1 IN THE HIGH COURT OF JUDICATURRE AT BOMBAY CIVIL APPELLATE JURISDCTION WRIT PETITION NO. 5732 OF 2009 1. Harbanslal J. Gupta. 2. Banwarilal J. Gupta 3. Pyarelal J. Gupta, All since deceased through their heirs: (a) Rajiv Banwarilal Gupta (b) Krishan Harbanslal Gupta All of Mumbai, Indian Inhabitants having their address at Mira Kunj, Flat N.1, 2nd floor, Pedder Road, Mumbai 400 026. (c) Punit Pyarelal Gupta (d) Manish Pyarelal Gupta (e) Shashi Pyarelal Gupta all of Mumbai, Indian Inhabitants, 2 havig their address at 15-B, 1st floor, Kapur Mahal, 65, Marine Drive, Mumbai 400 020. .. Petitioners Vs. 1. The State of Maharashtra through the Secfretary, Government of Maharashtra, 2. The Additional Collector & Competent Authority, U.L.C.Mumbai. Respondents Mr. P.S. Dani i/b. M/s. Chitnis Vaithy & Co., Advocates, for the petitioners. Mr. C.R.sonawane, G.P. For the respondents. CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. DATE: 12th November, 2009. ORAL JUDGMENT (PER J.H.BHATIA,J.) 3 1. Rule. Rule made returnable forthwith. With consent of the learned Counsel for the parties, the petition is taken up for final hearing immediately. 2. The petitioners, who claim to be the members of the Hindu Joint Family, are the owners of land survey Nos. 105(P), 106/1, 113(P), 114(P), 117, 121/3, 125(P) and 134(P) situated at and within the village Kanjur, Taluka Kurla, Mumbai Suburban District. The total area of the land is 51818 sq. mtrs. and it falls within the Bombay Urban Agglomeration within the meaning of Urban Land Ceiling and Regulation Act, 1976 (hereinafter referred to as “the Ceiling Act”). According to the petitioners, necessary statement as required under Section 6(1) of the Ceiling Act was filed by the petitioners through Mrs. Amarkaur J. Gupta in the office of the Additional Collector and Competent Authority – respondent No.2, who passed an order and prepared draft statement as regards the vacant land held in excess of ceiling limit by order dated 25.1.2007 under Section 8(4) of the Ceiling Act. The Competent Authority declared that excluding 500 sq. mtrs. area out of the total land admeasuring 51818 sq. mtrs., balance 4 area of the land i.e. 51318 sq. mtrs. was excess vacant land liable to be acquired and he directed that a Notification under Section 10(1) of the Ceiling Act be issued. According to the petitioners, the said order was passed on 25.1.2007 without affording an opportunity to the petitioners of being heard in the matter since no notice of hearing of the matter was even sent to the petitioners by the Competent Authority. On 15.6.2007, the petitioners preferred an appeal uner Section 33 of the Ceiling Act before the Additional Commissioner, Konkan Division. That appeal is pending and no further steps were taken by the Additional Commissioner. On 29.11.2007, the respondent No.1 Government of Maharashtra issued a notification and adopted the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Repealing Act) and thus the Repealing Act was brought into force in the State of Maharashtra with effect from 29.11.2007. According to the petitioners, even though the order under Section 10(1) was passed by the respondent No.2 – Competent Authority, that order had not become final because the appeal had not been decided as yet nor any steps were taken by the Competent Authority to take possession of the land and as such possession of the land continues to be with the petitioners. In view of the Repealing Act, as the possession of the land has not been taken, the proceedings in respect of acquisition of the excess vacant land under the 5 Ceiling Act shall lapse and the petitioners are entitled to retain and to restoration of whole of the land. Therefore, by this petition, the petitioners sought a Writ in the nature of certiorari or any other appropriate writ, order or direction quashing the impugned order under Section 8(4) and notice under Section 9 of the Ceiling Act dated 25.1.2007 and seek declaration that the proceedings initiated in respect of the properties shall stand abated in pursuance of Section 4 of the Repealing Act, 1999. 3. Heard the learned Counsel for the parties. 4. On behalf of the respondents, affidavit in reply was filed by Mr. Mahendra B. Warbhuvan, Additional Collector and Competent Authority, Mumbai, wherein he contended that necessary opportunity was given to the petitioners for being heard before passing the order under Sections 8 and 9 of the Ceiling Act. However, in para 5 of the affidavit, he admitted that notice under Section 10(5) of the Ceiling Act has not been issued and possession of the surplus vacant land was not taken over by the Government before the repealment of the Ceiling Act on 29.11.2007. 5. On behalf of the petitioners, affidavit of Rajiv Gupta, petitioner 6 No.3(a) is filed wherein he has clarified that in respect of land Survey No. 121/3 equivalent to CTS No.187(P), exemption was granted under Section 20 of the Ceiling Act and also scheme came to be sanctioned under the provisions of the Slum Rehabilitation Act by the Government of Maharashtra. It is contended in the affidavit that out of 51318 sq. mtrs land shown as excess vacant land, 7588 sq. mtrs. being survey No.121/3 is already exempted under the order s dated 11.1.2005. The balance area of the land being 43730, in respect of which the proceedings under the Ceiling Act is deemed to have been abated. 6. The Repealing act, 1999 came into force in the State of Maharashtra on 29.11.2007. Under Section 3(1) of the Repealing Act, the repealing of the Ceiling Act shall not affect vesting of any vacant land under Section 10(3), possession of which has been taken over by the State Government or any person duly authorised by the State Government or by the Competent Authority and shall not effect the validity of the order granting exemption under sub-section (1) of Section 20 or any action taken thereunder. 7. In Voltas Ltd. and Anr. vs. Additional Collector and 7 Competent Authority and Ors. 2008 (5) Bom.C.R.746, by Judgment dated 25.7.2008, the Division Bench of this Court had held that if possession of the land is not taken under the Ceiling Act, all the legal proceedings in respect of any order made or purported to be made under the Ceiling Act pending immediately before the commencement of the Repealing At, before any Court, Tribunal or other authority shall abate in view of Section 4 of the Repealing Act. The learned AGP also conceded that the Judgment of the Division Bench in Voltas matter was challenged by the State Government in SLP before the Supreme Court, however, SLP has been dismissed. As the possession of the land has not been taken prior to the enforcement of the Repealing Act, the proceedings for acquisition of the land under the Ceiling Act have to abate under Section 4 of the Repealing Act. However, only the land which is covered under the Scheme sanctioned under Section 20 of the Ceiling Act will be saved in view of Section 3(1)(b) of the Repealing Act. As a result, out of the total land being 51318 sq. mtrs declared as excess vacant land, land survey No.121/3 equivalent to CTS No.187(P) admeassuring 7588 sq. mtrs. is covered under the exemption under Section 20 of the Ceiling Act and the proceedings in respect of the remaining area being 43730 sq. mtrs. shall stand abated. 8 8. For the aforesaid reasons, the Petition is allowed and it is hereby declared that the proceedings under the Urban Land Ceiling Act initiated in respect of lands to the extent of 43,730 sq. mtrs shall stand abated in pursuance of Section 4 of the Repealing Act, 1999. No order as to costs. (J.H.BHATIA,J.) (F.I.REBELLO,J.)