High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3220 OF 2024Shaikh Kadar Shaikh JamalVERSUSShaikh Wajir Shaikh Jamal And OthersMr. Ameya Sabnis i/b Devdatta Palodkar, Advocate for PetitionerMr. P. S. Shendurnikar, Advocate for Respondent No. 4CORAM: R. M. JOSHI, J.DATE: 18th February, 2025PER COURT :-1.Petitioner takes exception to the orders dated 18.10.2023and 25.01.2024 passed in LAR No. 22/2017 by 08th Joint Civil JudgeSenior Division, Aurangabad.2.It is a case of the petitioner that the land admeasuring 80 Rfrom Gut No. 43 situated at Village Jambhli, Tq. Paithan, DistrictAurangabad came to be acquired for the purpose of DMIC project. It wasa compulsory acquisition. Reference came to be made under Section 34of Maharashtra Industrial Development Act before Civil Judge SeniorDivision, Aurangabad. On 06.07.2022, respondent No. 2 who is daughterof petitioner entered into compromise with the petitioner and she agreedto receive the compensation of Rs. 7,00,000/-out of total compensationreceivable by the petitioner. On 13.10.2022, learned Reference Courtheld that the petitioner is entitled to receive Rs.38,44,800/- andRespondent No. 2 to be entitled to receive Rs. 7,00,000/-. The916-WP-3220-2024.odt1 of 5
Legal Reasoning
and petitioner along with other respondents and the entitlement of thepetitioner is decided by the Reference Court. It is his submission that theReference Court has lost the site of the fact that the petitioner is oldaged landless person and he requires the said amount for his livelihood.It is also contended that there is absolutely no reason or jurisdiction forwithholding the said amount. He argued that Respondent No. 2 neverobjected to withdraw the amount and the petitioner being Muslim, hisdaughter cannot claim any right in respect of the ancestral propertyduring the life time of petitioner. In so far as the claim of Naseebabi isconcerned, it is his submission that the appropriate proceedings for therecovery of the amount of maintenance are pending and that thepetitioner has already deposited a sum of Rs. 3,00,000/- and the amountof Rs. 5,000/- per month is being deposited regularly before the FamilyCourt.5.There is no dispute about the fact that the subject property isancestral property of petitioner and respondents other than PetitionerNos. 2, 3 and 6. There is compulsory acquisition of the land andcompensation amount is already determined. There is no dispute madeby parties about quantum of compensation. The Reference Court hasdecided the share of each owner of the subject property and the amountof compensation is also separately carved out. The question arose beforethe Reference Court is as to whether it was open for the Respondent No.2 to raise any objection with regard to the disbursement of the916-WP-3220-2024.odt3 of 5 compensation amount of the petitioner. In this regard, it is pertinent tonote that there was compromise arrived at between petitioner and hisdaughter wherein she agreed to receive Rs. 7,00,000/- out of theamount of compensation payable to the petitioner. Later on, she tookobjection to the said compromise on the ground that the same isobtained by fraud. In this regard, it is pertinent to note that the subjectproperty is the ancestral property of the Mumtazbi. The daughter of thepetitioner would not get any right in the said property during the lifetime of her father. In the backdrop of these facts, when petitioner is oldaged person and his land came to be acquired compulsorily, he iscertainly entitled to receive the compensation for maintaining himself. Insuch circumstances, the interest of Respondent No. 2 Mumtazbi/daughterof the petitioner can be taken care by permitting the petitioner towithdraw the amount of compensation except for the sum of Rs.10,00,000/-.6.As far as grievance made by Naseebabi is concerned, sheclaimed right of maintenance against the petitioner. Since, she was notjoined as a party, subsequently petitioner sought her to join as arespondent. She was served by paper publication. None appeared on herbehalf. Her absence indicates that she is not interested in opposing thepetition.7.Learned counsel for the petitioner, on instructions, made916-WP-3220-2024.odt4 of 5 statement that a sum of Rs. 3,00,000/- has already been depositedbefore the Family Court. So also, an amount of Rs. 5,000/- per month isbeing deposited regularly towards her maintenance. This statement isaccepted. On account of absence of Naseebabi, no contrary materialthereto is brought on record. In any case, even if, the right of Naseebabiis accepted to receive maintenance from the petitioner, it will not bejustified that the petitioner is prevented from withdrawing the amountwhich is otherwise due to him.8. In view of the above, petition stands allowed. Petitioner ispermitted to withdraw amount as determined by the Reference Courtalong with accrued interest except for a sum of Rs. 10,00,000/- andinterest accrued thereon. The amount of Rs. 10,00,000/- be kept inFixed Deposit. The said deposited amount would be subjected to theorder passed by the Competent Court in respect of the right ofRespondent No. 2 Mumtazbi.9.An application filed before the Reference Court for withdrawal ofthe amount by the petitioner, therefore, stands allowed partly in theabove terms.10.Petition stands allowed in above terms.(R. M. JOSHI, J.)bsj916-WP-3220-2024.odt5 of 5
Arguments
installment of Respondent No. 4 and 5 was also decided. It is thereafteron 31.02.2023, Petitioner and Respondent No. 5 filed application forwithdrawal of their respective shares from the total amount ofcompensation. These applications were opposed by Respondent No. 2and 3. Both Application for withdrawal of the amount came to berejected by the Reference Court by passing similar order. It was observedthat Respondent No. 2 has filed writ petition challenging the award ofReference Court and the same is pending. So also, recovery proceedingsfor maintenance amount of Rs. 3,06,000/- are pending againstpetitioner. On 14.09.2023, this Court set aside order dated 21.02.2023 inWrit Petition No. 3710/2023 with observation that since no proceeding ispending against the petitioner the ground on which, the application forwithdrawal of the amount was rejected does not survive. The petitioner,therefore, filed application on 05.09.2023 for withdrawal of the amountof Rs. 2,00,000/- to deposit the same in Family Court. Thereafter, on20.09.2023, petitioner filed application for the withdrawal of the amountof compensation, which came to be rejected by order dated 18.10.2023.A review application filed by the petitioner before the Reference Courtalso was dismissed on 25.01.2024.3.Heard learned counsel for both sides.4.Learned counsel for the petitioner submits that the amount ofcompensation is received in respect of the land owned by the petitioner916-WP-3220-2024.odt2 of 5