:1: bgp bgp bgp 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.4241 OF 2008 NO.4241 OF 2008 NO.4241 OF 2008 Vithabai Bama Bhandari Indian Inhabitant, residing at Building No.1, 3rd Floor, Bombay Housing Board Building, Bandra Reclamation, Bandra (East), Mumbai - 400 050. ..Petitioner Versus 1. State of Maharashtra 2. Deputy Collector & Competent Authority Ulhasnagar Urban Agglomeration, having his office at Ulhasnagar Civil Complex ..Respondents Mr.Milind Sathe, Senior Advocate with Mr.Chirag Balsara i/b.Kanga & Co. for petitioner. Mr.V.A.Sonpal, AGP for respondents. CORAM CORAM CORAM :- V.C.DAGA & :- V.C.DAGA & :- V.C.DAGA & MRS.MRIDULA MRS.MRIDULA MRS.MRIDULA BHATKAR,JJ. BHATKAR,JJ. BHATKAR,JJ. JUDGMENT JUDGMENT JUDGMENT RESERVED ON : 31ST MARCH, 2009 RESERVED ON : 31ST MARCH, 2009 RESERVED ON : 31ST MARCH, 2009 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED PRONOUNCED PRONOUNCED ON : ON : ON : 16TH APRIL, 2009 16TH APRIL, 2009 16TH APRIL, 2009 JUDGMENT JUDGMENT JUDGMENT (PER : V.C.DAGA,J.) (PER : V.C.DAGA,J.) (PER : V.C.DAGA,J.) 1. The petitioner, in this petition filed under Article 226 of the Constitution of India, is seeking following declaration; That it be declared that all proceedings/notifications and notices issued under Section 9 and 10 of the Urban Land (Ceiling and Regulation) Act, 1976 in respect of the land situated at bearing survey No.34/6 Koliwali, Taluka Kalyan District Thane :2: admeasuring 2008.00 sq.mtrs. stand abated in view of Section 4 of the Urban Land Ceiling (Repeal) Act, 1999 and the respondents are now not entitled to resort to the provisions of the Urban Land (Ceiling and Regulation) Act 1976 in respect of the petitioners land; FACTUAL BACKDROPS: . In order to appreciate the grievance of the petitioner, few relevant introductory facts needs to be noticed at the outset. 2. Petitioner herein is a holder of land admeasuring 16490 sq.mtrs. under Plot bearing No.33, 34(6) and 35/15 at village Koliwali, Taluka Kalyan, District Thane. 3. On 3rd October, 1983, the Deputy Collector & Competent Authority, Ulhasnagar passed an order under Section 8(iv) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short "the said ULC Act") in Case No.ULC/ULN/SR-19 Koliwali and declared that petitioner is holding surplus land as per the details given below: ------------------------------------------------------ Sr.No. Area in Area to be Area to be sq.mtrs. retained with acquired in the declarant sq.mtrs. ------------------------------------------------------ 33 2230 2230 -- 35/15 900 900 -- 34/6 13360 4370 8990 ------------------------------------------------------ Total 16490 7500 8990 ------------------------------------------------------ :3: 4. On 10th July, 1989, petitioner has filed an application for exemption under Section 20 of the said Act offered the said excess land for providing sites and services, construction of core and construction of tenements governed by the Maharashtra Ownership Flats Act,1963 or by the Maharashtra Cooperative Societies Act,1960. 5. The Deputy Collector and Competent Authority, Ulhasnagar after having considered the application has passed an order under Section 20 of the ULC in No.ULC/ULN/20-NEW/SR-138 and allowed the application of the applicant with the condition that 31 tenements of 40 sq.mtrs. each i.e. 1,180.04 sq.mtrs. to be sold to Government nominees at fixed rate. 6. The petitioner, thereafter preferred an application proposing to develop the land so as to implement development scheme with the office of Kalyan Dombivli Municipal Corporation (for short "the KDMC"). The KDMC has informed the petitioner about the reservation of Sy.No.34/6 for development as per the development plan and rejected the proposal of the applicant for development of the land. 7. Being aggrieved by the orders dated 3rd October, 1983 and 31st July, 1989, petitioner has filed an appeal under Section 33 of the ULCR before the Additional Collector, Thane which was allowed on :4: 23rd May, 2001. The Deputy Collector and Competent Authority, Ulhasnagar was directed to hold fresh enquiry under Section 8(iv) of the ULC Act. 8. After fresh enquiry conducted by respondent No.2 bearing No.ULC/ULN/6(1)SR-19, Koliwali, on 19th September, 2001 it was declared by respondent No.2 that petitioner is holding 2008 sq.mtrs. surplus land. On 30th September, 2003, the constituted attorney of the petitioner vide letter dated 30th June, 2003 sought for implementation of a scheme under Section 20 of the Act. 9. Pursuant to the application, the Additional Collector and Ex-Officio, Deputy Secretary, Ulhasnagar Urban Agglomeration, Thane issued the order ULC/ULN/20-NEW/SR-138 dated 31st July, 1989, wherein petitioner was directed to handover 7 tenements of 40 sq.mtrs. each i.e. 266.23 sq.mtrs. to Government nominees at fixed rate. Thereafter on 17th October, 2003 petitioner had filed a proposal for IOD and Commencement Certificate for construction work on the plot of land and started the construction work and also filed a proposal dated 17th October, 2003 for development of scheme with KDMC, which the KDMC has approved the proposed development vide its order No.KDMC/DP/BP/Koliwali/473/194. The said constructions was completed within the time prescribed for the same. :5: 10. On 5th January, 2006, petitioner vide her letter requested respondent No.2 to take possession of the flats, along with affidavit mentioning description of the lands to be handed over to the said authority. During the submission of the letter dated 5th January, 2006, petitioner was informed by the department through her constituted attorney that there was some exchange of correspondence with regard to the said property such as Show cause notice bearing No.ULC/ULN/T-5/SR-138 dated 11th April, 2005 was issued to the petitioner, which ultimately resulted in an order dated 25th April, 2005 withdrawing the exemption granted under Section 20 of the ULC Act vide order No.ULC/ULN/20-NEW/SR-138 dated 31st July, 1989. 11. The Petitioner, after having received the said order through her constituted attorney vide letter dated 23rd February, 2006 requested respondent No.2 to carry out the site visit since the work was completed and willingness was shown to hand over the requisite flats but this request did not yield any result. 12. The Petitioner was served with the notice dated 28th June, 2007 by the respondent No.2 under Section 10(5) of the ULC Act calling upon the petitioner to hand over possession of the surplus vacant land to respondent No.2 due to non compliance of the condition for exemption under Section 20 of the :6: Act. The said notice is the subject matter of challenge in the present petition filed under Article 226 of the Constitution of India. RIVAL SUBMISSIONS 13. Mr.Milind Sathe, learned Senior Counsel appearing on behalf of petitioner, in support of his pleadings, contends that in pursuance of the order given by Additional Commissioner vide its order dated 23rd April, 2001, the respondent No.2 conducted an inquiry bearing No.ULC/ULN/6(1)SR-19 Kolivali and accordingly has passed an order dated 19th September, 2001 wherein it was held that petitioner was holding 2008 sq.mtrs. surplus vacant land. 14. The learned Senior Counsel further contended that the petitioner was surprised to receive a notice dated 20th June, 2007 issued by respondent No.2 under Section 10(5) of the said Act directing the petitioner to handover possession of the surplus vacant land to respondent No.2 due to non compliance of the conditions for exemption under Section 20 of the said Act. 15. Mr.Sathe also contends that the possession of the said land has not been taken by respondent No.2 and the petitioner continues to remain in actual :7: physical possession of the same. In the meanwhile by Notification dated 29th November, 2007 published by respondent No.1 the Urban Land (Ceiling and Regulation) Repeal Act,1999 (in short "the Repeal Act") was brought into force in the State of Maharashtra as such respondent No.2 is now not entitled to take possession of the said land. The petitioner since continues to be in possession of the said land, the proceedings under Section 9 and the notices and notifications under Section 10 of the said Act stand abated in accordance of Section 4 in the Repeal Act and that the respondent No.2 cannot resort to the provisions of the said Act with respect to the petitioner’s land. In support of his contention, Mr.Sathe relied on the judgment of this Court in the case of Voltas Ltd. & Anr. Vs. AdditionalCollector Voltas Ltd. & Anr. Vs. AdditionalCollector Voltas Ltd. & Anr. Vs. AdditionalCollector & Competent Authority & Ors. 2008(5) Bom.C.R.746 Competent Authority & Ors. 2008(5) Bom.C.R.746 Competent Authority & Ors. 2008(5) Bom.C.R.746. 16. In reply, Mr.Sonpal submits that as per the scheme of the ULC Act, Section 9 is the point upto which all proceedings after filing of the return by the land owner are travelled, a declaration of excess land follows. Once excess land is determined, the land owner has two options. The first option is; the land owner can surrender surplus land which can be taken over by the Government following procedure prescribed under Section 10 of the ULC Act. Another option is; the land owner can apply for exemption :8: under Section 20 of the ULC Act which can be granted subject to the provisions of the ULC Act. 17. According to Mr.Sonpal, these two different options have different consequences. In his submission in the first option, the proceedings are required to go through the gamut of Section 10(1), 10(2), 10(3), 10(5) and 10(6) and the possession of the surplus land is required to be taken over by the Government. Once the possession is taken, the title of the land unequivocally vests in the Government. 18. In the second option, where Section 20 exemption is required to be applied, it can be applied once the stage of Section 9 is crossed and surplus land is determined. The application for exemption under Section 20(1) is required to be considered by the State Government and if allowed, exemption is granted subject to certain terms and conditions. The breach thereof entails consequences provided under sub section (2) of Section 20 of the ULC Act. 19. According to Mr.Sonpal, in case in hand , the petitioner was granted exemption under Section 20(1) of ULC Act vide order dated 31st July, 1989 (Exhbit-"B"). The relevant condition Nos.16 and 17 there of read as under: "If at any time, the Deputy Collector & Competent Authority is satisfied that there is a breach of any of conditions, the Deputy :9: Collector & Competent Authority has authority to withdraw by an order, the exemption order from the date specified in the case. Provided that before making any such order, the Deputy Collector & Competent Authority shall give reasonable opportunity to the person whose lands are exempted making representation against the proposed withdrawal. When any such exemption withdrawn or deemed to be withdrawn under these conditions, the provisions of Chapter-III of the said Act shall apply to the lands as if the lands has been exempted under this order." 20. Mr.Sonpal submits that the above order dated 31st July, 1989 in general and conditions mentioned therein are in the nature of contract between the State Government and the petitioner. The violation of conditions of exemption order constituted breach of contract. In his submission reference to provisions of Chapter-III with regard to the procedure for taking possession constitutes integral part of contract (not integral part of the statute) as such he submits that the provisions of the Repealing Act shall not be applicable so far the subject land is concerned. In other words, the statutory requirement provided in Chapter III of ULC Act to take possession of surplus land is not applicable to the facts of case in hand. In his submission the possession is to be taken consequent upon breach of the terms and conditions of the exemption order without going requiring to follow the statutory provisions engrafted in section 10 of the ULC Act. :10: 21. Mr.Sonpal relying upon the ULC Repeal Act, 1999 in general and Section 3 Sub Section (1)(b) in particular to urge that the revocation of exemption as well as action for taking possession of the land as per Clause 17 of the exemption order dated 31st July, 1989 is saved and is not at all affected by Repeal Act. He also tried to press into service Section 6 of the General Clauses Act to buttress his submissions. 22. Mr.Sonpal further submits that the petitioner has violated the conditions of exemption as per order dated 31st July, 1989 he thus cannot take advantage of his own wrong. The petitioner is not entitled to retain possession of the land. He, thus, submits that the petition is liable to be dismissed leaving it open for the State to take possession of the subject land. 23. Before proceeding to consider rival submissions, it is necessary to turn to the statutory provisions relevant for deciding the issue involved. STATUTORY PROVISIONS 24. Before proceeding further with discussion, it may be proper to notice the relevant provisions for breach of statutory limbs: :11: 25. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short "the Repeal Act") came into force on 18th March, 1999. Section 3 of the said Act deals with the provisions of ULC Act which are saved and reads thus: Section 9 and 10 and 20 of the said Act read as under: 9. Final Settlement: Final Settlement: Final Settlement: After the disposal of the objections, if any, received under sub-section (4) of section 8, the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the persons concerned in excess of the ceiling limit and cause a copy of the draft statement as so altered to be served in the manner referred to in sub-section (3) of section 8 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable power of attorney, also on the owner of such vacant land. 10. Acquisition of vacant land in excess of Acquisition of vacant land in excess of Acquisition of vacant land in excess of ceiling ceiling ceiling limit : limit : limit : (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to :12: the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such order as it deems fit. (3) At any time after the publication of the notification under sub-section(1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)- (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. (5) where any vacant land is vested in the State Government under sub-section (3), the competent authority may by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. :13: Explanation:- In this section, in sub- section (1) of Sec.11 and in sections 14 and 23, "State Government", in relation to - (a) any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in the Union Territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act,1924, means that State Government." 20. Power to exempt : Power to exempt : Power to exempt : (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter - (a) where any person holds vacant land in excess of the ceiling limit and the state Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the pubic interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in order, such vacant land from the provisions of this Chapter; (b) where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter: . Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing. 3. Saving Saving Saving : (1) The repeal of the principal Act shall not affect - (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; :14: (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) Where - (a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. CONSIDERATION : 26. Before considering the rival submissions, it would be useful to go into the legislative background of the subject Legislation giving rise to the present legal controversy. LEGISLATIVE BACKGROUND : 27. There was a demand for imposing a ceiling on urban property, also especially, after the imposition of a ceiling on agricultural lands by the State Governments. With the growth of population and increasing urbanization, a need for orderly :15: development of urban area was also felt. It was, therefore, considered necessary to take measures for exercising social control over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections of society and also avoiding speculative transactions relating to land in urban agglomerations. 28. With a view to ensuring uniformity in approach, Government of India addressed to all the State Governments in this regard, eleven States could pass resolutions under Article 252(1) of the Constitution empowering Parliament to undertake legislation in this behalf. 29. The Urban Land (Ceiling and Regulation) Bill was passed by both the Houses of Parliament and the statute came on the statute books as the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) (the ULC Act). In its application, State of Maharashtra was one of the States which had adopted the ULC Act under clause (1) of Article 252 of the Constitution. On the date of such adoption, the said Act became applicable in the State of Maharashtra. Scheme of the ULC Act 30. Having seen the legislative background now, it is necessary to examine Scheme of the ULC Act. :16: Section 2 of the ULC Act provided for definitions, whereas section 3 laid down that no person shall be entitled to hold vacant land in excess of the ceiling limit. Section 4 provided for the ceiling limit, whereas section 5 provided for consequences for transfer of vacant land. Sections 6 and 7 required every person holding vacant land in excess of the ceiling limit at the commencement of the Act to file statement before the competent authority having jurisdiction in prescribed form specifying location, extent, value and such other particulars of every kind of land held by him. Section 8 of the Act provided for preparation of draft statement as regards vacant land held in excess of the ceiling limit so as to serve on the person concern to enable him to file objections. Section 9 provided for consideration of the objections and preparation of final statement consequent on the decision of objections preferred by the land holder with copy to the person concerned and where such vacant land was held under lease, mortgage, hire-purchase agreement or an irrevocable power of attorney also to the owner of such vacant land. 31. Once the proceeding crosses the stage of Section 9 and the land in excess of the ceiling limit is determined, then the three options were given under the ULC Act to the person holding excess vacant land as enumerated hereinafter. :17: 32. On the above canvas one of such options was to permit the State Government to acquire vacant land in excess of the ceiling limit exercising powers under section 10 and award compensation under section 11 of the ULC Act. In other words, a notification acquiring the excess vacant land by the State Government was required to be issued under Section 10(1). All persons interested in such vacant land were required to file their claims at this stage and upon determination of their claims, a declaration vesting the property in the State free from all encumbrances was to follow with effect from a date specified in the declaration as per Section 10(2) and (3) of the ULC Act. Section 11 thereof laid down the principle on which the amount payable for such acquisition was to be determined. 33. The another option open to the person holding vacant land in excess of the ceiling limit was to apply under section 20(1) for exemption, which the State Government was competent to consider and grant, subject to such conditions as may be specified in the order and exempt the land from the operation of Chapter III of the ULC Act. 34. The third option