Panchafula W/O Manoj Khode And 3 ... vs State Of Maharashtra, Through Its ...
2017 Latest Caselaw 4218 Bom

                                                   1              J-WP-6674-13.odt

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

                       WRIT PETITION NO.   6674 OF 2013

 1. Panchafula w/o Manoj Khode,
    Aged about : 38 years,
    Occupation : Household,
    Resident of Hazaripahad, Nagpur.

 2. Smt. Rekha w/o Narayan Marotkar,
    Aged about : 45 years,
    Occupation : Household,
    R/o Kalmeshwar, Distt. Nagpur.

 3. Smt. Pushpa w/o Janardan Bandhe,
    Aged about : 43 years,
    Occupation : Household,
    R/o Bramhni, Kalmeshwar,
    Distt. Nagpur.

 4. Baby Nanda w/o Rajiv Ital,
    Aged about : 40 years,
    Occ. Household,
    R/o Seloo, Distt. Wardha.                           ..... PETITIONERS

                               ...V E R S U S...

 1. State of Maharashtra,
    Through its Secretary,
    Ministry of Revenue,
    Mantralaya, Mumbai - 32.

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

 3. Nagpur Improvement Trust,
    Nagpur, through its Chairman,
    Having its office at Kingsway,
    Sadar, Nagpur.

 4. Rambhau s/o Bhadu Khadgi,
    Age : 65, Occ. Agriculturist.




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 5. Anusuyabai wd/o Ramchandra Khadgi,
    Occ. Agriculturist,

      Both Residents of Hazari Pahad,
      Distt. Nagpur.                                              ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri P. V. Vaidya, Advocate for the petitioners.
 Smt. Harshada Prabhu, AGP for the respondent Nos.1 and 2.
 Shri M. V. Samarth, Advocate for the respondent No.3.
 None for the respondent Nos.4 and 5.
 -------------------------------------------------------------------------------------------


                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                                 ARUN D. UPADHYE, JJ.

DATED :-

10/07/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this petition, the petitioners seek a declaration that

the proceedings and the notification issued under Sections 9 and 10 of

The Urban Land (Ceiling and Regulation) Act, 1976 in respect of the

land of the petitioners stands abated in view of the provisions of Section

4 of The Urban Land (Ceiling and Regulation) Repeal Act, 1999.

Gendalal Rama Khadgi, the owner of the Land had filed

a return under Section 6 of the Act of 1976. The notification under

Section 10(1) of the Act was issued on 03/12/1981. It is the case of the

petitioners that neither was Section 10 (3) Notification published nor

were the proceedings under Section 10 (5) or 10 (6) of the Act

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initiated. It is stated that the possession receipt executed by the

Additional Collector, dated 05/07/1997 depicting that the excess land

was handed over to the Nagpur Improvement Trust is false as the

possession of the land of the petitioners was never secured by the State

Government under the provisions of Section 10 (5) & 10 (6) of the Act.

It is stated that the petitioners are the grand-sons and grand-daughters

of Gendalal Rama Khadgi and a declaration sought in the petition

would be necessary as the possession of the land of the petitioners was

not secured by the State Government in the proceedings under the Act

of 1976.

Mrs. Prabhu, the learned Assistant Government Pleader

appearing for the State Government submitted that the original owner

Gendalal Rama Khadgi had owned and possessed land that was

declared as surplus. It is stated that 53772.55 square meters of land

that was declared surplus, was acquired by the State under the

provisions of the Act. It is stated that the revised order under Section

8(4) of the Act was passed, whereby the total retainable share allowed

for the original owner was 4500 square meters. It is submitted that the

notification under Section 10(3) of the Act was prepared by the office of

the respondent on 22/01/1997 and the said notification was forwarded

to the Government Press for its publication. It is stated that the copy of

the Gazette Notification is however not to be found in the record. It is

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stated that the surplus land was handed over by the State Government

to the Nagpur Improvement Trust on 05/07/1997. It is stated that the

land handed over by the State Government to the Nagpur Improvement

Trust is to be treated as private land in view of the Government

Resolution dated 16/08/2013. It is stated that since the matter is old,

the entire record of the proceedings is not available and hence, the

reply is based on the available record that comprises of the copy of the

notification under Section 10(1) of the Act and the preparation of the

notification under Section 10(3) thereof. The learned Assistant

Government Pleader specifically denied that the possession of the land

was not secured in the proceedings initiated under the Act of 1976. It is

stated that the petition suffers from laches and the same is liable to be

dismissed.

Shri Samarth, the learned counsel for the Nagpur

Improvement Trust has denied the claim of the petitioners. The learned

counsel relied on the affidavit-in-reply filed on behalf of the Nagpur

Improvement Trust to submit that the petitioners are not the legal heirs

of Gendalal Rama Khadgi and the document annexed to the petition i.e.

the revised order under Section 8(4) of the Act mentions that the

proceedings under the said provisions were filed by the Power of

Attorney Holder of Gendalal Rama Khadgi and his legal heirs that are

mentioned in the said order. It is stated that the names of the

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petitioners do not find place in the revised order under Section 8 (4). It

is stated that the part of the land that was declared excess was handed

over by the State Government to the Vidarbha Handicrafts Artisan

Welfare Association on 18/08/1987. It is stated that Gendalal Rama

Khadgi had already parted with the possession of the land as could be

seen from the order under Section 8 (4) of the Act, 1976. It is stated

that Gendalal Rama Khadgi had sold 5.34 acres of land to Jai Bajranj

Krupa Gruha Nirman Sahakari Sanstha Ltd. by registered sale deed

dated 26/11/1982. It is stated that another sale deed was executed by

Gendalal Rama Khadgi in respect of remaining land. It is stated that the

sons and daughters of Gendalal Rama Khadgi were parties to the

proceedings under Section 8 (4) of the Act and the names of the

petitioners do not find place either as parties to the said proceedings or

in the order passed under Section 8 (4) of the Act. It is stated that Jai

Bajranj Krupa Gruha Nirman Sahakari Sanstha Ltd., to whom the

surplus land was sold by executing registered sale deeds dated

12/11/1986 and 26/11/1986 had applied to the Nagpur improvement

Trust for regularization of the unauthorized layout of the land on

13/09/1985. It is stated that to the affidavit-in-reply filed on behalf of

the Nagpur Improvement Trust, a list of persons to whom the plots had

been sold by the society is annexed. It is stated that the individual plot

holders had also made applications to the Nagpur Improvement Trust

for regularization of the plots and till date, 109 plots are regularized on

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the basis of ownership documents. It is stated that in respect of the

other applications, the process of regularization is in progress. It is

stated that the petitioners have neither proved that they are the legal

heirs of Gendalal Rama Khadgi nor have the petitioners joined Jai

Bajranj Krupa Gruha Nirman Sahakari Sanstha Ltd. or the holders of the

plots to whom the land was transferred, as respondents. In the

circumstances of the case, the Nagpur Improvement Trust sought for the

dismissal of the writ petition.

On hearing the learned counsel for the parties, it

appears that the relief sought by the petitioners cannot be granted in

exercise of the writ jurisdiction. The question whether the petitioners

are the legal heirs of Gendalal Rama Khadgi is itself in dispute. There is

a serious dispute whether the petitioners are the legal heirs of Gendalal

Rama Khadgi. Also, the proceedings under the Act of 1976 were

initiated in respect of the land of Gendalal Rama Khadgi in the year

1976 and the notification under Section 10 (1) was issued on

03/12/1981. On 05/07/1997, the Additional Collector executed a

possession receipt handing over the surplus land of Gendalal Rama

Khadgi to the Nagpur Improvement Trust. Even before the said land

was handed over to the Nagpur Improvement Trust, Gendalal Rama

Khadgi had sold the said land to the Sahakari Sanstha, which in turn

had divided the land into plots and sold the plots to several individuals.

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138 individual plot owners had applied to the Nagpur Improvement

Trust for regularization of their plots and the plots of more than 100

applicants have been regularized. The process of regularization of the

plots of the other applicants is in progress. Though proceedings under

Section 8 (4) of the Act were filed by Gendalal Rama Khadgi and his

son and daughters before the Collector, the petitioners were not parties

to those proceedings. In the said proceedings, the revised order under

Section 8 (4) of the Act of 1976 was passed. It is rightly pointed out on

behalf of the respondents that the names of the petitioners do not find

place either in the cause title which mentions the names of the parties

nor are the names of the petitioners found in the order which mentions

the names of Gendalal Rama Khadgi, his three daughters and son. The

petitioners have not explained the delay in filing the writ petition.

Though Gendalal Rama Khadgi had expired in the year 2009, he had

not taken any steps to seek a declaration, as sought by the petitioners.

The petitioners have not explained as to why they did not take any

action for a period of nearly five years from the death of Gendalal Rama

Khadgi. The writ petition is filed on 09/10/2013. The Repeal Act of

1999 has come into force in the year 2007 and Gendalal Rama Khadgi

has expired in the year 2009. Gendalal Rama Khadgi did not seek any

declaration in view of Section 4 of the Urban Land (Ceiling and

Regulation) Repeal Act of 1999 after it came into force in November,

2007. The petitioners also did not take any steps for five years after the

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death of Gendalal Rama Khadgi. It is held by the Hon'ble Supreme

Court in the Judgment, reported in (2015) 5, SCC 321 that any

grievance based on Section 10 (5) should be made within a reasonable

time and a belated challenge against dispossession, based on absence of

notice under Section 10 (5) cannot be entertained. The unreported

Judgment of this Court dated 27 th July, 2012 in Writ Petition

No.4571/2011 is distinguishable on facts and cannot come to the rescue

of the petitioner for seeking the relief claimed.

Since the declaration, as sought by the petitioners

cannot be granted, we dismiss the writ petition with no order as to

costs.

                      JUDGE                                    JUDGE




 Choulwar