Bombay High Court
Jayant Vasant Deshpande vs The State Of Maharashtra on 27 July, 2021
Bench: K.K. Tated, P. K. Chavan
20-WP-3376-2021.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3376 OF 2021
Jayant Vasant Deshpande ] Petitioner
Vs.
The State of Maharashtra ]
and others. ] Respondents
.....
Mr. K. P. Shah, for Petitioner.
Mr. Drupad Patil, for Respondent No.4.
Mr. V.S. Gokhale, 'B' Panel Advocate for Respondent- State.
Mr. Vaibhav Ugale, for Respondent No.5.
.....
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 27 th JULY, 2021.
[Through Video Conferencing]
P.C.
1. Heard learned Counsel for the parties.
2. By this petition under Article 226 of the Constitution of
India, the petitioner is seeking to set aside the order dated 20 th
March, 2020 passed by Respondent No.3- Sub Divisional Officer/
Land Acquisition Officer, Malshiras Division, Akluj by which he
permitted respondent No.4 to withdraw a sum of Rs.1,03,04,179/-
Digitally signed by
SHAILAJA SHAILAJA SHRIKANT
SHRIKANT HALKUDE
Date: 2021.07.29
HALKUDE 11:36:59 +0530
1 of 12
20-WP-3376-2021.doc
(Rs. One Crore, three lakhs, four thousand and one Hundred
Seventy Nine only) in respect of acquired land admeasuring 2654
square meter from Gat No.788 situate at Mandave, Taluka,
Malshiras, District Solapur.
3. Mr. Shah, learned Counsel appearing on behalf of the
petitioner submits that as soon as the petitioner learnt that land
acquisition officer is going to permit respondent No.4 to withdraw
the entire amount in respect of acquired land, he immediately filed
objection as per section 3H (3) of the National Highways Act, 1956
on 3rd October, 2019 (Exhibit G page 178). He submits that not
only that the petitioner also filed Regular Civil Suit No.1348 of
2019 before Civil Judge Junior Division, Malshiras for partition
and other reliefs. He submits that all these facts were recorded by
the S.D.O, Malshiras in Roznama of L.A.R No.87 of 2019 on 10 th
January, 2020. He submits that as per section 3H (4) of the
National Highways Act, 1956, a duty is cast upon the concerned
officer to refer the matter to the Civil Court for deciding the said
dispute.
4. Section-3H (3) and (4) read thus;
"3H. Deposit and payment of amount._
(1)....
(2)....
(3)Where several persons claim to be interested in
the amount deposited under sub-section (1), the
2 of 12
20-WP-3376-2021.doc
competent authority shall determine the persons
who in its opinion are entitled to receive the
amount payable to each of them.
(4)If any dispute arises as to the apportionment of
the amount or any part thereof or to any person to
whom the same or any part thereof is payable, the
competent authority shall refer the dispute to the
decision of the principal civil court of original
jurisdiction within the limits of whose jurisdiction
the land is situated.
5. Mr. Shah submits that instead of referring the matter to the
Civil Court, Land Acquisition Officer permitted respondent No.4 to
withdraw the entire amount on 20th March, 2020 (Exhibit N, Page
237). Hence, the petitioner has filed the present Petition.
6. On the other hand, Mr. Patil, learned Counsel appearing on
behalf of respondent No.4 vehemently opposed the present writ
petition. He submits that they have already withdrawn the entire
amount on 20th March, 2020. Hence, there is no question of
granting any ad-interim or interim relief as claimed by the
petitioner in the present petition.
7. Mr. Patil, learned Counsel appearing for respondent No.4
submits that the petitioner preferred application below Exhibit 5 in
Regular Civil Suit No.1348 of 2019 for various reliefs He submits
that the Civil Judge, Junior Division, Malshiras after hearing both
3 of 12
20-WP-3376-2021.doc
the sides passed a detailed order on 7th March, 2020 and rejected
the petitioner's application below Exhibit 5. Mr. Patil, relies on the
observations made by the learned Civil Judge while deciding
points No.2 and 3 which read thus;
Sr. POINTS FINDINGS
No.
2. Whether the balance of convenience lies No
in favour of the plaintiff?
3. Whether irreparable loss will cause to No
plaintiff if the injunction application is
rejected?
"AS TO POINT NOS.2 AND 3:
41. Both these points are interlinked with
each other. Hence, in order to avoid repetition, I
am deciding these points commonly.
42. The plaintiff has proved that, he has
prima facie case. Now, the plaintiff has to prove
that, balance of convenience lies in his favour
and irreparable loss will cause to him in
injunction is refused.
43. Learned counsel for the plaintiff
submits that, defendant nos. 1 and 2 are trying
to create third party interest over the land Gat
No.788. He also submits that, paper publication
was published by defendant nos. 20 and 21
stating that, they are purchasing the land in Gat
No.788. The plaintiff is having right in his said
4 of 12
20-WP-3376-2021.doc
land and if third party interest is created, then
the plaintiff will suffer irreparable loss.
44. Per contra, learned counsel for
defendant No.2 submits that, defendant no.2 is
old age lady. She is 78% handicapped. She is in
need of money for her treatment and livelihood.
Therefore, balance of convenience lies in favour
of defendant no.2 and if injunction is granted
against her, then she will suffer irreparable loss.
45. Record shows that, the plaintiff is
claiming partition and separate possession. As
per pleading of the plaintiff, he is claiming ¼ th
share in the suit property from serial nos. 1 to
11 and 13 and he is claiming ½ share in
properties from serial nos. 12 to 19.
46. It is pleading of the plaintiff that, the
suit property is ancestral property of the family.
It is prima face proved that, partition was not
effected by decree of Court or by registered
instrument. As per amendment of 2005 in
Hindu Succession Act, daughters become co-
parceners and therefore, the plaintiff and
defendant nos. 1 to 3 are having equal share in
the entire property of the joint family.
5 of 12
20-WP-3376-2021.doc
47. Record shows that, the suit property
from serial nos. 1 to 19 is near about 40 H i.e
100 acres. As per pleadings of the plaintiff, said
properties at Sr. Nos. 12 to 19 are also joint
family properties. Total area of said properties is
near about 72 acre. Plaintiff and defendant no.1
to 3 are having equal right in said properties,
which shows that, each co-parceners is having
near about 18 acre share in said properties.
48. Record shows that, the defendant no.2
has relinquished her share and in said
properties in favour of plaintiff and defendant
no.1, which shows that, the defendant no.2 has
already relinquished her share of near about 18
acre i.e 9 acre each in favour of the plaintiff and
defendant no.1 by registered document.
49. Learned Counsel for the plaintiff
submits that, there are various litigations in
respect of land from serial nos. 13 to 19 out of
the suit property. However, prima facie there is
nothing on record to show that, litigations in
respect of said land is pending. Hence,
submission of learned counsel for the plaintiff is
not considered.
6 of 12
20-WP-3376-2021.doc
50. Record further shows that, name of the
plaintiff in suit properties from Sr. Nos. 1 to 11
is recorded as owner to following lands.
Village Gat Area
No.
Natepute 187 0 H 2.5 R
Natepute 188 O H 03 R
Natepute 189 1 H 41 R
Natepute 574/1 Jointly 0 H 60
R
Natepute 574/2 0 H 67 R
Mandave 790 0 H 81 R
Total 3 H 54 R i.e 8
acres 34 R
51. Record also shows that, name of
defendant no.1 in suit properties from Sr. Nos. 1
to 11 is recorded as owner to following lands.
Village Gat No. Area
Natepute 574/1 Jointly O H 60 R
Natepute 574/3 O H 66 R
Natepute 581/1 1 H 88 R
Natepute 582/2 1 H 86 R
Mandave 792 1 H 20 R
Total 6 H 20 R i.e 15 acre
20 R
52. Hence, record prima facie shows that
name of the plaintiff and defendant no.1 is
recorded as owner in respect of suit properties
except land in Gat No.788. Record shows that,
in entire suit property only land in Gat No.788
7 of 12
20-WP-3376-2021.doc
to the extent of 88 R is mutated in favour of
defendant no.2 and she has relinquished her
right in respect of suit properties from Sr. Nos.
12 to 19 and the suit house in favour of the
plaintiff and defendant No.1.
53. Therefore, if case of plaintiff is admitted
as it is, then also in the entire suit property,
defendant no.2 will have ¼th share, which is
near about 25 acres. Out of said share, she has
relinquished her share in favour of the plaintiff
and defendant No.1 by registered relinquish-
deed without consideration, in respect of
property from serial nos. 13 to 19 which is up to
18 acres and still she is having share about 7
acres.
54. Out of other properties name of the
plaintiff is recorded as owner for near about 8
acres and name of defendant no.1 is recorded as
owner for near about 15 acres and only land in
Gat No.788 is mutated in favour of the
defendant no.2. Record also shows that, will-
deed is executed by defendant no.2 and after
her death, rights in respect of her share in the
suit property was given to the plaintiff and
defendant no.1.
8 of 12
20-WP-3376-2021.doc
55. It is the submission of learned counsel
for the defendant no.2 that the defendant no.2
is old age handicap lady and she required to
sale land in Gat No.788 for her regular
treatment. Per contra, learned counsel for the
plaintiff submitted that the land in Gat No.788
is acquired by the Government. Huge
compensation amount is sanctioned by the
Government. The defendant no.2 can take her
treatment from said amount.
56. It is admitted fact that, defendant no.2
is old age lady. In title clause of the plaint, her
age is recorded as 79 years. The defendant no.2
has brought on record copy of disability
certificate, which shows that, she is 78%
disable. Hence, record shows that she required
treatment.
57. It is the submission of learned counsel
for the plaintiff that land in Gat No.788 is
acquired by the Government. Huge
compensation amount is sanctioned by the
Government. The defendant no.2 can take her
treatment from said amount. However, pleading
of the plaintiff shows that he has raised
objection before the Competent Authority/SDO
about said amount. Hence, in my considered
9 of 12
20-WP-3376-2021.doc
opinion, unless said objections are decided the
defendant no.2 could not get the amount of
compensation.
58. Learned counsel for the plaintiff
submits that, land in Gat No.788 to be acquired
for widening of road and therefore, defendant
no.2 will receive huge amount of compensation.
Hence, she will not have any legal necessity to
create third party interest over remaining land
of Gat No.788. However, record shows that,
land in Gat No.790 is also acquired for
widening of road. Said land is recorded in
favour of the plaintiff. Land in Gut No.792 is
also acquired for widening of the road. Said
land is recorded in favour of the defendant
No.1. The plaintiff has not pleaded about
acquisition of said lands by the government.
Therefore, submission advanced by the learned
counsel for the plaintiff is not considered.
59. Learned counsel for the plaintiff
submits that, the suit property is joint family
property and each co-parcener is having share
in respect of each and every property. Therefore,
if the defendant no.2 create third party interest
over the land Gat No.788, then he will suffer
irreparable loss.
10 of 12
20-WP-3376-2021.doc
60. However, as discussed above, out of
entire near about 100 acres of suit property,
name of defendant no.2 is recorded only to 88 R
land. Area of the suit property from Sr. Nos. 1 to
11 comes near about 10 H 04 R which is near
about 25 acres. Considering the prayer of the
plaintiff, share of defendant no.2 in lands from
comes near about 2 H 50 R which is near about
7 acre. Her name is recorded for 0 H 88 only.
Record also shows that, defendant no.2 is old
age lady and 78% disable. In such
circumstances, balance of convenience lies in
favour of defendant no.2. Therefore, if
injunction is granted against her, then she will
suffer irreparable loss as compared to the
plaintiff. Therefore, I record my negative finding
to point nos. 2 and 3.
8. Mr. Patil, learned Counsel appearing for respondent No.4
submits that it is crystal clear from the observations made by the
trial Court that the petitioner has no right, title and interest in
respect of the land which is acquired by respondent No.3 i.e land
admeasuring 2654 square meter from Gat No.788. He further
submits that even it is not mandatory as per section 3H (3) and (4)
of the National Highways Act to make a reference to the Civil
Court. He submits that discretion is given to the concerned officer
to make a reference if he comes to the conclusion that there is a
dispute between the parties. He submits that as per his knowledge
11 of 12
20-WP-3376-2021.doc
to that effect, the concerned officer passed the detailed order.
9. Mr. Patil, learned Counsel appearing for respondent No.4
submits that he wants to rely on two judgments of this Court
wherein especially held that it is not mandatory on the part of the
concerned officer to make a reference under section 3H (3) (4) of
the National Highways Act, 1956 if application is filed. For that
purpose, he requires some time.
10. In view of this fact, following order is passed;
:O R D E R :
(a) Liberty is granted to respondent No.4 to file
additional affidavit in reply along with documents
with copy to the other side on or before 30 th July,
2021;
(b) Rejoinder, if any, to be filed on or before 3rd
August, 2021 with copy to the other side;
11. Matter to appear on board on 7th August, 2021.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.]
12 of 12
