1 wp2352.11.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 2352 OF 2011 Tilat Begum Shah Alam Khan & Anr. ....Petitioners. Vs. State of Maharashtra & Ors. ...Respondents. Mr. Kirit J. Hakani for the Petitioners. Mr. C.R. Sonawane, AGP for the Respondents. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 17 OCTOBER, 2011. P.C. :- Rule, returnable forthwith. Heard finally, by consent of the learned counsel appearing for the parties. 2 So far as the facts necessary for deciding this Petition are concerned they have been narrated in the affidavit of Sidharam Salimath, Additional Collector and Competent Authority. What is stated in paragraph Nos. 2, 3 and 4 of that affidavit is relevant. 2 wp2352.11.sxw ssm 3 Paragraph Nos. 2, 3 and 4 read thus:- “2. With reference to Paragraph No.3 of the Petition, I say that Smt. Shere Banoo Shaikh Mano had filed an application under Section 6(i) of Urban Land (Ceiling and Regulation) Act, 1976 on 14/08/1976 in which she declared her own land in respect of Kolekalyan village in Andheri Taluka in Mumbai Suburban District. 3. I say that on the basis of the statement and survey verification and preliminary enquiry made by the City Survey Officer II (ULC), a draft statement was provided to the holder of the land with a notice under Section 8(3) of the Urban Land (Ceiling and Regulation) Act, 1976 by calling upon the holders to prefer objections, if any, to the draft statement as stipulated in the said matter. (Hereinafter for the sake of brevity Urban Land (Ceiling and Regulation) Act, 1976 is referred to as the ‘said Act’.) I say that the hearing of the objections to the draft statement was held on 02/07/2002, when the land owners were represented by Shri R.D. Butala, Advocate. Shri R.D. Butala, Advocate had no objection to the draft statement except that the name of the co-owner Shri Sheikh Gafor Sheikh Kasam be shown in the statement as Smt. Shere Banoo Sheikh Manoo’s name be deleted as she expired on 02/11/1977. I say that on 20.7.1982 order u/s. 8(4) was issued stating the names of co-owners be shown as per the record in the final statement accordingly. The 3636.7 sq. Mtrs from various property was declared as surplus land of which 1571.2 sq.mtrs., from CTS no. 7240 of village-Kolekalyan Taluka- Andheri. 4. I say that the final statement and notification under Section 10(1) of the said Act was issued to the land holder on 29/7/1983. I say that a notification under Section 10(3) of the said Act was issued on 16/06/2005. I say that a notice under Section 3 wp2352.11.sxw ssm 10(5) of the said Act was issued on 08/09/2006 and the possession of the said land was taken on 07/10/2006 under panchanama and possession receipt.” 4 It is, thus the case of the State Government and the Competent Authority that possession of the land in respect of the surplus land under the Urban Ceiling Act was taken over on 7 October 2006 pursuant to a notice issued under Section 10(5) of the Urban Ceiling Act dated 8 September 2006. If this case of the Respondents is accepted as the possession of the land declared as surplus was taken before 29 November 2007, the State Government would be entitled to retain the possession. If on the other hand, it is held that possession of the land as alleged by the Respondents was not taken in accordance with law on 7 October 2006, then the entire proceedings under the Urban Ceiling Act would lapse on 29 November 2007, when the Urban Ceiling Act was repealed in the State of Maharashtra. (Voltas Ltd. and Anr. Vs. Additional Collector and Competent Authority and Ors, reported in 2008 (5) Bom. C.R. 746,) It is common ground that the notice under Section 10 (5) dated 8 September 2006 was issued to Smt. Shere Banoo Shaikh Manoo who had filed return under Section 6(1). Perusal of the order dated 20 July 1982 made by the Competent Authority itself under Section 8(4) shows that the 4 wp2352.11.sxw ssm Competent Authority was aware that the said Smt. Shere Banoo Shaikh Manoo has expired on 1 November 1977 and therefore, notice was issued to her legal representatives. Thus, it is an admitted position that the Notice under Section 10(5) was issued to a dead person, obviously therefore, possession of the land taken by issuing notice to a dead person and without issuing notice to the persons who are the legal representatives of the land owner would be invalid. Section 10(5) requires notice of possession to be given to the persons in possession. 5 In the result, the Petition is allowed. It is held that as possession of the surplus land was not taken on or before 29 November 2007 all proceedings under Urban Ceiling Act lapsed on repeal of the Urban Ceiling Act in the State of Maharashtra on 29 November 2007. Rule is made absolute accordingly. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)