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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 286 OF 2011
Kakaji S/o Appa Bagal (died LR’s)
Versus
1. The State of Maharashtra
PRONOUNCED ON : 23/07/2013
. Rule. Rule made returnable forthwith. By
consent of the parties, heard finally.
2. This Civil Revision Application takes
exception to the judgment and order 09092011
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
22102010 in file NO. 98/LNQ/CR1 and same has
been published in Maharashtra Government Gazette
dated 03062010 on page No. 1115 to 1118.
4. The revision applicants submit that, the
SubDivisional Officer / Land Acquisition Officer,
Aurangabad has declared award U/Sec. 33(2) of the
M.I.D. Act, 1961 on 24092010. 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 24092010 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 17102010 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 SubDivisional Officer and filed
documents mutation entry (ferfar), 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 SubDivisional Officer and Land
Acquisition Officer issued notice of payment of
compensation on 01072011. The service of notice
to applicants was effected on 10072011 and they
received compensation on 22072011 under protest.
The applicants came know the contents of award on
10072011. Hence, applicants filed the Reference
within limitation.
6. The SubDivisional 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 SubDivisional
Officer and Land Acquisition Officer, Aurangabad
for the said property was meager and in adequate.
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 SubDivisional
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 SubDivisional 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 SubDivisional 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
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7 CRA286.11
applicable. Hence this Civil Revision Application.
11. Learned Counsel appearing for the
applicants submits that, the SubDivisional
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
12101993. 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.
n - 22/08/2013
No. 217/1999, 218/1999, and 219/1999, while
considering the provisions of the M.I.D. Act vis
avis provisions of the Land Acquisition Act, has
taken a view that the SubDivisional 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 14011946 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 Coop. 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, 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] 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 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 pursuant 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 paragraph1 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 "Kararpatra" 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 paragraph2 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 paragraph3 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 paragraph4 it is stated that,
during life time father of the petitioners has
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16 CRA286.11
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 paragraphs5 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
paragraph8 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 paragraph9 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 nonacceptance of the award
and as such, the petitioners have no any legal
right to seek reference. In paragraphs10 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 paragraph12 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 paragraph13 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 24012010 and
order under section 33(2) in view of consent award
was passed by the Land Acquisition Officer on
24092010 and determined amount of compensation
as per agreement. It is stated that, father of the
petitioners died on 17102010 and therefore, the
petitioners are not all entitled to file reference
for the enhancement of compensation. In
paragraph14 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 paragraph15 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 paragraphs16 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 paragraphs17 to 19
more or less, same contentions which are raised
from paragraphs2 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 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 paragraph2 of
the said affidavit in reply, it is contended that,
the revision applicants have challenged the order
dated 09092011 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
Paragraph3 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 24092010. 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 paragraph4 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 24012010. 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 paragraph5
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
paragraph6 there are repetition of contentions
raised in earlier paragraphs. In paragraph7 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 09092011 and the said decision
is communicated to the petitioners. In paragraph8
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 paragraph8 of
the reply. It is further stated in paragraph8
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 paragraph8 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 paragraph10 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 ExhibitR2/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
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37 CRA286.11
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 Exhibit2/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 ;
"(३) जििनीचे िििती बाबत /वाढीव भूसंपादन िावेजा
ििळणेबाबत िोणतयाही िोटाात हरित घेणयाचा िला/आमहाला
हकि रािहलेला नाही.
(६) जििनीचा ताबा िदलयानतर शासनाची ल ं ेखी आगाऊ सिती ं
घेतलयाखेरीज िी/आमही अगर िाझे/आिचे वारस अगर
िहतसंबधीय तयात जाणार नाहीत अगर विहवाटीचा हकि सांगणार ं
नाहीत.
(७) भूिी संपादनाची िारवाई पूणा होई पययत िी/आमही
िोणतयाही पिारची हरित उपििित िरणार नाही व पूणा
झालयावरही सवा अटी िाझे/आिचे वारसावर व िहत
संबधीयावर ब ं धनिारि राहतील ं . हा िरार िी/आमही राजी
खशीन ु े हुशारीने व नशापाणी न िरता सवा अटी सिजावून
घेऊन िलहून िदला आहे."
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
CoOp. Housing vs. La.O. Huda And Anr.(supra). In
that case, Division Bench of the Andhra Pradesh
High Court in paragraph23 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 paragraph23 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 paragraph11 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 paragraphs8
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], 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 held 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.
Print Page
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 286 OF 2011
Kakaji S/o Appa Bagal (died LR’s)
Versus
1. The State of Maharashtra
PRONOUNCED ON : 23/07/2013
. Rule. Rule made returnable forthwith. By
consent of the parties, heard finally.
2. This Civil Revision Application takes
exception to the judgment and order 09092011
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
22102010 in file NO. 98/LNQ/CR1 and same has
been published in Maharashtra Government Gazette
dated 03062010 on page No. 1115 to 1118.
4. The revision applicants submit that, the
SubDivisional Officer / Land Acquisition Officer,
Aurangabad has declared award U/Sec. 33(2) of the
M.I.D. Act, 1961 on 24092010. 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 24092010 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 17102010 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 SubDivisional Officer and filed
documents mutation entry (ferfar), 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 SubDivisional Officer and Land
Acquisition Officer issued notice of payment of
compensation on 01072011. The service of notice
to applicants was effected on 10072011 and they
received compensation on 22072011 under protest.
The applicants came know the contents of award on
10072011. Hence, applicants filed the Reference
within limitation.
6. The SubDivisional 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 SubDivisional
Officer and Land Acquisition Officer, Aurangabad
for the said property was meager and in adequate.
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 SubDivisional
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 SubDivisional 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 SubDivisional 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
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7 CRA286.11
applicable. Hence this Civil Revision Application.
11. Learned Counsel appearing for the
applicants submits that, the SubDivisional
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
12101993. 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.
n - 22/08/2013
No. 217/1999, 218/1999, and 219/1999, while
considering the provisions of the M.I.D. Act vis
avis provisions of the Land Acquisition Act, has
taken a view that the SubDivisional 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 14011946 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 Coop. 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, 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] 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 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 pursuant 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 paragraph1 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 "Kararpatra" 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 paragraph2 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 paragraph3 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 paragraph4 it is stated that,
during life time father of the petitioners has
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16 CRA286.11
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 paragraphs5 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
paragraph8 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 paragraph9 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 nonacceptance of the award
and as such, the petitioners have no any legal
right to seek reference. In paragraphs10 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 paragraph12 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 paragraph13 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 24012010 and
order under section 33(2) in view of consent award
was passed by the Land Acquisition Officer on
24092010 and determined amount of compensation
as per agreement. It is stated that, father of the
petitioners died on 17102010 and therefore, the
petitioners are not all entitled to file reference
for the enhancement of compensation. In
paragraph14 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 paragraph15 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 paragraphs16 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 paragraphs17 to 19
more or less, same contentions which are raised
from paragraphs2 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 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 paragraph2 of
the said affidavit in reply, it is contended that,
the revision applicants have challenged the order
dated 09092011 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
Paragraph3 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 24092010. 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 paragraph4 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 24012010. 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 paragraph5
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
paragraph6 there are repetition of contentions
raised in earlier paragraphs. In paragraph7 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 09092011 and the said decision
is communicated to the petitioners. In paragraph8
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 paragraph8 of
the reply. It is further stated in paragraph8
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 paragraph8 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 paragraph10 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 ExhibitR2/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
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37 CRA286.11
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 Exhibit2/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 ;
"(३) जििनीचे िििती बाबत /वाढीव भूसंपादन िावेजा
ििळणेबाबत िोणतयाही िोटाात हरित घेणयाचा िला/आमहाला
हकि रािहलेला नाही.
(६) जििनीचा ताबा िदलयानतर शासनाची ल ं ेखी आगाऊ सिती ं
घेतलयाखेरीज िी/आमही अगर िाझे/आिचे वारस अगर
िहतसंबधीय तयात जाणार नाहीत अगर विहवाटीचा हकि सांगणार ं
नाहीत.
(७) भूिी संपादनाची िारवाई पूणा होई पययत िी/आमही
िोणतयाही पिारची हरित उपििित िरणार नाही व पूणा
झालयावरही सवा अटी िाझे/आिचे वारसावर व िहत
संबधीयावर ब ं धनिारि राहतील ं . हा िरार िी/आमही राजी
खशीन ु े हुशारीने व नशापाणी न िरता सवा अटी सिजावून
घेऊन िलहून िदला आहे."
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
CoOp. Housing vs. La.O. Huda And Anr.(supra). In
that case, Division Bench of the Andhra Pradesh
High Court in paragraph23 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 paragraph23 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 paragraph11 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 paragraphs8
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], 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 held 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.
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