Partly allowed

Pandurang Mahadev Jadhav and Ors. v. the State of Maharashtra and Ors.

Bombay HC12 Feb 2014WP/11071/2013

Case brief

AI extract

What is this about?

High Court quashed a Divisional Commissioner's order rejecting land requisition application because the Commissioner ignored a final civil court decree establishing partition. The High Court remanded the matter, directing the Commissioner to consider the decree and determine the applicability of Section 12 of the 1999 Rehabilitation Act.

What did the court decide?

Impugned order quashed; Application remanded to Divisional Commissioner for fresh adjudication considering the final civil decree and addressing applicability of Section 12 of the 1999 Act.

Pandurang Mahadev Jadhav and Ors. Vs the State of… — Land Acquisition | Bombay HC (2014)

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wp 11071.13 (11)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.11071 OF 2013

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Pandurang M. Jadhav & ors. .. Petitioners vs. The State of Maharashta & ors. .. Respondents

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Mr.P.P. Kulkarni for Petitioners. Mrs. M.P. Thakur, AGP for Respondents.

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CORAM : A. S. OKA & M. S. SONAK, JJ. 12TH FEBRUARY 2014

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P.C. :-

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1] Rule. Learned AGP waives service for the Respondents. Forthwith, taken up for final hearing.

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2] The Petitioners claim to be the owners of various lands including the land bearing Gat No.479 P admeausring 99 R at Village Chandur, Taluka Hatkangle, District Kolhapur. The Petitioners are also claiming to be the owners of land bearing Gat No.389 admeasuring 1 Hectare and 13 Ares. A notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “said Act) was issued on 13^th May 1983. The acquisition was for rehabilitating the project affected persons of Warana Project. An Award under Section 11 of the said Act made on 27^th October 1988.

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3] The Petitioner applied under Section 48(1) of the said Act before the Divisional Commissioner Pune Division, Pune praying for

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deletion of the land bearing Gat No.479 P and the land bearing Gala No.389 from the acquisition. One of the contentions raised by the Petitioners appears to be that their predecessor Mahdev died on 10^th November 2000 whose holding was placed below the prescribed slab. Reliance was placed on a decree dated 3^rd July 2000 passed by the Civil Court in Regular Civil Suit No.546 of 1988 filed by the Petitioners' predecessor Mahadev. By the impugned order, placing reliance on the provisions of Section 12 of the Maharashtra Project Affected Persons Rehabilitation Act 1999 (for short “the said Act of 1999”), the Divisional Commissioner came to the conclusion that theory of partition can be accepted provided the effect has been given to the partition by metes and bounds in the revenue record before the relevant date. The Divisional Commissioner observed that the Suit itself has been filed after the cut-off date of 2^nd November 1978.

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4] The submission of the learned counsel appearing for the Petitioners is that the acquisition was initiated under the provisions of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short “the said Act of 1976”). His submission is that the real test is whether the holding of the Petitioners' predecessor on the relevant date was below the prescribed slab. He urged that under the said Act of 1976, there was no requirement of proving

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partition only by the entries in revenue records of the partition by metes and bounds. He invited our attention to the finding recorded by the Civil Court in a Suit to which State of Maharashtra is a party.

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5] Learned AGP submitted that the Divisional Commissioner was justified in not placing reliance on the decree as the suit itself was filed after the cut-off date for claiming a declaration as regards the earlier partition. She, therefore, submitted that no interference is called for.

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6] We have considered the submissions. We have perused the impugned order. Reliance placed by the Petitioners on the decree passed in Regular Civil Suit No. 546 of 1988 has been brushed aside only on the ground that the Suit was filed after the cut-off date of 2^nd November 1978. In paragraph 3 of the impugned order that is the reason recorded by the Divisional Commissioner. In paragraph 4, it appears that the Divisional Commissioner has relied upon Section 12(4) of the said Act of 1999, for holding that the partition cannot be considered unless the entry of the partition made by metes and bounds is recorded in the relevant village record. The Divisional Commissioner has not recorded any reasons as to how Section 12 of the said Act of 1999 is applicable when the acquisition seems to have been initiated under the provisions of the said Act of 1976.

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7] We have perused the decree passed by the Civil Court in Regular Civil Suit No. 546 of 1988. The State of Maharashtra and Special Land Acquisition Officers were first and second Defendants to the said Suit. The Suit was contested by the State of Maharashtra and the Land Acquisition Officer. By filing written statement, it was specifically denied that the predecessor of the Petitioners i.e., Shri Mahadev was holding area of 7 Acres and 17 Guntha.

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8] We have perused the issues framed by the Trial Court. The second issue was as regards the partition claimed by the Plaintiff Mahadev. Issue No.4 was regarding the total holding of Mahadev. In paragraph 14 of the judgment, while answering the issue No.2, there is a categorical findings recorded by the learned Civil Judge that in the year 1963, there was a family partition in which Mahadev was allotted a share of 6 Acres and 11 Gunthas. While answering the issue No.4, the learned Judge held that apart from the said share of 6 Acres and 11 Guntha which was granted to Mahadev in partition of 1963, after death of Shankar (his father) he received an area of 1 Acre 7 Guntha by succession and therefore, his holding was of 7 Acres and 17 Guntha and that is the precise declaration granted by the Civil Court.

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9] It is not in dispute that the decree of the Civil Court has become final. The fact that the Suit was filed after the cut off date is

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completely irrelevant as there is a decree of the Civil Court which binds the State of Maharashtra. It is not in dispute that the State of Maharashtra did not challenge the decree. Therefore, in our view, the decree ought to have been taken into consideration by the Divisional Commissioner.

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10] Prima facie, it appears to us that Section 12 of the said Act of 1999 will have no application. However, as there is no adjudication made by the Divisional Commissioner on this issue, we deem it proper to remit the case to the Divisional Commissioner for proper adjudication.

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11] Hence, we pass the following order:

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A The impugned order dated 2^nd November 2013 is quashed and set aside and the Application under Section 48(1) of the said Act made by the first Petitioner is remanded to the Divisional Commissioner, Pune;

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B] We make it clear that while deciding the Application afresh, the Divisional Commissioner will have to take into consideration the effect of the decree passed in Regular Civil Suit No.546 of 1988 which has attained finality. We also make it clear that the issue of applicability of Section 12 of the said Act of 1999 is expressly kept open;

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C] We direct the Petitioners or their authorised

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representative to appear before the Divisional Commissioner on 10^th March 2014 at 11.00 a.m. alongwith an authenticated copy of this order;

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D] The Divisional Commissioner shall fix a date for hearing of the Application. After giving an opportunity of being heard to the Petitioners and the concerned Officers of the State, the Divisional Commissioner shall pass a fresh order in the light of what we have held above, as expeditiously as possible, and in any event, within a period of three months from 10^th March 2014;

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E] Ad-interim relief which was granted earlier in this Petition will continue to operate till the date of communication of the order passed on the Application to the Petitioners or to one of them;

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F] If the order be adverse to the Petitioners, the adinterim relief will continue for a period of four weeks from the date of communication of the order to the Petitioners or one of them;

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G] Rule is partly made absolute in above terms; H] Parties to act upon an authenticated copy of this order.

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(M. S. SONAK, J.)

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(A. S. OKA, J.)

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Pandurang Mahadev Jadhav and Ors. v. the State of Maharashtra and Ors.

Case brief

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Pandurang Mahadev Jadhav and Ors. v. the State of Maharashtra and Ors.

Case brief

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