Hemendra Mathuradas Kothari And ... vs State Of Maharashtra And Otehrs
2021 Latest Caselaw 11989 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO.3658 OF 2006
                                ...

Hemendra Mathuradas Kothari & Ors.
Mathuradas S. Kothari and others                      ....Petitioners
      V/S
State of Maharashtra and others                       ....Respondents
                                 ...
Mr. C.M. Korde, Senior Counsel a/w Mr. J. Chandran i/b Mr. Sasikumar T.C.
A.O.R. for the Petitioners.
Mr. R.M. Shinde, AGP for Respondent Nos.1, 3 and 4/State.
Ms. Sonali Chavan a/w Ms. Vaishnavi Gujarathi i/b Dr. Uday Warunjikar for
Respondent No.5/ Society.
                                   ...
                                       CORAM : A.A. SAYED &
                                               PRAKASH D. NAIK, JJ.
                                       DATE : 27 AUGUST 2021.

ORDER:

1 The Petition challenges the order dated 18 April 1985 passed by the

Respondent No.4/Deputy Collector & Competent Authority under section

8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter

referred to as 'the ULC Act') concluding that the Petitioners were holding

excess vacant land. The Petition also challenges various orders passed

under the provisions of the ULC Act.

2 One Mathuradas S. Kothari alongwith his wife Smt. Kusumben

Mathuradas Kothari, both deceased, owned property known as 'Chipstone'

at Deolali village, Nashik, admeasuring 27,571 square meters (hereinafter

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referred to as 'the said property') more particularly described in paragraph 2

of the Petition. The present Petitioners are the executors under the Wills of

aforesaid deceased persons. The Petitioner Nos.1 and 2 are the sons of the

aforesaid deceased persons and the Petitioner No.3 is their son-in-law.

3 The present Petition was filed on 9 May 2006. On 15 September

2006 this Court admitted the Petition and granted Rule on interim relief,

returnable after eight weeks and also directed that status quo to be

maintained until the next date. On 27 November 2006 the order of the

status quo was continued until further orders.

4 According to the Petitioners, they received a notice dated 12

September 2006 under section 10(5) of the ULC Act threatening to take

possession of land admeasuring 9,500 square meters. It is the case of the

Petitioners that on receipt of the said notice under section 10(5) of the ULC

Act, the Petitioners became aware of the Notification dated 7 August 2006

under section 10(3) of the ULC Act published in Maharashtra Government

Gazette on 31 August 2006. The Petitioners by letter dated 27 September

2006 through their Advocate addressed to the various Respondents pointed

out the order dated 15 September 2006 of this Court directing status quo to

be maintained and to not to disturb the possession of the Petitioners with

respect of the said property.

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5        During the pendency of the Petition, on 29 November 2007 the ULC

Act was repealed by the State of Maharashtra vide Urban Land (Ceiling and

Regulation) Repeal Act, 1999 (hereinafter referred to as 'ULC Repeal Act').

6 Pursuant to Civil Application No.585 of 2008 taken out by the

Petitioners, the Petition was amended. In the Affidavit-in-Reply to the said

Civil Application for amendment, the Additional Collector and Competent

Authority admitted that the possession of the subject lands had not been

taken.

7 In view of the ULC Repeal Act which came into effect from 29

November 2007, the issue in the present Writ Petition is now very narrow. It

is an admitted position that the possession of the surplus land has not been

taken under sections 10(5) or 10(6) of the ULC Act. The issue in the Petition

is squarely covered by the judgment of the Division Bench of this Court in

Voltas Limited vs. Additional Collector & Competent Authority, 2008 (5)

Bom.C.R. 746. The Division Bench of this Court has held that if possession

of the land has not been taken pursuant to the notice by the State

Government then the vesting of the land in the State Government stands

cancelled or abrogated by the provisions of the ULC Repeal Act by

necessary implication. The Division Bench held that as a consequence of

the ULC Repeal Act further proceedings abate and can no longer be

proceeded and the declaration made under section 10(3) of the ULC Act

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shall lapse and the land could no longer vest in the State Government. It is

pointed out by learned Senior Counsel for the Petitioners that the SLP filed

against the judgment of the aforesaid Division Bench of this Court was

dismissed by the Supreme Court by order dated 7 November 2008. In the

circumstances, the judgment of the Division Bench has attained finality and

would hold the field. In view of the said judgment of the Division Bench it

would have to be held that all proceedings in the present case under the

ULC Act have lapsed on its repeal by the ULC Repeal Act.

8 Learned Counsel on behalf of the Respondent No.5 Society pointed

out that the Respondent No.5 Society comprises of backward class

members and by virtue of orders dated 12 August 1981 and 6 September

1984 of the State Government, certain rights have crystallized in favour of

the Respondent No.5 Society in respect of 25 acres of land under survey

No.131 which was allotted to Respondent No.5 and which forms part of the

said property, for the purposes of accommodating 77 members of the

Respondent Society and that the Respondent Society had deposited the

amount of Rs.4,37,000/- with the Special Land Acquisition Officer and the

said land was required be made available to the Respondent Society under

the ULC Act after acquiring the said land. We find that no such rights had

crystallized in favour of the Respondent No.5 Society by virtue of the orders

dated 12 August 1981 or 6 September 1984. In any event, the alleged

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rights, if any, of the Respondent No.5 Society was only through the State

Government. Inasmuch as the State Government itself is divested of rights,

if any, in respect of the said property by virtue of the ULC Repeal Act, there

is no question of Respondent No.5 Society having any right in respect of

the part of the said property. However, considering the fact that the

Respondent No.5 Society is a Society of backward class members and

since an amount of Rs.4,37,000/- was deposited by the Respondent No.5

Society with the Special Land Acquisition Officer, Nashik as far back as

1984 or thereabout, at the request of learned Counsel for Respondent No.5

Society, we permit the Respondent No.5 Society to make a representation

to the State Government for allotment of alternate land, which may be

considered by the State Government sympathetically. Since the learned

Counsel for Respondent No.5 Society has not insisted on refund of the

aforesaid amount, we have not passed any order in that respect. It would

however be open for Respondent No.5 Society to seek refund of the

aforesaid amount from the State Government, if so adviced.

9     In the result, we pass the following order:

i)    The Writ Petition is allowed in terms of prayer clauses (bb) and (bbb)

      which read as follows:

"(bb) for a declaration that no action can be taken in respect of the said land which is the subject matter of the present petition pursuant to any order passed in respect of the said

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land under the repealed ULC Act, including the Section 8(4) Order dated 18th April, 1985 (Exhibit "G"), the Section 33 Order dated 5th December, 2000 (Exhibit "W"), the Order denying agricultural exemption dated 5th December, 2000 (Exhibit "X"), the Order in revision dated 20th March, 2006 (Exhibit "JJ"), the notice dated 12th September, 2006 (Exhibit "TT"), the Notification dated 7th August, 2006 (Exhibit "VV") and the Notification dated 22nd March, 2001 published in Maharashtra Government Gazette, Nashik Division, Part I Supplement dated 22nd March, 2001 at Page 422 and that all proceedings under the ULC Act in respect of the said land have abated and that the Applicants are at liberty to deal with the said land in accordance with law without any restriction of any nature whatsoever under the repealed ULC Act.

(bbb) for a declaration that the deemed vesting in respect of 9500 square metres of the said land under the said Notification dated 7th August, 2006 (Exhibit "VV") has become inoperative and non-est in view of the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999."

         ii)      Rule is made absolute in the aforesaid terms.


         10       On the request of learned Counsel for the Respondent No.5 Society,

we direct that this order shall operate after a period of eight weeks from

today.

                  (PRAKASH D. NAIK, J.)                           (A.A. SAYED, J.)
katkam



  SUDARSHAN       Digitally signed by
                  SUDARSHAN                         6/6
  RAJALINGAM      RAJALINGAM KATKAM
                  Date: 2021.09.08
  KATKAM          10:36:59 +0530