Maharashtra State Road ... vs Zumber Sakhyari Shitole And Ors
2023 Latest Caselaw 9384 Bom

                                       908-wp5208-2022 with wp9092-2022.doc


 AGK
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO.5208 OF 2022

 Maharashtra State Road Development
 Corporation Ltd.                               ... Petitioner
            V/s.
 Zumber Sakhyari Shitole & Ors.                 ... Respondents

                                 WITH

                     WRIT PETITION NO.9092 OF 2022

 Zumbhar Sakhahari Shitole & Ors.
                                                ... Petitioners
            V/s.
 Maharashtra State Road Development
 Corporation Ltd. & Ors.                        ... Respondents




 Mr. Vijay D. Patil for the petitioner in WP/5208/2022.
 Mr. Rupesh A. Zade with Ms. Priyanka Gupta for the
 petitioners in WP/9092/2022 & for the respondents in
 WP/5208/2022.
 Mr. C.D. Mali, AGP for State.
 Ms. Shehnaz V. Bharucha for respondent No.8 in
 WP/5208/2022.
 Mr. Ishan Paradkar with Mr. Shekhar Jagtap for
 respondent Nos.2(B) & 2(C)in WP/5208/2022.



                               CORAM : AMIT BORKAR, J.

                               DATED     : SEPTEMBER 6, 2023






                                        908-wp5208-2022 with wp9092-2022.doc


 P.C.:

1. Arguable questions are raised. Hence, Rule.

2. In so far as grant of interim relief is concerned, the writ petitions arise out of suit filed by respondent Nos.1 to 3 in Writ Petition No.5208 of 2022. The suit is filed mainly on the ground that without acquisition of the suit property, the petitioner (MSRDC) is not entitled to construct road over properties owned by respondent Nos.1 to 3. There is no serious dispute between the parties regarding construction of road up till 7 mtrs. The Trial Court and the Appellate Court have recorded a finding that road up till 7 mtrs. is in existence. The dispute between the parties is in relation to construction of road beyond 7 mtrs. There is also no dispute about the fact that land from 17 mtrs. to 20 mtrs. has already been acquired by the petitioner.

3. According to the petitioner, in the area beyond 7 mtrs. road was in existence for last 30 to 40 years. This fact is within the knowledge of the plaintiff. Despite said fact, the plaintiffs have not claimed compensation and, therefore, at this stage they cannot claim any rights as regards property beyond 7 mtrs.

4. Per contra, learned Advocate for the plaintiffs claims that there is no construction of road for the area beyond 7 mtrs. There is no acquisition. There is no award. Therefore, the petitioner has no right to construct over the said land.

5. It appears that the Courts below have granted injunction restraining petitioner from constructing road beyond 7 mtrs. It is not in dispute that the construction of highways over area beyond

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7 mtrs. would form infrastructure project within the meaning of Section 41(ha) of the Specific Relief Act. 1963. The Apex Court in paragraph 21 of the N.G. Projects Limited v. Vinod Kumar Jain & Ors. reported in (2022) 6 SCC 127 has observed as under:

"21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the writ court while exercising its jurisdiction under Article 226 of the Constitution of India."

6. In view of statutory prescription under Section 41(ha) interpreted by the Apex Court in N.G. Projects Limited (supra), the Courts below could not have restrained the petitioner from carrying out construction of road. However, the issue raised by the plaintiffs that they are entitled to compensation for the area beyond 7 mtrs. needs to be decided by the Trial Court at the time of hearing of the suit in the light of law laid down by the Apex Court and various other Courts. Hence, following order:

a) The impugned judgment and orders passed by the Courts below, and in particular order dated 10 November 2020 passed by the Trial Court as confirmed by the Appellate Court by order dated 29 October 2021 shall remain stayed;

b) The Trial Court shall frame appropriate issue in relation to the grievance raised by the plaintiffs and defendant about the right of plaintiffs to claim compensation and shall decide the claim of

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the plaintiffs in accordance with law;

c) Considering the facts of the case, the Trial Court shall decide the suit as expeditiously as possible.

(AMIT BORKAR, J.)