Bombay High Court
Ramesh S/O Natthuji Potbhare vs State Of Maharashtra Through ... on 1 March, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.3486 OF 2015
PETITIONER: Ramesh S/o Natthuji Potbhare, Aged
about 50 years, Occupation
Agriculturist, R/o Sdantaji Nagar,
Kandri (Kanhan), Tahsil Parseoni,
Dist. Nagpur.
ig -VERSUS-
RESPONDENTS: 1. State of Maharashtra Through
Principal Secretary, Department of
Urban Development and ULC,
Mantralaya, Mumbai-400 032.
2. Collector, Collectorate, Civil Lines,
Nagpur-440 001.
3. Additional Collector and Competent
Authority, ULC, Collectorate, Civil
Lines, Nagpur-440 001.
4. Tahsildar, Parseoni, Tahsil Office, At
Post & Tahsil Parseoni, Dist. Nagpur.
Shri S. M. Puranik, Advocate for the petitioner.
Shri N. S. Rao, Assistant Government Pleader for respondent Nos.1 to 4.
CORAM: SMT. VASANTI A. NAIK
AND A.S. CHANDURKAR JJ.
DATED
: 01 ST
MARCH, 2016.
ORAL JUDGMENT : (Per Smt. Vasanti A. Naik, J)
Rule. Rule made returnable forthwith. The petition is
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heard finally with the consent of the learned Counsel for the parties.
By this petition, the petitioner challenges the notification
issued by the respondent authorities under Section 10(3) of the Urban
Land (Ceiling & Regulation) Act, 1976 as also the notice under Section
10(5) of the Act dated 5-11-2007 being invalid and contrary to the
provisions of the Urban Land (Ceiling and Regulation) Act, 1976.
The petitioner filed the return under the provisions of the
Act of 1976 and a notification under Section 10(3) of the Act was
published on 1-11-2007, declaring the excess land. It is the case of the
petitioner that the notice under Section 10(5) of the Act of 1976 was
never served on the petitioner and the petitioner became aware that a
notice dated 5-11-2007 was issued by the respondent authorities under
Section 10(5) of the Act of 1976. It is stated that a show has been made
by the respondent authorities of securing the possession of the excess
land on 14-11-2007 without securing the actual possession of the excess
land from the petitioner. According to the petitioner, the notice under
Section 10(5) of the Act was never served on the petitioner and the
petitioner is still in possession of the excess land. The petitioner has
claimed that 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.
Shri Puranik, the learned Counsel for the petitioner
submitted that at no point of time the respondent authorities have
secured the possession of the excess land from the petitioner and the
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petitioner is in possession of the same. It is submitted that when the
Repeal Act of 1999 was about to come into force, the respondent
authorities tried to make a show of having secured the possession of the
land by making entries in the name of the State Government in the
revenue record. It is stated that the possession of the excess land could
not have been taken by the respondent authorities from the petitioner on
14-11-2007 on the basis of the notice dated 5-11-2007. It is stated that
firstly the notice is not served on the petitioner and even if it is assumed
that it was served, the possession could not have been secured on 14-11-
2007 without the consent of the petitioner. According to the petitioner, a
show has been made by the respondent authorities of securing the
possession of the excess land when the land is still in the possession of
the petitioner, as the Repeal Act 1999 was about to come into force
immediately after 14-11-2007. In the circumstances of the case, the
learned Counsel states that the proceedings under the Act of 1976 have
abated.
Shri Rao, the learned Assistant Government Pleader
appearing on behalf of the respondent fairly states on a perusal of the
original record that there is no possession receipt to show that the
possession of the excess land was secured by the respondent authorities
from the petitioner on 14-11-2007. It is stated that the possession of the
land seems to have been secured on 14-11-2007 and the name of the
State Government is recorded in the revenue record after the said date.
It is stated that an appropriate order may be passed in the circumstances
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of the case.
On hearing the learned Counsel for the parties and on a
perusal of the Repeal Act of 1999, it appears that the petitioner is
entitled to be relief claimed. It is necessary to declare that the
proceedings under the Act of 1976 have abated in respect of the land of
the petitioner in view of the provisions of Section 3 of the Repeal Act of
1999. We have perused the Section 10(5) notice, dated 15-11-2007.
The notice does not record the date of taking over of possession, being
fixed. We find that the date of taking over possession is kept blank. The
respondents have, however, on the basis of the revenue records stated
that the possession of the excess land was secured by the Government on
14-11-2007. There is no material, whatsoever in respect of securing the
possession of the excess land on 14-11-2007. The notice under Section
10(5) does not mention 14-11-2007, as the date fixed for handing over
of possession. There is no possession receipt on record. The respondent
authorities cannot make a show of securing the possession solely by
entering the name of the State Government in the revenue records. It
appears that the Repeal Act of 1999 came into force on 29-11-2007 and
since the said Act was about to come into force, a show is made by the
respondent authorities of issuance of a notice under Section 10(5) of the
Act on 5-11-2007 and taking of the possession on 14-11-2007. It is
pertinent to note here that the record does not reveal that the notice
under Section 10(5) of the Act of 1976 was served on the petitioner.
Since the possession of the land of the petitioner was not lost and since
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the petitioner is in possession of the excess land, the prayers made by
the petitioner are need to be granted.
Hence, for the reasons aforesaid, the writ petition is
allowed. Rule is made absolute in terms of prayer clause (a), (b) and (c).
In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
//MULEY//
