1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8227/2008 Malan Shivaji Deokar Petitioner Vs. Additional Collector & Competent Authority & Ors. Respondents Mr.Tejpal Ingale for the petitioner Mr.A.H.Palekar ,AGP for Res.1 & 2 Coram : J.N.Patel & Mrs.Mridula Bhatkar,JJ. Date : 18th July,2009 P.C.(Mrs.Mridula Bhatkar,J.) . Rule. 2] Rule returnable forthwith and heard finally by consent . 3] This petition is filed for quashing and setting aside the notification dated 4/4//2005 issued under section 10(3) of the Urban Land (Ceiling & Regulation)Act,1976and also for declaration that the land held by the petitioner has not vested in the State Government and continues to remain with the petitioner in view of the provisions of the the Urban Land (Ceiling & Regulation) Repeal Act,1999. The petitioner holds land survey no.98/8-B,98/11 out of survey no.27/2 admeasuring 604.6 sq.mtrs.situated at village Kondivita,Tal.Andheri,Dist.Mumbai. The land admeasuring 104.6 is 2 declared as surplus land by the said notification. Respondent no.1 issued notice u/s 10(1) of The Urban Land (Ceiling & Regulation)Act,1976 on 27/9/2005 .Even though the notice u/s 10(5) of the Urban Land (Ceiling & Regulation)Act,1976 was issued to the petitioner on 6/10/2005 the possession of the land is not taken by the respondents. Hence this petition. 4] The respondents have filed affidavit in reply opposing the petition. It is agreed by them that the possession of the land was not taken by the respondents and it is with the petitioner. 5] The Urban Land (Ceiling & Regulation)Act,1976 was repealed on 29/11/2007 and so the proceedings under the said Act are abated since the said date. In the present matter the Government has not taken any steps for possession of the surplus land under section 10(3) of the said Act prior to 29/11/2007. Thus,the case of the petitioner is covered under the decision of the Supreme Court Mukarram Ali Khan Vs.State of Uttar Pradesh &Ors.(2007),11 Supreme Court Cases 90; in which it is held as follows- 5]Section-4 of the Repeal Act reads as follows : 4.Abatement of legal proceedings- All legal proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act ,before any Court, tribunal or other authority shall abate; Provided that this section shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the 3 principal Act insofar as such proceedings are relatable to the land,possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. 6] In view of the affidavit filed by the appellant to which no objection has been filed,undisputed position is that the State has not taken the possession over the surplus land.Therefore,the proceedings have to be treated to have abated under Section 4 of the Repeal Act. 6] Further reliance is placed on Voltas and Others Vs.Additional Collector & Competent Authority ,2008(5) Bom.C.R.746 and the SLP preferred against this decision was dismissed by the Hon’ble Supreme Court. 7] The petition will therefore have to be allowed in terms of prayer clause (b), (c) & (d) which read as follows. (b) By issuing writ of certiorari or any other suitable writ/direction/order,the Notification u/s 10(3) dated 14/12/2005 (Exhibit-B) be quashed and set aside since,deemed vesting of Petitioner’s land contemplated by said Notification has come to an end on 29/11/2007. (c) It be declared and/or held that the land held by the Petitioner Land Survey No.98/8-B ,98/11 out of Survey No.27/2 admeasuring 104.6 sq.mtrs.situated at village Kondivita, Tal. Andheri, Dist.Mumbai has not vested in the State Government and continues to remain with the Petitioner in view of the provisions of Urban Land (Ceiling & Regulation) Repeal Act,1999. (d) The proceedings u/s 10 of the U.L.C.Act ,1976 & Appeal No.117 of 2007 pending before Ld.Addl.Commissioner Konkan 4 Division, Konkan Bhavan, Mumbai in respect of Petitioner’s land be declared as abated. Rule made absolute with no order as to costs. (J.N.Patel,J.) (Mrs.Mridula Bhatkar,J.) SRS