Bombay High Court
Dr. Ashish S/O Dr. Rajkumar Bhiwapurkar vs State Of Maharashtra Through Principal ... on 21 January, 2016
Author: A.S.Chandurkar
Bench: Vasanti A. Naik, A.S.Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3492 OF 2015
PETITIONER :- Dr.Ashish S/o Dr. Rajkumar Bhiwapurkar,
age: 42 yrs., Occ: Doctor, R/o Flat No.2,
Dhanvantari Building No.2, J.J.Hospital
Campus, Byculla, Mumbai - 400008.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through Principal
ig Secretary, Department of Urban
Development and ULC, Mantralaya,
Mumbai-400 032.
2. Collector, Nagpur, Collectorate, Civil Lines,
Nagpur-440 001.
3. Additional Collector and Competent
Authority, ULC Collectorate, Civil Lines,
Nagpur-440 001.
4. Tahsildar, Nagpur City, Collectorate, Civil
Lines, Nagpur-440 001.
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Mr. S.M.Puranik, counsel for the petitioner.
Mr. A. M. Joshi, Asstt.Govt. Pleader for the respondents.
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CORAM : SMT. VASANTI A. NAIK &
A.S.CHANDURKAR, JJ.
DATED : 21.01.2016 O R A L J U D G M E N T (Per A.S.Chandurkar, J.) Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
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2. The petitioner has challenged notification dated 01/11/2007 published under Section 10 (3) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as "said Act") as well as notice dated 07/11/2007 under Section 10 (5) of the said Act.
3. It is the case of the petitioner that in an enquiry conducted under the said Act, land admeasuring 286.49 sq.mtrs. was declared as surplus vacant land. Notification under Section 10(3) of the said Act was issued on 01/11/2007 and possession of the same was sought to be taken on 07/11/2007.
4. It is submitted by Shri S.M.Puranik, learned counsel for the petitioner that the action of taking possession of the land in question under provisions of Section 10(5) of the said Act is contrary to the provisions of said said Act inasmuch as no time was fixed for taking possession. A period of thirty days was required to be given to the petitioner to deliver possession under provisions of Section 10(5) of the said Act but the same was not so given. Similarly, there is no document on record to indicate that the possession was actually taken from the petitioner.
5. Shri A. M. Joshi, learned Assistant Government Pleader for the respondents, submitted that the impugned action has been taken under provisions of the said Act by following the due process. It is ::: Uploaded on - 25/01/2016 ::: Downloaded on - 31/07/2016 01:52:14 ::: 3/4 2101wp3492.15-Judgment submitted that the land having vested in the Government, the petitioner was not entitled for any relief whatsoever inasmuch as its possession was taken on 07/11/2007.
6. Having heard the respective counsel and having perused the documents filed on record, it can be seen that the notification under Section 10(5) of the said Act was issued without mentioning the date for taking possession. In fact, the possession has been sought to be taken on the same day.
7. A similar issue was considered in Writ Petition No.545 of 2011 (Anand s/o Kawadu Chokhandre and one another v. State of Maharashtra and others) and by judgment dated 28/02/2012, it was held by the Division Bench that a period of thirty days is required to be given while serving notice under Section 10(5) of the said Act. This period of thirty days cannot be curtailed. It is also to be noticed that when the Urban Land (Ceiling & Regulation) Repeal Act came into force on 29/11/2007, various notices under Section 10(5) of the said Act came to be issued shortly before the said date. Considering the fact that the notice under section 10(5) of the said Act does not satisfy the requirements of aforesaid provision, the impugned action is liable to be set aside.
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8. In view of aforesaid, the writ petition is allowed. The notice dated 07/11/2007 stands quashed and set aside. It is declared that the proceedings in ULC Case No.724 of 1976 insofar as it pertains to the petitioner stand abated in view of Section 4 of the Urban Land (Ceiling & Regulation) Repeal Act, 1999. The respondent No.4 shall restore the name of petitioner as owner and occupier of the land in question.
9. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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