Bombay High Court
Vasanta Gopalrao Khawale And Others vs State Of Maha., Thr. Secretary, Urban ... on 18 September, 2025
Author: M. S. Jawalkar
Bench: M. S. Jawalkar
2025:BHC-NAG:9349-DB
1/31 Judg.wp.3147.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3147 OF 2022
1. Vasanta Gopalrao Khawale
Aged : 62 Years, Occu : Agriculturist; R/o
860, Near Bus-stop, Godhani/Rly.
Nagpur-441 111.
2. Vinayak Gopalrao Khawale
Aged : 49 Years, Occu : Agriculturist;
R/o Ward No.3, Near Dattamandir,
Godhani/Rly. Nagpur - 441 111.
3. Leela Murlidhar Nimkar
Aged : 69 Years, Occu : Household; R/o
Jyotiba Fule, Behind Sabhagruh Saunsar,
District Chhindwada (MP).
4. Prabhavati Narendra Umap
Aged : 75 Years, Occu : Household; R/o
Quarter No.226, Pitesur Road, MAHADA
Colony, Godhani (Rly), Nagpur - 441 111.
5. Vanita Subhash Raut
Aged : 45 Years, Occu : Household; R/o
860, Near Bus Stop, Godhani/Rly. Nagpur -
441 111.
6. Sandhya Sureshrao Shrikhande
Aged : 52 Years, Occu : Household; R/o Plot
No. 560/A/40, Laxmi Nagar, Zingabai Takli,
Nagpur - 440 030.
7. Devkabai Tulshiram Khawale
Aged : 71 Years, Occu : Household; R/o
Ward No.3, Near Dattamandir, Godhani/Rly.
Nagpur - 441 111.
2/31 Judg.wp.3147.2022.odt
8. Usha Manikrao Yawalkar
Aged 53 Years, Occu : Household; R/o Ward
No.12, Sawati Mandir Road, Mohapa, Tahsil
Kalmeshwar, District Nagpur.
9. Asha Banduji Yawalkar
Aged : 49 Years, Occu : Household; R/o
Ward No.3, Near Dattamandir, Godhani/Rly.
Nagpur - 441 111.
10. Kalpana Rajendra Yawalkar
Aged 44 Years, Occu : Household; R/o Near
Shiv Mandir, Raghupati Nagar, Wadi,
Nagpur, Tahsil and District Nagpur.
11. Nandabai Liladhar Ambulkar
Aged : 44 Years, Occu : Household; R/o
Reliance Tower, Thakre Layout, Ward No.2,
Parseoni, Tahsil Parseoni, District Nagpur.
12. Manda Purushottam Kandalkar
Aged : 48 Years, Occu : Housewife, R/o At
+ Post Khapri Kene, Pol Paradshinga, Tahsil
Narkhed, District Nagpur.
13. Sarala Pravin Anade
Aged : 43 Years, Occu : Household; R/o
Ward No.12, Sawati Mandir Road, Mohapa,
Tahsil Kalmeshwar, District Nagpur.
14. Surekha Ravindra Wankhede
Aged : 36 Years, Occu : Housewife; R/o
Ward No. 12, Sawati Mandir Road, Mohapa,
Tahsil Kalmeshwar, District Nagpur.
15. Prakash Tulshiram Khawale
Aged : 51 Years, Occu : Agriculturist;
R/o 860, Near Bus-stop, Godhani/Rly,
Nagpur - 441 111.
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16. Sudhakar Tulshiram Khawale
Aged 54 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly. Nagpur -
441 111.
17. Yuvaraj Sonba Khawale
Aged 47 Years, Occu : Agriculturist, R/o
House No. 874, Near Bus-stop, Godhani/Rly.
Nagpur - 441 111.
18. Rumabai Sonbaji Khawale
Aged : 70 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly,
Nagpur-441 111.
19. Usha Hemraj Khawale
Aged 34 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
20. Nilesh Sonba Khawale
Aged : 41 Years, Occu : Agriculturist; R/o
House No. 874, Ward No. 3, Near Bus-stop,
Godhani/Rly. Nagpur-441 111.
21. Mainabai Tikaram Khawale
Aged : 84 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
22. Khushal Tikaram Khawale
Aged : 63 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
23. Dattaraj Tikaram Khawale
Aged 52 Years; Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
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24. Ravindra Tikaram Khawale
Aged : 46 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
25. Indira Dattaraj Gahukar
Aged : 54 Years, Occu : Agriculturist; R/o
Near Datta Mandir, Godhani/Rly.
Nagpur-441 111.
26. Kusum Rajendra Kautkar
Aged : 49 Years, Occu : Agriculturist; R/o
Ward No. 3, Mhasepathar, Mohapa, Tahsil
Kalmeshwar, District Nagpur.
27. Rekha Ashok Gahukar
Aged : 56 Years, Occu : Agriculturist; R/o
Ward No. 19, Rani Laxmibai Nagar, Mohapa,
Tahsil Kalmeshwar, District Nagpur. ... PETITIONERS
VERSUS
1. State of Maharashtra
through its Secretary, Urban Development
Department, Mantralaya, Mumbai - 32.
2. State of Maharashtra
Through its Secretary, Revenue and Forest
Department, Mantralaya, Mumbai - 32.
3. Additional Collector & Competent Authority
under Urban Land Ceiling Land Act, Civil
Lines, Nagpur.
4. Nagpur Housing and Area Development
Board, through its Chairman, near M.L.A.
Office Civil Lines, Nagpur.
5/31 Judg.wp.3147.2022.odt
5. Tahsildar, Nagpur Rural, Nagpur.
6. Chairman, Nagpur Metropolitan Regional
Development Authority, Civil Lines, Nagpur.
[Amendment carried out as per Court's
order dated 13.3.2023] ... RESPONDENTS
Mr. N. B. Bargat, Advocate for Petitioners.
Mr. M. K. Pathan, AGP for Respondent Nos.1 to 3 and 5.
Mr. A. A. Potnis, Advocate for Respondent No.4.
Ms. S. S. Jachak, Advocate for Respondent No.6.
CORAM : SMT. M. S. JAWALKAR AND PRAVIN S. PATIL, JJ.
ARGUMENTS HEARD ON : JULY 09, 2025.
PRONOUNCED ON : SEPTEMBER 18, 2025.
JUDGMENT [PER PRAVIN S. PATIL, J.]
. Heard. Rule. Rule made returnable forthwith by consent of the
parties.
2. The controversy which is raised by the Petitioners in the present
Petition is that their land was vested with the Government by Notification
dated 10/7/1990 under Section 10(3) of Urban Land (Ceiling and Regulation)
Act, 1976 (for short, 'the Act of 1976'). Thereafter vide notices dated
25/10/1990 and 1/1/1991 possession was shown to be taken by the
Respondent No.3 and handed over to the Respondent No.4 on 17/1/1991. But,
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according to them, they are till date in possession of the land in question, and
therefore, in view of Section 3(a) of the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (for short, 'the Act of 1999') they are entitled to seek release
of the land and hence seek directions to mutate the same in their names in
revenue record.
3. On the other hand, the submission of the Respondents is that as
per Section 6 of the Act of 1976 the Karta of Petitioners' family namely, Gopal
Hiraman Khawale had submitted the statement, and accordingly, all the
communications were made with said Gopal. After preparing the draft
statement notice under Sections 10(3) and 10(5) was issued to him. So also
the amount determined towards compensation under Section 11 of the Act of
1976 was paid to Gopal. Not only this, the Respondent No.4 has obtained the
sanction of the Town Planning Authority on 4/12/2003 to convert the
agricultural land into non-agricultural land for constructing 24 houses over the
land. According to them, Petitioners are in illegal possession, and therefore,
police complaint was lodged on 4/3/2022. Thereafter the Petition came to be
filed on 15/3/2022. As such, it is the submission of the Respondents that
Petitioners are not entitled for the benefit of Section 3(a) of the Act of 1999
and the whole claim of the Petitioners is barred by limitation.
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4. In view of the rival submissions of both parties, to determine the
applicability of Section 3(a) of the Act of 1999, we deem it necessary to look
into the factual aspect of the matter.
5. In the present Petition, land in question is Survey No. 283 (old
Survey No. 150) admeasuring 0.50 H.R., Survey No. 37 (old Survey No. 164)
admeasuring 0.50 H.R. and Survey No. 32 (old Survey No. 150) admeasuring
0.09 H.R. As such, total area of the land is 1.09 H.R. It is undisputed fact that
the abovesaid land was originally owned by late Hiraman Ramchandra
Khawale. After the death of Hiraman, land was devolved upon his legal heirs
namely, Gopal, Tikaram, Tulshiram and Sonba. It is further not disputed that
Gopal was elder son of Hiraman. Gopal expired on 18/2/2012, Tikaram
expired on 2/9/1987, Tulshiram expired on 20/9/2020 and Sonba expired on
30/12/2012. The present Petitioners are legal heirs of the abovesaid
descendants of deceased Hiraman.
6. It is stated by the Petitioners that during the life-time of Gopal,
Tikaram, Tulshiram and Sonba, they have effected mutual partition in respect
of the land which is a subject-matter and got their 1/4th share each therein.
According to them, in pursuance of mutual partition, the Revenue Authority
had been recorded in the revenue record and same is reflected in the Record of
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Rights (Adhikar Abhilekh Panji) which is placed on record by them. As such,
considering the mutual partition, the land which came in their possession is
less than the ceiling area, as mentioned in the Maharashtra Agricultural Lands
(Ceiling on Holding) Act, 1961. Therefore, initiation of the proceedings at the
instance of Respondents was itself illegal.
7. It is the submission of the Petitioners that their forefathers were
illiterate and the ULC Authority conducted entire official proceedings in
English language, therefore, for want of legal knowledge the predecessor in
title could not pursue the said matter properly before the Competent Authority.
So also they could not point out the fact of mutual partition and their
respective retainable share of the land in question. Hence, in absence of proper
instructions, the Respondent No.3 had wrongly registered the ULC Case No.
2735/1976.
8. According to the Petitioners, the ULC Authority had obtained the
signature of only one occupant Gopal despite knowing the fact that partition in
respect of land in question was already effected and late Gopal Khawale alone
was not the owner of the aforesaid property. As such, the correspondence from
the office of ULC Authority to Gopal Khawale only is objected by them in the
matter. It is further stated by the Petitioners that ULC Authority, without
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issuing any notice to the predecessor in title, illegally declared the land of the
Petitioners admeasuring 10290 sq.mtr. as surplus vide order dated 22/6/1987.
So also according to the Petitioners, the impugned order dated 3/4/1993
issued by the Respondent No.3 was without giving an opportunity of being
heard to them.
9. In the above factual aspect, it is their submission that actual
physical possession of the land in question did not taken by the ULC Authority
or any other Authority from the predecessor in title of the present Petitioners
and presently said land is in actual physical possession of the present
Petitioners. It is again reiterated that on the date of passing of impugned order
dated 22/6/1988 Gopal alone was not exclusive owner of the aforesaid land
and his brothers were also having equal share in the property in question.
Hence, on the basis of this submission it is stated that the action initiated by
the Respondents under the provisions of the Act of 1976 is illegal, and
accordingly, they are entitled for the relief as claimed by them in the Petition.
10. Per contra, Respondent No.3 came with a specific submission that
late Gopal Khawale, according to Revenue record, was shown as Karta of the
Petitioners' family. It is further stated that the said Gopal filed the return
required under the provisions of Section 6(1) of the Act of 1976 on
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27/10/1976 in respect of land bearing old Survey No.150 admeasuring area
6700 sq.mtrs. old Survey No. 164 admeasuring area 5000 sq.mtrs. and the
house admeasuring area 90 sq.mtrs. situated at mouza Godhani Railway, Tahsil
Nagpur (Rural) vide ULC Case No. 2735 of 1976. Accordingly, as per the
provisions of the Act of 1976, the area admeasuring 10290 sq.mtr. of land
came to be declared surplus as per the order passed under Section 8(4) of the
Act of 1976 on 22/6/1987.
11. It is further submission of the Respondent No.3 that after
declaring the land as surplus, notification came to be issued under Section
10(1) and 10(3) of the Act of 1976 which were published on 6/10/1987 and
2/11/1989 in relation to the surplus land. Thereafter as per Section 10(3) of
the Act of 1976 by Notification published on 2/11/1989 in the official gazette
had declared that excess land referred to in the Notification deemed to have
been acquired by the State Government and shall be deemed to have vested
absolutely in the State Government free from all encumbrances with effect
from publication of such declaration on 2/11/1989. It is also pointed out that
notice under Section 10(5) of the Act of 1976 was issued to Gopal on
25/10/1990 directing to surrender or deliver possession of the surplus land to
the Tahsildar, Nagpur (Rural) by fixing the date of possession as 12/12/1990.
11/31 Judg.wp.3147.2022.odt
The said notice was duly received by said Gopal Khawale. Furthermore, one
additional notice was also served to Gopal under Section 10(5) of the Act of
1976. However, while serving the said notice, he was not found in the house,
and therefore, same was stick-up to his house. Hence, proper intimation of
notice was given to the owner of the land.
12. It is stated by the Respondent No.3 that after taking possession of
the land in question, same has been handed over to the Respondent No.4 on
17/1/1991 and executed the possession receipt to that effect. It is clarified by
the Respondent No.3 that Respondent No.4 had already demanded an area of
10290 sq.mtr. of land for providing house accommodation. Accordingly, the
Government in Housing and Special Assistance Department, Bombay has
conveyed its allotment to the Respondent No.4 for providing housing
accommodation vide letter dated 5/9/1989. The office of the Collector has
granted the surplus land admeasuring 10290 sq.mtr. in favour of the
Respondent No.4.
13. The Respondent No.3, to buttress his submission has specifically
relied upon the revenue record to show that the surplus land to the extent of
10290 sq.mtr. is already got mutated in the name of State Government as per
mutation entry No. 95 dated 12/1/1990. So also the name of Respondent
12/31 Judg.wp.3147.2022.odt
No.4, after taking action in terms of the provisions of Section 10(5) of the Act
of 1976, got mutated vide mutation entry No.195/405 dated 20/3/1993.
Hence, once the mutation entry in the name of Respondent No.4 was recorded
on 20/3/1993, possession of the surplus land is handed over to the
Respondent No.4 before repealing of the ULC Act, 1999 which came into effect
on 29/11/2007.
14. The Respondent No.3 categorically stated that Respondent No.4
had deposited the amount of compensation of the surplus land to the tune of
Rs.30,870/- on 17/1/1991. Furthermore, the surplus land arising out of
Survey No.150 (old) has been sanctioned for the layout scheme which is to be
developed by Nagpur Improvement Trust. In pursuance of the same,
Respondent No.4 has submitted the relevant maps to the Nagpur Metropolitan
Regional Development Authority for its sanction vide its letter dated
23/9/2021. However, the same is not implemented as Nala/drainage and
reservation of 18 meters D. P. Road through the said land was found to be in
dispute.
15. In addition to this, it is pointed out that 7/12 extract placed on
record to support of their submission that the land in question is already
mutated in the name of Respondent No.4. The Respondent No.4 corroborate
13/31 Judg.wp.3147.2022.odt
the said fact with a submission that possession of Survey No. 283 (old Survey
No.150) and 164 was taken on 17/1/1991 and deposited Rs. 30870/- in the
office of Urban Land Ceiling Department, Nagpur. The Respondent No.4 stated
that the Assistant Director, Town Planning Authority, Nagpur vide its sanction
letter dated 4/12/2003 granted the permission for building houses for people
belonging to low income proof. As such, after remeasuring the Survey Number,
the approval was granted to build only 20 houses for low income proof and
road of 6 meter was also proposed to be constructed. However, the land
acquired did not build up because of drainage pipeline and 18 meters of DP
road.
16. The Respondent No.4 specifically pointed out that since last more
than thirty years the Respondent No.4 is in possession and same was not
challenged by the Petitioners. On 4/3/2022 the Executive Engineer, MHADA
lodged a police complaint, thereby requesting the Police Officer to remove
unauthorized board which was erected on the land by the Petitioners so also
made a grievance to the Police Commissioner, Nagpur regarding removal of
encroachment and illegal possession of the Petitioners. Hence, it is the
submission of the Respondent No.4 that after lodging police complaint, the
present Petition came to be filed. It is further stated by them that notices
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issued by the Respondent No.3 was duly served on Gopal Khawale and the
same was never challenged by any of the Petitioners till date. Hence, the
present Petition is suffering from delay and laches to redress their grievance.
Hence, no interference is called for by invoking extraordinary jurisdiction in
the facts and circumstances of the matter.
17. In the background of abovesaid factual position, to ascertain the
factual position, we have perused the documents which Petitioners as well as
Respondents placed on record. The submission of the Petitioners, as recorded
above, the Revenue Authority in pursuance of mutual partition between their
predecessors namely, Gopal, Tikaram, Tulshiram and Sonba same was reflected
in Record of Rights (Adhikar Abhilekh Panji) which is placed on record.
However, from perusal of the said document, no where it is mentioned that in
view of mutual/oral partition between the brothers, the land in question has
been recorded in equal share between them. The only mention in this
document is about 1/4th share each of Gopal, Tikaram, Tulshiram and Sonba
in the capacity of legal heirs of Hiraman after his death. Therefore, we are not
satisfied with the submission of the Petitioners that there was mutual/oral
partition in between four brothers, and accordingly, 1/4th share each came to
be in their name. Merely recording 1/4th share in the name of legal heirs
15/31 Judg.wp.3147.2022.odt
without disclosing the manner of devolution of property is not sufficient proof
to accept the submission of Petitioners.
18. It is also pertinent to note that the Petitioners themselves placed
on record the 7/12 extract of Survey No.32, wherein the name of Gopal is
specifically mentioned as a Karta of family. Therefore, there is no reason to
disbelieve the submission of the Respondents that as Gopal was Karta of the
family. So also all communications were made in his name cannot be denied in
the matter. The Petitioners, in their pleadings, also admitted the fact that all
the communications made by the ULC Authority were in the name of Gopal
and not in their names. Hence, this submission is being not disputed fact, we
have no hesitation to held that Gopal was the Karta of the family of Petitioners,
and therefore, Respondent No.3/ULC Authority has rightly made
communications with him at the relevant time.
19. The procedure for acquiring excess land is provided under
Sections 6 to 10 of the Act of 1976. As per the said Act, if the property is found
to be in excess, the family member has to submit the statement under Section
6(1) of the Act to the competent authority. From perusal of record it is clear
that on 20/10/1976 Gopal Khawale submitted the extract of the total land
hold by his family in his application, he has also mentioned the name of
16/31 Judg.wp.3147.2022.odt
Tikaram, Tulshiram and Sonba as the joint owners. It is no where mentioned
by him that they possessed separate land or the said land is mutated separately
amongst them. It is stated that as per Section 6(4) (f) it is permissible for the
person holding vacant land or excess land to file the statement on behalf of
other persons, if he is competent to act on their behalf. As already stated, as
per the revenue record, Gopal was Karta of family, and therefore, it cannot be
said that he was not authorised to file submission as per Section 6(1) of the
Act of 1976.
20. It is further pertinent to note that after submitting the statement,
ULC Authorities are required to prepare a draft statement with regard to
vacant land hold in excess of ceiling limit. At that juncture, the other
persons/objectors have every opportunity to raise objection to the draft
statement and the Authority is bound to record the objection. After considering
the same, Authority is required to pass appropriate orders in the matter.
However, in the present case, no such objection was raised by any of the
predecessors of the Petitioners nor by the Petitioners. Accordingly, the draft
statement under Section 8(1) along with a notice under Section 8(3) of
surplus land admeasuring 10290 sq.mtr. was prepared and served on Gopal on
21/5/1987. However, as no objections were received, final statement under
17/31 Judg.wp.3147.2022.odt
Section 9 of the Act of 1976 was passed by the competent authority in the
matter on 22/6/1987.
21. It is stated that after compliance of Section 9 i.e. final statement
prepared by the Competent Authority. Thereafter as per sub-clause (3) of
Section 10, the competent authority is required to publish a Notification in the
official gazette to declare that the excess vacant land from particular date be
deemed to have been acquired by the State Government and upon the
publication of such declaration, such land shall be deemed to have been vested
solely in the State Government, free from all encumbrances with effect from
the date so specified. Accordingly, in the present matter, the said notification
was issued on 2/11/1989 under sub-clause (3) of Section 10.
22. It is seen from the record that after Notification under Section
10(3) of the Act of 1976, the Respondent No.3, by his order dated 10/7/1990
granted the land admeasuring 10290 sq.mtr. to the Respondent No.4 for
providing house accommodation as per the terms and conditions, as
contemplated under the provisions of Maharashtra Land Revenue Code, 1971.
23. In pursuance of transfer of land to the Respondent No. 4, the
competent authority of the ULC Authority determined the amount of
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compensation of the land to be paid to the owner namely, Gopal Hiraman
Khawale, and accordingly, by order dated 3/4/1993 out of 10290 sq.mtr. of
land Survey No.150 and 164 amount of Rs.2590/- was ordered to be paid in
cash immediately and remaining 75% of amount was directed to be paid as
negotiable bond as provided in the Act.
24. In between it is also clear from the record that notice dated
25/10/1990 under Section 10(5) of the Act of 1976 was issued to Gopal
Khawale, intimating therein that possession will be taken over on 12/12/1990.
The said notice was duly received by Gopal Khawale and the same shows to be
acknowledged by him by putting his signature dated 2/12/1990. Hence, it is
clear that Gopal Khawale was given proper notice under Section 10(5) of the
Act of 1976. It is seen from the record that again one notice dated 1/1/1991
was issued to Gopal Khawale intimating therein that possession will be taken
over on 17/1/1991. Behind the said notice, a remark is recorded that Gopal
Khawale was not found in his house and the house was locked, and hence, by
sticking the notice to his house in presence of witnesses, service of notice was
completed in the matter.
25. The Respondent No.3 placed on record the possession receipt
dated 17/1/1991 and also the acknowledgement of Respondent No.4 to the
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effect that possession has been taken over from the Tahsildar (Rural), Nagpur
on 17/1/1991. The mutation entry of 20/3/1993 is also placed on record,
wherein it is clear that the land in question was recorded in the name of
Respondent No.4. After going through this record, it is cleared that possession
of the land in question was actually taken over by the Respondent No.3 and
handed over the same to the Respondent No.4 on 17/1/1991, and accordingly,
the revenue record has been corrected in the name of Respondent No.4.
26. It is clear from the abovesaid factual position that all these
documentary evidence established the fact that Respondent No.4 is shown in
possession of the land in question from the year 1993 onwards, but till 2022
no objection of any kind was raised by the Petitioners in the matter at the
relevant time. It is clear that when the Respondent No.4 lodged police
complaint against the present Petitioners to the Police Station, Godhani on
4/3/2022, the Petitioners wake up from their deep slumber and filed the
present Petition alleging that they are in possession of the land, and therefore,
they should be granted benefit of Section 3(a) of the Act of 1999.
27. The Petitioners, in support of their submission, have heavily relied
upon the Judgment of this Court in the case of Voltas Ltd. & Anr. V/s
Additional Collector And Competent Authority, Thane & Ors., 2008(5) ALL MR
20/31 Judg.wp.3147.2022.odt
537. It is his contention that as per the law laid down by this Court, mere
declaration made under Section 10(3) of the Act of 1976 would not ipso facto
take away possession of the land from the owners and in that case the benefit
of Section 3(1)(a) of the Act of 1999 is required to be granted to the owner of
the land.
28. We have perused the aforesaid Judgment, wherein the actual
possession was not taken, and therefore, this Court held that benefit of Section
3(1)(a) of the Act of 1999 can be granted. To substantiate our submission that
Respondents in that case did not take possession, it will be relevant to
reproduce the relevant extract of the Judgment in paragraph Nos.4, 5 and 11,
which read thus :
"4. The respondents have filed affidavit and in the affidavit they
have not contended that they have taken possession of the land. On
the basis of the affidavit filed on behalf of the respondents, it can be
taken as an admitted position that the possession of surplus land has
not been taken. The question, therefore, that arises for consideration
is "whether by reason of repeal of the Act, all proceedings under the
principal Act in regard to the petitioners' land declared as surplus
vacant land, have abated and whether the land of the petitioner has
reverted to the petitioners.
5. It was submitted that it is an undisputed position that the
Respondents had not taken possession of the Petitioner's land
21/31 Judg.wp.3147.2022.odt
declared as surplus vacant land as on the date of the coming into
force of the Repeal Act.
11. 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."
29. In view of above findings of the Co-ordinate Bench of this Court,
we are of the opinion that if there is an admitted position that possession of
the land in question is not taken by the State Government or ULC Authority,
then certainly the owner of the land is entitled for the benefit of Section 3(1)
(a) of the Act of 1999. But, here in the present case, from the facts and
documents which are referred above, clearly demonstrates the fact that
possession was taken over by following the procedure, as prescribed under the
Act of 1976. Therefore, we are of the opinion that once the possession is taken,
the Petitioners are not entitled for the benefit of Section 3(1)(a) of the Act of
1976.
22/31 Judg.wp.3147.2022.odt
30. In the line of same submission, the Petitioners have relied upon
the following Judgments :
(i) Vinayak Kashinath Shilkar V/s Dy. Collector & Competent Authority &
Ors. 2012(4) ALL MR 461 (S.C.).
(ii) Anand Kawadu Chokhandre & Anr. V/s State of Maharashtra & Ors.
2013(7) ALL MR 58.
(iii) Smt. Usha Vasantrai Trivedi & Ors. V/s State of Maharashtra & Ors.
2018(7) ALL MR 738.
(iv) Smt. Tarabai Tulshiram Meshram V/s State of Maharashtra & Ors.
2020(4) ALL MR 78.
(v) Dhondiram Babu Ghodake V/s The State of Maharashtra & Anr. 2018(7)
ALL MR 784.
(vi) Writ Petition No. 4770 of 2021 (Acres and Meters Infrastructure & Anr.
V/s State of Maharashtra & Ors.
The above Petitions decided by this Court revealed the fact that
the State Government failed to take possession as prescribed under the Act of
1976 and the respective owners were enjoying the possession. In the said
matters, the State Government failed to prove that they are in possession or
any time they have taken possession, as like in the present case. Therefore, we
are of the considered opinion that the Judgments, which Petitioners have
relied upon, are not helpful to them in the facts and circumstances of the
present case.
23/31 Judg.wp.3147.2022.odt
31. At the same time the Respondents have relied upon the Judgment
of this Court in Writ Petition No. 2292/2023 (Rajesh Madhukarrao Motghare
V/s State of Maharashtra and Others) . In this Petition, this Court has
considered the question whether the Petitioners therein are entitled to any
relief in the light of disputed issue as regards to the manner of handing over
possession as well as the considerable delay in approaching the Court by way
of Writ Petition. This Court, accordingly, recorded the findings in this matter in
paragraph Nos.11 and 12 as under :
"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 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
24/31 Judg.wp.3147.2022.odt
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 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 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
25/31 Judg.wp.3147.2022.odt
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."
From the findings recorded by this Court, which is based upon the
Judgment of the Hon'ble Supreme Court, it is rightly held that due to delay
and laches on the part of Petitioner disentitled him from any discretionary
relief besides seeking adjudication of a disputed question of fact. Accordingly,
this Court held that there is no necessity to go into the challenge raised by the
Petitioner to the ULC proceedings which were arisen way back in the year
1990.
32. The Respondents further relied upon the Judgment of the Hon'ble
Supreme Court in Civil Appeal No. 6380 of 2012 (Kapilaben Ambalal Patel &
Ors. V/s State of Gujarat & Anr.), wherein the Hon'ble Supreme Court
observed in paragraph No.18 as under :
"18. Strikingly, in this appeal by special leave, a vague
ground has been raised to challenge the said conclusion of the
26/31 Judg.wp.3147.2022.odt
Division Bench. Further, no substantial question of law has been
formulated in the appeal by special leave in that regard.
Furthermore, in the grounds all that is asserted is that the High
Court erred in holding that there was delay of 14 years in filing of
writ petition and in not appreciating that the notice under Section
10(5) of the 1976 Act, dated 23.1.1986, was not served upon
Ambalal Parsottambhai Patel as he had already expired on
31.12.1985 and the notice sent to him was returned back on
2.2.1986 unserved with remark "said owner has expired". Further,
the legal heirs of Ambalal Parsottambhai Patel ought to have been
served with the said notice. From the factual matrix already stated
hitherto, these grounds, in our opinion, are of no avail to the
appellants. It is manifest from the acknowledgment produced by the
respondent-State that the first notice under Section 10(5) issued to
Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the
time second notice under Section 10(5) was issued on 23.1.1986,
Ambalal Parsottambhai Patel had died [on 31.12.1985]. The second
notice was also issued to others, namely, Bhikhabhai Maganbhai
Patel, Natvarbhai Bhailalbhai patel and Jayantibhai Babarbhai Patel.
Be that as it may, we are not inclined to reverse the conclusion
recorded by the Division Bench of the High Court that the writ
petition filed by the appellants was hopelessly delayed and suffered
from laches. That is a possible view in the facts of the present case."
Herein also after a delay of fourteen years the Writ Petition was
filed and same was dismissed by the High Court. The Hon'ble Supreme Court
has upheld the Judgment of the High Court by recording the findings that the
Petition was hopelessly delayed and suffered from laches.
33. In the present Petition, it will be expedient to point out that the
27/31 Judg.wp.3147.2022.odt
Hon'ble Apex Court has laid down the certain guidelines in the case of Pralhad
Singh and others V/ Union of India and others, 2011(5) Mh.L.J. 1, though it is
in respect of the acquisition of land under the provisions of Land Acquisition
Act, 1894, we found its relevance as same are in the general nature. Paragraph
No.19 of the Judgment of Hon'ble Apex Court is reproduced as under :
"19. The same issue was recently considered in Bandu
Development Authority V/s Moti Lal Agrawal decided on 26-4-2011.
After making reference to the judgments in Balwant Narayan Bhagde
V/s M. D. Bhagwat Balmokand Khatri Educational and Industrial
Trust V/s State of Punjab, P. K. Kalburqi v/s State of Karnataka,
NTPC Ltd. V/s Mahesh Dutta, Sita Ram Bhandar Society V/s
Government of NCT of Delhi, Omprakash Verma V/s State of A.P.
and Nahar Singh V/s State of U.P. this Court laid down the following
principles : (Banda Development Authority Case, SCC p.411, para
37)
"(i) No hard-and-fast rule can be laid down as to what act
would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a
panchanama will ordinarily be treated as sufficient to
constitute taking of possession.
(iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by the
authority concerned will, by itself, be not sufficient for taking
possession. Ordinarily, in such cases, the authority concerned
will have to give notice to the occupier of the
building/structure or the person who has cultivated the land
and take possession in the presence of independent witnesses
28/31 Judg.wp.3147.2022.odt
and get their signatures on the panchanama. Of course, refusal
of the owner of the land or building/structure may not lead to
an inference that the possession of the acquired land has not
been taken.
(iv) if the acquisition is of a large tract of land, it may not be
possible for the acquiring/designated authority to take
physical possession of each and every parcel of the land and it
will be sufficient that symbolic possession is taken by
preparing appropriate document in the presence of
independent witnesses and getting their signatures on such
document.
(v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the total
compensation is deposited in terms of Section 17(3-A) and
substantial portion of the acquired land has been utilised in
furtherance of the particular public purpose, then the court
may reasonably presume that possession of the acquired land
has been taken."
Applying the guidelines framed by the Hon'ble Supreme Court, we
are of the opinion that the Respondents have acquired the land and
Respondent No.4 is in actual possession of the same.
34. The Respondent No. 4 has also relied upon the Judgment of the
Hon'ble Supreme Court in the case of State of Maharashtra V/s Digambar,
(1995) 4 SCC 683, wherein the Hon'ble Supreme Court in paragraph Nos.25
and 26 has observed as under :
29/31 Judg.wp.3147.2022.odt
"25. In our view, the above allegation is in no way sufficient
to hold that the writ petitioner (respondent here) has explained
properly and satisfactorily the undue delay of 20 years which had
occurred between the alleged taking of possession of his land and
the date of filing of writ petition in the High Court. We cannot
overlook the fact that it is easy to make such kind of allegations
against anybody that too against the State. When such general
allegation is made against a State in relation to an event said to have
occurred 20 years earlier, and the State's non-compliance with
petitioner's demands, the State may not at all be in a position to
dispute such allegation, having regard to the manner in which it is
required to carry on its governmental functions. Undue delay of 20
years on the part of the writ petitioner, in invoking the High Court's
extraordinary jurisdiction under Article 226 of the Constitution for
grant of compensation to his land alleged to have been taken by the
governmental agencies, would suggest that his land was not taken at
all, or if it had been taken it could not have been taken without his
consent or if it was taken against his consent, he had acquiesced in
such taking and waived his right to take compensation for it.
26. Thus, when the writ petitioner (respondent here) was
guilty of laches or undue delay in approaching the High Court, the
principle of laches or undue delay adverted to above, disentitled the
writ petitioner (respondent here) for discretionary relief under
Article 226 of the Constitution from the High Court, particularly,
when virtually no attempt had been made by the writ petitioner to
explain his blameworthy conduct of undue delay or laches. The High
Court, therefore, was wholly wrong in granting relief in relation to
inquiring into the allegation and granting compensation for his land
alleged to have been used for scarcity relief road works in the year
1971-72. As seen from the judgment of the High Court, the
allegation adverted to above, appears to be the common allegation
in other 191 writ petitions where judgments are rendered by the
High Court following the judgment under appeal and which are
30/31 Judg.wp.3147.2022.odt
subject of SLPs in this Court that are yet to be registered. We have,
therefore, no hesitation in holding that the High Court had gone
wholly wrong in granting the relief which it has given in the
judgment under appeal, and judgments rendered following the said
judgment in other 191 writ petitions, said to be the subject of SLPs
or otherwise. All the said judgments of the High Court, having
regard to the fact that they were made in writ petitions with
common allegation and seeking common relief, are liable to be
interfered with and set aside in the interests of justice even though
only learned counsel appearing for a few writ petitioners were heard
by us."
35. In the present matter, we are of the opinion that there is an
inordinate delay and laches on the part of Petitioners to approach to this
Court, and therefore, they are disentitled for any discretionary relief under
Article 226 of the Constitution of India. Furthermore, on our endeavour, after
going into the documentary evidence placed on record, we are of the prima
facie opinion that possession of the land was handed over to the Respondent
No.4 in the year 1991 and since then revenue record shows the name of
Respondent No.4. Petitioners failed to demonstrate that they are in legal
possession of land in question. For almost 35 years, revenue entries are
existing in the name of Respondent No.4. No steps of any kind are taken in last
35 years by the Petitioners to object the said mutation entries.
36. From the observations made above, it is clear that there are
31/31 Judg.wp.3147.2022.odt
disputed facts on the point of possession, same cannot be decided in writ
jurisdiction. However, considering the prima facie documents we arrived at the
conclusion that Respondent No.4 is having a clear title, and accordingly, he has
taken the steps in the matter. Hence, for the aforesaid reasons, Writ Petition is
dismissed.
37. Rule stands discharged with no order as to costs.
[PRAVIN S. PATIL, J.] [SMT. M. S. JAWALKAR, J.]
vijaya
Signed by: Mrs. V.G. Yadav
Designation: PS To Honourable Judge
Date: 18/09/2025 20:27:58
