Nandkumar Tukaram Dhole v. The State Of Maharashtra, And Others

2025:BHC-NAG:7045 1 31-WP-2295-2024.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 2295 OF 2024 NANDKUMAR TUKARAM DHOLE Vrs.

THE STATE OF MAHARASHTRA AND OTHERS -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order --------------------------------------------------------------------------------------------------------- Shri C. R. Najbile, Advocate for petitioner.

Ms. T. H. Khan, AGP for respondent Nos.1 to 3. Shri M.A.Kadu, Advocate for respondent No.4.

CORAM: SACHIN S. DESHMUKH, J.

DATE : 18/07/2025.

1.

The counsel for petitioner has placed on record the Judgment rendered in Writ Petition No.819/2024, more particularly Para Nos.1, 2, 3, 4 and 5 therein, which are reproduced as under :- 1.

This petition takes exception to the order passed by the Reference Court dated 17.4.2015 in Land Acquisition Case No.217/2011, whereby the reference came to be dismissed for want of any evidence on the part of the applicants/claimants.

2.

At the outset, learned counsel for the respondent has raised objections to the maintainability of the petition on the ground that since the impugned order is not for dismissal of the reference for want of prosecution but as the same has been passed on merit and the decree has been drawn, the appeal would lie against the same. It is his submission that since efficacious alternate remedy is available, the petition would not be maintainable. To support his submission,

2 31-WP-2295-2024.odt he placed reliance on the judgment of the Division Bench of this Court in the case of Diwakar Prabhakar Chopade Vs. Sub-Divisional Officer, (Land Acquisition Officer), Aurangabad and others reported in 2019(6) Mh.L.J. 591. Learned counsel for the petitioner responded to the said submissions by pointing out that though it is not stated in so many words that the reference has been dismissed for want of prosecution, practically the order impugned is passed for non-leading of evidence by the claimant and hence, this order cannot be treated as an order on merit of the reference. It is his submission that it was not open for the reference Court to dismiss the reference only after considering the evidence which was there before the Special Land Acquisition Officer. Learned counsel for the respondent has also relied upon the order of this Coordinate Bench of this Court in Writ Petition No.2087/2023. It is his submission that by placing reliance on the judgment of this Co-ordinate Bench of this Court in Writ Petition No.2377/2024 the petition is very well maintainable.

3.

There cannot be any dispute made with regard to the proposition laid down by the Division Bench of this Court in the case of Diwakar Prabhakar Chopde (supra). In the said judgment it is held that the order otherwise than order on merit would not be subjected to the challenge in an appeal. In order to consider as to whether the appeal would lie against the impugned order or not, it would be relevant to take note of the order impugned itself. Perusal of the impugned order clearly shows that the decision has not been made on merit. Even though in the operative part it is not specifically stated by the Reference Court that the order of dismissal has been passed for the reason of claimant not leading

3 31-WP-2295-2024.odt evidence, practically the order indicates so. Thus, it cannot be said that this order has been passed on merit. 4.

Once it is held that the order is otherwise than on merit, an appeal would not lie against such order. Consequently, there is no impediment in holding that the present petition is maintainable against the impugned order.

"5.

During the course of hearing learned counsel for the petitioner, on instructions, has made a statement that the petitioner would not claim any interest on the enhanced amount, if granted, from the date of framing of the issues by the Reference Court till the date of restoration of the reference. This undertaking takes care of the interest of the respondent. In any case, it would be unjust for petitioner to be paid any interest on the amount enhanced if any by the Reference Court for the reason that he cannot be permitted to get unmeritted enrichment. Needless to say that the statutory interest at the rate of 15% is paid from the public exchequer. Hence, when it is found that the petitioner is at fault, he would not be entitled to receive any interest for the period from the date of framing of the issues till the restoration of the reference."

2.

The learned counsel for the petitioner accepts the said recourse to be followed. The learned counsel for respondent No.4 also fairly concedes the position. In the light of the same, it is made clear that the petitioner would not be entitled to receive any interest for the period from the date of framing of the issue, till the restoration of the Reference. In view of the same, petition stands allowed.

4 31-WP-2295-2024.odt 3.

The impugned order dated 17/03/2020 passed by the Civil Judge, Senior Division, Darwha in L.A.C No.903/2004 is quashed and set aside.

4.

The L.A.C. No.903/2004 (Old LAC No.77/1997) is restored to its original file.

5.

The parties are directed to appear before the Reference Court on 04/08/2025.

6.

The Reference Court is directed to decide the reference expeditiously, in any case, within a period of six months from today.

7.

It is further made clear that in case, the petitioner succeeds in getting enhanced amount of compensation, he would not be entitled to get any interest on such amount from the date of framing of the issues till 04/08/2025.

[SACHIN S. DESHMUKH, J.] Choulwar Signed by: V.M. Choulwar (VMC) Designation: PS To Honourable Judge Date: 22/07/2025 18:11:20