Bombay High Court
Dattatraya S/O Ramchandra Raut ... vs State Of Maharashtra, Thr. ... on 1 February, 2021
Bench: Pushpa V. Ganediwala
WP 4279.2019.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4279 OF 2019
1. Dattatray s/o Ramchandra Raut,
aged 58 years, Occ. Agriculturist.
2. Dyaneshwar s/o Waman Raut,
aged 40 years, Occ. Agriculturist.
3. Pravin s/o Waman Raut,
aged 28 years, Occ. Agriculturist.
4. Purushottam s/o Ramchandra Raut,
aged 55 years, Occ. Agriculturist.
5. Smt. Nirmala s/o Shankar Raut,
aged 26 years, Occ. Agriculturist.
6. Chakradhar s/o Waman Raut,
aged 26 years, Occ. Agriculturist.
7. Krushna s/o Purushottam Raut,
aged 28 years, Occ. Agriculturist.
8. Kunal s/o Purushottam Raut,
aged 25 years, Occ. Agriculturist.
9. Surekha d/o Dilip Sherje,
aged 32 years, Occ. Agriculturist.
10.Sheetal Chandrashekhar Adhau,
aged 34 years, Occ. Agriculturist.
11.Nikita Nilesh Dehankar,
aged 34 years, Occ. Household.
12.Pratiksha d/o Dattaraj Raut,
aged 19 years, Occ. Education.
13.Shakshi d/o Dattaraj Raut,
aged 18 years, Occ. Education.
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WP 4279.2019.odt 2
14.Jayshree Purushottam Raut,
aged 29 years, Occ. Agriculturist.
All are R/o Godhani (Railway),
Tah. and District Nagpur.
...PETITIONERS
Versus
1. State of Maharashtra,
through its Secretary, Ministry of Urban
Development, Mantralaya, Mumbai - 32.
2. Special Land Acquisition Officer/
Competent Authority-cum-Deputy Collector
(Urban Land Ceiling), Civil Lines, Nagpur.
3. Collector, Nagpur District,
Civil Lines, Nagpur.
4. Tahsildar, Tahsil Office, Nagpur (Rural),
District - Nagpur.
5. Nagpur Housing and Area Development Board (MHADA),
through its Management Director, Civil Lines,
Nagpur - 440001.
...RESPONDENTS
Shri A.P. Tathod, Advocate for the petitioners.
Shri V.A. Thakare, A.G.P. for respondent Nos. 1 to 4.
Shri P.N. Kothari, Advocate for respondent No.5.
.....
CORAM : DIPANKAR DATTA, CJ AND
PUSHPA V. GANEDIWALA, J.
DATED : FEBRUARY 01, 2021.
JUDGMENT (PER : PUSHPA V. GANEDIWALA, J.) :
Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel appearing for the parties.
2. Shri V.A. Thakare, learned A.G.P., waives notice on
behalf of respondent Nos. 1 to 4.
3. Shri P.N. Kothari, learned counsel, waives notice on
behalf of respondent No.5.
4. In this petition, the petitioners have sought
declaration that as the surplus land acquisition proceedings
vide ULC Case No. 2715/1976 initiated by the respondents
under the provisions of The Urban Land (Ceiling and
Regulation) Act, 1976 (for short "ULC Act, 1976") is lapsed,
the petitioners are entitled to continue with their possession in
respect of lands bearing Survey Nos. 27/1, 26/1 and 26/3,
situated at Mouza Gorewada, Tah. and District Nagpur.
5. It is stated that the father of the petitioners was the
original owner and in possession of the agricultural lands as
stated above. The father of the petitioners expired long back,
and the petitioners inherited the subject lands, being his legal
representatives.
6. The respondents initiated proceedings under the
provisions of the ULC Act, 1976. The Competent Authority
under the ULC Act, 1976 directed the father of the petitioners
to submit the statement under Section 6(1) of the ULC Act, and
in pursuance thereof, he had submitted the statement of
objection on 11/12/1985.
7. On the basis of the aforesaid statement, and upon
enquiry, an order was passed by respondent No.2 under Section
9 of the ULC Act, 1976 on 06/04/1993, and final statement
was prepared and served upon the father of the petitioners
wherein the land admeasuring 16713 square meters was
shown as surplus land of the land owned by the petitioners'
father.
8. Thereafter, a notification under Section 10(1) of the
ULC Act, 1976 was also issued on 06/04/1993, and the same
was also published in the Government Gazette.
9. The core submission of the petitioners is that
though the final declaration was published under Section 10(3)
and the notice under Section 10(5) of ULC Act, 1976 was
issued to the father of the petitioners calling upon him to
handover the physical possession, none of the authorities,
including the respondents, have taken any steps to take
possession of the surplus land, either from the father of the
petitioners or from the present petitioners till today.
10. On 29/11/2007, the State of Maharashtra adopted
The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for
short "Repeal Act"), as a result of which, the ULC Act, 1976
stood repealed in the State of Maharashtra. The petitioners
have filed this petition stating that the actual physical
possession of the lands was never taken by the respondents,
and that they continue to be in peaceful possession of the
same. The petitioners have therefore prayed that in view of
repeal of the ULC Act, 1976, the subject lands reverted to
them, and that the respondents cannot have any claim upon
the same.
11. Shri Tathod, the learned counsel for the petitioners,
submitted that in cases where actual possession of the land has
not been taken before 29/11/2007, when the Repeal Act came
into effect in the State of Maharashtra, the said land cannot be
said to have vested in the State Government and therefore, the
State can have no claim upon the same. In support of his
submission, the learned counsel has relied on the judgment of
the co-ordinate Bench of this Court in the case of Dhondiram
Babu Ghodake Vs. The State of Maharashtra & Anr. , reported in
2018(7) ALL MR 784, wherein this Court has relied on the
judgment of the co-ordinate Bench of this Court in the case of
Volta Ltd. & Anr. Vs. Additional Collector & Competent
Authority & Ors., reported in 2008 (5) Bom. C. R. 746, and
held as under :
"8. This Court in its judgment in the case of Voltas Ltd.
[2008(5) ALL MR 537] (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 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. **** 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. [2008(5)
ALL MR 537] (supra)."
12. Respondent Nos.2 and 3, in their affidavit-in-reply,
in para 9 have stated that the notification under Section 10(3)
of the ULC Act, 1976 which was published by the Office of the
Competent Authority ULC, Nagpur on 02/11/1989, is cancelled
by the respondent No.1 - Urban Development Department,
Mantralaya, Mumbai, vide communication dated 12/05/2010,
and in consequence of the same, the said notification under
Section 10(3) is revoked, and the same has been published in
the Government Notification dated 01/07/2010.
13. The affidavit-in-reply on behalf of respondent Nos.
2 and 3 would further reflect that respondent No.2 have called
upon a report from respondent No.5 MHADA with regard to
the actual possession of subject lands. In the report, respondent
No.5 MHADA reported that possession of the lands in question
was received on 12/02/1990 by the Office of MHADA. The
lands in question are presently shown to be reserved in
Development Plan of Nagpur City for the purposes of Cattle
Stable and Dairy Farm and therefore, MHADA could not
develop the Housing Accommodation Scheme over the land in
question. Consequently, MHADA could not deposit the amount
of compensation in the Office of respondent Nos. 2 and 3.
14. Affidavit-in-reply further reflects that the Tahsildar,
Nagpur city, vide correspondence dated 24/09/2019, reported
that the lands in question are recorded in the name of MHADA
in current 7/12 extracts, and upon spot inspection of the lands
in question, it is found that actual physical possession of the
lands is with the petitioners.
15. Shri Kothari, learned counsel for respondent No.5
MHADA, also submits that even though the de jure possession
of the surplus land is shown to have been in the name of
MHADA in the revenue records, the said land, being of
reserved category in the Development Plan of Nagpur City for
the purposes of Cattle Stable and Dairy Farm, and since
MHADA could not develop the Housing Accomodation Scheme
over the land in question, MHADA could not deposit the
amount of compensation in the office of respondent Nos.2 and
3. The learned counsel does not dispute the claim of the
possession of the petitioners over the subject surplus land.
16. Considering the aforesaid reply on behalf of
respondent Nos.2 and 3, and considering the submissions of
Shri Kothari, learned counsel, since the notification under
Section 10(3) of the ULC Act, 1976 published by the Office of
the Competent Authority ULC, Nagpur is revoked by the
present respondents, and the same is also published in the
official gazette, consequently, the possession of the subject
lands remained with the petitioners.
17. In this view of the matter, the Writ Petition is
allowed and it is held that since the notification under Section
10(3) of the ULC Act, 1976 has been revoked in ULC Case No.
2715/1976 and at no point of time actual physical possession
was taken resulting in the possession of surplus land
continuing with the petitioners, the respondents have no right
in respect of the said land. Rule is accordingly made absolute in
terms of prayer clauses (i) to (iii) of the petition. There shall be
no order as to costs.
(JUDGE) (CHIEF JUSTICE)
******
Sumit
