Jayant Vitthal Dawkhare And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 14770 Bom

                                   1                        WP.7347-18.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION No.7347 OF 2018

     1.      Jayant Vitthal Dawkhare,
             Age : 54 years, Occu. Agriculture and service,
             R/o 1958, J. P. Road, Sangamner,
             District Ahmednagar.

     2.      Vaibhav Vitthal Dawkhare,
             Age : 44 years, Occu. Agriculture and service,
             R/o 1958, J. P. Road, Sangamner,
             District Ahmednagar.

     3.      Swati Nitin Nilgar,
             Age : 52 years, Occu. Household,
             R/o Bhoom, District Osmanabad.

     4.      Jyoti Subash Nirhali,
             Age : 50 years, Occu. Household,
             R/o 9, Narayan Niwas, Shanti Nagar,
             Wagale Estate, Thane West.

     5.      Shailaja Ramkant Pulkundwar,
             Age : 48 years, Occu. Household,
             R/o Mehar Nagar, Garkheda,
             Aurangabad, District Aurangabad.

     6.      Vaishali Ashok Wavdhane,
             Age : 46 years, Occu. Household,
             R/o 1958, J. P. Road, Sangamner,
             District Ahmednagar.

     7.      Kusum w/o Vitthalrao Dawkhare,
             Age : 75 years, Occu. Agriculture and household,
             R/o 1958, J. P. Road, Sangamner,
             District Ahmednagar.              ... Petitioners

                      Versus




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                                       2                       WP.7347-18.odt



     1.      The State of Maharashtra,
             Through Secretary, Public Works Department,
             Mantralaya, Mumbai-32.

     2.      The Union of India,
             Through its Secretary,
             National Highway Authority of India
             New Delhi.

     3.      The Executive Engineer,
             National High Way Division No.9,
             Bombay - Agra Road, Nashik,
             District Nashik.

     4.      The Competent Authority and
             Sub Divisional Offcer,
             Sangamner Division,
             Sangamner, District Ahmednagar.

     5.      Janardhan S/o Digambar Dawkhare,
             Age : 58 years, Occu. Agriculture,
             R/o Sultanpur, Tq. Achalpur,
             District Amravati.                ... Respondents

                                    ...
                Advocate for Petitioners : Mr. A. S. Bajaj.
             AGP for Respondent No.1-State : Mr. P. S. Patil.
          Advocate for Respondent Nos.2 to 4 : Mr. A. N. Patale
                           (Standing Counsel).
           Advocate for Respondent No.5 : Mr. K. N. Shermale.
                                    ...

                               CORAM : RAVINDRA V. GHUGE AND
                                       S. G. MEHARE, JJ.

RESERVED ON : 23.09.2021 PRONOUNCED ON : 08.10.2021

3 WP.7347-18.odt

JUDGMENT : (Per S. G. Mehare, J.) :-

1. Rule. Rule made returnable forthwith and heard

fnally by the consent of the parties.

2. The petitioners approached this Court seeking writ

of mandamus or any other writ, order, or direction in

the nature of a writ of mandamus. Respondent Nos.3

and 4 be directed to release the enhanced compensation

towards the lands acquired to the extent of 1 H. 2 Are

from village Kasara Dumala, Taluka Sangamner, District

Ahmednagar in favour of the petitioners as per the

award dated 31.10.2013 passed by the Arbitrator-Cum-

Collector, National Highways Authority.

3. The brief facts relevant to determine the

controversy are narrated as follows:

a) The petitioners are the grand children of the cousin

uncle of respondent No.5. The petitioners are the

owners of Survey Nos.44/9, (old survey No.44/5/A/

1) admeasuring 1 H. 80 Are, and Survey No.44/34

(old survey No.44/5/B/2) measuring 82 Are at

4 WP.7347-18.odt

village Kasara Dumala, Tq. Sangamner, District

Ahmednagar. The above lands had fallen to the

share of their grandfather Dattatraya Laxman

Dawkhare and after him to the petitioners' father,

namely Vitthal Dattatraya Dawkhare.

b) The land admeasuring 1 H. 2 Are out of the above

survey numbers was acquired under the National

Highways Act. The Competent Authority had passed

an award on 24.04.2006.

c) The petitioners had fled an application before the

Arbitrator-Cum-Collector, Ahmednagar, under

Section 3(G)(5) of the National Highways Act 1956.

('1956 Act' for short). The Arbitrator-Cum-Collector

was pleased to allow the application granting

enhanced compensation. After the Arbitrator

passed the award, the amount determined by him

was deposited with respondent No.4, the Competent

Authority Land Acquisition authorized by the

Central Government by notifcation issued under

the 1956 Act.

                                        5                        WP.7347-18.odt



     d)     Respondent No.4 issued a notice to the petitioners

dated 19.05.2016 calling upon them to collect the

compensation determined by the Arbitrator-Cum-

Collector, Ahmednagar. However, respondent No.5

raised an objection on 18.04.2016 and claimed the

share in the compensation amount before

respondent No.4.

4. Respondent No.5 Janardhan had fled a suit for

partition and separate possession before the Civil Judge

Junior Division, Sangamner. The acquired lands were

also the suit properties in the said suit. However, on

05.10.1995, he withdrew the said suit unconditionally.

5. Until the Arbitrator determined the compensation

amount, respondent No.5 never raised any objection,

neither before the Arbitrator nor respondent No.4.

Since the amount of compensation determined by the

Arbitrator was high, respondent No.5 raised a false

claim of his share in the acquired lands on 18.04.2016.

6 WP.7347-18.odt

6. The petitioners further submit that a charge was

created on the properties in question for Rs.30,000/- in

respect of the whole property shared by the grandfather

of petitioners' and the real uncle of respondent situated

at village Samnapur and Kasara Dumala to be shared

by the grandfather of petitioners', and real uncle of

respondent No.5. The entry of said charge was deleted

with the consent and statement of the father of

respondent No.5 in 1970 by Circle Inspector. However,

the entry of the charge remained intact till 1996. The

deceased father of the petitioners applied to delete that

entry from the record. The said entry was deleted by

following the procedure of law vide mutation entry

No.2269 dated 12.04.1996. They took a stand that the

mutation entry in the other rights column creating a

charge of Rs.30,00 was deleted mala fde. The said entry

was deleted with the consent and statement of

Digambar (the father of respondent No.5) in 1970 vide

mutation Entry No.2269 dated 12.04.1996.

Unfortunately, in the mutation entry, though the

statement of Digambar was recorded, the name of

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Shantabai was mentioned. Respondent No.5 is taking

disadvantage of that inadvertent mistake.

7. Respondent No.5 impugned the mutation entry

Nos.2269 and 377 before the Sub Divisional Offcer,

Sangamner, along with delay condonation application.

The present petitioners opposed the delay condonation

application. However, the learned Sub Divisional Offcer

was pleased to condone the delay by an order dated

12.03.2018 and posted the case for further hearing.

Petitioner Nos.1, 2, and 7 impugned the order of the Sub

Divisional Offcer, Ahmednagar, before the Additional

Collector, Ahmednagar, by way of two separate revisions.

The Additional Collector was pleased to dismiss the

revisions by two separate orders dated 10.04.2018 and

27.04.2018. Against the said orders, the petitioners

have preferred writ petition No.7473 of 2018. The

Hon'ble Single Bench of this Court is pleased to grant

the status quo order in favour of the petitioners.

8. Respondent No.4 fled affdavit-in-reply contending

that respondent No.5 Janardan and Jagannath (the

8 WP.7347-18.odt

brother of respondent No.5) have fled a written

objection dated 18.04.2016. They have informed that

there is a dispute regarding land survey No.44/9 of

Village Kasara Dumala and contended not to pay

enhanced compensation to the petitioner Nos.1 to 7.

Respondent No.5 also preferred R.T.S. Appeal No.225 of

2016, in which ad-interim stay is granted. Therefore,

the enhanced compensation is not yet paid to the

petitioners. The dispute between the petitioners and

respondent No.5 needs to be decided by the Civil Court.

The petitioners have fled a Writ Petition No.7473 of 2018

before the Hon'ble High Court. The matter is related to

the same dispute wherein this Court has granted

status quo to the proceedings and in respect of

mutation entries.

9. The learned counsel for respondent No.5 made a

statement before the Court that respondent No.5 is the

legal heir of the son Balaji. Hence has an interest in the

lands acquired. Since the petitioners have obtained the

stay in Writ Petition No.7473 of 2018, the amount of

9 WP.7347-18.odt

compensation has been correctly not released by

respondent No.4. A serious issue of fraudulent mutation

entry is involved, and it is pending before the Competent

Authority. Respondent No.5 is the son of Digambar, and

he has 1/3rd share in the acquired lands. The petitioners

deliberately deprived him of his legal and legitimate

right to have a share in the acquired land. Therefore,

the petition deserves to be dismissed.

10. The learned counsel Mr. Bajaj for the petitioners

would argue that the Hariba had owned the various

landed properties, including the acquired land.

Respondent No.5 and the petitioners are from different

branches. The petitioners are the grand sons and grand

daughters of Dattatray, who was the cousin of the father

of respondent No.5. The great grandfather of the

petitioner, namely Laxman predeceased his real brother

Balaji. Balaji, in his lifetime by way of registered will

deed dated 16.12.1942 made a family

arrangement/partition of the properties among the

family members. The father of petitioners and the

10 WP.7347-18.odt

father and uncle of respondent No.5 jointly got equal

share in the properties of Hariba. The petitioners'

grandfather got properties of Village Kasara Dumala, in

the oral partition in petitioners' grandfather and the real

uncle of respondent No.5, namely Tukaram. Under the

will, share in one house was given to the father of

respondent No.5 and charge of Rs.30000/-, was created

on all lands to be shared by Tukaram and the

grandfather of petitioners. The entry of said charge was

recorded in the other rights column in the revenue

record. The father of the petitioners' paid the money of

his share to release the charge. The statement in that

regard was recorded by the Circle inspector in 1970.

However, its entry remained intact and corrected vide

mutation entry No. 2269 dated 12.04.1996. Respondent

No.5 never objected to the title of the father of the

petitioner. He withdrew the partition suit

unconditionally. To bolster his arguments, he referred to

the copy of the plaint from the paper book of this

petition on page Nos.49 to 55.

                                             11                         WP.7347-18.odt

     11.      He     would       further     argue     that      in     no        case,

     respondent           No.5    can       claim    1/3rd     share         in    the

compensation amount. He can claim a share in the

properties gone to the share of his real uncle.

Respondent No.5 never disputed the will of Balaji and

the charge of Rs.30,000/- was on the entire land. His

father in his life never disputed the family arrangement.

Withdrawal of the suit unconditionally has adverse

effects. Now the respondent No.5 cannot object to the

title. A huge amount, around two crores, is lying

without any use with respondent No.4 since 2016. It is

lying without investment in the Bank. It is a huge loss

to the petitioners. Respondent No.5 has no prima facie

interest in the acquired lands, and hence respondent

No.4 be directed to release the compensation amount

immediately in favour of the petitioners. Another petition

fled by this petitioner has no bearing or concern with

releasing the compensation amount.

12. Per Contra learned counsel Mr. K. N. Shermale for

respondent No.5 would vigorously argue that the

12 WP.7347-18.odt

petitioners have obtained the stay to the revenue

proceeding in W.P.No.7473 of 2018. Hence, the entire

proceeding before respondent No.5 is stalled. The fraud

is played, and the entry of charge in favour of the father

of respondent No.5, was deleted, and thereby his legal

heirs are deprived of the legitimate share in the acquired

lands. Prima facie respondent No.5 has 1/3rd share in

the compensation amount. Until the appeal challenging

the mutation before the Sub Divisional Offcer is

decided, respondent No.4 cannot apportion the

compensation amount. In this situation, respondent

No.4 is correct in not apportioning the amount. The

title of the acquired lands is apparently under the

shadow of a doubt. Hence, no direction as prayed by the

petitioner can be given. The petition is devoid of merit.

Therefore, it be dismissed.

13. The learned AGP for respondent No.4, adopting the

arguments of respondent No.5, added that respondent

No.4 was willing to decide the objection under section

3H (3) of the National Highway. However, the dispute of

13 WP.7347-18.odt

mutation entry was seized with the competent Revenue

Authority, he could not decide the objection. He had no

intention to violate the right of either claimant. He had

no interest in detaining the compensation amount.

14. It is apparent from the paper book of the petition

and the arguments advanced by the respective counsels

that the dispute of shares amongst the petitioner and

respondent No.5 has a chequered history. It is

undisputed that respondent No.5 had claimed his share

by knocking on the doors of Civil Court by fling suit.

However, he withdrew it unconditionally. Then,

respondent No.5 again raised a dispute of his share by

way of objection before respondent No.4 after the

compensation amount was deposited with him.

Respondent No.4, in his affdavit-in-reply, has

contended that if any objection is raised on the

compensation amount of land acquisition, claiming the

share in that amount, the Competent Authority under

Section 3H (3) of the 1956 Act is empowered to decide to

whom the compensation amount is to be paid.

14 WP.7347-18.odt

Accordingly, he issued the notices to both the side. But

due to the ad-interim stay in R.T.S appeal, the

compensation is yet not disbursed.

15. The various factual issues have been involved in

the dispute among the petitioners and respondent No.5,

which are in the domain of the Civil Court. The disputed

facts usually are not dealt with under the extraordinary

jurisdiction under Article 226 of the Constitution of

India. But the question remains, how does the

Competent Authority respondent No.4 deal with the

objections or disputes raised falling under section 3H (3)

and (4) of the 1956 Act. Sub-section 3 of section 3H of

the Act 1956 imposes an obligation on the Competent

Authority to determine who is/are entitled to receive the

amount payable to each claimant claiming an interest in

the said amount.

16. In subsection 3 of Section 3H of the Act 1956,

there is a term "in its opinion". It means the Competent

Authority has to form an opinion based on the claims of

such persons. The Hon'ble Division Bench of this Court

15 WP.7347-18.odt

has dealt with sections 3H (3) and (4) of the 1956 Act in

Arun Vs. State of Maharashtra, W.P.No.1949 of 2017,

decided on Jun 29, 2017. The Hon'ble Division Bench

was discussing the issues and related provisions of law

and observed in paragraph Nos.13, 16 and 17 as

follows :

"13. Taking into consideration the scheme of the Act and the provision of sect 3-H (supra), the Central Government is expected to deposit the amount of compensation determined under section 3G in respect of the and acquired for building, maintenance, management, or operation of National Highway or part thereof. As per subsection (2) of section 3-H the competent Authority has to disburse that amount to the person/persons entitled thereto. Sub-section (3) provides that where there are several persons staking claim to be interested in the amount of such compensation, the competent authority is under obligation to determine and record its opinion as to the entitlement of such person/persons to receive such amount. Sub-section (4) then provides that wherever there is any dispute as to the apportionment of the amount or any part thereof, the competent authority has to refer the dispute to the decision of the Principal Civil Court of original Jurisdiction within limitation of whose jurisdiction the land situates."

"16. It is a settled principle of interpretation of statute that the provisions of any statute are to be interpreted to give effect to each of them to the extent possible without giving any rise to any confict or overlapping. This principle of harmonious construction needs to be applied in the matter before hand vis a vis sub-section (3) of section 3-H, while interpreting Sub-section (3). Such application would lead us to interpret these provisions in harmonious manner putting neither of otiose. A careful reading of these provisions would reveal that when

16 WP.7347-18.odt

several persons are entitled to claim compensation, the competent authority has power and jurisdiction to record an opinion and determine the persons who are entitled to receive share/s and only enables him to apportion the amount of compensation amongst them according to the share they are entitled to. As against this, Sub-section (4) contemplates a situation where the dispute is raised as to the entitlement of the compensation by several persons and the jurisdiction to decide such dispute is conferred upon the Principal Civil Court of Original jurisdiction. In other words, whenever there is dispute raised by any person as to the right to receive either the whole or portion of the compensation, the competent authority is obliged to refer the matter to the Principal Civil Court of Original jurisdiction."

"17. In view of such legal position, when Sub-section (4) of Section 3-H specifcally requires the dispute as to entitlement to receive compensation determined under Section 3-G of the Act to be referred to and decided by the Principal Civil Court of original Jurisdiction, it by implication necessarily excludes jurisdiction of the competent Authority which is entitled to merely decide the point of apportionment of compensation amongst several persons under Sub-section (3) of Section 3-H. Such interpretation, in our view, strikes a balance between Sub -section (3) and Sub-section (4) of the Act and make them operative in separate spheres. The submission of the learned Advocate for the petitioner, on these lines therefore deserves to be accepted".

17. The clear mandate in the above case is, the

Competent Authority cannot sit over the objection. He is

obliged to form an opinion on who is/are entitled to the

compensation. On determining such share/s he has to

offer the same to respective parties. If the parties

17 WP.7347-18.odt

dispute it again, he must refer the dispute to the

Principal Civil Court of original jurisdiction. The

material available before him and documents and facts

of the claims may be the basis for his opinion.

18. So far as the lands to be acquired under the 1956

Act is concerned, where the Central government is

satisfed that for the public purpose any land is required

for the building, maintenance, management, and

operation of the National Highways, it may, by

notifcation in the Offcial Gazette, declare its intention

to acquire such lands. After the declaration of such

intention, within twenty-one days, the person interested

may object to the use of land for the purpose or

purposes mentioned in Sub-section (1) of Section 3-A of

the Act 1956. Such objection may either be raised

personally or through a legal practitioner before the

Competent Authority. The competent Authority on giving

a hearing to the concerned and making such further

inquiry, either allow or disallow the objections. Any

order passed by the Competent Authority is fnal.

18 WP.7347-18.odt

19. In the case at hand, the petitioners have a specifc

case that until the Arbitrator passes an award, no

objection was raised by respondent No.5 because the

Arbitrator determined the market price of the acquired

lands in crores. Respondent No.5 has made no

comments on these facts. However, he came with a new

plea against his partition suit of 1990, that the

petitioners have played fraud and got the entry of charge

removed from the other rights column from the revenue

record. Since the Sub Divisional Offcer granted the stay

to the disputed mutation, respondent No.4 has sat over

the objection from 2016. The petitioners have no dispute

that the charge of Rs.30,000/- was created on all the

lands to be equally shared by the natural and cousin

uncles of respondent No.5. It is a matter of fact-fnding

on the basis of the evidence produced by the disputing

parties before the competent Court of law. The

petitioners argue that they have removed the charge to

the extent of their share long back in 1970. However, the

entry remained intact till 1996. These are the highly

19 WP.7347-18.odt

disputed facts. Hence we are not touching those issues

because it is a matter in the domain of competent Civil

Court.

20. Fortunately, the parties agree on genealogy.

Respondent No.5 claimed the share on the pre-existing

title in the acquired lands. The withdrawal of the suit

has a defnite legal effect. However, it is again in the

domain of a competent Civil Court.

21. The petitioners have strongly claimed that

objector/ respondent No.5 has no exclusive title. In the

worst case, he cannot claim more than the value of the

charge of Rs.30,000/-, which is not to be paid by them

wholly. The real uncle of respondent No.5 also has to

share the payment to release the charge. The petitioner

raised a serious issue that a considerable amount is

lying without investment and interest. It is causing a

great loss to them.

22. Section 100 of the Transfer of Property Act speaks

of the term "Charge". It may be created by the acts of

20 WP.7347-18.odt

parties by any document showing an intention to make

the land security for the payment of money.

23. In the appeal memo at paper book page Nos.76 to

84 of this petition reveals that respondent No.5 has

specifcally mentioned that instead of giving a share to

his father in the felds, his real and cousin uncles'

branch agreed to pay Rs.30,000/- towards his share,

along with interest. The entry, bearing No.375 was

recorded to that effect in the revenue record. None of his

family had given consent to remove that entry. The

petitioners got it removed fraudulently. If these factums

are borne in mind, respondent No.5 may have a right to

claim the amount to the extent of the liability of the

petitioner only. Prima facie, these facts may be

suffcient to determine the share of respondent No.5

without prejudice to the rights of share and title of both

the parties. In the light of the facts of the case, we are

of the view that detaining such a huge amount without

investment is a great loss not only to the petitioner but

also to respondent No.5.

21 WP.7347-18.odt

24. The compensation amount remained undisbursed

due to the dispute after determining the objection

under sub-section (3) and (4) of Section 3-H of the Act of

1956. The Competent Authority has to deposit such

amount with the Principal Civil Court of original

jurisdiction while referring the dispute under Sub-

section (4) of Section 3-H of the Act 1956, as provided

under Rule 4 of the National Highways (manner of

depositing the amount by the Central Government

making requisite funds available to the competent

authority for acquisition of land) Rules 2019. In such a

situation, the Principal Civil Court of original

jurisdiction may disburse the compensation amount on

certain conditions either to the extent of share partly or

wholly to either party who has a strong prima facie

claim.

25. In view of the above, we allow the petition partly

with the following directions :

A] The competent Authority/ respondent No.4 on giving the hearing to the

22 WP.7347-18.odt

contesting parties, shall decide the objection dated 18.04.2016, raised by respondent No.5 within two months from the date directing the petitioners and respondent No.5 to appear before him, as envisaged in Sub-sections (3) and (4) of Section 3-H of the National Highways Act 1956.

B] The petitioners and respondent No.5 shall appear before the Competent Authority/ respondent No.4 on 18.10.2021.

            C]       In case of referring the dispute to the
                     Principal       Civil      Court     of      original
                     jurisdiction     under      Sub-section        (4)    of

Section 3-H of the National Highways Act 1956, respondent No.4 shall deposit the entire amount of compensation to the Principal Civil Court of original jurisdiction.

D] On depositing the compensation amount by respondent No.4, if any, the parties are at liberty to withdraw the amount, during the dispute is pending before the Principal Civil Court of original jurisdiction.

                                      23                         WP.7347-18.odt

            E]       It is made clear that no court shall be

infuenced by the fndings recorded in this case if any suit/proceeding regarding the acquired lands, is fled.

26. Rule is made partly absolute.

(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)

...

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