Bombay High Court
Abdul Aziz Alisaheb Bharmar vs The State Of Maharashtra on 17 August, 2010
Author: D. D. Sinha
Bench: D. D. Sinha, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4751 OF 2008
1. Abdul Aziz Alisaheb Bharmar ]
Age 55 years ]
2. Aasifa Abdul Aziz Bharmar ]
Age 50 years ]
3. Suraiyya Mushtaque Kuwari ]
Age 51 years ]
4. Aasma Sikander Burhan ]
Age 50 years ]
5. Noorjahan Abdul Latif Mulla ]
Age 47 years ig ]
6. Ruksana Alisaheb Bharmar ]
Age 46 years ]
7. Yasar Abdul Aziz Bharmar ]
Age 31 years ]
8. Raza Abdul Aziz Bharmar ]
Age 29 years ]
9. Bibi-sara Faraz Kuwari ]
Age 26 years ]
10. Kaisar Abdul Aziz Bharmar ]
Age 24 years ]
11. Jahara Abdul Aziz Bharmar ]
Age 22 years ]
12. Hawabi Alisaheb Bharmar ]
Age 76 years ]
All residents of Kasar Vadavali, ]
Taluka and District Thane ]
Through the Power of Attorney ]
Holder Shri Abdul Aziz Ali Saheb Bharmar ]
Residing at Kasar Vadavali, ]
Taluka and District Thane ]..Petitioners
versus
1. The State of Maharashtra ]
2. Additional Collector & Competent ]
Authority under U.L.C. Act, Thane ]..Respondents
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Mr. P. B. Anand for the Petitioners.
Mr. C. R. Sonawane - AGP for the Respondents.
CORAM : D. D. SINHA AND
MRS. MRIDULA BHATKAR, JJ.
Judgment Reserved on : 06.08.2010
Judgment Pronounced on : 17.08.2010
JUDGMENT :(Per : D. D. Sinha, J.)
1. Heard the learned counsel for the petitioners and the learned Assistant Government Pleader for the respondents.
2. Petitioners in the present petition are seeking declaration that the proceedings under The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Act of 1976") in respect of alleged surplus area with regard to Survey No. 25/1 admeasuring 3475 sq. meters of Village Vadavali, Taluka and District Thane, stands abated in view of the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999.
3. The learned counsel for the petitioners has submitted that the Deputy Collector and the Competent Authority, Thane Urban Agglomeration, passed an order dated 19th October 1988 under Section 8(4) of the Act of 1976 in the Case bearing No. ULC/TA/Kavesar/SR/193 in ::: Downloaded on - 09/06/2013 16:18:33 ::: 3 respect of various lands situate at Village Kavesar, Vadavali and Owale.
Survey No. 25/1 of Village Vadavali was in green zone.
4. It is further contended by the learned counsel for the petitioners that respondent No.2 vide Order dated 5th October 1996 granted exemption in respect of the lands belonging to the petitioners including the land out of Survey No. 25/1 under Section 20 of the Act of 1976. The total area covered by the scheme was 9350 sq. meters out of which 3475 sq. meters was from Survey No. 25/1. Aziz Bharmar submitted an application dated 16th December 1997 before the Competent Authority for passing a fresh order under Section 15 read with Section 8(4) of the Act of 1976 on account of inclusion of lands bearing Survey Nos. 25/1, 25/2 and 29/8 in residential zone.
5. The learned counsel for the petitioners has submitted that on 22nd April 1998 the respondent no. 2 passed a revised order by setting aside his previous order dated 19th October 1988 passed under section 8(4) of the Act of 1976. The order dated 22nd April 1998 was passed by the respondent no. 2 in respect of total holding admeasuring 47814.40 sq. meters including land bearing Survey No. 48 and 52/2 of Village Borivade after excluding area admeasuring 9350 sq. meters out of Survey No. 25/1 of Village Vadavali which was exempted under Section 20 of the Act of 1976 vide ::: Downloaded on - 09/06/2013 16:18:33 ::: 4 order dated 5th October 1996.
6. It is submitted that the respondent No.2 on 29th September 2003 issued notice and informed that Mr. Alisaheb Bharmar did not commence the scheme within two years from the prescribed date and also not completed the scheme within a period of five years as per condition No. 6 of the scheme. Respondent No. 2 vide order dated 26th March 2007 cancelled the scheme sanctioned under Section 20 vide order dated 5th October 1996 in respect of the area admeasuring 9350 sq. meters from Survey No. 25/1 of Village Vadavali on the ground that the scheme was not implemented as per the terms and conditions of the scheme.
7. Counsel for the petitioners has further submitted that the respondents at no point of time initiated proceedings either under Section 10(3) of the Act of 1976 or any other proceedings under Section 10 of the Act of 1976 for acquiring or taking possession of the land admeasuring 3475 sq. meters out of Survey No. 25/1 of Village Vadavali. The actual and physical possession of the said land continues to be with the petitioners. Though it is wrongly claimed by the respondents that the same is taken by the respondents, exparte in the year 2005. The land admeasuring 3475 sq. meters out of Survey No. 25/1 being the part of the scheme which was exempted by the Competent Authority under Section 20(1)(a) of the Act of ::: Downloaded on - 09/06/2013 16:18:33 ::: 5 1976, question of handing over the possession of the said land did not arise.
It is submitted that the land admeasuring 3475 sq. meters was to be handed over by the petitioners on their own, after the development of the land as per the terms and conditions of the scheme. However, the said land was never developed due to the litigation with the respondent no. 2 and possession thereof therefore was never handed over to the Government.
8. It is the case of the petitioners that the Competent Authority passed the revised order dated 22nd April 1998 by exercising power under Section 15 read with Section 8(4) of the Act of 1976 whereby the earlier order passed by the Competent Authority dated 19th October 1988 under Section 8(4) of the Act of 1976 came to be set aside. The revised order dated 22nd April 1998 whereby the land belonging to the petitioners came to be declared surplus did not include the land admeasuring 3475 sq. meters out of Survey No. 25/1 of Village Vadavali. Hence the said land of the petitioners out of Survey No. 25/1 was at no point of time was declared by the Competent Authority as an vacant land held by the petitioners in excess of ceiling limit under Section 8(4) of the Act of 1976 by order dated 19th October 1988 nor vide revised order dated 22nd April 1998 passed by the Competent Authority under Section 15 read with Section 8(4) of the Act of 1976. Hence, no proceedings for acquisition of the land admeasuring 3475 sq. meters out of Survey No. 25/1 were initiated by the Competent Authority ::: Downloaded on - 09/06/2013 16:18:33 ::: 6 under Section 10 of the Act of 1976 since the said land was never declared to be in excess of the ceiling limit by the Competent Authority, hence question of taking possession of the said land by the Competent Authority did not arise. Since the petitioners claimed to have been in physical and actual possession of the land in question on the date of filing of the present writ petition the possession of the petitioners was protected by this Court vide interim order dated 9th November 2009 passed in the present writ petition, during the pendency of this petition.
9. Counsel for the petitioners have submitted that even otherwise the proceedings, if any, initiated by the Competent Authority under the Act of 1976 in respect of the land which is declared in excess of the ceiling limit by the Competent Authority under Section 8(4) or read with Section 15, of which possession continues with the land holder, in view of the law declared by this Court in cases of Voltas Ltd. & Anr. vs. Additional Collector & Competent Authority, Thane & Ors. [2008(5) ALL MR 537 , and Vithabai Bama Bhandari vs. State of Maharashtra and another [2009 (4) Mh.L.J. 693] stands abated.
10. The learned counsel for the petitioners vehemently argued that in view of the undisputed facts and circumstances of the present case, the provisions of the Act of 1976 were not attracted in respect of the land from Survey No. ::: Downloaded on - 09/06/2013 16:18:33 ::: 7 25/1 since the said land of the petitioners was never declared surplus.
Similarly, though it is not in dispute that the respondents never initiated any proceedings under section 10 of the Act of 1976 for acquisition of the land in question, however, even in case of initiation of such proceedings, the same would have stood abated in view of the decision of this Court in Voltas's case since the possession of the land continues to be with the petitioners till date. It is further submitted that in view of the provisions of section 4 of the Repealed Act, suo motu proceedings under section 34 of the Act initiated by the State Government also stand abated. The learned counsel for the petitioners, therefore, submitted that the petition deserves to be allowed.
11. The learned Assistant Government Pleader submitted that order under Section 8(4) of the Act of 1976 was passed on 19th October 1988 by the Additional Collector and Competent Authority wherein it is mentioned that the land bearing Survey No. 25/1 at Village Vadavali was in the green zone, therefore, the said land was deducted from the total land holding of the petitioners. The learned Assistant Government Pleader further submitted that the green zone at latter point of time was converted into residential zone by draft development plan of Thane Municipal Corporation on 21st December 1991 and thereafter the petitioners have applied for sanction of scheme under Section 20(1)(a) of the Act of 1976. The Competent ::: Downloaded on - 09/06/2013 16:18:33 ::: 8 Authority sanctioned the scheme under Section 20 vide order dated 5th October 1996 and as per clause (g) of the said scheme the land admeasuring 3475 sq. meters was to be handed over to the Government with frontage and access roads before the commencement of the scheme.
12. The learned Assistant Government Pleader further submitted that the land holders had applied for revised order under Section 15 of the Act of 1976. Competent Authority therefore by the revised order dated 22nd April 1998 declared an area admeasuring 17239.75 sq. meters out of Survey No. 245/4A, 246 at Village Kavesar, Survey No. 48 at Village Borivade and Survey No. 25/2 and 29/8 at Village Vadavali, Taluka and District Thane.
The land owners failed to implement the scheme and therefore the Competent Authority vide order dated 26th March 2007 cancelled the scheme.
13. The learned Assistant Government Pleader further contended that by order dated 19th July 2007 issued by Desk Officer, Government of Maharashtra initiated suo moto revisional proceedings under Section 34 of the Act of 1976. It is submitted that by order dated 21st July 2007 respondent no. 2 declared that since the scheme under Section 20 of the Act of 1976 was stayed by the Government in suo moto proceedings initiated under Section 34 of the Act of 1976 hence the scheme which was sanctioned was ::: Downloaded on - 09/06/2013 16:18:33 ::: 9 confirmed on the same terms and conditions as mentioned in the order dated 5th October 1996 passed by the Competent Authority.
14. The learned Assistant Government Pleader has submitted that the exparte possession of the land in question was taken by the Authorities in the year 2005 and the panchnama in this regard was also drawn. It is submitted that the petitioner was required to implement the scheme sanctioned by the Competent Authority vide Order dated 5th October 1996.
It is submitted that though the Act of 1976 has been repealed, the exemption granted under Section 20(1) by sanctioning the scheme is saved and Section 5(2) of the Repeal Act 1999 provides that notwithstanding the Repeal Act, anything done or any action taken under the the Act of 1976 shall be deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under the `corresponding provisions of this Act and therefore the respondents are entitled to take action under the corresponding provisions of the Act of 1976. It is therefore submitted that the petition is devoid of substance and liable to be dismissed.
15. We have considered the contentions canvassed by the respective counsel as well as relevant provisions of the Act of 1976 coupled with the decision of Division Bench in Vithabai's case as well as Voltas's case (cited supra).
::: Downloaded on - 09/06/2013 16:18:33 ::: 1016. At the outset, we want to state that the Division Bench of this Court on 9th November 2009 issued the Rule in the present writ petition which is restricted to the relief as prayed in prayer clause (b) of the petition. The said order reads thus:-
"Coram : D. K. Deshmukh And K. K. Tated, JJ.
Dated: 9th November 2009.
1. Rule, restricted to relief as prayed in prayer clause
(b).
2. Interim relief in terms of prayer clause (g)."
The learned counsel for the petitioners has submitted that the relief claimed by the petitioners in prayer clause (b) is further restricted only in respect of the land from Survey No. 25/1 of Village Vadavali, Taluka and District Thane and though this land was never declared surplus by the Competent Authority, due to inadvertence it has been wrongly mentioned in prayer clause (g) otherwise..
17. In order to appreciate the relief claimed by the petitioners in prayer clause (b), it is necessary to consider the Scheme of Sections 6, 8, 9 and 10 of the the Act of 1976.
Section 6 required persons holding vacant land in excess of ceiling limit to file statement. Section 6(1) contemplates every person holding ::: Downloaded on - 09/06/2013 16:18:33 ::: 11 vacant land in excess of ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the Competent Authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all the vacant land and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him and also specify the vacant land within the ceiling limit which he deserves to retain (for the purpose of issue involved in the present petition the other part of Section 6 is not relevant).
In view of provisions of Section 6 it was mandatory to file a statement by a person holding vacant land in excess of ceiling limit at the commencement of the Act of 1976 before the Competent Authority.
Section 8 deals with preparation of draft statement as regards vacant land held in excess of ceiling limit. Sub section (1) of Section 8 contemplates that on the basis of the statement filed under Section 6 and after such enquiry as the Competent Authority may deem fit is required to draft a statement in respect of the person who has filed the statement under Section 6. Sub section (2) of Section 8 stipulates that every statement prepared under sub section (1) shall contain particulars mentioned therein.
Whereas sub section (3) of Section 8 requires serving of draft statement on the person concerned together with the notice stating that any objection to the draft statement shall be preferred within 30 days of the service thereof.
Sub section (4) of Section 8 requires Competent Authority to duly consider ::: Downloaded on - 09/06/2013 16:18:33 ::: 12 any objection received within the period specified in the notice referred to in sub section (3) or within such further period as may be specified by the Competent Authority for any good or sufficient reason, from the person whom a copy of the draft statement has been served and the Competent Authority is required to give reasonable opportunity of being heard to such objector and thereafter to pass such orders as it deems fit.
Section 9 contemplates that after disposal of objection by the Competent Authority under sub section (4) of Section 8, the Competent Authority shall make the necessary alteration in the draft statement in accordance with the orders passed on the objections and shall determine the vacant land held by a person concerned in excess of ceiling limit and cause copy of the draft statement as so altered to be served in the manner referred to in sub section (3) of Section 8 on the person concerned. This is the final statement prepared by the Competent Authority in respect of the land held by a person concerned in excess of ceiling limit.
Section 10 deals with the procedure to be adopted for acquisition of the vacant land held by the person in excess of ceiling limit. Sub Section (1) of Section 10 requires Competent Authority, after service of the statement under Section 9 on the person concerned to issue notification giving the particulars of the vacant land held by such person in excess of ceiling limit. Sub section (2) of Section 10 requires Competent Authority to pass such order as it deems fit after considering the claims of the person ::: Downloaded on - 09/06/2013 16:18:33 ::: 13 interested in the vacant land made in pursuance of the notification published under sub section (1). Sub section (3) of Section 10 contemplates that at any time after publication of the notification under sub section (1), the Competent Authority may, by notification published in the official gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub section (1), shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. Sub section (4) of Section 10 prohibits transfer of excess vacant land by way of sale, mortgage, gift, lease, during the period commencing from the date on which publication of notification under sub section (1) was issued and ending with the date specified in the declaration made under sub section (3). Sub section (5) of section 10 provides for a procedure to be followed by the Competent Authority where the vacant land is vested in the State Government under sub section (3). Sub section (6) deals with the procedure, if any person refuses or fails to comply with an order made under sub section (5).
18. Considering the scheme of the aforesaid provisions of the Act of 1976, it is evident that the Competent Authority on the basis of the ::: Downloaded on - 09/06/2013 16:18:33 ::: 14 statement filed by a person holding vacant land in excess of ceiling limit under Section 6(1) and after following the due procedure stipulated in section (6), section 7, is required to prepare a draft statement as regards the vacant land held in excess of the ceiling limit under Section 8(1) and after following due procedure mentioned in sub sections 2 and 3 after giving reasonable opportunity of being heard require to pass such order as it deems fit under section 8(4). The final statement in respect of the vacant land held in excess of ceiling limit is prepared which is based on the order passed by the Competent Authority under Section 8(4). Finally the procedure for acquisition of vacant land in excess of ceiling limit is stipulated in Section
10.
19. In the instant case the following facts are not in dispute :-
1. The Competent Authority passed first order under Section 8(4) on 19th October, 1988.
2. Survey No. 25/1 of Village Vadavali at the relevant time was in green zone and therefore was not the part of the said order.
3. Application dated 16th December 1997 was submitted before the Competent Authority for passing a fresh order under Section 15 read with 8(4) of the Act of 1976 on account of inclusion of lands bearing Survey No. 25/1, 25/2 and 29/8 in the residential zone.
4. The Competent Authority - respondent no. 2 passed a revised order ::: Downloaded on - 09/06/2013 16:18:33 ::: 15 dated 22nd April 1998 and set aside his previous order dated 19th October 1988 passed under Section 8(4) of the Act of 1976;
5. It is not in dispute that the land admeasuring 3475 sq. meters out of Survey No. 25/1 was never declared surplus and was never part of the order dated 19th October 1988 nor order dated 22nd April 1998 passed by the Competent Authority under Section 8(4) and Section 15 read with Section 8(4) of the Act of 1976 respectively and therefore the said land of the petitioners was never declared to be in excess of the ceiling limit by the Competent Authority.
20. In other words, the above referred undisputed facts clearly show that the land of the petitioners out of Survey No. 25/1 not being the part of either order dated 19th October 1988 passed by the Competent Authority under Section 8(4) nor order dated 22nd April, 1998 passed by the Competent Authority under Section 15 read with 8(4) of the the Act of 1976 and therefore the question of acquiring the said land of the petitioners under Section 10 of the the Act of 1976 did not arise since the land of the petitioners out of Survey No. 25/1 was not declared by the Competent Authority as an land held by the petitioners in excess of the ceiling limit, hence no proceedings under Section 10 could be initiated in respect thereof for acquisition by the Competent Authority. Even otherwise it is not the case of the respondents that the Competent Authority had taken any steps ::: Downloaded on - 09/06/2013 16:18:33 ::: 16 for acquiring the said land under Section 10 of the Act of 1976 except the statement in the affidavit that the exparte possession of the said land was taken by the Competent Authority in the year 2005.
21. In the instant case, it is not in dispute that the Competent Authority did not declare the land of the petitioners from survey no.25/1 as a land held by the petitioners in excess of the ceiling limit under section 4(8) of the Act of 1976 and, therefore, the question of issuing final statement under section 9 did not arise. It is pertinent to note the land/lands held by the petitioners in excess of the ceiling limit at the commencement of the Act can only be determined by the Competent Authority bypassing necessary order in this regard under section 8(4) of the Act and the land which is not included in the order passed under section 8(4) cannot be held to be land held by the petitioners in excess of the ceiling limit and in such a situation, the provisions of the Act of 1976 cannot be made applicable to such land. The Competent Authority under section 10 of the Act is only entitled to acquire such vacant land which is in excess of the ceiling limit as determined by the Competent Authority under section 8(4) of the Act and not otherwise. We want to reiterate that in the instant case, the land belonging to the petitioners from Survey No.25/1 admeasuring 3475 sq. meters not being declared surplus under section 8(4) of the Act, the provisions of the Act of 1976 in respect of the said land were/are not applicable. Therefore, the ::: Downloaded on - 09/06/2013 16:18:33 ::: 17 Competent Authority is not legally entitled to initiate any proceedings for acquisition of the said land under section 10 of the Act even before the Repeal Act came into force, though in the instant case, it is not in dispute that the Competent Authority never initiated any proceedings under section 10 in respect of the land from Survey No.25/1 of the petitioners.
22. Insofar as the power under section 20 of the Act of 1976 vested in the State Government is concerned, in view of the scheme of the said provision, the said power can only be exercised to grant exemption only in respect of the land held by the person in excess of the ceiling limit. In the instant case, in view of the undisputed facts, the land from Survey No.25/1 not being declared in excess of the ceiling limit, the provisions of section 20 of the Act were not attracted and, therefore, the order passed by the Competent Authority dated 5th October 1996 passed under Section 20(1) of the Act in respect of the land admeasuring 3475 sq. meters from Survey No. 25/1 is an inconsequential order without any legal force, since the said land belonged to the petitioners was never declared surplus by the Competent Authority.
23. Even otherwise, the contention of the respondents that the petitioners have to implement the order dated 5th October 1996 by implementing the scheme sanctioned by the said order and failure to comply with the said ::: Downloaded on - 09/06/2013 16:18:33 ::: 18 direction, Competent Authority is entitled to take action, in view of the decision of this Court in the case of Vithabhai Bama Bhandari v. State of Maharashtra and another [2009 (4) Mh.L.J. 693], is devoid of substance.
Relevant observations are in paragraph 47 of the said judgement, which read thus:-
"47. The submissions made by Mr.Sonapl that by virtue of exemption under section 20(1) and withdrawal thereof under section 20(2), the requirement of section 10 partakes the nature of the terms of the contract cannot be accepted. The said submission is untenable. The reliance placed on the Division Bench Judgment in the case of Mohan vs. Principal Secretary, U.D.D. Government of Maharashtra delivered in W.P. No.5684 of 2007 dated 14th August, 2008 (unreported) is also misplaced. The reliance placed by Mr.Sonpal on sub-clause (b) of section 3 of the Repeal Act is also misconceived as the exemption under section 20(1) stood nullified in view of withdrawal of exemption under section 20(2) of the Principal Act. The question of saving thereof did not arise."::: Downloaded on - 09/06/2013 16:18:33 ::: 19
In view of the law declared by the Division Bench of this Court, even in case of breach of the conditions by the holder of the land in whose favour the exemption is granted under section 20(1) and if such exemption is withdrawn by the State Government by exercising the power under section 20(2) on account of breach of condition, even then the question of saving under sub-clause (b) of section 3 of the Repealed Act does not arise.
24. It is also well-settled by the Division Bench of this Court in the case of Voltas Ltd. & anr. v. Additional Collector and Competent Authority, Thane & Ors., reported in 2008 (5) All M.R. 537 that lands which are owned by the person in relation to such the notification under sub-
section (3) of section 10 of the principal Act was issued and the order under sub-section (5) of section 10 of the principal Act, however, such vacant land shall not vest in the State Government under sub-section (3) of section 10 of the principal Act, if possession of the said land has not been taken over by the Competent Authority and these notifications shall stand abated.
25. In the instant case, rule issued by this Court is restricted to the relief as prayed by the petitioners in prayer clause (b) only and as claimed by the petitioners that the possession of the land from Survey No. 25/1 was with the petitioners, same was protected by this Court by granting interim relief ::: Downloaded on - 09/06/2013 16:18:33 ::: 20 during the pendency of the petition vide order dated 9th November 2009.
Similarly the land in question was never declared surplus under Section 8(4) of the Act of 1976, in our view, provisions of the said Act of 1976 neither attracted nor applicable to the said land of the petitioners, and therefore, the Competent Authority was not legally entitled to initiate any proceedings under Section 10 of the Act of 1976 for acquisition of the said land. Even otherwise if the possession of the land is with the petitioners then, the proceedings initiated, if any, under Section 10 shall stand abated in view of the law declared by this Court in Voltas case. Similarly, so far as suo moto revisional proceedings initiated by the State Government under Section 34 of the Act of 1976 are concerned, the same shall also stand abated in view of the provisions of Section 4 of the Repeal Act, 1999.
26. For the reasons stated herein above, the provisions of the the Act of 1976 are neither attracted nor applicable in respect of the land of the petitioners admeasuring 3475 sq. meters out of Survey No. 25/1 situate at Village Vadavali. Even otherwise, if the petitioners continue to hold the physical and actual possession of the said land, in view of the interim order dated 9th November 2009 passed by this court in the present writ petition, the proceedings if any, even if initiated by the Competent Authority under Section 10 of the Act of 1976, in view of the decision of the Division Bench of this Court in Voltas as well as Vithabai's cases stands abated and the ::: Downloaded on - 09/06/2013 16:18:33 ::: 21 petitioners are legally entitled to hold the possession of the said land.
27. Rule is made absolute in the above terms. No order as to costs.
(D. D. SINHA, J.) (MRS. MRIDULA BHATKAR, J.) ::: Downloaded on - 09/06/2013 16:18:33 :::