CHANDRASHELHAR NINGAPPA CHIAKKANNAVAR v. THE SPECIAL LAND ACQUISITION OFFICER, KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, DHARWAD
2007-11-29
D.V.SHYLENDRA KUMAR
body2007
DigiLaw.ai
ORDER D.V. Shylendra Kumar, J. This revision petition under Section 115 of the Civil Procedure Code, 1908 is directed against the order dated 26-10-2006 passed by the II Additional Civil Judge (Senior Division), Dharwad dismissing Misc. Application No. 112 of 2002 filed by this petitioner for reviewing the earlier order dated 20-3-2002 in LAC No. 41 of 1993 on the file of that Court which was a reference at the instance of the petitioner seeking for enhancement of compensation in respect of the land acquired in the name of the petitioner. 2. Under the impugned order, the learned Judge of the Reference Court made an observation that entertaining applications by persons who were not parties before the Land Acquisition Officer in the reference made under Section 18(1) of the Land Acquisition Act, 1894 for enhancement of compensation though appear to be beyond the jurisdiction of the Court, for giving a finality to the dispute between the parties, it may be desirable to examine such question and therefore, the order does not call for review. 3. Submission of Sri J.S. Shetty, learned Counsel for the petitioner is that even the learned Judge of the Reference Court himself had observed that entertaining such applications for apportionment of compensation in respect of the land acquired under the Land Acquisition Act in a reference under Section 18(1) of the Act for enhancement of compensation appear to be beyond the jurisdiction of the Court nevertheless, not reviewing the order is material irregularity and therefore, the order requires to be revised. It is also submitted that the persons who sought for impleadment before the Reference Court had not questioned the entitlement to receive the compensation exclusively by the petitioner in whose name the land stood and had been notified under the acquisition proceedings and if at all, such an application should have been filed under Section 31 of the Land Acquisition Act then alone the matter could have reached the Reference Court and in the absence of such an application under Section 31 of the Act, the Reference Court could not have entertained the impleading application for determining such questions and this legal position having been overlooked, the order suffers from material irregularity and calls for interference. 4. During the course of submissions.
4. During the course of submissions. learned Counsel for the petitioner has also submitted that the learned Judge of the Reference Court has placed reliance on the judgment and decree in O.S. No. 566 of 1997 which was a suit by persons who had sought for impleadment before the Reference Court wherein the petitioner also figures as a respondent and that in the said suit, respondents 10 to 14 did not actually get 11/16th share of the entire acquired property but out of one half of the property, they have got this share and even that is not correct and that the petitioner has pursued that matter by way of filing an appeal against the judgment and decree in O.S. No. 566 of 1997 and therefore, the learned Judge of the Reference Court had rendered the judgment in ignorance of the actual position and as such, the order requires to be reviewed. 5. The questions that arise for consideration in an application under Order 47, Rule 1 of the CPC are very limited. It is not an’ appeal or a revision against an order sought to be reviewed. It is an application which can be examined within the scope of review jurisdiction. 6. Petitioner if so aggrieved with the judgment and decree passed by the Reference Court in LAC No. 41 of 1993 could have pursued against that judgment in a manner provided in law, but chose not to do so and was content with filing a review application raising all legal contentions that could have been perhaps raised in an appeal or a revision. 7.
7. If the learned Judge of the Reference Court before whom the review application came up was of the view that the Reference Court though would not normally examine a rival claim for apportionment in an application for enhancement of compensation referred to the Court under Section 18(1) of the Land Acquisition Act but nevertheless, when such dispute also would be referred to the same Court for resolution and for the purpose of giving a finality to such disputing claim in respect of appor-tionment of compensation amount exam-ines the same notwithstanding there being no application’ under Section 31 of the Act and if had taken the view that the earlier decision was not one without jurisdiction and therefore did not call for review, while I find this is a plausible view, I do not find any illegality or material irregularity in such finding recorded by the Reference Court while passing the order on the review application. I say so because the jurisdiction for resolving such disputes between the competing parties for receiving compensation amount in respect of an acquired land is again with the very Reference Court even in terms of Section 31 of the Act. The only non-compliance was that the persons who had sought for impleadment did not come through an application under Section 31 of the Act but directly landed before the Reference Court. Section 31 reads as under: “31. Payment of compensation or deposit of same in Court.- (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next sub-section.
Payment of compensation or deposit of same in Court.- (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this section, the Collector may, with the sanction of the appropriate Government, instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof’, That apart, the language of third proviso to sub-section (2) of Section 31 which says that any amount received by any person by itself will not absolve the liability of such recipients to pay a part of it or whole of it to any other person lawfully entitled thereto makes it very clear that an apportionment even as made by the Reference Court does not necessarily conclude the entitlement between the parties and it is only a tentative one subject to any person aggrieved making good the claim independently and if the person had the real entitlement and the recipients did not have any such entitlement to receive the full amount. 8. If the petitioner contends that the learned Judge of the Reference Court has committed an error either originally when passing the judgment and decree in the Land Acquisition Case or even while passing the order on the review application, it is open to the petitioner to fall back to sub-section (2) of Section 31 and make good his claim as against the persons who received more amount than they are really entitled to in any other manner known to law notwithstanding such apportionment in the proceedings before the LAC Court. 9. Even after hearing Sri Shetty, learned Counsel for the petitioner and Sri S.G, Kulkarni, learned Counsel for respondent 11 at considerable length, while I do not find any scope for interference with the order passed by the Reference Court rejecting the review application, it is open to the petitioner to take such action as is permitted in law in the light of the observations made in this order, as such examination cannot be undertaken in this revision petition. Revision petition is dismissed.