1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.3509 OF 2009 1. Maroti Ramaji Bobde, Aged about 69 yrs., Occ. Agrilst., 2. Keshav Madhaorao Bobde, Aged about 62 yrs., Occ.Service, 3. Ishwar Madhaorao Bobde, Aged about 49 yrs., Occ.Service, 4. Jagdish Madhaorao Bobde, Aged about 48 yrs., Occ.Service, 5. Narendra Ramchandra Bobde, Aged about 46 yrs., Occ.Business, 6. Purushottam Ramchandra Bobde, Aged about 40 yrs., Occ.Business, 7. Sanjay Ramchandra Bobde, Aged about 40 yrs., Occ.Business 8. Smt. Kamlabai Ramchandra Bobde, Aged about 66 yrs., Occ. Housewife, 9. Krushnaraj Maroti Bobde, Aged about 34 yrs., Occ.Agrilst., 10.Hansraj Maroti Bobde, Aged about 31 yrs., Occ.Agrilst., 2 11. Dattaraj Maroti Bobde, Aged about 28 yrs., Occ.Agrilst., 12.Prabhuraj Maroti Bobde, Aged about 26 yrs., Occ.Agrilst., 13.Parag Keshav Bobde, Aged about 25 yrs., Occ.Student, 14.Ku. Pallavi Keshav Bobde, Aged about 28 yrs., Occ.Student, 15.Umesh Narendra Bobde, Aged about 21 yrs., Occ. Student. 16.Ku. Trupti Narendra Bobde, Aged about 20 yrs., Occ. Student. All r/o. Chichbhuvan, Nagpur, being the LR’s of Late Rama Nago Bobade and all the petitioners are being represented through their duly constituted attorney Shri Kamlesh Chadrashekhar Dadhe, Aged about 48 yrs., Occ.Business, r/o. Swami Apartment, Behind Lokmat Building, Ramdaspeth, Nagpur. ........ PETITIONERS // VERSUS // 1. State of Maharashtra, through its Secretary, Urban Development Department, Mantralaya, Mumbai. 2. Competent Authority and Additional Collector (ULC), Collectorate, Civil Lines, Nagpur. 3. The Tahsildar, Tehsil Office, Nagpur (Rural), Civil Lines, Nagpur. 3 4. Maharashtra Housing and Area Development Board, Civil Lines, Nagpur. ....... RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. C.V.Kale, Adv. for petitioners. Mrs.B.H.Dangre, A.G.P. for Respondent Nos. 1 to 3. Ms N.P.Mehta, Adv. for Respondent No.4. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ********* Date of reserving the Judgment : 20.11.2009. Date of pronouncement of Judgment : 25.11.2009. ********* CORAM : D.D.Sinha & F. M. Reis, JJ. ORAL JUDGMENT (Per D. D. Sinha, J) : 1. Heard Mr. C. V. Kale, Counsel for petitioners, Mrs.B.H.Dangre, Additional Government Pleader for respondent nos. 1 to 3 and Ms N.P.Mehta, Adv. for Respondent No.4. Rule returnable forthwith by the consent of parties. 2. Counsel for petitioners has submitted that petitioners are owners of land ad-measuring 14,321.16 Square Meters situated at mouza Chichbhuvan, Nagpur. It is contended that the said land was under Urban agglomeration and therefore, provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act”) were 4 applicable. Hence, ULC Case No.3154 of 1976 came to be registered. Respondent no.2, competent Authority under the ULC Act, after verification, passed an order u/s. 8(4) of the ULC Act on 30.11.1981 and held that the petitioners possessed the land ad-measuring 8134 Square Meters in excess of ceiling limits. On 7.10.1982, respondent no.2 published notification u/s. 10(1) of the ULC Act declaring intention of the State Government to acquire the vacant land in excess of ceiling limits. However, the petitioners have no notice of the said notification. Petitioners have been in possession of the land in question which was declared in excess by respondent no.2 and continued to be in actual physical possession of the said land till today. Counsel for petitioners has further contended that the petitioners have not received any compensation in respect of aforesaid surplus land. 3. It is contended that, on 2.11.1989, respondent no.2 published a notification u/s. 10 (3) of the ULC Act; in spite of said notification issued by respondent no.2, petitioners continued to hold physical possession of the land in question. It is further contended that respondent no.2 has not issued notice in writing to the petitioners u/s. 10 (5) of the ULC Act nor possession of the petitioners in respect of land in question is disturbed. Counsel for petitioners, therefore, has submitted that the action taken by respondent u/s. 10 (3) of the Act of vesting of the vacant land shall not 5 be protected by the Saving clause of the Repealing Act which has repealed the ULC Act w.e.f. 29.11.2007. 4. Counsel for petitioners has submitted that the controversy in question is covered by the decision of this Court reported in 2008 (5) ALL MR 537, Voltas Ltd. and anr. vs. Additional Collector and Competent Authority, Thane and Ors as well as judgment of this Court dated 2 nd July, 2009 delivered in Writ Petition No. 682 of 2009 (Waman s/o. Sukhdeo Tabhane and Ors. vs. State and Ors.). 5. Mrs. B.H.Dangre, Additional Government Pleader for respondent nos. 1 to 3 does not dispute the factual and legal aspect of the matter and has also not disputed that possession of the land in question is with the petitioners. It is also not in dispute that the issue involved in the present petition is covered by the decisions of this Court reported in the case of Voltas Ltd. and another (cited supra) as well as Waman Sukhdeo Tabhane and Ors. (cited supra). 6. We have considered the contentions canvassed by the respective counsel. The law laid down by the Division Bench of this Court in the case of Voltas Ltd. and another is considered by this Court in the 6 case of Waman Sukhdeo Tabhane and Ors. (cited supra) and in para 4 of the said decision, it is observed thus : “ We have considered the contentions of the learned counsel for the parties and perused the decision of this Court, cited supra. We feel it necessary to reproduce the concluding portion of the said decision, which reads thus :- “ 14................ .................... ....................... 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 7 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. “ 7. The law laid down by the Division Bench of this Court in the case of Voltas Ltd. and anr. (cited supra) which was affirmed by the Supreme Court and which is also relied by this Court in the case of Waman Sukhdeo Tabhane and Ors. (cited supra) clearly demonstrates that if possession of the surplus land after issuance of notification u/s. 10 (3) of the ULC Act has not been taken by the State Government or for that matter, even after issuance of notice u/s. 10 (5) of the ULC Act, all the proceedings under the provisions of the Principal Act in relation to the land mentioned in the declaration under sub-section (3) of Section (10) of the Principal Act lapses and these lands do not vest in the State Government. 8 8. In the instant case, it is not in dispute that, in spite of the notification u/s. 10(3) of the Act, the factual and physical possession of the land in question is still with the petitioners as on today and therefore, all the proceedings initiated by the respondent after the notification u/s. 10 (3) of the ULC Act stand abated. Consequently, the allotment of land dt. 5.8.1989 by respondent no.1 to respondent no.4 is declared illegal. Respondent Nos. 1 to 3 are directed to delete the name of State Government from 7/12 extract in respect of the land ad-measuring 8134 Square Meters of Khasra No.269, Mouja Chichbhuvan, P.H.No.43, Tq. and District Nagpur. Petitioners to move the Authorities for carrying out the mutation entry in the name of petitioners in respect of the land in question and the Authorities to pass an order accordingly. Rule is made absolute in the aforesaid terms. No order as to costs. JUDGE JUDGE jaiswal