1 Writ Petition No.8557/07 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8557 OF 2007 M/s. Pigments & Dyestuffs Pvt. Ltd. ..Petitioners Vs. State of Maharashtra & ors. ..Respondents Mr. S.U.Kamdar Sr. Advocate a/w Mr. Rahul Kelkar i/b M/s. Crawford Bayley & Co. for the Petitioners Mr. V.S.Gokhale AGP for State Coram: P.B.MAJMUDAR AND R.M. SAVANT, JJ. 20th July, 2010 P.C. 1. This Petition filed under Article 226 of the Constitution of India, takes exception to the order dated 23-10-2007 passed in exercise of the revisional power under Section 34 of the Urban Land (Ceiling and Regulation) Act, (for brevities sakes referred to as the said Act) and the consequential demand notice dated 15-11-2007, by which demand notice, the Petitioners are called upon to pay an amount of Rs.14,20,84,690/- , in view of the fact that the Petitioners have carried out construction on the land declared as surplus, by the said order dated 23-10-2007. 2 Writ Petition No.8557/07 2. Shorn of unnecessary details, the facts necessary to be cited for a decision in the matter, can be stated thus: The Petitioners were owning certain lands in Thane District. The said lands were situated in Kalyan and Ulhasnagar. The Petitioners had obtain permission of the concerned Grampanchayat for carrying out construction on the land, which the permission was granted on 2-11-1972. In accordance with the said permission, the Petitioners had put up construction up to the plinth level. The Grampanchayat thereafter, granted extension of time to the Petitioners for completing the construction of the building on the land at Thane. On the said Act coming into force, the Petitioners filed a statement under Section 6(1) of the said Act on 14-9-1976. It is the case of the Petitioners that on 30-11-1983 an exparte order under Section 8(4) of the said Act came to be passed, by which order an area of 14523 sq.mtrs. in respect of Thane Urban Agglomeration and an area of 53306.94 sq.mtrs. in respect of Ulhasnagar Urban Agglomeration were declared as surplus vacant land. Thereafter, a Notification under Section 10(1) of the said Act in respect of surplus land came to be issued. The Petitioners aggrieved by the said ex parte order under Section 8(4) filed an Appeal before the Additional Collector Thane, who by his order dated 21-6-1988, set aside the said ex parte order dated 30-11-1983 and remanded the matter back to the Competent Authority for de novo consideration, as regards the surplus vacant land held by the Petitioners. On such remand the Competent Authority passed an order under Section 8(4) on 30-9-1988 thereby declared the land ad measuring 4324.27 3 Writ Petition No.8557/07 sq.mtrs. in respect of Thane agglomeration and land ad measuring 50,003.05 sq.mtrs. in respect of Ulhasnagar agglomeration, as surplus vacant land. It appears that thereafter, the Petitioners in view of the constructions that were existing on the land in question, applied for permission under Section 22 of the said Act for redevelopment of the area occupied by the said structures. Thereafter, correspondence ensued between the parties which according to us is not relevant for the purpose of the present Petition. However, suffice it to say that by order dated 10-5-2002, the redevelopment permission under Section 22 of the said Act came to be granted to the Petitioner. 3. In terms of the said order dated 10-5-2002, the Petitioners were directed to obtain a revised order under Section 8(4) of the said Act. The Petitioners drew the attention of the authorities to the fact that the revised development plan, so far as the city of Thane, had already come into force from the year 1993 and, therefore, requested the authorities under the said Act to issue the revised order. It appears that on 25-10-2002, the Thane Municipal Corporation issued a commencement certificate for construction on the Thane lands. The Petitioners in pursuance to the said commencement certificate have carried out construction of 3 towers as well as the commercial building known as Soham Plaza. Ultimately by order dated 13-12-2002 passed under Section 34 of the said Act, the Competent Authority Ulhasnagar was directed to issue a revised statement under Section 8(4) of the said Act. The Competent Authority 4 Writ Petition No.8557/07 accordingly by its order dated 31-3-2002 issued a revised 8(4) order. Thereafter, it seems a Notification under Section 10(1) of the said Act came to be issued in respect of the area of 320 sq.mt declared as surplus and an order thereafter was passed on 24-2-2003 granting exemption for the area declared as surplus. The matter rested there for sometime. Thereafter on account of complaints received from two persons in respect of section 8(4) passed in favour of the Petitioners, which complaints were dated 19-1-2004 and 4-9-2004. The proceedings were restarted, and the Petitioners received a notice from the State Government, informing the Petitioners that by an order dated 12-6-2006 passed by the Hon’ble Chief Minister, permission dated 21-6-1988 and 13-12-2002, were cancelled and stay was granted in respect of the development work on the lands in question. The Petitioners in response to the said notice, filed their Say and submitted various documents in support of their case. The say and the said documents were submitted before the Commissioner Konkan Division. The Commissioner, Konkan Division, it appears, submitted his report to the State Government. The Petitioners also represented against the report submitted by the Commissioner. The notice issued to the Petitioner ultimately culminated in the order dated 23-10-2007, purportedly passed in exercise of the powers under Section 34 of the said Act. By the said order dated 23-10-2007 the order dated 13-12-2002, the letter of intent dated 10-4-2002 as well as the original 8(4) order dated 30-9-1988 were set aside. The Petitioners were thereafter, issued a demand notice calling upon them to pay an amount of Rs.14,20,84,690/-. This was in view of the fact that the 5 Writ Petition No.8557/07 Petitioners had already carried out construction on the land declared as surplus by the order dated 23-10-2007. The Petitioners were informed that in default, the said amount of Rs.14,20,84,690/- would be recovered as arrears of land revenue. The Petitioners were also threatened with criminal prosecution under Section 38 of the said Act. 4. The conspectus of the fact as disclosed above shows that the proceedings under the said Act have been going on since the year 1988. Pursuant to the first revision carried out in the year 2002, a revised 8(4) order came to be issued. The Petitioners have also been granted a permission under Section 22 of the said Act for carrying out redevelopment of the structures, which were existing on the land in question, on the appointed date. The Petitioners have impugned the order dated 23-10-2007 passed in revision as well as the demand notice, inter alia on the following grounds namely that there has been inordinate delay in exercise powers under Section 34 of the said Act. The second ground is that in exercise of the revisional powers, the authorities could not have issued the directions to the extent and manner issued in the impugned order of asking the Petitioners to pay penalty of Rs.14,20,84,690/- for carrying out construction on the land now declared as surplus and that the revisional powers could not be exercised by the State Government for a second time. 6 Writ Petition No.8557/07 5. On behalf of the State Government an Affidavit in reply has been filed by one Mr. S.B.Patankar, Under Secreary to Government of Maharashtra. The substance of what has been said in the Affidavit is that the 8(4) order passed in the year 1988 as well as, the revised 8(4) order has been passed on account of the fraud played by the Petitioners in the matter of disclosing that some structures were supposedly existing on the land in question. It will have to be borne in mind that, the authorities under the said Act were dealing with the issue which were arising under the said Act from time to time and have passed various orders, which we have adverted to in the earlier part of this order. 6. In the light of the assertions of the parties a question, therefore, would arise whether it can be said that the said orders were obtained by fraud by the Petitioners. Be that as it may, in the intervening period, the said Act has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. In terms of the Repeal Act, only those proceedings or orders have been saved which have been mentioned in the saving clause 4 of the said Repeal Act. As otherwise, all the proceedings are said to have been abated on account of the repeal. Hence, even if we were to set aside the orders passed by the revisional Authority and relegate the matter back, the same would not serve any purpose, in view of the repeal of the said Act, as no proceedings can now be continued. However, in so far as the challenge that is raised in the above Petition on the grounds mentioned herein above, the issue is no more res integra and is covered by the Division Bench 7 Writ Petition No.8557/07 Judgment of this Court dated 6th May 2010, in Writ Petition No.153 of 2008 in the matter of Anil Nemichand Bafna and ors v/s. State of Maharashtra and anr (to which one of us P B Majmudar, J was a party). The said Judgment deals with the identical grounds of challenge namely ground of inordinate delay as also the ground that no directions in the matter of recovery of penalty can be imposed, at the time of passing of the order under revision. Hence, it is not necessary for us to go into other aspects which according to us are not germane in the light of the repeal of the said Act. Therefore, in the light of the view that the Division Bench of this Court has taken in Anil Bafna’s Case (Supra), the above Petition is required to be allowed and is accordingly allowed in terms of prayer clause (a). Rule is accordingly made absolute to the said extent with parties to bear their respective costs. (R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)