2019 Supreme(Bom) 274

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, N.J. JAMADAR, JJ.
BOMBAY WIRE ROPES LIMITED - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Writ Petition No. 2125 of 2007
Decided on : 13-02-2019

Headnote:

Urban Land Act, 1976 - Section 8(4) - Principal Act - Section 34 - Indian Companies Act, 1956 - Urban Land Repeal Act, 1999 - Constitution of India, 1950 - Article 226 – Quash of order - Writ jurisdiction of this Court – Claim of compensation - Whether proposals made by erstwhile owner for undertaking the scheme as envisaged under Section 21 or hardships as envisaged under Section 20 for exemption would merit consideration - Whether deemed vesting of surplus land under Section 10(3) of the Urban Land would amount to taking de facto possession depriving the land holders of the benefit of the saving Clause under Section 3 of Urban Land Repeal Act, 1999 - Whether even a failure to give a notice under Section 10(5) of Principal Act leads to the only conclusion that such a dispossession without notice under Section 10(5) is no dispossession in the eye of law and answered same in negative - Petitioner no.1 is a Company incorporated under the Indian Companies Act, 1956 - On date the Principal Act came into force, the Petitioner no.1 was holding lands within the limits of Thane urban agglomeration – Petitioners thus filed a return under Section 6 of the Principal Act - On April an order came to be passed under Section 8(4) of Act declaring an area excess land out of its total holding - On March an order came to be passed under Section 20(1)(a) of the Act for the purpose of providing sites and services, core houses and construction of tenements - An area admeasuring came to be exempted there under - On November another order under Section 20(1)(a) of Act was passed to modify the aforesaid scheme and an area admeasuring came to be exempted for providing plots/construction of tenements - Petitioners were directed to hand over an area admeasuring Government free of cost and accordingly Petitioners surrendered the said area on January - Certain supervening events occurred - Restrictions came to be imposed on development on account of the chemical zone - Development plan for Thane Municipal Corporation was sanctioned by State Government and subsequently Development Control Regulations for Thane Municipal Corporation were sanctioned – Resultantly several parcels of Petitioners land were rendered non-buildable – Thus Petitioners could not implement the scheme sanctioned - In view of aforesaid developments competent authority passed a fresh order under Section 8(4) of Act and declared an area admeasuring sq.mts. as excess vacant land – Held, Court say so because this Court was in considering whether the word may appearing in Section 10(5) gave to competent authority discretion to issue or not to issue a notice before taking physical possession of land in question under Section 10(6) - Question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it no nest in the eye of law did not fall for consideration in that case - In court opinion what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before authorities decided to use force to dispossess the occupant under Section 10(6) - In case at hand if the appellants version regarding dispossession of the erstwhile owner in December is correct fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act - That is because erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so - On a careful consideration of facts and attendant circumstances of the matter at hand court are of the considered view that they are more nearer to facts than those - In view of pronouncement in the case failure to abide by the time limit of days may amount to an irregularity – Consequently pronouncements of this Court in the case to contrary do not hold the field. Furthermore, it must be noted that in the case itself Supreme Court expressly observed in paragraph that the question whether a right has been acquired or liability incurred under a Statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case - Conspectus aforesaid consideration is that in backdrop of facts and the setting of instant matter court are inclined to hold that pronouncement of Supreme Court in the case governs controversy at hand - Court are therefore persuaded to hold that the fact that Petitioners were dispossessed much before days period stipulated in notice to hand over possession does not vitiate the action of taking possession nor does it amount to no dispossession in eye of law and a mere de jure possession – Petition stands dismissed