VINAYAK KASHINATH SHILKARversusDY. COLLECTOR & COMPETENT AUTHORITY AND OTHERS

                       [2012] 2 S.C.R. 219


                VINAYAK KASHINATH SHILKAR                              A
                                 V.
     DY. COLLECTOR & COMPETENT AUTHORITY AND
                         OTHERS
             (Civil Appeal No. 2615 of 2012)
                                                                       B
                      FEBRUARY 29, 2012.

           [R.M. LODHA AND H.L. GOKHALE, JJ.]

     URBAN LAND (CEILING AND REGULATION) REPEAL
 ACT, 1999:                                                            C
       s.3 (2) read with ss. 3(1)(a) and 10(3) - Abatement of
  proceedings initiated under the 1976 Act - Held: Mere vesting
  of vacant land with State Government by operation of law
  without actual possession is not sufficient for operation of
                                                                       0
. s.3(1)(a) - In the instant case, the possession of the subject
  land has not been taken by State Government and, therefore,
  appellant was entitled to the relief and High Court ought to
  have declared that the proceedings under the Act in relation
  to the subject property' stood abated - It is declared accordingly   E
  - Urban Land (Ceiling and Regulation) Act, 1976.
     The appellant filed a writ petition before the High
 Court stating that the proceedings under the Urban Land
 (Ceiling and Regulation)·Act, 1976 (the Act), in respect of
 the subject land be declared as abated in view of the                 F
 Urban Land (Ceiling and Regulation) Repeal Act, 1999
 (Repeal Act), which came to be adopted and became
 operative in the State of Maharashtra w.e.f. 29.11.2007. It
 was stated in the writ petition that the possession of the
 subject land was with the petitioner and at no point of               G
 time his possession was disturbed or attempted to be
 taken by the respondents. The Division Bench of the
 High Court dismissed the writ petition holding that the
 possession of the .property had already been taken by the
                               219                                     H
    220             SUPREME COURT REPORTS              [2012] 2 S.C.R.


A State Government under the Act. Aggrieved, the writ
 · petitioner filed the appeal.
                 Allowing the appeal, the Court
      HELD: 1.1. It is clear from the provisions of s. 3 of the ,
B Urban Land (Ceiling and Regulation) Repeal Act, 1999
  that where the possession of the vacant land has not
  been taken over by the State Government or by any
  person duly authorised by the State Government in this
  behalf or by the Competent Authority, the proceedings
c under the Act would not survive. Mere vesting of the
  vacant land with the State Government by operation of
  law without actual possession is not sufficient for
  operation of s.3(1 )(a) of the Repeal Act. [para 1O] [233-F-
    G]
D      Ritesh Tiwari & Anr. .vs. State of U. 0. & Ors. 2010 (11)
    SCR 589 = 2010 (10) SCC 677 - relied on.
       1.2 In view of the legal position enunciated by this
  Court in Ritesh Tewari1 and the factual situation that the
E possession of the subject land has not been taken by the
  State Government, the appellant was entitled to the relief
  in terms of para 9(b) in the writ petition and the High Court
  ought to have declared that the proceedings under the
  Act in relation to the subject property stood abated. It is
F declared accordingly. [para 12] [234-F-G]
                                 Case Law Reference:
             . 2010 (11) SCR 589         relied on            para 11
         '   '
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 2615 of 2012.
       'From the Judgment & Order dated 05.01.2009 of the High
    Court of Judictaure at Bombay in Civil Writ Petition No. 4867
    of2008.
H                U.U. Lalit, Amol Chitale,Jessal Wahi, Nirnimesh bube for
  VINAYAK KASHINATH SHILKAR v. DY. COLLECTOR 221
            & COMPETENT AUTHORITY

the Appellant.                                                         A
      Uday B. Dube, Asha Gopalan Nair for the Respondents.
     The Judgment of the Court was delivered by
     R.M. LODHA, J. 1. Leave granted.
                                                                        B
       2. The appellant herein was the writ petitioner before the
 High Court. In the Writ Petition, he prayed that the proceedings
 in respect of the land bearing survey No. 195, Hissa No. 2 (New
  195/1) of Village Parsik, District Thane under the Urban Land
 (Ceiling & Regulation) Act, 1976 (for short "the Act") on the . C
 basis of the return filed by Nabibai Tukaram Patil may be
 declared as abated in view of the repeal of the Act. The
 appellant asserted that the possession of the subject land was
 with him and at no point of time, his possession was ever
 disturbed or attempted to be taken by the respondents.
                                                                        D
       3. In response to the Writ Petition, a reply affidavit was filed
·by the Additional Collector and Competent Authority, Thane
 Urban Agglomeration, Thane before the High Court. In
 paragraph 3 of that affidavit, it is stated that notice under
 Section 10 (5) of the Act was issued to the appellant on E
 February 25, 2005 calling upon the appellant to hand over the
 possession of the subject land within 30 days from the receipt
 of the said notice and, thus, the subject land had vested with
 the State Government. In paragraph 10 of the said affidavit, it
 is stated that the Competent Authority had already taken action
                                                                        F
 under Sections 10(3) and 10(5) of the Act and, therefore, the
 subject land is deemed to have vested in the State
 Government.
     4. The Division Bench of the Bombay High Court
dismissed the Writ Petition by observing that the possession          G
of the subject property had already been taken by the
Government of Maharashtra under the Act.
    5. Mr. U.U. Lalit, learned senior counsel for the appellant
submitted that the finding of the High Court that the possession
                                                                       H
     222      SUPREME COURT REPORTS               (2012] 2 S.C.R.


A .of the property had been taken by the Government of
  Maharashtra was factually incorrect. He submitted that, as a
   matter of fact, even in the reply affidavit before the High Court
   filed on behalf of respondent No. 1, no such statement about
   possession was made. The subject land although had vested
B in the Government of Maharashtra on action having been taken
   under Sections 10(3) and 10(5) of the Act, learned senior
   counsel submitted but actual possession continued with the
   appellant.
       6. Mr. Uday B. Dube, learned counsel for the respondents
C submitted and, in our view fairly that there was nothing on record
  to indicate that actual possession of the subject land had been
  taken over by the respondents from the appellant. He further
  submitted that the observation of the High Court that the
  possession of the subject land had already been taken by the
D Government of Maharashtra was based on the assertion made
  in the reply affidavit filed on behalf of respondent No. 1 that land
   had vested in the State Government on action having been·
  taken under Sections 10(3) and 10(5) of the Act and for no other
   reason.
E    · 7. The Act came to be repealed by the Urban Land (Ceiling
  and Regulation) Repeal Act, 1999 (for short" the Repeal Act")
  on March 22, 1999. However, the State of Maharashtra did not
  adopt the Repeal Act immediately. On resolution having been
  passed by the Maharashtra Legislative Assembly as well as
F Maharashtra Legislative Council that w.e.f. November 29, 2007,
  the Repeal Act came to be adopted and became operative in
  the State of Maharashtra.
           8. Section 2 of the Repeal Act reads as follows:
 G         "2. The Urban Land (Ceiling and Regulation) Act, 1976
           (hereinafter referred to as the principal Act) is hereby
           repealed."
           9. Section 3A of the Repeal Act reads as follows:
           "3: Savings
 H
 VINAYAK KASHINATH SHILKAR v. DY. COLLECTOR 223
    & COMPETENT AUTHORITY [R.M. LODHA, J.]
    (1) The repeal of the principal Act shall not affect-           A
    (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
    a~~~                                                            B
    (b) the validity of any order granting exemption under sub-
    section (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               C
    condition for granting exemption under sub-section (1) of
    section 20.
     (2) Where-
     (a) any land is deemed to have vested in the State             0
     Government under sub-section (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
                                                                    E
     (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."
                                                                    F
     10. It is c!ear from the above provisions that where the
possession of the vacant land has not been taken over by the
State Government by any person duly authorised by the State
Government in this behalf or by the Competent Authority, the
proceedings under the Act would not survive. Mere vesting of        G
the vacant land with the State Government by operation of law
without actual possession is not sufficient for operation of
Section 3(1 )(a) of the Repeal Act.
    11. We are fortified in our view by a recent decision of this
Court in Ritesh Tewari and another vs. Stat6 of Uttar Pradesh       H
    224        SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A and others 1 • This Court in Retiesh Tewari1 considered the
  matter thus:
           "Shri Jayant Bhushan, learned Senior Counsel appearing
           for the appellants has submitted that as the State
           Government had not taken possession of th eland in
B          exercise of its powers under Section 10(6) of the 1976 Act.
           on coming of the 1999 Act into force, the proceedings
           stood abated and the respondents have no business to
           interfere with the peaceful possession and enjoyment of
           the property.
c          We find full force in the submissions so made by Shri
           Jayant Bhushan to a certain extent, and hold that all
           proceedings pending before any court/authority under the
           1976 Act, stood abated automatically on coming of 1999
           f.ct into force, provided the possession of the land involved
D          in a particular case had not been taken by the State. Such
           a view is in consonance with the law laid down by this
           Court in Pt. Madan Swaroop Shrotiya Public Charitable
           Trust vs. State of UP. (2000)6SCC 325, Ghasitey Lal
           Sahu vs. Competent Authority (2004)13 SCC 452,
E          Mukarram Ali Khan vs. State of UP. (2007)11 SCC 90
           and Sulocflana Chandrakant Galande vs. Pune Municipal
           Transport (2010)8 SCC 467."
        12. In view of the legal position enunciated by this Court
 F in Ritesh Tewari1 and the factual situation that the possession
   of the subject land has not been taken by the Government of
   Maharashtra, we are satisfied that the appellant was entitled
   to the relief in terms of para 9 (b) in the Writ Petition and the
   High Court ought to have declared that the proceedings under
   the Act in relation to the subject property stood abated. Now it
·G is declared accordingly.
           13. Appeal is allowed as above with no order as to costs.

    R.P.                                              Appeal allowed.

H   1.    (2010) 10 sec 677 .


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