1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7970/2008 Kamlakar R.Kharate @ Mhatre Petitioner Vs. The Additional Collector & Competent Authority(ULC) & Ors. Respondents Mr.M.J.Bhat for petitioner Ms.M.P.Thakur,AGP for State Coram :J.N.Patel & Mrs.Mridula Bhatkar,JJ. Date :26th June,2009 P.C.(Mrs.Mridula Bhatkar,J.) . Rule. 2] Rule returnable forthwith and heard finally by consent . 3] By the present petition, the petitioner is challenging thelegality,validity and propriety of the notice dated 8/2/2005 under section 10(5) of the Urban Land (Ceiling & Regulation)l Act,1976 issued by respondent no.1 in pursuance of order under section 8(4) ,dated 19/7/1982 passed by respondent no.1 threatening to take possession of the property under the provisions of Repealed Urban 2 Land (Ceiling & Regulation)l Act,1976 thereby declaring 2237 sq.mtrs land of the petitioner as surplus bearing Survey no.248 ,situates at Kavesar and also for declaration that notification dated 8/8/2002 u/s 10(3) of the Urban Land (Ceiling & Regulation)l Act,1976 passed by respondent no.1 has become null and void and non-est. It is contended by the petitioner that yet the possession of the land is not taken by the respondents . 4] The respondents have filed affidavit in reply opposing the petition. It is agreed by them that the possession of the land was not taken by the respondents and it is with the petitioner. 5] The Urban Land (Ceiling & Regulation)Act,1976 was repealed on 29/11/2007 and so the proceedings under the said Act are abated since the said date. In the present matter the Government has not taken any steps for possession of the surplus land under section 10(3) of the said Act prior to 29/11/2007. Thus,the case of the petitioner is covered under the decision of the Supreme Court Mukarram Ali Khan Vs. State of U.P.&Ors.,AIR, 2007, Hon’ble Supreme Court,6282; in which it is held as follows- 3 5]Section-4 of the Repeal Act reads as follows : 4.Abatement of legal proceedings- All legal proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act ,before any Court, tribunal or other authority shall abate; Provided that this section shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the principal Act insofar as such proceedings are relatable to the land,possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. 6] In view of the affidavit filed by the appellant to which no objection has been filed,undisputed position is that the State has not taken the possession over the surplus land.Therefore,the proceedings have to be treated to have abated under Section 4 of the Repeal Act. 6] Further reliance is placed on Voltas and Others Vs.Additional Collector & Competent Authority ,2008(5) Bom.C.R.746 and the SLP preferred against this decision was dismissed by the Hon’ble Supreme Court. 7] The petition will therefore have to be allowed in terms of prayer clause (a)(b),& (c) and (d) which read as follows. [a] That this Hon’ble Court be pleased to issue a Writ of Mandamus or a Writ,Order or Direction, in the nature of 4 Mandamus ,quashing and setting aside, the impugned Notice dated 08/02/2005 ,issued by the Additional Collector and Competent Authority ,ULC, THANE (Resp.No.1 herein) ; and e further pleased to declare that the land bearing survey no.248 ,situated at Village,Kavesar,Tal.& Dist.Thane in physical possession of the Petitioner,would continue vest as such with the Petitioner as true and actual owners thereof ; [b] That in view of the Urban Land (Ceiling and Regulation ) Repeal Act,1999,it be declared that the Order dated 19/07/1982 under section 8(4) of the ULC Act, 1976,passed by the Addl.Collector and Competent Authority , ULC, THANE (Ex.”B” to the Petition) has become null and void and non-est. [c] That, in view of the Urban Land (Ceiling and Regulation) Repeal Act,1999, it be declared that the notification U/s 10(3) bearing No.ULC/TA/KAVESAR/ SR/76,dated 08/08/2002,passed by the Dy.Collector and Competent Authority,ULC,THANE (Ex.”F” to the Petition) has become null and void and non-est. Rule made absolute with no order as to costs. (J.N.Patel,J.) (Mrs.Mridula Bhatkar,J.) 5 SRS