MAHADEO RAMGONDA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners seek to challenge the acquisition of their land for the purposes of resettlement of Dudhaganga Project affected persons. The petitioners have also prayed for quashing and setting side of the notice under section 4, dated 9th August, 1990 and section 6 notification of the Land Acquisition Act, 1894 (for short, "act of 1894"), as published in the newspaper on 29th November, 1990 qua their land Gat No. 1551 admeasuring 81 ares, situate at village Abdul-Late, taluka Shirol, District Kolhapur.

(2.) NOW, before we look at the relevant provisions and consider the challenge made, it would be perhaps better just to state briefly what credentials of the petitioners are and what is the ground for this petition. The petitioners are the heirs and legal representatives of the original landlords Ramgonda Patil. According to the petitioners, their total holding is within the permissible limit and not liable to be acquired under the provisions of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short "act of 1976" ). Though the petitioners filed their objections under section 5-A of the Act of 1894, against the proposed acquisition of the said land and raised several objections, they have restricted their challenge in the present writ petition only on the ground that the mortgaged land in their possession cannot be clubbed with their other lands, while determining the total holding of the petitioners for the purposes of the Act of 1976. The petitioners have contended that one Shripat Rayande and Gopal Rayande had mortgaged their lands admeasuring 2 hectares and 66 ares to the petitioners father Ramgonda Patil and put him in possession thereof as a mortgagee. In 1968, Civil Suit No. 6 of 1968 was filed by the said Rayande for redemption of the mortgage and possession of the land Gat Nos. 1342, 1353 and 1368 admeasuring 2 hectares and 66 ares (for short, "the suits lands" ). The suit was decreed in 1968 itself and the first appeal carried by the petitioners in this Court, bearing First Appeal No. 540 of 1969, was dismissed and the decree was confirmed. Feeling aggrieved by the judgment and order passed in the first appeal, the petitioners preferred Civil Appeal No. 750 of 1973 before the Apex Court. The Apex Court dismissed the said appeal by its judgment and order dated 22nd April, 1988. It appears that the said Rayande, thereafter, obtained, possession of the suit land on 3rd January, 1989 in the execution proceedings, being Special Darkhast proceeding No. 42 of 1973. Further, it is the case of the petitioner that Regular Civil Suit No. 137 of 1978 was filed for partition and separate possession and it was decreed on 16th December, 1978 and petitioner No. 2 was given one hectare and 69 ares and petitioner No. 2 was allotted 2 hectares and 93 ares of the lands and in view thereof, no land of either of the petitioners is liable to be acquired under the provisions of the Act of 1976.

(3.) THE argument advanced by Mr. Ingale, learned Counsel for the petitioners is of two-fold. Firstly, that the suit lands were wrongly included in the total holding of the petitioners, resultantly, their total holding has crossed the higher limit prescribed under the Act of 1976. The higher limit fixed in the present petition under Clause (b) of Part II of Schedule A, of the Act of 1976, was 3 hectares and 23. 75 ares, i. e. 8 acres. According to the petitioners, the mortgage land in their occupation, is not covered within the definition of "holding" under section 2 (10) of the Act of 1976 and, therefore, they cannot be termed as "occupants" of the suit lands within the meaning thereof. Secondly, he contended that restoration of possession of the suit lands to the original landlord in the Darkhast proceedings is not hit by section 12 of the Act of 1976, and, according to him, as on the date of issuance of the notification under section 4 of the Act of 1894, the petitioners had already surrendered the suit lands in the execution proceedings on 3rd January, 1989 and, therefore, could not have been clubbed with their lands. Mr. Nargolkar, learned Assistant Government Pleader for the respondents, in opposition, contended that the suit lands in possession of the petitioners fall within the meaning of definition "holding" and it was rightly included in their holding. In support of this contention he invited our attention to section 2 (15) of the Act of 1976, which provides that the words and expression used in the Act of 1976, but not defined, shall have the meanings respectively assigned to them in the Maharashtra Land Revenue Code, 1966 (for short, "code" ). Our attention was, thereafter, further invited to the definition of "occupant" under section 2 (23) of the Code and he contended that even the mortgagee in possession is also covered within the meaning of "holding" defined under section 2 (10) of the Act of 1976. In view thereof, Mr. Nargolkar submitted that the holding of the petitioners exceeds the limit prescribed under Clause (b) of Part II of Schedule A of the Act of 1976 and is, therefore, liable to be acquired for the resettlement of project displaced persons.