Bombay High Court
Khanderao Jalbaji Sakhre vs Competent Authroity / Sub ... on 31 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3379 OF 2020
KHANDERAO JALBAJI SAKHRE
VERSUS
COMPETENT AUTHORITY / SUB DIVISIONAL OFFICER
NANDED AND ANOTHER
...
Advocate for the Petitioner : Shri Bora Satyajit S.
Advocate for Respondent 1 : Shri A.N. Patale
Advocate for Respondent 2 : Shri S.V.Kurundkar
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 31st August, 2021
Per Court :-
1. This matter was heard briefly. With the assistance of
the learned advocates for the respective sides, we have gone
through the petition paper book and the scope of Section 3H(4)
of the National Highways Act, 1956. The affidavit in reply filed
by respondent No.1 (Vikas Rajaram Mane), is taken on record.
2. There is no dispute that the petitioner has filed
Special Civil Suit No.77/2008 before the learned Civil Court
with reference to 38 R land, which he claims to be in his
possession and out of which, 1637 square meters has been
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acquired for a public project under the National Highways Act.
The said suit has been dismissed with costs by judgment dated
13.11.2019. Regular Civil Appeal No.158/2019 is pending before
the learned District Court at Nanded.
3. Shri Kurundkar, the learned advocate representing
respondent No.2/ Shivaji Ramji Kokate, submits that once the
civil suit has been dismissed with costs and the claims of the
petitioner have been turned down by the learned Civil Court, it
is a clear indication that none of his rights are involved to the
extent of the land that has been acquired for a public project. In
this backdrop, there would be no purpose in referring the dispute
as regards the apportionment of compensation amount to the
Principal Civil Court of original jurisdiction within the limits of
whose jurisdiction the land is situated, under Section 3H(4).
4. Shri Kurundkar further submits that even if the said
dispute is referred to the said Court, it would amount to a second
adjudication on the claims of the petitioner since he holds a claim
on the misconceived belief that he has a right to 38 R land out of
which some portion has been acquired. It, therefore, turns upon
the issue as to whether, the petitioner has any right, which can be
asserted to the extent of his right, title and interest with reference
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to the said land. This aspect was squarely before the learned Civil
Court in Special Civil Suit No.77/2008.
5. In view of the above and since the regular civil
appeal is pending before the learned Appellate Court, we
suggested to the learned advocate for the petitioner as to whether,
the petitioner would cooperate in the appeal proceedings for an
expeditious disposal of the appeal and the interim protection
granted by this Court on 27.02.2020 could be continued only
upto such decision.
6. Shri Bora, learned advocate for the petitioner,
sought a pass-over and submitted, after lunch in the second
session, that the petitioner is agreeable.
7. Shri Kurundkar submits that the wife of respondent
No.2/ Shivaji is presently suffering from severe ailment and
medical treatment is extremely costly. She desperately needs the
said compensation amount for medical treatment. To reassure the
petitioner, he would preserve the land at least to the extent of 38
R in the same area which belongs to him, until the appeal is
decided. On this condition, he prays for leave to withdraw the
said amount.
8. Considering the submissions as recorded above, we
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deem it appropriate to grant a time-frame to the learned
Appellate Court to decide the pending appeal in order to avoid
further complications or any dispute as to whether, the land has
been preserved by respondent No.2/ Shivaji or whether, the
amount withdrawn cannot be re-deposited in the event the
petitioner succeeds, etc..
9. In view of the above, this Writ Petition is disposed
off. We request the learned District Court at Nanded to decide
Regular Civil Appeal No.158/2019 as expeditiously as possible
and preferably on or before 30.10.2021. The litigating parties
have agreed to dispense with the appeal paper book, if not
already tendered. They would rely upon the record and
proceedings. Both the plaintiffs and the defendants would
advance their oral submissions on or before 30.09.2021. The
written notes of submissions are permitted. The learned
Appellate Court would close the matter for judgment and deliver
it's judgment on or before 30.10.2021.
10. Needless to state, ad-interim protection granted to
the petitioner (Khanderao Sakhre) on 27.02.2020, would
continue to protect him only till 30.10.2021 or till the decision in
the appeal, whichever is earlier. Thereafter, the Appellate Court
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shall keep in mind that the interim protection granted by this
Court would not be a ground for the Appellate Court to continue
the same relief, save and except on merits of the matter.
11. Considering the grounds of necessity to withdraw
the amount having been expressed by respondent No.2/Shivaji,
we leave it to the said defendant to make an application before
the Appellate Court for withdrawal of the amount on such
conditions as the Appellate Court may deem appropriate to
impose.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
