1 wp397.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 397 OF 2010 WITH NOTICE OF MOTION NO. 163 OF 2011 IN WRIT PETITION NO. 397 OF 2010 Ahinsa Buildtech Private Limited & Anr. ...Petitioners. Vs. The State of Maharashtra & Ors. ...Respondents. Dr. Milind Sathye, Sr. Advocate i/by Mr. Veenu C. Khatri for the Petitioners. Mr. Milind More, AGP for Respondent Nos. 1 and 2. Mr. L.T. Satelkar for Respondent Nos. 3 and 6. Mr. Samir Patil i/by Ms. Vandana D. Jaisingh for Respondent No.4. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 5 OCTOBER, 2011. P.C. :- Heard finally by consent of the parties. 2 Subject matter of this Petition is land admeasuring 1331.70 sq. meters, CTS No. 733 at Mohili, Kurla. That land was owned by 2 wp397.10.sxw ssm Respondent No.3 Orkay Industries Limited. It appears that Respondent No.3 filed a return under the Urban Land (Ceiling and Regulation) Act, 1976. On the basis of that return by an order made under Section 8 (4) dated 8 January 1992, land admeasuring 1331.70 Sq. Meters owned by that company was declared as surplus land. It appears that notification under Section 10(i) was published in the Official Gazette on 20 April 2000. Notification under Section 10(3) was published on 29 June 2005. It further appears that by order dated 21 April 1998 this Court in its jurisdiction under the Companies Act, appointed Official Liquidator as provisional Liquidator of Respondent No.3 company. The Official Liquidator took possession of that land on 25 June 1998. Thus, when the Notification under Section 10(3) was published in the Official Gazette on 29 June 2005, the land was in possession of the Official Liquidator. It appears that the Competent Authority under the Urban Ceiling Act issued a notice dated 23 November 2006 to Respondent No.3 Company asking it to deliver the possession of the surplus land to the Competent Authority. According to the affidavit filed on behalf of Respondent No.1 the notice was not served on the third Respondent because address of that company was not available. According to the Respondents, therefore, possession of the land was taken ex-parte on 23 November 2006. It 3 wp397.10.sxw ssm appears that thereafter the property of the third Respondent company was auctioned by the Debts Recovery Tribunal and at that auction the Petitioners turned out to be the successful bidder. The Official Liquidator handed over possession of the land to the Receiver appointed by the Debts Recovery Tribunal on 8 July 2008. Thereafter, the Receiver of the Debts Recovery Tribunal handed over possession to the Petitioners on the same day. 3 The claim of the Petitioners thus is that they are in possession of the land and that all proceedings under the Urban Ceiling Act have lapsed. The State Government and Respondent No.2 Additional Collector and Competent Authority under the Urban Ceiling Act however claim that because on publication of the Notification under Sub-Section (3) of Section 10 on 29 June 2005, the land has vested in the State Government and as possession of the land is taken by the State Government on 23 November 2006, the land vests in the State Government. The Petitioners have therefore, filed this Petition for a direction to Respondent Nos. 1 and 2 not to exercise any rights in relation to the land under the Urban Ceiling Act. The learned counsel appearing for the Petitioners relied on a judgment of a Division Bench of this Court in Voltas Ltd. Vs. Additional Collector & Competent 4 wp397.10.sxw ssm Authority, 2008(5) Bom. C.R. 746 to contend that though the land may have vested in the State Government because of the Notification issued under Section 10(3), as possession of the land was not taken in accordance with law by the Competent Authority before 29 November 2007 when the Urban Ceiling Act was repealed, all proceedings in relation to the land under the Urban Ceiling Act have lapsed. The learned counsel appearing for the Petitioners relied on the judgment of the Supreme Court in the case of Balwant Narayan Bhagde Vs. M.D. Bhagwat & Ors. (1976) 1 SCC 700 to contend that in order to constitute possession in relation to acquisition of land physical possession of the land should be taken. The learned counsel submits that physical possession of the land was with the Liquidator in November 2006. Admittedly no notice has been given by the Competent Authority to the Liquidator to hand over possession of the land. Therefore, there is no question of the possession of the land being with the State Government. The learned counsel also submitted that even on the Company no notice was served asking it to deliver possession of the land. The learned counsel, relying on the Judgment of the Supreme Court in the case of Meghal Homes (P) Ltd. Vs. Shree Niwas Girni K.K. Samiti (2007) 7 SCC 753, also submits that when property is in possession of the Official Liquidator the property is in 5 wp397.10.sxw ssm custody of the Court and nobody can interfere with the possession of the Liquidator without the orders of the Court. The learned AGP appearing for the Respondents does not dispute in view of the judgment of this Court in Voltas (Supra) that unless and until Respondent Nos.1 and 2 establish that the possession of the land was taken by the Government on 23 November 2006 despite issuance of notification under Sub-Section (3) of Section 10 of the Urban Ceiling Act on 29 June of 2005, the proceedings under the Urban Ceiling Act in relation to the land would lapse on 29 November 2007. We asked the learned AGP therefore to verify the record to find out whether from the record he can find that the notice for delivery of possession was served by the Competent Authority on the third Respondent company or that a notice for delivery of possession was served on the Official Liquidator. The learned AGP after verifying the record of the Respondents, states that he does not find from the record that any notice was issued by the Competent Authority for delivery of the possession to the Official Liquidator. He also does not find that any notice for delivery of possession though issued to the third Respondent was actually served on the Third Respondent. 4 Sub-Section (5) of Section 10 reads as under; 6 wp397.10.sxw ssm “(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.” 5 Perusal of the above quoted provisions show that method of taking possession of surplus land is that the State Government is required to serve notice in writing on the person who may be in possession of the land to deliver possession of the land to the State Government. From the record, the position that emerges is that on 20 November 2006, when notice for delivery of possession was issued, the land was in possession of the Official Liquidator and therefore for taking possession in accordance with the provisions of Sub-Section (5) of Section 10, notice had to be issued to the Official Liquidator to deliver possession because it was only Official Liquidator who was in possession of the land and therefore the only person in a position to give its possession. As the record stands there is no notice issued by the State Government to the Official Liquidator to deliver possession and therefore, it cannot be said that the State Government has taken possession of the surplus land in accordance with the provisions of 7 wp397.10.sxw ssm Sub-section (5) of Section 10. In our opinion, therefore, the possession always continued with the Official Liquidator till it was handed over by the Official Liquidator in the year 2008 to the Receiver of the Debts Recovery Tribunal. Thus, as 29 November 2007 which is the crucial date when the Urban Ceiling Act was repealed, the possession of the land was not with the State Government. All proceedings under the Urban Ceiling Act in relation to the land therefore will lapse. In this view of the matter, therefore, in our opinion, the Petitioners are entitled to a direction directing the Respondent Nos. 1 and 2 not to assert any right in relation to the suit land under the Urban Ceiling Act as all proceedings under the Urban Ceiling Act in relation to the land have lapsed, as a consequence of the repeal of the Urban Ceiling Act. 6 Rule is made absolute, accordingly. There shall be no order as to costs. 7 The Notice of Motion No. 163 of 2011 is also disposed of. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)