-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 621 OF 2008 Bhaskar W. Patil and others ....Petitioners versus The State of Maharashtra and others ... Respondents Ms. Rajani Iyer, Senior Advocate, with Mr. Gaurav Joshi, instructed by M/s. Thakore Jariwala & Associates, for the petitioners. Mr. D.A. Nalawade, Government Pleader, for the respondents. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: JULY 30, 2008. P.C. Rule. Learned Government Pleader waives service of Rule on behalf of the respondents. With the consent of parties, the matter is taken up for hearing today. 2. By filing this petition, the petitioners have prayed that the respondents may be restrained from acting upon the impugned order dated 8th January, 2008, notification dated 26th July, 2006 and notice dated 20th September, 2006, at Exhibits-J, F and G to the petition, and the possession of the land in question should not be taken from the petitioners bearing CTS -2- Nos. 1551, 1552 and 1594 of village Eksar, Borivli, Mumbai. The petitioners have also sought for a direction directing the respondents to correct/rectify the revenue/land records and to show the petitioners as owners of the said land. 3. The petitioners are the owners of the disputed land. The land in question was declared surplus by the competent authority under Section 8 (4) of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter “the Act”) on 27th August, 1981. After a considerable period, on 26th July, 2006, respondent No.3 issued a notification under Section 10 (3) of the Act. On the basis of the said notification, respondent No.5 changed the revenue entries on 14th August, 2006. Thereafter on 20th September, 2006, respondent No.3 issued a notification under Section 10 (5) of the Act. However, it is not in dispute that the physical possession of the land in question all throughout remained with the petitioners and the learned Government Pleader has also fairly conceded this aspect that the physical possession has never been taken till today and the possession of the land still remains with the petitioners. 4. It is submitted on behalf of the petitioners that in view of the repeal of the Act and in view of the fact that the Maharashtra Legislature has passed a legislation to that effect on 29th November, 2007, and especially -3- considering the fact that the physical possession is allowed to remain with the petitioners, all subsequent proceedings under the Act should be treated to have been abated. It is submitted that all consequent orders should be set aside and revenue entry also should be cancelled in view of the fact that the Act has since been repealed and the proceedings have been abated. 5. Ms. Iyer, the learned Counsel for the petitioners, has relied upon the decision of the Division Bench of this Court dated 25th July, 2008, in the case of Voltas Limited and another vs. Additional Collector and others. The Division Bench vide order dated 25th July, 2008 has considered the provisions of the Repeal Act as also the saving clause and ultimately has held that in view of the provisions of the repeal Act, the State Government cannot claim right over the land in question under the provisions of sub- section (3) of Section 10 of the Act. The Division Bench in paragraphs 14 and 15 has observed thus: “ 14. In our opinion, one more aspect that is relevant and needs to be considered is the provision of clause (3) of the Urban Land (Ceiling and Regulation) Repeal Bill, 1998, which reads as under:- “3. Savings:- The repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of Section 10 with respect to which the competent authority has:- (i) by notice in writing under sub-section (5) of that -4- Section ordered any person to surrender or deliver possession of such land to the State Government or to any person duly authorised by the State Government in this behalf, or (ii) taken possession of such vacant land under sub- section (6) of that section, and the use of such land for the purposes of the principal Act has commenced. Provided that where such use for the purposes of the principal Act has not commenced, then the State Government shall restore such land to the person from whom it was taken over and the amount paid shall be liable to be refunded. Provided further that where such land was subject to any encumbrance before vesting absolutely in the State Government under sub-section (3) of that section, such land shall be restored with all the encumbrances from which it was freed under that sub- section as if no declaration had been made under that sub-section: Provided also that no such land shall be restored unless the amount paid has been refunded to the State Government; (b) any exemption granted by the State Government under sub-section (1) of Section 20.” Perusal of the above clause (3) of the Bill shows that it was intended to protect or save vesting of even those lands with the State Government in relation to which an order under sub- section (5) of Section 10 of the Principal Act has been made for delivery of possession as also those lands of which possession has been taken. But while enacting Repeal Act, the land in relation to which notice under sub-section (5) of Section 10 was given has been deleted. Comparison of clause 3 of the Bill quoted above with the provisions sub-sections (3) and (4) of the Repeal Act which are also quoted above shows that it was the clear intention of the Legislature not to save vesting of the land -5- in the State Government of which possession was not taken. One more aspect that is to be kept in mind, in our opinion, while interpreting the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 is that what is stated in the statement of objects and reasons of the Repeal Act. Paragraph 1 of the Statement of Objects and Reasons of the Repeal Act, in our opinion, is relevant which reads as under:- “The Urban Land (Ceiling and Regulation) Act, 1976 was passed when proclamation of emergency was in operation with a laudable social objective in mind. The said Act was passed pursuant to resolutions passed by the State Legislatures under clause (1) of Article 252. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is widespread clamour for removing this most potent clog on housing.” Perusal of the above referred paragraph from the Statement of Objects and Reasons of the Repeal Act shows that the principal Act was required to be repealed because of the unanimous public opinion that not only the Principal Act has failed to activate what was expected of it but it has pushed up the land prices to unconscionable levels. In this background, therefore, if despite clear words used in the repeal Act, it is held that the Government continues to hold title of those lands of which possession is not taken though after the Repeal Act came into force it ceases to have power to take possession of those lands, ceases to have power to decide the amount to be paid under the Principal Act, in our opinion, will defeat the very intention of the legislature in enacting the Repeal Act. In our opinion, therefore, it is clear from the provisions of the Repeal Act that neither the proceedings after the remand order made by the State Government can continue after 29.11.2007 nor can the State Government claim that the land of the petitioners which was subject matter of the notification under sub-section (3) of Section 10 of the Principal Act, possession of which has not been taken by the State government continues to vest in the State Government. -6- 15. In the result, for the reasons recorded, the petition succeeds and is allowed. It is held that as a consequence of the Repeal Act, further proceedings pursuant to the order made by the State government dated 30.10.2006 abate and can no longer be proceeded further. That all further proceedings under the provisions of the Principal Act in relation to the land of the petitioner No.1 mentioned in the declaration made under sub-section (3) of Section 10 of the Principal Act lapses and those lands no longer vest in the State Government. Rule made absolute accordingly. No order as to costs.” 6. The learned Government Pleader appearing for the State has very fairly stated that the facts of the present case is also covered by the aforesaid Division Bench judgment. He, however, submitted that since the respondents are contemplating challenging the said order before the Supreme Court, the order which may be passed in view of the Division Bench judgment may be stayed for a period of ten weeks from today. Since it is not in dispute that the point in issue is covered by the Division Bench which is binding to this Court, this petition is allowed. It is held that all further proceedings undertaken by the Department in relation to the land of the petitioners lapse and it is held that the land in question no longer vests in the State Government and the petitioners are entitled to use the said land without any hindrance. Whatever subsequent decisions might have been taken regarding revenue entries, etc. all those proceedings are also quashed and set aside as the subsequent proceedings stand abated. At the cost of repetition it is stated that it is not in dispute that the physical possession all throughout remained with the petitioners. This Court is not required to -7- express any opinion as to why the authority who was in charge to take follow up action on the basis of the land being declared as surplus was silent for all these years. It is for the State to consider this aspect by taking necessary steps, if any, against the erring officers of the State. In view of the Division Bench decision of this Court, this petition is allowed. However, both the sides to maintain status quo for a period of ten weeks from today. Rule is made absolute to the aforesaid extent with no order as to costs. P. B. MAJMUDAR, J. A.A. SAYED, J.