2002(3) ALL MR 180
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA AND D.B. BHOSALE, JJ.

Mahadeo Ramgonda Patil & Ors. Vs. State Of Maharashtra & Ors.

Writ Petition No. 91 of 1991

27th November, 2001

Petitioner Counsel: Mr. T. S. INGALE
Respondent Counsel: Mr. S. R. NARGOLKAR

(A) Maharashtra Resettlement of Project Displaced Persons Act (1976), Ss.2(10), 2(15), 11, 12, 16 r/w Part II, Sch.A, Cl.(b) - Maharashtra Land Revenue Code (1966), Ss.2(23), 2(12) - Land Acquisition Act (1894), Ss.4, 6 - "Holding" - Size of - Determination - Mortgaged land - Held, term 'occupant' in S.2(10) means person in possession or actual enjoyment of land - Mortgagee supposed to be in lawful possession and thus 'a landholder lawfully in possession' - He is covered in definition of "to be a landholder" U/S.2(12) of the Code - Such Mortgagee covered by definition of 'holding' U/S.2(10) - His lands to be clubbed into his holdings in determining his total holdings on date of publication of notification U/S.11. (Para 7)

(B) Maharashtra Resettlement of Project Displaced Persons Act (1976), S.12 - Transfer of Property Act (1882), Ss.56, 60 - Restriction on transfer, sub-division, etc. of land in notified area - Scope - Mortgaged lands - Held, restoration of possession of mortgagor does not amount to transfer U/S.12. (Para 8)

JUDGMENT

D. B. BHOSALE, J. :- The petitioners seek to challenge the acquisition of their land for the purposes of resettlement of Dudhaganga Project affected persons. The petitioners have also prayed for quashing and setting aside of the notice under section 4, dated 9th August, 1990 and section 6 notification of the Land Acquisition Act, 1894 (for short, "Act of 1894"), as published in the newspaper on 29th November, 1990, qua their land Gat No. 1551 admeasuring 81 Ares, situate at village Abdul-Lat, Taluka Shirol, District-Kolhapur.

2. Now, before we look at the relevant provisions and consider the challenge made, it would be perhaps better just to state briefly what credentials of the petitioners are and what is the ground for this petition. The petitioners are the heirs and legal representatives of the original landlord Ramgonda Patil. According to the petitioners, their total holding is within the permissible limit and not liable to be acquired under the provisions of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short, "Act of 1976"). Though the petitioners filed their objections under section 5A of the Act of 1894, against the proposed acquisition of the said land and raised several objections, they have restricted their challenge in the present writ petition only on the ground that the impugned land in their possession cannot be clubbed with their other lands, while determining the total holding of the petitioners for the purposes of the Act of 1976.

The petitioners have contended that one Shripat Rayande and Gopal Rayande had mortgaged their lands admeasuring 2 hectares and 66 Ares to the petitioner's father Ramgonda Patil and put him in possession thereof as a mortgagee. In 1968, Civil Suit No.6 of 1968 was filed by the said Rayande for redemption of the mortgage and possession of the land Gat nos. 1342, 1353 and 1368 admeasuring 2 hectares and 66 Ares (for short, "the suit lands"). The suit was decreed in 1968 itself and the First Appeal carried by the petitioners in this Court, bearing First Appeal No.540 of 1969, was dismissed and the decree was confirmed.

Feeling aggrieved by the judgment and order passed in the First Appeal, the petitioners preferred Civil Appeal No. 750 of 1973 before the Apex Court. The Apex Court dismissed the said Appeal by its judgment and order dated 22nd April, 1988. It appears that the said Rayande, thereafter, obtained possession of the suit land on 3rd January, 1989 in the execution proceedings, being Special Darkhast proceeding no.42 of 1973.

Further, it is the case of the petitioner that Regular Civil Suit No. 137 of 1978 was filed for partition and separate possession and it was decreed on 16th December, 1978 and petitioner no. 2 was given one hectare and 69 Ares and petitioner no. 2 was allotted 2 hectares and 93 Ares of the lands and in view thereof, no land of either of the petitioners is liable to be acquired under the provisions of the Act of 1976.

3. The argument advanced by Mr. Ingale, learned counsel for the petitioners is of two-fold. Firstly, that the suit lands were wrongly included in the total holding of the petitioners, resultantly, their total holding has crossed the higher limit prescribed under the Act of 1976. The higher limit fixed in the present petition under clause (b) of Part II of Schedule A, of the Act of 1976, was 3 Hectares and 23.75 Ares, i.e. 8 Acres. According to the petitioners, the mortgage land in their occupation, is not covered within the definition of "holding" under section 2(10) of the Act of 1976 and, therefore, they cannot be termed as "occupants" of the suit lands within the meaning thereof. Secondly, he contended that restoration of possession of the suit lands to the original landlord in the Darkhast proceedings is not hit by section 12 of the Act of 1976, and, according to him, as on the date of issuance of the notification under section 4 of the Act of 1894, the petitioners had already surrendered the suit lands in the execution proceedings on 3rd January, 1989 and, therefore, could not have been clubbed with their other lands. Mr. Nargolkar, learned Assistant Government Pleader for the respondents, in opposition, contended that the suit lands in possession of the petitioners fall within the meaning of definition "holding" and it was rightly included in their holding. In support of this contention he invited our attention to section 2(15) of the Act of 1976, which provides that the words and expression used in the Act of 1976, but not defined, shall have the meanings respectively assigned to them in the Maharashtra Land Revenue Code, 1966 (for short, "Code"). Our attention was, thereafter, further invited to the definition of "occupant" under section 2(23) of the Code and he contended that even the mortgagee in possession is also covered within the meaning of "holding" defined under section 2(10) of the Act of 1976. In view thereof, Mr. Nargolkar submitted that the holding of the petitioners exceeds the limit prescribed under clause (b) of Part III of Schedule A of the Act of 1976 and is, therefore, liable to be acquired for the resettlement of project displaced persons.

5. We heard the learned counsel appearing for the parties at length and with their assistance gone through the record and also the relevant provisions of the Act of 1976 and of the Code. In the present petition, what we require to decide is, whether the suit lands are covered by the definition of "holding". In other words, whether the petitioners are "occupants" within the meaning of definition of "holding" under section 2(10) in respect of the suit lands and it is liable to be included to the total holding of the petitioners and declare them surplus under the provisions of the Act of 1976. The another issue, falls for our consideration, is whether the redemption of mortgage and restoration of possession in pursuance thereto, is hit by the provisions of section 12 of the Act of 1976.

6. Now before we consider the challenge in the present petition, it would be advantageous at this stage to refer to the relevant provisions of the aforesaid Acts, for better appreciation of the submissions advanced before us. Section 11 of the Act of 1976 provides that if the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may declare that the provisions of the Act of 1976 shall apply in relation to the project specified in the notification. The notification issued under this provision supposed to specify the villages or the areas, which are likely to be in the affected or benefited zone. Such notification in the present case was issued on 2nd November, 1978. Section 12 of the Act of 1976 imposes restrictions on transfer, sub-division or partition of the land in the benefited zone. Section 12 reads thus :

"12 (1) Notwithstanding anything contained in any law for the time being in force, no land in the villages or areas specified in the notification under section 11 shall, after publication of that notification in the Official Gazette, and until the Deputy Director makes a declaration to the effect that all proceedings for the acquisition of lands in the benefited zone are completed, be-

(a) transferred, whether by way of sale (including sale in execution of a decree of a civil court or of an award or order of any other competent authority) or by way of gift, exchange, lease or otherwise,

(b) sub-divided (including sub-division by a decree or order of any court or any other competent authority), or

(c) partitioned (including partition by a decree or order of any court or any other competent authority), except with the permission in writing of the State Government.

(2) The State Government may refuse to give such permission if in its opinion the transfer, sub-division or partition of land is likely to defeat the object of this Act or may ... ...

(3) Any transfer, sub-division or partition of land made in contravention of sub-section (1) shall be void and inoperative."

Under this provision, Subdivision, partition or any transfer after publication of notification under section 11, without prior permission of the State Government shall be void and inoperative. Section 16 gives power to the State Government to acquire land for the purposes of this Act and sub section (4) thereof, empowers the State Government to acquire land, according to the provisions of Part II of Schedule A, thereto. Sub-section (4) of Section 16 reads thus :-

"16.(4). For the purpose of resettling displaced persons on land, the State Government may, subject to any rules made in this behalf, acquire land from holdings in the benefited zone or from any village or area specified under section 10 as far as practicable according to the provisions of Part II of Schedule A hereto."

In the instant petition, undisputedly, the petitioners' case is covered under clause (b) of Part II of Schedule A and the proviso thereto, of the Act of 1976. Clause (b) of Part II of Schedule A and the proviso read thus :

Schedule A of Part II, clause (b):

Size of the holding

(b) More than 3 Hectares and 23.75 Ares (8 acres) and not more than 4 Hectares and 85.62 Ares (12 acres).

Area to be acquired in Hectares.

The area in excess of 3 Hectares and 23.75 Ares (8) acres but not more than 80.94 Ares (2 acres)"

"Provided that in the case of a holding falling under clause (b) no land from such holding be acquired if the acquisition results in reducing the size of the holding to less than 3 Hectares and 23.75 Ares (8 acres)."

The petitioners' total holding, including the suit lands, is 4 Hectares and 61 Ares, therefore falls under the aforesaid clause. The expression "holding" referred in this provision is defined under Section 2(10) which reads thus:

"holding" means the total land held by a person as occupant or tenant or as both."

The expression "occupant" in the definition of holding has not been further defined under the Act of 1976. However, sub-section (15) of section 2 provides that the words and expressions used in the Act of 1976 but not defined shall have the meaning respectively assigned to them in the Code. In view thereof, we looked into the provisions of the Code and found that the word "occupant" is defined under section 2(23) which reads thus:-

"(23) "Occupant" means a holder in actual possession of unalienated land, other than a tenant or Government lessee; provided that, where a holder in actual possession is a tenant the land holder or the superior landlord, as the case may be, shall be deemed to be the occupant."

The definition of "to hold land" or "to be a land-holder or holder of land" as defined under section 2(12) of the Code is also relevant in the present petition, to determine whether the petitioners could be termed as "land holders" or "holder of land". The said definition reads thus :-

"to hold land" or "to be a land holder or holder of land" means to be lawfully in possession of land, whether such possession is actual or not."

7. In the light of the aforesaid provisions, we shall, now, consider the submission of Mr. Ingale, learned counsel for the petitioner. However, before we proceed, we would like to note the relevant dates of the notifications under the provisions of the Act of 1976 and Act of 1894. The notification under section 11 of the Act of 1976 was issued on 2nd November, 1978. Section 4 notification under the Act of 1894 was issued on 5th July, 1990 and the notice under section 4(1) was issued to the petitioners on 9th August, 1990. Section 6 notification under the Act of 1894 was issued on 25th November, 1990.

The first question we would like to deal with is whether the lands held by the petitioners as mortgagee could be clubbed with other lands of the petitioners, for determination of total holding of the petitioners as on the date of notification under section 11 or in other words the petitioners could be treated as "occupants" in respect of the suit lands. The definition of "holding" under section 2(10) provides that the total land held by a person as an occupant or tenant or as both. The petitioners in the present case were admittedly in possession of the suit lands as mortgagee. The original landlords of the suit lands had filed civil suit for redemption of mortgage and possession of the suit lands in the year 1968. Those proceedings carried right upto the Supreme Court. The Apex Court by its judgment and order dated 22nd April, 1988 dismissed the appeal filed by the present petitioners. When the notification under section 11 was issued in the year 1978, Civil Appeal No. 750 of 1973 filed by the present petitioners, was pending before the Supreme Court and the stay was obtained pending the hearing and final disposal of the appeal. The facts further disclose that after dismissal of the appeal on 3rd January, 1989, the original landlord of the suit lands obtained possession from the petitioners in Special Darkhast No. 42 of 1973. In view of this, we shall have to examine whether as on the date of issuance of the notification under section 11, i.e. 2nd November, 1978, the petitioners were holding the land within the meaning of section 2(10) and can be treated as occupants of the suit land. The word "Occupant" appearing in the definition of holding has not been further defined under the Act of 1976. Therefore, we have taken recourse to the definition of "occupant" under the provisions of the Code. Section 2(23) of the Code defines "occupant" which means holder in actual possession and where a holder in actual possession is a tenant, the land holder or the superior landlord, as the case may be, shall be deemed to be the occupant. Even the plain reading of the word "occupant" as appears in the definition of "holding", in our opinion, would mean a person holding the land in possession or actual enjoyment. It signifies occupancy and enjoyment. Similarly "to hold land" or "to be a land holder or holder of land" means to be lawfully in possession of land. In our view, therefore, if the definition of "occupant" is read with definition of "to hold land" or "to be a land-holder or holder of the land" under section 2(12) of the Code, in our view, even the mortgagee is also covered under the definition of "occupant". The mortgagee is supposed to be in lawful possession of the land and, therefore, he shall have to be treated as landholder lawfully in possession of land, within the meaning of definition of "to be land holder" under section 2(12) of the Code. It is not disputed that the possession of the petitioners in the suit land was lawful, inasmuch as till the disposal of Civil Appeal No. 750 of 1973 pending in the Supreme Court in which the interim stay was also running in favour of the petitioners and by virtue of that the possession of the petitioners continued till the execution proceedings were concluded on 3rd January, 1989 and the possession was restored to the original landlords. The possession of the petitioners till then was continued as a mortgagee and they were holding the suit land lawfully. In view of this, we have no hesitation to hold that the petitioners were in lawful possession of the suit land as mortgagees and, therefore, they are covered by the definition of word "holding" under section 2(10) of the Act of 1976. The submission of Mr. Ingale, learned counsel for the petitioners, cannot be sustained. In our opinion, the suit land was rightly clubbed into the holdings of the petitioners while determining their total holding as on the date of publication of notification under section 11.

8. The next issue falls for our consideration is whether the restoration of possession of the suit land in the execution proceedings on 3rd January, 1989, is hit by the provisions of section 12 of the Act of 1976 and if not, whether the petitioners' land, after excluding the suit land, would be liable to be acquired, and to what extent. Section 12 provides that no land in the villages or areas specified in the notification under section 11 shall be transferred, subdivided, or partitioned except with the permission in writing of the State Government. Meaning thereby that if the land is transferred, subdivided or partitioned without permission of the State Government, it shall not be taken into account while determining the total holding of the landlords within the notified area. In the present case, we need not consider the restrictions, such as subdivision or partition since the present case is of mortgage and redemption of mortgage.

We, therefore, now proceed to consider whether the redemption of mortgage and restoration of possession in January 1989 could be treated as transfer within the meaning of section 12. Under this provision, no land in the notified area under section 11 shall be transferred either by way of sale including sale in execution of a decree of a civil court or of an award or order of any other competent authority or by way of gift, exchange, lease or otherwise. Looking to the provisions of Section 11, we shall have to consider the expression "otherwise" to see whether redemption of mortgage would be covered by the expression otherwise. In other words, whether redemption of mortgage would also amount to transfer within the meaning of section 12 of the Act of 1976.

Section 56 of the Transfer of Property Act, 1882 (for short, "Act of 1882") defines mortgage, mortgagor and mortgagee. A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor or the landlord is called a mortgagor and the transferee a mortgagee. Out of six kinds of mortgages, viz. simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title-deeds and anomalous mortgage, in usufructuary mortgage, the mortgagor delivers possession or binds himself to deliver possession of the mortgaged property to the mortgagee. In the instant petition, undisputedly the possession was delivered to the father of the petitioners by the landlord of the suit land. Under section 60 of the Act of 1882, on payment of the mortgaged money, mortgagee requires to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. In view thereof, in our opinion, delivery of possession to the mortgagor would not amount to transfer of the land and it would only mean restoration of land to the original landlord. Restoration of possession, therefore, cannot be said to be a transfer and is not hit by the provisions of section 12.

9. Having taken the view that redemption of mortgage is not hit by section 12, we now require to consider whether on the date of issuance of the notification under section 4, i.e. on 7th July 1990, what was the holding of the petitioners. Admittedly, the possession of the suit land was restored on 3rd January, 1989 and the notification under section 4 of the Act of 1894 was issued on 5th July, 1990 which shows that the land was restored to the original landlord in the execution proceedings before issuance of the notification under section 4. In other words, on the date of issuance of the notification under section 4, the suit land was not in possession of the petitioners. Therefore, after exclusion of the suit land from the total holding of the petitioners, if the balance holding exceeds the limit under Clause (b) of Part II of Schedule "A" of the Act of 1976, then alone the surplus holding shall be liable for acquisition. The total holding of the petitioners including the suit land was 4 hectares and 61 Ares.

Though originally, the mortgaged land was 2 hectares and 66 Ares, in so far as the petitioners are concerned, only half land was allotted to the petitioners in partition much prior to issuance of notification under section 11, and this is not disputed by the respondents. The remaining 1 hectare and 33 Ares of the land was included by the concerned authority in the holding of the other son of Ramgonda, viz. Shankar, who is petitioner no.1 in companion writ petition no. 92 of 1991. Therefore, after deducting 1 hectare and 33 Ares from the total holing of 4 hectares and 66 Ares, the holding of the petitioners will reduce to 3 hectares and 28 Ares. Clause (b) of Part II of the Schedule "A" provides that if the size of the holding is more than 3 hectares and 23.75 Ares, i.e. 8 acres and not more than 4 hectares and 85.62 Ares, i.e. 12 acres, an area to be acquired will be the area in excess of 3 hectares and 23.75 Ares, i.e. (8 acres), but that shall not be more than 80.94 Ares (i.e. 12 acres). The proviso to Part II of Schedule "A" of the Act of 1976 provides that in the case of a holding falling under clause (b), no land from such holding shall be acquired if the acquisition results in reducing the size of the holding to less than 3 hectares and 23.75 Ares (i.e. 8 acres). In the present case, the petitioners' holding exceeds hardly by 8 Ares.

10. At this stage, we would like to make reference to the Maharashtra Project Affected Persons Rehabilitation Act, 1986. This Act was enacted to consolidate and amend the law relating to rehabilitation of persons affected by certain projects in the State of Maharashtra and for matters connected therewith or incidental thereto. All the acquisitions for the resettlement of project affected persons after 1.1.1990, i.e. the date on which the Act of 1986 came into force, were made under the provisions of this Act. In this Act, in Part II of the Schedule, five slabs are provided and in the second proviso thereto, it is specifically provided that the land to be acquired according to any slab shall not be less than 20 Ares or consist of an area which, under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short, "Act of 1947") is a fragment, incapable of disposal as an independent piece of cultivable land. Such proviso has not been provided in part II of Schedule of the Act of 1975. Strictly speaking, therefore, that there is no legal or technical bar for the respondents to acquire even 8 Areas of the land which is found surplus in the present petition. However, we are of the view that under any circumstances the provisions of the Act of 1947 cannot be violated and committed breach of, if 8 Ares of the land is a fragment and incapable of disposal as an independent piece of cultivable land. However, we leave it to the concerned authority to apply their mind and decide whether to acquire 8 Ares of the land or not keeping in view the above observations. Learned counsel appearing for the parties also could not tell us as to whether 8 Ares of the land is a fragment under the Act of 1947. In the circumstances, we hold that the petitioners are holding surplus land to the extent of 8 Ares only and is liable to be acquired under the provisions of the Act of 1976 subject to the provisions of the Act of 1894.

11. In the result, the petition is allowed. The notice under section 4, dated 9th August, 1990, and section 6 notification as published in the newspaper on 29th November, 1990, qua the land Gat no. 155, admeasuring 81 Ares situate at village Abdul-lat, Taluka Shirol, District-Kolhapur, are quashed and set aside.

Rule made absolute accordingly. No costs.

Petition allowed.