[PER:- SUNIL B. SHUKRE, J]

1. 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 Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 [for 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., 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 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 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 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 7th 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 7 th 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 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 3 rd 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 20th 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 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]. 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 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 lands by following due process of law.

14. Rule is made absolute in the above terms.

15. The Writ Petitions are accordingly disposed of.