: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6086 OF 2009 Shri Anandrao Dinkarrao Ghatage. ... Petitioner Vs 1. State of Maharashtra & anr. ... Respondents Mr. A.B. Borkar for the petitioner. Mr. C.R. Sonawane, AGP, for the respondents No.1 and 2. CORAM: S.B. MHASE & R.M. SAVANT, JJ. DATED : 23RD SEPTEMBER, 2009. P.C.: 1. Rule. With the consent of the parties, made returnable forthwith. Heard the learned counsel for the parties. 2. The petitioner has approached this court under section 226 of the Constitution of India for setting aside the action of the respondents of taking possession of the petitioner’s land bearing survey No.33/E, Mauje Ujlaiwadi, Taluka Karveer, District Kolhapur admeasuring 1134.63 sq. : 2 : metres. It appears that the said land was declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the said Act”). There was a Notice issued under section 10(5) of the said Act. According to the petitioner, possession of the said land was not surrendered by the petitioner as per section 10(5) Notice. The petitioner states that on the date of the repeal, the said land was in the possession of the petitioner and, therefore, now since the proceedings have abated, the respondents are not entitled to take possession of the said land. However, bypassing the provisions of the repeal Act, possession of the land has been taken by the respondents on 15th March, 2008, and therefore, the present Petition. 3. The respondent-State has filed its reply and has stated that after the land was declared as surplus, steps were taken to take possession of the said land under section 10(3) of the said Act. Notice under section 10(5) of the said Act was issued on 27th November, 2007. However, the actual possession receipt is dated 15th March, 2008. In paragraph 3 of the Affidavit, the respondents have stated that the possession of the land was taken under section 10(5) of the said Act on 27th November, 2007 i.e. before the repeal of the Act and only the physical possession of the land is taken on 15th March, 2008 i.e. after the repeal of the said Act. In fact, this statement : 3 : itself is misfounded. Notice under section 10(5) of the said Act contemplates that the holder of the land shall surrender the land to the respondents and if he does not surrender the land, then the respondents are expected to issue Notice under section 10(6) and then take physical possession of the land either, if given voluntarily or by adopting forceful measures. Section 10(5) of the said Act does not contemplate any symbolic possession and thereafter taking of actual physical possession. There is no record to show that the possession of the land was surrendered by the petitioner in view of the Notice dated 27th November, 2007, under section 10(5) of the said Act. Therefore, the contention raised by the respondent- State that the possession of the land has been taken under section 10(5) on 27th November, 2007 i.e. before the repeal of the said Act, is misfounded. Unless and until the respondents point out that the petitioner has surrendered the possession in view of Notice under section 10(5), it cannot be contended by the respondents that the possession was taken by the respondents in view of section 10(5) Notice. The said submission, it appears, has been raised only to oppose the Petition. After going through the record and the Affidavit, the facts conclusively prove that the possession of the land has been taken on 15th March, 2008 i.e. after repeal of the said Act, when, in law, the proceedings had already abated and respondents were : 4 : not empowered to take possession of the said land. 4. Under the aforesaid circumstances, the Petition is required to be allowed and is, accordingly, allowed. It is hereby declared that since possession of the land was not taken prior to the repeal of the ULC Act by the respondents and the respondents have not received possession by way of surrender in view of the Notice under section 10(5), the proceedings of the petitioner’s land have abated. The respondents are hereby directed to place the petitioner in possession of the said property within a period of fifteen days from the receipt of the order. We express our displeasure and deprecate the high-handed act of the respondents in the teeth of several orders passed by this court and also the reported judgment of this court (supra). We expect the respondents to be more careful in future. 5. The Petition is allowed by making the Rule absolute in the aforesaid terms. Sd/- Sd/- (R.M. SAVANT, J.) (S.B. MHASE, J.)