Bombay High Court
Rajesh S/O Madhukarrao Motghare vs State Of Maha., Thr. Secretary, Urban ... on 1 December, 2023
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2023:BHC-NAG:16683-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.2292 of 2023
Rajesh S/o Madhukarrao Motghare, ]
Age 60 years, ]
Occupation - Business, ]
R/o 7, Hingulambika Society, ]
Near Gorkhede Complex, ]
Hajari Pahad, Nagpur-06. ] ... Petitioner
Versus
1. State of Maharashtra, ]
through its Secretary, ]
Urban Development Department, ]
Mantralaya, Mumbai-32. ]
]
2. The Additional Collector and ]
Competent Authority under the ]
Urban Land (Ceiling and ]
Regulation) Act, 1976, ]
Collector Office, ]
Civil Lines, Nagpur. ]
]
3. The Maharashtra Area and ]
Housing Development Corporation ]
(MHADA), ]
through its Chief Executive Officer, ]
Nagpur Gruhanirman Bhawan, ]
Near MLA Hostel, Civil Lines, ]
Nagpur. ] ... Respondents
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Shri S.P. Dharmadhikari, Senior Advocate, with Shri P.D. Sharma, Counsel for
Petitioner.
Shri A.A. Madiwale, Assistant Government Pleader for
Respondent Nos.1 and 2.
Shri P.P. Kothari, Counsel for Respondent No.3.
CORAM : A.S. CHANDURKAR & ABHAY J. MANTRI, JJ.
Date on which arguments were heard : 27th October, 2023
Date on which judgment is pronounced : 1st December, 2023
[ PRONOUNCEMENT THROUGH VIDEO CONFERENCE ]
JUDGMENT (PER A.S. CHANDURKAR, J.) :
1. Rule. Rule made returnable forthwith and heard the learned
counsel for the parties.
2. The challenge raised in the present writ petition is to the
communication dated 9-6-2015 that has been issued by the Urban
Development Department by which the land admeasuring 1 hectare
and 3 ares from Survey No.92/3, Mouza Hajari Pahad, Tahsil Nagpur
has been transferred in favour of the third respondent- Maharashtra
Housing and Area Development Authority (for short, 'MHADA'). The
subsequent communication dated 6-11-2015 issued by the
Competent Authority under the Urban Land (Ceiling and Regulation)
Act, 1976 (for short, 'the Act of 1976') permitting MHADA to take
over possession of the aforesaid land is also under challenge.
3. It is the case of the petitioner that the land admeasuring
2 hectares and 35 ares from Survey No.92/1 of Village Hajari Pahad
was owned by one Radhabai Motghare. Said Radhabai Motghare
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expired in the year 1983 and was survived by her son Madhukarrao.
After the death of Madhukarrao, the petitioner, his son, is prosecuting
the present proceedings. Under the provisions of the Act of 1976, the
land to the extent of 10,268 square meters was declared as surplus in
ULC Case No.247 of 1976. On the basis of the notice
dated 20-1-1983 published under Section 10(1) and the notice
dated 24-2-1983 published under Section 10(3) of the Act of 1976, it
was urged that the possession of the surplus land was taken away
from the original owner. The said land was then allotted to Uranium
Corporation of India on 16-12-1982 for construction of residential
premises for their employees. In the meanwhile, the original owner
of Survey No.93 had filed Special Civil Suit No.358 of 1993 raising a
challenge to the proceedings under the Act of 1976 initiated against
that land. The said suit was decreed on 14-2-1996 and the
authorities were directed to re-open the aforesaid proceedings.
According to the petitioner, the physical possession of the land in
question was never taken by the Uranium Corporation of India. In
the meanwhile, on the basis of the recommendation of the one-man
Hon'ble Justice Batta (Retd.) Committee, the allotment made in
favour of the Corporation was held to be illegal. The Act of 1976
came to be thereafter repealed on 29-11-2006. It is thus the case of
the petitioner that since the possession of the surplus land was not
taken in accordance with the provisions of Section 10(5) and (6) of
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the Act of 1976, the proceedings had abated and the petitioner
continued as the owner of the said premises. It is in this backdrop
that the allotment of the aforesaid land to MHADA is under
challenge.
4. Shri S.P. Dharmadhikari, learned Senior Advocate for the
petitioner, submitted that the possession of the surplus land was
required to be taken in the manner prescribed by Section 10(5) and
(6) of the Act of 1976. Unless it was shown that the actual physical
possession of the land in question was taken in accordance with the
provisions of the Act of 1976, the original owner would not be
divested of his title. Referring to the notice dated 31-3-1983 stated
to be issued under Section 10(5) of the Act of 1976, it was submitted
that the date for taking over possession was fixed as 15-4-1983. In
the original record, there was no endorsement of service of this
notice dated 31-3-1983 on the predecessor of the petitioner.
Referring to the provisions of Section 10(6) of the Act of 1976, it was
submitted that if the possession of the land was not voluntarily
surrendered by the owner, then the course prescribed by
Section 10(6) of taking forcible possession could be adopted. On the
record, there was no document to indicate that any such notice was
issued under Section 10(6) of the Act of 1976. Reference was made
to the possession receipt executed by the Tahsildar on 15-4-1983 to
submit that the same did not bear the signature of Radhabai. It was
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thus clear that since the possession of the land in question had not
been shown to have been taken in accordance with the modality
prescribed under the Act of 1976, the proceedings in question had
lapsed. Possession had to be taken de-facto and not de-jure. In this
regard, the learned Senior Advocate placed reliance on the decisions
in Vinayak Kashinath Shilkar Versus Deputy Collector and Competent
Authority and others [(2012) 4 SCC 718] and State of U.P. Versus
Hari Ram [AIR 2013 SC 1793] and submitted that the prayers made
in the writ petition ought to be granted.
5. Shri A.A. Madiwale, learned Assistant Government Pleader for
the respondent Nos.1 and 2, opposed the aforesaid submissions. He
referred to the original record of the proceedings under the Act of
1976 and submitted that the possession of the surplus land had been
taken in accordance with law. He referred to the affidavit-in-reply
filed on behalf of the Competent Authority under the Act of 1976 as
well as the adjudication of Special Civil Suit No.94 of 2000 that was
filed against the predecessor of the present petitioner. Since the
present petitioner had deposed in the said proceedings and admitted
that the possession had been lawfully lost, it was not permissible to
contend otherwise. The possession had been taken in accordance
with the provisions of Section 10(5) of the Act of 1976 and hence
there was no question of resorting to the provisions of Section 10(6)
of the Act of 1976. It was prayed that the writ petition be dismissed.
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6. Shri P.P. Kothari, learned counsel for MHADA, also opposed the
submissions made on behalf of the petitioner. According to him, in
the light of the clear admission made by the petitioner while
deposing on behalf of his predecessor in Special Civil Suit No.94 of
2000, the petitioner was precluded from taking a contrary stand in
the present proceedings. The Civil Court had recorded a clear finding
that the possession had been lawfully taken from the predecessor of
the petitioner. Reference was made to Exhibit 134 which was the
evidence of the present petitioner. Since the petitioner and his
predecessor had lost possession in the year 1992 itself, as stated in
Paragraph 15 of Exhibit 134, there was no basis whatsoever for the
petitioner now to contend that the physical possession was never
taken. The petitioner's father Bhaiyyaji @ Madhukarrao did not
challenge the loss of physical possession during his lifetime and this
issue was sought to be raised after his death. The learned counsel
then invited attention to the order of allotment of the aforesaid land
in favour of MHADA vide order dated 9-6-2015. He also invited
attention to the communication dated 1-2-2016 that was issued by
Bhaiyyaji during his lifetime in which it was stated that 40% of the
surplus land could be allotted to the land holder while 60% of such
land could be utilized by MHADA. In the said communication also
the petitioner's father did not raise any grievance of having forcibly
lost possession. Since the possession was voluntarily handed over
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under Section 10(5) of the Act of 1976, there was no question of any
notice being issued under Section 10(6). It was urged that the
petitioners sought to raise various disputed questions and in view of
the decision in Francis Joseph Ferreira and others Versus The
Additional Collector and Competent Authority and another [2010(4)
ALL MR 330], its cognizance could not be taken in writ jurisdiction.
Reference was also made to the decisions in State of Assam Versus
Bhaskar Jyoti Sarma and others [2015 5 SCC 321] and Parvatibai
wd/o Dashrath Behar and another Versus State of Maharashtra and
others [2019 6 Mh.L.J. 743]. It was thus urged that in the light of
the material on record, no relief could be granted to the petitioner.
7. We have heard the learned counsel for the parties at length
and we have also perused the original record that was produced by
the learned Assistant Government Pleader for the respondent Nos.1
and 2. It would be necessary to first refer to certain undisputed facts
that are available on record. Land bearing Survey No.92/1 came to
be bequeathed in favour of one Smt. Radhabai Motghare on 7-8-1940
by virtue of a registered will. Said Smt. Radhabai Motghare sold a
portion of the said land to M/s. Ramhill Co-operative Housing
Society Ltd. Since the land in question was in excess of the
permissible holding, it was subjected to proceedings under the Act of
1976. In that regard, notice under Section 10(3) of the Act of 1976
was issued on 24-2-1983 and thereafter notice under Section 10(5)
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of the Act of 1976 was issued on 29-3-1983. Smt. Radhabai
Motghare expired on 15-9-1983. So also, Bhaiyyaji expired on
14-5-2019. Since the petitioner in the present proceedings seeks
restoration of the aforesaid land to the extent of 10,268 square
meters from Survey No.92/1 by urging that the proceedings under
the Act of 1976 have abated on the ground that the possession
continued with the land-owner, reference is being made only to that
extent of the land which is the subject-matter of the proceedings
under the Act of 1976.
8. In the proceedings under the Act of 1976, Smt. Radhabai
Motghare had submitted her statement under Section 6(1) of the Act
of 1976. By an order dated 4-12-1982, the Competent Authority
permitted Smt. Radhabai Motghare to retain 1,500 square feet land
as her half share. The other half share was shown to be belonging to
Shri Bhaiyyaji Motghare. He filed his statement under Section 6(1)
of the Act of 1976 on 13-5-1983. Said Shri Bhaiyyaji was permitted
to retain 1,500 square feet land after declaring the remaining land to
be in surplus. Bhaiyyaji was the son of Smt. Radhabai. M/s. Ramhill
Co-operative Housing Society Ltd. filed Civil Suit No.94 of 2000
against Bhaiyyaji and his legal heirs as well as other defendants
claiming a declaration that it had absolute title to the subject land by
virtue of sale-deeds dated 1-6-1982, 15-9-1982, 24-9-1982 and
29-9-1982 executed by Smt. Radhabai in its favour. In the said suit,
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the predecessor of the petitioner, Bhaiyyaji, was arrayed as defendant
No.1 while the petitioner was arrayed as defendant No.1(b). In the
said suit, the present petitioner filed his affidavit in lieu of evidence
vide Exhibit 134. He referred to the proceedings under the Act of
1976 and in Paragraph 6 of the said affidavit, he deposed that the
surplus land of Radhabai was allotted to Uranium Corporation of
India, after which the Corporation was in possession since 6-2-1992.
In Paragraph 9, it was stated that on the date of filing of the affidavit,
MHADA was in possession thereof. In Paragraph 15 of the said
affidavit, it was stated that the possession of the said land was taken
by the State Government pursuant to the notice issued under
Section 10(5) of the Act of 1976. Paragraph 15 being relevant is
reproduced hereunder :
"15] Insofar as the surplus land belonging to Smt. Radhabai
is concerned, a Notification under Section 10(1) was
published on 20.01.1983. The said Notification was followed
by Notification under Section 10(3) dated 24.02.1983 with
the result that the surplus land of Radhabai vested with the
State Government. The notice of possession under
Section 10(5) was issued on 15.04.1983 and the possession of
the land was duly taken by the State Government. The said
land (surplus land belonging to Smt. Radhabai) was allotted
and handed over to Uranium Corporation of India.
The physical possession was handed over on 06.02.1992.
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Special Civil Suit No.94 of 2000 came to be decided on
10-1-2023 and the same came to be dismissed on merits.
The voluntary deposition made by the present petitioner in the
said suit indicates that possession of the subject land was taken
pursuant to the notice issued under Section 10(5) of the Act of 1976
by the State Government. There is no grievance whatsoever raised
either by the predecessors of the petitioner in that regard. It is
pertinent to note that the petitioner claims interest in the said land
through Smt. Radhabai and she had also not raised any protest in
that regard.
9. Insofar as the stand of Bhaiyyaji is concerned, it may be noted
that on 1-2-2016, he had made a representation with regard to the
allotment of the surplus land in favour of MHADA. In the said
representation, though it is stated that the possession of the said land
was taken over without following due process of law, it appears that
during his lifetime, no steps were taken in that regard.
It is also pertinent to note that after declaration of a portion of
the land to be surplus, the value of the said land was determined
under Section 11 of the Act of 1976. The said surplus land was
valued at Rs.41,072/- in 1983. From the aforesaid amount,
Rs.10,270/- was received by Smt. Radhabai on 6-2-1992 and
Rs.30,800/- was received by her legal heirs on 15-3-1993. This
would indicate that the amount of compensation towards the value
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of the surplus land was accepted by the legal heirs of Smt. Radhabai
without raising any protest.
10. The aforesaid factual aspects would indicate that during the
life-time of Smt. Radhabai or Shri Bhaiyyaji, no protest was raised to
the taking over of possession of the surplus land pursuant to the
notices issued under Sections 10(3) and 10(5) of the Act of 1976.
These notices were issued on 24-3-1983 and 29-3-1983. It is true
that the notice issued under Section 10(5) of the Act of 1976
indicates that the possession of the said land was to be taken on
15-4-1983 which is prior to thirty days of issuance of the notice. The
endorsement of service of the said notice does not appear to be
available on the record produced before the Court. The question
therefore to be considered is whether in these facts the petitioner is
entitled to any relief in the light of the disputed issue as regards
manner of handing over possession as well as the considerable delay
in approaching this Court by filing the present proceedings.
11. We find from the record that the original land owner Smt.
Radhabai and thereafter Shri Bhaiyyaji during their life-time did not
raise any protest to the taking over of possession of the subject land.
On the contrary, the amount of compensation determined as value of
the surplus land was accepted. The present petitioner has failed to
explain the delay in raising a challenge for seeking a declaration as
regards abatement of the present proceedings. Though the
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possession was lost in the year 1983, the legal redress is now being
sought after almost forty years since this writ petition has been filed
on 31-3-2023. Even if the petitioner seeks a relief that the allotment
of the land in favour of MHADA as made on 9-6-2015 be set aside, it
is seen that the principal relief sought is with regard to declaration of
abatement of the proceedings under the Act of 1976. The Division
Bench in Francis Josheph Ferreira and others (supra) has held that
such a disputed issue as regards the manner of losing possession
cannot be adjudicated in writ jurisdiction.
At this stage, reference can be made to the decision in
Kapilaben Ambalal Patel and others Versus State of Gujarat and
another [(2021) 12 SCC 95] arising out of proceedings held under
the Act of 1976. The original owners as well as their successors
sought to raise a challenge to the manner of taking over possession of
the surplus land on 20-3-1986. It was their case that without
following the procedure prescribed by Section 10(5) of the Act of
1976, the possession was shown to have been taken from them. The
learned Single Judge allowed the writ petition preferred by the
land-owners and granted the declaration as sought. The Division
Bench in appeal however considered the aspect of delay and noticed
that the panchanama dated 20-3-1986 was sought to be questioned
only in the year 2001 which was after about 14 years. After referring
to various decisions including the decisions in Shivgonda Anna Patil
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Versus. State of Maharashtra [(1999) 3 SCC 5] and Municipal
Council, Ahmednagar Versus Shah Hyder Beig [(2000) 2 SCC 48],
the appeal was allowed and the writ petition was dismissed on the
ground that a belated challenge was being raised by the land-owners.
The said decision was challenged before the Hon'ble Supreme Court.
It was found that after possession was shown to be taken from the
land-owners on 20-3-1986, the proceedings under Section 11 of the
Act of 1976 were undertaken in which the land-owners were noticed.
There was no objection raised to the aspect of taking over possession
in an improper manner. It was held that there was no explanation
whatsoever from the land-owners for not disputing the manner in
which possession was taken. After referring to the decision in Larsen
& Toubro Ltd. Versus State of Gujarat [(1998) 4 SCC 387], the
Hon'ble Supreme Court declined to reverse the conclusion recorded
by the Division Bench that the writ petition preferred by the
land-owners was hopelessly delayed and suffered from laches. The
ratio of the aforesaid decision is clearly attracted herein.
12. We therefore find firstly that there is inordinate delay that did
not explain as well as laches on the part of the petitioner in
approaching this Court for seeking a declaration as to abatement of
the proceedings under the Act of 1976. Further, the original
land-owners during their life-time did not raise any protest to the
manner of taking over possession of the said land under Section
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10(5) of the Act of 1976. Coupled with the aforesaid is the
admission of the petitioner in unequivocal terms as regards the
manner of voluntary possession being taken over by the State
Government after the land was declared as surplus. Though the
learned Senior Advocate for the petitioner sought to buttress his
submissions with regard to the illegality in the manner of taking over
possession by relying upon the decisions in Vinayak Kashinath
Shilkar and Hari Ram (supra), we find that the facts of the present
case disentitle the petitioner from any discretionary relief under
Article 226 of the Constitution of India since the claim suffers from
inordinate delay and laches besides seeking adjudication of a
disputed question of fact. As we have found that the petitioner is not
entitled to the relief of declaration of abatement of the proceedings
under the Act of 1976, it is not necessary to go into the challenge
raised to the communication dated 9-6-2015 issued by the Urban
Development Department making available the aforesaid land to
MHADA as well as the communication dated 6-11-2015 issued in that
regard.
13. For aforesaid reasons, we are not inclined to grant the relief
sought by the petitioner herein. The writ petition is therefore
dismissed. Rule stands discharged with no order as to costs.
LANJEWAR (ABHAY J. MANTRI, J.) (A.S. CHANDURKAR, J.)
Signed by: Prashant D. Lanjewar
Designation: Senior Pvt. Secretary
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Date: 02/12/2023 13:36:44
