13 wp 8410-21.doc 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 Patil-SR 1 of 10 13 wp 8410-21.doc 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 7th 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 30th 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 6th June Patil-SR 2 of 10 13 wp 8410-21.doc 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 Patil-SR 3 of 10 13 wp 8410-21.doc 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 3rd 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 5th 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 Patil-SR 4 of 10 13 wp 8410-21.doc 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 Patil-SR 5 of 10 13 wp 8410-21.doc 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 Patil-SR 6 of 10 13 wp 8410-21.doc 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 Patil-SR 7 of 10 13 wp 8410-21.doc 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. Patil-SR 8 of 10 13 wp 8410-21.doc 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 Patil-SR 9 of 10 13 wp 8410-21.doc 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.] Patil-SR 10 of 10