1 WP NO.9013.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9013 OF 2010 Vijay Bhagwan Mohite & Anr. .. Petitioners. Versus Bhagwan Gundu Mohite & Ors. .. Respondents. Mr.Amit Borkar for the petitioners. Mr.M.S.Topkar for respondent nos.1 and 3. Mr.R.M.Patne AGP for respondent no.5. CORAM : RANJIT MORE, J. DATED : APRIL 19, 2011 PC: 1. Heard Mr.Borkar, learned counsel for the petitioner. Mr.Topkar, learned counsel for respondent nos.1 and 3 and Mr.Patwardhan, learned counsel for respondent no.5. 2. At the outset Mr.Borkar seeks leave to delete name of respondent no.4. Leave as prayed for, is granted, at his own risk. Necessary amendment shall be carried out within a period of one week from today. 3. By this petition under Article 226 and 227 of the Constitution of India the petitioner challenges the order dated 9.11.2010 passed by respondent no.5 – Sub-Division Officer, whereby the petitioners’ application objecting payment of compensation to respondent no.3 for acquisition of the land admeasuring about 40 acres from Gat No.920 came to be rejected. 4. Respondent No.6 under the provisions of section 32 of the S 2 WP NO.9013.10 M.I.D.C. Act acquired the land admeasuring about 5 hector and 59 Are out of gat no.920 situated at Mouje Tamgaon, Taluka Karveer, District Kolhapur. Out the said land of 5 hector and 59 Are the land admeasuring 1 hector and 81 Are stands in the name of respondent no.1, land measuring 87 acres stand in the name of petitioner no.2 and land admeasuring 40 Are stand in the name of respondent no.3. Respondent No.6 has also awarded an amount of Rs.1,70,49,000/- towards the compensation. 5. Respondent No.1 is the father of petitioner no.1, respondent no.2 and respondent no.3. Petitioner No.2 is the wife of respondent no.1. The present petitioners filed an application on 1st September, 2010 before respondent no.5 objecting payment of compensation to respondent no.3 in respect of 40 gunthas of land out of total land from gat no.920. The petitioners’ claim that the said property is ancestral property of the joint family consisting of the petitioners and respondent nos.1 to 3. This application was rejected by the Collector by the speaking order dated 9.11.2010 and, therefore, the petitioners are before this court. 6. Mr.Borkar submitted that entire gat no.920 belongs to the joint family and the petitioners have got undivided share in it. He stated that petitioner no.2 has also filed Special Civil Suit No.59 of 2007 for general partition and same is pending in the court of Civil Judge, Senior Division at Kolhapur. He invited my attention to the 3 WP NO.9013.10 provisions of section 35 of Maharashtra Industrial Development Corporation Act, 1961 and argued that the Collector could not have disposed of the petitioners’ application and the matter has to be referred for the decision of the court. 7. Mr.Patwardhan per contra submitted that property admeasuring 40 acres which is shown in the name of respondent no.3 is purchased by respondent no.3 subsequent to her marriage and, therefore, joint family of the petitioners and respondent nos.1 and 2 have no concern with the said property. He relied upon decision of the Apex Court in Sharda Devi Vs. State of Bihar and Anr. (2003) 3 SCC 128 and submitted that the Collector has exercised his discretion. He, lastly, submitted that in pursuance of the impugned order the amount of compensation towards 40 gunthas of the land which is subject matter of this petition is already withdrawn and, therefore, no interference is called for. Mr.Topkar adopted the argument of Mr.Patwardhan. 8. Having heard learned counsel for the respective parties I find no merit in the petition. Section 35 of MIDC Act is para-materia with the provisions of section 30 of the Land Acquisition Act. The Apex Court in decision of Shardadevi (supra) had an occasion to distinguish the scope of provisions of section 18 and section 30 of the Land Acquisition Act. The Apex Court considered wordings of section 18 and section 30 of the Act and held that the Collector is 4 WP NO.9013.10 duty bound to make reference under section 18 provided he is satisfied that the requirement under the said section are complied with. So far as section 30 of the Land Acquisition Act is concerned, the Apex Court held that the Collector has discretion to refer the reference to the court and the discretion depends upon various factors including nature of the dispute raised, the person who is raising dispute, the delay in inviting attention of the court etc. etc. From the decision of the Apex Court it is clear that the Collector is not bound to refer the dispute under section 30 of the Land Acquisition Act to the Court in all cases mechanically. As stated above the provisions of section 35 of the MIDC Act are para-materia of section 30 of the Land Acquisition Act and, therefore, there is no difficulty in applying the ratio of the said decision of the Apex Court to the provisions of section 35 of the MIDC Act. If the facts of the present case are considered on the principle laid down by Sharda Devi’s case then I don’t find any fault in the impugned order. 9. Be that as it may after the impugned order, the amount of compensation is already withdrawn by the respondents. The petitioners’ civil suit for partition is pending before the Court of Senior Division, the area of 40 acres which is shown in the name of respondent no.3 is also the subject matter of the suit filed by petitioner no.2. After withdrawal of the amount of compensation by respondent no.3, Petitioner no.2 has amended the suit and this 5 WP NO.9013.10 amount is included as subject matter of the suit. If the petitioners in this suit succeeds in proving that the said land of 40 gunthas belongs to the joint family then obviously the share will be granted to them in that amount. The petitioners’ right in my view is protected in above circumstances. In that view of the matter the petition is disposed of by the following order: (i) The writ petition is dismissed. (ii) The amount of compensation for land admeasuring 40 gunthas standing in the name of respondent no.3 which has already been withdrawn shall be subject to final outcome of the Special Civil Suit No.59 of 2007. (iii) The observations made hereinabove are for the purpose of disposal of this writ petition and any other application regarding withdrawal of the compensation amount shall be decided on its own merits and uninfluenced by this order. At this stage Mr.Borkar seeks continuation of ad-interim stay granted earlier. The request is, opposed by Mr.Patwardhan and Mr.Topkar, however, in the interest of justice and in order to enable the petitioners to approach the higher court, the ad-interim order granted earlier is continued for a period of two weeks from today. (RANJIT MORE, J.)