Shri Nathu Khode & Ors. vs State Of Maharashtra & Ors.

(PER : RAJNISH R. VYAS, J.)

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.

In the present petition a prayer is made to set aside the notification issued under Section 10(3) and 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “Principal Act”) with a further declaration that proceedings of ULC Case No.2895/1976 stood abated in view of Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “Repeal Act”)

The original petitioner (deceased) by name Nathu Mahadeo Khode was owner and possessor of the agricultural land bearing Survey No.73 (Old Survey No.126, 127/1) admeasuring 33892.903 Square Meters, Mouza Bina, P.C.No.54, Tahsil Kamptee, District Nagpur. In 7/12 extract also his name was recorded. After coming into force, the Principal Act he filed statement under Section 6(1) of the Principal Act on 29/11/1976. The case was registered as ULC No.2895/1976. The respondent No.2 Additional Collector and Competent Authority under Principal Act declared an area admeasuring 33892.903 Square Meters as surplus and allowed the petitioner to retain 1500 Square Meters of land including the dwelling house. The final statement under Section 9 of the Principal Act was then arrived at.

It is the case of the original petitioner that he was in possession of the land. During the pendency of the petition, the original petitioner, Nathu Mahadeo Khode, expired, and his legal heirs were brought on record as petitioners. They contended that they continued to remain in possession of the entire property. They further submitted that, as reflected in the record of ULC Case No. 2895/1976, a notification under Section 10(1) of the Principal Act was published in the Government Gazette on 31/12/1982. However, no notice was served upon the petitioners, and the matter remained pending until the year 2007, i.e., for almost 25 years. The petitioners submitted that Nathu Mahadeo Khode, being an agriculturist, was under the belief that the land was excluded from the purview of the Principal Act. However, upon obtaining a fresh 7/12 extract, he noticed that the name of the Government had been recorded therein, even though the Principal Act had been repealed in the State of Maharashtra on 29/11/2007.

Learned counsel for the petitioners contended that adjacent lands to the land of the petitioners, more particularly, Survey Nos.176, 177 and 178 Mouza Bina were released from the purview of the Principal Act vide notification dated 28/4/2019, but not the land of the petitioners. According to the petitioners, record of the ULC Case No.2895/1976 in question revealed that though the copy of the notice issued under Section 10(5) dated 07/11/2007 demanding delivery of possession was found, but same was never served upon the petitioners.

Learned counsel further contended that the notification issued under Section 10(3) of the Principal Act was also bad in law, as it did not specify the date from which the land would vest in the State Government. Thus, the petitioners have advanced the grounds of non-taking of possession under Section 10(5) and non-issuance of notices under Sections 10(3) of the Principal Act in support of their prayer. In order to substantiate his contention regarding physical possession of the subject land, he relied upon inspection report, spot inquiry panchnama and the report submitted by the Talathi at Annexure – 9, 10 and 11 respectively. He then finally contended that the ULC proceeding stood abated.

Per contra, learned AGP appearing on behalf of State relied upon the affidavit in reply dated 28/08/2023 filed by respondent No.2 and has contended that record of rights and register of crops reflects the name of Government of Maharashtra as owner of the land in question. The said record also shows that land is continuously shown as barren and having abadi, which makes it clear that Government is in continuous possession of the said land. Annexures 9, 10 and 11, according to the respondents are irrelevant and not reliable in law.

Learned AGP further contended that notice under Section 10(5) of the Act was issued on 07/11/2000, whereby the possession of the said surplus land was required to be delivered to the State Government though the concerned Tahsildar. It was stated in the affidavit-in-reply that the record shows that notice was not served upon the petitioners.

With the help of respective counsels, we have gone through the record of the case and have given thoughtful consideration to the arguments advanced.

It is necessary to state that issue as regards non-taking of possession of the land before the repeal of the Principal 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 reported in 2008 (5) Bom.C.R. 746. The co-ordinate Bench in the said judgment has categorically held that the statement of objection and reasons of the 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.

The respondent No.2 has categorically stated in his affidavit-in-reply that the original petitioner, namely, Nathu Mahadeo Khode owned the land bearing Old Survey No.126, 127/1 (New Survey No.73) admeasuring 35300.00 square metres, situated at Mouza Bina, Tahsil Kamptee District Nagpur.

The original owner had filed statement under Section 6(1) of the Principal Act and ULC Case No.2895/1976 was registered. The area admeasuring 33892.903 square metres of the land was declared surplus and order passed under Section 8(4) of the Principal Act on 10/09/1981. In order to take over the possession, the notice under Section 10(5) of the Principal Act was issued on 01/11/2007 and the owner was called upon to deliver possession of the surplus land.

The main crux of the arguments of the petitioners is that possession was never taken so also notice under Section 10(5) of the Principal Act was not served upon the petitioners, which fact was also admitted by respondents in affidavit-in-reply. The inspection report and spot inquiry panchnama at page Nos. 41A and 42A shows that the possession of the land was with the legal heirs of the original petitioner.

Learned counsel for the petitioners has rightly relied upon page 40 which is notice under Section 10(5) of the Principal Act states that the original owner Nathu Mahadeo Khode was informed that possession in respect of the land be delivered to the Government through Tahsildar, but document showing service of notice is not brought to our notice. Further coloumn showing fixing of date of taking of the possession is kept blank. Thus, it can not be said that when the Principal Act was repealed by the State Government, the possession of the land was taken.

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.

Just because the name of the Government is recorded in 7/12 extract that would not be a ground to infer the possession. It is settled law that such revenue entry is for fiscal purpose and do not create title or declare vesting of land in the Government.

Accordingly, the petition is allowed. It is declared that the proceedings initiated vide ULC Case No.2895/1976 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, in respect of the land which was the subject matter of the aforesaid proceedings, 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.