Gurunath Kashinath Dukale And Ors vs Nilim Rajendra Thakkar (Dhak) And ...
2021 Latest Caselaw 3882 Bom

                                                                          (24) wpst-98457-2020.doc

BDP-SPS


  Bharat
  D.
  Pandit
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
  by Bharat D.
  Pandit
  Date:
                                         CIVIL APPELLATE JURISDICTION
                                     WRIT PETITION (ST) NO.98457 OF 2020
  2021.03.04
  11:54:42
  +0530




                     Gurunath Kashinath Dukale & Ors.                  ....Petitioners.
                                V/s
                     Nilima Rajendra Thakkar (Dhak) & Anr.             ..... Respondents

                     Mr. Shailesh S. Redekar a/w Mr. Ganesh Rawoo for the Petitioners.
                     Mr. Satyakumar M. Shettigar for Respondent No.1
                     Mr. P.P. Pujari, AGP for Respondent No.2.

                                          CORAM: NITIN W. SAMBRE, J.

                                          DATE:      MARCH 2, 2021

                     P.C.:-

                     1]       In a suit for specific performance being Special Civil Suit No.11

of 2020, application-Exhibit-5 for grant of temporary injunction came

to be rejected on 5/12/2020 which order was upset at the behest of

the Respondents/Plaintiffs by the learned District Judge-3, Vasai vide

order impugned passed on 11/12/2020. As such, this Petition.

2] Submissions are, suit for specific performance in regard to tribal

land is not maintainable, particularly in the backdrop of provisions of

Section 36-A of the Maharashtra Land Revenue Code. Relying on the

judgment of this Court in the matter of Tulsiram Adku Marape and

(24) wpst-98457-2020.doc

another Vs State of Maharashtra and others reported in 2011 (1)

Mh.L.J. 182 submissions are, very spirit of insertion of Section 36-A by

way of amendment in the statue book is required to be appreciated.

According to learned Counsel, said judgment in categorical terms

provides for non-transferability of tribal land even to tribal by tribal

without permission under Section 36-A as contemplated. Further

submissions are, vide order impugned disbursement of the

compensation amount is not permitted, thereby creating embargo on

the right of the Petitioners as the suit for specific performance is

pending. By inviting my attention to the prayer clause in the plaint,

submissions are, once the land which is the subject matter of the suit is

acquired by Respondent No.2, the cause no more survives and that

being so injunction ought not to have been granted.

3] The learned Counsel for Respondent No.1 would support the

order impugned and would claim that suit for specific performance is

based on agreement of sale dated 25/5/2012. According to him, even

if the land is acquired by the railway authorities,

Respondents/Plaintiffs have every right to claim refund of the amount

along with compensation / damages. He would as such pray for

(24) wpst-98457-2020.doc

dismissal of the Petition.

4] Vide order impugned, the learned District Judge directed railway

authorities to deposit entire amount of compensation in the pending

suit which is directed to be invested in Fixed Deposit. Contention of

the Petitioners that Respondents/Plaintiffs are not entitled for part of

the damages including refund of the consideration as there is absence

of permission under Section 36-A of the Maharashtra Land Revenue

Code is liable to be rejected at this stage of the proceedings as the

issue, whether Respondents/Plaintiffs are entitled for relief claimed in

the plaint will be looked into at the appropriate stage of the

proceedings. This Court cannot be oblivious to the fact that the

Petitioners under the agreement have already accepted total amount

of consideration. Whether Respondents/Plaintiffs are entitled for

damages, refund of consideration amount is an issue which could be

dwelled upon by the court below after appreciating the oral evidence

of respective parties. Even if Respondents/Plaintiffs have not claimed

refund of amount of consideration and damages, the said relief which

is lesser in magnitude than that of the one claimed in the plaint can

always be granted.

(24) wpst-98457-2020.doc

5] In the aforesaid backdrop, order of the learned District Judge,

thereby injuncting the Petitioners from withdrawing the amount of

compensation, in my opinion, does not call for any interference.

6] As far as reliance placed by the Petitioners on the judgment in

the matter of Tulsiram cited supra and other judgments is concerned,

the same are not required to be looked into at this stage of the

proceedings, particularly when even if it is held that under section

36-A land ought not to have been transferred in favour of the

Petitioners, still claim of the Plaintiffs for refund of the amount of

consideration with damages is very much maintainable.

7] In that view of the matter, no case for interference in

extraordinary jurisdiction is made out. Petition as such fails and same

stands dismissed.

8] While parting, it will be appropriate to observe that Petitioners

will be at liberty to move the Trial Court seeking withdrawal of part of

the amount of compensation, particularly in the light of submission

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that part of the amount of compensation can be detained so as to cater

the interest of the Plaintiffs in case if the suit is decreed to the extent

of refund of consideration and award of compensation.

( NITIN W. SAMBRE, J. )