Bombay High Court
Dr. Asim Mitra S/O Ramendranath And ... vs The State Of Maharashtra, Through Its ... on 22 October, 2019
Author: R.K. Deshpande
Bench: R.K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.7170 OF 2016
AND
WRIT PETITION NO.4092 OF 2017
WRIT PETITION NO.7170 OF 2016
1. Dr. Prashant S/o Annasaheb Maturkar,
Aged about 51 years,
Occupation : Medical Practitioner,
Resident of 56, Asha Jyoti Apartments,
Plot No.A-2,
Surendranagar, Nagpur.
2. Mrs. Parinita W/o Prashant Maturkar,
Aged about 48 years,
Occupation : Household,
Resident of 56, Asha-Jyoti Apartments,
Plot No.A-2,
Surendranagar, Nagpur.
3. Jaikrishna P. Futane,
Aged about Major.
4. Mrs. Vaibhavi V. Lambe,
Aged about Major.
5. Mrs. Alka Ashok Chobe,
Aged about Major.
6. Rishikesh G. Soman,
Aged about Major.
7. Anawar Ahmed,
Aged about Major.
8. Mrs. Ashama Ahmed,
Aged about Major.
9. Vasant S/o Balaji Urkande,
Aged about Major.
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10. Smt. Vimaltai W/o Pandharinath Khangar,
Aged about Major.
11. Mrs. Kalpana Subhashrao Ghugal,
Aged about Major.
12. Girish Wadatkar,
Aged about Major.
13. R.R. Ambulkar,
Aged about Major.
14. C.R. Ambulkar,
Aged about Major.
15. M.K. Sinha,
Aged about Major.
16. Mrs. Sudha W/o Girish Wadatkar,
Aged about Major.
17. T.T. Thakre,
Aged about Major.
18. R.N. Wasankar,
Aged about Major.
19. S.V. Pandhare,
Aged about Major.
20. Mrs. Rasika W/o Ravindra Pandhare,
Aged about Major.
21. Rajesh G. Soman,
Aged about Major.
22. Sunil V. Bhiwgade,
Aged about Major.
23. Marotrao S/o Janbaji Nigutkar,
Aged about Major.
24. Shailesh S/o Ramchandra Sathe,
Aged about Major.
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25. Gopalrao Koratana,
Aged about Major.
26. Shalaka M. Sinha,
Aged about Major.
Petitioner nos.3 to 26 are
C/o Dr. Prashant S/o Annasaheb Maturkar,
Aged about 51 years,
Occupation : Medical Practitioner,
R/o 56, Asha-Jyoti Apartments,
Plot No.A-2, Surendra Nagar,
Nagpur.
27. Dr. Manohar S/o Bhauraoji Bhusaji,
Aged about 67 years,
R/o Plot No.13, Swalambi Nagar,
Ring Road, Nagpur.
28. Dr. Harishchandra S/o Tukaram Kangale,
Aged about Major.
29. Sau. Bharti W/o Harishchandra Kangale,
Aged about Major.
30. Sau. Swati W/o Vasudev Chaubitkar,
Aged about Major.
31. Sau. Madhuri Wanjari,
Aged about Major.
32. Sau. Anita W/o Kishor Dikshit,
Aged about Major.
33. Sau. Sushma W/o Nitin Patil,
Aged about Major.
34. Shri Shrikand S/o Manohar Bhandarkar,
Aged about Major.
35. Sau. Babita W/o Ranjan Tripathi,
Aged about Major.
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36. Shri Arvind Krushnarao Arvikar,
Aged about Major.
[Respondent Nos.27 to 36 are added
as per the Hon'ble Court's order
dated 10-10-2019 passed in
Civil Application No.2264 of 2019
filed in Writ Petition No.7170 of 2016] ... Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-400 032.
2. The Deputy Collector and
the Competent Authority under
the Urban Land Ceiling Act,
Collectorate,
Civil Lines,
Nagpur.
3. Shri Gurudatta Co-operative Housing
Society Limited, Nagpur,
A Registered Society,
having Registration No.
NGP/HSG/233/1966,
Through its Secretary,
Having its Registered office
At Near Adarsha Mangal Karyalaya,
Kailesh Nagar,
Nagpur. ... Respondents
Shri S.P. Bhandarkar, Advocate for Petitioners.
Shri N.S. Rao, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri Ritesh N. Badhe, Advocate for Intervenors.
AND
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WRIT PETITION NO.4092 OF 2017
1. Dr. Asim Mitra S/o Ramendranath,
Aged about 65 years,
Occupation : Service,
Resident of A-15,
Manav Sewa Nagar,
Seminary Hill, Nagpur-6.
2. Mrs. Aarti S. Mitra,
Aged about 52 years.
3. Mr. Sunil S. Deoupadhye,
Aged about 49 years.
4. Mr. Kamlesh Kumar Mall,
Aged about 51 years.
5. Mr. Sanjeev Kumar Chowdhary,
Aged about 55 years.
6. Mr. Anil Kumar Sharma,
Aged about 50 years.
7. Mr. Santanu Mitra S/o Bishnu pada,
Aged about 58 years.
8. Mr. Nimai Bandopadhaya,
Aged about 49 years.
9. Mr. Dilip N. Kanhere,
Aged about 49 years.
10. Mr. Devidas Kumbhare,
Aged about 53 years.
11. Mr. Vijay S/o Dinkar Khamankar,
Aged about 56 years.
12. Mr. Vijay Porchattiwar,
Aged about 49 years.
13. Mr. Hari Prakash Triparthi,
Aged about 55 years.
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14. Mrs. Ashma Ahmed,
Aged about 50 years.
15. Mr. Anwar Ahmed,
Aged about 51 years.
16. Mr. Ganesh P. Rewatkar,
Aged about 52 years.
17. Mr. Chandrashekhar Pipalwa,
Aged about 55 years.
18. Mr. Jayant P. Pande,
Aged about 49 years.
Petitioner Nos.2 to 18 are C/o
Dr. Ashim Mitra S/o Ramendranath,
Aged about 65 years,
Occupation : Service Practitioner,
Resident of A-15, Manav Sewa Nagar,
Seminary Hill, Nagpur-6. ... Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-400 032.
2. The Deputy Collector and
the Competent Authority
under the Urban Land Ceiling Act,
Collectorate,
Civil Lines, Nagpur.
3. Shri Gurudatta Co-operative Housing
Society Limited, Nagpur,
A registered society having
Registration No.NGP/HSG/233/1966,
Through its Secretary,
having its Registered Office
at Near Adarsha Mangal Karyalaya,
Kailash Nagar, Nagpur.
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4. Pravin Bakre,
Aged about Major,
Occupation ; Legal Practitioner,
Resident of 40, Gajanan Nagar,
Nagpur-440 015. ... Respondents
Shri S.P. Bhandarkar, Advocate for Petitioners.
Shri N.S. Rao, Assistant Government Pleader for Respondent Nos.1
and 2.
CORAM : R.K. DESHPANDE & VINAY JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 16th October, 2019
DATE OF PRONOUNCING THE JUDGMENT : 22nd October, 2019
JUDGMENT (PER R.K. DESHPANDE, J.) :
1. Both these petitions are being decided by this common judgment. Though Writ Petition No.4092 of 2017 was admitted on 10-6-2019, the another Writ Petition No.7170 of 2016 is only on notice before admission, which was issued on 3-2-2017. Hence, Rule returnable forthwith in Writ Petition No.7170 of 2016. Both these petitions involve common question and relate to the same property. Hence, the same are finally heard by consent of the learned counsels appearing for the parties at length and are being disposed of.
2. These petitions challenge the order dated 22-6-2006 passed under sub-section (2) of Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 [for short, "the said Act"] by the Competent ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 8 wp7170 of 16 & 4092 of 17.odt Authority and the Additional Collector, Nagpur, cancelling the exemption granted on 22-2-1996 in exercise of his power conferred by clause (a) of sub-section (1) of Section 20 of the said Act in respect of the surplus land admeasuring 38,037.165 square meters from Survey No.178/4, 180/1, 298/2, 303, 304/3 and 307, situated at Mouza Chichbhuvan, Nagpur, and taking the said land back as vested in the State Government. The petitions also challenge the notifications dated 17-7-2006 issued under sub-section (1) of Section 10 and dated 6-9-2006 issued under sub-section (3) of Section 10 of the said Act. The declaration is claimed that the petitioners are the lawful owners of the respective plots as per the Scheme sanctioned on 22-2-1996 and the prayer made is to restrain the respondents from disturbing the possession of the petitioners over the property in question.
3. One Baburao Bobde was the owner of the lands Survey Nos.178/4, 180/1, 298/2, 303, 304/3 and 307, situated at Mouza Chichbhuvan, Nagpur. The Urban Land Ceiling Act, 1976 came into force on 17-2-1976. Consequently, the original owner filed a return, on 28-9-1976, as required by sub-section (1) of Section 6 of the said Act, declaring the land admeasuring 38,037.165 square meters as the excess land in ULC Case No.2347 of 1976. As per the order dated 25-7-1985 passed under sub-section (4) of Section 8 of the said ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 9 wp7170 of 16 & 4092 of 17.odt Act, the land admeasuring 70,392.74 was declared as surplus. A preliminary notification was issued under sub-section (1) of Section 10 on 2-10-1986, declaring 70,392.74 square meters of land out of these survey numbers as surplus. The final notification under sub-section (3) of Section 10 of the said Act was issued on 2-11-1989.
4. The original owner Baburao Bobde filed an application for grant of exemption under clause (a) of sub-section (1) of Section 20 of the said Act from the applicability of the provisions of Chapter III of the said Act. The State Government passed an order on 21-11-1995 under Section 34 of the said Act, cancelling notification issued under sub-section (3) of Section 10 of the said Act. On 22-2-1996, the State Government granted such exemption under Talegaon-Dabhade Scheme, subject to certain terms and conditions prescribed therein in accordance with the Government Resolution Nos.ULC-1086/2795/D-XIII dated 22-8-1988, and ULC-1091/5(3977)/ D-XIII dated 15-1-1992. The Schedule appended to this order indicated the total area of holdings as 71,892.74 square meters, the exemption sought for was shown in respect of 60,477.74 square meters of land, and the land to be handed over to the Government with frontage and access roads before commencement of the Scheme was shown as 27,038.87 square meters.
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5. On 3-10-1997, the Additional Collector, Nagpur, granted permission in exercise of its power under Section 44 of the Maharashtra Land Revenue Code, 1966 to convert the lands in question having the area of 24,108.975 square meters (under Scheme) from agricultural to non-agricultural use, i.e. for residential use or plottable area, on certain terms and conditions stipulated therein. The original owner executed two separate registered sale-deeds in question for the lands in question on 13-10-1998 and 9-7-1999, in favour of one Shri Gurudatta Co-operative Housing Society, Nagpur.
6. On 23-2-2001, the Competent Authority and the Additional Collector, Nagpur, passed revised order under sub-section (4) of Section 8 of the said Act issuing Corrigendum to the order dated 22-2-1996 granting exemption. Accordingly, on 18-12-2003, the Corrigendum was issued reducing the total area of holding of Baburao from 71,892.74 square meters to 50,474.33 square meters and the area of land to be handed over to the Government from 27,038.87 square meters to 12,437.165 square meters.
7. By the impugned order dated 22-6-2006 passed under sub-section (2) of Section 20 of the said Act, the exemption granted on 22-2-1996 was withdrawn by the competent authority and it was ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 11 wp7170 of 16 & 4092 of 17.odt directed that the land admeasuring 38,037.165 square meters declared as surplus be taken back. The reason for issuance of this order, as it appears, is that the map of Survey Nos.298/2, 303 and 304/3 was not submitted to the Nagpur Municipal Corporation for sanction and, therefore, it appears that the land owners are not interested in the project and they have deliberately violated the terms and conditions laid down under the order dated 22-2-1996. It holds that in exercise of the power conferred by an order dated 17-7-2000, the Scheme sanctioned in respect of the area of 38,037.165 out of Survey Nos.178/4, 180/1, 298/2, 303, 304/3 and 307 is cancelled. It directs that the steps in terms of sub-section (4) of Section 8 of the said Act be taken in the matter.
8. On 17-7-2006 and 27-7-2006, again the notification under sub-section (1) of Section 10 of the said Act was issued declaring the area of 38,037.165 square meters of the land in question as surplus. The final notification under sub-section (3) of Section 10 was published on 6-9-2006 and 14-9-2006. The notification under sub-section (5) of Section 10 was issued on 17-10-2006. The respondents claim to have taken possession of the land Survey Nos.178/4, 180/4, 298/2, 303, 304/3 and 307 admeasuring 38,037.165 square meters from the heirs of the original owner on ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 12 wp7170 of 16 & 4092 of 17.odt 7-11-2006. These three notifications are also impugned in these petitions.
9. There are 26 petitioners in Writ Petition No.7170 of 2016 and 18 petitioners in Writ Petition No.4092 of 2017. Civil Application No.2262 of 2019 filed by 10 applications for permission to join as petitioners in Writ Petition No.7170 of 2016. The application was allowed. The applicants are permitted to be joined as petitioners in Writ Petition No.7170 of 2016 and hence there are now 36 petitioners in both these petitions. These petitioners claim to be in possession of their respective plots of different measurements for Survey Nos.178/4, 180/1 and 303 under the registered sale-deeds executed in their favour from 16-5-1998 to 4-3-2008 by Shri Gurudatta Co-operative Housing Society Limited, Nagpur.
10. On 14-1-2019, we passed an order in Writ Petition No.4092 of 2017 as under :
" The land in possession of the petitioners was granted exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. The petitioners claim to be the purchasers of this land from the original owner prior to 22-6-2006, when the exemption was cancelled. The cancellation of exemption was the subject-matter of ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 13 wp7170 of 16 & 4092 of 17.odt challenge in Writ Petition No.3623 of 2009 at the instance of some of the petitioners before Court. The matter was admitted and finally disposed of on 20-10-2016, granting liberty to the petitioners to file a separate petition. The Court, however, made it clear that the objection regarding maintainability of this petition and even the original writ petition cannot be construed as having been accepted by this Court. Resultantly, the question of maintainability of the original Writ Petition No.3623 of 2009 so also the present writ petition remains open to be adjudicated.
On merits, it is urged that in spite of knowing fully well that the petitioners are the purchasers of the land in question prior to 22-6-2006, they were not noticed and the notice was given to the erstwhile owner only, who died on 11-6-2006. It is urged that the petitioners having stepped in the shoes of the original owner and the transfer of title in their favour being to the notice of the competent authority, the cancellation could not have been without hearing the petitioners and there is violation of such requirement contained in Section 20(2) of the Urban Land Ceiling Act.
In view of the aforesaid factual background, the questions to be considered are in respect of - (i) maintainability of the original writ petition, and (ii) rights of the petitioners.
Issue notice for final disposal of the matter, to the respondents, returnable on 11-3-2019.::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 14
wp7170 of 16 & 4092 of 17.odt Shri N.H. Joshi, the learned Assistant Government Pleader, waives service of notice for the respondent Nos.1 and 2."
11. Thereafter, we passed another order on 22-4-2019 and the same is reproduced below :
" We have heard this matter for quite some time. The order of cancellation of exemption passed under Section 20(2) of the Urban Land Ceiling Act, 1976 on 22/06/2006 does not record any reason. We also do not find such reasons incorporating in the affidavit filed by the respondents. We thought of setting aside this order and remand of the matter back to the authority concerned for fresh decision in accordance with law, but then the difficulty is that the said Act was repealed in the State of Maharashtra with effect from 29/11/2007. Hence, the another question is whether there can be a remand of the matter for fresh decision under Section 20(2) of the repealed Act.
The learned Counsel appearing for the parties are not ready with matter. We, therefore, post this matter after vacations in the second week of June, 2019 for final disposal.
In the meantime, the respondents are expected to file their additional reply, if any, and place on record the citations."::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 15
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12. In response to the aforesaid orders, it is the stand taken in Para 14 of the affidavit dated 22-3-2019 filed by the Collector, which is reproduced below :
"14. It is pertinent to point out here that the competent authority issued a Notification under Section 10(5) of the Act of 1976 dated 17.10.2006 in respect of the aforesaid land in question by which it was directed to the land owner that the possession in respect of 38037 sq. mtrs land should be delivered to the State Government through the Tahsildar Nagpur City who has been authorized to take over the possession. The Notice further speaks about the date of taking over the possession was fixed on 20.10.2006. The copy of the Notice dated 17.10.2006 is annexed herewith and marked as Annexure R-3. The answering respondent further submits that the possession of the Survey No.178/4, 180/4, 298/2, 303, 304/3, 307 admeasuring 38037.165 sq. mtrs has been taken over and handed over to the State Government. The possession was duly taken from the legal heirs of Shri Baburao Chintaman Bobade (Dead). The possession notice mentions the name of the legal heirs. The answering respondent submits that said possession was taken on 7.11.2006 and from the said date the State Government is in possession of the said vacant land. The copy of the possession receipt is annexed herewith and marked as Annexure R-4."::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 16
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13. In the same affidavit, the Collector has taken the following stand in Para 9 :
"9. It is the contention of the petitioner that the respondent No.4 posing himself as Power of Attorney Holder of Shri Baburao Chintaman Bobade entered into a sale deed in favour of the respondent No.3-Society. The respondent No.3 Society then simultaneously executed the sale deeds in favour of the petitioners on different dates. It is further contended that the petitioners have constructed their houses at their respective plots and are residing therein. They are also paying the Municipality taxes and the electricity bills and therefore they are the owner of the said plots. The answering respondent would submit that the petitioners entered into agreement and purchased the plots from the respondent No.3-Society."
14. In the affidavit dated 14-8-2019 filed by the Collector, it is the stand taken in Paras 3 and 5 as under :
"3. The authority after withdrawing the exemption granted to the land owner Shri. Bobade as per Section 20 of the Act of 1976 issued a notification under Section 10(1), 10(3) and 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. The legal heirs of the land owner Shri Baburao Bobade preferred the writ petition bearing No.1806/2016 in ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 17 wp7170 of 16 & 4092 of 17.odt which they have claimed that though the notification is issued by the State Government under Section 10(3) and also notice under Section 10(5) of the Act, the respondents have not secured the possession of the excess land from the petitioners. Therefore, in pursuance to Section 3 of the Urban Land (Ceiling and Regulation) Repealing Act, 1999 proceedings have abetted."
"5. ... It is submitted that the State Government has no right to interfere with the land in question as the proceeding under the Urban Land (Ceiling and Regulation) Act have abated.
The petitioners have no locus to challenge the same. At the most, the petitioners can be relegated to redress their grievance by filing appropriate proceedings before the Civil Court."
15. It is the stand taken in the affidavit dated 13-8-2018 filed in Writ Petition No.7170 of 2016 that the progress report of the Scheme was called from the owner on 1-8-2003, 28-8-2003, 24-4-2006 and 18-5-2006, but the Scheme was not submitted for sanction, which is clear from the letter dated 22-2-2006 from the Nagpur Municipal Corporation. Therefore, a final notice was issued on 18-5-2006 calling upon the land owner to submit the Scheme to the Corporation for sanction and he was asked to remain present on 26-5-2006 in the office of the Municipal Corporation, but there was no response. ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 18
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16. Before proceeding further in the matter, we would like to clear a doubt, which arose in our mind, though this is not the objection raised by any of the respondents. The impugned order was passed in the present petitions on 22-6-2006 and thereafter the steps were taken to issue the notifications under sub-sections (1), (3) and (5) of Section 10 of the said Act and these petitions were filed in the year 2016 and 2017. We, therefore, tried to find out the justification for the delay in challenging the order. We find that in the year 2009 itself, Writ Petition No.3623 of 2009 was filed before this Court by the petitioners. It was admitted on 22-9-2011 and the interim relief of status quo granted earlier on 15-12-2010 was continued till the disposal of the said writ petition by the Division Bench on 20-10- 2016. We find that this Court did not permit the petitioners to amend the petition bringing on record certain subsequent events, but disposed of the same with liberty to file a fresh, keeping in view the question of maintainability of the writ petition on the ground of locus. The interim order passed by this Court was continued. There were several intervening events also and we are satisfied that the present petitions cannot be dismissed on the ground of delay and laches.
17. In our order dated 22-4-2019, we expressed that the matter needs to be remanded back to the concerned authority for fresh ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 19 wp7170 of 16 & 4092 of 17.odt decision in accordance with law, but then the difficulty is that the said Act was repealed in the State of Maharashtra with effect from 29-11-2007. Hence, the question is whether there can be remand of the matter for fresh decision under Section 20(2) of the Repeal Act.
18. We now propose to decide the aforesaid issue. The Full Bench of this Court in the case of Maharashtra Chamber of Housing Industry, Mumbai and others v. State of Maharashtra and another, reported in 2014(6) Mh.L.J. 829, followed by the Division Bench decision in the case of Bombay Wire Ropes Limited and another v. State of Maharashtra and others, reported in 2019(5) Mh.L.J. 93, has held that not only the exemption order under Section 20(1), and the conditions and actions thereunder, are saved but even the power of the State Government under sub-section (2) of Section 20 of withdrawing the exemption is also saved by virtue of applicability of Section 6 of the General Clauses Act, 1897. The Full Bench has held that apart from the power to withdraw the exemption which also survives the repeal of the Principal Act, all ancillary and incidental powers to the main power to impose conditions are also saved and survive the repeal. In Clauses (e), (f) and (g) of Para 135, the Full Bench has held as under :
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wp7170 of 16 & 4092 of 17.odt "(e) We also clarify that though our answers to Questions 3 and 4 would be as aforesaid, still whether any of these powers could be exercised and to what extent are all matters which must be decided in the facts and circumstances of each case. In the event the State desires to take any action in terms of section 20(2) of the Principal Act it would be open for the aggrieved parties to urge that such an action is not permissible in the given facts and circumstances particularly because of enormous and unexplained delay, jthe parties having altered their position to their detriment, the proceedings as also the orders in that behalf are grossly unfair, unjust, arbitrary, high handed, mala fide and violative of the principles of natural justice of the Constitutional mandate enshrined in Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India. These and other contentions can always be raised and irrespective of our conclusions, individual orders can always be challenged and action thereunder impugned in appropriate legal proceedings including under Article 226 of the Constitution of India."
"(f) The aggrieved parties can also urge that while seeking to enforce the terms and conditions of the exemption order or recalling or withdrawing the exemption itself the competent authorities/State has not adhered to the provisions of law applicable for such exercise. Meaning thereby there has to be a specific order in that behalf and mere issuance of administrative instructions or circulars will not suffice. All such objections can as well be raised and in individual cases."::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 21
wp7170 of 16 & 4092 of 17.odt "(g) By our answers to Questions 1 to 4 above, we should not be taken to have held that there is a mandate under the Repeal Act to withdraw the order of exemption passed under section 20(1) of the Principal Act and the Government is obliged to withdraw it in the event the said order or any terms or conditions thereof have not been satisfied rather violated or breached. In the light of the wording of section 20(2) of the Principal Act the State is competent to withdrawn, but only after giving a reasonable opportunity to the persons concerned for making representationa gainst the proposed withdrawal. The Government is obliged to pass an order withdrawing any exemption and needless to clarify that in the event such an order is passed it can be impugned and challenged by the aggrieved parties in appropriate proceedings on the grounds that it is unreasoned and/or in the given facts and circumstances such an order could not have been passed or need not be passed and the Government could have granted time to comply with the terms and conditions or that the terms and conditions relying on which and for breach of which the exemption order is withdrawn are not violated or breached, they were not mandatory and have been substantially complied with or were incapable of being complied with because of several factors, obstacles and hurdles each of which canno be enumerated or termed as exhaustive in any manner. Therefore, if the Government is not mandated to withdraw the exemption order, but can ensure compliance of the terms and conditions without withdrawal of the exemption order or without recourse to section 20(2) of the ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 22 wp7170 of 16 & 4092 of 17.odt Principal Act, then, needless to clarify that all liabilities, obligations and equally the remedies available to the parties are unaffected by repeal and can be resorted to in the afore stated events."
19. In view of the aforesaid law laid down by the Full Bench of this Court, we are of the view that even the validity of the order withdrawing the exemption passed under sub-section (2) of Section 20 of the said Act can also be judged and if the challenge succeeds, all the ancillary and incidental reliefs can also be granted to attain the ends of justice. The repeal of the said Act will not prohibit this Court to judge the validity of the order of withdrawal of exemption. We are, therefore, of the view that though the said Act was repealed on 29-11-2007, the petitioners would be entitled to get all the reliefs, as can be granted in the facts and circumstances of the case, if ultimately the order withdrawing the exemption is declared to be non est.
20. In Writ Petition No.1806 of 2016 filed by Smt. Kamla wd/o Sudam Bobde and Shri Rameshwar s/o Sudam Bobde, claiming to be the legal heirs of Shri Baburao Bobde, a declaration was sought that the proceedings under the said Act in respect of the surplus land, admeasuring 0.3 HR out of Survey No.307, and 0.18 HR out of Survey ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 23 wp7170 of 16 & 4092 of 17.odt No.298/2, P.H. No.43 of Mouza Chinchbhuvan, belonging to the petitioners, stood abated in view of the provision of Section 3 of the said Act and the Repeal Act (We have verified from the record of Writ Petition No.1806 of 2016). This petition was allowed on 10-8-2016, granting a declaration that the proceedings in respect of the land of the petitioners under the provisions of the said Act have abated in view of the provision of Section 3 of the Repeal Act. Consequently, the respondents were also directed specifically to delete the name of the State Government from the 7/12 extracts at the earliest and to record the appropriate entries.
21. In Para 5 of the decision of this Court in Writ Petition No.1806 of 2016, it was held as under :
"5. On hearing the learned counsel for the parties and on a perusal of the affidavit-in-reply, filed on behalf of the respondent No.1, it appears that the declaration as sought by the petitioners needs to be granted. There is nothing on record to show that the notice under Section 10(5) of the Act of 1976 was indeed served on the petitioners, who are the legal heirs of the original landholder. A reference is made only to the issuance of the notice to the petitioners under Section 10(5) of the Act of 1976 in the reply, but there is no assertion in the reply that the notice under Section 10(5) was indeed served on the petitioners. Also, the clear averments in ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 24 wp7170 of 16 & 4092 of 17.odt the writ petition that the possession of the property is still with the petitioners and the respondents have not secured the same, are not denied in the affidavit-in-reply, filed on behalf of the respondent No.1. It is thus, apparent that though the Notification under Section 10(3) of the Act was issued, the notice under Section 10(5) of the Act of 1976 was not served on the petitioners and the possession of the surplus land was never secured by the respondents. Since the possession of the surplus land was not secured by the respondents, the proceedings under the Act of 1976 have abated, in view of the provisions of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. A declaration, as sought by the petitioners needs to be granted, in the circumstances of the case."
We put a specific question to the learned Assistant Government Pleader and also to the Collector, Nagpur, the Competent Authority, who was personally present before us, as to whether in view of the aforesaid decision of this Court, the order dated 22-6-2006 for withdrawal of exemption and the notification under sub-section (3) of Section 10 of the said Act stood set aside in respect of the surplus land, admeasuring 38,037.165 sqauare meters from all the Survey Nos.178/4, 180/1, 298/2, 303, 304/3 and 307, situated at Mouza Chinchbhuvan, Nagpur, though the petition was restricted only to parts of Survey Nos.298/2 and 307. We also put a specific question to them as to whether there can be a partial ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 25 wp7170 of 16 & 4092 of 17.odt withdrawal of exemption under sub-section (2) of Section 20 of the said Act.
22. Our attention is invited to Paras 3 and 5 of the affidavit dated 14-8-2019, which we have already reproduced, taking the stand that by virtue of Section 3 of the Repeal Act, the proceedings under the said Act have abated and the State Government has no right to interfere with the land in question. Our attention is also invited to Paras 5 and 6 of the affidavit dated 15-10-2019, which are reproduced below :
"5. It is specifically submitted that so far as Survey Nos.178/4 and 180/1 it also featured in the notification under section 10(3) issued by the Competent Authority after the exemption was withdrawn. The legal heirs of the original owner in Writ Petition no.1806/2016 has only mentioned regarding two survey numbers i.e. 298/2 and
307."
"6. As the notification under sub-section 3 of section 10 of ULC Act is no more in existence therefore, it is submitted that this respondent has no right to interfere with the land in question as the proceeding under the Urban Land (Ceiling and Regulation) Act have abated."::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 26
wp7170 of 16 & 4092 of 17.odt According to the State Government, there cannot be withdrawal of exemption in part under sub-section (2) of Section 20 and, therefore, the notification under sub-section (3) of Section 10 of the said Act, having been quashed and set aside on 10-8-2016 in Writ Petition No.1806 of 2016. the order of withdrawal of exemption passed on 22-6-2006 no longer survives. We, therefore, proceed on the basis of such stand.
23. It is the stand taken by the respondent, the Competent Authority, in the affidavit dated 8-8-2019, sworn-in by the Collector, Nagpur, that as per the decision of this Court, the names of the legal heirs of Shri Baburao Bobde are mutated in the revenue record in respect of Survey Nos.198/2, 303, 304/3 and 307 and accordingly the copies of the 7/12 extracts are filed on record. It is the further stand taken that so far as the other survey numbers, namely 178/2 and 180/1, are concerned, no application is moved by the owners and, therefore, the same is in consideration. It is the further stand taken that the same shall be mutated in the names of the legal heirs of the original owner Baburao Bobde. We, therefore, consider this stand of the State Government.
24. We do not find any justification in respect of the stand taken by the Competent Authority and the State Government that the lands ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 27 wp7170 of 16 & 4092 of 17.odt Survey Nos.178/4, 180/1, 298/2, 303, 304/3 and 307 of Mouza Chinchbhuvan, Nagpur, are to be mutated in the names of the legal heirs of the original owner, except to the extent of the land admeasuring 0.3 HR our of Survey No.303 and 0.18 HR out of Survey No.298/2, which were the subject-matter of Writ Petition No.1806 of 2016, particularly when the stand of the State Government is very clear that it has no right to interfere with the lands in question, as the proceedings under the said Act have abated.
25. We are finally hearing these matters daily for some time with effect from 2-8-2019. In fact, the entire hearing is concluded and the Government was only required to file an affidavit, which is filed today, reiterating its stand that the Government has no right to interfere in the lands in question. The legal representatives of the original owner have appeard before this Court through Shri Ritesh Badhe, Advocate, who tendered us an application for intervention. According to the intervenors, the registered sale-deeds, said to have been executed in favour of the petitioners in both these petitions, are null and void, for the reason that the respondent No.4, who was the power of attorney holder of the original owner, was not authorized to sell or transfer the property in question either in favour of the respondent No.3- Shri Gurudatta Co-operative Housing Society ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 28 wp7170 of 16 & 4092 of 17.odt Limited, Nagpur, or in favour of the petitiioners, who have purchased it from the said Society.
26. The intervenors have admitted that they had filed Writ Petition No.2987 of 2013 before this Court challenging the notification dated 14-9-2006 issued under sub-section (3) of Section 10 along with the order dated 22-6-2006 passed under sub-section (2) of Section 20 of the said Act for withdrawal of exemption. The said petition was dismissed by this Court on 11-6-2013 and the SLP preferred against it, was also dismissed by the Apex Court. The said petition was in respect of the entire lands and the present petitioners were not parties to it. Both these matters, now being decided, are pending before this Court since 2016 and 2017, but the intervenors have chosen to appear before this Court only after the hearing of these petitions is concluded. In view of this, we do not find that the application for intervention is bona fide. The same is, therefore, dismissed.
27. From the communication dated 19-1-2009 by the Competent Authority to the State Government, the plottable area of 25,801.983 square meters consists of 176 plots. Plot Nos.1 to 65 having total area of 10,161.28 square meters out of Survey Nos.298/2, 303, 304/3 and 307 were sold prior to cancellation of the exemption on ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 29 wp7170 of 16 & 4092 of 17.odt 22-6-2006. Out of total surplus land of 38,037.165 square meters, the land admeasuring 23,303.33 square meters was sold. The area admeasuring 12,437.165 square meters was handed over to the State Government free of cost and free from all encumbrances on 14-3-2005. The area of 6,527.58 square meters was covered by road, the area of 3,804.27 square meters was kept open, and the area of 1,903.00 square meters was for public purpose.
28. There are 26 petitioners in Writ Petition No.7170 of 2016 and 18 petitioners in Writ Petition No.4092 of 2017. By virtue of order passed by this Court allowing Civil Application No.2262 of 2019, 10 applicants were added as petitioners in Writ Petition No.7170 of 2016. Thus, now there are 36 petitioners, who claim to have purchased the plots of different measurements in Survey Nos.178/4, 180/1 and 303 by the registered sale-deeds executed in their favour during 16-5-1998 to 4-3-2008 by the respondent No.3- Shri Gurudatta Co-operative Housing Limited, Nagpur. We do not want to enter into the controversy as to whether the sale-deeds executed in favour of all these petitioners are null and void for want of authority of the original owner, Late Baburao Bobde, and leave this question open to be agitated and decided at the instance of the rival parties. We are disposing of these petitions without any adjudication on merits by accepting the stand of the State Government that the notification ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 30 wp7170 of 16 & 4092 of 17.odt dated 6-9-2006 issued under sub-section (3) of Section 10 of the said Act does not survive and, therefore, the State Government no longer remains interested in the lands in question. The disposal of these petitions is neither going to affect the rights of the petitioners nor the rights of the intervenors. It is only a declaration of the position accepted by the State Government.
29. In view of above, both these petitions are disposed of by an order as under :
(1) The challenge to the order dated 22-6-2006 passed under sub-section (2) of Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 along with the notification dated 17-7-2006 issued under sub-section (1) of Section 10, the notification dated 6-9-2006 issued under sub-section (3) of Section 10 and the notification dated 17-10-2006 issued under sub-section(5) of Section 10 of the said Act, no longer survives and it stood set aside in Writ Petition No.1806 of 2016 decided on 10-8-2016.
(2) The respondents cannot mutate the names of the intervenors or the legal representatives of the original owner in the revenue record in respect of the lands other than the land admeasuring 0.3 HR in Survey No.307 and 0.18 HR in Survey No.298/2, P.H. No.43 of Mouza Chinchbhuvan, Nagpur.::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:45:38 ::: 31
wp7170 of 16 & 4092 of 17.odt (3) The respondents shall be at liberty to mutate the names of the petitioners in both these petitions in respect of the plots in their possession out of the land Survey Nos.178/2, 180/1 and 303 of Mouza Chinchbhuvan, Nagpur, on the basis of the registered sale-deeds from the respondent No.3- Shri Gurudatta Co-operative Housing Society Limited, Nagpur.
(4) If there is any dispute as to the ownership of the plots and the possession of the petitioners on the basis of the registered sale-deeds, the parties can be asked to approach the competent Civil Court to get such declaration and a decree for possession, if any. In such event, the mutation of the properties in the names of the petitioners shall be subject to the result of the suit, if any filed in respect of it.
30. Rule is made absolute in the aforesaid terms. No order as to costs.
(Vinay Joshi, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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