2010 Supreme(Bom) 936

High Court of Judicature at Bombay
MR. JUSTICE P.B. MAJMUDAR & THE HONOURABLE MR. JUSTICE R.M. SAVANT
Damodar Laxman Navare & Others
Versus
State of Maharashtra & Others
WRIT PETITION NO.6300 OF 2009
Decided on: 08-07-2010

Headnote:Urban Land (Ceiling and Regulation) Act, 1976 - Sections 8(4) and 20(1) - Registration Act, 1908, Sections 34 and 35 - Powers of Collector - To issue directions to Registrar, not to register documents presented for registration - As construction sought to be transferred done on Government land and cannot be transferred without permission of Government - Held - Orders of Collector to this effect not under any authority - Lands allegedly exempted under Section 20 of Act of 1976 - State Government directed to take fresh decision in matter in light of Repeal Act, 1999 and in light of conspectus facts as narrated - It is open for parties to agitate matter before appropriate forum in appropriate proceedings. - Hence in the light of the legal position as enunciated by the judgments (supra), Court has no hesitation to hold that the directives of the nature contained in Exhibit L could not have been issued and, therefore, the same are illegal and ultra vires the powers of the authorities under the said Act. The said communication Exhibit L dated 11.2.2009 is, therefore, required to be quashed and set aside and is accordingly quashed and set aside.

       In so far as the second challenge of the petitioners is concerned i.e. letter dated 18.6.2009 Exhibit M to the petition, by the said letter the petitioners have been called upon to deposit an amount of Rs. 56,97,263/- which the petitioners have now deposited without prejudice to their rights and contentions in the above petition. The said letter also in a way threatens the petitioners that in the event, the said amount is not deposited by the petitioners, the follow up action will be taken by the authorities including the launching of criminal prosecution against the petitioners. It would be worth while to note that the letter itself is a sequitur to the letter dated 16.11.2007, by which a decision was taken by the State Government to grant extension of time to the petitioners to complete the scheme on condition of penalty that would be levied by the State Government. By the impugned communication Exhibit M, the petitioners have been informed of the amount of penalty that they would have to pay. Therefore, the petitioners have in a way challenged the consequential order without challenging the main order dated 16.11.2007, it would also be pertinent to note that all the orders upto the order dated 16.11.2007 have been passed when the said Act was very much in force. Though it is the case of the petitioners that since they have not complied with the order granting them extension on the condition of payment of penalty and, therefore, there is no exemption order in existence today and, the petitioners are, therefore, not bound to develop the said property in terms of the exemption order, in Court view, in the facts and circumstances of the present case, it is not necessary for Court to go into the said issue at this stage. As indicated earlier, the petitioners have been informed that unless they pay the amount of penalty extension would not be granted and if penalty is not paid, the same may be recovered as arrears of land revenue as well as the petitioner are threatened with criminal prosecution. The petitioners have approached this Court against the said Exhibit M, in the context of the said Act being repealed. It is the case of the petitioners that the Repeal Act would have far reaching consequences for them in as much as on account of the repeal the scheme cannot be said to be in existence.

       Per contra, it is the case of the respondents that the order dated 7.11.2007 having being passed prior to the Act being repealed and when the Act was in force is saved by sub-section 3(1)(b) of the Repeal Act as indicated above, Court need not go into the said aspect as in Court view it would be necessary for the State Government to have a fresh look at the matter considering the aforesaid conspectus of facts. Court, therefore, set aside the impugned communication Exhibit M and direct the State Government to take a fresh decision in the matter in the light of the Repeal Act 1999 and in the light of the conspectus of facts as narrated above. Since Court has directed the State Government to take a fresh decision, Court has not delved into the merits of the rival contentions and leave it to the parties to agitate the same before the appropriate forum in appropriate proceedings. Considering the fact that the scheme is being implemented since the year 1990, it would be in the interest of the parties if the State Government takes a decision expeditiously and not later than two months from date.