Allowed

Mahadu Dagdu Kale and Others v. State of Maharastghra and Others

Bombay HC2 Sept 2004WP/2527/1997

Case brief

AI extract

What is this about?

Petition challenging acquisition proceedings under the Maharashtra Resettlement Act and Land Acquisition Act. Court held that since the petitioner's share post-partition was below the statutory minimum slab, the land could not be acquired. Acquisition proceedings quashed; possession protected.

What did the court decide?

Acquisition proceedings quashed and set aside; prayer clause (a) of the petition allowed; petition made absolute.

Mahadu Dagdu Kale and Others Vs State of Maharastghra and… — Landlord and Tenant | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE CIVIL JURISDICTION

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 WRIT PETITION NO.2527 OF 1997

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 Mahadu Dagdu Kale and another .. Petitioners

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 Versus

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 State of Maharashtra and Ors. .. Respondents

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 Mr.P.S.Dani for the petitioners

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 Mr.C.R.Sonawane, A.G.P. for respondent no.1 to 3

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 CORAM: A.P.SHAH &
 S.U.KAMDAR, JJ

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 DATED: 2ND SEPTEMBER, 2004

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 ORAL JUDGMENT (PER S.U.KAMDAR, J.):

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 1. In the present petition, the petitioner is

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 challenging the acquisition proceedings initiated
 under the provisions of the Maharashtra
 Resettlement of Project Displaced Persons Act, 1976
 r/w Land Acquistion Act, 1894. Some of the facts
 are as under:

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 2. The father of the petitioner was original owner
 in respect of various plots of land. It is the

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 case of the petitioners that some time in or about
 October 1968 the partition was effected which was
 reduced in writing and consequent upon the said
 partition the land admeasuring about 1 Hectare and
 23 Ares came to the share of the petitioner out of
 Gat No.87/1 + 2. The father of the petitioner
 expired on 7th September 1979. After the death of
 the father the acquisition proceedings commenced by
 a Notification dated 28th November, 1988 under
 section 4 of the Land Acquisition Act.
 Notification under section 6 of the said Act came
 to be issued sometime in or about 1989. It is the
 case of the petitioner that the said notifications
 were issued in the name of the deceased father.
 The said acquisition proceedings was thereafter
 continued and ultimately concluded by passing an
 award in the name of the deceased father. It is
 the case of the petitioner that he did not receive
 any notice under section 5A of the Land Acquisition
 Act and thus he was denied opportunity of raising
 objections to the said acquisition proceedings.

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 3. Alternatively the case of the petitioner is

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 that on 6th October 1968 there was a partition of

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 the properties and the property was divided. On
 such division the holding of the petitioner was
 only 1 Hectare and 23 Ares which was less than the
 prescribed slab of 3 Hectares and 23.75 Ares under
 the Schedule A Part II of the Maharashtra
 Resettlement of Project Displaced Persons Act, 1976
 and therefore the said land could not have been the
 subject matter of acquistion.

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 4. The respondents have filed a reply and resisted
 the present petition. It has been interalia
 contended by the respondents that the proceedings
 were continued and concluded in the name of the
 deceased father because his name remained on the
 revenue record even after his death. It has been
 further contended that in so far as s.5A enquiry is
 concerned, the same was conducted in January 1989
 and in the said enquiry the petitioner has filed
 his objection and the same are rejected.

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 5. In the light of the averments made in the
 affidavit in reply, the contention of the

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 petitioner that the petitioner was not heard in
 s.5A enquiry cannot be accepted and the same is
 required to be rejected. In so far as the case of
 the petitioner is concerned that the land is not
 liable for acquisition u.s.11 of the said Act read
 with s.4 of the Land Acquisition Act because it is
 below the minimum prescribed slab. We are of the
 opinion that the said contention has merits and
 deserves to be accepted. Once there is a partition
 and the land of the petitioner’s share is below the
 limit prescribed under Schedule ’A’ part II of the
 said Resettlement Act, 1976 then the same cannot be
 acquired. Therefore, the said acquisition
 proceedings are liable to be quashed and set aside.

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 6. The land is still in possession of the
 petitioner herein. There has been an interim order
 in the present petition by which the possession of
 the petition has been protected.

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 7. In view thereto we are of the opinion that the
 present petition is required to be allowed.
 Accordingly we allow the present petition in terms

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 of prayer clause (a) of the petition. Petition is
 made absolute. However, there shall be no order as

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 to costs.

Mahadu Dagdu Kale and Others v. State of Maharastghra and Others

Case brief

What is this about?

What did the court decide?

Mahadu Dagdu Kale and Others v. State of Maharastghra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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