Possession must remain with the landowner for an application under Section 48(1) of the Land Acquisition Act to be maintainable; erroneous inclusion of mortgaged land invalidates acquisition.

JUDGMENT :

G. S. Kulkarni, J.

1. This petition under Article 226 of the Constitution of India was filed on 19 December, 2008. It was admitted by this Court by an order dated 22 April, 2013. The primary challenge is to an order dated 3 December, 2008 passed by the Divisional Commissioner (Rehabilitation), Pune Division, Pune rejecting the petitioner’s application under Section 48(1) of the Land Acquisition Act, 1848 (for short “the 1848 Act”) refusing to withdraw the petitioner’s land for acquisition as also to the legality of the acquisition of the petitioner’s land.

2. At the outset, the prayers as made in the petition are required to be noted which read thus:-

“a. This Hon’ble Court may be pleased to call for record and proceedings of acquisition of Gut No. 903/2 and Gut No. 131/1B+2B43C situated as Mauje Mardwadi and also record and proceedings of Rehab/KV—3/Complaint Appln SR/01 /2004.

b. After examining legality, propriety and validity of the decision to acquire Gut No. 903/2 and Gut No. 131/1B+2B+3C situated as Mauje Mardwadi, this Hon’ble Court may be pleased to quash and set aside the said decision and declare that said land of the Petitioner is liable to be acquired and further this hon’ble Court may be pleased to set aside and quash the impugned order dated 3.12.2008 passed by the Respondent No. 2 in Rehab/KV—3/ Complaint Appln SR/01/2004, c. In the alternative, this Hon’ble Court may be pleased to direct the respondents to acquire the alternative land being Gut No. 124/1B+2B+3C admeasuring 88 R instead of Gut No.903/2 and Gut No. 131/1B+2B+3C situated as Mauje Mardwadi;

d. This Hon’ble Court may be pleased to stay effect, implementation and operation of the Judgement and order dated 3.12.2008 passed by the Respondent No.2 in Rehab/KV—3/ComplaintAppinSR/01/2004,

e. Ex-parte ad-interim/interim relief in terms of prayer clause (d) be granted.”

3. The relevant facts are:

On 13 May 1977, the State Government published a notification under Section 11(1) of the Resettlement Act setting out 13 May 1977 to be the notified date. For the area of Village Ashta, a slab of 8 acres came to be fixed for acquisition of the different lands. In other words, the ceiling of 8 acres was fixed, thus, land holding beyond such ceiling limit was to be acquired for the public purpose of rehabilitation of the project affected persons, who were displaced persons from the ‘Warna Dam project.’

4. On 13 October 1983, the State Government issued a notification under Section 4 of the Land Acquisition Act, 1894 (for short, “LA Act”) read with the provisions of the Resettlement Act. On 21 August 1986, a corrigendum was issued to the notification under Section 4 and thereafter on 08 October 1986, notification under Section 6 of the LA Act was issued. Land of the petitioner and subject matter of acquisition is described to be Gat No.903/2 and Gat No. 131/1B+2B+ 1C/2 admeasuring 19 R situated at Mauje Mardawadi. On 29 December 1988, an award acquiring the land was published qua the petitioner’s land.

5. It is the case of the petitioner that the petitioner’s father Shantinath Chougule was Karta of the petitioner’s joint family which comprised of the petitioner (Ashok) and his brother Bahubali. On the notified date i.e. 13 May 1977, the holding of the joint family of the petitioner was 8 acres and 5 gunthas only, which is stated to be clear from the revenue extracts being the account, of petitioner’s holding. Accordingly, only 5 gunthas land was in excess of the ceiling limit. It is however, submitted that the State considered the petitioner’s holding to be more than 8 acres and 5 gunthas for the reason that one Vasant Dharma Wadkar had mortgaged his land with the petitioner’s father Shantinath Chaugule, being land Revisional Survey No. 1077/2 admeasuring 3 acres and 16 gunthas. It is contended that although such land was mortgaged, Shantinath was never put in possession of the said land and therefore, Revisional Survey No. 1077/2 belonging to Vasant Wadkar (for sh