Allowed

M/S. Abhishek Construction, through Partner, Gururaj Rachayya Charantimath v. State of Maharashtra, through Urban Development Dept and Ors.

Bombay HC22 Jul 2013WP/3123/2013

Case brief

AI extract

What is this about?

The Court allowed a writ petition seeking deletion of a revenue entry declaring land as surplus. It held that since the Urban Land (Ceiling and Regulation) Act was repealed and the competent authority failed to take possession of the land, the proceedings abated, rendering the entry void.

What did the court decide?

Writ petition allowed; revenue entry declaring land as surplus deleted; no further directions necessary.

M/S. Abhishek Construction, through Partner, Gururaj… — Land Acquisition | Bombay HC (2013)

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WP. 3123-13

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VPH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION No. 3123 OF 2013

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M/s. Abhishek Construction ... Petitioner Vs. State of Maharashtra & Ors. ... Respondents

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Mr. S. M. Gorwadkar, for the Petitioner.

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Mr. V. S. Gokhale, AGP for Respondent Nos. 1 to 4.

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Mr. Subhash Dharmadhikar, Additional Collector and the Competent Authority, Pune.

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CORAM : V. M. KANADE & K. R. SHRIRAM, JJ. DATE : JULY 22, 2013

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P.C.

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Heard the learned counsel appearing on behalf of the Petitioner and the learned AGP appearing for Respondent Nos. 1 to 4. By this petition, which is filed under Article 226 of the Constitution of India, the Petitioner inter alia is seeking an appropriate writ, order and direction, directing the Respondents to delete the revenue entry which has been made in the record of rights, stating therein that the lands have been declared as a surplus land under the Urban Land (Ceiling and Regulation) Act, 1976 in respect of land Survey No. 84/1 at village Bhosari, district Pune.

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WP. 3123-13

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Brief facts which are relevant for the purpose of deciding this petition are as under:

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. Urban Land (Ceiling & Regulation) Act, 1976 came into force and thereafter proceedings were initiated by the Competent Authority under the provisions of the said Act in respect of the land admeasuring 5000 sq. meters from Survey No. 84/1 at village Bhosari, district Pune, which was purchased by the Petitioner on 20^th July, 2011. After the inquiry was made and returns were filed by the original land owners, finally, an order came came to be passed under the provisions of the said Act, declaring 10460 sq. meters of land from Survey No. 84/1 as surplus vacant land.

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It is case of the Petitioner that though the land has been declared surplus, at no point of time actual possession was taken by the Competent Authority, and consequently, upon repeal of the said Act on 29.11.2007, and adoption of the repeal by the State of Maharashtra in the year 2009, and a further notification issued on 1^st December 2007, stating therein that those lands where possession has not been taken, the proceedings in respect of such lands would be abated.

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Learned counsel appearing on behalf of the Petitioner submits that in the present case possession of the land was not taken though the land vested in the Competent Authority. Possession of the said land not being taken, entire proceedings would lapse, and

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WP. 3123-13

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therefore, entry made in the revenue record also will have to be quashed and set aside. In support of the said submission, learned counsel appearing for the Petitioner relied upon the recent judgment of the Apex Court in the case of – Vinayak Kashinath Shilkar, Appellant Vs. Dy. Collector & Competent Authority & Ors, Respondents [(2012) 4 Supreme Court Cases 718] .

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Learned AGP appearing for Respondent Nos. 1 to 4 has invited our attention to the affidavit-in-reply filed on behalf of Respondent Nos. 1 and 2. It is submitted that despite best efforts being taken by the concerned authority, according to the office of the Tahsildar, they could not find any record which would indicate that possession of the said land was taken on behalf of the Government.

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After having heard counsel for the parties at length and after going through the relevant notification issued by the Urban Development Department dated 1^st December 2007, it is abundantly clear that upon the repeal of the Central Act and adoption of the repeal by the Maharashtra State by the said notification, the proceedings under the Urban Land (Ceiling & Regulation) Act, would come to an end, if possession of the land has not been taken. The Apex Court in the case of Vinayak Kashinath Shilkar (supra) , after taking into consideration of provisions of section 2 of the Repeal Act (Central), and the notification issued by the State of Maharashtra, has held that in such cases where possession is not taken, the proceedings under the Act in relation to the subject property stood abated. The

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WP. 3123-13

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Apex Court in paragraph 9 and 10 has observed as under:

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“9. It is clear from the above provisions that where the possession of the vacant land has not been taken over by the State Government by any person duly authorised by the State Government in this behalf or by the Competent Authority, the proceedings under the Act would not survive. Mere vesting of the vacant land with the State Government by operation of law without actual possession is not sufficient for operation of Section 3(1)(a) of the Repeal Act.

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We are fortified in our view by a recent decision of this Court in Ritesh Tewari and another vs. State of Uttar Pradesh and others [(2010) SCC 677] . This Court in Retiesh Tewari (SCC p. 682, paras 14-15) considered the matter thus:

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“14. Shri Jayant Bhushan, learned Senior Counsel appearing for the appellants has submitted that as the State Government had not taken possession of the land in exercise of its powers under Section 10(6) of the 1976 Act, on coming of the 1999 Act into force, the proceedings stood abated and the respondents have no business to interfere with the peaceful possession and enjoyment of the property.

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We find full force in the submissions so made by

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WP. 3123-13

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Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the 1976 Act, stood abated automatically on coming of 1999 Act into force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust vs. State of U.P. (2000) 6SCC 325, Ghasitey Lal Sahu vs. Competent Authority (2004) 13 SCC 452, Mukarram Ali Khan vs. State of U.P. (2007) 11 SCC 90 and Sulochana Chandrakant Galande vs. Pune Municipal Transport (2010) 8 SCC 467.”

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It is, therefore, quite well settled from the judgment of the Apex Court in the case of - Vinayak Kashinath Shilkar (supra) , which has also taken into consideration the ratio of another judgment of the Apex Court in the case of - Ritesh Tewari and another vs. State of Uttar Pradesh and others [(2010) SCC 677], that when possession is not taken, mere vesting of the vacant land with the State Government by operation of law without actual possession is not sufficient for the operation of Section 3(1)(a) of the Repeal Act. Respondent Nos. 1 and 2 also in their affidavit-in-reply have in terms stated that no documents were found which would show that possession was taken by the Tahsildar or any other officer of the State Government. That being the position, the petition will have to be

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WP. 3123-13

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allowed. The writ petition is, accordingly, allowed in terms of prayer clauses (b), (c) and (d).

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It appears that by the earlier order dated 2^nd May, 2013 this Court (in paragraph 4) directed second Respondent to decide the application dated 19^th December 2012. In view of the order, which we have passed, no further directions are necessary, so far as said direction is concerned.

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A request is made by the learned AGP for recalling the order dated 24^th June, 2013, of imposition of costs, quantified at Rs. 5,000/- which was to be paid by the Officer, who was supposed to file affidavit-in-reply. In view of compliance of the said order on the next date, in our view, case is made out for recalling the earlier order of costs. The order of payment of costs is, therefore, recalled.

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Vinayak Halemath

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M/S. Abhishek Construction, through Partner, Gururaj Rachayya Charantimath v. State of Maharashtra, through Urban Development Dept and Ors.

Case brief

What is this about?

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M/S. Abhishek Construction, through Partner, Gururaj Rachayya Charantimath v. State of Maharashtra, through Urban Development Dept and Ors.

Case brief

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What did the court decide?

What the court decided

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