Vasant Dhondopant Deo vs State Of Maharashtra Through The ...
2003 Latest Caselaw 706 Bom

JUDGMENT

S.T. Kharche, JJ.

1. Heard Mr.Deshpande, learned counsel, for the petitioner and Mr.T.R.Kankale, learned A.G.P., for the respondents.

2.Invoking the jurisdiction of this Court, the petitioner has filed this petition under Articles 226 and 227 of the Constitution of India for the following reliefs :

(1) It is, therefore, prayed that this Honble Court be pleased to issue a Writ of Mandamus and at any rate should further be pleased to quash the impugned orders under Section 4 and the Notice issued to the Petitioner under Section 4, i.e. Annexure A and notification under Section 6 which is filed an Annexure G and further be pleased to hold that the respondent is not entitled to acquire the land of the petitioner under the said Act and for suit purposes.

(2) That further proceedings under Land Acquisition case including taking possession of the said land in Land Acquisition Case No.12/49/84-85 of Anji-Nursing pending before the Land Acquisition Officer, Upper Painganga Project, Yavatmal, benefitted Zone No.1, Yavatmal may kindly be stayed till the decision of this writ petition and the order be communicated to the said authorities in the said case."

3. After presentation of the petition, Rule was granted and ad interim relief in terms of prayer clause (2) was granted on 10.4.1987.

4.Brief facts are as under : The father of the petitioner by name Dhondopant Deo was the original owner of field Survey No.49 admeasuring 11 hectares 40 Ares. He died on 21.2.1979 leaving behind him three sons including the petitioner Vasant, Sharad and Jayant and wife Saraswatibai. Prior to that a notification under Section 11(1) of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short, the Resettlement Act) was issued on 24.11.1978. After the death of Dhondopant Deo, the petitioner, his mother and brothers partitioned their agricultural holdings by virtue of registered partition-deed dated 27.11.1979. It appears that the District Resettlement Officer, after making compliance of the provisions of Resettlement Act, had submitted the proposal of the land to the extent of 2 hectares 2 Ares on 3.8.1984. The Notification under Section 4 of the Land Acquisition Act, 1894 (for short, the L.A. Act) was published in the official gazette on 13.9.1984. The petitioner was served with the notice under Section 4(1) of the L.A. Act dated 18.10.1984. The petitioner had submitted his objections by virtue of the letters dated 12.3.1984 and 27.11.1984 and contended that the land after partition cannot be acquired by virtue of the provisions of Resettlement Act as the holding has been reduced to less than 8 acres. The Land Acquisition Officer after hearing the petitioner and conducting the inquiry under Section 5A of the L.A.Act declared by virtue of notification under Section 6 on 5.7.1985 that the land is acquired for the public purpose and he accordingly sent the proposal to the Commissioner on 5.7.1985.

5.The learned counsel for the petitioner does not dispute that the land in question was being acquired for the public purpose. He contended that as per the provisions of Resettlement Act, if the holding of the person is less than 8 acres then the said land cannot be acquired. He contended that the father of the petitioner Dhondopant Deo died on 21.2.1979 and thereafter the legal heirs, i.e. three co-parceners and widow, had effected the registered partition-deed on 27.11.1979 which would indicate that the holding of the petitioner has been reduced to less than 8 acres. He contended that the notification under Section 4 of the L.A.Act was published in Govt. Gazette on 13.9.1984 and he had received the notice under Section 4(1) on 18.10.1984. He further contended that the objections were submitted to the Land Acquisition Officer on 12.3.1984 and 27.11.1984 wherein the fact of effecting partition was brought to the notice of the Land Acquisition Officer, but opportunity was not given to the petitioner to adduce evidence in support of his contentions mentioned in the objections. The Land Acquisition Officer did not conduct any inquiry as laid down under Section 5A of the L.A. Act and as opportunity of hearing was not granted, the notification under Section 4 of the L.A.Act is bad in law. He contended that the registered partition-deed was admissible in evidence under Section 51A of the L.A. Act. He vehemently argued that since there was a statutory partition under Section 6 of the Hindu Succession Act, 1956 and when the holding of the petitioner was reduced to less than 8 acres, the land of the petitioner cannot be acquired by virtue of the provisions of the Resettlement Act and also as per the Resolution passed by the Govt. of Maharashtra on 26.3.1973 which clearly envisages that the land less than 8 acres is not to be acquired. He, therefore, contended that the entire land acquisition proceedings are vitiated and deserve to be quashed.

5.The learned A.G.P. contended that on 23.7.1984 the Collector, Yavatmal, submitted a proposal of requirement of 2 hectares 2 Ares of land from Survey No.49 of village Anji for distribution to the project affected persons of Waghadi project. It was mentioned in the statement appended with the said proposal that Shri Vasant Dhondopant Deo owned Sr.No.49 admeasuring 11.68 hecatres (about 28 acres 25 gunthas) and out of this survey number only 2.02 hectares of land was required for acquisition. Therefore, the Land Acquisition Officer started acquisition proceedings. He contended that the petitioner had raised objection to the Notice under Section 4(1) of L.A. Act on 27.11.1984 which was sent to the acquiring body, i.e. District Settlement Officer, Yavatmal, who gave report on 13.6.1985 to the effect that on the date of notification under Section 11(1) of the Resettlement Act published in Maharashtra Government Gazette on 24.11.1978 Shri Vasant Dhondopant Deo, the father of the petitioner, was alive and the levy (i.e. 2.02 hectares of land of Survey No.49) was computed on the date of the notification and in view of this situation the objection was not accepted. The notification under Section 4 of the L.A. Act was published in Maharashtra Govt. Gazette on 13.9.1984 and after holding necessary enquiry the notification under Section 6 has also been published in the Govt. Gazette. The learned A.G.P. further contended that the land has been acquired for the public purpose for rehabilitation of the persons who have been displaced because of the Waghadi project under the provisions of the Resettlement Act and by virtue of Section 16(2) of the Resettlement Act the State Government also for carrying out the purpose can acquire the land compulsorily under the provisions of the L.A. Act. He contended that any partition of the land is prohibited by virtue of Section 12 of the Resettlement Act after publication of the notification under Section 11(1). He, therefore, contended that the land acquisition proceedings are in accordance with the law. In support of his contention, the learned A.G.P. relied on the decision of Division Bench of this Court in the case of Shivgonda Balgonda Patil v. The Director of Resettlement & ors. - .

6.We have carefully considered the contentions canvassed by the learned counsel for both the parties. In order to appreciate the contentions of the parties, it is necessary to reproduce some of the provisions of Resettlement Act.

Section 11(1) contemplates that, "If the State Government is of opinion that it is necessary or expedient in the public interest so to do, for 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."

Section 11(2) contemplates that, "The declaration shall also be published in the villages or areas which are 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."

7.The learned counsel for the petitioner does not dispute that the land of the petitioners father was being acquired for public purpose, i.e. for rehabilitation of displaced persons of Vaghadi project. It is true that if the holdings of any person is less than 8 acres then the land cannot be acquired as is mentioned in Part II of Schedule A (Section 16) of the Resettlement Act. The Govt. of Maharashtra has also passed the Resolution dated 26.3.1973 bearing No.GAD-RPA-1071/41583/R-I wherein it has been mentioned that if the size of the holding of the owner of private land from the benefited zone is less than eight acres then it is not to be acquired for the purpose of resettlement of the Project affected persons.

8.The father of the petitioner by name Dhondopant Deo died on 21.2.1979 and thereafter the legal heirs including coparceners had effected partition on 22.11.1979. The said partition-deed has been registered which would indicate that the size of the holding of the petitioner has been reduced to the extent of 2 hectares and 2 Ares of land, which is less than eight acres of land. What is significant to note is that by virtue of the provisions of Section 12 of the Resettlement Act, once the notification under Section 11 has been issued, the partition of any land is prohibited. It is necessary to reproduce Section 12 which lays down as under :

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 Official 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) partition (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 objection 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 or partition of land made in contravention of sub-sections (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 of Districts who are ex-officio Deputy Directors (Lands), subject to such conditions and limitation, if any, as may be specified in the order.]

9. Plain reading of Section 12 would reveal that the intention of the Legislature in enacting these provisions is that the private land is to be acquired for the purpose of resettlement of the Project displaced persons and once the notification under Section 11(1) is issued, any partition of the land made thereafter in contravention of sub-section (1) of Section 11 would be void and inoperative.

10.Sub-section (1) of Section 16 contemplates that the State Government may enter into an agreement with any person for the purchase or exchange, of any land required for carrying out the purposes of this Act. Sub-section (2) of Section 16 envisages that subject to the provisions of this section, the State Government may also for carrying out the purposes of this Act compulsorily acquire land under the Land Acquisition Act, 1894, and the acquisition of any land for the said purposes shall be deemed to be a public purpose within the meaning of that Act. As per sub-section (3) the State Government may also acquire lands included in a gaothan in the affected zone as far as practicable according to the provisions of Part I of Schedule A hereto. Sub-section (4) lays down that for the purpose of resettling displaced persons on land, the State Government may, subject to any rules made in this behalf, acquire land from holdings in the benefited zone or from any village or area specified under section 10 as far as practicable according to the provisions of Part II of Schedule A hereto. Sub-section (5) lays down that all lands acquired under this section shall form part of the land pool.

11.In the present case, the land pool was created after acquisition of the private lands and thereafter the proposal was sent to the Collector/Land Acquisition Officer for compulsory acquisition of the land including the land of the petitioner and others. The said proposal was received by the Land Acquisition Officer who started acquisition proceedings in Land Acquisition Case No.12/47/84-85 Anji-Nursing. The notification under Section 4 was published in the Maharashtra Government Gazette on 13.9.1984. Notice under Section 4(1) including the public notice was issued and the matter was fixed by the Land Acquisition Officer for hearing at Ghatanji camp on 23.11.1984. It appears that the petitioner had filed objection on 23.11.1984 which was sent to the District Resettlement Officer sometime on or about 17.1.1985. The clarification was received from the District Resettlement Officer on 1.6.1985 and thereafter notification under Section 6 was issued and it was published in the daily newspaper Lokmat on 26.3.1986 and also on 29.3.1986 in daily newspaper Pratapgadhche Vare.

12.The learned counsel for the petitioner vehemently argued that since there was a statutory partition as per the provisions of Section 6 of the Hindu Succession Act, the acquisition of land reducing the size of the holding of the petitioner less than eight acres is bad in law. It is a fact that on the date of notification under Section 11(1) of the Resettlement Act, the father of the petitioner was alive and his family comprised of his three sons and wife were holding the joint Hindu family property, i.e. agricultural land which was about 28 acres and 25 gunthas of.

13.In - Shivgonda Balgonda Patil and others V. The Director of Resettlement and others, it is observed in paragraphs No.18 and 19 that, "In the case of Ganpat Balwant Pawar v. Special Land Acquisition Officer No.7 reported in 1984 Mh.L.J. 752 : (AIR 1984 Bom.382) (FB), in almost identical circumstances the Full Bench of this Court negatived the contentions of the petitioners therein that there was any partition between the members of the joint family concerned or that each person must be considered as having a separate holding for the purpose of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. In the case before the Full Bench also it was urged on behalf of the petitioners that although the total holding of the joint family was large, subsequently each of the petitioners was allotted only a portion of the land and as a result, each person must be held to cultivate his land separately and independently; and this should be considered as his holding. The Full Bench pointed out that there was only a single khata (account) of all the petitioners together though against the name of each petitioner, it was mentioned that he was holding a 1/4th share in the lands in the same khata. The situation is identical in the present case. We have no evidence of any partition before us. This contention was raised by the petitioners even at the stage of enquiry u/s. 5A of the Land Acquisition Act. There is no material before us to show that such of the petitioners is having any independent holding which can be taken into account for the purpose of the said Act."

In paragraph no.19 it has been held, "It is further submitted by the petitioners that in view of the provisions of the Hindu Succession Act, 1956 there was an automatic partition amongst the heirs of Balgonda Patil on his death. Hence each of the petitioners must be considered as having a separate holding. Balgonda Patil was the father of the 1st petitioner and grand-father of petitioners Nos. 2, 3 and 4 who are the sons of Ramgonda Patil. Ramgonda Patil was the brother of Shivgonda Patil, the 1st petitioner and the son of Balgonda Patil. Ramgonda Patil has died and hence the names of petitioners Nos. 2,3 and 4 are entered in the khata after the death of Ramgonda Patil. It is well settled that on the death of a male Hindu who is a coparcener in a joint family there is no automatic partition of his share in the joint family properties amongst his male heirs. But if the deceased has left him surviving a female heir as specified in S.6, a notional partition is deemed to have taken place in the joint family property at the time of the death of the deceased for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. In the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh , the Supreme Court considered this question in the context of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It held that in the case of a joint family consisting of karta, son, wife and mother, on the death of karta the surviving members continued to remain joint. Hence all members together are entitled to one ceiling unit. The Supreme Court negatived the contention that by reason of the death of the Karta there was an automatic partition amongst the members of the joint family. The Supreme Court has held that only the share of the female members in the family properties becomes fixed on the date of death in such circumstances. But there is no partition of the joint family. The contention of the petitioners, therefore, that there was an automatic partition amongst the heirs of Balgonda Patil on his death must be negatived."

14.In the present case, the learned counsel for the petitioner contended that the aforesaid decision of the Division Bench is not applicable because the facts and circumstances can be very well distinguished. According to him, in the present case, the death of the father of the petitioner occurred on 21.2.1979 and thereafter partition was effected between the co-parceners and the widow on 27.11.1979 and the partition-deed was also registered. He further contended that since the registered partition-deed would be admissible in evidence to show that the size of the holdings of the petitioner has been reduced to less than 8 acres, the land of the petitioner cannot be acquired. On careful consideration of his contentions, we are of the considered view that there is no merit in his submissions because it appears that the partition has been effected only with a view to defeat the object and provisions of Resettlement Act. Section 12 of the Resettlement Act clearly lays down that, "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 Official 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, the partition including partition by a decree or order of any court or any other competent authority made in contravention of sub-section (1) [or any condition imposed under sub-section (2)] shall be void and inoperative.

15.No doubt, Dhondopant Deo, a male Hindu, died intestate leaving behind him his three sons and widow. It is a fact that on the death of male Hindu co-parcener in the joint family there is a notional partition under Section 6 of the Hindu Succession Act, 1956. It is also a fact that the partition-deed was executed on 27.11.1979. But all these events are the subsequent events and on the date of issuance of notification under Section11(1) of the Resettlement Act the size of the holdings of Dhondopant Deo was to the extent of 28 acres and 25 gunthas. Therefore, the date 24.11.1978 is the crucial date on which the notification under Section 11(1) of the Resettlement was published and, therefore, we are of the considered view that the partition effected thereafter either by virtue of Section 6 of the Hindu Succession Act or by mutual consent on 27.11.1979 would be void and inoperative.

16.It is pertinent to note that perusal of the registered partition-deed show that it was reduced into writing on the stamp paper of Rs.31.50. Party no.1 was Smt.Saraswatibai wd/o Dhondopant Deo, aged 70 years; party no.2 was Vasant Dhondopant (petitioner), aged 50 years; party no.3 was Sharad s/o Dhondopant, aged 27 years; and party no.4 was Jayant s/o Dhondopant, aged 19 years. Party no.1 and 3 were residents of Anand, district Gujarat. Party no.2 and 4 were residing at Bombay. Thus, it would be obvious that the widow was living with her son Sharad at Anand in Gujarat State, whereas the other two sons Vasant and Jayant were living at Bombay. The recitals of the partition-deed after allotment of the respective shares to the parties show like this, "In this way, the party no.1 to 4 partitioned the property and each person has taken the possession as per this partition. Every body became the full owner of the property which fell to their share and they are entitled to take the benefit of the land. As per this partition deed every body is entitled to mutation of their names and nobody will object to the said mutation. For this partition, Deed excluding the share of party no.4 i.e. largest price, the stamp has been paid on the price of three persons. This partition-deed is acceptable to all the persons."

17.Perusal of these recitals would show that the partition-deed has been brought into existence in order to defeat the provisions of Resettlement Act. There is no material on record from which it could be said that the petitioner and his mother and brothers had actually started cultivation of the land of their respective shares by taking the possession. There is also no material on record to show that the names of each sharer has been brought on record of rights by certification of mutation entry.

18.In such circumstances, we do not find any merit in the arguments of the learned counsel for the petitioner that by virtue of the provisions of Section 6 of the Hindu Succession Act, the partition was effected reducing the size of the holdings of the petitioner to less than 8 acres and, as such, the acquisition proceedings are bad in law.

19.The deceased Dhondopant Deo or the petitioner or any of the legal heirs did not raise any objection after publication of the notification under Section 11(1) of the Resettlement Act which was published in the Maharashtra Govt. Gazette on 24.11.1978 and, therefore, the acquisition of the land to the extent of 2 hectares 2 Ares, out of 11 hectares and 40 Ares from Survey No.49 cannot be said to be contrary to the provisions of Resettlement Act or Govt. Resolution dated 26.3.1973.

20.It is not disputed that as per sub-section (2) of Section 16 of the Resettlement Act, a proposal was sent by the District Resettlement Officer to the Land Acquisition Officer, Upper Painganga Project, benefited Zone No.1, Yavatmal on 3.8.1984. On receiving the said proposal, notification under Section 4 of the L.A. Act was published in the Maharashtra Govt. Gazette on 13.9.1984. Unless the land owner establishes or proves the fact of colourful exercise of power in the acquisition of the said land, the said acquisition proceedings are not liable to be questioned. There is no material on record to establish or prove that there was a colourful exercise of power by the Land Acquisition Officer or the District Resettlement Officer. Once the notification under Section 4 has been published, the land sought to be acquired vest in the Government and it cannot be divested on the ground that no opportunity of hearing was given to the petitioner.

21.It is true that the petitioner had submitted his written objections to the Land Acquisition Officer on 12.3.1984 before publication of the notification under Section 4. It is also true that the petitioner had submitted written objection on 27.11.1984 after publication of the said notification to the Land Acquisition Officer wherein the only objection was that by virtue of the partition effected on 27.11.1979 the size of the holding of the petitioner was reduced to less than eight acres and hence the said land is exempted from acquisition. We have also considered this aspect of the matter and we are of the considered view that even though there was a partition on 27.11.1979, that would not ipso facto come in the way of acquisition of the land because there was no partition on 24.11.1978, on which date the notification under Section 11(1) of the Resettlement Act was published in the Govt. Gazette.

22.The order-sheets in the land acquisition proceedings would show that the written objection was received by the Land Acquisition Officer on 23.11.1984 which was sent subsequently to the District Resettlement Officer on 17.1.1985 and thereafter on 5.7.1985 the clarification was received from the District Resettlement Officer. It would clearly reveal that since the objection of the petitioner was not acceptable, notification under Section 6 of the L.A. Act was prepared on 5.7.1985 by the Land Acquisition Officer and it was sent for approval to the Commissioner on 10.12.1985 which was within one year from the date of publication of the notification under Section 4 of the L.A.Act. Notification under Section 6 was approved and received back on 13.2.1986 and thereafter it was published in two local newspaper on 26.3.1986 and 29.3.1986 respectively. Consequently, it is not possible to accept the contention of the learned counsel for the petitioner that no opportunity of hearing was given to the petitioner and hence the whole proceedings are vitiated and that the acquisition of the petitioners land is null and void and violates Articles 14, 19 and 300-A of the Constitution of India. We do not find any merit in this petition which is liable to be dismissed. Interim relief granted in terms of prayer clause (2) is vacated. Petition is dismissed. In the circumstances of the case, no order as to costs. Rule discharged.