Savita Narsing Tupe And Ors vs State Of Maharashtra, Through ...
2017 Latest Caselaw 2782 Bom

hcs
                                            1                             2wp7050.2014

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.7050 OF 2014

      Savita Narsing Tupe & Ors.                      .. Petitioners.
            Vs.
      State of Maharashtra & Ors.                     .. Respondents.

                                      WITH
                          WRIT PETITION NO.7659 OF 2016

      Dattatraya Tukaram Tupe & Ors.                  .. Petitioners.
            Vs.
      State of Maharashtra & Ors.                     .. Respondents.



      Mr. A.Y. Sakhare, Senior Advocate i/b Mr.Prashant P. Kulkarni for the
      petitioners in WP No.7050 of 2014.

      Mr. R.S. Apte, Senior Advocate with Ms. Shirin Shaikh i/b Raval
      Shah for the petitioners in WP No.7659 of 2014.

      Mr. A.B. Vagyani G.P with                 Ms.Aparna   Vhatkar      AGP      for    the
      Respondent Nos.1 and 2.

      Mr. S.M. Gorwadkar, Senior Advocate i/b Mr.Sujay H. Gangal for
      Respondent Nos.3, 5, 8, 9, 10 and 13.


                                    CORAM : A.S. OKA & A.K. MENON, JJ.

                        RESERVED ON :             21ST APRIL, 2017

                  PRONOUNCED ON :                  6TH JUNE, 2017

      JUDGMENT (PER A.K.MENON, J.)

1. Rule. Returnable forthwith. By consent taken up for final

disposal.

2. This common order disposes of two Writ Petition. For the

sake of convenience the brief facts in Writ Petition No.7050 of 2014

2 2wp7050.2014

are being referred to : The petitioners claim to be the co-owners

of the agricultural lands bearing Survey Nos.94, 168, 169 and 170

at village Manjari, Taluka Haveli, District Pune admeasuring about

30 acres of land believed to be the agricultural land and ancestral

property of the petitioners and other co-owners. The village Manjari

is said to be in close proximity with the city of Pune. Petitioner

Nos.2a and 2b claim through Sarubai Tukaram Tupe, one of the co-

owners who expired on 2nd February, 2012. Petitioner No.2a and 2b

are the beneficiaries of the Will left behind by Late Sarubai Tukaram

Tupe. Petitioner No.1 was original Petitioner No.11 in Writ Petition

No.10425 of 2014 (which was since been disposed of) by this Court.

The Respondent Nos.1 and 2 are the State of Maharashtra and

Additional Collector and Competent Authority, Pune. Respondent

Nos.3 to 13 ( excluding respondent no.4) are other claimants and

petitioners in Writ Petition No.10425 of 2011.

3. It is the petitioners' case that when the Urban Land

(Ceiling and Regulation) Act, 1976 ("ULCRA") came into effect on

17th February, 1976, the said land was in an agricultural zone and

therefore the provisions of the ULCRA did not apply. In 1987, the

said land became part of a residential zone and therefore, the

provisions of the ULCRA became applicable from the year 1987. No

returns under Section 6(1) of the ULCRA were filed since

according to the petitioners the land was being cultivated and

continues to be cultivated till the date of the petition.

3 2wp7050.2014

4. On 29th November, 2006 an offence was registered with

the Deccan Gymkhana police station, Pune under C.R. No.622 of

2006 against nine accused persons for fabricating an order dated

6th December, 2000 purporting to be one passed under the

provisions of Section 8(1) of the ULCRA in respect of several lands

including the said land. It was alleged that the signature of the

Competent Authority was forged and the names of 53 land holders,

including the names of the present petitioners, were mentioned

therein although none of the petitioners had filed returns under

Section 6(1) of the ULCRA. It is the petitioners' case that the

Criminal Investigation Department of the State of Maharashtra

had concluded that the petitioners are not involved in the said

offence.

5. By virtue of the said FIR vide order dated 1st March, 2007

the petitioners were directed by the Respondent no.1 to maintain

status quo in respect of the lands mentioned in the order dated 1st

March, 2007, pending investigation, into the alleged offence. The

petitioners along with other co-owners of other land by Writ Petition

No.10425 of 2011 challenged the order dated 1st March, 2007. The

Writ Petition came to be disposed of on 11th January, 2012 by

directing the petitioners therein to file representations before the

State Government/ Competent Authority which were to be decided

within six weeks. In the meanwhile the Competent Authority

4 2wp7050.2014

under the ULCRA called for a report from the Investigating

Officer as to whether the petitioners were involved in the offence.

It transpires that the Investigating Officer had informed the

Competent Authority that the petitioners' complicity has not been

established.

6. The grievance of the petitioners is that till date the

representations of the petitioners made pursuant to the order of the

Court in Writ Petition No.10425 of 2011 have not been decided.

Meanwhile Respondent No.3 is believed to have submitted an

application to the Hon'ble Chief Minister, who held the Urban

department portfolio at the material time and requested him to

decide the issue. It is grievance of the petitioners that although a

detailed report has been submitted by the Competent Authority

on 18th May, 2013 indicating that the petitioners had not filed any

returns, the State Government has not taken any decision on the

representations and as such was in contempt of the aforesaid order

dated 11th January, 2012 passed by this Court in Writ Petition

No.10425 of 2011.

7. On 29th November, 2007 the Urban Land (Ceiling and

Regulation) Repeal Act, 1999 was brought into force. All the lands

of which possession was not taken under the provisions of the

ULCRA became freehold land and proceedings under ULCRA have

since abated. Since the petitioners had not filed the returns or

5 2wp7050.2014

proceedings under the ULCRA, no scheme was sanctioned or

approved under Section 20 of the repealed Act.

8. After filing of the petition, the petitioners received a letter

dated 12th December, 2014 from the 2nd respondent to the effect

that the proposal for development could not be granted and that the

respondents have not considered the various grounds taken by the

petitioners in the representations and written submissions.

According to the petitioners, the 2nd respondent had passed an

order without verifying the facts of the case and relying upon some

proceedings pending in the Apex Court which pertained to a scheme

sanctioned under the provisions of ULCRA but which had no

bearing on the present set of facts.

9. The learned counsel for the petitioners submitted that

while passing the order dated 12th December, 2014, the 1st and 2nd

respondents had not considered the fact that the Economic

Offences Wing had vide a report dated 20th December, 2012

informed the 2nd respondent that the petitioners were not

connected with the alleged offence and in that view of the matter,

the 1st and 2nd respondent have released land at Serial Nos.47, 48

and 49 mentioned in the fabricated ULCRA order. In the aforesaid

circumstances, it is stated that the impugned letter of 12th

December, 2012 demonstrates non application of mind, having

ignored a report of the State CID confirming that none of the

6 2wp7050.2014

petitioners were involved in the offence of fabricating the order of

exemption.

10. It was further submitted in the case of Parshuram

Kashinath Joshi vs. State of Maharashtra 1 the Division Bench of this

Court to which one of us (A.S. Oka, J) is a party has observed that

merely because an inquiry was underway it cannot be a ground to

not entertain the application for grant of development permission

under Section 45 of the MRTP Act. In that case also the charge-

sheet had been filed after the investigation. The petitioners therein

were not connected with the offence. The learned counsel for the

petitioners submitted that the instant case is covered by the decision

in Voltas Ltd. and Anr. vs. Additional Collector and Competent

Authority, Thane & Others2 and that the decision of the Supreme

Court in Vinayak Kashinath Shilkar vs. Deputy Collector and

Competent Authority & Others 3. It was submitted that even as on

date of the petition, the petitioners are engaged in cultivation of the

land and 7 X 12 extract indicate the nature of crops being

cultivated. The learned counsel for the petitioners further

submitted that by virtue of the Repeal Act, 1999 being brought into

force on 29th November, 2007 and the said lands having not taken

possession of, the same are free hold lands and the respondents are

barred from claiming the land.

2 2008 5 B.C.R. 746
3 2012 4 SCC 718





                                       7                               2wp7050.2014

11. On behalf of the State, an affidavit of Sambhaji Shivajirao

Chavan dated 20th August, 2015 has been filed to oppose the

petition. The reply states that the petitioners have filed a common

representation on 27th January, 2012. This common representation

had been decided vide order dated 12th December, 2014. It merely

records that the fabricated order "630T" contains reference to the

said lands and since the Deccan Gymkhana Police Station had

registered FIR No.622 of 2006, the permission sought could not be

granted.

12. This Court had vide order dated 27th April, 2016

observed that the affidavit in reply filed by the State Government

did not deal with the averments in the Writ Petition and the State

should file a detailed affidavit pointing out the stage of investigation

and secondly, whether the lands of the petitioners are involved in

the FIR and the report should be given by the police in respect of the

said complaint. It is pursuant to these directions that the affidavit

of the Collector dated 25th March, 2017 has been filed. In his

affidavit Saurabh Avadh Rao, Collector Pune has stated that the crime

is still being investigated but a copy of "Certificate B" annexed to

the said affidavit indicates that Order 630T is not pertaining to the

property belonging to Dayaram Tukaram Tupe (Respondent No.3

herein) and others including the petitioners. The deponent further

states that nobody can give clean chit to any land owner unless the

8 2wp7050.2014

investigation is complete.

13. Furthermore, on behalf of the Superintendent of Police

E.O.W, C.I.D Pune, the affidavit of one Seema Sathe, Assistant

Police Inspector has been filed which records that the deponent

has carefully gone through the investigation and charge-sheet in

respect of the said C.R. No.622 of 2006 and in the capacity of the

present Investigating Officer conducting further investigation and

she has been authorised to file her affidavit. It is submitted that the

charge-sheet has been filed against eight accused. The investigation

is in progress and the fabricated ULCRA certificate contains

references of various survey numbers including 94/2A/1/10 and

94/2A/1/14. From the affidavit it is evident that no charge-sheet

has been filed against any of the present petitioners.

14. Having considered the various submissions, we find that

present petition involves two issues. Firstly, the effect of the Repeal

Act/entitlement of the present petitioners to claim the lands as

freehold lands. Secondly, the effect of the complaint filed before

the Deccan Police Station, Pune. Apropos the first issue, the facts of

the present case are clearly covered by the decision of this Court in

Voltas Ltd. (supra) which holds that if possession of the vacant land

is not taken before 29th November, 2007, vesting of the land is

inconsequential. As a result the Competent Authority cannot make

an order directing the present petitioners to surrender or deliver

9 2wp7050.2014

possession of the land to the State.

15. Mere vesting of the land pursuant to the Sub-Section 3 of

Section 10 of the ULCRA without actually having taken possession

under Sub-Section 6 of Section 10 of the Act would not entitle the

State Government to act in furtherance of the provisions of the

ULCRA since these provisions are not available on repeal in the

absence of actual possession having been being taken prior to 27th

November, 2007. In the circumstances the State Government will

not be in a position to take possession of the lands under the

ULCRA. The State has not been able to demonstrate that vesting

of the land in the State was conclusive. Respondent Nos.1 and 2

have been unable to demonstrate that the possession of the land has

been taken in accordance with the provisions of the ULCRA before

the effect date of the Repeal Act i.e. 29th November, 2007.

16. In the circumstances the ratio in Voltas Ltd. (supra) will

clearly apply. It may also be noted that clause 3 of the Repeal Bill

revealed that there was an intention to protect vesting even of lands

of which delivery has been taken, but the Repeal Act does not

contain any provisions dealing with the lands in relation notice

under Sub-Section 5 of the Section of the Act. This aspect has been

dealt with in the judgment of Voltas Ltd (supra) when the Court

noted that the legislature has not intended vesting of lands with the

State of which possession is not taken.

                                       10                           2wp7050.2014



17.         Furthermore, in Vinayak Kashinath Shilkar                 (supra) the

Supreme Court observed that in paragraph 10 reads thus :

"10. It is clear from the above provisions that where 5 the

possession of the vacant land has not been taken

over by the State Government by any person duly

authorised by the State Government in this behalf

or by the Competent Authority, the proceedings

under the Act would not survive. Mere vesting of

the vacant land with the State Government by

operation of law without actual possession is not

sufficient for operation of Section 3(1)(a) of the

Repeal Act."

In view of the aforesaid reiteration, there can be no

manner of doubt that when possession has not been taken, the

present case mere vesting of the land will not entitle the State to

claim the land. In these circumstances the petitioners are entitled to

succeed. The petitioners' contention apropos vesting must be

accepted.

18. The next issue to be considered is the effect of the

pendency the trial in C.R. No.622 of 2006. The Deccan Gymkhana

Police Station has registered offences under Sections 420, 457, 468,

11 2wp7050.2014

472, 201, 203, 109, 114 read with 14 of Indian Penal Code on 29th

October, 2006 in relation to fabrication of the ULCRA order 630T

dated 6th December, 2000. It is evident from the record of the

Competent Authority and the report dated 18th June, 2013 which

incorporates the police report that the names of the present

petitioners have not been mentioned in the charge-sheet. The

petitioners are not accused of involvement in the fabrication of the

order or other fraudulent acts. That the petitioners had not

applied for exemption in respect of other lands is also not in

dispute. Mere inclusion of the petitioners land by description in

the fabricated document without prima face evidence of the

petitioners' complicity will not justify denying the petitioners their

right accruing by virtue of repeal of ULCRA. More so when the

factual position indicates that the possession of the lands have not

been taken and the petitioners have not been named in the charge-

sheet.

19. Pendency of the complaint and the trial need not detain

the petitioners' application for use of the land. Admittedly,

possession of the land is still with the petitioners. It is the

petitioners' case that they are still cultivating the land. This

contention has not been denied. Furthermore, in case of Parshuram

Joshi (supra), it was observed that in the facts of that case, that an

application has been made for grant of occupancy certificate which

was kept pending. The Court held that the application could not be

12 2wp7050.2014

rejected though a CID inquiry was in progress. If the document is

alleged to be fabricated then the present case as well trial of the

C.R. 622 of 2006 can continue as none of the petitioners have been

named as accused.

20. In yet another case in Writ Petition No.3695 of 2014 (Anil

Nemichand Bafna & ors. vs. The Collector Pune), this Court observed

that mere inclusion of the petitioners' land in the list of cases

forming part of a report of a One man Committee appointed was no

ground for keeping the petitioners' application for grant of non

agricultural use pending subject to right of the State Government

to take appropriate proceedings in accordance with law. In that

petition the District Collector or the Revenue Officer was directed

to consider the application for grant of non agricultural use and

decide the application in accordance with law.

21. Similarly in Writ Petition No.5871 of 2014, (Kantilal

Nathmal Baldota & Ors. vs. The Collector, Pune) it was found that

the case of the petitioners was not covered by the category of

fabricated and forged documents and not subject matter of

investigation by the police and no charge-sheet had been filed by

the police. In the present case the stand of the respondents in the

affidavit in reply of Saurabh Avadh Rao is no ground to keep the

application of the petitioners pending.

13 2wp7050.2014

22. In Writ Petition No.7659 of 2016, the 1st petitioner is

Dattatraya Tukaram Tupe. He has challenged the order dated 1st

March, 2007, 15th March 2007 and 12th December 2014 passed by the

2nd respondent under the Urban Land (Ceiling and Regulation) Act,

1976 (for short "the ULCRA") and seeks a Writ and direction to the

respondents to decide the representation filed by the petitioners

with respect to the said lands. The lands are being common in Writ

Petition No.7050 of 2014 and Writ Petition No.7659 of 2014 the facts

are almost identical. The 1st to 5th petitioners in Writ Petition

No.7050 of 2014 are 3rd, 4th, 6th, 10th and 11th respondents in Writ

Petition No.7659 of 2014.

23. Since possession of the said lands have not been taken,

the provisions of the repeal Act are of no avail to the respondents.

None of the petitioners in either petition are mentioned in the

charge-sheet as evident from the copy of the charge-sheet dated 25th

November, 2010 and there being only 8 accused persons, none of

the petitioners have been shown as the accused. Furthermore, in an

affidavit dated 7th April, 2017 of Ms.Seema Sathe, Assistant Police

Inspector EOW, CID filed in Writ Petition No.7569 of 2014, the

deponent has stated that, in the investigation conducted into the

offence, the role and complicity of total eight accused have been

established. The petitioners' names did not figure. The petitioners

have also filed an affidavit dated 10th April, 2017 in this Writ Petition

confirming that the charge-sheet was filed on 25th November, 2010

14 2wp7050.2014

and that there are no allegations against the petitioners in

connection with fabrication of the order under ULCRA.

24. Accordingly, we pass the following order :

(i) The impugned communications dated 1st March 2007, 15th March

2007 and 12th December, 2014 are set aside.

(ii) The Respondent Nos.1 and 2 are directed to decide the

representation filed by the petitioners in Writ Petition No.7050 of

2014 and Writ Petition 7569 of 2014 dated 27th January, 2012

preferably within a period of two months from today.

(iii) The petitioner's application for development permission shall be

considered in accordance with law and shall not be refused on the

ground of pendency of C.R.No.622 of 2006 or on the ground that

the bearing Survey No.94, 168, 169 and 170 at village Manjari,

Taluka Haveli, District Pune find mention in ULCRA order "630T".

(iv) This Order will not prevent the 1st respondent from taking

appropriate proceedings in accordance with law in relation to other

plots of land.

(v) There will be no order as to the costs.

(vi) The petitions are disposed of in the above terms.

(A.K. MENON, J.)                                            (A.S. OKA, J.)