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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

           CIVIL APPEAL NO(s). 6335-6336 OF 2001

MAHAVIR JANGONDA PATIL                      Appellant (s)

                     VERSUS

DIRECTOR OF RESETTLEMENT & ORS.             Respondent(s)

O R D E R

These  appeals  are  directed  against  the  judgment  and  order  dated  

12.4.2001 in Review Application No.71 of 2001 passed by the Bombay High Court  

and the judgment and order dated 22.3.2001 passed by the Bombay High Court in  

Writ Petition No.6063 of 1988 dated 22.3.2001 whereby the Writ Petition filed by  

the present appellant has been dismissed.  

In the writ petition a challenge has been made by the appellant to the  

notification  under  Section  15(1)  dated  29th  May,  1982  of  the  Maharashtra  

Resettlement  of  Project  Displaced  Persons  Act,  1976  (hereinafter  called  the  

"Resettlement Act") and also for quashing the notifications under Sections 4 and 6  

of the Land Acquisition Act, 1894 issued by Respondent No.4.   

Brief facts of the case are as under:-

Respondent No.6, through respondent No.3, issued a notification on 2nd  

November, 1978 under Section 11(1) of the Resettlement Act declaring the villages  

comprised therein to be covered under the benefited  zones of  Warna Project  in  

Kolhapur District from the said date.  The said notification included the appellant's  

village, Shriti. Respondent No.2 thereafter issued notification under Section 14(1) of

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the Resettlement Act on 24th December, 1981 provisionally declaring the area to be  

acquired under Section 16 for the said Warna Project.  The Respondents also issued  

a notification under Section 15 of the Resettlement Act which was published in the  

government gazette on 29th May, 1982 finally declaring the areas covered by the  

benefited  zone.   Respondent  No.4,  on 1st  September,  1983,  issued  a notification  

under Section 4 of the Land Acquisition Act intending to acquire the Petitioner's  

land bearing gat No.677 part, admeasuring 1 hectare 62 ares for the purpose of  

resettlement of  persons affected by the Warna Project.  The appellant lodged his  

objections  to the notices  issued  pursuant  to  the Resettlement Act  and the  Land  

Acquisition  Act  and  pointed  out  inter  alia  that  on  account  of  a  compromise  

recorded in the year 1979, arising out a suit for partition filed in 1967, the land had  

been partitioned amongst various members of the family and that the land holdings  

of the petitioner and his brothers had accordingly been reduced to less than 8 acres  

and  the  petitioner's  land  thus  could  be  acquired  in  view  of  Section  16  of  the  

Resettlement Act read along with the schedule appended thereto.  The High Court  

in the impugned judgment held that as the compromise had been effected in the  

year 1979, i.e., after the date of notification dated 2.11.1978 issued under Section  

11(1) of the Resettlement Act,  the aforesaid compromise could not be taken into  

account as it was void ab initio and, accordingly, dismissed the Writ Petition.  It is  

in this situation, the matter is before us.  

We have heard learned counsel for the parties and have gone through the  

record.

Section 12 of the Resettlement Act, 1976 reads as under:

"12. (1) Notwithstanding  anything  contained  in  any  law

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for the time being in force, no land in the villages of 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 area 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 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 immediately before the grant of  such permission.  

(3) Any  transfer,  sub-division,  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-section (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.".

A perusal of Section 12 reveals that after the land has been notified under  

Section 11, any sub-division of the land by means of partition etc., shall be deemed  

to  be  void.   Admittedly,  the  compromise  in  the  matter  was  after  the  date  of  

notification in the year 1978.  The learned counsel for the appellant has, however,  

forcefully  submitted  that  in  view  of  the  judgment  of  this  Court  in  Addagada

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Raghavamma And Anr. v. Addagada Chenchamma And Anr. [1964] 2 S.C.R. 933,  

once the partition had been effected even if by a compromise, it would relate back to  

the date when the intention to separate had been expressed by the parties and this  

date would be the year 1967, when the suit had been filed.  Undoubtedly, some of  

the observations in the aforesaid judgment do support the arguments raised by the  

learned counsel, but in this very judgment the Supreme Court has observed that the  

principle of retroactivity, unless a legislative intention was clearly to the contrary,  

would save vested rights. It would be clear that this observation by itself makes a  

distinction as to the retroactive nature of the compromise effected i.e. in case where  

the legislative intention is to the contrary.  We find herein a clear legislative intent  

as Section 12 of the Resettlement Act clearly stipulates that any transfer by way of  

sale, partition etc. after the date of notification under Section 11, would be void.   

The learned counsel for the respondent has also taken us to a judgment of  

this Court in the case of State of Punjab v. Amar Singh (1974) 2 SCC 70 which is a  

judgment rendered under Section 10-A of  the Punjab Security of Land Tenures  

Act, 1953.  The principle laid down in the      afore-cited case has been noticed in  

this judgment as well in paragraph No.33 in the following words:

"Another argument was suggested that the order, even though passed  on a compromise was as valid and binding as one passed on contest.  May be, that as a broad proposition one may assent to it.  But where a  compromise goes against a public policy prescription of a stature or a  mandatory  direction  to  the  Court  to  decide  on  its  own  certain  foundational facts, a razi cannot operate to defeat the requirement so  specified or absolve the Court from the duty.  The resultant order will  be  ineffective.   After  all,  by  consent  or  agreement,  parties  cannot  achieve what is contrary to law and a decree merely based on such  agreement  cannot  furnish  a  judicial  amulet  against  statutory  violation.  For, "by private agreement, converted into a decree, parties  cannot empower themselves to do that which they could not have done  by private agreement alone". (See Mulla:  Civil Procedure Code, Vol.  II, P. 1300).  The true rule is that "the contract of the parties is not the

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less  a  contract,  and subject  to  the  incidents  of  a  contract,  because  there is superadded the command of the Judge".  

It is, therefore, obvious that where the statute itself is against a transfer, it is the  

statute which will pre-dominate vis-a-vis any other consideration.

We, thus,  find no merit in these appeals.   Dismissed, however with no  

order as to costs.

.....................J. (Harjit Singh Bedi)

.....................J. (J.M. Panchal)

New Delhi; April 22, 2009.