Vijay Chintaman Vaity & Ors. v. The State of Maharashtra & Ors.

Mr.R.S.Apte, Sr.Counsel with Mr.Deepak C.Natu i/b M/s Deepak & Co.for the petitioner Mr.S.R.Nargolkar ,AGP for Res. State Coram : J.N.Patel & Mrs. Mridula Bhatkar, JJ. Date :18th July,2009 P.C.(Mrs. Mridula Bhatkar,J.) Rule. Rule returnable forthwith and heard finally by . 2] consent . 3] This petition is filed for quashing and setting aside the notice dated 6/10/2006 issued u/s 10(5) of the Urban Land (Ceiling & Regulation)Act,1976 declaring the land Gat no. 120/2-Paiki and 1114/2-Paiki situated at Mulund ademasuring

1099.15 sq.mtrs.as surplus .The petitioners are the legal heirs of the original owner namely Keshav Gulam Vaity who was the head of the family. It is contended that the respondents without following proper procedure stipulated under sections 6,7,8 and 4 9 of the Urban Land (Ceiling & Regulation)Act,1976 and without giving any opportunity of hearing to the petitioners have directly jumped on section 10 of the Act and issued notice under section 10(5) of the Urban Land (Ceiling & Regulation)Act,1976.The petitioners, therefore, filed petition challenging the act of the respondents. However, during the pendency of the petition the Urban Land (Ceiling & Regulation)Act,1976 repealed on 29/11/2007 and accordingly the petitioners had carried out the amendment. The possession of the property is not taken by the respondents . Hence the petitioners are claiming this relief in view of The Urban Land (Ceiling & Regulation) Repeal Act,

1999. 4] The respondents have filed affidavit in reply opposing the petition. It is agreed by them that the possession of the land was not taken by the respondents and it is with the petitioner. 5] The Urban Land (Ceiling & Regulation)Act,1976 was repealed on 29/11/2007 and so the proceedings under the said Act are abated since the said date. In the present matter the Government has not taken any steps for possession of the surplus land under section 10(3) of the said Act prior to 29/11/2007. Thus, the case of the petitioner is covered under 4 the decision of the Supreme Court Mukarram Ali Khan Vs. State of Uttar Pradesh &Ors. (2007),11 Supreme Court Cases 90; in which it is held as in which it is held as follows- 5]Section-4 of the Repeal Act reads as follows :

Abatement of legal proceedings- All legal proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act ,before any Court, tribunal or other authority shall abate; Provided that this section shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the principal Act insofar as such proceedings are relatable to the land, 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. 6] In view of the affidavit filed by the appellant to which no objection has been filed, undisputed position is that the State has not taken the possession over the surplus land. Therefore, the proceedings have to be treated to have abated under Section 4 of the Repeal Act. 6] Further reliance is placed on Voltas and Others Vs.Additional Collector & Competent Authority ,2008(5) Bom.C.R.746 and the SLP preferred against this decision was dismissed by the Hon’ble Supreme Court. 7] The petition will therefore have to be allowed in terms of prayer clause 20-a. (20-a) This Hon’ble Court be pleased to declare that the 4 Property is absolutely owned and possessed by the Petitioner No.07 to 09 free of all encumbrance or charge of the Respondent No.01 and 04 State of Maharashtra in view of the provisions of the Repeal Act and the Notification and its Gazette publication at Annexure H1 (Colly.). The Hindu Succession Act, 1956 R/w the provisions of the G.R.dated 01-12-2007 under Article 252(2) of The Constitution of India R/w Section 3(1)(2)(a) of the Urban Land (Ceiling and Regulation) of The Repeal Act,1999 is not applicable in the present facts and circumstances of the case. Rule made absolute with no order as to costs. (J.N.Patel,J.) (Mrs. Mridula Bhatkar,J.)