Babu Bhau Chipre, Since Deceased ... vs The Director Of Resettlement, ...
2001 Latest Caselaw 251 Bom

JUDGMENT

R.M. Lodha, J.

1. By means of this writ petition, the petitioner is challenging the constitutional validity of the Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation) Act. 1985 and to the notifications issued under section 11(1), 14(1) and 15(1) dated 2.11.1978. 24.12.81 and 29.5.82 respectively under the Maharashtra Resettlement of Project Displaced Persons Act, 1976 and the notification issued under sections 4 and 6 of the Land Acquisition Act, 1894 (Exhibit "D" and Exhibit 'F' respectively).

2. Mr. Pandit, learned counsel for the petitioner did not press the challenge to the Constitutional validity of the Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation) Act. 1985. His only contention is that the acquisition of the land admeasuring 81 ares out of Gal No. 575 is notified on the basis that Babu Bhau Chipre held the land admeasuring 4 hectares and 54 ares; the said Babu Bhau Chipre had executed a registered Will during his lifetime on 21st May, 1979 whereby he bequeathed an area of 3 hectares 9 ares in favour of his son-the present petitioner viz. Bhoopal Babu Chipre and 1 hectare 45 ares in favour of his wife Laxmlbai and on the date of issuance of notification under section 4 of Land Acquisition Act, 1894, the petitioner's holding being 3 hectares 9 ares was less than 8 acres and therefore, the area of 81 ares could not have been acquired for resettlement of project affected displaced persons. In other words, the contention of Mr. Pandit, learned counsel for the petitioner, is that by issuance of notification dated 2.1 1.78 under section 11(1) of the Maharashtra Resettlement of Project Displaced Persons Act. 1976 (for short "Act of 1976"), the testamentary disposition of the Agricultural land Gat No. 575 by the testator Babu Bhau Chipre subsequently by way of Will was not affected since such testamentary disposition is not covered by the restrictions imposed under section 12 of the Act of 1976.

3. Section 2(10) of the Act of 1976 defines 'holding' thus -"(10) "holding" means the total land held by a person as an occupant or tenant, or as both."

4. Section 10 of the Act of 1976 provides for resettlement of displaced persons and section 11 of the said Act provides for application of the Act to the projects specified in the notification. Section 11 reads thus -

"11. (1) If the State Government is of opinion that it is necessary or expedient in the public interest so to do. Tor the resettlement of displaced persons, it may, by notification in the Official Gazette, declare that the provisions of this Act shall apply in relation to the Project specified in the notification; and thereupon, the provisions of this Act shall apply to such Project. The notification shall also specify the villages or areas which are likely to be in the affected or benefited zone.

(2) The declaration shall also be published in the villages or areas which arc likely to be the affected and benefited zones by beat of drum or otherwise, and by affixing a copy of the notification in some prominent place or places in the zones, and in the village chavdi. and in the office of the panchayat, if any, and also in the office of the Resettlement Officer.

5. Section 12 of the Act of 1976 provides for restrictions on transfer, sub-division or partition of land in benefited zone and it reads thus -

"12. (1) Notwithstanding anything contained in any'law for the time being in force, no land in the villages or areas specified in the notification under section 11 shall, after publication of that notification in the OflTcial Gazette, and until the Deputy Director makes a declaration to the effect that all proceedings for the acquisition of lands in the benefited Zone are completed, be -

(a) transferred, whether by way of sale {including sale in execution of a decree of a Civil Court or of an award or order of any other Competent Authority) or by way of gift, exchange, lease or otherwise,

(b) sub-divided (including sub-division by a decree or order of any Court or any other Competent Authority), or

(c) partitioned (including partition by a decree or order of any Court or any other Competent Authority),

except with the permission in writing of the State Government.

(2) The State Government may refuse to give such permission if in its opinion the transfer, sub-division or partition of land is likely to defeat the object of this Act, or may give such general or special permission, subject to such conditions, If any, as it may deem fit to impose to cariy out the object of this Act or may give such general or special permission, subject to such conditions (if any) as it may deem fit to impose to carry out the object of this Act, including a condition that the grant of such permission shall be without prejudice to the area of land liable to be compulsorily acquired under section 16, on the basis of any holding as it existed immediately before the grant of such permission,

(3) Any transfer, sub-division, partition of land made in contravention of sub-section (1) or of any condition imposed under sub-section (2) shall be void and inoperative.

(4) The State Government may, by general or special order, delegate its powers under sub-section (1) and (2) to all or any of the Collectors or Districts who are ex officio Deputy Directors (Land), subject to such conditions and limitations, if any, as may be specified in the order."

6. Since we are only concerned with the question whether disposition of holding by way of Will is covered by the restrictions imposed under Section 12 of the Act of 1976. we do not deem fit to refer to the other provisions of the Act. Section 12 starts with non-obstante clause and provides that after publication of the notification In the Official Gazette under section 11 and till all proceedings for the acquisition of land In the benefited zone are declared to be completed by the concerned authority, no land in the villages or areas specified in the notification under section 11 shall be transferred or sub-divided or partitioned save and except with the permission in writing of State Government. Section 12, thus, puts restrictions on all sorts of transfer, sub-division and partition of the land in the villages or the areas specified in notification under section 11 after its Issuance except with the permission in writing of the State Government. Sub-sections (1) and (3) of section 12 when read together leaves no manner

of doubt that restrictions on transfer, sub-division and partition, after the issuance of notification under section 11 is in widest term. It is true that a testamentary disposition by way of Will is not a transfer nevertheless if giving effect to such testamentary disposition results in sub-division of the holding, such testamentary disposition is also prohibited and barred under section 12. The legislature in its wisdom has sought to put a complete ban on every type of transfer, sub-division and partition of the holding after publication of notification in the Official Gazette under section 11 in respect of the land in the villages or areas specified in the notification. If the holder of the land executes the Will in favour of more than one person after the publication of the notification in the Official Gazette under section 11 of the Act of 1976 and the testator or testatrix dies thereafter, obviously, by giving effect to such Will, the holding of such testator or testatrix shall stand subdivided which is clearly prohibited by section 12. As has happened in the present case, the notification under section 11(1) of the Act of 1976 was published in the Official Gazette on 2.11.78 whereby it was declared that the provisions of this Act shall apply lo Warna Project in Kolhapur district from the date of issue of this notification. The affected and benefited zone were mentioned therein. Thereafter notifications under sections 14 and 16 of the Act were issued. The said Babu Bhau executed a wild during his lifetime on 21st May, 1979 bequeathing his holding to his son viz. the present petitioner Bhoopal Babu Chipre and widow. Babu Bhau Chlpre died on 6.12.79. After the death of Babu Bhau Chipre. effect was given to Will and holding was sub-divided in the revenue records on 1st January, 1980 by diary No. 474 whereby the petitioner was recorded holding an area of 3 hectares 9 ares while his mother was recorded holding an area of 1 hectare 45 ares. It is clear that by virtue of the Will after the death of deceased Babu Bhau, his original holding in Gat No. 575 admeasuring 4 hectares 54 ares stood sub-divided which is clearly barred and prohibited under section 12 of the Act of 1976. Such sub-division after the issuance of notification under section 11(1) of the Act of 1976 being void and invalid under section 12(3) has rightly been treated invalid by the acquiring authority. The holding on the date of publication of notification in Official Gazette under section 11 of the Act of 1976 of Babu Bhau exceeded 8 ares. We do not find any merit in the contention of the learned counsel for the petitioner that at the time notification under section 4(1) of the Land Acquisition Act was issued, the petitioner was holding the land less than 8 acres. The submission is made in ignorance of the provisions of the Act of 1976. The crucial and relevant date for the purposes of the acquisition to provide for resettlement of certain displaced persons is the date when notification in the Official Gazette was published under section 11 of the Act of 1976 and not the date of notification under section 4 of Land Acquisition Act. The land held by Babu Bhau Chipre on the dale of issuance of notification under section 11(1) of the Act of 1976 was more than 8 acres and any sub-division thereafter was rightly excluded being invalid.

7. No other point was argued. Writ Petition, accordingly has no merit and is dismissed with no order as to costs.