Mrs. Sujata Manohar, J.:— This writ petition and a number of other petitions, which are before us, are from persons in the benefitted zone of the Warana Irrigation Project whose lands are sought to be acquired for the rehabilitation of persons displaced by the project. In all these writ petitions, the vires of the Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation) Act, 1985 is challenged. A number of writ petitions which challenged the vires of the said Amendment and Validation Act, 1985 on the same grounds as are urged in these petitions were considered by a Division Bench of this Court in the case of Dhulgonda Dada Patil v. Special Land Acquisition Officer No. 15 reported in AIR 1989 Bom 286. The Division Bench has upheld the validity of the said Amendment and Validation Act of 1985. The Division Bench has observed in its judgment in para 10 that under sub-sec. (1) of Section 4 of the Amendment and Validation Act, the final declarations made under sec. 15(3) of the principal act before the commencement of the said Amendment and Validation Act, are validated and cured. The said validation covers cases where declarations under Sec. 15 have been made but they are not in accordance with the requirements of the unamended Sections 14 and 15 of the said Act. The Division Bench has emphasised the language of the latter part of Section 4(1) of the Amendment Act, “no such declaration shall be called in question in any Court of law merely on the ground that the provisions of sections 13 and 14 of the principal act have not been complied with, in part or in whole, or that an opportunity of being heard was not given to the persons affected by such declaration or that no further enquiry was made by the State Government, before making such declaration”, in support of its conclusion.

3. In the present case, the first contention raised by the petitioners relates to the declaration made under Sec. 15 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 which was made on 29th May 1982 i.e before the Amendment and Validation Act. According to the petitioners, the declaration under Sec. 15 is not in accordance with law because in the declaration, the area of land under the benefitted zone of the Project is not set out. This submission is factually incorrect because the declaration does set out in extenso the names of 104 villages which are to constitute the benefitted zone of the Project although the actual area occupied by these villages is not stated. The petitioners have further submitted that the declaration under Sec. 15 in question unnecessarily mentions the area which is to be acquired against each of these villages when the section does not require this area to be mentioned. It is difficult to understand how mentioning of any additional information in the declaration makes the declaration bad in law. Anyway in view of the judgment of the Division Bench in the case of Dhulgonda Dada Patil (AIR 1989 Bom 286) (supra) and the reasons set out therein it is not open to the petitioners to challenge the said notification after the enacting of the Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation) Act, 1985.

3. The next submission made by the petitioners is to the effect that if one looks at the said notification under Sec. 15 of the Act, the area which is to be acquired from the benefitted zone is 3114 Hectares and 39 ares. As against this, the area of the affected zone is only 1581 Hectares and 1 are. The petitioners, therefore, contend that the land which is sought to be acquired is far in excess of the requirements and on that ground also the petitioners are entitled to relief. In Writ Petition No. 1247 of 1985 i.e in Dhulgonda D. Patil's case (AIR 1989 Bom 286) (supra) the respondents had filed an affidavit in which the respondents have set out their practical experience relating to such acquisitions. Because of the slab system, which is prescribed under the said Act for acquisition of lands from the benefitted zone, it has been found that out of the lands which are so notified for acquisition, after an enquiry under Sec. 5-A of the Land Acquisition Act, only about 25 per cent of such land is in fact available for acquisition. Seventyfive per cent of the originally notified land is required to be left out of consideration. This discrepancy arises on account of the fact that the land revenue records were not up-to-date in 1978, which is the date when the notification under Sec. 11 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 was first issued in respect of this project. (This notification is dated 2-11-1978). The revenue record as of 1978 reflects the position of holdings as of 1975-1976. The intervening transactions of partition, sale, gift etc. were not reflected in the record because it takes about 3 to 4 years for communication of this information from the Sub-Registrar's Office to the Talathi who makes changes in the revenue record. Therefore, during this intervening period of 3 years, if any partitions or transfers have taken place and the holdings of persons in the benefitted zone have changed, these have to be taken into consideration for the purpose of acquiring land from these persons in the benefitted zone. If the holding is reduced below the minimum prescribed under Schedule A of the Act, it has to be released. In these circumstances, notifying 3114 H. of land from the benefitted zone for acquisition as against the requirements of 1581 H. of the effected zone, does not appear to be excessive. In addition, in Writ Petition No. 2967/89, which is also before us along with this writ petition, a common affidavit has been filed by the respondents in which the respondents have given further facts relating to the acquisition of lands from the benefitted zone of the Warana Irrigation Project. The affidavit sets out that it was contemplated that if the entire 3114 H. of land can be acquired, then, out of this land, 1680 Hs. from 34 villages was to be utilised for the resettlement of Dudhaganga Project affected persons while about 1700 Hs was to be utilised for the Warana Project affected persons. Out of these 1700 Hs. of land initially ear-marked for the Warana Project affected persons, the Government has so far acquired 727 Hs. from the benefitted zone of the Warana Project in Kolhapur District. Only 355 Hs. of land is so far distributed to the project affected persons 196 Hs. could not be distributed because this land was of inferior quality and was rejected as unsuitable. In addition 176 Hs. of land though acquired could not be distributed because of stay orders obtained from the High Court in various cases. Of the remaining land yet to be acquired, in all 881 Hs. of land in 655 writ petitions is not available for distribution for project affected persons from the Warana Project. In addition 256 Hs. of land is yet to be acquired from the benefitted zone of Warana Project and even if this land is acquired, it will not be sufficient for completing resettlement of affected persons. This is because under Government Resolution dated 20-4-1987 it has been specified that agricultural land which is to be given to project affected persons should be within a radius of 8 kms. from the new Gaothan as far as possible. Looking to this State of acquisition proceedings in respect of lands to be acquired from the benefitted zone of the Warana Project and looking to the fact that 75 per cent of land which is sought to be acquired is ultimately deleted by the Commissioner on account of valid representations made by the concerned holders, it does not seem that the notified land will prove to be in excess of the actual requirements after all the claims are investigated. At least the material before us is inadequate for so concluding.

4. In the affidavit the respondents have further stated that any excess land so acquired will be used for resettlement of persons affected by the Dudhaganga Project. In this connection the petitioners have contended that looking to the provisions of Sections 13 and 16 of the said Act, it is not permissible for lands from the benefited zone of one project to be used for resettlement of persons displaced by another project. In this connection it is necessary to look at the scheme of the Maharashtra Resettlement of Project Displaced Persons Act, 1976.

5. Section 10 of the said Act provides for resettlement of displaced persons. It says, “The State Government shall resettle as many displaced persons as possible on land in the benefitted zone or in other villages or areas (being villages and areas specified by the State Government by an order in writing for that purpose) in accordance with the provisions of this Act and the rules made thereunder.” Therefore, a displaced person can be resettled, not merely on land in the benefitted zone, but on any other land also as may be specified by the State Government. Under Sec. 13, the Resettlement Officer is required to assess the extent of land from which persons are likely to be displaced and the extent of land which may be available for grant to displaced persons. In this connection under Sec. 13, sub-sec. (3) the Resettlement Officer is required to draw up a list of lands which may be available for resettlement of the displaced persons. The Section provides:

“Such lands shall consist of—

(a) Government waste lands;

(b) Government forest lands which are available or which may be available, for cultivation after deforestation;

(c) lands which may be included in the benefited zone, or in any village or area to be specified under Section 10 and which may be acquired under the Land Acquisition Act, 1894, in accordance with the provisions of Section 16;

(d) lands acquired under Section 16;

(e) any other land vesting in the State Government and available for the resettlement of displaced persons.”

Thus, the list of lands available for resettlement of displaced persons is very wide. It is not confined only to the land acquired from the benefitted zone of the Project concerned. Clearly, even land outside the benefitted zone can also be used for this purpose. In fact, under Section 10 an obligation is cast on the State Government to resettle as many displaced persons as possible on lands in the benefitted zone or in other villages or areas which may be specified by the State Government by an order in writing. There is nothing in these provisions to indicate that the lands in the benefitted zone which are referred to, are confined only to the benefitted zone of the concerned project. In fact that definition of “displaced person” also makes it clear that it covers all persons who have been displaced from land on account of acquisition of their land in the effected zone. Sec. 2(7) defines “displaced person” to mean “any occupant who on account of the acquisition of his land in the affected zone…….. for the purposes of a project has been displaced from such land………….”. This definition also does not in any way suggest that a displaced person's right of resettlement is confined to the lands benefitted by any particular project.

6. The question is whether lands from the benefitted zone of one project can be acquired for the resettlement of displaced persons from another project. When Section 13(3) permits even lands from other unbenefitted areas to be acquired for such resettlement, we do not see any reasons to hold that lands of the benefitted zone of another project cannot be so acquired. In fact, it was pointed out to us that in a given case the benefitted zone of one project may have a large number of small holdings. Looking to the slab system provided under the said Act for acquisition of land, adequate land may not be available for resettlement of persons displaced by that project in the benefitted zone of that project. Some of these displaced persons may have to be accommodated elsewhere. From a practical point of view, a mathematical equation is not always possible between the land acquired from the benefitted zone of a project and the land of the affected zone of that project.

7. The petitioners rely upon the definitions of “affected zone” and “benefitted zone” in Sec. 2 in support of their contention that the land from the benefitted zone of a project can be acquired for the resettlement of only displaced persons of that project. Under Sec. 2, sub-sec. (1) of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 “affected zone” in relation to a project is defined to mean the lands declared under Section 15 to constitute the area of the affected zone under that project. Under sub-section (3) “benefitted zone” in relation to a project is defined to mean the lands declared under Sec. 15 to constitute the area of the benefitted zone under that project. It is difficult to see how these definitions lead to the conclusion that land from the benefitted zone of one project cannot be used for the resettlement of displaced persons from another project.

8. In any case, looking to the actual availability of lands from the benefitted zone of Warana Project for the resettlement of displaced persons from Warana Project, the possibility of surplus lands at this stage appears some what hypothetical. The notifications which have been issued under Sections 4 and 6 of the Land Acquisition Act in fact State that these lands are required for the purpose of resettling persons affected by Warana Project. Looking to the scheme of the said Act, therefore, there is no substance in this contention of the petitioners.

9. It is next submitted by the petitioners that when notification under Sec. 6 of the Land Acquisition Act states that the lands are being acquired for the public purpose of resettling displaced persons of Warana Project, the lands cannot be allotted to displaced persons from the Dudhaganga Project. Assuming for the sake of argument that these lands are to be allotted to the displaced persons of Dudhaganga Project, in our view, the acquisition does not become bad in law. As set out by the Supreme Court in the case of State of Maharashtra v. Mahadeo Duoman Rai, reported in (1990) 3 SCC 579, due to changed circumstances, public purpose for which lands were sought to be acquired may change or it may become necessary to modify or change the scheme for which originally the lands were acquired. The fact that the property has been acquired for a given public purpose does not make it immune for being utilised for any other public purpose for ever, (vide also Gulam Mustafa v. The State of Maharashtra, reported in (1976) 1 SCC 800 : (AIR 1977 SC 448)).

10. The petitioners placed reliance on the case of The Industrial Development and Investment Co. Pvt. Ltd. v. State of Maharashtra, reported in 1988 Mah LJ 1027 : (AIR 1989 Bom 156). In that case, in the final development Plan, the plot in question was reserved for extension of Dharavi Sewerage Purification Works. On account of a change in the scheme of the purification plant, this plot was no longer so required. It was held that the act of making an award and taking possession of the land subsequent to the disappearance of the purpose specified in the declaration under Sec. 6 was ultra vires. The Court said that the purpose for which the land was sought to be acquired under Sec. 6 should continue to exist till the date of the award. This case does not apply to the facts of the present case. The purpose, namely, resettlement of displaced persons from Warana Project continues to exist. An Award has already been made in the present case as far back as on 30-3-1988 and it is nobody's case that these lands are not required for resettlement of persons affected by Warana Project. All that the affidavit of the respondents states is that in case there are any excess lands remaining after resettling all affected persons from Warana Project, these lands will be made available for resettlement of affected persons from Budhaganga Project.

11. It was next contended by the petitioners that in determining the holding of each holder for the purposes of S. 16 read with Schedule A of the said Act, land which is not used for agricultural purposes should be excluded. Now, S. 2(10) defines a ‘holding’ to mean “the total land held by a person as an occupant or tenant or as both”. This definition does not restrict a holding only to agricultural land. It refers to total land. Similarly, Schedule A, Part II, which prescribes the size of the holding of a land holder also does not refer only to agricultural land. The first column is titled “Size of the holding” i.e size of the total land. Sec. 16 sub-sec. (1) enables the State Government to enter into an agreement with any person for the purchase or exchange of any land required for carrying out the purposes of the Act. Under sub-sec. (2) the State Government can compulsorily acquire any land under the Land Acquisition Act — not only agricultural land. In fact under sub-sec. (3) it is provided that the State Government may also acquire lands included in a gaothan in the affected zone. Under sub-sec. (4), for the purpose of resettling displaced persons on land the State Government may acquire land from holdings in the benefitted zone. There is nothing in these provisions which restricts a holding of a person only to agricultural land.

12. These are the general submissions made by the petitioners before us. As set out above, they do not have any merit. We are informed that these submissions are common to a number of writ petitions which are also before us today. In fact, we are informed that these submissions were also made before the Division Bench in Dhulgonda Dada Patil's case (AIR 1989 Bombay 286). Since these are not expressly referred to in that judgment we have dealt with them here.

13. Coming to the facts of the present case, what is sought to be acquired is an area of 1 H. 21 ares from village Rui from Gat No. 1249 which stands in the name of the petitioners in the revenue records. In respect of this land S. 11 notification was issued on 2-11-1978; notification under Sec. 15 was issued on 29-5-1982. In these notifications the land of the petitioners described above is included. Thereafter a notification u/S. 4 of the Land Acquisition Act was published on 1-9-1983. Notification u/S. 6 of the Land Acquisition Act was issued on 20-8-1986. It was published according to the petitioners, on 11-9-1986. Thereafter an award in respect of this land of the petitioners has been made on 30-3-1988. As per the documents produced by the respondents in their affidavit, possession of this land was taken under a Panchanama from the petitioners on 15-4-1988. Pursuant to this a mutation entry was made in the Record of Rights on 5-5-1990 setting out that this land now vests in the Government by virtue of the said award and possession having been taken on 15-4-1988. It seems that the petitioners obtained a certified copy of the mutation entry on 9-7-1990. Thereafter they have filed the present petition on 10-8-1990. They obtained an order of this Hon'ble Court for preservation of status quo on 16-8-1990.

14. The first contention of the petitioners is to the effect that the notification u/S. 6 of the Land Acquisition Act has been published more than 3 years after the notification u/S. 4 and hence this notification is bad in law and his land cannot be acquired. Under S. 4 of the Land Acquisition Act the manner of publication of a notification u/S. 4 is prescribed. It is not in dispute that in the present case notification u/S. 4 was published on 1-9-1983.

15. Under S. 6(1) when appropriate Government or the Commissioner is satisfied after considering the report, if any, made u/S. 5A, sub-sec. (2), that any particular land is needed for a public purpose, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. This declaration u/S. 6 which is made under the signature of Secretary or an officer duly authorised as per S. 6(1) was in the present case made on 20-9-1986, that is to say, within 3 years of publication of the notification u/S. 4 of the Land Acquisition Act. The proviso to S. 6 on which the petitioners rely states,

“Provided that no declaration in respect of any particular land covered by a notification u/S. 4, sub-sec. (1),—

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification;”.

Clearly, therefore, no declaration u/S. 6 can be made after the expiry of 3 years from the date of publication of notification u/S. 4. The petitioners, however, contend that what is required to be considered in this case is not the date on which the declaration was made u/S. 6 but the date on which the declaration u/S. 6 was published. This submission is contrary to the language of the proviso which clearly provides only about the declaration being made after the expiry of 3 years. In fact, S. 6 sub-sec. (1) does not deal with publication of the notification u/S. 6 at all. The provisions for publication are in S. 6 sub-sec. (2). This submission, therefore, of the petitioners must be rejected.

16. It is also contended by the petitioners that the notice of the award u/S. 12(2) has not been served on him. The award, however, has been made as far back as on 30-3-1988. The panchanama relating to possession which is dated 15-4-1988 also sets out this fact. The mutation entry of 5-5-1990 also refers to the award of 30-3-1988. The respondents have pointed out that the panchanama of 15-4-1988 refers to the notice u/S. 12(2) having been served on the petitioners. In any case, we fail to see the relevance of notice u/S. 12(2) of the Land Acquisition Act for the purpose of the present case.

17. It is next submitted by the petitioners that on the death of Balgonda Patil in 1958 there was a partition of lands in question between the 1st petitioner and his other brothers. Hence the holding of the petitioners has not been correctly measured. In this connection the petitioners have relied upon a mutation entry made on 7-7-1978, which is annexed as Exhibit ‘C’ to the petition. This mutation entry states that on the application of the heirs of the account-holder (‘Khatedar’) Shri Belgonda Patil who died 20 years ago, it is recorded that these are the heirs of the deceased. The names of the 3 sons of the deceased including the 1st petitioner and the father of respondents Nos. 2 to 4 are then mentioned. The names of 3 daughters of the deceased are also thereafter set out. The entry further sets out the shares in which various lands are being cultivated by the sons only. We fail to see how this mutation entry can be said to record any partition effected between the sons of the deceased Balgonda Patil. At the highest the entry in the Khata records a family arrangement under which the persons mentioned therein were having different shares in the land under cultivation as set out in the khata.

18. In the case of Ganpat Balwant Pawar v. Special Land Acquisition Officer No. 7 reported in 1984 Mah LJ 752 : (AIR 1984 Bombay 382) (FB), in almost identical circumstances the Full Bench of this High Court negatived the contention of the petitioners therein that there was any partition between the members of the joint family concerned or that each person must be considered as having a separate holding for the purpose of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. In the case before the Full Bench also it was urged on behalf of the petitioners that although the total holding of the joint family was large, subsequently each of the petitioners was allotted only a portion of the land and as a result, each person must be held to cultivate his land separately and independently; and this should be considered as his holding. The Full Bench pointed out that there was only a single khata (account) of all the petitioners together though against the name of each petitioner, it was mentioned that he was holding a 1/4th share in the lands in the same khata. The situation is identical in the present case. We have no evidence of any partition before us. This contention was not raised by the petitioners even at the stage of enquiry u/S. 5A of the Land Acquisition Act. There is no material before us to show that such of the petitioners is having any independent holding which can be taken into account for the purpose of the said Act.

19. It is further submitted by the petitioners that in view of the provisions of the Hindu Succession Act, 1956 there was an automatic partition amongst the heirs of Balgonda Patil on his death. Hence each of the petitioners must he considered as having a separate holding. Balgonda Patil was the father of the 1st petitioner and grand-father of petitioners Nos. 2, 3 and 4 who are the sons of Ramgonda Patil. Ramgonda Patil was the brother of Shivgonda Patil, the 1st petitioner and the son of Balgonda Patil. Ramgonda Patil has died and hence the names of petitioners Nos. 2, 3 and 4 are entered in the khata after the death of Ramgonda Patil. It is well settled that on the death of a male Hindu who is a co-parcener in a joint family there is no automatic partition of his share in the joint family properties amongst his male heirs. But if the deceased has left him surviving a female heir as specified in S. 6, a notional partition is deemed to have taken place in the joint family property at the time of the death of the deceased for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. In the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh reported in AIR 1985 SC 716, the Supreme Court considered this question in the context of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It held that in the case of a joint family consisting of karta, son, wife and mother, on the death of the karta the surviving members continued to remain joint. Hence all members together are entitled to one ceiling unit. The Supreme Court negatived the contention that by reason of the death of the Karta there was an automatic partition amongst the members of the joint family. The Supreme Court has held that only the share of the female members in the family properties becomes fixed on the date of death in such circumstances. But there is no partition of the joint family. The contention of the petitioners, therefore, that there was an automatic partition amongst the heirs of Balgonda Patil on his death must be negatived.

20. It was also urged on behalf of the respondents that there has been gross delay on the part of the petitioners in coming to this court. There is some substance in this contention also because in the present case a notification u/S. 15 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 was issued as far back as 29-5-1982. A notification u/S. 4 of the Land Acquisition Act which covered the land of the petitioners was published as far back as on 1-9-1983 and the S. 6 notification was issued on 20-8-1986. The award is of 30-3-1988. Possession of the land was taken by the respondents on 15-4-1988. Even the mutation entry was effected on 5-5-1990. The petitioners took no steps during this entire period either to challenge the notification u/S. 15 or to challenge acquisition proceedings in respect of their lands under the Land Acquisition Act. It is only after a change was effected in the khata of the petitioners by a mutation entry showing that the Government has become the owner of the land that the present writ petition has been filed. In any event, even on merit the petitioners are not entitled to succeed.

21. Hence the petition is dismissed.

22. No order as to costs in the circumstances of the case.

23. Status quo to be maintained for a period of three weeks from today.

Status quo to be maintained up to March 91.

Petition dismissed.