Civil Revision Application No. 286 of 2011

23rd July, 2013

Petitioner Counsel: Mr. V.D. Salunke
Respondent Counsel: Mr. V.H. Dighe,Mr. S.S. Dande

Cases Cited:
Balbhim Namdeo Jadhav & another Vs. State of Maharashtra & Ors., C.R.A. Nos. 217/1999, 218/1999 and 219/1999 [Para 11,29]
M. Samiullah Vs. Collector of Aligarh, (1946) 48 BOMLR 439 [Para 12]
Guddi Mallkapur Co-op. Housing Vs. La.O., Huda and another, 2007 (1) ALD 339 [Para 12,28]
Steel Authority of India Ltd. Vs. S.U.T.N.I. Sangam & Ors., 2009(5) ALL MR 492 (S.C.) =2010 AIR (SC) 112 [Para 12]
Jaysukh Raghla Patel Vs. Land Acquisition Officer, 2012(7) ALL MR 625 =2012 (6) Mh.L.J. 560 [Para 12]
Gorakh Sripati Mahingade & Ors. Vs. District Collector & Ors., 2009 BCI 260 [Para 12]
Ambya Kalya Mhatre (d) through legal heirs & Ors. Vs. State of Maharashtra, 2011(6) ALL MR 974 (S.C.) =2011 (6) Bom. C.R. 645 [Para 12]
Mohammed Hasnuddin Vs. State of Maharashtra, 1979 (2) SCC 572 [Para 12]
Baliram s/o. Ramji Ghate Vs. State of Maharashtra and others, 2010(6) ALL MR 497 =2010 (5) Mh.L.J. 465 [Para 19]
State of Gujrat and others Vs. Daya Shamji Bhai and ors., 1995(5) SCC 746 [Para 20,30,31]
Ganpat Balaji Parate Vs. State of Maharashtra and others, 1991(2) Mh.L.J. 1515 [Para 21]
Thakubai w/o. Piraji Pawar Vs. State of Maharashtra and others, Writ Petition No. 646/1994, Dt.6/8/2010 [Para 21]
State of Karnataka Vs. Sangappa Dyavappa Biradar, 2005(5) ALL MR 495 (S.C.) =2005(4) SCC 264 [Para 31]
Abdul Aziz Abdul Razak and another Vs. Municipal Corporation of Greater Bombay and another, 1996 SC 1350 [Para 32]
Sonda Sura Bharwad Vs. Deputy Collector, Land Acquisition, 2005 LAC 560 (Guj.) [Para 32]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. By consent of the parties, heard finally.

2. This Civil Revision Application takes exception to the judgment and order 09-09-2011 passed by the Land Acquisition Officer, Aurangabad, by which the Land Reference No. 2011/Land/Claim/WS for enhancement of compensation filed by the petitioners is refused to be referred to the competent Court.

3. The back grounds facts leading to file the present Civil Revision Application as disclosed in the Civil Revision Application are as under :

It is the case of the applicants that, they are owners of the land Gut No. 26 admeasuring 2H., 10 R situated at Village Ladgaon, Taluka and Dist. Aurangabad. The respondent No. 1 has acquired above mentioned land for the benefit of respondent No. 2, for the Shendra 5 Star Industrial area at Ladgaon, Dist. Aurangabad. For said purpose, the notification u/Sec. 32(2) of the Maharashtra Industrial Development Act, 1961 [in short "M.I.D. Act, 1961"] has been issued on 22-10-2010 in file NO. 98/LNQ/CR-1 and same has been published in Maharashtra Government Gazette dated 03-06-2010 on page No. 1115 to 1118.

4. The revision applicants submit that, the Sub-Divisional Officer / Land Acquisition Officer, Aurangabad has declared award U/Sec. 33(2) of the M.I.D. Act, 1961 on 24-09-2010. The applicants were not present nor represented at the time of declaration of award. The notice u/Sec. 33(2) of the said Act was issued on 24-09-2010 in the name of deceased father of the applicants namely Kakaji Appa Bagal. The deceased Kakaji Appa Bagal was suffering from Cancer at the time of issuance of notice and died on 17-10-2010 at Village Ladgaon. After the death of Kakaji, applicants approached concerned Talathi for sanction of mutation entry in their name. Thereafter, the applicants approached to the Sub-Divisional Officer and filed documents mutation entry (fer-far), 7/12 extract, affidavits of petitioners to delete area of plots sold by deceased and affidavits of coshares for no objection for payment of applicants etc.

5. The Sub-Divisional Officer and Land Acquisition Officer issued notice of payment of compensation on 01-07-2011. The service of notice to applicants was effected on 10-07-2011 and they received compensation on 22-07-2011 under protest. The applicants came know the contents of award on 10-07-2011. Hence, applicants filed the Reference within limitation.

6. The Sub-Divisional Officer and Land Acquisition Officer, Aurangabad awarded compensation under the said award to the tune of Rs. 45,40,465/- for the acquired land to the extent of 2 H. 10 R. land.

7. It is the case of the applicants that, the applicants accepted the award under protest and without prejudice to their right to claim enhanced compensation at the market rate. Accordingly, after declaration of award they have filed reference within limitation.

8. It is the case of the applicants that, the compensation awarded by the Sub-Divisional Officer and Land Acquisition Officer, Aurangabad for the said property was meager and inadequate. The applicants should have received compensation for land to the tune of Rs. 1,31,25,000/- plus solatium and component.

9. That, the applicants are not satisfied with the said award passed by the Sub-Divisional officer and Land Acquisition Officer, Aurangabad. But by way of present Civil Revision Application, the applicants are seeking directions to the Sub-Divisional Officer and Land Acquisition Officer, Aurangabad to refer the reference to the competent Court for determination of enhanced compensation of the acquired property. Accordingly, the reference was filed before Sub-Divisional Officer and Land Acquisition Officer, Aurangabad claiming compensation of Rs. 85,84,555/- along with 30% solatium 12% component and 9% interest for first year and thereafter 15% till the date of realization of entire amount. The applicants submit that, after filing of the reference it was registered as Land Acquisition Reference No. Nil/2011.

10. The Sub-Divisional Officer and Land Acquisition Officer, Aurangabad by impugned order has refused to refer the reference of the applicants to the Court holding that, the claimants father has given their consent for negotiated price of acquired land and, therefore, Section 34(1) of the M.I.D. Act, 1961 read with Section 18 of the Land Acquisition is not applicable. Hence this Civil Revision Application.

11. Learned Counsel appearing for the applicants submits that, the Sub-Divisional Officer has no jurisdiction to decide the application and reject the same. The Sub Divisional Officer has to refer the matter to the competent Court of law, who can consider, whether applicants are entitled for enhancement of compensation. It is submitted that the Sub Divisional Officer did not take into consideration several judgments relied upon by the applicants in support of their case. It is further submitted that in view of the Government Resolution dated 12101993, the agreement executed by the concerned authority is not sustainable. It is submitted that, in view of the said Government Resolution, procedure is prescribed and authorities are designated who can execute the agreement. It is submitted that, in the facts of the present case, the authority who has executed an agreement with the applicants was not competent in view of the Government Resolution dated 12-10-1993. It is submitted that the reference filed by the applicants is well within the time. There is no dispute about the fact that, the said reference is filed within limitation. It is submitted that, while passing award the Collector functions in his administrative capacity and, therefore, he has to make the reference to the Court and he has no authority to reject the reference. It is further submitted that, whether the agreement executed between the applicants and the respondent-authority is valid or not can be gone into only by the competent Court. It is submitted that it is the contention of the applicants that the said agreement was not valid and, therefore, in the application applicants are disputing agreement itself and therefore, the Collector ought to have referred the reference to the competent Court for proper adjudication in accordance with law. It is submitted that the High Court in the case of Balbhim Namdeo Jadhav & another Vs. State of Maharashtra & Ors, in C.R.A. No. 217/1999, 218/1999, and 219/1999, while considering the provisions of the M.I.D. Act vis-a-vis provisions of the Land Acquisition Act, has taken a view that the Sub-Divisional Officer and Land Acquisition Officer cannot be termed to be a person to be deputed or representing the Government for settling the price and, therefore, the award or the amount paid is nothing but an offer made by the acquiring body to the land holder. It is submitted that this Court in the said Civil Revision Applications, in its judgment in para No. 11 held that, on perusal of Sections 32 to 34 of the M.I.D. Act, there is no bar to refer the matter to the Court. It is submitted that the provisions of Sections 32 to 34 of the M.I.D. Act, 1961 or Section 18 of the Land Acquisition Act does not specify or bar, to refer the reference to Civil Court, as rightly held by this Court in the decision in aforesaid Civil Revision Applications. It is submitted that, in the aforesaid case, this Court has taken a view that, rejection of the Reference by the officer would amount to exceeding the jurisdiction. Therefore, according to the learned counsel appearing for the applicants, in the instant case, reference should not have been rejected by the concerned authority, and rather it should have been referred to the competent Court for further adjudication.

12. It is submitted that this Court in the case of M. Samiullah Vs. Collector of Aligarh, [(1946) 48 BOMLR 439] on 14-01-1946 in para No. 9 has taken a view that District Court can consider market value of the land by way of appreciating the evidence and considering the saleinstances of neighboring persons. However, the Land Acquisition Officer cannot undertake the same exercise like the District Court. The learned counsel invited my attention to the judgment of A.P. High Court in the case of Guddi Mallkapur Co-op. Housing Vs. La.O., Huda and another, reported in 2007 (1) ALD 339, and submitted that even if the Award is passed as per the agreement entered into between the parties, it is for the Civil Court to take note of the agreement while determining the market value, if any, but the respondents cannot refuse the request of the petitioners to refer the matter to the Civil Court.

The learned counsel for the applicants also invited my attention to the judgment of Supreme Court in the case of Steel Authority of India Ltd. Vs. S.U.T.N.I. Sangam & Ors; reported in 2010 AIR (SC) 112 : [2009(5) ALL MR 492 (S.C.)], and in particular para No. 30 thereof, in which it is held that, the proceeding before the Land Acquisition Collector is of an administrative nature and not of a judicial or quasi judicial character. Therefore, relying on para No. 30 of the said judgment, the learned counsel appearing for the applicants submitted that, the process under the Land Acquisition, Collector has to perform role of an administrative nature and not of a judicial or quasi judicial character and, therefore, in the facts of the present case, Sub Divisional Officer should not have rejected the reference, since he was preforming the administrative job. The learned counsel appearing for the applicants further invited my attention to para No. 83 of the said judgment and submitted that, keeping in view the object and purport the statute seeks to achieve, a Collector being a statutory authority and having the jurisdiction to make a reference can make a reference and the Land Acquisition Officer shall bound to refer the reference to the Civil Court. The learned counsel appearing for the applicant further invited my attention to the reported judgment of this Court in the case of Jaysukh Raghla Patel V. Land Acquisition Officer; reported in [2012 (6) Mh.L.J. 560] : [2012(7) ALL MR 625] and in particular para Nos. 5 and 6 thereof, and submitted that, even though the award is accepted without protest, the reference is maintainable. The learned counsel appearing for the applicants further invited my attention to the exposition of this Court in the case of Gorakh Sripati Mahingade & Ors. V. District Collector & Ors; reported in 2009 BCI 260, and in particular para No. 9 thereof, and submitted that, by filing of an application for reference under Section 18 of Land Acquisition Act, would itself manifest applicant's intention and therefore, protest against award of Collector is implied notwithstanding acceptance of compensation. Thus, reference could not have been rejected on the ground that amount of compensation was not accepted under protest. The learned counsel for the applicants further pressed into service exposition of the Supreme Court in the case of Ambya Kalya Mhatre (d) through legal heirs & Ors. Vs. State of Maharashtra; reported in 2011 (6) Bom. C.R. 645 : [2011(6) ALL MR 974 (S.C.)] and in particular para Nos. 13, 16, 17 and 18 thereof. The learned counsel further pressed into service exposition of the Supreme Court in the case of Mohammed Hasnuddin Vs. State of Maharashtra; reported in 1979 (2) SCC 572, and in particular head note (1) thereof. The learned counsel appearing for the applicants submits that, in view of the authoritative pronouncements of this Court and the Supreme Court referred above, reference filed by the applicants herein, ought to have been referred to the Civil Court by the concerned authority, as Sub Divisional Officer has no authority to reject the same.

13. In pursuance to the notice issued in this Civil Revision Application, the respondent No. 2 Mr. Gangadhar s/o Laxmanrao Giri, working as Area Manager, M.I.D.C. Aurangabad has filed detailed affidavit in reply for the limited purpose of opposing admission of the Civil Revision Application with further liberty to file detailed affidavit as and when necessary.

It is stated in paragraph-1 of the affidavit in reply that, at the outset, the Civil Revision Application is not maintainable as the land of the father of the petitioners were acquired by way of negotiations and the father of the petitioners has executed "Karar-patra" to that effect and as per the negotiations the amount was already determined and paid to the petitioners. Not only this, but the award/order passed by the Special Land Acquisition Officer under section 33(2) of the M.I.D. Act, 1961 clearly shows that all the benefits agreed for, has been paid to the petitioners being the legal heirs of the deceased.

14. In paragraph-2 it is stated that, since the father of the petitioners has executed agreement and after death of the father of the petitioners, the petitioners have accepted compensation for acquired land and considering this, the petitioners have no locus to file proceedings for enhancement of compensation. It is further stated in paragraph-3 that, the petitioners have accepted amount of compensation without any demur and objections and therefore, it is not open for them to challenge the order of the Collector refusing to send reference for further adjudication. In paragraph-4 it is stated that, during life time father of the petitioners has agreed for rate determined and also executed agreement and therefore, the petitioners have no locus to challenge the order of the Collector. It is further stated that, the petitioners were represented before the Collector through Advocate and in view of the agreement entered between the father of the petitioners and the respondents,it is not open for the petitioners to pray for enhancement in compensation. In paragraphs-5 and 6 of the affidavit in reply it is stated that, the amount accepted by the petitioners is the amount determined after negotiation with the father of the petitioners who was consenting party to the agreement. It is further contended that, after issuance of notice under section 32(2) of the M.I.D. Act, 1961 father of the petitioners has not raised any objection in writing before the authority concerned. It is stated that, answering respondent has acquired near about 246.38 Hector of land from village Ladgaon for the purpose of industrial development. All these lands were acquired by way of negotiations and except petitioners all other land owners have accepted that, the lands are acquired by way of negotiations and they have accepted the amount of compensation as has been determined having negotiations with them. It is further stated in paragraph-8 that, all the land owners including father of the petitioners after having negotiations with them agreed for the rate determined for the acquisition of their land and accordingly, agreement was executed by all person who have consented for the acquisition and therefore, award/order under section 32(2) of the M.I.D. Act, 1961 was declared and amount of compensation was disbursed by the respondent No. 1 to all land owners including petitioners and same has been accepted by the petitioners and they have accepted the said amount without any demur and objections. It is further stated in paragraph-9 of the affidavit in reply that, right and entitlement to seek reference would arise only if the amount of compensation was received under protest, that too in writing which would manifest the intention of the landowner of non-acceptance of the award and as such, the petitioners have no any legal right to seek reference. In paragraphs-10 and 11 it is stated that, section 33(2) empowers parties to enter into agreement and award/order in terms thereof is permissible on making such order/award, the payment was made and therefore, land owner would not be entitled to seek any reference for enhancement in compensation. In paragraph-12 it is stated that, once said award is accepted no legal right in him would survive for claiming a reference to the civil Court. In paragraph-13 it is stated that, since declaration of ChapterVI till the passing of award/order under section 32(2) the father of the petitioners was alive and also accepted the notice as issued under the provisions of M.I.D. Act, 1961. Father of the petitioners executed agreement on 24-01-2010 and order under section 33(2) in view of consent award was passed by the Land Acquisition Officer on 24-09-2010 and determined amount of compensation as per agreement. It is stated that, father of the petitioners died on 17-10-2010 and therefore, the petitioners are not all entitled to file reference for the enhancement of compensation. In paragraph-14 it is stated that, copies of the C.C. Vouchers accepting the amount of compensation by the petitioners and also application submitted by the petitioners are part of the original record maintained by the respondent No.2 and the respondent No.2 has placed on record copies of the said vouchers alongwith reply. In paragraph-15 it is stated that, in similar set of facts writ petition filed by other owners has been rejected by the High Court. Copy of the order in Writ Petition NO. 3352 of 2007 is placed on record with the reply. In paragraphs-16 and 17 it is stated that, in revisional jurisdiction it is not open for this Court to substitute award passed by the Land Acquisition Officer. From paragraphs-17 to 19 more or less, same contentions which are raised from paragraphs-2 to 16 have been repeated.

15. The learned counsel appearing for the respondent No. 2 made following submissions;

The learned counsel for respondent No.2 submitted that the revision application is not maintainable, as the land of the father of the applicants were acquired by way of negotiations and the father of the applicants has executed "Karar Patra" to that effect and as per the negotiations the amount was already determined and paid to the applicants. He further submitted that the award passed by the Special Land Acquisition Officer is under section 33(2) of the MID Act, 1961 and not under Section 33(3) of the MID Act and therefore, as per the provisions of MID Act, the reference under Section 34 is not at all maintainable.

16. It is submitted that the applicants have no locus standi to file present application, as the father of the applicants had already executed agreement and after his death, the applicants have accepted the compensation for the acquisition of land without any demur and objection which is a condition precedent for filing reference. Moreover, the applicants have no legal right to challenge the order of Collector as during the lifetime, the father of the applicants has agreed for the rate determined and also executed the agreement to that effect. It is submitted that the State Government has acquired near about 246.38 hectares of land from village Ladgaon for the purpose of Industrial development. All these lands were acquired by way of negotiations and by passing consent award under Section 33(2) of the MID Act 1961.

It is further submitted that as decided in the meeting of negotiations, all land owners, including the father of the applicants after having negotiations with them agreed for the rates determined for the acquisition of their lands and accordingly, agreement was executed by all the persons, who have consented for the acquisition, and therefore, the award under Section 33(2) of the MID Act were declared and the amount of compensation was distributed by respondent No.1 to all land owners, including the applicants and they have accepted the said amount without any demur and objections.

17. It is submitted that the right and entitlement to seek reference would arise only when the amount of compensation was received under protest that too, in writing, which would manifest the intention of the landowner of nonacceptance of the award. Since in the present case, the award is consent award there is bar to file a reference itself. It is submitted that the applicants have no any legal right to seek the reference. In view of this, this Hon'ble court is devoid of jurisdiction to go into the adequacy of compensation awarded by the SLAO or prevailing market value as on the date of notification and to determine the compensation and also allowing the applicants to file the reference. It is submitted that the award passed is the consent award and after having negotiation with the father of the applicants, the rate of compensation has been determined and as such, in view of the law laid down by the Apex Court there is bar to file reference.

It is further submitted that Section 33(2) of the MID Act, empowers the parties to enter into an agreement and an award in terms thereof is permissible. Therefore, on making such an award under Section 33(2) the payment was made as per Section 36 (1) of the MID Act, 1961. Therefore, the land owner would not be entitle to seek any reference for enhancement. In the present case, the father of the applicants, when he was alive, has already executed an agreement and as per the terms and conditions of the said agreement it is binding on the legal heirs i.e. the applicants.

18. It is further submitted that since the date of declaration of Chapter VI till the passing of the award under section 33(2) of the MID Act, the father of the applicants was alive and also accepted the notices, issued under the provisions of MID Act, 1961. It is further submitted that the father of the applicants executed the agreement on 24.1.2010 and the order under section 33(2) in view of the consent award was passed by the Land Acquisition Officer on 24.9.2010 and determined the amount of compensation as per the agreement. The father of the applicants died on 17.10.2010 and therefore, the applicants are not at all entitled to file the reference for the enhancement of compensation.

It is further submitted that in the similar facts and circumstances, the land owners, whose lands were acquired by way of negotiations and after having accepted the amount of compensation, as determined, have filed references before the Land Acquisition Officer and as the LAO has refused to sent it for the reference court for adjudication they have filed writ petition before this Hon'ble Court and also contended that they have not signed the agreements. The Division Bench of this Hon'ble court after hearing all the parties rejected the said writ petition.

19. It is submitted that the applicants have an alternate remedy to challenge the consent award in an appropriate proceeding by approaching court of law having jurisdiction in relation thereto and therefore, the interference of this Hon'ble court would amount to substitution of award passed by the Land Acquisition Officer while exercising the revisional jurisdiction under section 115 of the Code of Civil Procedure. It is submitted that so far as the reliance placed by the applicants in respect of the judgment and order passed in CRA, it is most respectfully submitted that the facts involved in the said revision application and in the present revision are totally different. In the present case, when the father of the applicants was alive he has not disputed the award and consented for the acquisition and also determination of the market value. Moreover, in view of the subsequent law laid down by the Hon'ble Apex Court the observations made in the said judgment and order at present is not a good law and as such the same cannot be relied upon.

It is submitted that so far as the reliance placed by the applicants on the judgment of Full Bench of this Court in the case of Baliram s/o Ramji Ghate vs. State of Maharashtra and others reported in 2010 (5) Mh.L.J. 465 : [2010(6) ALL MR 497] the facts involved in that case and present case are totally different. In the case relied upon, the same was of giving an undertaking about the non filing of reference, however, in the present case the same is as per the provisions of MID Act, which specifically provides for passing of consent award when the amount is determined by way of negotiations, and therefore, the ratio laid down under the relied judgment cannot be made applicable to the present case.

20. The respondent No. 3 Sub Divisional Officer cum Land Acquisition Officer, Aurangabad has filed affidavit in reply. In paragraph-2 of the said affidavit in reply, it is contended that, the revision applicants have challenged the order dated 09-09-2011 passed by the Sub Divisional Officer, Aurangabad thereby rejecting the claim of the petitioners on the ground that, claimant's father has given consent for negotiations of acquisition of the land for M.I.D.C. It is stated that, the provisions of section 34(1) of the M.I.D. Act, 1961 read with section 18 of the Land Acquisition Act, 1894 are not applicable. In Paragraph-3 it is stated that, as the petitioner's father was alive at the time of acquisition proceedings started and he was served the notice under section 32(2) and 32(3) of the M.I.D. Act, 1961. After service of the said notices, the petitioner's father has not submitted any claim for enhanced compensation. After expiry of notice period under section 32(2), the negotiation price of the acquired land was fixed. Award was declared on 24-09-2010. At the time of declaration of award, the petitioner's father was alive and hence, the contention of the petitioners that, they are entitled for enhanced compensation cannot be accepted.

It is further stated in paragraph-4 that, father of the petitioners namely Kakaji Appa Bagal who was alive at the time of negotiations for acquisition of land and he has executed agreement on 24-01-2010. As per condition Nos. 2 and 3 in the said agreement, the petitioners are not entitled to approach any Court of law for enhancement of compensation as well as to claim 30% solatium and 12% special component as well as interest thereto. It is stated in paragraph-5 that,the land acquisition proceedings have been completed and rate of land for compensation was fixed with negotiations of the petitioner's and hence, the question to accept Reference for enhancement of compensation would not arise. In paragraph-6 there are repetition of contentions raised in earlier paragraphs. In paragraph-7 it is stated that, land reference under section 34(1) of the M.I.D. Act, 1961 read with section 18 of the Land Acquisition Act, is not maintainable and same was rejected on 09-09-2011 and the said decision is communicated to the petitioners. In paragraph-8 it is stated that, the claim of the petitioners is contrary to the provisions of the section 33(2) of the M.I.D. Act, 1961. For ready reference the provisions of Section 11(2) of the Land Acquisition Act have been quoted in paragraph-8 of the reply. It is further stated in paragraph-8 that, award passed on consent of the parties and therefore, is not amenable to the reference under section 18 of the Land Acquisition Act. It is further stated in paragraph-8 that, the Hon'ble Supreme Court in the case of State of Gujrat and others vs. Daya Shamji Bhai and others [1995(5) SCC 746] has held that, the claimants agreeing to accept compensation determined by the Land Acquisition Officer and 25% more in addition thereto and also agreeing to forego their right to seek reference, in that case contract is conclusive and final and claimants are not entitled to seek reference to the Civil Court and as such, agreement is not required to be registered. Therefore, by way of filing affidavit in reply, the respondent No. 3 has prayed for rejection of the Civil Revision Application.

21. I have given careful consideration to the submissions of the learned Counsel appearing for the parties, with their able assistance perused the entire material placed on record, provisions of the M.I.D. Act, 1961 with Rules and reported judgments of the Supreme Court and this Court cited across the Bar. It is the contention of the Counsel appearing for the applicants that, Sub Divisional Officer and Land Acquisition Officer, Aurangabad i.e. respondent No.3 herein, was not empowered/competent to deal with the land acquisition proceedings. It is the contention of the learned Counsel appearing for the revision applicants that, unless there is a specific delegation by the State Government to any other officer, only Collector is competent to initiate land acquisition proceedings and pass award. In this respect, it would be worthwhile to make reference to the judgment of the Division Bench of this Court in the case of Ganpat Balaji Parate vs. State of Maharashtra and others [1991(2) Mh.L.J. 1515]. The Division Bench of this Court made reference to the provisions of section 32 of the M.I.D. Act, 1961 and in paragraph-10 held that, section 42 permits delegation of powers and functions of the State Government under Chapter VI of the Act to any officer by rules made in this behalf. Section 63 is a Rule Making Power. Sub clause (h) of sub section(2) of section 63 deals with the delegation of powers under chapter VI. Under Rule 28, the power of the State under section 32 is delegated to certain officers. In the facts of the said case, it was the contention before the Division Bench that, power under Chapter VI pertains to judicial function and therefore, it cannot in law be delegated, however said contention was not accepted by the Division Bench of this Court. Yet in another judgment, this Court in the case of Thakubai w/o Piraji Pawar vs. State of Maharashtra and others in Writ Petition No. 646 of 1994 and other connected writ petitions thereof, (decided on 6th August, 2010) relying upon earlier judgment of the Division Bench in the case of Ganpat Balaji Parate (supra), has taken a view that, delegation of power is permissible and Sub Divisional Officer was rightly appointed and no illegality can be found in the procedure adopted by the respondent authorities. The Counsel appearing for the respondent M.I.D.C. has brought to the notice of this Court that, after following procedure, the Sub Divisional Officer was delegated power to execute agreement and also to deal with land acquisition proceedings. Therefore, there is no force in the contention of the Counsel appearing for the revision applicants that, the Sub Divisional Officer was not empowered to enter into agreement between the parties and also to deal with the land acquisition proceedings.

22. It is the submission of the learned Counsel appearing for the revision applicants that, agreement entered between the father of the applicants and the respondent Nos. 2and 3 is not acceptable to the applicants. The learned Counsel submits that, such agreement is not agreement in the eyes of law. Upon perusal of the copy of the agreement, there are many irregularities and therefore, said agreement is not acceptable to the applicants. In this respect, it can safely be concluded that, in revisional jurisdiction it is not possible for this Court to enter into controversy whether agreement entered between the father i.e. Kakaji Appa Bagal, by the respondent Nos. 2 and 3 is in accordance with provisions of Contract Act. If the applicants are aggrieved, they can seek recourse to appropriate remedy as available in law to challenge the said agreement. In the first place, the contention of the applicants appears to be that, the agreement entered between Kakaji Appa Bagal i.e. father of the revision applicants is not valid and secondly, such agreement would not bind the applicants. As observed earlier, it is open for the applicants by way of taking appropriate remedy to seek declaration that, such agreement is not valid and not binding upon the applicants or such agreement was not executed at all by the father of the applicants.

23. It is the contention of the learned Counsel appearing for the revision applicants that, the authority i.e. Sub Divisional Officer and Land Acquisition Officer should not have refused to refer the reference to the Civil Court. Said contention of the revision applicants is required to be appreciated in the facts of the present case. The father of the revision applicants namely Kakaji Appa Bagal entered into agreement with the respondent No. 3 who acted as an Officer for the Department of Industries, Energy and Labour, Government of Maharashtra. The respondent No. 2 has filed affidavit in reply and alongwith the affidavit in reply Exhibit-R2/ A has been placed on record. Said document is an agreement between the Sub-Divisional Officer and the Land Acquisition Officer, Aurangabad on behalf of the Department of Industries, Energy and Labour, Government of Maharashtra. The name of the father of the revision applicants namely Kakaji Appa Bagal appears first in row in the said agreement. The applicants may have grievance about the execution of such agreement or terms of the said agreement or validity of the said agreement, however, the fact remains that, Kakaji Appa Bagal was party to the said agreement. It is the contention of the respondents that, though notice under sub section (2) of Section 11 of the Land Acquisition Act, was issued to the father of the applicants, however, father of the applicants did not protest and accepted the amount of compensation as determined by the respondent No. 3. The contention of the applicants that, the respondent No. 3 should not have refused to refer the reference to the competent Court is concerned, it is necessary to reproduce herein below the relevant provisions of sub section (2) of Section 33 of the M.I.D. Act, 1961, which reads thus;

"33(2) Where the amount of compensation has been determined by agreement between the State Government and the person to be compensated, it shall be determined in accordance with such agreement ."

24. Upon careful perusal of the provisions of sub section (2) of Section 33 of the M.I.D. Act, 1961, it is abundantly clear that, where amount of compensation has been determined by agreement between the State Government and the person to be compensated, it shall be determined in accordance with such agreement. The question of referring to the Collector would arise in case there is no such agreement reached between the parties and in such cases, the provisions of sub section (3) of Section 33 of the M.I.D. Act, 1961 would come into picture. However, in the facts of the present case, father of the applicants has entered into agreement with the respondents and therefore, invoking of provisions of sub section (3) of Section 33 of the M.I.D. Act, 1961 would not arise. At this juncture, it would be apposite to reproduce herein below the provisions of sub section (3) of Section 33 of the M.I.D. Act, 1961, which reads thus :

"33 (3) Where no such agreement can be reached, the State Government shall refer the case to the Collector for determination of the amount of compensation to be paid for such acquisition as also the person or persons to whom such compensation shall be paid:

Provided that, no compensation exceeding such amount as the State Government may by general order specify, to be paid for such acquisition shall be determined by the Collector without the previous approval of the State Government or such officer as the State Government may appoint in this behalf."

It follows from careful reading of sub section (3) of Section 33 of the M.I.D. Act, 1961 that, if there is no agreement between the State Government and the person to be compensated, the compensation shall be determined by the Collector in accordance with the said provision. Sub section (4) of Section 33 of the M.I.D. Act, 1961 further contemplates that, before finally determining the amount of compensation, the Collector shall give an opportunity to every person to be compensated to state his case as to the amount of compensation. Therefore, in the facts of the present case since there is an agreement and it is the case of the respondents that, such agreement has been entered between father of the revision applicants and the respondents with consent, and award is 'consent Award', the question of referring the reference by the respondent No. 3 to the competent Court does not arise.

25. Upon reading the agreement at Exhibit-2/ A attached to the affidavit in reply filed by the respondent No. 2, it is evident that, certain terms/conditions are mentioned therein. It appears that, the rate agreed per acre was determined Rs.8,65,000/-. It is also mentioned in Condition No. 2 that, the said amount of Rs. 8,65,000/- per acre is inclusive of solatium, rehabilitation grant, compensation etc. The Condition No. 3, 6 and 7 read thus ;

"(3) VÉʨÉxÉÒSÉä ÊEò¨ÉiÉÒ ¤ÉɤÉiÉ/'ÉÉføÒ'É ¦ÉÚºÉÆ{ÉÉnùxÉ ¨ÉÉ'ÉäVÉÉ Ê¨É³ýhÉä¤ÉɤÉiÉ EòÉähÉiªÉɽþÒ EòÉä]õÉÇiÉ ½þ®úEòiÉ PÉähªÉÉSÉÉ ¨É±ÉÉ/+ɨ½þɱÉÉ ½þCEò xÉɽþÒ.

(6) VÉʨÉxÉÒSÉÉ iÉɤÉÉ Ênù±ªÉÉxÉÆiÉ®ú ÉɺÉxÉÉSÉÒ ±ÉäJÉÒ +ÉMÉÉ>ð ºÉƨÉiÉÒ PÉäiɱªÉÉJÉäÊ®úVÉ ¨ÉÒ/+ɨ½þÒ +MÉ®ú ¨ÉÉZÉä/+ɨÉSÉä 'ÉÉ®úºÉ +MÉ®ú ʽþiɺÉƤÉÆvÉÒªÉ iªÉÉiÉ VÉÉhÉÉ®ú xÉɽþÒiÉ +MÉ®ú 'Éʽþ'ÉÉ]õÒSÉÉ ½þCEò ºÉÉÆMÉhÉÉ®ú xÉɽþÒiÉ.

(7) ¦ÉÚ¨ÉÒ ºÉÆ{ÉÉnùxÉÉSÉÒ EòÉ®ú'ÉÉ<Ç {ÉÚhÉÇ ½þÉä<Ç {ɪÉÈiÉ ¨ÉÒ/+ɨ½þÒ EòÉähÉiªÉɽþÒ |ÉEòÉ®úSÉÒ ½þ®úEòiÉ ={ÉκlÉiÉ EòhÉÉ®ú xÉɽþÒ 'É {ÉÚhÉÇ ZÉɱªÉÉ'É®ú½þÒ ºÉ'ÉÇ +]õÒ ¨ÉÉZÉä/+ɨÉSÉä 'ÉÉ®úºÉÉ'É®ú 'É Ê½þiÉ ºÉƤÉÆvÉÒªÉÉ'É®ú ¤ÉÆvÉxÉEòÉ®úEò ®úɽþiÉÒ±É. ½þÉ Eò®úÉ®ú ¨ÉÒ/+ɨ½þÒ ®úÉVÉÒ JÉÖÉÒxÉä ½ÖþÉÉ®úÒxÉä 'É xÉÉÉ{ÉÉhÉÒ xÉ Eò®úiÉÉ ºÉ'ÉÇ +]õÒ ºÉ¨ÉVÉÉ'ÉÚxÉ PÉä>ðxÉ Ê±É½ÚþxÉ Ênù±ÉÉ +ɽäþ."

26. Upon conjoint reading of the conditions stipulated in the agreement, it appears that, father of the applicants agreed that, in view of the agreement entered between the parties, he has no any right to approach to any Court and even his relative will not claim any right in respect of the property in question and the conditions stipulated in the agreement would even bind the legal heirs of the executant of the agreement namely Kakaji Appa Bagal (deceased).

27. If it is the contention of the applicants that, the said agreement is not valid or not binding upon them or same is obtained by fraud, in that case it is open for the applicants to take appropriate remedy for redressal of their grievance. However, it is not possible for this Court in revisional jurisdiction to go into correctness of terms of the said agreement and express opinion.

28. It is further contended by the Counsel appearing for the revision applicants that, duty performed by the Collector while dealing with the provisions of the Land Acquisition Act is of administrative nature and therefore, the Collector is bound to refer the reference to the competent Civil Court since the Civil Court can go into various aspects of the matter and even if necessary can record evidence. In support of this contention, the learned Counsel for the applicants invited attention of this Court to the various judgments including the judgment of the Andhra Pradesh High Court in the case of Guddi Malkapur Co-Op. Housing vs. La.O. Huda And Anr.(supra). In that case, Division Bench of the Andhra Pradesh High Court in paragraph-23 held that, in absence of any 'consent award', the authorities are bound to refer the matter to the Civil Court. It is true that, in paragraph-23 of the said judgment, Division Bench of the Andhra Pradesh held that, even if the award is passed as per the agreement entered into between the parties, it is for the civil Court to take note of the agreement while determining the market value, if any, but the respondents cannot refuse the request of the petitioners to refer the matter to the civil Court, unless a consent award as such is passed as envisaged under Section 11(2) of the Act. (Emphasis supplied).

29. Therefore, it follows from the said judgment of the Andhra Pradesh High Court that, in cases where there is no consent award, in that cases authorities are bound to refer the reference to the civil Court. However, it is specific case of the respondents that, father of the applicants namely Kakaji Appa Bagal has entered into agreement with the respondents, award is passed with the consent and when notice was issued to said Kakaji Appa Bagal under section 11(2) of the said Act, he did not protest and accepted the consent award. Therefore, it is not open for the applicants, who claimed to be legal representatives of the deceased Kakaji Appa Bagal to say that, said award was not 'consent award.' The learned Counsel appearing for the revision applicants also placed reliance on the unreported judgment of this Court in the case of Balbhim Namdeo Jadhav and another vs. State of Maharashtra and others in Civil Revision Application No. 217 of 1999 and other connected Civil Revision Applications thereto (decided on 18th March, 2004). It is the contention of the Counsel for the applicants that, in the said cases, this Court has considered the provisions of Sections 33 and 34 of the M.I.D. Act, 1961 and in paragraph-11 held that, there is no bar to refer the matter to the Court, in spite of the fact and even if it is termed as an agreement. However, it appears that, in the facts of that case, this Court has no occasion to consider difference between 'simple agreement' and 'consent award'. It is specific contention of the respondents that, father of the applicants namely Kakaji Appa Bagal (deceased) did not protest when notice was given under section 11(2) of the Land Acquisition Act and consented for the price determined and therefore, it was consent award. Therefore, the decision in case of Balbhim Jadhav (supra), is of no avail to the applicants.

30. The Supreme Court in the case of State of Gujrat vs. Daya Shamji Bhai [1995 (5) SCC 746] held that, if the award is passed in terms of agreement between the land owner and Special Land Acquisition Officer that the award would be made in terms of contract and that the land owner would not seek reference under section 18, in view of such compromise/agreement, the land owner would not be entitled to seek reference under Section 18 of the Land Acquisition Act. Relevant paragraphs-8 and 9 thereof reads thus:

"8. The question of awarding interest and statutory benefits arises when the civil court finds that the amount of compensation awarded to the land owners by the Collector is not adequate and the prevailing market value is higher than the market value determined by the Land Acquisition Officer under Section 23(1). For entitlement to solatium under Section 23(2), "in addition to" market value the court shall award solatium. Under Section 28, if the court gets power to award interest, when court opines that the Collector "ought to have awarded compensation in excess of the sum which the collector did award the compensation". In other words, valid reference under Section 18 confers jurisdiction on the civil court to consider whether the compensation awarded by the Collector is just and fair. Thereafter, when it finds that the Collector ought to have awarded higher compensation, the civil court gets jurisdiction to award statutory benefits on higher compensation from the date of taking possession only. In view of the specific contract made by the respondents in terms of Section 11(2), they are not entitled to seek a reference. Consequently, the civil court is devoid of jurisdiction to go into the adequacy of compensation awarded by the Collector or prevailing market value as on the date of notification under Section 4(1) to determine the compensation under Section 23(1) and to grant statutory benefits.

9. By operation of Section 11(4), the need for registration of the agreement is obviated. As seen in the contract, the respondents have forgone their right of seeking reference in lieu of 25% more than the compensation determined by the Collector under Section 11(2) of the Act. In fact, 25 per cent in addition to the market value determined by the Collector in his award under Section 11(1) had been paid as the consideration to forgo reference. Even otherwise, once an agreement was entered by the parties, the question of objection to receive compensation under protest does not arise. So, they have no right to seek a reference to the civil court under Section 18 of the Act."

31. Therefore, it follows from the authoritative pronouncement of the Supreme Court in the case of State of Gujrat (supra), if the award is consent award and if the claimant has agreed not to question the said award and even agreed that, the said amount would include interest, solatium and other statutory benefits then in that case, it is not open for the claimant to seek reference on such award.

Yet in another authoritative pronouncement of the Supreme Court in the case of State of Karnataka vs. Sangappa Dyavappa Biradar [2005(4) SCC 264] : [2005(5) ALL MR 495 (S.C.)], the Supreme Court held that, if the application is filed for enhancement of compensation, and if there is consent awards, after said consent awards were passed and if the statements are made by the respective villagers declaring that, they would not approach any Court for enhancement of compensation for any other reason, in that case award was accepted by the awardee and therefore, application under section 18 is not maintainable. It is further held that, a right of a landholder to obtain an order of reference would arise only when he has not accepted the award. Once such award is accepted, no legal right in him survives for claiming a reference to the Civil Court. An agreement between the parties as regards the value of the lands acquired by the State is binding on the parties. So long as such agreement and consequently the consent awards are not set aside in an appropriate proceeding by a court of law having jurisdiction in relation thereto, the same remain binding. It is further held that, High Court while exercising its jurisdiction under Article 226 of the Constitution of India, thus, could not have substituted the award passed by the Land Acquisition Officer. It is further held that, an award under the Act is passed either on consent of the parties or on adjudication of rival claims. For the purpose of passing a consent award, it was not necessary to comply with the provisions of Article 299 of the Constitution of India. An agreement between the parties need not furthermore be strictly in terms of a prescribed format. It is further held that, the claimants having accepted the award without any demur were estopped and precluded from maintaining an application for reference in terms of Section 18 of the Act. It is also trite that by reason of such agreement, the right to receive by way of solatium or interest etc., can be waived. Keeping in view the fact that, the condition precedent for maintaining application for reference under Section 18 is non-acceptance of the award by the awardee.

32. At the cost of repetition, it has to be observed that, in the facts of the present case, the award is consent award, father of the applicants entered into agreement with the respondents on certain conditions. One of the condition appears to be that, he will not approach the Court for enhancement of compensation for any other reason. Other terms/conditions of the agreement bind the applicants who are legal representatives of Kakaji Appa Bagal (deceased), who has entered into agreement on condition, that the said terms of the agreement will bind his legal representatives. Upon careful reading of the terms/conditions stipulated in the agreement which is placed on record, it further appears that, father of the applicants agreed that, the amount towards other statutory benefits is inclusive in the price determined towards compensation by the respondent authorities.

The Supreme Court in the case of Abdul Aziz Abdul Razak and another vs. Municipal Corporation of Greater Bombay and another [1996 SC 1350] held that, benefit of enhanced rate of interest as per amended Act cannot be allowed in view of agreement between the parties. The Land Acquisition Officer was entitled to award interest as per contract between parties. Division Bench of Gujrat High Court in the case of Sonda Sura Bharwad vs. Deputy Collector, Land Acquisition [2005 LAC 560 (Guj)] held that, award made in terms of the agreement and payment of compensation received without protest, allegation of duress and misrepresentation cannot be looked into by the High Court in exercise of writ jurisdiction. It is further hold that, it is not necessary for the Collector to held inquiry about market value when compensation is agreed upon by the parties and application filed for reference was rightly declined by the Collector.

33. The learned Counsel appearing for the revision applicants placed reliance upon authoritative pronouncement of the Supreme Court and this Court and submitted that, even though there is no protest at the time of accepting award, even then it is open for the claimants to file reference for enhancement of compensation under section 18 of the said Act. It is true that, there are judgments of the Supreme Court and this Court holding that, even though specifically there is no protest at the time of passing of award, when party files reference it impliedly means that, there is a protest by the claimants. However, the facts of the case in hand are different than cases cited by the Counsel for the applicants. In the present case, there is a 'consent award' and agreement entered between father of the applicants and the State Government stipulates certain terms and in view of agreed terms there is a 'consent award' which is accepted by the father of the applicants. As long as said agreement is intact and not interfered with or set aside by the competent Court, the terms of the said agreement will bind the parties. Therefore, appropriate course which is open to the applicants if they are so advised to challenge the said agreement before the competent Court. However, certainly the challenge to said agreement cannot be gone into in revisional jurisdiction.

34. In the light of discussion herein above, Civil Revision Application sans merit, hence rejected. Rule discharged.

It is made clear that, if the applicants at all avails remedy to challenge the agreement, if available in law, in that case observations made in this judgment would not come in the way of the applicants while prosecuting the said remedy.

Application dismissed.