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2023 DIGILAW 745 (BOM)

Mulla Abdul Razac v. Mulla Ibrahim

2023-03-16

M.S.SONAK

body2023
JUDGMENT/ORDER 1. Heard Mr A.D. Bhobe for the Petitioner and Mr John Lobo for Respondent No.1(e) in all these Petitions. The endorsement dtd. 8/11/2018 confirms that all the Respondents have been served. 2. This Court, by an order dtd. 25/10/2018, while issuing notices to the Respondents, had made it clear that all these Petitions would be taken up for final disposal at the admission stage. This was more so since proceedings before the Reference Court were also stayed by this Court. 3. Accordingly, Rule is issued in all these Petitions, and these Petitions are taken up for final disposal. 4. The challenge in this Petition is to the separate but identical orders dtd. 10/8/2018, dismissing the Petitioner's applications for impleadment as a party in the references under Sec. 30 of the Land Acquisition Act, 1894 (said Act) on the ground that though, factually a reference was made concerning the Petitioner, due to a clerical error on the part of the Collector's Office, the Petitioner's name remained to be included in the references forwarded to the District Court 5. The learned Reference Court, relying upon the decision of Shayamali Das vs. Illa Chowdhry and ors. - Appeal (Civil) 4632 of 2006, has held that Order 1, Rule 10(2) of CPC does not apply to a reference under Sec. 30 of the said Act. Therefore, the Petitioner's applications for impleadment in the three pending references were rejected. 6. The Reference Court has also noted that Sec. 30 of the said Act does not postulate any time limit as such. Therefore, a reference under Sec. 30 can be made at any point in time if such an application is made to the Collector. In short, the Reference Court virtually advises the Petitioner to approach the Collector once again and urge a fresh reference under Sec. 30 of the said Act because there is no time limit as such within which such a reference can be applied for or made. 7. Mr Lobo, learned Counsel for Respondent No.1(e), endorses the reasoning of the learned Reference Court by submitting that the Reference Court had no power or jurisdiction to implead the Petitioner as a party in the pending references. He relied upon Hafix Ismail Shaikh and ors vs. Special Land Acquisition Officer, Panvel, and ors. [ 2005 (3) Mh.L.J. 232 in support of this endorsement of the view taken by the Reference Court. 8. He relied upon Hafix Ismail Shaikh and ors vs. Special Land Acquisition Officer, Panvel, and ors. [ 2005 (3) Mh.L.J. 232 in support of this endorsement of the view taken by the Reference Court. 8. Hafix Ismail Shaikh (supra) holds that the parties, who had not applied for enhancement, cannot be entitled to enhancement in the absence of their applying for enhancement against their share. Accordingly, the issue involved in Hafix Ismail Shaikh (supra) was different from the issue involved in the present Petitions. Similarly, even the issue in Shayamali Das (supra) was different. The third party, who had never raised any dispute before the Land Acquisition Officer about apportionment or enhancement, attempted to seek impleadment directly before the Reference Court in the pending reference under Sec. 30 of the said Act. It is in the above circumstances that it was held that the Reference Court could not, by resorting to the provisions of Order 1, Rule 10 of CPC, broaden the scope of the reference. 9. However, the position in the present Petitions is entirely different. Here, the Petitioner, even within the time prescribed for applying a reference under Sec. 18 of the said Act, had applied the Collector/LAO raising disputes of the rate and apportionment. In these applications, the Petitioner had claimed the co-ownership regarding the acquired property. Some genealogy, in support of such a claim, was also provided. Besides, the Petitioner had expressed dissatisfaction with the quantum of compensation, as also the issue of apportionment was clearly raised by the Petitioner before the Collector/LAO. 10. Since there were disputes amongst the co-owners or the alleged co-owners, the Collector/LAO made a reference under Sec. 30 of the said Act to the Reference Court vide letter dtd. 28/2/2014. However, in this letter, the Petitioner's name was omitted. This position was accepted by the Collector/LAO in his letter dtd. 12/4/2017, addressed to the Reference Court. 11. The communication dtd. 12/4/2017 is extremely important and, therefore, the same is transcribed below for the convenience of reference : " No.2/2/2011/LAND/M-532 Office of the Deputy Collector and S.D.O. Ponda Sub-Division, Pond, Goa. dtd.: 12/04/2017. To, The District and Sessions Judge, District and Sessions Court, Ponda-Goa. Sub: L.A. for Establishment of transport office and other infrastructure at Ponda in Ponda Taluka. Sir, In continuation of our letter No. 2/2/2011/LAND/666 dtd. dtd.: 12/04/2017. To, The District and Sessions Judge, District and Sessions Court, Ponda-Goa. Sub: L.A. for Establishment of transport office and other infrastructure at Ponda in Ponda Taluka. Sir, In continuation of our letter No. 2/2/2011/LAND/666 dtd. 28/02/2014, on account of sheer omission on our part, the name and address of the interested party in relation to the land acquired for the purpose of establishing transport office and other infrastructure at Ponda was left out. In order to fill up the gap the name of following person may also be taken into consideration while determining the quantum of shares u/s 30 of the L.A. Act, 1894. 1. Mullam Abdul Ruzac FN. 1stMoniopio Police Qts. Comba, Margao, Goa. Yours faithfully, Sd/- (Paresh M. Faldessai) Deputy Collector and S.D.O. Ponda Sub-Division, Ponda-Goa." 12. Mr Bhobe, learned Counsel for the Petitioner submitted that the Petitioner made inquiries with the Collector/LAO about the fate of their references. Accordingly, they were informed that the references have already been made to the Reference Court, and the Petitioner should inquire with the Reference Court. Upon undertaking such inquiries, the Petitioner realised that though the reference had been made, his name was inadvertently excluded from the letter by which such reference was made. 13. In the above peculiar circumstances, the Petitioner applied for him to be included in the pending references. These applications were, however, rejected by the impugned orders dtd. 10/8/2018 for the above reasons. Hence, the present Petitions. 14. The Petitioner, in this case, as noted above, had raised the dispute about his entitlement and apportionment before the Collector/LAO. Though no period of limitation as such is prescribed, the record bears out that applications raising such dispute were filed before the Collector/LAO within the time limit prescribed, even for seeking reference under Sec. 18 of the said Act. A reference under Sec. 18 is considerably wider than a reference under Sec. 30 of the said Act. Sec. 18 refers to 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 is 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. 15. Sec. 30 of the said Act, refers to disputes as to apportionment. 15. Sec. 30 of the said Act, refers to disputes as to apportionment. It provides that when an amount of compensation has been settled under Sec. 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. 16. In this case, the record bears out that not only was the Petitioner's application raising a dispute of apportionment duly made to the Collector/LAO, but the Collector/LAO had every intention to refer even this dispute for determination of the Reference Court. It is only due to some inadvertent clerical error that the Petitioner's name was omitted. This is evident and, even otherwise, accepted by the Collector/LAO in his communication dtd. 12/4/2017 transcribed above. 17. In the above peculiar circumstances, the Reference Court should have included the Petitioner in the pending references rather than advising the Petitioner to approach the Collector again for fresh references. Even if, such fresh references were to be made, such fresh references would have to be decided along with the pending references. Such multiplicity should have been avoided in the peculiar facts and circumstances of the present case. 18. As pointed out earlier, it is not a case where the Petitioner raised no dispute of apportionment before the Collector/LAO, but, for the first time, sought impleadment before the Reference Court to raise such dispute of apportionment. However, the Reference Court did not consider this crucial factor. Further, the Reference Court, with respect, erred in refusing to take cognizance of the Collector/LAO's above-transcribed communication dtd. 12/4/2017, though the Petitioner's contention was mainly based upon the said communication. 19. The Rule is made absolute in all these Petitions for all the above reasons. Accordingly, the impugned orders dtd. 10/08/2018 are set aside. The Reference Court is directed to include the Petitioner in the pending references so that all issues of apportionment are determined in the pending references by affording reasonable opportunity to all the parties to establish their own claims. 20. It is made clear that this Court has not even remotely gone into the issues of actual apportionment, entitlement, etc. The Reference Court is directed to include the Petitioner in the pending references so that all issues of apportionment are determined in the pending references by affording reasonable opportunity to all the parties to establish their own claims. 20. It is made clear that this Court has not even remotely gone into the issues of actual apportionment, entitlement, etc. Therefore, all such questions are left open to be determined by the Reference Court in accord with the law and the evidence that the parties produce before the Reference Court. Further, in this regard, all contentions of all parties are kept explicitly open. 21. The Rule is made absolute in the above terms, without any cost orders. Misc. Civil Applications, if any, are also disposed of. 22. Ad interim orders granted earlier, are hereby, vacated. Parties are directed to appear before the Reference Court on 3/4/2023 at 10.00 a.m. If any of the Respondents do not appear, the Reference Court must issue notices to them, or if any Counsel is appearing on their behalf, then to such Counsel.