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REPORTABLE

 IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 2615 OF 2012    [ARISING OUT OF S.L.P. (C) NO.14223 OF 2009]

VINAYAK KASHINATH SHILKAR ...   APPELLANT(s)

                     Versus

DY. COLLECTOR & COMPETENT AUTHORITY AND OTHERS ...   RESPONDENT(s)

J U D G M E N T    R.M. LODHA,J.

Leave granted.

2. The appellant herein  was the writ petitioner  

before the High Court.  In the Writ Petition, he prayed  

that  the proceedings in respect of the land bearing  

survey  No.  195,  Hissa  No.  2  (New  195/1)  of  Village  

Parsik, District Thane under the Urban Land (Ceiling &  

Regulation)  Act,  1976  (for  short  “the  Act”)  on  the  

basis of the return filed by Nabibai Tukaram Patil may  

be declared as abated in view of the repeal of the Act.  

The  appellant  asserted  that  the  possession  of  the  

subject land was with him and at no point of time, his  

possession was ever disturbed or attempted to be taken  

by the respondents.

3. In  response  to  the  Writ  Petition,  a  reply

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affidavit was filed by the  Additional Collector and  

Competent Authority, Thane Urban Agglomeration, Thane  

before  the  High  Court.   In  paragraph  3  of  that  

affidavit, it is stated that notice under Section 10  

(5) of the Act  was issued to the appellant on February  

25, 2005 calling upon the appellant to hand over the  

possession of the subject land within 30 days from the  

receipt of the said notice and, thus, the subject land  

had vested with the State Government.  In paragraph 10  

of the said affidavit, it is stated that the Competent  

Authority  had  already  taken   action  under  Sections  

10(3) and 10(5)  of the Act and, therefore, the subject  

land is deemed to have vested in the State Government.

4. The  Division  Bench  of  the  Bombay  High  Court  

dismissed  the  Writ  Petition  by  observing  that  the  

possession  of  the  subject  property  had  already  been  

taken by the Government of Maharashtra under the Act.

5. Mr. U.U. Lalit, learned senior counsel for the  

appellant  submitted that the finding of the High Court  

that the possession of the property had  been taken  by  

the Government of Maharashtra was factually incorrect.  

He submitted that, as a matter of fact, even in the  

reply affidavit before the High Court filed on behalf  

of respondent No. 1, no such statement about possession

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was made.  The subject land although had vested in the  

Government of Maharashtra on action having been taken  

under  Sections  10(3)  and  10(5)  of  the  Act,  learned  

senior  counsel  submitted  but  actual  possession  

continued with the appellant.

6. Mr.  Uday  B.  Dube,  learned  counsel  for  the  

respondents  submitted  and,  in  our  view  fairly  that  

there was  nothing on record  to indicate that  actual  

possession of the subject land had been taken over by  

the  respondents  from  the  appellant.   He  further  

submitted that the observation of the High Court that  

the possession  of the subject  land had already  been  

taken by the Government of Maharashtra was based on the  

assertion made in the reply affidavit filed on behalf  

of respondent No. 1 that land had vested in the State  

Government on action  having been taken under Sections  

10(3) and 10(5) of the Act and for no other reason.

7. The Act came to be repealed by the Urban Land  

(Ceiling and Regulation) Repeal Act, 1999 (for short “  

the Repeal Act”) on March 22, 1999.  However, the State  

of  Maharashtra  did  not  adopt  the  Repeal  Act  

immediately.   On resolution having been passed by the  

Maharashtra Legislative Assembly as well as Maharashtra  

Legislative  Council  that   w.e.f.  November  29,  2007,

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the  Repeal Act came to be adopted and became operative  

in the State of Maharashtra.

8. Section 2 of the Repeal Act reads as follows:

“2.  The Urban  Land  (Ceiling  and Regulation)  Act,  1976  (hereinafter  referred  to  as  the  principal Act) is hereby repealed.”

9. Section 3A of the Repeal Act reads as follows:

“ 3 : Savings

(1) The repeal of the principal Act shall not  affect-

(a) the vesting of any vacant land under sub- section (3) of section 10, possession of which  has been taken over by the State Government or  any  person  duly  authorised  by  the  State  Government in this behalf or by the competent  authority;

(b) the validity of any order granting exemption  under  sub-section  (1)  of  section  20  or  any  action  taken  thereunder,  notwithstanding  any  judgment of any court to the contrary;

(c) any payment made to the State Government as  a condition for granting exemption under sub- section (1) of section 20.

(2) Where-

(a) any land is deemed to have vested in the  State  Government  under  sub-section  (3)  of  section 10 of the principal Act but possession  of which has not been taken over by the State  Government or any person duly authorised by the  State  Government  in  this  behalf  or  by  the  competent authority; and

(b)  any  amount  has  been  paid  by  the  State  Government with respect to such land,

then, such land shall not be restored unless the  amount paid, if any, has been refunded to the  State Government.”

10. It is clear from the above provisions that where

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the possession of the vacant land has not been taken  

over  by  the  State  Government  by  any  person  duly  

authorised by the State Government in this behalf or by  

the Competent Authority, the proceedings under the Act  

would not survive.  Mere vesting of the vacant land  

with the State Government by operation of law  without  

actual possession is  not sufficient for operation of  

Section 3(1)(a) of the Repeal Act.

11. We are fortified in our view by a recent decision  

of this Court in  Ritesh Tewari and another vs. State  

of Uttar Pradesh and others1.  This Court in Retiesh  

Tewari1   considered the matter thus:

“Shri Jayant Bhushan, learned Senior Counsel  appearing  for  the  appellants  has  submitted  that  as  the  State  Government  had  not  taken  possession  of  th  eland  in  exercise  of  its  powers under Section 10(6) of the 1976 Act, on  coming  of  the  1999  Act  into  force,  the  proceedings stood abated and the respondents  have  no  business  to  interfere  with  the  peaceful  possession  and  enjoyment  of  the  property.

We find full force in the submissions so made  by Shri Jayant Bhushan to a certain extent,  and hold that all proceedings pending before  any court/authority under the 1976 Act, stood  abated  automatically  on  coming  of  1999  Act  into  force,  provided  the  possession  of  the  land  involved  in  a  particular  case  had  not  been taken by the State.  Such a view is in  consonance  with  the  law  laid  down  by  this  Court  in  Pt.  Madan  Swaroop  Shrotiya  Public  

1 (2010) 10 SCC 677

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Charitable Trust vs. State of U.P. (2000)6SCC  325, Ghasitey Lal Sahu vs. Competent Authority  (2004)13 SCC 452, Mukarram Ali Khan vs. State  of  U.P.  (2007)11  SCC  90    and  Sulochana  Chandrakant  Galande  vs.  Pune  Municipal  Transport (2010)8 SCC 467.”

12. In view of the legal position enunciated  by this  

Court in Ritesh Tewari1  and the factual situation that  

the possession of the subject land has not been taken  

by the Government of Maharashtra, we are satisfied that  

the appellant  was entitled to the relief in terms of  

para 9 (b) in the Writ Petition and the High Court  

ought to have declared that the proceedings under the  

Act in relation to the subject property stood abated.  

Now it is declared accordingly.

13. Appeal is allowed as above with no order as to  

costs.

              .....................J.                                  (R.M. LODHA)

              .....................J.                           (H.L. GOKHALE)

  NEW DELHI    FEBRUARY 29, 2012.

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