Full Judgment Text
2010:BHC-AS:11432-DB
1
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5151 OF 2005
Estate Cooperative Housing Society ]
Limited, a Cooperative Soceity, ]
duly registered under the M.C.S. Act, 1960 ]
bearing Registration No.NSK (NSK) ]
HSG (AC) 2084/1991 having its ]
office at Ram Leela Uday Colony ]
Makhamalabad Naka, Panchavati, ]
Nashik through its Secretary, ]
Rajendra Bunage ].. Petitioner
versus
The State of Maharashtra ]
through its Secretary to the ]
Ministry of Urban Development ]
Deprtment, having office at ]
Mantrayala, Mumbai 400032 ]
(Copy for the Respondent ]
to be served on A.G.P. ]
Writ Cell, High Court (AS) Bombay) ].. Respondent.
Mr. G S Godbole for the Petitioner.
Mr. C R Sonawane AGP for the Respondent/State.
CORAM : P B MAJMUDAR &
R M SAVANT, JJ.
th
DATE : 18 June 2010
ORAL JUDGMENT : [PER R M SAVANT, J]
1 The lands in question in the instant Petition were of the
ownership of one Khatib family. Out of the large area owned by the said
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2
Khatib family the land admeasuring 14 H 64 R from out of Survey No.
750 was allowed to be transferred by the Collector to the Petitioners by
st
an order dated 31 December 1993 on payment of Nazrana. The said
Nazrana was paid by the Petitioners through the developer. The branches
of the said Khatib family on the Urban Land (Ceiling & Regulation) Act,
1976 (for brevities sake referred to as “the said Act”) having come into
force, filed statements under Section 6(1) of the said Act. In respect of
holding of Gulam Gaus Khatib an order came to be passed under Section
8(4) of the said Act. In so far as holding of Gulam Jauddin Khatib is
concerned, an order under Section 8(4) of the said Act came to be
passed, that the said Gulam did not hold any excess vacant land and so
far as branch of Mohammed Hasansaheb Khatib is concerned, an area
admeasuring 3956.99 sq.mtr from out of Survey No.751 (Pt.) declared as
st
excess vacant land vide order dated 1 November 1993. In so far as
branch of Peersaheb Abdul Rehman Khatib is concerned, an order came
to be passed under Section 8(4) of the said Act that the said branch did
not hold any excess vacant land. There are various intervening events
which had taken place, which in our view, are not relevant for the
purpose of adjudication of the above petition. In so far as proceedings
under UlC Act are concerned, the said orders under section 8(4) came to
be modified by the fresh orders passed by the Additional Collector and
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3
Competent Authority recomputing the case of the excess vacant lands.
th th st
This was done on 11 January 1995, 13 June 1995 and 21 January
th
1998 and 25 May 1998 in respect of the lands held by the various
branches of the said Khatib family.
2 It is the case of the Petitioners that they purchased various
portions of the lands from out of the said Survey Nos.750, 751 and 755
from the original owners by the registered sale deeds pursuant to which
the Petitioners were put in possession. The said purchases, according to
the Petitioners were effected between 1992 and 1998. It is the case of
the Petitioners that they had paid total consideration of 6,63,18,741.98
from time to time to the said land owners. It would be relevant to
mention at this stage that the substantial portion of the land from the
said Survey Nos.750, 751 and 755 were reserved in the final
development plan of Nashik which came into force in 1993 for various
public purposes. It appears that in respect of some portion of the said
land, a layout was prepared and the Petitioner had obtained development
permission for Plot No.22B in Final Plot No. 541 T.P.S. II Nashik. It
appears that A.D.T.P. Of Nashik Municipal Corporation was pleased to
grant permission for relocation of reservation No.364 for market and
shop centre and reservation No.365 for primary school within final plot
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4
No.541. It is the case of the Petitioner that it had paid substantial
amount to the Nashik Municipal Corporation towards the development
charges and other fees for sanctioning of the layouts. The State of
Maharashtra has also granted extension to the Petitioners in the
implementation of Exemption Scheme under section 20 of the ULC Act in
respect of the area admeasuring 6261.16 sq.mtr from survey No.750
(part) of village Nasik to one Shri Chiraguddin Mohammedsaheb Khatib
and an area admeasuring 1642.65 sq.mtr. From survey No.755 Part to
Rahakbegum Mohammedsaheb Khatib. However, in the above Petition,
we are not called upon to consider as to whether the said scheme under
section 20 of the said Act sanctioned by the State Government survives or
not in the light of the repeal of the ULC Act, as no issue arises for
consideration in the present Petition as regards the said schemes.
3 It appears that much after the development as mentioned
herein above had taken place that the Additional Collector and
Competent Authority, ULC Nasik sent a notice to the erstwhile land
th
owners dated 4 February 2005 indicating that the State Government has
decided to take up the cases of original land owners in which orders had
been passed under Section 8(4) of the said Act in revision and hence the
State Government has granted stay to the various orders passed under
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5
Section 8(4) of the Act. The communication received by the Additional
th
Collector and Competent Authority dated 7 January 2005 addressed by
the State Government to the Additional Collector was enclosed with the
th
letter dated 4 February 2005. It appears that thereafter the State
th
Government vide a fax message sent on 9 June 2005 to the Additional
Collector and Competent Authority, Nasik, intimated that an urgent
th
hearing has fixed before the Hon’ble Chief Minister on 14 June 2005. It
is on the basis of the said fax message that the Additional Collector and
Competent Authority sent a notice to some of the erstwhile owners of the
lands bearing Survey Nos.750, 751 and 755 calling upon them to remain
th
present before the Hon’bel Chief Minister on 14 June 2005 at 12.30 pm
Aggrieved by initiation of the said suo moto revisional proceedings that
the Petitioner has filed the above Writ Petition.
4 The principal ground on which initiation of the said
proceedings under Section 34 of the said Act has been challenged is that
there has been an inordinate delay in exercising revisional jurisdiction
and, therefore, on the said ground the said proceedings are required to
be quashed. The above writ petition had come up for admission before
st
the Division Bench of this Court on 1 February 2006 on which date the
Petition came to be admitted and interim relief in terms of prayer clause
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6
(d) of the Petition came to be granted which is undisputedly in operation
till this date. In the interregnum the Urban Land (Ceiling & Regulation)
Act has been repealed by the Urban Land (Ceiling & Regulation) Repeal
th
Act, 1999 and the said repeal Act has come into operation on 29
November 2007. In view of the fact that the said Act has been repealed,
the revisional proceedings which were pending with the State
Government at the relevant time now cannot be decided and therefore in
view of the repeal it would have to be held that the said proceedings
have abated.
5 It would be significant to note that pursuant to the order
th
dated 9 April 2010, an affidavit has been filed by Shri Prakash Thube,
Additional Collector and Competent Authority, Nashik in which affidavit
in para 3 it has been stated in categorical terms that no notifications
under section 10(1) and 10(3) of the said Act were issued in respect of
the land in question.
6 In so far as issue as regards inordinate delay in taking
recourse to the provisions relating to revision and consequential vitiation
of the said proceedings on that score is concerned, the said issue is no
more resintegra and is covered by the unreported judgment of a Division
Bench of this Court in Writ Petition No.8571 of 2007 and companion
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7
th
matters dated 12 June 2008. In the more or less identical facts where
revisional powers were sought to be exercised after a considerable period
of time. The Division Bench relying upon another judgment of a Division
Bench of this Court in the case of Automotive Research Association of
India v/s. State of Maharashtra and ors held that powers under section
34 are to be exercised by the Revisional Authority within a reasonable
period and this court has held that three years would be reasonable
period. The Division Bench further held that in view of the repeal of the
ULC Act, no order can now be made by the Government. In the instant
case as can be seen the said revisional powers were sought to be
exercised after a period of 7 to 10 years of the 8(4) orders.
7 In the light of what has been held by the Division Bench as
above, the instant Petition is required to be allowed and is accordingly
allowed in terms of prayer clause (a).
8 Though we have allowed the Petition as above, in the
intervening period certain events have occurred which we are required to
deal with. In so far as portion out of survey No.750, presently forming
part of final plot No.541, TDS, Nashik, an area of 2400 sq.mtrs, according
to the Petitioner, was wrongly taken possession of by the Nashik
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8
Municipal Corporation and tenements for the weaker section have been
constructed on the said plot of land by the Regional Board of the
Maharashtra Housing Area Development Authority. It is the case of the
Petitioner that the said land was taken over without acquisition and
constructed upon. This resulted in the Petitioner filing Writ Petition No.
2192 of 2007 in this Court challenging the said action of the Nashik
Municipal Corporation. The said Writ Petition came to be disposed of by
th
a Division Bench by an order dated 11 August 2008. By the said order it
was directed that the Nashik Municipal Corporation would submit a
proposal for acquisition of the said land which it had taken over and on
such proposal being submitted, the Collector shall inform the
Corporation, the approximate amount which is required to be deposited
by the Corporation so that the Collector/Land Acquisition Officer shall
proceed further. It appears that in terms of the said directions, the
amount was deposited by the Nashik Municipal Corporation with the
Collector, Nashik. Thereafter a Civil Application came to be filed being
Civil Application No.520 of 2010 on behalf of the Collector, Nashik in
which an order came to be passed directing the Corporation to deposit
the said amount in this Court to be deposited in the above Writ Petition
No.5151/2005. Accordingly the Collector has deposited the said amount
in this Court in the account of the above writ petition. It is the case of
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9
the Petitioner that in the light of our decision as above, the said amount
should be directed to be given to the Petitioner.
9 In our view, it would be appropriate to remit the amount back
with accrued interest to the Collector, Nashik. We accordingly direct the
office to remit the amount back to the Collector, Nashik forthwith.
10 The Petitioner would be at liberty to make an application to
the Collector, Nashik for claiming the said amount within a period of two
weeks from date. If such an application is made by the Petitioner, the
Collector, Nashik or the concerned Special Land Acquisition Officer, after
carrying out enquiry, would disburse the amount in accordance with law.
11 Rule is accordingly made absolute with parties to bear their
respective costs.
[R.M.SAVANT, J] [P.B.MAJMUDAR, J]
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1
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5151 OF 2005
Estate Cooperative Housing Society ]
Limited, a Cooperative Soceity, ]
duly registered under the M.C.S. Act, 1960 ]
bearing Registration No.NSK (NSK) ]
HSG (AC) 2084/1991 having its ]
office at Ram Leela Uday Colony ]
Makhamalabad Naka, Panchavati, ]
Nashik through its Secretary, ]
Rajendra Bunage ].. Petitioner
versus
The State of Maharashtra ]
through its Secretary to the ]
Ministry of Urban Development ]
Deprtment, having office at ]
Mantrayala, Mumbai 400032 ]
(Copy for the Respondent ]
to be served on A.G.P. ]
Writ Cell, High Court (AS) Bombay) ].. Respondent.
Mr. G S Godbole for the Petitioner.
Mr. C R Sonawane AGP for the Respondent/State.
CORAM : P B MAJMUDAR &
R M SAVANT, JJ.
th
DATE : 18 June 2010
ORAL JUDGMENT : [PER R M SAVANT, J]
1 The lands in question in the instant Petition were of the
ownership of one Khatib family. Out of the large area owned by the said
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2
Khatib family the land admeasuring 14 H 64 R from out of Survey No.
750 was allowed to be transferred by the Collector to the Petitioners by
st
an order dated 31 December 1993 on payment of Nazrana. The said
Nazrana was paid by the Petitioners through the developer. The branches
of the said Khatib family on the Urban Land (Ceiling & Regulation) Act,
1976 (for brevities sake referred to as “the said Act”) having come into
force, filed statements under Section 6(1) of the said Act. In respect of
holding of Gulam Gaus Khatib an order came to be passed under Section
8(4) of the said Act. In so far as holding of Gulam Jauddin Khatib is
concerned, an order under Section 8(4) of the said Act came to be
passed, that the said Gulam did not hold any excess vacant land and so
far as branch of Mohammed Hasansaheb Khatib is concerned, an area
admeasuring 3956.99 sq.mtr from out of Survey No.751 (Pt.) declared as
st
excess vacant land vide order dated 1 November 1993. In so far as
branch of Peersaheb Abdul Rehman Khatib is concerned, an order came
to be passed under Section 8(4) of the said Act that the said branch did
not hold any excess vacant land. There are various intervening events
which had taken place, which in our view, are not relevant for the
purpose of adjudication of the above petition. In so far as proceedings
under UlC Act are concerned, the said orders under section 8(4) came to
be modified by the fresh orders passed by the Additional Collector and
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3
Competent Authority recomputing the case of the excess vacant lands.
th th st
This was done on 11 January 1995, 13 June 1995 and 21 January
th
1998 and 25 May 1998 in respect of the lands held by the various
branches of the said Khatib family.
2 It is the case of the Petitioners that they purchased various
portions of the lands from out of the said Survey Nos.750, 751 and 755
from the original owners by the registered sale deeds pursuant to which
the Petitioners were put in possession. The said purchases, according to
the Petitioners were effected between 1992 and 1998. It is the case of
the Petitioners that they had paid total consideration of 6,63,18,741.98
from time to time to the said land owners. It would be relevant to
mention at this stage that the substantial portion of the land from the
said Survey Nos.750, 751 and 755 were reserved in the final
development plan of Nashik which came into force in 1993 for various
public purposes. It appears that in respect of some portion of the said
land, a layout was prepared and the Petitioner had obtained development
permission for Plot No.22B in Final Plot No. 541 T.P.S. II Nashik. It
appears that A.D.T.P. Of Nashik Municipal Corporation was pleased to
grant permission for relocation of reservation No.364 for market and
shop centre and reservation No.365 for primary school within final plot
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4
No.541. It is the case of the Petitioner that it had paid substantial
amount to the Nashik Municipal Corporation towards the development
charges and other fees for sanctioning of the layouts. The State of
Maharashtra has also granted extension to the Petitioners in the
implementation of Exemption Scheme under section 20 of the ULC Act in
respect of the area admeasuring 6261.16 sq.mtr from survey No.750
(part) of village Nasik to one Shri Chiraguddin Mohammedsaheb Khatib
and an area admeasuring 1642.65 sq.mtr. From survey No.755 Part to
Rahakbegum Mohammedsaheb Khatib. However, in the above Petition,
we are not called upon to consider as to whether the said scheme under
section 20 of the said Act sanctioned by the State Government survives or
not in the light of the repeal of the ULC Act, as no issue arises for
consideration in the present Petition as regards the said schemes.
3 It appears that much after the development as mentioned
herein above had taken place that the Additional Collector and
Competent Authority, ULC Nasik sent a notice to the erstwhile land
th
owners dated 4 February 2005 indicating that the State Government has
decided to take up the cases of original land owners in which orders had
been passed under Section 8(4) of the said Act in revision and hence the
State Government has granted stay to the various orders passed under
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5
Section 8(4) of the Act. The communication received by the Additional
th
Collector and Competent Authority dated 7 January 2005 addressed by
the State Government to the Additional Collector was enclosed with the
th
letter dated 4 February 2005. It appears that thereafter the State
th
Government vide a fax message sent on 9 June 2005 to the Additional
Collector and Competent Authority, Nasik, intimated that an urgent
th
hearing has fixed before the Hon’ble Chief Minister on 14 June 2005. It
is on the basis of the said fax message that the Additional Collector and
Competent Authority sent a notice to some of the erstwhile owners of the
lands bearing Survey Nos.750, 751 and 755 calling upon them to remain
th
present before the Hon’bel Chief Minister on 14 June 2005 at 12.30 pm
Aggrieved by initiation of the said suo moto revisional proceedings that
the Petitioner has filed the above Writ Petition.
4 The principal ground on which initiation of the said
proceedings under Section 34 of the said Act has been challenged is that
there has been an inordinate delay in exercising revisional jurisdiction
and, therefore, on the said ground the said proceedings are required to
be quashed. The above writ petition had come up for admission before
st
the Division Bench of this Court on 1 February 2006 on which date the
Petition came to be admitted and interim relief in terms of prayer clause
::: Downloaded on - 01/04/2024 15:39:54 :::
6
(d) of the Petition came to be granted which is undisputedly in operation
till this date. In the interregnum the Urban Land (Ceiling & Regulation)
Act has been repealed by the Urban Land (Ceiling & Regulation) Repeal
th
Act, 1999 and the said repeal Act has come into operation on 29
November 2007. In view of the fact that the said Act has been repealed,
the revisional proceedings which were pending with the State
Government at the relevant time now cannot be decided and therefore in
view of the repeal it would have to be held that the said proceedings
have abated.
5 It would be significant to note that pursuant to the order
th
dated 9 April 2010, an affidavit has been filed by Shri Prakash Thube,
Additional Collector and Competent Authority, Nashik in which affidavit
in para 3 it has been stated in categorical terms that no notifications
under section 10(1) and 10(3) of the said Act were issued in respect of
the land in question.
6 In so far as issue as regards inordinate delay in taking
recourse to the provisions relating to revision and consequential vitiation
of the said proceedings on that score is concerned, the said issue is no
more resintegra and is covered by the unreported judgment of a Division
Bench of this Court in Writ Petition No.8571 of 2007 and companion
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7
th
matters dated 12 June 2008. In the more or less identical facts where
revisional powers were sought to be exercised after a considerable period
of time. The Division Bench relying upon another judgment of a Division
Bench of this Court in the case of Automotive Research Association of
India v/s. State of Maharashtra and ors held that powers under section
34 are to be exercised by the Revisional Authority within a reasonable
period and this court has held that three years would be reasonable
period. The Division Bench further held that in view of the repeal of the
ULC Act, no order can now be made by the Government. In the instant
case as can be seen the said revisional powers were sought to be
exercised after a period of 7 to 10 years of the 8(4) orders.
7 In the light of what has been held by the Division Bench as
above, the instant Petition is required to be allowed and is accordingly
allowed in terms of prayer clause (a).
8 Though we have allowed the Petition as above, in the
intervening period certain events have occurred which we are required to
deal with. In so far as portion out of survey No.750, presently forming
part of final plot No.541, TDS, Nashik, an area of 2400 sq.mtrs, according
to the Petitioner, was wrongly taken possession of by the Nashik
::: Downloaded on - 01/04/2024 15:39:54 :::
8
Municipal Corporation and tenements for the weaker section have been
constructed on the said plot of land by the Regional Board of the
Maharashtra Housing Area Development Authority. It is the case of the
Petitioner that the said land was taken over without acquisition and
constructed upon. This resulted in the Petitioner filing Writ Petition No.
2192 of 2007 in this Court challenging the said action of the Nashik
Municipal Corporation. The said Writ Petition came to be disposed of by
th
a Division Bench by an order dated 11 August 2008. By the said order it
was directed that the Nashik Municipal Corporation would submit a
proposal for acquisition of the said land which it had taken over and on
such proposal being submitted, the Collector shall inform the
Corporation, the approximate amount which is required to be deposited
by the Corporation so that the Collector/Land Acquisition Officer shall
proceed further. It appears that in terms of the said directions, the
amount was deposited by the Nashik Municipal Corporation with the
Collector, Nashik. Thereafter a Civil Application came to be filed being
Civil Application No.520 of 2010 on behalf of the Collector, Nashik in
which an order came to be passed directing the Corporation to deposit
the said amount in this Court to be deposited in the above Writ Petition
No.5151/2005. Accordingly the Collector has deposited the said amount
in this Court in the account of the above writ petition. It is the case of
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9
the Petitioner that in the light of our decision as above, the said amount
should be directed to be given to the Petitioner.
9 In our view, it would be appropriate to remit the amount back
with accrued interest to the Collector, Nashik. We accordingly direct the
office to remit the amount back to the Collector, Nashik forthwith.
10 The Petitioner would be at liberty to make an application to
the Collector, Nashik for claiming the said amount within a period of two
weeks from date. If such an application is made by the Petitioner, the
Collector, Nashik or the concerned Special Land Acquisition Officer, after
carrying out enquiry, would disburse the amount in accordance with law.
11 Rule is accordingly made absolute with parties to bear their
respective costs.
[R.M.SAVANT, J] [P.B.MAJMUDAR, J]
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