Shivgonda Balgonda Patil and others vs Director of Resettlement and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 76

IN THE HIGH COURT OF BOMBAY
Sujata Manohar P.S. Patankar, JJ.
Shivgonda Balgonda Patil and others .... Petitioners.
Versus
Director of Resettlement and others.... Respondents.
Writ Petition No. 3675 of 1990, decided on 7/8-2-1991.
Advocates appeared :
S.S. Pandit, for the petitioners.
V.S. Gokhale, A.G.P., for the respondents.

Headnote:Article 226 - Acquisition of land of petitioner -Delay in taking steps to challenge notification under Section 15 or to challenge acquisition proceedings in respect of lands of petitioner under Land Acquisition Act-Writ petition filed only after change was effected in Khata of petitioners - Petition liable to be dismissed.
       HINDU LAW
       Joint family-Family arrangement-Mutation entry-Setting not names of heirs of deceased Khatedar and shares in lands in regard for cultivation by sons-Such entry recording family arrangement and not partition between sons.
       See Land Acquisition Act, 1894, Section 6.
       HINDU SUCCESSION ACT, 1956,
       Section 6-Hindu Joint Family-Death of corporcener-Deceased survived by sons daughters etc.-No automatic partition in joint family.
       Section 5-A Partition between petitioners- No evidence to that before court-No such contention raised at stage of enquiry under Section 5-A-No material to show that each of petitioner was having independent holding to be taken into account for purpose of Act.
       Section 6-Hindu Law-Joint family property-Death of coparcener- Whether partition automatic amongst male heirs-Right of surviving female heir left by deceased.
       On the death of a male Hindu who is a co-parcener to 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 Section 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.
       Section 6-Public purpose of resettling displaced persons of one project-Acquisition of Land for-Land can be allotted to displaced persons of another project-Acquisition not bad in law.
       Section 6 (1), First proviso-Relevant date for considering time limit for making declaration-Is the date on which declaration made and not date on which declaration published.
       MAHARASHTRA RESETTLEMENT OF PROJECT DISPLACED PERSONS ACT 1976
       Section 2(7), 10 and 13 (3)- Settlement of displaced persons-Land acquired from benefitted zone of project concerned-Whether such land can be acquired for such purpose from another project.
       Section 13 (3) permits even lands from other unbenefitted areas to be acquired for such resettlement. No reason to hold that lands of benefitted zone of another project can not be so acquired.
       Section 13 (3) and 10-Resettlement of displaced persons-Acquisition of land for-Act confined only to land acquired from benefitted zone of project concerned-Even land from other benefitted areas of another project can be acquired.

       Section 15-Declaration under Area of zone under benefitted zone of project not set out- It unnecessarily mentions area to be acquired against each of villages- Whether declaration not in accordance with law- (No)
       In the instant case, the first contention raised by the petitioner relates to the declaration made under Section 15 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 which was made on 29th May, 1982 i.e. before the Amendment and Validation Act. According to the petitioners, the declaration under Section 15 is not in accordance with law because in the declaration, the area of land under the benefitted zone of the project is not set out. This submission is factually incorrect because the declaration does set out in extensor the name of 104 villages which are to constitute the benefitted zone of the Project although the actual area occupied by these villages is not stated. The petitioners have further submitted that the declaration under Section 15 in question unnecessarily mentions the area which is to be acquired against each of these villages when the section does not require this area to be mentioned. It is difficult to understand how mentioning of any additional information in the declaration makes the declaration bad in law. Any way it is not open to challenge the said notification after the enacting of the Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation) Act, 1985.
       Maharashtra Resettlement of Project Displaced Persons Act, 1976-Section 16-Schedule A-Holding-Determination Land Dot used for agricultural purposes-Whether not to be excluded (Yes).
       Section 2 (1) defines a holding to mean "the total land held by a person as an occupant or tenants or as both." This definition does not restrict a holding only to agricultural land. It refers to total land. Similarly, Schedule A, Part II which prescribes the size of the holding of a land holder also does not refer only to agricultural land. The first column is titled "size of the holding" i. e. size of the total land. Section 16 subsection (1) enables the State Government to enter into an agreement with any" person for the purchase or exchange of any land required for carrying out the purposes of the Act. Under sub-section (2) the State Government can compulsorily acquire any land under the Land Acquisition Act, not only agricultural land. In fact under sub-section (3) it is provided that the State Government may also acquire lands included in a goathan in the affected zone. Under sub-section (4) for the purpose of resettling displaced persons on land the State Government may acquire land from holdings in the benefitted zone. There is nothing in these provisions which restricts a holding of a person only to agricultural land.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---This writ petition and a number of other petitions, which are before us, are from persons in the benefited zone of the Warana Irrigation Project whose lands are sought to b acquired for the rehabilitation of persons displaced by the project. In all these writ petitions, the virus of Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation ) Act, 1985 is challenged. A number of writ petition which challenged the virus of the said Amendment and Validation Act, 1985 on the same grounds as are urged in these petitions were considered by a Division Bench of this Court in the case of (Dhulgonda Dada Patil v. Special Land Acquisition Officer No. 15)1, reported in A.I.R. 1989 Bom. 286. The Division Bench has upheld the validity of the said Amendment and Validation Act of 1985. The Division Bench has observed in this judgment in para 10 that under sub-section (1) of section 4 of the Amendment and Validation Act, the final declarations made under section 15(3) of the principal Act before the commencement of the said Amendment and Validation Act, are validated and cured. The said Validation covers cases where declarations under section 15 have been made but they are not in accordance with the requirements of the unamended sections 14 and 15 of the said Act. The Division Bench has emphasised the language of the latter part of section 4(1) of the Amendment Act, "no such declaration shall be called in question in any Court of law merely on the ground that the provisions of section 13 and 14 of the principal Act have not been complied with, in part or in whole, or that an opportunity of being heard was not given to the persons affected by such declaration or that no further enquire was made by the State Government, before making such declaration", in support of its conclusion.

2. In the present case, the first contention raised by the petitioners relates to the declaration made under section 15 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 which was made on 29th May, 1982 i.e., before the Amendment and Validation Act. According to the petitioners, the declaration under section 15 is not in accordance with law because in the declaration, the area of land under the benefitted zone of the Project is not set out. This submission is factually incorrect because the declaration does set out in extenso the names of 104 villages which are to constitute the benefitted zone of the Project although the actual area occupied by these villages is not stated. The petitioners have further submitted that the declaration under section 15 in question unnecessarily mentions the area which is to be acquired against each of these villages when the section does not require this area to be mentioned. It is difficult to understand how mentioning of any additional information in the declaration makes the declaration bad in law. Any way in view of the judgment of the Division Bench in the case of Dhulgonda Dada Patil (supra) and the reasons set out therein it is not open to the petitioners to challenge the said notification after the enacting of Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation ) Act, 1985.

3. The next submission made by the petitioners is to the effect that if one looks at the said notification under section 15 of the said Act, the area which is to be acquired from the benefitted zone is 3114 Hectares and 39 areas. As against this, the area of the affected zone is only 1581 Hectares and 1 are. The petitioners, therefore, contend that the land which is sought to be acquired is far in excess of the requirements; and on that ground also the petitioners are entitled to relief. In Writ Petition No. 1247 of 1985 i.e., in Dhulgonda D. Patil's case (supra) the respondents had filed an affidavit in which the respondents have set out their practical experience relating to such acquisitions. Because of the slab system, which is prescribed under the s

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