Nivrutti S/O Shankar Shewale ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 401 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard Shri S.K. Shinde, learned Counsel for the petitioner, and Shri N.H. Borade, learned A.G.P. for the respondents.

2. This petition takes an exception to the Government Notification dated January 25, 1988 issued by respondent under Section 4(1) of the Land Acquisition Act, 1894 and published in the Maharashtra Government Gazette dated April 7, 1988, as well as Notification under Section 6 of the Land Acquisition Act, 1894 dated July 31, 1989, published in Maharashtra Government Gazette dated August 3, 1989, holding that the land to the extent of 0 Hector, 81 ares out of Gat No. 30/4 (Part) situate at village Takli, Taluka Akole, District Ahmednagar, is required for public purpose. By way of consequential relief, the Notification issued under Section 11 of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976 (hereinafter referred to as the "Act of 1976", for short) is also sought to be quashed and set aside to the extent of petitioner's land from Gat No. 30/4 of village Takli, Taluka Akole, District, Ahmednagar.

3. Division Bench of this Court, by order dated October 18, 1989, issued Rule and, initially rule on interim relief was also granted, returnable on November 27, 1989. On November 27, 1989, stay in terms of prayer Clause (C) was issued. Admittedly, there is no return filed by the respondent-State or its authorities.

4. With the able assistance of Shri S. K. Shinde, learned Counsel for the petitioners, I have seen the documents annexed with the petition. The copy of 8A extract, showing the holding of present petitioner, is placed on record at page 35 of the petition. It shows the holding of the petitioner, as being 02 Hector and 66 Ares. It appears from 8A extract that, the same was issued in favour of the petitioner by the concerned Revenue Officer on October 6, 1987. I have also seen the mutation entry No. 1711, which is taken in revenue record on April 7, 1977 and certified by the competent Revenue Officer on June 18, 1977. The mutation entry shows that partition took place between the petitioner and his brothers, which is reported to the Revenue Officer concerned and, accordingly, by the order of Tahsildar, Akole, this mutation is effected in the Record of Rights.

5. The petitioner, on the strength of this mutation, claims that the partition took place between him and his brother regarding agricultural lands, was reported to the Revenue Officer and the same is, accordingly, recorded by this mutation. The petitioner, therefore, claims that his holding before issuance of the Notification under Section 11 of the said Act of 1976, as well as issuance of Notification under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894 was below 8 acres, that is, below permissible holding and hence, his land ought not to have been declared for acquisition. The petitioner also states in the petition that, he was holding some other lands as a mortgagee and the same are re-conveyed to the mortgagor.

6. The petitioner has placed on record at Exhibit E, the mutation entry No. 1882 taken into Record of Rights on November 7, 1981. It is mentioned in the said mutation entry that notice has been served on April 13, 1981 and that, the land Survey No. 22/2-1, which was in possession of the petitioner as mortgagee has been reconveyed to its owner Abbas Balam Akbar Balam Mahammad Balam Pathan. The 7/12 extract of the land Survey No. 22/2-1 is also placed on record, which reflects the mutation entry No. 1882. Another mutation entry No. 1862 at Exhibit F shows that the land Survey No. 26/1A-1 and 2, which was in possession of the petitioner as a mortgagee, had been reconveyed by him in favour of the mortgagor Pandu Nimba Awhad. This mutation is also taken in the Record of Rights on June 24, 1981 and certified by Competent Authority on August 8, 1981. The 7/12 extract of the said lands Survey No. 26/1A-1 and 1A 2 is also placed on record, which reflects the said mutation entry No. 1862.

7. It is also the contention of the petitioner in the petition that, the land Survey No. 29/1B/1 admeasuring about 45 ares was restored to tribal in accordance with the orders passed by the competent authority and mutation entry No. 2055 in respect of the said restoration has been placed on record at Exhibit G. In support of this mutation, from which it appears that possession of the said land was handed over to the tribal, panchanama/receipt dated September 4, 1987, is produced.

8. The petitioner has averred in para 12 of petition that, his holding as on the date of the Notification under Section 11 of the said Act of 1976, as well as Notification under Sub-section (1) of Section 4 of the Land Acquisition Act 1894, was to the extent of 2 Hectors 66 Ares which is not liable for acquisition. He denies that his holding was 4 Hectors 47 Ares.

9. Considering the contentions raised and documents placed on record and referred to above, there appears substance in the contention of the petitioner. Holding of the petitioner prior to the issuance of the Notification under Section 11 of the said Act of 1976, as well as under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894, was below permissible limit, that is, 8 acres and, therefore, is not liable for acquisition. This Court, in the matter of Draupadabai v. Special Land Acquisition Officer, 1979 BCR 644, held in paragraph 4 as under :

"These facts and these documents are relied upon by the petitioners in the present petition. The averments are made on affidavit. The documents are also annexed to the petition. There is no challenge by the State to the authenticity of these documents. Nor is there any contention of the State that the partition is not genuine. Indeed there has been a partition brought about through a civil suit and receiving its judicial stamp from the Civil Court. The said partition has also been given effect to in the revenue record of the State Government. This being the position, consequence must follow that the holdings of the different petitioners herein must be taken to be in accordance and in consequence with the shares received by the petitioners in the aforesaid partition decree. Considering the holding in the context of the said partition decree passed long prior to the impugned notification under Section 4 of the Land Acquisition Act, we find that the respondents are not entitled to acquire the land proposed to be acquired under the impugned notification viz. 12 acres and 7 gunthas out of S. No. 85/1 aforesaid. This would be the position even after accepting the slab system and even after applying the said system to the holdings of the petitioners herein. Indeed, the slab system in the present case works in favour of the petitioners and protects their holdings. In this view of the matter, the impugned notification, insofar as it relates to the land in question and the acquisition in pursuance thereof, are liable to be set aside and quashed."

10. The contention of the petitioner that the lands, which were in his possession as a mortgagee, cannot be considered as his holding, is also acceptable and legal one. The holding of a person is defined under Sub-section (10) of Section 2 of the said Act of 1976, which reads thus:--

"2(10). "holding" means the total land held by a person as an occupant or tenant, or as both."

11. Thus, it is provided that the holding means total land held by person as an occupant or as a tenant or as both. In the present case, two pieces of land, that is, land Survey Nos. 22/2-1, admeasuring about 41 Ares, along with another land Survey No. 26/1A/1A2 to the extent of 53 Ares, were in possession of the petitioner as a mortgagee. Admittedly, both these lands have been reconveyed by the petitioner prior to the issuance of the Notification under Sub-section (1) of Section 4 of the Land Acquisition Act. Thus, these two lands, held by the petitioner as a mortgagee, cannot be said to be his holding within the definition of Sub-section (10) of Section 2 of the said Act of 1976.

12. As stated above, the two lands held by petitioner as a mortgagee, have been reconveyed by him in favour of the mortgagor before issuance of Notification under Sub-section (1) of Section 4 of the Land Acquisition Act. Apart therefrom, while considering the holding of a person under the provisions of the said Act of 1976, if some land/lands are being held by any person as a mortgagee in possession, those lands cannot be treated to be part of holding of that person, reason being that, in accordance with the terms of the document of mortgage, the land held by a person as a mortgagee in possession, is being held by such person for a particular period mentioned in the said document, or in accordance with the provisions of law. For this reason also, the lands held by the petitioner as a mortgagee cannot be treated or considered as lands held by him.

13. It appears that, in the present case the respondents have treated the two pieces of land held by the petitioner as a mortgagee, along with one more piece of land, which is restored to tribal, as a part of his holding and, therefore, the respondents have considered the holding of the petitioner as 4 Hector 47 Ares, which is per se illegal.

14. I am, therefore, of the considered view that the holding of the petitioner in the present case was only to the extent of 2 hector 66 Ares and, therefore, not liable for acquisition. The Notification under Section 11 of the said Act of 1976, as well as under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894, to the extent of 81 Ares out of land Survey No. 30/4 of village Takali, Taluka Akole District Ahmednagar, need to be quashed and set aside.

15. In the result, petition is allowed the Notification under Section 11 of the said Act of 1976, bearing No. 361 RPA (Upper Pravara) 1077/1248 R. I. dated May 16, 1978 is quashed and set aside to the extent of land admeasuring 0 Hector 81 Ares situated at village Takli Taluka Akole, District Admednagar. The Notification under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894, bearing No. LAQ/S.R/6/88, dated January 25, 1988, to the extent of 0 Hector, 81 Ares out of land Survey No. 30/4 of village Takali, Taluka Akole, District Admednagar, is quashed and set aside.

16. Consequently, the individual notice under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894, and the Notification under Section 6 of the Land Acquisition Act, bearing No. LAQ/S.R./6/88 dated July 31, 1989, to the extent of land admeasuring 0 Hector 81 Ares from out of Survey No. 30/4 of village Takali, Taluka Akole, District Ahmednagar are set aside.

17. Rule is accordingly, made absolute in above terms. No costs.