Case Note & Summary
The matter before the Bombay High Court arose from a writ petition under Article 226 of the Constitution of India filed by Chhaganlal Khimji and Co. Ltd., a company which claimed to be the owner of certain surplus vacant land that had been acquired by the State under the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act). The petitioner sought to challenge an order dated 23 November 2007 passed by the then Chief Minister of Maharashtra, which had set aside an earlier revisional order under Section 34 of the ULC Act and confirmed the allotment of the land to the Bombay Electric Supply and Transport Undertaking (BEST) for a bus depot. The surplus land, admeasuring 5616.43 square meters at village Nahur, Mumbai, had been identified as such in proceedings that commenced in 1982 with an order under Section 8(4) of the ULC Act. The final statement under Section 9 was prepared in October 1982, and an appeal under Section 33 filed by the seven Trivedi brothers (from whom the company derived its interest) was dismissed in March 1985, confirming that the surplus land was held by the petitioner company. A notification under Section 10(1) was issued in January 1986, and a vesting notification under Section 10(3) was published on 9 April 1999, declaring the land deemed to have been acquired and vested in the State free from encumbrances from 15 April 1999. In 2003, when the petitioner learnt of a Cabinet Sub-Committee decision to allot the land to BEST, a request for stay and permission to file a revision under Section 34 was made. The revisional authority allowed the revision on 1 October 2004, setting aside the Section 8(4) order and the Section 10(3) notification, and directing the competent authority to reconsider. However, by a communication dated 15 September 2006, the petitioner was informed that the Section 34 order had been cancelled. Subsequently, a notice under Section 10(5) dated 17 October 2006 was issued and a panchanama of taking possession was drawn on 30 October 2006, though the petitioner disputed the validity of the notice and the taking of possession. An earlier Writ Petition No. 1170 of 2007 was filed, resulting in a High Court order dated 26 July 2007 directing the competent authority to hear the parties and pass a fresh order within four weeks, while maintaining status quo. The then Chief Minister held a hearing on 13 August 2007 but passed the impugned order only on 23 November 2007, after the expiry of the court‑set deadline. The ULC Act was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which came into force in Maharashtra on 29 November 2007. The court, in its opening observations, expressed strong disapproval of attempts by builders and developers to target excess vacant lands that had validly vested in the State before the repeal, stating that such lands cannot revert to the original owners merely because of the repeal. The judgment underscored that concluded proceedings under the ULC Act could not be reopened by invoking the writ jurisdiction on the strength of the repeal. However, the excerpted portion of the judgment ends before the court sets out its full analysis, the detailed submissions of the parties, and the final operative order.
Headnote
A) Urban Land (Ceiling and Regulation) Act, 1976 – Repeal – Effect on vested surplus land – Sections 8, 9, 10, 33, 34 – Where surplus vacant land has been validly acquired by the State and possession taken over before the coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, such land does not revert to the original owner upon repeal; the land continues to vest in the State free from encumbrances – Held that the repeal cannot be used as a device to reopen concluded proceedings (Para 1).
Issue of Consideration
Whether the order dated 23 November 2007 setting aside the revisional order and confirming land allotment to respondent no. 3 is valid; whether the repeal of the ULC Act affects the vesting of surplus land in the State
Law Points
- Lands vested in state under ULC Act before repeal remain with state
- repeal does not revert them
Case Details
2016 LawText (BOM) (10) 124
WRIT PETITION NO. 598 OF 2012
S. C. Dharmadhikari, Dr. Shalini Phansalkar-Joshi
Mr. Fredun Devitre, Mr. Pravin Samdani, Mr. Karl Tamboli, Ms. Bindi Dave, Mr. Raghav Gupta for petitioner; Mr. P. K. Dhakephalkar, Ms. Geeta Shastri for respondent nos. 1 and 2; Mr. Harinder Toor, Mr. Rakesh Singh, Mr. Kunal Chheda for respondent no. 3
Chhaganlal Khimji and Co. Ltd.
1. State of Maharashtra, 2. Additional Collector and Competent Authority (U.L.C.), 3. Bombay Electric Supply and Transport Undertaking, 4. Superintendent of Land Records, 5. City Survey Officer, Mulund
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Nature of Litigation
Writ petition under Article 226 challenging the order dated 23 November 2007 passed by the then Chief Minister, which set aside an earlier revisional order under Section 34 of the ULC Act and confirmed allotment of surplus vacant land to respondent no. 3.
Remedy Sought
Petitioner seeks writ of certiorari to quash the impugned order dated 23 November 2007 and all actions taken pursuant to it, and a writ of prohibition to restrain respondents from acting on the impugned order.
Filing Reason
The petitioner alleges that the impugned order was passed without jurisdiction and in violation of principles of natural justice, after the ULC Act had been repealed.
Previous Decisions
Earlier, the revisional authority under Section 34 had set aside the surplus land determination on 1 October 2004, but this was recalled by the state without hearing; Writ Petition No. 1170 of 2007 had directed a hearing, leading to the impugned order.
Issues
Whether the order dated 23 November 2007 passed by the then Chief Minister, exercising power of review/further revision, is legal and valid.
Whether the repeal of the ULC Act affects the vesting of surplus land in the State.
Whether the principles of natural justice were followed before passing the impugned order.
Judgment Excerpts
This writ petition is one more instance of how the builders and developers in Mumbai target excess vacant lands vesting in the state by virtue of the Urban Land (Ceiling and Regulation) Act, 1976 by relying on the repeal thereof. Such lands in possession and taken over by the State legally and validly before the Repeal Act coming into force cannot revert back to the owners or those claiming to be in possession.
On 1st October, 2004, the revisional authority allowed the revision application filed under section 34 and set aside the order passed under section 8(4) of the ULC Act and the notification under section 10(3).
On 26th July, 2007, this court disposed of Writ Petition No. 1170 of 2007, inter alia, recording the petitioner's grievance that the order dated 17th October, 2006 (section 10(5) notice) was based on an order dated 15th September, 2006 recalling the section 34 order. This court held that the section 34 order was set aside on 15th September, 2006 and the impugned order issued in pursuance thereof was without granting any opportunity of being heard to the petitioner, who claims to be in possession of the property in dispute.
Procedural History
1982: Order under section 8(4) of ULC Act declaring surplus land; Final statement under section 9 prepared. 1985: Appeal under section 33 dismissed confirming surplus land held by petitioner. 1986: Gazette notification under section 10(1) issued. 1999: Notification under section 10(3) deeming land vested in State. 2003: Petitioner learnt of allotment to BEST; requested stay and revision. 2004: Revision under section 34 allowed, setting aside earlier orders. 2006: Communication cancelling revision order; section 10(5) notice issued; panchanama of taking possession drawn; possession handed to BEST. 2007: Earlier Writ Petition No. 1170 of 2007 filed; High Court directed hearing by competent authority. 23.11.2007: Impugned order passed by Chief Minister setting aside revision and confirming allotment. 29.11.2007: ULC Act repealed in Maharashtra. 2012: Present writ petition filed.
Acts & Sections
- Urban Land (Ceiling and Regulation) Act, 1976: 8(4), 9, 10(1), 10(3), 10(5), 33, 34
- Constitution of India: Article 226
- Companies Act, 1956:
- Urban Land (Ceiling and Regulation) Repeal Act, 1999:
