[BOMBAY HIGH COURT]

(1) Jaywantrao Balawantrao Patil; (2) Jayachandra Jaywant Patil
v
(1) Sandeep Ramchandra Sapakal; (2) Shivaji Narayan Sapakal; (3) Kamal Ramchandra Sapakal

BENCH
S. S. SHINDE

CASES REFERRED TO
Devram Govind Gadge and anr. v/s. State of Maharashtra [2006 (1) MhLJ 589]

ACTS REFERRED
Maharashtra Project Affected Persons Rehabilitation Act, 1986[s. 12(1)(d), s. 12(3)]
Maharashtra Resettlement of Project Displaced Persons Act, 1976[s. 11, s. 12]
CASE NO
Second Appeal No.478 of 1999

The Order of the Court was as follows :

1. The present second appeal arises out of a suit filed before the Court of Civil Judge, Junior Division, Islampur for permanent injunction against the respondents/originl defendants in respect of ancestral property as described in Para 1 of the plaint.

2. While admitting the appeal on 9th March 2000 this Court recorded the following substantial question of law which arises in this Second Appeal :-

"Whether the sale deed dated 11.8.78 is legal and valid in view of the provisions of Section 12(1)(d) and 12(3) of the Maharashtra Project Affected Persons Rehabilitation Act, 1986?" *

FACTUAL MATRIX :-

3. The present appellants/original plaintiffs instituted a suit for perpetual injunction against the respondents/original defendants in respect of one piece of agricultural land from village Aitwade-Khurd, Tal. Walwa, Dist.Sangli bearing Regular Civil Suit No.33/1994 in the Court of Civil Judge (Jr.Division), Islampur, District Sangli.

4. It was the case of the appellants/plaintiffs that the agricultural land bearing Gat No.195/1, admeasuring 3-H-17R situated at village Aitwade-Khurd, Tal.Walwa, District Sanagli is their ancestral property. Plaintiff No.1 is the father of Plaintiff No.2. On 31st August 1978, the father of plaintiff No.2 executed a sale deed in favour of the respondents/original defendants. According to the plaintiffs, the said sale deed was a hallow document and it was brought in existence as a security for the loan obtained from the father of defendant Nos.1 and 2. It was the contention of the plaintiffs that the said document was not acted upon by the parties and the possession of the suit property was never delivered to the defendants. It was the averment of the plaintiff that the sale deed dated 31.8.1978 was/is an unlawful document as the suit land was then mortgaged with the land development bank and the co-operative society, Aitwade-Khurd. Therefore, according to the appellants/original plaintiffs, the respondents/original defendants do not get any right or title under such sale deed. It is averred by the plaintiffs in the plaint that the defendants had agreed for not claiming any right under the said sale deed and, the plaintiffs had, therefore, continued to remain in possession of the suit land.

5. It was the case of the plaintiffs that in the year 1984 some portion of the suit land from western side was acquired by the Rehabilitation Officer. It is further averred by them that as village Aitwade-Khurd falls under the affected area, the transfers of the lands could not be effected without the permission of the concerned authorities and, neither the plaintiffs nor the defendants had obtained any such permission and, therefore, the alleged transaction of sale and purchase is badly affected.

6. It was also contended by the plaintiffs that the defendants, with some malafide intention, were trying to mutate their names in the revenue records in respect of the suit land and trying to create some false documents though the plaintiffs have repaid the loan amount. As the defendants are trying to obstruct the possession of the plaintiffs in respect of the suit land, the plaintiffs have filed the aforesaid civil suit for perpetual injunction against the defendants.

7. The defendant Nos.1 and 2 have filed their written statement and denied the case of the plaintiffs in toto. According to them, the plaintiffs were in a need of money and had requested their uncle Narayan Ganpati Sapkal to purchase two acres i.e. 81 R of agricultural land from Gat No.195 of village Aitwade-Khurd, Tal.Walwa. Finally, the Defendant Nos.1 and 2, after clearing the encumbrances over the land and removing other legal impediments, had purchased 81 R land out of Gat No.195 for a consideration of Rs.10, 000/-. According to them, a sale deed to that effect was got executed and registered on 31st August 1978. Portion of 4 7 R of the said land from Western side was kept reserved for acquisition by the Government under the Rehabilitation Act and that was communicated to the Settlement Officer. The defendants have stated in their written statement that an application was also moved for grant of requisite permission. The sale of suit land was an absolute sale and, since the date of sale, the defendants are in possession of the suit land and, since then they are cultivating it as its owner. They have denied the case of the plaintiffs that the document was a hallow document and it was brought in existence as a security for any loan.

8. It was contended by the defendants that out of the aforesaid two acres of land, defendant No.2 had sold one acre of land in favour of defendant No.3, who is the mother of defendant No.1, by a registered sale deed dated 23rd June 1992. It was the contention of the defendant Nos.1 and 2 that the Settlement Officer had acquired 47 R of land from the west side of the suit land and had accorded requisite permission and, the names of defendants were then mutated against the suit land. Lastly they have contended that the suit filed by the plaintiffs is false one and it be dismissed with costs.

9. A separate written statement was filed by defendant No.3 in reply to the amended plaint. She had denied the contents of the plaint. She has stated that the sale deed dated 31.8.1978 is an absolute one and she had purchased 40 R of land on 23.6.1992 from defendant No.2. She also contended that the suit of the plaintiffs is false and it be dismissed.

10. On the basis of averments and contentions made by the parties, the trial court decreed the suit of the plaintiffs with costs and restrained the defendants from obstructing and interfering the possession of the plaintiffs over the suit property.

11. Against the judgment and order dated 30.9.1997, passed by the Civil Judge, Junior Division, Islampur, the respondents/defendants filed two separate appeals bearing Regular Civil Appeal No.462 of 1997 and Regular Civil Appeal No.511 of 1997. Both the appeals were allowed by the Addl.District Judge and the judgment and order dated 30.9.1997, passed by the Civil Judge, Junior Division, Islampur in Regular Civil Suit No.33 of 1994 was set aside and ultimately the suit of the plaintiffs for perpetual injunction against the defendants was dismissed. Hence this second appeal filed by the appellants/original plaintiffs.

12. Two important points were raised in the suit i.e. firstly the sale deed dated 31.8.1978 is illegal and void because it is contrary to the provisions of Sections 11 and 12 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 and secondly, since the Government of Maharashtra issued a Notification dated 13.5.1977 under Section 11 of Maharashtra Resettlement of Project Displaced Persons Act, 1976 (hereinafter referred to as "the said Act") and included the said village Aitwade-Khurd in the said Notification, any sale or transfer without prior permission of the competent authority was invalid or illegal.

SUBMISSIONS :-

13. The learned advocate appearing for the appellants/plaintiffs submitted that the sale deed dated 31.08.1978 was illegal and void abinitio since the suit property was mortgaged to the land development bank and co-operative society. It is further submitted by the learned advocate appearing for the appellants that as per Section 11 of the said Act, the State of Maharashtra has issued Notification in the official gazette and declared that the provisions of the said Act are applicable to village Aitwade as it falls under the affected and benefited zones. He, therefore, submitted that once the notification is issued under Section 11 of the said Act and village Aitwade is included in the said notification as per Section 12 of the said Act, no land in the village Aitwade or the area 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 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. It was further argued by the learned advocate appearing for the appellants that any sale or transfer etc. under Section 12 is possible only by obtaining permission from the competent authority of the Government of Maharashtra. It was also argued by the learned advocate for the appellants that since the land and/or area in village Aitwade falls under the affected and benefited zone as per the notification issued by the State of Maharashtra under Section 11 of the said Act on 13.5.1977, the land under sale deed can not be transferred, sub-divided or partitioned unless there is a permission from the competent authority of the State of Maharashtra. Therefore, once the State of Maharashtra issued the notification under Section 11 of the said Act on 13.5.1977 and village Aitwade is included in affected and benefited zone, after the date of notification, any transfer or sale of land by way of sale-deed, gift deed, exchange, lease or otherwise is expressly prohibited unless specifically permitted by the competent authority by the State of Maharashtra, and therefore, the sale deed executed in favour of the respondents/defendants on 30.8.1978 was illegal and void abinitio.

14. The learned advocate appearing for the respondents contended that since the permission of the authority was obtained subsequent in the year 1993, the sale deed, which was executed in 1978, was legal and valid. He, further submitted that the lower appellate court has rightly allowed the appeals of the respondents and no interference is called for by this court in the judgement and order passed by the lower appellate court. He, therefore, prays for dismissal of this second appeal.

CONCLUSIONS AND FINDINGS :-

15. I have given my anxious consideration to the submissions made by the learned advocates appearing for the appellants as well as the respondents and I have no hesitation to hold that the sale deed, which was executed by the father of the plaintiff, in favour of the defendant Nos. 1 and 2 in the year 1978 is illegal and void abinitio because the notification under Section 11 of the said Act was issued by the State Government in the official gazette in the year 1977. It would be relevant, at this stage, to mention the provisions of Section 11 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. Section 11 of the said Act reads thus :-

(1) If the State Government is of 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 provisions of this Act shall apply in relation to the Project specified in the notification, and thereupon, the provisions of this Act shall apply to such Project. The notification shall also specify the villages or areas which are likely to be in the affected or benefited zone.

(2) The declaration shall also be published in the villages or area which are likely to be the affected and benefited zones by beat of drum or otherwise, and by affixing a copy of the notification in some prominent place or places in the zones, and in the village chawdi, and in the office of the panchayat, if any, and also in the office of the Resettlement Officer. *

Mere perusal of the Section 11 of the said Act shows that if the State Government is of the 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 provisions of this Act shall apply in relation to the project specified in the notification and thereupon. The notification shall also specify the villages or areas which are likely to be in the affected or benefited zone.

16. It is an admitted position that the lands and the areas of village Aitwade was included in the notification under Section 11 of the said Act, which was issued in the official gazette by the State Government on 13.5.1977. Since the said village Aitwade was included in the affected or benefited zone, any sale or transfer or mortgage of any property falling under the affected or benefited zone could be effected with prior permission of the competent authority of the State Government. It would be relevant to mention the provisions of Section 12 of the said Act. Section 12 of the said Act reads thus:-

"(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 give such general or special permission, subject to such conditions, if any as it may deem fit to impose to carry out the object of this Act, including a condition that the grant of such permission shall be without prejudice to the area of land liable to be compulsorily acquired under section 16, on the basis of any holding as it existed immediate before the grant of such permission].

(3) Any transfer, sub-division or partition of land made in contravention of sub-section (1) [or of any condition imposed under sub-section (2)] shall be void and inoperative.

[(4) The State Government may, by general or special order, delegate its powers under sub-sections (1) and (2) to all or any of the Collectors of Districts who are ex-officio Deputy Directors (Land), subject to such conditions and limitations, if any, as may be specified in the order.]. *

17. After perusal of provisions of Sections 11 and 12 of the said Act, it is abundantly clear that the sale deed, which was executed on 31.8.1978 was subsequent to the issuance of notification dated 13.5.1977 by the State Government in the Official Gazette including the said village Aitwade in the affected and benefited zone and, therefore, the sale deed executed in 1978, without prior permission from the competent authority of the State Government, as required under the provisions of Section 12 of the said Act, is illegal and void abinitio # .

18. This court had occasioned to consider the provisions of Sections 11 and 12 of the said Act in the case of Devram Govind Gadge and anr. v/s. State of Maharashtra, reported in 2006 (1) MhLJ 589. The facts of that case are that the land of the petitioner was acquired in the year 1982 and at the relevant time the said land stood in the name of joint family. There was a partition between the petitioner on 16.8.1986 and pursuant to the said partition, an application was made by the petitioners to revenue authority for giving permission for partition of the said land. The Revenue Authority i.e. the Tahsildar, Junnar passed an order dated 6.8.1986 and divided the land amongst the petitioner by metes and bounds and permission under Section 85 of the Maharashtra Land Revenue Code was granted. Thereafter notice under Section 4(1) of the Land Acquisition Act was issued for acquiring the petitioner's land. The petitioners filed their objection and pointed out that the land of the petitioners after partition was not liable to be acquired for the second time. The notification under section 11 of the Maharashtra Resettlement of Project Affected Person Act was issued by the Government in the year 1979. On the basis of above facts and circumstances of that case and after considering the provisions of Sections 11 and 12 of the said Act, this Court held that in view of legal bar on the partition of lands of the petitioner after issuance of notification under Section 11, any transfer or partition which is effected would clearly be illegal and contrary to provisions under Section 12 of the said Act.

19. So far as the case in hand is concerned, sale deed was executed by the father of the appellants/plaintiffs on 31.8.1978 in favour of the respondents/defendants. The notification under Section 11 was issued by the State Government in the official gazette on 13.5.1977. By the said notification the Government included the village Aitwade and the lands or areas falling in village Aitwade as affected and benefited zones. As per the case of the respondents/defendants, necessary permission from the competent authority was obtained by them subsequently in the year 1993. Therefore it is crystal clear that in the year 1977 itself the Government, by issuing notification dated 13.5.77 under the provisions of Section 11, put restrictions on transfer by way of gift, exchange, lease or others, sub-division, or partition of lands of village Aitwade as the lands and/or areas of village Aitwade were falling in the affected and benefited zone.

20. It is strenuously urged before me that the respondents/defendants have obtained permission from the competent authority in the year 1993. But as per provisions of Sections 11 and 12 of the said Act prior permission is necessary. In the instant case, the notification was issued on 13.5.1977 and the respondents/defendants obtained permission in 1993. So it is clear that at the time of execution of sale deed dated 31.8.1978, the defendants did not have any such permission from the competent authority of the State Government which is necessary under the said Act. The observations made by this Court in the case of Devram Govind Gadge v/s. State of Maharashtra are applicable to the present case.

21. For the reasons stated above, in my view, the lower appellate Court erred in allowing the appeals filed by the respondents/defendants. The lower appellate Court without properly appreciating the provisions of Sections 11 and 12 of the said Act and only relying upon the subsequent permission granted on 8th April 1993 by the competent authority, Sangali permitting to effect the mutuation entry in respect of the sale and purchase of 80 R of land from Gat No.195 of village Aitwade i.e. the suit land, came to the wrong conclusion that the said sale deed is valid and legal. The lower Court i.e. the Civil Judge, Junior Division, Sangli is perfectly justified in decreeing the suit of the plaintiffs. Therefore, the judgment and order dated 9.9.1999 passed by the Addl.District Judge, Sangli in Regular Civil Appeal No.462 of 1997 and Regular Civil Appeal No.511 of 1997 is quashed and set aside. The judgment and order passed by the Civil Judge, Junior Division, Islampur on 30.9.1997 is upheld and confirmed.

22. In view of the aforesaid discussion, this second appeal stands allowed and the substantial question of law is answered accordingly. Certified copy expedited.