1 Writ Petition No.4106/09 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4106 OF 2009 Hussain Mohammed Shaikh, since deceased through his legal heirs & ors. ..Petitioners Vs. The Special Land Acquisition Officer No.2, Kolhapur & Ors. ..Respondents Shri R.M.Momin for the Petitioners Shri V.S.Gokhale AGP for Respondent Nos.1 to 6 Coram: P.B.MAJMUDAR AND R.M. SAVANT, JJ. 14th July, 2010 P.C. 1. Rule, with the consent of the parties made returnable forthwith and heard. 2. The above Petition filed under Section 226 of the Constitution of India, takes exception to the Notification issued under Section 4 and declaration under Section 6 of the Land Acquisition Act and the Notification issued under Section 14 & 15 of the Maharashtra Project Affected Person Regulation Act 1986 (hereinafter referred to as the Act of 1986). The principal ground of challenge as can be culled out from the grounds, which are mentioned in paragraph 24 is that if the principles of the Mohammedan Law are applied by which the Petitioners are governed, the holding of each of the Petitioners who are the heirs of the Original 2 Writ Petition No.4106/09 Khatedar, Hussain Mohammed Shaikh would fall below the slab prescribed for the project in question under the Act of 1986. 3. In so far as the acquisition of the land of the Petitioners is concerned, the same has had chequered history in the earlier round of litigation, the Petitioners Writ Petition No.1415 of 1997 was dismissed by a Division Bench of this Court on 7-12-1995 against the said Judgment, the matter was carried to the Apex Court by way of Special Leave Petition by the Petitioners. The Apex Court by Judgment and Order dated 1-12-1998 had remanded the group of Writ Petitions including the one filed by the Petitioners to the Divisional Commissioner, Pune. The Divisional Commissioner was directed to examine the cases of the Petitioners in all the Writ Petitions afresh on the basis of the circulars and relevant records. The Petitioners were at liberty to submit all the necessary particulars and records in support of their contentions. 4. In so far as the present Petitions are concerned the point regarding Mohameddean law was specifically taken in the application dated 23-7-2001 that was filed before the Divisional Commissioner. The Divisional Commissioner in terms of the directions as contained in the order of the Apex Court dated 1-12-1998, has considered the matter and has passed an order which is dated 4/12/2008. Perusal of the said order discloses that the Divisional Commissioner by merely observing that the Act of 1986 is applicable and, therefore, the 3 Writ Petition No.4106/09 Petitioners contention cannot be accepted has thereby merely brushed aside and glossed over the specific issue which was raised before him. 5. In our view, the said order is, therefore, not sustainable and is required to be set aside and is accordingly set aside and the matter is remanded back to the Divisional Commissioner, Pune for a fresh consideration. The Divisional Commissioner on such remand is specifically directed to arrive at a decision considering the directions of the Apex Court as contained in the order dated 1-12-1998 as also after taking into consideration the Division Bench Judgment of this Court passed in Writ Petition No.968 of 1988 dated 15-4-1996, where the implications of the application of the Mohammedan Law on the acquisition under the Act of 1986 has been specifically dealt with. The Commissioner would be also advised to take into consideration the grounds of challenge of the Petitioners and more specifically ground (f) to the Petition. Since this is a second remand to the Divisional Commissioner, we expect the Commissioner to pass reasoned order dealing with the said ground specifically. The Divisional Commissioner may on remand dispose of the matter within a period of four months from date. The Petitioners to appear before the Divisional Commissioner on 26th July 2010 at 11.00 a.m. The Divisional Commissioner may thereafter fix the schedule as per his convenience. The Petitioners to file copy of the above Writ Petition in the office of the Divisional Commissioner. The 4 Writ Petition No.4106/09 Petitioners would also be entitled to rely upon such documents as they deem fit in support of their case. 6. Rule is accordingly made absolute to the aforesaid extent with parties to bear their own costs. 7. Till such time, the decision is rendered by the Divisional Commissioner and for a period of two weeks thereafter, if the decision is adverse to the Petitioners, the Petitioners may not be dispossessed from the land in question. (R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)