1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2138 OF 2009 Harshvardhan Co-op.Hsg.Society Ltd. ...Petitioner. vs. 1.The State of Maharashtra & ors. ...Respondents. --- Mr.G.S.Godbole, for Petitioner. Mr.V.S.Gokhale, A.G.P. for Respondent nos.1 to 4. CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 5th December,2009 P.C.:- 1. The learned Counsel appearing for petitioner submits that he is restricting his petition in relation land from Survey no.13/1/2 and 17/1/1/2 and 2 he is withdrawing his petition in relation to the land from Survey no.18/3A/2 with liberty to file a fresh petition on same cause of action. The petition is permitted to be withdrawn in relation to Survey no. 18/3A/2 with liberty sought. 2. Rule. Returnable forthwith. Heard finally by consent of parties. The petitioner is a Co-operative Housing Society which has purchased land from Survey no.13/1/2 admeasuring 5500 sq.meters at Village Pimple Nilakh, Taluka Haveli, Dist. Pune and Survey no. 17/1/1/2 admeasuring 6300 sq.meters from Village Pimple Nilakh, Taluka Haveli, Dist. Pune. These lands were purchased by the petitioner-Society, after obtaining due permission from the Deputy Collector and the Competent Authority under the Urban Land (Ceiling & Regulation) Act, from the family of Shri.Uttam Dhondiba Sathe. The said Uttam Dhondiba Sathe and others had filed return under the Urban Land (Ceiling & Regulation) Act in relation to the land held by him. An order under Section 8(4) of the Urban Land (Ceiling and Regulation) Act was made in relation to the return 3 filed by Mr.Uttam Dhondiba Sathe & others holding that they hold 18165 sq.meters of land surplus. A corrigendum to order dated 3.4.1997 declaring 18165 sq.meters of land surplus, was issued on 14.1.2002. By that corrigendum it was declared that from the holding of family of Mr.Uttam Dhondiba Sathe, land admeasuring 18665 sq.meters is surplus. It appears that one Sanjay Vasant Sathe had also filed return under the Urban Land (Ceiling and Regulation) Act and in that return he had included the lands from both the Survey numbers which the petitioners have purchased in his holding. An order under Section 8(4) of the Urban Land (Ceiling and Regulation) Act was made on the return filed by Mr.Sanjay Vasant Sathe on 29.9.2006 holding that he does not hold any surplus vacant land. However, it was clarified that he will have to file fresh return in relation to Survey no.14/1/1/1/2 and 14/3/1/2, in case those lands become buildable. It appears that Mr.Sanjay Vasant Sathe and others including Mr.Uttam Dhondiba Sathe had filed an appeal being Case no.PUNE/ULC/APPEAL/7/2006 against Order dated 3.4.1997 and the Corrigendum dated 14.1.2002 4 which relates to the return filed by Mr.Uttam Dhondiba Sathe. In that appeal, an order was made on 4.6.2007 by the Appellate Authority. The order was made declaring that the lands from Survey no.13/1/2 admeasuring 5500 sq.meters and Survey No.17/1/1/2 (Wrongly mentioned as Survey No.17/1/1/1/2) admeasuring 4935 sq.meters of Village Pimpale Nilakh being non-vacant lands and the land from Survey no. 18/3A/2 admeasuring 4830 sq.meters and the land from Survey no.66/2 admeasuring 1700 sq.meters and the land from Survey no.66/3 admeasuring 1700 sq.meters were declared as surplus vacant lands. It appears that Revisional proceedings were taken up by the Government of Maharashtra against the order of the Appellate Authority. That Revision was decided by order dated 3.11.2007. The State Government held that the Appellate Authority was not justified in entertaining the appeal due to huge delay involved, and therefore, the order passed by the Appellate Authority was set aside. A Scheme under Section 20 of the Act for exemption of surplus land under the provisions of the Urban Land (Ceiling and Regulation) Act was 5 sanctioned. It was further stated that if within a period of Eight days, the land holder does not submit a scheme under Section 20 of the Act for exemption then price of the land at the rate mentioned in the Ready Reckoner should be recovered from the land holder. If no action, pursuant to this, is taken, possession of the land should be taken as Government land. 3. The learned Counsel appearing for petitioner submits that though the order passed by the State Government is invalid because it has been passed without granting an opportunity of being heard to the petitioner though the petitioner has purchased land after obtaining due permission from the Competent authority under the Urban Land (Ceiling & Regulation) Act, according to the learned Counsel, even if it is assumed that the State Government was justified in setting aside the order of the Appellate Authority, the State Government had no power and jurisdiction either to direct that the price of the land should be recovered from the landholder or the possession of the 6 land should be taken treating it to be Government land. He further submits that, in any case, as the possession of the land, which is declared surplus either by the first order or by the corrigendum dated 14.1.2002, was never taken by the Government, on repeal of the Principal Act by the Urban Land (Ceiling & Regulation) Repeal Act on 29.11.2007 all further proceedings under the Urban Land (Ceiling & Regulation) Act are abated. He relies on the Judgment of the Division Bench in the Case Voltas Ltd. & Anr. Vs. Additional Collector & Competent Authority & Ors, 2008(5) Bom.C.R. 746 . 4. We have heard the learned Counsel appearing for the respondents. In our opinion, it is clear that even assuming that the Government was justified in setting aside the order of the Appellate Authority dated 4.6.2007 then also the consequence will be the declaration made by corrigendum dated 14.1.2002 will stand and there will be surplus land in the holding of the landholder and it is possible that the petitioner- society will be holding the land which is declared as 7 surplus by that order. But as per the provisions of the Urban Land (Ceiling and Regulation) Act, if the land is declared and delimited as surplus land, the Government can take possession of the land as per Urban Land (Ceiling and Regulation) Act. The Government does not have power to recover price of the land from the land owners, nor does it have power to treat the land as Government land on failure of the land owners to pay price of the land. In our opinion, as the Government in paragraph 12 of its affidavit admitted that the possession of the land was not taken from the petitioner or the land owner before 29.11.2007, in view of the provisions of the Repeal Act and the Judgment of the Division Bench in Voltas Ltd. & Anr. Vs. Additional Collector & Competent Authority & Ors, 2008(5) Bom.C.R. 746 all further proceedings under the Urban Land (Ceiling & Regulation) Act will abate. In our opinion, therefore, the petition will have to be allowed. It is accordingly, allowed. It is declared that all further proceedings under the Urban Land (Ceiling & Regulation) Act in relation to land from Survey no. 8 13/1/2 admeasuring 5500 sq.meters and land from Survey no.17/1/1/2 admeasuring 5200 sq.meters held by the petitioner of Village Pimple Nilakh have abated. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (K.K.TATED, J.)