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2008 DIGILAW 335 (GAU)

Ajit Ranjan De v. State of Meghalaya and Anr.

2008-05-07

AFTAB H.SAIKIA, RANJAN GOGOI

body2008
Ranjan Gogoi, J.- 1. This appeal is directed against the judgment and order dated 10.6.2005 passed by the learned Single Judge dismissing the writ petition filed by the appellant. In the writ petition filed, the appellant had challenged an order dated 28.7.1999 passed by the District Collector, East Khasi Hills District, Meghalaya by which the application filed by the appellant under section 18 of the Land Acquisition Act, 1894 ('the Act') was dismissed. In the writ petition filed, the appellant No. 1 had also prayed for a consequential direction to the District Collector for the making of a Reference to the civil court under section 18 of the Act. 2. The relevant facts may now be noticed. The appellant is the owner of a plot of land measuring 27,078.09 sq. ft. situated at Kench's Trace, Shillong. By a Notification dated 19.12.1996 issued under the provisions of section 4 of the Act, the aforesaid land was proposed to be acquired for a public purpose, i.e., on behalf of the Income-tax Department. After publication of the Notification under section 4 of the Act, two Notifications under section 6 were published on 9.1.1997 and 10.1.1997. It may be required to be noticed, at this stage, that earlier, i.e., on 24.6.1994 the appellant had addressed a letter to the Commissioner of Income-tax, N.E. Region, Dhankheti, Shillong by which he had mentioned the price of Rs. 34,00,000 for the property proposed to be acquired. The acquisition proceeding was finalized by an award dated 7.6.1999 passed by the Collector. The total compensation for the acquisition in question was determined at Rs. 38,70,000 including additional compensation @ 30% under section 23(2) of the Act, as well as interest under section 23(3) of the Act, On the same date, i.e., 7.6.1999, the appellant, as the person interested, executed an agreement under section 11(2) of the Act, expressing his acceptance of the compensation of Rs. 38,70,000 which was accepted by the Collector. On the same date, i.e., 7.6.1999, the appellant handed over possession of the land to the Collector and duly signed the certificate of such handing over of possession. The appellant also signed a receipt dated 7.6.1999 for the amount of Rs. 38,70,000 paid to him, without registering any protest or objection. 38,70,000 which was accepted by the Collector. On the same date, i.e., 7.6.1999, the appellant handed over possession of the land to the Collector and duly signed the certificate of such handing over of possession. The appellant also signed a receipt dated 7.6.1999 for the amount of Rs. 38,70,000 paid to him, without registering any protest or objection. Thereafter, on 14.7.1999 the appellant had filed an application under section 18 of the Act before the Collector requiring the Collector to refer the matter to the civil court for correct determination of the market value of the land for the purpose of assessment of higher compensation claimed by the appellant. On this application dated 14.7.1999, the learned Collector had passed the order dated 28.7.1999 rejecting the prayer made therein on the ground that the appellant, having received the compensation amount without any protest, is not entitled to seek a reference of the matter by the civil court. According to the appellant, he came to know of the aforesaid order dated 28.7.1999 in August 2000, when he was in Kolkata in connection with his medical treatment. Thereafter, as soon as the health of the appellant permitted, the writ petition out of which this appeal has arisen was instituted on 20.11.2002. 3. We have heard Smt. A. Paul, learned counsel for the appellant and Sri N.D. Chullai, learned Government Advocate appearing for the respondents. 4. The learned counsel for the appellant has contended that it is not correct, as held by the learned Collector and affirmed by the learned Single Judge, that the appellant had accepted the compensation amount without registering any protest. In this regard, the learned counsel for the appellant has argued that oral protest(s) were raised by the appellant with regard to the amount of compensation. In any case, according to the learned counsel, filing of an application seeking a reference under section 18 of the Act, itself, amounts to raising of a protest with regard to the quantum of compensation. In any case, according to the learned counsel, filing of an application seeking a reference under section 18 of the Act, itself, amounts to raising of a protest with regard to the quantum of compensation. In this regard reliance has been placed by the learned counsel for the appellant on the judgments of the Apex Court in the case of Ajit Singh and Others v. State of Punjab and Others, (1994) 4 SCC 67 ; District Collector Kakinada and Others v. P. Nagabhushana Rao and Others, AIR 2004 AP 1 ; Orissa Industrial Infrastructure Development Corporation v. Supai Mundu and Others, AIR 2004 SC 390 ; Sujit Kumar Das and Others v. State of Tripura and Others, 2004 (3) GLT 686. Arguing further, the learned counsel for the appellant has contended that the learned Single Judge has erred in construing the agreement signed and executed by the appellant (enclosed as Annexure-1 to the counter affidavit of the respondents in the writ petition) as an agreement under section 11(2) of the Act. According to the learned counsel, on the aforesaid mistaken notion, the learned Single Judge held the law laid down in the above noted cases not to be applicable to the present case. Placing the aforesaid agreement before the court, the learned counsel for the appellant has contended that the said agreement was signed by the Collector who cannot be a party to an agreement visualized by section 11(2) of the Act. Such an agreement has to be between the owners of the land and the beneficiary of the acquisition. Such an agreement has to be placed before the Collector, who, thereafter, has to be satisfied with regard to the terms thereof including the compensation amount agreed upon. Thereafter, the Collector is required to pass an award in terms of the agreement. However, in the instant case, the Collector was a party to the agreement on which reliance has been placed by the learned Single Judge. The said agreement is not one .under section 11(2) of'the Act so as to enable a conclusion to be reached, as has been done, that on account of the existence of the agreement in question the present case is distinguishable from the cases wherein the Apex Court had laid down that the filing of the application under section 18 of the Act, itself, would amount to raising of a protest. The learned counsel for the appellant has also relied on a decision of the Apex Court in the case of lshwarlal Premchand Shah and Others v. State of Gujarat and Others, AIR 1996 SC 1616 to contended that the agreement contemplated under section 11(2) of the Act must necessarily be executed by the owner of the land and the beneficiary for whom the acquisition is being made. 5. Controverting the submissions made on behalf of the appellant, Sri N.D. Chullai, learned Government advocate, Meghalaya, has contended that the writ petition out of which this appeal has arisen is inordinately delayed as it seeks to challenge the order dated 8.7.1999 after nearly three years, without there being sufficient and cogent explanation for the delay. Sri Chullai has also contended that it is not correct that in the present case any oral protest(s) was raised by the appellant after receipt of the compensation amount, as contended. In this regard referring to the order dated 8.7.1999 of the learned Collector and the relevant part of the counter; affidavit of the' respondents, Sri Chullai has contended that the findings recorded on the said question are conclusive findings of fact which should not be responded in this appeal. Insofar as the provision of section 11(2) of the Act is concerned, Sri Chullai has contended that the agreement visualised by the aforesaid provision of the Act is an agreement between the persons interested, i.e., the owners of the land. The learned Government advocate has further pointed out that in the present case, the appellant is the sole owner of the land that had been acquired. 6. The rival contentions advanced on behalf of the respective parties have received the due and anxious consideration of the court. Though a finding has been recorded by the learned Single Judge that the writ petition suffers from the vice of the inordinate delay, as the learned Single Judge had not refused an adjudication on merits to the appellant in spite of the aforesaid findings, we are of the view that the question of delay has become largely academic. 7. The contention of the appellant with regard to raising of oral protest(s) with regard to the quantum of compensation stands belied by the relevant materials on record, which have been referred by the learned Collector in the order dated 28.7.1999. 7. The contention of the appellant with regard to raising of oral protest(s) with regard to the quantum of compensation stands belied by the relevant materials on record, which have been referred by the learned Collector in the order dated 28.7.1999. As the said question is essentially a question of act, we are of the view that the learned Single Judge was perfectly justified in holding that the findings recorded by the learned Collector in this regard cannot be termed to be erroneous on the face of it so as to warrant interference the court. 8. This would bring the court to the main issue involved in the present proceeding, i.e., whether the appellant is entitled to have his claim referred to the civil court under the provisions of section 18 of the Act. 9. To answer the aforesaid question, the provisions of sections 18(1) and 31(1) and (2) may be usefully extracted herein below : "18. Reference to court. - (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." "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 some one 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 some one 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 and, 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 awfully entitled thereto." 10. Sections 18(1) and 31(1) and (2) of the Act, in our considered view, have to be read conjointly so as to correctly understand the circumstances in which a claimant can be understood to be vested with a legal right to seek a reference of his claim for higher compensation. On such reading it is clear to us that to sustain a claim for a reference to the civil court under section 18 of the Act, the person interested is required not to accept the award and in a situation where the compensation amount, as awarded, has been accepted, such acceptance must be, under protest. A claimant, who receives the compensation awarded without demur, cannot, under the provisions of the Act seek a reference of his claim to higher compensation. 11. There is no manner of doubt that in Ajit Singh (supra) and Orissa Industrial Infrastructure Development Corporation (supra) as well as in District Collector Kakinada and Sujit Kumar Das (supra) the law has been laid down and reiterated that filing of an application under section 18 of the Act itself amounts to raising of protest. 11. There is no manner of doubt that in Ajit Singh (supra) and Orissa Industrial Infrastructure Development Corporation (supra) as well as in District Collector Kakinada and Sujit Kumar Das (supra) the law has been laid down and reiterated that filing of an application under section 18 of the Act itself amounts to raising of protest. But in the above noted cases the effect of an agreement under section 11(2) of the Act was not such considered as in the fact situation of aforesaid cases such consideration was not required. This is precisely what the learned Single Judge had held in the writ petition. 12. An argument has been made by the learned counsel for the appellant that the agreement relied upon by the learned Single Judge in the present case is not an agreement under section 11(2) of the Act and, therefore, the learned Single Judge had erred in taking the above view. According to the learned counsel, an agreement under section 11(2) of the Act is required to be executed by and between the owner(s) of the land, i.e., the persons interested and the beneficiary of the acquisition. In the present case the agreement was executed by and between the appellant as the owner of the land and the Collector. Therefore, the .aid agreement is not one under section 11(2) of the Act, it is argued. 13. The argument advanced cannot be accepted by the court in view of the clear language of section 11(2) of the Act, which would indicate that the agreement contemplated by the said provision of the Act has to be between all the persons interested in the land and with regard to the matters required to included in the award of the Collector. A "person interested" is defined by section 3(b) of the Act to include all persons claiming an interest in the compensation to be made on account of the acquisition of land under the Act. 14. The above view is capable of raising a question, as has been raised in the present case by the learned counsel for the appellant, that the agreement contemplated by section 11(2) of the Act notwithstanding the clear language expressed must necessarily be between the persons interested and the beneficiary of the acquisition. 14. The above view is capable of raising a question, as has been raised in the present case by the learned counsel for the appellant, that the agreement contemplated by section 11(2) of the Act notwithstanding the clear language expressed must necessarily be between the persons interested and the beneficiary of the acquisition. This is because an agreement between the persons interested to the exclusion of the beneficiary is capable of raising questions with regard to the acceptance of amount of compensation by the beneficiary though agreed upon by the persons interested. The question raised is capable of being answered by the terms of the provisions of the Act itself. The agreement between the persons interested does not bind the Collector, who is, in any case, required to be satisfied with regard to all the terms of such an agreement including the amount of compensation mentioned therein. In the event the Collector finds the compensation amount to be inflated or unacceptable, he need not pass an award in terms of the agreement but may proceed to determine the compensation payable by holding necessary enquiries in accordance with the provisions of the Act. 15. The decision of the Apex Court in Ishwarlal Premchand Shah (supra), relied on by the learned counsel for the appellant, does not lay down that an agreement under section 11(2) of the Act must be between the persons interested and the beneficiaries, as contended. While it is correct that the agreement before the Apex Court in that case was between the persons interested and the beneficiaries, which agreement was understood to be one under section 11(2) of the Act, what would be significant to be taken note of is the fact that such an agreement to which the beneficiary of the acquisition is a party can still be construed as an agreement between the persons interested by excluding/overlooking the execution of the same by the beneficiary. An agreement so long it is executed by the persons interested would still meet the requirement of section 11(2) of the Act even though the beneficiary may have signed the same. 16. In the present case the appellant is the sole owner of the land acquired and, therefore, he is the only person interested. The agreement executed by him, therefore, is an unequivocal and unambiguous acceptance of his readiness to accept the compensation amount mentioned therein. 16. In the present case the appellant is the sole owner of the land acquired and, therefore, he is the only person interested. The agreement executed by him, therefore, is an unequivocal and unambiguous acceptance of his readiness to accept the compensation amount mentioned therein. This is the real purport of an agreement visualized by section 11(2) of the Act, regardless of whether it is signed by one or more than one persons interested. Furthermore, a close scrutiny of the agreement in the present case clearly shows that the Collector did not sign the said agreement as a party thereto. The Collector merely accepted the agreement filed before him by the person interested, i.e., the appellant. That apart, the certificate of handing over of possession signed by the appellant and the receipt of the compensation amount of Rs. 38,70,000 signed by the appellant without expressing any reservation or protest, which are available on record, are capable of being construed by the court as unambiguous acts of acceptance of the compensation amount by the appellant without demur. In such circumstances, the reliance placed by the learned Single Judge on the judgment of the Apex Court in Wardington Lyngdoh and Others v. The Collector, Mawkirwat, AIR 1995 SC 2340 as providing an absolute answer to the issues raised in the present case must be held by us to be wholly correct. The facts in the case of Wardington Lyngdoh (supra) and those involved in the present case, we have noticed, are largely identical, thereby permitting no contrary view in the matter under consideration. 17. We are, therefore, of the view that this appeal is without any merit and/or substance. It is accordingly dismissed. The order dated 10.6.2005 passed by the learned Single is affirmed.