1 wp737.09.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 737 OF 2009 The National Wire Heald Works Pvt. Ltd. ....Petitioner. Vs. The State of Maharashtra & Ors. ...Respondents. Mr. C.M. Korde, Sr. Advocate with Mr. Milind Jadhav i/by M/s. Hooseini Doctor & Co. for the Petitioner. Mr. Nalawade, Government Pleader for the Respondents. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 17 NOVEMBER, 2011. P.C. :- By this Petition, the Petitioner claims that no land from its possession could have been declared as surplus as is done by the order dated 30 June 2006. By the order dated 30 June 2006 land admeasuring 3161.30 sq. meters has been declared surplus from the holding of the Petitioner under the provisions of the Urban Ceiling Act. It is also the case of the Petitioner that possession of the land which was declared as surplus was not taken in accordance with the provisions of Sub-Section (5) and (6) of Section 10 of the Urban Ceiling Act before 29 November 2007 when the Urban Ceiling Act in 2 wp737.09.sxw ssm the State of Maharashtra was repealed therefore, all proceedings under the Urban Ceiling Act in relation to the land of Petitioner have lapsed. 2 We have heard the learned counsel appearing for both the parties. We have perused the record. We find from the record that on 6 October 1994 the Additional Industries Commissioner and Ex-officio Deputy Secretary, Government Housing and Special Assistance Department as a delegate of a State Government in exercise of the powers conferred under Sub-Section (1) of Section 20 of the Urban Ceiling Act exempted the land belonging to the Petitioner i.e. land admeasuring 8913.80 sq. meters from the provisions of the Urban Ceiling Act. Despite this exemption order, the Competent Authority by order dated 30 June 2006 declared land admeasuring 3161.30 sq. meters as surplus from the holding of the Petitioner. As the entire land of the Petitioner was exempted from the provisions of the Act, the Competent Authority could not have declared any land from the holding of the Petitioner as surplus. In any case, even assuming that the declaration of surplus land made on 30 June 2006 may be valid, it is to be seen that after notification under Sub-Section (3) of Section 10 was made and published in the Official Gazette on 9 November 3 wp737.09.sxw ssm 2006, order under Sub-Section (5) of Section 10 issued on 21 November 2006 asking the Petitioner to hand over possession of the surplus land on 30 November 2006 at 2.30 p.m. It is the case of the Respondents on a failure of the Petitioner to deliver the possession on that date i.e. on 30 November 2006, on the same day ex-parte possession was taken. The Petitioner has disputed that he received the order dated 21 November 2006. He has also disputed that on 30 November 2006, ex-parte possession was taken by anybody from him. 3 It is the case of the Petitioner that he has a building standing on the land where he is running a factory and therefore it cannot be said that ex-parte possession was taken, but apart from that it is clear from the order issued under Sub Section (5) of Section 10, the 30 days time was not given to the Petitioner to hand over possession. In Writ Petition No. 1461 of 2009, M/s. Johnson & Johnson Ltd. and Anr. Vs. State of Maharashtra dated 9 November, 2011 we have held that in view of the scheme of the provisions of Sub-Sections (5) and (6) of Section 10, a person in possession of the excess land is entitled to 30 days period for delivering possession of the land. It is only on failure of the person or refusal of the person in possession to hand over possession within a period of 30 days, under Sub-Section (6) of 4 wp737.09.sxw ssm Section 10 the authority becomes entitled to take possession using the force. 4 In this view of the matter, therefore, as the order made under Sub-Section (5) of Section 10 was itself contrary to law, possession taken pursuant to that cannot be termed as valid. Therefore, in our opinion in any case as on or before 29 November 2007 as possession of the surplus land was not taken in accordance with the law by the authority on repeal of the Urban Ceiling Act in the State of Maharashtra, in view of the judgment of the Division Bench of this Court in Voltas Ltd. Vs. Additional Collector & Competent Authority 1 all further proceedings under the Urban Ceiling Act in relation to the land of the Petitioner would lapse. 5 In this view of the matter, therefore, the Petition succeeds. The rule is made absolute in the above terms. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.) 1 2008(5) Bom. C.R. 746