1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 723 of 2008 Mr. Narayan s/o. Hiralal Patel R/o. 117, Naidu Marg, Sitabuldi, Nagpur. 2. Shri Harinarayan s/o. Hiralal Patel R/o. 117, Naidu Marg, Sitabuldi, Nagpur 3. Shri Shivnarayan s/o Hiralal Patel R/o. 117, Naidu Marg, Sitabuldi, Nagpur. 4a) Col. Tukaram Yadav 4b)Mr. Aniruddha Tukaram Yadav 5) Shri Jainarayan S/o Hiralal Patel Judge, R/o. 7, Sarang Gen. J. Bhosale Marg, Mumbai-400 021. ....Petitioners Vs. 1) The State of Maharashtra & anr. Secretary, Urban Development Department, Mantralaya, Mumbai -32. 2) The Additional Collector and Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, Nagpur. ....Respondents Mr. Y.S.Jahagirdar, Sr. Counsel with Mr. Milind Sathe-Sr. Counsel with Mr. Hitesh Jain Rajlaxmi Mohandas with Subhash Jadhav i/b. ALMT Legal for petitioner. Mr. S.R.Nargolkar-GP for respondents 1 & 2. 2 CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:- April 20, 2010 P.C. Heard Counsel for the parties. 2. Leave to amend to mention the correct date of order of the Competent Authority in the prayer clause as 15th November, 2007 is granted. Amendment be carried out forthwith. 3. By this Petition under Article 226 of the Constitution of India, the Petitioners have prayed for following reliefs (as amended):- “1) quash and set aside the draft statement (Annexure No.7) prepared by the respondent No. 2, the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, and the order dated 31.10.2007 (Annexure No. 10-Last Item), recorded in the order sheet and direct the said authority to grant reasonable opportunity of hearing to the petitioners and conduct inquiry under Section 8(1) of the ULC Act with notice to the petitioners, before preparing the draft statement; quash and set aside the order dated 31.10.2007 (Annexure No.10 – Last Item) recorded in the order sheet; 1A. quash and set aside the impugned order dated 15.11.2007 with its enclosure (Annexure No. 11); 1B. declare that the proceedings of ULC Case No. 123 of 2007 pending before the Additional Collector and 3 Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976, Nagpur, the respondent no.2 stand abated in view of the Urban Land (Ceiling & Regulation) Repeal Act, 1999, and consequently the impugned order dated 31.10.2007 (Annexure No. 10 – Last Item) and the impugned order dated 15.11.2006 (Annexure No. 11) shall not have any effect and shall not remain in operation;” 2) pending the disposal of the instant petition, further proceedings of Case No. 123/2007 pending before the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, and the order dated 31.10.2007 be kindly stayed; 2A. pending the disposal of the instance petition, the effect, execution and operation of the order dated 15.11.2007 and its enclosure (Annexure No. 11) passed in ULC Case No. 123/2007 by the Additional Collector and the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, be kindly stayed;” 3) the petition be kindly allowed with costs and grant any other relief which may be deemed fit and proper in the facts and circumstances of the case. The Petitioners submit that the proposed amendment only seeks to bring on record the subsequent change in law and its effect. It does not in any manner change the nature of the petition. The same, therefore, deserves to be allowed. It be accordingly allowed in the interest of justice.” 3. The background in which this Petition has been filed, briefly stated, is that, notice was issued by the Competent Authority on 14th May, 2007 calling upon the Petitioners to file statement which they had failed and neglected to file during the operation of ULC enactment. The Competent Authority issued another notice on 6th August, 2007 on the same lines. In response to the said notices, the Petitioners filed reply on 15th October, 2007 offering explanation in the context of the said show-cause notices. The Competent Authority caused 4 to undertake spot inspection of the property referred to in the said show-cause notices on 17th October, 2007; and thereafter draft statement under Section 8(3) of the ULC Act was issued on 24th October, 2007. In response to the said draft statement, Petitioners filed objection which came to be rejected on 31st October, 2007. Eventually, the Competent Authority passed order on 15th November, 2007 holding that the land held and possessed by the Petitioners was surplus to the extent of 1,33,573.0284 sq. meters. The Competent Authority excluded the area to the extent of 4500 sq. meters which was permissible within the norms prescribed by the said Act. The Competent Authority has also noticed that the Petitioners had made request to permit them to develop the surplus land by taking recourse to provisions of Section 20 of the Act so that the surplus land to the extent of the scheme can be exempted. Considering that request of the Petitioners, the Competent Authority in the same order observed that it will be open to the Petitioners to apply to the State Government who was competent to grant such exemption under Section 20 of the Act, within seven days from the date of the order failing which steps to take over the possession of the surplus land will be taken. In the statement which was filed under Section 6(1) by the Petitioners, a positive assertion was made that the Petitioners may apply for exemption under Section 20 after order under Section 8(4) was to be passed in respect of the surplus vacant land. However, inspite of the option offered by the Competent Authority in its order dated 15th November, 2007, the Petitioners did not avail of the said remedy. In other words, no formal proposal for development of the surplus vacant land to exempt it as per the Scheme to be approved by the State Government, was submitted by the Petitioners. This position is not in dispute at all. Naturally, therefore, no order under Section 20 has been passed by the State Government so as to exempt the surplus vacant land or to impose conditions in that behalf as may be permissible by law. It is also not in dispute that no notification 5 under Section 10 was issued nor possession of surplus land has in fact been taken over by the Authorities from the Petitioners. Whereas, in the affidavit filed before us by Respondent No. 2 dated 27th November, 2007, it is plainly admitted that the Respondents have not taken possession under Section 10 of the Act of the said surplus vacant land from the Petitioners. Even in the subsequent affidavit filed on behalf of the Respondents 1 & 2, sworn by Mr. Chintaman S. Dahalkar Additional Collector and Competent Authority-ULC Nagpur, dated 14th March, 2008, the Respondents have not claimed that they have taken possession of surplus vacant land from the Petitioners on or before 29th November, 2007. As a matter of fact, no reference is made to the factum of possession. On the other hand, the Petitioners have asserted that the Petitioners are in possession of the concerned land including the surplus vacant land even after 29th November, 2007 which is the date of repeal of ULC Act, in so far as Maharashtra State is concerned. On these admitted facts, we will have to address the question that arises for our consideration: The question is whether on repeal of the ULC Act on 29th November, 2007, the authorities can take recourse to the proposed action in respect of the surplus vacant land in question merely on the basis of the order dated 15th November, 2007? 4. Indeed, it is the case of the Respondents that the Respondents have already granted exemption under Section 20 as per the said order dated 15th November, 2007. In so far as this stand of the Respondents is concerned, the same will have to be stated to be rejected. In as much, as on the plain language of the order dated 15th November, 2007, it is amply clear that the Competent Authority gave option to the Petitioners to submit proposals to the State Government and invite order under Section 20 of the Act. It is not in dispute that such proposal was not submitted at any point of time-much less 6 before the repeal of ULC Act on 29th November, 2007. Assuming that such proposal was submitted or the statement made under Section 6(1) of the Act were to be treated as commitment of the Petitioners for submitting such proposal, the fact remains that infact no order has been passed by the State Government under Section 20 of the ULC Act. So long as such order has not been passed, the question of assuming that the exemption under Section 20 has been granted does not arise. For, that authority exclusively vests in the State Government and the Competent Authority, cannot assume such powers. Taking any view of the matter, we have no hesitation in concluding that as of today no order under Section 20 has been passed by the State Government. If it is so, it would necessarily follow that on the date when ULC Act was repealed i.e. 29th November, 2007, the Petitioners continued to remain in possession of land including the surplus vacant land in question and have been enjoying possession thereof even till date. In that situation, the principle expounded by this Court in the case of Voltas Ltd. & anr. v/s. Additional Collector & Competent Authority, Thane & ors. Reported in 2008 (5) ALL MR 537 will squarely apply to the fact situation of the present case. The principle enunciated in this decision has been upheld by the Apex Court in the case of Mukarram Ali Khan vs. State of U.P. & ors. reported in 2007 AIR SCW 6286. 5. Apriori, the issue under consideration will have to be answered in favour of the Petitioners. In as much as, consequent to the repeal of ULC Act on 29th November, 2007 coupled with the fact that the possession of the land in question has not been taken over by the Authorities and that no express order under Section 20 has been passed by the State Government, the inevitable conclusion is that the proceedings initiated under the provisions of ULC Act in relation with the subject land has lapsed and cannot be taken forward by the 7 concerned Authorities. 6. Accordingly, this Petition succeeds. Rule is made absolute in terms of prayer clauses 1A and 1B. No order as to costs. (R.M. SAVANT, J) (A.M.KHANWILKAR, J)