1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3180 OF 2009 IN SUIT NO. 2276 OF 2009 M/s. Om Enterprises. ... Plaintiffs. V/s. The Collector (ULC) & Ors. ... Defendants. Mr. D.H. Mehta a/w. Usha Gadagkar i/b. Divya Shah Assoc. for the Plaintiffs. Ms. Geeta Shastri, AGP for Defendants 1 to 4. CORAM : S.C. DHARMADHIKARI,J. DATED : 6th NOVEMBER 2009. P.C. :- This Suit is filed by the Plaintiffs for a declaration that the Plaintiffs are owners of the Suit property (more particularly described at Annexure ‘A’ to the Plaint) and the Defendants have no right, title or interest of any nature in respect thereof. 2. There is a relief claimed that the Notification under Section 10(1) of the Urban Land (Ceiling and Regulation) Act, 1976, together with the declaration under Section 10(3) thereof, dated 7th August 2006 so also the Notice dated 8th November 2006 are illegal, null and void and liable to be quashed and set aside and that panchnama and possession receipt both dated 28th November 2006 are illegal and fraudulent documents. 3. A declaration is claimed that since repeal of ULC Act, all 2 proceedings under the said Enactment in respect of the Suit property stand abated. Therefore, the allotment of the Suit property to Defendant No.5 made on 30th October 2008 is also illegal, null and void. 4. Briefly, the controversy appears to be as to whether the Plaintiffs have subsisting ownership rights in the suit property, whether the suit property is still subject to the ULC Act, and whether the proceedings therein stand concluded or are affected by the Repealing Act. 5. An affidavit in reply has been filed on 14th October 2009 affirmed on 14th October 2009 by Purshottam Babu Bhoir, Deputy Collector and Competent Authority (ULC), Mumbai Suburban District, stating that the Suit property does not belong to the Plaintiffs and their claim that they have subsisting right therein is seriously disputed and that the property was rightly subjected to the ULC Act and the proceedings in that behalf are in no way vitiated. Further, the repeal Act would not apply as the land had vested absolutely in the State. 6. In so far as Defendant No.5 is concerned, it is contended that Apsara Co-operative Housing Society comprises of persons who are Officers and Engineers of Bhabha Automic Research Centre. They made an application on 29th June 1994 to the Government for grant of land for construction of housing tenaments for their members. The application of the 3 proposed society was processed and placed before Cabinet sub-Committee and the Cabinet sub-Committee took the decision and allotted area admeasuring 1379.76 sq.mtrs. of Plot No.3(part) sub-Plot Nos.3,4 and 5 of Village Mankhurd, Taluka – Kurla. The affidavit thereafter states that the land was affected by reservation and therefore, the construction of Tenaments could not be undertaken. Thereafter, the Society applied to the Government and requested to allot another Plot of land. The proposal was again sent to the Additional Collector and Competent Authority and thereafter, a decision was taken to allot a land admearuing 1323.6 sq.mtrs. of CTS 1250 to the proposed Society. Prior to that, it is stated that the Government has taken possession of the Suit property. Thus, the land belongs to the Government and it can be allotted by the Government in accordance with law. 7. However, the affidavit fairly states that although the Society has deposited Rs.62,65,020/- the possession of the said land is still not given to the proposed Apsara Co- operative Housing Society. The said Society is operating through the Chief Promotor Dr. Silen Ghosh. 8. The affidavit of service shows that the plaint and proceedings were sought to be served on Defendant No.5 Apsara Co-operative (Proposed). However, the deponent of the affidavit has pointed out on oath that when he reached the address of Defendant No.5, he found that Defendant No.5 is not in existence and when he enquired with some locals, he 4 did not succeed in his attempt to locate this Defendant. Be that as may, the land is yet not allotted to the said Society. The land is still in possession of the Collector, Mumbai Suburban District. 9. In these circumstances, interest of justice would be sub- served if it is directed that until further orders of this Court, the land proposed to be allotted to Defendant No.5 as more particularly set out in paragraphs 21 and 22 of the affidavit affirmed on 14th October 2009 shall not be alloted to the said Society (Defendant No.5). 10. The remaining land, that is the land other than proposed to be allotted to Defendant No.5, is stated to be in possession of Defendant Nos.1 to 4. However, the Plaintiffs have asserted that the physical possession of the entire suit property has not been taken by Defendant Nos.1 to 4. That panchnama and possession receipt is under challenge. In such circumstances, it is directed that all actions and steps that Defendant Nos.1 to 4 shall take in relation to the Suit property, more particularly, described at Exhibit ‘A’ to the plaint shall be subject to the further orders and directions of this Court in the Suit. The Notice of Motion is disposed off in these terms but without prejudice to the rights and contentions of both sides. No order as to costs. Liberty to apply. (S.C. DHARMADHIKARI,J.)