1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4717 OF 2009 ... Shri Aba Prabhu Masalkar ...Petitioner v/s. Vithoba Sadhu Wadane since deceased through legal heirs Shri Shantaram Vithoba Wadane and others. ...Respondents ... Mr.A.V.Anturkar i/b S.B.Deshmukh for the Petitioner. Mr.P.B.Shah i/b A.B.Avhad for Respondents 1A & 1F Mr.A.I.Patel, AGP for Respondents Nos. 2 to 5. ... CORAM: D.K.DESHMUKH, & K.K.TATED, JJ DATED:19th November, 2009 P.C.: 1. The Petitioner by this petition 2 challenges the order passed by the Divisional Commissioner dated 29-4-2009 rejecting the application filed by the Petitioner dated 8-8-2005. 2. The facts that are relevant for deciding this petition are that for rehabilitation of the project affected persons, in the year 1979 the land admeasuring 0.95 Hector was acquired from the Petitioner from survey No.144. Possession of that land was delivered by the Petitioner on 28-6-1991. Thereafter by order dated 15-5-1992 that land was allotted to Respondent No.1. After possession of the land was taken from the Petitioner, on 28-6-1991 in the Record of Rights an entry was taken showing Collector as the owner of the land. After the land was allotted to the Respondent No.1, in the Revenue Record an entry was 3 taken showing him as the owner of the land and showing him to be in possession of the land. The Petitioner on 8-8-2005 filed an application under Section 48(1) of the Land Acquisition Act before the Commissioner that the Commissioner should acquire the land from the southern side from Survey No.144 in stead of the land presently acquired. It appears that that application was granted by an order made by the Commissioner. That order was challenged before this Court in Writ Petition No.2570 of 2007. This court held that the Commissioner should have recorded a clear finding on the question whether the possession of the land acquired was taken before making an application under Section 48(1). After remand the application was disposed of by order dated 29-4-2009. That application has been rejected. The Commissioner by that order held that the 4 possession of the land which was acquired has been taken. He has also recorded a finding that even assuming that the possession of the land has not been taken, the land that is now being offered by the Petitioner cannot be termed as suitable for cultivation and therefore cannot be accepted as alternate land. The learned Counsel appearing for the Petitioner submitted that the Commissioner has not in his order recorded a clear finding that the possession of the land was taken from the Petitioner. The learned Counsel then submitted that in any case even assuming that the land that is being offered as alternate land was not suitable for cultivation, in the submission of the learned Counsel a definite finding ought to have been recorded whether actual possession is lost by the Petitioner or not. 5 3. We have heard the learned Counsel appearing for the Respondents also. Perusal of the order of the Commissioner, especially paragraph 7.1 and 7.2 of the order shows that there is a clear finding recorded that possession of the land was taken from the Petitioner. The Petitioner has contended that because in the possession receipt boundaries are not mentioned, possession is not taken. That aspect has been dealt with and the Commissioner has observed, relying on the report submitted to him by the Land Survey Department, that possession has been taken. In our opinion, the material presently on record shows that possession appears to have been taken. There is possession receipt, which appears to have signed by the Petitioner. Relying on that possession receipt, mutation entry was taken in the Record of Rights in the year 1991-92 itself. 6 Had the Petitioner continued in possession of the land, the Petitioner would have objected to that entry taken in Revenue Record as the land vests in the government only after its possession is taken by the Government. Entry made in the Revenue Record has presumptive value and therefore cannot be easily brushed aside. Further there is an allotment order made in favour of Respondent No.1. There are entries taken in Revenue Record pursuant to that allotment. The Respondent No.1 claims to be in possession of that land. In our opinion, therefore, there is abundant material available on record in support of the finding recorded by the Commissioner that possession of the land was taken from the Petitioner before he made the application in the year 2005 under Section 48-A of the Land Acquisition Act. From the application, we find that it was an 7 application made for deletion of the land from acquisition in substitution of other land. That application was rejected by the Commissioner on the ground that the land that was offered by the Petitioner as an alternate land was not capable of being cultivated. In our opinion, to a person who is to be rehabilitated because he has lost his land for a development project, the land which is not capable of being cultivated cannot be given. The Petitioner has changed his mind about the land that should be acquired from his holding after 26 years. 4. Taking overall view of the matter, therefore, in our opinion, the Petitioner does not deserve interference in his favour at the hands of this Court in its extra ordinary jurisdiction under Article 226 of 8 the Constitution. Petition is, therefore, rejected. (D.K.DESHMUKH, J.) (K.K.TATED, J.)