1 wp571.07.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 571 OF 2007 Lawrence Desa & Ors. ....Petitioners. Vs. State of Maharashtra & Ors. ...Respondents. Dr. Milind Sathe, Sr. Advocate with Mr. Rajiv Narula i/by M/s. J. Narula & Associates for the Petitioners. Mr. Milind More, AGP for the Respondents. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 17 NOVEMBER, 2011. P.C. :- Admitted facts are that after commencement of the Urban Ceiling Act, the Petitioners filed return under the Act. The case of the Petitioners was that the portion of the land held by the Petitioners was given on lease to Mercantile Bank and Chartered Bank and therefore that land should not be included in holding. However, when final statement under Section 8(4) was made, land admeasuring 4224.03 sq. meters from the holding of the Petitioners was declared as in excess of the ceiling area. 2 wp571.07.sxw ssm 2 In the final statement it is mentioned that land from Survey No. 8, 8/1-5 of Borivali is in possession of the Hong Kong and Shanghai Bank as lessee and land from Survey No. 9.9/1-3 is in possession of the Chartered Bank on lease. However, as it is evident from the final statement signed by the Additional Collector and Competent Authority the same land was declared as surplus. In the final statement it is also mentioned that there is building standing on both these lands. It appears that notification under Sub-Section (1) of Section 10 of the Urban Ceiling Act was published in the Official Gazette on 31 December 1981 and notification under Sub-Section (3) of Section 10 of the Urban Ceiling Act was published on 25 August 2005. It appears that on 25 January 2006 an order under Sub-Section (5) of Section 10 was issued to the Trust which had filed the return, asking them to deliver possession of the land on 2 March 2006. 3 It is the case of the Respondents that on 2 March 2006 according to the order dated 25 January 2006 ex-parte possession of the surplus land was taken. The Petitioners dispute that possession. According to them the possession of the surplus land even as per the final statement was with the two banks as lessees. Admittedly no notice and order under Sub-Section (5) of Section 10 has been issued to the two banks 3 wp571.07.sxw ssm and therefore, the Respondents are not justified in contending that they have taken possession of the surplus land in accordance with the provisions of Sub-Sections (5) and (6) of Section 10 of the Urban Ceiling Act. According to the Petitioners therefore, as possession of the land declared surplus under the Urban Ceiling Act was not taken on or before 29 November 2007, when the Urban Ceiling Act was repealed in the State of Maharashtra, all further proceedings under the Urban Ceiling Act in relation to the land in question are lapsed. They rely on the Judgment of the Division Bench of this Court in Voltas Ltd. Vs. Additional Collector & Competent Authority 1 . The submission made on behalf of the Respondents is that return was filed by the Trust and therefore, order was issued to the Trust to deliver possession. It was contended that the lease in favour of the banks had come to an end and therefore, possession was validly taken of the surplus land. 4 There is no dispute before us that in the final statement the land which is declared as surplus was shown as a land which is built upon and which is in possession of the two banks as lessees. So far as the lease in favour of those banks are concerned, in paragraph 5 of the 1 2008(5) Bom. C.R. 746 4 wp571.07.sxw ssm Affidavit of Anil Patil filed on behalf of the Respondents states thus:- “I say that the Petitioner’s contention that the land was leased out to the ‘Chartered Bank’ and Mercantile Bank. While passing the 8(4) order the C.A. has observed that both the Banks have admitted that the lease period has expired but, they are in occupation and possession of the land and the Trustees have agreed to grant fresh lease, but the lease was not granted. The C.A. therefore held on the material date none of the two banks were holder of the land in any capacity. It appears that subsequently in the year 1994 the lease was renewed.” 5 It is thus clear that according to the knowledge of the Respondents the two banks were in possession and occupation of the surplus land. Perusal of Sub-Section (5) of Section 10 shows that a direction is to be issued under that provision to the person in possession to deliver possession. Person in possession for the purpose of Sub-Section (5) of Section 10, in so far as the excess land declared as surplus in the present case is the two banks. The original record has been produced by the learned AGP before us. It does not show that any notice or order was issued for delivery of possession to the two banks. Therefore, we find that the Petitioners are justified in contending that possession of surplus land was not taken in accordance with the provisions of Urban Ceiling Act before 29 November 2007. If that is so, obviously, therefore, in view of the 5 wp571.07.sxw ssm judgment of the Division Bench refered to above, all proceedings in relation to the land of the Petitioners under the Urban Ceiling Act which would automatically lapsed. 6 In the result, therefore the Petition succeeds. The rule is made absolute in the above terms. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)