1 WRIT PETITION NO.5806 OF 2008 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5806 OF 2008 Datta Kamlakar Patil : Petitioner. Versus Additional Collector & Competent Authority and ors. : Respondents. Mr., S G Karandikar for the Petitioner. Smt.S S Bhende AGP for the Respondent Nos.1 to 3. Smt. Kiran Bagalia for the Respondent/MMRDA 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 challenges the order dated 30th June 2008 issued by the State Government allotting the land in question to the MMRDA. The Petitioner also seeks a declaration that the land in question ceases to vest in the State Government under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for the brevities sake referred to as “The said Act”) . The Petitioner has relied upon repeal of the said Act by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. ૩ 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 land 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, 2 WRIT PETITION NO.5806 OF 2008 an affidavit in reply is filed by Suresh Kakani, Deputy Secretary to Government, Urban Development Department. Para 11 of the said affidavit reads as under :- “I say that as per Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, it shows that Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 is saved. I further respectfully submit that sub section 2 of the Section 3 of the Urban Land (Ceiling Regulation) Act, 1999 states that 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. In view of this saving clause of the said Repeal Act, there is no substance in the contention of the Petitioner. Further, the surplus land of the Petitioner has been granted to the Respondent No.5-MMMRDA, Bandra for constructing the houses.” Thereafter an Additional Affidavit has been filed by B J Patil, Additional Collector and The Competent Authority, ULC, Thane specially dealing with the factum of possession. In para 2 thereof it has been mentioned that the possession of the excess land in dispute i.e. Gat No.99 Hissa No.3, i.e. old Survey No.64 Hissa No.3 situated at Bhyanderpada Tal. And Dist. Thane is not obtained by the Government. 4 Though the Petitioner has challenged the allotment letter dated 30th June 2008 on the grounds enumerated in the Petition, it is not necessary for us to go into the said aspect in view of the undisputed fact that the State Government has not obtained the possession of the surplus land. In view of the law laid down in Voltas Ltd and ors. v/s. Additional Collector and Competent Authority (Supra), the instant writ petition would have to be allowed and is accordingly allowed in terms of prayer clauses (b) and (c). Rule is accordingly made absolute. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]