Dismissed

Kaluram Hawaba Potale and Otehrs v. the State of Maharasthsra

Bombay HC18 Aug 2005WP/5740/1997

Case brief

AI extract

What is this about?

Two writ petitions challenged land acquisition notifications in Maharashtra on the ground that petitioners held less than 8 acres individually. The Court held that mere family arrangements or revenue records do not establish a lawful partition required to prove individual holdings below the threshold.

What did the court decide?

Petitions dismissed with no order as to costs. Rule discharged.

Kaluram Hawaba Potale and Otehrs Vs the State of Maharasthsra — Land Acquisition | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO.5740 OF 1997

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Shri Kaluram Hawaba Potale, Age about 52 years, Occupation-Agriculturist

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Shri Shahaji Hawaba Potale, Age about 48 years, Occup.Agril.

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Shri Shivaji Hawaba Potale, Age about 46 years, Occup.Agril.

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Shri Maruti Hawaba Potale, Age about 42 years, Occup.Agril. .. Petitioners

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All residing at Village-Pimpalgaon, Taluka-Khed, Dist.Pune.

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v/s.

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The State of Maharashtra (Summons to be served upon the Collector, Pune Collectorate, Pune-1)

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The Special Land Acquisition Officer No.24, Collector Office Compound, Pune-1.

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The District Resettlement Officer, Pune Collector, Pune Collector Office Compound.

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Smt.Vithabai Hawaba Potale, Age about 65 years, Occup.Agril.

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Sou.Shalubai Kisan Mohite, Age about 37 Years, Occupation-Agriculturist, (Respondent Nos.4,5 & 6 R/o. Village- Pimpalgaon, Taluka Khed, Dist.Pune.

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.. Respondents

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Names of Respondent Nos.4 & 5 have been deleted as per order of the Hon’ble Court passed on 19.2.98.

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Mr.S.V.Pitre for the petitioners.

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Mr.V.S.Gokhale, A.G.P. for the respondent Nos.1 to 3.

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ALONGWITH

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WRIT PETITION NO.5307 OF 1998

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Devram Laxman Karale,

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Dnyaneshwar Laxman Karale,

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Eknath Laxman Karale,

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Dattatraya Laxman Karale,

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.. Petitioners

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All residing at Pimpalgaon, Taluka-Khed, Dist.Pune. No.3 for himself and power of attorney holder of petitioner Nos.1,2 and 4.

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v/s.

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The State of Maharashtra (Summons to be served upon the Collector, Pune Collectorate, Pune-1)

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The Special Land Acquisition Officer No.24, Collector Office Compound, Pune-1.

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The District Resettlement Officer, Pune Collector, Pune Collector Office Compound.

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Sou.Hausabai Umaji Pachpute

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Sou.Indubai Tukaram Mohite

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Sou.Janabai Bajaba Mangare

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Sou.Subhadrabai Tukaram Sakore

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Sou.Leelabai Bhausaheb Shivle .. Respondents

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(Respondent Nos.4 to 8 resident of village Pimpalgaon, Tal.Khed, District-Pune)

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Mr.V.S.Gokhale, A.G.P. for the respondent Nos.1 to 3.

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CORAM : R.M.S.KHANDEPARKAR AND V.M.KANADE, JJ.

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DATED : 18th August, 2005

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ORAL JUDGMENT (Per R.M.S.Khandeparkar, J.)

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Since common	questions o	f law	and	facts	arise in

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both these petitions, they were heard together and

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are being disposed of by this common judgment.

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2. In both	these petitions,	the	petitione	rs s	eek	to
challenge the	notification dated	7th	D	ecember,		1988
issued under	section 4(1) of	the	Land		Ac	quisition
Act and notification	dated 11th	Janu	ary,	1990		issued
under section 6	of the said	Act	being	bad-in	-law	on
the ground that	the respondents	c	ould	not		have
proceeded to	acquire the land	in	question	for		the
resettlement of	the project	affected		persons		in
exercise of the	powers un	der	the		Ma	harashtra
Resettlement Act,	1976 since	the	indi	vidual		holding

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of each of the petitioners was less than 8 acres of

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land.

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3.	The fact that the	propertie	s sought	to	be
acquired	belong to the	petitio	ners is	not	in
dispute.	It is also not	in	dispute	that	the
petitioners	do not have	any	registered		partition
deed	in respect of	the	respective		properties
allotting	separate shares to	the	petitioners	in	such
properties	with physical divi	sion	thereof in		loco.
The	only grievance which is	sought	to be	made	on
behalf	of the petitioners is	that	there	has	been
written	partition amongst	the	parties		allotting
separate	share in the	respective	properties	to	each

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of	the	peti	tioners	and	the	same dis	closes that	the
individual		holdi	ng	of	each	of the	petitioners	was
less	than	8	acres	of	land	and	therefore,	considering
the	provi	sions	of	the	law in	force	at the	relevant

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time, the land of the petitioners could not have been subjected to acquisition proceedings.

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4. There is	no dispute as regards the proposition
of law that in	case of individual holding being less
than 8 acres	of land, it could not have been
subjected to	acquisition for the purpose of
distribution thereof	to the project affected persons
in terms of	the provisions of the Maharashtra
Project Affected	Persons Rehabilitation Act. The
point for	consideration, therefore, which arises in
both these matters	is whether the family arrangement
entered into be	tween the parties agreeing for
separate share in	the property to each of the
petitioners or their	predecessors, can it be said to
be valid and	lawful partition for the purpose of
consideration as	to whether each of the petitioners
individually and	independently held less than 8
acres of land a	nd that, therefore, it could not have
been subjected	to the acquisition proceedings? The
learned advocate	for the petitioners in that regard
has sought to	rely upon the unreported decision of
this court in	the matter of Shri Dinkar Narayan
Dhamal and other	s v. The State of Maharashtra and
others in writ	petition No.4140 of 2000 delivered on

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14th	August,	2000	and	has	submi	tted that	takin	g into
consider	ation	the	rev	enue	records,	it	could	have
been	well	asce	rtained	by	the	competent		authorities
that	the	individu	al	holding	of	each	of	the

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petitioners was less than 8 acres of land and

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therefore, their land could not have been acquired.

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5.	As reg	ards the point relating to	u	nregistered
partition	deed sought	to be raised in the	matte	r, in
fact,	the same	is well settled in view	of	the
decision	of the F	ull Bench of this court	in	Ganpat
Balwant	Pawar v.	Special Land Acquisiti	on	Officer
No.7,	reported in	AIR 1984 Bombay 382	and	further
explained	by the	Division Bench in		Shivgonda
Balgonda	Patil and	others v. The	Director	of
Resettlement	and other	s, reported in AIR	1992	Bombay
72.	In Ganpat	Balwant Pawar’s case, the	Full	Bench
did	not find	favour with the contention	of	the
petitioners	before the	Full Bench that there	was	any
partition	between	the members of the j	oint	family
concerned	or that	each person must be	consider	ed as
having	a separate	holding for the purpose	of	the
Maharashtra	Resettle	ment of Project		Displaced
Persons	Act, 1976	and held that, "there was	only	a
single	khata of	all the petitioners	together	though
against	the name	of each petitioner,	it	was
mentioned	that he	was holding a 1/4th share	in	the
lands	in the sam	e khata." and there was	no	evidence
of	any partition	as such. In that case,	the	Full

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Bench	was	sought	to	be	persuaded	that	although	the
total	holding	of	the		joint	family	was	large,
subsequently		each	of	the	petitio	ners	therein	was
allotted	un	der fa	mily	arrang	ement	only	a portion	of
the	land	and	as	a	result,	each	person	was
cultivating		his	la	nd	separately	and	indepe	ndently
and	therefore,	oug	ht	to	have	been	considered	as
having an ind	ividual and	separate hold	ing. Ho	wever,

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the claim of the petitioner therein was rejected.

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6.	In Shivgonda Balgonda’s case, it	was	the
contention	of the petitioner therein that	on	the
death	of Balgonda in 1958, there was a	partit	ion of
land	between the first petitioner and his		brothers
and	in that connection reliance was sought	to	be
placed	on mutation entry made on 7.7.78	in	the
revenue	records in relation to the property.		The
said	mutation entry disclosed that	on	the
application	of the heirs of the Khatedar		Balgaonda
Patil,	the names of the persons which	were	recorded
therein	were specified as the heirs of	the	deceased
Balgaonda.	The entry further set out the	sh	ares in
which	the various lands were being cultivated	b	y the
sons	only. With reference to that, th	e	Division
Bench	observed that, "We fail to see	how	this
mutation	entry can be said to record any		partition
effected	between the sons of the deceased		Balgonda
Patil.	At the highest the entry in	the	Khata
records	that the family arrangement under	whic	h the

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persons	men	tioned		there	in	were	havi	ng	different
shares	in	the	land	un	der cultiv	ation	as se	t out	in
the	khata."	It	was	fu	rther rul	ed tha	t, "It	is	well
settled	that	on	the	death	of a	male	Hindu	who is	a
co-parcener		in	a	joint	family	there	is	no	automatic
partition	of		his	shar	e in	the		joint	family
properties	amo	ngst	his		male he	irs.	But	if	the
deceased	has		left	him	surviving	a	female	heir	as
specified	in		section		6, a	notion	al	partition	is
deemed	to	ha	ve	taken	place	in	the	joint	family
property	at		the	time	of the	death	of	the	deceased
for	the	pu	rpose	of	ascertaining	the	share	of	the

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deceased in the joint family properties which comes

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to the share of the female heirs."

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7.	The	law	is very	clear	to	t	he effect that	the
family	arran	gement	describing		the		shares of	the
members	of	the	family	in	a	p	roperty cannot	ipso
facto	amount	to	lawful	partition		of	the property	nor
that	by	itself	can lead	to	th	e	conclusion that	each
of	the	member	of the	family	are		holding the	land
separately		in ter	ms of	the	sha	re	s described in	such
family	arran	gement.	Whe	ther	a	p	roperty which	is
owned	by	different	persons	is	in		fact partitioned	by
metes	and	bou	nds and		is		accordingly	enjoyed
separately	by	each	of the	o	wner		thereof according	to
his	share	has	to be	ascertai	ned		based on a	lawful
partition		executed	between	the	pe	rs	ons owning	such
property.		A	lawful	partition		ha	s necessarily to	be

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a duly	re	gistered	partit	ion	in	relation	to immovable
property.		In	the	absence	of	such	partition, mere
oral or	wr	itten	arrange	ment	entered	into	between the
parties	would	not	be	a	conclus	ive	evidence regarding
such	partition		for	the	purpo	se	of ascertaining
whether	each		individual	owns	the	land	less than 8
acres,	while	deal	ing	with	the	mat	ter for the
acquisition		of	land	for	the	purpose	of distribution

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thereof under the Maharashtra Project Affected

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Persons Rehabilitation Act, 1986.

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8.	It	is also	well settled	that rev	enue reco	rds do
not	create	any	title in favour	of the	person	in
whose	favour	revenue	records stands	in	relation	to a
particular	pr	operty.	The	revenue	records	are
essentially		to id	entify the	liability	regarding	the
revenue	to the	Gover	nment. Being	so,	merely	because
different	shares	are	recorded in	the	revenue	records
or	in the	mutation	entry in such	records	which	may
reveal	about	the	obligation of	each	such	individual
to	pay the	revenue	to the Gov	ernment	in	accordance
with	such	shares,	however, such	entry	by	itself
would	not	lead to	the conclusion	that	the	property

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is being lawfully partitioned amongst such persons

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whose names figure in such records.

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9.	The atte	ntion		was	sought	to	be drawn	to	the
reference	made	by		the	Division		Bench	in	Dinkar
Narayan	Dhamal’s		case	to	the	order	passed	by	the

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Apex	Court pursuant	to the circular dated 20th	June,
1998.	At the	outset it is to be noted that we	have
also	perused the or	der passed by the Apex Court.	In
the	said order	, the Apex Court after referring	to
the	said circular	had directed the Commissioner	of
Pune	to examine	the individual case afresh	bearing
in	mind the	said circular. The said	direction,
obviously	, was	given in the peculiar facts of	the
case	without laying	down any law as such in	relation
to t	he said circul	ar. Besides, it was nobody’s	case
before	the Apex	Court that the individual	holdings
of	the persons	before the Apex Court were	pursuant
to	any family	arrangement as such. It is	well
settled	law that	the observations made in a	judgment
passed	either by the	Apex Court or by the High	Court
are	not to	be understood independently and	ignoring
the	context in	which the observations are	made.
Merely	because in	a peculiar set of facts	a
direction	is issued	for reconsideration of the	cases
bearing	in mind	the circular dated 20th June,	1998
that	by itself	cannot enure to the benefit of	the
petitioner	s or the	persons similarly situated to	get
similar	direction	in their case particularly	when
the	petitioners	are unable to disclose that	their
claim	regarding	the individual independent	land
holding b establishe	eing less than 8 acres is, d by proper lawful docum	prima facie, entary evidence.

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With utmost respect we are unable to

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persuade

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ourselves	to	take the view	similar	to	one taken	by
the	Division	Bench in	Dinkar	Naray	an Dhamal’s	case,
more	particularl	y, in view	of	the	decision of	the
Full	Bench	in Ganpat Ba	lwant	Pawar’s	case	followed
by the Divis	ion Bench in S	hivgonda Balgonda Patil’s
case, which d	ecisions are b	inding upon this court.
11.	For	the reasons	stated	above,	the	petitions
fail and, ther	efore, the sam	e are dismissed with no
order as to co	sts. Rule is di	scharged.

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(R.M.S.KHANDEPARKAR, J.)

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(V.M.KANADE, J.)

Kaluram Hawaba Potale and Otehrs v. the State of Maharasthsra

Case brief

What is this about?

What did the court decide?

Kaluram Hawaba Potale and Otehrs v. the State of Maharasthsra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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