REPORTABLE

lIN 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   

            JUDGMENT

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.