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.
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5679 OF 2011
Sakhubai @ Shakuntala V
. Chopde
V/s.
National Thermal Power Corporation
& Others
CORAM: G.S.GODBOLE,J.
DATE : 22nd MARCH, 2012.
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.”
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.
The dispute involved in this Petition lies in a narrow compass
and the facts are as under:
It is an admitted position that the land in question namely –
(a)
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
(b)
Code 1966 which were decided against the Petitioner.
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 3 rd 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 29 th
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.
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:
Dr. G. H. Grant v/s. The State of Bihara
(ii) Sharda Devi v/s. State of Bihar and Anotherb
(iii) Arulmighu Lakshminarasimhaswamy v/s. Union of India and
(i)
Othersc
Sri Prasad Rao Mikkilineni and Others v/s. State of A. P
. and Othersd
(iv)
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)
a
b
c
d
e
Mahendra Prasad and etc. v/s. State of Bihar and others e
AIR 1966 SC-237
(2003) 3 SCC-128
(1996) 6 SCC-408
(2000) 9 SCC-371
AIR 2004 Patna 26
Govind Narayan Lotlikar v/s. Savitibai Raghuvira Lotlikar and
(ii)
I have carefully considered the rival submissions. The fact
6
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:
“Para18: 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
1986 Mh. L. J.-844
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.”
Para19: 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 (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:
“Para25: Keeping in view the principles laid down by this
Court in Dr. G.H. Grant's case (supra) and analyzing indepth
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.
Para26: 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 preexisting 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.
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 (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
11
the Collector.
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 (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.
In the case of Arulmighu (supra), the Supreme Court has
observed thus in paragraphs 2 and 3 as under:
“Para2: 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.
Para3: 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:
“Para4: 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.”
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
passed.
Hence, I pass the following order:
(i)
so as to ensuring that the contradictory Judgments and Orders are not
The impugned Judgment and Order dated 3rd May, 2011
passed by the Deputy Collector and SLAO1, Solapur in
ig
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 SLAO1, 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
The suit and the reference shall be decided expeditiously
(v)
be decided by the Civil/ Reference Court.
and in any case on or before 31st March, 2013.
Rule made absolute in the aforesaid terms with no order
(vi)
as to costs.
(G.S.GODBOLE,J.)
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