Smt. Darothi
Clare Parreira & Ors Vs. State of Maharashtra & Ors [1996] INSC 858 (25 July 1996)
Ramaswamy,
K. Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 113 1996 SCALE (5)539
ACT:
HEAD NOTE:
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 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 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 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.
Back
Pages: 1 2
