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2012 DIGILAW 169 (BOM)

Anil s/o Ganesh Somni v. The State of Maharashtra

2012-01-24

NARESH H.PATIL, T.V.NALAWADE

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Judgment :- NareshH Patil, J. 1) The petitioners state that they are lawful owner and possessor of their respective shares in the land in Survey No.19 situated at village Rede, Taluka Akole, District Ahmednagar. The total land was 4 hectares 10 R out of which 10 R was already acquired in the land acquisition proceedings in the year 1964. According to the petitioners their shares are carved out as under: (1) Anil Ganesh Somni ... 2.54 R. (2) Sunil Ganesh Somni ... 2.52 R. (3) Sau Simantini Anil Thite ... 2.52 R. (4) Shila Vijay Kulkarni ... 2.52 R. 2) The respondent Nos.1 to 3 initiated proceedings for land acquisition under the Land Acquisition Act 1894. Notifications under sections 4, 6 and 9 were issued. Land admeasuring 81 R from Survey No.19 was to be acquired for the purpose of resettlement of the project affected persons. Notice to this effect was issued to the father of the petitioners under Maharashtra Resettlement of Project Displaced Persons Act, 1976, (for short, “the Act, 1976”). It is submitted that notice referred to 40 R from land Survey No.19. In the notice issued under the Land Acquisition Act, 1894, an area of 81 R land was shown to be acquired. 3) The petitioners challenged the notices issued under the respective enactments by filing Writ Petition Nos.937 of 2000, 944 of 2000 and 945 of 2000. The petitioners' case is that by an order dated 7-2-2001 this Court disposed of the writ petitions by directing the Additional Commissioner Nashik to consider the applications filed by the petitioners and the decide the same in view of the provisions of Section 48 of the Land Acquisition Act. By an order dated 12-2-2003 the Additional Commissioner rejected the applications. Being aggrieved thereby the petitioners preferred this writ petition. 4) Consequent to the notice issued, the respondents filed affidavit-in-rely. The deponent contends that, notification under section 4 of the Land Acquisition Act was issued on 6-12-1997. Declaration under section 6 of the Act was made on 25-2-1999 and the award was passed on 3-3-2001. The claimants refused to withdraw the compensation amount, therefore, the amount of Rs. 20,68,159/-(Rupees Twenty Lakh Sixty Eight Thousand One Hundred and Fifty Nine Only) was deposited in the national bank. Notices under section 12(2) of the Act were served on the petitioners on 19-6-2001. The claimants refused to withdraw the compensation amount, therefore, the amount of Rs. 20,68,159/-(Rupees Twenty Lakh Sixty Eight Thousand One Hundred and Fifty Nine Only) was deposited in the national bank. Notices under section 12(2) of the Act were served on the petitioners on 19-6-2001. 5) The learned Senior Counsel Shri. Pravin Mandlik submits that the order passed by the Additional Commissioner rejecting the application of the petitioners for withdrawal of the acquisition proceedings is unreasonable and therefore deserves to be quashed and set aside. Acquisition in respect adjoining lands was not pressed by the State Government which establishes that the petitioners' land is not required by the State. The impugned award passed was perverse, according to the counsel. The learned Senior Counsel further submits that the entire proceedings of the acquisition under the Act 1976 is contrary to the provisions of Section 16 of the said Act, inasmuch as the petitioners do not hold more than 3 hectares and 23.75 R (8 acres) land as prescribed in Part II of Schedule A of the Act, 1976. It is the contention of the petitioners that, Ganesh Vishnu Somni, father of the petitioners, died on 5-12-1995. The petitioners are legal representatives of deceased Ganesh Somni. Mutation entry in the names of the petitioners was recorded on 4-12-1996 which is at page 45 of the paper book. Based on this, the counsel submits that the acquisition proceedings should not be initiated and completed in respect of respective shares held by the petitioners. 6) The learned Additional Government Pleader, Shri. K.B. Choudhari submits that nothing is placed on record as to whether the property held by the father of the petitioners was as a coparcener. In absence thereof, the only conclusion which could be reached is that deceased Ganesh Vishnu Somni was owner and possessor of the subject property as his self acquired property or Karta of the family. The petitioners' names were entered in the revenue record being legal representatives by way of survivorship. Therefore, the acquisition proceedings cannot be set aside on that ground. The learned Additional Government Pleader, after taking instructions from the authorities, submitted that, the land is required for the said purpose and so the petitioners’ contention for cancelling the acquisition proceedings deserves to be rejected. Therefore, the acquisition proceedings cannot be set aside on that ground. The learned Additional Government Pleader, after taking instructions from the authorities, submitted that, the land is required for the said purpose and so the petitioners’ contention for cancelling the acquisition proceedings deserves to be rejected. 7) LearnedSenior Counsel, Shri. Pravin Mandlik, has placed reliance on a reported judgment of learned Single Judge of this Court (M.F. Saldanha, J.) in Vijay Anandrao Kshirsagar v. State of Maharashtra, 1995(1) Mh.L.J. 42 in support of his contention. The learned Single Judge, while considering the provisions of the Maharashtra Resettlement of Project Displaced Persons Act 1976, observed that, the in the light of expressions - “family” as set out in Section 2(9) and “holding” as set out in Section 2(10) of the Act, 1976, it would be unreasonable to hold that several families who come within the umbrella of Hindu Undivided Family are to be treated as one Unit. The term “holding” has to be construed liberally and realistically. 8) We have perused the relevant provisions of the Act, 1976. The terms “family” and “holding” as occurring on section 2(9) and 2(10) of the Act 1976 read thus : “2. In this Act, unless the context requires otherwise,-- (9) “family”, in relation to a displaced person, means the family of the displaced person consisting of such person and his or her spouse, minor sons, unmarried daughters, minor brothers or sisters, father and mother and other members residing with him and dependent on him or their livelihood.” (10) “holding” means the total land held by a person as an occupant or tenant, or as both;” 9) In the facts of the case we find that there is no record placed before this Court in support of the petitioners’ contention that the petitioners’ names are recorded in the mutation record being coparceners. The petitioners have failed to produce any record showing that the subject property admeasuring 4 hectares 10 R out of Survey No.19 held by petitioners’ father was not self acquired property of deceased Ganesh, father of the petitioners or deceased Ganesh did not inherit the property as coparcener. We had granted adjournment to facilitate the petitioners to produce relevant record by framing two issues on 10th January 2012 which read thus : (i) Whether the petitioners are coparceners having share in the subject land ? We had granted adjournment to facilitate the petitioners to produce relevant record by framing two issues on 10th January 2012 which read thus : (i) Whether the petitioners are coparceners having share in the subject land ? (ii) Whether the father of the petitioners Ganesh Vishnu Somni held the land as a Karta of the family ? In spite of the same, the petitioners could not place any relevant record in support of their case. 10) The other submission made by learned Senior Counsel is in respect of application of the provisions of the Act, 1976 considering the definitions of family and holding as occurring in Section 2(9) and 2(10) of the said Act. In the present case, notification under section 11 of the Act, 1976 was published on 16-5-1978. 11) The State Legislature enacted law relating to rehabilitation of persons affected of certain areas in the State of Maharashtra and for matters connected therewith or incidental thereto, namely, the Maharashtra Projected affected Persons Rehabilitation Act 1986 (for short “the Act, 1986”). This Act received assent of the President on 30th September 1989 which was first published in the Maharashtra Government Gazette Part IV Extraordinary on 23rd October 1989. By virtue of Section 26 of the Act, 1986, on the commencement of the said Act, the Act, 1976 stood repealed. 12) In the facts of the present case and the provisions of the Act, 1976 we are of the view that the term “holding” has to be constructed in accordance with the object behind framing of the Act, 1976 by the Legislature. In the facts of the case, therefore, it would be unreasonable and against the provisions of Act of 1976 to hold that each of the petitioner was coparcener entitled to retain their respective share which was below 8 acres. The law takes cognizance of the unit as it exists at the relevant point of time. Where no partition in fact had taken place it is not warranted to hold that notional exercise be undergone for the purpose of computing individual share of coparcener. Allowing the plea of the petitioners would mean that in absence of there being any material on record we would be accepting notional partition and share of each of the petitioners and thereby granting benefit to them. Such exercise would be contrary to the intention of the Legislature. Allowing the plea of the petitioners would mean that in absence of there being any material on record we would be accepting notional partition and share of each of the petitioners and thereby granting benefit to them. Such exercise would be contrary to the intention of the Legislature. In accordance with the facts of the case the judgment cited in the case of Vijay Anandrao Kshirsagar, (cited supra) will not be helpful to the petitioners. 13) We may refer to the judgment of the Apex Court in the case of SudamShankar Kshirsagar v. State of Maharashtra, 2010 AIR SCW 5875. Paragraphs 15, 16 and 17 read thus: “15. In the present case, the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 is not applicable and what is applicable is the Maharashtra Project Affected Persons Rehabilitation Act, 1986. The expression “person” is define din the Act of 1961 and expression “holding” is defined in the Act of 1986. The Legislature while enacting the Act of 1986 incorporated the definition of expression “holding” under Section 2(8) and was fully conscious of the fact that there is a definition of expression “person” in the Act of 1961, but despite the said fact, it did not incorporate the said definition of expression “person” given in the Act of 1961. Since the expression “person” is not define din the Act of 1986, in order to ascertain the definition of the same we necessarily have to refer to the provisions of the Bombay General Clauses Act, 1904. 16. Section 3(35) of the Bombay General Clauses Act, 1904 defines persons to “include any company or association or body of individuals, whether incorporated or not. In that event, if we adopt the position and standard as enunciated in the aforementioned legislation, it has to be held that the expression “person” would include the body of individuals, meaning thereby, that the Hindu Joint Family is a body of individuals and is covered under the expression “person” mentioned in Section 2(8) of the Act of 1986. 17. Once the Hindu Joint Family is held to be a person, the limit prescribed in Schedule-II has to be considered in the light of the holding of Hindu Joint Family and not holding of individual coparceners constituting a Hindu Joint Family. 17. Once the Hindu Joint Family is held to be a person, the limit prescribed in Schedule-II has to be considered in the light of the holding of Hindu Joint Family and not holding of individual coparceners constituting a Hindu Joint Family. That being the position, we uphold the findings and the conclusions arrived at by the Bombay High Court.” 14) For the reasons recorded above, we are of the view that the challenge raised by the petitioners against the acquisition proceedings initiated under the Act of 1976 and the Land Acquisition Act 1894 cannot sustain. The petition is devoid of merits. It is dismissed. Interim relief stands vacated. Rule discharged.