Aashrafbee Maujan Inamdar vs Competent Authority, I.E. Deputy Collector

Ravindra V. Ghuge, J.(Oral)—The Petitioner has expressed urgency and since the Respondents have no objection for the hearing of this matter that I have heard the learned Advocates appearing for the respective parties for quite sometime.

The admitted/undisputed facts emerging from the submissions of the litigating parties as well as the records are as under:-

(a) The land at issue is Gat Nos.54 and 55 situated at Aliabad, taluka Tuljapur, District Osmanabad.

(b) The Competent Authority published the Notification dated 13.10.2012 indicating the portion of the land for acquisition in Gat Nos.54 and 55. This notification was published under Section 3-D of the National Highways Act, 1956.

(c) The original title holder is the deceased father of the Petitioner.

(d) The first sale deed was executed in 1968 when the father of the Petitioner is said to have sold the land to the purchaser.

(e) The Respondent Nos.2, 3 and 4 are the third purchasers in order of sequence after the first sale deed was executed by the father of the Petitioner in 1968.

(f) A portion of the land has been acquired for the purpose of a National Highway under the National Highways Act, 1956.

(g) By a public notice published in the news papers dated 18.03.2013, 21 days'' notice for raising objections was given under Section 3-G(3).

(h) The Petitioner has not raised any objection pursuant to the public notice dated 13.10.2012 as well as 18.03.2013.

(i) The hearing on objections has taken place before the competent authority.

(j) For the first time, on 31.10.2013 the Petitioner has raised an objection before the competent authority contending therein that earlier sale entered into by her father is not binding upon her and that the compensation for the acquired land should not be disbursed to the Respondent Nos.2, 3 and 4. These objections are said to have been raised under Section 3-C.

(k) In December, 2013, the Petitioner has preferred R.C.S. No.348/2013 seeking declaration of ownership and permanent injunction against the Respondent Nos.2, 3 and 4 and another person. The said suit is pending adjudication.

(l) The date of the award determining the compensation is 24.07.2013.

(m) The order dated 03.04.2014 said to have been passed under Section 3-H(3), is impugned in this Writ Petition.

Insofar as the submissions on the provisions of the National Highways Act, 1956 are concerned, the Petitioner contends that she had no reason to object to the acquisition of land as it is meant for public purpose. She has, therefore, not responded to the public notice dated 13.10.2012. Similarly, she has not objected pursuant to the second public notice dated 12.03.2013 since she had nothing to say about the amount of compensation to be determined in relation to the acquired portion of the land. However, there are no such averments in the petition.

It is submitted that the application dated 31.10.2013 filed by the Petitioner needs to be construed to be an application under Section 3- H because the Petitioner is concerned about the apportionment of the amount of compensation in view of her claim to the extent of �th share in the said compensation. It is canvassed that the impugned order dated 03.04.2014 has been passed in the light of the application filed by the Petitioner dated 31.10.2013 and the said order is to be construed to have been passed under Section 3-H(2). There are no such averments in the petition.

The contention is that when several persons stake a claim or exhibit their interest in the amount deposited by the Acquiring Authority, the competent authority has to determine the persons who in it''s opinion are entitled to receive the amount payable to each of them. The grievance of the Petitioner is that the Respondent No.1- Competent Authority should have restricted his order to the extent of Section 3-H(3). The Petitioner would then have got an opportunity of challenging the said order before this Court.

A serious grievance is voiced against the impugned order on the ground that when the competent authority was dealing with an application and a claim under Section 3-H(3), the operative part of the impugned order travels beyond Section 3-H(3) and enters into the arena of Section 3-H(4). The Competent Authority does not have the power to disburse the amount in the face of the dispute and as such, while dealing with the dispute as regards the apportionment of the amount, the Competent Authority ought to have strictly followed Section 3-H(4) and referred the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. It is, therefore, submitted that the impugned order to the extent of disbursing the amount to the Respondent Nos.2, 3 and 4 is rendered without jurisdiction.

Shri V.D.Hon, learned Senior Counsel appearing on behalf of the Respondent Nos.2, 3 and 4, has delved upon the laxity on the part of the Petitioner. It is contended that the Petitioner was in deep slumber and had in no way even whispered before the Competent Authority as regards any share in the property and thereby, stake a claim to the portion of the compensation amount determined. In his submissions, had the Petitioner appeared at the earliest and which should be construed to be in response to the public notice dated 13.10.2013, the Respondents as well as the competent authority could have assessed the claim of the Petitioner. Having not so done, the Respondents were made to believe that there are no other claimants or disputants besides the three of them before the competent authority.

Mr.Hon further submits that the second opportunity was made available to the Petitioner when the public notice was published on 12.03.2013. Even at that juncture, there has been no response from the Petitioner. Thereafter, the award was pronounced on 24.07.2013, which evoked no reaction from the Petitioner.

Mr.Hon further submits that by way of an afterthought, with ulterior motives and to cause obstruction in the disbursement of the compensation amount, the Petitioner has filed an application/ complaint on 31.10.2013. Despite this background, the Respondent No.1- Competent Authority made every effort to consider the grievance of the Petitioner and thereby, granted several opportunities to the Petitioner to make out a case. So also, there are no pleadings in the petition as regards any specific challenge to the impugned order.

Mr.Hon submits that in order to facilitate a reasonable opportunity of hearing to the Petitioner, the Competent Authority posted the hearing on 11.02.2014, 25.02.2014 and 05.03.2014. The Petitioner appeared before the Respondent No.1- Competent Authority only on 11.02.2014 which was the first date and stated that her application dated 31.10.2013 (wrongly typed as dated 30.10.2013 in the impugned order) was the say of the Petitioner. Besides the said single page application, the Petitioner has not produced even a single document to at least indicate to the competent authority as to whether at any point in time her share in the property could be visible or could be demonstrated. She did not produce any evidence even to remotely suggest that she was the daughter of the erstwhile owner of the property who had sold the property in 1968.

Mr.Hon, therefore, submits that the Petitioner cannot put forth any contention against the Respondent No.1 as regards no opportunity of hearing since the impugned order is self explanatory. Having not availed the opportunity of addressing the Respondent No.1 and having not taken any efforts to establish her claim, the Petitioner now cannot raise a grievance about the impugned order and that too without any pleadings.

Mr.Hon in all fairness submits that the Respondent Nos.2, 3 and 4 are willing to file an affidavit in this Court that in the event R.C.S. No.348/2013 results in a conclusion upholding the claim of the Petitioner to the extent of �th share in the property and in the event any portion of the said share happens to be a part of that portion of the land which has been acquired, the Respondent Nos.2, 3 and 4 would deposit the amount to that extent with accrued interest before the Trial Court. Notwithstanding this statement, Mr.Hon prays that this Writ Petition is affected by laches on the part of the Petitioner and therefore, deserves to be dismissed.

Mr.Bhange, learned AGP has supported the impugned order. On the basis of the records available with him, he has confirmed the dates and events with regard to the said proceedings as have been recorded in the opening paragraph of this order. He further submits that the Respondent No.1 has disbursed the amount to the Respondent Nos.2, 3 and 4 on 15.04.2014 prior to the passing of the first order by this Court in this matter dated 03.05.2014.

After considering the rival submissions of the litigating parties, in my view, the issue turns upon the scope of the powers vested in Respondent No.1 under Section 3-H(3) and Section 3-H(4). For clarity, Sections 3-H(3) and 3-H(4) are reproduced herein below:-

"3-H. Deposit and payment of amount:-

(1) �.

(2) �.

(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.

(5) �.

(6) �."

The language appearing in Section 3-H(3), in my view, does not confine the claim in relation to the amount deposited under Section 3- H(1) by the Central Government only to those persons who have responded to the public notice dated 13.10.2012 and the second public notice dated 12.03.2013. The phraseology appearing in Section 3-H(3) empowers the competent authority to deal with the claim of any or several persons who disclose their interest in the amount deposited. The competent authority has to determine the persons who in it''s opinion are entitled to receive the amount payable to each of them. In the instant case, the Petitioner was one amongst the several persons who had staked a claim to the extent of her interest in the amount deposited.

Insofar as Section 3-H(4) is concerned, it pertains to a dispute that arises at the time of apportionment of the amount or any part thereof, to any person to whom some or any part thereof is payable. Section 3- H(4) has it''s operation after the conclusion is arrived at by the competent authority under Section 3-H(3). In the case in hand, the Respondent No.1 was expected to deliver an order under Section 3-H(3) to the extent of the claim made by the Petitioner in her application dated 31.10.2013. That was the stage when it could be said that under Section 3-H(3) the Competent Authority has determined the persons who in it''s opinion are entitled to receive the amount of compensation.

There is a distinction between arriving at the entitlement of the person and actual disbursement of the amount by way of apportionment. In this context, the issue of apportionment would arise only after the competent authority determines the entitlement of the claimants. As such, the competent authority should pass the order deciding the entitlement of the claimants. If thereafter, any dispute as regards apportionment of the amount was to crop up, he was expected to refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land was situated.

In the submissions of Mr.Hon as well as the learned AGP, the Respondent No.1 has decided the entitlement under Section 3-H(3) and thereafter, there was no dispute as regards the apportionment of the amount or any part thereof payable to any person whose claim has been upheld under Section 3-H(3). In their submissions, no fault can be found with the Respondent No.1 in disbursing the payment to the Respondent Nos.2, 3 and 4 in the light of the fact that they were held to be entitled to a portion of the compensation and there was no dispute amongst them. Since the Respondent No.1 has decided the entitlement and based on the same, disbursed the amount to those held to be entitled, the Petitioner does not appear in the picture under Section 3-H(4) as her claim has been rejected under Section 3-H(3).

The scheme of deposit and payment of the amount is found under Section 3-H. Section 3-H(3) and Section 3-H(4) have to be considered in tandem. Since the entitlement of the Respondent Nos.2, 3 and 4 was upheld by the competent authority and as there was no dispute amongst them as regards the apportionment of the amount or any part thereof, I do not find that the claim of the Petitioner would survive beyond Section 3-H(3) since her claim has been turned down with a reasoned order. That had left the competent authority to decide the apportionment of the amount as per Section 3-H(4). From that angle the Respondent No.1 has gone into the issue of apportionment and when it was found that there was no dispute amongst the persons to whom the amount of compensation was held to be payable under Section 3-H(3), the Respondent No.1 has proceeded to disburse the amount.

The impugned order has been passed on 03.04.2014. The Respondent No.1 has disbursed the amount on 15.04.2014. In the last paragraph of the impugned order, the Respondent No.1 has tried to balance the equities by recording that the Respondent Nos.2, 3 and 4 are being paid the compensation subject to the decision of the competent civil court in relation to R.C.S. No.348/2013 filed by the Petitioner. The Respondent No.1 has also taken care to record that if any authority or a court of law passes any order with regard to the disbursement of the amount, the Respondent Nos.2, 3 and 4 shall be duty bound to return the amount and deposit the same in the Court. The Petitioner sought to challenge the impugned order dated 03.04.2014 on 02.05.2014 in this petition.

Even before this Court, the Petitioner has not filed any document which could suggest that she has some share in the land or the compensation at issue. The Petitioner admits that her name does not appear in any revenue record or any other document to indicate her share in the land at issue.

In the light of the factual matrix as recorded above and in view of the scope of Section 3-H(3) and Section 3-H(4) having been interpreted in this order, this Writ Petition need not be kept pending in this Court.

Ends of justice would be met by directing the Respondent Nos.2, 3 and 4 to file an affidavit individually in this Court with copies being served on the Petitioner and other Respondents, indicating therein that, in the event the Civil Court or for the said reason any court of competent jurisdiction decides the issue raised by the Petitioner in R.C.S. No.348/2013 or in any other proceeding, upholding the claim of the Petitioner, the Respondent Nos.2, 3 and 4 shall be duty bound to deposit that portion of the amount as would be determined by the Court of competent jurisdiction along with interest from 15.04.2014 till the date of actually depositing the amount in the Court. Such affidavits shall be filed in this Court till 24th December, 2014. The said undertaking shall be an undertaking given to this Court and the Respondent Nos.2, 3 and 4 shall be duty bound to abide by it.

Learned AGP states that the presence of the Respondent No.1- Competent Authority be recorded as he is present in the Court. His presence is recorded.

In the light of the above, the Writ Petition is disposed of with the above observations. Needless to state, the apportionment of the compensation amount to the Respondent Nos.2, 3 and 4 shall be subject to the result of RCS No.348/2013. There will be no order as to costs.