1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.977 OF 2011 Sadashiv s/o. Mahadeo Malghade, Aged about 65 yrs., Occ. Agrilst., r/o. Sadashiv Nagar, Wathoda, Tq. and Distt. Nagpur. ........ PETITIONER // VERSUS // 1. State of Maharashtra, through its Secretary, Urban Development Department, Mantralaya, Mumbai. 2. Competent Authority and Additional Collector (ULC), Collectorate, Civil Lines, Nagpur. 3. The Tahsildar, Tehsil Office, Nagpur (City), Civil Lines, Nagpur. ........ RESPONDENTS 2 -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr. C.V.Kale, Adv. for the Petitioner. Mr.S.J.Jichkar, Adv. for the Respondents. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ****** Date of reserving the Order : 11.3.2011. Date of pronouncement of Order : 01.04.2011. ****** Coram: D. D. Sinha & A.P.Bhangale, JJ. ORDER (Per D.D.Sinha, J) : 1. Heard Mr. C.V.Kale, Adv. for the Petitioner and Mr.S.J.Jichkar, Adv. for the Respondents. 2. The learned Counsel for the petitioner has submitted that the petitioner is owner of the agricultural land bearing Khasra No.26, admeasuring 5.45 Hectares of mouza Wathoda, P.H. No.34A, Tq. Nagpur (City), District Nagpur. Since the said land was situated within the Nagpur urban agglomeration, the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the ULC Act of 1976”) were attracted and therefore, the petitioner had filed return u/s. 6 (1) of the ULC Act of 1976 on 1.9.1976 and on 30.9.1986, before respondent 3 no.2 (competent Authority). The case was registered as ULC Case No.266 of 1983. Respondent no.2, after careful scrutiny of papers and documents as well as return filed by the petitioner, passed an order u/s. 8(4) of the ULC Act on 2.4.1987. Respondent no.2 passed revised order on 6.5.2002 whereby the land admeasuring 1,500 sq. meters out of the aforesaid land has been declared retainable and the land admeasuring 54500 sq. meters has been declared surplus. 3. The learned Counsel for the petitioner has further submitted that the petitioner had applied for exemption u/s. 20 of the ULC Act. The competent Authority, after considering the request of the petitioner, passed an order dt. 21.07.2001. However, corrigendum was issued by the competent Authority dt. 4.9.2002 whereby the land admeasuring 25505 sq. meters has been exempted and it was further declared that the land admeasuring 19105 sq. meters out of the surplus land was to be handed over free of costs to the State Government as mentioned in the Corrigendum order dt. 4.9.2002. Counsel for the petitioner has specifically contended that physical possession of the land admeasuring 19105 sq. meters was never handed over to the Government nor there was any agreement to that effect executed between the petitioner and the Government. Possession of the entire land admeasuring 19105 sq. meters continued to be with the petitioner till date. 4 4. The petitioner had applied to the Government to release the land admeasuring 4843 sq. meters out of 19105 sq. meters, which was released by the State Government. However, possession of the remaining land of 14262 sq. meters continued with the petitioner, with the result that possession of the entire land admeasuring 19105 sq. meters continued with the petitioner. In the instant case, the issue pertains to land admeasuring 14262 sq. meters out of Survey No.26/1. It is further submitted that the petitioner also applied to the Government to release the land admeasuring 14262 sq. meters vide letter dt. 21.9.2002. The said application of the petitioner was not considered favourably by the State Government; however, physical possession of the said land admeasuring 14262 sq. meters continued with the petitioner till this date. The Counsel for the petitioner has submitted that respondent no.2 has never initiated any proceedings either u/s. 10(3) or u/s. 10 (5) of the ULC Act of 1976 for taking possession of the land admeasuring 14262 sq. meters and possession of the said land continued with the petitioner till today. 5. It is submitted that the Urban Land (Ceiling and Regulation) Act has been repealed w.e.f. 29.11.2007 by the Government of Maharashtra after the Urban Land (Ceiling and Regulation) Repeal Act, 1999 5 (hereinafter referred to as “ the Repeal Act ”) came into force. It is submitted that, after the Repeal Act came into force, vesting of those lands in the State Government, of which possession has been taken by the State Government, have been saved and if possession of the land has not been taken prior to 29.11.2007; even if the proceedings, if any, are initiated under the provisions of the ULC Act of 1976, the same stand abated. 6. The Counsel for the petitioner has submitted that possession of the land admeasuring 14262 Sq. Meters was not taken by the competent Authority and the same continued with the petitioner in spite of the Repeal Act came into force on 29.11.2007 and therefore, possession of the said land cannot be disturbed in view of Section 3(1)(a) or (b) of the said Act and the land admeasuring 14262 sq. meters does not vest in the State Government. It is submitted that, in the instant case, the State Government has not initiated proceedings under Section 10 of the ULC Act of 1976 for taking possession of the said land of the petitioner. Since possession of the land in question of the petitioner was not taken by the State Government by invoking proceedings u/s. 10 of the ULC Act of 1976, the State Government cannot invoke those proceedings u/s. 10 of the ULC Act of 1976 for taking possession of the land of the petitioner after 29.11.2007. And even if such proceedings would have been initiated 6 by the State u/s.10 of the ULC Act of 1976; however, possession of the land in question not taken by the State Government prior to 29.11.2007, in view of law declared by this Court in 2008(5) ALL MR 537 (Voltas Ltd. and anr. vs. Additional Collector and Competent Authority, Thane and Ors.), those proceedings u/s. 10 of the ULC Act of 1976 would have been automatically abated. 7. It is submitted that, in view of the provisions of Section 3(1)(a) of the Repeal Act vesting of any vacant land u/s. 10 (3) of the ULC Act of 1976, possession of which has not been taken by the Government prior to 29.11.2007, has not been saved and since the petitioner continued to be in physical possession of the land in question till this date, the proceedings even if would have been initiated by the State Government under the provisions of Section 10 of the ULC Act of 1976, after 29.11.2007, the same would have stand abated and the petitioner, therefore, is legally entitled to retain possession of the land in question admeasuring 14262 sq. meters out of Khasra No.26/1. 8. Counsel for the petitioner has submitted that respondent no.3 has filed an affidavit dt. 11.3.2011 and in para 4 of the said affidavit, has specifically admitted that the petitioner is in physical possession of the land admeasuring 14262 sq. meters till this date out of Khasra No.26/1 of 7 Mouza Wathoda, therefore, petitioner is legally entitled to hold possession of the said land and it does not vest in the State Government in view of law declared by the decisions of this Court in the case of V olta Ltd. and anr. (cited supra) and in the case reported in 2009 (3) Bom.C.R. 663 (Vithabai Bama Bhandari vs. State of Maharashtra and anr.). 9. It is the case of the petitioner that the State has granted exemption u/s. 20 (1) vide order dt. 21.7.2001; however, the State Government has not passed order u/s. 20 (2) of the ULC Act of 1976 withdrawing the said exemption nor proceedings are initiated u/ss. 10 (3) and 11 of the ULC Act of 1976. Possession of the land in question continued with the petitioner till this date and therefore, same does not vest in the State Government. Hence, it is prayed that declaration in this regard be given and respondent no.3 be directed to mutate the land in question in the name of the petitioner. 10. Mr.S.J.Jichkar, Assistant Government Pleader for the respondents has not disputed that, as per the report of Talathi, the petitioner is owner of the land admeasuring 14262 Sq. Meters out of Survey No.26/1 and is in possession of the said land till today. It is also not disputed that the petitioner filed return u/s.6(1) of the ULC Act of 1976 on 1.9.1976 and 30.9.1983 and order u/s. 8 (4) of the ULC Act of 8 1976 was passed on 2.4.1987 declaring an area admeasuring 212937.33 sq.meters as surplus by allowing an area of 7225.95 sq. mts. as retainable land to the petitioner. The affidavit filed by respondent nos. 1 and 2 shows that the petitioner and others filed a Scheme u/s. 20 (1)(a) of the ULC Act of 1976 in respect of the land out of survey no.26 and the State Government has sanctioned the Scheme u/s. 20(1)(a) vide order dt. 21.7.2001. As per the condition of the said sanction order, the land owner had to hand over the land admeasuring 8952.49 sq. meters without encumbrances to the Government before providing plots and before commencing the work of tenements on the exempted land. 11. The stand taken by the State Government in the affidavit further shows that the petitioner and others filed revision application u/s. 34 of the ULC Act of 1976 before the State Minister, who has, vide order dt. 4.12.2001, allowed the revision application and remanded the matter back to the competent Authority for fresh enquiry. The competent Authority after due enquiry passed revised order on 6.5.2002 and allowed the retainable land admeasuring 1500 sq. mts. to the land owner and the land admeasuring 58472 sq. mts. was declared as surplus vacant land. The competent Authority has issued Corrigendum on 4.9.2002 whereby it has exempted an area admeasuring 25505 sq. meters from the purview of the ULC Act of 1976. As per the said corrigendum, the Government was 9 entitled to get the land free of costs admeasuring 19105 sq. mts. as share of the Government. 12. The stand of the State Government reflected in the affidavit filed by respondent nos. 1 and 2 demonstrates that it is not in dispute that the land admeasuring 4842. 59 sq. metres out of 19105 sq. meters (Government share) was released in favour of the petitioner vide order dt. 14.1.2005. After release of the said land in favour of the petitioner, the share of the Government was reduced to 14262 sq. meters. Possession of the same continued with the petitioner till date. The affidavit further shows that the State Government had allotted said land admeasuring 14262 sq. meters to the Education Society u/s.23 of the ULC Act of 1976 on 10.10.2003 for educational purposes. However, said allotment has been cancelled by the State Government vide order dt. 18.9.2010. The affidavit filed by respondent nos. 1 and 2 further reveals that physical possession of the land admeasuring 14262 sq. meters was not handed over to the Education Society; however, only paper possession was shown to be given to the said Society. 13. It is the case of the respondents that the land of the petitioner was exempted u/s. 20 (1) of the ULC Act of 1976 and as per clause (3) of the exemption order, it was necessary for the petitioner to hand over 10 specified portion of the land free of costs to the Government. It is the case of the respondents that, as per the order of Division Bench of this Court dt. 24.8.2009 passed in Writ Petition 2420 of 2009 (Devnram Dattaram Patil and Ors. vs. State of Maharashtra and Ors.), the Scheme sanctioned u/s. 20 has been saved even after the Repeal Act came into force and therefore, it is not permissible for the petitioner to have taken advantage of the Scheme and now to contend that their application does not survive after repeal of the Act came into force. Similarly, reliance is also placed by the respondent on another decision of this Court dated 11th October, 2010 rendered in Writ Petition No.4141 of 2010 (Shri Waman Bandu Bhoir and anr. vs. State of Maharashtra and Ors.) in order to show that Section 3(1)(b) of the Repeal Act shall not affect validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder and grant of exemption in respect of the land which was in excess of ceiling limit as well as action, if any taken by the State Government thereunder in view of Section 20(1) is saved. Similarly, any action taken by the State Government against the Scheme holder under sub-section (2) of Section 20 prior to coming into force of the Repeal Act is also saved and therefore, the petitioner is not entitled to retain possession of the land and the said land vests in the State Government. 14. We have considered the contentions canvassed by the learned 11 Counsel for the respective parties. Perused the affidavit filed by respondent no.3, report of Talathi annexed with the said affidavit as well as affidavit filed by respondent nos. 1 and 2 and additional affidavit filed by the petitioner (the parties were permitted to file these affidavits). In the instant case, as per the contentions of the parties and the facts stated in the affidavit and additional affidavit filed by the parties, the following facts are not in dispute : a) The petitioner filed return u/s. 6(1) of the ULC Act of 1976 on 1.9.1976 and 3.9.1983. The competent Authority passed an order u/s. 8(4) of the ULC Act on 2.4.1987 and revised order u/s. 8 (4) on 6.5.2002 whereby the land admeasuring 58472 sq. meters was declared as surplus and the petitioner was permitted to retain the land admeasuring 1500 sq. meters. b) The competent Authority has issued Corrigendum dt. 21.7.2001 whereby the land admeasuring 25505 sq. meters was exempted u/s. 20(1)(a) from the purview of the ULC Act of 1976 and the land admeasuring 19105 sq. meters came to the share of the Government. c) The land admeasuring 4842.59 sq. meters 12 out of land admeasuring 19105 sq. meters was returned to the petitioner by the Government whereby the share of land of the Government was reduced to 14262 sq. meters. d) The State Government allotted land admeasuring 14262 sq. meters to the Education Society vide order dt. 10.10.2003 out of share of the Government. The said allotment came to be cancelled by the Government vide order dt. 18.8.2010. e) In spite of allotment of the said land to the Education Society, physical possession of the said land was never handed over to the said Society and only paper possession of the said land was shown to have been handed over to the said Society. f) In para 4 of the affidavit filed by respondent no.3, dt. 11.3.2011, it is specifically admitted by respondent no3 that physical possession of the land in question admeasuring 14262 sq. meters out of Survey No.26/1 of mouza Wathoda is with the petitioner till date. The said statement made by respondent no.3 in para 4 of the affidavit is based on the report of the Talathi dt.3.3.2011, which is annexed with the said affidavit. g) It is not in dispute that the State 13 Government or the competent Authority has never passed any order u/s. 20 (2) of the Act of 1976 withdrawing the original exemption granted u/s. 20 (1) of the ULC Act. h) The State Government and the competent Authority never initiated proceedings u/s. 10 of the ULC Act of 1976 for taking over possession of the land in question either before 29.11.2007 or thereafter nor possession of the land in question admeasuring 142262 sq. meters was taken by the State Government before 29.11.2007 by invoking proceedings of Section 10(3) of the ULC Act of 1976, which continued with the petitioner till today. 15. In view of the above referred undisputed facts, it is evident that the State Government has not initiated proceedings u/s. 10 (3) of the ULC Act of 1976 in respect of land of the petitioner admeasuring 14262 sq. nor has taken possession of the said land before 29.11.2007. The State Government has also not withdrawn the order of exemption dt. 27.7.2001 passed u/s. 20 (1) of the ULC Act of 1976 by exercising power u/s. 20 (2) of the ULC Act and possession of the land in question continued with the petitioner till today. The question which arises for our consideration is as follows : 14 “ Whether the land of the petitioner automatically vests in the State even though the State has not withdrawn the order of exemption dt. 21.7.2001 passed u/s. 20 (1) of the ULC Act of 1976 by exercising power u/s. 20 (2) of the said Act ? 16. The issue needs to be considered in the light of the decisions cited and relied on by the parties. In para 11 of the judgment in the case of Voltas Ltd. and anr. (cited supra), this Court has observed thus : (relevant portion of para 11 is re-produced below :) “ In our opinion, therefore, it is clear from the provisions of the Repeal Act that as a result of the Repeal Act neither any proceedings can continue nor the State Government can claim that the land continued to vest in it if possession of the land in relation to which declaration under sub-section (3) of Section 10 of the Principal Act has been made, has not been taken before 29.11.2007. In other words to claim that vesting of the land in the State Government is saved, it will have to be shown by the State Government that the possession of the land in accordance with the provisions of the Principal Act has been taken by the Government before 29.11.2007. “ 15 17. Similarly, this Court in the case of Voltas Ltd. and another (cited supra) in para 14 has observed thus : (relevant portion of paragraph 14 is re-produced below) : “ In our opinion, therefore, it is clear from the provisions of the Repeal Act that neither the proceedings after the remand order made by the State Government can continue after 29.11.2007 nor can the State Government claim that the land of the petitioners which was subject matter of the notification under sub-section (3) of Section 10 of the Principal Act, possession of which has not been taken by the State Government continues to vest in the State Government. “ 18. The Division Bench of this Court in the case of Vithabai Bama Bhandari (cited supra) in para 39 has declared the law pertaining to effect of repealing the ULC Act of 1976 by observing thus : “ Where certain land of a person was declared as surplus under the Urban Land Ceiling Act, 1976 but the possession of the said surplus land was not taken over by the prescribed authority under the Act the effect of repeal of the ULCA, 1976 under the Urban Land (Ceiling 16 and Regulation) Repeal Act, 1999 under section 4 would be that the legal proceedings would be abated. However, if the possession was already taken over by the prescribed authority, the same shall not abate. “ 19. Similarly in paragraph 45 of the decision of this Court in the case of Vithabai Bama Bhandari (cited supra), this Court has observed thus : “ The purpose of enacting section 3(1)(a) of the Repeal Act is to save or protect vesting of vacant lands in the State Government from and out of the vacant lands that might have vested in the State Government by virtue of declarations made under sub-section (3) of section 10 of the Principal Act, of which possession has been taken. Therefore, by necessary implication it follows that vesting of those lands in the State Government under sub-section (3) of Section 10 of the Principal Act of which possession has not been taken has been repealed or made ineffective. “ 20. In the case of Voltas Ltd. and another (cited supra), the issue was concluded by this Court by observing in para 15 thus : 17 “ In the result, for the reasons recorded, the petition succeeds and is allowed. It is held that as a consequence of the Repeal Act, further proceedings pursuant to the order made by the State Government dated 30.10.2006 abate and can no longer be proceeded further. That all further proceedings under the provisions of the Principal Act in relation to the land of the petitioner no.1 mentioned in the declaration made under sub-section (3) of section 10 of the Principal Act lapses and those lands no longer vest in the State Government. Rule made absolute accordingly. No order as to costs.” 21. Plain reading of the above referred observations made by this Court in the above referred decisions make it implicitly clear that even if declaration under sub-section (3) of Section (10) of the ULC Act of 1976 has been made and even if notice u/s. 10 (5) under the ULC Act of 1976 was issued but actual physical possession of the land was not taken over by the State Government or the competent Authority under the ULC Act of 1976, vesting of such vacant land under sub-section (3) of Section 10 of the ULC Act of 1976 in the State Government is not saved as per sub- clause (1)(a) of Section 3 of the Repeal Act. In other words, vesting of vacant lands under sub-section (3) of Section 10 of the ULC Act of 1976 in the State Government, possession of which has not been taken over, is 18 not saved and the proceedings even if initiated under the provisions of the ULC Act of 1976 in respect of the land of which possession has not been taken over by the State government, shall stand abated. In the instant case, it is not in dispute that the petitioner is owner of the land admeasuring 14262 sq. meters out of Khasra No.26/1. It is also not in dispute that the petitioner continued in physical possession of the said land till this date and exemption order dt.21.7.2001 not being withdrawn, the question of vesting of said land under sub-section 3 of Section 10 of the ULC Act of 1976 in the State Government does not arise. Even otherwise, the State Government has not initiated the procedure stipulated under sub-section (3) of Section 10 for taking possession of the land in question nor has taken action u/s. 20 (2) of the ULC Act of 1976 and therefore, the land in question does not vest in the Government. 22. In the decision of this Court in the case of Shri Waman Bandu Bhoir and another .vs. State of Maharashtra and Others (Writ Petition No.4141 of 2010) relied on by the State, in para 18, has observed thus : “ When any such exemption is withdrawn or deemed to be withdrawn under these conditions, the provisions of the Chapter-III of the said Act shall apply to the lands as if the land had not been exempted under this order. “ 19 23. The above referred observations clearly demonstrate that, on breach of condition of exemption order by the land holder and after withdrawing the exemption u/s. 20 (2), there is no automatic vesting of land in the State Government and for taking over possession of such land, the same shall be governed by the provisions of Chapter III of the ULC Act of 1976. In Chapter III, the only provision which deals with acquisition of vacant land in excess of the ceiling limits, is the provisions of section 10 of the ULC Act of 1976. In the instant case, the provisions of Section 10 of the ULC Act of 1976 were not invoked by the State Government for taking possession of the land in question till this date and possession of the land continued with the petitioner; hence, the land of the petitioner in question did not automatically vest in the State since the exemption order dt. 27.1.2011