1 wp 3253 -10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3253/2010 M/s Thakkers Developers Limited and another ..Petitioners versus The State of Maharashtra and Ors. ..Respondents Mr.Girish Godbole for Petitioner. Mr.Gokhale,AGP for State CORAM : D. D. SINHA AND MRS. MRIDULA BHATKAR, JJ. DATED : AUGUST ,2, 2010. P.C. : . Heard counsel for the petitioner and A.G.P.for the respondent -State. 2. Rule , returnable forthwith and heard finally by consent of the parties. 3. The grievance of the petitioner is in respect of initiation of suo moto proceedings under section 34 of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred as the ULC Act) by the State Government vide notice dated 19/3/2005 . 2 wp 3253 -10 Learned counsel for the petitioner has submitted that petitioner -2 and other petitioners filed a Return under section 6(1) r/w section 15(1) of the ULC Act . The competent authority on 17/11/1997 passed an order under section 8(4) of the ULC Act and declared that petitioner -2 and others did not have any excess land under the ULC Act. The corrigendum was issued by respondent-3 dated 23/1/1998 which did not affect in any way the order dated 17/11/1997 passed by respondent-3. Similarly the another corrigendum was also issued by respondent -3 on 2/1/2004, however, it also did not affect the basic order dated 17/11/1997 passed by respondent-3 under section 8(4) of the ULC Act. 4. Counsel for the petitioner has further contended that the State Government suo moto exercised revisional power under section 34 of the ULC Act and initiated proceedings in respect of the land of the petitioner which are pending before the State Government for decision. 5. It is contended that during the pendency of the suo moto proceedings initiated by the State Government under section 3 wp 3253 -10 34 of the ULC Act the Repeal Act came into force with effect from 29/11/2007 and by virtue of the provisions of section 4 of the said Act all the proceedings relating to any order made or purported to be made under the Principal Act pending before the commencement of the Repeal Act before any Court,Tribunal or authority shall abate. It is in view of this provision learned counsel for the petitioner has submitted that the revisional proceedings initiated by the State Government suo moto under section 34 of the ULC Act prior to the Repeal Act came into force will stand abated and, therefore, appropriate writ in this regard be issued. 6. It is further contended that even otherwise the suo moto proceedings under section 34 of the ULC Act were instituted by the State Government after the lapse of more than 7 years from the date of order passed by respondent-3 under section 8(4) of the ULC Act i.e. 17/11/1997 . It is submitted that since the State Government failed to initiate proceedings under section 34 of the ULC Act within the reasonable time from the date of order passed by respondent-3 , it is not open for the State Government to initiate these proceedings at such a belated stage in view of the common 4 wp 3253 -10 decision of this Court dated 12/6/2008 rendered in bunch of Writ Petitions bearing number 8571/2007, 4193/2005, 4202/2005, 4203/2005 4204/2005 and 4205/2007.Learned counsel for the petitioner, therefore ,contended that the proceedings initiated by the State Government under section 34 of the ULC Act in view of the above referred decision stand terminated and therefore liable to be quashed and set aside. 7. The A.G.P.has submitted that the Additional Collector , Nasik filed an affidavit and in paragraph -3 of the said affidavit it is stated that the State Government had initiated proceedings under section 34 of the ULC Act , no notification under section 10(1) and 10(3) was issued in respect of the land in question and ,therefore, no notice under section 10(5) was issued to the petitioner. It is also stated in the said paragraph that the physical and actual possession of the land in question bearing survey no. 384,ademasuring 2 Hector ,10.4 Ares at Nasik is still with the petitioner. The A.G.P.has also not disputed that the controversy in dispute is covered by the decision of this Court dated 12/6/2008 passed in bunch of Writ Petitions. 5 wp 3253 -10 8. We have considered the contentions canvassed by the respective counsel . Perused the decision of this Court cited by learned counsel for the petitioner. 9. In the instant case the above referred facts are not in dispute . It is, therefore, evident that the competent authority passed order under section 8(4) of the ULC Act on 17/11/1997 declaring that petitioner-2 and others did not hold any surplus land under the provisions of the ULC Act. It is also not in dispute that the State Government for the first time exercised suo moto revisional power under section 34 of the ULC Act by issuing notice dated 19/3/2005 and the said proceedings are pending before the State Government. Paragraph -4 of the observations made by the Division Bench of this Court in the decision dated 12/6/2008 are relevant which read thus - “On 1.5.2005 the petition was admitted and the interim order was continued. Thus the State Government could not make Order under Section 34 modifying or the setting aside the order made under Section 8 of the Act holding that there is no surplus land. In the 6 wp 3253 -10 meantime Urban Ceiling Act itself has been repealed and the repeal has come into force on 29.11.2006 and therefore in terms of the repealing and saving clause as the proceedings are pending under the provisions of the Act and possession of the land has not been taken revision proceeding have lapsed. The position as stands today is that as there is a notice issued under Section 34 whereby the State Government proposes to revise the order passed under Section 8. That notice itself was stayed by this Court and therefore the Government could not make any order till the Act was repealed. Now there is no dispute that in view of the repeal the Act Government does not have power to go ahead with the revisional proceeding. Even if the Act had not been repealed, as the Government was proposing to revise the order dated 30.4.1998 passed under Section 8(4) of the Urban Ceiling Act in the year 2005, in view of the judgment of the Division Bench of this Court in case of Automotive Research Association of India vs State of Maharashtra and Ors. the State Government could not have exercised its powers under Section 34 in relation to the Order passed in 1994.This Court in the abovesaid judgment has clearly held that the power under Section 34 is to be exercised by the Revisional Authority within a reasonable period and this Court has held that three years would be the reasonable period. Thus, even if the Act had not been repealed the Government could not have varied or modified the Order made under Section 8. In any case, now because of the repeal no Order can be made by the Government and thus as the Government is not in a position to make the Order modifying 7 wp 3253 -10 the Order dated 30.4.1998 passed under Section 8 there is no purpose in continuing the restrain imposed by the Government on transferring and development of the land. Taking overall view of the matter, in our opinion, therefore the petition will have to be allowed. Hence the order. Communication dated 17/5/2005 from the State Government which is impugned in all these petitions is set aside. Rule made absolute accordingly. No order as to costs.” 10. In view of the above referred observations made by this Court it is clear that suo moto proceedings initiated by the State Government under section 34 of the ULC Act , in view of the provisions of the Repeal Act cannot survive. Similarly on account of delay caused in initiating the proceedings under section 34 of the ULC Act by the State Government from the date of order under section 8(4) of the ULC Act such proceedings are also held to be bad in law by the earlier decision of this Court. 11. For the reasons stated herein above notice dated 19/3/2005 as well as the proceedings initiated pursuant to the said notice by the State Government are hereby quashed and set aside 8 wp 3253 -10 Order dated 29/3/2005 passed by respondent-3 also cannot be sustained in law and is quashed and set aside. Rule made absolute in above terms. No order as to costs. (D. D. SINHA, J.) (MRS. MRIDULA BHATKAR,J.)