Bombay High Court
Smt. Kamla Wd/O Sudam Bobde And ... vs State Of Maharashtra Thr. ... on 10 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1806 OF 2016
PETITIONER:- 1. Smt. Kamla wd/o Sudam Bobde, Ageda bout
65 years, Occu.: Household, R/o House
No.1601, Near Datta Mandar,
Chinchbhawan, Wardha Road, Nagpur-25.
2. Shri Parneshwar s/o Sudam Bobde, Aged
about 30 years, Occu.: Agriculturist, R/o
ig House No.1601, Near Datta Mandar,
Chinchbhawan, Wardha Road, Nagpur-25.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through its
Competent Authority and Additional/Upper
Collector (U.L.C.), District Collectorate, Civil
Lines, Nagpur.
2. State of Maharashtra, Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-400032.
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Mr.Bagga, counsel h/f Mr. Amit Khare, counsel for the petitioners.
Mr.V.P.Maldhure, Asstt.Govt.Pleader for the respondents.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI, JJ.
DATED : 10.08.2016
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally with the consent of the learned counsel for the parties.
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2. By this petition, the petitioners seek a declaration that the
proceedings under the Urban Land (Ceiling and Regulation) Act, 1976
in respect of the surplus land of the petitioner have abated, in view of
the provisions of Section 3 of the Urban Land (Ceiling and Regulation)
Repeal Act, 1999.
3. The petitioners had filed the return under the provisions of the
Urban Land (Ceiling and Regulation) Act, 1976. The Notification was
issued by the State Government under Section 10 (3) of the Act of
1976, on 14.09.2006. It is the case of the petitioners, that the notice
under Section 10(5) of the Act was not served on the petitioners and
the respondents have not secured the possession of the excess land from
the petitioners. According to the petitioners, since the possession of the
excess land was not secured by the respondents, the proceedings under
the Act of 1976 have abated, in view of the provisions of Section 3 of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Since the
petitioners still claim to be in possession of the surplus land, the
petitioners have sought a declaration that the proceedings under the
Urban Land (Ceiling and Regulation) Act, 1976 have abated, in view of
the provisions of Section 3 of the Act of 1999.
4. The respondent No.1 has filed an affidavit-in-reply. It is stated
that a scheme was framed under Section 20 (2) of the Act of 1976 and
the same was cancelled by the order of the Government, dated
22.06.2006. It is stated that the Notification under Section 10(3) was
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again published on 14.09.2006 and a notice under Section 10(5) of the
Act was issued to the petitioners. It is stated that since the Notification
under Section 10(3) was published, the land is deemed to have been
vested in the Government. It is, however, fairly admitted on behalf of
the respondents that there is nothing in the reply to show that the
possession of the land was secured by the State Government from the
petitioners and the notice, that was issued to the petitioners under
Section 10(5) of the Act of 1976 was actually served on them. It is
admitted that there is no possession receipt, showing the delivery of
possession of the surplus land by the petitioners in favour of the State
Government through the Tahsildar or any other authority.
5. On hearing the learned counsel for the parties and on a
perusal of the affidavit-in-reply, filed on behalf of the respondent No.1,
it appears that the declaration as sought by the petitioners needs to be
granted. There is nothing on record to show that the notice under
Section 10(5) of the Act of 1976 was indeed served on the petitioners,
who are the legal heirs of the original landholder. A reference is made
only to the issuance of notice to the petitioners under Section 10(5) of
the Act of 1976 in the reply, but there is no assertion in the reply that
the notice under Section 10(5) was indeed served on the petitioners.
Also, the clear averments in the writ petition that the possession of the
property is still with the petitioners and the respondents have not
secured the same, are not denied in the affidavit-in-reply, filed on
behalf of the respondent No.1. It is thus, apparent that though the
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Notification under Section 10(3) of the Act was issued, the notice under
Section 10(5) of the Act of 1976 was not served on the petitioners and
the possession of the surplus land was never secured by the
respondents. Since the possession of the surplus land was not secured
by the respondents, the proceedings under the Act of 1976 have abated,
in view of the provisions of Section 3 of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999. A declaration, as sought by the
petitioners needs to be granted, in the circumstances of the case.
6.
Hence, for the reasons aforesaid, the writ petition is allowed.
It is hereby declared that the proceedings in respect of the land of the
petitioners under the provisions of the Urban Land (Ceiling and
Regulation) Act, 1976 have abated, in view of the provisions of Section
3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
Consequently, the respondents are directed to delete the name of the
State Government from the 7/12 Extract at the earliest and record
appropriate entries. Rule is made absolute in the aforesaid terms with
no order as to costs.
JUDGE JUDGE
KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 11/08/2016
P.A.to Hon'ble Judge
