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2006 DIGILAW 1353 (BOM)

RAM HARIBHAU GUNJAL v. STATE OF MAHARASHTRA

2006-08-30

NARESH H.PATIL, R.M.S.KHANDEPARKAR

body2006
ORAL JUDGMENT R. M. S. KHANDEPARKAR, J. ;- Heard. 2. Petitioners by the present petition are seeking direction respondents to delete the land bearing Survey No, 148/1 admeasuring 8 out of acquisition proceedings which were initiated for the benefit of Pim Joga Dam, under the provisions of Maharashtra Resettlement of Project Persons in Village Belha, Taluka Junnar, District Pune, and in that re quash the Notice dated 17-8-2000 issued in that respect and further direct the respondent Nos. 1 to 3 to proceed against the respondent Nos. 4 and 5 in to the surplus area with the said respondents in accordance with the provisions law, with the exclusion of the land bearing Survey No. 148/1 admeasuring 81 3. Few facts relevant for the decision are that the land bearing Survey No. 811 admeasuring 81 Ares situate at Village Belha, Taluka Junnar, District Pune longed to the respondent Nos. 4 and 5. Under an Agreement dated 27-3-1974 ecuted by the said respondents in favour of the predecessor in title i.e. the ther of the petitioners and on acceptance of sum of Rs. 60,000/- out of the total consideration price of Rs. 70,000/-, possession of the said land was delivered to predecessor in title of the petitioners. In spite of investment of money for development of the property, pursuant to delivery of possession consequent to the execution of the said Agreement, by the predecessor in title of the petitioners, since the respondent Nos. 4 and 5 hesitated to execute the Sale Deed, they filed special Civil Suit No. 610 of 1976 for specific performance of the said Agreement in the Court of Civil Judge, Senior Division, Pune, in the year 1976, which came to be decreed on merits on 31-3-1986 with the direction to the petitioners to deposit the balance amount in the Court and it was accordingly posited by the predecessors of the petitioners. The respondent Nos. 4 and 5 transferred an Appeal being First Appeal No. 464 of 1986 in this Court which came to be dismissed on 5-10-1994. Efforts to restore the Appeal also proved futile. Consequent to the death of the father i.e. predecessor in title, the petitioners acquired right to the said suit land. 4. Records further disclose that on 30-8-1989 Notification under section II Maharashtra Resettlement of Project Affected Persons in respect of Village Iha, Taluka Junnar, Dist : Pune, came to be issued. Efforts to restore the Appeal also proved futile. Consequent to the death of the father i.e. predecessor in title, the petitioners acquired right to the said suit land. 4. Records further disclose that on 30-8-1989 Notification under section II Maharashtra Resettlement of Project Affected Persons in respect of Village Iha, Taluka Junnar, Dist : Pune, came to be issued. It appears that on that date, total holding of the land of the respondent Nos. 4 and 5 was being shown as 4 Hectres and 56 Ares while slab limit under the said Act was 3 Hecters and 23 s. It is further revealed that in the Declaration given by the respondent Nos. 4 5 they preferred to include the suit land to be the surplus area for the purpose acquisition under the said Act. 5. All the above narrated facts are not in dispute. There is no Counter aafidavit filed by the respondents disputing any of these facts. 6. The learned Advocate for the petitioners submitted that once the property in question was already sold to the petitioners predecessor under Agreement dated 27-3-1974 by delivery of possession thereof, and the same was having been confirmed by the Decree of the Civil Court dated 31-3-1986, which not been interfered with by the Appellate Court on account of failure on the of the respondents to secure any such alteration in the said decree in the al filed against the same, there was neither any reason nor justification for respondent Nos. 4 and 5 to declare the suit land as the surplus area for the purpose of acquisition under the said Act and for the same reason the other respondents would not have accepted the said Declaration in relation to the said and as far as excess area they could have proceeded against the other land e said respondent Nos. 4 and 5. 7. On the other hand, the learned Advocate for the respondent Nos. 4 and 5 submitted that the appeal filed against the Decree of the trial Court is still pending before District Court on account of the same having been transferred to District Court. According to her, therefore it is too premature to deal with the contentions sought to be raised on behalf of the petitioners. 8. 4 and 5 submitted that the appeal filed against the Decree of the trial Court is still pending before District Court on account of the same having been transferred to District Court. According to her, therefore it is too premature to deal with the contentions sought to be raised on behalf of the petitioners. 8. Learned Advocate appearing for the other respondents submitted Revenue Records at the relevant time disclosed that the suit land occupation of the respondent Nos. 4 and 5 and therefore the declaration accepted. 9. In the background of undisputed facts and more particularly cons that the possession of the suit land was delivered to the petitioners father 1974 and it continued with the petitioners father and thereafter petitioners continuously since then, merely because the Revenu disclosed the name of the respondent Nos. 4 and 5 in the year 198 occupation of the suit land, that by itself cannot ensure to the be respondents to contend that they would be entitled to include the said surplus area to be declared by the said owners for the purpose of under the said Act. Once the claim of the petitioners was duly confirmed Decree of the Civil Court and which had not been set aside in the Act. same decree should be deemed to have attained finality. Undisputedly, t was issued in the year 1986 much prior to the Notification under section said Act. The decree relates back to the date of the delivery of possession property under the Agreement of which the specific performance was order the said Decree. The date of the Agreement relates to 27-3-1974. In other nearly more than 12 years prior to the issuance of the Notification under. 11 of the Act, the property ceased to be in occupation of the respondent and 5. 10. The contentions on behalf of the respondent Nos. 4 and 5 Appeal is still pending against the decree of the trial Court, is totally d substance as it is not corroborated by any material on record. There is averment made in the petition in paragraph 6 that the appeal was dismissed this Court on 5-10-1994 on account of default in appearance on the para Appellants. It is further stated that the application for restoration filed respondent Nos. 4 and 5 has also been dismissed and therefore the decree attained finality. There is averment made in the petition in paragraph 6 that the appeal was dismissed this Court on 5-10-1994 on account of default in appearance on the para Appellants. It is further stated that the application for restoration filed respondent Nos. 4 and 5 has also been dismissed and therefore the decree attained finality. The respondents have not countered the said statements by producing any material which can establish to the contrary. 11. Being so, the statement which has not been countered in the was required to be countered, must be deemed to have been establish proved, and hence it is to be held that the Decree passed by the trial court 3-1986 in Special Civil Suit No. 610 of 1976 has attained finality. T finality having been attained with relation to the date of the decree which i prior to the issuance of Notification under section 11 of the said A petitioners are justified in contending that the respondent Nos. 4 and 5 was entitled to include the said land in the surplus area of the respondent Nos. for the purpose of the said Act. For the same reasons, the respondent Nos. also could not have acted upon such Declaration in relation to the said Prima facie it appears that the respondent Nos. 4 and 5 have played a frau the Authority, in that regard. 12. Even assuming that the Appeal is pending against the impunged decree, fact remains that the decree passed by the trial court has not been and for all purposes it is operative. Being so, either on 30-8-1989 on the which the Notification under Section II was issued under the said Act as also respondents submitted that that the suit land was before the declaration the Declaration was made by the respondent Nos. 4 and 5 regarding the s area, the decree of the trial court was in full force. Obviously, therefore date when the Declaration was made, respondent Nos. 4 and 5 were not to include the said land as surplus area for the purpose of the said Act. today there is no stay to the decree of the trial Court and this fact is not in dispute. 13. Being so, even today they are not entitled to include the said area as. surplus area of the respondent Nos. 4 and 5. 14. today there is no stay to the decree of the trial Court and this fact is not in dispute. 13. Being so, even today they are not entitled to include the said area as. surplus area of the respondent Nos. 4 and 5. 14. Even otherwise, when the matter is under dispute, it would not be a of privilege of the owner to insist to include such area as surplus area for purpose of the said Act. Being so, irrespective of the pendency of the Appeal, respondent No A and 5 were not entitled to include the area in question as the s area for the purposes of the said Act. 15. In the result on all counts, the inclusion of the said land in the surplus f the respondent Nos. 4 and 5 was totally wrong and unfair on the part of respondent Nos. 4 and 5. The petitioners therefore are justified in contending that the respondent Nos. 1 to 3 have to proceed against the respondent Nos. 4 and elation to the excess area, taking into consideration the remaining area of the land with the respondent Nos. 4 and 5 and excluding the suit land, in dance with the provisions of the said Act. 16. For the reasons stated above, therefore, the petition succeeds. The impugned Declaration by the respondent Nos. 4 and 5 in relation to the excess o the extent it relates to the suit rand bearing Survey No. 148/1 admeasuring 81 Ares along with the notice dated 17-8-2000 so far as it relates to the suit land are lashed with liberty to the respondent Nos. 1 to 3 to proceed against the respondent Nos. 4 and 5 for acquisition of the surplus area of the respondent Nos. 5 in accordance with the provisions of law excluding the suit land. We expect the respondent No. 1 to take appropriate action against the respondent Nos. 4 and 5 for misleading the Authorities and making false. relations in relation to surplus area. The respondents are expected to take appropriate action in that regard. Rule is made absolute accordingly with costs of 2000/- to be paid by the respondent Nos. 4 and 5. Petition allowed.