-: 1 :- wp- 2215/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2215 OF 2010 Hanmant Srinivas Deshpande & Ors. ..Petitioners. Versus The Special Land Acquisition Officer & Ors. ..Respondents. Mr. Mahendra Deshmukh for the petitioners. Mr. V. S. Gokhale, AGP for the respondents. Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 28, 2010. P. C. (Per R. V. More,J.) : 1. Heard Mr. Deshmukh, learned counsel for the petitioners and Mr. Gokhale, learned AGP for the respondents. The petitioners by filing present petition under Article 226 of the Constitution of India, seek declaration that the acquisition proceedings in respect of their land is null and void. The petitioners also seek declaration that action of applying the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 (for short “the said Act”) to their land is illegal. 2. The land admeasuring about 1-hectare and 62-Ares situated at village Soholi, taluka Kadegaon, district–Sangli belonging to the petitioners was acquired by the respondent – Authorities for the purpose of resettlement of project affected persons by Wang Project by notification dated 20/9/1999. The petitioners, however, contend that srp -: 2 :- wp- 2215/10 the respondents have neither followed the procedure established by law nor issued any notice to them. It is the contention of the petitioners that their land is not liable to be acquired by applying the slab of 8 acres, as the petitioners who are co-parceners get share in the joint family property by birth. It was also contended that the land under acquisition was Devsthan Inam Class-3 land, and therefore same could not have been acquired. 3. Mr. Gokhale, learned AGP contested the petition. The averments in the petition came to be denied by filing two affidavits-in-reply of Mr. Bhau Balu Galande, Special Land Acquisition Officer No.12, Krishna Khore, Sangli. It was submitted that the slab of 8 acres was correctly applied to the joint family property of the petitioners. It was also submitted that the procedure established by law is followed by the respondent authorities while acquiring the land in question. The award is already passed and possession of the land in question is also taken and therefore the present petition cannot be entertained. 4. Having heard learned counsel for the petitioners and learned AGP and having gone through the compilation of the petition and affidavits- in-reply filed by the respondent, we find no merit in the petition. The petitioners challenge the acquisition of the land Gat No.172 admeasuring 1-hectare and 62-Ares situated at village Soholi, taluka Kadegaon, -: 3 :- wp- 2215/10 district–Sangli. The notification under section 4 of the Land Acquisition Act was issued on 25/1/1999. The said notification was published in the daily newspapers “Tarun Bharat” and “Kesari” on 29/1/1999 and 30/1/1999 respectively. Notices were issued in the name of Shriniwas Bhimrao Desphande, father of the petitioners, as the said land was standing in his name. Thereafter, enquiry under section 5 of the Land Acquisition Act was held and section 6 declaration was issued on 24/3/1999. Further enquiry under section 9(3)(4) of the Land Acquisition Act was held and ultimately the award was passed on 20/9/1999. The possession of the land in question was taken and the mutation entry to that effect was also recorded. It is the case of the petitioners that no notice of the acquisition proceeding was given to them. This contention is without any substance in view of the statement given by Subhash, the elder brother of the petitioners, which is annexed as Exhibit-1 to the additional affidavit-in-reply filed by the respondent. The said document discloses that the elder brother of the petitioners gave statement in the enquiry under section 9(3)(4) of the Land Acquisition Act, whereunder he has claimed compensation at the rate of Rs.50,000/- per acre for the jirayat land and at the rate of Rs.1,00,000/- for bagayat land. The petitioners by filing affidavit-in-rejoinder disputed the signature of Subhash, however, that issue cannot be gone into in the -: 4 :- wp- 2215/10 present writ petition. 5. The petitioners claim that petitioner nos.1 & 2 are the sons and petitioner no.3 is wife and petitioner nos.4 to 7 are the daughters of deceased Shrinivas. The petitioner contend that the petitioners, as co- parceners have right in the joint family property, by birth and their shares are required to be considered separately while calculating the slab of 8 acres. This submission is without any substance in view of the provisions of Section 12(5) of the said Act. There is no evidence of partition among the co-parceners. After the death of Shrinivas in the year 1991, the name of petitioner no.3 was recorded to the land in dispute. In the absence of division of joint family property by way of partition, the petitioners cannot be allowed to contend that their joint family property should not be considered as one unit. The petitioners’ contention that the land under acquisition was Devstahan Inam Class-3 land is also without any substance in view of the provisions of section 10(2)(a) and (b) of the said Act. The notification annexed by the petitioners themselves at Exhibit-C to the petition does show that the entire village Soholi is shown in the benefit zone of Wang project and therefore, we are of the opinion that the provisions of said Act are rightly applied to the petitioners’ land. 6. As stated above, the award in respect of the said land is passed on -: 5 :- wp- 2215/10 20/9/1999 and thereafter possession was taken by the respondents by effecting mutation entry no. 4814. The petitioners thereafter preferred an application under section 48 of the Land Acquisition Act for the deletion of their land from the acquisition. However, the said application was dismissed by the Collector on various grounds, including the ground that same is not maintainable. Thereafter, the petitioners by filing the present writ petition, have challenged the acquisition proceedings. However, we find that in view of the above stated circumstances, the writ petition is without any merit. 7. The elder brother of the petitioners participated in the enquiry under section 9(4)(3) of the Land Acquisition Act held in the year 1999. It is the case of the petitioners themselves that for the first time in the year 2004, they came to know about the acquisition proceedings of their land. The writ petition is filed in only the year 2010. The petitioners could not explain the delay occurred in approaching this Court. Taking into consideration the totality of the facts and circumstances of the case, we find no merit in the petition and same is therefore dismissed. (Smt. Ranjana Desai,J.) (R.V. More, J.)