Bombay High Court
Baliram Sambhaji Gaikar And Anr vs The Competent Authority Alias Sub- ... on 21 March, 2025
Author: M S Sonak
Bench: M.S. Sonak
Digitally signed WP-3007.22.DOCX
2025:BHC-AS:13622-DB
by LAXMIKANT
LAXMIKANT GOPAL
GOPAL CHANDAN
CHANDAN Date:
2025.03.25
12:52:03 +0530
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3007 OF 2022
1] Baliram Sambhaji Gaikar, ]
Aged 66 Yrs, R/o, Village Dapivali, ]
]
2] Sanjay Sambhaji Gaikar ]
Aged 62 Yrs, R/o. Village Dapivali, ]
Both R/O- Eranjad, Tal. Ambarnath, ]
Dist. Thane. ]...Petitioners
Versus
1] The Competent Authority @ ]
Sub-Divisional Officer, ]
Kalyan Sub-Division, Kalyan. ]
]
2] Nilesh Shivaji Gaikar, ]
Aged 36 Yrs, R/o. Village Dapivali, ]
Post Eranjad, Tal. Ambarnath, ]
Dist. Thane. ]
]
3] Ganesh Shivaji Gaikar, ]
Aged 38 Yrs, R/o. Village Dapivali, ]
Post Eranjad, Tal. Ambarnath, ]
Dist. Thane. ]
]
4] Nirmalal Balaram Meher, ]
Aged --- Yrs, ]
]
5] Ranjana Balu Karale @ ]
Mai Sambhaji Gaikar ]
Aged --- Yrs, ]
]
6] Karuna Pandit Ghare, ]
Page 1 of 10
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WP-3007.22.DOCX
Aged --- Yrs, ]
7] Aruna Prakash Bhagyawant ]
Aged --- Yrs. ]
]
8] Roshan Dashrath Tembe, ]
Aged --- Yrs, ]
]
9] Jitendra Dashrath Tembe, ]
Aged --- Yrs, ]
Nos. 3 to 9 R/o. Tal. Kalyan, ]
Dist. Thane. ]
]
10] Sangita Shantaram Dhonde, ]
Aged 56 Yrs, R/o. Chikhloli Gaon, ]
Tal. Ambarnath, Dist. Thane ]
]
11] Mahesh Mangal Bhoir, ]
Aged 30 Yrs, R/o. Chikhloli Gaon, ]
Tal. Ambarnath, Dist. Thane ]...Respondents
______________________________________________________
Mr Vijay Killedar, for the Petitioners.
Ms M. S. Bane, AGP for the Respondent-State.
Mr.Ashutosh Wani, for Respondent Nos. 2 and 3.
Mr. Ashwin Kapadnis, for Respondent Nos. 10 and 11.
______________________________________________________
CORAM M.S. Sonak &
Jitendra Jain, JJ.
DATED: 21 March 2025
ORAL JUDGMENT :- (Per M S Sonak, J)
1. Heard Mr. Vijay Killedar learned counsel for the
Petitioners, Ms. M S Bane, learned AGP for the Respondent-
State, Mr. Ashutosh Wani, learned counsel for Respondent
Nos. 2 and 3, and Mr. Ashwin Kapadnis learned counsel for
Respondent Nos. 10 and 11 (legal representatives of Pushpa
Mangal Bhoir)
WP-3007.22.DOCX
2. This Petition challenges the Order dated 31 December
2021 (Exhibit D at pages 41 to 48) made by the Competent
Authority and Sub Divisional Officer, Kalyan (Respondent
No.1).
3. At the outset, Mr. Killedar and Mr. Kapadnis submit that
the impugned order dated 31 December 2021 was made inter
alia against Pushpa Mangal Bhoir, who had already expired in
1994. The legal representatives of Pushpa Bhoir were neither
brought on record nor issued any notice before the impugned
order was made. On this ground, they submit that the
impugned order is a nullity. They rely on N. Jayaram Reddy
and Another vs. Revenue Divisional officer and Land
Acquisition Officer, Kurnool1 to support this argument.
4. Mr Killedar and Mr Kapadnis further point out that the
impugned order, in any event, proceeds on the basis that the
sisters have no right in the co-coparcenary property. They
submit that this is a complete misconception and in terms of
the law and decided cases, the sisters have an equal right in
the co-parcenary property. They submit that on this ground
also the impugned order warrants interference.
5. Ms Bane, the learned AGP, submits that the Competent
Authority can determine the compensation entitlement under
the Scheme of the National Highways Act. However, in terms
of Section 3H (4), if any dispute arises as to the
apportionment of the amount or any part thereof or to any
person to whom the same or any part thereof is payable, the
competent authority shall refer the dispute to the decision of
the principal civil court of original jurisdiction within the
(1979) 3 SCC 578
WP-3007.22.DOCX
limits of whose jurisdiction the land is situated. She submitted
that the impugned order is consistent with the provisions of
Section 3H (4) of the National Highways Act. She relied on
Vinod Kumar and others Vs. District Magistrate, Mau and ors. 2
and Sojar Vs. Krishnath and others.3 to support her
arguments.
6. Ms. Bane and Mr. Ashutosh Wani submitted that the
impugned order is not only against Pushpa Bhoir but against
several parties who were duly heard. They submitted that the
estate was well represented by others interested in the
acquired properties. They pointed out that the legal
representatives of Pushpa Bhoir have not filed any Petition to
challenge the impugned order. Still, they are merely
supporting this Petition which is instituted by Baliram Gaikar,
who was very much alive and heard when the impugned
order was made.
7. Ms. Bane and Mr. Ashutosh Wani submit that the
impugned order promotes substantial justice, and even if this
order is set aside to grant the legal representatives of Pushpa
Bhoir another opportunity, the Competent Authority would
have no option but to refer the apportionment dispute to the
District Court which is precisely what the impugned order has
done. Accordingly, they submit that this Court should not
interfere with the impugned order based on the technicalities
now cited by the Petitioners in exercising its equitable and
discretionary jurisdiction under Article 226 of the
Constitution.
2023 SCC OnLine SC 787
2025 SCC Online Bom 307
WP-3007.22.DOCX
8. The rival contentions now fall for our termination.
9. The Scheme of Section 3H of the National Highways Act
is discussed in Sojar Vs. Krishnath (supra) and Vinod Kumar
(supra).
10. Paragraph 27 of Sojar (supra) is transcribed below for
the convenience of reference: -
In Vinod Kumar (supra) the Hon'ble Supreme Court has
discussed the scheme of the NH Act with special emphasis
on Sections 3G and 3H in paragraph 23, which reads as
follows: -
"23 The scheme of the Act 1956 and the statutory
provisions referred to above makes it very clear that
once any land is acquired under the Act 1956, the
competent authority is obliged to pay an amount by
way of compensation. There is a procedure which has
been prescribed under Section 3G of the Act 1956.
Sub-clause (5) of Section 3G makes it abundantly
clear that if the amount determined by the
competent authority under sub-section (1) or sub-
section (2) of Section 3G is not acceptable to either
of the parties, the amount will have to be determined
by the arbitrator who may be appointed by the
Central Government on the strength of an application
by either of the parties. Section 3H provides that the
amount determined towards compensation under
Section 3G will have to be deposited by the Central
Government in accordance with the rules. It is only
after such amount is deposited by the competent
authority that the possession of the land can be
taken. Sub-clause (4) of Section 3H talks about
apportionment of the amount. The language of sub-
clause (4) of Section 3H is plain and simple. It
provides that if any disputes arises as to the
apportionment of the amount or any part thereof, the
competent authority is obliged to refer the dispute to
the decision of the Principal Civil Court of original
jurisdiction within the limits of whose jurisdiction the
land is situated."
11. In Vinod Kumar (supra) the Hon'ble Supreme Court
explained that there is a fine distinction between determining
the amount to be paid towards compensation and
WP-3007.22.DOCX
apportioning the amount. The Court pointed out that the
legislature has thought fit to confer powers upon the Principal
Civil Court of original jurisdiction to determine the dispute
regarding the apportionment of the amount. The Court also
held that there was a reason, why the legislature had thought
it fit to confer such power to the Principal Civil Court of
original jurisdiction. This reasoning is explained in paragraphs
27, 28 and 29 of Vinod Kumar (supra).
12. Following Vinod Kumar (supra), Sojar V/s Krishnath
(supra) also holds that the Competent Authority may proceed
to decide on the issue of entitlement, but if any dispute arises
to the apportionment of the amount even after determining
the entitlement, the Competent Authority must refer the
dispute to the decision of the Principal Civil Court of original
jurisdiction within the limits of whose jurisdiction the land is
situated.
13. The impugned order has held that there is a serious
dispute between the parties on the issue of apportionment.
Based on this, the Competent Authority has recalled the
compensation amount mistakenly paid to the Petitioners and
some other parties. The impugned order states that once such
an amount is recovered, it should be forwarded to the
Principal Civil Court of original jurisdiction so that the said
Court can adjudicate on the dispute of apportionment.
14. The impugned order is thus entirely consistent with the
provisions of Section 3H of the National Highways Act and the
decision of the Hon'ble Supreme Court in Vinod Kumar
(supra) and of this Court in Sojar (supra). Now the only
question is whether the Petitioners can fault the impugned
WP-3007.22.DOCX
order, not on the ground that the Petitioners are some legal
heirs of a party that had already expired, but on the ground
that one of the ten parties before the Competent Authority, i.e.
Pushpa Mangal Bhoir had expired, and her legal
representatives were not brought on record or heard before
the impugned order is made.
15. Significantly, Pushpa Mangal Bhoir's legal
representatives did not file a Petition to challenge this order.
Merely supporting the Petitioners' contention because such
support would benefit them differs from the legal
representatives challenging the impugned order. Mr Wani
advanced no argument about what the legal representatives of
Mangala Bhoir would have said had they been noticed. These
legal representatives are the beneficiaries of the
apportionment mistakenly made by the competent authority
by usurping jurisdiction reserved exclusively for the Court.
16. In any event, even if it is assumed that there was some
issue regarding the legal representatives of Pushpa Mangal
Bhoir, we do not think that this is a fit case to upset the
impugned order, which is otherwise an order entirely
consistent with the statutory scheme of Section 3H of the
National Highways Act and the decision of the Hon'ble
Supreme Court in Vinod Kumar (supra), based upon the
contention now raised. The jurisdiction under Article 226 of
the Constitution is extraordinary, equitable and discretionary.
The discretion must be exercised to promote justice. If justice
is a byproduct of even on an erroneous order, this Court
exercising its jurisdiction under Article 226 of the Constitution
is not bound to exercise its discretion and upset such an order
WP-3007.22.DOCX
merely because some legal point is made out. The overall
circumstances must be considered.
17. Even if we were to accept the Petitioners' contention and
set aside the impugned order based upon the ground that
Pushpa Mangal Bhoir had expired and her legal
representatives were not heard, still, on remand, the
Competent Authority would have no option but to perhaps
make the same order. Were the Competent Authority to decide
otherwise, such a decision would fall foul of the statutory
scheme of the National Highways Act and, more importantly,
the decision of the Hon'ble Supreme Court in Vinod Kumar
(supra) and this Court in Sojar (supra). Therefore, by setting
aside the impugned order, if the result would be to revive
another illegal order, then, we are not bound to interfere with
the impugned order when exercising our discretion under
Article 226 of the Constitution.
18. The decision in N. Jayaram Reddy (supra) was made in
an entirely different set of facts. The principle that an order
against a dead person is a nullity cannot be disputed; by
merely making out such a point, this Court cannot be
expected to exercise discretion under Article 226 of the
Constitution by ignoring the overall facts and circumstances of
this case. As noted earlier, it is not as if the Petitioners are
some legal representatives of the party who had expired. The
estate was otherwise well represented. The Petitioners were
given a full hearing before the impugned order was made.
19. For the above reasons, we dismiss this Petition.
WP-3007.22.DOCX
20. The Petitioners and the other parties whose bank
accounts have been frozen under the impugned order must,
within twenty days from today, remit the amounts incorrectly
received by them to the Competent Authority. If they fail to
do so, the Competent Authority must, within a month from
the expiry of the twenty-day period, take necessary steps to
recover such monies from the bank accounts and deposit the
same before the Principal Court of Civil Jurisdiction, i.e. the
Court of the Principal District Judge at Kalyan/Thane.
21. If, within twenty days, the parties who have wrongly
received the amounts do not deposit the same with the
Competent Authority, then such parties will be liable to pay
interest at the rate of 9% p.a. on this amount apart from
action for disobeying lawful orders. However, if the amount is
deposited within twenty days, they shall not be liable to pay
any interest on this amount.
22. A proper reference must be made to the Principal
District Judge at Kalyan/Thane so that all apportionment
disputes are adjudicated. Pushpa Mangal Bhoir's legal
representatives must also be parties to this reference.
23. The reference must be made within two months from
the date this order is uploaded. Upon receipt of the reference,
the Principal District Judge is requested to dispose of it as
expeditiously as possible, preferably within a year of its
receipt.
24. We clarify that we have not even remotely addressed the
issues of apportionment of compensation on merits. We have
interfered only because the competent authority had earlier
WP-3007.22.DOCX
usurped jurisdiction to apportion when the legislature has
vested this jurisdiction with the Court. Therefore, all parties'
contentions on the matter's merits are left open.
25. Since this is a dispute amongst parties claiming to be
coparceners and/or brothers and sisters, we think that
mediation must be attempted to resolve the disputes. The
parties must consider exploring this possibility and the Court,
upon reference must also make efforts in this direction.
26. This Petition is disposed of under the above terms
without any cost order. All concerned can act on an
authenticated copy of this order.
(Jitendra Jain, J) (M.S. Sonak, J)
