1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.5192 OF 2009 Shankar s/o. Piswa Yadav, Aged about 74 years, Occ. Agrilst., r/o. Behind Hockey Building, Kalamna Road, Kamptee, Distt. Nagpur. ........ PETITIONERS // VERSUS // 1. State of Maharashtra, through its Secretary, Urban Development Department, Mantralaya, Mumbai. 2. Competent Authority under ULC Act and Additional Collector, Collectorate, Civil Lines, Nagpur. 3. The Tahsildar, Tehsil Office, Kamptee. ....... RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. C.V.Kale, Adv. for petitioner. Mr.D.B.Patel, A.G.P. for Respondent Nos. 1 to 3. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 2 ********* Date of reserving the Judgment : 11.12.2009. Date of pronouncement of Judgment : 17.12.2009. ********* CORAM : D.D.Sinha & F. M. Reis, JJ. ORAL JUDGMENT (Per D. D. Sinha, J) : 1. Heard Mr. C. V. Kale, Counsel for petitioners and Mr.D.B.Patel, Assistant Government Pleader for respondent nos. 1 to 3. Rule returnable forthwith by the consent of parties. 2. This petition is directed against the order dated 9th July, 1999 passed by respondent no.2 in ULC Case No.315 of 1983 whereby restrictions are imposed upon the petitioner from transferring, conveying the land bearing Khasra No.172, admeasuring 2.14 Hectors, Class 2, Mouza Yerkheda, PH. No.16, Tq. Kamptee, District Nagpur. 3. Counsel for petitioner has submitted that the petitioner is a lawful owner of the said land which is in his possession as on today. Petitioner had filed return u/s. 6 (2) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the ULC Act”) on 28.2.1983 with respondent no.2/competent Authority. ULC Case No. 3 315/83 was registered. Respondent No.2, upon verification, detail scrutiny and inquiry passed order dated 9th July, 1999 u/s. 8 (4) of the ULC Act and the land admeasuring 1500 sq. mt. out of the aforesaid land has been declared as retainable and remaining land admeasuring 27,400 sq.mt. has been declared surplus. 4. It is contended that the entire record of respondent no.3 shows that the order u/s. 10 (3) of the ULC Act has not been passed. Petitioner is in actual and physical possession of the land in question. It is contended that the ULC Act has been repealed on 29.11.2007 by the Government of Maharashtra after adopting the Urban Land (Ceiling and Regulation) Repeal Act, 1999. In the present case, notification u/s. 10 (3) of the ULC Act has not been issued and possession of the land has also not been taken by the Government. Petitioner, as on today, is in physical and factual possession of the land in question. The issue in question is squarely covered by the decision of this Court reported in 2008 (5) ALL MR 537, Voltas Ltd. and anr. vs. Additional Collector and Competent Authority, Thane and Ors. Said decision is affirmed by the Apex Court. 5. Counsel for petitioner has, therefore, contended that, in the circumstances, the order dated 9th July, 2009 may be quashed and set aside and direction may be given in terms of prayer clause (i) of the 4 petition. 6. The Assistant Government Pleader does not dispute that possession of the land in question is with owner of the land i.e. petitioner. It is also not disputed that the issue is covered by the decision of this Court reported in the case of Voltas Ltd. and another (cited supra). 7. Considered the contentions canvassed by the respective Counsel. In the instant case, it is not in dispute that possession of land is still with the petitioner and the issue is covered by the decision of this Court reported in the case of Voltas Ltd. and another (cited supra). The law laid down by the Division Bench of this Court in the case of Voltas Ltd. and another is considered by this Court in the case of Waman Sukhdeo Tabhane and Ors. (cited supra) and in para 4 of the said decision, it is observed thus : “ We have considered the contentions of the learned counsel for the parties and perused the decision of this Court, cited supra. We feel it necessary to reproduce the concluding portion of the said decision, which reads thus :- 5 “ 14................ .................... ....................... Perusal of the above referred paragraph from the Statement of Objects and Reasons of the Repeal Act shows that the Principal Act was required to be repealed because of the unanimous public opinion that not only the Principal Act has failed to activate what was expected of it but it has pushed up the land prices to unconscionable levels. In this background, therefore, if despite clear words used in the Repeal Act, it is held that the Government continues to hold title of those lands of which possession is not taken though after the Repeal Act came into force it ceases to have power to take possession of those lands, ceases to have power to decide the amount to be paid under the Principal Act, in our opinion, will defeat the very intention of the legislature in enacting the Repeal Act. In our opinion, therefore, it is clear from the provisions of the Repeal Act that neither the proceedings after the remand order made by the State Government can continue after 29.11.2007 nor can the State Government claim that the land of the petitioners which was subject matter of the notification under sub-section (3) of Section 10 of the Principal Act, possession of which has not been taken by the State Government continues to vest in the State Government. “ 6 8. The law laid down by the Division Bench of this Court in the case of Voltas Ltd. and anr. (cited supra) which is affirmed by the Supreme Court clearly demonstrates that if possession of the surplus land is not taken by the Government, all the proceedings under the provisions of the Principal Act in relation to the land mentioned in the declaration under sub-section (3) of Section (10) of the Principal Act lapses and these lands do not vest in the State Government. 9. In view of decision of the Division Bench of this Court and considering the facts involved in the matter, we are of the view that the present petition is squarely covered by the law laid down by the Division Bench of this Court and therefore, the surplus land in question does not vest in the Government and further proceedings, if any initiated stand abated. 10. In the circumstances, the impugned order dated 9th July, 1999 passed by respondent no.2 in ULC Case No.315 of 1983 is hereby quashed and set aside. The restrictions imposed upon the petitioner from transferring, conveying the land bearing Khasra No.172, admeasuring 2.14 Hectares, Class 2, Mouza Yerkheda, PH No.16, Tq. Kamptee, Distt. Nagpur is hereby lifted. 7 Rule is made absolute in the above terms. No order as to costs. JUDGE JUDGE jaiswal