Dismissed

Nagpur Housing and Area Development Board, through Its Chief Officer v. Shri Narayan Baburao Bobde, through P.O.A. Shri Kalmesh Chandrashekhar Dadhe and 3 Other

Bombay HC21 Dec 2011MCA/954/2011

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a review petition challenging an order that rejected a Board's claim to surplus land. The Court held that since the State never took physical possession of the land prior to the repeal of the ULC Act in 2007, the land reverted to the owner and the State could not claim it, applying the Voltas Ltd. precedent.

What did the court decide?

Review petition dismissed at the stage of admission; applicant not entitled to claim possession.

Nagpur Housing and Area Development Board, through Its Chief… — Land Acquisition | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Misc. Civil Application No.954 of 2011 in Writ Petition No.5236 of 2009 (D)

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Nagpur Housing & Area Development Board through its Chief Officer, Civil Lines, Nagpur.

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APPLICANT.

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// versus //

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Shri Narayan Baburao Bobde and another.

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NON-APPLICANTS

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-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.H.N.Verma, Adv. for the applicant. Mr.C.V.Kale, Adv. for Respondent No. 1. Mr.D.P.Thakare, A.G.P. for Respondent Nos. 2 to 4.

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****************** Date of reserving the order : 13.12.2011. Date of pronouncement of the order : 21.12.2011.

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Coram : D. D. Sinha and A.P.Bhangale, JJ.

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ORAL ORDER :

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Heard Mr.H.N.Verma, Adv. for the applicant, Mr.C.V.Kale, Adv. for Respondent No. 1 and Mr.D.P.Thakare, Assistant Government Pleader for Respondent Nos. 2 to 4.

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Special Leave Petition was preferred by the review applicant (Nagpur Housing and Area Development Board, through its Chief Officer) against the judgment dt.17.12.2009 passed by this Court under Articles 226 and 227 of the Constitution of India. The grievance of the review petitioner in the Special Leave Petition was that the applicant is a statutory Board constituted under the Maharashtra Housing and Area Development Act, 1976. The land in question belonging to non-applicant no.1 was declared surplus by the competent Authority under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “ the ULC Act “). Out of the said land, some land was allotted to the applicant/Board by the State Government and therefore, legal rights were created in favour of the applicant in respect of the land

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allotted to the applicant and hence, the applicant/Board was a necessary party to the petition. However, the petitioner did not implead the applicant/Board as a party/respondent in Writ Petition No.5236 of 2009. Hence, the applicant/Board could not participate and defend its claim before this Court at the time of hearing of the said petition, which had taken place on 11.12.2009. The applicant, therefore, was denied reasonable opportunity of hearing and hence, the impugned judgment dt.17.12.2009 passed by this Court being in violation of principles of natural justice cannot be sustained in law.

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On 13.9.2010, the Special Leave Petitions were called for hearing. At that time, the Senior Counsel appearing for the Board sought leave of the Apex Court to withdraw 10-A application for permission to file Special Leave Petition, which was granted by the Apex Court with liberty to the present applicant/Board to approach the High Court for review of the judgment impugned in the Special Leave Petition. Hence, the Board has filed the present review petition.

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Counsel for the petitioner has submitted that, in U.L.C. Case No.2332/76 of mouza Chichbhuvan, the land bearing Survey

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Nos. 192, 194, 195, 196, 197, 198, 199, 231 and 240 admeasuring 28216.66 sq.mt. belonging to non-applicant no.1 came to be declared as surplus vacant land by the competent Authority under the ULC Act vide order dt.25.3.1983. The State of Maharashtra thereafter allotted 2478.66 sq.mt. land out of the afore-said total surplus land to the applicant/Board for providing housing accommodation. It is submitted that notification u/s.10 (3) of the ULC Act was issued. The Board has also deposited a sum of Rs.19,600/- for the purposes of carrying out measurement of the said land on 31.10.1989. It is further contended that notice dt.16.11.1989, u/s. 10(5) of the ULC Act came to be issued by the competent Authority for delivering possession of the land to the Tahsildar. Though the said notice was duly served on non-applicant no.1, he failed to hand over possession of the said land to the Tahsildar. Therefore, another notice u/s.10(5), dt.7.1.1991 came to be issued to non-applicant no.1. However, in spite of second notice u/s.10(5) of the ULC Act issued by the competent Authority to nonapplicant no.1, physical possession of the land in question, which was allotted to the applicant/Board was neither handed over by nonapplicant no.1 nor the Board or any other Authority could take possession thereof. Counsel for the applicant submitted that since the competent Authority had issued notices u/ss. 10(3) and 10(5) of

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the ULC Act, merely because possession of the land in question remained with non-applicant no.1 after 29.11.2007, that by itself could not render the order of allotment of the land made by the State Government in favour of the Board invalid nor the rights created in favour of the applicant in respect of the land in question, in view of the said allotment, would be diminished. Hence, the judgment impugned being unsustainable in law, needs to be quashed and set aside.

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Mr.D.P.Thakare, Assistant Government Pleader

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submitted that possession of the surplus land allotted to the applicant was with non-applicant no.1 on the date the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “ the Repeal Act “) came into force w.e.f. 29.11.2007 and continued to be with non-applicant no.1 till date. The Assistant Government Pleader has not disputed that the issue involved in the instant case is covered by the decision of this Court in Voltas Ltd. and another .vs. Additional Collector and Competent Authority, Thane and Ors. reported in 2008 (5) ALL MR 537.

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Mr.C.V.Kale, Adv. for non-applicant no.1 has contended that since possession of the land in question was with non-applicant

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no.1 on 29.11.2007 and continued to be with him till date, the State Government was not entitled to take the same in view of decision in the case of Voltas Ltd. and another (cited supra) and therefore, supported the impugned judgment passed by this Court.

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We have considered the contentions canvassed by the respective Counsel for the review applicant, respondent no.1 and the Assistant Government Pleader. Perused the decision of this Court in the case of Voltas Ltd. and another (cited supra) as well as the judgment of this Court delivered in Writ Petition No.682 of 2009 (Waman s/o. Sukhdeo Tabhane and Ors. vs. State and Ors.) on 2nd July, 2009.

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In the instant case, it is not in dispute that, in spite of issuance of notification u/ss. 10(3) and notice 10(5) of the ULC Act in respect of surplus land in question which was allotted to the applicant/Board, factual and physical possession was not taken over by the State either on or before 29.11.2007 when the ULC Act stood repealed or thereafter till date. In such circumstances, it is required to be considered as to whether the land in question continues to vest in the State Government merely on the basis of notification u/ss.10(3) of the ULC Act, though possession thereof is continued

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with the non-applicant till date.

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The law declared by this Court on the subject in the case of Voltas Ltd. and another (cited supra) is loud and clear. The observations made by this Court in para 14 of the said case squarely applies and concludes the controversy in issue. It reads thus :

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“14. In our opinion, one more aspect that is relevant and needs to be considered is the provision of clause (3) of the Urban Land (Ceiling and Regulation) Repeal Bill, 1998, which reads as under:

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“3. Savings :- The repeal of the principal Act shall not affect -

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(a) the vesting of any vacant land under section (3) of Section 10 with respect to which the competent authority has :-

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(I) by notice in writing under sub-section (5) of that section ordered any person to surrender or deliver possession of such land to the State Government or to any person duly authorised by the State Government in this behalf, or

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(ii) taken possession of such vacant land under sub-section (6) of that section, and the use of such land for the purposes of the principal Act has commenced.

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Provided that where such use for the purposes of

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the principal Act has not commenced, then the State Government shall restore such land to the person from whom it was taken over and the amount paid shall be liable to be refunded.

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Provided further that where such land was subject to any encumbrance before vesting absolutely in the State Government under sub-section (3) of that section, such land shall be restored with all the encumbrances from which it was freed under that sub-section as if no declaration had been made under that sub-section :

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Provided also that no such land shall be restored unless the amount paid has been refunded to the State Government;

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(b) any exemption granted by the State Government under sub-section (1) of Section 20.“

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Perusal of the above clause (3) of the Bill shows that it was intended to protect or save vesting of even those lands with the State Government in relation to which an order under sub-section (5) of Section 10 of the Principal Act has been made for delivery of possession as also those lands of which possession has been taken. But while enacting Repeal Act, the land in relation to which notice under sub-section (5) of Section 10 was given has been deleted. Comparison of Clause 3 of the Bill quoted above with the provisions sub-sections (3) and (4) of the Repeal Act which are also quoted above shows that it was the clear intention of the Legislature not to save vesting of the land in the State Government of which possession was not taken. One more aspect that is to be kept in mind, in our opinion, while interpreting the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 is that what is stated in the statement of objects

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and reasons of the Repeal Act. Paragraph 1 of the Statement of Objects and Reasons of the Repeal Act, in our opinion, is relevant which reads as under :-

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“ The Urban Land (Ceiling and Regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable social objective in mind. The said Act was passed pursuant to resolutions passed by the State Legislatures under clause (1) of article 252. Unfortunately, public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent clog on housing. “

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Perusal of the above referred paragraph from the Statement of Objects and Reasons of the Repeal Act shows that the Principal Act was required to be repealed because of the unanimous public opinion that not only the Principal Act has failed to activate what was expected of it but it has pushed up the land prices to unconscionable levels. In this background, therefore, if despite clear words used in the Repeal Act, it is held that the Government continues to hold title of those lands of which possession is not taken though after the Repeal Act came into force it ceases to have power to take possession of those lands, ceases to have power to decide the amount to be paid under the Principal Act, in our opinion, will defeat the very intention of the legislature in enacting the Repeal Act. In our opinion, therefore, it is clear from the provisions of the Repeal Act that

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neither the proceedings after the remand order made by the State Government can continue after 29.11.2007 nor can the State Government claim that the land of the petitioners which was subject matter of the notification under subsection (3) of Section 10 of the Principal Act, possession of which has not been taken by the State Government continues to vest in the State Government. “

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The law declared by this Court in the case of Voltas Ltd. and another (cited supra) clearly demonstrates that the land which was subject matter of notification issued under sub-section (3) of Section 10 of the Principal Act, possession of which has not been taken by the State Government on or before 29.11.2007, cannot continue to vest in the State Government on the basis of notification issued u/s.10(3) of the Principal Act nor the State can claim the same. In the instant case, it is not in dispute that possession of the surplus land is with non-applicant no.1 till date.

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The decision in the case of Voltas Ltd. and another is affirmed by the Supreme Court. Hence, the contention canvassed by the Counsel for the review applicant, in view of undisputed facts as well as in view of the law declared by this Court on the subject in the case of Voltas Ltd. and another cannot be sustained in law. The findings recorded in the impugned judgment by this Court are

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based on the law declared in the case of Voltas Ltd. and another and therefore, they are sustainable in law. In view of this legal position, the order of allotment of land in question made by State in favour of the applicant loses its efficacy and force and the applicant is not entitled to claim possession of the said land from nonapplicant no.1. Counsel for the applicant has not pointed out to this Court any other decision, provisions of Statute or law declared by this Court or the Apex Court on the subject. Therefore, the issue involved in the review petition is considered in the light of the decision of this Court rendered in the case of Voltas Ltd. and another, since it squarely applies to the facts of the present case and also concludes the issue.

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Hence, no case is made out for showing indulgence. The

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review petition is, therefore, dismissed at the stage of admission.

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JUDGE

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J UDGE

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jais

Nagpur Housing and Area Development Board, through Its Chief Officer v. Shri Narayan Baburao Bobde, through P.O.A. Shri Kalmesh Chandrashekhar Dadhe and 3 Other

Case brief

What is this about?

What did the court decide?

Nagpur Housing and Area Development Board, through Its Chief Officer v. Shri Narayan Baburao Bobde, through P.O.A. Shri Kalmesh Chandrashekhar Dadhe and 3 Other

Case brief

What is this about?

What did the court decide?

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