1wp-1872-09 Lrs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.1872 OF 2009 The Municipal Corporation of the City of Pune through the Municipal Commissioner, having its office at Shivaji Nagar, Pune 411 005. ..Petitioner. vs. 1. The State of Maharashtra and(2) others. .. Respondents. Mr S.M. Gorwadkar, Advocate for the petitioner. Mr V.S.Gokhale, A.G.P. For Respondent No.1. Mr Y.S.Jahagirdar, Sr.Adv., i/b Mr S.S. Patwardhan, Advocate for Respondent Nos. 2 and 3. ALONG WITH CIVIL WRIT PETITION No. 4555 of 2008 2wp-1872-09 Ms Ranjana Pranlal Doshi & Anr .. Petitioners. vs. The State of Maharashtra & Anr .. Respondents. Mr Y.S.Jahagirdar, Sr.Adv., i/b Mr S.S. Patwardhan, Advocate for the petitioners. Mr V.S.Gokhale, A.G.P. For Respondent No.1. Mr S.M. Gorwadkar, Advocate for Respondent No.2. CORAM: D.K. DESHMUKH AND K.K.TATED,JJ DATED: 2nd DECEMBER,2009 P.C.:- 1. Subject matter of both these petitions is the same property and, therefore, they can be conveniently disposed of by a common order. The facts that are relevant for deciding these petitions are :- 2. Pranlal Zaverchand Doshi, since deceased, 3wp-1872-09 who is represented through his heirs and legal representatives and Chandravadan Pranlal Doshi were owners of certain lands situate at village Mouje Parvati, Taluka Haveli, District Pune. On February 17, 1976 the Urban Land (Ceiling and Regulation) Act, 1976 ( the U.L.C. Act,1976 for short), came into force in the State of Maharashtra. The owners of the lands filed a statement under sub-section (1) of Section 6 of the U.L.C.Act in the prescribed Form on August 14, 1976. The Competent Authority, Pune Urban Agglomeration prepared draft statement under sub-section (1) of Section 8 of the Act. The draft statement was sought to be served in accordance with the provisions of sub-section (3) of Section 8 of the Act. An order was passed by the Competent Authority on April 25, 1977 under sub-section (4) of Section 8 of the Act observing therein that a notice under Section 8 (3) of the Act was issued and sent to the declarant by Registered A.D.,but it was received back  undelivered . It was also observed that the notice was properly sent at the address 4wp-1872-09 given by the declarant and hence the owner was treated as  served . 3. Since the declarant had not raised any objection nor he remained present on the date fixed for enquiry, the notice was finalized without any change. A direction was issued to pass final order as required by Section 9 of the Act. Pursuant to the above direction, final order came to be passed on April 25,1977. After the final statement, a notification under sub-section (1) of Section 10 of the Act was issued on April 28, 1977 intimating the persons having interest in the land to prefer their claims to the Competent Authority either personally or through an agent within a period of 30 days from the date of publication of notification in the Official Gazette. The said notification was published in the Maharashtra Gazette on May 12, 1977. The case was fixed for hearing on June 23, 1977. On June 16, 1978, the Competent Authority issued notification under sub-section (3) of Section 10 of the Act declaring excess land to be acquired 5wp-1872-09 by the State. It was notified for the information of general public that the land specified in the Schedule appended thereto would be deemed to have been acquired by the Government of Maharashtra with effect from July 31, 1978 and would be deemed to have been vested in the Government of Maharashtra free from all encumbrances from that date. The said notification was published in the Official Gazette on August 24, 1978. 4. Since the land stood vested in the State of Maharashtra, free from all encumbrances, the Pune Municipal Corporation (respondent No.2 herein) made an application in August, 1978 for purchase of land declared to be excess land under the U.L.C. Act and stood vested in the State Government. The Competent Authority vide its letter dated January 8,1979 offered the land to the Corporation for occupancy price of Rs.1,45,000/- for Development Plan Reservation, Pune Municipal Corporation. In the said communication, it was stated that the terms and conditions subject to which the land was offered, 6wp-1872-09 were enclosed in the form of Agreement. If those terms and conditions were acceptable to the Corporation, the latter was required to execute the Agreement with the Collector of Pune and to pay occupancy price by challan. 5. On January 9, 1979, the Competent Authority also issued notice under sub-section (5) of section 10 of the Act directing the land-owners to hand over possession of land within 30 days. It was stated in the said notice that the notification under sub- section (3) of the Section 10 of the Act was published in the Maharashtra Government Gazette on August 24, 1978 and the land specified in the Schedule had absolutely vested in the Government of Maharashtra. It was further stated that since the owners were in possession of the land, they were required to surrender and deliver possession thereof within 30 days to the Tahsildar, Pune City who was duly authorized by the State Government to take it. It was also stated that in the event of their failure or refusal to surrender the possession by 7wp-1872-09 the owners, appropriate steps would be taken to take possession of the land by use of force. 6. It appears that original owners of the land preferred an appeal under Section 33 of the U.L.C. Act in the Court of Collector and Appellate Authority under the Act at Pune on February 20, 1979. The said appeal was against an order passed under sub-section (3) of Section 10 of the U.L.C. Act. It may be stated that so far as the order declaring the land as excess land under the Act, as also issuance of final statement are concerned, no challenge was made to them. In the Memorandum of Appeal, it was stated that the enquiry under sub- section (2) of section 10 was pending. It was also stated that the property was not being utilized by the Pune Municipal Corporation for public purpose because of shortage of funds. The owners intended to make use of the land for public purpose such as hostel, cinema house, petrol pump, Mangal Karyalaya, lodge, hospital, godown etc. They had submitted layout plans to the Government of Maharashtra for 8wp-1872-09 construction and the matter was under active consideration of the Government. It was further stated that even though the order under sub-section (5) of Section 10 of the Act was passed on January 9, 1979, it was received by the appellants somewhere on 21st January,1979. The appeal was, therefore, within time, but even if there was some delay, it might be condoned. A prayer was, therefore, made to set aside the order dated January 9, 1979 passed under sub-section (5) of Section 10 of the Act. 7. It has come on record that the Corporation had paid the occupancy price of Rs.1,45,000/- for the land admeasuring 37,517 sq.meters from Survey No.33A/1, 32/A and 34/A/2+1 (part). It is also on record that on February 22, 1979, possession of the land was handed over by the State Government through Talathi Parvati to the Respondent No.2 Corporation. The possession receipt has been duly signed in token of `possession given and `possession taken by the parties. 8. An order was passed on August 23, 1979 by 9wp-1872-09 the Appellate Authority on the appeal filed by the land-owners under Section 33 of the Act. It was stated that the appeal was against the notification under Section 10 (5) of the Act, but such appeal was not maintainable. The Appellate Authority, therefore, summarily dismissed the appeal by inter alia observing as under: On perusal of the notification u/s. 10 (5) of the Act produced by the appellants it is observed that final notification u/s. 10 (3) of the Urban Land (Ceiling and Regulation)Act, 1976 has been published on 24.8.1978 and 26.10.1978 respectively from when the surplus land is deemed to have been acquired and vested in State Government free from any encumbrances. Besides there is no remedy of appeal after final notification u/s. 10 (3) of the Act has been published. Considering all these facts the present appeal is not tenable . 9. It is pertinent to note that nothing was done by the owners of the land for more than a 10wp-1872-09 decade after the above order in appeal was passed in August, 1979. On May 21, 1990, one Shaikh Issaq Shaikh Gafoor, Power of Attorney of P.Z.Doshi, one of the owners of the land, preferred an appeal to the Government under section 34 of the Act. It was stated therein that the land was jointly owned by P.Z.Doshi and G.P.Doshi and it consisted of a built- up bungalow of about 500 sq.meters. The bungalow was existing on the land since long i.e.,when the land was purchased. It was further stated that since the land attracted the provisions of the Act, the owners had filed return (statement) under Section 6 (1) of the Act. The Competent Authority, Pune Urban Agglomeration, while deciding the case, should have accorded two units i.e. 1,000 sq.meters each to P.Z.Doshi and C.P. Doshi to make total of 2,000 sq.meters. The authority, however, had granted only one unit of 1,000 sq.meters. A copy of the order under sub-section (4) of Section 8 was also enclosed by the appellants for ready reference. A grievance was also made that the Competent Authority had not 11wp-1872-09 considered the built-up property of bungalow required to be excluded from the total holding together with the land appurtenant and additional land appurtenant. Thus, gross injustice had been done to the owners. A prayer was, therefore, made to the Government to redress the grievance and to award 2 units and to exclude built-up property bungalow. The Revisional Authority disposed of the Revision on August 7, 1991 observing that there was no provision under Section 34 of the Act to consider the application of the applicants and the application could not be considered. Even after the disposal of the above application in 1991, nothing was done by the land-owners for quite some time. After more than three years on September 21, 1994, through another Power of Attorney (Mr Ashok Milapchand Jain), C.P.Doshi and his wife Mrs Ranjana P. Doshi requested the Minister for Housing & Special Assistance Department to revise the orders passed earlier. In the said application, it was said that the Additional Collector and Competent 12wp-1872-09 Authority, Pune Urban Agglomeration was pleased to decide the case of applicants on February 20, 1979 declaring the applicants to be surplus holders of land. (It may be stated that the order declaring surplus land was passed by the Competent Authority in April, 1977). It was stated that the Competent Authority had decided the case `without considering all the necessary facts . Then, a grievance was made with regard to units as also exclusion of the land of built up area. It was stated that an appeal was filed but it was rejected on the ground that remedy of appeal was not available after the final notification under Section 10 (3) of the Act. It was also stated that the land was proposed to be allotted to Pune Municipal Corporation but applicants had filed Regular Civil Suit no.1913 of 1979 against the State Government and Pune Municipal Corporation and the learned Civil Judge, Senior Division, Pune had granted status-quo thereby restraining Pune Municipal Corporation from taking possession of land or developing it. It was asserted 13wp-1872-09 that the applicants had submitted a scheme under Section 20 of the Act to the Competent Authority which was pending. The applicants were ready to construct a maternity home and hospital and for the purpose plans were submitted. A prayer was, therefore, made to decide the matter on merits and to issue direction to Additional Collector and Competent Authority to scrutinize and sanction the scheme under Section 20 of the Act. The Revisional Authority observed that it was proved that the applicants had not been given sufficient opportunity for showing the ownership documents to the Competent Authority and pria facie, the order of the Competent Authority dated April 28, 1977 was  wrong . In exercise of power under Section 34 of the Act, therefore, the said order was set aside and the case was remitted for reconsideration to Additional Collector and Competent Authority, Pune. It was directed that the applicants should be given sufficient opportunity by Additional Collector and Competent Authority, Pune before deciding the 14wp-1872-09 matter. It may be stated that neither the owners joined the appellant, Pune Municipal Corporation as party respondent, neither notice was issued, nor opportunity of hearing was afforded to the Corporation by the Revisional Authority though it was stated in the Revision itself that the land was allotted to the Corporation and the Corporation was proceeding with construction thereon. In view of the fact that the revision was allowed and the order passed by the Competent Authority was set aside without making the corporation a party and without affording opportunity of being heard, the Corporation filed a writ petition in this Court. This Court passed the order holding that since no notice was served upon the owners, the order passed by the Competent Authority was bad in law and was rightly set aside in revision. Regarding right of the Corporation, this Court was of the view that hearing could be afforded only to the  affected party as it was  mere beneficiary of allotment of the State of Maharashtra which could only be done 15wp-1872-09 had there been a valid vesting in the State of Maharashtra. Since the order was passed by the Competent Authority without hearing the owners, it was violative of natural justice. In the circumstances, the Corporation had no right over the land and it was not necessary to hear the Corporation. This Court also held that since the proceedings were initiated without serving notice to the land-owners, there was no valid vesting of property in the State. Allowing the petition filed by the Corporation would, therefore, result in revival of an illegal order. No Court of law would make an order which would restore illegal or ultra vires order. Accordingly, this Court dismissed the petition and directed the Appellate Authority to decide the matter pending under Sections 8 and 9 of the U.L.C., Act within a period of three months from the date of judgment. 10. Against the order passed by the Division Bench of this Court, Appeal (Civil) No. 1084/2006 ( 16wp-1872-09 Pune Municipal Corporation vs. State of Maharashtra & Ors) was filed by the Corporation before the Supreme Court. That appeal was decided by the Supreme Court by its order dated 26.2.2007. The Supreme Court allowed the appeal, set asided the judgment and order of the Division Bench of this Court, as also the order passed by the State Government in revision. The operative part of the Supreme Court reads as under: For the forgoing reasons, in our opinion, the order passed by the Revisional Authority and confirmed by the High Court is liable to be set aside and is hereby set aside. The matter is now remitted to the Revisional Authority for taking fresh decision in accordance with law after hearing the parties, including the Corporation. It is open to all the parties to raise all proceedings taken in pursuance of the order passed in revision are of no consequence and no effect can be given to them. We may 17wp-1872-09 clarify that we have not entered into correctness or otherwise of the allegations and counter-allegations and we may not be understood to have expressed any opinion on the merits of the matter. As and when the Revisional Authority will take up the matter for consideration, it will decide the same without being influenced by the observations made by the High Court as also by us. The appeal is accordingly allowed with costs. 11. After remand revision filed by the land owners was decided by the State Government by its order dated 27th November, 2007, the State Government held that in the holding of the land owners, land admeasuring 22367.80 sq.meters was surplus. Notification issued under Section 10 (3) and 10 (5) in relation to the land which is held not to be surplus is cancelled and it was directed that subject to the result of the civil suit which is pending, notification under Section 10 (3) and 10 (5) shall be issued in relation to the land 18wp-1872-09 admeasuring 22367.18 sq.meters. 12. Feeling aggrieved by this order the land owners have filed Writ Petition No. 4555/2008 and Corporation has filed Writ Petition No. 1872/2009. 13. We have heard the learned counsel for both sides. The grievance of the land owners against the order passed by the State Government is that without giving any reasons land admeasuring 22367.18 sq. meters has been declared as surplus from their holding. It is also urged by them that the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force on 29.11.2007 in the State of Maharashtra and as the land holders are in possession of land which has been declared as surplus, all further proceedings in relation to the lands have abated. On behalf of Corporation on the other hand, it is submitted that the Supreme Court has directed the State Government to consider in revision all the contentions that may be raised before it, the contentions that were raised before 19wp-1872-09 the Supreme Court on behalf of the Corporation were that revision should not have been entertained by the State Government because of unreasonable and unexplained delay on the part of the land owners. It was also urged before the Supreme Court that the second revision is not maintainable because of the dismissal of the appeal filed earlier as also the dismissal of revision filed earlier. 14. The learned counsel submitted that the State Government has not considered all these aspects in its order. The learned counsel also submitted that it was also claimed before the State Government that because possession of the surplus land is already given to the Corporation the State Government should not interfere with the declaration made under section 8. The learned counsel submitted that though the matter was argued at length before the State Government, the State Government has not given any reason for the findings recorded by it. 15. There is some controversy between the 20wp-1872-09 parties, as to whether on behalf of the Corporation it was argued before the State Government that the revision should not be entertained because of gross unreasonable and unexplained delay. It was contended on behalf of the land owners that this aspect was not even urged by the Corporation before the Government. Whereas, on behalf of the Corporation it was contended that this was argued but the State Government has not considered it. In our opinion, however, in view of the order that we propose to make, it is not necessary to enter into that controversy. It is apparent from the order of the State Government impugned in this petition that it was contended before the State Government that because of the disposal of the appeal filed under Section 33 of the U.L.C. Act and because of the dismissal of the revision filed in the year 1991, the said revision filed by the land owners was not maintainable. The order of the State Government, however, shows that the State Government though has referred to this argument, has not decided this 21wp-1872-09 contention raised on behalf of the Corporation. 16. The learned counsel appearing for the land owners submitted that in view of the following observations from the judgment of the Supreme Court it was not necessary for the Government to decide those objections. The observation relied upon by the learned counsel read as under: It may be recalled that neither in the Memorandum of Appeal filed by the land owners in 1979, nor in the first revision nor in the second revision, which are part of the record, it was even alleged by the land- owners that they were not served with the notice under Section 8 of the Act and they had no opportunity to put forward their case and the order was, therefore, liable to be set aside. In fact, no appeal was filed against an order passed under Section 8 of the Act. Be that as it may, had such contention been taken by the land owners and had the appellant-corporation been joined as party respondent before the Revisional Authority in the second revision, it could have pointed out that the land-owners were 22wp-1872-09 aware of the proceedings and because of such knowledge, they had not raised such contention. Ultimately, in such matters, the Court would apply  prejudice test . If the circumstances had proved that the land-owners were in know of proceedings, it is possible that the Revisional Authority might have refrained from exercising discretionary jurisdiction. 17. On behalf of the Corporation, on the other hand, reliance was placed on the observations made by the Supreme Court in the operative part of its order which we have quoted above. In our opinion, in view of the clear observations made by the Supreme Court that Revisional Authority will take up the matter for consideration and it shall decide the same without being influenced by the observations made by the Supreme Court in that order, the State Government could not have avoided deciding the contention urged on behalf of the Corporation that in view of dismissal of first revision second revision was not maintainable. In any case, in our 23wp-1872-09 opinion, even if the State Government was of the opinion that because of the observations made by the Supreme Court, which we have quoted above revision was maintainable. In our opinion, this clearly shows non application of mind on the part of the State Government. We also find that the order of the State Government, as argued by the learned counsel appearing for both the sides, merely records conclusions of the State Government without giving any reasons for those conclusions, is not valid. The order of the State Government declares the land admeasuring 22367.18 sq.meters as surplus in the holding of the petitioners but does not give any reason why the State Government is of the opinion that the land admeasuring 22367.18 sq.meters is surplus. In our opinion, therefore the order of the State Government has to be set aside because it is an order made in violation of the principles of natural justice. Normally, after finding that the order passed by the State Government has been made in violation of the principles of natural justice, we would have 24wp-1872-09 remanded the proceedings back to the State Government for de novo consideration, however, only after two days of the order of the State Government on i.e.29.11.2007 by the Urban Land (Ceiling and Regulation)Repeal Act,1999 the U.L.C., Principal Act has been repealed. As a consequence, the State Government does not, now, possess any revisional jurisdiction. Therefore, there is no question of we remanding the proceedings back to the State Government. 18. So far as the contention urged on behalf of the land owners that in view of the fact that they are in actual possession of the land which was declared as surplus by the original declaration made under Section 8 (4), as also by the order which is impugned in these petitions, in view of the U.L.C.Repeal Act, all further proceedings under the Urban Land Ceiling Principal Act in relation to the land in question abate, is concerned, in our opinion,that question cannot be decided in these petitions because there is a dispute between the 25wp-1872-09 parties on the question as to who is in actual possession of the land. There is also a dispute between the parties, as to whether possession of the land declared as surplus from