Karnataka High Court
Sri Monappa Y Balekundri vs The Assistant Commissioner on 27 May, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 104285 OF 2023 (GM-CPC)
BETWEEN:
1. SRI MONAPPA Y. BALEKUNDRI,
AGE: 82 YEARS, OCC: AGRICULTURE,
R/O: 326, PATIL GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
2. SRI PRAHLAD MONAPPA HALAGEKAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI. Deleted v/o
Dated 24.4.2024
3. SRI BHOMESH JOTIBA BIRJE,
AGE: 52 YEARS , OCC: AGRICULTURE,
R/O : RAYAT GALLI VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
4. SRI ANAND SANTU Y.KAJOLKAR,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O: RAYAT GALLI, VADGAON
BELAGAVI, TAL AND DIST. BELAGAVI.
5. SRI MANOHAR FAKIRA KANGRALKAR,
AGE: 47 YEARS, OCC: AGRICULTURE ,
R/O: PATIL GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
6. SRI BHAIRU FAKIRA KANGRALKAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
7. SRI NARAYAN YALLAPPA BALEKUNDRI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: SAMBJAI NAGAR, VADGAON, Deleted v/o
BELAGAVI, TAL AND DIST. BELAGAVI. Dtd. 24.04.2024
8. SRI SHANKAR GANAPATI BALEKUNDRI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KARBHAR GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
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9. SRI HANMANT PARASHRAM BALEKUNDRI,
AGE: 58 YEARS, OCC: AGRICULTURE ,
R/O: VISHNU GALLI , VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
10. SRI TUKARAM NARAYAN SOMNACHE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: JERI GALLI, ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
11. SRI GOPAL BHRAHMAJI SOMANACHE,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: RAGHUNATH PETH ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
12. SMT. KRISHNABAI LAXMAN BADRUK, Deleted
AGE: 62 YEARS, OCC: AGRICULTUREv/o dtd24.4.2024
R/O: JERI GALLI, ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
13. SRI SUBHASH MALSARJI CHOUGULE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: JERI GALLI, ANAGOL, BELAGAVI,
TAL AND DIST. BELAGAVI.
SRI AJIJ SAWANT KADAD,
SINCE DECEASED NAME IS DELETED.
14. SRI MANOHAR PARASHRAM KAMU,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: JERI GALLI, ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
15. SRI LAXMAN SHAMU DEMJI,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: RAGHUNATH PETH ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
16. SRI VITHAL BHIMANA BADRUK,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: RAGHUNATH PETH ANAGOL,
BELAGAVI, TAL AND DIST. BELAGAVI.
17. SRI MANOHAR DEVAPPA MALAVI, Deleted
AGE: 62 YEARS, OCC: AGRICULTURE,v/o dtd 24.4.2024
R/O: KALMESHWAR ROAD,
JUNE BELAGAVI
BELAGAVI, TAL AND DIST. BELAGAVI.
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18. SRI GUNDU DHAKLU/TOPPANNA
BHAGANACHE, AGE: 55 YEARS,
OCC: AGRICULTURE,R/O: NARVEKAR GALLI,
SHAHAPUR,BELAGAVI, TQ. & DIST. BELAGAVI.
19. SRI MANOHAR PARASHRAM BACHIKAR,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KORE GALLI, BELAGAVI,
TAL AND DIST. BELAGAVI.
20. SRI RAGHUNATH SOMNATH BHOSALE, Deleted
AGE: 65 YEARS, OCC: AGRICULTURE, v/o dt.24.4.2024
R/O: JUNE BELAGAVI
TAL AND DIST. BELAGAVI.
21. SRI BALKRISHNA LUMANA SALGUDE,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: JUNE BELGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
22. SRI GANAPATI LAXMAN KURBAR, Deleted
AGE: 69 YEARS, OCC: AGRICULTURE, v/o dt.24.4.2024
R/O: KURBAR GALLI, JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
23. SRI SANDEEP TANAJI BHOSALE,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
24. SMT. SHOBHA NARAYA DHAMEKAR, Deleted
AGE: 52 YEARS, OCC: AGRICULTURE, v/o dt.24.4.2024
R/O:LAXMI GALLI, JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
25. SRI SUNIL SHANKAR BHOSALE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: LAXMI GALLI, JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
26. KRISHNA BABURAO BHOSALE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: LAXMI GALLI, JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
27. SRI RAMESH LAXMAN BAJANTRI,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KORVI GALLI, JUNE BELAGAVI,
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BELAGAVI, TAL AND DIST. BELAGAVI.
28. SRI MANOHAR DEVAPPA MALVI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KALAMESHAR ROAD,
JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
29. SRI RAGUNATH PAILWANACHE,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: BAZAR GALLI, JUNE BELAGAVI,
BELAGAVI, TAL AND DIST. BELAGAVI.
30. SRI TANAJI S HALAGEKAR, Deleted
AGE: 52 YEARS, OCC: AGRICULTURE, v/o dt.24.4.2024
R/O: RAYAT GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
SRI MANOHAR APAYA KAKATIKAR,
SINCE DECEASED NAME IS DELETED .
31. SRI NAGENDRA MALLAPPA MARYAKACHE,
AGE:57 YEARS, OCC: AGRICULTURE,
R/O: VITHAL GALLI, HALAGA,
TAL AND DIST. BELAGAVI.
32. SRI BHIMRAO BHAIRU SHINDE,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, HALAGA,
TAL AND DIST. BELAGAVI.
Deleted
33. SRI PIRAJI BABU SHINDE, v/o dt.24.4.2024
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, HALAGA,
TAL AND DIST. BELAGAVI.
34. SRI VISHNU BHUJANG CHATUR,
AGE: 77 YEARS, OCC: AGRICULTURE ,
R/O: PATIL GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
35. SRI ANILKUMAR B. ANAGOLKAR,
AGE: 64 YEARS, OCC: AGRICULTURE ,
R/O: MACHHE, TAL AND DIST. BELAGAVI.
36. SRI SANJAY VITHAL SULAGEKAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: MHADEV GALLI, MACCHE,
TAL AND DIST. BELAGAVI.
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37. SRI BHALCHANDRA KEDARI SANADI,
AGE: 64 YEARS, OCC: AGRICULTURE ,
R/O: MAHADEV GALLI, MACCHE,
TAL AND DIST. BELAGAVI.
38. SRI SHIDRAY RAMA LAD,
AGE: 67 YEARS, OCC: AGRICULTURE ,
R/O: MAHADEV GALLI, MACCHE,
TAL AND DIST. BELAGAVI.
39. SMT. SUREKHA KIRAN BHOSALE,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: LAXMI GALLI, JUNE BELAGAVI,
TAL AND DIST. BELAGAVI.
Deleted
40. SRI MARUTI JOTIBA BIRJE, v/o dt.24.4.2024
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: RAYAT GALLI, VADANO, BELAGAVI,
TAL AND DIST. BELAGAVI.
41. MRS. SHAKUNTALA PUNDALIK KANBARKAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: ACHARYA GALLI, SHAHAPUR,
BELAGAVI, TAL AND DIST. BELAGAVI.
42. SRI GAJANAN NAGO SAPRE,
AGE:62 YEARS, OCC: AGRICULTURE ,
R/O: VISHNU GALLI, VADGAON,
BELAGAVI, TAL AND DIST. BELAGAVI.
43. SRI MAHADEV BHOMANI BAGEWADIKAR,
AGE: 69 YEARS, OCC: AGRICULTURE ,
R/O: NAVI GALLI, SHAHAPUR,
BELAGAVI, TAL AND DIST. BELAGAVI.
44. SRI SARVDNYA DEVENDRA BHOJANNAVAR,
AGE:58 YEARS, OCC: AGRICULTURE ,
R/O: NAVI GALLI, SHAHPUR,
BELAGAVI, TAL AND DIST. BELAGAVI.
...PETITIONERS
[BY SRI D. RAVIKUMAR GOKAKAKAR & SRI HANUMANTH REDDY
SAHUKAR, ADVS., FOR PETITIONER NOs.5, 6, 9, 10, 11, 13-16,
18, 19, 21, 23, 25-29, 31, 34-38 & 42 - 44;
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[SRI MANJUNATH KARIGANNAVAR, ADVOCATE FOR PETITIONER
NOs.1-4, 7, 8, 12, 17, 20, 22, 24, 30, 32, 33, 39, 40 & 41, BUT
PETITION AGAISNT THEM IS DISMISSED V/C/O DT. 24.4.2024]
AND:
1. THE ASSISTANT COMMISSIONER,
BELAGAVI AND CALA, NH4-A, BELAGAVI,
TAL AND DIST. BELAGAVI-590001.
2. NATIONAL HIGHWAY AUTHORITY OF INDIA,
DGM (TECH) AND PROJECT DIRECTOR,
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
PROJECT IMPLEMENTATION UNIT,
II CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD-580004.
...RESPONDENTS
(BY SRI SAGAR LADDA & SRI D.M. MALLI, ADVOCATES FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A) WRIT OR
ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI
QUASHING THE ORDER AT ANNEXURE-A i.e., DATED 05-04-2023
PASSED IN MA.NO.10/2022, ON THE FILE OF 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, BELAGAVI, B) CONFIRM THE ORDER
DATED 23.12.2020 ON I.A. NO.III IN O.S.NO.1051/2020, PASSED BY
THE VIII ADDL. CIVIL JUDGE AND JMFC., BELAGAVI.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 04.04.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THROUGH VIDEO CONFERENCE AT PRINCIPAL
BENCH, BENGALURU, MADE FOLLOWING :
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ORDER
Though matter was listed for consideration of I.A.no.1/2024, with consent of learned counsel for parties, it was taken up alongwith main matter, heard and reserved for orders on 04.04.2024.
Thereafter, matter was moved and listed for further hearing on 24.04.2024, petitioners no.1 to 4, 7, 8, 12, 17, 20, 22, 24, 30, 32, 33, 39, 40 and 41 prayed for dismissal of writ petition as withdrawn and orders were passed accordingly.
This writ petition is filed seeking for following reliefs:
A. Issue a writ or order or direction in the nature of writ of Certiorari quashing the order at Annexure-A i.e. dated 05-04-2023 passed in MA.no.10/2022, on the file of 1st Additional Senior Civil Judge and CJM, Belagavi.
B. Confirm the order dated 23-12-2021 on I.A.No.III in O.S.No.1051/2020, passed by the VII Addl Civil Judge and JMFC, Belagavi, vide Annexure-E.
2. Sri D. Ravi Kumar Gokakakar, learned counsel for petitioners, submitted that petitioners were plaintiffs filed O.S.no.1051/2020 seeking following reliefs.
"A) A Decree declaring that, the notification dated 24.10.2009 issued under Section 3A of NH Act 1956; the notification dated 27.08.2011 issued under Section 3D of the NH Act, 1956; the notification dated 30.10.2018 issued under -8- Section 3A of the NH Act, 1956; and the notification dated 18.07.2019 issued under Section 3D of the NH Act, 1956; issued by the First defendant, are no way connected to the lands lying in between NH4 at Halage and NH4A on Machhe village; and in particular, in respect of the schedule lands of the plaintiffs;
B) Decree declaring that, the notification dated 24.10.2009 issued under Section 3A of NH Act 1956 and the notification dated 27-08-2011 issued under Section 3D of the NH Act, 1956, are lapsed due to bar enjoined under Section 3D of the Act;
C) Decree for consequential relief of injunction restraining the defendants or anybody claiming under them from interfering with the possession and enjoyment of the schedule lands by the plaintiffs;
D) Any other decree/order, which this Hon'ble court deems it fit and proper in the facts and circumstances of the case."
Plaintiffs have later on given up prayer (B).
3. It was submitted, plaintiffs were in actual possession and occupation of agricultural lands (mentioned in suit schedule). Said lands, though situated about 10 to 12 Kms. from National Highway no.4A were wrongly included in Notifications issued by National Highway Authority of India - defendants no.2 and 3 ('NHAI' for short).
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4. Challenging acquisition notifications, plaintiffs had filed W.P.nos.110962-111011/2019 before this Court. In said petition, this Court taking note of contention urged by NHAI in statement of objections, that starting point of N.H.4A was shifted from Fish Market to K.M.0.00 of Belgaum Bypass, had observed, such shifting would be a complicated and disputed question of fact, not capable of being adjudicated by this Court, and relegated petitioners to approach competent Civil Court.
5. It was submitted, in terms of liberty reserved, present suit was filed. In said suit, plaintiffs had filed I.A.no.III under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 ('CPC' for short) for temporary injunction restraining defendants from disturbing possession and cultivation of suit schedule lands of plaintiffs. On 23.12.2021, trial Court allowed application and granted temporary injunction as follows:
"The I.A.No.III filed by the plaintiffs U/O.XXXIX Rules-1 and 2 R/w. Sec.151 of the C.P.C. is 'ALLOWED'.
The defendants, their agents, servants, henchmen or anybody acting on their behalf are hereby restrained from disturbing the plaintiffs in cultivation of their suit schedule lands till further order.
This order binds only to the suit properties mentioned in the schedule annexed with plaint particularly to the extent and boundaries shown in the schedule of each respective properties of the plaintiffs.
No order as to costs."
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6. Aggrieved thereby, NHAI preferred M.A.no.10/2022. On 05.04.2023, first appellate Court allowed appeal, modifying order passed by trial Court on I.A.no.III as follows:
"Miscellaneous Appeal filed by the appellants/defendants under Order XLIII Rule 1(r) of C.P.C. is allowed.
The order passed by the learned VIII Addi. Civil Judge & JMFC, Belagavi on IA No.III under Order XXXIX Rule 1 & 2 CPC in O.S.No.1051 of 2020 dated:
23.12.2021 is hereby ordered to be modified.
As a result order passed on I A No.3 is modified as under:
The application filed by the plaintiffs under Order XXXIX Rule 1 & 2 CPC is partly allowed.
The defendants are restrained by way of temporary injunction from interfering with possession & cultivation of lands in suit property which are not acquired as per notification dated 24.10.2009, 27.08.2011 and 18.07.2019.
The prayer of temporary injunction in respect of lands acquired as per notification dated 24.10.2009, 27.08.2011 and 18.07.2019 is hereby rejected.
Parties to bear their own cost."
7. It was submitted, aggrieved by said order, present writ petition was filed by plaintiffs only; while, NHAI had accepted impugned order. Though in terms of said order, NHAI had held its hand for more than ten months taking advantage of ambiguous order passed by first appellate Court, respondents had begun destroying crops and changing nature of suit schedule lands by appending photographs. Therefore,
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plaintiffs had filed I.A.no.1/2024 for consideration of interim prayer, but matter was heard finally.
8. It was submitted, while passing order on I.A.no.III, trial Court had given finding with regard to possession, balance of convenience and hardship in favour of plaintiffs and granted temporary injunction vide order dated 23.12.2021 restraining defendants from disturbing plaintiffs' cultivation of their lands until further orders. It was submitted, when order of temporary injunction was operating against respondents, M.A.no.10/2022 was filed, but, violated order of temporary injunction during its pendency. Therefore plaintiffs had filed I.A.no.4 for rejection of appeal, until NHAI had purged their contumacious conduct. Without passing any orders on said application, first appellate Court had allowed appeal and modified order of temporary injunction restraining defendants from interfering with possession and cultivation of suit properties, which were not acquired under notifications dated 24.10.2009, 27.08.2011 and 18.07.2019, while holding application for temporary injunction against said notifications stood rejected.
9. It was submitted, first appellate Court had committed material irregularity in failing to consider I.A.No.4 before disposing of appeal. On said ground alone, interference
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was warranted. It was further submitted, when NHAI had violated order of temporary injunction, until purging of contumacious conduct, appeal itself could not be proceeded with by relying upon decisions in State of Bihar V/s Sonabati Kumari reported in AIR 1961 SC 221 and M.N.Ramu V/s Saraswathamma reported in 1991 (1) KLJ 333.
10. It was submitted, while passing order, trial Court had observed that NHAI did not produce records to show change in location of zero point. It was submitted, in view of observations by this Court in CRP no.100013/2022 (Annexure- H), suit was held to be maintainable after giving up prayer (B). Therefore, question of maintainability of suit taken into account by first appellate Court would be unjustified and untenable. On above grounds, sought for allowing writ petition.
11. On other hand, Sri Sagar Ladda, learned counsel for NHAI sought to oppose writ petition. It was submitted, purpose of acquisition was for widening of NH-4A. Though initially notifications were issued for acquisition of lands from Fish Market at Belagavi, by subsequent acquisition notification, there was shifting of zero point from Fish Market to National Highway no.4 at Halaga village. Since certain extent of plaintiffs' lands were notified for acquisition for public purpose,
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interests of individuals had to give into larger public interest. It was submitted Section 20-A of Specific Relief Act, 1963 ('SRA', for short), specifically prohibited grant of injunction in relation to infrastructure project, which would delay its progress and completion. On said grounds, sought dismissal of writ petition.
12. Heard learned counsel and perused writ petition record.
13. From above, it is seen, plaintiffs are challenging order passed by first appellate Court modifying order of temporary injunction granted by trial Court.
14. Though challenge is against divergent findings, Hon'ble Supreme Court in Shaikh Ali Hossain & Ors. Vs. Shaikh Showkat Ali & Another1, has held that High Court while exercising supervisory jurisdiction under Article 227 of Constitution of India, cannot sit as an appellate Court. Further, Hon'ble Supreme Court in Mohd. Mehtab Khan and others Vs Khushnuma Ibrahim Khan and others, reported in (2021) 9 SCC 221, has held there would be no scope for interference even if view taken by trial Court/appellate Courts were to be one of plausible views.
1 (2008) 8 SCC 180
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15. In light of above, whether impugned order calls for interference, would requires to be examined.
16. Insofar as first contention of plaintiffs that main issue in suit would be, whether there was shifting of zero point. First appellate Court has observed that notifications for acquisition of lands were issued by respondent in two batches:
Firstly, in year 2010-2011 and second, in year 2018-19. It observed that notifications issued in second batch covered lands belonging to plaintiffs situated between NH-4A and NH-4.
Admittedly, there was no challenge against said notifications.
17. It is settled legal principle that civil suit questioning acquisition on whatsoever ground, would not be maintainable as held in H.N. Jagannath v. State of Karnataka2; Bangalore Development Authority v. Brijesh Reddy3 and State of Bihar v. Dhirendra Kumar and others4.
18. Though, this Court observed that suit filed by present petitioners was maintainable after giving up prayer-B and suit was filed as per liberty granted in W.P.no.110962- 111011/2019, disposed of on 10.11.2020, one thing to hold 2 (2018) 11 SCC 104 3 (2013) 3 SCC 66 4 (1995) 4 SCC 229
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and observe suit was maintainable and another to deduce that same would permit grant of temporary injunction. Section 41 (ha) of Specific Relief Act specifically prohibits grant of injunction if it would impede or delay progress for completion of any infrastructure project etc.
19. Therefore, submission of learned counsel for plaintiffs that taking possession or changing nature of suit property, when prayer sought in suit was likely to render it unlawful or illegal, would require to be interfered with and status quo maintained till disposal of suit, provisions of National Highways Act, 1956, under which NHAI claims to have proceeded to acquire suit schedule lands provides for determination of compensation, temporary occupation as well. Therefore, plaintiffs would not suffer irreparable loss and injury which cannot be quantified in terms of money.
20. Order impugned was passed on 05.04.2023. Present writ petition was filed on 19.04.2023. Thereafter there has no progress until 19.02.2024, when notice was ordered and panel counsel was directed to accept notice. It is stated that panel counsel has refused notice for want of instructions. No memo or affidavit is filed to that effect.
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In view of above circumstances, since prima facie, it appears in guise of temporary injunction, petitioners are seeking to obstruct respondents from proceeding to execute work in pursuance of acquisition notifications.
Writ petition is dismissed.
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JUDGE CLK