1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.438 OF 2009 Kishore G. Mohnani and ors. ..Petitioners Vs. The State of Maharashtra and ors. ..Respondents ......... Mr.G.S.Godbole i/b.Mr.R.R.Kalekar, for petitioners. Mrs.M.P.Thakur, AGP for respondent nos.1 to 3. ......... CORAM: P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 26 th APRIL, 2010. P.C. : By way of this writ petition, the petitioners have prayed for setting aside the proceedings initiated under Section 8(4) and proceedings under Section 10 of the ULC Act, 1976 on the ground that the proceedings are abated in view of the repealing of ULC Act. 2] It is the case of the petitioners that they are heirs of original lessee and by virtue of the same, they are in possession of the disputed land. The owner of the land filed a statement with the Competent Authority and the Competent 438-09.sxw 2 Authority as back as on 2 nd September, 1983 passed an order under Section 8(4) of the ULC Act declaring the land in question as excess land. Thereafter, the original land owner or even the lessee had not filed any proceedings challenging the order of the Competent Authority. Subsequently in the year 2007, perhaps with a view to taking the benefit of Repealed Act, the present petitioners have challenged the order passed by the Competent Authority under Section 8(4) dated 2 nd September, 1983, by way of appeal before the Appellate Authority. It is required to be noted that the said appeal was filed by the petitioners as the heirs of original lessee. The said appeal was filed on 24 th April, 2007. 3] The Appellate Authority in the order dated 12 th November, 2007 observed that before passing the order under Section 8(4), notice was issued under Section 8(3) dated 18 th May, 1983 and the said notice was received by the original owner on 19 th May, 1983. It is also observed in the said order that the notice was issued to Govindram Mohnani (alleged lessee) on 15 th May, 1983. Under the circumstances, the Appellate Authority found that there is no reason to condone such inordinate delay of 24 years in filing the appeal. 4] Mr.Godbole, learned counsel for petitioners, submits that since the present petitioners are already in possession, under the ULC Act the benefit of repealed Act should be given and the proceedings should be abated. The said argument is opposed by Mrs.Thakur, learned AGP for respondent State. She 438-09.sxw 3 has relied upon the the affidavit-in-reply filed by the Addl. Collector and Competent Authority. Paragraph No.15 of the reply read thus:- With reference to Para. No.7 of the petition, I say that the State Government has authorised CTSO, Kurla to take possession on its behalf. Accordingly the office staff of CTSO Kurla have taken possession of the surplus vacant land on 9.2.2007 ex-parte as no one on behalf of declarant was present to handover the possession. The CTSO, Kurla have also submitted the possession receipt and Panchnama to this office. 5] In our view, there is no substance in this petition since the possession is already taken over and, since the Competent Authority is in possession of the land, the benefit of Repealed Act is not available. As the possession is already taken away and since no proceedings are pending, there is no question of abating the proceedings and, therefore, the petition, in our view, is thoroughly misconceived. Mr.Godbole, learned counsel for petitioners, frankly submits that the land of the original lessor has already been declared surplus and the lease was given to the predecessor in title and the predecessor in title has never challenged the order under Section 8(4). The notice under Section 8(3) of the ULC Act was sent to Shri.Govindram Mohnani on 15 th May, 1983. He, however, did not challenge the order dated 2 nd September, 1983 passed under Section 8(4) of the ULC Act during his lifetime. In view of this, the heirs of the original 438-09.sxw 4 lessee cannot take out any proceeding as the rights of the original lessee has already been determined and he has not taken out any proceedings in this behalf at the relevant time. 6] Writ Petition is rejected. Notice is discharged. [R.G. KETKAR, J.] [P.B. MAJMUDAR, J.] 438-09.sxw