:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5282 OF 2000 WRIT PETITION NO. 5282 OF 2000 WRIT PETITION NO. 5282 OF 2000 1. Ram Haribhau Gunjal ] 2. Laxman Haribhau Gunjal ] 3. Smt. Sonabai Haribhau Gunjal ] 4. Smt. Gangubai Haribhau Gunjal ] 5. Sou. Chandrabhaga Tulshiram ] Korde ] 6. Sou. Nilam Vilas Tambe ] 7. Sou. A.B. Belkar ] all adults, Indian Inhabitants ] all residing at Village Belha ] Taluka Junnar, District Pune ]..Petitioners versus 1. State of Maharashtra ] 2. Special Land Acquisition ] Officer, Pune Rogion, Pune ] 3. Sub Divisional Officer ] Junnar Sub division Khed, Pune ] 4. Haji Mohamad Yusuf Kasambai ] Maniyar, since deceased by his ] Legal heirs : ] 4A. Godabai Haji Mohamad Yusuf ] Maniar, Since deceased by Legal heirs ] and representatives : 4B to 4F ] already on record ] 4B. Aminabai Mohamad Saheb Attar, ] age 55, Occu: Household,residing] at Village Velhe, Tal. Junnar, ] Dist. Pune. ] 4C. Hajrabi Mohamad Sab Attar ] Since deceased through legal ] representatives : ] 4C.1. Bashir Ahmed Attar ] Atar Apartments, Mahul Wadi, ] Khopoli. Dist. Raigad. ] 4C.2. Abdul Rehman Atar ] Altaf House, Near Church ] Ansari Road, Khopoli. ] Dist. Raigad. ] 4C.3. Mehboob Ahmed Atar ] Bhaunaj Corner, Khopoli, ] :2: Tal. Khalapur, Dist. Raigad ] 4C.4. Latifbahi Ahmed Atar ] At & Post Khopoli,Moghul wadi] Tal. Khalapur, Dist. Raigad ] 4(d) Banobai Mohamd Saheb Attar ] residing at Bagwan Mohalla, ] Pune, Dist. Pune ] 4(e) Roshanbi Noormahammad Maniyar ] Village Nasik Road, Sinnar ] Phata, Stationwadi,Near Nashik] High School, Dist: Nashik ] 4(f) Begam Badruddin Attar ] age adult, residing at Wadaj, ] Tal. Junnar, Dist. Pune. ] 5. Haji Jaffar Mohamad Yusuf ] Maniyar, at. 1847, Bhimpura, ] Pune ]..Respondents Shri P. S. Dani for the Petitioners. Shri V. Sonpal, AGP for the Respondents No.1 to 3. Shri K. Kokil h/f. Shri K. Bhaglia for Respondent Nos. 4(f), 4(d) and 5, and Ms. L. Panchakshari for Respondent Nos. 4(b), 4(d), 4(e), 4(f) and 5. CORAM : R.M.S. KHANDEPARKAR & CORAM : R.M.S. KHANDEPARKAR & CORAM : R.M.S. KHANDEPARKAR & NARESH H. PATIL, JJ. NARESH H. PATIL, JJ. NARESH H. PATIL, JJ. DATE : 30TH AUGUST, 2006 DATE : 30TH AUGUST, 2006 DATE : 30TH AUGUST, 2006 ORAL JUDGMENT : (Per : R.M.S. Khandeparkar,J.) : ORAL JUDGMENT : (Per : R.M.S. Khandeparkar,J.) : ORAL JUDGMENT : (Per : R.M.S. Khandeparkar,J.) : 1. Heard. 2. Petitioners by the present Petition are seeking direction to the Respondents to delete the land bearing Survey No. 148/1 admeasuring 81 Ares out of acquisition proceedings which were initiated :3: for the benefit of Pimpalgaon Joga Dam, under the provisions of Maharashtra Resettlement of Project Affected Persons in Village Belha, Taluka Junnar, District Pune, and in that regard to quash the Notice dated 17.8.2000 issued in that respect and further direct the Respondent Nos. 1 to 3 to proceed against the Respondent Nos. 4 and 5 in relation to the surplus area with the said Respondents in accordance with the provisions of law, with the exclusion of the land bearing Survey No. 148/1 admeasuring 81 Ares. 3. Few facts relevant for the decision are that the land bearing Survey No. 148/1 admeasuring 81 Ares situate at Village Belha, Taluka Junnar, Dist : Pune belonged to the Respondent Nos. 4 and 5. Under an Agreement dated 27.3.1974 executed by the said Respondents in favour of the predecessor in title i.e. the father of the Petitioners and on acceptance of sum of Rs.60,000/- out of the total consideration price of Rs.70,000/-, possession of the said land was delivered to the predecessor in title of the Petitioners. Inspite of investment of money for development of the property, pursuant to delivery of possession consequent to the execution :4: of the said Agreement, by the predecessor in title of the Petitioners, since the Respondent Nos. 4 and 5 hesitated to execute the Sale Deed, they filed Special Civil Suit No. 610 of 1976 for specific performance of the said Agreement in the Court of Civil Judge, Senior Division, Pune, in the year 1976, which came to be decreed on merits on 31.3.1986 with the direction to the Petitioners to deposit the balance amount in the Court and it was accordingly deposited by the predecessors of the Petitioners. The Respondent Nos. 4 and 5 preferred an Appeal being First Appeal No. 464 of 1986 in this Court which came to be dismissed on 5.10.1994. Efforts to restore the Appeal also proved futile. Consequent to the death of the father i.e. predecessor in title, the Petitioners acquired right to the said suit land. 4. Records further disclose that on 30.8.1989 Notification under Section 11 of Maharashtra Resettlement of Project Affected Persons in respect of Village Belha, Taluka Junnar, Dist : Pune, came to be issued. It appears that on that date, the total holding of the land of the Respondent Nos. 4 and 5 was being shown as 4 Hectres and 56 Ares while :5: slab limit under the said Act was 3 Hecters and 23 Ares. It is further revealed that in the Declaration given by the Respondent Nos. 4 and 5 they preferred to include the suit land to be the surplus area for the purpose of acquisition under the said Act. 5. All the above narrated facts are not in dispute. There is no counter affidavit filed by the Respondents disputing any of these facts. 6. The learned Advocate for the Petitioners submitted that once the property in question was already sold to the petitioners’ predecessor under Agreement dated 27.3.1974 by delivery of possession thereof, and the same was having been confirmed by the Decree of the Civil Court dated 31.3.1986, which has not been interfered with by the Appellate Court on account of failure on the part of the Respondents to secure any such alteration in the said decree in the Appeal filed against the same, there was neither any reason nor justification for the Respondent Nos. 4 and 5 to declare the suit land as the surplus area for the purpose of acquisition under the said Act and for the same reason the other Respondents would :6: not have accepted the said Declaration in relation to the said area, and as far as excess area they could have proceeded against the other land of the said Respondent Nos. 4 and 5. 7. On the other hand, the learned Advocate for the Respondent Nos. 4 and 5 submitted that the Appeal filed against the Decree of the trial court is still pending before District Court on account of the same having been transferred to the District Court. According to her, therefore it is too premature to deal with the contentions sought to be raised on behalf of the Petitioners. 8. Learned Advocate appearing for the other Respondents submitted that the Revenue Records at the relevant time disclosed that the suit land was in occupation of the Respondent Nos. 4 and 5 and therefore the declaration was accepted. 9. In the background of undisputed facts and more particularly considering that the possession of the suit land was delivered to the Petitioners father on 27.3.1974 and it continued with the Petitioners’ father and thereafter with the :7: Petitioners continuously since then, merely because the Revenue Record disclosed the name of the Respondent Nos. 4 and 5 in the year 1989 to be the occupation of the suit land, that by itself cannot enure to the benefit of the Respondents to contend that they would be entitled to include the said area in the surplus area to be declared by the said owners for the purpose of acquisition under the said Act. Once the claim of the petitioners was duly confirmed by the Decree of the Civil Court and which had not been set aside in the Appeal, the same decree should be deemed to have attained finality. Undisputedly, the decree was issued in the year 1986 much prior to the Notification under Section 11 of the said Act. The decree relates back to the date of the delivery of possession of the property under the Agreement of which the specific performance was ordered by the said Decree. The date of the Agreement relates to 27.3.1974. In other words nearly more than 12 years prior to the issuance of the Notification under Section 11 of the Act, the property ceased to be in occupation of the Respondent Nos.4 and 5. 10. The contentions on behalf of the Respondent :8: Nos.4 and 5 that the Appeal is still pending against the decree of the trial court, is totally devoid of substance as it is not corroborated by any material on record. There is specific averment made in the Petition in paragraph 6 that the Appeal was dismissed by this Court on 5.10.1994 on account of default in appearance on the part of the Appellants. It is further stated that the application for restoration filed by the Respondent Nos.4 and 5 has also been dismissed and therefore the decree has attained finality. The Respondents have not countered the said statements of facts by producing any material which can establish to the contrary. 11. Being so, the statement which has not been countered in the manner it was required to be countered, must be deemed to have been established and proved, and hence it is to be held that the Decree passed by the trial court on 31.3.1986 in Special Civil Suit No. 610 of 1976 has attained finality. The said finality having been attained with relation to the date of the decree which is much prior to the issuance of Notification under Section 11 of the said Act, the Petitioners are justified in contending that the Respondent Nos. 4 :9: and 5 were not entitled to include the said land in the surplus area of the Respondent Nos. 4 and 5 for the purpose of the said Act. For the same reasons, the Respondent Nos. 1 to 3 also could not have acted upon such Declaration in relation to the said area. Prima facie it appears that the Respondent Nos. 4 and 5 have played a fraud upon the Authority, in that regard. 12. Even assuming that the Appeal is pending against the impugned decree, fact remains that the decree passed by the trial court has not been stayed and for all purposes it is operative. Being so, either on 30.8.1989 on the day on which the Notification under Section 11 was issued under the said Act as also when the Declaration was made by the Respondent Nos. 4 and 5 regarding the surplus area, the decree of the trial court was in full force. Obviously, therefore on the date when the Declaration was made, Respondent Nos. 4 and 5 were not entitled to include the said land as surplus area for the purpose of the said Act. Even today there is no stay to the decree of the trial court and this fact is not in dispute. :10: 13. Being so, even today they are not entitled to include the said area as part of surplus area of the Respondent Nos.4 and 5. 14. Even otherwise, when the matter is under dispute, it would not be a matter of privilege of the owner to insist to include such area as surplus area for the purpose of the said Act. Being so, irrespective of the pendency of the Appeal, the Respondent Nos.4 and 5 were not entitled to include the area in question as the surplus area for the purposes of the said Act. 15. In the result on all counts, the inclusion of the said land in the surplus area of the Respondent Nos.4 and 5 was totally wrong and unfair on the part of the Respondent Nos. 4 and 5. The Petitioners therefore are justified in contending that the Respondent Nos.1 to 3 have to proceed against the Respondent Nos.4 and 5 in relation to the excess area, taking into consideration the remaining area of the land with the Respondent Nos. 4 and 5 and excluding the suit land, in accordance with the provisions of the said Act. :11: 16. For the reasons stated above, therefore, the Petition succeeds. The impugned Declaration by the Respondent Nos.4 and 5 in relation to the excess area to the extent it relates to the suit land bearing Survey No. 148/1 admeasuring 81 Ares along with the notice dated 17.8.2000 so far as it relates to the suit land are quashed with liberty to the Respondent Nos. 1 to 3 to proceed against the Respondent Nos.4 and 5 for acquisition of the surplus area of the Respondent Nos.4 and 5 in accordance with the provisions of law excluding the suit land. We would expect the Respondent No.1 to take appropriate action against the Respondent Nos. 4 and 5 for misleading the Authorities and making false Declaration in relation to surplus area. The Respondents are expected to take appropriate action in that regard. Rule is made absolute accordingly with costs of Rs.2,000/- to be paid by the Respondent Nos.4 and 5. (R.M.S. KHANDEPARKAR, J. ) (R.M.S. KHANDEPARKAR, J. ) (R.M.S. KHANDEPARKAR, J. ) (NARESH H. PATIL, J.) (NARESH H. PATIL, J.) (NARESH H. PATIL, J.)