Madan Jagobaji Welekar and Others vs State of Maharashtra and Others

A.B. Chaudhari, J.—Rule return able forthwith. Heard finally with the consent of the learned Counsel for the parties. By the present petition, the petitioners. who are the erstwhile owners of the suit lands, have sought a declaration that the proceedings under Sections 9 and 10 of the Urban Land (Ceiling and Regulation) Act, 1976 have abated in view of Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. There is a further prayer for declaration that the petitioners have been in possession of the suit lands.

Shri. Vaidya. the learned Counsel for the petitioners, vehemently argued that on 15/6/ 1983, an order was made by the competent Authority under the Urban Land (Ceiling and Regulation) Act. 1976 declaring 34.455 square meters of land of the petitioners as surplus and directing surrender thereof to the State Government. After the said order was passed, a notification as required by the Act of 1976 was issued on 27/7/1989 and in the said notification, it was stipulated that the suit land that was declared surplus would be surrendered to the State Government, which was indicated as 2,975 square meters only out of Survey No. 43/1. Undisputedly. the said notification dated 27/7/1989 is still in force. In other words, the said notification has neither been amended nor recalled. Thus, the position that stands is that an area of only 2.975 square meters of the petitioners was ultimately declared as surplus and nothing more.

Thereafter, it appears that the suit lands were handed over to the respondent No. 3 Nagpur Improvement Trust and a possession receipt was executed. The possession receipt (Annexure VII to the petition) shows that possession was taken from the Additional Collector (ULC), Nagpur and the Authority giving possession was the same, namely, Additional Collector (ULC). Nagpur. Section 10(5) of the Act of 1976 has been held to be mandatory. As per that provision, the possession of the land has to be taken from the owner or holder thereof by the competent Authority, i.e. Additional Collector (ULC) and then it could be handed over to the person or Authority to whom it is allotted under the provisions of the said Act. In the instant case, however, the possession receipt on record shows the aforesaid state of affairs. This clearly means that the possession of the suit lands was never taken from the petitioners and as such, it remained with the petitioners till the Urban Land (Ceiling and Regulation) Repeal Act. 1999 came into force. It is in that point of view, the instant case will have to be looked into.

It is an admitted fact that the possession of the suit lands continued to remain with the petitioners though it is contended by the learned Counsel for the respondents that the same was actually handed over to the respondent No. 3 Nagpur Improvement Trust. We do not agree with the learned Counsel for the respondents since handing over of the possession of the suit lands must be in accordance with the provisions of Section 10 of the Act of 1976 and other mandatory provisions thereof.

In the instant case, as has been observed earlier by us, such requirement has not been complied with. On the contrary, the land that was notified is only 2,975 square meters and secondly, there is no possession receipt in accordance with the procedure that is required to be followed by virtue of Section 10(3) and (6) of the Act of 1976. That being so, we hold that the benefit of repeal must go to the petitioners in law since they are legally entitled to the same.

The learned Counsel for the respondents have raised another contention that the petitioners even before filing of this petition and even before repeal of the Act of 1976 have sold out the suit lands and. therefore, the petition is not maintainable. We do not agree. The reason is that the suit lands never stood transferred or possession thereof was never handed over as required by law to the respondent No. 3 Nagpur Improvement Trust and it remained with the petitioners and. therefore, they were entitled to deal with the suit lands since the same belonged to them. We. therefore, do not find any substance in the contention raised by the learned Counsel for the respondents.

In the result, we make the following order:

ORDER

Writ petition No. 4571/2011 is allowed. Rule is made absolute in terms of prayer clauses (1), (2) and (3) of the writ petition. No order as to costs.