Rameshrao S/O Nanakram Khetal And ... vs The State Of Maharashtra Thr. ...
2016 Latest Caselaw 7484 Bom

    WP 4129/16                                         1                            Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.




                                                                                      
                         WRIT PETITION NO. 4129/2016




                                                             
    1.    Rameshrao S/o Nanakram Khetal,
          Aged about 62 years, Occ-Business.

    2.    Vishal S/o Rameshrao Khetal,
          Aged about 35 years, Occ-Business.




                                                            
    3.    Abhishek S/o Rameshrao Khetal,
          Aged about 33 years, Occ-Business.

    4.    Atul S/o Rameshrao Khetal,
          Aged about 33 years, Occ-Business.




                                               
    All R/o Pandhurna, Tahsil-Pandhurna,
                              
    District-Chhindwada (Madhya Pradesh).

                                       .....VERSUS.....
                                                                            PETITIONERS
                             
    1.    The State of Maharashtra,
          through it Secretary,
          Urban Development Department,
          Mantralaya, Mumbai - 32.
    2.    The Additional Collector &
      

          Competent Authority (ULC),
          Collectorate, Civil Lines, Nagpur.
   



    3.    The Tahsildar,
          Tahsil Office, Nagpur (Rural),
          Civil Lines, Nagpur.                                                 RESPONDENTS





                           Shri P.R. Puri, counsel for the petitioners.
              Mrs. G.R. Tiwari, Assistant Government Pleader for the respondents.


                                        CORAM :SMT. VASANTI A  NAIK AND
                                                     MRS. SWAPNA JOSHI, JJ.   

DATE : 20 TH DECEMBER, 2016.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

RULE. Rule made returnable forthwith. The petition is heard

finally at the stage of admission with the consent of the learned counsel

for the parties.

WP 4129/16 2 Judgment

2. By this writ petition, the petitioners seek a declaration that the

proceedings in respect of the land of the petitioners under the Urban Land

(Ceiling and Regulation) Act, 1976 have abated in view of the Urban

Land (Ceiling and Regulation) Repeal Act, 1999.

3. The land owned by Gajanan Bobde and others was declared

as surplus in the proceedings initiated under the Urban Land (Ceiling and

Regulation) Act, 1976. The petitioners claim to have purchased the land

from Nilgriv Cooperative Housing Society, to whom Gajanan Bobde had

sold a part of the land. Since Nilgriv Cooperative Housing Society and

the petitioners are in possession of the land despite the initiation of the

proceedings under the Act of 1976, the petitioners have sought a

declaration that the proceedings under the Act of 1976 have abated in

view of the provisions of the Urban Land (Ceiling and Regulation) Repeal

Act, 1999.

4. According to the petitioners, 0.37 R of land, i.e. 3700 square

meters of the surplus land was sold by Gajanan Bobde to Nilgriv

Cooperative Housing Society and the petitioners have purchased five

plots, out of the said land by registered sale-deeds. The plots are mutated

in the name of the petitioners and the petitioners are paying the

municipal taxes on the same. According to the petitioners, though the

respondents claim to have issued the notice under Section 10(5) of the

WP 4129/16 3 Judgment

Act of 1976 on Gajanan Bobde, the same was not served on him.

According to the petitioners, the actual possession of the land was never

secured by the respondents after the declaration of the land as surplus.

5. The learned Assistant Government Pleader has tendered an

affidavit-in-reply of the respondent no.2-Collector and the Competent

Authority under the Act of 1976 in the Court, today. The same is

accepted on record. It is stated that the original owner was Gajanan

Bobde and the petitioners could not have purchased the land in view of

the pendency of the proceedings under the Act of 1976. It is submitted

that a notice under Section 10(5) of the Act was issued to the original

owner. It is stated that the name of the State Government is recorded in

the revenue records in respect of the surplus land. It is, however, fairly

admitted that there is nothing in the affidavit-in-reply filed on behalf of

the respondent no.2 to point out that actual physical possession was

taken by the State Government or the respondent no.2 before the Urban

Land (Ceiling and Regulation) Repeal Act, 1999 came into force, on

29.11.2007. It is admitted that there is no possession receipt in the

record of the proceedings initiated in respect of the land of Gajanan

Bobde. It is fairly admitted that there is no material whatsoever, to point

out that actual physical possession of the land was taken by the

respondent no.2.

WP 4129/16 4 Judgment

6. In the circumstances of the case, the relief sought by the

petitioners needs to be granted. Though the respondent no.2 had issued

a notice under Section 10(5) of the Act to Gajanan Bobde, there is no

material to show that the notice was actually served on Gajanan Bobde or

his family members. There is nothing on record to substantiate that the

actual possession of the land was secured by the respondent no.2 from

the owners of the land before the coming into force of the Repeal Act of

1999. Merely mutating the name of the State Government in the revenue

records would not be enough and it would be necessary for the

respondents to point out that the actual possession of the land was

secured, so as to prevent the operation of the provisions of Section 3 of

the Repeal Act. Since the possession of the land remained with Gajanan

Bobde and the petitioners, and the State Government has not secured the

same, it would be necessary to declare that the proceedings in respect of

the land of the petitioners have abated in view of the provisions of the

Repeal Act of 1999. While holding so, it would be necessary to reject the

objection raised on behalf of the respondents that the declaration as

sought by the petitioners may not be granted as the petitioners were not

entitled to purchase the land that was declared excess and in respect of

which the name of the State Government was mutated in the revenue

records. Merely because the land stood transferred, it cannot be said that

the provisions of the Repeal Act of 1999 would not operate and the

petitioners would not be entitled to the relief.

WP 4129/16 5 Judgment

7. Hence, in the circumstances of the case, the writ petition is

allowed. It is hereby declared that the proceedings in respect of the land

of the petitioners have abated in view of Section 3 of the Urban Land

(Ceiling and Regulation) Repeal Act, 1999. The respondents are directed

to delete the name of the State Government from the revenue records as

early as possible.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE
                               ig                          JUDGE
                             
    APTE