Oral Judgment:

Rajnish R. Vyas, J.

(1) Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.

(2) The petitioners who are the legal heirs of the original owner have invoked the writ jurisdiction of this Court praying for issuance of declaration that proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “Principal Act”) in respect of the land of the petitioners have lapsed in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “Repeal Act”).

(3) According to the petitioners, one Amrut Bobde was the owner of land situated at Mouza : Chinchbhawan, Ward No.75, Khasra No.308, 309 area admeasuring 0.42H.R., 0.35HR respectively, occupancy Class-I, Jama Rs.1.30 and 1.50, Chinchbhawan, Wardha Road, Nagpur, Tahsil and District Nagpur.

(4) On 20/01/1977, a statement under Section 6(1) of the Principal Act was filed in respect of Khasra Nos. 308 and 309. Thereafter, on 21/10/1983, they appeared before the respondent authority, and consequently, a notification under Section 10(1) of the Principal Act came to be issued. On 18/04/2005 and 06/11/2007, the respondents issued notice under Section 10(3) of the Principal Act for publication in the Government Gazette and excess land came to be determined.

(5) A notice under Section 10(5) of the Principal Act was issued on 07/11/2007, calling upon the petitioners to hand over possession. A copy of the said notice was also forwarded to the Tahsildar. The petitioners then contended that the ULC proceedings, which were in respect of the aforesaid two Khasras and were registered as Proceedings No. 2033/1976, stood abated, as, upon obtaining a certified copy of the record, they came to know that possession of the land had never been taken. The petitioners then contended that, as possession of the land had not been taken and the Principal Act stood repealed with effect from 01/12/2007, the proceedings had lapsed.

(6) The petitioners then relied upon the law laid down by the judgment of co-ordinate Bench of this Court in case of Voltas Limited and another vs. Additional Collector & Competent Authority & others 2008 (5) Bom.C.R. 746. Learned counsel for the petitioners has also invited our attention to record page 87, which is the notice under Section 10(5) of the Principal Act which shows that column showing the date of taking over the possession is kept blank.

(7) In pursuance with the notice issued by this Court, the respondent No.1 has appeared and filed its reply and has contended that in the original proceedings there is possession receipt at page 84 showing that the concerned Talathi Mouza : Chinchbhavan has taken possession of the surplus land. It was then contended by the respondents that even in revenue record, the name of Government of Maharashtra is recorded as an owner which clearly shows that petitioners are not entitled for the reliefs claimed.

(8) With the help of respective counsel, we have gone through the record of the case and have given thoughtful consideration to the arguments advanced.

(9) It is necessary to state that issue as regards non-taking of possession of the land before the repeal of the Principal Act (on 01/12/2007) and lapsing of proceedings is well settled by the judgment of co-ordinate Bench of this Court in case of Voltas (supra). The co-ordinate Bench in the said judgment has categorically held that the statement of objection and reasons of the Repeal Act shows that Principal Act was required to be repealed because of the unanimous public opinion that not only the Principal Act has failed to achieve what was expected of it but it had also pushed up the land prices to unconscionable levels. It was further stated that if the possession of the land is not taken by the authorities before the date of Repeal Act (i.e. 01/12/2007), the proceedings under the Principal Act will abate.

(10) The respondent No.1 has categorically stated in his affidavit-in-reply that the predecessor-in-title of the petitioners, namely, Amrut, owned and possessed land admeasuring 7915.80 square metres, comprising 4209.00 square metres out of Survey No.308, 3521 square metres out of Survey No.309, and a house admeasuring 185.80 square metres, situated at Mouza Chinchbhavan.

(11) The original owner had filed declaration under Section 6(1) of the Principal Act and ULC Case No.2033/1976 was registered. The area admeasuring 6415.80 square metres of the land was declared surplus as per order passed under Section 8(4) of the Principal Act on 25/03/1983. In order to take over the possession, the notice under Section 10(5) of the Principal Act was issued on 07/11/2007 and the owner was called upon to deliver possession of the surplus land.

(12) The main crux of the arguments of the petitioner is that possession was never taken, whereas the respondents have categorically relied upon page 84 – possession receipt in order to contend that the possession was taken. Page 84 is the possession receipt. Surprisingly, the said document does not bear the signature of either the person handing over possession or the person taking over possession. It does not even bear any date. In the absence of the signatures of the persons handing over and taking over possession, we do not think that the said document would be sufficient to deny relief to the petitioners.

(13) Learned counsel for the petitioner has rightly relied upon page 87 which is notice under Section 10(5) of the Principal Act which shows that the original owner Amrut was informed that possession in respect of the land be delivered to the Government through Tahsildar, but the coloumn showing fixing of date of taking of the possession is kept blank. Thus, it can not be said that when the Principal Act was repealed by the State Government, the possession was taken.

(14) The undisputed facts show that the predecessor of the petitioners had purchased the land when the Principal Act was in force. It is also not disputed that the original declarant was asked to handover the possession in pursuance with the notice issued under Section 10(5) of the Principal Act. The Principal Act was repealed by Repeal Act, 1999 which was adopted by both the houses of Maharashtra Legislature on 29/11/2007 as notified on 01/12/2007.

(15) In case of Voltas (supra), the question was whether by reason of repeal of the Act all proceedings under the Principal Act would abate, was answered by observing that, if the possession of the land has not been taken by the State Government, the proceedings would abate and further proceedings can no longer be proceeded. The respondent/State could not produce a single document on record to show that possession was either taken by the respondents or was handed over by the declarant.

(16) Just because the name of the Government is recorded in 7/12 extract that would not be a ground to infer the possession. It is settled law that such revenue entry is for fiscal purpose and do not create title or declare vesting of land in the Government.

(17) Accordingly, the petition is allowed. It is declared that the proceedings initiated vide ULC Case No. 2033/1976 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, in respect of the land which was the subject matter of the aforesaid proceedings, have lapsed and abated in view of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

(18) Rule is made absolute in the above terms.