Bombay High Court
Balasaheb Bhika Aghade vs The State Of Maharashtra And ... on 14 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 WP / 5573 / 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 WRIT PETITION NO. 5573 OF 2021
BALASAHEB BHIKA AGHADE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. A.B. Kale h/f. Mr. Vaibhav Deshmukh
AGP for the respondent - State : Mr. S.B. Yawalkar
Advocate for the respondent no. 4 : Mr. S.S. Kulknari h/f. Mr. Rajdeep Raut
Respondent no. 3 - served - absent.
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 14 SEPTEMBER 2022
ORAL ORDER (MANGESH S. PATIL, J.) :
Heard learned advocate for the petitioner and the learned
AGP.
2. The petitioner is claiming following reliefs :-
"B) To kindly direct the respondents to acquire the land
of the petitioner sitatuted in Gat No. 215 of village
Ghatshendra Tq. Kannad Dist. Aurangabad which
have been taken into possession since 2008 for
construction of road by issuing writ of mandamus or
any other writ or order in the like nature;
C) To kindly grant stay to the construction of said road
till the final disposal of the present writ petition and
for that purpose issue necessary order.
D) To kindly direct the respondents that during the
pendency and final disposal of this Writ Petition, the
respondents to deposit 50% amount along with
interest in this court within two weeks and for that
purpose issue necessary order."
2 WP / 5573 / 2021
3. It is quite apparent that the petitioner is asserting that he is
the owner in exclusive possession of the land Gat no. 215 and further
alleges that his possession was taken by the respondents in the year
2008 for construction of road without undertaking any process of land
acquisition.
4. It transpires during the course of arguments that the
petitioner had filed Special Civil Suit no. 101 of 2009 with the following
prayers :-
"A) Suit of the plaintiff may kindly be decreed with costs.
B) It be declared that the plaintiff is entitled to get
damages of Rs. 15 lacs as against the defendants
jointly and severally towards the encroachment on the
land Gat No.215 of plaintiff and also against cutting of
standing trees and creation of road through the land of
plaintiff, while passing appropriate decree thereof.
C) The defendant No. 1 to 4 be directed to pay amount of
Rs.15 lacs with bank interest till realisation of the said
amount while passing appropriate decree thereof.
D) The defendants be directed to initiate appropriate
proceeding before the competent authority for inquiry
of acquisition and payment of compensation as
contemplated under the provisions of the Land
Acquisition Act.
E) And/or any other suitable or equitable relief to which
the present plaintiff is found entitled may kindly be
awarded in his favour and oblige."
3 WP / 5573 / 2021
5. The suit was dismissed by the judgment and order dated
29-04-2019 and even according to the petitioner, he did not challenge
it.
6. Though the only issue regarding the alleged encroachment
over the selfsame writ property and regarding cutting down of the trees
from it was framed and decided in that suit, going by the reliefs claimed
in the suit, the petitioner had called upon the civil court to decide his
title and even was seeking mandatory injunction directing the
respondents to undertake the process of land acquisition. He tacitly
allowed the suit to be decided as it is which has subsequently been
dismissed and the decision has now reached finality.
7. In view of such peculiar circumstances, the attempt of the
petitioner to once again approach this Court invoking writ jurisdiction
and claim the same reliefs which were the subject matter of the suit, is
a course which we cannot comprehend. The decision in the suit having
reached finality, even the principle of res judicata would be applicable.
8. The learned advocate for the petitioner vehemently
submits that the civil Court has no jurisdiction to decide the dispute
pertaining to the land acquisition and cites the decision of the Supreme
Court in the matter of State of Bihar Vs. Dhirendra Kumar & others;
1995 (2) Mh.L.J. 340.
4 WP / 5573 / 2021
9. We are afraid, the petitioner is not entitled to derive any
benefit from this decision. In that matter, after a declaration under
section 6 and the notification under section 9 was issued under the
Land Acqusition Act, 1894, the suit was filed and injunction was sought
obstructing the land acquisition process. In the matter in hand, the suit
was filed seeking a mandatory injunction directing the respondents to
initiate the land acquisition proceeding.
10. The writ petition is dismissed.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
