Shri Gulab Mahmood Herwade and Others vs The State of Maharashtra and Others

P.D. Upasani, J

The Petitioners, by this Writ Petition, are challenging the acquisition of their agricultural land bearing Gat No. 567(p) and 663(p), admeasuring 0 hector, 44 acres, and 1 hector, 54 arcs respectively, situated at Village Pattankodoli, Taluka Hatkanangale, District Kolhapur. The land in question was sought to be acquired by the Respondents for public purpose of resettlement of Doodh Ganga Dam Project affected persons.

The main grievance of the Petitioners, appears to be that their father Mr. Mahmood Hasan Herwade, who owned and possessed the suit lands, died after Notification u/s 4(1) was published, but that, all subsequent acquisition proceedings continued to be in the name of the deceased Mahmood Hasan Herwade only, including the Award which was passed by Respondent No. 2 on 20th of May, 1988 u/s 11 of the Land Acquisition Act, 1894, and the notice u/s 12(2) of the said Act was also issued in the name of the deceased lather.

Another contention of the Petitioners is that Declaration u/s 6 was published on 17th April, 1986, while award u/s 11 was made on 20.05.1988, and thus, it was not made within the statutory period of two years under the Land Acquisition Act. It is therefore contended by the Petitioners that the entire acquisition proceedings have lapsed under the provisions of Section 11A. They have therefore, prayed that the acquisition proceedings be set aside and quashed.

It is also contended by the Petitioners that land admeasuring about 17 acres, 18 gunthas, was not fit for cultivation, and therefore, it had to be excluded from the total holdings of the Petitioners.

The Special Land Acquisition Officer No. 10, Kolhapur, namely, Respondent No. 2, has filed his affidavit-in-reply dated 8th March, 1991, wherein, he has denied the contentions of the Petitioners. We have perused the same. We have also heard both the counsel at length.

As far as contention of the Petitioners that all the acquisition proceedings were continued in the name of a dead person, it has to be said that though the original land holder namely, Mahmood Hasan Herwade died after Section 4 Notification was issued, his sons, who are the legal heirs of Mahmood Hasan Herwade, very much participated in the acquisition proceedings. It therefore, cannot be said that any prejudice was caused to them. Therefore, this contention of the Petitioners does not hold any water.

As far as the second contention of the Petitioners is concerned, Respondent No. 2, in his affidavit-in-reply has highlighted certain dates. It is pointed out that Section 4 Notification was issued on 12.12.1983 and published in the official Government Gazette on 5th January, 1984. Enquiry u/s 5A was held on 6th April, 1984. Declaration u/s 6 of the Land Acquisition Act, 1894, was made on 17th April, 1986. Enquiry u/s 9(3)(4) was held on 28.05.1986. Publication in the news papers namely, daily "Sakad" and daily "Samaj" was on 23.05.1986, and 24.05.1986, respectively. Therefore, Award which was made on 20th May, 1988, was obviously within the prescribed statutory period of two years. Therefore, this contention of the Petitioners counsel, also has to be rejected.

The third contention of the Petitioners that their land admeasuring 17 acres and 18 gunthas ought to have been excluded while counting their total holding, as it was not fit for cultivation, in view of the Division Bench Judgment of our High Court, reported in Laxmanrao Dauji Chunarkar Vs. State of Maharashtra and Others, (Coram : V.A. Motha and M.B. Ghodeswar, JJ).

Thus, though all these three contentions taken by the Petitioners have failed, we have not lost sight of the legal position that the Petitioners are Muslims, and therefore, as per the principles of Mohammedan Law, on the death of their father Mahmood Hasan Herwade, the Petitioner along with their sister Aziza Begum Ibrahim Contractor have inherited the property of their father as tenants- in-common. The total holding of the deceased Mahmood Hasan Herwade was 22 acres and 21 gunthas. The Petitioners are admittedly Muslims, and are governed by Mohammedan Law, wherein, there is no concept of joint family. Under the provisions of Mohammedan Law, on the demise of the deceased Mahmood Hasan Herwade, both the Petitioners who are the sons of the deceased, so also, their sister Aziza Begum Contractor, inherited the said land and held the same as tenants-in-common, each having specified share therein. The separate holding of each Petitioner was thus less than the prescribed limit of 8 acres as mentioned in Schedule A Part II of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. Despite this legal position, the Respondents came to the conclusion that the land held by the Petitioners was in excess of the permitted ceiling, as envisaged in Schedule A Part II r/w. Section 16 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. This obviously was erroneous view on the part of the Respondents. We therefore, hold that the total holding of the Petitioner is less than 8 acres, and therefore, the acquisition proceedings have to be set aside and quashed.

The Writ Petition thus succeeds. Rule is made absolute in terms of prayer Clause (iv) of the Petition. No costs.