Bombay High Court
Abbas Abdul Mhaiter And Another vs The Dir., Resettlement, And Others on 21 January, 1997
Equivalent citations: AIR1997BOM237, 1997(3)BOMCR563, 1997(1)MHLJ719, AIR 1997 BOMBAY 237, (1997) 1 ALLMR 707 (BOM), (1997) 1 LACC 405, (1997) 1 MAH LJ 719, (1997) 3 BOM CR 563, 1997 (99) BOM LR 625, 1997 BOM LR 99 625
ORDER Dr. Mrs. UPASANI, J.
1. By this petition, the petitioners are challenging acquisition proceedings of their land bearing Survey No. 120(2)(p), admeasuring 75 areas in Village Astha, District Sangli.
2. It is submitted by the petitioners that the father, one Abdul Mhaiter, who was the owner of the above referred land, died on 9th Oct. 1970, leaving behind him three sons as his heirs, and that, thereafter the entire land was dived into three shares. It is contended that each co-owner is cultivating his land which came to his share, and that, the total holding of the petitioners is below the ceiling of 8 acres.
3. It is also the grievence of the petitioners that though their father had already expired, the petitioners who were the sons to the said deceased Abdul Mhaiter, were never served with any notice and therefore, they could not file any objections under Section 5A to any of the Notification issued by the respondents under Section 4 and under Section 6 of the Land Acquisition Act 1894. It is submitted by them that they learnt about the acquisition proceedings, only when notice dated 13th June, 1989 issued by respondent No. 4 (Special Land Acquisition Officer (9), Sangli) calling upon the petitioners to attend his office to collect the amount of compensation, and also when they were served upon with the notice dated 23-6-1989 calling upon them to be present at the site, as on the said land under acquisition was to take place. It is therefore prayed that the Notification issued by the respondents under section 4 and 6 of the Land Acquisition Act, 1894, so also, the Notification issued under Section 11(1) and Section 14(1) and section 15(1) of the Maharashtra Re-settlement of Project displaced Persons Act, 1976 be quashed.
4. We have heard Mr. Vase, appearing for the petitioners, so also, Mr. Gokhale, Additional Government Pleader, appearing for respondents. We have also perused the proceedings.
5. In the affidavit field by the respondents, there is no denial by the respondents that the petitioners were not served with any of the notice, required to be served upon them under the provisions of the Land Acquisition Act. It is therefore evident that the petitioners were deprived of filing objections as per the provisions of section 5A of the Land Acquisition Act, 1894. Since there is no compliance by respondents of this mandatory provision, the grievance made by the petitioners about non-serving of any notice upon them after the death of their father, appears to be well-founded. The proceeding also nowhere reveal that the petitioners have at any point of time, participated in the proceedings. Therefore, on this count, the acquisition has to be held as bad-in-law.
6. As far as the second point canvassed by advocate for the petitioners that the total holdings of the petitioners were not above the prescribed ceiling of 8 acres, it must be stated that the petitioners admittedly are Muslims, and admittedly, there is no system of joint family amongst Muslim Community. The position is now well settled. The law is very clear on this point that as per the provisions of Mohammadan Law, the heirs of the deceased Mohammedan hold the property as tenants-in-common, each having specified share therein. There is a judgment of the Division Bench of on this very point, which has clarified this legal position (Writ Petition Number 1510|86), decided on 31st August, 1993, Coram Dr. B.P. Saraf and Mr. S. M. Jhunjhunuwala, JJ).
7. In view the this legal position, we hold that the holding of each petitioner was below the ceiling of 8 acres. The petition thus succeeds and rule is made absolute in terms of prayers (a) and (e). No costs.
Certified Copy expedited.
Petition allowed.