1 wp-4141-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4141 OF 2010 1. Shri Waman Bandu Bhoir and anr. .. Petitioners Vs. 1. The State of Maharashtra and ors. .. Respondents Mr. K. S. Dewal for petitioner. Mrs.M.P. Thakur, AGP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. OCTOBER 11, 2010. P.C. 1. Heard Mr. Dewal the learned counsel for the petitioners. Mrs. Thakur, the learned AGP appears for the State and has relied upon the affidavit-in-reply filed by the Additional Collector and Competent 2 wp-4141-10 Authority, Thane Urban Agglomeration so as to oppose the petition. 2. The petitioners pray for quashing the six orders issued on 23/2/2010 by the Additional Collector and Competent Authority of Thane Urban Agglomeration. They also pray for a declaration that the said authority has no powers to issue such orders in respect of the scheme sanctioned under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 (for short the Act), after the said Act has been repealed with effect from 29/11/2007. 3. The petitioners owned land bearing Survey Nos. 44/9 (Part), 18/3 and 41/1 of Balkum, Taluka and District – Thane and located within the municipal limits of Thane Municipal Corporation. The petitioners had submitted return under Section 6(1) of the Act in respect of their land holdings and on enquiry, an area admeasuring 19649.80 sq.mtrs. was found to be surplus from their holdings and, therefore, an order under Section 8(4) of the Act came to be passed on 16/6/1982. Eight years later i.e. on 22/3/1990, the petitioners applied for exemption under Section 20 of the Act and by an order dated 14/6/1990, the respondent no.2 had granted such an exemption for construction of residential tenements for the weaker 3 wp-4141-10 sections of the society in respect of the land in Survey Nos.44/9, 19/3 and 41/1 admeasuring 1794 + 7689 = 9483 sq.mtrs. out of total surplus land of 19,649.80 sq.mtrs. at Balkum. As per Clause No.5 of the said order, the scheme holder was required to start the work of construction within one year for Survey No.44/9 and within three years for Survey Nos.18/3 and 41/1 from the date of the order and the scheme was required to be completed within three years and six years, failing which the exemption shall stand withdrawn. As per the said scheme, the land holders were required to hand over 9 tenements of 358.80 sq.mtrs. built up area to the nominees of the State Government. For some or the other reasons the petitioners did not implement the scheme within the stipulated period and on 29/8/2003 they submitted an application for extension, which was granted by an order dated 2/1/2004 for a period of one year. The petitioners had submitted an undertaking on 29/3/2004 but did not complete the scheme within the extended period of one year. For the first time, on 2/4/2005, they applied for permission to Thane Municipal Corporation in respect of the construction on the plot of land from Survey No.44/9 (Part). On 9/7/2007, the petitioners again approached respondent no.2 to give No Object Certificate in respect of the building constructed on the exempted land i.e. Survey Nos.44/9 (Part), 45/3 (Part) and 45/6 of 4 wp-4141-10 Balkum village. A Surveyor was deputed by respondent no.2 for taking measurements of 9 tenements from the up coming building on 27/7/2009 and thereafter on 31/10/2009 the petitioners submitted an undertaking that they would hand over 9 tenements of 384.21 sq.mtrs. built up are within one year to the nominees of the State Government. Taking into consideration this undertaking, on 15/11/2009, respondent no.2 granted No Objection Certificate for the building constructed on Survey No.44/9 (Part) admeasuring 1794.00 sq.mtrs. and thereafter passed an order on 5/12/2009 allotting six flats to respondent nos.4 to 9 who are the legal heirs of the constables employed by the Fire Brigade of Thane Municipal Corporation and who lost their lives in the rescue operation. The impugned orders dated 23/2/2010 came to be passed by respondent no.2 allotting these flats to respondent nos.4 to 9 and thus calling upon the petitioners to hand over these tenements to the said allottees. 4. The affidavit-in-reply filed by respondent no.2 states that the petitioners did not implement these orders dated 23/2/2010 for allotment of six flats to respondent nos.4 to 9 and the said respondents approached him and filed complaints by letters dated 25/5/2010 and 21/6/2010. Respondent No.2 called upon the petitioners to execute the agreement and 5 wp-4141-10 hand over the peaceful possession of the subject tenements. Respondent No.2 approached respondent no.3 on 6/7/2010 and sought permission for taking ex parte possession of the said tenements. It is under these circumstances that the petition has been filed on or about 29/4/2010. 5. It is submitted that the extension of one year granted by the order dated 2/1/2004 expired on 1/1/2005 and thereafter respondent no.2 did not take any steps to cancel the scheme and seek possession of the surplus land. It is further submitted that having regard to the conditions of the scheme and more particularly Clause Nos.5 and 18, the scheme came to an end automatically or the exemption granted ceased to exist and, therefore, the petitioners were entitled to deny the execution of these orders. It is further submitted that after the Act was repealed with effect from 29/11/2007, respondent no.2 ceased to have any legal authority to issue the impugned orders for allotment of six tenements and more so when on 29/11/2007 the building construction was not completed and the scheme was not executed. 6. Clause Nos.5 and 18 of the Scheme read as under:- 6 wp-4141-10 “5. The said person shall commence construction of the tenements within a period of one year for S.No.44/9 and three years for S.No.18/3 & 41/1 from the date of this exemption order and shall complete the construction work within three years and six years failing which the exemption shall stand withdrawn. If only a part of the land is utilised by the said person and a part remains vacant at the end of above date or the buildings area at incomplete stage at the end of above date 14/6/1996, the exemption for the part which remains vacant or where the buildings are incomplete, for the land under such incomplete buildings and the land appurtenant thereto shall be deemed to have been withdrawn and vacant land and such land with structures and land appurtenant shall be acquired as per Chapter III of the Urban Land (Ceiling and Regulation) Act, 1976. 18. 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.” 7 wp-4141-10 7. There is no dispute that the petitioners had agreed to hand over 9 tenements of 384.21 sq.mtrs. from the subject building to the nominees of the State Government and this was a condition of the scheme. It is also not in dispute that as late as on 31/10/2007 i.e. before the Act was repealed, the petitioners submitted an undertaking to the same effect. 8. It was submitted by the learned counsel for the petitioners that in view of the Repealing Act the scheme sanctioned under Section 20(1) of the Act did not remain protected and it stood automatically withdrawn/ canceled. The Urban Land (Ceiling and Regulation) Repeal Bill 1998 had a savings clause and it states that the repeal of the principal Act shall not affect any exemption granted by the State Government under sub- section(1) of Section 20 of the Act. The statement of objects and reasons for the said Bill, in Clause 4, stated thus, “4. The proposed repeal, along with some other incentives and simplication of administrative procedures is expected to 8 wp-4141-10 revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of under served want and are entitled to public assistance. The repeal will not, however, affect land on which building activity has already commenced. For that limited purpose, exemption granted under section 20 of the Act will continue to be operative. Amounts paid out by the State Government will become refundable.” Section 3(1)(b) of the Repeal Act reads thus, “3.(1) The repeal of the principal Act shall not affect :- (a) ...... (b) the validity of any order granting exemption under subsection (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary.” 9. From the record, it is clear that as on 29/11/2007 the scheme was under implementation and though there was no further extension 9 wp-4141-10 granted beyond 2/1/2005, however, that deficiency by itself would not in any way benefit the petitioners so as to take advantage of their own faults. Clause 5 and 18 of the scheme, as reproduced hereinabove, cannot come to the rescue of the petitioners in support of their challenge to the impugned allotment orders. A Division Bench of this court in Writ Petition No. 2420 of 2009, decided on 27/8/2009, has already held that the scheme under Section 20(1) of the Act and sanctioned by the Competent Authority would remain intact after the Act was repealed on 29/11/2007. Mr.Dewal the learned counsel for the petitioners relied upon yet another judgment of this court (DB) in the case of Mohan Gopalrao Mate vs. Principal Secretary and ors. [2009(1) Bom. C.R. 275]. Though Mrs. Thakur, the learned AGP, stated across the bar that the said judgment has been stayed by the Apex Court, the following observations made by the Division Bench in that case in para 64 would go against the petitioners, which read as under:- “64. In the case in hand, we are concerned with sub-clause (b) of Section 3 of Repeal Act which contemplates that repeal of the principal Act shall not affect validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, not withstanding any judgment of any 10 wp-4141-10 Court to the contrary. It is, therefore, evident that validity of order granting exemption under sub-section (1) of Section 20 of the U.L.C. Act though passed prior to Repeal Act came into force, would continue in view of the said saving clause. Similarly, any action taken by the State Government under sub-section (2) of section 20 prior to the Repeal Act came into force is also continued to be valid even after the Repeal Act came into force. Perusal of provisions of section 3(1)(b) makes it evident that repeal of principal Act shall not affect validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder. Hence, to grant exemption in respect of land which was in excess of the 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-clause (2) of section 20 prior to coming into force of the Repeal Act, is also saved. However, the power of the State Goverment to alter, change or modify the terms and conditions of any of the Schemes formulated prior to coming into force of the Repeal Act and on the basis 11 wp-4141-10 thereof, sanction was granted by the Planning Authority is not saved by the saving clause.” 10. Mr. Dewal the learned counsel for the petitioners relied upon the last sentence in the observations reproduced hereinabove and submitted that the power of the State Government to alter, change or modify the terms and conditions of any of the schemes formulated prior to coming into force of the Repeal Act have not been saved and if that be so, the failure on the part of the State Government to grant extension beyond 2/1/2005 resulted in the scheme coming to an end or cancel and, therefore, the impugned orders would amount to altering or changing or modifying the terms and conditions of the scheme which, in fact, is not permissible and, therefore, the orders are illegal. We are not impressed by these arguments. It is not the case of the petitioners that an application for extension beyond 2/1/2005 was submitted by them and it was rejected by respondent no.2 at any time before 29/11/2007. In fact, the relief prayed for by the petitioners, in our opinion, and to say the least is preposterous and the petitioners cannot be allowed to take the benefits of their own failures. Respondent No.2 is fully justified in issuing the allotment orders and taking further steps for execution of the said orders. 12 wp-4141-10 11. In the premises, this petition fails and the same is hereby rejected. Interim order stands vacated. 12. Oral application made for continuation of the interim order stands rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)