1.wp.362-08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.362 OF 2008 Shri Kashinath Bhaskar Patil and 5 others. ..Petitioners. Versus The Additional Collector & Competent Authority (ULC), Thane and 7 others. ..Respondents. .... Mr.K.S. Dewal, Advocate for the petitioners. Mr.S.R. Nargolkar, Advocate for respondent Nos.1 to 3. .... CORAM : D.K. DESHMUKH, AND K.K. TATED, JJ. DATED : 25TH NOVEMBER, 2009 P.C.:- 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. At the request of the learned Advocate for the petitioners, the names of respondent Nos.4 to 8 are permitted to be deleted. 3. The facts which are relevant for deciding this Petition are that the petitioner No.1 and other member of his family 1.wp.362-08 2 had filed a return under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter, for brevity, referred to as "the ULC Act, 1976"). After the ULC Act, 1976 came into force, an order under Section 8(4) of the Act came to be passed on 24.10.2003 declaring 538 square meters land as surplus from their holdings. An appeal was filed against that order before the Divisional Commissioner. That Appeal was decided by the Divisional Commissioner by order dated 28.6.2007 whereby the proceedings were remanded back to the Competent Authority for de novo consideration. Accordingly, the proceedings were taken up by the Competent Authority and a fresh order was made under Section 8(4) of the Urban Land (Ceiling & Regulation) Act, 1976 dated 13.8.2007 holding that there is no surplus land with petitioner No.1 and the members of his family. It appears that sue moto revision proceedings were taken up by the State Government against the order passed by the Appellate Authority remanding the proceedings back. By order dated 7th November, 2007, the order dated 28.6.2007 passed by the Divisional Commissioner in Appeal and the 1.wp.362-08 3 order passed thereafter by the Competent Authority dated 13.8.2007 were set aside and the notice issued under Section 10(3) was confirmed. The notice under Section 10(3) was issued during pendency of the appeal before the Divisional Commissioner on 28.11.2005. 4. Really speaking, the consequence of the order passed by the Appellate Authority is that as the order under Section 8(4) was set aside, the notice issued under Section 10(3) lost its significance. Be that as it may, according to the petitioners, however, even assuming that the State Government is right in confirming the notice under Section 10(3) as the ULC Act, 1976 was repealed by the Urban Land (Ceiling & Regulation) Repeal Act, 1999 w.e.f. 29.11.2007 and as the possession of the land was not taken from the petitioners before 29.11.2007, in view of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, all further proceedings under the ULC Act, 1976 will lapse in relation to the land of the petitioners. 5. The learned Counsel for the petitioners relied on a judgment of the Division Bench of this Court in the case of 1.wp.362-08 4 Voltas Ltd., and another Vs. Additional Collector and Competent Authority and others reported in 2008(5) Bom.C.R.746 . 6. So far as the aspect of possession is concerned, the petitioners invited our attention to para-16 of the affidavit- in-reply filed on behalf of the respondents/State. The learned Government Pleader appearing for the respondents/State submitted that there is no clear statement made in the Petition that notification under Section 10(5) was not issued after the State Government made the order. He also submitted, on behalf of the respondents, that they also not admitted in their reply that the possession of the land has not been taken from the petitioners. In our opinion, however, considering the above said facts and the sequence of events, the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 and the judgment of this Court in the case of Voltas Ltd. (supra), the only thing relevant to be seen is as to whether the possession of the land declared as surplus was taken from the petitioners. In our opinion, therefore, for deciding 1.wp.362-08 5 that controversy, what is stated in affidavit-in-reply, more particularly in para-16, is relevant. Para-16 of the affidavit- in-reply of the respondent, reads as under : "16.With reference to para 4(N) of the Writ Petition, I deny the contention and submission made by the Petitioner. I say that since notification under section 10(3) has been issued and since the same has been published. The concerned surplus land is deemed to have vested in the Govt. and therefore possession of the said land cannot be retained by the Petitioner." 7. Perusal of the above referred paragraph, in particular the statement made in the last sentence in the above said paragraph, shows that as the land vested in the State Government as consequence of notification under Section 10(3) of the Act, the petitioner is not entitled to retain the possession of the land. That necessarily implies that the possession of the land is with the petitioners. This affidavit is filed on 29th April, 2008. This leaves no manner of doubt in our mind that on or before 29.11.2007 possession of the land declared as a surplus was not taken and the petitioners continued to be in possession. In our opinion, therefore, the Petition will have to be allowed. The petition is accordingly allowed and it is declared that all further 1.wp.362-08 6 proceedings in relation to the land of the petitioners which is subject matter of this Petition under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 have lapsed. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH,J) (K.K. TATED,J)