State instrumentality cannot impose policy requiring probate of will when not mandated by Sections 57/213 of Indian Succession Act for wills/property outside specified High Court jurisdictions, rendering condition ultra vires and arbitrary.

ORDER :

MANISH PITALE, J.

1. Heard learned Counsel for the Petitioner and learned Counsel for the Respondents.

2. By this Petition the Petitioner is seeking quashing of impugned communication dated 11/07/2019 issued by the Respondent No. 2 i.e. Chief Land and Survey Officer of the City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) whereby the Petitioner has been called upon to submit probate of will executed by the father of the Petitioner, on the basis of which the Petitioner claims right to developed plots as per the scheme of CIDCO. The said scheme stipulates that developed plots to the extent of 12.5% of the acquired land would be made available to the original landowners, in addition to the compensation amount paid to them. It is the case of the Petitioner that as per the subject will dated 23/06/1997 the Petitioner is entitled to the benefit under the said scheme, which otherwise was a benefit accruing to his deceased father. 3. The Petitioner is also challenging the policy of Respondent No. 2- CIDCO, particularly condition L(ii) thereof, which stipulates the requirement of producing the probate of will in order to take benefit of scheme of the Respondent No. 2-CIDCO.

4. Reply affidavits have been filed on behalf of Respondent No. 2- CIDCO as well as private parties. The private parties to this Writ Petition are sisters, brothers and other family members of the Petitioner. They have been added as parties, since they had filed a Suit in a Civil Court for partition and separate possession of properties, wherein the Petitioner had set up the said will. It is an admitted position that the said Suit was dismissed for non-prosecution. It is submitted on behalf of the Petitioner that by way the abundant caution the relatives have been added as Respondents in this Petition.

5. Mr. Gorwadkar, learned Senior Counsel appearing for the Petitioner submitted that the short question that arises for consideration in this Petition is, as to whether a body like CIDCO, which is a Corporation and an agency and instrumentality of the State Government of Maharashtra can adopt a policy in the teeth of the provisions of law, particularly when the position of law is expounded and clarified by judgments of this Court. It is submitted that a bare reading of Sections 57 and 213 of the Indian Succession Act, 1925, shows that the requirement of probate in the facts and circumstances of the present case cannot be insisted upon. This is because the subject will, upon which the Petitioner relies, was executed in Panvel, outside the original jurisdiction of this High Court and the property in question in lieu of which the developed plots are to be allotted was also located beyond the original jurisdiction of this High Court. It was submitted that therefore, there is no requirement for the Petitioner to obtain probate of the subject will, even according to the position of law as it stood when the said will was executed and the instant Petition was filed. In this connection, reliance is specifically placed on judgment of learned Single Judge of this Court in case of Vishnu Ramchandra Undage versus Ganpati Ramchandra Undage an