Sudam Shankar
Kshirsagar & ANR. Vs. State of Maharashtra & Ors. [2010] INSC 688 (30
August 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 546 OF 2004 Sudam
Shankar Kshirsagar & Anr. ....... Appellants Versus State of Maharashtra
& Ors. ......Respondents
Dr. Mukundakam
Sharma, J.
1.
The
present petition is directed against the judgment and order dated 24.01.2002
passed by the Division Bench of the Bombay High Court dismissing the Writ
Petition, filed by the appellants herein, registered as Writ Petition No. 5720
of 2001.
2.
In
the Writ Petition filed by the appellants before the Bombay High Court, they
challenged the legality of the notification issued by the respondent-State
herein under Section 4(1) of the Land Acquisition Act.
3.
The
appellants in the said Writ Petition prayed for quashing and setting aside the
commencement of the Land Acquisition proceedings qua the appellants.
Appellant No. 1
sought the said relief on the ground that a total holding of the appellant
family being land covering 12.6 hectares, and each of the co-sharer of the
family being entitled to hold land measuring about 2.53 hectares of land, no
land could be acquired under the Maharashtra Project Affected Persons
Rehabilitation Act, 1986 [for short "Act of 1986"]. Consequently, it
was argued that the entire exercise of proceeding under the Land Acquisition
Act against the appellant is illegal and without jurisdiction.
4.
According
to the appellants, each member of the family who has attained the age of
majority is entitled to hold independent land. Therefore, it is their
submission that, akin to the provisions of the Maharashtra Agricultural Lands
[Ceiling on Holdings] Act, 1961 [for short "Act of 1961], each one of them
would be entitled to retain his share in the joint family property which would
be calculated as one unit each and if after such calculation, there is any
excess land, such land could only be acquired in terms of the provisions of the
Maharashtra Project Affected Persons Rehabilitation Act, 1986 read with the
provisions of Land Acquisition Act.
5.
The
aforesaid contention of the appellants were refuted by the respondent-State
contending inter alia that the expression "holding" is defined under
Section 2(8) of the Maharashtra Project Affected Persons Rehabilitation Act,
1986, which indicates the total land held by a person as an occupant or tenant
or as both.
Since the expression
"person" appearing in the said definition is not defined under the
Act of 1986, therefore, according to the State, resort should be had to the
definition of the expression of "persons" under Section 3(35) of the
Bombay General Clauses Act, 1904. According to the said legislation, the
expression "persons" could include any company or association or body
of individuals, whether incorporated or not, and relying on this definition,
the stand of the State is that the expression joint Hindu family would also be
included within the expression "person" and, therefore, the holding
of the entire joint Hindu family itself would be calculated as one unit.
6.
The
Bombay High Court, where the Writ Petition was filed, accepted the contention
of the State Government and held that the expression "person" occurring
in the definition of "holding" under Section 2(8) of the Act of 1986
cannot be restricted solely to natural persons or juristic persons and that the
expression "person" would include any company or association or body
of individuals. In the opinion of the High Court, a Hindu Joint Family without
doubt would be a body of individuals and would be covered under the expression
"person" occurring in the definition of "holding" under
Section 2(8) of the Act of 1986.
7.
Having
concluded so, the Bombay High Court also held that once Hindu Joint Family is
held to be a person, the limit prescribed in Schedule-II has to be seen in the
light of the holding of the person, i.e., holding of the Hindu Joint Family and
not as holding of individual coparceners who constitute a Hindu Joint Family.
The aforesaid findings recorded by the High Court are challenged in this
appeal, wherein we have heard the learned counsel appearing for the parties.
8.
The
counsel for the appellants in support of his submission drew our attention to
the definition clauses of the Act of 1986, with a particular reference to sub-
Section 2 of Section 2 of the same, wherein the expression "affected
person" is defined also to mean an occupant whose land in the affected
zone is acquired under Section 14 for the purposes of a project and to the definition
of expression "holding" under Section 2(8) of the Act of 1986.
9.
Sub-Section
2 of Section 14 of the Act of 1986 authorises the State Government to also
compulsorily acquire land for carrying out the purposes of the said Act under
the Land Acquisition Act, 1894; and the acquisition of any land for any of the
said purposes shall be deemed to be a public purpose within the meaning of the
Land Acquisition Act. It is also provided under sub-Section 3 of Section 14
that the State Government may also acquire lands in a gaothan in the affected
zone as far as practicable according to the provisions of Part I of the
Schedule.
10.
The
relevant provisions mentioned above may be reproduced here for ready reference:
- The Maharashtra Project Affected Persons Rehabilitation Act, 1986: -
"Section 2 (2) "affected person" means - (a) an occupant whose
land in the affected zone (including land in the gaothan) is acquired under
section 14 for the purposes of a project; .......................................................
Section 2 (8)
"holding" means the total land held by a person as an occupant or
tenant, or as both;
........................"
"Section 14 (2)
Subject to the provisions of this section, the State Government may for
carrying out the purposes of this Act, also compulsorily acquire land under the
Land Acquisition Act, 1894; and the acquisition of any land for any of the said
purposes shall be deemed to be a public purpose within the meaning of that Act.
Section 14(3) The
State Government may also acquire lands included in a gaothan in the affected
zone as far as practicable according to the provisions of Part I of the
Schedule."
1.
The
Act of 1986 was enacted to consolidate and amend the law relating to the
rehabilitation of persons affected by certain projects in the State of
Maharashtra and also for matters connected therewith or incidental thereto. In
order to achieve the aforesaid purpose and objective, land belonging to a
person could be acquired by issuing a notification under the provisions of the
Land Acquisition Act. In the present case, the acquisition proceeding was
initiated by State Government against the appellants who allege to be a Hindu
Joint Family.
2.
Counsel
appearing for the appellant in support of his submission that the expression
"person" would include individual coparceners constituting the Hindu
Joint Family, relied upon the Maharashtra Agricultural Land [Ceiling on
Holdings] Act, 1961. Counsel appearing for the appellant referred to
sub-Section 22 of Section 2 of the Act of 1961 to state that "person"
includes a family and that expression "family" is defined under
Section 2 (11) of the Act of 1961 as a Hindu Undivided Family, and in the case
of other persons, a group or unit the members of which by custom or usage, are
joint in estate or possession or residence.
3.
In
support of the said contention, he relied upon the decision of this Court in
the case of Gaya Din (Dead) through Lrs. & Others v. Hanuman Prasad (Dead)
through Lrs. & Others reported at (2001) 1 SCC 501 to contend that under
the tenancy and land laws joint and undivided family is recognized as a person
and, therefore, each major member of the family would be considered to hold one
unit in the joint Hindu family property.
4.
We
have considered the aforesaid submissions in the light of the records. On
appreciation of the records and the aforesaid provisions of law, we are of the
considered opinion that the expressions "person" and
"family" as contained in the Maharashtra Agricultural Land [Ceiling
on Holdings] Act, 1961 have no application at all to the facts and
circumstances of the present case. The object and purpose of enacting of the
Act of 1961 is completely different from that of the Maharashtra Project
Affected Persons Rehabilitation Act, 1986.
5.
In
the present case, the Maharashtra Agricultural Land [Ceiling on Holdings] Act,
1961 is not applicable and what is applicable is the Maharashtra Project
Affected Persons Rehabilitation Act, 1986. The expression "person" is
defined in the Act of 1961 and expression "holding" is defined in the
Act of 1986. The Legislature while enacting the Act of 1986 incorporated the
definition of expression "holding"
under Section 2(8)
and was fully conscious of the fact that there is a definition of expression
"person" in the Act of 1961, but despite the said fact, it did not
incorporate the said definition of expression "person" given in the
Act of 1961.
Since the expression
"person" is not defined in the Act of 1986, in order to ascertain the
definition of the same, we necessarily have to refer to the provisions of the
Bombay General Clauses Act, 1904.
6.
Section
3(35) of the Bombay General Clauses Act, 1904 defines persons to "include
any company or association or body of individuals, whether incorporated or not.
In that event, if we adopt the position and standard as enunciated in the
aforementioned legislation, it has to be held that the expression
"person" would include the body of individuals, meaning thereby, that
the Hindu Joint Family is a body of individuals and is covered under the
expression "person" mentioned in Section 2(8) of the Act of 1986.
7.
Once
the Hindu Joint Family is held to be a person, the limit prescribed in
Schedule-II has to be considered in the light of the holding of Hindu Joint
Family and not holding of individual coparceners constituting a Hindu Joint
Family. That being the position, we uphold the findings and the conclusions
arrived at by the Bombay High Court.
8.
Consequently,
we find no merit in this appeal, which is dismissed. There will be no order as
to costs.
......................................J.
[Dr. Mukundakam Sharma]
......................................J.
[ Anil R. Dave ]
New
Delhi,
August
30, 2010.
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