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PETITIONER: SMT.DAROTHI CLARE PARREIRA & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       25/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   113        1996 SCALE  (5)539

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  Division Bench  of the  Bombay High  Court  made  on September 24, 1982 in W.P. No.877/79.      The undisputed  facts are  that the  appellant were the erstwhile owners  of G.T.S.  Nos.13/1, 13/2 and 13/3 in Pune on land  of an  extent of  20,948.40 sq.  meters. After  the Urban Land  (Ceiling &  Regulation) Act,  1976 (33  of 1976) [for short,  the "Act"]  had come into force, the appellants filed their return under Section 6 of the Act. The competent authority had  issued notice  on  September  20,  1977.  The appellants had  filed their  objections on December 7, 1977. They also  filed application under Section 20 for exemption. By proceedings  dated December  22, 1977,  the objections on final statement  were over-ruled  and  the  appellants  were found to  be  in  possession  of  surplus  land  admeasuring 13,410.88 sq.  meters. Then the objection on final statement came to  be called  and the  same was under Section 10(2) of the Act  considered and rejected. Notification under Section 10(3) of  the Act  was published  vesting the excess land in the Government w.e.f. March 12, 1979 and the same came to be published  in  the  State  Gazette  on  February  16,  1978. Thereafter the appellants have filed an appeal which came to be dismissed  on the  ground of laches. The appellants filed the  writ   petition  challenging   the  validity   of   the notification under Section 10(3) which was upheld.      From the  record, it  would appear that the application filed under  Section 20  was disposed of on January 22, 1979 and thereafter  the publication  under Section 10(3) came to be made.  It also  now turns out that on March 29, 1979, the appellants  made   an  application   under  Section  21  and simultaneously, they  filed writ  petition in the High Court challenging the notification issued under Section 10(3). The Division Bench  held that  the  procedure  followed  by  the competent authority  was not  vitiated by  any error of law. Since the land had already been vested in the State on March

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12,  1979  pursuant  to  the  notification  published  under Section 10(3),  the question  of further  opportunity to the appellants did  not arise. When the matter was heard by this Court on  November 21,  1995,  Shri  Bhimrao  Naik,  learned senior counsel, had drawn our attention to the fact that his application made  under Section 21 as pending consideration. The appellants  had not  mentioned the  fact of their filing application under  Section 20  and rejection  thereof before the publication  of the  notification under  Section  10(3). Since it  was contended that the application was pending, we directed the  counsel for  the State  to find  out as to the stage  of  the  matter.  In  furtherance  thereof.  we  were informed that  the application was pending. An affidavit was filed by  Mr. P.A.  Mane, Additional Collector in this Court that the  application was  pending consideration  and sought permission of  its   disposal. Accordingly,  by order  dated February 22,  1996, time  was granted  to the  Government to consider   and dispose  of the  application within six weeks from the  date of  the receipt  of the  said order. An order dated 8.7.1996 disposing of the application under Section 21 has been placed before us.      Shri Naik,  learned senior  counsel for the appellants, has contended that until the application under Section 21 of the Act  was  considered  and  disposed  of,  the  competent authority had  no  power  to  have  the  notification  under Section 10(3)  published. What  all the  competent authority could do  under the Act was to finalise the determination of the excess land and then await the decision of the authority under Section  21 and  thereafter notification under Section 10(3) could  be published.  In support  thereof,  he  placed reliance on  the instruction  issued by  the  Government  of India dated  September 15,  1976 under Section 36 or the Act as well  as  the  direction  issued  by  the  Government  of Maharashtra dated  May 22,  1989 following  the decision  of another Division  Bench of  the Bombay  High Court as to the manner of  the disposal of application under Sections 20 and 21 and  the action  to be  taken thereon  by  the  competent authority.  In   that  light,   the   publication   of   the notification  under  Section  10(3)  was  illegal.  He  also contended that the manner of the disposal of the application under Section  21 is  not correct  in  law.  He  points  out paragraphs 17  and 18  of  the  order  dated  July  3,  1996 disposing of  the application  under Section  21  contending that since  the Government  have already  taken the decision for allotment of the land to Pune Housing & Area Development Board and  received the  money from it, the rejection of the application of the application on that ground is illegal. He contends that  the  appellants  have  valuable  right  under Section 91  to formulate the scheme which was required to be considered. The scheme was already drawn and approved by the MHRDA and  the validity  of the  scheme was not scrutinized. Therefore, the  rejection was  not valid in law. Shri Bobde, learned senior  counsel for  some of them, further contended that by  operation of  Section 3  of the  Act, operation  of Sections 10  [3] and 21 should he read together. If so read, the consequence  would be  that until  the application under Section 21  is disposed  of, the  notification under Section 10(3) should  not be  published. He  further points out that since  the   issue  had  already  been  pre-judged,  namely, allotment of the land to the Pune Housing & Area Development Board, this  is not  a valid  consideration. Therefore,  the direction may  be given  either  to  the  State  or  to  the competent  authority   to  reconsider   the  matter.  It  is contended by  Mr. R.P.Bhatt.  learned senior counsel for the Board  and  Dr.  R.B.  Masodkar,  learned  counsel  for  the

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respondents, that  in the  writ  petition  before  the  High Court, no  objection have been taken as regards the omission on the  part of the competent authority to take action under Section 21. Only the legality of the procedure adopted under the Act for determination of the surplus land was canvassed. The High  Court answered  the questions against them and the correctness thereof  is not canvassed before this Court. The action taken  by the  competent authority  is in  accordance with law.  It is  further pointed  out that the rejection of the application  under Section  21  was  valid  because  the Government had  taken decision  to allot  the  land  to  the Housing & Area Development Board equally for public purpose. Therefore, the rejection cannot be considered to be invalid.      Having  considered   the  respective  contentions,  the question  that   arises  for   consideration   is:   whether publication of  the notification  under Section 10(3) of the Act in the Gazette is in accordance with law? No doubt, this question was not squarely put in issue before the High Court in the  manner in  which Shri Naik and Shri Bobde have posed before us.  Having considered the scheme of the Act, we find that there is no force in their contentions. It is true that Section 3  postulates that  except as  otherwise provided in the Act,  on and from the commencement of the Act, no person shall be  entitled to  hold any vacant land in excess of the ceiling limit  in the  territories to  which the Act applies under sub-section  (2)  of  Section  1.  Sections  6  to  10 prescribe the  procedure for  determination  of  the  excess urban  land.   Admittedly   after   filing   of   statement, opportunity had  been given,  they had been heard and excess land over the ceiling limit had been determined. Pursuant to the  decision   taken  under   Section  10(1)  of  the  Act, objections  came   to  be  filed  under  Section  10(2)  and objections also were considered and an opportunity was given before  their   consideration  and  objections  came  to  be rejected.  The  question  then  is:  whether  the  competent authority had  to await the decision under Section 20 and 21 before declaring and publishing the excess and under Section 10(3) by  a notification  in the  Gazette. The scheme of the Act does  indicate that until the date of the publication in the Gazette  prescribing a  date on an from which the excess land stands  vested in  the State, the owner continues to be the owner  of the  excess land  and entitled  to  remain  in possession thereof. On publication of the notification under Section 10(3)  and after  putting a date from which the land stands vested  in the  State and  after publication  of  the notification in  the  Gazette  and  on  the  from  the  date mentioned therein,  the excess  vacant land stands vested in the  State  free  from  all  encumbrances,  subject  to  the decision in appeal, if any, filed according to law.      The previous  owner stands divested or right, title and interest  in   the  land   subject  to  the  right  to  make application  provided  under  Sections  20  and  21.  It  is difficult to  accept the  contention of  the learned counsel for the appellants that the competent authority has no power to have  the notification  under Section  10(3) published in the Gazette until the application either under Section 20 or 21 is  disposed of.  The very language of Sections 20 and 21 and the  exercise of  the power  thereunder would arise only when the  land stands vested in the Government. The power of examination  and   exemption  would   arise  only  when  the Government becomes  the owner  and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme  for weaker  sections  under  Section  21  as envisaged thereunder. Thereat, the Government is required to consider whether  the proposals  made by the erstwhile owner

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for undertaking  the scheme as envisaged under Section 21 or hardships as  envisaged under Section 20 for exemption would merit  consideration.   In  this   case,   admittedly,   the application under  Section 20  came to  be filed though that was suppressed before the High Court and this Court and came to be  dismissed before  notification under Section 10(3) of the Act  was published.  It also appears, as stated earlier, that application  under Section  21 was  filed on  March 29, 1979, the  date on  which the  appellants had filed the writ petition in  the High  Court. It  would, therefore,  be seen that the application came to be filed much after the date of the  vesting  and  publication  of  the  notification  under Section 10(3)  of the  Act. The effect of the vesting is not contingent upon  filing an  application for  disposal  under either Section  20 or  21. We do not go into the correctness of the  order passed  by the Government under Section 21 for the reason  that it  would be open to the Government and the Government have stated in their order that they have already decided to  allot the  land for  another equally efficacious public purpose.  Therefore, we  cannot sit over the decision taken by the Government holding it illegal.      Considered from  this perspective, there is no merit in the appeal. It is accordingly dismissed. No costs.