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2018 DIGILAW 132 (ALL)

PRASHANT v. STATE OF U. P.

2018-01-12

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2018
JUDGMENT By the Court.—We have heard Sri Shiv Kant Mishra and Sri Kamlesh Kumar Mishra, learned counsel for the petitioners, Sri Suresh Singh, learned Standing Counsel for respondents No. 1 to 3, Sri Shivam Yadav for respondent No. 4 and Sri Alok Kumar Yadav for respondents No. 5 to 9. 2. By means of this petition filed under Article 226 of the Constitution of India, petitioners have prayed for quashing of the order dated 19.1.2016 passed by the Additional District Magistrate (Land Acquisition)/Special Land Acquisition Officer, Gautam Budh Nagar allowing the application made by the respondents No. 5 to 9 and referring the matter under Section 30 of the Land Acquisition Act, 1894 (for short the ‘Act’) for adjudication by the Court. 3. Dispute between the parties is in respect of plot No. 60, 252, 292 total area 6-7-10 situate in village Bhangel Begumpur, Pargana and Tehsil Dadri, district Gautam Budh Nagar. The said plots alongwith other plots were subject-matter of acquisition by the State Government for planned development by the New Okhla Industrial Development Authority (hereinafter referred to as the ‘NOIDA’). Notification under Section 4 of the Act was published in the gazette on 5.1.1986 and declaration under Section 6 of the Act was made on 18.10.1986. The award was declared on 11.5.1988 determining the compensation to @ Rs. 14.92 per sq. yard. The award was prepared in the name of Sher Singh and Smt. Sharbati, both having equal share. It may be relevant to refer the pedigree of the disputing parties as culled out from the pleadings: Ghasi Ram (Deceased) Mehu (Deceased) Keval Singh (died issue less) Raghuveer Singh (deceased) Sher Singh (deceased) Smt. Sharbati Shatto (deceased) Shanti (deceased) Mange Ram (deceased) Mam Chand (Resp. No. 5) Raj Kumar (Resp. No. 6) Ram Kumar (deceased) Smt.Beena (Pet. No. 3) Smt. Suneeta (Resp. No. 7) Prashant (Pet. No. 1) Rahul (Pet. No. 2) Chetan (Resp. No. 8) Jugunoo (Resp. No. 9) 4. Aggrieved by the award declared by the Special Land Acquisition Officer, Sher Singh and Smt. Shabati (predecessor-in-interest of the petitioners) jointly filed objection under Section 18 of the Act claiming compensation @ Rs. 250/- per sq. yard (including 15% interest per annum, additional amount under Section 23(1)(4) @ 12% and solatium), which was referred to the District Judge and was registered as L.A.R. No. 263 of 1989. 250/- per sq. yard (including 15% interest per annum, additional amount under Section 23(1)(4) @ 12% and solatium), which was referred to the District Judge and was registered as L.A.R. No. 263 of 1989. The District Judge vide order dated 8.3.1991 enhanced the rate determined by the Special Land Acquisition Officer to Rs. 50 per sq. yard and also awarded other consequential benefits. 5. Not satisfied with the judgement and award made by the District Judge, the claimants preferred a First Appeal No. 931 of 2002 before this Court. The said appeal was connected with other identical appeals filed by various other claimants. The appeals were partly allowed vide judgement and award dated 11.11.2014 holding that the claimants are entitled to payment of compensation @ Rs. 297/- per sq. yard alongwith other statutory dues in accordance with law. 6. After the award was made, Sher Singh died. An application dated 27.5.1991 was made by Mange Ram before the reference Court claiming to be substituted as heir and legal representative of Sher Singh on the basis of an alleged will dated 19.5.1990 said to have been executed by Sher Singh in his favour. Pleadings go to show that it was an unregistered will. 7. During the pendency of the appeal before this Court, Mange Ram also died and the present petitioners are his heirs and legal representatives. 8. After the decision of the first appeal, respondents No. 5 to 9 herein filed a misc. objection dated 7.4.2015 before the Special Land Acquisition Officer alleging that the petitioners are trying to receive compensation on the basis of a forged will and the same may not be released in their favour. 9. The Special Land Acquisition Officer vide impugned judgement and award dated 19.1.2016 after considering the objection and hearing both the parties, referred the dispute under Section 30 of the Act to the District Judge for adjudication. 10. Learned counsel for the petitioners contends that after finalisation of enhancement of compensation and preparation of decree under Section 26(2) as well as under Section 54 of the Act by this Court in appeal, the Collector will have no jurisdiction to refer a matter on an application by a third party under Section 30 of the Act. 11. 10. Learned counsel for the petitioners contends that after finalisation of enhancement of compensation and preparation of decree under Section 26(2) as well as under Section 54 of the Act by this Court in appeal, the Collector will have no jurisdiction to refer a matter on an application by a third party under Section 30 of the Act. 11. In reply, it is contended by learned counsel for the respondents that a person who has not appeared before the Collector can raise a dispute, as to the apportionment or as to the person to whom it is payable, before the Collector requesting to make a reference under Section 30 of the Act for determination of his right to compensation. It is further submitted that he can ask for a reference to the Court for determination of his right to receive compensation which may have existed before the award or which may have devolved upon him after finalization of the award. 12. We have considered the argument advanced by learned counsel for the parties and perused the record. 13. The Special Land Acquisition Officer, after considering the objection and analyzing the material brought on record by the parties, finding that there was a dispute regarding title and apportionment, referred the matter to the Court for adjudication under Section 30 of the Act. 14. The primary issue arising for our consideration is whether the Special Land Acquisition Officer could have entertained an application under Section 30 of the Act after finalization of the award and decision of the first appeal filed under Section 54 of the Act. 15. Before proceeding to consider the issue, it may be relevant to refer to relevant provisions relating to compensation and payment to eligible persons. “11. 15. Before proceeding to consider the issue, it may be relevant to refer to relevant provisions relating to compensation and payment to eligible persons. “11. Enquiry and award by Collector.—[(1)] On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8 and into the value of the land [at the date of the publication of the notification under Section 4, sub-section (1)], and into the respective interest of the persons claiming the compensation, and shall make an award under his hand of,- (i) the true area of the land ; (ii) the compensation which in his opinion should be allowed for the land ; and (iii) the 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 : Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf : Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. [(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act].” 16. (4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act].” 16. Section 18 of the Act give power to the Collector to make a reference to the Court where there is a dispute/objection relating to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. 17. Similarly, Section 30 of the Act also empowers the Collector to make a reference to the Court, if any dispute arises after the amount of compensation has been settled under Section 11 of the Act as to the apportionment of the amount of compensation or any part thereof, or the persons to whom the same or any part thereof is payable. Both Sections 18 and 30 of the Act are reproduced herein : “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. (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. 30. Dispute as to apportionment.—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.” 18. A perusal of the scheme of the Act goes to show that it contains two provisions. A perusal of the scheme of the Act goes to show that it contains two provisions. Section 18(1) and Section 30 of the Act which empower the Collector to refer to the Court a dispute for adjudication in respect of apportionment of compensation or as to the person to whom it is payable. By virtue of Section 18(1), the Collector is enjoined to refer a dispute as to apportionment or as to right to receive compensation on an application of a person interested who has not accepted the award made within the time limit prescribed by sub-section (2) of the said Section. Whereas under Section 30 of the Act, the Collector is enjoined to refer to the Court in case there is any dispute as to apportionment of the compensation or any part thereof is payable after the compensation is settled in terms of Section 11 of the Act. 19. The powers exerciseable by the Collector conferred upon him under Section 18(1) and by virtue of Section 30 of the Act are distinct and do not overlap. 20. A conjoint reading of Section 11 and 18 of the Act makes it clear that any interested person who is present personally or through a representative at the time of making of the award or upon whom a notice under Section 12(2) of the Act has been served, must, if he does not accept the award, apply to the Collector within the time limit prescribed under sub-section (2) of Section 18 for referring the matter to the Court for adjudication of the dispute be it in respect of measurement of land, or the amount of compensation, or the person to whom it is payable or apportionment of the compensation amongst the person interested. 21. On the other hand, under Section 30 of the Act the Collector is empowered to refer to the Court for adjudication a dispute raised as to the apportionment of the amount of compensation or any part thereof and also in respect of person to whom the same or any part thereof is payable. This power is exerciseable by the Collector after the amount of compensation is settled under Section 11 of the Act. 22. This power is exerciseable by the Collector after the amount of compensation is settled under Section 11 of the Act. 22. Under Section 30 of the Act, an application can be made by a person for determination of his right to receive compensation which may have existed before the award or which may have devolved upon him since after making of the award. 23. Hon’ble Apex Court in the case of G H Grant v. State of Bihar, AIR 1966 SC 237 , observed in paragraph 18 as under : “18. The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act: it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in S. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved.” 24. The argument advanced before the Hon’ble Apex Court in the aforesaid case that in view of the provision of Section 31 of the Land Acquisition Act, the Collector is legally bound to tender payment of compensation awarded by him to the persons found entitled to the same according to the award which implies that a right to receive any amount of compensation only vests with the person to whom compensation is directed to be paid under the award and therefore, the only person who can raise a dispute under Section 30 are those whose names are set out in the award, was rejected by the Hon’ble Apex Court by making following observations : “This contention stands refuted by the plain terms of Section 30. The Collector is not authorized to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. The Collector is not authorized to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between 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 appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under Section 30 or in a separate suit.” 25. In the case in hand, admittedly there is a dispute in respect of the right of the respondents herein to receive the compensation as also in respect of apportionment between the petitioners and the respondents. Equally, admitted is the fact that the contesting respondents were not present before the Collector at the time of making of the award. This being the admitted factual situation, we find no infirmity in the impugned order passed by the Collector referring the dispute for adjudication by a Court in exercise of powers conferred by Section 30 of the Act. 26. In view of the above facts and discussions and the legal proposition settled by the judicial pronouncements of the Hon’ble Apex Court in the case of G H Grant (Supra), the argument advanced on behalf of the petitioners that after finalization of enhancement of compensation by this Court in appeal, the Collector will have no jurisdiction to refer a matter on an application by a third party under Section 30 of the Act has no legs to stand. The award and the decree passed by this Court is only conclusive between the Collector and the persons interested who were present before him at the time of making of the award and not amongst the persons interested to receive. The award and the decree passed by this Court is only conclusive between the Collector and the persons interested who were present before him at the time of making of the award and not amongst the persons interested to receive. The Collector having no power to adjudicate upon the title to receive compensation rightly referred the dispute for adjudication by the Court and the impugned order does not suffer from any legal infirmity. 27. Writ petition accordingly fails and stands dismissed. 28. However, in the facts and circumstances, we do not make any order as to costs.