Bombay High Court
Natthu S/O. Bajirao Dhone vs State Of Maharashtra Thr. ... on 2 August, 2016
Bench: V.A. Naik
WP2267.16[J].odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2267 OF 2016
Natthu s/o Bajirao Dhone,
Age 74 years, Occupation-Agriculturist,
R/o. Village Lava, Tahsil and District-
Nagpur. .. Petitioner
.. Versus ..
1] State of Maharashtra,
Through Principal Secretary,
Department of Urban Development
and ULC, Mantralaya,
Mumbai-400 032.
2] Collector, Nagpur,
Collectorate Compound,
Civil Lines, Nagpur-440 001.
3] Additional Collector and
Competent Authority,
Urban Land Ceiling,
Collectorate, Civil Lines,
Nagpur-440 001.
4] Tahsildar, Nagpur (Rural),
Tahsil office, Civil Lines,
Nagpur-440 001. .. Respondents
..........
Shri S.M. Puranik, counsel for the petitioner,
Shri J.Y. Ghurde, A.G.P. for the respondents.
..........
CORAM : SMT. VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATED : AUGUST 02, 2016.
ORAL JUDGMENT : (Per : SMT. VASANTI A. NAIK, J.)
Rule. Rule is made returnable forthwith. The petition is heard
finally with the consent of the learned counsel for the parties.
By this writ petition, the petitioner challenges the notification
under Section 10 (3), dated 1.11.2007 and notice, dated 7.11.2007 under
Section 10 (5) of the Urban Land (Ceiling and Regulation) Act, 1976. The
petitioner seeks a declaration that the proceedings initiated against the
petitioner under the Urban Land (Ceiling and Regulation) Act, 1976 have
abated in view of the provisions of Section 4 of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999.
The petitioner and his brother Ramdas had filed separate
declaration under Section 6 (1) of the Urban Land (Ceiling and Regulation)
Act before the Competent Authority, Urban Land Ceiling, Nagpur. The
proceedings were registered and an inquiry under section 8 of the Act was
conducted. A common order was passed under Section 8(4) of the Act and
6715.02 sq.mtrs land was declared as surplus vacant land. It is the case of the
petitioner that Ramdas expired on 22.9.2006 and before his death, Ramdas
had relinquished his share in Survey No.79 (New No.276), that was the subject
matter of Urban Land Ceiling proceeding by the relinquishment-deed, dated
25.2.2000 in favour of the petitioner. According to the petitioner, Section
10(1) notification was issued on 3.8.1989, Section 10(3) notification was
issued on 1.11.2007 and the Section 10(5), declaration was made on
7.11.2007. It is the case of the petitioner that the notice of possession under
section 10(5) of the Act was not served on the petitioner as it was not issued in
the name of the petitioner at all. It is stated that despite the issuance of the
notification under sections 10(3) and 10 (5) of the Act, the possession of the
surplus land is not secured by the State Government and the petitioner is still
in cultivating possession of the said land.
Shri Puranik, the learned counsel for the petitioner submitted that
in view of the provisions of Section 3 of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999, the proceedings in respect of the land of the
petitioner and his brother have abated as the State Government has not
secured the possession of the land. It is stated that in the instant case though a
show is made by the respondents that the possession of the land is secured on
12.11.2007, the possession of the land was never secured on the said date or
even later. No one from the petitioners side has signed the possession receipt
and the space for the signature is blank. It is stated that the possession receipt
clearly mentions that when the notice was tried to be served on the petitioner
and Ramdas on 12.11.2007, they were not found on the spot. It is stated that
it is clear from the endorsement made by the Tahsildar on 12.11.2007 that the
notice under Section 12(5) was never served on the petitioner.
Shri Ghurde, the learned Assistant Government Pleader appearing
on behalf of the respondents, by making a reference to the affidavit-in-reply
filed on behalf of the respondent no.3, submitted that a notification was issued
under Section 10(1) in the year 1989 and a declaration under Section 10(3)
was published on 1.11.2007 in the gazette notification. It is, however, fairly
admitted that it is not mentioned in the affidavit-in-reply as to when and in
what manner the possession of the land was secured from the petitioner.
On hearing the learned counsel for the parties and on a perusal of
the documents annexed to the writ petition, we find that the proceedings
initiated under the Urban Land (Ceiling and Regulation) Act, 1976 have
abated in view of the provisions of the Urban Land (Ceiling and Regulation)
Repeal Act, 1999, specially the provisions of Section 3 (1)(a) of the Urban
Land (Ceiling and Regulation) Repeal Act, 1999. We do not find anything on
record, much less a categorical statement in the affidavit-in-reply filed on
behalf of the respondent no.3 that the actual possession of the land was legally
secured by the Competent Authority before coming into force of the Act of
1999 on 29.11.2007. We find that when the Act of 1999 was about to come
into force on 29.11.2007, a show is made by the respondents of having
secured the possession of the land, so as to ensure that the land vests in the
State Government under the Act of 1976. We do not find that the notice u/s
10(5) of the Act, 1976 is served on the petitioner or any other person in the
family of Ramdas. The possession receipt also does not bear the signature of
the petitioner or any other member in the family of Ramdas. The possession
receipt is only signed by the Tahsildar and there is an endorsement on the
possession receipt that when the notice under Section 10(5) of the Act was
sought to be served on the party, the party was not to be found on the spot. It
is apparent from the endorsement on the possession receipt that the notice
under Section 10(5) of the Act, 1976 was not served on the petitioner or any
other member in the family of Ramdas, as he had expired in the year 2006 and
only a show was made, of securing the possession of the land. We find that
the possession of the land of the petitioner was never secured by the State
Government at all. In view of the provision of Section 3 of Urban Land
(Ceiling and Regulation) Repeal Act, 1999, the declaration, as sought by the
petitioner, needs to be granted.
Hence, for the aforesaid reasons, the writ petition is allowed.
We hereby quash and set aside the notification, dated 1.11.2007 and the
notice dated 7.11.2007 under Sections 10(3) and 10(5) of the Urban Land
(Ceiling and Regulation) Act, 1976 respectively. We hereby declare that the
proceedings in ULC Case Nos.2521/1976 and 2523/1976 have abated in view
of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
The respondents are directed to make appropriate changes in the mutation
record in pursuance of the aforesaid order.
Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE JUDGE
Gulande
C E R T I F I C A T E
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