R.K. Deshpande, J.
1. Heard. Rule. The petition is being disposed of finally.
2. This petition concerns the release of land, admeasuring 6.43 acres in Survey No.49/1 of Mouza Kamptee, Block (Gat) No.76 (for short, “the land in question”) from the proceedings in ULC Case No.2138 of 1976 for declaration of the land in question as surplus and acquisition thereof under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, “the said Act”).
3. The prayer clauses 1 and 2 in the petition are reproduced below :
“1. by issuance of appropriate writ, order or directions, declare that proceedings initiated by respondent nos.1 to 3 in respect of land admeasuring 6.43 acres in Survey no.49/1, Mouza Kamptee, Block (Gat) No.76 under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 owned by petitioners stand abated.”
“2. direct the respondents to delete the name of respondent no.4Maharashtra Housing and Area Development Authority from the record of rights i.e. Akhiv Patrika in respect of the land admeasuring 22216.27 Sq.Mtrs. in Survey no.49/1, Mouza Kamptee, Block (Gat) No.76 and mutate the names of petitioners in its place and declare and hold that petitioners are exclusive owners of the entire land admeasuring 6.43 acres in Survey no.49/1, Mouza Kamptee, Block (Gat) No.76 and they are free to continue their agricultural operations.”
4. The petitioners are the legal heirs of one Dashrath Kisan Behar, who, according to them, was the owner of the land in question as Bhoomiswami land, whereas, according to the respondent-authorities, the land in question is a Nazul land, given on lease to said Dashrath Kisan Behar for the purposes of garden. Dashrath Kisan Behar expired on 7-8-1998, leaving behind him, his legal heirs, viz. Smt. Parvatibai, his widow; and Narayan, his son, who are the petitioner Nos.1 and 2. The reliance is placed by the respondents on the application dated 23-11-1965, said to have been made by the said Dashrath Behar for conversion of land from Class-II to Class-I and the reports dated 20-8-1964 and 21-8-1981, indicating that the land belongs to the Nazul Department of the State Government and the said Dashrath Behar was the Pot Kastakar. In the absence of lease agreement on record, the respondents are unable to state the lease period.
5. In the orders dated 9-7-2018 and 6-9-2018, passed initially after hearing the learned counsels appearing for the parties, we expressed that if the land in question was given on lease to Dashrath Behar, then where is the question of any return to be filed by him under the provisions of the said Act and the possession of it could have been assumed either after termination of lease or after expiry of the period of lease. We also expressed that there is neither any order granting lease nor any agreement of lease nor any document terminating the lease, is placed on record, though the revenue documents in the form of P.11 register and Aakhiv Patrika indicate that the land in question belongs to the State Government and Dashrath Behar was the Pattedar. We, therefore called upon the Collector, Nagpur to clarify the position.
6. In response to the orders passed by this Court, an affidavit has been filed by the Collector on 7-10-2018, stating in Para 5 that Section 2(l) of the said Act defines the expression “to hold” as under:
“2. Definitions. - In this Act, unless the context otherwise requires, -
(l) “to hold” with its grammatical variations, in relation to any vacant land, means -
(i) to own such land; or
(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Explanation. - Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purposes of this Act, such land shall be deemed to be held by both such persons.”
Our attention is also invited to the provision of subsection (11) of Section 4 of the said Act, which is also reproduced below :
“4. Ceiling limit. -
(11) For the removal of doubts it is hereby declared that nothing in subsections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub-clause (ii) or sub-clause (iii) of clause (q) of section 2 as excess vacant land under this Chapter.
Explanation. - For the purposes of this section and sections 6,8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with a dwelling unit therein) if he -
(i) owns such land and the building; or
(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or
(iii) possesses such land but owns the building, the possession being as a tenant under a lease or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities.”
Relying upon the aforesaid provisions, it is urged that even a tenant possessing land under lease is required to file a return under the provision of Section 6(1) of the said Act.
7. In view of the aforesaid position of law, it is not necessary for us to decide the disputed question of fact as to whether the petitioners establish their ownership over the land in question or they are the tenants of the Nazul Department of the State Government holding the land in question, either as owners or tenants or lessees till termination of tenancy or till expiry of the period of tenancy or lease. The provisions of the said Act become applicable even in respect of the tenant whose lease subsists. We, therefore, find that the original tenant Dashrath Behar was right in submitting his return under Section 6 of the said Act and no fault can be found in initiating initiating and completing the proceedings under the said Act by the respondents.
8. It is not in dispute that in the proceedings under the said Act, the land admeasuring 22,216.27 square meters, out of the total area of 26,052 square meters, was declared as surplus in terms of subsection (4) of Section 8 of the said Act, by an order dated 3041984 passed by the respondent No.3. Dashrath Behar was held entitled to retain the land admeasuring 3,835.73 square meters, and in respect of it, there is no dispute. The notification under subsection (1) of Section 10 of the said Act was issued on 30-5-1985 for acquisition of surplus land, and Shri Anand Jaiswal, the learned Senior Advocate, assisted by Advocate Shri P.D. Meghe, appearing for the petitioners, has, in categorical terms, stated that it is not the argument of the petitioners that the notification under subsection (3) of Section 10 of the said Act was not issued on 2-11-1989. Once it is admitted that such notification is issued, the land declared as surplus or excess vacant land referred to in the notification published under subsection (1) of Section 10 of the said Act, is deemed to have been acquired by the State Government and it vests absolutely in it, free from all encumbrances with effect from the date so specified in the notification. The vesting of the land in question in the State Government, free from all encumbrances with effect from 2-11-1989, is a fact, which no longer remains in dispute and we proceed on the basis of such position.
9. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 was brought into force in the State of Maharashtra with effect from 29-11-2007 (for short, “the Repealing Act”). Section 3 of the Repealing Act being relevant, is reproduced below :
“3. Savings. -- (1) The repeal of the principal Act shall not affect --
(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under subsection (1) of section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under subsection (1) of section 20.
(2) Where --
(a) any land is deemed to have vested in the State Government under subsection (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land,
then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.”
The effect of subsections (1)(a) and (2)(a) of Section 3 of the Repealing Act is that even if the land in question is vested in the State Government under subsection (3) of Section 10 of the said Act, the proceedings initiated and concluded upto that stage shall lapse or abate, if it is shown that the possession of the land in question was not taken over by the State Government in accordance with the notice issued under subsection (5) of Section 10 of the said Act. The expression “possession” used under Section 3 of the Repealing Act means “actual physical possession” of the surplus land.
10. The crucial issue involved in the present case is, therefore, whether on the date of coming into force of the Repealing Act on 29-11-2007, the petitioners had actually lost their possession or that the respondent-authorities had taken actual possession of the land in question? If it is held that such possession was taken over by the respondents on or before 29-11-2007, the petitioners would not be entitled to any relief; but if it is shown that such possession was not taken, then the proceedings under the said Act will have to be declared as abated or lapsed with further direction to effect accordingly the changes in the revenue records, as claimed in prayer clause 2 of this petition.
11. Shri Jaiswal, the learned Senior Advocate appearing for the petitioners, has heavily relied upon the communication dated 26-5-2010 from the Collector, Nagpur to the Divisional Commissioner, Nagpur, giving a list of lands in respect of which a notification under subsection (3) of Section 10 of the said Act was issued, but the possession of which was not taken in accordance with subsection (5) of Section 10 of the said Act. It is alleged to have been prepared in accordance with the instructions issued by the Urban Development Department of the State Government on 12-5-2010. The name of Dashrath Kisan Behar shown at Serial No.597 against Survey No.49/1 of Kamptee, admeasuring 22216.3 square meters indicating in the last column that the land has been transferred in the revenue records in the name of Maharashtra Housing Area and Development Authority (MHADA), Nagpur.
12. Shri Jaiswal has invited our attention to the possession receipt dated 14-8-1990 to point out that the leaseholder was shown absent. He has also relied upon the decision of the Division Bench of this Court delivered in Writ Petition No.3471 of 2016 on 24-3-2017 [Shri Vijaykumar s/o Uttamchand Bothra and others v. State of Maharashtra and others], in which this Court has accepted the authenticity of such list annexed to the order of the Divisional Commissioner passed on 30-7-2016, indicating that the possession of the land owned by the petitioners therein was not taken prior to 29-11-2007. This Court accordingly declared that the lands involved in the said decision cannot be subjected to the provisions of the said Act after repeal.
13. The respondents have produced the record of the proceedings of ULC Case No.2138 of 1976 and the reliance is placed upon the notice dated 18-7-1990 issued under subsection (5) of Section 10 of the said Act, calling upon the owner or the occupier of the land in question to remain present for delivery of possession. In the affidavit filed by the Collector, it is stated that the notice was received by the granddaughter of the petitioners and the notice bears her signature. The petitioners submit that the granddaughter on the date of alleged delivery of notice was minor. The respondents have invited our attention to the possession receipt dated 14-8-1990 showing that the owner was absent on the spot and it is in his absence that the Naib-Tahsildar, Kamptee has prepared the possession receipt, evidencing the handing over of the possession to the Deputy Engineer, Nagpur Housing and Area Development Board, Nagpur. The panchanama prepared and produced on record is shown to have been signed by Dashrath Kisanji as witness on the very same day, i.e. 14-8-1990.
14. The question as to whether the petitioners had actually lost their possession or that the respondent-authorities had actually taken possession of the land in question prior to 29-11-2007, is a disputed question of fact and the difficulty arises in exercising jurisdiction under Article 226 of the Constitution of India. Heavy reliance is placed upon the list prepared on 26-5-2010 by the office of Collector, showing that the possession of the land in question was not taken over prior to 29-11-2007. The respondent-Collector has filed an affidavit dated 7-10-2018 in this petition, stating in Para 22 that the land in question was wrongly included in the list dated 26-5-2010, as MHADA was handed over the possession of the land admeasuring 22,216.27 square meters along with the land admeasuring 6,431.00 square meters of Survey No.49/3 on the same day, i.e. 1481990.
15. Normally, relying upon the decision of this Court in Writ Petition No.3471 of 2016, decided on 24-3-2017, there would not have been any difficulty in holding that the preparation of list on 26-5-2010 by the Collector was in response to the instructions issued by the State Government on 12-5-2010, and the act being official, the rebuttal presumption would be that the possession of the land in question was not taken over prior to 29-11-2007, particularly when the evidence about service of notice under subsection (5) of Section 10 of the said Act either upon Dashrath Behar, the leaseholder, or the petitioners, is absent, coupled with the inconsistent factual position that the possession receipt dated 14-8-1990 shows that the leaseholder Dashrath Behar was absent, whereas the panchanama prepared on the same day and same time shows that Dashrath Behar has signed it as the witness on the handing over possession to MHADA.
16. In our view, the conduct of the petitioners prevents us to exercise jurisdiction under Article 226 of the Constitution of India to grant any relief to the petitioners for the following reasons :
(1) Though before us in this petition the notification dated 21-1-1989 issued under subsection (3) of Section 10 of the said Act is not challenged, the same was made the subject-matter of challenge in Regular Civil Suit No.218 of 1991 filed by the petitioners on 23-1-1991 claiming the reliefs as under :
“(a) to declare that the land Khasra No.49/1 of Mouza Kamptee, being agricultural land, cannot be dealt with by the defendants under the provisions of the Urban Land Ceiling Act;
(b) to declare that the Notification under Section 10(3) issued by the defendants nos.2 and 3 during the pendency of the exemption application in case no.3 AGR 42/1978 and further application, are void and illegal;
(c) to restrain the defendants, their servants, agents etc. from disturbing the possession of the family of the plaintiff;
(d) a decree with costs.” The said suit was dismissed in default on 23-1-1991 and MJC for restoration of it, was also dismissed on 8-8-1995.
(2) It is the specific case in this petition that the petitioners were never served with the notice under subsection (5) of Section 10 of the said Act for taking over the possession. In this background, it is alleged in Para 11 of this petition, as under :
“11. The petitioners, at the cost of repetition, reiterate that neither the husband of petitioner no.1 received any notice dated 18-7-1990 from the office of respondent no.2 or any other respondent nor at any point of time any officers or employees of respondents ever came and took the possession of land from husband of the petitioner no.1 or from the petitioners at any point of time. The petitioners are continuously enjoying the peaceful possession of land for more than 60 years and are cultivating the land without any disturbance or obstruction in any manner whatsoever from respondents or their officers/employees.”
Whereas, in Para 6 of Regular Civil Suit No.218 of 1991, it was pleaded as under :
“6. Section 10(3) of the Act provides that the land covered therein and published in the Notification shall be deemed to have been vested absolutely in State Government from the date of Notification under Section 10(5), further contemplates by that by occupation in writing the Competent Authority may require a person in possession to first surrender the same either to the State Government or to any other person duly authorised by the State Government. Though the authorities have served notices under Section 10(5) upon this plaintiff and defendant no.1, and obtain signatures on certain papers, they are still in possession of kh.no.49/1. The said Notification was only on paper and is void abinitio. This has been done in apparently disregard to the facts that further exemption application u/s 20, and plaintiff's share is not considered.”
The inconsistency is that in Regular Civil Suit, the petitioners admit to have received notice under subsection (5) of Section 10, whereas in this petition, it is denied. The stand taken at both the places is clearly contradictory and inconsistent.
(3) A notification under subsection (1) of Section 10 of the said Act was issued on 30-5-1985, and under subsection (3) of Section 10, it was issued on 21-1-1989. As per the order passed by the competent authority on 18-7-1990, the land was allotted to MHADA and the respondents claimed to have taken possession of the surplus land on 14-8-1990. A notice under subsection (1) of Section 11 of the said Act, determining compensation and offering it to the petitioners was issued on 12-12-1990 and the revenue records were changed on 20-8-2003. The petitioners were allowed to retain 3,835.73 square meters of land, which was mutated in their names on 20-8-2003 as per the order dated 1-8-2003.
(4) The cause of action for filing this petition shown is that on 20-12-2011 and 1882016, the petitioners had made a representation for deletion of entry in respect of MHADA in the property card, no action was taken to delete the entry and therefore the petitioners were constrained to approach this Court.
(5) It seems that on 21-3-2018, the Naib Tahsildar submitted a report to this Court in respect of the actual physical possession of the property in question, wherein it is shown that the petitioners are in possession of the land in question as encroachers. In the affidavit dated 10-8-2018 filed by the respondent No.5, the Naib Tahsildar, it is stated that the entire land admeasuring 26,052 square meters of Survey No.49/1 is under use for agricultural purpose by the petitioners; out of which, there is unauthorized possession of the petitioners on 22,216.27 square meters on the said piece of land.
17. In our view, the petitioners have suppressed the material fact of filing Regular Civil Suit No.218 of 1991 on 23-1-1991, its dismissal on 11-1-1994, and also the dismissal of MJC for restoration on 881995. Perusal of Para 11 of this petition and Para 6 of Regular Civil Suit No.218 of 1991 shows inconsistent stand taken by the petitioners. The claim of the respondents to have taken over the actual physical possession of the land in question on 14-8-1990 was within the knowledge of the petitioners atleast on 23-1-1991, when they filed Regular Civil Suit No.218 of 1991, and it is only after lapse of the period of ten years from the date of repeal of the said Act on 29-11-2007, a plea is raised that the actual physical possession was not taken over by the respondents.
18. In the matter arising out of the proceedings under the said Act and its repeal with effect from 6-8-2003, the Apex Court was considering the question of grant of relief of restoration of possession of the land in dispute in the case of State of Assam v. Bhaskar Jyoti Sarma and others, reported in (2015) 5 SCC 321. It was a specific plea raised about absence of service of notice under subsection (5) of Section 10 of the said Act. The Apex Court has held that unless there was something that was inherently wrong so as to affect the very process of taking over possession such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply s
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erving a notice under Section 10(5) of the said Act. The Apex Court has held that in that view of the matter, it would be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him. 19. Para 16 of the aforesaid decision being relevant, is reproduced below : “16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7-12-1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.” 20. In view of the aforesaid law laid down by the Apex Court and the reasons, which we have given above, we find that the petitioners are not entitled to any relief and the petition, therefore, deserves to be dismissed. 21. The petition is dismissed. Rule stands discharged. No order as to costs. Later on : 22. At this stage, Shri Meghe, the learned counsel for the petitioners, submits that the order of status quo is operating till this date in respect of possession and, therefore, claims that the same may be continued for a further period of eight weeks so as to enable the petitioners to have recourse to further remedies available in law. The prayer is opposed by the learned counsel for the respondents. Keeping in view that the interim relief is operating till this date, we deem it proper to continue the same for a further period of eight weeks from today, at the end of which, it will automatically expire without further reference to the Court.