Full Judgment Text
2016:BHC-OS:13312-DB
903-WP.1357.2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1357 OF 2014
Mr. Pankaj S. Parikh }
Age: 57 years, Occ. Business, }
Residing at 303, Vikas }
Chamber, Link Road, }
Mith Choky, Malad (W), }
Mumbai 400 064. } Petitioner
versus
1. The Additional Collector }
and Competent Authority }
th
(ULC), 5 floor, }
Administrative Building, }
Near Chetana College, }
Bandra (E), Mumbai 400 051}
}
2. The State of Maharashtra }
through its Urban and }
Revenue Department }
400 051 }
}
3. The City Survey Officer }
Goregaon, Mumbai }
summons be served through }
the AGP, Bombay High Court,}
Mumbai 400 023 } Respondents
Mr. Sandesh D. Patil for the petitioner.
Mr. Manish Upadhye – AGP for
respondent nos. 1 to 3.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- SEPTEMBER 21, 2016
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ORAL JUDGMENT:- (Per S. C. Dharmadhikari, J.)
1. Heard the learned counsel appearing for the parties. Rule.
Respondents waive service. By consent Rule made returnable
forthwith.
2. By this petition, under Article 226 of the Constitution of
India, the petitioner seeks a declaration that respondent nos. 1
and 2 have no right, title and interest in a immovable
property/land bearing CTS No. 531, Survey No. 20, Hissa No. 13
of Revenue Village Valnai, Taluka Borivali, District Mumbai. The
consequential directions are to delete the name of the second
respondent from the property register and/or card and substitute
it with that of the petitioner.
3. The proceedings are under the then Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as “the ULC
Act”). The petitioner in this writ petition claims to be a
constituted attorney of one Hasmat Jamal Ghanchi and Abdul
Latif K. Shaikh. They are partners of M/s. Skyline Enterprises.
At the same time, the petitioner claims to be the constituted
attorney of one Babu Bhaskar Bhandari and others. The
respondents to this petition are the State of Maharashtra and the
competent authority under the ULC Act.
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4. It is the case of the petitioner that the Bhandari family was
the owner of this land and some others. The petitioner is,
however, concerned with the above described land. It is stated
that one Smt. Gunjubai Manik Bhandari and others had filed a
return and on the basis of statements under section 6(1) of the
ULC Act so also some preliminary inquiry and measurement, a
draft statement under section 8(2) of the ULC Act was drawn.
The objections were invited and ultimately, an order was passed
under section 8(4) of the ULC Act. As per the said order, the
above land and to the extent of 1367.3 square meters was
declared to be retainable property. The balance was abviously
surplus vacant land. After taking into consideration the
statement under section 8(4), a final statement under section 9
was prepared. It is the case of the petitioner that this statement
has attained finality. It has not been altered, amended or
modified by any order. The petitioner submits that the retainable
property was dealt with by Gunjubai Bhandari and others. They
entered into an agreement with M/s. Skyline Enterprises dated
nd
22 April, 2002. It was duly registered in the office of the Sub-
Registrar of Assurances, Borivali. Smt. Gunjubai and others
executed a power of attorney in favour of M/s. Skyline
Enterprises which includes a power to appoint any other person
as their agent/attorney. The said M/s. Skyline Enterprises was
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not in a position to develop the property. It assigned the property
for development purpose to the petitioner vide two separate
th th
development agreements dated 4 April, 2006 and 16 April,
2006. Two separate power of attorneys were also executed in
th
favour of the petitioner on 16 April, 2006. Both the agreements
as well as the power of attorneys were duly registered in the
office of the Sub-Registrar of Assurances, Borivali, Mumbai. The
reason for division of the property was that there were two
separate agreements. The petitioner states that in pursuance of
the development agreement he applied for permission for
development of the said property. An Intimation of Disapproval
rd
(IOD) was granted on 3 March, 2007. The petitioner claims that
the Municipal Corporation also sanctioned the plans and granted
th
commencement certificate dated 26 April, 2007. Pursuant to
this permission, the petitioner made construction of plinth level
in this property/land.
5. It is the case of the petitioner that there is no voluntary
surrender nor the petitioner was forcibly dispossessed. The
petitioner is in possession. It is the case of the petitioner that
when the petitioner applied for and obtained the property card in
relation to this land, it was revealed that the name of the State of
Maharashtra is entered therein. That is because a letter of
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th
possession dated 18 October, 2006 was issued, pursuant to
which, this name was inserted.
6. The claim of the petitioner is that after obtaining
information regarding the proceedings under the ULC Act, it was
revealed that the competent authority had issued one letter dated
th
18 October, 2006 in the name of Vasant Manik Bhandari. That
is styled as a notice under section 10(5) of the ULC Act, thereby
st
calling upon the addressee to surrender the property on 31
October, 2006 at 2.30 p.m. There is no endorsement on the notice
that it is served. It is stated that the respondents have contended
before the municipal authorities that the State Government's
name is entered in the property card on the basis of this notice.
Thus, barring this notice or a self styled document, there is no
proof of the possession having been surrendered on the date
st
mentioned in the notice, namely 31 October, 2006. There is
nothing to suggest that the petitioner's possession of the property
was disturbed. Once, except this document, there is nothing on
record to indicate that the possession of the land was taken prior
to the repeal of the ULC Act in the State of Maharashtra with
th
effect from 29 November, 2007, then, the declaration as prayed
be granted.
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7. Mr. Patil learned counsel appeared before us for the
petitioner and raised several contentions. Before we refer to
them, it would be appropriate to peruse the contents of the
affidavit in reply filed by respondent nos. 1 and 2. It is filed by
the Additional Collector and Competent Authority (ULC). He is
deposing on the basis of the original record. He states that the
petitioner does not have any cause of action to approach this
Court. He has not approached this court with clean hands. The
writ petition suppresses relevant and material facts and is,
therefore, liable to be dismissed.
8. It is stated that one Vasant Manik Bhandari submitted/filed
th
statement under section 6(1) of the ULC Act on 13 August,
1976. That statement was made on behalf of Vasant Bhandari.
That statement led to an order being passed by the ULC Autority
th
under section 8(4) of the ULC Act dated 29 October, 1986. That
was challenged by filing a revision application under section 34 of
the ULC Act by M/s. Skyline Builders as constituted attorney of
th
original owners on 6 February, 1990. The petitioner has
acquired purported development rights from M/s. Skyline
Builders by two separate development agreements. That was
despite the fact that the property was not exempted under the
ULC Act. The concerned authority passed an order on the
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th
revision application dated 6 February, 1990 and directed that a
final statement be issued. That is how the final statement under
th
section 9 was issued on 11 June, 1990. Thus, the property was
not retainable by the original owners, but liable to be handed over
to the ULC authorities. Despite knowing these facts, the
petitioner executed an agreement with the said M/s. Skyline
Builders and being fully aware of the proceedings under the ULC
Act is bound by the same and cannot seek relief contrary to it. It
is stated that the entire procedure under the ULC Act was
followed and a notification was published in the official gazette
th
under section 10(3) of the ULC Act on 25 May, 2006. On
publication of such notification, the land vests in the Government.
There is nothing more required to be done. Thereafter, the
competent authority issued notice to original owner Vasant
Manik Bhandari and others to surrender and deliver possession
th
of the land. That notice is dated 18 October, 2006. The co-
owners, however, did not bother to comply with the notice. The
st
possession of the land was taken over on 31 October, 2006. The
authorities prepared a panchanama of the land and took over
th
possession. It is thereafter on 6 November, 2006 that the name
of the State Government was entered in the property register
card. In para 16 of this affidavit, it is asserted that the petitioner
was not in possession of the said land. The possession has
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already been taken over and prior to the repeal of the ULC Act.
Therefore, the repeal of the ULC Act does not affect the
proceedings in any manner. The petitioner has misled the
authorities and suppressed the filing of statement under section
8(4) of the ULC Act as also the revisional order. The petitioner
was well aware that the land is declared as surplus vacant land
th
and yet, by misguiding the authorities, got the order dated 27
March, 2002 (Exhibit-A to the petition). It is stated in para 20 of
this reply affidavit as under:-
“20. It may be further pertinent to note that one M/s.
Rajiv Harmalkar and Company appointed by the
th
Petitioner had vide Application dated 13 March, 2012
stated that their client was ready to pay the market value
of the area admeasuring 1098.25 square meters
excluding the area of DP Road admeasuring about 269.05
square meters. Accordingly the proposal for the aforesaid
Application has been submitted with a detailed report to
the Urban Land Development Department, State of
th
Maharashtra on 30 March, 2012 and necessary action
has been requested to be taken by the Authorities. The
outcome of the said Application has been awaited.
However, in view of the said Application, it is very clear
that the Petitioner has no ground to challenge and not
entitled to any relief and if at all the State Government to
th
decide on the Application dated 13 March, 2012, the
necessary action shall be taken on the basis of Orders
passed therein.”
9. On the basis of the above assertions, it is claimed that the
writ petition be dismissed.
10. After this material was placed before us on the earlier
occasions and brief submissions were canvassed by Mr. Patil, we
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passed an order directing production of the original record. A
Division Bench, of which, one of us (S. C. Dharmadhikari, J.) was
th
a party, directed on 12 August, 2016 that the original record be
produced so as to consider the submission of the petitioner that
physical possession was never taken prior to the date of the
repeal of the ULC Act in the State of Maharashtra. The original
nd
records were produced and on 2 September, 2016 we passed a
further order allowing the petitioner to inspect the same by
seeking appointment with the Registrar, High Court (Original
Side). The matter was placed for passing orders today. Today as
well, an affidavit styled as additional affidavit of the petitioner
was taken on record. That refers to the original record and
certain pages therein. It also refers to certain documents forming
part of the original record.
11. Mr. Patil learned counsel appearing for the petitioner firstly
submitted that in absence of any direction from this court, the
petitioner was not able to obtain copies of the documents in the
original file and record. However, the petitioner would proceed to
argue the case, as he is raising legal contentions on the basis of
the inspection notes and the contents of this additional affidavit.
Mr. Upadhye appearing for the respondents states that he
proceeds on the basis of denials.
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12. Thus, the essential contention of the petitioner's counsel is
that in the absence of any notice and opportunity to the original
owner and as required by the law, it cannot be said that the
possession of the land, which is declared as surplus vacant land,
was obtained. The law, according to Mr. Patil, not only declares
that on issuance of the notification under sub-section (1) the
competent authority may, by notification published in the official
gazette of the State concerned declare by notification published
under section 10(1) with effect from such date as maybe specified
in the declaration, the surplus vacant land/excess vacant land be
deemed to have been acquired by the State Government. Mr.
Patil submits that therefore, on issuance of and publication of the
notification under sub-section (1) of section 10 and thereafter
consideration of the claims of the persons interested in the
vacant land, it is for the competent authority to determine the
nature and extent of such claims and pass such orders as it
deems fit. That is permissible under sub-section (2) of section 10.
After this exercise, by sub-section (3) of section 10, there is
discretion in the competent authority to issue a notification and
publish it in the official gazette so as to vest the excess vacant
land in the State. However, by sub-section (4) of section 10, it is
evident that during the period commencing from the date of
publication of the notification under sub-section (1) and ending
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with the date specified in the declaration made under sub-section
(3), no person shall transfer by way of sale, mortgage, gift, lease
or otherwise any excess vacant land, including any part thereof
specified in the notification and any such transfer made in
contravention of this provision shall be deemed to be null and
void. No person shall alter or cause to be altered the use of such
excess vacant land. Mr. Patil contends, therefore, that the
petitioner's agreements and which have attained finality and
would enable him to substitute or step into the shoes of the
original owners and thereafter maintain this writ petition. There
is, therefore, no substance in the allegation made in the affidavit
in reply that the petitioner has suppressed relevant and material
facts.
13. Apart from this, according to Mr. Patil, even if everything
until the publication of the declaration in the official gazette
under sub-section (3) of section 10 of the ULC Act is legal and
valid, yet, by sub-section (5) of section 10, the vacant land, which
is vested in the State under sub-section (3) has to be taken over.
Meaning thereby, the possession of the same has to be taken over
by the competent authority. For that purpose, it is mandated to
issue a notice in writing ordering any person, who may be in
possession of that land, to deliver possession thereof to the State
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Government or to any person duly authorised by the State
Government in this behalf within 30 days of the service of the
notice. The petitioner has asserted that he was in possession of
the land. His agreements were legal and valid as on the date of
issuance of the notice within the meaning of sub-section (5) of
th
section 10. That is dated 18 October, 2006. However, the
contents of the additional affidavit would demonstrate that the
petitioner was never dispossessed. The notice may have been
issued and a copy thereof is in the file. However, a clear
endorsement in the file would indicate that the notice could not be
served. The remarks in the file are that neither by personal
service nor by registered post acknowledgment due or any other
mode the notice was served as claimed. Further, there is nothing
in the record which would indicate that the panchanama or
possession receipt bears any endorsement of independent
persons. Mr. Patil concedes that there is no particular form
prescribed for obtaining possession or evidencing the same. Yet,
the very purpose of drawing up a panchanama is that the
possession of the property is taken in the presence of two
independent and impartial persons who have nothing to do or are
not concerned with the land. Thus, unilateral or one sided
statement of the authorities does not divest the owners of their
rights in the property. Mr. Patil submits that the notice under
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section 10(5) is held to be mandatory. It is only when a person
refuses or fails to comply with the order therein that the
competent authority may take possession of the vacant land or
cause it to be given to the concerned State Government or to any
person duly authorised by such State Government in this behalf
and may for that purpose use such force as may be necessary.
Mr. Patil relies upon the additional affidavit to submit that there
is a notice issued to Mr. Vasant Bhandari. However, there is an
endorsement that because the address was incomplete, it could
not be served. Then, Mr. Patil relies on page 361 of the original
record to submit that possession of some slums was taken. There
were never any slum on the property. There is yet another letter
th
written on 13 October, 2006 that the possession of the land was
th
taken on the date mentioned in the notice, namely, 18 October,
2006. If the notice indicates that the possession was to be taken
st th
on 31 October, 2006, then, a letter dated 13 October, 2006
could not have been addressed at all. Even the panchanama and
possession receipt does not bear signature of any person from
whom the possession is taken. There is nothing in that document
which would prove the identity of panchas. There are no
signatures of any panchas on the panchanama. Reliance is also
placed by Mr. Patil on page 499 of the original record. Thus, the
thrust of his submissions is that the possession was not taken and
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which has to be actual physical possession. That was not taken
prior to the repeal of the ULC Act in the State of Maharashtra.
st
Assuming that it was taken on 31 October, 2006, it was taken
within the period of 30 days from issuance of the notice under
th
section 10(5). If that is dated 18 October, 2006, the 30 days'
st
time has not expired on 31 October, 2006. Therefore, obtaining
possession in this manner is contrary to law.
14. There is a compilation of judgments tendered by Mr. Patil,
including a judgment delivered by a Division Bench of this court,
to which both of us were party, in the case of Adi Dara Patel and
1 nd
Ors. vs. Mr. S. R. Jondhale , decided on 22 April, 2016. He
would submit that the said judgment is distinguishable on facts.
He relied upon the view taken by another Division Bench of this
court in the case of The Bank of Baroda Employees Arunoday
2 st
Co.op. Hsg. Soc. Ltd. vs. State of Maharashtra , decided on 21
November, 2011 to submit that this court has endorsed the view
taken therein and held in Adi Dara Patel (supra) that the Bank of
Baroda case (supra) is distinguishable on facts. However, in the
present case the dictum in Bank of Baroda (supra) applies and
the view taken in Adi Dara Patel (supra) is distinguishable on
facts. Therefore, this judgment and order would not bind this
court.
1 Writ Petition No. 1468 of 2009
2 Writ Petition No. 2119 of 2008
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15. On the other hand, the learned AGP submits that consistent
with the affidavit in reply, it is evident that none of the owners
are coming forward. As usual and found in Adi Dara Patel's case
(supra), the builders and developers interested in challenging the
concluded proceedings under the Principal Act file such petitions
belatedly. In the present case, if the possession is taken as early
st
as on 31 October, 2006 and the land vests in the State, then,
th
filing of a writ petition on 27 November, 2013 would show that
the owners were never interested. They never came forward and
challenged the concluded proceedings. Some people enter into an
agreement in relation to the lands which are declared as surplus
vacant lands and vesting in the State. It is they who then
proclaim that the owners never received any notice and are,
therefore, aggrieved by the fact that the ULC Act has deprived
them of their right, title and interest in the property. Mr.
Upadhye submits that this court, therefore, should view such
cases with circumspection and with doubt. The claim should be
genuine and bonafide. We should not mechanically accept the
facts narrated and particularly when there is suppression and
keeping back of vital and crucial documents. Hence, he would
submit that this court must rely on the fact that the official
record speaks for itself. There is already, in the file, an order
passed under section 8(4) of the ULC Act. That records that the
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properties have been inherited by Vasant Bhandari and and
Gunjubai and other heirs of late Manik Dhulya Bhandari, who
died in 1969. As per the draft statement, land admeasuring
9522.9 square meters was provisionally declared as surplus
vacant land. That was provisional. The preliminary hearing into
rd
the draft statement was fixed on 23 July, 1986. During the
hearing, one Rangnekar, authorised architect appeared and
stated that he has submitted written objections to the draft
st
statement vide his letter dated 21 July, 1986 and requested for
consideration of the same. It is that written objection, which
contains this stand and dealt with in the order under section 8(4)
of the ULC Act. However, while scrutinising the objections and
contentions of the surplus vacant land holders, the competent
authority found that in the draft statement, the declarants were
allowed to retain land admeasuring 1000 square meters out of
CTS Nos. 571, 23/6 of Valnai. However, the declarants have
requested to allow them to retain the land bearing CTS Nos. 574,
575/1, 575 and 576 towards the plinth, land appurtenant and
additional land appurtenant of the existing authorised structures.
The order states that the certified true copy of the city survey
plan was perused. That records that the structure bearing CTS
Nos. 574 and 575/1 are shown in black ink in the city survey
plan. These structures can be accepted as authorised and the
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area under structures, land appurtenant and additional land
appurtenant can be considered. The declarants are therefore
allowed to retain land admeasuring 1719.9 square meters
comprised in CTS Nos. 574, 575, 575/1 and 576 of Village Valnai.
The remaining land admeasuring 280.1 square meters is allowed
from CTS No. 571. It is in these circumstances and by excluding
certain land bearing Survey No. 24/4 holding was declared in
terms of the order. By that order, 7717.3 square meters is
declared as surplus vacant land, according to the learned AGP.
The final statement under section 9 and the notification under
th
section 10(1) was directed to be issued vide order dated 29
October, 1986.
16. It is in these circumstances that the learned AGP would rely
on the order passed in revision under section 34 of the ULC Act.
That was on the basis of the revision application filed by Budhaji
Dhulya Bhandari and others. The revision application claimed
that they should be allowed the benefit of ceiling limit in addition
to the area of the land treated as non-vacant on account of
authorised residential structures from CTS Nos. 574, 575, 575/1
and 576. The revisional authority perused the entire original
record, according to Mr. Upadhye and passed a detailed order.
That detailed order, copy of which is annexed to the affidavit in
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reply, directs that the order under section 8(4) is set aside and
the competent authority is directed to issue a revised final
statement under section 9 in the light of observations therein and
after offering an opportunity to the revisional petitioners to
indicate their choice in respect of the retainable land
admeasuring 5500 square meters. The competent authority
would be at liberty to adopt further steps. The learned AGP
produces the relevant record and to indicate as to how on the
basis of the observations and findings in the revisional order the
revised final statement was issued and thereafter the notification
under section 10(1) was issued. Further, declaration under
section 10(3) was issued and which was duly published in the
th th
official gazette on 24 April, 2006. On and from 8 May, 2006,
the surplus vacant land is deemed to have vested in the State.
The learned AGP, therefore, submits that there is complete record
as to how the possession of this land was taken after issuance of
notice under section 10(5). None of the Bhandaris or partners of
M/s. Skyline Builders raised any objection to these proceedings.
st
On 31 October, 2006, the possession receipt is prepared. The
possession of land was taken on that date. The signature of one
who has taken over possession, appears on the document. If the
panchanama is also perused, it would be evident that no fault can
be found therewith. The Skyline Builders, who claim to be
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constituted attorney of the owners are happy of the revisional
order. If the petitioner came into the picture only after the two
th th
agreements dated 4 April, 2006 and 16 April, 2006, which are
executed after 16 years of the revisional order, then, it is clear
that the petitioner is suppressing the relevant and material facts.
He could not have deposed about the correctness, legality and
validity of proceedings which concluded with final statement
th
under section 9 on 11 June, 1990. Once the property was not
retainable by the original owners and is liable to be handed over
to the ULC authority and throughout the petitioner does not show
as to how he is in physical possession of the property, then, all the
more this court should, following the judgment in Adi Dara Patel
(supra), dismiss the writ petition. There are clear disputed
questions of fact. The property has vested in the State and is now
completely in its domain. The property register card is issued on
th
6 November, 2006. Belatedly and as an afterthought, none of
the orders can be questioned. Once there are publication of
declaration and notification in the official gazette, then, its
contents cannot be questioned.
17. After perusing the writ petition and all the annexures
thereto so also the original records, the legal provisions and the
decisions brought to our notice, we are of the view that the writ
petition deserves to be dismissed.
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18. Our reasons follow.
19. The petitioner has, in the body of the petition itself, stated
that he is carrying on business. He is carrying on business
possibly of building and developing the properties. The
petitioner, surprisingly, in para 2 of the petition, states that he is
the constituted attorney of Gunjubai Manik Bhandari and others,
who are owners of the property. The petition concerns the
property bearing Survey No. 20, Hissa No. 13, CTS No. 531. In
th
the final statement dated 11 February, 1990, the details of the
vacant land which the person desires to retain are indicated in
part 'D'. That refers to Village Valnai, Taluka Borivali and Survey
Nos. are 23/4, 23/6 and corresponding city survey numbers.
5500 square meter land was claimed by the owners to be
retainable land. Survey Nos. 23/15, 20/13, 23/9, 23/6, 23/11
and 23/15 with corresponding survey numbers and admeasuring
5195.9 squarer meters is indicated in part 'F' of this statement as
identity of lands to be surrendered. It is, therefore, undisputed
that Vasant Manik Bhandari and other did not desire to retain
this land, but agreed with the direction and order preparing the
final statement. We have to consider the grievance of a person
who has dealt with the excess vacant land. Pertinently, the
petitioner does not state in the writ petition anything, but its title
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indicates that he is not the constituted attorney of the
Bhandaris'/original owners alone but all partners of M/s. Skyline
Enterprises. The petitioner, in para 3 of the petition shows that
the property in question, which is admeasuring about 1367.3
square meters, which is the area of CTS No. 531, was declared to
be retainable land. However, the records speak otherwise. This
is not the retainable land, but clearly a surplus vacant land and
forming part of the larger area of 5195.9 square meters. Yet, the
petitioner proclaims in the further part of this petition that the
final statement under section 9 was prepared. In para 4, the
petitioner states that the said statement attained finality and has
not been altered, amended or modified by any order. We are
sorry to state that this is a misleading and factually incorrect
statement to say the least. If the affidavit in reply and original
record, which was allowed to be perused by the petitioner's
counsel reveals that M/s. Skyline Enterprises obtained some
authorities from the original owners, filed revision application
and invoked the jurisdiction of the State under section 34 of the
ULC Act, then, in the absence of any contrary document on
record, we cannot accept the statement or version of the
petitioner or his counsel. It is incorrect, therefore to urge that
the petitioner obtained any right in relation to a retainable land.
The petitioner dealt with a surplus vacant land with open eyes.
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The petitioner was aware that Skyline Builders entered into an
agreement for development of the land with Gunjubai and others.
nd
That was an agreement dated 22 April, 2002 and copy thereof is
annexed as Annexure 'B' to the petition. If one peruses Annexure
'B', it is evident from the same that the schedule thereto refers to
all that piece and parcel of land or ground bearing Survey No. 20,
Hissa No. 13 admeasuring 14.1/4 gunthas equivalent to 1367.3
square meters as per property card with four structures. It is
stated in first schedule of this agreement, which has been signed
by Babu Bhaskar Bhandari and others and Hasmat Jamal
Ghanchi and Abdul Latif Shaikh that the said land was owned by
one Manik Bhandari. It is stated that Gunjubai and others
appeared to have agreed to sell the larger property to one M/s.
Jagruti Construction in the year 1979. This property is described
at page 27 in recital (a). In recital (d), however, it is conceded
that the agreement with M/s. Jagruti Construction has not been
acted upon and abandoned. That is barred by limitation and not
enforceable in law. The owners are seized and possessed of or
otherwise well and sufficiently entitled to the said larger property
along with four structures standing thereupon. These owners
were desirous of assigning the development rights in respect of
the said property upon the portion of the said larger property to
the developers subject to owners rights to retain with the owners
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other portion of the said larger property along with the said four
structures by allowing the developers to utilise the entire
permissible FSI of the said larger property excluding the FSI
already consumed by the said four structures. The agreement
nd
then contains the covenants. This agreement is dated 22 April,
2002. Pertinently, this agreement does not refer to any
proceedings under the ULC Act. It is, therefore, a very contingent
and a doubtful right to say the least surviving in the owners,
which the petitioner seeks to obtain from M/s. Skyline
Enterprises. It is stated in para 6 of the petition that M/s. Skyline
Enterprises was not in possession of the property. Thereafter,
they assigned the said property for development to the petitioner
vide two separate development agreements referred in para 6 of
the petition, copies of which are annexed as Annexure 'D'
collectively to the petition. How the petitioner, thereafter,
obtained the Intimation of Disapproval / Commencement
Certificate (IOD/CC) from the Municipal Corporation of Greater
Mumbai and made construction on the property, when it had not
only vested in the State, but possession of which was already
taken, as is evident from the documents produced and relied
upon by Mr. Upadhye, has not been clarified to us at all. The
petitioner claims to be in physical possession and relies upon the
photographs to show the same. However, what we have from the
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memo of the petition itself that it contains guarded statements
about possession of the petitioner. The petitioner does not refer
to the entire factual position and as emerging from the record. He
refers to documents selectively, but does not disclose several
others, which are relevant and material. There is substance in
the contentions of the learned AGP, therefore, that the petition
ought to be dismissed for suppression of relevant and material
facts.
20. However, the petitioner's counsel having argued and very
vehemently on the basis of the record that the possession of the
property was never taken prior to the repeal of the Act coming
into force in the State that we considered the same. Firstly, we do
not find how, when the petitioner having openly dealt with not
with the portion of the land styled as retainable, but excess
vacant land, can claim, on the strength of the two development
agreements that he has right, title and interest in the property.
His claim of being in physical possession follows two development
agreements of 2006. Pertinently, the date of these two
th
agreements has to be noted. They are dated 4 April, 2006 and
th
16 April, 2006. The agreement with M/s. Skyline Enterprises
th
and Bhandaris' is dated 22 April, 2002. The record reveals that
the notification under section 10(1) was published in the official
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th
gazette. That was dated 6 May, 2000, but published in the
th
official gazette on 12 October, 2000. The land was thus to be
vested in the State. There is a contemporaneous record of this
publication in the order of the Additional Collector and Competent
th
Authority under the ULC. That is dated 16 July, 2005. That
concerns cancellation of an order under section 20 of the ULC
Act. That order was passed on the application of one Lancelot
D'souza, who is the power of attorney holder. He is the power of
attorney holder of Vasant Manik Bhandari. Thereafter, what we
th
find is that there is a declaration published on 24 May, 2006
under section 10(3) of the ULC Act. That vests the land with
th
effect from 8 May, 2006 in the State. Thus, the surplus vacant
land, which includes the petition land vests in the State from this
date. Knowing fully well the legal consequences flowing
therefrom that M/s. Skyline Enterprises and the petitioner
entered into a deal. Once they entered into a deal in relation to
the land vested in the State, then, we must, as rightly submitted
by the learned AGP, be circumspect and careful in accepting the
version of the petitioner. More so, when the original owners or
M/s. Skyline Enterprises have never controverted the record and
papers therein.
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21. What we have, therefore, on record is the submission made
by the petitioner, who is stated to have entered upon the property
pursuant to the development agreement in favour of M/s. Skyline
Enterprises. M/s. Skyline Enterprises and the petitioner,
therefore, have clearly connived at bringing about a situation
where a land vesting in the State completely is taken away from
its control and domain. The petitioner, therefore, claims in the
writ petition and in the additional affidavit that no notice was
issued to Vasant Bhandari. However, what we have and very
carefully perused is the State's record. That record contains a
th
letter dated 13 October, 2014 from the petitioner and addressed
to the first respondent to this writ petition. The subject of this
letter is rectification of acquisition of non-surplus vacant land
under section 10(1), 10(3) and 10(5) of the ULC Act. That is a
rd
letter received on 3 November, 2014. In that letter, after
setting out as to how the petitioner has knowledge of the
proceedings under the ULC Act, surprisingly, mentions that an
th
order under section 8(4) was passed on 29 October, 1986.
th
Notification under section 10(1) was issued on 7 April, 2000
th
and revised ULC order was passed on 27 March, 2002. The
petitioner refers to the second notification under section 10(1)
th
issued on 24 April, 2006. Pertinently, it refers to a notice under
th
section 10(5) dated 18 October, 2006, but the petitioner states
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that this notice is asking him to deliver possession of surplus
st
vacant land to the Government on 31 October, 2006. If the
owner has not received any such notice till the date of addressing
th
this letter of 13 October, 2014, then, how it is the petitioner who
makes a reference to a further step and which is claimed to be of
approval of plan, grant of C. C. etc. If the surplus vacant land was
dealt with in this fashion by the petitioner, then, he knows that it
was not and could not have been ever transferred to him. The
th
petitioner has referred in this letter to the notice dated 18
October, 2006 asking delivery of possession to the Government
st
on 31 October, 2006. However, conveniently refers to it as
addressed to him. Even if it is addressed to him, then, it is
th
apparent that on 13 October, 2014 and much after lodging of
this writ petition, the petitioner was aware that the surplus
vacant land was taken over by the competent authority and he
could not establish that lack of requisite notice. We have clearly
noted from the scheme of the Act as to how section 10(1)
contemplates an issuance of a notification, whereupon, section
10(2) follows. Section 10(3) is a declaration which is to be issued
by the competent authority and containing the deemed date of
vesting. We are, therefore, not surprised that such petition is one
more in the series of litigation of builders and developers, who
obtain some records and conveniently suppressing others, claim
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before this court that the possession of the land was not taken
from the owner or person in possession prior to the Repeal Act
coming into force. The surplus vacant land has already vested in
the State. The petitioner does not even stop at this, but goes
th
ahead and addresses letter dated 10 June, 2015 to the Chief
Minister of the State.
22. The petitioner claims that he is entitled to apply for
cancellation of the entry in the property register card. The Chief
Minister's office is prompt in directing the authorities to offer its
comments on the request of the petitioner. What we find is that
all this is an afterthought and particularly upon dismissal of two
Special Leave Petitions by the Hon'ble Supreme Court of India.
The last dismissal order being in the case of Bank of Baroda
(supra). However, what we find is that though the petitioner is
aware of the proceedings and concluded under the Principal/ULC
Act has challenged the validity of the proceedings on the ground
of absence of notice to the Bhandaris/M/s. Skyline Enterprises.
M/s. Skyline Enterprises has not made any such claim. What we
find that from the documents and which are relied upon by Mr.
Patil from the original record is that he says that endorsement at
page 499 would show that the notice under section 10(5) has not
been served. He relies upon the endorsements in the negative.
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However, these endorsements have to be read in their entirety.
Against several columns, there are entries made. As against
query that whether notice under section 10(5) has been served
on the Bhandaris, the entry is 'Yes'. Whether the notice has been
duly served and delivered, the entry is 'Yes'. Whether the holder
has expired or otherwise, the endorsement states that he has not
expired. The notice has been served by hand delivery. It is
clearly stated that there is no signature on the panchanama nor
does the same bear the name of the panchas. However, there is a
letter from Rajiv Harmalkar and Company at page 501 of the
th
original record dated 13 March, 2012. That is addressed on
behalf of the client Rajiv Harmalkar, who is the consulting
architect of Hasmant J. Ghanchhi, partner of M/s. Skyline
Enterprises. He states that his client has obtained area of
1367.30 square meters of CTS No. 531 as a land within ceiling
limit. However, para 1 of this letter states that it is the land
within ceiling limit and not surplus vacant land. On the basis of
this stand, M/s. Skyline Enterprises obtained approvals from
Muncipal Corporation of Greater Mumbai and got the plans
approved. It is M/s. Skyline Enterprises who has constructed the
plinth of the building. Thereafter, when it approached the
concerned City Survey Office for obtaining the information of the
property card, it found the name of the Government of
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Maharashtra as owner. Pertinently, File No. 1, which is reference
no. 1 of this letter is nothing but an order under section 8(4)
th
dated 29 October, 1986, which revealed to this Hashmant
Ghanchi how the Government's name has been entered as owner.
He says that there are two numbers of 6(1) cases/files in
existence and two orders under section 8(4) have been issued by
the Department, namely, the competent authority. In one of the
said files, the area of Cts No. 531 has been shown as surplus
vacant land and in another file the same area has been shown as
W. C. L. For the same land, there should not be two orders under
same section of the ULC Act. When the competent authority
issued second order, it should have verified from record of the
office whether application filed under section 6(1) was in
existence or not for the same land and same family, namely,
Gunjubai Bhandari and others. Therefore, there is a mistake on
the part of the competent authority in passing two orders for the
same land. However, he gives up this claim and states that he is
ready to pay ready reckoner value of the land of 2002. The
values of the land, therefore, should be informed to him and
thereafter, steps should be taken to cancel the notices under
sections 10(3) and 10(5) and inform the City Survey Officer to
delete the name of the Government. He annexes the area
statement. Therefore, M/s. Skyline Enterprises was aware that
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there are notices issued under section 10(5). They are aware
that the land is surplus vacant land. They are aware by their own
th
letter, through their constituted attorney dated 13 March, 2012
that the land has not only vested in the State but the actual
physical possession thereof has already been taken. They
question none of the steps. It is surprising that they continue to
deal in the land despite the agreements in favour of the
petitioner. Far from there being two orders under section 8(4) of
the ULC Act, we have two versions and completely divergent,
from two builders and developers, who are interested in the
property. It is very unfortunate that people are bold enough to
make assertions never made by the owners. The version of
builders are based on perusal of some record and they claim that
the lands have not vested in the State and prior to the repeal of
the ULC Act. There is a letter in the file and detailed
correspondence with Premnivas Tenant Association. They also
evinced interest in the land and they were ready to pay ready-
reckoner price as well.
23. We are, therefore, not in agreement with Mr. Patil that the
possession of the land was not taken. In the file, in fact, there are
clear proceedings and which would indicate that not only the
possession was taken, but measures were initiated to pay
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compensation. There is an order passed under section 11(7) read
with 14 of the ULC Act in that regard. Once the original record
comes before the court and it is allowed to be perused by parties,
then, we find that there is a clear advantage. When we find the
entire and bulky record has not been perused carefully even by
the deponent of the affidavit filed on behalf of the respondents
before us, then, it is unsafe and unwise to rely upon only that
affidavit. That is why we called for the original record.
24. The original record, therefore, reveals that at no point of
time Bhandaris have any objection to the proceedings under the
ULC Act. They were happy with the revised order passed. There
th
is a clear reference to the revised order dated 27 March, 2002 in
the file. However, that is not only concerning the subject land.
That relates to claim of Hashmant Ghanchi. Hashmant Ghanchi,
claiming as a declarant, has filed a declaration relating to these
lands and on the basis of statement under section 6(1) and after
preliminary inquiry, measurements and draft statement under
section 8(2) of the ULC Act calling upon the owners to prefer
objections to the said draft statement. There was a hearing held
th
on 26 March, 2002. The proceedings were closed thereafter.
What we find is that the final statement came to be prepared. As
far as the remarks in the final statement are concerned, we do
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not think that the said Hashmant Ghanchi, though a recipient of
the order passed and styled as revised order under section 8(4)
of the ULC Act, has taken any advantage of the endorsement or
the prior observations flowing from this order. It is, therefore,
evident that the land, which is subject matter of the petition is a
surplus vacant land, in relation to which, all the proceedings have
been concluded. They have been concluded prior to the repeal of
the ULC Act coming into force is also evident. The petitioner
cannot make much capital of the date in the letter at page 359 of
th
the record. The date is 13 October, 2006. However, that is a
clear typographical error. Vide the letter, the City Survey Officer
is informing the Additional Collector and Competent Authority
that after his communication was received, the steps have been
taken by the City Survey Officer. He personally visited the site
and took possession of the surplus vacant land. The further steps
have also been taken to enter the name of the Government in the
property register card. He is forwarding the relevant documents
and the endorsement in the property register card for
information of the Additional Collector. This letter bears the
signature of the City Survey Officer and below the signature, the
th
date written is 13 November, 2006. The competent authority
th
has stamped the acknowledgment date/date of receipt as 20
November, 2006. Therefore, it is not as if the possession of the
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th
land was taken on 13 October, 2006. The documents
accompanying this communication would show that there is a
record of the possession at site. The record indicates that the
st
notice was duly served. The possession was taken on 31
October, 2006. On the date on which possession was taken, there
were huts or slum like structures on the property. Therefore, it is
not as if it is a slum area, much less a declared slum. There is a
panchanama and also a possession receipt. True it is that the
panchanama does not indicate the names of the panchas nor
contains their signatures, but the possession receipt clearly
refers to all the details, including the signature of the officer
taking possession. This contemporaneous record must be
perused in its entirety. One single document cannot be read in
isolation. It is apparent that notice under section 10(5) was duly
prepared and served. It was sought to be served on Vasant Manik
Bhandari. The record indicates that the address was incomplete.
However, pursuant thereto, the notice came to be served and that
is also apparent from the version appearing in the letter
addressed by Hashmant Ghanchi to the State. It is clear that the
file contains another endorsement and which is the further notice
th
dated 9 January, 2007 directing the Bhandaris and Vasant
Manik Bhandari to remain present for the proceedings to
determine the compensation. In this notice, it is stated that
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st
possession of the land was taken on 31 October, 2006 in the
absence of the said Vasant Bhandari and ex-parte. Pertinently,
th
on 29 January, 2007, the petitioner, as constituted attorney of
Gunjubai and others addressed a letter to the competent
authority and stated in the same as under:-
“Respected Sir,
We are Power of Attorney holders of Mrs. Gunjubai Manik
Bhandari and others who are the owners of land in Malad
bearing S. No. 20 H. No. 13, CTS No. 531 of village Valnai,
Taluka Borivali admeasuring 1367.30 Sq. Mtrs.
We had applied for ULC NOC on 13/8/1976 and
accordingly we had been issued an order u/s 8(4) of the
ULC (C & R) Act bearing ULC NOC No: C/ULC/6(i)/D-
XV/SR-IX-872/78 dated 27-3-2002 by your office under
which the above land is mentioned as NON-SVL land, a
copy of which we are attaching herewith as Annexure-I
for your kind reference.
But to our surprise, when we applied for a fresh P. R.
Card, we came to know that the said above land is
acquired by Maharashtra Government as per your order
issued u/s 10(5) of ULC (C & R) Act of 1976 under the
ULC No: C/ULC/D-V/SR/X 923/930.
The layout plans for the above said land is already
approved under CHE/1220/LOP and the approval of
building plans is already in process under
CHE/8329/BP(WS) AP and the scrutiny fees for the same
has already been paid.
We cannot understand as to how a NON-VSL land can be
defined as SVL in the same department with a different
ULC file number and it gets acquired under the same
different ULC file number. We would like to protest
against the same and request you to kindly look into the
matter urgently and set aside the said order.
This land is already sold to us through registered
Development Agreement and the acquisition of the above
said land is bad in law.
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Kindly give us a hearing for the above matter for the sake
of justice before paying the compensation for acquisition
for the said land to any parties representing the above
said land.
Sincerely,
Mr. Pankaj S. Parikh
C. A. to Mrs. Gunjubai Manik
Bhandari and Others.”
25. This would clearly indicate that the petitioner was aware of
the proceedings. In none of these communications emanating
from the petitioner, it is asserted that the physical possession is
with him. Once there has been no objection or complaint from the
original owners nor have they questioned the legality and validity
of the concluded proceedings under the Principal Act, then, we
cannot accept the arguments of Mr. Patil. We are satisfied from
the perusal of the record and which must be seen in its entirety
that due compliance was made with all the legal provisions,
including section 10(5) of the Act.
26. This is a case covered by the judgment in the case of Adi
Dara Patel (supra). One paragraph thereof cannot be read in
isolation. In Bank of Baroda's case (supra), it was held on facts
that the possession was not taken from the petitioner, who was in
physical possession prior to the repeal of the Principal Act in the
State. At the same time, in the case of Adi Dara Patel (supra), the
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Division Bench makes a reference not only to the case of State of
3
U. P. vs. Hari Ram , but also the later judgment of the Hon'ble
Supreme Court of India which in terms holds that much capital
cannot be made of the documents not indicating and in clearest
terms whether physical possession was obtained or not. This
court has referred to that judgment as well. That judgment
clearly makes reference to Hari Ram's case (supra) and all prior
decisions, including on the point of taking possession.
27. It is in these circumstances and when it is conceded that
there is no form prescribed for panchanama as also possession
receipt, then, all the more, we have no hesitation in rejecting the
contentions of the learned counsel appearing for the petitioner.
Moreso, when his version is not truthful and honest, suppression
of material facts is writ large in these proceedings.
28. As a result of the above discussion, the writ petition fails.
Rule is discharged. However, there would be an order to pay
costs quantified at Rs.1 lac to be paid by the petitioner within a
period of six weeks from today to the respondents. Else, and in
default, the same be recovered as arrears of land revenue.
3 (2013) 4 SCC 280
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29. The original records shall be returned to Mr. Upadhye
provided Mr. Upadhye replaces the same with certified true
copies.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1357 OF 2014
Mr. Pankaj S. Parikh }
Age: 57 years, Occ. Business, }
Residing at 303, Vikas }
Chamber, Link Road, }
Mith Choky, Malad (W), }
Mumbai 400 064. } Petitioner
versus
1. The Additional Collector }
and Competent Authority }
th
(ULC), 5 floor, }
Administrative Building, }
Near Chetana College, }
Bandra (E), Mumbai 400 051}
}
2. The State of Maharashtra }
through its Urban and }
Revenue Department }
400 051 }
}
3. The City Survey Officer }
Goregaon, Mumbai }
summons be served through }
the AGP, Bombay High Court,}
Mumbai 400 023 } Respondents
Mr. Sandesh D. Patil for the petitioner.
Mr. Manish Upadhye – AGP for
respondent nos. 1 to 3.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- SEPTEMBER 21, 2016
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ORAL JUDGMENT:- (Per S. C. Dharmadhikari, J.)
1. Heard the learned counsel appearing for the parties. Rule.
Respondents waive service. By consent Rule made returnable
forthwith.
2. By this petition, under Article 226 of the Constitution of
India, the petitioner seeks a declaration that respondent nos. 1
and 2 have no right, title and interest in a immovable
property/land bearing CTS No. 531, Survey No. 20, Hissa No. 13
of Revenue Village Valnai, Taluka Borivali, District Mumbai. The
consequential directions are to delete the name of the second
respondent from the property register and/or card and substitute
it with that of the petitioner.
3. The proceedings are under the then Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as “the ULC
Act”). The petitioner in this writ petition claims to be a
constituted attorney of one Hasmat Jamal Ghanchi and Abdul
Latif K. Shaikh. They are partners of M/s. Skyline Enterprises.
At the same time, the petitioner claims to be the constituted
attorney of one Babu Bhaskar Bhandari and others. The
respondents to this petition are the State of Maharashtra and the
competent authority under the ULC Act.
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4. It is the case of the petitioner that the Bhandari family was
the owner of this land and some others. The petitioner is,
however, concerned with the above described land. It is stated
that one Smt. Gunjubai Manik Bhandari and others had filed a
return and on the basis of statements under section 6(1) of the
ULC Act so also some preliminary inquiry and measurement, a
draft statement under section 8(2) of the ULC Act was drawn.
The objections were invited and ultimately, an order was passed
under section 8(4) of the ULC Act. As per the said order, the
above land and to the extent of 1367.3 square meters was
declared to be retainable property. The balance was abviously
surplus vacant land. After taking into consideration the
statement under section 8(4), a final statement under section 9
was prepared. It is the case of the petitioner that this statement
has attained finality. It has not been altered, amended or
modified by any order. The petitioner submits that the retainable
property was dealt with by Gunjubai Bhandari and others. They
entered into an agreement with M/s. Skyline Enterprises dated
nd
22 April, 2002. It was duly registered in the office of the Sub-
Registrar of Assurances, Borivali. Smt. Gunjubai and others
executed a power of attorney in favour of M/s. Skyline
Enterprises which includes a power to appoint any other person
as their agent/attorney. The said M/s. Skyline Enterprises was
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not in a position to develop the property. It assigned the property
for development purpose to the petitioner vide two separate
th th
development agreements dated 4 April, 2006 and 16 April,
2006. Two separate power of attorneys were also executed in
th
favour of the petitioner on 16 April, 2006. Both the agreements
as well as the power of attorneys were duly registered in the
office of the Sub-Registrar of Assurances, Borivali, Mumbai. The
reason for division of the property was that there were two
separate agreements. The petitioner states that in pursuance of
the development agreement he applied for permission for
development of the said property. An Intimation of Disapproval
rd
(IOD) was granted on 3 March, 2007. The petitioner claims that
the Municipal Corporation also sanctioned the plans and granted
th
commencement certificate dated 26 April, 2007. Pursuant to
this permission, the petitioner made construction of plinth level
in this property/land.
5. It is the case of the petitioner that there is no voluntary
surrender nor the petitioner was forcibly dispossessed. The
petitioner is in possession. It is the case of the petitioner that
when the petitioner applied for and obtained the property card in
relation to this land, it was revealed that the name of the State of
Maharashtra is entered therein. That is because a letter of
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th
possession dated 18 October, 2006 was issued, pursuant to
which, this name was inserted.
6. The claim of the petitioner is that after obtaining
information regarding the proceedings under the ULC Act, it was
revealed that the competent authority had issued one letter dated
th
18 October, 2006 in the name of Vasant Manik Bhandari. That
is styled as a notice under section 10(5) of the ULC Act, thereby
st
calling upon the addressee to surrender the property on 31
October, 2006 at 2.30 p.m. There is no endorsement on the notice
that it is served. It is stated that the respondents have contended
before the municipal authorities that the State Government's
name is entered in the property card on the basis of this notice.
Thus, barring this notice or a self styled document, there is no
proof of the possession having been surrendered on the date
st
mentioned in the notice, namely 31 October, 2006. There is
nothing to suggest that the petitioner's possession of the property
was disturbed. Once, except this document, there is nothing on
record to indicate that the possession of the land was taken prior
to the repeal of the ULC Act in the State of Maharashtra with
th
effect from 29 November, 2007, then, the declaration as prayed
be granted.
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7. Mr. Patil learned counsel appeared before us for the
petitioner and raised several contentions. Before we refer to
them, it would be appropriate to peruse the contents of the
affidavit in reply filed by respondent nos. 1 and 2. It is filed by
the Additional Collector and Competent Authority (ULC). He is
deposing on the basis of the original record. He states that the
petitioner does not have any cause of action to approach this
Court. He has not approached this court with clean hands. The
writ petition suppresses relevant and material facts and is,
therefore, liable to be dismissed.
8. It is stated that one Vasant Manik Bhandari submitted/filed
th
statement under section 6(1) of the ULC Act on 13 August,
1976. That statement was made on behalf of Vasant Bhandari.
That statement led to an order being passed by the ULC Autority
th
under section 8(4) of the ULC Act dated 29 October, 1986. That
was challenged by filing a revision application under section 34 of
the ULC Act by M/s. Skyline Builders as constituted attorney of
th
original owners on 6 February, 1990. The petitioner has
acquired purported development rights from M/s. Skyline
Builders by two separate development agreements. That was
despite the fact that the property was not exempted under the
ULC Act. The concerned authority passed an order on the
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th
revision application dated 6 February, 1990 and directed that a
final statement be issued. That is how the final statement under
th
section 9 was issued on 11 June, 1990. Thus, the property was
not retainable by the original owners, but liable to be handed over
to the ULC authorities. Despite knowing these facts, the
petitioner executed an agreement with the said M/s. Skyline
Builders and being fully aware of the proceedings under the ULC
Act is bound by the same and cannot seek relief contrary to it. It
is stated that the entire procedure under the ULC Act was
followed and a notification was published in the official gazette
th
under section 10(3) of the ULC Act on 25 May, 2006. On
publication of such notification, the land vests in the Government.
There is nothing more required to be done. Thereafter, the
competent authority issued notice to original owner Vasant
Manik Bhandari and others to surrender and deliver possession
th
of the land. That notice is dated 18 October, 2006. The co-
owners, however, did not bother to comply with the notice. The
st
possession of the land was taken over on 31 October, 2006. The
authorities prepared a panchanama of the land and took over
th
possession. It is thereafter on 6 November, 2006 that the name
of the State Government was entered in the property register
card. In para 16 of this affidavit, it is asserted that the petitioner
was not in possession of the said land. The possession has
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already been taken over and prior to the repeal of the ULC Act.
Therefore, the repeal of the ULC Act does not affect the
proceedings in any manner. The petitioner has misled the
authorities and suppressed the filing of statement under section
8(4) of the ULC Act as also the revisional order. The petitioner
was well aware that the land is declared as surplus vacant land
th
and yet, by misguiding the authorities, got the order dated 27
March, 2002 (Exhibit-A to the petition). It is stated in para 20 of
this reply affidavit as under:-
“20. It may be further pertinent to note that one M/s.
Rajiv Harmalkar and Company appointed by the
th
Petitioner had vide Application dated 13 March, 2012
stated that their client was ready to pay the market value
of the area admeasuring 1098.25 square meters
excluding the area of DP Road admeasuring about 269.05
square meters. Accordingly the proposal for the aforesaid
Application has been submitted with a detailed report to
the Urban Land Development Department, State of
th
Maharashtra on 30 March, 2012 and necessary action
has been requested to be taken by the Authorities. The
outcome of the said Application has been awaited.
However, in view of the said Application, it is very clear
that the Petitioner has no ground to challenge and not
entitled to any relief and if at all the State Government to
th
decide on the Application dated 13 March, 2012, the
necessary action shall be taken on the basis of Orders
passed therein.”
9. On the basis of the above assertions, it is claimed that the
writ petition be dismissed.
10. After this material was placed before us on the earlier
occasions and brief submissions were canvassed by Mr. Patil, we
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passed an order directing production of the original record. A
Division Bench, of which, one of us (S. C. Dharmadhikari, J.) was
th
a party, directed on 12 August, 2016 that the original record be
produced so as to consider the submission of the petitioner that
physical possession was never taken prior to the date of the
repeal of the ULC Act in the State of Maharashtra. The original
nd
records were produced and on 2 September, 2016 we passed a
further order allowing the petitioner to inspect the same by
seeking appointment with the Registrar, High Court (Original
Side). The matter was placed for passing orders today. Today as
well, an affidavit styled as additional affidavit of the petitioner
was taken on record. That refers to the original record and
certain pages therein. It also refers to certain documents forming
part of the original record.
11. Mr. Patil learned counsel appearing for the petitioner firstly
submitted that in absence of any direction from this court, the
petitioner was not able to obtain copies of the documents in the
original file and record. However, the petitioner would proceed to
argue the case, as he is raising legal contentions on the basis of
the inspection notes and the contents of this additional affidavit.
Mr. Upadhye appearing for the respondents states that he
proceeds on the basis of denials.
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12. Thus, the essential contention of the petitioner's counsel is
that in the absence of any notice and opportunity to the original
owner and as required by the law, it cannot be said that the
possession of the land, which is declared as surplus vacant land,
was obtained. The law, according to Mr. Patil, not only declares
that on issuance of the notification under sub-section (1) the
competent authority may, by notification published in the official
gazette of the State concerned declare by notification published
under section 10(1) with effect from such date as maybe specified
in the declaration, the surplus vacant land/excess vacant land be
deemed to have been acquired by the State Government. Mr.
Patil submits that therefore, on issuance of and publication of the
notification under sub-section (1) of section 10 and thereafter
consideration of the claims of the persons interested in the
vacant land, it is for the competent authority to determine the
nature and extent of such claims and pass such orders as it
deems fit. That is permissible under sub-section (2) of section 10.
After this exercise, by sub-section (3) of section 10, there is
discretion in the competent authority to issue a notification and
publish it in the official gazette so as to vest the excess vacant
land in the State. However, by sub-section (4) of section 10, it is
evident that during the period commencing from the date of
publication of the notification under sub-section (1) and ending
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with the date specified in the declaration made under sub-section
(3), no person shall transfer by way of sale, mortgage, gift, lease
or otherwise any excess vacant land, including any part thereof
specified in the notification and any such transfer made in
contravention of this provision shall be deemed to be null and
void. No person shall alter or cause to be altered the use of such
excess vacant land. Mr. Patil contends, therefore, that the
petitioner's agreements and which have attained finality and
would enable him to substitute or step into the shoes of the
original owners and thereafter maintain this writ petition. There
is, therefore, no substance in the allegation made in the affidavit
in reply that the petitioner has suppressed relevant and material
facts.
13. Apart from this, according to Mr. Patil, even if everything
until the publication of the declaration in the official gazette
under sub-section (3) of section 10 of the ULC Act is legal and
valid, yet, by sub-section (5) of section 10, the vacant land, which
is vested in the State under sub-section (3) has to be taken over.
Meaning thereby, the possession of the same has to be taken over
by the competent authority. For that purpose, it is mandated to
issue a notice in writing ordering any person, who may be in
possession of that land, to deliver possession thereof to the State
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Government or to any person duly authorised by the State
Government in this behalf within 30 days of the service of the
notice. The petitioner has asserted that he was in possession of
the land. His agreements were legal and valid as on the date of
issuance of the notice within the meaning of sub-section (5) of
th
section 10. That is dated 18 October, 2006. However, the
contents of the additional affidavit would demonstrate that the
petitioner was never dispossessed. The notice may have been
issued and a copy thereof is in the file. However, a clear
endorsement in the file would indicate that the notice could not be
served. The remarks in the file are that neither by personal
service nor by registered post acknowledgment due or any other
mode the notice was served as claimed. Further, there is nothing
in the record which would indicate that the panchanama or
possession receipt bears any endorsement of independent
persons. Mr. Patil concedes that there is no particular form
prescribed for obtaining possession or evidencing the same. Yet,
the very purpose of drawing up a panchanama is that the
possession of the property is taken in the presence of two
independent and impartial persons who have nothing to do or are
not concerned with the land. Thus, unilateral or one sided
statement of the authorities does not divest the owners of their
rights in the property. Mr. Patil submits that the notice under
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section 10(5) is held to be mandatory. It is only when a person
refuses or fails to comply with the order therein that the
competent authority may take possession of the vacant land or
cause it to be given to the concerned State Government or to any
person duly authorised by such State Government in this behalf
and may for that purpose use such force as may be necessary.
Mr. Patil relies upon the additional affidavit to submit that there
is a notice issued to Mr. Vasant Bhandari. However, there is an
endorsement that because the address was incomplete, it could
not be served. Then, Mr. Patil relies on page 361 of the original
record to submit that possession of some slums was taken. There
were never any slum on the property. There is yet another letter
th
written on 13 October, 2006 that the possession of the land was
th
taken on the date mentioned in the notice, namely, 18 October,
2006. If the notice indicates that the possession was to be taken
st th
on 31 October, 2006, then, a letter dated 13 October, 2006
could not have been addressed at all. Even the panchanama and
possession receipt does not bear signature of any person from
whom the possession is taken. There is nothing in that document
which would prove the identity of panchas. There are no
signatures of any panchas on the panchanama. Reliance is also
placed by Mr. Patil on page 499 of the original record. Thus, the
thrust of his submissions is that the possession was not taken and
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which has to be actual physical possession. That was not taken
prior to the repeal of the ULC Act in the State of Maharashtra.
st
Assuming that it was taken on 31 October, 2006, it was taken
within the period of 30 days from issuance of the notice under
th
section 10(5). If that is dated 18 October, 2006, the 30 days'
st
time has not expired on 31 October, 2006. Therefore, obtaining
possession in this manner is contrary to law.
14. There is a compilation of judgments tendered by Mr. Patil,
including a judgment delivered by a Division Bench of this court,
to which both of us were party, in the case of Adi Dara Patel and
1 nd
Ors. vs. Mr. S. R. Jondhale , decided on 22 April, 2016. He
would submit that the said judgment is distinguishable on facts.
He relied upon the view taken by another Division Bench of this
court in the case of The Bank of Baroda Employees Arunoday
2 st
Co.op. Hsg. Soc. Ltd. vs. State of Maharashtra , decided on 21
November, 2011 to submit that this court has endorsed the view
taken therein and held in Adi Dara Patel (supra) that the Bank of
Baroda case (supra) is distinguishable on facts. However, in the
present case the dictum in Bank of Baroda (supra) applies and
the view taken in Adi Dara Patel (supra) is distinguishable on
facts. Therefore, this judgment and order would not bind this
court.
1 Writ Petition No. 1468 of 2009
2 Writ Petition No. 2119 of 2008
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15. On the other hand, the learned AGP submits that consistent
with the affidavit in reply, it is evident that none of the owners
are coming forward. As usual and found in Adi Dara Patel's case
(supra), the builders and developers interested in challenging the
concluded proceedings under the Principal Act file such petitions
belatedly. In the present case, if the possession is taken as early
st
as on 31 October, 2006 and the land vests in the State, then,
th
filing of a writ petition on 27 November, 2013 would show that
the owners were never interested. They never came forward and
challenged the concluded proceedings. Some people enter into an
agreement in relation to the lands which are declared as surplus
vacant lands and vesting in the State. It is they who then
proclaim that the owners never received any notice and are,
therefore, aggrieved by the fact that the ULC Act has deprived
them of their right, title and interest in the property. Mr.
Upadhye submits that this court, therefore, should view such
cases with circumspection and with doubt. The claim should be
genuine and bonafide. We should not mechanically accept the
facts narrated and particularly when there is suppression and
keeping back of vital and crucial documents. Hence, he would
submit that this court must rely on the fact that the official
record speaks for itself. There is already, in the file, an order
passed under section 8(4) of the ULC Act. That records that the
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properties have been inherited by Vasant Bhandari and and
Gunjubai and other heirs of late Manik Dhulya Bhandari, who
died in 1969. As per the draft statement, land admeasuring
9522.9 square meters was provisionally declared as surplus
vacant land. That was provisional. The preliminary hearing into
rd
the draft statement was fixed on 23 July, 1986. During the
hearing, one Rangnekar, authorised architect appeared and
stated that he has submitted written objections to the draft
st
statement vide his letter dated 21 July, 1986 and requested for
consideration of the same. It is that written objection, which
contains this stand and dealt with in the order under section 8(4)
of the ULC Act. However, while scrutinising the objections and
contentions of the surplus vacant land holders, the competent
authority found that in the draft statement, the declarants were
allowed to retain land admeasuring 1000 square meters out of
CTS Nos. 571, 23/6 of Valnai. However, the declarants have
requested to allow them to retain the land bearing CTS Nos. 574,
575/1, 575 and 576 towards the plinth, land appurtenant and
additional land appurtenant of the existing authorised structures.
The order states that the certified true copy of the city survey
plan was perused. That records that the structure bearing CTS
Nos. 574 and 575/1 are shown in black ink in the city survey
plan. These structures can be accepted as authorised and the
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area under structures, land appurtenant and additional land
appurtenant can be considered. The declarants are therefore
allowed to retain land admeasuring 1719.9 square meters
comprised in CTS Nos. 574, 575, 575/1 and 576 of Village Valnai.
The remaining land admeasuring 280.1 square meters is allowed
from CTS No. 571. It is in these circumstances and by excluding
certain land bearing Survey No. 24/4 holding was declared in
terms of the order. By that order, 7717.3 square meters is
declared as surplus vacant land, according to the learned AGP.
The final statement under section 9 and the notification under
th
section 10(1) was directed to be issued vide order dated 29
October, 1986.
16. It is in these circumstances that the learned AGP would rely
on the order passed in revision under section 34 of the ULC Act.
That was on the basis of the revision application filed by Budhaji
Dhulya Bhandari and others. The revision application claimed
that they should be allowed the benefit of ceiling limit in addition
to the area of the land treated as non-vacant on account of
authorised residential structures from CTS Nos. 574, 575, 575/1
and 576. The revisional authority perused the entire original
record, according to Mr. Upadhye and passed a detailed order.
That detailed order, copy of which is annexed to the affidavit in
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reply, directs that the order under section 8(4) is set aside and
the competent authority is directed to issue a revised final
statement under section 9 in the light of observations therein and
after offering an opportunity to the revisional petitioners to
indicate their choice in respect of the retainable land
admeasuring 5500 square meters. The competent authority
would be at liberty to adopt further steps. The learned AGP
produces the relevant record and to indicate as to how on the
basis of the observations and findings in the revisional order the
revised final statement was issued and thereafter the notification
under section 10(1) was issued. Further, declaration under
section 10(3) was issued and which was duly published in the
th th
official gazette on 24 April, 2006. On and from 8 May, 2006,
the surplus vacant land is deemed to have vested in the State.
The learned AGP, therefore, submits that there is complete record
as to how the possession of this land was taken after issuance of
notice under section 10(5). None of the Bhandaris or partners of
M/s. Skyline Builders raised any objection to these proceedings.
st
On 31 October, 2006, the possession receipt is prepared. The
possession of land was taken on that date. The signature of one
who has taken over possession, appears on the document. If the
panchanama is also perused, it would be evident that no fault can
be found therewith. The Skyline Builders, who claim to be
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constituted attorney of the owners are happy of the revisional
order. If the petitioner came into the picture only after the two
th th
agreements dated 4 April, 2006 and 16 April, 2006, which are
executed after 16 years of the revisional order, then, it is clear
that the petitioner is suppressing the relevant and material facts.
He could not have deposed about the correctness, legality and
validity of proceedings which concluded with final statement
th
under section 9 on 11 June, 1990. Once the property was not
retainable by the original owners and is liable to be handed over
to the ULC authority and throughout the petitioner does not show
as to how he is in physical possession of the property, then, all the
more this court should, following the judgment in Adi Dara Patel
(supra), dismiss the writ petition. There are clear disputed
questions of fact. The property has vested in the State and is now
completely in its domain. The property register card is issued on
th
6 November, 2006. Belatedly and as an afterthought, none of
the orders can be questioned. Once there are publication of
declaration and notification in the official gazette, then, its
contents cannot be questioned.
17. After perusing the writ petition and all the annexures
thereto so also the original records, the legal provisions and the
decisions brought to our notice, we are of the view that the writ
petition deserves to be dismissed.
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18. Our reasons follow.
19. The petitioner has, in the body of the petition itself, stated
that he is carrying on business. He is carrying on business
possibly of building and developing the properties. The
petitioner, surprisingly, in para 2 of the petition, states that he is
the constituted attorney of Gunjubai Manik Bhandari and others,
who are owners of the property. The petition concerns the
property bearing Survey No. 20, Hissa No. 13, CTS No. 531. In
th
the final statement dated 11 February, 1990, the details of the
vacant land which the person desires to retain are indicated in
part 'D'. That refers to Village Valnai, Taluka Borivali and Survey
Nos. are 23/4, 23/6 and corresponding city survey numbers.
5500 square meter land was claimed by the owners to be
retainable land. Survey Nos. 23/15, 20/13, 23/9, 23/6, 23/11
and 23/15 with corresponding survey numbers and admeasuring
5195.9 squarer meters is indicated in part 'F' of this statement as
identity of lands to be surrendered. It is, therefore, undisputed
that Vasant Manik Bhandari and other did not desire to retain
this land, but agreed with the direction and order preparing the
final statement. We have to consider the grievance of a person
who has dealt with the excess vacant land. Pertinently, the
petitioner does not state in the writ petition anything, but its title
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indicates that he is not the constituted attorney of the
Bhandaris'/original owners alone but all partners of M/s. Skyline
Enterprises. The petitioner, in para 3 of the petition shows that
the property in question, which is admeasuring about 1367.3
square meters, which is the area of CTS No. 531, was declared to
be retainable land. However, the records speak otherwise. This
is not the retainable land, but clearly a surplus vacant land and
forming part of the larger area of 5195.9 square meters. Yet, the
petitioner proclaims in the further part of this petition that the
final statement under section 9 was prepared. In para 4, the
petitioner states that the said statement attained finality and has
not been altered, amended or modified by any order. We are
sorry to state that this is a misleading and factually incorrect
statement to say the least. If the affidavit in reply and original
record, which was allowed to be perused by the petitioner's
counsel reveals that M/s. Skyline Enterprises obtained some
authorities from the original owners, filed revision application
and invoked the jurisdiction of the State under section 34 of the
ULC Act, then, in the absence of any contrary document on
record, we cannot accept the statement or version of the
petitioner or his counsel. It is incorrect, therefore to urge that
the petitioner obtained any right in relation to a retainable land.
The petitioner dealt with a surplus vacant land with open eyes.
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The petitioner was aware that Skyline Builders entered into an
agreement for development of the land with Gunjubai and others.
nd
That was an agreement dated 22 April, 2002 and copy thereof is
annexed as Annexure 'B' to the petition. If one peruses Annexure
'B', it is evident from the same that the schedule thereto refers to
all that piece and parcel of land or ground bearing Survey No. 20,
Hissa No. 13 admeasuring 14.1/4 gunthas equivalent to 1367.3
square meters as per property card with four structures. It is
stated in first schedule of this agreement, which has been signed
by Babu Bhaskar Bhandari and others and Hasmat Jamal
Ghanchi and Abdul Latif Shaikh that the said land was owned by
one Manik Bhandari. It is stated that Gunjubai and others
appeared to have agreed to sell the larger property to one M/s.
Jagruti Construction in the year 1979. This property is described
at page 27 in recital (a). In recital (d), however, it is conceded
that the agreement with M/s. Jagruti Construction has not been
acted upon and abandoned. That is barred by limitation and not
enforceable in law. The owners are seized and possessed of or
otherwise well and sufficiently entitled to the said larger property
along with four structures standing thereupon. These owners
were desirous of assigning the development rights in respect of
the said property upon the portion of the said larger property to
the developers subject to owners rights to retain with the owners
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other portion of the said larger property along with the said four
structures by allowing the developers to utilise the entire
permissible FSI of the said larger property excluding the FSI
already consumed by the said four structures. The agreement
nd
then contains the covenants. This agreement is dated 22 April,
2002. Pertinently, this agreement does not refer to any
proceedings under the ULC Act. It is, therefore, a very contingent
and a doubtful right to say the least surviving in the owners,
which the petitioner seeks to obtain from M/s. Skyline
Enterprises. It is stated in para 6 of the petition that M/s. Skyline
Enterprises was not in possession of the property. Thereafter,
they assigned the said property for development to the petitioner
vide two separate development agreements referred in para 6 of
the petition, copies of which are annexed as Annexure 'D'
collectively to the petition. How the petitioner, thereafter,
obtained the Intimation of Disapproval / Commencement
Certificate (IOD/CC) from the Municipal Corporation of Greater
Mumbai and made construction on the property, when it had not
only vested in the State, but possession of which was already
taken, as is evident from the documents produced and relied
upon by Mr. Upadhye, has not been clarified to us at all. The
petitioner claims to be in physical possession and relies upon the
photographs to show the same. However, what we have from the
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memo of the petition itself that it contains guarded statements
about possession of the petitioner. The petitioner does not refer
to the entire factual position and as emerging from the record. He
refers to documents selectively, but does not disclose several
others, which are relevant and material. There is substance in
the contentions of the learned AGP, therefore, that the petition
ought to be dismissed for suppression of relevant and material
facts.
20. However, the petitioner's counsel having argued and very
vehemently on the basis of the record that the possession of the
property was never taken prior to the repeal of the Act coming
into force in the State that we considered the same. Firstly, we do
not find how, when the petitioner having openly dealt with not
with the portion of the land styled as retainable, but excess
vacant land, can claim, on the strength of the two development
agreements that he has right, title and interest in the property.
His claim of being in physical possession follows two development
agreements of 2006. Pertinently, the date of these two
th
agreements has to be noted. They are dated 4 April, 2006 and
th
16 April, 2006. The agreement with M/s. Skyline Enterprises
th
and Bhandaris' is dated 22 April, 2002. The record reveals that
the notification under section 10(1) was published in the official
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th
gazette. That was dated 6 May, 2000, but published in the
th
official gazette on 12 October, 2000. The land was thus to be
vested in the State. There is a contemporaneous record of this
publication in the order of the Additional Collector and Competent
th
Authority under the ULC. That is dated 16 July, 2005. That
concerns cancellation of an order under section 20 of the ULC
Act. That order was passed on the application of one Lancelot
D'souza, who is the power of attorney holder. He is the power of
attorney holder of Vasant Manik Bhandari. Thereafter, what we
th
find is that there is a declaration published on 24 May, 2006
under section 10(3) of the ULC Act. That vests the land with
th
effect from 8 May, 2006 in the State. Thus, the surplus vacant
land, which includes the petition land vests in the State from this
date. Knowing fully well the legal consequences flowing
therefrom that M/s. Skyline Enterprises and the petitioner
entered into a deal. Once they entered into a deal in relation to
the land vested in the State, then, we must, as rightly submitted
by the learned AGP, be circumspect and careful in accepting the
version of the petitioner. More so, when the original owners or
M/s. Skyline Enterprises have never controverted the record and
papers therein.
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21. What we have, therefore, on record is the submission made
by the petitioner, who is stated to have entered upon the property
pursuant to the development agreement in favour of M/s. Skyline
Enterprises. M/s. Skyline Enterprises and the petitioner,
therefore, have clearly connived at bringing about a situation
where a land vesting in the State completely is taken away from
its control and domain. The petitioner, therefore, claims in the
writ petition and in the additional affidavit that no notice was
issued to Vasant Bhandari. However, what we have and very
carefully perused is the State's record. That record contains a
th
letter dated 13 October, 2014 from the petitioner and addressed
to the first respondent to this writ petition. The subject of this
letter is rectification of acquisition of non-surplus vacant land
under section 10(1), 10(3) and 10(5) of the ULC Act. That is a
rd
letter received on 3 November, 2014. In that letter, after
setting out as to how the petitioner has knowledge of the
proceedings under the ULC Act, surprisingly, mentions that an
th
order under section 8(4) was passed on 29 October, 1986.
th
Notification under section 10(1) was issued on 7 April, 2000
th
and revised ULC order was passed on 27 March, 2002. The
petitioner refers to the second notification under section 10(1)
th
issued on 24 April, 2006. Pertinently, it refers to a notice under
th
section 10(5) dated 18 October, 2006, but the petitioner states
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that this notice is asking him to deliver possession of surplus
st
vacant land to the Government on 31 October, 2006. If the
owner has not received any such notice till the date of addressing
th
this letter of 13 October, 2014, then, how it is the petitioner who
makes a reference to a further step and which is claimed to be of
approval of plan, grant of C. C. etc. If the surplus vacant land was
dealt with in this fashion by the petitioner, then, he knows that it
was not and could not have been ever transferred to him. The
th
petitioner has referred in this letter to the notice dated 18
October, 2006 asking delivery of possession to the Government
st
on 31 October, 2006. However, conveniently refers to it as
addressed to him. Even if it is addressed to him, then, it is
th
apparent that on 13 October, 2014 and much after lodging of
this writ petition, the petitioner was aware that the surplus
vacant land was taken over by the competent authority and he
could not establish that lack of requisite notice. We have clearly
noted from the scheme of the Act as to how section 10(1)
contemplates an issuance of a notification, whereupon, section
10(2) follows. Section 10(3) is a declaration which is to be issued
by the competent authority and containing the deemed date of
vesting. We are, therefore, not surprised that such petition is one
more in the series of litigation of builders and developers, who
obtain some records and conveniently suppressing others, claim
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before this court that the possession of the land was not taken
from the owner or person in possession prior to the Repeal Act
coming into force. The surplus vacant land has already vested in
the State. The petitioner does not even stop at this, but goes
th
ahead and addresses letter dated 10 June, 2015 to the Chief
Minister of the State.
22. The petitioner claims that he is entitled to apply for
cancellation of the entry in the property register card. The Chief
Minister's office is prompt in directing the authorities to offer its
comments on the request of the petitioner. What we find is that
all this is an afterthought and particularly upon dismissal of two
Special Leave Petitions by the Hon'ble Supreme Court of India.
The last dismissal order being in the case of Bank of Baroda
(supra). However, what we find is that though the petitioner is
aware of the proceedings and concluded under the Principal/ULC
Act has challenged the validity of the proceedings on the ground
of absence of notice to the Bhandaris/M/s. Skyline Enterprises.
M/s. Skyline Enterprises has not made any such claim. What we
find that from the documents and which are relied upon by Mr.
Patil from the original record is that he says that endorsement at
page 499 would show that the notice under section 10(5) has not
been served. He relies upon the endorsements in the negative.
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However, these endorsements have to be read in their entirety.
Against several columns, there are entries made. As against
query that whether notice under section 10(5) has been served
on the Bhandaris, the entry is 'Yes'. Whether the notice has been
duly served and delivered, the entry is 'Yes'. Whether the holder
has expired or otherwise, the endorsement states that he has not
expired. The notice has been served by hand delivery. It is
clearly stated that there is no signature on the panchanama nor
does the same bear the name of the panchas. However, there is a
letter from Rajiv Harmalkar and Company at page 501 of the
th
original record dated 13 March, 2012. That is addressed on
behalf of the client Rajiv Harmalkar, who is the consulting
architect of Hasmant J. Ghanchhi, partner of M/s. Skyline
Enterprises. He states that his client has obtained area of
1367.30 square meters of CTS No. 531 as a land within ceiling
limit. However, para 1 of this letter states that it is the land
within ceiling limit and not surplus vacant land. On the basis of
this stand, M/s. Skyline Enterprises obtained approvals from
Muncipal Corporation of Greater Mumbai and got the plans
approved. It is M/s. Skyline Enterprises who has constructed the
plinth of the building. Thereafter, when it approached the
concerned City Survey Office for obtaining the information of the
property card, it found the name of the Government of
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Maharashtra as owner. Pertinently, File No. 1, which is reference
no. 1 of this letter is nothing but an order under section 8(4)
th
dated 29 October, 1986, which revealed to this Hashmant
Ghanchi how the Government's name has been entered as owner.
He says that there are two numbers of 6(1) cases/files in
existence and two orders under section 8(4) have been issued by
the Department, namely, the competent authority. In one of the
said files, the area of Cts No. 531 has been shown as surplus
vacant land and in another file the same area has been shown as
W. C. L. For the same land, there should not be two orders under
same section of the ULC Act. When the competent authority
issued second order, it should have verified from record of the
office whether application filed under section 6(1) was in
existence or not for the same land and same family, namely,
Gunjubai Bhandari and others. Therefore, there is a mistake on
the part of the competent authority in passing two orders for the
same land. However, he gives up this claim and states that he is
ready to pay ready reckoner value of the land of 2002. The
values of the land, therefore, should be informed to him and
thereafter, steps should be taken to cancel the notices under
sections 10(3) and 10(5) and inform the City Survey Officer to
delete the name of the Government. He annexes the area
statement. Therefore, M/s. Skyline Enterprises was aware that
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there are notices issued under section 10(5). They are aware
that the land is surplus vacant land. They are aware by their own
th
letter, through their constituted attorney dated 13 March, 2012
that the land has not only vested in the State but the actual
physical possession thereof has already been taken. They
question none of the steps. It is surprising that they continue to
deal in the land despite the agreements in favour of the
petitioner. Far from there being two orders under section 8(4) of
the ULC Act, we have two versions and completely divergent,
from two builders and developers, who are interested in the
property. It is very unfortunate that people are bold enough to
make assertions never made by the owners. The version of
builders are based on perusal of some record and they claim that
the lands have not vested in the State and prior to the repeal of
the ULC Act. There is a letter in the file and detailed
correspondence with Premnivas Tenant Association. They also
evinced interest in the land and they were ready to pay ready-
reckoner price as well.
23. We are, therefore, not in agreement with Mr. Patil that the
possession of the land was not taken. In the file, in fact, there are
clear proceedings and which would indicate that not only the
possession was taken, but measures were initiated to pay
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compensation. There is an order passed under section 11(7) read
with 14 of the ULC Act in that regard. Once the original record
comes before the court and it is allowed to be perused by parties,
then, we find that there is a clear advantage. When we find the
entire and bulky record has not been perused carefully even by
the deponent of the affidavit filed on behalf of the respondents
before us, then, it is unsafe and unwise to rely upon only that
affidavit. That is why we called for the original record.
24. The original record, therefore, reveals that at no point of
time Bhandaris have any objection to the proceedings under the
ULC Act. They were happy with the revised order passed. There
th
is a clear reference to the revised order dated 27 March, 2002 in
the file. However, that is not only concerning the subject land.
That relates to claim of Hashmant Ghanchi. Hashmant Ghanchi,
claiming as a declarant, has filed a declaration relating to these
lands and on the basis of statement under section 6(1) and after
preliminary inquiry, measurements and draft statement under
section 8(2) of the ULC Act calling upon the owners to prefer
objections to the said draft statement. There was a hearing held
th
on 26 March, 2002. The proceedings were closed thereafter.
What we find is that the final statement came to be prepared. As
far as the remarks in the final statement are concerned, we do
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not think that the said Hashmant Ghanchi, though a recipient of
the order passed and styled as revised order under section 8(4)
of the ULC Act, has taken any advantage of the endorsement or
the prior observations flowing from this order. It is, therefore,
evident that the land, which is subject matter of the petition is a
surplus vacant land, in relation to which, all the proceedings have
been concluded. They have been concluded prior to the repeal of
the ULC Act coming into force is also evident. The petitioner
cannot make much capital of the date in the letter at page 359 of
th
the record. The date is 13 October, 2006. However, that is a
clear typographical error. Vide the letter, the City Survey Officer
is informing the Additional Collector and Competent Authority
that after his communication was received, the steps have been
taken by the City Survey Officer. He personally visited the site
and took possession of the surplus vacant land. The further steps
have also been taken to enter the name of the Government in the
property register card. He is forwarding the relevant documents
and the endorsement in the property register card for
information of the Additional Collector. This letter bears the
signature of the City Survey Officer and below the signature, the
th
date written is 13 November, 2006. The competent authority
th
has stamped the acknowledgment date/date of receipt as 20
November, 2006. Therefore, it is not as if the possession of the
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th
land was taken on 13 October, 2006. The documents
accompanying this communication would show that there is a
record of the possession at site. The record indicates that the
st
notice was duly served. The possession was taken on 31
October, 2006. On the date on which possession was taken, there
were huts or slum like structures on the property. Therefore, it is
not as if it is a slum area, much less a declared slum. There is a
panchanama and also a possession receipt. True it is that the
panchanama does not indicate the names of the panchas nor
contains their signatures, but the possession receipt clearly
refers to all the details, including the signature of the officer
taking possession. This contemporaneous record must be
perused in its entirety. One single document cannot be read in
isolation. It is apparent that notice under section 10(5) was duly
prepared and served. It was sought to be served on Vasant Manik
Bhandari. The record indicates that the address was incomplete.
However, pursuant thereto, the notice came to be served and that
is also apparent from the version appearing in the letter
addressed by Hashmant Ghanchi to the State. It is clear that the
file contains another endorsement and which is the further notice
th
dated 9 January, 2007 directing the Bhandaris and Vasant
Manik Bhandari to remain present for the proceedings to
determine the compensation. In this notice, it is stated that
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st
possession of the land was taken on 31 October, 2006 in the
absence of the said Vasant Bhandari and ex-parte. Pertinently,
th
on 29 January, 2007, the petitioner, as constituted attorney of
Gunjubai and others addressed a letter to the competent
authority and stated in the same as under:-
“Respected Sir,
We are Power of Attorney holders of Mrs. Gunjubai Manik
Bhandari and others who are the owners of land in Malad
bearing S. No. 20 H. No. 13, CTS No. 531 of village Valnai,
Taluka Borivali admeasuring 1367.30 Sq. Mtrs.
We had applied for ULC NOC on 13/8/1976 and
accordingly we had been issued an order u/s 8(4) of the
ULC (C & R) Act bearing ULC NOC No: C/ULC/6(i)/D-
XV/SR-IX-872/78 dated 27-3-2002 by your office under
which the above land is mentioned as NON-SVL land, a
copy of which we are attaching herewith as Annexure-I
for your kind reference.
But to our surprise, when we applied for a fresh P. R.
Card, we came to know that the said above land is
acquired by Maharashtra Government as per your order
issued u/s 10(5) of ULC (C & R) Act of 1976 under the
ULC No: C/ULC/D-V/SR/X 923/930.
The layout plans for the above said land is already
approved under CHE/1220/LOP and the approval of
building plans is already in process under
CHE/8329/BP(WS) AP and the scrutiny fees for the same
has already been paid.
We cannot understand as to how a NON-VSL land can be
defined as SVL in the same department with a different
ULC file number and it gets acquired under the same
different ULC file number. We would like to protest
against the same and request you to kindly look into the
matter urgently and set aside the said order.
This land is already sold to us through registered
Development Agreement and the acquisition of the above
said land is bad in law.
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Kindly give us a hearing for the above matter for the sake
of justice before paying the compensation for acquisition
for the said land to any parties representing the above
said land.
Sincerely,
Mr. Pankaj S. Parikh
C. A. to Mrs. Gunjubai Manik
Bhandari and Others.”
25. This would clearly indicate that the petitioner was aware of
the proceedings. In none of these communications emanating
from the petitioner, it is asserted that the physical possession is
with him. Once there has been no objection or complaint from the
original owners nor have they questioned the legality and validity
of the concluded proceedings under the Principal Act, then, we
cannot accept the arguments of Mr. Patil. We are satisfied from
the perusal of the record and which must be seen in its entirety
that due compliance was made with all the legal provisions,
including section 10(5) of the Act.
26. This is a case covered by the judgment in the case of Adi
Dara Patel (supra). One paragraph thereof cannot be read in
isolation. In Bank of Baroda's case (supra), it was held on facts
that the possession was not taken from the petitioner, who was in
physical possession prior to the repeal of the Principal Act in the
State. At the same time, in the case of Adi Dara Patel (supra), the
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Division Bench makes a reference not only to the case of State of
3
U. P. vs. Hari Ram , but also the later judgment of the Hon'ble
Supreme Court of India which in terms holds that much capital
cannot be made of the documents not indicating and in clearest
terms whether physical possession was obtained or not. This
court has referred to that judgment as well. That judgment
clearly makes reference to Hari Ram's case (supra) and all prior
decisions, including on the point of taking possession.
27. It is in these circumstances and when it is conceded that
there is no form prescribed for panchanama as also possession
receipt, then, all the more, we have no hesitation in rejecting the
contentions of the learned counsel appearing for the petitioner.
Moreso, when his version is not truthful and honest, suppression
of material facts is writ large in these proceedings.
28. As a result of the above discussion, the writ petition fails.
Rule is discharged. However, there would be an order to pay
costs quantified at Rs.1 lac to be paid by the petitioner within a
period of six weeks from today to the respondents. Else, and in
default, the same be recovered as arrears of land revenue.
3 (2013) 4 SCC 280
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29. The original records shall be returned to Mr. Upadhye
provided Mr. Upadhye replaces the same with certified true
copies.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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