Nagnath Malkarjun Hundekar vs Mandabai Malkarjun Hundekar And ...
2021 Latest Caselaw 14753 Bom

                                                                          935.WP.13594.19.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.13594 OF 2019

         Nagnath s/o. Malkarjun Hundekar,
         Age:45 years, Occu: Agri. & Business,
         R/o. Bamni, Tq. Hadgaon,
         District Nanded.                                      ...        PETITIONER
                                                                       (Orig. Plaintiff)
                VERSUS
1.       The Collector,
         Collector Office at Nanded,
         Tq. and Dist. Nanded.
2.       Land Acquisition Officer,
         Sub-Divisional Office,
         First Floor Nagar Parishad New Building,
         Hadgaon, Tq. Hadgaon, Dist. Nanded.
3.       Mandabai w/o. Malkarjun Hundekar,
         Age : 66 years, Occu: Nil
4.       Parvatibai w/o. Malkarjun Hundekar,
         Age : 59 years, Occu: Household.
5.       Ravindra s/o. Malkarjun Hundekar,
         Age : 51 years, Occu: Agri.
6.       Gajanan s/o. Malkarjun Hundekar,
         Age : 49 years, Occu: Agri.
7.       Mathura w/o. Sanjay Hundekar,
         Age: 39 years, Occu: Household
8.       Ramakant s/o. Malkarjun Hundekar,
         Age : 45 years, Occu: Agri.
         Respondent Nos.1 to 6
         all R/o. Bamni, Tq. Hadgaon,
         District Nanded.
9.       Archana w/o. Vishwanath Halde,
         Age : 39 years, Occu: Household,
         R/o. Jintur, Tq. Jintur, Dist. Parbhani.      ...       RESPONDENTS
                                                              (Org. defendants)

                               ...
Advocate for Petitioner : Mr. Mahesh V. Ghatge
Advocate for Respondent Nos.4&9: Mr. B.N. Gadegaonkar h/f. Mr. S.R. Bagal
Advocate for Respondent No.2 : Mr. Anilkumar B. Dhongade
AGP for Respondent No.1 : Mr. K.B. Jadhavar
Advocate for Respondents 3 and 5 to 8 : Mr. A.S. Deshmukh
                               ...


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                                                                            935.WP.13594.19.odt




                                    CORAM    :    MANGESH S. PATIL, J.

                                    DATE     :    08.10.2021
ORAL JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. At the

request of the parties, the matter is heard finally at the stage of admission.

2. The petitioner has filed a suit for general partition and separate

possession which is pending before the trial court. Some of the suit property

is acquired under the National Highways Act, 1956. By moving Application

(Exhibit-5) he sought temporary injunction restraining the respondent Nos.

1 and 2, who are the original defendant Nos.8 and 9, from disbursing the

amount of compensation in respect of the acquired property. He also prayed

for temporary injunction restraining the respondent Nos. 3 to 9, who are

defendant Nos.1 to 7, from alienating or creating third party interest in the

suit property. The learned Civil Judge has allowed the Application partly. He

granted temporary injunction restraining the respondent Nos.3 to 9 from

creating any third party interest.

3. The Civil Judge, however, refused to grant temporary injunction

against the respondent Nos.1 and 2 only on the ground that by virtue of the

provisions of Sections 63 and 64 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

(herein after 'the Act') the Civil Court had no jurisdiction to grant any such

injunction. The learned Civil Judge also has assigned one more reason by

holding that in view of an efficacious remedy available under Section 63 and

935.WP.13594.19.odt

64 read with Section 76 of the Act, coupled with the provisions of Section

41(h) of the Specific Relief Act, 1963 injunction cannot be granted.

4. The petitioner preferred the Miscellaneous Civil Appeal under

Section 104 of the Code of Civil Procedure and by the impugned judgment

and order the learned District Judge has dismissed the Appeal confirming

the observations and the conclusions that the Civil Court would not have

jurisdiction in view of the provisions of Sections 63 and 64 of the Act read

with Section 3(H)(4) of the National Highways Act.

5. After hearing both the sides it is quite apparent that the two

courts below have refused to even consider the relief of temporary

injunction being claimed by the petitioner on merits. They have proceeded

to refuse the relief only by referring to the provisions of Sections 63 and 64

of the Act.

6. It also transpires that in fact, the parties were also before the

respondent No.2 who is an authority under the National Highways Act.

However, by the order dated 06.08.2019, in spite of the fact of pendency of

the suit was brought to his notice, he simply directed disbursement to be

made, making it subject to the out come of the suit, instead of making a

reference under Section 3(H)(4) of the National Highways Act.

7. Suffice for the purpose to observe that going by the provisions

of Section 3(H)(4) of the National Highways Act, whenever there is any

dispute as to the apportionment or entitlement, raised before the competent

authority he is obliged to refer the dispute for the decision of the Civil Court.

935.WP.13594.19.odt

It is in view of such a statutory mandate, it was imperative for the

respondent No.2 to have referred the dispute for the decision of the Civil

Court under that provision instead of simply passing an order making it

subject to the out come of the decision in the Suit.

8. Be that as it may, admittedly, the parties are already before the

Civil Court. Admittedly a portion of one of the suit property has been

acquired under the National Highways Act, 1956. In view of such state of

affairs, any reference to Sections 63 and 64 of the Act, is incorrect. When

the lands have been acquired under the National Highways Act, going by the

provisions of Section 3(H)(4), it is only the Civil Court which can decide the

dispute. Since the parties have been already before the Civil Court, the two

courts below could not have refused to consider the prayer on its own

merits. It is in view of such state of affairs, it would be just and proper to

remand the matter for a fresh consideration by the trial court regarding the

prayer for restraining the respondent/defendant Nos. 8 and 9 from

disbursing the amount, on its own merits.

9. The Writ Petition is partly allowed. The part of the order passed

by the learned Civil Judge on the Application (Exhibit-5) in RCS

No.466/2018 as also the judgment and order passed by the learned District

Judge in Miscellaneous Civil Appeal No.37/2019 are quashed and set aside.

The matter is remanded to the trial court. The concerned Judge of the Civil

Court shall now decide the Application (Exhibit-5) afresh by extending

opportunity to both the side to address it, to the extent of the prayer

935.WP.13594.19.odt

restraining the respondent Nos.1 and 2 herein (defendant Nos.8 and 9 in the

suit) from disbursing the amount.

10. It is made clear that the portion of the order by which

temporary injunction has been granted by the trial court restraining the

respondent No.3 to 9 herein from alienating or creating third party interest

in the suit property is not being disturbed.

11. The interim relief passed in the present matter shall continue

till such decision by the trial court. The trial court shall decide the

Application as early as possible and in any case within a period of two

months.

12. The Rule is made absolute in above terms.

(MANGESH S. PATIL, J.)

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