wp.9238.07 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9238 OF 2007 Jayawant Dnyanoba Murkute. ..Petitioner. Versus State of Maharashtra and another. ..Respondents. .... Mr.S.M. Gorwadkar, Advocate for the Petitioner. Mr.C.R. Sonawane, A.G.P., for Respondent Nos.1 & 2. .... CORAM : D.K. DESHMUKH, AND K.K. TATED, JJ. DATED : 17TH DECEMBER, 2009 P.C. (Per K.K.TATED,J.) :- 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. By this Petition under Articles 14 & 226 of Constitution of India, 1950, the petitioner is challenging the order dated 21.11.2007 passed by the Government of Maharashtra under Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, hereinafter referred to as "the ULC Act, 1976") thereby setting aside the order dated wp.9238.07 2 15.2.1999 passed by the Competent Authority thereby declaring that the provisions of the ULC Act, 1976 are not applicable to Survey Nos.263/5, 262/1, 177/3 & 10/3 at village Baner, Taluka - Haveli, District - Pune, and directing the petitioner to pay the land value at the market rate, failing which the said money be recovered as arrears of land revenue and the petitioner be prosecuted. 3. It is case of the petitioner that petitioner's father deceased Dnyanoba filed an application before respondent No.2 for declaration that the provisions of ULC Act, 1976 were not applicable to the aforesaid lands and also requested for issuance of necessary certificate. The said application was allowed by the Competent Authority on 15.2.1999 and the declaration sought was granted. Thereafter the petitioner on 26.9.2003 obtained non-agricultural permission from the District Collector, Pune. It is case of the petitioner that the Corporation allowed the petitioner to develop Survey Nos. 10/3 & 263/5 and the commencement certificate were issued. After the said property was developed by the petitioner, the Divisional Commissioner, Pune issued notice wp.9238.07 3 dated 11.8.2006 for review of the order dated 15.2.1999 passed by respondent No.2 under Section 34 of the ULC Act, 1976. The petitioner submitted that till the impugned order passed by the Authority on 21.11.2007, his land has been never declared as excess. The petitioner submitted that after the ULC Act, 1976 was repealed as the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short, hereinafter referred to as "the ULC Repeal Act, 1999" ) by the State of Maharashtra w.e.f. 29.11.2007 by the State Legislative by adopting Central Act 15 of 1999, the impugned order has become inexecutable. The petitioner submits that the respondents had been divested of its authority to enforce the repealed provisions of ULC Act, 1976. In view of the ULC Repeal Act, 1999, the impugned order stands abated and inoperative after 29.11.2007. He further submitted that the petitioner is in possession and no compensation was paid to the petitioner till today. He further submitted that no scheme under Section 20 of the ULC Repeal Act, 1999 has been implemented in respect of the property in issue. wp.9238.07 4 4. On the other hand, the learned A.G.P. appearing for the respondent submitted that as the land holder has neither filed a statement under Section 6 of the Act nor the competent authority compelled him to file the return, therefore, the impugned order passed by the authority dated 21.11.2007 is as per law. 5. It is to be noted that the ULC Act, 1976 was repealed on 29.11.2007. Till that date, the actual possession of the land was admittedly not taken. Therefore, as a result of the ULC Repeal Act, 1999, as possession of the land was admittedly not taken, the proceedings will abate. This view is supported by the judgment of Division Bench of this Court in the matter of Voltas Ltd., & anr. vs. Additional Collector & Competent Authority & Ors. reported in 2008(5) Bom.C.R. 746. In para 11 of the judgment, Their Lordships stated the law thus : "Now so far as those lands which are owned by the petitioners in relation to which a notification under sub-section 3 of Section 10 of the Principal Act was issued and the order under sub-section (5) of Section 10 of the Principal Act was made are concerned, it is the provisions of Section 3 of the Repeal Act which are relevant. Reading of Section 3 wp.9238.07 5 of the Repeal Act shows that it is a saving clause and sub-section 1(a) of Section 3 of the Repeal Act saves vesting of any vacant land under sub-section (3) of Section 10 of the Principal Act, possession of which has been taken over by the State Government. In other words, vesting of vacant lands under sub- section (3) of Section 10 of the Principal Act in the State Government, possession of which has not been taken over, is not saved. In the present case, it is an admitted position that though declaration under sub-section (3) of Section 10 of the Principal Act was made, the possession of the land was not taken over by the Government or by the Competent Authority. Therefore, on bare reading of the provisions, it can be said that by virtue of repeal, vesting of the land of the first petitioner in the State by virtue of declaration made under sub-section (3) of Section 10 of the Principal Act, is not saved. A submission on behalf of the State Government was made that by virtue of declaration made sub-section (3) of Section 10 of the Principal Act in relation to the petitioners' land, the land has vested in the Government, but there is no provision in the Repeal Act which divest the State Government of the ownership of the land. In our opinion, this submission has no substance. Firstly, because the purpose of enacting section 3(1)(a) of the Repeal Act is to save or protect vesting of vacant lands in the State Government and out of the vacant lands that might have vested in the State Government by virtue of declarations made under sub-section (3) of Section 10 of the Principal Act, only vesting of those lands in the State Government of which possession has been taken has been saved. Therefore, by necessary implication it follows that vesting of those lands in the State Government under sub-section (3) of Section 10 of the Principal Act of which possession has not been taken has been repealed or made ineffective. ....." wp.9238.07 6 6. The law stated above fully applies to the facts of this case. In the result, therefore, Petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (c) which reads as under : "(c) Impugned order dated 21.11.2007 passed under Section 34 of the Urban Land (Ceiling & Regulation) Act, 1976 in respect of Survey No.10/3, 177/3, 262/1 and 263/5) at Baner thereby setting aside the order dated 15.2.1999 of Respondent No. 2 and sanctioning Sec. 20 Scheme sou-motu and directing the Petitioner to pay market value of the said land as per the Government Ready Reckoner for the purpose of development and also directing recovery of the said amount as arrears of land revenue and directing criminal prosecution against the Petition, be quashed and set aside;" 7. Writ Petition is disposed of accordingly. No order as to costs. (D.K.DESHMUKH,J) (K.K. TATED,J)