1 WRIT PETITION NO.1669 OF 2010 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1669 OF 2010 Shri Gajanan Kamlya Patil : Petitioner versus The Additional Collector and Competent Authority (ULCT) and ors. : Respondents. Mr. Manoj J Bhatt for the Petitioner. Smt. S S Bhende, AGP for the Respondents/State. Smt. Kiran Bagalia for the Respondent/MMRDA CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 12th July 2010 P.C. 1 Rule, made returnable forthwith with the consent of the parties and heard. 2 This Petition, filed under Article 226 of the Constitution of India, takes exception to the Notice dated 17th February 2005 issued to the Petitioner under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (for the brevities sake referred to as “The said Act”) The said notice has been issued to the Petitioner in respect of the lands bearing Survey Nos.47/10 and 54/4 admeasuring 1190 sq.mtrs and 1870 sq.mtrs respectively situated at Mogharpada and Kasar-Wadawali Tal and Dist.Thane. 3 The Petitioner also claims a declaration that in view of the repeal of the said Act, all the proceedings including taking over possession of the lands in question have abated. 2 WRIT PETITION NO.1669 OF 2010 4 A notice under Section 10(1) of the said Act in respect of the lands in question in the present Petition was issued to the Petitioner by the Respondents on 17th February 2000, followed by a Notification under Section 10(3) of the said Act was issued on 2nd August 2002 and, thereafter the impugned notice under Section 10(5) came to be issued on 17th February 2005 to the Petitioner calling upon him to hand over the possession of the lands in question. The said Act came to be repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The Petitioner has sought benefit of the said repeal inasmuch as it is the case of the Petitioner that on such repeal of the proceedings initiated under the said Act have abated. 5 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, initially an affidavit in reply came to be filed by Bhausaheb Joti Patil, Additional Collector and Competent Authority, Thane Urban Agglomeration, Thane in which affidavit in Para 5 it has been averred as under :- “I say that the State of Maharashtra has adopted the Repeal Act, 1999 w.e.f. 29-22-2007. I say that as per the statutory provisions, this Respondent has completed the procedure in respect of the subject land declaring the surplus land u/s. 10(1), 10(3) and 10(5) of the ULC Act, and therefore the land is vested with the Government and the same has been handed over to the MMRDA and therefore, the Petition filed by the Petitioner is required to be dismissed” 3 WRIT PETITION NO.1669 OF 2010 6 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 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.” 7 Since it is the case of the State Government that the possession was handed over to the Mumbai Metropolitan Region Development Authority, the said Authority has also filed an affidavit of one Chandrakant Karbhari Abhang, the Assistant Lands’ Manager (I/c) of MMRDA in which it has been stated that the possession of the Survey No.54/4 was handed over to the MMRDA on 2/7/2008. The affiant goes on to state that he was personally present and he has signed the possession receipt. It has further been averred in Para-7 that to protect possession of the land in question, the MMRDA has erected fencing and has put up its board. The photographs in support of the said averment have been annexed to the said affidavit. 8 In the light of the affidavit filed on behalf of the State, the learned counsel for the Petitioner would contend that the State Government could not have handed over the possession of the lands in question on 2nd July 2008 after the repeal of the said Act which repeal has come into force on 29th September 2007. The learned counsel for the Petitioner would further contend that since it is an admitted position that the possession has not been obtained by the State Government prior to 29th September 2007, no possession could have been handed over to the MMRDA. 4 WRIT PETITION NO.1669 OF 2010 9 On behalf of the MMRDA it is contended by the learned counsel Ms Bagalia that the MMRDA is a local authority and has taken over the possession of the lands in question when asked to do so by the State Government and therefore it was not necessary for the MMRDA to go into the antecedents as to whether the possession of the lands in question was in fact obtained by the State Government. She further submitted that presently the MMRDA is in possession of the lands in question and has tried to protect its possession by employing security guards and putting up fencing. Though it is the case of the Petitioner that he is still in possession and he is cultivating the lands in question, the photographs produced by the MMRDA belie the said position. 10 In our view, since the MMRDA is in possession of land Survey No.54/4, it is not necessary for us to go into rival contentions. It would be open for the Petitioner to file appropriate civil suit to agitate his grievance in respect of possession. The Petitioner in the said suit would be entitled to rely upon the pleadings which are the part of the present proceedings. In case such a suit is filed by the Petitioner, needless to say that same would be tried on its own merits and in accordance with. 11 In so far as land Survey No.47/10 is concerned, admittedly, the possession of the said Survey No.47/10 has not been taken over by the MMRDA. Therefore, the relief claimed by the Petitioner in respect of the said Survey No.47/10 is required to be granted. The proceedings in respect of the said land can be said to have abated in view of the repeal of the said Act. 5 WRIT PETITION NO.1669 OF 2010 12 With the aforesaid observations, we partly allow the instant writ petition with liberty to the Petitioner as above in so far as Survey No.54/4. Rule made absolute to the aforesaid extent. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]