Sharad Jijaba Kakade and Sandip Jijaba Kakade vs Land Acquisition Officer and The State of Maharashtra

V.G. Palshikar, J.—By this petition, teh petitioner has challenged teh order passed by the Additional Commissioner deliberately in exercise of his powers u/s 48 of the Land Acquisition Act 1894.

Facts necessary for proper adjudication of this petition stated briefly are as under:

That the petitioners were members of teh joint Hindu Family and the family had ancestral land which was recorded in teh name of Bajirao Balaji Kakade who is the paternal uncle of the petitioners. Regular Suit No. 141/86 was filed by the said Bajirao Balaji Kakade in the year 1986 for partition and separate possession of ancestral property, which was till then held by teh joint family. This suit was decree ultimately in 1994 but even prior thereto requests were made for mutation and even the notice was sent on 23rd May 1997 to correct the revenue record by pointing out that the holding of the petitioner was less than eight acres.

A notification u/s 11 of the Maharashtra Resettlement of Project Displaced Persons Act 1976 was issued in teh year 1989 i.e. prior to institution of the suit for partition and separate possession. However ignoring this aspect that u/s 16 therefore the acquisition even under the Land Acquisition Act of 1894 cannot take place in relation to a piece of land less than eight acres. Obviously the holding of the petitioner after partition in 1986 is less than eight acres and therefore notice was sent pointing out to the acquisition officer after issuance of Section 4 of the notification that the lands of the petitioner are not liable to be acquired. This representation was rejected on teh ground that factual partition was not there and the revenue records were not corrected. Consequently the authority would go by the revenue record, with the result Section 6 and 9 of the notification was issued thereafter. It is in these circumstances, that the present petition is filed assailing the action of the respondent, in including the land of the petitioner in the acquisition proceedings even after the notice issued in May 1997. The proceedings are still pending and petitioner has received notices u/s 9 of the Act. In view of the clear legal position, we are unable to accept the contention of the State that there is no error in calculating the land of the petitioner for acquisition though there are less than eight acres. According to the State itself therefore, the correct law applicable is the Re-settlement Act of 1976 and yet they defend the action of ignoring Section 16 of that Act. The State in this respect has clearly stated in its reply that:

I say that the writ petition in question is ill-conceived at not maintainable in the eyes of law. The petitioners have made the mess of the facts regardless of the set of law applicable to the Land Acquisition Proceedings challenged by this writ petition. I say that the correct law applicable to teh present Law Acquisition Proceedings is the Maharashtra Resettlement of Project Displaced Persons Act, 1976 and the notification issued u/s 11 of the above Act are teh relevant provisions of law applicable in the matter of Land Acquisition proceedings. The petition therefore must succeed and is allowed. The respondents are directed to delete the holdings of the petitioner from the acquisition proceedings as the holding of the petitioner after the partition in 1986 is less than eight acres.

The petition therefore must succeed and is allowed. The respondents be directed to delete the holdings of the petitioner after the partition in 1986 from the acquisition proceedings as his land is less than eight acres.