Writ Petition No. 5679 of 2011

22nd March, 2012

Petitioner Counsel: Mr. SANJAY THOKADE
Respondent Counsel: Ms. P.S. CARDOZO, Mr. T.D. DESHMUKH

Cases Cited:
Dr. G. H. Grant Vs. The State of Bihar, AIR 1966 SC 237 [Para 4,7]
Sharda Devi Vs. State of Bihar and Another, 2003(2) ALL MR 319 (S.C.)=(2003) 3 SCC 128 [Para 4,8,10,12]
Arulmighu Lakshminarasimhaswamy Vs. Union of India and Others, (1996) 6 SCC 408 [Para 4,13,15]
Sri Prasad Rao Mikkilineni and Others Vs. State of A. P. and Others, (2000) 9 SCC 371 [Para 4,14]
Mahendra Prasad and etc. Vs. State of Bihar and others, AIR 2004 Patna 26 [Para 5]
Govind Narayan Lotlikar Vs. Savitibai Raghuvira Lotlikar and Others, 1986 Mh. L. J. 844 [Para 5,11]

JUDGMENT

JUDGMENT :- On 11th November, 2011, following order was passed:-

"1. Notice before admission is already issued by order dated 28/7/2011. This notice is now being issued for final disposal at the stage of admission. Learned AGP waives service on behalf of the Respondent Nos.1 to 3. Mr. Deshmukh waives service on behalf of the Respondent Nos.5 to 9. Respondent No.4 is really a formal party since the dispute is regarding reference under section 30 and 31 of the L.A. Act, 1984. Mr. Thokade however to serve private notice on the Central Government Advocate for Union of India, Ministry of Law and Justice, Aykar Bhavan, New Marine Lines, Mumbai AGP to get original record pertaining to award. Stand over to 22nd November, 2011 at 3.p.m.

2. The learned Advocates to circulate compilation of relevant judgments on or before 19th November, 2011.

3. In case the amount is deposited in Fixed Deposit or Savings bank account as on today, the Respondent No.5 to 9 shall not withdraw the same until further orders."

2. RULE. Rule made returnable forthwith and heard by consent of the parties. Record was already produced and inspection was taken. The learned AGP waives service on behalf of Respondent Nos.2 & 3. Respondent Nos.1 and 4 are the formal parties. Mr. Deshmukh waives service on behalf of Respondent Nos.5 to 9.

3. The dispute involved in this Petition lies in a narrow compass and the facts are as under:-

(a) It is an admitted position that the land in question namely - land bearing gat No.50/1 situated at Village Aherwadi, Taluka South Solapur, District Solapur was owned by deceased Govind Narayan Chormule. He died on 13th August, 1991 . It is also not disputed that the Petitioner is the daughter of late Govind Chormule whereas he had one son named Bhagwat who died on 16th June, 1998. Respondent Nos.5 to 9 are the widow and children of the said Bhagwat. These facts are admitted. After the death of Govind, Mutation Entry was made and the name of only Bhagwat was recorded in the Revenue Record and the name of Petitioner was not recorded. There were some proceedings initiated by the Petitioner regarding Certification of Mutation Entry under the provisions of the MLR Code 1966 which were decided against the Petitioner.

(b) The land was thereafter proposed to be acquired for Respondent No.1 and the notification under Section 4 of the L.A. Act, 1894 is issued on 10th November, 2008. On 13th November, 2008, the Petitioner has filed RCS No.880 of 2008 before the learned Civil Judge, Junior Division, Solapur for partition and separate possession against Respondent Nos.5 to 9 and the same is pending. On 18th August, 2010, the Petitioner issued notice to the Divisional Commissioner, Collector and the SLAO No.2 Solapur to claim a share in the compensation and objected to distribute compensation to Respondent Nos.5 to 9. On 3rd October, 2010, the Petitioner submitted another application to SLAO, Solapur who exercised the power of Collector under the Act and demanded 50% of the compensation. The SLAO/ Collector did not send any notice of award to the Petitioner and the award under Section 11 was declared on 29th January, 2011. No compensation was awarded to the Petitioner and the entire compensation was awarded to Respondent Nos.5 to 9. In fact, it is the consent award and the Respondent Nos.5 to 9 did not raise any objection regarding the compensation or about the area of land.

(c) Thereafter, on 11th April, 2011, the Petitioner filed Application before the Collector, seeking reference under Section 30 of the Act by impugned order dated 3rd May, 2011, the said application has been rejected, giving rise to the present Writ Petition.

4. Advocate Thokade submitted that the Collector had no right to decide the interse dispute relating to the title and merely because the name of the Petitioner is not entered in the revenue records, he could not have declined to make the reference under Section 30. Mr. Thokade relied upon the following Judgments:-

(i) Dr. G. H. Grant v/s. The State of Bihar, AIR 1966 SC-237

(ii) Sharda Devi v/s. State of Bihar and Another, (2003) 3 SCC-128 : [2003(2) ALL MR 319 (S.C.)]

(iii) Arulmighu Lakshminarasimhaswamy v/s. Union of India and Others, (1996) 6 SCC-408

(iv) Sri Prasad Rao Mikkilineni and Others v/s. State of A. P. and Others, (2000) 9 SCC-371

5. On the other hand, Mr. Deshmukh submitted that the power under Section 30 is a discretionary power. Mr. Deshmukh submitted that the name of the Petitioner was not appearing in the revenue record and, hence, the Petitioner was not a person interstated in the compensation under the said Act. He, therefore, submitted that since the Petitioner was not participating in the proceedings under Section 11, there was no obligation to make a reference under Section 18 or 30. Mr. Deshmukh relied upon the following two Judgments:-

(i) Mahendra Prasad and etc. v/s. State of Bihar and others, AIR 2004 Patna 26

(ii) Govind Narayan Lotlikar v/s. Savitibai Raghuvira Lotlikar and Others, 1986 Mh. L. J.-844

6. I have carefully considered the rival submissions. The fact that the Petitioner is the daughter of original owner-Govind, is not in dispute. Whether the Petitioner is entitled to get any share in the land and whether she is entitled to get 50% share as claimed by her is the matter which will have to be decided by the Civil Court on the basis of the evidence to be led by the parties and by applying provisions of the Hindu Succession Act, 1956. The question is whether in the facts of this case, the Collector could have decline to make reference though the objection for disbursing compensation only in favour of Respondent Nos.5 to 9 was raised well in advance even prior to making of award.

7. After examining the scheme of the entire Act, the Judgment of the Supreme Court in the case of Dr. G. H. Grant (supra) lays down the following propositions in paragraphs 18 and 19 of the said Judgment which read thus:-

"Para-18:- The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled' to receive compensation, and there is nothing in S. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved."

Para-19:- It was strongly pressed that under S.. 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled' thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and therefore the only persons who can raise a dispute under S. 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of S. 30. The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation, that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation therefore under S. 31 to the person declared by the award to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit."

8. In the subsequent Judgment of the Supreme Court in the case of Sharda Devi, [2003(2) ALL MR 319 (S.C.)] (supra) , after the complete analysis of the provisions of Sections 18 and 30 of the Act, three differences in the provisions of Sections 18 and 30 were noted by the Court. The Supreme Court has observed thus in paragraphs 25 and 26 as under:-

"Para-25:- Keeping in view the principles laid down by this Court in Dr. G.H. Grant's case (supra) and analyzing in-depth the provisions of the Act the difference between reference under Section 18 and the one under Section 30 can be summarized and set out as under.

By reference to nature of power

Under Section 18 of the Act the Collector does not have power to withhold the reference. Once a written application has been made satisfying the requirements of Section 18, the Collector shall make a reference. The Collector has no discretion in the matter; whether the dispute has any merit or not is to be left for the determination of the Court. Under Section 30 the Collector may refer such dispute to the decision of the Court. The Collector has discretion in the matter. Looking to the nature of the dispute raised, the person who is raising the dispute, the delay in inviting the attention of the Court, and so on are such illustrative factors which may enter into the consideration by the Collector while exercising the discretion. If the Collector makes the reference it may be decided by the Court subject to its forming an opinion that the dispute was capable of reference and determination under Section 30 of the Act. In case the Collector refuses to make a reference under Section 30 of the Act, the person adversely affected by withholding of the reference or refusal to make the reference shall be at liberty to pursue such other remedy as may be available to him under the law such as filing a writ petition or a civil suit.

Para-26:- Section 30 is not confined in its operation only to 'persons interested'. It would, therefore, be available for being invoked by the 'persons interested' if they were neither present nor represented in proceedings before the Collector, nor were served with notice u/s 12(2) of the Act or when they claim on the basis of a title coming into existence post award. The definition of 'person interested' speaks of 'an interest in compensation to be made'. An interest coming into existence post award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to Section 30. In any case, the dispute for which Section 30 can be invoked shall remain confined only (i) as to the apportionment of the amount of compensation or any part thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is payable. The State claiming on the basis of a pre-existing right would not be a 'person interested', as already pointed out hereinabove and on account of its right being pre-existing, the State, in such a case, would not be entitled to invoke either Section 18 or Section 30 seeking determination of its alleged pre-existing right. A right accrued or devolved post award may be determined in a reference u/s 30 depending on Collector's discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon in any independent legal proceedings. This view is just, sound and logical as a title post award could not have been canvassed upto the date of the award and should also not be left without remedy by denying access to Section 30. Viewed from this angle, Section 18 and 30 would not overlap and would have fields to operate independent of each other.

9. Thereafter, the Supreme Court has held that Section 30 is not confined in its operation only to "persons interested" and, it would, therefore, be applicable for being invoked by person interested, if they were neither present or represented in the proceedings before the Collector nor were served with the notice under Section 12 (2) of the Act or when they claimed on the basis of the title coming in to existence post award. We are not concerned with a claim coming into existence post award.

10. What is clear from the Judgment of the Supreme Court in the case of Sharda Devi, [2003(2) ALL MR 319 (S.C.)] (supra) is that the discretion which is conferred on the Collector under Section 30 is not uncontrolled discretion. The Collector has to consider the nature of the dispute raised, the person who is raising the dispute, the delay if any in inviting the attention of the Collector to the dispute etc. In this case, the relationship between the Petitioner and Respondent Nos.5 to 9 was not disputed. The fact will indicate that even prior to making of the award, on two occasions, the attention of the Collector was invited to the fact that the Petitioner is the daughter of the original owner Govind Chormule and was claiming to be entitled to 50% of the compensation. In such a situation, in the present case, it cannot be held that the discretion has been properly exercised by the Collector.

11. In the present case, the Judgment of the Patna High Court is relied upon by Respondent Nos.5 to 9. It is true that the facts are similar. Even in the present case, the Petitioner had filed an application for temporary injunction in the suit. What is interesting to note is that the Respondent Nos.5 to 9 had opposed the application by contending that the Petitioner has a remedy of making an application for reference under Section 30 of the Act. Accepting this defence, the Civil Court rejected the application for injunction. Thereafter, when the Petitioner made an application for reference, that has been rejected and the Respondent Nos. 5 to 9 are now supporting the order of rejection of reference. In view of this situation, the Judgment of the Patna High Court relied upon by the Advocate for Respondent Nos.5 to 9 is clearly distinguishable. Similarly, the Judgment of this Court in the case of Govind Lotlikar (supra) will not also be of much use. That was the case where the issue involved was about the applicability of Order I Rule 10 of the Code of Civil Procedure, 1908 in a pending reference under Section 30, that is the case here.

12. In the case of Sharda Devi, [2003(2) ALL MR 319 (S.C.)] (supra), the Supreme Court has held that in case the Collector refuses to make reference under Section 30, the person adversely affected by withholding of the reference has a remedy of filing Writ Petition or a Civil Suit. In this case, the Civil Suit filed by the Petitioner for partition is also pending but that does not mean that the remedy of Writ Petition for challenging this order of Collector is not available. In fact, in view of the two subsequent Judgments of the Supreme Court, to which reference will be made by me, the Petitioner has chosen the proper remedy.

13. In the case of Arulmighu (supra), the Supreme Court has observed thus in paragraphs 2 and 3 as under:-

"Para-2:- On the admitted facts, the approach of both the learned single Judge and of the Division Bench in the writ petition and the W.A. No. 1358/95 indicated in the impugned order made on January 30, 1996 cannot be sustained. Notification under Section 4(1) of the Land Acquisition Act. 1894 was published on June 4, 1987 acquiring the land in question for the public purpose. After compliance of the notice under Sections 9 and 10 of the Act and enquiring the award came to be passed by the land Acquisition Office on February 7,1990. The possession thereafter was taken on October 30, 1990. The question, therefore, would be what would be the proper procedure to be adopted, in case of dispute as to the title of the land acquired under the Act ? The learned single Judge declared title of the petitioner in the writ petition and the Division Bench directed civil Court to decide the title. Both views are obviously erroneous in law. The Land Acquisition Officer has to determine the extent of the land, the persons entitled to compensation and the compensation to be determined under Section 23 (1) of the Act. If he finds that there is any dispute as to person entitled to receive the compensation, necessarily he has to deposit the amount under Section 31 of the Act into the Court to which reference would lie. On such a dispute having arisen, he has to make a reference to the Court under Section 30 of the Act to decide the dispute between the Competing persons who set up rival title to the compensation. Under those circumstances, the only legal course open is that a direction be issued to the Land Acquisition Officer to make a reference under Section 30 to decide the inter se title to receive the compensation either by the appellant or by the 4th respondent, as the case may be and the reference Court would decide the matter in accordance with law.

Para-3:- The appeal is accordingly allowed. The orders passed by the learned single Judge and the Division Bench stand set aside. The Land Acquisition Officer is directed to make a reference to the Court under Section 30. We are informed that the compensation has already been deposited in interest earning security Therefore, if the parties so require, the reference Court may be approached in this behalf or the order of the learned single Judge may conclude in force till the reference is decided in accordance with law. The latter would be the appropriate course. No costs.

14. In the subsequent Judgment of Supreme Court in the case of Sri Prasada Rao (supra), the Supreme Court has observed thus in paragraph 4 which reads thus:-

"Para-4:- We find that there is a dispute about the title as also regarding computation of appropriate compensation for acquiring the land in question. Hence, this is a fit case where the High Court should have allowed the writ petition and should have directed the Land Acquisition Officer to make reference under Section 18 read with Section 30 of the Land Acquisition Act, 1894. Only on this short ground, therefore, this appeal is allowed. The impugned order passed by the High Court is set aside and the Land Acquisition Officer is directed to make a reference, under Section 18 read with Section 30 of the Land Acquisition Act, to the appropriate court within eight weeks from the receipt of a copy of this order at his end."

15. It is thus clear that the Supreme Court has clearly held that the proper procedure which is to be adopted by the Collector in case of dispute is that such a dispute is not to be decided by the Land Acquisition Officer under the Act and the procedure is that the Collector has to necessarily deposit the amount of compensation under Section 31 of the Act into the Court and he has to make a reference to the Court under Section 30 of the Act to decide the dispute between the contesting Claimants. In my opinion, the ratio of the Judgment in the case of Arulmighu (supra), is squarely applicable to the facts of this case and completely covers the controversy. It is thus clear that the action of the Collector to refuse to make the reference under Section 30 is clearly unsustainable and contrary to the law laid down by the Supreme Court. The Writ Petition will have to be allowed with a direction that the Respondent Nos.5 to 9 shall deposit 50% of the amount of compensation with the Collector, who shall deposit the same in the Court which shall remain invested. This direction will apply only in respect of the disputed amount of compensation i.e. 50% of the total amount of compensation and will not apply in respect of the remaining 50% of the amount. Once the reference is made by the Collector, the reference will have to be decided by the Civil Court along with the Civil Suit filed by the Petitioner so as to ensuring that the contradictory Judgments and Orders are not passed.

16. Hence, I pass the following order:-

(i) The impugned Judgment and Order dated 3rd May, 2011 passed by the Deputy Collector and SLAO-1, Solapur in Application dated 11th April, 2011 filed by the Petitioner under Section 30 of the Land Acquisition Act, 1849 being Exhibit D to this Writ Petition thereby declining to make reference under Section 30 of the Act, is quashed and set aside.

(ii) The Deputy Collector and SLAO-1, Solapur is directed to make the reference of the dispute regarding 50% of the compensation between the Petitioner and Respondent Nos.5 to 9 under Section 30 of the said Act of 1894. Reference shall be made on or before 30th April, 2012.

(iii) The said reference shall be heard and decided with RCS No.880 of 2008 which is already filed by the Petitioner and is pending in the Civil Court at Solapur.

(iv) The Respondent Nos.5 to 9 shall deposit 50% of amount of compensation within one month from today with the Collector who shall forthwith deposit the same in the Court to which the reference is made. The Court shall immediately invest the said amount in a Fixed Deposit in the Nationalized Bank till the decision of the reference under Section 30 and the suit. It is clarified that rights and contentions of the Petitioner and Respondent Nos.5 to 9 regarding entitlement of the Petitioner to get the share in the compensation are kept open to be decided by the Civil/ Reference Court.

(v) The suit and the reference shall be decided expeditiously and in any case on or before 31st March, 2013.

(vi) Rule made absolute in the aforesaid terms with no order as to costs.

Ordered accordingly.