1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2776 of 2001 1. Mr.Ashok Ramchandra Desai @ Deshmukh, Age about 49 years, Occu – Service 2. Mr.Dilip Ramchandra Desai @ Deshmukh, Age about 45 years, Occu – Agriculture, 3. Mr.Vijay Ramchandra Desai @ Deshmukh, Age about 41 years, Occu – Service, 4. Mr.Nandkumar Ramchandra Desai @ Deshmukh, Age about 38 years, Occu – Profession, All are resident of Bhosgaon, Tal. Patan, Dist. Satara. 5. Mrs.Sarojini Pandurang Jadhav, Age about 47 years, Occu – Household, 6. Mrs.Mangal Chandrakant Shinde, Age about 42 years, Occu – Household, 5 and 6 are resident of Navpada, Dombivli (W), Dist. Thane. 7. Mrs.Radhika Krishnarao Ghatage, Age about 44 years, Occu – Household, R/o Ganpatrao Chougule Marg, 1/5 Shriram Nagar, Borivali (E), Mumbai – 400 066. 8. Mrs.Indumati Ramchandra Desai @ Deshmukh, Age about 72 years, Occu – Household, R/o Bhosgaon, Tal. Patan, Dist. Satara. ..... Petitioners V/s. 1. The State of Maharashtra, Through the Secretary, 2 Revenue and Rehabilitation Department, Govt. of Maharashtra, Mantralaya, Mumbai – 400 032. 2. The Divisional Commissioner (Resettlement), Pune Division, Pune. 3. The District Rehabilitation Officer, Satara. 4. The Special Land Acquisition Officer No.4, Satara. 5. Shri Yashwant Nana Desai (Patil), since deceased through his heirs and legal representative, 5A. Smt.Kamal Yashwant Desai @ Deshmukh (Patil) Age 55 yrs., Occu – Household, R/o Bhosegaon, Tal. Patan, Dist. Satara. 5B. Shri Dattatraya Yawhwant Desai @ Deshmukh (Patil), Age about 22 years., Occu – Agriculture, R/o Bhosgaon, Tal. Patan, Dist. Satara. 5C. Sau.Lalitadevi Jotiram Dhane, Age about 32 years, Occu – Household, R/o Ninam (Padali), Tal. Satara, Dist. Satara. 5D. Sau.Vijayalaxmi Udaykumar Patil, Age about 27 years, Occu – Service, R/o Near Jotiba Mandir, Mangalwar Peth, Karad, Dist. Satara. 5E. Kum.Ratnaprabha Yashwant Deshmukh, Age about 24 years, Occu – Service, R/o Bhosgaon, Tal. Patan, Dist. Satara. 6. Shri Krishna Nana Patil, Age about 55 years, Occu – Service, 3 R/o Bhosgaon, Tal. Patan, Dist. Satara. ..... Respondents Mr.Dilip Bodake, for the petitioners. Mr.V.S.Gokhale, AGP, for the respondents – State. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 23rd June, 2010 ORAL JUDGMENT ( PER R.M.SAVANT, J.) :- 1. This petition under Article 226 of the Constitution of India, takes exception to the Notification dated 18-12-1999 issued under Section 4 of the Land Acquisition Act, 1894 (brevities sake referred to as the said Act) and the declaration bearing No.LA/PR-7/P.N.K. 206/2000 dated 08-12-2000 under Section 6 of the said Act. 2. The factual matrix involved in the petition, can be stated thus : The petitioners are the heirs of one Ramchandra Desai @ Deshmukh. The petitioners’ grandfather was one Nana, who was the Karta of the Joint Hindu Family. The petitioners’ father was one Ramchandra, who had two brothers namely Yashwant and Krishna. The holding of joint family initially was 1 Hector 95 R, which was being cultivated by the grandfather of the petitioners. The petitioners’ father it appears, went in adoption on 04-09-1937 to one Putlabai Maruti Deshmukh Desai (Patil). On such adoption, the name of the petitioner’s 4 father Ramchandra was recorded vide mutation entry No.876 in respect of the lands, which the said Ramchandra had received on adoption. The said mutation entry was made on 24-10-1938. The grandfather of the petitioner, Nana, died on 27-10-1951 and therefore, by mutation entry No. 1278 and 248, the names of respondent Nos.5 and 6 herein (Yashwant and Krishna), were recorded in the 7/12 extracts as legal heirs and representatives of the said deceased Nana and as Karta/Manager of the joint family. Thereafter, mutation entry No.1452 came to be effected in respect of the said lands to the extent of 2/8 shares each in favour of respondent Nos.5 and 6 on 30-12-1955, which the petitioners claim was on account of fake and bogus surrender deed dated 01-06-1955. In so far as the question of the lands of the joint family is concerned, the crucial Notification for the purposes of the present petition, is the Notification dated 13-11-1996 issued under Section 13(1) of the Maharashtra Resettlement of the Project Persons Rehabilitation Act, 1986 (hereinafter referred to as the ‘Act of 1986). By the said Notification, the said Act of 1986, came to be applied in respect of Irrigation Project known as ‘Wang Project’. Thereafter, the gamut of process as contemplated under Section 14, came to be followed and ultimately in terms of the scheme, a recourse to the Land Acquisition Act, was taken for acquiring the lands in the “Benefited Zone”. 5 3. In so far as the said Wang project is concerned, the slab of six acres, which finds place in Part II of the Schedule of the said Act, came to be applied and since the holding of the joint family of the petitioners, was 2 H and 74 R on the date of the Notification dated 13-11-1996 and therefore, by applying the said slab of six acres, the lands above the said slab were notified under Section 4 of the said Act, on 18-12-1999. A notice under Section 5A, came to be issued to the said Yashwant, who was by then the Karta of the family. The said Yashwant participated in the said 5A proceedings and raised objection to the effect that the holding of the family was below the slab, as there were three branches. However, taking into consideration the law applicable, the said objection was overruled. Thereafter, a declaration under Section 6 of the Act, came to be issued on 08-12-2000, at which point of time, the instant petition came to be filed. 4. The above petition came to be admitted and interim relief came to be granted staying further proceedings in the matter of acquisition. As indicated above, the notification under Section 4 of the Land Acquisition Act, dated 18-12-1999 and the declaration under Section 6 dated 08-12-2000, are the subject matter of challenge in the above petition. 5. We have heard Mr.Bodake, learned counsel for the petitioners and Mr.Gokhale, AGP, appearing on behalf of the Respondents. 6 On behalf of the petitioners, learned counsel would contend that the authorities had erred in clubbing the lands which petitioner’s father Ramchandra had received in adoption with the lands owned by the genetic family i.e. joint family. It is contended that if the said land is excluded from consideration, then the holding of the joint family would fall below the slab that is made applicable to the said Wang Project. It is further contended that though the mutation entry was standing in the name of Yashwant i.e. Uncle of the petitioners and the brother of the petitioner’s father, the said mutation entry was set aside in the year 2003 and in the suit filed by the petitioners based on title, certain lands have been held to be of ownership of the petitioners. However, in view of the pendency of the present acquisition proceedings and in view of the bar in respect of the jurisdiction of the Civil Court, the land covered by the acquisition proceedings have been left out from the declaration issued by the Civil Court. 6. Per contra, the learned AGP submitted that the defining factor is the holding of the joint family on the crucial date i.e. 13-11-1996, on which date the Act of 1986 was made applicable and once it is held that the lands form part of the joint family property and if they are above the slab fixed, they would have to be subjected to compulsory acquisition for the public purpose concerned. The learned AGP submitted that the 7 lands in question stood in the name of petitioner’s father and thereafter, in the name of petitioner’s uncle Yashwant, who was the Karta of the family right from 1955 to the year 2003, when mutation entry in the name of Yashwant as Karta came to be set aside. The learned AGP further submitted that the decision of the Civil Court is of no consequence in so far as the acquisition is concerned as the defining date is 13-11-1996,when the Notification under Section 11 of the said Act of 1986, came to be issued. 7. Having considered the rival contentions, in our view, there is no merit in the above petition, inter alia for the following reasons. It is indubitable that the lands though, had came to Ramchandra on his adoption, were part of the joint family, of which the Karta was the petitioner’s grand father Nana and thereafter, Yashwant i.e. the brother of the petitioner’s father, in whose name the lands stood right from the year 1955. 8. In so far as the acquisition for the rehabilitation of the project affected persons is concerned, the crucial notification being the one issued under Section 11 of the said Act, the holding of the family as on the date of the said notification, is material for the purposes of the acquisition. On the said date i.e. 13-11-1996, the holding of the joint family being 2 H and 74 R was above the ceiling limit of six acres applicable to the Wang 8 Project, the said lands were therefore, subjected to compulsory acquisition. The contention of the learned counsel for the petitioner that the mutation entry effected in favour of Yashwant, was set aside in the year 2003 is of no avail as the crucial date i.e. 13-11-1996, on which date the land stood in the name of joint family and was the holdings of the joint family and which was admittedly above the slab fixed for the Wang Project. It would also be pertinent to note that the application for setting aside the mutation entry in favour of Yashwant was made in the year 2001, much after the said Notification dated 13.11.1996. 9. In the result, we do not find any infirmity in the action of the respondents in issuing notification under Section 4 and the declaration under Section 6 of the said Act, as admittedly, the holding of the joint family was above the slab. In the circumstances, the petition would have to be dismissed and is accordingly dismissed. Rule discharged. 10. However, we make it clear that in terms of the decision of the Civil Court if any, the petitioners herein would be entitled to raise their objections in respect of the compensation to be awarded for the lands in question, if there is any declaration in their favour in respect of any of the lands of the erstwhile joint family. If such objection is raised, the concerned authority would consider the same on its own merits and in accordance with law. The observations if any, as regards the lands in 9 question being joint family lands, are only in the context of the acquisition of the lands under the Act of 1986 Act and for the application of the slab concerned and would not come in the way of the parties in agitating their grievance in respect of the title before the appropriate Civil Court. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )