal
are known to the parties. The supporting respondents were
aware of the steps that were proposed and they have
corresponded with the authorities. The letters addressed by them
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are reproduced by us. Once all the steps in pursuance of the
withdrawal of the exemption upon publication of the notification
under section 10(3) of the Act are initiated and completed much
prior to the Repeal Act, then, the only satisfaction that is required
to be recorded by us is whether possession of the land was taken
or not.
161) In that regard, we must note at once that the Repeal
Act had come into force in Maharashtra on 29 th November, 2007.
True it is that sensing the enactment of the Repeal Act and
particularly becoming aware of its consequences, some alert
citizens moved this court in a Public Interest Litigation. They
impressed upon the State the need and rather urgency to take
steps so that the lands vesting in the State do not go back to those
land holders who have either violated the terms and conditions of
the exemption, if any, or not complied with the same or have
never questioned the proceedings under the Act. At the instance
of such alert citizens, this court entertained the PIL and issued
directions to the State Government. However, what we find in the
present case is that a notice under section 10(5) was issued on
27th February, 2007. That intimated that the possession would be
taken on 9th March, 2007 at 2.30 p.m. That notice was promptly
despatched and from the original file it is revealed that the same
was done on 27th February, 2007 or 1st March, 2007. Though in
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the notice, 9th March, 2007 is the date determined for taking
possession, however, the City Survey Officer, Andheri duly
informed the competent authority that the official from his office
visited the site, but found that there was a board affixed that the
property is in possession of the Court Receiver. That is how
possession was not taken on 9th March, 2007 and the official
returned without taking the same. A record was made of this
event and the competent authority was informed accordingly on
12th March, 2007. However, the competent authority informed
the City Survey Office on telephone that possession should be
taken and ex-parte on 28th March, 2007 and panchanama be
drawn accordingly. Thereafter, the possession was taken at site
on the given date, namely, 28 th March, 2007 and the competent
authority was informed about the same in writing on 29 th March,
2007 by the City Survey Officer, Andheri. This letter is in the
original file and we have perused it. We have also perused the
panchanama and it is stated that though this panchanama recites
that the possession has been taken in the presence of panchas,
but the criticism is that their signatures or identity is not
reflected on this document. We called for the original records and
we found that there is a possession receipt and the possession
receipt records that in pursuance of the notice under section
10(5) the possession of the immovable property has been taken
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on behalf of the City Survey Officer by one H. N. Patil, who is the
Inspector of Land Records on 28th March, 2007 at 3.30 p.m.
162) There is also another record which would indicate that
the possession was taken on 28th March, 2007 and at that time,
the land was vacant.
163) Mr. Chidambaram relied upon the wording of sub-
section (5) of section 10 and submitted that the possession was
not taken after the expiry of the period stipulated in the section,
but prior to the same. In that regard we find that the notice dated
27th February, 2007 stipulated the date as 9 th March, 2007 for
taking possession. However, on that date, possession could not be
taken and the reasons why it could not be taken are set out in the
letter addressed by the City Survey Officer on 12 th March, 2007.
However, the City Survey Officer, Andheri was directed to take
possession on 28th March, 2007 and he took it accordingly. Thus,
it is not as if an attempt was made to take possession abruptly or
suddenly. Possession has been taken after the expiry of the
stated period and as set out in sub-section (5) of section 10 of the
ULC Act. We have found from the original despatch register that
the notice was duly despatched by post and there is thus no basis
for the complaint that there is a violation or breach of the
provisions of law.
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164) In the affidavit in reply, the State and the competent
authority have pointed out as to how the possession was taken.
As far as that aspect is concerned, petitioner no. 3, who files an
affidavit in rejoinder, asserts that sub paras (V), (X), (Y), (Z) and
(DD) of para 6 of the petition are reiterated. He states that the
competent authority has not taken possession of any part of the
property either under section 10(5) of the ULC Act or otherwise
and the so called possession receipt and panchanama do not
evidence taking or giving of actual possession or any part of the
property and the same is a mere paper record.
165) As far as the petition goes in paragraph no. 6, which
starts from page 21, petitioner no. 3 places reliance on the above
sub paras of that paragraph commencing from page 41. In these
paragraphs, a very guarded statement is made that respondent
no. 1 competent authority sought to issue notice dated 27 th
February, 2007, but sub para (X) at page 43 of para 6 would
denote that indeed a notice dated 27 th February, 2007 was issued,
it was received or the contents thereof were known to the
petitioners. Thus, the averments in para 6(X) of the petition
would denote as to how the surveyor from the office of respondent
no. 4 came to the site and after inspecting the same found that
there were some security guards or that the Court Receiver
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claimed to be in possession. If it is the petitioners' case that they
are entitled to the notice for they are in possession, then, the
averments would have been specific and clear. The petitioners
are aware that their version is conflicting. If they rely upon the
fact that the suit was filed, the property was custodia legis and
therefore the Court Receiver's physical possession cannot be
interfered with or disturbed, then, how they are entitled to claim
notice under section 10(5) of the Principal Act has not been
clarified at all. Yet, they pleaded knowledge about the notice and
the attempt made by the surveyor to take possession of the
vacant land which was in excess of ceiling limit admittedly, but
found some board of the Court Receiver and reported the matter
to the superiors of the surveyor. Thereafter, he was instructed to
go again and that is how possession was taken. Thus, the
averments in para 6(X) do not project an entitlement of the
petitioners to notice or any attempt by the petitioners to question
the existence or contents of the documents. Similar is the
position with regard to the averment at page 44 para 6(Y) and
para 6(Z). Even the averments in para 6(DD) would not enable
us to conclude that the petitioners were unaware of the
developments or that their case is that section 10(5) has been
violated or breached. Thus, all arguments of Mr. Chidambaram
are much beyond the pleadings. The pleadings must project and
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emphasise the case that is sought to be orally pleaded. In the
present case, we find that one who has been given a power of
attorney to deal with the property by the petitioner nos. 1 and 2
way back on 18th October, 1991 is now arguing the case of the
land holders. To what extent he can project their case and being
deprived of their lawful entitlement must be borne in mind. It is
only upon petitioner no. 3 entering the scene and pursuant to the
power of attorney executed in its favour that the owners decided
to raise a challenge. Petitioner nos. 1 and 2 are not interested at
all in claiming the land. Therefore, it is petitioner no. 3 who
sometimes pleads the case of petitioner nos. 1 and 2 being
entitled to notice under section 10(5), but having realised that
there was already a conveyance executed in favour of the RBI, a
suit was pending and was not decreed that he shifts the stand and
complains that the property is custodia legis and therefore, the
Court Receiver's physical possession could not have been
disturbed. Once the Court Receiver having informed, according to
petitioner no. 3, the office of the Collector, Bombay Suburban
District and the City Survey Officer, Andheri, then, notice should
have gone to him or through the parties to the suit to the office of
the Court Receiver, High Court Bombay. Hence, we are of the
opinion that at the instance of such parties, it is not necessary to
examine the contentions of Mr. Chidambaram.
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166) Even otherwise, we do not find any violation of sub-
section (5) of section 10 for a notice in writing had indeed been
issued. That such a notice in writing was issued on 27 th February,
2007 and the possession was taken not within 30 days of the
issuance thereof, but on 28th March, 2007 that we do not think
that sub-section (5) of section 10 has been breached. We do not
see as to how invalidity or illegality of the notice can be pleaded
by petitioner no. 3 in the teeth of pendency of the suit in the
Bombay City Civil Court and secondly, not being the recorded
land holder/owner of the property. It is petitioner no. 3 who is
pleading the case of petitioner nos. 1 and 2 who have already
divested themselves of their right, title and interest in the
property. They had divested themselves, because the conveyance
in favour of RBI was not set aside on the date when the land
vested in the State and the possession was taken. Secondly, they
have already divested themselves of the right, title and interest
by executing an agreement in favour of petitioner no. 3 and the
power of attorney.
167) As far as sub-section (6) of section 10 is concerned, we
do not think that the same can be read to render assistance to the
petitioners in any manner. It is the notice in writing under sub-
section (5) of section 10 which orders the person who may be in
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possession of the vacant land to surrender or deliver possession
thereof and when sub-section (6) uses the word "order", it
obviously refers to the notice in writing and containing that order
or direction. Therefore, the failure to comply with that and
within the time specified from the service of the notice that the
competent authority may take possession of the vacant land or
cause it to be given to the concerned State Government or to the
authorised person and for that purpose use necessary force as
well.
168) We are of the view that arguments of Mr.
Chidambaram on the construction and interpretation of sub-
section (5) and sub-section (6) of section 10 need not detain us
further. In this regard, we find much substance in the contention
of Mr. Samdani that the land in question was and is a vacant land
and possession thereof has been taken. The documents
evidencing taking of possession, namely, panchanama, possession
receipt etc. cannot be questioned nor their contents put in issue at
the instance of such petitioners whose status and stand is as
above. We are in agreement with Mr. Samdani that it is the third
petitioner who is in control of all proceedings. Having found that
petitioner nos. 1 and 2 are aware of the steps and measures taken
under the Principal Act, he does not make any emphatic pleading,
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but very guarded and careful statement. We are, therefore, of the
opinion that no benefit of the Repeal Act or section 3(1)(a)
thereof can be derived by the petitioners in the present facts and
circumstances.
169) The conduct of the supporting respondents must also
be noticed. We find that Mr. Chidambaram's arguments overlooks
an important aspect of the matter and namely that an affidavit
has been filed in this petition by one Shivaji Jondhale. He was the
Additional Collector and Competent Authority from 16 th March,
2004 to 31st March, 2009. It is in his tenure that some important
events, based on which the challenge is raised in this petition,
have taken place. We have reproduced substantial parts of his
affidavit.
170) However, another crucial part or portion of this
affidavit needs to be referred. In para 8 of his affidavit, the
deponent refers to the PIL Petition No. 4 of 2006 and the
direction to the competent authority therein issued by this court
on 17th August, 2006 and to finalise all cases not later than 31 st
December, 2007. That is how in terms of this order passed on
17th August, 2006, the steps were taken. We need not repeat
those steps, but what we find is that in this paragraph, he states
that after publication of the notification in the Government
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gazette, the contents of which are deemed to be known to all
parties, he issued the notice under section 10(5) to the declarant
on 27th February, 2007. That was to inform the taking of
possession on 9th March, 2007. On 9th March, 2007, the
Maintenance Surveyor of the City Survey Office went to take
possession, but he did not take possession and submitted the
report to the competent authority (the deponent) that there was
a board of Court Receiver on a part of the land of Survey No. 141B
bearing CTS No. 864, village Ambivali. On receiving this letter,
the competent authority once again verified the papers
pertaining to the proceedings under section 8 of the Principal Act
and as no order appointing the Court Receiver was in the file, the
competent authority visited the site on 20 th March, 2007. He also
found that a board was only on the part of the land bearing
Survey No. 141B, Ambivali, which was on the other side of the
nallah and this area, as per the plan prepared under section 8(4)
of the Principal Act, was not within the vacant land in excess of
the ceiling limit. Therefore, the City Survey Office was informed
that it should move and take possession as the Government had
to submit status report in the PIL Petition No. 4 of 2006.
Accordingly, the Maintenance Surveyor took possession of the
surplus vacant land on 28th March, 2007.
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171) The abovenoted developments and facts would find
corroboration if one peruses the order passed by the Division
Bench of this Court in Appeal No. 740 of 1984 in Suit No. 2345 of
1983. That was an appeal filed by the RBI/original defendant
no.15 in the suit against Mrs. Dhun Dara Patel, who is the mother
of petitioner nos. 1 and 2 and plaintiffs in the suit and original
defendant nos. 1 to 14. That order reads as under:-
" We fail to see how the order appointing the Court
Receiver prejudices any one in the present case. The
property in question is vacant land and it is not the
case of the appellants herein, the Reserve bank of
India, that they want to put it to any use pending the
hearing and final disposal of the suit. The
appointment of the Court Receiver and his taking
possession of the land would ensure that no possible
trespasser can claim any title to the land. The learned
trial Judge has exercised his discretion in favour of
appointing the Receiver and, in the above
circumstances, we see no reason why any interference
with that decision is called for. The Court Receiver is
directed to take all proper steps, including the
employment of adequate number of Watchman and
other security services, if necessary, to ensure that no
trespasser gets into the land in question which, we are
happy to learn, has not yet been trespassed upon. For
these purposes, it will be such of the respondents who
obtained the order appointing the Receiver who will
put him in funds in the first instance. In taking these
steps the Receiver will, of course, consult the
appellants as well as the respondents. We may
mention that it was suggested to the appellants that, if
they so desired, they could stay on the lands as the
agents of the Receiver without security or royalty, but
Mr. Kapadia, the learned counsel for the appellants,
informs us that it was not possible for the appellants to
accept that suggestion.
In view of this, the appeal is dismissed.
On Mr. Kapadia's application, the operation of this
order is stayed for a period of three weeks."
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172) Thus, a vacant piece of land was the subject matter of
the suit, that no measurements were provided and the extent to
which the Court Receiver was in possession thereof also having
not been indicated, we do not see how either objections and raised
before us, namely, that the petitioners were in physical
possession and that is disturbed without valid and legal notice to
them or that the property was custodia legis and in possession of
the Court Receiver, can be accepted. We have found from the
order of the learned Single Judge, which was impugned in the
Appeal that the same as well does not refer to any survey number
or CTS number. That order recites as to how the plaintiffs along
with defendant nos. 1 to 15 in the suit are the heirs of R. D. Patel.
Defendant nos. 1 and 2 to the suit Jehangir Patel and Merwanji
Patel were the surviving executors of the deceased under the Will.
This order explains as to how the land admeasuring 73,200
square meters situate at Versova, Andheri was at one time
considered to be kharab or waste land. Petitioner nos. 1 and 2
before us and their mother claimed that they were entitled to
2/7th share in the suit property. After referring to the plaint
averments and specifically that there was an exemption order
exempting 59,407.10 square meters and the pleading of the
plaintiffs that the order of the Government of Maharashtra dated
10th September, 1982 granting exemption was void and illegal,
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what they projected is that the acts of the executers in executing
the conveyance dated 15th September, 1983 in favour of RBI were
void, invalid and not binding on them. It was specific case of
petitioner nos. 1 and 2 and their mother that the administration
of the estate of deceased R. D. Patel has been completed by the
executors by the year 1960. Since the estate has been completely
administered, the executors ceased to be executors as such and
became only trustees of the land and as such they had no right to
sell the property. ig Then, reliance was placed upon a revision
application filed before the State of Maharashtra on 28 th
December, 1987 and the averments therein. There is also a
reference made to the order passed in the miscellaneous petition
and based on such allegations and contentions, the declaration
with regard to the validity and legality of the conveyance in
favour of RBI was made. All the contentions raised by the
petitioners and the position as emerging from the relevant
provision of the Indian Succession Act 1925, which has been
noted by us above, particularly with regard to the role of
executers and their powers, was highlighted by the executors. It
is in these circumstances that the learned Single Judge of this
court in para 25 of his order observed that the suit property had
not been administered as that was considered to be waste land.
The prima facie view with regard to the conveyance resulted in
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the appointment of the Court Receiver. It is in these
circumstances that we must see the conduct of the supporting
respondents for they have also executed a power of attorney in
favour of M/s. BPM Industries Limited on 7th January, 1998. It
appears that M/s. Satelite Developers Limited came to be
appointed as agent/attorneys in respect of the property, which is
subject matter of this petition. Business of both these entities
merged and that is how not only on the strength of the power of
attorney, but some arrangement recorded therein, these builders
claimed the interest of even respondent no. 7(a) to (d). These are
grandsons of Pestonji Patel, who was the brother of the owner R.
D. Patel/deceased. Pestonji had died during the lifetime of the
deceased and was survived by five sons and one daughter. All the
children of Pestonji became legal heirs of the deceased.
Respondent nos. 6(a) and (b) represented estate of Jehangir
Patel, who was one of the sons of Pestonji and respondent nos.
7(a) and (d) are the sons of Shavak another son of Pestonji. The
power of attorney dated 6th June, 1998 authorises the deponent
of the affidavit in reply filed to the writ petition on 3 rd January,
2014, to file it. This affidavit in reply proclaims that entire
property is the subject matter of Suit No. 2345 of 1983. The
entire property means that which is covered by the conveyance
in favour of RBI. This affidavit pertinently makes a statement
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that the Court Receiver has been in physical possession of the
property in question. This affidavit does not deny the issuance of
the notice in later half of 2006 and the response thereto by
respondent no. 7(d) vide his letter dated 21st September, 2006. It
also refers to a letter of respondent no. 7(c) dated 19 th December,
2006. This affidavit, in para 9, specifically says that respondent
no. 7(a) to (d) became aware of an order dated 20th November,
2006 withdrawing/cancelling the exemption. It also refers to the
steps under section 8(4), 10(1) and 10(3) of the Principal Act as
also a statement indicating the extent of the land out of the said
property, which, according to the competent authority, was
within ceiling limit and the extent of the land beyond ceiling limit.
This affidavit also refers to contents of the order dated 20 th
November, 2006. This affidavit claims that these respondents
have put the competent authority to notice that the Court
Receiver, High Court Bombay is in possession of the vacant land.
This affidavit, in paras 10 and 11 makes alternate contentions
and questions the final statement under section 9 and alleges that
it was neither served on respondent nos. 7(a) to (d) or their
predecessor in title nor on the Court Receiver. However, this
affidavit refers to the letter dated 19th December, 2006 addressed
by respondent no. 7(c). In para 14 of this affidavit, it refers to the
notice under section 10(5) issued on 27 th February, 2007, but
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asserts that it was not issued to the person in possession of the
property. This affidavit, in para 15 states that no notice was
given to anybody stating that possession of the land was taken on
28th March, 2007. However, makes a guarded statement
thereafter that assuming without admitting that the possession of
the land was taken on 28th March, 2007, the same was without
notice and contrary to the provisions of the ULC Act.
173) We have perused this entire affidavit carefully also to
find out whether it contains any statement which would make out
a case of lack of knowledge or notice of the events leading to
taking possession of the surplus vacant land, to the petitioners.
Quite opposite, we find that this affidavit maintains silence and
rather affirms the position that petitioners and respondent nos. 6
and 7 are all co-owners of the land. It claims that actual physical
possession of the property is with the Court Receiver. Thirdly, it
contains a statement that the notice dated 27 th February, 2007 is
bad in law for it does not provide 30 days period prior to the
appointed date for taking possession. Though it states that no
possession was taken on that date, namely, 9 th March, 2007 or
any other date, it questions the act of one side possession by
terming it as impermissible in law. Thus, conflicting and shifting
stands of the parties would show that only the builders and
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developers have come forward to raise such pleas and not the real
owners. That is a prominent feature and continues to be so, in this
litigation.
174) In the above backdrop, we do not see how we can
accept contentions of the learned Senior Counsel appearing for
the petitioners. These contentions and some of which are general,
sought to be supported by judgments of this court and the Hon'ble
Supreme Court of India, cannot be accepted in the light of the
factual position emerging from the records. Petitioner nos. 1 and
2 and the respondents supporting them conveniently forget that
they are put forward to raise the challenge in the teeth of their
acts of executing power of attorneys and entering into
agreements with builders and developers. We, therefore, do not
see any reason to accept the contentions of the petitioners as
raised in the writ petition as also in opposing the appeal. We are
of the view that in the absence of cogent, clear and consistent
pleadings, it would not be safe and proper to accept their
contentions. The judgments of the Hon'ble Supreme Court of
India and this court set out the legal principles, but their
application would depend upon the facts and circumstances of
each case.
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175) On the aspect of applicability of section 3(1)(a) of the
Repeal Act, Mr. Chidambaram's reliance on the judgment of this
court and that of the Hon'ble Supreme Court of India is entirely
misplaced.
176) In the case of Bank of Baroda Employees Arunoday
Co-operative Housing Society Ltd. vs. State of Maharashtra 17
decided on 21st November, 2011, the State and the competent
authority claimed that possession of the land declared as surplus
vacant land was taken on 14th November, 2006, whereas, the
petitioner asserted otherwise. The facts have been noted in para
2 of the order of the Division Bench and it found that the
State/competent authority took possession on the above date
pursuant to a notification under section 10(5) of the Principal Act
dated 30th June, 2006. The Division Bench noted the case of the
petitioner that as on 30th October, 2006, when the notice under
section 10(5) was issued, it was the petitioner society who was in
possession of the land and the building and therefore, the act of
the State in taking possession without issuing notice to it is
illegal. Then, they questioned the contents of the possession
receipt and which states that the person to whom notice was
issued is not willing to handover possession. It is in these
circumstances that the Division Bench held that the provisions of
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the Repeal Act would come into play, meaning thereby, the
proceedings under the Principal Act lapse. It is in the above
factual background and peculiar to the petitioner's case that all
findings in para 5 have been rendered. We do not see, therefore,
any assistance can be derived from the said observations,
findings and conclusions. Notice under section 10(5) may have
been held to be mandatory. The notice also must set out the
period and in terms of the sub section so as to enable the person
in possession to surrender or deliver possession of the vacant
land vesting in the State to the State Government or to any
person duly authorised by the State. He should be, therefore, put
to notice in writing and which should contain the direction to
surrender or deliver possession within 30 days of the service of
the notice. We do not see as to how this principle and which also
has been laid down in the judgment of this court in the case of
M/s. Johnson and Johnson Ltd. and Anr. vs. State of
Maharashtra and Anr.18 decided on 9th November, 2011 would
have any application to the facts of this case.
177) Then comes the reliance on the judgment in the case
of State of Uttar Pradesh vs. Hari Ram 19. In this case, one should
not forget that respondent Hari Ram was holding excess land
19 (2013) 4 SCC 280
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admeasuring 52,513.30 square meters. An order under section
8(4) of the Principal Act was passed by the competent authority
on 29th June, 1981. The notification under section 10(1) of that
Act was issued on 12th June, 1982 and published in the
Government gazette. The notification under section 10(3) was
published on 22nd November, 1997. On 10th June, 1999, the
surplus vacant land stood vested in the State in terms of the
entry in the Revenue records. On 19 th June, 1999, a notice under
section 10(5) directing Hari Ram to handover possession of the
land declared surplus was issued. Aggrieved by that, Hari Ram
preferred Appeal No. 29 of 1999 before the District Judge,
Varanasi under section 33 of the Principal Act, but what he
impugned in that appeal was important. He challenged the order
under section 8(4) of the Act and urged that before that order
was passed, no notice, as contemplated under section 8(3) of that
Act, was served on him. That appeal was allowed and the order
dated 29th June, 1981 under section 8(4) of the Act was set aside
on 14th December, 1999. Aggrieved by that order, the State of
Uttar Pradesh filed a writ petition in the High Court of Allahabad
and the High Court, after elaborately considering various
contentions, took a view that for taking physical possession of the
land, proceedings under section 10(5) have to be followed. On
facts also the Division Bench found no reason to interfere with the
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order of the District Judge.. The State's writ petition was
dismissed. That is how the State approached the Hon'ble
Supreme Court against the decision of the High Court of
Allahabad in Hari Ram's case and following Hari Ram in other
cases. The arguments have been noted in paras 6 and 7 and we
must not forget that the Hon'ble Supreme Court was concerned
with the primary submission that under the Principal Act, though
there is a vesting of the land in terms of sub-section (3) of section
10, upon publication of the notification, what one finds is that by
virtue of sub-sections (4) and (5) of section 10 so also sub-section
(6) thereof, after such vesting, the physical possession has to be
taken and obtained by recourse to these provisions. It is in
examining the scope of sub-sections (3), (4) as well as sub-
sections (5) and (6) of section 10 that all the further conclusions
of the Hon'ble Supreme Court are rerndered. It is then apparent
that by vesting alone, it would not be permissible to hold that
possession follows. Possession would follow only upon recourse to
these sub sections and that is how all the paragraphs, namely
paragraphs 33 to 37 would have to be seen. The requirement of
notice is only under sub-sections (5) and (6) and that is held to be
mandatory.
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178) We do not see how our view in the present case, is in
any way contrary to Hari Ram's decision (supra). We have not
held in the present case that notice need not be issued. The
controversy before us was whether notice issued was served on
the co-owners. On facts, we have found that not only such a
notice was served, but copy thereof was pasted on site. That was
after it was endorsed in the register that the noticees were not
found at the stated address. That is how the competent authority
directed the City Survey Officer to cause a notice to be displayed
at site. It was accordingly displayed. Once we find that the notice
was issued, though that notice stated that the possession would
be taken on 9th March, 2007, the record indicates that it was not
taken on that date, meaning thereby within 30 days, but on 28 th
March, 2007. Therefore, it is not as if before the 30 days period
expired from 27th February, 2007 that the possession was taken.
Secondly, we find that the distinguishing feature in the present
case is that the arguments do not rest on the issuance of notice
and its service alone. The legality and validity of the notice and
the act of taking possession before 30 days' period is also raised.
It is therefore clear that diverse pleas are set out to claim benefit
of the Repeal Act. However, that cannot be extended to the
petitioners in the present case. We are of the firm opinion view
that no assistance can, therefore, be derived from the principles
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laid down in the case of Hari Ram (supra) in the present facts and
circumstances. The legal principles are indeed binding on us, but
on facts their application is a matter with which we are really
concerned. More so, when the petitioners also challenge the
correctness and validity of the possession receipt, panchanama
etc. Once there is a record of the physical possession having been
taken well before 29th November, 2007 (reckoned as the date of
coming into force of the Repeal Act in Maharashtra), then, we do
not see how we can apply the Repeal Act to the present facts.
179) There is one more reason because we have already
found that the petitioners alone do not claim to be in physical
possession, but state that the physical possession of the land
would have to be obtained from the Court Receiver. They claim
that the property is custodia legis and hence notice to receiver
ought to be issued. It is only when notice is issued to him or when
the court's approval is obtained that the receiver can be
dispossessed and not otherwise. Therefore, it is doubtful as to
how the judgment in the case of Hari Ram (supra) and that in the
case of Vinayak Kashinath Shilkar vs. Deputy Collector and
Competent Authority and Ors.20 can have any application.
20 (2012) 4 SCC 718
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180) We cannot also take assistance as desired by
Mr.Chidambaram from other judgments and which are
essentially on the point of an order being non compliant with the
principles of natural justice and therefore nullity. On facts, we do
not see any application of this principle to the present case.
181) We are also supported in our views and conclusions by
the reliance placed by Mr. Samdani on the judgment of the
Hon'ble Supreme Court of India in the case of State of Assam vs.
Bhaskar Jyoti Sarma and Ors.21. This judgment distinguishes
Hari Ram's case (supra) and we reproduce the following
paragraphs of this judgment:-
"6. We have heard the learned counsel for the parties for
a considerable length. The Urban Land (Ceiling and
Regulation) Act, 1999 repealed the principal Act w.e.f. The
date the State adopted the Repeal Act. In terms of a
resolution passed under clause (2) Article 252 of the
Constitution, the Repeal Act was adopted by the State of
Assam w.e.f. 6-8-2003. We may at this stage usefully
extract Sections 2 and 3 of the Repeal Act which have a
direct bearing on the questions that arise for our
determination:
2. Repeal of Act 33 of 1976 . - The Urban Land
(Ceiling and Regulation) Act, 1976 (hereinafter
referred to as the Principal Act), is hereby repealed.
3. Saving. - (1) The repeal of the principal Act
shall not affect -
(a) the vesting of any vacant land under sub-
section (3) of Section 10, possession of which has been
taken over by the State Government or any person
duly authorised by the State Government in this behalf
or by the competent authority;
(b) the validity of any order granting
exemption under sub-section (1) of Section 20 or any
21 (2015) 5 SCC 321
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action taken thereunder, notwithstanding any
judgment of any court to the contrary;
(c) any payment made to the State
Government as a condition for granting exemption
under sub-section (1) of section 20.
(2) Where -
(a) any land is deemed to have vested in the
State Government under sub-section (3) of Section 10
of the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority; and
(b) any amount has been paid by the State
Government with respect to such land.
Then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government."
7. A bare reading of Section 3 (supra) makes it clear that
repeal of the principal Act does not affect the vesting of
any vacant land under sub-section (3) of Section 10,
possession whereof has been taken over by the State
Government or any person duly authorised by the State
Government in that behalf or by the competent authority.
In the case at hand, the appellant claims to have taken
over the possession of the surplus land on 7-12-1991. That
claim is made entirely on the basis of a certificate of
handing over/taking over of possession, relevant portion
whereof reads as under:
"Certificate of handing over/taking over possession
Today on this 7th December, 1991, we took over
possession of 70.32 ares of acquired land as
scheduled below vide order of the Deputy
Commissioner, Kamrup's ULC Case No. 343 dated 2-
3-1991 and as per Assam Gazette Notification dated
1-1-1987 in Case No. ULC343/76.
Schedule of land
* * *
Received possession
(Taken over possession unilaterally)
sd/-
Illegible Given
possession
Designation SK (G)
Designation
Dated 7-12-1991 Dated 7-12-1991
Countersigned
sd/-
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Illegible
Circle Officer
Guwahati Revenue Circle"
8. Relying upon the above document it was strenuously
argued on behalf of the appellant that actual physical
possession was taken over from the erstwhile landowner
as early as in December 1991, no matter relevant official
record does not bear testimony to any notice having been
issued to the landowners in terms of Section 10 sub-section
(5) of the Act. It was argued that so long as actual physical
possession had been taken over by the competent
authority title to the land so taken over stood vested
absolutely in the State Government under Section 10(3)
and could not be claimed back no matter the principal Act
stood repealed after such vesting had taken place. In
support of the contention that actual physical possession
had been taken over by the competent authority, the
appellant places heavy reliance upon the fact that
challenge to the proceedings under the Act mounted in
Writ Petition No. 2568 of 1992 by the purchasers of a part
of the disputed land had failed right up to this Court and
the allotment of a substantial part of the surplus land in
favour of the 8 families affirmed. This, according to the
appellant, proves that possession of the surplus land had
indeed been taken over from the erstwhile owner in terms
of proceedings held on 7-12-1991.
9. It was also contended that Bhabadeb Sarma, the
erstwhile owner, had remained aloof even when he was a
party to the writ petition filed by the purchasers who had
questioned the validity of the order passed by the
competent authority including the allotment of the surplus
land in favour of third parties. It was argued that the
Repeal Act would have no effect whatsoever even when the
taking of possession was without notice to the erstwhile
owner especially when the owner had failed to question
any such takeover at the appropriate stage in appropriate
proceedings. The challenge mounted by the legal heirs of
the deceased erstwhile owner 13 years later was clearly
untenable and an afterthought. Failure of the landowner
to seek redressal against non-compliance with the
statutory requirement of a notice before possession is
taken would constitute abandonment of the right of the
owner under Section 10(5) which cannot be resuscitated
after lapse of such a long period only to take advantage of
the Repeal Act. The question whether actual physical
possession of the disputed land had been taken over is in
any case a seriously disputed question of fact which could
not be adjudicated or determined by the High Court in its
writ jurisdiction.
10. .....
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11. Section 3 of the Repeal Act postulates that vesting of
any vacant land under sub-section (3) of Section 10 is
subject to the condition that possession thereof has been
taken over by the competent authority or by the State
Government or any person duly authorised by the State
Government. The expression "possession" used in Section
3 (supra) has been interpreted to mean "actual physical
possession" of the surplus land and not just possession that
goes with the vesting of excess land in terms of Section
10(3) of the Act.
12. The question, however, is whether actual physical
possession of the land in dispute has been taken over in the
case at hand by the competent authority or by the State
Government or an officer authorised in that behalf by the
State Government.
13. The case of the appellant is that actual physical
possession of the land was taken over on 7-12-1991 no
matter unilaterally and without notice to the erstwhile
landowner. That assertion is stoutly denied by the
respondents giving rise to seriously disputed question of
fact which may not be amenable to a satisfactory
determination by the High Court in exercise of its writ
jurisdiction. But assuming that any such determination is
possible even in proceedings under Article 226 of the
constitution, what needs examination is whether the
failure of the government or the authorised officer or the
competent authority to issue a notice to the landowners in
terms of Section 10(5) would by itself mean that such
dispossession is no dispossession in the eye of the law and
hence insufficient to attract Section 3 of the Repeal Act.
Our answer to that question is in the negative.
14. We say so because in the ordinary course actual
physical possession can be taken from the person in
occupation only after notice under Section 10(5) is issued
to him to surrender such possession to the State
Government, or the authorised officer or the competent
authority. There is enough good sense in that procedure
inasmuch as the need for using force to dispossess a person
in possession should ordinarily arise only if the person
concerned refuses to cooperate and surrender or deliver
possession of the lands in question. That is the rationale
behind Sections 10(5) and 10(6) of the Act. But what
would be the position if for any reason the competent
authority or the government or the authorised officer
resorts to forcible dispossession of the erstwhile owner
even without exploring the possibility of a voluntary
surrender or delivery of such possession on demand?
Could such use of force vitiate the dispossession itself or
would it only amount to an irregularity that would give rise
to a cause of action for the aggrieved owner or the person
in possession to seek restoration only to be dispossessed
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again after issuing a notice to him? It is this aspect that
has to an extent bothered us.
15. The High Court has held that the alleged dispossession
was not preceded by any notice under Section 10(5) of the
Act. Assuming that to be the case all that it would mean is
that on 7-12-1991 when the erstwhile owner was
dispossessed from the land in question, he could have
made a grievance based on Section 10(5) and even sought
restoration of possession to him no matter he would upon
such restoration once again be liable to be evicted under
Sections 10(5) and 10(6) of the Act upon his failure to
deliver or surrender such possession. In reality therefore
unless there was something that was inherently wrong so
as to affect the very process of taking over such as the
identity of the land or the boundaries thereof or any other
circumstance of a similar nature going to the root of the
matter hence requiring an adjudication, a person who had
lost his land by reason of the same being declared surplus
under Section 10(3) would not consider it worthwhile to
agitate the violation of Section 10(5) for he can well
understand that even when the Court may uphold his
contention that the procedure ought to be followed as
prescribed, it may still be-not enough for him to retain the
land for the authorities could the very next day dispossess
him from the same by simply serving a notice under
Section 10(5). It would, in that view, be an academic
exercise for any owner or person in possession to find fault
with his dispossession on the ground that no notice under
Section 10(5) had been served upon him.
16. The issue can be viewed from another angle also.
Assuming that a person in possession could make a
grievance, no matter without much gain in the ultimate
analysis, the question is whether such grievance could be
made long after the alleged violation of Section 10(5). If
actual physical possession was taken over from the
erstwhile landowner on 7-12-1991 as is alleged in the
present case any grievance based on Section 10(5) ought
to have been made within a reasonable time of such
dispossession. If the owner did not do so, forcible taking
over of possession would acquire legitimacy by sheer lapse
of time. In any such situation the owner or the person in
possession must be deemed to have waived his right under
Section 10(5) of the Act. Any other view would, in our
opinion, give a licence to a litigant to make a grievance not
because he has suffered any real prejudice that needs to be
redressed but only because the fortuitous circumstance of
a Repeal Act tempted him to raise the issue regarding his
dispossession being in violation of the prescribed
procedure.
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17. Reliance was placed by the respondents upon the
decision of this Court in Hari Ram case ((2013) 4 SCC
280). That decision does not, in our view, lend much
assistance to the respondents. We say so, because this
Court was in Hari Ram case considering whether the word
"may" appearing in Section 10(5) gave to the competent
authority the discretion to issue or not to issue a notice
before taking physical possession of the land in question
under Section 10(6). The question whether breach of
Section 10(5) and possible dispossession without notice
would vitiate the act of dispossession itself or render it non
est in the eye of the law did not fall for consideration in
that case. In our opinion, what Section 10(5) prescribes is
an ordinary and logical course of action that ought to be
followed before the authorities decided to use force to
dispossess the occupant under Section 10(6). In the case
at hand if the appellant's version regarding dispossession
of the erstwhile owner in December 1991 is correct, the
fact that such dispossession was without a notice under
Section 10(5) will be of no consequence and would not
vitiate or obliterate the act of taking possession for the
purposes of Section 3 of the Repeal Act. That is because
Bhabadeb Sarma, erstwhile owner, had not made any
grievance based on breach of Section 10(5) at any stage
during his lifetime implying thereby that he had waived his
right to do so.
18. .....
19. In support of the contention that the respondents are
even today in actual physical possession of the land in
question reliance is placed upon certain electricity bills
and bills paid for the telephone connection that stood in
the name of one Mr Sanatan Baishya. It was contended
that said Mr Sanatan Baishya was none other than the
caretaker of the property of the respondents. There is,
however, nothing on record to substantiate that assertion.
The telephone bills and electricity bills also relate to the
period from 2001 onwards only. There is nothing on
record before us nor was anything placed before the High
Court to suggest that between 7-12-1991 till the date the
land in question was allowed to GMDA in December 2003
the owner or his legal heirs after his demise had continued
to be in possession. All that we have is rival claims of the
parties based on affidavits in support thereof. We
repeatedly asked the learned counsel for the parties
whether they can, upon remand on the analogy of the
decision in Gyanaba Dilavarsinh Jadega (2013) 11 SCC
486, adduce any documentary evidence that would enable
the High Court to record a finding in regard to actual
possession. They were unable to point out or refer to any
such evidence. That being so the question whether actual
physical possession was taken over remains a seriously
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disputed question of fact which is not amenable to a
satisfactory determination by the High Court in
proceedings under Article 226 of the constitution no
matter the High Court may in its discretion in certain
situations enter upon such determination. Remand to the
High Court to have a finding on the question of
dispossession, therefore, does not appear to us to be a
viable solution."
182) We are of the opinion that the controversy before us
stands fully covered by this judgment and it binds us.
183) We need not make reference to all the decisions cited
by the counsel for we have found that the sheet anchor of the
petitioners contentions are the judgments on the point of physical
possession and applicability of the Repeal Act. We found that the
latest judgment of the Hon'ble Supreme Court would enable us to
arrive at the above conclusions and we have no hesitation in
observing that reliance on other judgments by the petitioners is
entirely misplaced.
184) As a result of the above discussion and having found
that the competent authority and the State did not make any
deliberate or intentional attempt of disturbing or interfering with
the physical possession of the Court Receiver and the version of
the petitioners as also the supporting respondents, with regard
thereto being highly questionable and doubtful, it would not be
proper to uphold the order of the learned Single Judge initiating
contempt notice against the then competent authority and
officials of the State. We have found from their affidavits filed in
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the proceedings before the learned Single Judge and before us
that there is no deliberate or intentional act on their part, they
were unaware of the pendency of the legal proceedings, in which
the Court Receiver was appointed, the land being vacant, the
extent of the Court Receiver's physical possession so also the
version of the petitioners that 10 boards were affixed on the site
by the Court Receiver being not corroborated by the record, we
allow the appeal and set aside the order of the Single Judge.
These conclusions are in addition to the reasons assigned by us
while dismissing the petitioners' writ petition. Hence, the
following order:-
(i) Rule in Writ Petition No. 1468 of 2009 is
discharged.
(ii) Appeal No. 411 of 2010 is allowed and the order of
the learned Single Judge impugned therein is quashed
and set aside.
(iii) In the light of the disposal of the writ petition and
the appeal, the notice of motion and the show cause
notice does not survive and stand disposed of as such.
(iv) The original record shall be returned to the
concerned Department of State through the
Government Pleader.
185) At this stage, Mr. Sharan Jagtiani learned counsel
appearing for the petitioners and the supporting respondents
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prays for continuation of the order of status quo and which,
according to him, has been passed way back in the year 2010. He
prays that the same be continued for a period of two months so as
to enable the petitioners to consider their position and challenge
this judgment, if necessary, in higher court.
186) The request is opposed by Ms. Shastri learned
Additional Government Pleader appearing for the State.
187) We have already held in the foregoing paragraphs that
petitioner nos 1 and 2 have no right, title and interest in the
property after the same was dealt with by them in favour of
petitioner no. 3. Equally, those supporting them have inducted
builders and developers on the scene. The petition is really
prosecuted by builders and developers, who are not surplus
vacant land holders or owners as contemplated by the Principal
Act. In the circumstances and finding that the possession of the
land has been taken already, it has been dealt with further that
we are not inclined to continue the order of status quo. The
request of Mr. Jagtiani is refused.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
