Section 30 of the Act deals with dispute as to apportionment and it
provides that:
When the amount of compensation has been settled under
section 11, if any dispute arises as to the apportionment of the
same or any part thereof, or as to the persons to whom the same
or any part thereof, is payable, the Collector may refer such
dispute to the decision of the Court.
21.
Admittedly, the plaintiff did not raise any issue before the Land
Acquisition Officer as regards the measurements of the land acquired or the
amount of the compensation which was paid to her or to the defendants but
accepted the award and compensation paid without any protest. When a
special statute has created a machinery for granting reliefs which are
awardable under the statute, the jurisdiction of the civil court under section 9
of the CPC cannot be invoked for the same relief. As stated by this Court in
Communidade of Bambolim V/s. Manguesh Betu Kankonkar (supra), a
civil suit for enhancement of compensation is not maintainable in case the
amount is not accepted by the party under protest and reference under Section
18 is not prayed. The second proviso to sub-section (2) of section 31 of the
Act makes it clear that if a person has received compensation without
registering his protest, he is not entitled to make an application under Section
18 and the remedy provided by the statute is barred. Needles to say the
general remedy by recourse to the Civil Court is also barred. To receive
compensation for the land compulsorily acquired is a right created by the
Land Acquisition Act and will have to be exercised by following the
procedure laid down by the statute.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 206 OF 2000
AND
CROSS OBJECTION NO. 14 OF 2001
FIRST APPEAL NO. 206 OF 2000
Mrs. Assuncena do Rego,
V/s
1. Mr. Simplicio P.C. Fernandes,
CORAM : N.A. BRITTO, J.
DATE
: 3rd JULY, 2008
Citation; 2008(5)ALLMR49; 2008(6)BomCR304
This appeal and cross objections are directed against the judgment
dated 15/07/2000 of the learned Civil Judge, Senior Division at Panaji, by
which the suit filed by the plaintiff has been dismissed.
2.
The parties hereto shall be referred to in the names as they appear in
the cause title of the suit.
3.
By notification issued under Section 4(1) of the Land Acquisition Act,
1894 and award dated 4/10/1985, the Government acquired vast land situated
at Calapur and other villages. In that they included the land belonging to the
Communidade of Calapur/defendant no. 3 of which the plaintiff and
defendants no. 1 & 2 (defendants, for short) were the tenants. Compensation
was paid to them on 50.50 basis i.e. to defendant no.3/Communidade half of
the amount and to the plaintiff and the defendants the remaining half. The
said payment was done on the basis of the survey records. Compensation
relating to survey no. 225 was taken by the plaintiff and Compensation
relating to survey nos. 226, 227 and 196 was taken by the defendants on
30.20 basis. In fact, the entire property claimed by the plaintiff as well as the
defendants, as tenants of defendant no. 3/Communidade has been acquired
and the dispute which now remains is only as regards the compensation.
4.
The plaintiff on or about 21/07/1986 sent a notice to the defendants
claiming that she was the tenant of the property of the said Communidade
known as 'Premeiro Lanco Cajuaria Por Sul' admesuring 45.072 sq. mts. and
that the plaintiff was in possession of the same and that by mistake an area of
19,600 sq. mts. was wrongly included in survey no. 226 of village Calapur of
which the said defendants claim to be the tenants, although the said area
formed part of the property of the plaintiff and which was always in her
possession. The plaintiff also stated that defendants had illegally and without
having any right collected compensation of Rs. 1,20,756/- from the Land
Acquisition Officer, being the compensation awarded for the said area of
19,600 sq. mts. and therefore called upon the defendants to pay the said
compensation to the plaintiff.
5.
The plaintiff then filed the suit on or about 30/09/1986 and thereafter
got a surveyor appointed namely Shri Prazares Gonsalves/PW2 and on the
basis of his opinion amended the plaint on or about 6/12/1995 and while
maintaining that she was the tenant of the said property admeasuring 45,072
sq. mts., the plaintiff conceded that the plaintiff's property was not properly
surveyed. She further stated that the property ought to have been surveyed as
per the plan of Communidade and that an area of 24,880 sq. mts. was
wrongly included in Survey No. 226, 1,600 sq. mts. was wrongly included in
Survey No. 227 and parts were also wrongly included in other neighbouring
properties surveyed under Survey No. 223, 228, 226, 202 and 222, road and
drain of the said village. It was also the case of the plaintiff that a part of the
said entire property was surveyed under no. 225 but in a wrong name. The
plaintiff also stated that a part of it was surveyed under no. 224 regarding
which one Domingos Vincent Dias has collected the compensation. It was
the case of the plaintiff that the total area of survey no. 226 was 29,270 sq.
mts. and total compensation paid was Rs. 3,60,812/- and similarly the total
area of survey no. 227 as shown in the award was 26,078 sq. mts. and the
compensation awarded was Rs. 2,65,905.10 paise. As per the plaintiff, the
amount corresponding to the area 24,880 of survey no. 226 is Rs. 3,06,696.35
and the compensation of the area of 1,600 sq. mts. of survey no. 227 is Rs.
16,314.45. As per the plaintiff, out of the said amount of Rs. 3,06,696.35, the
Communidade collected Rs. 1,53,348.17 while defendants no. 1 & 2
collected Rs. 1,53,348.17, and similarly out of the said amount of Rs.
16,314.45, the Communidade collected Rs. 8,157.23 while defendants no. 1
& 2 collected Rs. 8,157.25. It was the case of the plaintiff that defendants no.
1 & 2 had no right to the said amount of Rs. 1,61,505.42 which she claimed
with interest at the rate of 18% per year from the date of filing of the suit.
The plaintiff claimed that the suit portion is part of the property known as
'Primeiro Lanco Cajuaria Por Sul' and she has been in possession of the same
from the year 1971. The plaintiff also sought a declaration that the suit plot
of land was part and parcel of the said property belonging to defendant no. 3
of which the plaintiff was the tenant.
6.
Defendant no. 3/Communidade of Calapur did not contest the suit.
The defendants contested the suit. It was the case of the defendants that the
plaintiff was duly represented by an Advocate before the Land Acquisition
Officer and necessary objections were filed but nowhere did the plaintiff
mention or represent to the Land Acquisition Officer that a portion of the
property bearing survey no. 227 pertained to her plot and this shows that the
defendant was making the present claim as the matter of afterthought. The
defendants stated that the defendant no. 1 is in possession of the property
surveyed under no. 226 and after the death of the father of defendant no. 1, in
the year 1976, both the defendants were in exclusive possession of the said
property as tenants of defendant no.3 and the defendant no.1 along with his
father was in possession of the said property for the last about 35 years. The
defendants stated that the new survey was done on the basis of title and
possession held by the parties. The defendants stated that the plaintiff was
duly represented before the Land Acquisition Officer and she had put her
case before the Land Acquisition Officer in writing, but had raised no dispute
of inclusion of area of the said property in other survey numbers nor raised
the dispute that the defendants were not entitled for compensation of alleged
encroached area. The defendants denied that any portion of the property was
possessed by the plaintiff or wrongfully included in survey no. 226 and in
fact no property was surveyed in the name of the plaintiff, though she might
have been awarded the property by defendant no. 2 in public auction and the
records of defendant no.3 might have shown her as tenant of the property.
Defendants stated that there is a dispute pending between Ispiano Fernandes
in relation to survey no. 225 and in that suit it is not the case of either of the
parties that any portion of that property has gone to defendant no.1. The
defendants denied that the area of the said property has been wrongly
included in survey no. 226 or 227 and further stated that no portion of the
property possessed by the plaintiff was included either in survey no. 226 or
survey no. 227.
7.
The learned trial Court framed as many as 11 issues. The plaintiff
examined herself in support of her case and produced several documents
including certificate from the Communidade in relation to her property as
well as in relation to the property of Casiano Fernandes, presumably the
father of defendant no.1. The learned trial Court amongst the issues framed,
framed issue no. 10 in relation to the plea taken by the defendants that the
Court had no jurisdiction to entertain and decide the suit as the jurisdiction
was barred under Section 9 of CPC and decided the said issue against the
defendants and in the light of that the defendants have filed cross objections.
8.
The learned trial Court observed that it was not understood as to
exactly when and how the plaintiff came to know of the alleged wrong
inclusion of her area in survey no. 226 and 227 and that it appeared that she
came to know of the said wrong entry after she got her land surveyed with the
help of private surveyor namely the said Shri Gonsalves/PW2 but according
to him he was engaged in the year 1988 which meant that he was engaged
after the filing of the suit in the year 1986 and if that was so, it is not
understood as to on what basis the plaintiff had filed the suit against the
defendants no. 1 & 2 to collect the said amount of Rs. 1,61,505.42 when she
herself did not know about the inclusion of the area in the suit property on the
date of filing of the suit. The learned trial Court also noted that the survey of
village Calapur was promulgated in the year 1972 and the land was acquired
in the year 1982 and the compensation was collected by the respective parties
in the year 1986 and admittedly survey records were kept for public objection
before their promulgation but it appeared that the plaintiff did not object to
the same, reason being that she was illiterate which did not appear to be
convincing. The learned trial Court observed that once the record of rights
disclose that defendant no.1 was the occupant of the suit plot of land,
presumption under Section 105 of the Land Revenue Code would follow in
favour of the defendants. Referring to the evidence of Danial Araujo/PW3,
the learned trial Court observed that the said evidence was not sufficient to
rebut said presumption as the said witness had not thrown much light on the
exact extent of the area of the property in possession of the plaintiff. The
learned trial Court therefore came to the conclusion that the plaintiff had
failed to prove that the area of a property was included either in survey no.
226 or 227 as claimed by the plaintiff.
9.
Admittedly, as of now there is no question of any declaration being
granted in favour of the plaintiff that the property claimed by her is part and
parcel of the property belonging to the Communidade since the entire
property now belongs to the Government. The relief that the plaintiff is the
tenant could not be granted by the Civil Court. The only question is whether
the plaintiff was entitled to receive the compensation which has been paid to
the defendants.
10.
Shri Sonak, the learned Counsel on behalf of the defendant has
submitted that the plaintiff participated in the proceedings before the Land
Acquisition Officer and collected compensation from him.
Learned
Advocate further submits that the plaintiff did not raise any objection as to
the measurement of the property claimed by her and therefore the plaintiff
was not entitled to maintain a separate suit, since the questions raised could
have been raised and settled before the Land Acquisition Officer. Shri Sonak
has also submitted that the Act is complete Code in matters of dispute as
regards area of land, compensation, etc. and the plaintiff not having raised
any dispute before the Land Acquisition Officer, she is precluded to file a
suit and raise the same. In support of his submission that the Act is a
complete Code in matters relating to acquisition and the jurisdiction of the
Civil Court is ousted, learned Counsel has placed reliance on several
decisions of the Apex Court as well as of this Court.
11.
On the other hand, Shri Lotlikar, the learned Senior Counsel, on behalf
of the plaintiff, has submitted that the claim of the plaintiff was based on title
and therefore the suit is maintainable. Learned Senior Counsel has further
submitted that stray statements in the evidence cannot be taken to prove
ouster of jurisdiction of the Civil Court. Learned Senior Counsel further
submits that the objection as regards jurisdiction is not because the plaintiff
had participated in the proceedings before the Land Acquisition Officer.
Learned Senior Counsel has placed reliance on the decision in the case of Dr.
G.H. Grant V/s. The State of Bihar (AIR 1966 SC 237) and in the case of
Asher Ali V/s. Sukhna Seikh (dec. by LR's) & Ors. (AIR 1992 Gauhati 1) .
12.
Issue no. 10 was framed in the light of the plea taken by the
defendants that the Court had no jurisdiction as jurisdiction was barred as
there was special procedure provided under the Act. I will deal with this
issue first.
Admittedly, the plaintiff had appeared before the Land
Acquisition Officer and collected the compensation payable to her without
any murmur or demur, either as regards the area of her land acquired or
compensation to whom it was payable. There is no dispute that all the parties
did appear before the Land Acquisition Officer and did collect the
compensation payable to them in terms of the award. In other words, they
accepted the award. It is only after the collection of the compensation that
the plaintiff sent the said letter and then filed the suit. Was such a course
open to her?
13.
In the case of State of Mizoram V/s. Biakchhawna (1995 (1) SCC
156) referring to the Land Acquisition Act, 1894, the Apex Court stated that:
“The scheme of the Act envisages that on making an
application under section 18, making a reference under Section
18 of the Act in the manner prescribed under Section 19 to the
Court is mandatory and is sine qua non for the Court to proceed
'thereupon' since it gets jurisdiction to issue a notice to the
persons enumerated therein specifying the day to appear before
it.
The Award is a decree and the statement of grounds of
such award a judgment under sub-section (2) of Section 26 of
the Act for the purpose of appeal under Section 54. Since this is
a special procedure provided in the Act, by necessary
implication, the civil court under Section 9 of the Civil
Procedure Code 1908 has been prohibited to take cognizance of
the objections arising under the Act for determination of the
compensation for the land acquired under the Act.”
14.
In State of Bihar V/s. Dhirendra Kumar & Ors. (1995 (4) SCC 229)
the Apex Court stated that:
“The provisions of the Act are designed to acquire the
11
land by the State exercising the power of eminent domain to
serve the public purpose. The State is enjoined to comply with
statutory requirements contained in Section 4 and Section 6 of
the Act by proper publication of notification and declaration
within limitation and procedural steps of publication in papers
and the local publications envisaged under the Act as amended
by Act 68 of 1984.
Thus it could be seen that the Act is a complete code in
itself and is meant to serve public purpose. We are therefore
inclined to think, as presently advised, that by necessary
implication the power of the civil court to take cognizance of the
case under Section 9 of CPC stands excluded, and a civil court
has no jurisdiction to go into the question of the validity or
legality of the notification under Section 4 and declaration under
Section 6, except by the High Court in a proceeding under
Article 226 of the Constitution. So, the civil suit itself was not
maintainable. When such is the situation, the finding of the trial
court that there is a prima facie triable issue is unsustainable.”
15.
In Laxmi Chand & Ors. V/s. Gram Panchayat, Kararia & Ors. (1996
(7) SCC 218) the Apex Court again observed that:
“It would thus be clear that the scheme of the Act is
complete in itself and thereby the jurisdiction of the civil court to
take cognizance of the cases arising under the Act, by necessary
implication, stood barred. The civil court thereby is devoid of
jurisdiction to give declaration on the invalidity of the procedure
contemplated under the Act. The only right an aggrieved person
has is to approach the constitutional courts, viz., the High Court
and the Supreme Court under their plenary power under Articles
226 and 136 respectively with self-imposed restrictions on their
exercise of extraordinary power. Barring thereof, there is no
power to the civil court.”
16.
In the case of Shyamali Das V/s. Illa Chowdhry & Ors. (2006 (12)
SCC 300) the Apex Court has again reiterated that:
“The Act is a complete code by itself. It provides for
remedies not only to those whose lands have been acquired but
also to those who claim the awarded amount or any
apportionment thereof.
A Land Acquisition Judge derives its jurisdiction from the
order of reference and is bound thereby. His jurisdiction is to
determine adequacy or otherwise of the amount of compensation
paid under the award made by the Collector. It is not within his
domain to entertain any application of pro interesee suo or in the
nature thereof.”
17.
In the case of Asher Ali V/s. Sukhna Seikh (dec. by LR's) &
Ors.(supra), the learned Single Judge of Gauhati High Court held that:
“It is well accepted proposition of law that the civil court
has jurisdiction to try all suits of civil nature except those
expressly or impliedly barred. So far as the exclusion of
jurisdiction is concerned, it is equally well-settled that such
exclusion is not be readily inferred. It must be explicit or clearly
implied. Even in cases where the jurisdiction of the Civil Court
is excluded there are circumstances under which a Civil Court
may entertain a suit. So also, the mere fact that a special statute
provides for certain remedies does not by itself necessarily
exclude the jurisdiction of the Civil Court to deal with the case
brought before it in respect of some of the matters covered by
the same statute. The Court therefore observed that a person
claiming a part of the compensation awarded by the Collector in
Land Acquisition Proceedings under the Land Acquisition Act,
1894 is entitled to file a Civil Suit.”
18.
The cases of State of Bihar V/s. Dhirendra Kumar & Ors. (supra) and
Dr. G.H. Grant V/s. The State of Bihar (supra) were considered by this
Court in the case of Communidade of Bambolim V/s. Manguesh Betu
Kankonkar (2000 (2) Goa L.T. 374). In this case, the Court was faced with
the question as to whether the suit, at the instance of a person, who claims
entitlement to compensation awarded or to a part thereof in acquisition
proceedings, to which he was not a party, is maintainable and the said
question was answered in the affirmative. In other words, a person who
claimed entitlement to compensation, if he was not a party to the acquisition
proceedings, he could file a suit. Nevertheless, this Court referred to the
Division Bench judgment of this Court in the case of Shri Deo Sansthan
Chinchwad & Ors. V/s. Chintaman Dharnidhar Deo and anr. (AIR 1962
Bom. 214) wherein it was observed as follows:
“Unless the claim of a person who is lawfully entitled to a
share in the compensation money, is already adjudicated upon
under the provision of the Land Acquisition Act or such person
having had notice of such proceedings, appears therein and fails
to assert and prosecute his claim to a share in accordance with
the provisions of that Act, he would be entitled under Section
31(2) Proviso 3, to file a Suit to recover his share from the
person who may have received the whole or any part of the
compensation amount awarded under the Act.”
19.
Referring to Dr. G.H. Grant V/s. The State of Bihar (supra), this
Court observed that it was clear that the Apex Court while dealing with the
scheme of the Land Acquisition Act in general and in the light of Section 30
of the Act, in particular, specifically held that a separate suit was
maintainable.
20.
Section 18 of the Land Acquisition Act, 1894 provides that:
(1) Any person interested who has not accepted the award may, by
written application to the Collector, require that the matter be
referred by the Collector for the determination of the Court,
whether his objection be to the measurement of the land, the
amount of the compensation, the persons to whom it is payable,
or the apportionment of the compensation among the persons
interested.
Sub-section 2 further provides that:
(2) The application shall state the grounds on which objection to the
award is taken:
Provided that every such application shall be made, -
(a) if the person making it was present or represented before the
Collector at the time when he made his award, within six
weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from
the Collector under Section 12, sub-section (2), or within six
months from the date of the Collector's award, whichever period
shall first expire.
Section 30 of the Act deals with dispute as to apportionment and it
provides that:
When the amount of compensation has been settled under
section 11, if any dispute arises as to the apportionment of the
same or any part thereof, or as to the persons to whom the same
or any part thereof, is payable, the Collector may refer such
dispute to the decision of the Court.
21.
Admittedly, the plaintiff did not raise any issue before the Land
Acquisition Officer as regards the measurements of the land acquired or the
amount of the compensation which was paid to her or to the defendants but
accepted the award and compensation paid without any protest. When a
special statute has created a machinery for granting reliefs which are
awardable under the statute, the jurisdiction of the civil court under section 9
of the CPC cannot be invoked for the same relief. As stated by this Court in
Communidade of Bambolim V/s. Manguesh Betu Kankonkar (supra), a
civil suit for enhancement of compensation is not maintainable in case the
amount is not accepted by the party under protest and reference under Section
18 is not prayed. The second proviso to sub-section (2) of section 31 of the
Act makes it clear that if a person has received compensation without
registering his protest, he is not entitled to make an application under Section
18 and the remedy provided by the statute is barred. Needles to say the
general remedy by recourse to the Civil Court is also barred. To receive
compensation for the land compulsorily acquired is a right created by the
Land Acquisition Act and will have to be exercised by following the
procedure laid down by the statute.
22.
Considering the law led down by the Apex Court, particularly in State
of Mizoram V/s. Biakchhawna (supra) the Division Bench of this Court as
well as the learned Single Judge of this Court in the case of Communidade
of Bambolim V/s. Manguesh Betu Kankonkar (supra), the plaintiff having
raised no dispute as regards measurement of land or the compensation or the
persons to whom it was payable, before the Land Acquisition Officer, would
not be entitled to maintain a separate suit as regards the same. Viewed thus,
the civil suit filed by the plaintiff after accepting the award as to the
measurements of her acquired land as correct, and not having raised any
dispute as regards the same the suit was clearly barred for want of
jurisdiction.
23.
Coming to the merits of the case, it could be broadly stated that Lote
16
No. 633 claimed by the plaintiff and known as 'Premeiro Lanco Cajuaria Por
Sul' admeasured 45,072 sq. mts. and was located to the South of Lote No.
634 known as Segundo Lanco Cajuaria admeasuring about 34,622 sq. mts.,
as can be seen from the certificates produced by the plaintiff, though the
defendants have claimed the property in their possession to be known as
'Chowat'. However, it does not at all appear that the plaintiff ever came in
possession of the said property claimed by her to the extent of the area shown
on the records of the Communidade. The plaintiff's case has always been
inconsistent. The plaintiff has not even stated as to how much compensation
she received and of what area. Presumably, she received compensation as
regards survey nos. 224 and 225. The plaintiff in her notice dated 21/07/1986
stated that an area of 19,600 sq. mts. was included in survey no. 226 of
Village Calapur but in her plaint she further stated that an area of 1,600 sq.
mts. was also included in survey no. 227. In addition, she also claimed that
the area of Lote No. 633 was also included in survey nos. 223, 228, 226, 202
and 222 besides a road and a drain. However, according to the surveyor Shri
Gonsalves/PW2, the area of Lote No. 633 of 120 sq. mts. was shown in
survey no. 197/0, 1,880 sq. mts. in survey no. 202/0, 9,000 sq. mts. in survey
no. 224/0, 6,400 sq. mts. in survey no. 225/0, 24,880 sq. mts. in survey no.
226/0 and 1,600 sq. mts. in survey no. 227/0 and 50 sq. mts. in 228/0 and
1,142 sq. mts. of the nalla. The plaintiff claimed that her property was
demarcated at site. The plaintiff also stated that the lessees and tenants of the
properties have to enjoy and possess their respective properties as per the
plan of defendant no. 3/Communidade. At the same time, she stated that she
was in possession of the said property (of Lote no. 633) from the year 1971,
but in cross-examination she stated that her plea that she had obtained the
property in auction in the year 1971 was not correct and that she also could
not explain as to why it was so mentioned. Regarding the notice, she stated
that it was not as per her say. She considered that she was not taken to the
site to show the property, presumably after the auction in her favour. On the
contrary, she admitted that she had form no. III and form No. I and XIV in
her possession since long and this shows that she was fully aware about the
area of the property claimed by her.
The plaintiff's witness
Danial
Araujo/PW3 has not at all advanced her case. On the contrary, the defendant
no.1/DW1 has stated that his property is bounded on all four sides by a cactus
(niwal kanti) plants and that the property to the South of his property was
being enjoyed by the plaintiff and in between the two there is a said fence
like on other three sides. He also stated that whiles granting the said property
to his late father in the year 1951, the attorney of defendant no.
3/Communidade had granted it at site. Moreover, the case set out by the
defendant is supported by the promulgated survey records which carried a
presumption in the favour of the defendants that they were in possession of
the suit property. It is more than probable that the defendants came in
possession of the area subsequently surveyed in their name, in the year 1951
or there about much before Lote no. 633 was taken on auction by the plaintiff
and the defendants continued to be in possession of the said area until its
acquisition by the Government. On behalf of defendants reference is also
made to the notification no. 1/1/93/RD published on gazette dated 9/11/2006
by which the records prepared under Land Revenue Code, 1968 shall be
deemed to be service made and maintained under the provisions of Goa,
Daman and Diu Agricultural Tenancy (Revenue Survey and Record of
Rights) Rules, 1967. Plaintiff has failed to rebut the presumption available to
the defendants by virtue of Section 106 of the Land Revenue Code and now
under the said Goa, Daman and Diu Agricultural Tenancy (Revenue Survey
and Record of Rights) Rules, 1967. The defendants being in possession of
the property of the Communidade were rightly paid half share of the
compensation and in between themselves as agreed by them in the ratio of
30.20.
24.
I find there is no merit in this appeal and, consequently, the same is
hereby dismissed.
N.A. BRITTO, J.
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