Bombay High Court
Dhondiram Babu Ghodake vs The State Of Maharashtra, Through ... on 20 November, 2017
Bench: Anoop V. Mohta
WP. 1185-14.doc
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 1185 OF 2014
Dhondiram Babu Ghodake, )
Age 55 years, Occu. - Service, )
R/o. 4A / 7, Ghodakewadi, )
near Jadhavwadi, Market Yard, )
Kolhapur ... Petitioner
Vs.
1. The State of Maharashtra, )
Through Urban Development Dept. )
Mantralaya, Mumbai. )
2. Competent Authority and )
Deputy Collector, )
Central Administrative Building, )
Kasaba Bawada, Kolhapur ... Respondents
***
Mr. Rahul P. Walvekar, for the Petitioner.
Mr. S. B. Kalel, AGP for the Respondents.
***
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WP. 1185-14.doc
CORAM : ANOOP V. MOHTA, &
MANISH PITALE, JJ.
RESERVED ON : NOVEMBER 15, 2017
PRONOUNCED ON : NOVEMBER 20, 2017
JUDGMENT [PER : MANISH PITALE, J.]
1. Heard. Rule. Rule is made returnable forthwith. Learned
AGP waives service of notice for the Respondents. By consent of
parties, petition is taken up for final hearing.
2. The Petitioner has filed this writ petition claiming that he
is entitled to land bearing R. S. No. 4A / 7, admesuring 2,473.40 sq.
mtrs. situated at Jadhavvadi, Karvir, District Kolhapur, being reverted
to him, in view of repeal of the Urban Land (Ceiling & Regulation)
Act, 1976 (hereinafter referred to as the "said Act"), as the Respondent
- State failed to take physical possession of the said land, despite
proceedings under Section 6, 8 and 10 of the said Act.
3. The Petitioner is owner of 2,473.40 sq. mtrs of land in the
above mentioned survey being R.S. No. 4A / 7 in district Kolhapur.
Respondent No. 2 had undertaken proceedings under the provisions of
the said Act, on the basis of return and statement filed by the
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Petitioner under Section 6 of the Act and upon inquiry an order was
passed by Respondent No. 2 under Section 8(4) of the Act, holding
that the Petitioner was in possession of 473.40 sq. mt. vacant land in
excess of the ceiling limit in the aforesaid land R.S. 4A/7 in district
Kolhapur.
4. Pursuant to the said finding, a notification was published
under Section 10(1) of the said Act regarding the excess land held by
the Petitioner. This notification was published on 11.2.1982 and
thereafter, Respondent No. 2 did not take any further action for taking
possession of the said excess land. After about 25 years i.e. on
21.5.2007, Respondent No. 2 issued a notification under Section 10(3)
of the said Act stating that the said vacant land in excess of the ceiling
limit admeasuring 473.40 sq. mtrs. was deemed to have been acquired
by the State Government with effect from 31.5.2007. Thereafter, on
27.11.2007, Respondent No. 2 issued a notification under Section
10(5) of the said Act, calling upon the Petitioner to deliver possession
of the said land, immediately to the Tahsildar Karvir, district
Kolhapur.
5. On 29.11.2007 the State of Maharashtra adopted the
WP. 1185-14.doc
Urban Land (Ceiling & Regulation) Repeal Act, 1999, as a result of
which the Urban Land (Ceiling & Regulation) Act, 1976 stood
repealed in the State of Maharashtra. The Petitioner has filed this writ
petition stating that actual physical possession of the said land was
never taken by the Respondents and that he continues to be in
possession of the same. The Petitioner therefore, prays that in view of
the repeal of the said Act, the said land has reverted back to him and
that the Respondents cannot have any claim upon the same.
6. Mr. Rahul Walvekar, learned counsel appearing for the
Petitioner has submitted that position of law regarding effect of the
repeal of the said Act in cases where actual possession of the land has
not been taken, is no more res integra. According to him, the
judgment of this Court, in the case of Voltas Ltd. & Anr., Petitioners
Vs. Additional Collector & Competent Authority & Ors.,
Respondents,1 completely supports his contention and that in view of
failure of the Respondents to take possession of the land, this writ
petition deserves to be allowed.
7. Mr. S. B. Kalel, learned AGP appearing for the
1 2008 (5) Bom. C. R. 746
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Respondents has submitted that in pursuance of the notification dated
27.11.2007 issued under Section 10(5) of the said Act, de jure
possession of the land was taken and mutation entry was made,
recording the name of the State Government in the revenue record. He
contended that in view of these facts, no relief can be granted in the
petition.
8. This Court in its judgment in the case of Voltas Ltd.
(supra) has considered the question of the effect of Repeal Act,
particularly in cases where actual physical possession of the land was
not taken before 29.11.2007, when the Repeal Act came into effect in
the State of Maharashtra. The provisions of the said Act have been
discussed in detail in the said judgment, and it has been held as
follows:
"11. ... Thus, after 29.11.2007, the provisions of sub-
section (5) and sub-section (6) of Section 10 of the Principal
Act are not available to the State Government, therefore, in
relation to that land with respect to which declaration under
subsection (3) of Section 10 of the Principal Act has been
made but possession has not been taken, the Competent
authority will not be entitled to make an order directing the
person in possession of the land to deliver the possession to
the Government nor the Competent authority would be
entitled to take possession under sub-section (6) of Section
10 of the Principal Act on failure of the person in possession
WP. 1185-14.doc
to deliver the possession."
And
"In our opinion, therefore, it is clear from the provisions of
the Repeal Act that as a result of the Repeal Act neither any
proceedings can continue nor the State Government can
claim that the land continued to vest in it if possession of the
land in relation to which declaration under sub-section (3) of
Section 10 of the Principal Act has been made, has not been
taken before 29.11.2007. In other words to claim that vesting
of the land in the State Government is saved, it will have to
be shown by the State Government that the possession of the
land in accordance with the provisions of the Principal Act
has been taken by the Government before 29.11.2007."
Thus, it is clear that in cases where actual physical possession of the
land has not been taken by the State Government under Section 10(6)
of the Act before 29.11.2007, the said land cannot be said to have
vested in the State Government, and therefore, the State can have no
claim upon the same. The crucial fact in such cases is as to whether
actual physical possession has been taken by the State Government
before 29.11.2007.
9. In order to ascertain the said crucial fact in the present
case, a reference to the affidavit-in-reply of the Respondents is
necessary. In para 4 thereof, the Respondents have stated as follows:
"4. ... However, I say that the Urban Land (Ceiling and
WP. 1185-14.doc
Regulation) (Repeal) Act, 2007 came in force and as such
notification dated 27.11.2007 issued under section 10(5) of
the Urban Land (Ceiling and Regulation) Act, 1976 could
not be proceeded with and actual and physical possession
have not been taken."
Once, it is admitted by the Respondents that the notification dated
27.11.2007 issued under Section 10(5) of the said Act could not be
proceeded with and actual physical possession was not taken, it is
clear that the Petitioner herein is entitled to the relief claimed in the
petition. The Respondents are not justified in refuting the claim of the
Petitioner on the ground that de jure possession was taken by the State
Government, and that the revenue record also came to be mutated in
the name of the State Government in respect of the said land. Mere
mutation entries in the revenue record cannot be the basis for denial of
relief to the Petitioner, whose case is clearly covered by the aforesaid
judgment of this Court in the case of Voltas Ltd. (supra).
10. In the light of the above, the writ petition is allowed and
it is held that since the Respondents failed to take actual physical
possession of the aforesaid land before repeal of the said Act i.e. on
29.11.2007, the said land reverts back to the Petitioner and the
Respondents have no right, title or interest in the said land. Rule is
WP. 1185-14.doc
accordingly made absolute in the aforesaid terms, with no order as to
costs.
Sd/- Sd/-
[MANISH PITALE, J.] [ANOOP V. MOHTA, J.]
Vinayak Halemath
