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Judgment
(PER : RAJNISH R. VYAS, J.)
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
By this petition, the petitioners have prayed for issuance of declaration that proceedings initiated vide ULC Case No.2657/1976 under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “Principal Act”) have lapsed and abated.
Before dealing with the factual aspect of the matter, it is necessary to state that issue as regards non-taking of possession of the land before the repeal of the aforesaid Act (on 01/12/2007) and lapsing of proceedings is well settled by the judgment of co-ordinate Bench of this Court in case of Voltas Limited and another vs. Additional Collector & Competent Authority & others 2008 (5) Bom.C.R. 746. The co-ordinate Bench in the said judgment has categorically held that if the statement of objection and reasons of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “Repeal Act”) shows that Principal Act was required to be repealed because of the unanimous public opinion that not only the Principal Act has failed to achieve what was expected of it but it had also pushed up the land prices to unconscionable levels. It was further stated that if the possession of the land is not taken by the authorities before the date of Repeal Act (i.e. 01/12/2007), the proceedings under the Principal Act will abate.
In this background, we have heard respective counsels and have gone through the record of the case.
The petitioners claim to be the owner of land bearing Survey No.53 (Old Survey No.48/2), Mouza : Wanadongri, which was originally owned by one Shri Bhayya Mahadeo Walde. The original owner – Bhayya, in the light of the provisions of the Principal Act filed return under Section 6(1) of the Principal Act on 29/09/1976, on the basis of which ULC Case No.2657/1976 came to be registered. On 11/10/1987 draft notification under Section 8 of the Principal Act along with notice came to be issued on the original owner/declarant. Vide order dated 16/12/1987, the declarant was permitted to retain 1500 square meters land out of the total land admeasuring 15579.21 square meters.
On 09/03/1988, respondent No.2 directed the publication of a notification under Section 10(1) of the Principal Act in respect of the said land, and accordingly, the notification was published on 26/05/1988. What further followed was the issuance of a notification under Section 10(3) of the Principal Act on 19/10/2007.
On 06/11/2007, notice under Section 10(5) of the Principal Act was issued calling upon the declarant to deliver the possession of surplus vacant land ademasuring 15579.21 square meters through respondent No.3. It was contended by the petitioner that at no point of time possession of land was taken. It was further contended that till date the petitioners are in possession of an area of 0.65 HR out of the aforesaid land. It was further argued that declarant had sold more land than owned by him and the sale deeds executed in favour of the petitioners remained valid only to the extent of 0.65HR (i.e.6500 square meters) of the land. The petitioners contended that the declarant had sold an area of 0.81HR (i.e. 8100 square meter) out of the land admeasuring 1.70HR (i.e.17000 square meters) to “Shahakar Co-operative Housing Society Limited, Nagpur” by way of registered sale deed in the year 1993 and without disclosing the said fact, the declarant sold an area of 1.00 HR out of the said land to the petitioners vide registered sale deed dated 17/11/1998. Subsequently, by one more sale deed dated 09/12/1998, declarant sold an area of 0.46 HR (i.e. 4600 square meter) out of the said land to the petitioners.
The petitioners in the aforesaid background submitted that as the declarant had sold more land than owned by him, the sale deeds executed in favour of the petitioners remained valid only to the extent of 0.65HR out of the said land. Finally, he contended that since the possession of land was never taken in view of the law laid down by co-ordinate Bench of this court in the case of Voltas (supra) a declaration be given regarding lapsing of proceedings initiated under the Principal Act only in respect of area admeasuring 0.65HR land.
In pursuance with the notice issued, reply was filed by respondent No.2, in which it was stated that Old Survey No.48/2 is renumbered as New Survey No.53 admeasuring area of 1.70 HR which stands recorded in the name of Government of Maharashtra in record of right. It was further stated that the sale deeds executed in favour of the petitioners dated 17/11/1998 and 09/12/1998 are void as they were executed as regards the land which was declared to be surplus land and at which time the Principal Act was in force.
In the aforesaid background, the undisputed facts show that the petitioners had purchased the land by two sale deeds when the Principal Act was in force. It is also not disputed that the original declarant was asked to handover the possession in pursuance with the notice issued under Section 10(5) of the Principal Act. The Principal Act was repealed by Repeal Act, 1999 which was adopted by both the houses of Maharashtra Legislature on 29/11/2007 as notified on 01/12/2007.
In case of Voltas (supra), the question was whether by reason of repeal of the Act all proceedings under the Principal Act would abate, was answered by observing that, if the possession of the land has not been taken by the State Government, the proceedings would abate and further proceedings can no longer be proceeded.
The respondent State could not produce a single document on record to show that possession was either taken by the respondents or was handed over by the declarant. The record at page 24 Annexure-F shows that the notice under Section 10(5) of the Principal Act dated 06/11/2007 was issued to the declarant. The notice shows that the column indicating the date fixed for taking possession has been left blank. The possession receipt or Panchnama is not brought on record. The 7/12 extract in such circumstances, which is relied by the respondents would not be sufficient to reject the case of the petitioners. Since the possession is not taken before 01/12/2007 that is the date on which the Repeal Act was notified, we do not find objection taken by the respondents to be a sufficient ground to reject the prayer made by the petitioners.
Accordingly, the petition is allowed and it is declared that the proceedings initiated vide ULC Case No.2657/1976 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 in respect of Land bearing Survey No.53 (Old Survey No.48/2), Mouza: Wanadongri, admeasuring 0.65 HR, Tahsil : Hingna, District : Nagpur have lapsed and abated in view of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
Rule is made absolute in the above terms.