Smt. Usha Vasantrai Trivedi Thr. ... vs State Of Maha. Thr. Secretary, ...
2018 Latest Caselaw 89 Bom

   wp2717.16                                                                   1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                    WRIT PETITION  NO.  2717  OF  2016


  1. Smt. Usha d/o Vasantrai Trivedi,
     w/o Yogeshumar Oza, aged about
     57 years, occupation - Household.

  2. Smt. Neelkumari @ Neela d/o
     Vasantrai Trivedi w/o Dilip Trivedi,
     aged about 60 years, occupation -
     Household.

  3. Smt. Aruna d/o Vasantrai Trivedi,
     w/o Harshadrai, aged about 66
     years, occupation - Household.

  All through Power of Attorney Shri
  Ajay s/o Vasantrai Trivedi r/o Itwari,
  Nagpur.                                     ...   APPELLANTS

                    Versus

  1. State of Maharashtra
     through its Secretary,
     Urban Development Department,
     Mantralaya, Mumbai 400 032.

  2. Competent Authority & Additional
     Collector, Urban Land Ceiling 
     Authority, having its office at 
     Collector's Compound, Civil Lines,
     Nagpur.

  3. Nagpur Housing and Area
     Development Board, through its
     Chief Executive Officer, Near M.L.A.
     Hostel, Civil Lines, Nagpur.             ...   RESPONDENTS




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    wp2717.16                                                                       2



  Shri P.V. Vaidya, Advocate for the petitioners.
  Ms. A.R. Kulkarni, AGP for respondent Nos. 1 & 2.
  Shri P.N. Kothari, Advocate for respondent No. 3.
                     .....

                                      CORAM : B.P. DHARMADHIKARI &
                                                MRS. SWAPNA JOSHI, JJ.

JANUARY 05, 2018.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Vaidya, learned counsel for the

petitioners, Ms. Kulkarni, learned AGP for respondent Nos. 1 &

2 and Shri Kothari, learned counsel for respondent No. 3.

2. Though Shri Kothari, learned counsel has attempted

to demonstrate that respondent Nos. 1 & 2 have passed orders

which are vague and with an intention to benefit the

petitioners, we are not inclined to look into that challenge at

this stage. Shri Kothari, learned counsel appearing for

respondent No. 3 - Nagpur Housing and Area Development

Board and Shri Vaidya, learned counsel for the petitioners have

submitted that while sanctioning scheme under Section 20(1)

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

(hereinafter referred to as Ceiling Act) on 28.05.1996 as per

provisions of law, Government received 3726 square meters of

land free of cost from the petitioners and that land has been

then made over to respondent No. 3. The effort, therefore, is to

demonstrate that respondent No. 3 has no locus in present

matter. He has submitted that the provisions of The Urban

Land (Ceiling and Regulation) Act, 1976, have been repealed

on 27.11.2007 and because of that repeal, though possession of

balance land of the petitioners was never taken, respondent

Nos. 1 & 2 fabricated possession receipt dated 16.10.2007. He

contends that even today, the petitioners are in possession.

3. Ms. Kulkarni, learned AGP has produced before this

Court original records for our perusal.

4. The order dated 28.05.1996 shows that while

sanctioning scheme under Section 20 of the Ceiling Act, the

State Government has found area of land becoming available to

it free of cost to be 3726 square meters. The petitioners

thereafter claimed that they have moved an application under

Section 34 of the Ceiling Act which came to be registered in the

office of the Competent Authority. The Competent Authority

has passed revised order on 05.06.2003. As per revised order

dated 05.06.2003, the petitioners have been given four more

shares of 1500 square meters each as retenable land with the

result their total retenable land rose to 9000 square meters

from earlier 3000 square meters. The order dated 05.06.2003

passed by Shri S.G. Gautam, Additional Collector and

Competent Authority shows that after deducting said portion

from balance land with the petitioners, land available for

declaring as surplus and, therefore, for scheme remains

21856.91 square meters.

5. Here again, Shri Kothari, learned counsel has

invited our attention to the fact that powers under Section 34

of the Ceiling Act are to be exercised by the State Government

only and cannot be delegated by it. Again, we need not look

into that aspect in present matter.

6. The fact that this balance land i.e. 21856.91 square

meters continued in possession of the petitioners till the

possession receipt dated 16.10.2007, is not in dispute. The

possession receipt produced on record is dated 16.10.2007. In

it, name of one Ashok Vasantrao Trivedi appears as person who

is supposed to hand over the possession. The present petition is

filed by other sons and daughters of Vasantrai. In possession

receipt, there is no signature of Ashok and it is not known

whether he received notice to hand over the possession or not.

7. The learned AGP, upon instructions, at this stage

submitted that when possession of 3726 square meters of land

was taken towards government share and it was handed over to

respondent No. 3, the possession receipt was prepared and

original possession receipt may be in that file.

8. We do not find any substance in this contention.

The order dated 05.06.2003 passed by Shri Gautam under

Section 34 is not disputed either by the State Government or by

present respondent No. 2. They have not invited attention of

this Court to Section 34 or then authority competent to

exercise powers under that section. On 05.06.2003, Shri

Gautam has mentioned that after deducting 3726 square

meters of land, the land left with owners was 30856.91 square

meters. He has then deducted 9000 square meters of land from

this portion and worked out surplus land to 21856.91 square

meters. He has then mentioned that in the light of his

observation and Government circular dated 10.05.1999, he

orders necessary correction in scheme sanctioned under Section

20(1)(a) of the Ceiling Act. Thus, till 05.06.2003, the

possession of balance land was not taken at all. In any case,

after 05.06.2003, if possession is to be taken, notice to four

holders whose shares are recognized on that day by respondent

No. 2 was must. No such document or then any document

showing receipt of possession from them is produced on record.

9. We, therefore, find that possession receipt dated

16.10.2007 pressed into service by respondent Nos. 1 & 2 is

unacceptable. The said possession receipt is in relation to

Survey No. 13(3) & (4) only and there the area of land is

shown as .77 Hectares i.e. 77000 square feet or about 7000

square meters. In the order under Section 34, Shri Gautam has

mentioned total area of these two survey numbers at Bhamti to

be little above 23000 square meters.

10. We, therefore, find that respondent Nos. 1 & 2 have

not taken possession of land from the petitioners at all and

hence the petitioners continued in possession of 21856.91

square meters of land. In this situation, due to repeal of Ceiling

Act and non completion of exercise ordered by respondent No.

2 on 05.06.2003, we hold that the acquisition of said land

under the Ceiling Act lapses.

11. It is clarified that this does not in any way affect the

land area of 3726 square meters which has been allotted by

respondent No. 1 to respondent No. 3. We also record that

during arguments, in order to avoid any further confusion, we

have expressly made query in this respect and the learned

counsel for the petitioners has also agreed to this.

12. In this situation, accordingly with declaration that

Urban Land Ceiling proceedings in relation to 21856.91 square

meters of land Survey No. 74/2 of Babulkheda and 13/3 and 4

of Bhamti have lapsed, we partly allow the present writ petition

and dispose it of. However, in the facts and circumstances of

the case, there shall be no order as to costs.

           JUDGE                                              JUDGE
                                       ******

  *GS.