gst 1 cra168.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 168 OF 2010. Nihalchand Laloochand Pvt. Ltd. ... .... .... Applicant.. V/s Babulal Mohanlal Mehta & Ors. .. .... ... Respondents. Mr.R.A.Thorat i/by Mr.Rajesh Kachare, Adv. For the petitioner. Mr.Anil Singh i/by Mr.S.D.Patil, Adv. For R.No.8. CORAM: B.R. GAVAI, J. 7th April, 2011 PC: By way of present revision application the applicant challenges the order dated 27.1.2010 passed by the learned City Civil Court Judge in execution application No.254/09in Suit No.1494/85. 2. In a suit filed by the respondent-plaintiff under the provisions of the Maharashtra Ownership of Flats Act, 1996 (MOFA) a decree came to be passed on 22.7.2003 thereby directing the present applicant to execute a conveyance in respect of suit land together with building as described in clause 2 of the operative order within two months from the passing of judgment and decree. On failure to do so the plaintiff was to get the decree executed. The respondents-plaintiffs were required to file aforesaid execution application, since the defendant-applicant did not comply with the decree. A preliminary objection was raised on behalf of the present applicant on two grounds viz: (i) that since the land was declared a surplus vacant land the land vested in Government and unless it was reconveyed in favour of the applicant the applicant was not in position to execute the sale deed; (ii) since the decree was for more land than to which the plaintiffs were entitled in view of clause 10 of the order dated 4.1.80 passed by the Competent Authority the plaintiffs were not entitled to for execution of the entire land as provided under the decree. gst 2 cra168.10.sxw Said objection is rejected. Hence the present application. 2. Mr.Thorat, learned counsel appearing on behalf applicant submits that since the land in question was declared as surplus land unless it was reconveyed the decree was not capable of being executed. Learned counsel in this context relies upon a judgment of the Apex Court in the case of Darothi Clare Parreira Vs. State of Maharashtra & Ors., (1996) 9 SCC 633. Learned counsel further submits that perusal of clause 10 of the decree would reveal that the plaintiffs were only entitled for execution of sale deed of the building along with land appurtenant and vacant land to the extent necessary to be kept as per regulations. However he submits that the land in question was much more and therefore execution of excess land would not be permissible. 3. The contention of the applicant that after the land being declared surplus the land vested in State Government and unless it is reconveyed a sale deed cannot be executed is wholly without substance. Section 21 of the Urban Land (Ceiling & Regulation) Act, 1976 reads thus: “21. Excess vacant land not to be treated as excess in certain cases.__(1)Notwithstanding anything contained in any of the foregoing provisions of this Chapter, where a person holds any vacant land in excess of the ceiling limit and such person declares within such time, in such form and in such manner as may be prescribed before the competent authority that such land is to be utilised for the construction of dwelling units (each such dwelling unit having a plinth area not exceeding eighty square metres) for the accommodation of the weaker sections of the society, in accordance with any scheme approved by such authority as the State Government may, by notification in the Official Gazette, specify in this behalf, then, the competent authority may, after making such inquiry as it deems fit, declare such land not to be excess land for the purposes of this Chapter and permit such person to continue to hold such land for the aforesaid purpose, subject to such terms and conditions as may be gst 3 cra168.10.sxw prescribed, including a condition as to the time limit within which such building are to be constructed.” 4. Perusal of said section would reveal that once the scheme is sanctioned by the State Government for accommodation to weaker section of society the Competent Authority is entitled to declare such land not to be excess land for the purpose of this chapter and permit such persons to continue to hold such lands for the purpose mentioned in the said section. It can thus be clearly seen that a plain reading of said section would reveal that once scheme is sanctioned by the State Government for accommodation to weaker section an order is passed by the Competent Authority that such land would not be deemed to be excess land for the purpose of the said chapter. It would thus clearly mean that the said land would be exempted from the provisions of the said Act and therefore since the scheme is sanctioned, vesting of any land in the Government would automatically be annulled and land would be restored to the holder provided that it is utilised for the purposes specified in section 21 of the Act. Apart from that it is to be noted that the Urban Land (Ceiling & Regulation) Act has now been repealed and therefore the contention in this regard will have to be rejected. 5. In so far as the judgment in the case of Darothi Clare Parreira (supra) is concerned, I find that the facts in the said case totally different than the facts in the present case. In the said case notification under section 10(3) of the Act was published vesting the entire land in the Government with effect from 12.3.1979 vide notification published in the State Government on 16.2.1978. The holders of the land had made an application under section 20 which was disposed of on 22.1.1979. Thereafter appellants on 29.3.79 made an application under section 21 and also filed writ petition in the High Court challenging the notification issued under section 10(3). Writ petition was dismissed. A Special Leave Petition was filed in the Supreme Court. The contention raised before the Apex Court that unless the application under gst 4 cra168.10.sxw section 21 of the Act was considered and disposed of, the Competent Authority had no power to have notification under section 10(3) published. Negating the said contention the Apex Court observed thus: “It is difficult to accept the contention of the learned counsel for the appellants that the competent authority has no power to have the notification under section 10(3) published in the Gazette until the application either under Section 20 or 21 is disposed of. The very language of Sections 20 and 21 and the exercise of the power thereunder would arise only when the land stands vested in the Government. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under section 20 or to subserve the housing scheme for weaker sections under section 21 as envisaged thereunder. Thereat, the Government is required to consider whether the proposals made by the erstwhile owner for undertaking the scheme as envisaged under Section 21 or hardships as engisaged under Section 20 for exemption would merit consideration. In this case, admittedly, the application under section 20 came to be filed though that was suppressed before the High Court and this Court and came to be dismissed before notification under Section 10(3) of the Act was published. It also appears, as stated earlier, that application under Section 21 was filed on 29.3.1979, the date on which the appellants had filed the writ petition in the High Court. It would, therefore, be seen that the application came to be filed much after the date of the vesting and publication of the notification under Section 10(3) of the Act. The effect of the vesting is not contingent upon filing an application for disposal under either Section 20 or 21.” 6. It is thus clear that the Apex Court has clearly held that issuance of notification under section 10(3) was not contingent upon the order passed by gst 5 cra168.10.sxw the State Government under sections 20 and 21 of the said Act. On the contrary the Apex Court clearly goes to hold that the question of consideration of application under sections 20 and 21 would arise only after a notification is issued under section 10(3) of the said Act. It is difficult to understand as who the said case would support the proposition of the applicant. As observed herein above that the provisions of section 21 are clear which provide that once the scheme under section 21 for providing accommodation to weaker section is sanctioned the land in question would be exempted from the provisions of the said Act. 7. In so far as second contention is concerned admittedly judgment and decree passed by the learned City Civil Court was challenged by filing appeal before this Court which appeal came to be dismissed. The said judgment and decree has not been interfered with by this Court and has therefore attained finality. Once a judgment and decree is passed by learned trial Court and not interfered with by the higher court, executing court could not have gone beyond the decree. 8. In that view of the matter it cannot be said that the jurisdiction exercised by the learned trial Court has been exercised with any irregularity so as to warrant interference in revisional jurisdiction under section 115 of Code of Civil Procedure. It appears that the objection on behalf of applicants so also present revision application is a frivolous attempt on behalf of the judgment- debtor to protract the execution of decree which is passed in the year 2003. Revision application stands rejected. 9. At this stage Mr.Thorat, learned counsel prays for continuation of interim protection which was operating during pendency of revision application for a further period of four weeks. 10. Mr.Singh, learned counsel appearing on behalf of respondent-plaintiff states that the respondent-plaintiff shall not get the decree executed for a period of three weeks from today. In that view of the matter no orders are necessary.