1 Anando IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4035 OF 1999 Chimaji Subrao Kakade & ors ..Petitioners V/s. The State of Maharashtra & ors ..Respondents Mr.Prashant D. Patil, Advocate, for the Petitioners Mr.C.R.Sonawane, Assistant Government Pleader, for the Respondents CORAM : A.M.KHANWILKAR & R.M.SAVANT, JJ. DATE : 22ND MARCH, 2010 P.C. . Heard Counsel for the parties. 2. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners have assailed notices under Sections 4 as well as 6 and 9(3)(4) of the Land Acquisition Act in respect of land bearing Gat Nos.249 (part) and 92 (part) situated at village Dhavleshwar, Taluka 2 Khanapur, District Sangli. The appropriate authority issued Notification under Section 11 of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 on 14th October, 1997 including the village Dhavleshwar, Taluka Khanapur, District Sangli for acquisition to re-settle the project affected persons. Later on, notice under Section 4 of the Land Acquisition Act came to be issued on 11th February, 1999 including the lands owned by the Petitioners herein. Thereafter, Section 6 Notification was issued including the lands owned and possessed by the Petitioners for the purpose of proposed acquisition inspite of the objections filed by the Petitioners. The enquiry before the Special Land Acquisition Officer proceeded further and notices under Section 9(3)(4) were also issued. At this stage, the Petitioners have approached this Court by way of present Writ Petition. 3. Although, the Petition is admitted 3 long back, no reply has been filed by the Respondents to counter the assertions made in the present Writ Petition. The assertion made on behalf of the Petitioners is that no opportunity of hearing was given to Petitioners as required under Section 5A of the Land Acquisition Act. The fact that the Petitioners had filed objections or for that matter, opportunity under Section 5A was not given to the Petitioners, has remained uncontroverted. On this singular basis we are of the view that the notices issued under Section 6 and all steps taken thereafter, by the Special Land Acquisition Officer qua the disputed land cannot be sustained as the same are vitiated. 4. Indeed, one of the argument canvassed before us is that Section 4 notice has been issued against the father of the Petitioners in the year 1999, when in fact the father had expired long back in the year 1993. In other 4 words, notice under Section 4 was issued against the dead person. However, this argument does not commend to us. Inasmuch as, there is nothing to indicate that intimation regarding death of Petitioners' father was given to the Revenue authorities. Notice under Section 4 was issued against the Petitioners predecessor on the basis of Revenue record made available to the Special Land Acquisition Officer. Therefore, it is not open to the Petitioners to contend that the Notification under Section 4 is also vitiated. The grievance of the Petitioners is that in any case, considering the holding of the respective Petitioners, the proposed acquisition was impermissible in view of the Scheme of the Resettlement Act. According to the Petitioners, they had already filed a Suit for partition in the year 1995 and the said Suit was decreed on 28th August, 1998. It is the case of the Petitioners that as per the Circular issued by the Commissioner, Pune, on 5 the basis of policy decision of the State, the Authority would be obliged to take into account the fact that all the family members of the Petitioners had identified shares in terms of the Decree passed in their favour and if the said share was to reckoned, the holding of the respective Petitioners would be far less than the holding specified in the provisions of the Resettlement Act. However, we express no final opinion on the aforesaid contention since we are relegating the Petitioners before the Special Land Acquisition Officer to provide opportunity of being heard to the Petitioners as is required under Section 5A of the Land Acquisition Act. All these aspects will have to be decided on its own merits and in accordance with law. We keep all the contentions open to be answered by the Special Land Acquisition Officer. 5. Accordingly, Petition partly succeeds. We set aside the impugned Notification under 6 Section 6 as well as notices under Section 9(3)(4) of the Land Acquisition Act and relegate the Petitioners before the Special Land Acquisition Officer to proceed with the enquiry from the stage under Section 5A of the Act and give opportunity to the Petitioners of being heard in the matter. 6. We hope & trust that the Special Land Acquisition Officer will consider all issues raised by the Petitioners in the present Petition as also to be raised during the hearing on its own merits and pass final order expeditiously, not later than six months from today. 7. Petition is allowed on the above terms with no order as to costs. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)