Shri. Ramkishor S/O Hiralal ... vs State Of Maharashtra Thr ...
2016 Latest Caselaw 6576 Bom

     WP465.16 [J].odt                                 1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                                   NAGPUR BENCH : NAGPUR
                               WRIT PETITION NO.465 OF 2016




                                                             
     Shri Ramkishor s/o Hiralal Khetan,
     Aged 80 years, through Constituted
     Attorney Shri Mohammad Farooq s/o




                                                            
     Abdul Aziz Rangoonwala, Aged about
     40 years, Occupation-Business,
     R/o. Opposite Achraj Towers,
     Chindwada Road, Nagpur.                                   ..             Petitioner




                                                  
                                    .. Versus ..

     1]
                             
            State of Maharashtra, through
            Principal Secretary,
            Urban Development Department and
                            
            ULC, Mantralaya, Mumbai-32.

     2]     Additional Collector & Competent Authority,
            Urban Land Ceiling, Nagpur.

     3]     The Tahsildar, Kampthi,
      


            Tah. Kampthi, District-Nagpur.
   



     4]     The City Survey Officer, Kampthi,
            Tah. Kampthi, District-Nagpur.                     ..             Respondents

                             ..........





     Shri S.M. Puranik, counsel for the petitioner,
     Shri A.M. Joshi, AGP for the respondents.
                             ..........

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

DATED : NOVEMBER 21, 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, the petitioner challenges the notification

under Section 10 (3) of the Urban Land Ceiling Act, 1976 as also the

notice/action under Section 10 (5) thereof, as being invalid and contrary to

the provisions of law. The petitioner has sought a declaration that the

proceedings under the Urban Land Ceiling Act have abated in view of the

provisions of the Repeal Act, 1999.

According to the petitioner, in the proceedings initiated against the

petitioner under the provisions of the Urban Land Ceiling Act, the respondent

no.2 had issued a notification under Section 10(1) of the Act on 30.5.1991.

It is the case of the petitioner that the notification under Section 10 (3) of the

Act was not issued by the respondents though a draft notification under

Section 10 (3) of the Act was dispatched to the Manager, Government Printing

Press, Nagpur on 29.10.2007. It is stated that the respondent no.2-Additional

Collector and Competent Authority appears to have issued the notice to the

petitioner under Section 10 (5) of the Act, but the said notice was not received

by the petitioner. In view of the Repeal Act, the petitioner has sought a

declaration that the proceedings in respect of the land of the petitioner have

abated as the possession of the land is still with the petitioner.

The respondent no.2 has filed an affidavit-in-reply. It is not

seriously disputed that the petitioner continues to be in possession of the land.

It is stated that Sections 10(1) and 10(3) Notifications were duly published

and the notice under Section 10(5) of the Act was issued to the petitioner.

However, there is nothing in the affidavit-in-reply to point out that the notice

under Section 10 (5) of the Act was actually served on the petitioner. It is

vaguely stated in the affidavit-in-reply that the respondent no.2 took the

possession of the vacant land from the petitioner on 10.11.2007, though there

is no documents to show that actual possession was secured by the

respondents.

It is apparent from a reading of the affidavit-in-reply filed on

behalf of the respondents and the documents annexed thereto that the actual

possession of the land was not secured by the respondents from the petitioner.

It appears that a show is sought to be made in regard to the securing of

possession of land from the petitioner on 12.11.2007, that is just a few days

before the coming into force of the Repeal Act of 1999 on 29.11.2007. Since

the notice under Section 10 (5) of the Act was not served on the petitioner and

since the petitioner is still in possession of the land, the proceedings initiated

against the petitioner under the Urban Land Ceiling Act would stand abated,

on a combined reading of the provisions of Sections 3 and 4 of the Repeal Act.

We have time and again held in several cases that when the Repeal Act was

about to come into force on 29.11.2007, the government and its authorities

tried to make a show that the possession of lands was secured in the month of

November, 2007. This is a similar case where without securing the actual

possession of the land, the respondents have claimed that the possession of the

land was secured on 12.11.2007 without there being any possession receipt or

any other material to substantiate that the possession of the land was secured.

Hence, for the reasons aforesaid, the writ petition is allowed. The

prayers made by the petitioner in prayer clauses (a) (b) and (c) are granted.

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

                                      JUDGE                                               JUDGE

     Gulande, PA