SHAMBHURAJE RAJARAM GATEversusTHE UNION OF INDIA THR. SECRETARY MINISTRY OF ROAD TRANSPORT AND HIGHWAYS AND ORS

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIRCUIT BENCH AT KOLHAPUR
                           CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 8410 OF 2021

Shambhuraje Rajaram Gate.                             ...Petitioner.
       Versus
The Union of India and Others.                        ...Respondents.
                             ——————
Mr. Prashant Bhavake, Utkarsh Desai, Shiva Navanne, Mrs. Durva Jadhav for the
Petitioner.
Mr. Siddheshwar B. Kalel, AGP for the Respondent-State.
Mr. R. S. Alange (through V.C.) and V. S. Kupwade for the Respondent No. 1.
Mr. Ashok B. Tajane (through V.C.) and . Balaji Shinde for the Respondent No. 5.
                                  ——————
                                    Coram :      Sharmila U. Deshmukh &
                                                 Neeraj P. Dhote, JJ.
                                    Date       : August 28, 2026.
P. C. :

1.         Rule.    Rule made returnable forthwith and taken up for final

disposal with consent.

2.         By the present petition, the Petitioner seeks a direction to the

Respondents to release the amount of compensation to the Petitioner,

as awarded vide land acquisition award dated 30th August 2018 with

admissible interest for acquiring the Petitioner’s land admeasuring 27-

Ares out of land bearing Gat No. 52/2 situated at Village Shingoli, taluka

Mohol, district Solapur.

3.         As during the pendency of petition, it was pointed out that

reference has been made under Section 3H(4) of the National Highways




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Act, 1956 [for short “the Highways Act”] and the compensation was

deposited in the District Court, the petition came to be amended

seeking quashing of impugned reference order dated 7 th December

2020.

4.         Briefly stated, facts of the case are that in the year 1994, the

Petitioner, by registered sale-deed, purchased land admeasuring 1-

Hectare 49-Ares being western portion of Gat No.52 and in the year

1996 purchased land admeasuring 68-Ares out of Gat No.52 (part) being

eastern portion of Gat No. 52(part). The Respondent No. 5 in the year

2007, purchased 81-Ares of land being north-east portion of Gat No.

52(part). By award dated 30th August 2018, the land admeasuring 2,700

square meters out of Gat No.52 came to be acquired by the National

Highways Authority of India [for short “NHAI”]. In December 2018, the

Sub Divisional Officer [for short “SDO”] which was Special Land

Acquisition Officer issued notice to the Petitioner and the Respondent

No. 5 calling upon them to submit their proof of claim along with

relevant documents.         On 5th February 2019, the present Petitioner

submitted necessary documents for claiming compensation for

acquisition of his land by NHAI. By communication dated 30 th March

2019, the SDO, called upon the Respondent No.5 to submit his

complaint or objection to grant of compensation to the Petitioner as

Respondent No. 5 had declined to give his no objection. On 6 th June


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2019, the SDO again wrote to the Respondent No.5 that no objection

has not been given by the Respondent No.5 for disbursement of

compensation to the Petitioner and called upon him to attend the office

of SDO on 15th June 2019 at 5.00 p.m. failing which it would be

construed that he has no objection and disbursement would take place.

5.         The case of the Petitioner is that despite no dispute having been

raised by Respondent No.5 and no claim for the compensation made by

Respondent No.5, the SDO exercised powers under Section 3H(4) of the

Highways Act and referred the dispute to the civil Court.

6.         Mr. Bhavake, learned Counsel appearing for the Petitioner would

submit that there is no dispute insofar as the ownership of the land is

concerned. He submits that though the notice was issued by the Land

Acquisition Officer in December 2018 to the Petitioner as well as the

Respondent         No.5   directing   them      to   submit   their   claims   for

compensation for the acquired land, no claim was submitted by the

Respondent No.5.          He submits that SDO called for no objection of

Respondent No.5 which is not a requirement, particularly considering

that there was no claim submitted by Respondent No.5 and no dispute

as regards the entitlement of the Petitioner to the compensation.

Drawing attention of this Court to Section 3H of the Highways Act, he

would submit that it is within the domain of the competent authority to

determine the persons who in his opinion are entitled to receive the


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amount payable to each of them where several persons claim to be

interested in the amount deposited and it is only in event of dispute as

to the apportionment of amount or any part thereof or to any person to

whom the same or any part thereof is payable then the dispute is

required to be referred.        He submits that the provisions do not

contemplate that the dispute is to be referred by reason of absence of

no objection by a person who has not claimed the compensation nor

raised any dispute.

7.         Mr. Tajane, learned Counsel appearing for the Respondent No.5

would draw the attention of this Court to the order dated 3 rd December

2021 by which this Court noted that the Petitioner was served with the

notice of the measurement of land and had adjourned the matter with

direction that if the exercise of measurement of land is completed, the

Respondent No. 4 may submit the report to the SDO for further action.

He submits that no action has been taken despite the order of this Court

in the year 2021. He would further point out page No. 149 of the

petition which is the report dated 5 th August 2020 by the Talathi

reporting that the acquisition appears to be from the Petitioner’s land

bearing Gat No. 52/2. He submits that such an exercise is impermissible

and what was required was the measurement of land. He would further

point out that the reply affidavit of the Respondent Government

authority makes a reference to the notice of 30th March 2019 calling


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upon the Respondent No. 5 to give no objection certificate. He submits

that written dispute is not a condition precedent for the purpose of

reference. He submits that it is necessary that the measurement be

carried out before the compensation can be disbursed to the Petitioner

so that the identify of land acquired can be ascertained.

8.         Learned AGP Mr. Kalel would justify the action of SDO and would

submit that the acquisition was from Gat No.52 without any sub division

and        therefore     without   measurement       being   carried      out,   the

compensation could not have been disbursed. He would also seek to

interpret the provisions of Sub-Sections (3) and (4) of Section 3H of the

Highways Act to contend that even where there is a dispute as to any

person to whom the compensation is payable, a reference is required to

be made. He would submit that as no objection has not been given by

the Respondent No. 5, the acquiring authority while seeking sub division

of land would be put into difficulty and for that purpose, the reference

has been made.

9.         We have considered the submissions and perused the record.

10.        Before proceedings to the facts, which are mostly undisputed, it

would be appropriate to refer to Section 3H of the Highways Act, which

reads as under :

              “3H. Deposit and payment of amount.-

              (1)      The amount determined under section 3-G shall be



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              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.”



11.        A plain reading of the above statutory provisions would indicate

that Sub-Section (3) of Section 3H of the Highways act deals with the

situation where several persons claim to be interested in the amount



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deposited under Sub-Section (1), i.e., the deposit by the Central

Government with the competent authority before taking possession of

the land. Sub-Section (3) of Section 3H of the Highways Act also makes

it clear that it is open for the competent authority to determine the

person who in its opinion is/are entitled to receive the compensation

payable to each of them.

12.        The provision as regards the reference of dispute to the decision

of the Civil Court of the original jurisdiction is to be found in Sub-Section

(4) of Section 3H of the Highways Act which provides that where any

dispute arises as to the apportionment of amount or part thereof or

even a dispute as to any person to whom compensation is payable then,

a reference to the Principal Civil Court is mandatory. A conjoint reading

of Sub-Section (3) and Sub-Section (4) of Section 3H of the Highways Act

would make it clear that it is open for the competent authority to

determine the person, who in its opinion is entitled to receive the

amount where there are several claims raised before the competent

authority and after such determination, if there is any dispute between

them a reference is mandated.

13.        In the present case, the contention of Mr. Tajane, learned Counsel

appearing for Respondent No.5 is that written dispute is not a condition

precedent for reference. In view of the plain reading of Section 3H of

the Highways Act, it is evident that arising of dispute is a condition


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precedent, which should be borne out from the records, whether

written or oral. In the affidavit-in-reply of the Respondent No. 5 filed on

10th October 2024 there is not evben a single pleading that acqusition

under the Highways Act was from the land of the Respondent No. 5 or

that the Respondent No. 5 is entitled to the compensation thereto.

Despite repeated queries by this Court, neither Mr. Tajane nor Mr. Kalel,

learned AGP is able to point out a single document filed by the

Respondent No. 5 with the SDO either raising a claim to the

compensation assessed for the acquisition of Gat No. 52 or raising a

dispute as regards the grant of compensation to the Petitioner. The

Respondent No. 5 has been passive and his inaction is construed as

dispute by SDO. Without satisfaction of the condition precedent, as set

out in Section 3H(3) of the Highways Act, reference by the SDO to the

Civil Court was clearly unwarranted.

14.        By communication of December 2018, the Petitioner as well as

the Respondent No.5 were called upon by the SDO to submit their

claims, pursuant to which, on 5th February 2019, the Petitioner filed his

claim for compensation claiming that the acquisition of 2,700 sq. meters

of land out of his land, and also submitted necessary documents.

Though notice was also issued to Respondent No.5, no claim was raised

by the Respondent No.5, which fact demonstrates that acquisition, if

any, was out of the land forming part of Petitioner’s ownership land.


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Despite there being no requirement to seek no objection of the person

whose land is not acquired, though may be adjacent or undivided land

owner, the SDO repeatedly called upon the Respondent No. 5 to give his

no objection. There is no dispute about receipt of compensation by the

Respondent No. 5 and there is not a single document placed on record

in order to demonstrate that Respondent No.5 either attended the

office of SDO or claimed compensation. Inaction to give no objection by

the Respondent No.5 cannot be construed as dispute within the

meaning of Section 3H(4) of the Highways Act for the competent

authority to refer the same for the decision of the civil Court. The

provision is very clear and mandates reference only in case of dispute.

In the absence of Respondent No. 5 raising any claim, there was no

dispute and hence there is no requirement of referring the same to the

Civil Court. It cannot be accepted that without measurement, it cannot

be determined as to whose land has been acquired. The Petitioner and

Respondent No.5 were in possession of their respective lands and

would be aware if the acquisition was out of their land.

15.        The condition precedent for reference not having been satisfied,

the reference order dated 7th December 2020 passed by the

Respondent No. 3 is clearly unsustainable and is hereby quashed and set

aside. As without meeting the statutory requirements, a reference

order has been passed by the SDO, the SDO/Dy. Collector (Special Land


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Acquisition Officer No.7) to take appropriate steps to ensure that the

compensation payable to the Petitioner, as awarded under the award

dated 30th August 2018, is paid to the Petitioner along with accrued

interest as permissible in law, as expeditiously as possible and in any

event within a period of six weeks from today. Rule is made absolute in

above terms.



 [Neeraj P. Dhote, J.]                    [Sharmila U. Deshmukh, J.]




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