-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.9267 OF 2007 NO.9267 OF 2007 NO.9267 OF 2007 Smt Sindhubai Hari Kharadkar and anr. ...Petitioners v/s The State of Maharashtra and ors. ...Respondents Mr S.G. Page with Mr S.R. Page for Petitioners. Mr V.P. Malvankar, AGP for Respondent Nos.1 to 3. CORAM : D.K. DESHMUKH AND N.D. DESHPANDE JJ. DATE : 2ND JUNE 2008. -2- P.C. :- 1. Rule, returnable forthwith. Heard finally by consent of the parties. On a motion made by the learned counsel appearing for petitioners, name of respondent No.4 is allowed to be deleted. 2. By this petition, the petitioners challenge the order passed by the State Government in exercise of its powers under section 34 of the Urban Land (Ceiling and Regulation) act 1976. By that order, the State Government has set aside the order dated 28th March 2003 passed by the Competent Authority holding that there is no surplus land. The relevant facts are that the Competent Authority in proceedings under the Urban Land (Ceiling and Regulation) Act 1976, initiated against Smt Sindhubai Hari Karadkar, by an order dated 29th November 2001, held that the lands bearing survey Nos.21/2/1, 21/5, both of Village Kharadi, Taluka Haveli, District Pune and survey No.69/1/1 of Village Mundhawa, Taluka Pune City, District Pune were non-vacant on the date of commencement of the Act and therefore, provisions of the Act are not applicable to it. It appears that the Competent Authority decided to exercise its jurisdiction in relation to that order and reconsider the matter and made an order dated 28th March 2003 coming to the same -3- conclusion that the provisions of the Act do not apply to the lands in question held by Smt Sindhubai. It appears that thereafter a notice was issued dated 26th September 2007 to Smt Sindhubai by the State Government intimating her the intention of the State Government to invoke the revisional jurisdiction under section 34 of the said Act in relation to the aforesaid lands. The present petitioners by application dated 1st November 2007 intimated to the State Government that Smt Sindhubai to whom notice was issued, has expired on 20th September 2004, the names of legal representatives of deceased Smt Sindhubai were also disclosed and it was contended that on the date on which notice was issued, Smt Sindhubai was no more and therefore the notice issued against dead person is bad-in-law. Despite this, again a notice was issued on 3rd November 2007 only to Smt Sindhubai by the State Government. Petitioner No.1, who received the notice on behalf of Smt Sindhubai, wrote on the copy of the notice that she is accepting the notice issued in favour of Smt Sindhubai because Smt Sindhubai is no more. The State Government, ignoring this, made an order dated 27th November 2007 setting aside the order made by the Additional Collector and Competent Authority, Pune holding that the provisions of the Act do not apply to the above referred survey numbers. The petitioners have challenged the order principally on the ground that the order has been made -4- against a dead person and therefore, it is ab-initio void. An affidavit in reply has been filed by the State Government. It appears that the State Government has observed hat it was the duty of the legal representatives of the deceased landlady to intimate to the State Government in advance about the death of the landlady and because they have not done so, they cannot contend that the order is invalid because it is passed against dead person. It is obvious that the stand is only to be mentioned to be rejected. It is clear from the record that the order impugned is against the dead person. The State Government, despite being informed that the person against whom notice is issued is no more, did not take any steps to withdraw the notice. In these circumstances therefore, we are left with no alternative but to set aside that order. In the result therefore, petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (c) excluding the bracketed portion. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( N.D. DESHPANDE J.)