PARUKUTTY AMMA v. VELU NAIR — 1987 DIGILAW 41 (KER)

Judgment :- 1. The second claimant (B party) in L.A.R. 65/81 of the Subordinate Judge's Court, Trichur is the appellant herein. 2. 0.4690 hectares of land with improvements therein in survey No. 1149 of Venganelloor Village has been acquired. The Land Acquisition Officer awarded Rs. 1,10,034-70 as compensation inclusive of solatium to claimants 1 to 3 in equal share and passed the award. 4th claimant, brother of first claimant, filed an application before the Land Acquisition Officer putting forward the claim to 1/4 share in the compensation amount and requesting reference to the Land Acquisition Court in the matter of apportionment. 3. Claimants 1 and 2 filed joint statement denying the claim of the 4th claimant and putting forward an exclusive claim for the compensation amount. This was rebutted by the 4th claimant. The Land Acquisition Court upheld the contention of the 4th claimant and held him entitled to 1/8 of the total compensation amount. It is this award that is now challenged. 4. The first claimant is the brother and the 4th claimant is the son of now deceased Parukutty Amma. Claimants 2 and 3 are the daughters of the first claimant. There is no dispute that the land belonged to the tarwad of the parties. The members of the tarwad entered into Ext. B1 registered partition deed dated 8-12-1970, in which disputed land was allotted to the tavazhi of now deceased Parukutty Amma. Parukutty Amma died intestate. She had 1/4 share in the property. Under the personal law governing her, her 1/4th share will devolve equally on her two children. It was thus the the Land Acquisition Court awarded 1/8 of the amount to the 4th claimant and other 1/8 to the first claimant. This claim was denied by claimants 1 to 4. According to them, in the tavazhi of deceased Parukutty Amma, there was oral partition through mediation of PW. 2 and another on 20-7-1972 allotting one share in the tavazhi properties to the 4th claimant, one share to now deceased Parukutty Amma and another share to first claimant's sub tavazhi. They contended that the acquired land was set apart to the share of the first defendant's tavazhi. The first claimant died pending proceedings before the court below leaving a will, Ext. Al, bequeathing her right to her daughter, second claimant. It was thus that they claimed the entire compensation amount. 5. They contended that the acquired land was set apart to the share of the first defendant's tavazhi. The first claimant died pending proceedings before the court below leaving a will, Ext. Al, bequeathing her right to her daughter, second claimant. It was thus that they claimed the entire compensation amount. 5. The second claimant examined as P.W.1 purported to speak to the oral partition. Her evidence was sought to be supported by one of the alleged mediators examined as P. W. 2. P. W.1 deposed that in regard to the oral partition a document had been prepared and it was in her custody, but the document was not produced in court. Certainly an adverse inference could be legitimately drawn against her on that account. The case of oral partition was denied by the 4th claimant examined as D. W.1. If oral partition had been entered into as early as 1972, there must be separate payment of land revenue, which must be evidenced by documents. There must be other documentary evidence in support of management. No such documents were produced before the court below. In these circumstances we do not find anything wrong in the finding of the court below against the case of oral partition. If that be so, the apportionment made by the court below cannot be interfered with. 6. Learned counsel for the appellant raised a new contention before us, namely, that the court below had no jurisdiction to answer the reference made by the Land Acquisition Officer. In the memorandum of appeal it is stated that the Land Acquisition Officer apportioned the entire amount only among claimants 1 to 3 and passed an award and called upon the three claimants to appear before him to receive payment. At that stage, 4th claimant filed an application before the District Collector, who stayed payment. It was thereafter that the 4th claimant put forward a claim before the Land Acquisition Officer and sought reference. It is also alleged in the memorandum of appeal that the entire land acquired was in two blocks, namely, blocks 3 and 6. The land in block 3 belonged to the 4th claimant. He entered appearance before Land Acquisition Officer and put forward his claim. However, he did not put forward any claim for compensation in regard to the land in block 6, which according to the appellant takes in the land in dispute. The land in block 3 belonged to the 4th claimant. He entered appearance before Land Acquisition Officer and put forward his claim. However, he did not put forward any claim for compensation in regard to the land in block 6, which according to the appellant takes in the land in dispute. According to them since there was no dispute in the matter of apportionment of the compensation over disputed land, reference was without jurisdiction. 7. Learned counsel placed reliance on the decision of a Division Bench of Travancore-Cochin High Court in State v. Kumaranalloor Devaswom (1956 KLT 223) in support of his contention. That was not a case of reference in regard to apportionment or dispute as to title to land. That was a reference at the instance of a person who sought enhancement of compensation. The court held and if we may say so, with great respect, rightly that a person who had not put forward a claim in regard to quantum of compensation before the Land Acquisition Officer could not seek a reference in regard to adequacy of compensation. The three questions arose for consideration in that case were noted in Para.4 of the reported judgment. Point No. 2 was "Had the court below jurisdiction to award enhanced compensation to the first plaintiff who have not applied for reference." The question was answered against him. The decision rested on the provisions of S.18(1) and S.21 of the Travancore Land Acquisition Act. We notice an error in the head note of the reported decision. The bead note refers to absence of objection to the apportionment of compensation made by the Collector. That was a mistake. There was reference only regarding quantum of compensation; there was no reference of any dispute regarding title to land or apportionment of compensation. In the absence of specific claim regarding award of compensation prior to the award, the amount could not be enhanced. This decision in our opinion cannot cover the facts of the present case. 8. There was reference only regarding quantum of compensation; there was no reference of any dispute regarding title to land or apportionment of compensation. In the absence of specific claim regarding award of compensation prior to the award, the amount could not be enhanced. This decision in our opinion cannot cover the facts of the present case. 8. In Pramatha Nath Mullick Bahadur v. Secretary of State (A. I. R 1930 P. C. 64) the Privy Council observed that the jurisdiction of the courts under the Land Acquisition Act, 1894 is a special one and is strictly limited by the terms of S.18, 20 and 21 and it arises only when a specific objection has been taken to the Collector's award and is confined to consideration of that objection. In Dr. G.H.Grant v. The State of Bihar (A.I.R.1966 SC. 237) the court pointed out a distinction between powers under S.18(1) and 30 of the Land Acquisition Act, 1894 and observed that the Collector under S.18(1) is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed by sub-section (2) of that section of a person interested who has not accepted the award. The Collector under S.30 is authorised to refer to the court after compensation is settled under S.11, any dispute relating to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person who is shown in that part of the award which relates to apportionment and who is present either personally or through a representative, or on whom notice is served under S.12(2), if he does not accept the award must have applied to the Collector within the time prescribed in S.18(2) to refer the matter to the court. But a person who has not appeared in the acquisition proceedings before the Collector, if he is not served with notice of filing may raise dispute as to apportionment or as to person to whom it is payable and apply to the court for reference under S.30 for the determination of his right to compensation which may have existed before the award or which may have devolved upon him since the award. While under S.18 the Collector is bound to make a reference on a petition filed by a person interested, he is under S.30 not enjoined to make a reference, he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable to agitate the dispute in a suit and pay the compensation in the manner declared by the award. The court further observed that as award by the Collector is strictly speaking as offer made to the person interested in the land notified for acquisition. The Collector has no power to take a final decision on the title to compensation. That dispute has to be decided either in a reference under S.18 or S.30 or in a separate suit. 9. The parallel provisions of the Kerala Land Acquisition Act received elaborate consideration at the hands of a Full Bench of this court in Ranisidhan v. Special Tahsildar for Land Acquisition (1974 KLT 724) In that case compensation was deposited under S.33(2) of the Act and reference made under S.32 of the Act. The appellants filed statement claiming compensation in regard to 16 cents and additional statement putting forward the claim for 8 more cents, for which one of the respondents already made claim. The Land Acquisition Court declined to decide the claim for 8 cents because appellants had not put forward such a claim before the Land Acquisition Officer and that dispute bad not been referred to the Land Acquisition Court. The decision highlights the duty of the Collector under S.11(3) of the Act to apportion compensation among all the persons known or believed to be interested in the land of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. A person interested, if he has not accepted the award of compensation or apportionment, or the decision as to the person entitled to it by the Collector can, under S.20 of the Act require a reference to be made. A person who did not appear before the Collector may, if he is not served with notice of filing award may raise a dispute as to the apportionment or as to the persons to whom it is payable and apply to court for reference under S.32. A person who did not appear before the Collector may, if he is not served with notice of filing award may raise a dispute as to the apportionment or as to the persons to whom it is payable and apply to court for reference under S.32. The Full Bench observed that the statute has taken care to see that no person lawfully entitled to compensation is deprived of the same, and that he has a right to have his claim decided by the court on a reference under S.20 or S.32 of the Act, or in a suit instituted by him in that behalf A reference in regard to disputed title or apportionment is really in the nature of interpleader suit. In Para.9 of the reported judgment, the Full Bench observed: "But for this limitation (that is under S.31) there is nothing in the Act which will preclude a person lawfully entitled to compensation amount, or part thereof, from claiming and establishing, that he as the real person interested is entitled to the same. Failure on his part to claim the compensation or part thereof, or his failure to dispute the claims advanced by others, or even an admission that another is entitled to the compensation amount, in proceedings before the Collector, cannot in our view, preclude him from advancing his claim and establishing the same, at any subsequent stage, before the Collector or before the court, so long as the rule of conclusive evidence slated in S.31 of the Act is not in bis way. His conduct, failure to claim or to dispute another's claim, or the admission, as the case ma; be, can, if established, be a relevant fact under the ordinary rules of evidence in assessing the merits of his claim, but he is under those rales of evidence also entitled to explain away these facts, and to establish his title to compensation or part thereof." (emphasis supplied) In Para.10 of the judgment the Full Bench cautioned that this will not apply to such a person to travel outside the scope of reference already made and to insist on decision by the court on questions not covered by the reference. 10. The Full Bench quoted with approval a passage in the judgment in Special Land Acquisition v. Umed Laloo (A.I.R 1948 Sind 82). 10. The Full Bench quoted with approval a passage in the judgment in Special Land Acquisition v. Umed Laloo (A.I.R 1948 Sind 82). In that passage the court was considering the scope of S.18 of the Land Acquisition Act, 1894 (corresponds to S.20 of the Kerala Land Acquisition Act). A person interested can require a reference within the stipulated time even if he has not been in receipt of a notice under S.12 or has not appeared or has not been represented before court. 11. We now briefly refer to the provisions of the Act and examine the question posed before us. S.3 to 9 contain provisions regarding the preliminary steps, such as publication of notification, payment of damages, declaration and the like. S.9 requires notice of enquiry to be issued to the interested parties. S.11 deals with the enquiry and award by the Collector. The Collector has to enquire into the objections if any, filed by by any person pursuant to notice under S.9 to the measurement made under S.8, value of the land at the date of publication of notification under S.3(1) and into the respective interest of the persons claiming compensation, and has to make an award of true area of the land, the compensation which shall be allowed for the land and apportionment of the said compensation among all the persons known or believed to be interested in the land of whom or of whose claims he has information, whether or not they have respectively appeared before him. In other words, even when an interested person has not appeared before him or put forward a claim to title to the land or entitlement to compensation, if the Collector is made aware that he has a claim, apportionment has to be made. This will indicate that the statutory scheme is not to preclude the Collector from apportioning compensation to a person who has not actually appeared before him or put forward a claim. Even if the person had not appeared before him he can make apportionment. Award has to be filed in the Collector's office and notice given to other interested persons who were not present personally or by representative when the award is made. 12. S.20 of the Act (corresponds to S.18 of the 1894 Act) deals with reference to court. Even if the person had not appeared before him he can make apportionment. Award has to be filed in the Collector's office and notice given to other interested persons who were not present personally or by representative when the award is made. 12. S.20 of the Act (corresponds to S.18 of the 1894 Act) deals with reference to court. Any person 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 compensation, the person to whom ft is payable, or the apportionment of the compensation among the persons interested. The application shall state the grounds on which objection is taken. The proviso prescribes time limit for making the application. S.21 requires that in making the reference, Collector shall state for the information of the court, the various particulars mentioned in sub-clauses including "the names of the persons whom he has reason to think Interested In such land". S.22 requires the court to issue notice to the applicant and other persons interested in the objection, except such of them as have consented without protest to receive payment and if the objection is in regard to the area of the land or to the amount of compensation the Collector also. S.23 states that scope of enquiry shall be restricted to a consideration of the interests of persons affected by the objection. 13. S.31 states that where there are several persons interested, they agree for the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between them the award shall be conclusive evidence of the correctness of the apportionment. According to S.32 when the amount of compensation has been settled under S.11 or 16, if any dispute arises as to the apportionment of the same or any part thereof, the Collector may refer such dispute to the decision of the court. Under S.33, on making an award under S.11 or 16, the Collector shall tender payment of the compensation awarded by him to the person interested entitled thereto according to the award and shall pay it to them unless prevented by any one or more of the contingencies mentioned in sub-s. (2). Under S.33, on making an award under S.11 or 16, the Collector shall tender payment of the compensation awarded by him to the person interested entitled thereto according to the award and shall pay it to them unless prevented by any one or more of the contingencies mentioned in sub-s. (2). Sub-s. (2) states, if they do not consent to receive it or if there be no person competent to alienate the land, or if there be any dispute as to title to receive compensation or as to the apportionment of it, the Collector deposits the amount in court to which a reference under S.20 would be submitted. 14. It is necessary to refer to the provisions of S.27 of the Act also. Sub-S. (1) states that when the applicant has made a claim to compensation, pursuant to any notice under S.9, the amount awarded to him by the court shall not exceed the amount so claimed or much less than the amount awarded by him under S.11. According to sub -s. (2) when the applicant has refused to make such claim of has omitted without sufficient reason (to be allowed by the judge) to make such a claim the amount awarded by the court shall not be less than the amount awarded by the Collector. 15. The above provisions would indicate that there are only two restrictions in regard to power of the Land Acquisition Court, namely, those contained in S.23 and in S.27. The scope of enquiry shall be restricted to consideration of the interests of persons affected by the objection. In regard to claim of enhancement of compensation on a reference under S 20 court cannot award to the claimant any amount in excess of the amount claimed by him before the Land Acquisition Officer, or where he has omitted to make such a claim in excess of the amount awarded by the Collector. In the latter case, of course, he has a right to satisfy the court that his omission to make claim was for sufficient reason and it is for the court to allow or disallow the same. In the latter case, of course, he has a right to satisfy the court that his omission to make claim was for sufficient reason and it is for the court to allow or disallow the same. The scheme of the Act does not show that it was the legislative intention to shut out the claim of a person claiming to be interested in the matter from putting forward his title to the compensation, or share on apportionment merely because of his failure to put forward such a claim before the Collector prior to the award. Whether or not he has put forward a claim to title to the land or to the compensation amount in full or in part, before the Collector prior to the passing of the award, he can under S.20 apply to the Collector raising an objection as to the persons to whom the compensation is payable or apportionment of the compensation among the persons interested and seek a reference of the matter to the Land Acquisition Court. The exercise of this right is not conditional on raising objection before the Collector at a stage prior to the award Nor is the right conferred only on persons who put forward such claims regarding title to compensation amount or apportionment prior to the award. If a person is interested in the matter all that is necessary to seek reference under S.20 is that he should not have accepted the award. If so, by written application he may invoke S.20. The only restriction on the power of the court to decide the person entitled to compensation or apportionment on a reference under S.20 is the one imposed under S.23, restriction being that the scope of the enquiry shall be restricted to a consideration of the interests of the persons affected by the objection. The Land Acquisition Court can consider only the claims put forward by the person who sought the reference and the persons who are affected by his objection. This discussion does not relate to claim for enhancement of compensation, which is governed by S.27 of the Act. The Land Acquisition Court can consider only the claims put forward by the person who sought the reference and the persons who are affected by his objection. This discussion does not relate to claim for enhancement of compensation, which is governed by S.27 of the Act. We therefore hold that a person interested, though he has not put forward a claim regarding person entitled to compensation or apportionment of compensation before the Collector prior to the award, can apply for a reference objecting those matters before the Collector under S.20 and the Collector is obliged to make a reference. The court has jurisdiction to conduct an enquiry in regard to interests of person at whose instance reference was made and the interests of the persons affected by the objection. In such a case the reference is not vitiated by lack of jurisdiction and the Court cannot decline to decide on such objections or to answer the reference. In these circumstances we dismiss the appeal.