The validity of possession under the Urban Land Ceiling Act and the implications of the Repeal Act were central to the judgment.

S.R. Waghmare, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner is aggrieved by order dated passed by the respondent No. 3 Upper Collector and Competent Authority, Nagar Bhumi Viniyaman (Annexure P/1) noticing the petitioner for handing over possession of the disputed land under the Urban Land Ceiling Act.

2. Briefly stated the petitioner is a citizen of Indore and resides at village Tejpur Gadbadi and is in possession of ancestral property bearing survey No. 310 and half the land of the survey ad-measuring 0.509 hectare. That the said land was agricultural land and application was filed that the land be excluded under Section 20 of the Ceiling Act. The application is Annexure P/2. A case for urban land ceiling bearing No. 384/A-90/C 1/77-78 was pending before the respondent No. 3 competent authority under the Urban Land Ceiling Act, 1976. It was also stated that all the family members were the equal share holders in the ancestral land and the respondent No. 3 had erred in only excluding 0.150 hectare of the said land. However, Respondent No. 3 declared 0.359 hectares as surplus and demanded filing of the draft statement under Section 8(1) of the Urban Land Ceiling Act, 16.02.1982 which is also filed as Annexure P/3. The draft statement was issued without notice. Similarly application under Section 20 of the Act was also pending consideration and hence the notice issued by the respondent No. 3 impugned in this petition was without jurisdiction and contrary to the provisions of law. Thereafter, the respondents also included the land in the notification issued by the State Govt. and under Section 10(1) of the Act and a notice dated 14.02.1984 was issued and possession was taken over by the petitioner on 27.02.1984 by preparing panchnama. And whereas the disputed land was ancestral land in the possession of the petitioner the panchnama is Annexures P/5 & P/6 annexed with the petition. Thereafter in the revenue records the name of the government is entered and the entire action of the respondent No. 3 is, therefore, vitiated and contrary to the provisions of law. Counsel submitted that opportunity of hearing was not granted to the petitioner besides an important fact which cannot be marginalised is that the petitioner is in possession even today and notice was received by the petitioner issued by the respondent No. 3 on 29.01.2010 that the land be excluded from the provisions of Act of Urban Land Ceiling.

3. Counsel for the petitioner has vehemently urged the fact that Urban Land Ceiling Act was repealed on 17.02.2000 and it is wrongly stated by the respondents that the land in question has been declared surplus and possession thereof was taken on 27.02.1984. The notice was also issued to the petitioner according to the respondents vide Annexure P/1, however Counsel urged that it is incorrect since Annexure P/6 was just a mere paper formality and the possession of the petitioner's was actual and legal. Moreover Section 10(5) of the present Act requires that a notice to be given to the owner before taking possession of land and such a notice has not been issued and hence in this light also Annexure P/6; the notice in question is vitiated and contrary to the provisions of law.

4. Counsel placed reliance in the matter of Gaurav Agro Plast Ltd. Vs. State and others in WP No. 603/2000 and the Court had held as under:-

"No possession in fact also seems to have been taken on the spot and the punchnama (R/6) appears to be an empty formality. Curiously enough this document is not signed by any puch witness much less by any person in possession of the land, so as to entitle it to be called as punchnama......"

And the Court further held that:-

"Sequence of things leave no manner of doubt that this punchnama was a mere paper formality designed to frustrate the effect of Repeal Act...."

The judgment in the matter of Gaurav Agro Plast (supra) had attained finality since, the LPA filed by the State Govt. bear