Bombay High Court
Mustafa Khan S/O Sayum Khan And ... vs State Of Maharashtra Thr. ... on 8 December, 2016
Bench: V.A. Naik
WP 3520.16.[J]odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3520 OF 2016
1] Mustafa Khan s/o Kayum Khan,
Aged about 53 years.
2] Haji Sultan Khan s/o Kayum Khan
(since died) being represented by his
LR's.
a] Firoz Khan s/o Haji Sultan Khan
b] Parvesh Khan s/o Haji Sultan Khan
3]
c] Alia d/o Haji Sultan Khan
Mustaq Khan s/o Kayum Khan,
Aged about 51 years.
4] Arefa Khatun M. Latif,
Aged about 57 years.
5] Abeda Khatun Tatwaf Kazi,
Aged about 48 years.
6] Afifa Khatun s/o Kayum Khan,
Aged about 44 years.
7] Akila Khatun Mohd. Shakil (since died)
being represented by petitioner No.1 to 6
above. All are Agriculturist.
All R/o. Kadar Zenda Chowk, Kamptee,
Tah. Kamptee, District-Nagpur. .. Petitioners
.. Versus ..
1] State of Maharashtra, through Secretary
Housing and Special Assistance
Department, Mantralaya, Mumbai-32.
2] The Additional Collector and Competent
Authority (ULCRA), Nagpur.
3] The Tahsildar, Tahsil Office,
Kamptee.
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WP 3520.16.[J]odt 2
4] Nagpur Housing and Area Development
Authority (MHADA), through its Chief
Officer, Near MLA hostel, Civil Lines,
Nagpur.
5] The Collector, Nagpur,
Civil Lines, Nagpur. .. Respondents
..........
Shri C.V. Kale, Advocate for the petitioners,
Shri A.A. Madiwale, A.G.P. for respondent nos.1 to 3 and 5,
Shri H.N. Verma, Advocate for respondent no.4.
..........
ig CORAM : SMT. VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATED : DECEMBER 08, 2016.
ORAL JUDGMENT : (Per : SMT. VASANTI A NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned counsel for the parties.
By this writ petition, in effect, the petitioners seek a declaration
that the proceedings initiated under the provisions of the Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as 'Act' for the sake of
brevity) have abated in view of the Repeal Act of 1999 and the respondent
nos.1 to 3 and 5 should delete the endorsement in regard to the acquisition of
the land from the 7/12 extract.
The original owner of the land had filed a return under Section
6(1) of the Act. The order under Section 8(1) of the Act was passed and
50792.68 sq. mtrs of land were declared as surplus. The notification under
Section 10(3) of the Act was issued and though there was a direction for
issuance of notice under Section 10 (5) of the Act, the notice under Section
10(5) was never served on the petitioners. According to the petitioners, the
possession of the land is not yet secured by the State Government and the
same is still lies with the petitioners, who are the legal heirs of the original
land owner. According to the petitioners, since the petitioners are still in
possession of the land and the possession of the land is not delivered to the
respondent-authorities, the proceedings under the Urban Land (Ceiling and
Regulation) Act, 1976 are deemed to have been abated in view of the
provisions of Section 3 of the Repeal Act.
The respondent no.2-Additional Collector and Competent
Authority under the Urban Land (Ceiling and Regulation) Act has filed an
affidavit-in-reply. It is stated in the reply that the notice under Section 10(5)
of the Act was issued to the petitioners for delivering the possession of the land
to the Tahsildar, however, there is nothing in the reply to point out that the
notice under Section 10(5) of the Act was actually served on the petitioners.
There is also nothing in the reply to demonstrate that the possession of the
surplus land was secured by the respondent no.2 on a particular day or for that
matter at any point of time.
The learned Assistant Government Pleader has brought the original
record and proceedings in the Court today and the original record and
proceedings does not bear any possession receipt. There is nothing in the
original record and proceedings to point out that actual possession of the land
was secured from the petitioners after complying with the provisions of Section
10 of the Act.
We do not find anything on record to show that the petitioners
have lost the possession of the land and the respondents have secured the
same. If that be so, it would be necessary to declare that the proceedings in
respect of the concerned land have abated in view of the provisions of Section
3 of the Repeal Act, 1999 which came into force on 29.11.2007. The
declaration, as sought by the petitioners, needs to be granted in the
circumstances of the case.
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 Act have abated in view of Section 3 of the Repeal Act, 1999. The
respondents are, therefore, directed to remove the entry/endorsement
pertaining to the proceedings under the Act, in respect of the concerned land,
at the earliest.
Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE JUDGE
Gulande, PA
