JUDGMENT - Dr. (Mrs.) P.D. UPASANI, J. :---By this petition, the petitioners are challenging acquisition proceedings of their land bearing Survey No. 120/2(p), admeasuring 75 acres in village Ashta, District Sangli.

2.It is submitted by the petitioners that their father, one Abdul Mhaiter, who was the owner of the above referred land, died on 9th October, 1970, leaving behind him three sons as his heirs, and that, thereafter, the entire land was divided into three shares. It is contended that each co-owner is cultivating his land which came to his share, and that, the total holding of the petitioners is below the ceiling of 8 acres.

3.It is also the grievance of the petitioners that though their father had already expired, the petitioners who were the sons of the said deceased Abdul Mhaiter, were never served with any notice and therefore, they could not file any objections under section 5-A to any of the Notification issued by the respondents under section 4 and under section 6 of the Land Acquisition Act, 1894. It is submitted by them that they learnt about the acquisition proceedings, only when notice dated 13th June, 1989 was issued by respondent No. 4 (Special Land Acquisition Officer (9), Sangli) calling upon the petitioners to attend his office to collect the amount of compensation, and also when they were served upon with the notice dated 23-6-1989 calling upon them to be present at the site, as on the said date, actual possession of the said land under acquisition was to take place. It is therefore prayed that the Notification issued by the respondents under sections 4 and 6 of the Land Acquisition Act, 1894, so also, the Notification issued under section 11(1) and section 14(1) and section 15(1) of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 be quashed.

4.We have heard Mr. Vaze, appearing for the petitioners, so also, Mr. Gokhale, Additional Government Pleader, appearing for respondents. We have also perused the proceedings.

5.In the affidavit filed by the respondents, there is no denial by the respondents that the petitioners were not served with any of the Notice, required to be served upon them under the provisions of the Land Acquisition Act. It is therefore evident that the petitioners were deprived of filing objections as per the provisions of section 5-A of the Land Acquisition Act, 1894. Since there is no compliance by respondents of this mandatory provision, the grievance made by the petitioners about non-serving of any Notice upon them after the death of their father, appears to be well-founded. The proceedings also nowhere reveal that the petitioners have at any point of time, participated in the proceedings. Therefore, on this count, the acquisition has to be held as bad-in-law.

6.As far as the second point canvassed by advocate for the petitioners that the total holdings of the petitioners were not above the prescribed ceiling of 8 acres, it must be stated that the petitioners admittedly are Muslims, and admittedly, there is no system of joint family amongst Muslim Community. The position is now well settled. The law is very clear on this point that as per the provisions of Mohammedan Law, the heirs of the deceased Mohammedan hold the property as tenants-in-common, each having specified share therein. There is a Judgment of the Division Bench on this very point, which has clarified this legal position (Writ Petition No. 1510/86, decided on 31st August, 1993)1, Coram : Dr. B.P. Saraf and Mr. S.M. Jhunjhunuwala, JJ.

7.In view of this legal position, we hold that the holding of each petitioner was below the ceiling of 8 acres. The petition thus succeeds and rule is made absolute in terms of prayers (a) and (e). No costs.

Petition succeeded.

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