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Gnanpat Balwant Pawar and ors. Vs. the Special Land Acquisition Officer No. 7 and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1094 of 1979
Judge
Reported in1984(2)BomCR166; (1984)86BOMLR269; 1984MhLJ752
ActsMaharastra Resettlement of Project displaced Persons Act, 1976 Sections 10 and 11(1); Land Acquisition Act, 1894
AppellantGnanpat Balwant Pawar and ors.
RespondentThe Special Land Acquisition Officer No. 7 and ors.
Appellant AdvocateH.D. Gle, Adv.
Respondent AdvocateW.S. Devnai, Addl. Govet. Pleader
Excerpt:
maharashtra resettlement of project displaced persons act (mah. xli of 1976), sections 10(1), 11, 13, 14, 15, 16(2), 2(12) - land acquisition act (i of 1894) sections 4, 6, 9, 30 -- acquisition of lands for resettlement of project affected persons under land acquisition act after coming into effect of mah. act 41 of 1976 whether illegal -- procedure for acquisition under mah. act 41 of 1976 when applicable -- nature of obligation or duty cast on state government by section 10(1) of mah. act 41 of 1976 -- petitioners holding in one single account lands more than ten acres -- partition on disruption between petitioners not shown -- acquisition proceedings whether can be challenged on ground of improper implementation of mah. govt. resolution dated october 31, 1969.;section 10 of the.....jahagirdar, j.1. this is a petition under arts. 226 and 227 of the constitution challenging the acquisition of lands belonging to the petitioner under the provision oof the land acquisition act, 1894. a notification under section 4 of the land acquisition act was issued on 2nd aug. 1978 under which 81 cares of gat no. 866 belonging to the petitioner and situated at villages udatate is wai taluka of satara district was intended to be acquired for a public purpose. the stated public purpose is the resettlement of project affected person due to the krishna dam project. the total holdings of the petitioner as mention by them is 10 acres and 131|2 gunthas equivalent to 4 hectares and 14 acres.eighty one acres are being acquired from one of the land belonging to the petitioner probably by.....
Judgment:

Jahagirdar, J.

1. This is a petition under Arts. 226 and 227 of the Constitution challenging the acquisition of lands belonging to the petitioner under the provision oof the Land Acquisition Act, 1894. A notification under Section 4 of the Land Acquisition Act was issued on 2nd Aug. 1978 under which 81 cares of GAt No. 866 belonging to the petitioner and situated at villages Udatate is Wai Taluka of Satara District was intended to be acquired for a public purpose. the stated public purpose is the resettlement of project affected person due to the Krishna Dam Project. The total holdings of the petitioner as mention by them is 10 Acres and 131|2 Gunthas equivalent to 4 Hectares and 14 Acres.Eighty one ACres are being acquired from one of the land belonging to the petitioner probably by applying what is now known as the slab system under a Government Resolution dt. 31st Oct. 1969, to which we will make a reference shortly.

2. The acquisition is challenged on two grounds . In the first place , it has been mentioned that the acquisition which is being made from the petitioners land under the Land Acquisition Act of the public purpose of resettlement of the project affected persons is illegal inasmuch as acquisition for the said public purpose could not be made under the Land Acquisition ACt. The basis of this challenge is a judgement of a Division Bench of this Court in Pandurang Akali Dawale V State of maharastra. Special Civil Appln. No. 915 of 1977 (along with others ) decided by Masodkar J. (with Ginwala J. ) on 17th | 8th Oct. 1977. According to the petitioner, this judgment of the Division Bench clearly states that if the state Government wants to acquire land the for the public purpose of resettlement of project-affected persons, that acquisition can be made only under the Maharastra Resettlement of Project Displaced Person Act, 1976, hereinafter referred to as 'the Resettlement Act' and not under the provision.

3. It has also been urged on behalf of the petitioners that the petitioners together hold 4 Hectares and 14 Acres of land, but each of the petitioner is the owner of only one-fourth of the said lands., It has been mentioned in the petition that the total holding of the joint family was originally 10 Acres and 141|2 Gunthas, but subsequently each of the four petitioner was allotted only 2 Acres and 24 Gunthas , but subsequently. According to the petitioner ,as per the Government Resolution dt. 31st Oct. 1969, it is only from a single account of 10 Acres or more that land can be acquired for the or purpose of resettlement of project displaced persons. Since in the present cse each of the petitioner is in fact and in lwa the owner of only one-fourth of 10Acres and 141|2 Gunthas , it should be held that the holding of each of the petitioners is only 2 Acres and 24 Gunthas. If this is so, under the Government Resolution itself, which occupies the field, no land is liable to the be acquired from the holding of any of the petitioners.

4. Some background information, both factual and legal is necessary to give in the instant case. It is well-known that several projects are being undertaken all over the country and especially in Maharastra. Many of these projects are the construction of dams for the purpose of irrigation and for the purpose are generation of electricity. When such projects are undertaken , they involve the displacement of persons from the lands covered by those projects. These are displaced persons. The question of resettlement of thse person a had engaged the attention of the Government from the time to time. Prior to the coming into force time of the Resettlement Act, the Government had give executive instructions from time to tme and had also issued a resolution dt. 31st Oct. 1969, which is probably the resolution made applicable to the acquisition in the instant case. This resolution of 31st Oct. 1969 ahd been judicially noticed by ths Court : AIR1977Bom355 . It has been mentioned in that resolution that a separate machinery for speedy settlement of the project affected persons was necessary and, therefore, a Directorate of Settlement had been created in Sept. 1965. It was also mentioned that in order to grant alternative agricultural land to the project affected persons the land was to the procedure from various sources. The four sources which have been referred to in the Government Resolution were found to be inadequate. As a result, it was decided that the land should be acquired form the benefited zone and distributed to those whose lands are acquired for the projects. Proceedings further, the resolution, stated as follows. -

'In order to acquire lands in this way from benefited zone, Government has laid down the sub the slab system, which is as follows;

In Sadashiv's case (Supra) it was held that the purpose of resettlement of project affected persons was a public purpose and acquisition made for such a public purpose was not liable to be challenged. It was also held that the classification on the basis of total land could not be said to be arbitrary. On the other hand, it was held that it had a rational relationship with the object to be achieved, namely to build up pool of land without creating new class of land less people and it was thus reasonable.

5. In the meantime, the question of establishing a permanent machinery and of putting on statutory basis of the policy of the Government of resettling the displaced persons or the project affected persons was under the consideration of the Government. The result was the passing of the Resettlement act, which came into effect on 11th March 1977. In the Statement of Objects and Reasons accompanying the Bill which was introducing in the Legislature Assembly it was mentioned that under the first there it was Five- Year Plans and thereafter, a large number of irrigation projects of public utility have been undertaken by the State Government . It was noticed that during the course of the construction of the projects a large number of persons had to be displaced due to acquisition of their holding for of the displaced persons are required under the Land Acquisition Act on payment of compensation. Noticing further that mere payment of compensation is not adequate for the reason that the lands from which these persons are displaced served them as the only means of live hood it was felt necessary to resettle specified by the State Government for the purpose.

6. The Resettlement Act, as already mentioned above, came into force on 11th March 1977. A brief review of the relevant provisions of the Act becomes necessary in the light the of submission which have been made before us and also in the light of the Division Bench judgement referred to above. The preamble of the Act mentions that it was expedient to provide for the resettlement of certain persons displaced from lands which are acquired for projects of public utility, and for matters connected therewith. In the definition seciton, a 'displaced person' is deemed to mean 'any occupant who , on account of the acquisition of his land in th affected zone for the purposes of a project a has been displaced from such land, or any agricultural labourer'. The definition of 'Project' is important. It is to bw found in cl. (12) of section 2, which is as follows: -

'Project means the construction, extension or improvement of any work for the supply of water for the purpose of irrigation or for the production and supply of electricity of or any work conductive to electrical development and included any other work oft public utility the construction, extension, improvement or development of which results in displacing person from lands which may be used for such work'.

7. Chapter II of the Resettlement ACt deals with the machinery which is to be set up carrying which is to be set up for carrying out the purpose of the said Act. For example, it mentions that the State Government shall establish the Directorate of Resettlement consisting of various officers as stated in Section 4. The function of the Director of resettlement and the duties of the Commissioner are mentioned in Sections 5 and 6 respectively. Provision has been made for the delegation of powers. Section 9 provides for the constitution of Advisory Committees.

8. the provisions of Chapter III are important and must be noticed in some details Section 10, the first section in Chapter III, states as follows:-

'the State Government shall resettle as many displaced persons as possible on land in the benefited zone or in other villages by the State Government by an, order in writing for that purpose) in accordance with the provisions of this Act and the rules made thereunder'. Be so done in accordance with the provisions of the Act and the rules made thereunder. It may also be noted that the section mentions that the State Government shall resettle 'as many displaced persons as possible'. In the other words, there is no obligation on the State Government, under this section at any rate, displaced as a result of any project undertaken by the Government . The resettlement itself, when undertaken , ahs to be done to in accordance with the provisions or the Act. The obligatory nature of the duty cast under Section 10 is relating to the duty which is to be performed in accordance with the provision of this Act and not the duty in relation to the settlement of the persons displaced as a result of any project.

9. What has been mentioned above becomes, clearer if one analyses the provisions of section 11, which is the in following terms:-

'(1) If the State Government of is opinion that it is necessary or expedient in the public interest so to do, for the resettlement of displaced persons, it may by notification in the Official Gazette, declare that the provision of this Act shall apply in realtion to the project specified in the notification, and thereupon ,the provision of this Act shall apply to such project. The notification shall also specify the village or areas which are likely to be in the affected or benefited or zone.'

It is clear from what is mentioned above that before the provision of the Resettlement Act come into operation and before the procedure is to be followed as mentioned is in Section 10 of the ACt, the State Government must declare by notification in the Official Gazette that the provision of the said Act shall apply in the relation to the project specified in the notification. Before such a declaration is made, the State Government must have formed an opinion that it is necessary or expedient in the public interest to make such a declaration. The declaration also has to be made that the provision of the Act shall apply in relation to a project for the resettlement of the displaced persons. An analysis of this provision shows that the declaration of to the made by the State Government upon the formation of an opinion as mentioned in sub-sec (1) of Section 11 is the sine qua non of the coming into operation of all the subsequent provision in the Act. If there is no opinion interest to make a declarations as mentioned in the said provision , the question or applying the to Act to the project and therefore the question of bringing into operation the rest of the provisions of the Act do not arise at all.

10. Section 12 contains a provison which prohibits the trasfer, in the one way or another, the sub-division or partition of any land after the declaration is made under Section 11(1) of the Act. It is at this stage that the officers entrusted the carrying out the purpose of this Act come into the picture. Under Section 13, the Resettlement Officer is entrusted with the duty of assessing the extent of the land fro which provisions are likely to be displaced and the extent of the land which may be available to for grant to the displaced persons. This process is known as the assessment oof the extent of land. The detailed manner in which this assessment is to be carried out has been mapped out in the remaining portion of Section 13. After all the information is collected, the Resettlement Officer is required to send a copy of the assessment of to the State Government , the Commissioner and the Deputy Director.

11. As soon as a copy of the assessment report made under Section 13 is received by the State Government, it will provisionally declare, by notification in the Official Gazette and also in the manner provided in Section 11(2) of the Act, the area which is Section required fro the project and thereby would be adversely affected by the project as mentioned in Cl. (b) of Section 14(1) . Provisional declaration is meant for the purpose of inviting objections to and suggestions for the inclusion of any land in the area referred to in Cls. (a) and (b) of Section 14(1). These objection are to be lodged within a period of not less than thirty days.

12. After the objections and suggestions are received , the State Government has to consider the same after giving a reasonable opportunity to the persons affected by that notification to the heard. It is also free to make such further inquiry as it may think fit. After doing so the State Government finally declares, by notification in the Official Gazette, the extent of the area of affected zone under the project and, if the project is one falling under Cl (b) of s. 14(1) , the extent of the area which shall constitute the area of benefited zone. This final declaration made under S. 15. It is after these stage is set acquiring the land for resettlement of the project displaced person.

13. An examination of the provisions contained in Ss. 11, 13, 14 and 15 shows that the Resettlement Act itself is to be made applicable to a project which is to yet to be executed, because s. 11(1) itself mentions that the provisions of the said ACt shall be applied in relation to a project subject to the formation of the opinion by the State Government . It is only after such a declaration that the provisions of the Act apply to the project. The Resettlement Officer has to make the assessment of the persons likely to be displaced and the extent of the land which may be available for grant to displaced persons. Similarly, the Engineer' have to make assessments of the effects of the execution of the project, both on the persons and on tehland. The project Engineer, for example , has to prepare or case to be prepared an index map of the area which is likely to be submerged. Even the declaration , provisions and final, to be made under Sections 14 and 15 of the Act, talk of area which is required for the project and the area that would be adversely affected by or under the project. All these steps are to be taken, therefore, the project is executed the because is once the project is executed the question of preparing the assessment report does not arise . The assessment report which ss is to be prepared under Sec 13. Of the Act is the nature of a forecast of the basis of the information which the officers discharges the duties under Section 13 of the Act are able to collect.

16

13 to 15

16

16

16

15. In Gulab Shankar, v. Special Land Acquisition Officer, : AIR1982Bom300 , the scheme of the Resettlement Act, particularly with reference to Section 13 to 16 was examined in detail. It has been mentioned in that judgement that which certain persons displaced by any such project should be resettled by resources decision of the Government. Explaining the scheme under Chap. III of the Act, the Division Bench in Gulab Shankar case pointed out that the Government has to notify such project under S. 11(1) of the Act and also expressly apply the provisions of the Act in relation ot the said projects. Further the Government has to specify in the notification the village and areas which are likely to be affected or benefited zones of thh said project. The following sentence to be found in the said judgement is of importance :-

'The Act would obviously have no application to the acquisition of lands for resettlement of the persons displaced by any project not so notified'.

The conclusion embodied in the Above quoted sentence in the judgment in Gulab Shankar's case is also the conclusion which we have arrived at after examining in details the provisions of the Act. We have arrived at after examining in details the provisions of the Resettlement Act before proceeding to consider the Division Bench judgment on which reliance has been placed bu Mr. Gole appearing before us to contend that the acquisition of land in the instant case is illegal and void because us to contend that the acquisition of land in the instant case is illegal and void because the said acquisition is not in consonance with the procedure prescribed by the Resettlement Act.

16. Undoubtedly, the provisions of the settlement Act were examined by the Division Bench in its judgment dated 17th/18th Oct., 19th. The Division Bench has mentioned that what it has to examine in the group of Special Civil Applications before it involved 'considerations and of proper finding about the delicate balance that often a Court of justice is called upon to hold between the individual right to hold property like land and meet aggression upon it and the assertion by the State proposing to acquire the same because of specific social situations by resort to compulsive process of law.' Thereafter the Division Bench examined the provisions of the Resettlement Act and by way of conclusion stated as follows :-

'The necessary consequence of our finding is that after the coming into force of the Displaced Person Act in that judgment . It has also been stated that the Displaced Persons Act came into force on 11th March, 1977 and if the Government were to take up thereafter the scheme for the purpose of the settlement of the project affected persons, then there is no option in the State but to follow the provisions of the said Act by making a suitable declaration under S. 11 and work out the other provisions contained in Ss. 11 and work out the other provisions contained in Ss. 13 to 16 of the Act.

17. We have, with the assistance of Mr. Gole, gone through the judgment of the Division Bench in great details and with all proper care, and after doing so we find ourselves unable to agree with the conclusions recorded by the Division Bench in the said judgment. Since we have already mentioned in some details the provisions contained in the Resettlement Act it is not necessary for us to notice those paragraphs of the judgment of the Division Bench wherein the provisions of the said Act have been examined. But, it is compulsive for is to notice that the division Bench arrived at the conclusion referred to above on certain premises, namely that S. 10 of the Act imposed an obligation upon the Government to resettled persons displace as a result of any project. In discharge of this obligation the State Government is further obliged to take further steps as mentioned in Ss. 11 to 16 of the Act. But the Division Bench did notice at one place in its judgment as follows :-

'In the context of law such a power to make declaration partakes in the nature of statutory initiative advisedly left to the discretion of the executive Government. Wherever there is material before the State Government from which it can be satisfied that a need to make s declaration as by Section 11 has arisen it has to so notify choosing the projects and the villages which are likely to come in the affected or benefited zone of such project and this is all necessary for the purposes or resettlement of displaced perspns.'

18. The Division Bench recognised the fact that 'unless such a declaration is made the project or the area of the villages would not come within the purview of the ACt, nor the consequences indicated bu it would be available'. We find in this the recognition by the Division Bench of the dichotomy of action which is necessarily contemplated by the provisions of S. 11(1). The said section says that the Government has to issue the notification contemplated bu that section after formation of the opinion that it is necessary or expedient in the public interest to make a declaration mentioned therein. This must necessarily mean that a declaration that the provision of the Act shall apply in relation to the project will not be made if the Government does not form the opinion as mentions in S. 11(1). The declaration that the provisions of the ACt shall apply to a particular project is, therefore, the sine qua non of the other provisions of Chapter III coming into force, but the Division Bench then proceeded to mention that from this it does not follw that Section 10 from this it does not follow that Section 10 and its intendment along with other provisions of the Act are all left at the mercy of executive declaration. In fact in another part of its judgment the Division Bench has expressed its view on this in a somewhat stronger language as follows :-

' We don't think that such a detailed, benevolent, just and fair scheme has been enacted by the Legislature to be kept on the statute book only to be avoided by the State by invoking the broad principle of selectivity available in S. 11 of the Act.'

At one place the Division Bench has also mentioned, relying upon a judgment of the Supreme Court in State of Gujarat v. Shantilal, : [1969]3SCR341 , that since the Resettlement Act has provided for a particular procedure to be followed for the resettlement of the project-affected persons, any other procedure provided by another law cannot be followed. What is Stated is that if a power is given to do a certain thing in certain way, that thing must be done in that way or not at all. After reading the judgment of the Division Bench, we find that the following propositions are the foundation of the conclusion which has been arrived at bu the Division Bench. First, it has been Stated that the Resettlement Act is a piece of welfare legislation and full effect must be given to it. Secondly, Sec. 10 of the Act casts an obligation on the State Government to resettle persons who have been displaced as a result of any project. Thirdly, it is in discharge of this obligation that the State Government must take all steps mentioned in Ss. 11 to 16 of the Act. This is so despite the apparently premissive, discretionaru, and enabling language of S. 11(1). The power must be exercised whenever there is a need to resettle persons displaced as a result of any project. The proposition that particular excludes the general has also been relied upon by the Division Bench in order to hold that the Resettlement Act, which is a particular type of public purpose, must prevail over the provisions of the Lane Acquisition Act, which is a general Act. If one of the statutes has prescribed a particular mode of doing a thin, then it prohibits another statute from doing a thing, then it prohibits another statute from doing the same thing in another manner.

19. There cannot be any dispute that the Resettlement Act is a piece of welfare legislation and, undoubtedly, full effect must be given to it, but that is only when the provisions of the Act come into operation. That Section 10 casts an obligation on the State Government to resettle persons displaced as a result of any project is a proposition too widely Stated. In our opinion, what is obligatory upon the State Government under Se. 10 of the Resettlement Act is that it should resettle as may displaced persons as possible in accordance with the provisions of the Act and the rules made thereunder. That is when decision is taken by the Government under S. 11(1) of the act to apply the provisions of the ACt to a particular project, then there is an obligation on the Government to follow the procedure prescribed by the Act and in particular by Chapter III of the Act while resettling 'as many displaced persons as possible'. The word 'shall' contained is S. 10 applied to the duty which is to be discharged in accordance with the provisions of the ACt and not to the duty of resettling the displaced persons. Moreover, this duty arises only from a declaration that is made under S. 11(1) of the Act because S. 10 itself says 'in accordance with the provisions of this ACt and the riled made thereunder'. Undoubtedly, Section 11 itself is a provision of the Resettlement Act.

20. The opinion of the Division Bench that despite the apparently premissive, discretion and enables whenever the question of resettling displaced persons arises is, in our opinion, incorrect. An analysis of the provisions contained in S. 11(1) of the Act shows that there is a discretion given to the Government. Before a declaration is made as mentioned in S. 11(1) of the Act, the State Government has to form an opinion that it is necessary or expedient in the public interest so to do, for the resettlement of displaced persons. The formation of the opinion, as mentioned in S. 11(1) of the Act, must precede the issuance of a declaration which in turn mus precede before what has been called the duty under Sec. 10 of the Act is to be discharged by the State Government. What has been given under S. 11(1) of the Act is a discretion, it does not impose an obligation on the State Government to issued the declaration applying the provisions of the Act in relation to a particular project.

21. If the view of the Division Bench is to prevail that there is an obligation on the State Government to issue a declaration whenever there is a need for resettling persons displaced as a result of any project, then without even the formation of the opinion as mentioned therein the State Government has to issue a declaration. If the declaration that the provisions of the Act shall apply to a particular project is to be made compulsorily, then it is necessary or expedient in the public interest to make the declaration. It is inconceivable that a statute can impose upon a Government or any public authority to form an opinion that it is necessary to do or not to do a particular act. The formation of an opinion is obviously a subjective process though it may be based upon objective facts. In our opinion, therefore, the view of the Division Bench that whenever there is a need to resettle persons affected by any project the declaration that the provisions of the resettlement Act shall apply to that project must follow automatically is wrong because such a declaration itself presupposes the formation of an act to be done in a particular manner it shall not be done in another manner are not relevant for the determination of the action that is to be taken by the Government under Caption as mentioned in S. 11(1) of the Act is made, the question of doing things in the manner prescribed in this Act along and not in any other manner and the question of the particular excluding the general do not arise.

22. There is an additional reason, as pointed out by Mr. Devani appearing for the State, as to why the view of the Division Bench cannot be sustained. It has been pointed out by him that what is contemplated under S. 11(1) of the Resettlement Act is that after the formation of the necessary opinion as mentioned therein the State Government has to declare that 'the provisions of the Act shall apply in relation the project specified in the notification'. In other words, the application of the provisions of the Act is to the project as a result of which persons are displaced and not to the project as a result of which persons are displaced and not to the project of resettling the displace persons which is to be done under the provisions of the said Act. This interpretation of the provision contained in S. 11(1) is, in our opinion, fully consistent with the rest of the provisions contained in the Act and particularly in Chap. III. For example, Sec 13 of the Act imposes a duty upon the Resettlement Officer to assess 'the extent of land from which persons are likely to be displaced and the extent of land which may be available and the extent of land which may be available for grant to displaced persons'. The Resettlement Officer is also required to draw up a list of lands which may be available for resettlement of the displaced persons and in doing so he may indicate the area which may be included in the benefited zone. Similarly the Project Engineer is to prepare an index map of the area that is likely to be submerged.

23. We have already indicated earlier in this judgment the subsequent steps to be taken, namely the issuance of the provisional declaration and the issuance of the final declaration after the objections and suggestions are examined by the State Governmentt. The entire procedure shows that what is to be done under Section 11 is a simultaneous or a contemporaneous decision about the mapping of all the steps that will have to be taken on the basis that the provisions are applied to a project which is going to displace persons-all these are to be estimated or assessed in anticipation that the project is going to be completed and a other hand, is that even if the project completed at some stage in the past and if there are certain persons who have been left unsettled or are still to be settled even then the provisions of this Act must be applied and land cannot be acquired for resettling those persons under the provisions of the Land Acquisition Act. In our view, this is incorrect because contained in the Resettlement Act and in particular the provisions contained in the Resettlement Act and in particular the provisions contained in chapter III of the Act it is clear to us that the provisions of this Act become operative on a declaration which is to be made under S. 11(1) which declaration, as mentioned above, is to be made prior to or contemporaneously with the undertaking of a particular projet. If, for example, a project has already been completed and no assessment of the type envisaged under this Act has been made and if further there are persons who have been displaced, then the provisions of this Act will not come into force. In such a case it would be necessary for the government, if it wants to resettle such displaced persons, to have recourse to the provisions of the Land Acquisition Act.

24. It cannot be said that the provisions of the Resettlement Act prohibits the State Government from having recourse to the provisions of the Land Acquisition Act. The contrary view to be found in the judgment of the Division Bench is, with great respect, inconsistent with the clear language and the scheme contained in Chap. III of the Resettlement Act. It is open to the Government to decide to resettle persons who have been displaced as a result of a project at any time it seems desirable. For example, if a project has been completed, say three or four years ago, and there are persons yet to be resettled, it is always open to the Government to take such action as it deems actions that can be taken is to provide lands to them by acquiring the same under the provisions of the Land Acqusition ACt. It is only when, in anticipation of a project or simultaneously with the starting of a project, the State Government issues a declaration as envisaged in S. 11(1) of the Act that the other provisions of the Act come into play. It is only in such cases that the State government is under an obligation to follow the procedure prescribed under this Act to achieve the Stated object of resettling 'as many displaced persons as possible'.

25. We may now indicate our conclusions in this regard :-

With the provisions of the Maharashtra Resettlement of Project displaced Persons Act, 1976.

The procedure prescribed under the Resettlement Act becomes applicable only when a declaration is made under S. 11(1) of that Act that the provisions of the said Act shall be applicable to a project. Such a declaration will follow only after the formation of the opinion by the State Government that it is necessary or expedient in the public interest to make such a declaration.

When such a notification is not issued or has not been issued, the Government is free to take recourse to the provisions of the Land Acquisition Act, 1894 to resettle the persons who are displaced or will be displaced as a result of any project.

When there is no notification under Section 11(1) of the Resettlement Act, there is naturally no obligation upon the State Government to resettle persons because the provisions of this ACt are not followed and payment of compensation to the affected persons may be enough for the land acquired from then under the provisions of the Land Acquisition Act.

When there is a notification, the obligation is only to follow the procedure for resettling 'as many displaced persons as possible'. The obligation is relating to the procedure to be followed.

26. The petitioners. Case that each of them is holding land separately on his own account and in his own name and, therefore, even under the government Resolution of 31st Oct., 1969 no land is liable to be acquired from their holdings is, in our opinion, not well founded. Annexure 'A' to this petition shows that there is only one single khata (account) of all the petitioners together, though against the name of each petitioner it is mentioned that he is holding one-fourth share in the lands. All the lands together have been mentioned in the same khata. The affidavit filed on behalf of the State shows that the mentioning of the share of each of the petitioners has been made pursuant to an enquiry held into the heirship of the original account holder. The petitioners themselves are not sure as to how they have come to hold one-fourth share in the lands mentioned in the khata at Annexure 'A'. para 3 of the petition, for example, mentions that after the death of the father of the first three petitioners, the father of the fourth petitioner being the eldest son became the manager of the joint family of himself and petitioners 1 to 3. It is mentioned thereafter that there were discharge to 3 and the deceased father of petitioner 4 'which resulted in disruption of their joint Hindu family and partition and separate possession of the joint family properties'. It has not been asserted, for example, that particular lands or particular shares of each lands have been in separate possession of the petitioners. We have not been able to find from the material which has been place before us that each of the petitioners is cultivating his land separately or independently. In view of what is mentioned in Annexure 'A' to this petition, it is impossible to agree with Mr. Gole that there has been a partition or disruption of the joint family and that each of the petitioners should be treated as holding separate share in the property. There is thus not case made out for intereference with the acquisition proceedings on the ground that the Government Resolution dt. 31st Oct. 1969 is not being implemented properly.

27. In the result, this petition must fail. Rule is accordingly discharged with no order as to costs.

At this stage Mr. Gole makes an oral application for a certificate under Art. 133 of the Constitution. The said application is rejected.

28. Petition dismissed.


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