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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
SUNIL B. SHUKRE, MILIND N. JADHAV, JJ.
Tarabai Tulshiram Meshram R/O Wardhaman Nagar — Appellant
Versus
State Of Maharashtra — Respondent
Writ Petition No. 1581 of 2018
Decided on : 13-09-2019
Right to Information Act, 2005 - Section 10 - Urban Land Act, 1976 - Section 9 & 10 – Acquisition of land – Claim of compensation - Pursuant to the above declaration, a Notification under Section 10(3) of the ULC Act was published on 26th May, 1988 in the Maharashtra Government Gazette, Nagpur Division Supplement at page 465 - Notification stated that land admeasuring meters out of meters of khasra totally admeasuring 15927.87 sq. meters belonging to and held by Smt. resident of was land held in excess of "Ceiling limit" and was therefore to be acquired by the Government of Maharashtra under the ULC Act. Thereafter, on 29th January, 1991 the office of the Competent Authority and Deputy Collector, Urban Land Ceiling, Nagpur, i.e. the Respondent No. 2, issued notice addressed to Smt. under the provisions of Section 10(5) of the ULC Act, inter alia, stating that possession of all three parcels of lands (declared as surplus) be handed over to the authorised representative of the Nagpur Housing and Area Development Board, Nagpur, i.e. the Respondent No. 3 on 18th February, 1991 at 11:00 a.m. It is an admitted position that since Smt. Radhikabai Tulshiram Borkar had expired on 27th August, 1990, the above notice could not be served upon her. The Petitioner has produced the copy of the above notice at Annexure 3 to the Petition which was obtained by the Petitioner under the Right to Information Act, 2005 – Held, In view of the aforesaid settled legal position and applying it to the facts and circumstances of the present case in particular, with Section 10(5) notice dated 29th January, 1991, having been issued in the name of Smt. Radhikabai Tulshiram Borkar, the deceased original holder/owner and admittedly not served upon the said land holder/owner or the Petitioner. We are persuaded to hold that once it is established that actual physical possession was not taken, the Respondents are not justified in refusing the claim of the Petitioner on the ground that de jure possession was taken by the State Government and the revenue record was mutated in the name of Respondent No. 3 in respect of the said land. It is trite position in law that mere mutation entries in the revenue record cannot be the ground for denial of relief to the Petitioner, whose case is clearly covered by the aforesaid judgment of this Court in the case of Voltas Limited & Anr. Vs. Additional Collector and Competent Authority and Ors - In the facts and circumstances of the present case in particular, unless the Respondents Nos. 1 & 2 are able to establish that possession of the said land was taken over by them as required by law, they cannot claim to be in possession of the said land. The Respondent Nos. 1 & 2 must show that there was strict compliance of the provisions Section 10 (5) and/or Section 10(6) of the ULC Act and more importantly that taking of possession was on no date earlier than 30 days from the date of service of the notice under Section 10(5). The act of taking possession must be properly witnessed and that possession was taken within the time prescribed by the statute and not otherwise. This has been so held by the learned Single Judge of this Court in the case – Petition allowed
JUDGMENT :
Milind N. Jadhav, J.
Heard. Rule. Rule is made returnable forthwith. By consent of the parties, Petition is taken up for final hearing.
2. By the present Petition, the Petitioner has prayed for a declaration that all proceedings viz. notices/notification issued under the provisions of Section 9 & 10 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the ULC Act") in respect of land bearing khasra No. 125 (old) corresponding to khasra No. 155 (new) admeasuring 1.10 H.R., situated at Mouza Drugdhamna, Tahsil-Nagpur (Gramin), District Nagpur (hereinafter referred to as "the said land") stand abated in view of the enactment of the Urban Land (Ceiling & Regulation) Repeal Act (1999) (hereinafter referred to as "the Repeal Act") and has further prayed for a declaration that the aforesaid land does not vest in the Respondents. The Petitioner has also sought consequential relief in respect of mutation of revenue records pertaining to the said land. The relevant facts pertaining to the Petitioners claim are stated herein under.
3. The said land alongwith two other parcels of land viz. khasra No.119/2 (old) and Khasra No. 115(old) situated at Mouza Durgdhamna, Tahsil Nagpur (Gramin) District Nagpur stood in the ownership of Smt. Radhikabai Tulshiram Borkar, mother of the present Petitioner at the time of enactment of the ULC Act. The said Smt. Radhikabai Tulshiram Borkar filed preliminary statement under Section 6(1) of the ULC Act before the Competent Authority in respect of the aforementioned three parcels of land on the basis of which ULC Case No. 2571/76 came to be registered.
4. Consequent upon the enquiry, Respondent No. 2 passed order under Section 8(4) of the ULC Act on 28th September, 1987, inter alia, declaring that 11000 sq. meters of land from khasra No. 125 (old), 4827.87 sq. meters of land from khasra No. 115 (old) and 1000 sq. meters of land from khasra No. 119/2 (old) belonging to Smt. Radhikabai Tulshiram Borkar to be surplus vacant land.
5. The said Smt. Radhikabai Tulshiram Borkar expired on 27th August, 1990 leaving behind the present Petitioner as her sole legal heir. There is no dispute or controversy about the claim of the Petitioner as the sole legal heir of Smt. Radhikabai Tulshiram Borkar.
6. Pursuant to the above declaration, a Notification under Section 10(3) of the ULC Act was published on 26th May, 1988 in the Maharashtra Government Gazette, Nagpur Division Supplement at page 465. The Notification stated that land admeasuring 4827.87 sq. meters out of khasra No. 115, 1000 sq. meters of khasra No. 119/2 and 11000 sq. meters out of khasra No. 125 totally admeasuring 15927.87 sq. meters belonging to and held by Smt. Radhikabai Tulshiram Borkar, resident of Drugdhamna was land held in excess of "Ceiling limit" and was therefore to be acquired by the Government of Maharashtra under the ULC Act. Thereafter, on 29th January, 1991 the office of the Competent Authority and Deputy Collector, Urban Land Ceiling, Nagpur, i.e. the Respondent No. 2, issued notice addressed to Smt. Radhikabai Tulshiram Borkar under the provisions of Section 10(5) of the ULC Act, inter alia, stating that possession of all three parcels of lands (declared as surplus) be handed over to the authorised representative of the Nagpur Housing and Area Development Board, Nagpur, i.e. the Respondent No. 3 on 18th February, 1991 at 11:00 a.m. It is an admitted position that since Smt. Radhikabai Tulshiram Borkar had expired on 27th August, 1990, the above notice could not be served upon her. The Petitioner has produced the copy of the above notice at Annexure 3' to the Petition which was obtained by the Petitioner under the Right to Information Act, 2005. There is an endorsement on the office copy of the notice duly initiated and signed by the concerned officer which states that the noticee has expired and a copy of the said notice has been handed over to the grandson of the noticee and his signature has been obtain
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