IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8571 of 2007 WRIT PETITION NO.8571 of 2007 WRIT PETITION NO.8571 of 2007 Suresh A. Patil & Others ..Petitioners versus Nashik Municipal Corporation ..Respondent alongwith alongwith alongwith WRIT PETITION NO.4193 of 2005 WRIT PETITION NO.4193 of 2005 WRIT PETITION NO.4193 of 2005 Rajendra R. Bagad & Others ..Petitioners versus Nashik Municipal Corporation ..Respondent alongwith alongwith alongwith WRIT PETITION NO.4202 of 2005 WRIT PETITION NO.4202 of 2005 WRIT PETITION NO.4202 of 2005 Ganesh P. Tambat ..Petitioner versus Nashik Municipal Corporation ..Respondent alongwith alongwith alongwith WRIT PETITION NO.4203 of 2005 WRIT PETITION NO.4203 of 2005 WRIT PETITION NO.4203 of 2005 Jayesh P.Sonchatra ..Petitioner versus Nashik Municipal Corporation ..Respondent alongwith alongwith alongwith WRIT PETITION NO.4204 of 2005 WRIT PETITION NO.4204 of 2005 WRIT PETITION NO.4204 of 2005 Chandrakant R. Bagad & Others ..Petitioners -2- versus Nashik Municipal Corporation ..Respondent alongwith alongwith alongwith WRIT PETITION NO.4205 of 2005 WRIT PETITION NO.4205 of 2005 WRIT PETITION NO.4205 of 2005 Smt. Shantidevi R. Ramchandani & Another ..Petitioner versus Nashik Municipal Corporation ..Respondent Mr.R.D.Soni i/b. Ram & Co. for the Petitioner Mr.V.A.Gangal with V.P.Pandey for the Respondent Nos.1 and 2. Mr.V.S.Gokhale AGP in W.P.8571/07 & 4193 of 2005 Mr.C.R.Sonawane AGP in W.P.4202/05 to 4205/05 CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. DATED : 12th June, 2008. DATED : 12th June, 2008. DATED : 12th June, 2008. P.C. 1. In all these petitions the same communication from the State Government is challenged. All the petitions except Writ Petition 8571 of 2007 have been admitted. Hence in Writ Petition No. 8571 of 2007 Rule made returnable forthwith by consent of all parties. 2. We have heard learned Counsel appearing for -3- both the sides. These petitions have been filed by the persons who hold plots in Survey Nos.226(1) of Nashik. It appears that proceeding in relation to the land under Section 8(1) of the Urban Land Ceiling Act were decided by the Competent Authority, Nashik by Order dated 30.4.1998 holding that no land from this survey number can be declared as surplus. The Government, it appears in the year 2005 decided to initiate proceeding under Section 34 of Urban Land Ceiling Act for revising the Order dated 30.4.1998 and in view of the proposal to the State Government to revise the Order, letter dated 13/15 May, 2005 was issued. Relevant portion of which reads as under: "For the execution of the Orders under 8(4), hereby suspension is given till the final orders of the reconsideration. Therefore, the permission should not be given for transferring the said land, as such inform to the concerned officers from your level and submit execution report to the government in this regard" 3. Writ Petition No.4192 of 2005 was filed in this Court on 21.6.2005 challenging the same communication from the State Government dated 17.5.2005. In that petition on 6.7.2005 this Court -4- passed following Order. AGP seeks time to file reply. Stand over to 1.8.2005. In the meantime and until further orders the respondents are directed not to take any further action on the basis of the letters dated 17.5.2005 and 8.6.05. Letter dated 8th June, 2005 written by the Corporation is a consequence of the letter dated 17th May, 2005. Therefore, basically what was challenged in the said petition was the said letter dated 17th May, 2005. The Government by the interim order dated 6.7.2008 was restrained from making any further orders. 4. On 1.5.2005 the petition was admitted and the interim order was continued. Thus the State Government could not make Order under Section 34 modifying or the setting aside the order made under Section 8 of the Act holding that there is no surplus land. In the meantime Urban Ceiling Act itself has been repealed and the repeal has come into force on 29.11.2006 and therefore in terms of the repealing and saving clause as the proceedings -5- are pending under the provisions of the Act and possession of the land has not been taken revision proceeding have lapsed. The position as stands today is that as there is a notice issued under Section 34 whereby the State Government proposes to revise the order passed under Section 8. That notice itself was stayed by this Court and therefore the Government could not make any order till the Act was repealed. Now there is no dispute that in view of the repeal the Act Government does not have power to go ahead with the revisional proceeding. Even if the Act had not been repealed, as the Government was proposing to revise the order dated 30.4.1998 passed under Section 8(4) of the Urban Ceiling Act in the year 2005, in view of the judgment of the Division Bench of this Court in case of Automotive Research Association of India vs. State of Maharashtra and Ors. the State Government could not have exercised its powers under Section 34 in relation to the Order passed in 1994. This Court in the abovesaid judgment has clearly held that the power under Section 34 is to be exercised by the Revisional Authority within a reasonable period and this Court has held that three years would be the reasonable period. Thus, -6- even if the Act had not been repealed the Government could not have varied or modified the Order made under Section 8. In any case, now because of the repeal no Order can be made by the Government and thus as the Government is not in a position to make the Order modifying the Order dated 30.4.1998 passed under Section 8 there is no purpose in continuing the restrain imposed by the Government on transferring and development of the land. Taking overall view of the matter, in our opinion, therefore the petition will have to be allowed. Hence the order. . Communication dated 17.5.2005 from the State Government which is impugned in all these petitions is set aside. . Rule made absolute accordingly. . No order as to costs. (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)