1 wp1008-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1008 OF 2010 Dattatraya Damaji Karande .. Petitioner versus Special Land Acquisition Officer No.19 & Ors .. Respondents Mr.U.B.Nighot for the petitioner. Mr.R.M.Patne, A.G.P for respondent Nos.1 to 4. CORAM : S.C.DHARMADHIKARI, J. 3rd August 2011. P.C.: . The petitioner is aggrieved and dissatisfied with an order passed by the Divisional Commissioner, Revenue Division, Pune on 17th November 2009 rejecting the application invoking section 48(1) of the Land Acquisition Act, 1894. 2 The case of the petitioner-applicant in the application was that agricultural land Gat No.38 admeasuring about 3.30 hecters situated at village Kathapur, Taluka Ambegao, is the subject matter of acquisition. 2 wp1008-10.doc The total holding of the petitioner is 11.05 hecters. That there was partition between the petitioner and his six brothers, viz., Malhari Damaji Kakande, Keshav Damaji Kakande, Shivram Damaji Kakande, Baban Damaji Kakande, Tabaji Damaji Kakande in the year 1969-70. That there is mutation entry No.233 dated 2nd November 1975 in which it is very clearly stated that there was partition between the petitioner and his six brothers and they have been cultivating the land separately. Mr.Kondaji Damaji Karande preferred the application to the Tahsildar, Ambegaon on 13th September 1975 to give effect to the partition. 3 The second objection was that there is about 4.35 hectors pad land out of total holding of the applicant-petitioner, which is shown in the 7/12 extract from the year 1974 to 1980. 4 It was contended that the size of the holding is considered as criteria for applying slab as per Schedule A, Part II of the Maharashtra Project Affected Persons Rehabilitation Act, 1976. However, the size of the holding is considered by the authorities as is mentioned in 8A Extract/Khate Utara. The said 8A Extract is maintained only for collecting total agricultural assessment. This extract has nothing to do 3 wp1008-10.doc with rights of the persons mentioned in 8A Extract. The 8A Extract is the list of land, area and assessment. This aspect should be considered for applying slab as per the Act. Contending thus and arguing before the Commissioner, that the individual holding should be considered, the petitioner-applicant prayed that the subject matter be deleted from the acquisition proceedings. 5 Upon this application which was filed on 15th April 2003, the hearing was held before the Commissioner. At the hearing, the Commissioner was informed that the cut off date, viz, for the project is 7th February 1979. Prior to this date, on 6th September 1975, the brother of the petitioner-applicant Kondiba had informed the authorities that it is not possible for him to pay the assessment and other dues which are in arrears in respect of his lands individually and, therefore, he requested that the names of all brothers be recorded in the records. On this application, the enquiry was initiated and Mutation Entry No.233 was made in the name of all brothers. However, since there were arrears of loan, that the Sub Divisional Officer, Manchar cancelled this Mutation Entry on 15th December 1975, inspite of the fact that from 1965 to 1970 all the brothers have separated, they are cultivating lands in their 4 wp1008-10.doc possession separately. Therefore, this aspect is material. If the aspect is material and relevant, then, the said land be excluded from acquisition. 6 On perusal of record, the Commissioner passed an order holding that once the Mutation Entry was cancelled and no further proceeding was initiated to correct the same, it will not be possible to hold that there was partition by metes and bounds of the agricultural lands. Further, he held that the certificate issued by the Gav Kamgar Talathi, Kathapur, who is not competent to certify whether the land is pad land or not, cannot be relied upon to consider the alternate request as well. He dismissed the petitioner’s application and that is how this writ petition has been filed. 7 An affidavit in reply has been filed by the Deputy Commissioner (Resettlement), Pune. He has pointed out that the holding was standing in the name of Kondiba Damaji Karande. As this holding was more than 3.30 hectors on the date of notification under Section 11 of the Maharashtra Project Affected Persons Rehabilitation Act, 1976, the slab was imposed on that holding. It is pointed out that in the year 1975, Mutation Entry No.233 recording the names of the petitioner and his 5 wp1008-10.doc brothers was taken in the village record. It was cancelled on the date 15th December 1975 by the Circle Officer Manchar. In these circumstances, the total holding as appearing in village Form No.8A was considered for the purposes of slab and any transfer by way of partition after that date being not permissible, it was held that there is no substance in the grievance of the petitioner. 8 Thus, the order of the Commissioner has been justified by referring to the record. 9 There is an affidavit in rejoinder which is filed by the petitioner in which it is stated that apart from the application, there is ample evidence to show that partition took place between the petitioner and Kondiba Karande. About their separate residence, the extract from list of separate ration card holders of fair price shops in village Kathapur, Budruk for the year 1972-73 is produced and it is clear that the brothers names are shown separately therein. Further, reference is made to the assessment list to the Gram Panchayat, Kathapur in the year 1977-78 showing that the houses of the brothers are separate and subjected to separate assessment. Therefore, as far as residence is concerned, they 6 wp1008-10.doc are residing separately. Then, it is stated that the petitioner and his brothers made joint application in the name of the elder brother Kondaji Damaji Karande to the Tahsildar, Ambegaon on 29th December 1979 pointing out that they are separate since last 10 years and they have partitioned their land as mentioned in the said application and, therefore, requested to make necessary correction in that behalf. On this application it is stated that the notices under Rule 3 in Form A were issued to the brothers and the petitioner, therefore, statements for recording partition. The Tahsildar also issued declaration under Rule 3 in Form B to the petitioner and his brothers to remain present for hearing as per their application. This declaration by Tahsildar would demonstrate that the petitioner and his brothers have partitioned the agricultural lands 10 years prior to the date of application and they are, therefore, separated much prior to the date of notification. Once there is partition as evidenced by this material and which is prior to relevant date, 7th February 1979, then, the portion of the land which is subject matter of the application under section 48(1) of the Land Acquisition Act should be excluded from acquisition. 10 On this material, I have heard Mr.Nighot appearing for the 7 wp1008-10.doc petitioner and Mr.Patne appearing on behalf of the respondents. 11 Mr.Nighot places reliance upon a judgment of the Hon’ble Supreme Court in the case of Mudigowda Gowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by his legal representatives and another reported in AIR 1969 Supreme Court 1076. He has also relied upon a judgment of the Hon’ble Supreme in the case of Roshan Singh and others Vs. Zile Singh and others reported in AIR 1988 Supreme Court 881. 12 On the other hand, Mr.Patne appearing on behalf of the respondents has invited my attention to the fact that there is no evidence of partition of agricultural lands by metes and bounds. The properties admittedly consisted of agricultural lands. As far as the agricultural lands are concerned, on the cut off date, there was no evidence of partition by metes and bounds at all. The reliance placed upon the Mutation Entry No.233 was clearly misplaced inasmuch as that entry was cancelled in the year 1975 and to be precise on 15th December 1975. There is no appeal although it is faintly suggested that memo of appeal is available in the record. However, there is no 8 wp1008-10.doc material to indicate that such an appeal was ever pursued by Kondaji or the petitioner or any efforts were made to have the lands partitioned physically by metes and bounds. In such circumstances, according to Mr.Patne, the anewari cannot be said to be proof or evidence of the partition. Similarly, the evidence in relation to house properties is not enough to draw a presumption that the agricultural lands were being cultivated separately prior to the cut of date. For all these reasons and when there are findings of fact recorded, which cannot be said to be perverse, this Court should not interfere in the writ jurisdiction. 13 With the assistance of Mr.Nighot and Mr.Patne, I have perused the petition and all annexures thereto so also affidavits on record. I have perused the judgments which have been brought to my notice. The relevant provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 have also been perused. 14 It cannot be forgotten that the Maharashtra Project Affected Persons Rehabilitation Act, 1999 is an act to rehabilitate project affected persons. The several projects including irrigation and dam projects which have been undertaken by the State dishouse persons who are 9 wp1008-10.doc cultivating agricultural lands which are fertile and the only source of their income. When such persons are displaced, naturally, legislature envisages their rehabilitation. It is an attempt to compensate them by providing agricultural lands in the vicinity or in the area demarcated for such rehabilitation so as not to deprive them of their source of livelihood. It is with such an intention that the legislature has enacted the Act containing provisions for identifying slab area and the rehabilitation portion. 15 Naturally, persons like the petitioners whose lands are notified for acquisition, raise objections and possibly like others, they are also reluctant to part with cultivable and fertile lands. These lands are also their source of income. However, ultimately, an attempt is made to strike a balance so that whatever is left for cultivation is enough to make a living. In the present case, 3.30 hectres of the land which is subject matter of the application for acquisition and the attempt is to hold on the same by urging that there is a partition in the family. The lands have been partitioned physically and brothers are residing separately and cultivating their portion of the lands. This is a fact according to the petitioner-applicant from the year 1969-1970. It is true that the principle 10 wp1008-10.doc laid down in the Supreme Court decision is that an agreement between all coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severally will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. This is the settled principle and, therefore, but if expression of intention is a mere pretence or a sham, then, there is in the eye of law no separation of the joint family status. In the case of Roshan Singh (supra), which has essentially arisen out of the controversy as to whether a document presented as evidence of partition can be accepted in the absence of it being registered in the terms of the Registration Act, that the Supreme Court held that a perusal of the said Deed or document would indicate that it does not create a division in the family or separation or severance of the status but records a pre-existing arrangement. Thus, there was a earlier partition which was referred to and recorded in the Deed. That such a Deed or document does not require registration is essentially the ratio of this judgment. This judgment, therefore, cannot be of any assistance in the present facts and circumstances. 11 wp1008-10.doc 16 Here, the Commissioner was of the opinion that the controversy revolves around the agricultural lands. There are six brothers. It is clear that Kondaji made an application to insert the alleged division of properties and particularly the agricultural lands. On that application, a Mutation Entry was made being Mutation Entry No.233. However, the Circle Officer, Manchar, deleted that entry in the year 1975 and thereafter, the matter was not pursued. 17 Today, an attempt is made to show that there was indeed a division or partition in the family and which is much prior to the cut off date. It is argued that it is 10 years prior to the said cut off date. Thus, from 1969-1970 all brothers separated and each one of them is cultivating his land separately. It was, therefore, necessary to produce such evidence and particularly in relation to the agricultural lands. The material in relation thereto must evidence the status prior to the cut off date. It is no use producing documents in relation to alleged separation between brothers and demonstrating their separate residence. The house property may have been subjected in this case, according to the petitioner, to separate assessment qua each house but all this material would not be of any assistance to demonstrate partition of the 12 wp1008-10.doc agricultural lands and their separate cultivation and possession by each brother. If that was a clear and unimpeachable case, then, there was no necessity to refer to the application made on 29th December 1979 by Kondaji and notices issued on the same by Tahsildar. Thus, the application by Kondaji after 7th February 1979 to have the partition recorded in respect of the agricultural lands is reasoned enough for the Commissioner to show his disinclination to assist the petitioner in this case. 18 This is a finding clearly based on the material that was before the Commissioner. The original record has been called for even by this Court and that has been perused by the parties. The rejoinder affidavit filed makes an attempt to show that there was a partition in the family and that is evident by the separate residence. However, in the rejoinder there is a reference to the statement made in the application of Kondaji dated 29th December 1979 is reason enough to hold that the Commissioner has not committed any perversity nor his finding and conclusion is vitiated by any error of law apparent on the face of record. For all these reasons, I do not find any merit in this petition and accordingly, the petition is dismissed. 13 wp1008-10.doc 19 The alternate contention that the choice was not given to the petitioner is also not of any assistance because the Commissioner has recorded that the village Talathi and Agricultural Officer are not competent to issue certificate of Pad land in 1991. He held that the Act requires entries of uncultivable land in the record of right for five years before the date of notification under section 11 of the Act. Once again, this is a finding of fact which cannot be termed as perverse or vitiated by error apparent on the face of record so as to call for interference in the writ jurisdiction. Resultantly, the petition fails and it is dismissed. 20 At this stage, Mr.Nighot appearing for the petitioner states that on this petition while issuing notice dated 5th February 2010 this Court passed an order directing the respondents not to take any action for allotment of land of the petitioner to any person. Inherent in this order is approval of the argument on behalf of the respondents that the acquisition process is complete, the possession has been taken and the land has vested in the State. However, the lands have not been allotted to any project affected persons. The request now is that this ad-interim order may be continued to enable the petitioner to challenge this order 14 wp1008-10.doc in the higher Court. 21 This request is opposed by the respondents by contending that the project is notified on 7th February 1979. The persons who are displaced by the project are required to be rehabilitated and the lands are, therefore, required for that purpose. 22 After hearing both sides on this issue, I am of the opinion that interest of justice will be served if it is directed that for a period of eight weeks from today, the land admeasuring 3.35 Ares at village Kathapur should not be allotted to any allottee in terms of the Scheme and Rehabilitation Act. (S.C.DHARMADHIKARI, J)