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2014 Supreme(Bom) 1943
IN THE HIGH COURT OF BOMBAY
Abhay Shreeniwas Oka and A.S. Chandurkar, JJ.
Ambaji Narsing Mali - Appellants
Vs.
The State of Maharashtra - Respondent
Writ Petition No. 5619 of 2006
Decided On: 23.09.2014
For Appellant/Petitioner/Plaintiff:Bhushan A. Walimbe, Advocate
For Respondents/Defendant:V.S. Gokhale, AGP, A.V. Anturkar, Senior Advocate and Tejpal S. Ingale, Advocate
Headnote:Urban Land (Ceiling and Regulation) Act, 1976 - Section 10(5) Constitution of India, Article 226 Civil Procedure Code, 1908, Section 11 Allotment of land. Where earlier writ petition challenging notice under Section 10(5) of Act and order of allotment was withdrawn without reserving any liberty to challenge same in fresh writ petition therefore writ petition challenging said notice and order not maintainable. In the present writ petition, a prayer is also made to set aside allotment of aforesaid lands made in favour of the respondent No. 6 on 19.9.1983. In this regard, it is to be noted that when the Writ Petition No. 4066 of 1984 had been filed by the petitioners on 27.2.1984. said order of allotment was holding the field. The same could have been challenged in Writ Petition No. 4066 of 1984. However, there was no challenge made to aforesaid allotment of land in favour of the respondent No. 6 - Trust in said writ petition. Thus, a prayer which could have been made and which ought to have been made in Writ Petition No. 4066 of 1984 was not made and hence, on principles analogous to constructive res judicata, a challenge to the allotment of land in favour of the respondent No. 6 Trust dated 19.9.1983 cannot now be now permitted to be raised.
There is considerable delay on the part of the petitioners in seeking to challenge the order of allotment dated 19.9.1983 in the present writ petition that was filed on 17.8.2006. Thus, aforesaid challenge after lapse of almost 23 years is highly belated and suffers from gross laches. Moreover, it is not in dispute that possession of the lands in question have been already handed over to the respondent No. 6 - Trust on 31.2.1983. It would be highly inequitable at this point of time to set the clock back after lapse of considerable period of time. The exercise of writ jurisdiction is discretionary in nature and the same cannot be exercised in a case where there is considerable delay on the part of the petitioners in seeking legal redress. The delay as caused by itself is sufficient to disentitle the petitioners from having their challenge to the order of allotment dated 19.9.1983 being considered on merits.
There is considerable merit in the preliminary objection raised on behalf of the respondent No. 6 - Trust by its counsel. The aforesaid preliminary objection and decline to entertain the present writ petition with regard to the challenge to the order of allotment dated 19.9.1983 as said challenge is barred by principles analogous to constructive res judicata besides being grossly belated. Similarly, the challenge to notice dated 25.11.1983 was earlier made in Writ petition No. 4066 of 1984 and as the said writ petition was withdrawn without reserving any liberty to challenge said order in a fresh writ petition, the same cannot now be permitted to be challenged in these subsequent proceedings.
A.S. Chandurkar, J.
1. By this writ petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 12-7-2006 passed by respondent No. 1 under Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act). By aforesaid order the allotment of surplus land in favour of respondent No. 6 has been maintained and the request made by the petitioners for undertaking a housing scheme under Section said Act has been refused. By amending the petition on 7-2-2014, the petitioners have also challenged notice dated 25-11-1983 issued under Section 10(5) of the said Act in respect of the land in question and have further sought a declaration that all proceedings initiated under the said Act stand abated.
2. It would be necessary to refer to certain facts that have bearing on the adjudication of this writ petition. Survey No. 241/3 Part admeasuring 3461.50 square meters and Survey No. 241/4 Part admeasuring 9700 square meters form subject matter of this writ petition. The petitioners were the owners of aforesaid lands. On 30-11-1982, a notification under Section 10(1) of the said Act came to be issued declaring aforesaid land to be excess vacant land. On 19-9-1983, on the request made by respondent No. 6 Trust for allotment of excess land, the respondent No. 1 directed that necessary action in that regard would be taken after completion of formalities. On 6-10-1983, Gazette Notification was duly published under Section 10(3) of the said Act, by which aforesaid lands stood vested with the State Government with effect from 25-8-1983. On 25-11-1983 in terms of notice issued under Section 10(5) of the said Act, the petitioners land owners were directed to hand over possession of said land to the Competent Authority on 3-12-1983. In aforesaid communication, the petitioners were informed that excess land was being allotted to respondent No. 6 Trust. Thereafter on 3-12-1983, possession of aforesaid land was taken in presence of Panchas. It was noted in the Kabjepatti that the land owners were not present at that time and there was no objection or complaint from any party while taking possession.
3. The petitioners land owners challenged notice dated 25-11 -1983 by which they had been directed to hand over possession as well as notice issued under Section 10(5) of the said Act by filing Writ Petition No. 4066/1984. On 10-10-1984, this Court issued Rule in the said writ petition and observed that as the possession was already delivered, the parties should maintain status quo as on 10-10-1984. On 23-9-1988, the aforesaid writ petition was permitted to be withdrawn on the request made by the petitioners. This Court on 23-9 -1988 passed the following order in Writ Petition No. 4066 of 1984.
"On motion, this Petition is allowed to be withdrawn. Liberty to file fresh petition if any order under the Urban Ceiling Act is hereafter passed against the Petitioners.
No order as to costs."
4. On 27-12-1988, the State Government in terms of exercise of powers under Section 20(1) of the said Act exempted aforesaid vacant lands from the provisions of Chapter III of the said Act and permitted the petitioners to undertake a scheme for construction of tenements. On 27-12-1988 itself another order was passed by the State Government directing the Competent Authority, Sangli to cancel notifications issued under Sections 10(1), 10(3) and 10(5) of the said Act. The Competent Authority was further directed to restore possession of said surplus vacant land to the petitioners. In terms of aforesaid directions, the Competent Authority issued a notice to respondent No. 6 Trust on 6-2-1989 that in terms of communication dated 27-12-1988, the possession of aforesaid lands would be taken back from respondent No. 6 Trust and would be handed over to the petitioners on 21-2-1989. However, on 17-2-1989 a communication was issued by respondent No. 1 informing the petitioners that in view of the o
