Bombay High Court
Shri Shankar S/O Narayan Gayali vs State Of Maharashtra Through ... on 14 June, 2016
Bench: B.P. Dharmadhikari
wp2146.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2146 OF 2015
Shri Shankar s/o Narayan Gayali,
aged 43 years, occupation -
Agriculturist, r/o Davlameti,
Nagpur, Tah. & Dist. - Nagpur. ... PETITIONER
Versus
1. The State of Maharashtra
through Secretary, Housing and
Special Assistance Department,
Mantralaya, Mumbai 400 032.
2. The Additional Collector and
Competent Authority (ULCRA),
Nagpur.
3. The Tahsildar, Tahsil Office,
Nagpur (Rural), Civil Lines, Nagpur.
4. Nagpur Housing and Area Development
Authority (MHADA), through its
Chief Officer, Near MLA Hostel,
Civil Lines, Nagpur.
5. The Collector,
Civil Lines, Nagpur. ... RESPONDENTS
Shri C.V. Kale, Advocate for the petitioner.
Shri B.M. Lonare, AGP for respondent Nos. 1 to 3 & 5.
Shri H.N. Verma, Advocate for respondent No. 4.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JUNE 14, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Kale, learned counsel for the petitioner,
Shri Lonare, learned AGP for respondent Nos. 1 to 3 & 5 and
Shri Verma, learned counsel for respondent No. 4.
2. In order to demonstrate possession of the petitioner,
Shri Kale, learned counsel, sought leave to tender certified copy
of 7/12 extract of subject land received by him on 13.06.2016.
The original certified copy of revenue record is taken on record
and marked as Exh. 'X'. Its copy is served on the learned AGP
and Shri Verma, learned counsel for the respective respondents
right now and they are opposing the production of it.
3. The submission of Shri Kale, learned counsel is, the
possession was never delivered voluntarily by the petitioner
after declaration under Section 10(3) of the Urban Land
(Ceiling and Regulation) Act, 1976. In this situation, if the
possession was to be taken forcibly, a month's notice ought to
have been issued. Here, the impugned notice is dated
06.10.1990 and date scheduled for handing over of the
possession is dated 30.10.1990. The notice is, therefore, bad
and unsustainable.
4. Without prejudice to the contentions that the
petitioner even today continues in physical possession, he
invites attention to the case as pleaded in writ petition.
According to him, if on the part of land, Respondent No. 4 -
MHADA has constructed tenements, that does not result in
wiping out the legal right of the petitioner. The possession
was never taken in accordance with law, hence, allotment by
the State Government in favour of Respondent No. 4, of alleged
vacant land, is itself bad and, therefore, action of Respondent
No. 4 in constructing the tenements over it or then handing
over possession of those tenements to the occupants thereof is
also not binding on the petitioner.
5. Shri Kale, learned counsel submits that as per
revenue records placed by him before this Court, the tenements
have come up on 0.40 Hectare of land only and thus rest of the
portion is still lying vacant and it is in possession of the
petitioner.
6. Shri Lonare, learned AGP as also Shri Verma,
learned counsel for the respondents dispute this. They point
out that after taking possession on 30.10.1990, the land has
been placed in possession of Respondent No. 4. Respondent
No. 4 thereafter submitted a plan for sanction and after
sanction, has constructed the tenements which are allotted to
various tenants vide letters of allotment dated 15.02.1996,
28.02.1996 etc. It is further submitted that certain plots have
also been developed as open plots and came to be allotted as
open plots.
7. The respective counsel submit that MHADA has also
paid compensation for said land and as such the petitioner
cannot after about 25 years, question the allotment of land to
Respondent No. 4. Shri Verma, learned counsel adds that on
rest of the land, even today, activity of construction is going on.
8. Shri Kale, learned counsel, in reply arguments,
submits that the fact of payment of compensation by
Respondent No. 4 is not accepted by the petitioner. He submits
that the petitioner has not received any compensation. He
invites attention to assertion in paragraph 15 of the petition to
show that neither the petitioner nor his father (deceased) had
received any compensation from the Collector, Nagpur.
9. 7/12 extracts produced by the petitioner itself
shows that on subject land, MHADA has constructed certain
tenements. The allotment letters issued in February 1996 are
not in dispute. Thus, construction was completed by February
1996. In this situation, in present facts, it cannot be accepted
that only part of subject land was placed in possession of
MHADA. It appears that entire land declared as surplus was
handed over to Respondent No. 4 by the State Government. In
fact, the allotment in favour of Respondent No. 4 is decided on
02.07.1990 itself i.e. before taking possession.
10. In this situation, the contention of the petitioner
that the petitioner continues in possession, cannot be accepted
in this jurisdiction. Respondent Nos. 1, 2, 3, & 5 have not
placed on record anything to show that the compensation
deposited with it by Respondent No. 4 has been made over to
the petitioner or his deceased father. In this situation, we find
that several disputed questions arise. However, as the excess
land (surplus) is already in possession of Respondent No. 4, we
are not inclined to intervene in writ jurisdiction.
11. With liberty to the petitioner to file appropriate
proceedings before the forum in which all these disputed
questions can be looked into, we dispose of the present writ
petition. However, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
