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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9579 OF 2021
1. Chhagan Ramchandra Pondkule
Age : 63
2. Kailaas Bhiva Pondkule
Age : 41
3. Shantabai Bhiva Pondkule
Age : 65
4. Dattatraya Bhiva Pondkule
Age : 43
5. Sunita Bhiva Pondkule
Age : 45
6. Sitabai Baban Pawar
Age : 60
7. Bapurao Ramchandra Pondkule
Age : 70
All adults, Indian inhabitants, Residing at : Vidani, Taluka: Phaltan, District: Satara, Maharashtra …Petitioners
Age : 70
2. Janardhan Shivram Pondkule
Age : 48
3. Laxman Shivram Pondkule
Age : 50
4. Pandurang Shivram Pondkule
5. Pandurang Shivram Potkule
6. Dadaso Govind Bhujbal
7. Laxman Shivram Pondkule
Ashwini Vallakati
8. Janardan Shivram Pondkule
9. Rajendra Kisan Abdagire
10. Sunil Buvasaheb Abdagire since deceased through LRs
10(a) Malti Sunil Abdagire
10(b) Rahul Sunil Abdagire
11. Amol Buwasaheb Abdagire
12. Anil Sawta Abdagire
13. Gajrabai Savta Abdagire
14. Vasant Narayan Nale
15. Dineshkumar Jetharamji Purohit
16. Sagar Sanjay Kodre
17. Sonal Bhushan Mali
18. Komal Jigar Gawli
19. Nirmala Sanjay Kodre
20.Sanjay Sawta Abdagire
21. Sadashiv Shripati Nale
22.Sarubai Haribhau Gaavde
Since deceased through LRs
23(a) Appa Mari Gawde
23(b) Sambhaji H. Gawde
23.Popat Ramchandra Pondkule
(since deceased through legal heirs)
23(a) Ashok P. Pondkule
23(b) Smt. Kusum P. Pondkule
23(c) Smt. Alka M. Gadve
23(d) Smt. Mangal M. Shingade
23(e) Smt. Lata D. Mergal
24.Competent Authority Land Acquisition & Deputy
Collector (Land Acquisition) No. 16, Satara, at
Satara
26.Dadoso Govind Bhujbal
27. Sopan Dashrath Ghanvat
28.The State of Maharashtra …Respondents
Mr. Kavyal P. Shah, Advocate for the Petitioners.
Mr. A.I. Patel, Addl.G.P., a/w R.M. Shinde, AGP, for Respondent-State.
Mr. B.A. Lawate, i/b Gurubala Birajdar, Advocates for Respondent
Nos.2 to 5, 7 & 8.
Mr. Amol Laxman Dhumal, Advocate for Respondent No.9.
Mr. Nigam C. Kumar, a/w Shilpa More, i/b N.K. Juris, Advocates for
JUDGMENT
1. Rule. Rule made returnable forthwith. With the consent of the parties, the Writ Petition is taken up for final disposal. Factual Background and Context:
2. This Petition essentially seeks a direction to the Competent Authority Land Acquisition and Deputy Collector (Land Acquisition) No.16, Satara, Respondent No. 25 (“Competent Authority”) to make a reference of a purported dispute over ancestral property, between the Petitioners and certain Respondents whose land has been acquired for purposes of a national highway, to the relevant Civil Court under Section 3H(4) of the National Highways Act, 1956 (“NH Act”).
3. The Petitioners claim to have a right to one-third of the compensation payable for land acquired by the Competent Authority in connection with National Highway 965 connecting Alandi and Pandharpur. The acquired land falls in Gat No.261 situated at village Vidni, Taluka Phaltan, District Satara. The land in question was acquired from some relatives of the Petitioners, and also from third parties who had acquired interests in such land from such relatives.
4. Way back in 1977, Gat No.261 had been divided into sub-parts, in fact, in disposal of an application made by one Mr. Ramchandra Govind Pondkule, the father of the Petitioners. The division of Gat No.261 was between Mr. Ramchandra Govind Pondkule and his brother, Mr. Kisan Govind Pondkule and Mr. Shivram Govind Pondkule. Thereby, Gat No.261/1/A, Gat No.261/1/D and Gat No.261/4 came to be vested in Shivram Govind Pondkule, the father of Respondents No.2 to 4. Further partitions and divisions of the land so sub-divided have taken place among the branches of the families under the original three siblings, including a partition in 2012, among Respondents No.2 to 4.
5. The acquisition by the Competent Authority was of:i) 3624 square meters of land from Gat No.261/1, which includes:- A) 565 square meters of land of Respondent No.1 and B) 147 square meters of land from Respondent No.2 to 4; C) 782 square meters of land from Respondent No.4; D) 162 square meters of land from one Sopan Dashrath Ghanvat; E) 191 square meters of land from Respondent No.6; F) 206 square meters of land from Respondent NO. 26; G) 232 square meters of land from Respondent No.3; and H) 685 square meters from Respondent No.2; ii) 161 square meters of land from Gat No.261/2 of Respondent No.9; and iii)854 square meters from Gat No.261/3 of common area from Respondents No.10 to 21.
6. When the Competent Authority notified the intent to acquire land, the Petitioners objected and made claims on July 2, 2018 claiming to have ancestral rights to one-third of the land forming part of Gat No. 261. The Competent Authority disposed of the application stating that objections may be raised in accordance with law, depending on the land eventually acquired, and at the time of disbursement of compensation. Thereafter, the Petitioners filed applications on September 6, 2018 and October 10, 2018 with the Competent Authority demanding that one-third of the total compensation must be paid to them.
7. The Petitioners once again filed an application on February 13, 2020 before the Competent Authority claiming that one-third of the compensation amount must be paid to the Petitioners on the premise that it is ancestral land that has been acquired. They claimed that in terms of Section 3H(4) of the NH Act, disputes over apportionment of compensation must be referred to the principal Civil Court having jurisdiction over where the land is situated. The Petitioners also assert that there is a couple of Civil Suits filed by Respondents No. 2 to 4, namely, Regular Civil Suit No. 254 of 2015 and Regular Civil Suit No.83 of 2019 (“Respondents’ Suits”), which would indicate that the parties evidently have disputes and differences over the land acquired by the Competent Authority, which would make it a straightforward requirement that dispute over apportionment of compensation for disputed land, ought to be referred to the Civil Judge, Junior Division, Phaltan, the principal civil court having jurisdiction over the land in question.
8. The Competent Authority has disagreed, eventually passing two orders, namely, an order dated August 10, 2020 and another order dated December 6, 2021 (collectively, “Impugned Orders”), dismissing the claims of the Petitioners, and directing the release of specific amounts of compensation to specific persons, in terms of these orders.
9. The Petitioners submit that the Impugned Orders are bad in law because the Competent Authority has himself sat in judgment over apportionment of compensation despite existence of a property dispute over the land acquired, when it was incumbent on him, under Section 3H(4) of the NH Act, to refer such dispute over apportionment to the relevant Civil Court. Consequently, the Petitioners have sought intervention of this Court in exercise of its extraordinary and equitable writ jurisdiction to quash and set aside the Impugned Orders, and to direct the Competent Authority to refer the issue to the Civil Court. Respondents’ Affidavits in Reply:
10. A common affidavit in reply dated February 23, 2022, has been filed on behalf of Respondent Nos.[2] to 5, and Respondent Nos.[7] and 8, seeking to explain the ownership of the land. The Competent Authority, who has passed the Impugned Orders, has also filed an affidavit dated December 30, 2022, seeking to explain the context in which the Impugned Orders were passed. Mr. Dineshkumar Jetharamji Purohit, Respondent No.16, has filed an affidavit dated July 9, 2024 stating that he was a third-party acquirer of the land for value, and that the issue of payment of compensation to him has been rightly decided since there can be no dispute over apportionment.
11. These affidavits have brought on record the mutation entry NO. 7516 dated March 25, 1977, based on an application dated March 15, 1977 made by Mr. Ramchandra Govind Pondkule, the father of the Petitioners. Gat No.261 had been divided into sub-parts in 1977, by way of a partition, whereby Gat No.261/1/A, Gat No.261/1/D and Gat No.261/4 came to be allocated to Shivram Govind Pondkule. Thereafter, a change of user of the land for nonagricultural purposes was obtained, to build a dwelling house, factory and industrial units. So also, Gat No.261/1/A/2, Gat No.261/1/D and Gat No.261/4 came to be partitioned on the basis of an application made by Mr. Pandurang Shivram Pondkule on October 5, 2012. Before and after such family partition, third party rights had been created in favour of Respondents No.26 and 27. All through these (nearly) four and half decades (1977 to 2021), there has been no claim or litigation over ownership of land, and the Petitioners have not asserted their claim of having ancestral interest in the land that has changed hands from time to time after the initial partition in 1977.
12. The Respondents have pleaded that Regular Civil Suit No. 254 of 2015 was indeed filed against the Petitioners, but such suit had nothing to do with any disputes over title or ownership or other interests in the land acquired for the national highway project. That suit sought an injunction against the Petitioners placing impediments in laying and using an irrigation pipeline for use of well water from Gat No.261/1/A/2 and conveying it to Gat No.261/1/D. So also, Regular Civil Suit No.83 of 2019 sought an injunction against the Petitioners due to their attempt to disrupt measurement of the land owned by the Respondents. As such, the Respondents submit, the Respondents’ Suits had nothing to do with disputes over ancestral land for such litigation to lend credence to existence of a basis to dispute apportionment of compensation. In other words, the Respondents’ Suits were neither partition suits nor suits seeking declaration of title and ownership to any portion of the land acquired for the national highway. They only sought injunction against unlawful interference with enjoyment of the land that had indisputably been sub-divided four and half decades before this Writ Petition was filed and had undergone further sub-divisions.
13. The affidavits in reply also assert that even assuming a claim over ancestral land is now being made, it is hopelessly barred by limitation, and that the Competent Authority ought not make a reference of a non-existent dispute on the name of apportionment being disputed, when evidently there can be no basis of claiming any portion of the compensation. The acquisition is of lands belonging to Respondents No.1, 2, 3, 4, 6, 26, 27 and 28, which are adjacent to the Alandi-Pandharpur Road, and these Respondents are the parties legitimately entitled to compensation.
14. The Competent Authority has stated that dwelling houses constructed in Gat No.261/1/A in 1977, 2003 and 2005 came to be acquired, and were consequently eligible for receipt of compensation. The affidavit further states the names of Respondent No.9 and Respondent Nos.10 to 21 have also been entered in the record of rights relating to Gat No.261/2 and Gat No.261/3 by various mutation entries over a considerable period of time, none of which have been subject matter of challenge by the Petitioners, in any court. Consequently, the Competent Authority has asserted that the Impugned Orders are accurate and not worthy of any intervention by this Court. As regards the Impugned Order dated August 10, 2020, it has been stated that specific compensation amounts have already been paid to Respondents NO. 26, 27 and 28, and some remaining compensation, in the sum of Rs.2,48,49,203/- that is yet to be disbursed, stands deposited with the bank account of the Competent Authority.
15. Mr. Dineshkumar Jetharamji Purohit, Respondent No.16, has stated that the land situated in Gat No.261/3 with an area of 0.51 square meters that has been acquired by the Competent Authority, had been purchased by him from one Mrs. Ranjana Dnyaneshwar Abdagire by way of agreements executed on November 29 2001 and April 26, 2005. Property tax has been paid on such land since then and the revenue records accurately show such land as being owned by Respondent No.16. Throughout this period, the Petitioners have never questioned the title of Respondent No.16 and therefore, despite having no locus whatsoever in respect of such land admeasuring 0.51 square meters in Gat No.261/3, the Petitioners are causing a hindrance by naming Respondent No.16 in the Petition. Analysis and Findings:
16. We have carefully gone through the pleadings and the material on record with a view to examine whether the the Competent Authority has erred by not making a reference to the Civil Court and to see whether the Competent Authority has usurped such jurisdiction and adjudicated disputes over apportionment of compensation.
17. The argument of the Petitioners (that the jurisdiction to adjudicate upon apportionment of compensation, and that too when the Respondents’ Suits are already pending, would lie with the Civil Court), at first blush, would appear fairly logical and straightforward. However, upon a review of the material on record and hearing the parties, what becomes apparent is that the division of the land effected in 1977 had never been challenged and there is indeed no dispute over the title to the land acquired. Besides, the Respondents’ Suits do not relate to seeking declaration of title, but seek injunctions against the Petitioners from interfering with irrigation of the lands, and measurement and development of the land. Put differently, it appears that the occasion of land acquisition by the Competent Authority is the trigger to assert the existence of a dispute that has not been raised so far.
18. For felicity, Section 3(H) of the NH Act, are extracted below:- 3-H. Deposit and payment of amount.—(1) The amount determined under section 3-G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. (2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto. (3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. (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 limits of whose jurisdiction the land is situated. (5) Where the amount determined under section 3-G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent. per annum on such excess amount from the date of taking possession under section 3-D till the date of the actual deposit thereof. (6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit. [Emphasis Supplied]
19. From a plain reading of the foregoing it would be clear that under Section 3H(2), the Competent Authority is required to pay the compensation to the persons who are entitled to it. Under Section 3H(4), it is the duty of the Competent Authority to determine and opine on who are the persons entitled to the compensation. If there are disputes over apportionment of the amount among persons to whom the compensation is payable, or there are any disputes over who the compensation is payable to, such a dispute would form subject matter of reference to the Civil Court.
20. Under Section 3H(3), it is the Competent Authority who has the jurisdiction to determine the persons who are entitled to receive the amount payable to each of them. Such determination has to be empirical and objective and it is the Competent Authority’s jurisdiction to determine, based on empirical evidence to objectively determine who the compensation is payable to.
21. Having gone through the plaints in the Respondents’ Suits, which are referred to by the Petitioners as being evidence of disputes over title to the land in question, we find that the pleadings in the Petition in this regard are wholly untenable. The Petition loosely uses the phrase “with respect to the subject property” while describing the Respondents’ Suit in its pleadings, giving an impression that there are disputes over entitlement to the land acquired for the national highway. However, on a careful reading of the plaints, it is evident that the Competent Authority and the Respondents are right in their submission that the Respondents’ Suits had nothing to do with disputes over title to ancestral property. The Respondents have alleged that the Petitioners are hindering the irrigation of their land using well water, and that the Petitioners are causing a hindrance in the measurement of the Respondents’ land. They sought injunction against such conduct.
22. Equally, the Petitioners have not controverted the submission that the division of Gat No.261 in 1977 and the mutation pursuant to such division among the three siblings, namely, Mr. Ramchandra Govind Pondkule, Mr. Kisan Govind Pondkule and Mr. Shivram Govind Pondkule, sons of Mr. Govind Haribhau Pondkule and Mrs. Suguna Pondkule never came to be challenged. The Petitioners belong to the branch of the family under Mr. Ramchandra Govind Pondkule. The offspring of Mr. Kisan Govind Pondkule and Mr. Shivram Govind Pondkule are the Respondents arraigned in the Writ Petition. It is evident that a partition that had been effected way back in 1977 had resulted in the three branches of the families becoming entitled to different parcels of land, and such division was never subject matter of litigation ever since. Even according to the Petitioners, it is only the two Respondents’ Suits that constitute the litigation among the parties. Such litigation does not entail any issue of ownership of title to ancestral land. They relate to determination of whether the Petitioners are causing any hindrance to the Respondents’ irrigation from well water, and to measurement of land for their own developmental objectives. Therefore, when the Competent Authority acquires land from the undisputed owners for a national highway project, under Section 3H(3) of the NH Act, the Competent Authority was indeed clothed with jurisdiction to determine the entitlement to compensation of the respective owners.
23. It is also evident that various third party rights have been created over the land belonging to the two branches of the family, other than the Petitioners’ branch. This is what has led to multiple Respondents being made parties to the Petition. If the Petitioners have ex facie no demonstrable basis to claim any title or interest such as tenancy or even occupation of the land acquired for the national highway, it would necessarily follow that they would have no basis to argue that a dispute is in existence over apportionment of the compensation or who the compensation is payable to. Should the Petitioners verily believe that they have an entitlement on the premise of ancestral interests, such claims may be asserted by the Petitioners directly through their own civil suit, and not by making a claim of apportionment before the Competent Authority.
24. We are of the opinion that for a reference to be made under Section 3H(4) of the NH Act, the jurisdictional fact necessary is the existence, prima facie, of a dispute over the entitlement to compensation. That would entail some basis to show that compensation payable under the NH Act ought to flow to some person who is not being paid, or that the component of compensation that ought to be paid to a specific person is not being paid. Such disputes over apportionment or entitlement are to be ref-erred to the Civil Court under Section 3H(4). When the sub-division effected way back in 1977 breaking up Gat No. 261 among the three siblings was never subjected to any legal challenge, and the sub-divisions, disposals and third party interests created thereafter over four and half decades were never subject matter of any challenge, it would follow that the Competent Authority would have no business in holding up the payment of compensation. The reference jurisdiction under Section 3H(4) cannot become a means of ever-greening stale and fanciful claims to property, and dead wood being revived through the filing of objections with the Competent Authority.
25. Had there been any dispute over whether one or more of the three branches has entitlement over the land held by any of the other branches, there would have been some litigation or at very least, a threat of litigation, on the subject, in the past four and half decades. There being nothing of such nature brought to bear by the Petitioners, it will follow that no case has been made out for issuance of a writ to the Competent Authority to make a reference to the Civil Court.
26. Ordinarily, making a reference of a dispute over apportionment of compensation or entitlement to compensation, is an obvious and straightforward issue. Once the Competent Authority is satisfied that the jurisdictional facts for making a reference are, prima facie, in existence, a reference would follow. In the facts of this case, for the reasons set out herein, we have arrived at a view that the Petitioners’ assertion of a referable dispute being in existence, is untenable. Without any basis to claim a right, title or interest to the land acquired for the national highway, there would be no basis for the Competent Authority to make a reference to the Civil Court. When land was sought to be acquired for a national highway, objections were raised, for the first time, about entitlement to the compensation amount, over land that is evidently not held in the name of the Petitioners. A bald assertion of such land being ancestral land, despite the undisputed segregation and mutation of the land since 1977, is no reason to interfere with the Impugned Orders. Conclusion:
27. Consequently, in the facts and circumstances of the case, we are not satisfied that the Petitioners have made out a case for issuance of a writ or direction to the Competent Authority to make a reference to the jurisdictional Civil Court in respect of apportionment or entitlement to the compensation payable under the NH Act.
28. Needless to say, our examination of the record and assessment of the merits is restricted to whether a reference for purposes of the payment of compensation under the NH Act ought to have been made, going by the undisputed content of the material on record. We express no opinion about whether any other cause of action exists or may be available to any the parties. Any such cause of action is for the parties to pursue in accordance with law, as advised. No case has been made out for exercise of our writ jurisdiction to interfere with the Impugned Orders passed by the Competent Authority.
29. Therefore, Rule is discharged, and the Writ Petition is disposed of accordingly. No costs. [SOMASEKHAR SUNDARESAN, J.] [G. S. KULKARNI, J.]