2023:BHC-OS:12431-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 26568 OF 2023

WITH
WRIT PETITION (L) NO. 26573 OF 2023

Satguru Corporate Services Pvt. Ltd.

A company limited by shares, registered
under the Companies Act, 2013, having
its registered office at 5th Floor, Sunteck
Centre, 37-40 Subhash Road, Vile Parle,
(East), Mumbai – 400 057. .Petitioner

Vs.
1. The State of Maharashtra,
Through the Urban Development
Department, having its office at:
New Administrative Building,
246, Madame Cama Rd, Nariman
Point, Mumbai – 400 021.

2. The Principal Secretary, Urban

Development Department,
State of Maharashtra,
Having his office at: New
Administrative Building, 246,
Madame Cama Rd, Nariman
Point, Mumbai – 400 021.

3. The Additional Collector and

Competent Authority, Greater Mumbai
Having his office at: New
Administrative Building, 246,
Madame Cama Rd, Nariman
Point, Mumbai – 400 021.

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 4. Mumbai Metropolitan Region
Development Authority
Having its Headquarters at:
M.M.R.D.A. Office building,
Bandra Kurla Complex, C-14 &
15, E Block Bandra (East),
Mumbai – 400 051. .Respondents

------------------------------
Dr. Sujay Kantawala, Viraj Parikh, Samit Shukla, Saloni Shah & Sayali
Diwadkar, i/b. DSK Legal, for the Petitioner in both the Petitions.
Ms. Jyoti Chavan, Addl. GP., for Respondent Nos. 1 to 3.
Mr. Akshay Shinde, for Respondent No.04-MMRDA.
------------------------------

CORAM : SUNIL. B. SHUKRE AND

FIRDOSH P. POONIWALLA, JJ.

DATE : 18th OCTOBER, 2023.

ORAL JUDGMENT: [PER:- SUNIL B. SHUKRE, J]

. Rule. Rule is made returnable forthwith with the consent of

the parties and the Petitions are taken up for final disposal.

2. This is a case wherein the Petitioner claims to be the owner of

a larger piece of land having area as mentioned in these Petitions, out of

which the lands having area of 859.6 square meters and area of 1233

square meters respectively, were declared to be surplus lands under

Digitally
signed by
GANESH
GANESH
SUBHASH
SUBHASH
LOKHANDE
Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 [for
LOKHANDE Date:
2023.10.21
13:24:42
+0530

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 short “ULC”] and submits that these surplus lands not having been taken

into possession on or before 29th November, 2007, the date from which

the Urban Land (Ceiling & Regulation) Repeal Act, 1999 [for short

“Repeal Act”] came into force, by the State Government, reverted back to

the original land owners by virtue of Section 4 of the Repeal Act, thereby

entitling the Petitioner, who subsequently purchased them, to their release

in its favour.

3. The State Government has, however raised some dispute

regarding lapsing of the ULC proceedings and reverting of the surplus

lands back to the original owners, from whom the Petitioner has

subsequently purchased them, contending that there has been unilateral

possession taken over of these lands by the State Government on

21st November, 2006, which fact, according to the learned AGP is

sufficient to say that the vesting of the subject surplus lands in the State

Government is complete and irreversible.

4. The State Government in support of its aforestated stand,

relies upon some observations of coordinate bench of this Court in the

case of Bombay Wire Ropes Ltd & Anr vs. State of Maharashtra & Ors.,

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 reported in 2019 SCC Online Bom 264 wherein, in the facts and

circumstances of that case, the Division Bench came to a conclusion that

there was available on record sufficient evidence showing delivery of

possession to Respondent No.4 therein. However, such are not the facts

here as it is an admitted fact that whatever possession of the surplus lands

that was taken by the State Government officials, was unilateral and,

therefore, to the fact situation of this case, the law laid down by the Apex

Court in the case of State of Uttar Pradesh vs. Hari Ram (2013) 4

Supreme Court Cases 280 would apply. In this case, in paragraph 42, the

Apex Court has held as under:

“42. The mere vesting of the land under sub-section (3) of Section 10
would not confer any right on the State Government to have de
facto possession of the vacant land unless there has been a
voluntary surrender of vacant land before 18-3-1999. The State
has to establish that there has been a voluntary surrender of
vacant land or surrender and delivery of peaceful possession
under sub-section (5) of Section 10 or forceful dispossession
under sub-section (6) of Section 10. On failure to establish any
of those situations, the landowner or holder can claim the benefit
of Section 4 of the Repeal Act. The State Government in this
appeal could not establish any of those situations and hence the
High Court is right in holding that the respondent is entitled to
get the benefit of Section 4 of the Repeal Act.”

5. It would be clear from the above referred observations that

mere vesting of the land under Section 10(3) of the ULC Act would not

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 confer any right on the government to have de facto possession of the

vacant land unless there has been a voluntary surrender of vacant land

before 18-03-1999. The State has to establish that there has been a

voluntary surrender of vacant land or surrender and delivery of peaceful

possession under Sub-Section (5) of Section 10 or forcible dispossession

under sub-section (6) of Section 10 of the ULC Act.

6. In the instant case, admittedly, the possession that was taken

by the State Government was unilateral and it was neither a possession

which was taken in terms of Section 10(5) nor a possession taken in terms

of Section 10(6) of the ULC Act and hence, it was not a possession taken

at all. The moment it is established that the possession of the surplus

lands has not been taken over in accordance with law on or before

29th November, 2007, the date on which the Repeal Act came into

force in the State of Maharashtra, there would be abatement of the

proceedings in terms of Section 4 of the Repeal Act and that would mean

that the surplus lands would get restored to the original owner. This

is what has happened in the present case. So, one can safely say

that the Petitioner who has purchased the surplus lands from the

erstwhile owners, in one case Laxminarain Bhagwan Bux and in

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 another case i.e. M/s. Venkatesh Processors, in the year 2012 by registered

Conveyance Deeds, has become entitled to hold the surplus lands as

owner thereof by virtue of abatement of the proceedings in terms of

Section 4 of the ULC Act.

7. The State Government has also relied upon the case of

Francis Joseph Ferreira & Ors. vs. The Additional Collector & Anr., Writ

Petition No. 166 of 2009, wherein it has been held that whenever there

are disputed questions of facts relating to taking over of possession of the

land, the dispute be referred to the Civil Court. In the present case, no

such disputed questions of facts are involved, as the State Government has

admitted that the possession of the surplus lands taken over by the State

was one sided and ex-parte, which is not recognized in law.

8. Learned AGP, submits that the Petitioner has suppressed some

material facts in the present case which is evident from the manner in

which the representations have been made by the Petitioner in these

cases. She points out from the said representations that they were made

on 7th May, 2014 by the Petitioner in the capacity as Constituted Attorney

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 to M/s. Venkatesh Processors and to Laxminarain Bux without even

disclosing that these erstwhile owners of the surplus lands, were no longer

owners thereof and the Petitioner had become owner of the surplus lands.

She submits that such a Petition, therefore, must not be entertained by

this Court.

9. We are in respectful disagreement with the learned AGP.

While it is true that the representation dated 7 th May, 2014 has been made

by the Petitioner who has filed these Petitions, as Constituted Attorney to

M/s. Venkatesh Processors in one case and as Constituted Attorney to

Laxminarain Bux in another, thereby indicating that the owners of the

surplus lands were M/s. Venkatesh Processors and Laxminarain Bux but

the fact remains, about which there is no dispute, that in May 2014, the

Petitioner was the owner of the surplus lands, they having been purchased

by the Petitioner under the registered Conveyance Deeds dated

14th January 2012. It appears to us that recitals of representation dated

7th May, 2014 were drafted in a casual manner or otherwise there was no

reason for the Petitioner to have stated that the Petitioner was a

Constituted Attorney to M/s. Venkatesh Processors and Laxminarain Bux

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 in relation to the surplus lands in spite of the fact that the Petitioner was

the owner of the subject surplus lands. Then, if we take a look at the

impugned order dated 9th May 2023, we would find that this is not the

reason for which the representations of the Petitioner were rejected. The

reason of rejection was different. It was stated in the impugned order that

the subject surplus lands were situated in the notified area of Oshiwara

District Development Center for which MMRDA was the Special Planning

Authority and that being so, the provisions of Government decision dated

3rd December, 2008 would not be applicable to the cases of the Petitioner

and, therefore, the request of the Petitioner for cancellation of the

notification issued under Section 10(3) respectively dated 20 th December,

2004 and 3rd November, 2006 was rejected. A further request by the

Petitioner for deleting the name of the Government of Maharashtra on the

property card of the said land was also rejected. Learned AGP, at this

stage, would say that the State Government was not aware of the factual

position obtaining on that day in respect of the names of the real owners

of the surplus lands and therefore, the State Government could not raise

any such objection on that count. This may or may not be true, but again

we can see, it would not change the fact situation which was obtaining at

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 that point of time, which situation clearly indicated that the Petitioner

was the owner of the surplus lands and not M/s. Venkatesh Processors or

Laxminarain Bux. Ordinarily, no owner of the land would say that he is

not the owner of the land, but somebody else is the owner, unless there is

some material which reasonably points towards some kind of ulterior

motive on the part of the owner. That material is not present here. We are,

therefore, of the view that the averments made in the recitals of the said

representations of the Petitioner regarding the Petitioner being

Constituted Attorney were only in the nature of a mistake, pure and

simple, on the part of the Petitioner and therefore, no importance need be

attached to such a mistake.

10. The facts discussed above would show that in these Petitions,

no possession of surplus lands was taken as per law on or before

29th November, 2007, and, therefore, there has occurred abatement of

ULC proceedings in terms of Section 4 of the ULC Act leading to

restoration of the surplus lands to their owner, presently, the Petitioner in

both these Petitions [see Voltas Ltd. & Anr. vs. Additional Collector &

Competent Authority & Ors. Reported in 2008 SCC Online Bom 701].

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 That would mean that the State Government would have to release the

surplus lands in favour of the Petitioner free of cost and delete the

mutation entries taken in the property card showing it to be the owner

thereof.

11. At this juncture, learned counsel for the Petitioner submits

that the Petitioner, in deference to the opinion given by the Collector and

Competent Authority, ULC Act, Greater Mumbai, is in both these cases,

willing to pay to the Government the value of the subject surplus lands at

ready reckoner rates as of date, in lieu of the release of the subject surplus

lands to the Petitioner by the State Government. The learned counsel for

the Petitioner in both the Petitions has also tendered a chart giving

necessary calculations and total value of the surplus lands calculated as

per current ready reckoner rates. The chart, is taken on record and

marked as document “A” for identification.

12. In our considered view, inspite of the law supporting the case

of the Petitioner, the readiness shown by the Petitioner for paying the

value of the surplus lands as per current ready reckoner rates needs to be

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 taken cognizance of by the State Government and if the State Government

is not ready to do so, it would have to be done by this Court as doing so

would not only protect the interest of the Petitioner but also the State

Government, thereby bringing to the government additional revenue.

13. Accordingly, we allow these Petitions. The impugned order

dated 9th May, 2023 is hereby quashed and set aside in view of the fact

that the ULC proceedings have stood abated under Section 4 of the ULC

Act. We direct the Respondent Nos. 2 and 3 to release the subject surplus

lands to the Petitioner in both these Petitions on condition of the

Petitioner depositing with Respondent No. 3 the value of the surplus lands

as calculated in terms of Chart “A”. Such deposit of value of subject surplus

lands may be made within ten days from the date of the order and the

order regarding the release of the surplus lands in favour of the Petitioners

in both the Petitions shall be made within a period of two weeks from the

date of deposit of the value of surplus lands as per Chart “A”. The mutation

entry showing the State Government as the owner of the subject surplus

lands in the property card shall be deleted and name of the Petitioners in

both the Petitions shall be mutated as the owner of the subject surplus

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 lands by following due process of law.

14. Rule is made absolute in the above terms.

15. The Writ Petitions are accordingly disposed of.

( FIRDOSH P. POONIWALLA, J.) ( SUNIL. B. SHUKRE, J.)

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