1 WRIT PETITION NO.3297 OF 2010 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3297 OF 2010 Gajanan Kamalya @ Kamlakar Patil : Petitioner versus The Additional Collector and Competent Authority Thane and ors. : Respondents. Mr.P K Dhakephalkar, Sr.Counsel, a/w Mr Ramesh A Karale for the Petitioner. Smt. S S Bhende, AGP for the Respondents/State. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 12th July 2010 P.C. 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 By way of this Petition, filed under Article 226 of the Constitution of India, the Petitioner seeks a declaration that the proceedings initiated under the Urban Land (Ceiling and Regulation) Act, 1976 (for the brevities sake referred to as “The said Act”) and culminating in the Notification issued under Sections 10(1) and 10(3) and the Notice under Section 10(5) have abated in view of the repeal of the said Act by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. 3 The land in the instant writ petition is the land bearing Survey No.98/6 admeasuring 1708 sq.mtrs of village Bhyanderpada, Tal & Dist. Thane. Though the aforesaid notifications and the notice came to be issued, it is the case of the Petitioner that the possession of the land in question has not been taken over by the authority. 2 WRIT PETITION NO.3297 OF 2010 4 In the context of the law laid down by this Court in the matter of Voltas Ltd and ors. v/s. Additional Collector and Competent Authority, reported in 2008(5) BCR 746, the factum of possession of the lands in question is a crucial determining factor as to whether the relief sought for by the Petitioner in the instant Petition can be granted. In so far as said aspect is concerned, an affidavit in reply was filed in companion Writ Petition No.1669 of 2010 covering the instant Petition also by Bhausaheb Joti Patil, Additional Collector and Competent Authority, Thane Urban Agglomeration, Thane in which affidavit in Para 3 it has been stated that since there are residential houses of the landlord in Survey No.98/6, the possession of the said survey number has not been taken by the authority. 5 Pursuant to the directions issued by this Court as contained in the order dated 29th april 2010, Shri T C Benjamin, the Principal Secretary, Urban Development Department, has also filed an affidavit in reply in which it has been stated in para-5 as under :- “I say and submit that even though the possession of the land has been handed over to the Mumbai Metropolitan Region Development Authority by Circle Officer, Balkum on 02/07/2008, the actual possession of the said surplus land was not taken over as per the provisions of ULC Act, 1976 before 29/11/2007.” 6 The fact that the possession of the said land Survey No.98/6 has not been taken over by the authority can also been gathered from the possession receipt which is annexed to the affidavit filed by the MMRDA in Writ Petition No.1669 of 2010 which possession receipt clearly discloses that the possession of Survey No.98/6 has not been taken in view of the fact that the landlord’s house was situated in the said land. The learned AGP, on instructions, also does not dispute the said position. 3 WRIT PETITION NO.3297 OF 2010 7 In the aforesaid factual backdrop and in view of the law laid down by this Court in Voltas Ltd and ors. v/s. Additional Collector and Competent Authority (supra) the above petition is required to be allowed and is accordingly allowed in terms of the prayer clauses (b) and (c). Rule is accordingly made absolute with parties to bear their respective costs. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]