SMT. DAROTHI CLARE PARREIRA AND ORS.versusSTATE OF MAHARASHTRA AND ORS.

A              SMT. DAROTHI CLARE PARREIRA AND ORS.
                                v.
                  STATE OF MAHARASHTRA AND ORS.

                                   JULY 25, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Urban Land (Ceiling and Regulation) Act, 1976 : Sectio11s 3, 6 to 10,
    20, 21 and 36.

C          Land ceilin~Detennination of surplus /and-Procedure fo1-Man11er
    of disposal of application under Sections 20 and 21-Landowner found i11
    possessio11 of swplus /and-Notification under Section 10(3) published vest-
    ing the excess land in the Govemment-Application under section 21 filed
    much after the date of vesting and publication of 11otificatio11 u11der Se~tio11
    10(3)-Clzalle11ge to notification-Held on publication of notification excess
D   vacant land stands vested in State free from all encwnberances subject to
    decision in appeal-The effect of the vesting is not contingent upon filing an
    application for disposal under either Section 20 or 21-lt cannot be said that
    the competent authority has no power to have the notification under Section
     10(3) published in the Gazette until the application either under Section 20
    or 21 is disposed of-171e ve1y language of Sections 20 and 21 and the exercise
E
     of the power thereunder would a1ise only when the land stands vested in the
    Government.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3331 of
    1982.
F
         From the Judgment and Order dated 24.9.92 of the Bombay High
    Court in W.P. No. 877 of 1979.

          Bhimrao Naik, V.A. Bobde, R.P. Bhatt, B.V. Desai, A.I. Talegwkar,
    Cecil, Fallerio, Ms. Meeta Sharma, P.J. Mehta, M.D. Adkar, Mukul
G   Mudgal, M.N. Shroff, Ms. Reema Bhandari, Dr. R.B. Masodkar, S.M.
    Jadhav, D.M. nargolkar, Yatin Sharma, A.M. Khanwilkar, S.S. Jauhar,
    (NP) for the appearing parties.

            The following drder of the Court was delivered :

H           This appeal by special leave arises from the judgment of the Division
                                           46
                      DAROTHICIAREPARREIRA v.STATE                              47

    Bench of the Bombay High Court made on September 24, 1982 in W.P.                 A
    No. 877/79.

           The undisputed facts are that the appellants were the erstwhile
    owners of G.T.S. Nos. 13/1, 13/2 and 13/3 in Pune on land of an extent of
    20,948.40 sq. meters. After the Urban Land (Ceiling & Regulation) Act,
                                                                                      B
    1976 (33 of 1976) (for short, the "Act") had c0me into force, the appellants
    filed their return under Section 6 of the Act. The competent authority had
    issued notice on September 20, 1977. The appellants had filed their objec-
    tions on December 7, 1977. They also filed application under Section 20
    for exemption. By proceedings dated December 22, 1977, the objections on
    final statement were over-ruled and the appellants were found to be in            c
    possession of surplus land admeasuring 13,410.88 sq. meters. Then the
    objection on final statement came to be called and the same was under
    Secllon 10(2) of the Act considered and rejected. Notification under
    Section 10(3) of the Act was published vesting the excess land in the
    Government w.e.f. March 12, 1979 and the same came to be published in             D
    the State Gazette on February 16, 1978. There after the appellants have
•   filed an appeal which came to be dismissed on the ground of !aches. The
    appellants filed the writ petition challenging the validity of the notification
    under Section 10(3) which was upheld.

           From the record, it would appear that the application filed under          E
    Section 20 was disposed of on January 22, 1979 and thereafter the publi-
    cation under Section 10(3) came to be made. It also now turns out that on
    March 29, 1979, the appellants made an application under Section 21 and
    simultaneously, they filed writ petition in the High Court challenging the
    notification issued under Section 10(3). The Division Bench held that the         F
    procedure followed by the competent authority was not vitiated by any
    error of law. Since the land had already been vested in the Stale on March
    12, 1979 pursuant to the notification published under Section 10(3), the
    question of further opportunity to the appellants did not arise. When the
    matter was heard by this Court on November 21, 1995, Shri Bhimrao Naik,
    learned senior counsel, had drawn our attention to the fact that his applica- G
    lion made under Section 21 was pending consideration. The appellants had
    not mentioned the fact of their filing application under Section 20 and
    rejection thereof before the publication of the notification under Section
    10(3). Since it was contended that the application was pending, we directed
    the counsel for the State to find out as to the stage of the matter. In H
    48                   SUPREME COURT REPORTS 11996] SUPP. 4S.C.R.

A   furtherance thereof, we were informed that the application was pending.
    An affidavit was filed by Mr. P.A. Mane, Additional Collector in this Court
    that the application was pending consideration and sought permission of
    its disposal. Accordingly, by order dated February 22, 1996, time was
    granted to the Government to consider and dispose of the application
    within six weeks from the date of the receipt of the said order. An order
B
    dated 8.7.1996 disposing of the application under Section 21 has be:en
    placed before us.

         Shri Naik, learned senior counsel for the appellants, has contended
  that until the application under Section 21 of the Act was considered and
c disposed of, the competent authority had no power to have the notification
  under Section 10(3) published. What all the competent authority could do
  under the Act was to finalise the determination of the excess land and then
  await the decision of the authority under Section 21 and thereafter notifica-
  tion under Section 10(3) could be published. In support thereof, he placed
D reliance on the instruction issued by the Government of India dated
  September 15, 1976 under Section 36 of the Act as well as the direction
                                                                                  •
  issued by the Government of Maharashtra dated May 22, 1989 following
  the decision of another Division Bench of the Bombay high Court as to the
  manner of the disposal of application under Sections 20 and 21 and the
  action to be taken thereon by the competent authority. In that light, the
E publication of the notification under Section 10(3) was illegal. He also
  contended that the manner of the disposal of the application under Section
  21 is not correct in law. He points out paragraphs 17 and 18 of the order
  dated July 8, 1996 disposing of the application under Section 21 contending'
  that since the Government have already taken the decision for allotment
F of the land to Pune Housing & Area Development Board and received the
  money from it, the rejection of the application on that ground is illegal. He
  contends that the appellants have valuable right under Section 21 to
  formulate the scheme which was required to be considered. The scheme
  was already drawn and approved by the MHRDA and the validity of the
   scheme was not scrutinised. Therefore, the rejection was not valid in law.
G Shri Bobde, learned senior counsel for some of them, further contended
   that by operation of Section 3 of the Act, operation of Section 10(3) and
   21 should be read together. If so read, the consequence would be that until
   the application under Section 21 is disposed of, the notification under
   Section 10(3) should not be published. He further points out that since the
H issue had already been pre-judged, namely, allotment of the land to the
                 DAROTHICLAREPARREIRA v.STATE                           49

Pune Housing & Area Development Board, this is not a valid considera- A
lion. Therefore, the direction may be given either to the State or to the
competent authority to reconsider the matter. It is contended by Mr. R.P.
Bhatt, learned senior counsel for the Board and Dr. R.B. Masodkar,
learned counsel for the respondents, that in the writ petition before the
High Court, no objection have been taken as regards the omission on the
                                                                             B
part of the competent authority to take action under Section 21. Only the
legality of the procedure adopted under the Act for determination of the
surplus land was canvassed. The High Court answered the questiom
against them and the correctness thereof is not canvassed before this Court.
The action taken by the competent authority is in accordance with Jaw. It
is further pointed out that the rejection of the application under Section C
21 was valid because the Government had taken decision lo allot the land
to the Housing & Area Development Board equally for public purpose.
Therefore, the rejection cannot be consider to be invalid.

        Having considered the respective contentions, the question that D
 arises for consideration is : Whether publication of the notification under
Section 10(3) of the Act in the Gazette is in accordance with law ? No
 doub~ this question was not squarely put in issue before the High Court
in the manner in which Shri Naik and Shri Bobde have posed before us.
 Having considered the scheme of the Act, we find that there is no force in
their contentions. It is true that Section 3 postulates that except as other- E
wise provided in the Act, on and from the commencement of the Act, no
person shall be entitled to hold any vacant land in excess of the ceiling limit
in the territories to which the Act applies under sub-section (2) of Section
1. Sections 6 to 10 prescribe the procedure for determination of the excess
urban land. Admittedly after filing of statement, opportunity had been
given they had been heard and excess land over the ceiling limit had been F
determined. Pursuant to the decision taken under Section 10(1) of the Act,
objections came to be filed under Section 10(2) and objections also were
considered and an opportunity was given before their consideration and
objections came to be rejected. The question then is : whether the com-
petent authority has to await the decision under Sections 20 and 21 before G
declaring and publishing the excess and under Section 10(3) by a notifica-
tion in the Gazette. The scheme of the Act does indicate that until the date
of the publication in the Gazette prescribing a date on and from which the
excess land stands vested in the State, the owner continues to be the owner
of the excess land and entitled to remained in possession thereof. On
publication of the notification under Section 10(3) and after putting a date H
    50                    SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A from which the land stands vested in the Slate and after publication of the
    notification in the Gazette and on and from the date mentioned therein;
    the excess vacant land stands vested in the State free from all encumbran-
    ces, subject to the decision in appeal, if any, filed according to law.

          The previous owner stands divested of right, title and interest in the
B land subject to the right to make application provided under Sections 20
    and 21. It is difficult to accept the contention of the learned counsel for
    the appellants that the competent authority has no power to have the
    notification under Section 10(3) published in the Gazette until the applica-
    tion either under Section 20 or 21 is disposed of. The very language of

c
    Sections 20 and 21 and the exercise of the power thereunder would arise
    only when the land stands vested in the Government. The power of
                                                                                      '
    examination and exemption would arise only when the Government be-
    comes the owner and the erstwhile owner seeks to obviate the hardships
    under Section 20 or to subserve the housing scheme for weaker sections
    under Section 21 as envisaged thereunder. Thereat, the Government is
D   required to consider whether the proposals made by the erstwhile owner
    for undertaking the scheme as envisaged under Section 21 or hardships as
    envisaged under Section 20 for exemption would merit consideration. In
    this case, admittedly, the application under Section 20 came to be filed
    though that was suppressed before the High Court and this Court and
    came to be dismissed before notification under Section 10(3) of the Act
E   was published. It also appears, as stated earlier, that application under
    Section 21 was filed on March 29, 1979, the date on which the appellants
    had filed the writ petition in the High Court. It would, therefore, be seen
    that the application came to be filed much after the date of the vesting and
    publication of the notification under Section 10(3) of the Act. The effect
     of the vesting is not contingent upon filing an application for disposal under
F    either Section 20 or 21. We do not go into correctness of the order passed
    by the Government under Section 21 for the reason that it would be open
     to the Government and the Government have stated in their order that they
    have already decided to allot the land for another equally efficacious public
     purpose. Therefore, we cannot sit over the decision taken by the Govern-
G    men! holding it illegal.

           Considered from this perspective, there is no merit in the appeal. It
     is accordingly dismissed. No costs.

     T.N.A.                                                     Appeal dismissed.