( 1 ) sa441.89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 441 OF 1989 Tukaram Krishnarao Tavare .. Appellant Aged about 40 years, Occ. Agriculture, [original R/o. Barhanpur, Tal. Newasa, plaintiff] Dist. Ahmednagar. Versus 1. The State of Maharashtra .. Respondents [original 2. The Additional Collector and Dy. defendants] Director of Resettlement (Land), Ahmednagar. 3. The Special Land Acquisition Officer, Mula Project (Command Area No.1), Ahmednagar. 4. Bhikaji Khanderao Chavan Since deceased through his L.Rs. 4A. Vishwanath Bhikaji Chavan, Since deceased through his L.Rs. 4A-i. Smt. Vatsalabai Vishwanath Chavan Age. 60 years, Occ. Household, R/o. Ghodegaon, Tq. Newasa, District – Ahmednagar. 4A-ii. Babasaheb s/o. Vishwanath Chavan Age. 38 years, Occ. Agri. R/o. Ghodegaon, Tq. Newasa, District – Ahmednagar. 4A-iii. Smt. Shantabai Sakhahari Tarade, Age. 42 years, Occ. Household, R/o. Brahmani, Tq. Rahuri, District – Ahmednagar. ( 2 ) sa441.89 4A-iv. Smt. Mandabai Changdeo Warude, Since deceased through L.Rs. 4A-iv-a. Pramod Changdeo Warude, Age. 14 years, Occ. Education 4A-iv-b. Pramila d/o. Changdeo Warude, Age. 12 years, Occ. Education 4A-iv-c. Rahul s/o. Changdeo Warude, Age. 10 years, Occ. Education. 4A-iv-d. Changdeo Bhimraj Warude, Age. 40 years, Occ. Agri., No. 4A-iv-a to c minors through their natural guardian father i.e. respondent Nos. 4A-iv-d All R/o. Khupti Post – Newasa, District – Ahmednagar. 4A-v. Smt. Bebitai Vitthal Pote, Age. 30 years, Occ. Household, R/o. Manuri, Tq. Rahuri, District – Ahmednagar. At present residing at Ghodegaon, Tq. Newasa, District – Ahmednagar. 4B. Shaharam Bhikaji Chavan, Age. 25 years, Occ. Agri., R/o. Barhanpur, Post. Kangaon, Dist. Ahmednagar. 4C. Smt. Gangubai Bhikaji Chavan, Age. 45 years, Occ. Household, R/o. Barhanpur, Post. Kangaon, Dist. Ahmednagar. Mr. R.N. Dhorde, Advocate for the appellant. Mr. V.D. Shelke, A.G.P. for respondent Nos. 1 to 3. CORAM : A.V. NIRGUDE, J. DATED : 08.06.2011 ( 3 ) sa441.89 ORAL JUDGMENT :- 1. This Second Appeal is challenging concurrent finding of the Courts below that the original appellant could not prevent the State of Maharashtra from acquiring his land for re-settlement of project affected persons. 2. The admitted facts are as under :- 3. Original appellant owned land Block No.154 which admeasured about 8 Acres. In addition to this, since August, 1970, he also held and occupied another piece of land admeasuring 3.5 Acres, as a mortgagee. He acquired this piece of land under a registered mortgage-deed. In 1972, the Government of Maharashtra issued a circular under the provisions of the Land Acquisition Act, providing that in order to rehabilitate the project affected persons, the Government would compulsorily acquire the lands from the area where original appellant resided. The circular mentioned that a person holding less than 10 Acres of land would not be affected by the circular. The circular further mentioned that 1 Acre land would be acquired from a person who holds 10 – 11 Acres land. It further mentioned that 2 Acres of land would be acquired from a person who holds land more ( 4 ) sa441.89 than 12 Acres etc. As per the circular a Notification was issued under Section 4 of the Land Acquisition Act and on 7th August, 1974, by Notification issued under Section 6 of the Act, land admeasuring 73 R belonging to the appellant was proposed to be acquired. The appellant felt aggrieved because of this proposal. He assumed that his holding to the extent of 3.5 Acres land as mortgagee would not be taken into account as his holding and therefore brought this suit to prevent the State of Maharashtra from compulsorily acquiring his above-mentioned area of his land. In the meantime, he even re-conveyed the mortgaged property to the mortgagor. But, the Courts below did not accept his contention and dismissed his suit. 4. The substantive question of law arising in this appeal is - “Whether the land occupied by the appellant as a mortgagee was part of his 'holding'?”. Although I could not locate- despite efforts a copy of the circular, yet, from the judgments of the lower Courts, it is clear that the circular used word “holding” to describe the total area of agricultural land held/lawfully occupied by a person. A question, therefore, is whether occupation of a piece of agricultural land as a mortgagee could be such person’s “holding”. ( 5 ) sa441.89 5. Later on, the State of Maharashtra in 1989 enacted an Act, by name, The Maharashtra Project Affected Persons Rehabilitation Act, 1986, which was subsequently repealed to bring in force another Act by same name of 1999. In order to understanding the meaning of word “holding”, a useful reference can be made to the definition of word “holding” given in Section 2 (8) of the above-mentioned Act. It reads as under :- “2(8) “holding” means the total land held by a person as an occupant or tenant or as both; Explanation – For the purposes of this clause, while calculating the total land held by a person, the following lands in the benefited zone shall not be taken into consideration, namely :- (a) the land on which the dwelling house or cattle shed (gotha) is erected and such land shall include also the area adjacent thereto comprising land of three meters surrounding such dwelling house or cattle shed (gotha); (b) the land on which a well has been dug and is shown as such in the village register of land records (Village Forms VII and XII); (c) the land which is shown as unarable or un- cultivable (pot-kharab) land in the village register of land records (Village Forms VII and XII) for a continuous period of not less than five years immediately before the year of issue of the notification under section 11; (d) fifty per cent of the land which is shown as saline (khar) land in the village register of land records (Village Forms VII and XII) for a continuous period of not less than five years immediately before the year of issue of the notification under Section 11;” ( 6 ) sa441.89 5. Apparently, this definition contemplated “holding” as occupying agricultural land lawfully either as tenant or otherwise. The word “occupant” is used in this definition. The dictionary meaning of word “occupant” is a person occupying or holding or in actual possession or one who takes possession or controls things actually etc. This means that a person who occupies a land could be an owner or a mortgagee or a tenant who has proprietary concern to the property. It is thus clear that the appellant at the relevant time was occupant of 3.5 Acres land as a mortgagee and so such occupation was equivalent to his holding. In view of this, at the relevant time, the appellant was holding more than 10 acres of land and the proposed acquisition of 73 R Area of his land cannot be stopped. The appeal should, therefore, fail. Hence, the Second Appeal is dismissed. 6. The effect of this order shall remain in abeyance for eight weeks. [A.V. NIRGUDE, J.] snk/2011/JUN11/sa441.89ok