Bombay High Court
Shri Shridhar S/O Shankarrao Hawale, ... vs State Of Mah. Thr. Principal Secty., ... on 7 May, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:5145-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5183 OF 2008
Shri Shridhar s/o Shankarrao Hawale,
Aged about 45 years,
Occupation - Business & Agriculture,
R/o Ravi Nagar, Nagpur. .... PETITIONER
VERSUS
1) State of Maharashtra,
through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) Additional Commissioner,
Nagpur Division, Nagpur.
3) Additional Collector & Competent
Authority, U.L.C., Collectorate
Compound, Civil Lines, Nagpur.
4) Shaeen Parveen w/o Mohd. Jafar,
R/o Plot No.8, Harpur Nagar,
Tajbagh, Nagpur.
5) Union Bank of India,
Branch at Dhantoli, Nagpur,
through its Authorised Officer/Manager. .... RESPONDENTS
________________________________________________________________
Mr. C.S. Kaptan, Senior Counsel a/b. Mr. P.S. Chawhan & Mr. H.S. Puranik,
Counsel for the petitioner,
Mr. H.D. Marathe, A.G.P. for respondent Nos.1 to 3,
Mr. R.L. Khapre, Senior Counsel a/b. Mr. A.S. Mehadia, Counsel for
respondent No.4,
Mr. S.D. Ingole, Counsel for respondent No.5,
Mr. S.P. Dharmadhikari, Senior Counsel a/b. Mr. R.A. Bhandarkar, Counsel
for the applicant in CAW No.1005/2001.
________________________________________________________________
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CORAM : NITIN W. SAMBRE &
ABHAY J. MANTRI, JJ.
DATE : 07-05-2025
JUDGMENT :
(Per : ABHAY J. MANTRI, J.)
Heard. Rule. Heard finally with the consent of the learned Counsel
for the parties.
2. The petition questions the order dated 24-07-2008, passed in
Appeal No.3/ULC/2007-08 by the Additional Commissioner/Appellate
Authority, ULC, Nagpur, by which the appeal was disposed of as abated.
Also, it seeks that the proceedings in ULC Case No.17/1997 before the
Additional Collector and Competent Authority, ULC, Nagpur including
order dated 07-08-2007 passed in it be held as abated, whereby it was
declared that the sale-deed bearing No.3566/2003 as invalid/illegal and
cancelled the same as per Section 5(3) of the Urban Land (Ceiling and
Regulation) Act, 1976 (for short, "Act of 1976").
3. FACTUAL MATRIX :
(a) Late Mohd. Samad Mohd. Isaq was the sole and exclusive
owner of the land bearing field Survey Nos. 93/4 and 93/5, admeasuring
1.60 H.R. and 1.21 H.R. respectively, situated at Mouza Besa, Tahsil
Nagpur Rural, District Nagpur (hereinafter referred to as " the lands"). The
said lands were affected by the provisions of the Act of 1976. Therefore,
he had applied to the Competent Authority for exemption under Section
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20(1)(a) of the Act of 1976 in respect of the surplus vacant land to
develop a housing scheme, which was registered as ULC Case
No.17/1997. The said lands were converted for non-agricultural purposes
by order dated 28.11.2000, in Revision No. 69/NAP-34/2000. The
Competent Authority passed an order under Section 8(4) of the Act of
1976, declaring 1,500 square meters surplus vacant land as retainable
land by the owner.
(b) The petitioner, being a developer and contractor, was
interested in purchasing the said lands. Accordingly, by registered sale
deed dated 10-09-2003, he purchased the said lands for a consideration of
Rs.75,00,000/- (Rs. Seventy-Five Lakhs).
(c) On 26-08-2006, the vendor Mohd. Samad Mohd. Isaq expired
unmarried and issueless; however, one Mohd. Yusuf claimimg to be a
nephew of Mohd. Samad Mohd. Isaq filed a complaint before respondent
No.3 on 07-06-2007, contending that the petitioner had illegally
purchased the property, and the sale deed was to be declared as null and
void by invoking the provisions of Section 5(3) of the Act of 1976.
(d) By order dated 07-08-2007, respondent No.3 held that the
sale transaction of surplus land by the original owner in favour of the
petitioner, as per the sale deed dated 10-09-2003, was declared illegal and
set aside under Section 5(3) of the Act of 1976.
(e) Aggrieved by the said order, the petitioner preferred an
appeal before respondent No.2, the Additional Commissioner, under
Section 33 of the Act of 1976 and obtained a stay on 12-10-2007. During
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the pendency of the appeal, on 29.11.2007, the Government of
Maharashtra, vide its resolution under Article 252 of the Constitution of
India, adopted the Urban Land (Ceiling and Regulation) Repeal Act, 1999
(hereinafter referred to as the "Repeal Act of 1999"), thereby repealing the
Act of 1976. Therefore, the Appellate Authority, i.e. respondent No.2,
Additional Commissioner, vide order dated 24-07-2008, held that in view
of the enactment of the Repeal Act 1999, the appeal stands disposed of as
abated. Therefore, the petitioner is challenging the same in this petition.
4. Mr. C.S. Kaptan, learned Senior Counsel for the petitioner, has
vehemently argued that the entire surplus land admeasuring 26600 square
meters was duly exempted under Section 20(1)(a) of the Act of 1976 vide
order dated 18-10-2000. In such circumstances, the question of the
applicability of Section 5(3) of the Act of 1976 does not arise, and
therefore, the cancellation of the sale deed by the authority is illegal.
5. He further contended that the vendor furnished a statement under
Section 6 of the 1976 Act to the Competent Authority. Accordingly, a
notification was published under Section 10(1) regarding the excess
vacant land. Thereafter, the State Government passed an order of
exemption under Section 20 of the Act of 1976, indicating that the
Competent Authority lacked the power or jurisdiction to entertain the
application under Section 5(3) of the Act of 1976. Hence, the order dated
07-8-2007 is without jurisdiction and bad in law.
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6. In fact, the Additional Collector and the Competent Authority was
bound by the order of exemption passed by the Government in respect of
excess vacant land.
7. He further drew our attention to Clause Nos.13, 14, 16, 17 and
18 of the exemption order dated 18-10-2000 and Clause No.9 of the sale
deed dated 10-09-2003 and argued that even assuming that there is
breach of any conditions of the exemption order, the Competent Authority
cannot exercise any power under the Act of 1976 unless the State
Government first withdraws the order of exemption; however, respondent
No.3-Competent Authority by invoking provisions of Section 5(3) of the
Act of 1976 has committed grave error in law by canceling the sale-deed.
8. He further propounded that once the land stands exempted under
Section 20(1)(a) of the Act of 1976, the restriction on transfer contained
in Chapter-III of the principal Act gets lifted, thereafter the only restriction
which remains on transfer, if any, is by virtue of the conditions of
exemption order and not otherwise.
9. He further argued that notice of hearing was issued in the name of
the original vendor, Mohd. Samad Mohd. Ishaq, and a copy was given to
the petitioner, but the petitioner's appeal could not be decided due to
repealing the Act of 1976. Therefore, the Appellate Authority could not
determine the question of the order dated 07-08-2007 in the appeal.
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10. He pointed out provisions of Section 3 of the Repeal Act of 1999
and submits that Section 3 is a saving clause under the Repeal Act of 1999
and in view of the saving clause, the order under Section 20(1)(a) of the
Act of 1976 are saved and action, if any, regarding breach of any condition
of the exemption order can be taken by the State Government to revoke,
modify or relax any such condition; that being so, passing of the order by
respondent No.3 Competent Authority is without jurisdiction.
11. During the argument, he took us through the provisions of Sections
5(3), 10, and 20 of the 1976 Act, as well as Section 3(1) of the Repeal Act
of 1999.
To buttress his submission, he has relied on the decisions in T.R.
Thandur V. Union of India and Others, AIR 1996 SC 1643 particularly
paragraph Nos.8 and 9 and Sitabai Ramchandra Lonkar V. State of
Maharashtra, 2015(5) Bom.C.R. 310, which followed the Full Bench
judgment of this Court in Maharashtra Chamber of Housing Industry, Mumbai
V. State of Maharashtra, 2014(6) Mh.L.J. 829 and submitted that in view of
the mandate laid down in the decisions above, Section 5(3) of the Act of
1976 is not applicable and the Competent Authority could not have
exercised power thereunder to cancel the sale deed.
12. Lastly, he submitted that the respondents are relying on the decision
of this Court in Letters Patent Appeal No.257/2003 (Smt. Indirabai Bhimrao
Lanjewar and others v. Additional Commissioner, Nagpur and others). This
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Court, without considering the mandate laid down by the Hon'ble Apex
Court in T.R. Thandur (supra), passed the said order. Therefore, the said
order is per incuriam and has no binding precedent. Hence, he urges that
the petition be allowed.
13. As against this, Mr. R.L. Khapre, learned Senior Counsel for
respondent No.4-legal heir of the original vendor, drew our attention to
Condition No.1 of the exemption order dated 18-10-2000 and submitted
that the same has to be read with Section 20(1)(a) of the Act of 1976. He
further argued that the land exempted shall be used to provide plots and/
or construct tenements in accordance with the terms and conditions of the
exemption order, and any change made to the use of the land shall
amount to a breach of those conditions. The said person can sell the plots
to the intending purchasers within two years from the date of the said
exemption order. However, the vendor/owner has sold the said lands, as
per the sale deed dated 10-09-2003, in contravention of the terms and
conditions of the said TD Scheme for surplus land; however, possession of
the land was never handed over to the petitioner.
14. The legal representative of the original owner, Mohd. Yusuf filed a
complaint with respondent No.3, stating that the sale deed dated
10-09-2003, executed in favour of the petitioner, was illegal and contrary
to the terms and conditions of the order dated 18-10-2000. Furthermore,
the passing of the order dated 07-08-2007 by respondent No.3, declaring
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the sale deed null and void, was just and proper. He further pointed out
Conditions Nos. 2 and 6 and submitted that Condition No.6 stipulates a
time limit of two years for the sale of the plots and a period of 5 years for
utilising the lands in question by the person/purchasers from the date of
the exemption order. Therefore, the execution of the sale deed in 2003 did
not comply with Condition No.6. Consequently, the petitioner is not
entitled to claim relief on the grounds of equity.
15. He further contended that the exemption was granted to the
original owner, not in favour of the purchaser, i.e., the petitioner. The
scheme in the order dated 18-10-2000 does not permit the sale of the
entire land to a single person. Therefore, passing the order dated
07-08-2007, declaring the sale deed null and void, is just and proper.
16. The exemption was granted in favour of the owner/vendor;
therefore, the petitioner, being the purchaser, has no locus standi to
challenge the order. The petitioner had purchased the lands for his
personal use, contravening the terms and conditions of the exemption
order.
17. The learned Senior Counsel to substantiate his contentions has
relied upon the following decisions:
(1) Maharashtra Chamber of Housing Industry, Mumbai and others V.
State of Maharashtra and another, (Full Bench) 2014(6) Mh.L.J.
829; (Para 162 onwards);
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(2) Ganpatlal Baldeo Chamedia V. Pusushottam Ramgopal Bajoria and
another, 1985 Mh.L.J. 123;
(3) N. Mani V. Sangeetha Theatre and Others, AIR Online 2004 SC 125;
(Para No. 6,8 &9);
(4) Karnataka State Road Transport Corporation and another Vs. S.G.
Kotturappa and another, (2005) 3 SCC 409. (Para No.24).
(5) T. R. Thandur Vs. Union of India, AIR 1996 SC 1643 (Para No. 9 to
11);
(6) Smt. Indirabai Bhimrao Lanjewar & Ors. Vs. Additional
Commissioner & Ors. L. P. A. No. 257/2003;
(7) The Vice Chancellor, Jammu University & Anr. Vs. Dushinant Kumar
Rampal, AIR 1977 SC 1146, (Para No. 8).
18. Mr. S.P. Dharmadhikari, the learned Senior Counsel for the
intervenor, Khairunissa, drew our attention to Clauses Nos. 2 and 3 of the
exemption order and submitted that, by the order dated 07-08-2007, the
respondent No.3-the Competent Authority, declared the sale deed bearing
No.3566/2003 null and void. The Appellate Authority, i.e., the Additional
Commissioner, by an order dated 24-07-2008, disposed of the appeal as
abated. According to the Repeal Act of 1999, Section 20 of the Act of 1976
has been repealed. Therefore, the sale deed has been held to be illegal for
breaching the conditions, subject to which the exemption was granted,
and therefore, it is just and proper. He has also pointed out paragraph
No.9 of the judgment in T.R. Thandur (supra) and also relied on the
decision of the Division Bench of this Court in Letters Patent Appeal
No.257/2003 in Writ Petition No.1181/2003, particularly paragraph No.11,
and submitted that in view of the mandate laid down in the said decision,
the sale was made in breach of the conditions attached to the exemption
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order and, therefore, the transfer would be invalid, and submitted that no
interference is required in this petition.
19. Mr. H.D. Marathe, learned Assistant Government Pleader for
respondent Nos.1 to 3, has pointed out provisions of Section 4 of the
Repeal Act of 1999 and submitted that since no protection was given to
Section 33 of the Act of 1976, hence after 29-11-2007 the Appellate
Authority was not in existence and, therefore, the Appellate Authority was
unable to pass any order due to lack of jurisdiction. However, the order
passed by the Competent Authority dated 24-07-2007 is just and proper, as
the original owner has not followed the terms and conditions of the
exemption order and has committed a breach of the said conditions.
Therefore, the petition is liable to be dismissed.
20. Mr. S.D. Ingole, learned Counsel for respondent No.5, has argued
that the petitioner is a Managing Partner of M/s. DSH Construction
Company who availed various credit facilities from it to the extent of
Rs.17,35,00,000/- (Rs. Seventeen Crores Thirty-Five Lakhs) since 2004
and pursuant to the said loan facility, the petitioner and his partnership
firm mortgaged their immovable properties in favour of the bank by
executing registered mortgage deed dated 15-01-2004. By executing the
mortgage deed, the borrower firm and the petitioner created a security
interest in favour of the respondent No.5 over the said properties. The
bank has also initiated the proceedings under the provisions of the
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SARFAESI Act and has legal charge over the disputed property. Respondent
No.2 passed the impugned order without giving prior notice to
Respondent No.5; therefore, said order is illegal, arbitrary, and contrary to
the principles of natural justice. Consequently, he submitted that if the sale
deed is cancelled, respondent No.5 could not recover the huge outstanding
amount against the petitioner and his firm. Therefore, he supported the
petitioner's claim and urged that a suitable order be passed to protect
public funds.
21. We have appreciated the rival contentions of the parties and
perused the impugned orders and record. We have also gone through the
written notes of the arguments submitted by the respective parties and the
decisions relied on in support of their submissions.
22. Having considered the same, at the outset, the following points
arise for our determination:-
(1) Whether the original land owner committed breach of conditions
of the exemption order dated 18-10-2000 passed under Section
20(1)(a) of the Act of 1976 while transferring the lands in favour
of the petitioner vide sale-deed dated 10-09-2003?
(2) Whether passing of the order dated 07-08-2007 by the Competent
Authority declaring the execution of the sale-deed by the original
land owner in favour of the petitioner vide sale deed bearing
No.3566/2003 as illegal and void is just and proper?
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(3) Whether the order dated 24-07-2008 passed by the Appellate
Authority/Additional Commissioner, Nagpur in Appeal No.3/ULC/
2007-08 as abated is just and proper?
(4) Is any interference required in the impugned orders in the Writ
Petition?
23. To determine the controversy in the matter, it would be proper to
reproduce Sections 5(3) and 20 of the Act of 1976, as well as Sections 3
and 5 of the Repeal Act of 1999.
"5. Transfer of vacant land - (1) -------
(2) ---------
(3) In any State to which this Act applies in the first instance and
in any State which adopts this Act under clause (1) of article 252 of the
Constitution, no person holding vacant land in excess of the ceiling
limit immediately before the commencement of this Act shall transfer
any such land or part thereof by way of sale, mortgage, gift, lease or
otherwise until he has furnished a statement under section 6 and a
notification regarding the excess vacant land held by him has been
published under sub-section (1) of section 10; and any such transfer
made in contravention of this provision shall be deemed to be null and
void"
"20. Power to exempt - (1) Notwithstanding anything contained in
any of the foregoing provisions of this Chapter,-
(a) where any person holds vacant land in excess of the
ceiling limit and the State Government is satisfied, either on its own
motion or otherwise, that, having regard to the location of such land,
the purpose for which such land is being or is proposed to be used and
such other relevant factors as the circumstances of the case may
require, it is necessary or expedient in the public interest so to do, that
Government may, by order, exempt, subject to such conditions, if any,
as may be specified in the order, such vacant land from the provisions
of this Chapter;
(b) where any person holds vacant land in excess of the ceiling
limit and the State Government, either on its own motion or otherwise, is
satisfied that the application of the provisions of this Chapter would
cause undue hardship to such person, that Government may, by order,
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exempt, subject to such conditions, if any, a s may be specified in the
order, such vacant land from the provisions of this Chapter:
Provided that no order under this clause shall he made unless
the reasons for doing so are recorded in writing.
(2) if at any time the State Government is satisfied that any
of the conditions subject to which any exemption under clause (a) or
clause (b) of sub-section (1) is granted is not complied with by any
person, it shall be competent for the State Government to withdraw,
by order, such exemption after giving a reasonable opportunity to
such person for making a representation against the proposed
withdrawal and thereupon the provisions of this Chapter shall apply
accordingly."
Sections 3 and 5 of the Repeal Act of 1999 -
3. Savings - (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of
section 10, possession of which has been taken over by the State
Government or any person duly authorised by the State Government
in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-
section (1) of section 20 or any action taken thereunder,
notwithstanding any judgment of any Court to the contrary;
(c) any payment made to the State Government as a
condition for granting exemption under sub-section (1) of section 20.
(2) Where-
(a) any land is deemed to have vested in the State
Government under sub-section (3) of section 10 of the principal Act,
but possession of which has not been taken over by the State
Government or any person duly authorised by the State Government
in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with
respect to such land,
then, such land shall not be restored unless the amount paid, if any,
has been refunded to the State Government.
5. Repeal and saving - (1) The Urban Land (Ceiling and
Regulation) Repeal Ordinance, 1999 (Ord. 5 of 1999) is hereby
repealed.
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(2) Notwithstanding such repeal, anything done or any action
taken under the said Ordinance shall be deemed to have been done or
taken under the corresponding provisions of this Act
24. A bare reading of Section 20(1) of the Act of 1976 reveals that by
virtue of Section 20, the State Government has the power to pass order for
exempting the vacant land held in excess of the ceiling limit from the
provisions of the Chapter in which Section 20 is included in the statute.
Section 20 is in Chapter III of the Act of 1976. The section begins with a
non obstante clause; as such, the provisions override the foregoing
provisions in Chapter III of the Act of 1976, which comprises Sections 3 to
19. There is no ambiguity in this regard as specified in sub-section (1) of
Section 20. Section 20 contains the power to exempt the vacant lands in
excess of the ceiling limit. Section 5(3) deals with; (a) for the vacant land
in excess of the ceiling limit, (b) at the first instance when the Ceiling Act
is made applicable, (c) it prohibits a land owner from transferring the land
unless such land owner furnishes statement under Section 6 and a
notification regarding acquisition of the excess vacant land to be published
under Section 10(1) of the Act of 1976.
25. Section 3 of the Repeal Act of 1999 is the saving clause. In view of
the saving clause 3(1)(b), the orders of granting exemption under Section
20(1) or any action taken thereunder cannot be affected by the provisions
of the Repeal Act of 1999.
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26. As per Section 4 of the Repeal Act of 1999 , all the proceedings
relating to any order made or purported to be made under the principal
Act pending immediately before the commencement of this Act, before any
Court, Tribunal, Authority shall abate except the proceedings relating to
Sections 11,12,13 and 14 of the principal Act.
27. After perusal of the impugned order dated 07-08-2007 passed by
respondent No.3-Competent Authority, it reveals that the Competent
Authority, after considering the conditions incorporated under the
exemption order dated 18-10-2000, held that the original land owner, in
contravention of Condition No.16, sold the lands in favour of the petitioner
and, therefore, declared the said sale deed as illegal and void.
28. The learned Senior Counsel for the petitioner argued that the
Competent Authority had exercised his powers under Section 5(3) of the
Act of 1976; however, the same was not available to him as the Competent
Authority had already passed the exemption order under Section 20(1)(a)
of the Act of 1976 and without withdrawing the said exemption order, the
Competent Authority was not empowered to exercise the power under
Section 5(3) of the Act of 1976 as the non obstante clause under Section
20 overrides the foregoing provisions of Chapter III i.e. Sections 3 to 19 of
the Act of 1976. Therefore, he contended that passing of the said
impugned order is contrary to the settled position of law as laid down by
the Hon'ble Apex Court in T.R. Thandur's judgment (supra).
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As against this, the learned Senior Counsel for the respondent
No.4 and intervenor vehemently contended that the Competent Authority,
after considering the terms and Condition Nos.2, 3, 16, 17 and 18 of the
exemption order, rightly declared that the execution of the sale deed by
the original land owner in favour of the petitioner is illegal and void.
They also argued that merely quoting the wrong provision of law in the
notice and the impugned order does not make the notice and the
impugned order illegal or against the basic aim and object of the Act of
1976. Therefore, he canvassed that mere mentioning of the incorrect
provision does not vitiate the impugned order.
29. To substantiate their contentions, they have relied upon the
decision of this Court dated 16-11-2015 in Letters Patent Appeal No.
257/2003 (Smt. Indirabai Bhimrao Lanjewar and others V. Additional
Commissioner, Nagpur and others) (supra) and propounded that the facts
in the said case are identical to the case in hand and, therefore, the
present case is covered by the law laid down in the said L.P.A.
30. Having considered the rival submissions, we would like to
reproduce Conditions No.1,2,3,13,16,17 and 18 :
"1. The land exempted under the execution order shall lie used
for the purpose of providing plots and/or constructions of tenements
in accordance with the terms and conditions of this exemption order .
Any change made in the use of the land shall amount to a breach of those
conditions.
2. The said person makes full utilization of the land so
exempted, for the aforesaid purpose, "by providing plots on the said
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land in the following manner.
Actual Plot Area Plots Area (sq.mt.)
i. 33.34% Up to 100 sq.mt.
ii. 33.33% Up to 250 sq.mt.
Iii. 33.33% Up to 500 sq.mt.
2 (a). In ease plots are amalgamated for the construction of flats,
1/3rd of the net building surplus area under plots should be used for
the construction of a plinth not exceeding 100 sq.mt.
3. The said persons shall first hand over 15%,30%,25%, and 50%
of the land after excluding the first 4000 sq ft. i.e. 5050.00 sq.mt. free
of cost and free from all encumbrances to the Court before providing
plots and/or commencing construction of tenements on the exempted
land. The said area of the land to be surrendered shall be comparable
to the remaining land permitted to be retained by the said in all
respects, such as access frontage by the etc. in the event of any
dispute. Government's decision in this respect shall be binding on the
said person.
13. If at any time, the State is satisfied that there is a breach of
any of the conditions mentioned in this order , it shall be competent to
the State Government to withdraw by an order the exemption from the
dap specified in the said order.
Provided that, before making any such order, the State Govt.
shall give reasonable opportunity to the person whose lands are
exempted for making representation against the proposed withdrawal.
16. The said person is permitted to transfer the total/part area
under the scheme submitted on surplus land by him/her to any group
of purchasers intending to propose a Co-operative Housing Society
(under the Co-operative Society's Act, 1960).
17. Prior to such transfer, the land holder shall after first hand
over to Govt. 15%/30%25%/50% as mentioned in Condition No.3
above.
All above conditions shall be binding on the transferee, i.e.
Proposed/Regd. Co-operative Housing Society and its members, the
Promoter/Builder, and his purchasers.
18. The Transferee Housing Society shall submit a list of
subsequent members of society/purchasers of plots to this office
within two years and promoter/builder Agency shall submit a list of
subsequent purchasers of tenements of this office within 5 years from
the date of this order along-with relevant documents (i,e, Affidavit
etc.)"
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31. Similarly, we would like to reproduce the relevant part of the sale
deed dated 10-09-2003 as under :
THIS DEED OF SALE is made on the 10th Day of SEPTEMBER,
2003, BETWEEN Md SAMAD, Md ISSAQ, Age 42 years, Occupation-
Business, Resident of Wardha Road, Nagpur. Tahsil and District
NAGPUR, hereinafter called the VENDER, which expression shall
repugnant to the context or meaning thereof, always mean and
include the said VENDER as well as his legal heirs, legal
representatives, executors, administrators, successors and assigns of
the one part.
SHRI SHRIDHAR S/o SHANKAR HAWALE. Aged 46 years,
Occupation -Business, Resident of Ravi Nagar Square. Nagpur, Tahsil
and District NAGPUR, hereinafter called the PURCHASER, which
expression shall, unless repugnant to the context or meaning thereof,
always mean and include the said PURCHASER, as well as his heirs,
legal representatives, executors, administrators, successors & assigns
of the OTHER PART,
WHEREAS, for a variety of reasons and other good causes,
the Vendor has now decided to sell. he said property to any willing
buyer and to utilise the Sale Proceeds in his own interests and for the
benefit of his family members; AND
NOW THEREFORE THIS DEED OF SALE WITNESSETH AS FOLLOWS:
1. THAT in pursuance; of the said Agreement and in
consideration of the payment of Rs. 75,00 000/- (Rupees Seventy Five
Lac) Only paid by the Purchaser to the Vendor in the manner
appearing hereinbelow, the receipt whereof the Vendor does hereby
admit and acknowledge, the Vendor as me full and absolute owner in
possession thereof hereby grant, transfer, convey assure and assign by
way SALE to the Purchaser ALL THAT piece and parcel of the land
containing by admeasurements 1.60 Hectors and 1.21 Hectors and
excluding therefrom the land admeasuring 5500 Sq Mtrs of Government
Share and including the retainable land of 1,500 Sq Mtrs out of the entire
land bearing Survey Nos.93/4 and 93/5 of Mouza- SESA, PH No.38 held
in Class 1 rights Land Revenue of Rs. 7.44 and Rs 563 respectively,
situated at Besa in Tahsil - NAGPUR (RURAL) and District-NAGPUR
and which is more particularly described in the schedule hereunder
written TO HOLD SAME TO AND UNTO THE PURCHASER absolutely
and for ever free from encumbrances of all kinds whatsoever and also
free from payment of Agriculture Assessment , taxes other cases, due
duties and other outgoing payable till date.
8. THAT the Vendor has done no act whereby the property
hereby sold is encumbered in any way or whereby they are debarred
from transferring the same by way of sale to the Purchaser. The
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Vendor further declares that there is no legal impediment of what-so-
ever nature for transfer of the said property by them in favour of the
Purchaser."
32. It is pertinent to note that the Act of 1976 was passed with a
laudable social objective. The main purpose was to prevent the
concentration of urban land in the hands of few and to provide affordable
housing to the economically weaker sections. On the contrary, it has
pushed up land prices, practically brought the housing industry to a
standstill and provided opportunities for corporations. There is a
widespread demand to remove this irritant from land assembly and
construction activity. One of the objectives of the enactment is to promote
group housing with a view to providing housing accommodation to more people
by promoting group housing schemes instead of the same area of land being
utilised to house a smaller number of people. The paramount consideration of
the enactment of the Act is the public interest.
33. Perusal of Condition Nos. 2, 3, 16 to 18 indicates that the
exemption order was passed under Section 20(1)(b) of the Act of 1976
with the intent to promote the group of housing society with a view to
provide housing accommodation to more people. These were the prime
conditions of the exemption order. However, perusing the sale deed reveals
that the original land owner sold the said land to the petitioner contrary to
the said conditions of the exemption order. The assertion in the sale deed
does not indicate that the land owner sold the property in favour of the
20 wp5183.08.odt
petitioner, with the object of the enactment being to promote the group
housing schemes. But, on the contrary, it denotes that the same was
executed for the absolute use of the petitioner and the benefit of his
family members. Thus, it is evident that the land owner executed the sale
deed of the lands in contravention of the conditions of the exemption
order. Hence, we answer point No.1 in the affirmative.
34. The learned Senior Counsel for the petitioner drew our attention
to the impugned order dated 07-08-2007 and notice dated 18-07-2007
issued by the Competent Authority and strenuously argued that the notice
as well as the impugned order indicate that notice was issued under
Section 5(3) of the Act of 1976. Accordingly, the order was passed under
Section 5(3) of the Act of 1976. Therefore, the passing of the said order is
illegal since the Competent Authority had no power to pass the order
under Section 5(3) of the Act of 1976. Hence, the said order is bad in law
and without jurisdiction.
35. The notice as well as the impugned order clearly indicate that they
were issued and passed under Section 5(3) of the Act of 1976. What is
material to note that, we have to consider the averments in the notice and
the reasons stated in the impugned order to construe the intention of the
Competent Authority to issue the said notice and the passing of the
impugned order.
21 wp5183.08.odt
36. The notice was issued to the land owner indicating that he had
sold the lands in question in contravention of Conditions Nos. 16 and 18
of the exemption order without obtaining the prior permission from the
Competent Authority. A copy of the said notice was addressed to the
petitioner. However, neither the petitioner nor the landowner submitted an
explanation/reply to the said notice. Similarly, in the impugned order, the
Competent Authority has categorically observed that the land owner sold
the lands to the petitioner in contravention of Condition No.16 of the
exemption order and, therefore, the said transaction is illegal and void.
Though the Competent Authority has referred to Section 5(3) of the Act of
1976, that does not mean that, pursuant to the mandate of Section 5(3),
the notice was issued or the order was passed. On the contrary, it appears
that due to contravention of the conditions of the exemption order, notice
was issued to the land owners, a copy was supplied to the petitioner, and
the impugned order was passed. Therefore, it cannot be said that the
impugned notice was issued and an order was passed under Section 5(3)
of the Act of 1976. Similarly, we are of the view that merely referring to
the inappropriate provision of the law does not mean that the notice and
order impugned are illegal and against the basic aim and object of the said
Act. Likewise, it is a settled position of law that an erroneous reference to
the provision of the law does not vitiate the impugned order. As such, we
do not find substance in the submissions of the learned Senior Counsel for
the petitioner in that regard.
22 wp5183.08.odt
37. In the written notes of argument, the petitioner, in paragraph No.
21, stated that notice dated 18-07-2007 was issued to Mohd. Yusuf and
not to the petitioner. Hence, there was no valid service of notice on the
petitioner, granting him an opportunity of hearing before passing the
impugned order. It is pertinent to note that the petitioner did not dispute
the receipt of the notice to him. On the contrary, in para No.17 of the
petition, he categorically stated that " the show cause notice dated
18-07-2007 issued to the petitioner states that no permission under
Condition Nos.16 and 18 of the exemption order was obtained before the
transfer of the lands and, therefore, it could be declared null and void.
Three days' period to show cause notice, as contemplated in the said
notice, is very harsh and unreasonable. The petitioner submits that, hence,
no proper opportunity was given to the appellant to contest the matter or
to take necessary steps in the matter ." The averments in the above
paragraph themselves show that he received the notice. Besides, the land
owner has committed a breach of the conditions; therefore, notice was
rightly addressed to him, and a copy was provided to the petitioner.
Consequently, we do not find substance in the argument of the learned
Senior Counsel in that regard.
38. Perused the decisions in T.R. Thandur and Letters Patent Appeal
No. 257/2003 (supra). As such, we would like to reproduce relevant para
Nos. 8, 9 and 10 of T.R. Thandur's case, which read as under :
23 wp5183.08.odt
"8. We would first construe Section 20 of the Act to ascertain its
meaning. It is obvious that, there being no question of the constitutional
validity of the provision, an attempt has to be made to ascertain the true
meaning of every part of Section 20. Section 20 contains the power to
exempt. It has two sub-sections. Sub-section (1) begins with the non-
obstante clause "Notwithstanding anything contained in any of the
foregoing provisions of this Chapter", after which occur Clauses (a) and
(b) therein which provide for exemption, "subject to such conditions, if
any, as may be specified in the order", of "such vacant land from the
provisions of this Chapter". The non-obstante clause clearly indicates that
Section 20 overrides the foregoing provisions of Chapter III, that
is, Sections 3 to 19 of the Act. This is reaffirmed in clauses (a) and (b)
wherein the concluding part in each is "Government may, by order,
exempt, subject to such conditions, if any, as may be specified in the
order, such vacant land from the provisions of this Chapter". The effect of
the non-obstante clause at the beginning of sub-section (1) and the
concluding words in Clauses (a) and (b) undoubtedly is that on
exemption being granted subject to the conditions specified in the order
granting the exemption, such vacant land is exempted from the
provisions of Chapter III which contains Sections 3 to 24, in spite of the
provisions in Sections 3 to 19. There is no ambiguity in this behalf in
sub-section (1). The plain language of the provision leaves no room for
any ambiguity. Thus, if the logical outcome of the exemption granted
subject to the specified conditions is to lift the restriction on transfer of
the exempted land, then it has to be accepted. However, the imposition of
conditions attached to the exemption and the power of withdrawal of the
exemption under Sub-section (2) is intended to control the transfer in
such cases. It has to be seen whether this plain construction of Section 20
must be abandoned on any settled rule of construction.
9. The condition precedent for granting exemption under clause (a)
or clause (b) must, however, exist, but on the exemption being granted
thereunder, the logical consequence of the exemption as indicated must
follow. It must follow that if the restriction on transfer of the vacant land
in excess of the ceiling limit is only because of any provision contained in
Chapter III in Sections 3 to 24, then the effect of the exemption under
Section 20 is to lift even that embargo. Sub-section (2) gives to the State
Government power to withdraw the exemption under clause (a) or clause
(b) of sub-section (1) if it is satisfied in the manner indicated that any of
the conditions subject to which the exemption has been granted is not
complied with. The power of withdrawal of exemption in sub-section (2)
is to ensure full compliance of the conditions subject to which the
exemption is granted. The restriction on transfer may be imposed by such
a condition. In that event, the restriction is by virtue of the condition
imposed and not because of any statutory prohibition in Chapter III of
the Act.
10. Section 3 contains the restriction against holding any and in
excess of the ceiling limit prescribed in Section 4, "except as otherwise
provided in this Act". Section 20 is a provision in the Act which provides
otherwise. It also begins with a non-obstante clause and, therefore, the
restriction in Section 3 is subject to Section 20. Section 5 relates to the
transfer of vacant land in excess of the ceiling limit. Sub-section (3)
of Section 5 contains the prohibition against transfer of the excess vacant
24 wp5183.08.odt
land, indicating that any such transfer made in contravention of the
provision shall be deemed to he null and void. For the reason stated,
because of the provision made in Section 20, an order of exemption made
under Section 20 exempts the vacant land in excess of the ceiling limit
from this restriction of transfer because the order of exemption exempts
the excess vacant land from the provisions of Chapter III. "
39. Similarly, we would like to reproduce paragraphs Nos. 5, 9 to 12 of
the judgment in Letters Patent Appeal No.257/2003 as under:
"5. It further appears that there was a dispute between them and,
therefore, an application came to be filed by respondent No.3 and others
for cancellation of the sale deed. The respondent-Authority vide order
dated 3.1.2002 cancelled the said sale deed executed by respondent no.3
and others in favour of the appellants. Being aggrieved thereby, the
petition came to be filed before the learned Single Judge. By the
impugned order dated 11.08.2003, the said petition came to be
dismissed.
9. The perusal of the provisions of the said Act specifically sub-
section (1) of Section 20 of the said Act would reveal that the State
Government is entitled to exempt the particular land to which the said
Act applies, subject to such conditions as may be specified in the order
passed by the State Government. Sub-section (2) of Section 20 of the said
Act would further reveal that the State Government is also entitled to
withdraw the exemption granted under sub-section (1) of the said Act if
it finds that any of the conditions subject to which the exemption was
granted are not complied with.
10. The perusal of the order dated 18.12.1998 would reveal that
there is a specific embargo under Clause (4) of the said order for transferring
the said land without prior permission of the State Government . Not only
that, Clause (7) of the said order would reveal that if there was any
breach of the conditions mentioned in the order, the State Government
was empowered to withdraw the exemption. Clause (8) would further
reveal that upon withdrawal of the exemption, the effect would be that
the provisions of the said Act would apply to the said land.
11. Undisputedly prior to transfer of the said land by respondent no.3
to the appellants, there was no prior permission of the State Government
obtained by respondent no.3. As such in view of the provisions of Section
20 read with the conditions stipulated in the order dated 18.12.1998, the
transfer was illegal and the State Government was entitled to withdraw
the exemption granted. By now, it is the settled position of law that an
erroneous mention of the provisions of law does not invalidate the order. It
is equally settled that if there is a provision in law which permits the
Authority to take an action, then an order is to be referred to the
provision which validates such an action and not to one which invalidates
the action. Reference in this respect is to be made to the judgment of the
Apex Court in the case of Municipal Corporation of the City of
25 wp5183.08.odt
Ahmedabad vs. Ben Hiraben Manilal reported AIR 1983 Supreme Court
537. Since in the present case the Competent Authority was entitled to
invoke the powers under Section 20 of the said Act read with the
conditions stipulated in the order dated 18.12.1998, we do not find that
any error has been committed either by the authorities in passing the
order which was impugned before the learned Single Judge, so also by
the learned Single Judge, whose order is impugned before us.
12. Insofar as another contention raised by Shri Parchure regarding
the repeal is concerned, undisputedly the owners of the land are not the
petitioners before the Court. In that view of the matter, the contention in
that regard also deserves no merit."
40. According to the learned Senior Counsel for the petitioner, the
dictum laid down in T.R. Thandur (supra) applies to the case at hand.
Similarly, in the judgment in Letters Patent Appeal No. 257/2003 , this Court
has not considered the judgment in T.R. Thandur and, therefore, the
judgment in Letters Patent Appeal becomes per incuriam and not
applicable to the petitioner's case.
41. In T.R. Thandur, the question that arose was ' whether the
provisions of Section 20(1)(b) permit the State Government to sell the
excess vacant land to a third party' and the answer to the said question
was in the negative, for more than one reason. It was also observed that
'in the first instance, the central object of the Act, as is evident from preamble
as well as the statement of object and reasons, is to acquire the vacant land in
excess to the ceiling area and to prevent speculation and profiteering in the
same and also to distribute the land equitably to subserve the common good ,'
therefore, held that "the provisions of Section 20(1)(b) do not permit the
State Government to exempt the vacant land in excess of the ceiling limit for
the purposes of transfer." In the said case, the restriction against transfer
26 wp5183.08.odt
would operate to the extent of restraining transfer to the individual flat
owners of their corresponding shares in the land where a multi-storied
building for group housing has been constructed.
42. The facts in Letters Patent Appeal No.257/2003 and T.R. Thandur
(supra) are distinct. Therefore, non-consideration of the law laid down in
the said judgment cannot be said to be a decision made per incuriam. On
the contrary, the facts in the case at hand and in Letters Patent Appeal
No.257/2003 are identical; therefore, the observations made in para. No.
11 applies to the case at hand. As such, in view of the above, and Section
20 read with the conditions stipulated in the exemption order dated
18-10-2000, the execution of the sale-deed can be said to be illegal, and
the State Government was entitled to withdraw the exemption granted.
43. Thus, in view of the mandate laid down in Letters Patent Appeal
No.257/2003, the provisions of Section 20(2) and conditions in the
exemption order dated 18-10-2000, it appears that the Competent
Authority has rightly issued notice in contravention of conditions of the
exemption order to the petitioner though inadvertently they have
mentioned Section 5(3) of the Act of 1976 in it, which is not at all
applicable and also recorded the reason that the original land owner
executed the sale deed in contravention of Condition No.16 of the Act of
1976 and, therefore, the same is illegal and void and accordingly, passed
the impugned order. We do not see any perversity or illegality in the
27 wp5183.08.odt
impugned order. On the contrary, the same appears to be just and proper.
Hence, we answer point No.2 in the affirmative.
44. While dealing with point No.3, it would be proper to reproduce
Section 4 of the Repeal Act of 1999, which reads thus :
4. Abatement of legal proceedings - All proceedings relating to
any order made or purported to be made under the principal Act
pending immediately before the commencement of this Act, before
any Court, tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings relating
to sections 11,12,13, and 14 of the principal Act insofar as such
proceedings are relatable to the land, possession of which has been
taken over by the State Government or any person duly authorised by
the State Government in this behalf or by the competent authority.
It is pertinent to note that the Government of Maharashtra, vide its
Resolution under Article 252 of the Constitution of India, adopted the
Repeal Act of 1999 from 29-11-2007. Therefore, from that date, the Act of
1976 was repealed. As per Section 4 of the Repeal Act of 1999, all the
proceedings relating to any order made under the Principal Act shall stand
abated after the enactment of the Repeal Act 1999. In the present case,
the proceedings relating to the order passed under Section 20(2) were
pending before the Appellate Authority. Therefore, the Appellate Authority
has rightly passed the impugned order to abate the proceedings.
45. To our mind, if the intent and purpose were not to save the
order of exemption with attendant legal consequences, then the
Legislature was not required to mention or specify anything about its
28 wp5183.08.odt
validity in the Repeal Act. Similarly, just as the Principal Act would have to
be read as a whole, equally the Repeal Act as well. Likewise, ' it is clear
that the saving clause of the Repeal Act saves the land once exempted
under Section 20(1) of the Principal Act from application of the repeal .' It
is to be noted that before coming into force of the Repeal Act of 1999, the
impugned order was passed under Section 20(2) of the Act of 1976,
declaring the said sale-deed illegal and void.
46. Considering the above discussion and facts of the case, in our view,
the mandate laid down in other cited judgments by the learned Senior
Counsel for the parties are of hardly any assistance to the respective
parties in support of their contentions as the facts in those judgments and
the case at hand are distinct and not relevant to the facts of the present
case. Similarly, we do not find any illegality or perversity in the impugned
orders to interfere in it in the writ jurisdiction. On the contrary, the
impugned orders are found just and proper. Therefore, no interference is
required in it in the writ jurisdiction. Hence, we answer this point in the
negative.
47. In such an eventuality, the petition, being bereft of merit, stands
dismissed. There is no order as to costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
Signed by: MR. P.M. ADGOKAR
adgokar
Designation: PS To Honourable Judge
Date: 23/05/2025 12:17:28
