B. R. GAVAI, J.: - By way of present petition, declaration is sought that Respondent Nos.2 to 4 are not entitled to take possession of an area admeasuring 1.07 acres out of Khasra Nos.24/1 and 36/2 as the lands were allowed to be retained by the petitioners under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the U.L.C. Act"). An order of permanent injunction is also sought thereby prohibiting the respondents from interfering with the possession and proprietary rights of the petitioners in the aforesaid lands.

2. The petitioners claim to be owners of certain lands in Khasra Nos.24/1 and 36/2 of Mouza Wanjari, Tq. and Distt. - Nagpur. In respect of the said lands along with other lands in the area, a notification came to be issued on 5th September, 1963 by the respondent No.2 - Nagpur Improvement Trust u/s.39 of the N.I.T. Act, which is analogous to section 4 of the Land Acquisition Act, for acquisition of the said lands for the Housing Scheme known as "Wanjari Housing Accommodation Scheme". Thereafter, a notification u/s.45 of the N.I.T., which is analogous to Section 6 of the Land Acquisition Act, came to be issued on 4 - 3 - 1967. Subsequently, an Award under the provisions of the Land Acquisition Act (hereinafter referred to as "the Acquisition Act") came to be passed on 18th March, 1975. It appears thereafter coming into effect of the U.L.C. Act, the petitioners filed statement as required under the provisions of the U.L.C. Act. It is the contention of the petitioners that the competent Authority under the provisions of Section 9 of the U.L.C. Act determined the vacant land held by the petitioners in excess of the Ceiling limit. It is the contention of the petitioners that, it was held that all of them were possessing 1500 sq. mtrs. retainable land and insofar as the land in excess of ceiling limit is concerned, the land was acquired under the provisions of section 10 of the U.L.C. Act.

3. The petitioners further submit that, thereafter, apprehending that the respondents will take possession of the retainable land, they approached this Court by way of Writ Petition No.3792 of 2002. It is submitted that a pursis was filed on behalf of the N.I.T., wherein it is stated that possession of the said retainable land of 1.07 acres will not be taken without following due process of law. This Court vide order dt.4 - 12 - 2003, thereafter, disposed of the said petition taking on record the pursis filed by the N.I.T. Vide the said order, the contentions available to the petitioners were kept open.

4. Subsequent thereto, the petitioners have been issued notice dt.19th March, 2004 thereby directing them to hand over possession in pursuance to the Award dt.l8 - 3 - 1975. In response to the said notice, the petitioner made representation on 18th March, 2004 to the Land Acquisition Officer pointing out therein the order passed in Writ Petition No.3792. However, by communication dt.8 - 6 - 2004, the Land Acquisition Officer directed the petitioners to hand over possession. It was stated in the said communication that if the petitioners do not hand over possession, possession shall be taken through the State Machinery. Challenging the said communication, the petitioners have approached this Court praying for the declaration and prohibitory injunction as aforesaid.

5. Heard Mr. Chandurkar, learned counsel for the petitioners. Mr. Ahirkar, learned A.G.P. for Respondent Nos.1 and 3 and Mr. Mishra, learned counsel for Respondent No.2.

6. The main contention raised on behalf of the petitioners in the present petition is that once a person is permitted to hold retainable land under the provisions of the U.L.C. Act, then such a retainable land cannot be permitted to be acquired under the Acquisition Act. In support of this 'submission, reliance is sought to be placed on Section 42 of the provisions of the U.L.C. Act and the Judgments of two Division Benches of this Court in t

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